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Cornell University Library 
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 A selection of cases on evidence :f or th 
 
 3 1924 020 200 725 
 
Cornell University 
 Library 
 
 The original of this bool< 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/cu31924020200725 
 
SELECTION OF CASES 
 
 ON 
 
 EVIDENCE 
 
 FOR THE USE OF STUDENTS OF LAW 
 
 COMPILED AND EDITED BY 
 
 JOHN HENRY .V^GMORE 
 
 PKOFESSOR OF THE LAW OF EVIDENCE IN NORTHWESTERN 
 UNIVERSITY LAW SCHOOL 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1906 
 
Copyright, 1906, 
 
 BY 
 
 JOHN H. WIGMORB. 
 
PREFACE 
 
 This Collection is based upon the needs of a class in Evidence 
 as experienced by the compiler in his own work. In choosing 
 the specific cases, probably no two instructors would precisely 
 agree; and it is hardly worth while to attempt to give the reasons 
 for this particular selection. 
 
 Only one or two explanations need to be made. As to the 
 comparative brevity of the cases, it will be found that, while 
 irrelevant material has been carefully pruned out, the effort has 
 been made to retain as full a statement of the facts as is neces- 
 sary for mental discipline in studying the issue before the solu- 
 tion is reached in the judge's exposition. For the preliminary 
 statements of fact the compiler is responsible; but they are made 
 up of verbatim excerpts from the report itself, wherever possible. 
 
 As to the lack of citations of additional authorities by case- 
 title in the notes, these are supplied by references to the appro- 
 priate sections of the compiler's treatise on Evidence. This method 
 seemed to be more satisfactory; for it saved much space for 
 additional cases, and it provided with sufRcient convenience many 
 more citations than could have been here printed; it also avoided 
 the disadvantages of a fragmentary list of authorities, which might 
 be misleading for lack of the accompanying explanations to be 
 found in the treatise. 
 
 As to the order of topics, the compiler ventured to follow 
 that of his own treatise above-mentioned; for it naturally seemed 
 to him to be the most satisfactory. The only variations have 
 been two, and these were based on an experience as to the needs 
 of students. First, the topic of Authentication of Documents has. 
 been placed so that it will be studied before the Hearsay exceptioa 
 for Proof by Official (Certified) Copies. Secondly, the subject 
 of Conduct as evidence of Guilty Consciousness has been placed 
 
 iii 
 
IV PREFACE. 
 
 under the head of Admissions by Conduct; where, indeed, it has 
 some claim to belong in legal theory also. 
 
 Since a collection like this must have some relation to the 
 instructor's own plan and method of teaching the subject of Evi- 
 dence, it may be worth while to explain the plan of the course 
 actually employed by the compiler in connection with the use of 
 this book. It falls into three parts, v/ith a possible fourth part 
 not yet put into practice : 
 
 1. Reading in Legal History. The first four chapters of Pro- 
 fessor Thayer's Preliminary Treatise on Evidence are to be read, 
 in private study, during the first term, and the reading tested by a 
 simple examination at the end of the term. 
 
 2. Study and Discussion of Cases. The staple of the course 
 consists in the study and discussion of the book of cases, with 
 lectures and additional references. The examination consists in 
 a paper of problems or hypothetical cases, and occurs at the end 
 of the course. 
 
 3. Practical Drill. This consists of two parts : 
 
 a. During the first term, and after finishing the topic 
 of Impeachment of Witnesses: One student, supplied by the in- 
 structor with a memorandum of answers, takes the witness' chair; 
 two others act as counsel; the facts of a supposed case, in ten 
 or twenty words, are stated by the instructor; a question involv- 
 ing some rule is read to the witness (either by the instructor or 
 by the offering counsel) ; the opposing counsel, immediately object- 
 ing, must state the ground of his objection, and the offering 
 counsel must answer the objection; the instructor then rules upon 
 it. Neither counsel knows beforehand what question will be asked. 
 Two or three such exercises can be finished in the first quarter of 
 the hour. They have proved to be extremely useful in familiar- 
 izing the student with the practical and personal handling of the 
 rules and in forcing a ready knowledge of them. The danger of 
 a false appearance of certainty in them and of the inaccuracy 
 inherent in rough-and-ready rulings can be counteracted by the 
 comments of the instructor. 
 
 b. In the second term, but not until finishing the rules affect- 
 ing proof of documents, advanced exercises with the same general 
 
PREFACE. 
 
 object as the foregoing ones. Here the work is assigned some 
 days or weeks beforehand, and. the cases are taken up in turn, 
 during the first quarter-hour, either in arbitrary order or on a 
 court calendar. Simple examples, abbreviated, are these: "In 
 such-and-such a case, impeach Witness A by conviction of petit 
 larceny"; "In such-and-such a case, introduce a press-copy of a 
 letter sent by the plaintiff to the defendant" ; "Prove a judgment 
 rendered in the M. County Court of Iowa"; "Offer the Revised 
 Statutes of Indiana"; "Prove a deed from A to B recorded in 
 M. County, etc."; "Offer the deposition of A, taken in a cause, 
 etc." Some use of common forms will thus occasionally be 
 involved; but this element need play only a small part in 
 the work, and should not be over-emphasized. A main object 
 is to cultivate the doing of such things intelligently according 
 to principle, and thus to save the student from later falling into 
 the slavery of printed forms and arbitrary local habits, as he is 
 perhaps apt to do if he leaves the law school without having made 
 any attempt to bridge the gap between principle and practice. 
 
 The foregoing parts can be covered in a course occupying 
 two lecture-hours a week for two terms, i. e. one year, or about 
 sixty-four hours. If an additional hour for half a year can be 
 obtained, the following further part seems worth taking up: 
 
 4. Study of Evidential Strategy and Tactics in Trials. Two 
 complete trials may be taken, one English and one American, 
 both to be of classical merit as examples and of great interest 
 in their facts. The class is first to peruse the trial as a whole; 
 then to take it up in parts, and to analyze and discuss the various 
 problems of management of proof; asking, first as to the plaintiff 
 or prosecutor and then as to the defendant, what were from his 
 point of view the strong and the weak points of his case, what 
 the proper features of emphasis, what the preparatory caution, and 
 what the best order of presenting the witnesses. Then the testi- 
 mony of individual witnesses is to . be examined and discussed, 
 the need or utility of specific questions, the total effect of his 
 testimony. Then the proper lines of closing argument on the 
 testimony would be considered, and the actual arguments com- 
 pared therewith. In these and other ways, the analysis would 
 
VI PREFACE. 
 
 develop in useful fashion a comprehension of the strategy and the 
 tactics necessary in some degree or other in every trial, and prac- 
 tised with more or less conscious skill by every experienced trial- 
 advocate. — But there are two almost insuperable obstacles in the 
 way of this valuable adjunct to a course in Evidence; first, it 
 must be conducted by a practitioner who unites a warm interest 
 in the art as such and a large experience in trials; and this 
 combination is rare; secondly, two suitable trials must be found, 
 and a reprint must be in the hands of each member of the class. 
 The present compiler had hoped to include in this volume two 
 such trials, with a view to making feasible this branch of the 
 work; but no American trial, suitable in compass and in other 
 necessary features, and fully reported, has thus far met his search. 
 The plan is mentioned here in the hope that it will attract the 
 att-ention of some one interested in the subject, who may be more 
 fortunate. 
 
 J. H. W. 
 
 Northwestern University Law School, 
 Chicago, March 4, 1906. 
 
CONTENTS 
 
 Preface. 
 Abbreviations. 
 
 INTRODUCTORY. 
 
 1. Bentham, Rationale of Judicial Evidence. 
 
 2. Holmes, The Common Law. 
 
 3. Wigmore, Treatise on Evidence. 
 
 4. Lord Melville's Trial. 
 
 5. Statutes. 
 
 6. Wigmore, Treatise on Evidence. 
 
 BOOK I: ADMISSIBILITY OF EVIDENCE. 
 INTRODUCTORY. 
 
 7. Wigmore, Treatise on Evidence. 
 
 8. Thayer, Preliminary Treatise on Evidence. 
 
 9. Irish Society v. Derry. 
 
 10. People V. Doyle. 
 
 11. Chicago City R. Co. v. Carroll. 
 
 12. Rush V. French. 
 
 13. Wolverton v. Commonwealth. 
 
 14. Wright V. Sharp. 
 
 15. Rush V. French. 
 
 PART I: RELEVANCY. 
 
 16. Starkie, Treatise on Evidence. 
 
 17. Commonwealth v. Webster. 
 
 TITLE I: CIRCUMSTANTIAL EVIDENCE. 
 
 18. Sidgwick, Treatise on Fallacies. 
 
 19. Cohn V. , Saidel. 
 
 20. Amoskeag Manufacturing Co. v. Head. 
 
 Sub-title I: Evidence to Prove a Human Act. 
 J. Character: 
 
 21. Regina v. Rowton. 
 
 vii 
 
VUl CONTENTS. 
 
 22. Commonwealth v. Hardy. 
 
 23. McNally, Treatise on Evidence. 
 
 24. Turner's Trial. 
 
 25. Thompson v. Chtrrch. 
 
 26. Hein v. Holdridge. 
 
 27. Tenney v. Tuttle. 
 
 28. State V. Manchester & Lawrence Railroad. 
 
 29. Scott V. Sampson. 
 2. Sundries : 
 
 30.' People V. Arnold. 
 
 31. Commonwealth v. Webster. 
 
 32. Regina v. Exall. 
 
 Sub-title II : Evidence to Prove a Human Quality or Condition, 
 
 J, Character: 
 
 33. Harrison's Trial. 
 
 34. Davison's Trial. 
 
 35. Regina v. Oddy. 
 
 36. People V. Shay. 
 
 37. Clarke v. Periam. 
 
 38. United States v. Holmes. 
 
 39. Miller v. Curtis. 
 
 40. Cunningham v. R. Co. 
 2. Knowledge: 
 
 41. Chicago V. Powers. 
 
 42. Baulec v. R. Co. 
 J. Intent and Design: 
 
 43. Regina v. Cooper. 
 
 44. Coleman v. People. 
 
 45. Bottomley v. United States. 
 
 46. Blake v. Assurance Co. 
 
 47. State V. Lapage. 
 
 48. Commonwealth v. Robinson. 
 
 49. Hollingham v. Head, 
 jif. -Motive: 
 
 50. State V. Kent (Pancoast). 
 
 Sub-title III.: Evidence to Prove External Events, Causes, Con- 
 ditions, Qualities, Etc. 
 
 51. Emerson v. Lowell Gaslight Co. 
 
 52. Hunt V. Lowell Gaslight Co. 
 
 53. Darling v. Westmoreland. 
 
 54. Phillips V. Willow. 
 
 55. Bemis v. Temple. 
 
 56. Central Vermont R. Co. v. Soper. 
 
 57. Maynard v. Buck. 
 
CONTENTS. IX 
 
 TITLE II: TESTIMONIAL EVIDENCE (WITNESSES). 
 
 Sub-title I: Qualifications and Disqualifications of Witnesses. 
 
 58. Wigmore, Treatise on Evidence. 
 
 1. Insanity, Infancy, Infamy: 
 
 59. Regina v. Hill. 
 
 60. Walker's Trial. 
 
 61. Rex V. Brasier. 
 
 62. Gilbert, Treatise on Evidence. 
 
 63. Greenleaf, Treatise on Evidence. 
 
 64. Vance v. State. 
 
 2. Experience : 
 
 65. Kelley v. Richardson. 
 
 66. Vander Donckt v. Thelusson. 
 
 67. Evans v. People. 
 5. Interest: 
 
 68. Gilbert, Treatise on Evidence. 
 69-. Greenleaf, Treatise on Evidence. 
 
 70. Bentham, Rationale of Judicial Evidence. 
 
 71. Stephens v. Bernays. 
 
 72. People V. Tyler. 
 
 73. Collins V. People. 
 jf. Marital Relationship: 
 
 74. Gilbert, Treatise on Evidence. 
 
 75. Common Law Practice Commission's Report, 
 
 76. William & Mary College v. Powell. 
 
 5. Knowledge : 
 
 'j'j. Wigmore, Treatise on Evidence. 
 
 78. Bushel's Case. 
 
 79. Bushnell's Trial. 
 
 80. Starkie, Treatise on Evidence. 
 
 81. Parnell Commission's Proceedings. 
 
 82. Carpenter's Estate. 
 
 83. Lord Ferrers v. Shirley. 
 
 84. Eagleton v. Kingston; Wade v. Broughton. 
 
 85. Rowt's Administratrix v. Kile's Administrator. 
 
 86. De Berenger's Trial. 
 
 6. Recollection : 
 
 87. State V. Flanders. 
 
 88. Acklen's Executors v. Hickman. 
 
 89. Rex V. St. Martin's. 
 
 90. Doe V. Perkins. 
 
 91. Burrough v. Martin. 
 
 92. Mayor, etc., of New York v. Second Ave. R. Co. 
 
 93. Lawes v. Reed. 
 
X CONTENTS. 
 
 94. Henry v. Lee. 
 
 95. Huff V. Bennett. 
 
 96. Rex V. Ramsden. 
 
 7. Mode of Narrating or Delivering Testimony: 
 
 97. Wigmore, Treatise on Evidence. 
 
 98. Chitty, Treatise on The Practice of the Law. 
 
 99. Hansard's Parliamentary Debates. 
 100. Lott V. King. 
 
 loi. Parnell Commission's Proceedings. 
 
 102. Bishop of Lincoln's Trial. 
 
 103. Allen V. Seyfried. 
 
 104. Ing's Trial. 
 
 105. Archer v. R. Co. 
 
 106. Allen V. Rand. 
 
 Sub-title II : Impeachment of Witnesses. 
 
 107. Wigmore, Treatise on Evidence. 
 
 1. Who may be Impeached : 
 
 108. Fletcher v. State. 
 
 109. BuUer, Treatise on Trials at Nisi Prius. 
 no. Whitaker v. Salisbury. 
 
 111. May, Article on Some Rules of Evidence. 
 
 112. Wright V. Beckett. 
 
 113. Bullard v. Pearsall. 
 
 114. Statutes. 
 
 2. Moral Character: 
 
 115. Macclesfield's Trial. 
 
 116. Rex V. Watson. 
 
 117. State V. Randolph. 
 
 2. Bias and Interest: 
 
 118. Ellsworth V. Potter. 
 
 119. Trinity County Lumber Co. v. Denham. 
 
 4. Conduct as Evidence of Character: 
 
 120. Rookwood's Trial. 
 
 121. Oxier v. United States. 
 
 122. People V. Jackson. 
 
 123. State V. Greenburg. 
 
 124. Rex V. Watson. 
 
 125. Regina v. Castro (Tichborne). 
 
 126. Third Great Western Turnpike Co. v. Loomis. 
 
 5. Contradiction by Other Witnesses: 
 
 127. Whitebread's Trial. 
 
 128. Castlemaine's Trial. 
 
 129. Blakey's Heirs v. Blakey's Executors. 
 
CONTENTS. XI 
 
 6. Self -Contradiction: 
 
 130. Berkeley Peerage Trial. 
 
 131. Attorney-General v. Hitchcock. 
 
 132. The Queen's Case. 
 
 133. Downer v. Dana. 
 
 Sub-title III: Admissions of Parties. 
 
 134. State V. Willis. 
 
 135. Heane v. Rogers. 
 
 136. Corser v. Paul. 
 
 137. Collins V. Mack. 
 
 7. Admissions by Privies in Title or Obligation: 
 
 138. Franklin Bank v. Pennsylvania D. & M. S. N. Co. 
 
 139. Gibblehouse v. Stong. 
 
 140. Cuyler v. McCartney. 
 
 2. Implied Admissions: 
 
 141. Commonwealth v. Kenney. 
 
 142. Home Tooke's Trial. 
 
 143. Fairlie v. Denton. 
 
 144. Hartford Bridge Co. v. Granger. 
 
 145. Craig dem. Annesley v. Anglesea. 
 
 146. Alberty v. United States. 
 
 147. Armorie v. Delamirie. 
 
 148. M'Reynolds v. M'Cord. 
 
 3. Confessions in Criminal Cases: 
 
 149. State V. Novak. 
 
 150. Warickshall's Case. 
 
 151. Regina v. Moore. 
 
 152. Regina v. Baldry. 
 
 153. Hendrickson v. People. 
 
 154. People V. McMahon. 
 
 155. Teachout v. People. 
 
 Sub-title IV: Rehabilitation of Witnesses. 
 
 156. People V. Rector. 
 
 157. Gertz V, Fitchburg R. Co. 
 
 158. Stewart v. People. 
 
 TITLE III: REAL EVIDENCE (AUTOPTIC 
 PROFERENCE). 
 
 159. Gentry v. McMinnis. 
 
 160. Ing's Trial. 
 
 161. Rules for Views. 
 
XU CONTENTS. 
 
 PART II: RULES OF AUXILIARY PROBATIVE 
 
 POLICY. 
 
 162. Wigmore, Treatise on Evidence. 
 
 TITLE I: QUANTITATIVE (OR, SYNTHETIC) RULES. 
 
 Sub-title I: Rules as to the Number of Witnesses Required, or 
 THE Corroboration of Single Witnesses. 
 
 1. General Principle: 
 
 163. Thayer, Preliminary Treatise on Evidence. 
 
 164. Wigmore, Treatise on Evidence. 
 
 165. Corpus Juris Romani et Canonici. 
 
 166. Sidney's Trial. 
 
 167. Stephen, History of the Criminal Law. 
 
 168. Best, Treatise on Evidence. 
 
 169. Callanan v. Shaw. 
 
 170. Bourda v. Jones. 
 
 2, Exceptional Rules for Specific Issues: 
 
 171. Statutes. 
 
 172. Rex V. Muscot. 
 
 173. Best, Treatise on Evidence. 
 
 174. Pember v. Mathers. 
 
 175. Gresley, Treatise on Evidence in Equity. 
 
 176. Attwood V. Small. 
 
 177. Swinburne, Treatise on Wills. 
 
 178. Statute of Frauds and Perjuries. 
 
 179. Hindson v. Kersey. 
 
 Sub-title II: Rules as to the Kind of Witness Required, or the 
 Corroboration of Certain Kinds of Witnesses. 
 I. Accomplice, Rape, Bastardy, Etc.: 
 
 180. Rex V. Atwood. 
 
 181. Joy, Treatise on Evidence of Accomplices. 
 
 182. Rex V. Farley. 
 
 183. Rex V. Reading. 
 
 184. Goodright v. Moss. 
 S. Confessions: 
 
 185. Canons of the Church. 
 
 186. Oughton, Ordo Judiciorum. 
 
 187. Bergen v. People. 
 
 188. Hale, Pleas of the Crown. 
 
 189. Regina v. Burton. 
 
 190. Commonwealth v-. Webster. 
 
 5. Eye-Witness of Crime or Marriage: 
 
 191. State V. Barrett. 
 
CONTENTS. XIH 
 
 192. Doe V. Fleming. 
 
 193. Breadalbane Case. 
 
 194. Morris v. Miller. 
 
 195. Birt V. Barlow. 
 
 196. Ham's Case. 
 
 197. Statutes. 
 
 Sub-title III: Rules Requiring or Allowing Verbal Complete- 
 ness. 
 
 198. Read v. Hide. 
 
 199. Sidney's Trial. 
 
 200. Starkie, Treatise on Evidence. 
 
 201. Commonwealth v. Keyes. 
 /. Compulsory Completeness: 
 
 a. Oral Utterances: 
 
 202. Eaton V. Rice. 
 
 203. Summons v. State. 
 
 204. Thomson v. Austen. 
 
 205. Parnell Commission's Proceedings. 
 h. Documents: 
 
 206. Eaton's Trial. 
 
 207. Tilton V. Beecher. 
 
 208. Perry v. Burton. 
 
 209. Vance v. Reardon. 
 2. Optional Completeness : 
 
 210. The Queen's Case. 
 
 211. Prince v. Samo. 
 
 212. Atherton v. Defreeze. 
 
 213. Dewey v. Hotchkiss. 
 
 214. Calvert v. Flower. 
 
 Sub-title IV: Rules for Authentication of Documents. 
 
 215. Horne Tooke's Trial. 
 
 216. Stamper v. Griffin. 
 
 217. Siegfried v. Levan. 
 
 218. Pearce v. Hooper. 
 
 219. Wigmore, Treatise on Evidence. 
 
 1. Authentication by Age: 
 
 220. Meath v. Winchester. 
 
 221. Middleton v. Mass. 
 
 2. Authentication by Contents: 
 
 222. Singleton v. Brenner. 
 
 223. Howley v. Whipple. 
 
 224. Obermann Brewing Co. v. Adams. 
 
 3. Authentication by Official Custody: 
 
 225. Adamthwaite v. Synge. 
 
XIV CONTENTS. 
 
 4. Authentication by Seal: 
 
 226. Jeaffreson, Book about Lawyers. 
 
 227. Gilbert, Treatise on Evidence. 
 
 228. Griswold v. Pitcairn. 
 
 229. Commonwealth v. Phillips. 
 
 230. Waldron v. Turpin. 
 
 231. Stout V. Slattery. 
 
 232. Den V. Vreelandt. 
 
 233. Wigmore, Treatise on Evidence. 
 
 TITLE II: PREFERENTIAL RULES. 
 
 234. Wigmore, Treatise on Evidence. 
 
 Sub-title I : Production of Documentary Originals. 
 I. The Rule: 
 
 235. Dr. Leyfield's Case. 
 
 236. Commonwealth v. Morrell. 
 
 237. Gathercole v. Miall. 
 
 238. Attorney-General v. Le Merchant. 
 
 239. Dwyer v. Collins. 
 
 240. United States v. Doebler. 
 
 241. Gilbert, Treatise on Evidence. 
 
 242. Doe dem. Patterson v. Winn. 
 
 243. Commonwealth v. Emery. 
 
 244. Statutes. 
 
 245. Rex V. Watson. 
 
 246. Nickerson v. Spindell. 
 
 247. Doe V. Harvey. 
 
 248. Moberly v. Lamb. 
 
 249. Tilton V. Beecher. 
 
 5. Exceptions to the Rule: 
 
 250. Cole V. Gibson. 
 
 251. Massey v. Bank. 
 
 252. Slatterie v. Poolie. 
 
 253. The Queen's Case. 
 
 254. Brougham, Speech on the Reform of the Law. 
 
 255. Statutes. 
 
 3. Rules of Preference between Secondary Modes of Evidencing 
 Contents: 
 
 256. Doe V. Ross. 
 
 257. Clemens v. Conrad. 
 
 258. State V. Lynde. 
 
 259. Winn V. Patterson. 
 
 Sub-title II: Preferred Witnesses. 
 I. Attesting Witness: 
 
 260. Thayer, Preliminary Treatise on Evidence. 
 
CONTENTS. XV 
 
 261. Common Law Practice Commission's Report. 
 
 262. Statutes. 
 
 263. Tarrant v. Ware. 
 
 264. Doe V. Hindson. 
 
 265. Adam v. Kerr. 
 
 266. Gelott V. Goodspeed. 
 
 267. Newsom v. Luster. 
 
 268. Statutes. 
 
 2.. Other Kinds of Witnesses: 
 
 269. United States v. Gibert. 
 
 270. Jeans v. Wheedon. 
 
 TITLE III: ANALYTIC RULES: THE HEARSAY RULE. 
 Sub-title I: Theory of the Hearsay Rule; Right of Cross-Ex- 
 
 AMINATIONS. 
 
 /. General Theory: 
 
 271-2. Wigmore, Treatise on Evidence. 
 
 273. Craig dem. Annesley v. Anglesea. 
 
 274. Coleman v. Southwick. 
 
 275. Hale, History of the Common Law. 
 
 276. Bentham, Rationale of Judicial Evidence. 
 
 277. Brown, The Forum. 
 
 278. Reed, Conduct of a Lawsuit. 
 279-280. Parnell Commission's Proceedings. 
 
 2. Requirement of Cross-Examination: 
 
 281. Buller, Trials at Nisi Prius. 
 
 282. Rex V. Eriswell. 
 
 283. Evans v. Rothschild. 
 
 284. Wright V. Tatham. 
 
 5. Requirement of Confrontation: 
 
 285. Constitution of the United States. 
 
 286. Howser v. Commonwealth. 
 
 287. United States v. Macomb. 
 
 288. Statutes. 
 
 289. Bogie V. Nolan. 
 
 Sub-title II: Exceptions to the Hearsay Rule. 
 
 290. Sugden v. St. Leonards. 
 
 1. Dying Declarations: 
 
 291. Woodcock's Case. 
 
 292. Wilson V. Boerem. 
 
 2. Statements of Facts against Interest: 
 
 293. Middleton v. Melton. 
 
 294. Smith V. Blakey. 
 
XVI CONTENTS. 
 
 S, Statements of Pacts of Family History (Pedigree) : 
 
 295. Vowles V. Young. 
 
 296. Rex V. Erith. 
 
 297. Johnson v. Lawson. 
 
 298. Shields v. Boucher. 
 
 299. Monkton v. Attorney-General. 
 
 4. Attestation of a Subscribing Witness: 
 
 300. Adam v. Kerr. 
 
 5. Regular Entries: 
 a. By Parties: 
 
 301-302. Statutes. 
 
 303. Eastman v. Moulton. 
 
 304. Smith V. Rentz. 
 
 305. Conklin v. Stamler. 
 
 306. Statutes. 
 
 h. By Third Persons: 
 
 307. Price V. Lord Torring^on. 
 
 308. Poole V. Dicas. 
 
 309. Smith V. Blakey. 
 
 310. Kennedy v. Doyle. 
 
 311. Fielder v. Collier. 
 
 6. Sundry Declarations by Deceased Persons: 
 
 312. Scoggin V. Dalrymple. 
 
 313. Carver v. Jackson. 
 
 314. Statutes. 
 
 7. Reputation : 
 
 a. Land Boundaries: 
 
 315. Regina v. Bedfordshire. 
 
 316. Harriman v. Brown. 
 
 b. General History: 
 
 317. Steyner v. Droitwich. 
 
 c. Marriage : 
 
 318. Breadalbane Case. 
 
 d. Character: 
 
 319. Bucklin v. State. 
 
 320. Pickens v. State. 
 
 321. Atlantic & Birmingham R. Co. v. Reynolds. 
 
 322. Foster v. Brooks. 
 
 8. Official Statements (Public Documents) : 
 
 323. Rex V. Aickles. 
 
 324. Stewart v. Allison. 
 a. Registers and Records: 
 
 325. Kennedy v. Doyle. 
 
 326. Gilbert, Treatise on Evidence. 
 
CONTENTS. XVii 
 
 327. Starkie, Treatise on Evidence. 
 
 328. Eady v. Shivey. 
 
 329. Statutes. 
 
 J. Reports and Returns: 
 
 330. Ellicott V. Pearl. 
 
 331. Jones V. Guano Co. 
 
 c. Certificates (including Certified Copies): 
 
 332. Omichund v. Barker. 
 
 333. Townsley v. Sumrall. 
 
 334. Kidd's Administrator v. Alexander's Administrator. 
 
 335. Statutes. 
 
 336. Buller, Trials at Nisi Prius. 
 
 337. United States v. Percheman. 
 
 338. Statutes. 
 
 339. Gilbert, Treatise on Evidence. 
 
 340. Church V. Hubbart. 
 
 341. Statutes. 
 
 342. Gilbert, Treatise on Evidence. 
 
 343. Statutes. 
 
 p. Scientific Books and Learned Treatises: 
 
 344. Spencer Cowper's Trial. 
 
 345. Ashworth v. Kittredge. 
 
 346. Pinney v. Cahill. 
 '70. Commercial Reports, etc.: 
 
 347. Sisson V. R. Co. 
 
 11. Statements of a Bodily or Mental Condition: 
 
 348. Bacon v. Charlton. 
 
 349. Barber v. Merriam. 
 
 350. Roche V. R. Co. 
 
 351. Mutual Life Insurance Co. v. Hillmon. 
 
 352. Doe dem. Shallcross v. Palmer. 
 
 353. Sugden v. Lord St. Leonards. 
 
 354. Boylan v. Meeker. 
 
 355. Rusling V. Rusling. 
 
 356. Mooney v. Olsen. 
 
 357. Waterman v. Whitney. 
 
 12, Spontaneous Exclamations: 
 
 358. Thompson v. Trevanion. 
 
 359. Insurance Co. v. Mosley. 
 
 Sub-title III: The Hearsay Rule not Applicable. 
 
 360. Milne v. Leisler. 
 
 361. Evans, Notes to Pothier on Obligations. 
 
 362. Bentham, Principles of Morals and Legislation. 
 
 363. Webb V. Richardson. 
 
Xviii CONTENTS. 
 
 364. Tilton V. Beecher. 
 
 365. Fabrigas v. Mostyn. 
 
 366. Parnell Commission's Proceeding. 
 
 367. State V. Fox. 
 
 Sub-title IV: The Hearsay Rule as Applied to Court Officers! 
 
 368. Allen V. Rostain. 
 
 369. Anderson's Trial. 
 
 370. Tilton V. Beecher. 
 
 371. People V. Wells. 
 
 TITLE IV: PRECAUTIONARY (OR PROPHYLACTIC) 
 
 RULES. 
 
 372. Wigmore, Treatise on Evidence. 
 
 Sub-title I: Oath. 
 
 373. Lady Lisle's Trial. 
 
 374. Omichund v. Barker. 
 
 375. Chitty, Treatise on Criminal Law. 
 
 376. Braddon's Trial. 
 
 377. Statutes. 
 
 Sub-title II: Perjury — Penalty. 
 
 378. Starkie, Treatise on Evidence. 
 
 Sub-title III : Publicity. 
 
 379. Cornish's Trial. 
 
 380. Blackstohe, Commentaries. 
 
 Sub-title IV: Separation of Witnesses. 
 
 381. History of Susanna. 
 
 382. Laughlin v. State. 
 
 Sub-title V: Discovery, or Notice of Evidence to the OppoNENr 
 Before Trial. 
 I. Criminal Cases: 
 
 383. Stephen, History of the Criminal Law. 
 
 384. Statutes. 
 S. Civil Cases: 
 
 a. Interrogation of Parties before Trial: 
 
 385. Wigram, Treatise on Discovery. 
 
 386. Combe v. London. 
 
 387. English Common Law Practice Commissioners' Report. 
 
 388. Statutes. 
 
 389. Daly, Essay on Preparation for Trial. 
 
 390. Re Strachan. 
 
 b. Discovery of Documents or Chattels before Trial: 
 
 391. Brougham, Speech on the Courts of Common Law. 
 
 392. Bolton V. Liverpool. 
 
CONTENTS. xix 
 
 393. Groenvelt v. Burrell. 
 
 394. Tidd, Treatise on Practice. 
 
 395. English Common Law Practice Commissioners' Report. 
 
 396. Statutes. 
 
 397. Reynolds v. Burgess Sulphite Fibre Co. 
 
 TITLE V: SIMPLIFICATIVE RULES. 
 
 398. Wigmore, Treatise on Evidence. 
 
 Sub-title I : Order of Introducing Evidence. 
 
 399. Rucker v. Eddings. 
 
 400. Rogers v. Brent. 
 
 401. Parnell Commission's Proceedings. 
 
 402. Lord Lovat's Trial. 
 
 403. Moody V. Rowell. 
 
 404. Philadelphia & Trenton R. Co. v. Stimpson. 
 
 405. New York Iron Mine v. Negaunee Bank. 
 
 Sub-title II; Sundry Rules to Avoid Confusion of Issues, Undue 
 Weight, Etc. 
 
 406. Eraser v. Jennison. 
 
 407. Howser v. Commonwealth. 
 
 408. Maitland v. Zanga. 
 
 409. Ross V. Demoss. 
 
 Sub-title III: Opinion Rule. 
 
 1. General Principle: 
 
 410. Starkie, Treatise on Evidence. 
 
 411. Lewis, Influence of Authority in Matters of Opinion. 
 
 412. Whately, Elements of Rhetoric. 
 
 413. Fenwick v. Bell. 
 
 414. Brown v. Commonwealth. 
 
 415. Taylor v. Monroe. 
 
 416. State v. Pike. 
 
 2. Application to SpeciHc Topics of Testimony: 
 
 417. Hardy v. Merrill. 
 
 418. Kempsey v. McGinniss. 
 
 419. Yost V. Conroy. 
 
 420. Penn Mutual Life Ins. Co. v. Mechanics' Savings Bank 
 
 & Trust Co. 
 
 421. Fenwick v. Bell. 
 
 422. Earl of Thanet's Trial. 
 
 423. Fiske V. Cowing. 
 
 424. Davison's Trial. 
 
 425. Regina v. Rowton. 
 
 426. Swift, Treatise on Evidence. 
 
XX ' CONTENTS. 
 
 427. Sidney's Trial. 
 
 428. Hale's Trial. 
 
 429. Commonwealth v. Smith. 
 
 430. Doe dem. Mudd v. Suckermore. 
 
 431. Doe dem. Parry v. Newton. 
 
 432. University of Illinois v. Spalding. 
 
 433. Statutes. 
 
 434. Wigfmore, Treatise on Evidence. 
 
 435. Hoag V. Wright. 
 5. Hypothetical Questions: 
 
 436. Kempsey v. McGinniss. 
 
 437. Bellefontaine & Indiana R. Co. v. Bailey. 
 
 438. First National Bank v. Wirebach's Executor. 
 
 PART III: RULES OF EXTRINSIC POLICY. 
 
 439. Wigmore, Treatise on Evidence. 
 
 TITLE I: RULES OF ABSOLUTE EXCLUSION. 
 
 440. Commonwealth v. Dana. 
 
 TITLE II: RULES OF CONDITIONAL EXCLUSION 
 
 (PRIVILEGE): 
 
 SuB-TiTLE I: The Testimonial Duty in General. 
 
 441. Countess of Shrewsbury's Trial. 
 
 442. Statutes. 
 
 443. Amey v. Long. 
 
 444. Chitty, Practice of the Law. 
 
 445. Braddon's Trial. 
 
 446. West V. State. 
 
 447. People V. Davis. 
 
 448. New York Practice Commissioner's Report 
 
 449. Statutes. 
 
 Sub-title II: Privileged Topics. 
 
 450. Doe dem. Egremont v. Date. 
 I. Sundry Privileges: 
 
 451. Walker's Trial. 
 
 452. Doe dem. Egremont v. Date. 
 
 453. Dobson V. Graham. 
 
 454. Free v. Buckingham. 
 
 455. State V. Hilmantel. 
 
 456. Cook's Trial. 
 
 457. English Common Law Practice Commission's Report. 
 
 458. Lord Melville's Case. 
 
CONTENTS. XXI 
 
 2. Civil Party's Privilege. 
 
 459. Blackstone, Commentaries. 
 
 460. Storey v. Lord Lennox. 
 
 461. Kynaston v. East India Co. 
 
 462. Union Pacific R. Co. v. Botsford. 
 
 463. Wanek v. Winona. 
 J. Marital Privilege: 
 
 464. Coke upon Littleton. 
 
 465. Knowles v. People. 
 
 466. English Common Law Practice Commission's Report. 
 
 467. Rex V. Cliviger. 
 
 468. Rex V. All Saints. 
 
 469. Caldwell v. Stuart. 
 
 470. Soule's Case. 
 
 (^. Privilege against Self -Crimination: 
 
 471. Penn's & Mead's Trial. 
 
 472. Constitution of the United States. 
 
 473. Stephen's History of the Criminal Law. 
 0. Scope of the Privilege: 
 
 474. Paxton V. Douglas. 
 
 475. Aaron Burr's Trial. 
 
 476. Ward V. State. 
 
 477. Boyd V. United States. 
 
 478. State V. Flynn. 
 
 479. United States v. Cross. 
 
 480. Counselman v. Hitchcock. 
 
 481. State V. Quarles. 
 
 482. Brown v. Walker. 
 
 b. Claim and Waiver of the Privilege: 
 
 483. Bembridge's Trial. 
 
 484. Cloyes V. Thayer. 
 
 485. Regina v. Garbett. 
 
 486. Aaron Burr's Trial. 
 
 487. State V. Thaden. 
 
 488. People V. Tyler. 
 
 489. State V. Cleaves. 
 
 490. Statutes. 
 
 491. Commonwealth v. Webster. 
 
 492. Foster v. People. 
 
 493. State V. Wentworth. 
 
 Sub-title HI; Privileged Communications. 
 
 494. Duchess of Kingston's Case. 
 
 495. Dublin Election Case. 
 ■7. Attorney and Client: 
 
 496. Anderson v. Bank. 
 
XXU CONTENTS. 
 
 497. Statutes. 
 
 498. Craig dem. Annesley v. Anglesea. 
 
 499. Greenough v. Gaskell. 
 
 500. Hatton V. Robinson. 
 
 501. Barnes v. Harris. 
 
 502. Thompson v. Kilborne. 
 
 503. Coveney v. Tannehill. 
 
 504. Mitchell's Case. 
 
 505. Skinner v. Great Northern R. Co. 
 
 506. Coleman's Will. 
 
 507. Layman's Will. 
 2. Husband and Wife: 
 
 509. Mercer v. State. 
 
 510. Clements v. Marston. 
 J. Jurors: 
 
 511. Phillips V. Marblehead. 
 
 512. Earl of Shaftesbury's Trial. 
 
 513. Commonwealth v. Mead. 
 
 514. Statutes. 
 
 4. Official Secrets; Government and Informer: 
 
 515. Hardy's Trial. 
 
 516. Delaney v. Philadelphia. 
 
 517. Burr's Trial. 
 
 518. Cooley, Treatise on Torts. 
 
 519. Beatson v. Skene. 
 
 5. Physician and Patient : 
 
 520. Duchess of Kingston's Case. 
 
 521. New York Practice Commissioners' Report. 
 
 522. Statutes. 
 
 523. Gartside v. Insurance Co. 
 
 6. Priest and Penitent: 
 
 524. Regina v. Hay. 
 
 525. Statutes. 
 
 PART IV: PAROL EVIDENCE RULE. 
 
 (CONSTITUTION OF LEGAL ACTS). 
 
 526. Wigmore, Treatise on Evidence. 
 
 Sub-title I. Creation of Legal Acts. 
 J. Subject, Terms, Delivery: 
 
 527. Earle v. Rice. 
 
 528. Thoroughgood's Case. 
 
 529. Xenos V. Wickham. 
 
 530. Hudson V. Revett. 
 
CONTENTS. XXIU 
 
 531. Price v. Hudson. 
 
 532. Burke v. Dulaney. 
 533- Pyni ^- Campbell. 
 
 534. Stanley v. White. 
 2. Intent and Mistake: 
 
 535. Brett V. Rigdon. 
 
 536. Austin, Jurisprudence. 
 
 537. Holland, Elements of Jurisprudence. 
 
 538. Cornish v. Abington. 
 
 539. Foster v. Mackinnon. 
 
 540. Trambly v. Ricard. 
 
 541. Essex V. Day. 
 
 542. Park Brothers Co. v. Blodgett & Clapp Co. 
 
 543. Garrard v. Frankel. 
 
 544. Barker v. Sterne. 
 
 545. Baxendale v. Bennfett. 
 
 546. Hubbard v. Greeley. 
 
 547. Guardhouse v. Blackburn. 
 J. Voidability : 
 
 a. Error: 
 
 548. State V. Cass. 
 
 549. Redgrave v. Hurd. 
 
 b. Duress: 
 
 550. Fairbanks v. Snow. 
 
 551. Wigraore, Treatise on Evidence. 
 
 Sub-title H: Integration of Legal Acts (varying the terms of 
 AN instrument) : 
 
 552. Wigmore, Treatise on Evidence. 
 I. Private Acts: 
 
 a. General Principle: 
 
 553. Lilly's Practical Register. 
 
 554. Webb V. Plummet. 
 
 555. Brown v. Byrne. 
 
 556. Bretto V. Levine. 
 
 557. Potter V. Easton. 
 
 b. Application to Particular Kinds of Transactions:. 
 
 558. Ramsdell v. Clark. 
 
 559. Baum V. Lynn. 
 
 560. Chapin v. Dobson. 
 
 561. Barbre v. Goodale. 
 
 562. Foster v. Jolly. 
 
 563. Thompson v. Clubley. 
 
 564. Goss V. Lord Nugent. 
 
 565. Ashley v. Ashley. 
 
XXIV CONTENTS. 
 
 2. Judicial Acts: 
 
 a. Record of a Judgment: 
 
 567. Sayles v. Briggs. 
 
 568. Pruden v. Alden. 
 
 b. Verdict of a Jury: 
 
 569. Robbins v. Windover. 
 
 570. Haak v. Breidenbach. 
 
 571. Vaise v. Delaval. 
 
 572. Wright V. Telegraph Co, 
 
 573. Rex V. Woodfall. 
 
 574. Capen v. Stoughton. 
 
 575. Low's Case. 
 '3. Corporate Acts: 
 
 576. United States Bank v. Dandridge. 
 
 Sub-title III : Formalities of Legal Acts. 
 
 577. Statute of Frauds and Perjuries. 
 
 578. Leroux v. Brown. 
 
 579. Wigmore, Treatise on Evidence. 
 
 Sub-title IV: Interpretation of Legal Acts. 
 
 580. Wigmore, Treatise on Evidence. 
 
 1. Standards of Interpretation: 
 
 581. Throckmerton v. Tracy. 
 
 582. Bentham, Rationale of Judicial Evidence, 
 
 583. Attorney-General v. Shore. 
 
 584. Re Jodrell. 
 
 585. Tilton V. American Bible Society. 
 
 586. Myers v. Sari. 
 
 587. Violette v. Rice. 
 
 588. Walls V. Bailey. 
 
 589. Stoops V. Smith. 
 
 590. Rickerson v. Ins. Co. 
 
 2. Sources of Interpretation: 
 
 591. Wigram, Interpretation of Wills. 
 
 592. Miller v. Travers. 
 
 593. Lord Cheney's Case. 
 
 594. Lord Bacon's Maxims. 
 
 595. Doe dem. Gord v. Needs. 
 
 596. Miller v. Travers. 
 
 597. Doe V. Hiscocks. 
 
 598. Willard v. Darrah. 
 
 599. Wiseman v. Green. 
 
 600. Winkley v. Kaime. 
 
 601. Kurtz V. Hibner. 
 
 602. Justices Redfield's and Caton's Comments on Kurtz 
 
 Hibner. 
 
CONTENTS. XXV 
 
 BOOK II: BY WHOM EVIDENCE MUST 
 BE PRESENTED. 
 
 (BURDEN OF PROOF; PRESUMPTIONS). 
 604-605. Wigmore, Treatise on Evidence. 
 
 TITLE I: GENERAL PRINCIPLES FOR THE TWO KINDS 
 OF BURDEN OF PROOF. 
 
 606. Barry v. Butlin. 
 
 607. Hingeston v. Kelly. 
 
 608. Abrath v. Northeastern R. Co. 
 
 609. Powers V. Russell. 
 
 610. Carver v. Carver. 
 
 611. Rex V. Almon. 
 
 612. Alabama Great Southern R. Co. v. Taylor. 
 
 613. Menominie S. & D. Co. v. Milwaukee & N. R. Co. 
 
 614. Ewing V. Goode. 
 
 615. Barabasz v. Kabat. 
 
 616. Joliet, A. & N. R. Co. v. Velie. 
 
 617. Commonwealth v. Webster. 
 
 618. Buel V. State. 
 
 619. Ellis V. Buzzell. 
 
 TITLE II: PRESUMPTIONS IN SPEaFIC ISSUES. 
 
 620. Sutton V. Sadler. 
 
 621. Davis V. United States. 
 
 622. Schmisseur v. Beatrie. 
 
 623. Gulf, Colorado & Sante Fe R. Co. v. Shieder. 
 
 624. Scott V. London & St. Katharine Docks Co. 
 
 625. State V. Brady. 
 
 626. Davie v. Briggs. 
 
 BOOK III: TO WHOM EVIDENCE MUST 
 BE PRESENTED. 
 
 (JUDGE AND JURY; LAW AND FACT). 
 
 627. Bartlett v. Smith. 
 
 628. Commonwealth v. Robinson. 
 
 629. Bridges v. North London R. Co. 
 
 630. State V. Moses. 
 
 631. Commonwealth v. Porter. 
 
 632. Hutchison v. Bowker. 
 
 633. Commonwealth v. Anthes. 
 
XXVl CONTENTS. 
 
 BOOK IV: OF WHAT PROPOSITIONS NO 
 EVIDENCE NEED BE PRESENTED. 
 
 TITLE I: JUDICIAL NOTICE. 
 
 634. Anonymous. 
 
 635. Fox V. State. 
 
 636. Attorney-General v. Cast-Plate Glass Co. 
 
 637. Rex V. Rosser. 
 
 638. Doyle V. Bradford. 
 
 639. Hooper v. Moore. 
 
 640. McCoy V. World's Columbian Exposition Co. 
 
 641. Kilpatrick v. Commonwealth. 
 
 TITLE II: JUDICIAL ADMISSIONS. 
 
 642. Langley v. Oxford. 
 
 643. Prestwood v. Watson. 
 
 644. Statutes. 
 
 645. Adkins v. Commonwealth. 
 
 646. Statutes. 
 
 647. Carver v. Carver. 
 
 List of Cases Quoted. 
 List of Statutes Quoted. 
 Topical Index. 
 
ABBREVIATIONS. 
 
 Citations of Reports are made by the usual abbreviations. 
 
 The abbreviation "W.," followed by a figure, refers to the sections 
 of the Compiler's Treatise on Evidence, published in 1904-5, by the 
 same publishers. 
 
CASES ON EVIDENCE. 
 
 INTRODUCTORY, 
 
 Jeremy Bentham, Rationale of Judicial Evidence (1827), b. IX, pt. 
 VI, c. V (Bowring's ed. vol. VII, p. 560) : "The question, on what facts 
 the decision turns, is a question, not of evidence, but of the sub- 
 * stantive branch of the law: it respects the prohandum, not the 
 
 prohans: it does not belong to the inquiry, by what sort of evidence 
 the facts of the case may be proved; it belongs to the inquiry, what 
 are the facts of which the law has determined that proof shall be re- 
 quired, in order to establish the plaintiff's claim. This circumstance, 
 obvious as it is, might easily be overlooked by one who has studied 
 the subject only in the compilations of the English institutional 
 writers; who, not content with directing that the evidence be confined 
 to the points in issue, have farther proceeded, under the guise of lay- 
 ing down rules of evidence, to declare, on each occasion, what the 
 points in issue are. One whole volume out of two which compose Mr. 
 Phillipps's treatise on the Law of Evidence, — with a corresponding por- 
 tion of the other treatises extant concerning that branch of the law, — 
 is occupied in laying down rules concerning the sort of evidence which 
 should be required in different sorts of actions or suits at law. But 
 why should different forms of action require different sorts of evi- 
 dence? The securities by which the trustworthiness of evidence is 
 provided for, and the rules by which its probative force is estimated, 
 if for every sort of cause they are what they ought to be, must be the 
 same for one sort of cause as for another. The difference is not in 
 the nature of the proof; it is in the nature of the facts required to be 
 proved. There is no difference as between different forms of action, in 
 reason, or even in English law, in respect of the rules relating to the 
 competency of witnesses; nor, in general, to the admissibility or the 
 proof of written documents; nor in respect of any other of the general 
 rules of evidence. What Mr. Phillipps (I mention him only as a repre- 
 sentative of the rest) professes, under each of the different forms of 
 action, to tell you, is, what facts, in order to support an action in that 
 form, it is necessary that you should prove . . . But, to enumerate the 
 facts which confer or take away rights, is the main business of what 
 is called the civil branch of the law; to enumerate the acts by which 
 rights are violated — in other words, to define offenses — is the main busi- 
 ness of the penal branch. What, therefore, the lawyers give us, under 
 the appellation 'law of evidence,' is really, in a great part of it, civil 
 and penal law. . . . Under the title Burglary, Mr. Starkie begins by 
 saying, that on an indictment for burglary, it is essential to prove, ist, 
 
 1 
 
2 INTRODUCTORY. No. 1. 
 
 A felonious breaking and entering; 2dly, of the dwelling-house; 3dly, 
 in the night time; 4thly, with intent to commit a felony. He then pro- 
 ceeds to inform us, that there must be evidence of an actual or con- 
 structive breaking; for if the entry was obtained through an open door 
 or window, it is no burglary . . . Who does not see that all this is an 
 attempt — a lame one, it must be confessed (which is not the fault of the 
 compiler), but still an attempt — to supply that definition of the offense 
 of burglary which the substantive law has failed to afford?" 
 
 Mr. Justice Oliver Wendell Holmes, The Common Law (1881), 
 120 : "The principles of substantive law which have been established 
 by the courts are believed to have been somewhat obscured by 
 having presented themselves oftenest in the form of rulings upon 
 the sufficiency of evidence. When a judge rules that there is no evi- 
 dence of negligence, he does something more than is embraced in an 
 ordinary ruling that there is no evidence of a fact. He rules that the 
 acts or omissions proved or in question do not constitute a ground of 
 legal liability, and in this way the law is gradually enriching itself 
 from daily life, as it should. Thus, in Crafton v. Metropolitan Rail- 
 way Co.,' the plaintiff slipped on the defendant's stairs and was 
 severely hurt. The cause of his slipping was that the brass nosing of 
 the stairs had been worn smooth by travel over it, and a builder testi- 
 fied that in his opinion the staircase was unsafe by reason of this 
 circumstance and the absence of a handrail. There was nothing to 
 contradict this except that great numbers of persons had passed over 
 the stairs and that no accident had happened there, and the plaintiff 
 had a verdict. The Court set the verdict aside, and ordered a nonsuit. 
 The ruling was in form that there was no evidence of negligence to go 
 to the jury; but this was obviously equivalent to saying, and it did in 
 fact mean, that the railroad company had done all that it was bound 
 to do in maintaining such a staircase as was proved by the plaintiff. 
 A hundred other equally concrete instances will be found in the text- 
 books. On the other hand, if the Court should rule that certain acts 
 or omissions coupled with damage were conclusive evidence of negli- 
 gence unless explained, it would, in substance and in truth, rule that 
 such acts or omissions were a ground of liability or prevented a re- 
 covery, as the case might be. Thus, it is said to be actionable negli- 
 gence to let a house for a dwelling knowing it to be so infected with 
 small-pox as to be dangerous to health, and concealing the knowledge." 
 
 Scope of the Law of Evidence:^ — "The question, therefore, 'Of 
 
 what Propositions may Evidence be offered?' is not answered by the 
 
 law of evidence, except in a subordinate way. The answer to 
 
 it is made in four parts. Evidence may be offered of such 
 
 Propositions of fact as 
 
 1— L. R. I C. P. 300. 2— Quoted from W., §5 2, 3. 
 
No. 3. INTRODUCTORY. 3 
 
 "(a) Are material by the substantive law to any right or duty, 
 claim or defence; 
 
 "(b) Are issuable in the case at bar by the terms of the pleadings 
 under the rules of pleading; 
 
 "(c) Are effective to relieve a party from the establishment of one 
 of the preceding propositions; 
 
 "(d) Are admissible by the law of evidence as evidentiary facts, 
 and thus may become in turn Propositions to be proved. 
 
 "The first and the second of these classes clearly do not involve 
 the law of evidence. The third class is concerned with judicial ad- 
 missions and their congeners; such are really equivalent to a pleading, 
 because they formally waive proof; they are therefore no part of the 
 law of evidence except for the necessity of distinguishing them from 
 other things miscalled admissions. The fourth class alone concerns 
 intrinsically the law of evidence. It rests on the self-evident corollary 
 that, since any Evidentiary Fact may in its turn become a Proposition, 
 evidence to prove it may then be offered. Thus the law of evidence 
 is legitimately concerned solely with the relation between Evidentiary 
 Facts and Propositions; how a given Proposition comes to be eligible 
 for proof is not a part of the law of evidence. 
 
 "The Propositions of which evidence may be offered being thus 
 given by the rules of substantive law and of pleading, and the law of 
 evidence concerning itself solely with the relation between Evidentiary 
 Facts and such Propositions, the settlement of that relation involves 
 obviously four distinct questions: 
 
 "I. What Facts may be presented as Evidence? This is the ques- 
 tion of Admissibility. 
 
 "II. By whom must Evidence be presented? This is the question 
 of Burden of Proof, and, incidentally, of Presumptions. 
 
 "III. To whom must Evidence be presented? This involves the 
 relation of function between Judge and Jury, as respectively deciding 
 upon Law and Fact. 
 
 "IV. Of what Propositions in issue need no Evidence be presented? 
 This includes the topics ordinarily termed Judicial Notice and Judicial 
 Admissions. The former (as will be seen) is in essence nothing more 
 than a rule of burden of proof. The latter (as already noted) is in 
 effect equivalent to a rule of pleading. 
 
 "All of the last three topics verge towards the border line of what 
 is in strictness the law of evidence. They involve and rest upon cer- 
 tain larger aspects of procedure which are independent of the evidential 
 material. The question who has the burden of proof, for example, is 
 of a piece with the questions who shall open and close the argument 
 and whether certain allegations require an affirmative or negative 
 pleading. They form a part of a treatise on evidence merely because 
 their material is chiefly evidential material and because their problems 
 have constantly to be discriminated from the strictly evidential prob- 
 lems. 
 
4 INTRODUCTORY. No. 4. 
 
 "There are, indeed, still other topics which, because their material 
 is partly or chiefly evidential, might by a broad treatment be included 
 in a system of evidence. For example, the rules of procedure in prepa- 
 ration for trial may raise the question vsrhether an expected witness 
 may be detained or bonded before trial begun, or whether testimony 
 can be preserved by deposition taken before trial, or whether docu- 
 ments needed for evidence can be prevented from being carried out of 
 the jurisdiction. So far as any of these rules of procedure affect the 
 subsequent admissibility "of the evidence, they plainly belong here; but 
 as rules of procedure — i. e. telling whether a thing can or cannot be 
 done before trial — they are in strictness not rules of evidence. Again, 
 the deliberations of the jury are governed by certain rules, prescribing 
 the place of retirement, the behavior during retirement, the form of 
 the verdict, and the like. Among these rules may be some which 
 prescribe what effect of persuasion is to be attached to different sorts 
 of evidence, and how the total strength or sufficiency of the jurors' 
 persuasion is to be measured. All these rules belong together, and it is 
 only incidentally that some of them concern evidential material. Still 
 again, a verdict and judgment may on appeal be set aside for various 
 errors and defects; some of these errors may involve the circumstance 
 that improper evidence has been considered. But only as. a part of 
 the general system of appeal and revision can such rules be satisfac- 
 torily dealt with. They are a part of that system and not of the system 
 of evidence." 
 
 LORD MELVILLE'S TRIAL (1806). 
 
 2g How. St. Tr. 746. 
 
 Prosecution for the misapplication of public funds as Treasurer of 
 the Navy. Certificates were offered, signed by the paymaster, the de- 
 fendant's subordinate, acknowledging the receipt of £45,000 from 
 * the Exchequer; these were objected to as not competent in a 
 
 criminal case to affect the defendant with responsibility. Mr. Serjeant 
 Best, for their reception : "We must first prove that the money has been 
 received, and after we have satisfactorily proved that, then comes the 
 evidence to prove what has been its application after it has been re- 
 ceived. . . . The learned counsel have endeavored to distinguish between 
 civil and criminal cases. . . . There is a considerable distinction between 
 civil and criminal cases, but that distinction consists rather in the num- 
 ber of fasts to be proved than in the manner of proving any of them.. It 
 is necessary that more facts should be proved, for the purpose of show- 
 ing that a man has money in his possession or has had money come 
 into his possession, than to make him civilly responsible; but though 
 more facts should be proved in one case than is necessary to be proved 
 in the other, each particular fact is to be proved by precisely the 
 same evidence." Mr. Plumer, on the opposite side: "I desire it may 
 be distinctly understood that I do not dispute that the rules of evi- 
 
No. 6. INTRODUCTORY. 5 
 
 dence are the same in both. . . . What is the distinction, then? ... It 
 is not that the rules of evidence are at all altered, but that when you 
 are looking at the individual who stands in a civil relation, and are 
 pursuing it with that view, there is an identity of persons between the 
 agent and principal, and all that one has done or said is done or said 
 by the other; . ^. [but otherwise for criminal responsibility]. We are 
 not contending that the rules of law are different in the two cases, 
 but that the ultimate result of the inquiry makes that which is com- 
 petent, legal, and proper in one case not so in the other." 
 
 Lord Chancellor Erskine took the view that the certificate was ad- 
 missible to show the authorized reception of the monies by the agent, 
 but not that the money actually reached the defendant; and proceeded: 
 "This first step in the proof must advance by evidence applicable alike 
 to civil as to criminal cases ; for a fact must be established by the 
 same evidence, whether it is to be followed by a criminal or a civil 
 consequence. But it is a totally different question, in the consideration 
 of criminal as distinguished from civil justice, how the noble person 
 now on trial may be affected by the fact when so established. The 
 receipt by the paymaster would in itself involve him civilly, but could 
 by no possibility convict him of a crime."^ 
 
 United States Revised Statutes 1878, § ^3i (repeating St. 1789, 
 c. 20, s. 34) : "The laws of the several States, except where the Con- 
 stitution, treaties, or statutes of the United States otherwise re- 
 " quire or provide, shall be regarded as rules of decision in trials 
 
 at common law, in the Courts of the United States, in cases where they 
 apply." Ibid. § 858 (combining statutes of 1862, 1864, and 1865) ; 
 after enacting certain provisions as to qualifications of witnesses, it 
 continues : "In all other respects the laws of the State in which the 
 trial is held shall be the rules of decision as to the competency of wit- 
 nesses in the courts of the United States in trials at common law, and 
 in equity and admiralty."* 
 
 General Survey of the Historical Development of the Rules 
 OF Evidence.' "It is worth while to notice here summarily the his- 
 torical development of the general system of evidence in its 
 " main features, and the relative chronology of the different rules. 
 
 Some notion can thus be obtained of the influence of certain external 
 
 3 — C, p. Cooper, Notes to Reports of admissible at common law, it must not be 
 
 Lord Cottenham's Cases in Chancery (cvrea understood that such evidence was abso- 
 
 1846), I, 509: "Conclusions drawn by the lutely rejected or was held entirely inad- 
 
 author from the various authorities in the missible, but only that it was laid aside, 
 
 books: Conclusion i. That what is evi- that it was put out of consideration, as 
 
 dence in a court of law is evidence in a regarded any decree or order binding the 
 
 court of equity, and that evidence which interest of the party against whom it was 
 
 is admissible in -<t court of law is admissible adduced." 
 
 in a court of equity. Conclusion z. That Compare the authorities cited in W., 
 
 when it is said in some of the cases that § 4. 
 
 the Court rejected evidence or held evi- 4 — Compare the authorities cited in W., 
 
 dence to be inadmissible which would have § 6. 
 
 been received or would have been held 5 — Quoted from W., § 8. 
 
6 INTRODUCTORY. No. 6, 
 
 circumstances on the rules at large, and of some of the individual prin- 
 ciples upon the others. 
 
 "The marked divisions of chronology, for our \aw of evidence, may 
 be said to be seven, — from primitive times to 1200 a. d., thence to 1500, 
 thence to 1700, to 1790, to 1830, to i860, and to the present time: 
 
 " (i) A. D. 700-1200. Up to the period of the 1200s, the history of 
 the rules of evidence, in the modern sense, is like the chapter upon 
 ophidians in Erin; for there were none. Under the primitive practices 
 of trial by ordeal, by battle, and by compurgation, the proof is accom- 
 plished by a judicium Dei, and there is no room for our modern notion 
 of persuasion of the tribunal by the credibility of the vifitnesses ;^ for 
 the tribunal merely verified the observance of the due formalities, and 
 did not conceive of these as directly addressed to their own reasoning 
 powers. Nevertheless, a few marks, indelibly made by these earlier 
 usages, were left for a long time afterwards in our law. The sum- 
 moning of attesting witnesses to prove a document, the quantitative 
 effect of an oath, the conclusiveness of a seal in fixing the terms of a 
 documentary transaction, the necessary production of the original of a 
 document, — these rules all trace a continuous existence back to this 
 earliest time, although they later took on different forms and survived 
 for reasons not at all connected with their primitive theories. 
 
 "(2) A. D. 1200-1500. With the full advent of the jury, in the 
 1200S, the general surroundings of the modern system are prepared; 
 for now the tribunal is to determine out of its own conscious persua- 
 sion of the facts, and not merely by supervising external tests. The 
 change is of course gradual; and trial by jury is as yet only one of 
 several competing methods ; but at least a system for the process of 
 persuasion becomes possible. In this period, no new specific rules 
 seem to have sprung up. The practice for attesting witnesses, oaths 
 and documentary originals is developed. The rule for the conclusive- 
 ness of a sealed writing is definitely established. But during these 
 three centuries the general process of pleading and procedure is only 
 gradually differentiated from that of proof, — chiefly because the jurors 
 are as yet relied upon to furnish in themselves both knowledge and 
 decision; for they are not commonly caused to be informed by wit- 
 nesses, in the modern sense. 
 
 "(3) A. D. 1500-1700. By the isoos, the constant employment of 
 witnesses, as the jury's chief source of information, brings about a 
 radical change. Here enter, very directly, the possibilities of our mod- 
 ern system. With all the emphasis gradually cast upon the witnesses^ 
 their words and their documents, the whole question of admissibility 
 arises. One first great consequence is the struggle between the numer- 
 ical or quantitative system, which characterized the canon law and 
 still dominated all other methods of proof, and the unfettered system- 
 
 6— This is indeed elaborately, denied by prior students have assumed the contrary. 
 Declareuil, in Nouvelle revue hist, du droit It is no doubt difficult to replace ourselvesi 
 fr. et etr. 1898, XXII, 220 ff.; but all in the primitive mental attitude. 
 
No. 6. INTRODUCTORY. 7 
 
 less jury trial; and it was not for two centuries that the numerical 
 system was finally repulsed. Another cardinal question now necessarily 
 faced was that of the competency of witnesses; and by the end of the 
 15003 the foundations were laid for all the rules of disqualifications 
 which prevailed thenceforward for more than two centuries, and in 
 part still remain. At the same time, and chiefly from a simple failure 
 to differentiate, most of the rules of privilege and privileged communi- 
 cation were thereby brought into existence, at least in embryo. The 
 rule for attorneys, which alone stood upon its own ground, also be- 
 longs here, though its reasons were newly conceived after the lapse 
 of a century. A third great principle, the right to have compulsory 
 attendance of witnesses, marks the very beginning of this period. 
 Under the primitive notions, this all rested upon the voluntary action 
 of one's partisans; the calling of compurgators and documentary at- 
 testors, under the older methods of trial, was in effect a matter of 
 contract. But as soon as the chief reliance came to be the witnesses 
 to the jurors, and the latter ceased to act on their own knowledge, the 
 necessity for the provision of such information, compulsory if not 
 otherwise, became immediately obvious. The idea progressed slowly; 
 it was enforced first for the Crown, next for civil parties; and not 
 until the next period was it conceded to accused persons. Thus was 
 laid down indirectly the general principle that there is no privilege to 
 refuse to be a witness ; to which the other rules, above mentioned, subse- 
 quently became contrasted as exceptions. A fourth important principle, 
 wholly independent in origin, here also arose and became fixed by the 
 end of this period, — the privilege against self-crimination. The crea- 
 ture, under another form, of the canon law, in which it had a long 
 history of its own, it was transferred, under stress of political tur- 
 moil, into the common law, and thus, by a singular contrast, came to 
 be a most distinctive feature of our trial system. About the same 
 period — the end of the 1600s — an equally distinctive feature, the rule 
 against using an accused's character, became settled. Finally, the 
 'parol evidence' rule enlarged its scope, and came to include all writ- 
 ings and not merely sealed documents; this development, and the 
 enactment of the statute of frauds and perjuries, represent a special 
 phase of thought in the end of thij period. It ends, however, rather 
 with the Restoration of 1660 than with the Revolution of 1688, or the 
 last years of the century; for the notable feature of it is that the re- 
 generating results of the struggle against the arbitrary methods of 
 James I and Charles I began to be felt as early as the return of 
 Charles II. The mark of the new period is seen at the Restoration. 
 Justice, on all hands, then begins to mend. Crudities which Matthew 
 Hale permitted, under the Commonwealth, Scroggs put aside, under 
 James II. The privilege against self-crimination, the rule for two 
 witnesses in treason, and the character rule — ^three landmarks of our 
 law of evidence — find their first full recognition in the last days of 
 the Stuarts. 
 
8 INTRODUCTORY. No. 6. 
 
 "(4) A. D. lyoo-ifQO. Two circumstances now contributed inde- 
 pendently to a further development of the law on two opposite sides, 
 its philosophy and its practical efficiency. On the one hand, the final 
 establishment of the right of cross-examination by counsel, at the 
 beginning of the 1700s, gave to our law of evidence the distinction of 
 possessing the most efficacious expedient ever invented for the extrac- 
 tion of truth (although, to be sure, like torture, — that great instru- 
 ment of the continental system, — it is almost equally powerful for the 
 creation of false impressions). A notable consequence was that by the 
 multiplication of oral interrogation at trials the rules of evidence were 
 now developed in detail upon such topics as naturally came thus into 
 new prominence. All through the 1700s this expansion proceeded, 
 though slowly. On the other hand, the already existing material 
 began now to be treated in doctrinal form. The first treatise on the 
 law of evidence was that of Chief Baron Gilbert, not published till 
 after his death in 1726. About the same time the abridgments of 
 Bacon and of Comyns gave many pages to the title of Evidence;' but 
 no other treatise appeared for a quarter of a century, when the notes 
 of Mr. J. Bathurst (later Lord Chancellor) were printed, under the 
 significant title of the 'Theory of Evidence.' But this propounding 
 of a system was as yet chiefly the natural culmination of the prior 
 century's work, and was independent of the expansion of practice now 
 going on. In Gilbert's book, for example, even in the fifth edition of 
 1788, there are in all, out of the three hundred pages, less than five 
 concerned with the new topics brought up by the practice of cross- 
 examination ; in Bathurst's treatise (by this time embodied in his 
 nephew Buller's 'Trials at Nisi Prius') the number is hardly more; 
 Blackstone's Commentaries, in 1768, otherwise so full, are here equally 
 barren. The most notable result of these disquisitions, on the the- 
 oretical side, was the establishment of the 'best evidence' doctrine, 
 which dominated the law for nearly a century later. But this very 
 doctrine tended to preserve a general consciousness of the supposed 
 simplicity and narrowness of compass of the law of evidence. As late 
 as the very end of the century Mr. Burke could argue down the rules 
 of evidence, when attempted to be enforced upon the House of Lords 
 at Warren Hastings' trial, and ridicule them as petty and inconsider- 
 able." But, none the less, the practice had materially expanded during 
 his lifetime. In this period, besides the rules for impeachment and 
 corroboration of witnesses (which were due chiefly to the development 
 of cross-examination), are to be reckoned also the origins of the rules 
 for confessions, for leading questions, and for the order of testimony. 
 The various principles affecting documents — such as the authorization 
 
 8 — Hawkins, in 171 6, and Hale, in i58o, the law of Evidence, but very general, 
 
 in their treatises on the criminal law, had very abstract, and comprised in so small 
 
 had short chapters on evidence at these a compass that a parrot he had known 
 
 earlier dates. might get them by rote in one half-hour 
 
 9— "As to rules of law and evidence, he and repeat them in five minutes" (1794, 
 
 did not know what they meant; ... it Hastings' Trial, Lords' Journal, Feb. 23). 
 was true, something had been written on 
 
No. 6. INTRODUCTORY. 9 
 
 of certified (or office) copies and the conditions dispensing from the 
 production of originals — now also received their general and final shape. 
 
 "(5) A. D. 1790-1830. The full spring-tide of the system had now- 
 arrived. In the ensuing generation the established principles began 
 to be developed into rules and precedents of minutiae relatively innu- 
 merable to what had gone before. In the Nisi Prius reports of Peake, 
 Espinasse, and Campbell, centering around the quarter-century from 
 1790 to 1815, there are probably more rulings upon evidence than in 
 all the prior reports of two centuries. In this development the dom- 
 inant influence is plain; it was the increase of printed reports of Nisi 
 Prius rulings.^" This was at first the cause, and afterwards the self- 
 multiplying effect, of the detailed development of the rules. Hitherto, 
 upon countless details, the practice had varied greatly on the different 
 circuits; moreover, it had rested largely in the memory of the experi- 
 enced leaders of the trial bar and in the momentary discretion of the 
 judges. In both respects it therefore lacked fixity, and was not amen- 
 able to tangible authority. These qualities it now rapidly gained. As 
 soon as Nisi Prius reports multiplied and became available to all, the 
 circuits must be reconciled, the rulings once made and recorded must 
 be followed, and these precedents must be open to the entire profession 
 to be invoked. There was, so to speak, a sudden precipitation of all 
 that had hitherto been suspended in solution. This effect began imme- 
 diately to be assisted and emphasized by the appearance of new treat- 
 ises, summing up the recent acquisitions of precedent and practice. 
 In nearly the same year, Peake, for England (1801), and MacNally, 
 for Ireland (1802), printed small volumes whose contents, as com- 
 pared with those of Gilbert and Duller, seem to represent almost a 
 different system, so novel were their topics. In 1806, Evans' Notes 
 to Pothier on Obligations was made the vehicle of the first reasoned 
 analysis of the rules. In this respect it was epoch-making; and its 
 author in a later time once quietly complained that its pages were 
 'more often quoted than acknowledged.' The room for new treatises 
 were rapidly enlarging. Peake and MacNally, as handbooks of practice, 
 -were out of date within a few years, and no new editions could cure 
 them. In 1814, and then in 1824, came Phillipps and Starkie, — in method 
 combining Evans' philosophy with Peake's strict reflection of the details 
 of practice. There was now indeed a system of evidence, consciously 
 and fully realized. Across the water a similar stage had been reached. 
 By a natural interval Peake's treatise was balanced, in 1810, by Swift's 
 Connecticut book, while Phillipps and Starkie (after a period of suffi- 
 ciency under American annotations) were replaced by Greenleaf's treat- 
 ise of 1842. 
 
 "(6) A.D. 1830-1860. Meantime, the advance of consequences was 
 proceeding, by action and reaction. The treatises of Peake and Phil- 
 lipps, by embodying in print the system as it existed, at the same time 
 
 10 — Compare Campbell's account of the 1807 (Life, I, 214). 
 conditions when he began to report in 
 
10 INTRODUCTORY. No. 6. 
 
 exposed it to the light of criticism. It contained, naturally enough, 
 much that was merely inherited and traditional, much that was out- 
 grown and outworn. The very efforts to supply explicit reasons for 
 all this made it the easier to puncture the insufficient reasons and to 
 impale the irrational rules. This became the office of Bentham. Be- 
 ginning with the first publication, in French, of his Theory of Judicial 
 Evidence, in 1818, the influence of his thought upon the law of evi- 
 dence gradually became supreme. While time has only ultimately vin- 
 dicated and accepted most of his ideas (then but chimeras) for other 
 practical reforms, and though some still remain untried, the results of his 
 proposals in this department began almost immediately to be achieved. 
 Mature experience constantly inclines us to believe that the best results 
 on human action are seldom accomplished by sarcasm and invective; 
 for the old fable of the genial sun and the raging wind repeats itself. 
 But Bentham's case must always stand out as a proof that sometimes 
 the contrary is true, — if conditions are meet. No one can say how long 
 our law might have waited for regeneration, if Bentham's diatribes had 
 not lashed the community into a sense of its shortcomings. It is true 
 that he was particularly favored by circumstances in two material re- 
 spects, — the one personal, the other broadly social. He gained, among 
 others, two incomparable disciples, who served as a fulcrum from which 
 his lever could operate directly upon legislation. Henry Brougham and 
 Thomas Denman combined with singular felicity the qualities of leader- 
 ship in the technical arts of their profession and of energy for the 
 abstract principles of progress. Holding the highest offices of justice, 
 and working through a succession of decades, they were enabled, within 
 a generation, to bring Bentham's ideas directly into influence upon the 
 law. One who reads the great speech of Brougham, on February 7, 
 1828, on the state of the common law courts, and the reports of Den- 
 man and his colleagues, in 1852 and 1853, on the common law pro- 
 cedure, is perusing epoch-making deliverances of the century.^i The 
 other circumstance that favored Bentham's cause was the radical readi- 
 ness of the times. The French Revolution had acted in England; and 
 as soon as the Napoleonic wars were over, the influence began to be 
 felt. One part of public opinion was resolved to achieve a radical 
 change; the other and dominant part felt assured that if the change did 
 not come as reform, it would come as revolution; and so the reform 
 was given, to prevent the revolution. In a sense, it did not much mat- 
 ter to them where the reform came about, — in the economic, or the 
 political, or the juridical field, — if only there was reform. At this stage, 
 Bentham's denouncing voice concentrated attention an the subject of 
 public justice,— criminal law and civil procedure; and so it was here 
 that the movement was felt among the first. As a matter of chrono- 
 
 II — "The great controversy now [1851] justice in this country" (Campbell's Life, 
 
 is upon the Evidence Bill, allowing the II, 292). "Our new procedure (which is 
 
 parties to be examined against and for in truth a juridical revolution) is now 
 
 themselves. . . If it passes, it will ere- [1854] established, and people submit to it 
 
 ate a new era in the administration of quietly" (lb., II, 328). 
 
No. 6. INTRODUCTORY. 11 
 
 logical order, the first considerable achievements were in the field of 
 criminal law, beginning in 1820, under Romilly and Mackintosh; then 
 came the political upheaval of the Reform Bill, in 1832, under Russell 
 and Grey; next the economic regeneration, beginning with Huskisson 
 and culminating with Peel in the Corn Law Repeal of 1846. Not be- 
 fore the Common Law Procedure Acts of 1852 and 1854 were large 
 and final results achieved for the Benthamic ideas in procedure and 
 evidence. But over the whole preceding twenty years had been spread 
 initial and instructive reforms. Brougham's speech of February 7, 
 1828, was the real signal for the beginning of this epoch, — a beginning 
 which would doubtless have culminated more rapidly if urgent economic 
 and political crises had not intervened to absorb the legislative energy. 
 
 "In the United States, the counterpart of this period came only a 
 little later. It seems to have begun all along the line and was doubtless 
 inspired by the accounts of progress made and making in England, as 
 well as by the writings of Edward Livingston, the American Bentham, 
 and by the legislative efforts of David Dudley Field, in the realm of 
 civil procedure. The period from 1840 to 1870 saw the enactment, in 
 the various jurisdictions in this country, of most of the reformatory 
 legislation which had been carried or proposed in England. 
 
 "(7) A. D. i860. After the Judicature Act of 1875, and the Rules 
 of Court (of 1883) which under its authority were formulated, the law 
 of evidence in England attained rest. It is still overpatched and dis- 
 figured with multiplicitous fragmentary statutes, especially for documen- 
 tary evidence. But it seems to be harmonious with the present demands 
 of justice, and above all to be so certain and settled in its acceptance 
 that no further detailed development is called for. It is a sub-stratum 
 of the law which comes to light only rarely in the judicial rulings upon 
 practice. 
 
 "Far otherwise in this country. The latest period in the development 
 of the law of evidence is marked by a temporary degeneracy. Down to 
 about 1870, the established principles, both of common law rules and of 
 statutory reforms, were re-stated by our judiciary in a long series of 
 opinions which, for careful and copious reasoning, and for the common 
 sense of experience, were superior (on the whole) to the judgments 
 -uttered in the native home of our law. Partly because of the Itick of 
 treatises and even of reports, — partly because of the tendency to ques- 
 tion imported rules and therefore to defend on grounds of principle and 
 policy whatever could be defended, — partly because of the moral com- 
 pulsion upon the the judiciary, in new communities, to vindicate by 
 intellectual effort its right to supremacy over the bar, — and partly also 
 because of the advent, coincidently, of the same rationalizing spirit 
 which led to the reformatory legislation, — ^this very necessity of re- 
 statement led to the elaboration of a finely reasoned system. The 
 'mint, anise, and cummin' of mere precedent^'' were not unduly revered. 
 There was always a reason given, — even though it might not always be a 
 -worthy reason. The pronouncement of Bentham came near to be exem- 
 
 12 — Lnmpkin, J., in 33 Ga. 306. 
 
12 INTRODUCTORY, No. 6. 
 
 plified, that 'so far as evidence is concerned, the English practice needs 
 no improvement but from its own stores. Consistency, consistency, is 
 the one thing needful. Preserve consistency, and perfection is accom- 
 plished.'^* 
 
 "But the newest States in time came to be added. New reports 
 spawned a multifarious mass of new rulings in fifty jurisdictions, — 
 each having theoretically an equal claim to consideration. The liberal 
 spirit of choosing and testing the better rule degenerated into a spirit 
 of empiric eclecticism in which all things could be questioned and re- 
 questioned ad infinitum. The partisan spirit of the bar, contesting des- 
 perately on each trifle, and the unjust doctrine of new trials, tempting 
 counsel to push up to the appellate courts upon every ruling of evidence, 
 increased this tendency. Added to this was the supposed necessity in 
 the newer jurisdictions of deciding over again all the details that had 
 been long settled in the older ones. Here the lack of local traditions 
 at the bar and of self-confidence on the bench led to the tedious re- 
 exposition of countless elementary rules. This lack of peremptoriness 
 on the supreme bench, and (no less important) the marked separation 
 of personality between courts of trial and courts of final decision, led 
 also to the multifarious heaping up, within each jurisdiction, of rulings 
 upon rulings involving identical points of decision. This last phenom- 
 enon may be due to many subtly conspiring causes. But at any rate 
 the fact is that in numerous instances, and in almost every jurisdiction, 
 recorded decisions of Supreme Courts upon precisely the same rule and 
 the same application of it can be reckoned by the dozens and scores. 
 This wholly abnormal state of things — in clear contrast to that of the 
 modern English epoch — is the marked feature of the present period of 
 development in our. own country. 
 
 "Of the change that is next to come, and of the period of its arrival, 
 there seem as yet to be no certain signs. Probably it will come either 
 in the direction of the present English practice — ^by slow formation of 
 professional habits — or in the direction of attempted legislative relief 
 from the mass of bewildering judicial rulings — by a concise code. The 
 former alone might suffice. But the latter will be a false and futile 
 step, unless it is founded upon the former ; and in any event the danger 
 is that it will be premature. A code fixes error as well as truth. No 
 code can be worth casting, until there has been more explicit discussion 
 of the reasons for the rules and more study of them from the point of 
 view of synthesis and classification. The time must first come when, 
 in the common understanding and acceptance of the profession, 'every 
 rule is referred articulately and definitely to an end which it subserves, 
 and when the grounds for desiring that end are stated or are ready to 
 be stated in words.' "^* 
 
 13— Rationale of Judicial Evidence, b. X, have no need to think or be thought 
 
 conclusion. Bentham never failed to preach about,' is the argument of jurisprudence" 
 
 the impropriety of not furnishing reasons. (b. II, c. X, § 12; so also in b. Ill, c. 
 
 " 'I think, therefore I exist,* was the ar- IV, note), 
 
 gument of Descartes; 'I exist, therefore I 14— Mr. Justice Holmes. 
 
BOOK I. 
 
 WHAT FACTS MAY BE PRESENTED AS 
 EVIDENCE. 
 
 (ADMISSIBILITY.) 
 
 INTRODUCTORY. 
 
 Classification of the Rules of Admissibility.^ "It follows, from 
 the foregoing considerations, that the rules of admissibility may be 
 grouped under three heads, the first dealing with the probative 
 ' value of specific facts, the second including artificial rules which 
 
 do not profess to define probative value but yet aim at increasing or 
 safeguarding it, and the third covering all those rules v/hich rest on 
 extrinsic policies irrespective of probative value. 
 
 "The first group of rules (Part I, post) attempts to define, for legal 
 purposes, the amount of probative value which suffices to entitle a fact 
 to be regarded as evidential. Here the law is concerned with the rules 
 of logic and inference as applied in practical experience, i. e., with Rel- 
 evancy. Circumstantial, Testimonial, and 'Real' evidence are the three 
 great classes ; and each has its special problems. 
 
 "The second group of rules (Part II, post) lays down auxiliary tests 
 and safeguards, usually for particular kinds of facts, over and above 
 the required minimum probative value. The hearsay rule, the rules of 
 quantity, the rule of the oath, and a dozen others, belong here. An 
 analysis of the general policy and relation of this group to the others 
 is elsewhere made (§ 1171, post). 
 
 "The third group of rules (Part III, post) invokes, for the exclusion 
 of certain kinds of facts, extrinsic policies which override the policy of 
 ascertaining the truth by all available means. These rules concede that 
 the evidence in question has all the probative value that can be required, 
 and yet exclude it because its admission would injure some other cause 
 more than it would help the cause of truth, and because the avoidance 
 of that injury is considered of more consequence than the possible 
 harm to the cause of truth. Most of these rules consist in giving cer- 
 
 I— Quoted from W., § 11. 
 
 13 
 
14 ADMISSIBILITY. No. 7. 
 
 tain kinds of persons an option — i. e. a Privilege — to withhold the evi- 
 dential fact. 
 
 "Finally a group of rules (Part IV, post) known as the Parol Evi- 
 dence rule, but belonging really to the substantive law, remains to be 
 considered, since by tradition it has been ranked among the rules of 
 evidence." 
 
 Professor James Bradley Thayer, Preliminary Treatise on Evi- 
 dence {i8p8), pp. ip8, 264, 268: "There is one precept to be mentioned, 
 which is not so much a rule of evidence as a presupposition 
 involved in the very conception of a rational system of evidence 
 as contrasted with the old formal and mechanical systems, viz., that 
 nothing which is not supposed to be relevant, i, e., logically probative, 
 shall be received. . . . Reasoning, the rational method of settling 
 disputed questions, is the modern substitute for certain formal and 
 mechanical tests which flourished among our ancestors for centuries, 
 and in the midst of which the trial by jury emerged. When two men 
 to-day settle which is the 'best man' by a prize-fight, we get an accurate 
 notion of the old Germanic trial. Who is it that 'tries' the question? 
 The men themselves. There are referees and rules of the game, but no 
 determination of the dispute on the grounds of reason, — ^by the rational 
 method. So it was with 'trial by battle' in our old law; the issue of 
 right, in a writ of right, including all elements of law and fact, was 
 'tried' by this physical struggle, and the judges of the Common Pleas 
 sat, like the referee at a prize-fight, simply to administer the procedure, 
 the rules of the game. So of the King's Bench in criminal appeals; 
 and so sat Richard II at the trial of the appeal of treason between 
 Bolingbroke and Norfolk, as Shakespeare represents it in the play. So 
 of the various ordeals ; the accused party 'tried' his own case by under- 
 going the given requirement as to hot iron, or water, or the crumb. So 
 of the oath; the question, both law and fact, was 'tried' merely by the 
 oath, with or without fellow-swearers. The old 'trial by witnesses' was 
 a testing of the question in like manner by their mere oath. So a rec- 
 ord was said to 'try' itself. And so when out of the midst of these 
 methods first came the trial by jury, it was the jury's oath, or rather 
 their verdict, that 'tried' the case. . . . There is another precept 
 which it is convenient to lay down as a preliminary one in stating the 
 law of evidence, viz., that, unless excluded by some rule or principle 
 of law, all that is logically probative is admissible. This general admis- 
 sibility of what is logically probative is not, like the former precept, a 
 necessary presupposition in a rational system of evidence, . . . but yet 
 ... it is important to notice this also as being a fundamental proposi- 
 tion. In a historical sense, it has not been the fundamental rule to 
 which the various exclusions were exceptions. . . . [But] the main 
 propositions which I have stated should, in the order of thought, be 
 first laid down and always kept in mind." 
 
No. 10. INTRODUCTORY. 15 
 
 IRISH SOCIETY v. DERRY (1846). 
 
 12 CI. & F. 641, 673. 
 
 Lord, Brougham : "The main error which ran through the argument 
 of the very learned and ingenious counsel . . . was that they seemed 
 to confound the purpose for which evidence was tendered and 
 " admitted, with the admissibility of that evidence. The evidence 
 
 tendered to prove any point may be perfectly inadequate to prove that 
 point. It may be such that if the learned judge put it to the jury as 
 sufficient proof, his directions to them upon that point might well be a 
 subject of exception. Yet the same evidence might be perfectly well 
 admitted and received, for such purposes to which it was strictly and 
 correctly applicable. . . . Suppose that in a cause at Nisi Prius, the 
 defendant produces a letter under my hand; that letter is received in 
 evidence, though it may be very true it does not prove the fact for 
 which purpose the defendant put it in. If the judge refuses to receive 
 it, his direction is liable to be excepted against for that refusal. If he 
 receives and states erroneously to the jury that it proves the point 
 which it does not, his direction is liable to be excepted against upon 
 another ground. But still it may be properly receivable in evidence, 
 
 . though it does not prove the matter, to prove which it was offered in 
 
 ~ evidence." 
 
 PEOPLE V. DOYLE (1870). 
 
 21 Mich. 221, 22^. 
 
 "Whenever a question is made upon the admission of evidence, it is 
 indispensable to consider the object for which it is produced, and the 
 point intended to be established by it. . . . It frequently happens 
 ■'■'' that an item of proof is plainly -relevant and proper for one 
 purpose, while wholly inadmissible for another which it would naturally 
 tend to establish. And when this occurs, the evidence when offered for 
 the legal purpose can no more be excluded on the ground of its apti- 
 tude to show the unauthorized fact than its admission to prove such 
 unauthorized fact can be justified on the ground of its aptness to prove 
 another fact legally provable under the issue."^ 
 
 1 — Compare the following: pellant to offer it as evidence for any other 
 
 Coodhand v. Benton, 6 G. & J. 481, 488 purpose for which it was legally compe- 
 
 (1834); Dorsey, J.; "For the purpose for tent. Had the defendant offered the ac- 
 
 which the account was offered in evidence, count generally, without specifying his oh- 
 
 we think it clearly inadmissible and approve ject, or had stated it to be to contradict 
 
 of its rejection by the County Court. ... or discredit the testimony of the witness 
 
 In the Court's rejection of the account, given on his examination in chief, . . . 
 
 they do not declare it admissible evidence there could not have been » doubt as to 
 
 for no purpose; but simply that.it was in- its legal admissibility." 
 
 admissible for the purpose for which it Compare the authorities cited in W., 5 
 
 was offered. It was still open to the ap- 13. 
 
16 ADMISSIBILITY. No. 11. 
 
 CHICAGO CITY R. CO. v. CARROLL (1903). 
 
 206 III. 318, 68 N. E. 1087. 
 
 The plaintiff having been allowed, after the close of both cases, to 
 offer evidence of the defendant's ownership of the car on which the 
 injury occurred, and the defendant then desiring to offer, for the 
 ^^ first time, evidence of the due inspection of the cars, the defend- 
 ant's attorney said: "We desire to offer evidence on the question of 
 inspection," and the Court replied: "I will not receive any evidence, 
 except as to the ownership of this line, at this stage"; this was held 
 not a sufficient offer. Ricks, J.: "No witness was put upon the stand. 
 No question was asked. Nothing was done, except a mere conversa- 
 tion or talk had between counsel for appellant and the Court. Such 
 procedure as that does not amount to an offer of evidence, and the 
 remarks of the Court did not amount to a refusal to admit evidence. 
 There can be no refusal to admit that which has not been offered; and 
 counsel cannot, by engaging in a mere conversation with the Court, 
 although it may relate to the procedure, by merely stating what he 
 desires to do, get a ruling from the Court upon which he can predicate 
 error. If appellant desired to make the contention it now makes, it 
 should have at least put a witness upon the stand, and proceeded far 
 enough till the question relative to the point it is now said it was de- 
 sired to offer evidence upon was reached, and then put the question, and 
 allowed the Court to rule upon it, and then offered what was expected 
 to be proved by the witness, if he was not allowed to answer the ques- 
 tion asked."^ 
 
 RUSH V. FRENCH (1874). 
 
 I Aris. pp, 123, 25 Pac. 816. 
 
 Dunne, C. J.: "A party wishing the benefit of the remedy must, at 
 the time he complains, show how he is hurt ; in the language of the old 
 
 authorities, he must lay his finger upon the point of objection. 
 
 ... He will not merely complain in a general way, and say that 
 to let certain evidence in will hurt his case, and that under the law it 
 ought to be excluded, and leave the judge and opposite side in the dark 
 as to what principle of law he relies on, and compel them to decide 
 haphazard, or else stop the trial of the cause, with a jury waiting, while 
 the counsel examine the whole body of the law, from the earliest judi- 
 cial expositions down to the latest act of the legislature, to see if they 
 can discover any valid objection to the testimony. The opposing coun- 
 sel can make no reply to a general objection, except to throw the whole 
 responsibility upon the judge at once, or else begin systematically and 
 argue that under any possible objection the testimony should come in. 
 
 2 — Compare the authorities cited in W., § 17. 
 
No. 13. INTRODUCTORY. 17' 
 
 Many trials under such a system would practically never end. The 
 effect oi it would be to compel one party to fight in the dark, not know- 
 ing when his opponent intended to strike, while the other would be free 
 to choose his weapons, and the time and place to use them. Such things 
 may do in love or war, when all things are said to be fair; but life is 
 too short to transact business on such a system in courts of justice. 
 , . . An objection that the testimony is 'irrelevant' without specifying 
 wherein or how or why it is irrelevant will not be considered in the 
 Supreme Court as raising any issue, if the testimony could, under any 
 possible circumstances, have been relevant. An objection that the testi- 
 mony is 'inadmissible' may be disregarded; it amounts to no more than 
 the assertion that the evidence is illegal; the objection should fully and 
 specifically point out how it is inadmissible. When an objection is that 
 the evidence offered is 'incompetent and illegal,' it is the duty of the 
 court to overrule it if the evidence was admissible for any purpose. An 
 objection that evidence is 'incompetent' does not raise any issue as to 
 whether the question is leading or not. The only way to raise such an 
 issue is to object specifically that the question is leading. . . . The object 
 of requiring the grounds of objection to be stated, which may seem to 
 be a technicality, is really to avoid technicalities and prevent delay in 
 the administration of justice. When evidence is offered to which there 
 is some objection, substantial justice requires that the objection be 
 specified, so that the party offering the evidence can remove it, if pos- 
 sible, and let the case be tried on its merits. If it is objected that the 
 question is leading, the form may be changed; if that the evidence is 
 irrelevant, the relevancy may be shown; if that is incompetent, the 
 incompetency may be removed ; if that is immaterial, its materiality may 
 he established; if to the order of introduction, it may be withdrawn and 
 offered at another time — and thus appeals could often be saved, delays 
 avoided, and substantial justice administered." 
 
 WOLVERTON v. COMMONWEALTH (1821). 
 7 S. & R. 273, 276. 
 Scire facias on a sheriff's recognizance; the breach being that the 
 defendant had suffered the escape of one Forbes, a debtor held under 
 an execution. Gibson, J.: "The plaintiffs further offered parol 
 evidence of the contents of the execution, on which Forbes (for 
 whose escape the suit was brought) was committed; having first given 
 notice to the defendants to produce the said execution ; the admission of 
 ■which testimony was then and there objected to by the counsel of the 
 defendants, on the ground that a record could not be proved by parol 
 evidence. The objection in this court is, that parol evidence was inad- 
 missible, before the execution was shown to have come to the defend- 
 ants' possession, or to be lost or destroyed ; and I, at once, admit, that if 
 it had been put on that ground at the trial, it ought to have prevailed; 
 but I apprehend there has been a total change of position, since the 
 
18 ADMISSIBILITY. No. 13. 
 
 cause came here. Now I take it to be an inflexible rule, and one of 
 the utmost value, both in pleading and evidence, that whatever is not 
 denied or made special ground of objection is conceded. Thus, if a 
 party being called on for that purpose opens the particular view with 
 which he offers any part of his evidence, or states the object to be 
 attained by it, he precludes himself from insisting on its operation in 
 any other direction, or for any other object; and the reason is, that the 
 opposite party is prevented from objecting to its competency in any view 
 different from the one proposed. In like manner, a party may be called 
 on to state the particular ground on which he rests an objection to 
 competency, and if it fails him, it is not error to receive the evidence, 
 although it be incompetent on other grounds. Where, therefore, there 
 is a special objection, or, what is the same in effect, a general objection 
 resting, not on collateral circumstances, but on the supposed existence 
 of an abstract principle admitting of no exception, as was the case here, 
 every ground of exception which is not particularly occupied, is to be 
 considered as abandoned. For instance, a deposition is offered, and it 
 is resisted exclusively on the ground, that the witness is interested, or 
 that the evidence is irrelevant; would it not be palpably unjust in a 
 court of error, to listen to an objection, that it did not appear there had 
 been proof of notice, or that the deposition had in all respects been 
 regularly taken? If the defect were pointed out in time, it might be 
 supplied by further proof; or if that were impossible, the party would, 
 at least, be apprised of the danger to ultimate success, which is nec- 
 essarily incurred by pressing the admission of incompetent testimony. 
 Here, if instead of urging the abstract operation of the rule, the defend- 
 ants had objected that the case did not fall within the particular excep- 
 tion to it, now relied on, the plaintiffs might have been prepared to show 
 that the execution actually came to the hands of the sheriff, or that it 
 was lost or destroyed; but, as to that, the silence of their antagonists at 
 the trial, had a direct tendency to lead them into a surprise."' 
 
 WRIGHT v. SHARP (1709). 
 
 I Salk. 288. 
 
 "A corporation-book was offered in evidence at the assizes to prove 
 a member of the corporation not in possession, and refused. No bill 
 of exceptions was then tendered, nor were the exceptions reduced 
 to writing; so the trial proceeded, and a verdict was given for 
 the plaintiff. Next term the Court was moved for a bill of exceptions, 
 and it was stirred and debated in Court. It was urged, that the law 
 requires quod proponat exceptionem suam, and no time is appointed for 
 the reducing it into writing, and the party is not grieved till a verdict 
 be given against him; and the same memory that serves the judges for 
 a new trial will serve for bills of exceptions. On the other side it was. 
 
 3 — Compare the authorities cited in W., § i8. 
 
No. 15. INTRODUCTORY. 19 
 
 said, that this practice would prove a great difficulty to judges, and 
 delay of justice; that the precedents and entries suppose the exception 
 to be written down upon its being disallowed, and the statute ought to 
 be construed so as to prevent inconvenience; besides the words of the 
 act are in the present tense, and so is the writ formed on the act. 
 Holt, C. J.: 'If this practice should prevail, the judge would be in a 
 strange condition : He forgets the exception, and refuses to sign the bill, 
 so an action must be brought : You should have insisted on your excep- 
 tion at the trial: You waive it if you acquiesce, and shall not resort 
 back to your exception after a verdict against you, when perhaps, if you 
 had stood upon your exception, the party had other evidence, and need 
 not have put the cause on this point. The statute indeed appoints no 
 time, but the nature and reason of the thing requires the exception 
 should be reduced to writing when taken and disallowed, like a special 
 verdict, or a demurrer to evidence; not that they need be drawn up in 
 form; but the substance must be reduced to writing while the thing is 
 transacting, because it is to become a record.' " 
 
 RUSH V. FRENCH (1874). 
 
 I Ariz, pp, 121, 25 Pac. 816. 
 
 Dunne, C. J. : "The cases where we are called on to review rulings 
 on the admission of evidence may be reduced to two classes: i. When 
 the party objecting was overruled and he appeals. 2. When the 
 '■^ party objecting was sustained and the other side appeals. In the 
 first case, where the party objecting was overruled and he appeals, he 
 must show by the record : ( i ) What the question was, and what answer 
 was given to it, or what the evidence was which was introduced against 
 his objection. This is important because the evidence admitted may not 
 injure him. The answer may have been in his favor. It is not nec- 
 essary that he should show clearly that he was injured, because that 
 would often be impossible, but he must show that the evidence was 
 admitted against his valid objection, which, it may be, has injured him; 
 for the object of granting a review by this Court is not to determine 
 the abstract questions as to whether the judge below ruled correctly or 
 not, but to give relief in case a party may have been injured by an 
 erroneous ruling. (2) He must set out enough of the evidence to illus- 
 trate the point of his objection, and to raise the presumption that he 
 may have been injured; but where error is shown, injury will be pre- 
 sumed, unless the contrary clearly appears. (3) He must show what 
 kind of an objection was made, and to avail him here he must show that 
 the objection as made was good. Then it is for the other party to see 
 that the statement made contains a showing sufficient to sustain the 
 admission of the evidence as against the objection made. The amount 
 of showing the latter party depends upon the nature of the objection. 
 If the party objecting interpose merely a general objection, all that is 
 necessary is to show enough to obviate the general objection. If the 
 
20 ADMISSIBILITY. No. 15. 
 
 objection is specific, all that is necessary is to show enough to obviate 
 the specific objection as made. Beyond this, we cannot in reason require 
 him to go. He should defend himself against the particular attack 
 made, but we cannot ask him to fortify himself against all possible 
 attacks which might have been made. 2. In the second case, where the 
 party objecting was sustained, and the other side appeals and asks to 
 have the ruling declared erroneous, the party appealing must see that 
 the record shows: (i) What question he asked or what evidence he 
 sought to introduce; (2) Sufficient of the other evidence to illustrate 
 the admissibility of that offered; (3) That the evidence so offered was 
 excluded; (4) That there is reasonable ground to presume that he may 
 have been injured by such exclusion. The other party must see that 
 the record shows good grounds of exclusion."* 
 
 4— Compare the authorities cited in W., § 20. 
 
No. 17. BOOK I : ADMISSIBILITY, 21 
 
 PART I. 
 RELEVANCY. 
 
 INTRODUCTORY. 
 
 Thomas Starkie, Evidence, I, 13 {1824) : "Where knowledge can- 
 not be acquired by means of actual and personal observation, there are 
 but two modes by which the existence of a bygone fact can be 
 ^" ascertained: ist. By information derived either immediately or 
 mediately from those who had actual knowledge of the fact; or, 2dly, 
 by means of inferences or conclusions drawn from other facts connected 
 with the principal fact which can be sufficiently established. In the first 
 case, the inference is founded on a principle of faith in human veracity 
 sanctioned by experience. In the second, the conclusion is one derived 
 by the aids of experience and reason from the connection between the 
 facts which are known and that which is unknown. In each case the 
 inference is made by virtue of previous experience of the connection 
 between the known and the disputed facts, although the grounds of such 
 inference in the two cases materially differ." 
 
 COMMONWEALTH v. WEBSTER (1850). 
 
 5 Cush. 2p5, 2p6, 2pp, 310. 
 
 The defendant, professor of chemistry, in the medical college, in 
 Boston, attached to the university at Cambridge, was indicted in the 
 municipal court at the January term, 1850, for the murder of Dr. 
 " George Parkman, at Boston, on the 23d of November, 1849. 
 The government introduced evidence, that Dr. George Parkman, quite 
 peculiar in person and manners, and very well known to most persons 
 in the city of Boston, left his home in Walnut street in Boston in the 
 forenoon of the 23d of November, 1849, in good health and spirits ; and 
 that he was traced through various streets of the city until about a 
 quarter before two o'clock of that day, when he was seen going towards 
 and about to enter the medical college: That he did not return to his 
 home: That on the next day a very active, particular and extended 
 search was commenced in Boston and the neighboring towns and cities, 
 and continued until the 30th of November ; and that large rewards were 
 
22 RELEVANCY. NO. 17. 
 
 offered for information about Dr. Parkman: That on the 30th and 31st 
 of November, certain parts of a human body were discovered/ in and 
 about the defendant's laboratory in the medical college; and a great 
 number of fragments of human bones and certain blocks of mineral 
 teeth, imbedded in slag and cinders, together with small quantities of 
 gold, which had been melted, were found in an assay furnace of the. 
 laboratory; That in consequence of some of these discoveries the de- 
 fendant was arrested on the evening of the 30th of November; That 
 the parts of a human body so found resembled in every respect the cor- 
 responding portions of the body of Dr. Parkman, and that among them 
 all there were no duplicate parts; and that they were not the remains 
 of a body which has been dissected; That the artificial teeth found in 
 the furnace were made for Dr. Parkman by a dentist in Boston in 
 1846, and refitted to his mouth by the same dentist a fortnight before 
 his disappearance; That the defendant was indebted to Dr. Parkman 
 on certain notes, and was pressed by him for payment; that the defend- 
 ant had said that on the 23d of November, about nine o'clock in the 
 morning, he left word at Dr. Parkman's house, that if he would come to 
 the medical college at half past one o'clock on that day, he would pay 
 him; and that, as he said, he accordingly had an interview with Dr. 
 Parkman at half past one o'clock on that day, at his laboratory in the 
 medical college; That the defendant then had no means of paying, and 
 that the notes were afterwards found in his possession. Several wit- 
 nesses, called for the defence, testified that they saw Dr. Parkman at 
 various places in Boston, at different times between the hours of a 
 quarter before two and five, in the afternoon of the 23d of November. 
 The attorney-general, in rebutting the evidence for the defendant, pro- 
 posed to call witnesses to show that there was a person about the streets 
 of Boston, at the time of Dr. Parkman's disappearance, who bore a 
 strong resemblance to him, in form, gait, and manner ; so strong that 
 he was approached and spoken to, as Dr. Parkman, by persons well 
 acquainted with the latter. The Court excluded the evidence. 
 
 Shaw, C. J.: "The prisoner at the bar is charged with the wilful 
 murder of Dr. George Parkman. This charge divides itself into twa 
 principal questions, to be resolved by the proof: first, whether the party 
 alleged to have been murdered came to his death by an act of violence 
 inflicted by any person; and if so, secondly, whether the act was com- 
 mitted by the accused. Under the first head we are to inquire and 
 ascertain, whether the party alleged to have been slain is actually dead ; 
 and, if so, whether the evidence is such as to exclude, beyond reason- 
 able doubt, the supposition that such death was occasioned by accident 
 or suicide, and to show that it must have been the result of an act of 
 violence. When the dead body of a person is found, whose life seems, 
 to have been destroyed by violence, three questions naturally arise. 
 Did he destroy his own life? Was his death caused by accident? Or 
 was it caused by violence inflicted on him by others? In most in- 
 
No. 17. INTRODUCTORY. 23 
 
 Stances, there are facts and circumstances surrounding the case, which, 
 , taken in connection with the age, character, and relations of the de- 
 ceased, will put this beyond doubt. This case is to be proved, if proved 
 at all, by circumstantial evidence; because it is not suggested that any 
 direct evidence can be given, or that any witness can be called to give 
 direct testimony, upon the main fact of the killing. Each of these 
 modes of proof has its advantages and disadvantages; it is not easy 
 to compare their relative value. The advantage of positive evidence 
 is, that it is the direct testimony of a witness to the fact to be 
 proved, who, if he speaks the truth, saw it done ; and the only 
 question is, whether he is entitled to belief. The disadvantage is, 
 that the witness may be false and corrupt, and that the case may 
 not afford the means of detecting his falsehood. But, in a case 
 of circumstantial evidence where no witness can testify directly to 
 the fact to be proved, it is arrived at by a series of other facts, which 
 by experience have been found so associated with the fact in question, 
 that in the relation of cause and effect, they lead to a satisfactory and 
 certain conclusion; as when footprints are discovered after a recent 
 snow, it is certain that some animated being has passed over the snow 
 since it fell; and, from the form and number of the footprints, it can 
 be determined with equal certainty, whether they are those of a man, 
 a bird, or a quadruped. Circumstantial evidence, therefore, is founded 
 on experience and observed facts and coincidences, establishing a con- 
 nection between the known and proved facts and the fact sought to 
 be proved. The advantages are, that, as the evidence commonly comes 
 from several witnesses and different sources, a chain of circumstances 
 is less likely to be falsely prepared and arranged, and falsehood and 
 perjury are more likely to be detected and fail of their purpose. The 
 disadvantages are, that a jury has not only to weigh the evidence of 
 facts, but to draw just conclusions from them; in doing which, they 
 may be led by prejudice or partiality, or by want of due deliberation and 
 sobriety of judgment, to make hasty and false deductions; a source of 
 error not existing in the consideration of positive evidence." 
 
24 BOOK I : ADMISSIBILITY. PART I : RELEVANCY, No. 18. 
 
 TITLE I. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 Professor Alfred Sidgwick, Fallacies: a View of Logic from the 
 Practical Side, pp. s'/o, S39 {1S84) : "There is at bottom one primary 
 source of fallacy in the inductive argument, call it by whatever 
 ■'•* name may be most convenient. We may name it, for instance, 
 the danger of overlooking plurality of causes, or of neglecting possible 
 chance or counteraction, or the possibility of unknown antecedents, or 
 of arguing either post hoc ergo propter hoc or per enumerationem sini- 
 plicem, or of neglecting to exclude alternative possibilities, or of for- 
 getting that facts may bear more than one interpretation, or of stating 
 the law too widely, or of failing to see below the surface, or — ^perhaps 
 on the whole the best of all — of unduly neglecting points of difference. 
 . . . [The form of argument is] a case or cases brought forward of 
 which such law is asserted to be the best explanation. If, then, some 
 better explanation is possible, the theory as stated is impeachable. . . . 
 By the best explanation is meant . . . that solitary one out of all pos- 
 sible hypotheses which, while explaining all the facts already in view, 
 is narrowed, limited, hedged, or qualified, sufficiently to guard in the 
 best possible way against undiscovered exceptions. . . . Hence, the 'best' 
 explanation of the facts A and B and C is that explanation which, 
 while neglecting certain points of difference among them, and thus form- 
 ing some generalization, neglects only those differences which are 'un- 
 essential.' The best explanation of (t. e. generalization from) one soli- 
 tary sequence observed is that which neglects only its unessential ele- 
 ments or features. ... It is in every case, then, through undue neglect 
 of the essential difference between the specific case or cases observed and 
 the wider genus to which the assertion professes to refer, that we rise 
 to a generalization not sufficiently guarded against possible exceptions. 
 . . . All positive proof depends ... on the care, the precautions with 
 which observation has been interpreted and experiment conducted. So 
 far only as these exclude alternative possibilities are they of real value. 
 . . . Because all positive assertion can only justify itself . . . when 
 mistakes have been either one by one eliminated or in a body pre- 
 vented, the burden of doubt to be removed by evidence consists essen- 
 tially in the group of alternative theories regaining undiscarded. . . . 
 The important point is, always, to show that all other possible theories 
 are weighed in the balance and found wanting, — that is to say, that all 
 
No. 19. INTRODUCTORY. 25 
 
 precautions have been taken against that crudest kind of unchecked gen- 
 eralization which the least trained niind possesses in the greatest abund- 
 ance. This objection against a theory, that alternative theories are not 
 yet discarded, appears, however, more directly applicable, more fruitful 
 of results, against a concrete or an abstract-concrete thesis than against 
 a directly abstract one. . . . And the right of the theory chosen, over 
 all its possible rivals, depends entirely upon the depth of our insight into 
 the conditions under which the experiment or observation was really 
 made. This is the main lesson of Logic as regards Induction. . . ? 
 These alternatives have to be faced as possible explanations of each 
 observed case; and the immediate question in each case is, What cer- 
 tainty can we obtain that the alternative chosen is the right one out of 
 all those conceivable? The methods of Inductive Proof may be viewed 
 as attempts to answer this question." 
 
 COHN V. SAIDEL (1902). 
 
 71 N. H. 558, 53 Ail. 800. 
 
 Malicious prosecution; an instruction that the mere fact of the pres- 
 ent defendants' submission to nonsuit in the former action warranted 
 a conclusion that they had no probable cause in the beginning 
 was held to have been properly refused. Walker, J. : "The 
 argument is that that fact alone warrants the inference of a want of 
 probable cause. But the fact of the nonsuit alone is direct evidence 
 of no mental state on the part of the defendants, except that they did not 
 desire to carry on the litigation at that time. It may be said that it 
 establishes that fact conclusively. If it does, and if it might be inferred 
 that they became nonsuit because, as then informed, they did not think 
 they had a probable cause of action, it is necessary to go a step further 
 in this mental operation, and to infer from this inference that the de- 
 fendants, when they brought the suits, nearly a year before, upon in- 
 formation they then possessed, did not, as reasonable and prudent men, 
 honestly believe they had a cause of action. There is no open and 
 visible connection between the fact first proved, viz., that the defendants 
 desired to withdraw their suits in April, 1900, and the fact to be 
 proved, viz., that they had no probable cause of action in July, 1899. 
 A great variety of reasons exist which may induce a plaintiff to become 
 nonsuit, one of which may be that he has discovered or become con- 
 vinced that he has no case. This, however, is but a mere conjecture. 
 It is but one of a large number of sufficient reasons for such action. 
 It cannot even be said to be the common or ordinary reason that 
 induces a plaintiff to become nonsuit. In a particular case it may or 
 it may not be the true reason. Unconnected with other evidence, it is 
 pure conjecture. But one conjecture cannot be treated as a proved 
 fact in order to reach another conjecture. In view of the fact that the 
 reasons for becoming nonsuit are numerous, and that the plaintiff's 
 
26 CIRCUMSTANTIAL EVIDENCE. No. 20. 
 
 belief that he had no cause of action in the beginning is probably a 
 very rare one, the above rule would not seem to be reasonable, unless 
 it is reasonable to require the defendant to prove his nonliability in the 
 first instance. The logic of legal procedure does not lead to such a 
 result."! 
 
 AMOSKEAG MANUFACTURING CO. v. HEAD (1879). 
 
 5P N. H. 332. 
 
 Petition for damages to be assessed for flowing the plaintiff's land 
 by the building of a dam. On the issue of value, the defendant offered 
 to show the sums paid to thirty-two other parties for damage 
 done by the same dam. This was excluded. Doe, C. J. : "The 
 evidence offered by the defendant, of the sums paid by the plaintiffs 
 to thirty-two persons for thirty-two rights of flowage, would be inef- 
 fective and immaterial if unaccompanied by other evidence tending to 
 show the damage done in those cases, and such a state of facts as 
 would enable the jury to draw a fair inference as to the value of the 
 defendant's land from the value of the other tracts. If such other 
 evidence were offered, one question would be, whether the thirty-two 
 other cases should be opened for trial in this case. The practice of 
 trying collateral issues has been considerably extended in this State 
 during the last forty years. . . . But how far a trial can justly and 
 reasonably go upon such issues is often a question of fact. The 
 trial to which parties are entitled is not an endless one, nor one 
 unreasonably protracted and exhausting. There may be a vast 
 amount of evidence, relevant in a certain legal sense, but so unim- 
 portant, 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 pur- 
 poses of justice, under the circumstances of the particular case, 
 they are not necessarily entitled, as a matter of law, to go further in 
 that direction. The evidence of the sums paid for flowage in the thirty- 
 two other cases, if, as a matter of law, it was not incompetent, might be 
 excluded on the ground that, as a matter of fact, it had so slight or 
 remote a bearing on this case that it would be unjust or unreasonable 
 
 I — stone, J., in Maitison v. State, ss AI3., tends to shed light on the main inquiry, 
 
 224, 232 (1876): "In inquiries of fact and does not withdraw attention from such 
 
 dependent on circumstantial evidence for main inquiry by obtruding upon the minds 
 
 their solution, no certain rule can be laid of the jury matters which are foreign or 
 
 down which will define with unerring ac- of questionable pertinency, is as a general 
 
 curacy what collateral facts arid circum- rule admissible evidence. On the other 
 
 stances are sufSciently proximate to justify hand, undue multiplication of the issues is 
 
 their admission in evidence. Human trans- to be steadily guarded against, as tending 
 
 actions are too varied to admit of such to divert the minds of jurors from the 
 
 clear declaration of the rule. Whatever main issue." 
 
JSIO. 21. CHARACTER, AS EVIDENCE. 27 
 
 to prolong and complicate the trial by such an investigation of those 
 cases as would be necessary for obtaining from them any useful infor- 
 mation."2 
 
 SUB-TITLE I: 
 
 EVIDENCE TO PROVE A HUMAN ACT. 
 Topic A: Moral Character, as Evidence. 
 
 T. McNally, Evidence, 320 (1802, Ireland): "It has been hereto- 
 fore held that a prisonef- cannot examine to character, except in 
 favorem vifcs, when charged on a capital indictment; but the 
 rule is now wisely extended to all cases of misdemeanors. And 
 this appears to have been the ancient practice. In R. v. Brown, 1798, 
 . . . the point appears finally settled. . . . Lord Carlton, C. J. C. P., 
 said he had conversed with many of the judges on the subject now 
 before the court, who thought, as he did, that . . . evidence of such a 
 nature might be very material; for example, suppose a man of very 
 great property was indicted for perjury, where the object to be attained 
 by the perjury was a mere trifle, for instance a shilling; or suppose a 
 man to be charged with a riot or assault who was known to be of a 
 peaceable and quiet disposition; evidence of character in such cases, 
 directly encountering the nature of the charge in the indictment, must 
 be of the last importance. . . . Lord Kilwarden, C. J. K. B., agreed 
 with Lord Carlton, and observed that the reason generally assigned for 
 the admission of such evidence in capital cases only was altogether un- 
 satisfactory to his mind. It was said to be 'in favorem vital but he 
 had no conception, according to the principles of sound sense and right 
 reason, that character could be evidence in a case affecting the life of 
 a man, and yet not evidence in a case affecting his freedom, his prop- 
 erty, and his reputation." 
 
 COMMONWEALTH v. HARDY (1807). 
 
 2 Mass. 317. 
 
 Parsons, C. J., "said that he was of opinion that a prisoner ought 
 to be permitted to give in evidence his general character in all [crim- 
 
 2 — Rolfe, B., in Attorney-General v. portance, it might be possible, and perhaps 
 
 Hitchcock, I Exch. 91, 105 (1847): "The proper, to throw a light on matters in 
 
 laws of evidence on this subject as to what which every possible question might be 
 
 ought and what ought not to be received, suggested, for the purpose of seeing by 
 
 must be considered as founded on a sort such means whether the whole was un- 
 
 of comparative consideration of the time to founded, or what portion of it was not, 
 
 be occupied in examinations of this nature, and to raise every possible inquiry as to 
 
 and the time which it is practicable to be- the truth of the statements made. But I 
 
 stow upon them. If we lived for a thou- do not see how that could be; in fact, 
 
 sand years instead of about sixty or sev- mankind find it to be impossible. Therc- 
 
 enty, and every case were of sufficient im- fore some line must be drawn." 
 
28 CIRCUMSTANTIAL EVIDENCE. NO. 22 
 
 inal] cases; for he did not see why it should be evidence in a 
 "* capital case and not in cases of an inferior degree. In doubtful 
 cases, a good general character, clearly established, ought to have 
 weight v/ith a jury; but it ought not to prevail against the positive tes- 
 timony of credible witnesses. Whenever the defendant chooses to call 
 witnesses to prove his general character to be good, the prosecutor may 
 offer witnesses to disprove their testimony. But it is not competent for 
 the prosecutor to go into this inquiry, until the defendant has voluntarily 
 put his character in issue; and in such case there can be no examina- 
 tion as to particular facts."^ 
 
 R. v. ROWTON (1865). 
 
 Leigh & C. 520, 540. 
 
 WiLLES, J.: "[Character] is strictly relevant to the issue; but it is 
 not admissible upon the part of the prosecution because, as my brother 
 Martin says, if the prosecution were allowed to go into such evi- 
 dence, we should have the whole life of the prisoner ripped up, 
 and, as has been witnessed elsewhere, upon a trial for murder you might 
 begin by showing that when a boy at school the prisoner had robbed 
 an orchard, and so on through the whole of his life; and the result 
 would be that the man on his trial might be overwhelmed by preju- 
 dice, instead of being convicted by that affirmative evidence which the 
 law of this country requires. The evidence is relevant to the issue, 
 but is excluded for reasons of policy and humanity; because although 
 by admitting it you might arrive at justice in one case out of a hun- 
 dred, you would probably do injustice to the other ninety-nine." Mar- 
 tin, B. : "There would be great danger that the prisoner would be 
 tried on the evidence of character, instead of on that bearing more 
 directly upon the offense charged."^ 
 
 TURNER'S TRIAL (1817). 
 
 ^2 How. St. Tr. 100^. 
 
 High treason. Mr. Cross (for the defense) : "What has been his 
 general character as far as you have known him?" Mr. Gurney (op- 
 posing) : "I submit to your lordships that the proper question 
 ^* is as to loyalty." Mr. Denman (for the defense) : "If he is gen- 
 erally a respectable man, an inference arises that he is a loyal man." 
 Mr. Gurney: "If a man is indicted for felony, evidence is produced 
 to his honesty ; if for rape, to his chastity ; and so on." Abbott, J. : 
 "As far as my experience goes, the inquiry into character is always 
 adapted to the charge." Mr. Denman: "... A man who had con- 
 ducted himself peaceably and respectably was not likely to enter into 
 
 1 — Compare the authorities cited in W., 2 — Compare the authorities cited in W., 
 
 § 56. § 57- 
 
No. 26. CHARACTER, AS EVIDENCE. 29 
 
 wild schemes." Abbott, J.: "The question was objected to as too gen- 
 eral and therefore not applicable; it was not whether he was a peace- 
 able man, but as to his general character."* 
 
 THOMPSON V. CHURCH (1791). 
 
 I Root 31^. 
 
 Qui tarn for an assault; the defendant's character as a malicious, 
 
 quarrelsome man was rejected. Per Curiam: "The general character 
 
 is not in issue. The business of the court is to try the case, and 
 
 not the man; and a very bad man may have a very righteous 
 
 cause." 
 
 HEIN V. HOLDRIDGE (1900). 
 
 78 Minn. 468, 81 N. W. 522. 
 
 Start, C. J. : "This is an action by a father for the alleged seduc- 
 tion of his daughter by the defendant. . . . Did the trial court err in 
 excluding evidence ofifered by the defendant to show that his 
 general reputation for chastity was good? . . . The charge 
 against the defendant involved the commission of a crime by him, and 
 if this were a criminal case, it is certain that the excluded evidence 
 would have been admissible. The accused in a criminal case, whether 
 the charge be a felony or misdemeanor, may always prove his pre- 
 vious good character, of which his general reputation is evidence, as 
 tending to disprove the commission of the offense; that is, as tending 
 to show the improbability of a person of his previous character com- 
 mitting the act charged. . . . There would seem to be no logical rea- 
 son why the same rule should not apply to civil actions in which the 
 defendant is charged with a crime. But the accepted general rule is 
 that evidence of the general character of parties to civil actions, where 
 character is not a part of the issue, is inadmissible. The rule 
 seems to be one of practical convenience, for the purpose of avoiding 
 the confusion of issues. On principle, however, it would seem that 
 there ought to be exceptions to this general rule. . . . Inasmuch as the 
 general rule is not based upon any philosophical reason, but is merely 
 one of convenience, it ought not to be applied to cases where justice 
 to the defendant requires that the inconvenience arising from a con- 
 fusion of the issues should be disregarded, and he be permitted to give 
 evidence of his previous good character, or, in other words, that such 
 evidence ought to be received in a civil action when it is of a char- 
 acter to bring it within all of the reasons for admitting such evidence 
 in criminal cases. Civil actions for an indecent assault, for seduc- 
 tion, and kindred cases, are of this character; for such cases are not 
 infrequently mere speculative and blackmailing schemes. The conse- 
 
 3— Compare the authorities cited in W., I 39. 
 
30 CIRCUMSTANTIAL EVIDENCE. No. 26. 
 
 quences to the defendant of a verdict against him in such a case are 
 most serious, for the issue as to him involves his fortune, his honor, 
 his family. From the very nature of the charge, it often happens that 
 an innocent man can only meet the issue by a denial of the charge, 
 and proof of his previous good character. Ought a defendant in such 
 a case to be deprived of the right to lay before the jury evidence of his 
 previous good character, because it will tend to confuse the issue, while 
 a defendant in a case where the State charges him with a simple as- 
 sault, involving no more serious consequences than the payment, per- 
 haps, of a fine of five dollars, is accorded the absolute right to give 
 such evidence? . . . [But the doctrine] ought not to be extended to 
 civil actions where the issue relates to a simple assault, or to the fraud, 
 deceit, or negligence of the defendant, or to similar actions, for they 
 are not within the reasons we have suggested for the admission of 
 evidence of good character in exceptional civil actions."* 
 
 TENNEY V. TUTTLE (1861). 
 
 I All. 185. 
 
 Tort for an injury received from a collision of carriages in the high- 
 way. At the trial in the superior court the plaintiffs offered evidence 
 tending to prove, that the defendant left his horses, harnessed to 
 a wagon, standing on his own land within about fifteen feet of his 
 house and within the enclosure adjoining the same, without being tied, 
 or under the charge of any person; and went into the house, out of 
 sight of the horses, to give directions to the workmen employed 
 therein; and that the horses started and ran into the road and against 
 the wagon in which the plaintiffs were riding, and thereby injured 
 the female plaintiff. The defendant offered to show his own character 
 as a careful, prudent and cautious man, as bearing on the question of 
 whether he used ordinary care on this occasion. To this last the 
 plaintiffs objected. Metcalf, J. : "... Evidence of the defendant's 
 being a careful, prudent and cautious man was not admissible for the 
 purpose of showing that he used, in this instance, such care of his 
 horses as the law requires in order to exempt him from responsibility 
 for the mischief produced by their escape into the highway. When the 
 precise act or omission of a defendant is proved, the question whether 
 it is actionable negligence is to be decided by the character of that 
 act or omission, and not by the character for care and caution that the 
 defendant may sustain. If such evidence ... is ever admissible in a 
 case like this, we incline to the opinion that it is only when the plain- 
 tiff attempts to prove the defendant's negligence by merely circumstan- 
 tial evidence, or, perhaps, by witnesses shown to be of doubtful ver- 
 acity."' 
 
 4— Compare the authorities cited in W., s— Compare the authorities cited in W., 
 
 5 64. 5 65. 
 
No. 28. CHARACTER, AS EVIDENCE. 31 
 
 STATE V. MANCHESTER & LAWRENCE RAILROAD (1873). 
 
 52 N. H. 528, 532, 549. 
 
 Sargent, C. J.: "Some of the general allegations in the indict- 
 ment are, that, in the town of Salem, there is a certain public high- 
 way, which is properly described; that the track of the defend- 
 ants' railroad crosses said highway at a place called Ballard's 
 crossing, in said Salem, upon the grade or level of said highway; that, 
 on December 17, 1870, the defendants were proprietors of said railroad, 
 and by their servants and agents ran a locomotive steam engine and 
 a train of cars upon said railroad and across said public highway; 
 that Benjamin Woodbury, of said Salem, not being in the employment 
 of said railroad, was then passing along said public highway, at the 
 crossing aforesaid, when the defendants, with said engine and train, 
 suddenly surprised, overtook, struck, threw down, and instantly killed 
 the said Woodbury. . . . The same rules of evidence and the same 
 principles of law should be applied in such cases where the form is 
 criminal, as in like cases where the redress is sought by a civil action 
 for damages. . . . The first question raised by the case is as to the 
 admissibility of the testimony as to the same train, run by the same 
 engineer and fireman, having sometimes passed the same crossing 
 where the accident happened, during the preceding year, without sound- 
 ing the whistle or ringing the bell, as tending to show that the same 
 men would be more likely to have neglected the performance of these 
 duties upon the occasion in question. The regulations required that 
 upon each occasion when this crossing was passed the bell should be 
 rung and the whistle sounded. There was direct evidence on one side 
 that neither of these signals was given upon the occasion of the acci- 
 dent, while there was just as direct evidence upon the other side that 
 both these signals were properly given. Here was a direct conflict in 
 the evidence. Which shall the jury believe? ... It would seem to be 
 axiomatic that a man is likely to do or not to do a thing, or to do it or 
 not to do it in a particular way, as he is in the habit of doing or not 
 doing it. But this must be understood of acts which are done or 
 omitted to be done without any particular intent or purpose to injure 
 any one; it cannot apply to acts that are done intentionally, wilfully, 
 or maliciously, because such acts are done with a specific object in 
 view, and they are performed, not by force of habit, but with a definite 
 purpose. . . . But when the question is, did these servants of the road, 
 without any intention whatever and through mere negligence or care- 
 lessness, omit to give these signals on that occasion, we think the in- 
 quiry was properly made as to what they had done before in that 
 regard, and whether they had or had not grown habitually negligent 
 of the requirements of the road in that particular. In this view of the 
 case, we think the evidence was admissible, — not as evidence of char- 
 acter, not as evidence of fitness or unfitness, but simply as having some 
 
32 CIRCUMSTANTIAL EVIDENCE. No. 29. 
 
 tendency to show that on this particular occasion these agents were 
 more probably negligent and careless because they had before fre- 
 quently neglected the same duty with impunity and had thus become 
 habitually negligent in that regard."* 
 
 SCOTT V. SAMPSON (1882). 
 L. R. 8 Q. B. D. 4pi. 
 
 The statement of claim alleged that plaintiff was a dramatic critic 
 engaged in that capacity in connection with The Daily Telegraph news- 
 paper, and the proprietor of a monthly magazine called The 
 " Theatre; that defendant was the proprietor and publisher of a 
 weekly paper called The Referee; that defendant published of the plain- 
 tiff in his occupation of a journalist and dramatic critic in The Referee 
 the words following (setting out an article extracted from the paper), 
 meaning that the plaintiff had obtained from Admiral Carr Glyn £500 
 under a threat of publishing facts injurious to the memory of Miss 
 Neilson (an actress), and systematically abused his position as a 
 dramatic critic and a journalist for the purpose of extorting money. 
 The fourth paragraph of the statement of defense stated that the alle- 
 gations in the article were true in substance and in fact. Reply join- 
 ing issue. Verdict for the plaintiff, damages £1,500. A rule was ob- 
 tained calling on the plaintiff to show cause why the verdict should 
 not be set aside, and a new trial had, on the ground that the learned 
 judge at the trial improperly refused to receive evidence relating to 
 the character of the plaintiff. 
 
 Cave, J. : "Speaking generally, the law recognizes in every man a 
 right to have the estimation in which he stands in the opinion of 
 others unaffected by false statements to his discredit, and if such false 
 statements are made without lawful excuse, and damage results to the 
 person of whom they are made, he has a right of action. The dam- 
 age, however, which he has sustained must depend almost entirely on 
 the estimation in which he was previously held. He complains of an 
 injury to his reputation, and seeks to recover damages for that injury; 
 and it seems most material that the jury who have to award those dam- 
 ages should know, if the fact is so, that he is a man of no reputation. 
 'To deny this would,' as is observed in Starkie on Evidence, 'be to 
 decide that a man of the worst character is entitled to the same meas- 
 ure of damages with one of unsullied and unblemished reputation. A 
 reputed thief would be placed on the same footing with the most hon- 
 orable merchant, a virtuous woman with the most abandoned prosti- 
 tute. To enable the jury to estimate the probable quantity of injury 
 sustained, a knowledge of the party's previous character is not only 
 material but seems to be absolutely essential.' It is said that the ad- 
 
 6 — Compare the authorities cited in W., § 92. 
 
No. 30. SUNDRY EVIDENCE, TO PROVE A HUMAN ACT. 33 
 
 mission of such evidence will be a hardship upon ' the plaintiff, who 
 may not be prepared to rebut it; and under the former practice, where 
 the damages could not be pleaded to, a^nd general evidence of bad 
 character was allowed to be given under a plea of not guilty, there 
 was something in this objection, which, however, is removed under the 
 present system of pleading, which requires that all material facts shall 
 be pleaded ; and a plaintiff who has notice that general evidence of bad 
 character will be adduced against him, can have no diflficuky what- 
 ever, if he is a man of good character, in coming prepared with friends 
 ■who have known him to prove that his reputation has been good. On 
 principle, therefore, it would seem that general evidence of reputation 
 should be admitted, and on turning to the authorities previously cited 
 it will be found that it has been admitted in a great majority of those 
 cases, and that its admission has been approved by a great majority 
 of the judges who have expressed an opinion on the subject."^ 
 
 Topic B: Other Kinds of Evidence. 
 
 PEOPLE V. ARNOLD (i860). 
 
 15 Cal. 476, 481. 
 
 The defendant was indicted and tried for feloniously killing one 
 John M. Sweeney. His plea was that the homicide was in self-defense. 
 On the trial, one Lawrence Morris testified that he was present 
 ■**" on the twenty-fourth of August, 1859, at a difficulty that then 
 occurred between this defendant and Sweeney, in the course of which 
 the defendant discharged a double-barreled shotgun at Sweeney; he 
 then says the pistol that he saw lying on the ground after Sweeney 
 fell, Sweeney borrowed from Mr. Cordes, some time before the twen- 
 ty-fourth of August, 1859; that Cordes had, in the presence of wit- 
 nesses, given the pistol to Sweeney, who said he would clean it. The 
 defendant's counsel then asked this witness the following question: 
 "At the time Cordes gave the pistol to Sweeney, was anything said 
 by Sweeney with reference to using the pistol against the defendant. 
 Philander Arnold?" To this question the counsel for the people ob- 
 jected, on the ground that it was irrelevant and incompetent. The 
 Court decided that the testimony was inadmissible, unless evidence was 
 produced tending to show that the thing said had come to the knowl- 
 edge of the defendant, and sustained the objection; to which decision 
 the defendant excepted. 
 
 Baldwin, J.: "[The defendant urged] that this assault was not 
 made by him, but that it was made by Sweeney [the deceased] ; and 
 to prove this he proposed to show that Sweeney had armed himself 
 with this pistol, that he had borrowed it, and that it was found at the 
 place of the rencounter. He was permitted to show these facts, but he 
 proposed to show a further fact, and that was that, at the time of 
 
 7 — Compare the authorities cited in W., § 70. 
 
34 CIRCUMSTANTIAL EVIDENCE. No. 31. 
 
 Sweeney's getting the pistol, he declared what he meant to do with 
 it. . . . This leads to the inquiry, whether the fact that A procures a 
 weapon for a particular purpose conduces at all to show, in a ques- 
 tion of conflicting proofs as to the manner in which he used it, what 
 that manner was. We apprehend that if a man goes into a house, 
 borrows a gun, goes out with it, saying that he means to use it on 
 another, and a rencounter happens between him and that other, and 
 the witnesses who see the difficulty differ, or the circumstances are 
 equivocal, as to which one of the two commences the affray, that some 
 light might be thrown upon this question, conducing to or towards its 
 solution, by the proof of these facts as to A's procuring it and his 
 motives in doing so. The jury might possibly, with some reason, con- 
 clude that as the weapon was procured for this purpose of assault on 
 another, that purpose was fulfilled; that the assault, in other words, 
 was made in pursuance of the intended purpose when the weapon was 
 procured, and especially if other facts in corroboration of this conclu- 
 sion existed. It is true there would be nothing conclusive in this. But 
 the fact of the conclusiveness of this proof to establish the proposition 
 which it is introduced to prove is not the decisive question; that ques- 
 tion is, whether this item of fact be a matter proper to be considered 
 by the jury in arriving at their conclusion upon this mooted point. 
 And we have no doubt that it is."* 
 
 COMMONWEALTH v. WEBSTER (1850). 
 
 5 Cush. 2p5, 318, Bemis' Rep. 469 (1850). 
 
 The facts of this case are stated ante, in No. 17. Several wit- 
 nesses, called for the defence, testified that they saw Dr. Park- 
 man at various places in Boston, at different times between 
 "■^ the hours of a quarter before two and five, in the afternoon 
 of the 23d of November. The attorney-general, in rebutting the 
 evidence for the defendant, proposed to call witnesses to show that there 
 was a person about the streets of Boston, at the time of Dr. Parkman's 
 disappearance, who bore a strong resemblance to him, in form, gait, and 
 manner; so strong that he was approached and spoken to, as Dr. Park- 
 man, by persons well acquainted with the latter. The Court excluded the 
 evidence. Shaw, C. J. : "When a fact has occurred, with a series of cir- 
 cumstances preceding, accompanying, and following it, we know that 
 these must all have been once consistent with each other; otherwise 
 the fact would not have been possible. Therefore, if any one fact 
 necessary to the conclusion is wholly inconsistent with the hypothesis 
 of the guilt of the accused, it breaks the chain of circumstantial evi- 
 dence, upon which the inference depends; and, however plausible or 
 apparently conclusive the other circumstances may be, the charge must 
 fail. Of this character is the defense usually called an cdibi; that is, 
 
 8— Compare the authorities cited in W., 5 'oS- 
 
No. 31. SUNDRY EVIDENCE, TO PROVE A HUMAN ACT. 35 
 
 that the accused was elsewhere at the time the offense is alleged to have 
 been committed. If this is true, it being impossible that the accused 
 could be in two places at the same time, it is a fact inconsistent with 
 that sought to be proved, and excludes its possibility. . . . We now come 
 to consider that ground of defence on the part of the defendant which 
 has been denominated, not perhaps with precise legal accuracy, an alibi; 
 that is, that the deceased was seen elsewhere out of the medical college 
 after the time, when, by the theory of the proof on the part of the 
 prosecution, he is supposed to have lost his life at the medical college. 
 It is like the case of an alibi in this respect, that it proposes to prove a 
 fact which is repugnant to and inconsistent with the facts constituting 
 the evidence on the other side, so as to control the conclusion, or at 
 least render it doubtful, and thus lay the ground of an acquittal. And 
 the court are of opinion that this proof is material."' 
 
 REGINA V. EXALL (1866). 
 4 F. & F. 922. 
 
 Burglary. On the night of the 21st of December, the premises were 
 broken open, and some time after eleven that night, the money and articles 
 mentioned stolen. The prisoners were seen together on that 
 night at a public-house not far off, and they were seen together 
 early in the morning. In the morning, two of them, Edwards and 
 Exall, were apprehended together on suspicion; and on one of them, 
 Exall, the watch was found. The other prisoner, Skelton, was taken 
 some time afterwards, and upon him was found a piece of money, 
 identified as part of the money stolen, and which he said he had from 
 Edwards, which Edwards did not deny. Pollock, C. B., to the jury: 
 "The principle is this, that if a person is found in possession of prop- 
 erty recently stolen, and of which he can give no reasonable account, 
 a jury are justified in coming to the conclusion that he committed the 
 robbery. And so it is of any crime to which the robbery was incident, 
 or with which it was connected, as burglary, arson, or murder. For, 
 if the possession be evidence that the person committed the robbery, 
 and the person who committed the robbery committed the other crime, 
 then it is evidence that the person in whose possession the property is 
 found committed that other crime. 
 
 "The law is that if, recently after the commission of the crime, a 
 person is found in possession of the stolen goods, that person is called 
 upon to account for the possession, — that is, to give an explanation 
 of it which is not unreasonable or improbable. The strength of the 
 presumption which arises from such possession is in proportion to the 
 shortness of the interval which has elapsed. If the interval has been 
 only an hour or two, not half a day, the presumption is so strong 
 that it almost amounts to proof, because the reasonable inference is 
 
 9 — Compare the authorities cited in W., §§ 136-139. 
 
36 CIRCUMSTANTIAL EVIDENCE. MO. ^4. 
 
 that the person must have stolen the property; in the ordinary affairs 
 of life, it is not probable that the person could have got possession of 
 the property in any other way. . . . Such evidence is, no doubt, not 
 conclusive. As an illustration of this, I may mention that I remember 
 hearing the late Baron Gurney say that he once picked up something 
 lying in the road and observed, 'Now if this has been stolen and I am 
 found with it, I might be charged with the robbery.' The other cir- 
 cumstances in the case, however, will always aid or rebut the pre- 
 sumption, and it is not the less evidence because it is not conclusive 
 evidence. It is some evidence, if its weight depends upon the circum- 
 stances, and especially on the nature of the possession, whether it is 
 open and avowed or secret and concealed, and what is the nature of the 
 account given of it. What the jury have to consider in each case is, 
 what is the fair inference to be drawn from all the circumstances be- 
 fore them, and whether they believe the account given by the prisoner 
 is under the circumstances reasonable and probable or otherwise."^" 
 
 SUB-TITLE II: 
 
 EVIDENCE TO PROVE A HUMAN QUALITY OR 
 CONDITION. 
 
 Topic A: Conduct, to Evidence Character. 
 
 HARRISON'S TRIAL (1692). 
 
 72 How. St. Tr. 833, 864. 
 
 Murder; the crier called Mr. Bishop, who was sworn for the pros- 
 ecution. Bishop: "About three years ago the prisoner came to my 
 
 master's shop to cheapen some linen; and when — " 
 "'' Holt, L. C. J.: "Hold, hold, what are you doing now? Are 
 you going to arraign his whole life? How can he defend himself from 
 charges of which he has no notice? And how many issues are to be 
 raised to perplex me and the jury? Away, away! That ought not to 
 be; that is nothing to the matter." 
 
 ALEXANDER DAVISON'S TRIAL (1808). 
 31 How. St. Tr. 187. 
 
 Fraud in public accounts by a former commissary-general. Lord 
 Moira (formerly general-in-command) sworn for the defense: "I 
 never had the remotest ground for suspicion [against the ac- 
 °^ cused]. . . . Shall I state the particulars?" L. C. J. Ellen- 
 borough: "One is very unwilling to diminish the scope of these in- 
 to— Compare the authorities cited in W., §§ 152, 153. 
 
No. 35. CONDUCT, TO EVIDENCE CHARACTER. 37 
 
 quiries, but the general inquiry is as to the general character.'' John 
 Martin Leake sworn; examined by Mr. Holroyd: "I believe you are 
 one of the comptrollers of the army accounts?" "I am.'' "In that 
 character have you at any time had Mr. Davison's accounts before 
 you?" "Yes." "Have those been examined by you?" L. C. J. Ellen- 
 borough : "I really must interfere. It would be dangerous as a prece- 
 dent to permit particular instances to be given in evidence where there 
 can have been no notice. General evidence of general character is 
 admissible; but this is certainly contrary to all rule." Mr. Holroyd: 
 "1 ask this question to show Mr. Leake's means of knowledge." L. C. J. 
 Ellenborough : "You ask as to his knowledge of the examination of 
 public accounts. Now would it be proper to try a collateral issue for 
 which the other side cannot be prepared? It is as clear a rule of evi- 
 dence as can be that you must not examine to particular facts." . . . 
 Mr. Holroyd: "I ask this only as introductory of general character.'' 
 L. C. J. Ellenborough : "If you mean only to ask whether the wit- 
 ness has had such means of knowing him as to form the judgment 
 he is about to give, I have no objection to that." Mr. Holroyd: "Had 
 you opportunities, from examining Mr. Davison's accounts, of knowing 
 his general character?" "I have seen many of his accounts, and many 
 of them were extremely regular; in the years 1794, 1795, and 1796, 
 they were before the comptrollers." L. C. J. Ellenborough : "I cannot 
 admit this; you must go into general character.''^^ 
 
 R. v. ODDY (1851). 
 2 Den. Cr. C. 264. 
 
 Indictment with counts for breaking and stealing, for larceny, and 
 for knowing receipt of stolen goods; after evidence of the acts as 
 charged, on the dates of March 7 and 10, 185 1, the counsel for 
 the prosecution proposed further to prove, that the defendant's 
 house had been searched within an hour after the property named in 
 the indictment was found in his possession, and that upon this search, 
 two other pieces of cloth were found in the house; and also that on 
 the 13th of December, 1850, the defendant had been in possession of 
 two more pieces of cloth, and that these four pieces of cloth had been 
 stolen in the night between the 4th and 5th of December, 1850, from 
 another mill, and were the property of different owners, no one of 
 whom was connected with the owner of the cloth mentioned in the 
 indictment. The counsel for the defendant objected to the reception 
 of this evidence. It was held inadmissible on any of the counts. 
 
 Campbell, L. C. J.: "The moral weight of such evidence in any 
 individual case would no doubt be great. But the law is a system of 
 general rules; and it does not admit such evidence, because of the in- 
 convenience which would result from it." Mr. Pickering, for the pros- 
 
 II — Compare the authorities cited in W., §§ 192-194. 
 
38 CIRCUMSTANTIAL EVIDENCE. No. 35, 
 
 ecution : "But in several analogous cases the law does admit such evi- 
 dence, notwithstanding the inconvenience; and there the inconvenience, 
 which is confessedly the only ground of exclusion, is tolerated in order 
 that justice may not be defeated. The inconvenience is put upon two 
 grounds ; first, that of the prisoner being taken by surprise ; secondly, 
 of many different issues being raised." Campbell, L. C. J. : "Yes ; that 
 is so." Mr. Pickering: "If in such cases [as previous utterings of 
 forgeries to show intent] justice is not permitted to be defeated by the 
 argument drawn from the inconvenience of raising different issues, why 
 should it in the present case?" Campbell, L. C. J.: "It would have 
 been evidence of the prisoner being a bad man, and likely to commit 
 the offenses there charged. But the English law does not permit the 
 issue of criminal trials to depend on this species of evidence."^^ 
 
 PEOPLE v. SHAY (1895). 
 
 147 N. Y. 78, 41 N. E. S08. 
 
 Peckham, J.: "Two antagonistic m.ethods for the judicial investi- 
 gation of crime and the conduct of criminal trials have existed for 
 many years. One of these methods favors this kind of evidence 
 in order that the tribunal which is engaged in the trial of the 
 accused may have the benefit of the light to be derived from a record 
 of the whole past life of the accused, his tendencies, his nature, his 
 associates, his practices, and, in fine, all the facts which go to make 
 up the life of a human being. This is the method which is pursued in 
 France, and it is claimed that entire justice is more apt to be done 
 where such course is pursued than where it is omitted. The common 
 law of England, however, has adopted another, and, so far as the 
 party accused is concerned, a much more merciful doctrine. ... In 
 order to prove his guilt, it is not permitted to show his former char- 
 acter, or to prove his guilt of other crimes, merely for the purpose 
 of raising a presumption that he who would commit them would be 
 more apt to commit the crime in question.'' 
 
 CLARKE V. PERI AM (1742). 
 
 2 Atk. 337. 
 
 Hardwicke, L. C. : "The original bill is brought to have satisfac- 
 tion out of the personal estate of the late Mr. Periam, for the bond. 
 The cross bill is brought by the widow of Mr. Periam, and is 
 to be relieved against this bond, and to have it cancelled; and 
 the equity is founded upon this, that it was given by Mr. Periam to 
 Mrs. Clark, ex turpi causa, and that she was a lewd woman of an 
 infamous character, and therefore it is insisted the court should relieve 
 against it. 
 
 12 — Compare the doctrine of Nos. 44-48, post. 
 
No. 38. CONDUCT, TO EVIDENCE CHARACTER. 39 
 
 "The counsel insist . . . that the plaintiff is not entitled to examine 
 to anything^ but her character in general, because it is impossible for 
 Mrs. C. to be prepared to give an answer to the particular facts 
 charged; for though everybody is supposed to be ready, to support a 
 general character, yet not a particular fact. ... As to the reason of the 
 thing: In criminal prosecutions it comes in only collaterally and inci- 
 dentally and is not the particular thing to be tried; and when that is 
 the case, they are not supposed to be prepared with evidence. But 
 compare this with cases where the character is the particular issue to 
 be tried; suppose in the case of an indictment for keeping a common 
 bawdy-house, without charging any particular fact; though the charge 
 is general, yet at the trial you may give in evidence particular facts 
 and the particular time of doing them; the same rule as to keeping a 
 common gaming-house. This is the practice in all cases where the 
 general behavior or quality or circumstance of the mind is in issue; 
 as for instance, in non compos mentis, it is the experience of every 
 day, that you give particular acts of madness in evidence, and not 
 general only, that he is insane; so where you charge that a man is 
 addicted to drinking, and liable to be imposed upon, you are not con- 
 fined in general to his being a drunkard, but particular instances are 
 allowed to be given. . . . Wherever the general life or conversation is 
 put in issue, it is notice to the person who is charged that she should 
 be prepared to take off the weight of that evidence ; but where it comes 
 in collaterally you shall be confined to general evidence. This seems 
 to me to be the distinction, and the grounds of it; and if I was of a 
 different opinion, I should overturn the constant course of this Court 
 and make the greatest confusion."^^ 
 
 UNITED STATES v. HOLMES (1858). 
 
 I Cliff. p8, 108, 26 Fed. Cos. 34P, 352. 
 
 Murder by a ship-master on the high seas ; the defense was that the 
 accused was insane. Clifford, J. : "Inquiries were made of this wit- 
 ness, in his examination in chief, not only as to the acts, conduct, 
 and declarations of the prisoner during the attacks, but on other 
 occasions throughout the voyage. In the course of the cross-examina- 
 tion he was asked whether any difficulty occurred during the voyage 
 between the prisoner and the mate. That question was objected to by 
 the counsel for the prisoner, and was admitted by the court. Various 
 acts, conduct, and declarations of the prisoner, during those difficulties, 
 were stated by the witness in answer to the questions propounded by 
 the district attorney. It is insisted by the counsel for the prisoner that the 
 question objected to should have been ruled out, and that all the testi- 
 mony of this witness, so far as respects the acts, conduct, and declara- 
 tions of the prisoner during these difficulties, was improperly admitted. 
 
 J3^Compare the authorities cited in W., §§ 202-207. 
 
40 CIRCUMSTANTIAL EVIDENCE. No. 38. 
 
 (i) They contend that the effect of the rulings was to allow the gov- 
 ernment to establish the offence charged against the prisoner, by prov- 
 ing that he had committed other acts of violence of a like kind. (2) 
 In the second place, they insist that the rulings authorized an illegal 
 attack upon the character of the prisoner, when, in fact, and in truth, 
 he had offered no evidence putting his character in issue. (3) And 
 lastly, they contend that the evidence was a surprise upon the prisoner, 
 who could not be expected to come to trial on the charge in the indict- 
 ment, prepared to defend his whole life. All the answer that need be 
 given to the first proposition is, to state that the theory of fact on 
 which it is based is not correct, and to refer to what has already ap- 
 peared in verification of the statement. It is a mistake to suppose that 
 the evidence in question, or any part of it, was admitted, or even 
 offered as having any bearing whatever upon the question whether the 
 prisoner was the guilty agent who committed the act of homicide 
 charged in the indictment. On the part of the prisoner many wit- 
 nesses had been called and examined, and his acts, conduct and declara- 
 tions, not only throughout this voyage, but throughout his whole life, 
 from early youth to the time of his arrest, had been introduced into 
 the case. His counsel, in offering his acts, conduct and declarations, 
 accordingly selected, as was very properly admitted at the argument, 
 the dark spots in his life, or those most peculiar and least in accord- 
 ance with the ordinary conduct of men, as best suited to support the 
 defence set up by the prisoner in this case. All of the testimony ob- 
 jected to, and now under consideration, was admitted in reply to that 
 which had previously been introduced by the prisoner to support that 
 ground of defence. 
 
 ". . . Beyond doubt the precise question to be tried in all such cases 
 is whether the accused was insane at the time he committed the act, 
 and to that point all the evidence must tend. Great difficulties sur- 
 round the inquiry, and it is for that reason that the rules of law allow 
 a wide range of testimony in the investigation. . . . One of the sug- 
 gestions . . . was that the government, in attempting to rebut the tes- 
 timony offered by the prisoner on this point [of insanity] should have 
 been limited to the explanation or denial of the particular transactions, 
 acts, conduct, and declarations introduced by the prisoner to make out 
 his defense. . . . [It] cannot be sustained. Most men in the course 
 of their lives, in times of excitement produced by disease or otherwise, 
 do many strange and peculiar acts, and oftentimes give utterance to 
 eccentric or unusual language; and it is obvious that if a person ac- 
 cused of crime may select and offer in evidence all the dark spots of 
 his life, or every peculiar and unusual act and declaration, and be 
 allowed to exclude all the rest, that many guilty offenders must escape 
 and justice be often defeated, because the means of ascertaining the 
 truth are excluded from the jury. . . . [Whenever the accused has 
 offered his acts, conduct, and declarations before and after the homi- 
 
No. 39. CONDUCT, TO EVIDENCE CHARACTER. 41 
 
 cide,] the government may offer evidence of other acts, conduct, and 
 declarations of the accused within the same period to show that he 
 was sane and to rebut the evidence introduced by the defense."^* 
 
 MILLER V. CURTIS (1893). 
 
 1^8 Mass. 12/, iji, S3 N. E. i03p. 
 
 Action of tort for indecent assault and battery upon a married 
 woman; the defendant denied the assault, and offered evidence to show 
 that the claim was only an attempt at blackmail. Knowlton, J. : 
 "The defendant was allowed to introduce evidence of several 
 transactions and conversations with the plaintiff, all occurring more 
 than twenty years ago, which tended to show that she had repeatedly 
 made false charges of indecent assaults upon her, with a view to extort 
 money from innocent men. The defendant denies the charge made 
 against him in the suit, and contends that the plaintiff is trying un- 
 justly to obtain money from him. In any case, where the question is 
 whether the defendant has committed a crime, it would naturally affect 
 the opinion of jurors to know that he had often committed similar 
 crimes; but evidence of such facts is never admitted to prove a de- 
 fendant's guilt. That a person has committed one crime has no direct 
 tendency to show that he committed another similar crime which had 
 no connection with the first; and a person charged with one offence 
 cannot be expected to come to court prepared to meet a charge of 
 another. If the doing of one wrongful act should be deemed evidence 
 to prove the doing of another of a similar character which has no 
 connection with the first, issues would be multiplied indefinitely with- 
 out previous notice to the defendant, and greatly to the distraction of 
 the jury. It is too clear for argument, under the authorities, that most 
 of the evidence excepted to was not competent on the question of 
 liability, and the defendant does not seriously contend that it was. 
 
 "It is argued, however, that it was competent on the question of 
 damages, and the jury were instructed to consider it only on that 
 question. There is much authority for the proposition, that in a suit 
 of this kind, when a plaintiff seeks damages for an injury to her feel- 
 ings, growing out of the indecency of the defendant's conduct, her 
 character in regard to chastity is in issue, and her damages depend 
 somewhat on the question whether she is a virtuous woman, who would 
 be greatly shocked at the peculiar nature of the assault, or a woman 
 who is accustomed to yield herself to illicit intercourse. If it were 
 permissible to show specific acts of criminal intercourse on the part 
 of the plaintiff to affect the damages to be awarded in actions for an 
 indecent assault, it would not follow that the evidence excepted to in 
 the present case should have been admitted. Most, if not all, of this 
 testimony tended to prove, not that the plaintiff had had criminal inter- 
 
 14 — Compare the authorities cited in W., § 228. 
 
42 CIRCUMSTANTIAL EVIDENCE. No. 39. 
 
 course with other men, but that she had falsely pretended that others 
 had indecently assaulted her, with a view to extort money from them. 
 The rule contended for certainly should not be extended so far as to 
 admit testimony of common crimes and ordinary wrongful acts, merely 
 to show general depravity. 
 
 "But we are inclined to hold the evidence incompetent on broader 
 grounds. It is a general rule, which has been adhered to with great 
 strictness in this Commonwealth, that when character is in issue, it may 
 be shown only by evidence of general reputation, and not by proof of spe- 
 cific acts. . . . The principal reason for this rule is that a multiplicity of 
 issues would be raised if special acts, covering perhaps a lifetime, 
 could be shown. It might be necessary to go into the circumstances 
 attending each act before it could be determined what its nature was 
 and what effect should be given it. It would be impossible for the 
 opposing party to come prepared to meet evidence upon matters irj 
 regard to which he had no notice, and great injustice might be done 
 by bearing biased and false testimony to which no answer could be 
 made."i= 
 
 CUNNINGHAM v. RAILROAD CO. (1895). 
 
 88 Tex. 5S4, 31 S. W. 629. 
 
 Denman, J. : Appellant seeks to recover damages for the death of 
 her husband, James Cunningham, a conductor on one of appellee's 
 trains, caused by a wreck occasioned by the breaking of a car 
 wheel on a car running from Llano to Austin on the 22d day of 
 December, 1892. The witness, Rownie, for defendant, testified that he 
 inspected the wheel on the morning of the accident, at Llano. On 
 cross-examination the witness Rownie testified that the reason he said 
 he inspected it on December 22d was because he understood the acci- 
 dent was on that date, and because he inspected that car every day it 
 was in Llano. Counsel for appellant thereupon asked the witness 
 whether he inspected the cars at Llano on the 23d and 27th days of 
 December, 1892, January 6, 1893, February 21, 1893, March 9, 1893, 
 and April 4, 1893, all subsequent to the date of the accident; counsel 
 stating that the object of the question was to prove by Rownie that on 
 said dates he had not inspected the wheels of appellee's trains at 
 Llano ; and, if he stated that he had inspected them on any one or all of 
 the above dates, then to offer witnesses who would testify that he did 
 not inspect them on either of said dates. If there was no issue in this 
 case as to Rownie's competency, we are of the opinion that there would 
 be no causal connection between the negligence of Rownie on days 
 subsequent to the injury and the death of Cunningham. Such subse- 
 quent neglect of duty to inspect cars might raise a moral probability 
 that he failed to inspect the car on the morning of the accident, but 
 
 15 — Compare the authorities cited in W., §§ 210-212. 
 
No. 41. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 43 
 
 such probability alone would not connect such negligence with th« 
 chain of circumstances resulting in the death. In order to prevent 
 ■confusion and surprise in the trial of causes of this character, courts 
 liave, as a general rule, confined the evidence to circumstances tending 
 to establish facts constituting links in the chain of circumstances hav- 
 ing a causal connection with the injury. 
 
 "The pleadings and evidence, however, raise the issue as to Rownie's 
 
 competency as a car inspector which involves, first, his skill; and, 
 
 second, his attentiveness to duty. -Jf hewaslacki ng in ei ther nf thpne 
 
 oualities. he £ Quld not h £- said t e— be co m p eten t tr> ^prfn^m *^f iy - 
 
 p orfant duties required of him.. It is a matter of common knowledge 
 
 fiiat some persons are by nature inattentive or thoughtless, and, as a 
 
 y result thereof, frequently neglect the performance of important duties, 
 
 -without any intention so to do. This mental quality can only be evi- 
 
 aenced by the outward acts of the person, and, where its existence or 
 
 non-existence is in issue, evidence of such acts is admissible. JS. 
 
 Rownie w as an inattentive or thoughtless person, such mental qualit y 
 
 -was a re levant fact upon the i ssue as to whether he probablv inspected 
 
 the cars_on_the particular morning nf the- amudoat . . . Thus it seems 
 
 Sthat frequent failures to perform this duty at different times would 
 
 , "be competent evidence tending to prove this mental condition, and we 
 
 Ksee no reason why such omissions subsequent to the time of the acci- 
 
 [ 3fent would be less competent than similar omissions prior to the time 
 
 J of the accident. /The^ question Viprc ia flip pvUtp-nre- nr nnn-pvistpripp 
 
 o f a mental conditinn or qualit y _of the se rjv ant; ina ttentiveness or _ 
 S^hnuyhtl gssness, rendering h irn_jnco mpetent. such incomp etency bein^:_ 
 
 g^recFevid fnrp o n the m ain is su e i n t h e r a se. W^ fp^ "''' rpagpri vi^hy 
 
 »>.sp ecific acts cannot be given in evidence up o n such issu e , just as they 
 
 'VrnilHjijTnri f)ip JQgnp nf tpQtampntary nr rntifrcjH-nglj-apanijy^lie 
 
 Topic B: Conduct, to Evidence Other Qqalities than Moral 
 Character (Knowledge, Plan, Intent, Motive, Etc.) 
 
 CHICAGO V. POWERS (1866). 
 
 42 III. i6p, 173. 
 
 Walker, C. J.: "This was an action on the case brought by Mar- 
 garet Powers, administratrix of Mary Powers, deceased, against the 
 city of Chicago, in the Cook Circuit Court. The action was 
 brought to recover damages claimed to have accrued from negli- 
 gence of the city, which produced the death of intestate. It appears 
 "that the city, on the i8th of October, 1865, and prior thereto, main- 
 tained a bridge, with its appurtenances, across the Chicago river, con- 
 necting north and south Clark street; that the bridge is so constructed 
 
 16 — Compare the authorities cited in W., § 208, and the doctrine of No. 42, post. 
 
44 CIRCUMSTANTIAL EVIDENCE. No. 41. 
 
 as to swing on its center, so as to permit the passage of vessels navi- 
 gating the river; that on the night of the i8th of October, 1865, 
 deceased, in attempting to pass over the bridge, while near the north 
 approach, the bridge being on the swing, stepped or fell through the 
 opening into the river and was drowned. It is claimed by appellee 
 that the night was dark, and that the lights on the bridge, which had 
 been furnished by appellant were insufficient. It is insisted that the 
 court erred in admitting evidence that another person had fallen 
 through the same bridge. If this evidence was admissible for any 
 purpose, then it was not error. \ T he^ action was based upon th e negli- 
 gence of the city i n failing t o keep the brid ge prope rly lighted;__If 
 anotherperso n had met with a s imjliir ffl<^e, at thp camp place, and 
 fr om a like cause, it would tend to show a knowledge on th e part of 
 tEe city, tha t there wa s inattention _on__the_part of their ag^'tits hovin^ 
 charge of the bridg e, and that they had failed to pro vide further means 
 •v for the protectio n of persons cros sing on t hejjrirlgp /^a it tpnHp^l tn 
 prove this fact, it was admissible."^^ 
 
 BAULEC v. RAILROAD CO. (1874). 
 
 5P N. Y. 356, 358. 
 
 This action was brought to recover damages for the alleged negli- 
 gent causing the death of Thomas Hammond, plaintiff's intestate. 
 Hammond was, at the time of his death, in the employ of 
 defendant as a fireman upon a locomotive running upon its road. 
 The accident occurred at a junction of defendant's road 
 with the New York and New Haven road, and, as the evidence tended 
 to show, was occasioned by the negligence of defendant's switchman 
 at that point, one McGerty, who, after the passage of the New Haven 
 train, changed the signal so that it indicated that the switch was right 
 for the Harlem train without changing the switch. Plaintiff offered 
 evidence upon the trial that some six or seven months before this 
 accident a New Haven freight train met with a similar accident at this 
 same switch. Allen, J. : " When as here the general fitness and cap a- 
 city of a servant is invol ved, th e prior acts and conduct of s uch servant 
 on specitic occ ^ions may be given i n evidence._with pro of that th e 
 principal had knowledge of such acts. The cases in which evidence 
 oT other acts of misconduct or neglect of servants or employes, whose 
 acts and omissions of duty are the subject of investigation, have been 
 
 17 — Knowhon, J., in Cliase v. Lowell, likely to discover it in the first instance 
 
 151 Mass, 422, 426, 24 N. E. 212 (1S91): with their own eyes, but quite as much 
 
 "The fact that it [the highway-defect] was from the probability that their attention 
 
 generally talked about in the community is would have been brought by others to a 
 
 a circumstance which may properly be con- matter which was generally talked about 
 
 sidered. In such a case, notoriety derives and in which they wer"B interested." 
 
 its force as evidence, not merely from its Compare the authorities cited in W., 
 
 suggestion that the defect was of such a §§ 24s, 252; and the doctrine of Nos. S3-SS. 
 
 kind that the authorities would have been post. 
 
No. 43, CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 45 
 
 held incompetent, have been those in which it has been sought to prove 
 a culpable neglect of duty on a particular occasion, by showing similar 
 acts of negligence on other occasions. This class of cases does not 
 bear upon the case in hand, and may be laid out of view. 
 
 "When character, as distinguished from reputation, is the subject of 
 investigation, specific acts tend to exhibit and bring to light the pecu- 
 liar qualities of the man, and indicate his adaptation or want of adap- 
 tation to any position, or fitness or unfitness for a particular duty or 
 trust. It is by many or by a series of acts . . . that the actual quali- 
 ties, the true characteristics of individuals, those qualities and charac- 
 teristics which would or should influence and control in the selection 
 of agents for positions of trust and responsibility, are known. .~J. [But 
 only a single instance of carelessness in eight years' service was here 
 shown.] I A single act of casual neglect does not per se tend to prove 
 the party to be careless and imprudent and unfitted for a position re- 
 quiring care and prudence . I Character is formed and qualities ^ ?chi^ 
 ited by a series of acts and no t by a single act. I An engineer might. 
 'iiora inattention omit to sound the whistle or ring the bell at a rail- 
 ^road crossing; but such fact would not tend to prove him a careless^ 
 and negligent servant of the company. . . . The question in this case) 
 was whether the single occurrence detailed by the witness, in connec-| 
 tion with other circumstances and with his general character and con-j 
 duct, was such as to make it necessary for the defendant, in the exer-J 
 
 i" cise of proper care and prudence such as the law enjoins, to dischargej 
 this switchman. I am clearly of opinion that there was not sufficie nt 
 evidence to go to the iury."^° 
 
 REGINA V. COOPER (1849). 
 
 S Cox Cr. C. 547. 
 
 The prisoner was indicted for feloniously accusing one H. C. S. of 
 
 having assaulted him with intent to commit b y, with intent to 
 
 extort money. There were other counts for accusing the said 
 H. C. S. of having attempted and having solicited him to commit 
 the said crime. It appeared in evidence that on the night in question 
 the prosecutor was taking shelter from the rain under one of the 
 porticoes of Buckingham Palace, when he was accosted by the pris- 
 oner, who was the sentry on duty there. After some conversation the 
 prisoner seized the prosecutor by the collar, and charged him' with 
 having indecently touched or assaulted him ; he then took the prosecutor 
 to the guard-house, and said to the Serjeant, "I charge this man with 
 indecently asaulting me." The prosecutor was then taken to the police 
 station-house, where the prisoner made the same charge. A bill of 
 indictment was presented at the next Middlesex Sessions against the 
 
 18 — Compare the authorities cited in W., §§ 249-250. 
 
46 CIRCUMSTANTIAL EVIDENCE. No. 43. 
 
 prosecutor for indecently assaulting Samuel Cooper, but it was ignored 
 by the grand jury. Cooper, the then prosecutor, not appearing. 
 
 In the course of the trial, Bodkin (with whom was Richards, for the 
 prosecution), asked one of the witnesses for the prosecution whether 
 he had ever, upon former occasions when the prisoner had come off 
 guard, seen money in his possession. 
 
 Ballantine (for the prisoner), submitted that such a question 
 could not be put. It had no relevancy to the present inquiry. On 
 such a charge no evidence of other transactions could be adduced, 
 because its only tendency could be to prejudice the minds of the jury — 
 to ask them to judge from past conduct what was likely to have been 
 done by the prisoner on this occasion. 
 
 Bodkin contended that the question was quite regular. Where part 
 of the issue to be tried was the knowledge or the intention of the ac- 
 cused at the time he did a particular act, matters having no immediate 
 bearing on that act become material and relevant, if they in any way 
 tended to explain his motives. Here the prisoner's conduct on other 
 like occasions was very material in enabling the jury to determine with 
 what object this particular proceeding was taken by Jiim. The evidence 
 was admissible in the same way that proof of other utterings was of- 
 fered to show guilty knowledge although they might be totally dis- 
 connected with the one under consideration. 
 
 Cresswell, J.; "Are you not asking the jury to infer guilty knowl- 
 edge from remote and independent facts? Suppose a man was charged 
 with wounding with intent — the intention there is of the essence of 
 the charge — could you prove that he had cut a man's head open the 
 week before?" 
 
 Bodkin submitted that he could, if both wounds were given with 
 the same instrument. 
 
 Cresswell, J. : "How would that show the intention otherwise than 
 by showing knowledge?" 
 
 Bodkin: "Just as the possession of other counterfeit coin may be 
 proved in an indictment for uttering." 
 
 Cresswell, J.: "There knowledge, and not intention, is the subject 
 of the proof. But suppose the witness gives an affirmative answer to 
 your question, what is your next step?" 
 
 Bodkin : "1 shall then ask what he said as to the means by which 
 he obtained the money.'' 
 
 Ballantine said that he objected to any such question, on the 
 grounds before urged. 
 
 Cresswell, J.: "But if the prisoner is proved to have stated on 
 other occasions that he had obtained money by the same means that 
 are stated to have been used in this case, is it not a fair inference to 
 •make to the jury that his object was to obtain money here?" 
 
 Ballantine: "To prove guilty knowledge is not to prove a guilty 
 intention. Proof of a man's previous character would, in the ordinary 
 
No. 43. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 47 
 
 affairs of life, have some bearing upon the question of whether he had 
 committed a particular crime, but it is admissible in law.'' 
 
 Cresswell, J.: "If a man administers a certain drug to another, 
 and it produces death, and afterwards administers the same drug to 
 another person, may not the former conduct be proved to show that 
 lie well knew the consequences of the subsequent act?" 
 
 Ballantine: "Not where it is simply used as evidence to prove 
 intention. The prisoner may have used threats on a previous occasion, 
 and have obtained money by so doing, but that does not show that 
 he had an intention to obtain money at this particular time. The 
 offence here charged is a single and specific one. Suppose the charge 
 "was breaking into a house with intent to steal, the fact of his having 
 broken into the house before would show that he knew how the offence 
 -was to be accomplished, but it could not be adduced to show what his 
 intention was on the second occasion, and this shows the difference be- 
 tween proof of knowledge and that of intehtion. The broad rule that 
 two felonies cannot be proved on the trial of one indictment is clearly 
 recognized, and there is nothing in this instance to show that it should 
 be departed from." 
 
 Cresswell, J. : "I do not think that this is at all a question of 
 character. The evidence is not offered by way of proving simply that 
 the prisoner had been guilty of the same crime before. The question 
 is, whether on this occasion he did not act with the design of effecting 
 a certain object. One step in the proof is to show that he would be 
 likely to know that a certain result would follow, and if it can be 
 proved out of his own mouth that he was aware that such result would 
 be produced, it is one ingredient in the necessary proof that he con- 
 templated it. Suppose a charge against a man that he had attempted 
 to procure abortion : the same medicine might be administered with 
 that intention or without it. If it could be proved that he had often 
 given that medicine before, and that he knew that abortion had always 
 followed, surely that would be evidence against him. Or if, on a 
 charge of wounding, a certain instrument had been used, and the same 
 weapon had before been used by the prisoner with a dangerous result, 
 would not that be admissible to show that he knew the consequences of 
 using it? . . . His whole conduct is to be interpreted with reference to 
 the charge made against him, and I think what was said by him under 
 similar circumstances to the present is admissible." 
 
 Evidence was then given of declarations by the prisoner on a for- 
 mer occasion, on coming off guard, that he had obtained money from a 
 gentleman by threatening to take him to the guard-house and accuse 
 him of an unnatural crime.^' 
 
 19 — 1882, Devens, J., in Com. v. Jackson, ground for inference against him as to 
 
 132 Mass. 18: "It is the knowledge which intent in the matter under examination." 
 
 it may be inferred he must have derived Compare the authorities cited in W., 
 
 from other transactions . . . that mAkes § 352. 
 the evidence admissible as affording just 
 
48 CIRCUMSTANTIAL EVIDENCE. No. 44. 
 
 COLEMAN V. PEOPLE (1873). 
 55 N. Y. 81, 90. 
 
 Indictment for receiving 22 bars of pig-iron, the property of one 
 Burke, knowing them to have been stolen. The fact that pieces of 
 iron railing, stolen from one Briggs, virere also found in the 
 accused's possession, was offered. 
 
 Allen, J.: "The circumstances that boys brought pieces of iron 
 railing to the prisoner's store in the evening, although in his absence, 
 which had been stolen from Briggs, which were afterwards found in 
 the prisoner's possession and taken by Briggs from there, was a cir- 
 cumstance of suspicion as evidence of criminal complicity against him. 
 The general rule is against receiving evidence of another offence. A 
 person cannot be convicted of one offence upon proof that he com- 
 mitted another, however persuasive in a moral point of view such 
 evidence may be. It would be easier to believe a person guilty of one 
 crime if it was known that he had committed another of a similar char- 
 acter, or, indeed, of any character; but the injustice of such a rule in 
 courts of justice is apparent. There are, however, some exceptions to 
 this rule when guilty knowledge is an ingredient of the crime; and 
 the question is, whether this evidence falls within any recognized ex- 
 ception. King V. Dunn & Smith (i M. C. C, 146) is a leading au- 
 thority upon the subject. The report says: 'As all the property had 
 been stolen from the same persons and had all been brought to her 
 by the prisoner, Dunn, the learned judge thought it was admissible 
 and proper to be left to the jury as an ingredient to make out the 
 guilty knowledge.' It is unnecessary to say that all these qualifications 
 must exist; but to warrant the introduction of such evidence there 
 must be such a connection of circumstances as that a natural inference 
 may be drawn, that if the prisoner knew that one article was stolen 
 he would also be chargeable with knowledge that another was. The 
 Briggs iron had no connection with the pig-iron; it was taken from 
 another place, belonged to another person, was of a different character, 
 and received at another time, and, for aught that appears, some of it 
 from different persons. Assuming therefore, that the prisoner received 
 the Briggs iron and was chargeable with knowledge that it had been 
 stolen, would that circumstance logically or legally charge him, or 
 tend to charge him, with knowledge that the pig-iron was also stolen? 
 We think it would be carrying the exception too far, and beyond the 
 authorities to so hold, and would be a dangerous innovation upon the 
 general rule.""'^ 
 
 20 — Ellenhorough, L. C. J., in R, v. against extrinsic facts is not correct. The 
 
 Whyley, 2 Leach, 4th ed. 98s, (1804): indictment alleges that the prisoner uttered 
 
 "The observations respecting prisoners be- this note knowing it to be forged; and 
 
 ing taljen by surprise and coming unpre- they must know that, without the recep- 
 
 pared to answer or defend themselves tion of other evidence than that which the 
 
No. 45. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 49 
 
 BOTTOMLEY v. UNITED STATES (1840). 
 I Story 135, 3 Fed. Cas. grji. 
 
 Information for fraudulent importation of goods, by misrepresent- 
 ing the ownership and the cost of the goods. Story, J. : "In respect to 
 the evidence admitted at the trial, I am clearly of opinion that 
 the whole of it was admissible to substantiate the fraud. It 
 divides itself into four heads: . . . (4) The evidence of the importation 
 of other goods of the same character, cost, and value, as those imported 
 by the claimant in the Roscoe, shipped about the same time with those 
 in the Roscoe, marked with the same marks, and numbered in an exact 
 and progressive continuation of the cases of the goods of the claimant 
 in the Roscoe; and, also, evidence, that the same goods arrived in four 
 dififerent shipments soon after the seizure of the claimant's goods in 
 the Roscoe, and before the news of the seizure could have reached Eng- 
 land; that the same goods were not then entered at the custom house, 
 but were entered by one William Bottomley, as being the property of 
 James Bottomley, senior, after full knowledge of the seizure must have 
 been known in England; and that they were then entered at a greatly 
 enhanced price and rate beyond those imported in the Roscoe. This 
 last evidence was avowedly offered as tending to establish two im- 
 portant facts: (i) That the claimant was the real owner of these ship- 
 ments; (2) that the cost of the goods by the Roscoe, as entered by the 
 claimant, was knowingly and fraudulently set forth in the entry. 
 
 "The objection taken to all these three last portions of the evidence 
 excepted to, is, that it is res inter alios acta, and upon other occasions; 
 and therefore, not properly admissible to establish a fraud in the case of 
 the importation of the goods now before the court. But it appears to me 
 clearly admissible upon the general doctrine of evidence in cases of 
 conspiracy and fraud, where other acts in furtherance of the same 
 general fraudulent design are admissible, first, to establish the fact 
 that there is such a -conspiracy and fraud; and, secondly, to repel 
 the suggestion that the acts might be fairly attributed to accident, 
 mistake, or innocent rashness or negligence. In most cases of con- 
 spiracy and fraud, the question of intent or purpose or design in 
 the act done whether innocent or illegal whether honest or fraudu- 
 lent, rarely admits of direct and positive proof; but it is to 
 be deduced from various circumstances of more or less stringency and 
 often occurring, not merely between the same parties, but between the 
 party charged with the conspiracy or fraud and third persons. And 
 in all cases where the guilt of the party depends upon the intent, pur- 
 pose, or design with which the act was done, or upon his guilty knowl- 
 
 mere circumstances of the transaction it- circumstances which show their minds to 
 
 self would furnish, it would be impossible be free from that guilt." 
 
 to ascertain whether they uttered it with Compare the authorities cited in W., 
 
 a guilty knowledge of its having been §§ 324-326. 
 
 ■forged, or whether it was uttered under 
 
50 CIRCUMSTANTIAL EVIDENCE. No. 45. 
 
 edge thereof, I understand it to be a general rule that collateral facts 
 may be examined into, in which he bore a part, for the purpose of 
 establishing such guilty intent, design, purpose, or knowledge. Thus, 
 in a prosecution for uttering a bank note, or bill of exchange, or prom- 
 issory note, with knowledge oi its being forged, proof, that the 
 prisoner had uttered other forged notes or bills, whether of the same or 
 of a different kind, or that he had other forged notes or bills in his 
 possession, is clearly admissible as showing, that he knew the note or 
 bill in question to be forged. The same doctrine is applied to a prose- 
 cution for uttering counterfeit money, where the fact of having in his 
 possession other counterfeit money, or having uttered other counterfeit 
 money, is proper proof against the prisoner to show his guilty knowl- 
 edge. Many other cases may be easily put, involving the same con- 
 siderations. Thus, upon indictment for receiving stolen goods, evidence 
 is admissible that the prisoner had received, at various other times, 
 different parcels of goods, which had been stolen from the same per- 
 sons, in proof of the guilty knowledge of the prisoner. In short, 
 wherever the intent or guilty knowledge of a party is a material in- 
 gredient in the issue of a case, these collateral facts, tending to estab- 
 lish such intent or knowledge, are proper evidence." 
 
 BLAKE V. ASSURANCE CO. (1878). 
 
 L. R. 4 C. P D. p4, 14 Cox Cr. C. 254. 
 
 Action to recover money obtained by the fraud of one Howard, 
 the defendant's agent, in offering to loan money on insurance policies. 
 The evidence of several other persons from whom money had 
 been obtained under similar circumstances was tendered 'on 
 behalf of the plaintiff to prove a system of fraud; that Howard was a 
 secret agent of the defendants, and that they had obtained the money 
 paid to them by the plaintiff through the fraud of Howard committed 
 for them and with their knowledge. This evidence was objected to, 
 by counsel for the defendants, but the learned judge admitted it. The 
 substance of it was that advertisements signed either by Howard, Card, 
 Wood, Rogers, Preston, Seymour, Holland, or some other name, and 
 often expressed in the identical words of the advertisement seen by the 
 plaintiff, appeared offering an advance of money; that the witness 
 placed himself in correspondence with the advertisers, insured his life 
 in the office of the defendants, and paid them a premium, which they 
 divided with the person who had offered the loan; that unreasonable 
 requisitions for further securities were made and the loan never ad- 
 vanced; that the policies were not renewed by the insurer; that they 
 would not have been paid had they fallen in; that the names of the 
 advertisers were all aliases of a man called "Wood," who was con- 
 stantly for hours together, and, week after week for years had been^ 
 
No. 46. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 51 
 
 in close communication with the managing director and secretary and 
 sometimes other directors of the company. 
 
 Grove, J.: "When the question is whether an act was or was not 
 fraudulent, acts of a similar kind are given in evidence to show in- 
 tention. I remember in a housebreaking case in which I was counsel, 
 a man was found under suspicious circumstances in a bedroom; it 
 was set up that he was there courting the servant; to show a guilty 
 intention, Erie, C. J., admitted evidence of the fact that he was seen 
 in the house a week before under circumstances equally suspicious and 
 which rebutted the idea that he was there for the purpose of courting. 
 ... To take the common instance of fraud committed by means of 
 begging letters. If a single letter to one individual only were proved, 
 the evidence would probably be insufficient for a conviction; but the 
 particular transaction is shown to be a guilty one by proving that the 
 person charged has done the same thing twenty times before, and that 
 in each case he has told false stories and given fictitious names. Then 
 is there any rule of law to exclude this evidence? I am of opinion 
 that there is not. Where the act itself does not per se show its nature, 
 the law permits other acts to be given in evidence for the purpose of 
 showing the nature of the particular act; as, for instance, in cases of 
 uttering counterfeit coin, even in some cases of murder, and generally 
 wherever it is necessary to show the intent with which the act was 
 done. . . . [So in this case] if you show similar shams, carried out 
 under the same false name, and that the defendants are the people 
 who put the money in their pocket in each case, the difficulty arising 
 from any possibility of mistake in the case is removed, and the jury 
 may reasonably be called upon to infer that the defendants intended 
 to pocket the money of the plaintiff in the particular case." 
 
 LiNDLEY, J. : "I agree that in order to prove that A has committed 
 a fraud on B, it is neither sufficient nor even relevant to prove that A 
 committed fraud upon C, D, and E. Stopping there, I admit that prop- 
 osition. But let it be shown that the fraud on B is one of a class of 
 other transactions having common features, then I disagree altogether 
 with that proposition. . . . The answer to the objection that evidence 
 of frauds on other persons cannot be admitted is that this transaction 
 is one of a class, that there are features in common, the features in 
 common being a false pretense and a knowledge of that false pretense 
 on the part of the defendant company; and the moment that is shown 
 the plaintiff's case is established."^^ 
 
 21 — 1878, Coleridge, L. C. J., in the ine, supremely ridiculous; because it is ad- 
 same case: "In any but an English mitted that it is most cogent and material 
 court, and to any one but an English law- to the plaintiff's claim." 
 yer, the controversy whether this evidence ■ Compare the authorities cited in W., §§ 
 is admissible or not, would seem, I imag- 340, 341. 
 
52 CIRCUMSTANTIAL EVIDENCE. No. 47. 
 
 STATE V. LAPAGE (1876). 
 
 57 N. H. 245. 
 
 Murder in October, 1875, in attempting rape on Josie Langmaid. 
 The prosecution offered to show that the accused had committed a rape 
 on Julienne Rousse, in St. Beatrice, Canada, in June, 1871, at a 
 * deserted rural spot similar to the one at which the present mur- 
 der was committed. The exception to the admission of this evidence 
 was sustained. Mr. Clark, Attorney-General, arguing: "Suppose the 
 defendant were tried for breaking and entering the store at the north 
 end of Elm Street in Manchester — the most northern of all the stores 
 on that street — with intent to steal ; suppose it were proved that he 
 broke and entered that store; that he was arrested as soon as he en- 
 tered it, and the only question was whether he intended to steal ; 
 suppose there were one hundred other stores on that street, and he had 
 broken and entered every one of them, and stolen something in every 
 one of them, beginning at the south end of the street and taking the 
 stores in succession, on his burglarious march from one end of the street 
 to the other; suppose he did all this in one night, and was completing 
 his night's work when arrested; on the question of his intent in 
 entering the one hundred and first store, would any one think of ob- 
 jecting to evidence of his one hundred larcenies in the other one 
 hundred -stores ? His robbing one hundred stores would tend to show 
 that he intended to rob the one hundred and first, just as his passing 
 counterfeit money in the one hundred would tend to show that he 
 intended to pass counterfeit money found in his possession in the one 
 hundred and first. There would be no difference between his presence 
 in the one hundred and first store, and his having counterfeit money 
 in his pocket in that store, that would, on the question of intent, affect 
 the admissibility of the evidence of what he had done in the other 
 hundred stores. Suppose, instead of robbing stores, he had robbed 
 persons, going from one end of the street to the other, and knocking 
 down and robbing one hundred men, one after the other, and not 
 touching a single woman; suppose when he had knocked down the 
 one hundred and first man, and before he had had time to rob him, 
 he had been arrested, and the question were whether he intended to 
 rob him, — whether his last offence were an attempt to rob, or a mere 
 assault, or an assault with intent to kill ; would anybody suppose his 
 robbing the other hundred men, after he knocked them down, was 
 no evidence of the intent with which he knocked down number one 
 hundred and one? Suppose the oiie hundred and one persons whom 
 he assaulted were women; suppose he touched no man; suppose he 
 had unsuccessfully attempted to ravish one hundred of them, and 
 were arrested at the instant of his knocking down the one hundred 
 and first, and the question were whether his last assault were a mere 
 assault, or an assault with intent to commit a robbery, or an assault 
 
No. 47. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 53 
 
 with intent to commit a rape; suppose the last woman assaulted 
 should die of her injuries, and the defendant were indicted for her 
 murder; . . . how would you expect, if you were the prosecuting 
 officers, to iind any better evidence of the defendant's intent than his 
 attempts upon the other one hundred women? ... If a ship-master 
 lands in Congo, obtains a cargo of blacks, and carries them to Cuba, 
 and four years and four months afterwards he is found at another 
 place on the African coast, as far from Congo as Pembroke Academy 
 is from St. Beatrice, with a hundred blacks in his possession, — would 
 anybody think that his proved intent on the former occasion had, as a 
 matter of fact, no tendency to show what he intended to do on the 
 latter occasion? . . . No man on earth would refuse to hear it, or 
 to consider it, unless he were bound by some arbitrary and irrational 
 rule overriding his understanding, and dictating a course at war with 
 his common sense. ... It is the spontaneous and irreversible judg- 
 ment of every grade of intellect that has appeared, or is likely to 
 appear, in this state of existence. It is an involuntary and unavoid- 
 able perception of the inherent and self-evident relations of conduct 
 and intention; a mental revelation as natural as memory, and as 
 trustworthy and unanswerable as consciousness." 
 
 Mr. Norris, arguing for the defence: "Making no point of remote- 
 ness in time or space, let us see how well this evidence will bear 
 analyzing. Premise to be proved : he committed a rape, in no way, 
 except in kind, connected with this crime. Inference: a general dis- 
 position to commit this kind of offence. Next premise: this general 
 disposition in him. Inference: he committed this particular offence. 
 ... It may be tried by the common test of the validity of arguments. 
 Some men who commit a single crime have, or thereby acquire, a 
 tendency to commit the same kind of crimes; if this man committed 
 the rape, he might therefore have or thereby acquire a tendency to 
 ■commit other rapes; if he had or so acquired such a tendency, and if 
 another rape was committed within his reach, he might therefore be 
 more likely to be guilty; if more likely to be guilty of rape, and if 
 there was a murder committed in perpetrating or attempting to per- 
 petrate rape, he might therefore be more likely to be guilty of this 
 Tape, and hence of this murder; a sort of an ex-parte conviction of a 
 single rape, from which the jury are to find a general disposition to 
 that kind of crimes, in order to help them out in presuming the com- 
 mission of another rape as a motive or occasion of the murder. We 
 •can find nothing like it in the books." 
 
 Ladd, J. : "It is argued on behalf of the State (if I have not 
 wholly misapprehended the drift of the argument) that the evidence 
 was admitted because, as matter of fact, its natural tendency was to 
 produce conviction in the mind that the prisoner committed rape upon 
 liis victim at the time he took her fife. ... I shall not undertake to 
 deny this. If I know a man has broken into my house and stolen 
 
54 CIRCUMSTANTIAL EVIDENCE. No. 47, 
 
 my goods, I am for that reason more ready to believe him guilty^ of 
 breaking into my neighbor's house and committing the same crime 
 there. We do not trust our property with a notorious thief. We can- 
 not help suspecting a man of evil life and infamous character sooner 
 than one who is known to be free from every taint of dishonesty or 
 crime. We naturally recoil with fear and loathing from a known 
 murderer, and watch his conduct as we would the motions of a beast 
 of prey. When the community is startled by the commission of some 
 great crime, our first search for the perpetrator is naturally directed, 
 not among those who. have hitherto lived blameless lives, but among 
 those whose conduct has been such as to create the belief that they 
 have the depravity of heart to do the deed. This is human nature — 
 the teaching of human experience. If it were the law, that every- 
 thing which has a natural tendency to lead the mind towards a con- 
 clusion that a person charged with crime is guilty must be admitted 
 in evidence against him on the trial of that charge, the argument 
 for the State would doubtless be hard to answer. If I know a man 
 has once been false, I cannot after that believe in his truth as I did 
 before. If I know he has committed the crime of perjury once, I 
 more readily believe he will commit the same awful crime again, and 
 I cannot accord the same trust and confidence to his statements under 
 oath that I otherwise should. . . . Suppose the general character of 
 one charged with crime is infamous and degraded to the last degree; 
 that his life has been nothing but a succession of crimes of the most 
 atrocious and revolting sort: does not the knowledge of all this inev- 
 itably carry the mind in the direction of a conclusion that he has 
 added the particular crime for which he is being tried to the list of 
 those that have gone before? Why, then, should not the prosecutor 
 be permitted to show facts which tend so naturally to produce a 
 conviction of his guilt? The answer to all these questions is plaia 
 and decisive: The law is otherwise." 
 
 Gushing, C. J.: "I think we may assume, in the outset, that it 
 is not the quality of an action, as good or bad, as unlawful or lawful, 
 as criminal or otherwise, which is to determine its relevancy. I take 
 it to be generally true, that any act of the prisoner may be put in 
 evidence against him, provided it has any logical and legal tendency 
 to prove any matter which is in issue between him and the State, not- 
 withstanding it might have an indirect bearing, which in strictness- 
 it ought not to have, upon some other matter in issue. 
 
 "I think we may state the law in the following propositions: (i) It 
 is not permitted to the prosecution to attack the character of the pris- 
 oner, unless he first puts that in issue by offering evidence of his 
 good character. (2) It is not permitted to show the defendant's bad 
 character by showing particular acts. .(3) It is not permitted to- 
 show in the prisoner a tendency or disposition to commit the crime 
 with which he is charged. (4) It is not permitted to give in evi- 
 
No. 47. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 55 
 
 dence other crimes of the prisoner, unless they are so connected by 
 circumstances with the particular crime in issue as that the proof of 
 one fact with its circumstances has some bearing upon the issue on 
 trial other than such as is expressed in the foregoing three proposi- 
 tions. . . . The cases cited by counsel for the government admit of being 
 classified into several distinct groups. In the first place is the class 
 of cases in which other offences are shown for the purpose of proving 
 guilty knowledge. To this class belong those cases in which, in the 
 trial of indictments for uttering forged bank-notes, or counterfeit coin, 
 the proof of other offences of the same kind is admitted. It might 
 well happen that a person might have in his possession a single coun- 
 terfeit bill or coin without knowing it to be such ; but he would be 
 much less likely to do so twice, and every repetition of such an act 
 would increase the probability that he knew that the bills or coins 
 were counterfeit. . . . Another class of cases consists of those in which 
 it becomes necessary to show that the act for which the prisoner was 
 indicted was not accidental, — e. g. where the prisoner had shot the 
 same person twice within a short time, or where the same person had 
 fired a rick of grain twice or where several deaths by poison had taken 
 place in the same family, or where children of the same mother had 
 mysteriously died. In such cases it might well happen that a man 
 should shoot another accidentally, but that he should do it twice within 
 a short time would be very unlikely. So, it might easily happen that 
 a man using a gun might fire a rick of barley once by accident, but 
 that he should do it several times in succession would be very im- 
 probable. So, a person might die of accidental poisoning, but that 
 several persons should so die in the same family at different times 
 would be very unlikely. So, that a child should be suffocated in bed 
 by its mother might happen once, but several similar deaths in the 
 same family could not reasonably be accounted for as accidents. So, 
 in the case of embezzlement effected by means of false entries, a 
 single false entry might be accidentally made; but the probability of 
 accident would diminish at least as fast as the instances increased. 
 . . . There is another class of cases in which proof of the commission 
 of one crime tends to show a motive for the commission of the crime 
 with which the prisoner is charged. . . . Another class of cases consists 
 of those in which the evidence tends to show a general plan or con- 
 spiracy, one act of which was that which is in issue. ... In the case 
 of sexual crimes, as fornication and adultery, where the object is to 
 prove that the respondent has committed a crime with a particular -in- 
 dividual, evidence tending to show previous acts of indecent famil- 
 iarity would have a tendency to prove the breaking down and re- 
 moval of the safeguards of self-respect and modesty, and the grad- 
 ual advance step by step, to the crime. ... It should also be re- 
 marked that this being a matter of judgment, it is quite likely that 
 Courts would not always agree, and that some Courts might see 
 
56 CIRCUMSTANTIAL EVIDENCE. No. 47. 
 
 a logical connection where others could not. But, however extreme 
 the case may be, I think it will be found that the Courts have 
 always professed to put the admission of the testimony on the 
 ground that there was some logical connection between the crime 
 proposed to be proved other than the tendency to commit one crime 
 as manifested by the tendency to commit the other. In the case 
 under consideration, I cannot see any such logical connection, be- 
 tween the commission of the rape upon Julienne Rousse and the 
 murder of Josephine Langmaid, as the law requires. I am unable 
 to see any connection by which from the first crime can be inferred 
 that the respondent was attempting the commission of a rape when he 
 committed the murder, if he did it, other than such inference as I 
 understand the law expressly to exclude." 
 
 Smith, J.: "Proof that he committed a rape in Canada, four 
 years previously, upon Julienne Rousse, shows what? Not that he 
 then had any design or intent to perpetrate a rape four years after- 
 wards upon another woman whom he had never seen or heard 
 of, or in a place two hundred miles distant where he had never 
 been; not that he had then formed a design to rape and murder 
 women whenever he might have opportunity; not that he had ever 
 before or since committed that crime, — ^but that the defendant had 
 a disposition to commit the crime of rape four years previously. No 
 one will pretend that evidence that the prisoner had committed 
 another murder, in Canada, or Texas, or Europe, could be shown 
 on this trial. One cannot be convicted of murder, by showing 
 that he had at some time and somewhere else committed another mur- 
 der; or of larceny, by showing that he has committed the crime before, 
 and therefore has an evil disposition inclining him towards that par- 
 ticular crime."^ 
 
 COMMONWEALTH v. ROBINSON (1888). 
 
 146 Mass. 5;i, 16 N. E. 452. 
 
 Indictment for the murder of Prince Arthur Freeman by poison- 
 ing. At the trial, before Field and Knowlton, JJ., there was evidence 
 tending to prove the following facts : 
 
 In February, 1885, Freeman occupied a tenement in South 
 Boston with his wife, Annie Freeman, who was a sister of the de- 
 fendant, and their two children. On February 20, 1885, the defendant 
 called upon her sister, staying but a short time, and on February 23, 
 1885, again went to her sister's house to take care of her, and there 
 stayed until Mrs. Freeman died on February 26, 1885, after an illness 
 of about three weeks. The children had been taken to the defendant's 
 house in Cambridge on February 22, and, immediately after the death of 
 his wife. Freeman went to live with the defendant, and there remained, 
 
 I — Compare the authorities cited in W., § 357. 
 
No. 48. CONDUCT, TO EVIDENCE KNOWLEDGEj INTENT, ETC. 57 
 
 with his children. The baby died in April, 1885. In 1882 Freeman had 
 taken out a certificate of insurance for $2,000 in the United Order of 
 Pilgrim Fathers, his wife being the beneficiary named in the certificate, 
 and after her death, on or about May 13, 1885, appointed the de- 
 fendant his beneficiary under the certificate, as authorized by the by- 
 laws of the order. Freeman, while still an inmate of the defendant's 
 family, died, on June 27, 1885, after an illness of about six days, from 
 the effects of arsenic administered to him by the defendant. On July 
 23, 1886, the boy, Thomas Arthur, died. From a period prior to 1885, 
 the defendant had been indebted to different persons to the amount 
 of six or seven hundred dollars, which she was unable to pay, and for 
 which she had been hard pressed by her creditors, and this indebted- 
 ness she paid off out of Freeman's insurance, which she duly received 
 from the order on September 23, 1885. (i) The prosecution offered, 
 for the sole purpose of establishing the defendant's motive in killing 
 her brother-in-law, to prove that prior to the death of Annie Freeman 
 the defendant had formed the plan and intention of securing to her own 
 use the $2,000 of insurance, and as a means of accomplishing this 
 result, and as a part of the scheme, determined first to kill her, then to 
 induce Freeman to make her the beneficiary under the certificate, and 
 then to kill him. Mr. Stevens, District Attorney, stated the object of 
 the offer as follows : Field, J. : "Do you offer it for the purpose of 
 rendering it more probable that she committed the murder charged, or 
 for the purpose of showing the intent of the murder with which she is 
 charged,, six months before committing; for the purpose of showing the 
 same motive operating?" Mr. Stevens: "I put it as the strongest piece 
 of evidence which has a tendency in this case in showing what was the 
 motive." . . . Field, J. : "Does the force of the evidence stop with prov- 
 ing that she formed the intent of killing her brother-in-law before her 
 sister died?" Mr. Stevens: "Certainly." . . . Field, J.: "But the fact 
 that she killed her sister, is that offered for any purpose except to show 
 that she had the intent of killing her brother-in-law at that time ? Is it 
 offered to show if she killed her sister, she killed her brother-in-law?" 
 Mr. Stevens: "Not in the slightest degree." 
 
 The Court, by Field, J., admitted this evidence, in the following 
 terms : "If evidence, direct or circumstantial, is offered and admitted 
 tending to show that this defendant knew before her sister's death of the 
 existence of the insurance, and that it could be transferred on the death 
 of her sister to herself and made payable to herself on the death of her 
 brother-in-law; and that she, before the sister's death, had formed in 
 her own mind a plan or intention to obtain this insurance for her own 
 benefit, and this plan or intention continued to exist and be operative up 
 to the time of the death of her brother-in-law ; then we are of the opin- 
 ion that evidence may be offered that her sister died of poison and that 
 this defendant administered it as a part of the method employed by her 
 to carry this plan or intention into effect, in connection with evidence 
 
58 CIRCUMSTANTIAL EVIDENCE. No. 48. 
 
 that she administered poison to her brother-in-law as another part of 
 the same plan or intention.'' 
 
 (2) The prosecution afterwards offered further to prove that after 
 the death of her brother-in-law and her receipt of the insurance money 
 in her own right, as beneficiary, she poisoned the remaining child, 
 Thomas Arthur, in July, 1886. This offer was stated and opposed in 
 the following terms : Mr. Stevens : "The government has already of- 
 fered evidence that this money was received for the purpose of taking 
 care of Thomas Arthur Freeman, and the position of the government is 
 that the motive which induced this woman to kill Prince Arthur Freeman 
 was for the purpose of getting two thousand dollars to use for her own 
 benefit. . . . Now, this testimony of the death of Thomas relates back 
 and explains more fully the real motive and the strength of the motive 
 which induced her to kill Prince Arthur. It shows that she did not re- 
 ceive the money for the purpose of using it to take care of Thomas Arthur, 
 but has a tendency to show that the real purpose and the real motive 
 was, not the alleged motive by which she had received it, for the purpose 
 of taking care of Thomas Arthur, but was for her own personal benefit." 
 . . . Field, J. : "Does it not amount to this, that you show she killed 
 Thomas Arthur for the purpose of getting rid of the burden of support- 
 ing him?" VLr. Stevens: "Not entirely. I do not think it would be ad- 
 missible simply for that purpose. I do not think it is admissible except 
 on the ground that it relates back to the original motive." . . . Field, J. : 
 "Suppose you prove that she wanted the money for the purposes of the 
 expenses of the family generally, then can the death of any mem- 
 ber of her family at any subsequent time be shown in order to relate 
 back and help to prove the original motive?" . . . Mr. Stevens: "I 
 should say no, on general principles, unless there was some particular 
 circumstance. It seems to me that that differs from this case." . . . 
 Field, J. : "You know the rule of law is, that you shall not submit the 
 evidence of one crime to prove another. The general rule of law is un- 
 doubtedly against it. If you are indicted for assaulting A, it is not com- 
 petent to prove that you have assaulted B, C and D." Mr. Stevens: 
 "Because ordinarily it has not any natural tendency to satisfy the reason- 
 able mind that the prisoner committed that crime." Field, J. : "It has 
 some tendency to show that he is a man who is habitually assaulting peo- 
 ple." Mr. Stevens: "I tried to argue, — ^but I did not argfue successfully, 
 — in the former trial, that under certain combinations I thought that 
 was admissible, but the Court overruled it, and of course I cannot argue 
 that now." Field, J.: "Suppose you are indicted for cheating A in a 
 horse trade, the fact that you have cheated twenty-seven other persons 
 within three months, is, independently of legal rules, some evidence to 
 the point that you have cheated the last person ; but yet, it is not admis- 
 sible if there is no connection between the different acts." Mr. Stevens: 
 "1 don't know about that ; but the Court says it is not. But if I pass a 
 piece of counterfeit money, and if it is a fact that I had another piece of 
 
Ho. 48. CONDUCT, TO EVIDENCE KNOWLEDGE, INTENT, ETC. 59 
 
 counterfeit money in my possession, that would be evidence against me. 
 I do not think the rules of law are always consistent.'' Field, J. : "That 
 is an exception, and it goes simply to the point of whether you knew it 
 was counterfeit. The ground is that a man may have one counterfeit 
 half-dollar and not know it; but if he has a good many in his possession 
 and on successive days, it is evidence that he knows that the money is 
 counterfeit." Mr. Stevens: "Where a distinct crime is committed, we 
 do not put it in that position. But does it not have a natural tendency, 
 and is it not connected circumstantially with the principal fact, in so far 
 as it tends to go back and explain the motive ?" Field, J. : "Is it not 
 more reasonable, on general principles, that if there be any evidence that 
 she killed the son, the motive to do that was formed after the death of 
 the father, than that it was formed before, — on general principles ? Is it 
 not merely collateral as connected with the original motive?" Mr. 
 Stevens: "I do not think it is, if you go along step by step." . . . Mr. 
 Goodrich, for the defence : "It is admitted that there was no contract in 
 writing, there was no trust created by any instrument, but she simply 
 acknowledged that she had the care and the charge of the child and was 
 to take care of the child, and she recognized the expense of it. . . . If 
 evidence of the death of Thomas Arthur Freeman is competent in this 
 case, it is because that death was a part of the original scheme. Now, 
 if the original scheme was to get possession of the money, then to make 
 this evidence competent it must appear that it would serve that end, — ^the 
 scheme of getting the money. Therefore it would be material whether 
 or not the money had been got and spent; because if the prisoner had 
 obtained the money at the time of Thomas Arthur Freeman's death, and 
 had spent it and it was gone, then some other motive except the obtain- 
 ing of the money must have been the motive for Thomas Arthur's death. 
 Now, in point of fact, it is proper for me to say that the money had 
 been spent and was gone; and, therefore, her only object and motive in 
 committing the murder of Thomas Arthur Freeman must have been to 
 get rid of her responsibility of taking care of him." . . . The justices 
 went out for consultation. They then returned and said, by Field, J. : 
 "The justices have considered the question submitted, to them and are 
 divided in opinion. The result is that in a capital case, where the point 
 does not concern the general administration of justice, but is dependent 
 upon the particular facts of a particular case, in favorem vitce, the evi- 
 dence must be excluded." 
 
 In the Supreme Court, the admission of the first part of the evidence 
 above was held proper, in the following terms: 
 
 C. Allen, J. : "While it is well settled in this Commonwealth that 
 on the trial of an indictment the government cannot be allowed to prove 
 other independent crimes for the purpose of showing that the defendant 
 is wicked enough to commit the crime on trial, this rule does not ex- 
 tend so far as to exclude evidence of acts or crimes which are shown 
 to have been committed as part of the same common purpose or in 
 
60 CIRCUMSTANTIAL EVIDENCE. No. 48. 
 
 pursuance of it. In such cases there is a distinct and significant proba- 
 tive effect, resulting from the continuance of the same plan or scheme 
 and from the doing of other acts in pursuance thereof. It is some- 
 what of the nature of threats or declarations of intentions, but more 
 especially of preparations for the commission of the crime which is 
 the subject of the indictment. If, for example, it could be shown that 
 a defendant had formed a settled purpose to obtain certain property 
 which could only be got by doing several preliminary things, the last 
 of which in the order of time was criminal, the government might 
 show, on his trial for the commission of that last criminal act, that he 
 had formed the purpose to accomplish the result of obtaining the prop- 
 perty, and that he had done all of the preliminary things which were 
 necessary to that end. This would be quite plain if the evidence of 
 the purpose were direct and clear, — as, if a letter in the defendant's 
 handwriting should be discovered, stating in terms to a confederate his 
 purpose to obtain the property by the doing of the several successive 
 acts the last of which was the criminal act on trial. In such case, no 
 one would question that proof might be offered that the defendant had 
 done all the preliminary acts referred to, which were necessary steps 
 in the accomplishment of his purpose. But such purpose may also be 
 shown by circumstantial evidence. It is, indeed, usually the case that 
 intentions, plans, purposes, can only be shown in this way. Express 
 declarations of intention, or confessions, are comparatively rare; and 
 therefore all the circumstances of the defendant's situation, conduct, 
 speech, silence; motives may be considered. The plan itself, and the 
 acts done in pursuance of it, may all be proved by circumstantial evi- 
 dence, if they are of themselves relevant and material to the case on 
 trial. In such a case it makes no difference whether the preliminary 
 acts are criminal or not; otherwise, the greater the criminal, the 
 greater his immunity. Such preliminary acts are competent because 
 they are relevant to the issue on trial; and the fact that they are 
 criminal does not render them irrelevant. Suppose, for further ex- 
 ample, one is charged with breaking a bank, and there is evidence that 
 he had made preliminary examinations from a neighboring room ; that 
 his occupation of such room was accomplished by a criminal breaking 
 and entering would not render the evidence incompetent. It is some- 
 times said that such evidence may be introduced where the several 
 crimes form part of one entire transaction; but it is perhaps better to 
 say, where they have some connection with each other, as a part of the 
 same plan or induced by the same motive."^ 
 
 z— Brewer, J., in State V. Adams, 20 volume of competent testimony against 
 
 Kan. 319 (1878): "Whatever testimony him." 
 
 tends directly to show the defendant guilty Beatty, C. J., in People v. Walters, 98 
 
 of the crime charged is competent, though Cal. 138, 141, 32 Pac. 864 (1893), and 
 
 it also tends to show him guilty of an- People v. Tucker, 104 id. 440, 442, 38 Pac. 
 
 other and distinct offence. A party can- 195: "It is true that in trying a persoti 
 
 not by multiplying crimes diminish the charged with one offence it is ordinarily 
 
No. 49. CONDUCT, TO EVIDENCE INTENT, MOTIVE, ETC. 61 
 
 HOLLINGHAM v. HEAD (1858). 
 4 C. B. N. S. '388. 
 
 Action for the price of a quantity of artificial manure sold by the 
 plaintiff to the defendant. At the trial before Williams, J., at the last 
 Assizes for Sussex, it appeared that the plaintiff, who represented 
 *" himself to be the agent of a company styled The Sussex Manure 
 Company, was in the habit of traveling about to the different market towns 
 to sell an article called Rival Guano ; that he met with the defendant, who 
 was the occupier of a farm in the county of Sussex, adjacent to a farm 
 which had formerly been in the occupation of the plaintiff, and pre- 
 vailed upon him to purchase a quantity of this guano; and that it 
 turned out to be altogether worthless. The defence set up was, that 
 the article had been purchased by the plaintiff subject to a condition 
 that it was not to be paid for unless it proved equal to Peruvian guano : 
 and it was proposed, on cross-examination, to ask the plaintiff whether 
 he had not made contracts with other persons for the sale of his 
 Rival Guano upon the terms that the purchasers should not pay for it 
 unless it turned out to be equal to Peruvian guano. The learned judge 
 permitted the question to be put, for the purpose of testing the plain- 
 tiff's credit. The defendant's counsel then proposed to call witnesses to 
 prove that the plaintiff had made contracts with other persons for the 
 sale of his guano upon the terms suggested. The learned judge ruled 
 that this evidence was not admissible, as not being relevant to the 
 issue,^and"7?5~w#er-<T/Taj-arto. ' ' 
 
 WiLLES, J.: "I am of opinion that the evidence was properly disal- 
 lowed as not being relevant to the issue. It is not easy in all cases 
 to draw the line and to define with accuracy where probability ceases 
 and speculation begins; but we are bound to lay down the rule to the 
 best of our ability. . . . Now it appears to me that the evidence pro- 
 posed to be given in this case, if admitted, would not have shown that 
 it was more probable that the contract was subject to the condition in- 
 sisted upon by the defendant. The question may be put thus: Does 
 the fact of a person having once or many times in his life done a par- 
 ticular act in a particular way make it more probable that he has done 
 the same thing in the same way upon another and different occasion? 
 To admit such s necujative; _ evidence would I think be fraught with 
 great danger. . . lli such evidence were held admissible it would be 
 difficult to say that the defendant might not, in any case where the 
 
 inadmissible to offer proof of another and the minds of the jurors is no ground for 
 
 distinct offence; but this is only because its exclusion. . . . When such evidence is 
 
 the proof of a distinct offence has ordi- offered, the same considerations arise ap 
 
 narily no tendency to establish the offence upon the offer of other testimony: Is the 
 
 charged. But whenever the case is such evidence relevant and competent? Does it 
 
 that proof of one crime tends to prove tend to prove any fact material to the is- 
 
 any fact material in the trial of another, sues?" 
 
 such proof is admissible; and the fact that Compare the authorities cited in W., § 
 
 it may tend to prejudice the defendant in 363. 
 
€2 CIRCUMSTANTIAL EVIDENCE. No. 49. 
 
 question was whether or not there had been a sale of goods on credit, 
 call witnesses to prove that the plaintiff had dealt with other persons 
 upon a certain credits or in an action for an assault, that the plaintiff 
 might not give evidence of former assaults committed by the defendant 
 upon other persons, or upon other persons of a particular class, for the 
 purpose of showing that he was a quarrelsome individual and therefore 
 that it was highly probable that the particular charge of assault was 
 well-founded. The extent to which this sort of thing might be car- 
 ried is inconceivable."^ 
 
 STATE V. KENT, alias PANCOAST (1896). 
 
 5 N. D. 516, 67 N. W. 1052. 
 
 The accused was charged with the murder of his second wife, Julia 
 C. Kent, in 1894. He had formerly lived in Medina, Ohio, and was 
 cashier of a bank there, in 1873, when his first wife died and he. 
 
 left iorothep-*egions ; the alleged motive of the murder was his 
 fear that the second wife was about to discover the facts of his murder 
 of the first wife twenty years before, his robbing of the bank, and the 
 falsity of his present name and pretensions; proof of these past misdo- 
 ings was received. 
 
 Bartholomew, J. : "This case is unusual in its facts. The proof 
 of the commission of the crime or crimes at Medina, Ohio, would not, 
 as we view it, have had any legal tendency to furnish a motive for the 
 murder of Julia C. Kent, but for the declared state of mind, according 
 to Swidensky's testimony, under which Kent was laboring. It was the 
 theory of the State that Kent believed that Mrs. Kent was suspicious of 
 something; that he was haunted with a fear or dread that she might 
 become cognizant of certain crimes that he had committed in Ohio; 
 and that this fear was the motive that actuated him in conspiring for 
 her death. Obviously, this theory of the motive would be greatly 
 strengthened by proof that he had committed the specified crimes in 
 Ohio. While it is true that, in the cases where proof of a collateral 
 
 3 — Peters, J., in Eaton V. Telegraph Co. same thing in the same way upon another 
 
 (1878), 68 Me. 63, 67 (whether A had and different occasion.' It is sometimes 
 
 sold to B, or was merely holding for B, permissible to show, however, what men 
 
 certain certificates of stock in the former's generally have done under certain circum- 
 
 possession; the certificates were in A's stances and conditions, as showing how a 
 
 name and bore assignments to B, the facts particular man might act under the same 
 
 of A's possession as custodian of other surroundings. . . . Here the dealing in- 
 
 certificates of the same stock made out in quired about was between the same per- 
 
 B's name was received) : "The difficulty sons at the same time and related to the 
 
 is to decide what is and what is not rele- same kind of property. The reason of the 
 
 vant evidence. The best authorities clearly rule which excludes irrelevant testimony 
 
 sustain the doctrine that 'the fact of a admits such as this." 
 
 person having once or many times in his Compare the authorities cited in W., § 
 
 life done a particular act in a particular 377. 
 way does not prove that he has done the 
 
No. 51. CONDITIONS, EFFECTS, ETC., OF THINGS AND PLACES. 63 
 
 crime has been admitted for the purpose of showing motive, the relation 
 between the two crimes was usually such as to indicate that the latter 
 was committed in order to prevent an investigation into and an expo- 
 sure of the former crime, that it was feared would be followed by 
 prosecution and punished, yet we can discover no reason in principle 
 for the limitation of the rule to that class of cases strictly. Any 
 strong incentive must furnish an equally cogent reason for the admis- 
 sion of such testimony. . . . Whoever reads the record in this case, 
 and particularly Kent's letters, will be irresistibly impressed with 
 the thought that Kent at all times assumed high moral grounds, with 
 an exalted standard of personal purity. There is evidence tending to 
 show that he claimed for himself a higher social position than he was 
 willing to concede to his wife. Under these circumstances, it would 
 be intolerably galling to him to have his wife learn that he was 
 in fact a felon, that he had married her under an assumed name, and 
 that during all these years he had led a life of duplicity and hypocrisy. 
 . . . Nor can we sanction the views of the learned counsel that these 
 collateral crimes were too remote in time to furnish any motive for the 
 commission of the crime here charged. Motive may or may not be 
 affected by the lapse of time. Ordinarily, a man who had com- 
 mitted a murder 20 years in the past would be just as much concerned 
 to prevent exposure and punishment for that crime as though it were 
 but one year in the past./ And in this case, if the discovery by Mrs. 
 Kent, at the time of her oeath, of these dark and criminal spots in her 
 husband's life, would have been just as galling and humiliating to him 
 as if discovered the first year of their married life, then his motive 
 to prevent such discovery would be just as strong at the former time 
 as at the latter."* > 
 
 SUB-TITLE III. 
 
 EVIDENCE TO PROVE FACTS OF EXTERNAL INANI- 
 MATE NATURE (EVENTS, CONDITIONS, CAUSES, 
 QUALITIES, AND EFFECTS OF THINGS 
 AND PLACES). 
 
 EMERSON V. LOWELL GASLIGHT CO. (1862). 
 3 All. 410. 
 At the trial in the Superior Court, before Putnam, J., it appeared 
 that in January, 1857, the gas escaped from the defendant's main pipe 
 in Middlesex Street in the city of Lowell, under the same cir- 
 cumstances stated in Hunt v. Lowell Gas Light Co. (i Allen 
 343), and passed under the frozen earth through sewers and drains 
 into the cellar and house occupied by the plaintiffs, on Middlesex 
 
 4— Compare the authorities cited in W., 5 390. 
 
64 CIRCUMSTANTIAL EVIDENCE. No. 51 
 
 Street, of which the defendants had notice; and that it was several 
 days after they received notice of the escape of the gas, before they 
 discovered the place of the leak in their main pipe. The plaintiffs 
 offered to show that a large number of houses in the neighborhood, the 
 drains of which connected with these sewers, were filled with gas, and 
 that wherever the gas entered sickness followed, but the judge rejected 
 the evidence. 
 
 Merrick, J.: "The evidence offered by the plaintiffs to show that 
 wherever the gas which escaped from the fracture in the defendants* 
 pipe entered any dwelling-house in the neighborhood of the plaintiffs, 
 sickness followed, was properly excluded. Each separate and indi- 
 vidual case must stand upon, and be decided by, the evidence particu- 
 larly applicable to it. / The attending circumstances may be so different, 
 that the occurrence of sickness in one house would have no tendency 
 to show the cause of illness in the occupants of another. If such evi- 
 dence was admissible, the issues in a single cause might be indefinitely 
 multiplied; and this would tend only to confusion, and to mislead the 
 jury."\ 
 
 GEORGE L. HUNT v. LOWELL GASLIGHT CO. (1864). 
 8 All. 169. 
 
 At the trial, before Metcalf, J., the evidence tended to show that 
 the plaintiffs lived in New Hampshire, and on the 4th of February, 
 1857, came to the house of Aaron Hunt in Lowell and remained 
 "■^ there for nine days; that gas had escaped into the house under 
 the circumstances stated in i Allen 344, and the plaintiffs became ill, 
 and returned home, where they were sick for several weeks. The 
 plaintiffs were allowed to prove, against the defendants' objection, that 
 up to that time the family of said Aaron had been in perfect health, 
 and that immediately or soon after the escape of the gas into the 
 house every member of the family became seriously sick; but no evi- 
 dence of the particulars of the sickness of any of them was admitted. 
 
 Chapman, J. : "The plaintiffs were visitors in the family of Aaron 
 Hunt at the time when the defendants' gas escaped into the house, and 
 they were permitted to offer evidence that Aaron Hunt and his family 
 had been in perfect health up to the time when the gas began to escape 
 into their house, and that, immediately or soon after, every member 
 of the family became seriously sick. The admission of this evidence is 
 excepted to. But evidence of this character was held to be admissible 
 in the case of Aaron Hunt against these defendants (i Allen 344). 
 The plaintiffs were not allowed to give evidence of the particulars of 
 the sickness of any one of these persons; and it is objected that, if the 
 evidence was admissible to any extent, the particulars should have been 
 inquired into. But the sickness of these persons is a collateral fact, 
 and is admissible merely for the purpose of showing the nature of the 
 
No. 53. CONDITIONS, EFFECTS, ETC., OF THINGS AND PLACES. 65 
 
 gas which came into the house, to the influence of which all the in- 
 mates were subjected alike. Evidence that the inmates of another 
 house were made sick in consequence of inhaling the gas that escaped 
 into their house from the same defect in the defendants' pipes has been 
 held to.be inadmissible: Emerson v. Lowell Gas Light Co. (3 Allen 
 410). The evidence should be limited to the effect of the gas upon 
 those who have in common, and under similar circumstances, inhaled 
 it. How far the plaintiff shall be permitted to go into particulars in 
 offering such evidence should depend somewhat on the circumstances 
 of the case, and must, within reasonable limits, be left to the discretion 
 of the presiding judge. If it falls short of proving that the gas caused 
 the sickness of the other persons, it amounts to nothing. But it might 
 be very unreasonable to permit the case to branch out into several col- 
 lateral issues on such a point."^ 
 
 DARLING v. WESTMORELAND (1872). 
 52 N. H. 401. 
 
 Case by Charles Darling against the town of Westmoreland, for an 
 injury caused by defects in a highway. Verdict for the defendants, 
 and motion of the plaintiff for a new trial. The defects alleged 
 by the plaintiff were, a pile of lumber by the side of the road 
 likely to frighten horses, and an insufficient railing of a bridge. His 
 claim was, that his horse was frightened by the lumber as he crossed 
 the bridge, and ran back, and backed off the bridge. One ground of 
 defence was, that the horse was vicious and unsafe, and much evidence 
 was offered on that point on both sides. The plaintiff introduced the 
 testimony of a Mr. Cressy, who testified that he rode past this pile of 
 lumber with a Mr. Fletcher, and he offered to prove by him that 
 Fletcher's horse was frightened by the lumber; but the court rejected 
 the evidence, and the plaintiff excepted. 
 
 Doe, J.: "One question of fact was, whether the pile of lumber 
 was likely to frighten horses. . . . Was the fright of Fletcher's 
 horse competent evidence on the question whether the lumber was 
 likely to frighten horses? . . . On the independent and general 
 question of the horse-frightening capacity of a certain pile of lumber, 
 what rule of law considers the fright of [the plaintiff's] horse as im- 
 portant and disregards the fright of Mr. Fletcher's horse as of no 
 consequence at all? . . . If the question were, whether the lum- 
 ber was capable of floating in water, or making a good fire, or being 
 sawed or cut or planed in a specific manner, or supporting hoi-ses and 
 wagons passing over a bridge, there could be no legal objection to the 
 trial of an appropriate experiment upon it in the presence of the jury, 
 or to evidence of experiments that had been tried elsewhere. And 
 there is no reason, outside of the technical rules of law, why its ability 
 
 I — Compare the authorities cited in W., § 4S7- 
 5 
 
66 CIRCUMSTANTIAL EVIDENCE. No. 53. 
 
 to frighten horses should not be tested out of court, and proved in 
 court in the same manner. When we want to know whether a certain 
 horse is skittish or is capable of a certain speed, whether a certain sub- 
 stance is poisonous and destructive of animal or vegetable life, whether 
 certain materials are of a certain strength, whether a certain field or a 
 certain kind of soil is likely to produce a certain kind or amount of 
 crop, whether a certain man or brute or machine is likely to perform 
 a certain kind or amount of work, or whether anything can be done 
 or is likely to be done, one way is to speculate about it, and another 
 way is to try it. The law is a practical science, and when it is ap- 
 pealed to to direct what means shall be used to find out whether a 
 certain pile of lumber is likely to frighten horses, if any one asserts 
 that, on this subject, the law prefers speculation to experience, abhors 
 actual experiment and delights in guesswork, the person advancing such 
 a proposition takes upon himself the task of maintaining it upon some 
 legal rule, distinctly stated by him and well established by the authori- 
 ties. Such a proposition is not sustained by the reason of the law. It 
 is sustained by nothing that can be justly called a principle. By what 
 technical rule, at war with reason and principle, is it supported? The 
 very few authorities tending to sustain the exclusion of the fright of 
 Fletcher's horse in this case, are based upon the authority or the rea- 
 son of the decision in Collins v. Dorchester (6 Cush. 396), and two 
 other Massachusetts cases which rest upon that case. ... A con- 
 sideration, substantially disposing of the very few authorities that 
 have any considerable tendency to sustain the ruling in this case, is, 
 that Collins v. Dorchester, on which the others are based, is no au- 
 thority for the exceptional doctrine it has been supposed to establish. 
 That case being no foundation for the others, and they having no other 
 foundation, they all fall together. In that case, 'the highway in ques- 
 tion passed through a marsh, and was made smooth and passable for 
 the width of at least thirty-one feet; and, on each side, at the edge of 
 and along the road, there was a row of posts about six feet apart, ex- 
 tending on each side for twenty rods or more, which had been stand- 
 ing for many years. The plaintiff drove his chaise against one of the 
 posts, so that one wheel passed outside of and locked upon the post; 
 and this accident was the occasion of the injury complained of. It 
 appeared that two or three of the posts, at about the place where the 
 accident occurred, were broken down or removed. The alleged defect 
 was the want of a railing at the place where the accident occurred. 
 . . . The plaintiff . . . proposed to prove by one Sprague, that, 
 before the happening of the accident complained of, the witness was 
 riding over the same road, at or near the same place, and under sim- 
 ilar circumstances, and that an accident similar to the one in question 
 then occurred, which was caused by the same alleged defect, and with- 
 out any neglect or fault on the part of the witness.' The judge ruled 
 that this evidence was not competent 'for the purpose of proving the 
 
No. 53. CONDITIONS, EFFECTS, ETC., OF THINGS AND PLACES. 67 
 
 way defective.' The whole of the decision of the question raised by 
 that ruling was this: 'The testimony of Sprague, that he, before the 
 injury complained of by the plaintiff, received a similar injury at or 
 near the same place, without any negligence on his part, was not com- 
 petent for the purpose of proving that the road was defective at the 
 time and in the place of the plaintiff's injury. It was testimony con- 
 cerning collateral facts, which furnished no legal presumption as to 
 the principal facts in dispute, and which the defendants were not bound 
 to be prepared to meet. Standish v. Washburn (21 Pick. 237). Even 
 a judgment recovered by Sprague against the defendants for damages 
 sustained by him by reason of a defect in the road, would not be admis- 
 sible in evidence in favor of the plaintiff.' 
 
 "In that case, a sufficient railing on the posts would have prevented 
 the plaintiff's wheel going outside of the post with which his carriage 
 came -in contact. The question was, whether, in the undisputed con- 
 dition of the road, the absence of such railing, exposing travellers to 
 the danger of their wheels going outside of and locking upon the posts, 
 was a defect. No experiment or experience of the plaintiff, or Sprague, 
 or any one else, was necessary to show that the posts were capable of 
 being run against. It does not appear that any such experiment or 
 experience would assist the judgment of the jury on the question 
 whether, in the undisputed condition of the road, the posts were likely 
 to be run against. Such a case is no authority for holding that the 
 disputed horse-frightening capacity of a certain pile of lumber cannot 
 be shown by experience. . . . 
 
 "The only rule relied upon to exclude experimental knowledge in 
 such a case as this, is the rule requiring the evidence to be confined to 
 the issue, — that is to the facts put in controversy by the pleadings, 
 prohibiting the trial of collateral issues, — that is, of facts not put in 
 issue by the pleadings, and excluding such evidence as tends solely to 
 prove facts not involved in the issue. This rule merely requires evi- 
 dence to be relevant. It merely excludes what is irrelevant. It is a 
 rule of reason, and not an arbitrary or technical one, and it does not 
 exclude all experimental knowledge. A fact as relevant and as directly 
 involved in the issue of guilty or not guilty between these parties, as 
 any fact in controversy, was the likelihood or probability of the lum- 
 ber frightening ordinary horses. There was nothing collateral — that 
 is, nothing irrelevant — in that. . . . 
 
 "When a trial is likely to be unreasonably protracted by a great 
 number of witnesses impeaching or sustaining the character of other 
 witnesses, the evil is not remedied by any principle of law prescribing the 
 exact number. Many evils of that kind must necessarily be avoided 
 by the judge determining, as a matter of fact, upon the circumstances 
 of the case, where the line of reasonableness is. As to the number of 
 experiments or experiences on many points, collateral in a certain 
 sense, but relevant in the legal sense, it is impossible in the nature of 
 
68 CIRCUMSTANTIAL EVIDENCE. No. 53. 
 
 the case for a limit to be fixed as a matter of law. But it does not 
 follow that the law excludes all evidence of which it cannot measure a 
 reasonable quantity." 
 
 PHILLIPS V. WILLOW (1887). 
 
 70 Wis. p, 34 N. W. 731. 
 
 Cole, C. J.: "This is an action to recover damages for injuries 
 sustained by the female plaintiff while passing along a public highway 
 in the defendant town. She and her husband were riding in a 
 ^* cutter, which was overturned by the runner striking or going 
 over a stone. It was claimed that this stone was in, or very near, the 
 traveled track of the highway, and constituted a defect or dangerous 
 obstruction thereof. On the part of the plaintiffs, witnesses were al- 
 lowed to testify, against the objection of the defendant, that, near the 
 time the accident occurred, they drove along the highway, — in one case 
 with a wagon, and struck the stone in question, and came near tipping 
 over; in the other case, the witness was in a cutter, and ran against 
 the stone, and was tipped over. It is claimed by the defendant's coun- 
 sel that this testimony as to what happened to others in driving against 
 the alleged defect was inadmissible, and was calculated to prejudice the 
 town, and for this reason a new trial should be awarded. We think 
 this position is sound and must prevail. ... It must be admitted that 
 the cases are not in accord upon this question. In some it is held that the 
 evidence of other accidents, or of the effect on carriages driven by 
 other persons than the plaintiff over the same road, is competent, be- 
 cause it has a tendency to show its fitness or unfitness for public travel, 
 (Kent V. Town of Lincoln, 32 Vt. 591 ; Quinlan v. City of Utica, 11 
 Hun, 217;) or tends to prove that the object was or was not naturally 
 calculated to frighten horses, (Darling v. Westmoreland, 52 N. H. 
 401; House V. Metcalf, 27 Conn. 632;) or to show knowledge on the 
 part of the city that a bridge was not properly lighted so as to be safe 
 to persons crossing it, (City of Chicago v. Powers, Adm'r, 42 111. 169;) 
 or to show the result of experience or experimental knowledge of the 
 possibility of the negligent act relied on as causing the injury (Piggot 
 V. Railway Co., 3 C. B. 229, and Morse v. Railway, 16 N. W. Rep. 
 358.) Other courts have held, as this court did in the Bloor Case, 
 that all evidence as to collateral facts, or those which are incapable of 
 affording any reasonable presumption or inference as to the principal 
 fact or matter in dispute, should be excluded, because such evidence 
 tends to draw away the minds of the jurors from the point in issue, 
 and to excite prejudice and mislead them; and, moreover, because the 
 adverse party, having had no notice of such a course of examination, 
 is not presumably prepared to meet it. . . . It is apparent that if this 
 testimony was relevant to prove a defect . . . , it would have been 
 cor.:petent [in answer] to show that these persons were not driving 
 
No. 55. CONDITIONS, EFFECTS, ETC., OF THINGS AND PLACES. 69 
 
 carefully, or had skittish teams; also that hundreds had passed over 
 this highway in safety with carriages, notwithstanding the alleged de- 
 fect. So issue after issue would be raised, and facts collateral to the 
 main issue made by the pleadings would multiply; the main issue form- 
 ing new ones, and the suit itself expanding like the banyan tree of In- 
 dia, whose branches drop shoots to the ground which take root and 
 form new stocks till the tree itself covers great space by its circum- 
 ference." ^ 
 
 BEMIS V. TEMPLE (1894). 
 
 62 Mass. 342, 38 N. E. p^o. 
 
 Tort for injuries caused by the fright of the plaintiff's horse 
 at a flag suspended by the defendant across a street. The plaintiff 
 called as a witness one Hamilton, who testified that he was 
 ®* a teamster residing in Spencer; and that during the summer 
 and fall of 1892 he drove frequently through that portion of Main 
 Street over which the flag was suspended, sometimes as often as 
 five or six times daily. The plaintiff then asked him the following 
 question: " Have you ever observed other horses than the plaintiff's^- 
 which were reasonabl y safe and gentle for driving, to be frightened at 
 this flap- when it was being swaved gently bv the breeze, and not being 
 blown violently ?" The defendant objected to this question; the judge 
 ex cluded it ; and the plaintiff excepted. 
 
 Knowlton, J. : "To maintain his case the plaintiff was obliged to 
 show that the flag hung across the street was an object which was so 
 likely to frighten horses as to render driving upon the street unsafe, 
 and that in its position there it was a public nuisance. ... To ascer- 
 tain the truth, the jury must either use such knowledge as they h appen to 
 have on the subject without the aid of testimony, or ex perts must be 
 called to give their opinions if the subject is one in regard to which. 
 exp erts can be found, or witn esses mus t be permitted t" "tatp p^rtiVjilur 
 fapfQ wTiirl7 f^i^ Y have observed, each one of wTiirh js an i llustration 
 and example of the general fact in dispute. The only objection to 
 testimony of the last kind in such a case is that in testing it collateral 
 issues may be raised. Such an objection in many cases is a sufficient 
 reason for excluding the testimony. Whenever a line of inquiry will 
 give rise to collateral issues of such number and difficulty that they will 
 be likely to confuse and distract the jury and unreasonably protract 
 the trial, it should not be permitted. But the mere fact that a collat- 
 eral issue may be raised is not of itself enough to justify the exclu- 
 sion of evidence which bears upon the issue on trial. Most circum- 
 stantial evidence introduces collateral is sues, and ordira''''^y '^ ''° a 
 pr actical question, depending u pon its re lati ons to the other fa rtg p pH 
 circumstances m the case, whether it sho uld be received. It may be 
 
 I — Compare the authorities cited in W., § 458. 
 
70 CIRCUMSTANTIAL EVIDENCE. No. 55. 
 
 remote from the real issue or closely connected with it, and in many 
 cases its competency depends upon the decision of questions of fact, 
 affecting the practical administration of justice in the particular case, 
 such that a Court of law will refuse to revise the ruling of the presid- 
 ing judge, but will treat his ruling as a matter of discretion." ^ 
 
 CENTRAL VERMONT R. CO. v. SOPER (1894). 
 
 8 C. C. A. 341, 59 Fed. 8;^p. 
 
 Action for the value of grain in an elevator destroyed by fire. The 
 plaintiffs claimed, in the opening of their case, that the fire originated 
 at the foot of what was known as the "lofting leg.'' This lofting 
 leg was a piece of machinery by which the grain was carried 
 from the bottom to the top of the elevator. The pulley at the bottom 
 of the lofting leg made about ninety-six revolutions per minute; and 
 the claim of the plaintiffs was that the bearings at the sides of this 
 pulley had become heated, and thereby ignited the dust which had ac- 
 cumulated upon them, from which the fire was communicated to the 
 building. The plaintiffs introduced as a witness one Aaron Linton, 
 who testified that he was for many years foreman in this elevator, and 
 well acquainted with its construction and method of operation. The 
 witness testified among other things, that the bearings of this pulley 
 at the foot of the lofting leg were beneath the elevator floor, and were 
 oiled by pouring oil into two pieces of pipe, about two feet long, which 
 led from above the floor down into the bearings. He was allowed to 
 testify, against the objection and exception of the defendant, that while 
 he was foreman of the elevator these bearings frequently became 
 heated, that there was a tendency for dust to accumulate at that point, 
 and that there was also a tendency for the pipes to become clogged and 
 filled with dust and grease. 
 
 Putnam, J.: "[The facts objected to] relate entirely to the ten- 
 dency of things, inanimate things, being in this case machinery. The 
 plaintiff in error argued as though they related to the peculiar habits 
 of certain specified human beings. The distinction is a broad one; and, 
 if it is kept in mind, the evidence was clearly admissible for the pur- 
 pose, not of showing that the employees of the defendant below were 
 negligent, but of showing . . . that it is the tendency of certain parts 
 of rapidly-running machinery to get heated, and of dust in mills where 
 grain is ground or stored to be of a highly inflammable character, . . 
 . both for the purpose of showing a point where the fire might have 
 originated and also of showing the necessity of care to guard that 
 point." = 
 
 2 — Compare the authorities cited in W., 3 — Compare the doctrine of No. 40, 
 
 § 457- a»«»- 
 
No. 57. CONDITIONS, EFFECTS, ETC., OF THINGS AND PLACES. 71 
 
 MAYNARD v. BUCK (1868). 
 
 100 Mass. 40. 
 
 Action in contract for the value of a pair of steers alleged to have 
 been lost through the defendant's negligence. It appeared that the de- 
 fendant was a drover engaged in driving cattle from Brighton 
 ' to various points between that place and Worcester; that on No- 
 vember 9, 1865, the plaintiffs by their agents intrusted to him a pair of 
 steers to drive from Brighton to Northborough for a stipulated price; 
 that he received the same, marked them by cutting in the hair the let- 
 ter H, and left Brighton, according to his custom, on the afternoon of 
 that day, with a drove of one hundred and twenty-three cattle. The 
 evidence left it uncertain whether the steers were in the drove or had 
 been stolen from the defendant's yard at Brighton before he started. 
 The defendant offered evidence, not controlled by the plaintiff's evi- 
 dence, tending to show that, at about dusk of said day, as he was pro- 
 ceeding with his drove, assisted by two men and a boy, when he 
 had reached a point near the Boston and Worcester Railroad in 
 Newtonville a passing train of cars frightened and stampeded the drove 
 into the adjoining fields; that, as soon as he could with the aid of his 
 men, he got the drove back in the road and proceeded to the place 
 where he stopped with it for the night; and that upon counting the 
 drove it was found that nine cattle were missing. The defendant tes- 
 tified that the next morning he proceeded with his drove towards his 
 destination; that he had cattle to deliver at various points, as far as 
 Worcester, at which last place he arrived with the remainder of the 
 drove on Friday evening, November 1 1 ; and that early the following 
 morning he returned to seek the lost cattle, found seven of them, but 
 was unable to find the steers in question. There was also evidence 
 tending to show that the usual practice or ordinary mode of proceed- 
 ing of drovers, driving on routes from Brighton forty or fifty miles 
 therefrom, when one or a small number of cattle stray from the drove 
 and cannot be immediately found, was to deliver the rest of the drove 
 before returning to seek for the lost cattle. 
 
 Wells, J. : "The defendant insisted that the jury should be instructed 
 that, 'if he did do the things that drovers of common prudence, en- 
 gaged in the same business, ordinarily do, he was not guilty of such 
 negligence as will make him liable in this action.' But this is not the 
 legitimate application of evidence admitted to show the usual practice 
 in similar cases. . . . The effect and purpose of the evidence is to 
 aid the jury in forming their judgment of what the party was bound 
 to do, or was justified in doing, under all the circumstances of the case. 
 What had been done by others previously, however uniform in mode it 
 may be shown to have been, does not make a rule of conduct by which 
 the jury are to be limited and governed. It is not to control the judg- 
 
72 CIRCUMSTANTIAL EVIDENCE. No. 57. 
 
 ment of the jury, if they see that in the case under considerati on it i s 
 not such conduct as a prudent man would adopt in his own aftairsijir 
 not such as a due regard to the obligations of those employed in the 
 affairs of others would require them to adopt. It is evidence of what 
 is proper and reasonable to be done, from which, together with all the. 
 other facts and circumstances of the case, the jury are to determine 
 whether the conduct in question in the case before them was projDer 
 and justifiable. We think the instruction asked for, in this particular, 
 .was not such as should have been given." * 
 
 ^—Compare the authorities cited in W., § 461. 
 
'No. 58. BOOK I : admissibility, part i : relevancy. 73 
 
 TITLE II. 
 
 TESTIMONIAL EVIDENCE. 
 
 ^Analysis op Elements of a Testimonial Assertion; Observa- 
 tion, Recollection^ Narration. — "There are three general groups of 
 rules to be considered, which correspond to these three general 
 processes of inference in using witnesses : 
 
 I. Admissibility of Testimonial Assertions, i. e. Witness-Qualifica- 
 tions ; 
 
 II. Impeachment of Testimonial Assertions; 
 
 III. Rehabilitation of Testimonial Assertions. 
 
 "Before proceeding to the consideration of these rules, an analysis 
 is desirable of the elements of a piece of testimonial evidence; for upon 
 this analysis will depend the grouping of topics, and from it may be sur- 
 mised something of the necessary requirements of such evidence. 
 
 "When a witness' statement is offered as the basis of an evidential 
 inference to the truth of his statement — for example, the statement of 
 A that B struck X — , it is plain that at least three distinct elements 
 are present; or, put in another way, that there are three processes, in 
 the absence of any one of which one cannot conceive of testimony. 
 First, the witness must hnow something, i. e. must have observed the 
 affray and received some impressions on the question whether B struck 
 X; to this element may be given the generic term Observation. Sec- 
 ondly, the witness must have a recollection of these impressions, the 
 result of his Observation; this may be termed Recollection. Thirdly, 
 he must communicate this recollection to the tribunal; that is, there 
 must be Communication, or Narration, or Relation (for there is no 
 single term entirely appropriate). Now the very notion of taking a 
 human utterance as the basis of belief in the truth of the fact asserted 
 impliedly attributes these three processes to the witness, — Observation, 
 Recollection, Communication.^ Whatever rules, therefore, limit the ac- 
 
 I — Quoted from W., §§ 478-430. of observing the subject to which they 
 
 2 — Rvans, Notes to Pothier, II, 202 depose, having actually observed it with 
 
 (1806): "All regard to testimony sup- adequate attention, and having a distinct 
 
 poses the general proposition that wit- and perfect memory with respect to it, 
 
 nesses, not having any motives for assert- relate what they have seen or heard with 
 
 ing what is false or suppressing what is accuracy and fidelity." 
 true, having had an adequate opportunity 
 
74 TESTIMONIAL EVIDENCE. No. 58. 
 
 ceptance of testimonial assertions must have reference to some one or 
 more of these elements. 
 
 "Moreover, in the function fulfilled by each of the three elements or 
 processes is to be found in general form the fundamental canons of 
 virhich the various detailed rules will be the applications and from which 
 they are sometimes direct deductions Thus, the notion of Observation 
 is that the external event has in some way or other impressed itself on 
 the witness' mind, to be now reproduced to us, in court. This impres- 
 sion of the witness, then (knowledge, observation, or whatever it be 
 called), should adequately represent or correspond to the fact itself as 
 it really existed or exists; and the practical rules under this head will 
 be found to have, for their common purpose, the object of ensuring the 
 probability of a fairly accurate knowledge on the part of the witness. 
 Again, the function of Recollection is to recall or reproduce the orig- 
 inal impressions of observation; and such rules as the law has laid 
 down under this head are usually therefore merely applications of this 
 fundamental notion that Recollection must fairly correspond with or 
 reproduce the original Knowledge or Observation. Finally, the func- 
 tion of Narration or Communication is to reproduce for the apprehen- 
 sion of the tribunal the Recollected results— 'themselves already repro- 
 duced from Observation — ; and the common purpose of the varied rules 
 under this head is to ensure that the story as told shall represent with 
 fair accuracy what the witness once observed and now recollects. 
 
 "The rules, thus analyzed, would however deal with the simple 
 question. Does this witness actually know, recollect, communicate with 
 sufficient accuracy? — a question requiring in each instance anew an in- 
 vestigation, and a decision based on the facts brought out. But experi- 
 ence has carved out certain rough rules of convenience which, if ap- 
 plied at the outset, may save the necessity of a detailed investigation as 
 to the sufficiency of actual knowledge, recollection, and communication; 
 for it is obvious that if we find the witness incapable — i. e. lacking in 
 the very power — of acquiring adequate knowledge or of sufficiently rec- 
 ollecting or of properly telling, then further inquiry whether he did in 
 fact know or does in fact recollect or well relate, is useless and may 
 be omitted. For instance, if A is put on the stand to testify to the 
 color of a horse, it will be unnecessary to inquire whether and where 
 and when he saw the horse, if it appears at the outset that he has been 
 blind from birth. So, too, it would be unnecessary to ask B, who is 
 put forward to testify to the results of a post-mortem - examination, 
 whether he was present and took part, if it appears at the outset that 
 he knows nothing of medicine or of surgery. When the witness is 
 found to lack the proper capacity or power, it becomes not only unnec- 
 essary but improper to consider whether he actually knows, for it is 
 impossible for him to know; we do not trust his statement that he does 
 know. Thus, in addition to the rules defining the requirements as to 
 actual knowledge, recollection, and communication, there arise other 
 
No. 58. INTRODUCTORY. 75 
 
 rules defining tlie kinds of incapacity to know, recollect, and communi- 
 cate, which exclude the witness at the outset without further inquiry. 
 
 "Of this incapacity there are three distinct sorts: First, there is an 
 incapacity affecting the general mental or moral powers, — of which in- 
 sanity, infancy, dumbness, and the like, are instances. This sort of 
 incapacity may affect the witness' power of knowing or of recollecting 
 or of communicating or of doing all three, and must be examined with 
 reference to each. Secondly, there is an incapacity involving a lack 
 of power to judge rightly on particular subjects, and arising from lack 
 of experience or training. This incapacity extends to particular topics 
 only, not necessarily to the whole subject of litigation. Thirdly, there 
 is an incapacity arising from the witness' relation to the controversy, 
 ■i. e., from marital relationship or from pecuniary interest in the subject 
 of the suit. This incapacity — now always recognized, to a limited ex- 
 tent only — is supposed to involve an inability to give any credible testi- 
 mony on the subject of the particular cause, and, when it exists, affects 
 all three elements alike. As for the names to be applied to these three 
 sorts of incapacity, there are none of general acceptance, nor is it easy 
 to select proper ones. The first may be termed Organic, as affecting 
 mental and moral functions or powers; the second Experiential, as 
 involving a lack of sufficient experience or training; the third Emo- 
 tional, as involving the dominance of untrustworthy motives. 
 
 "In accordance with the preceding analysis, the order of topics un- 
 <ier the general title of Testimonial Evidence becomes : 
 
 Sub-title I: Qualifications of Witnesses. 
 
 Topic I: Organic Capacity; including 
 
 Sub-topic A: Mental Derangement (Insanity, Disease, Idi- 
 ocy) ; 
 
 Sub-topic B : Mental Immaturity (Infancy) ; 
 
 Sub-topic C: Moral Depravity (Sex, Religion, Race, Infamy) ; 
 
 Topic II: Experiential Capacity; 
 
 Topic III: Emotional Capacity; 
 Sub-topic A: Pecuniary Interest; 
 Sub-topic B : Domestic Relationship. 
 
 Topic IV: Observation, or Knowledge. 
 
 Topic V: Recollection. 
 
 Topic VI: Narration, or Communication. 
 Sub-title II: Impeachment of Witnesses; with further subdivisions. 
 Sub-title III: Rehabilitation of Witnesses; with further subdivi- 
 sions." 
 
7d TESTIMONIAL QUALIFICATIONS. No. 59. 
 
 SUB-TITLE I: 
 
 QUALIFICATIONS OF WITNESSES. 
 Topic I: Organic Capacity. ^ 
 
 REGINA V. HILL (1851). 
 2 Den. & P- C. C. 254. 
 The proposed witness said: "I am fully aware that I have a spirit, 
 and 20,000 of them; they are not all mine; I must inquire — I can, 
 where I am; I know which are mine. Those ascend from my 
 stomach to my head, and also those in my ears. . . . They speak 
 to me constantly; they are now speaking to me. ... I know what 
 it is to take an oath ; my catechism taught me from my infancy when it 
 is lawful to swear"; he was then sworn, and gave a perfectly con- 
 nected and rational account of a transaction which he reported himself 
 to have witnessed; he was in some doubt as to the day of the week on 
 which it took place, and said: "These creatures insist upon it it was 
 Tuesday night, and I think it was Monday. . . . The spirits assist 
 me in speaking of the date; I thought it was Monday, and they told 
 me it was Christmas Eve, — Tuesday ; but I was an eye-witness" ; the 
 defence contended that the witness was non compos mentis, and that 
 as soon as any unsoundness of mind is manifested in a witness, he 
 ought to be rejected as incompetent; the Court of Criminal Appeal 
 negatived this. Campbell, L. C. J. : "It has been argued that any par- 
 ticular delusion, commonly called monomania, makes a man inadmis- 
 sible. This would be extremely inconvenient in many cases in proof 
 either of guilt or innocence; it might also cause serious difficulties in 
 the management of lunatic asylums. I am, therefore, of opinion that 
 the judge must, in all such cases, determine the competency and the 
 jury the credibility . . . The rule which has been contended for 
 would exclude the testimony of Socrates, for he had one spirit always 
 prompting him." Talfourd, J.: "It would be very disastrous if mere 
 delusions were held to exclude a witness. Some of the greatest and 
 wisest of mankind have had particular delusions." ^ 
 
 I — Typical statutes affecting this topic reason. Tlie true reason for not admitting 
 
 will be found post, in the Appendix. the testimony of a person non compos 
 
 2 — Walker, J., in Worthington v. Men- mentis in any case is because his malady 
 ser, 96 Ala. 310, 11 So. 72 (1892): involves such a want or impairment of 
 "One's infirmity may be such as to render faculty that events are not correctly im- 
 it expedient to place him under guardian- pressed on his mind, or are not retained 
 ship, and even to subject him to personal in his memory, or that he does not under- 
 restraints, and yet he may be fully com- stand his responsibility as a witness. When 
 petent to understand the nature of an the reason for the exclusion of the wit- 
 oath, to observe facts correctly, and to ness does not exist, he should be per- 
 relate them intelligently and truly. A mitted to testify." 
 
 sweeping rule of disqualification which ex- Compare the authorities cited in W., §J 
 
 eludes such a person as a witness would 492-497, and the statutes quoted post, in 
 
 be arbitrary and unsupported by sound the Appendix. 
 
No. 61. insanity; INFANCY, 77 
 
 WALKER'S TRIAL (1794). 
 
 23 How. St. Tr. 1153. 
 
 Re-examination of Thomas Dunn, an informer: Dunn (answering 
 a question, to explain his past behavior) : "I went there when I was 
 intoxicated, the same as I am now." Mr. Justice Heath : 
 "" "How long have you been intoxicated?" "Not very long; I have 
 my recollection about me, though it may seem to the Court that I may be 
 ill or may not." "Were you intoxicated when you gave your evidence 
 just now?" "I was not. . . . Drunk or sober, I will speak the 
 truth." Mr. Justice Heath : "I do not know that we can examine a 
 man that is drunk"; the counsel for the prosecution, Mr. Law, pro- 
 ceeded to ask further questions ; Mr. Justice Heath : "How can you, 
 Mr. Law, examine him after he has told you he is intoxicated? He 
 has made himself so exceedingly drunk, it is impossible to examine 
 him"; but the cross-examiner, Mr. Erskine, was allowed to proceed.^ 
 
 REX V. BRASIER (1779). 
 
 I Leach Crown Law, 4th ed., ipp. 
 
 This was a case reserved for the opinion of the twelve judges by 
 Mr. Justice BuUer, at the Spring Assizes for Reading, in the year 1779, 
 on the trial of an indictment for an assault with intent to com- 
 mit a rape on the body of Mary Harris, an infant under seven 
 years of age. "The judges assembled at Serjeants'-Inn Hall, 29th 
 April, 1779, were unanimously of opinion, that no testimony whatever 
 can be legally received except upon oath; and that an infant, though 
 under the age of seven years, may be sworn in a criminal prosecution, 
 provided such infant appears, on strict examination by the Court, to 
 possess a sufficient knowledge of the nature and consequences of an 
 oath, for there is no precise or fixed rule as to the time within which 
 infants are excluded from giving evidence ; but their admissibility depends 
 upon the sense and reason they entertain of the danger and im- 
 piety of falsehood, which is to be collected from their answers to ques- 
 tions propounded to them by the Court ; but if they are found incompe- 
 tent to take an oath, their testimony cannot be received." * 
 
 3 — Compare the authorities cited in W., of the obligation of an oath. As many 
 
 § 499. of these matters cannot be photographed 
 
 4 — Brewer, J., in Wheeler v. U. 5"., 159 into the record, the decision of the trial 
 
 U. S. 523, 16 Sup. 93 (1895): "The de- judge will not be disturbed on review, un- 
 
 cision of this question rests primarily less from that which is preserved it is 
 
 with the trial judge, who sees the pro- clear that it was erroneous." 
 
 posed witness, notices his manner, his ap- Compare the statutes cited post, in the 
 
 parent possession or lack of intelligence. Appendix; also the authorities cited in W., 
 
 and may resort to any examination which §§505-508; and the rules for Oath — ca- 
 
 will tend to disclose his capacity and in- pacity, post. No. 376. 
 telligence, as well as his. understanding 
 
78 TESTIMONIAL QUALIFICATIONS. NO. 62. 
 
 Chief Baron Gilbert, Evidence, iS9 {ante 1727) : "The second sort 
 of persons excluded from testimony for want of integrity are such as 
 are stigmatized. Now there are several crimes that so blemish 
 *^ that the party is ever afterwards unfit to be a witness, . . . and 
 the reason is very plain, because every plain and honest man affirming 
 the truth of any matter under the sanction and solemnity of an oath is 
 entitled to faith and credit, . . . but where a man is. convicted of false- 
 hood and other crimes against the common principles of honesty and 
 humanity, his oath is of no weight, because he hath not the credit of a 
 witness, . . . and he is rather to. be intended as a man profligate and 
 abandoned than one under the sentiments and convictions of those prin- 
 ciples that teach probity and veracity." 
 
 Professor Simon Gkeenleaf, Evidence, %% 373-378 (1842): "It is a 
 point of no small difficulty to determine precisely the crimes which ren- 
 der the perpetrator thus infamous. The rule is justly stated to re- 
 "* quire, that the publicum judicium must be upon an offence, imply- 
 ing such a dereliction of moral principle, as carries with it a conclusion 
 of a total disregard to the obligation of an oath.' But the difficulty lies 
 in the specification of those offences. The usual and more general 
 enumeration is, treason, felony, and the crimen falsi. In regard to the 
 two former, as all treasons, and almost all felonies were punishable 
 with death, it was very natural that crimes, deemed of so grave a 
 character as to render the offender unworthy to live, should be consid- 
 ered as rendering him unworthy of belief in a Court of Justice. But 
 the extent and meaning of the term, crimen falsi, in our law, is no- 
 where laid down with precision. In the Roman Law, from which we 
 have borrowed the term, it included not only forgery, but every species 
 of fraud and deceit. If the offence did not fall under any other head, 
 it was called stellionatus, which included "all kinds of cozenage and 
 knavish practice in bargaining.' But it is clear, that the Common Law 
 has not employed the term in this extensive- sense, when applying it to 
 the disqualification of witnesses ; because convictions, for many offences, 
 clearly belonging to the crimen falsi of the civilians, have not this ef- 
 fect. Of this sort are deceits in the quality of provisions, deceits by 
 false weights and measures, conspiracy to defraud by spreading false 
 news, and several others. On the other hand, it has been adjudged, 
 that persons are rendered infamous, and therefore incompetent to tes- 
 tify, by having been convicted of forgery, perjury, subornation of per- 
 jury, suppression of testimony by bribery, or conspiracy to procure the 
 absence of a witness, or other conspiracy, to accuse one of a crime and 
 barratry. And from these decisions it may be deduced, that the 
 crimen falsi of the Common Law not only involves the charge of false- 
 hood, but also is one which may injuriously affect the administration of 
 justice, by the introduction of falsehood and fraud. At least it may 
 be said, in the language of Sir William Scott, 'so far the law has gone. 
 
No. 64. INFAMY. 79 
 
 affirmatively; and it is not for me to say where it should stop, nega- 
 tively.' . . . 
 
 "We have already remarked, that no person is deemed infamous in 
 law, until he has been legally found guilty of an infamous crime. But 
 the mere verdict of a Jury is not sufficient for this purpose; for it may 
 be set aside, or the judgment may be arrested, on motion for that 
 purpose. It is the judgment, and that only, which is received as the 
 legal and conclusive evidence of the party's guilt, for the purpose of 
 rendering him incompetent to testify. And it must appear that the 
 judgment was rendered by a Court of competent jurisdiction. Judg- 
 ment of outlawry for treason or felony will have the same effect ; for 
 the party, in submitting to an outlawry, virtually confesses his guilt ; 
 and so the record is equivalent to a judgment upon confession. If the 
 guilt of the party should be shown by oral evidence, and even by his 
 own admission (though in neither of these modes can it be proved, if 
 the evidence be objected to), or, by his plea of guilty, whch has not 
 been followed by a judgment, the proof does not go to the competency 
 of the witness, however it may affect his credibility. 
 
 "The disability thus arising from infamy may, in general, be re- 
 moved in two modes; (i) by reversal of the judgment; (2) by a par- 
 don; [and (3) by serving the sentence]."^ 
 
 VANCE V. STATE (1902). 
 
 70 Ark. 272, 68 S. W. 37. 
 
 RiDDiCK, J.: "We take this occasion, also, to call attention to the 
 backward state of the law in this State in reference to the competency 
 of witnesses convicted of felony. The statutes which render 
 "* such witnesses incompetent belong to a class of antiquated laws 
 which suppress evidence, and which the wisdom of modern ages has 
 discredited and shown to be unreasonable and injurious. They are of 
 the same class as the laws which formerly forbade the parties to the 
 suit from testifying, and closed the mouth of the defendant on trial for 
 his life, and should be repealed, as these laws have been repealed, for 
 such matters should go only to the credit or impeachment of the wit- 
 ness, not to the exclusion of his testimony. There is no valid reason 
 why a person who knows anything material to the decision of a case 
 on trial should not be permitted to tell it, whatever may be his char- 
 acter, the jury being allowed to weigh his testimony in connection with 
 his character and antecedents. These statutes not only suppress evi- 
 dence, but the application of them often presents difficult and doubtful 
 questions, which, being decided in the hurry of trial, frequently results 
 on appeal in reversals, and in this way justice is often thwarted. 
 
 S — Compare the authorities cited in W., §§ 519-523. 
 
80 TESTIMONIAL QUALIFICATIONS. No. 65. 
 
 There are very few States that now retain such laws and we think our 
 legislators might well consider whether they should not be repealed in 
 this State also."^ 
 
 Topic II: Experiential Capacity. 
 
 KELLEY V. RICHARDSON (1888). 
 
 6p Mich. 436, S7 N. W. 514. 
 
 Campbell, J.: "The phrase 'expert testimony' is not entirely for- 
 tunate as designed to cover all cases where a witness may give his 
 opinions. . . . [First, as to impressions of cold or heat, and 
 "^ the like,] any person can give such impressions without special 
 experience or special intelligence. Beyond these every-day matters, 
 known to all men, are things which most, if not all persons can be- 
 come qualified to judge by more or less opportunities of observation, 
 local or habitual, but which require no peculiar intelligence. [Sec- 
 ondly,] then, there are branches of business or occupations where some 
 intelligence is requisite for judgment, but opportunities and habits of 
 observation must be combined with some practical experience. This 
 seems to be the beginning or lower grade of what may properly be 
 termed 'experts,' — a word meaning only the acquisition of certain 
 habits of judgment, based on experience or special observation. And 
 the scale rises as the qualifications become nicer and require greater 
 capacity or knowledge and experience, until it reaches scientific ob- 
 servers and practitioners in arts and sciences requiring peculiar and 
 thorough special training." 
 
 VANDER DONCKT v. THELUSSON (1849). 
 
 8 C. B. 812, 824. 
 
 Issue as to the existence of a law of Belgium requiring the place of 
 payment of a promissory note to be the place of presentment. The 
 plaintiff called a witness named De Keyser, who stated that he 
 "" was a native of Belgium; that he had formerly carried on the 
 business of a merchant and commissioner in stocks and bills of ex- 
 change at Brussels, but was now an hotel-keeper in London; and that 
 he was well acquainted with the Belgian law upon the subject of bills 
 and notes. On the part of the defendant, it was objected that M. De 
 Keyser was not an admissible witness to prove the foreign law, he 
 neither being a lawyer, nor a person who was bound, by reason of 
 his holding any office, to have a knowledge of the law of Belgium. 
 
 6 — Typical statutes altering the common law rule will be found post, in the Ap- 
 pendix. 
 
No. 67. EXPERIENTIAL CAPACITY. 81 
 
 Maule, J.: "The question is whether he is a person having spe- 
 cial and peculiar means of knowledge of the law of Belgium with 
 regard to bills of exchange and promissory notes, one whose busi- 
 ness it was to attend to and make himself acquainted with the 
 subject. I think that, inasmuch as he had been carrying on a busi- 
 ness which made it his interest to take cognizance of the foreign law, 
 he does fall within the description of an expert. Applying one's com- 
 mon sense to the matter, why should not persons who may be reason- 
 ably supposed to be acquainted with the subject — ^though they have not 
 filled any official appointment, such as judge or advocate or solicitor — 
 be deemed competent to speak upon it? . . . All persons, I think, who 
 practise a business or profession which requires them to possess a cer- 
 tain knowledge of the matter in hand are experts, so far as experts 
 are required."' 
 
 EVANS V. PEOPLE. (1858). 
 
 12 Mich, z'j, 36. 
 
 Manslaughter; an issue was whether the deceased died of erysi- 
 pelas or of injuries inflicted by the accused. Campbell, J.: "The re- 
 maining ground of error alleged is, that one John Hendershot, 
 *' not being shown to possess any special qualifications, was al- 
 lowed to answer a question involving an inquiry of medical science, 
 having an important bearing upon the cause of Balch's death. It 
 had been shown that he died of erysipelas, claimed by the prosecution 
 to have resulted from the injuries inflicted by Evans. The defense 
 had introduced medical witnesses, whose evidence tended to prove the 
 existence of that disease in an epidemic form in Balch's neighborhood, 
 previous to his visit to Grand Rapids, where he died two days after 
 the assault upon him. Hendershot was called as a rebutting witness, 
 and was asked, under objection, whether there was 'any case of ery- 
 sipelas about the neighborhood of the residence of the deceased, before 
 his coming to Grand Rapids, in February last;' the witness answered, 
 'No, sir; neither before nor since; no sickness within five or six miles 
 of Coban Balch's residence during the month of February, nor until 
 after that time.' The greatest difficulty encountered, in determining 
 questions of competency of testimony on subjects connected more 
 or less with medical science, is in ascertaining how far it is safe to 
 suppose unprofessional observers are able to form a reliable judgment. 
 There are some simple disorders which all persons are familiar with. 
 Others require the very highest degree of medical skill to distinguish 
 them from disorders having some resembling appearances or symptoms. 
 ... In the 'view of evidence now entertained by the best authorities, 
 it is settled that a jury should be allowed to have placed before them 
 
 7— Compare the authorities cited in W., § $64. 
 
82 TESTIMONIAL QUALIFICATIONS. No. 67. 
 
 all the means of knowledge which can be had without involving the 
 danger of leading them to form conclusions not based on solid truth 
 and not reliable as reasonably certain. . . . Circumstances may make 
 whole communities familiar with diseases not known elsewhere, . . . 
 and it often happens that persons having no general skill become very 
 familiar with particular subjects. It would be very unwise to exclude 
 such evidence merely because the range of the witness' knowledge is 
 limited. There are as many grades of knowledge and ignorance in the 
 professions as out of them. The only safe rule in any of these cases 
 is to ascertain the extent of the witness' qualifications, and within their 
 range to permit him to speak. Cross-examination and the testimony of 
 others will here, as in all other cases, furnish the best means of test- 
 ing his value. The circumstances of the case, therefore, must be looked 
 at to determine the admissibility, not only of the question put to Hen- 
 dershot, but also of his answer. As he was not examined concerning 
 his knowledge of erysipelas, or of diseases generally, he could not be 
 asked such a question, if the issue materially required from the witness 
 any such knowledge. . . . But Hendershot's answer, denying the exist- 
 ence of any disease whatever in that vicinity, stands on a different 
 footing. The difference between health and any sickness whatever 
 can hardly be regarded as open only to medical knowledge; and his 
 contradiction of the medical testimony is a contradiction of common 
 facts, and not of science."^ 
 
 Topic III : Partisanship' as Affecting Capacity. 
 
 Chief Baron Gilbert, Evidence, 119 (ante 1727); Lofft's ed. 223: 
 "Where a man, who is interested in the matter in question, would 
 also prove it, it rather is a ground for distrust, than any just 
 "*' cause of belief ; for men are generally so short-sighted, as to look 
 to their own private benefit, which is near them, rather than to the 
 good of the world, 'which, though on the sum of things really best for 
 the individual,' is more remote; therefore, from the nature of human 
 passions and actions, there is more reason to distrust such a biased 
 testimony than to believe it. It is also easy for persons, who are preju- 
 diced and prepossessed, to put false and unequal glosses upon what 
 they give in evidence; and therefore the law removes them from testi- 
 mony, to prevent their sliding into perjury; and it can be no injury to 
 truth to remove those from the jury, whose testimony may hurt them- 
 selves, and can never induce any rational belief. If it be objected, 
 that interest in the matter in dispute might, from the bias it creates, bfr 
 an exception to the credit, but that it ought not to be absolutely so tO' 
 
 8— Compare the authorities cited in W., § 568; and the doctrine of the Opinion 
 Rule post. No. 418. 
 
No. 69. INTEREST, 83 
 
 the competency, any more than the friendship or enmity of a party, 
 whose evidence is offered, towards either of the parties in the cause, 
 or many other considerations hereafter to be intimated; the general 
 answer may be this, that in point of authority no distinction is more 
 absolutely settled; and in point of theory, the existence of a direct 
 interest is capable of being precisely proved; but its influence on the 
 mind is of a nature not to discover itself to the jury; whence it hath 
 been held expedient to adopt a general exception, by which witnesses 
 so circumstanced are free from temptation, and the cause not exposed 
 to the hazard of the very doubtful estimate, what quantity of interest 
 in the question, in proportion to the character of the witness, in any 
 instance, leaves his testimony entitled to belief. Some, indeed, are 
 incapable of being biased even latently by the greatest interest; many 
 would betray the most solemn obligation and public confidence for an 
 interest very inconsiderable. An universal exclusion, where no line 
 short of this could have been drawn, preserves infirmity from a snare, 
 and integrity from suspicion; and keeps the current of evidence, thus 
 far at least, clear and uninfected." 
 
 Professor Simon Greenleaf, Evidence, % 421 (1842): "In regard 
 to the time of taking the objection to the competency of a witness, on 
 the ground of interest, it is obvious that, from the preliminary na- 
 "'' ture of the objection, it ought in general to be taken before the wit- 
 ness is examined in chief. If the party is aware of the existence of the 
 interest, he will not be permitted to examine the witness, and afterwards 
 to object to his competency, if he should dislike his testimony. He 
 has his election, to admit an interested person to testify against him, 
 or not; but in this, as in all other cases, the election must be made 
 as soon as the opportunity to make it is presented; and, failing to 
 make it at that time, he is presumed to have waived it forever. But 
 he is not prevented from taking the objection at any time during the 
 trial, provided it is taken as soon as the interest is discovered. Thus, 
 if discovered during the examination in chief by the plaintiff, it is not 
 too late for the defendant to take the objection. But if it is not dis- 
 covered until after the trial is concluded, a new trial will not, for that 
 cause alone, be granted; unless the interest was known and concealed 
 by the party producing the witness. The rule on this subject, in crim- 
 inal and civil cases, is the same. Formerly, it was deemed necessary 
 to take the objection to the competency of a witness on the voir dire; 
 and if once sworn in chief, he could not afterwards be objected to, on 
 the ground of interest. But the strictness of this rule is relaxed; and 
 the objection is now usually taken after he is sworn in chief, but 
 previous to his direct examination. It is in the discretion of the Judge 
 to permit the adverse party to cross-examine the witness, as to his inter- 
 est, after he has been examined in chief; but the usual course is not 
 to allow questions to be asked upon the cross-examination, which prop- 
 
84 TESTIMONIAL QUALIFICATIONS. No. 69, 
 
 erly belong only to an examination upon the voir dire. But if, not- 
 withstanding every ineffectual endeavor to exclude the witness on the 
 ground of incompetency, it afterwards should appear incidentally, in 
 the course of the trial, that the witness is interested, his testimony will 
 be stricken out, and the jury will be instructed wholly to disregard it. 
 The rule in equity is the same as at law; and the principle applies 
 with equal force to testimony given in a deposition in writing, and to 
 an oral examination in court. In either case, the better opinion seems 
 to be, that if the objection is taken as soon as may be after the inter- 
 est is discovered, it will be heard; but after the party is in mora, it 
 comes too late. One reason for requiring the objection to be made 
 thus early is, that the other party may have opportunity to remove it 
 by a release; which is always allowed to be done, when the objection 
 is taken at any time before the examination is completed. It is also 
 to be noted as a rule, applicable to all objections to the reception of 
 evidence, that the ground of objection must be distinctly stated at the 
 time, or it will be held vague and nugatory." 
 
 Jeremy Bentham, Rationale of Judicial Evidence, b. IX, pt. Ill, 
 c. Ill (Bowring's ed. vol. VII. pp. 393 ff.) : "In the view taken of 
 the subject by the man of law, — to judge of trustworthiness, or 
 *" at least, of fitness to be heard, interest or no interest is (flagrant 
 and stigmatized improbity apart) the only question. . . . Between two 
 opposite propositions, both of them absurd in theory, because both of 
 them notoriously false in fact, the choice is not an easy one. But if 
 a choice were unavoidable, the absurdity would be less gross to say: 
 'No man who is exposed to the action of interest will speak false,' — 
 than to say, 'No man who is exposed to the action of interest will speak 
 true.' Of a man's, of every man's, being subject to the action of divers 
 mendacity-restraining motives, you may be always sure; of his being 
 subjected to the action of any mendacity-promoting motives, you can- 
 not be always sure. But suppose you were sure. Does it follow, be- 
 cause there is a motive of some sort prompting a man to lie, that for 
 that reason he will lie? That there is danger in such a case, is not 
 to be disputed; but does the danger approach to certainty? This will 
 not be contended. If it did, instead of shutting the door against some 
 witnesses, you ought not to open it to any. An interest of a certain 
 kind acts upon a man in a direction opposite to the path of duty: but 
 will he obey the impulse? That will depend upon the forces tending to 
 confine him to that path — upon the prevalence of the one set of oppo- 
 site forces or the other. All bodies on or about the earth tend to the 
 centre of the earth; yet all bodies are not there. All mountains have 
 a tendency to fall into a level with the plains; yet, notwithstanding, 
 there are mountains. All waters seek a level; yet, notwithstand- 
 ing, there are waves. . . . Any interest, interest of any sort and quan- 
 tity, sufficient to produce mendacity? As rational would it be to say, 
 
No. 70. INTEREST. 85 
 
 any horse or dog, or flea, put to a waggon, is sufficient to' move it : to 
 move it, and set it a running at the pace of a mail-coach. . . . Take 
 virhat everybody understands, money: for precision's sake, take at once 
 fio; the £io of the day, whatever be the ratio of it to the £io of yes- 
 terday: to the present purpose, depreciation will not affect it. This 
 £io, will its action be the same in the bosom of Crcesus as of Irus? 
 in the bosom of Diogenes, as in that of Catiline? No man will fancy 
 any such thing for a moment: no man, unless, peradventure, it may 
 have happened to him to have been stultified by legal science. ... In 
 the eyes of the English lawyer, one thing, and one thing onlyj has a 
 value: that thing is money. On the will of man, if you believe the 
 English lawyer, one thing, and one thing only, has influence: that 
 thing is money. Such is his system of psychological dynamics. If you 
 will believe the man of law, there is no such thing as the fear of God; 
 no such thing as regard for reputation; no such thing as fear of legal 
 punishment; no such thing as ambition; no such thing as the love of 
 power; no such thing as filial, no such thing as parental, affection; 
 no such thing as party attachment; no such thing as party enmity; no 
 such thing as public spirit, patriotism, or general benevolence; no such 
 thing as compassion; no such thing as gratitude; no such thing as 
 revenge. Or (what comes to the same thing) weighed against the in- 
 terest produced by the value of a farthing, the utmost mass of inter- 
 est producible from the action of all those affections put together, van- 
 ishes in the scale. . . . For a farthing — for the chance oi gaining the 
 incommensurable fraction of a farthing, no man upon earth, no English- 
 man at least, that would not perjure himself. This in Westminster 
 Hall is science: this in Westminster Hall is law. According to the 
 prints of the day, £180,000 was the value of the property left by the late 
 Duke of Bridgewater. For a fraction of a farthing, Aristides, with 
 the duke's property in his pocket, would have perjured himself. One 
 decision I meet with, that would be amusing enough, if to a lover of 
 mankind there could be anything amusing in injustice. A man is 
 turned out of court for a liar, not for any interest that he has, but for 
 one which he supposed himself to have, the case being otherwise. In- 
 stead of turning the man out of court, might not the judge have con- 
 tented himself with setting him right? Would not the judge's opinion 
 have done as well as a release? The pleasant part of the story is, 
 that the fact on which the exclusion is grounded could not have been 
 true. For, before the witness could be turned out of court for sup- 
 posing himself to have an interest, he must have been informed of his 
 having none: consequently, at the time when he was turned out, he 
 must have ceased to suppose that he had any. Another offence for 
 which I find a man pronounced a liar, seems to make no bad match 
 with the foregoing : it was for being a man of honour. 'Oh ho ! you 
 are a man of honour, are you? Out with you, then — you have no 
 business here.' Being asked whether he did not look upon himself as 
 
86 TESTIMONIAL QUALIFICATIONS. No. 70. 
 
 bound in honour to pay costs for the party who called him, supposing 
 him to lose the cause, and whether such was not his intention, — ^his 
 answer was in the affirmative, and he was rejected. It was taken for 
 granted that he would be a liar. Why? Because he had shown he 
 would not be one. . . . Exceptions, self-contradictions, spring up every- 
 where under their feet: exceptions, and, as far as they extend, all reas- 
 onable. Reasonable, and why? Because, the rule itself being funda- 
 mentally absurd, everjrthing must be reasonable which goes to narrow 
 
 its extent V. Exception the fifth: — . . . Question: A man 
 
 who at the time of his examination has an interest in the cause, — is he 
 an admissible witness, he having had no interest at the time of the 
 supposed fact? Decision in the affirmative. Because he was under no 
 temptation when he had not to speak, therefore, when he is to speak, 
 knowing him to be under temptation, you are to suppose him not t» 
 be so. Just as if a pilot were to say in a storm, the vessel among the 
 breakers. Sit still, there is no danger. Why so? -Because yesterday it 
 was a dead calm. VI. Exception the sixth: Voire dire. Truth ex- 
 pected, in spite of interest. . . . When a witness produced against you 
 has an interest in the business (meaning always a pecuniary interest), 
 and you cannot get other evidence of it, or do not care to be at the 
 expense, you address yourself to the witness himself, and ask him 
 whether he has or no: if he speaks truth, he is turned out; if he 
 perjures himself, he is heard. This operation is called examining a 
 witness upon the voire dire. Voire dire is, in law French, to tell the 
 truth. A man might look a good while, even in the vocabulary of 
 English law, before he would find so silly a one. 'Come, my honest 
 frifend, I am going to put some questions to you. To the first of them, 
 the court expects yoti to speak the truth ; to the others, as you please' "*• 
 
 STEPHENS v. BERN AYS (1890). 
 
 District Court of the United States for the Eastern District of Missouri, 
 
 42 Fed. 488. 
 
 Thayer, J. : "The testimony of C. C. Crecilius, taken in connection 
 with other testimony offered by the plaintiff, clearly shows that the de- 
 ceased assigned his stock in the insolvent bank to Crecilius, the 
 cashier, with intent to evade his liability as a shareholder. Ac- 
 cording to the testimony of Crecilius, the deceased had not only been 
 
 / I — English Common Law Practice Com- inability to avail themselves of proof 
 
 / missioners, Second Report, 1853, p. 10: which, though morally conclusive, was in. 
 
 "It is painful to contemplate the amount law inadmissible. From the time, how- 
 
 of injustice which must have taken place ever, when the late Mr. Bentham first 
 
 under the exclusive system of the English turned the attention of the public to the. 
 
 law, not only in cases actually brought defects of the English law of evidence, the 
 
 into court and there wrongly decided in system of exclusion has been crumbling 
 
 consequence of the exclusion of evidence, away before the power of discussion and 
 
 but in numberless cases in which the improved legislation." 
 
 parties silently submitted to wrongs from New York Ccmmissioners on Practice 
 
No. 71. INTEREST. 87 
 
 advised before the sale that the bank had sustained considerable losses, 
 but he declared at the time of the sale that his purpose in selling was 
 to avoid his liability as a stockholder. The sale appears to have been 
 made only two days before the bank closed its doors, and no change 
 took place in the condition of the bank in the mean time. Crecilius 
 gave his notes for the stock, instead of paying for the same in money; 
 and according to his statement the notes were to be surrendered, and 
 the sale cancelled, if at the end of sixty days the deceased was then 
 assured that the bank was all right. Crecilius himself had little or no 
 means, at the time of the purchase, and was rendered utterly insolvent 
 by the failure of the bank two days later. His object in making the 
 purchase in question was to withdraw the stock from the market, and 
 save the credit of the bank, which was then in a precarious condition. 
 These facts, most of which were established by the testimony of Cre- 
 cilius, warrant the conclusion that the pretended sale was and is void- 
 able as to creditors of the insolvent bank, who are represented in this 
 proceeding by the receiver. 
 
 "A question arises, however, and was reserved at the trial, touching 
 the competency of Crecilius to testify against the executrix concerning 
 transactions between himself and the testator. The Federal [Revised] 
 Statutes [of 1878] provide (section 858), that — 'No witness shall 
 be excluded ... in any civil action because he is a party to or inter- 
 ested in the issue tried: provided, that in actions by or against execu- 
 tors, ... in which judgment may be rendered for or against them, 
 neither party shall be allowed to testify against the other as to any 
 transaction with or statement by the testator, . . . unless called to 
 testify thereto by the opposite party. ... In all other respects the 
 laws of the State in which the Court is held shall be the rules of 
 decision as to the competency of witnesses in Courts of the United 
 States.' The State law on the subject (section 8918, Rev. St. Mo. 
 1889) provides that — 'No person shall be disqualified as a witness in 
 any civil suit ... by reason of his interest in the event of the same, 
 as a party or otherwise: . . . provided that, in actions where one of 
 the original parties to the contract or cause of action in issue and on 
 trial is dead or . . . insane, the other party to such contract or cause 
 of action shall not be admitted to testify ... in his own favor; . . . 
 and, where an executor or administrator is a party, the other party 
 shall not be admitted to testify in his own favor, unless the contract 
 in issue was originally made with a person who is living and com- 
 petent to testify.' 
 
 and Pleadings, First Report, 1848, p. 246: since the statute of frauds, that is, since 
 
 "England has outstripped us in this most the Restoration. It places the law of 
 
 necessary reform. Five years ago, an ervidence at length upon a rational footing, 
 
 act of Parliament obliterated the rtile from and makes its provisions consistent with 
 
 the laws of that country. . . . Lord themselves'." 
 
 ,Brougham has spoken of it, in the fol- Typical statutes on this subject will be 
 
 lowing language: 'This is certainly the found post, in the Appendix to this 
 
 greatest measure that has been carried volume, 
 under' the head of judicial procedure 
 
88 TESTIMONIAL QUALIFICATIONS. No. 71. 
 
 "The first clause of the proviso of section 8918, supra, as heretofore 
 construed by the State Courts, has much greater scope than the Federal 
 statute above referred to. Thus, in Meier v. Thieman (90 Mo. 434, 
 2 S. W. Rep. 435), it was held that by the proviso in question a person 
 was rendered incompetent to testify as to transactions with a decedent 
 in a suit brought by his heirs, although the person tendered as a wit- 
 ness was not a party to the suit. The decision appears to be based on 
 the ground that a witness, to be excluded by the State law, need not be 
 a party to the record, but will be excluded as a witness to all con- 
 tracts or transactions between himself and a deceased person, when the 
 witness has an interest in the result of the suit, whether he is or is not 
 a party to the record. Hence it is important to determine, in the first 
 instance, whether the competency of Crecilius to testify as to trans- 
 actions between himself and the decedent is to be tested by Federal or 
 State law. The rule is that, where Congress has legislated on the sub- 
 ject, — that is, has enacted a law covering the particular case, — such 
 law must prevail in the Federal Courts, notwithstanding it differs from 
 the State law. The State laws control in determining the competency 
 of witnesses only in cases like that of Packet Co. v. Clough (20 Wall. 
 537), which do not fall within any provision of the Federal laws. 
 
 "The case at bar is clearly within the terms of section 858. The effort 
 is to exclude Crecilius as a witness on the ground of interest; but the 
 first clause of the section declares that interest shall be no disqualifica- 
 tion 'in any civil action,' and the only exception to that rule is that 
 mentioned in the proviso, — that a person called as witness shall not be 
 allowed to testify as to any transactions with or statement by a de- 
 cedent, if the suit is against his executor or administrator, and the wit- 
 ness is himself an opposing party to the suit, unless the witness is 
 called upon to testify by the executor or administrator. Whatever view, 
 therefore, the Court might entertain as to the competency of the wit- 
 ness under the State law, it is compelled to hold that he is made a 
 competent witness by the Federal statutes. Judgment will accordingly 
 go against the executrix for the amount of the comptroller's assess- 
 ment; that is, for $3,500, with interest at 6 per cent per annum, to be 
 computed from September 24, 1889, to this date."^ 
 
 J — Raymond, J., in Owens v. Owens, easy prey for the dishonest and unscrupu- 
 
 44 W. Va. 88, 95 (1878) : "The law in lous." 
 
 the exception to the privilege to testify Corliss, J., in St. John V. Lofland, 5 
 
 ■was intended to prevent an undue ad- N. D. 140, 64 N. W. 930 (1895): "Stat- 
 
 vantage on the part of the living over the utes which exclude testimony on this 
 
 dead, who cannot confront the survivor, ground are of doubtful expediency, 
 
 or give his version of the affair, or expose There are more honest claims defeated by 
 
 the omission, mistakes, or perhaps false- them by destroying the evidence to prove 
 
 hoods of such survivor. The temptation such claims than there would be fictitious 
 
 to falsehood and concealment in such cases claims established if all such enactments 
 
 is considered too great to allow the sur- were swept away and all persons rendered 
 
 viving party to testify in his own behalf. competent witnesses. To assume that in 
 
 Any other view of this subject, I think, that event many false claims would be 
 
 ■would place in great peril the estates of established by perjury is to place an ex- 
 
 the dead, and would in fact make tliem an tremely low estimate on human nature, 
 
No. 73. INTEREST. 89 
 
 PEOPLE V. TYLER (1869). 
 36 Col. 528. 
 
 The Court was asked to construe the following statute of 1865-6, 
 p. 865: 
 
 "Section i. In the trial of all indictments, complaints, and other 
 • proceedings against persons charged with the commission of 
 
 crimes or offenses, the person so charged shall, at his own request, but 
 not otherwise, be deemed a competent witness, the credit to be given to 
 his testimony being' left solely to the jury, under the instructions of the 
 Court. 
 
 "Sec. 2. Nothing herein contained shall be construed as compelling 
 any such person to testify." 
 
 Sawyer, C. J. : "The policy of such a statute has been considerably 
 discussed by law writers and others, and, to our minds, the- strongest 
 objection that has been urged against it, is, that it places a party 
 charged with crime in an embarrassing position; that, even when in- 
 nocent, a party upon trial upon a charge for some grave offence may 
 not be in a fit state of mind to testify advantageously to the truth even, 
 and yet if he should decline to go upon the stand as a witness, the jury 
 would, from this fact, inevitably draw an inference unfavorable to him, 
 and thus he would be compelled, against the humane spirit of the com- 
 mon law, to furnish evidence against himself, negatively at least, by 
 his silence, or take the risk, under the excitement incident to his posi- 
 tion, of doing worse, by going upon the stand and giving positive tes- 
 timony." 
 
 COLLINS V. PEOPLE (1881). 
 
 98 III. 584, 587. 
 
 ScHOLFiELD, J. : "Herman Young, Alexander Lacomb, and plaintiff 
 in error, were jointly indicted, by the grand jury of Cook county, for 
 burglariously entering the store of Cohn, Wampold & Co., in the 
 city of Chicago, on the night of the nth of May, 1879, ^nd steal- 
 ing therefrom certain goods. Young and plaintiff in error were placed 
 upon their trial, and, by the verdict of a jury, they were found guilty, 
 and the punishment of each was fixed at ten years' confinement in the 
 
 and a very high estimate on human inge- impossible, to parry if his testimony is 
 nuity and adroitness. He who possesses no a tissue of falsehoods, — the sword of cross- 
 evidence to prove his case save that which examination. For these reasons, which lie 
 such a statute declares incompetent is en the very surface of this question of 
 remediless. Bu,t those against whom a policy, we regard it as a sound rule to be 
 dishonest demand is made are not left ut- applied in the construction ' of statutes of 
 terly unprotected because death has sealed the character of the one whose interpre- 
 the lips of the only person who can con- tation is here involved, that they should 
 tradict the survivor, who supports his not be extended beyond their letter when 
 claim with his oath. In the legal armory, the effect of such extension will be to 
 there is a weapon whose repeated thrusts add to the list of those whom the act 
 be will find is difficuU, and in many cases renders incompetent as witnesses." 
 
90 TESTIMONIAL QUALIFICATIONS. No. 73. 
 
 penitentiary. The Court awarded plaintiff in error a new trial, but as 
 to Young judgment was entered upon this verdict. Subsequently, 
 plaintiff in error was placed upon trial under the indictment, alone, 
 and he was again found guilty, by' the verdict of the jury, and his pun- 
 ishment, this time, was fixed at twelve years' confinement in the peni- 
 tentiary. The Court overruled motions for a new trial and in arrest of 
 judgment, and entered judgment upon this verdict. This writ brings 
 before us, for review, the record of that judgment. The only evidence 
 directly and positively connecting plaintiff in error with the burglary, 
 is that furnished by the testimony of Lacomb, his co-defendant. No 
 nolle prosequi has been entered as to Lacomb, and he has never been 
 tried under the indictment. He has pleaded not guilty, and the issue 
 thus presented is still pending. It is therefore insisted that he was in- 
 competent as a witness. We do not deem it necessary to inquire what 
 was the common law in this respect, since we are of opinion that 
 the question is conclusively settled against plaintiff in error by our 
 statute. It provides: 'No person shall be disqualified as a witness in 
 any criminal case or proceeding by reason of his interest in the event 
 of the same, as a party or otherwise, or by reason of his having been 
 convicted of any crime; but such interest or conviction may be shown 
 for the purpose of affecting his credibility; provided, however, that a 
 defendant in any criminal case or proceeding shall only at his own re- 
 quest be deemed a competent witness.' ... If at common law Lacomb 
 would have been an incompetent witness, it must have been because he 
 was interested in the event of the suit, and under the above language it 
 is wholly unimportant whether that interest arose from his being a 
 party or otherwise, for in either event he is rendered competent. The 
 proviso adds force to this view; it shows that it was intended that all 
 defendants should be allowed to testify, for otherwise the proviso was 
 wholly unnecessary. Under that section a defendant is unquestionably 
 entitled to have the benefit, for what it is worth, of the evidence of a 
 co-defendant; and the same right is equally clearly given to the State. 
 The infamy arising from convicted guilt, and the interest resulting 
 from being a party to the same case or proceeding, may now be consid- 
 ered for the purpose of determining what credence should be given to 
 the testimony of the witness, but they no longer furnish any ground 
 for excluding his testimony."^ 
 
 Chief Baron Gilbert, Evidence, 133 {ante 1727) : "The second 
 corollary to this general rule [of exclusion from interest] is that 
 husband and wife cannot be admitted to be witnesses for or 
 against each other; for if they swear for the benefit of each 
 other, they are not to be believed, because their interests are absolutely 
 the same, and therefore they can gain no more credit when they attest 
 for each other than when any man attests for himself." 
 
 I — Compare the authorities cited in W., § 580. 
 
No. 76. HUSBAND AND WIFE. 91 
 
 WILLIAM & MARY COLLEGE v. POWELL (1855). 
 
 12 Graft. 372, 383. 
 
 Lee, J. : "Thomas J. Powell is offered as a witness [for his wife's 
 estate] in support of the settlement - made by him upon his wife, 
 [which is now sought to be set aside as void against creditors, the 
 • " husband being insolvent] . For this purpose he was clearly incom- 
 petent. . . . That he was not himself personally interested because he 
 was bound for the college debt in any case, or that his interest was 
 the same either way, does not vary the case. The authorities cited 
 show that his incompetency does not rest upon the narrow ground of 
 a personal and direct interest, but upon other and different principles. 
 Indeed,^ the incompetency has been maintained even where the hus- 
 band's interest was the other way. Thus, in an action by the trustee 
 for a wife against the sheriff for taking goods which were her sep- 
 arate property, under an execution against the husband, the husband 
 was held to be an incompetent witness for the plaintiff (the wife being 
 regarded as the real plaintiff), although he , had an interest on the 
 other side, in having his debt satisfied by the levy of the execution."" 
 
 English Common Law Practice Commissioners, Second Report, 
 1853, p. 11: "The highly satisfactory result of these more enlarged 
 views [represented by the abolition of disqualification by interest 
 '" in general] induces us to consider whether an exception pre- 
 served by the late statute, namely, the exclusion of husband and wife as 
 witnesses for or against each other, may not be abolished. . . . The in- 
 competency of husband and wife to be witnesses for one another is said 
 to rest on three grounds: ist. Identity of interest; 2d, the consequent 
 danger of perjury; 3d, the policy of the law, which, as it is said, 'deems 
 it necessary to guard the security and confidence of private life, even 
 at the risk of an occasional failure of justice,' and which rejects such 
 evidence, because its admission would lead to domestic disunion and 
 unhappiness. The first two grounds are manifestly no longer tenable, 
 since the parties to suits have been themselves made competent to give 
 evidence. It remains to be considered how far the third ground should 
 be allowed to exclude testimony which may be essential to justice. 
 In the first place, it seems clear that no disturbance of domestic hap- 
 piness need be apprehended from permitting husband and wife to 
 call one another as witnesses. The evidence may in many cases be 
 indispensable. A wife often keeps her husband's books, conducts 
 his business in his absence, pays or receives money for him. Even 
 in matters in which she may take a less active part, her testimony 
 may be the only one to prove facts essential to the vindication of her 
 husband's rights, or it may be valuable as confirmatory of the evidence 
 
 2 — Compare the authorities cited in W., §§ 600-620. 
 
92 TESTIMONIAL QUALIFICATIONS. No. 76. 
 
 of Other witnesses: so, the testimony of the husband may be material 
 to the wife in matters relating to her separate estate, to the proof 
 of her coverture, if sued as a feme sole, and the like. It seems diffi- 
 cult to assign any reason why the law should be more tender of the 
 domestic happiness of married persons than they are themselves dis- 
 posed to be; the only danger that can be suggested is, that evidence 
 might be extracted from the witness, by the adverse party, prejudicial 
 to the interest of the married plaintiff or defendant, and that some 
 bitterness of feeling might arise in consequence ; but of the, probability 
 of such a result the married couple are themselves the best judges. 
 Should any fact be thus brought to light which would otherwise have 
 remained unproved, the interests of truth will be thereby promoted, 
 and any transient interruption of conjugal harmony from such a cir- 
 cumstance or from disappointment occasioned by the evidence falling 
 short of what was expected, would be a trifling evil compared to the 
 mischief which must result from the exclusion of testimony essential 
 to the ends of justice and truth."^ 
 
 Topic IV : Testimonial Knowledge. 
 
 *"Oeservation, Opportunity to Observe, and Knowledge. It is 
 obviously impossible to speak with accuracy of a witness' 'knowl- 
 edge' as that which the principles of testimony require. When a 
 '* thing is known to be, it is; and that would be the end of inquiry, 
 witness cannot be assumed beforehand, by the law, to know things; 
 the most it can assume is that he thinks he knows. But it will ask 
 that each one offered shall be one prima facie likely to know, — in 
 short, shall have had an opportunity of observing what was or what 
 happened and shall have directed his attention or observation to the 
 matter. This is as far as the law can go. Accordingly, the rules 
 upon the subject in hand are all concerned, not strictly with the wit- 
 ness' knowledge, but with his opportunities of observing and his actual 
 observation. For example, if it is a question of the aggressor in an 
 affray, what the tribunal will ask for is, not persons who know who 
 the aggressor was, but persons who have been so situated that they 
 had an opportunity of observing and did observe the affair." 
 
 BUSHNELL'S TRIAL (1656). 
 
 5 How. St. Tr. 6^3, 641. 
 
 Bushnell, arguing: "William Pinchin acknowledgeth himself to be 
 absent, and yet he swears [to my unlawful act at Box] as if he had 
 
 3— Typical statutes affecting the subject Compare the privileges, post, Nos. 464,. 
 
 will be found in the Appendix of this 509. 
 volume. 4 — Quoted from W., § 630. 
 
No. 81. KNOWLEDGE. 93 
 
 been at Box I am not so much a lawyer as to know how far 
 '^ forth an oath will extend, or to what it will amount, if a man 
 depose nothing but what he hath received by hearsay. . . . 'He is a 
 false witness, not only he who tells a lie, but also he who testifies a 
 truth whereof he hath not a certain and undoubted knowledge, — ^that 
 is, if he testify that which he hath neither seen nor heard nor hath 
 had any experience of.' Which I speak . . . only to evidence thus 
 much unto thee, that, be it true or be it false, yet William Pinchin 
 could be no competent witness of it, because by his own confession 
 he was at the same time at another place about four or five miles off." 
 
 BUSHEL'S CASE (1670). 
 
 6 How. St. Tr. ppp, 1003. 
 
 Vaughan, C. J.: (noting the difference between a juryman and a 
 
 witness) : "A witness swears but to what he hath heard or seen, — 
 
 generally or more largely, to what hath fallen under his 
 
 Thomas Starkie, Evidence, fp, 127 (1824) : "To render the com- 
 munication of facts perfect, the witnesses must be both able and will- 
 ing to speak or to write the truth. It is necessary that they 
 " should possess, in the first place, the means and opportunity of ac- 
 quiring a knowledge of the facts. ... A witness who states facts 
 ought to state those only of which he has personal knowledge; and 
 such knowledge is supposed, if not expressly stated, upon the examina- 
 tion in chief; and upon cross-examination his means of knowledge may 
 be fully investigated, and if he has not sufficient and adequate means 
 of knowledge, his evidence will be struck out." 
 
 PARNELL COMMISSION'S PROCEEDINGS (1898). 
 
 36th day. Times' Rep. pt. 10, p. 18. 
 
 The Irish Land League and its , leaders being charged with com- 
 plicity in certain crimes, particularly in the Phoenix Park assassina- 
 tion of 1882, certain of the known criminals testified that their 
 °^ body, the Invincibles, had received assistance-money from the 
 League; it had turned out, on cross-examining one of them, that 
 his testimony to the receipt of this money from the League officers, 
 was not based on his own knowledge at all, but merely on what 
 he had heard from others; another of these persons was now asked 
 on direct examination as follows: Sir H. James: "Tell me of your 
 own knowledge whether you know of his receiving any money from 
 the Land League." Sir C. Russell: "My Lords, I would ask my 
 learned friend to be particular as to that question 'of his own knowl- 
 edge' after the experience we had of Delaney's evidence. 'Did he 
 
94 TESTIMONIAL QUALIFICATIONS. No. 81. 
 
 see any one pay him?' is the proper form of question." Sir H. James: 
 "I think not." Sir C. Russell: "With great deference, my Lords, it is. 
 We had a deliberate statement the other day in answer to a similar 
 question put to a witness, 'Did you know this ?' and 'Did you know 
 that?' and afterwards in cross-examination, it turned out that he did 
 not know it of his own knowledge, but it was what had been told him. 
 I want to guard against a repetition of that. The proper form of 
 question as I submit is, 'Did he see any money paid ?' " Sir H. 
 James (to the witness) : "You understand what I mean — do you 
 know this of your own knowledge?" Sir C. Russell: "I am objecting 
 to the form of the question." President Hannen : "It is a very usual 
 form of question." Sir C. Russell: "I respectfully say, in view of 
 the reasons I have given, that the proper question is, 'Did he see any 
 money paid?'" President Hannen: "I shall not interfere with the 
 discretion of counsel in asking a question in a manner which is quite 
 usual." Sir C. Russell: "I have pointed out the danger — the great 
 danger — of putting the question in the form in which my learned 
 friend is putting it." President Hannen : "Precisely so ; and you 
 have also shown where the safeguard lies, namely, in cross-examina- 
 tion."2 
 
 CARPENTER'S ESTATE (1892). 
 
 ^4 Cal. 414, 2p Pac. iioi. 
 
 A will was contested on the grounds of insanity and undue influ- 
 ence. Temple, C. : "The allegation of mental incompetency was sup- 
 ported, in a large degree, by the opinion of witnesses claimed 
 '''' to be intimate, as to his mental condition. Objection was made 
 in the case of each witness on the ground that the witness was not 
 shown to be an intimate acquaintance, within the meaning of sub- 
 division 10, § 1870, Code Civil Proc, which makes competent 'the 
 opinion of an intimate acquaintance respecting the mental sanity 
 of a person, the reason for the opinion being given.' What is an 
 'intimate acquaintance' has not been very clearly settled. The re- 
 quirement that such an acquaintance shall be an intimate acquaint- 
 ance does not seem to exist elsewhere. The witnesses are [at 
 common law] only required to have had sufficient opportunity to ob- 
 serve the person whose sanity is in question. Diiiferent rulings have 
 been made as to what shall be considered a sufficient showing of op- 
 portunity of observation to enable a witness to form an opinion which 
 can be received as evidence; or, expressed in the language of our Code, 
 what degree of intimacy there must be. In general, the idea seems 
 to be that no rule can be prescribed on this subject. . . . Now, 
 when we take into consideration the rule as it exists in most juris- 
 
 z— Compare the authorities cited in W., %% 637-659. 
 
No. 83. KNOWLEDGE. 95 
 
 (dictions where the common law prevails, we must conclude that our 
 Code has attempted what has been said to be impracticable, — to estab- 
 lish a rule as to what opportunities of observation shall entitle a 
 •witness to speak. . . . Since it requires the drawing of a definite line 
 between things which are separated only by degrees of difference, the 
 rule is and must remain more or less indefinite. A very large dis- 
 cretion must be conceded to the trial Court."^ 
 
 LORD FERRERS v. SHIRLEY (1731). 
 
 ,^* Fitzgibbon, ip^. 
 
 \^ 
 
 jh "Amongst other witnesses was called one J. J., who would have 
 
 swore to the handwriting of one J. Cottington, whose name was 
 ~ to the deed [of Robert Earl Ferrers] as a witness, because 
 °" he had seen several letters wrote by J. Cottington. There- 
 upon he was asked, whether he had ever seen the said Cottington 
 write; to which he answered, that he never did, nor never saw 
 the person that wrote the said letters; but that his master, to 
 whom the said letters were wrote for the rent of a part of the 
 estate of the late Earl Robert Ferrers, which his said master 
 held, informed him, they were the letters of J. Cottington, the Lord 
 Ferrers's steward, who was the person pretended to have attested the 
 deed in 'question. Hereupon it was objected to his testimony, be- 
 cause he could not say with any certainty, whether or no the writer 
 of the letters was the same person that attested the deed; for that the 
 J. Cottington, that was supposed to write the letters, might get some 
 other person to write those very letters for him; and the counsel in- 
 sisted, that in all cases, where a witness would swear to the handwrit- 
 ing, he_must_beable to say, that he saw such person write^ The_CQjiEt 
 -"feiie^d lthe said~jr~]. becau sejhe_a}urd not^^ascerlain, the id^ntity—of 
 the person. But my Lord Raymond said, that it is not necessary 
 in all cases that the witness have seen the person write, to whose 
 hand he swears; for where there has been a fixed correspondence by 
 letters, and that it can be made out that the party writing such letters 
 is the same man, that attested a deed, that will entitle a witness to 
 swear to that person's hand, tho' he never saw him write. Page, 
 Justice, said, if a subscribing witness to a deed lives in the West- 
 Indies, whose handwriting is to be proved in England, a witness here 
 may swear to his hand, by having seen the letters of such person 
 ■wrote by him to his correspondent in England, because under the 
 special circumstances of that case, there is no other way, or at least, 
 the difficulty will be great, to prove the handwriting of such subscrib- 
 ing witness. But my Lord Raymond diiifered, and said, that those 
 special circumstances could not vary the reason of the thing." 
 
 3 — Compare the authorities cited in W., § 689. 
 
96 TESTIMONIAL QUALIFICATIONS. No. 84. 
 
 EAGLETON v. KINGSTON (1803.) 
 
 8 Ves. Jr. 473. 
 
 Eldon, L. C. : "When I first came into the profession, the rule 
 as to handwriting in Westminster Hall in all the Courts was this : You 
 called a witness, and asked whether he had ever seen the party 
 °* write. If he said he had, whether more or less frequently, that 
 was enough to introduce the further question, whether he believed the 
 paper to be his handwriting. ... Or you might ask a witness who 
 had not seen him write for a length of time, if you could not get a 
 witness of a subsequent date. . . . This rule was laid down with so 
 much clearness that till very lately I never heard of evidence in West- 
 minster Hall of comparison of handwriting by those who had never 
 . seen the party write." The same judge, in Wade v. 'Broughton, j 
 , Ves. & B. 172 (1814) : "Where there has been correspondence by 
 ' letters the contents of which are such as to render it probable that 
 they were received [by the genuine person], perhaps impossible to 
 suppose the contrary, that course of correspondence will do; and that 
 has grown up in modern times." 
 
 ROWT'S ADMINISTRATRIX v. KILE'S ADMINISTRATOR 
 
 (1829). 
 
 I Leigh 225. 
 
 CoALTER, J.: "The reason why a witness must see another write in 
 order to form an opinion of the character of his handwriting is not, I 
 apprehend, because seeing the party write gives you a knowledge 
 of the character of his hand; he must see the handwriting itself, 
 after the act of writing is performed, in order to acquire that knowl- 
 edge. But when he sees the manual operation himself, he knows 
 that the handwriting which he at the same time or afterwards inspects 
 is the handwriting of the party. He thus acquires a knowledge . . . 
 of a handwriting which he knows to be that of a certain individual. 
 . . . Being accustomed to see the operation is only full evidence that 
 the writing which you have thus seen and the character of which 
 is more or less distinctly impressed on your mind, according to cir- 
 cumstances, is the character of the manual writing of that individual. 
 [On the other hand] in the course of business and correspondence 
 you acquire an equally perfect knowledge of the handwriting of the 
 individual. . . . But this writing may have been performed by the 
 clerk of the person in whose name it is; and if so, you have no 
 knowledge of the handwriting of that person, though you have of that 
 of his clerk. . . . [and the relevancy of such knowledge] would be en- 
 
No. 87. KNOWLEDGE ; RECOLLECTION. 97 
 
 tirely defeated by proof that the letters were written by the clerk, 
 and is weakened in proportion to any doubts that may exist whether 
 the party whose handwriting is to be proved wrote the letters or not."* 
 
 DE BERENGER'S TRIAL (1814). 
 
 Gurney's Rep., 188. 
 
 In this celebrated trial for swindling, De Berenger, Lord Cochrane, 
 and others were charged with having falsely circulated a report of the 
 death of Napoleon in order temporarily to raise the price of stocks 
 ^" and sell on the risen market. It was proved that on the day of the 
 rise the defendants had sold more than £1,600,000 of stocks, recently 
 bought; to prove the prices on those days, a witness was called who had 
 been "employed by the House to take the prices of the day at the Stock 
 Exchange.'' Q. "Where do you get those accounts from?" A. "I, 
 collect them from the Stock Exchange." Q. "Do you go about all 
 day long taking the prices?" A. "I collect them at different times 
 in the cotirse of the day." Q. "You go about taking an account from 
 all the persons who are there?" A. "I take them from different 
 persons who are in the market." On objection by Mr. Serj. Best, 
 Ellenborough, L. C. J., replied: "It is all hearsay; but it is the 
 only evidence we can have; it is the only evidence we have of the 
 price of sales of any description. I do not receive it as the precise 
 thing, but as what is in the ordinary transactions of mankind received 
 as proper information ; and I suppose there is hardly a gentleman 
 . living who would not act on this paper."" 
 
 Topic V: Testimonial Recollection. 
 
 STATE v. FLANDERS (1859). 
 38 N. H. 324, 332. 
 
 Jndictment for forgery in altering Si^bon'jjigj^lfj^"^ Webber 
 with one A ndrews and one Aiken as sureties ; Webber testified positTve- 
 ~TyTHar70IcenT«gnmttre--vraS"-'iipon'' the" bond "before the aliera- 
 *' "tToflrwarrmade. ' Aiken testified that he read the bond hastily 
 
 r? 
 
 4— Doe V. SucSefmsflT^ A. & E. 727 necessary. . . . Anything, I presume, from 
 
 (1836): Williams, J.: "I adverted to an which the identity of the lyriter is estab- 
 
 expression in frequent use, and which in- lished may suffice. " 
 
 deed has almost grown into the currency Compare the authorities cited in W., §§ 
 
 of a proverb upon this subject, that the 699-705. 
 
 letter or letters 'must have been acted The rule for expert testimony based on 
 
 upon.' If, however, by this expression, specimens is considered under the Opinion 
 
 it be meant to imply that any business rule, post, of Nos. 427-436. 
 
 must be transacted, or, in any sense of the 5 — Compare the authorities cited in W., 
 
 •word, act done, the observation is with- §§ 712-719. 
 out foundation, for nothing of the sort is 
 
98 TESTIMONIAL QUALIFICATIONS. No. 87. 
 
 when he signed it, and could not say whether it had then been altered 
 or not, although he had an impression in regard to it. The Court 
 thereupon permitted the counsel for the government to ask him, against 
 the respondent's objection, what his impression was, and he testified 
 that his impression was that it had not then been altered, but con- 
 tained an indemnity against the Barron attachment only as originally 
 written. 
 
 Sawyer, J.: "An impression as to a past fact may mean personal 
 knowledge of the fact as it rests in the memory, though the remem- 
 brance is so faint that it cannot be characterized as an undoubting 
 recollection. ... In this^ s ense the impression of a witness is evidenc e, 
 however indistinct and unreliable the recollection may be. No line 
 yean be drawn for the exclusion of any record left upon the memory 
 as the impress of personal knowledge, because of the dimness of the 
 inscription. If, therefore, the objection is to be considered as one 
 taken to the general competency of such testimony, it is clear that it 
 was properly overruled. An impression, however, may mean an un- 
 derstanding or belief of the fact, derived from some other source than I 
 i personal observation, as the information of others ; or it may mean 
 an infer.en ce or co nclusion of the mind as to the existence of the fact, 
 draMm—feoBi--a— kno wledge of 'othe r facts. When used in these senses, 
 it is not evidence."^ 
 
 ACKLEN'S EXECUTOR v. HICKMAN (1879). 
 
 63 Ala. 494. 
 
 Action laJ^mes-Hickman for the amoutit due on an account for 
 services rendered to Acklen as agent, money paid, ^ tc. i'he booTc- 
 keeper. Hinds, testified for the plaintiff, as to the account drawn 
 ^' by him, that the first indorsement on said account was in his 
 handwriting; that, having refreshed his memory by reading said 
 memorandum, he could now testify from memory that said state- 
 ment was true, and that the same was correctly dated October 30, 
 1867, and that he drew off said account from the books of the 
 day of the date of said memorandum; that on or about the 30th 
 of October, 1867, he presented said account, with said indorsement 
 on it, to said Acklen, at his residence in Huntsville; and that said 
 Acklen admitted that he owed the account, and that said account 
 was correct. Thereupon, plaintiff offered to read in evidence the 
 said memorandum, or indorsement, dated October 30, 1867. To 
 
 }this the defendant objected, because said memorandum was not legal 
 evidence; admitting that the witness could refer to said memorandum 
 to refresh his memory, but insisting that the same could not 
 erly received as evidence, because it was an ex parte statement 
 
 6 — Compare the authorities cited in W., |§ 726-729, 
 
 iioi icgai 
 lorandum | 
 be prop- \ 
 nt of the I 
 
No. 88. RECOLLECTION. 99 
 
 j witness. The court overruled the objection, and admittedthe meino -f 
 
 iranduni.;_tCLwh ich the defendant excep ted. ' 
 
 The witness further testified that several years afterwards, some 
 four or five years, the plaintiff came to Huntsville, from Nashville, 
 and, at his request, witness went with him to the residence of said 
 Acklen in Huntsville; that the account was the subject of conversation 
 between Hickman and said Acklen; that Hickman told Acklen, he 
 must have some money to go home on, and did not have money to 
 pay his expenses; that Acklen thereupon handed something to Hick- 
 man, but he (witness) can not say whether it was a bank-bill, or the 
 account sued on, or both; that he does not remember what it was; 
 and that Acklen, when he handed this something to plaintiff, said, 
 "I will pay you the balance soon." The witness said, that he could not 
 remember the day, the month, or the year, when he went with Hick- 
 man to see Acklen; and that the second indorsement on said ac- 
 count (the credit of $20) was in the handwriting of said Hickman. 
 The court allowed the witness, against the objection of the defendant, 
 to testify that he saw Hickman make said indorsement on said ac- 
 count, in Huntsville, on the same day, and soon after he and Hickman 
 left Acklen's house, and went up town on the public square; to which 
 ruling the defendant excepted. The court also allowed the witness, 
 against the objection of the defendant, in the presence of the court and 
 jury, to look at said indorsement in the handwriting of Hickman, and 
 refresh his memory by the use of said memorandum, and then to 
 testify, against the objection of the defendant, that the said visit of 
 witness and Hickman to said Acklen was made on the loth Novem- j 
 ber, 1869. The defendant objected to this evidence of the date of ; 
 said visit, and his reference to said indorsement to refresh his memory ; ( 
 because the effect was, indirectly, to get said indorsement before the 
 jury; and because no memorandum, made by said Hickman, could | 
 36 properly referred to by said witness ; and because it was not shown 
 
 fehat the witness knew said indorsement was true. These objections 
 
 \were overruled, and the defendant excepted. 
 
 Stone, J.: "The law recognizes the right of a witness to consult 
 memoranda in aid of his recollection under two conditions: First, 
 when after examining a memorandum made by himself, or known and 
 recognized by him as stating the facts truly, his memory is thereby 
 so refreshed that he can testify, as matter of independent recollection, 
 k to facts pertinent to the issue. In cases of this class the witness testi- 
 I fies to what he asserts are facts within his own knowledge, and the 
 only distinguishing difference between testimony thus given, and ordi- 
 nary evidence of facts, is that the witness, by invoking the assistance 
 of the memorandum, admits that without such assistance his recollec- 
 ■ tion of the transaction he testifies to had become more or less ob- 
 scured. In cases falling within this class, the memorandum is not 
 thereby made evidence in the cause, and its contents are not made 
 
100 TESTIMONIAL QUALIFICATIONS. No. 88. 
 
 known to the jury, unless opposing counsel call out the same on cross- 
 examination. This he may do, for the purpose of testing its sufficiency 
 to revive a faded or fading recollection, if for no other reason. 
 
 "In the second class are embraced cases in which the witness after 
 examining the memorandum cannot testify to an existing knowledge 
 of the fact, independent of the memorandum, — in other words, cases 
 in which the memorandum fails to refresh and revive the recollection 
 and thus constitute it present knowledge. ... [If the witness] testify 
 that at or about the time the memorandum was made he knew its 
 contents and knew them to be true, this legalizes and lets in both 
 the testimony of the witness and the memorandum. The two are the 
 equivalent of a present, positive statement of the witness, affirming 
 the truth of the contents of the memorandum. 
 
 "Under these rules, the Circuit Court erred in allowing the mem- 
 orandum to be given in evidence to the jury. The court erred, also, 
 in allowing the witness to refresh his recollection, by the credit in- 
 dorsed in the handwriting of Hickman. True, he stated he saw the 
 indorsement made; but he did not testify that he knew, or ever had 
 known, it contained a true statement of the facts. If he had testified 
 that he saw the indorsement made, and observed its contents, and 
 knew at the time that they were true, this would have brought the 
 testimony within the second of the rules stated above and would have 
 let in both the testimony and the memorandum, notwithstanding the 
 witness, at the time of the trial, had no independent recollection of 
 the facts shown by the indorsement.'"' 
 
 REX V. ST. MARTIN'S (1834). 
 
 2 A. & E. 210. 
 
 The witness looked at a memorandum of a lease; "he had no 
 
 memory of these thi ngs but from the book, with_out which he s hould 
 
 not of his ow n knowl edge be able to^jpeak to the fact;__but_ 
 
 on reading the entry he had jia doubt the_Jact reallyj!ap=___ 
 
 opened." Counsef, opposing this: "Even supposing this to be a 
 
 ~mwe memorandum such as the witness might refresh his memory 
 
 from, still his evidence does not go far enough. He says, after 
 
 ooking at the memorandum, that he has no doubt, but that he 
 
 7 — Rowell, J., in Davis v. Field, 56 Vt. he is enabled to swear to an actua recol- 
 
 426 (1884): "Nor was it necessary that lection; it Where the witness after refer- 
 
 the witness should have had an independ- ring to the memorandum undertakes to 
 
 ent recollection. . . . The old notion that swear to the fact, yet not because he re- 
 
 the witness must be able to swear from members it, but because of his confidence 
 
 memory is pretty much exploded. All that in the correctness of his memorandum. In 
 
 is required is that he be able to swear both cases the oath of the witness is the 
 
 ■that the memorandum is correct. There primary, substantive evidence relied upon; 
 
 seem to be two classes of cases on this in the former the oath being grounded on 
 
 subject: t.. Where the witness by refer- actual recollection, and in the latter on 
 
 ring to the memorandum has his memory the faith reposed in the verity of the 
 
 quickened and refreshed thereby, so that memorandum. 
 
 \' 
 
No. 91. RECOLLECTION. IM 
 
 has no memory of these things; so that his memory, after being re^ 
 freshed, does not supply the proof." Taunton, J.: "When_a^_boniia. 
 put into the hands of an attesting witness, and he says that he does 
 notTgcoITe^_attesti nsf, but that, from seem g his i iame thereThe h^s 
 no doubtThat he did, is n ot tha t proo j^ of his attestation ?" Counsel, 
 replying: "A naked fact may be so proved; but here the question was 
 as to the proof of the contents of an instrument, or of particulars ap- 
 pearing from those contents only." But the Court unanimously over- 
 ruled his objection. 
 
 DOE V. PERKINS (1790). 
 
 ,- 3 T. R. 754- 
 
 \ The issue being the time of expiration of certain tenant-holdings, 
 one Aldridge was offered to prove certain declarations of the tenants, 
 \ as minuted by him in a book at the time. When Aldridge was 
 
 K examined the original book was not in court; but he spoke con- 
 
 fcerning the dates of the several tenancies from extracts made by him- 
 "self out of that book, confessing upon cross-examination that he had 
 ^no memory of his own of those specific facts; but that the evidence he 
 >was giving as to those facts was founded altogether upon the extracts 
 "^Ssshich. he had made from the above mentioned book. This evidence 
 ttwas objected to at the time on the part of the defendants, upon the 
 feround that, as the witness did not pretend to speak to those facts 
 jjfrom his own recollection, he ought not be permitted to give evidence 
 ^from any extracts, but that the original book from whence they were 
 taken ought to be produced. Law and Lowndes, arguing, "insisted on 
 ^he known distinction between cases ( i ) where the witness swears from 
 his own [present] knowledge of the facts, though his memory may be 
 assisted by memoranda, and (2) where he does not speak from any 
 recollection which he has, but merely from such memoranda; in the 
 latter case it has always been required that the original minutes should 
 be produced, because of the great door which might otherwise be 
 opened to fraud and concealment;" and the Court approved the objec- 
 tion. The Court were clearly of opinion that Aldridge, the witness, 
 ought not to have been permitted to speak to facts from the extracts 
 Which he made use of at the trial. 
 
 BURROUGH v. MARTIN (1809). 
 
 2 Camp. 112. 
 
 Action on a charter-party; a witness was called to give an ac- 
 count of the voyage, and the log-book was laid before him for the 
 purpose of refreshing his memory. Being asked whether he 
 had written it himself, he said, that he had not, but that from 
 time to time he examined the entries in it while the events recorded 
 
102 TESTIMONIAL QUALIFICATIONS. No. 91. 
 
 were fresh in his recollection, and that he always found the entries 
 accurate. The Attorney-General contended, that the witness could 
 make no use of the log-book during his examination, notwithstanding 
 his former inspection of it, and that the only case where a witness- 
 could refer to a written paper for the purpose of giving evidence, was 
 where he had actually written it himself, and had thus the surest 
 means of knowing the truth of its contents. 
 
 Ellenborough, L. C. J.: "If the witness looked at the log-book 
 from time to time, while the occurrences mentioned in it were re- 
 cent, and fresh in his recollection, it is as good as if he had written 
 the whole with his own hand. This collation gave him an ample 
 opportunity to ascertain the correctness of the entries, and he may 
 therefore refer to these, on the same principle that witnesses are al- 
 lowed to refresh their memory by reading letters and other documents 
 which they themselves have written."^ 
 
 MAYOR, ETC., OF NEW YORK v. SECOND AVENUE RAIL- 
 ROAD CO. (1886). 
 
 103 N. Y. 5/3. 
 
 Action to recover damages for breach of a contract to keep certain 
 parts of the street in repair. Notice had been served upon the de- 
 fendant that if it did not repair within thirty days the depart- 
 ^^ ment of public works would make the necessary repairs, and 
 defendant would be held responsible for the expense. The defendant 
 having failed to comply with the notice, the work was done by the 
 department, and the expense thereof plaintiff claimed to recover herein. 
 
 Andrews, J. : "A more serious question is raised by exceptions 
 to the admission in evidence of a time-book kept by one John B. Wilt, 
 and of a written memorandum or account made by him, offered to 
 prove the number of days' work performed and the quantity of mate- 
 rial used. Wilt was a foreman, in the employ of the department of 
 public works, and had general charge of the repairs in question. Under 
 him were two gang foremen, or head pavers, Patrick Madden and 
 Charles Coughlan, each having charge of a separate gang of about ten 
 men employed on the work. Wilt kept a time-book, in which was 
 entered the name of each man employed. He visited the work twice a 
 ^ay, in the morning and afternoon, remaining from a few minutes to 
 half an hour each time, and he testified that while there he checked on 
 
 8— Hayes, J., in Lord Talbot v. Cusack, own handwriting, he gives credit to the 
 
 17 Ir. C. L. 213 (1864): "['To refresh truth and accuracy of his habits, and, 
 
 the memory of the witness'], that is a though his memory is a perfect blank, he 
 
 very inaccurate expression; because in nine nevertheless undertakes to swear to the 
 
 cases out of ten the witness' memory is accuracy of his notes." 
 
 not at all refreshed; he looks at it again For the foregoing cases, compare the 
 
 and again, and he recollects nothing of the authorities cited in W., §§ 734-754. 
 transaction; but, seeing that it is in his 
 
No. 92. RECOLLECTION. 103 
 
 the time-book the time of each man, as reported to him by the gang 
 foremen. He also testified that he marked the men's names as he saw 
 them, and that he knew their faces. The gang foremen did not see the 
 entries made by Wilt, but they testified that they correctly reported to 
 him each day the names of the men who worked, and if any did not 
 work full time, they reported that fact also. Upon this proof, the trial 
 judge admitted the time-book in evidence, against the objection of the 
 defendant. The trial judge also admitted in evidence, under like 
 objection, a written memorandum or account, in the handwriting of 
 Wilt, of materials used. Wilt testified that the entries in the account 
 were made from daily information furnished by the gang foremen, on 
 the occasions of his visiting the work, and that he correctly entered the 
 amounts as reported. It does not appear that he had any f)ersonal 
 knowledge of the matters to which the entries related. The gang fore- 
 men were called as witnesses in support of the account. Neither of 
 them saw the entries, and on the trial neither claimed to have any pres- 
 ent recollection of the specific quantities so reported by them. Mad- 
 den testified that he reported the correct amounts to Wilt, and it is 
 inferable from his evidence that when the reports were made, he had 
 personal knowledge of the facts reported. Coughlan also testified in 
 general terms that he reported the items correctly. But on further 
 examination it appeared that his reports to Wilt of the stone delivered 
 at the work, were made upon information derived by him from the car- 
 men who drew the stone, and who counted them, and who reported the 
 count to Coughlan, who in turn reported to Wilt. Coughlan saw the 
 carmen dump the stone, but he did not verify the count, but appears 
 to have assumed its correctness. The carmen who delivered the stone 
 were not called as witnesses. 
 
 "i. The exception to the admission of the time-book presents a ques- 
 tion of considerable practical importance. The ultimate fact sought to be 
 proved on this branch of the case, was the number of days' labor per- 
 formed in making the repairs. The time-book was not admissible as a 
 memorandum of facts known to Wilt and verified by him. His obser- 
 vation of the men at work was casual, and it cannot be inferred that he 
 had personal knowledge of the amount of labor performed. His knowl- 
 edge, from personal observation, was manifestly incomplete, and the 
 time-book was made up, mainly, at least, from the reports of the gang 
 foremen. The time-book was clearly not admissible upon the testimony 
 either of the gang foremen, or of Wilt, separately considered. The 
 gang foremen knew the facts they reported to Wilt to be true, but 
 they did not see the entries made, and could not verify their correct- 
 ness. Wilt did not make the entries upon his own knowledge of the 
 facts, but from the reports of the gang foremen. Standing upon his 
 testimony alone, the entries were mere hearsay. But combining the 
 testimony of Wilt and the gang foremen, there was, first, original evi- 
 dence that laborers were employed, and that their time was correctly 
 
104 TESTIMONIAL QUALIFICATIONS. No. 92. 
 
 reported by persons who had personal knowledge of the facts, and that 
 their reports were made in the ordinary course of business, and in 
 accordance 'with the duty of the persons making them, and in point of 
 time were contemporaneous with the transactions to which the reports 
 related; and second, evidence by the person who received the reports, 
 that he correctly entered them as reported, in the time-book, in the 
 usual course of his business and duty. . . . We are of opinion that the 
 rule as to the admissibility of memoranda may properly be extended so 
 as to embrace the case before us. The case is of an account kept in 
 the ordinary course of business, of laborers employed in the prosecu- 
 tion of work, based upon daily reports of foremen who had charge of 
 the men, and who, in accordance with their duty, reported the time to 
 another subordinate of the same common master, but of a higher grade, 
 ■who, in time, also in accordance with his duty, entered the time as re- 
 ported. We think entries so made, with the evidence of the foremen 
 that they made true reports, and of the person who made the entries 
 that he correctly entered them, are admissible. It is substantially by 
 this method of accounts, that business transactions in numerous cases 
 are authenticated, and business could not be carried on and accounts 
 kept in many cases, without great inconvenience, unless this method of 
 keeping and proving accounts is sanctioned. In a business where 
 many laborers are employed, the accounts must, in most cases, of ne- 
 cessity, be kept by a person not personally cognizant of the facts, and 
 from reports made by others. The admission of such an account 
 as legal evidence is often necessary to prevent a failure of justice. 
 We are of opinion, however, that it is a proper qualification of 
 the rule admitting such evidence, that the account must have been 
 made in the ordinary course of business, and that it should not be ex- 
 tended so as to admit a mere private memorandum, not made in pursu- 
 ance of any duty owing by the person making it, or when made upon 
 information derived from another who made the communication casu- 
 ally and voluntarily, and not under the sanction of duty or other obli- 
 gation. The case before us is within the qualification suggested. 
 
 "2. In respect to the admission of the account of material, we think 
 that part of the account based upon the reports of Madden was admissi- 
 ble on the same grounds upon which we have justified the admission of 
 the time-book. Madden, in substance, testified that he knew the facts 
 and properly reported them, and Wilt testified that he entered them as 
 reported. The part of the account of materials, the items of which 
 were furnished by Coughlan, was not strictly admissible. Coughlan 
 does not appear to have had personal knowledge of the quantity of 
 stone delivered on his part of the work, but took the count of the car- 
 man, and his reports to Wilt were based upon the reports of the car- 
 man to him. The carman was not called, and the evidence of Wilt 
 and Coughlan was mere hearsay. If the attention of the court had 
 been called by the defendant to this part of the account, and objection 
 
No. 94. RECOLLECTION. 105 
 
 had been specifically taken to the items entered upon the reports of 
 Coughlan, the objection would, we think, have been valid. But the 
 objection was a general objection to the whole account. It was clearly 
 admissible as to the items reported by Madden, and, we think, the 
 general objection and exception is not available to raise the question 
 as to the admissibility of the items entered on the report of Coughlan, 
 independently of the others."^ 
 
 Sir G. A. LewiNj Note to Lawes v. Reed^ 2 Lew. Cr. C. 152 
 (1835) : "Where the object is to revive in the mind of the witness the 
 recollection of the facts of which he once had knowledge, it is 
 "** difficult to understand why any means should be excepted to 
 whereby that object may be attained. Whether in any particular case 
 the witness' memory has been refreshed by the document referred to, 
 or he speaks from what the document tells him, is a question of fact 
 open to observation, more or less according to the circumstances. If 
 in truth the memory has been refreshed, and he is enabled in conse- 
 quence to speak to facts with which he was once familiar, but which 
 afterwards escaped him, it cannot signify, in effect, in what manner 
 or by what means these facts were recalled to his recollection. Com- 
 mon experience tells every man that a very slight circumstance, and 
 one not in point to the existing inquiry, will sometimes revive the 
 history of a transaction made up of many circumstances. . . . Why, 
 then, i^ a man may refresh his memory by such means out of court, 
 should he be precluded from doing so when he is under examination in 
 court?" 
 
 HENRY V. LEE (1810). 
 2 Chitty 124. 
 
 At the time of the trial, a material witness said he did not recollect 
 a fact; but havi ng looked a^ a pa per which he himself had not writ- 
 ten7~ he_sa3Cthat_ he jistinctly recollec^d the circumst ances, 
 "* though he had before said that he did not know whether he 
 sh ould reco ngct--tlie_circu mstances after lo okin g at the paper : and 
 Topping contended, that this was neither sufficient, nor the best evi- 
 dence. , 
 
 Ellenborough, L. C. J. : "If upon looking at any document he cani 
 so far refresh his memory as to recollect a circumstance, it is suf-l 
 ficient; and it makes no difference that the memorandum is not writ-] 
 ten by himself, for it is not the memorandum that is the evidence, buti 
 the recollection of the witness." 
 
 I — The Hearsay use of such memoranda sons is deceased or absent, is considered 
 as regular entries, where one of the per- under the Hearsay rule, post. No. 311. 
 
106 TESTIMONIAL EVIDENCE. No. 95. 
 
 HUFF V. BENNETT (1852). < 
 
 6 N. Y. 327. i 
 
 Libel, in reporting certain judicial proceedings before the Recorder 
 of New York. On the trial, before Oakley, J., after proof of publi- 
 cation, and in reply to testimony on the part of the defendant, 
 as to the correctness of the published reports, the plaintiff 
 called the recorder as a witness, and having placed in his hands a 
 copy of the alleged libellous report of the proceedings before him, 
 asked the following question: "Wherein, as you now remember, is that 
 report incorrect?" The defendant's counsel objected to the question. 
 
 Jewett, J. : "It was insisted, that the rule was, that a witness 
 could only testify to such facts as were within his knowledge and 
 that his recollection of the facts .could only be refreshed by examining 
 memoranda, either made by himself, or in his presence. Although 
 the rule is, that a witness, in general, can testify only to such facts 
 as are within his own knowledge and recollection, yet it is well settled 
 that he is permitted to assist his memory by the use of any written 
 instrument; and it is not necessary that such writing should have been 
 made by himself, or that it should be an original writing, providing after 
 inspecting it he can speak to the facts from his own recollection."^ 
 
 REX v. RAMSDEN (1827). 
 
 2 C. & P. 603. 
 
 Indictment for a conspiracy to sue out a fraudulent commission of 
 bankruptcy against two of the defendants. The petitioning creditor, who~ 
 was called on the part of the prosecution, stated, that he bought 
 *'" the debt upon which he became petitioning creditor six months 
 ago. In his cross-examination, F. Pollock, for the defendant Ramsden, 
 put a paper into his hand, which he acknowledged to be of his hand- 
 writing, and then asked him if he had not bought the debt nine months 
 before; which he admitted he had. Scarlett, A. G., for the prosecution, 
 wished to look at the paper. F. Pollock: "I submit my friend has no 
 right to see it, unless he will read it in evidence." Tenterden, L. C. 
 J.: "You put the paper into the witness' hands to refresh his memory. 
 It is very usual for the opposite counsel to see it and examine upon it, 
 and I think he has a right to see it." Scarlett, A. G., having looked 
 at the paper, asked the witness if he would swear that it was written 
 at the time it bore date. F. Pollock: "I submit that this question 
 cannot be asked without the paper being read." Lord Tenterden, 
 C. J.: "I think it may. You put the paper into the witness's hand, 
 and I think the other side may ask when it was written, without 
 being bound to read it."* 
 
 2 — For the foregoing cases compare the authorities in W., §§ 758-764. 
 
No. 98. LEADING QUESTIONS. 107 
 
 Topic VI: Testimonial Narration. 
 
 "The third element forming an essential part of all testimony is 
 the process of laying before the tribunal the witness' results of his 
 Observation and his Recollection, i. e., the process of Narration 
 "' or Communication. In this element, as in the other two, there 
 are many opportunities for defects fatal to testimonial trustworthiness. 
 Its office is to make intelligible to the tribunal the knowledge and 
 recollection of the witness, whatever that may amount to, affirmative 
 or negative, useful or trivial. Its prime and essential virtue, then, 
 consists in accurately reproducing and expressing the actual and sin- 
 cere Recollection. When the statement is found plainly or probably 
 lacking in either of these respects, namely, in its correspondence to 
 recollected knowledge or in its intelligibility, then it should be re- 
 jected. For the purpose of grouping these various rules, it may be 
 remembered that the simplest form of testimonial statement (from 
 ■which others may be conceived of as deviations) is an (i) uninter- 
 rupted narrative (2) expressed in words (3) uttered orally (4) and 
 intelligible directly by the tribunal. The inquiry therefore concerns 
 "the rules which become necessary when there is a variance in one 
 or another of the . four respects. That is to say, testimony may be 
 (i) furnished upon systematic interrogations, and not as a spontane- 
 ous utterance; or (2) it may be non-verbal, i. e., expressed dramatic- 
 ally, in conduct or gestures; or (3) it may be furnished in writing, not 
 orally; or, finally, (4) it may require interpretation, before it becomes 
 intelligible to the tribunal. Various rules will arise according as the 
 variation lies in one or another of these four features."^ 
 
 Joseph Chitty, Practice of the Law, III, 8p2 (1835) : "The as- 
 signed reason in support of the rule [against leading questions] is that a 
 witness usually has a strong feeling in favor of the party who has 
 subpoenaed him, and is disposed to swear anything that he thinks 
 will serve that party, and that a leading question in effect suggests to the 
 witness the answer that he is desired to give and invites misrepresentation. 
 The reason imputes to the counsel an unworthy motive, and to every 
 witness a supposition that he would be guilty of perjury; but perhaps 
 the better and more comprehensive reason is that many witnesses, 
 either from complaisance or indolence, are too much disposed to assent 
 ■to the proposition of the counsel and answer as he may suggest, in- 
 stead of reflecting and answering after an exertion of their own 
 memory." 
 
 2 — Quoted from W., § 766. 
 
108 TESTIMONIAL NARRATION. No. 99. 
 
 Ellenborough, L. C. J., in 25 Hansard Pari. Deb. 2Q'j (1813), 
 answering criticisms on the procedure of a Commission inquiring into 
 the charges against the Princess of Wales : "Folly, my lords, 
 has said that in examining the witnesses we put leading ques- 
 tions. The accusation is ridiculous ; it is almost too absurd to deserve 
 notice. In the first place, admitting the fact, can it be objected to a 
 judge that he put leading questions? Can it be objected to persons in 
 the situation of the Commissioners that they put leading questions? 
 I have always understood, after some little experience, that the mean- 
 ing of a leading question was this, and this only: That the judge re- 
 strains an advocate who produces a witness on one particular side of a 
 question, and who may be supposed to have a leaning to that side of the 
 question, from putting such interrogatories as may operate as an instruc- 
 tion 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 wit- 
 ness will be too complying. But even in a case where evidence is 
 brought forward to support a particular fact, if the witness is obvi- 
 ously adverse to the party calling him, then again the rule does not 
 prevail, and the most leading interrogatories are allowed.' But to say 
 that the judge on the bench may not put what questions and in what 
 form he pleases can only originate in that dullness and stupidity which 
 is the curse of the age." 
 
 Gaines, J., in Lott v. King, /p Tex. 292, 2pg, 15 S. W., 2^1 
 (1891). The question put was, "State whether or not you ever sold 
 and conveyed the headright certificate of John B. Bulrese for 
 •'"" one league and one labor of land to said Barnes Parker" ; "It 
 does not properly admit of an answer 'yes' or 'no.' . . . Whether a 
 question in that or a similar form be leading or not depends upon 
 the determination of the inquiry whether it suggests any particular 
 answer; and we think questions in that form which have been held 
 leading are not such as inquire into a single fact, but such as enable 
 the witness to state in two words, such as 'he did' or 'he did not' a 
 series or group of facts. ... As to the questions now under consider- 
 ation, we think it would puzzle the astutest lawyer who is unin- 
 formed as to the issues in the case to determine from the question 
 alone whether the examiner desired to prove that the witness had or 
 had not transferred the certificate."* 
 
 Z— Wilson's Trial, 2 Green (Scotland), ing a judge in England, upon that being 
 
 119 (1820). Mr. Murray: "I am sure- staled to him, saying, "Good God, what a 
 
 ly entitled to lead in cross-examination?"; country!'" 
 
 Lord President: "No; I never heard that 4— On the foregoing quotations, compare 
 
 with us"; Mr. Murray: "I remember hear- the authorities cited in W., §§768-779. 
 
No. 102. LEADING QUESTIONS. 109 
 
 Parnell Commission's Proceedings, 19th day, Times' Rep. pt. 5, 
 p. 221 (1888). The Times having charged the Irish Land League 
 with complicity in crime and outrage, a constable testifying to 
 ^^^ outrages was cross-examined by the opponents as to his partisan 
 employment by the Times in procuring its evidence. Mr. Lockwood: 
 "How long have you been engaged in getting up the case for the 
 Times?" Sir H. James: "What I object to is that Mr. Lockwood, 
 Without having any foundation for it, should ask the witness 'How 
 long have you been engaged in getting up the case for the Times ?' " 
 Mr. Lockwood: "1 will not argue with my learned friend as to the 
 exact form of the question, but I submit that it is perfectly proper 
 and regular. If the man has not been engaged in getting up the case 
 for the Times he can say so." Sir H. James: "I submit that my 
 learned friend has no right to put this question without foundation. 
 Counsel has no right to say 'When did you murder A. B. ?' unless 
 there is some foundation for the question. In this same way he has 
 no right to ask 'How long have you been engage in getting up this 
 case ?' for it assumes the fact." . . . President Hannen : "I do not 
 consider that Mr. Lockwood was entitled to put the question in that 
 form and to assume that the witness has been employed by the Times." 
 
 Lord Keeper Coventry, in Bishop of Lincoln's Trial (1637), 
 J How. St. Tr. 7<5p, 802 (the Bishop being charged with tampering 
 with witnesses) : "Now it may be said, said he [the defendant], 
 ^^ 'May not a man meddle nor question with a witness?' Yes; but 
 with certain limitations, for else, if witnesses be made and corrupted, 
 the jurors and judges both of them may be abused; and if that wit- 
 nesses may be led and instructed by questions, or the like, it comes to 
 all one as subornation. A solicitor may warn witnesses to come in, 
 he may incite them, and enforce them, and one as well as the other. 
 . . . But a solicitor must not instruct a witness, nor threaten him, 
 nor carry letters to him, to induce him this way or that. Yet he may 
 discourse with him, and ask him what he can say to this or that 
 point, and so he may know whether he be fit to be used in the cause 
 or no; by which means this Court is freed from the labor of asking 
 many idle questions of the witnesses to no end, if they can say noth- 
 ing to them and so spend good time to no end nor purpose. Yet he 
 may not persuade him or threaten him to say more or less than he 
 of himself was inclined unto and was by his conscience beforehand 
 bound to deliver as truth." 
 
 ALLEN V. SEYFRIED (1877). 
 
 43 Wis. 414, 418. 
 
 Action for the price of lumber sold. Cole, J.: "The motion to 
 suppress the depositions was founded principally on the objection 
 
110 TESTIMONIAL NARRATION. No. 103. 
 
 that it appeared that the witnesses had been allowed to take 
 ** and read the direct and cross interrogatories before they were 
 examined by the commissioners. The witness Becker says, in answer 
 to cross interrogatories: 'I read the direct and cross interrogatories, 
 here, to-day, before the examination began.' The witness Glaser says: 
 'I read the direct and cross interrogatories, here, to-day, and several 
 days ago.' Now, it is said that this shows such a fraudulent or im- 
 proper execution of the commission as to warrant the court in sup- 
 pressing the depositions. The practice of allowing a witness to read 
 or to know, previous to. examination, what questions will be asked him, 
 is doubtless liable to abuse, and may sometimes almost destroy the 
 value of a cross-examination. A hostile or dishonest witness, know- 
 ing in advance what questions were to be asked, would be put upon 
 his guard, and might so prepare his answers as to suppress the truth, 
 conceal his bias, or avoid self-contradiction. This is all very evident. 
 But still it is absolutely necessary, in certain cases where a witness 
 is to be examined in reference to a transaction which was the sub- 
 ject of correspondence, or which involved numerous items or dates, 
 that he should be informed beforehand of the nature and scope of the 
 questions he will be called upon to answer, in order that he may be 
 prepared for the examination; for it is obvious that without some 
 previous preparation to refresh his memory in such cases, his testi- 
 mony would be nearly or quite valueless. We think, therefore, to lay 
 down a rule that it is sufficient ground for suppressing a deposition, 
 if it appear that the witness was allowed to read and examine the 
 direct and cross interrogatories before he gave his evidence, would be 
 inconvenient and dangerous as a rule of practice.'' 
 
 INGS' TRIAL (1820). 
 
 33 How. St. Tr. P57, ppp. 
 
 Mr. Adolphus, cross-examining an alleged accomplice: "I think you 
 told us some things then [Monday, at another trial for the same plot] 
 
 that did not come to your recollection today ?" A. "That may be. 
 
 I will not pretend to say, that the next time I come up here I can 
 communicate everything as I have done to-day." Q. "Certainly not; 
 there are people that proverbially ought to have a good memory?" 
 A "Yes, certainly." Q. "You make your evidence a little longer 
 or shorter, according as the occasion suits?" A. "Yes, I mention 
 the circumstances as they come to my recollection." . . . Mr. Gurney: 
 "That is observation, and not question." Mr. Adolphus: "I am ask- 
 ing him a question." . . . L. C. J. Dallas: "You should not now ob- 
 serve on the evidence." Mr. Adolphus: "This about the digging 
 entrenchments you did not state on Monday?" A. "No, I forgot 
 that." Q. "The next time there will be a new story?" Mr. Gurney: 
 "I must interpose, my lord." L. C. J. Dallas: "All these observa- 
 
No. 105. MODES OF TESTIFYING. Ill 
 
 tions are certainly incorrect." Mr. Adolphus: "He has said it him- 
 self; 'when next I come into the box, I shall recollect other things,' 
 and upon that I put the question, whether he would tell another story 
 the next time he comes." L. C. J. Dallas: "Ask him the question 
 if you wish it." Mr. Adolphus: "Shall you tell us a new story the 
 next time?" A. "No. If anything new occurs to my mind when I 
 come to stand here, I will state it."° 
 
 ARCHER V. RAILROAD CO. (1887). 
 
 106 N. Y. 58Q, 603, 13 N. E. 318. 
 
 Action for personal injuries received while on a railroad platform. 
 DanfortHj J.: "The plaintiif offered in evidence a photograph rep- 
 resenting, as he claimed, the locus in quo of the accident. 
 The appellant alleges error in its admission. Upon the trial this 
 occurred: The plaintiff, being on the witness stand, was asked to 
 look at the photograph and "see if that describes fairly the locality?' 
 Before answering he was questioned by defendant's counsel, and said: 
 'This was not made by me; I don't know from what point it was 
 taken; I don't know to what point, as a focus, this instrument was 
 directed. (Objected to by defendant's counsel; objection overruled, 
 and defendant's counsel excepted.) A. Yes, sir.' The proposition 
 now submitted by the appellant to show error is, that 'there was not 
 sufficient proof of the point from, or the time at, which the photograph 
 was taken to entitle it to be submitted to the jury as a picture of the 
 premises as they existed at the time of the accident.' The objection 
 at the trial was a general one and within our decision in the Cowley 
 Case (83 N. Y. 464, 476), unavailing. If a fair representation of the 
 premises, it was admissible as an aid in the investigation, as much 
 so as a map or other diagram, and served in like manner to explain 
 or illustrate and apply testimony. Such drawings are uniformly re- 
 ceived and are useful, if not indispensable, to enable courts and juries 
 to comprehend readily the question in dispute as affected by evidence. 
 (People V. Buddensieck, 103 N. Y. 487, 501.) Of course, its value, 
 like the value of other evidence, depends upon its accuracy."^ 
 
 5 — On the foregoing cases, compare the the deposition, depends upon the accuracy 
 
 authorities cited in W., §§ 780-788. with which his words uttered are put into 
 
 6 — Folger, C. J., in Cowley v. People, words written. Now if he has before 
 
 83 N. Y. 478 (1881): "A witness who him a portrait or photograph of the per- 
 
 speaks to personal appearance or identity son, and it shows to him a correct copy 
 
 tells in more or less detail the minutia of that person, if it produce to his view a 
 
 thereof as taken in by his eye. What he correct description, which he testifies is a 
 
 says is a description thereof by one mode likeness, why may not that be given to the 
 
 of signs, by words orally uttered. If his jury as a description of the person by the 
 
 testimony be written instead of spoken witness in another mode of signs?" 
 
 and is offered as a deposition, it is a Compare the authorities cited in W„ 
 
 description in another mode of signs, by §§ 789-797. 
 words written; and the value of that mode, 
 
112 TESTIMONIAL NARRATION, No. 106. 
 
 ALLEN V. RAND (1824). 
 
 5 Conn. 322. 
 
 To prove a material fact, the defendants offered in evidence the 
 deposition of Mary Trowbridge; to the admission of which the plain- 
 tiffs objected, on the ground, that it was written by the agent 
 of the defendants, or of one of them. The circumstances were 
 these: On Monday, previous to the taking of the deposition, the par- 
 ties met at the house where Mrs. Trowbridge resided, with the 
 magistrate who ultimately took the deposition. He attempted then 
 to take it; but after writing a few lines, Mrs. Trowbridge became 
 faint and exhausted; and the business was adjourned to the next 
 evening. Afterwards, in the absence of the plaintiffs and their 
 counsel, and of the magistrate. Rand, one of the defendants, requested 
 Cornelia Hall, who was living in the house with Mrs. Trowbridge, 
 to write her deposition, from time to time, as she was able to give it. 
 With this request Miss Hall complied; and, at the time adjourned to, 
 the plaintiff not having attended, the paper thus written by her, was 
 presented to the magistrate, and being read to Mrs. Trowbridge, 
 was signed by her, and sworn to. Hosmer, Ch. J. : "The only 
 question raised in this case, is, whether the deposition of Mrs. Trow- 
 bridge was legally rejected. . . . Miss Hall was an agent and attor- 
 ney, authorized by her principal to do this specific act; for what is 
 an agent but a substitute or deputy, and an attorney but one who 
 is put in the place, stead or turn of another? 3 Black. Com. 25. A 
 general agent cannot be permitted to draw up a deposition; a fortiori, 
 is a special agent objectionable, who, in the situation of Miss Hall, 
 must be influenced, in some degree, by the wishes, feelings and in- 
 terest of her employer. . . . The law will not trust an agent to draw 
 up a deposition for his principal, as by the insertion of a word the 
 meaning of which is not correctly understood, or by the omission 
 of a fact that ought to be inserted, the testimony thus garbled and 
 discolored will be false and deceptive. Nor is there a possible argu- 
 ment in favor of such a proceeding. The deponent may write the 
 deposition, or procure it to be written by a disinterested person, or it 
 may be drawn up by the magistrate who takes it, or the parties 
 may agree on a fit person for this purpose. ... As the witness ought 
 to be disinterested, so must the evidence be impartial, comprising the 
 whole truth and nothing but the truth; and this can never rationally 
 be expected when a deposition is drawn up by an attorney or agent, 
 or, what is little less exceptionable, by the party himself. Sickness 
 constitutes no reason fqr the relaxation of this rule, as it produces no 
 actual necessity; and if it did, it would make no difference, as no such 
 exception to the general rule is admissible. It is much preferable 
 that in particular instances the party should even be deprived of tes- 
 timony than that a principle leading to widespread mischief should 
 
No. 108. TESTIMONIAL IMPEACHMENT. 113 
 
 be adopted; as private disadvantage is a less evil than general incon- 
 venience."'' 
 
 SUB-TITLE II: 
 
 TESTIMONIAL IMPEACHMENT. 
 
 Modes of Impeachment. ^ — "First, as preliminary to the whole 
 subject of impeachment, must be considered what persons as wit- 
 nesses are open to impeachment. In the process of discrediting 
 • a witness, the first inference must always be from some de- 
 fective testimonial quality to the assertion's incorrectness. The dif- 
 ferent possible testimonial qualities are thus to be passed in review 
 (Topic I), — Moral Character, Mental Capacity (Insanity, Intoxica- 
 tion), Emotional Capacity (Bias, Interest, Corruption), and Experi- 
 ential Capacity. These discrediting deficiencies become in their turn 
 the object of circumstantial proof, — first (Topic II), such sorts of 
 evidence as are not forbidden to be offered by extrinsic testimony, — 
 circumstances indicating Interest, Bias, and Corruption; following 
 these (Topic III), all such evidence as is more or less liable to the 
 rule excluding extrinsic testimony. — Particular Instances of Conduct 
 to show Character, — the principles here involved having an influence 
 over the whole group; next, similar facts to show Experiential Defects 
 and the like ; (Topic IV) Specific Errors of assertion used indefinitely to 
 show some general capacity for mistake or misstatement; (Topic V) 
 Prior Self-Contradictions used indefinitely for a similar purpose; and, 
 finally, (Topic VI) Admissions, i. e., prior self-contradictions of par- 
 ties." 
 
 INTRODUCTORY: PERSONS IMPEACHABLE. 
 
 FLETCHER v. STATE (1874). 
 4P Ind. 124, ISO. 
 Forgery. Buskirk, C. J. : "Upon the trial of the cause below, the 
 defendant offered no evidence of his general character, but chose to rest 
 upon the presumption which the law indulged in his favor. He 
 *"° went upon the stand as a witness, and testified in his own behalf. 
 After he had closed his evidence, the State introduced a witness who, 
 in answer to a question propounded to him, testified that he knew the 
 general character of appellant, and that it was bad. . . . The law in- 
 vests every person accused of crime with a presumption in favor of good 
 character, and the State cannot offer evidence to impeach such charac- 
 ter until the accused has put his general character in issue by offering 
 
 7— Compare the authorities cited in W., i — Quoted from W., § 88 1. 
 
 ■5803. 
 
114 TESTIMONIAL IMPEACHMENT. No. 108. 
 
 evidence in support of it. . . . These were familiar principles, well 
 kflown in the profession prior to the passage of the act of March loth, 
 1873, which gave to a defendant in a criminal cause -the privilege of 
 testifying in his own behalf. We are required, for the first time, to 
 determine what changes, if any, have been produced in the rules of 
 practice by the passage of said act. Prior to such enactment, the rights 
 of a defendant and the privileges of a witness were separate and dis- 
 tinct; but since its passage, a defendant who elects to testify occupies 
 the position of both defendant and witness, and thus he combines in his 
 person the rights and privileges of both. But while this is true, we do 
 not think it should result in any change in the law or rules of practice. 
 In his capacity as a witness he is entitled to the same rights, and is 
 subject to the same rules, as any other witness. In his character of de- 
 fendant, he has the same rights, and is entitled to the same protection, 
 as were possessed and enjoyed by defendants before the passage of the 
 act in question. When we are considering the rights of the appellant 
 in his character of defendant, we lose sight of the fact that he has the 
 right to testify as a witness; and when his privileges as a witness are 
 called in question, they should be decided without reference to the fact 
 that he is a defendant also."'' 
 
 BuLLER, J., Trials at Nisi Prius, 2^y {ante Vjdfj") : "A party never 
 shall be permitted to produce general evidence to discredit his own wit- 
 ness, for that would be to enable him to destroy the witness if 
 he spoke against hirrt, and to make him a good witness if he 
 spoke for him, with the means in his hands of destroying the credit if 
 he spoke against him." 
 
 WHITAKER V. SALISBURY (1834). 
 
 IS Pick. 545. 
 
 Putnam, J.: "When a party calls a witness whose general charac- 
 ter for truth is bad, he is attempting to obtain his cause by testimony 
 not worthy of credit; it is to some extent an imposition upon the 
 Court and jury. The law will not suppose that a party will do any 
 such thingybut will rather hold the party calling the witness to have adopted 
 and considered him as credible. . . . [But] a party is not obliged to re- 
 ceive as unimpeached truth everything which a witness called by him 
 may swear to. If his witness has been false or mistaken in his testi- 
 mony, he may prove the truth by others. It would evidently be a rule 
 that would operate with great injustice, that a party calling a witness 
 should be bound by the fact which was sworn to. No one would con- 
 tend for a rule so inexpedient." 
 
 2— Compare the authorities cited in W., S§ 889-892, 
 
No. 112. PERSONS IMPEACHABLE. 115 
 
 Chief Justice May: "Some Rules of Evidence,'' ii Amer. Law Rev. 
 264 (1876) : "But does common experience show that, from the given fact 
 that a witness is brought into court by a party, it is to be 
 "■'■ • inferred that he not only knows his character, but also that 
 that character is such that in 'in general' he is worthy of belief? 
 . . . Witnesses are not made to order, — at least, not by honest 
 people. The only witnesses who can properly be called are those 
 who happen to have knowledge of relevant facts; and who these 
 may be is predetermined by the history and course of the events 
 which are to come under examination. . . . The witnesses to the 
 material facts in dispute are such persons as happen to have been 
 cognizant of the facts, and are not such as the parties have selected 
 at their pleasure. In point of fact, it is substantially true that parties 
 call particular persons as witnesses simply because they are obliged to 
 and can call no others. If a lawsuit was a manufacture, and the party 
 bringing it could select his materials — facts and witnesses — , there might 
 be some propriety in holding him responsible for the character of these 
 materials ; but, as both are beyond his control, his responsibility for their 
 character is out of the question. . . . [Moreover,] Courts are not estab- 
 lished to give that party his case who behaves best in court. If they 
 were, it seems to us that the plaintiff stands quite as well in such a case, 
 on the score of fairness, as the defendant, who lies in wait for the profits 
 of treachery. ... [It is improper that] an untruthful or incredible or 
 unreliable witness by reason of moral infirmity may not be unmasked by 
 any party in interest. . . What more absurd than to ask a jury to find 
 the truth upon the testimony of a witness notorious for not speaking the 
 truth, all the while concealing from them the fact that he is or may be 
 a false witness? And how can it be of importance to the main purpose 
 of the trial how or by whom the fact that the witness is not to be relied 
 upon is made known?" 
 
 WRIGHT v. BECKETT (1834). 
 I Moo. & Roh. 414, 418. 
 Action of trespass quare claus. freg. The question between the par- 
 ties was, whether the plaintiff had the exclusive right to the soil of a 
 piece of marshy land. The plaintiff's counsel having examined 
 four witnesses to prove that the plaintiff and his predecessors had 
 immemorially exercised acts of ownership over it, called a fifth person, 
 of the name of Warrener, with a view to establish the same fact. War- 
 rener, however, on being examined, contradicted the other four wit- 
 nesses ; and the plaintiff's counsel thereupon asked him, whether he had 
 not given a different account of the facts to the plaintiff's attorney two 
 days before? The question was objected to by Jones Serjt, for the 
 defendant, on the ground that the obvious tendency of the question 
 put by the plaintiff was to discredit his own witness. Lord Denman, 
 C. J. however, over-ruled the objection, and the question was put. The 
 
116 TESTIMONIAL IMPEACHMENT. No. 112. 
 
 witness gave an evasive answer to the question. The plaintiff's coun- 
 sel, thereupon, called the plaintiff's attorney, and proposed to ask him 
 whether the witness Warrener had not given to him, upon the occa- 
 sion referred to, an account of the facts different from that now given 
 by him in court? Jones, Serjt., for the defendant, again objected: but 
 the Lord Chief Justice allowed the question to be put. The plaintiff's 
 attorney answered it in the affirmative, and added, that he took down 
 in writing the account so before given by Warrener, and that it was 
 read over to Warrener, who said it was quite correct, and the plain- 
 tiff's attorney now read that written account to the jury. 
 
 The Lord Chief Justice, in summing up the case to the jury, told 
 them, that they were not to look upon the statement given by War- 
 rener to the attorney before the trial, and read at the trial by the 
 attorney, as evidence of facts therein stated; they were only to re- 
 ceive that statement by way of neutralizing the effect of the evidence 
 which Warrener had unexpectedly given in court. 
 
 The jury having found a verdict for the plaintiff, Jones, Serjt., 
 on the following morning, moved for and obtained a rule, to shew 
 cause why the verdict should not be set aside' and a new trial had, 
 upon the ground that the evidence of the plaintiff's attorney had been 
 improperly received. In the course of Hilary vacation, 1834, the 
 learned Judges, differing in opinion on the case, delivered their re- 
 spective judgments to the following effect: 
 
 Lord Denman, C. J. : "The question which has been argued before 
 us, arose in this manner: — Four witnesses, examined on the plaintiff's 
 part, gave evidence which, if believed, established his case; he then 
 called a fifth, whose testimony, if believed, defeated the plaintiff's case, 
 and fully proved that of the defendant. It was then proposed by the 
 plaintiff to shew that this same witness had formerly given a com- 
 pletely different account at another time. The mode of doing this was 
 by producing the statement taken down shortly before the trial, from 
 his own lip.s, by. the plaintiff's attorney. The object of the evidence 
 tendered, was to shew the untruth of what he swore upon the trial: 
 we are now to consider whether I did right in permitting this con- 
 tradiction to be proved. ' 
 
 "Notwithstanding my respect for the different opinion which is en- 
 tertained by my learned brother now present, and, as I believe, by 
 others of great weight and authority, I retain that on which I acted 
 at Lancaster. The case was brought by what occurred to this simple 
 point, — to which of the witnesses credit was due. If to the first four, 
 the plaintiff was entitled to the verdict; if to the last, the defendant. 
 On this issue alone the event of the cause depended. The defendant 
 enjoyed the privilege of assailing the credit of those who were op- 
 posed to his interest; the plaintiff must have the same right with 
 respect to that witness who unexpectedly turned against him, unless 
 he is debarred by some strict rule of law. I find no such rule, but 
 
No. 112. PERSONS IMPEACHABLE. 117 
 
 many decisions which have proceeded on the opposite principle. 
 
 "There is a passage, indeed, upon this subject in Buller's Nisi Prius, 
 to which, as I understand it, I most fully describe (on p. 297) : 
 *A party never shall be permitted to produce general evidence to dis- 
 credit his own witness; for that would be to enable him to destroy the 
 witness if he spoke against him, and to make him a good witness if 
 he spoke for him, with the means in his hands of destroying his credit 
 if he spoke against him. But if a witness prove facts in a cause which 
 make against the party who called him, yet the party may call other 
 witnesses to prove that those facts were otherwise; for such facts are 
 evidence in the cause, and the other witnesses are not called directly 
 to discredit the first witness, but the impeachment of his credit is in- 
 cidental and consequential only.' But I consider the meaning to be, 
 that no party shall produce a witness whom he knows' to be in- 
 famous, and whom he has, therefore, the means of discrediting by 
 general evidence. No inference arises, that I may not prove my wit- 
 ness to state an untruth, when he surpries me by doing so, in direct 
 opposition to what he had told me before. In this case the discredit 
 is consequential, and the evidence is not general but extremely particu- 
 lar, and subject to any explanation which the witness may be able to 
 afford. The rule laid down in Buller's Nisi Prius, therefore appears to 
 me inapplicable. 
 
 "Two dangerous consequences are, however, apprehended from ad- 
 mitting the former statement of a witness, in contradiction to his tes- 
 timony on the trial. The most obvious and striking danger is that 
 of collusion. An attorney may induce a man to make a false state- 
 ment without oath, for the mere purpose of contradicting by that state- 
 ment the truth, which, when sworn as a witness, he must reveal. The 
 two parties concerned in this imagined collusion must be utterly lost 
 to every sense of shame as well as honesty. But there is another mode 
 by which their wicked conspiracy could be just as easily effected. The 
 statement might be made, and then the witness might tender himself 
 to the opposite party, for whom he might be first set up, and after- 
 wards prostrated by his former statement. This far more effectual 
 stratagem could be prevented by no rule of law. 
 
 "The other danger is, that the statement, which is admissible only to 
 contradict the witness, may be taken as substantive proof in the cause. 
 But this danger equally arises from the contradiction of an adverse 
 witness: It is met by the Judge pointing out the distinction to the 
 jury, and warning them not to be misled. It is not so abstruse but 
 that Judge may explain it, and juries perceive its reasonableness; and 
 it is probable that they most commonly discard entirely the evidence 
 of him who has stated falsehoods, whether sworn or unsworn. . . . 
 
 "They say that the reason of the rule, as laid down in Buller's Nisi 
 Prius, extends to the exclusion, not merely of general evidence, but 
 of all evidence which is offered merely for the purpose of discrediting 
 
118 TESTIMONIAL IMPEACHMENT. No. 112, 
 
 witness, and which is not per se evidence in the cause. But neither 
 do I agree that this larger rule would have followed as a consequence 
 of the reason assigned. For the word 'credit' appears to me manifestly; 
 to be employed in the sense of general character; and, thus under- 
 stood, the rule and the reason go well together, and are perfectly con- 
 sonant to common sense; 'You shall not prove that man to be in- 
 famous whom you endeavored to pass off to the jury as respectable.' 
 But how can this prevent me from showing that he states an untruth 
 on a particular subject by producing the contrary statement previously 
 made by him, which gave me just cause to expect the repetition of 
 it now? If his character is injured, it is not directly but conse- 
 quentially. But perhaps no injury may arise; there may be a defect 
 of memory; there may be means of perfect explanation. If not, — if 
 the witness professing to be mine has been bribed by my adversary ta 
 deceive me, — if, having taught me to expect the truth from him, he is 
 induced by malice or corruption to turn round upon me with a newly 
 invented falsehood, which defeats my just right and throws discredit 
 on all my other witnesses, must I be prevented (from) showing the 
 jury facts like these? . . . Can any reason, then, be assigned why, 
 when equally deceived by his denying to-day what he asserted yester- 
 day, you should be excluded from showing the contradiction into which 
 (from whatever motive) he had fallen? It is clear that in civil 
 cases the exclusion might produce great injustice, and in criminal 
 cases improper acquittals and fraudulent convictions. . . . The incon- 
 venience of precluding the proof tendered strikes my mind as infinitely 
 greater than that of admitting it. For it is impossible to conceive a 
 more frightful iniquity than the triumph of falsehool and treachery 
 in a witness who pledges himself to depose the truth when brought 
 into Court, and in the meantime is persuaded to swear, when he ap- 
 pears, to a completely inconsistent story." 
 
 BoLLAND, B. : "The rule applicable to this question is, as it seems ta 
 me, that which has been relied upon by my brother, Jones; viz., that a 
 party in a cause is not to be permitted to give evidence of a fact, for 
 the purpose of discrediting his own witness, unless such fact" would 
 of itself be evidence in the cause ; but that where such fact is relevant 
 to the issue, and so per se evidence in the cause, such proof is to be 
 allowed to be given, although it may collaterally have the effect of dis- 
 crediting the testimony of his own witness. . . . 
 
 "I think that great weight is due to the argument founded on the dan- 
 ger of collusion; it is, indeed, in my mind, the main object to the recep- 
 tion of the evidence. With the exception of the opinion of the two learned 
 Judges in Rex v. Oldroyd, the authorities are uniform in establishing, 
 that a party cannot contradict his own witness but by giving evi- 
 dence of facts bearing upon the issue. It was open to the plaintiff 
 to do so in the present case, but he was not at liberty to prove that 
 his witness, VVarrener, had previously made a different statement to 
 
No. 113. PERSONS IMPEACHABLE. 119 
 
 the attorney, because that was a matter not relevant to the issue in the 
 cause; nor was the statement entitled to such weight as a contradiction, 
 as to have the power of neutralizing- the evidence (one of the reasons 
 urged for its admission), it not having been given upon oath. It 
 furnished a sufficient apology for putting Warrener in the brief, and 
 calling him, but could go no farther. For these reasons I am of 
 opinion, the evidence of the witness, Mallady, was improperly received 
 at the trial; but, as the Court is divided, there cannot, of course, be 
 any rule." 
 
 BULLARD V. PEARSALL (1873.) 
 
 55 N. Y. 231. 
 
 A witness was called by the plaintiff to prove that a certain con- 
 versation took place between the witness and the defendant previous to 
 the 17th of July, 1868, but to the ,£uroris&-e f the plai Ht4ff-the^^crh> 
 nps,-; epstjf pd that the conversation took —place— oa— tJte— tAventv— 
 fourth of Tuly. The date was material. Th e plaintiff, was_permitled_ 
 to ask the witness whether he had not upon a prior examination sworn 
 that the occasion upon which the conversation took place occurred in 
 June. The witness answered that on the first examination referred to 
 he supposed that the occurrence was prior to the seventeenth of July, 
 but on subsequently consulting a memorandum he had found himself 
 mistaken and that it was on the twenty-fourth of July. He further 
 testified on his second examination to a reply made by the defendant, 
 during the conversation in question, to an offer then made by the witness, 
 in which reply the defendant mentioned the transaction out of which 
 this action arose, which occurred on the seventeenth of July. The 
 plaintiff's counsel then asked the witness whether he had not pre- 
 viously said in the presence of the plaintiff's counsel and others that 
 he did not know that the defendant made much reply to that offer, 
 This question was obiectedto^_and^ he nhjecHnn was^ gn^tained. ^i^jf^ 
 
 KAPALLO, J.: THe^question has frequently arisen whether the 
 party calling the witness should, upon being taken by surprise by unex- 
 pected testimony, be permitted to interrogate the witness in respect to 
 his own previous declarations, inconsistent with his evidence. Upon 
 this point there is considerable conflict in the authorities. We are of 
 o pinion that such questions may be asked of the witness fo r ffigjgfpnse' 
 ol probmg his recollection, re'calling to his mind the Statements he lias~ 
 previously made, and drawing out an explanation of his apparent incon- 
 sistency. This course of examination may result in satisfying the wit- 
 ness that he has fallen into error and that his original statements were 
 correct, and it is calculated to elicit the truth. It is also proper for 
 the purpose of showing the circumstances which induced the party to 
 call him. Though the answers of the witness may involve him in con- 
 
120 TESTIMONIAL IMPEACHMENT. No. 113. 
 
 tradictions calculated to impair his credibility, that is not a sufficient 
 reason for excluding the inquiry. . . . Inquiries calculated to elicit the 
 facts, or to show to the witness that he is mistaken, and to induce him 
 to correct his evidence, should not be excluded simply because they may 
 result unfavorably to his credibility. In case he should deny having 
 .made previous statements inconsistent with his testimony, we do not 
 think it would be proper to allow such statements to be proved by other 
 witnesses; but where the questions as to such statements are confined 
 to the witness himself, we think they are admissible. As a matter of 
 course, such previous unsworn statements are not evidence. . . . [In 
 the present case] the only effect which could have been claimed from 
 a favorable answer would have been to discredit the witness on the 
 ground that he was testifying to matters of which he had previously 
 disclaimed any knowledge, and that his latter evidence was fabricated. 
 The plaintiff was allowed to ask whether at the time inquired of he 
 recollected the reply to which he testified on his last examination, and 
 this was, we think, as far as the plaintiff was entitled to go. We are, 
 therefore, of opinion that no error was committed in sustaining the 
 objection." 
 
 Statutes. England: 1854, St. 17 & 18 Vict. c. 125 § 22: "[i] A 
 party producing a witness shall not be allowed to impeacji his credit by 
 general evidence of bad character; [2] but he may, in case the 
 witness shall in the opinion of the judge prove adverse, [3] con- 
 tradict him by other evidence, [4] or by leave of the judge prove that 
 he has made at other times a statement inconsistent with his present 
 testimony." 
 
 California: C. C. P. 1872 § 2049: "The party producing a witness 
 . . . may also show that he has made at other times statements incon- 
 sistent with his present testimony." 
 
 Topic I : Moral Character. 
 
 Lord Chancellor Macclesfield's Trial, 16 How. St. Tr. 12^9 
 (1725) ; Common Serjeant: "We desire that Mr. Price may give your 
 Lordships an account of what he knows of the character of Mr. 
 Cothingham and how long he hath known him." Mr. Price: 
 "My lords, I have known him upwards of twenty years; I never knew 
 anybody say anything amiss of him. ... I know no man in his place 
 behaved himself better than he hath done." Common Serjeant: "We 
 desire to ask not only to what Mr. Price's opinion is, but to what is the 
 opinion of others, as to his general character." Mr. Price: "I believe 
 
No. 117. MORAL CHARACTER. 121 
 
 if you ask his character of an hundred people, ninety of them will give 
 him rather a greater character." 
 
 REX V. WATSON (1817). 
 32 How. St. Tr. I, 4Q5, s Stark. 154. 
 
 Abbott, J. : "The usual question put for the purpose of discrediting 
 the testimony of a witness is, Would you believe that witness upon his 
 oath?" Bayley, J.: "The witnesses may state that he is not a 
 man to be believed upon his oath." 
 
 James Lawson sworn. — Examined by Mr. Wetherell. "Do you know 
 a person of the name of John Heyward, alleged to abide at No. 6, Stan- 
 gate-wall, Lambeth, in the county of Surrey, stock-broker?" "I know 
 the person you allude to." "How many years have you known him?" 
 "Upwards of ten years; in fact, I have known him from a boy." 
 "Would you believe him upon his oath; or in your judgment, is he a 
 person to be believed upon his oath?" "I believe not; I would not be- 
 lieve him upon his oath." "You would not; and you believe he is not a 
 person to be believed upon his oath?" "I do." 
 
 STATE V. RANDOLPH (1856). 
 
 24 Conn. 363, 367. 
 
 Ellsworth, J.: "Another subject has been discussed, respecting 
 which there is a diversity in the practice of the courts of justice. We 
 mean, the proper question to be put to a witness, who is called 
 ^ ' to impeach the character of another witness. One thing, how- 
 ever, is obvious, that in all courts, whatever be the form or extent of 
 the enquiry, the thing aimed at is one and the same, the character of 
 the witness for truth; and where the question assumes a more general 
 form, it is allowed only for its supposed bearing on the truthfulness, 
 or the reverse of the witness; his character for truth is all that is per- 
 tinent and material -to the point, and all that the jury should enquire 
 after; other facts, other offences, tried or untried, not being crimen 
 falsi, have no bearing tj ^pgn the enquiry wha tever, and should not be 
 brought into the case. Q n the English court || the en quiry is in this 
 form : 'Are you acquainted with the character o± the '"witness ? — what 
 is his general^ character ?— would vovi 
 
 general rule of practice this has been found satisfactory in that coun- 
 try, and elsewhere, and doubtless would be so here, if our courts had 
 not, at an early period, adopted a different rule, which has proved to 
 be satisfactory and sufficient, and which we are not willing, at this late 
 day, to abandon for another, certainly not better, if as good. . . . The 
 more general enquiry in England is adopted to learn the witness' char- 
 
122 TESTIMONIAL IMPEACHMENT.- No. 117. 
 
 acter for truth; ours is adopted for the same purpose, but is more sim- 
 ple and direct. I n our mnrts the enquiry put is^s the character for 
 ' ^ruth on a par with that of mankind in general?' The English rule lias 
 ''this advantage, that it brings the general character of the witness before 
 the triers, which is important where the witness has not acquired a 
 specific character on the subject of truth; and hence it is urged with 
 some force that in such a case the general enquiry is essential, for no 
 other will reach the case. . . . General bad character is undoubtedly 
 a serious blemish in a witness, and might justly detract from the weight 
 of his testimony; and so might the character of a witness for the spe- 
 cific blemish of licentiousness, especially in the female sex. But where 
 shall we stop the enquiries ? Witnesses, who can have no opportunity to 
 exculpate themselves or give explanations of their acts, ought not to be 
 exposed to unjust obloquy, nor should the trial be complicated and pro- 
 longed by trying collateral issues. If it were wise and just to enquire 
 for one's reputation for virtue, why not for gambling, horse-racing, 
 drunkenness, sabbath-breaking, etc. ?"^ 
 
 Topic II : Evidence to Prove Bias, Interest, Etc. 
 
 ELLSWORTH v. POTTER (1869). 
 
 41 Vt. 689. 
 
 Trespass q. c. f., by breaking into the plaintiff's premises and mak- 
 ing a disturbance. On trial the defendant introduced Dwight H. Rudd 
 as a witness in their behalf, who testified to material facts tend- 
 ^^' ing to prove that some of the defendants were not at the plain- 
 tiff's house on the occasion referred to. On cross examination he was 
 inquired of by the plaintiff's counsel if he had had any difficulty with 
 the plaintiff, and testified that he had not. The plaintiff in her rebut- 
 ting testimony offered to show the state of feeling or feelings of hos- 
 tility existing toward her on the part of the witness — ^that there had 
 been a quarrel between them, and that she turned the witness out of 
 her house, — which was objected to by the defendants, but admitted by 
 the court, for that purpose only; to which decision the defendants ex- 
 cepted. 
 
 Steele, J. : "Dwight Rudd, a witness for the defendants, testified 
 that he had no difficulty with the plaintiff. The plaintiff was at Uberty 
 not only to contradict this in general terms, but also and under 
 the direction of the Court to state enough to indicate the extent 
 
 I — Compare the authorities cited in W., The use of reputation to evidence char- 
 
 51 922-924. acter is considered under the Reputation 
 
 The witness' personal opinion of char- exception to the Hearsay rule, post, Nos. 
 
 acter is considered under the Opinion rule, 319-322. 
 tost, Nos. 424-426. 
 
No. 120. CONDUCT, AS EVIDENCE OF CHARACTER. 123 
 
 or degree of the difficulty and consequent ill-feeling. . . . This testimony- 
 was not intended or calculated to show which party was in fault, but 
 only the degree of estrangement between them. It is impracticable by 
 any general rule to fix a precise limit which should govern the admis- 
 sion of such evidence, and necessarily it must be left to a considerable 
 extent to the discretion of the nisi prius Court."" 
 
 TRINITY COUNTY LUMBER CO. v. DENHAM (1895). 
 
 88 Tex. 203, 30 S. W. 856. 
 
 Brown, J.: "If it be admitted, however, that Borden had parted 
 with his interest in the suit before he first gave his testimony, still 
 we think it was permissible to show that he had been inter- 
 ested in the case, the extended character of that interest, and the 
 time and circumstances under which he parted with his interest, all of 
 which would go to his credibility. At common law a witness was ren- 
 dered incompetent to testify by reason of his interest in the result of 
 the suit. A release would restore his competency, but it is by no means 
 certain that it would remove from his mind the bias, if any, that such 
 interest would occasion; and every fact or circumstance which wou^^j^i 
 tend to show to the jury his relation to the case or the parties was ad-. { 
 missible, in order that they might determine what weight they ought tc|Ji 
 give to his evidence." ' 
 
 Topic III : Conduct, as Evidence of Character. 
 
 ROOKWOOD'S TRIAL (1696). 
 
 13 How. St. Tr. 209. 
 
 Sir B. Shower (for the defendant) : "We will call some other wit- 
 nesses to Mr. Porter's [the chief witness for the Crown] reputation and 
 behavior ; we think they will prove things as bad as an attainder." 
 1^® . . . L. C. J. Holt: "You must tell us what you call them to." 
 Sir B. Shower: "Why, then, my lord, if robbing upon the highway, if 
 clipping, if conversing with clippers, if fornication, if buggery, if any of 
 theselrregularities will take off the credit of a man, I have instructions 
 in my brief of evidence of crimes of this nature and to this purpose 
 against Mr. Porter ; and we hope that by law a prisoner standing for his 
 life is at liberty to give an account of the actions and behavior of the 
 witnesses against him. I know the objection that Mr. Attorney [-Gen- 
 eral] makes, — ^that a witness does not come prepared to vindicate and 
 give an account of every action of his life, and it is not commonly al- 
 lowed to give evidence of particular actions. But if those actions be 
 repeated, and a man lives in the practice of them, and this practice is 
 
 2 — Compare the citations in W., §§ 951, 932. 
 
124 TESTIMONIAL IMPEACHMENT. No. 120, 
 
 continued for several years, and this be made out by evidence, we hope 
 that no jury that have any conscience will upon their oaths give any 
 credit to the evidence of a person against whom such a testimony is 
 given." . . . Mr. Attorney-General Trevor: "My lord, they themselves 
 know that this sort of evidence never was admitted in any case, nor can 
 be, for it must tend to the overthrow of all justice and legal proceedings ; 
 for, instead of trying the prisoner at the bar, they would try Mr. Porter. 
 It has been^ always denied, where it comes to a particular crime that a 
 man may be prosecuted for; and this, it seems, is not one (jrime or 
 two, but so many and so long continued, as they say, and so often prac- 
 tised, that here are the whole actions of a man's life to be ripped up; 
 which they can never show any precedent when it was permitted, because 
 a man has no opportunity to defend himself. Any man in the world 
 may by this means be wounded in his reputation, and crimes laid to his 
 charge that he never thought of, and he can have no opportunity of 
 giving an answer to it because he never imagined there would be any 
 such objection. It is killing a man in his good name by a side- wound, 
 against which he has no protection or defence. My lord, this must tend 
 to the preventing all manner of justice; it is against all common sense 
 or reason; and it never was offered at by any lawyer before, as I be- 
 lieve, — at least, never so openly ; and therefore I wonder that these gen- 
 tlemen should do it, who acknowledge — at least one of them did — ^that 
 as often as it has been now offered it has been overruled; and I know 
 not for what end it is offered but to make a noise in the Court." . . . 
 Sir B. Shower: "My lord, ... we conceive, with submission, we may 
 be admitted in this case to offer what we have offered. Suppose a man 
 be a common, lewd, disorderly fellow, one that frequently swears to 
 falsehood for his life. We know it is a common rule in point of evi- 
 dence that against a witness you shall only give an account of his char- 
 acter, at large, of his general conversation. But that general conversa- 
 tion arises from particular actions; and if the witnesses give you an 
 account of such disorderly actions repeated, we hope that will go to his 
 discredit ; which is that we are now laboring for." L. C. J. Holt : "Look 
 ye, you may bring witnesses to give an account of the general tenor of 
 his conversation ; but you do not think sure that we will try now at this 
 time whether he be guilty of robbery or buggery." 
 
 OXIER v. UNITED STATES (1896). 
 
 ■I Ind. T. 85, 38 S. W. 331,. 
 
 Lewis, J. : "There is a clear distinction recognized by the authorities 
 cited above, between impeaching a witness by proof of facts which dis- 
 credit him, made independently of his examination, and by proof 
 of the same facts elicited in his cross-examination. Proof of par- 
 ticular facts tending to impair his credibility, made independently of his 
 
No. 123. CONDUCT, AS EVIDENCE OF CHARACTER. 125 
 
 own examination, is excluded for the reason that its admission would en- 
 gender a multiplicity of collateral issues, and would frequently surprise a 
 witness with matter which he could not be prepared to disprove. But 
 these reasons do not apply to his cross-examination as to the same 
 facts, because the witness, better than any one else, can explain the 
 impeaching matter, and protect himself to the extent that explanation 
 will protect him ; the cross-examining party being bound by his replies." 
 
 PEOPLE V. JACKSON (1857). 
 
 3 Park. Cr. jpd. 
 
 Strong, J.: "[Conduct derogatory to the witness' character] may be 
 proved provided it does not raise or tender a collateral issue. Thus, it 
 may be proved that a proposed witness has been convicted of an 
 infamous offence, by producing the record. That raises no collat- 
 eral issue of fact, as^the record is conclusive and there can be no further 
 inquiry. But it is not competent to prove that the witness has in fact 
 committed a crime, if he has not been convicted, although the actual 
 perpetration of the crime is what renders him unworthy of belief. That, 
 if permitted, might raise a collateral issue for trial." 
 
 STATE V. GREENBURG (1898). 
 59 Kan. 404, S3 Pac. 61. 
 
 Johnston, J. : "Jacob Greenburg was convicted in the district court 
 of Bourbon county for feloniously receiving stolen goods, knowing them 
 to have been stolen. . . . Meyer Berkson, who testified in behalf 
 of the defendant, was cross-examined as to his past life and con- 
 duct, with a view of impairing his credit; and, after stating that he 
 had been under arrest, he was asked what he had been arrested 
 for, when an objection was made that the record was the best evidence, 
 and, further, that it was only a civil arrest. . . . Granting that the ob- 
 jections were sufficient to raise the question, the testimony was per- 
 missible, under the rule which has long been recognized in this state. 
 For the purpose of judging the character and credit of a witness, he 
 may be cross-examined as to specific facts tending to disgrace or degrade 
 him, although collateral to the main issue, and touching on matters of 
 record. Such questions are allowed when there is reason to believe 
 that it will tend to the ends of justice, and are asked for the purpose of 
 honestly discrediting the witness. It is the duty of the court to see 
 that the rule is not abused, or the cross-examination unreasonably ex- 
 tended." 
 
 DosTER, C. J. (dissenting) : "An arrest is nothing more than an 
 accusation of crime or other act of turpitude. That it is made in the 
 form of a forcible restraint of the person, based upon a sworn com- 
 plaint, makes it, for purposes of disgrace or discredit, no stronger evi- 
 
126 TESTIMONIAL IMPEACHMENT. No. 123. 
 
 dence of the truth of the accusation than an oral statement by the ac- 
 cuser would be. No one would contend that a witness could be asked 
 whether another person had not orally accused him of crime. Why 
 should the rule be different when the accusation has been written out 
 and sworn to ? It is but an accusation in each case. Why should it 
 be different when the sworn accusation is followed by an arrest? The 
 arrest is but a reassertion of the accusation in another form. It is quite 
 different, however, when the accusation has been proved. When the 
 proceeding has passed from accusation to conviction, evidence of the 
 turpitude of the witness exists, — not what somebody said of him, but 
 what the judicial tribunals sitting in judgment upon the accusation have 
 found against him." 
 
 WATSON'S TRIAL (1817). 
 
 22 How. St. Tr. 295, 297. 
 
 That his friends were felons; that he was a bigamist; that he had 
 been employed in a house of ill-fame, etc., were allowed to be the sub- 
 jects of questioning; then limits were drawn; Mr. Wether ell, cross- 
 ■^ examining: "Did you [being married] ever make proposals of 
 
 marriage to any person within these three or four years?" L. C. J. 
 Ellenborough : "How can that question be asked ? I will put it to your 
 own feelings, your own good sense." Mr. Wetherell: "I will not carry it 
 further." Another witness admitted one Dickens to have been his com- 
 panion. Mr. Wetherell, cross-examining : "Do you not know that it is the 
 same Dickens that was discharged at the Old Bailey as the associate of a 
 man of the name of Vaughan in hatching up those conspiracies?" A. "I 
 do not know." L. C. J- Ellenborough : How can we know this ?" 
 Mr. Wetherell: "My object is, to show that this man's associates are 
 all felons or the most base of mankind." L. C. J. Ellenborough : "This 
 is really very irregular. ... It is really corrupting all justice when 
 such prejudices are introduced. The Court are of opinion that the ques- 
 tion should not be put." 
 
 R. v. CASTRO, alias TICHBORNE (1873). 
 
 32d day, Kenealy's ed., I, 3p6, Report of the Charge, II, 720, 722. 
 
 Lord B., who had testified to the tattoo-marks on Roger Tichborne, 
 was cross-examined: Dr. Kenealy, for defendant: "Did you play a 
 practical joke [on Captain H.] ?" . . . L. C. J. Cockburn : "It 
 may be a practical joke of such a nature that the jury would 
 disbelieve the evidence on his oath, on its being made known to them. 
 We must leave that to the discretion of Dr. Kenealy." . . . Dr. Kenealy: 
 "It was not a practical joke. Did you take away his wife." Lord B.: 
 "I cannot answer that question." . . . Dr. Kenealy: "Did you seduce 
 
No. 126. CONDUCT^ AS EVIDENCE OF CHARACTER. 127 
 
 his wife and make her elope from her husband ? ... I am sorry to have 
 to ask my lord to tell you you must answer it." L. C. J. Cockburn: 
 "I certainly shall not." Br. Kenealy: "Indeed you must, my lord ! It 
 goes to the witness' credit. I must have it answered, my lord." . . . L. 
 C. J. Cockburn : "I am afraid, if the question is pressed, you [the wit- 
 ness] must answer it. It is one of the consequences of being brought 
 into a court oi justice as a witness that whatever he has done may be 
 brought up against him." Upon charging the jury, L. C. J. Cockburn 
 adverted to this examination as follows: "Lord B. has committed a 
 wofully sad sin; . . . another man's wife left her husband and joined 
 him, and they have lived together; . . . [Counsel] asks you deliberately 
 to come to the conclusion that because of this offence Lord B. is not 
 to be believed upon his oath, — nay, more, that you must assume him to 
 be perjured. Is that, do you think, a view that you can properly adopt ? 
 Is it because a man has committed a breach of morality, however 
 flagrant, that those to whom his testimony may be important in a court 
 of justice are to be deprived of it? . . . There are crimes and offences 
 which savor so much of falsehood and fraud that they do go legitimately 
 to the credit of witnesses. There are offences of a different character, 
 and grievous offences if you will, but which do not touch that particular 
 part of a man's moral organization — if I may use the phrase — which 
 involves truth; and there is an essential distinction between this species 
 of fault and those things which go to the very root of honesty, integrity, 
 and truth, and so do unfortunately disentitle witnesses to belief."^ 
 
 THIRD GREAT WESTERN TURNPIKE CO. v. LOOMIS (1865). 
 
 32 N. Y. 127, 132. 
 
 The trial Court had excluded, as immaterial to the main issue, ques- 
 tions attacking the witness' character, no privilege having been claimed ; 
 the question of law was whether this could be done "in the sound 
 •^"" discretion" of that Court; on intermediate appeal the answer was 
 
 I — Sir James Stephen, History of the quently known cases in which evidence of 
 Criminal Law, I, 433 (1883): "The most decisive importance was procured by ask- 
 difficult point as to cross-examination is jng people of apparent respectability ques- 
 the question how far a Witness may be tions which, when first put, appeared to be 
 cross-examined to his credit by being asked offensive and insulting in the highest de- 
 about transactions irrelevant to the mat- gree. I remember a case in which a so- 
 •ter at issue, except so far as they tend licitor's clerk was indicted for embezzle- 
 to show that the witness is not to be ment. His defence was that his employer 
 believed upon his oath. No doubt such had brought a false charge against him to 
 questions may be oppressive and odious. conceal (I think) forgery committed by 
 They may constitute a means of gratify- himself. The employer seemed so respect- 
 ing personal malice of the basest kind, able and the prisoner so discreditable that 
 and of deterring witnesses from coming the prisoner's counsel returned his brief 
 -forward to discharge a duty to the public. rather than ask the questions suggested by 
 At the same time it is impossible to de- his client. The prisoner thereupon asked 
 vise any rule for restricting the latitude the questions himself, and in a very few 
 -which at present exists upon the subject, minutes satisfied every person in court 
 ■without doing cruel injustice. I have fre- that what he had suggested was true." 
 
128 TESTIMONIAL IMPEACHMENT. No. 126. 
 
 negative, but the trial Court's ruling was on further appeal sustained. 
 PoRTERj J.: "If the judgment of the Court below be upheld by the 
 sanction of this tribunal, it will embody in our system of jurisprudence 
 a rule fraught with infinite mischief. It will subject every witness who, 
 in obedience to the mandate of the law, enters a court of justice to tes- 
 tify on an issue in which he has no cencern, to irresponsible accusation 
 and inquisition in respect to every transaction of his life affecting his 
 honor as a man or his character as a citizen. It has heretofore been 
 understood that the range of irrelevant inquiry for the purpose of de- 
 grading a witness was subject to the control of the presiding judge, 
 who was bound to permit such inquiry when it seemed to him in the 
 exercise of a sound discretion that it would promote the ends of jus- 
 tice, and to exclude it when it seemed unjust to the witness and un- 
 called for by the circumstances of the case. The judgment now under 
 review was rendered on the assumption that it is the absolute legal 
 right of a litigant to assail the character of every adverse witness, to 
 subject him to degrading inquiries, to make inquisition into his life, and 
 drive him to take shelter under his privilege or to self-vindication from 
 unworthy imputations wholly foreign to the issue on which he is called 
 to testify. The practical effect of such a rule would be to make every 
 witness dependent on the forbearance of adverse counsel for that pro- 
 tection from personal indignity which has been hitherto secured from 
 our courts, unless the circumstances of the particular case made collat- 
 eral inquiries inappropriate. This rule . . . would perhaps operate most 
 oppressively in trials before inferior magistrates, where the parties ap- 
 pear in person, or are represented by those who are free from a sense of 
 personal responsibility. . . . The practice which has heretofore pre- 
 vailed in this respect has been satisfactory to the community, the bench, 
 and the bar. Questions of this nature can be determined nowhere more 
 safely or more justly than in the tribunal before which the examination 
 is conducted. Justice to the witness demands that the Court to which 
 he appeals for present protection shall have the power to shield him 
 from indignity, unless the circumstances are such that he cannot fairly 
 invoke that protection. . . . [The opposite view] ignores the indignity 
 of a degrading imputation when there is nothing in the circumstances 
 of the case to justify it. It ignores, too, the humiliation of public ar- 
 raignment by an irresponsible accuser, misled by an angry client, and 
 shielded by professional privilege. Few men of character or women 
 of honor could suppress, even on the witness-stand, the spirit of just 
 resentment which such an examination, on points alien to the case, 
 would naturally tend to arouse. The indignation with which sudden 
 and unworthy imputations are repelled often leads to injurious miscon- 
 struction. A question which it is alike degrading to answer or to de- 
 cline to answer should never be put, unless in the judgment of the Court 
 it is likely to promote the ends of justice. A rule which would license 
 indiscriminate assaults on private character, under the forms of law, 
 
No. 126. - CONDUCT, AS EVIDENCE OF CHARACTER. 129 
 
 -would contribute little to the development of truth and still less to the 
 furtherance of justice. . . . Unless there be a plain abuse of discretion, 
 decisions of this nature are not subject to review on appeal."" 
 
 Topics IV, V: Error, as Shown by Contradiction or Self- 
 
 CONTRADICTION. 
 
 WHITEBREAD'S TRIAL (1679). 
 
 7 How. St. Tr. 311, 374. 
 
 The defendant offered to prove that the principal crown witness, 
 Oates, had made a false statement as to his companions, in his testimony 
 at a prior trial for the Popish Plot. L. C. J. North: "That is 
 ^*' nothing to the purpose. If you can contradict him in anything 
 that hath been sworn here, do." Defendant: "If we can prove him a 
 perjured man at any time, we do our business." L. C. J. North : "How 
 can we prove one cause in another ? . . . Can he come prepared to make 
 good everything that he hath said in his life?" Another defendant: 
 "All that I say is this. If he be not honest, he can be witness in no case." 
 L. C. J. North : "But how will you prove that? Come on, I will teach 
 you a little logic. If you will come to contradict a witness, you ought 
 to do it in a matter which is the present debate here; for if you would 
 convict him of- anything that he said in Ireland's trial, we must try 
 Ireland's cause over again." 
 
 EARL OF CASTLEMAINE'S TRIAL (1680). 
 7 How. St. Tr. 1067, 1081, iioi. 
 
 Treason; the chief witness for the prosecution, Titus Oates, was 
 cross-examined as to having said things about the accused's divorce, and 
 witnesses were then called to contradict his answers. Attorney- 
 General: "If he may ask questions about such foreign matters 
 as this, no man can justify himself; . . . any man may be catched thus." 
 Defendant: "How can a man be catched in the truth?" L. C. J. 
 Scroggs : "We are not to hearken to it. The reason is this, first : You 
 must have him perjured, and we are not now to try whether that thing 
 sworn in another place be true or false; because that is the way to 
 accuse whom you please, and that may make a man a liar that cannot 
 imagine this will be put to him; and so no man's testimony that comes 
 to be a witness shall leave himself safe."^ 
 
 2 — Compare the authorities cited in. W., sidered post, Nos. 456, 457; and his priv- 
 
 5§ 979-9^7. ilege not to answer criminating questions 
 
 The witness' privilege not to answer is considered post, Nos. 492, 493. 
 
 questions involving moral disgrace is con- 3-Anon., Green Bag, 1898, X, 53: "My 
 
130 TESTIMONIAL IMPEACHMENT. No. 129. 
 
 BLAKEY'S HEIRS v. BLAKEY'S EXECUTRIX (1859). 
 
 33 Ala. 611, 613, 6ip. 
 
 Probate of a will. The contestants introduced evidence conducing 
 to show that the will was procured by the exercise of undue influence 
 over the testator by the proponent; and for this purpose they 
 adduced proof of the testator's declarations, both before and 
 after the execution, to the effect that he did not wish to make such a 
 will, but was induced to make it by his wife's importunities, "and for 
 the sake of peace in the family." One Stanley, a witness for the con- 
 testants, who testified to these declarations of the testator, further stated, 
 "that Dr. Gradick attended him [testator] in his sickness, and that Dr. 
 Gradick then lived in Centreville in said county;" also, "that he [wit- 
 ness] had known the testator for about twenty years, lived within a 
 mile of his house, and had always been very friendly and intimate with 
 him, until three or four years before his death, when a coolness sprang 
 up between them on account of a school." The proponent, in rebuttal 
 of the evidence adduced by the contestants, introduced a witness who 
 testified, "that he [witness] came to Centreville in March, 1853, and 
 that Dr. Gradick did not reside there during any portion of the balance 
 of that year;" and another witness who testified to declarations of the 
 witness Stanley, made fifteen years before the trial, to the effect that 
 unfriendly relations then existed between him and the testator. The 
 contestants objected to the competency of the testimony of each of these 
 witnesses, and reserved exceptions to the rulings of the court in admit- 
 ting it. 
 
 R. W. Walker, J. (holding the ruling to be erroneous) : "In Dozier 
 V Joyce* it seems to have been considered that the main reason for the 
 rule which prevents a cross-examination upon immaterial matters for 
 the mere purpose of contradicting the witness, is that he cannot be pre- 
 sumed to come prepared to defend himself on such collateral questions ; 
 and that, as this reason fails when the testimony is voluntarily given, 
 the rule itself does not in that case apply. The reason referred to is 
 doubtless one of those on which the rule was founded, but it is not the 
 only or even the chief one. The principal reasons of this rule are, un- 
 doubtedly, that but for its enforcement the issues in a cause would be 
 
 poor old confessor, Father Grady," said Latin?' 'A little.' "What words did you 
 
 O'Connell, "who resided with my uncle hear him say?' 'Ave Maria.' 'That is the 
 
 when I was a boy, was tried in Tralee Lord's Prayer, is it not?' asked the judge, 
 
 on the charge- of being a Papish priest, 'Yes, my Lord,' was the fellow's answer, 
 
 but the judge defeated Grady's prosecu- 'Here is a pretty witness to convict the 
 
 tors. There was a flippant scoundrel who prisoner,' cried the judge. 'He swears 
 
 came forward to depose to Father Grady's Ave Maria is Latin for the Lord's Prayer.* 
 
 having said mass. 'Pray, sir,' said the The judge charged the jury for the pris- 
 
 judge, 'how do you know he said mass?' oner, so my poor old friend Father Grady 
 
 'Because I heard him say it, my Lord.' was acquitted." 
 
 'Did he say it in Latin?' asked the judge. 4 — 8 Porter 303. 
 'Yes, my Lord.' 'Then you understand 
 
No. 131. CONTRADICTION AND SELF-CONTRADICTION. 131 
 
 multiplied indefinitely, the real merits of the controversy would be lost 
 sight of in the mass of testimony to immaterial points, the minds of 
 jurors would thus be perplexed and confused, and their attention wearied 
 and distracted, the costs of litigation would be enormously increased, and 
 judicial investigations would become almost interminable. An additional 
 reason is found in the fact that, the evidence not being to points material 
 in the case, witnesses guilty of false swearing could not be punished for 
 perjury. These reasons apply equally whether the evidence on such 
 collateral matters is brought out on the examination in chief or upon 
 cross-examination, and whether the witness gives it voluntarily or in 
 responce to questions calling for it."' 
 
 BERKELEY PEERAGE TRIAL (1811). 
 
 Sherwood's Abstract, i8g, 192, zj^. 
 
 The issue was whether Lord and Lady Berkeley were married before 
 their eldest son was born, and this again turned mainly upon the genu- 
 ineness or forgery of an entry in the marriage register made in 
 the name of Hupsman, the parish vicar; Lady Berkeley claimed 
 its genuineness; Nicholas Hicks, an attorney, was offered to prove this, 
 and swore convincingly, as being well acquainted with the writing; he 
 was asked at the beginning of his cross-examination: "Have you been 
 conversing with anybody lately as to this handwriting?" "I have not;" 
 the time of the trial being May. "You have not been at Spring Gar- 
 dens, [Lady Berkeley's residence], lately, have you?" "I have not; not 
 to converse with anybody on the subject." "Have you been there?" 
 "I have been there several times." "Whom did you go to there?" "I 
 saw Lady Berkeley." "Do you mean to say you have not talked with 
 anybody since you came to London as to the manner in which Hupsman 
 wrote?" "I have not." After a long series of questions on other mat- 
 ters, the cross-examiner finally returned and asked how he came to.be 
 a witness, when he said that he had told Lady Berkeley that he coul(J 
 identify the register entry. "When?" "I think in the month of .April.'*, 
 "It was in Spring Gardens you went to Lady Berkeley ?" "Yes." "And 
 you there told her you could swear to Hupsman's handwriting ?" "Xts,Z.^ 
 "And that was what passed between you?" "Yes." Whereupon his 
 first answers above were read; and he was later committed to Newgate 
 for contempt of the House. 
 
 ATTORNEY-GENERAL v. HITCHCOCK (i84;xV ^jj 
 
 I Exch. pj. I J 
 
 Information at the suit of the Attorney-General, which charged the 
 
 defendant, a maltster, with having used a certain cistern for making 
 
 malt without having previously entered it, as required by statute. 
 
 ^"^ At the trial, before Pollock, C. B., a witness of the name of 
 
 S — Compare the authorities cited in W., §§ 1003-1007. 
 
132 TESTIMONIAL IMPEACHMENT. No. 131. 
 
 Spooner, who deposed to the fact of the cistern having been used by 
 the defendant, was asked, on cross-examination by the defendant's coun- 
 sel, whether he had not said that the officers of the Crown had offered 
 him £20 to say that the cistern had been used. Spooner denied having 
 said so, and thereupon the defendant's counsel proposed to ask another 
 witness of the name of Cook, whether Spooner had not said so. The 
 Attorney-General objected to this question, and the Lord Chief Baron, 
 being of opinion that the question was irrelevant to the issue, and that 
 it also tended to raise a collateral issue, held the objection good, and 
 ruled that it could not be put. This ruling was sustained. 
 
 Pollock, C. B. : "My view has always been that the test whether 
 the matter is collateral or not is this: If the answer of a witness is a 
 matter which you would be allowed on your part to prove in evidence, 
 if it have such a connection with the issue that you would be allowed 
 to give it in evidence, then it is a matter on which you may contradict 
 him. ... I think the expression 'as to any matters connected with the 
 subject of inquiry' is far too vague and loose to be the foundation of 
 any judicial decision. And I may say I am not all prepared to adopt the 
 proposition in those general terms, that a witness may be contradicted 
 as to anything he denies having said, provided it be in any way connected 
 with the subject before the jury. It must be connected with the issue 
 as a matter capable of being distinctly given in evidence, or it must be 
 so far connected with it as to be a matter which, if answered in a par- 
 ticular way, would contradict a part of the witness' testimony; and if 
 it is neither the one nor the other of these, it Is collateral to, though 
 in some sense it may be considered as connected with, the subject of 
 the inquiry. A distinction should be observed between those matters 
 which may be given in evidence by way of contradiction as directly 
 affecting the story of the witness touching the issue before the jury, 
 and those matters which affect the motives, temper, and character of the 
 witness, not with respect to his credit, but with reference to his feel- 
 ings towards one party or the other. It is certainly allowable to ask 
 a witness in what manner he stands affected toward the opposite party 
 in the cause, and whether he does not stand in such a relation to that 
 person as is likely to affect him and prevent him from having an un- 
 prejudiced state of mind, and whether he has not used expressions im- 
 porting that he would be revenged on some one or that he would give 
 such evidence as might dispose of the cause in one way or the other. 
 If he denies that, you may give evidence as to what he said, — not with 
 the view of having a direct effect on the issue, but to show what is the 
 state of mind of that witness in order that the. jury may exercise their 
 opinion as to how far he is to be believed. But those cases, where you 
 may show the condition of a witness or his connection with either of 
 the parties, are not to be confounded with other cases where it is pro- 
 posed to contradict a witness on some matter unconnected with the 
 question at issue." 
 
No. 132. CONTRADICTION AND SELF-CONTRADICTION. 133 
 
 Alderson, B. : "The question is this, Can you ask a witness as to 
 what he is supposed to have said on a previous occasion ? You may ask 
 him as to any fact material to the issue, and if he denies it you may 
 prove that fact, as you are at Hberty to prove any fact material to the 
 issue. . . . The witness may also be asked as to his state of equal mind 
 or impartiality between the two contending parties, — questions which 
 would have a tendency to show that the whole of his statement is to 
 be taken with a qualification, and that such a statement ought really to 
 be laid out of the case for want of impartiality ; [and these answers may 
 be contradicted]. . . . Such, again, is the case of an offer of a bribe 
 by a witness to another person, or the offer of a bribe accepted by a 
 witness from another person; the circumstance of a witness having 
 offered or accepted a bribe shows that he is not equal and impartial. . . . 
 But with these exceptions I am not aware that you can with propriety 
 permit a witness to be examined first and contradicted afterwards on a 
 point which is merely and purely collateral. . . . Perhaps it ought to 
 be received, but for the inconvenience that would arise from the witness 
 being called upon to answer to particular acts of his life, which he 
 might have been able to explain if he had had reasonable notice to do 
 so, and to have shown that all the acts of his life had been perfectly 
 correct and pure, although other witnesses were called to prove the 
 contrary. The reason why a party is obliged to take the answer of a 
 witness is, that if he were permitted to go into it, it is only justice to 
 allow the witness to call other evidence in support of the testimony he 
 has given, and as those witnesses might be cross-examined as to their 
 conduct, such a course would be productive of endless collateral issues."* 
 
 THE QUEEN'S CASE (1820). 
 
 2B.&B. 313. 
 
 Abbott, C. J. : "If it be intended to bring the credit of a witness into 
 question by proof of anything he may have said or declared touching 
 the cause, the witness is first asked, upon cross-examination, 
 whether or no he has said or declared that which is intended to 
 be proved. If the witness admits the words or declarations imputed to 
 him, the proof on the other side becomes unnecessary, and the witness 
 has an opportunity of giving such reason, explanation, or exculpation of 
 his conduct, if any there may be, as the particular circumstances of the 
 transaction may happen to furnish ; and thus the whole matter is brought 
 before the court at once, which in our opinion is the most convenient 
 course. ... [If the witness denies the utterance or claims the privilege 
 of silence], the proof in contradiction will be received at the proper 
 season. But the possibility that the witness may decline to answer the 
 question affords no sufficient reason for not giving him the opportunity 
 
 6 — Compare the authorities cited in W., §| 1020-1022. 
 
134 TESTIMONIAL IMPEACHMENT. No. 132. 
 
 of answering and of offering such explanatory or exculpatory matter as 
 I have before alluded to; . . . not only for the pufpose already men- 
 tioned, but because, if not given in the first instance, it may be wholly 
 lost, for a witness who has been examined and has no reason to sup- 
 pose that his further attendance is requisite often departs the Court, and 
 may not be found or brought back until the trial be at an end. So that, 
 if evidence of this sort could be adduced on the sudden and by surprise, 
 without any previous intimation to the witness or to the party producing 
 him, great injustice might be done, . . . and one of the great objects of 
 the course of proceeding established in our courts is the prevention of 
 surprise, as far as practicable, upon any person who may appear 
 therein."' 
 
 DOWNER V. DANA (1847). 
 
 19 Vt. 345. 
 
 Debt on a bail bond; the plaintiff had introduced the deposition 
 of one Rutter. The defendants, for the purpose of impeaching the 
 witness Rutter, offered to prove declarations made by him pre- 
 vious to the giving of the deposition used in the case by the 
 plaintiffs, but in reference to which no preliminary inquiry had been 
 made of him. To this the plaintiffs objected; but the evidence was ad- 
 mitted by the court. Davis, J.: "Were the question res Integra, I 
 confess I could see no advantages to the cause of truth and justice, from 
 the adoption of this rule of evidence, which are not equally well secured 
 by the old practice of allowing the party whose witness has in that way 
 been attacked to recall him, if he chose, for the purpose of contradicting 
 or explaining the conduct or declarations imputed to him. Indeed, I 
 have seen no objections of consequence to that course, except that it 
 may sometimes happen that the witness may have departed from court 
 supposing his attendance no longer necessary. Such an objection prac- 
 tically is entitled to very little weight, as it would be provided against 
 by requiring, as is in fact generally done for other reasons, witnesses to 
 remain in court until the testimony is finished. On the other hand, this 
 rule would be productive of intolerable mischiefs, were it not mitigated 
 by the somewhat awkward and inconvenient expedient of suspending 
 the regular course of testimony, for the purpose of recalling the witness 
 proposed to be impeached and laying a foundation for the impeaching 
 testimony by interrogating him whether he did or said the things pro- 
 posed to be proved. Besides, the privilege of doing this will he lost in 
 all those cases where the witness has left court and cannot be found; 
 the opposite party has every inducement to cut off this opportunity by 
 immediately discharging all such as he may have reason to suspect are 
 liable to be impugned. In addition to this, the avowed attempt to pro- 
 
 7 — Compare the authorities cited in W., 5§ 1025-1029. 
 
No. 134. CONTRADICTION AND SELF-CONTRADICTION. 135 
 
 duce self-impeachment, made of course in a tone and manner evincing 
 distrust of the general narrative, too often both surprises and discon- 
 certs a modest witness. He answers hastily and confusedly, as is natural 
 from having such a collateral matter hastily spring upon him. Every 
 one conversant with judicial proceedings must have often observed with 
 pain an apparent contradiction produced in this way, when he is satisfied 
 none would have existed under a different mode of proceeding. ... To 
 my mind these considerations present very formidable objections to the 
 practice first authoritatively developed on the trial of the Queen in the 
 House of Lords. . . . [But, assuming the rule to be in general a part of 
 the law, its enforcement in the particular case now before the Court] 
 would impose on a party wishing the privilege of impeachment the 
 necessity of attending, in person or by counsel, at the taking of every 
 deposition to be used against him, within or without the State, which 
 on any other account he might not be disposed to do. Besides, in many 
 cases the deponent may be wholly unknown to him; he may have no 
 knowledge of the matter to be testified to until actually given ; the notice 
 of the taking may be barely sufficient to enable him to reach the place 
 perhaps hundreds of miles distant, in season to be present. It would be 
 idle under such circumstances to expect a party to be prepared to go 
 through with this preliminary ceremony. The result would be, he would 
 be least able to shield himself against partial or false testimony precise- 
 ly when such protection is most needed. It is true, the deponent, being 
 absent from the trial, hears not the impeaching testimony and cannot be 
 called upon to contradict or explain it. This may be an evil, but it is 
 unavoidable from the nature of the case. It would be a worse evil to 
 deny the right of impeaching depositions unless under regulations which 
 would reduce the right to a nullity."* 
 
 Topic VI : Admissions. 
 
 STATE V. WILLIS (1898). 
 
 71 Conn. 2(f3, 41 Atl. 820. 
 
 Hamersley, J.: "Admissions are not admitted as testimony of the 
 declarant in respect to any facts in issue. . . . They are admitted because 
 conduct of a party to the proceeding, in respect to the matter in 
 dispute, whether by acts, speech, or writing, which is clearly in- 
 consistent with the truth of his contention, is a fact relevant to the 
 issue."^ 
 
 8 — Compare the authorities cited in W., vided they be voluntary, are admissible 
 
 S§ 1030-1034. against him, as it is fair to presume they 
 
 9—Truby v. Seybert, iz Pa. St. loi correspond with the truth; and it is his 
 
 (1849): Bell, J.: "A man's acts, con- fault if they do not" 
 duct, and declarations wherever made, pro- 
 
136 TESTIMONIAL IMPEACHMENT. No. 135. 
 
 HEANE V. ROGERS (1829). 
 
 p B.&C. 577, 586. 
 
 Bayley, J., referring to an admission of the title of an assignee in 
 tankruptcy : "There is no doubt but that the express admissions of a 
 party to the suit, or admissions implied from his conduct, are 
 evidence, and strong evidence, against him. But we think that 
 he is at liberty to prove that such admissions were mistaken or were 
 untrue, and is not estopped or concluded by them, unless another person 
 has been induced by them to alter his condition ; in such a case the party 
 is estopped from disputing their truth with respect to that person (and 
 those claiming under him) and that transaction; but as to third persons 
 he is not bound." 
 
 CORSER V. PAUL (i860). 
 
 31 N. H. 24, 31. 
 
 Bell, C. J.: "There is a class of admissions which may be either 
 express or implied from silence, or acquiescence, which are conclusive. 
 Such are admissions which have been acted upon, or those which 
 have been made to influence the conduct of others, or to derive 
 some advantage to the party, and which, therefore, cannot be denied 
 without a breach of good faith. As if, for example, in the present case, 
 the defendant had stood by and seen this note offered to the bank for 
 discount; and, being aware of what was doing, had been silent; or if, 
 before the discount he had been spoken to by any of the officers of the 
 bank in relation to the note, and, being aware of the facts, had forborne 
 to deny the signature — by these tacit admissions he would be forever 
 concluded to deny the note to be his, in case the bank discounted it. 
 This is but an application of the same principle that is applied in the 
 case of deeds of real estate, that he who stands by, at the sale of his 
 property by another person, without objecting, will be precluded from 
 contesting the purchaser's title." 
 
 COLLINS V. MACK (1877). 
 
 31 Ark. 684. 
 
 Breach of promise of marriage. The plaintiff had been delivered of 
 a child, of which the defendant was the father. Verdict for the plain- 
 tiff. English, C. J.: "Appellant called as a witness Dr. Joshua 
 Henly, who testified that he was a practicing physician, and was 
 ■called to attend appellee in her confinement at the time she was delivered 
 of the child spoken of by her in her testimony. Appellant offered to 
 prove by this witness that during said visit and attendance, and about 
 six hours after she was delivered of her child, appellee told witness that 
 
No.. 138. party's admissions. 137 
 
 she and appellant never had been engaged, and that he never had prom- 
 ised to marry her. Upon the objection of appellee, the Court excluded 
 this evidence, but upon what ground, does not appear in the transcript. 
 Not, surely, on the ground that the admission was a confidential com- 
 munication to the witness, necessary to enable him to prescribe for ap- 
 pellee as a physician, or to do any act for her as a surgeon, (Gantt's 
 Digest, sec. 2485,) for her statement to him was not of that character. 
 Nor do we think that the admission could properly have been excluded 
 on the ground that appellee had not, while on the stand as a witness, 
 been asked if she had made such admission. She sustained two rela- 
 tions to the suit: First, as plaintiff; second, as a witness in her own 
 behalf. By becoming a witness, she did not lose her character as 
 plaintiff. The acts and declarations of a party to a suit, when they 
 afford any presumption against him, may be proven by the opposing 
 party. Appellee has stated, on her examination, that appellant had 
 promised to marry her. Had she been a witness in the cause only, 
 and not a party, appellant could not have discredited her, by proving 
 that she had made a contrary statement on some former occasion, with- 
 out first interrogating her as to such former statement. By making her- 
 self a witness in her own behalf, appellee could not cut off, or impair, 
 the full right of the appellant to prove her admissions or declarations as 
 a party. Had the proposed evidence of her admission been admitted, she 
 could have been recalled and examined by her counsel in regard to it."* 
 
 FRANKLIN BANK v. PENNSYLVANIA D. & M. S. N. Co. (1839). 
 
 II G. & J. 28, 33. 
 
 In an action for the loss of a package sent by the plaintiff through 
 the defendant, the cashier, Mitchell, of the bank to which the package 
 was consigned testified: that he was absent from Philadelphia 
 ■'^*' from about the loth until the 27th of November, 1834; that on 
 his return he found two letters at the Mechanics' Bank, addressed to 
 him from the cashier of the plaintiffs ; the first of the 17th of November, 
 1834, advising him of the forwarding of the package by the steam 
 boat line of the defendant, which hati been received at the bank, and 
 opened in his absence, which it was the duty of the president to do; 
 and the second of the 21st of the same month, requesting him to make- 
 inquiry at the office of the steam boat line, by which the package had 
 been forwarded; that within a day or two after his return, he applied 
 at the office, to Davidson the agent of the defendants, for the package, 
 and thinks he showed him the letter from the cashier of the plaintiffs 
 of the 2 1st of November 1834, who told him, that on the evening of 
 the i8th of November 1834, there were a number of persons in the office, 
 when the trunk was opened by the clerk, and the packages handed out 
 
 9 — Compare the authorities cited in W., ? 1051. 
 
138 TESTIMONIAL IMPEACHMENT. No. 138. 
 
 by the porter to the clerk; that there was a package addressed to 
 Mr. Mitchell; but whether to Mr. Mitchell the witness, or to a dry 
 goods merchant of that name, he did not know, nor did he know that 
 it contained bank notes; and that the package was thrown upon the 
 desk, and which was the last that he, Davidson, knew of it. 
 
 Buchanan, J.: "The evidence offered in this case and rejected by 
 the court below, is of a conversation alleged to have taken place between 
 Davidson, the agent of the defendants, and the witness, some eight or 
 ten days after the transaction to which it relates, and after the loss of 
 the package in question, when the agency for the delivery of it to the 
 person to whom it was addressed had ceased, not constituting a part of 
 the transaction, but a subsequent account only of what had before 
 occurred respecting it. It cannot therefore be treated as a statement or 
 admission by the defendants, and as such binding upon them, and admis- 
 sible in evidence ; but must be considered as a mere narrative of facts by 
 Davidson, of his own authority, to be proved by him on oath, if within 
 his own knowledge, or by some other witness, and not by evidence of his 
 statement of them, which is forbidden by the general rule of law in rela- 
 tion to hearsay evidence. The principle upon which the declarations or 
 representations of an agent, within the scope of his authority, are per- 
 mitted to be proved, is, that such declarations, as well as his acts, are 
 considered and treated as the declarations of his principal. What is so 
 done by an agent, is done by the principal through him, as his mere instru- 
 ment. So whatever is said by an agent, either in the making a contract 
 for his principal, or at the time, and accompanying the performance of 
 any act, within the scope of his authority, having relation to, and con- 
 nected with, and in the course of the particular contract or transaction in 
 which he is then engaged, is, in legal effect, said by his principal, and 
 admissible in evidence ; not merely because it is the declaration or admis- 
 sion of an agent; but on the ground, that being made at the time of and 
 accompanying the contract or transaction, it is treated as the declaration 
 or admission of the principal, constituting a part of the res gesia, a part 
 of the contract or transaction, and as binding upon him as if in fact made 
 by himself. But declarations or admissions by an agent, of his own au- 
 thority, and not accompanying the making of a contract, or the doing of 
 an act, in behalf of his principal, nor made at the time he is engaged in 
 the transaction to which they refer, are not binding upon his principal 
 not being part of the res gestae, and not admissible in evidence, but come 
 within the general rule of law, excluding hearsay evidence ; being but an 
 account or statement by an agent of what has passed or been done or 
 omitted to be done, — not a part of the transaction, but only statements 
 or admissions respecting it."^" 
 
 10 — Wilde, C. J., in Watson v. King, 3 been proved to have held the premises at 
 
 C. B. 608 (1846): "The attorney is not a certain rent) that one of the plaintiff'3 
 
 the agent of the client for the purpose of witnesses heard the plaintiff's attorney say 
 
 making admissions, except in the cause and that there was an agreement in writing, 
 
 for the purpose of the cause. All that That clearly was no evidence at all to af- 
 
 appeared here was (the defendant having feet the plaintiff." 
 
No. 139. party's admissions. 139 
 
 GIBBLEHOUSE v. STONG (1832). 
 3 Rawle 436, 445. 
 
 Frederick Stong, the defendant in error, brought an ejectment 
 against the plaintiffs in error, John Gibblehouse and John Brandt, 
 to recover two lots of ground in Whitpain township, one of them 
 -'■*'" containing three-quarters of an acre, with a dwelling-house, and 
 ■other buildings erected on it, and the other containing five acres. The 
 plaintiff below claimed under a deed dated 1st of April, 1813, from David 
 Johnson, in whom it was admitted the legal title to both the lots was 
 vested, one of them by deed dated the ist of April, 181 1, from S. 
 Slingluff, and wife, the other by deed dated the 13th of May, 1811, 
 from Samuel Ashmead to him. Gibblehouse was the tenant of Brandt, 
 who alleged that David Johnson was the mere trustee of his brother 
 Edward Johnson, for whose use he held the legal title to the lots in 
 <lispute, and that he Brandt, had purchased them as the property of 
 Edward Johnson at a sheriff's sale under an execution upon a judg- 
 ment obtained by Brandt against Edward Johnson. The defend- 
 ant's counsel offered to prove declarations made by David Johnson, 
 -after the purchase from Slingluff and Ashmead, and before the sale of 
 the property to any person, that he, David Johnson, never paid any 
 part of the purchase money, but that he held the title as trustee for 
 Edward Johnson, and that Edward Johnson had paid the purchase- 
 money for it. The court decided that the witness could not give any 
 evidence of any declarations made by David Johnson, unless such dec- 
 larations were made at the time, or immediately before, or immediately 
 after the execution of the deeds to him, or by him to the plaintiff, or 
 in the presence of the opposite party; David Johnson being a compe- 
 tent witness, and from anything which appears to the contrary, in full 
 life, and within reach of the process of the court. 
 
 Kennedy, J.: "In the case before us the testimony offered and 
 rejected was not of that character which in a technical and legal sense 
 comes under the denomination of hearsay. It comes under what is 
 considered the declarations or admissions of the party to the suit or 
 his privies, that is, those under whom he claims; in respect to which 
 the general rule of law is just as well settled that they shall be received 
 in evidence as that hearsay shall not. All a man's own declarations 
 and acts, and also the declarations and acts of others to which he is 
 privy, are evidence, so far as they afford any presumption against him, 
 whether such declarations amount to an admission of any fact, or such 
 acts and declarations of others to which he is privy afford any pre- 
 sumption or inference against him. . . . The confessions of the party 
 liimself (which I do not understand to be denied) have always been 
 considered good and admissible evidence of any fact admitted by them 
 to be true, and may be given in evidence to prove it, notwithstanding 
 
140 TESTIMONIAL IMPEACHMENT. No. 139. 
 
 the confessions might be such as to show that twenty witnesses were 
 present who could all testify to its existence or non-existence, and who 
 might all appear to be in the court-house at the time when such con- 
 fessions should happen to be offered in evidence against the party making 
 them. And this rule of admitting the confessions or declarations of 
 the party extends not only to the admission of them against himself, 
 but against all who claim or derive their title from him ; in other words, 
 between whom and himself there is a privity. There are four species 
 of privity: privity in blood, as between heir and ancestor; privity in 
 representation, as between testator and executor, or the intestate and 
 his administrators; privity in law, as between the commonwealth by 
 escheat and the person dying last seised without blood or privity of 
 estate ; and privity in estate as between the donor and the donee, lessor 
 and the lessee, vendor and the vendee, assignor and the assignee, etc. 
 . . . Upon this same principle it is, that executors and administrators, 
 as also devisees, legatees, heirs and next of kin, are all bound by the 
 promises, whether written or verbal, of their respective testators or 
 intestates, so far as they may have received estates from them that are 
 liable, and the declarations and admissions of such testators and intes- 
 tates are uniformly received in evidence against their devisees, legatees, 
 heirs, and next of kin, so as to affect the estates which have passed to 
 them. Privies in estates, such as vendee and vendor, assignee and 
 assignor, stand upon the same footing in this respect to each other that 
 privies in blood do. I know of no distinction. That which is binding 
 upon the vendor will generally be equally so upon his vendee; and 
 whatever would have been admissible as evidence against the former, 
 ought not only to be so against the latter, but ought to have the same 
 effect too."" 
 
 cuYLER V. McCartney (1869). 
 
 40 N. Y. 221, 22/. 
 
 The action was brought by the plaintiff, as assignee of William 
 T. Cuyler, to recover for the alleged .conversion of certain personal 
 property, included in the assignment, but seized by the defendant, 
 '■^^ McCartney, sheriff of the county of Livingston, under executions 
 in his hands, issued upon certain judgments recovered by the other 
 defendants against the assignor. William T. Cuyler, about the 
 31st of August, 1857, conveyed to George W, Cuyler and William B. 
 Wooster, the original plaintiffs, all his real and personal property,, in 
 trust for his creditors, giving certain preferences. The assignees took, 
 or claimed to have taken, possession of the assigned property on the 
 same day. In October following, the defendant, McCartney, then 
 sheriff of Livingston county, levied on about $45,000 worth of the 
 
 II — Compare the authorities cited in W., §§ 1080-1083. 
 
No. 140. party's admissions. 141 
 
 assigned property, to satisfy certain executions then in his hands. This 
 levy the plaintiff insists was a wrongful taking; and the defendants 
 justify, alleging that the assignment was fraudulent and void, as made 
 with intent to hinder, delay, and defraud the creditors of William T. 
 Cuyler, the assignor. Upon the trial numerous exceptions were 
 taken by the plaintiff to the admission of evidence offered by the 
 defendants, especially of declarations and acts of the assignor, subsequent 
 to the assignment. 
 
 Woodruff, J. : "I concur fully in the proposition that after the exe- 
 cution and delivery of an assignment for the benefit of creditors, and 
 the entry of the trustees upon the performance of a trust, by taking 
 possession of the assigned property, the assignor cannot, by his declara- 
 tions or admissions, out of court, invalidate the assignment or furnish 
 evidence of his own or the trustees' fraudulent intent in making or 
 receiving it, for the purpose of defeating the claim of the trustees to 
 hold and administer the property according to the trust. . . . [The 
 admissibility of these declarations is insisted upon for the reason] that 
 other evidence showed that the assignor and assignees were combined 
 in a conspiracy to defraud the creditors of William T. Cuyler, and 
 therefore the acts and declarations of either conspirator, while carrying 
 the common intent into execution, and in furtherance thereof, are com- 
 petent evidence to affect all the co-conspirators. This rule is not ques- 
 tioned. . . . [But] it is not and cannot be successfully claimed that mere 
 proof that assignor and assignee have concurred in an assignment pro- 
 viding for the payment of debts, establishes a conspiracy within the rule. 
 Delivering and accepting such an assignment establishes a common intent, 
 but not a common intent to defraud. If mere proof of concurrence in the 
 execution and delivery of the assignment established a common intent 
 within- the principle making the acts and declarations of the conspira- 
 tors, while carrying their common design into execution, evidence against 
 each other, then the rule first above stated [«. e. that declarations after 
 transfer of title are inadmissible] is made a nullity. No sooner is an 
 assignment made than the assignor may, by his acts or declarations out 
 of court, defeat it, if he be dishonest enough to collude with any creditor, 
 or to resent any dissatisfaction with the trustees, and defeat it by such 
 means. To make such admissions or declarations competent evidence, 
 it must stand as a fact in the cause, admitted or proved, that the assignor 
 and assignees were in conspiracy to defraud the creditors. If that 
 fact exist, then the acts and declarations of either, made in execution 
 of the common purpose, and in aid of its fulfilment, are competent 
 against either of them. The principle of its admissibility assumes that 
 fact. It necessarily follows that those declarations or admissions cannot 
 be received to prove the fact itself."^^ 
 
 12— Compare the authorities cited in W., tion of transfer under the Verbal Act rule, 
 § io86. see post. No. 363. 
 
 For the admissibility of such declara- 
 
142 TESTIMONIAL IMPEACHMENT. No. 141. 
 
 COMMONWEALTH v. KENNEY (1847). 
 12 Mete. 2S5. 
 
 Larceny of a bag of money. John S. Brewer was called by the 
 attorney for the commonwealth, and testified that he was in one of 
 the watch houses, in Boston, between eleven and twelve o'clock in 
 •'■** the evening of September Sth, 1846, and that while he was there two 
 of the watchmen of the city, having the defendant in custody, came in; 
 that one of the watchmen said, "here is a man that has been robbing 
 a man;" that presently Russell, the person named in the indictment 
 as having been robbed, came in crying, and said, "that man" pointing 
 to the defendant, "has stolen my money;" . . . that the witness . . . 
 saw a bag, which he took up, and thereupon said, "here is the bag;" 
 the defendant then being on the stairs, going down cellar, and within 
 hearing; that Russell immediately said, "that is my bag;" that Baxter 
 then took the bag, and counted the money in it; and that while Baxter 
 was counting the money — the defendant then standing in the watch 
 house — Russell said, "that was all the money I had in the world;'' 
 and that the defendant made no reply to any of the aforesaid declara- 
 tions. 
 
 Shaw, C. J. : "The admissibility of the evidence depends on the 
 question whether the statements of Russell in the hearing of the de- 
 fendant, and the silence of the latter, do amount to a tacit admission 
 of the facts stated. It depends on this: If a statement is made in the 
 hearing of another, in regard to facts affecting his rights, and he 
 makes a reply, wholly or partially admitting their truth, then the dec- 
 laration and the reply are both admissible; the reply, because it is the 
 act of the party, who will not be presumed to admit any thing affecting 
 his own interest, or his own rights, unless compelled to it by the force 
 of truth; and the declaration, because it may give meaning and effect 
 to the reply. ... In some cases, where a similar declaration is made 
 in one's hearing, and he makes no reply, it may be a tacit admission 
 of the facts. But this depends on two facts : first, whether he hears 
 and understands the statement, and comprehends its bearing; and 
 secondly, whether the truth of the facts embraced in the statement is 
 within his own knowledge, or not ; whether he is in such a situation that 
 Tie is at liberty to make any reply; and whether the statement is made 
 tmder such circumstances, and by such persons, as naturally to call 
 for a reply, if he did not intend to admit it. If made in the course of 
 any judicial hearing, he could not interfere and deny the statement; 
 it would be to charge the witness with perjury, and alike inconsistent 
 with decorum and the rules of law. So, if the matter is of something not 
 within his knowledge; if the statement is made by a stranger, whom 
 he is not called on to notice; or if he is restrained by fear, by doubts 
 of his rights, by a belief that his security will be best promoted by 
 
No. 142. party's admissions. 143 
 
 his silence; then no inference of assent can be drawn from that silence, 
 perhaps it is within the province of the judge, who must consider these 
 preliminary questions in the first instance to decide ultimately upon 
 them. . . . The circumstances were such, that the court are of opinion 
 that the declaration of the party robbed, to which the defendant made 
 no reply, ought not to have been received as competent evidence of 
 his admission, either of the fact of stealing, or that the bag and money 
 were the property of the party alleged to be robbed. The declaration 
 made by the officer, who first brought the defendant to the watch house, 
 he had certainly no occasion to reply to. The subsequent statement, 
 if made in the hearing of the defendant (of which we think there was 
 evidence,) was made whilst he was under arrest, and in the custody 
 of persons having official authority. They were made, by an excited, 
 complaining party, to such officers, who were just putting him into 
 confinement. If not strictly an official complaint to officers of the 
 law, it was a proceeding very similar to it, and he might well suppose 
 that he had no right to say any thing until regularly called upon to 
 answer."^^ 
 
 JOHN HORNE TOOKE'S TRIAL (1794). 
 
 25 How. St. Tr. I, 120. 
 
 Treason; a certain paper, addressed to Mr. Tooke and found at 
 his house, was offered against him; Mr. Tooke "I do not know what 
 papers may have been taken from my house; but are letters 
 written to me to be produced as evidence against me?" L. C. J. 
 Eyre: "Being found in your possession, they undoubtedly are pro- 
 ducible as evidence; but, as to the effect of them, very much will 
 depend upon the circumstances of the contents of those letters, and 
 whether answers to them can be traced, or whether anything has been 
 done upon them. A great number of papers may be found in a man's 
 possession which will be, prima facie, evidence against him, but will 
 be open to a variety of explanations; and it is always a very consider- 
 able explanation that nothing appears to have been done in conse- 
 quence of the paper being sent to him. But all papers found in the 
 possession of a man are, prima facie, evidence against him, if the con- 
 tents of them have application to the subject under consideration." 
 Mr. Tooke: "The reason of my asking it is, I am very much afraid 
 that, besides treason, I may be charged with blasphemy." L. C. J. 
 Eyre: "You are not tried for that." Mr. Tooke: "It is notorious I 
 do not answer common letters of civility, but I have received and kept 
 many curious letters. I received some letters from a man whose name 
 is Oliver Verall, and he endeavoured to prove to me that he was God 
 the Father, Son, and Holy Ghost. He proved it from the Old Testa- 
 ment; in the first place he was God the Father, because God is Veral; 
 
 13 — Compare the authorities cited in W., § 1072. 
 
144 TESTIMONIAL IMPEACHMENT. No. 142. 
 
 that is, God over alL He proved he was God the Son, from the New 
 Testament — verily, verily I am he; that is Veral I, Veral I, I am he. 
 Now, if these letters, written to me, which I, from curiosity, have pre- 
 served, but upon which I have taken no step, and to which I have given 
 no answer, are produced against me, I do not know what may become 
 of me." L. C. J. Eyre: "If you can treat all the letters that have been 
 found upon you with as much success as you have these letters of your 
 correspondent, you will have no great reason for apprehension, even 
 if that letter should be brought against you."^* 
 
 FAIRLIE V. DENTON (1828). 
 3C.&P. 103. 
 
 Money had and received. Plea — Gfeneral issue. The plaintiff had 
 
 sent a letter to the defendants, demanding a sum of money as due to 
 
 him. But no answer had been returned by the defendants. The 
 
 plaintiff's counsel called for the letter under a notice to produce, 
 
 with a view to reading it in evidence, as a part of their case. 
 
 Scarlett, A. G., for the defendants, objected, that " an unanswered 
 letter, written by the plaintiff, was not evidence in his own favour ; for 
 otherwise a party would only have to write a letter to make evidence 
 for himself." J^. Pollock, contra: "Certain things are stated in this let- 
 ter, which the defendants might deny by answering it ; and I submit that 
 it is evidence, exactly the same as what is said verbally in the presence 
 of a defendant is evidence against him, though he may make no answer." 
 L. C. J. Tentekden : "I am slow to admit that. What is said to a man 
 before his face he is in some degree called on to contradict, if he does 
 not acquiesce in it. But the not answering a letter is quite different ; and 
 it is too much to say that a man, by omitting to answer a letter, 
 at all events admits the truth of the statements that letter con- 
 tains. . . . You may have that single line read, in which the plaintiff 
 makes a demand of a certain amount, but not any other part which states 
 any supposed fact or facts."^* 
 
 HARTFORD BRIDGE CO. V. GRANGER (1822). 
 
 /^ Conn. 142, 148. 
 
 Action on a covenant to build a drawbridge according to plans. 
 
 The plaintiffs offered to prove by James R. Woodbridge, that long after 
 
 the first of March, 1819, the defendant Granger came to his, 
 
 Woodbridge's store, where he met with Ward Woodbridge, one 
 
 of the directors of the company, who complained to Granger, that the 
 
 draw was not such as it ought to be ; to which Granger replied, that he 
 
 14 — Compare the authorities cited in W., § 1073. 
 
No. 145. party's admissions. 145 
 
 knew it was not such an one as they wanted, and that if the directors 
 would furnish him with a plan, he would conform the draw to such plan, 
 hut that he could not make it conformable to the plan of Eli Whitney, 
 "because it would cost too much. The defendant's counsel, for the pur- 
 pose of raising an objection to this evidence, asked James R. Wood- 
 bridge, if such conversation was not had with a view to a compromise; 
 to which the witness answered, that in the conversation. Granger asked 
 Ward Woodbridge how much money he would accept, and discharge him 
 from doing anything more to the draw. The defendants then urged their 
 objections to the evidence offered by the plaintiffs; and the judge rejected 
 it. HosMER, C. J.: "The law on this subject has often been miscon- 
 ceived ; and it is time that it should be firmly established. It is never the 
 intendment of the law to shut out the truth; but to repel any inference 
 which may arise from a proposition made, not with design to admit the 
 existence of a fact, but merely to buy one's peace. If an admission, 
 however, is made,, because it is a fact, the evidence to prove it is com- 
 petent, whatever motive may have prompted to the declaration. In illus- 
 tration of this remark, it may be observed, that if A. offer to B. ten pounds, 
 in satisfaction of his claim of an hundred pounds, merely to prevent a 
 suit, or purchase tranquillity; this implies no admission that any sum 
 is due; and therefore, testimony to prove the fact must be rejected, 
 because it evinces nothing concerning the merits of the controversy. 
 But if A. admit a particular item in an account, or any other fact, mean- 
 ing to make the admission as being true, this is good evidence, although 
 the object of the conversation was to compromise an existing contro- 
 versy. The question to be considered is, what was the view and intention 
 of the party in making the admission; whether it was to concede a fact 
 hypothetically, in order to effect a settlement, or to declare a fact really 
 to exist. There is no point of honour guarded by the Court, nor exclu- 
 sion of evidence, lest it should deter from a free conversation. But tes- 
 timony of admissions or declarations taking facts for granted, not because 
 they are true, but because good policy constrains the temporary yielding 
 of them to effectuate a greater good, is not admissible; truth being the 
 object of evidence."^^ 
 
 CRAIG dem. ANNESLEY v. EARL OF ANGLESEA (1743). 
 
 J/ How. St. Tr. i2iy. 
 
 In this celebrated case the plaintiff claimed to be the legitimate son 
 of the defendant's brother, and the true heir to the estates and peerage. 
 He showed that at the age of fourteen he had been kidnapped by 
 ■'■ * the defendant's procurement and transported to Pennsylvania, and 
 after fifteen years' slavery had escaped back to England and instituted 
 a suit to obtain his rights; while on the way to begin proceedings, he 
 joined the gamekeeper of a friend in catching some poachers, and one of 
 
 IS — Compare the authorities cited in W., § 1062. 
 
146 TESTIMONIAL IMPEACHMENT. No. 145, 
 
 them was killed by a shot from his gun, which he claimed went off acci- 
 dentally ; he had been tried for murder and acquitted. He now proposed 
 to show "that the relations of the deceased, being convinced that the 
 killing was only accidental, had intended a very slight prosecution, but 
 that the defendant, who was in no way related to or acquainted with the 
 person killed, employed a solicitor and carried on a severe prosecution 
 against Mr. Annesley at a very great expense, and declared 'he would 
 spend £10,000 to get him hanged' ", the purpose of this evidence was to 
 "strengthen that evidence of the defendant's spiriting away the lessor of 
 the plaintiff, and show the defendant's continued design of removing this 
 gentleman from any possibility of asserting his birthright.'' 
 
 MouNTENEY, B. : "The foundation of my opinion is this : Every act 
 done by the defendant, which hath a tendency to show a consciousness in 
 him of title in the lessor of the plaintiff, must I think be admitted, beyoijd 
 all controversy, to be pertinent and legal evidence in the present cause. 
 I think that the evidence now offered hath that tendency, and conse- 
 quently is proper to be admitted. This evidence of the prosecution, in 
 my apprehension, stands exactly on the same footing with the evidence 
 of the kidnapping, . . . for I can by no means enter into the distinction 
 of lawful and unlawful acts, which seems to have so much weight with 
 my lord chief baron. That unlawful act was not therefore, in my appre- 
 hension, to be admitted in evidence because unlawful, but because it had 
 a tendency to show such a consciousness as I have mentioned in the 
 defendant; and if the carrying on the prosecution (which must be ad- 
 mitted to be a very extraordinary, though lawful, act of the defendant) 
 hath the same tendency, it ought upon the same principle to be admitted." 
 
 Bowes, C. B. (charging the jury) : "You will also consider whether 
 these acts are not evidence to satisfy you that the defendant, in his own 
 thoughts and way of reasoning, considered the staying of the boy here 
 as what might some way prejudice his title. But whether, as insisted 
 upon by the plaintiff's counsel, you ought to take this as an admission on 
 the part of the defendant that the plaintiff was the lawful son of Lord 
 Altham [earl of Anglesea], will deserve further consideration. Un- 
 doubtedly there is a violent presumption, because no man is supposed to 
 be wicked without design, and the design in this act must be some way 
 or other relative to the title ; but whether or no it was the opinion of the 
 trouble he might have from this lad that induced him to do the act, or a 
 consciousness that the lad was the son of Lord Altham, must be left to 
 your determination."'^* 
 
 16 — Shaw, C. J., in Com. v. Webster, 5 ness of guilt, and, when proved, to exert 
 
 Cush. 295, 376 (1850): "To the same an influence against the accused. But 
 
 head may be referred all attempts on the this consideration is not to be pressed too 
 
 part of the accused to suppress evidence, urgently; because an innocent man, when 
 
 to suggest false and deceptive explana- placed by circumstances in' a condition of 
 
 tions, and to cast suspicion without just suspicion and danger, may resort to decep- 
 
 cause on other persons, — all or any of tion in the hope of avoiding the force of 
 
 which tend somewhat to prove conscious- such proofs." 
 
No. 147. party's admissions. 147 
 
 STARR V. UNITED STATES (1897). 
 164 U. S. 627, ij Sup. 224. 
 ALBERTY v. UNITED STATES (1896). 
 162 U. S. 4PP, 16 Sup. 864. 
 Parker, J., in the Federal District Court for Western Arkansas, 
 charging the jury: "The law says that a man is to be judged by his 
 consciousness of the right or wrong of what he does, to some 
 ^*" extent. If he flees from justice because of that act, if he goes 
 to a distant country, and is living under an assumed name because of 
 that fact, the law says that is not in harmony with what innocent men 
 do, and jurors have a right to consider it as an evidence of guilt, because 
 he is an eyewitness to the occurrence, he knows how it did transpire, 
 he is presumed to have a consciousness of that act. ... It is a principle 
 of human nature — and every man is conscious of it, I apprehend — that, 
 if he does an act which he is conscious is wrong, his conduct will be 
 along a certain line. He will pursue a certain course, not in harmony 
 with the conduct of a man who is conscious that he has done an act 
 which is innocent, right, and proper. The truth is — and it is an old 
 scriptural adage — 'that the wicked flee when no man pursueth, but the 
 righteous are as bold as a lion.' Men who are conscious of right have 
 nothing to fear. They do not hesitate to confront a jury of their coun- 
 try, because that jury will protect them. It will shield them, and the 
 more light there is let in upon their case the better it is for them. We 
 are all conscious of that condition, and it is therefore a proposition of 
 the law that, when a man flees, the fact that he does so may be taken 
 against him, provided he does not explain it away upon some other theory 
 than that of his flight because of his guilt.''^^ 
 
 ARMORY v. DELAMIRIE (1722). 
 
 I Strange .50$. 
 
 A chimney-sweeper's boy, finding a jewel, took it to the defendant, 
 a jeweler, for appraisal, but the defendant would not restore it. In an 
 action of trover, in proving the value, "the Chief Justice [Pratt] 
 *' directed the jury that unless the defendant did produce the jewel 
 and show it not to be of the finest water, they should presume the 
 strongest against him, and make the value of the best jewels the meas- 
 ure of their damages; which they accordingly did."^^ ' 
 
 M'REYNOLDS v. M'CORD (1837). 
 6 Watts 288, 2po. 
 Ejectment for the undivided half of 250 acres of land. It appeared 
 in evidence that James Dill and Matthew Dill were the owners of this 
 
 17 — Compare the authorities cited in W., i8 — Voung v. Holmes, i Stra. 70 
 
 J{ 273-284. (1718); Ejectment for a leasehold: "It 
 
148 , TESTIMONIAL IMPEACHMENT, No. 148, 
 
 land, and that Matthew's title afterwards became vested in James. 
 
 The plaintiffs allege that the title to the land was in dispute some- 
 time between iSii and 1815, when an agreement in writing was entered 
 into between James Dill and Daniel Rees, by which the latter was to 
 have one-half of the land in dispute for his services and expenses in 
 carrying on the lawsuit for the land to conclusion, in case it should be 
 recovered. This,' in connection with proof of performance by Daniel 
 Rees, and that the plaintiffs were his heirs at law, formed the founda- 
 tion of the plaintiff's claim to recover. The principal question in 
 the cause in this court arose out of the attempt of the plaintiffs to 
 establish the written agreement referred to. The plaintiff called a 
 witness who said : "There was an agreement between James Dill and 
 Daniel Rees ; it was concerning this land, the 'Buckhorn Tract.' My 
 brother (James Dill) burnt the agreement. He let on he wanted to 
 see some of the papers, and he got them and destroyed them, and said 
 it would do me no good, and no matter what became of it. He then burnt 
 it. I never read that paper ; it was not read over to me. This was 
 the spring after my husband's death; he died in November, 1821." 
 And the other witness testified: "I think about the year 1817 or 1818, 
 Daniel Rees came to Buckthorn farm, he showed me what he said was 
 his title to it; it was a paper with the signature of James Dill. I was 
 not acquainted with the handwriting of James Dill; never saw him write. 
 I read the paper; it purported to be signed by James Dill. DanielRees 
 was then living on the land when he showed me the paper: he told me 
 he claimed by virtue of it; claimed half." The plaintiff's counsel then 
 proposed to ask the witness, what were the contents of the paper? The 
 defendant's counsel objected to the evidence, on the ground that the 
 execution of the paper had not been proved. The Court overruled the 
 objection. 
 
 Gibson, C. J.: "Preliminary to proof of contents [of a lost document], 
 and involving proof of execution, stands proof of the pre-existence in 
 the state of a valid instrument. This is a rudimental principle, which is 
 not contested. Now there was no specific proof of execution; and what 
 was there else? Everything is to be presumed in odium spoliatoris; 
 and had it certainly appeared that the destroyed paper purported to be 
 an agreement such as is attempted to be established, it would have suf- 
 ficed for the admission of subsequent evidence of its contents. ... It 
 
 being proved the defendant had the lease spoliated are what they" have been alleged 
 in her custody, and refusing to produce to be, may be in a great many instances 
 it, an attorney who had read it was al- going a great length." 
 lowed to give evidence of its contents; Best, J., in R. v. Burdett, 4 B. & Aid. 
 and the C. J. [Parker'] said, he would 122 (1820): "If the opposite party has 
 intend it made against the defendant, it it in his power to rebut it by evidence, 
 being in her power, if it was otherwise, to and yet offers none, then we have some- 
 show the contrary." thing like an admission that the presump- 
 Barker v. Ray, 2 Russ. 63, 73 (1826); tion is just . . The law does not im- 
 Eldon, L. C. : "To say that if you once pose impossibilities on parties; it expects 
 prove spoliation, you will take it for that a man who has the means of knowing 
 granted that the contents of the thing who may be witnesses shall call them." 
 
No. 149. CONFESSIONS. 149 
 
 seems clear on principle that, if there be no subscribing witness, the act 
 of destruction is itself the best evidence of which such a case is sus- 
 ceptible, because it has put it out of the party's power to submit the paper 
 to witnesses of the handwriting; and the act of a spoiler is in is nature 
 equipollent to a confession. But, before he can be fixed with the charac- 
 ter of a spoiler, the purport of the paper must be proved to have been 
 what it is surmised to have been; . . . there are few men who have not 
 papers which it would be not only innocent but prudent to destroy. . . . 
 If the paper destroyed were shown to have been an agreement for the 
 land, it would raise a presumption of identity, sufficient to dispense with 
 the ordinary proof of fexecution, and let in the contents of the paper [as 
 proved by another witness] . . . [But the witness to destruction ap- 
 peared not to have read the paper destroyed, and thus to be unable to 
 identify it.] It would seem, therefore, that the plaintiffs, in making out 
 a circumstance to stand for proof of execution, ought to have shown a 
 competent degree of knowledge [of identity] in the witness, drawn from 
 the declarations of him who destroyed the paper or from some other 
 source equally satisfactory if such there were. Had that been done, it 
 would have produced a presumption of identity and consequent execu- 
 tion."" 
 
 Topic VII : Confessions. 
 
 STATE V. NOVAK (1899). 
 
 lop la. JI1, 79 N. W. 465. 
 
 Murder; the body of Edward Murray, the deceased, was found in the 
 Tuins of the defendant's store, after it was burned down. Defendant, 
 while returning in custody of the officer who had arrested him, 
 ^** to the place of the homicide, stated to the officer that he had met 
 with financial losses, and had expected to go the day after a fire which 
 destroyed his store to an uncle to get him to endorse a note for him; 
 that his safe had been robbed ; that, to prevent further robberies, he had, 
 after consulting a physician as to how much morphine in a bottle of 
 whisky would knock out a person without killing him, prepared a bottle 
 of whisky, and placed it where it would be likely to be seen and drunk 
 by a robber working on the safe ; that Murray came into his store, and 
 in his absence drank from the bottle ; that defendant on his return dis- 
 covered this, and that Murray was in a stupor, whereupon he took him 
 up to his room over the store, and put him in his bed ; that he then laid 
 down on the counter in the store, and slept until he awoke in the night to, 
 find the store on fire ; that he attempted to get Murray out, but that the 
 smoke and heat prevented his doing so ; that he returned to the store, and 
 took $160 from the cash drawer; that, in groping his way out, he ran 
 
 19 — Compare the authorities cited in W., §§ 285-291. 
 
150 TESTIMONIAL EVIDENCE. NOi 149,i 
 
 against a shotgun, which he had placed there to take with him when he 
 went to see his uncle, as he expected to hunt on the way, and took it with 
 him ; that when he got outside of the store he realized that Murray was 
 in there; that he was heavily embarrassed, and that he thought the best 
 thing that he could do was to fall off the earth for awhile ; and then re- 
 lated to the officer the course which he took in going from the place o£ 
 the homicide in Iowa to Dawson City, Alaska. It further appeared from 
 the testimony of the officer that defendant, when arrested, denied his 
 true name, gave a fictitious one, and, on being informed that he was un- 
 der arrest for the murder of Murray committed in Iowa, denied that he 
 had ever lived there, and claimed that he was from Ohio. 
 
 Granger, J. : "Inaccurate use of such words as 'confessions,' 'admis- 
 sions,' and 'declarations' has led to some confusion in the cases ; but, on 
 authority and reason, there is a clear distinction between a confession 
 and an admission or declaration, unless the admission or declaration has 
 within it the scope and purpose of a confession, in which its distinctive 
 feature, as an admission or declaration, is lost in the broader term 'con- 
 fession.' A confession is a voluntary admission or declaration by a per- 
 son of his agency or participation in a crime. . . . To make an admission 
 or declaration a confession, it must in some way be an acknowledgement 
 of guilt. . . . The manifest purpose of [the defendant's] statements was 
 to show himself innocent, and, if his statements are true, he is innocent 
 of the crime charged; so that by no possibility could he have been in- 
 duced, because of the promise of secrecy, to relate what"" was untrue, to 
 his prejudice."^" 
 
 WARICKSHALL'S CASE (1783). 
 
 I Leach Cr. L., jd ed., 298. 
 
 A confession was obtained by a promise of favor. "It was con- 
 tended by her counsel that as the fact of finding the stolen property in 
 her custody had been obtained through the means of an inadmis- 
 ^"" sible confession, the proof of that fact ought also to be rejected; 
 for otherwise the faith which the prosecutor had pledged could be 
 violated, and the prisoner made the deluded instrument to her own 
 conviction." Nares, J., and Eyre, B. : "It is a mistaken notion that, 
 the evidence of confessions and facts which have been obtained from 
 prisoners by promises or threats is to be rejected from a regard to 
 public faith; no such rule ever prevailed. The idea is novel in 
 
 20 — Currey, C.J. , in People V. Strong, 30 pointment to meet at that place, etc.; 
 
 Cal. 157 (1866): "The word 'confessions' but it is nowhere to be found in the tes- 
 
 is not the mere equivalent of the words timony of the witnesses that he admitted 
 
 'statements' or 'declarations.* The de- or confessed to any participation in the 
 
 fendant made statements to several of homicide." 
 
 the witnesses, as they testified, respecting Compare the authorities cited in W., & 
 
 the departure of Holmes [the murdered 821. 
 man] for San Francisco, and of their ap- 
 
No. 151. CONFESSIONS. 151 
 
 theory, and would be as dangerous in practice as it is repugnant to 
 the general principles of criminal law. Confessions are received 
 in evidence, or rejected as inadmissible, under a consideration whether 
 they are or are not entitled to credit. A free and voluntary confession 
 is deserving of the highest credit, because it is presumed to flow from 
 the strongest sense of guilt, and therefore it is admitted as proof of the 
 crime to which it refers. But a confession forced from the mind by the 
 flattery of hope or by the torture of fear comes in so questionable a 
 shape when it is to be considered as evidence of guilt that no credit ought 
 to be given to it, and therefore it is rejected."^^ 
 
 REGINA v. MOORE (1852). 
 z Den. Cr. C. 522. 
 
 Wilful murder of a new-born child by its mother; verdict of guilty 
 of concealing its birth. There was offered in evidence against her a con- 
 fession made by her, in the presence of her mistress, to a surgeon 
 who attended her, of her having strangled her child with a thread, 
 and placed the dead body in a privy, where it was found, with the thread 
 around its neck. Her mistress had told her, before the surgeon came in, 
 that 'she had better speak the truth,' and, in answer, she said she would 
 tell it to the surgeon. An objection was taken, that any subsequent con- 
 fession was inadmissible. After consulting Coleridge, J., his Lordship 
 received the evidence, being of opinion that in this case, her husband not 
 being the prosecutor, nor the offence in any way connected with the 
 management of the house, the prisoner's mistress could not be considered 
 as having any control over the prosecution so as to raise a presumption 
 that the inducement held out by her would be likely to cause her to tell 
 an untruth. Mr. Creasy, for the accused: "We must not look at the 
 case as lawyers, but consider what would be the natural result of an 
 inducement by such a person. The test is not, it is submitted, Who is 
 the party to set justice in motion?, but. Who is most likely to have influ- 
 ence? Who is most natural that the prison should look to?" 
 
 Parke, B., for the eight Judges : "Perhaps it would have been better to 
 have held (when it was determined that the Judge was to decide whether 
 the confession was voluntary) that in all cases he was to decide that point 
 upon his own view of all the circumstances, including the nature of the 
 threat or inducement, and the character of the person holding it out, 
 together; not necessarily excluding the confession on account of the 
 
 21 — Shaw, C. J., in Com. v. Morey, i induced, by the pressure of hope or fear. 
 Gray 462 (1854): "The ground on which to admit facts unfavorable to him without 
 confessions made by a party accused, un- regard to their truth, in order to obtain 
 der promises of favor or threats of in- the promised relief or avoid the threat- 
 jury, are excluded as incompetent is, not ened danger, and therefore admissions so 
 because any wrong is done to the accused obtained have no just and legitimate ten- 
 in using them, but because he may be dency to prove the facts admitted." 
 
152 TESTIMONIAL EVIDENCE. No. 151, 
 
 character of the person holding out the inducement or threat. But a 
 rule has been laid down in different precedents by which we are bound, 
 and that is, if the threat or inducement is held out, actually or construct- 
 ively, by a person in authority, it cannot be received, however slight the 
 threat or inducement. And the prosecutor, magistrate, or constable, is 
 such a person ; and so the master or mistress may be. If not held out by 
 one in authority, they are clearly admissible. . . . But it is only where 
 the offence concerns the master or mistress that their holding out the 
 threat or the promise renders the confession inadmissible. ... In the 
 present case, the offence of the prisoner, in killing her child or conceal- 
 ing its dead body, was in no way an offence against the mistress of the 
 house; she was not the prosecutrix then, and there was no probability 
 of herself or the husband being the prosecutor of an indictment for that 
 offence."22 
 
 REGINA V. BALDRY (1852). 
 2 Den. Cr. C. 430. 
 
 At the Spring Assizes for the county of Suffolk, the prisoner was 
 tried before Lord Campbell, C. J., upon an indictment charging him 
 with having administered poison to his wife with intent to murder 
 her. On the part of the prosecution a police constable was called 
 whose evidence thus began : "I went to the prisoner's house on the 17th 
 December. I saw the prisoner. Dr. Vincent, and Page, another con- 
 stable, were with me. I told him what he was charged with. He made 
 no reply, and sat with his face buried in his handkerchief. I believe he 
 was crying. I said he need not say anything to criminate himself; what 
 he did say would be taken down and used as evidence against him." 
 The admission of this was objected to. 
 
 Pollock, C. B. : "Where the admonition to speak the truth has been 
 coupled with any expression importing that it would be better for him 
 to do so, it has been held that the confession was not receivable, — ^the 
 objectionable words being that it would be better to speak the truth, 
 because they import that it would be better for him to say something. 
 This was decided in the case of Reg. v. Garner, i Den. C. C. 329. The 
 true distinction between the present case and a case of that kind is, that 
 it is left to the prisoner a matter of perfect indifference whether he should 
 open his mouth or not." 
 
 Parke, B. : "I entirely agree with the Lord Chief Baron and with the 
 view taken by Lord Campbell at the trial. ... By the law of England, 
 in order to render a confession admissible in evidence it must be per- 
 fectly voluntary; and there is no doubt that any inducement in the 
 nature of a promise or of a threat held out by a person in authority, 
 ■vitiates a confession. The decisions to that effect have gone a long 
 way; whether it would not have been better to have allowed the whole 
 
 22 — Compare the authorities cited in W., §§ 829-830. 
 
No. 153. CONFESSIONS. 153 
 
 to go to the jury, it is now too late to inquire, but I think there has 
 been too much tenderness towards prisoners in this matter. I confess 
 that I cannot look at the decisions without some shame when I con- 
 sider what objections have prevailed to prevent the reception of con- 
 fessions in evidence; and I agree with the observation of Mr. Pitt Tay- 
 lor, that the rule has been extended quite too far, and that justice 
 and common sense have, too frequently, been sacrificed at the shrine of 
 mercy. We all know how it occurred. Every judge decided by him- 
 self upon the admissibility of the confession, and he did not like to 
 press against the prisoner, and took the merciful view of it. If the 
 question were res nova I cannot see how it could be argued that any 
 advantage is offered to a prisoner by his being told that what he says 
 will be used in evidence against him." 
 
 Erle, J. : "I think that the statement of the prisoner was properly 
 received. In my opinion the best defence of innocence is founded on 
 the statement which he is shown to have used when first accused; and 
 I am of opinion that when a confession is well proved it is the best evi- 
 dence that can be produced; and that unless it be clear that there was 
 either a threat, or a promise to induce it, it ought not to be excluded. 
 I am much inclined to agree with Mr. Pitt Taylor; and according to 
 my judgment, in many cases where confessions have been excluded, 
 justice and common sense have been sacrificed, not at the shrine of 
 mercy, but at the shrine of guilt. The words 'will' or 'may' as used 
 in the caution are, in effect, the same; one being absolute, the other 
 contingent. In the able argument that has been addressed to us, it 
 has been contended that the assurance that the statement -will be used, 
 promises an advantage, and should therefore exclude the confession; 
 whilst it is admitted that this supposed advantage promised contingently 
 does not exclude it. But if it be an advantage when promised posi- 
 tively, it is also a promise of advantage when made contingently, and 
 if it does not exclude in one, neither ought it in the other."''* 
 
 HENDRICKSON v. PEOPLE. (1854). 
 
 10 N. Y. jj. 
 
 The accused had been examined as a witness before the coroner, not 
 being under arrest or charge, but was not cautioned by the magistrate 
 as to his privilege not to answer incriminating questions; his an- 
 swers on this examination were received by a majority of the 
 Court. 
 
 Parker, J. : "I do not see how, upon principle, the evidence of a wit- 
 ness, not in custody and not charged with crime, taken either on a coro- 
 ner's inquest or before a committing magistrate, could be rejected. It 
 ought not to be excluded on the ground that it was taken upon oath. 
 
 23 — Compare the authorities cited in W., §§ 832-838. 
 
154 TESTIMONIAL EVIDENCE. No. 153. 
 
 The evidence is certainly none the less reliable because taken under the 
 solemnity of an oath. . . . Nor can the exclusion of the evidence de- 
 pend on the question whether there was any suspicion of the guilt of the 
 witness lurking in the heart of any person at the time the testimony was 
 taken; that would be the most dangerous of all tests, as well because of 
 the readiness with which proof of such suspicion might be secured, as of 
 the impossibility of refuting it. . . . The witness may refuse to answer, 
 and his answers are to be deemed voluntary unless he is compelled to 
 answer after having declined to do so; in the latter case only will they 
 be deemed compulsory and excluded." 
 
 Selden, J., dissenting : "The mental disturbance produced by a direct 
 accusation, or even a consciousness of being suspected of crime is always 
 great, and in many cases incalculable. The foundation of all reliance upon 
 human testimony is that moral sentiment which universally leads men, 
 when not under some strong counteracting influence, to tell the truth. 
 This sentiment is sufficiently powerful to resist a trifling motive, but will 
 not withstand the fear of conviction for crime. Hence, the moment that 
 fear seizes the mind, the basis of all reliance upon its manifestations is 
 gone The mind, confused and agitated by the apprehension of dan- 
 ger, cannot reason with coolness, and it resorts to falsehood when truth 
 would be safer, and is hurried into acknowledgements which the facts 
 do not warrant. Neither false statement nor confessions, therefore, af- 
 ford any certain evidence of guilt when made under the excitement of 
 an impending prosecution for crime." 
 
 PEOPLE v. McMAHON (1857). 
 
 15 N. Y. 38. 
 
 The accused had been examined as a witness before coroner, but was 
 at the time in custody charged as the offender; his answers on this ex- 
 amination were rejected.^* Selden, J. : "The word 'voluntary' in 
 ■'■^* judicial examinations means] 'proceeding from the spontaneous 
 suggestion of the party's own mind,' 'free from the influence of any dis- 
 turbing cause.' ... It is considered that a judicial oath, administered 
 when the mind is disturbed and agitated by a criminal charge, may have 
 that effect [of preventing free and voluntary mental action], and hence 
 the exclusion. . . . [Hence, such an examination under oath is not to be 
 rejected] unless that oath was administered in the course of some judi- 
 cial inquiry in regard to the crime itself for which the prisoner is on trial ; 
 . . . [while it is also necessarily admissible] if at the time it was made 
 the prisoner was not himself resting under any charge or suspicion of 
 having committed the crime." 
 
 24— The membership of the Court had changed since the decision in People V. 
 
 Hendrickson, 
 
No. 156. CONFESSIONS. 155 
 
 TEACHOUT V. PEOPLE (1869). 
 
 41 N. Y. II. 
 
 The accused had been examined as a witness before the coroner, 
 -while under suspicion and after notice that he would probably be arrested, 
 and the coroner had cautioned him as to his right not to answer ; 
 ^^ two judges, dissenting, invoked the ruling in People v. McMahon; 
 the majority, repudiating the reasoning of that opinion, held the answers 
 admissible. Woodruff, J., for the majority: "If the declarations made 
 under consciousness of suspicion are for that reason unreliable, they must 
 be unreliable whenever and wherever made . . . and equally when the 
 suspected party encounters that suspicion while fully at large among 
 third parties, as when called as a witness to state if he sees fit what he 
 knows of the cause of the death. And if consciousness of suspicion ren- 
 ders proof of his declarations unreliable, so also should it render proof 
 of his acts unreliable, and they should be equally excluded. And yet it 
 has not, I think, been doubted that proof of the acts of the party under 
 the very pressure of suspicion is competent. . . . [Flight, concealment, 
 etc.] may be proved as some indication of conscious guilt, and yet it is 
 consistent with innocence, and may be the mere result of fear, and the 
 pressure of circumstances may lead the innocent man to resort to this as 
 a measure of safety. This is quite as true as that suspicion will lead a 
 man to false statements for the same purpose. There must be some 
 limit to the rule excluding declarations, short of the test that they be 
 made when he is under no consciousness that he is under suspicion ; else 
 the whole conduct of the party, from the moment he is apprised that he 
 is suspected, must be declared to be too unreliable to be made the subject 
 of any inference whatever."^^ 
 
 SUB-TITLE III. 
 
 TESTIMONIAL REHABILITATION. 
 
 (Supporting the Credit of an Impeached Witness.) 
 
 PEOPLE V. RECTOR (1838). 
 
 19 Wend. 569, 600, 611. 
 
 Murder in a bawdy-house. One Matthew Gillespie, who was in ad- 
 joining house and saw the affray, testified on behalf of the accused. 
 On his cross-examination he testified that he had a wife and chil- 
 li* dren in the Hfth ward of the city, but that for the last two years he 
 
 «S — Compare the authorities cited in W., § 852. 
 
156 TESTIMONIAL REHABILITATION. No. 156. 
 
 had lived in adulterous intercourse with a woman who was with him on 
 the night in question, and that during all that time he had slept and ate 
 in the house wherein he then was, which was in the second ward of the 
 city; that he was in the habit of frequenting porter-houses at unsea- 
 sonable hours, and that during the last two years he had been in nO' 
 business, and had lived upon a fund of from three to five hundred dol- 
 lars which he had before accumulated, and if he had paid his debts he 
 would have had but little if any money. . . . The counsel for the prose- 
 cution, after proving by two witnesses that Gillespie had, previous to 
 giving his testimony, disavowed all knowledge of the transaction, and 
 contradicting his testimoney in other respects, called one Britton B. Tall- 
 man as a witness, and inquired of him as to the general character of 
 Gillespie for truth and veracity; to which he answered that he knew 
 nothing against it, never having heard his character for truth called 
 in question. The counsel for the prisoner then called a witness, and 
 avowed their object to adduce testimony to maintain the character of 
 Gillespie, and offered to prove by the witness and by several others then 
 present, that his general character for truth stood perfectly fair and 
 that they would give as full credit to his testimony as to that of any 
 other individual-. The Court excluded the testimony offered. 
 
 Bronson, J. : "There are several ways of impeaching the credit of a 
 witness. The party against whom the witness is called may disprove 
 the facts stated by him, or may examine other witnesses as to his gen- 
 eral character for truth. In answer to evidence against character, the 
 other party may cross-examine the witnesses as to their means of knowl- 
 edge, may attack their general character, or by fresh evidence support 
 the character of his own witness. The credit of a witness may be shaken, 
 and perhaps entirely destroyed by his own cross-examination, or by dis- 
 proving the fact to which he has disposed. But in neither of these 
 cases can the witness be supported by proving his general good character 
 as a man of truth. With only one or two exceptions at most, and those 
 resting on special considerations not applicable to this case, such evi- 
 dence is only admissible in answer to evidence of general character, 
 first given by the other party. 
 
 "Why should such evidence be received, when the witness is on the 
 stand to give any explanation of his conduct which the truth of the case 
 will permit? G. was not obliged to proclaim his own infamy. . . . But 
 aside from this consideration, if there was anything to extenuate his 
 conduct in abandoning his family and living in adultery, he was at 
 liberty to state it. He stood there to make a picture of himself, and it 
 is not to be presumed that he would draw it in darker colors than the 
 truth of the case absolutely required. Neither the party who produces 
 a witness nor the witness himself has any right to complain that com- 
 purgators are not allowed, when there has been no impeachment beyond 
 the facts disclosed by the witness himself." 
 
 Nelson, C. J., opposing, (after pointing out that good character, 
 
No. 157. GOOD CHARACTER^ ETC, 157 
 
 though an essential element of testimony, is assumed, and must first be 
 attacked by the opponent) : "Now what is the ground and reason for 
 allowing a party to introduce general evidence in reply to fortify and 
 support a witness who has been impeached ? It is surely not because the 
 impeachment has been effected by the testimony of witnesses, or by gen- 
 eral evidence as to character, or in a particular way, — all this of itself 
 can be of no importance ; but it is because the impeachment, the effect of 
 the proof, in whatever way introduced, tends directly to overcome the pre- 
 sumption of good character upon which the party had a right in the first 
 instance to rely; because a material part of his proof is struck at by 
 shaking confidence in the integrity and truth of the witness upon whom 
 it depends. ... If that [impeachment] can be removed, the presumption 
 revives, and the facts are again sustained upon the good character of the 
 witness.^ Regarding, then, the principle upon which testimony in reply 
 to the impeachment of a witness is admitted, and the grounds and reasons 
 upon which it rests, the Court should rather look to the effect of the 
 impeachment than to the mode and manner in which it is brought about. 
 It can be of little concern to a party whether the moral character of his 
 witness is destroyed by the testimony of others called to speak to it, 
 or by a cross-examination ; the effect upon him, to the extent of the im- 
 peachment, is exactly the same; he loses the benefit of the evidence in 
 both cases, and for the same cause, — the discredit of the witness. . . . 
 But it is urged that, as the witness is upon the stand, he may be ex- 
 amined himself in explanation of the impeaching facts. The obvious 
 answer to this is that the character of the witness for truth in the 
 given case is proposed to be sustained by the evidence in reply notwith- 
 standing the existence of the facts called out on the cross-examina- 
 tion. The case supposes explanation impossible, but that still his char- 
 acter for truth may be upheld by his neighbors and acquaintances."''* 
 
 GERTZ V. FITCHBURG R. CO. (1884). 
 
 1^7 Mass. 77. 
 Tort for personal injuries. 
 
 Holmes, J. : "In this case, the plaintiff having testified as a witness, 
 the defendant put in evidence the record of his conviction in 1876, in the 
 United States District Court, of the crime of falsely personating 
 a United States revenue officer. The plaintiff then offered evi- 
 dence of his character and present reputation for veracity, which was 
 
 26 — Dodd V. Norris, 3 Comp. 519 she came to be re-examined;" upon this 
 
 (1814); seduction; the daughter, on cross- ruling the following note by the reporters 
 
 examination, having admitted indelicate is made in i C. & P. 100 iBate v. Hill), 
 
 conduct with the defendant, her good where Park, J., had made the opposite 
 
 character was not admitted in her support; ruling: "The course allowed by Mr. Justice 
 
 Ellenborough, L. C. J.: "The questions Park in the present case is much more 
 
 put to herself on cross-examination there conducive to the attainment of justice, 
 
 was an ample opportunity of explaining, . . . Lord Ellenborough says that it 
 
 as far as the truth would permit, when is to be set right in re-examination. This 
 
158 TESTIMONIAL REHABILITATION. No. 157. 
 
 excluded, subject to his exception. We think that the evidence of his 
 reputation for truth should have been admitted, and that the exception 
 must be sustained. There is a clear distinction between this case and those 
 in which such evidence has been held inadmissible, for instance, to rebut 
 evidence of contradictory statement; or where the witness is directly 
 contradictory as to the principal fact by other witnesses. In such cases 
 it is true that the result sought to be reached is the same as in the 
 present, — to induce the jury to disbelieve the witness. But the mode 
 of reaching the result is different. For, while contradiction or proof of 
 contradictory statements may very well have the incidental effect of 
 impeaching the character for truth of the contradicted witness in the 
 minds of the jury, the proof is not direct to the point. The purpose and 
 only direct effect of the (impeaching) evidence are to show that the 
 witness is not to be believed in this instance. But the reason why he 
 is not to be believed is left untouched. That may be found in forget- 
 fulness on the part of the witness, or in his having been deceived, or in- 
 any other possible cause. The disbelief sought to be produced is per- 
 fectly consistent with an admission of his general character for truth, 
 as well as for the other virtues; and until the character of a witness is 
 assailed, it cannot be fortified by evidence. On the other hand, when 
 it is proved that a witness has been convicted of a crime, the only 
 ground for disbelieving him which such proof affords is the general 
 readiness to do evil which the conviction may be supposed to show. It 
 is from that general disposition alone that the jury is asked to infer a 
 readiness to lie in the particular case, and thence that he has lied in fact. 
 The evidence has no tendency to prove that he was mistaken, but only 
 that he has perjured himself, and it reaches that conclusion solely 
 through the general proposition that he is of bad character and unworthy 
 of credit."" 
 
 STEWART v PEOPLE (1871). 
 
 23 Mich. 63, 74. 
 
 Burglary; one Meyers had testified that the defendant had told him 
 where the stolen goods were concealed, and a letter of Meyers was offered 
 
 to be proved in corroboration of his testimony. 
 1"' CoOLEY, J: "The writer of the letter, it appears, was the prin- 
 cipal witness against the prisoner, and had testified to a conversation 
 had with him in Chicago, in which the prisoner made statements indicat- 
 
 looks very well in theory. Those used to allow a defendant to blast the character 
 
 to courts of justice well know that if the of a person he has seduced by his insinua- 
 
 character of a party seduced is attacked tions and then not to allow her to clear 
 
 in her cross-examination, though the wit- her character by the best means in her 
 
 ness may deny the things insinuated, a power." 
 
 jury often believe that though denied there Compare the authorities cited in W., § 
 
 IS some foundation for the insinuation, if 1106. 
 
 witnesses are not called to convince them 27— Compare the authorities cited in W., 
 
 of the contrary. It is a little too much § 1109. 
 
No. 158. SIMILAR CONSISTENT STATEMENTS, ETC. 159 
 
 ing his participation in this offense. On his cross-examination he was 
 asked whether he did not have a conversation with Edward O'Connor, 
 Robert McKinney and Michael Kilduff, one morning during the exam- 
 ination of the prisoner before the justice, in which he told said O'Connor, 
 McKinney and Kilduff that the prisoner was not the man with whom he 
 had the conversation at Chicago; and he replied in the negative. He 
 made, however, the following statement: McKinney, Kilduff, and one 
 Hamilton were his bail on a criminal charge pending against him at the 
 time Stewart was arrested on his complaint, on the charge now being 
 tried. O'Connor, Kilduff and McKinney came to his house and told 
 him if he gave evidence against Stewart they would throw up his bail. 
 He did give such evidence and was surrendered by his bail as they had 
 threatened. These three persons were then called by the defense and tes- 
 tified that the witness did say to them at the time inquired about that 
 the prisoner was not the man with whom he had the conversation in 
 Chicago. In reply to this testimony, the prosecution claimed the right 
 to put in evidence the letter in question, which was written by the wit- 
 ness in Chicago to his brother in Bay City, after the time of the alleged 
 conversation with the prisoner in Chicago, and which spoke of the pris- 
 oner being there, and said, "If you want him send word." The prose- 
 cution also offered to show by the jailer that before the prisoner was 
 arrested, and before there was any talk of arresting him, the witness 
 had made the same statement in regard to the conversation at Chicago 
 which he has sworn to in court. The circuit judge admitted his evi- 
 dence, and the defense excepted. The question upon this branch of the 
 case appears to be this: Whether after an attempt to impeach a wit-l 
 ness by showing that he has made out of court statements inconsistent! 
 with those sworn to, his evidence can be supported by the testimony oft 
 witnesses who show that on other occasions his account of the transac-j^ 
 tion has corresponded with that given in court. 
 
 "This question appears to us to be one of no ordinary difficulty. If 
 it were an established fact that the witness had made the contradictory 
 statement, we should say that he supporitng evidence here offered was 
 not admissible. If a witness has given different accounts of an affair 
 on several different occasions, the fact that he has repeated one of these 
 accounts oftener than the opposite one can scarcely be said to entitle it 
 to any additional credence. A man untruthful out of court is not likely 
 to be truthful in court; and where the contradictory staements are 
 proved, a jury is generally justified, in rejecting the testimony of the wit- 
 ness altogether. But in these cases the evidence of contradictory state- 
 ments is not received until the witness has denied making them, so that 
 an issue is always made between the witness sought to be impeached and 
 the witness impeaching him. The jury, therefore, before they can deter- 
 mine how much the contradictory statements ought to shake the credit of 
 the witness, are required first to find from conflicting evidence whether 
 he made them or not. . . . Now there are many cases in which, if evi- 
 
160 TESTIMONIAL REHABILITATION. Nfi'. 158, 
 
 dence is given of statements made by a witness in conflict with those he 
 has sworn to, his previous statements should not only be received in sup- 
 port of his credit, but would tend very strongly in that direction. If, 
 for instance, the witness is himself the prosecutor, and has already made 
 sworn complaint, there could be no doubt, we suppose, that the pendency 
 of this complaint, its contents and the relation of the witness to it, 
 might be put in evidence, and that they would raise a strong probability 
 that the testimony as to conflicting accounts as having been given about 
 the same time, was either mistaken or corrupt. Suppose a person to 
 be testifying in a case in which he had spent a considerable period of 
 time and a large sum of money in pursuing an alleged criminal to con- 
 viction, and he is confronted with evidence of his own conflicting state- 
 ments; the rule would be exceedingly unjust, as well as unphilosophical, 
 which should preclude his showing, at least by his own evidence, such 
 circumstances of his connection with the case as would make the im- 
 peaching evidence appear to be at war with all the probabilities. And 
 other cases may readily be supposed in which, under the peculiar cir- 
 cumstances, the fact that the witness has always previously given a 
 consistent account of the transaction in question might well be accepted 
 by the jury as almost conclusive that he had not varied from it in the 
 single instance testified to for the purpose of impeachment. It is im- 
 possible to lay down any arbitrary rule which could be properly applied 
 to every case in which this question could arise ; but we think that there 
 are some cases in which the peculiar circumstances would render this 
 species of evidence important and forcible. The tender age of the prin- 
 cipal witness might sometimes be an important consideration ; and the 
 fact that the previous statement was put in writing — as it was in this 
 instance — at a time when it would be reasonably free from suspicion 
 might very well be a controlling circumstance. We think the circuit 
 judge ought to be allowed a reasonable discretion in such cases, and 
 that though such evidence should not generally be received, yet that his 
 discretion is receiving it ought not to be set aside except in a clear case 
 of abuse."*^ 
 
 28 — Compare the authorities cited in W., §§ 1122-1131. 
 
No. 159. REAL EVIDENCE. 161 
 
 TITLE III. 
 
 REAL EVIDENCE (AUTOPTIC PROFERENCE.) 
 
 GENTRY V. McMINNIS (1835.) 
 
 3 Dana 382, 386. 
 
 Robertson, C. J.: "The plaintiff in error asks the reversal of a judg- 
 ment for costs and nominal damages, obtained against him by the de- 
 fendant in error on an issue involving her liberty or slavery, in 
 ^^* an action of trespass, which, for trying her claim to freedom, 
 she had instituted in consequence of his claiming her to be his slave, 
 and exercising over her the dominion of a master. The Circuit Judge 
 refused, on the motion of the plaintiff in error, to instruct the jury 
 that the color of the defendant, also, was prima facie evidence of her 
 being a slave; but told them, that if, upon their own view, they should 
 be of the opinion, that she was a white woman, they should find for 
 her. The counsel denies that personal inspection by the jurors on the 
 trial is proper or allowable evidence. ... To a rational man of perfect 
 organization the best and highest proof of which any fact is suscepti- 
 ble is the evidence of his own senses. This is the ultimate test of 
 truth, and is therefore the first principle in the philosophy of evidence. 
 . . . Hence autopsy, or the evidence of one's own senses, furnishes the 
 strongest probability and indeed the only perfect and indubitable cer- 
 tainty of the existence of any sensible fact. . . . [Jurors,] when they 
 decide altogether on the testimony of others, do so only because the 
 fact to be tried is unsusceptible of any better proof. Their own per- 
 sonal knowledge of the fact would always be much more satisfactory 
 to themselves, and afford much more certainty of truth and justice. 
 . . . Hence the policy of having a jury of the vicinage; and hence, too, 
 jurors have not only been permitted but required to decide on autopti- 
 cal examination wherever it was practical and convenient. A white 
 person of unmixed blood cannot be a slave, here, where there can be 
 no conventional slavery. But a person apparently white may, never- 
 theless, have some African taint, and may, consequently, have de- 
 scended from a mother who was a slave; the apparent color is but 
 prima facie evidence; and consequently, when a jury, on their view, 
 decide that the color is white, testimony will be admissible to prove 
 that, notwithstanding the visible complexion, there is African blood in 
 the veins sufficient to doom to slavery. If on inspection, the jury had, 
 without considering other evidence, believed that the defendant was a 
 
162 REAL EVIDENCE. No. 159. 
 
 white woman, they would have been bound by law to have found that 
 she was free, unless the legal deduction from color had been defeated 
 or rebutted by some evidence showing, or legitimately tending to show, 
 that, notwithstanding her apparently white skin, she had some African 
 taint, and was, de jure, a slave."^ 
 
 INGS' TRIAL (1820.) 
 
 33 How. St. Tr. 1051, 1088. 
 
 The "Cato-street Conspiracy;" indictment for high treason. The 
 defendant claimed that he was ignorantly drawn into the movement, 
 and did not know of the specific murderous designs of the lead- 
 ^^^ ers. A constable produced the conspirators' weapons. "Are there 
 now placed upon the table the things which were taken in Cato- 
 street?" "Yes." — "You gave us an enumeration yesterday of thirty- 
 ball-cartridges, firelock and bayonet, one powder-flask, three pistols, 
 and one sword, with six bayonet spikes, and cloth belt, one blunder- 
 buss, pistol, fourteen bayonet spikes, and three pointed files, one bay- 
 onet, one bayonet spike, and one sword scabbord, one carbine and 
 bayonet, two swords, one bullet, ten hand-grenades; [two fire-balls, 
 nine hundred and sixty-five ball cartridges, eleven bags of gimpowder 
 of a pound each ;] I do not see them ?" "Here they are," producing a 
 bag. — "We must have them on the table." They were emptied out, 
 and the jury inspected the various articles, the hand-grenades being 
 broken open, and other weapons displayed. No objection was made to 
 this proceeding, which was taken as a matter of course; but the coun- 
 sel for the defence, Mr. Adolphus, thus referred to it in his address: 
 "You have had that which produces always a sort of mechanical 
 effect. I do not mean to pay an ill compliment to your understand- 
 ings; but you have had a display of visible objects, pikes and swords, 
 guns and blunderbusses, have been put before you, to the end that 
 this feeling may be excited in every man's mind, 'How should I like 
 to have this sort of thing put to my breast! How should I feel if 
 this applied to my chimney! And that to my stair-case!', and so on; 
 that is, that the individual feeling of each man may make him separate 
 
 I — Lord Eldon, in Twiss' Life of Eldon, in rags, came forward and said, if I would 
 
 I, 354: "When I was Chief Justice of the allow her to get into the witness-box, she 
 
 Common Pleas (I did like that courtl). thought she could say something that 
 
 a cause was brought before me for the would decide the cause. Well, she was 
 
 recovery of a dog, which the defendant sworn just as she was, all in rags, and 
 
 had stolen in that ground [lying in the leant forward towards the animal, and 
 
 fields beyond his house] and detained said, 'Come, Billy, come and kiss me!' The 
 
 from the plaintiff, its owner. We had a savage-looking dog instantly raised itself 
 
 great deal of evidence, and the dog was on its hind legs, put its immense paws 
 
 brought into court and placed on the around her neck, and saluted her. She 
 
 table between the judge and witnesses. had brought it up from a puppy. Those 
 
 It was a very fine dog, very large, and words, 'Come, Billy, come and kiss me,' 
 
 very fierce, so much so that I ordered a decided the cause." 
 
 muzzle to be put on it. Well, we could Compare the authorities cited in W., I 
 
 come to no decision; when a woman, all 1154. 
 
No. 161. REAL EVIDENCE, 163 
 
 himself from society, — may make him, through the medium of his own 
 personal hatred of violence or apprehension of danger, think that this 
 contemptible exhibition of imperfect armoury could operate on a town 
 filled by a million of loyal inhabitants or could give the means of 
 overwhelming the empire. When touched by reason, they shrink to 
 nothing, and will never produce a verdict contrary to the evidence of 
 facts. It is like displaying the bloody robe of a man who has been 
 stabbed or murdered; it is like the trick practised at every sessions, 
 where we see a witness pull out some cloak or handkerchief dipped 
 in blood of the person, to produce conviction through the medium of 
 commiseration. They do not trust to description, but rely upon dis- 
 play. That is the effect of the production of these arms."^ 
 
 Mansfield, L. C. J., Rules for Views, i Burr. 252, (1757) : "Before 
 the 4 and 5 Anne, c. 16, § 8,' there could be no view till after the cause 
 had been brought on to trial. If the Court saw the question in- 
 volved in obscurity which might be cleared up by a view, the cause 
 was put off, that the jurors might have a view before it came on to be 
 tried again. The rule for a view proceeded upon the previous opinion of 
 the Court or judge, at the trial, 'that the nature of the question made 
 a view not only proper but necessary'; for the judges at the assizes 
 were not to give way to the delay and expense of a view unless they 
 saw that a case could not be understood without one. However, it 
 often happened in fact that upon the desire of either party causes were 
 put off for want of a view upon specious allegations from the nature 
 of the question that a view was proper, — without going into the proof 
 
 2 — Mr. David Paul Brown, in "The they went further, and produced some of 
 
 Forum," II, 448 (1856); the famous Phil- the white undergarments — corsets, etc., all 
 
 adelphia advocate is recounting the story besmeared with human blood. Upon this 
 
 of i cause celebre of 1834, — the homicide, exhibition there was not a dry eye in the 
 
 by a disappointed lover, of the woman he court-house. And the current of opinion 
 
 loved: "During the course of the trial continued to run against the defendant 
 
 there was an occurrence which is entitled from that moment until the close of the 
 
 to notice. When I first called upon the case, and finally bore him into eternity." 
 
 prisoner, after he had furnished me with Compare the authorities cited in W., §§ 
 
 some of the prominent details, I asked 1157, 1158. For the right to compel dis- 
 
 him how the deceased was dressed at the covery from an accused, see post. No. 479. 
 
 time of the blow. He said, 'In black.' I 3— By this statute, "in any action" at 
 
 observed, 'That was better than if the Westminster, where it shall appear to the 
 
 dress had been white.' Upon which the Court that it will be "proper and neces- 
 
 prisoner turned hastily round, and asked sary" that the jurors who are to try the 
 
 what difference that could make. The re- issues should have the view of the lands 
 
 ply was, 'No difference, in regard to your or place m question, "in order to their 
 
 offence; but a considerable difference in better i;nderstanding the evidence" to be 
 
 respect to the effect produced upon the given at the trial, the Court may order 
 
 jury by the exhibition of the garments, special writs of distringas or habeas cor- 
 
 which, no doubt, will be resorted to.' And pora, commanding the selection of six out 
 
 so upon the trial it turned out. The black of the first twelve of the jurors therein 
 
 dress was presented to the jury,— the named, or a greater number, to whom the 
 
 eleven punctures through the bosom pointed matters controverted shall be shown by 
 
 out; but no stain was observable, no excite- two persons appointed by the Court, 
 ment was produced. At last, however, 
 
164 
 
 REAL EVIDENCE. 
 
 No. 161. 
 
 so as to be able to judge whether the evidence might not be under- 
 stood without it. This circuity occasioned delay and expense; to pre- 
 vent which the 4 and 5 Anne, c. 16, 8, impowered the Courts at 
 Westminster to grant a view in the first instance previous to the trial, 
 . . . The Courts are not bound to grant a view of course; the Act only 
 says 'they may order it, where it shall appear to them that it will be 
 proper and necessary,' "^ 
 
 4 — Craig, J., in Springer v. Chicago, 13s 
 111. 553, 561. 26 N. E. 514 (189O: "If 
 the parties had the right upon the trial 
 to prove by oral testimony the condition 
 of the property at the time of the trial, 
 . . . upon what principle can it be said 
 the Court shall not allow the jury in' per- 
 son to view the premises and thus ascer- 
 tain the condition thereof for themselves? 
 , . . If a plat or a photograph of the 
 premises would be proper evidence, why 
 not allow the jury to look at the property 
 itself, instead of a picture of the same? 
 There may be cases where a trial Court 
 should not grant a view of premises where 
 
 it would be expensive, or cause delay, or 
 where a view would serve no useful pur- 
 pose; but this affords no reason for a rul- 
 ing that the power to order a view does 
 not exist or should not be exercised in 
 any case. , . . If at common law, in- 
 dependent of any English statute, the 
 Court had the power to order a view by 
 jury (as we think it plain the Court had 
 such power), as we have adopted the com- 
 mon law in this State, our Courts have the 
 same power." 
 
 Compare the authorities cited in W., §§ 
 1 1 62-1 1 66. 
 
No. 162. RULES OF AUXILIARY FROBATIVE POLICY. 165 
 
 PART II. 
 
 RULES OF AUXILIARY PROBATIVE 
 POLICY. 
 
 ^Nature of the Rules: "Assume that these principles of Rele- 
 vancy have been satisfied, and that certain facts, so far as concerns 
 their logical bearing and probative value, have passed the gaunt- 
 ^^^ let and are evidentially worthy to be considered. There still 
 may remain for them another gauntlet to pass. They may be amenable 
 to certain other rules, applicable to specific classes of evidential mate- 
 rial, and designed to strengthen here and there the evidential fabric 
 and to secure it against dangers and weaknesses pointed out by ex- 
 perience. These auxiliary rules have nothing to do with Relevancy 
 as such, i. e. regarded as the minimum requirement for admissibility. 
 They assume Relevancy, and then under special circumstances apply an 
 extra safeguard designed to meet special dangers. They may be said 
 to be artificial as distinguished from natural rules; that is, they do not, 
 as do the rules of Relevancy, simply analyze the natural process of 
 inference and belief; but they contrive a specific safeguard to be ap- 
 plied where experience has shown it desirable. 
 
 "These rules of Auxiliary Policy, then, form a set of rules over and 
 above and independent of the rules depending on the principles of 
 Relevancy. They are distinguished from the rules of Relevancy (Part 
 I) in resting not upon an analysis of the process of inference, but upon 
 expedients designed to avoid special dangers irrespective of the nature 
 of the inference and affecting in common various kinds of evidence 
 resting upon various inferences. They are distinguished from the 
 rules of Extrinsic Policy (Part III) in having for their purpose the 
 strengthening of the mass of evidence and avoidance of probative 
 dangers, and not the avoidance of collateral disadvantages unconnected 
 with the object of securing good evidence. They include the most 
 .characteristic features of the Anglo-American law of evidence; and they 
 are, on the whole, and apart from minor abuses, justified by experi- 
 ence as a valuable part of the system. 
 
 "These rules seem divisible into five classes, according to their mode 
 of operation: I, Quantitative (or Synthetic); II, Preferential; III, 
 Analytic; IV, Preventive (or Prophylactic), and V,. Simplificative. 
 
 "There is no one term traditionally given to this group of auxiliary 
 
 1 — Quoted from W., 5 1171. 
 
166 RULES OF AUXILIARY PROBATIVE POLICY. No. 162. 
 
 rules, here termed rules of Auxiliary Probative Policy; but a phrase 
 has long been used to cover some of them, — the 'best evidence' prin- 
 ciple." 
 
 Professor James Bradley Thayer, Preliminary Treatise on Evi- 
 dence (1898), pp. 489 ff. : "The phrase ['best evidence'] continued to 
 hold a great place throughout the eighteenth century. Chief 
 Baron Gilbert introduced the expression into his book on Evi- 
 dence, and recognized the rule which requires of a party the best 
 evidence that he can produce, as the chief rule of the whole subject. 
 ... It is said in Gilbert's book that 'the first, therefore, and most sig- 
 nal rule in relation to evidence is this, that a man must have the utmost 
 evidence the nature of the fact is capable of, . . . The true meaning of 
 the rule of law that requires the greatest evidence that the nature 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 
 parties' own possession and power. Why did he not produce the better 
 evidence? he asks; and he illustrates by what was always the stock 
 example, the case of offering 'a copy of a deed or will where he ought 
 to produce the original.' . . . The courts also were using the same and 
 even more emphatic language. In 1740, Lord Hardwicke declared that 
 'the rule of evidence is that the best evidence that the circumstances 
 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.' And in 1792 Lord Loughborough 
 said 'that all common-law courts ought to proceed upon the general 
 rule, namely, the best evidence that the nature of the case will admit, 
 I perfectly agree.' But the great, conspicuous instance in which this 
 doctrine was asserted and applied was in the famous and historical 
 case of Omychund v. Barker, in 1744, growing out of the extension of 
 British commerce in India, where the question was on receiving in an 
 English court the testimony of a native heathen Hindoo, taken in 
 India, on an oath conformed to the usage of his religion. In this 
 case, Willes, J., resorted to this rule, and Lord Hardwicke, sitting as 
 Chancellor, with great emphasis said: 'The judge 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 allow.' . . . 
 
 "An old principle which has served a useful purpose for the century 
 while rules of evidence had been forming and were being applied, to an 
 extent never before known, while the practice of granting new trials 
 for the jury's disregard of evidence had been developing, and judicial 
 control over evidence had been greatly extended,— this old principle, 
 this convenient, rough test, had survived its usefulness. A crop of 
 specific rules and exceptions to rules had been sprouting, and harden- 
 ing into an independent growth. It had become perfectly true that 
 in many cases it made no difference whatever whether a man offered 
 
No. 164. QUANTITATIVE RULES. 167 
 
 the best evidence that he could or not, — the best evidence that the 
 nature of the case admitted, the best ex natura ret, as some judges 
 said, or the best, \ebus sic stantibus, as others said; none the less it 
 was, in many cases, rejected. ... As regards the main rule of the 
 Best Evidence, in its general application, the text-books which followed 
 Gilbert, beginning with Peake in 1801, and continuing with the leading 
 treatises of Phillips in 1814, Starkie in 1824, Greenleaf in 1842, Tay- 
 lor in 1848, and Best in 1849 all repeat it. But it is accompanied now 
 with so many explanations and qualifications as to indicate the need 
 of some simpler and truer statement, which should exclude any men- 
 tion of this as a working rule of our system. Indeed it would probably 
 have dropped naturally out of use long ago, if it had not come to be 
 a convenient, short description of the rule as to proving the contents 
 of a writing. Regarded as a general rule, the trouble with it is that it 
 is not true to the facts and docs not hold out in its application; 
 and in so far as it does apply, it is unnecessary and uninstructive. 
 It is roughly descriptive of two or three rules which have their own 
 reasons and their own name and place, and are well enough known 
 without it.'' 
 
 TITLE I. 
 
 QUANTITATIVE (OR SYNTHETIC) RULES. 
 
 ^General Scope of Quantitative (or Synthetic) Rules. "Some 
 of the auxiliary rules of evidence operate by requiring, in specific sit- 
 uations, that a certain quantity of evidential material be pro- 
 vided. This or that piece of evidence, admissible in itself so far 
 as all the foregoing rules are concerned, is declared to be insufficient 
 unless joined sooner or later with other pieces of evidence. It is con- 
 ditionally admissible ; but its admissibility will prove of no avail, because, 
 before the jury is allowed to retire and consider it, all the evidence 
 on that point will be rejected unless the remaining evidential elements 
 have been supplied. Regarded as requiring more than a single piece 
 of admissible evidence, these rules may be termed Quantitative; re- 
 garded as requiring various pieces of evidence to be associated in 
 presentation, in order that any one of them may ultimately be of 
 service, these rules may be termed Synthetic. 
 
 "The various Quantitative or Synthetic rules may best be classified 
 for practical purposes under four heads; the first and second con- 
 cern testimonial evidence only; the third concerns all kinds of evi- 
 dence whatsoever, as well as all material forming a part of the issue 
 itself; the fourth concerns circumstantial evidence only. 
 
 1 — Quoted from W., § 2030. 
 
168 QUANTITATIVE RULES. No. 164. 
 
 "First, there are rules as to the Number of Witnesses required; the 
 question throughout being whether a single witness is in certain sit- 
 uations sufficient, and if not, what other evidence will suffice there- 
 with. Secondly, there are rules as to the Kind of Witness required; 
 the question here being whether for certain issues a certain kind of 
 witness must always be present among the general mass of evidence; 
 practically, the only kind of necessary witness recognized in our law 
 is the eye-witness. Thirdly, there is a rule of Verbal Completeness. 
 i. e. that the whole of a document or of an oral utterance must be 
 offered, in order that any part of it may be received. Fourthly, in the 
 Authentication of documents (i. e. proving their genuineness, or due 
 execution), there are rules which declare certain kinds of circum- 
 '.stantial evidence to be insufficient or necessary. 
 
 SUB-TITLE I. 
 NUMBER OF WITNESSES REQUIRED, 
 
 Roman and Canon Law. Digesta, xxii, 5, 12, Ulpian: "Ubi Hu- 
 merus testium non adiicitur, etiam duo sufficiunt; pluralis enim elocutio 
 duorum numero contenta est"; Codex, iv. 20, 4, a. d. 283, "so- 
 ^®* lam testationem prolatam, nee aliis legitimis adminiculis causa 
 approbata, nullius esse momenti certum est" ; ib. p, § i, a. d. 334 ; "Sim- 
 ili modo sanximus ut unius testimonium nemo judicum In quocunque 
 causa facile patiatur adraitti. Et nunc manifeste sancimus ut unius 
 omnino testis responsio non audiatur, etiamsi prseclare curiae honore 
 prasfulgeat." 
 
 Corpus Juris Canonici, Decret. Greg., lib. ii, fit. xx, de testibus, c. 
 2^ (ante 1400) ; "licet qusedam sint causa, quse plures quam duos exi- 
 gant testes, nulla est tamen causa, quae unius tantum testimonio, quam- 
 vis legitimo, rational biliter terminetur." 
 
 Gibson, Codex Juris Ecclesiastici Anglicani (1713), p. 1054: "In 
 the spiritual court, they admit no proof but by two witnesses at least; 
 in the temporal court, one witness, in many cases, is judged sufficient."^ 
 
 Algernon Sidney's Apologia, p Hoiv. St. Tr. Q16, p27, (1683). Sid- 
 ■ney, arguing against the rule then obtaining that the two treason wit- 
 nesses might testify to different overt acts : "I must ever insist 
 -*■"" upon the law of God given by the hand of Moses, confirmed by 
 
 2 — "The canonists erroneously supposed witness did not suflKce; and the canon law 
 that the [orthodox] Roman jurists under- accepted the principle with the more re- 
 stood the maxim testis unus testis nullus spect because it was sanctioned in Deuter- 
 in the sense that a single witness did not onomy" (Glasson, Histoire du droit et des 
 ^suffice for proof. It was Constantine who institutions de la France, VI, 543; 1S95). 
 £rst laid down the arbitrary rule that one 
 
No. 168. REQUIRED NUMBER OF WITNESSES. 169 
 
 Christ and his Apostles, whereby two witnesses are necessarily required 
 to every word and every matter. . . . The reason of this is not because 
 two or more evil men may not be found, — as appears by the story of 
 Susanna; but because it is hard for two or more so to agree upon all 
 circumstances relating unto a lye as not to thwart one another. And 
 whosoever admits of two testifying several things done or said several 
 times or places conducing — as is said of late — unto the same ends, 
 destroys the reason of that law, takes away all the defence that the 
 most innocent men can have for their lives, and opens a wide gate 
 for perjury by taking away all possibility of discovering it."' 
 
 Sir James Stephen, History of the Criminal Law, I, 400 (1883) : 
 "The opinion of the time [before 1700] seems to have been that, if a 
 man came and swore to anything whatever, he ought to be be- 
 ■^ ' lieved, unless he was directly contradicted. . . . The juries seem 
 to have thought (as they very often still think) that a direct unquali- 
 fied oath by an eye or ear-witness has, so to speak, a mechanical value, 
 and must be believed unless it is distinctly contradicted. ... If the 
 Court regarded a man as a 'good' (i. e. a competent) 'witness,' the jury 
 seem to have believed him as a matter of course, unless he was con- 
 tradicted; though there are a few exceptions. . . . The most remark- 
 able illustration of these remarks is to be found in the trial of the 
 five Jesuits. . . . [Chief Justice Scroggs says] : 'Mr. Fenwick says to 
 all this, "Here is nothing against us but talking and swearing." But, 
 for that, he hath been told (if it were possible for him to learn) that 
 all testimony is but talking and swearing; for all things, all men's 
 lives and fortunes, are determined by an oath, and an oath is by talk- 
 ing, by kissing the book, and calling God to witness to the truth of 
 what is said.' . . . Scroggs was right as to what it [the practice of 
 juries] actually was, and to a certain extent still is. It is true that 
 juries do attach extraordinary importance to the dead weight of an 
 oath." 
 
 W. M. Best, Evidence, %\S97-(>oi (1849): "Those who take the 
 civil-law view contend that it is dangerous to allow a tribunal to act on 
 the testimony of a single witness, since by this means any person, 
 even the most vile, can swear away the liberty, honor, or life of 
 any one else; they insist on the undoubted truth, that the chance of dis- 
 crepancy between the statements of two false witnesses, when ex- 
 
 3 — Professor J. B. Thayer, Preliminary ant's proof 'fuit greindr than the demand- 
 
 Treatise on Evidence, 23, (1898) : "We read ant's, it was awarded,' etc. If we take 
 
 [in an English case of c«» in vita, in 1308], Fitzherbert's account to be accurate, it 
 
 that they were at issue issint cesti qui might appear that the twelve men on each 
 
 mieulx prove mieulx av, and the tenant side cancelled each other and left a total 
 
 proves by sixteen men, etc., and the de- of four to the credit of the tenant, a re- 
 
 mandant by twelve; and because the ten- suit which left his proof the better." 
 
170 QUANTITATIVE RULES. No. 168. 
 
 amined apart, is a powerful protection to the party attacked. . . . Now 
 we are by no means prepared to deny that under a system where the 
 decision of all questions of law and fact is intrusted to a single judge, 
 or in a country where the standard of truth among the population is 
 very low, such a rule may be a valuable security against the abuse 
 of power and the risk of perjury; but it is far otherwise where a high 
 standard of truth prevails, and facts are tried by a jury directed and 
 assisted by a judge. Add to this, that the anomaly of acting on the 
 testimony of one person is more apparent than real; for the decision 
 does not proceed solely on the story told by the witness, but on the 
 moral conviction of its truth,, based on its intrinsic probability and his 
 manner of giving his evidence. And there are few cases in which the 
 decision rests even on these circumstances alone; they are usually 
 corroborated by the presumption arising from the absence of counter- 
 proof or explanation, and in criminal cases by the demeanour of the 
 accused while on his trial. . . . Still, however, on the trial of cer- 
 tain accusations, which are peculiarly liable to be made the instru- 
 ments of persecution, oppression, or fraud, and in certain cases of 
 preappointed evidence (where parties about to do a deliberate act may 
 fairly be required to provide themselves with any reasonable number 
 of witnesses, in order to give facility to proof of that act), the law 
 may with advantage relax its general rule, and exact a higher degree 
 of assurance than could be derived from the testimony of a single wit- 
 ness. Cases, too, must now and then, though extremely seldom, occur, 
 in which the grossest injustice is done by giving credence to the story 
 of a single witness. . . . On the other hand, however, as the requir- 
 ing a plurality of witnesses clearly imposes an obstacle to the adminis- 
 tration of justice, especially where the act to be proved is of a casual 
 nature, — above all, where, being in violation of law, as much clandes- 
 tinity as possible would be observed, — it ought not to be required with- 
 out strong and just reason. Its evils are these: i. It offers a pre- 
 mium to crime and dishonesty; by telling the murderer and felon 
 that they may exercise their trade, and the knave that he may practise 
 his fraud, with impunity, in the presence of any one person; and the 
 unprincipled man that he may safely violate any engagement, however 
 solemn, contracted under similar circumstances. 2. Artificial rules 
 of this kind hold out a temptation to the subordination of perjury, in 
 order to obtain the means of complying with them. 3. They pro- 
 duce a mischievous effect on the tribunal, by their natural tendency 
 to react on the human mind; and they thus create a system of me- 
 chanical decision, dependent on the number of proofs, and regardless 
 of their weight. ... On the whole, we trust our readers will agree 
 with us in thinking that any attempt to lay down a universal rule 
 on this subject which shall be applicable to all countries, ages and 
 causes, is ridiculous ; and that, although so far as this country is con- 
 cerned, the general rule of the common law — ^that judicial decisions 
 should proceed on the intelligence and credit, and not on the number 
 
JSTO. 169. REQUIRED NUMBER OF WITNESSES. 171 
 
 of the witnesses examined or documents produced in evidence — is a 
 just one, there are cases where, from motives of public policy, it has 
 been wisely ordained otherwise.'' 
 
 CALLANAN v. SHAW (1868). 
 
 24. la. 441, 444. 
 
 Beck, J., disapproving an instruction "that no important fact can be 
 proved without at least the testimony of one credible and unimpeached 
 witness" : "It is impossible, from the nature of things, for the 
 ^" law to provide rules which shall determine the quantity or 
 amount of evidence necessary to establish a fact in judicial proceed- 
 ings. There can be devised no standard — no unit of measurement, 
 whereby we may determine just what measure of evidence shall be re- 
 quired to prove a fact in issue. To say that one credible witness is 
 necessary, is a very unsatisfactory and indefinite rule indeed. As a 
 matter of fact, evidence can usually be brought before a jury only 
 through the medium of human testimony; there must, of necessity, be a 
 "witness, or one standing in that position, through whom the fact can be 
 brought to the mind of a court or jury. . . . There must be, then, in 
 most cases, to establish a fact, a witness, whether that fact be important 
 or unimportant. But this rule gives no measure for the quantity of evi- 
 dence, for knowledge, intelligence, qualities of memory, and all other at- 
 tributes that make up ability, together with those moral qualities which 
 constitute credibility, are most unequally united in men, so that one 
 possessing all the attributes of ability and credibility in the highest 
 degree, and so known to the tribunal before whom he testifies, would, 
 in his evidence, outweigh an indefinite number of witnesses who 
 possess the same attributes in the lowest degree. It is also true, that 
 s. witness, in order to prove a fact by his evidence, must be credible — 
 he must be such a witness as will be entitled to receive the belief, 
 the faith of others. But here again, from the very nature of the 
 case, there are indefinite degrees in this character we call credibility. 
 One may possess it in the highest degree, another in the lowest. It 
 follows, therefore, that when evidence is weighed to determine 
 whether a fact has been proven thereby, all the qualities going to 
 make up what is termed ability and credibility to a witness must 
 be fully considered in order to arrive at a truth. And who should 
 so weigh and consider these qualities? Most evidently the jury. The 
 Court cannot discharge this duty for them, because the very opinion 
 which they may form upon these questions of ability and credibility 
 in truth determines their finding. ... If the witness, from want of 
 intelligence, or from any other cause, is incompetent under the rules 
 •of law, the Court will not permit him to testify, but when the evi- 
 -dence of the witness is before the jury, all questions of credibility 
 are for them, and for them alone." 
 
172 QUANTITATIVE RULES. No. 170. 
 
 BOURDA V. JONES (1901). 
 
 no Wis. 52, 85 N. W. 671. 
 
 Action of replevin for a quantity of hotel furniture. The 
 cause was tried before a referee. Appellant, to establish his cause of 
 action, testified that all the property described in the' complaint 
 belonged to him and that the various articles were worth the 
 amounts set opposite them respectively in a list attached to the com- 
 plaint, the agregate being $822; that he fixed the value as indicated be- 
 cause it was the property cost. The referee found in favor of the 
 plaintiff, that he was entitled to recover certain specified articles, 
 not including a large part of the property claimed and much of the 
 property for which judgment was tendered. The value of the 
 articles found to belong to the appellant, at the rate testified to by 
 him, was over $300. The value found by the Court was $50. The 
 only evidence of damage was a general statement by plaintiff that 
 he was damaged $200. 
 
 Marshall, J. : "It is contended that the evidence of value on 
 the part of the plaintiff was clear, satisfactory and undisputed, and 
 that there was no evidence whatever to warrant the court in find- 
 ing the value of $50 or any less than the amount indicated by the 
 testimony of plaintiff. We are unable to find the clear and satis- 
 factory evidence spoken of. Appellant testified that the property, 
 though it had been in use in a hotel from one to five years, was 
 worth as much as when new, and his values were put upon that 
 basis. The evidence was clear, to be sure, but clearly outside the 
 realms of all reasonable probabilities. It has often been said that 
 courts and juries are not obliged to find that a fact exists, and cannot 
 properly do so, merely because there is evidence to that effect from 
 the mouth of a witness or any number of witnesses. A sworn 
 statement, which is obviously false when viewed in the light of reason 
 and common sense and facts within common knowledge, cannot be 
 received in court as true because some witness willfully or ignorantly 
 or recklessly so testifies. ... It is not infrequently supposed that a 
 sworn statement is necessarily proof, and that, if uncontradicted, 
 it establishes the fact involved. Such is by no means the law. 
 Testimony, regardless of the amount of it, which is contrary to 
 all reasonable probabilities or conceded facts — testimony which no 
 sensible man can believe — goes for nothing; while the evidence of 
 a single witness to a fact, there being nothing to throw discredit 
 thereon, cannot be disregarded. If it is the only evidence in respect 
 to the fact involved, it is ordinarily deemed sufficient to establish 
 such fact. . . . Where the value in controversy relates to an article 
 the value of which is within common knowledge, the fact may be 
 found by court or jury without direct testimony thereto, the article 
 being sufficiently described by evidence to enable one to apply to it 
 
No. 172. REQUIRED NUMBER OF WITNESSES. 173 
 
 common knowledge of value. At the same time evidence of wit- 
 nesses, though uncontradicted, placing the value of an article beyond 
 all reason, should be entirely ignored. . . . The testimony of appel- 
 lant that his property was worth as much as when new, did not 
 prove or tend to prove the true value. So the referee, without 
 any accurate description of' the property or its condition, was left 
 to guess at the value thereof. The burden of proof was on plain- 
 tiff. ... As we view it, there was practically a failure of proof 
 on the subject of value." 
 
 Statutes. England: 1552, St. 5 &■ 6 Edw. VI, c. 11, %I2: 
 No person is to be indicted or arraigned for treason, "unless the 
 same offender or offenders be thereof accused by two lawful ac- 
 cusers, which said accusers at the time of the arraignment of the 
 party so accused, if they be then living, shall be brought in person be- 
 fore the party so accused and avow and maintain what they have to 
 say against the said party . . . unless the said party arraigned shall 
 willingly without violence confess the same." i6g6, St. 7 W. Ill, C. 
 3, §^; No person shall be indicted or tried for high treason work- 
 ing corruption of blood, or misprision, "but by and upon the oaths 
 and testimony of two lawful witnesses, either both of them to the 
 same overt act, or one of them to the one and the other of them 
 to ' another ovfert act of the same treason," unless the accused "shall 
 willingly, without violence, in open court confess the same, or stand 
 mute or refuse to plead"; c. 7: the foregoing provision is not to 
 extend to counterfeiting the coin. 
 
 Constitution of the United States (178^), Art. Ill, §j.- "No 
 person shall be convicted of treason unless on the testimony of two 
 witnesses to the same overt act, or on confession in open court."^ 
 
 R. V. MUSCOT (1714). 
 
 10 Mod. igz. 
 
 Parker, C. J.: "There is this difference between a prosecution. 
 
 for perjury and a bare contest about property, that in the latter case 
 
 the matter stands indifferent, and therefore a credible and 
 
 ^'^ probable witness shall turn the scale in favor of either party. 
 
 But in the former, presumption is ever to be made in favor of 
 
 I — Madison's Journal of the Federal said on both sides. Treason may some- 
 
 Convention, Scott's ed., II, 564, s66 times be practised in such a manner as to 
 
 (1787): "It was then moved to insert, render proof extremely difficult, — as in a 
 
 after 'two witnesses' the words "to the traitorous correspondence with an enemy.* 
 
 same overt act.' Dr. Franklin 'wished On the question," the vote was 8 to 3 for 
 
 this amendment to take place. Prosecu- the amendment. 
 
 tions for treason were generally virulent. Compare the authorities cited in W., §§ 
 
 and perjury too easily made use of against 2036-2034. 
 innocence.' Mr. Wilson: 'Much may be 
 
174 QUANTITATIVE RULES, No. 172. 
 
 innocence, and the oath of the party will have a regard paid to it 
 until disproved. Therefore, to convict a man of perjury, a probable, 
 a credible witness is not enough ; but it must be a strong and clear 
 evidence, and more numerous than the evidence given for the de- 
 fendant; for else there is only oath against oath." 
 
 W. M. Best, Evidence, ^% 605-606 (1849): "The reason usually 
 assigned in our books for requiring two witnesses in perjury — viz., 
 that the evidence of the accused having been given on oath, 
 ^' when nothing beyond the testimony of a single witness is 
 produced to falsify it, there is nothing but oath against oath — is 
 by no means satisfactory. All oaths are not of equal value; for the 
 credibility of the statement of a witness depends quite as much 
 on his deportment when giving it, and the probability of his story, 
 as on the fact of it being deposed to on oath; and, as is justly 
 remarked by Sir W. D. Evans, the motives for falsehood in the 
 original testimony or deposition may be much stronger with refer- 
 ence to the event on the one side than the motives for a false accu- 
 sation of perjury on the other. . . . The foundations of this rule, 
 we apprehend, lie much deeper. The legislator dealing with the 
 offense of perjury has to determine the relative weight of con- 
 flicting duties. Measured merely by its religious or moral enormity, 
 perjury, always a grievous, would in many cases be the greatest 
 of crimes, and as such be deserving of the severest punishment which 
 the law could inflict. But when we consider the very peculiar 
 nature of this offence, and that every person who appears as a wit- 
 ness in a court of justice is liable to be accused of it by those 
 against whom his evidence tells, who are frequently the basest 
 and most unprincipled of mankind; and when we remember how 
 powerless are the best rules of municipal law with the co-operation 
 of society to enforce them, — we shall see that the obligation of 
 protecting witnesses from oppression, or annoyance, by charges, or 
 threats of charges of having borne false testimony, is far para- 
 mount to that of giving even perjury its deserts."^ 
 
 PEMBER V. MATHERS (1778). 
 
 I Bro. Ch. C. 52. 
 
 Thurlow, L. C. : "I take the rule to be that, where the defendant 
 in express terms negatives the allegations of the bill, and the evi- 
 dence is only one person affirming what has been so negatived, 
 ^'^ there the Court will neither make a decree nor send it to a trial 
 at law. . . The original rule stands on great authorities ; so does 
 the manner of liquidating it; I do not see great reason in either." 
 
 2 — Compare the authorities cited in W., §§ 2040-2043. 
 
T^. 178. REQUIRED NUMBER OF WITNESSES. 175 
 
 R. N. Gresley, Evidence in Equity, 4, (1837) : "Where a ma- 
 terial fact was directly put in issue by the answer, the Courts of 
 equity followed the maxim of the civil law, responsio unius 
 ** non omnino audiatur, and required the evidence of two wit- 
 nesses as the foundation for a decree. But of late years the rule 
 has been referred more closely to the equitable principle on which 
 it is grounded, namely, the equal right to credit which a defendant 
 may claim when his oath, 'positively, clearly, and precisely given.' 
 and consequently subjecting him to the penalties of perjury, is 
 opposed to the oath of a single witness." 
 
 ATTWOOD V. SMALL (1838). 
 
 6 CI. & F. 2^2, 2p^. 
 
 Lord Brougham: "It is said that you must have recourse to the 
 answer . . . [because of a rule that if the defendant denies on oath] 
 you must have more than one witness, or some circumstances 
 ^' more than one witness, in order to rebut the denial. But I take 
 it that the denial is not read as evidence in the cause, and the Court 
 does not use it as evidence; it is rather considered as a general 
 denial in the nature of a plea of not guilty, — a sort of general issue 
 which puts the plaintiff to the proof in a particular way."* 
 
 Swinburne, J., Wills, pt. I., §p (1640): "[By the Roman law a 
 will] must be proved forsooth by seven witnesses. Wherefore with 
 good reason was this excesse reformed first by the ecclesiasticall 
 '• law, which did reduce the number of seven witnesses to three 
 (the parochiall minister being one) and in some cases two; and then 
 by the general [ecclesiasticall] custom of this realm, which distinctly 
 requireth no more witnesses than two, so they be free from any 
 just cause of exception. ... So we are no further tyed than to 
 the observation of those requisites that be necessary jure gentium, 
 which requireth but two witnesses. ... [A man,] if he will, he may 
 procure the witnesses to subscribe their names to the testament; . . . 
 but no man is tyed to the observation of these cautels." 
 
 Statute of Frauds and Perjuries (1678), 2Q Car. II. c. 3, §5.' 
 
 devises of lands or tenements "shall be attested and subscribed in 
 
 the presence of the said devisor . by three or four credible 
 
 witnesses, or else they shall be utterly void and of none 
 
 effect."* 
 
 3 — Compare the authorities cited in W., that were present at the making thereof; 
 
 I 2047. nor unless it be proved that the testator 
 
 4 — Compare this provision in the same at the time of pronouncing the same did 
 
 statute; St. 29 Car, II, u. 3, § 19; no bid the persons present or some of them 
 
 nuncupative will of an estate exceeding bear witness that such was his will, or to 
 
 £30 is to be valid "that is not proved by that effect." 
 
 the oaths of three witnesses at the least. 
 
176 QUANTITATIVE RULES. No. 179. 
 
 DOE V. HINDSON (1765). 
 • I Day 41, 4p. 
 PratTj L. C. J. (Lord Camden) : "Here I must premise one ob- 
 servation, that there is a great difference between the method of 
 proving a fact in a court of justice, and the attestation of that 
 fact at the time it happens. These two things, I suspect, have 
 been confounded; whereas it ought always to be remembered that 
 the great inquiry upon this question is, how the will ought to be 
 attested, and not how it ought to be proved. The new thing intro- 
 duced by the Statute [of Frauds] is the attestation; the method of 
 proving this attestation stands as it did upon common -law prin- 
 ciples. Thus, for instance, one witness is sufficient to prove what 
 all three have attested; and though that witness must be a sub- 
 scriber, yet that is owing to the general common-law rule that where 
 a witness hath subscribed an instrument, he must always be pro- 
 duced because it is the best evidence. This we see in common experi- 
 ence, for after the first witness has been examined, the will is always 
 read."6 
 
 SUB-TITLE II. 
 
 KINDS OF EVIDENCE REQUIRING CORROBORATION. 
 
 R. v. ATWOOD & ROBINS (1788). 
 I Leach Cr. L. 4th ed. 464. 
 
 Robbery on the highway. The prosecutor deposed. That on the 
 day laid in the indictment he was met by three men, who, after 
 using him with violence, and threatening his life, demanded 
 ^^*^ his money; and that in consequence of their threats he de- 
 livered to them the property mentioned in the indictment; but that 
 it was so dark at the time, he could not swear that the prisoners 
 at the bar were two of the men who robbed him. An accomplice 
 was, under this circumstance, admitted to give his testimony; and 
 he deposed, that he and the two prisoners at the bar had, in the 
 company of each other, committed this robbery. The jury, upon 
 the evidence of these two witnesses, found the prisoners guilty; but 
 the judgment was respited, and the case submitted to the considera- 
 tion of the twelve judges. 
 
 BuLLER, J. : "1 thought it proper to refer your case to the con- 
 sideration of the twelve Judges. My doubt was whether the evi- 
 
 5 — Compare the authorities cited in W., to be called, as required by the rule for 
 §§ 2048, 2049. attesting witnesses, see post, Nos. 263-4. 
 
 For the number of attesting witnesses 
 
No. 182. CORROBORATION REQUIRED. 177 
 
 dence of an accomplice, unconfirmed by any other evidence that 
 could materially affect the case, was sufficient to warrant a convic- 
 tion. And the judges are unanimously of opinion that an accomplice 
 alone is a competent witness, and that if the jury, weighing the 
 probability of his testimony, think him worthy of belief, a conviction 
 supported by such testimony alone is perfectly legal. The distinc- 
 tion between the competency and credit of a witness has long been 
 settled.. If a question be made respecting his competency, the decision 
 •of that question is the exclusive province of the judge; but if the 
 ground of objection go to his credit only, his testimony must be 
 received and left to the jury, under such directions and observations 
 from the Court as the circumstances of the case may require, to 
 say whether they think it sufficiently credible to guide their decision 
 in the case." 
 
 REGINA v. FARLER (1837). 
 
 8 C. & P. 106. 
 
 Abinger, L. C. B. : "It is a practice which deserves all the rever- 
 ence of law, that judges have uniformly told juries that they ought 
 not to pay any respect to the testimony of an accomplice unless 
 the accomplice is corroborated in some material particular. 
 . . . The danger is that when a man is fixed, and knows that his 
 own guilt is detected, he purchases immunity by falsely accusing 
 others." 
 
 Chief Baron Joy, Evidence of Accomplices, 4, (1844) : "How the 
 practice which at present prevails could ever have grown into 
 a general regulation must be a matter of surprise to every 
 person who considers its nature, or inquires into the founda- 
 tion on which it rests. Why the case of an accomplice should 
 require a particular rule for itself; why it should not, like that of 
 every other witness of whose credit there is an impeachment, be 
 left to the unfettered discretion of the judge, to deal with it as the 
 circumstances of each particular case may require, it seems difficult 
 to explain. Why a fixed, unvarying rule should be applied to a 
 subject which admits of such endless variety as the credit of wit- 
 nesses, seems hardly reconcilable to the principles of reason. But, 
 that a judge should come prepared to reject altogether the testimony 
 of a competent witness as unworthy of credit, before he had ever 
 seen that witness; before he had observed his look, his manner, his 
 demeanour; before he had had an opportunity of considering the 
 consistency and probability of his story; before he had known the 
 nature of the crime of which he was to accuse himself, or the 
 temptation which led to it, or the contrition with which it was 
 
178 QUANTITATIVE RULES. No. 182. 
 
 followed; — that a judge, I say, should come prepared beforehand, to 
 advise the jury to reject without consideration such evidence, even 
 though judge and jury should be perfectly convinced of its truth, 
 seems to be a violation of the principles of common sense, the dic- 
 tates of morality, and the sanctity of a juror's oath. . . . Nor, if we 
 inquire into the foundation of the rule, shall we find in it anything 
 certain or fixed, such as ought to be the basis of an uniform and 
 never varying rule. We shall be told by one that it is the moral guilt 
 of the witness which produces this, as it were, practical incompetency; 
 whilst another ascribes it to the desire which he has to purchase 
 impunity for his own transgression. If it be the moral guilt of the 
 witness that affects his credit, the degree to which his credit is 
 affected must depend upon and vary with the magnitude of the 
 crime of which each witness confesses himself to be guilty. Crimes 
 are of every different shade, from the most venial petit larceny to 
 the most atrocious murder. Yet to all the rule equally applies. The 
 witness who on cross-examination confesses that he has been engaged 
 in many murders, appears more stained with guilt than he who 
 comes forward as an accomplice in the petit larceny then under 
 trial; yet the former is without the scope of the rule, while the 
 latter comes entirely within the sphere of its application. The tes- 
 timony of the same witness may in one trial be absolutely rejected 
 under the operation of the rule, and in the very next trial, in the 
 course of the same day, it may be permitted to go the jury; yet 
 his moral character has undergone no change in the interval. Moral 
 guilt, then, can never afford any rational foundation for a rule which 
 applies indiscriminately to the highest and to the lowest degrees of 
 that guilt. But an accomplice, we are told, comes forward to save 
 himself, and his credit is affected by the temptation which this holds 
 out to forswear himself. But who is it that establishes his guilt? 
 he himself — he is his own accuser; and the proof, and often the only 
 proof which can be had, of his guilt, comes from his own lips. He 
 is generally admitted as a witness from the necessity of the thing, 
 and from the impossibility without him of bringing any of the offenders 
 to justice. If this be the foundation of the rule, it rests on a 
 drifting sand. The temptation to commit perjury which influences 
 his credit must be proportioned to the punishment annexed to the 
 crime of which the witness confesses himself guilty. But the rule 
 applies with equal force to the accomplice who may apprehend but 
 a month's imprisonment for the most trifling petit larceny, and to 
 him who may reasonably dread death for an atrocious murder. Uni- 
 versal and undiscriminating, the rule levels all distinctions. Where 
 then is the necessity for, or good sense in, such a rule? Why not 
 leave the credit of the accomplice to be dealt with by the jury, sub- 
 ject to such observations upon it from the judge as each particular 
 case may suggest?"^ 
 
 I — Compare the authorities cited in W., §§ 2056-2060. 
 
No. 184. CORROBORATION REQUIRED. 179 
 
 REX V. READING (1734). 
 Lee temp. Hardewicke 7p. 
 
 Order of filiation of a child born of a married woman; it was 
 objected, "that the wife is the only evidence [offered], and that she 
 is not a competent witness in law to exonerate her husband 
 ■'■''*' of the charge and burthen of this child." 
 
 Haedwicke, L. C. J.: "[The wife] may be a competent witness 
 to prove the criminal conversation between the defendant and her- 
 self, by reason of the nature of the fact, which is usually carried 6n 
 with such secrecy that it will admit of no other evidence; . . . but 
 then in the present case it is gone further, for the wife is [here] 
 the only evidence to prove the absence and want of access of her 
 husband, whereas this might be made to appear by other witnesses. 
 ... It must be a very dangerous consequence to lay it down in gen- 
 eral that a wife should be a sufficient sole evidence to bastardize her 
 child and to discharge her husband of the burthen of his mainte- 
 nance; but the opinion the Court is of at present will not be a prece- 
 dent to determine any other case wherein there are other sufficient 
 witnesses as to the want of access ; but the foundation that is now 
 gone upon is the wife's being a sole witness." 
 
 GOODRIGHT dem. STEVENS v. MOSS (1777). 
 
 Cowper 592. 
 
 The lessor of the plaintiff claimed to be entitled to the premises 
 for which the ejectment was brought, as cousin and heir-at-law of 
 Ann Stevens, who died seised. And the only question in the 
 '* cause was, whether the lessor of the plaintiff was the legiti- 
 mate son of Francis and Mary Stevens, or was born of Mary before 
 their marriage. For the plaintiff the register of the marriage of 
 Francis Stevens and Mary Packer, dated November 2d, 1703, and 
 the register of the birth of the lessor of the plaintiff, in the follow- 
 ing words, "Christenings, 1704, Samuel, son of Francis and Mary 
 Stevens, baptized July 3d," were produced. It was insisted, on the 
 part of the defendant, "that the lessor of the plaintiff was born and 
 privately baptized before the marriage, and that there was a public 
 baptism after the marriage," which accounted for the register. They 
 first offered witnesses to general declarations by the father and 
 mother, that Samuel, the lessor of the plaintiff, was born before 
 marriage, which evidence Mr. Baron Eyre was of opinion to reject. 
 It was argued for the plaintiff that "though the testimony of parents 
 in their lifetime of their declarations after their decease might be 
 admissible in cases where proof of the marriage was presumptive 
 only, as by cohabitation or general reputation, yet neither their dec- 
 larations nor their personal testimony [of birth before marriage] 
 
180 QUANTITATIVE RULES. No. 184. 
 
 could be admitted to bastardize their issue where as in this case 
 the fact of the marriage was actually proved [by the register-entry]." 
 Mansfield, L. C. J. : "All the cases cited are cases relative to 
 children born in wedlock; and the law of England is clear that the 
 declarations [or testimony on the stand] of a father or mother cannot 
 be admitted to bastardize the issue born after marriage. ... As to 
 the time of the birth, the father and mother are the most proper 
 witnesses to prove it. But it is a rule founded in decency, morality, 
 and policy, that they shall not be permitted to say after marriage 
 that they have had no connection, and therefore that the offspring 
 is spurious; more especially the mother, who is the offending party."^ 
 
 Canon 105, at the Convocation of Canterbury (1603), Wokotfs 
 Constitutions and Canons, p. 143 : "Forasmuch as matrimonial causes 
 have been always reckoned and reputed among the weightiest, 
 ^°* and therefore require the greater caution when they come to 
 be handled and debated in judgment, especially in causes wherein 
 matrimony having been in the church duly solemnized is required 
 upon any suggestion or pretext whatsoever to be dissolved or annulled. 
 We do strictly charge and enjoin that, in all proceedings to divorce 
 and nullities of matrimony, good circumspection and advice be used, 
 and that the truth may (as far as it is possible) be sifted out by 
 deposition of witnesses and other lawful proofs and evictions, and 
 that credit be not given to the sole confession of the parties them- 
 selves, howsoever taken upon oath either within or without the 
 court." 
 
 Thomas Oughton, Ordo Judiciorum, tit. 213, p. 316 (1738): 
 "Since in our days (by the Devil's persuasion) a great many divorces 
 are sought on the ground of adultery, in order by that pre- 
 •'^'" text that the divorced parties may be able to proceed to another 
 marriage, and since (in order thus the more easily to obtain a 
 divorce) the wife is used to confess the adultery of which she is by 
 collusion charged, though in truth none has been committed; and 
 sometimes also the husband (that he may take a new wife) induces 
 the wife by threats, blows, blandishments, or some other unlawful 
 mode, to confess the adultery, though she had committed none. There- 
 fore, to avoid and obviate this craft and fraud, the judge, in this 
 class of cases, is accustomed to search out the woman's mind in 
 private (all other persons, especially the husband, being withdrawn), 
 and to examine her carefully as to the truth and as to the motive 
 for such a confession, and by every lawful means and mode to 
 elicit the truth; and if he finds craft and fraud of this sort, or even 
 
 2 — Compare the authorities cited in W., § 2063. 
 
No. 188. CORROBORATION REQUIRED. 181 
 
 some probable suspicion of it, he is accustomed to refuse a judg- 
 ment of divorce, unless the petitioner for the divorce shall have 
 proved the alleged adultery by witnesses, or at least by vehement 
 presumptive circumstances and public repute, or otherwise informed 
 the judge's conscience (because the alleged crime may be true), from 
 which the judge may believe that the woman's confession of the 
 adultery has not proceeded from craft or fraud."^ 
 
 BERGEN V. PEOPLE (1856). 
 
 17 III, 426. 
 
 Incest. Skinner, J.: "The court refused to instruct the jury on 
 
 the part of the defendants, that he could not be convicted upon his 
 
 mere confessions, made out of court, uncorroborated by facts 
 1 ft? 
 ^°* or circumstances. The elementary books generally state the 
 
 law to be, that confessions alone are sufficient to convict; yet it 
 is believed no court would permit a conviction for felony upon 
 mere confessions, made out of court, without some proof that a crime 
 had been committed, or of circumstances corroborating and fortifying 
 the confession. . . . Proof of any number of these facts and cir- 
 cumstances . consistent with the truth of the confession, or which 
 the confession has led to the discovery of, and which would not 
 probably have existed had not the crime been committed, necessarily cor- 
 roborate it. . . . The corroborating fact or facts in proof need not 
 necessarily, independent of the confession, tend to prove the corpus 
 delicti. ... In this case, from the nature of the crime, proof of the 
 corpus delicti, independently of the confession, except by the guilty 
 participant, and, in fact, without proving also the defendant guilty of 
 ,the crime charged, would be impossible. There is necessarily no 
 victim — nothing visible or tangible, the subject or consequence of 
 the wrong, capable of ascertainment and of proof. To require it 
 ■would be to require, independently of the confession, proof of de- 
 fendant's guilt. The corroborative evidence, therefore, must consist 
 of facts or circumstances, appearing in evidence, independent of the 
 confession, and consistent therewith, tending to confirm and strengthen 
 the confession. Without proof, aliunde, mere confessions that the 
 crime charged has been committed by some one, or of some fact or 
 circumstance confirmatory of the confession, a party accused of crime 
 cannot be found guilty, unless such confession be judicial or in open 
 court. The instruction should therefore have been given."* 
 
 Sir Matthew Hale, Pleas of the Crown, II, zgo {ante 1680) : 
 
 "I would never convict any person for stealing the goods cujusdam 
 
 ignoti merely because he would not give an account how he 
 
 •'■'''' came by them, unless there was due proof made that felony 
 
 3 — Compare the authorities cited in W., 4 — Compare the authorities cited in W., 
 
 a 2067-2069. §§ 2070, 2071. 
 
182 QUANTITATIVE RULES. No. 188. 
 
 was committed of these goods. I would never convict any person 
 of murder or manslaughter, unless the fact was proved to be done, 
 or at least the body found dead, — for the sake of two cases, one 
 mentioned in my lord Coke's P. C. cap. 104, p. 232, a Warwickshire 
 case, another that happened in my remembrance in Staffordshire." 
 
 REGINA V. BURTON (1854). 
 
 Dears. Cr. C. 282. 
 
 The defendant was found, with pepper in his pocket, coming out 
 of a warehouse containing a large quantity of similar pepper, both 
 loose and in bags; it was impossible to ascertain directly 
 189 whether there was any shortage in the warehouse amount. Mr. 
 Ribton, of counsel: "It is submitted that the corpus delicti must be 
 proved in every case, and you cannot make any difference in the 
 application of the rule." Maule, J. : "The offense must be proved. 
 If a man go into London Docks sober, without means of getting 
 drunk, and comes out of one of the cellars very drunk wherein are 
 a million gallons of wine, I think that would be reasonable evidence 
 that he had stolen some of the wine in that cellar, though you could 
 not prove [by direct testimony] that any wine was stolen or any 
 wine missed." Mr. Ribton: "The corpus delicti must be proved" j 
 Maule, J. : "Where is the rule that the corpus delicti must be ex- 
 pressly proved?"; Mr. Ribton: "In Lord Hale it is so laid down"; 
 Maule, J. : "Only as a caution in cases of murder" ; Jervis, C. J. : 
 "We are all of opinion that there is nothing in the objection." 
 
 COMMONWEALTH v. WEBSTER (1850). 
 
 5 Cush. 2p§, 208, and Bemis' Rep. ^/j. 
 
 "Shaw, C. J. : "The prisoner at the bar is charged with the 
 wilful murder of Dr. George Parkman. This charge divides itself 
 into two principal questions, to be resolved by the proof : first, 
 ^"^ whether the party alleged to have been murdered came to 
 his death by an act of violence inflicted by any person; and if so, 
 secondly, whether the act was committed by the accused. Under 
 the first head we are to inquire and ascertain, whether the party 
 alleged to have been slain is actually dead; and, if so, whether the 
 evidence is such as to exclude, beyond reasonable doubt, the suppo- 
 sition that such death was occasioned by accident or suicide, and 
 to show that it must have been the result of an act of violence. 
 When the dead body of a person is found, whose life seems to have 
 been destroyed by violence, three questions naturally arise. Did 
 he destroy his own life? Was his death caused by accident? Or 
 was it caused by violence inflicted on him by others? In most 
 
 5 — The facts of this case have already been stated in No. 17, ante. 
 
No. 191. REQUIRED KINDS OF WITNESSES. 183 
 
 instances, there are facts and circumstances surrounding the case, 
 which, taken in connection with the age, character, and relations 
 of the deceased, will put this beyond doubt. In a charge of crim- 
 inal homicide, it is necessary in the first place by full and substan- 
 tial evidence to establish what is technically called the corpus delicti, 
 — the actual offense committed; that is, that the person alleged to be 
 dead is in fact so; that he came to his death by violence and under 
 such circumstances as to exclude the supposition of a death by acci- 
 dent or suicide and warranting the conclusion that such death was 
 inflicted by a human agent; leaving the question who that guilty 
 agent is to after consideration. ... It has sometimes been said by 
 judges that a jury ought never to convict in a case of homicide 
 unless the dead body be found and identified. This, as a general 
 proposition, is undoubtedly true and correct; and disastrous and 
 lamentable consequences have resulted from disregarding the rule. 
 But, like other general rules, it is to be taken with some qualification. 
 It may sometimes happen that the dead body cannot be produced, 
 although the proof of the death is clear and satisfactory; as in a 
 case of murder at sea, where the body is thrown overboard in a dark 
 and stormy night, at a great distance from land or any vessel; 
 although the body cannot be found, nobody can doubt that the author 
 of that crime is chargeable with murder."" 
 
 STATE V. BARRETT (1898). 
 33 Or. ip4, 54 Pac. 807. 
 Homicide committed in a drinking-saloon. Bean, J. : "The dis- 
 trict attorney having closed the case for the state without calling 
 any of the persons who were in the saloon at the time of 
 the homicide, on the ground that they were the associates and 
 employes of the defendant, and in his opinion their testimony would 
 be unworthy of belief, although one of them was then in custody 
 in default of an undertaking to appear and testify on behalf of the 
 state at the trial, and another was on bail for that purpose, the 
 defendant's counsel moved the court to require such persons to 
 be called as witnesses for the state. The court declined to do so, 
 and the defendant excepted. The parties referred to were then 
 called by the defense, and testified, and the ruling of the court 
 in not compelling the state to produce them on the stand is assigned 
 as error. There is a diversity of judicial opinion as to whether, in 
 a criminal case, the prosecuting officer is compelled to call as wit- 
 nesses all the persons present at the commission of the alleged crime. 
 There are some early English cases which seem to lay down the 
 rule with more or less distinctness to that efifect. . . . And in this 
 country it is the rule in Michigan and Montana that the prosecuting 
 
 6 — Compare the authorities cited in W., §§ 2072, 2081. 
 
184 QUANTITATIVE RULES. No. 191. 
 
 ofJficer is bound to show by res gestae, or entire transaction, by calling 
 all the obtainable witnesses present at the time, unless It appears 
 that the testimony of those not called would be merely cumulative. 
 . . . But this doctrine is denied and repudiated, and we think right- 
 fully, by a great majority of the courts in which the question has 
 come up for adjudication. . . .It probably came into use in England 
 at a time when the right of a defendant in a criminal case to be rep- 
 resented by counsel, or to have witnesses appear and testify in his 
 behalf, was either denied entirely, or very much abridged. Under 
 such circumstances, it was, of course, important that, the prose- 
 cution be compelled to prove the entire transaction, and to call all 
 the witnesses present at the time, whether they would testify for 
 or against the defendant. But these restrictions upon the rights of 
 a defendant do not, and never did, exist in this country. Here the 
 right of the accused to appear by counsel, and to have compulsory 
 process for obtaining witnesses in his favor, is everywhere recog- 
 nized, and generally guaranteed by the fundamental law. There is 
 therefore no necessity for requiring the State to call all the persons 
 "who were present when the offense was committed, or any particular 
 number of them. The rights of the defendant are not in any way 
 abridged by a failure to do so. He has the assistance and advice 
 of counsel selected by himself, if able to employ one, and, if not, 
 appointed by the Court, and compulsory process for obtaining wit- 
 nesses at the public expense. In addition to this, the State is bound 
 to make out its case beyond a reasonable doubt; and if the prose- 
 cuting officer does not call sufficient witnesses for that purpose, or 
 if any unfavorable inference can be drawn from his failure to call 
 any witness, the defendant is not likely to suffer by the omission; and 
 if he calls only such witnesses as are favorable to the State, the de- 
 fendant has a right to call any others which he may suppose will 
 relate the facts favorable to him."^ 
 
 DOE v. FLEMING (1827). 
 4 Bing. 266. 
 Parke, B. : "The general rule is that reputation is sufficient evi- 
 dence of marriage, and a party who seeks to impugn a principle so 
 well established ought at least to furnish cases in support of 
 his position.'' 
 
 BREADALBANE CASE (1867). 
 
 L. R. I Sc. App. 182, 192, ipd, 211. 
 
 James Campbell, of the Glenfalloch family, an ensign in the 40tH 
 
 Foot, then stationed at Bristol, became acquainted with Eliza Maria 
 
 Blanchard, the young wife of a middle-aged grocer, named Lud- 
 
 ■'®^ low. With James Campbell she eloped from her husband, who 
 
 7 — Compare the authorities cited in W., § 2079. 
 
No. 193. REQUIRED KINDS OF WITNESSES. 185 
 
 did not long survive her departure, for he died in January, 1784. 
 The guilty parties, howfever, proved constant and true to each 
 other. In 1782, they went to America, with James Campbell's 
 regiment, he representing her as his wife. In 1783, an elder 
 brother of James Campbell, writing from Scotland to another brother 
 in Jamaica, stated that "He had had a letter from James in America," 
 and that "he and Mrs. Campbell were both well;" the writer adding, 
 "that he had not seen her, but that she was exceeding well spoke 
 of." In February, 1784 (a month after Ludlow's death), James Camp- 
 bell and Eliza Maria Blanchard arrived in England, with his regiment 
 which returned from Canada. It was then open to them to join hands, 
 but, judging from the evidence, they abstained from doing so. 'In 
 1788, they had a son, their eldest; and the great question was as to his 
 status — whether he was legitimate or not — ^that question depending on 
 another question — whether his parents had ever lawfully intermarried. 
 After many wanderings in England, they settled ultimately in Scot- 
 land, the country of James Campbell's domicil. Residing there con- 
 stantly from 1793 till his death, in 1806, they were universally reputed 
 to stand towards each other in the sacred relation of husband and 
 wife, although no formal marriage was ever shewn to have taken 
 place between them. 
 
 L. C. Chelmsford: "There appears to be the most conclusive evi- 
 dence that from the first period of their cohabitation Eliza Maria 
 Blanchard passed as the wife of James Campbell, and that for many 
 years they were generally reputed to be husband and wife. But the 
 evidence of the reputation of a marriage having existed between the 
 parties does not end with the death of James Campbell. If they were 
 not married, William John Lambe Campbell was illegitimate, and 
 therefore every acknowledgment of his legitimacy by those who must 
 have been acquainted with the way in which his parents were received 
 and reputed in society is evidence in favour of their having been law- 
 fully married. ... It may be assumed, from the letter of Colin Campbell 
 to his brother Duncan, that in September, 1783, it was believed by 
 the family of the Campbells that James Campbell was married, and 
 therefore, so far as the family was concerned, that he and Eliza Maria 
 Blanchard were considered to be husband and wife. But this did not 
 amount to habit and repute, which arises from parties cohabiting 
 together openly and constantly as if they were husband and wife, 
 and so conducting themselves towards each other for such a length 
 of time in the society or neighbourhood of which they are members 
 as to produce a general belief that they are really married persons. 
 Now, during the whole time of the cohabitation, down to the death of 
 Christopher Ludlow, James Campbell and Eliza Maria Blanchard 
 were not living in the neighbourhood and society of his family, and 
 therefore the reputation in the family of their being married was. 
 nothing more than the private opinion of the members of it. But if 
 this is sufficient to constitute habit and repute, so far as the family of 
 
186 QUANTITATIVE RULES. No. 193. 
 
 the Campbells was concerned, yet as, according to Lord Redesdale, in 
 the case of Cunningham v. Cunningham, 'repute must be founded, not' 
 in singular but in general opinion' of relations, and friends, and ac- 
 quaintances, the whole family of the Ludlows must have known that 
 the parties could not be lawfully married during the lifetime of Chris- 
 topher Ludlow. ... 
 
 "The case, therefore never began with habit and repute; nor could 
 it have had any origin at all in the sense in which it inducps a pre- 
 sumption of marriage, until after the death of Ludlow. That event 
 happened in January, 1784, and opened the way to a change from an 
 adulterous connection to a lawful marriage. . . . 
 
 "From 1793 down to 1806, the evidence is clear and distinct of an 
 universal recognition of the parties as husband and wife by every 
 member of the family, and by all persons with whom they associated; 
 and there is nothing whatever to break in upon the uniformity of this 
 recognition. If the case were confined to the period between the year 
 1793, and the death of James Campbell, in 1806, it would be amply 
 sufficient to establish a conclusive presumption of marriage by habit 
 and repute." 
 
 Lord Westbury: "Cohabitation as husband and wife is a manifes- 
 tation of the parties having consented to contract the relationship 
 inter se. It is a holding forth to the world by the manner of 
 daily life, by conduct, demeanor, and habit, that the man and 
 woman who live together have agreed to take each other in marriage 
 and to stand in the mutual relation of husband and wife; and when 
 credit is given by those among whom they live, by their relatives, 
 neighbors, friends, and acquaintances, to these representations and this 
 continued conduct, then habit and repute arise and attend upon the 
 cohabitation. The parties are holden and reputed to be husband and 
 ■wife; and the law of Scotland accepts this combination of circum- 
 stances as evidence that consent to marry has been lawfully inter- 
 changed." 
 
 MORRIS V. MILLER (1767). 
 
 4 Burr. 2057. 
 
 The opinion of the Court was asked "upon the following question, 
 "whether to support an action for criminal conversation, there must 
 not be proof of an actual marriage'; the fact was, they were 
 married at Mayfair chapel; the register or books could not be 
 admitted in evidence; Keith, who married them, was transported; and 
 the clerk, who was present, was dead; so that the plaintiiif could not 
 prove the actual marriage by any evidence." Counsel for the plaintifif 
 argued that "we proved articles [of post-nuptial settlement], . . . co- 
 habitation, name, and reception of her by everybody as his wife ; though 
 we did not indeed prove it by any register or by witnesses who were 
 
No. 196. REQUIRED KINDS OF WITNESSES. 187 
 
 present at the marriage". Lord Mansfield, C. ]., said: "It certainly 
 may be done so in all cases except two," — namely, bigamy and criminal 
 conversation. The plaintiff's counsel then argued that the defendant's 
 admission of the marriage sufficed. The defendant's counsel argued 
 that the reputation-evidence (i) "does not come up to the rule of 
 being the best evidence in the plaintiff's power," (2) it was not an 
 actual, i.e. ceremonial marriage. Mansfield, L. C. J. : "Proof of 'actual 
 marriage' is always used and understood in opposition to proof by 
 cohabitation and reputation and other circumstances from which a 
 marriage may be inferred.* . . . We are all clearly of opinion that in 
 this kind of action, an action for criminal conversation with the plain- 
 tiff's wife, there must be evidence of a marriage in fact; acknowledg- 
 ment, cohabitation, and reputation, are not sufficient to maintain this 
 action. ... It shall not depend upon the mere reputation of a mar- 
 riage, which arises from the conduct or declarations of the party him- 
 self. . . . Inconvenience might arise from a contrary determination; 
 which might render persons liable to actions founded upon evidence 
 made by the persons themselves who should bring the action. . . . Per- 
 haps there need not be strict proof from the register, or by a person 
 present, but strong evidence must be had of the fact, — as, by a person 
 present at the wedding dinner, if the register be burnt r,nd the parson 
 and clerk are dead." 
 
 Mansfield, L. C. J., in Birt v. Barlow, i Doug. I'ji, j/^ (1779) : 
 "An action for criminal conversation is the only civil case where it is 
 necessary to prove an actual marriage; in other cases, cohabita- 
 tion, reputation, etc., are equally sufficient since the Marriage Act 
 as before. But an action for criminal conversation has a mixture of 
 penal prosecution; for which reason, and because it might be turned to 
 bad purpose by persons giving the name and character of wife to women 
 to whom they are not married, it struck me, in the case of Morris v. 
 Miller, that in such an action a marriage in fact must be proved." 
 
 HAM'S CASE (1834). 
 
 II Me. 3pi, 3P4. 
 
 Indictment charging the respondent with the crime of adultery. To 
 prove the marriage the government relied on evidence of the follow- 
 ing facts: — The respondent moved into the town of Fayette, in 
 *"" this State, more than twenty years ago, representing at that 
 time, to the person of whom he hired the house, that he had a small 
 
 8 — Gilchrist, J., in State v. Winkley, present at the ceremony. This constitutes 
 14 N. H. 480, 495 (1843) : "In criminal proof of a 'marriage in fact,' and is merely 
 prosecutions, like indictments for bigamy, direct evidence of the marriage, as con- 
 adultery, etc., direct evidence of the mar- tradistinguished from cohabitation, etc., 
 riage is required, and this may appear which is indirect evidence of the marriage." 
 from the testimony of witnesses who were 
 
188 QUANTITATIVE RULES. No. 196. 
 
 family, only a wife and one child. Soon after hiring said house, he 
 moved into it with a woman and one child about five or six months old, 
 and continued to live with that woman, as his wife, until about three 
 years since, when he left her and came into this County, or the County 
 of Penobscot. In 1807, he built a house in Fayette, moved his family 
 into it, continued to reside there until he left the town. During their 
 cohabiting together, they were reputed to be husband and wife, and 
 were supposed to be married; and the woman had five or six children 
 which were reputed to be his. He called the woman "Miss Ham,'' and 
 treated her as a wife. . . . The counsel for the prisoner objected to all 
 evidence tending to prove a marriage by reputation, but the objection 
 was overruled. The counsel also contended that this evidence was 
 insufficient to prove the marriage. 
 
 Mellen, C. J. : "The question which at once presents itself on this 
 occasion is, Why should not the defendant's deliberate and explicit con- 
 fession of his marriage, in such a prosecution, be as competent evidence to 
 prove such marriage as a similar confession is to prove the crime of adul- 
 tery charged? If either fact exists, it must certainly be within his own 
 knowledge ; and, as a general proposition it is certainly true that a dehb- 
 erate and voluntary confession, understandingly made, is the best evi- 
 dence ; for he who makes it speaks from his actual knowledge of the fact ; 
 no one has any interest in its truth or interest in disputing it. . . . View- 
 ing the question under consideration independently of decided cases, there 
 would seem but one reason why the deliberate confession of his mar- 
 riage, made by defendant in a prosecution against him for bigamy or 
 adultery, should not be received as competent and satisfactory evidence 
 of such marriage, — namely, that the person solemnizing the marriage 
 had no legal authority to do it, and yet the want of authority might 
 not have been known by the person officiating or by the defendant 
 himself when he made the confession. ... In no other cases, however, 
 do we perceive that any unfavorable consequences could ensue which, 
 would not follow upon a conviction upon undisputed proof of a legal 
 marriage. . . . [Yet] the plea of guilty is a confession of the crime, 
 which includes a confession of the marriage, that being essential tO' 
 the existence of the crime; the Court receives such a plea and passes 
 sentence on the offender, though even this solemn confession in open 
 court may be made under a mistaken belief that the marriage was sol- 
 emnized by a person duly authorized, though the fact was otherwise. 
 . . . The question then is, whether a deliberate confession of marriage 
 is not as convincing evidence of the fact as the testimony of a witness 
 present; for in the case of confession [as well as of eye-witnesses] 
 the question of identity can never arise. . . . When we take all the 
 foregoing circumstances into consideration, together with the known 
 fact that marriages are seldom recorded as the law requires, and the 
 difficulty of ascertaining who were present at the marriage, especially 
 among the lower classes and after the lapse of a few years, we appre- 
 
No. 197. REQUIRED KINDS OF WITNESSES. 189 
 
 hend that the interests of public justice would be advanced by a re- 
 laxation of the rules of evidence touching the point before us and by 
 a more liberal principle applied in the investigation of facts, so that 
 the laws of the land may be more surely enforced against unprincipled 
 offenders and the public morals be more faithfully and effectually 
 guarded. . . . We now proceed to examine the evidence. . . . The re- 
 port states, that more than twenty years ago the defendant said he had 
 'only a wife and one child,' that soon after it was proved, he moved 
 into a house with "a woman and a small child," and lived with her as 
 man and wife, that they were reputed as such, and had several chil- 
 dren, that he called heir Miss Ham, and treated her as a wife. It 
 does not necessarily appear that the woman he lived with was the 
 same person that he had before spoken of. His calling her 'Miss 
 Ham,' or his wife, is no proof that she was his wife. It is far from 
 a deliberate and explicit confession that he was ever married to her. 
 As before has been observed, if he had 'a wife' more than twenty 
 years ago, it does not appear that she was living at the time the al- 
 leged offence was committed; nor does it appear that she was the 
 'woman' with whom he afterwards lived, and called 'Miss Ham.' 
 The confession is not sufficient, according to the principles above 
 stated, to justify a conviction. It does not amount to a distinct and 
 deliberate confession of a marriage, continuing to the time of the 
 offence charged in the indictment. Accordingly the verdict is set 
 aside, and as agreed, a nolle prosequi is to be entered." 
 
 Statuses. California, P. C. 1872, §1106; in bigamy, "it is not nec- 
 essary to prove either of the marriages by the register, certificate, or 
 
 other record evidence thereof." 
 ■^"' Illinois, Rev. St. 1874, c. 38, §29; St. 1845; in bigamy, "it shall 
 not be necessary to prove either of the marriages by the register or cer- 
 tificate thereof, or other record evidence; but the same may be proved 
 by such evidence as is admissible to prove a marriage in other cases." 
 
 Massachusetts, Pub. St. 1882, c. 145, § 31 : "When the fact of mar- 
 riage is required or offered to be proved before a Court, evidence of 
 the admission of such fact by the party against whom the process is 
 instituted, or evidence of general repute or of cohabitation as married 
 persons, or any other circumstantial or presumptive evidence from 
 which the fact may be inferred, shall be competent"; Rev. L. 1902, 
 ^- I5i> §39- "Marriage may be proved by evidence of the admission 
 thereof by an adverse party, by evidence of general repute or of co- 
 habitation by the parties as married persons, or of any fact from which 
 the fact may be inferred."* 
 
 9 — Compare the authorities cited in W., §§ 2084-2088. 
 
190 BOOK I, PART II, TITLE I. No. 198. 
 
 SUB-TITLE III. 
 
 VERBAL" COMPLETENESS. 
 
 READ V. HIDE (1613). 
 
 Coke's Third Institute, 1^3. 
 
 "It was resolved that no exemplification ought to be of any letters 
 patent or of any other record, or of the inrolment thereof, but the 
 
 whole record or the inrolment thereof ought to be exemplified; 
 
 so that the whole truth may appear, and not of such part as 
 makes for the one party and nothing that makes against him or that 
 manifesteth the truth.'' 
 
 ALGERNON SIDNEY'S TRIAL (1683). 
 
 p How. St. Tr. 817, 829, 868. 
 
 Seditious libel; Mr. Williams, his counsel, had instructed the ac- 
 cused: '"In the evidence against you for your writing, take care that 
 all that was writt by you on that subject be produced, and that 
 ■'■"" it be not given in evidence against you by pieces, which mast 
 invert your sense" ; on the trial, one of the passages read against Sid- 
 ney from his manuscript was : "The general revolt of a nation from 
 its own magistrates can never be called rebellion." At the trial, Sid^ 
 ney, arguing against ' using these passages piecemeal, said : "My lord, 
 if you will take Scripture by pieces, you will make all the penmen of 
 Scripture blasphemous. You may accuse David of saying, 'There is 
 no God,' and accuse the Evangelists of saying, 'Christ was a blas- 
 phemer and a seducer,' and the Apostles, that they were drunk". Jef- 
 fries. L. C. J. : "Look you, Mr. Sidney ; if there be any part of it that 
 explains the sense of it, you shall have it read. Indeed, we are trifled- 
 with a little. It is true, in Scripture it is said, 'There is no God'; and 
 you must not take that alone, but you must say, 'The fool hath said 
 in his heart, There is no God.' Now here is a thing imputed to you 
 in the libel; if you can say there is any part that is in excuse of it, 
 call for it." 
 
 Thomas Starkie, Evidence, fth Am. ed., II, -49 (1824) : "Of all 
 
 kinds of evidence, that of extra judicial and casual observations is the 
 
 weakest and most unsatisfactory. Such words are often spoken 
 
 """ without serious intention, and they are always liable to be mis- 
 
 r 
 
 10— -"Verbal" is here used in its proper spoken or written. "Oral" signifies "con- 
 sense of "consisting in words," whether sisting in speech." 
 
No. 201. VERBAL COMPLETENESS. 191 
 
 taken and misremembered, and their meaning is apt to be misrepresented 
 and exaggerated. I once heard a learned judge (now no more), in 
 summing up on a trial for forgery, inform the jury that the prisoner, 
 in a conversation which he had had with one of the witnesses, had 
 said, 'I am the drawer, the acceptor, and the indorser of the bill.' 
 Whilst the learned judge was commenting qm the force of these ex- 
 pressions, he was, at -the instance of the prisoner, set right as to the 
 statement of the witness, which was that the prisoner had said, 'I knoiv 
 the drawer, the acceptor, and the indorser of the bill.' Had the wit- 
 ness, and not the judge, made the mistake, the consequences might have 
 been fatal. The prisoner was acquitted.^^ 
 
 COMMONWEALTH v. KEYES (1858). 
 
 II Gray 323, 324. 
 
 Merrick, J.: "It is undoubtedly the general rule that whenever the 
 statements, declarations or admissions of a party are made subjects of 
 proof, all that was said by him at the same time and upon the same 
 subject is admissible in his favor, and the whole should be taken 
 and considered together. This is essential to a complete understanding 
 of what he intended to express by the particular phrases and languages 
 which he used. To give effect to general statements, without regard 
 to the qualifications with which they are accompanied, and by which 
 they may be materially modified, would manifestly lead to error, and 
 be likely to be directly productive of injustice. All therefore is to be 
 heard and weighed before it can be affirmed that the force and effect 
 of language, whether written or spoken, are fully and justly appre- 
 hended. In the construction of contracts, the same principle prevails, 
 requiring that each particular part shall be examined and considered, 
 in order to learn and comprehend the scope and purport of the whole. 
 All writings, whether of a public or private character, are to be sub- 
 jected to the same kind of scrutiny. No provision of a statute, how- 
 ever minute, is to be overlooked when searching for the design and 
 object of the Legislature in its enactment, and in considering how it 
 ought to be interpreted and explained; just as particular covenants in 
 a deed, or devises in a will, are to be construed according to the intent 
 of the parties in the one case, and of the testator in the other, so 
 far as it can be ascertained by bringing into view all the expressions 
 and provisions contained in these respective instruments." 
 
 II — Neilson, J., in Tilton v. Beecher, has been given in Starkie on Evidence, 
 
 Abbott's Rep. II, 837 (1875), on certain to the effect that this kind of testimony is 
 
 quotations being cited to him: "When you dangerous, first, because it may be mis- 
 
 and I were boys, we found that general apprehended by the person who hears it; 
 
 principle cited in all the text-books very secondly, it may not be well-remembered;' 
 
 much after the form that you have put it. thirdly, it may not be correctly repeated." 
 , , . Perhaps the best statement of that 
 
192 QUANTITATIVE RULES. NO, 202. 
 
 (A) COMPULSORY COMPLETENESS 
 
 EATON V. RICE (1836). 
 
 8 N. H. 378, 380. 
 
 Issue as to a dividing line between two lots of land. It appeared 
 that in the spring of 1835 the parties were together upon the land now 
 in dispute, and had a conversation about the line; and a witness 
 """ who was present at that time stated that he understood, by their, 
 conversation, that they then agreed where the true line was. Richard- 
 son, C. J. : "It is objected, in this case, that the defendant's witness 
 was improperly permitted to state generally what he understood the 
 agreement between the parties to have been, as to the line between 
 their lands, from their conversation on the subject. ... If a witness 
 should undertake to state in detail all that was said by two persons 
 in making a contract, in the precise order in which it was said, and 
 exactly as said, it would amount to nothing more than stating what he 
 understood them to say. But it can rarely happen that a 
 witness who was present when a conversation was had between 
 two individuals can at any time afterwards, and particularly at any 
 distant time, state precisely what was said by them, although he may 
 recollect distinctly an agreement made between them at the time. If, 
 then, in all cases the witness is required to state what was said so 
 accurately that the jury may be enabled to judge by the terms used 
 what a contract was, it must frequently happen that a contract not in 
 writing cannot be proved at all. . . . The recollection of a witness as 
 to what an agreement between parties was, according to his under- 
 standing of what was said by them at the time, may be very satisfac- 
 tory evidence, although he may not be able to recollect distinctly one 
 word that was said. . . . The credit that may be due to a witness in 
 these cases may depend much on his being able to detail enough of the 
 conversation to show that his understanding of the matter was prob- 
 ably right. But what he understood is in all cases evidence to be 
 weighed by the jury." 
 
 SUMMONS V. STATE (1856). 
 
 5 Oh. St. 325, 346, 351. 
 
 Murder by poisoning. One Mary Clinch, a witness at the first trial, 
 had since died. Thomas A. Logan was offered, on the third trial, to 
 prove her former testimony. He testified that he was present 
 at the first trial, and was the student and clerk of Judge Walker, 
 one of the counsel fpr the state; that he heard all the testimony given 
 by Mary Clinch, and thought he had taken it all down in writing, and 
 could give the substance of all she testified from his recollection, aided 
 by reference to his notes. On cross-examination as to this point, he 
 
No. 203. VERBAL COMPLETENESS. 193 
 
 stated that he took down, as nearly as possible, the substance of all 
 that Mary Clinch testified on examination, cross-examination, re-exam- 
 ination, and in rebutter. That he recollected, without reference to 
 his notes, the main points of her testimony, and recollected the sub- 
 stance of all of it, by refreshing his recollection with his notes. That 
 he could not say he took everything, but he thought he took the sub- 
 stance of everything. That the cross-examination was rapid, but Judge 
 Walker frequently stopped the witness, Majry Clinch, to enable him to 
 gtt it all down. . . . Logan was then requested by counsel for the state 
 to give the testimony of Mary Clinch from his recollection, refreshed 
 by his notes, which he had with him in court, but the notes were not 
 offered in evidence. Defendant's counsel objected. Bartley, C. J.: 
 "There would seem to be no sound reason for subjecting it [former 
 testimony] to a rigid rule amounting to its almost total exclusion, 
 ■which is inapplicable in other cases where testimony showing words 
 spoken or the statements of a party or other person is admissible. In 
 prosecutions for perjury, the testimony of the accused upon which per- 
 jury is assigned is not required to be ipsissimis verbis, but allowed to 
 be given in substance; so with the declarations of a co-conspirator, 
 declarations made in extremis, or the admissions or confessions of a 
 party. So also with testimony of a verbal slander, or the declarations 
 or statements of a party or witness, offered for purposes of contradic- 
 tion or impeachment. . . . What sufficient reason can exist for a de- 
 parture from the rule in case of the testimony of a deceased witness 
 on a former trial? ... It is apparent, from a review of the decisions 
 on this question, that the weight of authority is very decidedly against 
 the rule which requires an exact recital of the words used by the 
 deceased witness. The difficulty which appears to have troubled courts 
 so long on the question, has been a controversy about words, rather 
 than facts. The efficacy of the testimony consists, not in the mere 
 words used, but the matters of fact stated by the deceased witness. If 
 the facts stated by the deceased witness on the former trial, can be 
 narrated with substantial accuracy in all their material particulars, 
 there would seem to be no good reason for cavil about the very words. 
 . . . There is a disjtinction, however, between narrating the statements 
 made by the deceased witness and giving the effect of his testimony. 
 This distinction may be illustrated thus : If a witness state that A, 
 as a witness on a former trial, proved the execution of a written in- 
 strument by B, that would be giving the effect, which is nothing else 
 than the result or conclusion 'produced by A's testimony. But if the 
 witness states that A testified that he had often seen B write, that he 
 was acquainted with his handwriting, and that the name subscribed .to 
 the instrument of writing exhibited was B's signature, that would be 
 giving the substance of A's testimony, though it might not be in the 
 exact words. . . . While, therefore, a witness should not be trammeled 
 by a rule restricting him to the words used by the deceased witness. 
 
194 QUANTITATIVE RULES. No. 204. 
 
 he should not be allowed the latitude of giving the mere effect or re- 
 sult of the deceased witness' testimony.. 
 
 THOMSON V. AUSTEN (1823). 
 2 Dowl. & R. 361. 
 
 Assumpsit for goods sold and delivered. The plaintiff having proved 
 a prima facie case of demand upon the defendant for goods sold him 
 to the amount of 630/., a clerk of the defendant's attorney was 
 called, for the purpose of showing, that in an interview between 
 the clerk and the plaintiff, the latter had said, "he was so anxious to 
 get out of law that he would refer the question in dispute to the wit- 
 ness, as an arbitrator;" and upon that being declined, added, "he had 
 received 800/. from Mr. Campbell, on Mr. Austen's (the defendant's) 
 account, which he meant to set off against some bad debts owing to 
 him from some other persons." ... It was objected on the part of 
 the plaintiff that the evidence could not be received, because it was in 
 the nature of a confidential communication, made with a view to a 
 compromise, and was therefore protected by the general rules of evi- 
 dence; and the learned judge yielding to the objection, the evidence 
 was rejected. 
 
 Abbott, C. J. : "Upon the best consideration I have been able to give 
 to this case, I am of opinion that the mode in which the learned judge, 
 who tried this cause, left the point at issue to the jury, was not alto- 
 gether correct; and therefore it is our duty to send it down for fur- 
 ther inquiry before another jury. It appears that the former part of 
 the conversation to which the witness was a party, was received in 
 evidence, and was so summed up to the jury; and that the latter part, 
 which has been the subject of argument to-day, was rejected. ... It 
 is at all times a dangerous thing to admit a portion only of a conver- 
 sation in evidence, because one part taken by itself may bear a very 
 different construction and have a very different tendency to what would 
 be produced if the whole were heard; for one part of a conversation 
 will frequently serve to qualify and to explain the other." 
 
 Parnell Commission's Proceedings, ist, 4th, 6th, 7th, 83d days 
 
 (1888), Times' Rep. pt. j, p. 236, pt. 2, pp. 28, 104, lop; pt. 23, p. 60. 
 
 The Land League and its leaders were charged with encouraging 
 
 * outrage and crime, and numerous speeches of the leaders were 
 offered to prove this ; repeated discussion took place, during the trial, as 
 to the fair and proper way of using the passages relied upon ; in the At- 
 torney-General's opening, the following statements were made; the At- 
 torney-General: "I have not got the whole of the speeches; I have only 
 reports. A man may speak for two hours, but I may have only a few 
 lines of his speech"; President Hannen: "If you have not got the 
 whole of them, it will be open to Sir Charles Russell to correct you 
 
No. 206. VERBAL COMPLETENESS. 195 
 
 by referring "to such reports as do exist; but what you do use [in your 
 opening address] you will put in the whole of it [in evidence later]"; 
 the Attorney-General : "Without exception, the whole extract at my 
 command of every speech I read shall be put in." Then at a later 
 day, when certain speeches were put in evidence by Sir H. James from 
 constables' notes, Mr. Healy having claimed that "the proper course is 
 to read the entire speech," President Hannen said: "It is not nec- 
 essary for you, Sir Henry, to read the whole speech, but only those 
 portions on which you rely. . . . The only regular course is this (and 
 whatever it leads to, it must be followed) : You, Sir Henry, will call 
 attention to what you consider the material parts of the speech, and 
 Sir C. Russell can on cross-examination refer to other portions which 
 he may consider, and, if necessary, the cross-examination can be post- 
 poned until he has had an opportunity of seeing the full speeches." 
 Shortly afterwards, the counsel for the Times proposed an arrange- 
 ment by which copies of all the reports of speeches were to be prepared 
 and underlined and furnished to all parties for convenient reference 
 when Mr. Healy inquired: "Some of the speeches made would cover 
 two or three columns if taken verbatim, but they have been condensed 
 [in the constable's notes] into three or four sentences. What is the 
 intention with regard to them?" Sir H. James: "We can only present 
 the short report in those cases, because that is all we have got.'' On 
 a still later occasion, Mr. Reid, the counsel for Mr. O'Brien, read pas- 
 sages from his speeches showing his opposition to criminal methods, 
 and was interrupted by the Attorney-General: "You have omitted a 
 passage which precedes that"; Mr. Reid: "I thought the rule was that 
 what you wished to read should be read subsequently;" Attorney- 
 General: "1 was only suggesting that the course which has been pur- 
 sued on every other occasion by Sir Charles Russell and yourself 
 should be pursued now" ; President Hannen (to Mr. Reid) : "This 
 question arose before, and there was great complaint on your part that 
 the Attorney-General did not read all, and then you read, or Sir C. 
 Russell read something. But I have laid down the rule that, unless 
 you can come to a compromise, the true rule is for you to read what 
 you attach importance to and for the other side to do the same."^ 
 
 EATON'S TRIAL (1794). 
 
 2j How. St. Tr. 10^0. 
 
 Sedition. Mr. Gurney, for the defence: "I desire that the whole of 
 the [alleged seditious] speech of Mr. Thelwall may be read [by the 
 prosecution], a part only of which is included in the indict- 
 ment". Mr. Fielding, for the prosecution : "You may read it 
 as part of your evidence." Mr. Gurney: "1 know I may; -but I con- 
 ceive I have a right to have it read as part of yours. Whenever a 
 
 I — Compare the authorities cited in W., §§ 2097-2100. 
 
196 QUANTITATIVE RULES. No. 20G. 
 
 part of a paper is read in evidence by one party, the other party has 
 a right to insist upon the whole being read at that time." Mr. Re- 
 corder: "I think you [to Mr. Gurney^ must read it as a part of your 
 evidence, if you wish to have it read." 
 
 TILTON V. BEECHER (1875). 
 
 N. Y., Abbott's Rep. II, 2/0. 
 
 Action for criminal conversation. Mr. Evarts (cross-examining) : 
 "Look at this article, Mr. Tilton, . . . and say if it was written by 
 you and published in your newspaper?" A. "Yes, sir." Mr. 
 * Shearman: "It is an article entitled, 'Mr. Tilton's Rejoinder to 
 Mr. Greeley.'" Mr. Fullerton: "If we have the sermon, let us have 
 the text." Mr. Beach: "I think it is the rule, sir, that where an an- 
 swering letter is read, the letter to which it was a reply should be read 
 also." Judge Neilson : "That is the rule. Perhaps if counsel will look 
 at it they can judge whether it is material." Mr. Evarts: "Your 
 Honor, we understand exactly what the rule is. All that can be 
 claimed by our learned friends is that it gives them a right to read 
 any part of the paper to which it is a reply, if they see fit. They 
 cannot make us read it." Judge Neilson : "I have had occasion to 
 say that where one party puts a paper in they were at liberty to read 
 a part. of it. But it was deemed all put in by them, and the other side 
 could read any portion of it they thought proper." Mr. Fullerton: 
 "That does not present this case." Mr. Evarts: "How does it fail to 
 present this case? Supposing it is all in, are we obliged to read it 
 all? ... I do not understand that we are obliged to read the whole 
 article to get at the point which is important to us." Judge Neilson: 
 "The whole must be deemed put in by you." Mr. Evarts: "That may 
 be." Judge Neilson : "And you read such part as you now think 
 proper, and they can afterwards call attention to other parts. I think 
 that will answer."^ 
 
 PERRY V. BURTON (1884). 
 
 Ill III. 138. 
 
 Bill for partition of a tract of land. Scholfield, C. J.: "The tract 
 ■was entered by Isaac Cook on the 30th of November, 1835, and he con- 
 veyed the undivided half thereof to Asa M. Chambers and Shel- 
 ^^° don Benedict, by warranty deed, on the 7th of February, 1836. 
 In November, 1848, Benedict conveyed his interest in the tract to Cham- 
 bers, and on the loth of November, 1871, Chambers conveyed his in- 
 terest in the tract to the appellants, James S. Perry and John N. Hen- 
 derson. No question is made as to any of these conveyances, except 
 
 2 — Compare the authorities cited in W., § 2102. 
 
No. 209. VERBAL COMPLETENESS. 197 
 
 that by Benedict to Chambers. The deed effecting that conveyance was 
 lost, and its execution and contents were proved by oral evidence only, 
 and counsel for appellees insist that such evidence was not sufficiently 
 full and satisfactory. We can not concur in this view. The facts that 
 the deed was executed and was afterwards lost were clearly proved. . . . 
 His testimony as to the contents of the deed, we think, is sufficiently 
 full. A witness testifying to the contents of a lost deed is not to be 
 expected to be able to repat it verbatim from memory. Indeed, if the 
 were to do so, that circumstance would, in itself, be so conspicuous as 
 to call for an explanation. . . . 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 party. To require more would, in most instances, practically 
 amount to an exclusion of oral evidence in the case of a lost or de- 
 stroyed deed."* 
 
 VANCE V. REARDON (1820). 
 
 2 N. & McC. 2pp, S03. 
 
 Trover for a slave, claimed by the plaintiff under a sheriff's sale 
 under an execution on a judgment against William Harville, at Orange- 
 burgh, in 1806. The plaintiff produced a paper purporting to be 
 * an exemplification of the proceedings, certified by the clerk. It 
 
 contained a literal copy of the process, (being within the summary juris- 
 diction,) the judgment and the first execution. This execution was for 
 $95, including debt, interest, and costs, and was entered in the sheriff's 
 office the 5th November, 1806. Instead of a literal copy of the 
 second execution, the clerk furnished only an abstract, containing the 
 names of the parties, the amount of debt, interest, and costs, with a 
 memorandum of an entry in the sheriff's office, 2d July, 1808; and a 
 return of nulla bona, without date ; and also, that a third execution was 
 signed, 19th March, 1808. There was also a similar abstract of a third 
 execution, entered in the sheriff's office, 19th March, 1808, on which the 
 following return was stated to have been made, "levied on a negro man 
 named Joe, sold the same on the 4th April, 1808, purchased by Wil- 
 liam Vance, for $251.10," The certificate of the clerk to these exempli- 
 fications were in these words : "I, Samuel P. Jones, Clerk of the Court 
 of Common Pleas, for the district of Orangeburgh, do hereby certify, 
 that the two sheets of paper hereunto annexed, do contain a true copy 
 (or extract), of the proceedings in a certain cause, wherein Robert 
 Tutle is plaintiff, and William Harville is defendant," etc. Upon clos- 
 ing this evidence the motion was made for a nonsuit by the defendant, 
 on the ground, that the exemplification was only legal evidence so far 
 as it professed to give a copy of the proceedings, and there being only 
 
 3 — Compare the authorities cited in W., §§ 2iog, 2106. 
 
198 QUANTITATIVE RULES. No. 210. 
 
 an abstract of the execution, under which the sale, if any, was made, 
 the plaintiff had failed in the proof of property. 
 
 Johnson, J.: "The Act of the Legislature of 1721, P. L. 117, i Brev. 
 Dig. 315, authorizes attested copies of all records, certified by the clerks 
 of the Courts, to be given in evidence. ... It appears to me obvious 
 that the Legislature never intended by the term copies, to make extracts 
 evidence; the terms themselves are of different import, and besides the 
 mischief of confounding them appear to me too manifest to need ex- 
 posure. A party is not presumed, nor is he bound, to know what evi- 
 dence his adversary will adduce against him; and if he [the adversary] 
 be permitted to extract from a record only so much as he may deem 
 necessary to his own side of the question and to give it in as evidence, 
 he will always take care to leave out that which makes against him. 
 By the same rule, the opposite party would have the same right to ex- 
 tract so much as was subservient to his side of the question, which, 
 from the specimen of extraction furnished by this case, would produce 
 inexplicable difficulties. Thus, in this case, we find that on the first 
 ft. fa., when only $95 was due, $110 had been paid, and yet an alias issued, 
 and also a pluries; and, as if to force conviction upon me of the neces- 
 sity of a literal copy, the extract represents the pluries to have been 
 entered in the sheriff's ofiice on the 19th March, 1808, and the alias, 
 which must necessarily precede it, as having been entered on the 2d July, 
 1808, nearly four months after. But it has been argued, that these ex- 
 tracts were permissible as prima facie evidence of the existence of sUch 
 judgments and executions. I confess I do not understand how this 
 sort of evidence can apply to a case, when the court sees from the evi- 
 dence produced, that better and more ample proof of the fact does exist, 
 and is in the power of the party."* 
 
 (B) OPTIONAL COMPLETENESS. 
 
 THE QUEEN'S CASE (1820). 
 
 3 B. & B. 297. 
 
 Abbott, C. J. : "The conversations of a party to the suit, relative 
 to the subject-matter of the suit, are in themselves evidence against him 
 in the suit, and if a counsel chooses to ask a witness as to any- 
 thing which may have been said by an adverse party, the counsel 
 for that party has a right to lay before the Court the whole which was 
 said by his client in the same conversation, — not only so much as may 
 explain or qualify the matter introduced by the previous examination, 
 but even matter not properly connected with the part introduced upon 
 the previous examination, provided only that it relate to the subject- 
 
 4 — Compare the authorities cited in W., §§ 2108*21x0. 
 
No. 210. VERBAL COkPLETENESS. 191* 
 
 matter of the suit; because it would not be just to take part of a con- 
 versation as evidence against a party without giving to the party at the 
 same time the benefit of the entire residue of what he said on the same 
 occasion." 
 
 PRINCE V. SAMO (1838). 
 
 7 A. &■ E. 627. 
 
 DenmaNj L. C. J. : "This was an action for malicious arrest on a 
 false suggestion that money was lent by defendant to plaintiff, when it 
 had been in fact given. The plaintiff called his attorney as a wit- 
 ness; he happened to have been present at the trial of a prosecu- 
 tion for perjury instituted by the plaintiff against a witness in the action 
 wherein he had been arrested. The defendant's counsel inquired of him, 
 in cross-examination, whether the plaintiff had not, on the trial for per- 
 jury, stated that he himself had been insolvent repeatedly, and remanded 
 by the Court. This question was not objected to. On his re-examination, 
 the same witness was asked whether plaintiff had not also on that occa- 
 sion, given an account of the circumstances out of which the arrest had 
 arisen, and what that account was, for the purpose of laying before the 
 jury proof that the arrest was without cause, and malicious, of both 
 which facts there was scarcely any, if any, evidence whatever. This 
 question, expressly confined to that purpose, was whether plaintiff did 
 not say, in the course of his examination, that the money was given, 
 and not lent. To this question the defendant's counsel objected, not 
 on account of its leading form, but because the defendant's having 
 proved one detached expression that fell from the plaintiff when a 
 witness does not make the whole of what he then said evidence in his 
 own favour. My opinion was that the witness might be asked as to 
 everything said by the plaintiff, when he appeared on the trial of the 
 indictment, that could in any way qualify or explain the statement as 
 to which he had been cross-examined, but that he had no right to add 
 any independent history of transactions wholly unconnected with it. . . . 
 Upon the whole, we think it must be taken as settled that proof of a 
 detached statement made by a witness at a former time does not authorize 
 proof by the party calling that witness of all that he said at the same 
 time, but only of so much as can be in some way connected with the 
 statement proved. . . . We cannot assent to [the above passage of the 
 opinion in The Queen's Case]. We will merely observe that it was 
 not introduced as an answer to any question proposed by the House of 
 Lords, and may therefore be strictly regarded as extrajudicial; that it 
 was not necessary as a reason for the answer to the question that was 
 proposed ; that it was not in terms adopted by Lord Eldon or any of the 
 other Judges who concurred; that it was expressly denied by Lords 
 Redesdale and Wynford; and that it does not rest on any previous 
 authority." 
 
200 QUANTITATIVE RULES. No. 212. 
 
 ATHERTON v. DEFREEZE (1902). 
 
 129 Mich. 364, 88 N. W. 886. 
 
 Title to horses ; a witness for the plaintiff testified to the defendant's 
 admission that the horses were not his; on cross-examination by the 
 defendant's attorney, the witness, in reply to the question, "What 
 " else did he say ?" said : "He said he was so blind he couldn't see ; 
 and I asked him about how much the colts were worth, and he said 
 about $300, and if he didn't get them he would go to the poor-house." 
 GkanTj J. : "Parts of a conversation, having no reference "whatever to 
 the issue upon trial, are not admissible under the rule that a party is 
 entitled to the entire conversation. The rule means only that he is 
 entitled to the entire conversation bearing upon the subject in contro- 
 versy. Ten subjects may be talked about in one conversation. When 
 one of the ten is the subject of litigation, it is not competent to put in 
 evidence the conversation about the other nine. Defendant's blindness 
 and poverty had nothing to do with the title to the property."" 
 
 DEWEY V. HOTCHKISS (1864). 
 
 30 N. Y. 497, 502. 
 
 Action for the price of goods sold and delivered. The plaintiff's 
 clerks proved from his account-books items amounting to $1,269.72. 
 The defendant having, on the cross-examination, shown that the 
 "^'' books so produced, were the plaintiff's books of original entry, 
 read therefrom certain items- of credit, amounting to $152.09; and the 
 plaintiff's counsel, thereupon, offered to read from the said books, other 
 charges against the defendant, which had not been proved by the 
 plaintiff's witnesses. The defendant objected to the reading of these 
 entries, but the referee overruled the objection, and an exception was 
 taken. Hogeboom, J. : "The plaintiff's account-books, it is conceded, 
 were properly in evidence. In connection with the oral testimony of 
 the clerks, they established the larger part of the plaintiff's claim. Be- 
 ing in evidence, the defendant availed himself of them, to prove thereby 
 •credits in his own favor. There were equally well established, whether 
 they were in the plaintiffs' handwriting or not. The plaintiffs had 
 "brought them forward as their books, claiming for them authenticity 
 and credit, and could not deny their admissibility and force, even when 
 they operated against themselves. In using them for his purpose, the 
 defendant apparently traveled over their entire contents, selecting his 
 items wherever he pleased, without reference to dates or subject-matter, 
 or their connection or relation to the charges read by the plaintiffs. 
 Thus, he selected from the day-books three different items, each of con- 
 
 5 — Compare the authorities cited in W., §§2113-2116. 
 
No. 214. VERBAL COMPLETENESS. 201 
 
 siderable amount, of the respective dates of 2d May 1848, 22d March 
 1849, and 27th October 1849. He selected from the cash-book eight 
 different items, ranging between the dates of 21st July 1848, and 19th 
 November 1851. He had, therefore, used the whole of the books in- 
 differently for his purpose. He had taken the entire account between 
 the plaintiffs and the defendant, adopted it for his own benefit, and 
 was not, I think, at liberty to renounce it, where it made against him. 
 . . . The books constituted one entire series of accounts between these 
 parties, and, for the purpose of this case, may be regarded as if they 
 contained nothing else whatever — indeed, as if they had alL been pre- 
 sented in court by the plaintiffs on a single paper or account current. 
 In such case could the defendant be permitted to cull particular entries 
 from the account and exclude the residue? I think not. The rule that 
 a party whose oral declarations, in a conversation are improved in 
 evidence by his adversary, is not thereby permitted to introduce in his 
 own favor disconnected portions of the same conversation having refer- 
 ence to distinct and independent matters, has no close application to 
 such a case; ist. Because the account must be regarded as the single, 
 entire and continuous statement of the party offering it, presenting his 
 version of the true state of the business transactions between the par- 
 ties, — not necessarily entitled to credit in every part, if discredited by 
 other evidence, but admissible for the consideration of the jury; 2d, 
 Because the defendant, having adopted the whole statement by ranging 
 through its entire scope and contents, has given currency to the whole, 
 and has made it necessary to examine and take in the whole, in order 
 to determine how far the portions rejected by him bear upon, affect, or 
 qualify the portions selected. There is no evidence that the portions of 
 the account introduced by the plaintiff, after those introduced by the 
 defendant, do not materially qualify the effect of the latter items, and 
 do not in fact relate to the same precise subject-matter."' 
 
 CALVERT v. FLOWER (1836). 
 
 7 C.&P. 386. 
 
 Mr. Kelly, for the defendant, having called for the plaintiff's ledger, 
 due notice to produce having been given, Mr. Campbell, for the plaintiff, 
 said: "I will produce it, if it is called for as your evidence"; Mr. 
 "■^* Kelly: "I call for it, but subscribe to no condition"; Denman,. 
 L. C. J. : "If it is produced and given to Mr. Kelly, it will be for me 
 to decide whether Mr. Kelly makes such use of it as will compel him to 
 use it as his evidence." The book was produced, and Mr. Kelly turned 
 over several pages of it, so as to look at the contents of them. Denman, 
 L. C. J.: "I ought now to say that if Mr. Kelly looks at the book, he 
 will be bound to put it in as his evidence"; Mr. Kelly: "Certainly, I 
 am fully aware that I must do so"; Denman, L. C. J.: "I have men- 
 
 6 — Compare the authorities cited in W., §§ 2ii8-»ii«. 
 
202 QUANTITATIVE RULES. No. 214. 
 
 tioned this because it has been supposed by some, that an opposite coun- 
 sel-may look at the papers or books called for under a notice to produce, 
 and then not use them."' 
 
 SUB-TITLE IV. 
 
 AUTHENTICATION OF DOCUMENTS. 
 
 HORNE TOOKE'S TRIAL (1794). 
 25 How. St. Tr. 78. 
 High treason. A book purporting to be the minutes of the Constitu- 
 tional Society, at a meeting of March 28, 1794, with Mr. Tooke as chair- 
 man, was offered to be read by the prosecution, after some evi- 
 dence of the handwriting: 
 
 Mr. Tooke: "Is the insertion of my name in that book evidence of 
 my being present at the time?" 
 
 Lord Chief Justice Eyre: "It is certainly evidence to go to the 
 Jury of your being present." 
 
 Mr. Tooke: "My name being found in any book! that will be the 
 most extraordinary evidence I ever heard of; the bulk of the trash that 
 is to be found in that book I never saw or heard of before; but that 
 every time that my name is to be found in the book, that that is to be 
 evidence that I was present is a most extraordinary proposition; if I 
 wrote my name in the book, that would be evidence that I was there 
 when I wrote it, but my name being written in a book does not prove 
 my being there when it was wrote. ... If this evidence were to be 
 admitted in a charge of high treason, and it should therefore follow that 
 I partake of whatever is over or under my name, it would be the most 
 extraordinary evidence that ever was admitted in a court of justice." 
 
 Lord Chief Justice Eyre: "You are perfectly right, if the state 
 of the evidence depended entirely upon your name being found in a 
 book in possession of a Daniel Adams ; undoubtedly, in order to prove 
 your being present at these meetings, they must go a great deal farther 
 — they must show that these are the books of the society, they must 
 give probable evidence that these were books which you had access to, 
 which you acted upon, and that you gave credit to the entries that were 
 
 7 — Bartlett, J., in Austin v. Thomson, 45 stated entirely fails; and we see no suf- 
 N. H. 113, 117 (1863): "The only rea- ficient reason for a rule that is at vari- 
 son given for the supposed rule is [the ance with the general course of our prac- 
 unconscionable advantage of prying with- tice and that can hardly facilitate the ad- 
 out responsibility]. . . . But as the ministration of justice, since if it has any 
 party notified is not obliged to produce the x>raetical effect in addition to the rules for 
 papers, and as he may if he produce them the admission of competent evidence, it 
 decline to allow them to be examined ex- must be to compel the Court to allow 
 cept upon condition that if examined they incompetent evidence to go to the jury.*'' 
 shall be read in evidence, parties notified Compare the authorities cited in W.. | 
 seem amply protected from any such un- 2125. 
 conscionable advantage, and the reason 
 
No. 216. AUTHENTICATION OF DOCUMENTS. 203 
 
 in it by some conduct of yours. This is only one step toward the evi- 
 dence, to fix you with being a person present at this meeting." 
 
 Mr. (later L. C.) Erskine, arguing against the reading of the trea- 
 sonable paper: "Would it be said that this should be read as evidence 
 against the prisoner before his connexion with it is proved to have had 
 an existence ? I take the reason of that to be this — and I take the reason 
 of it to be founded in great wisdom, in that which in my opinion forms 
 the glory of the English law in all its parts, in an acquaintance with 
 the human character, in the recognition of all that belongs to the prin- 
 ciples of the human mind, in the recollection of our; wise ancestors that 
 men are not angels, that they carry about them (and your lordships 
 even carry about you) all the infirmities of humanity, and that is there- 
 fore shall not be permitted to make a strong impression upon the minds 
 of men by reading matters at which . . . the mind of man revolts, and 
 so in the course of a long trial the jury afterwards cannot discharge 
 from their recollection what they have heard. They do not remember 
 with precision whether that which was read was brought home to the 
 prisoner; and then they mix up in their imagination and recollection 
 matters which they may disapprove with disapprobation of the person 
 vrho is on trial before them. I take that, with humility to be the 
 principle. ... It must first of all be brought home to the person who 
 is to be affected by it, before it is suffered to be read; for after it is 
 read, the effect is had, and that is the danger I complain of." L. C. J. 
 Eyre: "If the question is whether it is now to be read, I think the 
 objection is good. If the question is whether it is evidence admissible, 
 not yet to be read, but to be read or not as other evidence shall bring 
 the matter of it sufficiently home to the prisoner, then the objection is 
 ill-founded." 
 
 STAMPER v. GRIFFIN (1856). 
 20 Ga. 312, 320. 
 Benning, J. : "No writing can be received in evidence as a genuine 
 writing until it has been proved to be a genuine one, and none as a 
 forgery until it has been proved to be a forgery. A writing, of 
 "•'■" itself, is not evidence of the one thing or of the other. A writing, 
 of itself, is evidence of nothing, and therefore is not, unless accompanied 
 by proof of some sort, admissible as evidence."* 
 
 8 — Jeremy Bentham, Rationale of /«- sumed, or so mnch as suspected, without 
 
 4icial Evidence, b. vii, t. Hi (1827), Bow- special ground, in any single instance; 
 
 Ting's ed., vol. vii, p. 179: "When from much less in a number of unconnected 
 
 an individual more or less known to me instances." 
 
 in person or by reputation, I receive a Branson, C. J., in Willson v. Betts, 4 
 
 letter, bearing his signature — that is, when Den. 201, 213 (1847): "In the ordinary 
 
 I receive a letter with a signature pur- affairs of men, it is very often assumed, 
 
 porting to be that of a person known to without proof, that he whose name has 
 
 me as above, — on what supposition can been affixed to a written instrument placed 
 
 such a letter have emanated from any it there himself. But when the signing 
 
 either hand than his? On no other than becomes a matter of legal controversy, it 
 
 that of forgery, — a crime not to be pre- must be established by proof," 
 
204 QUANTITATIVE RULES. No. 217. 
 
 SIEGFRIED V. LEVAN (1820). 
 6 S. & R. 308, 311. 
 Duncan, J. : "This was an action for debt on bond ; the plea, non 
 est factum. The plaintiff gave evidence, as stated in the bill of excep- 
 tions, and then offered the bond (of which he had made profert 
 ^ ' and given oyer) to the jury in evidence; this was objected to, 
 and the court sustained the objection, and would not suffer the bond to 
 be read in evidence. The exception to be considered is to this opinion 
 of the court. . . . The mistake arises from supposing that the court, 
 in suffering the deed to go in evidence to the jury, decide the issue; 
 nothing can be more unfounded. . . . All that is done by the Court, in 
 admitting the deed in evidence, is this, that if the execution of the deed 
 is proved by the subscribing witness, the party has made out a prima 
 facie case, not a conclusive one, or, in cases where recourse is had to 
 the secondary evidence, the collateral proof is such that a jury might 
 presume \i. e. infer] the execution; and then these facts are submitted 
 to the jury to exercise their own judgment, to draw their own conclusion 
 of the sealing and delivery. ... If the bond is proved by the subscribing 
 witness, it is read in evidence. Why? Not because the Court pro- 
 nounce, by admitting it in evidence, that it is the deed of the party ; but 
 because the party has given evidence of its execution. So, where the 
 execution is to be made out by facts and circumstances, it is admitted, 
 not because the Court draw any conclusion of the fact in issue, but 
 because some evidence is offered from which the jury might presume 
 [i. e. infer] the fact in issue, the sealing and delivery of the bond. If 
 there be no evidence of the execution, the Court will not permit the bond 
 to be read in evidence. But if there be any fact or circumstance tend- 
 ing to prove the execution or from which the execution mi^ht be pre- 
 sumed, then like other presumptive evidence it is open for the decision 
 of the jury." 
 
 ^MoDEs OF Authenticating Documents. "Some of the various 
 possible modes of proving a document's genuineness are, of course, 
 never questioned to be sufficient to entitle it to go to the jury. 
 ii9 Those about which question has arisen are only certain kinds of 
 circumstantial evidence. It will be necessary therefore to eliminate at 
 the outset the kinds of evidence as to which there is no dispute from 
 the present point of view. 
 
 "Evidence may be of three different sorts; namely, 'real evidence,' 
 testimonial evidence, and circumstantial evidence. 
 
 "(i) Autoptic proference (or 'real evidence'), occurs, for the execu- 
 tion of writings, when the act of writing is done in the presence of the 
 tribunal. The sufficiency of this is plain. 
 
 "(2) Testimonial evidence is always regarded as sufficient; the only 
 
 1— Quoted from W., § 2131. 
 
No. 219. AUTHENTICATION OF DOCUMENTS. 205 
 
 questions being the ordinary ones as to the qualifications of the witness 
 by knowledge.^ Ordinary admissions of a party are a sort of evidence 
 always regarded as sufficient to admit a document to the jury, but they 
 are to be distinguished from judicial admissions.* 
 
 "(3) Circumstantial evidence is of various sorts; and first, of those 
 not here involved: 
 
 "(o) Style of handwriting, i. e. similarity between that of the docu- 
 ment and that of the person alleged as its maker, is a sort of circum- 
 stantial evidence undisputed in its sufficiency; the controversies have 
 arisen over the proper modes of proving the fact of similarity.* 
 
 "(6) Sundry circumstances preceding or following the act of writing 
 may be appealed to as evidence. For example, if an unsigned writing 
 is left in a room with pen and ink, and Doe goes alone into the room, 
 then comes out with fresh ink-marks on his hand, and the writing is then 
 found to bear his name in signature, this would be regarded, no doubt, 
 as sufficient evidence to go to the jury; it is the same sort of evidence 
 that might be used to prove a murder or any other act done in that 
 room.° For evidence of this sort there seem to be no specific rules of 
 sufficiency. 
 
 "(c) The remaining sorts of circumstantial evidence are those which 
 give rise to quantitative rulings of sufficiency. They consist of groups 
 of circumstances, each by itself perhaps insufficient, but all combined 
 amounting in common experience to a sufficiency. They fall, roughly, 
 under four heads: (A) age; (B) contents; (C) custody; (D) signature 
 or seal." 
 
 PEARCE V. HOOPER (1810). 
 
 J Taunt. 60. 
 
 Trespass for breaking and entering the plaintiff's close, called Cold- 
 rinick Wood, and cutting down the coppice and underwood there grow- 
 ing, and seizing, taking, and carrying away the same. The de- 
 " fendant pleaded not guilty. The defendant gave notice to the 
 
 plaintiff to produce, upon the trial, the indenture of lease and release, 
 wherein the vendor had conveyed to him Coldrinick estate, by a de- 
 scription limited to a specific number of acres, which would necessarily 
 exclude Coldrinick Wood. The plaintiff accordingly produced these 
 deeds; but the defendant not being prepared with the attesting wit- 
 nesses to prove the execution of them, it was contended on the part of 
 the plaintiff, that without such proof they could not be received in evi- 
 dence. On the other hand, the defendant contended, that since these 
 instruments came out of the hands of the plaintiff, under a notice to 
 produce them, and contained his title to the premises (if he had any 
 title), it must be considered that further proof of the execution of them 
 
 2 — Ante, Nos. 83-85. 4 — Post. Nos. 427-433. 
 
 3 — Post, Nos. 219, 646. 5 — Ante, No. 33. 
 
206 QUANTITATIVE RULES. No. 219. 
 
 was unnecessary. Graham, B., was inclined to receive the evidence, 
 but, upon the authorities cited, rejected it, reserving the point; and the 
 jury found a verdict for the plaintiff. 
 
 Mansfield, C. J.: "There can be no doubt in this case. The mere 
 possession of an instrument does not dispense with the necessity which 
 lies on the party calling for it, of producing the attesting witness; an 
 instance is properly put in the case of a will, cited in Gordon v. Secretan 
 [8 East, 548], as having been tried before Lord Kenyon: for, supposing 
 that an heir-at-law is in possession of a will, and the devisee brings an 
 ejectment, and calls on the heir to produce the will; there the heir 
 claims, not under the will, but against the will, and it would be very 
 hard that the will should be taken to be proved against him, because 
 he produces it. But that is very different from the case where a man 
 is called on to produce the deed under which he holds an estate. The 
 plaintiff has no interest in the fee-simple of the estate, if this deed does 
 not convey it ; consequently, if he produces the deed under which he 
 claims, shall it not be taken to be a good deed so far as relates to the 
 execution, as against himself? There must necessarily, therefore, be a 
 new trial in this cause."* 
 
 (A) AUTHENTICATION BY AGE. 
 
 MEATH V. WINCHESTER (1836). 
 
 5 Bing. N. C. 182, 200. 
 
 TiNDAL, C. J.: "The first and second questions proposed by your 
 lordships to his majesty's judges are these: — In quare impedit to re- 
 cover the presentation to the church of K., the advowson whereof 
 ^^^ is claimed to be part of the temporalities of the Bishop of M., 
 a deed was oft"ered in evidence purporting to be brought from the cus- 
 tody particularly described in the bill of exceptions to which we are 
 referred by your Lordships; and also a case, purporting to be a case 
 stated for the opinion of counsel on the part of a former Bishop of M., 
 and brought from the same custody; and whether such deed and such 
 case were respectively admissible in evidence against the successors to 
 the Bishop of M. in that see, are the first and second questions pro- 
 posed to us by your lordships. With your lordships' permission we shall 
 reverse the order of considering the two questions, and give our answer, 
 first to the question, whether the case was admissible in evidence; for 
 as the deed and the case were found at the same time, by the same per- 
 sons, at the same place, and, indeed, in the very same parcel of papers, 
 the question of admissibility, so far as it depends upon the custody, is 
 precisely the same with respect to both. . . . Both the documents to 
 which exceptions have been taken were found tied up together with 
 
 6 — Compare the authorities cited in W., admissions hy failure to plead in denial 
 5§ 1297, 1258, and the doctrine of judicial (.post, No. 646). 
 
No. 221. AUTHENTICATION OF DOCUMENTS. 207 
 
 Other papers relating to the see, in a house called Lowton House, 
 which was the family mansion of the Doppings, that is, the mansion 
 house of the family of which Anthony Dopping, formerly Bishop of 
 Meath, was one member, and of which the witness who gave the testi- 
 mony was another: that this house was occupied by a member of the 
 Dopping family at the time the papers were found there: and, lastly, 
 that it was the house in which the Dopping family papers were kept. . . . 
 It is the proper and necessary intendment that there is nothing upon the 
 face or in the condition of the documents themselves which excites sus- 
 picion as to their genuineness ; for in this stage of the proceedings credit 
 must be given to the Court below that they would not have allowed the 
 documents to be read if they had borne upon their face or in their condi- 
 tion any evidence against their admissibility. The result of the evi- 
 dence, upon the bill of exceptions, we think is this, — that these docu- 
 ments were found in a place in which and under the care of persons 
 with whom papers of Bishop Dopping might naturally and reasonably 
 be expected to be found; and that is precisely the custody which gives 
 authenticity to documents found within it; for it is not necessary that 
 they should be found in the best and most proper place of deposit. If 
 documents continue in such custody, there never would be any question 
 as to their authenticity. But it is when documents are found in other 
 than the proper place of deposit that the investigation commences whether 
 it was reasonable and natural under the circumstances in the particular 
 case to expect that they should have been in the place where they are 
 actually found. For it is obvious that whilst there can be only one 
 place of deposit strictly and absolutely proper, there may be various and 
 many that are reasonable and probable, though differing in degree, some 
 being more so, some less. And in those cases the proposition to be 
 determined is whether the actual custody is so reasonably and probably 
 to be accounted for that it impresses the mind with the conviction that 
 the instrument found in such custody must be genuine." 
 
 MIDDLETON v. MASS (1819). 
 
 2 N. &■ McC. 55. 
 
 This was an action of trespass, to try the title to a tract of land 
 originally granted to Wm. Bull, in 1737. The grant to Bull was pro- 
 duced on the part of the plaintiff, and he then offered in evidence 
 ""■^ a deed from Bull to James Oglethorpe, under whom he claimed, 
 and from whom he deduced a title, dated in 1739, which had been 
 proved before a magistrate, and recorded in the auditor's office, a few 
 days after its execution; but he offered no proof of its execution, nor 
 did he prove any possession of the land, or any act of ownership over it, 
 by himself or any other person, through or from whom he deduced his 
 title : so that the question was, whether it was admissible as an ancient 
 deed, without proof of its execution? The presiding judge being of 
 
208 QUANTITATIVE RULES. No. 221. 
 
 Opinion that it was not, the plaintiff then offered to prove that the deed 
 had been in the possession of himself and those under whom he claimed, 
 for more than thirty years, and contended that it ought to be admitted 
 on this proof; but the Court thought otherwise, and the plaintiff was 
 nonsuited. A motion was now made to set aside the nonsuit, on the 
 ground that the deed ought to have been received in evidence, as an 
 ancient deed, on proof of the possession of the deed, alone, for the time 
 mentioned. 
 
 Johnson, J.: "Until this case occurred, I did not suppose that this 
 question admitted of any doubt; for the converse of the proposition 
 contained in the motion, is certainly recognized in the case of Thomp- 
 son V. Bullock, I Bay, 357, and the practice so far as I have been con- 
 versant with it, accords with that view of it. . . . Independent, how- 
 ever, of authority, it appears to me the reason and propriety of the 
 rule is apparent, and the more so from the only reason which I have 
 seen in opposition to it. It is because old things are hard to be proved. 
 Now, if this be a good reason, it operates with a twofold force on the 
 opposite side of this question: for it is certainly more difficult, to say 
 the least of it, to disprove an old thing than to prove it, especially when 
 in most cases the party would be called on to do so without notice of its 
 antiquity or the necessity of doing it. . . . No such indulgence [as to 
 presume due execution] is due to him who, as in the present case, neg- 
 lects for almost a century to assert his claim, by one single act of own- 
 ership. The doctrine contended for on the part of the motion might in 
 its consequences be productive of incalculable mischiefs ; for, although 
 it is not now usual to enter upon a course of villainy the fruits of which 
 are not to be reaped for thirty years to come, yet establish the rule con- 
 tended for, and it opens the door, and many will no doubt find an easy 
 entry."' 
 
 (B) AUTHENTICATION BY CONTENTS. 
 
 SINGLETON v. BREMAR (1824). 
 
 Harp. 201, 2og. 
 
 Action on promissory notes made by F. Bremar to Tabitha Singleton ; 
 defence, that they were void because given in consideration of unlawful 
 
 cohabitation. The plaintiff's mother was known as Lucy Sorrel. 
 
 With a view to the introduction of certain letters, the defendant 
 then read the evidence of Mr. Glover, which showed that Bremar was 
 
 7 — Daniel, J., in Caruthers v. Eldridge, from other circumstances the existence of 
 12 Gratt. 670, 687 (1855): "A presump- which is eqtially inconsistent with any 
 lion may be the result of a single circum- other hypothesis than that of the genuine- 
 stance or of many circumstances. Why ness of the instrument? The direct evi- 
 say that in the case of an ancient deed dences, the positive proofs by which the 
 there must be a departure from the gen- execution of the deed is established, be- 
 eral rule in respect to presumptions, and ing no longer attainable, and the rule 
 that its authenticity may be presumed which requires their production being dis- 
 
No. 223. AUTHENTICATION OF DOCUMENTS. 209 
 
 accustomed to take out of the office at Orangeburg, letters with a pri- 
 vate mark ; and proved that the letters now ofifered, having such a mark, 
 had also the post-office stamp, and were found among Mr. Bremar's 
 papers. The defendant submitted the letters themselves, to show by the 
 internal evidence, that they were the letters of the plaintiff; although 
 ,she cannot write, and the letters were not signed, and the handwriting 
 not identified. The internal evidence was found, in the language . of 
 jealousy towards Mr. Bremar's wife; the mention of Lucy Sorrel, and 
 of plaintiff's brother, and the importunate tone in which they were 
 written. But the presiding judge refused to look at the contents, and 
 the letters were rejected for want of proof of the handwriting. 
 
 . NoTT, J. : "The usual method of proving an instrument of writing, 
 where there is no subscribing witness, is by proof of handwriting. But 
 that could not be expected in this case, as the party cannot write. Even 
 if her name had been subscribed to the letters, the difficulty would have 
 been lessened. Some other method must therefore be resorted to, and 
 why not the letters be looked into? If they furnish internal evidence 
 of the source from whence they were derived, I can see no reason why 
 we may not avail ourselves of that evidence. Thus, for instance, if 
 they relate to facts which cannot be known to any other person, it will 
 be presumed that they were written by her authority. If they embrace 
 a number of facts which relate to her and her situation, and which 
 cannot apply to any other person, each of those facts constitutes a link 
 in the chain of circumstances which go to strengthen the presumption. 
 In ordinary cases such evidence will not be allowed, because the writing 
 is always presumed to be by the person by whom it purports to be 
 written, and proof of the handwriting therefore is higher evidence. But 
 in the present case the evidence offered was the best which the nature 
 of the case could afford."' 
 
 HOWLEY V. WHIPPLE (1869). 
 
 48 N. H. 487. 
 
 Issue as to a boundary line between lands of C. Bellows and Ira 
 Gould. The defendant attempted to prove a mutual agreement as to 
 the line. Defendants introduced two witnesses who testified, in 
 ^"'* substance, that . . . Ira Gould and Bellows agreed that the sur- 
 veyor should go on and run out and establish the line, and that they 
 would abide by it; that after making this agreement Ira Gould said 
 he was obliged to go to Montreal on business, but that his 
 son Joseph would remain with the surveying party, and that 
 
 pensed with, it seems to me wholly at war ticity of the deed may be presumed." 
 
 with the spirit of the law, which under Compare the authorities cited in W., §§ 
 
 such exigency allows a resort to circum- 2138-2141. 
 
 stantial or presumptive evidence, to hold 8 — Compare the authorities cited in W., 
 
 that a corresponding possession shall be §§ 2149.2152. 
 
 the only evidence from which the authen- 
 
210 QUANTITATIVE RULES. No. 223. 
 
 he would acquiesce in whatever Joseph might do; and that Joseph 
 remained through the running of the line. Plaintiff subsequently 
 called Wm. K. Richey, who testified that, at the time which, from 
 his description, the jury might have found to be the time the 
 line was run, he passed down the road, and saw Bellows, Joseph 
 Gould, the surveyor, and others, in the pasture, engaged in running 
 the line; . . . that he saw nothing of Ira Gould there. Plaintiff 
 then offered to show by this witness that a telegram was then sent by 
 Joseph Gould to Ira Gould at Montreal, and that a telegraphic answer 
 was received ^very soon, purporting to come from Ira Gould, and to be 
 sent from Montreal. The Court excluded the evidence, and plaintiff 
 excepted. 
 
 Sargent, J. : "In Connecticut v. Bradish, 14 Mass. 296, a letter was 
 admitted, as evidence against a party, where there was no evidence of 
 the handwriting, except the testimony of a witness that it was the same 
 he had received in reply to a letter which he had addressed to the same 
 party, and this ruling was sustained. It is claimed that, as in the 
 case of a letter, so in case of a telegraphic despatch, the person who 
 answers a despatch is so generally and uniformly the person to whom 
 the communication was addressed that it may be safely acted upon, and 
 that it is thus acted upon in all the business arrangements of the coun- 
 try. But there is a difference in principle between the two cases. . . . 
 There is nothing about the handwriting here that could indicate that 
 the message came from Gould, nor is there anything in the case to make 
 this message evidence any more than there would be if Gould had sent 
 a verbal message by one man who had communicated it to another, and 
 the latter had at length conveyed the message to the party for whom it 
 was designed and to whom it was originally sent. This message might 
 be received as it was sent, and would ordinarily be acted on in the 
 business of life ; but the only way to prove such a message in a court of 
 law would be to summon both the intermediate agents or bearers of the 
 message and in that way trace the message from the lips of the one 
 party until it was received in the ear of the other party. Anything 
 short of that would be to rely upon hearsay evidence of the very loosest 
 character."" 
 
 OBERMANN BREWING CO. v. ADAMS (1890). 
 
 J5 ///. App. 540. 
 
 Garnett, J. : "This is a suit in assumpsit by appellees for the price 
 of liquors alleged to have been sold by them to appellant. From the 
 judgment in plaintiffs' favor, the appellant brings this appeal. 
 224 -pjjg circumstances of the sale of the liquors were these: About 
 May 12, 1886, a man by the name of O'Brien went to appellees' store 
 and told Albert L. Smith, one of the firm, that he was authorized by 
 
 9 — Compare the authorities cited in W., §§ 2153-2154. 
 
No. 225. AUTHENTICATION OF DOCUMENTS. 211 
 
 appellant to purchase a stock of liquors and cigars for a saloon, which 
 appellant intended to open for him at 194 Randolph street, in Chicago, 
 and at the same time presented a card upon which G. J. Obermann, 
 the vice-president of appellant, had written: 
 
 'Th. O'Brien is fitting up a saloon, No. 194 Randolph; we guaran- 
 tee payment for any fixtures or work done for the place, ordered by 
 him. J. Obermann Brg. Co.' 
 
 "While Smith was talking to O'Brien, Tanner, another of the ap- 
 pellees, called up appellant through the telephone. On the trial in the 
 Circuit Court, Tanner was permitted, over the objection and exception 
 of appellant, to testify to the conversation he held through the tele- 
 phone with the person at the other end of the wire, and Smith was 
 allowed to testify to what Tanner said while at the telephone. Tanner 
 admitted he did not recognize the voice of the person who spoke to him 
 through the telephone, as he never knew any of the 'people' before, 
 and that he could not tell whether it was in Obermann's voice or not, 
 as he did not meet him until some months afterward. Smith did not 
 hear the voice and consequently could not say who the party was. 
 Tanner testified, however, that he asked through the telephone if O'Brien 
 had authority to buy goods for the Obermann Brewing Company for 
 their saloon at No. 194 Randolph street, and an affirmative answer was 
 given. O'Brien's authority to purchase the goods on appellant's credit 
 was the very point in issue. Now, the admission of the evidence went 
 to the merits of the case, and was clearly error, and its evil effect was 
 not neutralized by anything found in the record. The parties in charge 
 of appellant's office, and having authority to speak for it in such mat- 
 ters, testified that they received no such communication by telephone, 
 and denied O'Brien's authority to make the purchase for appellant or 
 on its credit. For aught that appears the inquiry of Tanner may have 
 been answered by a teamster or laborer who then happened to be in 
 appellant's office, but having no right whatever to answer questions of 
 that kind."^" 
 
 (C) AUTHENTICATION BY OFFICIAL CUSTODY. 
 
 ADAMTHWAITE v. SYNGE (1816). 
 4 Camp. 3^2, I Stark. 183. 
 Debt on a judgment recovered in the Court of Exchequer in Ireland. 
 The witness called to prove an examined copy of the judgment, stated, 
 that at the request of an attorney in Dublin, he went to the build- 
 ing where the four courts are held, and there compared the copy 
 produced with a parchment roll produced by the attorney. 
 
 Lord Ellenborough deemed this evidence insufficient, without either 
 showing that the original came from the proper place of deposit or out 
 
 10 — Compare the authoritiee cited in W., § 2155. 
 
212 QUANTITATIVE RULES. No. 225. 
 
 of the hands of the oiBcer in whose custody the records of the Exchequer 
 were kept. 
 
 Courthope, for the plaintiff, suggested, that from the contents of the 
 copy, it would appear, that the original was a record of the Exchequer. 
 
 Ellenborough, L. C. J. : "It must in the first place be proved by the 
 witness that the original came out of the proper custody; this cannot 
 be shown by any light reflected from the record itself, which may have 
 been improperly placed where it was found." 
 
 It then appeared, that the records of the different courts in Dublin 
 were all kept in one room, but in different presses. 
 
 EllenborougHj L. C. J. : "Since the records are kept in different 
 presses, the same difficulty still presents itself; it is very distressing to 
 strain the rules of law, when evidence might so easily have been pro- 
 cured. If the witness had stated, that the record came out of the hands 
 of the proper officer, it would have been sufficient. The evidence must be 
 launched by proving that the document came either from the proper per- 
 son or proper place; till then I cannot look upon it as a record. To 
 admit this evidence would afford a precedent for laxity of proof in 
 Other cases," Plaintiff nonsuited.^^ 
 
 (D) AUTHENTICATION BY OFFICIAL SEAL. 
 
 J. C. Jeaffreson, a Book about Lawyers, i, 21 (1867) ; "The Great 
 Seal" : "In days when writing was an art almost entirely confined to 
 religious persons, sealing was a far more important and 
 efficacious means of testifying the genuineness of docu- 
 ments than it is at present. ... In the feudal ages any 
 needy clerk who had turned his attention to caligraphy, 
 could have perpetrated forgeries in perfect confidence that 
 they would endure the scrutiny of the most accurate and skilful of 
 living readers. But the necessity for sealing placed almost insuperable 
 obstacles in the way of those who were best qualified and most desirous 
 to triumph over right by fictitious deeds. It was no easy matter to pro- 
 cure seals of any kind; it was very difficult to obtain for dishonest ends 
 the temporary possession of well-known seals. . . . Great barons, eccle- 
 siastical dignitaries, secular and religious corporations, had distinctive 
 seals at an early date ; but they were confided to the care of trusty keep- 
 ers, and were guarded with jealousy. When an official seal was used, 
 its keeper brought it with reverential care from its customary place of 
 concealment, and it was not applied to any document without satisfac- 
 tory cause shown why its sanction was required. An obscure tamperer 
 v/ith parchments could not hope to lay his hand on one of these im- 
 portant seals. If he procured an impression of a respected seal, he 
 could not obtain a fac-simile of the original. Seal-engraving was an 
 
 II — Compare the authorities cited in W., §§ 2158, 2159. 
 
No. 226. AUTHENTICATION OF DOCUMENTS. 213 
 
 art in which there were but few adepts; and the artists were for the 
 most part men to whom no rogue would dare propose the hazardous task 
 of counterfeiting an official device. . . . The forger of deeds in older 
 time had not overcome all difficulties, when he had surreptitiously ob- 
 tained a seal. The mere act of sealing was by no means the simple 
 matter that it is now-a-days. To place the seal on fit labels rightly 
 placed, and in all respects to make the fictitious deed an accurate imita- 
 tion of the intended deeds to which the particular seal of a particular 
 great man was applied, were no trifling feats of dexterity ere scriveners 
 had congregated into fraternities, and law-stationers had been called 
 into existence. To get a supply of suitable wax was an undertaking by 
 no means easy in accomplishment. Sealing-wax was not to be bought 
 by the pound or stick in every street of feudal London. Cire d'Espagne 
 — sealing-wax akin to the bright, vermilion compound now in use — was 
 not invented till the middle of the sixteenth century. William Howe 
 assures his readers that 'the earliest letter known to have been sealed 
 with it was written from London August 3, 1554, to Heingrave Philip 
 Francis von Daun, by his agent in England, Gerrand Herman,' and long 
 after that date the manufacture of sealing-wax was a secret known to 
 comparatively few persons. In feudal England there were divers ad- 
 hesive compounds used for sealing. Every keeper of an official seal had 
 his own recipe for wax. Sometimes the wax was white; sometimes it 
 was yellow; occasionally it was tinged with vegetable dyes; most fre- 
 quently it was a mess bearing much resemblance to the dirt-pies of little 
 children. But its combination was a mystery to the vulgar ; and no man 
 could safely counterfeit a sealing-impression who had not at command 
 a stock of a particular sealing-earth or paste, or wax. Eyes powerless 
 to detect the falsity of a forger's handwriting could see at a glance 
 whether Kis wax was of the right colour. Moreover, this practice of 
 attesting private deeds by public or well-known seals gave to transac- 
 tions a publicity which was the most valuable sort of attestation. A 
 simple knight could not obtain the impression of his feudal chieftain's 
 seal without a formal request, and a full statement of the business in 
 hand. The wealthy burgher, who obtained permission to affix a munici- 
 pal seal to a private parchment, proclaimed the transaction which oc- 
 casioned the request. The thriving freeholder who was allowed the 
 tise of his lord's graven device, had first sought for the privilege openly. 
 'Quia sigillum meum plurimis est incognitum' were the words introduced 
 into the clause of attestation ; and the words show that publicity was his 
 object. And to attain that object the seal was pressed in open court, 
 in the presence of many witnesses."^^ 
 
 12 — "When a document bearing a pur- uinely his seal's impression, (3) that this 
 
 porting official seal — a notary's certificate seal-impression was affixed by him; and, 
 
 of protest, for example — is offered in furthermore, (4) that it is allowable to 
 
 court, the acceptance of it for the offered receive his hearsay official statement as 
 
 purpose involves the assumption of four testimony to the fact stated by him. The 
 
 things, namely, (i) that there is an of- first three of these elements go to the 
 
 ficial of that name, (2) that this is gen- matter of the genuineness of the docu- 
 
214 QUANTITATIVE RULES. No. 227. 
 
 Chief Baron Gilbert, Evidence ip {ante 1726) : "The distinction is 
 to be made between seals of public and seals of private credit ; for seals 
 of public credit are full evidence in themselves, without any 
 ' oath made; but seals of private credit are no evidence but by 
 an oath concurring to their credibility. Seals of public credit are the 
 seals of the King, and of the public courts of justice, time out o£ 
 mind." 
 
 GRISWOLD V. PITCAIRN (1816). 
 2 Conn. 8$, go. 
 Assumpsit on a charter party; plea in bar, a judgment of the same 
 cause in the Supreme Court of Denmark, at Copenhagen, affirming a 
 judgment of the Sea Court. A purporting copy of this record 
 ■^ ' was offered. The record was authenticated by the great seal of- 
 Denmark. There was no certificate that the decree, &c. offered in evi- 
 dence, was a copy of record, but below the seal was the signature 
 Colbiornsen, without any addition of his official character. The trans- 
 lator of the record, deposed, that he knew the seal attached to the 
 original to be the royal seal of the kingdom of Denmark. J. M. Forbes, 
 Esq. agent of the United States at Copenhagen, certified, that the sig- 
 nature at the foot of the record was that of the counsellor of confer- 
 ences, Colbiornsen, chief judge of the highest court. To the admission 
 of this record the plaintiffs objected. 
 
 Gould, J.: "... It is first objected that the record in ques- 
 tion is not duly authenticated, — i. e. not accompanied with 
 sufficient evidence of its being genuine. But, in the proof 
 of foreign documents, there must from the nature and 
 necessity of the case be some ultimate limit, beyond which 
 no solemnity of authentication can be required. And the public national 
 seal of a Kingdom or sovereign State is, by the common consent and 
 usage of civilized communities, the highest evidence and the most sol- 
 emn sanction of authenticity, in relation to proceedings either diplo- 
 matic or judicial, that is known in the intercourse of nations. The 
 seals of foreign municipal courts, on the contrary, must be proved by 
 
 ment; that is to say, the document pur- any presumption of genuineness, when- 
 
 ports to be that of J. S., a notary, assert- ever made, covers both elements; there is 
 
 ing a certain fact, and the net result of no case presuming the seal's impression to 
 
 the first three elements is that vi?e accept have been of his seal but not affixed by 
 
 as a fact that J. S., a notary, did make him, nor vice versa. Hence, in effect, the 
 
 this written assertion. If there were a situation, for seal or signature alike, is 
 
 signature only, with no seal, and the doc- reducible to the following elements and 
 
 ument was similarly accepted, the second is so in practice treated: (i) that there is 
 
 and third elements would merge («. e., the an official of that name; (2) (3) that this 
 
 purporting J. S.'s signature is accepted as document was genuinely executed by him. 
 
 written by him); it is only in the case The remaining element (4), that this hear- 
 
 of a seal that they are distinct (for it say statement of his is admissible, is ob- 
 
 might be his seal's impression and yet viously concerned with the Hearsay rule- 
 
 another person might have affixed it). only, and may therefore be dismissed as 
 
 Thus it is that the second and third ele- having no present relation with the prin- 
 
 ments are always judicially united, i. e., ciple of Authentication." (W. § 2161). 
 
No. 230. AUTHENTICATION OF DOCUMENTS. 215 
 
 extrinsic evidence. ... In the present case, the proof of the genuine- 
 ness of the record, given in evidence, is, in point of solemnity, the highest 
 possible, the national seal of the kingdom of Denmark. And, as if the pro- 
 duction of the seal were not, of itself sufficient ; its genuineness has been 
 proved by evidence aliunde, to which there was no objection. . . . But 
 there is no evidence, it is said, that the seal was affixed by a proper 
 officer. Assuming the seal to be genuine, that fact must of course be 
 presumed, unless the contrary is shown. For any higher evidence of 
 the fact, appearing upon the face of the record, than the seal itself 
 imports is impossible, and to require extrinsic evidence of it would be 
 to subvert the rule itself that a national seal is the highest proof of 
 authenticity," 
 
 COMMONWEALTH v. PHILLIPS (1831). 
 II Pick. 28, so. 
 
 Information praying for additional punishment for one convicted for 
 the third time of larceny. The prior convictions were to be proved. It 
 was objected that the exemplification of the record of the con- 
 ^^" viction, before the Supreme Judicial Court in Middlesex, certified 
 by the clerk, under the seal of the court, was not properly authenticated 
 without the certificate of the chief justice, that the person certifying 
 was the clerk duly authorized, and that it was not competent evidence 
 of such conviction to go to the jury. On this point the prisoner's coun- 
 sel remarked, that the clerk is appointed by the Supreme Court; that 
 his certificate used before another tribunal, in a different place, has no 
 validity propria vigor e, because the judges of other courts have no 
 means of knowing whether he is the clerk lawfully appointed, or a 
 usurper of the office; and that the seal of the court, without a clerk's 
 signature, is insufficient, for a stranger might get possession of the seal. 
 
 Shaw, C. J. : "Without expressing any opinion as to the requisites 
 for giving authenticity to records of other governments and states 
 so as to entitle them to be received as evidence in this common- 
 wealth, the Court are of the opinion, that a copy of the proceedings 
 of any court of record in this Commonwealth, certified to be a true 
 copy of the record of such court, by the clerk of such court, under 
 the seal thereof, is competent evidence of the existence of such 
 record in every other judicial tribunal in the Commonwealth."^^ 
 
 WALDRON V. TURPIN (1840). 
 
 15 La. 552, 555. 
 
 MoRPHY, J.: "This action is brought on two promissory 
 
 notes, dated at Grand Gulf, in the State of Mississippi, 
 
 drawn to the order of plaintiff, by the firm of White, 
 
 an Turpin & Nephew, of which defendant was a member, and 
 
 made payable at the Grand Gulf Railroad and Banking Company, in 
 
 13 — Compare the authorities cited in W., § 2164. 
 
216 QUANTITATIVE RULES. No. 230. 
 
 that State. Defendant pleaded the general issue and novation, as to 
 one of the two notes. Judgment being rendered in favor of the 
 plaintiffs, this appeal was taken. To prove the demand at the place 
 mentioned in the body of the notes sued on, two documents were 
 offered in evidence, purporting to be notarial protests of the notes. 
 Their introduction was opposed, on the ground that no proof had 
 been adduced of the signature and official capacity of the person who 
 made them. This objection having been overruled by the judge, a 
 bill of exceptions to his opinion was taken, to which our attention 
 has been particularly requested. We understand the general rule on 
 this subject to be, that the signature and official capacity of persons 
 assuming the character of public officers in foreign countries, must be 
 proved when contested in a court of justice. The different States of 
 the Union must, we apprehend, be viewed in the light of foreign coun- 
 tries, with regard to each other, so far as their municipal laws, 
 and the individual sovereignty retained by each of them, are con- 
 cerned; and the Courts of one State can have or be presumed to have 
 no more knowledge of the signature and capacity of the public offi- 
 cers of another State than of any other foreign country. To the 
 above rule there exists an exception as regards notarial protests of 
 foreign bills of exchange. It has been introduced in aid of com- 
 merce, founded wholly upon the custom of merchants and public 
 convenience; it has been acknowledged and maintained by the Courts 
 of law, and such protests receive credit everywhere without any 
 auxiliary evidence. We are now asked to extend this exception to 
 the protests of two notes, executed and payable in the State of Mis- 
 sissippi, and to receive such protests as evidence per se, of a demand 
 of payment at the indicated place. No adjudged cases have been 
 shown to us, nor have we been able to find any in which the 
 extension contended for has been allowed, nor do we see any good 
 reason why it should. The importance and almost universal use of 
 bills of exchange as the means of remittances from one country to 
 another; the great commercial facilities they have found to offer; and 
 the delay and trouble of procuring evidence from distant places are 
 among the grounds upon which this exception has grown up. They 
 do not apply to promissory notes, or other moneyed obligations, more 
 limited in their circulation and general usefulness to foreign trade."'* 
 
 STOUT V. SLATTERY (1850). 
 
 13 III. 162. 
 
 Treat, C. J.: "Slattery sued out an attachment against 
 Stout, from a justice of the peace. There was service 
 on a garnishee, and a publication of notice to the 
 "^^ defendant. On the fifth of February, 1849, a judgment was en- 
 tered against the defendant, for $94.62, and, on the twelfth of the 
 
 14 — Compare the authorities cited in W., § 2165. 
 
No. 232, AUTHENTICATION OF DOCUMENTS. 217, 
 
 same month, a judgment was entered against the garnishee in the 
 same amount. On the sixteenth of March, 1849, the defendant ob- 
 tained an order for a certiorari, and filed the same, and an appeal 
 bond, in the Circuit Court. He stated, in his petition for the cer- 
 tiorari, that, by reason of absence from the state, he had no actual 
 knowledge or notice of the pendency of the attachment, or of the 
 rendition of the judgments therein, until the time allowed for an ap- 
 peal had expired, and that he was not in any manner indebted to the 
 plaintiff. The jurat to the petition was subscribed, 'Calvin A. War- 
 ren, notary public for said county of Adams.' No writ of cer- 
 tiorari was ever issued. . . . The notary public, before whom the peti- 
 tion was verified did not affix his seal of office to the jurat, and it is 
 insisted, that his omission to do so, presents an insuperable objection 
 to the proceedings; in other words, that a notary can perform no 
 official act without evidencing it by his notarial seal. This position 
 cannot be maintained. We are clearly of the opinion, that the failure 
 of the notary to annex his official seal to the jurat does not vitiate 
 the proceedings based on the petition. Within the county of Adams 
 the addition of the seal was not necessary [even to evidence genu- 
 ineness]. If the petition was to be used in another county, the seal 
 of the notary, or some other evidence of his official character, would 
 be indispensable. . . . The power to administer oaths is expressly 
 conferred by statute and is not one of the incidents of office. The 
 affixing of the notarial seal is not essential to the validity of his 
 acts, except in cases where it is required by some rule of the common 
 law or some provision of the statute. In all other cases his official 
 acts, at least within the State, are none the less valid because they 
 are not authenticated by his notarial seal. The only difference relates 
 to the proof of his authority. If the act is not evidenced by the 
 seal of the notary, his signature and official character must be estab- 
 lished by some other legitimate evidence. ... It is only when it 
 becomes necessary to prove the making of the oath that the seal of 
 the officer or some competent evidence of his authority must be pro- 
 duced." 
 
 DEN dem. TOURS v. VREELANDT (1800). 
 
 7 N. J. L. 352, 353. 
 
 Ejectment. Title was claimed under a case from the Reformed 
 Bergen Church to Tours. Kinsey, C. J. : "On the trial of this cause, the 
 plaintiff offered in evidence a lease from the Reformed Bergen 
 Church, under what purported to be the seal of the corporation, 
 without adducing any proof of the authenticity of the seal. The 
 sufficiency of this evidence being objected to, it was overruled by 
 the presiding judge, and, on this failure to make out his case, the 
 plaintiff suffered a nonsuit. 
 
218 QUANTITATIVE RULES. No. 232, 
 
 "The question, therefore, now before the court is, whether this 
 evidence was properly overruled? A case has been cited from 
 Viner which was originally reported by Skinner, and which, when 
 examined in this last book, does not appear to warrant the con- 
 struction that has been put upon it. So far as respects the pres- 
 ent question, it is thus given by Skinner. 'In ejectione firmae 
 between Lord Brounker and Sir Robert Atkyns for the mastership 
 of the hospital of St. Catharines, which is a corporation con- 
 sisting of the master, brethren, and sisters: and in this case it 
 was said, that where there is a ccmimon seal put to a deed, that 
 is title enough of itself, without any witness to prove it, or that 
 the major part of the college be agreed; and if it be said, that it 
 was put to by the hand of a stranger, that shall be proved on the 
 side that says so:' This report is certainly not so free from ambiguity 
 as might be wished, but I think the meaning may be collected from a 
 careful examination of the case, and it appears to me to go no 
 further than to declare, that when a corporation seal is affixed to 
 a deed, it is full evidence against the corporation of a title under 
 them, or that it was their deed, and conveyed their title. The 
 words of the report are, 'it is evidence of itself, without witness 
 to prove it;' that is, to prove the deed to be really executed 
 by them, that a major part of the corporation assented to the 
 act; the seal proves it as evidence of the corporate act. The 
 subsequent language is confirmatory to this construction. 'If it 
 is said, that it was put to by the hand of a stranger, this must be 
 proved by the objector.' So that all that is established by this 
 case is, that when a corporation seal is put to an instrument, its 
 execution as a deed of the corporation is sufficiently proved to 
 be given in evidence in an action of ejectment. I have been thus 
 full in my examination of this case, because it has furnished, 
 when stated by Viner in his inaccurate manner, the principal ground 
 on which the counsel for the plaintiff has placed his case. 
 
 "The question now before us is wholly different. It does not 
 turn upon the effect or legal operation of a deed legally proved 
 and admitted in evidence. It is, whether a deed, having a seal 
 which is called the seal of the corporation, ought to have been 
 admitted in evidence, without proving that it actually was what it 
 purported to be? The point determined at the trial was, that such 
 a seal did not prove its own authenticity, but that evidence must 
 be given to shew that it really was the seal of the corporation. It 
 has been usual to allow deeds and other instruments relating to real 
 estate to go to the jury when authenticated under the seals of the 
 cities of London, Edinburgh, or Dublin; . . . this may be owing to 
 the recognition of these corporations by the legislature, or to the diffi- 
 culty of making out the proof of the fact with the necessary precision, 
 or perhaps to the almost utter impossibility of imposing a false or 
 counterfeit for the genuine seal. . . . [But since the reason for 
 
No. 233. AUTHENTICATION OF DOCUMENTS. 219 
 
 recognizing public seals, as given by Gilbert, is their immemorial use 
 and general familiarity] the seals of private Courts or of private per- 
 sons are not evidence of themselves; there must be proof of their cred- 
 ibility. It cannot be presumed that they are universally known, and 
 consequently they must be attested by the oath of some one acquainted 
 with them. Under which description or class of cases does the seal 
 of the Bergen corporation fall? Can it be called a public court or 
 corporation? Has it existed from time immemorial? Are its pro- 
 ceedings and acts sanctioned by the same length of time, and do they 
 stand on the same foundation as the common law? And are they 
 known, and can they be legally presumed to be known by every mem- 
 ber of the community? It does not fall within this description, and 
 its seal is not therefore entitled to xtniversal credit." 
 
 ^^MoDE OF Authenticating when Genuineness Is Not Pre- 
 sumed; Certificates of Attestation; Statutes Presuming Gen- 
 uineness. "Suppose, now, that the seal or signature is one of a 
 kind which does not sufficiently evidence its own genuineness, — 
 a tax-collector in another State, for example. Its genuineness therefore 
 remains to be proved by testimony. The inconvenience of producing 
 a witness who of his knowledge can testify to the genuineness of 
 the seal or signature would be intolerable, and a resort to hearsay 
 testimony in the shape of official statements has long been accepted 
 as proper. But who is the appropriate officer to make such state- 
 ments? Naturally, at common law, that chief officer at the source 
 of executive power, who knows what persons have been appointed 
 and what are their seals or signatures. He must also know their 
 duties, and be authorized to certify to these, because the document, 
 being usually offered as a hearsay statement, must appear to have 
 been made under an official duty. Finally, the certifying officer must 
 himself have such a seal as is presumed genuine, because otherwise 
 the process of certifying would only have to be repeated anew. Such 
 a seal, at common law, would practically be the seal of State only, 
 for foreign officers at least, though for domestic officers it might be 
 one of a lower grade. It will thus be seen that at common law, 
 whenever a seal not itself presumed genuine is to be authenticated 
 otherwise than by testimony on the stand, two distinct rules are always 
 involved in practice, namely, the admissibility of the hearsay certify- 
 ing officer's statement, and the genuineness of his purporting certifi- 
 cate. In other words, two questions must be answered: (i) What 
 higher officer is authorized to certify to the authority of the lower 
 office, the official incumbency of the person exercising it, and the 
 genuineness of the document purporting to be executed by him; and 
 (2) Is this higher officer's purporting certificate to he presumed 
 genuine? The one requirement might be satisfied without the other, 
 
 IS— Quoted from W., § 2162. 
 
220 QUANTITATIVE RULES. No. 233. 
 
 for example, (i) a judge of court might be a proper officer to certify 
 to a clerk's authority to copy the records and to the genuineness of a 
 copy purporting to be by the clerk; but (2) the judge's own pur- 
 porting certificate might not be sufficiently authenticated by his seal 
 if from a foreign State, though it might be from the domestic juris- 
 diction; and resort might further be required to the seal of State, 
 which would be presumed genuine. Now it is the Authentication 
 principle which answers the second question, and the Hearsay excep- 
 tion which answers the first question. 
 
 "The matter is further complicated by the circumstance that most 
 statutes dealing with the subject provide in the same section for both 
 sets of rules, i. e. they not only declare the higher officers authorized 
 to certify to other official documents, but also declare how far up 
 the process must be continued before reaching a seal which will be 
 presumed genuine. For example, they may provide that a city tax- 
 collector's certified copy may be authenticated by the mayor's cer- 
 tificate under city seal, and this in turn by the seal of the governor, 
 or chancellor, or secretary of State under seal of State. Every such 
 statute includes a declaration of the Authentication rule as well as 
 of the rule of the Hearsay exception."^* 
 
 16 — The following English statute is an dence, it shall be admitted if it "purport 
 
 example of the few that keep the two to be sealed or impressed with a stamp, 
 
 principles distinct: 1845, St. 8 & 9 Vict. or sealed and signed, or signed alone, as 
 
 c. 113, § 1. "Whereas it is provided by required, or impressed with a stamp and 
 
 many statutes . . . [that various official signed, as directed by the respective Acts 
 
 documents, corporation proceedings, certi- . . . , without any proof of the seal or 
 
 fied copies, etc., shall be admissible when stamp, where a seal or stamp is necessary, 
 
 duly authenticated], and whereas the bene- or of the signature of the O0icial charac- 
 
 ficial effect of these provisions has been ter of the person appearing to have signed 
 
 found by experience to be greatly dimin- the same, and without any further proof 
 
 ished by the difficulty of proving that the thereof in every case in which the original 
 
 said documents are genuine, and it is ex- record could have been received in evi- 
 
 pedient to facilitate the admission in evi- dence." 
 
 dence of such and the like documents," it Compare the cases and statutes quoted 
 
 is enacted that whenever any certificate, post, Nos. 332-341, where the Hearsay ex- 
 
 official document, etc., is receivable in evi- ception for Official CertHicates is dealt with. 
 
No. 234. BOOK I, PART II. 221 
 
 TITLE II. 
 
 j PREFERENTIAL RULES. 
 
 ^Nature of the Rules. "The nature of the Preferential rules is 
 that they prefer one kind of evidence to another. This they may do 
 in one of two ways: (i) They may require one kind of evidence 
 * to be brought in before any other can be resorted to, and may re- 
 fuse provisionally to listen to the latter until the former is procured or 
 is shown to be inaccessible; or (2) they may prefer one kind of evi- 
 dence absolutely, i. e. they may require its production, and, so long as 
 it is available, consider no other kind of evidence, even after the pre- 
 ferred kind has been supplied. With reference to the kinds of evidence 
 thus preferred, these rules are of the following scope: (A) There is a 
 rule of preference for the inspection of the thing itself, in place of any 
 evidence, either circumstantial or testimonial, about the thing; this 
 is the rule of Primariness, as sometimes termed (treated post, §§ 1177- 
 1282), and concerns itself solely with documents. The preference 
 here is solely of the conditional sort above-named, and not of the ab- 
 solute sort. The questions that here arise are, in general, to what 
 objects this rule of preference applies, under what conditions — ^the 
 object ceasing to be available for production — the preference ceases, 
 and to what exceptions the rule is subject. (B), There is, next, a 
 preference as between various kinds of testimonial evidence. One 
 kind of witness may, for various reasons, be required to be called in 
 preference to another. Here the two kinds of preference, conditional 
 and absolute, are both found, (i) The chief example of the former 
 sort is the rule requiring an attesting witness to be called. Other 
 examples of this kind of rule are sometimes found in requirements 
 that the eye-witnesses to a crime must all be called, or that the 
 owner of stolen goods must be called to prove their loss, or that the 
 alleged writer of a document must be called to identify it. (2) Of 
 the absolute preference of one witness above another, the chief ex- 
 ample is the rule preferring a magistrate's oMcial report of testimony 
 delivered before him. The preference here, when held to be absolute, 
 is so in the sense that this report is not allowed to be shown erro- 
 neous, i. e. the magistrate's report is preferred so as to stand against 
 that of any other person whatever. Another example of such a rule 
 is the preference given to the enrolment of a statute as certified to by 
 the presiding officers of the Legislature, the Governor, and the Secre- 
 tary of State; where this doctrine obtains, these persons' testimony 
 is made to stand against that of any other persons."* 
 
 I — Quoted from W., S 1172. 2 — For the "best evidence" principle, 
 
 see ante, No. 163. 
 
222 PREFERENTIAL RULES. No. 235. 
 
 SUB-TITLE I. 
 
 PRODUCTION OF DOCUMENTARY ORIGINALS. 
 
 A: The Rule Itself. 
 
 DR. LEYFIELD'S CASE (i6ll). 
 IQ Co. Rep. psa. 
 Per Curiam: "It was resolved that the lessee for years 
 in the case at bar ought to shew the letters patent made to the 
 lessee for life. For it is a maxim in the law that ... al- 
 though he who is privy claims but parcel of the original 
 estate, yet he ought to shew the original deed to the Court. And the 
 reason that deeds being so pleaded shall be shewed to the Court is 
 that to every deed two things are requisite and necessary; the one, 
 that it be sufficient in law, and that is called the legal part, because 
 the judgment of that belongs to the judges of the law; the other con- 
 cerns matter of fact, sc. if it be sealed and delivered as a deed, and 
 the trial thereof belongs to the country. And therefore every deed 
 ought to approve itself, and to be proved by others, — approve itself 
 upon its shewing forth to the Court in two manners: i. As to 
 the composition of the words to be sufficient in law, and the Court 
 shall judge that; 2. That it be not razed or interlined in material 
 points or places; ... 3. That it may appear to the Court and to 
 the party if it was upon conditional limitation or power of a revoca- 
 tion in the deed. . . . And these are the reasons of the law that deeds 
 pleaded in court shall be shewed forth to the Court. And therefore 
 it appears that it is dangerous to suffer any who by the law in plead- 
 ing ought to shew the deed itself to the Court, upon the general issue 
 to prove in evidence to a jury by witnesses that there was such a 
 deed, which they have heard and read; or to prove it by a copy; for 
 the viciousness, rasures, or interlineations, or other imperfections in 
 these cases will not appear to the Court, or peradventure the deed 
 may be upon conditional limitation or with power of revocation, and 
 by this way truth and justice and the true reason of the common 
 law would be subverted. . . . Yet in great and notorious extremities, 
 as by casualty of fire, that all his evidences were burnt in his house, 
 there, if that should appear to the Judges, they may, in favor of him 
 who has so great a loss by fire, suffer him upon the general issue to 
 prove the deed in evidence to the jury by witnesses, that affliction be 
 not added to affliction."' 
 
 3 — Read V. Brookman, 3 T. R. 151 by Lord Coke [m Leyfield's Case] ex- 
 
 (1789); a demurrer, to a plea excusing tends to all cases of extreme necessity; 
 
 profert on the ground that it was "lost those which he mentions are only put as 
 
 and destroyed by time and accident," was instances; and wherever a similar neces- 
 
 overruled; Buller, J.: "The rule laid down sity exists, the same rule holds." 
 
No. 237. DOCUMENTARY ORIGINALS. 223 
 
 COMMONWEALTH v. MORRELL (1868.) 
 pp Mass. 542. 
 
 Indictment for robbery. At the trial, a detective officer testified 
 that he and one Jones, his partner, arrested the defendants at Chicago, 
 took possession of their baggage, and detached the tags from 
 their vahses for the purpose of preserving them as evidence. 
 The witness was proceeding to state what was written on the tags 
 so detached by him, when the defendants' counsel objected, claiming 
 that the tags must be produced or shown to be lost before the writ- 
 ing thereon could be given by the witness. 
 
 Chapman, C. J. : "The general rule is most frequently applied 
 to writings, where proof is offered of their contents. The writing 
 itself must be produced. But there are many exceptions as to writ- 
 ings. An inscription on a banner or flag carried about by the leaders 
 of a riot may be proved orally. The King v. Hunt, 3 B. & Aid. 
 566. Or a direction contained on a parcel. Burrell v. North, 2 Car. 
 & K. 679. Or a notice to an indorser of a promissory note. Eagle 
 Bank v. Chapin, 3 Pick. 180. In the present case, the tag referred 
 to was not a document, but an object to be identified. The words 
 written upon it served to identify it; and the court are of opinion 
 that oral evidence was admissible for this purpose, and that it was 
 not necessary to produce the tag. An inspection of the tag with 
 the written direction upon it might have been more satisfactory to 
 the jury than an oral description of it, and therefore might be re- 
 garded as the stronger evidence; but the strength of evidence and 
 the admissibility of evidence are different matters."* 
 
 GATHERCOLE v. MIALL (1846.) 
 
 15 M. & W. 319, 329. 
 
 Action for libel published in a newspaper called "The Noncon- 
 formist," Jan. 7, 1846. A person of the name of Brookes was 
 called, who stated that he was the president of the Chatteris 
 ""' Literary Institution, which consisted of eighty members; that 
 early in January last a number of "The Nonconformist" was brought 
 to the institution, he did not- know by whom, and left there gratuitous- 
 ly; that, about a fortnight afterwards, it was taken (as he sup- 
 posed) out of the subscriber's room without his authority, and was 
 never returned; that he had searched the room for it, but had not 
 found it, and never knew who had it; and that he believed it was 
 
 4 — Compare the authorities cited in W., §§ 1181-1183. 
 
224 PREFERENTIAL RULES. No. 237. 
 
 lost or destroyed. The learned Judge, under these circumstances, held 
 that secondary evidence of the contents of the paper was admis- 
 sible. . . . Sir Thomas Wilde, Serjt., now moved for a new trial, on 
 the ground of the improper reception of evidence, and of misdirection. 
 "First, there was no sufficient evidence of the loss of the paper 
 brought to the Chatteris Literary Institution, to make Brookes' evi- 
 dence of its contents admissible. This was a room frequented only 
 by subscribers of the Institution, limited in number; and it does not 
 appear how many or how few were in the habit of visiting it about 
 that time. Some inquiry should have been made amongst them, or 
 at least from the proprietor of the rooms. It is not like the case of 
 a public coffee-room, to which any number of strangers may resort." 
 Pollock, C. B.-. "The evidence of a document being lost, upon 
 which secondary evidence may be given of its contents, may vary 
 much, according to the nature of the paper itself, the custody it is in, 
 and indeed all the surrounding circumstances of the particular matter 
 before the Court and jury. A paper of considerable importance, 
 which is not likely to be permitted to perish, may call for a much 
 more minute and accurate search than that which may be considered 
 as waste paper, which nobody would be likely to take care of. . . . 
 What inquiry will do? I think, in cases of this sort, if, some time 
 after its publication, a newspaper, which, except occasionally for the 
 purpose of filing, is not very much considered a few days after its 
 publication, is not found in the place where it ought to be, if it be 
 anywhere, no search is necessary among members of the club, or 
 persons who frequent the club-room: it may be taken to be lost, if 
 it cannot be produced from the spot where it ought to be found." 
 Ai.DERSON, B.: "The question whether there has been a loss, and 
 whether there has been sufficient search, must depend very much on 
 the nature of the instrument searched for. ... If we were speaking 
 of an envelope, in which a letter had been received, and a person 
 said, T have searched for it among my papers, I cannot fiind it,' surely 
 that would be sufficient. So with respect to an old newspaper which 
 has been at a public coffee-room; if the party who kept the public 
 coffee-room had searched for it there, where it ought to be if in 
 existence, and where naturally he would find it, and says he supposes 
 it has been taken away by some one, that seems to me to be amply 
 sufficient. If he had said, 'I know it was taken away by A. B.,' then 
 I should have said you ought to go to A. B. and see if A. B. has not 
 got that which it is proved he took away. ... As it seems to me, 
 the proper limit is, where a reasonable person would be satisfied 
 that they had bona fide endeavoured to produce the document itself; 
 and therefore I think it was reasonable to receive parol evidence o£ 
 the contents of this newspaper."" 
 
 S — Compare the authorities cited in W., %% 1194-1195. 
 
No. 238. DOCUMENTARY ORIGINALS. 225 
 
 ATTORNEY-GENERAL v. LE MERCHANT (1773). 
 
 2 T. R. 201. 
 
 Information for the illegal importation of tea. In the course of 
 the trial, the Attorney-General offered to read some letters concerning 
 this tea, which had been sent by the defendant to Channon, a 
 witness for the crown, which letters were proved to have come 
 to the defendant's hands under an order made by the Lord Chan- 
 cellor for the delivery up to him of all papers and letters seized 
 under a commission of bankrupt against Channon, among which were 
 these letters. The solicitor of the excise had contrived to take copies 
 of them whilst they were in the hands of the clerk of the commis- 
 sion; and notice having been given to the defendant to produce the 
 original letters, and that being refused, the Attorney-General offered 
 to read these copies. This" was objected to by the counsel for the 
 defendant, upon the ground principally, that a defendant in a criminal 
 case was never bound to produce evidence against himself; that he 
 was guilty of no crime in not producing them; and that the Attorney- 
 General had no right to call upon him to produce them, or ask a 
 single question concerning them; consequently no copies could be ad- 
 mitted in evidence. But Eyre, Baron, admitted the evidence, though 
 he said he had some doubt about it. . . . 
 
 Smythe, L. C. B. : "First, it was objected, that copies of letters 
 or papers in the hands of the adversary ought not to be read in 
 criminal cases; that was one general objection. And the other, that 
 supposing, for argument's sake, they ought to be admitted, yet in 
 this particular instance the notice which was given was not suf- 
 ficient. As to the first objection, that copies are not admissible in 
 any criminal case, because that would be to oblige a man to produce 
 evidence against himself; in answer to it, I do not recollect that 
 they have produced any one case to show any difference at all as to 
 the rule of evidence in criminal, and in civil cases ; therefore the rule 
 of evidence in both cases is the same, that ks, to have the best evi- 
 dence that is in the power of the party to produce, which means that, 
 if the original can possibly be had, it shall be required, but if that 
 original be destroyed, or if it be in the hands of the opposite party 
 who will not produce it, then in case of a deed, a counter one, or 
 sometimes a copy of the deed, or copy of the paper, is evidence 
 to be admitted. ... It was likewise said, in support of the 
 motion, that the reason why copies are permitted to be 
 evidence in common cases is because the party who has them in 
 his custody, and does not produce them, is in some fault for not 
 producing them; it is considered as a misbehavior in him in not 
 producing them, and therefore in criminal cases a man who does 
 not produce them is in no fault at all, and for that reason a copy is 
 not admitted. But I do not take that to be the rule; it is not founded 
 
226 PREFERENTIAL RULES. No. 238. 
 
 upon any misbehavior of the party, or considering him in fault; but 
 the rule is this: the copies are admitted when the originals are in 
 the adversary's hands for the same reason as when the originals are 
 lost by accident; the reason is because the party has not the originals 
 to produce. . . . Another objection has been made that this notice 
 is not sufficient; the answer is, I know no difference between the 
 rule of evidence in civil and criminal cases. Then, if there be no 
 such difference, the rule which has always been followed and allowed 
 in civil cases is that notice be given to the attorney or agent 
 of the adverse party. Now in this case, without going minutely into 
 the consideration, whether the notice was proved to the defendant 
 himself, and was good, here is unquestionable notice proved to Sayer 
 who is the agent and solicitor of Le Merchant, into whose hands it 
 appears that these letters had actually been delivered; and then there 
 is a notice likewise to Davy, who is the attorney for the defendant 
 in this very cause, and no attempt was made on the part of the de- 
 fendant to prove what was become of these letters, or that it was 
 not in his power to produce them."* 
 
 DWYER V. COLLINS (1852). 
 ;' Exch. 6^p. 
 
 Action by the indorsee against the acceptor of a bill of exchange; 
 to which the defendant pleaded, inter alia, that the bill was given 
 for a gaming debt. On the trial, before the Lord Chief Baron, 
 the defendant proceeded to prove his plea; and for that purpose 
 gave evidence of the gaming, and swore that the only bill he ever 
 gave to the drawer of the bill which was declared on, was by way 
 of payment of the debt then incurred. The defendant's counsel, 
 being required to prove that the identical bill declared upon was 
 that which was given on that occasion, called for the bill, which the 
 plaintiff's counsel declined to produce. The plaintiff's attorney hav- 
 ing admitted that the bill was in his possession and in court, the de- 
 fendant's counsel called for its production; which being refused, he 
 then offered to give secondary evidence of its contents. The plain- 
 tiff's counsel objected that there ought to have been a previous notice 
 to produce; and the Lord Chief Baron, after consulting the judges, 
 ruled in favor of the defendants. 
 
 Parke, B. : "The next question is whether, the bill being ad- 
 mitted to be in court, parol evidence was admissible on its non-pro- 
 duction, or whether a previous notice to produce was necessary. On 
 principle, the answer must depend on the reason why notice to pro- 
 duce is required. If it be to give his opponent notice that such a 
 document will be used by a party to the cause, so that he may be 
 enabled to prepare evidence to explain or confirm it, then no doubt a 
 
 6 — Compare the authorities cited in W., §§ 1199-1201. 
 
No. 240. DOCUMENTARY ORIGINALS. 227 
 
 notice at the trial, though the document be in court, is too late. But 
 if it be merely to enable the party to have the document in court, to 
 produce it if he likes, and if he does not, to enable the opponent to 
 give parol evidence, — if it be merely to exclude the argument that 
 the opponent has not taken all reasonable means to procure the 
 original (which he must do before he can be permitted to make use 
 of secondary evidence), then the demand of production at the trial is 
 sufficient. ... If this [the former] be the true reason, the measure of 
 the reasonable length of notice would not be the time necessary to 
 procure the document — a comparatively simple inquiry — , but the time 
 necessary to procure evidence to explain or support it, — a very com- 
 plicated one, depending on the nature of the plaintiff's case and 
 the document itself and its bearing on the cause; and in practice 
 such matters have never been inquired into, but only the time with 
 reference to the custody of the document and the residence and con- 
 venience of the party to whom notice has been given, and the like. 
 We think the plaintiff's alleged principle is not the true one on 
 which notice to produce is required, but that it is merely to give a 
 sufficient opportunity to the opposite party. to produce it and thereby 
 secure if he pleases the best evidence of the contents; and a request 
 to produce immediately is quite sufficient for that purpose, if it be 
 in court. ... It would be some scandal to the administration of the 
 law if the plaintiff's objection had prevailed."' 
 
 UNITED STATES v. DOEBLER (1832). 
 
 Baldw. §ip, 524, 25 Fed. Cos. 88j. 
 
 Indictment for forging a bank-note. After evidence of the forg- 
 ing of the note in question, one Empich was examined, who proved 
 that at the Lancaster races, at the time testified by Rallston, the 
 defendant delivered him a 20 dollar note, stating that it was not 
 good, and requested the witness to play it off at a faro table, which he 
 did not do, but after some time returned it to the defendant. Mr. Gilpin, 
 after stating that this note was not the subject of any indictment, 
 but that the evidence in relation to it was offered to prove the scienter 
 as to . the notes charged in the indictment, asked the witness to de- 
 scribe the 20 dollar note, as to the bank, &c., it was on, which was 
 objected to, on the ground that this was matter collateral to the in- 
 dictment, of which notice ought to have been given to the defendant, 
 
 7 — Alderson, B., in Lawrence v. Clark, is sufficient in one case may not be so in 
 
 14 M. & W. 250, 253 (1845): "All these another; and much therefore must be left 
 
 cases depend on their particular circum- to the discretion of the presiding judge, 
 
 stances; and the question in each case is subject of course to correction by the 
 
 whether the notice was given in reason- Court." 
 
 able time to enable the plaintiff to be Compare the authorities cited in W., 
 
 prepared to produce the document at the §§ 1202-1204. 
 time of the trial"; Pollock, C. B.: "What 
 
228 PREFERENTIAL RULES. No. 240. 
 
 and that it was not evidence of the scienter, because the delivery of 
 the note to Empich was subsequent to the delivery of the note which 
 was the subject matter of the indictment, and the question was 
 elaborately argued. 
 
 Baldwin, J.: "... As the intention ana knowledge with which 
 the act is done, constitute the crime, it may be made out by evidence 
 of other acts of a similar kind with that charged in the indictment. 
 This being the well settled and well known rule in such cases, the 
 prisoner cannot be taken by surprise; when such evidence is offered, 
 he must come prepared to meet not only the evidence which applies 
 directly to the specific act charged, but all other acts which, accord- 
 ing to the known rules of evidence, a prosecutor may adduce to prove 
 the act charged. If the note he is charged with forging, passing, 
 or delivering, is of the same kind with others which he has disposed 
 of or retained in his possession, he has notice in effect that, if prac- 
 ticable to procure it, evidence will be given of their counterfeit char- 
 acter, and of his having passed them as true. It is notice in law, by 
 which a party is as much bound both in civil and in criminal cases as 
 by notice in effect. Notice in fact is notice in form; notice in law 
 is notice in effect; and either are sufficient. . . . Knowing that proof 
 of all these facts is as competent to the prosecutor as the one specific- 
 ally charged, no injustice is done him."* 
 
 Chief Baron Gilbert, Evidence, 7 {ante 1726) : "Records, being 
 the precedents of the demonstrations of justice, to which every man 
 has a common right to have recourse, cannot be transferred 
 place to place to serve a private purpose; and therefore they 
 have a common repository, from whence they ought not to be re- 
 moved but by the authority of some other Court; and this is in the 
 treasury of Westminster. And this piece of law is plainly agreeable 
 to all manner of reason and justice; for if one man might demand a 
 record to serve his own occasions, by the same reason any other 
 person might demand it; but both could not possibly possess it at the 
 same time in different places, and therefore it must be kept in one 
 certain place in common for them both. Besides, these records, by 
 teing daily removed, would be in great danger of being lost. And 
 consequently; it is on all hands convenient that these monuments of 
 justice should be fixed in a certain place, and that they should not 
 te transferred from thence but by public authority from superior 
 justice. The copies of records must be allowed in evidence, for . . . 
 the rule of evidence commands no farther than to produce the best 
 that the nature of the thing is capable of; for to tie men up to the 
 original that is fixed to a place, and cannot be had, is to totally dis- 
 card their evidence, . . . for then the rules of law and right would be 
 the authors of injury, which is the highest absurdity."^ 
 
 8 — Compare the authorities cited in W., 9 — Ellenborough, L. C. J., in Hennell V. 
 
 51205. Lyon, I B. & Aid. 182, 184 (1817): "The 
 
No. 242. DOCUMENTARY ORIGINALS. 229 
 
 DOE dem. PATTERSON v. WINN (1831). 
 5 Pet. 233, 241. 
 
 Ejectment to recover a tract of land of 7,300 acres, lying in that 
 part of the county of Gwinnett, which was formerly a portion of 
 Franklin county. On the trial at Milledgeville, at November 
 *'^ term 1829, the plaintiff offered in evidence the copy of a grant 
 or patent from the state of Georgia to Basil Jones, for the land in 
 question, duly certified from the original record or register of grants 
 in the secretary of state's office, and attested under the great seal of 
 the state. To the admissibility of this evidence, the defendants by 
 their counsel objected, on the ground that the said exemplification 
 could not be received until the original grant or patent was proved to 
 be lost or destroyed, or the non-production thereof otherwise legally 
 explained or accounted for, according to a rule of the court. This ob- 
 jection the Circuit Court sustained, and rejected the evidence. 
 
 Story, J.: "We think it clear that by the common law, as held 
 for a long period, an exemplification of a public grant under the 
 Great Seal is admissible in evidence, as being record proof of as 
 high a nature as the original. . . . There was in former times a tech- 
 nical distinction existing on this subject which deserves notice. As 
 evidence, such exemplification of letters patent seem to have been 
 generally deemed admissible. But where, in pleading, a profert was 
 made of letters patent, there, upon the principles of pleading, the origi- 
 nal under the Great Seal was required to be produced, for a profert 
 could not be made of any copy or exemplification. It was to cure this 
 difficulty that the statutes of 3 Edw. VI, c. 4, and 13 Eliz. c. 6, were 
 passed, by which patentees and all claiming under them were enabled 
 to make title in pleading by showing forth an exemplification of the 
 letters patent as if the original were pleaded and set forth. These stat- 
 utes, being passed before the emigration of our ancestors, being applica- 
 ble to our situation, and in amendment of the law, constitute a part of 
 our common law. A similar effect was given by the statute of 10 
 Anne, c. 18, to copies of deeds of bargain and sale, enrolled under the 
 
 admission of copies in evidence is founded ments might be wanted at different places 
 
 upon a principle of great public con- at the same time." 
 
 venience, in order that documents of great Alderson, B., in Mortimer v. McCallan, 
 moment should not be ambulatory, and 6 M. & W. 58, 67 (1840): "[If docu- 
 subject to the loss that would be incurred ments] are not removable, on the ground 
 if they were removable. The same has of public inconvenience, that is upon the 
 been laid down in respect of proceedings same footing in point of principle as in 
 in courts, not of record, copies whereof the case of that which is not removable 
 are admitted, though not strictly of a pub- by the physical nature of the thing itself. 
 lie nature"; Abbott, J.: "It is a general . . . The necessity of the case in the one 
 principle that copies are receivable in such instance, and in the other case the gen- 
 cases without the originals, from the great eral public inconvenience which would fol- 
 inconvenience which would result if the low from the books being removed, sup- 
 documents were taken to different places. plies the reason of the rule." 
 There would have been a danger of loss Compare authorities cited in W., §§ i2I4i 
 from such a practice, and besides, the docu- 1215, 1218. 
 
230 PREFERENTIAL RULES. No. 242. 
 
 statute of Henry VIII, when offered by way of profert in pleading; 
 and since that period a copy of the enrolment of a bargain and sale 
 is held as good evidence as the original itself. Such, then, being the 
 rule of evidence of the common law in regard to exemplifications 
 under the Great Seal of public grants, the application of it to the 
 case now at bar will be at once perceived, since by the laws of 
 Georgia all public grants are required to be recorded in the proper 
 State department." 
 
 Johnson, J., dissenting: "If it is the correct sense of the common 
 law that the exemplification of a patent is as good evidence as the 
 patent itself, I am yet to be made acquainted with the authority that 
 sustains the doctrine. I am sure that Page's case (5 Coke), com- 
 monly cited as the leading case in its support, establishes no such 
 principle. It relies expressly on the British statutes for the sufficiency 
 of the exemplification of the patent and the right to use it in the 
 profert. . . . Were it generally true as laid down, that at common 
 law the copy of the grant was equal in dignity as evidence to the 
 original, still, unless so recognized in Georgia, it is not the law of 
 Georgia. Now, to say nothing of my own 'lucubrationes viginti an- 
 norum,' there is not a professional man in Georgia who does not 
 know that such has never been the rule of judicial practice in that 
 state. ... I make no doubt that there are at this moment thousands 
 of grants lying unclaimed in the land office, every one of which has 
 been copied into the register. The truth is, the grant is a separate 
 thing, from the true original; and the facsimile of it (if it may be so 
 called in the register,) is nothing more than a copy; so that the 
 paper here dignified with the epi.thet of an exemplification is nothing 
 more than a copy of a copy^ and therefore always considered in 
 practice as evidence of an inferior order. The courts of that state 
 have latterly relaxed in requiring evidence of loss; but even at this 
 day, such evidence cannot be received in any of their courts, without 
 an affidavit from the party presenting it, of his belief in the loss or 
 destruction of the original." 
 
 COMMONWEALTH v. EMERY (1854). 
 
 2 Gray 80. 
 
 The defendant was tried on the charge of Being a common seller 
 of intoxicating liquors. The district attorney, in order to prove that 
 the house was owned by the defendant, and that the business 
 carried on there was his, offered a paper purporting to be a 
 registry copy of a deed of the premises to the defendant, certified by 
 the register of deeds for this county. The defendant objected to 
 the admission of the copy of the deed as evidence, for the reason 
 that he had had no notice to produce the original deed; but Perkins, J.^ 
 overruled the objection. 
 
wo. Z4:4. DOCUMENTARY ORIGINALS. Z61 
 
 Shaw, C. J. : "Upon consideration, the court are of opinion that 
 this copy of a deed ought not to have been admitted, without notice 
 to the defendant to produce the original. The rule, as to the use of 
 deeds as evidence, in this Commonwealth, is founded partly on the 
 rules of the common law, but modified, to some extent, by the registry 
 system established here by statute. The theory is this: ... In all 
 cases original deeds should be required if they can be had; but as this 
 would be burdensome and expensive, if not impossible In many cases, 
 some relaxation of this rule was necessary for practical purposes. . . . 
 Our system of conveyancing, modified by the registry law, is that 
 each grantee retains the deed made immediately to himself, to enable 
 him to make good his warranties. Succeeding grantees do not, as a 
 matter of course, take possession of deeds made to preceding parties 
 so as to be able to prove a chain of title by a series of original deeds. 
 Every grantee, therefore, is the keeper of his own deed, and of his 
 own deed only. . . . When, then, he has occasion to prove any fact 
 by such deed, he cannot use a copy, because it would be offering 
 inferior evidence: when in theory of law a superior is in his posses- 
 sion or power ; it is only on proof of the loss of the original, in such 
 case, that any secondary evidence can be received. ... In cases, 
 therefore, in which the original, in theory of law, is not in the custody 
 or power of the party having occasion to use it, the certified oflSce 
 copy is prima facie evidence of the original and its execution, sub- 
 ject to be controlled by rebutting evidence. But as this arises from 
 the consideration, that the original is not in the power of the party 
 relying on it, the rule does not apply where such original is, in theory 
 of law, in possession of the adverse party; because upon notice the 
 adverse party is bound to produce it, or put himself in such position 
 that any secondary evidence may be given."^ 
 
 Statutes. California: C. C. P. 1872, § 1951, as amended March 
 24, 1874; a certified copy of a duly recorded instrument affecting 
 realty "may also be read in evidence with the like effect as 
 *** the original, on proof, by aflidavit or otherwise, that the original 
 is not in the possession or under the control of the party producing 
 the certified copy;" amended March i, 1889, so as to read: "be read 
 in evidence with the like effect as the original instrument without 
 further proof." 
 
 Illinois: Rev. St. 1874, c. 30, § 35: "If it shall appear to the 
 satisfaction of the Court that the original deed so acknowledged or 
 proved and recorded, is lost, or not in the power of the party wish- 
 ing to use it," a certified copy is admissible. lb., § 36 : "Whenever 
 upon the trial of any cause at law or in equity in this State, any 
 party to said cause, or his agent or attorney in his behalf, shall,, 
 orally in Court, or by affidavit to be filed in said cause, testify and 
 
 I — Compare the authorities cited in W., §§ 1224, 1225. 
 
232 PREFERENTIAL RULES. No. 244. 
 
 State under oath that the original" of any instrument affecting land, 
 duly recorded, "is lost or not in the power of the party wishing to use 
 it on the trial of said cause, and that to the best of his knowledge 
 said original deed was not intentionally destroyed or in any manner 
 disposed of for the purpose of introducing a copy thereof in place 
 of the original," the record or recorder's certified copy is admissible." 
 
 New York : C. C. P. 1877, § 935 : "A conveyance, acknowledged or 
 proved, and certified, in the manner prescribed by law, to entitle it to be 
 recorded in the county where it is offered, is evidence, without further 
 proof thereof. Except as otherwise specially prescribed by law, the 
 record of a conveyance, duly recorded, within the state, or a transcript 
 thereof, duly certified, is evidence, with like effect as the original con- 
 veyance." 
 
 Ibid., § 947 : "An exemplification of the record of a conveyance of real 
 property situated without the state, and within the United States, which 
 has been recorded in the state or territory, where the real property is 
 situated, pursuant to the laws thereof, when certified under the hand and 
 seal of the officer, having the custody of the record is, if the original 
 cannot be produced, presumotive evidence of the conveyance, and of the 
 due execution thereof." 
 
 REX v. WATSON (1817). 
 2 Stark 116. 
 High treason. It appeared that on the 26th of November a person 
 of the name of Castle took a manuscript to Scale, a printer, in order 
 that he might print 500 large copies for placards and 4,000 
 small ones, advertising a meeting at Spa Fields on the 2d of 
 December, and that the prisoner Watson afterwards called upon him, 
 Seale, and took away 25 of the large placards. Seale upon the trial 
 produced one of the large ones, and another witness was afterward 
 asked whether similar placards had not been posted upon the walls 
 of the metropolis. It was objected for the prisoner, that no evidence 
 of the contents could be received without notice to the prisoner to 
 produce the original manuscript; that the original ought either to be 
 produced, or proved to be destroyed, or in the possession of the 
 prisoner; that notice must be proved to have been given to him to 
 produce it before secondary evidence could be received; that all the 
 printed placards were to be considered as copies, and not as originals; 
 and that it by no means followed that all were alike because all were 
 printed. And the case was assimilated to that of Nodin v. Murray, 3 
 Camp. 228, which was tried before Lord Ellenborough, where his 
 Lordship held that a copy of a letter piroved to have been taken by a 
 letter-copying machine, and which was therefore necessarily a true 
 copy, could not be received in evidence without notice to produce the 
 original. It was also urged that notice ought to have been given to 
 produce the 25 copies which had been taken away by the prisoner. 
 
No. 246. DOCUMENTARY ORIGINALS. 233 
 
 Ellenborough, L. C. J.: "An order having been given to print 
 500 copies, Watson fetched away 25; by this he adopted the printing 
 as done in the execution of an order which he had given; and when 
 he took away 25 out of a common impression, they must be supposed 
 to agree in the contents." Bayley, J.: "The objection is, that without 
 notice to produce the original any other evidence of the contents is 
 but secondary evidence. It appears to me that that is not the case, 
 for that every one of those worked off are originals, in the nature 
 of duplicate originals; and it is clear that one duplicate may be given 
 in evidence, without notice to produce the other. If the placard were 
 offered in evidence in order to show the contents of the original 
 manuscript, there would be great weight in the objection; but when 
 they are printed they all become originals ; the manuscript is dis- 
 charged; and since it appears that they are from the same press, they 
 must all be the same." Abbott, J.: "If this paper were offered in 
 order to show what were the contents of the original manuscript, it 
 might be contended that sufficient preparatory evidence had not been 
 given; but in another point of view it appears to me that the evi- 
 dence is admissible, in order to prove that Mr. Watson knew the 
 contents of a placard posted in the streets, relating to a meeting in 
 Spa Fields, on the 2d of December."^ 
 
 NICKERSON V. SPINDELL (1895). 
 
 164 Mass. 25, 41 N. E. 105. 
 
 Action for expenses incurred and services rendered in superin- 
 tending the building of a steamer at the request of the defendant 
 Spindell, managing agent of the owners. The plaintiff's wife, 
 "* called as a witness for the plaintiff, testified that her husband 
 had received numerous telegrams from Spindell to him, which had 
 been destroyed. The plaintiff then offered secondary evidence of the 
 contents of these telegrams. The defendants objected, on the ground 
 that the originals of the telegraphic messages were the messages as 
 delivered to the telegraph company. The judge ruled that, where 
 the sender of a telegram takes the initiative, as between him and 
 
 2 — Ellenborough, L. C. J., in Philipson satisfactory evidence of the contents of 
 V. Chase, 2 Camp. 110 (1809): "If there the other part than any other draft or 
 are two cotemporary writings, the coun- copy. It is prepared with more care than 
 terparts of each other, one of which is any other copy, and the party who pro- 
 delivered to the opposite party, and the duces it, and against whom it is used, by 
 other* preserved, as they may both be con- taking and keeping it as a part of the 
 sidered as originals, and they have equal deed, admits its accuracy. The Courts 
 claims to authenticity, the one which is have therefore always required that if one 
 preserved may be received in evidence, part of a deed be lost, and another part 
 without notice to produce the one which be in existence, it must be produced"; 
 was delivered." but . . . "merely as secondary evidence of 
 
 Best, C. J., in Munn v. Godbold, 3 the part that was lost." 
 Bing. 292 (1825): "When there are two Compare the authorities cited in W., 
 
 instruments executed as parts of a deed, §§ 1234, 1237. 
 one of these parts is more authentic and 
 
234 PREFERENTIAL RULES. No. 246. 
 
 the person to whom it is sent the original is the message as deliv- 
 ered to that person, and that, on a proper foundation being laid, sec- 
 ondary evidence of the contents of the telegrams was admissible; and, 
 having found that the absence of the telegrams as delivered to the 
 plaintiff was accounted for, allowed the witness to testify as to their 
 contents. Against the objection of the defendants and their excep- 
 tions thereto, she testified that the telegrams contained requests from 
 Spindell to her husband to meet him at a certain place. There was 
 evidence tending to show that the telegrams were sent by Spindell. 
 
 Knowlton, J.: "When the sender of a telegraphic message takes 
 the initiative, the message as delivered may, as between him and the 
 person to whom it is sent, be treated as the original, in the absence 
 of evidence to show mistake in the transmission of it. Whether we 
 should go further, and hold that the telegraphic company is so far 
 the agent of the sender as to bind him by their errors in sending it, 
 it is unnecessary in this case to decide. There is much authority in 
 support of this last proposition, although the contrary has been held 
 in England. There was no error in the admission of the testimony."* 
 
 DOE V. HARVEY (1832). 
 
 I Moo. & Sc. 374. 
 
 TiNDAL, C. J.: "This was an action of trespass for the mesne 
 profits. Upon the trial it was proved that Harvey, the defendant, had 
 occupied the premises in question from May, 1829, to May, 
 ^*' 1830. The plaintiff offered in evidence a judgment in an action 
 of ejectment brought for the same premises by the present plaintiff 
 against one Payne. The only evidence that was given as to the origin 
 or nature of Harvey's occupation was, that one Henry Payne, the son 
 of the defendant in the ejectment, had put him into possession. But, 
 as it appeared from the same witness that he had been put into pos- 
 session under a written agreement, which agreement was not pro- 
 duced, the parol evidence of Henry Payne, as to the landlord under 
 whom he held, or the terms under which he was let into possession, 
 was deemed insufficient for that purpose. ... If nothing had been in 
 issue but the single fact whether Harvey held or occupied the land, 
 such fact might undoubtedly be proved by the payment of rent, decla- 
 rations of the tenant, or other parol evidence sufficient to establish it, 
 notwithstanding it appeared that he held under an agreement in writ- 
 ing. Authorities to this effect were cited in argument at the bar. 
 But here, the question was, not merely whether Harvey held the 
 premises, but whether he held them as tenant to Payne; and of this 
 fact there was no other evidence admissible than the written agree- 
 ment; which was not produced." 
 
 3 — Compare the authorities cited in W., 5 1236. 
 
No. 249. DOCUMENTARY ORIGINALS. 235 
 
 LAMB V. MOBERLY (1826). 
 
 3 T. B. Monr. //p. 
 
 Mills, J.: 'The plaintiff in the court below, sued the defendant, 
 in an action of assumpsit, for so much money for a note made by a 
 third person, and sold and delivered by the plaintiff to the 
 defendant. On the trial of the issue of non assumpsit, the 
 plaintiff introduced the confessions of the defendant that he had 
 bought such a note, and had promised to pay a certain sum therefor, 
 at a period, or rather on a contingency which had happened, sub- 
 stantially agreeing with some of the counts in the declaration. The 
 counsel for defendant moved the Court to exclude that evidence, 
 until the plaintiff should produce the note itself as the best evidence. 
 The Court sustained this motion. We cannot agree with the Court 
 below . . . that the production of the note was necessary. It could 
 xjnly be held necessary by not attending to the distinction between 
 proving the existence and contents of a note and the sale of a note. 
 Of the former, the note is the better evidence; but of the latter the 
 note furnishes no evidence. . . . The existence of a note is as cer- 
 tainly perceived by the senses or acknowledged in conversation as that 
 of any other article of commerce; and it might as well be urged that 
 before the acknowledgments of a sale of any other article could be 
 given in evidence the article itself must be produced in court in order 
 that the Court might see that it really existed, as that a note thus 
 sold should be produced."* 
 
 TILTON V. BEECHER (1875). 
 
 Ahbotfs Rep. (AT. Y.) I, 389. 
 
 Witness for plaintiff: "[Mr. Tilton had written the story of the 
 whole affair for publication and wanted Mr. Beecher to hear it before 
 publication,] and Mr. Tilton said to Mr. Beecher, T will read 
 ^^" to you one passage from this statement, and if you can stand 
 that, you can stand any part of it,' and he read to him a passage from 
 the statement, which was about as follows as nearly as I can recol- 
 lect." Mr. Evarts, for defendant: "The statement will speak for it- 
 self." Mr. Fullerton, for plaintiff: "What did he read?" Mr. Evarts: 
 ^'We want that paper and the part of it that was read, as it appeared 
 in that paper, and it is not competent to recite out of a written paper 
 by oral proposition what the written paper is the best evidence of." 
 Mr. Fullerton: "I propose to show what communication was made by 
 Mr. Tilton on that occasion to Mr. Beecher; I do not care whether 
 it originated in his own mind, or whether it was read from a paper, 
 printed or written; it makes no difference; what it was that he baid 
 
 4 — Compare the authorities cited in W., 5§ 1245-1248. 
 
236 PREFERENTIAL RULES. No. 249. 
 
 to him is what I have a right to". Judge Neilson: "I think the wit- 
 ness can state what was said to Mr. Beecher, although he stated mat- 
 ter that had been incorporated in writing."" 
 
 (B) EXCEPTIONS TO THE RULE. 
 
 COLE V. GIBSON (1750). 
 / Ves. Sr. 503. 
 
 In 1733 on a treaty of marriage between Philip Bennet and Miss 
 Hallam, then about twenty years old, articles were entered into, to 
 which were made parties the intended husband and wife, the 
 ^*" defendant and Mr. Ralph Allen. The first clause therein was 
 for securing an annuity of £100 to the defendant out of the wife's 
 estate: but every other provision therein for benefit of the wife and 
 issue of the marriage was made revocable by the wife, after the 
 marriage should be had. About the same time with the articles, a 
 bond was given by Mr. Bennet before the marriage to pay the defend- 
 ant £1000, which bond was afterward delivered up to be canceled; 
 but at what particular time did not appear. A recovery was afterward 
 suffered to the uses of the articles. In 1736 a new grant was made 
 to the defendant of this annuity; which was continued to be paid for 
 some time after the wife's death: but the present bill was now brought 
 to set it aside. Evidence for the plaintiff to prove the contents of 
 the bond, was objected to, as never done unless where the instrument 
 itself cannot be had: whereas it appeared from the answer read, that 
 the bond was delivered up to plaintiff, and must be in his custody. 
 For plaintiff. This bill is not to be relieved against the bond; for 
 then the objection would be good; but here it is made use of as col-' 
 lateral evidence, as being part of the transaction, and to prove that 
 it was on account of the marriage, and on no other consideration. 
 
 Hakdwicke, L. C. J.: 'The plaintiff has read, what is made evi- 
 dence out of the answer, that the bond was executed, and that the 
 defendant delivered it up to the plaintiff: which is evidence that it is 
 in plaintiff's custody, and to prove the contents it must be produced. . . . 
 A distinction is endeavored between a bill to set aside the bond or 
 other instrument, and a case wherein it is made use of only by col- 
 lateral evidence; but there is no such distinction in point of evidence, 
 
 5 — EUenborough, L. C. J., in Smith v. the conversion. If the verbal demand had 
 
 Yovng, I Camp. 439 (i8o8); proof of a any reference to the writing, to be sure the 
 
 demand, in an action of trover, was oral, writing must be produced; but if they 
 
 the witness stating that he had both orally were concurrent and independent, I do 
 
 demanded and also in writing served no- not see how adding the latter could su- 
 
 tice: "I may do an act of this sort doubly. persede the former or vary the mode of 
 
 I may make a demand in words and a proceeding." 
 
 demand in writing; and both being per- Compare the authorities cited in W., §1 
 
 feet, either may be proved as evidence of 1243, 1249, and Nos. 554-57, post. 
 
No. 251. DOCUMENTARY ORIGINALS. 237 
 
 the rule being the same whether it comes in by way of collateral evidence, 
 or the very deed which the bill is brought to impeach." 
 
 MASSEY V. FARMER'S NATIONAL BANK (1885). 
 
 113 III. 334, 338. 
 
 MuLKEY, J.: "The action below was upon a promissory note pur- 
 porting to have been executed by Henry C. Massey, Henderson E. 
 Massey and George W. Laurie. . . . The note was given for 
 ^"^ money borrowed from the bank by Henry C. Massey. The ap- 
 pellant filed a plea, verified by affidavit, denying the execution of the 
 note, and the cause was tried upon that issue, alone. . . . The point 
 which seems to be chiefly relied on, arises upon a motion to suppress 
 part of the answer to the following interrogatory: 'You may state 
 whether the note' (referring to the one sued on) 'was a renewal note.' 
 Objection being made, unless the note was produced, the witness then, 
 as we understand the record, produced it, and proceeded first to read 
 the credits indorsed on it, the whole answer being as follows : 'Paid, 
 July 25, 1879, $275 and interest on note to date. Paid August 5, 1879, 
 $1782.75 and interest on note to date. That $1782.75 my father 
 owed, — that is, he gave me a deed to one hundred acres of land in 
 1866; told me to go to work on it, and improve it, and suit myself,' 
 (objection by defendant,) 'but had never given me a deed, and after 
 he received notice from the bank in 1879, he goes to Jacksonville and 
 deeds this one hundred acres of land away from me, with the excep- 
 tion of forty acres where the house and barn stand, and said to me 
 and told me to give him a mortgage for $3000, and he would enable 
 me to get a loan of $2000 on it, to pay upon this note. He did that. 
 / had to give him a mortgage for $3000, while I never owed him a 
 dollar in the world. He did that to fix the bank so they couldn't get 
 anything off of me, and he was going to put his property out of his 
 hands, to avoid this note.' . . [The general principle] has no applica- 
 tion to the facts above stated. We fully recognize the rtile that when- 
 ever the existence of a deed or other writing is directly involved in 
 a judicial proceeding, whether as proof of the precise question in 
 issue or of some subordinate matter that tends to establish the ulti- 
 mate fact or facts upon which the case turns, such deed or other 
 writing itself must be produced, or its absence accounted for, before 
 secondary evidence of its contents is admissible. Yet while this rule 
 is fully conceded, it is also true that a witness, when testifying, may, 
 for the purpose of making his statements intelligible, and giving co- 
 herence to such of them as are unquestionably admissible in evidence, 
 properly speak of the execution of deeds, the giving of receipts, the 
 writing of a letter, and the like, without producing the instrument or 
 writing referred to. To hold otherwise would certainly be productive 
 of great inconvenience, and in some cases would defeat the ends of 
 
238 PREFERENTIAL RULES. No. 251. 
 
 justice. References to written instruments by a witness for the pur- 
 pose stated are to be regarded as but mere inducement to the more 
 material parts of his testimony. The present case well illustrates the 
 principle in question. As remotely bearing upon the issue to be tried, 
 the plaintiff sought to show the appellant had avowed a purpose not 
 to pay the note — that he had said he was going to put his property 
 out of his hands in order to defeat the claim. Now this, under the 
 issue, is the important part of the answer to the question ['whether 
 the note was a renewal note'], if indeed any of it can be so regarded. 
 All, therefore, that was said about the deeding of the land, the giving 
 of the mortgage, and getting the loan of $2,000, we regard as mere 
 matter of inducement to the more important part of the testimony."* 
 
 SLATTERIE v. POOLEY (1840). 
 6 M. &■ W. 664. 
 
 Action on a covenant to indemnify the plaintiff against debts sched- 
 uled in a composition-deed and due to creditors not signing it; plea, 
 that the debt in question was not contained in the schedule. 
 ^" At the trial, the composition deed and schedule were produced 
 in evidence for the plaintiff; but the latter, not being duly stamped, 
 was rejected; whereupon the plaintiff's counsel tendered in evidence 
 a verbal admission by the defendant that the debt mentioned in the 
 declaration was the same with one entered in the schedule. This 
 evidence was objected to, on the ground that the contents of a writ- 
 ten instrument, which was itself inadmissible for want of a proper 
 stamp, could not be proved by parol evidence of any kind; and the 
 learned judge being of that opinion, the plaintiff was nonsuited. 
 
 Parke, B. : "If such evidence were inadmissible, the difficulties 
 thrown in the way of every trial would be nearly insuperable. The 
 reason why such parol statements are admissible, ... is that they are 
 not open to the same objection which belongs to parol evidence from 
 other sources, where the written evidence might have been produced; 
 for such evidence is excluded from the presumption of its untruth 
 arising from the very nature of the case where better evidence is with- 
 held; whereas what a party himself admits to be true may reasonably 
 be presumed to be so. The weight and value of such testimony is 
 quite another question." Abinger, L. C. B., "concurred in what was 
 said by Parke, B. ; and stated that he had always considered it as 
 clear law, that a party's own statements were in all cases admissible 
 against himself, whether they corroborate the contents of a written 
 instrument or not."^ 
 
 6 — Compare the authorities cited in W., Parke, B., in that case. . . . The doctrine 
 
 §§ T253, 1254. there laid down is a most dangerous prop- 
 
 7 — Pennefather, C. J., in Lawless v. osition. By it a man might be deprived 
 
 Queale, 8 Ir. L. R. 382, 385 (1845): "I of an estate £10,000 per annum, derived 
 
 cannot subscribe to what was said by from his ancestors by regular family deeds 
 
No. 253. DOCUMENTARY ORIGINALS, 239 
 
 THE QUEEN'S CASE (1820). 
 
 2 B. & B. 286. 
 
 Bill for divorce on the ground of adultery and improper conduct; 
 the House of Lords put the following questions to the Judges: "First, 
 whether, in the courts below, a party on cross-examination 
 would be allowed to represent in the statement of a question 
 the contents of a letter, and to ask the witness whether the witness 
 wrote a letter to any person with such contents, or contents to the 
 like effect, without having first shown to the witness the letter, and 
 having asked that witness whether the witness wrote that letter and 
 his admitting that he wrote such letter? . . .v Thirdly, whether, when 
 a witness is cross-examined and, upon the production of a letter to 
 the witness under cross-examination, the witness admits that he wrote 
 that letter, the witness can be examined, in the courts below, whether 
 he did not in such letter make statements such as the counsel shall, 
 by questions addressed to the witness, inquire are or are not made 
 therein; or whether the letter itself must be read as the evidence to 
 manifest that such statements are or are not contained therein?" 
 Abbott, C. J., for the Judges, answered the first question in the nega- 
 tive: "The contents of every written paper are, according to the ordi- 
 nary and well-established rules of evidence, to be proved by the paper 
 itself, and by that alone, if the paper be in existence; the proper 
 course, therefore, is to ask the witness whether or no that letter is 
 of the handwriting of the witness; if the witness admits that it is of 
 his handwriting, the cross-examining counsel may at his proper season 
 read that letter as evidence". The other question was answered thus: 
 "The Judges are of opinion, in the case propounded, that the counsel 
 cannot, by questions addressed to the witness, enquire whether or no 
 such statements are contained in the letter, but that the letter itself 
 must be read, to manifest whether such statements are or are not 
 contained in that letter. . . . [The Judges] found their opinion upon 
 what in their judgment is a rule of evidence as old as any part of the 
 common law of England, namely, that the contents of a written in- 
 strument, if it be in existence, are to be proved by that instrument 
 itself and not by parol evidence." 
 
 and conveyances, by producing a witness, Maule, J., in Boulter v. Peplow, 9 C. 
 
 or by one or two conspirators,' who might be B. 493, 501 (1850) : "It [Slatterie v. 
 
 got to swear they heard the defendant say Pooley] is certainly not very satisfactory 
 
 he had conveyed away his interest therein in its reasons. . . . What the party him- 
 
 by deed, had mortgaged or otherwise in- self says is not before the jury; but only 
 
 cumbered it; and thus, by this facility so the witness' representation of what he 
 
 given, the most open door would be given says." 
 
 to fraud, and a man might be stripped Compare the authorities cited in W., 
 
 of his estate through this invitation to § 1256. 
 fraud and dishonesty." 
 
240 PREFERENTIAL RULES. No. 254. 
 
 Henry Brougham, Speech on the Courts of Common Law, Hans. 
 Pari. Deb., zd ser., XVIII, 213, 219 (Feb. 7, 1828) : "If I wish to put 
 a witness' memory to the test, I am not allowed to examine as to 
 the contents of a letter or other paper which he has written. I must 
 put the document into his hands before I ask him any questions upon 
 it, though by so doing he at once becomes acquainted with its con- 
 tents, and so defeats the object of my inquiry. That question was 
 raised and decided in the Queen's Case, after solemn argument, and, 
 I humbly venture to think, upon a wrong ground, that the writing is 
 the best evidence and ought to be produced, though it is plain that 
 the object is by no means to prove its contents. Neither am I, in 
 like manner, allowed to apply the test to his veracity; and yet, how 
 can a better means be found of sifting a person's credit, supposing 
 his memory to be good, than examining him to the contents of a 
 letter, written by him, and which he believes to be lost? ... I shall 
 not easily forget a case in which a gentleman of large fortune ap- 
 peared before an able arbitrator, now filling an eminent judicial place, 
 on some dispute of his own, arising out of an election. It was my 
 lot to cross-examine him. I had got a large number of letters in a 
 pile under my hand, but concealed from him by a desk. He was very 
 eager to be heard in his own cause. I put the question to him: 'Did 
 you never say so and so?' His answer was distinct and ready, — 
 'Never.' I repeated the question in various forms, and with more 
 particularity, and he repeated his answers, till he had denied most 
 pointedly all he had ever written on the matter in controversy. This 
 passed before the rules in evidence laid down in the Queen's Case; 
 consequently I could examine him without putting the letters into his 
 hand. I then removed the desk, and said, 'Do you see what is now 
 under my hand?' pointing to about fifty of his letters. 'I advise you 
 to pause before you repeat your answer to the general question, 
 whether or not all you have sworn is correct. He rejected my advice, 
 and not without indignation. Now, those letters of his contained 
 matter in direct contradiction to all he had sworn. I do not say that 
 he perjured himself, — far from it. I do not believe that he inten- 
 tionally swore what was false; he only forgot what he had written 
 some time before. Nevertheless he had committed himself, and was 
 in my client's power."^ 
 
 Statute : 1854, St. if & 18 Vict, c 125, § 24 : "A witness may be cross-ex- 
 amined as to previous statements made by him in writing or reduced 
 into writing, relative to the subject-matter of the cause, without 
 ^^° such writing being shown to him; but if it is intended to contra- 
 dict such witness by the writing, his attention must, before such contra- 
 
 8 — W. M. Best, Evidence, §478 (1849): hands of the witness in the first instance, 
 "By requiring the document containing the the great principle of cross-examination is 
 supposed contradiction to be put into the sacriiiced at once. . . , Yet, according to 
 
No. 256. DOCUMENTARY ORIGINALS. 241 
 
 dictory proof can be given, be called to those parts of the writing which 
 are to be used for the purpose of so contradicting him; provided al- 
 ways that it shall be competent for the judge, at any time during the 
 trial, to require the production of the writing for his inspection, and he 
 may thereupon make such use of it for the purposes of the trial as he 
 shall think fit." 
 
 Day, Common Law Procedure Acts, 4th ed., 277 (1874) : "The 
 effect is this: the witness in the first instance may be asked whether 
 he has made such and such a statement in writing without its being 
 shown to him. If he denies that he has made it, the opposite party 
 cannot put in the statement without first calling his attention to it 
 (showing it, or at least reading it to him) and to any parts of it 
 relied upon as a contradiction."^ 
 
 (C) RULES ABOUT VARIOUS KINDS OF SECONDARY 
 EVIDENCE OF CONTENTS. 
 
 DOE dem. GILBERT v. ROSS (1840). 
 7 M. & W. 102. 
 
 Ejectment; to prove a deed of settlement, the original of which 
 was in the hands of a third person, who refused to produce it, the 
 plaintiff tendered a copy of the deed; but upon examination it 
 "^" appeared that this had been made an attested copy, and was 
 unstamped, and it was consequently rejected. It was then proposed 
 to read, as secondary evidence of the contents of the deed, a short- 
 hand writer's notes of the proceedings of the trial in the former 
 action, when the settlement had been produced and proved by the 
 then defendant Weetman. This evidence was objected to, but Lord 
 Denman allowed it to be admitted, and the short-hand writer's notes 
 ■were read. The ground of appeal was that the short-hand writer's 
 notes were not receivable when it appeared that a copy of the settle- 
 ment was in existence. 
 
 Abinger, L. C. B. : "Upon examination of the cases, and upon 
 principle, we think there are no degrees of secondary evidence. The 
 rule is that if you cannot produce the original, you may give parol 
 evidence of its contents. If indeed the party giving such parol evi- 
 dence appears to have better secondary evidence in his power which 
 he does not produce, that is a fact to go to the jury, from which they 
 might sometimes presume that the evidence kept back would be ad- 
 
 ihe practice under the resolutions in Queen full warning of the danger he had to 
 
 Caroline's Case, if the witness had taken avoid and full opportunity of shaping his 
 
 the precaution to reduce his previous state- answers to meet it." 
 
 ment to writing, the writing must be put 9 — Compare the authorities cited in W., 
 
 into his Jiands accompanied by the ques- § 1263. 
 
 iion whether he wrote it, thus giving him 
 
242 PREFERENTIAL RULES. No. 256. 
 
 verse to the party withholding it. But the law makes no distinction 
 between one class of secondary evidence and another." AldersoNj B.: 
 "The objection [to secondary evidence] must arise from the nature of 
 the evidence itself. If yon produce a copy, which shows that there 
 was an original, or if you give parol evidence of the contents of a 
 deed, the evidence itself discloses the existence of the deed. But re- 
 verse the case; the existence of an original does not show the exist- 
 ence of any copy; nor does parol evidence of the contents of a deed 
 show the existence of anything except the deed itself. If one species 
 of secondary evidence is to exclude another, a party tendering parol 
 evidence of a deed must account for all the secondary evidence that 
 has existed. He may know of nothing but the original, and the other 
 side at the trial may defeat him by showing a copy, the existence of 
 which he had no means of ascertaining. Fifty copies may be in ex- 
 istence unknown to him, and he would be bound to account for them 
 all."" 
 
 CLEMENS v. CONRAD (1869). 
 ip Mich. 1^5. 
 
 Assumpsit. A witness, called by the defendants, was asked, on 
 cross-examination, "were you indicted, in 1865, in Sandusky, for 
 smuggling?" This question was objected to, but allowed by the 
 ^"' Circuit Judge. 
 
 CooLEY, C. J. : "The right to inquire of a witness, on cross-exami- 
 nation, whether he has not been indicted and convicted of a criminal 
 offense, we regard as settled in this State by the case of Wilbur v. 
 Flood, 16 Mich. 40. It is true that in that case the question was, 
 whether the witness had been confined in State prison; not whether he 
 had been convicted; but confinement in State prison presupposes a 
 conviction by authority of law, and to justify the one inquiry and 
 not the other would only be to uphold a technical rule, and at the 
 same time point out an easy mode of evading it without in the least 
 obviating the reasons on which it rests. We think the reasons for 
 requiring record evidence of conviction have very little application to 
 a case where the party convicted is himself upon the stand and is 
 questioned concerning it with a view to sifting his character upon 
 cross-examination. The danger that he will falsely testify to a con- 
 viction which never took place, or that he may be mistaken about it, 
 is so slight that it may almost be looked upon as purely imaginary; 
 while the danger that worthless characters will unexpectedly be placed 
 upon the stand, with no opportunity for the opposite party to produce 
 the record evidence of their infamy, is always palpable and immi- 
 nent."" 
 
 10 — Compare the authorities cited in W., 11 — EUenhorough, L. C. J., in R. r. 
 
 i 1268. Castell Careinion, 8 East 77, 79 (1806), 
 
No. 258. DOCUMENTARY ORIGINALS. 243; 
 
 STATE V. LYNDE (1885). 
 71 Me. 561, I At I. 687. 
 
 Indictment for keeping a liquor nuisance. The court admitted a 
 
 copy of the record of the collector of internal revenue, showing that 
 
 defendant had a license as retail liquor dealer. This copy was 
 
 made and certified by a clerk in the office of the collector, and 
 
 the clerk was examined as a witness on the stand, and swore that the 
 
 copy was correct and true. Defendant excepted. 
 
 Peters, C. J.: "The original record of payments for licenses, kept 
 in the office of the collector of internal revenue, would have been 
 proper evidence; and a copy of the same, certified by the collector 
 himself, would have been. A copy of the record authenticated merely 
 by a clerk in the collector's office, an unofficial person, standing with- 
 out other proof, would be neither sufficient nor admissible. But it 
 was in this case supported by the testimony of the clerk as a witness, 
 who swears that he personally examined the record and made a true 
 copy. The copy, sustained by his oath, was admissible, if the mode of 
 proof styled 'sworn copies' or 'examined copies' is allowable by the 
 practice in this state. Examined copies are in England resorted to 
 as the most usual mode of proving records. The mode . . . seems to 
 have prevailed in many of the States, including Pennsylvania and 
 New York. It was at an early date adopted in some of the Federal 
 Courts. It is not an unknown mode of proof in New England. . . . 
 Why not admissible? The evidence is as satisfactory certainly as a 
 certified copy. In the latter case we depend upon the honor and in- 
 tegrity of an official, and in the former upon the oath of a competent 
 witness. In either case, an error or fraud is easily detectible. Prob- 
 ably the reason why such a mode of proof had not been much known, 
 if known at all, in our practice, is that it is cheaper and easier to 
 produce [certified] copies; and if a witness comes instead, it i& more 
 satisfactory to have [as here] the officer who controls the records 
 bring them into court."^" 
 
 on a similar question being raised; "It party to prove such conviction; and a 
 
 cannot seriously be argued that a record certificate containing the substance and 
 
 can be proved by the admission of any effect only (omitting the formal part) of 
 
 witness. He may have mistaken what the indictment and conviction for such of- 
 
 passed in court, and may have been or- fence,'* signed by the clerk or other cus- 
 
 dered on his knees for a misdemeanor. todian, shall suffice, "upon proof of the 
 
 This can only be known by the record." identity of the person." California, C. C. 
 
 Statutes: England, 1854, St. 17 and 18 P. 1872, § 2051: "It may be shown by 
 
 Vict. c. 125, § 25: "A witness in any cause the examination of the witness, or the 
 
 may be questioned as to whether he has record of the judgment, that he had been 
 
 been convicted of any felony or misde- convicted of a felony." Compare the 
 
 meaner, and upon being so questioned, if authorities in W., § 1270. 
 
 he either denies the fact or refuses to 12 — Compare the authorities cited in W., 
 
 answer, it shall be lawful for the opposite 5 1273. 
 
244 PREFERENTIAL RULES. No. 259. 
 
 WINN V. PATTERSON (1835). 
 
 p Pet. 663, 677. 
 
 Ejectment. Story, J.: "The plaintiff, to maintain an issue on his 
 part, gave in evidence a copy of a grant from the state of Georgia 
 to Basil Jones, for seven thousand three hundred acres, includ- 
 ^"" ing the lands in controversy, dated the 24th of May 1787, with 
 a plat of survey thereto annexed. He then offered a copy of a power 
 of attorney from Basil Jones to Thomas Smyth, Junior, purporting to 
 be dated the 6th of August 1793, and to authorize Smyth, among other 
 things, to sell and convey the tract of seven thousand three hundred 
 acres, so granted, which power purported to be signed and sealed in 
 the presence of 'Abram Jones, J. P., and Thomas Harwood, Jun. ;* 
 and the copy was certified to be a true copy from the records of 
 Richmond county, Georgia, and recorded therein, on the nth day of 
 July 1795. And to account for the loss of the original power of at- 
 torney, of which the copy was offered, and of the use of due diligence 
 and search to find the same, the plaintiff read the affidavit of William 
 Patterson, the lessor of the plaintiff. . . . The plaintiff also read in 
 evidence the deposition of William Robertson, who stated that he was 
 deputy clerk of the court of Richmond county in 1794, and clerk in 
 1795, . . . that the record of the power of attorney from B. Jones to 
 Thomas Smyth, Jun., made by himself while clerk of the court, is a 
 copy of an original power of attorney, which he believes to have been 
 genuine, for that the official signature of Abram Jones must have in- 
 duced him to commit the same to record; and that the copy of the said 
 power of attorney transmitted with the deponent's depositions (the copy 
 before the court), had been compared with the record of the original 
 made by himself in Richmond county, and is a true copy. The re- 
 maining question then, is, whether the copy now produced was 
 proper secondary proof, entitled by law to be admitted in evidence. 
 The argument is, that it is a copy of a copy, and so not admissible; 
 and that the original record might have been produced in evidence. 
 We admit that the rule, that a copy of a copy is not evidence, 
 is correct in itself, when properly understood and limited to its true 
 sense. The rule properly applies to cases where the copy is taken 
 from a copy, the original being still in existence and capable of being 
 compared with it, for then it is a second remove from the original; 
 or where it is a copy of a copy of a record, the record being still in 
 existence by law deemed as high evidence as the original, for then 
 also it is a second remove from the record. But it is quite a different 
 question whether it applies to cases of secondary evidence where the 
 original is lost, or the record of it is not in law deemed as high evi- 
 dence as the original; or where the copy of a copy is the highest proof 
 in existence. On these points we give no opinion ; because this is not 
 in our judgment the case of a mere copy of a copy verified as such, but it 
 
No. 260, DOCUMENTARY ORIGINALS. 245 
 
 is the case of a second copy verified as a true copy of the original. Mr. 
 Robertson expressly asserts that the record was a copy of the original 
 power made by himself, and that the present copy is a true copy which 
 has been compared by himself with the record. In effect, therefore, 
 he swears that both are true copies of the original power. In point 
 of evidence then, the case stands precisely in the same predicament 
 as if the witness had made two copies at the same time of the original, 
 and had then compared one of them with the original, and the other 
 with the first copy, which he had found correct. . . . We are there- 
 fore of opinion, that there was no ' error in the court in admitting 
 the copy in evidence under these circumstances."^^ 
 
 Chief Baron Gilbert, Evidence, 96 {ante 1726) : "A copy of the 
 deed must be proved by a witness that compared it with the origihal; 
 for there is no proof of the truth of the copy, or that it hath any 
 2&9a j-ejation to the deed, unless there be somebody to prove its com- 
 parison with the original,"^* 
 
 SUB-TITLE II. 
 RULES OF TESTIMONIAL PREFERENCE. 
 
 A: Preference for an Attesting Witness. 
 
 Professor James Bradley Thayer, Preliminary Treatise on Evi- 
 dence, 502 (1898) : "[The rule] has a clear and very old origin. Such 
 persons belonged to that very ancient class of transaction or busi- 
 """ ness witnesses, running far back into the old Germanic law, who 
 were once the only sort of witnesses that could be compelled to come 
 before a court. Their allowing themselves to be called in and set down 
 as attesting witnesses was understood to be an assent in advance to such 
 a compulsory summons. Proof by witnesses could not be made by 
 those who merely happened casually to know the fact. However exact 
 and full the knowledge of any person might be, he could not, in the 
 old Germanic procedure, be called in court as a witness, unless he- 
 had been called at the time of the event as a preappointed witness. 
 
 13 — Chief Baron Gilbert, Evidence, 8 to cases where the original is still in exist- 
 
 {ante 1726); "A copy of a copy is no ence and capable of being compared with 
 
 evidence; for the rule demands the best it, or [2] where it is the copy of a copy 
 
 evidence that the nature of the thing ad- of a record, the record being still in exist- 
 
 mits, and a copy of a copy cannot be the ence, and being by law as high evidence 
 
 best evidence; for the farther off a thing as the original." 
 
 lies from the first original truth, so much Compare the authorities cited in W., 
 
 the weaker must the evidence be." § 1275. 
 
 Poster, J., in Cameron v. Peck, 37 Conn. 14 — Compare the authorities cited in W., 
 
 763 (1871): "The rule that a copy of a § 1278. 
 copy is not evidence properly applies [i] 
 
246 PREFERENTIAL RULES. No. 260. 
 
 It was a part of such a system and in accordance with such a set of 
 ideas that witnesses formally allowed their names to be written inta 
 deeds in large numbers. When jury trial, or rather proof by jury, 
 as it originally was, came in, the old pr6of by witnesses was joined with 
 it when the execution of the deed was denied; and the same process 
 that summoned the twelve, summoned also these witnesses. The phrase 
 of the precept to the sheriff was summone duodecim (etc. etc.) cum 
 aliis. The presence of these witnesses was at first as necessary as 
 that of the jury. . . . After still another century, in 1562-3, process 
 against all kinds of witnesses was allowed, requiring them to come in, 
 not with the jury or as a part of the jury, but to testify before them 
 in open court, and then the old procedure of summoning such [attest- 
 ing] witnesses with the jury seems to have died out; [but they must 
 still be summoned as witnesses.] ... As late as the early part of the 
 eighteenth century it was doubtful whether a deed could be proved 
 at all, if the attesting witnesses came in and denied it. Half a cen- 
 tury later, Lord Mansfield, while reluctantly yielding to what he stig- 
 matized as a captious objection that you must produce the witness, 
 declared that 'It is a technical rule that the subscribing witness must 
 be produced; and it cannot be dispensed with unless it appeared that 
 his attendance could not be produced.' " 
 
 Common Law Procedure Commission (Jervis, Martin, Walton, 
 Bramwell, Willes, Cockburn), Second Report (1853), 23: "We do 
 not purpose to meddle with the preappointed evidence of execution 
 ""■'■ required either by the Legislature or by persons creating powers; 
 but we think it deserving of serious consideration whether this formal 
 proof of the execution of written documents may not in other cases 
 be dispensed with, where the execution is either admitted or capable 
 of other proof. The principle on which the necessity for producing 
 the attesting witness rests is that the witness is supposed to be con- 
 versant with all the circumstances under which the deed was executed. 
 But it is notorious tfiat in practice the attesting witness in the major- 
 ity of instances knows nothing of the transaction; the instrument 
 having been prepared, a clerk, a servant, or a neighbor is called in to 
 attest it. Added to which, as parol testimony is not admitted to con- 
 tradict or vary the terms of a written instrument, the occasions are 
 few indeed where the evidence of the attesting witness goes further 
 than to prove the execution of the writing. On the other hand, the 
 necessity of calling the attesting witness, where the execution of the 
 document is not the real matter in dispute and where there are no 
 concomitant circumstances to be inquired into, is often attended with 
 difficulty and expense, and sometimes leads to the defeat of justice. 
 Cases have occurred where, in tracing a title, numerous witnesses from 
 distant parts have been rendered necessary to prove the formal execu- 
 tion of deeds, though their execution was not really in dispute and the 
 
No. 262. ATTESTING WITNESS. 247 
 
 handwriting to all might have been proved by a single witness, and 
 doubtless would have been admitted but for the difficulty which it was 
 thought would by the existing rule be thrown in the way of the party 
 alleging title. It also sometimes happens in the course of a cause that 
 the adversary's case renders it necessary to give in evidence a docu- 
 ment which it was not supposed would be required, or a document is 
 produced by a witness on his subpoena which turns out, contrary to 
 the expectations of the party requiring it, to be attested; the attesting 
 witness is not at hand; yet the signature of the party might be easily 
 proved, or the witness producing the instrument may have heard him 
 admit the execution; nevertheless the document cannot be received, 
 and the party requiring it loses his cause. When the genuineness of 
 the document is not really in dispute, it is clear that the parties ought 
 not to be limited to any particular witness to prove the execution. When 
 the genuineness is in dispute, the party producing it will be sure to call 
 the attesting witness, as the absence of the latter would throw the 
 greatest discredit on the instrument. We therefore recommend that, 
 except in cases where the evidence of attestation is requisite to the 
 validity of the instrument, an attesting witness need not be called." 
 
 Statutes: England: 1854,, St. 17 & 18 Vict. c. 125, § 26: "It 
 
 shall not be necessary to prove by the attesting witness any instrument 
 
 to the validity of which attestation is not requisite; and such in- 
 
 ^ strument may be proved by admission, or otherwise, as if there 
 
 had been no attesting witness thereto." 
 
 Illinois: Rev. St. 1874, c. 51, § 51: Whenever any instrument "not 
 required by law to be attested by a subscribing witness" is offered in a 
 civil cause, "and the same shall appear to have been so attested, and it 
 shall become necessary to prove the execution of any such deed or other 
 writing otherwise than as now provided by law, it shall not be neces- 
 sary to prove the execution of the same by a subscribing witness to the 
 exclusion of other evidence, but the execution of such instrument may 
 be proved by secondary evidence without producing or accounting for 
 the absence of the subscribing witness or witnesses." 
 
 Massachusetts: St. 1897, c. 386, Rev. L. 1902, c. 175, § 70: "The 
 signature to an attested instrument or writing, except a will, may be 
 proved in the same manner as if it were not attested." 
 
 New York, Laws 1883, c. 195, § i : "Except in the case of written 
 instruments to the validity of which a subscribing witness, or subscribing 
 witnesses, is, or are necessary, whenever, upon the trial of any action, 
 civil or criminal, or upon the hearing of any judicial proceeding, a writ- 
 ten instrument is offered in evidence, to which there is a subscribing 
 witness, it shall not be necessary to call such subscribing witness. 
 
248 PREFERENTIAL RULES. No. 262. 
 
 but such instrument may be proved in the same manner as it might be 
 proved if there was no subscribing witness thereto."^ 
 
 TARRANT v. WARE (1862). 
 25 N. Y. 425. 
 
 DeniOj J.: "The only question which admits of argument arises 
 out of the position that the publication of the instrument .as the testa- 
 trix's will was not made in the presence of one of the subscribing 
 ""'* witnesses, and that the attestation of that witness was not made 
 at the request of the testatrix. The two attesting witnesses were H. 
 B. Newton and Mrs. Quimby. The former drew the will, and he testi- 
 fied before the surrogate that the testatrix declared it to be her will 
 in the presence of Mrs. Quimby as well as of himself, and that she 
 requested them both to sign it as witnesses. Mrs. Quimby, on the 
 contrary, though she signed her name to a full attestation clause, testi- 
 fied before the surrogate that she was not requested by the testatrix to 
 sign the will as a witness, and that there was no publication of the in- 
 strument as her last will and testament. Her account of the matter is, 
 that being at the time on a visit at the house of Mr. Ware, she was 
 called by him into the room where Mrs. Ware, the testatrix (who was 
 her aunt), was lying in bed; that the will was then placed before the 
 testatrix, who signed it, and that it was then signed by Newton, who 
 directed her, the witness, to sign under his name, which she did. She 
 testified that during this time nothing was said by any person in the 
 room except what fell from Newton in requesting her to sign, and ex- 
 cept that when the testatrix was affixing her signature, her husband, 
 who was standing at the foot of the bed, desired her to hurry. She 
 moreover declared that she did not know that the instrument was a 
 will until after the death of Mrs. Ware. If the facts are as stated by 
 her, the will was not duly executed, and it ought to have been refused 
 probate. Prior to any adjudication upon the subject, it might 
 have been argued with some plausibility that the nature and objects 
 of the provisions declaring a certain number of subscribing witnesses 
 necessary to a valid will required that the number specified should 
 unite in testifying to an execution and attestation of the instrument in 
 the manner required by the act; or at least that the will could not be 
 established if a part or all of them should deny the existence of the 
 facts requisite to show a proper execution. The witnesses were sup- 
 posed to be persons selected by the testator to bear witness that he 
 had actually executed the paper with a knowledge of its contents and 
 in the form prescribed by law and that he was of suitable age and 
 capacity and not under restraint; if the persons thus selected could 
 not or would not affirm the existence of these facts, the intention of 
 the law (it might be said) would not be answered; . . . [and] if 
 1 — Compare the authorities cited in W., § 1290. 
 
No. 264. ATTESTING WITNESS. 249 
 
 the testimony of the chosen witnesses, when unfavorable to the will, 
 could be disregarded, a will may be set up and established by testi- 
 mony not authorized by the statute and which the Legislature had not 
 considered perfectly safe in ordinary cases. But, on the other hand, 
 it was soon seen that the attesting witnesses might forget the facts to 
 which they had once attested, and that it was not impossible that they 
 might be tampered with by interested parties and thus be induced to 
 deny on oath the facts which they had been selected to witness and to 
 depose to. This view prevailed with the Courts. . . . Whether 
 their [the witnesses'] denial of what they had attested proceeds from 
 perversity or want of recollection, the testament may in either case 
 be supported."^ 
 
 DOE V. HINDSON (1765). 
 
 I Day 41, 51. 
 
 Lord C.\mden : "The Legislature set up these witnesses as a guard, 
 to protect the testator from fraud in that critical minute when he was 
 about to execute his will. . . . There is a great difference 
 ""* between the method of proving a fact in a Court of justice and 
 the attestation of that fact at the time it happens. . . . The new 
 thing introduced by this statute [of Frauds] is the attestation; the 
 method of proving this attestation stands as it did upon the old com- 
 mon-law principles. Thus, for instance, one witness is sufficient to 
 prove what all three have attested; and, though that witness must be 
 a subscriber, yet that is owing to the general common-law rule that, 
 where a witness has subscribed an instrument, he must be always pro- 
 duced, because it is the best evidence. This we see in common experi- 
 ence; for after the first witness has been examined, the will is always 
 read. . . . This [above distinction], I am afraid, has not always 
 been attended to; but some persons have been apt to reason upon this 
 point as if the statute had directed the will to be proved by three cred- 
 ible witnesses; forgetting the difference between the subscription and 
 the proof of that subscription."^ 
 
 2 — Lumpkiitj J., in GilHs v. GUlis, 96 or more of the essential facts should be 
 
 Ga. I, 15, 23 S. E. 107 (189s); "[The proved by all, or any number, of the at- 
 
 attesting witnesses are,] unless accounted testing witnesses. The right is simply to 
 
 for, indispensably necessary witnesses; but have the attesting witnesses examined, no 
 
 the testimony, even as to the factum of the matter what their testimony may be." 
 
 execution, is not confined to them. The Compare the authorities cited in W., I 
 
 fact to be established is the proper execu- 1302. 
 
 tion of the will. If that is proved by 3 — Eldon, L. C, in Bootle v. Blundell^ 
 
 competent testimony, it is sufficient, no 19 Ves. 494, 500, 505, 509 (1815): "The 
 
 matter from what quarter the testimony rule of this Court [of chancery] requiring 
 
 comes, provided the attesting witnesses are that to establish a will of real estate all 
 
 among those who bear testimony, or their the three witnesses shall be examined is 
 
 absence is explained. The inquiry, as in not by any means, as it has been repre- 
 
 other cases, is whether, taking all the sented, a technical rule." 
 
 testimony together, the fact is duly estab- Compare the authorities cited in W., £ 
 
 lished. It is not required that any one 1304. 
 
250 PREFERENTIAL RULES. No. 265. 
 
 ADAM V. KERR (1798). 
 I B. & P. 360. 
 
 Debt on a bond made in Jamaica. One of the attesting witnesses 
 
 having been proved to be dead, and the other to be resident in Jamaica, 
 
 the handwriting of the former only was established, and no evi- 
 
 ■^"^ dence was given of the handwriting of the obligor; verdict for 
 
 the plaintiff, subject to the opinion of the Court. 
 
 BuLLER, J.: "I am clear there is nothing in the first point. Where 
 a witness is dead, the course is to prove his handwriting. In this case 
 one of the attesting witnesses was dead, and the other was beyond the 
 reach of the process of the Court; the best evidence, therefore, which 
 could be obtained was given,* The handwriting of the obligor need not 
 be proved: that of the attesting witness, when proved, is evidence of 
 everything on the face of the paper; which imports to be sealed by the 
 party."6 
 
 GELOTT V. GOODSPEED (1851), 
 
 8 Cush. 411. 
 
 Trespass to try title. Dewey, J, : "The party here introduced evi- 
 dence tending to show that both the witnesses, at the time of attesting 
 the execution of the deedj resided in the State of Vermont, and, 
 " as the report states, proved the fact to the satisfaction of the 
 
 presiding judge, and that Charles Scott, one of them, still continued to 
 
 4 — Woods, J., in Dunbar v. Madden, 13 to the attestation, of the subscribing wit- 
 !N. H. 311, 31.4 (1842): "It is believed ness? It is that the facts which he has 
 to be the well-established general rule of attested are true. Suppose an attestation 
 law on this subject, that proof of the of an instrument which describes the per- 
 handwriting of the witness may be given son executing it as A. B. of C. in the 
 in all cases when from physical or legal county of York. Then the utmost effect 
 causes it is not in the power of the party you can give to the attestation is to con- 
 to produce the witness at the trial." sider it as establishing that A. B. of C. in 
 
 Compare the authorities cited in W., §§ the county of York executed the instru- 
 
 1310-1317. ment. But you must go a step further 
 
 5 — Nelson, C. J., in Losee v. Losee, z and show that the defendant is A. B. of 
 
 John. 609 (1842): "Proof of the signature C. in the county of York, or in some 
 
 of a deceased subscribing witness is pre- manner establish that he is the person by 
 
 sumptive evidence of everything appear- whom the note appears to be executed, 
 
 ing upon the face of the instrument rela- Now what does the subscribing witness in 
 
 tive to its execution; as it is presumed the this particular case attest? Why, that this 
 
 witness would not have subscribed his name instrument was duly executed by a. person 
 
 ^in attestation of that which did not take of the name of Francis Musgrove. There 
 
 place. . . . The attestation comes in by may be many persons of that name, and if 
 
 way of substitute for his oath." you do not show that the defendant is the 
 
 Bayley, B., in Whitelocke v. Musgrove, Francis Musgrove who executed the in- 
 1 Cr. & M, 520 (1833): "I always felt strument, you fail in making out an es- 
 this difficulty, that that proof alone [of sential part of -what you are bound to 
 the subscribing witness' handwriting] does prove. It is not sufficient for the sub- 
 not connect the defendant with the note. scribing witness merely to prove that he 
 , . . What is the effect which, with the saw the instrument executed. . . . Why? 
 greatest degree of latitude can be given Because it is an essential part of the is- 
 
No. 267. ATTESTING WITNESS. 251 
 
 reside there; and, as to the other witness, Charles Goss, it is stated 
 there was no further evidence; whereupon the plaintifif, having been 
 allowed to prove the handwriting of said Charles Goss, further offered 
 to prove the handwriting of Harvey Stone, the grantor in the deed; 
 but the court rejected this evidence, and ruled that the deed could not 
 be read to the jury. . . . 
 
 "We assume, therefore, that the case was one properly requiring 
 the admission of secondary evidence. Such being the case, the only 
 further inquiry is, what amount of secondary evidence is required? Is 
 it proof of the handwriting of all the subscribing witnesses, if there 
 be more than one? If the witnesses were within the Commonwealth, 
 proof of the execution by one of them would entitle the party to read 
 his deed to the jury, and the like rule applies as to the handwriting 
 where both are shown to be out of the jurisdiction of the court. In 
 ordinary cases, where the mere formal execution is the subject of in- 
 quiry, it is quite sufficient to produce one of several subscribing wit- 
 nesses; and if the secondary evidence is admissible, it is sufficient to 
 prove the handwriting of one of the attesting witnesses, it being always 
 necessary, if there be more than one attesting witness, that the absence 
 of them all should be satisfactorily accounted for, in order to let in the 
 secondary evidence."* 
 
 NEWSOM v. LUSTER (1851). 
 IS III. 175- 
 
 Trespass to try title. Trumbull, J.: "The next point in the case 
 relates to the proof of the execution of the deed from Bogue to Mc- 
 Candless and Emerson. This deed was not acknowledged, but 
 " ' was admitted in evidence upon proof of the handwriting of the 
 grantor, the absence of the subscribing witness being first accounted 
 for, and some evidence introduced tending to show that his handwrit- 
 ing could not be proved. The evidence sufficiently showed that the 
 subscribing witness to the execution of the deed was not within the 
 reach of the process of the Court; and in such case, this Court has 
 expressly decided that it is unnecessary to produce the subscribing wit- 
 ness at the trial: Wiley v. Bean, i Gilm. 305. 
 
 "It is, however, objected that, in the absence of the subscribing wit- 
 ness, the next best evidence is proof of his handwriting, and that it 
 was improper to admit the deed in evidence upon proof of the handwrit- 
 ing of the grantor alone. ... I have no hesitation in holding that 
 proof of the handwriting of the grantor to a deed furnishes altogether 
 
 sue, which you are bound to prove, that fendant with the party who has signed the 
 the instrument was executed by the de- instrument." 
 
 fendant in the suit. It seems to me. Compare the authorities cited in W., § 
 
 therefore, on principle, that you must give 1513. 
 
 some evidence of the identity of the de- 6 — Compare the authorities cited in W., 
 
 5 1306. 
 
252 PREFERENTIAL RULES. No. 267. 
 
 more satisfactory evidence of its execution than would proof of the 
 handwriting of the subscribing witness. When the attesting witness 
 cannot be had, the law requires the next best evidence, which means 
 the next best evidence of those facts to which the attesting witness, if 
 present, would be called upon to testify; that is, not- merely that he 
 signed the paper as a witness, but that the party executed the instru- 
 ment. It is difficult to account for the signature of a party to a writ- 
 ing which he did not execute ; but it is easy to imagine how a forged in- 
 strument might be established against him, when it is only necessary 
 to procure the name of a person as a subscribing witness to such an 
 instrument, and then establish it by proof of the handwriting of the 
 witness. As a general rule, therefore, whenever the subscribing wit- 
 nesses to an instrument are beyond the jurisdiction of the court, its 
 execution may be proved by proof of the handwriting of the grantor 
 or obligor. 
 
 "This rule does not of course apply to instruments which the law 
 requires to be attested by witnesses. In such cases evidence of the 
 handwriting of both party and witness would be requisite."' 
 
 Statute: California: C. C. P. 1872, § 1308: In uncontested wills, 
 "the testimony of one of the subscribing witnesses" suffices. lb. § 1315 : 
 in contested wills, "all the subscribing witnesses who are pres- 
 ^°° ent in the county and who are of sound mind must be produced 
 and examined, and the death, absence, or insanity of any of them must 
 be satisfactorily shown to the Court; if none of the subscribing wit- 
 nesses reside in the county at the time appointed for proving the will, 
 the Court may admit the testimony of other witnesses to prove the 
 sanity of the testator and the execution of the will; and, as evidence 
 of such execution it may admit proof of the handwriting of the t.estator 
 and of the subscribing witnesses or any of them."' 
 
 (B) SUNDRY TESTIMONIAL PREFERENCES. 
 
 UNITED STATES v. GIBERT (1834). 
 2 Sumner ip, 81. 
 
 Indictment against the officers and crew of the ship Panda, for 
 piracy committed on the brig Mexican. The brig Mexican belonged 
 to Salem, and was owned by Joseph Peabody. It sailed from 
 """ Salem for Rio Janeiro on the 29th August, 1832, under the com- 
 mand of Captain Butman ; having on board a valuable cargo, and twenty 
 thousand dollars in specie. On the 20th September, in 33° N. lat. 
 and 34° 30' W. Lon., she fell in with a suspicious-looking vessel, from 
 
 7 — Compare the authorities cited in W., illustrate the terms by which, in almost 
 
 § 1320. every jurisdiction, many of the preceding- 
 
 8 — This particular statute has been su- applications of the principle have been, 
 
 perseded by amendments; but it serves to affected in statutes concerning wills. 
 
No. 269, SUNDRY INSTANCES. 253 
 
 which she made many efforts, but unsuccessfully, to escape. . . . Infor- 
 mation of what had taken place was immediately disseminated through- 
 out this and other countries, and reached the coast of Africa, where Cap- 
 tain Trotter, commanding the. British brig of war Curlew, was then cruis- 
 ing. Circumstances led that gentleman to believe that the schooner 
 Panda, then lying in the river Nazareth, was the vessel which had cap- 
 tured the Mexican. He immediately, therefore, proceeded to take meas- 
 ures against her. These measures resulted in the capture of the Panda, 
 but the escape, for the time, of her crew. No ship's papers or log-book 
 were found on board of her, although diligently sought for ; and, owing 
 to some accident, she shortly afterwards blew up, thereby killing sev- 
 eral of the Curlew's men. Captain Trotter then sailed to other ports, 
 still making efforts to discover the crew of the Panda, and at last suc- 
 ceeded in arresting the prisoners, and carried them into Portsmouth, 
 England. By the British government, they were sent to this country 
 for trial, the offence of which they were charged having been commit- 
 ted on board a vessel of the United States. 
 
 Story, J. : "The next and last specification under this head is that 
 the Court declined to instruct the jury that the failure of the govern- 
 ment to produce the witness, who (it was testified) saw the match ap- 
 plied for the purpose of blowing up the Panda, and removed it, afforded 
 a legal presumption against the truth of the alleged attempt by the pris- 
 oner Ruiz to destroy the Panda. . , . The argument now is, that although 
 Mr. Quentin, who was upon the stand, stated that he was on board at 
 the same time with the witness, that he saw the smoke coming from the 
 cabin, and the absent witness go down, and bring up the match, and many 
 other circumstances to establish an intention to set the Panda on fire and 
 blow her up; yet that his testimony was not the best evidence on this 
 point, and ought to be rejected. . . It appears to me that the whole basis 
 of the argument is founded upon a mistake of the meaning of the rule of 
 law as to the production of the best evidence. The rule is not applied to 
 evidence of the same nature and degree ; but it is applied to reject second- 
 ary and inferior evidence in proof of a fact which leaves evidence of a 
 higher and superior nature behind in the possession or power of the 
 party. Thus, if the party offers a copy of a paper in evidence, when 
 he has the original in his possession, the copy will be rejected, for the 
 original is evidence of a higher nature. . . . But the rule does not 
 apply to several eye-witnesses testifying to the same facts or parts of 
 the same facts, for the testimony is all in the same degree, and where 
 there are several witnesses to the same facts, they may be proved by 
 one only. All need not be produced. If they are not produced, the 
 evidence may be less satisfactory or less conclusive, but still it is not 
 incompetent."* 
 
 9 — Campbell, J., in Elliott v. Van Buren, the law has divided testimony into primary 
 
 33 Mich. 49, 52 (1875), repudiating any and secondary; and there are no degrees 
 
 preference for a physician's testimony to of evidence, except where some document 
 
 an injured person's condition: "The term or other instrument exists the contents of 
 
 'best evidence' is confined to cases where which should be proved by an original 
 
254 PREFERENTIAL RULES. No. 270. 
 
 JEANS V. WHEEDON (1844). 
 2 Moo. & Rob. 486. 
 
 Case for a malicious prosecution. The defendant had made a 
 charge against the plaintiff before a magistrate, the hearing of which 
 was, in the first instance, adjourned, and on a subsequent occa- 
 '^ sion the case was heard, and the depositions were gone through, 
 taken down, and the plaintiff committed for trial. A magistrate's clerk 
 attended on the first occasion and took down what the defendant said, 
 but the defendant did not sign it, nor did the magistrate. Bompas Serjt. 
 objected that parol evidence was inadmissible of what the defendant 
 said on the first occasion, and that the writing must be produced. 
 
 Cresswell, J. : "I know from the depositions returned to me at 
 the assizes, that, in practice when a case is adjourned, the depositions 
 are not regularly reduced to writing under the statute; and I think 
 that parol evidence is admissible here of what was said on the first 
 occasion. If two persons are present on the examination of a witness, 
 and one takes a note of what the witness says, and the other does not, 
 the latter is as competent as the former to provq what he heard." Ver- 
 dict for the plaintiff. 
 
 Note by the Reporters : "The fact of a conversation or transac- 
 tion being reduced into writing, furnishes no general principle for ex- 
 cluding other evidence of the conversation or transaction than the writ- 
 ing. Such evidence is by no means necessarily secondary to the writ- 
 ing. Judges take notes of the evidence given on trials, yet the evidence 
 may be proved from recollection, even on an indictment for perjury. 
 . . . The exclusion must be founded either on the agreement of par- 
 ties, or on the requirements of some particular law. When parties re- 
 duce into writing the terras of an agreement, or account of any other 
 transaction, as between themselves such writing must be produced, and 
 in the case of an agreement, cannot be contradicted, or even added to 
 by parol evidence; for it is a reasonable presumption that, though other 
 things were said or done besides those recorded in the writing, the 
 parties concurred in treating those other things as not essential parts 
 of the agreement or transaction. But this reasoning does not apply to 
 third parties. There may well be occasions, either civil or criminal, 
 in which others may have an interest in proving what really passed, 
 and there is no reason why they should not be permitted to prove it, 
 
 rather than by other testimony which is one can be allowed to prove what he has 
 
 open to the danger of inaccuracy. But never learned, whether it be ordinary or 
 
 where living witnesses are placed on the scientific facts. But one who can testify 
 
 stand, one is in law on the same footing under any circumstances upon the facts on 
 
 as another. If he can testify at all, he can which he is examined may do so as well 
 
 testify in the presence as well as in the where his superiors are to be found as 
 
 absence of those who may be supposed where he knows as much as any other." 
 
 wiser or more reliable. There are some Compare the authorities cited in W., %% 
 
 questions on which some witnesses cannot 1286, 1339; and the "best evidence" phrase 
 
 testify at all, for want of knowledge. No ante, No. 163. Compare No. 191, ante. 
 
No. 270. SUNDRY INSTANCES. 255 
 
 from the memory of witnesses, without producing the writing. Where 
 matters are required to be reduced into writing by statute, either for 
 the purpose of giving validity to the transaction, or for the purpose of 
 evidence, the writing may be considered the primary evidence, and 
 must be produced. But questions may, even in these cases, arise, as to 
 the extent to which other evidence is to be excluded; in the determina- 
 tion of which, the necessity of the case in some instances, the purposes 
 of the enactment in others, must be looked to. Thus, judicial records 
 are not only primary, but from their nature conclusive, evidence of the 
 decisions of courts of justice. The Statute of Frauds requires certain 
 agreements, etc., to be in writing, to give them validity; and it may 
 be laid down as a general rule, that in cases falling within that statute, 
 the agreement cannot be added to, explained, or contradicted by parol. 
 The statutes i & 2 Ph. & M. and 7 Geo. 4. c. 64, require the examina- 
 tions of witnesses and prisoners to be reduced into writing, and parol 
 evidence of what either of them said when under examination, cannot 
 be received in the first instance on the criminal trial, preliminary to 
 which the examination was taken. But even on such criminal trial, 
 evidence is admissible by way of explanation, or to prove that the 
 party made other statements besides those reduced into writing; other- 
 wise, the safety of prisoners, and the credit of witnesses, v/ould depend 
 on the honesty and accuracy of the clerks who take the examinations; 
 and instances (not occurring on such criminal trial) may perhaps 
 arise, in which, what a witness said before a magistrate, might be given 
 in evidence against him without even producing the written examina- 
 tion ; at all events, it may be added to' or explained, and that even by 
 shewing other things said, pertinent to, and part of, the matters for 
 which the examination was taken. ... In the principal case it 
 was not, perhaps, necessary that the statements, parol evidence of 
 which was objected to (viz., statements made by the defendant on the 
 first occasion of his going before the magistrate), should have been 
 reduced to writing at all; but even if the entire examination of the 
 witnesses, and the committal of a prisoner, take place at the same 
 time, it would seem most inconvenient as well as unreasonable to make 
 the written examination conclusive, as to all the preliminary statements 
 of the witnesses on which it is founded. In practice, the witnesses 
 are allowed to tell their stories in their own way, and what the magis- 
 trates or their clerks consider to be the effect, is written down and 
 then read over (it is true) to the examinant; but it is scarcely to be 
 expected that he should be very exact in observing inaccuracies."^" 
 
 10 — Compare the authorities cited in W.,l§ 1326-1339, 1349. 
 
256 BOOK I, PART IL No. 271. 
 
 TITLE III. 
 
 ANALYTIC (OR, SCRUTINATIVE) RULES.^ 
 
 THE HEARSAY RULE. 
 
 ''Nature of These Rules. "The nature of the Analytic (or Scru- 
 tinative) rules is to subject a certain kind of evidence to tests calcu- 
 lated to exhibit and expose its possible weaknesses and to make 
 ' clear to the tribunal the precise value that it deserves. There 
 is in effect but one rule of this sort, the Hearsay rule. By this rule, 
 two such tests or securities for trustworthiness are required to be ap- 
 plied to testimonial evidence, — the tests of cross-examination and con- 
 frontation; but the second is entirely subsidiary to the first, so that the 
 essential purpose of this rule is that which is attained by bringing the 
 witness to the stand and analyzing his assertions by the potent resolvent 
 of cross-examination. The chief questions that arise in connection with 
 this rule are whether the rule has in a given case been satisfied by 
 adequate opportunity for cross-examination, whether certain classes of 
 testimonial assertions are to be received exceptionally without under- 
 going these tests, and where the line is to be drawn between utterances 
 to which the rule does and does not apply." 
 
 ^Nature of Hearsay, as an Extra-Judicial Testimonial Asser- 
 tion. "When a witness A on the stand testifies, 'B told me that event 
 X occurred,' his testimony may be regarded in two ways: (i) 
 ^' He may be regarded as asserting the event X upon his own credit, 
 i. e. as a fact to be believed because he asserts that he knows it. But 
 when it thus appears that his assertion is not based on personal observa- 
 tion of event X, his testimony to that event is rejected, because he is 
 not qualified by proper sources of knowledge to speak to it. This in- 
 volves a general principle of Testimonial knowledge, already examined,* 
 and does not involve the Hearsay rule proper. 
 
 "(2) But suppose, in order to obviate that objection, that we regard 
 A as not making any assertion about event X (of which he has no 
 personal knowledge), but as testifying to the utterance in his hearing 
 of B's statement as to event X. To this, A is clearly qualified to tes- 
 
 j — For a summary of the five Titles of 3 — Quoted from W., § 1361, 
 
 Auxiliary Rules, see <mte. No. i6a. 4 — Ante, Nos. 78-81. 
 
 2 — Quoted from W., 5 1172- 
 
No. 273. HEARSAY RULE. 257 
 
 tify, so that no objection can arise on that score. The only question, 
 then, can be whether this assertion of B, reported by A, is admissible 
 as evidence of the event X, asserted by B to have occurred. It is clear 
 that what we are now attempting to do is to prove event X by B's 
 assertion; the utterance of B's assertion being itself proved by A's tes- 
 timony to it. In other words, merely the making of B's assertion is 
 properly proved by A; but the occurrence of event X is also sought to 
 be proved, by this assertion of B, which was uttered out of court, but is 
 oiifered testimonially for the same purpose as if it were being made 
 presently by B on the stand.' It is these extra-judicial testimonial 
 assertions which the Hearsay rule prohibits. The Hearsay rule points 
 out that B's assertion, offered testimonially, is not made on the stand 
 and presently, but out of court anteriorly, and challenges it upon that 
 ground. The Hearsay rule tells us that B's assertion (even assuming 
 B to have been qualified, by knowledge and otherwise, as witness) 
 cannot be accepted because it has not been made at a time and place 
 where it could be subjected to certain essential tests or investigations 
 calculated to demonstrate its real value by exposing such latent sources 
 of error. The Hearsay rule predicates a contrast between assertions 
 untested and assertions tested; it insists upon having the latter." 
 
 CRAIG dem. ANNESLEY v. EARL OF ANGLESEA (1743). 
 
 17 How. St. Tr. 1160. 
 
 The legitimacy of the plaintiff as heir was in issue; the declara- 
 tions of Mrs. Piggot, a deceased intimate friend of his alleged mother, 
 were offered. "This was objected to by defendant's counsel, who 
 ^'^ insisted that hearsay was not evidence; . . . that Mrs. Piggot is 
 dead, and where persons^ are dead, the law hath not provided for their 
 testimony, nor will it substitute a mere declaration in the place of an 
 oath; . . . that the admitting hearsay evidence in the present affair 
 would introduce a dangerous precedent, in regard the other side could 
 not have the benefit of cross-examining; in some cases, it is true, 
 hearsay evidence is admitted from the necessity of the thing . . . that 
 in civil cases there is not the same necessity, because a bill in equity 
 may be filed to perpetuate the testimony of ancient witnesses, and then 
 the evidence may be cross-examined; but Mrs. Piggot being dead, no 
 declaration of hers can be evidence, because the defendant has no oppor- 
 tunity to cross-examine her. . . . Th e Court wnulH not admit the hear- 
 sa y of Mrs. Piggot 's decl aration to deponent to be m ade use of as evi- 
 de nce, m the principa lj-eason that hearsay evidence oug-ht not to be 
 
 5 — Chief Justice Appleton, Evidence, 174 dividual testifying is merely the conduit 
 
 <i86o) : "In all cases of hearsay the or pipe through whose agency the im- 
 
 effective witness is the individual, whether pressions of some one else are conveyed 
 
 party or not, whose supposed statements to the Court. The real proof is the hear- 
 
 the narrating witness relates. The in- say statement." 
 
258 HEARSAY RULE. No. 273. 
 
 admitted, because of the adverse party's having no opportunity of cross- 
 examining."" 
 
 COLEMAN V. SOUTH WICK (1812). 
 
 p Johns. 45, 50. 
 
 Libel published in "The Albany Register." Kent, C. J.: "The 
 next point is, that the testimony of Samuel North ought to have been 
 received, when he offered to prove that he heard the defendant 
 ^'* ask one Henry Stanley, who resided in New York, whether he 
 recollected the extract, as published in the Public Advertiser, appearing 
 in the plaintiff's paper, to which Stanley replied, that he did. This 
 point appears to me to be as untenable as the other. . . . The estab- 
 Jished doctrine is, that you must go, if you can, to the source of testi- 
 mony, and not introduce a copy, when the original is to be had, nor 
 undertake to prove what another person has been heard to say, when 
 that person is a good witness, and can be produced. . . .Why not pro- 
 duce Stanley to testify what he told the defendant, instead of resorting 
 to a bystander who heard what he said? . . . Hearsay testimony is 
 from the very nature of it attended with all such doubts and difficulties, 
 and it cannot clear them up. 'A jprsmn wbn relatpg a hp^ rsav is not 
 obliged to enter into anyj)articulars, to^ answ er _any . qaieslions, to solve 
 any difficulties, to reconcile any contradictions, toexplain any_ obscuri- 
 "ties, to remove aay ^mbigu ities ; he entrencHes himself in the simple 
 assertio n that he w^as toM_so]][and Jeayes the burden entirely on his dead 
 or _abs£nL -author.'_ . . . The _4Jaintif£_li^ means of this .■ ippfips nf pvi- 
 dgnce_would be taken by surprise and be precluded from t he benefit o f 
 .a^_cross;:exam^ifflati©n-_ci_Stanley, as~tS~alfTrh'o'se~materiar point s which 
 haye_been_suggested as necessary to throw full light~dii his informa- 
 tion." 
 
 Sir Matthew Hale, L. C. /., History of the Common Law, c. iz 
 {ante 1680) : "The excellency [in English law] of this open course of 
 evidence to the jury in presence of the judge, jury, parties, and 
 ^'® council, and even of the adverse witnesses, appears in these par- 
 ticulars : . . . 3dly, That by this course of personal and open examina- 
 tion, there is opportunity for all persons concerned, viz., the judge, or 
 any of the jury, or parties, or their council or attornies, to propound 
 occasional questions, which beats and boults out the truth much better 
 than when the witness only delivers a formal series of his knowledge 
 without being interrogated." 
 
 6— For the history of the Hearsay rule, see W., § 1364. 
 
No. 277. INTRODUCTORY. 259 
 
 Jeremy Bentham, Rationale of Judicial Evidence, b. II, c. IX, and 
 b. Ill, c. XX (1827) : "In the character of a security for the correct- 
 ness and completeness of testimony, so obvious is the utility and 
 "' importance of the faculty and practice of interrogation that the 
 mention of it in this view might well be deemed superfluous. . . . By 
 interrogations thus pointed, such a security for completeness is afforded 
 as can never be afforded by any general engagement which can be in- 
 cluded in the terms of an oath or other formulary. ... By interroga- 
 tion, and not without, is the improbity of a deponent driven out of all its 
 holds. . . . The best possible mode of extracting testimony — the mode 
 which a considerate master of a family would employ when sitting in 
 judgment on the conduct of a servant or a child — in a word, the mode 
 by oral interrogation and counter-interrogation, is a production of Eng- 
 lish growth. Among those who in its native country are so cordial in 
 their admiration of this mode of trial [by jury], there are not twenty 
 perhaps who at this moment are aware that, in contradistinction to 
 Roman jurisprudence, the mode of extracting evidence on this occasion 
 is as peculiar to English procedure as the constitution of the Court. 
 The peculiarity of the practice called in England 'cross-examination,' 
 the complete absence of it in every system of procedure grounded upon 
 the Roman (with the single exception of the partial and narrow use 
 made of it in the case of confrontation), is a fact unnoticed till now 
 in any book, but which will be as conclusively, as concisely ascertained 
 at any time by the impossibility of finding a word to render it by in any 
 other language. . . . No political institution was ever kept more com- 
 pletely, hidden from general observation. All mouths are open in praise 
 of trial by jury; and this is the mode of extraction employed on a trial 
 by jury. It has been observed that somehow or other the ends of jus- 
 tice were more effectually accomplished in that sort of court of which 
 the tribunal called a jury was one feature, and the use of this mode 
 of extracting evidence another; but to which of them the effect was 
 principally to be ascribed is a question that seems never to have pre- 
 sented itself. The feature which consists in the composition of the 
 Court seems to have engrossed all the praise of it. 'Trial by jury ! 
 Ever blessed and sacred trial by jury ! Juries for ever !' is the cry ; not 
 'Trial by oral and cross-examined evidence!' It is, however, to this 
 comparatively neglected feature that that most popular of all judicial 
 institutions would be found to be indebted for the least questionable and 
 most extensively efficient, if not the most important of its real merits." 
 
 David Paul Brown, The Forum, II, 456 (1856); this celebrated 
 
 Pennsylvanian advocate is describing a case of supposed infanticide by 
 
 poison, administered by its mother, whose seducer had deserted 
 
 '* her: "It was shown that a day or two before the death of her 
 
 infant, the mother had sent for half-an-ounce of arsenic to a 'grocer's. 
 
 That after the death the arsenic was faken to the grocer's, and was 
 
260 HEARSAY RULE. No. 277. 
 
 weighed, and had lost twenty-four grains in its weight. This circum- 
 stance, together with the opinion of the chemist, presented a strong case. 
 Neither was sufficient in itself, but together they were dangerous. Of 
 course, the cross-examination as to the weight was very rigid and 
 severe. Upon this particular point it ran thus: 'When the arsenic 
 was purchased, how did you weigh it?' 'I weighed it by shot.' 'How 
 many shot?' 'Six.' 'Of what description?' 'No. 8.' 'When it was 
 returned, did you weigh it in the same scales?' 'Yes.' 'Did you weigh 
 it with the same shot?' 'I weighed it with shot of the same number — 
 for I had no other number.' 'How much less did it weigh?' 'Twenty- 
 four grains less.' It was plain that this testimony bore hard upon the 
 prisoner — but at this stage of the case the court adjourned. Imme- 
 diately my colleague (Mr. Boyd) and myself visited the stores of all 
 the grocers, and took from various uncut bags of No. 8, the requisite 
 number of shot, subjected them to weight in the most accurate scales, 
 and found that the some number of these different parcels of shot varied 
 more in weight than the difference referred to as detected in the arsenic 
 at the time of its return. The shot — the grocers — ^the apothecary — the 
 scales — were all brought before the Court. They clearly established 
 the facts stated, and enabled us fairly to contend that there had been 
 no portion of the arsenic used, — which argument, aided by the excellent 
 character of the prisoner, proved entirely successful, and after a pain- 
 ful and prolonged trial, she was acquitted; so that her life may be said 
 to have been saved by a shot." 
 
 John C. Reed, Conduct of a Laivsuit, ^400 (1885): "When your 
 evidence is but slight and that of the other side is very strong, you may 
 be reckless in spurring his witnesses to make a complete statement. 
 ^'^ Your case is so bad that any change in it may be for the better. We 
 add an entertaining and apt illustration. Some time ago the writer while 
 waiting in court watched the trial of a case where the plaintiff sought 
 to recover damages for a breach of warranty. The defendant had sold 
 him a horse with an express warranty that he was sound and kind and 
 free from all 'outs.' The next day the plaintiff noticed that a shoe was 
 loose, and he undertook to drive him to a blacksmith's shop to have 
 him shod, when the horse exhibited such violent reluctance that he was 
 obliged to abandon the attempt. Repeated efforts made it evident that 
 he never would be shod willingly, and therefore he was obliged to sell 
 him. The defendant called two witnesses. The first, an honest, clean- 
 looking man, testified that he was a blacksmith, that he knew the horse 
 in question perfectly well, and he had shod him about the time referred 
 to in the plaintiff's testimony. 'Did you have any difficulty in shoeing 
 him?' asked the defendant's counsel. 'Not the least. He stood per- 
 fectly quiet. Never had a horse stand quieter.' The other, a venerable- 
 looking man, with a clear, blue eye, testified that he had owned the 
 horse and that he was perfectly kind. 'Did you ever have any trouble 
 
No. 279. INTRODUCTORY. 261 
 
 about getting him into a blacksmith's shop?' 'Well, sir, I don't remem- 
 ber that I ever had occasion to carry him to a blacksmith's shop while 
 I owned him.' The plaintiff's counsel evidently thought that cross- 
 examination would only develop this unpleasant testimony more strongly, 
 so he let the witnesses go. The jury found for the defendant. The 
 next morning, as the writer was sitting in court waiting for a verdict, 
 a rnan behind him, whom he recognized as the blacksmith, leaned for- 
 ward and said, 'You heard that horse case tried yesterday, didn't you? 
 Well, that fellow who tried the case for the plaintiff didn't know how 
 to cross-examine worth a cent. I told him that the horse stood per- 
 fectly quiet while I shod him ; and so he did. I didn't tell him that I 
 had to hold him by the nose with a pair of pincers to make him stand. 
 The old man said he never took him to a blacksmith's shop while he 
 had him. No more he did. He had to take him out into an open lot and 
 cast him before he could shoe him.' Of course the plaintiff's counsel 
 should have been more searching in the examination, where he could 
 not possibly .have made his own case worse."^ 
 
 PARNELL COMMISSION'S PROCEEDINGS (1888). 
 
 5th day, Times' Rep. pt. 14, pp. ip4, ip^. 
 
 This was virtually an action by Mr. Parnell and others, against the 
 London Times, for defamation, in charging among other things that 
 Mr. Parnell had approved the Phoenix Park assassination; this 
 ^'" charge was based on alleged letters of Mr. Parnell, plainly admit- 
 ting complicity, sold to the Times by one Richard Pigott, an Irish 
 editor, living in part by blackmail, who claimed to have procured them 
 from other Irishmen. Pigott himself turned out to have forged them; 
 but the case for their authenticity seemed sound, until Pigott was placed 
 on the stand for the Times and came under the cross-examination of 
 
 I — "A certain ex-Governor had on one out of the dirt; but I didn't see the de- 
 occasion a client who was indicted for fendant hit the prosecutor, and I didn't 
 maiming, the specific charge being that see him kicit him, and I didn't see him 
 the defendant had bitten off the ear of the bite his ear off.' 'You were in plain view 
 prosecutor. The case came on for trial of the parties and you say you did not see 
 and the outcome of it was not very prom- any of these things?' asked the ex-Govern- 
 ising for the defendant. While the de- or, with an expanding chest. 'Yes,' said 
 fence was still being adduced, the defend- the witness. Then the prosecuting attor- 
 ant leaned over and whispered in the ney took a hand, and cross-examined, 
 ear of his attorney, saying, 'Call Jack 'Now, Mr. Deans,' said he, 'you have told 
 Deans; he was there; he saw the whole the Governor all that you did not see of 
 thing.' Thereupon in a short while Jack this assault; please tell me what you did 
 Deans was duly called and put upon the see of it.' 'Well,' said the witness, squirm- 
 witness stand in behalf of the defendant. ing in his chair and hesitating a long time 
 'Now, Mr. Deans,' said the ex-Governor, before proceeding, 'it's so; I didn't see the 
 after the preliminary questions, 'you defendant bite off the prosecutor's ear. But 
 say that you know the defendant and that jest as I got abreast of him I seen him 
 you were present at the time of the al- spit. the ear out of his mouth.' That was 
 leged assault by him on the prosecutor. enough for the prosecution and a great 
 Tell us what you saw of that occurrence.' deal more than enough for the ex-Gov-> 
 'Well, I was coming 'long the road,' said ernor" (13 Green Bag 423). 
 the witness, 'and I seen 'em gitting up 
 
262 HEARSAY RULE. No. 279. 
 
 Sir Charles Russell. The object of the ensuing part of the cross-exam- 
 ination was to bring out Pigott's shiftiness in first selling the letters 
 as genuine to the Times, and then offering to the Parnell party for 
 money to enable them to disprove the letters' genuineness. The letters 
 had been first published in a series of articles in the Times entitled 
 "Parnellism and Crime," beginning March 7, 1887, and bringing tem- 
 porary obloquy to the Parnell party and causing the passing of the 
 Coercion Act. Dr. Archibald Walsh, mentioned in the examination, 
 was an intimate friend of Mr. Parnell. Pigott, in his prior examina- 
 tion, had claimed that he had handed the letters to the Times merely 
 for the latter's protection, to substantiate the articles, and that the pub- 
 lication of the letters "came upon me by surprise;" the falsehoods ex- 
 posed in the following answers were in a sense partly immaterial, but 
 they served all the more to show the man's thoroughly false character: 
 Q. "You were aware of the intended publication of that correspond- 
 ence?" A. "No, I was not at all aware." Q. "What?" A. "Cer- 
 tainly not.'' . . . Q. "You have already said that you were aware, 
 although you did not know they were to appear in the Times, that there 
 were grave charges to be made against Mr. Parnell and the leading 
 members of the land League?" A. "I was not aware till the publica- 
 tion actually commenced." Q. "Do you swear that?" A. "I do." Q. 
 "No mistake about that?" A. "No." Q. "Is that your letter (pro- 
 duced) ? Don't trouble to read it?" A. "Yes; I have no doubt about 
 it." Q. "My Lords, that is from Anderton's Hotel, and is addressed 
 by the witness to Dr. Walsh, Archbishop of Dublin. The date, my 
 Lords, is March 4, 1887, three days before the first appearance of the 
 first series of articles known as 'Parnellism and Crime.' (Reading.) 
 'Private and confidential. My Lord, — The importance of the matter 
 about which I write will doubtless excuse this intrusion on your atten- 
 tion. Briefly, I wish to say that / have been made aware of the details 
 of certain proceedings that are in preparation with the object of de- 
 stroying the influence of the Parnellite party in Parliament.' (To wit- 
 ness.) What were these certain proceedings that were in preparation?" 
 A. "I do not recollect." Q. "Turn to my Lords, Sir, and repeat that 
 answer." A. "I do not recollect." Q. "Do you swear that, writ- 
 ing on the 4th of March and stating that you had been made aware of 
 the details of certain proceedings that were in preparation with the 
 object of destroying the influence of the Parnellite party in Parlia- 
 ment less than two years ago, you do not know what that referred to ?" 
 A. "I do not know really." Q. "May I suggest?" A. "Yes." . . . 
 Q. "Did that passage refer to these letters, among other things?" A. 
 "No, I rather fancy it had reference to the forthcoming articles." Q. 
 "I thought you told us you did not know anything about the forthcom- 
 ing articles?" A. "Yes, I did. I find now that I am mistaken, but 
 I must have heard something about them." Q. "Try and not make 
 the same mistake again, if you please. (Reading.) 'I cannot enter 
 more fully into details than to state that the proceedings referred to 
 
No. 279. INTRODUCTORY. 263 
 
 consist in the publication of certain statements, purporting to prove the 
 complicity of Mr. Parnell himself and some of his supporters with mur- 
 ders and outrages in Ireland, to be followed in all probability by the 
 institution of criminal proceedings against these parties by the govern- 
 ment.' Who told you that?" A. "I have no idea." Q. "Did that 
 refer, among others, to the incriminatory letters?" A. "1 do not 
 recollect that it did." Q. "Do you swear it did not?" A. "I will 
 not swear it did not." Q. "Do you think it did?" A. "No." Q. 
 "Very well; did you think that these letters, if genuine, would prove, 
 or would not prove, Mr. Parnell's complicity with crime?" A. "I 
 thought they were very likely to prove it." Q. "Now, reminding you 
 of that opinion, and the same with Mr. Egan, I ask you whether you 
 did not intend to refer — I do not suggest solely, but among other things 
 — to the letters as being the matter which would prove, or purport to 
 prove complicity?" A. "Yes^ I may have had that in mind." Q. 
 "You can hardly doubt that you had that in your mind?" A. "I suppose 
 I must have had." Q. (Reading.) 'Your Grace may be assured that 
 I speak with full knowledge, and am in a position to prove beyond all 
 doubt or question the truth of what I say.' Was that true?" A. "It 
 could hardly have been true." Q. "Then you wrote that which was 
 false?" A. "1 did not suppose his Lordship would give any strength 
 to what I said. I do not think it was warranted by what I knew." 
 Q. "Did you make an untrue statement in order to add strength to 
 what you had said?" A. "Yes." Q. "A designedly untrue state- 
 ment, was it?" A. "Not designedly." Q. "Try and keep your voice 
 up." A. "I say not designedly." Q. "Accidentally?" A. "Perhaps 
 so." Q. "Do you believe these letters to be genuine?" A. "I do." 
 Q. "And did at that time?" A. "Yes." Q. "(Reading.) 'And I 
 may further assure your Grace that / am also able to point out how the 
 designs may be successfully combated and finally defeated.' (To wit- 
 ness.) Now if these documents were genuine documents, and you 
 believed them to be such, how were you able to assure his Grace that 
 you were able to point out how the designs might be successfully com- 
 bated and finally defeated?" A. "Well, as I say, I had not the letters 
 actually in my mind at that time, so far as I can remember. I do not 
 recollect that letter at all." Q. "You told me a moment ago without 
 hesitation that you had both in your mind?" A. "But, as I say, it 
 had completely faded out of my memory." Q. "That I can under- 
 stand." A. "I have not the slightest idea of what I referred to." Q. 
 "Assuming the letters to be genuine, what were the means by which 
 you were able to assure his Grace you could point out how the designs 
 might be successfully combated and finally defeated?" A. "I do not 
 know." Q. "Oh, you must think, Mr. Pigott, please. It is not two 
 years ago, you know. Mr. Pigott, had you qualms of conscience at this 
 time, and were you afraid of the consequences of what you had done ?" 
 ^. "Not at all." Q. "Then what did you mean?" /4. "I cannot tell you 
 at aIl."Q. "Try." A. "I cannot." Q. "Try." A. "I really cannot." 
 
264 HEARSAY RULE. JS'O. 279. 
 
 Q. "Try." A. "It is no use.'' Q. "Am I to take it, then, that the an- 
 swer to my Lords is that you cannot give any explanation?" A. "1 
 really cannot." . . . Q. "Now you knew these impending charges were 
 serious?" A. "Yes." Q. "Did you believe them to be true?" A. "I 
 cannot tell you whether I did or not, because, as I say, I do not recol- 
 lect." . . . Q. "First of all, you knew then that you had procured and 
 paid for a number of letters?" A. "Yes." Q. "Which, if genuine, you 
 have already told me would gravely implicate the parties from whom 
 they were supposed to come?" A. "Yes, gravely implicate." Q. "You 
 regard that as a serious charge?" A. "Yes." Q. "Did you believe that 
 charge to be true or false?" A. "I beheved that to be true." . . . Q. 
 "Now I will read you this passage: — 'P. S. I need hardly add that 
 did I consider the parties really guilty of the things charged against 
 them, I should not dream of suggesting that your Grace should take part 
 in an effort to shield them. I only wish to impress on your Grace that 
 the evidence is apparently convincing, and would probably be sufficient 
 to secure conviction if submitted to an English jury.' What have you 
 to say to that?" A. "I say nothing, except that I am sure I could not 
 have had the letters in my mind when I said that, because I do not think 
 the letters convey a sufficiently seriovis charge to warrant my writing 
 that letter.'' Q. "But as far as you have yet told us the letters consti- 
 tuted the only part of the charge with which you had anything to do?" 
 A. "Yes, that is why I say that I must have had something else in my 
 mind which I cannot recollect. I must have had some other charges 
 in my mind." Q. "Can you suggest anything that you had in your mind 
 except the letters?" A. "No, I cannot." . . . [On the next day, when 
 Pigott resumed his examination] : Q. "Then I may take it that since 
 last night you have removed from your mind — I think your bosom was 
 the expression you used — that this communication of yours [to the Arch- 
 bishop] referred to some fearful charge, something not yet mentioned?" 
 A. "No, I told you so last night, but I am sure that it is not so. I will 
 tell you my reason." Q. "You need not trouble yourself." A. "I may 
 say at once that the statements I made to the Archbishop were entirely 
 unfounded." . . . Q. "Then in the letters I have up to this time read — 
 or some of them — ^you deliberately sat down and wrote lies?" A. "Well, 
 they were exaggerations; I would not say they were lies." Q. "Was 
 the exaggeration such as that it left no truth?" A. "1 think very little." 
 
 PARNELL COMMISSION'S PROCEEDINGS. 
 
 ^2d Day, Times' Rep., pt. 20, pp. 145, 247. 
 
 ^Same trial as the preceding; the Irish Land League was charged 
 
 ■with collecting funds to be used for supporting crime and outrage and 
 
 armed rebellion, and Mr. Parnell was under cross-examination 
 
 "'" as to the purpose for which he collected money during his tour 
 
 in America; he admitted accepting money from all sources, including 
 
 I — This is intended to illustrate that too far and reacts against the cross-ex- 
 type of cross-examination which is carried aminer. 
 
No. 280. INTRODUCTORY. 265 
 
 those "physical force" adherents who favored dynamite-violence and 
 the like, but claimed that he received it for the sole purpose of furthering 
 the peaceable and lawful methods of the Land League; Sir Richard 
 Webster, the Attorney-General, in cross-examining, brought up the fol- 
 lowing significant incident. Q. "Do you remember the celebrated oc- 
 casion at Troy, when a gentleman came forward and offered you 'Ave 
 dollars for bread and twenty dollars for lead'?" A. "Yes." Q. "You 
 did not think it necessary to refuse the twenty dollars for lead?" A. "1 
 was very glad to get the money, but not for lead." Q. "In your pres- 
 ence, then, at Troy, a man offered five dollars for bread and twenty for 
 lead?" A. "That was the expression used." Q. "You understood that 
 to mean that some one in the audience was ready to subscribe five dol- 
 lars for charity and twenty dollars for fighting purposes?" A. "Not a 
 bit of it. I understood that he was ready to subscribe five dollars to our 
 charitable fund and twenty dollars in support of the Land League move- 
 ment." Q. "Then did you think it a fair description of your agitation 
 to call it 'lead'?" A. "No, I did not think it was." Q. "Why did you 
 think the gentleman meant the Land League by 'lead'?" A. "Because 
 if he had not he would not have given the money to me." Q. "Do you 
 represent that a public offer of twenty dollars for lead in support of 
 your agitation and an acceptance of the sum on your side would be 
 understood as a repudiation of physical force opinions ?" A. "At the 
 beginning of my meetings in America I had declared that I would not 
 receive one cent for arms or for any unconstitutional or illegal movement. 
 . . . Having made that declaration at the outset of my tour, and having 
 said subsequently nothing inconsistent with that declaration, I consider 
 that no man in his senses would have offered me twenty dollars believing 
 that the money would be used for the very purposes which I had repudi- 
 ated." . . . Q. "Now, do you not know that that speech about lead was 
 repeatedly quoted in Ireland, and that the construction put upon it was 
 that the subscription was for physical force matters ?" . A. "By your side 
 it was quoted, I know.'' Q. "What do you mean by my side?" A. "The 
 Tory party." . . . Q. "Did not Boyton, the Land League organizer, 
 quote the speech as meaning what I have indicated?" A. "I do not know 
 that he did." Q. "Do you not know it has been proved already 
 in this case?" A. "I do not. The only use made of the speech in that 
 sense was when Mr. O'Hanlon tried to break up our meeting in the 
 Rotunda. He wrote a letter to a newspaper next day wanting to know 
 what I had done with these twenty dollars.'' Q. "And suggesting that 
 the money ought to have gone to the physical force party for the pur- 
 chase of lead?" A. "Yes; he thought that I was misappropriating it." 
 
266 HEARSAY RULE. No. 281. 
 
 (A) SATISFACTION OF THE RULE, 
 
 BY CROSS-EXAMINATION AND CONFRONTATION. 
 
 BuLLER, J., Trials at Nisi Prius, 240 (ante 1767) : "If the witness be 
 examined de bene esse, and, before the coming in of the answer, the de- 
 fendant not being in contempt, the witness die, yet his deposition 
 shall not be read, because the opposite party had not the power of 
 cross-examination, and the rule of the common law is strict in this, that 
 no evidence shall be) admitted but what is or might have been under ex- 
 amination of both parties. . . . A deposition cannot be given in evidence 
 against any person that was not a party to the suit; and the reason is 
 because he had not liberty to cross-examine the witness, and it is against 
 natural justice that a man should be concluded by proofs in a cause to 
 which he was not a party. . . . From what has been said, it is evident 
 that, as there can be no cross-examination, a voluntary affidavit is no 
 evidence between strangers." 
 
 REX V. ERISWELL (1790). 
 3 T. R. 707. 
 
 Pauper settlement. The pauper, John Sharp, came into the parish 
 of Icklingham All Saints in 1767, where he was employed as a day 
 laborer to work on the navigation. In 1779 he was taken before 
 "^ two of his majesty's justices of the peace for the said county, by 
 the overseers of the poor of the parish of Icklingham All Saints, for the 
 purpose of being examined as to the place of his last legal settlement; 
 in consequence of which the examination was taken upon oath before 
 those two justices, and signed by the pauper. No proceedings were had 
 in consequence of this examination until the order of removal, which is 
 the subject of this appeal, was applied for and made. The pauper, from 
 the time of the examination being taken, continued to reside in Ickling- 
 ham All Saints for about five years, endeavoring to gain his livelihood, 
 and without becoming chargeable to that parish, when he became in- 
 sane, and continued in a state of insanity to the time of his removal to 
 Eriswell as aforesaid. On the part of the respondents this examina- 
 tion was offered in evidence, and objected to on the part of the appel- 
 lants. 
 
 Kenyon, L. C. J.: "Examinations upon oath, except in the excepted 
 cases, are of no avail unless they are made in a cause or proceeding 
 depending between the parties to be affected by them and where each has 
 an opportunity of cross-examining the witness. . . . Without stating the 
 cases which occur on this head, I will do little more than refer to the 
 case of The King v. Paine, in Salk. 281, & 5 Mod. 163 [1696]. That 
 
No. 283. (a) the rule satisfied. 267 
 
 was not loosely decided, but was the opinion of this Court assisted by 
 the Court of Common Pleas. In Salkeld it is expressly said that the 
 rule cannot be extended further than the particular case of felony; and 
 in the other book the Chief Justice declared that the depositions were 
 not evidence ; and a weighty reason is given, namely 'the defendant not 
 being present when they were taken before the mayor, and so had lost 
 the benefit of a cross-examination.' . . . [In this case the deposition] was 
 ex parte, obtained at the instance of those overseers whose parish was 
 to benefit by it, and behind the backs of the parish against whom it has 
 now been used, without having an opportunity of knowing what was 
 going on or attending to have the benefit of a cross-examination. I re- 
 gard the question as of the last importance and as putting in danger the 
 law of evidence in which every man in the kingdom is deeply con- 
 cerned."' 
 
 EVANS v. ROTHSCHILD (1895). 
 54 Kan. 747, S9 Pac 701. 
 
 Allen, J.: "This was an action of replevin, brought by the defend- 
 ants in error as partners, under the firm name of E. Rothschild & Bros., 
 against the sheriff of Washington county, to recover certain mer- 
 ""* chandise. On his own application, William Morrison was made 
 a party, and answered, claiming ownership of the property in contro- 
 versy. On the 22d of October, 1890, the plaintiffs served a notice on 
 the attorney for the sheriff that they would take depositions in Chicago 
 on the 28th of October, 1890, between the hours of 8 o'clock a. m. and 
 6 o'clock p. m. They also, at the same time, served another notice that 
 they would take depositions on the day stated in thei other notice, in St. 
 Joseph, Mo. The defendant appeared by attorney, and attended the tak- 
 ing of depositions at St. Joseph, but did not appear at Chicago. Before 
 the commencement of the trial, the defendants duly excepted to the depo- 
 sitions taken at Chicago, on the ground that they had elected to appear 
 and attend the taking of the depositions at St. Joseph, and that they 
 could not be required to attend in two places, distant from each other, 
 at the same time. The Court overruled the exceptions, and permitted 
 both depositions to be read at the trial. 
 
 "Section 352 of the Code of Civil Procedure provides for the service 
 of a notice of the time and place of taking depositions, as follows : 'The 
 notice shall be served so as to allow the adverse party sufficient time, by 
 the usual route of travel, to attend, and one day for preparation, exclu- 
 sive of Sunday and the day of service.' Does this permit the service of 
 two or more notices to take depositions at places widely separate from 
 €ach other, on the same day, provided only the notice is served in suffi- 
 cient time to give the party an opportunity to go to either place desig- 
 nated ? We think the spirit, if not the letter, of the statute, clearly pro- 
 
 2 — Compare the authorities cited in W., §§ 1373-1375. 
 
268 HEARSAY RULE. No. 283. 
 
 hibits any such practice. Where testimony is taken by deposition, it is 
 in one sense a part of the trial of the cause, and the only chance given 
 to the opposing party to confront the witnesses whose depositions are 
 taken under the notice is to attend before the officer who takes them. 
 The only opportunity to apply the tests necessary to correct errors or 
 detect falsehood in the statements drawn out on direct examination is 
 that afforded by cross-examination at the same titne. A party to an 
 action has a right, if he deems it necessary, to be personally present 
 when depositions are being taken affecting his interests. He is not re- 
 quired to employ a multitude of attorneys to protect his interests at 
 different places on the same day, nor does the fact that he chooses to 
 intrust his interests to the care of an attorney (other than the one who 
 tries the case for him) at one place, require him or his principal counsel 
 to attend on the same day at another place."^ 
 
 WRIGHT V. DOE dem. TATHAM (1834). 
 I A. & E. 3. 
 
 Ejectment; the plaintiff below claimed as heir-at-law of John Mars- 
 den deceased, who was admitted to have died seised, leaving the plaintiff 
 below his heir-at-law, but Wright claimed under a will of Mars- 
 284 den. 
 
 TiNDAL, C. J. : "As to the second ground of exception, the facts are, 
 that Mr. Tatham, the lessor of the plaintiff in this action, filed his bill 
 in Chancery against Mr. Wright, the defendant in the present action, 
 and three other persons. And, upon the answers of the defendants 
 coming in, the Master of the Rolls directed an issue at law upon the 
 question, whether the said John Marsden did devise his estates or not 
 by the very identical will which is now in dispute. It was further 
 proved that a trial of such issue, in which Mr. Wright and the other 
 defendants in the chancery suit were the plaintiffs, and Mr. Tatham was 
 the defendant, afterwards took place ; and that, on the trial of that 
 issue, Mr. Giles Bleasdale, one of the attesting witnesses to the will, 
 was called and examined on the part of Mr. Wright, and was cross- 
 examined on the part of Mr. Tatham. Now, if the former trial had 
 taken place in a suit between Mr. Wright and Mr. Tatham, and those 
 persons alone, no doubt could have been raised that, after the death of 
 this witness, the evidence which he gave upon the former trial would 
 have been admissible upon the second. For, in that case, it would have 
 been evidence given in a suit between the very same parties upon the 
 same subject-matter, at a trial on which Mr. Tatham had the right to 
 object to the competency of the witness, to cross-examine him at the 
 trial, and to contradict him by other testimony. Upon such a state 
 of facts, therefore, it is unnecessary to cite cases to the point, that the 
 evidence of this witness, given on the former occasion, would, after his 
 death, be admissible at the second trial. 
 
 3 — Compare the authorities cited in W., § 1379. 
 
No. 286. (a) the rule satisfied. 269 
 
 "But the only distinction between the case above supposed and the 
 present is, that Mr. Wright was not the only party, but was joined with 
 other plaintiffs in the former action; and that Mr. Tatham, instead of 
 being the plaintiff in the present action, is only the lessor of the plain- 
 tiff. But we think neither of these circumstances will make any differ- 
 ence as to the admissibility of the evidence in question. For the result 
 of the authorities is, that the lessor of the plaintiff is the real party in 
 an ejectment, that the nominal plaintiff has no interest, and that, in an 
 ejectment between Doe on the demise of J. S. against B., J. S. is bound 
 by a verdict for the defendant. Neither can there be any real differ- 
 ence from the circumstance that, in the former action, the present de- 
 fendant, Mr. Wright, was joined with other persons as plaintiffs; for 
 Mr. Tatham, the lessor of the plaintiff in this action, had precisely the 
 same power of objecting to the competency of Bleasdale, the same right 
 of cross-examination and of calling witnesses to discredit or contradict 
 his testimony, on the former trial, as he would have had if Mr. Wright 
 had been the sole plaintiff in that suit, or as he would have had now if 
 Bleasdale had been alive and subpoenaed as a witness. It is manifest, 
 therefore, that the verdict on the former trial, and the examination of 
 witnesses on each side, did not take place in a suit between third par- 
 ties or strangers, but virtually and substantially between the very same 
 parties who are parties to the present suit, and upon the very same sub- 
 ject-matter of dispute."* 
 
 Constitution of the United States (1787), Amendment VI: "In 
 all criminal prosecutions, the accused shall enjoy the right . . . 
 to be confronted with the witnesses against him." 
 
 HOWSER V. COMMONWEALTH (1865). 
 
 51 Pa. 337. 
 
 Woodward, C. J. : "Confronting witnesses does not mean impeaching 
 their, character, but means cross-examination in the presence of the 
 accused. When the common law of England was transported to 
 ° these colonies, it gave a person charged with a capital crime no 
 compulsory process to obtain witnesses and entitled him to no exami- 
 nation by himself or his counsel of witnesses brought against him. . . . 
 To remedy this state of the law, our constitutions all declared — what 
 statutes had then provided in England — that the accused should have an 
 impartial trial by jury, should have process for witnesses and be en- 
 titled to counsel to examine them, and to cross-examine those for the 
 prosecution in the presence of {confronting) the accused."" 
 
 4 — Compare the authorities cited in W., of the People was not, we think to intro- 
 
 §§ 1386-1388. duce any new principle into the law of 
 
 5 — Leonard, J., in State v. McO'Blenis, criminal procedure, but to secure those 
 
 24 Mo. 416, 435 (1857): "The purpose that already existed as part of the law 
 
270 HEARSAY RULE. No. 287. 
 
 UNITED STATES v. MACOMB (1851). 
 5 McLean 256. 
 
 Drummond, J. : "The defendant was indicted under the 21st and 22d 
 sections of the Post Office Act of March 3, 1825, 4 Statutes at Large, 
 107-9, ^or stealing from the mail a packet containing a land war- 
 "*' rant, and fifty dollars in bank notes. It appeared that the offence 
 was committed near Dixon, on the ist of August, 1850. The packet 
 was mailed at Freeport on the 30th of July, addressed to Dixon. On 
 the day the offence was committed, the defendant was arrested at the 
 latter place, and a few days afterwards, a preliminary examination took 
 place there before an officer. The defendant was present with his 
 counsel, at the examination, during which one Hurlbut, since deceased, 
 who had enclosed the land warrant and bank notes, and directed and 
 posted the letter, testified as a witness for the United States. Hurlbut 
 was subjected — to use the language of the witnesses introduced here — 
 to a long and tedious cross-examination by the counsel of the defendant. 
 An objection was taken by the counsel of the defendant at the trial in 
 this court because witnesses were permitted to state to the jury what 
 Hurlbut had sworn to on the preliminary examination. . . . The ob- 
 jection resolves itself into the two following propositions: First: The 
 declarations of a deceased witness made at a former trial between the 
 same parties, upon the same subject-matter, can never be given in evi- 
 dence in criminal cases. Secondly: If they can be, it is only when the 
 persons who are called on to give the declarations of a deceased witness, 
 can repeat the precise words of the witness, and it being admitted that 
 that was not done here, the testimony ought to have been rejected." . . . 
 
 "[As to the first point,] why should not the rule in civil and criminal 
 proceedings be the same in this respect? The great object of all judi- 
 cial investigation is to ascertain facts, and to do justice between the 
 parties, — in criminal cases, to shield the innocent, and punish the guilty. 
 In accomplishing this, however. Courts must act in conformity with some 
 general rules founded in reason and experience. But after all our ef- 
 forts we only make an approximation to this object. Many an inno- 
 cent man has been and will be punished, — many a guilty one go free. 
 If it be, on the whole, a sound rule to admit the declarations of a de- 
 
 of the land from future change by ale- ments of a deceased witness on a former 
 vating them into constitutional law. . . , trial . . . would seem to be now confined 
 It was never supposed in England, at any to cases where opportunity for cross-ex- 
 time, that this privilege was violated by amination had been afforded, and therefore 
 the admission of a dying declaration, or to cases where the accused had been con- 
 of the deposition of a deceased witness fronted by the deceased witness when the 
 -under proper circumstances; nor, indeed, testimony was given on the former trial." 
 by the reception of any other hearsay evi- Compare the authorities cited in W., §§ 
 ilence established and recognized by law 1397, '398. 
 
 as an exception to the rule." 6 — This second point is concerned with 
 
 Bnrtley, C. J., in Summons v. State, 5 the principle already considered ante. No. 
 
 Oh. St. 341 (1856): "Evidence of the state- 203. 
 
No. 288. (a) the rule satisfied. 271 
 
 ceased witness, made on a former trial, in a case involving property or 
 reputation, it is equally so in cases involving life and liberty. The 
 ground upon which we proceed in each case is the presumption of the 
 truth of the declarations, they being subjected to the tests which the 
 law recognizes, — the presence of the accused, and the right of cross- 
 examination. The admissibility of this species of evidence depends upon 
 the necessity of the case, and upon a well-established exception to the 
 rule which excludes hearsay, — if, indeed, we may not in one sense re- 
 gard it as original testimony. We receive it because it comes up to one 
 of the demands of the law; it is the best evidence which can be pro- 
 duced. Though the witness has been once confronted with the defend- 
 ant, and, in his presence, been sworn and cross-examined, it may be 
 admitted, it is more satisfactory to have him again produced before a 
 jury at a second trial. But being dead, it is impossible, and we resort 
 to the next best source of truth, — his sworn statements already made. I 
 think the law of evidence, as now administered, is quite stringent enough 
 in excluding testimony, and I confess I feel a strong disposition to admit 
 it in all cases where it can be done without violating any principle, or con- 
 troverting any settled rule of law. ... In the instance we are now con- 
 sidering, we have the sanction of the oath itself, administered by com- 
 petent authority, and the cross-examination of the witness, — the great 
 test of truth, — ^by the party ; and there is thus every reasonable safeguard 
 thrown around the claims of the public on the one hand, and the rights 
 of the accused on the other." 
 
 Statutes. United States, Rev. St. 1878, § 861 : "The mode of proof 
 in trials of actions at common law shall be by oral testimony and exami- 
 nation of witnesses in open court, except as hereinafter provided", 
 lb. § 863 : In civil cause in a district or circuit court a deposition 
 may be taken "when the witness lives at a greater distance from the place 
 of trial than 100 miles, or is bound on a voyage to sea, or is about to go 
 out of the United States, or out of the district in which the case i^ to 
 be tried, and to a greater distance than 100 miles from the place of trial, 
 before the time of trial, or when he is ancient and infirm." lb. § 865 : 
 "Unless it appears to the satisfaction of the Court that the witness is 
 then dead, or gone out of the United States, or to a greater distance than 
 100 miles from the place where the court is sitting, or that, by reason of 
 age, sickness, bodily infirmity, or imprisonment, he is unable to travel 
 and appear at court, such deposition shall not be used in the cause", 
 lb. § 866 : "In any case where it is necessary, in order to prevent a fail- 
 ure or delay of justice, any of the courts of the United States may grant 
 a dedimus potestatem to take depositions according to common usage; 
 .... and the provisions of §863, 864, and 865, shall not apply to any 
 deposition to be taken under the authority of this section".' 
 
 7 — Cheves, 1., in Drayton v. Wells, i mony of a witness who has been examined 
 N, & McC. 408 (1819): "The boolcs enu- in a former trial, between the same par- 
 merate four cases only in which the testi- ties, and where the point in issue was 
 
272 HEARSAY RULE. No. 289. 
 
 BOGIE V. NOLAN (1888). 
 
 pd Mo. 85, pij p S. W. 14. 
 
 Action on three promissory notes by M. A. Bogie against George N. 
 Nolan, administrator of the estate of Mary Dowling. Brace, J. : "In va- 
 cation, before the trial, the defendant took the deposition of the 
 * plaintiff, and filed it in the cause, and the plaintiff, on the trial, when 
 putting in his evidence in chief, offered to read his deposition, to which 
 defendant objected, and the court sustained his objection, and refused 
 to permit it to be then read. When the defendant came to put in his 
 evidence, he offered to read the same deposition as statements and ad- 
 missions of the plaintiff, to which plaintiff objected, 'the said Bogie 
 being then present in court.' The court overruled the objection, and 
 permitted the same to be read as statements and admissions of the said 
 Bogie. . . . The declarations of a party to a suit, made in a deposition 
 (taken by his adversary, may be read in evidence against him on the 
 Itrial in the same suit in which such deposition was taken, whether he 
 ibe present or absent. He is none the less a party because his adversary 
 pas called him as a witness. The Legislature, in conferring upon a 
 party the right to call upon his adversary to testify, and in providing 
 means, by deposition, to procure the evidence of witnesses who might 
 not be able to be in personal attendance upon the trial, did not intend 
 to narrow the scope of inquiry, for the very truth of the matter in con- 
 troversy, by abrogating that ancient, well-recognized, and hitherto un- 
 questioned rule of evidence, that the declarations of a party to the suit 
 may be given in evidence against him, — a rule that hitherto has had no 
 respect for time or place, always presuming that a man's statements, as 
 against himself, are truthful, whether made in court or out of court, on 
 oath or in casual conversation, orally or in writing. . . . There can be 
 no difference ^n_the_xharacter of the evidence whether the decla rations 
 are made in the deposition of a party taken in his own case then on 
 
 the same, may be given in evidence, on difference in principle whether it be by 
 
 a second trial, from the mouths of other the finger of death or by the finger of the 
 
 witnesses, who heard him give evidence, — law." 
 
 ist, Where the witness was dead; 2nd, Green, J., in Wells v. Ins. Co., 187 Pa. 
 
 Where he was insane; 3rd, Where he 166, 40 Atl. 802 (189B): "The cause of 
 
 was beyond seas; and 4th, Where the the subsequently accruing incompetency is 
 
 Court was satisfied that the witness had not material. It may arise from absence, 
 
 been kept away by the contrivance of the from sickness, from interest, from death, 
 
 opposite party." or from a newly-created statutory incom- 
 
 Professoi Simon Greenleaf, Evidence, § petency; but the principle controlling them 
 
 168 (1842): "The same principle will lead all is that if, at the time the deposition or 
 
 us farther to conclude that in all cases testimony was taken, the witness was com- 
 
 where the party has without his own fault petent, it may be given in evidence after 
 
 or concurrence irrecoverably lost the pow- the incompetency had arisen. Such is the 
 
 er of producing the witness again, whether sense of all the modern decisions, and we 
 
 from physical or from legal causes, he may think the conclusion is reasonable and just." 
 
 offer the secondary evidence of what he Compare the authorities cited in W., §5 
 
 testified in the former trial. If the lips of 1402-1413. 
 the witness are sealed, it can make no 
 
No 291. (a) the rule satisfied. 273 
 
 trial , his deposition taken in another ca se_to which he was a party, or 
 rtaken as a witness in a case in which he was not a party and had no 
 Vdirect interest. They are admissible in each case for the same reason, 
 (not as the deposition of a witness under the statute, but as the declara- 
 tion of a party to the suit,"^ 
 
 (B) EXCEPTIONS TO THE RULE. 
 
 SUGDEN V. LORD ST. LEONARDS (1876). 
 L. R. J P. D. 154. 
 Jessel, M. R. : "It might well have been that our law, like the law 
 of some other countries, should have admitted as evidence the declara- 
 tions of persons who are dead, in all cases where they were made 
 ^"^ under circumstances in which such evidence ought properly to 
 have been admitted, that is, where the person who made them had no 
 interest to the contrary, and where they were made before the com- 
 mencement of the litigation. That is not, however, our law. As a rule( 
 I the de clarations, whether in writing or oral, m ade by deceased persons, / 
 
 I ar " ' . t, -r, . 
 
 •-up 
 
 , are not admissible in evidence at all. But so inconvenient was the lav» 
 
 upon this subject, so frequently has it shut out the only obtainable 
 evidence, so frequently would it have caused a most crying and intoler- 
 able justice, that a large number of exceptions have been made to the 
 general rule. I will consider, first, what the exceptions are, and what 
 is the principle which guides the Court in making exceptions. . . Now 
 I take it the principle which underlies all these exceptions is the same. 
 In the first place, the case must be one in which it is difficult to obtain_ 
 other_eyidei;ce, for no doubt the ground for admitting the exceptions 
 was that very difficulty. In the next place, the declarant must be dis- . 
 in terested ; that is, disinterested in the sense that the declaration was 
 not made in favor of his interest. And, thirdly, the d eclaration must 
 be made be f ore disp ntp pr litigatinn so that it was made without bias on 
 account of the existence of a dispute or litigation which, the declarant 
 might be supposed to favor. Lastly, and this appears to me one of the 
 strongest reasons for admitting it, th e rierlgrant must have had peculiar 
 
 means of knowle dge nfl t pn-J'^P'i'iPrl in nrHmary focpc " 
 
 1. DYING DECLARATION. 
 REX V. WOODCOCK (1789). 
 2 Leach Cr. L. 4th ed. $00. 
 Wife-murder. The deceased was found lying in a ditch, in a nar- 
 now lane,, called Robinson's Lane, in the vicinity of Chelsea, in the county 
 of Middlesex. She had received eight wounds about the head, 
 face, and neck, which seem to have been inflicted with the end 
 of a blunt instrument ; and was so exhausted by the loss of blood as to 
 
 8 — Compare the authorities cited in W., § 1416. 
 
274 HEARSAY rule: (b) exceptions. No. 291. 
 
 be apparently dead. The body was taken to Chelsea Poor-house, put 
 into a warm bed, and by medical assistance restored to life. In the 
 course of eight hours, she recovered her senses to such a degree, that a 
 magistrate was called, and he took her examination under oath; the 
 accused, however, not being present. It appeared from the evidence of 
 the surgeons, that she died in about eight-and-forty hours after the 
 examination had been taken, and that it was impassible from the first 
 moment that she could live long, but that although she retained her 
 senses to the last moment, and repeated the circumstances of the ill 
 usage she had received, she never expressed any apprehension, or seemed 
 sensible of her approaching dissolution. 
 
 EyrEj C. B. : "The most common and ordinary species of legal evi- 
 dence consists in the depositions of witnesses taken on oath before the 
 jury, in the face of the Court, in the presence of the prisoner, and 
 received under all the advantages which examination and cross-exami- 
 nation can give. But beyond this kind of evidence there are also two 
 other species which are admitted by law: The one is the dying d eclara- 
 ti£»-ef> a_person who has received a fatal b low: the other is the exami- 
 n ation of a p risoner, and the depositions of tlTti witnesses who may be 
 produced against him, taken ot^crallv beforfe a Tuarice'TTf' the Peace, by 
 virtue ot a particula r Act of Parnament." _ , . . [In the former case] 
 the general principle on which this species of evidence is admitted is 
 that they are declarations made in extremity, when the party is at the 
 point of death and when every hope of this world is gone; when every 
 motive to falsehood is silenced, and the mind is induced by the most 
 powerful considerations to speak the truth ; a situation so solemn and 
 so awful is considered by the law as creating an obligation equal to that 
 which is created by a positive oath administered in a court of justice. 
 But a difficulty also arises with respect to these declarations; for it has 
 not appeared, and it seems impossible to find out, whether the deceased 
 herself apprehended that she was in such a state of mortality as would 
 inevitably oblige her soon to answer before her Maker for the truth or 
 falsehood of her assertions. The several witnesses could give no satis- 
 factory information as to the sentiments of her mind upon this subject. 
 . . . My judgment is that inasmuch as she was mortally wounded and 
 was in a condition which rendered almost immediate death inevitable; 
 as she was thought by every person about her to be dying, though it was 
 difficult to get from her particular explanations as to what she thought 
 of herself and her situation ; her declarations made under these circum- 
 stances ought to be considered by a jury as being made under the im- 
 pression of her approaching dissolution ; for, resigned as she appeared to 
 be, she must have felt the hand of death and must have considered her- 
 self as a dying woman."^" 
 
 g — The judge here declared the exam- of view, on the principle of No. 282, ante^ 
 ination inadmissible from the latter point 10 — R. v. Jenkins, L. R. i Cr. C. R. 192: 
 
No. 293. I. DYING DECLARATION. 275 
 
 WILSON V. BOEREM (1818). 
 15 Johns. 286. 
 
 Assumpsit, on a promissory note, drawn by Thomas Shieffelin, in 
 favor of the defendant, by whom it was endorsed to Josiah Brown, Jr., 
 and by him to the plaintiff. The note, endorsements, demand of 
 """ payment, and notice, having been proved on the part of the plain- 
 tiff, the defendant produced witnesses to prove that the note was en- 
 dorsed by Bpown and the defendant, for the accommodation of Shief- 
 felin, and delivered to the plaintiff by Brown, for the purpose of being 
 discounted by him, but that he had never paid anything on account of 
 the note, and had pledged it to one Simmons for his own debt. The 
 defendant's counsel, in order further to make out the defence, offered 
 to prove the dying declarations of Brown, in, relation to the note. 
 
 Thompson, C. J.: "No case, either in the English courts or in our 
 own, has fallen under my observation, where such evidence has been 
 admitted in civil suit. Such testimony is inconsistent with two fun- 
 damental rules in the law of evidence. It is mere hearsay, not under 
 oath, and no opportunity is given for cross-examination. . . . Whatever 
 might have been the ground on which this kind of evidence was first 
 admitte d, in c ases of homicide, we find it has long been an established 
 rule in such cases, and, I may say, in such cases only."^' 
 
 a. STATEMENT OF FACTS AGAINST INTEREST. 
 
 MIDDLETON v. melton (1829). 
 
 10 B. & C. 317- 
 
 Action against a surety on a bond given by a collector of taxes. 
 
 Bayley, J.: "The question in this case is. Whether a private book 
 
 kept by a collector of taxes, containing entries wherein he ac- 
 
 knowledges the receipt of sums of money in his character of 
 
 collector, can be given in evidence against a surety, the collector having 
 
 been appointed to collect the taxes mentioned in the bond pursuant to 
 
 (1869); Kelly, C. B. : "The result of the ... Its admission can be justified only 
 cases is that there must be an unqualified on the ground of absolute necessity, growing 
 belief in the nearness of death, a belief out of the fact that the murderer, by put- 
 without hope that the declarant is about ting the witness, and generally the sole 
 to die'*; Byles, J,: "The authorities show witness of his crime, beyond the power of 
 that there must be no hope whatever"; and the Court by killing him, shall not thereby 
 a declaration by one having "no hope at escape the consequences of his crime, 
 present" of recovery was rejected. Com- . . . Necessity, then, being the only 
 pare the authorities cited in W., §§ 1439- ground on which such testimony can be 
 1442. admitted, it remains to be seen whether 
 II — Kingman, C. J., in State v. Bohan, that necessity exists so generally, or to so 
 IS Kan. 418 (1875): "Mr. Redfield states great an extent, where the death of any 
 that this evidence is not received upon any one else than the declarant is the subject 
 other ground than that of necessity, in of the inquiry, as to justify the adoption 
 order to prevent murder going unpunished. of a rule admitting such testimony"; and 
 
276 HEARSAY rule: (b) exceptions. No. 293. 
 
 the provisions of an act of Parliament. In this case Squire was the 
 collector, and his private book was found after his death, and given by 
 his daughter to the defendant. There was evidence to show, therefore, 
 that it was left in the defendant's possession, and he having refused to 
 produce it at the trial after notice, secondary evidence of its contents 
 was admissible. It was proved that it was the collector's usual habit to 
 collect by his private book, and to mark the sums he received with ticks, 
 and that those ticks denoted that those sums had been received by him. 
 If the entries mentioned in the book were admissible evidence to show 
 that he received those suras, they will be sufficient to entitle the plaintiff 
 to retain the verdict for the full amount; and the question as to the 
 admissibility of the receipts will not necessarily arise. . . . The ques^a, 
 ition then is. Whether such an entry, made by an individual against hisr 
 town interest, may be evidence of the fact of the receipt of the money] 
 /against a third party? It is a general principle of evidence, that decla-/ 
 I rations or statements of deceased persons are admissible when they ap-j 
 I pear to have been made against their interest. An entry in a book;* 
 whereby the party making it charges himself with the receipt of money 
 on account of a third person, or acknowledges the payment of money 
 due to himself, has been held to be evidence of the receipt or payment 
 of such money. . . . These cases establish that where a person makes 
 an entry charging himself with the receipt of a sum of money, that 
 entry is evidence of the fact of the receipt of that money against a third 
 person. The question as to the receipts then becomes immaterial. But 
 if the entries in the book are admissible in evidence, because the tick 
 marked against them denotes that the collector had received the money, 
 the receipts signed by him must be evidence of the fact of such receipt 
 of the money upon the same principle." 
 
 LiTTLEDALE, J.: "WarrcH v. Greenville, 2 Str. 1129, Barry v. Bebbing- 
 ton, 4 T. R. 514, and Higham v. Ridgway, lo East, 109, establish this , 
 general principle, that where a person has peculiar means of knowing 
 a fact, and makes a declaration or written entry of the fact, which is »* 
 
 \ against his interest at the time, it is evidence of the fact as between I 
 third persons after his death."^^ / 
 
 SMITH V. BLAKEY (1867). 
 
 L. R. 2 Q. B. 326. 
 
 Action for the amount of an advance made by the plaintiff to the 
 defendant on a consignment of boots and shoes. In proving the trans- 
 action, the plaintiff offered a letter written to him in London by 
 '^ * one Barker, his confidential clerk, now deceased, who was in | 
 charge of the store in Liverpool ; part of the letter was as follows : ( 
 
 in a trial for the murder of T. A., declar- Compare the cases cited in W., §§ 1432- 
 
 ations were rejected of W. A., shot at the 1434. 
 
 same time with T. A., but surviving him a 12 — Compare the authorities cited in W., 
 
 few hours. §§ 1456-1475. 
 
No. 294. 2. STATEMENT OF FACTS AGAINST INTEREST. 277 
 
 "James Smith, Esq., London. April 5, 1864. Dear Sir, — I enclose four 
 private letters, also two drafts of Cuming Brothers. . . Draft of John 
 Blakey [the defendant] which he sent to-day, with three huge cases, to 
 the office. I enclose his invoices for your perusal, jig jeaves.j^pmeiit 
 of his goods to your judgment. I have a sample pair of each descrip- 
 ■^"lion here, whicH~we can~send out by first ship, and keep the goods for 
 the 'Lady Palmerston,' which vessel arrived yesterday from Glasgow, 
 . . . Yours, &c., Geo. C. Barker." 
 
 Blackburn, J. : "The first question is. Was the letter of the 5th of 
 April, 1864, written by Barker to the plaintiffs, admissible? ... Of 
 course, as long as Barker lived this letter would not have been evidence, 
 and he must have been himself called as a witness ; ,but,3ajto:.isjigad. 
 and it was sought to make the letter admissible, as coming within the 
 class of cases in which statements, whereby a deceased person has 
 charged himself or discharged another from the payment of money, have 
 been admitted. And no doubt when entries are against the pecuniary/ 
 , interest of the person making them, and never could be made available) 
 I for the person himself, there is such a probability of their truth that 
 : such statements have been admitted after the death of the person making! 
 ^;hem, as evidence against third persons, not merely of the precise fact 
 which is against interest, but of all matters involved in or knit up with) 
 yie staEementfas" in"Higham v. Ridgway (10 East, 109), where the' 
 entry of a man midwife that he had delivered the wife of a certain man 
 of a son on a particular day, coupled with the charges which were 
 marked as paid, was held admissible to prove the date of the birth of a 
 person who had suffered a recovery, showing that he was not of age at 
 the time. The present statement is contained in a letter which acknowl- 
 edges the receipt of 'three huge cases,' and if this acknowledgment is 
 receivable in eivdence as against interest, then the rest of the letter ex- 
 planatory of the transaction under which the cases were received would 
 also be evidence. But the authorities show, as was said in the Sussex 
 Peerage Case, 11 CI. & F. 85, that the declaration must be against pecu- 
 jniary interest, or, what is much the same thing, against proprietary inter- 
 ^ est, as when a deceased occupier of land admitted that he held as tenant 
 lof another, thus cutting down his prima facie title in fee. In the pres- 
 jent case all the admission by Barker that can be said to be against in- 
 (terest amounts to no more than an admission that he has the care of 
 |th€( three chests which have arrived at the office, and the possibility that 
 j this statement might make him liable in the case of their being lost is 
 ; aiv JBierest_oLtoo_reniote_a_nature to make the stateiiient-a4mis5ible-Jn 
 i evidence." ^ 
 
 I — Erie, J., in Papendick v. Bridgewater, must be limited. . . . The argument in sup- 
 
 5 E, & B. 180 (1855); "It is contended port of the evidence has almost gone the 
 
 that there is a wide and universal prin- length of asserting that the declaration 
 
 ciple that the declaration of a dead per- becomes admissible where any hope or fear 
 
 son, made against his interest, is admis- might have prompted a contrary assertion; 
 
 sible. No doubt many judges do use that but it was admitted that the rule could 
 
 language; but I think that the principle not go so far; and in the case in the 
 
278 
 
 HEARSAY rule: (b) EXCEPTIONS. 
 
 No. 295. 
 
 3. STATEMENTS ABOUT FAMILY HISTORY (PEDIGREE.) 
 
 VOWLES V. YOUNG (i8o6). 
 13 Ves. 140. 
 
 The issue being one of heirship, on a bill to redeem, the judge at the 
 trial below had rejected the testimony of Thomas Roberts that he had 
 heard Samuel Noble, the husband of Mary Noble, say she was 
 ^^^ illegitimate. 
 
 Erskine, L. C. : "Courts of law are obliged in cases of this kind to 
 depart from the ordinary rules of evidence, as it would be impossible to 
 establish descents according to the strict rules by which contracts are 
 established, and subjects of property regulated; requiring the facts from 
 the mouth of the witness who has the knowledge of them. In cases of 
 pedigree therefore recourse is had to a secondary sort of evidence, — ^the 
 best the nature of the subject will admit, establishing the descent from 
 the only sources that can be had. ... If the; declaration of the husband 
 is not to be received to prove the legitimacy or illegitimacy of his wife, 
 as a distant relation might, which seems to be contended, the extent of 
 that proposition must be considered. Suppose the question were whether 
 she was the daughter of A. or B., his evidence might equally be rejected 
 upon the question whether she descended from one stock or another; 
 yet, as far as hearsay is evidence of anything within the knowledge of 
 a man, no man can be supposed ignorant of the reputation of the_descent 
 of his wife; and the law, admitting probability upon such a__subject, 
 always receives reputation of descent. . . . Upon questions of pedigree, 
 inscriptions upon tombstones are admitted, as it must be supposed the- 
 relations of the family would not permit an inscription without found^- 
 
 House of Lords ... it was said that tlie 
 interest, to make the declaration admis- 
 sible, must be either pecuniary or pro- 
 prietary." 
 
 Dillon^ J., in Mahaska Co. v. Ingalls, 16 
 la. 81 (1864): "From the unbroken cur- 
 rent of English and the decided prepond- 
 erance of American authority, we think the 
 present state of the law is, that verbal 
 declarations are receivable, when accom- 
 panied by the following prerequisites: ist. 
 The declarant must be dead. To this we 
 believe tiie English cases make no excep- 
 tion. Mere absence from the jurisdiction 
 will not answer; although by the course 
 I of dec isions in some of t he State s, witli 1 
 sAjeferefiE^ to writtgWentries, ^c, absence I 
 
 ^ flight possibly b ^ treated as equiv alent to 
 deatA T'^Aii, in the case at bar; the declar- 
 aTit~ was deceased, we need not decide 
 whether death is, in all cases, an indis- 
 pensable condition. We need only say, that 
 
 probably the courts would not be inclined 
 to relax the rule so as to dispense with 
 this condition, unless it might be in the 
 case of confirmed insanity. 2d. The 
 next prerequisite is, that the declaration 
 must have been against the interest of the 
 declarant at the time, and that interest 
 must be a pecuniary one. Th at it would 
 have subjected the par ty to' penal conse- 
 quences is no t suAici ent, "aittiougu tliis- 
 would add to the weigRr^ the testimony. 
 The conflict of the declaration with the 
 pecuniary interest of the party, must be 
 clear and undoubted, as this is the main, 
 ground upon which the admissibility of this 
 species of evidence rests. 3d. The dec- 
 laration must be of a fact or facts in rela- 
 tion to a. matter concerning which the- 
 derlarant wac immediately and personally- 
 cognizable!* ' n .. ^ — "^ 
 
 Lompah! the authorities cited in W.» 
 §§ 1461-1476. 
 
No. 296. 3. FAMILY HISTORY. 279 
 
 tion to remain. Sq_engravings upon rings are admitted^ upon the pre- 
 sumption that a person would not wear a ring with an error upon it. — 
 r take this question with the quaHfication that has been stated, not 
 whether the husband had h eard the fac t from any of hisjyife's relatigns, 
 but whether he knew it; viz. whether he had .such toO'vylgdgg_asJs_nec- 
 essary to establish that kind of fact."^ 
 
 REX V. ERITH (1807). 
 8 East 5jp. 
 Pauper settlement, the issue being to the town in which the pauper 
 was domiciled. The respondents, in support of their case, examined 
 the pauper, W. Harris; who stated that about twenty years ago, 
 being then about fourteen years old, he remembered being at 
 Erith with his father from the month of June to the Michaelmas follow- 
 ing; that they lived in a barn, having no fixed residence, but travelling 
 the country from place to place; that he remembered being at other 
 places before this sojourning at Erith; and that his father, who was_ 
 now dead, had told him that Jie_ (the pauper) was born a"bastard. at 
 Erith,--an<i-had'iJt5iIIfe?"to that place as they were passing; telling him 
 that "that was tlie place of his (the pauper's) birth. 
 
 ELLENB0E0tJGH7 L. C. J., (rejecting this declaration): "The only 
 doubt which has been introduced into this case has arisen from im- 
 properly considering it as a question of pedigree. The controversy 
 was not, as in a case of pedigree, from what parents the child has de- 
 rived its birth; but in what place an undisputed birth, derived from 
 known and acknowledged persons, has happened. The point thus stated ' 
 turns on a single fact, involving no question but of locality, and there- 
 I fore not falling within the principles of or governed by the rules ap- 
 plicable to cases of pedigree."^ 
 
 2 — Eldon, L. C, in JVhitelocke v. Baker, there be lis mota, or anything which has 
 
 13 Ves. 514 (1807): "It was not the opinion precisely the same effect upon a person's 
 
 of Lord Mansiield, or of any Judge, that mind with litis contestatio, that person's 
 
 tradition, generally, is evidence even of pedi- declaration ceases to be admissible in evi- 
 
 gree; the tradition must be from persons dence. It is no longer what Lord Eldon 
 
 having such a connection with the party calls a natural effusion of the mind. It is 
 
 to whom it relates that it is natural and subject to a strong suspicion that the party 
 
 likely, from their domestic habits and was in the act of making evidence for him- 
 
 connections, that they are speaking the self. If he be in such circumstances that 
 
 truth, and that they could not be mis- what he says is said, not because it is 
 
 taken. . . . Declarations in the fam- true, not because he believes it, but because 
 
 ily, descriptions in wills, descriptions upon he feels it to be profitable or that it may 
 
 monuments, descriptions in Bibles and Reg- hereafter become evidence for him or for 
 
 istry Books, all are admitted upon the those in whom he takes an interest after 
 
 principle that they are the natural effu- his deatt, it is excluded. . . . The 
 
 sions of a party who must know the truth, question then always will be, . . . Was 
 
 and who speaks upon an occasion when his the evidence in the particular circum- 
 
 mind stands in an even position, without stances manufactured, or was it spontane- 
 
 any temptation to exceed or fall short of ous and natural?" 
 
 the truth." Compare the authorities cited in W., 
 
 Brougham, L. C, in Monkton v. Attor- § 1483. 
 
 ney-General, 2 Russ. & M. 160 (1831): "If 3 — Earl, J., in Eisenlord v. Clum, 126 
 
280 HEARSAY RULE : (b) EXCEPTIONS. No. 297. 
 
 SHIELDS V. BOUCHER (1847). 
 
 I De G. 6- Sm. 40 
 
 In an issue as to the relationship of the mother of one of the plain- 
 tiffs, the Court below had refused to receive certain declarations of the 
 deceased mother as to the place that she and her family, and her 
 ' father and mother, came from, and the place where she was mar- 
 ried. 
 
 Knight-Bruce, V. C. : "For such a purpose is there a solid ground 
 of distinction between time and place? There may be, but I do not 
 distinctly perceive it. ... I own myself not convinced that the rea- 
 sons and grounds (so far as I can collect and understand them) upon 
 which births and times of births, marriages, deaths, legitimacy, ille- 
 gitimacy, consanguinity generally, and particular degrees of consan- 
 guinity and of affinity, are allowed to be proved by hearsay (from 
 proper quarters) in a controversy merely genealogical, are not as appli- 
 cable to interrogatories like those that have been rejected in a case like 
 the present. . . . Who generally is more likely to know whence a 
 man or a family came than the man or the family? Does the emigrant, 
 living or dying, forget his native soil? Is a woman less likely to state 
 her country than her age with accuracy? .... Nor are there, 
 j perhaps, any recollection or traditions of the old more readily com- 
 municated or more acceptable to an auditory of descendants than the 
 I original seat of the family, its former residences and possessions, its 
 I migrations, its local and other distinctions of the past, its advance- 
 ment or its decay. If such topics are not strictly genealogical, they are 
 at least intimately connected with genealogy . . . and in the most 
 striking manner with the reason [of the rule]."* 
 
 JOHNSON V. LAWSON (1824). 
 2 Bing. 86. 
 The question for the jury was, whether one Francis Lidgbird (whose 
 claim the plaintiff supported) or Henry Wilding (whose claim the de- 
 fendant supported) was heir-at-law to Henry Lidgbird, who died 
 seized of certain lands in October, 1820, and was the son of 
 John Lidgbird, formerly sheriff of Kent. In consequence of a separa- 
 
 N. Y. 552, 27 N. E. 1024 (1891): "A case dential declarations where the main issue 
 
 is not necessarily one of that kind [pedi- was as to a pauper's settlement; "Upon 
 
 gree], because it may involve questions principle we can see no reason for such 
 
 of birth, parentage, age, or relationship. a limitation. If this evidence is admissi- 
 
 Where these questions are merely inci- ble to prove Such facts at all, it is equally 
 
 dental, and the judgment will simply es- so in all cases whenever they become legit- 
 
 tablish a debt, or a person's liability on a imate subjects of judicial inquiry and in- 
 
 contract, or his proper settlement as a vestigation." 
 
 pauper, and things of that nature, the case Compare the authorities cited in W., § 
 
 is not one of pedigree." 1503. 
 
 Bigelow, C. J., in North BrooMeld v. 4 — Compare the authorities cited in W., 
 
 Warren, 16 Gray 175 (i860); admitting evi- §§ 1301-1502. 
 
No. 298. 3. FAMILY HISTORY. 281 
 
 tion having taken place between John the sheriff and his wife, their son 
 Henry was brought up, from about the age of nine months, with Miss 
 Weller, \afterwards Mrs. Hollinworth, till he went to college, and he 
 spent his vacations at Mrs. Hollinworth's house: John Lidgbird, the 
 sheriff, was on the point of marriage with Mrs. Hollinworth (which 
 was prevented by his son Henry), and after the death of John, Henry 
 lived with Mrs. Hollinworth for twenty-three or twenty-four years, and 
 she was the'" only person in his confidence ; this was proved by Mrs. 
 Liicretia Pakenham, niece of Mrs. Hollinworth, who had died before 
 the trial. On the part of the plaintiff it was proposed, among other 
 evidence, to give evidence of declarations made by Mrs. Hollinworth, 
 as "to" Francis Lidgbird being the heir of Henry, who died seized; but 
 tbs learned judge refused to receive such evidence. It was then proved 
 by Mrs. Elizabeth Withers, t hat a Mrs . King had been Henry Lidg- 
 bird's housekeeper for twentyj^^four years, and it was proposed to give 
 evidence of declarations by Mrs. Ki ng, who_was no longer living, as 
 to Francis Lidgbird being the heir to Henry, but this was objected to 
 by defendant's counsel: and Mr. Baron Graham rejected it, saying 
 "that it seemed to him to be carrying the principle of hearsay evidence 
 too far; De Grey, C. J., having laid it dpwn,,.,that it must be confined 
 to persons who are members of the family." 
 . BuRROUGH^J. : "This exception, from the general rule that hear- 
 I say shall not be admitted, must be construed strictly ; and .the natural 
 jLimits of J|t_are the declarations of members of the family. If we go I 
 tjeyond, where are we to stop? Is" the declaration of a groom to be ad- 
 mitted? of a steward? of a chambermaid? of a nurse? may it be ad- 
 mitted if made a week after they have joined the family? and if not, 
 at what time after ? We should have to try in every case the life and ,. 
 habits of the party who made the declaration, and on account of this 
 uncertainty such evidence must be excluded. The argument for the 
 \defendant rests on here and there a loose expression from a judge, and 
 
 (on the circumstance that there is no case in which such evidence is re- ; 
 ported to have been excluded; but before we can admit it, we must be ; 
 referred to some case to warrant its admission. We have heard of no 
 (Such case, and therefore the present rule must be discha: 
 
 and after fifty years parties are 
 
 S — Robinson, C. J., in Doe v. Auldjo, and after fifty years parties are relieved 
 
 5 U. C. Q. B, 175 (1S48), holding admis- from the necessity of attempting to ac- 
 
 sible testimony from a member of the fam- count for him. . . . No better evidence 
 
 ily that an old body-servant, now deceased, would be required than the account brought 
 
 had returned from Africa and told them back by his faithful servant to his family, 
 
 of the death there of his master, an ex- and accredited by them and by the govern- 
 
 plorer, the ancestor in question: **There is ment which employed him." 
 therefore no improbability in the servant's Compare the authorities cited in W.^ 
 
 relation, which seems to have been cred- S§ 1487-1488. 
 ited at the time and ever since . . . 
 
282 HEARSAY RULE : (b) EXCEPTIONS. No. 299. 
 
 MONKTON V. ATTORNEY-GENERAL (1831). 1 
 
 2 Russ. & M. i^j. 
 
 Issue as to the next of kin of Samuel Troutbeck; the main question 
 wa" upon the Vice-Chancellor's rejection of a certain genealogical nar- 
 rative and pedigree of the Troutbeck family in the handwriting 
 of one John Troutbeck, deceased, purporting that the writer's 
 father and the testator were first cousins. 
 
 Brougham, L. C. : "The principal point in dispute was the relation- 
 ship of two individuals of the names of Samuel and George Troutbeck. 
 John was clearly proved to have been related to one of those two, 
 namely, to George: he was not proved — and that was as much in dis- 
 pute as the relationship of Samuel and George — he was not proved 
 to have been related to the family of Samuel; and this documentary 
 account was objected to, as not falling within the rule which admits 
 hearsay or declarations of deceased persons in a question of pedigree, 
 because (it was insisted) you must first give evidence dehors the declara- 
 tions, to connect them with the parties respecting whom the declara- 
 tions are to be tendered. I entirely agree, that in order to admit hear- 
 say evidence in pedigree, you must, by evidence dehors the declarations, 
 connect the person making them with the family. But I cannot go to 
 the length of holding, that you must prove him to be connected with 
 both the branches of the family, touching which his declaration is ten- 
 dered. That he is connected with the family is sufficient : and that con- 
 nection once proved, his declarations are then let in upon questions 
 touching that family. ... It is not more true that things whicW 
 are equal to the same thing are equal to one another than that persons 1 
 related by blood to the same individual are more or less related tol 
 each other,"" 
 
 4. ATTESTING WITNESS. 
 300 ADAM V. KERR (1798). 
 
 I B. & P^ 360. 
 [Quoted ante, No. 265.'] 
 
 5. REGULAR ENTRIES. 
 
 a. By Parties to the Cause. 
 
 Statutes: England, 7 James I, c. 12 (1609): An Act to Avoid 
 
 the Double Payment of Debts. "Whereas divers men of trades, and 
 
 handicraftsmen keeping shop-books, do demand debts of their 
 
 *"•'■ customers upon their shop-books long time after the same hath 
 
 been due, and when as they have supposed the particulars and certainty 
 
 6 — Compare the authorities cited in W., § 1491. 
 
No. 301. 5. REGULAR ENTRIES. 283 
 
 of the wares delivered to be forgotten, then either they themselves or 
 their servants have inserted into their said shop-books divers other wares 
 supposed to be delivered to the same parties, or to their use, which in 
 truth never were delivered, and this of purpose to increase by such un- 
 due means the said debt; (2) and whereas divers of the said trades- 
 men and handicraftsmen, having received all the just debt due upon 
 their said shop-books, do oftentimes leave the same books uncrossed, or 
 any way discharged, so as the debtors, their executors or administra- 
 tors, are often by suit of law enforced to pay the same debts again to 
 the party that trusted the said wares, or to his executors or adminis- 
 trators, unless he or they can produce sufficient proof by writing or 
 witnesses, of the said payment, that may countervail the credit of the 
 said shop-books, which few or none can do in any long time after the 
 said payment; (3) Be it therefore enacted by the authority of this 
 present parliament, that no tradesman or handicraftman keeping a 
 shop-book as is aforesaid, his or their executors or administrators, 
 shall after the feast of St. Michael the archangel, next coming, be 
 allowed, admitted, or received to give his shop-book in evidence in 
 any action for any money due for wares hereafter to be delivered, 
 or for work hereafter to be done, above one year before the same 
 action brought, except he or they, their executors or administrators, 
 shall have obtained or gotten a bill of debt or obligation of the debtor 
 for the said debt, or shall have brought or pursued against the said 
 debtor, his executors or administrators, some action for the said debt, 
 wares, or work done, within one year next after the same wares 
 delivered, money due for wares delivered, or work done. II. Provided 
 always, that this act, or anything therein contained, shall not extend 
 to any intercourse of traffic, merchandising, buying, selling, or other 
 trading or dealing for wares delivered or to be delivered, money due 
 or work done or to be done, between merchant and merchant, mer- 
 chant and tradesman, or between tradesman and tradesman, for any- 
 thing directly falling within the circuit or compass of their mutual 
 trades and merchandise, but that for such things only, they and every 
 of them shall be in case as if this act had never been made; an)fthing 
 herein contained to the contrary thereof notwithstanding. III. This 
 act to continue to the end of the first session of the next parliament 
 and no longer."' 
 
 7 — Hardwicke, L. C, in Glynn v. Bank James I. there was an opinion growing up 
 
 of England, 2 Ves. Sr. 38 (1750): "The that after a certain length of time a man's 
 
 rule is that a man cannot make evidence own shop-books should be evidence for him 
 
 for himself. , . . [As to] tradesmen after the year, to prevent which was that 
 
 and shop-books, . . . [there is] no Act of Parliament made, as I have been 
 
 instance, where entered in a man's own informed, by Lord Raymond upon consult- 
 
 hand, that they have been admitted after ing him. It was to take away that opinion, 
 
 any length of time as evidence. At the that after the year that might be evidence." 
 time of making the Act of Parliament of 
 
284 HEARSAY RULE : (b) EXCEPTIONS. No. 302. 
 
 Plymouth Colony Laws ip6 (1682) : "Whereas divers merchants, 
 shopkeepers, tradesmen, and handicraftsmen, have traded, sold and 
 trafficked their goods, wares, and merchandise to divers persons 
 *"'* in private, and their customers often sending for such things 
 as they need by children and servants under age, &c., whereby such 
 merchants, shopkeepers, and tradesmen have no opportunity to take 
 bonds, bills, or witness of the delivery of their goods. Yet just it is 
 that such dealers should be duly paid for their wares and merchandise. 
 It is therefore enacted that all and every merchant, shopkeeper, dealer, 
 &c., shall keep a book of their dealing and trading, fairly writing down 
 therein both debt and credit, and the said merchants, their factors or 
 servants, or any of them that shall deliver any such wares or mer- 
 chandise, making oath that the said book of accounts is true both for 
 debt and credit; such book of accounts shall be held sufficient in law 
 for the recovery of any debt within four years after the delivery of 
 any such goods; but if the defendant will take his oath that he had 
 not those goods charged in the book or account, or that he hath paid 
 for the same; then the case shall be tried and determined according to 
 the best and strongest presumption the parties concerned shall pro- 
 duce."8 
 
 EASTMAN v. MOULTON (1825). 
 3 N. H. 156. 
 
 Assumpsit; in proving a set-off for cloth sold to the plaintiff the 
 defendant offered his book of accounts, with his own oath to the cor- 
 rectness of the items. On his cross-examination, it appeared 
 *"^ that the goods were delivered not to the plaintiff himself, but 
 to the latter's servants. The book was admitted against objection. 
 
 Richardson, C. J.: "It has long been the settled practice in this 
 State, to permit the account books of a party, supported by his supple- 
 
 8 — Swift, C. J., Treatise on Evidence, 8i the book ought to be kept in a fair and 
 (Connecticut, 1810): "It is a general rule regular manner, and the articles truly en- 
 of law that no man shall be a witness in tered at the time of the delivery, or the 
 his own case; but to this there are sundry performance of the service, so as to be con- 
 exceptions, in civil cases, on the ground sistent with and support the oath of the 
 of necessity, x. The parties are admitted party; for the book is to be considered aa 
 as witnesses in actions of book debt by the essential part of the evidence, and the 
 force of statute (Statutes, Day's edition, oath of the party ts supplementary to it." 
 loi). This provision of the statute is Devens, J., in Pratt v. White, 132 Mass. 
 grounded on the necessity of the thing; 477 (1882): "It has been sanctioned as an 
 for in many insUnces, it would be very exception to the general rule of law, as^ 
 difficult to obtain any other, or better it formerly existed, that a party should 
 proof; but as this action is very common, not be a witness in his own cause, and 
 and as there is great danger in allowing from supposed necessity in order to pre- 
 a party to support a claim by his own oath, vent a failure of justice, that he shall be 
 the law has provided every possible check allowed to produce the record of his daily 
 and guard against false accounts, and has transactions, to many of which, on account 
 restrained the action within the narrowest of their variety and minuteness, it cannot 
 limits possible. It is confined to such arti- be expected there will be witnesses." 
 cies as are usually charged on book; and 
 
No. 304. 
 
 5. REGULAR ENTRIES. 
 
 285 
 
 ■^ 
 ^ 
 
 mentary oath, to go to the jury, as evidence of the delivery of articles 
 sold, and of the performance of work and labor. But as this is in 
 truth the admission of a party to be a witness in his own cause, the 
 practice is confined to cases where it may be presumed there is no V 
 better evidence, and has many limitations. 
 
 "In the first place, it must appear that the charges are in the hand- j ^ 
 writing of the party who is sworn; because, if the charges are in the 
 handwriting of a third person, such third person is presumed to know 
 the facts, and may be a witness; so that there is no necessity of admit- 
 ting the party to testify in his own cause. The book is, therefore, 
 in such a case, rejected. 
 
 "The charges in the handwriting of the party must appear in such 
 a state, that they may be presumed to have been his daily minutes 
 of his transactions and business. For if it appear in any way, that 
 many charges, purporting to be made at different dates, were in fact i 
 made at the same time, the book is not evidence. The charges must^ Si 
 appear to be the original or first entries of the party, made at or near ^ 
 the time of the transactions to be proved; and if the contrary appear, ^ 
 the book cannot be admitted as evidence. 4 
 
 "There must be no fraudulent appearances upon the book, such 
 as gross alterations. And where it appears by post marks, or other- 
 wise, that the account has been transferred to another book, such other 
 book must be produced. 
 
 "If it appear by the book itself, or by the examination of the party, 
 that there is better evidence, the book cannot go to the jury as evi- 
 dence. Thus, if an article be charged in the book as delivered by or 
 to a third person, or if the party on his examination admit that to be 
 the fact, the book is not evidence of the delivery of such article. 
 
 "The party, when called, is in the first instance permitted to state 
 only, that the book produced is his book of original entries; that the 
 charges are in his handwriting; that they were made at the times ''vS^ 
 they purport to have been made, and at or near the time of the de- 
 livery of the articles, or of the performance of the services. He may, 
 however, be cross-examined by the other party. . . . [In] the case 
 now before us, as soon as it appeared that the cloth was delivered to 
 a third person, the book became incompetent evidence to prove the 
 delivery of that article; and the jury ought. to have been so instructed."* 
 
 SMITH V. RENTZ (1892). 
 131 N. Y. j6p. 
 Action for a balance due to the plaintifif's testator, who had acted 
 as the banker and business agent of the defendant and had paid taxes 
 and other bills for her. On the trial before a referee the plaintiff 
 *"* offered in evidence the ledger kept by the testator containing the 
 items of the alleged account. It was admitted against the objection of the 
 defendant. 
 
 g — Compare the authorities cited in W., §§ 1540-1544. 
 
286 HEARSAY rule: (b) exceptions. No. 304. 
 
 Andrews, J.: "If the ledger was improperly admitted in evidence 
 the judgment must be reversed. . . . The claim is also made that the 
 books were competent as original evidence of the entries under the 
 rule making books of account in certain cases evidence in favor of 
 the party keeping them. We think there is no foundation for this con- 
 tention. The rule which prevails in this State (adopted, it is said, 
 from the law of Holland), that the books of a tradesman or other 
 person engaged in business containing items of account, kept in the 
 ordinary course of book-accounts, are admissible in favor of the person 
 keeping them, against the party against whom the charges are made, 
 after certain preliminary facts are shown, has no application to the 
 case of books or entries relating to cash items or dealings between 
 the parties. This qualification of the rule was recognized in the 
 earliest decisions in this State, and has been maintained by the courts 
 iwith general uniformity; Vosburgh v. Thayer (12 Johns. 461). It 
 stands upon clear reason. The rule admitting account books of a party 
 in his own favor, in any case, was a departure from the ordinary rules 
 of evidence. It was founded upon a supposed necessity, and was in- 
 tended for cases of small traders who kept no clerks, and was con- 
 fined to transactions in the ordinary course of buying and selling or 
 the rendition of services. In these cases some protection against fraudu- 
 lent entries is afforded in the publicity which to a greater or less 
 extent attends the manual transfer of tangible articles of property or 
 the rendition of services, and the knowledge which third persons may 
 have of the transactions to which the entries relate. But the same 
 necessity does not exist in respect to cash transactions. They are 
 usually evidenced by notes or writing or vouchers in the hands of the 
 party paying or advancing the money. Moreover, entries of cash 
 transactions could be fabricated with much greater safety, and with 
 less chance of the fraud being discovered, than entries of goods sold 
 and delivered or the services rendered. It would be unwise to extend 
 the operation of the rule admitting a party's books in evidence beyond 
 its present limits, as would be the case, we think, if books containing 
 cash dealings were held to be competent. Parties are now competent 
 witnesses in their own behalf. A resort to books of account is thereby 
 rendered unnecessary in the majority of cases. We think the ledger 
 was erroneously admitted in evidence."^" 
 
 10 — Lumpkin, J., in Ganahl v. Shore, 24 planter's account; true, the factor has the 
 Ga. 24 (1858): "In the nature of things written order, but the cash advanced de- 
 no such principle can be maintained pends upon the evidence of his books, 
 [as the inadmissibility of cash entries] . Whatever doctrine may have obtained for- 
 . . . The business of banking is con- merly upon this subject, the world is too 
 fined almost entirely to money items; so much in a whirl, there is too much to be 
 of the books of factors and commission done in the twenty-four hours now, to 
 merchants; so of brokers. Large pecuniary allow of the particularity and consequent 
 advances are made by commission houses delay in the obtaining of receipts, etc. 
 to planters, in anticipation of crops; the . . . He that so affirms [the rejection 
 customer sends an order for a thousand of money items] is half a century behind 
 dollars; it is forwarded and charged to the the age in which he lives; and to get up 
 
No. 305. 5. REGULAR ENTRIES. 287 
 
 CONKLIN V STAMLER (1859). 
 8 Abb. Pr. 400. 
 
 The only proof made in the court below, was that the plaintiff had 
 no clerk or book-keeper, and that persons dealing with him had settled 
 
 with him by his books. 
 ^^^ Daly, F. J.: "In Morrill a. Whitehead (4 E. D. Smith, 
 
 239), it was proved that the books produced were the account-books 
 of the party; that he had no clerk, and that he kept fair and honest 
 accounts ; but as there was no proof that any one of the services entered 
 in the book had been actually rendered, we reversed the judgment. This 
 is the first case in this State that has gone, I think, that length, or in 
 which it was 'distinctly determined that some of the articles or services 
 charged in the account must be shown to have been actually delivered 
 or rendered; though it has been frequently intimated that that proof 
 was essential before the books could be received or used in evi- 
 dence. (Vosburgh o. Thayer, 12 Johns., 461 ; Sickles a. Mather, 20 
 Wend., 76; Foster a. Coleman, i E. D. Smith, 86.) The decision in 
 Morrill a. Whitehead is decisive in the present case, as the only proof 
 before the justice here was that the plaintiff had no clerk, and that per- 
 sons who had dealt with him and had settled by his books had found 
 them to be correct. 
 
 "But even if this proof had been supplied, I am of opinion that 
 it would not now be sufficient to authorize a judgment. The practice 
 of allowing the party's books of accounts to be received as sufficient 
 evidence of the existence of the debt, which was contrary to the English 
 rule, came into use in this State and in New Jersey with the early 
 Dutch colonists, in whose courts merchants and traders were always 
 allowed to exhibit their books of accounts, where it was acknowledged 
 or proved that there had been a dealing between the parties, — ^provided 
 the books had been regularly kept, with the proper distinction of per- 
 sons, things, year, month, and day. Full faith and credit were then 
 given to them, especially where they were strengthened by the oath 
 of the party, or where the creditor was dead. And the practice, long 
 established in the Eastern States, of receiving such books as evidence, 
 is presumed to have been introduced by the English colonists from Hol- 
 land, who settled New England. In the Dutch colonial courts, the par- 
 ties appeared before the court and made their own statement, and if 
 ■they differed as to a fact which the Court thought material, either 
 party might be put to his oath; so that the objection made to this 
 species of evidence was, in these tribunals, of less force, as the party 
 ■who made the entries could be interrogated in respect to the truth or 
 correctness of each item. In New England, they very wisely retained 
 
 Tvith it, he must forget the things that are Compare the authorities cited in W., 
 
 ■behind, and press forward, for it will never §§ 1539-1549. 
 stop or come back to him." 
 
288 HEARSAY RULE : (b) EXCEPTIONS. No. 305. 
 
 the feature of the suppletory oath of the party substantiating the truth 
 of the entries, in connection with the practice of allowing such books 
 as evidence; and where the matter is not regulated by statute, which 
 is the case in Maine and Rhode Island, long usage has established that 
 the books of account must be supported by the oath of the party. 
 
 "In Case a. Porter (8 Johns., 2ii), the practice of allowing the 
 entries of the parties made in the usual course of business to be re- 
 ceived as evidence, was recognized as a usage established in the courts 
 of this State. ... In Vosburgh a. Thayer (i2 Johns., 465), when the 
 Court divided, Platt, J., delivered a long opinion, declaring that it 
 was repugnant to the common law. . . . But the other members of the 
 Court, in an opinion per curiam, thought that the usage and necessity 
 of admitting such proof had been too long sanctioned and felt in our 
 courts, and that it was then too late to question its admissibility. But 
 instead of simply recognizing the practice as it had prevailed in the 
 Dutch tribunals, and declaring that the party should or could be ex- 
 amined under oath as to the truth or correctness of the entries made 
 by him, they devised, as a test and safeguard, the special preliminary 
 proof, which has since been required as" a condition precedent to the 
 admission of the books, — influenced, no doubt, by what was said by 
 the whole court in the former case, and what was strongly insisted 
 upon by Judge Platt in his dissenting opinion, that they had no au- 
 thority to require, and could not admit a party to be sworn as a wit- 
 ness. . . . 
 
 "But the important change recently made in the law of this State, 
 by which a party may testify the same as any other witness, has ob- 
 viated the difficulty that was supposed to exist when the rule above 
 referred to was made, and there is now no occasion for resorting to 
 the books, unless it may be to refresh the party's memory as to the 
 items, or in cases where there is a failure of recollection. In the latter 
 case, the books, if they contain the original entries of the transaction, 
 would still, I apprehend, be evidence within the rule recognized in 
 Merrill a. Ithaca & Oswego Railroad Company (16 Wend., 586)^^; that 
 is, if the party who made the entries had entirely forgotten the facts 
 which he recorded, but can swear that he would not have entered them 
 if he had not known them at the time to be true, and that he believes 
 them to be correct. But I agree with Judge Brady, that the books, 
 except in the cases above put, caff no longer be received as sufficient 
 evidence of the sale and delivery of goods, or of the performance of 
 services, by merely proving the preliminary facts which heretofore 
 made them sufficient evidence; but that the party, if he had no other 
 means of establishing the facts, must go upon the stand as a witness, 
 resorting to his books only where it is necessary to refresh his memory 
 as to the items, or where, from a failure of recollection, he is com- 
 pelled to rely upon them alone, and can swear to what is required 
 
 II — This is the rule for a memorandum of recollection, ante, Nos. 89-92. 
 
No. 306. 5. REGULAR ENTRIES. 289 
 
 to warrant their introduction as evidence to be submitted to the tribunal 
 that is to pass upon the facts."^^ 
 
 Statutes: Georgia, Code 1895, §5182: "The books of account 
 of any merchant, shopkeeper, physician, blacksmith, or other person 
 doing a regular business and keeping daily entries thereof, may 
 *'''" be admitted in evidence as proof of such accounts, upon the fol- 
 lowing conditions: i. That he kept no clerk, or else the clerk is 
 dead or otherwise inaccessible, or for any other reason the clerk is 
 disqualified from testifying; 2. Upon proof (the party's oath being 
 sufficient) that the book tendered is his book of original entries; 3. 
 Upon proof (by his customers) that he usually kept correct books ; 
 4. Upon inspection by the Court, to see if the books are free from any 
 suspicion of fraud." 
 
 Illinois, Rev. St. 1874, c. 51, §3: "Where in any civil action, suit, 
 or proceeding, the claim or defense is founded on a book account, any 
 party or interested person may testify to his account-book, and the 
 items therein contained; that the same is a book of original entries, 
 and that the entries therein were made by himself, and are true and 
 just; or that the same were made by a deceased person, or by a dis- 
 interested person, a non-resident of the State at the time of the trial, 
 and were made by such deceased or disinterested person in the usual 
 course of trade, and of his duty or employment to the party so testi- 
 fying; and thereupon the said account-book and entries shall be ad- 
 mitted as evidence in the cause." 
 
 Iowa, Code 1897, § 4622: "The entries and other writings of a 
 decedent, made at or near the time of the transaction and in a position 
 to know the facts stated therein, may be read as prima facie evidence 
 of the facts stated therein, ... 2, when it [the entry] was made in 
 a professional capacity, or in the ordinary course of professional con- 
 duct; 3, when it was made in the performance of a duty specially en- 
 joined by law.'' lb. § 4623: "Books of account, containing charges 
 by one party against another, made in the ordinary course of business, 
 are receivable in evidence only under the following circumstances, 
 . . . First, the books must show a continuous dealing with persons 
 generally, or several items of charges at different times against the 
 other party in the same book or set of books ; Second, it must be shown, 
 by the party's oath or otherwise, that they are his books of original 
 entries; Third, it must be shown in like manner that the charges were 
 made at or near the time of the transaction therein entered, unless 
 satisfactory reasons appear for not making such proof; Fourth, the 
 charges must also be verified by the party or the clerk who made the 
 entries, to the effect that they believe them just and true, or a sufficient 
 reason must be given why the verification is not made." 
 
 12 — Compare the authorities cited in W., § 1560. 
 
290 HEARSAY rule: (b), exceptions. No. 307. 
 
 S. {b) By Third Persons. 
 
 PRICE V. EARL OF TORRINGTON (1703). 
 
 2 Ld. Raym. S75. 
 
 "In indebitatus assumpsit for beer sold and delivered to the defend- 
 ant, upon non assumpsit pleaded, at the trial at Guildhall before Holt, 
 Chief Justice, the evidence against the defendant was, that the 
 usual way of the plaintiff's trading was, that the drayman came 
 every night to the plaintiff's clerk, and gave account to him of all 
 the beer that he had delivered that day; and an entry was made of 
 ■ it in a book, which the drayman and clerk subscribed ; and that there 
 was such an entry of barrels of beer delivered to the de- 
 fendant, &c., and that the drayman was dead, and the subscription 
 was proved to be of his writing. And Holt, Chief Justice, held this 
 "good evidence to charge the defendant. And a verdict was given 
 against him, &c." 
 
 POOLE V. DICAS (1835). 
 
 I Bing. N. C. 64P. 
 
 '"'^ In an action on a bill of exchange drawn by the defendant, accepted 
 ^by Wheeler, and indorsed by the defendant to the plaintiff, a notary's 
 J3 clerk stated at the trial, that when the bill became due on Satur- 
 
 , ,*^^ day, the 8th of June, 1833, it was left by the plaintiff with the 
 * jnotary, to demand payment. A copy of the bill was made in a book 
 "^ kept by the notary for that purpose, and Manning, one of his clerks, 
 ■■' now dead, went out about seven in the evening to demand payment 
 - of the acceptor ; in a short time Manning returned, and in the margin 
 • of the book containing the copy of the bill, wrote by the side of the 
 copy of the bill, "a£Leffects." This entry was produced at the trial, 
 and proved to be in Manning's handwriting. Kelly and Humfrey, 
 )■'• for the defendant, contended that an entry such as the present '*is to 
 '••be received in two cases only; first, where it is an admission against 
 ^■jjthe interest of a deceased party who makes it; and, secondly, where 
 ^it is one of a chain or combination of facts, and the proof of one raises 
 "^a presumption that another has taken place."'^* 
 
 S^ 13 — Hardwickej L. C, in Lefebure v. original strict rules of evidence), that 
 
 ^ Warden, 2 Ves. Sr. 34 (1750); "It must where there was such evidence by a serv- 
 
 tbe admitted that by the rules of evidence ant known in transacting the business, as 
 no entry in a man's own books by himself in a goldsmith's shop by a cashier or book- 
 can be evidence for himself to prove his de- keeper, such entry, supported on the oath 
 \ mand. So far [nevertheless] the Courts of that servant that he used to make entries 
 1 of justice have gone (and that was going from time to time and that he made them 
 "! a good way, and perhaps broke in upon the truly, has been read. Farther, where that 
 
No. 309. 5. REGULAR ENTRIES. 291 
 
 TiNDAL, C. J.: "As to the first point, which is of considerable im- 
 portance, we think the evidence in question was admissible; and we 
 think it admissible on the ground that it was an entry made at the 
 time of the transaction, and made in the usual course and routine 
 of business by a person who had no interest to misstate what had 
 occurred. If there were any doubt whether it were made at the time 
 of the transaction, the case ought not to go down to trial again; but 
 acording to my impression of the testimony in the cause, the entry 
 was made at the time. ... In the present case, it was the dtity of the 
 notary's clerk to present bills for payment on the evening of the day 
 when the payment was demandable. After going out with the bill 
 for the purpose of presentment, he returns and makes an entry in the 
 margin of the book in which a copy of the bill had been made upon 
 its being left at the notary's for the purpose of presentment. This 
 was all in the ordinary course of business. The clerk had no interest 
 to make a false entry; if he had any interest, it was rather to make 
 a true entry: it is easier to state what is true than what is false; the 
 process of invention implies trouble, in such a case unnecessarily in- 
 curred; and a false entry would be likely to bring him into disgrace 
 with his employer. Again, the book in which the entry was made was 
 open to all the clerks in the office, so that an entry if false would be 
 exposed to speedy discovery."^* 
 
 SMITH V. BLAKEY (1867). 
 
 L. R. 2 Q. B. 332. 
 
 The facts have been already given in No. 294, ante. \*^^ | ' 
 Blackburn, J. : "Then it is said, if not a statement against inter- 
 est, the letter is admissible as a memorandum made in the course 
 **"" of business and in the discharge of a duty to Barker's principals. 
 But the rule a s to_the_adm.ission-crf-snciT~evidence is confined strictly 
 to the entry of the particular thing^which it is. the duty of the person 
 to do^ and unlike a statement against interest, does not extend to col- 
 lateral matters, however closely - connected- with that thing. A strong 
 instance of the distinction is the case of Chambers v. Bernasconi (i 
 
 servant, agent, or bookkeeper has been 14 — Swayne, J., in Fennerstein's Cham- 
 
 dead, if there is proof that he was the pagne, 3 Wall. 149 (1865) : "The rule rests 
 
 servant or agent usually employed in such upon the consideration that the entry, other 
 
 business, was intrusted to make such en- writing, or parol declaration of the author, 
 
 tries by his master, [and] that it was was within his ordinary business, , , . 
 
 the course of trade, — on proof that he was In all [the cases] he has full knowledge, 
 
 dead and that it was his handwriting, such no motive to falsehood, and there is the 
 
 entry has been read (which was Sir Biby strongest improbability of untruth. Safer 
 
 Lake's Case). And that was going a great sanctions rarely surround the testimony 
 
 way; for there it might be objected that of a witness examined under oath." 
 
 such entry was the same as if made by the Compare the authorities cited in W., 
 
 master himself; yet by reason of the difR- §§ 1522-1527. 
 culty of making proof in cases of this 
 kind, the Court has gone so far." 
 
292 HEARSAY rule: (b) exceptions. No. 309. 
 
 C. M. & R. 347), in the Exchequer Chamber. The reason of the dis- 
 tinction is not at first sight very obvious ; but I think all the cases show- 
 that it is an essential fact to render such an entry admissible, that not 
 only it should have been made in the due discharge of the business 
 about vsrhich the person is employed, but the duty must^be to .do the 
 very thing to which the entry relates, "and then to make,.,a.. rep,ort,4M: 
 record of it. Thus in Price v. Earl of Torrington (i Salk. 285; 2 
 Ld. Raym. 873), it was the duty of the drayman to deliver the beer 
 and enter it in the book; in Poole v. Dicas (i Bign. N. C. 649), it 
 was the duty of the clerk to present the bill and make an entry of the 
 dishonor; and in Doe v. Turford (3 B. & Ad. 890, 896-898), it was 
 the duty of the person to serve the particular notice and make an in- 
 dorsement of the service. In the last case Parke, J., points out that an 
 entry in the course of business to be admissible must be made at the 
 very time of the transaction, whereas an entry against interest may be 
 made at any time; and this explains- the distinction: if the nature of 
 the duty must be to do a particular act and make a record of it at 
 once, the time at which the entry is made is of great consequence, and 
 goes to the essence of the admissibility, which is confined to the matters 
 which it is the duty to record. It at once follows that the present state- 
 ment was not admissible, and ought not to have been received."^" 
 
 KENNEDY v. DOYLE (1865). 
 
 10 All. 161. 
 
 The facts are stated in a prior part of the opinion, quoted post, 
 No. 325. 
 
 Gray, J.: "It becomes necessary, therefore, to determine 
 whether his death has made his register competent evidence [as 
 a book of regular entries]. The leading cases upon this subject are 
 those in which Lord Holt held that entries, made in a tradesman's 
 books by his servant or drayman in the usual course of his employ- 
 ment, were admissible in evidence after the death of the latter, upon 
 proof of his handwriting. Pitman v. Maddox (2 Salk. 690; s. c. i Ld. 
 Raym, 732; Holt, 298); Price v. Torrington (i Salk. 285; s. c. 2 Ld. 
 Raym. 873; Holt, 300). . . . Lord Chancellor Plunket repeatedly ad- 
 mitted the books of a Roman Catholic chapel in Dublin, made by 
 Roman Catholic priests whose deaths and handwriting were proved, 
 as evidence of marriages and baptisms, and on the last occasion, after, 
 argument, gave this reason for their admission: 'They are the entries | 
 of deceased persons, made in the exercise of their vocation contempo- j 
 raucously with the events themselves, and without any interest or in- J 
 tention to mislead.' O'Connor v. Malone (6 CI. & F. 576, 577) ; Malone 
 V. L'Estrange (2 Irish Eq. R. 16). . . . In the United States, the law 
 is well settled that an entry made by a person in the ordinary course 
 
 15 — Compare the authorities cited in W., § 1524. 
 
No. 311. S. REGULAR ENTRIES. 293 
 
 of his business or vocation, with no interest to misrepresent, before 
 any controversy or question has arisen, and in a book produced from the 
 proper custody, is competent evidence, after his death, of the facts thus 
 recorded. In a very early case the Supreme Court of Connecticut admit- 
 ted the record of a baptism by a minister of a parish, who had since 
 died, as evidence of the fact of baptism. Huntly v. Comstock (2 Root, 
 99). It has been repeatedly held in this Commonwealth that the book 
 of a bank messenger or notary public, kept in the usual course of 
 business, though not required by law, is competent evidence after his 
 death. Welsh v. Barrett (15 Mass. 380); Porter v. Judson (i Gray, 
 175). ... In the case before us, the book was kept by the deceased 
 priest in the usual course of his office, and was produced from the 
 custody of his successor; the entry is in his own handwriting, and 
 appears to have been made contemporaneously with the performance 
 of the rite, long before any controversy had arisen, with no induce- 
 ment to misstate, and no interest except to perform his official duty. 
 The addition of a memorandum that he had been paid a fee for the 
 ceremony could not have added anything to the competency, the credi- 
 bility, or the weight, of the record as evidence of the fact. ..^rt_errtry 
 mad e in the performance of a religious duty J^ certainly of no less 
 value than one_.inade_^_a_clerk, messenger, or notary, an attorney 
 oFloTicitor, or a_£hj;2idan,Jn the course of his secular occupation."^" 
 
 FIELDER V. COLLIER (1853)." 
 1 due on the sale t)f ""cotton 
 
 Action for a sum due on the sale t)f cotton for defendant. 
 Lumpkin, J. : "Plaintiffs offered in evidence the depositions of Edward 
 Hogland and John Clancy, to prove the sale of the cotton, the 
 "•'•^ expenses incurred, &c. And counsel for the defendant objected, 
 because the witnesses stated, 'that they derived their information rela- 
 tive to the matter about which they swore from the books, documents, 
 accounts and vouchers of plaintiff.' As this constitutes, not only the 
 principal point in the cause, but is really a question of some magnitude, 
 it is proper to bestow upon it, a careful consideration. Edward Hog- 
 land was book-keeper, and John Clancy account sales clerk, of this large 
 factorage and commission house in Liverpool. They both testify to 
 the correctness of the account of sales and expenses upon defendant's 
 lot of cotton. Appended to their answer they swear, 'that the expenses 
 were reasonable, customary, necessary and just, at the time they were 
 severally incurred; that from the business they have performed for 
 the plaintiffs, and from their intimate knowledge of their business, de- 
 
 16 — Compare the authorities cited in W., randa by book-entrant, based on reports of 
 5 1323- a salesman, etc., both being called to the 
 
 17 — The principle of this case is to be stand to verify). 
 
394 HEARSAY rule: (b) exceptions. No. 311. 
 
 rived from long experience, they can state that they kept correct 
 books; that the expenses charged were paid, and that they are such 
 expenses as are necessarily incidental to the sale of cotton in Liver- 
 pool ; that no sale can be effected without the payment of such expenses, 
 and that the consignee is liable for, and must pay them.' Shall the 
 plaintiffs be compelled to go behind the books thus verified by the clerks 
 who kept them, and resort to each of the sub-agents who participated 
 in the transaction and sale of this produce? Are not the entries thus 
 made in the usual course of the business of this extensive trading es- 
 tablishment, and as a part of the proper employment of the witnesses 
 who prove them, not only the best, but the only reliable evidence which 
 it is practicable to secure ? We Ijave no hesitation in holding that^ pro- 
 priety, justice, and convenience require it to be admitted. The weighers, 
 wharfingers, and numerous subordinates who handled this cotton kept 
 no books. Tliex.reportJtia,. the. clerks who keep the books of the^^ con- 
 cern, and their functions are performed. It is not reasonable to suppose 
 thatthey can remember the multitude of transactions thus occurring every 
 day. ... To impose ^^ifferent rule upon these establishments, whether 
 at home or abroad, and to require tliem at all times, within the statutory 
 period of limitations, to be prepared with original aliunde evidence to 
 prove the terms of sale of all the property consigned to them, each item 
 of expense, etc., would trammel commerce and amount to a denial of 
 justice."^ ^ 
 
 6. SUNDRY DECLARATIONS BY DECEDENTS. 
 
 SCOGGIN V. DALRYMPLE (1859). 
 
 7 Jones L. /j.6. 
 
 In order to establish the boundary of a grant under which he claimed, 
 the plaintiff introduced one Morris, who stated that he was the son of 
 Peter Morris, a chain-carrier at the survey of the entry for the 
 "'■'' grant; that his father, who was dead when the witness testified, 
 had pointed out to him a corner as the third corner, and told him that 
 there were other corners, which he (witness) could find in certain direc- 
 tions ; that he made search and found marks, which he has since known, 
 and that he pointed them out on the survey of the disputed land. The 
 survey of the land was made partly by the information of Morris, and 
 found to correspond mainly with his statement as to the first line and 
 corner. The defendant's counsel objected to the declarations of Peter 
 Morris, unless he showed the line or corner at the time; but the Court 
 admitted the whole statement, and the defendant excepted. 
 
 Manly, J. : "Traditionary evidence has long been received by the 
 Courts of North Carolina in questions of private boundaries, as well as 
 public. This has been recognized by the Judges as a departure from the 
 
 18 — Compare the authorities cited in W., § 1530. 
 
1^0. 313. 6. SUNDRY decedents' declarations. 295 
 
 rules of the common law, but, nevertheless, it has been adhered to with- 
 out deviation. It is now settled that hearsay from a deceased person is 
 competent in questions of boundary between private estates. The neces- 
 sity for such a departure from the common law principle grew out of the 
 inartificial manner in which the lands of the State were originally sur- 
 veyed and marked, making it necessary, in order to fix the position of 
 the respective parcels to resort more frequently to tradition, and to give 
 this kind of evidence greater efficiency by enlarging its limits. What- 
 ever may have been the reason, this extended use of hearsay, according 
 to the rule above laid down, is now firmly established. 
 
 "The precise point, and the only one presented in the bill of excep- 
 tions, is whether the declaration of a deceased person is admissible to 
 establish a corner tree, which is not in view at the time of the declara- 
 tion, but the position of which is described by the declarant, so that it is 
 found by a witness. We can perceive no reason why such testimony is 
 not admissible. The hearsay becomes definite by the aid of the witness, 
 who following the directions given, finds the tree, and while it might be 
 considered as of doubtful admissibility, disconnected from the evidence of 
 the living witness, yet, aided by that, it seems to be clearly competent."^'" 
 
 CARVER v. JACKSON dem. ASTOR (1830). 
 
 4 Pet. J, 80, 84. 
 
 Story, J.: "The action is ejectment, brought upon several demises; 
 and among others, upon the demise of John Jacob Astor. . . . Both 
 parties claim under Mary Philipse, who, it is admitted, was 
 seised of the premises in fee, in January, 1758. Some of 
 the counts in- the declaration are founded upon demises made by the 
 children of Mary Philipse, by her marriage with Roger Morris; and 
 one of them is upon the demise of John Jacob Astor, who claims as 
 a grantee of the children. . . . The next exceptions of the defendant 
 grew out of the non-production of the lease recited in the deed of 
 marriage settlement, and of the insufficiency of the evidence to estab- 
 
 19 — Field, C. J., in Morion v. Folger, own land: "It must te presumed to have 
 
 IS Cal. 275 (i860): "[The authorities] been their interest to extend the boundaries 
 
 show the general doctrine which will be' of the lot, and their declarations in favor 
 
 found to prevail in the majority of the of their interest were clearly not admissi- 
 
 American States. By them it is clear that ble." 
 
 the declarations on a question of boundary Hubbard, J., in Daggett v. Shaw, $ Mete. 
 of a deceased person, who was in a situa- 226 (1842): "Declarations of ancient per- 
 tion to be acquainted with the matter, and sons, made while in possession of land 
 who was at the time free from any inter- owned by them, pointing out their bound- 
 est therein, are admissible, and whether the aries on the land itself, and who are de- 
 boundary be one of a general or public ceased at the time of the trial, are admis- 
 interest, or be one between the estates sible in evidence, where nothing appears 
 of private proprietors." to show that they were interested in thus. 
 
 Richardson, C. J., in Shepherd v. Thomp- pointing out their boundaries." 
 
 son, 4 N. H. 215 (1827), excluding declara- Compare the authorities cited in W., 
 
 tions as to the boundary of the declarants' §§ 1563-1570. 
 
296 HEARSAY rule: (b) exceptions. No. 313. 
 
 lish either its original existence, or its subsequent loss. . . . We are 
 of opinion, not only that the recital of the lease in the deed of mar- 
 riage settlement was evidence between these parties of the original 
 existence of the lease, but that it was conclusive evidence between 
 these parties of that original existence; and superseded the necessity 
 of introducing any other evidence to establish it. . . . It is laid down 
 generally, that a recital of one deed in another binds the parties and 
 those who claim under them. Technically speaking, it operates as an 
 estoppel, and binds parties and privies; privies in blood, privies in 
 estate, and privies in law. But it does not bind mere strangers, or those 
 who claim by title paramount the deed. It does not bind persons claim- 
 ing by an adverse title, or persons claiming from the parties by title 
 anterior to the date of the reciting deed. Such is the general rule. But 
 there are cases in which such a recital may be used as evidence even 
 against strangers. If, for instance, there be the recital of a lease in a 
 deed of release, and in a suit against a stranger the title under the 
 release comes in question, there the recital of the lease in such release 
 is not per se evidence of the existence of the lease; but if the existence 
 and loss of the lease be established by other evidence, there the recital 
 is admissible as secondary proof in the absence of more perfect evi- 
 dence, to establish the contents of the lease; and if the transaction be 
 an ancient one and possession has been long held under such release 
 and is not otherwise to be accounted for, there the recital will of itself 
 materially fortify the presumption from lapse of time and length of 
 possession of the original existence of the lease."^" 
 
 Statute: Massachusetts: St, 1898, c. 535, Rev. L. 1902, c. 175, §66; 
 "No declaration of a deceased person shall be excluded as evidence on 
 the ground of its being hearsay, if it appears to the satisfaction 
 * of the judge to have been made in good faith before the begin- 
 ning of the suit and upon the personal knowledge of the declarant."^^ 
 
 7. REPUTATION. 
 
 a. Landed Rights and Liabilities. 
 
 REGINA V. BEDFORDSHIRE (1855). 
 
 4E.&B. 535. 
 
 On a presentment that a public common bridge was out of repair 
 
 and that the inhabitants of the county ought to repair it, evidence of 
 
 reputation was tendered that the lords of three manors in the 
 
 county ought by custom to repair certain different parts of the 
 
 bridge, and not the inhabitants. 
 
 20 — Compare the authorities cited in W., 21 — Compare the authorities cited in W., 
 
 S 1573- § 1576. 
 
No, 315. 7. REPUTATION. 297 
 
 1 
 
 Campbell, L. C. J. : "The question which we have to determine in 
 this case is, Whether at the trial of an indictment for non-repair of a 
 public bridge, with a plea that third persons are bound to repair the 
 bridge, ratione tenures, evidence of reputation be admissible. The law 
 of England lays down the rule that ,on the trial of issues of fact before 
 a, jury, hearsay evidence is to be excluded, as the jury might often be 
 misled by it ; but makes exceptions where a relaxation of the rule tends 
 to the due investigation of truth and the attainment of justice. One 
 of these exceptions is where the question relates to matters of public 
 or general interest. The term 'interest' here does not mean that which 
 is 'interesting' from gratifying curiosity or a love of information or 
 amusement, but that in which a class of the community have a pecu- 
 niary interest, or some interest by which their legal rights or liabilities 
 are affected. The admissibility of the declarations of deceased persons 
 in such cases is sanctioned, because these rights and liabilities are gen- 
 erally of ancient and obscure origin, and may be acted upon only at 
 distant intervals of time; because direct proof of their existence there- 
 fore ought not to be required; because in local matters, in which the 
 community are interested, all persons living in the neighborhood are 
 likely to be conversant ; because, common rights and liabilities being 
 naturally talked of in public, what is dropped in conversation respect- 
 ing them may be presumed to be true ; because conflicting interests would 
 lead to contradiction from others if the statements were false; and 
 thus a trustworthy reputation may arise from the concurrence of many 
 parties unconnected with each other, who are all interested in investi- 
 gating the subject. But the relaxation has not been, and ought not 
 to be, extended to questions relating to matters of mere private interest ; 
 for respecting these direct proof may be given, and no trustworthy repu- 
 tation is likely to arise. We must remark, however, that, although 
 a private interest should be involved with a matter of public interest, 
 the reputation respecting rights and liabilities affecting classes of the 
 community cannot be excluded, or this relaxation of the rule against 
 the admission of hearsay evidence would often be found unavailing. 
 
 "Let us now upon these principles examine whether the issue joined 
 on the record raises a question on which evidence of reputation ought 
 to be admitted. It does involve matter of private right, viz.: whether 
 certain lands are burdened with the charge of repairing certain arches 
 of this bridge; a matter of great importance to the owners of these 
 lands. But does it not likewise relate to matters of public and general 
 interest within the received legal meaning of these words? All the 
 inhabitants of the county of Bedford who have any property liable to 
 be assessed to the county rate have an interest in the question whether 
 the bridge is to be repaired by the county, or whether the county is 
 exempted from this burden, the obligation to repair it lying upon the 
 owners of certain lands ratione tenures. The question therefore is almost 
 
298 HEARSAY rule: (bJ exceptions. No. 315. 
 
 sure to be discussed in the neighborhood; and a true reputation upon 
 the subject is likely to prevail."^ 
 
 HARRIMAN v. BROWN (1837). 
 
 8 Leigh 70J. 
 
 Writ of right for two hundred acres of land; the writ was brought 
 by John Harriman against Matthew D. Brown. By the depositions of 
 Lewis Jones, it appeared that in December 1795 his father moved 
 to the land of Shadrach Harriman on the Great Kanawha river, 
 in what was then Kanawha county; that his father lived on this land 
 about seven years, and whilst living on it, built a cabin and cleared some 
 land; that Shadrach Harriman was then dead, and David Milburn, 
 who married his widow and acted as guardian for Harriman's children, 
 leased the land to the witness's father; that while his father lived on 
 the land, Milburn shewed to his father particular trees as Harriman's 
 corners, and it was then well understood in the country that those trees 
 were Harriman's corners. The witness stated his belief that he 
 knew the corners of Harriman's land well, especially the front or river 
 corners. The lower front or river corner, he said, was a black wal- 
 nut tree, which stood just below the mouth of Plantation creek, 
 which walnut tree was then, by almost every person in the country 
 who knew anything about the land surveys, called and believed to be 
 Washington's upper front corner, it being marked with the initials of 
 his name, viz. G. W. At the time of giving this deposition, the wit- 
 ness's father was dead. By the deposition of William Arbuckle it 
 appeared that the witness, after stating that he always heard that Wash- 
 ington's upper corner was a black walnut with G. W. on it, and that 
 Harriman's lower corner was Washington's upper corner, was asked 
 by what means he ascertained that walnut to be Harriman's corner; 
 and his answer was, that he was told by Reuben Slaughter that it 
 was Washington's upper corner, and from the common report of the 
 country he ascertained that Washington's upper corner was Harri- 
 man's lower corner. 
 
 1 — Seymour, J., in Robinson v. Dew- modus; a boundary between counties, par- 
 hurst, 15 C. C. A. 466, 68 Fed. 336 (1895): ishes, or manors; the limits of a town; a 
 "The exception raises a question regarding right of common; a prescriptive liability to 
 that exception to the general rule exclud- repair bridges; the jurisdiction of certain 
 ing hearsay evidence which permits such courts, — matters in which the public is 
 evidence to be given, under certain limita- concerned, as having a community of in- 
 tions, in cases of ancient boundaries. The terest, from residing in one neighborhood, 
 exception, as it originated in the English or being entitled to the same privileges, 
 courts, was confined to such boundaries or subject to the same liabilities, — common 
 as were matters of public concern, and reputation and the declarations of deceased 
 was part of a larger exception to the rule. persons are received, if made, ante litem 
 On questions respecting the existence of motam, by persons in a position to be prop- 
 manors; manorial customs; customs of erly cognizant of the facts." 
 mining in particular districts; a parochial , 
 
JNO. 316, 7. REPUTATION. 299 
 
 Tucker, P.: "In this case it became important to establish the 
 identity of a black walnut, which the tenant contended was the begin- 
 ning corner of Harriman's patent, under which the demandant claimed. 
 His patent call is to adjoin the upper end of Washington's survey, at a 
 large black walnut. Now the acknowledged upper boundary of Wash- 
 ington was about 565 poles, or considerably more than a mile and a 
 jhalf, below the black walnut contended for. And hence it became neces- 
 sary to ascertain whether this black walnut was the tree referred to in 
 the survey; for if so, it would control the call for Washington's line, 
 upon the well established principle that natural or artificial boundaries, 
 "which are the objects of the senses, must control the call for ideal 
 boundaries, or for lines which are often matters of conjecture and 
 always liable to be mistaken, and particularly where (as was the case 
 here) the upper line of Washington was a protracted line. See Baxter 
 V. Evett's lessee, 7 Monroe 329, 333, 334. In order then to establish 
 the fact that the black walnut was the reputed corner o£ Harriman, and 
 that in making the survey it was by mistake supposed to be Washing- 
 ton's upper corner, the tenant introduced the depositions of Lewis Jones, 
 Benjamin Jones and William Arbuckle. To these depositions the de- 
 mandant objected, . . . that evidence of reputation as to boundary is in- 
 admissible, and that for this reason also the testimony introduced was im- 
 proper. Questions of boundary, after the lapse of many years, become of 
 necessity questions of hearsay and reputation. For boundaries are arti- 
 ficial, arbitrary, and often perishable ; and when a generation or two have 
 passed away, they cannot be established by the testimony of eye-wit- 
 nesses. In such cases, therefore, it becomes necessary to look to repu- 
 tation, or depend upon hearsay evidence of the former existence and 
 actual locality of an artificial boundary. . . . Because we have not 
 manors, shall we therefore lose the benefit of the rule which considers 
 boundary as matter of reputation, and permits hearsay evidence of 
 its locality? If a like state of thing exists among us, if the principle 
 will be found to apply in its utmost strictness, shall we reject the evi- 
 dence because the case is not identical? By no means. What then is 
 the avowed principle on which the distinction rests in the English courts ? 
 . . . 'Evidence of reputation upon general points is receivable, because 
 all mankind being interested therein, it is natural to suppose that they 
 may be conversant with the subjects, and that they would discourse 
 together about them, having all the same means of information.' (per 
 Lord Kenyon [in Morewood v. Wood, 14 East 329]. What language 
 •can be more appropriate to the case of land adventurers in our western 
 country? That country was covered with entries and surveys between 
 fifty and sixty years ago, and it was often many years after a survey 
 was made, before the tracks taken up were settled by their owners. 
 Thousands have never yet seen their lands. The impossibility, in in- 
 numerable instances, of proving marked corners by eye-witnesses is 
 apparent. What is to supply that lost evidence? If reputation is admis- 
 sible to establish the boundaries of a manor, because all the, tenants of 
 
300 HEARSAY RULE : (b) EXCEPTIONS. No. 316. 
 
 the manor are interested therein, and are naturally conversant about 
 the boundary, and may be presumed to discourse together about it, 
 what shall we say in the case of our wild lands, which were covered 
 with early adventurers, whose chief concern was to make themselves 
 acquainted with the lines and corners of all around them? Every one 
 who knows anything of the history of that country, must know the 
 deep interest and familiar knowledge which the early settlers possessed 
 in relation to the corners and boundaries and localities, not only of their 
 own particular tract, but of almost every tract within range of their 
 settlement. Every one knows that such subjects were not only the 
 familiar topics of conversation, but that they were the all-absorbing 
 topics. I will venture to conjecture that for one discussion in private con- 
 versation as to the boundaries of an English manor, there have been a 
 hundred animated and interested debates about the situation of a corner 
 tree in our western counties. I take it, therefore, that every motive 
 for the admission of hearsay testimony as to boundary in case of a 
 manor applies with equal force to its admission in questions of boundary 
 with us."^ 
 
 b. General History. 
 
 STEYNER V. DROITWICH (1696). 
 
 Skinner 623, i Salk. 281. 
 
 "Camden's Britannia was offered in evidence to prove a reputation 
 ninety-two years ago that salt ought to be made only at the three pits of 
 the Burgesses [of Droitwich] and that all others were excluded. 
 '''■* And it was said that the sayings of antient persons who are dead is 
 always allowed, and this amounts to as much as the saying of an old man 
 at least, and that Camden with a publick person, being historiographer 
 Royal, etc., and that a gravestone had been allowed as evidence. Sed 
 non allocatur; for if one part of Camden be allowed, another part ought 
 to be, and if Camden, then another historian as well as him, and there 
 would not be any certainty. . . . And the court said that an history may 
 be evidence of the general history of the realm, but not of a particular 
 custom; and therefore secundum subjectam materiam it may be good 
 evidence or not."^ 
 
 2 — Compare the authorities cited in W., and public notoriety may indeed be proved 
 
 §§ 1 586-1 587. by reputation, and that reputation may be 
 
 3 — L. C. J. Jeffreys, in Lady Ivy's Trial, established by historical works of known 
 10 How. St. Tr. 5S5, 625 (1684), reject- character and accuracy. But evidence of 
 jng a history offered to show the date of this sort is confined ... to cases where 
 Charles V's abdication and Philip and from the nature of the transactions, or 
 Mary becoming king and queen of Spain, the remoteness of the period, or the pub- 
 over a century before: "Instead of records, lie and general reception of the facts, a 
 the upshot is a little lousy history. . . . just foundation is laid for general confi- 
 Is a printed history, written by I know not dence." 
 who, an evidence in a court of law?" Compare No. 636, post, and the authori- 
 
 Story, J., in Morris v. Lessees, 7 Pet. ties cited in W., §§ IS97-8. 
 588 (1833): "Historical facts of general 
 
No. 318. 7. REPUTATION. 301 
 
 c. Marriage. 
 
 BREAD ALB ANE CASE (1867). 
 L. R. I H. L. Sc. 199. 
 
 The facts have been already given ante No. 192. 
 
 Lord Cranworth : "By the law of England, and, I presume, of all 
 other Christian countries, where a man and woman have long 
 "■'■*' lived together as man and wife, and have been so treated by 
 their friends and neighbours, there is a prima facie presumption that they 
 really are and have been what they profess to be. If after their deaths 
 a succession should open to their children, any one claiming a share in 
 such succession as a child would establish a good prima facie case by 
 showing that his parents had always passed in society, as man and 
 wife, and that the claimant had always passed as their child. If the 
 validity of the parents' marriage should be disputed, it might become 
 necessary for the person claiming as their child to establish its validity, 
 and, inasmuch as in England all marriages are solemnized in public and 
 publicly recorded, it is reasonable to require the claimant to give posi- 
 tive evidence of its celebration, or else to explain why he is unable to 
 do so. The principle is the same in Scotland; but as marriage there 
 is not necessarily celebrated in public or recorded, it is much more 
 probable than it would be in England that there may have been a 
 marriage, but that there may be no means of giving direct proof of 
 it. Those who have to decide, after the death of parents, on the le- 
 gitimacy of children must much oftener than in England have to rely 
 solely on the prima facie evidence afforded by the conduct of the par- 
 ties towards one another and of their friends and neighbors towards 
 them. This sort of evidence is spoken of in Scotland as habite and 
 repute. Persons are sometimes said to be married persons by habite 
 and repute. I agree, however, with the argument of the Appellant 
 (speaking with deference to those who think otherwise), that this is 
 an inaccurate mode of expression. Marriage can only exist as the result 
 of mutual agreement. The conduct of the parties and of their friends 
 and neighbors, in other words, habite and repute, may afiford strong, 
 and, in Scotland, attending to the laws of marriage there existing, un- 
 answerable evidence that at some unascertained time a mutual agree- 
 ment to marry was entered into by the parties passing as man and 
 wife. I cannot, however, think it correct to say that habite and repute 
 in any case make the marriage."* 
 
 4 — Lawrence, J., in Ringhouse v. Keen- dence of reputation in regard to death, 
 
 er, 49 in. 471 (1869), admitting testimony unless the reputation came from family 
 
 of friends that "his death was announced relatives, would sometimes render the proof 
 
 in the newspapers and he was spoken of of death impossible, though there might 
 
 by his acquaintances as dead": "In a exist no doubt of the fact, and thus defeat 
 
 population as unstable as ours, and com- the ends of justice." 
 
 prising so many persons whose kindred are Compare the authorities cited in W., %% 
 
 in distant lands, the refusal of all evi- 1602, 1605, and Nos. 192-197, ante. 
 
302 HEARSAY rule: (b) exceptions. No. 319. 
 
 d. Moral Character.^ 
 
 BUCKLIN V. STATE (1851). 
 20 Oh. 23. 
 CaldwelLj J. : "The term 'character,' when more strictly applied, re- 
 fers to the inherent qualities of the person, rather than to any opinion 
 that may be formed or expressed of him by others ; the term 'repu- 
 *'■'■'' tation' applies to the opinion which others may have formed and 
 expressed of his character ; so that, as has been remarked in some of the 
 books, when treating on this subject, a man's character may really be 
 good when his reputation is bad, and, on the other hand, his reputation 
 may be good when his character is bad. But, as we havei before inti- 
 mated, the terms when used in connection with this subject are generally 
 used in contradiction to this distinction, — the term 'general character' be- 
 ing used in legal signification, as it is frequently used in common par- 
 lance, to express the opinion that has generally obtained of a person's 
 character, the estimate the community generally has formed of it. When 
 you ask a witness, then, in this sense of the term, what a man's general 
 character is for truth and veracity, he is called on to answer as to what 
 opinion is generally entertained and expressed of him by those acquainted 
 with him." 
 
 PICKENS V. STATE (1884). 
 61 Miss. 566. 
 Campbell, C. J. : "The testimony of one Garrett was a potent factor 
 in producing the verdict of guilty. The accused sought to impeach Gar- 
 rett, who was a witness for the State, by evidence that his general 
 ^ reputation for truth and veracity was bad, and in order to do this 
 
 he produced a witness. Miller, and asked him if he knew the general repu- 
 tation for truthfulness of Garrett in the community in which he lives? 
 The witness replied, 'That's a right delicate question to answer,' and then 
 counsel explained the question to mean, 'if he (witness) knew what Gar- 
 rett's neighbors generally thought of him as a man of truth and veracity,' 
 and insisted on an answer to the question thus explained. At this junc- 
 ture the Court stated to the witness that 'general reputation meant what 
 a majority of the people in Garrett's community, or the people with whom 
 he was most conversant, say of his character for truth and veracity.' To 
 this statement of the Court the accused excepted, and the witness, thus in- 
 structed by the Court, answered, 'I cannot say what a majority say of 
 him in that respect.' Other witnesses produced by the accused immedi- 
 ately afterward severally replied that they did not know Garrett's general 
 reputation for truth and veracity. One of them answered he could not say 
 'what a majority of the people think of him (Garrett). General reputation 
 consists in what is generally thought of one by those among whom 
 
 5 — For other rules about Character, see Nos. 21, 33, 116, 120, ante, and No. 
 
 <i2a. toxt. 
 

 No. 321. 7. REPUTATION. 303 
 
 he resides and with whom he is chiefly conversant. 'Common opinion'; 
 'that in which there is general concurrence'; 'the prevaiHng opinion in 
 that circle where one's character is best known' ; 'what is generally said 
 by those among whom he associates and by whom he is known' ; 'common 
 report among those who have the best opportunity of judging of his habits 
 and integrity'; 'common reputation among his neighbors and acquaint- 
 ances' — are so many forms of expression by which an effort has been 
 made to define wherein consists general reputation. ... It was not nec- 
 essary for him [the witness] to have heard a majority, or any given 
 proportion, of that undefined and undefinable circle, designated as the 
 'neighborhood' or 'community,' say what they thought of G. . . . While 
 a witness should be cautious on this subject, and not be encouraged to 
 testify Jhat he is acquainted with the general reputation of another unless 
 he knows the generally prevalent sentiment of those most conversant with 
 him, he is not to be repressed by telling him he must know what a major- 
 ity _say of him about whom he is called to testify. . . . He may have heard 
 a sufficient number express themselves to be willing to say he knows the 
 general concurrence in one view of a number great enough to be re- 
 garded as a fair index to the community. One may know the general 
 reputation of Sargent S. Prentiss as a matchless orator, although he has 
 heard a small proportion of those who felt the thrill of his unrivalled 
 eloquence say what they thought of him."° 
 
 ATLANTIC & BIRMINGHAM R. CO. v. REYNOLDS (1903). 
 
 11; Ga. 47, 43 S. E. 456. 
 
 Fish, J. : "Reynolds sued the Waycross Air Line Railroad Company 
 
 for damages alleged to have been sustained by him in consequence of in- 
 
 i juries received by the falling of a telephone pole, forming a part 
 
 \i °^^ of a telephone line owned and operated by the defendant company, 
 
 ^ which pole he, in the course of his employment by the company as a line- 
 
 4 man, had ascended for the purpose of repairing a broken telephone wire. 
 One of the grounds of the motion for a new trial alleges that the court 
 J erred in 'sustaining the objections of plaintiff's counsel to defendant's 
 „ . witnesses C. J. Hendry, John Hayes, J. B. Quarterman, and Dan Hall, 
 SX^ testifying that, while they did not know plaintiff's reputation where he 
 .i;V lived in Waycross, yet they were well acquainted with him and knew his 
 VT ^ general reputation up and down the Waycross Air Line Railroad, where 
 Or ^ he worked, which was bad, and from that they would not believe him on 
 ' *V N oath.' We think this ground was well taken. ... As the general repu- 
 I . tation of a man is usually formed in the neighborhood where he spends 
 \j > most of his time, and most frequently comes in social and business contact 
 ^ V with his fellow-men, it is usual to limit the inquiry as to a witness' gen- 
 «i eral character to his general reputation in the neighborhood where he 
 \ lives ; that is, where he has his home. We do not think, however, there 
 ^5 is any hard and fast rule which requires this to be done in every possible 
 
 6 — Compare the authorities cited in W., §§ 1611-1614. 
 
304 HEARSAY rule: (b) exceptions. No. 321. 
 
 case. The very reason for so limiting the inquiry generally may be a 
 good reason for allowing more latitude in an exceptional case. The 
 reason for so limiting the inquiry generally, as already indicated, is 
 that the place in which to ascertain a man's true reputation is the place 
 where people generally have had the best opportunities of forming a 
 correct estimate of his character. It is obvious that this may not, in 
 every instance, be the neighborhood where a man's home is situated. . . . 
 We apprehend that there may be cases in which a person has established 
 no general reputation in the immediate neighborhood of his home, but 
 has established such a reputation elsewhere. This may arise from the 
 fact that his home is located in one place and his daily business or work 
 is carried on in another, in which latter place he spends nearly all of his 
 time, and hence is well known to people generally, while he rarely comes 
 in social or business contact with people, outside of his family circle, in 
 the neighborhood of his home."^ 
 
 FOSTER V. BROOKS (1849). 
 6 Ga. 2po. 
 NiSBET, J., excludingjreputation as _eyidence_ofJijisajiitjrj^^Tfjre^^ 
 tion of insanity is competent, then reputation of sanity must be also. By 
 this kind of evidence a fool may be proved a wise man, and a 
 philosopher a fool. Public opinion declared Copernicus a Tool 
 when he promulgated the planetary system, and Columbus a_fool, when 
 he ahnouiicSnhe sublime idea of a New World. Hazardous in the 
 extreme would it be to the rights of parties under the lawTTF^fhey were 
 allowed to depend upon the opinion of a neighborhood of the sanity of 
 individuals. Hearsay evidence is excluded because a witness ought to 
 bq subjected to cross-examination, that being a test of truth. It ought 
 to appear what were his powers of perception, his opportunities of ob- 
 servation, his attentiveness in observing, the strength of his recollection, 
 and his disposition to speak the truth."* 
 
 8. OFFICIAL STATEMENTS. 
 REX V. AICKLES (1785). 
 I Leach Cr. L. jd ed. 436. 
 Indictment for returning from transportation beyond seas within 
 seven years after discharge from jail. It was held incumbent on the 
 prosecutor to prove the precise day on which the prisoner was 
 " discharged; and for this purpose Mr. Nezvman, clerk of the papers 
 
 of the prison, produced a daily book, which he kept, containing entries 
 of the names of all the debtors and criminals who are brought into the 
 prison, and the times when they were discharged: but it appeared that 
 those entries were not made from Mr. Newman's own knowledge of the 
 
 7 — Compare the authorities cited in W., 8 — Compare the authorities cited in W., 
 
 §§ 161S, 1616. §§ 1620, 1621. 
 
No. 324. 8, OFFICIAL STATEMENTS. 305 
 
 facts, but that he generally made them from the information of the turn- 
 keys, and frequently from the turnkey's indorsements on the back of war- 
 rants, which warrants were afterwards regularly filed. It was contended 
 by the prisoner's counsel, Mr. Garrow, that these were not original en- 
 tries of the facts; and therefore that the turnkey himself by whom 
 Aickles was discharged, or the original minute from which the entry 
 of his discharge had been made, should be produced, because they alone 
 ■were the best evidence upon this subject, and it was in the prosecutor's 
 power to produce them. It was compared to the production of a trades- 
 man's ledger in order to prove the delivery of goods, instead of pro- 
 ducing the original memorandum or day-book from which the ledger 
 had been posted; and it was argued, that no credit could be given to 
 entries made entirely from hearsay and information, and therefore they 
 ought not to be received as evidence. 
 
 Per Curiam: "Thg_law-j£p.os£s _such_ a_ confidence in public officers 
 that it presumes they w^ll jlischarge their several trusts with accuracy 
 and fidelity ;"and therefore whatever acts they do in discharge of their 
 public duty may be given in evidence and shall be taken "to be true, 
 under such a degree of cautigiLas the nature and circumstances of each 
 case may~^ppeaf To require. . . . In the present c ase Mr. N. Jjasno 
 priylEaateiStrwEatsafiyer in-tliis-book~tainduce him to make factitious 
 .entries inJt. .He. is, a pubUc pfiicer recording a. public transaction."' 
 
 STEWART v. ALLISON (1821). 
 6 S. & R. 327. 
 Smith Allison, the defendant in error, brought an action against 
 James Stewart, on a promissory note made by Holbach & Saunders, 
 in favor of Stewart, by whom it was indorsed. The pleas were 
 ""* non assumpsit and payment. On the trial, the plaintiff, in order 
 to prove notice to the indorser of non-payment by the makers of the 
 note, gave in evidence a protest made by a notary-public, under his offi- 
 cial seal, certifying that he had given such notice. The defendant then 
 produced the notary himself, who, on being sworn, testified, that the 
 protest was in the handwriting of his son, who was then on a voyage to 
 the West Indies; that he (the notary) did not give the notice himself, 
 that his son attended to this business for him, and that he had no knowl- 
 edge of the notice having been given to the indorser of the non-pay- 
 
 9 — Wayne, J., in Gaines v, Relf, 12 'H.ow. to be kept, partly because their contents 
 
 472, 570 (1851): "Such writings [those are of public interest and notoriety, but 
 
 which the law requires to be kept for the principally because they are made under 
 
 public benefit] are admissible in evidence the sanction of an oath of office, or at 
 
 on account of their public nature, though least under that of oificial duty, by ac- 
 
 their authenticity be not confirmed by the credited agents appointed for that purpose, 
 
 usual tests of truth, namely, the swearing Moreover, as the facts stated in them are 
 
 and the cross-examination of the persons entries of a public nature, it would often 
 
 who prepared them. They are entitled to be difficult to prove them by means of 
 
 this extraordinary degree of confidence sworn witnesses." 
 partly because they are required by law 
 
306 HEARSAY rule: (b) exceptions. No. 324. 
 
 ment by the makers, except what his son told him, who said he had 
 given the notice, and had written it in the protest, and this had been the 
 practice of doing business among the notaries. The counsel for the 
 defendant contended, that the protest, as explained by the witness, was 
 not evidence of notice to the indorser of non-payment by the makers. 
 The counsel for the plaintiff contended, that it was evidence of notice. 
 
 TiLGHMAN, C. J.: "It was very possible, that the jury might give 
 more credit to the official certificate, than to the oath of the notary; a 
 notary may be tampered with, after giving his certificate; or the jury 
 might think that the certificate and the parol evidence were not incon- 
 sistent. In my opinion then, the Court was right in telling the jury as 
 they did that the plaintiff was not entitled to recover, unless notice ol 
 non-payment was given to the defendant ; that the notarial certificate 
 was legal evidence, on which, together with the parol evidence, the jury 
 were to decide whether notice had been givn or not." 
 
 Gibson, J., dissenting: "Now put the case of a witness who has in 
 his direct examination sworn positively to a fact, but from whom, on 
 being cross-examined, it cornes, put that he personally knows nothing 
 about the matter, halving .obtained all his inforrnatjon f rom a. p erpnn on 
 wl^ose veractiy he thinks he can depend. Ought_not^the Court to direct 
 the jury that the whole of his evidence, taken with the explanation 
 given, .is^ incompetent and goes for nothing? . . . The assertion in a 
 [notary's] protest of a fact founded on hearsay, which would be in- 
 competent to be heard from a witness attending in the ordinary way, is 
 not made competent and legal by the Act of Assembly. . . . The Legis- 
 lature surely never intended to permit an officer to authenticate by his 
 certificate a fact to which he would not, after being examined touching 
 his means of knowledge, be permitted to swear. ... I hold the notary 
 competent to certify only what he personally knows to be true, and not 
 what he may conjecture to be so from the relation of others. . . . The 
 confidence supposed to be reposed in the truth and integrity of those 
 officers by the Executive who appointed them is the ground on which 
 the Legislature rested the substitution of their certificate for the ordi- 
 nary judicial evidence of the facts asserted in it; and it therefore never 
 could have intended to permit them to delegate this high personal trust 
 to a stranger, acting without oath or even official responsibility."^" 
 
 Sa. Official Registers and Records. 
 
 KENNEDY v. DOYLE (1865). 
 10 All. 161. 
 Gray, J.: "This action was brought against two sisters upon aa 
 agreement of both to pay money borrowed by them on their joint ac- 
 count from the plaintiff. One of them suggested her insolvency 
 """ and set up no other defence. The other pleaded infancy at the 
 time of the agreement. . . . The parties being at issue upon the point 
 
 10 — Compare the authorities cited in W., § 1633. 
 
No. 325. 8a. official records and registers. 307 
 
 whether the defendant was of age when she made the agreement, the 
 plaintiff, to prove that she was, offered a book, which was admitted to 
 be the church record of baptisms in a Roman Catholic church in Lowell, 
 regularly kept by McDermott, the priest of that church for a series of 
 years, produced from the custody of O'Brien, the present priest, into 
 whose hands it came upon the death of McDermott, and containing 
 the following entry in McDermott's handwriting, and signed by him: 
 '1837, December 17th. Baptized Joanna, born 12th, of Michael and 
 Mary Doyle. Sponsors, Jeremiah Kennedy and Bridget Doyle.' There 
 was also evidence that the defendant in this action was the Joanna 
 Doyle named in this record. It does not appear to have been denied 
 at the trial, and it was assumed at the argument, that the priest per- 
 formed the rite of baptism and made the entry upon the record in the 
 discharge of his ecclesiastical duty according to the rule and custom of 
 his church. But there was no evidence that he was a sworn officer, or 
 that the book was required by law to be kept ; and upon this ground the 
 defendant objected to its admission. The presiding judge, however, ad- 
 mitted it as competent evidence of the date of the baptism only. 
 
 "In England, a church record of baptisms, kept by a clergyman of 
 the Established Church is admissible, even before his death, accompa- 
 nied by evidence of the identity of the child, to prove the date of its 
 baptism; but not the time of its birth, because the clergyman has no 
 authority to make inquiry about the time of birth or any entry concern- 
 ing it in the register: Draycott v. Talbott (3 Bro. P. C. (2d ed.) 
 564) ; May v. May (2 Stra. 1073) ; Wihen v. Law (3 Stark. R. 63), and 
 other cases cited in Stark. Ev. (4th Eng. ed.) 299, note f. ; Doe v. 
 Barnes (i M. & Rob. 389). In the Church of England, from the time 
 of the Reformation, registers of baptisms, weddings, and burials were 
 kept by order of the Crown as head of that church; and in the words 
 applied by Lord Chief Baron Gilbert to the original order of Henry VIII. 
 on this subject, 'when a book was appointed by public authority it must 
 be a public evidence.' Gilb. Ev. (3d. ed.) yj. ... The English judges, ad- 
 hering to the principle of admitting in evidence as public documents 
 those registers only which the law required to be kept, have considered 
 all others as mere private memoranda, and have refused to admit regis- 
 ters regularly kept by dissenters unless supported by the testimony of 
 the person keeping them or other witnesses: Birt v. Barlow (i Doug. 
 171); Newham v. Raithby (i Phillim. R. 315); Ex parte Taylor (r 
 Jac. & Walk. 483; s. c. 3 Man. & Ry. 430 n.) ; Doe v. Bray (8 B. & C. 
 813; s. c. 3 Man. & Ry. 428); Whittuck v. Waters (4 C. & P. 375). 
 Vice Chancellor Shadwell refused even to admit an entry in the register 
 of the Roman Catholic chapel of the Sardinian ambassador in London 
 as evidence of the baptism of the ambassador's son: D'Aglie v. Fryer 
 (13 Law Journal, n. s. Ch. 398). 'The principle on which entries in 
 a register are admitted,' said Mr. Justice Erie in a recent case, 'depends 
 upon the public duty of the person who keeps the register to make such 
 
308 HEARSAY rule: (b) exceptions. No. 325. 
 
 entries in it, after satisfying himself of their truth.' Doe v. Andrews 
 
 (15 Q- B. 759)- 
 
 "Almost two centuries before the passage of the statute of Will. IV., 
 the founders of the Massachusetts Colony, though not less attached 
 than other Englishmen to their own forms of religious worship, had 
 the wisdom to perceive that it was more important for the civil govern- 
 ment to preserve exact records of the dates of births and deaths, than 
 of religious ceremonies from which they might be imperfectly inferred; 
 and that the importance of recording those facts did not depend on the 
 particular creed or church government of the individual, but applied 
 equally to the whole people. They accordingly left the baptism of the 
 living and the burial of the dead to the churches ; but by an ordinance of 
 1639 enacted 'that there be records kept of the days of every marriage, 
 birth and death of every person within this jurisdiction;' and similar 
 statutes have been ever since in force in Massachusetts. The record 
 of a marriage by the justice of the peace or minister, or the town clerk's 
 or registrar's record of births, marriages, and deaths, kept as required 
 by these statutes, or a duly certified copy of either, is held competent 
 evidence ; 2 Dane Ab. 296 ; Milford v. Worcester (7 Mass. 56) ; Com- 
 monwealth V. Norcross (9 Mass. 492). . . . Similar decisions have been 
 made in other States, generally upon the groimd of the record having 
 been kept in the performance of a duty imposed by law; and those 
 cases, in the reports of which no statute is referred to, may yet have 
 controlled by statute. . . . 
 
 "It is perfectly true that in this commonwealth the law makes no dis- 
 tinction between different sects of Christians, and the record of a 
 Roman Catholic priest is of no less weight as evidence than that of a 
 Congregational, or Protestant Episcopal, or any other minister. But 
 our law not requiring any record of baptisms, the church book offered 
 in evidence in this case, not having been kept under any requirement 
 of law, was not a public record, and would not, had the priest who 
 made the entries been still alive, have been admissible in evidence, un- 
 supported by his testimony ."1 
 
 Chief Baron Gilbert, Evidence, 24, 97 (ante 1726) : "Where the deed 
 needs enrolment, there the enrolment is the sign of the lawful execution 
 of such deed, and the ofiScer appointed to authenticate such deeds 
 ""^ by enrolment is also empowered to take care of the fairness and 
 legality of such deeds. . . . But where a deed needs no enrolment, there, 
 though it be enrolled, the inspeximus of such enrolment is no evidence; 
 because since the officer has no authority to enrol them, such enrolment 
 cannot make them public acts." 
 
 I — Compare the authorities cited in W., §§ 1642-1646, 
 
No. 328. 8a. official records and registers. 309 
 
 Thomas Starkie, Evidence, 412 (1824) : "It would be manifestly 
 inconsistent with the plainest principles of justice to admit such enrol- 
 ments to be evidence against those who have not acknowledged 
 ^ ' them, without proof of the execution of the deeds; . . . and al- 
 though it appears that an opinion once prevailed to this effect, yet it 
 seems to be so destitute of principle that it is not probable it would now 
 be acted upon." 
 
 EADY V. SHIVEY (1870). 
 40 Ga. 684, 686. 
 
 Ejectment. After offering the plaintiff's affidavits that the originals 
 of their title-deeds were not in their possession and were believed after 
 diligent search to be lost or destroyed, plaintiff's attorneys offered 
 * in evidence copies of deeds to said lot, duly certified from the 
 records, from Eady to Thomas Broddus, from Broddus to David Merri- 
 wether and others, a deed from them, the heirs of Broddus, to said 
 Smith, and from Smith to said Cook. Defendant's counsel objected to 
 these copies and they were rejected, upon the ground, (as was said in 
 argument,) that there was no oroof that such original deeds had ever 
 existed. 
 
 McCay, J.: "We think the Court erred in rejecting the copy 
 deeds. The affidavits conformed strictly to the forty-second rule 
 of Court. It is true, there was nothing in the affidavits affirming, 
 directly, the existence and genuineness of the originals. We are of the 
 opinion that this was proven 'prima facie,' by the certified copies from 
 the record. . . . Why should not the existence of a proper record be 
 evidence of the existence and contents of a lost original? To go to 
 record, a deed must be probated, either executed or acknowledged be- 
 fore a magistrate, or proven by the affidavit of one of the witnesses. 
 The very object of the record is to preserve a copy of the deed to be 
 Tiged if the original is lost or destroyed; and it would largely lessen the 
 uses of a record if it were necessary before it could be used to prove 
 the existence of the original by any other evidence. . . . Unless there be 
 forgery or false swearing, nothing but a genuine existing deed can go 
 ■upon the record properly, and the copy will show upon its face if the 
 requirements of the statute have been complied with. We recognize 
 fully the rule that the genuineness and existence of an original must 
 ba shown before the contents of it can be shown by secondary evidence. 
 But in our judgment this is done by evidence that there is a duly exe- 
 cuted record of what purported to be an original duly probated accord- 
 ing to law."^ 
 
 2 — Mills, J., in Womack v. Hughes, Litt. ex parte authentication which entitles it to 
 
 Sel. C. 291, 294 (1821): "The Acts direct- a place on its own record; nor is there 
 
 ing the mode of recording deeds do not any statutory provision which so directs, 
 
 direct that they shall thereafter be given within the recollection of the Court. But 
 
 in evidence in any court on the trial of the common-law principle relative to en- 
 
 an issue without any other proof than the rolled deeds has been uniformly applied by 
 
310 HEARSAY RULE : (b) EXCEPTIONS. No. 329. 
 
 Statutes, California, C. C. P. 1872, § 19 19: "A public record of a 
 private writing may be proved by the original record, or by a copy 
 thereof, certified by the legal keeper of the record." lb. § 1951 as 
 *"" amended by St. 1889, no. 45 : "Every instrument conveying or af- 
 fecting real property, acknowledged or proved and certified as provided in 
 the Civil Code" may be read "without further proof" ; "also, the original 
 record of such conveyance or instrument thus acknowledged or proved,, 
 may be read in evidence, with the like effect as the original instrument, 
 without further proof." 
 
 Georgia, Code 1895, §3628: a "registered deed shall be admitted in 
 evidence. . . . without further proof," unless the maker or heir or op- 
 ponent makes affidavit that it is a forgery, whereon an issue of genuine- 
 ness shall be tried. 
 
 Illinois, Rev. St. 1874, c. 30, § 20 : For deeds, etc., without the State 
 and within the United States or any Territory or dependency or the 
 District of Columbia, an acknowledgment or proof may be made "in 
 conformity with the laws of the State, Territory, dependency, or Dis- 
 trict where it is made" ; and "if any clerk of a court of record within 
 such State, Territory, dependency, or District shall under his hand and 
 the seal of such court certify" to the conformity of the acknowledgment, 
 or the conformity shall appear by the laws thereof, "such instrument,, 
 or a duly proved and certified copy of the record of such deed, mortgage, 
 or other instrument relating to real estate, heretofore or hereafter made 
 and recorded in the proper county, may be read in evidence as in other 
 cases of such, certified copies." 
 
 New York, C. C. P. 1877, § 935 : A duly recorded conveyance is prov- 
 able by the record or by a certified copy, "without further proof" ; unless 
 proof was taken on the oath of "an interested or incompetent witness."* 
 
 86, Official Reports and Returns, 
 
 ELLICOTT V. PEARL (1836). 
 10 Pet. 412, 441. 
 Ejectment for a tract of 1000 acres of land originally granted ta 
 James Kincaid. Story, J.: "The tenants, in order to prove the boun- 
 daries of the demandants' land, as laid down in the plat, and 
 '*''" claimed by them; gave in evidence the original plats and certifi- 
 cates of survey of Kincaid's two thousand and one thousand acre tracts ; 
 and then examined M'Neal, a witness of the demandants, who was first 
 
 this Court to deeds recorded according to are equally positive as to the time in 
 
 our statutes. It is not, however, every which the different acts ■ shall be done, 
 
 placing a deed upon record which makes Within these periods the recording oiB- 
 
 it a recorded deed. The statutes usually cers have authority to record the instru- 
 
 point out the officer or Court before whom ment; afterwards, such authority ceases." 
 the deed is to be acknowledged, what the 3 — Compare the authorities cited in W., 
 
 acknowledgment shall consist of, and how S§ 1648-1655, and Nos. 242-4, ante. 
 and to whom it shall be certified, and they 
 
No. 331. 8b. official reports and returns. 311 
 
 introduced to prove their boundary: who stated that the water courses, 
 as found on the ground, did not correspond with those represented on 
 the said plats: and after being examined by the demandants, for the 
 purpose of proving that the marks on the trees, claimed by them as the 
 corner and lines of their surveys, were as ancient as the said surveys, 
 and also as to the position and otherwise of the lines and corners 
 claimed by them, and represented on the plat made and used at the trial ; 
 stated, on the cross-examination of the tenaiA's counsel, that some of 
 the lines, marked to suit the calls of the said surveys, appeared to be 
 younger, and others, from their appearance, might be as old as the date 
 of the said plats. The demandants, to counteract this evidence, and 
 to sustain their claim, offered in evidence a survey, made out by M'Neal, 
 in an action of ejectment formerly depending between the same parties 
 for the same land, of which survey Pearl had due notice. The tenants 
 objected to the reading of the explanatory report accompanying this sur- 
 vey, and the Court refused to allow so much thereof as stated the ap- 
 pearance as to age and otherwise of the lines and corners to go in 
 evidence to the jury; and accordingly caused to be erased from, the plat 
 the words following, viz. 'ancient' (chops) ; — 'John Forbes, Jun., states 
 he cut the same letters and figures ;' — 'on the east side, the chops appear 
 to have been marked with a larger axe, than the chops on the beginning 
 tree;' — and then permitted the residue of the report and plat to go in 
 evidence. This constitutes the third exception of the demandants. 
 
 "We are of opinion, that there was no error in this refusal of the 
 Court. The evidence was inadmissible upon general principles. It 
 was mere hearsay. The survey, made by a surveyor, being under oath 
 [of office] is evidence as to all things which are properly within the 
 line of his duty. But his duty is confined to describing and marking on 
 the plat the lines, corners, trees, and other objects on the ground, and 
 to subjoin such remarks as may explain them. But in all other respects, 
 and as to all other facts, he stands, like any other witness, to be exam- 
 ined on oath in the presence of the parties and subject to cross-exami- 
 nation. ... It has never been supposed that if in such a survey the 
 surveyor should go on to state collateral facts, or declarations of the 
 parties, or other matters not within the scope of his proper official 
 functions, he could thereby make them evidence as between third per- 
 sons."* 
 
 JONES V. GUANO CO. (1894). 
 P4 Ga. 14, 20 S. E. 265. 
 Action on a promissory note for the price of guano. To prove the 
 quality, an analysis by the state chemist was offered. Lumpkin, J. : 
 "Section isssb of the Code declares that 'a copy of the official 
 analysis of any fertilizer or chemical, under seal of the depart- 
 ment of agriculture, shall be admissible as evidence in any of the courts 
 
 4 — Compare the authorities cited in W., §§ 1665, 1672. 
 
312 HEARSAY rule: (b) exceptions. No. 331. 
 
 of this state, on the trial of any issue involving the merits of said fer- 
 tilizer.' As it requires express legislation to render any copy of an 
 analysis of a fertilizer admissible as original evidence, necessarily the 
 terms o^ the law must be fully and exactly complied with, in order to 
 obtain the benefit of its provisions. Therefore, the analysis must be 
 an official one, or a copy of it taken from the records of the department 
 of agriculture cannot be introduced. As we understand our system for 
 the inspection and analysis of commercial fertilizers, samples are taken 
 by the inspectors, and submitted for analysis to the state chemist, who 
 makes reports to the commissioner of agriculture, which reports are re- 
 corded in the office of the latter. Analyses thusi made are official.. We 
 know of no law making official an analysis by the state chemist at the 
 instance or request of a purchaser of fertilizers. Indeed, as we under- 
 stand it, the state chemist is under no obligation to make an analysis for 
 any private person at all. If he does so, it is simply a matter of cour- 
 tesy; and although he may report an analysis thus made to the depart- 
 ment of agriculture and it may be entered upon the records of that 
 department, this will not give to that analysis an official character by 
 virtue of which a copy of it will be rendered admissible as evidence 
 in the courts."^ 
 
 8c. Official Certificates. 
 
 OMICHUND V. BARKER (1744). 
 
 Willes 538, 549. 
 
 WiLLES, L. C. J. (disapproving the latter part of the ruling in 
 Alsop V. Bowtrell (Cro. Jac. 541), where a foreign clergyman's certifi- 
 cate was admitted to show not only his performance of the mar- 
 **'' riage ceremony, but also the parties' subsequent cohabitation) : 
 "For our law never allows a certificate of a mere matter of fact, not 
 coupled with any matter of law, to be admitted as evidence. Even the 
 certificate of the King under his sign manual of a matter of fact (ex- 
 cept in one old case in Chancery) has been always refused. . . . Be- 
 sides, it is not the best evidence that the nature of the thing will admit ; 
 but the proper and usual evidence of a fact arising beyond sea is an 
 affidavit or deposition taken before a public notary and certified to be 
 so under the seal of the place or the principal officer of the place ; which 
 had been admitted as evidence in some cases, where it would be too 
 expensive, considering the nature of the cause, to take out a special 
 commission [for a deposition]."* 
 
 S — Compare the authorities cited in W., extra-official, can have no higher weight 
 
 5 1664. than that of a private citizen, and is there- 
 
 6 — DevenSj J., in Com. v. Richardson, fore inadequate to make the proof re- 
 
 142 Mass. 74, 7 N. E. 26 (1886): "As quired." 
 
 to matters which the officer is not author- Compare the authorities cited in W., § 
 
 ized by law to attest, his certificate is 1674. 
 
No. 333. 8c. OFFICIAL CERTIFICATES. 313 
 
 TOWNSLEY V. SUMRALL (1829). 
 
 2 Pet. 170, 178. 
 
 Story, J.: "The original action was brought by the defendant in 
 error against the plaintiff in error, as one of the firm of Thomas F. 
 Townsley & Co., to recover the amount of a bill of exchange, 
 "**'* drawn, at Maysville in Kentucky, on the 27th of November, 1827, 
 by one Richard S. Waters, on Messrs. Townsley & Co., at New Orleans, 
 at 120 days after date for $2000, payable to Sumrall or order, which had 
 been dishonored by the drawees. . . . The bill of exceptions stated, that 
 the plaintiff offered in evidence the bill of exchange and the protest of 
 the notary public at New Orleans, to which evidence the defendant 
 objected, but the court admitted the testimony. . . . The first question 
 that arises is upon the admissibilit y of thp pt-fvtpgt n f the nnt^ry pnhlic. 
 at New Orlfans , as p rnrif nf the disjionour of the bill. The protest is 
 for non-payment for want of funds; and it does not appear that there 
 had been any prior protest for non-acceptance. Bills of exchange pay- 
 able at a given day after date, need not be presented for acceptance 
 at all; and payment may at once be demanded at their maturity. 
 The objectio n now made does, not turn juggiL thj^ point, but upon the 
 
 point,_that the present is no t a foreig n, but an inlanri hill nf pyrhangp;^ 
 
 being dr awn in-K£Jitucky^_ and payable a t New Orleans in Louisiana ; 
 an d that a notarial protest is not in such rases pviHenre of a deniand 
 and refu sal nf paympnt We do not think it necessary in this case to 
 decide, whether a bill drawn in one state upon persons resident in an- 
 other state, within the union, is to be deemed a foreign, or an inland 
 bill of exchange. . . . Itjs__adjnitted, that-in-respect-ta foreign-biUs-of 
 exc hange the notarial certificate of protest is of- itself sufficient proof 
 of the dishonour of a bill without a ny auxiliary evidence. It has long 
 been adopted into the jurisprudence of the common law, upon the ground 
 that such protests are required by the custom of merchants; and being 
 founded in public convenience, they ought, every where, to be allowed 
 as evidence of the facts which they purport to state. The negotiability 
 of such bills, and the facility as well as certainty of the proof of dis- 
 honour, would be materially affected by a different course; a foreign 
 merchant might otherwise be compelled to rely on mere parol proof of 
 presentment and dishonour, and be subjected to many chances of delay, 
 and sometimes to absolute loss, from the want of sufficient means to 
 obtain the necessary and satisfactory proofs. The rule, therefore, be- 
 ing founded in public convenience, has been ratified by courts of law as 
 a binding usage. But where parties reside in the same kingdom or 
 country, there is not the same necessity for giving entire verity and 
 credit to the notarial protest. The parties may produce the witnesses 
 upon the stand, or compel them to give their depositions. And accord- 
 ingly, even in cases of foreign bills, drawn upon, and protested in an- 
 other country, if the protest has been made in the country where the 
 
314 HEARSAY RULE : (b)" EXCEPTIONS. No. 333. 
 
 suit is brought; courts of justice sitting under the common law, require 
 that the notary himself should be produced if within the reach of 
 process, and his certificate is not per se evidence. This was so held by 
 lord Ellenborough, in Chesmer vs. Noyes, 2 Campbell's R. 129. It 
 is not disputed, that by the general custom of merchants in the United 
 States, bills of exchange drawn in one state on another state, are, if 
 dishonoured, protested by a notary; and the production of such protest 
 is the customary document of the dishonour. It is a practice founded 
 in general convenience, and has been adopted for the same reasons 
 which apply to foreign bills in the strictest sense. The distance be- 
 tween some of these states, and the difficulty of obtaining other evi- 
 dence, is far greater than between England and France, or between 
 the continental nations of Europe, where the general rule prevails. 
 We think upon this ground alone, the reason for admitting foreigp 
 protests would apply to cases like the present, and furnish a just 
 analogy to govern it. . . . Wherever a protest is required to fix the 
 title of the parties; or by the custom of merchants is used to establish 
 a presentment or dishonour of a bill; it is competent evidence between 
 the parties, who contract with reference to the presentment and dis- 
 honour of such bill."' 
 
 KIDD'S ADMINISTRATOR v. ALEXANDER'S ADMINISTRATOR 
 
 (1823). 
 
 J Rand. 456. 
 
 Action on a bond. The deposition of one John Scott, a transferee, 
 was objected to on the ground of his interest. Before his deposition 
 was taken, Israel and John Pleasants executed a release to Scott 
 "** under their seal, relinquishing all claim on the said Scott, on 
 account of the transfer of the bond to them. The execution of this 
 release, was certified by John Gill, notary public of the state of Mary- 
 land, in the form in which notarial acts are usually executed. . . 
 
 Brooke, J. : "The Court not deciding whether, if proved, the release 
 in the record would be effectual to bind the late house of Israel and 
 John P. Pleasants, is of opinion, that the certificate of the notary public, 
 John Gill, that John P. Pleasants, partner in the late house of Israel 
 and John P. Pleasants, acknowledged it to be his act and deed, was 
 inadmissible evidence to prove the execution of the said release. To 
 effect that object, the deposition of the notary public, or some equiva- 
 lent testimony ought to be before the court. In the absence of such 
 proof, the court is of opinion, that John Scott, the assignee of the 
 bond in question, was an incompetent witness, and his deposition and 
 affidavit, also inadmissible testimony." 
 
 J — Compare the authorities cited in W., § 1673. 
 
No. 336. 8c. OFFICIAL CERTIFICATES AND COPIES. 315 
 
 Statutes : California, C. C. P. 1872, § 1948 : "Every private writ- 
 ing, except last wills and testaments, may be acknowledged or proved 
 and certified" like conveyances of realty, and the certificate is 
 evidence of execution. 
 
 Illinois, Rev. St. 1874, c. 30, § 35 : An instrument affecting land, 
 duly acknowledged or proved, "whether the same be recorded or not, 
 may be read in evidence without any further proof of the execution 
 thereof." 
 
 Iowa, Code 1897, § 4621 : "Every private writing, except a last will 
 and testament, after being acknowledged or proved and certified in the 
 manner prescribed for the proof or acknowledgment of conveyances 
 of real property, may be read in evidence without further proof."* 
 
 BuLLER, J., Trials at Nisi Prius, 229 {ante 176^) : "Here a differ- 
 ence is to be taken between a copy authenticated by a person trusted for 
 that purpose, for there that copy is evidence without proof; and 
 a copy given out by an officer of the court, who is not trusted for 
 that purpose, which is not evidence without proving it actually examined. 
 The reason of the difference is, that where the law has appointed any 
 person for any purpose, the law must trust him as far as he acts under 
 its authority; therefore the chirograph of a fine is evidence of such 
 fine, because the chirographer is appointed to give out copies of 
 the agreements between the parties that are lodged of record. So 
 where the deed is inrolled, the indorsement of the inrolment is evidence 
 without further proof of the deed, because the officer is intrusted to 
 authenticate such a deed by inrolment; but if the officer of the court 
 make out a copy, when he is not intrusted to that purpose, they ought 
 to prove it examined, because being no part of his office, he is but a 
 private man, and a private man's mere writing ought not to be cred- 
 ited without an oath. Therefore it is not enough to give in evidence 
 a copy of a judgment, though it be examined by the clerk of the Treas- 
 ury, because it is no part of the necessary office of clerk, for he is only 
 intrusted to keep the records for the benefit of all men's perusal, and 
 not to make out copies of them. So if the deed inrolled be lost, and 
 the clerk of the peace make out a copy of the inrolment, that is no 
 evidence without proving it examined; because the clerk is intrusted 
 to authenticate the deed itself by inrolment, and not to give out copies 
 of the inrolment. The office copies of depositions are evidence in chan- 
 cery, but not at common law without examination with the roll ; for 
 though that Court have, for their own convenience, impowered their 
 officers to make out such copies as should be evidence; yet the particu- 
 lar rules of their courts are not taken notice of by the courts of com- 
 mon law, and therefore they are not evidence in those courts." 
 
 8 — Compare the authorities cited in W., S 1676; and Nos. 328, 329, ante. 
 
316 HEARSAY rule; (b) exceptions. No. 337. 
 
 UNITED STATES v. PERCHEMAN (1833), 
 
 7 Pet. 51, 85. 
 
 Marshall, C. J.: "This is an appeal from a decree pronounced 
 by the judge of the superior court for the district of East Florida, 
 confirming the title of the appellee to two thousand acres of 
 ""*• land lying in that territory, which he claimed by virtue of a 
 grant from the Spanish governor made in December 1815. ... At the 
 trial the counsel for the claimant offered in evidence a copy from the 
 office of the keeper of public archives, of the original grant on which 
 the claim is founded, to the receiving of which in evidence the attor- 
 ney for the United States objected, alleging that the original grant 
 itself should be procured, and its execution proved. This objection 
 was overruled by the court, and the copy from the office of the keeper 
 of the public archives, certified according to law, was admitted. The 
 attorney for the United States excepted to this opinion. It appears, 
 from the words of the grant, that the original was not in possession 
 of the grantee. The decree which constitutes the title, appears to be 
 addressed to the officer of the government whose duty it was to keep 
 the originals and to issue a copy. ... It appears too from the opinion 
 of the judge, 'that by an express statute of the territory, copies are 
 to be received in evidence.' . . . Whether these acts be or be not con- 
 strued to authorize the admission of the copies offered in this cause; 
 we think that, on general principles of law, a copy given by a public 
 officer whose duty it is to keep the original, ought to be received in 
 evidence."' 
 
 Statutes: England, 1851, St. 14 & 15 Vict. c. 99, Lord Brougham's 
 
 Act, § 14 : "Whenever any book or other document is of such a public 
 
 nature as to be admissible in evidence on its mere production 
 000 
 
 "•''' from the proper custody, and no statute exists which renders 
 its contents provable by means of a copy, any copy thereof or extract 
 therefrom shall be admissible in evidence in any court of justice . . ., 
 provided it be proved to be an examined copy or extract, or provided 
 it purport to be signed or certified as a true copy or extract by the 
 officer to whose custody the original is intrusted." 
 
 California, C. C. P. 1872, § 1893 : A certified copy by "every public 
 officer having custody of a public writing which a citizen has a right to 
 inspect," is admissible "with like effect as the original writing." lb., 
 § 1901 : A certified copy of a "written law or other public writing of 
 any State or country," by "the officer having charge of the original," 
 under the public seal of the State or country, is receivable." lb., § 1918: 
 "Other official documents may be proved as follows: i. Acts of the 
 Executive of the State, by the records of the State department of the 
 
 9 — Compare the authorities cited in W., §§ 1677, 1680. 
 
No. 338. 8c. OFFICIAL (certified) copies. 317 
 
 State; and of the United States, by the records of the state depart- 
 ment of the United States, certified by the heads of those departments 
 respectively. ... 2, The proceedings of the Legislature of this State, 
 or of Congress, by the journals of those bodies respectively, or either 
 house thereof, or by published statutes or resolutions, or by copies 
 certified by the clerk. ... 3, The acts of the Executive, or the pro- 
 ceedings of the Legislature of a sister State, in the same manner; 4, 
 The acts of the Executive, or the proceedings of the Legislature of a 
 foreign country, ... by a copy certified under the seal of the country 
 or sovereign, or by a recognition thereof in some public act of the 
 Executive of the United States; 5, Acts of a municipal corporation of 
 this State, or of a board of department thereof, by a copy, certified 
 by the legal keeper thereof. ... 6, Documents of any other class in 
 this State, by the original, or by a copy, certified by the legal keeper 
 thereof; 7, Documents of any other class in a sister State, by the 
 original, or by a copy certified by the legal keeper thereof, together 
 with a certificate of the Secretary of State, judge of the supreme, 
 superior, or county court, or mayor of a city of such State, that the 
 copy is duly certified by the officer having the legal custody of the 
 original; 8, Documents of any other class in a foreign country, by 
 the original, or by a copy certified by the legal keeper thereof, with 
 a certificate, under seal of the country or sovereign, that the document 
 is a valid and subsisting document of such country, and that the copy 
 is duly certified by the officer having the legal custody; 9, Documents 
 in the departments of the United States government, by the certificates 
 of the legal custodian thereof." 
 
 Iowa, Code 1897, § 4635 : "Duly certified copies of all records and 
 entries or papers belonging to any public office or by authority of law 
 required to be filed therein," are admissible. 
 
 .United States, Rev. St. 1878, §905 (St. 1790, May 26): "The 
 acts of the Legislature of any State or Territory, or of any country 
 subject to the jurisdiction of the United States, shall be authenticated 
 by having the seals of such State, Territory, or country affixed there- 
 to." lb., §906 (St. 1804, March 27): "All records and exemplifica- 
 tions of books which may be kept in any public office of any State or 
 Territory or of any country subject to the jurisdiction of the United 
 States, not appertaining to a court, shall be proved or admitted in any 
 court or office in any other State or Territory or in any such coun- 
 try, by the attestation of the keeper of the said records or books, and 
 the seal of his office annexed, if there be a seal, together with a 
 certificate of the presiding justice of the court of the county, parish, 
 or district in which such office may be kept, or of the governor, secre- 
 tary of state, the chancellor or keeper of the great seal, of the State 
 or Territory or country, that the said attestation is in due form and 
 by the proper officers. If the said certificate is given by the presiding 
 justice of a court, it shall be further authenticated by the clerk or 
 prothonotary of the said court, who shall certify, under his hand and 
 
318 HEARSAY rule: (b) exceptions. No. 338. 
 
 the seal of his office, that the said presiding justice is duly commis- 
 sioned and qualified; or, if given by such governor, secretary, chan- 
 cellor, or keeper of the great seal, it shall be under the great seal of 
 the State, Territory, or country aforesaid in which it is made." 
 
 Chief Baron Gilbert^ Evidence, ii (^ante 1726) : "The next thing 
 is the copies of all other records [than statutes] and they are two- 
 fold: under seal, and not under seal. First, under seal; and 
 
 ADO 
 
 """ these are called by a particular name. Exemplifications, and are of 
 better credence than any sworn copy; for the Courts of justice that 
 put their seals to the copy are supposed more capable to examine and 
 more critical and exact in their examinations than any other person 
 is or can be; and besides there is more credit to be given to their seal 
 than to the testimony of any private person. . . . Exemplifications are 
 twofold: under the Broad Seal, or under the seal of the Court. . . . 
 When a record is exemplified under the Great Seal, it must either be 
 a record of the Court of Chancery, or be sent for by a certiorari into 
 the Chancery (which is the centre of all Courts), and from thence 
 the subjects receive a copy under the attestation of the Great Seal; 
 for in the first distribution of the Courts, the Chancei-y held the Broad 
 Seal, from whence the authority issued to all proceedings, and those 
 proceedings cannot be copied under the Great Seal unless they come 
 into the Court where that seal is lodged. . . . The second sort of 
 copies under seal are the exemplifications under the seal of the Court, 
 and these are ofi higher credit than a sworn copy. . . . Seals of public 
 credit are the seals of the King and of the public Courts of justice, 
 time out of mind. . . . But the seals of private Courts or of private 
 persons are not full evidence by themselves without an oath concur- 
 ring to their credibility. . . . The second sort of copies are those that 
 are not under seal, and these are of two sorts, sworn copies, and office- 
 copies. ... A copy given out by the officer of the Court that is not 
 trusted to the purpose ... is not evidence without proving it actually 
 examined."^" 
 
 CHURCH V. HUBBART (1804). 
 
 2 Cr. 186, 238. 
 
 Action on policies of marine insurance; defence, that the vessels 
 
 were seized by the Portuguese and condemned for illicit trade, within 
 
 the exceptions of liability in the policy. To prove this defence, 
 
 **" certain laws and proceedings were offered, with the following 
 
 certificates of copy: "I, William Jarvis, consul of the United States 
 
 10 — Mansfield, L. C. J., in Denn v. Ful- does it appear that it is necessary that a 
 
 ford, 2 Burr. 1177, 1179 (1761), admitting copy of a proceeding in Chancery, given 
 
 an examined copy of a Chancery bill, in evidence, must be an office-copy? . . . 
 
 and interpreting the stamp law: "Hovf An office-copy is, in the same court and 
 
No. 340. 8c. OFFICIAL (certified) copies. 319 
 
 of America"; in this city of Lisbon, &c., do hereby certify to all whom 
 it may or doth concern, that the law in the Portuguese language, here- 
 unto annexed, dated from i8th March, 1605, is a true and literal 
 copy from the original law of this realm of that date, prohibiting the 
 entry of foreign vessels into the colonies of this kingdom, and as such, 
 full faith and credit ought to be given it in courts of judicature or 
 elsewhere. I further certify, that the foregoing is a just and true 
 translation of the aforesaid law. 
 
 "In testimony whereof, I have hereunto set my hand and affixed my 
 seal of office, at Lisbon, this 12th day of April, 1803. 
 
 (Signed ) "William Jarvis." 
 
 "Para, 27th June, 1801. D. Jono de Almeida de Mello de Castro, 
 of the Council of State of the Prince Regent our Lord and his Min- 
 ister and Secretary of State of the foreign affairs and war depart- 
 ments, &c. do hereby certify that the present is a faithful copy taken 
 from the original deeds relative to the brig Aurora. In witness where- 
 of I order this attestation to be passed and goes by me signed and 
 sealed with the seal of my arms. Lisbon the 27th January, 1803. 
 
 (Signed) "D. Jono de Almeida de Mello de Castro." 
 
 "I William Jarvis, Consul of the United States of America in this 
 city of Lisbon, &c. do hereby certify unto all whom it may concern 
 that the foregoing is a true and just translation of a copy from the 
 proceedings against the brig Aurora, Nathaniel Shaler, master, at Para 
 in the Brazils which is hereto annexed and attested by his Excellency 
 Don Jono de Almeida de Mello de Castro, whose attestation is dated the 
 27th January, 1803. 
 
 "In testimony whereof, I have hereunto set my hand and affixed 
 my seal of office, in Lisbon, this i6th day of April, one thousand eight 
 hundred and three. 
 
 "William Jarvis." 
 
 Marshall, C. J.: "To prove that the Aurora and her cargo were 
 sequestered at Para, in conformity with the laws of Portugal, two 
 edicts and the judgment of sequestration have been produced by the 
 defendants in the Circuit Court. These documents were objected to 
 on the principle that they were not properly authenticated, but the 
 objection was overruled, and the judges permitted them to go to the 
 jury. The edicts of thei crown are certified by the American consul at 
 
 in the same cause, equivalent to a record; office, and that which he is not specially 
 
 "but in another court or in another cause authorized by his office to do. . . . An 
 
 in the same court the copy must be proved." exemplification is under the seal of the 
 
 Holroydj J., in Appleton v. Braybrook, Court, which shows it to be the act of the 
 
 6 M. Q S. 37 (1816): "The distinction Court, and it is equivalent when the act 
 
 is plain between that which proceeds from is done by an officer who has a duty cast 
 
 the officer in the course of his duty in the on him for the express purpose." 
 
320 HEARSAY RULE: (b) EXCEPTIONS. No. 340, 
 
 Lisbon to be copies from the original law of the realm, and this cer- 
 tificate is granted under his official seal. ... In this case the edicts- 
 produced are not verified by an oath. The consul has not sworn; 
 he has only certified that they are truly copied from the original. 
 To give to this certificate the force of testimony it will be neces- 
 sary to shew that this is one of those consular functions to which, 
 to use its own language, the laws of this country attach full faith 
 and credit. Consuls, it is said, are officers known to the law of nations, 
 and are entrusted with high powers. This is very true, but they do 
 not appear to be entrusted with the power of authenticating the laws 
 of foreign nations. They are not the keepers of those laws. They 
 can grant no official copies of them. There appears no reason for 
 assigning to their certificates respecting a foreign law any higher or 
 different degree of credit, than would be assigned to their certificates 
 of any other fact. . . The paper offered to the court is certified to be 
 a copy compared with the original. It is impossible to suppose that this 
 copy might not have been authenticated by the oath of the consul as well 
 as by his certificate. It is asked in what manner this oath should 
 itself have been authenticated, and it is supposed that the consular 
 seal must ultimately have been resorted to for this purpose. But 
 no such necessity exists. Commissions are always granted for taking 
 testimony abroad, and the commissioners have authority to admin- 
 ^ ister oaths and to certify the depositions by them taken. The edicts 
 of Portugal, then, not having been proved, ought not to have been 
 laid before the jury. 
 
 "The paper offered as a true copy from the original proceedings 
 against the Aurora, is certified under the seal of his arms by D. Jono 
 de Almeida de Mello de Castro, who states himself to be the secretary 
 of state for foreign affairs, and the consul certifies the English copy 
 which accompanies it to be a true translation of the Portuguese orig- 
 inal. Foreign judgments are authenticated [either], i, by an exemplifi- 
 cation under the Great Seal, [or] 2, by a copy proved to be a true copy, 
 [or] 3, by the certificate of an officer authorized by law, which certificate 
 must itself be properly authenticated. These are the usual, and appear 
 to be the most proper, if not the only, modes of verifying foreign judg- 
 ments. ... If it be true that the decrees of the colonies are transmitted 
 to the seat of government and registered in the department of State, a 
 certificate of that fact under the Great Seal, with a copy of the decree 
 authenticated in the same manner, would be sufficient evidence of the 
 verity of what was so certified, but the certificate offered to the Court is 
 under the private seal of the person giving it, which cannot be known 
 to this Court, and of consequence can authenticate nothing. The paper, 
 therefore, purporting to be a sequestration of the Aurora and her cargo 
 in Para ought not to have been laid before the jury.''^^ 
 
 II — Compare the authorities cited in W., § i68i. 
 
No. 342. 8c. OFFICIAL (certified) copies. 321 
 
 Statutes: California, C. C. P. 1872, § 1905: "A judicial record of 
 this State or of the United States, may be proved by the produc- 
 tion of the original, or by a copy thereof, certified by the clerk 
 *'*^ or other person having the legal custody thereof. That of a 
 sister State may be approved by the attestation of the clerk and the 
 seal of the court annexed, if there be a clerk and seal, together with 
 a certificate of the chief judge or presiding magistrate that the attes- 
 tation is in due form." lb., §1906: "A judicial record of a foreign 
 country may be proved by the attestation of the clerk, with the seal of 
 the court annexed, if there be a clerk and a seal, or of the legal keeper 
 of the record, with the seal of his office annexed, if there be a seal, 
 together with a certificate of the chief judge or presiding magistrate 
 that the person making the attestation is the clerk of the court or the 
 legal keeper of the record, and in either case, that the signature of such 
 person is genuine, and that the attestation is in due form. The sig- 
 nature of the chief judge or presiding magistrate must be authenti- 
 cated by the certificate of the minister or ambassador, or a consul, 
 ■vice-consul, or consular agent of the United States in such foreign 
 country.'' 
 
 Illinois, Rev. St. 1874, c. 51, §13: "The papers, entries, and rec- 
 ords of courts may be proved by a copy thereof certified under the 
 hand of the clerk of the court having the custody thereof, and the 
 seal of the court, or by the judge of the court if there be no clerk." 
 
 United States, Constitution 1789, Art. IV, § i : "Full faith and 
 credit shall be given in each State to the public acts, records, and 
 judicial proceedings of every other State. And the Congress may by 
 general laws prescribe the manner in which such acts, records, and 
 proceedings shall be proved, and the effect thereof." Rev. St. 1878, 
 §905 (St. 1790; May 26): "The records and judicial proceedings 
 of the Courts of any State or Territory, or of any such country 
 [subject to the jurisdiction of the U. S.], shall be proved or admit- 
 ted in any other Court within the United States, by the attestation of 
 the clerk, and the seal of the Court annexed, if there be a seal, to- 
 gether with a certificate of the judge, chief justice, or presiding magis- 
 trate, that the said attestation is in due form."^ 
 
 Chief Baron Gilbert, Evidence, 11 (ante 1726) : "My Lord Chief 
 Justice Parker allowed the printed statute to be evidence, in the case 
 of the College of Physicians and Dr. West, of the truth of a 
 "*" private act of Parliament touching the institution of the Col- 
 lege of Physicians, because the printed statute-book is printed by the 
 
 I — Compare the authorities cited in W., copy of a domestic judgment, compare the 
 
 5 1681. following: Illinois: 1895, Garden City S. 
 
 In particular, as illustrating differences Co. v. Miller, 157 id. 225, 41 N. E. 753 
 
 of local State practice in regard to re- (Rev. St. c. 51, § 13, making judicial 
 
 quiring the seal of Court for a certified records provable by the clerk's certified 
 
322 HEARSAY rule: (b) exceptions. No. 342, 
 
 Queen's authority, and therefore, though it be not so good evidence 
 as an exemplification under seal, yet it must be supposed as good an 
 evidence of the truth of a copy as a copy compared with the rolls and 
 sworn to by the testimony of any witness, which is allowed daily as 
 a good proof of the copy of a record; for a copy printed by the public 
 authority derives more credit from that authority than it would from 
 the testimony of any living witness that had compared it."'' 
 
 Statutes : California, C. C. P. 1872, § 1900 : "Books printed 
 under the authority of a sister State or foreign country, and purport- 
 ing to contain the statutes, code, or other written law of such 
 State or country, or proved to be commonly admitted in the 
 tribunals of such State or country as evidence of the written law 
 thereof," are receivable. lb., § 1963 : There is a presumption "that 
 a printed and published book purporting to be printed or published by 
 public authority was so printed or published." 
 
 Nebraska, Comp. St. 1899, § 5970 : "Printed copies in volumes of 
 statutes, code, or other written law, enacted by any other Territory, or 
 State, or foreign government, purporting or proved to have been pub- 
 lished by the authority thereof, or proved to be commonly admitted 
 as evidence of the existing law" in the courts thereof, are admissible.* 
 
 9. SCIENTIFIC BOOKS. 
 
 SPENCER COWPER'S TRIAL (1699). 
 
 13 How. St. Tr. 1163. 
 
 Murder; the deceased's body was found in the river, and the de- 
 fense maintained that she had drowned herself. A medical expert 
 was testifying to the symptoms of drowning as indicated by 
 *** the condition of the lungs. Dr. Crell: "My lord, I have little 
 to say in this affair, the physicians that have been examined already 
 having made it out, that persons who are drowned may have but lit- 
 tle water in their bodies; but I have taken what pains I could, upon 
 so short warning, and I will tell you the opinion of several eminent 
 authors. My own opinion is, that a very small quantity of water, 
 not exceeding three ounces, is sufficient to drown any body; and I 
 
 copy under Court seal, includes records Massachusetts it is sufficient if the copy 
 out of the State, because such a copy was is attested by the clerk; this rule of evi- 
 already admissible at common law for dence is founded on immemorial usage"), 
 records within the State; the act of 1872, 2 — Marston, J., in Wilt v. Cutler, 38 
 Rev. St. c. 51, § 13, simply repeats that Mich. 196 (1878): "The distinct author- 
 rule for domestic records, and extends it ity for printing and publishing the laws 
 to foreign records); Massachusetts: i860, need not appear in any case where they 
 Chamberlin v. Ball, 15 Gray 352 (fpr a purport to be published under the author- 
 record of a court in the State, "it is not ity of the government." 
 necessary that it should be an exemplified 3 — Compare the authorities cited in W., 
 copy under the seal of the Court; ... in § 1684. 
 
No.345. 9. SCIENTIFIC BOOKS. 323 
 
 believe that the reason of the suffocation, or of any person's being 
 stifled under water, is from the intercepting of the air, that the person 
 cannot breathe, without which he cannot live. Now, my lord, I will 
 give you the opinion of several ancient authors." Baron Hatsell: 
 "Pray, doctor, tell us your own observations." Dr. Crell: "My lord, 
 it must be reading, as well as a man's own experience, that will make 
 any one a physician, for without the reading of books of that art, 
 the art itself cannot be attained to. Besides, my lord, I conceive that 
 in such a difficult case as this we ought to have a great deference 
 for the reports and opinions of learned men. Neither do I see why 
 I should not quote from the fathers of my profession in this case as 
 well as you gentlemen of the long robe quote Coke upon Littleton in 
 others."* 
 
 ASH WORTH V. KITTREDGE (1853). 
 
 12 Cush. 194. 
 
 Shaw, C. J.: "In an action against a surgeon, for neglect, and 
 want of competent skill, in the treatment of the plaintiff, by means 
 of which the plaintiff lost his arm, the plaintiff put in his 
 " evidence, to show what was his own condition, and the treat- 
 ment by the defendant,, and both parties offered evidence of the opin- 
 ions of physicians and surgeons as experts. . . . The Court are of 
 opinion, that it was not competent for the counsel for the plaintiff, 
 against the objection of the other side, to read medical books to the 
 jury. It was formerly practiced rather by general indulgence and 
 tacit consent of the parties, than in pursuance of any rule of law ; but it 
 has been frequently decided that it is not admissible, and we now con- 
 sider the law to this effect well settled, both upon principle and au- 
 thority. Where books are thus offered, they are in effect used as 
 evidence, and 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. If 
 the same author were cross-examined, and called to state grounds of 
 his opinion, he might himself alter or modify it, and it would be tested 
 by a comparison of the opinions of others. Medical authors, like 
 writers in other departments of science, have their various and con- 
 flicting theories, and often sustain and defend them with ingenuity. 
 But as the whole range of medical literature is not open to persons 
 
 4 — Theory of EvidencCj c. II, pi. 104 on particular subjects, but not to prove 
 
 (1739) : "The almanack is a sufficient evi- facts. ... In this case the defendant's 
 
 dence to prove a day Sunday." counsel proposed to read certain specific 
 
 Pollock, C. B., in Darby v. Ouseley, I [church] canons, not as matters of specu- 
 
 H. & N. I, 8 (1856): ''Standard authors lative opinion, . . . but as matters of fact." 
 
 may be referred to for such a purpose [to Compare the authorities cited in W., §§ 
 
 show the literary significance of parodies] 1698, 1699; and No. 636, post, 
 or as showing the opinions of eminent men 
 
324 HEARSAY RULE : (b) EXCEPTIONS. No. 345. 
 
 of common experience, a passage may be found in one book favorable 
 to a particular opinion, when perhaps the same opinion may have 
 been vigorously contested, and perhaps triumphantly overthrown, by 
 other medical authors, but authors whose works would not be likely 
 to be known to counsel or client, or to court or jury. 
 
 "Besides; medical science has its own nomenclature, its technical 
 terms and words of art, and also common words used in a peculiar 
 manner, distinct from their received meaning, in the general use 
 of the language. From these and other causes, a person not versed 
 in medical literature, though having a good knowledge of the general 
 use of the English language, would be in danger, without an inter- 
 preter, of misapprehending the true meaning of the author. Whereas, 
 a medical witness would not only give the fact of his opinion, and the 
 grounds on which it is formed, with the sanction of his oath, but 
 would also state and explain it in language intelligible to men of com- 
 mon experience. If it be said, that no books should be read, except 
 works of good and established authority, the difficulty at once arises 
 as to the question, what constitutes 'good authority;' more especially 
 whether it is a question of competency to be decided by the court, 
 whether any particular book shall be received or rejected; or a ques- 
 tion of weight of testimony, so that any book may be read, leaving 
 its weight, force and efifect to the jury. Either of the alternatives 
 would be attended with obvious, if not insuperable objections."'* 
 
 PINNEY V. CAHILL (1882). 
 
 48 Mich. 587, 12 N. W. 862. 
 
 Graves, C. J.: "The defendant hired the plaintiff's horse to drive 
 
 from Milford to Ilolley and back and the animal became sick and died. 
 
 The plaintiff claimed that this was caused by defendant's ill- 
 
 ^*" usage and neglect and he sued for damages. The jury found 
 
 judgment against him and he brought this writ of error. . . . The plain- 
 
 5 — Lacombe, J., in Western Assurance tended for, that valuable information would 
 Co. V. Mohlman Co., 2% C. C. A. 157, 83 be available for the use of a court of 
 Fed. 811 (1897), allowing a civil engineer, justice so long as the men who made the 
 called as an expert in construction, to read tests and prepared the tabulations were 
 excerpts from scientific books when giving living and producible, but after their death 
 his testimony: **The rule is not of univer- or disappearance the information they had 
 sal application. It would be a reproach gathered would be lost to the court, al- 
 to the administration of the law if it though available for every one else in the 
 were so. Records of observations are un- community, and relied upon by engineers 
 doubtedly secondary evidence; but, if all and builders whenever a new structure is 
 such records were excluded from the in process of erection. Upon the precise 
 sources of knowledge available to a court' point here presented the diligence of coun- 
 of justice, it would frequently find itself sel has not succeeded in discovering a sin- 
 unable to obtain information which was gle authority. We feel, therefore, no hesi- 
 open to every individual in the community. tancy in so modifying the general rule 
 It has been held repeatedly that standard as to hold that, where the scientific work 
 life and annuity tables, showing at any containing them is concededly recognized 
 age the probable duration of life, are com- as a standard authority by the profession, 
 petent evidence. . . . Under the rule con- statistics of mechanical experiments and 
 
No. 347. 9. SCIENTIFIC BOOKS. 325 
 
 tiff produced a witness who swore that he was a veterinary surgeon of 
 25 years' standing, and his opinion as an expert being called for he 
 swore that in his opinion the horse died from being overfed when too 
 hot, which would produce colic. On cross-examination he said that 
 colic was caused by over driving and feeding when the animal is too 
 warm ; that all works of good authority spoke of it and that the 'Modern 
 Horse Doctor, by Dr. Dodd' was a work of that kind. The defendant 
 then offered to show from this work of Dr. Dodd, where the author 
 treats of colic, the passage following: 'In nine cases out of ten colic 
 is the result of impaired digestive organs; the food runs into fermenta- 
 tion and evolves carbonic acid gas.' This evidence was offered to dis- 
 credit this expert in connection with his cross-examination. The plain- 
 tiff objected to its introduction but the court admitted it. The rule is 
 acknowledged in this state that medical books are not admissible as a 
 substantive medium of proof of the facts they set forth. But the matter 
 in question was not adduced with any such view. The witness as- 
 sumed to be a person versed in veterinary science; to be familiar with 
 the best books which treat of it and among others with the work of 
 Dodd. He professed himself qualified to give an opinion to the jury 
 from the witness stand on the ailment of the plaintiff's horse and its 
 cause, and the drift of his opinion was to connect the defendant with 
 that ailment. He borrowed credit for the accuracy of his state- 
 ment on referring his learning to the books before mentioned and by 
 implying that he echoed the standard authorities like Dodd. Under the 
 circumstances it was not improper to resort to the book, not to prove the 
 facts it contained, but to disprove the statement of the witness and 
 enable the jury to see that the book did not contain what he had ascribed 
 to it."» 
 
 ID. COMMERCIAL REPORTS, ETC. 
 
 SISSON v. RAILROAD CO. (1866). 
 
 14 Mich. 48P, 4p6. 
 
 Action of assumpsit, brought in the court below against the defend- 
 ants as common carriers, upon a special contract for the transportation 
 of a lot of beef cattle from Toledo to Buffalo, on their way to the 
 ***' market at Albany or New York. . . . There was evidence also 
 given, tending to show that the cattle were detained a long time on the 
 way, by the fault of the defendants, and that the plaintiff suffered damage 
 in consequence thereof, both by the depreciation of the quality of the 
 
 taoulations of the results thereof may be statistics and tabulations are concerned." 
 
 read in evidence by an expert witness in Compare the authorities cited in W., §§ 
 
 support of his professional opinion, when 1693. 1696. 
 
 such statistics and tabulations are generally 6 — Compare the authorities cited in W., 
 
 relied upon by experts in the particular § 1700. 
 
 field of the mechanic arts with which such 
 
326 HEARSAY rule: (b) exceptions. No. 341, 
 
 cattle, and the fall of the market before they reached Albany. . . . 
 The evidence consisted of the knowledge the witnesses had of the state 
 of the market, as a matter of general notoriety, derived from news- 
 papers (in which the state of the market is published daily), and tele- 
 graph reports, and from the statements of those engaged in the business. 
 CooLEY, J.: "Evidence of the state of the markets as derived from 
 the market reports in the newspapers [should not have been excluded]. 
 . . . The principle which supports these cases will allow the market 
 reports of such newspapers as the commercial world rely upon to be 
 given in evidence. As a matter of fact such reports, which are based 
 upon a general survey of the whole market and are constantly received 
 and acted upon by dealers, are far more satisfactory and reliable than 
 individual entries or individual sales or inquiries; and Courts would 
 justly be the subject of ridicule if they should deliberately shut their 
 eyes to the sources of information which the rest of the world relies 
 upon, and demand evidence of a less certain and satisfactory char- 
 acter."^ 
 
 II. STATEMENTS OF A BODILY OR MENTAL CONDI- 
 TION. 
 
 a. Pain and Suffering. 
 
 BACON V. CHARLTON (1851). 
 
 7 Ctish. 581, 586. 
 
 Action on the case to recover damages for an injury sustained by the 
 plaintiff, in being thrown from his carriage, while traveling through 
 the town of Charlton, in consequence of an obstruction in the 
 highway. . . . The presiding judge ruled that groans or ex- . 
 clamations of pain, made by the plaintiff, at any time, were admissible 
 in evidence, although they referred either by word or gesture to the 
 locality of the pain; as if a man should put his hand upon his side 
 and groan, or should say, "Oh, my head !" or utter similar complaints, 
 being an expression of present pain or agony; but that any statement of 
 his condition or feelings, made ixv answer to a question, or as a narra- 
 tive, or with a view to communicate information, was not admissible. 
 And a witness was accordingly allowed, against the defendant's objec- 
 tion, to testify that the plaintiff made exclamations of pain all the way 
 
 7 — Smith, J., in Fairley v. Smith, 87 N. this information, as truthful and correct, 
 
 C. 367, 371 (1S82), rejecting a cotton- in their dealings with each other; nor from 
 
 quotation in a Charlotte newspaper for what source the information itself comes. 
 
 Boston prices: "The evidence received in ... [It was thus improper to admit the 
 
 the present case has none of those essen- evidence] without any proof, outside the 
 
 tial safeguards to ensure the accuracy of paper, of its trustworthiness and recogni- 
 
 the published information as to the state lion as such by business men dealing in 
 
 of a distant market, to warrant its un- cotton." 
 
 qualified submission to the jury. It does Compare the authorities cited in W., } 
 
 not appear that business men acted upon 1702. 
 
No. 349. II. BODILY OR MENTAL CONDITION. 327 
 
 home from the place of the accident; that he made complaints of pain 
 for three or four days after the accident, and stated the locality of the 
 pains; and that he sometimes put his hand upon his hip and sometimes 
 upon his left side. 
 
 BiGELOw, J. : "Where the bodily or mental feeling of a party are to 
 be proved, the usual and natural expressions of such feelings, made at 
 the time, are considered competent and original evidence in his favor. 
 And the rule is founded upon the consideration that such expressions 
 are the natural and necessary language of emotion, of the existence of 
 vfhich, from the very nature of the case, there can be no other evi- 
 dence. . . . Such evidence, however, is not to be extended beyond the 
 necessity on which the rule is founded. Anything in the nature of narra- 
 tion or statement is to be carefully excluded, and the testimony is to be 
 confined strictly to such complaints, exclamations, and expressions as 
 usually and naturally accompany and furnish evidence of a present 
 existing pain or malady. . . . These remarks as to the limitation of the 
 rule are not intended to apply to the statements made by a patient to a 
 medical man, to which a different rule may be applicable."* 
 
 BARBER V. MERRIAM (1865). 
 
 II All. ^22. 
 
 Action of tort for personal injury. At the trial there was evidence 
 that the female plaintiff, for the first two weeks of her illness, was 
 attended by Dr. Holden, and afterwards by Dr. Weld. . . . Dr. 
 * " Guild, who succeeded Dr. Weld in attendance on the female plain- 
 tiff, was called as a witness, and was allowed to repeat to the jury the 
 statements of the plaintiff herself, made since the suit was brought, 
 for the purpose of receiving medical advice, as to the character and seat 
 of her injuries and sensations, against the objection of the defendants. 
 
 8 — Aveson v. Kinnaird, 6 East 19s her own advantage and that of her hus- 
 
 (1805); evidence was offered of declara- band, and therefore falling within the 
 
 tions on a sickbed by the plaintiff's wife principle of the case in Skinner which I 
 
 that she was not well on the previous have alluded to." 
 
 Tuesday, when she went to be insured; Swayne, J., in Insurance Co. v. Mosley, 
 
 Ellenborough, L. C. J.: "A witness has 8 Wall, 397 (1869): "Wherever the bodily 
 
 been received to relate that which has al- or mental feelings of an individual are 
 
 ways been received from patients to ex- material to be proved, the usual expres- 
 
 plain — her own account of the cause of sions of such feelings are original and 
 
 her being in bed at an unseasonable hour competent evidence. These expressions are 
 
 with the appearance of being ill. ... the natural reflexes of what it might be 
 
 What were the complaints, what the symp- impossible to show by other testimony, 
 
 toms, what the conduct of the parties them- ... As independent explanatory or corrob- 
 
 selves at the time, are always received upon orative evidence, it is often indispensable 
 
 such inquiries, and must be resorted to to the due administration of justice, 
 
 from the very nature of the thing. . . . Such evidence must not be extended be- 
 
 The declaration was upon the subject of yond the necessity upon which the rule is. 
 
 her own health at the time, which is a founded. It must relate to the present 
 
 fact of which her own declaration is evi- not to the past. Anything in the nature 
 
 dence; and that too made unawares be- of narration must be excluded." 
 fore she could contrive any answer for 
 
328 HEARSAY rule: (b) exceptions. No. 349. 
 
 G. Putnam, Jr., for the defendant : ". . . The statements of the female 
 plaintiff to Dr. Guild ought not to have been admitted. They would 
 clearly have been incompetent, if made to anybody except a medical 
 attendant. Bacon v. Charlton (7 Cush. 581, 586). It has frequently 
 been stated by text- writers and judges that such statements, if made 
 by a patient to a physician, may be given in evidence; but no adjudi- 
 cation of that point has been found." 
 
 BiGELOw, C. J.: "In Bacon v. Charlton (7 Cush. 581, 586) it^was 
 held^that--a~par-ty-"ti3-an actioft might ojive I'n pyirlpnrp Viic nyyp CTrnplai'its, 
 exclaniations, and expressions, such as usuall y and natiirally accom- 
 pany and iiidicatejpodiiy pain^or injury^butjhat a^ 
 and narrations of prior occurrences _by_ him , although connected w ith 
 and relating to his rnala^dy or injury, are inco mpetent and _ought,to be 
 excluded. It was intimated in that case that a different rule might be 
 applicable to statements made by a patient to a medical man; and, on 
 consideration, we entertain no doubt that there is a well-founded dis- 
 tinction between these two kinds or species of evidence. ... Its ad- 
 missibility is an exception to the general rule of evidence, which 
 has its origin in the necessity of the case. ... To the argument against 
 their competency founded on the danger of deception and fraud, the 
 answer is that such representations are competent only when made to a 
 person of science and medical knowledge, who has the means and oppor- 
 tunity of observing and ascertaining whether the statements and declara- 
 tions correspond with the condition and appearance of the persons 
 making them, and the present existing symptoms which the eye of ex- 
 perience and skill may discover. Nor is it to be forgotten that statements 
 made to a physician for the purpose of medical advice and treatment 
 are less open to suspicion than the ordinary declarations of a party. 
 They are made with a view to be acted on in a matter of grave per- 
 sonal concernment, in relation to which the party has a strong and 
 direct interest to adhere to the truth. ... It is suggested, in behalf of 
 the defendant, that the statements in the present case were made by the 
 plaintiff after the commencement of this action. But we do not think 
 that for this reason only they ought to have been rejected. It was a 
 circumstance which may have detracted from the weight of the evidence 
 of the opinion of the physician, so far as it was founded on these state- 
 ments. .. ^ut as th e statements wer e made to a medical man_ ajid-Jor the 
 purpose nf receiving meriu-al^^rlYire, fjjg^ were competent and admis- 
 
 SiBIiTs- 
 
 9 — Endicott, J., in Roosa v. Loan Co., ness] these declarations are admitted from 
 332 Mass. 439 (1882): "While a witness necessity because in this way only can the 
 not an expert can testify only to such bodily condition of the party ... be as- 
 exclamations and complaints as indicate certained. But the necessity does not ex- 
 present existing pain and suffering, ti phy- tend to declarations by the party as to the 
 sjcian may testify to a statement or nar- cause of the injury . . . which may be 
 rative given by his patient in relation to proved by other evidence." 
 liis condition, symptoms, sensations, and Compare the authorities cited in W., § 
 feelings, both past and present. In both 1722. 
 these cases [physician and ordinary wit- 
 
No. 350. II. BODILY OR MENTAL CONDITION. 329 
 
 ROCHE V. RAILROAD CO. (1887). 
 105 N. Y. 29^, II N. E. 630. 
 
 Peckham, J. : "The only question in this case arises upon the ad- 
 mission of the testimony of a third party that the plaintiff, some days 
 after the happening of the accident which caused her injury, 
 ""^ complained that she was suffering pain in her injured arm. The 
 witness did not testify that on these occasions the plaintiff screamed 
 or groaned, or gave other manifestations of a seemingly involuntary 
 nature and indicative of bodily suffering, but he proved simple state- 
 ments or declarations made by plaintiff', that she was at the time of 
 making them suffering with pain in her arm. The plaintiff was her- 
 self sworn and proved the injury and the pain. The condition of the 
 arm the night of the accident was also proved; that it was very much 
 swollen and black all around it, and subsequently red and inflamed, 
 and continued swollen and inflamed more or less for a long time. The 
 defendant challenges the evidence of complaints of pain thus made, on 
 the ground that it was incompetent, and the argument made was that 
 the evidence as to the injury and its extent could not be thus corrobo- 
 rated by mere hearsay. 
 
 "Prior to the time when parties were allowed to be witnesses, the rule 
 in this class of cases permitted evidence of this nature. Caldwell v. 
 Murphy, II N. Y. 416; Werely v. Persons, 28 N. Y. 344. These cases 
 show that the evidence was not confined to the time of the injury, 
 or to mere exclamations of pain. The admissibility of the evidence was 
 put, in the opinion of Judge Denio, in 11 N. Y., supra, upon the neces- 
 sity of the case, as being the only means by which the condition of the 
 sufferer as to enduring pain could, in many instances, be proved. . . . 
 After the adoption of the amendment to the Code, permitting parties 
 to be witnesses, the question under discussion was somewhat mooted 
 in Reed v. Railroad, 45 N. Y. 574, by Allen, J., in the course of his 
 opinion, although the precise point was not before the court. . . . The 
 case of Hagenlocher v. Brooklyn R. R., 99 N. Y. 136, i N. E. Rep. 536, 
 decides that, even since the Code, evidence of exclamations indicative 
 of pain made by the party injured is admissible. The case does not 
 confine proof of these exclamations to the time of the injury. The 
 question was asked of the plaintiff's mother: 'How long after injury 
 was your daughter confined in the bed?' Answer. She was for about 
 four weeks. Question. What expressions did she make, or what mani- 
 festations, showing that she suffered pain?' This shows there was 
 no confinement of the evidence to the time of the injury. The evi- 
 dence given, however, was of screams when the plaintiff's foot was 
 touched, and of her exclamations of pain when even the sheet was per- 
 mitted to touch the foot. The evidence was permitted on the ground 
 that it was of a nature which substantially corroborated the plaintiff 
 as to her condition. 
 
330 HEARSAY rule: (b) exceptions. No. 350. 
 
 "Having thus admitted evidence of this kind since the adoption of 
 the Code amendment permitting parties to be witnesses, the question 
 is whether there is such a clear distinction between it and evidence of 
 simple declarations of a party that he was then suifering pain, but 
 giving no other indications thereof, as to call for the adoption of a 
 different rule. It seems to us that there is. Evidence of exclamations, 
 groans, and screams is now permitted, more upon the ground that it 
 is a better and clearer and more vigorous description of the then exist- 
 ing physical condition of the party by an eye-witness than could be 
 given in any other way. It characterizes and explains such condition. 
 Thus, in the very last case cited, it was shown( that the foot was very 
 much swollen, and so sore than the sheet could not touch it. How was 
 the condition of soreness to be shown better than by the statement that, 
 when so light an article as a sheet touched the foot, _ the patient 
 screamed with pain ? It was an involuntary and natural exhibition 
 and proof of the existence of intense soreness and pain therefrom. 
 True, it might be simulated, but this possibility is not strong enough 
 to outweigh the propriety of permitting such evidence as fair, natural, 
 and original corroborative evidence of the plaintiff as to his then physi- 
 cal condition. Its weight and propriety are not, therefore, now sus- 
 tained upon the old idea of the necessity of the case. 
 
 "But evidence of simple declarations of a party, made some time 
 after the injury, and not to a physician for the purpose of being attended 
 to professionally, and simply making the statement that he or she is 
 then suffering pain, is evidence of a totally different nature, is easily 
 stated, liable to gross exaggeration, and of a most dangerous tendency, 
 while the former necessity for its admission has wholly ceased. As is 
 said by Judge Allen, in Reed v. Railroad, supra, the necessity for giving 
 such declarations in evidence, where the party is living and can be 
 sworn, no longer existing, and that being the reason for its admission, 
 the reason of the rule ceasing, the rule itself, adopted with reluctance 
 and followed cautiously, should also cease. . . . For these reasons, the 
 evidence of Mr. McElroy, as to the plaintiff's declarations of existing 
 pain, when they were walking in the street together, long after the 
 accident, should not have been received."^" 
 
 10 — Canty, J.j diss., in Williams v. K. be uttered? One person complains cheer- 
 Co., 68 Minn. 55, 70 N. W. 860 (1897): fully, and even laughs and jokes, when 
 "So narrow and strict a rule is not prac- he is suffering intense agony, while an- 
 ticable. The expression of suffering may other complains most dolefully about the 
 be one-half groans and exclamations and slightest afflictions. For these reasons, I 
 one-half words or nine-tenths of the for* cannot agree with the majority or with the 
 mer and one-tenth of the latter, or vice New York cases, which attempt to make 
 versa. How can the law say how much a distinction between words describing 
 of the utterance shall consist of words, present existing suffering and other ex- 
 and how much of groans, sighs, and ex- clamations indicating such suffering." 
 clamations, or that it may not all consist Compare the authorities cited in W., § 
 of words? Again, how can the law say 1719. 
 what degree of anguish the words shall 
 
No. 351. *^II. BODILY OR MENTAL CONDITION. 331 
 
 / 
 
 ^j^ lib. Intent and Design. 
 
 'T MUTUAL LIFE INSURANCE CO. v. HILLMON (1892). 
 145 U. S. 285, 12, Sup. gog. 
 
 Action on a life insurance policy. John W. Hillmon, the insured, 
 "who had lived in Wichita, was alleged to have been accidentally killed 
 in southern Kansas, at Crooked Creek, in a deserted region 
 " whither he had gone prospecting for a ranch site in company 
 with one Brown. The defence contended that John W. Hillmon was 
 not dead ; that the body found was that of one Walters, and that Hill- 
 mon had insured his life with the fraudulent intention of pretending 
 death in order to collect the insurance money. 
 
 Gray, J.: "This [important] question is of the admissibility of the 
 letters written by Walters on the first days of March, 1879, which were 
 offered in evidence by the defendants, and excluded by the court.^^ In 
 order to determine the competency of these letters, it is important to 
 consider the state of the case when they were offered to be read. The 
 matter chiefly contested at the trial was the death of John W. Hill- 
 mon, the insured; and that depended upon the question whether the 
 body found at Crooked Creek on the night of March 18, 1879, was 
 his body, or the body of one Walters. Much conflicting evidence has 
 been introduced as to the identity of the body. The plaintiff had also 
 introduced evidence that Hillmon and one Brown left Wichita in Kan- 
 sas on or about March 5, 1879, and travelled together through southern 
 Kansas in search of a site for a cattle ranch, and that on the night 
 of March 18, while they were in camp at Crooked Creek, Hillmon was 
 accidentally killed, and that his body was taken thence and buried. 
 The .defendants had introduced evidence, without objection, that Wal- 
 ters left his home and his betrothed in Iowa in March, 1878, and was 
 afterwards in Kansas until March, 1879; that during that time he cor- 
 responded regularly with his family and his betrothed; that the last 
 letters received from his were one received by his betrothed on March 
 3 and postmarked at Wichita, March 2, and one received by his sister 
 about March 4 or 5, and dated at Wichita a day or two before ; and that 
 lie had not been heard from since. The evidence that Walters was at 
 Wichita on or before March 5, and had not been heard from since, to- 
 gether with the evidence to identify as his the body found at Crooked 
 Creek on March 18, tended to show that he went from Wichita to 
 
 II — One of these letters was as follows, sheep-trader, for Colorado or parts Un- 
 as repeated by a witness from memory: known to me. I expect to see the country 
 "Wichita, Kansas, March 4th or sth or now. News are of no interest to you, 
 3d or 4th — I don't know — 1879. Dear Sis- as you are not acquainted here. I will 
 ter and all: I now in my usual style drop close with compliments to all inquiring 
 you a few lines to let you know that I friends. Love to all. , I am truly your 
 expect to leave Wichita on or about March brother, Fred. Adolph Walters." 
 ihe 5th, with a certain Mr, Hillmon, a 
 
332 HEARSAY rule: (b) exceptions. No. 351. 
 
 Crooked Creek between those dates. Evidence that just before March 
 5 he had the intention of leaving Wichita with Hillmon would tend to 
 corroborate the evidence already admitted, and to show that he went 
 from Wichita to Crooked Creek with Hillmon.' 
 
 "Letters from him to his family and to his betrothed were the natural, 
 if not the only attainable evidence of his intention. ... A man's state 
 of mind or feeling can only be manifested to others by countenance, 
 attitude, or gesture, or by sounds or words, spoken or written. . . . 
 The existence of a particular intention in a certain person at a certain 
 time being a material fact to be proved, evidence that he expressed that 
 intention at that time is as direct evidence of the fact as his own tes- 
 timony that he then had that intention would be. After his death, there 
 can hardly be any other way of proving it; and while he is still alive, 
 his own memory of his state of mind at a former time is no more likely 
 to be clear and true than a bystander's recollection of what he then 
 said, and is less trustworthy than letters written by him at the very 
 time and under circumstances precluding a suspicion of misrepresenta- 
 tion."" 
 
 lie. Statements by a Testator. 
 
 DOE dem. SHALLCROSS v. PALMER (1851). 
 16 Q. B. r47- 
 Ejectment. The plaintiff's lessor claimed as devisee of Francis 
 Brookes, who was heir-at-law of his brother William Brookes. The 
 defendant claimed in right of his wife Appollina, as devisee of 
 352 William Brookes. The will appeared to have been drawn orig- 
 inally so as to give the property in fee to Francis, and to have been 
 changed in William's handwriting so as to give it to Francis for life 
 
 12 — Field, C. J., in Com. v. Trefethen, determine wliat limitations in practice, if 
 
 157 Mass. 185, 31 N. E, g6i (1892): "Tlie any. must be put upon the admission of 
 
 fundamental proposition is that an inten- this kind of evidence, because all the limi- 
 
 tion in the mind of a person can only tations exist which have ever been sug- 
 
 be shown by some external manifestation, gested as necessary. The person making 
 
 which must be some look or appearance the declaration, if one was made, is dead; 
 
 of the face or body, or some act or ... and the declaration, if made, was made 
 
 speech: and that proof of either or all of under circumstances which exclude any 
 
 these for the sole purpose of showing state suspicion of an intention to make evidence 
 
 of mind or intention of the person is proof to be used at the trial." 
 of a fact from which the state of mind Start, C. J., in State v. Hayward, 62 
 
 or intention may be inferred. . . . Al- Minn. 474, 65 N. W. 63 (1895); evidence 
 
 though evidence of the conscious voluntary of the murdered person's statements as to 
 
 declarations of a person as indications of having an engagement to meet the de- 
 
 his state of mind has in it some of the fendant was admitted as a "verbal act": 
 
 elements of hearsay, yet' it closely resem- "It was not admissible, in my opinion, on 
 
 bles evidence of the natural expression of the ground that it tended to *characterize 
 
 feeling which has always been regarded her subsequent acts and her departure on 
 
 in the law, not as hearsay, but as original the fatal ride soon after she made the 
 
 evidence; and when the person making the statement,' — that is, that it was a part of 
 
 declarations is dead, such evidence is often the res gestae, — for the reason that her 
 
 not only the best, but the only evidence of statement neither accompanied nor charac- 
 
 what was in his mind at the time. . . . terized any act relevant to the issue. But 
 
 It is not necessary in the present case to it was relevant to the issue to show that 
 
No. 353. II. BODILY OR MENTAL CONDITION. 333 
 
 with remainder to Appollina. The question was whether the aherations 
 had been made before or after the execution of the will. 
 
 Campbell, L. C. J. : "The evidence relied upon consisted of declara- 
 tions by the testator, frequently made, before and nearly down to the 
 time when the will was executed, that he intended to make provision 
 by his will for Appollina Biddulph (the now defendant, Mrs. Palmer), 
 coupled with the fact that without this alteration the will, which dis- 
 poses of the whole of his property, real and personal, makes no pro- 
 vision for her. ... It may be convenient, first, to consider the question, 
 whether, if in a will which is not in the handwriting of the testator 
 an alteration appears, evidence might be received of previous declara- 
 tions by him that he intended to dispose of his property in the manner 
 in which it is disposed of by the will in its altered form. If the draft 
 of the will could be produced, corresponding with the will in its altered 
 form, would it not be admissible evidence, and might not the jury infer 
 from it that before the will was executed the draft and the will had 
 been compared, and the mistake rectified? Would not written or verbal 
 instructions from the testator to his solicitor to draw the will in the 
 altered form be equally admissible? In what respect do such verbal 
 instructions differ, for this .purpose from a contemporaneous declara- 
 tion by the testator to another person that he had determined in his 
 will to dispose of his property in the manner carried into effect by the 
 will as altered? What distinction can be drawn between the draft of 
 the will or the written instructions for the will, and the verbal declara- 
 tion of the testator's intention, except as to the strength of the evidence 
 which they respectively afford ? As to the admissibility, they all seem to 
 rest on the same principle; and, if the verbal declaration of intention 
 must be rejected, so must the draft of the will with the initials of the 
 testator affixed to it. It would not be very creditable to the law if 
 such evidence were to be excluded; as a logical inference might be 
 fairly drawn from it respecting the priority of two events, that is to say, 
 the making of the alteration and the execution of the will ; and I am not 
 aware of any principle, rule of law, decided case, or dictum against 
 the admissibility of such evidence.''^" 
 
 SUGDEN V. LORD ST. LEONARDS (1876). 
 L. R. I P. D. 154. 
 CocKBURN, L. C. J. : "This is an appeal against a decree of the 
 President of the Probate Division, granting probate of a paper pur- 
 porting to be the substance of the will of the late Lord St. Leon- 
 ards. The will was last seen on the 20th of August, 1873; the 
 death of the testator took place on the 29th of January, 1875. The will 
 
 she did meet the defendant, and evidence ment, to assign 3 wrong reason for a cor- 
 of her declarations of an intention and pur- rect conclusion, which may lead to com- 
 pose to meet him was admissible as original plications in future cases." 
 evidence to prove that she did in fact in- Compare the authorities cited in W., §5 
 tend to meet him. To sustain it on the 1725, 1726; and Nos. 30, 48, ante. 
 ground that the statement of the deceased 13 — Compare the authorities cited in W., 
 was a part of the res gestae, in my judg- §§ 112, 1735; and Nos. 30, 48, ante. 
 
334 HEARSAY rule: (b) exceptions. No. 353. 
 
 was kept in a small box placed on the floor of a room called the saloon, 
 on the ground floor of the testator's house. Upon his death it was 
 looked for in that box by the solicitor employed by the executory, and 
 it could not be found. Several questions arise from this state of facts. 
 In the first place, was the will destroyed by the testator animo revocandi 
 or not; secondly, can secondary evidence be given of its contents; 
 thirdly, if so, have we satisfactory evidence of the contents ; and lastly, 
 if the evidence is satisfactory, so far as it goes, but not altogether com- 
 plete, ought probate to be granted, so far as the evidence which we have 
 before us shows what were the contents ? . . . The last time the will 
 was seen was by Miss Sugden, on the 20th of August, 1873. Lord St. 
 Leonards was taken ill in September, 1873, and was confined to his room 
 from that time to Christmas, 1873, and during the whole of that time 
 the box was kept by Miss Sugden, as she tells us, in her own room; 
 when he again rejoined the family down stairs, she replaced the box 
 in the^ saloon, that he might not miss it, and it remained there until his 
 last illness commenced, in March, 1874. It was then again taken posses- 
 sion of by Miss Sugden, and kept by her until Lord St. Leonards' 
 death; therefore it could only have been got at by him between Christ- 
 mas, 1873, and March, 1874. Long after March, when he was stricken 
 with his last illness, and from which time he was confined to his own 
 bed-room, he again and again referred to the various provisions he had 
 made by the will, in other words, referred to the will itself as still 
 subsisting, and this again adds to the vast improbability of his having 
 destroyed the will. . . . Declarations of deceased persons are in several 
 instances admitted as exceptions to the general rule; where such per- 
 sons have had peculiar means of knowledge and may be supposed to 
 have been without motive to speak otherwise than according to the 
 truth. It is obvious that a man who has made his will stands pre- 
 eminently in that position. He must be taken to know the contents of 
 the instrument he has executed. If he speaks of its provisions, he can 
 have no motive for misrepresenting them, except in the rare instances 
 in which a testator may have the intention of misleading by his state- 
 ments respecting his will. Generally speaking, statements of this kind 
 are honestly made, and this class of evidence may be put on the same 
 footing with the declarations of members of a family in matters of pedi- 
 gree. ... I am at a loss to see why, when such evidence is held to be 
 admissible for the two purposes just referred to, it should not be equally 
 receivable as proving the contents of the will. If the exception to the 
 general rule of law which excludes hearsay evidence is admitted, on 
 account of the exceptional position of a testator, for one purpose, why 
 should it not be for another, where there is an equal degree of knowl- 
 edge, and an equal absence of motive to speak untruly?"'* 
 
 14 — The following reasoning was used that the will was in existence at a time 
 
 by Hannan, J., at the trial below: "Be- subsequently to that at which he could 
 
 lieving, as I do, the testator made these have revoked it, I am led to the conclu- 
 
 statements [alluding to the existence of sion that he had not in fact revoked it at 
 
 the will] showing a belief in his mind any time when he had the opportunity of 
 
IfO. 353. II. BODILY OR MENTAL CONDITION. 335 
 
 Jessel, M. R.: "[The reasons^" for the exceptions to the Hearsay 
 rule] all exist in the case of a testator declaring the contents of his 
 will. . . . Having regard to the reasons and principles which have 
 induced the Courts of this country to admit exceptions in the other cases 
 to which I have referred, we should be equally justified and equally 
 bound to admit it in this case. . . . We have a witness peculiarly likely 
 to know what the contents of the will were. Besides that, we have a 
 witness of unimpeached and unimpeachable integrity. We have the 
 gratification of knowing, in deciding this case, that there has been no 
 question raised as to the credibility of Miss Sugden, and this appears 
 to be an answer to that assumed danger which might apply to other 
 cases in allowing such proof as this to establish wills. . . . The case is 
 singular in that respect, and I should think it is very likely to remain 
 singular, as regards subsequent cases; therefore there is no danger in 
 admitting this evidence in this particular case, and I see no reason 
 why we should refuse to do justice now because other personp, not 
 credible witnesses, may be induced in other cases to attempt to sub- 
 stantiate fictitious wills." 
 
 James, L. J. : "In this case it is conceded that every one of those 
 declarations was admissible and was properly admitted for some purpose 
 in the cause, and thereby those declarations of the testator have become 
 legitimately known to me. I believe them to have been made by him, 
 and I believe them to be true, and, having those declarations before me 
 and so believing them, it would be a judicial lie if -I were to pretend 
 that I did not act upon them in coming to the conclusion that the evi- 
 dence of the witness as to the actual contents of the will is true." 
 
 Mellish, L. J. : "The difficulty I feel is this, that I cannot satisfac- 
 torily to my own mind find any distinction between the statement of a 
 testator as to the contents of his will, and any other statement of a' 
 deceased person as to any fact peculiarly within his knowledge, -whichy 
 beyond all question, as the law now stands, we are riot as a general 
 rule entitled to receive. ... A declaration after he has made his will, 
 of what the contents of the will are, is not a statement of anything- 
 which is passing in his mind at the time ; it is simply a statement hi a 
 fact within his knowledge, and therefore you cannot''admit it unless you 
 can bring it within some of the exceptions to the general rule that 
 hearsay evidence is not admissible to prove a fact which is stated in the 
 declaration. It does not come within any of the rules which have been 
 hitherto established, and* I doubt whether it is an advisable thing to 
 establish new exceptions in a case which has never happened before, 
 and may never happen again, for you then establish an exception which 
 more or less throws a doubt on the law."'* 
 
 getting access to it. ... I come to the 15 — See these reasons quoted anfffj No, 
 
 conclusion that his declarations down to 290, from the foregoing part of this opin- 
 
 the latest period of his life show that he ion. 
 
 died under the helief that that will was 16 — Lord Blackburn, in Woodward v. 
 
 still in existence, and rebut the presump. Goulstone, L. R. 11 App. C'as. 469 (18S6): 
 
 tion that he had revoked it." "I wish to guard myself, as the Lord 
 
336 HEARSAY rule: (b) exceptions. No. 354. 
 
 BOYLAN V. MEEKER (i860), 
 28 N. J. L. 2j6. 
 
 Ejectment; issue as to the validity of a will. Whelpley, J.: "If 
 the due and formal execution of a will can be proved by the testimony 
 of witnesses present when it was executed, the will in question 
 was so proved. Four witnesses of respectability and character 
 swear they were present, and saw it executed. Their evidence is so 
 minute in its details as to cut off all possibility of mistake. They either 
 saw what they testify or they are perjured. . . . Upon the trial, the 
 plaintiff set up against the will: I. Incapacity. 2. Forgery of the 
 will. 3. Fraud practiced on Meeker by inducing him to sign a paper with- 
 out knowing it was a, will. These defences do not support one another. 
 The evidence of incapacity does not tend to show that the instrument 
 produced was a forgery or a fraud. . . . The verdict must be supported, 
 if at all, because the will was either forged or a fraud upon Meeker, 
 effected by substituting one paper for another. 
 
 "It is manifest, from the state of the case and the course of the argu- 
 ment in this court upon this rule, that the plaintiffs relied upon the dec- 
 larations and conduct of Meeker, both before and after the day of exe- 
 cution, to show that while living he never knew of the existence of such 
 a will, and that therefore he had never knowingly executed the paper. 
 Upon the issue as to his sanity when he executed the paper, his con- 
 duct and declarations, both before and after that time tending to show 
 his want of capacity at the time, were competent evidence for the plain- 
 tiffs. All the authorities support that position. But the case clearly 
 shows that these declarations were offered, received, and pressed 
 upon the jury as the proper foundation of a verdict against the 
 will, on the broad ground, that even if the testator had testa- 
 mentary capacity, yet that he never executed the paper as a will because 
 these declarations showed his utter ignorance of any such paper, and 
 were, if true, inconsistent with the idea of its execution by him. The 
 admissibility of this evidence on the issue of fraud and forgery has been 
 argued on two grounds, first, that they were exterior manifestations of 
 an inward condition of mind, that is to say, ignorance of the existence 
 of the will. It is argued . . . that sanity and ignorance are both states 
 of mind, that exterior manifestations must be relied upon to prove both. 
 If this were so, there might be some force in the argument. But . . , 
 the exterior manifestations of insanity are involuntary, those of knowl- 
 edge purely voluntary. . . . The devisor may to secure his own peace 
 and comfort during life . . . conceal the nature of his testamentary 
 dispositions and make statements calculated and intended to deceive those 
 
 Chancellor did, against being supposed, ex- in Sugden V. Lord St. Leonards, or the 
 
 cept so far as it is necessary for the pres- propositions of law there laid down. I 
 
 ent case, to be either aflfirming or dis- wish to leave them just in the same way 
 
 affirming the decision which was come to as before, as far as I am concerned." 
 
No. 355. II. BODILY OR MENTAL CONDITION. 337 
 
 ■with whom he is conversing. He has neither the sanctity of an oath 
 or the strong bond of self-interest to secure his adherence to the truth."^^ 
 
 RUSLING V. RUSLING (1883). 
 S6 N. J. Eq. 603, 607. 
 
 Dixon, J. : "The appellants, a son and the widow of Gershom Rus- 
 ling, deceased, impeach the validity of his will, executed with due for- 
 mality on January 4th, 1875. . . . Two grounds of validity are 
 ""* alleged by the caveators: first, want of testamentary capacity 
 in the testator; second, undue influence by the proponents. It is not 
 necessary to state in this opinion, with any degree of detail, the evi- 
 dence offered to show the testator's mental incapacity at the time of 
 executing this will, January 4th, 1875. It is enough to say that in our 
 judgment it establishes nothing more than an occasional forgetfulness 
 of the names and faces of persons with whom he did not come into 
 frequent contact. . . . For the proof of undue influence, the caveators 
 mainly rely upon, declarations of the testator, made some time before 
 and some time after the execution of the will, respecting the conduct 
 towards him of the favored legatees. These declarations are not ad- 
 missible as evidence of the facts which they were offered to prove. 
 
 "When undue influence is set up in impeachment of a will, the 
 ground of invalidity to be established is that the conduct of others has 
 so operated upon the testator's mind as to constrain him to execute an 
 instrument to which of his free will he would not have assented. This 
 involves two things : first, the conduct of those by whom the influence 
 is said to have been exerted; second, the mental state of the testator, 
 as produced by such conduct, which may require a disclosure of the 
 strength of mind of the decedent and his testamentary purposes, both 
 immediately before the conduct complained of and while subjected to 
 its influence. In order to show the testator's mental state at any given 
 time, his declarations at that time are competent, because the conditions 
 of the mind are revealed to us only by its external manifestations, of 
 which speech is one. Likewise, the state of mind at one time is com- 
 petent evidence of its state at other times not too remote, because mental 
 conditions have some degree of permanency. Hence in an inquiry re- 
 specting the testator's state of mind, before or pending the exertion of 
 the alleged infl uence, his words, as well as h is other behavio r, may V>p 
 shown for tne'^urpose ol Ulingmg into Vl^w ihe mental condit ion whi ch 
 
 "rr^Au'pA llimili iJIDl fHfMMim fliJl HlM >^mW'W\U1\r •mi\ c,iKc>.r].,^,nt "^...^ 
 
 ditions. Tn.f^}ii<j extent his d eclaration s have legal value . But for the 
 purpose of proving matters "not related to his existing mental state, the 
 assertions of the testator are mere hearsay. They cannot be regarded 
 as evidence of previous occurrences, unless they come within one of the 
 recognized exceptions to the rule excluding hearsay testimony."^^ 
 
 17 — Compare the authorities cited in W., i8 — Colt, J., in Shailer v. Bumstead, 99 
 
 i 1736. Mass. 122 (1868) : "When used for such 
 
338 HEARSAY RULE : (b) EXCEPTIONS. No, 356. 
 
 MOONEY V. OLSEN (1879). 
 22 Kan. 6p, 78. 
 
 Action brought by Olsen against Mooney and another to set, aside 
 
 the will of Lydia Foster, who died July 8, 1876. Trial by a jury, at 
 
 the March term, 1877, of the district court, and verdict against 
 
 *** the will. The defendants below filed their motion for a new 
 
 trial, which was overruled. 
 
 Brewer, J.: "Action to set aside a will. Trial by a jury, and ver- 
 dict against the will. The first matter which we shall notice is the 
 alleged error in the admission of testimony. The will was challenged 
 on the ground of undue influence, as well as on the ground that the 
 decedent, at the time of its execution, was not of sound mind and mem- 
 ory. It appeared that the decedent was taken sick July 3d, and died 
 on the 8th; that Dennis Mooney and Mrs. Mary McCarthy, the prin- 
 cipal devisees and legatees under the will, were in attendance upon 
 her during most of this time, and that the will was written the day 
 before her death. Over objection, the court permitted testimony of the 
 conduct of these devisees, not merely at the time of making the will, 
 but also while present at the home of the decedent during the sick- 
 ness, and immediately after her death; also of the statements of the 
 decedent made prior to her sickness, (some a long time prior,) showing 
 estrangement from and ill feeling towards Dennis Mooney; also of 
 letters from him to her tending to show the same state of facts; also 
 of an engagement of marriage, expected to be consummated on the tenth 
 of July, to one who was present during most of the sickness, and was 
 not mentioned in the will. . . . 
 
 "The question of undue influence is one of peculiar character. It 
 does not arise until after the death of the one who alone fully knows 
 the influences which have produced the instrument. It does not touch 
 the outward act, the form of the instrument, the signature, the acknowl- 
 edgment; it enters the shadowy land of the mind in search of its con- 
 dition and processes. Was the mind strong, or weak? clear of com- 
 prehension, or only feeble grasping the facts suggested? Was the will 
 resolute and firm, or enfeebled by disease and bodily weakness? What 
 prompted the making of the will? Was is the thought of the testatrix, 
 or the suggestion of interested parties ? What influences were brought 
 to bear to secure its execution, or the disposition of any specific prop- 
 erty ? These are inquiries always difficult of solution, often made more 
 so by the fact that the parties most competent to give information are 
 
 purpose, they are mere hearsay, which by security which it is essential to preserve"; 
 
 reason of the death of the party whose they are thus inadmissible so far as they 
 
 statements are so offered, can never be form "a declaration or narrative to show 
 
 explained or contradicted by him. Ob- the fact of fraud or undue influence at a 
 
 tained, it may be, by deception or persua- previous period." 
 
 sion, and always liable to the infirmities Compare the authorities cited in W., S 
 
 of human recollection, their admission for 1738, notes i, 2, 3. 
 such purpose would go far to destroy the 
 
No. 356. II. BODILY OR MENTAL CONDITION. 339 
 
 the ones most interested to withhold it. To fully inform the jury,' they 
 should know the condition of the testatrix's mind at the time of the 
 execution, the circumstances attending the execution, the relations and 
 affections of the testatrix, and such other matters as tend to show what 
 disposition if in health and strength, and uninfluenced, she would prob- 
 ably have made of her property. This opens a broad field of inquiry, 
 and gives to such a contest over a will a wider scope of investigation 
 than exists in ordinary litigation. 'Put Yourself in His Place,' is the 
 title of a recent popular novel, and is appropriate to indicate the scope 
 of such an inquiry. . . . 
 
 "It is sometimes broadly stated that the declarations of a testator, 
 whether prior or subsequent to the execution of the will, are inadmis- 
 sible for the purpose of impeaching it. In a certain sense this is doubt- 
 less true. As a mere matter of impeaching the will, they are hearsay 
 and inadmissible. They are not like statements of an ancestor in 
 derogation of title or elimination of estate, which, being declarations 
 against interest, are admissible against the heir, for there is no adverse 
 interest in a devisor against the will or the devisee. They are more 
 like declarations of a grantor, after grant, in limitation of his grant, 
 and are strictly hearsay. Thus, if a testator, after executing a will, 
 should say that the will was forced from him, or that it was executed 
 against his will, and through undue influence, such statement, of itself, 
 would be hearsay and inadmissible. . . . 
 
 I "But while declarations are not admissible as mere impeachment! 
 of the validity of a will, they are admissible as evidence of the testator's I 
 state of mind. A man's words show his mental condition. It is com- J 
 mon to prove insanity by the party's sayings as well as by his acts.j 
 One's likes and dislikes, fears and friendships, hopes and intentions,' 
 are shown by his utterances; so that it is generally true that, when- 
 ever a party's state of mind is a subject of inquiry, his declarations are 
 admissible as evidence thereof. In other words a declaration which 
 is sought as mere evidence of an external fact, and whose force depends 
 upon its credit for truth, is always mere hearsay if not made upon oath ; 
 but a declaration which is sought as evidence of what the declarant 
 thought or felt, or of his mental capacity, is of the best kind of evidence. 
 . . . Therefore where, as in a case like this, the circumstances attend- 
 ing the execution raise a doubt as to the mental strength of the tes- 
 tatrix, evidence that the disposition of the property runs along the line 
 of her established friendships and previously-expressed intentions tends 
 strongly against the idea of any undue influence; while evidence that 
 it is contrary to such friendships and intentions makes in favor of im- 
 proper influences. The testimony of her declarations shows a state of 
 mind tinfriendly to one of the principal devisees, and his letters to her 
 indicate a mutual understanding of this estrangement and ill-will. Such 
 an estrangement is out of harmony with the recognition in the will."^* 
 
 19 — Compare the authorities cited in W., § 1738, note 4. 
 
340 HEARSAY rule: (b) exceptions. No. 357. 
 
 WATERMAN v. WHITNEY (1854). 
 II N. Y. J57. 
 
 Probate of a will, contested on the grounds both of mental unsound- 
 ness and of undue influence. After several witnesses had been called 
 and examined on the part of the defendants, to prove the mental 
 capacity of the testator, all of whom had testified to facts tending 
 to show that the mind and the memory of testator, who had been a 
 man of vigorous intellect, were impaired at and previous to the time 
 of the execution of the will, and that he had not mental capacity to 
 make a will, the defendants called one Emory as a witness, by whom 
 they offered to prove that the testator, after the execution of the will, 
 had stated to the witness how he had disposed of his property in his 
 will, which was in a manner entirely different from the actual disposi- 
 tion of it by the will in question. This evidence was objected to; the 
 court sustained the objection, and the defendants' counsel excepted. 
 
 Sei.den, J. : "The mental strength and condition of the testator is 
 directly in issue in every case of alleged undue influence; and the same 
 evidence is admissible in every such case, as in cases where insanity or 
 absolute incompetency is alleged. It is abundantly settled that upon 
 either of these questions, the declarations of the testator, made at or 
 before the time of the execution of the will, are competent evidence. 
 The only doubt which exists on the subject is whether declarations; 
 made subsequent thereto may also be received. . . . The insanity or ira- ' 
 becility of the testator subsequent to making the will may be proved, 
 in connection with other evidence, with a view to its reflex influence 
 upon the question of his condition at the time of executing the will. 
 . . . Here the offer was to prove declarations of the testator, stating that 
 contents of the will to be entirely different from what they were in fact ; 
 and these declarations were offered in connection with other evidence 
 bearing upon the competency of the testator at and before the execution 
 
 JOf the will. Tf n^Milnnrn nf thp |ppnta1 f nnHi'fi'i^i^ (-|f tVin ^yirfntnr nftnr 
 
 Ithe execution of the will is admissible in any case, as to his capacity 
 /when the will was executed (and the competency of such proof seems 
 I to be sustained by many authorities and contradicted by none) ; then it 
 'is rl mr. f\\ fft the— tcctirH on y offered here should hsvs bppn admit ted. 
 > . . There is no conflict between the doctrine here advanced in regard 
 to the admissibility of the species of evidence in question, and the rule 
 before adverted to, which excludes it when the issue is as to the revoca- 
 tion of a will. The difference between the two cases consists in the 
 different nature of the inquiries involved. One relates to a voluntary 
 and conscious act of the mind ; the other to its involuntary state or 
 condition. To receive evidence of subsequent declarations in the former 
 case, would be attended with all the dangers which could grow out of 
 changes of purpose, or of external motives operating upon an intelli- 
 
No. 359. II. BODILY OR MENTAL CONDITION. 341 
 
 gent mind. No such dangers would attend the evidence upon inquiries 
 in relation to the sanity or capacity of the testator."^" 
 
 12. SPONTANEOUS EXCLAMATIONS. 
 
 THOMPSON V. TREVANION (1693). 
 
 Skinner 402. 
 
 Action for assault and battery upon the wife of the plaintiff, Lord 
 Holt "allowed that what the wife said immediate upon the hurt received 
 and before that she had time to devise or contrive anything for 
 her own advantage, might be given in evidence."^^ 
 
 INSURANCE COMPANY v. MOSLEY (1869). 
 
 8 Wall. 397. 
 
 SwAYNEj J. : "This is a writ of error to the Circuit Court of the 
 United States for the Northern District of Illinois. The action was 
 upon a policy of insurance. It insured Arthur H. Mosley against 
 ^" loss of life, or personal injury by an accident within the mean- 
 ing of the instrument, and was issued to Mrs. Arthur H. Mosley, the 
 wife of the assured, for her benefit. The declaration was in assumpsit. 
 The defendant pleaded the general issue, and the cause was tried by 
 a jury. The plaintiff recovered. During the trial a bill of exceptions 
 was taken by the plaintiff in error, by which it appears that the con- 
 test between the parties was upon the question of fact, whether Arthur 
 H. Mosley, the assured, died from the effects of an accidental fall 
 down stairs in the night, or from natural causes. The defendant in 
 €rror was called as a witness in her own behalf, and testified, 'that the 
 assured left his bed Wednesday night, the 18th of July, 1866, between 
 12 and I o'clock; that when he came back he said he had fallen down 
 the back stairs, and almost killed himself ; that he had hit the back part 
 of his head in falling down stairs; . . . she noticed that his voice 
 trembled; he complained of his head, and appeared to be faint and in 
 
 20 — Compare the authorities cited in W., tion of some matter which happened at 
 
 §5 228, 229, 1740; and No. 38, ante. another time"; citing Thompson v. Tre- 
 
 21 — Aveson v. Kinnaird, 6 East 193 vanion. 
 (1805): Counsel: "Declarations by the wife R. v. Foster, 6 C. & P. 325 (1834)* 
 ■upon her elopement from her husband, ac- manslaughter by driving a cabriolet over 
 ■cusing him of misconduct, could not be a person; a statement made by the de- 
 given in evidence against him in an action ceased, to one who did not see the acci- 
 against the adulterer." Ellenborough, L. dent but immediately afterward heard the 
 C. J. : "It is not so clear that her dec- deceased groan and went up and asked what 
 larations made at the time would not be was the matter, was admitted; Park, J.: 
 evidence under any circumstances. If she "It was the best possible testimony that 
 declared at the time that she fled from under the circumstances can be adduced 
 immediate terror of personal violence from to show what it was that had knocked 
 the husband, I should admit the evidence; the deceased down"; citing Aveson v 
 though not if it were a collateral declara- Kinnaird. 
 
342 HEARSAY rule: (b) exceptions. No. 359. 
 
 great pain.' To the admission of all that part of the testimony which 
 relates to the declarations of the assured, about his falling down stairs, 
 and the injuries he received by the fall, the counsel of the defendants 
 objected. The court overruled the objection, and the defendants ex- 
 cepted. William H. Mosley, son of the assured, testified, in behalf 
 of the plaintiff 'that he slept in the lower part of the building occupied 
 by his father; that about 12 o'clock of the night before mentioned 
 he saw his father lying with his head on the counter, and asked him 
 what was the matter ; he replied thai he had fallen down the back stairs 
 and hurt himself very badly.' The defendants objected to both the ques- 
 tion and answer. 
 
 This statement presents the questions. . . . They are, whether the court 
 erred in admitting the declarations of the assured, as to his bodily in- 
 juries and pains, and whether it was error to admit such declarations to 
 prove that he had fallen down the stairs. It is to be remarked^ that the 
 declarations of the former class all related to present existing facts at 
 the time they were made. Those of the latter class were made imme- 
 diately, or very soon after the fall; the declarations to his son, before 
 he returned to his bed-room; those to his wife upon his reaching it. 
 ... It is not easy to distinguish [the case of Com. v. Pike, 3 Cush. 
 181] and that of The King v. Foster, in principle, from the case before 
 us, as regards the point under consideration. In Aveson v. Kinnaird, 
 it was said by Lord EUenborough that the declarations were admitted 
 in the case in Skinner, because they were a part of the res gestcB. To 
 bring such declarations within the principle, generally, they must be 
 contemporaneous with the main fact to which they relate. But this rule 
 is, by no means, of universal application. . . . Here the principal fact 
 is the bodily injury. The res gestee are statements of the cause made 
 by the assured almost contemporaneously with its occurrence and those 
 relating to the consequences made while the latter subsisted and were 
 in progress. . . . Rightly guarded in its practical application, there is 
 no principle in the law of evidence more safe in its results. ... In the 
 ordinary concerns of life, no one would doubt the truth of these declara- 
 tions, or hesitate to regard them, uncontradicted, as conclusive. Their 
 probative force would not be questioned."^ 
 
 I — Lacombe, J., in U. S. v. King, 34 are satisfied tliat it was made at a time 
 
 Fed. R. 314 (1888), charging the jury: when it was forced out as the utterance 
 
 "There is a principle in the law of evi- of a truth, forced out against his will or 
 
 dence which is known as *res gestae'; that without his will, and at a period of time 
 
 is, the declarations of an individual made so closely connected with the transactioa 
 at the moment of a particular occurrence, , that there has beet* no opportunity for 
 
 when the circumstances are such that we subsequent reflection or determination as 
 
 may assume that his mind is controlled to what it might or might not be wise for 
 
 by the event, may be received in evidence, him to say. 
 
 because they are supposed to be expres- Bleckley, C. J., in Travelers' Ins. Co. ir. 
 
 sions involuntarily forced out of him by Sheppard, 85 Ga. 751, 776, 12 S. E. iS 
 
 the particular event, and thus have an (1890): "There must be no fair opportun- 
 
 element of truthfulness they might other- ity for the will of the speaker to mouU 
 
 wise not have. . . . But you are not to or modify them. His will must have be- 
 
 give any more weight to a declaration thus come and remained dormant, so far as any 
 
 made, or any weight at all, ' unless you deliberation in concocting matter for speecli 
 
No. 360. 
 
 12. SPONTANEOUS EXCLAMATIONS, 
 
 313 
 
 (C) THE HEARSAY RULE NOT APPLICABLE.^ 
 
 MILNE & SEVILLE v. LEISLER (1862). 
 
 f H.&N. /86. 
 
 Trover for 3000 pieces of calico, shirtings, &c. Pleas (inter alia), 
 Not guilty, and that the goods were not the plaintiffs*. Issues thereon. 
 The plaintiffs, Messrs. Milne and Seville, were cotton spinners 
 ^^^ at Oldham, and the defendant was a shipping merchant carrying 
 on business at Manchester. According to the statement of the plaintiff's 
 witnesses, on the i6th May, 1861, Francis Atkin, who carried on busi- 
 ness at Manchester under the name of Atkin and Company, went to the 
 warehouse of the plaintiffs at Manchester to purchase some "shirtings/' 
 The plaintiff's salesman remarked that he was a stranger, whereupon 
 Atkin said, "I am not buying for myself, I will give you the house, if 
 you prefer it, that I am buying for, and references respecting myself." 
 
 or sekcting words is concerned. More- 
 over, his speech, besides being in the pres- 
 ent time of the transaction, must be in 
 the presence of it in respect to space. He 
 must be on or near the scene of action 
 or of some material part of the action. 
 His declarations must be the utterance of 
 human nature, of the genus homo, rather 
 than of the individual. Only an oath can 
 guarantee individual veracity. But spon- 
 taneous impulse may be sufficient sanction 
 for the speech of man as such, — man, dis- 
 tinguished from this or that particular 
 man. True, the verbal deliverance in each 
 instance is that of an individual person. 
 But if the state of his mind be such that 
 his individuality is for the time being sup- 
 pressed and silenced, so that he utters 
 the voice of humanity rather than of him- 
 self, what he says is regarded by the law 
 as in some degree trustworthy." 
 
 Shelby, in Jack f. Mutual J?. F, Life 
 Ass'n, 51 C. C. A. z^t 113 Fed. 49 (1902), 
 admitting statements made by an insured 
 after being poisoned and just before his 
 death: ''While it is said that the declara- 
 tions must be contemporaneous with the 
 main fact, no rule can be formulated by 
 which to determine how near, in point of 
 time, they must be. No two "ases are 
 exactly alike, and the determination of this 
 question is always inseparable from the 
 circumstances of the case at bar. The 
 transaction in question may be such that 
 the res gestae would extend over a day, 
 or a week, or « month." 
 
 Compare the authorities cited in W., § 
 1750- 
 
 2 — Professor James Bradley Thayer, in 
 XV Amer. Law. Rev, 5 , 81 (1881); 
 "If it be true, as it seems to be, that the 
 phrase, ires gestae} first came into use in 
 evidence near the end of the last century, 
 one would like to know what started the 
 use of it just then. That is matter for 
 conjecture rather than opinion. It would 
 seem probable that it was called into use 
 mainly on account of its 'convenient ob- 
 scurity.* . . , The law of hearsay at that 
 time was quite unsettled; lawyers and 
 judges seem to have caught at the term 
 res gesta, — , , . which was a foreign term, 
 a litle vague in its application, and yet in 
 some applications of it precise, — they seem 
 to have caught at this expression as one 
 that gave them relief at a pinch. They 
 could not, in the stress of business, stop 
 to analyze minutely; this valuable phrase 
 did for them what the limbo of the theolo- 
 gians did for them, what a *catch-air does 
 for a busy housekeeper or an untidy one 
 — some things belonged there, other things 
 might for purposes of present convenience 
 be put there. We have seen that the 
 singular form of phrase soon began to 
 give place to the plural; this made it con- 
 siderably more convenient; whatever multi- 
 plied its ambiguity, multiplied its capacity; 
 it was a larger *catch-all.' To he sure* 
 this was a dangerous way of finding relief, 
 and judges, text-writers, and students have 
 found themselves sadly embarrassed by the 
 growing and intolerable vagueness of the 
 expression." 
 
344 HEARSAY RULE : (c) LIMITATIONS. No. 360. 
 
 Atkin subsequently wrote the following order, having previously given 
 the names of the three persons mentioned in it as referees. The words 
 in italics were afterwards inserted by the plaintiff Seville : — "Order from 
 F. Atkin and Company, 15, New Cannon Street [for Grant, Murdoch 
 and Company, Liverpool], to Messrs. Milne, Seville and Company, 2000 
 pieces [describing them by trade marks], 2000 other [describing them], 
 and 3000 [describing them], gold. To be completed in 4 to 6 weeks. F. 
 Atkin and Company, 2 per cent. 14 days, or J4 per cent. 30 days. F. 
 Burton, of James Burton and Son; James Leach and Company; Lord, 
 of E. L. Gault, 29, Booth St. [/. C. Bond, of J. H. Littledale, Liver- 
 pool'].'' Atkin wanted to have the goods immediately, but the salesman 
 refused until he had consulted his principals. On the following day, the 
 plaintiff, Seville, was informed by the salesman of what had taken place 
 between him and Atkin; whereupon Seville made personal inquiries of 
 the above-named referees, and according to his evidence the result was 
 that he "determined not to trust Atkin with the goods." A message 
 was then sent to Atkin to meet the plaintiffs on the exchange in the 
 afternoon. The salesman first met Atkin there, and told him that Seville 
 required to have the name of the person for whom he was buying the 
 goods. Atkin said he would give him the name, and handed to him an 
 envelope with "Grant, Murdoch and Co.," written upon it. The plain- 
 tiff, Seville, then came, and the salesman gave him the envelope and 
 introduced Atkin to him. Seville then said aloud, "Grant, Murdoch and 
 Company; are those the parties?" Atkin replied "Yes." Seville then 
 observed, "This firm are strangers to me, and before I can trust them 
 with the goods I must have some reference, and know something about 
 them." Atkin said he could give a respectable reference, and he gave 
 the name "J. C. Bond, of J. H. Littledale and Company." Seville then 
 wrote the name in pencil on the envelope, arid said he would write to 
 Liverpool and make the necessary inquiries, and if the answer was satis- 
 factory the goods would be delivered. Atkin pressed to have some of 
 the goods delivered immediately, to enable him to get them from the 
 bleachers before the Whitsuntide holidays, and he said that he would 
 send the money before the 28th of that month, and that the references 
 would be all right. Seville thereupon consented to let Atkin have a 
 portion of the goods; and, on his return to the warehouse, Seville in- 
 serted in the above order the words in italics. 2500 pieces of the shirt- 
 ings were delivered to Atkin the same evening, and 500 the next morning. 
 An invoice was sent with them headed "Grant, Murdoch and Company, 
 per F. Atkin." 
 
 In the course of Seville's examination, the plaintiff's counsel pro- 
 posed to give in evidence a letter which Seville said he wrote on the 
 17th after his return to the warehouse, to Messrs. Francis and Corner, 
 the plaintiffs' brokers in Liverpool. The defendant's counsel objected 
 that the letter was not admissible in evidence, but Wilde, B., overruled 
 the objection and received it. The letter was as follows: — 
 
No. 360. VERBAL ACTS ; RES GESTAE. 345 
 
 "Manchester, 17th May, 1561. 
 "Gentlemen, 
 
 "We wish you to call at J. H. Littledale and Company's, and see 
 J. C. Bond, and inquire as to the trustworthiness of Messrs. Grant, Mur- 
 doch and Company, of your town; and also of F. Atkin and Company, 
 of this city, who is making a rather large purchase of goods for the above 
 party, and who refers us to Mr. Bond. Write by return directed to the 
 Mill. "Yours, &c., 
 
 "Messrs. Francis and Co." "J. Seville." 
 
 It subsequently appeared that Grant, Murdoch and Company had no 
 knowledge whatever of the transaction, and that Atkin sent the goods to 
 the defendant, who had previously undertaken to consign them to Singa- 
 pore on Atkin's account, and had advanced him 857/. upon them. At- 
 kins was afterwards declared bankrupt. 
 
 The case on the part of the defendant was that he had bona fide 
 advanced the money to Atkin, who had purchased the goods on his own 
 account: that Atkin had given the name of Grant, Murdoch and Com- 
 pany as the shippers of the goods. 
 
 Martin, B., left it to the jury to say whether they believed the wit- 
 nesses on the part of the plaintiffs or the defendant. If the plaintiffs 
 intended to sell the goods to Grant, Murdoch and Company, they were 
 entitled to recover, because Grant, Murdoch and Company never did in 
 fact buy them, so that there was no contract or sale at all. If, on the 
 other hand Atkin bought the goods on his own account, and they were 
 sold by the plaintiffs to him, though the sale might have been avoided 
 on the ground of fraud, yet as the plaintiffs had not elected to do so, 
 Atkin, or any person to whom he sold or pledged the goods, would 
 have a valid title to them, and the defendant would be entitled to the 
 verdict. The learned Judge read the letter of the 17th of May, and 
 observed that if it was a genuine letter written at the time stated, it 
 seemed to establish the plaintiff's case. The jury having found a ver- 
 dict for the plaintiffs. 
 
 Edward James, in last Michelmas Term, obtained a rule nisi for a 
 new trial, on the ground of the improper reception in evidence of the 
 letter of the 17th of May. 
 
 Edward lames and Aspland, in support of the rule : — "First, the letter 
 was not admissible in evidence. The plaintiffs were bound to prove that 
 the goods were sold on the credit of Grant, Murdoch and Company.. 
 Now, if the reasoning on the other side be correct, the plaintiffs might 
 prove that fact by the production of their books in which they had deb- 
 ited Grant, Murdoch and Company with the amount of the goods ; for the 
 entry would be an act done at the time of the sale and would show an 
 impression on the mind of the plaintiffs that the goods were purchased, 
 for Grant, Murdoch and Company. But their books would clearly not 
 be admissible for that purpose. (Wilde, B. : "Suppose a witness said, 
 'I saw one of the plaintiffs when he was leaving the exchange, and he 
 
346 HEARSAY rule: (c) limitations. No. 360. 
 
 told me that they had just sold 2000/. worth of goods to Grant, Murdoch 
 and Company, would that be admissible?") It would be no more admis- 
 sible than if the plaintiffs had publicly proclaimed upon the exchange 
 that they had sold certain goods to a certain person. (Pollock^ C .B.: 
 "Suppose the plaintiffs had gone immediately after the sale to their ware- 
 house, and ordered the removal of the goods to another part of it, with 
 the view of being delivered to Grant, Murdoch and Company, would not 
 evidence of that fact be admissible?") As against the plaintiffs any dec- 
 laration made or act done at the time of the sale would be evidence, but 
 they cannot by their conduct, make evidence in their favour. (Wilde, 
 B. : "Suppose .one of the plaintiffs had said, 'I know we sold the goods 
 to Grant, Murdoch and Company, because at the time of the sale I 
 told our warehouseman to mark the goods for them.' ") That would not 
 be evidence for the plaintiffs. This letter was no part of the res gestEe." 
 Pollock, C. B. : "If a man on leaving his counting-house said to his 
 servant 'I have just sold so and so,' that would not be evidence of the 
 sale. Here, however, . . . this letter, being part of the transaction of a 
 reference made in pursuance of the direction of the party purchasing, was 
 admissible". Wilde, B. : "It seems to me that the case is the same as 
 if the plaintiff, Seville, had himself made the inquiry, and that it makes 
 no difference whether he directed another person to inquire or himself 
 wrote to Bond. Then would the fact that the plaintiff, Seville, wrote to 
 Bond, and received a certain character, be admissible ? I think it would, 
 as part of the res gestae. I do not think its admissibility could be sup- 
 ported on the ground suggested by the plaintiff's counsel, viz., that it 
 was something which the plaintiffs did when they had no interest to 
 deceive. ... If the evidence were admissible on that ground, every- 
 thing a man said on the day when he made a bargain, and still more, 
 everything he did, would be admissible. It seems to me that would be 
 very dangerous ground. . . . The real ground is that this was an inquiry 
 made by the direction of the plaintiff in pursuance of an authority from 
 Atkin [the defendant's agent], and therefore was part of the res gesta."^ 
 
 W. D. Evans, Notes to Pothier on Obligations, II, 242 (1806): 
 "Speech is a mode of action; . . . and I conceive that the distinction 
 between the cases in which the immediate action of speech fur- 
 *"■*■ nishes a material indication with respect to the object of the in- 
 quiry, and those in which it is a mere act of narration, will in most cases 
 
 3 — Mr. Gaston (afterwards Judge), in part of the fact, to be investigated. There 
 
 Cherry v. Slade, 2 Hawks 400, 404 (1823), may be a controversy whether A. B. at a 
 
 arguing pro querente against declarations certain time spoke certain words, and those 
 
 of residence: *'It is sometimes said that who heard him are of course receivcQ to 
 
 there is an exception when words are the prove the fact. ITie words spoken con- 
 
 res gestae or part of the res gestae. But currently with an act done are often a 
 
 this seems not to be accurate. The words part of the act, and give it a precise 
 
 are then received, not as evidence of the and peculiar character, and therefore must 
 
 truth of what was declared, but because be testified, — not to show that the words 
 
 the speaking of the words is the fact, or spoken are true, but to show that they 
 
No. 363. VERBAL ACTS ; RES GESTAE. 347 
 
 furnish the proper principle. . . . Many acts are in themselves of an 
 equivocal nature, and the effect of them depends upon the intention or 
 disposition from which they proceed, which is in general best determined 
 by the expressions accompanying them. Wherever, therefore, the de- 
 meanor of a person at a given time becomes the object of inquiry, his 
 expressions, as constituting a part of that demeanor, and as indicating 
 his present intent and disposition, cannot properly be rejected in evi- 
 dence as irrelevant. . . . This proposition [that a declaration accompan- 
 ied by an act is admissible] is only correct where the expressions are 
 demonstrative of the nature of the act itself." 
 
 Jeremy Bentham, Principles of Morals and Legislation (1780), c. 
 XVIII, par. XXXV, note: "What is meant by payment is always an act 
 of investitive power, as above explained, — an expression of an act 
 of the will, and not a physical act; it is an act exercised with 
 relation indeed to the thing said to be paid, but not in a physical sense 
 exercised upon it. A man who owes you ten pounds takes up a handful 
 of silver to that amount and lays it down at a table on which you are 
 sitting. If then, by words or gestures or any means whatever, address- 
 ing himself to you, he intimates it to be his will that you should take up 
 the money and do with it as you please, he is said to have paid you. But 
 if the case was that he laid it down, not for that purpose but for some 
 other — for instance, to count and examine it, meaning to take it up again 
 himself or leave it for somebody else — he has not paid you. Yet the 
 physical acts exercised upon the pieces of money in question are in both 
 cases the same. Till he does express a will to that purport, . . . [there 
 is no payment]." 
 
 WEBB v. RICHARDSON (1869), 
 
 42 Vt. 465, 472. 
 
 Trespass q. c. f., the issue being as to the title to a certain lot 64, 
 except the north 20 acres. 
 
 Peck, J. : "The Court properly admitted proof of the declara- 
 tions of Reuben Hawkins, made while working on lot sixty-four 
 to the effect that he called it his 'possession lot,' and that he was claiming 
 and getting it by possession. But the Court was in error in excluding 
 'evidence to show that at other times, prior to 1822, the said Hawkins 
 said the same things when not on lot sixty-four, but at his house and in 
 sight of it, and pointing it out.' To constitute a continuous possession it 
 is not necessary that the occupant should be actually upon the premises 
 continually. The mere fact that time intervenes between successive acts 
 
 were in fact spoken. For example: Did representation in tlie course of a bargain? 
 
 A commit an assault on B? What he said If so, that representation was an ingredi- 
 
 when he laid his hands on B will show ent in the bargain." 
 
 whether it was an angry or friendly act. Compare the authorities cited in W., § 
 
 Did the agent of defendant make a certain 1770. 
 
348 HEARSAY rule: (c) limitations. No. 363. 
 
 of occupancy does not necessarily destroy the continuity of the poses- 
 sion. The kind and frequency of the acts of occupancy, necessary to 
 constitute a continuous possession, depend somewhat on the condition of 
 the property, and the uses toi which it is adapted in reference to the cir- 
 cumstances and situation of the possessor, and partly on his intention. 
 If, in the intermediate time between the different acts of occupancy, there 
 is no existing intention to continue the possession, or to return to the 
 enjoyment of the premises, the possession, if it has not ripened into a 
 title, terminates, and cannot afterward be connected with a subsequent 
 occupation so as to be made available toward gaining title; while such 
 continual intention might, and generally would, preserve the possession 
 unbroken. This principle is tersely stated in the civil law, thus : a man. 
 may retain possession by intention alone, yet this is not sufficient for the 
 acquisition of possession. ... If the admissibility of such declarations is 
 put the ground of declarations constituting part of the res gestcs, they 
 are admissible, as the res gestce is not confined to a particular act of 
 occupancy done upon the premises, but is the continual possession, which, 
 includes the successive acts of occupancy. Since a party who has once 
 commenced a possession of land, by actual entry and acts of occupancy 
 upon it, may continue to possess it during intervals when not upon it, he 
 may claim it during such intervals as well as when actually upon the 
 land doing acts of possession; and the fact of his making such claim is 
 provable by evidence of his declarations made at the time, in the same 
 manner and to the same effect as if made while on the land, doing an act 
 of possession. Such declarations to show the adverse character of the 
 possession are quite as much in the nature of facts as in the nature of 
 a medium of proof."* 
 
 TILTON v. BEECHER (1875). 
 
 Abbot fs Rep. (AT. Y.) /, 800. 
 
 Action for criminal conversation. With reference to the plaintiff's 
 having made inconsistent statements or admissions of the falsity 
 of his claim, by stifling the matter when first publicly in- 
 vestigated, it was desired to show the true significance of his 
 conduct in handing to his agent, Mr. Moulton, a statement to be given 
 by *he agent to the investigating committee, appointed by the church tO' 
 which the parties belonged. Mr. Fullerton, for the plaintiff, to the wit- 
 ness, Mr. Moulton: "What did he [the plaintiff] say in regard to it at 
 
 4— Manning, J., in Cooper v. State, 63 and illustrative of it are considered as ap- 
 
 Ala. 80 (1879): "What a person says that pertaining to the act or situation, and, like 
 
 is explanatory of an equivocal or ambigu- expression on the human face, as indicat- 
 
 ous act which he is then doing or situa- ing character, — the character of the act or 
 
 tion which he is then occupying — as that situation which they are related to and 
 
 of a person in possession of property — are blended with. This is the central idea 
 
 may be proved as res gestae, a part of of the doctrine respecting what is called 
 
 the thing then going on, to elucidate and res gestae." 
 
 define the character of such equivocal act Compare the authorities cited in W., §1 
 
 or situation. Words so connected with 1778, 1779. 
 
No. 365. VERBAL ACTS ; RES GESTAE. 349 
 
 the time he gave it to you? [Objected to.J ... If I hand your Honor 
 a certain paper, with a request to do a certain thing with it, for a certain 
 purpose, is not that direction evidence ?" Mr. Beach, for the plaintiff : 
 "Let me put an illustration to your Honor. . . . Suppose Mr. Evarts 
 comes to me and delivers a blow in my face, and at the instant of deliv- 
 ering that blow he accuses me of having injured him in some form; he 
 gives the motives and the purpose with which he delivers that act; can 
 that act be proved against Mr. Evarts, without permitting him to give 
 the declaration accompanying the act ?" Mr. Evarts, for the defendant : 
 "That is a spoken act. That is not hearsay. It is a part of the blow; 
 it is a spoken act. Some confusion, no doubt arises in lawyers' discus- 
 sions about hearsay evidence that comes by word of mouth in connection 
 with that act; but your Honor is familiar with the distinction that our 
 learned friend has given. . . . Now if he [Mr. Tilton] gave instructions 
 to take that piper and lay it before the council, or carry it to Mr. 
 Beecher, that is a part of the act of delivering it to him. But this ques- 
 tion is large enough to draw out, and so I suppose is intended to draw 
 out, a larger line of hearsay evidence, to wit, conversations between Mr. 
 Moulton and Mr. Tilton, with which Mr. Beecher cannot be affected"; 
 Judge Neilson : "That distinction must be observed."" 
 
 FABRIGAS V. MOSTYN (1773). 
 
 20 How. St. Tr. iST- 
 
 Action for false imprisonment by the Governor of Minorca ; defence, 
 that the plaintiff excited sedition and riot. The reasonableness of the 
 governor's apprehension of riot came into issue; the aid-de-camp 
 "* to the governor testified that a native magistrate came to him to 
 report that "Fabrigas said he would come with a mob . . . and they 
 would see better days tomorrow". Mr. Peckham, for the defence : "You 
 need not mention what the mustastaph told you; that is not regular". 
 Mr. J. Gould : "I should be glad to know how the Governor can be ap- 
 prized of any danger unless it is by one or other of his officers informing 
 him there is likely to be such and such a thing happen ?" Mr. Peckham : 
 
 5 — Coltman, J,, in Wright v. Tatham, 7 were intended to explain, and so to har- 
 
 A. & E. 361 (1837): "Wliere an act done monize with them as obviously to consti- 
 
 is evidence per se, a declaration accom- tute one transaction." 
 
 panyingr that act may well be evidence, Holmes, C. J., in Com. v. Chance, 174 
 
 if it reflects light upon or qualifies the Mass. 245, 250, 54 N. E. 551 (1899); mur- 
 
 act. But I am not aware of any case der of R.; the fact that one Mrs. O'B. 
 
 where the act done is in its own nature during a quarrel with her husband took 
 
 irrelevant to the issue and where the dec- two bullets from a closet and said, "The 
 
 laration per se is inadmissible, in which third one killed R.," was excluded: "The 
 
 it has been held that the union of the two act of taking out the bullets needed no 
 
 has rendered them admissible." explanation; it is not the law that any 
 
 Hosmer, C. J., in Enos , v. Tuttle, 3 and all conversation which happens to be 
 
 Conn. 230 (1820), referring to declara- going on at the time of an act can be 
 
 lions as to the purpose of giving a note: proved if the act can be proved." 
 
 "[They were] well calculated to unfold Compare the authorities cited in W., §§ 
 
 the nature and quality of the facts they 1773, 1775. 
 
350 HEARSAY rule: (c) limitations. No. 365. 
 
 "Hearsay is no evidence . . ." Mr. J. Gould; "We do not take it for 
 granted that it is really so; only that this gentleman, hearing of this, 
 tells the Governor". Mr. Lee, for the defence: "It is no evidence of the 
 fact; if you mean it only as a report, we do not object." 
 
 PARNELL COMMISSION'S PROCEEDINGS (1888). 
 
 nth, 13th, 17th, i8th days. Times' Rep. p. 103, i^p. 
 
 The Irish Land League and its leaders being charged with a con- 
 spiracy to encourage outrage and agrarian violence, and the general state 
 of the country as to disquiet and apprehension being a part of the 
 " issue, it was conceded that the fact of repeated complaints being 
 
 made to the police and to employers by tenants and others was provable ; 
 in this process, testimony was proposed of employers as to reports made 
 to them by herdsmen and others of injuries to cattle, etc., the reports 
 being offered in verbal detail; to this Sir Charles Russell objected, for 
 Mr. Parnell, as hearsay; the Attorney-General, in reply: "I would re- 
 spectfully submit that my learned friend has forgotten the rule that the 
 res gestae may be proved, and if in the course of the proof of the facts 
 it is shown that servants have made inquiries with regard to them and 
 reported the result, those reports form part of the res gestos for the pur- 
 pose of ascertaining under what circumstances the occurrences took 
 place." Sir C. Russell: "As regards the res gestce, what is the res? That 
 certain cattle were injured. How can it be part of the res gestce that a 
 man who was present, and saw the injury, afterwards made a statement 
 to a third person of what he had seen? To say that this is part of the 
 res gestce is an entire misapprehension of the rule.'' . . . President Han- 
 NEN : "The fact that a particular report had been made by a person in 
 discharge of his duty was admissible in evidence, not that the contents 
 of that report should be taken as evidence of the facts to which it re- 
 lated. If the matter rested there, without there being any other evidence 
 of the facts except that contained in the report, that could not be re- 
 garded as evidence of the facts by the Court. . . . There is a broad dis- 
 tinction between a thing being merely admissible in evidence and its 
 being taken as proof of the facts alleged."^ 
 
 6 — Doster, C. J., in State Bank v. litigated questions in the case — First, were 
 
 Hutchinson, 62 Kan. 9, 61 Pac. 443 (1900); threats made? And, if so, secondly, were 
 
 action on a homestead mortgage; defence, they communicated to Mrs. Hutchinson? 
 
 duress of the wife by threats to prosecute And, if so, thirdly, did they produce the 
 
 the husband, communicated by the latter claimed eifect? As to the second of these 
 
 to the former: "A daughter of the Hutch- as well as the first, the meritorious ques- 
 
 insons testified that she overheard the con- tion was, had a verbal act been done? 
 
 versation between her father and mother. That is, hati a communication been made? 
 
 in which the former disclosed to the latter That act, if done, was not incidental or 
 
 the threats which Morris had made. Conn- collateral in nature. It was one of the 
 
 sel for plaintiff in error also contend three principal litigated matters in the 
 
 against the admissibility of this testimony, case, and, being such, the performance of 
 
 upon the ground that it was hearsay in the act was provable by the testimony of 
 
 character. . . . Neither of these contentions any one who, if competent, was a witness 
 
 is sound. There were three substantive to it. The question was not whether 
 
No. 367. VERBAL ACTS ; RES GESTAE. 351 
 
 STATE V. FOX (1856). 
 
 25 N. J. L. 566, 602. 
 
 Murder. A witness for the prosecution testified to meeting the ac- 
 cused on the day of the murder, and proceeded to fix the time and place. 
 "It was between twenty and twenty-five minutes past ten o'clock 
 ^ ' when I reached home; I cannot fix the time by any other way 
 than what my sister said; my sister remarked that I had been very 
 quick, and that made me look at the clock." The counsel for the de- 
 fendant here objected to the reception of the conversation of the said 
 ■witness with her said sister as evidence in this cause, and moved the 
 •Court to overrule the same. The counsel for the State objected, and 
 the Court thereupon admitted the said conversation in evidence, and 
 refused to overrule the same. To the question, "When was your attention 
 first called to the fact of meeting the man referred to by you," the wit- 
 nessed answered: "My attention was first called to the matter by being 
 sent for to Brunswick by Mr. Jenkins. I first saw it in the papers ; I 
 think it was the 'New York Daily Times ;' I think this was the following 
 Tuesday. I heard of it from a neighbor before I left Brunswick, but I 
 did not know that I knew about the affair. . . . What I saw in the 'Times' 
 called my attention to the fact of having been to Brunswick that day, 
 and meeting that man, and I mentioned it." Question : "What particular 
 feature in the affair did the neighbor call your attention to before you 
 left New Brunswick?" Answer: "She said, perhaps the man I met on 
 Thursday morning might have had something to do with it." The coun- 
 sel for the defendant here objected to the reception, as evidence in this 
 cause, of the said conversation of the said witness with the said neigh- 
 bor, and the remark of the said neighbor to the said witness, and moved 
 to overrule the same. To which the counsel for the State objected. The 
 Court thereupon admitted the said conversation and remark in evidence. 
 Green, C. J.: "The evidence was not offered or admitted to prove 
 the truth of the facts stated to the witness, but merely to show what it 
 was that called the attention of the witness to a fact stated by her or that 
 fixed the fact in her recollection. Whether the statement of the third per- 
 son was true or false was perfectly immaterial. The fact that the com- 
 munication was made, and not its truth or falsity, was the only material 
 
 Hutchinson's communication to his wife although it consists of the speech of third 
 
 was truthful, but it was whether the com- persons. A familiar illustration of this 
 
 munication had been in fact made. The rule is afforded in cases of defense against 
 
 rule is general that, where a substantive assaults. It is always admissible in such 
 
 litigated fact is the speech of .a person, case to show the making of threats by 
 
 one who heard the utterance is admitted those who overheard them, and their com- 
 
 to testify to it, and the testimony so re- munication to the defendant, upon the 
 
 ceived is not hearsay. ... It is a general. strength of which he armed himself, and 
 
 rule in the law of evidence that, when resisted the assault of his antagonist" 
 
 the inducing cause of the action of a per- Compare the authorities cited in W., § 
 
 son is the subject of inquiry, the informa- 1789. 
 tion upon which he acted may be stated, 
 
352 HEARSAY rule: (c) limitations. No. 367. 
 
 point. The conversations were not hearsay, within the proper meaning 
 of the term."' 
 
 (D) HEARSAY RULE AS APPLIED TO COURT OFFI- 
 CERS. 
 
 ALLEN V. ROSTAIN (1824). 
 II S. & R. 362, 374. 
 Issue as to a partnership. The general reputation of the defendants 
 as partners was declared admissible by the trial Court; though no testi- 
 mony to that effect was in fact introduced. On appeal, the ruling 
 * was held erroneous. 
 
 TiLGHMAN, C. J. : "But the defendants' counsel contend, that there 
 probably was an injury sustained in this instance, because, the jury hav- 
 ing heard the Court's opinion, that general reputation was evidence, might 
 have been influenced, by their own knowledge of a general reputation in 
 Pittsburgh, that the defendants were engaged in a general partnership. 
 But we must not suppose that the jury acted illegally. They were sworn 
 to determine according to the evidence; that is, the evidence as given 
 upon oath, in open court. Although it was once held that a juror might 
 determine upon facts within his own knowledge, not proved by his oath,* 
 yet that opinion has long been reprobated, in consequence of the confu- 
 sion and injustice that would result from it. The parties have a right to 
 hear the evidence, that they may have an opportunity of cross-examining 
 the witness, and contradicting him, if necessary, by other evidence."" 
 
 ANDERSON'S TRIAL (1680). 
 
 7 How. St. Tr. 811, 874. 
 
 Conviction for saying mass as a priest. The defendant, Marshal.hav- 
 
 ing been asked after verdict whether he had anything to say, protested that 
 
 the testimony to his confession of being a priest was insufficient. To 
 
 ""^ this the Court replied, by the Recorder : "As for the first part, it 
 
 is plain, to the satisfaction of everybody, that there hath been two suffi- 
 
 7 — Compare the authorities cited in W., stranger; 2, They may have evidence from 
 
 § 1791. their own personal knowledge, by which 
 
 8 — Vaughan, C. J. in Bushel's Case, 6 they may be assured and sometimes are 
 How. St. Tr. 999, loio, Vaughan 135 that what is deposed in court is absolutely 
 (1670): "It is true, if the jury were to false; ... 3, The jury may know the wit- 
 have no other evidence for the fact but nesess to be stigmatized and infamous." 
 what is deposed in court the judge might 9 — Cal. P. C. 1872, § 11 20: "If a jurof 
 know their evidence. . . . But the evidence has any personal knowledge respecting a 
 which the jury have of the fact is much fact in controversy in a cause, he must 
 other than that, for, i, Being returned of declare the same in open court during the 
 the vicinage whence the cause of action trial. If during the retirement of the 
 ariseth, the law supposeth them thence to jury, a juror declare a fact which could 
 have sufficient knowledge to try the mat- be evidence in the cause, as of his own 
 ter in issue (and so they must) though no knowledge, the jury must return into court. 
 evidence were given on either side in In either of these cases, the juror making 
 court, but to this evidence the judge is a the statement must be sworn as a witness 
 
No. 370. (d) application to court officers. 353 
 
 cient witnesses, upon whose testimony you are convicted; . . . And 
 now, because I will put it out of all doubt, it is not the business nor the 
 duty of the Court to give any evidence of any fact that they know of 
 their own knowledge, unless they will be sworn for the purpose; for, 
 though they do not know it in their own private consciences to be true, 
 yet they are obliged to conceal their own knowledge, unless they will be 
 sworn as witnesses. But now you are convicted, I must take the lib- 
 erty to tell you, that at your last trial you did own yourself to be a 
 priest. And I must put you in mind further of something which you 
 may very well remember; when I detained you after your acquittal, and 
 recommitted you when Sir G. Wakeman was discharged, I did then tell 
 you, you have owned yourselves to be priests, I was bound to take no- 
 tice of that confession of yours, and therefore obliged to detain you ; such 
 a token as that is may perhaps bring it to your memory."^" 
 
 TILTON V. BEECHER (1875). 
 
 Abbott's Rep. (AT. Y.) 11, 902. 
 
 Criminal conversation. At an early stage of the controversy, before 
 litigation, Mr. Benjamin F. Tracy had been called into consultation, as 
 a friend, between the two parties ; in the plaintiff's case on the trial, 
 some testimony had reflected on Mr. Tracy's share in the negoti- 
 ations; and in his opening address for the defendant, Mr. Tracy at a 
 certain point in his speech said: "My name has been dragged into this 
 trial by the plaintiff and his counsel and his main witness, in a manner 
 that leads me to make you a personal statement of my relations to this 
 scandal" ; and was proceeding to do so, when the following colloquy en- 
 sued: Mr. Beach: "Mr. Tracy, do you propose to be a witness to what 
 you are about to state?" Mr. Tracy: "If necessary I do, sir." Mr. 
 Beach: "I submit to your Honor, that the gentleman has no right to 
 make a long written personal statement in his opening to the jury, which 
 he does not propose to verify as a witness. It is not the ofKce of an 
 opening." Judge Nelson : "I presume that the counsel proposes to prove 
 what he states in his opening. ... At the same time he would be at 
 liberty to prove it otherwise." Mr. Porter: "We propose to prove it, sir, 
 as we choose, and by what evidence we will. The counsel cannot call 
 upon us to specify the particular witness by which we propose to prove 
 it; nor can he interrogate the counsel who is engaged in the opening of 
 this case as to whether he is the party by whom the proof is to be made. 
 That will depend upon subsequent developments in the case." Mr. 
 Beach: "My point, sir, cannot be evaded or changed. I have made no 
 
 and «aamined in the presence of the par- For the question whether the judge who 
 
 t'«s." testifies is thereby disqualified to sit, see 
 
 Compare the authorities cited in W., 5 post. No. 407. For the question of taking 
 
 1800, and Nos. 408, 637, post. judicial notice from the bench, see post, 
 
 10 — Compare the authorities cited in W., No. 634. 
 § 180S. 
 
354 HEARSAY RULE. No. 370. 
 
 objection to the counsel stating any fact which they propose to prove in 
 this case, whether that fact, when proved, will go to his exculpation from 
 the grave imputation which has been cast upon him in the course of this 
 trial or not; if it is announced as a fact that he expects to prove upon the 
 trial, I have no more to say. . . . What I do say is, sir, that when this 
 gentleman, thus situated in this case, departs from the ordinary course 
 of an opening and commences a part of his address with the preface that 
 he will now make a personal explanation to this jury, that it is not in 
 sense or in purpose a statement of facts which he expects to prove, it is 
 the assumption of a right separate from the character of counsel to make 
 a personal explanation and appeal to the jury, which, I submit to your 
 Honor, is improper. That is all I object to, sir; and if this counsel, or 
 any other counsel, will avow that Mr. Tracy or this defence intends to 
 prove the facts or the circumstances which he now proposes to state, of 
 course my voice is silenced, sir." Judge Neilson: "If it is a personal ex- 
 planation, not to be followed up by proof — perhaps not in its nature sus- 
 ceptible of proof — then it should be omitted. I think we agree about 
 that; the rule is very clear. . . ." Mr. Porter: "I evidently misunder- 
 stood my friend, from his last explanation. I unhesitatingly avow that 
 the facts which Gen. Tracy proposes to present are facts which we do 
 propose to prove." Mr. Tracy: "I shall endeavor, gentlemen, to state no 
 fact in what I am about to say which will not be made plain to you by 
 evidence which we shall introduce, or which will not be made sufficiently 
 plain to you without further evidence, by the comments I may make upon 
 the facts already in evidence."^^ 
 
 PEOPLE V. WELLS (1893). 
 
 100 Cal. 45P, 34 Pac. 1078. 
 
 McFarland, J.: "The information charges the defendant. Wells, 
 jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forg- 
 ery. Wells was tried separately, was convicted, and appeals from 
 "'^ the judgment and from an order denying a new trial. . . . Upon 
 cross-examination of appellant the prosecuting attorney asked him these 
 questions : 'Where did you formerly reside ? Do you know the Highland 
 National Bank of Newberg, New York? Were you married to your pres- 
 ent wife when you came here with her? Did you not admit in a letter 
 to Mr. M. C. Belknap that in November, 1893, you forged your father- 
 in-law's name to a note in New York ?' To these questions counsel for 
 appellant objected as incompetent, immaterial, irrelevant, and not in 
 cross-examination ; declared that they were unfair to appellant ; and asked 
 the court to instruct the district attorney not to ask any more such ques- 
 tions. The record merely shows that after discussion the objections were 
 sustained. The first three of these questions are important mainly as 
 leading up to the last one, the asking of which was utterly inexcusable 
 
 II — Compare the authorities cited in W., S 1807, and No. 409, post. 
 
No. 371. (d) application to court officers. 355 
 
 and reprehensible. ... It would be an impeachment of the legal learn- 
 ing of the counsel for the people to intimate that he did not know the 
 question to be improper and wholly unjustifiable. Its only purpose, there- 
 fore, was to get before the jury a statement, in the guise of a question, 
 that would prejudice them against appellant. If counsel had no reason 
 to believe the truth of the matter insinuated by the question, then the 
 artifice was most flagrant; but if he had any reason to believe in its 
 truth, still he knew that it was a matter which the jury had no right to 
 consider. The prosecuting attorney may well be assumed to be a man 
 of fair standing before the jury; and they may well have thought that he 
 would not have asked the question unless he could have proved what it 
 intimated if he had been allowed to do so. He said plainly to the jury 
 what Hamlet did not want his friends to say : 'As, "Well we know" ; or 
 "We could, an if we would" ; or "If we list to speak" ; or "There be, an 
 if there might :" ' This was an entirely unfair way to try the case ; and 
 the mischief was not averted because the Court properly sustained the 
 objection (though we think it should have warned counsel against the 
 course which he was taking) and instructed the jury specially on the 
 subject. The wrong and the harm was in the asking of the question. 
 Of course, in trials of criminal cases, questions as to the admissibility 
 of evidence will frequently arise about which lawyers and judges may 
 fairly differ in opinion; and in such cases defendants must be satisfied 
 when Courts sustain their objections. But where the prosecuting attor- 
 ney asks a defendant questions which he knows and every judge and 
 lawyer knows to be wholly inadmissible and wrong, and where the ques- 
 tions are asked without the expectation of answers, and where the clear 
 purpose is to prejudice the jury against the defendant in a vital matter 
 by the mere asking of the questions, then a judgment against the defend- 
 ant will be reversed, although objections to the questions were sustained, 
 unless it appears that the questions could not have influenced the ver- 
 dict."" 
 
 12 — Compare the authorities cited in W., § z8o8. 
 
356 BOOK 1, PART II. No. 372. 
 
 TITLE IV- 
 
 PRECAUTIONARY (OR, PROPHYLACTIC) 
 RULES. 
 
 ^General Nature of these Rules. "Among the different sorts of 
 rules of Auxiliary Probative Policy, this class is marked out by the spe- 
 cial feature that they operate by applying to the evidence, in ad- 
 *** vance of its admission, some expedient calculated to supply an 
 antidote or prophylactic for the supposed weakness or danger inherent 
 in the evidence. The several rules of this sort thus are united by this 
 common feature, in contrast with the four other classes of auxiliary 
 rules. 
 
 "These Precautionary (or. Prophylactic) Rules operate in one or both 
 of two slightly different ways. The expedient which they apply serves 
 either to eliminate the supposed danger by counteracting its influence in 
 advance, or to furnish a means by which it can be discovered and other 
 measures can be taken to counteract it at the trial. The Oath operates 
 in the first way only, by setting against the witness' motives to falsify 
 his fear of divine punishment and thus nullifying in advance the influ- 
 ence of the former. The Perjury-Penalty operates in the same way, 
 merely substituting the fear of temporal punishment for the fear of 
 divine punishment. The Publicity rule operates in both of the above 
 ways, first, by subjecting the witness to the fear of the later conse- 
 quences of public opinion and of a present exposure by interested by- 
 standers, and, next, by providing the means of counteracting his possible 
 falsities through the presence of those who can contradict him. The 
 Sequestration of Witnesses operates partly in the first way, by preventing 
 collusion, but chiefly in the second way, by furnishing a means of ex- 
 posing that collusion if it has already taken place. The Notice of Evi- 
 dence to the Opponent operates only in the second way, by furnishing 
 the opponent, in advance of the trial, with knowledge of the proposed 
 evidence, and by thus enabling him to prepare to expose false evidence; 
 though perhaps there is also involved an effect of the first sort, in sub- 
 jectively deterring the opponent from offering that which he knows can 
 he shown false." 
 
 I — Quoted from W., § 1813. 
 
No. 374. OATH. 357 
 
 SUB-TITLE I. 
 
 OATH. 
 
 LADY LISLE'S TRIAL (1685). 
 
 II How. St. Tr. 325. 
 
 Jeffries, C. J., threatening a refractory witness : "Now mark what I 
 say to you, friend . . . Thou hast a precious immortal soul, and there is 
 nothing in the world equal to it in value. . . . Consider that the 
 ^^^ Great God of Heaven and Earth, before whose tribunal thou and 
 we and all persons are to stand at the last day, will call thee to an ac- 
 count for the rescinding his truth, and take vengeance of thee for every 
 falsehood thou tellest. I charge thee, therefore, as thou will answer it 
 to the Great God, the judge of all the earth, that thou do not dare to 
 waver one tittle from the truth, upon any account or pretense whatso- 
 ever; ... for that God of Heaven may justly strike thee into eternal 
 flames and make thee drop into the bottomless lake of fire and brimstone, 
 if thou offer to deviate the least from the truth and nothing but the 
 truth."^ 
 
 OMICHUND V. BARKER' (1744). 
 
 Willes 538, I Atk. 45, I Wils. 84. 
 
 Several persons resident in the East Indies and professing the Gen- 
 too religion, having been examined on oath administered according to 
 the ceremonies of their religion under a commission sent there 
 '* from the Court of Chancery, it became a question whether those 
 depositions could be read in evidence here; and the Lord Chancellor, 
 conceiving it to be a question of considerable importance, desired the 
 assistance of Lee, Lord Chief Justice, B. R., Willes, Lord Chief Jus- 
 tice, C. B., and the Lord Chief Baron Parker, who after hearing the 
 case argued were unanimously of the opinion that the depositions ought 
 to be read. 
 
 2 — Ashburn^ J., in Clinton v. State, 33 accountability, the law best insures the 
 
 Oh. St. 33 (1877): "The purpose of the utterance of truth." 
 
 oath is not to call the attention of God 3 — ^A case of which Burke said in 1794. 
 
 to the witness, but the attention of the (Works, Little & Brown's ed., XI, 77) : 
 
 witness to God; not to call upon Him to "one of the cases the most solemnly ar- 
 
 punish the false-swearer, but on the wit- gued that has been in man's memory, with 
 
 ness to remember that he will surely do so. the aid of the greatest learning at the 
 
 By thus laying hold of the conscience cf bar, and with the aid of all the learning 
 
 the witness and appealing to his sense of on the bench, both bench and bar being 
 
 then supplied with men of the first form." 
 
358 PRECAUTIONARY RULES. ^ No. 374. 
 
 WiLLES, C. J. : "As to the general question, Lord Coke has resolved 
 it in the negative, Co. Lit. 6 b, — that an infidel cannot be a witness; 
 and it is plain by this -word 'infidel' he meant Jews as well as heathens, 
 that is, all who did not believe the Christian religion. . . . Having 
 now, I think, sufficiently shown that Lord Coke's rule is without foun- 
 dation either in Scripture, reason, or law, that I may not be understood 
 in too general a sense, I shall repeat it over again, that I only give 
 my opinion that such infidels who believe a God and that he will punish 
 them if they swear falsely, in some cases and under some circumstances, 
 may and ought to be admitted as witnesses in this though a Christian 
 country. And on the other hand, I am clearly of opinion that sucli 
 infidels (if any such there be) who either do not believe a God, or if 
 they do, do not think that he will either reward or punish them in 
 this world or in the next, cannot be witnesses in any case nor under 
 any circumstances, for this plain reason, because an oath cannot pos- 
 sibly be any tie or obligation upon them.* . . . 
 
 "In order to obtain justice the plaintiff in this cause laid his case 
 properly before the Court of Chancery, and prayed a commission to 
 Calcutta; and the Court of Chancery, I think very rightly and with 
 great justice, ordered a commission to go, and that the words 'on the 
 Holy Evangelists' should be omitted, and the word 'solemnly' inserted 
 in their room ; and likewise very prudently directed that the commis- 
 sioners should certify upon the return of the commission in what manner 
 the oath was administered to the witnesses examined on the commis- 
 sion; and what religion they were of. The commissioners accordingly 
 returned that the oath was administered to the witnesses in the same 
 words as here in England, which fully answers the objection (if there 
 was anything in it) that the form of the oath cannot be altered; and 
 they certified that after the oath was read and interpreted to them, 
 they touched the Bramin's hand or foot, the same being the usual and 
 most solemn manner in which oaths are administered to witnesses who 
 profess the Gentoo religion, and in the same manner in which oaths are 
 usually administered to persons who profess the Gentoo religion on their 
 examination as witnesses in the Courts of justice erected by virtue 
 of his Majesty's letters-patent at Calcutta; and they further certified 
 that the witnesses so examined were all of the Gentoo religion. This 
 certificate, I think, fully answers the objection that it does not appear 
 that the witnesses believe a God, or that he will punish them if they 
 swear falsely; which, as I have already said, I admit to be requisites 
 absolutely necessary to qualify a person to take an oath. . . . Lord Stairs 
 in his Institutes of the Laws of Scotland, p. 692, confirms this, where 
 he says, 'It is the duty of Judges in taking the oaths of witnesses to 
 do it in those forms that will most touch the conscience of the swearers 
 according to their persuasion and custom; and though Quakers and 
 
 4 — In -another of the reports, his words be witnesses, yet I am as clearly of opin- 
 
 are; "Though I am of opinion that infi- ion that if they do not believe a God or 
 
 dels who believe a God and future rewards future rewards and punishments, they 
 
 and punishments in the other world may ought not to be admitted as witnesses." 
 
No. 375. I. OATH, 359 
 
 fanatics deviating from the common sentiments of mankind refuse to 
 give a formal oath, yet if they do that which is materially the same, it 
 is materially an oath.' . . . The form of oaths varies in countries ac- 
 cording to different laws and constitutions, but the substance is the 
 same in all. ... It would be absurd for him to swear according to 
 the Christian oath, which he does not believe; and therefore, out of 
 necessity, he must be allowed to swear according to his own notion of 
 an oath." 
 
 Hardwicke, L. C. (approving a passage from Bishop Sanderson) : 
 " 'Juramentum, saith he, est afHrmatio religioso. All that is necessary 
 to an oath is an appeal to the Supreme Being, as thinking him the re- 
 warder of truth and the avenger of falsehood.' . . . The next thing 
 ... is the form of the oath. It is laid down by all writers that the 
 outward act is not essential to the oath. ... It has been the wisdom of 
 all nations to administer such oaths as are agreeable to the notion of the 
 person taking."'' 
 
 Joseph Chitty, Criminal Law, 4th Amer. ed., I, 616 (1841) : "The 
 
 form at the assizes or sessions is, for the clerk of arraigns or of the 
 
 peace to desire the witness to take the book in his hand, and, 
 "*' when that is done, to say to him, 'The evidence you shall give 
 between our sovereign lord the king and the prisoner at the bar shall 
 
 be the truth, the whole truth, and nothing but the truth. So help you 
 God !' ; upon which the witness kisses the book."' 
 
 S—Alderson, B., in Miller v. Salomons, i„ other words, does the witness believe 
 
 7 Exch. S3S, 558, 615 (1852) : "Omichund in the existence of a God who will punish 
 
 V. Barker has settled that it ought to be his perjury? If he swears falsely, does 
 
 taken in that form and upon that sanction he believe he will be punished by ait 
 
 which most effectually binds the conscience overruling Providence, either in this world 
 
 of the party swearing. Thus, a Jew is to or in the world to come"? 
 
 be sworn on the Book of the Law and Pearson, J., in Shaw v. Moore, 4 Jones 
 
 with his head covered, a Brahmin by the L. 26 (1856): "There is no ground for 
 
 mode prescribed by his peculiar faith, a making a distinction between the fear of 
 
 •Chinese by his special ceremonies, and the punishment by the Supreme Being in this 
 
 like." Pollock, C. B.: "It appears to me world and the fear of punishment in the 
 
 to have decided merely this,— that the com- world to come. Both are based upon the 
 
 mon law of England agrees with the law sense of religion. . . . The efficacy of the 
 
 of nations, that the form of an oath is to fear of punishment in either case depends 
 
 be accommodated to the religious persua- upon the degree of belief as to the cer- 
 
 sion which the swearer entertains." Mar- tainty of that punishment, so that there 
 
 tin, 'B.: "The doctrine laid down [in can be upon reason no ground for making 
 
 Omichund v. Barker] was that the essence a distinction. The rule of law which re- 
 
 of another oath was an appeal to the Su- quires a religious sanction is satisfied in 
 
 preme Being in whose existence the person either case." 
 
 taking the oath believed, and whom he also Compare the authorities cited in W., |J 
 
 believed to be a rewarder of truth and an 1817, 1818. 
 
 avenger of falsehood." 6— The usual form of words in civil 
 
 Walworth, J., m People v. Matteson, cases differed slightly: "The evidence that 
 
 2 Cow. 433 (1824): "I apprehend the you shall give to the Court and jury 
 
 true test of the competency of a witness touching the matters in question, shall be 
 
 to be this: Has the obligation of an oatH the truth, the whole truth, and nothing 
 
 any bmdmg tie upon his conscience? Or but the truth; So help you Godl" 
 
360 PRECAUTIONARY RULES. No. 376. 
 
 BRADDON'S TRIAL (1684). 
 
 p How. St. Tr. J127, 1148. 
 
 Attorney General: "What age are you of?" Witness: "I am 
 thirteen, my lord." A. G.: "Do you know what an oath is?" W.: 
 "No." L. C. J. Jefferies": "Suppose you should tell a lie; do 
 *^^ you know who is the father of liars?" IV.: "Yes." L. C. J.: 
 "Who is it?" W.: "The devil." L. C. J.: "And if you should tell a 
 lie, do you know what will become of you?" W.: "Yes." L. C. I.: 
 "If you should call God to witness to a lie, what would become of you 
 then?" W.: "I should go to hell-fire." L. C. J.: "That is a terrible 
 thing;" and the child was admitted.^ 
 
 Statutes: California, Const. 1879, Art. I, §4: "No person shall 
 be rendered incompetent to be a witness or juror on account of his 
 
 opinion on matters of religious belief." 
 ^^' Illinois, Const. 1870, Art II, §3: "No person shall be denied 
 
 any civil or political right, privilege, or capacity, on account of his 
 religious opinions; but the liberty of conscience hereby secured shall 
 not be construed to dispense with oaths or affirmations." Rev. St. 1874, 
 c. loi, §3: An oath may lawfully be administered "in the following 
 form, to-wit : The person swearing shall, with his hand uplifted, swear 
 by the everliving God, and shall not be compelled to lay the hand on 
 or kiss the gospels." lb., § 4 : When "such person shall have conscien- 
 tious scruples against taking an oath, he shall be admitted, instead of 
 taking an oath, to make his solemn affirmation or declaration in the 
 following form, to-wit: You do solemnly, sincerely, and truly declare 
 and affirm." 
 
 7 — Campbell, C. J., in Hughes v. R. Co., would be better, we think, to put their 
 
 65 Mich. 10, 31 N. W. 60s (1887): "A testimony on the more rational ground 
 
 child cannot testify unless capable of ap- that it is calculated to be of some value, 
 
 predating the obligation of his oath, if he and capable under a proper examination of 
 
 takes an oath, or his ailirmation if that being reasonably well weighed for what 
 
 is substituted. . . . He must be able to it is worth." 
 
 comprehend it; . . . disposed to tell the England: 1885, St. 48 & 49 Vict. c. 69, 
 
 truth under some sense of obligation. ... § 4: on a charge of carnally knowing a 
 
 We are compelled to apply the law as we girl under the age of consent, where the 
 
 find it, until changed by legislation. But girl concerned "or any other child of ten- 
 
 we are greatly impressed with the prac- der years who is tendered as a witness, 
 
 tical imperfection of the present rules. In does not, in the opinion of the Court or 
 
 France, and probably elsewhere, the Courts justices, understand the nature of an oath," 
 
 refuse to administer an oath to children the child's testimony may be received with- 
 
 of tender years, and allow them to be out oath, if the Court believes that it "is 
 
 examined without anything more than possessed of sufficient intelligence to justi- 
 
 suitable cautions, leaving their statements fy the reception of the evidence, and un- 
 
 on direct and cross-examination to be tak- derstands the duty of speaking the truth." 
 
 en for what they are worth. This seems Compare the authorities cited in W., 5 
 
 to be a sensible proceeding, and is prob- 1821; and the case of R. v. Brasier, ante, 
 
 ably quite as efficacious as our present No. 61 (infant's capacity as a witness), 
 system and less likely to abuse. ... It 
 
No. 379. I. OATH. 361 
 
 Massachusetts,Rev.L.igo2,c.i7s,^ i8: "Every person who declares that 
 he has conscientious scruples against taking any oath shall, when called 
 upon for that purpose, be permitted to affirm in the manner prescribed 
 for Quakers, if the Court or magistrate on inquiry is satisfied of the 
 truth of such declaration." lb., § 19 : "Every person believing in any 
 other than the Christian religion may be sworn according to the peculiar 
 ceremonies of his religion, if there are any such. Every person not a 
 believer in any religion shall be required to testify truly under the 
 pains and penalties of perjury; and the evidence of such person's dis- 
 belief in the existence of God may be received to affect his credibility 
 as a witness." 
 
 United States, Federal Equity Rules, No. 91 : "Whenever under 
 these rules an path is or may be required to be taken, the party may, if 
 conscientiously scrupulous of taking an oath, in lieu thereof make sol- 
 emn affirmation to the truth of the facts stated by him."* 
 
 SUB-TITLE II. 
 
 PERJURY— PENALTY. 
 
 Thomas Starkie, Evidence, pi (1824). "The testimony must be 
 sanctioned, not merely by an oath, but by a judicial oath, in the course 
 of a regular proceeding, by an authorized person. For if the oath 
 "'* were extrajudicial, the witness could not be punished for com- 
 mitting perjury under that oath, and therefore one of the securities 
 for truth which the law has provided would be wanting."* 
 
 SUB-TITLE III. 
 
 PUBLICITY. 
 
 Sir John Hawles, Solicitor-General, commenting on Cornish's 
 Trial, in 11 How. St. Tr. 460 (about 1690) : "The reason that all mat- 
 ters of law are, or ought to be, transacted publicly is that any 
 person, unconcerned as well as concerned, may as amicus curice 
 inform the Court better, if he thinks they are in error, that justice may 
 
 8 — Compare the authorities cited in W., they cannot be indicted for perjury because 
 
 § 1828. the fact was committed in another coun- 
 
 9 — Willes, C. J., in Omichund v. Barker^ try. Those therefore who are plainly not 
 
 Willes 538, 553 (1744): "When the de- liable to be indicted tor perjury have of- 
 
 positions of witnesses are taken in another ten been, and for the sake of justice must 
 
 country, it frequently happens that they be, admitted as witnesses. And so there 
 
 never come over hither, or if [they do] is an end of this objection." 
 
362 PRECAUTIONARY RULES. No. 379. 
 
 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.""^" 
 
 Sir William Blackstone, Commentaries, III, 3^3 (1768) : "This 
 open examination of the witnesses, viva voce, in the presence of all 
 mankind, is much more conducive to the clearing up of truth 
 than the private and secret examination taken down before an 
 officer or his clerk, in the ecclesiastical courts and all others that have 
 borrowed their practice from the civil law; where a witness may fre- 
 quently depose that in private which he will be ashamed to testify in a 
 public and solemn tribunal." 
 
 SUB-TITLE IV. 
 
 SEPARATION OF WITNESSES. 
 
 The History of Susanna: "[Two elders coveted Susanna, a very 
 fair woman and pure, the wife of Joacim; they tempted her, but she 
 resisted; then they plotted, and charged her with adultery; and 
 "°^ she was brought before the assembly to be tried ;] and the elders 
 said: 'As we walked in the garden [of Joachim] alone, this woman 
 came in with two maids, and shut the garden doors, and sent the maids 
 away. Then a young man, who there was hid, came unto her, and lay 
 with her. Then we that stood in the corner of the garden, seeing this 
 wickedness, ran unto them. And when we saw them together, the 
 man we could not hold, for he was stronger than we and opened the door 
 and leaped out. But having taken this woman, we asked who the young 
 man was, but she would not tell us. These things do we testify.' Then 
 the assembly believed them, as those that were the elders and judges 
 of the people. . . . [But Daniel,] standing in the midst of them, said 
 . . . 'Are ye such fools, ye sons of Israel, that without examination or 
 knowledge of the truth ye have condemned a daughter of Israel.' . . . 
 
 10 — Lord Eldon, in Twiss' Life of Eldon, whom he tenderly loved and his children 
 
 1, 300 (1797): "I prosecuted a ship at whom he was extremely fond of, at the 
 
 Bristol to condemnation for having on end of a very long voyage in which he 
 
 tioard smuggled goods to a great amount. had been absent from them. This was 
 
 George Rous, who was a good-natured all coinage. But it was put a stop to by 
 
 friendly man, but violent in court, and par- a sailor in court starting up and exclaim- 
 
 ticularly as counsel for smugglers, raved ing, 'Well, that's a good on"! That's a 
 
 in this case and swore that I had con- good fetch! Why, my mistress and her 
 
 trived to have these goods put on board children were aboard ship with our cap* 
 
 in order to condemn the ship, whilst the tain during the whole of the voyage!' " 
 captain had gone ashore to see a wife' 
 
No. 382. IV. SEPARATION OF WITNESSES. 363 
 
 Then Daniel said unto them, 'Put these two aside, one far from another, 
 and I will examine them.' So when they were put asunder one from 
 another, he called one of them, and said unto him:^ 'Now then, if 
 thou hast seen her, tell me, under what tree sawest thou them com- 
 pauying together?' who answered, 'Under a mastick tree.' And Daniel 
 said, 'Very well; thou hast lied against thine own head.' ... So he put 
 him aside, and commanded to bring the other, and said unto him,^ . . . 
 'Now therefore tell me, under what tree didst thou take them company- 
 ing together?" who answered, 'Under an holm tree.' Then said Daniel 
 imto him, 'Well ; thou hast also lied against thine own head.' . . . With 
 that, all the assembly cried out with a loud voice, and praised God who 
 saveth them that trust in him. And they arose against the two elders, 
 for Daniel had convicted them of false witness, by their own mouth. 
 . . . From that day forth was Daniel had in great reputation in the sight 
 of the people."^^ 
 
 LAUGHLIN V. STATE (1849). 
 
 18 Oh. pp, 103. 
 
 The plaintiff in error was indicted for rape, and for an assault with 
 intent to commit a rape, and convicted and sentenced upon the latter 
 charge. . . . Before the examination of the witnesses had been 
 "^^ commenced, the counsel for the defendant requested that the wit- 
 nesses for the State should be examined out of the hearing of each 
 other; and that they should be ordered to withdraw from the court 
 
 II — McClellan, C. J., in Louisville & N. accompanied with notice that if they re- 
 S. Co. V. York, 128 Ala. 305, 30 So. 676 main they will not be examined." 
 (1902): "The purpose to be subserved in California: P. C. 1872, § 867, a corn- 
 putting witnesses under the rule is that mitting magistrate "may exclude all wit- 
 they may not be able to strengthen or nesses who have not been examined; he 
 color their own testimony, or to testify may also cause the witnesses to be kept 
 to greater advantage in line with their separate, and to be prevented from con- 
 bias, or to have their memories refreshed, versing with each other until they are all 
 sometimes unduly, by hearing the testimony examined"; ib. § 868: he "must also, upon 
 of other witnesses; and it is legitimate ar- the request of the defendant, exclude from 
 gument against the veracity or fairness of the examination every person except his 
 a witness to say that his testimony has clerk, the prosecutor and his counsel, the 
 l)een developed along the lines of his in- attorney-general, the district attorney of 
 clination in the case by the opportunities the county, the defendant and his counsel, 
 he has had, from hearing the other wit- and the officers having the defendant in 
 nesses, to refute them or to amplify his custody"; C. C. P. 1872, § 2043 : "If 
 own statements to meet the exigencies of either party requires it, the judge may 
 -the trial." exclude from the court-room any witness 
 
 Hanley, J., in Golden v. State, 19 Ark. of the adverse party"; amended by the' 
 
 590, 598 (1858): "The course in such case Commissioners in 1901, by adding: "but a 
 
 is either to require the names of the wit- party to the action or proceeding cannot 
 
 nesses to be stated by the counsel of the be so excluded, and if a corporation is a 
 
 respective parties by whom they were sum- party thereto, it is entitled to the pres- 
 
 moned, and to direct the sheriff to keep ence of one of its officers, to be designated 
 
 them in a separate room until they are by its attorney." 
 
 called for; or, more usually, to cause them Compare the authorities cited in W., §5 
 
 ■to withdraw by an order from the bench 1839, 1841. 
 
364 PRECAUTIONARY RULES. NO. 382. 
 
 room, and the order was made as requested. Notwithstanding this 
 order, Robert Johnson, the father of the girl, whose name was not on the 
 subpoena as a witness, but who was sworn with the other witnesses 
 before they retired, and who remained in court, seated by the counsel 
 for the State, and heard the testimony of his daughter and the other 
 witnesses who were examined, was offered as a witness on the part 
 of the State. The counsel for the defendant objected to his being ex- 
 amined, he having, contrary to the order of the court, remained within 
 the bar. When inquired of by the Court why he disobeyed the order 
 in remaining within the bar, he stated that he heard the order of the 
 Court, but did not understand the meaning of it. The Court overruled 
 the objection, and Johnson was examined as a witness. 
 
 Caldwell, J. : "The most important question arising in the case, 
 and the only one that the counsel for the accused have relied on in 
 argument, arises on the admission of Robert Johnson, the father of the 
 girl, as a witness. 
 
 "This is a question of no little delicacy. It relates exclusively to 
 the fairness of proceeding on the trial. Much may be said on both 
 sides of the case, and on part of the accused in this case, many con- 
 siderations meriting a careful examination have been presented. On 
 the one side, where the order of the Court has been made for the wit- 
 nesses to retire, and be examined out of the hearing of each other, if 
 a witness remains in violation of the order, it furnishes strong ground 
 of suspicion that the witness is not fairly disposed in the cause, and 
 that he wishes to avail himself of the testimony of the other witnesses, 
 in order to make his statements as potent as possible, by making them 
 correspond with theirs. Where, too, a party in interest in the cause, 
 after the order has been made, should procure his witnesses to be pres- 
 ent in violation of such order, it is equally suspicious that he intends 
 a similar degree of wrong and unfairness. On the other hand, 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 ; 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 consider- 
 ations which might be presented, render it difficult and we think impos- 
 sible 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. We do not find that any rule has been es- 
 tablished, in this country, that would justify this court, as a court of 
 errors, in deciding that it was error in an inferior court to admit a 
 witnesses who had violated the order, and heard the other witnesses tes- 
 tify."" 
 
 12 — Compare the authorities cited in W., S 1842. 
 
No. 384. V. DISCOVERY BEFORE TRIAL. 365 
 
 SUB-TITLE V. 
 
 DISCOVERY OR NOTICE OF EVIDENCE TO THE OPPO- 
 NENT BEFORE TRIAL. 
 
 Sir James Stephen, History of the Criminal Law, I, 225, 398 
 (1883) : "I do not think any part of the old procedure operated more 
 harshly upon prisoners than the summary and secret way in 
 "^" which justices of the peace, acting frequently the part of de- 
 tective officers, took their examinations and committed them for trial. 
 It was a constant and most natural and reasonable topic of complaint 
 by the prisoners who were tried for the Popish Plot that they had been 
 taken without warrant, kept close prisoners from the time of their 
 arrest, and kept in ignorance of the evidence against them till the 
 very moment ^yhen they were brought into Court to be tried. This is 
 set in a strong light by the provisions of [1709, St. 7 Anne, c. 21, § 14, 
 quoted infra, allowing a list of witnesses in treason]. . . . This was con- 
 sidered as an extraordinary effort of liberality. It proves, in fact, that 
 even at the beginning of the eighteenth century, and after the experi- 
 ence of the State trials held under the Stuarts, it did not occur to 
 the Legislature that, if a man is to be tried for his life, he ought to know 
 beforehand what the evidence against him is, and that it did appear 
 to them that to let him know even what were the names of the wit- 
 nesses was so great a favor that it ought to be reserved for people 
 accused of a crime for which legislators themselves or their friends 
 and connections were likely to be prosecuted. It was a matter of direct 
 I)ersonal interest to many members of Parliament that trials for political 
 offences should not be grossly unfair; but they were comparatively in- 
 different as to the fate of people accused of sheep-stealing or burglary 
 or murder. . . . [The prisoner] was not allowed as a matter of right, 
 but only as an occasional exceptional favor, ... to see his [own] wit- 
 nesses or put their evidence in order. When he came into Court, he 
 was set to fight for his life with absolutely no knowledge of the evi- 
 dence to be produced against him." 
 
 Statutes: Michigan, Comp. L. 1897, §11883: The foreman shall 
 return to court or deliver to the prosecuting attorney "a list of all the 
 witnesses sworn before the grand jury," when an indictment is 
 ^'* found. lb., § 1 1893 : The indictment, "with the names of the 
 complainant and all the witnesses indorsed on the back thereof," is 
 to be filed. lb., § 1 1934 : The prosecuting attorney, on filing an infor- 
 mation, shall "indorse thereon the names of all the witnesses known to 
 him at the time of filing the same, and at such time before the trial of 
 any case as the Court may by rule or otherwise prescribe, he shall also 
 
^66 PRECAUTIONARY RULES. No. 384. 
 
 endorse thereon the names of such other witnesses as shall then be 
 known to him." 
 
 United States, St. 1790, April 30, § 29, Rev. St. 1878, § 1033 : A list 
 "of the witnesses to be produced on the trial for proving the indictment, 
 stating the place of abode," is to be delivered "at least three entire days" 
 before trial, for treason, and "at least two entire days" before, for 
 other capital ofifenses.^^ 
 
 Sir James Wigram, V. C, Discovery, %l3i, 32, 148 (1836): 
 "Proposition I : It is the right, as a general rule, of a plaintiff in equity 
 to examine the defendant as to all matters of fact which, being 
 well pleaded in the bill, are material to the proof of the plaintiff's 
 case and which the defendant does not by his form of pleading admit. 
 Proposition II : Courts of equity, as a general rule, oblige a defendant 
 to pledge his oath to the truth of his defense. With this (if a) quali- 
 fication, the right of a plaintiff in equity to the benefit of the defend- 
 ant's oath is limited to a discovery of such material facts as relate to the 
 plaintiff's case, and does not extend to a discovery of the manner in 
 which or the evidence by means of which the defendant's case is to be 
 established, or to any discovery of the defendant's evidence. ... If it 
 were now for the first time to be determined whether in the investiga- 
 tion of disputed facts truth would be best elicited by allowing each of 
 the contending parties to know before the trial in what manner and 
 by what evidence his adversary proposed to establish his own case, 
 arguments of some weight might a priori be adduced in support of the 
 affirmative of this important question. Experience,- however, has showp 
 — or, at least. Courts of justice in this country act upon the principle 
 — that the possible mischiefs of surprise at a trial are more than counter- 
 balanced by the danger of perjury which must inevitably be incurred 
 when either party is permitted before a trial to know the precise evi- 
 dence against which he has to contend. And accordingly, by the settled 
 rules of Courts of justice in this country (approved as well as ac- 
 knowledged) each party in a cause has thrown upon him the onus of 
 supporting his own case and meeting that of his adversary without 
 
 13 — Douglass, J., in Gardner v. People, attorney, but by a defect in the law itself, 
 4 III. 83, 89 (1841): "The list of wit- or a narrow and illiberal construction of 
 nesses which is required to be furnished to it not sanctioned by reason or justice. We 
 the prisoner prior to the arraignment is to think, therefore, that the prosecution is 
 be composed of the witness endorsed on not confined to the list of witnesses en- 
 the indictment by the foreman of the grand dorsed on the indictment and furnished 
 jury. . . . The question is now presented previous to arraignment; but that the C'ir- 
 whether the prosecuting attorney is to be cuit Court, in the exercise of a sound dis- 
 confined to the list of witnesses endorsed cretion, and having a strict and impartial 
 on the back of the indictment. ... If regard to the rights of the community and ' 
 such a construction were placed upon this the prisoner, may permit such other wit- 
 statute as would exclude all witnesses nesses to be examined as the justice of the 
 whose names were not endorsed on the in- case may seem to require." 
 dictment, many offenders would go unpun- Compare the authorities cited in W., §9 
 ished, not on account of their own inno- 1850-1855. 
 cence, nor of the negligence of the State's 
 
No. 387. V. DISCOVERY BEFORE TRIAL. 367 
 
 knowing beforehand by what evidence the case of his adversary is to 
 be supported or his own opposed." 
 
 COMBE V. LONDON (1840). 
 
 4Y.6-C. 139, 155. 
 
 Abinger, L. C. B.: "A party has a right to file a bill of discovery 
 for the purpose of obtaining such facts as may tend to prove his case; 
 and if those facts are either in possession of the other party, or, 
 if they consist of documents in possession of the other party, 
 in which he either has an interest, or which tend to prove his case, and 
 have no relation to the case of the other party, he has a right to have 
 them produced, and he may file a bill of discovery, in order to aid him 
 in law or in equity, to exhibit those documents in evidence, or compel 
 a statement of those facts. But does it not rest there? Has he a right, 
 as against the defendant, to discover the defendant's case? Does any 
 case go the length of that? Sometimes the cases trench very much on 
 those limits? but if you take the question as a matter of principle, nas 
 a man a right, or is it consistent with common justice that he should 
 file a bill to discover the defendant's case? The ground on which he 
 files his bill, is to make the defendant discover what is material to his 
 (the plaintiff's) case; but he has no right to say to the defendant, 'Tell 
 me what your title is — tell me what your case it — tell me how you mean 
 to prove it — ^tell me the evidence you have to support it — disclose the 
 documents you mean to make use of in support of it — tell me all these 
 things, that I may find a flaw in your title.' Surely that is not the 
 principle of a bill of discovery. And if you look at the cases, you 
 will find, however they may occasionally trench on the line of distinc- 
 tion — you will find that is the great line of distinction." 
 
 Common Law Practice Commissioners, Second Report, 55 ( 1853) : 
 "As to facts within the knowledge of an adverse party, the Courts of 
 law possess no power of compelling discovery ; except, indeed, that 
 ' by the recent change [of 1851] in the law each party may be called 
 as a witness [on the trial] by his opponent; but it is obvious that this 
 course will only be resorted to in the most desperate emergency. It can- 
 not reasonably be expected that a party ignorant of what his adversary 
 may be prepared to swear, shall put so adverse and interested a witness 
 into the box, without having had any opportunity of previous interroga- 
 tion. For the purpose of discovery, previous to the trial, whether of 
 facts or of documents, the party desiring is has now no alternative but 
 to resort to a court of equity. We have no hesitation in saying that this 
 is altogether wrong. We assert as an indisputable proposition, that 
 every Court ought to possess within itself the means of administering 
 complete justice within the scope of its jurisdiction. . . . This oppor- 
 tunity for examination prior to the trial will be useful, not only for the 
 purpose of discovering facts exclusively in the knowledge of the oppo- 
 
368 PRECAUTIONARY RULES. No. 387. 
 
 site party, but as the means of sparing the trouble and expense of pro- 
 ducing evidence of facts which he may be prepared to admit; while, 
 on the other hand, it will tend to make more clearly manifest the mat- 
 ters which are alone in contest between the parties. In some cases, such 
 a preliminary discovery may even altogether obviate the necessity of any 
 trial, by compelling the one party or the other to admit facts decisive of 
 the case upon the merits, so as to show that proceeding to trial would 
 be a mere abuse of the forms of justice. A power of preliminary dis- 
 covery would likewise tend to expose the motives of groundless actions 
 brought for vexation, and of unfounded defences set up and persisted 
 in for delay. It would, moreover, have a most wholesome effect in pre- 
 venting false pleas from being put on the record; for as soon as the 
 examination of the party had made manifest the falsehood of the plea, 
 a judge might be applied to to disallow the pleading at the expense of 
 the party pleading it. If the very existence of such a power had not 
 the effect of preventing the necessity of its exercise, it would at least 
 aid the Court in extirpating frivolous and improper litigation. We pro- 
 pose that either party in a cause shall be at liberty to deliver to the 
 opposite party, provided such party would be liable to be called as a wit- 
 ness, or his attorney, written questions on the subjects on which dis- 
 covery is sought; and to require such party, within a time to be fixed, 
 to answer the questions in writing upon oath, sworn and filed in the 
 same manner and under the same sanction, in case of falsehood, as an 
 affidavit; and that the party omitting to answer within the prescribed 
 time shall be subject to the consequences of a contempt of the court. 
 But we by no means propose to confine the power of interrogating such 
 adverse party to the written questions above referred to. We think that 
 in many cases an opportunity should be afforded for oral examination. 
 At the same time, care must be taken that the power of personal exam- 
 ination be not abused by being made a means of vexation and oppres- 
 sion, when used against weak or timid persons. We propose, therefore, 
 not to leave it at the option of a party to demand an oral examination, 
 but to give the court, or a judge, discretion, on the application of either 
 party, in case of an insufficient answer to the written questions before 
 referred to, or in any other case in which it may be made to appear 
 essential to justice, to direct an oral examination of the other party 
 before either a judge or a master of the court."^ 
 
 Statutes: Illinois, Rev. St. 1874, c. 51, §6: "Any party to any 
 civil action, suit or proceeding, may compel any adverse party or per- 
 son for whose benefit such action, suit, or proceeding is brought, 
 instituted, prosecuted, or defended, to testify as a witness at the 
 trial, or by deposition, taken as other depositions are by law required, 
 
 I — Pound, C, in Ulrick v. McConatighey, he won whose advocate was the gamest 
 
 63 Nebr. lo, 88 N. W. 150 (1901): "The bird with the longest spurs. But we have 
 
 common law originally was very strict in come to take a more liberal view, and 
 
 confining each party to his own means of have done away with most of those fea- 
 
 proof, and, as it has been expressed, re- tures which gave rise to that reproach." 
 garded a trial as a cock fight, wherein 
 
No. 389. V. DISCOVERY BEFORE TRIAU 369 
 
 in the same manner, and subject to the same rules, as other witnesses." 
 Massachusetts, Rev. L. 1902, c. 173, §§ 35, 57-63 (quoted post. No. 
 396). 
 
 New York, C. C. P. 1877, § 870 : "The deposition of a party to an 
 action pending in a court of record, or of a person who expects to be 
 a party . . . may be taken at his own instance or at the instance of an 
 adverse party or of a co-plaintiff or co-defendant at any time before 
 the trial." 
 
 Mr. Justice Daly. "Preparation for Trial," The Brief, II, 299 
 ( 1900) : "In preparing for the trial of your action, it may be neces- 
 sary to take the deposition of the adverse party with the expecta- 
 *'*'" tion of having to use it as evidence. The Code contemplates the 
 use of the deposition upon the trial, and the examination is not allowed 
 for the mere purpose of enabling the applicant to prepare for trial. The 
 examination is in every case of very great benefit to the party applying 
 for it, and for that reason is almost invariably resisted with vigor, the 
 conflict giving rise to a vast amount of litigation, producing decisions 
 not always easy to reconcile and not always adhered to. In my experi- 
 ence no remedy has been more warmly contested, and it is hardly pos- 
 sible to-day to make an application for it without a fatiguing study of a 
 vast number of cases. The reason for this is due to the resistance 
 naturally to be expected to an assumed inquisitorial investigation, which 
 may disclose the case of an adversary and discover its weakness, and 
 to the disposition of the Courts to limit the privilege of examination 
 for fear of abuse. The remedy first made its appearance in our practice 
 with the Code of Procedure in the middle of the century now drawing 
 to a close. The language of the old Code 'No action to obtain discovery 
 under oath in aid of the prosecution or defense of another action shall 
 be allowed; nor shall any examination of a party be had on behalf of 
 the adverse party, except in the manner prescribed by this chapter,' 
 led the Courts at first toi consider the examination as a mere substitute 
 for the former bill of discovery and thus, logically, in administering 
 the remedy, to hold that parties availing themselves of it were bound to 
 conform as near as might be to the rules and practice governing bills 
 of discovery. Under the present Code, in which the examination of a 
 party before trial, at the instance of his adversary, the examination 
 of a witness de bene esse and the taking of depositions for the perpetua- 
 tion of testimony in anticipated litigations are all grouped in one article, 
 it is held that the proceeding is purely statutory, to be governed by the 
 provisions of the Code, and not to be controlled by the former practice. 
 This clearing away of former restrictions did not, however, tend to 
 diminish. litigation upon the subject, and there is yet much to perplex 
 the practitioner in the very fine distinctions which have been favored by 
 the courts. The tendency of the courts is not yet toward liberality, in 
 permitting examinations of parties at the instance of their adversaries, 
 and a very wide discretion is exercised in determining whether the facts 
 
370 PRECAUTIONARY RULES. No. 389. 
 
 set forth in the appellant's affidavit show that the testimony is material 
 and necessary. A perusal of the statute might reasonably lead to the 
 conclusion that the Legislature intended to afford a very broad and 
 general remedy; but a review of the great array of decisions upon the 
 article would lead to the conviction that the Courts, in'the conscientious 
 discharge of duty, have made a deal of work and trouble for them- 
 selves which might have been avoided, without special injury, by a less 
 conservative construction, by permitting the examination except where 
 it is obviously intended to annoy and harass and by confining the exam- 
 ination strictly to the issues, or limiting it to particular matters as the 
 statute expressly permits. ... It is interesting to note that the Court 
 of last resort in this State has expressed its fear of latitude leading to 
 abuse with respect to one branch of the subject only, namely, that 
 which relates to the examinations before action brought of a person 
 . who is expected to be made a party to it. . . . If the examination is 
 allowed by the Court it need not be limited to the affirmative cause of 
 action or defense of the party desiring the examination, but may be a 
 general examination, the same as if it were had at the trial. . . . [The 
 examination has been refused] where there is no proof that the facts 
 are not as well known to the party seeking the examination as to the 
 adversary whom he wishes to examine; where it is not shown that an 
 examination of the adversary could not be had at the trial and it does 
 not appear that an examination before trial is necessary or important; 
 where it is made to appear that the examination is sought merely for 
 the purpose of annoyance or delay; where the information sought can 
 be obtained from records or documents; where it cannot be ascertained 
 on what issue the party desires the examination or where a defendant 
 sought to examine a plaintiff before service of a complaint in order to 
 frame an answer; where it is not alleged that the facts exist which are 
 sought to be proved by the examination; and, generally, where the 
 Court is not satisfied that the examination of the adversary is either 
 material or necessary. The instances under this head are too numerous 
 to cite; and it may be suggested that each case will be judged upon its 
 own facts and that the practitioner, in groping his way through the 
 maze of adjudications on this division of the subject, will find common 
 sense a not untrustworthy guide."'^ 
 
 RE STRACHAN. 
 
 L. R. [i8p5-\ I Ch. 439, 445. 
 
 In the month of April, 1894, a petition for an inquiry as to the sanity 
 of Horace Ward Strachan, an alleged lunatic, was presented by his 
 brother James Arthur Strachan. Affidavits were filed in support 
 **"" of the petition, and an order for an inquiry was made; but on 
 the 13th of June, 1894, before the inquisition was concluded, the alleged 
 lunatic died, and thereupon the proceedings in Lunacy came to an end. 
 
 I — Compare the authorities cited in W., § 1856. 
 
No. 390. V. DISCOVERY BEFORE TRIAL. 371 
 
 In February and March, 1894, the alleged lunatic had made two wills 
 in favour of Mrs. Elizabeth Sanford, neither of which contained any 
 appointment of executors. After his death, the validity of these wills 
 was disputed by his brother J. A. Strachan on the ground of insanity, 
 undue influence, and defective execution; and, in July, 1894, J. A. 
 Strachan brought an action in the Probate Division for the adminis- 
 tration of his deceased brother's estate, upon the footing that he had 
 died intestate. In this action, to which Mrs. Sanford was made De- 
 fendant, he sought to have it declared that these two wills had been 
 made by his brother when insane, and were induced by her undue influ- 
 ence acting upon his brother in his then condition. Mrs. Sanford coun- 
 ter-claimed to have it declared that the two wills were valid, and that 
 probate thereof might be granted. Notice of trial was given on the 
 27th of October, and on the 17th of November the Plaintiff (J. A. 
 Strachan) made an affidavit of documents, in which he claimed privilege 
 for certain documents in his possession, including drafts or copies of 
 his petition in Lunacy, and of the affidavits filed by him in the lunacy 
 in support of the petition. An application by Mrs. Sanford in' the Pro- 
 bate action for the production of these documents by the Plaintiff was 
 refused by Sir Francis Jeune on the 19th of November, 1894. . . . The 
 4th paragraph of the petition was as follows : "Your petitioner is desir- 
 ous of inspecting and taking copies of and extracts from the petition 
 affidavits and other proceedings in the matter of the supposed lunatic 
 in order that she may ascertain what allegations of mental incapacity 
 are intended to be made at the trial of the said Probate action, and that 
 she may have an opportunity of rebutting them." 
 
 LiNDLEY, L. J. : "In the present case, if inspection is allowed, Mrs. 
 Sanford will see her adversary's hand, which she cannot do without the 
 assistance of the Court; whilst, if inspection is refused, the Court will 
 not confer on her opponent any advantage, which he has not already 
 got. Mrs. Sanford has no right to this advantage, and I see no reason 
 why she should have it. Her own petition shews that she does not want 
 to see the documents in order to support her own case. She wants to 
 see how her opponent hopes to prove his case, and what she wants to 
 see is the evidence he has procured to prove the insanity which he alleges 
 and she disputes. In England it is considered contrary to the interests 
 of justice to compel a litigant to disclose to his opponent before the 
 trial the evidence to be adduced against him. It is considered that so 
 to do would give undue advantages for cross-examination and lead to 
 endless side-issues, and would enable witnesses to be tampered with and 
 give unfair advantage to the unscrupulous. It is very true that an 
 honest and fair-dealing litigant, on seeing how strong a case his oppo- 
 nent had, might at once withdraw from further litigation. But our rules 
 of evidence and of discovery are not based upon the theory that it is 
 advantageous to let each side know what the other can prove, but rather 
 the reverse."^ 
 
 2 — 1887, Past V. R Co., 144 Mass. 341, do not compel discovery from persons who 
 348, II N. E. 540: "It is clear that Courts sustain no other relation to the contem- 
 
372 PRECAUTIONARY RULES. No. 391. 
 
 Henry Brougham, Speech on the Courts of Common Law (Feb. 7, 
 1828; Hans. Pari. Deb., 2d ser., §Vin, 188): "Whatever brings the 
 parties to their senses as soon as possible, especially by giving 
 ^"•'- each- a clear view of his chance of success or failure, and, above 
 all things, making him well acquainted with his adversary's case at 
 the earliest possible moment, will always be for the interests of justice, 
 of the parties themselves, and indeed, of all but the practitioners. It 
 is the practitioners generally, that determine how the matter shall pro- 
 ceed, and it may be imagined that their own interests are not the 
 last attended to. The seeming interest of two parties disposed to be 
 litigious, in many cases appears to be different from the interests of 
 justice, although their real interest, if strictly examined, will not unfre- 
 quently be found to be the same. Now, justice is embarrassed by the 
 disingenuousness of conflicting parties; justice wants the cases of both 
 to be fully and early stated; but both parties take care to inform each 
 other as little as possible, and as late as possible, of their respective 
 merits. One tells as much of his case as he thinks good for the fur- 
 therance of his claim, and the frustration of the enemy's — so does the 
 other, only as much of his answer as may help him, without aiding his 
 adversary; and the judge is oftentimes left to guess at the truth in the 
 trick and conflict of the two. The interest of the Court of Justice being 
 to make both parties come out with the whole of their case as early as 
 possible, the law should never lend itself to their concealments. This 
 remark extends to the proof as well as the statement of the case; an 
 intimation of what the evidence is may often stop a cause at once. In 
 Scotland, the law in this respect is better than ours, for no man can 
 produce a written instrument on trial without having previously shown 
 it to his adversary. For want of this salutary rule I have often seen 
 the most useless litigation protracted for the sole benefit of practitioners. 
 I was myself lately engaged in a cause, the circumstances of which will 
 give the Hotise an idea of the mischief. I was instructed not to show 
 a certain receipt to the opposite party, as my client, the defendant, meant 
 to nonsuit his adversary in great style, as he would call it. Well, the 
 plaintiff, (an executor), stated his case, and called his witnesses to prove 
 the debt. I did not take the trouble to cross-examine, which would 
 have been quite unnecessary. Equally so was it to address the jury. I 
 acknowledged the truth of all that had been sworn on the other side, 
 but added that it was all useless, as I happened to have a receipt for the 
 mofey, which had been paid to the testator. This, of course, put an end 
 to the case. The sum sought to be recovered did not exceed twenty 
 pounds, and the expenses could not have been less than a hundred." 
 
 plated litigation, or to the subject of the formation of any causes of action he may 
 suit, than that of witness; and it is also have against other persons than the de- 
 clear that a bill for discovery cannot be fendants." 
 used to enable a plaintiff to fish for in- 
 
No. 392, V. DISCOVERY BEFORE TRIAL. 373 
 
 BOLTON V. LIVERPOOL (1833). 
 I Myl. &■ K. 88, pi. 
 
 The plaintiffs, who were merchants and copartners in Liverpool, were 
 defendants in an action, brought by the corporation, for the recovery 
 of certain dues levied by the corporation upon the traders of that 
 *"^ town. The bill was filed for the purpose of obtaining a discovery 
 from the corporation in aid of the plaintiff's defence to the action at 
 law. The bill among other things charged that divers cases had been 
 lately submitted to counsel, for their opinion, touching the right of the 
 corporation to receive the tolls and duties, and from which, if pro- 
 duced, it would appear that the corporation had no such right, and that 
 all such cases were then in the possession or power of the defendants; 
 and it further charged that the defendants had in their possession or 
 power divers charters, grants, deeds, books, accounts, letters, copies 
 of and extracts from letters, cases, written statements, tables or lists 
 of town dues, tolls or duties, bills, informations, pleas, answers, memo- 
 randums, papers, and writings, relating to the matters contained in the 
 bill; and by which, if produced, the truth of those matters would ap- 
 pear. 
 
 The defendants admitted that they had then, in their possession, cer- 
 tain grants, deeds, documents, and papers, relating to the matters afore- 
 said, and that they had in the third schedule to their said answer, and 
 which they prayed might be taken as part thereof, set forth a list of 
 such grants, deeds, documents and papers. But the defendants said 
 that many of such grants, deeds, and documents were the title deeds and 
 documents evidencing and showing the title of the corporation to the town 
 and lordship of Liverpool, and to the town dues and customs aforesaid ; 
 and that many of such documents and papers were copies of accounts 
 from public offices, and that they had in the said schedule particularized 
 and distinguished which of the said grants, deeds, and documents were 
 the title deeds and documents evidencing the title of the corporation to 
 the town and lordship of Liverpool, and town dues and customs afore- 
 said, and which of the said documents and papers were copies of ac- 
 counts from public offices; and the defendants submitted that they 
 ought not to be compelled to produce such grants, deeds, documents, and 
 papers. 
 
 Brougham, L. C. : "I take the principle to be this: A party has a 
 right to the production of deeds sustaining his own title affirmatively, 
 but not of those which are not immediately connected with the sup- 
 port of his own title and which form part of his adversary's. He 
 cannot call for those which, instead of supporting his title, defeat it by 
 entitling his adversary. Those under which both claim he may have, 
 or those under which he alone claims. . . . The plaintiff here does not 
 claim anything positively or affirmatively under the documents in ques- 
 tion ; he only defends himself against the claims of the corporation, and 
 suggests that the docuni,ents evidencing their title may aid his defence. 
 
374 PRECAUTIONARY RULES. No. 392. 
 
 How? By proving his title, he says. But how can those documents 
 prove his title? Only by disclosing some defect in that of the corpora- 
 tion. . . . He rests on the right which he has in common with all man- 
 kind to be exempt from dues and customs; and he says, 'Prove me 
 liable if you can'. The corporation have certain documents which they 
 say prove this liability. He cannot call for these documents merely 
 because they may upon inspection be found not to prove his liability, 
 and so help him and hurt his adversary whose title they are." 
 
 Wm. Tidd, Practice, pth ed., I, 586, (1828) : "Oyer of deeds, etc., is 
 demandable by the defendant or by the plaintiff. If the plaintiff in his 
 declaration neccessarily make a profert in curia of any deed, writ- 
 ing, letters of administration, or the like, the defendant may pray 
 oyer of the deed, etc., and must have a copy delivered to him, if de- 
 manded, paying for the same at the rate of fourpence per sheet. And a 
 defendant who prays oyer of a deed is entitled to a copy of the attesta- 
 tion and names of the witnesses, as well as of every other part of the 
 deed. So likewise, if the defendant in his plea makes a necessary pro- 
 fert in curia' of any deed, etc., the plaintiff may pray oyer, and shall 
 have a copy at the like rate. And the party of whom oyer is demanded 
 is bound to carry the deed to the adverse party. . . . Formerly all de- 
 mands of oyer were made in court, where the deed is by intendment of 
 law when it is pleaded with a profert in curia; and therefore, when 
 oyer is craved, it is supposed to be of the Court, and not of the party; 
 and the words ei legitur in hcec verba, etc., are the act of the Court. 
 In practice, however, oyer is now usually demanded and granted by 
 the attorneys." 
 
 GROENVELT v. BURRELL (1698). 
 I Ld. Raym. 2^2. 
 The plaintiff was refused an inspection and copy of the records of 
 the college of physicians, in an action against one of them for false 
 394 imprisonment. Per Curiam: "This record may be pleaded with- 
 out a profert in curia, and therefore no oyer can be prayed for it, and 
 therefore the defendants shall not be bound to give a copy, for it would 
 be in effect to discover their evidence. And the plaintiff has no right 
 in this record, therefore this case differs from the case of the public 
 books of a corporation, for there the party has an interest. In the 
 same manner, where there is a dispute between a lord and a copyholder, 
 the copyholder shall see the rolls, because he has an interest in them." 
 
 Common Law Practice Commissioners, Third Report, 45 (1831): 
 
 "By law, no profert is required to be made and consequently no oyer 
 
 can be demanded of any instrument, except private deeds, letters- 
 
 **"" testamentary, and letters of administration. If there are other 
 
 cases, they are unfrequent and obscure. The following are consequently 
 
No. 396. V. DISCOVERY BEFORE TRIAL. 375 
 
 excluded: records and public writings of whatever description, private 
 •writings under seal but not falling within the legal definition of deeds 
 (for example, a sealed will or a sealed award), and private writings 
 not under seal of whatever description; and even of private deeds a 
 numerous class is excepted, viz., such as take effect either by livery of 
 seisin or by operation of the statute of uses. . . . The whole of this 
 practice appears to be too strict, too intricate, too prolix, and in some 
 parts of it obscure and unsettled. It is strongly calculated to give rise 
 to technical difiSculty and formal objection, and tends in some other 
 respects also to produce unnecessary delay and expense. The truth is 
 that the law of profert and oyer was originally devised in reference to 
 a state of things that no longer exists ; beipg altogether founded on 
 that method, now for so many ages obsolete, of oral pleading between 
 litigants actually confronting each other in open court. . . . The present 
 practice of profert and oyer, though in its present form chargeable with 
 many defects, is in its principle of the highest importance. It is mani- 
 festly essential to the interests of justice that a party against whom 
 his own written instrument or the instrument of another person is 
 pleaded should have the means of inspection, and, if necessary, of pro- 
 curing a copy before he is called upon to answer. He may wish to 
 ascertain its genuineness, and, if genuine, whether it has sustained any 
 material alteration since it was executed. He may wish to know the 
 names of the subscribing witnesses and to ascertain from them what 
 testimony they are prepared to give as to the circumstances under 
 which it was executed. He may propose to found his defence upon 
 some parts of the instrument which his adversary has not chosen to 
 set forth and which may either show its invalidity in point of law or 
 provide him with an answer in point of fact. . . . We can see no good 
 reason why, in every case in which profert would be required of a 
 bond or other deed, it should not also be made of any other instrument 
 of whatever description, which is either alleged to be or which may be 
 presumed to be in writing. Such an alteration of the law would pre- 
 vent the delay, expense, and uncertainty which attends an application 
 to the Court or a judge, and place the whole practice on this subject 
 on a more simple and uniform as well as a more equitable footing." 
 
 Statutes. England, 1851, St. 14 & 15 Vict. c. 99, §6: Upon action 
 pending, any judge may on application by either party "compel the op- 
 posing party to allow the party making the application to inspect 
 all documents in the custody or under the control of such oppo- 
 site party relating to such action or other legal proceeding, and, if 
 necessary, to take examined copies of the same or procure the same 
 to be duly stamped, in all cases in which previous to the passing of this 
 act a discovery might have been obtained by filing a bill or by any 
 other proceeding in a court of equity". 1854, St. 17 & 18 Vict. c. 125, 
 
376 PRECAUTIONARY RULES. No. 396. 
 
 § 50 : "Upon the application of either party to any cause or other civil 
 proceeding in any of the superior courts upon an affidavit by such 
 party of his belief that any document to the production of which he is 
 entitled for the purpose of discovery or otherwise is in the possession 
 or power of the opposite party, it shall be lawful for the court or judge 
 to order" that the opponent answer as to such- custody and as to the 
 objection if any to production; and then "the Court or judge may 
 make such further order thereon as shall be just." 
 
 Illinois, Rev. St. 1874, c. 51, §9: Courts are empowered "in any 
 action pending before them, upon motion, and good and sufficient cause 
 shown, and reasonable notice thereof given, to require the parties or 
 either of them to produce books or writings in their possession or 
 power which contain evidence pertinent to the issue". lb. c. no, §20: 
 "It shall not be necessary in any pleading to make profert of the instru- 
 ment alleged; but in any action or defence upon an instrument in 
 writing, whether under seal or not, if the same is not lost or destroyed, 
 the opposite party may have oyer thereof and proceed thereon in the 
 same manner as if profert had been properly made according to the 
 common law." 
 
 Kansas, Gen. St. 1897, c. 95, § 380 : Either party may demand of the 
 opponent "an inspection and copy, or permission to take a copy, of a 
 book or paper or document in his possession or under his control con- 
 taining evidence relating to the merits of the action or defense therein" ; 
 the demand to be written and to specify particulars; on refusal within 
 four days, the Court may on motion and notice order such inspection 
 or copy, and on failure to comply with the order, may exclude the docu- 
 ment or direct it to be presumed to be as alleged". lb. § 381 : Either 
 party, if required, shall deliver to the other "a copy of any deed instru- 
 ment or other writing whereon his action or defense is founded or 
 which he intends to offer in evidence at the trial; on refusal, the party's 
 original shall be excluded at the trial." 
 
 Massachusetts, Rev. L. 1902, c. 173, § 6 : "Written instruments" shall 
 be declared on, except insurance policies, by setting out a copy or the 
 part relied on, or the legal effect; "if the whole contract is not set out, 
 a copy of the original, as the Court may require, shall be filed upon 
 motion of the defendant," and the copy may be made a part of the 
 record as if oyer had been granted ; "no profert or excuse therefor need 
 be inserted in a declaration". lb. § 35 : "No party shall b'e required 
 [in his pleading] to state evidence, or to disclose the means by which 
 he intends to prove his cause". lb. §§ 57-63 : Interrogatories may be 
 filed, after entry of action or answer, and before a trial on the merits, 
 "for the discovery of facts and documents material to the support or 
 defence of the action," to be answered on oath by the adverse party; 
 documents containing "matters not pertinent to the subject of the ac- 
 tion" may be protected from inspection ; no party shall be obliged "to 
 disclose his title to any property the title whereof is not material to the 
 trial of the action in the course of which he is interrogated, or to dis- 
 
No. 397. V. DISCOVERY BEFORE TRIAL. 377 
 
 close the names of the witnesses by whom or the manner in which he 
 proposes to prove his own case." 
 
 New York, C. C. P. 1877, § 803 : "A court of record, other than a 
 justice's court in a city, has power to compel a party to an action 
 pending therein to produce and discover, or to give to the other party 
 an inspection and copy or permission to take a copy of a book document 
 or other paper in his possession or under his control relating to the 
 merits of the action or of the defence therein.'' lb. §§ 804-809, 1914: 
 Proceedings regfulated; "the general rules of practice must prescribe 
 the cases in which a discovery or inspection may be so compelled," 
 where not otherwise prescribed in this act; upon refusal to comply, 
 a Court may dismiss a complaint or strike out an answer, etc., or bar a 
 particular claim or defence, or, for refusal to allow inspection and 
 copy, exclude the document or punish for contempt or both. 1895, 
 Supreme Court Rules, Nos. 14-17: Applications for production under 
 C. C. P. § 804, supra, may be made as follows : i, by the plaintiff, for 
 documents "which may be necessary to enable the plaintiff to frame his 
 complaint or to answer any pleading of the defendant"; 2, by the de- 
 fendant, for documents "which may be necessary to enable the defend- 
 ant to answer any pleading of the plaintiff"; 3, by either party, on a 
 showing that the document "is material to the decision of the action or 
 special proceeding or some motion or application therein, or is com- 
 petent evidence in the case or an inspection thereof is necessary to 
 enable the party to prepare for trial." 
 
 United States, St. 1789, c. 20, §15, Rev. St. 1878, c. 12, §724: In 
 trials at law, the U. S. courts may on motion require the parties "to 
 produce books or writings in their possession or power, which contain 
 evidence pertinent to the issue, in cases and under circumstances where 
 they might be compelled to produce the same by the ordinary rules of 
 proceeding in chancery"; on failure to produce, judgment of nonsuit 
 or default may be given.^ 
 
 REYNOLDS v. BURGESS SULPHITE FIBRE CO. (1902). 
 
 77 N. H. 332, 51 Atl. 1075. 
 
 Action by Elizabeth Reynolds, administratrix, against the Burgess 
 Sulphite Fibre Company. . . . Bill in equity. The bill alleges that the 
 plaintiff has commenced an action at law against the defendants 
 *"' to recover damages for negligently causing the death of the 
 plaintiff's intestate by furnishing him for use in his employment im- 
 proper, unsuitable, and dangerous machinery; that on April 9, 1899, 
 while the intestate was in the employ of the defendants, he was killed 
 by falling against the governor of an engine; that the engine gave 
 indications, by an unusual noise, that it was in a defective condition, 
 
 1 — Compare the authorities cited in W., %i J858, 1859. 
 
378 PRECAUTIONARY RULES. No. 397. 
 
 and, shortly afterward the strap on its connecting rod broke, and caused 
 the connecting rod to break through the outer casing with a loud crash, 
 and thereby caused the intestate's fatal fall ; that the broken pieces of the 
 strap are in the defendants' possession; that, to properly prepare the 
 plaintiff's action at law for trial, it is necessary that these pieces should 
 be examined by the plaintiff's attorneys, and also by competent persons, 
 with a view of testifying; and that the defendants, though requested, 
 have refused to permit such examination. The prayer is for a discovery 
 of the pieces of the broken strap, and for an inspection of the same, by 
 the plaintiff's attorneys and such other persons as she may desire. The 
 defendants filed a demurrer, which was sustained pro forma, subject to 
 the plaintiff's exception. 
 
 Chase, J. : "Unless the equitable remedy of discovery has been super- 
 seded by the provision of some plain, adequate, and complete remedy at 
 law, or is not applicable to a case of tort like that alleged in the plain- 
 tiff's action at law, — points that are hereinafter considered,— #t is certain 
 that the defendants, through their officers and agents, might be com- 
 pelled in a suit like the present one to discover the form in which the 
 strap was constructed, the character of the workmanship by which and 
 the materials from which it was made; in short, all the facts within 
 their knowledge, information, or belief tending to show that it was 
 defective. If they had in their possession a plan of the strap or of the 
 broken pieces, they might be compelled to produce it for examination 
 by the plaintiff. Why, then, may they not be compelled to produce the 
 broken pieces themselves? (i) Two reasons are suggested: One — pos- 
 itive, and, if well founded, substantial — ^that the defendants' right to 
 possess and control the property, growing out of their ownership of it, 
 cannot be infringed in this way; and the other — negative, and not ap- 
 plying to the merits of the question — that there is no precedent for a 
 discovery and inspection of such property. It must be admitted that 
 the defendants' right of property in the broken strap will be interfered 
 with to some extent if they are required to produce it, and allow the 
 plaintiff and others to examine it. But such interference will not differ 
 in kind or degree from that which occurs when a party is required to 
 produce his letters, deeds, plans, other documents, or books for inspec- 
 tion. The rights of the defendants arising from the ownership of the 
 strap are no more sacred than would be their rights arising from the 
 ownership of a plan of the strap, if they had one. The infringement 
 of property rights in such cases is justified upon the ground that it is 
 necessary to the administration of justice. Such necessity is alleged 
 by the plaintiff and admitted by the defendants. It is apparent that an 
 examination of the strap will afford a better means of ascertaining the 
 truth in respect to its suitableness or unsuitableness for the office it was 
 to perform than any possible description or plan of it could afford, 
 and the necessity for an inspection of it is correspondingly greater than 
 the necessity for an oral description or a plan. . . . (2) The defendants' 
 second objection is because the discovery and inspection are sought for 
 
No. 397. V. DISCOVERY BEFORE TRIAL. 379 
 
 the purpose of having the broken strap examined by persons with a 
 view of enabling them to testify as experts in the action at law. This 
 objection must also be overruled. It is evident that expert testimony 
 may be competent upon the issue to be tried, whether it relate to the 
 form of the strap, the manner of its construction, or the character of 
 the materials from which it was made. The defendants have ample 
 opportunity to procure such testimony. Justice requires that the plain- 
 tiff shall also have an opportunity to have the strap examined by per- 
 sons in whose skill and scientific knowledge she has confidence. There 
 cannot be a fair trial of the case unless such opportunity is given to the 
 plaintiff. Indeed, it may be that she cannot establish her right — if she 
 have one — ^without having the opportunity. . . . (3) The defendants 
 place much reliance upon their third point, viz., that the equitable rem- 
 edy for discovery cannot be invoked in aid of an action at law for a 
 personal tort. They do not question, and, in view of the authorities, 
 cannot question, the proposition that discovery may be had in aid of 
 actions of tort relating to property, such as trover, detinue, trespass, 
 waste, etc. But they say that a defendant cannot be called upon to 
 implicate himself directly or indirectly in a personal tort, because it 
 would tend to show moral turpitude, and so is inconsistent with prin- 
 ciples of natural justice. ... If the absence of authorities is entitled 
 to any weight, it is, under the circumstances, very slight. Cases for 
 personal torts arising from the actiorv of the defendant, — wilful torts, 
 so to speak, — in which the defendant could make discovery without 
 incriminating himself, must, from the nature of the case, be very rare. 
 It is possible that there have been none excepting Macaulay v. Shack- 
 ell, and cases of like nature that have been decided in accordance there- 
 with without again raising the question. Cases for negligence were not 
 common prior to the middle of the last century. The use of steam and 
 electricity, and the commercial activity consequent thereon, have im- 
 mensely multiplied cases of this kind. Lord Campbell's act for giving 
 compensation to the families of persons killed by the negligence of 
 others was enacted in 1846. Eight years later a procedure bill was 
 passed, largely through the agency of Lord Campbell (17 & 18 Vict. 
 c. 125), by which, among other things, it was provided that either party 
 to a civil action in the superior courts 'shall be at liberty to apply to 
 the court or judge for a rule or order for the inspection by the jury, 
 or by himself, or by his witnesses of any real or personal property, the 
 inspection of which may be material to the proper determination of the 
 question in dispute.' ... In passing, it may be remarked that if the 
 act and the reason of its enactment do not show that its author under- 
 stood that courts of equity had jurisdiction to order an inspection of 
 real or personal property when such inspection was material to the 
 proper determination of an issue, it certainly shows that he felt there 
 was a necessity for such inspection in the administration of justice. 
 The act relieved parties from the necessity of resorting to equity for 
 discovery, and reasonably accounts for the absence, in England, of 
 
380 DISCOVERY BEFORE TRIAL. N 0. 397. 
 
 bill of discovery in aid of actions at law for negligence since that time. 
 ... If Macaulay v. Shackell and Wilmot v. Maccabe are not author- 
 ities in favor of the maintenance of the plaintiff's bill, the general prin- 
 ciples governing the remedy of discovery certainly justify its mainte- 
 nance. The case may be a new case in specie, so far as discovery is 
 concerned, but it belongs to a class to which the remedy of discovery 
 is applicable."^ 
 
 I — Compare the authorities cited in W.t ! 1862; and No, 461, past, 
 
No. 398. BOOK I, PART 11. 381 
 
 TITLE V. 
 
 SIMPLIFICATIVE RULES. 
 
 General Nature of these Rules; Undue Confusion of Issues, 
 AND Unfair Prejudice, as Grounds for Exclusion.^ "The peculiar 
 mark of the ensuing group of rules is that in their operation they 
 set aside or exclude, either conditionally or absolutely, certain 
 kinds of evidence (otherwise admissible so far as Relevancy is con- 
 cerned) which are found to have an improper effect by obstructing 
 or confusing rather than aiding or facilitating the process of ascertain- 
 ing the truth. They may be termed Simplificative rules, with reference 
 to their mode of operation, in contrast to the other rules of Auxiliary 
 Probative Policy. These Simplificative rules treat the danger or in- 
 convenience of the evidence as ineradicable by such methods as those 
 of the foregoing rules, and therefore resort to the extreme measure of 
 eliminating entirely the evidence supposed to be tainted with the ob- 
 jectionable disadvantage. 
 
 "As to the qualities or elements that constitute the objectionable 
 features and furnish the grounds for exclusion, they lie in some indirect 
 and disadvantageous probative effects found in experience to be pro- 
 duced by the -use of certain kinds of evidence. These disadvantageous 
 efifects may be broadly summarized under two heads, namely, Undue 
 Confusion and Unfair Prejudice, (a) If the use of certain evidential 
 material tends to produce undue confusion in the minds of the tribunal 
 — i. e. the jurors — , by diverting their attention from the real issue and 
 fixing it upon a trivial or minor matter, or by making the controversy 
 so intricate that the disentanglement of it becomes difficult, the evidence 
 tends to the suppression of the truth and not to its discovery; and there 
 is good ground for excluding such evidence, unless it is so intimately 
 connected with the main issue that its consideration is inevitable, (b) 
 So also, if certain evidential material, having a legitimate probative 
 value, tends nevertheless to produce also, over and above its legitimate 
 effect, an unfair prejudice to the opponent or by virtue of the per- 
 sonality of the witness tends to receive an excessive weight in the 
 minds of the tribunal, there is good ground for excluding such evi- 
 dence, unless it is indispensable for its legitimate purpose. 
 
 "The foregoing motives, as might be expected, do not always operate 
 distinctly and precisely in the shape of rules deduced directly and solely 
 from one or the other motive. These broad considerations of policy 
 may be plainly enough seen in the utterances of the judges, and an 
 appreciation of them is indispensable to an understanding of the rules. 
 
382 SIMPLIFICATIVE RULES. No. 398. 
 
 Yet the resultant concrete rules may be due in part to the one and in 
 part to the other motive, or one of these motives may, though domi- 
 nant, be attended by subordinate motives of some other kind."^ 
 
 SUB-TITLE I. 
 
 ORDER OF INTRODUCING EVIDENCE. 
 
 RUCKER V. EDDINGS (1841). 
 
 J Mo. 115, 118. 
 
 ScoTT^ J. : "The law has entrusted Courts with a discretion in al- 
 lowing the parties to a cause to obviate the effects of inadvertence by the 
 introduction of testimony out of its order. This discretion is to be 
 exercised in furtherance of justice, and in a manner so as not 
 to encourage the tampering with witnesses to induce them to prop up 
 a cause whose weakness has been exposed. Where mere formal proof 
 has been omitted. Courts have allowed witnesses to be called or docu- 
 ments to be produced at any time before the jury retire, in order 
 to supply lit. So, material testimony ought not to be rejected because 
 offered after the evidence is closed on both sides, unless it has been 
 kept back by trick and the opposite party would be deceived or injuri- 
 ously affected by it. So, after a witness has been examined and cross- 
 examined, the Court may at its discretion permit either party to exam- 
 ine him again, even as to new matter, at any time during the trial. So, 
 where by an accidental omission plaintiff's attorney does not call and 
 examine a witness who was present in Court, and a non-suit is moved 
 for after he has rested his case, the Court will permit the witness to 
 be examined in furtherance of justice. This Court is sensible of the 
 disadvantages under which it labors in revising the discretion of the 
 circuit Courts in matters of this kind, and a strong case must be pre- 
 sented for its interference before it can be induced to disturb the judg- 
 ment of inferior Courts by revising the exercise of the discretion with 
 which they are entrusted in regard to the relaxation of the rules of 
 evidence. It must be manifest to any one conversant with the trial of 
 causes that the Court before which a trial is had, from having an op- 
 portunity of seeing the conduct of parties, of witnessing the difference 
 in the experience of the opposite counsel, and many incidents which 
 cannot be set out in a bill of exceptions and which influence the exer- 
 cise of its discretion (and properly too), has superior means for a wise 
 and judicious exercise of this power than is possessed by this Court, 
 which is confined entirely to the facts spread upon the record."" 
 
 J — Quoted from W., § 1863. proof of any matter in issue is thrown 
 
 2 — Waite, J., in Hathaway v. Iteming- upon the plaintiff, he must in the first 
 
 way, 20 Conn. 191, 195 (1850); "The instance introduce all the evidence upon 
 
 rule upon this subject is a familiar one. which he relies to establish his case. He 
 
 When, by the pleadings, the burden of cannot, as said by Lord Ellenborough, go 
 
No. 400. -ORDER OF INTRODUCING EVIDENCE. 383 
 
 ROGERS V. BRENT (1849). 
 10 III. 573, 587. 
 
 Caton, J.: "This was an action of ejectment, and upon the trial in 
 the circuit court the plaintiff below introduced a patent from the United 
 States, for the premises in question, to Jesse Bowman as assignee 
 *''" of Samuel M. Bowman, dated on the first of May, 1843, which 
 was followed by a deed from Jesse Bowman to Brent, dated December 
 1st, 1846. The plaintiff then proved the possession of the defendant, 
 and closed his case. 
 
 "The defendant then offered to prove by the register's certificate, 
 that the land in controversy was entered at the land office by Samuel 
 M. Bowman on the 19th of May, 1840, and that he assigned his certifi- 
 cate of purchase to Jesse Bowman on the 5th of April, 1843. He also 
 offered the record of a judgment in the Lee circuit court, against Sam- 
 uel M. Bowman, which was entered on the 12th day of September, 
 1842, upon which an execution was issued on the 28th of the same 
 month, by virtue of which the sheriff levied on the premises in question, 
 and advertised and sold them according to law to Southwick, who ob- 
 tained a sheriff's deed on the 17th of December, 1844. As each por- 
 tion of this evidence was offered it was objected to, and ruled out by 
 the court, and an exception taken. A verdict and judgment were en- 
 tered for the plaintiff. . . . 
 
 "Having shown in what way it was competent for Rogers to prove 
 that he did not, in the language of the issue, 'unlawfully withhold the 
 possession,' it only remains to be seen whether the evidence which he 
 offered, and which was excluded by the Court, tended to prove such a 
 case. . . . The question is, not whether it was sufficient of itself to 
 make out the defence, but would it aid to make out the case? Would 
 it tend to prove the defence? Most cases have to be proved by a suc- 
 cession of distinct facts, neither of which standing alone would amount 
 to anything, while all taken together form a connected chain and estab- 
 lish the issue; and from necessity a party must be allowed to present 
 his case in such detached parts as the nature of his evidence requires. 
 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 
 
 into half his case and reserve the remain- faither testimony which may properly be 
 
 <ier. The same rule applies to the de- considered testimony in chief, . . . But 
 
 fence. After the plaintiff has closed his this rule is not in all cases an inflexible 
 
 testimony, the defendant must then bring one. There is and of necessity must be 
 
 forward all the evidence upon which he a discretionary power, vested in the Court 
 
 relies to met the claim on the part of the before which a trial is had, to relax the 
 
 -plaintiff. He cannot introduce a part and operation of the rule, when great injus- 
 
 Teserve the residue for some future occa- tice will be done by a strict adherence to 
 
 sion. After he has rested, neither party it." 
 
 ■can as a matter of right introduce any' Compare the authorities cited in W., 5 
 
 1867. 
 
384 SIMPLIFICATIVE RULES. No. 400. 
 
 and offer to prove at the same time all the other necessary facts to 
 make out the case. Such a practice would embarrass the administration 
 of justice and prove detrimental to the rights of parties. It may be 
 that Rogers was bound to connect himself with Southwick's title before 
 he could insist that the patent was void because obtained in fraud of 
 such title; but he must first prove such title to exist before he could 
 connect himself with it; and this he was not allowed to do. If he was 
 bound to connect himself with Bowman's creditors, to avail himself of 
 the fraud practiced upon them, he must first show that there were such 
 creditors; and the judgment which proved this was ruled out by the 
 Court. It is the right of the party, when he offers evidence in its 
 proper order which proves or tends to prove any necessary fact in the 
 case, to have it go to the jury; for the reasonable presumption is that 
 it will be followed by such other proof as is necessary for its proper 
 connection, and if it is not, it then becomes irrelevant, and as such, 
 if desired, may be withdrawn from the jury. If there is anything to 
 induce the suspicion that the time of the Court is being trifled with, it 
 may be proper to call upon counsel to state the connection which they 
 expect to give the proposed evidence ; but this should ordinarily be 
 avoided, as it is often embarrassing for counsel to anticipate their case 
 in the presence of the opposite party. It may sometimes happen that 
 evidence is offered so out of its proper place as to authorize the Court 
 to exclude it for want of a proper foundation; as, in this case, had the 
 sheriflf's deed been offered without the previous proceedings, it might 
 have been properly excluded till the proper foundation for it was shown. 
 No such objection, however, existed in this case. The party commenced 
 at the foundation of his case, and offered to establish the first necessary 
 fact; and, when that was ruled out, he still persisted in offering to 
 prove subsequent parts of his case dependent upon those previously 
 offered and rejected, till his repeated offers had almost the appearance 
 of wrestling with the opinion of the Court. He proceeded as far as 
 duty or propriety required."' 
 
 3 — Christiancy, J., in Campau v. Dewey, may in any manner be rendered material, 
 9 Mich. 381, 422 (1861): "On the direct because the party proposing it has not 
 examination, it is true, if the relevancy volunteered to precede it with a statement 
 of a proposed inquiry does not appear, the of its precise object and of the other facts 
 Court have a right to call on the counsel in connection with which it is to be ren- 
 te state the object of the proposed testi- dered material. The Court may doubtless, 
 mony and the manner in which it is to in its discretion, when a question is asked 
 be made relevant; and the Court may in on cross-examination which he thinks can- 
 the exercise of its discretion requires a par- not be rendered pertinent, require an in- 
 ticular statement of the substance of the timation of its object, and reject the evi- 
 evidence in connection with which the pro- dence if not given. But this is a discre- 
 posed inquiry is to be rendered pertinent, tion which should be very sparingly exer- 
 and, if refused, may reject the evidence. cised, and nothing further than a bare in- 
 . . . But on a ' cross-examination the rule' ■ timation should generally be required; for, 
 as to relevancy is not so strict; and it in many cases, to state the precise object 
 would be a very unsafe rule which should of a cross-examination would be to defeat 
 allow the Court to reject evidence, which it" 
 
No. 403. ORDER OF INTRODUCING EVIDENCE. 385 
 
 PARNELL COMMIS.SION'S PROCEEDINGS (1888). 
 
 33d day. Times' Rep. pt. 9, p. 104. 
 
 The Irish Land League and its leaders being charged with com- 
 plicity in crime, the doings and admissions of various known criminals 
 were offered, with the purpose of connecting with them the 
 ^"^ League leaders; Sir Richard Webster, Attorney- General, having 
 asked a witness what one Carey said about Egan, one of the leaders, Sir 
 Charles Russell objected; Sir R. Webster: "I think, if your lordships 
 trust me for a moment, you will see that it is in the ititerests of justice 
 that this man should make his statement. I will undertake to connect 
 it with Egan" ; Sir C. Russell : "I do not think that is a reason'' ; Presi- 
 dent Hannen : "Well, if the Attorney- General does not fulfil his pledge, 
 I shall strike out what is said" ; Sir C. Russell : "We have had so many 
 of these pledges which have been broken"; Sir R. Webster: "I beg your 
 pardon; no pledges that I have given have been broken"; Sir C. Russell: 
 "Well, left unfulfilled"; Sir R. Webster: "Or left unfulfilled"; Presi- 
 dent Hannen: "Counsel can only say what they anticipate will be the 
 case; if this is not made evidence, I will strike it out."* 
 
 LORD LOVAT'S TRIAL (1746). 
 
 18 How. St. Tr. 658. 
 
 Hardwicke, L. C. : "My lords, the rule for the examination of wit- 
 nesses in this Court, in either House of Parliament, and everywhere 
 else, is that ... all questions that are asked, whether touching 
 *"" the matter of fact to be tried or the credibility of the witness, are 
 to be asked at the proper time. The party who produces a witness 
 has a right to go through the examination first, and then the other side 
 cross-examines him; and after that is over, the judge asks him such 
 questions as he thinks proper; unless, as I said before, there be any 
 objections to the questions, or any doubtful matter arises that wants 
 immediately to be cleared up. The same method is to be observed here; 
 and the reason of it, my lords, is that unless your lordships observe this 
 method, you will be in perpetual confusion." 
 
 MOODY v. ROWELL (1835). 
 
 17 Pick. 490, 499. 
 
 Assumpsit on a promissory note for the sum of $2,750, dated No- 
 vember I, 1828, payable to John Blaisdell, junior, since deceased, or 
 his order, in five years, with interest, and purporting to be signed 
 *"** by the defendant and indorsed by the payee. The defence rested 
 on the ground, that the signatures of the defendant and of the payee 
 
 4 — Compare the authorities cited in W., § 1871. 
 
386 SIMPLIFICATIVE RULES. No. 403. 
 
 were forged. Henry H. Brown, who was called as a witness for the 
 defendant, was examined as to the handwriting of the payee. On his 
 cross-examination, the plaintiff examined him as to the handwriting of 
 the defendant. The judge did not permit the plaintiff to cross-examine 
 the witness as to the defendant's signature, he not having been ques- 
 tioned on that subject by the defendant. . . . 
 
 Shaw, C. J.: "Where a witness is called to a particular fact, he 
 is a witness to all purposes, and may be fully cross-examined to the 
 whole case. ... It is most desirable that rules of general practice, 
 of so much importance and of such frequent recurrence, should be as 
 few, simple, and practical as possible, and that distinctions should not 
 be multiplied without good cause. It would be often difficult, in a long 
 and complicated examination, to decide whether a question applies 
 wholly to new matter or to matter already examined to in chief."^ 
 
 PHILADELPHIA & TRENTON R. CO. v. STIMPSON (1840). 
 
 14 Pet. 448, 461. 
 
 At the April session of the Circuit Court, James Stimpson , insti- 
 tuted an action against the plaintiffs in error, for the recovery of dam- 
 ages, for the violation of a patent granted to him by the United 
 *^* States, on the 26th day of September, 1835, for "a new and 
 useful improvement in the mode of turning short curves on railroads." 
 The case was tried on the i6th day of February, 1839; and a verdict 
 was rendered for the. plaintiff, for the sum of four thousand two hun- 
 dred and fifty dollars. On the trial of the cause, the defendants tendered 
 a bill of exceptions to the decision of the Court, on their admitting 
 the patent to the plaintiff in evidence; and to other rulings of the 
 Court in the course of the trial. . . . The third exception was to the re- 
 fusal of the Court to allow the defendants to introduce proof of the con- 
 versations between the patentee and the counsel of the Baltimore and 
 Ohio Railroad Company, while an arrangement of a suit against the 
 Company was made, as to the character and effects of the arrange- 
 ments. . . . 
 
 5 — Campbell, J., in Chandler v. Allison, signedly stopping short of it. Any ques- 
 10 Mich. 477 (1862) ; *'The only object of tion which fills up his omissions, whether 
 this process [of cross-examination] is to designed or accidental, is legitimate and 
 elicit the whole truth concerning transac- proper on cross-examination. ... A party 
 tions which may be supposed to have been cannot glean out certain parts, which alone 
 only partially explained, and where the would make out a false account, and save 
 whole truth would represent them in a his own witness from the sifting process by 
 different light. Whenever an entire trans- which only those omissions can be detect- 
 action is in issue, evidence which conceals ed. There could be no such thing as cross- 
 a part of it is defective, and does not examination if such a course were allowed, 
 comply with the primary obligation of the . . . No one can be compelled to make his 
 oath, which is designed to elicit the whole adversary's witness his own to explain or 
 truth. If the witness were (as he always fill up a transaction he has partially ex- 
 may be) requested to state what he knows plained already." 
 about it, he would not do his duty by de- 
 
No. 404. ORDER OF INTRODUCING EVIDENCE. 387 
 
 Story, J.: "The next exception is to the refusal of the Court to 
 allow certain questions to be put by the defendants to John H. B. La- 
 trobe, a witness introduced by the defendants to maintain the issue on 
 their part. Latrobe, on his examination, stated, 'I know Mr. Stimp- 
 son by sight and character. He granted to the Baltimore and Ohio 
 Railroad Company the privilege of using the curved ways on their 
 railroad, and all the lateral roads connected therewith. I fix the date 
 of the contract in the early part of October, 1834, because I have then 
 a receipt of Mr. Stimpson's counsel, for two thousand five hundred dol- 
 lars. Mr. Stimpson laid his claim against the Baltimore Company 
 for an infringement of his patent, in 1832. It was referred to me by 
 the Company, and I advised them.' The counsel for the defendants 
 then offered to prove by the same witness, the declarations of the plain- 
 tiff and his agent, to the witness, that the settlement made with the 
 Baltimore and Ohio Railroad Company with the plaintiff, was not an 
 admission by the said company of the plaintiff's right in the alleged 
 invention, but a mere compromise of a pending suit, disconnected with 
 a grant, in writing, made by the plaintiff to the said company. . . . 
 
 "Now, (as has been already intimated,) it is incumbent upon those 
 who insist upon the right to put particular questions to a witness, to 
 establish that right beyond any reasonable doubt, for the very purpose 
 stated by them; and they are not afterwards at liberty to desert that 
 purpose, and to show the pertinency or relevancy of the evidence for any 
 other purpose, not then suggested to the Court. It was not pretended at 
 the argument, that the evidence so offered was good evidence in chief, 
 in behalf of the defendants upon the issue in the cause. It was res 
 inter alios acta, and had no tendency to disprove the defendant's title 
 to the invention, or to support any title set up by the defendants; for 
 no privity was shown between the defendants and the Baltimore Com- 
 pany. As evidence in chief, therefore, it was irrelevant and inadmis- 
 sible. . . . 
 
 "But it is now said that the evidence was in fact offered for the 
 purpose of rebutting or explaining certain statements made by one Ross 
 Winans, a witness called by the defendants, in his answers upon his 
 cross-examination by the plaintiff's counsel. Now this purpose is not 
 necessarily, or even naturally, suggested by the purpose avowed in the 
 record. Upon his cross-examination Winans stated: 'I understood 
 there were arrangements made with the Baltimore Company. I heard 
 the company paid five thousand dollars.' Now, certainly these statements, 
 if objected to by the defendants, would have been inadmissible on two 
 distinct grounds, i. First, as mere hearsay; 2. And, secondly . . . upon 
 the broader principle (now well established, although sometimes lost 
 sight of in our loose practice at trials) that a party has no right to 
 cross-examine any witness except as to facts and circumstances con- 
 nected with the matters stated in his direct examination. If he wishes 
 to examine him as to other matters, he must do so by making the 
 witness his own, and calling him as such in the subsequent progress 
 
388 SIMPLIFICATIVE RULES. No. 404. 
 
 of the cause.' The question then is presented, whether a party 
 can, by his own omission to take an objection to the admission of 
 improper evidence brought out on a cross-examination, found a right 
 to introduce testimony in chief to rebut it or explain it.' If upon 
 the cross-examination, Winans' answer had been such as was unfavour- 
 able to the plaintiff, upon the collateral matters thus asked, which were 
 not founded in the issue, he would have been bound by it, and not 
 permitted to introduce evidence to contradict it. There is great diffi- 
 culty in saying that the defendants ought to be in a more favoured 
 predicament, and to acquire rights founded upon the like evidence to 
 ■which they did not choose to make any objection, although otherwise 
 it could not have been in the cause. But waiving this consideration, the 
 grounds on which we think the refusal of the Court was right, are: 
 first, that it was not distinctly propounded to the Court, that the evi- 
 dence was offered to rebut or explain Winans' testimony;^ and, sec- 
 ondly, that in the form in which it was put, it proposed to separate the 
 written contract of compromise from the conversations and negotia- 
 tions which led to it, and to introduce the latter without the former, 
 although it might turn out that the written paper might most materially 
 affect or control the presumptions deducible from those conversations, 
 and negotiations."* 
 
 NEW YORK IRON MINE v. NEGAUNEE BANK (1878). 
 
 39 Mich. 644, 659. 
 
 CooLEY, J. : "The plaintiff in error is sued as a maker of three prom- 
 issory notes and endorser of a fourth, all of which are copied in the 
 margin.^" By reference to these notes it will be seen that the name 
 *''* of plaintiff in error is subscribed or endorsed by W. L. Wetmore, 
 and the contest has been made over his authority to make use of 
 the name of plaintiff in error as he has done. The New York Mine 
 is a corporation, having its place of operations at Ishpeming in this 
 State. It was organized some fourteen years ago, with Samuel J. 
 Tilden and William L. Wetmore as corporators. Mr. Tilden has had 
 the principal interest from the first, and has always acted as president 
 and treasurer, keeping his office in New York city. Mr. Wetmore 
 
 6 — Walker, C. J., ia Stafford v. Fargo, other side, and the party against whom 
 
 35 111. 481, 486 (1864) : "[The opponent] the witness was first called would obtain 
 
 has only the right to cross-examine upon the advantage of getting evidence under 
 
 the facts to which he [the witness] testi- the latitude allowed in cross-examination." 
 
 ■fied in chief. If he can give evidence bene- Compare Nos. 403 and 405. 
 
 ficial to the other party, he should call him 7 — On this point, compare the authori- 
 
 at the proper time and make him his own ties cited in W., § 15. 
 
 witness and examine him in chief, thereby .8 — On this point, compare No. 13, ante, 
 
 giving the other party the benefit of a 9 — On this point, compare Nos. 553, ff., 
 
 cross-examination on such evidence in post. 
 
 chief. Otherwise the party calling the 10 — These notes were signed or en- 
 witness would be deprived of a cross-ex- dorsed "New York Iron Mine, by W. L. 
 amination as to evidence called out by the Wetmore." 
 
No. 405. ORDER OF INTRODUCING EVIDENCE. 389 
 
 has always until this controversy arose acted as general agent with 
 his office at Ishpeming. The board of direction has been made up of 
 these gentlemen with some nominal holders of stock in New York 
 city as associates. . . . The firm of Wetmore & Bro. named in the three 
 notes purporting to be made by the New York Mine, was composed 
 of William L. and F. P. Wetmore, and there was evidence that the 
 New York Mine had had business transactions with that firm to the 
 amount in all of $125,000. ... It was not claimed on the trial that 
 there had ever been any corporate action expressly empowering Wet- 
 more as general agent to make promissory notes, nor did it appear that 
 he had ever executed any in its name except a few. ... It was not 
 disputed by the defense that the corporation as such had power to 
 make the notes in suit. The question was whether it had in any man- 
 ner delegated that power to V/etmore. . . . 
 
 "Some of the proceedings on the trial require attention, and es- 
 pecially the rule of cross-examination laid down by the circuit judge 
 when Wetmore was on the stand as a witness for the plaintiff. Wet- 
 more was manifestly a willing witness, and made such showing as was 
 in his power in support of the authority which as general agent he 
 had assumed to exercise. But although he was the first witness called, 
 and the case involved nothing but paper made or indorsed by himself, 
 he was not asked respecting his signatures, and the notes were not 
 ofiFered in evidence while he was upon the stand. The reason for this 
 was apparent as soon as the cross-examination commenced, for when 
 the witness was asked any questions concerning the notes, the purpose 
 of which was to show that he had signed or indorsed them without 
 authority and in fraud of defendant, and that he had admitted that 
 such was the fact, objection was at once interposed on behalf of the 
 plaintiff, and the circuit judge, remarking that the witness had given 
 no testimony in reference to the notes, nor had any testimony been 
 introduced by any other party in reference to them, nor had the notes 
 been put in evidence, sustained the objection. 
 
 "The question of the proper range of cross-examination has been 
 discussed in this State until it would seem that further discussion 
 must be entirely needless. . . . [After quoting Mr. J. Campbell's words 
 as set forth ante, No. 403, note i], one might suppose, after reading 
 this language, that it was written in anticipation of the proceedings in 
 this very case. . . . Here the matter in issue was confined to the single 
 point of Wetmore's authority to make and endorse the paper sued 
 upon. . . . The questions on behalf of the plaintiff had been care- 
 fully restricted to that part of the facts which it was supposed 
 would tend in its favor and in respect to which a cross-ex- 
 amination could not be damaging, and were intended, instead of elicit- 
 ing the whole truth, to conceal whatever would favor the defense. The 
 witness, instead of being required, according to the obligation of his 
 oath, to tell the whole truth, had been carefully limited to something 
 less than the whole; and when questions were asked calculated to sup- 
 
390 SUNDRY AUXILIARY RULES. No. 405. 
 
 ply his omissions, they were ruled out because they did not relate to 
 the precise circumstances which the plaintiff had thought it for his 
 interest to call out. It would be difficult to present a more striking 
 illustration of the error in the rule in People v. Horton^^ than is 
 afforded by this case. For here was the principal actor in the transac- 
 tion under investigation brought forward as a witness to support his 
 own acts, but carefully examined in such a manner as to avoid having 
 him utter a single word regarding the main fact — though it was pecu- 
 liarly within his own knowledge — , and even his handwriting was left 
 to be proved by another. In that manner he was made to conceal not 
 merely a part of the transaction but a principal part, and made to tell, 
 not the whole truth according to the obligation of his oath, but a small 
 fraction only, — a fraction, too, that was important only as it bore upon 
 the main fact which was so carefully kept out of sight while this wit- 
 ness was giving his evidence. It is true, the defense was at liberty 
 to call the witness subsequently; but this is no answer; the defense was 
 not compellable to give credit to the plaintiff's witness as its own 
 for the purposes of ari explanation of facts constituting the plaintiff's 
 case and a part of which the plaintiff had put before the jury when 
 examining him. One of the mischiefs of the rule in People v. Horton 
 was that it encouraged a practice not favorable to justice, whereby a 
 party was compelled to make an unfriendly witness his own, after the 
 party calling him had managed to present a one-sided and essentially 
 false account of the facts, by artfully aiding the witness to give such 
 glimpses of the truth only as would favor his own side of the issue. 
 What has been said on this point has in substance been said many times 
 before. The necessity of repeating it is a singular illustration of the 
 difficulty with which a mischievous but plausible precedent is sometimes 
 got rid of."" 
 
 SUB-TITLE II. 
 
 SUNDRY RULES TO AVOID CONFUSION OF ISSUES, 
 UNDUE WEIGHT, ETC." 
 
 FRASER V. JENNISON (1879). 
 42 Mich. 2o6, 224, s N. W. 882. 
 
 CooLEY, J. : "This case involves the validity of the will of the late 
 
 Alexander D. Fraser, of Detroit, one of the oldest and best known 
 
 members of the Michigan bar. The will bears date May 17, 1877. 
 
 *"'' ... By their pleading the contestants set up the follow defenses : 
 
 first, they deny the due execution of the supposed will ; second, they 
 
 II — 4 Mich. 67, 82; following the rule 13 — For other rules tinder this principle 
 
 in Phila. & T. R. Co, v. Stimpson. see ante, Nos. 21-27, 33-36, si-S4' 
 
 12 — Compare the authorities cited in W., 
 § 1S90. 
 
No. 407. CUMULATIVE WITNESSES; JUDGE; JUROR. 391 
 
 aver that at the time of the supposed execution the decedent was of 
 unsound mind, and incapable of making a valid will; third, they allege 
 that the will was the result of insane delusions in the decedent. . . . 
 Dr. Henry Hurd was called, who testified that he . . . was familiar 
 with mental diseases, their causes and symptoms. . . . Four other wit- 
 nesses were called who, as medical experts, testified to the same effect 
 with Dr. Hurd. This made five in all. A sixth was called, but the 
 Court declined to hear more. . . . 
 
 "The Court was quite justified in declining to permit Dr. Johnson 
 to be called as an expert by the contestants after five other experts had 
 been called and examined on their behalf. If testamentary cases 
 are ever to be brought to a conclusion, there must be some limit to 
 the reception of expert evidence; and that which was fixed in this case 
 was quite liberal enough. To obtain such evidence is expensive, since 
 desirable witnesses are not to be found in every community; but an 
 army may be had if the Court will consent to their examination; and 
 if legal controversies are to be determined by the preponderance of 
 voices, wealth in all litigation in which expert evidence is important 
 may prevail almost of course. But one familiar with such litigation 
 cannot but know that, for the purposes of justice, the examination of 
 two conscientious and intelligent experts on a side is better than to 
 call more; and certainly, when five on each side have been examined, 
 the limit of reasonable liberality has in most cases been reached. The 
 jury cannot be aided by going farther. Little discrepancies that must 
 be found in the testimony, of those even who in the main agree, begin 
 to attract attention and occupy the mind, until at last jurors, with 
 their minds on unimportant variances, come to think that expert evi- 
 dence, from its very uncertainty, is worthless. This is not a desirable 
 state of things; and it can only be avoided by confining the use of ex- 
 pert evidence within reasonable bounds."^ 
 
 MAITLAND v. ZANGA (1896). 
 
 14 Wash. 92, 44 Pac. iij. 
 
 Dunbar, J.: "This is an action for damages, founded on an agree- 
 ment to convey land ; at least we construe the contract to be an agreement 
 to convey. The contract was executed on August 5, 1858. On No- 
 vember 26, 1889, — something more than four years after the execu- 
 tion of the contract — the respondent, by warranty deed, conveyed said 
 lands to one Roswell Skeel, a third party and bona fide purchaser, 
 which deed was duly recorded. The answer alleges affirmatively that 
 the contract was a gift to take effect at respondent's death, alleges 
 fraudulent representations, ignorance of defendant, etc. . . . During the 
 progress of the trial the presiding judge, at the request of the respond- 
 ent, and over the objections of the appellant, took the witness stand, 
 
 I I — Compare the authorities cited in W., § 1908. 
 
392 SUNDRY AUXILIARY RULES. No. 407. 
 
 and testified concerning testimony offered by the appellant in some 
 prior case involving the matter in dispute. This is assigned by the ap- 
 pellant as error, and, while the authorities are somewhat conflicting 
 on this proposition, we think the weight of authority and the better 
 reasoning are opposed to the admission of such testimony. Respondent 
 contends that because it is a well established rule that jurors may 
 testify in a case, there is no reason why the judge should not be 
 allowed to do so. But it seems to us that there are many reasons why 
 the judge should not be allowed to testify that would not weigh in 
 the case of a juror. If the defendant is entitled to the testimony of 
 the' judge, the plaintifif is equally entitled to his testimony, and it might 
 eventuate, if this practice were to be tolerated, that the judge, upon 
 a motion for nonsuit, would be compelled to pass upon the weight of 
 his own testimony; and, considering the inclination of the human mind 
 to attach more importance to his own statements than to those of others, 
 it is easy to see that the rights of the litigants might be prejudiced in 
 such a case. Again, while upon the witness stand he would have a 
 right to all the protection that any other witness has under the law. 
 He could refuse to answer questions which, in his judgment, might 
 tend to criminate him. He might decline to answer questions the ad- 
 missibility of which it would be necessary for the court to determine, 
 and which would bring him as a witness in conflict with himself as 
 a court. Again, it would to a certain extent lead to the embarassment 
 of the jury, who are subordinate ofiicers of the court, and under its 
 directions, to have to weigh the testimony of the judge in the same 
 scales with the testimony of other witnesses in the case whose testi- 
 mony was opposed to that of the judge. And in many ways it seems 
 to us that this practice would lead to embarrassment, and would have a 
 tendency to lower the standard of courts, and bring them into con- 
 tempt. There is no necessity for this practice, for, under the liberal 
 provisions of our laws, if a party desires to avail himself of the testi- 
 mony of the judge, another judge may be called in to preside at the 
 trial of the cause."^ 
 
 HOWSER V. COMMONWEALTH (1865). 
 51 Pa. 332, 337. 
 
 Woodward, C. J. : "Polly Paul, an elderly maiden lady, who was 
 reputed to possess money, and Cassy Munday, a young girl who lived 
 with her, were both cruelly murdered on the evening of the 7th 
 ■*"' June, 1865, in Summerhill township, Cambria county. The 
 plaintiffs in error were defendants below in an indictment which 
 charged only the murder of Miss Paul, and after a full and careful 
 trial were both convicted of murder in the first degree. . . . 
 
 "The first and ninth errors complain of the admission of John Buck 
 and George W. Kerby, two of the jurors in the box, as witnesses on 
 
 2 — Compare the authorities cited in W., § 1909, and No. 369, ante. 
 
No. 409. JUDGE ; juror ; counsel. 393 
 
 the part of the Commonwealth. In respect to the first of these wit- 
 nesses, it might be sufficient to say that the objection was not made 
 until after he was sworn as a witness, when it was too late to object 
 to his competency, and in respect of both it might be said that they 
 were called to incidental and comparatively immaterial points, that did 
 not touch the corpus delicti. But, waiving these answers, let it be 
 distinctly said that jurors are not incompetent witnesses in either crim- 
 inal or civil issues. They have no interest that disqualifies, and there 
 is no rule of public policy that excludes them. . . . The learned coun- 
 sel argue that the practice violates the constitutional rights of the 
 accused, who are entitled to a speedy and public trial by an impartial 
 jury, and to be confronted with the witnesses. Our law takes the ut- 
 most care to secure to the accused, in capital cases, an impartial jury 
 — it almost allows prisoners to select their own triers. They may exam- 
 ine jurors as to their knowledge of circumstances, their expressions, 
 opinions or prejudices, and challenge as many as they can show cause 
 for, and may challenge twenty without showing cause, and then if any 
 juror happens to have knowledge of any pertinent fact, he is bound to 
 disclose it in time for the accused to cross-examine him, and to explain 
 or contradict his testimony. If this be not a fulfilling of the constitu- 
 tional injunction in behalf of impartial juries, it would be difficult to 
 invent a plan that would fulfil it and at the same time be consistent 
 with the demands of public justice. But counsel imagine that the con- 
 stitutional right to confront witnesses would be abridged in the instances 
 of witnesses taken from the jury-box, because their truth and veracity 
 could not be attacked without damage to the attacking party. As to 
 material witnesses, those, we mean, upon whose testimony the event 
 is essentially dependent, we think they ought not to be admitted into 
 the jury-box, and we believe the general practice is to exclude them 
 where the fact is discovered in time; but we do not think the con- 
 stitutional provision alluded to, nor any rule of law, is violated by the 
 examination of a juror as a witness. The a priori presumption is that 
 he is a man of truth and veracity or he would not have been sum- 
 moned as a juror; and confronting witnesses does not mean impeach- 
 ing their character, but means cross-examination in the presence of the 
 accused. . . . He, like all other witnesses, must 'confront' the accused, 
 that is, be examined in the presence of the accused, and be subject to 
 cross-examination; but he is not disqualified to be a witness."^ 
 
 ROSS V. DEMOSS (1867). 
 
 45 ^li- 44T> 449- 
 Lawrence, J.: "This is a suit in equity, brought by Alexander 
 Demoss, in the Livingston Circuit Court, against Riley Ross, Margaret 
 Wood, Daniel J. Wood, and Benjamin W. Gray, to have a mort- 
 * gage satisfied, and the lands reconveyed to complainant. It ap- 
 
 pears that defendant in error, in April, 1858, executed a mortgage with 
 3 — Compare the authorities cited in W., 5 1910, and No. 368, ante. 
 
394 SUNDRY AUXILIARY RULES. No. 409. 
 
 a power of sale, to secure to William Ross $68, on forty acres of land. 
 That subsequently, in September of the same year, to secure the fur- 
 ther sum of $300, defendant in error executed a mortgage on another 
 tract of land, containing seventy-five acres, to William Ross, with power 
 of sale. ... It is alleged in the bill, that the sale by Ross was not in- 
 tended to be a foreclosure of these mortgages, but that it was at the 
 time agreed that defendant in error should have further time to pay and 
 redeem the lands; and that all of the money for which the mortgages 
 were given had been fully paid. 
 
 "On the trial below, the evidence^ was conflicting, but it seems to 
 preponderate in favor of the decree. The weight of the evidence of 
 Garner is somewhat impaired from the fact, that he was proved to have 
 been one of the attorneys in the case, and had a conditional fee, de- 
 pendent on the result of the suit. It is of doubtful professional pro- 
 priety for an attorney to become a witness for his client, without first 
 entirely withdrawing from any further connection with the case; and an 
 attorney occupying the attitude of both witness and attorney for his 
 client subjects his testimony to criticism if not suspicion; but where 
 the half of a valuable farm depends upon his evidence, he places himself 
 in an unprofessional position, and must not be surprised if his evidence 
 is impaired. While the profession is an honorable one, its members 
 should not forget that even they may so act as to lose public confidence 
 and general respect,"* 
 
 SUB-TITLE III. 
 
 OPINION RULE. 
 
 I. The General Principle,^ 
 
 Thomas Starkie, Evidence, j;j ( 1824) : "A witness examined as 
 to facts ought to state those only of which he has had personal knowl- 
 edge. ... It has been said that a witness must not be examined 
 *■'•" in chief as to his belief or persuasion, but only as to his knowl- 
 edge of the fact. ... As far as regards mere belief or persuasion, which 
 does not rest upon a sufficient and legal foundation, this position is cor- 
 rect, as where a man believes a fact to be true merely because he has 
 heard it said to be so."* 
 
 4 — Compare the authorities cited in W., an eminent engineer, as to the cause of a 
 
 § 191 1, and No. 370, ante. harbor's filling up, "was matter of opin- 
 
 5 — These first extracts are intended to ion, which could be no foundation for the 
 
 represent the various principles, past or verdict of a jury, which was to be built 
 
 prevailing, sound or unsound, upon which entirely on facts, not opinions"): "The 
 
 the Opinion Rule has been made to rest question is, to what has this decay been 
 
 by different authorities. owing? The defendant says, to this bank. 
 
 6 — MansHeld, L. C. J., in Folkes v. Why? Because it prevents the baclc- 
 
 Chadd, 3 Dougl. 158 (1872) (it was ob- water. That is matter of opinion; the 
 
 jected that the-evidence of Mr. Smeaton, whole case is a questiqp of opinion, from 
 
No. 412. OPINION RULE. 395 
 
 Sir George Coknewall Lewis, Influence of Authority in Matters 
 of Opinion, i (1849) '• "It is true that even the simplest sensations in- 
 volve 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 of his sense of sight, and his 
 statement implies a theory and explanation of the bare phenomenon. 
 When, however, the judgment is of so simple a kind as to become wholly 
 unconscious, and the interpretation of the appearances is a matter of 
 general agreement, the object of sensation may, for our present pur- 
 pose, be considered a fact. . . . The essential idea of opinion seems to 
 te that it is a matter about which doubt can reasonably exist, as to 
 which two persons can without absurdity think differently. The exist- 
 ence of an object before the eyes of two persons would not be a matter 
 of opinion, nor would it be a matter of opinion that twice two are four. 
 But when testimony is divided, or uncertain, the, existence of a fact may 
 become doubtful, and, therefore, a matter of opinion." 
 
 Dr. Richard Whately, Elements of Rhetoric, pt. I, c. II, § 4 (1828) : 
 ■"[As to matter of fact and matter of opinion,] decidedly it is not meant, 
 at least by those who use language with any precision, that there 
 '*•'■" is any greater certainty, or more general and ready agreement, 
 in the one case than in the other; e. g., that one of Alexander's friends 
 did or did not administer poison to him, every one would allow to be a 
 question of fact, though it may be involved in inextricable doubt; while 
 the question, what sort of an act that was, supposing it to have taken 
 jplace, all would allow to be a question of opini on, thou gh probably all 
 would agree in their opinion thereupon."J<' 0?T7^ 
 
 facts agreed upon. Nobody can swear that would D&- ^neraTly -inadmissible unless sus- 
 it was the cause. ... It is a matter of tained by facts showing the opinion to be 
 Judgment, what has hurt the harbor. . . . true. ... I find that the witnesses gener- 
 A confusion now arises from a misappli- ally said they thought the slave to be 
 cation of terms. It is objected that Mr. unsound, and if they had stopped there 
 Smeaton is going to speak, not as to facts, such testimony ought to have been re- 
 but as to opinion. That opinion, however, jected; but they go on to fortify their 
 is deduced from facts which are not dis- opinions with facts showing some foun- 
 puted, — the situation of banks, the course dation for them, and hence they were ad- 
 ■of tides and of the winds, and the shift- missible and were to be compared with 
 ing of sands. ... I cannot believe that the facts by the jury." , 
 where the question is whether a defect 7 — Campbell, J., in Kelley v. Richard- 
 arises from a natural or an artificial cause, son, 69 Mich. 436, 37 N. W. 514 (1888): 
 the opinions of men of science are not to "These cases are so common that few per- 
 be received. . . . The cause of the decay sons ever think that what are rightly called 
 of the harbor is also a matter of science. facts are at the same time no more nor 
 . . . Of this, such men as Mr. Smeaton less than conclusions. Thus, impressions 
 alone can judge. Therefore we are of of cold or heat, light and darkness, size, 
 opinion that his judgment, formed on facts, shape, distance, speed, and many personal 
 was very proper evidence." qualities, physical and mental, are eon- 
 O'Neall, J., in Settles v. Blackhead, i stantly acted on as facts, although not 
 McMull, 57 (1840): "It is true that the uniformly judged by all observers, for the 
 mere opinion of witnesses who have not simple reason that the facts cannot be oth- 
 "the aid of science to guide them would erwise communicated." 
 -not have any weight in such a case, and 
 
396 SUNDRY AUXILIARY RULES. No. 413. 
 
 FENWICK V. BELL (1845). 
 I C.& K. 313. 
 
 Case for running foul of plaintiff's ship, whereby she was damaged, 
 and thereby prevented from completing her cargo. Plea, not guilty. 
 
 The plaintiff's witnesses proved that the ships of the plain- 
 *■*■" tiff and defendant were respectively tacking up the river Thames 
 on a particular day; and that, at the time they got into Gravesend- 
 reach, the plaintiff's ship was on the larboard tack, and that the ship of 
 the defendant was on the same tack, following in her wake. It appeared 
 further, that, just as the plaintiff's ship had completed her tack and was 
 putting about, and whilst she was in that positiori which is technically 
 called "in irons," — that is, having no steerage-way upon her, — she was 
 run into by the defendant's ship. The master and crew of the plain- 
 tiff's ship stated in evidence, that they had done every thing in their 
 power to prevent the collision; and they stated furthw, that, had the 
 defendant's ship been put about sooner, as she ought to have been, the 
 collision would not have taken place. 
 
 The master of the Trinity-house of Newcastle was then called, and 
 the learned counsel for plaintiff proposed to ask him, whether, according 
 to the best of his judgment, — ^having heard the evidence, and admitting 
 the facts as proved by the plaintiff to be true, — ^he was of opinion that 
 a collision between the two ships could have been avoided by proper 
 care on the part of the defendant's servants. ' 
 
 Dundas, for the defendant, objected, that this question could not be 
 put, inasmuch as it was the very question which the jury were to try. 
 
 CoLTMAN, J., however, overruled the objection, and allowed the ques- 
 tion to be put, on the ground that it was a question having reference 
 to a matter of science and opinion.^ 
 
 8 — Messrs. Carrington and Kirwan, note matter is submitted to their consideration^ 
 
 in I C. & K. 313: "It seems to be a mis- and that the only effect of the opinion will 
 
 take to say that, in putting such a ques- be to assist them in judging of a question 
 
 tion to the witness as was put in the above of which the witness may reasonably be 
 
 case of Fenwick v. Bell [whether a colli- supposed, on account of his professional 
 
 sion could have been avoided by proper knowledge, to have been more competent 
 
 care] you submit to his decision a point to judge than themselves." 
 which the jury alone can try. On the con- Danforih, J., in Snow v. R. Co., 65 Me. 
 
 trary, it is submitted that the object of put- 231 (1875): "The reason for its exclusion 
 
 ting the question is not at all to decide given by counsel, that it would instruct 
 
 upon the fact itself, but to prove an en- the jury as to the amount of the verdict 
 
 tirely new fact, namely, the opinion of a to be rendered, would seem to be a very 
 
 person of competent skill as to what might good reason for its admission. Instruc- 
 
 or might not have been done by the parties tion is what the jury want. They would 
 
 under a given state of circumstances. The not be bound by it any more than by other 
 
 jury are of course to decide upon the value testimony, but it would be more or less 
 
 of this opinion, as well as upon the value valuable in enabling them to come to 3 
 
 of the evidence on which it is founded; and correct conclusion." 
 thus it is plain that in the end the whole 
 
No. 414. OPINION RULE. 397 
 
 BROWN V. COMMONWEALTH (1878). 
 14 Bush 398, 405. 
 
 HiNES, J.: "Appellant, charged with willful murder, was tried, con- 
 victed of voluntary manslaughter, and sentenced to the penitentiary for 
 sixteen years, and from that judgement he appeals. The substance 
 * * of the proof is, that appellant tendered money and demanded a 
 drink at the bar of one Jacob, and that Jacob and his bar-tender, Snyder, 
 both refused to let appellant have any liquor, Snyder assigning as a rea- 
 son that the father of appellant had so requested. Some harsh language 
 passed between the parties, when appellant drew a pistol and snapped 
 it at Jacob, and on its failing to fire, appellant, with a declaration to 
 the effect that he would get a pistol that would kill, went a short dis- 
 tance to his dwelling and in a few minutes returned with another pistol, 
 which he presented and snapped at Jacob. At this point Snyder called 
 to an officer to arrest appellant, and without further provocation he 
 turned and shot Snyder, from the effects of which he died within a few 
 days. The principal defense was insanity. . . . 
 
 "Some seventy witnesses were examined in the case, and the larger 
 number of them, experts and non-experts, were permitted to express 
 their opinions as to the sanity of the appellant, and of the testimony of the 
 non-experts, excepted to by counsel for appellant, is the following: . . . 
 
 "D. P. Guin said: 'Have known the accused since a boy, but have 
 not been with him much ; had but little to do with him. From observa- 
 tion of his conduct and acts, I had no reason to believe him insane, and 
 never heard anything of it. My attention was not called to it. He had 
 many peculiarities.' J. J. Brown said: 'Am not related to the accused; 
 have known him since 1849; had business with him and frequent chats. 
 From habits, conduct and chats I never thought him insane; have seen 
 peculiarities in members of his family, but never had any question as 
 to his sanity. I am not an expert nor a doctor. My attention was never 
 called to the accused's insanity.' R. H. Monow said: 'Have known 
 the accused all his life, and have always thought him sane. I am no 
 doctor, nor was my attention ever called to his insanity.' . . . Judia Long : 
 'I have known the accused and his family for thirty-five years. From 
 his manner, habits, and my personal knowledge of him I think him as 
 sane as any one.' . . . Many other witnesses were examined who testi- 
 fied substantially as the above, but we deem it unnecessary to give their 
 statements, as these are sufficient to dispose of the objection made by 
 counsel. The question is. When, if at all, will non-experts be permitted 
 to state in evidence an opinion as to sanity? 
 
 "This court, in Hunt's Heirs v. Hunt, 3 B. Mon. 577, expressed the 
 opinion that such evidence was incompetent unless the witness stated 
 the facts upon which the opinion was based, but did not undertake to say 
 what facts would be necessary to render the expression of an opinion 
 competent. . . . Exactly what is meant by the expression in some cases. 
 
398 SUNDRY AUXILIARY RULES. No. 414. 
 
 when such evidence has been admitted, that 'the witnesses must detail 
 the facts upon which the opinion is based,' we do not find explained. 
 If the admissibility of the opinion as evidence must depend upon the 
 facts from which it is formed, it is manifest that there is a question for 
 the Court antecedent to its introduction, and that to promulgate a gen- 
 eral rule as to the amount and quality of the evidence that should satisfy 
 the Court in every case would be impossible. ... It is not intended that 
 the admissibility of the evidence shall be made to depend upon the abil- 
 ity of the witness to state specific facts from which the jury may, inde- 
 pendent of the opinion of the witness, draw a conclusion of sanity or 
 insanity; for it is the competency of the opinion of the witness that is 
 the subject of inquiry. The ability of the witness to detail certain facts 
 of the mind may add very greatly to the weight of the opinion given 
 in evidence; but they will not of necessity affect the question of com- 
 petency."" 
 
 TAYLOR v. MONROE (1875). 
 43 Conn. 36, 44. 
 
 Trespass on the case for an injury from a defect in a highway of 
 the defendant town. . . . This highway passed down a steep hill about 
 thirty rods in length, twenty-five feet from the foot of which and 
 * * forming part of the highway was a bridge twelve feet in length, 
 and of the same width, elevated four feet above a stream which crossed 
 the highway. At the northerly end of the bridge the highway was 
 so raised above the adjoining ground as to endanger the public travel, 
 and on the loth of August, 1871, there was not a good and sufficient 
 railing or fence on the easterly side thereof, and the highway was then 
 and there out of repair, all of which was in consequence of the negli- 
 gence of the town of Monroe. 
 
 Upon the hearing the defendants claimed, and offered evidence to 
 prove, that the highway was not so raised as to endanger travel; that 
 no railing was required to make the same safe for public travel; that 
 the highway was an ancient one and was constructed and maintained in 
 conformity to the experience of skilled road-builders. The defend- 
 ants placed upon the witness-stand two witnesses who were professional 
 road-builders of twenty-five years experience in the business, and each 
 of whom had seen and examined and described the road and bridge and 
 railing and their surroundings at the place where the injury happened; 
 and then the defendants' counsel asked each of them the following ques- 
 tions : 
 
 I. "What is you opinion, based upon the facts you have testified to, 
 as to whether this causeway, at any point north of the railing, is so 
 raised above the adjoining ground as to require a railing in order to 
 render public travel reasonably safe?" 
 
 9 — Compare the authorities cited in W., § 1922. 
 
No. 415. OPINION RULE. 399. 
 
 2. "What is your opinion as a skilled workman in the construction 
 of roads, as to whether or not the road from the bridge to the foot of 
 the hill, supposing it to be as it was at the time of the accident, was 
 reasonably safe and convenient for public travel?" 
 
 3. "Is or not the elevation of the embankment and the slope of the 
 bank, and the depth of the ditch or gutter such, north of the end of the 
 pole, that if an ordinary vehicle were driven off the bank in the ordinary 
 mode of driving, it would overturn the vehicle or cause any accident?" 
 
 To each of these questions the plaintiff objected and the court ex- 
 cluded the same. ... 
 
 LooMis, J. : "The next question is, whether the opinions of the 'two 
 professional road-builders of twenty-five years experience in the busi- 
 ness,' who 'had seen and examined and described the road and bridge 
 and railing and their surroundings at the place where the injury hap- 
 pened, ought to have been received in answer to the four special in- 
 terrogatories mentioned in the record. If these witnesses were experts 
 and the subject matter was proper for their opinion, it must be conceded 
 that the evidence ought to have been received in answer to at least three 
 of the questions stated. . . . The rule as to experts is, that 'in cases 
 involving questions of science and skill, or relating to some art or trade, 
 experts are permitted to give opinions; the principle embraces all ques- 
 tions except those, the knowledge of which is presumed to be common 
 to all men. So the business which has a particular class devoted to its 
 pursuit, is an art or trade within the rule.' Rochester & Syracuse R. R. 
 Co. v. Budlong, 10 Howard's Pr. Rep., 289. Though the rule as stated 
 is well settled, yet there is often a practical difficulty in applying it 
 to the facts and circumstances of the particular case, especially where 
 the general subject matter, as in this case, is open to the observation 
 of many persons. If this case falls pretty near the line, we think it is 
 clearly on that side of the line that permits expert testimony. . . . 
 The true test of the admissibility of such testimony is not whether 
 the subject matter is common or uncommon, or whether many persons 
 or few have some knowledge of the matter, but it is whether the witnesses 
 offered as experts have any peculiar knowledge or experience, not common 
 to the world, which renders their opinions founded on such knowledge or 
 experience any aid to the Court or jury in determining the questions at 
 issue. In the case at bar the plaintiff claims that 'persons who use roads, 
 and not those that build them, are the proper experts.' The similar objec- 
 tion suggested in the case just cited would have a better foundation 
 than it has here, because persons who use roads do not necessarily have 
 their attention called to points of safety or danger in the construction 
 of the road; and moreover the users of a road do not constitute any 
 recognized class devoted to any business, trade, art or profession, con- 
 nected with such use, which could give any value to their opinions. 
 The road-builders must of necessity adapt their work to the purposes 
 for which it is intended, to-wit, the safety and convenience of public 
 travel, and in so doing they must keep in mind all the elements that 
 
400 SUNDRY AUXILIARY RULES. No. 415. 
 
 enter into the question of safety and convenience, and thereby they ac- 
 quire a peculiar knowledge and experience that gives special value to 
 their opinions upon the subject." 
 
 STATE v. PIKE (1870). 
 
 4P N. H. 423. 
 
 Doe, J.: "Opinions, like other te stimony, are competent in the class 
 
 of cases in which they are the best evidence, as when a~inere descriptton 
 
 wi thout opinion would generally convey a yiry^jmperfect~idea 
 
 ' ^f the force, m eaning, _and-inlierent_ evid ence of the t hinf f" flp - 
 
 scribed. Li ke other testi mony , opinions a re inco mpetent in the c lass 
 
 ofcases in which they are, nnt thft best evidenc e, as when they are. 
 
 _f(Y m>Hpri nn tipargay ny nn pviH^fp ce from which the jury Can form an 
 
 opinion as jatelLa s the witne s s , ^ ^ rule that opinions are o r "rp nnt pin- 
 
 dence must necessarily be in conflict with the rule which admits jthe_besL 
 
 evidenced A constant observer of the trial of cases, examining the tes 
 timony Mr the purpose of ascertaining how many opinions are received 
 and how many rejected, will find ten of the former as often as he finds 
 one of the latter; and if he is very critical, he will find the ratio much 
 greater than that. Opininng arc ^nnctantly givpn A case can hardly 
 
 be tried without them. Thei f nur^ hpr i< ^ sn \ras i-ar>A-4hnr~nK f m i luliil i u l 
 that they are not nntired a ^ opininng rlistiTigiiishpH frnm pther eyirlenca. 
 . . . The cases of identity of persons and things and of handwriting 
 having been named in the English books as illustrations of the compe- 
 tency of opinions, those cases were supposed to be peculiar exceptions 
 to the general rule, whereas they are mere instances of the application 
 of the general rule which admits the best evidence. This general, 
 natural, fundamental, comprehensive, and chief rule of evidence was 
 gradually ignored, and special and artificial rules were substituted; or, 
 if there was not an absolute substitution, there was such a removal of 
 emphasis from the general rule to the special rule that the former lost 
 the overshadowing influence and control which belong to it. . . . When 
 the fact that some opinions are not the best evidence had been magnified 
 and turned into the so-called general rule of law that opinions are not 
 evidence, and the rule admitting the best evidence was supplanted by 
 it, it was thought necessary to find a special precedent for every opinion 
 before it could be admitted. The judgments of Westminster Hall were 
 searched to find a decision that an opinion as to the value of property 
 was competent, and to find another decision that an opinion as to sanity 
 was competent. No such decisions could be found. None had ever 
 been made; W?""'' "'i c h opinio n s liar! s^'"''y° b T n r r r n JK i l 11 1 i m i; [ ii r i 
 t ionably competen t. The reason of the failure to find the decisions 
 was not understood here. The failure was taken as conclusive proof 
 that in England the opinions were not admitted. When an Ameri- 
 can mistake of this magnitude is discovered, it is fit to be corrected at 
 
No. 417. 
 
 OPINION RULE. 
 
 401 
 
 once. To return to the true principle is not to change the law, but to 
 cease violating the law; or, putting it in a milder form, to allow that 
 which is the law de facto to yield to that which is the law de jure."^ 
 
 2. Applications of the Rule to Specific Topics of Testimony. 
 
 HARDY V. MERRILL (1875). 
 
 56 N. H. 2i6, 241. 
 
 Appeal, by William H. Hardy against Isaac D. Merrill, from t he 
 decree of the judge of probate approving and _al )nwin g, jn solemn form, 
 the w ill of Joseph Hard y, deceased. Said will was dated July 26, 
 ■*^' 1870. . . . The issues were in common form. In the first, the 
 executed alleged that the said Joseph Hardy was of sound mind ; and in 
 the second, he alleged that said will was not obtained by undue influ- 
 ence: upon both of which allegations issue was taken by the appellant. 
 . . . Solomon Hardy, a brother of the testator, was called as a wit- 
 ness by the appellant, and the following questions among others, were 
 put to him. I. "Being a brother of Joseph Hardy, from your observa- 
 tion of his appearance and conduct at the time you saw him at your 
 house in June, 1869, state whether or not, in your opinion, he was, at 
 the time, of sound and disposing mind and memory." 2. "Being a 
 brother of the testator, from what you had observed as to his conversa- 
 
 I — Owen, J., in Railroad Co. ' v. Schulz, 
 43 Oh. St. 270, 2S3, I N. E. 324 (1885): 
 "It must not be supposed that there is 
 any rule of evidence concerning the opin- 
 ions of witnesses which is peculiar to 
 fences, highways, bridges, or steamboats, 
 or to any other special subjects of inves- 
 tigation. Where the facts concerning their 
 condition cannot be made palpable to the 
 jurors so that their means of forming opin- 
 ions are practically equal to those of the 
 witnesses, opinions of such witnesses may 
 be received, accompanied by such facts 
 supporting them as they may be able to 
 place intelligently before the jury.*' 
 
 Endicottf J., in Com. v. Sturtivant, 117 
 Mass. 122 (187s): "[The condition is that] 
 the subject matter to which the testimony 
 relates cannot be reproduced or described 
 to*the jury precisely as it appeared to the 
 ■witness at the time." 
 
 Peck, J., in Bates v. Sharon, 45 Vt. 481 
 O873) : "[Opinion is admitted] where the 
 facts are of such a character as to be in- 
 capable of being presented with their proper 
 force to any one but the observer him- 
 self, so as to enable the triers to draw 
 a correct or intelligent conclusion from 
 ■them without the aid of the judgment or 
 opinion of the witness who has had the 
 
 benefit of personal observation." 
 
 Gibson, J., in Cornell v. Green, 10 S. & 
 R. 16 (1823): "It is a good general rule 
 that a witness is not to give his impres- 
 sions, but to state the facts from which 
 he received them, and thus leave the jury 
 to draw their own conclusion; and wher- 
 ever the facts can be stated, it is not to 
 be departed from. But every man must 
 judge of external objects according to the 
 impression they make on his senses; and 
 after all, when we come to speak of the 
 most simple fact which we have witnessed, 
 we are necessarily guided by our impres- 
 sions. There are cases where a single im- 
 pression is made by induction from a num- 
 ber of others, as, where we judge whether 
 a man is actuated by passion, we are de- 
 termined by the expression of his counte- 
 nance, the tone of his voice, his gestures, 
 and a variety of other matters; yet a wit- 
 ness speaking of such a subject of inquiry 
 would be permitted directly to say whether 
 the man was angry or not. ... I take 
 it that wherever the facts from which a 
 witness received an impression are too 
 evanescent in their nature to be recollected, 
 or are too complicated to be separately 
 and distinctly narrated, his impression from 
 these facts become evidence." 
 
402 OPINION RULE. No. 417. 
 
 tion, conduct, and general deportment as to all subjects, up to July 26, 
 1870, have you any opinion as to his sanity at that date, and, if so, 
 what is it?" The referees excluded these questions, and the appellant 
 excepted. . . . 
 
 Foster, C. J. : "It would be merely a repetition of the historical part 
 of Judge Doe's opinion, in State v. Pike, 49 N. H. 421-423, if I were 
 to relate how, after the eminent jurists, who presided in our courts the 
 years 18 11 and 1833, had all passed off the stage, the 'Massachusetts 
 exception' gradually worked into favor in New Hampshire, it having 
 been erroneously declared by the Massachusetts courts to be an expres- 
 sion of the English common law. ... A tolerably careful investigation 
 authorizes me to repeat the language of Judge Doe, that 'in England no 
 express decision of the point can be found, for the reason that such evi- 
 dence has always been admitted without objection. It has been uni- 
 versally regarded as so clearly competent, that it seems no English, 
 lawyer has ever presented to any court any objection, question, or doubt 
 in regard to it.' State v. Pike, 49 N. H. 408, 409. I presume, however,, 
 it will not be denied that in the ecclesiastical courts, where questions 
 of testamentary capacity are generally tried, such opinions have always 
 been received. . . . The practice in the courts of the common law has 
 been universal and unwavering in the same direction; and 'the num- 
 ber of English authorities is limited only by the number of fully reported 
 cases in which the question of sanity has been raised.' State v. Pike, 
 49 N. H. 409. . . . 
 
 "Courts and text-writers all agree that, upon questions of science 
 and skill, opinions may be received from persons specially instructed 
 by study and experience in the particular art or mystery to which the 
 investigation relates. But without reference to any recognized rule or 
 principle, all concede the admissibility of the opinions of non-profes- 
 sional men upon a great variety of unscientific questions arising every 
 day, and in every judicial inquiry. These are questions of identity, hand- 
 writing, quantity, value, weight, measure, time, distance, velocity, form, 
 size, age, strength, heat, cold, sickness, and health; questions, also, con- 
 cerning various mental and moral aspects of humanity, such as dis- 
 position and temper, anger, fear, excitement, intoxication, veracity, gen- 
 eral character, and particular phases of character, and other conditions- 
 and things, both moral and physical, too numerous to mention. . . . 
 
 "Opinions concerning matters of daily occurrence, and open to com- 
 mon observation, are received from necessity; and any rule which ex- 
 cludes testimony of such a character, and fails to recognize and submit 
 to that necessity, tends to the suppression of truth and the denial of 
 justice. The ground upon which opinions are admitted in such cases is, 
 that, from the very nature of the subject in issue, it cannot be stated 
 or described in such language as will enable persons, not eye-witnesses,. 
 to form an accurate judgment in regard to it. How can a witness de- 
 scribe the weight of a horse? or his strength? or his value? Will any 
 description of the wrinkles of the face, the color of the hair, the tones. 
 
No. 417. SUNDRY APPLICATIONS. 403 
 
 of the voice, or the elasticity of step, convey to a jury any very accurate 
 impression as to the age of the person described? And so, also, in the 
 investigation of mental and psychological conditions, — because it is im- 
 possible to convey to the mind of another any adequate conception of 
 the truth by a recital of visible and tangible appearances, — because you 
 cannot, from the nature of the case, describe emotions, sentiments, and 
 affections, which are really too plain to admit of concealment, but, at 
 the same time, incapable of description, — the opinion of the observer is 
 admissible from the necessity of the case; and witnesses are permitted 
 to say of a person, 'He seemed to be frightened' ; 'he was greatly excited' ; 
 'he was much confused' ; 'he was agitated' ; 'he was pleased' ; 'he was 
 angry.' . . . All evidence is opinion merely, unless you choose to call it 
 fact and knowledge as discovered by and manifested to the observation 
 of the witness. . . . And it seems to me quite unnecessary and irrelevant 
 to crave an apology or excuse for the admission of such evidence, by 
 referring it to any exceptions (whether classified, or isolated and arbi- 
 trary) to any supposed general rule, according to the language of some 
 books and the custom of some judges. There is, in truth, no general 
 rule requiring the rejection of opinions as evidence. A general rule 
 can hardly be said to exist, which is lost to sight in an enveloping mass 
 of arbitrary exceptions. . . . Suppose, the day before or a week before 
 the death, a lawyer, farmer, and blacksmith saw the deceased, and had 
 an opportunity to see whether he appeared to be well or sick: suppose 
 the lawyer is asked, 'Did you observe any indications of his being well 
 or sick?' and the answer to be, 'I observed no indication of his being 
 sick ; he appeared as well as usual, as well as I ever saw him' ; suppose 
 the farmer is asked, 'Did you notice anything unusual in his appearance 
 or conduct ?' and the answer is, 'No, I did not' ; suppose the blacksmith 
 is asked, 'In your opinion was he well or sick?' and the answer is, 'In 
 I my opinion he was perfectly well; his spirits, looks, and behavior, all 
 showed, in my opinion, freedom from weakness and pain' ; what legal 
 distinction can be drawn between these questions and answers, to make 
 lone competent, and either of the others incompetent? It is all opinion, 
 land nothing but opinion, of the man's physical condition in relation to 
 health or disease. The use or the omission of the word 'opinion,' in 
 either of those questions or answers, does not affect the character of the 
 testimony in the slightest degree. Calling such testimony 'opinion' ([p ea 
 no t make it 'opi nion' : and calling it s omethin f]^ f]"" '^"pr ""<■ make it; 
 s omething elsc T" . . ' " ' ' 
 
 ^ "Now let us imagine a scene that might very probably be exhibited in 
 any~court where the Massachusetts rule prevails. One witness says: 
 'He did not appear as usual; he did not appear natural.' 'Very well,' 
 says a learned barrister, 'very well, Mr. Witness. You may say that, — 
 that is quite regular, — that is your opinion. Now tell us in what respect 
 he did not appear "as usual" or "natural."' 'Well, I can't describe it, 
 but I should call it wandering, delirious ; he was incoherent in his talk.' 
 'Very well, Mr. Witness, you acquit yourself like a sensible man. Now 
 
404 OPINION RULE. JCfo. 417. 
 
 tell the jury whether in your opinion he was then of sound mind.' 'I 
 object/ thunders the learned barrister on the other side. 'I object,' 
 thunders the opposing junior. 'Counsel know better; it is an insult and 
 an outrage to put such a question.' , . . The witness is confounded. The 
 jury are confounded. Everybody is confounded, — except those who un- 
 derstand that 'incoherence of thought' and 'delirium,' vulgarly called 
 'wandering,' is not a state of mental unsoundness, is not mental disease ; 
 and that 'as usual' or 'natural' is not a condition of mental health. 
 Whether it is such condition or not is a question then solemnly debated. 
 ... At the close of the scene which I have described, not a man of the 
 laity goes out of "the room without being disgusted with this exhibition 
 of the law as a system of arbitrary rules, that ignoring all legal ideas 
 decides upon a distinction purely verbal. And why should not the laymen 
 be disgusted with the senseless subtlety which permits one party to show 
 by his witness that a testator 'appeared perfectly natural,' and forbids 
 the adverse party to offer the testimony of another witness that 'he didn't 
 appear to be in his right mind'? . . . The selection of the phraseology 
 in which such an opinion may be expressed, and that in which 
 it cannot be uttered, depends on no legal principle, but on the 
 mere whim of the Court. Such an arbitrary and senseless choice or 
 rejection of terms in which to express an admissible opinion is mere, 
 sheer logomachy, a waste of precious time given us for better purposes, 
 a verbal quibble unworthy of the law and calculated to bring it into 
 contempt."^ 
 
 1 — The following cases illustrate the Mr. Paine and from his conversaticns 
 
 peculiar application of the rule to this with you, what impression did he give you 
 
 topic in Massachusetts, in New York, and as to whether or not he was rational or ir- 
 
 in Georgia: irrational?" while this one was pronounced 
 
 Nash V. Hunt, Ii6 Mass. 237, 251 unexceptionable: **From the conversations 
 (1874); Wells, J.: "Objection is made you had with him and from his actions, 
 to the testimony of the witness Beal, who his acts in your presence, were those con- 
 had conversations with the testator, and versations or those acts those of a rational 
 who was allowed to state that at the last or an irrational man?" 
 interview before the date of the will, he Maynard, J.: **The trial court applied 
 'observed no incoherence of thought in the correct rule in regard to this class of 
 the testator, nor anything unusual or evidence. The witness was a layman and 
 singular in respect to his mental condi- could not properly give an opinion as to 
 tion.' We do not understand this to be the mental capacity of the grantor, or 
 the giving of an opinion as to the con- as to whether he was rational or irra- 
 dition of the mind itself, but only of its tional, even when such opinion might 
 manifestations in conversation with the be based upon specific acts and conver- 
 witness. So far as his mental condition satians, and his personal observations, 
 was manifested by the witness by that He could state the acts and conversa- 
 interview, in conversation, looks or de- tions of which he had personal knowl- 
 meanor, he could properly state, as a edge, and then be permitted to say wheth- 
 matter of observation, whether it was in er, in his judgment, such acts and con- 
 the usual or natural manner of the tes- versations were rational or irrational, or 
 tator or otherwise." were those of a rational or irrational per- 
 Paine v. Aldrich, 133 N. Y. 544, 547, son. This is the extent to which any 
 30 N. E. 725 (1892); the following ques- of the cases have gone." 
 tion was held improper: "Taking into Welch v. Stipe, 95 Ga. 762, 22 S. E. 
 consideration these facts that you have 670 (1895); the test is: "Before the opin- 
 stated here in your testimony to-day, ion of a non-expert witness can be consid- 
 which you learned from your contact with ered it must appear not only that the wit- 
 
J^O. 418. SUNDRY APPLICA2TONS. 405 
 
 KEMPSEY V. McGINNIS (i8;o). 
 
 ai Mich. 123, ijp. 
 
 This case was brought into the circuit court for the county of Kala- 
 mazoo, by the appeal of Mary Kempsey from the judgment of the pro- 
 bate court of that county, allowing the will of Thomas Patterson. 
 *■'■*' The issue formed in the circuit court was tried by a jury, who 
 •rendered a verdict for the proponents. The questions for review in this 
 court arise upon the rulings of the circuit judge on the admission and 
 reje ction of ev idence as to the testame ntary capacity of the t estator. 
 Dr. William MoTtram was called by the appellant and contestant, and 
 after testifying to facts within his personal observation, as to the condi- 
 tion of the testator, stated that he heard Dr. Abbott testify, and recol- 
 lected the description he gave of Patterson, and that he heard Eckard 
 testify, except a part of the cross-examination. He was then asked : 
 
 1. Question: "Assuming the testimony of the witness as true in refer- 
 erence to the condition of Patterson during the days they mentioned, 
 what, in your opinion, was his capacity to make a will, or as to his being 
 of sound and disposing mind?" This question was objected to by the 
 appellees as incompetent and irrelevant. The Court sustained the ob- 
 jection. To which ruling and decision the counsel for appellant duly 
 excepted. 
 
 2. Question: "Assuming the testimony of Eckard in regard to the 
 condition of Patterson during the latter part of Thursday and Thurs- 
 day night, and Friday and Friday night, including his conversation and 
 what he did, to be true; and assuming the testimony of Dr. Abbott in 
 regard to his symptoms from Friday morning to the time you went 
 there, to be true, including your own observation on Saturday, what is 
 your opinion as to Patterson being of sound disposing mind and memory 
 on Friday morning, so as to be able to transact business continuously 
 and understandingly from nine until eleven o'clock?" This question was 
 objected to by the counsel for appellees on the ground of irrelevancy and 
 incompetency, and it was argued that the answer to the question would 
 take the question at issue from the jury, and that an expert cannot be 
 allowed to give an opinion upon facts that were not under his own ob- 
 servation. The Court sustained the objection. To which ruling the 
 counsel for the appellant duly excepted. 
 
 3. Question: "Assuming that the deceased, Thomas Patterson, was a 
 man sixty-three years of age, of thin chest, and weak physical frame, 
 and stooping; that he was attacked the 12th of December, 1865, with 
 
 ness has the opportunity of learninsr the cated. . . . But where [as here] she 
 
 facts upon which the opinion is predicated, neither states the facts coming under her 
 
 but it must appear that the opinion was observation nor states that the opinion ex- 
 
 in fact based upon the facts and circum- pressed is the result of such observation, 
 
 stances so ascertained, and not upon bare there is no possible theory upon which 
 
 ■conjecture; and, in addition to this, it it can be received in evidence." 
 must appear that the witness, in the expres- Compare the authorities cited in W., 
 
 sion of the opinion, speaks with refer- § 1938. 
 ence to the facts upon which it is predi- 
 
406 OPINION RULE. No. 418. 
 
 pleuro-pneumonia ; that on the afternoon of Thursday, the 14th of De- 
 cember, he was in great pain and suffering, breath short, and through 
 that night the pain and suffering and short breathing continued, with 
 much thirst, with his mind wandering and flighty, running from one 
 subject to another, his face pale and yellowish, purple under his eyes, 
 that he was sleepless, and yet in a drowsy condition throughout the night, 
 muttering and talking to himself, insisting that his horses were sick, 
 when in truth, they were not sick; that on Friday morning he suffered 
 and complained of pain, short breath, and much thirst, taking no notice 
 of a person whom he himself had called in; that he was on the same 
 morning, at about nine o'clock, found by a physician who examined him, 
 a very sick man, in great pain, short breathing, not much expectoration, 
 only about a gill during the day, and that of a brownish color; skia 
 neither hot nor cold; that his condition remained so during that day; 
 that on Saturday morning he, was worse; that on examination of him 
 by you on Saturday afternoon, his lungs were found in the second stage 
 of that disease, with little or no expectoration then, and no pain, but 
 complained of having suffered great pain, breath short, voice bronchial, 
 and lying in a state of stupor, except when aroused by a question put 
 to him, and then immediately subsiding into stupor again, with skin 
 cool, feet and hands cold, ankles and wrists clammy, and face and ex- 
 tremities somewhat livid, and that he died about eleven o'clock that 
 night,"*" what is your opinion as to Patterson being of sound disposing 
 mind and memory on Friday morning, so as to be able to transact busi- 
 ness from nine to eleven o'clock?" The question was objected to by 
 the appellees on the following grounds: ist. The question assumes facts 
 of which there is no proof. 2d. It asks the opinion of the witness upon 
 the principal question to be found by the jury — that is, the soundness of 
 the mind of the testator. The objection was sustained by the Court 
 upon the second ground.^ To which ruling the appellant duly excepted. 
 Dr. Foster Pratt was sworn for appellant, and testified that he had 
 heard nearly all the testimony given by Eckard, Drs. Mottram and Ab- 
 bott. The same hypothetical question to the "*" with the following addi- 
 tion: "In your opinion, was Patterson, on the morning of the 15th, the 
 day before his death, and during the forenoon of that day, capable of 
 planning and executing such a paper as is here offered as his will," 
 was then put to the witness. This question was objected to by the 
 appellees on the ground that it calls for the opinion of the witness on a 
 fact to be found by the jury. Objection sustained by the Court. To 
 which ruling the appellant duly excepted. The same hypothetical ques- 
 tion to the "*" with the following addition: "In your opinion, was Pat- 
 terson, at and during the time above noted, in a physical and mental con- 
 dition to transact any business requiring an exercise of the judgment, 
 the reasoning faculties, and a consecutive continuation of thought," was^ 
 then put to the witness. This question was objected to by the appellees 
 
 1 — The ruling on appeal as to the first of the question) is set out post. No. 431. 
 of these objectlions (the hypothetical form 
 
No. 418. SUNDRY APPLICATIONS. 407 
 
 on the same ground as the last. The Court sustained the objection, and 
 the appellant duly excepted. 
 
 Christiancy, J. : "To what extent and in what manner the mind of 
 the testator was affected by the disease, or what was his mental condi- 
 tion, was a question of fact, upon which it was competent for the pro- 
 fessional witnesses to express their opinions. But what degree^fjnetv^ 
 
 fal raparit y is nP-c ea«M=j^M--fv->>nahlp a -t-prrhri-mM^n^mialfp'a^^TTaTiH wiU, tO what 
 
 extent and with w hat degree o f perfection he must u nderstand th e will 
 and the persqns_ai}d_property a ffected by it, o r to what extent his mind 
 must be impaired to render him incapable, is a question of law exclu- 
 sively fo r the court , anH with •mh'trh t1^ ^ witnesses have n othi5g^Mldo7 
 And it is a question of law of no little difficulty, which calls for the 
 highest skill of competent jurists, and upon which the ablest Courts are 
 not entirely agreed. . . . And if — as common experience has shown, and 
 as courts have often remarked — opinions of professional witnesses upon 
 such questions have become of little practical value upon trials, from the 
 almost universal conflict between those called upon the different sides — 
 and this upon questions pertaining to their own peculiar profession — such 
 opinions must be rendered utterly useless, and become a source of error 
 and confusion, if the professional witness is allowed to fix his own legal 
 standard of testamentary capacity, thus mixing up in the minds of the 
 jury his conclusions upon matters of law of which he is ignorant, with 
 his conclusions from facts pertaining to his profession, which he claims 
 to understand, while his professional brother, testifying on the other side, 
 equally competent, comes to directly opposite conclusions from the same 
 facts. Besides, if each witness is allowed to fix his own legal standard 
 of testamentary capacity, no two of them would be likely to fix upon 
 the same, and there may be an apparent agreement while they differ in 
 fact, and an apparent conflict when there is a real coincidence in opinion, 
 and the jury have no means of knowing the real meaning of the wit- 
 nesses or judging of the value of their testimony. 
 
 "It may be urged in reply to this, that the confusion arising from al- 
 lowing the witnesses to answer questions involving their opinion of the 
 legal capacity of a party to make a will, may be cleared up by a cross- 
 examination, ascertaining what, in his opinion, constitutes such capacity, 
 and that any error in this respect may be corrected by the court in his 
 charge, or otherwise. But it seems to be much wiser, wherever it is 
 practicable, to exclude the improper question, and avoid the confusion 
 altogether, than to admit it first, and then undertake to get rid of its 
 effects, an experiment which is never wholly successful. ... It would 
 have been much fairer, more in accordance with principle, and much 
 less in the nature of leading questions to have put the questions in such 
 a manner as to call only for an opinion of what the real state of the 
 testator's mind was, how much intelligence he possessed, how far he 
 was capable of understanding the nature and situation of his property, 
 his relation to others, and the reasons for giving or withholding his 
 bounty as to any of them, etc., than to ask them whether he had a dis- 
 
408 OPINION RULE. No. 418. 
 
 posing mind and memory, or whether he was capable of making a will. 
 The course I have suggested as the true one, was adopted by the pro- 
 pounders in their examination of professional witnesses, and by the con- 
 testants also, in some of their questions which were not objected to by 
 the proponents of the will. . . . These questions were, whether from the 
 conversation they had with him, and from what he then saw of him, he 
 was capable of understanding a document of any considerable length if 
 it had been read to him; also, what capacity the testator had, and 
 whether, in the opinion of the witness, the testator was at the time, ca- 
 pable of holding a conversation like the one testified to by another wit- 
 ness. . . . 
 
 "Two questions, however, are put by the contestants to Dr. Pratt, 
 upon the assumption of the same facts, and overruled by the court, 
 ■which I think did not properly fall within the objection I have been dis- 
 cussing. 1st. 'Was the testator, in your opinion, at the time, etc.„xa- 
 pable of planning and executing such a paper as is here offered as his 
 will?' and, 2d, 'Was he in a mental and physical condition to transact 
 any business requiring an exercise of the judgment, the reasoning 
 faculties, and a consecutive continuation of thought?' The first 
 of these questions was, I think, admissible under the decision 
 of this court, in Beaubien v. Cicotte, 12 Mich., 505, and I con- 
 cur entirely with my brother Campbell in that case, that it is proper to 
 put such questions to the witness as call for his opinion upon the ca- 
 pacity of the party to understand the very act, or kind of act, in dispute. 
 I am unable to see the soundness of the principle in which five of the 
 judges concurred in the Parish will case, that the question in every case 
 is, 'had the testator, as compos mentis, capacity to make o will, not had 
 he the capacity to make the will produced.' Men do not make wills in 
 the abstract, but some particular will ; and the question should, I think, 
 always relate to the capacity to understand and make the will in contro- 
 versy. Some wills are short, plain, and easy to be understood; others 
 are long and exceedingly complicated in their provisions. If the testa- 
 tor sufficiently understands the short and simple will which he has made, 
 it should not be set aside because he had not the capacity to understand 
 the long and complicated one which he did not make. 
 
 " But both the questions a bove mentioned put to Dr. Pratt, when fairly 
 construed, call, 1 thmk, only tor the witness's opinion as to the degree 
 of intelligence actually possessed by the testator, without any opinion of 
 his on the legal question of testamentary capacity; and this either party 
 had a right to show, whether it should be greater or less than the law 
 requires to constitute testamentary capacity in reference to the will in 
 question. Xbe rejection of th ese questions was, th erefore , in my opinioiL . 
 erroneous."^ ->5 t{f /\*^ ** " ' *" 
 
 -Compare the authorities cited in W., § 1958. 
 
No, 419. SUNDRY APPLICATIONS. 409 
 
 YOST V. CONROY (1883). 
 p^ Ind. 464. 
 
 Elliott, J.: "There is much confusion and some conflict in our 
 
 cases upon the subject of proving benefits and damages to land affected 
 
 by the construction of ditches, turnpikes and ways, and this case 
 
 requires an examination of that subject. In cases of confusion 
 
 and conflict, the better way is to search for principle and adopt that view 
 
 which stands most firmly on sound principle. 
 
 "It is an elementary doctrine, that witnesses who are ac quainted with 
 the value of propertv may express arTopinion as tn the val ue. Thus far" 
 all is plain and free from doubt. Opinions of witnesses as to the amount 
 of benefits or damages sustained by a party are not competent. It may 
 well be held that these cases declare the general rule correctly, since to 
 hold otherwise would put the witnesses in the place of the jurors, and 
 commit to them the decision of the amount of recovery. A contrary doc- 
 trine would also violate the rule that witnesses can not express an opin- 
 ion upon the precise point which the issues present for the decision of 
 the jury. 
 
 "There is not, however, the slightest conflict between the two proposi- 
 tions stated. It is one thing to prove the value of property, and quite 
 another to prove what damages have been sustained by a party, or how 
 much benefit has accrued to a litigant. . . . Many things enter into the 
 estimate of benefits and damages besides the value of the land taken, 
 and the value of the residue with and without the improvement, so that 
 in expressing an opinion as to the value a witness does not give an opin- 
 ion as to the amount of the benefit or damages; he does no more than 
 furnish evidence upon one of the elements of the estimate. It is im- 
 possible to conceive that juries or courts can justly estimate benefits and 
 damages without the aid of opinions of values from competent witnesses, 
 unless, indeed, it be assumed that courts and juries have knowledge of 
 the values of all kinds of property. If this assumption were just, then, 
 no doubt, all that, would be needed would be an accurate description of 
 the property; but every one knows that in the very great majority of 
 cases neither courts nor juries possess such knowledge as would enable 
 them, unaided by opinions, to affix just values to property. . . . 
 
 "The question which here directly faces us is this: Is it competent 
 
 tn prnvw ttip yglii e nf UnA ^pfr,rfl\ >^;tr1^ ;= ,-^tict .-ii-tf47 find -fftrrrr" 
 
 its value will be after the construc tion_of t he ditch? It can not be 
 doubted that such evidence tends to assist in determining the question 
 of damages and benefits, nor is there reason for supposing that it is 
 not material. The situation of the land and the location and capacity 
 of the ditch may be described with perfect accuracy, and yet a jury- 
 be utterly unable to form a just estimate of the amount of benefits or 
 damages. Of what assistance to a jury composed of clergymen, mer- 
 chants, and bankers would be a description of the minutest accuracy, 
 without some estimate of values by competent witnesses? Possibly, it 
 
410 OPINION RULE. No. 419. 
 
 would enable such a jury to form a crude conjecture; it could do but 
 little more. . . . There seems to be, elsewhere than in Indiana, very 
 little diversity of judicial opinion upon the proposition that a witness 
 may state his opinion of the value of land with and without the pro- 
 posed highway or ditch. The only question is whether he may not give 
 his opinion in broad, general terms as to the extent of the injury or 
 benefit. ... It is a general rul e that a witness c an not be allowed to 
 express man opimorf upon t he exact question which ^the jurT £ jire"7equired 
 _tgj3eSd£t . . . The cases hnlHing that gener al opinions as tojh f ammm t 
 '■of^da mages suffered by a pla iniig_ jrp nnt mmp etctv^-^^r^agpri ^^p^ 
 this general principle. 'V\ ^ can see no reason why the gpnpral r^iU 
 s hould not apply to a case where _t1ip gnpstinn i«j -^rhpthpr tb«.r-rfTT?^i- 
 or highw ay will be one of public utilitv. The question is one upon 
 which no especial learning or experience is required, and in such cases 
 opinions are not, as a general rule, allowed to go to the jury."'' 
 
 PENN MUTUAL LIFE INSURANCE CO. v. MECHANICS' SAV- 
 INGS BANK & TRUST CO. (1896). 
 jp CCA. 286, 72 Fed. 413, 428. 
 
 This action was on a policy of insurance for $10,000 issued December 
 
 2, 1892, by the Penn Mutual Life Insurance Company to John Schardt, 
 
 on his own life. Schardt died April 17, 1892, during the cur- 
 
 rency of the policy. The questions and answers in the application 
 
 which are material to the controversy here were as follows : 
 
 "6. Have you your life insured in this or any other company? (If so, 
 give the name of each company, and the kind and amount of each pol- 
 icy) A. Yes; $10,000 in Northwestern, 20 pay life; $5000 in Aetna; 
 $1,000 in New York Mutual Life, renewable term." After these answers 
 this statement was signed by the applicant: "I hereby warrant and agree, 
 that I am temperate in my habits, now in good health, and ordinarily 
 enjoy good health, and that in the statements and answers in this appli- 
 cation no circumstance or information has been withheld touching my 
 past and present state of health and habits of life, with which the Penn 
 Mutual Life Insurance Company ought to be made acquainted." ... It 
 was conceded that at the date of the application Schardt had a policy for 
 $5,000 in the New York Life Insurance Company, which he failed to 
 mention. Schardt's salary as teller was $1,500, and he had but a small 
 amount of property. When he died in April, 1893, he had $80,000 of 
 insurance on his life, nearly all of which had been written within six 
 months.. It was conceded that, for more than a year prior to his death, 
 Schardt had been constantly embezzling the funds of his bank, and that 
 his indebtedness to the bank thus criminally incurred amounted at the 
 time of his application for this policy to little less than $100,000, and at 
 his death exceeded that sum. He did not disclose the fact of his crime 
 to the defendant at the time of his application, or at any other time. 
 Defendant called insurance experts to testify in regard to the materiality 
 
 2 — Compare the authorities cited in W.. § 1943. 
 
No. 420. SUNDRY APPLICATIONS. 411 
 
 ■of the facts in respect to which it was claimed that Schardt had been 
 guilty of misrepresentation or concealment. The Court permitted the 
 experts to say, whether, in their opinions, the facts misstated or con- 
 cealed were material, but refused to allow them to say whether, by the 
 usage of all insurance companies, such facts were regarded as material 
 to the risk. 
 
 Taft, J. : "At the trial the defendant introduced witnesses who had 
 been long engaged in the insurance business, and was permitted by the 
 court to ask them whether the facts concerning which it was either 
 admitted or claimed that Schardt had made untrue statements, and the 
 fact of his embezzlements which he did not disclose, were material to 
 the risk; but the court declined to permit an answer to the question 
 whether, by the usage and practice of all insurance companies, such acts 
 were regarded as material. This latter ruling of the court was excepted 
 to by the defendant company. The question of evidence thus presented 
 has been before the courts of England and America in many different 
 
 1 phases, and the decisions present a bewildering conflict of authority. . . . 
 It is in accord with the better reason to exclude opinions of insur-^ 
 ance experts upon the point whether an undisclosed fact was material 
 to an insurance risk. If it requires scientific knowledge or peculiar J 
 skill to trace the possible causal or evidential connection between the 
 fact claimed to be material and the loss or death insured against, then, 
 of course, the testimony of those learned in the necessary science, or 
 trained in the particular craft, should be furnished to the jury, to enable 
 them properly to estimate the weight which a reasonably prudent insurer j 
 would naturally give to the fact, in his calculation of chances. But | 
 yrhprp tht^ ralriilatinn of the_ chanccs involves, a_CQiisid£ratio n only of 
 f acts of everyday life, of t he motives of men living in the same com- | 
 munity with membersof_the_4ury,--aiui_Qf_ those ordinary physical and 
 natural causes ot whichevery man is presumed to have an understand- i 
 Vin gr*ririi. JifllmlL lu ijee w^^y an^jasMianc e examm er shouig~bg~permitfed/ 
 ^to influenrp <;hp jur y by eivinp' his sworn opinion on th e veiyj ssiie wh irlv 
 they are assembled to try, and of which they are presumed to have the 
 same "rr"'"tnnili''° "rr>" wViirh to fnnnrl a reliable judgment as he . It is 
 Ltrue, he may hav ^^"^ nf-fggi"nn j^^ hiy finsi^ipss^tn consider and weigh 
 facts ot this character, for t his p urpose, muchmore ffeqti ently than the 
 jury, but that does not render his opinions on the facts competent evi- 
 dence. . . . Culdiuli', tlieie IS llie same gl'tmrni fui uxduding the indi- 
 vidual opinions of insurance men [in life insurance] upon the materiality 
 of particular facts as in marine and fire insurance. Of course, the evi- 
 dence of physicians as to the tendency of diseases and bodily conditions 
 or habits to shorten life is competent, but insurance men are not experts 
 upon these subjects. Facts other than those relating to the health and 
 habits of the applicant usually either relate to the motive of the appli- 
 cant to destroy himself, or increase the probability of death by ex- 
 posure to bodily injury. Of the materiality of this class of facts the 
 jury can judge quite as well as one experienced in passing on insur- 
 ance risks. Tlbe^are within the common knowledge of mankin^. . . . 
 
412 OPINION RULE. No. 420. 
 
 "The better authorities, however, seem to sustain the rule that the 
 insurance experts may testify concerning the usage of insurance com- 
 panies generally in charging higher rates of premium or in rejecting 
 risks, when made aware of the fact claimed to be material. The dis- 
 tinction between this and the rule just discussed may seem at first a 
 close one, but on consideration it appears to be sound. It may be 
 asked why, if one insurance man of long experience cannot give his 
 individual opinion that a fact is or is not material to a risk, should it 
 be competent for him to state the opinions of a great many insurance 
 men on the same question? A fact is material to an insurance risk 
 when it naturally and substantially increases the probability of that 
 event upon which the policy is to become payable. Materiality of a 
 fact, in insurance law, is subjective. It concerns rather the impression 
 which the fact claimed to be material would reasonably and naturally 
 convey to the insurer's mind before the event, and at the same time 
 the insurance is effected, than the subsequent actual causal connection 
 between the fact, or the probable cause it evidences, and the event. 
 Thus, it is by no means conclusive upon the question of the materiality 
 of a fact that it was actually one link in a chain of causes leading to 
 the event. And, on the other hand, it does not disprove that a fact 
 may have been material to the risk because it had no actual subsequent 
 relation to the manner in which the event insured against did occur. 
 A fair test of the materiality of a fact is found, therefore, in the answer 
 to the question whether reasonably careful and intelligent men would 
 have regarded the fact, communicated at the time of effecting the 
 insurance, as substantially increasing the chances of the loss insured 
 against. The best evidence of this is to be found in the usage and 
 practice of insurance companies in regard to raising the rates or in 
 rejecting the risk on becoming aware of the fact. . . . But care must 
 be taken that the witness shall not substitute his own opinion, or that 
 of his own company only, neither of which is relevant, for the usage 
 of companies generally. The modern practice of life insurance com- 
 panies seems to be, not to vary the premium, except for age, and either 
 to accept risks of the same age, or reject them altogether. If so, there 
 would seem to be no means of judging the materiality of any other 
 fact than that of age, from the usage or practice of insurance compan- 
 ies, except by their acceptance or rejection of the risk; and the ques- 
 tion should be limited, in such cases, therefore, to whether insurance 
 companies generally, if made aware of the undisclosed fact, would re- 
 ject the risk. The question which the court refused to permit was 
 whether the misrepresented or concealed fact would be regarded among 
 insurance companies generally as material. This was rightly rejected. 
 The proper form in which the question might have been put to a duly- 
 qualified witness was: 'Are you able to say, from your knowledge oil 
 the practice and usage among life insurance companies generally, that! 
 information of this fact would have enhanced the premium to be ] 
 charged, or would have led to a rejection of the risk.' "* 
 3 — Compare the authorities cited in W., S '947- 
 
No. 423. SUNDRY APPLICATIONS. 413 
 
 -iFENWICK V. BELL (1845). 
 I C.& K. 313. 
 [Quoted ante. No. 413.]* 
 
 EARL OF THANET'S TRIAL (1799). 
 27 How. St. Tr. 927. 
 Charge that the defendant obstructed the officers and aided O'Con- 
 nor, a prisoner, to escape during his trial; Richard Brinsley Sheridan 
 on the stand for the defence. Mr. Law (afterwards L. C. J. 
 Ellenborough) cross-examining for the prosecution: "My ques- 
 tion is wh^thf rj from what y^n p aw of t\ \ f, coprJurl- nf T nrH T t nnpt -imH 
 
 Mr . i'ergusson, they jiid nnt mcnn to fnvniir the nrnpc nf OTonnnr?" "I 
 will say that I saw nothing that could be auxiliary to that escape." "I 
 ask you again whether you believe [as above] ?" "I have no doubt that 
 they wished he might escape ; but from anything I saw them do, I have 
 no right to conclude that they did." "I will have an answer. I ask 
 you again [as above] ?" "If the learned gentleman thinks he can en- 
 trap me, he will find himself mistaken". Mr. Erskine, for the defence : 
 "It is hardly a legal question". L. C. J. Kenyon : "I think it is not an 
 illegal question." ' ^ 
 
 FISKE V. COWING (1881). 
 61 N. H. 431. 
 Debt. The plaintiii recovered judgment against Milan Harris, A. R. 
 Harris, and S. G. Griffin, who were stockholders in the M. Harris 
 
 Woollen Co., a corporation of which the defendant was treasurer ; 
 
 the execution issued thereon was placed in the hands of the sher- 
 iff for collection, who exhibited it to the defendant at his office in Bos- 
 ton, and at the time gave to him a proper and sufficient written request 
 for a certificate of the number of shares, &c., of* the judgment debtors 
 in the corporation; and the defendant did not then, or ever, furnish 
 such certificate. The defence was, that after giving the written request 
 the sheriff waived or withdrew it. Both the sheriff (produced as a wit- 
 ness by the plaintiff) and the defendant testified fully in respect to all 
 the conversation, facts, and circumstances which took place during their 
 interview. Subject to the plaintiff's exception, the court allowed the 
 following question to be put to the defendant, and his answer to be 
 taken : " Did you, or not, understand from what Mr. Holt [the sher iff] 
 said, and from his conduct, that he waived or withdrew hi s rp gnpst fn r 
 a ce rtificate ? " Ans. "I fully so understood it; that was the reason I 
 toolc no steps towards giving a certificate." . . . 
 
 Smith, J.: "The precise question raised in this case was decided 
 in Eaton v. Rice, 8 N. H. 378, wh ere it was held that a witness mav 
 state generally what he understood a contract between tw o persons to 
 
 4 — Compare the authorities cited in W., § igsi. 
 
414 OPINION RULE. No. 423. 
 
 have bee n from t lieir r.onversatinn , a1tlinnf r1i |],e m a y nnt be able to state 
 tEelanguage usedl n making the agreement. It rarely happens that two 
 -persons are able to^give precisely the same account of a conversation. 
 Their narration will differ more or less according to their intelligence, 
 their interest in the subject-matter, their opportunities for hearing, their 
 prejudices for or against the parties, the lapse of time since the conver- 
 sation occurred, and a variety of other circumstances. Emphasis thrown 
 upon the wrong word might convey a meaning different from that orig- 
 inally intended. Often the manner in which a remark is made, and 
 the conduct and appearance of the party, may have much to do in pro- 
 ducing the understanding that was received, much of which it is diffi- 
 cult and sometimes impossible for a witness to describe. It was a vital 
 qu estion whether the defendant understood or had a right to understand,, 
 "fro m what was said and done, that the request fnr a rertifirate wp^ 
 wa ived or withdra wn. He might have received his understanding in 
 part from Oie conduct of the officer, and in part from what was said 
 between them and from the way it was said. To confine the wit- 
 ness to a mere narration of thq language used, if he were able to recall 
 
 it, mi ght give the jury an i mperf ect and erroneous idea of the actu al 
 understanding of the parties."' ^^<2J^^i^*<-^^.-«- 
 
 ALEXANDER DAVISON'S TRIAL (1808). 
 31 How. St. Tr. 186. 
 The accused, a commissary-general in the army, was charged with 
 fraud in the public accounts; Lord Moira sworn: "Had your lordship 
 [as general-in-command] an opportunity of observing his [the 
 ^^^ accused's] public conduct?" "His conduct was clear and punc- 
 tual, answering every expectation I had formed, strictly delicate in 
 refusing emoluments which he might well have claimed." "From your 
 lordship's general knowledge of his conduct, is he a person whom your 
 lordship would think capable of committing a fraud?" "Certainly not." 
 After an interruption on another point : L. C. J. Ellenborough : "The 
 correct inquiry is as to the general character of the accused, and 
 whether the witness thinks him likely to be guilty of the offence 
 charged in the indictment.'' Sir Andrew Hammond sworn; L. C. J. 
 Ellenborough : "From your knowledge of Mr. Davison's character and 
 conduct, do you think him capable of committing a fraud?" "I should 
 have thought him the last man in the world that would have attempted 
 anything of the kind, or even to have been a cause of it." Mr. James 
 Davidson sworn: "From all that you have observed of him [Mr. D.] 
 and all that you have known and heard of him, what is your opinion 
 of his general character?" "You say 'known and heard'; all that I have 
 known of him is that he has been an honest man, an honest dealer 
 
 5 — Compare the authorities cited in W. Compare also the principle of Com- 
 
 §§ 1963, J969. pleteness, ante^ Nos. 202-204. 
 
No. 425. MORAL CHARACTER. 415 
 
 with me as a merchant." "From what you have heard in the world at 
 large, what is your opinion of him?" "There are a variety of reports 
 concerning Mr. Davison; those I know only as the world knows; but 
 as to his dealings with me, I always found him an honorable and hon- 
 est man." 
 
 R. v. ROWTON (1865). 
 
 Leigh &■ C. 520, 5S2> 539, lo Cox Cr. 25. 
 
 Indecent assault upon a boy; the witness for the prosecution was 
 asked, "What is the defendant's general character for decency and 
 morality of conduct?", and answered: "I know nothing of th e 
 *^* neighborhoo d's opinion, becaus e-I-was-eBly-ar4)ey^-at-sehool-Aadi£n 
 •I knewmm ; but my own opinion_^nd_Jlie--Qpinioa-«f-ffly^r-otJ^ 
 were also pupils o f his is" that his character is th at-o^^ ? "i^" ''rtpsblf nj 
 
 thp grnsspgt in?TprPTi(-yatTfj^Jlip_nTnst flagi"^"! i-mmm-^ly;" T his evi- 
 dence was objected toT" 
 
 — CoGKBURiJ r^rJr (for eleven of the thirteen judges) : ". . . When we 
 consider what, in the strict interpretation of the law, is the limit of 
 such evidence, in my judgment it must be restricted to the man's gen- 
 eral reputation, and must not extend to the individual opinion of the 
 
 witness. ... I am strongl y "f npininn tViat that an»;v^rpr ^v^i^ nr,t ^^. 
 
 missible. As, when a witness is called to speak to the character of the 
 accuse!, he cannot say, T know nothing of his general character, but 
 I have had an opportunity of forming an opinion as to his disposition, 
 and I consider him incapable of committing this offence;' so here, 
 when the witness declar ed that he knew n othing of the general cha r::_ 
 acter of the "accused, but that in his opinion the prisoner's disposition 
 wag ^Uth as tO fnak a It iikbly that he woU lJ CUiii uilL Ihe (Miei ice in 
 Snjesti on, apply ing the same pr iipiplpi tup answer was inadmissihle.."^ 
 iiRLE, l'. J. (dissenting) : "Disposition cannot be ascertained di- 
 rectly; it is only to be ascertained by the opinion formed concerning 
 the man; which must be founded either on personal experience or on 
 the expression of opinion by others, whose opinion again ought to be 
 founded on their personal experience. ... I think that each source of 
 evidence is admissible. You may give in evidence the general rumor 
 prevalent in the prisoner's neighborhood, and, according to my experi- 
 ence, you may have also the personal judgment of those who are ca- 
 pable of forming a more real, substantial, guiding opinion than that 
 which is to be gathered from general rumor. I never saw a witness 
 examined to character without an inquiry being made into his per- 
 sonal means of knowledge of that character. The evidence goes to the 
 jury depending entirely upon the personal experience of the witness 
 who has offered his testimony. Suppose a witness to character were 
 to say : 'This man has been in my employ for twenty years ; I have had 
 experience of his conduct ; but I never heard a human being express 
 an opinion of him in my life ; for my own part, I have always regarded 
 
416 OPINION RULE. No. 425. 
 
 him with the highest esteem and respect, and have had abundant ex- 
 perience that he is one of the worthiest men in the world.' The prin- 
 ciple the Lord Chief Justice has laid down would exclude this evidence, 
 and that is the point where I differ from him. To my mind, personal 
 experience gives cogency to the evidence; whereas such a statement as 
 T have heard some persons speak well of him,' or T have heard 
 general report in favor of the prisoner,' has a very slight effect in com- 
 parison." 
 
 WiLLES, J. (dissenting) : "I apprehend that the man's disposition is 
 the principal matter to be inquired into, and that his reputation is 
 merely accessory, and admissible only as evidence of disposition. . . . 
 The judgment of the particular witness is superior in quality and value 
 to mere rumor. Numerous cases may be put in which a man may have 
 no general character — in the sense of any reputation or rumor about 
 him — at all, and yet may have a good disposition. For instance, he 
 may be of a shy, retiring disposition, and known only to a few; or 
 again, he may be a person of the vilest character and disposition, and 
 yet only his intimates may be able to testify that this is the case. One 
 man may deserve that character [reputation] without having acquired 
 it, which another man may have acquired without deserving it. In 
 such cases the value of the judgment of a man's intimates upon his 
 character becomes manifest. In ordinary life, when we want to know 
 the character of a servant, we apply to his master. A servant may be 
 known to none but members of his master's family; so the character 
 of a child is known only to its parents and teachers, and the character 
 of a man of business to those with whom he deals. . . . According 
 to the experience of mankind, one would ordinarily rely rather on the 
 information and judgment of a man's intimates than on general report; 
 and why not in a court of law? . . . The evidence in this particular 
 case was of a very peculiar character, because the prisoner was charged 
 with an offence which would not only be committed in secret if it 
 were committed at all, but would be likely to be kept secret by the per- 
 sons who were subjected to it. Such being the case, in order to ascer- 
 tain the prisoner's character for morality and decency, the persons of 
 whom you would inquire would be those who had been within reach 
 of his influence — persons who would not be likely to communicate his 
 conduct to the neighborhood or to one another." 
 
 Chief Justice Swift, (Conn.) Evidence, 143 (1810) : "A witness 
 called to impeach or support the general character of another [witness] 
 is not to speak of his private opinion or of particular facts in 
 * his own knowledge; but he must speak of the common reputa- 
 
 tion among his neighbors and acquaintances. The only proper ques- 
 tions to be put to him are, whether he knows the general character of 
 the witness intended to be impeached, in point of truth, among his 
 neighbors? and what that character is, whether good or bad? The wit- 
 ness play be inquired of as to the means and opportunity he has of 
 
No. 427. MORAL CHARACTER ; HANDWRITING. 417 
 
 knowing the character of the witness impeached, — as, how long he has 
 known him, how near he lives to him, and whether his character has 
 been a subject of general conversation; but his testimony must be 
 founded on the common repute and understanding of his acquaintance 
 as to his truth, and not as to honesty or punctuality. In England, [cit- 
 ing 4 Esp. 162,] the first question is, whether the witness impeaching 
 has the means of knowing the general character of the other witness? 
 and from such knowledge of his general character, whether he would 
 believe him on oath?"^ 
 
 Algernon Sidney's Trial, p How. St. Tr. 851, 864 (1683); Mr. 
 Sheppard sworn. Atfy-Gen.: "Pray, will you look upon these writ- 
 ings [shewing the libel]. Are you acquainted with Colonel Sid- 
 *^^ ney's hand?" Sheppard: "Yes, my lord." Att'y-Gen.: "Is that 
 his handwriting?" Sheppard: "Yes, sir; I believe so. I believe all 
 these sheets to be his hand." Att'y-Gen.: "How come you to be ac- 
 quainted with his hand?" Sheppard: "I have seen him write the in- 
 dorsement upon several bills of exchange." Col. Sidney: "My lord, I 
 desire you would please to consider this, that similitude of hands can 
 be no evidence." L. C. J. Jeffries: "Reserve yourself until anon, and 
 make all the advantageous remarks you can." . . . Sidney: "Now, my 
 lord, I am not to give an account of these papers; I do not think they 
 are before you, for there is nothing but the similitude of hands offered 
 for proof. The similitude of hands is nothing; we know that bonds 
 will be counterfeited, so that no man shall know his own hand." 
 
 I — Story, J., in Gass v. Stinson, 2 tion of the witness is 'bad' gives but im- 
 Sumner 610 (1837): "When the examina- perfect information; 'bad* is a relative 
 tion is to general credit, the course in term, and the inquiry at once arises in the 
 England is to ask the question of the wit- mind, 'How bad is it?' Is his reputation 
 nesses whether they would believe the so bad that he ought not to be believed 
 party, sought to be discredited, upon his under oath? The mode of inquiry [thus] 
 oath. With us the more usual course is allowed is only a means of ascertaining 
 to discredit the party by an inquiry what what the reputation of the witness for 
 his general reputation for truth is, wheth- truth really is. The object of the testi- 
 er it is good or whether it is bad." mony is not to introduce as evidence the 
 
 Caton, C. J., in Eason v. Chapman, 21 opinion of the impeaching witness as to 
 111. 35 (1858), (after pointing out that the truthfulness of the witness against 
 persons may have a bad name for truthful- whom he testifies, but to enable the jury 
 ness, and yet "from their daily walk and to ascertain the true character of his repu- 
 conversation in other respects, none would tation for truth as the impeaching wit- 
 doubt their truthfulness when solemnly ness understands it, and thereby enable 
 called to testify in a court of justice") : them to determine the extent to which it 
 "Yet it would be impossible to detail all ought to discredit the witness. The ques- 
 the minutiae of the circumstances which tion would be the same in effect if the wit- 
 would inspire that confidence so as to im- ness were asked if the reputation of the 
 part their full and just impression to the witness in question were such as to go to 
 jury. , . . Hence witnesses, who must his discredit when under oath." 
 be always impressed with these indescrib- Compare the authorities cited in W., 
 able circumstances if they exist, have al- §§ 1983, 1985. 
 
 ■ways been allowed to express the opinion Compare also the rules as to the Kind 
 
 whether they would or not believe the im- of Character (ante, Nos. 115-117), the 
 
 peached witness under oath." mode of proof of Particular Instances of 
 
 Per Curiam, in Jiillis v. Wylie, 26 Oh. Misconduct {ante, Nos. 120-126), and the 
 
 St. 576 (1875): "To say that the reputa- nature of Reputation (.ante, Nos. 319-321). 
 
418 OPINION RULE. No. 428. 
 
 Hales' Trial, ij How. St. Tr. 273 ( 1729) ; forgery of a promissory 
 note. Counsel: "Mr. Lincoln, those receipts which you produced, did 
 Mr. Kinnersley actually write them?" Mr. Lincoln: "I saw 
 *"° him write them all." Counsel: "Shew them to the jury." Reyn- 
 olds, J.: "Gentlemen of the jury, in that book you will find some re- 
 ceipts wrote by Mr. Kjnnersley, which Mr. Lincoln swears are his 
 hand." 
 
 Duncan, J., in Com. v. Smith, 6 S. &• R. 571 (1819) : "Compari- 
 son of handwriting is when other witnesses prove a paper to be the 
 handwriting of a party, and the witness is desired to take the 
 two papers in his hand, compare them, and say whether they are 
 or are not the same writing. There the witness collects all his knowl- 
 edge from comparison only; he knows nothing of himself, he has not 
 seen the party write, nor held any correspondence with him."^ 
 
 DOE dem. MUDD v. SUCKERMORE (1836). 
 5 A.& E. 70s. 
 
 Ejectment for messuages, &c., in Suffolk. On the trial before 
 Vaughan, J., at the Suffolk Spring assizes, 1835, a verdict was found 
 for the defendant. In Easter term, 1835, Storks, Serjt., obtained 
 a rule for a new trial on the ground of an improper rejection of 
 evidence. On this day, cause was shown by Kelly and Gunning; and 
 Storks, Serjt., and Byles, were heard in support of the rule. The Court 
 took time to consider; and in Trinity term, 1837 (June 8th), their 
 Lordships, differing in opinion, delivered judgment seriatim. . . . 
 
 Coleridge, J. : "This was a motion for a new trial, on the ground 
 that evidence had been improperly rejected by my brother Vaughan 
 under the following circumstances. The question in tbp. raiise was 
 I^l^p_f1l1p fyprntinn nf a will ; and the, threp attpsting witnp ssps were. 
 called.^ It was supposed that one of them, Stribling, was deceived in 
 swearing to his own attestation, and that, although he had attested a 
 will for the testator, the document produced was not that will, but a 
 forgery, and that the attestation was in truth a counterfeit. Upon 
 cross-examination, two signatures, purporting to be his, and to have 
 been subscribed to depositions, made by him in proceedings relating to 
 the same will in another court, and also sixteen or eighteen signa- 
 tures, apparently his, pasted on a sheet of pasteboard, were shown to 
 him ; and he said he believed they were all of his handwriting. At the 
 time he gave his evidence, another witness was in court, and, the cause 
 lasting to the second day, was called. He had never seen Stribling 
 write, nor had any other means of acquiring a knowledge of the char- 
 
 2 — Compa"i-e here the other rules as to the The foregoing extracts illustrate the con- 
 
 qualifications of an ordinary witness to trast between the ancient and the modern 
 handwriting, ante, Nos. 83, 84. meanings of "comparison of hands" (W., 
 
 §§ 1991-1994). 
 
No. 430. HANDWRITING, 419 
 
 Ecter of his handwriting, but from an examination of the signatures 
 jso produced: this he had made on the first day, and, from this, he 
 I stated that he thought he had acquired a knowledge of the character 
 /of his handwriting; and he was ask ed whethpr he. helieved the attes ta- 
 \ tion to the willJaJje-ffie^adwriting-of-StribKng. Th is was objected 
 to, and, on ar gument, d etermined Jo, bt inadmissible; in my opinio n, 
 aftennuch^onsideratjon,^ the^esidence- jwas_-propetL)t jxjected. 
 - "ihe rule" as to^roof of handwriting, where the witness has not 
 seen the party write the document in question, may be stated generally 
 thus. /Either the witness has seen the party write on so me former 
 occasions, or he ha s correspon dgjl witVi Viirn^ and transa ctions have taken 
 place b etween them jipon thp faith that letters purporting t" havp h^^n 
 written or signed by hi m have bee n_so_w:rittgn__ or signed. QiL_£ith£r 
 supposition, the witn ess is supposed to have re ceiv ed into his mind 
 aw impiessiuii, iiof~so m uchof th e_mannei^ in whirJLAhe ja!Titer_has 
 fof med t he letters m t He~particul arjiatanaea,. as nf the generalxhar- 
 acter of his handwriting; and he is c alled o n_to_speak_as to th e writ- 
 ing in"-'qUe 5tlon~bv a reference to the standar d so forme d in his mind . 
 It is obvious that the weight of this evidence may vary in every con- 
 ceivable degree; but the principle appears to be sound, both in regard 
 to the test of genuineness, and the acquisition of the means of apply- 
 ing it. The test of gen uinene ss ought to be the resemblarice, not to 
 
 the^jFnrmajjnti nf— tVi e letter f. in _,SQme__n ther sp e ^^jmpn nr spprimen s, 
 
 but to the general _cha r n rtpr of t h e writing , whi^h i s imprpcspd nn ;t 
 
 as the inv2liiTTtar y pnd im i-n nsrinns result nf rnntHtntinn^ hnbit, nr 
 
 Other pe rmanent cause. and _is t^erpfnrp it self permanent. And we 
 best acquire a knowledge of this character by seeing the individual 
 write at times when his manner of writing is not in question, or by 
 engaging with him in correspondence; either supposition giving reason 
 to believe that he writes at the time not constrainedly, but in his natural 
 manner. . . . 
 
 "Upon these grounds directly, I conceive, although not on these 
 alone, our law has not, during a long course of years, permitted hand- 
 writing to be proved by the immediate comparison, by a witness, of the 
 paper in dispute with some other specimen proved to have been written 
 by the supposed writer of the first. . . . Assuming that no dispute exists 
 as to the genuineness of the standard or the fairness with which it has 
 been selected, [still] such a comparison leads to no inference as to the 
 general character of the handwriting. . . . 
 
 "If the points which I have just supposed to be conceded [genuine- 
 ness of specimens and fairness of selection] be brought into question, 
 other and most serious objections arise to this mode of proof. If the 
 genuineness be disputed, a collateral issue is raised, and that upon 
 every paper used as a standard, — an issue, too, in which the proof 
 may be exactly of the same nature as that used in the principal cause, 
 namely, mere comparison; with the additional disadvantages that the 
 former standard is not produced, and that the opposing party can avail 
 
420 OPINION RULE. No. 430. 
 
 himself of no counter-proof. ... If the fairness with which the stand- 
 ard has been selected is disputed, this again must lead to a collateral 
 inquiry, in which the parties meet on unequal terms if no notice has 
 been given (and none is required by our law), and which must tend 
 to distract the jury, if notice be given, and the discussion on the cir- 
 cumstances under which each specimen was written be fully gone 
 into. It must always be borne in mind, in considering the rule of the 
 English law on this subject, that it has reference to a trial by jury, 
 and that we have no provisions for limiting the standard of compari- 
 son or regulating the manner of conducting the inquiry; both of which, 
 it seems, have been found necessary where such a mode of proof has 
 been admitted. 
 
 "Now, in the present case, it must be conceded that the witness had 
 not acquired his knowledge of the character of the handwriting, what- 
 ever it was, in either of the ordinary modes. He had studied certain 
 signatures selected by one party, and had acquired an impression of 
 some general character pervading the whole : he had heard it proved 
 that those were written by the witness Stribling; and, from these ma- 
 terials he was to speak. It is asked, how does this differ from the case 
 of knowledge acquired in the course of a correspondence, where the 
 standard rests equally on the assumption that the letters are written 
 by the party whose they purport to be? With respect to the assump- 
 tion, there will be a fitter place to point out the distinction; but I 
 answer, here, that the two cases differ in that which is essential, in 
 the undesignedness of the one, the fact that the letters are written 
 in the course of business, without reference to their serving as aids 
 ifor a collateral purpose in some future unknown cause; and in the 
 selection which is made in the other by the party to the cause, who 
 seeks to produce them for a particular purpose. I have, therefore, no 
 reasonable assurance that the witness has the materials for ascertain- 
 ing the general character of the handwriting, which is the knowledge 
 to be acquired. . . . Furthermore, as the admissibility of this species 
 of proof cannot depend on the fact of the signatures having been 
 proved by the admission of the writer himself, I would ask, what 
 course is to be pursued where the writing which is to form the standard 
 is itself disputed? Is the counter-evidence to be received at once as to 
 this point; and the opinion of the jury to be taken on the preliminary 
 and collateral issue, before the evidence is heard as to the principal 
 document? Or is that to be gone into after the prima facie proof on 
 the collateral issue, and to be received, subject to being entirely dis- 
 placed by the answer on the other side? Or, lastly, is the judge to 
 decide this question of fact? I believe it impossible to answer these 
 questions without either introducing a most inconvenient novelty in 
 our procedure at Nisi Prius, or involving the jury in a complication 
 of issues from which it is too much to expect that they should escape 
 safely." 
 
 Williams, J.: "The question (important as it is, being connected 
 
^0. 430. HANDWRITING. 4^1 
 
 ■with principles and practice regulating the admissibility of evidence) 
 seems mainly to be reduced to this point, whether the knowledge, which 
 the witness professed to have, was acquired by means prohibited by 
 any known and established rule of law. . . . And the objection is 
 twofold; first, that it was acquired merely by the comparison of writ- 
 ing; and next, that, at all events, it was not acquired by either of the 
 legitimate and recognised modes, already referred to, having seen the 
 party write, or, corresponded with him. 
 
 "As to the first, ... it seems to me that the evidence, so far as this 
 objection is concerned, was admissible, because it was not the com- 
 parison of handwriting, in the proper and ordinary sense of the term. 
 To reject it, because what was equivalent to a comparison of hand- 
 writing took place, would go far, so far as the reason of the thing 
 is concerned, towards disturbing the rule altogether, and letting in a 
 comparison of handwriting as a medium of proof in all cases what- 
 soever, or excluding, in a great degree, all possibility of proof. What 
 is to be said, where the means of knowledge are derived from a by- 
 gone correspondence of considerable standing? What is it but com- 
 paring a distant, and (in proportion to the length of time) faint image 
 in the mind with the writing in question? . . . 
 
 "I come now to consider, whether the witness in this case had any 
 legitimate means of knowledge to authorize the question, the answer 
 to which was rejected. It has been said that the specimens selected 
 may have been garbled and fallacious, 'calculated to serve the purpose 
 of the party producing them, and, therefore, not exhibiting a fair speci- 
 men of the general character of the handwriting.' ... I cannot per- 
 ceive how it can be affirmed that this was a partial selection by those 
 who wished to use the papers. The selection was not depending upon 
 their power merely. The whole was subject to the answer of the 
 ■witness. The papers produced might all have been admitted to be of his 
 handwriting, or one-half, or any other portion of them, or all might 
 have been denied. When the papers were so admitted, was there not 
 then some proof that they were of the witness's handwriting? And, 
 if so, how can the case differ in kind, though it may in amount or de- 
 gree of proof, from the perusal or reperusal of a couple of letters, 
 written, the one ten, the other five, years before? Why may the wit- 
 ness give an opinion of any person's handwriting from a study of such 
 letters? Because the writer has, in some manner, authenticated them 
 to be his. Why might the witness have been asked the proposed ques- 
 tions in this instance? Because the witness had sworn that the papers 
 were of his handwriting. In each case, it is from the perusal of papers 
 (and papers only) that the knowledge is acquired. In each case there 
 is some proof that the papers to be perused, in order to form a judg- 
 ment, are those of the parties respectively, respecting whose hand- 
 writing in the particular case the question and inquiry arise. . . , Any- 
 thing, I presume, from which the identity of the writer is established, 
 may suffice. If then, from such proof, whence a reasonable inference 
 
422 OPINION RULE. No. 430. 
 
 may arise that the letter or signature is by such or such person, an 
 opinion of his handwriting may be given, the question recurs, whether 
 there be not some foundation for opinion, where the party has upon 
 his oath declared that the papers perused by the witness were written 
 by himself. That no person has, hitherto, been allowed to speak of 
 his belief of handwriting, except he has acquired his knowledge by 
 one or other of the prevalent methods (having seen the party write, 
 or received writing from him), may doubtless be true; but it is, I fear, 
 but an imperfect solution of the present difficulty. May not the answer 
 be, that the case is new? In truth, has it ever arisen before? If 
 not, we are called upon, as in the various and ever varying combina- 
 tions of human affairs continually does and must occur, to apply, as 
 well as we can, the principles and analogies having the nearest and 
 most direct affinity to the subject, to this fresh question. . . ." 
 
 Patteson, J. ". . . All evidence of handwriting, except where 
 the witness sees the document written, is in its nature comparison. 
 It is the belief which a witness entertains upon comparing the writing 
 in question with an exemplar in his mind derived from some previous 
 knowledge. That knowledge may have been acquired, either by seeing 
 the party write, in wfiich case it will be stronger or weaker accord- 
 ing to the number of times and periods, and other circumstances under 
 which the witness has seen the party write, but it will be sufficient 
 knowledge to admit the evidence of the witness (however little weight 
 may be attached to it in such cases), even if he has seen him write 
 but once, and then merely signing his surname. ... Or the knowl- 
 edge may have been acquired by the witness having seen letters or 
 other documents professing to be the handwriting of the party, and 
 having afterwards communicated personally with the party upon the 
 contents of those letters or documents, or having otherwise acted upon 
 them by written answers, producing further correspondence, or acquies- 
 cence by the party in some matter to which they relate, or by the wit- 
 ness transacting with the party some business to which they relate, 
 or by any other mode of communication between the party and the 
 witness which, in the ordinary course of the transactions of life, in- 
 duces a reasonable presumption that the letters or documents were the 
 handwriting of the party. ... A third mode is now sought to be intro- 
 duced, namely, by satisfying the witness by some information or evi- 
 dence that a number of papers are in the handwriting of the party, 
 and then desiring him to study those papers, so as to acquire a knowl- 
 edge of the handwriting, and fix an exemplar in his mind, and after- 
 wards putting into his hand the writing in question, and asking his 
 belief respecting it, or by merely putting certain papers into the wit- 
 ness's hands, without telling him who wrote them, and desiring him 
 to study them, and acquire a knowledge of the handwriting, and after- 
 wards showing him the writing in question, and asking his belief 
 whether they are written by the same person, and calling evidence to 
 prove to the jury that the former are the handwriting of the party. 
 
No. 431. HANDWRITING. 423 
 
 which perhaps may be considered as the same process in effect, ex- 
 pressed in other words. The very foundation of this mode is the 
 establishment of the fact that the papers, from studying which the 
 witness is to acquire his knowledge, are the handwriting of the party. 
 Now that fact must be estabhshed, either by the acknowledgment 
 of the party, or by the information of third persons. 
 
 "Assuming the witness to be the only person to be satisfied of the 
 fact, it is obvious that the acknowledgment of the party, if the wit- 
 ness be called to affirm the handwriting, would be a most unsafe 
 ground on which to act, and was so considered by Lord Kenyon in 
 Stranger v. Searle, i Esp. 14; and, if the witness be called to disaffirm 
 the handwriting, the acknowledgment of the party, unless he be a 
 party to the suit, ought not to bind the litigants; and, if he be a 
 party to the suit, it may fairly be urged that the case would come 
 within the second mode of acquiring knowledge above suggested, 
 namely, by a direct communication with the party. The other 
 mode of satisfying the witness, viz. by the information of third per- 
 sons, is equally open to objection, as it must be given behind the back 
 of one or both of the litigant parties, and would obviously be most 
 unsafe and unfair. 
 
 "The jury, therefore, must be satisfied of the fact. Now that must 
 be by evidence, and will raise a number of collateral issues, foreign to 
 those on the record, and for which one of the litigants must of neces- 
 sity be wholly unprepared, in addition to the danger of unfair selec- 
 tion by the other litigant who produces the papers. I need hardly 
 advert to the great inconvenience and waste of time which will be in- 
 curred by such a wide range of collateral matter, nor to the observation 
 that the proof of the papers in those collateral issues might be by call- 
 ing a witness who had acquired his knowledge of the handwriting in 
 the very same way from other papers, which would equally require 
 to be proved; and so it is obvious that the same process, as is now 
 attempted, might be repeated ad infinitum, and lead to no conclusion. 
 But if the proof of the papers in those collateral issues be by calling wit- 
 nesses who have acquired their knowledge of the handwriting by either of 
 the two modes which I consider to be the only legitimate modes, those 
 witnesses must, from the nature of their evidence, be much more com- 
 petent to form an opinion as to the handwriting in question in the cause, 
 than the witness whose evidence is proposed to be introduced by such 
 a process."' 
 
 DOE dem. PERRY v. NEWTON (1836). 
 I Nev. & P. I. 
 Ejectment for land in Cumberland. At the trial before Coleridge, 
 J., at the last assizes at Carlisle, it appeared that this action was 
 brought by the heir at law of one Brockbank against the defend- 
 ants, who claimed as devisees under the will of the same indi- 
 vidual. In February last the testator died, as was supposed intestate. 
 
 3 — Compare the authorities cited in W., § 2016. 
 
424 OPINION RULE. No. 431. 
 
 Some weeks afterwards, in removing the bed in which he had died, 
 a document was found, which the defendants alleged to be his will. 
 The question at the trial, was, as to the genuineness of this document. 
 It was dated in 1833, ^iid was witnessed by three persons, all of 
 whom were dead at the time of the discovery of the will; and it was 
 not known by whom it had been written. Evidence was given, on the 
 part of the defendants, of belief in the handwriting of the testator and 
 attesting witnesses. On cross-examination the same persons proved 
 that various letters produced to them by the plaintiff's counsel, and pur- 
 porting to be letters written and signed by the testator and two of the 
 persons attesting the will, were respectively in their handwriting. On 
 the part of the plaintiff witnesses were afterwards called, who negatived, 
 according to their belief, the alleged handwriting of the testator and 
 attesting witnesses; and it was then proposed to give in evidence 
 the before-mentioned letters, proved to have been undoubtedly writ- 
 ten by the testator and witnesses respectively, in order that the jury 
 might compare the handwriting contained in those letters with the sig- 
 natures to the will, and thus detect an alleged dissimilarity between 
 such letters and signatures. This evidence was rejected by the learned 
 judge. A verdict was found for the defendants. 
 
 Alexander now moved for a rule nisi for a new trial, on the ground 
 that this proof had been improperly rejected. "The general rule of 
 evidence on this subject is stated to be, that handwriting cannot be 
 proved by a comparison of the paper in dispute with any other papers, 
 although acknowledged to be genuine. The generality of the propo- 
 sition was, however, limited by Griffith v. Williams.^ In that case the 
 Court of Exchequer held, that the rule does not apply where the writ- 
 ing acknowledged to be genuine is already in evidence in the cause, 
 and that in such case the jury may compare the two documents. Nor 
 ■was this the earliest decision • upon the point ; for in Allesbrook v. 
 Roach,^ not noticed in the last-cited case. Lord Kenyon allowed the 
 signature of the defendant to several bills of exchange to be compared 
 by the jury with his alleged signature to the bill on which that action 
 -was brought. The bills there allowed to be made the subject of com- 
 parison were no more connected with the matter in dispute than the 
 letters proposed to be given in evidence in the present action. . . . 
 The question therefore will be, the propriety of such a limitation. 
 Two reasons have been assigned in its support: first, that the jury may 
 be wholly illiterate, and unable therefore to institute the comparison; 
 the second, that the party interested has it in his power to select, and 
 probably will select, out of a number of documents, such only as suit 
 his purpose, and will keep back the rest. The first reason, however 
 applicable at former times, will scarcely have any weight at the present 
 day. The second would apply with equal stringency to cases of 
 ancient documents, which are undoubtedly proveable by a comparison 
 of handwriting, and yet in such cases the interested party possesses 
 
 I— I C. & I. 47. 2—1 Esp. 351. 
 
No. 431, HANDWRITING. 425 
 
 the same power of producing or keeping back any specimens he may 
 deem favourable or otherwise to his view of the case. Such a course 
 of proceeding is open to inquiry and observation, and affords a test, 
 rather for the value, than for the admissibility, of this description 
 of evidence. It is difficult to see on what solid grounds the distinction 
 can rest between the admissibility of documents already in evidence 
 in the cause, and those offered for the purpose of comparison. Both 
 are avowedly in the handwriting of the party; and the question being 
 the genuineness of the alleged writing, they afford an equal criterion." 
 
 Lord Denman, C, J.: "I think that we ought not to raise anyi 
 doubt on this subject. Griffith v. Williams was supposed to go a long 
 way when it established the right, on the part of a jury, to take other 
 papers, already in evidence, and compare them with the questionable 
 one, for the purpose of coming to a conclusion, from the comparison, 
 whether that questionable one was genuine. The real ground, on 
 which that case stands, is, that comparison in such a case is unavoid- 
 able. When two documents are placed before a jury, one of which 
 is in question, and the other is clearly known to be the handwriting 
 of the party, no human power can prevent the jury from forming 
 some opinion whether those two were written by the same person; 
 and consequently when such is the case, and the mind of the jury 
 must be so employed, it is better for the Court to enter into the con- 
 sideration, and to direct any observations that may occur as to the 
 value of such evidence. I own I do not find it easy to reconcile what 
 I have now said with what passed before Lord Kenyon in the case of 
 Allesbrook v. Roach. What was done in that case is not consistent 
 with the uniform practice of Westminster Hall. ... It is, in my opin- 
 ion, infinitely safer and better to abide by the rule which has existed 
 up to the present time, that evidence of handwriting by comparison 
 is inadmissible, except in cases where it is unavoidable. Considering 
 the consequences that might arise in criminal cases, that a party might 
 be convicted on such a mere conjecture and surmise as the appearance 
 handwriting would present, we cannot, I think, be too cautious in ex- 
 tending the rule." . . . 
 
 Coleridge, J. : "I am of the same opinion. I only wish to say a 
 word in respect to that instance on which Mr. Alexander relied with 
 respect to ancient handwriting. ... I have always understood that 
 to be an excepted case ; but that exception has been founded on the 
 same principle which justifies it in others. The exception is of neces- 
 sity; the handwriting cannot be proved in any other way. Doubtless 
 it is less open than modern writing would be to the objection that the 
 selection may be an unfair one. 
 
 "I will add another reason why I think the evidence was properly 
 rejected, — ^that many irrelevant issues would be thereby raised. It is 
 all very well if the jury are to look only at the documents that are 
 otherwise in evidence in the cause. Whether those documents are 
 or are not in the handwriting of the party, must be proved in the 
 
426 OPINION RULE. No. 431. 
 
 course of the case. If the rule is extended to documents that have 
 nothing to do with the matter in dispute, on every one of those an 
 issue is raised quite irrelevant to the main point; with this additional 
 objection to be made to it, that the other party cannot know what docu- 
 ments are going to be produced, and does not come prepared to answer 
 inferences arising from their production. This seems an additional 
 reason why the rule should be narrowed." . . 
 
 Lord Denman, C. J. : "My brother Coleridge's observation is a 
 striking one. Each letter produced might raise a separate issue."* 
 
 UNIVERSITY OF ILLINOIS v. SPALDING (1900). 
 ri N. H. 163, 51, Atl. 731. 
 Action against Solomon Spalding, as surety on a bond given by 
 Charles W. Spalding. Verdict for the defendant. The defense was 
 that after the bond was signed, and before it was delivered to 
 the plaintiffs, the name of one surety was erased and another 
 written over it, and that the appearance of the signatures was such 
 ithat ordinary care would have disclosed the erasure and substitution 
 to the plaintiffs before acceptance of the bond. An enlarged photo- 
 graphic copy presented faint lines of the writing alleged to have been 
 erased. The plaintiffs claimed that the erasure was of a part of the 
 defendant's name accidentally written by him upon the line below his 
 full signature, while the defendant denied that the words erased were 
 in his handwriting. For the purpose of comparison the defendant 
 introduced in evidence his signatures written upon stock certificates, 
 and sworn to be genuine by him and by the treasurer of the corpora- 
 tion. The plaintiffs excepted to this evidence on the ground that the 
 signatures were neither admitted to be genuine, nor found in papers 
 otherwise in the case, and, further, that they appeared to have been 
 written at a date subsequent to the execution of the bond. . . . 
 
 Remick, J. : "The exception next considered presents the question 
 whether signatures of the defendant on papers otherwise irrelevant, 
 and not admitted to be genuine, were admissible for the mere purpose 
 of comparison with the signature in dispute. By the general rule of 
 the common law, comparison by juxtaposition was limited to the writ- 
 ing in issue and writings in the case for other purposes. The intro- 
 duction of writings, otherwise irrelevant, for the mere purpose of com- 
 parison, was permitted only when the writing in issue was so ancient 
 as not to admit of proof based on knowledge derived from seeing the 
 party write, or its equivalent. . . . While the law remains in the con- 
 flicting and inconclusive shape disclosed by the foregoing review of 
 the authorities, confusion and controversy are inevitable. Consistency 
 and eificiency alike require a definite rule, authoritatively declared. In 
 this view, we have re-examined the question, both from the point of 
 reason and authority. 
 
 4 — Compare the authorities cited in W., I 2008. 
 
INo. 432. HANDWRITING. 427 
 
 "It may be safely stated as a fundamental proposition that, on the 
 question whether a given signature is in the handwriting of a particu- 
 lar person, comparison of the disputed signature with other writings 
 ■of that person known to be genuine is a rational method of investi- 
 gation, and that similarities and dissimilarities disclosed are probative, 
 and as satisfactory in the instinctive search for truth as opinion formed 
 by the unquestioned method of comparing the signature with 
 an exemplar of the person's handwriting, existing in the mind, and 
 •derived from direct acquaintance, however little, with the party's hand- 
 writing. The objections upon which the common-law rule of exclusion 
 is founded are threefold: (i) Ignorance of jurors, and their inability 
 to make intelligent comparison; (2) danger of unfairness and fraud 
 in the selection of specimens, with no sufficient opportunity for the 
 opposing party to investigate and expose; (3) collateral issues to the 
 genuineness of specimens presented. 
 
 "(i) The first objection, however justified by the state of Eng- 
 lish society when it was originally announced, has no weight at the 
 present time in a jurisdiction where intelligence and education are gen- 
 eral, and needs no further comment. (2) Since the right to produce 
 specimens under a rule allowing a comparison is equally open to both 
 parties, and the specimens are all subject io examination and cross- 
 examination, the opportunity for advantage from unfair selections is 
 too slight to furnish reason for closing the door against this impor- 
 tant avenue of investigation. (3) The third objection — that to permit 
 ■comparison with specimens not otherwise in evidence, and admitted 
 for the mere purpose of comparison, would introduce collateral issues, 
 and confuse and distract the jury — is, when applied to specimens 
 neither admitted by the parties nor found by the Court to be genuine, 
 firmly grounded in reason and authority. The whole doctrine of com- 
 parison presupposes the existence of genuine standards. Comparison 
 of a disputed signature in issue with disputed specimens would not 
 be comparison, in any proper sense. When the identity of anything 
 is fully and certainly established, you may compare other things with 
 it which are doubtful, to assert in whether they belong to the same 
 class or not; but, when both are doubtful and uncertain, comparison 
 is not only useless as to any certain result, but clearly dangerous, and 
 more likely to bewilder than to instruct a jury. If disputed signatures 
 "were admissible for the purpose of comparison, a collateral inquiry 
 would be raised as to each standard; and the proof upon this inquiry 
 would be comparison again, which would only lead to an endless series 
 of issues, each more unsatisfactory than the first, and the case would 
 thus be filled with issues aside from the real question before the jury. 
 . . . The true rule is that, when a writing in issue is claimed on the 
 one hand and denied on the other to be the writing of a particular 
 person, any other writing may be admitted in evidence for the mere 
 purpose of comparison with the writing in dispute, whether the latter 
 is susceptible of or supported by direct proof or not; but, before any 
 
428 OPINION RULE. No. 432. 
 
 such writing shall be admissible for such purpose, its genuineness must 
 be found as a preliminary fact by the presiding judge, upon clear and 
 undoubted evidence. This involves, indeed, a marked departure from 
 the common law. It does away with the common-law limitation of 
 comparison to standards otherwise in the case, and hence with its 
 exceptions, and the controversy and confusion which have grown out 
 of them. ... In some States, as already shown, legislation has been 
 deemed essential to bring about such changes; but in others, as we 
 have also shown, the same result has been accomplished by judicial 
 action. As the common-law rule was based primarily upon the assumed 
 incapacity of jurors to make intelligent comparison, such judicial action 
 would seem warranted under the power to adapt the common law to 
 new conditions. The value of comparison as a method of proof being 
 now generally conceded, juries being no longer too ignorant to derive 
 benefit from that source, and the danger of spurious specimens and 
 the objections to collateral issues being fully met by requiring the 
 genuineness of the standard to be determined as a preliminary fact 
 by the trial judge, there remains, it would seem, no satisfactory reason 
 for the old limitations and exceptions. And it is fair to assume that, 
 had no statute been enacted, the common law of England, adjusting 
 itself to changed conditions, would now accord with the rule we have 
 announced. Such a tendency was indicated by the discussion and de- 
 cision in [Doe d.] Mudd v. Suckermore, which was so soon followed 
 by the act of Parliament referred to. In any event, the essential prin- 
 ciple of the common law is preserved, and the dangers and objections 
 against which it was aimed met, by requiring the genuineness of the 
 standard to be found by the Court as a preliminary fact, upon clear 
 and positive testimony." 
 
 Statutes: England, 1854, Common Law Procedure Act, 17 & iS 
 iVict. c. 125, §27: "Comparison of a disputed writing with any writ- 
 ing proved to the satisfaction of the judge to be genuine shall 
 * be permitted to be made ~by, witnesses ; and such writings, and 
 
 the evidwice of witnesses respecting' the same, may be submitted t& 
 the Court anJ~jury as evidence of the genuineness, or otherwise, ot 
 the writing in dispute." 
 
 California, C. C. P. 1872, § 1944 : "Evidence respecting the hand- 
 writing may also be given by a comparison made by the witness or by 
 the jury, with writings admitted or treated as genuine by the party 
 ^gainst whom the evidence is offered, or proved to be genuine to the 
 satisfaction of the judge." 
 
 New York, Laws 1880, c. 36, § i ; Laws 1888, c. 555 : "Compari- 
 son of a disputed writing, with any writing proved to the satisfaction 
 of the Court to be genuine, shall be permitted to be made by witnesses 
 in all trials and proceedings, and such writings and the evidence of 
 witnesses respecting the same may be submitted to the Court and jury 
 as evidence of the genuineness, or otherwise, of the writing in dispute." 
 
No. 434. HANDWRITING. 429 
 
 §2 (amendment of i888) same for the first eighteen words; then 
 "handwriting of any person claimed on the trial to have made or exe- 
 cuted the disputed instrument or writing, shall be permitted and sub- 
 mitted to the Court and jury in like manner." 
 
 History of the Law in the iSoos."- "(A) Classes of Witnesses. 
 What we have as the iSoos came in (the time when reasons and 
 principles for the rules of evidence began much to be thought 
 * * about) is (i) the acceptance of witnesses who had seen the per- 
 son write; (2) the acceptance of witnesses who had received writings 
 subsequently treated by him as genuine or who had had the custody of 
 ancient documents of the same person's; (3) the permission, for such 
 persons, equally of merely examining the disputed writing and of 
 bringing into court the specimens they knew and juxtaposing them; 
 (4) the exclusion of any other mode of testimony under the condemna- 
 tory phrase 'comparison of hands.' The other kinds of witnesses that 
 were thus excluded would be (a) an ordinary witness who knew noth- 
 ing about the handwriting but merely juxtaposed specimens and com- 
 pared; (6) the same testimony by one skilled in handwriting gen- 
 erally. 
 
 "(o) Now the former was of course barred absolutely by the 
 Opinion rule, well expounded in this connection in the following pas- 
 sage: 
 
 1770, Yates, J., in Brookbard v. Woodley, Peake N. P. 21, note: 
 'Where it is merely opinion on similitude of the writing collected from 
 barely comparing them, the jury may compare them as well as any- 
 body else, and any two people may think differently.' 
 
 "(&) The other kind of testimony thus excluded was that of 
 experts speaking from juxtaposition. This it was now strenuously 
 sought to introduce. It is no matter of surprise that the judges in 
 stinctively hesitated; for the idea of expertism in handwriting was 
 then a novel one. But the significant circumstance is that those who 
 tried to use this kind of testimony were obliged to strive to remove 
 from it the stigma of being 'comparison of hands.' They failed for 
 a long time to introduce the new kind of testimony, and the Legis- 
 lature had finally to step in with its aid. But the result of the dis- 
 cussion was that the stigmatized 'comparison of hands' now obtained 
 definitely a narrow meaning; it covered the testimony of all witnesses 
 whose knowledge was acquired solely by examination of specimens 
 for the purpose of the trial; it no longer applied to witnesses who had 
 gained a knowledge by seeing the person write or by receiving cor- 
 respondence or the like. . . . 
 
 "(B) Submission of Specimens to the Jury. There is, of course, 
 a sole remaining way of attempting to prove the genuineness of hand- 
 writing, viz., without asking the opinion of any witness, to lay before 
 the jury some specimens of the writing of the person in question. 
 
 I — Quoted from W., % 1993. 
 
430 OPINION RULE. No. 434. 
 
 In the early practice before 1800 there was no objection to the jury's 
 examination purely as such. The witness who had seen the person 
 write (or later, had received papers, or possessed old documents learned 
 to be genuine) might bring the writing in, if he had it, and the jury 
 would incidentally look at it. Thus the stigma of 'comparison of hands' 
 was not applicable to the fact of the jury's examination as such; the 
 struggle was against the use of a certain kind of witness, not against 
 what he did if admitted. There were towards the end of the 1700s 
 only two kinds of witnesses — those who had seen the person write, 
 and those who had held correspondence or possessed ancient documents 
 — and it seems entirely clear that not only could these witnesses bring 
 in and compare the specimens they had, but the specimens could be 
 laid before the jury for their inspection. But now the controversy 
 (above mentioned) over expert testimony by juxtaposition was in full 
 array; the new and narrow sense of the stigmatized 'comparison of 
 hands' naturally associated itself with any and every process of 'com- 
 parison' or manual juxtaposition ; and doubts about the propriety of 
 the time-honored inspection by the jury thus arose. It is possible that 
 the old practice of handing to the jury all specimens brought in by 
 witnesses who had seen the person write persisted for some time into 
 the 1800S. But the Court of Exchequer, in 1830, and the King's Bench, 
 in 1836, after canvassing the whole subject from the point of view of 
 policy, put a limitation upon the practice — confining it to documents 
 already in the case — , which remained the law, until the Common Law 
 Procedure Act of 1854 speedily reverted to the early tradition, and 
 substituted its more satisfactory rule. 
 
 "If the foregoing exposition has been clear, we may understand 
 (i) that the classes of witnesses who may testify to handwriting have 
 increased in number by successive enlargements ; (2) that the whole 
 meaning of 'comparison of hands' has changed; (3) that the mere 
 process of juxtaposition coram judicio, whether for witness or for jury, 
 ■was historically orthodox and unquestionable; and (4) that the oppo- 
 site fates at common law of juxtaposition by experts and juxtaposition 
 "by jury — exclusion for the former, but limited sanction for the latter 
 — were due simply to the fact that the former had never been at- 
 tempted till the 1800S and was merely prevented from coming into 
 existence, while the latter had always existed and was thus able to 
 survive the attempts on its life." 
 
 HOAG V. WRIGHT (1903). 
 ir4 N. Y. 36, 66 N. E. 5^p. 
 Per Curiam : "The plaintifif is the son and sole surviving descend- 
 ant of the defendants' testatrix, Hester Hoag, who died on the isth 
 of February, 1895, in the eighty-first year of her age. The 
 *** action is upon two promissory notes — one for $2,000, dated Oc- 
 tober 16, 1890, payable to the order of the plaintifif; and the other 
 for $4,000, dated November 13, 1894, payable to the plaintiff — without 
 
No. 435. HANDWRITING. 431 
 
 -words of negotiability. The complaint is in the usual form, and by 
 their answer the defendants denied the making and delivery of both 
 notes, and alleged that, if made or delivered, they were without con- 
 sideration. . . . 
 
 "Experts were called by both parties to give their opinions as to 
 the genuineness of the signatures to the notes after comparing them 
 with the indorsement of the decedent upon certain checks read in evi- 
 dence as standards of comparison. Upon the cross-examination of 
 an expert named Reed, called by the plaintiff, it appeared that during 
 his testimony upon a previous trial of this action he had been shown 
 two papers so folded as to disclose only what purported to be the 
 signature of the decedent upon each. He testified, in substance, that 
 upon the other trial, after comparing these signatures with the stand- 
 ards in evidence, he had pronounced them genuine, and had sworn 
 that all were written by the same hand. Each of the papers, when 
 unfolded, was a total blank, and the signatures were obviously spuri- 
 ous. The witness was thus compelled to admit that he had been mis- 
 taken in his opinion as an expert, upon the previous trial, in relation 
 to the signature of the decedent, and had testified that the spurious 
 signatures were genuine. After this witness had left the stand, an- 
 other expert was called by the plaintiff, who, also testifying by com- 
 parison, stated that the signature to the notes were genuine. Upon 
 cross-examination an effort was made by the defendants' counsel to 
 show that he had made the same mistake upon the previous trial as 
 Mr. Reed. For this purpose he was shown the two papers, folded so 
 as to expose only the spurious signatures, and was asked if he remem- 
 bered that these signatures had been shown him on the former trial. 
 The counsel for the plaintiff objected to 'showing the witness any 
 papers which are not in evidence.' The Court thereupon said: 'The 
 objection is sustained. I think it is incompetent. On reflection, I will 
 strike it out.' . . . 
 
 "The evidence stricken out in this case was not only competent and 
 material, but was of decided value, and might have turned the scale 
 toward the defendants upon an issue so closely contested. It tended 
 to cast doubt upon the credibility of the witness and his skill as an 
 expert. It suggested the question whether, if the witness was at 
 fault as to the spurious signatures, he was not at fault as to the signa- 
 tures in question. It made a direct attack upon the value of his opin- 
 ion. . . . Owing to the dangerous nature of expert evidence, and the 
 necessity of testing it in the most thorough manner in order to pre- 
 vent injustice, we are disposed to go farther, and to hold that, where 
 a witness makes a mistake in his effort to distinguish spurious from 
 genuine signatures, and he does not acknowledge his error, it may be 
 shown by other testimony. The test sought to be applied in this case 
 ■was one of the most practical and conclusive that can be employed to 
 determine whether the witness is really an expert or not. It bears 
 not only upon his competency to express an opinion, but upon the 
 
432 OPINION RULE. No. 435. 
 
 value of his opinion when expressed. . . . The good sense of the trial 
 judge will confine it within proper bounds, and prevent an unnecessary 
 consumption of time. It is better to take a little time to see whether 
 the opinion of the witness is worth anything, rather than to hazard 
 life, liberty, or property upon an opinion that is worth nothing. The 
 evils and injustice arising from the use and abuse of opinion evidence 
 in relation to handwriting are so grave that we feel compelled to 
 depart from our own precedents to some extent, and to establish fur- 
 ther safeguards for the protection of the public. As to the hostility of 
 witnesses to a party may be shown as an independent fact, although 
 it protracts the trial by introducing a new issue, so, as we think, the 
 incompetency of a professed expert may be shown in the same way 
 and for the same reason; that is, because it demonstrates that testi- 
 mony, otherwise persuasive, cannot be relied upon."^ 
 
 3. HYPOTHETICAL QUESTIONS. 
 
 KEMPSEY V. McGINNISS (1870). 
 21 Mich. 123, 141. 
 
 The testimony offered in this case has been set forth ante. No. 418. 
 
 Christian CY, J.: "No controversy arises upon the questions touch- 
 ing mental capacity put to any one of the witnesses testifying 
 **" from their personal observation alone. But the contestants of- 
 fered^ in evidence the opinions of several professional witnesses who 
 had not seen the testator during his illness; and upon the proper mode 
 of conducting such an examination some of the main questions in the 
 case arise. We consider it too well settled to require the citation of 
 authorities, that, upon questions of this kind, the opinions of men 
 skilled in that particular science, in other words, physicians, are ad- 
 missible in evidence, though not founded upon their own personal ob- 
 servation of the facts of the particular case. 
 
 "But in the case of such professional witnesses, as well as in 
 that of unprofessional witnesses — who are allowed to give their opin- 
 ions only from personal observation — ^the facts upon which the opinion 
 is founded must be stated, and the jury must be left to determme 
 whether the facts stated, as well as the opinions based upon them, are 
 true or false. And it is obvious that when such opinions are given 
 without personal knowledge or observation, such opinions must be based 
 either upon facts observed and stated by other witnesses who knew 
 them, or upon a state of facts assumed for the purpose as a hypothetical 
 case, which the jury may find from the evidence. But as the jury are 
 to pass upon the credibility of all witnesses and the weight of the evi- 
 dence, and to determine all matters of fact involved in the case, no 
 witness can have the right to usurp the power of the jury, or to deter- 
 
 I — Compare the authorities cited in W., §2015. 
 
No. 436. HYPOTHETICAL QUESTIONS. 433 
 
 mine any of these questions for them, nor even to give an opinion upon 
 the weight or credibility of any of the testimony. No question, there- 
 fore, can be put to the witness which calls upon or allows him to decide 
 upon the truth or falsehood of any evidence in the case. If, therefore, 
 there be any conflict between the witnesses as to the facts upon which 
 a professional opinion is sought, it is manifest the professional witness 
 cannot, though he has heard the testimony, be asked to base his opinion 
 iipon that testimony, upon the hypothesis of its truth ; because, to reach 
 his conclusion, he must necessarily pass upon the credibility of the wit- 
 nesses and the weight of the evidence. In the case of any such con- 
 flict, therefore, the only proper mode of interrogating the professional 
 witness, is by stating and enumerating in the question itself, the facts 
 to be assumed. And when his opinion is asked upon a case (such as 
 the physical or mental effects of a disease upon a certain person, under 
 certain circumstances and exhibiting certain symptoms), as stated by 
 other witnesses, when there is no conflict, he is to assume, without un- 
 dertaking to decide, the truth of their statements, and to base his 
 opinion only upon the facts thus assumed, leaving the jury to deter- 
 mine whether such assumed acts are true or false. 
 
 "Now, it is manifest that this is but giving an opinion upon a 
 hypothetical case, as much as if the facts testified to by the 
 other witnesses had been expressly and hypothetically assumed 
 and enumerated in the question itself. And it would seem, from the 
 nature of the case, to be impracticable to frame any proper question 
 for eliciting an opinion, which is not in the nature of a hypothetical 
 case, being based upon an assumed state of facts which the jury 
 may, or may not, find to be true. And as a collection of state of facts 
 assumed, whether few or many, constitute in the aggregate the basis 
 on which the opinion is asked, if it does not appear that the opinion 
 would be the same with any of those facts omitted, it necessarily fol- 
 lows that if the jury should negative or fail to find any one of the 
 assumed facts, the opinion expressed cannot be treated as evidence, 
 but must be rejected by the jury. 
 
 "From these considerations it necessarily follows that the jury 
 should know just what facts are assumed and enter into the collec- 
 tion or state of facts upon which the witnesses opinions are based, 
 otherwise they cannot know whether they ought to treat the opinions 
 as evidence at all, since they can form no opinion whether such 
 assumed facts, or the opinions based upon them, are true or false. . . . 
 If one or more witnesses have stated, in the presence and hearing of 
 the professional witness, the facts observed (such as the symptoms of 
 -the person in question, and has various physical and mental manifesta- 
 tions), and the witness is asked his opinion upon the hypothesis that 
 ull the facts stated by the witness or witnesses named are true, the 
 jury, having heard all the evidence alluded to, know that facts are 
 assumed by the witness in giving his opinion. But if the witness be 
 asked his opinion of a case assuming the testimony of certain specified 
 
434 
 
 OPINION RULE. 
 
 No. 436. 
 
 witnesses to be true, and it appears that he did not hear the whole of 
 their testimony, and it does not definitely appear what facts stated by 
 them he has heard, and what he did not hear, the jury cannot know 
 upon what state of facts he forms his opinion, nor whether the facts 
 he has assumed are true, nor whether his opinion would have been 
 the same if he had heard the whole ; . . . and his opinion cannot, there- 
 fore, safely be received in evidence. This disposes of two questions 
 put to Dr. Mottram, the rejection of which was excepted to by the 
 contestant; both of which were based upon the assumed truth of the 
 testimony of Eckard and Dr. Abbott. It appears from the statement 
 of Dr. Mottram himself that he did not hear the whole of Eckard's 
 testimony, and it does not appear what particular facts stated by him 
 he did, and what he did not hear."^ 
 
 BELLEFONTAINE & INDIANA R. CO. v. BAILEY (i860). 
 
 II Oh. St. 333, 337. 
 
 Brinkerhoff, J.: "Peter Bailey brought this action against the 
 
 Bellefontaine and Indiana Railroad Company, before a justice of the 
 
 peace of Darke county, to recover damages for the killing 01 
 
 ^*** his two horses, through the carelessness and negligence of the 
 
 employees of the railroad company in running their locomotive and 
 
 2 — M'Naghten's Case, lo CI. & F. 207 
 (1843). Question for the Judges: "Can 
 a medical man conversant with the disease 
 of insanity, who never saw the prisoner 
 previously to the trial, but who was pres- 
 ent during the whole trial and the exami- 
 nation of the witnesses, be asked his opin- 
 ion as to the state of the prisoner's mind 
 at the time of the commission of the al- 
 leged crime, etc.?" Maule, J.: "In prin- 
 ciple it is open to this objection, that 
 as the opinion of the witness is founded 
 on those conclusions of fact which he 
 forms from the evidence, and as it does 
 not appear what these conclusions are, it 
 may be that the evidence he gives is on 
 such an assumption of facts as makes it 
 irrelevant to the inquiry." 
 
 Dean, J., in Lake v. People, i Park. Cr. 
 C. 557 (1854): "A question in physical 
 science will afford an illustration. A mo- 
 tion which is the result of a combination 
 of different forces invariably changes its 
 direction if but one of the moving powers 
 is withdrawn. Take away half of them, it 
 would be reversed in its course. Experts 
 might be called to prove any given mo- 
 tion; they might also be asked what would 
 be the effect of certain combined forces; 
 but in either case it is manifest that to 
 have the opinion correct, all of the motive 
 powers must be given. ... To allow 
 [medical testimony to be given on merely 
 such part of the evidence as they heard] 
 would be as dangerous a principle as to 
 
 permit a juror to sit during a part of the 
 trial and then unite with the rest in ren- 
 dering a verdict." 
 
 Morris, C, in Burns v. BarenHeld, 84 
 Ind. 48 (1882); ii medical witness was 
 asked what he thought of a certain kind 
 of treatment, after examining a case: 
 "The answer of the witness was not based 
 upon facts stated by him. What he knew 
 about the case might and doubtless did em- 
 brace much more than he had stated to the 
 jury; how much or what he knew about 
 the case was in a great measure unknown 
 to the Court and the jury. It is the clear 
 right and duty of the jury to judge of the 
 truth of the facts upon which the opinion 
 of the expert is based. If his opinion is 
 based upon what he may suppose he knows 
 about the case — upon facts, it may be, al- 
 though irrelevant and unknown to the jury 
 — it would be impossible for them to pass 
 upon the truth of the facts upon which 
 the opinion may be based, or to apply the 
 opinion of the expert to the facts. . . . 
 The expert's memory might be deficient in 
 recollecting all the facts testified to ; he 
 might have a different understanding of or 
 place a different construction upon the lan- 
 guage used by the witness or witnesses- 
 upon whose testimony he based his opin- 
 ion from what the jury would have or 
 place if they were informed upon what 
 facts testified to the opinion was based." 
 
 Compare the authorities cited in W., 
 §§ 676, 681. 
 
No. 437. HYPOTHETICAL QUESTIONS. 435 
 
 cars. . . . The company answered simply denying the negligence 
 charged. ... On the trial of the case in the common pleas, it ap- 
 peared from a bill of exceptions embodied in the record, that the 
 defendant, to maintain the issue joined on its part, called to the stand, 
 as a witness, Aloah Skilton, who testified that he was acting as loco- 
 motive engineer on the train which killed the horses for which the 
 action was brought, at the time of said killing, and saw said horses in 
 the act of coming upon the railroad track; that he was acquainted with 
 the business of running railroad engines and trains, and had been 
 engaged in the business for the last five years. The defendants' coun- 
 sel then asked said witness his opinion as to the possibility of avoiding 
 the injury to the said horses, in view of the distance between the train 
 and the plaintiff's horses when the latter came upon the railroad track? 
 To which question the plaintiff objected; which objection the Court 
 sustained, and refused to allow the question to be answered; to which 
 decision of the Court the defendant excepted. . . . 
 
 "It is objected, in the second place, that the question put to the 
 witness does not suppose or assume a state of facts on which his opin- 
 ion was to be based. Undoubtedly, if the witness had been a stranger 
 to the actual facts, it would then have been necessary to assume a state 
 of facts as the foundation of any opinion he might give; but no such 
 assumption, it seems to us, is necessary when the witness is, or is 
 properly presumed to be, himself personally acquainted with the ma- 
 terial facts of the case. The witness here was himself the engineer 
 of the locomotive, by which the injury was done; he saw the horses 
 when they came upon the track ; we think it is fairly presumable that 
 he knew something of the distance between the engine and the horses 
 when they came upon the track; the velocity and weight of the train; 
 the character of the grade; the means of checking the velocity of the 
 train; and the time and distance which would be required to check 
 the progress of, or stop the train. If an expert may give his opinion 
 on facts testified to by others, we see no reason why he may not do 
 fo on facts presumably within his own personal knowledge; and if 
 his knowledge of any material fact be wanting or defective, the parties 
 have ample opportunity to show it by cross examination, and by testimony 
 aliunde. A physician or surgeon called on to give an opinion as to the 
 state of health, or the cause of the death of any person, and having 
 no personal knowledge of the person's symptoms, must of necessity tes- 
 tify hypothetically from assumed or supposed symptoms; but surely the 
 attending physician or surgeon of the patient, having himself the best 
 opportunity of personally knowing his symptoms and condition, is not, 
 in the first instance presumed to be under any such necessity. The 
 question before us is, in principle, it seems to us, the same; and we 
 think the Common Pleas erred in refusing to allow the question to be 
 answered."^ 
 
 3 — Compare the authorities cited in W., § 675. 
 
436 OPINION RULE. No. 438. 
 
 FIRST NATIONAL BANK v. WIREBACH'S EXECUTORS (1884). 
 
 106 Pa. 38, 44. 
 
 Assumpsit, by the First National Bank of Easton, Pa., against 
 Uranus Wirebach, executor of Jacob C. Wirebach, deceased, upon a 
 promissory note indorsed by the decedent. Plea, non-assumpsit. 
 Wirebach died in May, 1877, and upon the nonpayment of 
 the note at maturity suit was brought by the bank against his executor. 
 The defendant set up that both before and at the time of the execution 
 of the note Wirebach was of unsound mind, the result of several strokes 
 of paralysis, and was incapable of contracting. 
 
 To sustain this defence the defendant offered the notes of testimony 
 of Dr. E. C. Mann, a medical expert examined at a former trial of the 
 cause. This was objected to by the plaintiff, on the grounds: that the 
 testimony was based on "a hypothetical state of facts different from 
 that now proved;" that "the hypothetical question contained statements 
 of matters upon which no testimony whatever has been offered by the 
 defendant at this trial:" Objections overruled and testimony admitted. 
 Exception. First assignment of error. 
 
 Clark, J. : "At the trial of this cause, the testimony of Dr. E. C. 
 Mann, a medical expert examined at a former trial, on behalf of the 
 defendants, was admitted; the plaintiffs objected to the reading of the 
 notes upon several grounds, — that the testimony is based upon a hypo- 
 thetical state of facts, different from that now proved; that the hypo- 
 thetical question, in answer to. which the witness then testified, is based 
 upon facts, of which no evidence whatever is now given, and, that the 
 plaintiff has a right to cross-examine the witness, upon the basis of the 
 testimony now adduced. We cannot say, from an examination of the 
 testimony taken at the last trial, that the hypothesis assumed is not 
 fairly consistent with the facts sought to be established, and alleged to 
 be proved, by the defendants. The form of the interrogatory was such 
 as disclosed clearly what specific facts were assumed, and upon which, 
 the opinion of the expert was given; that opinion, therefore, could 
 have no weight with the jurors in their deliberations, unless they 
 found the facts assumed in the hypothesis, to have been established by 
 the proofs. Each side had the right to an opinion from the witness, 
 upon any hypothesis reasonably consistent with the evidence; and 
 whether the facts were fairly and fully stated in this instance, for the 
 opinion of the witness, was a question for discussion to the jury. The 
 opinion of an expert can be of no value, when the facts of which the 
 opinion is predicated, are not established; whether they are so estab- 
 lished is for the subsequent consideration of the jury."* 
 
 4 — Compare the authorities cited in W., § 682. 
 
No. 439. BOOK I. 437 
 
 PART III. 
 RULES OF EXTRINSIC POLICY. 
 
 General Nature of these Rules.^ "The rules admissibility of evi- 
 dence, as already pointed out/ fall into three general groups: first, 
 those which determine the probative value, or Relevancy, of 
 * circumstantial and testimonial evidence, — that is, the fundamental 
 
 quality without which no evidential data are to be allowed to be con- 
 sidered by the jury; secondly, those Auxiliary Rules of Probative Pol- 
 icy which impose artificially some additional conditions of admissibility, 
 but are directed solely to improving the quality of proof and strength- 
 ening the probabilities of ascertaining the truth as the result of the 
 investigation; and thirdly, the present group, — ^those rules which rest 
 on no purpose of improving the search after truth, but on the desire 
 to consider the requirements of extrinsic policy. 
 
 "These rules forbid the admission of various sorts of evidence be- 
 cause some consideration extrinsic to the investigation of truth is 
 regarded as more important and overpowering. The rules of this last 
 class thus differ from those of the second class in that their effect is 
 to obstruct, not to facilitate, the search for truth, and that this effect 
 is consciously accepted as less harmful, on the whole, than the extrinsic 
 disadvantages which would ensue to other interests of society it no 
 such limitations existed. It ought to follow that no limitation upon 
 the present ground ought to be recognized unless it is clearly demanded 
 by some important extrinsic policy, and that every presumption should 
 be made against such a demand. 
 
 "The most natural grouping of these rules of Extrinsic Policy is 
 that which regards them according as they are absolute or conditional. 
 The former class of prohibitions are applied by the Court like other 
 rules of evidence; the latter are not applied unless on demand of 
 the person supposed to be affected in his interests by the extrinsic 
 policy in question and to be protected by the rule from an injury 
 to that interest. The latter class of rules — ^the rules of Privilege — 
 have features in common, which sharply distinguish them from the 
 former. The former class is small in number ; indeed, it can hardly be 
 said that there are any definite and well-established rules of exclusion 
 of that type; they have usually been discountenanced in judicial opin- 
 ion. The rules of the latter class, on the contrary, are numerous and 
 well established, and affect in a marked degree the daily course of 
 proof in litigation." 
 
 I— Quoted from W., § 2175. 2— Ante, No. 6. 
 
438 RULES OF ABSOLUTE EXCLUSION. No. 440. 
 
 TITLE I. 
 RULES OF ABSOLUTE EXCLUSION. 
 
 COMMONWEALTH v. DANA (1841). 
 2 Mete. 329. 
 
 This was an indictment, containing six counts, on the second and 
 fourth sections of c. 132 of the revised statutes. The first count alleged 
 that the defendant, on the 4th of January, 1841, at Boston, unlaw- 
 fully had in his possession, with intent to offer for sale, and to sell 
 and aid and assist in selling, negotiating and disposing of five hundred 
 certain lottery tickets, and five hundred shares, to wit, halves and quar- 
 ter tickets and shares, &c. in a certain lottery called School Fund 
 Lottery, for the benefit of public schools in the State of Rhode Island. 
 The officer who served the search warrant produced at the trial sun- 
 dry articles by him taken under the writ, at the service of the same, 
 and in the office of the defendant; some of which articles were the 
 property of J. Phalen & Co. but containing lottery tickets in the School 
 Fund Lottery of the State of Rhode Island, and all in the care and 
 keeping of the defendant. The counsel for the defendant objected to 
 the admission of these articles so taken by the officer and shown to the 
 jury in court, on the ground that he had exceeded his authority under 
 the search warrant, and moved that the same be excluded. But the 
 judge refused to exclude any thing from the jury, which was done 
 or taken by the officer in execution of the warrant. To which the 
 defendant's counsel excepted. 
 
 Wilde, J. : "In support of the issue joined in the case, the attorney 
 for the Commonwealth offered in evidence the copy of a search war- 
 rant issued from the police court to the admission of which the defend- 
 ant's counsel objected, on the ground that the same had been issued 
 improvidently, and was void in law. The warrant was issued on the 
 complaint of one Jonathan F. Pulsifer, under oath, in which he al- 
 leged that he had good reason to believe, and did believe, that lottery 
 tickets, and materials for a lottery, unlawfully made, for the purpose 
 of drawing a lottery, were concealed in the office of the defendant, and 
 sundry other places. By the Rev. Sts. c. 142, § 2, any magistrate is 
 authorized to issue warrants 'to search for and seize lottery tickets, or 
 materials for a lottery, unlawfully made, provided or procured, for the 
 purpose of drawing a lottery,' when he shall be satisfied that there is- 
 reasonable cause, upon complaint made on oath, that the complainant 
 believes that lottery tickets or materials for a lottery are concealed in 
 any particular house or place. If this be a valid law, the objection o£ 
 
No. 440. ILLEGALLY PROCURED EVIDENCE. 439 
 
 the defendant's counsel fails ; ' but they contend that it is void, being 
 contrary to civil liberty, natural justice, and the Bill of Rights. . . . 
 The law, authorizing search warrants in such cases, is in no respect 
 inconsistent with the Declaration of Rights. We are also of the opinion, 
 that the warrant in this case is in conformity with all the requisitions 
 of the statute and the Declaration of Rights. . . . 
 
 "There is another conclusive answer to all these objections. Ad- 
 mitting that the lottery tickets and materials were illegally seized, still 
 this is no legal objection to the admission of them in evidence. If the 
 search warrant were illegal, or if the officer serving the warrant ex- 
 ceeded his authority, the party on whose complaint the warrant issued, 
 or the officer, would be responsible for the wrong done. But this is no 
 good reason for excluding the papers seized, as evidence, if they were 
 pertinent to the issue, as they unquestionably were. When papers are 
 offered in evidence the Court can take no notice how they were ob- 
 tained, — whether lawfully or unlawfully, — nor would they form a col- 
 lateral issue to determine that question."^ 
 
 3 — ScholHeld, J., in Stevison v. Earnest, cured by fraud or violence, while tlie party 
 
 8o III. 513, 518 (1875): "It is contem- thus procuring the attendance of the wit' 
 
 plated, and such ought ever to be the fact, ness would be liable to severe punishment, 
 
 that the records of Courts remain perma- surely that could not be urged against the 
 
 nently in the places assigned by the law competency of the witness. If it could 
 
 for their custody. It does not logically not, why shall a record, although illegally 
 
 follow, however, that the records, being taken from its proper place of custody and 
 
 obtained, cannot be used as instruments of brought before the Court, but otherwise 
 
 evidence; for the mere fact of [illegally] free from suspicion, be held incompetent?" 
 obtaining them does not change that which Compare the authorities cited in W., 
 
 is written in them. . . . Suppose the §§ 2183, 2373. 
 presence of a witness to have been pro- 
 
440 BOOK I, PART III. No. 441. 
 
 TITLE II. 
 
 RULES OF CONDITIONAL EXCLUSION 
 (PRIVILEGE). 
 
 SUB-TITLE I: 
 THE TESTIMONIAL DUTY IN GENERAL. 
 
 COUNTESS OF SHREWSBURY'S TRIAL (1612). 
 
 2 How. St. Tr. 769. 
 
 The occasion of examining Lady Shrewsbury before the Privy 
 Council, was her conduct in respect to the marriage of lady Stuart. 
 This latter lady was first-cousin to James I.; for she was the 
 **^ daughter of Charles earl of Lenox, the younger brother of 
 James's father lord Darnley. Her mother was Elizabeth daughter of 
 sir William Cavendish. The countess of Shrewsbury was aunt to lady 
 Arabella, being sister to her mother. A marriage took place between 
 lady Arabella and sir William Seymour, who at the Restoration recov- 
 ered the dukedom of Somerset for his family. Being a marriage with 
 one so nearly related in blood to the King, and without his consent, it 
 was deemed an offence against the royal prerogative, on which account 
 lady Arabella and her husband were imprisoned; the former in a pri- 
 vate house at Lambeth, the latter in the Tower. But both escaped 
 from their confinement with a view to retire abroad; and the countess 
 of Shrewsbury was taken into custody as privy and accessary to the 
 escape of lady Arabella. On being examined by the privy council, the 
 countess refused to discover what she knew of the affair of the Mar- 
 riage and Escape, or to subscribe her examination; and for this refusal 
 she was brought before a select council. The Charge was in two points : 
 I. That the said countess of Shrewsbury, by commandment of the 
 King, being called to the council table, before the lords of the council 
 at White-hall, and there being required by the lords to declare her 
 knowledge touching the said points, and to discover what she knew 
 concerning them, for the safety of the King, and quiet of the realm; 
 she answered, that she would not make any particular answer; and 
 being again asked by the King's command by the council at Lambeth, 
 and being charged again to answer to the point, she refused for two 
 causes: i. For that she had made a rash vow that she would not 
 declare anything in particular touching the said points; and for that 
 (as she said) it was better to obey God than man; 2. She stood upon 
 her privilege of nobility, scil. to answer only when she was called 
 
No. 442. PRIVILEGE ; testimonial duty. 441 
 
 judicially before her peers; for that such privilege was allowed (as 
 she said) to William earl of Pembroke, and to the lord Lumley. 
 
 Sir Francis Bacon, Attorney-General, arguing: "You must know 
 that all subjects, without distinction of degrees, owe to the King tribute 
 and service, not only of their deed and hand, but of their knowledge 
 and discovery. If there be anything that imports the King's service, 
 they ought themselves undemanded to impart it; much more, if they be 
 called and examined, whether it be of their own fact or of another's, 
 they ought to make direct answer." 
 
 "The lord Chancellor began, and the archbishop, and all the other 
 lords began with the first, and adjudged it a great and high contempt, 
 and the lord Chancellor said, that that was against the law of Eng- 
 land, with which all the lords agreed. It was resolved by the justices 
 and master of the rolls, that the denying to be examined was a high 
 and great contempt in law, against the King, his crown and dignity; 
 and that if it should be permitted, it would be an occasion of many 
 high and dangerous designs against the King and the realm, which 
 cannot be discovered: and upon hope of impunity it will be an encour- 
 agement to offenders, as Fleming justice said, to enterprize dangerous 
 attempts. And the Master of the Rolls said, that it was not any privi- 
 lege of nobility, to refuse to be examined in this case, no more than of 
 any subject."^ 
 
 Statutes. England, 1562-3, St. 5 Eliz. c. 9, §12: "If any person 
 or persons upon whom any process out of any of the courts of record 
 within this realm or Wales shall be served to testify or depose 
 concerning any cause or matter depending in any of the same 
 courts, and having tendered unto him or them, according to his or their 
 countenance or calling, such reasonable sums of money for his or their 
 costs or charges as having regard to the distance of the places is nec- 
 essary to be allowed in that behalf, do not appear according to the 
 tenor of the said process, having not a lawful and reasonable let or 
 impediment to the contrary, that then the party making default" shall 
 
 I — Jeremy Bentham, Draft for a Judi- lor, to be passing by in the same coach 
 cial Establishment, (Works, Bowring*s ed. while a chimney-sweeper and a barrow- 
 IV, 320; 1827): "What then? Are men woman were in dispute about a halfpenny- 
 of the first rank and consideration, are worth of apples, and the chimney-sweeper 
 men high in office, men whose time is not or the barrow-woman were to think proper 
 less valuable to the public than to them- to call upon them for their evidence, could 
 selves — are such men to be forced to quit they refuse it? No, most certainly." 
 their business, their functions, and what Tilghman, C. J., in Baird v. Cochran, 4. 
 is more than all, their pleasure, at the beck S. & R. 3Q7, 400 (1818): "From the na- 
 of every idle or malicious adversary, to ture of society, it would seem that every 
 dance attendance upon every petty cause? man is bound to declare the truth when 
 Yes, as far as it is necessary, — they and called upon in a court of justice. , . - 
 everybody. What if, instead of parties. The general welfare will be_ best pro- 
 they were witnesses? Upon business of moted by considering the disclosure of 
 other people's, everybody is obliged to at- truth as a debt which every man owes his 
 tend, and nobody complains of it. Were neighbor, which he is bound to pay when 
 the Prince of Wales, the Archbishop of called on, and which in his turn he is en- 
 Canterbury, and the Lord High Chancel- titled to receive." 
 
442 ^ PRIVILEGE. No. 442. 
 
 forfeit £io and give further recompense for the harm suffered by the 
 party aggrieved. 
 
 1695-6, St. 7 & 8 W. Ill, c. 3, X7: Persons indicted for treason 
 and misprision "shall have the like processe of the court where they 
 shall bee tryed, to compell their witnesses to appeare fer them att any 
 such tryal or tryals as is usually granted to compell witnesses to appear 
 against them." 
 
 United States, Constitution 1787, Amendment VI : "In all criminal 
 prosecutions, the accused shall enjoy the right ... to have compulsory 
 process for obtaining witnesses in his favor."^ 
 
 AMEY V. LONG (1808). 
 p East 473, 479. 
 This was an action on the case, in which the declaration stated 
 that the plaintiff, in Michaelmas term 47 Geo. 3. in the Court of K. B. 
 impleaded one K. Smith in a plea of trespass on the case to the 
 ■* plaintiff's damage of 500/; and such proceedings wgre thereupon 
 
 had, that afterwards, on the 2d of December, 1806, at the sittings of 
 Nisi Prius at Westminster, &c. before Lord Ellenborough C. J. a cer- 
 tain issue joined in the said plea between the plaintiff and K. S. in due 
 manner was tried, &c. : and that before the trial of the said issue, viz. 
 on the 28th of November, 1806, the plaintiff prosecuted out of the said 
 court his Majesty's writ of subpoena, directed to — Railton, W. F. Hope, 
 C. Long (the defendant), and A. Grace; by which writ the king com- 
 manded them that they should appear in their proper persons respect- 
 ively before the said Edward Lord E. &c. in his Majesty's said court 
 at Westminster Hall, in the county of Middlesex, on Tuesday, then 
 next, viz. on the 2d of December 1806, &c. : And that they the said 
 C. Long and A. Grace, or one of them, should produce and shew forth 
 at the time and place aforesaid, a certain warrant granted to them or 
 one of them by the Sheriff of Surry, upon a certain writ of non omittas 
 testatum fieri facias issued out and under the seal of the said Court, 
 &c. on or about the 13th of May then last, between the plaintiff and S. 
 Glover, defendant, and the paper writing or instructions which accom- 
 panied the same warrant; and then and there to testify and shew all 
 and singular those things which they knew, or the said warrant, papers, 
 &c. might import, of and concerning the said action between the plain- 
 tiff and K. Smith, &c. : which said writ the plaintiff afterwards, and 
 before the trial of the said issue, viz. on the ist of December 1806, 
 at Westminster, &c. caused to be made known and shewn to the de- 
 fendant, and a copy thereof to be left with him, and then and there 
 paid him is., being a reasonable sum for his costs and charges in at- 
 tending as a witness, according to the tenor of the said writ of sub- 
 
 2 — For the history of the testimonial for witnesses, see W., §§ 2189, 2193. 
 duty and of the statutes granting process 
 
No. 443. TESTIMONIAL DUTY IN GENERAL. 443 
 
 pcena. And although the defendant, in part obedience of the said writ 
 of subpoena, did afterwards on the 2d December 1806, at W. &c. appear 
 as a witness on the trial of the said issue; and although the defendant 
 could and might, in obedience to the said subpoena, have produced and 
 shown forth at the time and place aforesaid on the said trial of the 
 said issue the said warrant so mentioned and referred to in the said 
 writ of subpoena, as aforesaid, and thereby so required to be produced 
 and shewn forth as aforesaid; and although the production and shewing 
 forth of the said warrant was material evidence for the plaintiff on 
 the said trial, and would have enabled the plaintiff to have obtained 
 a verdict on the said issue against the said K. S. at W. &c. whereof 
 the defendant there had notice; yet the defendant not regarding his 
 duty in that behalf, but wrongfully and unjustly intending to injure 
 the plaintiff, and to deprive her of the benefit of the same evidence 
 on the trial of the said issue, and thereby to prevent her from obtaining 
 a verdict against the said K. S. thereon, and put her to expence, &c. 
 (did not nor would at the time and place aforesaid, on the said trial of 
 the -said issue, produce or shew forth the said warrant, or the said paper 
 writing or instructions so mentioned and referred to in the said writ 
 of subpoena as aforesaid ; although the defendant was then and there 
 solemnly called upon by the said Court for that purpose, and had no 
 lawful or reasonable excuse or impediment to the contrary; but then 
 and there wholly neglected and refused so to do; and by reason thereof 
 the plaintiff was nonsuited in the said action; and such proceedings 
 •were thereupon had in the said action, that afterwards, in Hil., 47 
 Geo. 3. the said K. S. recovered against the plaintiff 52I. los. for his 
 costs and charges about his defence in that behalf, as by the record, &c. 
 more fully appears. By reason of which said several premises the 
 plaintiff was not only obliged to pay and did pay to the said K. S. 
 the said sum of S2I. ids. but was hindered and delayed in the recov- 
 ery of her damages in the plea aforesaid, and was obliged to lay out 
 200I. more in and about the prosecution of the said action, &c. There 
 was another count in substance the same. To which the defendant 
 pleaded not guilty; and the plaintiff obtained a verdict. 
 
 A motion was made to arrest the judgment on two grounds : 1st, that 
 it was not sufficiently alleged in the declaration that the defendant had it 
 in his power to produce the warrant which the writ of subpoena duces 
 tecum required him and another person to whom it was directed, or one 
 of them, to produce at the trial; 2dly, That that which is commonly 
 called a writ of subpoena duces tecum is not of compulsory obligation 
 in the law. Mr. Gihbs, Attorney-General, and Mr. Garrow, arguing 
 against the issuing of such process: "The writ of subpoena duces 
 tecum only lay to public officers for the production of the public docu- 
 ments in their custody, in which all persons had or might have an in- 
 terest, and could not properly be extended to private persons". Messrs. 
 Park, Marryat, and Pell (arguing for the process) : "This writ is of 
 essential importance to the due administration of justice, oftentimes as 
 
444 PRIVILEGE. No. 443. 
 
 much as the common writ of subpoena to compel the attendance of wit- 
 nesses; for where a matter depends upon written evidence in the pos- 
 session of another than the party in the cause who is interested in its 
 production, it would be nugatory to enforce his personal attendance 
 without the document by which the truth of the fact in issue can alone 
 be proved. ... As the obligation of a witness to answer by parol does 
 not depend upon his own judgment, but on that of the Court, the same 
 rule must prevail with respect to his production of documentary evi- 
 dence. The witness is bound at all events to bring with him the 
 papers which he has been subpoenaed to produce; and when it is in 
 Court, he may then state any legal or reasonable excuse for withhold- 
 ing it, of which the Court will judge. In this respect there can be no 
 distinction between parol and written evidence. Proof of either kind, 
 if within the knowledge or possession of the witness, ought to be pro- 
 duced if legal; and of its legality the Court and not the witness must 
 judge." 
 
 Lawrence, J., said "this was one of the greatest questions he had 
 ever heard agitated in Westminster Hall, — one which most deeply af- 
 fected the administration of justice both civil and criminal. He could 
 not reconcile it to his mind to suppose that the innocence of -a person 
 accused might depend on the production of a certain document in the 
 possession of another, who had no interest in withholding it, and yet 
 that there should be no process in the country which could compel him 
 to produce it in evidence." 
 
 Elleneorough, L. C. J.: "The right to resort to means competent 
 to compel the production of written, as well as oral, testimony seems 
 essential to the very existence and constitution of a court of common 
 law, which receives and acts upon both descriptions of evidence, and 
 could not possibly proceed with due effect without them. And it is 
 not possible to conceive that such courts should have immemorially 
 continued to act upon both, without great and notorious impediments 
 having occurred, if they had been furnished with no better means of 
 obtaining written evidence than what the immediate custody and pos- 
 session of the party who was interested in the production of it, or the 
 voluntary favor of those in whose custody the required instruments 
 might happen to be, afforded. . . . There are circumstances in respect 
 of which the production of an instrument required in the terms of a 
 subpoena, would not be enforced by the authority of the Court, — which 
 is a proposition too clear to be doubted. And to be sure, though it 
 will always be prudent and proper for a witness served with such a 
 subpoena to be prepared to produce the specified papers and instruments 
 at the trial, if it be at all likely that the judge will deem such produc- 
 tions fit to be there insisted upon ; yet it is in every instance a question 
 for the consideration of the judge Nisi Prius whether, upon the prin- 
 ciples of reason and equity, such production should be required by him, 
 and of the Court afterwards, whether, having been there withheld, the 
 party should be punished by attachment." 
 
No. 444. TESTIMONIAL DUTY IN GENERAL. 445 
 
 Joseph Chitty, Practice of the Law, III, 829 (1835) : "In general 
 it is advisable to issue and serve, not only a subpoena to give evidence, 
 but also to produce all documents in the writness's power, by a 
 *** subpoena duces tecum, and, when practicable, the date and par- 
 ticulars of each deed or document should be stated, so as to preclude 
 the possibility of excuse, that the pai^ticular document had escaped rec- 
 ollection; and afterwards the writ may conclude, 'and all other deeds, 
 documents, instruments, writings, and papers whatsoever, in your cus- 
 tody or power, that may afford any evidence or information touching 
 the matters in difference in the said cause,' and further, it may be use- 
 ful to require the zvitness in terms 'diligently to search for and exam- 
 ine and enquire after all such deeds, documents, instruments, papers 
 and writings;' so that the same may be produced and given in evidence 
 to the jurors at the time and place of trial. This would prevent a not 
 unfrequent excuse, that the witness was not aware that it was his duty 
 to search, which after having been served with so explicit a subpoena, 
 he could not urge. . . . 
 
 "The best course on all occasions would be to issue a subpoena 
 duces tecum in the fullest form, and as in the antecedent note ; and the 
 names of four witnesses are still allowed to be included in one writ. . . . 
 Whether a witness be favourable or not, it is always most prudent to 
 subpoena him, or endeavor to do so, as soon as the issue has been 
 joined, or at least, on the part of a defendant, as soon as notice of a 
 trial has been given; first, because such service will prevent the witness 
 from getting out of the way, and avoiding service; secondly, because 
 it will protect the witness from arrest on civil process, and preclude 
 all excuses, excepting dangerous illness, for non attendance; and, 
 thirdly, htcsMse if such bona fide endeavour to serve be ineffectual, the 
 judge, upon an affidavit of such early but unsuccessful endeavours and 
 of the materiality of the witness, would probably postpone the trial on 
 the application of the defendant, which he would refuse if the en- 
 deavours were too long delayed. At all events, a witness would have 
 good ground to complain, if he were not served a reasonable time be- 
 fore the trial, and perhaps even if his disobedience might be excused. 
 In a Town cause a bona fide endeavour to serve the witness ought to 
 be made at least four days before the trial; and a notice in London 
 served at two o'clock in the afternoon, for a witness to attend the sit- 
 tings at Westminster on the same afternoon, is much too short. In a 
 Country cause, the witness, if out of the assize town, must at all events 
 be served before the commission day, and also before the day of attend- 
 ance named in the writ; and if the service be afterwards, although be- 
 fore the actual day of trial, and in consequence the witness do not 
 attend, the Court will not grant an attachment. At the same time 
 every prudent witness should exert himself and endeavor to attend, 
 however short the notice. 
 
 "The safest course is always to serve a copy of the subpoena, and 
 
446 PRIVILEGE. No. 444. 
 
 at the same time to produce and show the original to the witness in the 
 presence of two persons, who will afterwards join in an affidavit that 
 the original was produced; for if the witness, in answer to an applica- 
 tion for an attachment, should swear that the original subpoena was 
 not shown to him, the rule nisi for the attachment might be discharged 
 with costs, and this although it be admitted that the witness did not 
 demand inspection of the original." 
 
 BRADDON'S TRIAL (1684). 
 p How. Si. II 27, ii6j. 
 Mr. Thompson : "Call Mr. Fielder, and Mrs. Mewx, and Mr. Lewes." 
 Lewes appeared. Crier: "Lay your hand on the book.'' Lewes: "My 
 lord, I desire my charges may be paid, before I swear." L.C. J. 
 * Jefferies : "Pr'ythee, what have I to do with thy charges ? I won't 
 
 make bargains between thee. If you have any evidence to give, and 
 will give it, do; if not let it alone." Lewes: "My lord, I shall not give 
 any evidence till I have my charges." L. C. J.: "Braddon, If you will 
 have your witnesses swear, you must pay them their charges. Mr. 
 Braddon: "My lord, I am ready to pay it, I never refused it; but what 
 shall I give him?" L. C. J.: "Nay, I am not to make bargains between 
 you, agree as you can.'' Mr. Thompson : "My lord, we are willing to do 
 what is reasonable. You, Lewes, what do you demand?" Lewes: "He 
 can't give me less than 6s. a day?" L. C. J.: "Why, where dost thou 
 live?" Lewes: "At Marlborough." L. C. J.: "Why, canst thou earn 6s. a 
 day by thy own labour at Marlborough ?" Lewes : "My lord, I am at 40J. 
 or 3/. a week charge with my family and servants." L. C. J.: "What trade 
 art thou?" Lewes: "A stapler." L. C. J.: "And does your trade stand 
 still while you are in town?" Lewes: "Yes, to be sure it can't go well 
 on." L. C. J.: "Well, I say that for you, you value your labor high 
 enough, I know not what your evidence may be; but, Mr. Braddon, 
 you must pay your witness, if you will have him." Mr. Braddon: "1 
 will, my lord, very readily. What will you have? I have paid you 
 something already." Lewes: "Give me 20.f. more then. You can't 
 give me less." Then Mr. Braddon paid him 20s., and he was sworn.* 
 
 WEST V. STATE (1853). 
 
 I Wis. 210, 2^0. 
 
 The plaintiff in error was indicted at the April term of the circuit 
 
 court for the county of Fond du Lac, for the seduction of Eliza Pierce. 
 
 Before the trial commenced, the defendant, by his counsel, moved 
 
 ** the court for an attachment against one Ashel Brooks, on whom 
 
 a subpoena, as a witness in behalf of the defendant had been regularly 
 
 3 — Statutes: VnlteA States, Rev. St. at, the place of examinatioii, are paid or 
 
 1878, § 870: No witness subpoenaed to tendered to him at the time of the service 
 
 depose under a dedimus potestatem "shall of the subpoena." 
 
 be deemed guilty of contempt for disobey- Compare the authorities cited in W., 
 
 ing . . . unless his fee for going to, §§2201, 2202. 
 returning from, and one day's attendance 
 
No. 446. TESTIMONIAL DUTY IN GENERAL. 447 
 
 served, and who had been in attendance as such witness, in obedience 
 to said subpoena, during that term, but had left and gone home the day 
 before the application was made. No fees had been paid or tendered 
 the witness, and it appeared that his testimony was material to the 
 defense. The motion was denied by the Court, on the ground that no 
 fees had been paid or tendered to the witness by the defendant. To 
 which decision of the Court, the defendant excepted. 
 
 Smith, J.: "It is alleged for error, that before the trial commenced, 
 the defendant, by his counsel, moved the Court for an attachment 
 against one Ashel Brooks, who, it appeared, had been duly subpoenaed 
 to attend as a witness on behalf of the defendant, and who had been 
 in attendance, but had left and gone home the day before the trial; 
 which said motion was overruled by the Court, on the ground that no 
 fees had been paid or tendered to the witness. . . . 
 
 "It was, anciently, the commonly received practice, in the common 
 law courts, that no counsel should be allowed the defendant upon his 
 trial upon the general issue, in any capital crime, unless some point of 
 law arose, proper to be debated. Several reasons are given for this 
 rule; perhaps the best, if not the most facetious, that could be devised, 
 is that given by Sir Edward Coke, which is, 'because the evidence to 
 convict the prisoner should be so manifest as it could not be contra- 
 dicted.' So, also, the doctrine was held, that as counsel was not al- 
 lowed to any prisoner accused of a capital crime, so neither should he 
 be allowed to exculpate himself by the testimony of any witnesses . . . 
 At length the enormous injustice of the rule became so oppressive to 
 the consciences of the courts that the practice of examining witnesses 
 for the prisoner, without oath, gradually grew up. But the iniquity of 
 this practice was as obvious as that of the old rule. The witnesses for 
 the crown testified under oath, and however solemnly or truly, or rea- 
 sonably they might testify, the evidence produced by the prisoner, 
 wanted the same sanction of an oath, and lost its just weight in the 
 estimation of the jury. At different times afterwards, the rule was so 
 modified by acts of parliament, as to admit the examination of witnesses 
 on oath, in behalf of the defendant, in particular cases, until at length, 
 it was declared by statute (i Ann. St. 2 c. 9), 'that in all cases of 
 treason and felony, all witnesses for the prisoner should be examined 
 •upon oath, in like manner as the witnesses against him.' . . . And in 
 conformity with the full equity of the rule, the Constitution of the 
 United - States, and of this state, declares 'that in all criminal prosecu- 
 tions, the accused shall enjoy the right to be heard by himself and 
 counsel for assistance in his defense, and to have compulsory process 
 to compel the attendance of witnesses in his behalf.' . . . The right to 
 compulsory process, secured by the provisions of the Constitution, above 
 referred to, cannot be taken away by legislative enactment, and ought 
 not to be hampered by judicial construction. The Legislature, so far 
 from attempting to restrict this right, have expressly recognized it, and 
 provided ample means for its full enjoyment. Section 8 of chapter 146 
 
448 PRIVILEGE. No. 446. 
 
 of the Wisconsin Revised Statutes, page 724, is in the following words : 
 'It shall not be necessary to pay or tender any fees to any witness who 
 is subpoenaed in any criminal prosecution, but every such witness shall 
 be bound to attend, and be punishable for nonattendance, in the same 
 manner as if the fees allowed by law had been paid him.' By no rule 
 of construction, can this section be restricted to witnesses subpoenaed 
 on behalf of the state. It is evidently enacted in aid of the constitu- 
 tional guaranty above mentioned, and includes, as well the witnesses 
 for the defendant, as those for the State. 
 
 "But, it is urged, that this section of the statute, if held to refer to 
 witnesses summoned on behalf of the defendant, is repugnant to that 
 provision of the Constitution, which provide that 'the property of no 
 person shall be taken for public use, without just compensation there- 
 for.' The time and labor of attendance of the witness are said to be 
 as much property, within the meaning of the Constitution, as are chat- 
 tels or land. . . . But, in no just sense, can the requisition upon the 
 citizen of his attendance upon the Courts to testify as a witness, be 
 considered as the taking of private property for public use, within the 
 meaning of the Constitution. The object of that provision in the 
 fundamental law, was to protect the citizen from the grasping demands 
 of government, not to absolve him from any of those various personal 
 duties which every good citizen owes to his country; such as the per- 
 formance of militia duty, obedience to the call of the proper authority 
 for his personal service in suppressing a riot, the apprehension of a 
 felon, affording assistance to officers in making arrests when resisted, 
 and the like. There are very many instances in which the citizen is 
 required to perform personal service, or render aid to his government, 
 without other compensation than that of his participation in the general 
 good, and his enjoyment of the general security and advantage which 
 result from common acquiescence in such obligations on the part of all 
 the citizens alike, and which is essential to the existence and safety of 
 society. . . . We hold, therefore, that a witness is bound to obey the 
 process of subpoena in a criminal prosecution, as well on the part 
 of the defendant as on that of the State, without payment or tender of 
 fees. 
 
 "But it does not follow that the refusal by the Court, to grant 
 an attachment against the witness for non-attendance, is error. The 
 award of the attachment rests in the sound discretion of the Court, 
 to whom application was made, and whose process is disobeyed. It 
 is somewhat .like a motion for continuance, or new trial, and other 
 like matters addressed to the discretion of the Court, the refusal of 
 which is not necessarily error, and only becomes so when that dis- 
 cretion is clearly abused, to the manifest injury of the party, or to the 
 perversion of justice. No such abuse, nor indeed any abuse of dis- 
 cretion, appears in this case. It is true, the defendant in his affidavit, 
 alleges that the witness was material. But he does not apply for a 
 continuance on account of his absence; he does not state that he can- 
 
No. 447. TESTIMONIAL DUTY IN GENERAL. 449 
 
 not prove the same facts by other witnesses, or that he cannot safely 
 proceed to trial without his testimony; nor does any fact appear, that 
 in the least evinces an improper exercise of the discretion of the court. 
 All that does appear is, that the court assigned an erroneous reason 
 for its judgment, which may, for aught that is apparent upon the rec- 
 ord, have been correct."* 
 
 PEOPLE V. DAVIS (1836). 
 
 15 Wand. 602, 608. 
 
 The defendant was brought up on an attachment for disobedience 
 to a subpoena served upon him to attend as a witness for the plain- 
 tiff in a cause of Kelley v. De Forrest, noticed for trial at the 
 **' Warren circuit, on the first Tuesday of June last. The defend- 
 ant was duly subpoenaed on the 26th May, (13 days before the cir- 
 cuit,) at the city of New- York, where he resided. Ten dollars were 
 given to him to pay his expenses. He did not attend. Being brought 
 into court, interrogatories were filed, to which he answered. . . . The 
 substance of the answers is that he is entirely insolvent, and had, 
 when subpoenaed, delivered up all his property without reserve, into 
 the hands of his assignees under the insolvent law, except what was 
 exempt from execution; that he had a wife and three children for 
 whom he provided, and that two of his children were at the time when 
 the subpoena was served, and up to the time of the circuit, so sick as 
 as to render it improper for him to leave them; that his family were 
 wholly dependent on his daily labor for their daily support, and 
 that they must have suffered, if left, for the common necessaries of 
 life; that his wife was unable to attend the children alone during 
 nights, and he could not procure her any assistance; that the ten dol- 
 lars which he received as witness' fees would not, as he believes, have de- 
 frayed his expenses of travel by the public conveyances; that he ad- 
 vised with his friend, and leaving the fees with him, procured him to 
 write to the plaintiff's attorney, stating his excuse. . . . 
 
 CowEN, J. : "It was the duty of the witness to obey the subpoena ; 
 and he is guilty of a contempt in disregarding it, and must be pun- 
 ished unless he has furnished us with a legal excuse. Both insolvency 
 and poverty in the witness are sworn to by himself and Mr. Lamb, 
 who was one of his assignees. But it is scarcely necessary to observe 
 that these form no excuse in the abstract. If received at all it must 
 be in connection with the situation of the family, or as showing the 
 utter inability of the defendant to defray his expenses. In render- 
 ing these excuses of sickness and extreme poverty, while we are not 
 disposed to deny the validity of either if clearly made out in a proper 
 degree, we cannot allow the witness to judge for himself. Were we 
 to stop and be content with his telling us in this general way, 'some 
 
 4 — Compare the authorities cited in W., §§ 2191, 2192. 
 
450 PRIVILEGE. No. 447. 
 
 of my family were so sick that, with want of assistance and consider- 
 ing our poverty, I deemed it improper to leave home,' we should sur- 
 render our own judgment. . . . The process of subpoena demands great 
 and extraordinary efforts on the part of the witness to obey. It com- 
 mands him expressly to lay aside his business and excuses; and, while 
 it lays him under severe obligations, it clears away obstructions in the 
 path of obedience ; the witness was always privileged from arrest on 
 civil process in going, staying, and returning. It is not denied that 
 serious sickness in his family, such as would prevent a prudent father 
 or husband from leaving home on his own important business, would 
 save him from the imputation of a contempt and, perhaps from an 
 action. But such a cause ought clearly to be shown to the Court. 
 . . . Above all, where the summons allows him full time, he should 
 struggle to get ready, as he would to go abroad on his own pressing 
 business.' If inevitably disappointed, after exhausting every reason- 
 able expedient, he ought certainly to be excused from the payment of 
 a penalty which presupposes some degree of neglect, at least. Wit- 
 nesses are the summary instruments of investigation in all our common- 
 law courts. It is not until a positive disability is apparent that their 
 domestic examination will be received as a substitute for their actual 
 presence. The important right of oral examination and cross-examina- 
 tion is at stake; and every good citizen, if he could be supposed to 
 regard nothing beyond his own rights, should struggle for the front 
 rank in the order of obedience. The least we can say of the case 
 before us is, that it presents an unpleasant contrast to all this; great 
 diligence, from first to last, in devising colorable excuses, without lift- 
 ing a finger in preparation to go forward. The defendant must be 
 fined, and the fine ought, at least, to be so large as to indemnify the 
 plaintiff Kelly against the expenses of the last circuit, with the costs 
 of this proceeding."' 
 
 New York Commissioners (David D. Field and others) of Prac- 
 tice AND Pleading, First Report, 250 (1848) : "Can there be a doubt 
 that, under our present system, the rights of witnesses are gross- 
 **' ly disregarded? Why should the law permit a person to be 
 taken from Suffolk to Niagara against his will, and at great sacrifice, 
 because two persons in Niagara have a legal dispute? The loss to the 
 witness may be more than the whole subject of litigation. Does not 
 the law in this case inflict a greater wrong that it may redress a 
 less? We think it does; and we propose to prevent it hereafter, by 
 declaring that no person shall be taken hereafter out of his own county 
 for another person's civil action. . . . There should seem, moreover, 
 to be no good reason to require the personal attendance of a witness at 
 so great a sacrifice. No doubt, his appearance upon the stand, where 
 the testimony may be taken from his lips,, is preferable to a written 
 
 5 — Compare the authorities cited in W., I 2204. 
 
No. 450. TESTIMONIAL DUTY IN GENERAL, 451 
 
 Heposition, taken at a distance. But that is not the only question. The 
 point is this, whether the increased advantage to the parties of having 
 the judge and jury see the witness, is more than a counterpoise to the 
 increased injury to the witness from being brought so far, and at so 
 great a loss. We think the question can be answered in only one way. 
 In his own county let him be called to the stand. If it be wanted in 
 another, let it be taken in his own, and transmitted thither. Should 
 there be a really urgent occasion for the personal attendance of the 
 witness, there can be little doubt that the party may be able to induce 
 him to attend, by compensating him for his expenses and time. So 
 it is now, where a witness is wanted from another State; the party 
 makes an arrangement with him to come in many cases where his 
 attendance is important. If a witness in Jersey City be wanted for a 
 trial in New York, he can generally be induced to attend, though he 
 cannot be compelled to do so. So it will happen, we doubt not, if our 
 plan be adopted." 
 
 Statutes: California, P. C. 1872, §1330: "No person is obliged 
 
 to attend" out of the county of residence or of service of subpoena, 
 
 unless a subpoena is indorsed by the trial judge's order, or a 
 
 judge of the Supreme or Superior Court, on affidavit of the party 
 
 "stating that he believes" the evidence to be material and attendance 
 
 necessary. 
 
 United States, Rev. St. 1878, § 870 : No witness is compellable 
 to attend for a dedimus deposition "out of the county where he resides, 
 nor more than 40 miles from the place of his residence." lb., § 876 : 
 In civil cases, a subpoena shall not run more than 100 miles from the 
 place of the court, if the witness lives out of the district of the court.* 
 
 SUB-TITLE II. 
 PRIVILEGED TOPICS. 
 
 DOE dem. EGREMONT v. DATE (1842). 
 3 Q. B. Sop, 621. 
 
 Ejectment for lands in Somersetshire. The lessor of the plain- 
 tiff, George, Earl of Egremont, claimed under the demise of Charles, 
 late Earl of Egremont, who died in 1763, leaving his will dated 
 *'" 30th July, 1761. By the will, lands were devised to George 
 O'Brien, late Earl of Egremont, for life, with limitations over in re- 
 remainder, under which remainder the lessor of the plaintiff was now 
 entitled as tenant in tail. ... In order to show that the lands in ques- 
 tion were part of the lands devised, and had been the property of the 
 devisor, it was proposed to prove that they had been held by the tenant 
 
 6 — Compare the authorities cited in W., § 2207. 
 
452 PRIVILEGED TOPICS. No. 450. 
 
 for life, the late George O'Brien, Earl of Egreraont, as landlord. The 
 evidence opened in support of this was a rent book, belonging to the 
 late tenant for life, and now in the hands of his executor, Colonel 
 Wyndham, in which was an entry of the receipt of rent for his prop- 
 erty, by the steward of the tenant for life, in 1800. A subpoena duces 
 tecum, to produce the book, was served on Colonel Wyndham: and 
 (by consent of the parties) Mr. Murray, Colonel Wyndham's attorney, 
 appeared for him, with it. . . . He then objected to produce the rent 
 book, on the ground that it was a document relating to the title of 
 Colonel Wyndham; but the learned judge overruled the objection; 
 and the book was produced. Verdict for the plaintiff. 
 
 Sir W. W. Follett, Erie, Crowder, and Montague Smith showed 
 cause: "First, even if the witness was not compellable to produce the 
 book, that is no ground for a new trial on the application of one of 
 the parties. The book being, in itself, legitimate evidence, what right 
 has the party against whom it is produced to make the objection? The 
 only person injured, if any, is the owner of the book: but he is not 
 the party making the application." Lord Denman, C. J. : "Surely 
 injustice is done to the defendant if that is admitted in evidence against 
 him which ought not to have been admitted. It seems very difficult t© 
 say that such a situation is not to be reviewed." 
 
 Kelly, Bere and Butt, contra. . . . "Even where the judge directs 
 the witness to produce the evidence, if the witness still refuse, all that 
 the judge can do is to punish him for contempt; and yet, if the judge 
 improperly refuse to order the evidence to be produced, it is admitted 
 that this is a ground for a new trial." Patteson, J.: "Taking that 
 to be so, it shows only that a party to the suit has a right to complain 
 that the judge has not exercised on his behalf the power which ought 
 to have been exercised; but, where a judge refuses to protect a wit- 
 ness from giving the evidence, that is not a decision against either party 
 in the cause." . . . 
 
 Lord Denman, C. J. : "With respect to the preliminary point, I 
 may perhaps have expressed myself too strongly during the argument, 
 considering the case of Marston v. Downes, i A. & E. 31, which was 
 not present to my mind at the moment. I must own, however, that 
 I am not altogether satisfied with the principle of that decision. Per- 
 haps I might be inclined to put the argument thus. A party to a suit 
 has a right to insist that no evidence shall be produced against him, 
 except such as can be given legally. Now, if a witness be compelled 
 by a judge at Nisi Prius to produce a title-deed which he is legally 
 entitled to withhold, it strikes me that the party to the suit against 
 whom the evidence is produced, is affected by that which ought not 
 to have been laid before the jury. . . . These observations, however, 
 are only thrown out for the purpose of indicating a doubt upon a ques- 
 tion of considerable importance, which seems to me to have arisen quite 
 unnecessarily in this case. For I have not the least doubt that the 
 •witness was compellable to produce the book in question." . . . 
 
No. 451. SUNDRY PRIVILEGES. 453 
 
 Coleridge, J.: "... I must say that I entertain great doubt 
 ■whether we could have reviewed the decision of the learned judge. 
 There is a very broad distinction between cases where the privilege 
 lias been allowed, and those where it has been disallowed. In the 
 former case, a party has been precluded from proving that which he 
 ■was entitled to prove. In the latter case, the party whose privilege 
 has been disallowed has no locus standi in banc. I recollect a case on 
 the western circuit, in which I was regained as counsel for a witness, 
 to resist his being compelled to produce some evidence. Mr. Justice 
 ParKj who was perfectly familiar with the course of practice at Nisi 
 Prius, would not for a moment allow me to appear in that character. 
 He said, 'I must be left to take care of the witness, and I alone; I 
 shall not hear counsel on his behalf.' If counsel cannot be heard for 
 a witness at Nisi Prius, certainly he cannot be heard for that witness 
 in banc. And, if the witness cannot call upon us to review the deci- 
 sion, can the party to the cause do so? Legitimate evidence has been 
 produced against him : he is not prejudiced by that, and can have no 
 ground of complaint."' 
 
 J. Sundry Privileged Topics. 
 
 WALKER'S TRIAL (1794). 
 
 23 How. St. Tr. iop8. 
 
 Mr. Erskine, cross-examining Thomas Dunn: "Who gave you the 
 [glass of] shrub the next day?" Witness: "Suppose a gentleman was 
 so friendly as to give me a glass of shrub, is that anything?" 
 **■'■ Counsel: "I am not finding fault with it; who was it?" Wit- 
 ness: "1 do not know whether that is to be answered or not. ... I 
 do not suppose that is any material matter." Mr. Justice Heath : 
 "You have nothing to do whether it is material or no; answer the 
 question."' 
 
 7 — Porter, J., in Great Western Turn- 8 — Gamble, J., in Ex parte McKee, i8 
 pike Co. V. Loomis, 32 N. Y. 127, 138 Mo. 599, 601 (1853): "The opinion of 
 (1865): "Strictly speaking, there is no the witness that the question is irrelevant 
 case in which a witness is at liberty to is entitled to no consideration. If a. mere- 
 object to a question. That is the office of ly frivolous or impertinent question were 
 the party or of the Court. The right of aslced of a witness, the officer taking the 
 the witness is to decline an answer, if the deposition might not feel himself called 
 Court sustains his claim of privilege. When upon to compel an answer; but it would 
 the question is relevant, it cannot be ex- only be in a very plain case of impertinence 
 eluded on the objection of the party, and that he would undertake to decide that 
 the witness is free to assert or to waive the witness should be allowed to avoid 
 his privilege. But when the question is answering. The Court in which the cause 
 irrelevant the objection properly proceeds is pending will at the trial reject irrele- 
 from the party, and the witness has no vant evidence, and it would greatly de- 
 concern in the matter unless it be over- tract from the value of our statutes which 
 ruled by the judge." authorize the taking of depositions, if the 
 
 Compare the authorities cited in W., question of relevancy was to be raised 
 
 § 2196. before and decided by every justice of 
 
454 PRIVILEGED TOPICS. No. 452. 
 
 DOE dem. EGREMONT v. DATE (1842). 
 
 3 Q. B. 6op, 617. 
 
 The facts and the testimony offered in this case, as well as the ob- 
 jection made, have been set forth ante, No. 450. 
 
 Denman, L. C. J. (compelling the witness to produce the 
 book) : "[The executor] possessed it in the character of execu- 
 tor of the late tenant for life ; when produced, it proved the fact of pay- 
 ment of rent to his testator. Why was the witness not to prove that 
 fact, either by his personal knowledge, if the party calling him chose 
 to question him, or by any paper which he might possess? Such a 
 paper was not a title-deed, nor within the protection of the rule which 
 exempts witnesses from producing documents in the nature of title- 
 deeds. The production of the paper was a mode of proving a fact; 
 that this fact might be injurious to some interest of his own furnishes 
 no reason for his not producing the book. I consider him strictly as 
 a witness ; ... he is indeed an interested witness, but he does not 
 therefore possess the privilege, which a party to the cause would 
 have, of refusing to give evidence."" 
 
 DOBSON V. GRAHAM (1889). 
 49 Fed. R. 17 (C. C, E. D. Pa.) 
 
 Bill to enjoin infringement of patent by John Dobson against Rich- 
 ard Graham. Plaintiff called defendant's workmen to show infringe- 
 ment, and asked them to state wherein the defendant's machine 
 differed from complainant's. This they refused to do under 
 advice of counsel. Plaintiff moves for an inspection of defendant's 
 machinery, and to compel the witnesses to answer interrogatories. Mo- 
 tions denied. 
 
 Butler, J. : "These motions must be dismissed for the reasons 
 stated at an earlier period in the case. As then said, the plaintiff filed 
 his bill charging infringement of his rights without having any posi- 
 tive knowledge upon the subject. He seems to have relied upon the 
 chance of obtaining evidence to support the charge from the defendant 
 and his workmen. Such a case is not entitled to special favor of a 
 court of equity. The defendant's business is conducted in private, for 
 the purpose of securing to himself (as he asserts) the use of his pecu- 
 liar machinery and methods of manufacture. These secrets of his 
 business, if they cover nothing unlawful, are his property and as well 
 
 the peace or other oflfcer who takes a vant, would be to deprive the party of the 
 
 single deposition in the cause, when he testimony of every unwilling witness." 
 
 cannot know the aspect which the case Compare the authorities cited in W., 
 
 will probably assume at the trial. To al- § 2210. 
 
 low the witness himself to pass upon the 9 — Compare the authorities cited in W., 
 
 question of relevancy and refuse to an- § 2211. 
 
 swer such questions as he thought irrele- 
 
No. 454. SUNDRY PRIVILEGES. 455 
 
 entitled to protection as the rights secured by the plaintiff's patent. 
 His workmen are bound by express contract not to divulge them. In 
 the absence of such contract equity would imply an obligation of equal 
 force. If it were shown that these secrets are used as a cloak to 
 cover an invasion of the plaintiff's rights, or if there was reliable evi- 
 dence tending to show it, and justifying a belief that they are sound, 
 the motions would be sustained. But there is no such evidence before 
 us. It appears that the defendant employs certain workmen who were 
 formerly employed by the plaintiff; that these workmen are familiar 
 with the plaintiff's patented machinery, and that they aided in con- 
 structing the defendant's. This is substantially all. These workmen 
 have been permitted to answer questions directed towards a compari- 
 son of the defendant's machinery with the plaintiff's except where the 
 answer would tend to describe wherein the former differed from the 
 latter, and thus to describe the peculiarities of the defendant's ma- 
 chinery. The Court cannot properly compel them to go further, nor, 
 in this state of facts, compel the defendant to submit his machinery 
 to inspection."^" 
 
 FREE y. BUCKINGHAM (1879). 
 5P N. H. 219, 225. 
 
 The bill alleged a deed fraudulently made by the defendant Buck- 
 ingham, as attorney of the plaintiffs, to the defendant Young, and con- 
 tained a prayer that the deed be set aside, and for other relief. 
 *"* . . . Upon cross-examination of Mr. Free, one of the plaintiffs, 
 the defendants' counsel asked him, "Are you a Spiritualist?" The 
 question being objected to, the defendants' counsel claimed the right 
 to make inquiries of this kind, "as affecting the credit of the wit- 
 ness." The witness answered several other questions of a similar 
 character. The defendants' counsel finally inquired of the witness 
 whether the spirit of Daniel Webster was present aiding him in the 
 trial of the cause, and whether he had received and availed himself 
 of information from departed spirits, disclosing the character and the 
 method of the defence. The referee, being of the opinion that the 
 examination on this point had proceeded far enough, rejected the last 
 named questions, and others of a similar character, and the defendants 
 excepted. . . . 
 
 Foster, J.: "There was no error of law in the referee's refusal to 
 allow the plaintiff, Mr. Free, to be asked, on cross-examination, whether 
 the spirit of Daniel Webster was present aiding him in the trial,, and 
 whether he had been assisted by departed spirits in obtaining informa- 
 tion of the defence. Nor would it have been error of law to allow 
 those questions to be put. It was a question of fact how far the pro- 
 posed inquiry could usefully go for the purpose of discovering the 
 
 10 — Compare the authorities cited in W., § 2212. 
 
456 PRIVILEGED TOPICS. No. 454. 
 
 credit of the witness. His testimony or other evidence might have been 
 of such a character that light would be thrown upon it by a disclosure 
 of his spiritualistic faith or practice; and his testimony and the case 
 might have been such that there was no occasion to call for any 
 disclosure on that subject. 
 
 "It is not claimed that the peculiarity of Free's religious belief 
 affected his capacity as a witness, but only his credibility. Upon cross- 
 examination, a witness may be asked any questions which tend to test 
 his accuracy, veracity, or credibility, or to shake his credit by injuring 
 his character; and to this end his way of life, his associations, his 
 habits, his prejudices, his mental idiosyncracies (if they affect his capac- 
 ity), may all be relevant. But it is not customary in modern practice 
 to permit an inquiry into a man's peculiarity of religious belief. This 
 is not because the inquiry might tend to disgrace him, but because it 
 ■would be a personal scrutiny into the state of his faith and conscience, 
 contrary to the spirit of our institutions. A man is competent to tes- 
 tify who believes in the existence of God and that divine punishment, 
 either in this life or the life to come, will be the consequence of perjury. 
 No judicial tribunal is bound to inquire, nor ordinarily will inquire 
 whether a witness be a Protestant or Romanist, Trinitarian or Uni- 
 tarian, a Shaker, Mormon, Jew, or Gentile, a Spiritualist or a Ma- 
 terialist."" 
 
 STATE v. HILMANTEL (1868). 
 23 Wis. 422, 425. 
 
 At the annual election for county officers of Milwaukee county, in 
 November, 1866, Hilmantel received a majority of the votes cast for 
 the office of clerk of the board of supervisors of said county; 
 *** and, having received the certificate of election, he entered upon 
 the duties of the office. The complainant was the opposing candidate for 
 said office at that election, and brought this action to try Hilmantel's 
 title, alleging that a portion of the votes cast for the latter, greater 
 in number than his majority, were received in violation of the pro- 
 visions of the registry act, chap. 445, Laws of 1864. . . . The verdict 
 being in favor of the defendant, the complainant moved in this court 
 for a new trial, on the ground of alleged errors in the rulings of the 
 circuit court on questions of evidence. . . , 
 
 Dixon, C. J. : "The exception taken to the ruling of the Court ex- 
 cluding the question put to the witness Newbauer, involves a point 
 of very considerable importance. It is, whether a person generally 
 qualified under the constitution and laws to be a voter, but disqualified 
 by reason of his non-compliance with requirements of the registry act, 
 to vote at a particular election, and who was notwithstanding per- 
 mitted to vote at such election, can be compelled, against his will, to 
 
 II — Compare the authorities cited in W., 52214. 
 
Na. 456, SUNDRY privileges. 457 
 
 disclose in a court of justice the name of the person for whom Ke 
 voted. At the request of the defendant's counsel, the Court instructed 
 the witness that he might decline to answer the question if he saw fit. 
 He declined, and the plaintiff excepted to the decision of the Court. 
 Does the privilege of the secret ballot, conceding it to exist, extend 
 to a person who voted illegally? In answering this question, it is plain 
 that no distinction can be made between different individuals or classes 
 of individuals who vote in actual violation of the law. We cannot 
 discriminate between such as have some or most of the requisite legal 
 qualifications to entitle them to vote and those who have none. If one 
 person who votes illegally may claim the privilege, then all may do 
 so. Can a person who under no circumstances would have been en- 
 titled to vote, but who nevertheless did vote, claim the privilege? Can 
 such an one, who procures his vote to be received by fraud or force, 
 or through the mistake, inadvertence or corruption of the inspectors, 
 claim the privilege? In reason and justice we say not; and if he 
 cannot, then any other person who votes, having no legal right, can- 
 not, even though the giving and receiving of the vote involves no 
 moral guilt or intentional violation of the law on the part of either 
 the voter or inspectors. The turning point of the inquiry is, whether 
 the privilege is confined to persons voting lawfully. We think that 
 it is. It is said to spring from the policy of the statute, which author- 
 izes legal voters, but no others, to vote by ballot. It would seem to 
 be a most obvious perversion of this policy, were the privilege extended 
 to persons not within the statute, but who acted in direct opposition 
 to it. Thus we think that the peculiar right or immunity of the lawful 
 voter, growing out of the policy of the law with regard to such per- 
 sons, cannot be claimed by one who is not a lawful voter."^^ 
 
 COOK'S TRIAL (1696). 
 
 13 How. St. Tr. 334. 
 
 A juror was asked by the defendant whether the juror had said 
 that he believed Cook- to be guilty. Att. Gen.: "My lord, he must not 
 ask the jury that question, whether they have declared before, 
 *"** that they will find him guilty; that is to make them guilty of 
 a misdemeanor.'' Serj. Darnall: "Is it any misdemeanor for me to 
 say, I think or believe such a man is guilty?" ... I think any man, my 
 lord, that comes to serve upon the jury, may be asked any question that 
 does not make him guilty of any offence or crime, or liable to any 
 punishment: Now if any of these gentlemen that are returned upon 
 this pannel, before the summons have declared their opinion that the 
 prisoner is guilty, or ought to suffer; with submission, the prisoner 
 may ask such a question, whether he have said so, yea or no?" 
 
 12 — Compare the authorities cited in W., § 2215. 
 
458 PRIVILEGED TOPICS. No. 456. 
 
 Just. Powell: "He cannot upon a Voyer Dire be asked any such 
 question.'' 
 
 Just. Rokeby: "It is not denied to be a material objection, but it 
 must be made out by proof." 
 
 L. C. J. Treby: "You put it too large, brother Darnall; you may 
 ask upon a Voyer Dire, whether he have any interest in the cause; 
 nor shall we deny you liberty to ask whether he be fitly qualified, 
 according to law, by having a freehold of sufficient value. But that 
 you can ask a juror or a witness every question that will not make him 
 criminous, — that is too large. Men have been asked whether they 
 have been convicted and pardoned for felony, or whether they have 
 been whipped for petty larceny; but they have not been obliged to 
 answer; for though their answer in the affirmative will not make them 
 criminal or subject them to a punishment, yet they are matters of in- 
 famy; and if it be an infamous thing, that is enough to preserve a 
 man from being bound to answer. A pardoned man is not guilty, his 
 crime is purged; but merely for the reproach of it, it shall not be put 
 upon him to answer a question whereon he will be forced to forswear 
 or disgrace himself. . . . The like has been observed in other cases of 
 odious and infamous matters which were not crimes indictable.'' 
 
 Common Law Practice Commission, Jervis (later C. J.), Cock- 
 burn (later C. J.), Martin (later B.), Walton, Bramwell (later B.), 
 and Willes (later J.), Second Report, 22 (1853): "With re- 
 * ' gard to questions which do not tend to expose the witness to 
 prosecution or punishment, but which tend to degrade his character 
 by imputing to him misconduct not amounting to legal criminality or 
 the having been convicted of a crime the punishment of which has 
 been undergone, the law of England (according to the better authori- 
 ties) in like manner protects the witness from answering, unless the 
 misconduct imputed has reference to the cause itself. Should this rule 
 be maintained? On the one hand, the witness may have been recently 
 convicted of perjury or some other form of the crimen falsi; he may 
 have become infamous by his offences against the law or against so- 
 ciety; he may have, to his own knowledge, acquired a bad repute for 
 habitual mendacity; and it may be highly important that the jury who 
 are to weigh his testimony should be made aware of the drawbacks 
 which thus attach to it. On the other hand, it cannot be denied that 
 it would be an extreme grievance to a witness to be obliggd to disclose 
 past transactions of life which may have been long forgotten, and 
 to expose his character afresh to evil report and obloquy when by 
 subsequent conduct he may have recovered the good opinion of the 
 world. As the law now stands, the question may be put, but the wit- 
 ness is not bound to answer; but if he does answer and denies the 
 imputation, his denial is conclusive and cannot be controverted. It 
 has been proposed to take away the privilege of the witness and to 
 
No. 458. SUNDRY PRIVILEGES. 459 
 
 compel liirti to answer. We cannot bring outselves entirely to concur 
 in this view. We have already pointed out the effect which the dread 
 of an inquiry of this nature may have in deterring a witness from 
 appearing in court. To this may be added that, while under the pres- 
 ent system the refusal to answer has practically the effect of an admis- 
 sion, the consequence of compelling the witness to answer would not 
 improbably be to induce him to give an absolute denial, which would 
 not be open to contradiction. On the balance, then, of these opposing 
 considerations, we recommend that the existing law should be main- 
 tained, except that where the question relates to the conviction of the 
 witness of perjury or any other form of crimen falsi and the witness 
 either denies the fact or refuses to answer, the conviction should be 
 allowed to be proved."^ 
 
 LORD MELVILLE'S TRIAL (1806). 
 Hans. Pari. Deb., ist Ser., VI, lyo, 222, 234, 243, 249. 
 
 Questions put to the Judges: "i. Whether according to law a wit- 
 ness can be required to answer a question relevant to the matter in 
 issue, the answering which has no tendency to accuse himself, 
 *"° but the answering which may establish or tend to establish that 
 he owes a debt recoverable by civil suit? 2. Whether according to law 
 a witness can be required to answer a question relevant to the issue, 
 the answering of which would not expose him to a criminal prosecution, 
 "but might expose him to a civil suit at the instance of His Majesty for 
 the recovery of profits derived by him from the use or application of 
 public money contrary to law?" 
 
 Erskine, L. C, in giving his answer, said that "he had been for 
 seven-and-twenty years engaged in the duties of a laborious profession, 
 and while he was so employed, he had the opportunity of a more ex- 
 tensive experience in the courts than any other individual of his time. 
 It is true that in the profession there had been, and there now were, 
 men of much more learning and ability than he would even pretend to; 
 but success in life often depended more upon accident, and certain 
 physical advantages, than upon the most brilliant talents and profound 
 erudition. It was very singular that, during these twenty-seven years, 
 he had not for a single day been prevented in his attendance on the 
 courts by any indisposition, or corporeal infirmity. Within much the 
 greater part of this period, he has been honoured by a gown of preced- 
 ency, and in consequence of this privilege, had not only been engaged 
 in every important cause, but had conducted causes of this description 
 during that period in the court of King's Bench. . . . Although his ex- 
 perience was equal not only to any individual judge on the bench, but 
 
 I — Compare the authorities cited in W., Nos. 120-126), and for privilege against 
 5 2216. Compare also the rules for scope self-crimination (.post, Nos. 473-480). 
 ■of cross-examination to character (ante, 
 
460 PRIVILEGED TOPICS. No. 458, 
 
 to all the judges, with their collective practice; vet, he ngypr Wnpyy ^ 
 singl £_ j ) bjcction to have been takcn -t n an intprrng fitft r y prnp nspfl, hc- 
 r^iicpj4ig_rfpiy to it would xaider the witness responsible in a civil 
 suit. It was true, that in Mr. Peake's book, which had been frequently 
 "cited on the present occasion, there was a note by which it should ap- 
 pear that an objection of this kind had been taken by the late Chief 
 Justice Kenyon; but, notwithstanding his high opinion of the minute 
 accuracy and great learning of that reporter, he thought he had, in 
 this instance, been guilty of a mistake, on two grounds: 1st, because 
 he [Erskine] himself had been counsel in the cause and had no recol- 
 lection of the circumstances: 2dly, because, if that note were correct. 
 Lord Kenyon must have been guilty of an obvious contradiction of his 
 own principles and sentiments, as they appeared even on the face of 
 the same report. . . . Notwithstanding some difference of opinion among 
 high authorities, among persons for whom he had the greatest venera- 
 tion, yet he could not help thinking that the law itself was unembar- 
 rassed from these contradictions. He considered it so far precise, clear, 
 and perspicuous, that it was necessary no new law should be promul- 
 gated, otherwise than in the form of a declaratory law, by which it 
 should be announced what had been the law, what was the law, and what 
 ought to be the law, and what shall be the law of the land as to this 
 important particular."" 
 
 2. Privilege of the Party-Opponent in Civil Cases. 
 
 Sir William Blackstone, Commentaries, III, 382 (1768) : "The 
 principal defects [of the common-law trial system] seem to be, I, The 
 want of a complete discovery by oath of the parties. This each of 
 ^^^ them is now entitled to have by going through the expense and cir- 
 cuity of a court in equity. ... It seems the height of judicial absurdity 
 
 2 — To the questions above quoted the an- self or to expose him to any penalty or 
 
 swer was **Yes," by eight judges, Sutton, forfeiture, but the answering of which 
 
 B., Graham, B., Chambre, J., Le Blanc, J., may establish or tend to establish that he 
 
 Heath, J., Macdonald, C. B., Ellenbor- owes a debt or is otherwise subject to a 
 
 ough, C. J. of K. B., Erskine, L. C, with civil suit at the instance of His Majesty 
 
 Lord Eldon; and "No," by five judges, or of some other person or persons. Be it 
 
 Grose, J., Lawrence, J., Rooke, J., Thomp- therefore declared. That a witness cannot 
 
 son, B., and Mansfield, C. J. of C. P.; -by law refuse to answer a question rele- 
 
 the opinions of this majority seem to have vant to the matter in issue, the answering 
 
 been treated as carrying conclusive weight; of which has no tendency to accuse him- 
 
 their tenor was, in general, that the privi- self or to expose him to penalty or for- 
 
 lege extended only to "such questions as feiture of any nature whatsoever, by rea- 
 
 would expose him to a criminal prosecu- son only or on the sole ground that the 
 
 tion or to a penalty or forfeiture." Par- answering of such question may establish 
 
 liament then passed a statute as follows; or tend to establish that he owes a debt 
 
 1806, St 46 Geo. Ill, c. 37: "Whereas or is otherwise subject to a civil suit either 
 
 doubts have arisen whether a witness can at the instance of His Majesty or of any 
 
 by law refuse to answer a question rele- other person or persons." 
 vant to the matter in issue, the answering Compare the authorities cited in W.> 
 
 of which has no tendency to accuse him- § 2223. 
 
No. 460. CIVIL PARTY-OPPONENT. 461 
 
 that iri the same cause between the same parties in the examination of 
 the same facts a discovery by the. oath of the parties should be permitted 
 on one side of Westminster Hall and denied on the other; or that the 
 judges of one and the same court should be bound by law to reject such 
 ai species of evidence if attempted on a trial at bar, but when sit- 
 ting the next day as a court of equity should be obliged to hear such 
 examination read and to found their decrees upon it. In short, within 
 the same country, governed by the same laws, such a mode of inquiry 
 should be universally admitted or else universally rejected. ... A sec- 
 ond defect [in the common-law mode of trial] is of a nature somewhat 
 similar to the' first, the want of a compulsive power for the production 
 of books and papers belonging to the parties. ... In mercantile trans- 
 actions especially, the sight of the party's own books is frequently de- 
 cisive ; as the day-book of a trader, where the transaction was recently 
 entered as really understood at the time, though subsequent events may 
 tempt him to give it a different color. And as this evidence may be 
 finally obtained and produced on a trial at law by the circuitous course 
 of filing a bill in equity, the want of an original power for the same 
 purposes in the Courts of law is liable to the sahie observations as were 
 made on the preceding article." 
 
 STOREY v. LORD LENNOX (1836). 
 
 I Keen 341, 350. 
 
 Lord Langdale, M. R. : "From the mode of proceeding at common 
 law, a man with the full knowledge of facts which would show the truth 
 andi justice of the case may, by concealing these facts within his 
 * own breast and merely for want of disclosure or evidence, suc- 
 
 ceed in recovering a demand which he knows to be satisfied or in resist- 
 ing a demand which he knows to be just. This conduct is by courts 
 of equity considered to be against conscience; and they accordingly en- 
 able the party in danger of "being oppressed by it to obtain from his 
 adversary a discovery of the facts within his knowledge or belief by 
 filing a proper bill for the purpose ; and by the general rule the defend- 
 ant to a proper bill for discovery is bound to make a complete disclosure 
 of everything he knows or believes in relation to the matter in ques- 
 tion.' . . . According to the general rule which has always prevailed in 
 this court, every defendant is bound to discover all the facts within his 
 knowledge, and to produce all documents in his possession which are 
 material to the case of the plaintiff."* 
 
 3 — The ensuing sentence is quoted from chancery rule making the opponent com- 
 
 the same judge's opinion in Flight v. Roh- pellable, see ante, Nos. 388, 396. 
 inson, 8 Beav. 22, 23 (1S44). Compare the authorities cited in W., 
 
 4 — For the statute's which abolished the §§ 2218, 22ig. 
 privilege at common law and adopted the 
 
462 PRIVILEX3ED TOPICS. No. 461. 
 
 KYNASTON v. EAST INDIA CO. (1819). 
 3 Swanst. 248. 
 
 Bill to recover tithes payable from the defendant's premises. De- 
 nial that the premises were within the plaintiff's parish. Decree for 
 the plaintiff, and reference to a master to ascertain the value of 
 ^"■'^ the premises. On the sixth of February 1819, the plaintiff hav- 
 ing moved, before the Vice-Chancellor, that Joseph Sills and William 
 Smith might be at liberty to inspect the several warehouses and prem- 
 ises, mentioned in the pleadings, in the occupation of the defendants, 
 situate in Gravel Lane, Petticoat Lane, Harrow Alley, Cutler's Street, 
 and Parker's Gardens, respectively, preparatory to their being examined 
 as witnesses on the part of the plaintiff; the Vice-Chancellor ordered 
 a reference to the Master to inquire and state to the Court, whether an 
 inspection of the several warehouses and premises, mentioned in the 
 pleadings to be in the occupation of the defendants in Gravel Lane, 
 Petticoat Lane, Harrow Alley, Cutler's Street, and Parker's Gardens, 
 respectively, by the said Joseph Sills and William Smith, preparatory 
 to their being examined as witnesses, upon interrogatories carried into 
 the Master's office by the plaintiff, in pursuance of the decree, was neces- 
 sary for the Master to form his conclusion upon the matters referred 
 to him. From this order the defendants appealed to the Lord Chan- 
 cellor. Pending the appeal, by his report, dated the 24th day of March 
 1819, the Master certified that he was of opinion, that an inspection of 
 the several warehouses and premises, mentioned in the order of refer- 
 ence, by the said Joseph Sills and Robert Smith, preparatory to their 
 being examined as witnesses, upon the interrogatories exhibited by the 
 plaintiff before him for the examination of witnesses, in respect of the 
 matters referred to him by the decree, was necessary for him to form 
 a satisfactory conclusion upon the matters so referred to him. On the 
 7th of April 1B19, the Vice-Chancellor ^Sir John Leach] confirmed the 
 Master's report, and ordered that the defendants should permit Joseph 
 Sills and Robert Smith to inspect the several warehouses and premises 
 in the occupation of the defendants, in Gravel Lane, Petticoat Lane, 
 Harrow Alley, Cutler's Street, and Parker's Gardens, respectively, pre- 
 paratory to their being examined as witnesses upon interrogatories 
 carried into the Master's office by the plaintiff. From this order also the 
 defendants appealed to the Lord Chancellor. 
 
 The Solicitor General [Sir Samuel Shepherd], Sir Arthur Piggott 
 and Mr. Wyatt, in support of the appeal: "The order for inspection is 
 •unprecedented, unauthorized by practice or principle. The Court has 
 no jurisdiction to compel the owners of houses to open them for the 
 admission of adverse witnesses, undertaking to furnish evidence against 
 them on the question of their value. Parties may be themselves ex- 
 amined on interrogatories ; but their freehold is protected from the entry 
 of strangers. The order can be supported only on the principle that 
 
No. 461. CIVIL PARTY-OPPONENT. 463 
 
 the Court is competent to compel the East India Company to open their 
 doors; every house subject to the same claim of tithe must be subject 
 to the same inspection. If the parties acted on such an order, and the 
 East India Company brought an action for trespass, how could the 
 defendants protect themselves by an order of this Court? What prece- 
 dent is there of such a defence? The instances in which the legis- 
 lature has, for the purpose of revenue, compelled inspection of houses, 
 afford no proof of a like power in this Court. If the proprietor of a 
 mine, in working underground, has worked into the mine of his neigh- 
 bour, and taken ore not belonging to him, inspection may be ordered; 
 but the Court then acts at the instance of the owner of the mine invaded 
 and of the ore taken. A tithe-owner is undoubtedly entitled to enter 
 on the land subject to tithe for the purpose of seeing the tithe set out, 
 and carrying it away, but the analogy of that right cannot authorize 
 the plaintiff in deputing strangers to enter and inspect the defendants' 
 freehold. On the principle of this order every tithe-owner may file a 
 bill, not according to the established practice for discovery, but for in- 
 spection." 
 
 Messrs. Wetherell and Palmer, for the plaintiff: "The principle is 
 that wherever, in respect of the property of one individual, a right 
 accrues to another which cannot be measured without inspection of 
 the subject of property, the Court is competent to compel the proprietor 
 to permit that inspection, as indispensable to the purposes of justice.'' 
 
 L. C. Eldon : "Though novel in circumstances, this case is not novel 
 in principle. The purpose of inspection is to inform the conscience of 
 the Court, and witnesses appointed by it are entitled to be considered 
 as its officers. . . . The question is, whether in such a case the Court 
 must not have the means of ascertaining by the inspection of witnesses 
 the nature of the premises, in order to ascertain their value ; and whether 
 the law meant to leave it thus, that the defendants were to state in 
 their answer their opinion, and to send their own surveyor to give his 
 opinion of the value, but on the other hand the plaintiff was to be in 
 such circumstances that he could examine no witnesses who knew with 
 precision the value of the premises. ... It is admitted that where a 
 man has a right to receive a certain sum in the pound on the value of 
 trees, the Court has ordered inspection of the trees ; so in the case of 
 a commission on diamonds, inspection would be ordered of the diamonds. 
 I remember a case where, on the suggestion that a machine used by 
 the defendant was an infringement of a patent, the Court ordered the 
 defendant to allow an entry into his premises for the purpose of ascer- 
 taining by inspection whether the machine was an infringement. . . . 
 If without this proceeding the Court must miscarry, and cannot attain 
 the justice of the case without inspection, my opinion is that, on prin- 
 ciple, it has authority to order inspection, taking care to impose as little 
 inconvenience as possible on those on whom orders is made."" 
 
 S — Compare the authorities cited in W., § 22ai, and No. 397, ante. 
 
464 PRIVILEGED TOPICS. No. 462. 
 
 UNION PACIFIC R. CO. v. BOTSFORD (1890). 
 141 U. S. 250, II Sup. 1000. 
 
 The original action was by Clara L. Botsford against the Union 
 Pacific Railway Company, for negligence in the construction and care 
 of an upper berth in a sleeping car in which she was a passenger, 
 *"'^ by reason of which the berth fell upon her head, bruising and 
 wounding her, rupturing the membranes of the brain and spinal cord, 
 and causing a concussion of the same, resulting in great suffering and 
 pain to her in body and mind, and in permanent and increasing injuries. 
 Answer, a general denial. Three days before the trial (as appeared 
 by the defendant's bill of exceptions) "the defendant moved the Court 
 for an order against the plaintiff, requiring her to submit to a surgical 
 examination, in the presence of her own surgeon and attorneys, if she 
 desired their presence; it being proposed by the defendant that such 
 examination should be made in manner not to expose the person of the 
 plaintiff in any indelicate manner; the defendant at the time informing 
 the Court that such examination was necessary to enable a correct diag- 
 nosis of the case, and that without such examination the defendant 
 would be without any witnesses as to her condition. The Court over- 
 ruled said motion, and refused to make said order, upon the sole ground 
 that this Court had no legal right or power to make and enforce such 
 order." To this ruling and action of the Court the defendant duly ex- 
 cepted, and after a trial, at which the plaintiff and other witnesses tes- 
 tified in her behalf, and which resulted in a verdict and judgment for 
 her in the sum of $10,000, sued out this writ of error. 
 
 Gray, J.: "No right is held more sacred, or is more carefully 
 guarded, by the common law, than the right of every individual to the 
 possession and control of his own person, free from all restraint or 
 interference of others, unless by clear and unquestionable authority of 
 law. . . . The inviolability of the person is as much invaded by a com- 
 pulsory stripping and exposure as by a blow. To compel any one, and 
 especially a woman, to lay bare the body, or to submit it to the touch 
 of a stranger, without lawful authority, is an indignity, an assault and 
 a trespass; and no order or process commanding such an exposure or 
 submission was ever known to the common law in the administration 
 of justice between individuals, except in a very small number of cases, 
 based upon special reasons and upon ancient practice, coming down 
 from ruder ages, now mostly obsolete in England, and never, so far as 
 we are aware, introduced into this country. In former times, the Eng- 
 lish courts of common law might, if they saw fit, try by inspection or 
 examination, without the aid of a jury, the question of the infancy, or 
 of the identity of a party; or, on an appeal of maihem, the issue of 
 maihem or no maihem; and, in an action of tresspass for maihem, or 
 for an atrocious battery, might, after a verdict for the plaintiff, and 
 on his motion, and upon their own inspection of the wound, super visum 
 
No. 463. CIVIL PARTY-OPPONENT. 465 
 
 vulneris, increase the damages at their discretion. In each of those 
 exceptional cases, as Blackstone tells us, 'it is not thought necessary 
 to summon a jury to decide it,' because 'the fact, from its nature, must 
 be evident to the court, either from ocular demonstration or other irre- 
 fragable proof,' and, therefore, 'the law departs from its usual resort, 
 the verdict of twelve men, and relies on the judgment of the court 
 alone.' The inspection was not had for the purpose of submitting the 
 result to the jury, but the question was thought too easy of decision 
 to need submission to a jury at all. 3 Bl. Com. 331-333. The au- 
 thority of courts of divorce, in determining a question of impotence as 
 affecting the validity of a marriage, to order an inspection by surgeons 
 of the person of either party, rests upon the interest which the public, 
 as well as the parties, have in the question of upholding or dissolving 
 the marriage state, and upon the necessity of such evidence to enable 
 the court to exercise its jurisdiction; and is derived from the civil and 
 canon law, as administered in spiritual and ecclesiastical courts, not 
 proceeding in any respect according to the course of the common law. 
 The writ de ventre inspiciendo, to ascertain whether a woman convicted 
 of a capital crime was quick with child, was allowed by the common 
 law, in order to guard against the taking of the life of an unborn 
 child for the crime of the mother. The only purpose, we believe, for 
 which the like writ was allowed by the common law, in a matter of 
 civil right, was to protect the rightful succession to the property of a 
 deceased person against fraudulent claims of bastards, when a widow 
 was suspected to feign herself with child in order to produce a sup- 
 posititious heir to the estate, in which case the heir or devisee might have 
 this writ to examine whether she was with child or not, and, if she 
 ■was, to keep her under proper restraint till delivered, i Bl. Com. 456; 
 Bac. Ab. Bastard, A. . . . But the learning and research of the coun- 
 sel for the plaintiff in error have failed to produce an instance of its 
 ever having been considered, in any( part of the United States, as suited 
 to the habits and condition of the people. 
 
 "So far as the books within our reach show, no order to inspect 
 the body of a party in a personal action appears to have been made, or 
 even moved for, in any of the English courts of common law, at any 
 period of their history," 
 
 WANEK V. WINONA (1899). 
 
 78 Minn. 98, 80 N. W. 851. 
 
 Mitchell, J.: "This action was brought to recover damages for 
 personal injuries caused by the alleged negligence of the city in allow- 
 ing a public sidewalk to become and remain out of repair, and 
 ■*"'* in an unsafe condition for public travel. The only question which 
 we find it necessary to consider is whether the trial Court erred in 
 
 denying the application of the deTenaaht~Io' require the plaintiff to 
 
466 PRIVILEGED TOPICS. No. 463. 
 
 submit himself tq_a_ghysical examination by two or more competent 
 ind disinterested physicians, to beliarnea'byThe court in order to ascer- 
 tain the nature and extent of liis"Tnjufies. '~TKe~aTIege3~injuries~wefe 
 sustained Octoberi 19, 1898. The plaintiff's notice of his claim for dam- 
 ages was served on the city November 14, 1898. This action was 
 commenced December 9 of the same year, and defendant's application 
 for a physical examination was made May i, 1899, the first day of the 
 term at which the action was tried. The complaint alleged that the 
 injuries would be permanent, and the existence or nonexistence, of .aJL., 
 least some ot.the injuries could only be ascertained by a physical ex- 
 amination of plaintiff's person. ^ The" trial court denied the applica- 
 tion upon the grounds, as shown by his memorandum: Jiirst, that_lie- 
 had no power in any case to order a party to submit to a.^pl iYsica l 
 "-exaBimation of his person ; and, second, even if he had the powerj__he 
 would, in the exercise of his discretion, have refused, under the circum- 
 stances of the case, to grant defendant's application. 
 - -'We--are very clearly of the opinion that the Court has the power, 
 in a case of this kind, to order the plaintiff to submit to a physical 
 \ examination of his person, . . . and to require the plaintiff to submit 
 •V to it under the penalty of having his action dismissed in case he refuses 
 to do so. We are aware that there are some eminent authorities to the 
 contrary, but, with all due deference to them, we cannot avoid think- 
 ing that they base their conclusion upon a fallacious and somewhat 
 sentimental line of argument as to the inviolability and sacredness of 
 a man's own person, and his right to its possession and control free 
 from all restraint or interference of others. This, rightly understood, 
 is all true, but his right to the possession and control of his person 
 is no more sacred than the cause of justice. When a person appeals 
 to the State for justice, tendering an issue as to his own physical con- 
 dition, he impliedly consents in advance to the doing justice to the other 
 party, and to make any disclosure which is necessary to be made in 
 order that justice may be done. No one claims that he can be com- 
 pelled to submit to such an examination. But he must either submit 
 to it, or have his action dismissed. Any other rule in these personal 
 injury cases would often result in an entire denial of justice to the 
 defendant, and leave him wholly at the mercy of the plaintiff's witnesses. 
 In very rhany cases the actual nature and extent of the injuries can 
 only be ascertained by a physical examination of the person of the in- 
 jured party. Such actions were formerly vervinfr ec | uent. bu t of late 
 years they constrtate~tm^7TfTKe"largest "branches of le^al industry, and 
 are'rrot infrequently attempted to be sustained by malingering on the 
 part of the plaintiff; 'ialse testimony, or the very iinreliaBle" spe culations 
 -of -so-called 'medical experts.' To allow the plaintiff in such cases, if 
 he sees fit todispltjrh'is^iljuries'to the jury, to call in as many friendly 
 physicians as he pleases, and have them examine his person, and then 
 produce them as expert witnesses on the trial, but at the sametime 
 deny to the defendant the right in any case to have a physical examina- 
 
No. 465. CIVIL PARTY-OPPONENT. 467 
 
 ti on of plaintiff's per son, and leave hi m , wholly at ,the mercy oL such 
 witnesses as the plaintiff sees fit to call, constitutes a denial of justice 
 too gross,^ our judgment, to, be . tolerated for one moment."^ 
 
 J. Privilege of Husband and Wife? 
 
 Sir Edward Coke, Commentary upon Littleton, 6b ( 1629) : "He 
 that loseth liberam legem becometh infamous and can be no witness; 
 or if the witness be an infidell, or of non-sane memory, or not 
 of discretion, or a partie interested, or the like. But oftentimes 
 a man may be challenged to be of a jury that cannot be challenged to 
 be a witnesse, and therefore, though the witnesse be of the neerest 
 alliance or kindred, or of counsell, or tenant, or servant to either partie, 
 or any other exception that maketh him not infamous, or to want un- 
 derstanding or discretion, or a partie in interest, though it be proved 
 true, shall not exclude the witnesse to be sworne. . . . Note, it hath 
 been resolved by the justices that a wife cannot be produced either 
 against or for her husband, qua sunt duce animae in came una; and it 
 might be a cause of implacable discord and dissention between the hus- 
 band and wife, and a meane of great inconvenience; but in some cases 
 women are by law wholly excluded to bear testimony, as to prove a 
 man to be a villain." 
 
 KNOWLES v. PEOPLE (1867). 
 
 15 Mich. 408, 413. 
 
 Campbell, J.: "Defendant was convicted in the circuit court for 
 the county of Lenawee of a charge of larceny, in stealing cattle. . . . 
 Defendant having introduced testimony tending to prove that 
 * he was at home at the time when the larceny was said to have 
 
 been committed, and there being evidence tending to show that his 
 wife was home at the same time, the CWrt refused to instruct the 
 jury that they had no right to consider the omission of defendant to 
 call her as a witness, nor allow the omission to prejudice him in their 
 deliberation, and, on the contrary, instructed them that such neglect 
 might be taken into consideration against him. There is no doubt that 
 a jury may regard with suspicion a failure of a party to produce testi- 
 mony which is in his power, and which would throw light upon mat- 
 ters left without other proper evidence. But this rule has never been 
 applied to those cases where the law, on grounds of public policy, has 
 established privileges against being compelled to produce it. It is well 
 
 I — Compare the authorities cited in W., each other's favor, see ante, Nos. 74-76. 
 § 2220. For the privilege as to marital communi- 
 
 2 — For the disqualification to testify in cations, see post, Nos. 509, 510. 
 
468 PRIVILEGED TOPICS. No. 465. 
 
 settled that where a man avails himself of his privilege, to decline 
 answering questions, no unfavorable inference can be allowed to be 
 drawn from his silence, and in Came v. Litchfield, 2 Mich. 340, the 
 refusal of the circuit court to prevent counsel from commenting on such 
 a claim of privilege, was held to be sufficient ground for reversing a 
 judgment. 
 
 "Our statute, in changing the common law rule concerning the tes- 
 timonial incapacities of husband and wife, has not made them com- 
 petent witnesses for or against each other without restriction, but has 
 prohibited either from testifying without the consent of the other, and 
 from divulging mutual confidences without mutual consent. It is very 
 manifest that the rule which prevents a wife from being compelled to 
 testify against her husband is based on principles which are deemed 
 important to preserve the marriage relation as one of full confidence 
 and affection, and that this is regarded as more importaut to the public 
 welfare than that the exigencies of lawsuits should authorize domestic 
 peace to be disregarded, for the sake of ferreting out some fact not 
 within the knowledge of strangers. If the omission to call a wife upon 
 the stand is to be treated as warranting the conclusion that her testi- 
 mony would be adverse, then the privilege is entirely destroyed, and 
 she will have to be called at all events. The power of declining to call 
 such a witness is not reserved to protect from awkward disclosures, 
 but out of respect to the better feelings of humanity, which impel all 
 right-minded persons to shrink from any needless exposure to the ordeal 
 of a public examination, of persons who would be unnatural and un- 
 worthy if they did not feel a very strong bias in favor of their consorts. 
 The law, in permitting husbands and wives to testify on behalf of each 
 other, can not have contemplated that any moral coercion should enable 
 others to force them into the witness box. Lord Mansfield, in Blatch 
 V. Archer, Cowp. 63, admitting the general rule that an omission to 
 produce accessible evidence is suspicious, declared that it would have 
 been very improper, without necessity, to call a son in a case where 
 his father was interested, and held that the principle did not apply to 
 such a state of things. Yet a son was always competent for any party. 
 But the relation of husband and wife has always been held as one 
 which should not be exposed to any needless influences which might 
 interfere with the most unreserved confidence and security." 
 
 Commissioners of Common Law Procedure, Second Report, 13 
 ( 1853) • "^ more difficult question [than that of admitting them in 
 each other's favor] arises whe« we proceed to consider whether 
 **® it should be made competent to an adverse party to call a htfi- 
 band or wife as witness against one another. The; case would no doubt 
 be of rare occurrence; when it did, it would in the greater number of 
 instances be where husband and wife have separated and are on bad 
 terms with one another. In such cases the mischief apprehended from 
 
No. 467. HUSBAND AND WIFE. 469 
 
 the interruption of domestic happiness becomes out of the question. 
 But suppose the husband and wife living together on the usual terms; 
 here the identity of interest between them will deter an adverse party 
 from calling one against the other, except under very peculiar and 
 pressing circumstances and when the fact to be proved is certain in 
 its character and clearly within the knowledge of the witness. . . . But 
 if there be such a fact in the knowledge of one of two married persons, 
 so material to the cause of the adverse party as to make it worth his 
 while to run the risk of calling so hostile a witness, it becomes matter 
 of very serious consideration whether justice should be allowed to be 
 defeated by the exclusion of such evidence. It is clear that nothing 
 but an amount of mischief outbalancing the evil of defeated justice 
 can warrant the exclusion of testimony necessary to justice. What, 
 then, is the mischief here to be apprehended ? The possibility of resent- 
 ment of a husband against a wife for testifying to facts prejudicial to 
 his interest. But it is obvious that such resentment could only be felt 
 by persons prepared to commit perjury themselves and to expect it to be 
 committed in their behalf. Such instances, we believe, would be very 
 rare; and we do not think that a regard to the feelings of individuals 
 of this class, or the amount of mischief likely to arise from a disregard 
 of them, is sufficient to compensate for the loss which in many cases 
 may result from the exclusion of the evidence. . . . The conclusion to 
 which the foregoing observations leads us is that husband and wife 
 should be competent and compellable to give evidence for and against 
 one another on matters of fact as to which either could now be exam- 
 ined as a party in the cause."* 
 
 REX V. CLIVIGER (1788). 
 2 T. R. 263. 
 Two justices removed by an order, James Whitehead, otherwise 
 Shepherd, and Margery, his wife, from the township of Anlezark to 
 Cliviger, both of the county of Lancaster; and, on appeal to the 
 * ' sessions, that order was confirmed, subject to the opinion of the 
 Court on the following case. As to so much of the order as respected 
 the settlement of Margery, therein named to be the wife of James White- 
 head, the respondents proved the marriage of the paupers, James and 
 Margery, on the i6th September 1786, and then closed their case. The 
 appellants insisted, that James Whitehead, the pauper, had a former wife, 
 Ellen, living at the time of his marriage with Margery, and called 
 James Whitehead to prove it; who swore that he never was married 
 to the said Ellen. The appellants then offered to call the said Ellen, 
 stating her to be the lawful wife of said James Whitehead, to contra- 
 dict what he, her supposed husband, had sworn; and to swear that she 
 
 3 — For the statutes which have modified pendix. For the history of the privilege, 
 or abolished the privilege, see post, Ap- see W., § 2227. 
 
470 PRIVILEGED TOPICS. No. 467. 
 
 was his lawful wife; but the sessions, under the circumstances, refused 
 to receive her evidence. The appellants then went into evidence of 
 cohabitation between the said Ellen and James for a period of three 
 or four years ; of declarations and acts of James acknowledging the said 
 Ellen to be his wife, and amongst others, an indenture of apprentice- 
 ship, dated 24th August 1785, was proved, by which the said James and 
 the said Ellen, therein described to be his wife, bound out apprentice 
 one Thomas Williams, the son of the said Ellen, by one Joseph Williams, 
 formerly her husband, but then deceased. The question referred to the 
 Court is. Whether the said Ellen was a competent witness under these 
 circumstances or not? 
 
 5". Heywood and Topping, in support of the order of sessions : "The 
 real question before the Court is. Whether a wife is a competent wit- 
 ness, even in the case of third persons, to prove her husband guilty of 
 bigamy? Besides the objection of her being interested in the question- 
 which was put to her, inasmuch as she was called to prove, that a person 
 whom she called her husband was liable to her debts, and for her main- 
 tenance; there is another objection to her testimony arising from the 
 policy of the law, which will not permit Husband and wife to give evi- 
 dence tending to the crimination of each other. Here the evidence of 
 the wife went to charge her husband with bigamy. . . . The argument 
 which may be urged on the other side, that the husband could not 
 be affected by this evidence, inasmuch as it could not be made use o£ 
 on any other occasion, cannot have any weight; for if it tends in any 
 degree to prejudice him, that is sufficient. It would certainly have 
 raised impressions against him, and indeed it would have been the duty 
 of the justices to have committed him after having heard it. They may 
 possibly be some cases where a wife may give evidence on behalf of 
 third persons, which may obliquely affect her husband, but certainly 
 none where it tends to impute any crime on him." 
 
 Bearcroft, Cockell, Serj. and Johnson, contra: "In the case of an 
 indictment for bigamy, the first wife's evidence is not admissible, be- 
 cause it goes to charge her husband directly. But here nothing that the 
 woman could say could affect her husband ; no prosecution could be 
 grounded on her testimony; neither was there any benefit to herself." 
 
 AsHHURST, J.: "There is no doubt but that husband and wife may 
 prove their own marriage on a question of settlement. But this case 
 rests on particular cfrcumstances. A marriage in fact has been proved 
 with one woman; the question was, Whether she was the pauper's law- 
 ful wife? Then another woman was called to prove that she had been 
 before married to him, and was in truth his lawful wife. That creates 
 the doubt. Whether it was competent to the wife to prove that her 
 husband had been twice married? Under these circumstances, I am of 
 opinion that she was not a competent witness to that purpose. . . . 
 I lay all consideration of interest out of the case. . . . But the ground 
 of her incompetency arises from a principle of public policy, which 
 does not permit husband and wife to give evidence that may even tend. 
 
No. 468, HUSBAND AND WIFE. 471 
 
 to criminate each other. The objection is not confined merely to cases 
 where the husband or wife are directly accused of any crime, but even 
 in collateral cases, if their evidence tends that way, it shall not be 
 admitted. Now here the wife was called to contradict what her hus- 
 band had before sworn, and to prove him guilty of perjury as well 
 as bigamy; so that the tendency of her evidence was to charge him 
 with two crimes. However though what she might then swear could 
 not be given in evidence on a subsequent trial for bigamy, yet her 
 evidence might lead to a charge for that crime and cause the husband 
 to be apprehended." 
 
 REX V. ALL SAINTS (1817). 
 
 6 M. & 5. if>5, ipp. 
 
 Upon appeal the sessions confirmed an order for the removal of 
 Esther Newman, otherwise Esther Willis, from the parish of Chelten- 
 ham, in the county of Gloucester, to the parish of All Saints, 
 in the city of Worcester, subject to the opinion of this Court 
 on the following case: The appellants having produced the pauper, 
 the counsel for the respondents began their case by calling a witness, 
 named Ann Willis, for the purpose of proving that she had been mar- 
 ried in Ireland to one George Willis. The counsel for the appellants 
 objected to the competency of this witness, declaring themselves pre- 
 pared with evidence of the subsequent marriage of the same George 
 Willis to Esther the pauper; but the Court determined to admit the 
 witness. 
 
 Scarlett and Campbell, in support of the order of sessions, argued 
 that Ann Willis was a competent witness to prove her marriage with 
 George Willis. "In order to maintain this position it was not necessary 
 to dispute the rule that husband and wife cannot be witnesses for 
 each other, nor against each other, provided the rule were limited to 
 cases where the interest of husband and wife is the matter in contro- 
 versy, as where either of them is partly to the record. But suppose an 
 issue between A. and B., and A. calls a witness, who proves certain 
 facts, and also calls the wife of that witness, with a view of confirm- 
 ing his evidence; if the wife, instead of confirming, should contradict 
 her husband, this testimony, according to the argument below at the 
 sessions, must be rejected, otherwise it may tend to shew her husband 
 guilty of perjury. But would it not be a strange anomaly in the law, 
 if the competency of a feme covert to be a witness should depend upon 
 whether her evidence would or would not agree with the evidence of 
 her husband, his interest not being in litigation? It seems, indeed, as 
 if some such doctrine had led to the decision of Rex v. Cliviger." 
 
 Jervis, Taunton, and Twiss, contra, argued that Rex v. Cliviger 
 was decisive of this question; "for although in that case the husband 
 was one of the parties included in the order of removal, and had been 
 
472 PRIVILEGED TOPICS. No. 468. 
 
 called as a witness, and denied his former marriage, in which respect 
 it differs from the present case, yet having been decided upon the 
 principle that the law does not permit husband and wife to give evi- 
 dence that may even tend to criminate each other, that decision entirely 
 disposes of the present case." 
 
 Lord Ellenborough, C. J.: "With the best attention I have been 
 able to give this case, I cannot discover any incompetence of the 
 first wife to give evidence touching the fact of her marriage. . . . She 
 affirmed that he was her husband. How does this criminate him? 
 Does it contradict anything which he had sworn to before, so as to 
 involve him in the crime of perjury. Not at all. Does it even relate 
 to a matter on which he had given previous evidence? By no means. 
 . . . The objection rests only on the language of the King v. Cliviger, 
 that it may tend to criminate him, for it is not an immediate tendency 
 inasmuch as what she stated could not be used in evidence against 
 him. ... If we were to determine, without regard to the form of pro- 
 ceeding, whether the husband was implicated in it or not, that the 
 wife is an incompetent witness as to every fact which may possibly 
 have a tendency to criminate her husband, or which connected with 
 other facts may perhaps go to form a link in a complicated chain of 
 evidence against him, such a decision, as I think, would go beyond all 
 bounds." 
 
 Bayley, J.: "There was no objection arising out of the policy of 
 the law because by possibility her evidence might be the means of 
 furnishing information and might lead to inquiry and perhaps to the 
 obtaining of evidence against her husband. It is no objection to the 
 information that it has been furnished by the wife. ... I am not sure, 
 that the import of the expression 'tendency to criminate' was very 
 accurately defined in that case [of R. v. Cliviger]. It was probably not 
 understood as meaning that the wife's evidence could be used against 
 her husband, for we know that this could not be so. . . . Nothing which 
 the wife proved on this occasion could be the direct means of founding 
 a prosecution against her husband, although it might afford the means 
 of procuring evidence against him; but such a collateral consequence 
 is not a sufficient objection.""^ 
 
 CALDWELL v. STUART (1832). 
 2 Bail. 574. 
 Action of trover for the recovery of certain slaves, which the plain- 
 tiff claimed by parol gift from the defendant's testator, who was her 
 step-father. The only witness to prove the gift was Mrs. Stuart, 
 * the widow of the testator, and she was objected to, as incom- 
 
 petent by reason of her relation to the testator. The presiding judge 
 
 I — Roane, J., in Baring v. Reeder, i tions, where the husband is no party, the 
 Hem. & M. 134, 168 (i8o6): "I take the wife may be called as a witness even to 
 rule on this subject to be .that, in civil ac- facts which if proved in another action to 
 
No. 470. HUSBAND AND WIFE. 4.73 
 
 overruled the objection; and the plaintiff obtained a verdict, which the 
 defendant now moved to set aside, on the ground that the testimony of 
 the widow ought to have been excluded. 
 
 Johnson, J. : " We are very clea rly of opinion that Mrs^ Stuart was 
 properly_admitted asa witness] The rule, wHiclT'excludes the wifefrbm 
 giving evidence for, or against the husband, is founded, in some degree, 
 upon the legal identity of the husband and wife. . . . Domestic quiet 
 and harmony of families have suggested the propriety of excluding it 
 where it would be volunteered. . . . Neither the rule, nor any of the rea- 
 sons upon which it proceeds, have any the most remote application here. 
 The husband is no party ; he has ceased to have any interest in _tem- 
 pdral concerns. The defendant,~the executor, represents the interests 
 of the creditors, legatees,'bf 'distributees, asjhe case may be, and not the 
 hiisband's. ThelFe is no dang«^of matrimonial discord; nor is there 
 any violation of confidence?"^ "" '~~ 
 
 SOULE'S CASE (1828). 
 5 Me. 407, 408. 
 
 The husband was indicted for an aggravated assault and battery 
 
 upon the wife; an3"up6n the trial, before. Preble, J. atj;he:.last_tg.rm in 
 
 this county, he admitted the wile as a competent witness for the 
 
 *''' State; but saved the point for the consideration of all the Judges. 
 
 Mellen, C. J. : "In this case the only question is whether the wife of 
 the defendant was properly admitted as a witness against him on the 
 trial, to prove the assault and battery upon her, charged in the indict- 
 ment. It is well known that, as a general principle, husband and wife 
 are not legal witnesses against each other. , . . From the general rule 
 some exceptions have been established, founded on the necessity of the 
 case. For ins tance, if a wife could_not_be_gdmitted_-tQ_-testify--agaiftst 
 jhe^u sBand as to tTireatene d_ or _executed yiplence and^ahuse upon her 
 person, he ^ould play , the tyrant and_ brute at his pleasure, and with 
 perfect security beat, wound, and torture her at times and in places 
 wfien" and where no witnesses could be present nor assistance be ob- 
 tained. Reasons of policy do not certainly extend so far as in such 
 casesTo disqualify her from feeing a witness against fiirri. '.'V .So far 
 as the general incompetency of the wife is founded on the idea that 
 her testimony, if received, would tend to destroy domestic peace, and 
 
 which her husband is a party, and by evi- of that policy which, in respect to the har- 
 
 dence other than her own, may go to charge mony to be desired in the marriage state, 
 
 him. The unavailing testimony of the has given rise to the rule in question." 
 
 wife in such a case is entirely impotent Compare the authorities cited in W., 
 
 as it relates to the husband, producing him §§ 2234-2236. 
 
 no loss, and consequently exciting in him 2 — Compare the authorities cited in W., 
 
 no displeasure, will not violate the reason § 2237. 
 
474 PRIVILEGED TOPICS. No. 470. 
 
 introduce discord, animosity, and confusion in its place, the principle 
 loses its influence when that peace has already become wearisome to a 
 passionate, despotic, and perhaps intoxicated husband, who has done all 
 in his power to render the wife unhappy and destroy all mutual affec- 
 tion."^ 
 
 4. Privilege Against Self -Crimination. 
 
 TRIAL OF WILLIAM PENN AND WILLIAM MEAD (1670). 
 
 6 How. St. Tr. 951, 957. 
 
 Indictment for disturbing the peace by street-preaching. Witness: 
 "My lord, I saw a great number of people, and Mr. Penn, I suppose, was 
 speaking; I saw him make a motion with his hands, and heard 
 some noise, but could not understand what he said. But for Capt. 
 Mead, I did not see him there." Rec. : "What say you, Mr. Mead, were 
 you there?" Mead: "It is a maxim in your own law, 'Nemo tenetur ac- 
 cusare seipsum,' which, if it be not true Latin, I am sure it is true 
 English, 'that no man is bound to accuse himself'."* 
 
 Statutes. United States, Constitution 1787, Amendment V.: "No 
 person . . . shall be compelled in any criminal case to be a witness 
 472 against himself'.^ 
 
 Sir J. F. Stephen, History of the Criminal Law, I, 342, 441, 535, 
 542, 565 (1883) : "In the old Ecclesiastical Courts and in the Star 
 Chamber [the ex officio oath] was understood to be and was used 
 ' as an oath to speak the truth on the matters objected against the 
 defendant — an oath, in short, to accuse oneself. It was vehemently 
 contended by those who found themselves pressed by this oath that it 
 was against the law of God, and the law of nature, and that the maxim 
 'nemo tenetur prodere seipsum' was agreeable to the law of God, and 
 
 3 — Compare the authorities cited in W., himself, or fdrnish evidence against him- 
 
 § 2239. self, or give evidence against himself; 
 
 4 — For the history of the privilege, see and it is contended that the terms of the 
 
 W., § 2250. Constitution of the United States, and of 
 
 5 — Blatchford, J., in Counselman v. the constitutions of Georgia, California, 
 
 Hitchcockj 142 U. S. 547 (1892); "It and New York are more restricted. But 
 
 is contended on the part of the appellee we are of opinion that, however this dif- 
 
 that . . . the constitutions of those ference may have been commented on in 
 
 States [of Virginia, Massachusetts, and some of the decisions, there is really, in 
 
 New Hampshire] give to the witness a spirit and principle, no distinction arising 
 
 broader privilege and exemption than is out of such difference of language." 
 
 granted by the Constitution of the United For other constitutional and statutory 
 
 States, in that fteir language is that the provisions, see W., § 2252, and the stat- 
 
 witness shall not be compelled to accuse utes quoted post, Appendix. 
 
No. 473, SELF-CRIMINATION. 475 
 
 part of the law of nature. In this, I think, as in most other discus- 
 sions of the kind, the real truth was that those who disliked the oath 
 had usually done the things of which they were accused, and which 
 they regarded as meritorious actions, though their judges regarded 
 them as crimes. People always protest with passionate eagerness against 
 being deprived of technical defences against what they regard as bad 
 law, and such complaints often give a spurious value to technicalities 
 when the cruelty of the laws against which they have offered protec- 
 tion has come to be commonly admitted. . . . [But by the institution 
 of our privilege against self-crimination] the result of the whole is that 
 as matters stand the prisoner is absolutely protected against all judi- 
 cial questioning before or at the trial. . . . This is one of the most 
 characteristic features of English criminal procedure, and it presents 
 a marked contrast to that which is common to, I believe, all continental 
 countries. It is, I think, highly advantageous to the guilty. It con- 
 tributes greatly to the dignity and apparent humanity of a criminal trial. 
 It effectually avoids the appearance of harshness, not to say cruelty, 
 which often shocks an English spectator in a French court of justice; 
 and I think that the fact that the prisoner cannot be questioned stimu- 
 lates the search for independent evidence. During the discussions which 
 took place on the Indian Code of Criminal Procedure in 1872, some 
 observations were made on the reasons which occasionally lead native 
 police officers to apply torture to prisoners. An experienced civil officer 
 observed, 'There is a great deal of laziness in it. It is far pleasanter 
 to sit comfortably in the shade rubbing red pepper into a poor devil's 
 eyes than to go about in the sun hunting up evidence.' This was a 
 new view to me, but I have no doubt of its truth. The evidence in an 
 Englishi trial is, I think, usually much fuller and more satisfactory than 
 the evidence in such French trials as I have been able to study. The 
 Procureur de la Republique and Juge d'Instruction, their power of hold- 
 ing inquiries, drawing up proces-verhaux, examining suspected persons 
 secretly, and without informing them even of the accusation or evidence 
 against them, taking depositions behind their backs, and keeping them 
 in solitary confinement till (whatever soft words may be used about it) 
 every effort has been made to extort a confession from them, are con- 
 trasted in the strongest way with everything with which we are famil- 
 iar, and which I have described, in detail, in the preceding chapters. To 
 keep a man in solitary confinement and question him till he is driven 
 into a confession is not the less torture because the process is protracted 
 instead of being acute. . . . The following account of the matter is 
 given by M. Helie : 'The magistrate who puts questions to the accused 
 and asks explanations from him has the right to interrogate him for 
 the purpose of extracting his excuse or his confession of guilt. He 
 should, without harassing or confusing him, but at the same time while 
 requiring a disclosure, encourage his freedom of utterance. He should, 
 in short, with the most complete impartiality, seek solely to get at the 
 truth. The interrogatory must be neither an argument nor a combat; 
 
476 PRIVILEGED TOPICS. No. 473. 
 
 that is by means of the issue. The main object is to ascertain the 
 theory of the defence, and thus to determine the details of the issue and 
 the points therein which are to be established.' He adds, that though 
 the interrogatory is not essential, yet the President can interrogate the 
 accused either before or after the witnesses are heard, the former being 
 the common course. . . . Whatever may be the law on the subject, the 
 fact unquestionably is that the interrogation of the accused by the Presi- 
 dent is not only the first, but is also the most prominent, conspicuous, 
 and important part of the whole trial. Moreover, all the reports of 
 French trials which I have seen, and I have read very many, suggest 
 that the views taken by M. Helie as to the proper object of the interroga- 
 tory, and the proper method of carrying it on, are not shared by the 
 great majority of French Presidents of Cours d'Assises. The accused 
 is cross-examined with the utmost severity, and with continual rebuke, 
 sarcasms, and exhortations, which no counsel in an English court would 
 be permitted by any judge who knew and did his duty to address to 
 any witness. This appears to me to be the weakest and most objec- 
 tionable part of the whole system of French criminal procedure (except 
 parts of the law as to the functions of the jury). It cannot but make 
 the judge a party — and what is more, a party adverse to the prisoner; 
 and it appears to me, apart from this, to place him in a position essen- 
 tially undignified and inconsistent with his other functions. . . . This 
 comparison of French and English criminal procedure naturally sug- 
 gests the question. Which of the two is the best? To a person accus- 
 tomed to the English system and to English ways of thinking and feeling 
 there can be no comparison at all between them. However well fitted 
 it may be for France, the French system would be utterly intolerable 
 in England. . . . The whole temper and spirit of the French and the 
 English differs so widely, that it would be rash for an Englishman 
 to speak of trials in France as they actually are. We can think 
 of the system only as it would work if transplanted into England. It 
 may well be that it not only looks, but is, a very different thing in France. 
 . . . The best way of comparing the working of the two systems is by 
 comparing trials which have taken place under them. For this pur- 
 pose I have given at the end of this work detailed accounts of seven 
 celebrated trials, four English and three French, which afford strong 
 illustrations of the results of the two systems. It seems to me that 
 a comparison between them shows a superiority of the English system 
 even more remarkably than any general observations which may be 
 made on the subject. In every one of the English cases the evidence 
 is fuller, clearer, and infinitely more cogent than it is in any one of the 
 French cases, — notwithstanding which, far less time was occupied by 
 the English trials than by the French ones, and not a word was said or 
 a step taken which any one can represent as cruel or undignified." 
 
No. 474. SELF-CRIMINATION. 477 
 
 a. Scope of the Privilege. 
 
 PAXTON V. DOUGLAS (1809), 
 16 Ves. Jr. 23P, 242, ip id. 22$. 
 
 The plaintiffs filed the bill as creditors of Peter Douglas, deceased, 
 on behalf of themselves and all the other creditors, &c., an exception 
 was taken to the Master's Certificate, that he had allowed in- 
 *'* terrogatories for the examination of Charles Christie; claiming 
 as a bond creditor of Douglas. The interrogatories, as allowed by the 
 Master, inquired, 1st, generally as to the consideration for the bond 
 for 2600I. ; whether money, goods, &c. : adly, whether Christie was not 
 before and at the date of the bond entitled to four-sixteenths parts of 
 the ship Belvidere, in the service of the East India Company; and was 
 not the commander of the said ship; whether Douglas did not contract 
 for the purpose of such shares for 2400I. : whether that was a fair price : 
 whether it was paid ; as to the circumstances of payment, &c. : 3d, 
 whether Douglas, or his nephew James Peter Fearon, at the same time 
 made some and what proposal or offer to purchase from him the com- 
 mand of the said ship, for any and what sum; and how such sum was 
 to be paid and secured: 4th, whether he treated, or made, or concluded, 
 any and what bargain with Douglas or Fearon, for the sale of the com- 
 mand to Fearon for the sum of 2600/. or any other and what sum: 5th, 
 whether, and when he (Christie,) resigned the command: and was not 
 Fearon, and when, and by whose recommendation or procurement, ap- 
 pointed to the command: 6th, whether he had, or not, proved the bond 
 under a Commission of Bankruptcy against Fearon; and if not, why? 
 
 Christie objected to answer these interrogatories; on the ground 
 that his answer might criminate himself; and subject him to a forfeit- 
 ure under the East India Company's Bye-Laws ; declaring, that no owner 
 or part-owner of any ship, or any commander, or other person, shall 
 directly or indirectly sell, or take any gratuity or consideration, nor 
 shall any person or persons buy, pay, or give, any gratuity or considera- 
 tion, for the command of any ship or ships, to be freighted to the 
 Company; and in case any such contract, payment, or gift, shall be 
 made, the commander, or intended commander, concerned therein, shall 
 from henceforth be incapable of being employed, or of serving the Com- 
 pany in any capacity whatsoever. . . . 
 
 Mr. Richards and Mr. Rouple, for the Report, insisted that. . . . 
 some of the interrogatories, the first, for instance, going to the con- 
 sideration, generally, could not be objected to. 
 
 Eldon, L. C. : "If a series of questions are put, all meant to estab- 
 lish the same criminality, you cannot pick out a particular question and 
 say, if that alone had been put, it might have been, answered. . . He 
 is at liberty to protect himself against answering, not only the direct 
 question whether he did what was illegal, but also every question fairly 
 
478 PRIVILEGED TOPICS. No. 474. 
 
 appearing to be put with a view of drawing from him an answer con- 
 taining nothing to affect him except as it is one link in a chain of proof 
 that is to affect him.""- 
 
 AARON BURR'S TRIAL (1807). 
 Robertson's Rep. I, 208, 2^4. 
 
 Treason; a cipher letter was placed ' before the witness, who had 
 been secretary to the defendant, and he was asked by Mr. McRea, for 
 the prosecution : "Do you understand the contents of that paper ?" 
 *'* Mr. Williams, for the defendant: "He objects to answer. He 
 says that, though that question may be an innocent one, yet the coun- 
 sel for the prosecution might go on gradually, from one question to 
 another, until he at last obtained matter enough to criminate him. If 
 a man know of treasonable matter, and do not disclose it, he is guilty 
 of misprision of treason. . . . The knowledge of the treason, again 
 comprehends two ideas, — ^that he must have [i] seen and understood 
 • [2] the treasonable matter. To one of these points Mr. W. is called 
 upon to depose ; if this be established, who knows but the other elements 
 of the crime may be gradually unfolded so as to implicate him?" 
 
 Marshall, C. J., sanctioning the witness' refusal: " According to 
 their [the prosecution's] statement, a witness can never refuse to answer 
 any question~~iinTess~TKar HTiswCT~TmC5finecfe3~m^ otheFTesf^^n^C- 
 would bs sufficient to convict. him of a'crime." ; This wouM be'rend^ng- 
 the rulealmost perfectly worthless. Manylinks freq^-^jtly rf^p"'" 
 that chain of testimony which is necessary to convict any indiyiduaLgf 
 a-crime;" It "appears- to the Gourt to be-the-trwe-'setlgfBr'the rule that 
 no witness is compellable to furnish any one of them against himself. 
 It is certainly not only a possible but a probable case that a witness, 
 by disclosing a single fact, may complete the testimony against him- 
 self, and to every effectual purpose accuse himself as entirely as he 
 would by stating every circumstance which would be required for his 
 conviction. That fact of itself might be unavailing; but all other facts 
 without it would be insufficient. While that remains concealed within 
 
 I — V. C. Leach, in Green v. Weaver, i either conducive to the general result or 
 Sim. 404, 430 (1827); "[L. C. Eldon, in it is unimportant and irrelevant. But I 
 Paxton V. Douglas,^ went there to the ex- take Lord Eldon to have meant (and which 
 tent of stating, not only that a man should perhaps is not very fully explained in the 
 not make a discovery that would subject report, and which satisfied my mind a good 
 himself directly to penalty or criminal pros- deal) not that every fact which may lead 
 ecution, but that every question leading to the effect of subjecting a defendant to 
 incidentally to that conclusion would be a penalty, is objectionable; but where the 
 likewise equally objectionable. Now when sole gist and object of the suit is to con- 
 one comes to look at that as a proposition vict a man in a penalty, where there 
 unexplained, one cannot help seeing that would be no other purpose but to have re- 
 the true principle of a bill in equity is lief in a court of equity on the footing 
 that every statement of fact in every bill of penalty, that, as a Court of equity does 
 ought to be 'incidentally leading* to the not relieve on penalty, it will not give 
 same conclusion, ultimately, as the prayer any incidental discovery." 
 of the bill does lead to; for the fact is 
 
No. 476. SELF-CRIMINATION. 479 
 
 his bosom, he is safe; but draw it from thence, and he is exposed to a 
 prosecution. The rule which declares that no man is compellable to 
 accuse himself would most obviously be infringed by compelling a wit- 
 ness to disclose a fact of this description. What testimony may be 
 possessed, or is attainable, against any individual, the Court can never 
 know. It would seeni, then, that the Court ought ,never to compel^ a 
 witness to give an answer which discloses a fact that would form a neces- 
 sary and. essential part of a crime which is' punishable, by. the laws."^ 
 
 WARD V. STATE (1829). 
 
 2 Mo. 120, 122. 
 
 McGirk, C. J.: "The case appears by the record to be, that at the 
 late term of the Circuit Court for the county of St. Louis, the grand 
 jury for said county caused a subpoena to be issued for said Ward, 
 *'" to appear before them and testify generally, without saying in 
 what particular matter or cause he was to testify. Ward accordingly 
 appeared, and was sworn to give evidence to the grand jury. He went 
 before the grand jury to testify. The first question asked by the fore- 
 man of the grand jury was this: 'Do you know of any person or per- 
 sons having bet at a faro table in this county, within the last twelve 
 months ?' To which the witness answered, 'I do.' The foreman then 
 desired the witness to tell what person or persons have so bet, other than 
 himself, and not naming himself. The witness declined answering, say- 
 ing that he could not answer without implicating himself. Ward was 
 then directed by the Court to answer the requirements of the grand 
 jury, but not to name himself as a better; which he refused, alleging 
 that to answer thus would implicate himself. Whereupon the Court 
 committed him to prison, till he should consent to give the evidence 
 required, and till the further order of the Court. A writ of error is 
 sued on, a supersedeas asked for. . . . Was the witness right in refus- 
 ing to answer the question on the gpround that the answer would impli- 
 cate himself? The record shows that the game of faro is played with 
 cards, by one person as banker against any number of persons, each 
 person playing for himself, without any aid from the others, against 
 the banker; and that there is no common interest among those persons 
 playing against the banker. Thus it appears that each player against 
 the bank is separate and independent of all others. The inquiry made 
 by the grand jury is 'Tell who bet at the game of faro, not naming 
 yourself.' The answer of the witness is (supposing him to be A) that 
 'if I tell that B, C, and D played, it will be either full or partial evi- 
 dence that I played.' This is the whole argument of the case, — an argu- 
 ment which I think is totally untenable in law and reason. . . . The 
 question is, 'Who did you see betting at faro except yourself?' It is be- 
 
 2 — Compare the authorities cited in W., § 2260. 
 
480 PRIVILEGED TOPICS. No. 476. 
 
 lieved that a direct answer in the negative to this would be, 'I saw no 
 one bet at faro.' This answer, I think, all will allow, does not accuse 
 him. But suppose his answer must be, that he saw B bet at faro, can 
 it not be true that though B bet, yet he, the witness, did not? Does the 
 mere fact that one man saw another commit crime, prove in law or 
 reason that he who saw the crime committed was a participator? . . . 
 But in this case it is said, if the witness is bound to tell who bet at the 
 game, without naming himself, then those persons who are named will 
 be examined as to the fact, whether he bet; and if the witness is not 
 compelled to name who did bet, then they will remain unknown to the 
 grand jury, and cannot be examined whether the witness bet. I under- 
 stand this doctrine to be grounded more on the fear of retaliation than 
 on any sound ' principle of law. Will the law permit a man to keep 
 offences and offenders a secret, lest the offenders should in their turn 
 give evidence against him? I have looked into the cases cited at the 
 bar, and I am unable to perceive any principle, in any of them, which 
 ought to vary the foregoing opinion."' 
 
 BOYD v. UNITED STATES (1885). 
 
 116 U. S. 616, 6 Sup. 437, 524. 
 
 Information for evasion of customs dues by fraudulent invoicing. 
 On the order of the trial Court, the invoice was compelled to be pro- 
 duced by the defendant for inspection in court, under St. June 
 *'" 22, 1874, §5, Rev. St. 1878, §724 (_ante No. 396), requiring pro- 
 duction on motion, and taking the facts to be confessed as alleged, in 
 case of failure to produce. This order was held unconstitutional, under 
 the Fifth and also the Fourth Amendments; the present caise was hdd 
 to be in effect a criminal proceeding. Waite, C. J., and Miller, J., 
 dissented, solely to the extent of holding that Court's order was not for 
 a search nor a seizure and therefore not within the prohibition of the 
 Fourth Amendment. The opinion of Bradley, J., for the majority, 
 gave the following exposition of reasons : "The principal question, how- 
 ever, remains to be considered. It is a search and seizure, or, what is 
 equivalent thereto, a compulsory production of a man's private papers, 
 to be used in evidence against him in a proceeding to forfeit his prop- 
 erty for alleged fraud against the revenue laws— is such a proceeding 
 for such a purpose an 'unreasonable search and seizure' within the mean- 
 ing of the Fourth Amendment of the Constitution ? or, is it a legitimate 
 proceeding? It is contended by the counsel for the government, that 
 it is a legitimate proceeding, sanctioned by long usage, and the authority 
 of judicial decision. ... In order to ascertain the nature of the proceed- 
 ings intended by the Fourth Amendment to the Constitution under the 
 terms 'unreasonable searches and seizures,' it is only necessary to recall 
 the contemporary or then recent history of the controversies on the 
 
 3 — Compare the authorities cited in W., § 2262. 
 
No. 477. SELF-CRIMINATION. 481 
 
 subject, both in this country and in England. The practice had ob- 
 tained in the colonies of issuing writs of assistance to the revenue 
 officers, empowering them, in their discretion, to search suspected places 
 for smuggled goods, which James Otis pronounced the worst instru- 
 ment of arbitrary power, the most destructive of English liberty, and 
 the fundamental principles of law, that ever was found in an English 
 law book;' since they placed 'the liberty of every man in the hands 
 of every petty officer.' This was in February, 1761, in Boston, and the 
 famous debate in which it occurred was perhaps the most prominent event 
 which inaugurated the resistance of the colonies to the oppressions of 
 the mother country. 'Then and there,' said John Adams, 'then and 
 there was the first scene of the first act of opposition to the arbitrary 
 claims of Great Britain. Then and there the child Independence was 
 born.' These things, and the events which took place in England imme- 
 diately following the argument about writs of assistance in Boston, were 
 fresh in the memories of those who achieved our independence and 
 established our form of government. In the period from 1762, when 
 the North Briton was started by John Wilkes, to April, 1766, when 
 the House of Commons passed resolutions condemnatory of general war- 
 rants, whether for the seizure of persons or papers, occurred the bitter 
 controversy between the English government and Wilkes, in which 
 the latter appeared as the champion of popular rights, and was, indeed, 
 the pioneer in the contest which resulted in the abolition of some 
 grievous abuses which had gradually crept into the administration . of 
 public affairs. Prominent and principal among these was the practice 
 of issuing general warrants by the Secretary of State, for searching 
 private houses for the discovery and seizure of books and papers that 
 might be used to convict their owner of the charge of libel. Certain 
 numbers of the North Briton, particularly No. 45, had been very bold 
 in denunciation of the government, and were esteemed heinously libel- 
 lous. By authority of the secretary's warrant Wilkes's house was 
 searched, and the papers were indiscriminately seized. For this out- 
 rage he sued the perpetrators and obtained a verdict of f 1000 against 
 Wood, one of the party who made the search, and £4000 against Lord 
 Halifax, the Secretary of State who issued the warrant. The case, 
 however, which will always be celebrated as being the occasion of Lord 
 Camden's memorable discussion of the subject, was that of Entick v. 
 Carrington and Three Other King's Messengers, reported at length 
 in 19 Howell's State Trials, 1029. The action was trespass for enter- 
 ing the plaintiff's' dwelling-house in November, 1762, and breaking open 
 his desks, boxes, &c., and searching and examining his papers. The 
 jury rendered a special verdict, and the case was twice solemnly argued 
 at the bar. Lord Camden pronounced the judgment of the court in 
 Michaelmas Term, 1765, and the law as expounded by him has been 
 regarded as settled from that time to this, and his great judgment on 
 that occasion is considered as one of the landmarks of English liberty. 
 It was welcomed and applauded by the lovers of liberty in the colonies 
 
482 PRIVILEGED TOPICS. No. 477.. 
 
 as well as in the mother country. It is regarded as one of the perma- 
 nent monuments of the British Constitution, and is quoted as such by 
 the English authorities on that subject down to the present time. . . . 
 
 "The principles laid down in this opinion affect the very essence of 
 constitutional liberty and security. They reach farther than the con- 
 crete form of the case then before the court, with its adventitious cir- 
 cumstances ; they apply to all invasions on the part of the government 
 and its employes of the sanctity of a man's home and the privacies of life. 
 It is not the breaking of his doors, and the rummaging of his drawers, 
 that constitutes the essence of the offence; but it is the invasion of his 
 indefeasible right of personal security, personal liberty and private prop- 
 erty, where that right has never been forfeited by his conviction of some 
 public offence, — it is the invasion of this sacred right which underlies 
 and constitutes the essence of Lord Camden's judgment. Breaking 
 into a house and opening boxes and drawers are circumstances of aggra- 
 vation; but any forcible and compulsory extortion of a man's own tes- 
 timony or his private papers to be used as evidence to convict him of 
 crime or to forfeit his goods, it within the condemnation of that judg- 
 ment. In this regard the Fourth and Fifth Amendments run almost 
 into each other. Can we doubt that when the Fourth and Fifth Amend- 
 ments to the Constitution of the United States were penned and adopted, 
 the language of Lord Camden was relied on as expressing the true doc- 
 trine on the subject of searches and seizures, and as furnishing the true 
 criteria of the reasonable and 'unreasonable' character of such seiz- 
 ures? Could the men who proposed those amendments, in the light of 
 Lord Camden's opinion, have put their hands to a law like those of 
 March 3, 1863, and March 2, 1867, before recited? If they could not, 
 would they have approved the 5th section of the act of June 22, 1874, 
 which was adopted as a substitute for the previous laws? It seems 
 to us that the question cannot admit of a doubt. They never would have 
 approved of them. The struggles against arbitrary power in which they 
 have been engaged for more than twenty years, would have been too 
 deeply engraved in their memories to have allowed them to approve 
 of such insidious - disguises of the old grievance which they had so 
 deeply abhorred. . . . 
 
 "We have already noticed the intimate relation between the two 
 amendments. They throw great light on each other. For the 'unreason- 
 able searches and seizures' condemned in the Fourth Amendment are 
 almost always made for the purpose of compelling a man to give evi- 
 dence against himself, which in criminal cases is condemned in the 
 Fifth Amendment; and compelling a man 'in a criminal case to be a 
 witness against himself,' which is condemned in the Fifth Amendment, 
 throws light on the question as to what is an 'unreasonable search and 
 seizure' within the meaning of the Fourth Amendment. And we have 
 been unable to perceive that the seizure of a man's private books and 
 papers to be used in evidence against him is substantially different from 
 compelling him to be a witness against himself. We think it is within 
 
No. 477. SELF-CRIMINATION. 483 
 
 the clear intent and meaning of those terms. . . . As, therefore, suits 
 for penalties and forfeitures incurred by the commission of offences 
 against the law, are of this quasi-criminal nature, we think that they 
 are within the reason of criminal proceedings for all the purposes of 
 the Fourth Amendment of the Constitution, and of that portion of the 
 Fifth Amendment which declares that no person shall be compelled in 
 any criminal case to be a witness against himself; and we are further 
 of opinion that a compulsory production of the private books and papers 
 of the owner of goods sought to be forfeited in such a suit is compelling 
 Jiim to be a witness against himself, within the meaning of the Fifth 
 Amendment to the Constitution, and is the equivalent of a search and 
 seizure — and an unreasonable search and seizure — within the meaning 
 of the Fourth Amendment. ..." 
 
 Miller, J., and Waite, C. J. : "I concur in the judgment of the 
 court, reversing that of the Circuit Court, and in so much of the opinion 
 of this court as holds the 5th section of the act of 1874 void as applicable 
 to the present case. I am of the opinion that this is a criminal case 
 within the meaning of the clause of the Fifth Amendment to the Con- 
 stitution of the United States which declares that no person "shall be 
 compelled in any criminal case to be a witness against himself.' And I 
 am quite satisfied that the effect of the act of Congress is to compel 
 the party on whom the order of the court is served to be a witness 
 against himself. The order of the court under the statute is in effect 
 a subpoena duces tecum, and though the penalty for the witness's failure 
 to appear in court with the criminating papers is not fine and imprison- 
 ment, it is one which may be made more severe, namely, to have charges 
 against him of a criminal nature, taken for confessed and made the 
 foundation of the judgment of the court. That this is within the pro- 
 tection which the Constitution intended against compelling a person to 
 be a witness against himself, is, I think, quite clear. 
 
 "But this being so, there is no reason why this court should assume 
 that the action of the court below, in requiring a party to produce cer- 
 tain papers as evidence on the trial, authorizes an unreasonable search 
 or seizure of the house, papers, or effects of that party. There is in 
 fact no search and no seizure authorized by the statute. No order can 
 be made by the Court under it which requires or permits anything more 
 than service of notice on a party in suit. . . . Nothing in the nature of 
 a search is here hinted at. Nor is there any seizure, because the party 
 is not required at any time to part with the custody of the papers. They 
 are to be produced in court, and, when produced, the United States attor- 
 ney is permitted, under the direction of the court, to make examination 
 in the presence of the claimant, and may offer in evidence such entries 
 in the books, invoices, or papers as relate to the issue. . . . While the 
 framers of the Constitution had their attention drawn, no doubt, to the 
 abuses of this power of searching private houses and seizing private 
 papers, as practiced in England, it is obvious that they only intended to 
 restrain the abuse, while they did not abolish the power. Hence it is 
 
484 ' PRIVILEGED TOPICS. No. 477. 
 
 only unreasonable searches and seizures that are forbidden, and the 
 means of securing this protection was by aboHshing searches under war- 
 rants, which were called general warrants, because they authorized 
 searches in any place, for any thing. This was forbidden, while searches 
 founded on affidavits, and made under warrants which described the 
 thing to be searched for, the person and place to be searched, are still 
 permitted. I cannot conceive how a statute aptly framed to require the 
 production of evidence in a suit by mere service of notice on the party, 
 who has that evidence in his possession, can be held to authorize an 
 unreasonable search or seizure, when no seizure is authorized or per- 
 mitted by the statute." 
 
 STATE V. FLYNN (1858). 
 36 N. H. 64. 
 
 The respondent was indicted for keeping for sale a large quantity 
 — to-wit, ten gallons — of intoxicating liquor, not being an agent for the 
 sale of such liquor, and the liquor not being domestic wine, &c., 
 *'* contrary to the statute, &c. Upon the general issue the State in- 
 troduced evidence tending to show that A. P. Colby, an assistant mar- 
 shall of the city of Manchester, acting under a warrant issued by the 
 police court of said city, which was not produced or offered as evidence, 
 went with assistants to the place occupied by the respondent, on Elm 
 street, in Manchester, and there made search for spirituous liquors. The 
 respondent's counsel then objected to the admission of any evidence 
 of the facts ascertained upon such search, upon the ground that the 
 statute for the suppression of intemperance, so far as it purports to 
 authorize a search for spirituous liquors, particularly the fourth section 
 of the statute, is repugnant to the Constitution of the United States 
 and of this State, and any evidence obtained under such unconstitu- 
 tional enactment is inadmissible, because it is in the nature of admissions 
 made by the respondent under duress, and the respondent is thus com- 
 pelled to furnish evidence against himself; but the Court admitted the 
 evidence. The jury having found a verdict against the respondent, his 
 counsel move for a new trial, by reason of said decision. 
 
 Ball, J.: "The objection made in this case does not go so far as 
 to insist that all evidence obtained under a search-warrant is incompe- 
 tent. ... Its ground is, rather, that information obtained by means 
 of a search-warrant, in a case not authorized by the Constitution, is not 
 competent to be given in evidence, because it has been obtained by com- 
 pulsion from the defendant himself, in violation of that clause of the 
 Constitution which provides that no person shall be compelled to fur- 
 nish evidence against himself. ... It seems to us an unfounded idea 
 that the discoveries made by the officers and their assistants, in the exe- 
 cution of process, whether legal or illegal, or where they intrude upon 
 a man's privacy without any legal warrant, are of the nature of admis- 
 
No. 479. SELF-CRIMINATION. 485 
 
 sions made under duress, or that it is evidence furnished by the party 
 himself upon compulsion. The information thus acquired is not the ad- 
 mission of a party, nor evidence given by him, in any sense. The party 
 has in his power certain mute witnesses, as they may be called, which 
 he endeavors to keep out of sight, so that they may not disclose the facts 
 which he is desirous to conceal. By force or fraud access is gained to 
 them, and they are examined, to see what evidence they bear. That 
 evidence is theirs, not their owner's. ... It does not seem to us pos- 
 sible to establish a sound distinction between that case, and the case of 
 the counterfeit bills, the forger's implements, the false keys, or the 
 like, which have been obtained by similar means. The evidence is in 
 no sense his."* 
 
 UNITED STATES v. CROSS (1892). 
 
 20 D. C. 365, 382. 
 
 Cox, J. : "The defendant was indicted for murdering his wife on the 
 first day of October, 1889. . . . Exception No. 42 was to the admission 
 of the record in the Marshal's office as to the height of the de- 
 *' fendant. It seems that he was called into a room in the Mar- 
 shal's office, and his measurement taken, and that was done after he was 
 convicted at the first trial. ... It appeared that Mr. Carroll was the 
 clerk, and testified that there is a book kept in the office of the Marshal 
 in which all the measurements of convicted persons are kept, and a de- 
 scription of the convicted persons written down and furnished the 
 Department of Justice. They are required to keep that book and the 
 practice was for somebody to take the measurement and call it out to 
 him, and he reduced it to writing. He identified the book produced as 
 the one used, and then gave the measurement of the defendant. That 
 was objected to on several grounds. . . There is still a further objection 
 made to it and that is, that it is an effort to compel the defendant to give 
 evidence against himself. It must be remembered that when this meas- 
 urement was taken, the defendant was convicted, and, therefore, it was 
 not taken with the view to a trial or for use upon a trial. There does 
 not seem to be any reason why it could not be used after it had been 
 taken under the circumstances stated. It could not be contended that 
 the knowledge of the size or height of a man acquired in any other way, 
 for instance by a tailor, could not be used when at the time it was not 
 taken for the purpose of being used as testimony, and it seems to us that 
 a record taken as this was, for a lawful purpose and under the rules of 
 the office, might be made use of afterwards. It does not seem to us that 
 it is corapelfing the defendant to give evidence against himself, although 
 some cases that have been cited to us go very far in that direction. 
 There was one case holding that it was error for the prosecuting officer 
 
 4 — Compare the authorities cited in W., § 2264; and No. 440, ante. 
 
486 PRIVILEGED TOPICS. No. 479. 
 
 to compel the prisoner in court to put his foot into a vessel filled with 
 mud in order to measure it and identify it. That is well enough. It 
 was held in another case that where the officer compelled the defendant 
 to put his foot in certain tracks that were discovered, in order to identify 
 him, that was wrong, as it was compelling him to give evidence against 
 himself, and evidence of that kind so secured, could not be used. We 
 think that is going very far; it is rather too fine. What would be the 
 consequence if such evidence should be entirely excluded? You could 
 not compel a person after his arrest to empty his pockets and disclose a 
 weapon, when the most vital evidence on the part of the Government, in 
 a homicide case, is the possession of the deadly weapon. Could you not 
 compel him to open his pocket-book and exhibit papers that might be 
 conclusive in the case of a forgery, or anything of that sort? We think 
 that officers having a prisoner in custody have a right to acquire informa- 
 tion about him, even by force, and that, for example, when his photo- 
 graph is taken or his measurement taken, it is simply the act of the offi- 
 cers and is not compelling him to give evidence against himself."^ 
 
 COUNSELMAN v. HITCHCOCK (1892). 
 
 142 U. S. 547, 564, 586, 12 Sup. ip5. 
 
 Counselman, being a witness before the grand jury in attendance upon 
 a District Court of the United States, refused to answer questions re- 
 lating to his dealings with certain railroad corporations, on the 
 480 ground that an answer might tend to criminate him. The grand 
 jury was investigating alleged violations by these corporations of the 
 provisions of the Interstate Commerce Act. Having been committed 
 for contempt, and refused his discharge upon a writ of habeas corpus, 
 Counselman appealed to the Supreme Court. The statutes upon which 
 the right to compel answers rested vvere as follows : U. S. Rev. St. 1878, 
 § 860, re-enacting St. Feb. 25, 1868, c. 13 : "No pleading of a party, nor 
 any discovery or evidence obtained from a party or witness by means of 
 a judicial proceeding in this or any foreign country, shall be given in 
 evidence, or in any manner used against him or his property or estate, 
 in any court of the United States, in any criminal proceeding, or for the 
 enforcement of any penalty or forfeiture," except for perjury committed 
 in discovering or testifying as aforesaid ; St. 1887, Feb. i, c. 104, § 9, 
 24 Stat. 379: In any action against a common carrier for damage under 
 this statute, the privilege is not to excuse from testimony; "but such 
 evidence or testimony shall not be used against such person on the trial 
 of any criminal proceeding;" lb. §12 (similar, for investigations by 
 the Interstate Commerce Commission) ; St. 1891, Feb. 10, c. 128, amend- 
 ing St. 1887, Feb. I, c. 104, §12: Upon investigations by the Inter- 
 state Commerce Commission, where the aid of the Circuit Court is re- 
 
 5 — Compare the authorities cited in W., S 2265. 
 
No. 480. SELF-CRIMINATION. 487 
 
 quired to obtain testimony, "the claim that any such testimony or evi- 
 dence may tend to criminate the person giving such evidence shall not 
 excuse such witness from testifying; but such evidence or testimony 
 shall not be used against such person on the trial of any criminal pro- 
 ceeding". 
 
 Blatchford, J. (for the Court) : "It is an ancient principle of the law 
 of evidence, that a witness shall not be compelled, in any proceeding, 
 to make disclosures or to give testimony which will tend to crimi- 
 nate him or subject him to fines, penalties, or forfeitures. ... It remains 
 to consider whether § 860 of the Revised Statutes removes the protection 
 of the constitutional privilege of Counselman. . . . Any evidence which 
 might have been obtained from Counselman by means of his examina- 
 tion before the grand jury could not be given in evidence or used against 
 him or his property in any Court of the United States, in any criminal 
 proceeding, or for the enforcement of any penalty or forfeiture. This, 
 of course, protected him against the use of his testimony against him or 
 his property in any prosecution against him or his property, in any 
 criminal proceeding, in a court of the United States. But it had only 
 that effect. It could not, and would not, prevent the use of his testimony 
 to search out other testimony to be used in evidence against him or his 
 property, in a criminal proceeding in such court. It could not prevent 
 the obtaining and the use of witnesses and evidence which should be 
 attributable directly to the testimony he might give under compulsion, 
 and on which he might be convicted, when otherwise, and if he had 
 refused to answer, he could not possibly have been convicted, "^hf ""n - 
 ^sititutional provision distinctly declares that a person shall not 'be c om- 
 pelled itl ahy cnmmai cas^ to De a witness against himself;' a nd the 
 protection of § 860 is not coextensive with the constitutional provision. 
 Legislation cannot detract from the privilege afforded by the Constitution. 
 We are clearly of opinion that no statute which leaves the party or wit- 
 ness subject to prosecution after he answers the criminating question 
 put to him, can have the effect of supplanting the privilege conferred 
 by the Constitution of the United States. Section 860 of the Revised 
 Statutes does not supply a complete protection from all the perils against 
 which the constitutional prohibition was designed to guard, and is not 
 a full substitute for that prohibition. In view of the constitutional pro- 
 vision, a statutory enactment, to be valid, must afford absolute immunity 
 against future prosecution for< the offence to which the question relates.^ 
 . . . Section 860, moreover, affords no protection against that use of 
 compelled testimony which consists in gaining therefrom a knowledge 
 of the details of a crime, and of sources of information which may sup- 
 ply other means of convicting the witness or party." 
 
 I — Smith, J., In State v. Nowell, 58 N. ... The witness, regarded in law as 
 
 H. 314 (1878): "The legal protection of innocent, if prosecuted for a crime which 
 
 the witness against prosecution for crime he has been compelled by statute to dis- 
 
 disclosed by him is in law equivalent to close, will stand as well as other innocent 
 
 his legal innocence of the crime disclosed. persons; and it was not the design of the 
 
488 PRIVILEGED TOPICS. /; No. 481. 
 
 STATE V. QUARLES (1853). 
 
 IS Ark. 307. 
 
 ScOTT^ J. : "The defendant, having been indicted, under the 8th Sec- 
 tion of the Gaming Act, for betting money on a game of chance called 
 Pocre, interposed the plea of not guilty, in which the State joined, 
 **■'■ which was submitted to a jury. The prosecuting attorney then, 
 with leave of the court, entered a nolle prosequi as to one F. L. Neal, 
 against whom a like prosecution was pending; and having had him 
 sworn as a witness on behalf of the State, and informing him that the 
 ■nolle prosequi as to him had been entered^ and that no indictment, 
 for any similar offence, would be thereafter preferred against him on 
 a charge of its having been committed prior to that day, asked him the 
 following question, to-wit: 'Have you seen the defendant, Hamilton G. 
 Quarles, bet money with any person or persons at a certain game of 
 chance played with cards, called Pocre, in the county of Union, State 
 aforesaid, within twelve months next before the i6th day of April, A. D. 
 1851 ?' This question, the witness refused to answer, 'for fear that he 
 would thereby incriminate himself,' as he alleged; and the Court refus- 
 ing to compel him to do so, as moved on the part of the State, the point 
 of law was saved by bill of exceptions. No further evidence having 
 been offered, the jury found for the defendant, and the State appealed. 
 . . . On the part of the State, it is insisted that the witness ought to 
 have been compelled to answer the question, because, under the law, 
 as altered by our statute, it was not possible that the answer could have 
 had any tendency to criminate him, and as it related to matter that was 
 relevant and material to the issue, it was not his privilege to refuse, 
 because of any tendency of the answer to degrade his character. On 
 the other side, it is contended that our statute has not materially changed 
 the common law rule on this subject; and, moreover, that it is beyond 
 the competent power of the Legislature to enact a law under which a 
 -witness could be compelled to answer a question which he might think 
 Tvould incriminate himself. The provision of the statute in question, is 
 in the following words, to-wit: 'In all cases where two or more persons 
 .are jointly or otherwise concerned in the commission of any crime or 
 misdemeanor, either of such persons may be sworn as a witness in rela- 
 tion to such crime or misdemeanor, but the testimony given by such wit- 
 ness shall in no instance be used against him in any criminal prosecu- 
 tion for the same offence.' ... It is necessary, then, that we shall dis- 
 cover, if we can, the true nature of this constitutional privilege of the 
 witness, before we construe these regulations of the Legislature, which 
 concern it. . . . 
 
 common-law maxim, affirmed by the Bill lawful accusation against his principal, and 
 
 of Rights, that he should stand any better. thus make a perfect answer in bar or 
 
 . . He could plead and show that he abatement of the prosecution against him- 
 
 lad disclosed the same offence upon a self." 
 
No. 481. SELF-CRIMINATION, 489 
 
 "The privilege in question, in its greatest scope, as allowed by the 
 common law — and no one, be he witness or accused, can pretend to claim 
 it beyond its scope at the common law — never did contemplate that the 
 witness might not be proved guiltv of the verv crime ahniit. wh ich he 
 may be called^to testify; b ut only that the witness should not he coni - 
 pelled to produce the evidence to prove, hjmself g fiij lt y of that crime . His 
 privilege, therefore, was not an exemption from the consequences of a 
 crime that he might have committed; but only an exemption from the 
 necessity of himself producing the evidence to establish his own crime. 
 ... So long as ft might be lawful to produce in evidence against aa 
 accused party whatever he might before have voluntarily said as a wit- 
 ness on a prosecution against another, there were no means by which 
 the privilege could be made available short of a claim by the witness to 
 be silent ; and as that was the rule of the common law, this was the com- 
 mon-law mode of making the privilege available. And that silence was 
 but a mode of making the privilege available, and was not of the essence 
 of the privilege itself, is conclusively proven by all that current of en- 
 lightened authority, to which we yield our fullest assent, which hold that 
 the privilege has ceased when the crime has been pardoned, when the 
 witness has been tried and acquitted, or is adjudged g^uilty, or when the 
 prosecution, to which he was exposed, has been barred by lapse of time. 
 . . . When this rule of the common law should have been so changed by 
 legislative enactment, as to make unnecessary any appeal whatever on 
 the part of the witness to his constitutional guarantee — as by regula- 
 tions securing to him otherwise and efifectually all that was guaranteed 
 by the Bill of Rights — he could have no greater reason to complain than 
 he would have had had the law remained unchanged, and under its oper- 
 ation he had never had any occasion to take shelter under the guarantee. 
 And in such case, there would be no more ground upon which to sup- 
 pose a want of competent power in the Legislature to make such regu- 
 lations than there would be in case that body were to repeal the statute 
 of gaming, and by this means deprive the gambler of his constitutional 
 privilege to be accused and tried for a criminal offence, which has no 
 longer existence. In either case, all that could be said would be, as to 
 the gambler, that Courts could not indulge him in the luxury of a con- 
 stitutional accusation and trial, wherein he could display his skill in 
 breaking through the meshes of the law, for the reason that he had 
 committed no offence then known to the law. And as to the witness, 
 that he could not be indulged with the arm of the law to prevent his 
 being ravished of matters tending to a crimination of himself, for the 
 reason that nothing that could be wormed out of him could possibly have 
 that effect. In a word, in neither case, there being no invasion of right 
 or privilege, could there be any place for vindication; and there being 
 no encroachment upon any right retained by the citizen, and no pretence 
 of any transgression of any of the higher powers delegated to the Legis- 
 lature, such acts would be clearly without the pale of prohibition and 
 within the scope of authority. . . . 
 
490 PRIVILEGED TOPICS. No. 4S1. 
 
 "But the Legislature has so changed the common-law rule, by the 
 enactment in question, in the substitution of a rule that the testimony, 
 required to be given by the act, shall never be used against the witness 
 for the purpose of procuring his conviction for the crime or misdemeanor 
 to which it relates, that it is no longer necessary for him to claim his 
 privilege as to such testimony, in order to prevent its being afterwards 
 used against him. And the only question that can possibly arise under 
 the present state of the law, as applicable to the case now before us, is as 
 to whether our statutory regulations afford sufficient protection to the wit- 
 ness, responsive to this new rule and to his constitutional guarantee 
 against compulsory self-accusation. ... In any case where more than or-' 
 dinary precautions may be thought expedient or necessary, the powers of 
 the Circuit Court are ample for the complete preservation of every item of 
 evidence that might be produced. There can then be no ground for appre- 
 hension for the safety of the witness from this source. Nor can there be 
 any greater cause for apprehension from any supposed possibility or 
 probability that the true privilege of the witness may be invaded under 
 the operation of the new rule, by the practical effect of his evidence, 
 either direct or indirect, in opening up to the State, avenues of light 
 leading to evidences of other crimes or misdemeanors, upon which prose- 
 cutions might be afterwards founded against the witnesses, that might 
 otherwise remain closed and unsuggested. Because, when the course of 
 examination would lead to any inquiry as to any matter materially con- 
 nected with any crime or other misdemeanor than that which was the 
 subject of direct inquiry before the court, — as, when such matter might 
 be indispensable for the elucidation of some material matter already 
 produced in evidence by the witness and directly involved in the issue — 
 the witness could claim his privilege as to such matter as fully as if he 
 had been inquired of in chief touching such other crime or misdemeanor. 
 . . . And when the effect of the witness' testimony would not substan- 
 tially amount to the furnishing of an item in a consecutive series of 
 proofs tending to his conviction for another crime or misdemeanor, it 
 would be so remote, contingent, and intangible, as scarcely to be of 
 capacity to be considered of as legitimately resulting from his testimony 
 in legal contemplation, in any sense to invade his true privilege. At any 
 rate, we can safely say, it would not prima facie be so. And the argu- 
 ment to maintain the contrary, can only be supported by assuming that 
 the privilege is absolute and unqualified, which is not only legally untrue 
 as to it, but untrue as to every other right and privilege of the citizen, 
 because they are all but component elements, not of natural liberty, but 
 of civil liberty. And the error of the hypothesis will abundantly appear 
 in the absurdities evolved in carrying out, to its inevitable result, any 
 given right or privilege of the citizen when so based. If, for instance, 
 it were broadly admitted that the privilege in question was so based, and 
 hence would be invaded whenever the incidental effect of the testimony 
 of the witness might in any degree be suggestive of sources of light that, 
 when pursued, might lead to evidences upon which prosecutions might aft- 
 
JNO. 48a. SELF-CRIMINATION. 491 
 
 erwards be founded against the witness for other crimes or misdemeanors : 
 and also, (as contended for on the other side,) that the witness is to be the 
 sole judge of the occasion for the exercise of his privilege, it would be diffi- 
 cult to drive the machinery of government forward in its ordinary 
 course. 6\. Court, for instance, might then lawfully refuse to try a cause, 
 lest its investigation, by the instrumentality of the jury and witnesses, 
 might be suggestive of inquiries that might ultimately lead to evidence 
 upon which a criminal prosecution might be afterwards founded against 
 the presiding judge^ And for a like reason, the Executive might feel 
 lawfully authorizea to withhold his ordinary communications from the' 
 Legislature; and even that body might lawfully decline to perform its 
 ordinary duties upon the same ground — especially if the true privilege 
 not only authorizes the citizen to withhold criminating matter, but also 
 any matter that might have a tendency to degrade — ^because, the very 
 remedies for the future would often be suggestive of the errors' of the 
 past, and these might not all be of an excusable cast. But to all objec- 
 tions of this class, it is a conclusive answer to say that, if, beyond rea- 
 sonable foresight, any such cases should arise under the operation of our 
 statute rule, as would seem to be clearly within its equity, although not 
 embraced within its strict letter, all such special and unlooked-for cases 
 would be as fully within its provisions, as if embraced by its terms, and 
 witnesses in such extreme cases would doubtless obtain full protection 
 from the Courts." ^, 
 
 BROWN V. WALKER (1896). 
 
 161 U. S. 591, 16 Sup. 644. 
 
 Appeal from Brown v. Walker, 70 Fed. 46 (1895), against a ruling 
 of Buffing^on, J., holding to be effectual the following statute, which had 
 been passed in consequence of the decision in Counselman v. 
 '*^^ Hitchcock, supra, No. 480: St. 1893, Feb. 11, c. 83, 27 Stat. 443; 
 "No person shall be excused from attending and testifying or from pro- 
 ducing books, papers, tariffs, contracts, agreements and documents be- 
 fore the Interstate Commerce Commission, or in obedience to the sub- 
 poena of the commission, whether such subpoena be signed or issued by 
 pne or more commissioners or in any cause or proceeding, criminal or 
 otherwise, based upon or growing out of any alleged violation of the 
 act of Congress, entitled 'an act to regulate commerce,' approved Feb. 4, 
 1887, or of any amendment thereof, on the ground or for the reason that 
 the testimony or evidence, documentary or otherwise, required of him 
 may tend to criminate him or subject him to a penalty or forfeiture. But 
 no person shall be prosecuted or subjected to any penalty or forfeiture 
 for or on account of any transaction, matter or thing concerning which 
 lie may testify or produce evidence, documentary or otherwise, before 
 said commission, or in obedience to its subpcena, or the subpoena of either 
 of them, or in any such case or proceeding: Provided, that no person 
 
492 PRIVILEGED TOPICS. No. 482. 
 
 so testifying shall be exempt from prosecution and punishment for per- 
 jury committed in so testifying." The petitioner had been sub- 
 poenaed as a witness before the grand jury, at a term of the 
 District Court for the Western District of Pennsylvania, to testify 
 in relation to a charge then under investigation by that body against 
 certain officers and agents of the Allegheny Valley Railway Com- 
 pany, for an alleged violation of the Interstate Commerce Act. 
 Brown, the appellant, appeared for examination, in response to the 
 subpoena, and was sworn. After testifying that he was auditor of 
 the railway company, and that it was his duty to audit the accounts of 
 the various officers of the company, as well as the accounts of the freight 
 department of such company during the years 1894 and 1895, he was 
 asked the question : "Do you know whether or not the Allegheny Valley 
 Railway Company transported for the Union Coal Company, during the 
 months of July, August and September, 1894, coal from any point on the 
 Low Grade division of said railroad company to Buffalo at a less rate 
 than the established rates in force between the terminal points at the 
 time of such transportation?" To this question he answered: "That 
 question, with all respect to the grand jury and yourself, I must decline 
 to answer for the reason that my answer would tend to accuse and in- 
 criminate myself." The grand jury reported these questions and an- 
 swers to the Court, and prayed for such order as to the Court might 
 seem meet and proper. Upon the presentation of this report, Brown 
 was ordered to appear and show cause why he should not answer the 
 said questions or be adjudged in contempt ; and upon the hearing of the 
 rule to show cause, it was found that his excuses were insufficient, -and 
 he was directed to appear and answer the questions, which he declined 
 to do. Whereupon he was adjudged to be in contempt and ordered to 
 pay a fine of five dollars, and to be taken into custody until he should 
 have answered the questions. The testimony was held to be compellable, 
 and the ruling below affirmed, by a majority of the Court, Fuller, C. J., 
 Harlan, Brewer, Peckham, and Brown, JJ. ; dissenting opinions be- 
 ing filed by Field, J., and by Shiras, J., for Gray and White, JJ., also. 
 The following extracts exhibit the various reasonings accepted: 
 
 Shiras, J., dissenting: "All that can be said is that the witness is 
 not protected by the provision in question from being prosecuted, but 
 that he has been furnished with a good plea to the indictment, which will 
 secure his acquittal. But is that true? Not unless the plea is sus- 
 tained by competent evidence. His condition, then, is that he has been 
 prosecuted, been compelled presumably, to furnish bail, and put to the 
 trouble and expense of employing counsel and furnishing the evidence 
 to make good his plea. . , . Nor is it a matter of perfect assurance that 
 a person who has compulsorily testified, before the commission, grand 
 jury, or court, will be able, if subsequently indicted for some matter or 
 thing concerning which he testified, to procure the evidence that will be 
 necessary to maintain his plea. No provision is made in the law itself 
 for the preservation of the evidence. Witnesses may die or become in- 
 
No. 482. SELF-CRIMINATION. 493 
 
 sane, and papers and records may be destroyed by accident or design. 
 . . . Another danger to which the witness is subjected by the withdrawal 
 of the constitutional safeguard is that of a prosecution in the State 
 courts. The same act or transaction which may be a violation of the 
 interstate commerce act may also be an offense against a State law. 
 Thus, in the present case, the inquiry was as to supposed rebates on 
 freight charges. Such payments would have been in disregard of the 
 Federal statute; but a full disclosure of all the attendant facts (and, if 
 he testify at all, he must answer fully) might disclose that the witness 
 had been guilty of embezzling the moneys intrusted to him for that pur- 
 pose, or it might have been disclosed that he had made false entries in 
 the books of the State corporation in whose employ he was acting. These 
 acts would be crimes against the State, for which he might be indicted 
 and punished, and he may have furnished, by his testimony in the Fed- 
 eral court or before the commission, the very facts, or, at least, clues 
 thereto, which led to his prosecution." 
 
 Field, J., dissenting : "It is contended, indeed, that it was not the ob- 
 ject of the constitutional safeguard to protect the witness against infamy 
 and disgrace. It is urged that its sole purpose was to protect him against 
 incriminating testimony with reference to the offense under prosecution. 
 But we do not agree that such limited protection was all that was se- 
 cured. As stated by counsel of the appellant, 'it is entirely possible, and 
 certainly not impossible, that the framers of the Constitution reasoned 
 that, in bestowing upon witnesses in criminal cases the privilege of 
 silence when in danger of self-incrimination, they would at the same 
 time save him in all such cases from the shame and infamy of confessing 
 disgraceful crimes, and thus preserve to him some measure of self- 
 respect. ... It is true, as counsel observes, that both the safeguard of 
 the Constitution and the common-law rule spring alike from that senti- 
 ment of personal self-respect, liberty, independence, and dignity which 
 has inhabited the breasts of English-speaking peoples for centuries, and 
 to save which they have always been ready to sacrifice many govern- 
 mental facilities and conveniences. In scarcely anything has that senti- 
 ment been more manifest than in the abhorrence felt at the legal com- 
 pulsion upon witnesses to make concessions which must cover the wit- 
 ness with lasting shame, and leave him degraded both in his own eyes 
 and those of others. What can be more abhorent . . . than to compel 
 a man who has fought his way from obscurity to dignity and honor to 
 reveal crimes of which he had repented, and of which the world was 
 ignorant? ' The essential and inherent cruelty ot compelling a man to 
 expose his own guilt is obvious to every one, and needs no illustration. 
 . . . The counsel for the appellant justly observes that 'the proud sense 
 of personal independence which is the basis of the most valued qualities 
 of a free citizen is sustained and cultivated by the consciousness that 
 there are limits which even the State cannot pass in tearing open the 
 secrets of his bosom.' " 
 
 Brown, J., for the majority : " If the object of the provision be to 
 
494 PRIVILEGED TOPICS. No. 482. 
 
 secure the witness against a criminal prosecution, which might be aided 
 directly or indirectly by his disclosure, then, if no such prosecution be 
 possible, — in other words, if his testimony operate as a complete pardon 
 for the offense ta which it relates, — a statute absolutely securing to him 
 such immunity from prosecution would satisfy the demands of the clause 
 in question. ... It can only be said, in general, that the clause should 
 be construed, as it was doubtless designed, to effect a practical and benefi- 
 cent purpose, — ^not necessarily to protect witnesses against every pos- 
 sible detriment which might happen to them from their testimony, nor 
 to unduly impede, hinder, or obstruct the administration of criminal jus- 
 tice. . . . The same answer may be made to the suggestion that the 
 witness is imperfectly protected by reason of the fact that he may still 
 be prosecuted! and put to the annoyance and expense of pleading his im- 
 munity by way of confession and avoidance. This is a detriment which 
 the law does not recognize. There is a possibility that any citizen, how- 
 ever innocent, may be subjected to a civil or criminal prosecution, and 
 put to the expense of defending himself; but, unless such prosecution 
 be malicious, he is remediless, except so far as a recovery of costs may 
 partially indemnify him. He may even be convicted of a crime, and 
 suffer imprisonment or other punishment before his innocence is discov- 
 ered ; but that gives him no claim to indemnity against the State, or even 
 against the prosecutor, if the action of the latter was taken in good faith, 
 and in a reasonable belief that he was justified in so doing. . . . [After 
 arguing that Congress has power to enact such a statutory amnesty to 
 apply in State courts, and that the statute in question was intended as a 
 general one :] But, even granting that there were still a bare possibility 
 that, by disclosure, he might be subjected to the criminal laws of some 
 other sovereignty, that, as Chief Justice Cockburn said in Queen v. 
 Boyes,^ in reply to the argument that the witness was not protected by his 
 pardon against an impeachment by the House of Commons, is not a real 
 and probable danger, with reference to the ordinary operations of the law 
 in the ordinary courts, but 'a danger of an imaginary and unsubstantial 
 character, having reference to some extraordinary and barely possible 
 contingency, so improbable that no reasonable man would suffer it to in- 
 fluence his conduct.' Such dangers it was never the object of the provi- 
 sion to obviate. , . . The fact that the testimony may tend to degrade the 
 witness in public estimation does not exempt him from the duty of dis- 
 closure. A person who commits a criminal act is bound to contemplate 
 the consequences of exposure to his good name and reputation, and ought 
 not to call upon the courts to protect that which he has himself esteemed 
 to be of such little value. The safety and welfare of an entire community 
 should not be put into the scale against the reputation of a self-confessed 
 criminal, who ought not, either in justice or in good morals, to refuse to 
 disclose that which may be of great public utility, in order that his neigh- 
 bors may think well of him. The design of the constitutional privilege is 
 
 I— I B. & S. 311, 325 (1861). 
 
No. 483. SELF-CRIMINATION. 495 
 
 not to aid the witness in vindicating his character, but to protect him 
 against being compelled to furnish evidence to convict him of a criminal 
 charge. If he secure legal immunity from prosecution, the possible im- 
 pairment of his good name is a penalty which it is reasonable he should 
 be compelled to pay for the common good. If it be once conceded that 
 the fact that his testimony may tend to bring the witness into disrepute, 
 though not to incriminate him, does not entitle him to the privilege of 
 silence, it necessarily follows that, if it also tends to incriminate, but at' 
 the same time operates as a pardon for the offense, the fact that the 
 disgrace remains no more entitles him to immunity in this case than in 
 the other. . . . The danger of extending the principle announced in Coun- 
 selman v. Hitchcock is that the privilege may be put forward for a senti- 
 mental reason, or for a purely fanciful protection of the witness against 
 an imaginary danger, and for the real purpose of securing immunity to 
 some third person, who is interested in concealing the facts to which 
 he would testify. Every good citizen is bound to aid in the enforcement 
 of the law, and has no right to permit himself, under the pretext of shield- 
 ing his own good name, to be made the tool of others, who are desirous 
 oS seeking shelter behind his privilege."^ 
 
 b. Claim and Waiver of the Privilege. 
 
 BEMBRIDGE'S TRIAL (1783). 
 
 22 How. St. Tr. 143. 
 
 Mr. Bearcroft, arguing for the defence : "It is true he was examined 
 in a mode of inquiry in which it was not improper, perhaps, to examine 
 him; but it cannot be doubted that the persons who did examine 
 *°*' him saw that the questions that they put upon that occasion tended 
 to criminate the person under that examination. What does your lord- 
 ship do in that situation? What does every judge do, even down to the 
 lowest justice of the peace, even to committee-men upon elections, when- 
 ever a question of that sort is asked of a witness? 'Stop; understand 
 that you are at your own discretion whether you will answer that ques- 
 tion or not ; you need not accuse yourself.' The law of England is that 
 no man is bound to accuse himself; and the man who administers that 
 law best always takes care to give that caution."' 
 
 2 — Compare the authorities cited in W., to his own discretion"; 1854, Parke, B., 
 
 §§ 2281, 2282. in Att'y-Cen'l v. Radloff, 10 Exch. 84, 88: 
 
 3 — 1809, L. C. Eldon, in Lloyd v. Pass- "1 think that a witness ought to make the 
 
 ingham, 16 Ves. Jr. 59, 64: "The prac- objection himself"; 1876, Mayo v. Mayo, 
 
 tice formerly was that the judge told the 119 Mass. 290, 292: "It is within the 
 
 witness he was not bound to answer the discretion of the Court, and the usual 
 
 question;" 1809, L. C. Eldon in Paxion practice, to advise a witness that he is not 
 
 V. Douglas, 16 Ves. Jr. 239, 242; "Now, bound to criminate himself, where it ap- 
 
 it appears to be understood that he may pears necessary to protect the rights of 
 
 waive the objection and proceed if he the witness." Compare the authorities 
 
 thinks proper; and in general it is left cited in W., § 2269. 
 
496 PRIVILEGED TOPICS. No. 484. 
 
 CLOYES V, THAYER (1842). 
 
 3 Hill N. y. 564, 566. 
 
 Action on a promissory note bearing date November 27th, 1835, 
 payable to bearer, made by the defendants and transferred to the plain- 
 tiff by Isaac Hovey, the payee. The defendants pleaded the gen- 
 *°* eral issue, and gave notice, in general terms, that they would prove 
 the note to have been given to Hovey upon a usurious consideration. 
 . . . The defendants' counsel called Isaac Hovey as a witness, and asked 
 him if he was the original holder of the note. The witness declined 
 answering the question, for fear, as he said, that his reply might form 
 a link in the chain of evidence to convict him of a criminal offence. The 
 circuit judge required the witness to answer the question and to testify 
 in relation to the receipt by him of the alleged usury; giving 
 as the reason for his decision that it was not an offence to take usury 
 when the note in question was executed. The plaintiff's counsel excepted. 
 The jury rendered a verdict in favor of the defendants; and the plain- 
 tiff now moved for a new trial on a bill of exceptions. 
 
 Nelson, C. J. : "The court erred in compelling the payee of the note 
 to answer questions tending to criminate himself. It was expressly held 
 in Burns v. Kempshall (24 Wend. 360), that the answer in a like case 
 might tend to subject him either to a penalty or to an indictment for a 
 misdemeanor. 
 
 "But the error is not available to the plaintiff. The privilege belongs 
 exclusively to the witness, who may take advantage of it or not at his 
 pleasure. The party to the suit cannot object. He has no right to insist 
 upon the privilege and require the) court to exclude the evidence on that 
 ground. The witness may waive it and testify, in spite of any objec- 
 tion coming from the party or his counsel. If ordered to testify in a 
 case where he is privileged, it is a matter exclusively between the Court 
 and the witness. The latter may stand out and be committed for con- 
 tempt, or he may submit ; but the party has no right to interfere or com- 
 plain of the error. It would be otherwise if the Court allowed the privi- 
 lege in a case where the witness had not brought himself within the 
 rule, as the [cross-examining] party would then be improperly deprived 
 of his testimony."* 
 
 REGINA V. GARBETT (1847). 
 
 3 C.& K. 474, 492, 2 Cox Cr. 448, I Den. Cr. C. 2^6. 
 
 Forgery. The first count of the indictment charged the prisoner with 
 
 forging a bill of exchange for £50, with intent to defraud William Booth. 
 
 ... In the course of the trial, 5'. Martin, for the prosecution, pro- 
 
 *^® posed to give in evidence the examination of the prisoner on the 
 
 trial of the civil action of Blagden v. Booth, at the Kingston Spring 
 
 4 — Compare the authorities cited in W., 5 2270 ; and the opinion in Doe v. Date, 
 ante, No. 450. 
 
No. 485. SELF-CRIMINATION. 497 
 
 Assizes, 1847. ... On that trial, the prisoner was called as a witness 
 for the defendant ; and, in his examination in chief, he had said : "This 
 is my signature to the bill as drawer. The bill is made payable to my 
 order. The acceptance was on it when I handed it to Mr. Phillips (the 
 second endorser) ." His cross-examination was as follows, as was proved 
 by Mr. Corfield, the short-hand writer, by his short-hand notes : — 
 
 The stamp was never out of my possession till it was handed to Mr. 
 Phillips. 
 
 Had you Mr. Booth's authority to accept it? — I had not. 
 
 Where did you get the stamp? — I purchased it at a shop in London, 
 and from that time the stamp has never been out of my possession. I 
 never received a penny for it. 
 
 Never mind what you received for it, — when was the "William Booth" 
 put upon it? — Between the Friday and the Sunday. 
 
 What Friday and Sunday? — I believe it was between the last Friday and 
 the last Sunday in November. 
 
 After the 2ist? — Certainly after the 21st. 
 
 After the 21st of November, 46? — Certainly. 
 
 Did you communicate with Mr. Booth on the subject? — Not in any way. 
 
 Have you never done so? — Yes, I believe last Saturday week I saw 
 Mr. Booth. 
 
 Lord Denman. — Was that the first time? — The first time, my Lord. 
 
 Mr. Chambers. — Why! did he not write you a letter? — Never, I never 
 heard of his writing me a letter until I came into this Court by accident. 
 
 Until you came by accident, — what do you mean? — I came into Court 
 in pursuance of a subpoena served three hours ago. 
 
 Who served you three hours ago? — A gentleman. 
 
 Where were you three hours ago? — ^At my office in King William Street, 
 in the City. 
 
 Who is the man, — do you know him? — I do not, but I believe he is a 
 clerk to Mr. Stuart. 
 
 Where is your office do you say? — My place of business is in King Wil- 
 liam Street. 
 
 What are you? — An attorney and solicitor. 
 
 Did you know what you came here to prove? — I did not until I came 
 into the box. 
 
 Do you know what you are attempting to prove? — I do. 
 
 Do you mean to say it is a forgery? — It is not his handwriting. 
 
 Not in his handwriting. Who accepted it then? — I am in the hands 
 of the Court. 
 
 Lord Denman. — It must be answered. 
 
 The Witness. — I state, my Lord, that I filled the bill up at Mr. Phillips's 
 request in his own drawing-room, and handed it to him, and have never 
 received a penny for it. 
 
 Mr. Chambers. — I ask you who did that? (pointing to the bill.) — Not Mr. 
 Booth. 
 
 Did Mr. Phillips?— No. 
 
 Who was present when the bill was filled up? — Mr. Phillips alone. 
 
 Were there only you two present? — Mr. Booth was not present when 
 "William Booth" was written. William Booth had been written before 
 I filled it up in Mr. Phillips's drawing-room. 
 
 Who was present when "William Booth" was written? — I won't say — 
 only myself. 
 
 Was any one else? — I cannot say. 
 
 I ask you to tell me whether any other person was present when "Wil- 
 liam Booth" was written besides yourself? — I believe a clerk. 
 
 What clerk? — That I decline to say. 
 
 Mr. Chambers. — My Lord, I press the question. 
 
 Lord Denman. (To the witness).— That other person or you must 
 have written it? — Precisely so. 
 
498 PRIVILEGED TOPICS. No. 485, 
 
 You knew that when you uttered it? — When I handed it to Mr. Phil- 
 lips I did know it and Mr. Phillips knew it too. 
 
 By Mr. Chambers. — Who was the other person? I ask the question, 
 and I submit, my Lord, it is a proper question. 
 
 Lord Denman. — It must be answered. 
 
 Montagu Chambers, for the prisoner, objected to those parts of the 
 cross-examination being given in evidence which followed the prisoner's 
 declining to answer, and applying to the Court for protection, and the 
 decision of Lord Denman, C. J., that he must answer the question. 
 
 Montagu Chambers, for the prisoner: "I submit that the prisoner, 
 when he was a witness on the trial of the case in Blagden v. Booth, was 
 not bound to answer the question then put, which he demurred to answer- 
 ing, and was illegally compelled to answer; and that, therefore, the 
 answers he gave to those questions could not be legally given in evi- 
 dence against him; and that, although he did so answer, the statements 
 he made were not receivable in evidence against him on the subsequent 
 trial for forgery: first because his answers were given upon oath; sec- 
 ondly, because he was not cautioned by the learned judge before whom 
 he was examined ; and, thirdly, that, when he did appeal to the Coijrt he 
 was told he must answer." 
 
 Willes, for the prosecution : "When a witness, in giving his evidence, 
 even inadvertently states a part of a transaction, and it is essential to 
 truth and justice that he should answer the whole, he must do so. Here 
 the witness knew what he came to prove; he does not take advantage 
 of his privilege, but makes certain statements to the advantage of one 
 party, and then wishes to say no. more, and insist on his privilege, which 
 he cannot be allowed to do, as the plaintiff has a right to the whole 
 truth." 
 
 RoLFE, B. : "If the witness says, on his oath, that he believes the 
 answer will criminate him, can you compel him to give the answer after 
 that?" Wilde, C. J.: "I have known judges over and over again tell 
 the witness he must answer." Parke, B. : "It must appear to the judge 
 that the answer really has some tendency to criminate the witness." 
 .S". Martin: "1 submit that the judge has a discretion." 
 
 "The case was afterwards considered by the judges, when a majority 
 of their Lordships held the conviction wrong, being of opinion, that, if 
 a witness claims the protection of the Court on the ground that his 
 answer would tend to criminate himself, and there appears reasonable 
 ground to believe that it would do so, he is not compellable to answer; 
 and if obliged to answer notwithstanding, what he says must be con- 
 sidered to have been obtained by compulsion, and cannot afterwards be 
 given in evidence against him. Their Lordships did not decide (as the 
 case did not call for it) whether the mere declaration of a witness on 
 oath, that he believed that the answer would tend to criminate him, 
 would or would not be sufficient to protect him from answering, where 
 sufficient other circumstances did not appear in the case to induce the 
 judges to believe that the answer would tend to criminate the witness. 
 
No. 487. SELF-CRIMINATION. 499, 
 
 Their Lordships, also held, that it made no difference in the right of 
 the witness to protection that he had before answered in part; — their 
 Lordships being of opinion that he was entitled to claim the privilege 
 at any stage of the inquiry, and that no answer forced from him by the 
 presiding judge (after such a claim) could be afterwards given in evi- 
 dence against him." 
 
 BURR'S TRIAL (1807). 
 Robertson's Rep. I, 243. 
 Marshall, C. J. : "It is alleged that he [the witness] is and from 
 the nature of things must be the sole judge of the effect of his answer; 
 that he is consequently at liberty to refuse to answer any ques- 
 *^ tion, if he will say upon his oath that his answer to that question 
 might criminate himself. . . . [But] there is no distinction which takes 
 from the Court the right to consider and decide whether any direct 
 answer to the particular question propounded could be reasonably sup- 
 posed to affect the witness. There may be questions no direct answer 
 to which could in any degree affect him ; and there is no case which goes 
 so far as to say that he is not bound to answer such questions. . . . 
 When two principles come in conflict with each other, the Court must 
 give them both a reasonable construction so as to preserve them both to 
 a reasonable extent. The principle which entitles the United States to 
 the testimony of every citizen, and the principle by which every witness 
 is privileged not to accuse himself, can neither of them be entirely dis- 
 regarded. They are believed both to be preserved to a reasonable extent, 
 and according to the true intention of the rule and of the exception to 
 that rule, by observing that course which, it is conceived. Courts have 
 generally observed ; it is this : When a^question is propounded, it be- 
 longs to the Court to consider and decide whether any direct answer to 
 it can implicate the witness; if this be decided in the negative, then he 
 may answer it without violating the privilege which is secured to him 
 by law. If a direct answer to it may criminate himself, then he must 
 be the sole judge what his answer would be; the Court cannot partici- 
 pate with him in this judgment, because they cannot decide on the effect 
 of his answer without knowing what it would be, and a disclosure of 
 that fact to the judges would strip him of the privilege which the law 
 allows and which he claims.'' 
 
 STATE v. THADEN (1890). 
 
 43 Minn. 253, 255, 45 N. W. 447. 
 
 Mitchell, J. : "The defendant was jointly indicted with two others 
 
 (Partello and Tall) for forgery in the second degree, by putting off as 
 
 true upon one Christianson a false and forged promissory note 
 
 purporting to have been executed by one Linstad. He demanded 
 
 and was granted a separate 'trial, and the state called, as a witness in 
 
500 PRIVILEGED TOPICS. No. 487. 
 
 its behalf, Linstad, the person whose name was alleged to have been 
 forged. The first error assigned is the ruling of the trial Court in com- 
 pelling this witness to answer certain questions, he having previously 
 declined to do so, claiming that the same might tend to criminate him- 
 self. While no principle of the common law is more firmly established than 
 that which affords a witness the privilege of refusing to answer any 
 question which will criminate himself, yet its application is attended 
 with practical difficulties. . . . The problem is how to administer the rule 
 so as to afford full protection to the witness, and at the same time pre- 
 vent simulated excuses. AH the authorities agree to the general propo- 
 sition that the statement of the witness that the answer will tend to 
 criminate himself is not necessarily conclusive, but that this is a ques- 
 tion which the Court will determine from all the circumstances of the par- 
 ticular case, and the nature of the evidence which the witness is called 
 upon to give. But the question on which the cases seem to differ is as to 
 what we may call the burden of proof; some holding that the state- 
 ment of the witness must be accepted as true, unless it affirmatively ap- 
 pears from the circumstances of the particular case that he is mistaken, 
 or acts in bad faith, while other cases hold that, to entitle a witness 
 to the privilege of silence, the Court must be able to see from the cir- 
 cumstances of the case and the nature of the evidence called for, that 
 there is reasonable ground to apprehend danger to the witness, if he is 
 compelled to answer. . . . The difference is theoretical, rather than prac- 
 tical ; for it would be difficult to conceive of an instance where the cir- 
 cumstances of the case, and tlie nature of the evidence called for, would 
 be entirely neutral in their probative force upon the question whether 
 or not there was reasonable ground to apprehend that the answer might 
 tend to criminate the witness. After consideration of the question and 
 an examination of the authorities, our conclusion is that the best prac- 
 tical rule is that laid down in some of the English cases, and adopted 
 and followed by Chief Justice Cockburn, in Reg. v. Boyes." ... To this 
 we would add that, when such reasonable apprehension of danger appears, 
 then, inasmuch as the witness alone knows the nature of the answer he 
 would give, he alone must decide whether it would criminate him. This, 
 we think, is substantially what Chief Justice Marshall meant by his state- 
 ment of the rule in the Burr trial. . . . 
 
 "Applying this rule to the case at bar, it is very clear that no error 
 was committed in compelling the witness Linstad to answer the ques- 
 tions. The sole object of the evidence sought to be elicited from him 
 was to prove that his signature to the note was forged, and not genu- 
 ine. For the purpose of proving this, counsel for the state exhibited 
 the note to him, and asked if the name affixed was his signature. This 
 the witness declined to answer, on the g[round that it might criminate 
 himself, and the Court held that he need not answer the question. Coun- 
 sel then, with the evident purpose of proving the same fact indirectly, 
 asked the following questions: 'Have you ever seen this note before?' 
 
 ■!— I E. & S. III. .izi (1861). 
 
No. 488. SELF-CRIMINATION. 501 
 
 The witness replied, 'I refuse to answer that question, because it may 
 criminate myself;' or, as subsequently expressed, 'it might have a tend- 
 ency to criminate myself.' The Court having ruled that he must answer, 
 the witness replied, 'Yes.' Counsel then asked him, 'When?' to which 
 the witness interposed a claim of privilege in the same form as before, 
 and, the Court having again ruled that he must answer, he replied, fixing 
 the time he had first seen the note at a date subsequent to the date of 
 the alleged uttering by the defendant. 
 
 "Whether the rulings of the court were consistent in sustaining the 
 witness' claim of privilege as to the first question, and overruling it as to 
 the other two, it immaterial. There was not a thing, either in the cir- 
 cumstances of the case as then presented to the court, or in the nature 
 of the questions, to suggest any reasonable apprehension of danger to 
 the witness from being compelled to answer. The very nature of the 
 offence charged against defendant negatived the idea of the witness 
 being a party to it, and there was nothing in the character of the evi- 
 dence sought to be elicited from him that would reasonably suggest any 
 real or appreciable danger that it would or could tend to inculpate him 
 in any other offence. The answers themselves, when given, show that 
 they had no such effect."' 
 
 PEOPLE V. TYLER (1869). 
 
 36 Cal. 522, 530. 
 
 The facts and the statute involved in this case are stated ante, in 
 No. 72. 
 
 Sawyer, C. J. : "At the trial the defendant did not avail him- 
 *''' self of the right conferred by this Act to offer himself as a wit- 
 ness on his own behalf. During the argument of the case, the District 
 Attorney called the attention of the jury to the fact that the de- 
 fendant had not testified in his own behalf, and argued and insisted 
 before said jury that the silence of the defendant was a circumstance 
 strongly indicative of defendant's guilt. Defendant's counsel objected 
 to this course of argument, and requested the Court to require the Dis- 
 trict Attorney to refrain from urging such inference, but the Court de- 
 clined to interfere, and intimated that the law justified the counsel in 
 the course pursued. Counsel thereupon continued to urge before the 
 jury that the silence of the defendant was a circumstance tending strongly 
 to prove his guilt, and the counsel for the prisoner excepted. At the 
 close of the argument of the case to the jury, the defendant's counsel 
 asked the Court to give to the jury the following instruction : 'The jury 
 should not draw any inference to the prejudice of the defendant from the 
 fact that he did not offer himself as a witness in his own behalf. It is 
 optional with a defendant to do so or not, and the law does not intend 
 that the jury should put any construction upon his silence unfavorable 
 
 6 — Compare the authorities cited in W., § 2271. 
 
£02 PRIVILEGED TOPICS. No. 488. 
 
 to him.' The Court refused to give the instruction, and defendant ex- 
 cepted. The action of the Court in the premises is claimed to be erro- 
 neous. . . . 
 
 "Now, if, at the trial, when, for all the purposes of the trial, the bur- 
 den is on the People to prove the offense charged by affirmative evidence, 
 and the defendant is entitled to rest upon his plea of not guilty, an infer- 
 ence of guilt could legally be drawn from his declining to go upon the 
 stand as a witness, and again deny the charge against him in the form 
 of testimony, he would practically, if not theoretically, by his act declin- 
 ing to exercise his privilege, furnish evidence of his guilt that might 
 turn the scale and convict him. In this mode he would indirectly and 
 practically be deprived of the option which the law gives him, and of 
 the benefit of the provision of the law and the Constitution, which say, 
 in substance, that he shall not be compelled to criminate himself. If 
 the inference in question could be legally drawn, the very act of exercis- 
 ing his option as to going upon the stand as a witness, which he is 
 necessarily compelled by the adoption of the statute to exercise one way 
 or the other, would be, at least to the extent of the weight given by the 
 jury to the inference arising from his decfining to testify, a crimination 
 of himself. Whatever the ordinary rule of evidence with reference to 
 inferences to be drawn from the failure of parties to produce testimony 
 that must be in their power to give, we are satisfied that the defendant, 
 with respect to exercising his privilege under the provisions of the Act 
 in question, is entitled to rest in silence and security upon his plea of 
 not guilty, and that no inference of guflt can be properly drawn against 
 him from his declining to avail himself of the privilege conferred upon 
 him to testify on his own behalf ; that to permit such an inference would 
 be to violate the principles and the spirit of the Constitution and the 
 statute, and defeat rather than promote the object designed to be accom- 
 plished by the innovation in question." 
 
 STATE V. CLEAVES (1871). 
 5P Me. 2p8, 300. 
 Appleton, C. J.: "The defendant, a married woman, was indicted 
 for being a common seller of intoxicating liquors. The presiding justice 
 instructed the jury 'that the fact that the defendant did not go 
 * upon the stand to testify was a proper matter to be taken inta 
 
 consideration by them in determining the question of her guilt or inno- 
 cence.' To this instruction exceptions were seasonably taken. The 
 statute authorizing the defendant in criminal proceedings, at his own 
 request, to testify, was passed for the benefit of the innocent 
 and for the protection of innocence. The defendant, in criminal cases, 
 is either innocent or guilty. If innocent, he has every inducement tO' 
 state the facts, which would exonerate him. The truth would be his 
 protection. There can be no reason why he should withhold it, and 
 
No. 491. SELF-CRIMINATION. 503 
 
 every reason for its utterance. Being guilty, if a witness, a statement 
 of the truth would lead to his conviction, and justice would ensue. Be- 
 ing guilty, and denying his guilt as a witness, an additional crime would 
 be committed, and the peril of a conviction for a new oifence incurred. 
 But the defendant, having the opportunity to contradict or explain the 
 inculpative facts proved against him, may decline to avail himself of 
 the opportunity thus afforded him by the law. His declining to avail 
 himself of the privilege of testifying is an existent and obvious fact. It 
 is a fact patent in the case. The jury cannot avoid perceiving it. Why 
 should they not regard it as a fact of more or less weight in determining 
 the guilt or innocence of the accused ? . . . The silence of the accused, 
 the omission to explain or contradict, when the evidence tends to estab- 
 lish guilt, is a fact — the probative effect of which may vary according to 
 the varying conditions of the different trials in which it may occur — 
 which the jury must perceive, and which perceiving they can no more 
 disregard than one can the light of the sun, when shining with full blaze 
 on the open eye. It has been urged that this view of law places the 
 prisoner in an embarrassed condition. Not so. The embarrassment of 
 the prisoner, if embarrassed, is the result of his own previous miscon- 
 duct, not of the law. If innocent, he wfll regard the privilege of testi- 
 fying as a boon justly conceded. If guilty, it is optional with the accused 
 to testify or not, and he cannot complain of the election he may make. 
 If he does not avail himself of the privilege of contradiction or explana- 
 tion, it is his fault, if by his own misconduct or crime he has placed him- 
 self in such a situation that he prefers any inferences which may be 
 drawn from his refusal to testify, to those which must be drawn from 
 his testimony, if truly delivered." 
 
 Statutes : Maine, Pub. St. 1883, c. 134, § 19 : "In all criminal trials 
 the accused shall, at his own request, but not otherwise, be a competent 
 witness. . . . The fact that he does not testify in his own behalf 
 * shall not be taken as evidence of his guilt."' 
 
 COMMONWEALTH v. WEBSTER (1850). 
 5 Cush. 395, 316. 
 The facts in this case are stated ante, in No. 17. Shaw, C. J. : "A. 
 few other general remarks occur to me upon this subject, which I will 
 submit to your consideration. Where, for instance, probable proof 
 ^"^ is brought of a state of facts tending to criminate the accused, 
 the absence of evidence tending to a contrary conclusion is to be con- 
 sidered, — though not alone entitled to much weight; because the burden 
 of proof lies on the accuser to make out the whole case by substantive 
 
 7 — Compare the authorities cited in W., § 2272, and the statutes quoted, post, Ap- 
 pendix. *^ 
 
504 PRIVILEGED TOPICS. No. 491, 
 
 evidence. But when a pretty stringent proof of circumstances is pro- 
 duced, tending to support the charge, and it is apparent that the 
 accused is so situated that he could offer evidence of all the facts and 
 circumstances as they existed, and show, if such was the truth, that the 
 suspicious circumstances can be accotmted for consistently with inno- 
 cence, and he fails to offer such proof, the natural conclusion is that 
 the proof, if produced, instead of rebutting would tend to sustain the 
 charge. But this is to be cautiously applied, and only in cases where 
 it is manifest that proofs are in the power of the accused not accessible 
 to the prosecution."* 
 
 FOSTER V. PEOPLE (1869). 
 18 Mich. 266, 2^4. 
 
 Campbell, J. : "The respondent was informed against jointly with 
 one William McCoy, in the Circuit Court for the county of Macomb, 
 for the larceny of a horse, and some other articles. Foster was 
 ■* tried separately, and the other defendant, McCoy, was used by the 
 
 People, as a witness against him. McCoy proved facts tending to show the 
 guilt of Foster, and showing also his own guilt, in receiving the horse 
 in Detroit, and taking him to Toledo, where the witness was arrested 
 with the stolen property. Upon cross-examination, he admitted that he 
 had made an affidavit for continuance, in which he swore that, as he 
 had been advised by counsel, and believed, he had a good defence upon 
 the merits. Counsel for Foster then asked what that defence was. The 
 counsel for the People objected to the question, on the ground that a 
 person accused of crime could not, while a trial was pending, be com- 
 pelled to disclose his defence. The Court overruled this objection, and 
 then the witness declined to answer. The record does not show on 
 what ground the witness declined. The Court refused to direct him 
 to answer. . . . The quesUoii, therefore, narrows itself to an inquiry 
 whether, after undertaking voluntarily to explain the transactions con- 
 nected with the larceny and the disposition of the property involved in the 
 charge on trial, and after answering fully the direct questioning of the 
 prosecution, and unequivocally criminating himself to the extent of 
 complete legal guilt of larceny of that property, he can then refuse to 
 answer further, and be protected against further disclosures relating to 
 the same transaction. 
 
 "The cases which apply to ordinary witnesses — ^who do not stand 
 properly on the same footing with accomplices — do not in any way 
 sanction such a stretch of privilege. Where he has not actually admitted 
 criminating facts, the witness may unquestionable stop short at any point 
 and determine that he will go no further in that direction. . . . But 
 the rule which allows a witness to refuse answering questions not directly 
 pointing to guilt, rests solely on the doctrine that, as in most cases the 
 crimination would be made out by a series of circumstances, any one 
 
 8 — Compare the authorities cited in W., 5 2273, and No. 148, antt. 
 
No. 492. SELF-CRIMINATION. 509 
 
 of them may have such a tendency to aid in reaching the result, that an 
 answer concerning it may supply means of conviction, by aiding the other 
 proofs which it indicates, or supplements, on behalf of the prosecu- 
 tion. The right to decline answering as to these minor facts is merely 
 accessory to the right to decline answering to the entire criminating 
 charge, and can be of no manner of use when that is once admitted, and 
 must be regarded as waived when the objection to answering to the 
 complete offense is waived. The law does not endeavor to preserve any 
 vain privileges, and such a privilege as would allow a witness to answer 
 a principal criminating question, and refuse to answer as to its incidents, 
 would be worse than vain; for, while it could not help the witness, it 
 must inevitably injure the party, who is thus deprived of the power 
 of cross-examination to test the credibility of a person who may, by 
 avoiding it, indulge his vindictiveness or corrupt passions with impunity. 
 . . . And the further ccHisideration is also recognized, that a witness 
 has no right, under pretense of a claim of privilege, to prejudice a party 
 by a one-sided or garbled narrative. . . . 
 
 " When accomplices are allowed to testify for the purpose of furnishing 
 evidence against a prisoner, they not only know that they are expected 
 to criminate themselves, but they do it with the prospect of an advantage, 
 which, if not absolutely promised, is substantially pledged to them, if 
 they make full disclosures. If they see fit to furnish criminating proof, 
 there is every reason to compel them to submit to the fullest and most 
 searching inquiry. They expressly waive their privilege by giving such 
 proof, for they could not be sworn at all without their consent, while 
 under a joint indictment; and, if not indicted, they could still refuse to 
 furnish evidence of joint misconduct. But there is neither reason 
 nor show of authority which can, in any case, allow to them any 
 privilege whatever, whether they have gone so far already, as to any 
 matters in which they and the prisoner on trial have been connected. As 
 to separate and purely private transactions, not connected with the mat- 
 ter under inquiry, they stand like any other witnesses, because they are 
 not, as to those, accomplices at all, and no protection is pledged to them 
 on such charges. . . . The witness in the present case ought not to 
 have been permitted to decline answering the question put to him touch- 
 ing the character of his defence, as alluded to in his affidavit for con- 
 tinuance."^ 
 
 I — Compare the following phrasings: questions relative to that transaction" t 
 1820, Ex parte Cossens, Buck Bkcy. 1872, Connors v. People, 50 N. Y. 240; 
 Cas. 531, 540; bankrupt's examination; L. Church, C. J., permitting answers as to 
 C. Eldon: *'If a man has gone on answer- former arrests, as affecting credibility: 
 ing questions that had a tendency to crim- "The prohibition in the Constitution is 
 inate himself, he may stay, in answering against compelling an accused person to 
 those questions, wherever he pleases; you become a witness against himself. If he 
 cannot carry him further than he chooses consents to become a witness in the case, 
 voluntarily to go himselF'; 1824, Dixon voluntarily and without any compulsion, 
 V. Vale, I C. & P. 278; Best, C. J., said it would seem to follow that he occupies 
 that if a witness, after caution, chooses for the time being the position of a wit- 
 to answer, "he is bound to answer all ness with all its rights and privileges and 
 
506 PRIVILEGED TOPICS. \ No. 493. 
 
 STATE V. WENTWORTH (1875). 
 65 Me. 234, 243. 
 
 Complaint to the municipal court of Biddeford, for selling one pint 
 of intoxicating liquors to Charles T. Goodwin. . . . The defendant being 
 called as a witness in his own behalf, was interrogated by the 
 government counsel concerning sales of intoxicating liquors made 
 by himself personally. His counsel objected to the inquiries for the 
 reasons (among others) urged against the inquiries made of Goodwin, 
 and claimed that he was not obliged by law to answer concerning sales 
 made by himself prior to the sale charged in the complaint; that the 
 waiver of his privilege to give no evidence tending to criminate him- 
 self applied only to the charge under consideration and set forth in 
 the complaint. The presiding judge remarked that the full court had 
 decided otherwise and ruled that the defendant must answer any ques- 
 tion put to him by the county attorney in regard to any sales of intoxi- 
 cating liquors in that store by himself to any person within thirty days. 
 To these rulings the defendant excepted. ... ] 
 
 Appleton, C. J. : " The objection is taken that the counsel for the 
 state, in his inquiries of^the defendant after at his own request he was 
 a witness, transcended the limits of legitimate cross-examination. The 
 defendant was charged with having sold intoxicating liquors to one 
 Charles T. Goodwin, on a day certain. It is immaterial, so far as regards 
 his criminal liability, whether the sale was by him or his authorized 
 agent. He was not obliged to testify. He does testify ' upon his own 
 request.' He goes on the stand and denies the sale or the authority 
 to sell. He exonerates himself. He denies the commission of the 
 offence charged. He is subject to cross-examination as the necessary 
 result of his assuming the position of a witness. What are the limits 
 which the law imposes on this cross-examination ? It will hardly be 
 contended that he can go on the stand and by a simple denial escape all 
 discreditive or criminative cross-interrogation. ... If he discloses part, 
 he must disclose the whole in relation to the subject-matter about which 
 he has answered in part. Answering truly in part with answers exon- 
 •erative, he cannot stop midway, but must proceed, though his further 
 answers may be self-criminative. Answering falsely as to the subject- 
 matter, he is not to be exempt from cross-examination because his 
 answers to such cross-examination would tend to show the falsity of 
 those given on direct examination. If it were so, a preference would be 
 accorded to falsehood rather than to truth.'" 
 
 subject to all its duties and obligations. and if that was voluntary, he has no rea- 
 If he gives evidence which bears against son to complain." 
 
 himself, it results from his voluntary act i — Compare the authorities cited in W., 
 
 of becoming a witness, and not from com- § 2276, and the rule for cross-examining 
 pulsion. His own act is the primary cause, only to matters dealt with on the direct 
 
 examination {ante, Nos. 403-405). 
 
No. 495. PRIVILEGED COMMUNICATIONS. 507 
 
 SUB-TITLE III: 
 PRIVILEGED COMMUNICATIONS. 
 I. In General. 
 DUCHESS OF KINGSTON'S CASE (1776). 
 20 How. St. Tr. 586. 
 Bigamy; trial by the House of Lords. To prove the first and disputed 
 marriage, the question was asked of Lord Harrington, an old friend of 
 the accused : "Did you ever hear from the lady at the bar that 
 * * she was married to Mr. Hervey?" Lord Barrington: "If any- 
 thing has been confided to my honor, or confidentially told me, I do hold, 
 with humble submission to your lordships, that as a man of honor, as a 
 man regardful of the laws of society, I cannot reveal it." Then the 
 Duchess released Lord Barrington from every obligation of honor; and 
 the Solicitor-General, not to be outdone, declared that he would ask no 
 more questions. But several lords insisted on their right to continue the 
 questioning. Lord Camden : "I hope that your lordships, sitting in 
 judgment on criminal cases — the highest and most important that may 
 affect the lives, liberties, and properties of your lordships — that you shall 
 not think it befitting the dignity of this high Court of justice to be debat- 
 ing the etiquette of honor at the same time when we are trying lives and 
 liberties. My lords, the laws of this land — I speak it boldly in this grave 
 assembly — are to receive another answer from those who are called to 
 depose at your bar, than to be told that in point of honor and of con- 
 science they do not think that they acquit themselves like persons of that 
 description when they declare what they know." . . . Dwfe^ 0/ Richmond: 
 "I do not look on a witness at the bar to be the witness of the counsel 
 or of the prisoner, but the witness of the House". Lord Barrington still 
 refusing, the Lords adjourned to discuss the point of law, and it was 
 announced to him that "it is the judgment of this House that you are 
 bound by law to answer all such questions as shall be put to you."* 
 
 DUBLIN ELECTION CASE (1869). 
 I O'M. & H. 270, 271, 
 "Mr. Sanger, the telegraph-officer, when called as a witness to pro- 
 duce the telegrams, said, 'My lord, before I produce these telegrams, I 
 must object to their production. We have always looked upon a 
 *'^ telegram as sacred, and we think that this decision of your lord- 
 ship will shake the confidence of the public in the telegraph.' Mr. Jus- 
 tice Keogh said that the opinion of the telegraph company as to this 
 could make no difference. The telegrams were produced. . . . Mr. Jus- 
 tice Keogh in his judgment said further as to this : 'Telegrams are noth- 
 ing) but electric letters, written by the candidates or their agents to elec- 
 tors. If such letters were in the pockets of the electors, or if copies of 
 
 3 — Compare the authorities cited in W., § 2286. 
 
508 PRIVILEGED COMMUNICATIONS. No. 495. 
 
 them were in desks of the candidates, the petitioners of course would 
 have a right to insist upon their production ; and there is no reason why, 
 because they are transmitted along a wire instead of being written on 
 paper with pen and ink, they should have any greater protection.' "* 
 
 2. Attorney and Client. 
 
 ANDERSON v. BANK (1876). 
 L. R. 2 Ch. D. 644, 64P. 
 
 Jessel, M. R.: "The object and meaning of the rule is this: That, as 
 by reason of the complexity and- difficulty of our law, litigation can only 
 be properly conducted by professional men, it is absolutely nec- 
 essary that a man, in order to prosecute his rights or defend him- 
 self from an improper claim, should have recourse to the assistance of 
 professional lawyers, and it being so absolutely necessary, it is equally 
 necessary, to use a vulgar phrase, that he should be able to make a clean 
 breast of it to the gentleman whom he consults with a view to the 
 prosecution of his claim, or the substantiating his defence against the 
 claim of others; that he should be able to place unrestricted and un- 
 bounded confidence in the professional agent, and that the communica- 
 tions he so makes to him should be kept secret, unless with his consent 
 (for it is his privilege, and not the privilege of the confidential agent), 
 that he should be enabled properly to conduct his litigation. That is the 
 meaning of the rule."^ 
 
 Statutes. California, C. C. P. 1872, § 1881 : "There are particular 
 relations in which it is the policy of the law to encourage confidence and 
 to preserve it inviolate ; therefore a person cannot be examined as 
 *''' a witness in the following cases: ... 2. An attorney cannot, 
 without the consent of his client, be examined as to any communication 
 made by the client to him, or his advice given thereon in the course of 
 professional employment"; amended by the Commissioners in 1901 by 
 
 4 — Cooley, J., Constitutional Limita- protect correspondence by mail; and 
 tions, 6th ed., p. 371, note (1890): "The though the operator is not a public officer, 
 telegraph is used as a means of corre- that circumstance appears to us ^ immaterial, 
 spondence, and as a valuable and in many He fulfils an important public function; 
 cases an indispensable substitute for the and the propriety of his preserving in- 
 postal facilities; and the communication violable secrecy in regard to communica- 
 is made, not because the party desires to tions is so obvious that it is common to 
 put the operator in possession of facts, provide statutory penalties for disclosure, 
 but because transmission without it is im- If on grounds of public policy the 
 possible. It is not voluntary . in any other operator should not voluntarily disclose, 
 sense than this, that the party makes it why do not the same considerations forbid 
 rather than deprive himself of the benefits the Courts compelling him to do so?" 
 of this great invention and improvement. Compare the authorities cited in W., 
 The reasons of a public nature for main- § 2287. 
 
 taining the secrecy of telegraphic com- 5 — For the history of this privilege, see 
 
 munication are the same with those which W., S 2290. 
 
No. 496. ATTORNEY AND CLIENT. _ 509 
 
 adding: "nor can an attorney's secretary, stenographer, or clerk, be ex- 
 amined, without the consent of his employer, concerning any fact the 
 knowledge of which has been acquired in such capacity; but no com- 
 munication is privileged under this subdivision when the same was 
 made with the intention that it should be communicated to any person 
 having an interest adverse to the client, or when the same was made 
 in furtherance of a crime or fraud then being perpetrated or in contem- 
 plation", lb. § 1882, added by amendment of the Commissioners in 1901 : 
 "Consent to the giving of such testimony as is mentioned in section 1881 
 is conclusively implied in the following cases : i. When the person who 
 made any communication mentioned in that section testifies, without 
 objection on his part, as to such communication or any part thereof, the 
 person to whom such communication was made may be examined fully, 
 in the same action or proceeding, as to such communication; 2, When a 
 person employes an attorney to prepare his will, the attorney may, in 
 any proceeding for the probate or revocation of probate of such will, 
 testify, as to the contents of such will if lost or destroyed, and as to all 
 information and instructions received by him from the testator, in the 
 course of- the preparation or execution of such will, and relating there- 
 to."* 
 
 CRAIG dem. ANNESLEY v. ANGLESEA (1743). 
 1/ How. St. Tr. II S9, 1225, 1229. 
 
 The preliminary facts of this case are stated ante, in No. 145. It was 
 proposed to show that the defendant, by supporting the criminal prose- 
 cution for murder against the plaintiff, had tried to put the plain- 
 *"* tiff out of the way, and had expressed such plans in an interview 
 with Mr. Giffard, a solicitor. This solicitor had often been employed 
 by the defendant, but for six months had had no affairs of his in hand, 
 and did not expect to be employed again; on May i the plaintiff had 
 killed a person, — by accident, as he claimed; on May 2, the defendant, 
 hearing of it, sent for Mr. Giffard, and told him to go and conduct the 
 prosecution, not disclosing the defendant's name, and incidentally made 
 certain remarks, now offered in evidence, Mr. Harward, of counsel for 
 the plaintiff, spoke as follows: "My lord, the conversation Mr. Giffard 
 had with lord Anglesea was to this purpose; Mr. Giffard is an attorney 
 
 6 — Compare the following statute of to enable him to discharge the functions 
 Iowa: Code, 1897, § 4608: "No practicing of his office according to the usual course 
 attorney, counselor, physician, surgeon, or of practice or discipline. Such prohibition 
 the stenographer or confidential clerk of shall not apply to cases where the party 
 any person, who obtains such information in whose favor the same is made waives 
 by reason of his employment, minister of the rights conferred"; amended by St. 
 the gospel or priest of any denomination, 1900, 28th Gen. Ass. c. 125, § i, by insert- 
 shall be allowed, in giving testimony, to ing the word "such" before "person." 
 disclose any confidential communication Compare also the statutes cited in W., 
 properly intrusted to him in his profes- § 2292- 
 sional capacity, and necessary and proper 
 
510 PRIVILEGED COMMUNICATIONS. No. 498. 
 
 of reputation in England, and as such has been twenty years or there- 
 abouts employed by this noble earl in his business, as he had occasion 
 for him. When my unfortunate client was to be trial at the Old Bailey, 
 that was the time lord Anglesea had greatest occasion for this Mr. Gif- 
 fard; and it will appear to your lordship that lord Anglesea disclosed his 
 intentions to him in this manner : ' I am advised that it is not prudent fnr 
 me to appear publicly in the prosecution, but Iwould z\ Y c „ .J'i,a m L, f' e 
 Karc him hanged. "Mr. Jan's my "agenFshall always attend you. I am 
 in great distress; I am worried by my wife in Ireland; Mr. Charles 
 Annesley is at law with me for part of my estate, and' says he, 'If I can- 
 not hang James Annesley, it is better for me to quit this kingdom and 
 go to France, and let Jemmy have his right, if he will renut me into 
 France 3,000/. a year ; I will learn French before I go.' |ftO 
 
 Mr. Daly, of counsel for the defendant, objects to Mr. Qffard's be- 
 ing examined, since as an attorney he was to keep the secrets of his 
 client, and if he is a gentleman of character, he will not, and as an 
 attorney he ought not to disclose them. 
 
 Mr. Recorder (arguing for the defendant) : "My lord, formerly per- 
 sons appeared in court themselves; but as business multiplied and be- 
 came more intricate and titles more perplexed, both the distance of 
 places and the multiplicity of business made it absolutely necessary that 
 there should be a set of people who should stand in the place of suitors, 
 and these persons are called attornies. Since this has been thought nec- 
 essary, all people and all courts have looked upon that confidence between 
 the party and attorney to be so great that it would be destructive to all 
 business if attornies were to disclose the business of their clients. In 
 many cases men hold their estates without titles; in others, by such 
 titles, that if their deeds could be got out of their hands, they must lose 
 their fortunes. When persons become purchasers for valuable consid- 
 erations, and get a deed that makes against them, they are not obliged 
 to disclose whether they have that deed. Now, if an attorney was to be 
 examined in every case, what man would trust an attorney with the 
 secret of his estate, if he should be permitted to offer himself as a 
 witness? If an attorney had it in his option to be examined, there would 
 be an entire stop to business; nobody would trust an attorney with the 
 state of his affairs. The reason why attornies are not to be examined 
 to anything relating to their clients or their affairs is because they would 
 destroy the confidence that is necessary to be preserved between them. 
 This confidence between the employer and the person employed, is so 
 sacred a thing, that if they were at liberty, when the present cause was 
 over that they were employed in, to give testimony in favour of any 
 other person, it would not answer the end for which it was instituted. 
 The end is, that persons with safety may substitute others in their room ; 
 and therefore if you cannot ask me, you cannot ask that man ; for every- 
 thing said to him, is as if I had said it to myself, and he is not to an- 
 swer it." 
 
 Mr. Prime Sergeant Malone (for the defendant) : "The mutual confi- 
 
No. 498. ATTORNEY AND CLIENT. 511 
 
 dence between client and attorney require the preservation of secrecy; 
 and as the client cannot be supposed to be qualified to distinguish what 
 is, or is not necessary to his cause, if he should be mistaken, and entrust 
 his attorney with what the attorney should be of opinion was unnec- 
 essary, yet surely his attorney ought not to reveal it. As clients are not 
 versed in law affairs, they must be informed by their attorney, for which 
 purpose they must tell them their whole case, and this necessity creates 
 a confidence between them. . . . There seems to be no difference whether 
 the conversation relates to the principal cause in which the attorney is 
 concerned, or to a collateral action, in which he is not; it is in either 
 case grounded on the confidence that arises from the attorney's being 
 employed, and therefore ought not to be disclosed." 
 
 Mr. Serjeant Tisdall (arguing for the plaintiff) : "If he is employed 
 as an attorney in any unlawful or wicked act, his duty to the public 
 obliges him to disclose it; no private obligations can dispense with that 
 universal one, which lies on every member of the society, to discover 
 every design which may be formed, contrary to the laws of the society, 
 to destroy the public welfare. For this reason I apprehend, that if a 
 secret, which is contrary to the public good, such as a design to commit 
 treason, murder, or perjury, comes to the knowledge of an attorney, 
 even in a cause wherein he is concerned, the obligation to the public 
 must dispense with the private obligation to the client." 
 
 Mr. Harward (arguing for the plaintiff) : "I take the distinction to 
 be, that where an attorney comes to the knowledge of a thing that is 
 malum in se, against the common rules of morality and honesty, though 
 from his client, and necessary to procure success in the cause, yet it 
 is no breach of trust in him to disclose it, as it can't be presumed an 
 honest man would engage in a trust that by law prevented him from 
 discharging that moral duty all are bound to, nor can private obliga- 
 tion cancel the justice owing by us to the public." 
 
 BowES, L. C. B. : "Now, admitting the policy of the law in protect- 
 ing secrets disclosed by the client to his attorney, to be, as has been 
 said, in favour of the client, and principally for his service, and that 
 the attorney is in loco of the client, and therefore his trustee, 
 does it follow from thence, that everything said by a client to his attor- 
 ney falls under the same reason? I own, I think not; because there is 
 not the same necessity upon the client to trust him in one case as in 
 the other; and of this the Court may judge, from the particulars of the 
 conversation. Nor do I see any propriety in supposing the same person 
 to be trusted in one case as an attorney or agent, and in another as a 
 common acquaintance. . . . But where the client talks to him at large 
 as a friend, and not in the way of his profession, I think the Court is 
 not under the same obligations to guard such secrets, though in the 
 breast of an attorney.'' 
 
 MouNTENEY, B. : "Mr. Recorder hath very properly mentioned the 
 foundation . . . that an increase of legal business, and the inabilities 
 of parties to transact that business themselves, made it necessary for 
 
512 PRIVILEGED COMMUNICATIONS. NO. 498- 
 
 them to employ (and as the law properly expresses it, ponere in locff 
 suo) other persons who might transact that business for them; that this 
 necessity introduced with it the necessity of what the law hath very 
 justly established, an inviolable secrecy to be observed by attomies, in 
 order to render it safe for clients to communicate to their attornies all 
 proper instructions for the carrying on those causes which they found 
 themselves under a necessity of intrusting to their care. If this original 
 principle be kept constantly in view, I think it cannot be difBcult to deter- 
 mine either the present question or any other which may arise upon 
 this head; for upon this principle, whatever either is, or by the party 
 concerned can naturally be supposed, necessary to be communicated to 
 the attorney in order to the carrying on any suit or prosecution in 
 which he is retained, — that the attorney shall inviolably keep secret. On 
 the other hand, whatever is not, nor can possibly by any man living be 
 supposed to be, necessary for that purpose, that the attorney is at liberty, 
 and in many cases — as particularly, I think, in the present case — ^the 
 attorney ought to -disclose. . . . For Qod's sake then let us consider, 
 what will be the consequence of the doctrine now laid down [by the 
 defendant] and so earnestly contended for, that such a declaration made 
 by any person to his attorney, ought not by that attorney to be proved? 
 A man (without any natural call to it) promotes a prosecution against 
 another for a capital offence; he is desirous and determined, at all events, 
 to get him hanged; he retains an attorney to carry on the prosecution, 
 and makes such a declaration to him as I have before mentioned (the 
 meaning and intention of which, if the attorney hath common under- 
 standing about him, it is impossible he should mistake) ; he happens to 
 be too honest a man to engage in such an affair; he declines the prose- 
 cution; but he must never discover this declaration, because he was re- 
 tained as an attorney. This prosecutor applies in the same manner to 
 a second, a third, and so on, who still refuse, but are still to keep this 
 inviolably secret. At last, he finds an attorney wicked enough to carry 
 this iniquitous scheme into execution. And after all, none of these 
 persons are to be admitted to prove this, in order either to bring the 
 guilty party to condign punishment, or to prevent the evil consequences 
 of his crime with regard, to civil property. Is this law? Is this rea- 
 son ? I think it is absolutely contrary to both. . . . The declaration now 
 offered to be proved is of that nature, and so highly criminal, that, in 
 my opinion, mankind is interested in the discovery; and whoever it was 
 made to, attorney or not attorney, lies under an obligation to society in 
 general, prior and superior to any obligation he can lie under to a par- 
 ticular individual, to make it known." 
 
 Dawson, B. ; "Nothing that came properly to the knowledge of the 
 attorney in defence of his client's cause ought to be revealed. I will 
 suppose an unknowing man to have twenty deeds by him, and he de- 
 livers them all to his attorney to see which were relative to the suit; 
 he looks them over, and finds not half of them to be relative thereto. 
 I apprehend the attorney is not compellable to disclose the contents of 
 
No. 499. ATTORNEY AND CLIENT. 513 
 
 any one of those deeds; neither do I think it necessary to him: and I 
 think, the Court must, in this case be satisfied, first, that what came to 
 this man's knowledge was not necessary to his client's affairs; and in 
 the next place, that the client could not think it necessary. . . . The 
 motive for carrying on the prosecution against the plaintiff is said to 
 be, because he has a right to the estate the defendant was in possession 
 of. Can any man think that this was necessary to tell the attorney, or 
 that the defendant could have thought it so? What was necessary, or 
 •what a man might haVe thought necessary, ought not to be disclosed. 
 But if the defendant in this case had gone anything further, he has 
 trusted Mm, not as an attorney, but as an acquaintance."' 
 
 GREENOUGH v. GASKELL (1833). 
 I Myl. & K. 98, 103. 
 
 Bill to require the surrender and cancellation of a note improperly 
 obtained by the defendant from one Darwell. The defendant, by his 
 answer, wholly denied that the note in question had been exe- 
 * cuted by the plaintiffs at his instance or entreaty, but he ad- 
 
 mitted that he had been aware of the situation and circumstances of 
 Darwell at the time of the transaction impeached by the bill; and, in 
 answer to the charge to that effect, he also admitted that he had in his 
 possession divers books, &c., containing entries and memorandums, and 
 also divers papers and letters, relative to the matters in the bill men- 
 tioned; and he set forth a list of them in a schedule. But he stated 
 that such entries and memorandums were made, and such papers and 
 letters were written, or received by him in his capacity of confidential 
 solicitor for Darwell; for whom he had been professionally engaged 
 for a number of years. 
 
 Brougham, L. C. : "The foundation of this rule is not difficult to 
 discover. It is not (as has sometimes been said) on account of any par- 
 ticular importance which the law attributes to the business of legal pro- 
 fessors, or any particular disposition to afford them protection (though 
 certainly it may not be very easy to discover why a like privilege has 
 been refused to others, and especially to medical advisers). But it is 
 out of regard to the interests of justice, which cannot be upholden, and 
 to the administration of justice, which cannot go on without the aid of 
 men skilled in jurisprudence, in the practice of the courts, arid in those 
 matters affecting rights and obligations which form the subject of all 
 judicial proceedings. If the privilege did not exist at all, every one 
 would be thrown upon his own legal resources. Deprived of all pro- 
 fessional assistance, a man would not venture to consult any skillful 
 person, or would only dare to tell his counsellor half his case. . . . 
 It does not appear that the protection is qualified by any reference to 
 
 I — Compare the authorities cited in W., §§ 2298, 2310. 
 
514 PRIVILEGED COMMUNICATIONS. No. 499. 
 
 proceedings pending or in contemplation. ... If this protection were 
 confined to cases where proceedings had commenced, the rule would 
 exclude the most confidential, and it may be the most important, of all 
 communications ; — those made with a view of being prepared either for 
 instituting or defending a suit, up to the instant that the process of 
 the Court issued. If the protection were confined to proceedings begun 
 or in contemplation, then every communication would be unprotected 
 which a party makes with a view to his general defense against attacks 
 which he apprehends, although at the time no one may have resolved to 
 assail him. But were it allowed to extend over such communications 
 the protection would be insufficient if it only included communications 
 more or less connected with judicial proceedings; for a person often- 
 times requires the aid of professional advice upon the subject of his 
 rights and liabilities with no reference to any particular litigation, and 
 without any other reference to litigation generally than all human affairs 
 have in so far as every transaction may by possibility become the subject 
 of judicial inquiry."'' 
 
 HATTON V. ROBINSON (1833). 
 14 Pick. 416, 422. 
 
 Trespass for taking two mares, a chaise and chaise harness. The 
 defendant pleaded the general issue, and filed a brief statement alleg- 
 ing that he attached them as the property of David Winch. At 
 """ the trial, before Wilde, J., it appeared, that the plaintiff claimed 
 the property under a bill of sale from Winch. The defendant to prove 
 the bill of sale fradulent, offered in evidence the deposition of Samuel 
 Ames, Esq., a counsellor at law in Providence. The plaintiff objected 
 to the admission of the deposition, on the ground that Mr. Ames was 
 employed in the transaction testified to by him, as the attorney of Winch 
 and the plaintiff, and that all he knew in relation to it, was communicated 
 to him in that capacity. The only evidence that Mr. Ames was so 
 employed, was the deposition in question. Mr. Ames, in his deposition, 
 testified that on April 6, 1831, Winch desired him to draw a convey- 
 ance of certain property attached to the Fenner tavern stand in Provi- 
 dence, to the plaintiff, to whom he had contracted to sell it; that he 
 accordingly drew the conveyance; that his impression was, that a small 
 portion of the consideration was to be paid very soon, but that the 
 residue, amounting to the sum of $400 or $500, was secured to Winch 
 by the plaintiff's negotiable note indorsed by one Wesson, which note 
 also the deponent drew. The deponent further testified, that on April 
 30, 1831, Winch again called upon him, and informed him, that he was 
 about to leave Providence with the purpose of residing in the State 
 of New York; that he owed old debts in Massachusetts to a much 
 larger amount than the value of his property; that he also owed a 
 
 2 — Compare the authorities cited in W., §§ 2294, 2295. 
 
No. 500. ATTORNEY AND CLIENT. 515 
 
 considerable sum in Providence, for which he was recently indebted; 
 that his intention was, to convert what salable property he had, par- 
 ticularly a pair of horses and a carriage or carriages, into money, as 
 soon as he could obtain a fair price for them, and with the proceeds 
 to pay his Providence creditors; and that in the meantime his Massa- 
 chusetts creditors pressed him, and as soon as he left Rhode Island 
 for New York, would undoubtedly attach and sacrifice his horses and 
 carriage or carriages. The deponent further testified, that he under- 
 stood Winch, that he had left them with the plaintiff for sale, with 
 the intention from the proceeds from the sale, to give preference to, and 
 pay his Providence creditors, and that he wished to cover them, as 
 far as possible, from attachment by his Massachusetts creditors; that, 
 on the whole, as Winch had come from Massachusetts poor, and the 
 credits he had obtained in Providence had been the means of his acquir- 
 ing what little property he had, the deponent thought his preference of 
 his Providence creditors would not be unfair, and accordingly informed 
 him, that he was willing to draw a mortgage deed from him of the 
 horses, carriage or carriages, to any person he might select ; that Winch 
 said, that he had perfect confidence in the plaintiff, and that the de- 
 ponent accordingly drew such a mortgage deed. . . . 
 
 Merrick and Bottom for the plaintiff: ". . . Where counsel are con- 
 sulted as to what will be the legal effect and consequences of any par- 
 ticular instrument of conveyance, they are as much guarding the rights 
 of their clients and protecting their property, as when litigation is 
 actually in progress ; and communications made by clients, in both cases, 
 are entitled to the same privileges. The current of the decisions, and 
 all the elementary treatises, put the rule strictly on the ground of 
 professional consultation. They do not limit it to consultations on 
 questions in actual or immediately contemplated litigation. It is the 
 character of the communication which is to be considered." . . . 
 
 Newton, Lincoln and Child for the defendant: ". . . It is a forced 
 construction of this deposition to infer from it, that any application 
 was made by Winch for legal advice in the defence of any suit. None 
 was then pending, and it was only among the events which were pos- 
 sible, that any suits would be instituted. Winch certainly could not 
 have asked legal advice, whether His creditors could commence suits. 
 It was not his purpose to defend, if they were commenced. The con- 
 veyance of property would not affect, in any manner, the right of any 
 creditor to recover judgment for his debt, although it might defeat the 
 collection of it. It does not appear, that Winch asked legal advice of Mr. 
 Ames, on any subject, or that the latter gave any legal advice ; and the 
 burden of proof is on the plaintiff, to show that Mr. Ames acted in a 
 professional capacity. The business could have been done as well by 
 any other person as by an attorney at law." . . . 
 
 Shaw, C. J. : "The only question for the Court in the present case, 
 is, whether the deposition of Mr. Ames was properly admitted in evi- 
 dence; and this depends upon the further question, whether the matters 
 
516 PRIVILEGED COMMUNICATIONS. No. 500. 
 
 testified to by him, were to be considered as within the rule of privi- 
 leged communications. . . . T here are many cases, in which an attor - 
 ney is employed in transacting business, not properly professional, and 
 where the same might have Jbeen transacted., by a.ijother_ agent. In, 
 such case the fact that the ag?nt sustains the character of an att orney, 
 does not render the communications attending it, privileged j, andjjjgx 
 may be testified to by him, as by any other agent. ^ . . Ws~ c&aaQL„fe»- 
 ceive that the communications were made to [the attorney, Mr. Ames,] 
 by Winch with the purpose of instructing him in any cause, or engag- 
 ing hiin in the conduct of any professional business, or of obtairi,in g 
 
 "any legal advice or opinion. If the disclosure of his views and pur- 
 poses, in the conveyance of property proposed to be drawn, was not, 
 as stated in some of the books, a mere gratis dictum, the only purpose 
 seems to have been to satisfy Mr. Ames' mind, and remove any scruple 
 that he might entertain, as to the character of the transaction, and to 
 convince him, that whatever might be the legal character of the act, 
 it was not intended with moral turpitude. It did satisfy him, that he 
 was not to be engaged in a conspiracy to cheat, and induced him to 
 consent to draw the deed. Here wa £ no legal advice asked ^no opinion 
 recisiested_as to the .effect anS^^operSfen "of "snxA-^convey-anee-S^^powffl 
 of law, and none giyen^__We are therefore necessarily brought to the 
 conclusion, that either these disclosures were made without any par- 
 ticular motive, or if there was a purpose, connected with the proposed 
 draft, i t was to satisfy M r\_Ame§ls-mind, upon aL. point of fact , not for 
 
 jthe information of his own in point of law, and in either e vent they 
 are not to be deemed privileged communications, whicn the wi toe^s was 
 prohibited frcHnTdiicTosiiig."* ""' 
 
 BARNES v HARRIS (1851). 
 
 7 Cush. 576. 
 
 Action of assumpsit on an account annexed to the writ. At the trial 
 in the court of common pleas, before Hoar, J., the defendant called 
 Stephen Holman, as a witness, and proposed to inquire of him 
 ^" as to a conversation between him and the plaintiff, which took 
 place in the office of Milton Whitney, Esq., an attorney of this court, 
 before the commencement of the suit. The witness having stated, that 
 at the time of the conversation, he was a student at law in Whitney's 
 office; that the plaintiff called there for professional advice; that he 
 did not know but the plaintiff supposed him to be Mr. Whitney; and 
 that the conversation was relative to the plaintiff's claims against the 
 defendant, as to which the plaintiff consulted the witness; the judge 
 ruled, that it was not competent for the witness to testify as to any 
 statements then made to him by the plaintiff, for the purpose of obtain- 
 
 3 — Compare the authorities cited in W., § 2297. 
 
No. 502. 
 
 ATTORNEY AND CLIENT. 
 
 517 
 
 « 
 
 '•^ 
 
 ing professional advice. Whitney was not present at the conversation; 
 he was not the attorney of the plaintiff in this suit; and it did not 
 appear that the plaintiff had ever before consulted him. The jury found 
 a verdict for the plaintiff, and the defendant alleged exceptions. . . . 
 Metcalf, J.: " The testimony of the witness was_excluded,_jimb- 
 ably, either on the ground that he was_a_stiident__i.n an, attorney 's©ffiee> 
 andTEerefore the communication made to him by the plaintiff was 
 privileged, as if made to~tlie~attDniey- himself, &r' on the ground that 
 /the plaintiff supposed that the witness was"an attorney at law. But, 
 ih our judgment, the testimony ought nQfc«to„,baMe.,i,b(;f,ni es-cludeA-aO) 
 any ground. . . . Lord Brougham says, (i Mytne & Keen, 103,) the 
 rule is established out of regard to the interests of justice, which can- 
 not be upholden, and to the administration of justice, which cannot go 
 on, without the aid of men skilled in jurisprudence, in the practice of the 
 courts, and in those matters affecting rights and obligations, which form 
 the subject of all judicial proceedings. If the privilege did not exist at 
 all, every one would be thrown upon his own legal resources.' Such being 
 the reason of the rule which protects communications made to attorneys 
 and counsel, the Court should apply the rule to those cases only which 
 fall within that reason. And it is truly said, in Harrison on Ev. 36, that 
 as the rule operates to the exclusion of evidence, the Courts have always 
 inclined to construe it strictly and narrow its effect. We believe the 
 rule is correctly stated in Foster v. Hall, 12 Pick. 93 ; viz. that it 'J^ 
 confined strictly_to_communications to members of jthfi.JLegaLjxtofesftion, 
 aTTDam&EerTTnd counsellors, jattscasxs.....aad«.SQU£itS£&. andjyia§£jffilji3g£. 
 intervention is necessary to secure and facilitate the, communicgtigQ 
 Ibetween attorney and client ; as interpreters, agents, .awl^attprQgig' 
 ' clerkg .' The witness, in this case, was not of the legal profession, and 
 ^though he was a student in an attorney's office, yet it does not appear 
 khat he was either the attorney's agent or clerk for any purpose. Many 
 'students at law are never either the one or the other. Some of the 
 ^members of this court never were. If the plaintiff's communication was 
 *made to the witness in his capacity as a student in Mr. Whitney's 
 ^office, it is not privileged; Andrews v. Solomon (Peters C. C. 356) ; 
 ^nor if it was made on the supposition that the witness was Mr. Whit- 
 ley or some other attorney at law (Fountain v. Young, 6 Esp. R. 113)."* 
 
 THOMPSON V. KILBORNE (1856). 
 28 Vt. 750, 757. 
 
 Covenant for the alleged breach by the defendant of his contract 
 tinder seal, dated May 8th, 1844, agreeing, among other things, to fur- 
 nish for the use of the plaintiff, for a hop-yard, for the period 
 ®"^ of nine years thereafter, five acres of the defendant's land. . . . 
 The only exception reserved by the plaintiff, upon that branch of the 
 
 4 — Compare the authorities cited in W., §§ 2300, 2301. 
 
518 PRIVILEGED COMMUNICATIONS. No. 502. 
 
 case which related to the alleged refusal of the defendant to permit 
 the plaintiff to occupy the yard after the fall of 1847, was in reference 
 to the admissibility of a part of the deposition of Elbridge D. Johnson, 
 formerly of Derby, but now residing in Peoria, Illinois, offered by the 
 defendant, which the plaintiff claimed related to a communication made 
 by him to the said Johnson, as his counsel; the part of the deposition 
 objected to, and that part in reference to the deponent's understanding 
 of the relation in which he stood to the plaintiff, being as follows: 
 "The said Thompson came to me at my oiBce and had considerable chat 
 about his contract with the said Kilborne. Whether the conversation 
 was professional, or semi-professional, or neither, I am at a loss to de- 
 termine, but I will state the circumstances, and leave the matter to be 
 determined by higher authority. Thompson introduced the conversa- 
 tion by inquiring about his contract with Kilborne for carrying on the 
 hop-yard. I am unable to state its exact purport, but am able to state 
 the substance. He inquired if he could not make use of something 
 which had occurred between him and Kilborne to avoid the effect of 
 his contract to carry on the yard. I am unable to state whether it was 
 something Kilborne had said or done in the matter, and am unable 
 to say what reply I gave him, but he then said he should not carry 
 on the yard again, and he thought the matter he stated would protect 
 him in| so doing, and he inquired of me if I did not "think so. The said 
 Thompson intended to draw from me a legal opinion, I have no doubt, 
 and that he did not expect or intend to pay anything for it, I have as little 
 doubt; that I stated to him what was the law applicable to the case 
 stated, is probable, but that I did not expect to receive any compensa- 
 tion for counsel, or intend to charge anything, is quite certain. I should 
 state, perhaps, that Mr. Thompson was, when I knew him, a man some- 
 what given to legal reflections, and was supposed to have a slight taste 
 for litigation, and was seldom without a controversy on hand, or one 
 in prospect; and we were for many years neighbors and on friendly 
 terms, and I dare say we have had some hundred just such legal con- 
 versations as the one above detailed, about his numerous controversies, 
 which were all equally fruitless of fees, except when he got into a suit, 
 when he usually employed me as counsel, and paid me, not what I 
 charged for my services, but what we agreed upon whenever we got 
 through with the not over agreeable process of a settlement of our 
 accounts. It is possible, also, that the freedom with which I was accus- 
 tomed to converse with him on legal subjects, and without charge, 
 may have led him into the habit of getting his law for nothing from 
 me, at this and other times ; at all events, it is quite as much my fault 
 as his that I am not able to decide whether the conversation in ques- 
 tion was a privileged communication or not. I am unable to say 
 whether he understood our conversation as a consultation, or just a 
 chat to fortify a determination he had already taken about the business. 
 I may say that a different locality has taught me a much more sensible 
 practice in such matters, and further deponent saith not." The court 
 
Ko. 503. JURORS. 519 
 
 allowed the deposition to the point above designated to be read to the 
 jury, to which the plaintiff excepted. . . . 
 
 Redfield, Ch. J.: "The first question made in the present case is, 
 whether the plaintiff's communication to Johnson was under the confi- 
 dence of the relation of counsel and client. It seems to us not to be 
 of that character. There was no retainer, and nothing _to_shg,w, that the 
 
 plaintiff sought the advice with any view to regulate his future con- 
 duct, in regaird ^B~"a™geMihg 'oF"expected litigation. And, had_any 
 retainef been charged, there is every reason to believe the plaintiff, 
 could justly have resisted the claim upon the facts stated by Johnson. 
 And, had Johnson, the next hour, received an application for counsel, 
 and retainer, upon the other side, no one can question his being at fujl 
 liberty to engage. This anomalous relation testified to in the deposi- 
 tion, and which seems so much to puzzle Johnson, and which he so 
 justly deprecates, certainly grows out of a too common facility, upon 
 the part of the profession, in this State, to undervalue their profes- 
 sional and official character, as sworn officers of the highest judicial 
 tribunal in the State. The practice of giving advice, upon legal sub- 
 jects, without study and examination, and without corresponding pay, 
 and a distinct retainer, is certainly a vicious one. The practice of the 
 profession of giving street advice misleads the general opinion in 
 regard to the value and dependence upon such advice. It would no 
 doubt be better for the profession, and their clients both, if all profes- 
 sional advice, in regard to the prosecution and defense of claims, were 
 given in writing, as it is in many places, and both parties are thereby 
 put under the proper responsibility in regard to it, the one to pay for 
 it and the other to make it hold good, or to show, at least, that it was 
 not notoriously bad. But, at all events, we cannot regard a conversa- 
 ti on of this loose and Indefinite character "aErTntrth!d"tO''the"^rotecti^ 
 Clol' professional confidence!"" 
 
 COVENEY V. TANNAHILL (1841). 
 I Hill N. Y. 33, 35. 
 Motion by the defendants, Edwards & McKibben, to set aside a 
 report of referees made in favor of the plaintiff. The defendants were 
 partners under the name of John Tannahill & Co., and, in this 
 action of assumpsit, the plaintiff gave in evidence an account 
 stated in writing on the 3d September, 1839, with an acknowledgment 
 at the end, signed John Tannahill & Co., in the handwriting of Tanna- 
 hill, by which the balance was admitted to be due the plaintiff of 
 $734.36. The defendants . . . called Seth E. Sill as a witness, wha 
 acted as counsel for the plaintiff on the hearing, and put to him the 
 following questions: i. Whether he was present when the account 
 stated was signed; 2. If so, when and where it was signed, and who. 
 was present ; 3. When he first saw the said account stated, and whether 
 
 S — Compare the authorities cited in W., § 2303. 
 
520 PRIVILEGED COMMUNICATIONS. NO. 503. 
 
 the acknowledgment of a settlement and balance due was endorsed on 
 the account when he first saw it. To which questions the witness re- 
 plied, that all his knowledge of the writing had been obtained by him 
 as counsel in this cause, and that he could not answer the questions 
 without violating the confidence reposed in him by his client as counsel 
 in the cause. The referees decided that the witness should' not answer 
 the questions put to him. . . . 
 
 Bronson, J. : "Confidential cpmmunications-Jietween attorney and 
 client, concerning the matter to which the retainer relates, are not to 
 Tie disclosed in court, unless the client waives his privilege. The mode 
 in which the information is communicated — -whether by an oral state- 
 ment of facts, or by delivering a written instrument— cannot be impor- 
 tant. The^j^rincip^^^is the^same in whatever way the iniormatioti 
 passes. The policy of the law allows a man to make the best defence 
 in his power. Whatever may be his delinquency, he is permitted tp 
 confer freely with his counsel, and to place in his hands any paper 
 touching the matter in question, without the peril of having his con- 
 fidence betrayed under the forms of law. The attorney may be calleji 
 to prove the existence of a paper, and that it is in his possession, for 
 I the purpose of enabling the other party to give parol evidence of its 
 I contents. But he cannot be compelled to produce or disclose the con- 
 jtents of a paper which has been deposited with him by his client. . . . 
 "This privilege of the client does not extend to every fact which 
 the attorney may learn in the course of his employment. There is a 
 ^^jgeceoce,. in principle, ..bfitween cowffiMni£g£joa.?,j6liai6(^ by ^^clienj^ 
 and acts -done hy him in the presence of^the. attorney. Jt may be, and 
 undoubtedly is, sound policy to close the attorney's mouth in relation 
 to the former, while in many cases it would be grossly immoral to do 
 so in relation to the latter. ... I will not undertake to say how far 
 the distinction between the communications and the acts of the client 
 may extend; but the re can be no good reason fo r excluding thp a ttor- , 
 ney when he has witnessed a transaction litTthe wax. of business^ietween - 
 his client and a third person; as the adjustment of an account, Jhe_ 
 execut ion of a deed, the payment of a sum of money, the giving up-oi. 
 securities, or the like. It is not necessary that a man should have an 
 attorney to witness his dealings with third persons ; and if one is called 
 in, I can see no reason why he, like any other person who was present, 
 should not be sworn to prove what was done. 
 
 "In^the casejit bar, I feel no d|fficulty_inL_Ssiying^Jiiat_Mr.^ Sill-Should— 
 have been .rnqjuired jtp^ answer the fi^two ques.tiatiajiKhi£hu.ivere put te- 
 Jlijiu. . . . The substance of the first two questions put to the witness 
 is — 'Was you present when the account stated was signed; when and 
 where was it done, and who was present?' . . . The meaning of the 
 answer is, that if the witness was present and saw the paper signed, 
 &c. he was so present as counsel for the plaintiflf. The case then comes 
 to this : The plaintiff, in adjusting an account with a third person, and 
 procuring a written acknowledgment of a balance due, calls in a coun- 
 
No. 504. ATTORNEY AND CLIENT. 521 
 
 seller at law to witness the transaction; and the question is, whether 
 the attorney shall be permitted to speak without the leave of his client? 
 Upon that question I cannot entertain a doubt. What was done and 
 said between plaintiff and Tannahill in the way of business, cannot be 
 turned into a confidential communication between attorney and client, 
 merely because the plaintiff had an attorney present to hear and see what 
 took place. No secret was confided to the attorney, and he might have 
 been required to answer, not only when and where the account, was 
 signed, but as to everything that was done and said between the plain- 
 tiff and Tannahill on that occasion, so far as the matter would be per- 
 tinent if proved by any other witness. If any communications passed 
 between the attorney and client apart from Tannahill, these may be 
 privileged ; but nothing! else. . . . 
 
 "The third question proposed to the witness was, in substance, 
 'When did you first see the account stated, and^was the evidence of a 
 seJIIeinenTendorsed on_the account when_ you, first saw it?' Although 
 the question does not necessarily imply so much, it was understood on 
 the hearing as intended to draw from^ the _witness-an -admission- that he- 
 had seen tEe^ paper in the hands of his, client, or- received -it from him, 
 in a"3ifferent state or condition from that in which -it appeared Jjruthe 
 trial. If such was the aim of the defendants in putting the question, I 
 'THink the referees were right in not allowing it to be answered. We 
 have'^atfeady' seen, that the" attorney cannot be compelled either to pro- 
 duce or 'to 'drs'close the conterits 6f"a paper which he has received from 
 his client; . . . The principle _is,_ that all confidential- communications 
 between attorney and client, whether written or oral, are alike privi- 
 leged, if the praintTEfTatinyparticular time, delivered or exhibited the 
 Account to his attorney without the evidence of a settlement endorsed 
 ipon it, it was the same thing, in substance, as though he had at that 
 ime told him verbally that he had an account in that plight; and the 
 j6ne form of communication is, I think, as much privileged as the 
 tother."* 
 
 MITCHELL'S CASE (1861). 
 13 Abb. Pr. 241). 
 Appeal from an order of commitment for contempt. Mr. Mitchell was 
 an attorney and counsellor-at-law, and was, as such, retained by, and act- 
 ing for, one McKechnie, who was the defendant in an action brought 
 ^^^ by J. H. McCunn and J. Moncrief, in the Court of Common Pleas 
 for the city and county of New York, to recover from McKechnie the 
 possession of a certain lot of land in that city. Upon the trial of that 
 
 6 — Ellenborough, L. C. J., in Robson v. dense is as privileged as another. He 
 
 Kemp, 5 Esp. 52, 55 (1803): "The act cannot be said to be privileged as to what 
 
 [of destroying a power of attorney] can- he hears, but not to what he sees, where 
 
 not be stripped of the confidence and com- the knowledge acquired as to both has been 
 
 munication as an attorney, the witness derived from his situation as an attorney." 
 
 being then acting in that character. One L. C. Brougham, in Greenough v. Gas- 
 
522 PRIVILEGED COMMUNICATIONS. No. 504. 
 
 action before his honor Judge Brady, one Bettz was examined as a 
 witness for the defendant, and upon examination testified that he, Bettz, 
 claimed the title to the land, that the defendant McKechnie was his 
 tenant, and that he, Bettz, was defending the action as landlord of the 
 defendant; and being asked whether he had in his possession any old 
 deeds, leases, or assignments relating to the land, he answered that he 
 had received from his grantors a certain old lease and other papers, 
 which he had kept in his possession until a few days before the trial, 
 when he had delivered them to John W. Mitchell, his attorney, and the 
 attorney of the defendant in the action; and being asked to produce the 
 said old lease and other papers, he answered that he was unable to do 
 so, because they were in Mr. Mitchell's possession. Mr. Mitchell was 
 then in court, acting as the attorney and counsel of the defendant on 
 the trial. He was thereupon called as a witness by the plaintiffs, , and 
 on his examination, being asked: "Have you in your possession any 
 old leases or deeds relating to this property, placed there by Mr. Bettz ?" 
 replied, that he had some papers of Mr. Bettz's, but that he did not 
 know what they were; and on being requested by the Court to examine 
 the papers and see, he declined to do so, objecting on the grounds that 
 he was privileged from testifying as to such matters, they having come 
 to his knowledge from his client, that he had not been subpoenaed, and 
 that he had had no notice to produce the papers. During a brief sus- 
 pension of the proceedings pending this examination, Mr. Mitchell de- 
 livered the bundle of papers to Mr. Bettz, with a suggestion that he 
 carry them to the office of his counsel. After the proceedings were re- 
 sumed, this fact appearing upon the continued examination of Mr. 
 Mitchell, the plaintiffs applied for an attachment for contempt against 
 him ; but it was finally arranged that the application should be sus- 
 pended, and the case adjourned, upon a stipulation that Mr. Mitchell 
 should appear on the adjourned day with the papers in the same. On 
 the same day Mr. Mitchell was served by the plaintiffs with subpoena 
 duces tecum, requiring him to produce the papers on the adjourned day. 
 After the adjournment, the parties appeared on the 27th of May, and 
 j Mr. Mitchell, being called to the stand and asked if he had brought 
 with him the bundle of papers in question, replied that he had. Being 
 requested to look at them, and inform the Court whether they had re- 
 lated to the lands in suit, he refused to do so. The Court thereupon 
 ordered the witness to be committed for ten days to the county jail, for 
 contempt of court. From this order the present appeal was taken. 
 
 Daly, F. J.: "Before the important change in the law requiring a 
 party to an action to be examined as a witness at the instance of the 
 adverse party, the general principle was recognized, that no one in a 
 
 kell, I Myl. & K. 98, 104 (1833): "[The ing been brought to a certain place by the 
 
 privilege does not exist] where there could circumstance of his being attorney, but of 
 
 not be said, in any correctness of speech, which fact any other man if theie would 
 
 to be a communication at all, — as where, have been equally cognizant." 
 for instance, a fact, something that was Compare the authorities cited in W., 
 
 done, became known to him from his hav- §§ 2306-2309. 
 
If®. 5®4. ATTORNEY AND CLIENT. 523 
 
 ■court of law could be compelled to give evidence against himself. . . . 
 The principle of exemption was applied in its broadest extent to parties 
 to actions at law, who could not be compelled to give evidence; and in 
 respect to the production of documentary testimony, as a party to an 
 action was not bound to give evidence, he could not be required to 
 produce papers to be used against him as evidence; and if a paper had 
 been deposited by him with his attorney, the attorney's possession was 
 deemed the possession of the party, and the attorney could not be re- 
 quired to produce it, nor even any other person having the temporary 
 possession of it in right of the party. If a document was in the pos- 
 session of the party to an action at law, or in the possession of his 
 attorney, all that could be done was to give him notice to produce it; 
 and if he failed to do so, the other party was at liberty to give secondary 
 evidence of its contents; or if the production of the document itself 
 -was essential, and he would not produce it, the court would, if he was 
 a defendant, strike out his answer, or if a plaintiff, nonsuit him — a 
 practice introduced into courts of law from the Court of Chancery. 
 But the attorney might be called, and was bound to answer whether or 
 not he had the paper in his possession, that the other party might be 
 enabled to give secondary evidence of its contents, which he could not 
 •do until he had first shown that he was unable to produce it; and 
 though the attorney could not be required to disclose the contents of 
 the paper, his examination might be carried at least so far as to show, 
 with reasonable certainty, that the document in his possession was the 
 one respecting which the other party proposed to give evidence. . . . 
 The rule was also well established, that neither a party nor his legal 
 adviser would be compelled in a court of justice to disclose the confi- 
 dential communication which had passed between them in respect to 
 the matter upon which the party had sought professional advice. The 
 principle which appears to have been recognized as far back as the days 
 of Elizabeth (Cary's R., 127, 88, 89), was not confined to courts of law, 
 but was equally acted upon by the Court of Chancery, where the aid 
 •of that court was sought to compel a discovery of evidence. On an 
 application for a discovery, a court of equity would neither compel nor 
 permit a solicitor to disclose what his client had communicated to him 
 in professional confidence, nor compel the production of letters which 
 Tiad passed between them, or through intermediate agents upon the busi- 
 ness, containing or asking legal advice or opinions, nor cases prepared 
 at the instance at the client for the opinion of counsel. . . . 
 
 "Such was the state of the law before the enactment of the pro- 
 vision compelling parties to action to be examined as witnesses at the 
 instance of an adverse party. The provision has brought about a very 
 material change ; but before proceeding to inquire into the efifect of the 
 enactment upon the question of privilege, it is very plain, that by the 
 law, as it stood before this change was ma:de, the" conduct of Mr. 
 "Mitchell amounted to a contempt. His refusing to produce papers ac- 
 knowledged to be in his possession, for the reason that it would be a 
 
524 PRIVILEGED COMMUNICATIONS. NO. 504. 
 
 breach of his privilege as attorney for the defendant, was assuming the 
 ~ right of determining for himself the question of privilege, which was 
 not his province, but that of the Court; and his disobedience of the 
 order of the judge to produce them, was a very plain case of contempt, 
 upon the authority of the cases that have been cited. It was a con- 
 tempt to wilfully deprive the court of the means of determining whether 
 the principle of protection extended to the papers in his possession or 
 not, and it would not be the less a case of contempt, even assuming that, 
 upon what was stated to the court, a case of privilege was shown; for 
 though a judge should decide erroneously upon the question of privi- 
 lege, the order he makes is nevertheless to be obeyed. If it were other- 
 wise, it would always be in the power of a witness to withhold evidence 
 whenever he thought fit to consider himself privileged. 
 
 "But Mr. Mitchell was mistaken, since the enactment above referred 
 to, in supposing that he had any privilege at all. The exemption of 
 the attorney was never regarded as his personal privilege, but as exist- 
 ing purely for the protection of his client. . . He was, in this respect, 
 in the language of Chief Baron Gilbert, 'considered as one and the same 
 person with his client' (Gilbert on Evidence, 138) ; and if, by a change 
 in the law, a party to an action has no longer any privilege, it follows 
 as a matter of course, that his attorney can have none. The provision 
 in question declares, that 'a party to an action may be examined as a 
 witness, at the instance of the adverse party, and for that purpose may 
 be compelled to testify in the same manner, and subject to the same 
 rules of examination, as any other witness.' This sweeps away the rule 
 of the common law, that parties to actions should not be compelled to 
 give evidence against themselves; and every privilege, either of the 
 party or of his attorney, that was founded upon it, is gone. I suppose 
 that the protection that was extended to the confidential communica- 
 tions between attorney and client remains unaffected, as the reason 
 upon which that rule was founded is as applicable now as it was before ; 
 but with this exception, a party to an action, or his attorney, are no 
 longer privileged to withhold testimony. A party to an action may be 
 compelled, by a subpoena duces tecum, to produce papers and documents, 
 upon the trial, to be read in evidence. . . .When the Code, therefore, 
 declares that a party to an action may be compelled to testify in the 
 same manner, and subject to the same rules of examination, as other 
 witnesses, it is obvious that the meaning is, that whatever may be re- 
 quired of other witnesses may be required of him. If they must pro- 
 duce books and papers, so must he; and if he has placed them in the 
 possession of his attorney, agent, or any other person, the one who has 
 them in actual custody may be compelled to bring them before the 
 court, to be used as evidence. . . . The general rule of courts of equity, 
 that wherever the client may be called upon to produce papers, the at- 
 torney, if they are in his possession, may be required to produce them, 
 is the proper rule, now that parties to actions are made witnesses. 
 "There may possibly be cases in which the deposit of a document with 
 
No. 505. ATTORNEY AND CLIENT, 525 
 
 an attorney for advice and counsel, may bring it within the rule of 
 protection; though I can conceive of none, if the client would himself 
 be bound, if he had it in his possession, to produce it as a witness. In 
 this case, however, there could be no pretence that the papers in ques- 
 tion were left by the witness Bettz with Mitchell for professional advice 
 and counsel, as Mitchell declared that he could not tell what they were 
 without examining them; nor, when first interrogated respecting them, 
 whether he had them in his possession or not, without looking into a 
 bundle of papers which he had with him in court. He was, therefore, 
 either ignorant of their nature and contents, or else he stated what was 
 untrue. We are bound to presume the former ; and if he did not there- 
 fore know what they were, the fact that they were left with him in 
 professional confidence would not protect them. . . . Mr. Mitchell did 
 not declare that the papers had been left with him by Bettz for profes- 
 sional advice or assistance, but he put his objection on the ground that 
 to produce them would be a breach of his privilege as attorney for the 
 defendant. They were not placed in his hands by the defendant, but 
 by the witness Bettz; and if any privilege could exist, it must have 
 been as the attorney of Bettz, who, as the owner of the land, was de- 
 fending the suit against his tenant; but he had no privilege either as 
 the legal adviser of Bettz, or as the attorney of the defendant. Either 
 of them could have been examined as witnesses, and required, if they 
 had the papers in their possession, to produce them; and he could have 
 no privilege where they had none. 
 
 "Upon both grounds, therefore, it was a case of contempt: first, be- 
 cause it was right of the judge to determine whether there was any 
 privilege or not, and the duty of the witness to be governed by his 
 decision; and secondly, because he had no privilege entitling him to 
 withhold the papers in his possession from being given in evidence."^ 
 
 SKINNER V. GREAT NORTHERN R. CO. (1874). 
 L. R. p Exch. 2p8. 
 Rule to vary an order for inspection, made at Chambers by Keating, 
 J., in an action brought to recover damages for personal injuries al- 
 leged to have been sustained by the plaintiff through the defend- 
 ""* ants' negligence, whilst he was traveling as a passenger on their 
 line. The document of which inspection was ordered comprised, 
 amongst others, two reports, dated respectively the 15th of December, 
 1873, ^iid the 4th of February, 1874, made to the defendants by Mr. 
 Jackson, their medical officer, after examining the plaintiff. The ex- 
 aminations to which the reports referred were held, and the reports 
 were made, before any action had been commenced or any communication 
 made by the plaintiff's attorney, but after a claim for compensation 
 had been made by the plaintiff and in consequence of that claim. The 
 
 7 — Compare the authorities cited in W.,§ 2307. 
 
526 PRIVILEGED COMMUNICATIONS. No. 505. 
 
 rule was to vary the order by excluding these reports. Pritchard shewed 
 cause : "The decisions in the Courts of Queen's Bench and the Com- 
 mon Pleas, with respect to this class of documents, are not altogether 
 consistent; in this Court there is no reported decision." 
 
 Bramwell, B. : "The distinction is this ; where an accident happens, 
 and the officials of the company in the course of their ordinary duty, 
 whether before or after action brought, make a report to the company 
 that report is subject to inspection; but where a claim has been made, 
 and the company seek to inform themselves by a medical examination 
 as to the condition of the person making the claim, inspection of that 
 report is not granted ; that practice has been constantly followed in this 
 Court. . . . We have to choose between the decision of the Queen's 
 Bench and that of the Common Pleas, and we follow the latter, which 
 is in conformity with the practice of this Court. The rule must be 
 made absolute."* 
 
 COLEMAN'S WILL (1888). 
 Ill N. Y. 220, 226, jp N. E. 77. 
 RuGER, C. J. : "The probate of the will of William Coleman, de- 
 ceased, was contested before the surrogate by his widow and several 
 of his children and grandchildren, upon the ground that he was 
 *" not of sound mind and memory at the time of its execution, and 
 its execution was procured through undue influence, fraud and intimi- 
 dation exercised over him by Robert S. Coleman. The will was ad- 
 mitted to probate, and the decree was affirmed upon appeal by the Gen- 
 eral Term. . . . The most material question in the case arises over the 
 exception taken by the contestants to the admission of the evidence of 
 the witnesses Hughes and Northrup, as to conversations had by them, 
 respectively, with the testator at the time of receiving instructions in 
 reference to a draft of the will offered for probate, and another drawn 
 about two years previously by the same attorneys. The testimony given 
 by these witnesses was undoubtedly very material and important in its 
 bearing upon the issue tried, and if erroneously admitted would lead to 
 a reversal of the judgment appealed from. The evidence showed that 
 the witnesses were a firm of lawyers, residing at Sandy Hill, and were 
 employed by the testator in their professional capacity to draw such 
 •wills, and that the conversations testified to, were had with them for 
 the purpose of enabling them to execute the instructions of the testator. 
 That these interviews were had in pursuance of and under the sanc- 
 tion of a professional employment, and that communications made by a 
 client under such circumstances to his attorneys, were clearly within 
 the protection of the statute, we have no doubt. The prohibition of the 
 statute, therefore, applies to these communications, and they were in- 
 admissible as evidence unless brought within the provisions of section 
 836, authorizing their disclosure. By that section the pledge of se- 
 
 8 — Compare the authorities cited in W., §§ 2317-2319. 
 
No. 507. ATTORNEY AND CLIENT. 527 
 
 crecy imposed by the statute is to be observed, unless its provisions 'are 
 expressly waived' by the client. There is nothing in this section re- 
 quiring the waiver to be made in writing, or in any particular form or 
 manner, or at any particular time or place; but it is required to be an 
 express waiver, and made in such manner as to show that the testator 
 intended to exempt the witnesses, in the particular instance, from the 
 prohibition imposed by the statute. An examination of the will itself, 
 as well as the evidence of all of the witnesses present on the occasion 
 of the execution, concur in establishing the fact that the testator re- 
 quested both Hughes and Northrup to sign the attestation clause of his 
 first as well as of his second will, as witnesses thereto. That request 
 implies not only information as to the necessity of such signature's to 
 the validity of the instrument executed, but also knowledge of the obli- 
 gations which they assumed in respect to the proof thereof after his 
 death. He must have been aware that his object in making a will 
 might prove to be ineffectual unless these witnesses could be called to 
 testify to the circumstances attending its execution, including the con- 
 dition of his mental faculties at that time. ... It cannot be doubted 
 that, if a client in his lifetime should call his attorney as a witness in 
 a legal proceeding, to testify to transactions taking place between himself 
 and his attorney, while occupying the relations of attorney and client, 
 such an act would be held to constitute an express waiver of the seal 
 of secrecy imposed by the statute, and can it be any less so when the 
 client has left written and oral evidence of his desire that his attorney 
 should testify to facts, learned through their professional relations, 
 upon a judicial proceeding to take place after his death? We think 
 not."» 
 
 LAYMAN'S WILL (1889). 
 40 Minn. 57/, 42 N. W. 286. 
 From a judgement of the probate court of Hennepin county, admit- 
 ting an instrument to probate as the last will of Martin Layman, de- 
 ceased, the contestant, Lizzie Haley, a grand-daughter of the 
 *"' testator, appealed. 
 
 Collins, J.: "But two questions are presented for our considera- 
 tion upon this appeal : First. Did the trial court err in admitting cer- 
 tain testimony of the witness Laing, objected to by the contestant on 
 the ground that it was incompetent and inadmissible, by reason of 
 Gen. St. 1878, c. 73, § 10? . . . The principal question in this case seems 
 to have been as to the sanity of the deceased wTien he executed the in- 
 strument oifered for probate, and alleged by the proponents to be his 
 last will and testament. The witness Laing was an attorney at law, 
 and had prepared the will in question. He had also served the decedent 
 in other matters as his legal adviser. In this way he had acquired 
 some knowledge of the mental condition of the deceased, and was more 
 or less qualified to express an opinion as to his sanity. . . . The witness 
 — Compare the authofities cited in W., §§ 2314-2315, 
 
528 PRIVILEGED COMMUNICATIONS. No. 507. 
 
 Stated his professional connection with the testator for quite a period of 
 time before his death, including the day upon which the will was drafted 
 and signed, and also testified that he had many conversations with him, 
 always upon legal business. He was then permitted, the contestant ob- 
 jecting, to narrate the details of the business which was transacted, 
 what the deceased counselled the witness about, what he said, and what 
 advice and counsel he was given by the attorney. The full particulars 
 of one or two interviews, in no manner connected with the making of 
 the will, were related to the jury. 
 
 "These communications between the decedent and his attorney were 
 privileged at common law as well as by statute, the object of the rule 
 being the protection of the client and his estate. And while many text- 
 writers assert emphatically that the seal of secrecy remains forever, 
 unless removed by the party himself, there is an abundance of authority 
 for saying that, upon the decease of the only person who could, in his 
 life-time, exercise the privilege of waiver, the rule should not be so 
 perverted by a strict adherence to it as to render it inconsistent with its 
 objects, and thus bring it into direct conflict with the reason upon which 
 it is founded. The object of the rule, so far as it relates to this class 
 of communication, being the protection of the estate, there remains no 
 reason for continuing it when the very foundation upon which it pro- 
 ceeds is wanting. The testimony called for was quite necessary in or- 
 der to determine the weight which ought to be given the witness' opin- 
 ion as to the mental condition of the testator, and his disclosures in no 
 way reflected upon the character or reputation of the deceased. The 
 testimony when given served to protect the estate, and tended to aid in 
 a proper disposition of it. The issue in the case was as to the mental 
 soundness of a person under whom each litigant claimed, and, whatever 
 the result, the interest and the estate of the deceased were not prejudi- 
 cially affected. It is not an action in which the success of an adverse 
 third party must prove detrimental to the property. Neither of these 
 litigants can be permitted to invoke the rule respecting privileged com- 
 munications for the purpose of excluding material and important evi- 
 dence of the character above described upon the only question involved 
 in the dispute, namely, the sanity of the deceased."^" 
 
 10 — Turner, V. C, in Russell v. Jack- that it belongs to the executor as against 
 
 son, 9 Hare 387, 393 (1851): "In the the next of kin, and in such a case as 
 
 cases of testamentary dispositions, the the present. In the one case the question 
 
 very foundation on which the rule pro- is whether the property belongs to the 
 
 ceeds seems to be wanting; and in the client or his estate, and the rule may well 
 
 absence, therefore, of any illegal purpose apply for the protection of the client's 
 
 entertained by the testator, there does not interests. In the other case the question 
 
 appear to be any ground for applying it. is to which of two parties claiming under 
 
 That the privilege does not in the client the property in equity belongs, 
 
 all cases terminate with the death of the and it would seem to be a mere arbitrary 
 
 party, I entertain no doubt. That it be- rule to hold that it belongs to one of them, 
 
 longs equally to parties claiming under rather than to the other." 
 
 the client as against parties claiming ad- Compare the authorities cited in W.> 
 
 versely to him, I entertain as little doubt; § 2329. 
 but it does not, I think, therefore follow 
 
No. 509. HUSBAND AND WIFE. 529, 
 
 5. Husband and Wife.^^ 
 
 MERCER V. STATE (1898). 
 40 Fla. 216, 24 So. 144. 
 
 Taylor, C. : "The plaintiffs in error were on the loth day of June, 
 1897, indicted, jointly with one Westley Bush, in the circuit court of 
 Jackson county, for willfully driving an ox upon a railroad track. 
 ^"" . . . Upon the cross-examination of J. E. Brock, one of the 
 State's witnesses, a letter written by him to his wife was exhibited to 
 him by the attorneys for the defendants; and he was asked if he had 
 written such letter, to which he replied, in substance, that he had writ- 
 ten the letter, but that the following words, 'that I never saw the boys 
 that night that the ox was put upon the road,' then contained in it, were 
 not put into the letter by him, and were not in it when he sent it to his 
 wife. . . . With this identification of the letter, and by consent of the 
 State attorney as to the time and order of its introduction, it was of- 
 fered in evidence on behalf of the defendants in rebuttal of the evidence 
 of the witness who wrote the letter; but its admission in evidence was 
 objected to, both by the State and by the witness whose letter it pur- 
 ported to be, upon the ground that, being a letter from the witness to 
 his wife, it was a confidential communication, as between husband and 
 wife, and therefore privileged. This objection was sustained. ... In 
 neither of these cases decided here, nor in any other State having simi- 
 lar enabling statutes, have we been able to find any declaration that the 
 removal from husband and wife of their incompetency as witnesses be- 
 cause of interest in the cause has the effect of empowering either of 
 them, when they become witnesses, to give illegal or incompetent testi- 
 mony, by detailing or exposing those transactions or communications 
 that have passed between them in the sacred confidence and trust that 
 should exist between husband and wife, or that the removal of the in- 
 competency of husband and wife as witnesses on the ground of interest 
 removes the inhibition of the law against the exposure in evidence of 
 confidential communications between them. Such confidential com- 
 munications between husband and wife have always been regarded as 
 privileged. . . . Society has a deeply-rooted interest in the preservation 
 of the peace of families, and in the maintenance of the sacred institution 
 of marriage; and its strongest safeguard is to preserve with jealous care 
 any violation of those hallowed confidences inherent in, and inseparable 
 from, the marital status. Therefore the law places the ban of its pro- 
 hibition upon any breach of the confidence between husband and wife, 
 by declaring all confidential communications between them to be in- 
 competent matter for either of them to expose as witnesses. The reason 
 of the old rule for rendering interested witnesses incompetent to testify 
 
 1 1 — For the hUtory of this privilege, see For the statutes declaring the privilege, 
 
 W., § 2333. 1 see post,, in the Appendix. 
 
530 PRIVILEGED COMMUNICATIONS. No. 509. 
 
 at all in any case to which they were parties was because their interest 
 was supposed to be such a strong incentive to perjury, and, where hus- 
 band and wife was interested in a cause, both of them were excluded 
 as incompetent witnesses for any purpose, because of their unity of 
 interest; they, in the eye of the law, being regarded as one person, and 
 whenever either was interested both were considered to be equally in- 
 terested ; and the incentive to perjury from such interest was considered 
 to be as strongly operative upon the one as upon the other. But the 
 reason of the rule for excluding the confidences between husband and 
 wife as incompetent matter to be deposed by either of them, though they 
 may be competent witnesses to testify to\ other facts, is found to rest in 
 that public policy that seeks to preserve inviolate the peace, good order, 
 and limitless confidence between the heads of the family circle so nec- 
 essary to every well-ordered civilized society. 
 
 "The matter that the law prohibits either the husband or wite from 
 testifying to as witnesses includes any information obtained by either 
 during the marriage, and by reason of its existence. It should not be 
 confined to mere statements by one to the other, but embraces all knowl- 
 edge upon the part of either obtained by reason of the marriage relation, 
 and which, but for the confidence growing out of it, would not have 
 been known. And the same rule prevails in full force after the marital 
 lelation has been dissolved by death or divorce. Where the incompe- 
 tency as witnesses of husband and wife on the ground of interest has 
 been removed by statute, as, is the case here, either of them may testify, 
 for or against the other, to any fact, the knowledge of which was ac- 
 quired by them independently of their marriage relation, in any man- 
 ner not involving the confidence growing out of the marriage relation. 
 . . . The letter from the husband to the wife here excluded, however, 
 was not sought to be introduced directly through the wife as a witness 
 to whom it had been written, but, in some manner not disclosed by the 
 record, had found its way to the possession of the attorneys for the 
 defendants, and its oiifer in evidence was from their immediate custody. 
 There is a considerable array of authorities to the effect that when 
 confidential communications between husband and wife, or between at- 
 torney and client, get out of the; possession and control of the parties to 
 the confidence, and that of their agents and attorneys, and find their 
 way into the possession and control of third persons, regardless of the 
 manner in which the possession thereof may be obtained by such third 
 persons, then such communications lose the protected privilege of the 
 law, and become competent and admissible evidence. We cannot agree 
 to the correctness of this rule thus broadly laid down by these and 
 other authorities, but think the policy of the law, that forms the founda- 
 tion of the^ general rule, is far more strongly upheld and subserved by 
 those authorities that recognize and declare certain classes of com- 
 munications to be privileged from the inherent character of the com- 
 munication itself, and that in such cases the privilege attaches to the 
 communication itself, and protects it from exposure in evidence, where- 
 
No. 510. HUSBAND AND WIFE. 531 
 
 soever or in whosesoever hands it may Be. . . . We think the letter of- 
 fered in evidence here from the witness Brock to his wiffe was inher- 
 ently a confidential communication, and that it was privileged from 
 exposure in evidence, in and of itself, regardless of the custody from 
 which it was produced at the trial, and that its admission in evidence 
 was properly refused."^^ 
 
 CLEMENTS v. MARSTON (1872). 
 52 N. H. 31, 38. 
 
 Assumpsit, by Charles W. Clements against Weare Marston, on an 
 ccount annexed for boarding the defendant, labor, &c., between April 
 I and July 17, 1869. The defendant died since the commence- 
 " ment of the suit, and his administrator did not elect to testify. 
 
 Against the defendant's objection, the wife of the plaintiff was ad- 
 mitted, and sworn as a witness for the plaintiff, generally in the cause, 
 and her testimony related to matters within the knowledge of the de- 
 ceased, and concerning which he might have testified. The wife was 
 permitted to testify to conversations of the deceased with and in the 
 presence of her husband ; also, that she kept the plaintiff's money at the 
 time the account in the declaration accrued, and as to the amount of 
 that money, and how it was expended, and that the same was expended 
 at the time the deceased is said to have boarded with the plaintiff, as 
 stated below. 
 
 Hatch and Page for the defendant: "The admission of the wife as a 
 witness was an error. If she was a competent witness, she must have 
 been made so by Gen. Stats., ch. 209, sees. 20-22. . . . The testimony 
 given by the wife in this case belongs to that class which is expressly 
 declared incompetent by the statute, (i) Gen. State., ch. 209, sec. 21, 
 provide that sec. 20 'shall not be so construed as to render competent 
 their testimony as to any statement, conversation, letter, or other com- 
 munication made by either of them to the other, or to any other per- 
 son;' and sec. 22, by the words 'in any case,' cannot enlarge the limi- 
 tation before made in sec. 21. The wife was here permitted to testify 
 to 'conversations of the deceased with and in the presence of her hus- 
 band,' which fall within the exact letter of the statute proviso. And, 
 moreover, such conversations and communications were matters of 
 marital confidence; that is, they were conversations which she heard 
 and secrets which she obtained through her peculiar relation as the wife 
 of the plaintiff, and were not admissible." 
 
 Wiggin and Leavitt, for the plaintiff: "I. The wife was a compe- 
 tent witness. She was neither a party to the record nor a party in in- 
 terest. No disqualification can be suggested, except that she was the 
 plaintiff's wife ; and the legislature has' seen fit to enact — whether wisely 
 or unwisely is not for us to discuss or the court to determine — that that 
 
 12 — Compare the authorities cited in W., § 2339. 
 
532 PRIVILEGED COMMUNICATIONS. No. 510. 
 
 relationship shall neither disqualify nor exempt from testifying. . . . 
 II. The subjects upon which the plaintiff's wife was examined were not 
 within the exception named in the statute. We claim that it was the 
 intention of the legislature to take away entirely both the disqualifica- 
 tion and the exemption existing at common law, depending upon the 
 existence and continuance of the marriage relation, and based upon 
 'identity of trust,' and the 'fear of sowing dissension between husband 
 and wife, and occasioning perjury,' and to allow and require each to 
 testify to facts within their knowledge not confided to them by the other. 
 Confidential communications between husband and wife are protected 
 from disclosure after the marriage relation has ended by divorce or 
 death, and whatever would be protected from disclosure after the mar- 
 riage relation had ceased, is equally protected from disclosure while the 
 relation continues, and nothing more. ... As to her testimony that she 
 kept her husband's money at this time, and how it was expended, she 
 was acting as her husband's agent, and could properly testify to her acts 
 as such, aside from the statute." 
 
 Sargent, J. : "At common law, a party to a cause could not testify, 
 on the ground that he was interested. Any person not a party, if in- 
 terested in the result of the suit, was excluded as a witness on the 
 ground of interest. Wives were excluded, — ist, on the ground of in- 
 terest, they being interested wherever their husbands were; and 2d, 
 upon the ground of public policy, that it was not expedient to place 
 husband and wife in a position that might lead to dissensions and strife 
 between them, or that might encourage perjury. Hence, wives were 
 not allowed to testify for or against their husbands when they were par- 
 ties to civil proceedings, and, for the same reason, both were excluded 
 when either was a party in a criminal case. . . . The law of 1857, ch. 
 1952, provided that no person should be excused or excluded as a wit- 
 ness by reason of interest as a party or otherwise. This was held not 
 to include the wife of the party. . . . The disqualification of interest 
 was alone removed by that statute. But that was not the only ground 
 upon which the wife of a party had been excluded at common law. The 
 other ground — ^that based on public policy — was untouched, and re- 
 mained in its full force. . . . 
 
 "But one step prepared the way for another, and each legislature 
 went a step beyond its predecessor, until, in 1866, in chapter 4268 of the 
 acts of that year, which is embraced in General Statutes, chapter 209, 
 section 20, the disqualification of interest is not only removed, but it 
 is provided that in certain classes of cases the husband and wife are 
 made competent witnesses for or against each other. An additional 
 section was added in 1867, — section 22, of the same chapter, — providing 
 that, 'the wife may testify fof the husband, or the husband for the wife, 
 in any case where it appears to the Court that their examination as 
 witnesses upon the points to which their testimony is offered would not 
 lead to such violation of confidence' (meaning marital confidence). This 
 section was amended by chapter 20, laws of 1870, so that the wife may 
 
No. 511. HUSBAND AND WIFE. 533 
 
 testify for or against her husband, or the husband for or against his 
 wife, in every case where it appears to the court that their examination 
 as witnesses would not lead to such violation of (marital) confidence. 
 . . . Thus it appears that the present policy of our legislation on this 
 subject is to make the husband and wife competent witnesses for or 
 against each other, just as though they were strangers, in no way con- 
 nected, except in the single case where the Court can see that such 
 testimony would lead to a violation of marital confidence. 
 
 "Applying that principle, and there would seem to be no good reason 
 why the wife should not have testified in the case before us. They are 
 to be allowed or compelled to testify for and against each other, with 
 this single exception; and this violation of marital confidence must be 
 something confided by one to the other simply and specially as husband 
 or wife, and not what would be communicated to any other person un- 
 der the same circumstances. In this case the wife acted as the hus- 
 band's agent and kept his money and knew how it was expended; but 
 all the communications made to her were made to her as such agent, 
 just as he would have made the same communications to any other 
 agent doing the same business. There was no confidential communica- 
 tion between them as husband and wife, but simply the ordinary com- 
 munications between principal and agent; and the communications 
 would be no more confidential than those between other principal and 
 agent. . . . Allowing the wife to testify for or against her husband, in 
 any case where a stranger would have been a competent witness, seems 
 to be the rule now; and, in that view of the case, nothing should be ex- 
 cluded except something that is strictly confidential, and not only so but 
 communicated in strict marital confidence.^' 
 
 4. Jurors}-* 
 
 PHILLIPS V. MARBLEHEAD (1889). 
 148 Mass. 326, ip N. E. 547. 
 
 Petition to the Superior Court for a jury to assess the damages 
 caused by the taking by fhe respondent of land of the petitioner, in 
 July, 1886, for the laying out of Atlantic Avenue in Marblehead. 
 ^"- The respondent called as a witness one Martin, a member of 
 the board of selectmen of Marblehead in 1886, who testified as an ex- 
 pert as to the value of the petitioners' land. Upon cross-examination 
 he testified that the petitioners had in his judgment sustained damage 
 to the amount of three hundred dollars, and no more. The petitioners 
 then offered in evidence, solely for the purpose of contradicting the 
 witness Martin, the record of the board of selectmen of Marblehead 
 made July 27, 1886, showing the laying out of Atlantic Avenue, and 
 
 13 — Compare the authorities cited in W., 14 — For the use of jurors' affidavits to 
 
 5 2336. impeach a verdict, see the Parol Evidence 
 
 Rule, post, Nos. 569-575. 
 
534 PRIVILEGED COMMUNICATIONS. No. 511. 
 
 the amount of damage therefor, signed by Martin together with the 
 other members of the board. The record contained the statement that 
 the petitioner had sustained damage by the taking of their land to the 
 amount of five hundred and fifty-three dollars, and that that sum was 
 awarded the petitioners. The judge ruled that the record was not ad- 
 missible in evidence for the purpose named, and the petitioners ex- 
 cepted. 
 
 Field, J. : "While the deliberations of legislative bodies are usually 
 public, the deliberations of judicial or quasi judicial bodies are private, 
 and there are reasons of public policy why they should not be made 
 public, particularly when the purpose to be served is comparatively un- 
 important. Grand and petit jurors are not permitted to testify to opin- 
 ions concerning the case expressed in their consultations with one an- 
 other, and arbitrators are not permitted to testify to the grounds on 
 which they reached the conclusions declared in the award. For the 
 purpose of contradicting a witness, we think that evidence ought not to 
 be received of the deliberations of selectmen acting in a quasi judicial 
 capacity, and that the certificate of the doings of the board of select- 
 men was rightly excluded." 
 
 EARL OF SHAFTESBURY'S TRIAL (1681). 
 8 How. St. Tr. ^59, 77i- 
 
 Sir F. Withins moved, after the charge to the grand jury, that the 
 
 evidence be heard in court; and L. C. J. Pemberton declared that he 
 
 would grant the motion. The jury then desired to have a copy 
 
 *■'■" of their oath,i° which was given them, and they withdrew. Om 
 
 returning shortly, the following colloquy ensued: 
 
 Foreman: "My lord Chief Justice, it is the opinion of the jury that 
 they ought to examine the witnesses in private, and it hath been the 
 constant practice of our ancestors and predecessors to do it; and they 
 insist upon it as their right to examine in private, because they are 
 bound to keep the king's secrets, which they cannot do if it be done in 
 court". 
 
 L. C. J. Pemberton : "Look ye, gentlemen of the jury, it may very 
 probably be, that some late usage has brought you into error, that it is 
 your right, but it is not your right in truth. . . . What you say con- 
 is — The form of oath administered to keep secret; You shall present no one for 
 grand jurors was as follows: envy, hatred, or malice; but you shall pre- 
 
 "The foreman, by himself, lays his hand sent all things truly as they come to your 
 on the book, and the marshal administers knowledge, according to the best of your 
 to him the following oath: 'My lord, or understanding: So help you God.' The 
 sir (as the foreman's name may be), you, rest of the grand jury, by three at a time, 
 as the foreman of this grand inquest for in order, are sworn in the following man- 
 the body of the county of A, shall dili- ner: 'The same oath which your foreman 
 gently inquire and true presentment make hath taken on his part, you and every of 
 of all such matters and things as shall be you, shall well and truly observe and keep 
 given you in charge; the king's counsel, on your part: So help you God.' " 
 your fellows', and your own, you shall 
 
No. 513. JURORS. 535 
 
 cerning keeping your counsels, that is quite of another nature, that is, 
 your debates, and those things, there you shall be in private, for to 
 consider of what you hear publicly. But certainly it is the best way, 
 both for the king, and for you, that there should, in a case of this na- 
 ture, be an open and plain examination of the witnesses, that all the 
 world may see what they say". 
 
 Foreman: "My lord, if your lordship pleases, I must beg your lord- 
 ship's pardon, if I mistake in anything it is contrary to the sense of 
 what the jury apprehend First, they apprehend that the very words 
 of the oath do binu them, it says, 'That they shall keep the counsel's, 
 and their own secrets :' Now, my lord, there can be no secret in public ; 
 the very intimation of that imply, that the examination should be secret ; 
 besides, my lord, I beg your lordship's pardon if we mistake, we do not 
 understand anything of law". 
 
 Mr. Papillon [a juror] : "If it be the ancient custom of the kingdom 
 to examine in private, then there is something maybe very prejudicial 
 to the king in this public examination ; for sometimes in examining wit- 
 nesses in private, there come to be discovered some persons guilty of 
 treason, and misprision of treason, that were not known, nor thought 
 on before. Then the jury sends down to the court, and gives them 
 intimation, and these men are presently secured; whereas, my lord, in 
 case they be examined in open court publicly, then presently there is no 
 intimation given and these men are gone away. Another thing that may 
 be prejudicial to the king, is, that all the evidences here, will be lore- 
 known before they come to the main trial upon issue by the petty jury; 
 then if there be not a very great deal of care, these witnesses may be 
 confronted by raising up witnesses to prejudice them, as in some cases 
 it has been. Then besides, the jury do apprehend, that in private they 
 are more free to examine things in particular, for the satisfying their 
 own consciences, and that without favour or affection; and we hope we 
 shall do our duty." 
 
 L. C. J. Pemberton : "The king's counsel have examined whether he 
 hath cause to accuse these persons, or not; and, gentlemen, they under- 
 stand very well, that it will be no prejudice to the king to have the 
 evidence heard openly in court; or else the king would never desire it." 
 
 Foreman: "My lord, the gentlemen of the jury desire that it may be 
 recorded, that we insisted upon it as our right, but if the Court over- 
 rule, we must submit to it." 
 
 COMMONWEALTH v. MEAD (1858). 
 12 Gray 161. 
 
 Indictment for the manslaughter of Jeremiah A. Agin. At the 
 
 trial in the municipal court of Boston, before Nash, J., the defendant 
 
 admitted the killing, but contended that it was in self defence. 
 
 John Perham, Jr., testified that he saw the defendant shoot Agin, 
 
 and that Agin was, at the time, between one and thrpe feet from the 
 
536 PRIVILEGED COMMUNICATIONS. No. 513. 
 
 defendant. To contradict Perham, the defendant called several of 
 the grand jurors who found this indictment, and proposed to show by 
 them that Perham testified differently before the grand jury as to the 
 distance between the defendant and Agin when the pistol was fired. 
 But the judge excluded this evidence, on the ground that it was 
 against public policy and the established practice, to allow grand jurors 
 to be called to detail the testimony of witnesses, given on a partial 
 and ex parte examination, and in the grand jury room, for the purpose 
 of impeaching the witnesses at the trial of the indictment. The defend- 
 ant was found guilty, and alleged exceptions. 
 
 BiGELOw, J. : "... The only other question arising in this case is, 
 whether the testimony of the grand jurors is admissible to prove that 
 one of the witnesses in behalf of the prosecution testified differently 
 on his examination before them from the testimony given by him before 
 the jury trials. As to the competency of such evidence the authorities 
 are not uniform. The weight of them is in favor of its admissibility. 
 On principle it seems to us to be competent. The reasons on which 
 the sanction of secrecy which the common law gives to proceedings 
 iefore grand juries is founded are said in the books to be threefold. 
 One is that the utmost freedom of disclosure of alleged crimes and 
 offences by prosecutors may be secured. A second is that perjury and 
 subornation of perjury may be prevented by withholding the knowledge 
 of facts testified to before the grand jury, which, if known, it would 
 be for the interest of the accused or their confederates to attempt to 
 disprove by procuring false testimony. The third is to conceal the 
 fact that an indictment is found against a party, in order to avoid 
 the danger that he may escape and elude arrest upon it, before the 
 presentment is made. . . . But when these purposes are accomplished, 
 the necessity and expediency of retaining the seal of secrecy are at 
 an end. Cessante ratione, cessat regula. After the indictment is 
 found and presented, and the accused is held to answer and the trial 
 before the traverse jury is begun, all the facts relative to the crime 
 charged and its prosecution are necessarily opened, and no harm can 
 arise to the cause of public justice by no longer withholding facts 
 material and relevant to the issue, merely because their disclosure may 
 lead to the development of some part of the proceedings before the 
 grand jury. On the contrary, great hardship and injustice might often 
 be occasioned by depriving a party of important evidence, essential to 
 his defence, by enforcing a rule of exclusion, having its origin and 
 foundation in public policy, after the reasons on which this rule is 
 based have ceased to exist. The case at bar furnishes a good illustra- 
 tion of the truth of this remark. No possible injury to the interests 
 or rights of the government that we can see could happen by a diS' 
 closure of the testimony given by the witness before the grand jury. 
 . . . On the other hand, it is clear that the rights of the accused might 
 ■be greatly affected and his peril much increased, if he can be shut out 
 from showing the fact that an important witness against him is un- 
 
No. 515. JURORS. 537 
 
 worthy of credit, or that his testimony before the jury of trials is 
 to be taken with great caution and doubt, because on a previous occa- 
 sion, when called to testify on oath, he had given a different account of 
 the same transaction from that which he has stated in his evidence 
 at the trial."'- 
 
 Statutes. California, P. C. 1872, §926: "Every member of the 
 grand jury must keep secret whatever he himself or any other grand 
 juror may have said or in what manner he or any other grand 
 juror may have voted on a matter before them; but, may, how- 
 ever, be required by any court to disclose the testimony of a witness 
 examined before the grand jury, for the purpose of ascertaining 
 whether it is consistent with that given by the witness before the court 
 or to disclose the testimony given before them by any person upon a 
 charge against such person for perjury in giving his testimony or 
 upon trial therefor." 
 
 Iowa, Code 1897, § 5267 : "Every member of the grand jury must 
 keep secret the proceedings of that body and the testimony given before 
 it, except as provided in the next section, nor shall any grand juror or 
 officer of the court disclose the fact that an indictment for a felony 
 has been found against a person not in custody or under bail, other- 
 wise than by presenting the same in court or issuing or executing 
 process thereon, until such person has been arrested." lb. § 5268 (dis- 
 closure of a witness' testimony may be made to ascertain its consistency 
 or to prove perjury). lb. §5269: "No grand juror shall be questioned 
 for anything he may say of any vote he may give in the grand-jury 
 room relative to a matter legally pending before it," except for 
 perjury.^ 
 
 5. Government and Informer; Official Documents; State Secrets. 
 
 HARDY'S TRIAL (1794). 
 24 How. St. Tr. 8. 
 
 The witness had reported the existence and doings of secret political 
 societies: "I did not do it of myself, but by advice; a gentleman 
 recommended me by all means to make a report. It was not to 
 "■*■" a magistrate.'' Mr. Erskine: "Then to whom was it?" Ob- 
 jection was made. "I submit he must state the name of the person to 
 whom he communicated it; then have I not a right to subpcena that 
 
 I — Compare the authorities cited in W., 2 — Compare the authorities cited in W., 
 
 S 2363- 5 2360. 
 
538 PRIVILEGED COMMUNICATIONS. No. 515, 
 
 person? I will then ask [this witness]. When did you tell it him? 
 At what place? Who were present? Then I ask that person, Is is 
 true? . . . And if he were to say, I never saw his face [the witness'] 
 till I saw him in court, would not that shake the credit of the witness 
 with any man of understanding? I apprehend it would." Mr. Attor- 
 ney-General (opposing) : "What is the principle upon which the Court 
 says, You shall never ask where he got that information? ... A court 
 of justice does not sit to catch the little whispers or the huzzas of 
 popularity; it proceeds upon great principles of general justice. It 
 says that individuals must suffer inconveniences rather than great pub- 
 lic mischief should be incurred; and it say that if men's names are to 
 be mentioned who interpose in situations of this kind, the conse- 
 quence must be that great crimes will be passed over without any 
 information being offered about them, or without persons taking that 
 part which is always a disagreeable part to take but which at the 
 same time it is necessary should be taken for the interest of the public. 
 . . . Nobody will deny but that it is a hard case; but it has become 
 a settled rule, because private mischief gives way to public conveni- 
 ence." 
 
 Eyre, L. C. J. : "It is perfectly right that all opportunities should 
 be given to discuss the truth of the evidence given against a prisoner ; but 
 there is a rule which has universally obtained on account of its im- 
 portance to the public for the detection of crimes, that those persons 
 who are the channel by means of which that detection is made should 
 not unnecessarily disclosed. . . . [As to (i) the person reported to,] 
 I cannot satisfy myself that there is any substantial distinction between 
 the case of this man's going to a justice of the peace or going to a 
 magistrate superior to a justice of the peace, or to some other person 
 who communicated with a justice of the peace. . . . [As to (2) the 
 person above, advising a report,] I am of opinion the principle extends 
 to that question, because the disclosing who the friend was that advised 
 him to go to a magistrate is a thing which puts that friend in a situation 
 into which he ought not to be put, and into which it is inconvenient to 
 general justice that he should be put. . . . My apprehension is that, 
 among those questions which are not permitted to be asked, are all 
 those questions which tend to the discovery of the channels by whom the 
 disclosure was made to the officers of justice; that it is upon the gen- 
 eral principle of the convenience of public justice not to be disclosed; 
 that all persons in that situation are protected from the discovery; and 
 that, if it is objected to, it is no more competent for the defendant to 
 ask who the person was that advised him to make a disclosure than it 
 is to whom he made the disclosure in consequence of that advice, [or] 
 than it is to ask any other question respecting the channel of com- 
 munication or all that was done under it." 
 
 BuLLER, J. : "My lord chief justice and my lord chief baron both 
 say the principle is that the discovery is necessary for the purpose of 
 obtaining public justice; and if you call for the name of informer in 
 
ISO. 516. STATE SECRETS. 539 
 
 such cases, no man will make a discovery, and public justice will be 
 defeated. Upon that ground, therefore, it is that the informer for the 
 purpose of a public prosecution shall not be disclosed."^ 
 
 DELANEY v. PHILADELPHIA (1794). 
 I Yeates 403. 
 
 Issue was joined in this cause to ascertain the distance of the 
 northern boundary of Dock street, from the south side of Walnut street, 
 on the east side of Second street. For the appellant it was 
 *-^" moved that a subpoena with a clause oijduces tecum, should issue 
 to the surveyor general, to bring with him certain original papers from 
 his office. Smith, J., suggested his doubts, whether the Court could 
 with propriety issue a subpoena with such a clause to the surveyor gen- 
 eral, or any other public officer, having the custody of papers, of 
 which certified copies were evidence. 
 
 Per Curiam : "We ought not to issue a subpoena with such a 
 clause, in the present instance; otherwise the surveyor general or other 
 public officer, might be obliged to take any original public papers from 
 his office to the furthest counties in the state, and the same papers 
 might be demanded in different counties at the same time.'' 
 
 Whereupon the counsel mutually agreed to go together to the 
 office of the surveyor general, and examine the original papers. Mr. 
 Broadhead, the surveyor general, would not permit his clerk to make 
 out copies for the counsel, alleging that it was after office hours on Sat- 
 urday afternoon, although his clerk offered to do the service, on the 
 parties agreeing to make him compensation. The Court directed a sub- 
 poena to issue to the surveyor general, to appear instanter; he appeared 
 accordingly, and attempted to excuse himself, by observing that he 
 could not see sufficiently to make out the copies, and had no clerk who 
 could perform the service; but on being threatened with an attachment 
 by the Court, he produced the original papers.* 
 
 3 — Gray, C. J., in Worthington v. Scrib- discretion of the Government, to be exer- 
 
 ner, 109 Mass. 487, 488 (1872) : "It is cised according to its views of what the 
 
 the duty of every citizen to communicate interests of the public require. Courts of 
 
 to his government any information which justice therefore will not compel or allow 
 
 he has of the commission of an offence the discovery of such information, either 
 
 against the laws. To encourage him in by the subordinate officer to whom it is 
 
 performing this duty without fear of con- given, by the informer himself, or by any 
 
 sequences, the law holds such information other person, without the permission of 
 
 to be among secrets of State, and leaves the Government." 
 
 the question how far and under what cir- Compare the authorities cited in W., 
 
 cumstances the names of the informers § 2374. 
 
 and the channel of communication shall 4 — Compare the authorities cited in W., 
 
 be suffered to be known to the absolute % 2373. 
 
540 PRIVILEGED COMMUNICATIONS. No, 517. 
 
 AARON BURR'S TRIAL (1807). 
 Robertson's Rep., I, i2i, 127, 136, 181, 255; II, 536. 
 
 Treason. The accused moved for a subpoena duces tecum to the 
 President of the United States to attend and bring certain correspond- 
 ence with General Wilkinson, material to aid the defence. The 
 ^^' counsel for the prosecution did not deny that the President was 
 "as amenable to that process as any other citizen," but claimed that 
 "if his public functions disable him from obeying the process, that would 
 be a satisfactory excuse pro hac vice," and that the papers here asked 
 for were state secrets and irrelevant. Mr. Botts, arguing for the ac- 
 cused: "I can never express, in terms sufficiently strong, the detesta- 
 tion and abhorrence which every American should feel towards a sys- 
 tem of State secrecy. It never can conduce to public utility, though it 
 may furnish pretexts to men in power to shelter themselves and their 
 friends and agents from the just animadversion of the law, — ^to direct 
 their malignant plots to the destruction of other men while they are 
 themselves secure from punishment. In a government of responsibility 
 like ours, where all the agents of the public must be responsible for 
 their conduct, there can be but few secrets. The people of the United 
 States have a right to know every public act, every thing that is done 
 in a public way by their public functionaries. They ought to know the 
 particulars of public transactions in all their bearings and relations, 
 so as to be able to distinguish whether and how far they are conducted 
 with fidelity and ability; and with the exception of what relates to 
 negotiations with foreign nations, or what is called the diplomatic de- 
 partment, there ought to be nothing suppressed or concealed. ... I will 
 again predict that, if a secret is inquisitorial tribunal be established by 
 your decision now, ... if you determine that we be deprived of the 
 benefit of important written or oral evidence by the introduction of this 
 State secrecy, you lay, without intending it, the foundation for a sys- 
 tem of oppression. If these things be established, to go down to pos- 
 terity as precedents, the inevitable consequences will be that, whenever 
 any man in the United States becomes an object of the vengeance 
 or jealousy of those in power, he may easily be ruined. A wicked 
 executive power will have nothing to do to effect his destruction but 
 to foment divisions in this country, to encourage and excite accusa- 
 tions by its officers, to deny the use of all public documents that may 
 tend to the justification of the accused, or to render the attainment 
 of exculpatory evidence dependent on the arbitrary whim of its prose- 
 cuting officers, and he will be condemned to sink without the smallest 
 effectual resistance." 
 
 Marshall, C. J. (granting the motion) : "The exceptions [to the 
 accused's right to process] furnished by the law of evidence, with one 
 reservation, so far as they are personal, are of those [persons] only 
 whose testimony could not be received. The single reservation alluded 
 to is the case of the King. Although he may, perhaps, give testimony. 
 
No. 517. STATE SECRETS. 541 
 
 it is said to be incompatible with his dignity to appear under the process 
 of the Court. Of the many points of difference which exist between 
 the First Magistrate in England and the First Magistrate in the United 
 States, in respect to the personal dignity conferred on them by the con- 
 stitutions of their respective nations, the Court will only mention two. 
 (i) It is a principle of the English constitution that the King can do 
 no wrong, that no blame can be imputed to him, that he cannot be 
 named in debate. By the constitution of the United States, the Presi- 
 dent, as well as every other officer of the government, may be im- 
 peached, and may be removed from office on high crimes and misde- 
 meanors. (2) By the constitution of Great Britain the crown is heredi- 
 tary, and the monarch can never be a subject. By that of the United 
 States, the President is elected from the mass of the people, and, on 
 the expiration of the time for which he is elected, returns to the mass 
 of the people again. How essentially this difference of circumstances 
 must vary the policy of the laws of the two countries, in reference to 
 the personal dignity of the executive chief, will be perceived by every 
 one. In this respect, the First Magistrate of the Union may more prop- 
 erly be likened to the first magistrate of a State, — at any rate, under the 
 former Confederation; and it is not known ever to have been doubted 
 but that the chief magistrate of a State might be served with a sub- 
 poena ad testificandum. If in any court of the United States it has ever 
 been decided that a subpoena cannot issue to the President, that deci- 
 sion is unknown to this Court. If upon any principle the President 
 could be construed to stand exempt from the general provisions of the 
 Constitution, it would be because his duties as chief magistrate demand 
 his whole time for national objects. But it is apparent that this demand 
 is not unremitting; and, if it should exist at the time when his attend- 
 ance on a court is required, it would be sworn on the return of the 
 subpoena, and would rather constitute a reason for not obeying the 
 process of the Court than a reason against its being issued. In point 
 of fact, it cannot be doubted that the people of England have the same 
 interest in the service of the executive government — that is, of the 
 cabinet counsel — that the American people have in the service of the 
 executive of the United States, and that their duties are as arduous and 
 as unremitting; yet it has never been alleged that a subpoena might not 
 be directed to them. It cannot be denied that to issue a subpoena to a 
 person filling the exalted station of the Chief Magistrate is a duty which 
 would be dispensed with more cheerfully than it would be performed; 
 but, if it be a duty, the Court can have no choice in the case. If then, 
 as is admitted by the counsel for the United States, a subpoena may 
 issue to the President, the accused is entitled to it of course; and, 
 whatever difference may exist with respect to the power to compel the 
 same obedience to the process as if it had been directed to a private 
 citizen, there exists no difference with respect to the right to obtain it. 
 The guard furnished to this high officer to protect him from being 
 harassed by vexatious and unnecessary subpoenas is to be looked for in 
 
542 PRIVILEGED COMMUNICATIONS. No. 517. 
 
 the conduct of a Court after those subpoenas have issued, — not in any 
 circumstance which is to precede their being issued. . . . [As to the 
 argument that reasons of state might forbid the disclosure,] there 
 is certainly nothing before the Court which shows that the letter in 
 question contains any matter the disclosure of which would endanger 
 the public safety; ... if it does contain any matter which it would 
 be imprudent to disclose, which it is not the wish of the Executive 
 to disclose, such matter, if it be not immediately and essentially ap- 
 plicable to the point, will of course be suppressed. . . . Everything of 
 this kind, however, will have its due consideration on the return of the 
 subpoena. ... I admit, in such a case, much reliance must be placed 
 on the declaration of the President; . . . perhaps the Court ought to 
 consider the reasons which would induce the President to refuse to 
 exhibit such a letter as conclusive on it, unless such letter could be 
 shown to be absolutely necessary in the defence. The President may 
 himself state the particular reasons which may have induced him to 
 withhold a paper, and the Court would unquestionably allow their full 
 force to those reasons." 
 
 To this subpoena, President Jefferson responded, without attend- 
 ance, by a letter to the prosecuting counsel, in which he offered to be 
 examined at Washington by deposition, but explained his non-attend- 
 ance at Court as follows : "As to our personal attendance at Richmond, 
 I am persuaded the Court is sensible that paramount duties to the na- 
 tion at large control the obligation of compliance with its summons in 
 this case; as it would, should we receive a similar one to attend the 
 trials of Blennerhasset and others [co-conspirators] in Mississippi Terri- 
 tory, those instituted at St. Louis and other places on the western waters ; 
 or at any place other than the seat of government. To comply with 
 such calls would leave the nation without an executive branch, whose 
 agency nevertheless is understood to be so constantly necessary that 
 it is the sole branch which the Constitution requires to be always in 
 function. It could not, then, intend that it should be withdrawn from 
 its station by any co-ordinate authority." The President though for- 
 warding the desired letter, added the following: "With respect to 
 papers, there is certainly a public and private side to our offices. To 
 the former belong grants of land, patents for inventions, certain com- 
 missions, proclamations, and other papers patent in their nature. To 
 the other belong mere executive proceedings. All nations have found 
 it necessary that for the advantageous conduct of their affairs some of 
 these proceedings at least should remain known to their executive func- 
 tionary only. He, of course, from the nature of the case, must be the 
 sole judge of which of them the public interest will permit publica- 
 tion."" 
 
 5 — Sianbery, Attorney-General, arguing, was hound, at the instance of the defend- 
 in Mississippi v. Johnson, 4 Wall. 475, ant, to follow it up by process of attach- 
 483 (1866): "If the Court [in Burr's ment to compel obedience to its lawful 
 Trial] in saying that the President was order. At that point, however, the Court 
 amenable to subpoena, was right, the Court hesitated, and not a step further was taken 
 
No. 518. STATE SECRETS. 543 
 
 CooLEY, C. J., Torts, 2d ed., *jf(J (1888) : "If we take the case of 
 legislative officers, their rightful exemption from liabiHty is very plain. 
 Let it be supposed that an individual has a just claim against the 
 State which the legislature ought to allow, but neglects or refuses 
 to allow. In such a case there may be a moral wrong, but there can be 
 no legal wrong. The legislature has full discretionary authority in 
 all matters of legislation, and it is not consistent with this that the 
 members should be called to account at the suit of individuals for their 
 acts and neglects. Discretionary power is, in its nature, independent; 
 to make those who wield it liable to be called to account by some other 
 authority is to take away discretion and destroy independence. ... If 
 we take next the case of executive officers, the rule will be found to 
 be the same. The governor of the State is vested with a power to 
 grant pardons and reprieves, to command the militiaj to refuse his 
 assent to laws, and to take the steps necessary for the proper enforcement 
 of the laws; but neglect of none of these can make him responsible 
 in damages to the party suffering therefrom. No one has any legal 
 right to be pardoned, or to have any particular law signed by the gov- 
 ernor, or to have any definite step taken by the governor in the en- 
 forcement of the laws. The executive in these particulars exercises 
 his discretion, and he is not responsible to the courts for the manner 
 in which his duties are performed. Moreover, he could not be made 
 responsible to private parties without subordinating the executive de- 
 partment to the judicial department, and this would be inconsistent with 
 the theory of republican institutions. Each department, within its prov- 
 ince, is and must be independent. Taking next the case of the judicial 
 department, the same rule still applies. For mere neglect in judicial 
 
 towards enforcing the doctrine laid down cumstances of each case. . . . There 
 
 by the Chief Justice. It then became is no reason why the Governor should 
 
 quite too apparent that a very great error not be called upon to testify as to the 
 
 had been committed. I say a very great time when the engrossed bill was delivered 
 
 error, with the greatest submission to the to him. . . . But I will make no or- 
 
 great Chief Justice, who, on circuit, at der on him for that purpose. 
 
 Nisi Frius, suddenly, on a motion of this Such order ought not to be made against 
 
 kind, had held that the President of the the Executive of the State, because it 
 
 United States was liable to the subpoena might bring the Executive in conflict with 
 
 of any Court as President." the Judiciary. If the Executive thinks he 
 
 Zabriskie, C, in Thompson v. R. Co., ought to testify, in compliance with the 
 
 22 N. J. Eq. Ill, 113 (1871): **The sub- opinion of the Court, he will do it without 
 
 poena was [in this case] directed to the an order; if he thinks it to be his official 
 
 Governor by his individual name, and not duty, in protecting the right and dignity 
 
 as Governor. Every person, whatever his of his office, he will not comply, even if 
 
 office or dignity, is bound to appear and directed by an order; and in his case, 
 
 testify in courts of law when required to the Court would hardly entertain proceed- 
 
 do so by proper process, unless he has a ings to compel him by adjudging him in 
 
 lawful excuse. The official engagements contempt. ... If the Governor, with- 
 
 and duties of the higher officers of the out sufficient or lawful reasons, refuses to 
 
 government may be, and in many cases appear and testify, he is, like all other 
 
 are, a sufficient excuse. The dignity of citizens, liable to respond in damages to 
 
 the office, or the mere fact of official po- any party injured by his refusal." 
 sition, is not of itself an excuse, and Compare the authorities cited in W., 
 
 whether the official engagements are suffi- 85 2369, 2370. 
 cient must be determined from the cir- 
 
544 PRIVILEGED COMMUNICATIONS. No. 518. 
 
 duties no action can lie. A judge cannot be sued because of delaying 
 his judgments, or because he fails to bring to his duties all the care, 
 prudence and diligence that he ought to bring, or because he decides on 
 partial views and without sufficient information. His selection for his 
 office implies that he is to be governed in it by his own judgment; and 
 it is always to be assumed that that judgment has been honestly exer- 
 cised and applied. . . . For all duties the time, manner and extent of 
 the performance of which are left to the wisdom, integrity and judg- 
 ment of the officer himself, it is conceded that, as a general rule, the 
 only liability of the officer is to the criminal law, in case he shall wrong- 
 fully and maliciously neglect to perform his duties, or shall perform 
 them improperly. Duties of this nature are usually spoken of as duties 
 in the exercise of discretionary and judicial powers, and it is deemed 
 a conclusive answer to any private action for an injury resulting from 
 neglect or unfaithful performance to say that where a matter is trusted 
 to the discretion or judgment of an officer, the very nature of the au- 
 thority is inconsistent with responsibility in damages for the manner 
 of its exercise, since to hold the officer to such responsibility would be 
 to confer a discretion and then make its exercise a wrong." 
 
 BEATSON v. SKENE (i860). 
 5 H. & N. 838, 853. 
 
 Libel. The plaintiff, Skene, was a general of cavalry. At the close 
 of the Crimean war he was superseded in command, and resigned. An 
 investigation into the state of the corps was made by General 
 Shirley, whose secretary and commissioner the defendant Beat- 
 son was. The defendant reported to his superior that the plaintiff had 
 stirred up mutiny in the corps, and afterwards so testified as a wit- 
 ness before a military court of inquiry held to investigate General 
 Shirley's alleged libel on the plaintiff. For this testimony the plain- 
 tiff's suit for libel was brought; and he sought production, in his proof, 
 of the military court's minutes of the defendant's testimony, and of the 
 plaintiff's own letters to the Secretary of War. 
 
 Bovill and Garth showed cause: "First, the learned Judge was cor- 
 rect in refusing to compel the production of the letters and minutes 
 of the Court of Inquiry, the Secretary of State for War having objected 
 to produce them, on the ground that their production would be preju- 
 dicial to the public service. It is clear that evidence may be excluded, 
 where the disclosure would be prejudicial to public interests.." . . . 
 
 Edwin James and Gray, in support of the rule: "First, the learned 
 Judge ought to have compelled the production of the letters and min- 
 utes of the Court of Inquiry, which the Secretary for War was sub- 
 poenaed to produce. The letters were not confidential communications, 
 but were written by the plaintiff in explanation of his conduct, and for 
 the purpose of showing the motives by which he was actuated. There 
 
No. 519. STATE SECRETS, 545 
 
 is no authority that under such circumstances the Secretary for War 
 was entitled to withhold them. The case is totally different from that 
 of a confidential report made by a military officer to the Secretary for 
 War, which it is conceded would be privileged." 
 
 Pollock, C. B. : "We are of opinion that it cannot be laid down 
 that all public documents, including treaties with foreign powers and 
 all the correspondence that may precede or accompany them, and all 
 communications to the heads of departments, are to be produced and 
 made public whenever a suitor in a court of justice thinks that his 
 case requires such production. It is manifest, we think, that there 
 must be a limit to the duty or the power of compelling the production 
 of papers which are connected with acts of State. As an instance, 
 we would put the case of a British minister at a foreign Court writing 
 in that capacity a letter to the Secretary of State for Foreign Affairs 
 in this country, containing matter injurious to the reputation of a for- 
 eigner or a British subject; can it be contended that the person referred 
 to would have a right to compel the production of the letter in order 
 to take the opinion of a jury whether the injurious matter was writ- 
 ten maliciously or not? We are of opinion that, if the production 
 of a State paper would be injurious to the public service, the general 
 public interest must be considered paramount to the individual interest 
 of a suitor in a court of justice; and the question then arises, how is 
 this to be determined? 
 
 "It is manifest it must be determined either by the presiding Judge 
 or by the responsible servant of the Crown in whose custody the paper 
 is. The Judge would be unable to determine it without ascertaining 
 what the document was, and why the publication of it would be in- 
 jurious to the public service — an inquiry which cannot take place in 
 private, and which taking place in public may do all the mischief 
 which it is proposed to guard against. It appears to us therefore, that 
 the question, whether the production of the documents would be in- 
 jurious to the public service, must be determined, not by the Judge 
 but by the head of the department having the custody of the paper; 
 and if he is in attendance and states that in his opinion the produc- 
 tion of the document would be injurious to the public service, we think 
 the Judge ought not to compel the production of it. The administration 
 of justice is only a part of the general conduct of the affairs of any 
 State or Nation, and we think is (with respect to the production or 
 non-production of a State paper in a Court of justice) subordinate to 
 the general welfare of the community."^ 
 
 6 — Field, J., in Hennessy v. Wright, L. in the discharge of their duty to the 
 
 R. 21 Q. B. D. 509, 512 (1888): "There Crown, were liable to be made public in 
 
 are two aspects of this question. First, a court of justice at the instance of any 
 
 the publication of a State document may suitor who thought proper to say 'fiat jus- 
 
 involve danger to the nation. If the conii- titia mat caelum,' an order for discovery 
 
 dential communications made by servants might involve the country in a war. Sec- 
 
 of the Crown to each other, by superiors ondly, the publication of a State paper may 
 
 to inferiors or by inferiors to superiors, be injurious to servants of the Crown as 
 
546 PRIVILEGED COMMUNICATIONS. No. 520. 
 
 6. Physician and Patient. 
 
 DUCHESS OF KINGSTON'S TRIAL (1776). 
 20 How. St. Tr. 573. 
 
 Bigamy. Mr. Hawkins, a physician, who had attended the accused 
 and her alleged husband, was asked : "Do you know from the parties 
 of any marriage between them ?" Ans. : "I do not know how 
 "^^ far anything that has come before me in a confidential trust in 
 my profession should be disclosed, consistent with my professional 
 honor." 
 
 Mansfield, L. C. J.: "If all your lordships will acquiesce, Mr. 
 Hawkins will understand that it is your judgment and opinion that a 
 surgeon has no privilege, where it is a material question in a civil or 
 criminal cause to know whether parties were married or whether a 
 child was born, to say that his introduction to the parties was in the 
 course of his profession and in that way he came to the knowledge of 
 it. ... If a surgeon was voluntarily to reveal these secrets, to be sure, 
 he would be guilty of a breach of honor and of great indiscretion; but 
 to give that information in a court of justice which by the law of the 
 land he is bound to do, will never be imputed to him as any indiscre- 
 tion whatever."^ 
 
 Commissioners on the Revision of the Statutes of New York, 
 ///, 7J7 (1836) : "The ground on which communications to counsel 
 are privileged, is the supposed necessity of a full knowledge of the 
 facts, to advise correctly, and to prepare for the proper defense 
 or prosecution of a suit. But surely the necessity of consulting a 
 medical adviser, when life itself may be in jeopardy, is still stronger. 
 And unless such consultations are privileged, men will be incidentally 
 punished by being obliged to suffer the consequences of injuries with- 
 out relief from the medical art, and without conviction of any offence. 
 Besides, in such cases, during the struggle between legal duty on the 
 one hand, and professional honor on the other, the latter, aided by a 
 strong sense of the injustice and inhumanity of the rule, will, in most 
 cases, furnish a temptation to the perversion or concealment of truth, 
 too strong for human resistance." 
 
 individuals; there would be an end of all should be produced openly in a court of 
 
 freedom in their official communications if justice." 
 
 they knew that any suitor, that as in this Compare the authorities cited in W., 
 
 case any one of their own body whom § 2375. 
 
 circumstances had made a suitor, could 7 — Compare the authorities cited in W., 
 
 legally insist that any official communica- § 2380. 
 
 tion, of no matter how secret a character, 
 
No. 523. PHYSICIAN AND PATIENT. 547 
 
 Statutes. California: C. C. P. 1872, §1881, par. 4: "A licensed 
 physician or surgeon cannot, without the consent of his patient, be 
 examined in a civil action as to any information acquired in 
 ""^ attending the patient which was necessary to enable him to 
 prescribe or act for the patient"; amended by the Commission of 1901 
 by adding: "but this subdivision does not apply in an action between 
 a physician or surgeon and his patient in which the treatment of the 
 patient by the physician or surgeon is in issue; and provided that in an 
 action brought under sections 376 and 377 [for death by wrongful act] 
 a physician or surgeon is competent to testify as to the cause of the 
 death of the deceased." 
 
 New York: C. C. P. 1877, §834: "A person duly authorized to 
 practice physic or surgery shall not be allowed to disclose any infor- 
 mation which he acquired in attending a patient in a professional 
 capacity and which was necessary to enable him to act in that ca- 
 pacity." lb., § 836, including amendments added by St. 1897-1899; the 
 preceding section not to apply if "expressly waived upon the trial or 
 examination" by the patient; moreover, except for "confidential com- 
 munications and such facts as would tend to disgrace the memory of 
 the patient," express waiver by the personal representative of the de- 
 ceased suffices, or, in testamentary controversies, by the executor, sur- 
 viving husband, widow, heir, or next of kin. 
 
 Oregon: Annot. C. 1892, §712, par. 4 (like Cal. C. C. P. §1881, 
 unamended). lb., §713: "If a party to the suit, action, or proceeding 
 offer himself as a witness, that is to be deemed a consent to the exam- 
 ination also of a wife, husband, attorney, clergyman, physician, or 
 surgeon, on the same subject, within the meaning of subdivisions i, 2, 
 3, and 4 of the last section."' 
 
 GARTSIDE V. INSURANCE CO. (1882). 
 7(J Mo. 446. 
 
 Norton, J.: "This suit was instituted in the circuit court of the 
 city of St. Louis, on a policy of insurance to recover a death loss. On 
 the trial judgment was rendered for defendant, which, on plain- 
 tiff's appeal to the St. Louis court of appeals, was reversed, and 
 from the judgment of reversal defendant prosecutes an appeal to this 
 court. 
 
 "The only question presented on said appeal for our determina- 
 tion is, whether a physician, who is called to visit a patient, when intro- 
 duced as a witness, can be required or allowed to disclose any informa- 
 tion acquired by him from such patient either orally, by signs or 
 by observation of the patient after he has submitted himself 
 for examination, which information was necessary to enable him to 
 prescribe for such patient. An affirmative answer reverses, and a nega- 
 
 8 — Compare the authorities cited in W., § 2380. 
 
548 PRIVILEGED COMMUNICATIONS. No. 523. 
 
 tive answer affirms the judgment, and the solution of the question is 
 dependent upon a construction of the fifth subdivision of section 4017, 
 Revised Statutes, v^rhich declares that the following persons shall be in- 
 competent to testify, viz: ... 'A physician or surgeon, concerning 
 any information which he may have acquired from any patient while 
 attending him in a professional character, and which information was 
 necessary to enable him to prescribe for such patient as a physician, 
 or do any act for him as a surgeon.' 
 
 "It is contended upon the one hand that the above statute was only 
 designed and intended to forbid the disclosure of such information as 
 a physician while attending a patient acquires orally from the patient. 
 It is contended, on the other hand, that the statute forbids, not only 
 information acquired through the ear by oral communication, but also 
 all information acquired through the eye by observation or examination 
 of the patient after he has submitted himself to the care of the 
 physician for examination and treatment. In settling this con- 
 tention, and in determining the proper construction to be placed on 
 said section 4017, we feel authorized to look at the adjudications in 
 other states having similar statutes. . . . 
 
 "While it is true that the phraseology of our statute is different 
 in the above respect from the New York statute, it is also true that 
 the object intended to be accomplished by both is the same, and the 
 meaning of both is the same when construed with reference to the 
 object intended to be brought about, viz: casting 'the veil of privilege' 
 or secrecy over information acquired by a physician while professionally 
 engaged in the sick chamber, and necessary to enable him to prescribe. 
 Information acquired by a physician from inspection, examination or 
 observation of the person of the patient, after he has submitted him- 
 self to' such examination, may as appropriately be said to be acquired 
 from the patient as if the same information had been orally com- 
 municated by the patient. The construction contended for by defend- 
 ant's counsel, that by the statute a physician is forbidden to disclose 
 only such information as may have been communicated to him orally 
 by his patient, would, in our opinion, nullify the law. To hold that, 
 while under the statute a physician would be forbidden from disclos- 
 ing a statement made to him by his patient that he was suffering from 
 syphilis ; and to allow him to state as the result of his observation and 
 examination of the patient that he was diseased with syphilis would 
 be to make the statute inconsistent with itself. It is doubtless true 
 that a physician learns more of the condition of a patient from his own 
 diagnosis of the case than from what is communicated by the words 
 of the patient; and to say that while the mouth of the physician is 
 sealed as to the information acquired orally from his patient, it is 
 opened wide as to information acquired from a source upon which 
 he must rely, viz: his own diagnosis of the case, would be to restrict 
 the operation of the statute to narrower limits than was ever intended 
 by the legislature and virtually to overthrow it. 
 
No. 524. PRIEST AND PENITENT. 549 
 
 "It follows from what has been said that the circuit court erred 
 in permitting Drs. Gregory and Bauduy, two physicians, to give in 
 evidence the information acquired by them while attending Gartside, 
 their patient, professionally, although such information was acquired 
 not from what the patient said but from observation and examina- 
 tion."" 
 
 7. Priest and Penitent. 
 
 REGINA v. HAY (i860). 
 2 F.& P. 4. 
 
 William Hay, aged twenty-two, pitman, was charged with robbing 
 Daniel Kennedy of a silver watch, at Jarrow, on the 25th December. 
 . . . Inspector Rogers, by whom the prisoner was apprehended, 
 ""* stated that from information he received he went to the house 
 of the Rev. John Kelly, a Roman Catholic priest, from whom he re- 
 ceived a watch, which the prosecutor identified as his property, and 
 who was now called. 
 
 The crier of the Court was about to administer the oath to him, 
 when he objected to the form of the oath. 
 
 Hill, J.: "What is the objection?" 
 
 Rev. Mr. Kelly: "Not that I shall tell the truth, and nothing but 
 the truth; but, as a minister of the Catholic Church, I object to the 
 part that states that I shall tell the whole truth." 
 
 Hill, J.: "The meaning of the oath is this: it is the whole truth 
 touching the trial which you are asked; which you, legitimately accord- 
 ing to law, can be asked. If anything is asked of you in the witness- 
 box which the law says ought not to be asked — for instance, if you are 
 asked a question the answer of which might criminate yourself — you 
 would be entitled to say, 'I object to answer that question, because the 
 answer might criminate myself,' and the law would sustain the objec- 
 tion. You can therefore have no objection as a loyal subject, and 
 in duty to the laws of the country, to answer the whole truth touching 
 the case which may be lawfully asked. Therefore you must be sworn." 
 
 The witness took the oath in the usual form, and gave the follow- 
 ing evidence : — "I have been twelve years Catholic priest at the Fell- 
 ing. On Christmas-day I received the watch produced." 
 
 Headlam then asked, "From whom did you receive that watch?" 
 
 Witness: "I received it in connection with the confessional." 
 
 Hill, J.: "You are not asked at present to disclose anything stated 
 to you in the confessional; you are asked a simple fact — from whom 
 did you receive that watch which you gave to the policeman." 
 
 Witness: "The reply to that question would implicate the person 
 who gave me the watch, therefore I cannot answer it. If I answered 
 
 9 — Compare the authorities cited in W., § 2384. 
 
550 PRIVILEGED COMMUNICATIONS. No. 524. 
 
 it, my suspension for life would be a necessary consequence. I should 
 be violating the laws of the Church, as well as the natural laws." 
 
 Hill, J. : "I have already told you plainly I cannot enter into this 
 question. All I can say is, you are bound to answer, 'From whom did 
 you receive that watch?' On the ground I have stated to you, you are 
 not asked to disclose anything that a penitent may have said to you 
 in the confessional. That you are not asked to disclose; but you are 
 asked to disclose from whom you received stolen property on the 25th 
 of December last. Do you answer it, or do you not?" 
 
 Witness: "I really cannot, my lor3." 
 
 Hill, J.: "Then I adjudge you to be guilty of contempt of Court, 
 and order you to be committed to gaol. [To the officer of the Court] 
 — ^Take him into custody." 
 
 The witness was accordingly removed in custody. 
 
 Statutes. New York: C. C. P. 1877, §833: "A clergyman or 
 other minister of any religion shall not be allowed to disclose a con- 
 fession made to him in his professional character in the course 
 ®^^ of discipline enjoined by the rules or practice of the religious 
 body to which he belongs."^" 
 
 10 — Compare the authorities cited in W., §§ 2394, 2395. 
 
No. 526. BOOK I, 551 
 
 PART IV. 
 
 PAROL EVIDENCE RULE. 
 
 (CONSTITUTION OF LEGAL ACTS.) 
 
 General Nature and Scope of the Rule.^^ "I. At the outset certain 
 discriminations must be kept in mind: (i) First and foremost, the 
 rule is m no sense a rule of evidence, but a rule of substantive 
 law. It does not exclude certain data because they are for one 
 or another reason untrustworthy or undesirable means of evi- 
 dencing some fact to be^ proved. It does not concern a proba- 
 tive mental process, — the process of believing one fact on the faith 
 of another. What the rule does is to declare that certain kinds 
 of fact are legally ineffective in the substantive law; and this of course 
 (like any other ruling of substantive law) results in forbidding the 
 fact to be proved at all. But this prohibition of proving it 
 is merely the dramatic aspect of the process of applying the rule of 
 substantive law. When a thing is not to be proved at all, the rule of 
 prohibition does not become a rule of evidence merely because it comes 
 into play when the counsel offers to 'prove' it or give 'evidence' of it; 
 otherwise, any rule of law whatever might be reduced to a rule of 
 evidence; a ruling (for example) that on a plea of self-defence, in an 
 action of battery, no evidence of. the plaintiff's insulting words is to 
 be received, would become the legitimate progeny of the law of evi- 
 dence. . . . Let us dismiss, then, once for all, any notion that the 
 parol-evidence rule, in any of its aspects, is concerned with any pre- 
 cautions or limitations based on probative value, or indeed with any 
 regulation of evidence in the legitimate sense of that word. This will 
 be the first step to a clear understanding of the working of the rule. 
 
 "(2) Next, the matter excluded by the rule is not inherently or 
 even most commonly anything that can be properly termed 'parol.' 
 That word (in spite of its numerous other derived applications) signi- 
 fies and implies essentially the idea 'oral,' i. e. matter of speech, as con- 
 trasted with matter of writing. Now, so far as the phrase 'parol-evidence 
 rule' conveys the impression that what is excluded is excluded because it 
 is oral — because somebody spoke or acted other than in writing, or is 
 now offering to testify orally — , that impression is radically incorrect. 
 When the prohibition of the rule is applicable, what is excluded may 
 equally be written as oral, — may be letters and telegrams as well as 
 conversations; and where the prohibition is applicable on the facts 
 to certain written material, nevertheless for the very same transaction 
 certain oral material may not be prohibited. So that the term 'parol' 
 not only affords no necessary clue to the material excluded, but is even 
 
 11 — Quoted from W., §§ 2400, 2401. 
 
552 PAROL EVIDENCE RULE. No. 526. 
 
 positively misleading. It must be understood to be employed in a 
 purely unnatural and conventional sense. 
 
 "(3) There is no one and undivided parol-evidence rule. There 
 are at least four distinct principles or bodies of doctrine. They con- 
 cern a common subject — legal acts — , but their content and details are 
 separate and distinct. The case lies very much as if we possessed one 
 terrn 'action' for all the various forms of remedial procedure. It is 
 true enough that they all may be looked upon as mere species of the 
 general notion of a remedy, but it would be by all conceived impossible 
 to discuss the details of mandamus, certiorari, injunction, capias, re- 
 plevin, bill in chancery, action on the case, scire facias, subpoena, and 
 the rest with no better word-materials than the one word 'action.' -Yet 
 this is not far from the impossible task which has been attempted with 
 the term 'parol-evidence rule.' There is no one generalization for that 
 rule, — at least none which has any practical consequence. The four 
 general groups of doctrine which go to make up the whole have a sep- 
 arate set of rules; the chief problem in their application is to ascer- 
 tain which kind of rule in involved in the case in hand, and to keep 
 one from being mistaken for another. 
 
 "(4) The parol-evidence rule is not the only rule which concerns 
 the use of written things. There are several other rules, with which 
 it has nothing to do, that also have something to say about writings, — 
 the chief of which are the rule about Producing Documentary Originals 
 and the rule about Authenticating Documents. These are rules of evi- 
 dence in the genuine sense, and the term 'parol' is often naturally em- 
 ployed (especially with the former) in discussing them. But they are 
 of no kith or kin with the Parol- Evidence rule proper, as here involved, 
 i. e. the rule of substantive law. Their difference from the present 
 rule is plain enough ; but the false nomenclature of the latter has some- 
 times caused a relation between them to be suspected. 
 
 "(5) Finally, it needs to be insisted, in opposition to the popular 
 and natural view which tends to thrust itself forward at trials, that 
 a writing has no efficacy per se, but only in consequence of and de- 
 pendence upon other circumstances external to itself. The exhibition 
 of a writing is often made as though it possessed some intrinsic and 
 indefinite power of dominating the situation and quelling further dis- 
 pute. But it needs rather to be remembered that a writing is, of itself 
 alone considered, nothing — simply nothing. It must take life and effi- 
 cacy from other facts, to which it owes its birth; and these facts, as 
 its creator, have as great a right to be known and considered as their 
 creature has. Granting that there is a writing before us : Has it been 
 brought home to anybody as his act? Was it meant to supersede other 
 materials? Was it essential to the transaction? What external ob- 
 jects does it apply to? These are questions which cannot be answered 
 without looking away from the writing to other data; and until they 
 are answered the efficacy of the writing is merely hypothetical. There 
 is no magic in the writing itself. It hangs in mid-air, incapable of self- 
 
No. 526. INTRODUCTION. 553 
 
 support, until some foundation of other facts has been built for it. So 
 far as the parol-evidence rule is concerned with writings at all, it con- 
 cerns these questions of the relation between the writing and other 
 data, and it points out what other data are essential and available for 
 the proper use of the writing. It conduces to a sound understanding 
 of the rule if we dispel wholly that natural notion which falsely at- 
 tributes to a writing some mystic independence and automatism. 
 
 "In short, then, (i) the parol-evidence rule is not a rule of evi- 
 dence; (2) nor is it a rule for things parol; (3) nor is it a single rule; 
 (4) nor is it all of the rules that concern either parol or writing; (5) nor 
 does it involve the assumption that a writing can possess, independently 
 of the surrounding circumstances, any inherent status or efficacy. 
 
 "II. What, then, is the Parol-Evidence rule? It concerns the 
 constitution of legal acts. This requires a brief notice of the nature 
 of legal acts. 
 
 "Only a small part of conduct is legal conduct, i. e. conduct having 
 legal effectiveness. The nature and effect of such conduct as will 
 be given legal effect is therefore a question of general consequences in 
 all departments of the law. Leaving aside the field of crimes (which 
 deals with the relation between State and individual) and of torts (which 
 deals with irrecusable or involuntary civil relations) we are here con- 
 cerned with voluntary relations, i. e. those relations which may be cre- 
 ated, transferred, or extinguished by will of the parties. The conduct 
 which is allowed to have such effect is a legal act.^ 
 
 "For the purpose of specific varieties of legal acts — sale, contract, 
 release, and so on — , there are specific requirements, varying accord- 
 ing to the subject. But there are also certain fundamental elements, 
 common to all, and capable of being generalized. These elements pre- 
 sent problems which run through all the varieties of legal acts, and 
 must therefore be analyzed and discussed in union. Their principles, 
 when applied to specific kinds of acts, usually give substantially simi- 
 lar results; and, when they do not, it is merely because special cir- 
 cumstances call for local variances. What has to be done, therefore, 
 is to compare under one head the principles common to all legal acts, 
 and to take account of the specific variations for specific kinds of acts. 
 This is what the 'parol evidence' rule does in our law. 
 
 "These principles fall into four groups, marking the four possible 
 elements of every legal act: (A), The Enaction, or Creation, of the 
 act; (B), its Integration, or embodiment in a single memorial, when 
 desired; (C), its Solemnization, or fulfilment of the prescribed forms, 
 if any; and (D), the Interpretation, or application of the act to the 
 
 I — "There is a very important class of schafte. Frenchmen call them actes juri- 
 
 acts in which the legal result follows be- digues. English lawyers have not yet 
 
 cause that result was itself contemplated agreed upon any name for them. The 
 
 and desired as one of the consequences terms 'juristic acts' and 'acts in the law' 
 
 of the act. From the fact that legal re- have been suggested" (Markby, Elements 
 
 suits are in contemplation in this class of of Law, 3d ed., § 235). 
 acts, the Germans call them Rechtsge- 
 
554 PAROL EVIDENCE RULE. NO. 526. 
 
 external objects affected by it. Oi these four, the first and the fourth 
 are necessarily involved in every legal act; the second and the third 
 may or not become practically important, but are always possible ele- 
 ments. 
 
 "A. The Enaction, or Creation, of an act is concerned with the 
 question whether any legal act at all, or a legal act of the alleged tenor, 
 has been consummated ; or, if consummated, whether the circumstances 
 attending its creation authorize its avoidance or annulment. Under 
 the first head arise the questions whether a writing is anything more 
 than a preparatory draft, whetWer it has been completed by delivery, 
 whether its tenor is to be judged by its actual words or the intended 
 words, and the like. Under the second head arise the questions whether 
 it can be avoided because of mistake, fraud, or duress, affecting the 
 motive leading to its enaction. 
 
 "B. The Integration of the act consists in embodying it in a 
 single utterance or memorial, — commonly, of course, a written one. 
 This process of integration may be required by law, or it may be adopted 
 voluntarily by the actor or actors; and, in the latter case, either wholly 
 or partially. Thus the question in its usual form is whether a particu- 
 lar document is the one deemed by law to be the sole memorial of the 
 act, or how far a particular document was intended by the parties to 
 cover certain subjects of transaction between them and therefore to 
 deprive of legal effect all their other utterances. 
 
 "C. The Solemnization of the act concerns the forms which are 
 required by law to attend it in order to give it legal effect. This always 
 becomes a question of some particular subject in the law, because there 
 is no universal formality required in common for all acts. Thus the 
 formalities of attestation, seal, registration, and the like are essen- 
 tial for some but not for other acts. Writing is naturally the most 
 important and most common instance of a required formality. The 
 resort to writing may sometimes be an instance of Integration and 
 sometimes of Solemnization, but either may exist without the other. 
 
 "D. The Interpretation of an act is the application of it to external 
 objects, in the process of defining and enforcing the right or obliga- 
 tion affected by its terms. The words of a legal act are merely the 
 symbols by which the actor indicates the external objects which the 
 act is expected to effect — a lot of land or a barrel of sugar or John 
 Doe the legatee. The connection between these words and their pos- 
 sible objects must be judicially established before the terms of the act 
 can be given the effects expected by the parties. In this process of In- 
 terpretation, the main questions concern the standard of meaning to be 
 adopted and the data which may be used in determining that meaning. 
 
 "For these four elements in the act, the principles are independent 
 of each other, — so independent, indeed, that they sometimes appear to be 
 contradictory; and the chief inherent difficulty in their application 
 arises from the necessity of distinguishing which element and which 
 principle is really involved." 
 
No. 527. A. CREATION OF LEGAL ACTS. 555 
 
 A. CREATION OF LEGAL ACTS. 
 /. Subject; Delivery. 
 
 EARLE V. RICE (1872). 
 Ill Mass. j^. 
 
 Bill in equity against William W. Rice, Thomas L. Nelson, Thomas 
 Earle, Philip Henry Earle, Ellen Chase Earle, and Thomas H. Earle, 
 the last four being minor children of the plaintiff and the defend- 
 ant Thomas Earle, praying that a paper signed by the plaintiff 
 and Thomas Earle might be delivered up to be cancelled, and that Rice 
 and Nelson might deliver to the plaintiff the proceeds of the sale of 
 certain real estate of hers in their hands. ... At the hearing, before 
 Gray, J., it appeared that in February, 1869, the plaintiff then being 
 married to Thomas Earle, and having several children by him, was 
 seised in fee in her own right of land in Worcester, which had been 
 devised to her by her father; and that she and her husband, being 
 desirous of selling this land, signed a memorandum, dated February 
 23, 1869, which, after reciting the ownership of the land and the desire 
 of the parties to sell it, continued thus: "It is understood and agreed 
 that said real estate shall be advertised and sold, some time during the 
 month of March next, — said parties joining the conveyance thereof; 
 and the proceeds thereof, after paying the expenses of said sale, and 
 discharging any incumbrances thereon, shall be placed in the hands 
 of Edward Earle and William W. Rice, in trust. . . . And it is under- 
 stood that a deed of trust shall be prepared in proper form to carry out 
 the understanding and intention above summarily expressed, with such 
 proper details and provisions as shall be necessary to make the same 
 effectual." 
 
 William W. Rice testified that Thomas Earle asked him to draw 
 this memorandum; that he replied that he did not believe such an 
 agreement would be legally binding between him and his wife ; that 
 Thomas Earle then said "I do not suppose the writing will be binding 
 between us, but I want it made, and I will sign it, and she can sign 
 it if she will; we shall then be morally bound by it, the friends of 
 t)oth can see what I am willing to do, and if either party refuse to 
 be bound, it will be known who is to blame"; that the witness drew 
 the paper and Thomas Earle signed it ; and that the witness told the 
 plaintiff what Thomas Earle said. The plaintiff testified that Rice 
 brought her the paper, and told her very plainly that it would not be 
 legally binding, and that her husband knew it was not legally binding, 
 hut considered it as morally binding, and as showing that he was will- 
 ing to do what was right in the matter; that she showed it to her 
 counsel, and told him that her husband was aware that it was not legally 
 binding; that her counsel told her that she was not legally bound 
 by it, but would of course feel morally bound to carry out its provisions, 
 and that it was right for her to sign it; and that she signed it. The 
 
556 PAROL EVIDENCE RULE. No. 527. 
 
 administrator and the gfuardian ad litem objected to the admission of 
 this testimony. . . . 
 
 Gray, J.: " .... As to the memorandum of February 23, 1869, 
 the evidence is full and conclusive that it was signed by the husband 
 vifith the understanding that it would not be legally binding, or anything 
 more than a moral or honorary obligation, upon either party; and by 
 the wife, after being informed that such was the husband's under- 
 standing of its effect, and after being advised by her counsel that it 
 would not legally bind her. In short both parties signed it with the 
 understanding that they were not bound thereby, except so far as they 
 might feel themselves morally obliged to carry out the intention therein 
 expressed. Evidence of this character, though not competent to con- 
 trol the interpretation of the contract, is clearly admissible to show that 
 the contract should be set aside, or treated as of no effect, in equity. 
 ... It follows that the wife has done nothing to affect her rights in 
 the land devised to her by her father, or to confer any rights therein 
 upon her husband and children; and that the proceeds of the sale of 
 the land, in the hands of the trustees, belong to her as fully as the land 
 did before the sale."^ 
 
 THOROUGHGOOD'S CASE (1601). 
 p Co. Rep. 13/'. 
 
 "If A makes a writing to B and seals it, and delivers it to B as an 
 escrow, to take effect as his deed when certain conditions are per- 
 formed, it has been adjudged to be immediately his deed, for 
 ®^* the law respects the delivery to the party himself, and rejects 
 the words which will make the express delivery to the party upon the 
 matter no delivery. . . . And therewith agrees the report of 19 H. 8. 8. 
 a. and takes the difference when it is so delivered to the party himself, 
 and when to a stranger, as it was there agreed. A writing may take 
 effect by actual delivery to the party himself without any words: And 
 as a writing may take effect by actual delivery without words, so it may 
 take effect by words without actual delivery: As if a writing is sealed, 
 and it lies in a window, or upon a table, and the obligor saith to the 
 obligee, see there's the writing, take it as my deed and he takes it 
 accordingly, it is a good delivery in law."^ 
 
 XENOS v. WICKHAM (1866). 
 L. R. 2 H. L. 2p6. 
 
 The Appellants are shipowners, carrying on business under the 
 
 name of the Greek and Oriental Steam Navigation Company, and as 
 
 such were the owners of the ship Leonidas. The Respondent 
 
 °"" is the chairman and representative of the Victoria Fire and 
 
 Marine Insurance Company. The declaration alleged, in the usual 
 
 I — Compare the authorities cited in W., 2 — Compare the authorities cited in W., 
 
 5 2406. § 2408. 
 
No. 529. A. CREATION OF LEGAL ACTS. 557 
 
 form, that the Plaintiffs caused their vessel to be insured by this 
 company for a space of twelve months, from the 25th of April, 1861, 
 to the 24th of April, 1862, on a policy valued at £1000, upon a ship 
 valued at £13,000, and the loss was alleged to have occurred by perils 
 of the sea. ... It appeared that on the 2Sth of April, 1861, the Plain- 
 tiffs employed Mr. Lascaridi, an insurance broker, to effect for them 
 a policy on the ship Leonidas for £2000, at £8 8.J. per cent., from the 
 25th of April to the 2Sth of October. ... In accordance with the usual 
 practice, Lascaridi prepared for the Respondent's company a slip em- 
 bodying the terms of the proposed insurance, and got it initialed by 
 Mr. E. J. Sprague, a clerk of the company, for the sum of £2000. This 
 was left at the office of the company in order that the policy might be 
 made out. Before the policy was made out, the Plaintiffs sent to Las- 
 caridi a letter, dated 29th of April, 1861, desiring him to "cancel Leoni- 
 das insurance, and insure the same for all the year and for all seas 
 at £10 io.f. per cent." On the 30th of April Lascaridi called at the 
 Respondent's office, and stated that he did not wish the policy already 
 mentioned to proceed, but desired to effect another. The slip for the 
 insurance for £2000 for six months was then destroyed, and another 
 slip was prepared by him, and initialed by the Respondent's clerk, 
 "E. J. S.," on the Leonidas for £1000 for twelve months, from the 25th 
 of April, 1861, on "hull, stores, and machinery, valued at £13,000." 
 On the 1st of May Lascaridi sent to the Plaintiffs an account debiting 
 them with the sum of £338, as payable by them in respect of insurances 
 on the Leonidas, and drew on them, as of that date, for that sum at 
 three months. They accepted the bill, and when they did so Lascaridi 
 told them that the policy would be ready in a day or two. This bill 
 was paid at maturity. In the course of a few days afterwards a policy 
 in the usual form of the company was filled up from the slip, and was 
 dated the ist of May, 1861. 
 
 The custom, as between insurance companies and insurance brokers, 
 is for the companies to give credit to the brokers for the premiums, 
 debiting them in account with the amount of such premiums, and when 
 insurances are effected (as this was) for cash, or on cash account, 
 all premiums for insurances effected during each month are payable 
 on the 8th of the succeeding month. Just before the expiration of this 
 credit a debit note is sent to the broker, with a statement of the amount 
 of the premiums due, less a discount and a brokerage at 15 per cent. 
 On the 8th of June a debit note was sent from the Respondent's office 
 to that of Lascaridi. On its being presented, Lascaridi's clerk said that 
 no premium was due, and, upon a second messenger being sent with 
 the policy, which was expressed to be duly "signed, sealed, and de- 
 livered," and the debit note, the clerk repeated the statement and said 
 that the policy ought not to have gone forward. In the course of the 
 day one of the clerks of Lascaridi called at the office of the company, 
 and said that the policy had been put forward in error, and requested 
 that it should be cancelled. A memorandum of cancellation was there- 
 
558 PAROL EVIDENCE RULE. No. 529. 
 
 upon indorsed on the policy in these terms: "Settled a return of the 
 whole premium on the within policy, and cancelled this insurance, no 
 risk attaching thereto." This memorandum was signed by two directors, 
 witnessed, and registered in the regular way. The debit against Las- 
 caridi for the premium was cancelled, but he was xharged with the 
 stamp, and the policy was handed to his clerk, with the memorandum 
 of cancellation thereon, that he . might, if he could, obtain from the 
 stamp office a return of the stamp duty. On the morning of the 2nd 
 of September, 1861, Lascaridi's clerk called at the office of the company 
 with the policy, said that the cancellation had been made by mistake, 
 and wished the policy to be reinstated. He was informed that if the 
 ship was safe, and not in the Baltic, there would be no objection, and 
 he was requested to call again for an answer. At twenty minutes past 
 eight o'clock on the morning of that day, intelligence, by telegram, had 
 been received at Lloyd's, stating that the Leonidas was stranded on the 
 Nervo, but this intelligence was not known to the Respondent till 
 three o'clock in the afternoon of that day. The reinstatement of the 
 policy was then refused. It was admitted that the Appellants had not, 
 in fact, authorized the cancellation of the policy, nor did they ever re- 
 ceive back from Lascaridi any part of the premium, or any credit for 
 the same. The Lord Chief Justice, on these facts, directed a verdict 
 for the Defendant, but reserved leave to the Plaintiffs to move to enter 
 a verdict for them if the Court should be of opinion that the policy was 
 binding on the company, and had been cancelled without authority. 
 
 Sir George Honyman, Q. C, and Mr. Watkin Williams, for the Ap- 
 pellants: "The judgment in the Court below was, that there never 
 was a complete and binding contract between these parties. That propo- 
 sition cannot be sustained. The policy was treated, except by Lord 
 Chief Baron Pollock, as a common law deed, and it was supposed to 
 require actual delivery to make it effectual. Formal delivery to the 
 Appellants, or even to a particular person on their behalf, is not essen- 
 tial for its validity." 
 
 Mr. Bovill, Q.C., and Mr. Archibald, for the defendant: "There was 
 no policy here under the hands and seals of the company at the time 
 of the loss. ... A memorandum of cancellation was made on the pol- 
 icy, and though the policy was left with the broker, it was left not as 
 a delivery of it, as a policy, to him, as the broker for the assured, but 
 merely to enable him to get a return of the stamp duty. As to the 
 delivery of a deed, it is said in the Touchstone : 'The delivery of a deed 
 as an escrow is said to be where one doth make and seal a deed and 
 deliver it unto a stranger until certain conditions be performed, and 
 then to be delivered to him to whom the deed is made to take effect as 
 his deed.' Here it was only proposed to be delivered, and on that pro- 
 posal it was repudiated. In truth, it never was delivered, and has never 
 been in the possession of the Appellants as a deed accepted by them." 
 
 The following question was put to the Judges: "Whether, on the 
 facts stated in the special case, the Victoria Fire and Marine Insurance 
 
No. 529. • A. CREATION OF LEGAL ACTS. 559 
 
 Company was, when the ship Leonfdas was lost, liable as insurer to 
 the Plaintiffs on the policy, or alleged policy, in the pleadings men- 
 tioned? It is to be assumed that the ship Leonidas was totally lost on 
 the 1st of September, 1861." 
 
 Mr. Justice Blackburn: ... "I should wish to call your Lord- 
 ship's attention to what I think are the real points in controversy. 
 They are, I think, two; one of fact, the other of law. 
 
 "The question of fact is, I think, this: Was the policy really in fact 
 intended by both sides to be finally executed and binding from the time 
 when the directors of the Defendant's company affixed their seals to it, 
 and left it in their office; or was it, in fact, intended that the assured 
 or their brokers should exercise a subsequent discretion as to whether 
 they would accept it or not. If I thought that the parties did not in 
 fact intend it to be then finally binding, I do not think there would be 
 any magic in the law to make it binding contrary to their intention; 
 but I submit to your Lordships that the statements in the case as to 
 what is stated to be 'always' the practice, and the statements there as 
 to what was done in this particular case, shew that the intention of 
 both parties was, that the policy, when drawn up by the company in 
 conformity with the instructions in the advice slip sent in by the broker, 
 should be finally binding as soon as executed by the officers of the com- 
 pany. It was not intended by either side that anything more should 
 be done, but that the policy from that time should be binding, and 
 should lie in the company's office as the property of the assured till 
 sent for by them, and then be handed over to their messenger. . . . 
 
 "Then, assuming that the intention really was that the policy should 
 be binding as soon as executed, and should be kept by the company as 
 a bailee for the assured, the question of law arises, whether the policy 
 could in law ^e operative until the company parted with the physical 
 possession of the deed. I can, on this part of the case, do little more 
 than state to your Lordships my opinion, that no particular technical 
 form of words or acts is necessary to render an instrument the deed of 
 the party sealing it. The mere affixing the seal does not render it a 
 deed; but as soon as there are acts or words sufficient to shew that it 
 is intended by the party to be executed as his deed presently binding 
 on him, it is sufficient. The most apt and expressive mode of indi- 
 cating such an intention is to hand it over, saying: T deliver this as 
 iry deed ;' but any other words or acts that sufficiently shew that it was 
 intended to be finally executed will do as well. And it is clear on the 
 authorities, as well as the reason of the thing, that the deed is binding 
 on the obligor before it comes into the custody of the obligee, nay, be- 
 fore he even knows of it; though, of course, if he has not previously 
 assented to the making of the deed, the obligee may refuse it. ... I 
 cannot perceive how it can be said that the delivery of the policy to 
 the clerks of the Defendant, to keep till the assured sent for it, and 
 then to hand it to their messenger, was not a delivery to the Defend- 
 ant to the use of the assured. ... No authority, I think, has been cited 
 
560 PAROL EVIDENCE RULE. No. 529. 
 
 which supports the position that there is a technical necessity for some 
 one who is agent of the assured taking corporal possession of a policy 
 under seal before it can be binding, though intended by both parties to 
 be so. I think it would be very inconvenient, and would work great 
 injustice, if such were the law.'' 
 
 Judgment reversed ; and judgment given for the Plaintiff. 
 
 HUDSON V. REVETT (1829). 
 5 Bing. ^68. 
 
 This was an issue directed by the Court of Common Pleas, to try 
 whether certain deeds of lease and release, and an accompanying deed 
 of trust, were the deeds of the defendant, and if so, whether they 
 *"'' had been obtained by fraud, covin, or misrepresentation. 
 
 The lease and release bore date the 2Sth and 26th of November, 
 1825, respectively; the deed of trust the latter day; and the object of 
 the deeds was to effect a conveyance of Revett's property to Hudson, in 
 trust, to raise money by sale of it for the payment of Revett's debts, 
 with a trust, as to any residue, in favor of Revett. At the trial, before 
 HoLROYD, J., at Suffolk Summer assizes, Mr. Brown, the attorney 
 who prepared the deeds, and was also a party to the deed of trust, stated, 
 that on Monday the 28th November, 1825, the defendant being then a 
 prisoner in the King's Bench prison, he. Brown, on the part of the 
 plaintiff and other creditors, and acting, as he conceived, for all parties, 
 went, accompanied by Columbine, the attesting witness, to the defend- 
 ant in the prison, for the purpose of procuring the execution of the 
 deeds. That they corresponded exactly with drafts which had before 
 been assented to and signed by the defendant; that blanks were left for 
 the amounts of the debts of various creditors, which were then filled up, 
 with the exception of the blank for tlie debt of one Mills, a creditor; 
 that Mills, who was present, claimed 16,000/. odd; but that the defend- 
 and showed an account, reducing Mills's debt to 14,858/. 8s. 8d., and said 
 he had vouchers by which he could confirm the account. The account 
 was admitted, subject to the production of these vouchers; and it was 
 agreed that the blank for Mills's debt should be filled up when they were 
 produced. The defendant and Mills then executed the deed, leaving 
 the blank to be filled up as above mentioned. This statement was con- 
 firmed by the attesting witness, the only other person present. The 
 next day Brown and Mills attended the defendant again; but Colum- 
 bine was not present. The defendant produced the vouchers in ques- 
 tion; the balance was struck; Brown filled up the blanks with the sum 
 of 14,858/. 8s. 8d., and then went away, taking with him' the deeds for 
 the purpose of procuring their execution by other parties. The instru- 
 ment at that time had a deed-stamp, (not ad valorem,) and no new 
 stamp was added. The defendant left the prison shortly afterwards, 
 and the deeds were executed in his presence by his wife, (who also 
 
No. 530. A. CREATION OF LEGAL ACTS. 561 
 
 joined in a fine to enure to the uses of the trust-deed,) under his sanction, 
 when he was at Hberty. 
 
 No evidence was offered on the part of the defendant; but the fol- 
 lowing passage in Bull. N. P. p. 267, was relied on : "If there be blanks 
 left in an obligation in places material, and filled up afterwards by the 
 assent of parties, yet is the obligation void, for it is not the same con- 
 tract that was sealed and delivered — as if a bond were made to C. with a 
 blank left after for his Christian name and for his addition, which is aft- 
 erwards filled up." HoLROYD, J., told the jury it did not appear in the 
 passage cited that the alteration was made in the presence of the party, 
 but that, if in such a case there was that which amounted to a re- 
 delivery, and showed that the party meant the deed should be acted on 
 in its altered state, the alteration being made in his presence would 
 amount to a redelivery, and the deed would be his in its altered state. 
 The jury found that the deeds were the deeds of the defendant, and 
 that the execution of them had not been obtained by any fraud, covin or 
 misrepresentation. Wilde, Serjt., moved for a new trial on the ground 
 that the deed was void, having been altered in a material particular 
 after its execution, without any redelivery. A rule nisi having been 
 granted. 
 
 Storks and Russell, Serjts., showed cause: . . . "It was settled be- 
 tween the parties that the deed should be executed, subject to the blanks 
 being filled up, when the amount of debt should have been ascertained 
 and agreed upon. They were filled up, therefore, according to the in- 
 tention of the parties, and there was no alteration of the deed, but a 
 completion of it, according to the intentions of the parties. Under these 
 circumstances it may be contended, first, that the deed remained the 
 deed of the parties (without redelivery) notwithstanding the insertion. 
 ... A deed may be in the nature of an escrow only, from circumstances 
 and the nature of the transaction, without the formal and apt words 
 spoken of in Shepherd's Touchstone, 50 and 60; therefore, where a deed 
 is to be executed by several parties, and if any of them refuse, the 
 deed will be inoperative, a party who executes first must be taken to 
 execute and deliver it as his deed conditionally in case the others also 
 execute : so if the insertion of a sum be necessary to give the instrument 
 effect, a party who executes before such sum has been ascertained must 
 be understood as executing conditionally, and to give the deed effect 
 upon such sum being ascertained and inserted: until insertion, it is 
 therefore an escrow; upon insertion, and not till then, it becomes the 
 deed of the party who executed, by relation to the time of the execu- 
 tion. The concurrence of the agent of the obligors was of equal force 
 with the concurrence of the obligors themselves. And this will apply 
 to the objection of the insertion of the sum not having been made in 
 the presence of Revett (if that were so) because Brown was authorized 
 to make the insertion. . . . The deed in question therefore is good, and 
 the deed of Revett, without any re-execution or redelivery. But if not 
 good without a redelivery, it would be clearly so if such redelivery, or 
 
562 PAROL EVIDENCE RULE. No. 530. 
 
 what was tantamount to it, took place. . . . Then, has there been a 
 second delivery in this case? Goodright dem. Carter v. Straphan es- 
 tablishes this point, viz., that circumstances alone may be equivalent to 
 a redelivery. Lord Mansfield, after citing two cases from the year- 
 books, which confirm the proposition, that it is not necessary for a deed 
 to be re-executed or reattested, but redelivered only, says, 'Now, de- 
 livery is an act in pais only. The question, then, is, Whether the law 
 has laid down any precise form in which delivery must be made, or 
 whether circumstances may not be equivalent to it without actual de- 
 livery? . . . No manual tradition or handing over of the deed to the 
 grantees is necessary.'' 
 
 Wilde: . . . "The deed was perfect when it was first executed, and, 
 therefor, re-excution, which implies that the deed is previously imper- 
 fect, could not have any operation. It was signed, sealed, and deliv- 
 ered: the estate had passed out of the relessor, and had vested in the 
 relessee, and the attestation was such as to show the deed to be a per- 
 fect instrument. According to Perkins, s. 154 (a passage cited by Lord 
 Mansfield), 'If the first delivery take any effect, the second delivery 
 is void.' As to the instrument's operating as an escrow till the blanks 
 were filled up, Com. Dig. Fait. (A. 3), Shep. Touch. 58, and 4 Cruise, 
 36, are express authorities to show, that if a deed be delivered as an 
 escrow, it must be so delivered in terms, and the fact must be noticed 
 in the attestation. . . . Secondly, the rule of law is clear and undis- 
 puted, that any alteration of a deed in a material point by insertions, 
 erasures, or otherwise, will avoid the deed, even though the alteration 
 may have been innocently or laudably intended." 
 
 Best, C. J.: "This was an issue which the Court thought it right to 
 direct, for the purpose of ascertaining whether these deeds had been 
 properly executed, or were obtained by fraud. The jury have found 
 that all the deeds were properly executed, and they have negatived the 
 fraud. An application has been since made to grant a new trial on 
 several grounds. . . . The third objection is, that the trust deed was a 
 complete deed at the time the witness attested its execution in the 
 King's Bench prison, and that the learned Judge ought not to have left 
 it to the jury to presume another delivery; that if it was a perfectly 
 executed deed, the alterations made subsequently to its execution, though 
 with the assent of all the parties render that deed a nullity; and that if 
 the trust deed be a nullity, all the other deeds are useless, because they 
 refer to this, and cannot stand as a complete conveyance without it. 
 
 "I am disposed to agree, though it is not necessary to decide that 
 point, that if the trust deed is to fall, all the deeds will fall. But I am 
 of opinion that all the deeds must stand. . . . This brings us, therefore, 
 to the great questions in this case. TEey have been divided into two. 
 It has been first insisted that there was no perfect execution of the 
 deed until the sum of 14,858^. was written in it ; and if there was not a 
 perfect execution of the deed up to that time, then it was competent for 
 my brother Holroyd to refer it to the jury, to consider whether they 
 
No. 530. A. CREATION OF LEGAL ACTS. 563 
 
 would not presume an execution of the deed after all the sums were 
 written in, and it was rendered a perfect deed. I am of opinion that 
 this is a correct view of the case. 
 
 ". . . That brings us to the question, Was there any. perfect delivery 
 of this deed antecedent to the period when these sums were written in? 
 If one looks at the deed, and particularly at that part of the deed which 
 my learned brother has referred us to, it is quite impossible that the 
 deed could be considered as having any operation till these sums were 
 actually written in, because, what was the object of the deed? The 
 object of all the deed was to convey the estates to trustees, that those 
 estates might be sold, and that the proceeds of those estates might be 
 applied to pay certain creditors' debts, which were to be ascertained. In 
 the preparation of the draft of this deed, blanks were left for the in- 
 sertion of sums when those sums should be ascertained. When these 
 parties met in the King's Bench prison, can it be said that that was a 
 perfect execution of the deeds, when the sums that were due to these 
 creditors remained unascertained? The operative part of the deed re- 
 fers to the payment of particular sums, which, as then, were unascer- 
 tained. It is quite clear, if nothing had passed at this time, that the 
 deed could not be an operative deed until those sums were introduced, 
 because the great object of the deed was the payment of those sums. 
 I think, therefore, taking it in this point of view, that this was not to 
 be considered as an execution of the deed, — that this was not a complete 
 deed, — and that therefore the case falls within the authority of the 
 case in Cowper, and not within the law which is extracted from Per- 
 kms. 
 
 "This deed, as I have stated, undoubtedly was not to be considered 
 as complete until the sums were introduced. But it has been said, if 
 it was delivered to the party, it could not be delivered as an escrow, 
 unless so delivered, in terms. Perhaps, technically speaking, this is 
 so; because a deed delivered to a party is not an escrow: a deed deliv- 
 ered to a stranger is an escrow till something is done: but though it is 
 delivered to a party, there are cases, and in the same page, to which 
 my learned brother referred, to show that it is not a perfect and com- 
 plete deed; Cora. Dig. tit. Faits (A 3) : 'So if it be at once delivered as 
 his deed, it is sufficient, though he afterwards explained his intent 
 otherwise, as if an obligation be made to A. and delivered to A. him- 
 self as an escrow, to be his deed on the performance of a condition, 
 this is an absolute delivery, and the subsequent words are void and 
 repugnant.' The authorities referred to in the text, in support of this 
 position, are at least conflicting; but in the next division (A 4) it ap- 
 pears that this position about delivery as an escrow is merely a tech- 
 nical subtilty; for the learned writer says, 'If it be delivered to the 
 party as an escrow, to be his deed on the performance of a condition, 
 it is not his deed till the condition is performed, though the party hap- 
 pens to have it before the condition is performed.' . . . 
 
 "Let us see how that doctrine applies to the present case. The par- 
 
564 PAROL EVIDENCE RULE. JHo. 530. 
 
 ties meet; something is to be done before a complete deed can be made- 
 the sums are to be ascertained which the different creditors are to be 
 paid. They cannot be ascertained that day; it is ascertained at a sub- 
 sequent day, and they are written in. Take it, if you please, that this 
 is a delivery of the deed as a deed; it is not a delivery of the deed in 
 the language of Lord Coke, upon condition; that is, upon condition 
 that something is to be done, which at that time was not done? That 
 something is afterwards done: then, and not till then, it becomes a 
 perfect deed. It seems to me, therefore, without touching any of the 
 cases that have ben decided on the operation of deeds, we may say that 
 this deed was not a complete deed, executed so as to have effect in 
 the hands of these parties until the sums were written in. 
 
 "I shall not, after what I have said, travel through the different 
 cases that have been cited with respect to the alteration of deeds ; but I 
 beg not to be taken as deciding, that if a deed be altered with the con- 
 sent of all the parties, after it is executed, it is not to be considered as 
 a good deed. I think, if we were driven to examine that question, it 
 would be found that, in these times, whatever might have been thought 
 formerly, if all the parties assent to the alteration of a deed, it will, in 
 its altered shape, be a good deed; but I do not decide this case on that 
 ground. I decide it on this, that it either was no deed at all, until the 
 sums were written in, and that then the jury were warranted in pre- 
 suming a delivery to make it a deed; or, if it were a deed, it was deliv- 
 ered only to have operation from the time that those sums were writ- 
 ten in, which were to give it all its effect. ... On these grounds I am 
 of opinion that the rule should be discharged." 
 
 PRICE V. HUDSON (1888). 
 125 III. 284, 287, 17 N. E. 817. 
 
 Shope, J. : "This was an action of ejectment, by John N. Price, 
 against Phoebe Hudson and William D. Hudson, to recover the north- 
 east quarter of the north-west quarter of section 3, township 3 
 "^'^ north, range 9, east, in Richland county. The general issue was 
 filed, and a trial by jury resulted in a verdict of not guilty. A motion 
 for new trial interposed by plaintiff was overruled, and judgment en- 
 tered on the verdict, from which the plaintiff below prosecutes this 
 appeal. The record shows that the tract of land in controversy was 
 patented by the government of the United States to the defendant 
 William D. Hudson, prior to the year 1863 ; that in that year said Wil- 
 liam D., and his wife and co-defendant, Phoebe Hudson, were occupying 
 the tract of land, and the dwelling house thereon, as a homestead, and 
 have ever since continued to so occupy it. It appears that said Wil- 
 liam, being about to enlist in the army of the United States, in the year 
 1863 made and acknowledged a deed for said land, in the usual form, 
 in which his wife was grantee; that he took the deed and placed it in 
 
No. 531. A. CREATION OF LEGAL ACTS, 565 
 
 a trunk in their dwelling house, telling his wife that if he got killed in 
 the army she should take the deed and have it recorded. The grantor 
 was not killed in the war, but returned in 1865, and still survives. The 
 plaintiff claims title through said deed of 1863, from said William D. 
 to Phoebe Hudson. 
 
 "... The first question presented is, did the title pass to Phoebe 
 Hudson by the deed from her husband? Waiving the question as to 
 the right of the husband to thus convey the homestead, to render the 
 deed operative as a conveyance an unconditional delivery was requisite ; 
 or if the delivery was conditional, or to take effect upon the happening 
 of some event in the future, it must appear that the condition has been 
 performed, or that the event has happened. It is not essential, however, 
 to a delivery, that the deed should pass from the hand of the grantor 
 to the grantee. Any disposition made of the deed by the grantor, with 
 the intention thereby to make delivery of it, so that it shall become 
 presently effective as a conveyance of a title, will, if accepted by the 
 grantee, constitute a sufficient delivery. The intention to deliver on 
 the one hand, and of acceptance on the other, may be shown by direct 
 evidence of the intention, or may be presumed from acts or declara- 
 tions, or both acts and declarations, of the parties, constituting parts 
 of the res gestoi, which manifest such intention ;- and in like manner the 
 presumption of a delivery may be rebutted and overcome by proof of 
 a contrary intention, or of acts and declarations from which the con- 
 trary presumption arises. It is not competent to control the effect of 
 the deed by parol evidence when it has once taken effect by delivery, 
 hut it is always competent to show that the deed, although in the 
 grantee's hands, has never, in fact, been delivered, unless the grantor, 
 or those claiming through him, are estopped in some way from assert- 
 ing the non-delivery of the deed. In this case the deed was placed in 
 the trunk by the grantor, to be taken by the g^rantee only in the event 
 'of the death of the grantor while in the army. He testifies: 'I made 
 this deed, so that if I got killed she would get the land, and my broth- 
 ers and sisters would not heir it. I never intended she should have a 
 title of the land unless I got killed in the army.' The deed never was 
 placed upon record, and remained in the trunk, where it had been de- 
 posited by the grantor, for substantially twenty years, without being 
 taken by the grantee. The testimony shows that the grantor never 
 saw the deed after 1863, when he placed it in the trunk, and the grantee 
 took no manual possession of it until in 1883, about the time the 
 ■mechanic's lien proceedings were instituted, when she, for the first 
 time, took the deed from the trunk for the purpose of obtaining advice 
 as to its effect, and upon being advised that it was, under the circum- 
 stances, ineffectual to convey title, destroyed it. She at no time as- 
 serted any claim under the deed, or attempted to do so. Both testify, 
 and are substantially uncontradicted, they did not understand that the 
 deed was ever delivered, or intended to be delivered, or that the title 
 in the land was vested in Mrs. Hudson. An application of the prin- 
 
566 PAROL EVIDENCE RULE, No. 531. 
 
 ciples before announced will fully justify the finding that the deed was 
 in fact not delivered."^ 
 
 BURKE V. DULANEY (1894). 
 153 U. S. 228, 2^4, 14. Sup. 816. 
 
 This action was brought by the testator of the appellees, upon a. 
 writing purporting to be the promissory note of the appellant for forty- 
 three hundred and eight dollars and eighty cents, dated Salt 
 ^^^ Lake City, Utah, August 10, 1883, and payable one year after 
 date, for value received, at the bank of Wells, Fargo & Co. in that city, 
 with interest at the rate of six per cent per annum from date until paid. 
 
 The defendant, Burke, denied his liability upon the note, and at the 
 trial below was sworn as a witness on his own behalf. In support of 
 his defence, as set forth in the answer filed by him, he stated the cir- 
 cumstances under which the note was given. He said: "Mr. Dulaney 
 bought this group of mines — the Live Yankee and the Mary Ellen. He 
 came to the Walker House in Salt Lake, and wanted me to run them, 
 for him. I said I would not do it unless I got a show to get some 
 interest in the property. He says, I will carry an interest for you, and 
 you can take it if you want it, and if notj you can give it back to me 
 after you see the property." To this testimony the plaintiff objected, 
 and the defendant admitting that the agreement referred to by him was 
 oral, the objection was sustained. To this ruling he excepted. Being 
 asked what he did after giving the note in suit, he answered: "I gave 
 the note. I worked on the property, which was done some time in 
 September; worked the property until March; settled up all of its 
 debts, paid them, notified Dulaney I wanted nothing more to do with 
 the property; that I was going to Idaho Territory, to Coeur d' Alene 
 mines, and as I was ready to give him a deed at any time he would send - 
 me my note. That is all." Objection being made by the plaintiffs to 
 this testimony, the defendant offered to prove "that at the time of the 
 giving of the note and prior thereto, Dulaney, the payee of the note, 
 agreed with Mr. Burk, the maker of the note, that the note should be 
 given to represent the price of the interest that Mr. Burke was to 
 have, conditioned upon his demanding it after an inspection of the 
 mining property mentioned." He offered also to prove that after in- 
 specting the property and testing it, the defendant notified testator that 
 he did not want the interest; that he was prepared to make a deed for 
 the interest to the latter, and demanded the delivery of his note. All 
 this evidence was excluded by the Court upon motion of the plaintiffs- 
 to which ruling the defendant excepted. The defendant having stated 
 that the conversation with the testator above referred to, and which 
 was executed by the Court, took place prior to the execution of the 
 note, he offered to prove that at the time the note was made, the same 
 
 3 — Compare the authorities cited in W., § 2408. 
 
No. 532. A. CREATION OF LEGAL ACTS. 567 
 
 agreement was made orally between him and the testator. This tes- 
 timony was also excluded, and he excepted. . . . 
 
 Harlan, J.: "The general rule that a written contract cannot be 
 contradicted or varied by evidence of an oral agreement between the 
 parties before or at the time of such contract, has been often recog- 
 nized and applied by this Court, especially in cases in which it was 
 sought to deprive bona fide holders of or parties to negotiable se- 
 curities of the rights to which they were entitled according to the legal 
 import of the terms of such instruments. . . . The authorities cited do 
 not determine the present case. The issue here is between the original 
 parties to the note. And the evidence offered by the appellant, and ex- 
 cluded by the Court, did not in any sense contradict the terms of the 
 writing in suit, nor vary their legal import, but tended to show that the 
 written instrument was never, in fact, delivered as a present contract, 
 unconditionally binding upon the obligor according to its terms from the 
 time of such delivery, but was left in the hands of Dulaney, to become 
 an absolute obligation of the maker in the event of his electing, upon 
 examination or investigation, to take the stipulated interest in the prop- 
 erty in question. In other words, according to the evidence offered and 
 excluded, the written instrument, upon which this suit is based, was not 
 — except in a named contingency — to become a contract, or a promissory 
 note which the payee could at any time rightfully transfer. Evidence of 
 such an oral agreement would show that the contingency never happened, 
 and would not be in contradiction of the writing. It would prove that 
 there never was any concluded, binding contract entitling to the party 
 who claimed the benefit of it to enforce its stipulations. The exclusion 
 of parol evidence of such an agreement could be justified only upon the 
 ground that the mere possession of a written instrument, in form a 
 promissory note, by the person named in it as payee, is conclusive of his 
 right to hold it as the absolute obligation of the maker. While such 
 possession is, undoubtedly, prima facie, indeed, should be deemed strong 
 evidence that the instrument came to the hands of the payee as an obli- 
 gation of the maker, enforcible according to its legal import, it is open to 
 the latter to prove the circumstances under which possession was ac- 
 quired, and to' show that there never was any complete, final delivery of 
 the writing as the promissory note of the maker, payable at all events 
 and according to its terms. The rule that excludes parol evidence in 
 contradiction of a written agreement presupposes the existence in fact 
 of such agreement at the time suit is brought. But the rule has no 
 application if the writing was not delivered as a present contract. . . . 
 
 "For the reasons stated, and without considering the case in other 
 aspects, we are of opinion that it was error to exclude the evidence of- 
 fered by the defendant tending to show that the writing sued on was not 
 delivered to or received by Dulaney as the promissory note of the de- 
 fendant, binding upon him as a present obligation, enforcible according 
 to its terms, but was delivered to become an obligation of that character 
 when, but not before, the defendant examined and, by working them. 
 
568 PAROL EVIDENCE RULE. No. 532. 
 
 tested the mining properties purchased by the plaintiff, and elected to 
 take the stipulated interest in them."* 
 
 PYM V. CAMPBELL (1856). 
 6 E.& B. S70. 
 
 Action on a contract to purchase shares in an invention. The con- 
 tract was dated Jan. 17, 1854^ named the respective shares and prices, 
 
 and was signed by Campbell, Pym, Mackenzie, and Pritchard. 
 bii -pjjg defendants gave evidence that, in the course of the negoti- 
 
 ations with the plaintiff, they had got so far as to agree on the price atl 
 which the invention should be purchased if bought at all, and had ap-i 
 pointed a meeting at which the plaintiff was to explain his invention to' 
 two engineers appointed by the defendants, when, if they approved, the 
 machine should be bought. At the appointed time the defendants and 
 two -engineers of the names of Fergusson and Abernethie attended ; but 
 the plaintiff did not come; and the engineers went away. Shortly after 
 they were gone the plaintiff arrived. Fergusson was found, and ex- 
 pressed a favorable opinion ; but Abernethie could not then be found. 
 It was then proposed that, as the parties were all present, and might 
 find it troublesome to meet again, an agreement should be then drawn 
 up and signed, which, if Abernethie approved of the invention, should 
 be the agreement, but, if Abernethie did not approve, should not be 
 one. Abernethie did not approve of the invention when he saw it; and 
 the defendants contended that there was no bargain. The Lord Chief 
 Justice told the jury that, if they were satisfied that, before the paper 
 was signed, it was agreed amongst them all that it should not operate 
 as an agreement until Abernethie approved of the invention, they should 
 find for defendant on the pleas denying the agreement. Verdict for the 
 defendants. 
 
 Erle, J.: "I think that this rule ought to be discharged. The point 
 made is that this is a written agreement, absolute on the face of it, and 
 that evidence was admitted to show it was conditional; and if that had 
 been so it would have been wrong. But I am of opinion that the evi- 
 dence showed that in fact there was never any agreement at all. The 
 production of a paper purporting to be an agreement by a party, with his 
 signature attached, affords a strong presumption that it is his written 
 agreement; and, if in fact he did sign the paper animo contrahendi, the 
 terms contained in it are conclusive, and cannot be varied by parol evi- 
 dence. But in the present case the defence begins one step earlier; the 
 parties met and expressly stated to each other that, though for con- 
 -venience they would then sign it as an agreement until Abernethie was 
 consulted. I grant the risk that such a defence may be set up without 
 ground; and I agree that a jury should therefore always look on such 
 a defence with suspicion ; but, if it be proved that in fact the paper was 
 
 4 — Compare the authorities cited in W., § 2409. 
 
No. 534. A. CREATION OF LEGAL ACTS. 569 
 
 signed with the express intention that it should not be an agreement, the 
 other party cannot fix it as an agreement upon those so signing. The 
 distinction in point of law is that evidence to vary the terms of an agree- 
 ment in writing is not admissible, but evidence to show that there is not 
 an agreement at all is admissible." 
 
 Crompton, J. : "I also think that the point in this case was properly 
 left to the jury. If the parties had come to an agreement, though sub- 
 ject to a condition not shown in the agreement, they could not show the 
 condition, because the agreement on the face of the writing would have 
 been absolute, and could not be varied. But the finding of the jury is 
 that this paper was signed on the terms that it was to be an agreement 
 if Abernethie approved of the invention, not otherwise. I know of no 
 rule of law to estop parties from showing that a paper, purporting to be 
 a signed agreement, was in fact signed by mistake, or that it was signed 
 on the terms that it should not be an agreement till money was paid, or 
 something else done. When the instrument is under seal it cannot be a 
 deed until there is a delivery; and when there is a delivery that estops 
 the parties to the deed, that is a technical reason why a deed cannot be 
 delivered as an escrow to the other party. But parol contracts, whether 
 by word of mouth or in writing, do not estop. There is no distinction 
 between them, except that where there is a writing it is the record of the 
 contract. The decision in Davis v. Jones, 17 Com. B. 625, is, I think, 
 sound law, and proceeds on a just distinction; the parties may not vary 
 a written agreement; but they may show that they never came to an 
 agreement at all, and that the signed paper was never intended to be the 
 record of the terms of the agreement ; for they never had agreeing minds. 
 Evidence to show that does not vary an agreement, and is admissible." 
 
 STANLEY v. WHITE (1896). 
 160 III. 605, 43 N. E. 7^p 
 
 Baker, J. : "This was a bill for partition, filed by Stanley R. White, 
 against John Stanley and others, in the circuit court of Iroquois county. 
 The cause was heard upon the original and amended bills of Stan- 
 "** ley R. White, the answers thereto, and the cross-bills of Jane S. 
 Talliaferro, Mark A. Stanley and Dicie A. Warren, and the answers 
 and replications thereto. The testimony was taken before the master in 
 chancery, and upon the filing of his report the court found all the 
 allegations in complainant's bills and in the cross-bills to be true, and 
 that partition and division ought to be made as prayed in complainant's 
 bills, and rendered a decree accordingly. From that decree defendant, 
 John Stanley, prosecutes this appeal. He objects to that part of the 
 decree awarding partition of the north-east quarter of the southwest 
 quarter of section 33, township 27, north, range 12, west of the second 
 principal meridian. His contention is, that Jane Talliaferro, Mark 
 Stanley and Dicie Warren have no rights in said land, and are not 
 
570 PAROL EVIDENCE RULE. No. 534. 
 
 entitled to the one-sixth interest each therein ordered by said decree 
 to be set off to them. He claims that their, interests therein they had 
 conveyed to him by a good and sufficient deed prior to the institution 
 of this suit, and he asks that the decree, as to that part of it awarding 
 to said Jane Talliaferro, Mark Stanley and Dicie Warren a one-sixth 
 interest each in said land, be reversed. 
 
 "The evidence shows that appellant and Jane Talliaferro, Dicie 
 Warren, Mark Stanley and Joseph Stanley, children, and Stanley R. 
 White, grandchild, of Micajah Stanley, who died intestate, are his sole 
 surviving heirs. Among other lands of which he died seized was the 
 land above described. After his father's decease, appellant desired to 
 obtain a conveyance to himself of the interests of the heirs in said 
 land. To that end he had prepared for him the deed here in contro- 
 versy, which bears the date of March 15, 1889, and was signed by Mark 
 A. Stanley and Jennie E., his wife, Jane S. Talliaferro, widow, and 
 Dicie A. Warren and George E., her husband, all of whom admit that 
 they signed the deed with a full knowledge of its contents. Mark A. 
 and Jennie E. Stanley and Jane S. Talliaferro duly acknowledged the 
 deed on July 25, 1889, and it was acknowledged by Dicie A. and George 
 E. Warren on November I, 1892. The evidence shows that all of the 
 grantors did not sign the deed at thg same time, but that some signed 
 at one time and others at other times, and that after the several sign- 
 ings the deed was each time returned either to appellant or to his 
 mother, who was acting for him. The deed has remained under his 
 control ever since the day it bears date. The grantors do not contend 
 there was any fraud, duress or undue influence used to induce them to 
 sign the deed. Their only claim is, that it was the understanding, be- 
 tween them and appellant, at the time the deed was executed, that it 
 was not to be operative unless signed by all the heirs of Micajah Stan- 
 ley. 
 
 "The question to be decided is, was there, or was there not, a de- 
 livery of this deed' by the grantors to appellant ? The answer depends 
 upon the answer to the further question, what was the intention of the 
 parties at the time the transaction took place? If the parties intended 
 that a present title should pass, then plainly there was a delivery. If, 
 after appellees had signed and acknowledged the deed, they had merely 
 handed it to appellant for the purpose, solely, of having him get the 
 signatures of the other heirs thereto, that would not have constituted 
 a delivery, but would have been a mere manual transfer of possession, 
 and would not have passed the title. If, however, the deed being ready 
 for delivery, they had given it to him intending at the time to 
 pass a present title, but with the mutual verbal understanding 
 that the deed should subsequently become inoperative and void 
 if the other heirs should refuse to sign it when requested so to do, then 
 there would have been a delivery and the title would have passed, and 
 the grantors could not thereafter set up the non-performance of the 
 
No. 535. A. CREATION OF LEGAL ACTS. 571 
 
 condition in order to defeat the deed, but would be concluded by its 
 terms. (Stevenson v. Crapnell, 114 111. 19; McCann v. Atherton, 106 
 id. 31 ; Weber v. Christen, 121 id. 91.) The latter hypothesis presents 
 the facts shown by the record in this case. The deed, absolute on its 
 face, was properly signed and acknowledged. The grantors were ac- 
 quainted with its contents, and they deposited it with the grantee, and 
 under his control it has remained ever since. The weight of the evi- 
 dence show's that when the grantors gave him the deed they thought 
 they were divesting themselves of the title, and intended so to do. 
 Their only concern seems to have been that all the other heirs should 
 do as they were doing, hence the condition was added that if the other 
 heirs refused to sign the deed it should become void. That was the 
 condition, and not that the deed was not to take effect unless signed by 
 the other heirs. . . . 
 
 "Appellees rely upon Roundtree v. Smith, 152 111. 493, ... as sus- 
 taining their contention that there was here no delivery. The Round- 
 tree case differs from the case at bar in this: that there the deeds were 
 given by the grantor to the grantee with the mutual understanding that 
 they were not to take effect until the return by the grantee of certain 
 securities to the grantor, and that the deeds were to remain subject to 
 the latter's control until the securities should be offered and accepted. 
 The securities, however, were not given. We said there, as here, that 
 the intention must govern, and held that there was no delivery because 
 the deeds were not given to the grantee with the intention of then 
 passing the title; that the grantor had never parted with the control 
 over them, and she consequently had a right to demand them back at 
 any time before the transaction was completed. . . . We are of the 
 opinion that appellant is entitled to the estate in the land in contro- 
 versy which the deed here in question purports to convey to him.''^ 
 
 2. Intent and Mistake. 
 
 BRETT V. RIGDON (1568). 
 Plowd. 340, 343. 
 
 "The makingi of a testament consists of three parts, as do all other 
 human acts which are done with discretion [j. «■. sound mind], viz., incep- 
 tion, progression, and consummation. . . . But there is one same 
 thing annexed to each of these parts, and that is the intent of the 
 party, for every one who does any act with discretion has an intent in 
 the inception of it, . . . and in the progression and consummation of it 
 the same intent also subsists ; so that one same intent runs through all 
 the parts and continues in the doing of them". 
 
 I— Compare the authorities cited in W., § 2410; and the doctrine of No. 562, post. 
 
572 PAROL EVIDENCE RULE. No. 536. 
 
 John Austin, Jurisprudence, Campbell's ed., Sect. XVIII, XIX, 
 §§ 601-617 (about 1832) : "In order that we may settle the import of 
 the term 'intention,' it is necessary to settle the import of the term 
 " 'will.' For, although an intention is not a volition, they are in- 
 
 separably connected. . . . These expressions, and others of the same 
 import, merely signify this: Certain movements of our bodies follow 
 invariably and immediately our wishes or desires for those same move- 
 ments. . . . For example: If I wish that my arm should rise, the de- 
 sired movement of my arm immediately follows my wish. There is 
 nothing to which I resort, nothing) which I wish, as a mean or instru- 
 ment wherewith to attain my purpose. But if I wish to lift the book 
 which is now lying before! me, I wish certain movements of my bodily 
 organs, and I employ these as a mean or instrument for the accomphsh- 
 ment of my ultimate end. . . . Our desires of those bodily movements 
 which immediately follow our desires of them, are therefore the only 
 objects which can be styled volitions. And as these are the only voli- 
 tions, so are the bodily movements, by which they are immediately fol- 
 lowed, the only acts or actions properly so called. . . . Most of the 
 names which seem to be names of acts, are names of acts coupled with 
 certain of their consequences. For example: If I kill you with a gun 
 or pistol, I shoot you. And the long train of incidents which are de- 
 noted by that brief expression, are considered (or spoken of) as if they 
 constituted an act, perpetrated by me. In truth, the only parts of the 
 train which are my act or acts, are the muscular motions by which I 
 raise the weapon, point it at your head or body and pull the trigger. 
 These I will. The contact of the flint and steel, the ignition of the 
 powder, the flight of the ball towards your body, the wound and subse- 
 quent death, with the numberless incidents included in these, are con- 
 sequences of the act which I will. I will not those consequences, al- 
 though I may intend them. But in common language the words 'will' 
 and 'intend' are often confounded. . . . To desire the act is to will it. 
 To expect any of its consequences is to intend those consequences. The 
 act itself is intended as well as willed. For every volition is accom- 
 panied by an expectation or belief, that the bodily movement will im- 
 mediately follow the wish. And hence (no doubt) the frequent con- 
 fusion of will and intention. Feeling that will implies intention, nu- 
 merous writers upon jurisprudence (and Mr. Bentham amongst the 
 number), employ, 'will' and 'intention' as synonymous or equivalent 
 terms. They forget that intention does not imply 'will'." 
 
 Thomas Erskine Holland, Jurisprudence, 3d ed., 99 (1886) : "It 
 
 was laid down by Savigny that, in order to the production of a juristic 
 
 act, the will and its expression must be in correspondence. This 
 
 "** view is in accordance with the prima facie interpretation of most 
 
 of the relevant passages in the Roman lawyers, and is still predominant 
 
No. 537. A. CREATION OF LEGAL ACTS, 573 
 
 in Germany, but certainly cannot be accepted as universally true. An 
 investigation into the correspondence between the inner will and its 
 outward manifestations is in most cases impossible, and where possible 
 is in many cases undesirable. ... Is it the case that a contract is not 
 entered into unless the will of the parties are really at one ? Must there 
 be, as Savigny puts it, 'a union of several wills to a single, whole, and 
 undivided will?' Or should we not rather say that here, more even 
 than elsewhere, the law looks, not at the will itself, but at the will as 
 voluntarily manifested? When the law enforces contracts, it does so to 
 prevent disappointment of well-founded expectations, which, though 
 they usually arise from expressions truly representing intention, yet 
 may occasionally arise otherwise. If, for instance, one of the parties 
 to a contract enters into it, and induces the other party to enter it, 
 resolved all the while not to perform his part under it, the contract will 
 surely be good nevertheless. Not only will the dishonest contractor 
 be unable to set up his original dishonest intent as an excuse for non- 
 performance, but should he, from any change of circumstances, become 
 desirous of enforcing the agreement against the other party, the latter 
 will never be heard to establish, even were he in a position to do so by 
 irrefragable proof, that at the time when the agreement was made the 
 parties to it were not really of one mind. . . . The language of systems 
 of positive law upon the point is generally ambiguous, nor is this to 
 be wondered at. The question is practically a new one. The process 
 of giving effect to the free acts of the parties to a contract, rather than 
 to the fact that certain rigidly defined formalities have been complied 
 with, has lasted so long that legal speculation has only recently begun 
 to analyse the free act itself into two factors of an inner will and an 
 outward expression, and to assign to one or to the other a dominant 
 place in the theory of contract. Just as the Romans used, without an- 
 alysing them, the terms 'velle,' 'concensus' 'sententia,' so the modern 
 Codes, though some appear to look rather to the inner will, others 
 rather to its outward expression, as a rule employ language which is 
 capable of being interpreted in either direction. The same may be said 
 of the English cases. In these one constantly meets with such phrases 
 as 'between him and them there was no concensus of mind,' 'with him they 
 never intended to deal' ; but one also meets with much that supports the 
 view of the question which we venture to hope may ultimately commend 
 itself to the Courts as being at once the most logical' and the most fa- 
 vourable to the interests of commerce. ... In other words:' the legal 
 meaning of such acts on the part of one man as induce another to enter 
 into a contract with him, is not what the former really intended, nor 
 what the latter really supposed the former to intend, but what a 'rea- 
 sonable man,' i. e. a judge or jury, would put upon such acts. This 
 luminous principle at once sweeps away the ingenious speculations of 
 several generations of moralists, while it renders needless long lists of 
 subtle distinctions which have been drawn from decided cases." - 
 
674 PAROL EVIDENCE RULE. No. 538. 
 
 Pollock, C. B., in Cornish v. Abington, 4 H. &■ N., 549, ^^^ 
 (1859) : "The word 'wilfully/ in the rule as laid down in Pickard v. 
 Sears, means nothing more than 'voluntarily.' Lord Wensley- 
 "^° dale, perceiving that the word 'wilfully' might be read as opposed 
 not merely to 'involuntarily' but to 'unintentionally,' showed that if the 
 representation was made voluntarily, though the effect on the mind of the 
 hearer was produced unintentionally, the same result would follow. If 
 a party uses language which, in the ordinary course of business and the 
 general sense in which words are understood, conveys a certain mean- 
 ing, he cannot afterwards say he is not bound if another, so understand- 
 ing it, has acted upon it. If any person, by a course of conduct, or by 
 actual expressions, so conducts himself that another may reasonably 
 infer the existence of an agreement or license, whether the party intends 
 that he should da so or not, it has the effect that the party using that 
 language, or who has so conducted himself, cannot afterwards gainsay 
 the reasonable inference to be drawn from his words or conduct." 
 
 FOSTER V. MACKINNON (1869). 
 L. R. 4 C. P. 704. 
 
 Action by indorsee against indorser on a bill of exchange for 3000/. 
 drawn on the 6th of November, 1867, by one Cooper upon and accepted 
 by one Callow, payable six months after date, and indorsed suc- 
 cessively by Cooper, the defendant, J. P. Parker, T. A. Pooley & 
 Co., and A. G. Pooley, to the plaintiff, who became the holder for value 
 (having taken it in part-payment of a debt due to him from A. G. 
 Pooley) before it became due, and without notice of any fraud. The 
 pleas traversed the several indorsements, and alleged that the defend- 
 ant's indorsement was obtained from him by fraud. 
 
 The cause was tried before Bovill, C. J., at the last spring assizes at 
 Guildford. The defendant, who was a gentleman far advanced in years, 
 swore that the indorsement was not in his handwriting, and that he had 
 never accepted nor indorsed a bill of exchange; but there was evidence 
 that the signature was his; and Callow, who was called as a witness 
 for the plaintiff, stated that he saw the defendant write the indorsement 
 under the following circumstances : — Callow had been secretary to a 
 company engaged in the formation of a railway at Sandgate, in Kent, 
 in which the defendant (who had property in the neighborhood) was 
 interested; and the defendant had some time previously, at Callow's 
 request, signed a guarantee for 3000/., in order to enable the company 
 to obtain an advance of money from their bankers. Callow took the 
 bill in question (which was drawn and indorsed by Cooper) to the 
 defendant, and asked him to put his name on it, telling him it was a 
 guarantee; whereupon the defendant, in the belief that he was signing 
 a guarantee similar to that which he had before given (and. out of 
 which no liability had resulted to him), put his signature on the back 
 
No. 539. A. CREATION OF LEGAL ACTS, 575 
 
 of the bill immediately after that of Cooper. Callow only shewed the 
 defendant the back of the paper: it was, however, in the ordinary 
 shape of a bill of exchange, and bore a stamp, the impress of which 
 was visible through the paper. 
 
 The Lord Chief Justice told the jury that, if the indorsement was not 
 the signature of the defendant, or if, being his signature, it was ob- 
 tained upon a fradulent representation that it was a guarantee, and the 
 defendant signed it without knowing that it was a bill, and under the 
 belief that it was a guarantee, and if the defendant was not guilty of 
 any negligence in so signing the paper, he was entitled to the verdict. 
 The jury returned a verdict for the defendant. 
 
 Byles, J.: "This was an action by the plaintiff as indorsee of a bill 
 of exchange for 3000/., against the defendant, as indorser. The defend- 
 ant by one of his pleas traversed the indorsement, and by another al- 
 leged that the defendant's indorsement was obtained from him by fraud. 
 The plaintiff was a holder for value before maturity, and without notice 
 of any fraud. ... A rule nisi was obtained for a new trial, first, on the 
 ground of misdirection in the latter part of the summing-up, and sec- 
 ondly, on the ground that the verdict was against thq evidence. 
 
 "As to the first branch of the rule, it seems to us that the question 
 arises on the traverse of the indorsement. The case presented by 
 the defendant is, that he never made the contract declared on; that he 
 never saw the face of the bill; that the purport of the contract was 
 fraudulently misdescribed to him; that, when he signed one thing, he 
 was told and believed that he was signing another and an entirely dif- 
 ferent thing; and that his mind never went with his act. It seems 
 plain, on principle and on authority, that, if a blind man, or a man who 
 cannot read, or who for some reason (not implying negligence) for- 
 bears to read, has a written contract falsely read over to him, the 
 reader misreading to such a degree that the written contract is of a 
 nature altogether different from the contract pretended to be read from 
 the paper which the blind or illiterate man afterwards signs; then, at 
 least if there be no negligence, the signature so obtained is of no force. 
 And it is invalid not merely on the ground of fraud, where fraud exists, 
 but on the ground that the mind of the signer did not accompany the 
 signature; in other words, that he never intended to sign, and therefore 
 in contemplation of law never did sign, the contract to which the name 
 js appended. 
 
 "The authorities appear to us to support this view of the law. In 
 Thoroughgood's Case (2 Co. Rep. 96), it was held that, if an illiterate 
 man have a deed falsely read over to him, and he then seals and delivers 
 the parchment, that parchment is nevertheless not his deed. In a note 
 to Thoroughgood's Case, in Eraser's edition of Coke's Reports, it is 
 suggested that the doctrine is not confined to the condition of an illiter- 
 ate grantor. . . . The position that, if a grantor or covenantor be de- 
 ceived or misled as to the actual contents of the deed, the deed does 
 
576 PAROL EVIDENCE RULE. No. 539. 
 
 not bind him, is supported by many authorities. . . . Accordingly, it has 
 recently been decided in the Exchequer Chamber, that, if a deed be 
 delivered, and a blank left therein be afterwards improperly filled up (at 
 least if that be done without the grantor's negligence), it is not the 
 deed of the grantor: Swan v. North British Australasian Land Com- 
 pany (2 H. & C. 175). 
 
 "These cases apply to deeds; but the principle is equally applicable 
 to other written contracts. Nevertheless, this principle, when applied 
 to negotiable instruments, must be and is limited in its application. 
 These instruments are not only assignable, but they form part of the 
 currency of the country. A qualification of the general rule is necessary 
 to protect innocent transferrees for value. If, therefore, a man write 
 his name across the back of a blank bill-stamp, and part with it, and 
 the paper is afterwards improperly filled up, he is liable as indorser. 
 If he write it across the face of the bill, he is liable as acceptor, when 
 the instrument has once passed into the hand of an innocent indorsee 
 for value before maturity, and liable to the extent of any sum which 
 the stamp will cover. In these cases, however, the party signing knows 
 what he is doing: the indorser intended to indorse, and the acceptor 
 intended to accept, a bill of exchange to be thereafter filled up, leaving 
 the amount, the date, the maturity, and the other parties to the bill 
 undetermined. But, in the case now under consideration, the defend- 
 ant, according to the evidence, if believed, and the finding of the jury, 
 never intended to indorse a bill of exchange at all, but intended to sign 
 a contract of an entirely different nature. It was not his design, and 
 if he were guilty of no negligence, it was not even his fault that the in- 
 strument he signed turned out to be a bill of exchange. It was as if he 
 had written his name on a sheet of paper for the purpose of franking 
 a letter, or in a lady's album, or on an order for admission to the Tem- 
 ple Church, or on the fly-leaf of a book, and there had already been, 
 without his knowledge, a bill of exchange or a promissory note payable 
 to order inscribed on the other side of the paper. 
 
 "To make the case clearer, suppose the bill or note on the other 
 side of the paper in each of these cases to be written at a time subse- 
 quent to the signature, then the fraudulent misapplication of that gen- 
 uine signature to a different purpose would have been a counterfeit 
 alteration of a writing with intent to defraud, and would therefore 
 have amounted to a forgery. In that case, the signer would not have 
 been bound by his signature, for two reasons — first, that he never in 
 fact signed the writing declared on — and, secondly, that he never in- 
 tended to sig^n any such contract. In the present case, the first reason 
 does not apply, but the second reason does apply. The defendant never 
 intended to sign that contract, or any such contract. He never in- 
 tended to put his name to any instrument that then was or thereafter 
 might become negotiable. He was deceived, not merely as to the legal 
 effect, but as to the actual contents of the instrument. . . . 
 
No. 540. A. CREATION OF LEGAL ACTS. 577 
 
 "For these reasons, we think the direction of the Lord Chief Justice 
 was right. With respect, however, to the second branch of the rule, 
 we are of opinion that the case should undergo further investigation. 
 We abstain from giving our reasons for this part of our decision only 
 lest they should prejudice either party on a second inquiry. The rule, 
 therefore, will be made absolute for a new trial." 
 
 TRAMBLY v. RICARD (1881). 
 ISO Mass. 259. 
 
 Colt, J.: "The first count in the plaintiff's declaration is for tres- 
 pass to real estate, and removing the plaintiff's furniture. The second 
 is for the conversion of the same furniture. The defendants, in 
 "*'' justification of their acts, rely upon an alleged breach of the 
 plaintiff's written agreement, which stated that he borrowed the furni- 
 ture of them, and by which he agreed to hold the furniture as their 
 property, paying them a weekly sum for the use of the same, with the 
 privilege of buying it at a price named. To this contract, the plaintiff, 
 being unable to read or write, affixed his mark. He contended at the 
 trial that it was obtained from him by fraud, and offered to prove that, 
 before he affixed his mark, the defendants orally agreed to sell the 
 furniture to him at a price named, part of which was to be paid down, 
 and the balance in instalments; that nothing was said at any time 
 about borrowing or paying rent for it; and that, immediately after 
 agreeing on the terms, the defendants requested him to sign the written 
 contract, which he did, supposing the same to contain the terms and 
 stipulations of the oral agreement. The plaintiff testified that the 
 written agreement was not read or explained to him, and that he did 
 not request that it should be. He admitted that the defendants made no 
 verbal or written representations of its contents. The judge excluded 
 the evidence; and the only question here is whether the jury would 
 be justified in finding from it that the written agreement was fraudu- 
 lently obtained. 
 
 "In the absence of fraud or imposition, it is presumed that the terms 
 of a written contract were known and assented to by the parties who 
 signed it; that they either read it, or were informed of its contents, or 
 were willing to assent to its terms without reading it. This presumption 
 is not defeated by showing that the contract signed was different from 
 that which one or the other supposed he was signing. It is not per- 
 mitted to show that another contract was the real contract, because the 
 parties have chosen to put their agreement in writing, as the better 
 way to preserve its terms, and parol evidence cannot be admitted to 
 vary it. But this familiar rule does not exclude evidence which tends 
 to show that the written contract was by some fraud or imposition never 
 in fact freely and intelligently signed by the party sought to be 
 charged. It may always be shown that he was not possessed of th? 
 
578 PAROL EVIDENCE RULE. No. 540. 
 
 requisite capacity, or that his signature was obtained by fraud. . . . 
 A party who is ignorant of the contents of a written instrument, from 
 inability to read, who signs it without intending to, and who is charge- 
 able with no negligence in not ascertaining the character of it, is no 
 more bound than if it were a forgery. There has been no intelligent 
 assent to its terms, and it is a fraud in one who with knowledge of 
 the fact attempts to enforce it. . . . We are of opinion, that the 
 evidence offered should have been submitted to the jury, with proper 
 instruction."^ 
 
 ESSEX V. DAY (1885). 
 52 Conn. 483. 
 
 Suit for the correction of certain bonds issued by the plaintiils, 
 which were in terms payable at the end of twenty years from their date, 
 but which were intended to be issued with a provision that the 
 town might at its option pay them in ten years from date; 
 brought to the Superior Court in Middlesex County. The following 
 facts were found by a committee : On the 25th day of September, 1869, 
 the town of Essex subscribed for four hundred and eighty shares of 
 the capital stock of the Connecticut Valley Railroad Company, and on 
 the 27th day of April, 1870, directed the issue of town bonds to the 
 amount of $48,000 to pay for the stock. . . . 
 
 At a special meeting held on the 27th day of April, 1870, a com- 
 mittee had made the following report: "That the town issue coupon 
 bonds of the denomination of one thousand dollars each, numbered 
 from one to forty-eight consecutively, to be payable at the option of the 
 town in ten years from date, and due in twenty, denominated ten-twenty 
 bonds, bearing interest six per cent per annum; the interest payable 
 semi-annually; . . ." The town passed the resolution recommended 
 and the selectmen at once entered upon their duties under it. They 
 did not intend to have the bonds printed as they were printed, as below 
 stated, but did intend that they should be printed so as to be payable 
 at the option of the town in ten years from their date. 
 
 The printing of the bonds was procured by James C. Walkley, the 
 president of the railroad company, who attended to that duty for 
 Essex and other towns. He did it for Essex at the request of C. O. 
 Spencer, agent of the town, who gave him a written memorandum 
 which Mr. Walkley gave to the Kellogg & Bulkeley Printing Company, 
 and which called for ten-twenty bonds only. The printing company 
 
 I — Compare the authorities cited in W., tiiice to throw him off his guard, delib- 
 
 §2415, and the following statement of erately signs a written agreement without 
 
 the rule: Black v. if. Co., iii 111. 351, informing himself as to the nature of its 
 
 358 (1884): "When a party of mature contents, he will nevertheless be bound." 
 
 years and sound mind, being able to read 2 — Compare the authorities cited in W., 
 
 and write, without any imposition or ar- § 2416. 
 
No. 541. A. CREATION OF LEGaL ACTS. 579 
 
 consulted with Mr. Walkley as to the general form of the bonds, and 
 showed him blank forms of bonds; but the bonds were printed twenty- 
 year bonds by mistake in the printing. The bonds as printed were re- 
 turned to thq agents of the town, and "competent authority" appointed 
 by the selectmen signed them and they were then left with the town 
 treasurer to be sold. There were in all forty-eight bonds of $i,ooo each. 
 Of these bonds the four in question in this case were sold about Janu- 
 ary 1st, 1870, to F. A. Tiffany, then a citizen of the town of Essex. 
 Each bond had attached interest coupons payable every six months 
 through the twenty years from date. ... At the time the town 
 treasurer signed the bonds he signed them supposing they were payable 
 at the option of the town in ten years from their date. He signed them 
 all without reading any of them. The bonds were left with the town 
 treasurer for delivery to purchasers. . . . 
 
 At the time Tiffany bought the bonds the then town treasurer, 
 Edward W. Redfield, told him that the bonds were ten-twenty bonds, 
 and at the option of the town could be called in and paid at the ex- 
 piration of ten years from their date, and that such was the vote 
 of the town in authorizing the issue of the bonds. But Tiffany did 
 not care whether the bonds were redeemable in five, ten or twenty 
 years, and would have bought them as readily in the one case as in 
 either of the others. Tiffany sold these bonds in the autumn of 1878 
 to Daniel S. Swan. Before Swan bought them he called upon the then 
 town treasurer in relation to the bonds, and to know what the action 
 of the town would be, and the treasurer told him what the vote of 
 the town was in authorizing the issue of the bonds, and that the town 
 would call them in at the expiration of ten years from their date, and 
 pay them up; and that the town had already called them in, but by 
 mistake they had been called a year too soon. Swan sold these bonds to 
 the defendant April 20th, 1880, at a premium of not over two per 
 cent. The defendant at the time of his purchase had full knowledge 
 of the vote of the town in relation to the issue of the bonds, and that 
 the town had called them for payment. . . . On the 25th of February, 
 1880, the town gave notice by publication in various newspapers that the 
 bonds would be paid at the office of the treasurer on the ist of April, 
 1880, and that interest upon them would cease at that time. None of the 
 agents of the town appear to have had any knowledge that there had been 
 a mistake in the issue of the bonds until the town was informed, after 
 February 25th, 1880, by the Chelsea Savings Bank, a holder of some of 
 them, that the bonds on their face were twenty year bonds and not re- 
 deemable before. . . . Upon these facts the court (Sanford, J.,) ren- 
 dered judgment for the plaintiffs and for a correction of the bonds by 
 inserting in them an option on the part of the plaintiffs to pay them at 
 the expiration of ten years from their date. The defendant appealed. 
 
 LooMis, J.: "It is not necessary for us to consider in this case 
 whether the bonds issued by the town are to be regarded as negotiable 
 
580 PAROL EVIDENCE RULE. No. 541. 
 
 and therefore protected in the hands of a bona fide holder against the 
 correction which the plaintiffs seek to procure. We may assume for 
 the purposes of this case, that, in the absence of notice on the part 
 of the defendant of the error claimed by the plaintiffs to have inter- 
 vened in the printing of the bonds, the correction could not be made. 
 
 "Starting with this assumption, the questions which present them- 
 selves for consideration are the following: — i. Have the plaintiffs, 
 through their agents, been guilty of such negligence, either in the 
 original execution and issuing of the bonds, or in the seeking of a 
 correction of the error when discovered, as precludes them from the 
 equitable relief which they seek? 2. Did the first purchaser of the 
 bonds, and afterwards the purchaser from him, and finally the de- 
 fendant at the time of his purchase, have such knowledge of the error 
 in the bonds, either actual or to be imputed, as gives the plaintiffs a 
 right, as against them, to the equitable relief which they seek ? 3. Was 
 the error one of such a character that it can be corrected by a court 
 of equity? . . . 
 
 "i. And first — have the plaintiffs been guilty of a fatal negligence? 
 . . . We think therefore that the negligence of the plaintiffs in the 
 execution and issuing of the bonds, was not of such a character as to 
 preclude all equitable relief against the present defendant. . . . 
 
 ■'2. Did the first purchaser of the bonds in question, and after- 
 wards the purchaser from him, and finally the defendant at the time 
 of his purchase, have such knowledge of the mistake, either actual or to 
 be imputed, as gives the plaintiffs a right, as against them, to the 
 equitable relief which they seek? . . . We think the only reasonable 
 view of the matter is, that the defendant knew, or had such informa- 
 tion that the law would impute to him knowledge, that the bonds 
 were by mistake issued as twenty year bonds instead of ten-twenty 
 ones. 
 
 "3. Was the mistake one of such a character that it can be cor- 
 rected by a court of equity? It is claimed by the counsel for the de- 
 fendant that the mistake, in such a case, must be mutual, and the 
 cause of the agreement, and numerous authorities are cited in support 
 of the proposition. This rule, within the limits of its proper application, 
 is founded in reason. If a contract is corrected by a court of chancery 
 to make it conform to the intention of one of the parties, it is of course 
 forcing a contract upon the other party which he never intended to 
 make, unless his own intent concurred with that of the other party. 
 
 "But this case is not that of that character nor governed by that 
 rule. A grantor by mistake embraces in his deed a parcel of land 
 •that neither party intended to have conveyed. The grantee sees his 
 mistake, but does not call the attention of the grantor to it, and after- 
 wards claims the parcel thus accidentally conveyed. Or a person offers 
 a reward of $100 for the detection and arrest of a burglar, but by 
 mistake and without his notice it is printed $1,000. A man who knows 
 
No. 542. A. CREATION OF LEGAL ACTS. 581 
 
 of the mistake arrests the burglar and claims the $i,ooo. In each of 
 these cases the error is not mutual, but wholly on the one side. What 
 is there on the other? Not mistake, but fraud. That fraud can never 
 stand for a moment in a court of equity. But suppose the case to be one 
 ■where, instead of actual fraud, there is merely such knowledge, actual 
 or imputed by the law, as makes it inequitable for the purchaser to 
 retain his advantage. The Court will deal as summarily with that 
 inequitable position of the party, as in the other case with his fraud. 
 
 "It is however claimed, on the part of the defendant, that the mis- 
 take must have been one that induced the contract on the part of the 
 purchaser; that is to say, that the purchaser must have taken the 
 bonds for the very reason that they were twenty year bonds and not 
 ten-twenty ones. But it is obvious that the hardship attending the 
 correction of a contract is all the greater where the other party ac- 
 cepted the contract for the reason that he supposed himself to be 
 acquiring what the correction of it deprives him of. But supposing the 
 purchasers of the bonds in question had taken them in entire indiffer- 
 ence as to whether they were twenty year or ten-twenty bonds, and 
 that the defendant was now endeavoring to assert rights under them 
 to which he had before been indifferent, would there be no remedy in 
 equity? Can it be claimed for a moment that equity, which deals with 
 substance and not mere form, which applies reason and not mere arbi- 
 trary rules, would see no substantial difference between the case of a 
 party who, when he accepted the contract, was indifferent with regard 
 to a known mistake and so remained, and one who, at first indifferent, 
 was now trying to take an unjust advantage of the mistake? 
 
 "We conclude, therefore, that there was nothing in the nature of 
 the mistake, or in the relation of the parties to it, that should lead a 
 court of equity to refuse the relief sought." 
 
 PARK BROTHERS & CO. v. BLODGETT & CLAPP CO. (1894). 
 64 Conn. 28, 29 All. 133. 
 
 Torrance, J. : "This is an action brought to recover damages for 
 the breach of a written contract, dated December 14th, 1888. The 
 contract is set out in full in the amended complaint. It is in 
 **■" the form of a written proposal addressed by the plaintiff to the 
 defendant, and is accepted by the defendant in writing upon the face of 
 the contract. Such parts of the contract as appear to be material are 
 here given: 'We propose to supply you with fifteen net tons of tool 
 steel, of good and suitable quality, to be furnished prior to January ist, 
 1890, at' prices set forth in the contract for the qualities of steel named 
 therein. 'Deliveries to be made f. o. b. Pittsburg, and New York 
 freight allowed to Hartford. To be specified for as your wants may 
 
582 PAROL EVIDENCE RULE. No. 542. 
 
 require.' The contract was made at Hartford, by the plaintiff through 
 its agent A. H. Church, and by the defendant through its agent J. B. 
 Clapp. After filing a demurrer and an answer which may now be laid 
 out of the case, the defendant filed an 'answer with demand for refor- 
 mation of contract,' in the first paragraph of which it admitted the 
 execution of said written contract. . . . The present appeal is based 
 upon what occurred during the trial with reference to the reforma- 
 tion of the contract. Upon that hearing the agent of the defendant 
 was a witness, on behalf of the defendant, and was asked to state 'what 
 conversation occurred between him and A. H. Church in making the 
 contract of December 14th, 1888, at and before the execution thereof 
 and relevant thereto.' The plaintiff 'objected to the reception of any 
 parol testimony on the ground that the same was inadmissible to vary 
 or contradict the terms of a written instrument, or to show any other 
 or different contract than that specified in the instrument, or to show 
 anything relevant to the defendant's prayer for its reformation.' The 
 Court overruled the objection and admitted the testimony, and upon 
 such testimony found and adjudged as hereinbefore stated. 
 
 "The case thus presents a single question — whether the evidence 
 objected to was admissible under the circumstances; and this depends 
 upon the further question, which will be first considered, whether the 
 mistake was one which, under the circumstances disclosed by the record, 
 a court of equity will correct. The finding of the Court below is as fol- 
 lows: — 'The actual agreement between the defendant and the plaintiff 
 was that the plaintiff should supply the defendant, prior to January 
 1st, 1890, with such an amount of tool steel, not exceeding fifteen tons, 
 at the defendant's wants during that time might require, and of the 
 kinds and upon the terms stated in said contract, and that the defendant 
 would purchase the same of the plaintiff on said terms. But by the 
 mutual mistake of said Church and said Clapp, acting for the plaintiff 
 and defendant respectively, concerning the legal construction of the 
 written contract of December 14th, 1888, that contract failed to express 
 the actual agreement of the parties; and that said Church and said 
 Clapp both intended to have the said written contract express the actual 
 agreement made by them, and at the time of its execution believed that 
 it did.' No fraud is properly charged, and certainly none is found, 
 and whatever claim to relief the defendant may have must rest wholly 
 on the ground of mistake. 
 
 "The plaintiff claims that the mistake in question is one of 
 law and is of such a nature that it cannot be corrected in a 
 court of equity. That a court of equity under certain circum- 
 stances may reform a written instrument founded on a mistake of 
 fact is not disputed; but the plaintiff strenuously insists that it can- 
 not, or will not, reform an instrument founded upon a mistake like 
 the one here in question which is alleged to be a mistake of law. The 
 distinction between mistakes of law and mistakes of fact is certainly 
 
No. 542. A. CREATION OF LEGAL ACTS. 583 
 
 recognized in the text books and decisions, and to a certain extent is a 
 valid distinction ; but it is not practically so important as it is often rep- 
 resented to be. . . . Under certain circumstances a court of equity will, 
 and under others, it will not reform a writing founded on a mistake 
 of facts; under certain circumstances it will, and under others it will 
 not, reform an instrument founded upon a mistake of law. It is no 
 longer true, if it ever was, that a mistake of law is no ground for relief 
 in any case, as will be seen by the cases hereinafter cited. Whether, 
 then, the mistake now in question be regarded as one of law or one of 
 fact is not of much consequence; the more important question is 
 whether it is such a mistake as a court of equity will correct; and this 
 perhaps can only or at least can best be determined by seeing whether it 
 falls within any of the well recognized classes of cases in which such 
 relief is furnished. . . . 
 
 "The written agreement certainly fails to express the real agree- 
 ment of the parties in a material point; it fails to do so by reason of a 
 mutual mistake, made, as we must assume, innocently and without any 
 such negligence on the part of the defendant as would debar him from 
 the aid of a court of equity; the rights of no third parties have inter- 
 vened; the instrument if corrected will place both parties just where 
 they intended to place themselves in their relations to each other; and 
 if not corrected it gives the plaintiff an inequitable advantage over the 
 defendant. It is said that if by mistake words are inserted in a written 
 contract which the parties did not intend to insert, or omitted which 
 they did not intend to omit, this is a mistake of fact which a court of 
 equity will correct in a proper case. Sibert v. McAvoy, (15 111. 106). 
 If then the oral agreement in the case at bar had been for the sale 
 and purchase of five tons of steel, and in reducing the contract to writ- 
 ing the parties had by an unnoticed mistake inserted 'fifteen tons' in- 
 stead of 'five tons,' this would have been mistake of fact entitling the 
 defendant to the aid of a court of equity. In the case at bar the parties 
 actually agreed upon what may, for brevity, be called a conditional 
 purchase and sale, and upon that only. In reducing the contract to 
 writing they, by an innocent mistake, omitted words which would have 
 expressed the true agreement and used words which express an agreement 
 differing materially from the only one they made. There is perhaps a 
 distinction between the supposed case and the actual case, but it is 
 q'uite shadowy. They differ not at all in their unjust consequences. 
 In both, by an innocent mistake mutually entertained, the vendor ob- 
 tains an unconscionable advantage over the vendee, a result which, 
 was not intended by either. There exists no good substantial reason 
 as it seems to us why relief should be given in the one case and refused 
 in the other, other things being equal. It is hardly necessary to say 
 that in cases like the one at bar, courts of equity ought to move with, 
 great caution. Before an instrument is reformed under such circum- 
 stances, the proof of the mistake and that it really gives an unjust ad- 
 
584 PAROL EVIDENCE RULE. NO. 5 42. 
 
 vantage to one party over the other, ought to be of the most convincing 
 character. . . . 
 
 "Upon principle, then, we think a court of equity may correct a 
 mistake of law in a case like the one at bar, and we also think the 
 very great weight of modern authority is in favor of that conclusion. 
 The case clearly falls within that class of cases where there is an 
 antecedent agreement, and in reducing it to writing, the instrument 
 executed, by reason of the common mistake of the parties as to the 
 legal effect of the words used, fails as to one or more material points, 
 to express their actual agreement. ... If this is so, then clearly he 
 was entitled to the parol evidence which the plaintiff objected to; for 
 in no other way ordinarily can the mistake be shown." 
 
 GARRARD v. FRANKEL (1862). 
 30 Beav. 445. 
 
 The plaintiff, Mr. Garrard, was the owner of the house No. 211 
 Oxford Street, for a long term of years ; it had been let to John Parnell 
 at £230 per annum, which was shown to be its real value. In July, 
 ^*^ i860, this house was to be let, and on the 30th of July, i860, the 
 defendant, Mrs. Frankel, who was then a stranger to the plaintiff, wrote 
 to him asking for the particulars relating to this house and the terms 
 on which the premises were to be let. On the ist of August, i860, 
 the plaintiff wrote to the defendant to the effect that the lowest price 
 required was £240 rent, clear of all taxes, the tenant repaying the in- 
 surance, and that the fixtures might be purchased or not, at the tenant's 
 option, and that, if not purchased, they would be removed. The de- 
 fendant said that she had never received this letter, but the Court 
 thought otherwise. On the 6th of August Mrs. Frankel called at the 
 office of Messrs. Garrard & James respecting the house. The plaintiff 
 was absent, having gone to Paris on the ist of August, where he re- 
 mained until the nth; but she then saw Mr. James his partner. Mr. 
 James, in answer to her further inquiries, informed her that Mr. Gar- 
 rard would not let the premises for less than £240, nor otherwise than on 
 a lease for seven, fourteen or twenty-one years, similar to that granted 
 to the former tenant. She expressed herself satisfied, and said that 
 the plaintiff's immediate determination was necessary, that she held 
 No. I Great Portland Street at a rent of £160 per annum and that the 
 lease was about to expire. > She also said that she rented another 
 house in Oxford Street at £145 per annum, and she referred Mr. James 
 to Mr. Peter Robinson, and Mr. Turrill her landlord. On the 9th of 
 August, i860, the defendant, Mrs. Frankel, wrote to the firm as fol- 
 lows: "Gentlemen — I shall feel extremely obliged if you can give me 
 
No. 543. A. CREATION OF LEGAL ACTS. 585 
 
 an answer respecting the house and shop in Oxford Street tomorrow; 
 as I must give a decisive answer on Saturday next respecting the other 
 house that I am in treaty for." On the 14th of August, i860, Mrs. 
 Frankel called on Mr. Garrard, who had returned from Paris on the 
 previous Saturday; he informed her that he was not altogether satis- 
 fied of her responsibility, and that he was not disposed to let the 
 house to her, unless she was prepared to pay a premium of £125 as a 
 further guarantee for her responsibility, in which case he would reduce 
 the rent from £240 to £230. The defendant, after consulting her 
 friends, agreed to pay a premium, and the inquiries proceeded. The 
 plaintiif, on the 17th of August, then wrote the following letter: 
 "Madam — If you will favor me with a call on Monday between twelve 
 and one, we shall no doubt be able to settle finally about the house in 
 Oxford Street. I can then show you the form of lease granted to the 
 late tenant, and yours would be similar to it. My clerk called on Mr. 
 Turrill yesterday, but he was unwell, his daughter said he would write." 
 On the 20th of August, i860, Mrs. Frankel called on Mr. Garrard, who 
 showed her the draft of the lease to the former tenant ; she then agreed 
 to take a lease in the same form, and they signed the following mem- 
 orandum which was written within the fold of the draft: "The within- 
 named Stephen Garrard, as landlord, agrees to let, and the within- 
 named Elizabeth Jane Frankel, as tenant, agrees to take, the premises 
 within described for twenty-one years from Michaelmas next, at the 
 rent of £230 clear of all taxes, and in all respects on the terms of the 
 within lease. . . ." 
 
 Mr. Garrard afterwards inserted certain words in the draft lease, 
 stating the amount of the premium to be paid, and he inadvertently filled 
 in the blank for the amount of rent to be paid with the figures £130 
 instead of £230. The lease and counterpart were engrossed with this 
 error, and on the 27th August, i860, they were executed without 
 its being discovered. Mr. Garrard did not discover the mistake until 
 just before Christmas Day, i860, on which day the first payment of 
 rent under the lease became due. He, however, wrote to Mrs. Frankel, 
 asking for £57, los. for the quarter's rent, being at the rate of £230 
 per annum. In answer to this, Mrs. Frankel, on the nth January, 
 1861, wrote, insisting that the rent payable ■ under the lease was only 
 £32, I OS. or after the rate of £130 per annum. This led to further cor- 
 respondence, and ultimately, on the 26th day of February, 1861, the 
 plaintiff instituted this suit, praying that the lease of the 27th of 
 August, i860, might be rectified, by substituting the rent of £230 in- 
 stead of the rent of £130, and that the lease might be produced for that 
 purpose, or otherwise, that the lease might be delivered up and can- 
 celled, the plaintiff offering to execute a new lease at the rent of £230 
 to Mrs. Frankel at his own expense. 
 
 The bill also prayed an injunction restraining her from partmg 
 with or incumbering the lease, or doing any act to the Plaintiff's preju- 
 
586 PAROL EVIDENCE RULE. No. 543. 
 
 dice. It appeared, however, that on the 21st of September, i860, Mrs. 
 Frankel had assigned the lease, by way of mortgage, to Messrs. Block & 
 Son, to secure a sum of £150 which she had borrowed of them, and 
 such further sums as, on an account current, should be due to them 
 from her, not exceeding £300. On the 22d of February 1861, Dr. 
 Brunn, who had previously lent Mrs. Frankel £105, paid Messrs. Block 
 & Son £251, 2s. 6d. due to them from her. They thereupon reassigned 
 the lease to her, but, at her request, they handed the lease and mort- 
 gage to Dr. Brunn. The bill was therefore amended, and he wa's 
 made a party to the suit. 
 
 Mr. Selwyn and Mr. Bevir, for the plaintiff, argued that a mistake 
 had been clearly proved, and that the plaintiff was entitled to have 
 the lease reformed so as to make it in accordance with the real contract 
 between the parties, and, secondly, that Dr. Brunn, who had no more 
 than an equitable interest, had no right as against the Plaintiff, whose 
 equitable rights were prior in point of time. Mr. Follett and Mr. King- 
 don, for Mrs. Frankel, argued that there had been no error or mis- 
 take ; that if there had been, it was merely on the part of the Plain- 
 tiff, and that it was now clearly settled that a document could only be 
 reformed where the mistake was mutual. Mr. Bruce, for Dr. Brunn, 
 argued that he was a purchaser for valuable consideration without 
 notice, and though the legal estate was not vested in him, still he stood 
 in the position of Messrs. Block, who had advanced their money and 
 obtained the legal estate, which was now held as trustee for the 
 assignee of their mortgage. That the difficulty had not been occa- 
 sioned by the Plaintiff's own neglect, which he could not set up as 
 against innocent parties. . . . 
 
 The Master of the Rolls ( Sir John Romilly) : "In this case 
 the bill is filed to rectify a mistake, consisting in the insertion in the 
 lease of a house in Oxford Street, granted by the Plaintiff to the De- 
 fendant, of the figures of '130' instead of '230,' as the amount of the an- 
 nual rent to be paid. The object of the bill is to substitute 'two' for 
 'one' in this part of the lease. 
 
 "The first question is one of fact, whether the mistake was really 
 made, and if so, by whom and under what circumstances. That the 
 mistake was really made by the Plaintiff, is, I think, indisputably 
 proved. . . . 
 
 "The next question is also one of fact, it is this: — Did the De- 
 fendant know that this statement of £130 per annum was a mistake? 
 It was certainly not a mistake committed by her, and thereupon it is 
 argued that there must be an end of the case, for that, to enable this 
 Court to interfere to rectify a mistake, the mistake must be mutual. 
 But though, as a general rule, this is correct, it does not apply to every 
 case. The Court will, I apprehend, interfere in cases of mistake, where 
 one party to the transaction, being at the time cognizant of the fact 
 of the error, seeks to take advantage of it. I am therefore of opinion 
 
ITO. 543. A. CREATION OF LEGAL ACTS. 587 
 
 that this question arises : — Did the Defendant bona Me believe that the 
 contract she had entered into was one to take a lease of the premises 
 in question, determinable at her option, at seven, fourteen, or twenty- 
 one years, at £130 per annum rent? .... I am of opinion that the De- 
 fendant must have perceived the discrepancy between the amount of 
 rent which had been previously stated by the Plaintiff, which was the 
 same amount as was specified in the agreement signed by her, written 
 -within the fold of the draft lease, and the amount contained within 
 the body of it. . . . 
 
 "On this state of facts the question of law arises, how a case so 
 circumstanced has to be dealt with. ... I am disposed to believe that 
 the Defendant, when she signed it, knew that the lease within con- 
 tained the figures £130, although she knew that the agreement in the 
 fold was different. My belief is that if they had both been £230, she 
 -would equally have signed the agreement, and would also have exe- 
 cuted the lease; but I do not think that I am entitled to found any 
 decree on such a belief. I doubt therefore whether I can compel De- 
 fendant to be bound by a lease inconsistent with a portion of the agree- 
 ment which she signed, and which, in one view which might be taken 
 of it, might govern the other portion. I am quite clear that I cannot 
 compel the Plaintiff to be bound by the terms of the lease as it stands, 
 or permit the Defendant to derive any advantage from this mistake, 
 and, in that respect, the Plaintiff is in my opinion entitled to relief. 
 
 "I think the proper course to be taken is the following: I shall 
 give the Defendant the option of retaining or rejecting the lease, but 
 if she retains it I shall decree the lease to be reformed by substituting 
 the rent of £230 for £130 per annum. If, however, the Defendant 
 wishes to give up the lease and agreement altogether, I shall permit 
 her so to do, but in that case I shall direct her to pay for the use and 
 occupation of the house, during the time she had possession of it, at 
 the rate of £230 per annum, which was the rent paid by the last tenant, 
 and which I consider to be proved to be the value of it. . . . 
 
 "The next question which arises in this suit is to consider what 
 ought to be done with respect to Dr. Brunn and his claim as mort- 
 gagee of the Defendant's lease. That stands in this way: — ^After the 
 lease had been executed it was assigned by the Defendant to secure 
 a sum of £300 and interest to Messrs. Block, who were wholly igno- 
 rant of any mistake. When the mistake was discovered and the con- 
 test in this suit arose, the Plaintiff applied to Messrs. Block to assign 
 the legal estate to him, and he offered to pay them what was due 
 on their mortgage. Messrs. Block, under the advice of their solicitor, 
 and in my opinion very properly, declined to give any advantage to 
 either side; they undertook not to assign the lease to anyone except 
 the Defendant or the Plaintiff, but that if the Defendant, to whom they 
 had advanced the money, was prepared to repay them, they would 
 reassign the lease to her first; but if not, they would, upon repayment 
 
588 PAROL EVIDENCE RULE. No. 543. 
 
 of the amount due, assign the lease to the Plaintiff. The Defendant 
 induced Dr. Brunn to advance the money to Messrs. Block, and they 
 thereupon reassigned the lease to the Defendant, who gave such se- 
 curity thereon as she could to Dr. Brunn, who had, by that time, 
 notice of the whole transaction, this Court having also interposed by 
 injunction to prevent any fresh dealing with the lease, so as to create 
 new obligations upon it. In this state of things I think that Dr. Brunn 
 stands exactly in the position of Messrs. Block, with the exception 
 that he has not got the legal estate. As regards the Messrs. Block, I 
 am clearly of opinion that they were purchasers for value, with- 
 out notice, to the extent of the amount which they advanced, and, in 
 my opinion, in equity Dr. Brunn stands in their place. I am of opinion, 
 therefore, that the Plaintiff must pay Dr. Brunn the amount due on 
 Messrs. Blocks' mortgage transferred to him, though not directly, from 
 them; and that if the Plaintiff do not repay it. Dr. Brunn must have 
 a charge for this arnount on the house, as against the Plaintiff and 
 his interest therein. I think the same observations also apply to a 
 sum of £105 which Dr. Brunn advanced to the Defendant on the se- 
 curity of the lease before he had any knowledge or any reason to 
 suppose that there was any error in the body of the lease itself; and 
 I also think that Dr. Brunn must be allowed to add his costs of this 
 suit to his security, and that the whole must be a charge on the house 
 and premises in the hands of the Plaintiff if the lease be given up, 
 or upon his interest therein if the lease be reformed. But I am of 
 opinion that, upon payment of this, the Plaintiff is entitled to have 
 inserted in the decree an order against the Defendant to repay the 
 total amount so paid by him to Dr. Brunn ; in addition to which, if the 
 Defendant elects to keep the house with the lease as altered by the 
 introduction of the increased rent, her interest therein will, whatever 
 be its value, be primarily liable for the repayment of such sum."^ 
 
 BARKER v. STERNE (1854). 
 p Exch. 684. 
 
 At the trial, before Pollock, C. B., at the London Sittings, it 
 appeared that Messrs. Seegers, who were commission agents in Lon- 
 don, were in the habit of receiving consignments of goods from 
 '** one Matthes, a merchant residing at Redevitz, in Bavaria. On 
 these occasions it was usual for Matth^ to send to Messrs. Seegers a 
 blank form of a bill of exchange, with his signature as drawer, and 
 they filled it up and got it accepted by the purchaser of the goods. In 
 accordance with that course of dealing, Matthes, at Redevitz, signed, 
 as drawer, a blank form of the bill in question, and sent it to Messrs. 
 
 I — Compare the authorities cited in W., §§ 2417, 2418. 
 
No. 544. A. CREATION OF LEGAL ACTS. 589 
 
 Seegers in a letter advising them of a consignment of goods, and 
 Messrs. Seegers in London filled up the blanks by inserting the date, 
 amount, &c., as stated in the declaration ; and, having got the bill ac- 
 cepted by the defendant, applied it to their own purposes, when it was 
 bona Ude endorsed to the plaintiffs for value. It was submitted, on 
 behalf of the defendant, that, as Messrs. Seegers had only a limited 
 authority to fill up the blank form, in order to obtain payment of the 
 goods consigned to them, this was in effect a bill drawn in London, 
 and therefore required a stamp. The learned Judge overruled the 
 objection, and a verdict was found for the plaintiffs, leave being re- 
 served to the defendant to move to enter a verdict for him. . . . 
 
 Pollock, C. B. : "This was a motion for a new trial, in a case 
 tried before me at Guildhall. It was an action on a bill of exchange, 
 drawn abroad in blank, and filled up in London. Mr. Chambers moved 
 for a new trial, on the ground that, the blank form of the bill having 
 been improperly filled up contrary tO' the direction and intention of the 
 drawer, it was not binding as against him, and that it only became 
 a bill in London, and consequently required a stamp. We are of opin- 
 ion, on the authority of Snaith v. Mingay, that this is not an inland 
 bill, and therefore no stamp is necessary. It seems to us that the 
 mode in which Mr. Chambers presented the objection must fail, for in 
 reality, quoad mankind at large, the authority of a person who holds 
 such a piece of paper with the name of a drawer or an acceptor upon 
 it, must be judged of from the paper itself. If a person in this country 
 puts his name to a blank form of bill, either as drawer or acceptor, 
 it may be filled up with any amount the stamp will bear, and he cannot 
 shelter himself from liability by any private instructions contained in 
 a separate document, of which the rest of the world must necessarily 
 be ignorant. There is a case (Younge v. Grote, 4 Bing. 253) where 
 a customer of a banker, on leaving home, gave to his wife several 
 blank forms of checks, signed by himself, and desired her to fill them up 
 according to the exigency of his business. She filled up one of them 
 so carelessly, that a clerk to whom she delivered it was enabled to 
 alter the amount to a larger sum, in such a way that the bankers could 
 not discover the altei-ation, and they paid it: it was held that the loss 
 must fall on the drawer, as it was caused by his negligence. Now, 
 whether the better ground for supporting that decision is, that the 
 drawer is responsible for his negligence, which has enabled a fraud 
 to be practised, or whether it be considered that, when a person issues 
 a document of that kind, the rest of the world must judge of the au- 
 thority to fill it up by the paper itself, and not by any private instruc- 
 tions, it is unnecessary to inquire. I should prefer putting it on the 
 latter ground. For these reasons we think that, in this case, there 
 ought to be no rule."^ 
 
 2 — Compare the authorities cited in W., I 2419. 
 
590 PAROL EVIDENCE RULE. No. 545. 
 
 BAXENDALE v. BENNETT (1878). 
 L. R. 3 Q. B. D. 535. 
 
 Action commenced on the loth July, 1876, on a bill of exchange, 
 dated the nth of March, 1872, for 50/. drawn by W. Cartwright and 
 accepted by the defendant, and of which the plaintiff was the 
 ^*^ holder, and her interest. At the trial before Lopes, J., with- 
 out a jury, at the Hilary Sittings in Middlesex, the following facts 
 were proved; The bill dated the nth of March, 1872, on which the 
 action was brought, purported to be drawn by one W. Cartwright on 
 the defendant, payable to order at three months' date. It was indorsed 
 in blank by Cartwright, and also by one H. T. Cameron. The plain- 
 tiff received the bill from Cameron on the 3rd of June, 1872, and was 
 the bona Ude holder of it, without notice of fraud, and for a valuable 
 consideration. One J. F. Holmes had asked the defendant for his 
 acceptance to an accommodation bill, and the defendant had written 
 his name across a paper which had an impressed bill stamp on it, and 
 had given it to Holmes to fill in his name, and then to use it for the 
 purpose of raising money on it. Afterwards Holmes, not requiring 
 accommodation, returned the paper to the defendant in the same state 
 in which he had received it from him. The defendant then put it into 
 a drawer, which was not locked, of his writing table at his chambers, 
 to which his clerk, laundress, and other persons coming there had 
 access. He had never authorized Cartwright or any person to fill 
 ■up the paper with a drawer's name, and he believed that it must have 
 been stolen from his chambers. 
 
 On these facts the learned judge found that the bill was stolen 
 from the defendant's chambers, and the name of the drawer after- 
 wards added without the defendant's authority; but that the defend- 
 ant had so negligently dealt with the acceptance as to have facilitated 
 the theft; he therefore ruled upon the authority of Young v. Grote 
 (4 Bing. 253), and Ingham v. Primrose (7 C. B. (N. S.) 82), that 
 the defendant was liable, and directed judgment to be entered for the 
 plaintiff for 50/. and costs. . . . 
 
 Beam WELL, L. J.: "I am of opinion that this judgment cannot 
 be supported. The defendant is sued on a bill alleged to have been 
 drawn by W. Cartwright on and accepted by him. In very truth he never 
 accepted such a bill; and if he is to be held liable, it can only be on 
 the ground that he is estopped to deny that he did so accept such a bill. 
 Estoppels are odious, and the doctrine should never be applied without 
 a necessity for it. It never can be applied except in cases where the 
 person against whom it is used has so conducted himself, either in 
 what he has said or done, or failed to say or do, that he would, unless 
 estopped, be saying something contrary to his former conduct in what 
 he had said or done, or failed to say or do. Is that the case here? 
 
No. 545. A. CREATION OF LEGAL ACTS. 591 
 
 Let us examine the) facts. The defendant drew a bill (or what would 
 be a bill had it had the drawer's name) without a drawer's name, 
 addressed to himself, and then wrote what was in terms an acceptance 
 across it. In this condition, it, not being a bill, was stolen from him, 
 filled up with a drawer's name, and transferred to the plaintiff, a bona 
 fide holder for value. It may be that no crime was committed in the 
 filling in of the drawer's name, for the thief may have taken it to a 
 person telling him it was given by the defendant to the thief with 
 authority to get it filled in with a drawer's name by any person he, 
 the thief, pleased. This may have been believed and the drawer's name 
 bona ade put by such person. I do not say such person could have 
 recovered on the bill; I am of opinion he could not; but what I wish 
 to point out is that the bill might be made a complete instrument 
 without the commission of any crime in the completion. But a crime 
 was committed in this case by the stealing of the document, and with- 
 out that crime the bill could not have been complete, and no one could 
 have been defrauded. Why is not the defendant at liberty to show 
 this? Why is he estopped? What has he said or done contrary to 
 the truth, or which should cause any one to believe the truth to be 
 other than it is? Is it not a rule that every one has a right to sup- 
 pose that a crime will not be committed, and to act on that belief? 
 Where is the limit if the defendant is estopped here? Suppose he 
 had signed a blank cheque, with no payee, or date, or amount, and it 
 was stolen, would he be liable or accountable, not merely to his banker 
 the drawee, but to a holder? If so, suppose there was no stamp law, 
 and a man simply wrote his name, and the paper was stolen from him, 
 and somebody put a form of a cheque or bill to the signature, would 
 the signer be liable? I cannot think so. But what about the authori- 
 ties? It must be admitted that the cases of Young v. Grote and Ing- 
 ham V. Primrose go a long way to justify this judgment; but in all 
 those cases, and in all the others where the alleged maker or acceptor has 
 been held liable, he has voluntarily parted with the instrument; it 
 has not been got from him by the commission of a crime. This, un- 
 doubtedly, is a distinction, and a real distinction. The defendant here 
 has not voluntarily put into any one's hands the means, or part of the 
 means, for committing a crime. But it is said that he has done so 
 through negligence. I confess I think he has been negligent; that is 
 to say, I think if he had had this paper from a third person, as 
 a bailee bound to keep it with ordinary care, he would not have done 
 so. But then this negligence is not the proximate or effective cause 
 of the fraud. A crime was necessary for its completion. . . ." 
 
 Brett, L. J.: "In this case I agree with the conclusion at which 
 toy Brother Bramwell has arrived, but not with his reasons. . . . 
 It seems to me that the defendant never authorized the bill to be 
 filled in with a drawer's name, and he cannot be sued on it. . . . 
 In this case it is true that the defendant after writing his name across 
 
592 PAROL EVIDENCE RULE. Ko. 545. 
 
 the stamped paper sent it to another person to be used. When he sent 
 it to that person, if he had filled it in to any amount that the stamp 
 would cover the defendant would be liable, because he sent it with the 
 intention that it should be acted upon; but it was sent back to the 
 defendant, and he was then in the same condition as if he had never 
 issued the acceptance. The case is this: the defendant accepts a bill 
 and puts it into his drawer, it is as if he had never issued it with the 
 intention that it should be filled up; it is as if after having accepted 
 the bill he had left it in his room for a moment and a thief came in 
 and stole it. He has never intended that the bill should be filled up 
 by anybody and no person was his agent to fill it up. Then it has been 
 said that the defendant is liable because he has been negligent; but 
 was the defendant negligent? . . . He put the bill into a drawer in 
 his own room; to say that was a want of due care is impossible; it 
 was not negligence for two reasons, first, he did not owe any duty to 
 any one, and, secondly, he did not act otherwise than in a way which 
 an ordinary careful man would act. ... In the present case I think 
 there was no estoppel, no ratification, and no negUgence, and that the 
 defendant is entitled to our judgment." 
 
 Baggallay, L. J., concurred that the judgment ought to be entered 
 for the defendant. 
 
 HUBBARD V. GREELEY (1892). 
 84 Me. 340, 24 Atl. 799. 
 
 Action by Joshua G. Hubbard against Everard H. Greeley and 
 others. Judgment for plaintiff. 
 
 Walton, J. : "Whether the grantee named in a deed de- 
 °* livered as an escrow, who has wrongfully obtained it and put 
 it on record, can convey a good title to a bona Ade purchaser, is a 
 question in relation to which the authorities are in conflict. In Blight 
 V. Schenck, 10 Pa. St. 285, the Court held, in a full and well-reasoned 
 opinion, that the title of a bona fide purchaser could not be defeated 
 by proof that one of the deeds through which he claimed title was 
 a wrongfully obtained and a wrongfully recorded escrow. The Court 
 rested its decision on the fact that the custodian of an escrow is the 
 agent of the grantor as well as the grantee, and, if one of two inno- 
 cent persons must suffer by the wrongful act of the agent, he who 
 employs an unfaithful agent, and puts it in his power to do the act, 
 must bear the loss; that the agent has the power to deliver the deed, 
 and, if he delivers it contrary to his instructions, he will be answer- 
 able to his principal; and it is therefore reasonable that the latter, 
 and not the innocent purchaser, should bear the loss. In Everts v. 
 Agnes, 4 Wis. 343, the contrary was held. But in the latter case the 
 Court appears to have acted in ignorance of the decision in the 
 former case, and in ignorance of the equitable doctrine upon 
 
No. 546. A. .CREATION OF LEGAL ACTS. 593 
 
 which it rests, although the former decision was made six years before 
 the latter. This, as it seems to us, was an unfortunate oversight; 
 for the former decision is supported by reasoning so strong, and, as 
 it seems to us, so satisfactory, we cannot resist the conviction that if 
 the attention of the Court had been called to it, and the principles on 
 which it rests, a different conclusion would have been reached; and 
 the subsequent decisions, which have followed the lead of that, would 
 have no existence. 
 
 "But be this as it may, the authorities all agree that a deed cannot 
 be delivered directly to the grantee himself, or to his agent or attor- 
 ney, to be held as an escrow; that, if such a delivery is made, the 
 law will give effect to the deed immediately, and according to its terms, 
 divested of all oral conditions. The reason is obvious. An escrow 
 is a deed delivered to a stranger, to be delivered by him to the grantee 
 upon the performance of some condition, or the happening of some 
 contingency, and the deed takes effect only upon the second delivery. 
 Till then, the title remains in the grantor. And if the delivery is in 
 the first instance directly to the grantee, and he retains the possession 
 of it, there can be no second delivery, and the deed must take effect 
 on accotmt of the first delivery, or it can never take effect at all. And 
 if it takes effect at all, it must be according to its written terms. Oral 
 conditions cannot be annexed to it. It will therefore be seen that 
 a delivery to the grantee himself is utterly inconsistent with the idea of 
 an escrow. And it is perfectly well settled, by all the authorities, 
 ancient and modern, that an attempt to thus deliver a deed as an 
 escrow cannot be successful; that in all cases where such deliveries 
 are made the deeds take effect immediately and according to their 
 terms, divested of all oral conditions. And it is equally well settled 
 that, if the delivery is to one who is acting at the time as an agent 
 or attorney of the grantee, the effect is the same. . . . 
 
 "The principal contention in the present case is whether one of 
 the deeds through which the defendants have derived their title was 
 legally delivered. The deed is from George E. Seavey and Nathaniel 
 H. Clark to Thomas Boyd and Robert W. Boyd. It is dated January 
 26, 1878, was acknowledged the same day, and recorded July 15, 1878. 
 The plaintiff claims that this deed was delivered as an escrow, and, 
 although acknowledged and recorded, never became operative. Upon 
 the proofs in the case, we do not think such an attack upon the de- 
 fendants' title is permissible. The proof is that the deed was made 
 and accepted in part payment of a debt owing from the grantors to 
 the grantees, and that it was in fact delivered to one G. C. Bartlette, 
 an attorney at law, who had been employed by the grantees to col- 
 lect the debt; that Bartlette afterwards sent the deed by mail to the 
 grantees, and that they caused it to be recorded; and that, at the time 
 of the defendant's purchase, the deed had been on record for more 
 than eight years, its validity apparently uncontested and unchallenged. 
 
594 PAROL EVIDENCE RULE. No. 546. 
 
 And it is admitted that the defendants are innocent purchasers for value, 
 and, at the time of their purchase, had no notice of the condition of 
 the title other than that disclosed by the record. Under these cir- 
 cumstances, and for the reasons already given, we think the plaintiff 
 is estopped to deny that the deed was legally delivered. We rest our 
 decision upon the ground that the deed was, in fact, delivered to the 
 grantees' attorney as such, and that such a delivery is equivalent to a 
 delivery to the grantee himself ; and that, when sucH a delivery is made, 
 it is not competent for the grantor, or those claiming under him by 
 a subsequent conveyance, to show by oral evidence that a condition 
 was annexed to the delivery, for the nonperformance of which the 
 deed never became operative. It seems to us that to hold otherwise 
 would render all deeds of little value as evidence of title."* 
 
 GUARDHOUSE v. BLACKBURN (1866). 
 L. R. I P. & D. lop. 
 
 The plaintiffs were residuary legatees under a will of Mrs. Hannah 
 
 Jameson, who died on August 23, 1863, leaving a will dated May 30, 
 
 1851, and a codicil dated April 13, 1852. The defendants were 
 
 ^*' the executors. The will charged the testatrix' three estates 
 
 with legacies to the amount of $1,300. 
 
 The plaintiffs admitted the due execution of the will and codicil, 
 and the only question raised by them was as to whether the words 
 "therein and," at the end of the codicil, were entitled to probate. By 
 their plea they denied that the codicil, as executed, expressed the 
 wishes and intentions of the deceased; and alleged that she, having 
 a mind to alter her will, sent for William Carrick, her solicitor, and 
 gave him instructions for a codicil, which he reduced into writing, 
 and which instructions were pleaded; which, after giving and revok- 
 ing the legacies mentioned in the codicil as executed, concluded, "And 
 I charge all the said legacies on my personal estate." That the said 
 William Carrick, intending to prepare the said codicil for execution, 
 and to make a few verbal alterations only, wrote out the paper pro- 
 
 3 — Compare the following statements; Bennettj J., in Smith v. South Royal- 
 Parker, C. J., in Somes v. Brewer, 2 ton Bank, 32 Vt. 341 : "The deed not 
 Pick. 184. 191 (1824): "Between the having been delivered, it was a nullity 
 grantor and the grantee in such cases, and void, or, more properly speaking, 
 the technical difference between *void' never existed; . . . there is a radical dis- 
 and 'voidable' is wholly immaterial. What- tinction, as it respects the rights of a 
 ever may be avoided may in good sense, bona Ude purchaser or assignee without 
 to this purpose, be called void. . . . But notice, between a void and a voidable 
 in regard to the consequences to third instrument: ... let the principle be as 
 persons the distinction is highly important, it may in regard to commercial paper, 
 because nothing can be founded upon a no question can be made as to a void 
 deed which is absolutely void; whereas deed." 
 
 from those which are only voidable fair Compare the authorities cited in W.». 
 
 titles may flow." § 2420, and No. 551, post. 
 
No. 547. A. CREATION OF LEGAL ACTS. 595 
 
 pounded, but that he inadvertently, or by mistake, and without any 
 instructions whatever to that effect from the deceased, wrote the 
 words, "And I direct all the legacies therein and herein given (and 
 not revoked) to be paid out of my personal estate," in lieu of "and 
 I charge all the said legacies on my personal estate." That the effect 
 of the said words, "therein and," which had the effect of discharging 
 the estate of Scales of legacies to the amount of £500, and the estate 
 of Stainton of the payment of legacies to the amount of £800, was 
 not observed by the said William Carrick, nor by the deceased, when 
 she executed the codicil, and that the said paper writing, containing 
 the words "therein and," was not the codicil of the said deceased. 
 William Carrick said in examination: He took the instructions from 
 the testatrix by word of mouth, at her residence, and wrote them down 
 in her presence on the draft. The draft was intended to be copied for 
 execution. From the draft he prepared in her presence a copy for 
 execution for her, varying in a few particulars from the draft, but 
 not in substance, until he came to the words in dispute. He read over - 
 the draft to her, and asked if it was as she intended it. She expressed 
 herself satisfied with it. He read the copy over to her, so that she 
 could understand it. She said nothing, but proceeded to execute it. 
 He retained the codicil in his custody until the deceased's death. She 
 gave him no instructions to discharge the real estates of Scales and 
 Stainton from the legacies of £1,300; and he had no instructions from 
 her to insert the words "therein and." He inserted them by inad- 
 vertence. Her attention was not particularly directed to them, and his 
 attention was first directed to them after her death. 
 
 Sir J. P. Wilde: "The plaintiffs have cited the defendants to 
 bring in the probate of the will and codicil of Mrs. Hannah Jameson, 
 that it may be cancelled. The defendants have propounded these papers 
 for probate; and the plaintiffs contend that the words 'therein and' 
 ought to be expunged from the codicil before probate is granted thereof. 
 The effect of these words, which undoubtedly appear in the codicil, 
 and were there, it is admitted, when it was executed, is to discharge 
 certain portions of the real estate from pecuniary legacies of con- 
 siderable amount, with which they were charged by the will. The 
 ground upon which the Court is asked to expunge them is, that they 
 were inserted by the attorney who drew the codicil by mistake, and 
 without instructions. This is proven to be the fact (if the evidence 
 is admissible, and can be relied upon) by the oath of the attorney, and 
 by a paper which he swears to have been the rough draft of the codicil 
 made by him in the presence of the testatrix, and from her verbal 
 directions. ... I must premise that the Wills Act has worked a great 
 change in the old testamentary law, as administered by the Ecclesiasti- 
 cal Courts on this head. Under that law, a testamentary paper needed 
 not to have been signed, provided it was in the testator's writing; 
 and all papers of a testamentary purport, if in his writing, commanded 
 
596 PAROL EVIDENCE RULE. No. 547. 
 
 the equal attention of the court, save so far as one, from its date or 
 form, might be manifestly intended to supersede of revoke another, as 
 a will superseding instructions, or a subsequent will revoking a former. 
 . . . But the words of the Wills Act, 'No will shall be valid' unless 
 executed in a certain manner, obviously exclude the probate of un- 
 executed instructions altogether, and have rendered it no longer pos- 
 sible to the Court of Probate to treat them as part of a will. . . . 
 "But then comes the question, if the Court cannot now, as it could 
 before the statute, give effect to any provision omitted by mistake 
 from the will, does it still retain the power to strike out any portion 
 of the contents of a duly executed paper on the ground that, although 
 such portion formed part of the paper when executed by the testator, 
 it was inserted or retained by mistake or inadvertence? This is what 
 is asked on the present occasion. Against this being done, it was 
 strongly argued that the court has no such power. The argument was 
 put on several grounds, and, amongst others, upon the ground that 
 parol evidence was inadmissible upon the question. . . . The truth is, 
 that the rules excluding parol evidence have no place in any inquiry 
 in which the court has not got before it some ascertained paper beyond 
 question binding and of full effect. Nor indeed are these rules pressed 
 in the courts either of law or equity beyond this mark. For if the 
 written document is alleged to have been signed under condition that 
 it should not operate except in certain events, parol evidence has been 
 admitted at law to prove such condition and the breach of it: see Pym 
 V. Campbell, 6 E. & B. 370. Or if (going further still) some plain 
 and palpable error has crept into the written document, equity for- 
 merly, and the courts of common law now, sanction the admission of 
 evidence to expose the error: see the case of Wake v. Harrop, 6 H. 
 & N. 768. . . . Supposing, then, parol evidence to be admissible in 
 such a case as the present, the question recurs, to what extent is it 
 still open to the court since the statute, to act upon such evidence, 
 for the purpose of rejecting the whole or expunging any portion of 
 the written testament to which the testator has duly affixed his name? 
 . . . After much consideration the following propositions commend 
 themselves to the Court as rules which, since the statute, ought to 
 govern its action in respect of a duly executed paper: First, that be- 
 fore a paper so executed is entitled to probate, the court must be 
 satisfied that the testator knew and approved of the contents at the 
 time he signed it. Secondly, that except in certain cases where sus- 
 picion attaches to the document, the fact of the testator's execution 
 is sufficient proof that he knew and approved the contents. Thirdly, 
 that although the testator knew and approved the contents, the paper 
 may still be rejected, on proof establishing, beyond all possibility of 
 mistake, that he did not intend the paper to operate as a will. Fourthly, 
 that although the testator did not know and approve the contents, the 
 paper may be refused probate, if it be proved that any fraud has been 
 
No. 548. A. CREATION OF LEGAL ACTS. 597 
 
 purposely practised on the testator in obtaining his execution thereof. 
 Fifthly, that, subject to this last preceding proposition, the fact that 
 the will has been duly read over to a capable testator on the occasion 
 of its execution, or that its contents have been brought to his notice 
 in any other way, should, when coupled with his execution thereof, 
 be held conclusive evidence that he approved as well as he knew the 
 contents thereof. Sixthly, that the above rules apply equally to a por- 
 tion of the will as to the whole. . . . 
 
 ' "It remains to say a few words on the fifth [proposition]. It is 
 here that the right to derogate from the force of an executed paper 
 approaches and receives its limit. And it is obvious enough, that if 
 the court should allow itself to pass beyond proof that the contents 
 of any such paper were read or otherwise made known to the testator, 
 and suffer an inquiry by the oath of the attorney or others as to what 
 the testator really wished or intended, the authenticity of a will would 
 no longer repose on the ceremony of execution exacted by the statute, 
 but would be set at large in the wide field of parol conflict, and con- 
 fided to the mercies of memory. The security intended by the statute 
 ■would thus perish at the hands of the court. ... In the present case, 
 the codicil was proved to have been read over to the testator before 
 the execution thereof; she duly executed the same; and the Court 
 conceives it to be beyond its functions or powers to substitute the oath 
 of the attorney who prepared it, fortified by his notes of the testator's 
 instructions, for the written provisions contained in a paper so exe- 
 cuted. The probate will, therefore, be delivered out to the olaintiffs in 
 its present form."^ 
 
 3. Voidable Acts. 
 
 STATE V. CASS (1889). 
 52 N. J. L. 77. 
 
 Certiorari upon a judgment for the plaintiff Catherine Cass, in 
 an action against S. Cummings to recover $125, the price paid to him 
 
 for a horse, sold on fraudulent representations as to his speed. 
 
 Mr. Cass, in the presence of his wife, the plaintiff, stated to 
 the defendant that they desired a horse that could make the distance 
 ■between Rockland and Orange Valley, between seven and eight miles, 
 in one hour or one and a half hours, and stated that if the horse could 
 Tiot do that they didn't want to buy him; to which the defendant re- 
 plied that the horse could easily do that. There was evidence that 
 the horse was not able to travel seven or eight miles in one hour or 
 in one hour and a half, and was not fit for the purpose for which he 
 Tiad been bought. It appeared on the cross-examination of the plaintifif 
 that at the time of the sale a written warranty of the horse had been 
 given in the following form: "Newark, April 6th, 1887. To one 
 
 I — Compare the authorities cited in W., 5 2421. 
 
598 PAROL EVIDENCE RULE. No. 548.. 
 
 gray horse Charley, which I warrant to be sound and kind with the. 
 exception of straining of muscle of left hind leg." The counsel for 
 defendant thereupon moved that all evidence as to representations made 
 by the defendant, other than those contained in the written warranty, 
 be stricken out, on the ground that the agreement of the parties having 
 been reduced to writing, such writing could not be varied or enlarged 
 by parol evidence. The Court denied the 'motion, and allowed an 
 exception. 
 
 Reed, J.: "[The parol evidence rule] is not infringed by the ad- 
 mission of parol testimony which is not intended as a substitution for 
 or an addition to a written contract, but which goes to show that the 
 instrument is void or voidable, and that it never had any legal exist- 
 ence or binding force, either by reason of fraud, or for want of due 
 execution and delivery, or for the illegality of the subject-matter of 
 the contract. Nor is the admission of parol evidence for the purpose 
 of avoiding a written contract on the ground of fraud, confined to such 
 testimony as goes to show that a party was lured to make a contract 
 other than that intended, as by the substitution of one contract for 
 another by trickery, or by misreading a contract to an illiterate per- 
 son. Parol testimony may be admitted to show that the execution of 
 a written contract was brought about by a fraudulent representation. 
 . . . The elements essential to constitute such fraudulent representa- 
 tion will be considered later, and it is now necessary only to remark 
 that such evidence as will lay a foundation for an action of deceit or 
 a ground for the recission of the contract, is always receivable, al- 
 though it consists of oral representations. This point was strenuously 
 denied in the arguments submitted by the counsel for the defendant. 
 His contention was, that fraud in the execution of the instrument 
 could be shown, but that oral representations going to a failure of con- 
 sideration only could not. The seeming strength of his contention lay 
 in the likeness between the written and the oral facts in the present 
 case, both concerning the quality of the animal sold. The written war- 
 ranty applied to the soundness and kindness of the horse, and the oral 
 testimony to the speed of the animal. The danger of permitting parol 
 declarations to be proved, which were so nearly related to the sub- 
 ject-matter of the written warranty, was strongly pressed as an evil 
 which the rule of evidence already stated seemed especially designed 
 to prevent. But the distinction between such representations as add 
 to the contract and such as avoid the contract, because of their fraudu- 
 lent character, is too firmly established in our jurisprudence to be now 
 shaken. As an additional warranty, that is, an addition to the con- 
 tract, the present representations were clearly inadmissible. So soon, 
 however, as they displayed such features as went to show that through 
 them the contract had been fraudulently induced, and so was unen- 
 forceable for that reason, at the election of the defrauded party, the 
 rule excluding parol testimony to enlarge a written contract became 
 
No. 549. A. CREATION OF LEGAL ACTS. 599 
 
 inoperative. It is of course obvious, that the fact that there was a 
 written warranty in respect to the soundness and kindness of the animal 
 would be a forcible argument that no other representations as to qual- 
 ity were made. The existence of the written warranty would be use- 
 ful in determining the probability of the truth of the counter state- 
 ments of the parties as to the existence or non-existence of the parol 
 declaration. But when the fraudulent affirmations are once proven 
 to exist, the written contract becomes unimportant. This seems to 
 be an elementary principle of the law of evidence. The right to prove 
 fraud, in whatever shape it may exist, to avoid written contracts, has 
 been so uniformly recognized that it can hardly be said to have been 
 the subject of serious judicial discussion. ... I conclude, therefore, 
 that if the evidence established fraudulent conduct on the part of the 
 defendant, the testimony was properly admitted." 
 
 NEWTON V. TOLLES (1889). 
 66 N. H. 136, ip AH. iop2. 
 
 Bill in equity, filed October 20, 1886, for the recission of a contract 
 for the purchase of a farm and other property, and for the return of 
 money paid as a part of the purchase-money. Facts found by 
 *" the Court. The defendant, Sophia A. Tolles, employed R., a 
 real estate agent in Nashua, to sell her farm. In May, 1886, Newton, 
 seeking to buy a farm, applied to R., who informed him of the Tolles 
 farm, told him it contained two hundred acres, took him to see it, 
 and there pointed out to him such of the corners and boundaries as 
 he knew; but he did not know, or undertake to point out, all of them. 
 Afterwards R., as agent of Tolles, and Newton executed an agreement 
 by which Tolles agreed to sell, and Newton to buy, the "Tolles farm'' 
 for $5,400, to be paid, $200 on the execution of the agreement, $1,000 
 on the delivery, on or before June i, 1886, of a bond for a deed, 
 $1,000 on or before July 10, 1886, and $3,200 on the delivery, 
 on or before October 20, 1886, of a good and sufficient deed. "Said 
 Newton to have all the stock, tools, hay, grain, etc." On the margin 
 of the agreement, "Farm contains about 200 acres" was written. New- 
 ton paid $200 May 15. Tolles executed and delivered to Newton a 
 bond, conditioned to convey to him "a certain lot or parcel of land situ- 
 ated in Nashua," and particularly described by metes and bounds, 
 meaning and intending to convey all the homestead farm, containing 
 about two hundred acres, as by deed of heirs of Horace C. Tolles to 
 me, and other land and right in said homestead farm," upon Newton's 
 payment of $1,000 on the delivery of the bond, $1,000 on or before 
 
 I — Compare the authorities cited in W., § 2423 ; and also the doctrine of No. 560, 
 post. 
 
600 PAROL EVIDENCE RULE. No. 549. 
 
 July 10, i886, and $3,200 on the delivery, on or before October 20, 
 1886, of a good and sufficient deed. . . . 
 
 Prior to 1879 the Tolles farm comprised about two hundred and 
 three acres, of which the defendant and her husband owned a part 
 in common, and each a part in severalty. In that year the heirs of 
 Horace C, then deceased, conveyed a parcel of about twenty-five acres 
 to Xenophon Tolles, and all their interest in the rest of the farm to 
 the defendant. In January, 1886, the defendant sold about eighteen 
 acres to C, who sold to Roby. A parcel of about twenty-five acres, 
 called the "Salmon Brook meadow," was half a mile distant from and 
 had no connection with the rest of the farm except in its use as a 
 part of it. These parcels were not shown to Newton by R., and are 
 not covered by the particular description given in the bond. Newton, 
 at the time of the bargain, did not understand that they were included 
 in his purchase; but he understood he was buying the Tolles farm, 
 and that it contained two hundred acres. The defendant did not in- 
 tend to convey, nor understand that she agreed to convey, the three 
 parcels, or any one of them; but she understood and believed that the 
 farm as described in the bond contained about two hundred acres. It 
 in fact contains only one hundred and thirty-five acres. 
 
 In June, 1886, Newton discovered that Tolles owned the Salmon 
 Brook meadow ,and learned of its connection with the farm. He 
 thereupon claimed possession of it, and that it was included in the 
 bargain, but his claim was denied. He refused to pay the installment 
 due July 10, and August 21 Tolles brought a suit at law to recover it, 
 which is the second of the above named actions. About the first of 
 August, Newton found, by a survey, that the farm as described in the 
 bond contains only one hundred and thirty-five acres. October 20, 
 1886, Tolles tendered to Newton a warranty deed of the premises of 
 which he is in possession, and demanded payment of the balance of 
 the purchase-money. Newton refused to accept the deed, and on the 
 same day filed his bill, in which he offers to restore the real and per- 
 sonal property to the defendant, give up and cancel the bond, and to 
 account for the rents and profits while he has been in possession. . . . 
 
 Carpenter, J.: "There was a mutual mistake in the quantity of 
 land. The defendant understood she was selling, and the plaintiff 
 that he was buying, ar farm of two hundred acres. It in fact con- 
 tains only one hundred and thirty-five acres. The defendant, believ- 
 ing that the farm contained two hundred acres, informed the plaintiff 
 that it did contain that number. The plaintiff relied on her state- 
 ment. Under the influence of the error common to both parties the 
 transaction was consummated. The mistake was one of fact, in a 
 material point affecting the value of the property. Its prejudicial 
 consequences to the plaintiff are the same as if the defendant's state- 
 ment had been designedly fraudulent. ... A material mistake in the 
 quantity does not, in its effect upon the equitable rights of the parties. 
 
No. 550. A. CREATION OF LEGAL ACTS. 601 
 
 differ from a like mistake in the character, situation, or title of the 
 bargained property. It is equivalent to a mistake in the existence of 
 a material part of the subject of the contract. The case is as if, before 
 the contract was executed and without the knowledge of either party, 
 a parcel containing sixty-five acres of the two hundred contracted for 
 had sunk in the sea. The error is as injurious to the plaintiff as if 
 two hundred acres were comprised in the stated boundaries and the de- 
 fendant had no title to a parcel of sixty-five acres, or as if she had 
 title to only one hundred and thirty-five two-hundredths of the whole 
 in common with a stranger. The defendant could not sustain a bill 
 to compel a specific performance of the contract by the plaintiff, be- 
 cause it would be inequitable. The party against whom a contract, 
 made under a mutual mistake of material facts, will not be specifically 
 enforced, is in general entitled to rescind. If there are exceptions to 
 the rule, this case does not fall within them. It is inequitable that the 
 defendant, by reason of her negligent and erroneous, though not 
 fraudulent, representation, should make a profit of the sum at which 
 the parties valued sixty-five acres of land, and that the plaintiff with- 
 out fault on his part should lose that sum. Equity will prevent such a 
 result by rescinding the contract or decreeing a specific performance 
 with compensation in behalf of the injured party, at his election, and 
 by refusing specific performance on the application of the other party." 
 
 FAIRBANKS v. SNOW (i88;). 
 145 Mass. 153, 13 N. E. 596. 
 
 Holmes, J.: "This is an action upon a promissory note made by 
 the defendant and her husband to the order of the plaintiff. The de- 
 fendant alleges that her signature was obtained by duress and 
 """ threats upon the part of her husband. The judge below found 
 for the plaintiff, on the ground, it would rather seem, that, whether 
 there was duress or not, the defendant had ratified the note, which 
 there seems to have been evidence tending to prove. But as this may 
 not be quite clear, we proceed to consider the only exception taken by 
 the defendant. The judge refused to rule that, if the defendant signed 
 the note under duress, it, was immaterial whether the plaintiff knew, 
 when he received the note, that it was so signed. The exception is 
 to this refusal. 
 
 "No doubt, if the defendant's hand had been forcibly taken and 
 compelled to hold the pen and write her name, and the note had been 
 carried off and delivered, the signature and delivery would not have 
 been her acts; and if the signature and delivery had not been her 
 acts, for whatever reason, no contract would have been made, whether 
 the plaintiff knew the facts or not. There sometimes still is shown 
 an inclination to put all cases of duress upon this ground. Barry v. 
 
602 PAROL EVIDENCE RULE. No. 550. 
 
 Equitable Life Assurance Society (59 N. Y. 587^ 591). But duress, 
 like fraud, rarely, if ever, becomes material as such, except on the 
 footing that a contract or conveyance has been made which the party 
 wishes to avoid. It is well settled that where, as usual, the so-called 
 duress consists only of threats, the contract is only voidable. . . . 
 This rule necessarily excludes from the common law the often recur- 
 ring notion just referred to, and much debated by the civilians, that 
 an act done under compulsion is not an act in a legal sense. Tamen 
 coactus volui: D. 4. 2. 21, § 5 (see i Windscheid, Pandekten, § 80). 
 
 "Again, the ground upon which a contract is voidable for duress 
 is the same as in the case of fraud; and is, that, whether it springs 
 from a fear or belief, the party has been subjected to an improper 
 motive for action. But if duress and fraud are so far alike, there 
 seems to be no sufficient reason why the limits of their operation should 
 be different. A party to a contract has no concern with the motives 
 of the other party for making it, if he neither knows them nor is 
 responsible for their existence. It is plain that the unknown fraud of 
 a stranger would not prevent the plaintiff from holding the defendant. 
 . . . The authorities with regard to duress, however, are not quite 
 so clear. It is said in Thoroughgood's case, 2 Rep. 9, that 'if a 
 stranger menace A. to make a deed to B., A. shall avoid the deed 
 which he made by such threats, as well as if B. himself had threatened 
 him, as it is adjudged 45 E. 3. 6.' . . . But in Y. B. 43 E. III. 6, pi. 15, 
 which we suppose to be the case referred to, it was alleged that the 
 defendant was imprisoned by the procurement of the plaintiff. And 
 we know of no distinct adjudication of binding authority that mere 
 threats by a stranger, made without knowledge or privity of the party, 
 are good ground for avoiding a contract induced by them. . . . On 
 the case as it presented to us, we are of opinion that the ruling re- 
 quested was wrong upon principle and authority." 
 
 Nature of Voidable Acts; Motive, as the Ground of Voida- 
 bility.^ "The voidness of an act (or, more correctly, of conduct 
 which has never become a legal act) is seen to be a quality 
 purely relative, i. e. an instrument may be void, as against 
 the grantee or payee, yet valid as against the indorsee or the grantee's 
 grantee. It may even be valid as against one of two grantees, though 
 void as against the other, or valid for one clause and void for the 
 next, — consequences thoroughly accepted in the modern judicial rul- 
 ings. The conception, so often met with, that voidness, when con- 
 cealed for one person, necessarily involves voidness in the absolute 
 sense, i. e. for every other person,^ is therefore unfounded and un- 
 practical, since the test of reasonable consequences will differ for 
 different persons affected by the conduct. 
 
 I — Quoted from W., \\ 2413, 2423, 2 — ^As seen in the quotations in the 
 
 note to No. 546, ante. 
 
No. 551. A. CREATION OF LEGAL ACTS. 603 
 
 "As a part of the same erroneous conception, the relative quality 
 of an act, as valid for one person while invalid for another, has been 
 associated exclusively with the term voidable. But this is the con- 
 founding of two separate ideas in the same term. A voidable act is 
 one which may be annulled at the actor's option, but is valid till 
 annulled; while a void act is of itself null, and requires no further 
 act exercising an option, — the practical differences being, first, that 
 the voidable act remains valid if the option is never exercised, and, 
 secondly, that its invalidity must be pleaded affirmatively. Now the 
 relative quality — i. e. of affecting one person though not another — 
 is concededly true of voidable acts. But that it is not their inherent 
 mark may be perceived from two circumstances; on the one hand, 
 that a voidable act may continue to be voidable in the hands of a 
 third person, so far as he is a transferee with notice {i. e. the void- 
 ability, like the voidness, may absolutely affect the act under certain 
 circumstances), and, on the other hand, that some acts ordinarily 
 voidable are by modern doctrine {e. g. the contracts of a lunatic) 
 valid for even the immediate promisee, if he did not and could not 
 Jcnow of the avoiding circumstance. 
 
 "The result is, then, that the distinction between relative and 
 absolute validity must be separated from the idea of voidness and 
 voidableness. The only place for the former contrast is between 
 acts permitted and acts prohibited by public policy. 
 
 "The inquiry, therefore, is. What is the distinction between these 
 elements, the lack of which leaves the act void, and those other ele- 
 ments which merely make the act voidable? These other elements 
 are all reducible finally to a single consideration, namely, that of 
 motive, — i. e. the relation between the actor's state of mind and some 
 fact external to himself and his act. This consideration of Motive 
 falls under three general heads: 
 
 "i. When the fact creating the motive is somewhere mentioned 
 in the terms of the act, it is commonly spoken of as a Condition. 
 Conditions may be established by express stipulation in the act, or 
 by implication of law. Of the latter sort may be, for example, in 
 contracts, a warranty of a horse's pedigree; in deeds, a description 
 of land as containing specified buildings; in wills, a recital (incor- 
 rectly) of the death of an elder son as the reason for devising to a 
 younger one. 
 
 "2. When the fact creating the motive is not mentioned in the 
 terms of the act, the recognized grounds of avoidance are of two 
 general sorts. Error and Compulsion, (a) Error may exist either by 
 the inducement of the second party, or without it. (i) Error in- 
 duced by the second party may involve a fact misrepresented fraudu- 
 lently or innocently. In both cases, the fact must have been ma- 
 terial as a motive to induce the act; but the right to avoid is much 
 narrower in scope in the latter case than in the former. In both 
 
604 PAROL EVIDENCE RULE. No. 551. 
 
 cases, however, the avoidance is due to a fact external to the legal 
 act itself, and this marks the distinction betvifeen void and voidable 
 acts. (2) Error not induced by the second party will involve either 
 mutual or individual mistake. Where the mistake is mutual — for 
 example, where the parties agree to buy and sell a specified lot of 
 land, supposing it to contain forty acres, and in fact it contains 
 thirty-four acres only, but the price is made proportionate to forty 
 acres, and the terms of the deed do not mention the area — , the ques- 
 tion is whether this mistaken mutual motive will authorize either the 
 total avoidance of the act, or at least its judicial reformation on 
 equitable lines. This is one of the chief sources of controversy in 
 the- so-called doctrine of mutual mistake; and it has been already 
 noticed that this is entirely distinct in its problem from the doctrines 
 of mutual mistakes as to the actual contents of a document signed. 
 So, too, a mutual erroneous assumption as to the legal effect of words 
 intentionally used belongs under the present head. The practical 
 problem here is a difficult one, and the rules are by no means uni- 
 form in acceptance; but in nature it is a problem common to all legal 
 acts, whether oral or written. Where the mistake is individual only 
 — for example, in the above case, if one party alone entertained the 
 mistake as to area — , it is generally conceded that the act cannot be 
 avoided. (&) Compulsion, or duress, so far as it means a coercion 
 to choose between the signing of a document and the suffering of 
 some harm, whether corporal or otherwise, signifies that the act has 
 been consummated because of the motive of fear of that harm. Since 
 motive alone is thus involved, it follows that compulsion, like fraud, 
 merely makes the act voidable. In fact, then, compulsion is always 
 of this nature, and there is no clear distinction of principle between 
 "equitable' and 'legal' duress so-called. The only conceivable case 
 in which duress could go to deny the very existence of the act is 
 that of the physical seizure of the person's hand, and a forcible move- 
 ment of his pen, by another person, for there the first person's volition 
 is lacking. 
 
 "3. A peculiar variety of the foregoing doctrine is found in the 
 avoidability of acts of infants and lunatics. Here a rule of thumb is 
 adopted, by which the person's age or disease of itself serves virtually 
 to raise a fixed presumption of fraud or compulsion, and thus to 
 create the option to avoid, regardless of any inquiry whether there 
 was in the individual case deceit or duress. The general probability 
 of it is regarded as sufficient. At the same, time there has always 
 been a tendency, in one or another court, to break from the fixed 
 rule, and to treat such person's contracts, especially after performance 
 on one side, as voidable only when in fact there was in the par- 
 ticular case fraud or duress. It may be added that the earlier doc- 
 trine that a lunatic's contracts are void, not merely voidable, is 
 referable to the natural opportunity for doubting whether his mental 
 
No. 552. A. CREATION OF LEGAL ACTS. 605 
 
 condition, as respects legal acts, is that of total absence of real voli- 
 tion or merely of an unintelligent apprehension of the proper motives 
 of his conduct; for, if the former be the case, it is logical to treat 
 his act as void. — The voidness of a married woman's acts at common 
 law was a pure anomaly; either it had no reason at all (as modern 
 legislation practically pronounces), or it was based on an apprehen- 
 sion of imposition, in which view the rule of voidability should have 
 been applied. The invalidity of acts ultra vires of a corporation does 
 not involve the present principle, but rather that of prohibited acts; 
 for the law's prohibitions of such acts by corporations are of the same 
 nature as its prohibition of gambling or bribing contracts by natural 
 persons." 
 
 B. INTEGRATION OF LEGAL ACTS, 
 (VARYING THE TERMS OF A VALID DOCUMENT). 
 
 General Theory of the Rule against Varying the Terms 
 OF a Writing.^ "When parties negotiate at a distance, by letters 
 and telegrams, — first an offer, then a declination, then a re- 
 ^^^ vision of the offer, then a halt upon an important term, after- 
 wards an offer of its concession in return for the concession of some 
 prior term now to be changed, and finally an acceptance of this con- 
 cession, and thus an end of the negotiations, — where are terms of 
 this contract to be found? Obviously, in this congeries of letters and 
 telegrams, as mutually modifying and complementing each other. 
 The whole of the contract is not in any one document. Nor, on the 
 other hand, does the whole of any document (probably) represent a 
 part of the contract, because some of its terms have been impaired 
 and replaced by other documents in the series. Nor can it be said 
 that there is a series of legal acts, each one independent, successively 
 modifying the preceding ones; for each letter and telegram is merely 
 tentative and preparatory, and there exists no legal act until the final 
 assent is given. That assent, when it comes, adopts and vivifies the 
 entire mass, which until then was legally inchoate only. The process 
 is not unlike the fall of cards in the play of a trick at whist; the 
 total effect cannot be determined till the last card has fallen, and 
 no one card exhibits in itself the effect of the trick; yet, when all 
 are played, the second card may prove to be the decisive factor and 
 may remain unimpaired by any later play. 
 
 "On the other hand, if instead of leaving the net effect of the 
 negotiations to be gleaned from the mass of writings, a single docu- 
 ment is finally drawn up to replace them and to embody their net 
 
 I — Quoted from W., § 2425. 
 
606 PAROL EVIDENCE RULE. No. 552. 
 
 effect, and is signed or otherwise adopted by the parties, this document 
 will now alone represent the terms of the act. Instead of leaving 
 the wheat mingled with the chaff, the wheat has been definitely se- 
 lected and set apart in a single mass. The wheat existed there, no 
 less before than now, but it has now been placed in a single receptacle 
 by itself. 
 
 "This process of embodying the terms of a legal act in a single 
 memorial may be termed the Integration of the act, i. e. its formation 
 from scattered parts into an integral documentary unity. The prac- 
 tical consequence of this is that its scattered parts, in their former 
 and inchoate shape, have no longer any legal effect; they are replaced 
 by a single embodiment of the act. In other words : When a legal 
 act is reduced into a single memorial, all other Utterances of the par- 
 ties on that topic are legally immaterial for the purpose of determining 
 what are the terms of their act. 
 
 "This principle, perfectly well settled in our law, has several aspects 
 which it is necessary here to notice: 
 
 "(i) In the first place, it is not a rule of evidence, because it has 
 nothing to do with the probative value of one fact as persuading us of 
 the probable existence of another fact. It is a rule of substantive law, 
 because it deals with the question where and in what sources and ma- 
 terials are to be found the terms of a legal act. This understanding 
 of the rule is plain enough in the modern judicial utterances, in spite 
 of the frequent loose employment of the word 'evidence' — a faulty 
 habit but easily enough succumbed to, when applying the rule at 
 trials.^ 
 
 2 — Knight V. Barber, i6 M. & W. 66 must be excluded, on the ground that 
 
 (1846): the plaintiff and the defendant the parties have made the writing the 
 
 had made an oral agreement for the sale only repository and memorial of the 
 
 of shares: on the same afternoon the truth, and whatever is not found in the 
 
 defendant signed a memorandum, which writing must be understood to have been 
 
 was then handed to the plaintiff, reciting waived and abandoned." 
 
 the sale, the price, etc.; it was held that Sir /. P. Wilde, J., in Guardhouse v, 
 
 this memorandum should have borne a Blackburn, supra. No. 547: "It is one 
 
 stamp. Parke, B. : "With respect to the thing to admit evidence, and another to 
 
 first point made by Mr. Baines [for the give effect to it. If a, statute require 
 
 plaintiff] , that there was a distinct parol that a thing should be in writing and 
 
 contract between these parties before the signed, in order to its validity, it pre- 
 
 memorandum was signed, if that memo- eludes the court from giving effect to 
 
 randum was afterwards made and signed parol testimony of that which is required 
 
 by the defendant, and was intended to to be so written and signed. And if it 
 
 contain the terms of the contract and be said, why, then, admit parol evidence 
 
 to be acted upon by the plaintiff, it be- on the subject at all? The answer is, 
 
 came, when it was so acted upon, the that if the scope of such evidence can be 
 
 real contract between the parties. The clearly known before it is heard, it should 
 
 parol agreement goes for nothing, if it be excluded; but then only on the ground 
 
 was intended that it should be reduced of immateriality, not because it is sec- 
 
 into writing and this is afterwards done." ondary. In actual practice a large number 
 
 Van Fleet, C, in Van Syckel v. Dal- of cases are so presented that it is im- 
 
 rymple, 32 N. J. Eq. 233 (1880): "What practicable to reject evidence as immaterial 
 
 was said during the negotiation of the before the details of it are known." 
 contract or at the time of its execution 
 
No. 554. B. VARYING THE TERMS OF A DOCUMENT. 607 
 
 ' "(2) In the next place, this rule has no necessary relation to 
 any rule of law requiring acts to be done with a particular formality 
 such as writing. On the one hand, a contract may be entirely in writ- 
 ten form, prescribed by law, and yet the terms may be scattered 
 through many writings and not integrated in a single document; for 
 example, a will of personalty under the statute of Charles II (against 
 frauds and perjuries) had to be in writing, and yet the ecclesiastical 
 Courts constantly dealt with valid wills which were made up from 
 numerous separate writings of all sorts. On the other hand, even 
 where no form of writing is prescribed, the rule of integration applies 
 if the parties have in fact embodied their act in a single memorial."* 
 
 jr. Private Acts. 
 
 Lilly's Practical Register, 48 (1719), as quoted in Viner's 
 Abridgment, "Contract," G. 18: "If an agreement made by parol to 
 do anything be afterwards reduced into writing, the parol 
 ^" agreement is thereby discharged; and if an action be brought 
 for the non-performance of this agreement, it must be brought upon 
 the agreement reduced into writing, and not upon the parol agreement; 
 for both cannot stand together, because it appears to be but one agree- 
 ment, and that shall be taken which is the latter and reduced to the 
 greater certainty by vrriting; for vox emissa volat litera scripta 
 manet."* 
 
 WEBB V. PLUMMER (1819). 
 2. B. & Aid. 746, 750. 
 
 Assumpsit. The declaration stated, that the plaintiff being pos- 
 sessed of a farm, was in respect of it entitled to foldage; and that in 
 consideration that the plaintiff would relinquish and give up 
 the possession of the farm, and would permit him to have the 
 benefit of such foldage, the defendant undertook to make due and 
 customary allowances, as between in-coming and out-going tenants, 
 for and in respect of the said foldage. At the trial at the last Sussex 
 
 3 — Pollock, C. B., in Eden v. Blake, 13 does not exist in this State; ... the cases 
 M. & W. 614, 618 (184s): "Whatever be in this State in which parol evidence has 
 the value of the goods sold, whether it be been allowed to contradict or vary writ- 
 such as calls for a memorandum in writ- ten instruments may be classed under 
 ing, under the statute of frauds or not, two heads: ist, where there was fraud, 
 if there has been a memorandum in writ- accident, or mistake in the creation of 
 ing, it cannot be altered by extrinsic evi- the instrument itself; and 2d, where there 
 dence." has been an attempt to make a fraudu- 
 
 4 — ^The Pennsylvania rule is sui gene- lent use of the instrument in violation of 
 
 sis: Paxton, ]., in Phillips V. Meily, a promise or agreement made at the time 
 
 106 Pa. 536, 543 (1884): "The English the instrument was signed and without 
 
 rule that parol evidence is inadmissible which it would not have been executed." 
 to vary the terms of a written instrument 
 
608 PAROL EVIDENCE RULE. No. 554, 
 
 assizes before Park, J., the only question was as to the foldage, in 
 respect to which a certain sum was claimed by the plaintiff, who was 
 the out-going tenant of a Southdown farm, from the defendant, the 
 incoming tenant. It was admitted, that by the custom of the country 
 such an allowance was usually made; but the defendant contended, 
 that under the special provisions of the plaintiff's lease, the custom 
 of the country was excluded. The following were the clauses relied 
 on: "And also that the said Henry Webb shall not, during the term, 
 carry, or cause or suffer to be carried from off the premises, any hay, 
 straw, corn in the straw, haulm, sheaf, or fodder, muck, dung, com- 
 post, or sullage, that shall grow, arise, or be made in or upon the said 
 demised premises; but yearly and every year, in a good husband- 
 like manner, fodder out, lay, spread, spend, and use the same, in or 
 upon some proper part thereof, upon pain of forfeiting three pounds 
 for each load so carried away from the said demised premises; and 
 also shall and will, at all times during the said term, penn or fold his 
 flock of sheep, which he shall keep upon said demised premises, upon 
 such parts where the same have been usually folded, upon the pen- 
 alty of three pounds a time for each and every time that the same 
 shall be folded off from the demised premises, or on any other 
 part thereof, than where the same have ~ been usually folded as 
 aforesaid; and also shall and will, in the last year of the said 
 term, at the usual time for moving the dung out of the closes, carry 
 all the dung and manure arising on the premises in the preceding 
 year to such part or parts of the said fallowed lands or grattens as 
 shall be appointed by the lessor, his heirs or assigns or the next suc- 
 ceeding tenant or tenants, and there cast the same into a mixen or 
 mixens, he and they paying for fallowing such land and carrying out 
 the dung, but nothing for the dung itself, and also grass in the 
 ground, and for thrashing out the corn, as is customary between a 
 tenant coming in and a tenant going out of a farm." The learned 
 judge directed the jury to find a verdict for the plaintiff, with liberty 
 to move to enter a verdict for the defendant. 
 
 Bayley, J. : "I am of opinion that the plaintiff is not entitled to 
 recover the compensation in question. Where there is a written 
 agreement between the parties, it is naturally to be expected, that it 
 will contain all the terms of their bargain; but if it is entirely silent 
 as to the terms of quitting, it may let in the custom of the country as 
 to that particular. If, however, it specifies any of those terms, we 
 must then go by the lease alone. The custom of the country applies 
 to those cases only where the specific terms are unknown; and it is 
 founded upon this principle, that justice requires that a party should 
 quit upon the same terms as he entered. If, therefore, the party, when 
 he entered upon the farm, paid for a way-going crop, or for foldage, 
 manure, fallowing, or tillage, then if the lease be wholly silent as to 
 the terms upon which he is to quit, the custom of the country may be 
 
No. 555. B, VARYING THE TERMS OF A DOCUMENT. 609 
 
 introduced, and he may be entitled to receive for a way-going 
 crop, foldage, &c. . . . Here, too, there is a specific contract to fold 
 the flock upon the premises, under a penalty. My judgment, however, 
 is founded particularly on the last stipulation in the lease, by which 
 the tenant is prohibited from carrying off the manure, and by which 
 the incoming tenant is directed to make certain payments to him; and 
 if a lease speaks distinctly of the allowances to be made upon quitting, 
 it seems to mc to exclude all others which are not named." 
 
 HoLROYD, J.: "I am of the same opinion. . . . E\en supposing 
 that there was no covenant to fold in this lease, still, inasmuch as it 
 provides for the payments which the incoming tenant is to make, it 
 seems to me that its language* is equivalent to this, that the incoming 
 tenant shall pay for such things as are specified, and no more. For 
 the rule expressio unius est exclusio alterius applies. Then as the 
 parties have provided for all the payments that were to be made, and 
 as they have not mentioned foldage, it follows that the plaintiff is not 
 entitled to any compensation for it, and that the verdict must be en- 
 tered for the defendant." 
 
 BROWN V. BYRNE (1854). 
 3 E.& B. 703. 
 
 Action for a freight bill of £145, gs, lod. The plaintiff was a 
 shipowner in Liverpool. The defendant was a merchant there, carry- 
 ing on business under the firm of A. E. Byrne & Co. On the 
 ^^^ 5th October, 1853, Messrs. J. B. Byrne & Co., of New Orleans, 
 shipped on board the ship Courier, a vessel belonging to the plaintiff, 
 no bales of cotton, for which the master signed a bill of lading, of 
 which the following is a copy: "Shipped in good order and well con- 
 ditioned, by J. B. Byrne & Co., on board the ship called the Courier, 
 whereof Gemmill is master, now lying at the port of New Orleans, 
 and bound for Liverpool, to say, one hundred and ten bales cotton, 
 being marked and numbered as in the margfin, and are to be delivered 
 in the like order and condition at the aforesaid port of Liverpool 
 (the dangers of the sea only excepted) unto order or to assigns, he 
 or they paying freight for the said goods five-eighths of a penny 
 sterling per pound, with 5 per cent primage, and average accustomed. 
 In witness whereof the master or purser of the said vessel hath af- 
 firmed to four bills of lading, all of this tenor and date; one of which 
 being accomplished the others to stand void. Dated in New Orleans, 
 the Sth day of October, 1853. John Gemmill." This bill of lading 
 was forwarded to the defendant, indorsed to him. 
 
 The defendant offered to pay £143 13J. yd. on account of this 
 freight; but he refused to pay the balance, fi iSs. 3d., on the ground 
 that, by custom of Liverpool, as described in the opinion, he was en- 
 titled to a deduction of three months' discount from the freight. 
 
610 PAROL EVIDENCE RULE. No. 555. 
 
 Blackburn, for the defendant: "Perhaps it is not possible to rec- 
 oncile all the cases on this matter, or to lay down accurately the 
 limits to the admissibility of custom. But the cases agree in laying 
 down limits which certainly include this case. It may be convenient 
 first to answer a question, put from Bench, as to whether there is a 
 distinction between written and verbal contracts. There is a differ- 
 ence; but in this respect there is none. When the parties have agreed 
 that a particular writing shall be the record of their contract, they 
 cannot by other evidence show that their intention was something 
 different from what they have expressed in that record. When there 
 is no record of the contract, the intention is to be gathered, not only 
 from their words, but from everything else. But, if the parties met 
 for the first and last time, and made a contract entirely by words, 
 these words would, if proved, have precisely the same construction 
 as if they had been written down. It is quite true that evidence 
 is also admissible to interpret words; but that is on a different ground. 
 If a contract were made in France between Frenchmen, and were 
 sued on here, an interpreter would be sworn to prove the meaning 
 of the French words. But evidence of French lawyers would also 
 be admissible, to show what incidents the French law annexed to such 
 a contract; for such incidents are tacitly incorporated. But the 
 parties may, by express words or by implication, agree to exclude the 
 incident which the general law would annex if they were silent; and 
 it is exactly the same where the incident is annexed by custom or local 
 law. ... In the present case, if the wording of the bill of lading had 
 been 'he or they paying freight for the said goods five-eighths of a 
 penny per pound, cash without deduction,' the tenor of the instru- 
 ment would have expressly excluded the custom; but there are no 
 such words. Then the question is, not whether the custom if admitted 
 will vary, or be inconsistent with, the contract as it would stand with- 
 out the custom, but whether it is impliedly excluded by the tenor of 
 the instrument. The other mode of enunciating the proposition has 
 been used by high authorities, but evidently is inaccurate. No one 
 ever did or ever will seek to annex an incident by proof of a custom, 
 except for the express purpose of varying the contract from what it 
 would be if the custom were not proved." 
 
 Coleridge, J. : "This was a special case extremely well argued 
 before my brothers Wightman, Erle, Crompton, and myself, at the 
 sittings after last term, by Mr. Mellish and Mr. Blackburn. And 
 the question for decision is shortly this : Whether, in an action by a 
 shipowner against the indorsee of a bill of lading, to whom goods 
 have been delivered at Liverpool, and who has accepted them, the bill 
 of lading making them deliverable, he 'paying freight for thepi five- 
 eighths of a penny sterling per pound, with £5 per cent primage, and 
 average accustomed,' the latter may lawfully claim to retain from 
 £138 IIS. 3d., the amount of the freight at the rate specified, £i i6s. 3d., 
 
No, 565. B. VARYING THE TERMS OF A DOCUMENT. 611 
 
 on the ground that, by the custom of Liverpool, he is entitled to a 
 deduction of three months' discount from the freight. It is admitted 
 that the custom exists in fact, in regard of shipments from New Or- 
 leans, and some other ports in the Southern States of the American 
 Union, to Liverpool;, but it is objected to as bad in law, because it 
 is inconsistent with the written document, the bill of lading. Five- 
 eighths of a penny on the weight of the cargo is, it is said, equal to 
 £138 lis. 2d.: the bill must be read as if that sum were specified in 
 it; and this custom, if allowed, will change it to £136 15J. 
 
 "The principles on which this case is to be decided are perfectly 
 clear ; the difficulty lies in the application of them to the facts. . . . 
 In all contracts, as to the subject-matter of which known usages pre- 
 vail, parties are found to proceed with the tacit assumption of these 
 usages; they commonly reduce into writing the special particulars of 
 their agreement, but omit to specify these known usages, which are 
 included however, as of course, by mutual understanding: evidence 
 therefore of such incidents is receivable. The contract in truth is 
 partly express and in writing, partly implied or understood and un- 
 written. But, in these cases, a restriction is established on the sound- 
 est principle, that the evidence received must not be of a particular 
 which is repugnant to, or inconsistent with, the written contract. 
 Merely that it varies the apparent contract is not enough to exclude the 
 evidence; for it is impossible to add any material incident to the 
 written terms of a contract without altering its effect, more or less."^ 
 . . . Here the contract is, to pay freight on delivery at a certain rate 
 per pound: is it inconsistent with this to allege that, by the custom, 
 the shipowner, on payment, is bound to allow three months' discount? 
 We think not. The written contract expressly settles the rate of 
 payment: the custom does not set this aside; indeed, it adopts it, as 
 that upon which it is to act, by establishing a claim for allowance of 
 discount upon freight to be paid after that rate. The consignee un- 
 dertakes to pay freight on delivery after that rate; the shipowner 
 undertakes to allow three months' discount on freight paid after that 
 rate; the latter contract is dependent on the former, but is not re- 
 pugnant to it. If the bill of lading had expressed, or if, from the 
 language of it, the intention of the parties could have been collected, 
 that the freight at the specified rate should be paid, free from all de- 
 ductions, customary or otherwise, then it would have been repugnant 
 to it to set up the custom, and the case would have been brought 
 within the restriction mentioned above." 
 
 1 — Grove, J., in Hutchinson v. Totham, torn, inasmuch as the effect of the con- 
 
 L. R. 8 C. P. 482, 488 (1873): "In one tract would not be the same without the 
 
 sense the contract must always be varied parol evidence, or else the parol evidence 
 
 by the admission of the evidence of cus- would itself be unnecessary." 
 
612 PAROL EVIDENCE RULE. No. 556. 
 
 BRETTO V. LEVINE (1892). 
 ^0 Minn. 168, 52 N. W. 525. 
 
 Dickinson, J.: "The defendants were formerly the owners of cer- 
 tain real estate situate in the town of Tower, including a store building 
 standing thereon, in which was a quantity of shelving put up for 
 ^^® use therein. They also had within the building certain other 
 property which is the subject of this action, consisting of hanging 
 lamps, stove, tables, show cases, chairs, counters, safe, and other per- 
 sonal property. On the nth day of February, at the city of Duluth, 
 they agreed orally upon a sale of the real estate to the plaintiff, and, 
 as the plaintiff claims, of all the personal property also, for the price 
 of $4,300. Pursuant to that agreement a deed of conveyance of the 
 real estate was made and delivered the following day, in which the 
 consideration expressed was as above stated, and which was paid. 
 In this deed, following the description of the premises conveyed, is 
 the clause: 'This grant includes all the shelving in the building 
 situate on said premises.' The issue in this case is as to whether 
 the sale included the personal property referred to, other than the 
 shelving, and the principal question of law is whether the effect of 
 the deed was to render incompetent the oral proof which was re- 
 ceived at the trial, to the effect that by the agreement of the parties 
 this personal property was included in the sale. If such was the agree- 
 ment, the title passed. The payment of the price saved the transaction 
 from the operation of the statute of frauds. 
 
 "Although the agreement, assuming that it included the personal 
 property, as well as the real estate, was entire in its nature, it re- 
 lated to subjects so different that different modes of carrying it into 
 execution were appropriate, if not necessary. As to the personal 
 property, all that was necessary to transfer the title was the agree- 
 ment of sale and the payment of the price. The real estate could only 
 be legally conveyed by deed. That was the ordinary and legally proper 
 purpose of such an instrument. If the deed had not contained the 
 clause above recited, there would be not much reason to support a 
 claim that the deed of the real estate was intended by the parties to 
 embrace, and become the exclusive evidence of, all which they might 
 have agreed upon or intended to accomplish, so as to exclude oral 
 evidence of a sale of the personal property as well as of the real estate. 
 Such an instrument would not be legally presumed to have been in- 
 tended to have a wider or different effect than that which, and which 
 alone, such instruments are commonly and properly executed to ac- 
 complish, — ^that is, to convey real property, and to express such condi- 
 tions or covenants concerning the same as might be agreed upon. An 
 instrument of such a nature would not be presumed to have been 
 intended also to accomplish the very different purpose of evidencing 
 all transactions or agreements of the parties relating to a subject dis- 
 
No. 557. B. VARYING THE TERMS OF A DOCUMENT. 613 
 
 tinct from that to which the deed in terms and appropriately re- 
 lates. . . . 
 
 "But we do not think that the clause concerning the shelving in the 
 huilding gave to this deed any other effect in this particular than it 
 ■would have had if this clause had been omitted. If such a clause had 
 been inserted with respect to one or more articles of personal prop- 
 erty, as chairs, of such a nature that there could be no doubt as to 
 whether they constituted a part of the realty so as to pass under a 
 deed conveying the real property, the result would probably be dif- 
 ferent. But the most satisfactory conclusion, as to the reason for in- 
 troducing this clause in the deed, is that it was because of some uncer- 
 tainty or doubt as to whether the shelving was properly a part of the 
 realty, or only personal property, and to prevent any controversy or 
 question concerning that matter. By the technical language of the 
 deed, the shelving was included as a part of the real property, 'this 
 grant' being declared to include it. From this it is not to be con- 
 clusively presumed that the deed was not intended merely as a con- 
 veyance of what was deemed to be, or to belong to, the real estate, 
 but also to be the repository of all that the parties had agreed upon 
 or done, so as to exclude parol evidence of a sale of personal property 
 as a part of the same transaction." 
 
 POTTER V. EASTON (1901). 
 82 Minn. 247, 84 N. W. loii. 
 
 Start, C. J.: "On February 12, 1897, the defendants executed to 
 the plaintiff three promissory notes, for $500 each, due in one, two, and 
 three years, respectively, with interest. There was written on 
 ^*' the face of each note these words: 'Secured by mortgage on 
 one bay pacing stallion known as Lebbeas I, 2:13^4.' As a part of 
 the same transaction they executed to the plaintiff a chattel mortgage 
 to secure the payment of the notes upon 'One mahogany bay stallion, 
 known as Lebbeas I (2:13^^ pacing).' They also signed and deliv- 
 ered to the plaintiff a writing in these words: 'This is to certify that 
 we have bought the bay stallion known as Lebbeas I (pacing 2:1354), 
 and given in payment three promissory notes, of $500 each, payable 
 yearly, with interest at 6 per cent, per annum, payable Rochester; 
 and we further agree to apply one-third net of said Lebbeas I's earn- 
 ings after September i, 1897, to liquidate said notes.' This is an 
 action upon the notes, to recover an alleged balance of $1,239.20. The 
 answer alleged that the notes were given for the purchase price of 
 the stallion sold by plaintiff to defendants, and that the plaintiff war- 
 ranted the horse to be sound, but that in fact he was unsound, — had 
 a ringbone and was broken in wind, — and that by reason of such 
 breach of the warranty the defendants had sustained damages in a 
 sum exceeding the amount due on the notes. The reply admitted that 
 
614 PAROL EVIDENCE RULE. No. 557. 
 
 the notes were given for the purchase price of the horse, but denied 
 that the plaintiff 'made any warranty whatever regarding the horse 
 called "Lebbeas I." ' On the trial the notes, mortgage, and certifi- 
 cate were offered in evidence by the plaintiff. The defendants gave 
 oral evidence tending to prove that the plaintiff warranted the horse, 
 and that there was a breach thereof, and resulting damages. The 
 evidence was received over the objections and exceptions of the plain- 
 tiff, which were to the effect that the contract of sale was in writing, 
 and such oral evidence was incompetent. The plaintiff had a verdict 
 for $150 only, and he appealed from the judgment entered upon the 
 verdict. The correctness of the trial court's ruling upon the admis- 
 sibility of the oral evidence to prove the warranty is the only question 
 presented by the record for our decision. 
 
 "The plaintiff contends that the certificate is a complete contract, 
 purporting to state the terms of the purchase of the horse; hence 
 evidence of an oral warranty of the soundness of the horse was in- 
 competent. If the premises of this proposition are correct, the con- 
 clusion is necessarily so; for, if the horse was sold with an oral 
 warranty as to his soundness, the warranty was one of the terms of 
 the contract, and not a separate or collateral one. Therefore, if the 
 certificate here in question is complete in itself, and couched in such 
 language as imports a legal contract for the sale of the horse, parol 
 evidence is not admissible to add to the written terms of the contract; 
 for, if such be the correct construction of the writing, it will be con- 
 clusively presumed that it contains all of the terms and stipulations 
 of the parties in the transaction. But if the writing is manifestly 
 incomplete, and it appears upon its face that the parties did not in- 
 tend it to be a complete statement of the whole contract between them, 
 parol evidence is competent to prove the existence of any separate 
 agreement as to any matter on which the writing is silent which is 
 not inconsistent with its terms. 
 
 "These rules are. elementary, but, in their application to particu- 
 lar cases, care is required in distinguishing the cases so as to deter- 
 mine within which rule the particular case falls. In considering 
 whether or not a particular writing is an incomplete contract, within 
 the rule stated, the controlling question is whether it appears upon 
 the face of the writing that the parties intended it to be the exclusive 
 evidence of their agreement. While the writing itself is the only 
 criterion by which the intention of the parties is to be ascertained, 
 yet it is not necessary that the incompleteness of the writing should 
 appear on its face from a mere inspection of it, for it is to be con- 
 strued in the light of its subject-matter and the circumstances under 
 which and the purposes for which it was executed. So construing 
 the certificate or writing here in question, and particularly in connec- 
 tion with the notes and the chattel mortgage, which are a part of the 
 same transaction, it is reasonably clear from the face of the certificate 
 
No. 558. B. VARYING THE TERMS OF A DOCUMENT. 615 
 
 that it was not intended as a contract for the sale of the horse, but 
 that it was intended simply for the purpose of further securing the 
 payment of the notes by a Hen on the earnings of the horse. There- 
 fore it is not a complete sale contract on its face, and evidence of the 
 oral warranty was correctly received by the trial court. The writing 
 cannot be read as a present agreement of sale, or as a recital of the 
 terms of a past sale. It contains no stipulations to sell or buy. The 
 seller does not execute it, but the purchasers do; and they recite 
 therein the fact of a past sale, without attempting to state any of 
 its terms, as a consideration for the promise to apply a part of the 
 earnings of the horse to the payment of the notes. If the substance 
 of this certificate had been written into the chattel mortgage, as it 
 might well have been, could it be reasonably claimed, by any fair 
 or permissible construction of the mortgage, that it embodied a com- 
 plete contract for the sale of the horse? Clearly not. Now, whether 
 we read the certificate as a part of the mortgage or in connection 
 with it, as a part of the same transaction, it must receive the same 
 construction; and it is clear that it is not a complete contract for the 
 sale of the horse, and, further, that the parties did not intend it to be."^ 
 
 RAMSDELL v. CLARK (1897). 
 20 Mont. 103, 4p Pac. spi. 
 
 This action was upon a lease entered into between the respondent 
 (plaintiff below) and appellant (defendant below), on October 20, 
 1887. Under the terms of the lease, defendant was to take 
 "^° possession of a certain mine, situated in Silver Bow county, and 
 to work and mine the same in "a good workmanlike, and substantial 
 manner, and to the best advantage," for one year, unless he negotiated 
 a sale of the said property within that period. He was to "reduce and 
 smelt the ore therefrom, and concentrate the same," at his own ex- 
 pense, and sell the products, and, after deducting all expenses, he was 
 to pay one-half the net proceeds to the plaintiff. Defendant took pos- 
 session of the mine on the day of the execution of the lease, but 
 worked the same for a period of six months only. Plaintiff instituted 
 an action against defendant in the district court of Silver Bow county 
 on January 30, 1892. The complaint alleged three breaches of the 
 covenants contained in the lease. As the first breach it averred that 
 
 I— Compare the following: Depue, J., of the terms of the parties' agreement is 
 
 in Naumberg v. Young, 44 N. J. L. 331 the contract itself. ... If the written 
 
 (1892): "In what manner shall it be contract purports to contain the whol« 
 
 ascertained whether the parties intended agreement, and it is not apparent from 
 
 to express the whole of their agreement the writing itself that something has been 
 
 in the written contract? . . The only left out to be supplied by extrinsic evi- 
 
 safe criterion of the completeness of a dence, parol evidence to vary or add to 
 
 "written contract as the full expression its terms is not admissible." 
 
616 PAROL EVIDENCE RULE. No. 558. 
 
 defendant had worked the mine for six months, but had failed to pay 
 over to plaintiff one-half of the net proceeds realized from the ores 
 extracted. As a second breach it alleged that defendant had failed to 
 work the mine in a good, workmanlike, and substantial manner during 
 said six months, to the damage of plaintiff in a certain sum. The third 
 breach set forth was that the defendant had failed to work the mine 
 at all after the expiration of said six months, to the damage of plain- 
 tiff in a certain sum. The defendant answered the complaint, denying 
 certain of the allegations therein. He also averred that the terms of 
 the lease had been modified as to accounting in respect to concen- 
 trates. As a defense to the first breach, it was alleged that an ac- 
 counting had been had with plaintiff under the lease, as modified on 
 July 10, i888, and that he (plaintiff) had been paid, and had ac- 
 cepted, in full settlement of his claims, what was found to be due him. 
 A replication was interposed, which, among other denials, set forth that 
 there had never been an accounting, and that the plaintiff had never 
 been paid, and had never accepted, any sum in full settlement for what 
 was due him by reason of the first breach of the lease. The case was 
 tried to a jury. Upon the trial the defendant introduced in evidence 
 the following receipt: "Dec. 6, '94. G. H. M. Office of W. A. Clark, 
 Butte, Montana, 7-10, 1888. Received of Ramsdell Parrott lease, at the 
 hands of W. A. Clark, five hundred and sixty and 79-100 dollars, pay- 
 ment in full for balance of royalty on ore and supplies. $560.79. 
 [Signed] Joseph Ramsdell." The jury returned a verdict in favor of 
 defendant. A motion was made for a new trial, which was granted. 
 The appeal is from the order granting the motion for a new trial. . . . 
 Buck, J. : "Even keeping in mind the distinction between a re- 
 ceipt regarded as a mere acknowledgment, and as possessing a con- 
 tractual feature, still the rule of law is not absolutely clear when it 
 is to be applied to the language of each particular receipt. . . . 
 The mere expression contained in a receipt 'in full payment' does not 
 necessarily render the paper a contract in the nature of a release or 
 waiver. Whether a receipt possesses any contractual feature or not must 
 often be determined from its entire language, and also, at times, from 
 the language in connection with the circumstances under which it was 
 given. If A, to whom B is indebted in the undisputed sum of $200, is 
 paid by the latter $100, and signs a receipt for the sum of $200, or, 
 mentioning the sum paid, acknowledges payment in full of the debt, 
 nevertheless A, in an action against B for the unpaid balance, without 
 showing any fraud, mistake, or other excuse for having signed the 
 receipt, can contradict it by extrinsic evidence, and show that only 
 $100 was paid. It would only be evidence of B's having paid the debt 
 just as an oral admission proved against A would be. If, however, 
 B has been indebted to A on an account the amount of which has 
 been in dispute between them, a receipt by A definitely specifying 
 the entire account, and acknowledging a sum received as payment in 
 
No. 559. B. VARYING THE TERMS OF A DOCUMENT. 617 
 
 full of the same, would possess a contractual feature; and, in order 
 to contradict or vary the terms of it by extrinsic evidence in so far as 
 it would be a contract, A would be required to observe the rules of 
 law applicable to contracts, and could not treat it in evidence against 
 him as if it were of no greater weight than a mere oral admission on 
 his part. 
 
 "Let us apply these principles to the receipt given by the plaintiff, 
 and relied upon by the defendant, in the case before us. As to the 
 circumstances under which it was given, Wethey, a witness for de- 
 fendant, testified that there had been a dispute between plaintiff and 
 defendant as to one or two items of the account due under the terms 
 of the Ramsdell-Parrott lease, and that the last settlement had between 
 them was subsequent to the expiration of the six months during which 
 the defendant had worked the mine. The receipt specifies the lease, 
 and recites that a certain sum has been received by plaintiff as 'pay- 
 ment in full for the balance of royalty on ore and supplies.' The lit- 
 eral terms of the paper stand admitted, and Wethey's testimony as to it 
 is uncontradipted. It is not suggested that the plaintiff did not actual- 
 ly receive the sum of money specified therein. After the admission 
 in evidence of this testimony and the receipt, the defendant had es- 
 tablished a prima facie defense as to the first cause of action. The 
 burden was then upon the plaintiff to destroy the effect of this receipt. 
 He failed to do so. . . . At the close of the trial, so far as the 
 evidence was concerned, the defendant was entitled to a peremptory 
 instruction that the jury should find in his favor as to the first cause 
 of action."^ 
 
 BAUM V. LYNN (1895). 
 7^ Miss. P32, 18 So. 428. 
 
 Bill for accounting by Mary Grace Devine Lynn against the execu- 
 trix of John A. Klein and others. From a decree for plaintiff, de- 
 fendant, Ellen Baum, executrix of J. F. Baum, appeals. 
 ^^* Cooper, C. J. : "In May, 1873, John A. Klein was appointed 
 
 guardian to the appellee by the chancery court of Warren county, and 
 gave bond as guardian in the penalty of $2,000, with George M. Klein 
 and J. F. Baum, appellant's testator, as sureties. . . . The prayer is 
 that the executrix of the guardian be required to render his final ac- 
 
 2 — Cowen, J., in M'Crea v. Purmort, or extinguishes the debt; a receipt for the 
 
 16 Wend. 460, 473 (1836): "A release payment does not extinguish the debt; 
 
 cannot be contradicted or explained by it is only evidence that it has been paid, 
 
 parol because it extinguishes a pre-exist- Not so of a written release; it is not only 
 
 ing right. But no receipt can have the evidence of the extinguishment; but it is 
 
 effect of destroying per se any subsist- the extinguisher itself." 
 ing right; it is only evidence of a fact. Compare the authorities cited in W., 
 
 The payment of the money discharges g 2432. 
 
618 PAROL EVIDENCE RULE. No. 559. 
 
 count as guardian. . . . Decrees were made against George M. 
 Klein and Ellen Baum, executrix of J. F. Baum, for $2,000. . . . 
 "The objection most strenuously urged to the decree rests upon the 
 following facts, proved or offered to be proved by appellant: The 
 guardian had loaned a part of his ward's money to Mrs. Mary Irving. 
 In June, 1884, the guardian being then dead, and his estate hopelessly 
 insolvent, the appellee, who then resided in the state of Texas, came 
 to this state to look after the estate. On the i6th of June, Mrs. Irving 
 made to her conveyance in the following language: 'This indenture, 
 made and entered into this day, the i6th of June, 1884, by and between 
 Mary Irving, of the city of Vicksburg, county of Warren, and state 
 of Mississippi, party of the first part, and Mary Grace Lynn, of the 
 state of Texas, party of the second part, witnesseth: That whereas, 
 John A. Klein, late of said city of Vicksburg, did, on or about the 
 14th day of February, 1874, loan the said Mary Irving certain moneys 
 then in his hands as guardian of the said Mary Grace Lynn, then 
 Mary Grace Devine, and whereas, the said Mary Irving now desires to 
 settle in full any balance that may be due by her: Now, therefore, 
 for and in consideration of the premises, and the consideration of the 
 full acquittal, discharge and release of the said Mary Irving from 
 any and all liability to the said John A. Klein as guardian, or the said 
 Mary Grace Lynn for and on account of said loans, and the further 
 consideration of ten dollars in hand paid, the receipt of which is 
 hereby acknowledged, the said party of the first part does hereby con- 
 vey and warrant to the party of the second part, her heirs and assigns, 
 in fee simple, the following described real estate in the said city of 
 Vicksburg,' — describing the property, and concluding with the usual 
 habendum. The appellant took the deposition of Mr. Irving, who was 
 the husband of the grantor, she being now dead, and that of George 
 M. Klein, and of Mr. Smith, the attorney who prepared the convey- 
 ance, all of whom testified that the conveyance was made by Mrs. 
 Irving, and accepted by Mrs. Lynn, in full satisfaction and settlement 
 not only of the debt due by Mrs. Irving to Klein as guardian, but also 
 in discharge and settlement of liability on the part of the guardian to 
 his ward, which liability Mrs. Lynn agreed to discharge and release 
 as a part of the consideration for the conveyance. The complainant 
 moved to suppress these depositions, and objected to them when of- 
 fered in evidence, upon the ground that it was incompetent to vary 
 by parol proof the written contract of the parties as shown by the 
 deed. . . . 
 
 "In Gully V. Grubbs, i J. J. Marsh, 387, Judge Robertson in an ad- 
 mirable and concise manner states the true principle upon which is 
 based the rule of permitting oral evidence to be introduced to show 
 the true consideration of a deed in opposition to that recited, as well as 
 the limitation of the rule. . . . Judge Robertson illustrates his own 
 views by noting the difference between the mere statement of a fact 
 
No. 559. B. VARYING THE TERMS OF A DOCUMENT. 619 
 
 {e. g. the admission of the receipt of the purchase price) and the vest- 
 ing, creating, or extinguishing a right {e. g. by the execution of a 
 release), in the following language: 'A party is estopped by his deed. 
 He is not to be permitted to contradict it. So far as the deed is 
 intended to pass a right, or to be the exclusive evidence of a contract, 
 it concludes the parties to it. But the principle goes no further. A 
 •deed is not conclusive evidence of everything it may contain. For in- 
 stance, it is not the only evidence of the date of its execution, nor is 
 its omission of a consideration conclusive evidence that none passed, 
 nor is its acknowledgment of a particular consideration an objection to 
 other proof of other and consistent considerations; and, by analogy, 
 the acknowledgment in a deed is not conclusive of the fact. This is 
 but d fact, and testing it by the rationality of the rule we have laid 
 •down, it may be explained or contradicted. It does not necessarily 
 and undeniably prove the fact. It creates no right; it extinguishes 
 none. A release cannot be contradicted or explained by proof, be- 
 •cause it extinguishes a pre-existing right. But no receipt can have the 
 effect of destroying per se any subsisting right. It is only evidence 
 of a fact. The payment of the money discharges or extinguishes the 
 debt. A receipt for the payment does not pay the debt. It is only 
 evidence that it has been paid. Not so of a written release. It is not 
 only evidence of the extinguishment, but is the extinguishment itself.' 
 The deed now under examination contains, as is clearly to be seen, 
 no mere recital of a consideration paid or to be paid. Its recital is 
 only of the facts necessary to be stated to intelligently apply the con- 
 tract of the parties to the subject matter. Having set out the relation- 
 ship of debtor and creditor, and the history of the transaction from 
 which it arose, the deed then proceeds to state what the parties agreed, 
 contracted, and did in reference to the dissolution of the relationship. 
 Mrs. Irving did something. She conveyed the land to Mrs. Lynn. Mrs. 
 Lynn did something. She released the debt to Mrs. Irving. One 
 transferred a right; the other released a right. If it be said that the 
 release was a mere recited consideration for the conveyance, it may 
 -with equal accuracy be replied that the conveyance was a mere recited 
 consideration for the release; and therefore, if one of the terms of 
 the contract may be varied by parol, because it is a consideration, so 
 also may the other for the same reason, and by this process a solemn 
 and executed written contract would be totally eaten away. The true 
 rule is that a consideration recited to have been paid or contracted 
 for may be varied by parol, while the terms of a contract may not be, 
 though the contract they disclose may be the consideration on which 
 the act or obligation of the other party rests."' 
 
 3 — Compare the authorities cited in W., 5 2433' 
 
620 PAROL EVIDENCE RULE. No. 560. 
 
 CHAPIN V. DOBSON (1879). 
 78 N. Y. 74. 
 
 This action was brought upon the following agreement between the 
 parties: "Philadelphia, July 9, 1868. We agree to furnish John Dob- 
 son with the following machinery, on terms stated: Sixteen 
 *"" 48-inch and 7 60-inch first Breaker Feeders, at three hundred 
 dollars each, delivered at depot at Pawtucket, R. I., to be sent by 
 steamer from Boston to Philadelphia, and allowance of three dollars 
 to be made on each machine for freight. Man's time and expenses 
 from Philadelphia to be charged extra for applying the machines. 
 Terms cash on delivery, 5 per cent commission to be allowed on each 
 machine, 5 60-inch and 4 48-inch to be delivered as soon as possible, 
 the balance in thirty days thereafter. Harwood & Quincy, Agents for 
 Chapin & Downes. I agree to the above. John Dobson." Plaintiffs 
 delivered a portion of the machines, for which they claimed to re- 
 cover the purchase-price, with damages for the refusal on the part 
 of defendant to receive the residue. Defendant's answer alleged 
 among other things, in substance, that at the time of the execution 
 of said instrument, and in consideration that defendant would execute 
 the same, plaintiffs agreed and guaranteed that the machines would 
 work well and to the satisfaction of defendant, and in case of their 
 failure so to do, 'that plaintiffs would take them back, and de- 
 fendant should not be required to pay for them; that the machines de- 
 livered did not work well or to the satisfaction of the defendant, and 
 were useless to him; in consequence whereof defendant detached them 
 from his machinery, notified plaintiffs to remove them, and refused 
 to accept the residue. Upon the trial defendant offered evidence prov- 
 ing a parol guaranty to the effect that the machines should be so 
 made that they would do the defendant's work well and satisfactorily, 
 or in case of failure that they should be taken back, and not be paid 
 for. This evidence was objected to on the ground that, in substance, 
 the agreement was embodied in the writing, which could not be varied 
 by oral evidence. The objections were overruled, and plaintiffs duly 
 excepted. 
 
 Danforth, J.: "The general rule requires the rejection of parol 
 evidence when offered to cut down or take away obligations entered 
 into between parties and by them put in writing. ... It does not 
 apply, therefore, where the original contract was verbal and entire and 
 a part cmly reduced to writing. Nor has it any application to 
 collateral undertakings. And these facts are always open to in- 
 quiry, and may be proved by parol. . . . The plaintiffs introduced 
 in evidence a written instrument dated July 9, 1868. There is nothing 
 upon its face to show that it was intended to express the whole con- 
 tract between the parties. The referee finds that it does not contain 
 
No. 560. B. VARYING THE TERMS OF A DOCUMENT. 621 
 
 it, and that the plaintiffs at the same time guaranteed to the defendant 
 that the machines mentioned therein should be so made that they 
 would do the defendant's work satisfactorily or they should not be 
 paid for, and the defendant thereupon signed the writing in considera- 
 tion of said guaranty. He also finds that the matters in writing and 
 the above guaranty constituted the contract or agreement between the 
 parties. . . . The written contract related to machines thereafter to 
 be manufactured by the plaintiffs, fixed the price at which they were 
 to be furnished, the number, the place, and manner of delivery, the 
 time and manner of payment. Nothing else was provided for. These 
 terms are to remain as written. Some of them impose obligations 
 upon the plaintiffs, and others on the defendants. The parol agree- 
 ment was on the part of the plaintiffs. By it they guaranteed 'that 
 the machines should be so made that they would do the defendant's 
 work satisfactorily.' The writing specified machines described as 'First 
 Breaker Feeders,' of certain dimensions. How they should work, and 
 whether well or ill, is not stated. If it had called for a machine to 
 satisfy a required purpose, of which the plaintiffs had notice, and which 
 they had undertaken to supply, they would have been bound as a con- 
 dition of the contract to supply an article reasonably fit for the pur- 
 pose, and a warranty would have been implied that it was so. . . . 
 The guaranty as made does not contravene the written contract, and is 
 not inconsistent with it. If the fitness of the machine is implied, the 
 guaranty is in harmony with it, and adds nothing; if it is not implied, 
 the paper contains no declaration that the machines shall be taken 
 with all faults and insufficiencies, or at the defendant's risk. The 
 parol evidence therefore contradicts no term of the writing, nor varies 
 it. The written contract and the guaranty do not relate to the same 
 subject matter. The contract is limited to a particular machine as 
 such. The guaranty is limited to the capacity of the machine. It is 
 one thing to agree to sell or furnish machines of a specific kind, as of 
 such a patent, or of a particular designation, and another thing to un- 
 dertake that they shall operate in a particular manner or with a certain 
 effect, or, as in this case, that they shall do the buyer's work satis- 
 factorily. The first would be performed by the delivery of machines 
 answering the description or the specifications of the patent; and 
 whether they did or not conform thereto would be the only inquiry. 
 As to the other, it in no respect touches the first, nor does it operate 
 as a defeasance, but leaves it valid, and to be performed, and the con- 
 sequences of a breach of the guaranty afe a recoupment or abatement 
 of damages in favor of the defendant."'^ 
 
 I — Compare the authorities cited in W., 5 Z434; and also the doctrine of No. S48i 
 
 ante. 
 
622 PAROL EVIDENCE RULE, No. 561. 
 
 BARBRE V. GOODALE (1896). 
 38 Or. 465, 43 Pac. 378. 
 
 Action to recover upon two separate causes. The first was upon a 
 written agreement which purports upon its face to be the agreement 
 of one G. W. Handsaker, of the first part, and J. C. Goodale, 
 *"■'■ of the second part. By its terms, in brief, the first party agrees 
 to cut, haul, bank and deliver to the second party 2,000,000 feet of fir 
 logs, and, if certain conditions of the lumber market continued to pre- 
 vail, an additional 500,000 feet, at a certain point upon the McKenzie 
 river, in Lane county, at the rate of $3 per 1,000, to be paid by the 
 second party as follows: One dollar per thousand when the logs were 
 cut and banked, and $1 per thousand when scaled and rolled in the 
 river, and such balance as should be found due between the parties 
 ■within 31 days thereafter. The last clause is as follows: "It is 
 further understood and agreed, and is part of the consideration of 
 this agreement, that the second party reserves out of and deducts 
 from the balance that may be due the first party, after making said first 
 two payments, any sum or sums that may then be due or to become 
 due to the second party from J. I. Barbre, or for which he is respon- 
 sible, to pay J. I. Barbre not to exceed $1,700, the obligations of which 
 are now created." The contract purports to be under seal. The plain- 
 tiff having cut, hauled, and banked 1,442,000 feet of logs, and cut in 
 the timber 382,000 feet more, and while proceeding with the perform- 
 ance of the contract, the defendant, on March i, 1892, notified and 
 directed him to discontinue the work, as he would not pay for or take 
 any more of such logs. Whereupon the plaintiff commenced this action 
 to recover under the contract for such logs as he had cut and banked, 
 and also for such as he had cut in the timber. The complaint pro- 
 ceeded upon the theory that G. W. Handsaker was Barbre's agent in 
 the execution of said contract, and that it was signed and executed in 
 his name, instead of Barbre's, by consent of defendant, and hence that 
 Barbre is entitled to sue upon the agreement solely and in his own 
 name. The second cause of action was based upon the sale and de- 
 livery by plaintiff to defendant of 987,000 feet of other logs at $3.25 
 per 1,000, upon which a balance of $472.34 is claimed. . . . 
 
 At the trial, plaintiff, while a witness in his own behalf, was asked 
 and permitted to answer, over the objection of the defendant, the fol- 
 lowing questions: "Question. How did that clause about the $1,700, 
 which allows Goodale to deduct from last payment amount due him 
 from Barbre, not to exceed $1,700, come to be in the contract? Answer. 
 I had been logging for Goodale, and he had paid me about $1,700 on 
 logs which were claimed by the O. & C. R. R. Co., and it sued, or 
 threatened to sue, him to recover the value of the logs. If he had to 
 
No. 561. B." VARYING THE TERMS OF A DOCUMENT. 623 
 
 pay the railroad company for the logs, this had to be deducted out of 
 the contract price of those logs. Q. State what the conversation 
 was, at the time of your entering into the contract, as to who the 
 true parties to the contract should be. A. Mr. Goodale and I had a 
 conversation about making the contract to get out some logs. I wanted 
 to get out some logs for him, — about 2,000,000 feet. I had the teams 
 and everything necessary to carry on logging. Mr. Goodale said that 
 he would let me have a contract to get out 2,000,000, but did not want 
 to have the contract made in my name; that the railroad company had 
 sued, and he was afraid that if the contract was in my name the com- 
 pany would make trouble; and he said, 'Why not make it in the name 
 of George?' (meaning G. W. Handsaker). I told him that I did 
 not want to bother George. Goodale said it would not be any trouble 
 to him; that I could go on and carry on the contract just the same. 
 I said I could see George about it, and I did speak to George about 
 it, and he said, so long as he would not be bothered in any way, he 
 would assist me in the matter ; and it was agreed between Mr. Goodale, 
 Mr. Handsaker and myself that the contract should be drawn up and 
 signed by G. W. Handsaker, and that I should carry it out, and that 
 it should be my contract, and not the contract of G. W. Handsaker, and 
 that Mr. Handsaker should not be bound by the contract. Under this 
 agreement the contract was drawn up and signed by Mr. Handsaker 
 and Goodale, and I did the work that was done under it." This, with 
 other testimony of the same nature, all elicited over defendant's objec- 
 tion, form the basis of the principal grounds of error relied upon for 
 the reversal of the judgment below. 
 
 WoLVERTON, J. : "The question is here presented whether it is com- 
 petent to show by parol testimony that a contract executed by and in 
 the name of an agent is the contract of the principal, where the prin- 
 cipal was known to the other contracting party at the date of its ex- 
 ecution. There are two opinions touching the question, among Amer- 
 ican authorities — the one affirming, and the other denying; but the case 
 is one of first impression here, and we feel constrained to adopt the 
 rule which may seem the more compatible with the promotion of jus- 
 tice, and the exaction of honest and candid transactions between in- 
 dividuals. The English authorities are agreed that parol evidence is 
 admissible to show that a written contract executed in the name of an 
 agent is the contract of the principal, whether he was known or un- 
 known; and the American authorities are a unit, so far as the rule is 
 applied to an unknown principal, but disagree where he was known at 
 the time the contract was executed or entered into by the parties. All 
 the authorities, both English and American, concur in holding that, as 
 applied to such contracts executed when the principal was unknown, 
 parol evidence which shows that the agent who made the contract in 
 his own name was acting for the principal does not contradict the writ- 
 ing, but simply explains the transaction; for the effect is not to show 
 
624 PAROL EVIDENCE RULE, NO. 561. 
 
 that the person appearing to be bound is not bound, but to show that 
 some other person is bound also. And those authorities which deny 
 the application of the rule where the principal was known do not as- 
 sert or maintain that such parol testimony tends to vary or contradict 
 the written contract, but find support upon the doctrine of estoppel; 
 it being maintained that a party thus dealing with an agent of a 
 known principal elects to rely solely upon the agent's responsibility, 
 and is therefore estopped to proceed against the principal. The under- 
 lying principle, therefore, upon which the authorities seem to diverge, 
 is the presumption created by the execution of the contract in the name 
 of the agent, and the acceptance thereof by a party, where the prin- 
 cipal is known. Is this presumption conclusive, or is it disputable? 
 Without attempting to reconcile the decisions, we believe the better 
 rule to be that the presumption thus created is a disputable one, and 
 that the intention of the party must be gathered from his words, and the 
 various circumstances which surround the transaction, as its practical 
 effect is to promote justice and fair dealing. — The principal may have 
 recourse to the same doctrine to bind the party thus entering into 
 contract with his agent. Parol evidence, however, is not admissible to 
 discharge the agent, as the party with whom he has dealt has his elec- 
 tion as to whether he will hold him or the principal responsible. 
 
 "Now, looking to the contract which is the basis of the cause of ac- 
 tion under consideration, we find that it was executed in manner and 
 form as requested by the defendant, and to subserve a special purpose 
 peculiar to his own interest, with the express avowal that it should be 
 treated as the contract of plaintiff, although executed in the name of 
 Handsaker, the agent. It is further disclosed that both the de- 
 fendant and the plaintiff afterwards so treated it; the plaintiff pro- 
 ceeding under it, and in obedience with the terms and conditions there- 
 of, in cutting, hauling and banking the logs preparatory to delivery, and 
 the defendant by making payments to him from time to time, some- 
 times directly, and sometimes through Handsaker, the agent. This is 
 ratification, and constitutes a very significant feature of the inquiry. 
 Aside from this, the contract discloses upon its face that a part of the 
 consideration for these logs moved directly from defendant to plaintiff. 
 Under these attendant circumstances, and others which might be al- 
 luded to, we think the Court committed no error in admitting the testi- 
 mony to show who were the real parties to the contract, as well as 
 to explain how the clause touching the $I,70P came to be placed there- 
 in."i 
 
 I — Compare the authorities cited in W., § 2438. 
 
No. 563, B. VARYING THE TERMS OF A DOCUMENT. 625 
 
 FOSTER V. JOLLY (1835). 
 I C.M.&- R. 70s. 
 
 Assumpsit by the payee against the maker of a promissory note 
 for 12I., payable fourteen days after date. Plea, the general issue. 
 At the trial before GurneYj B., at the last assizes for the county 
 *"" of Lancaster, it appeared that Samuel Milnes, the brother-in-law 
 of the defendant, being agent for a co-operative society, and having 
 ordered goods for the society from a person named Walker, which had 
 not been paid for, the plaintiff, as the attorney of Walker, sued Milnes 
 for the amount. Milnes then gave the names of certain members of the 
 society, who were also sued for the debt and a verdict obtained. Milnes 
 also gave a cognovit, and, judgment being entered up, he was taken on 
 a ca. sa., and while in prison, the defendant gave the note in question 
 for the amount of the demand against Milnes. The defendant now 
 proposed to show, that the note was given under an agreement that 
 it should not be enforced, in case Walker should obtain a verdict in the 
 action against the members of the co-operative society. On the part 
 of the plaintiff, it was objected that parol evidence of the agreement 
 was inadmissible to vary the terms of the written instrument, and also 
 that the agreement was that the note should not be put in suit, only 
 in case Walker obtained the fruits of his verdict. The learned Judge, 
 however, admitted the evidence, giving the plaintifif leave to move to 
 enter a verdict for 12I., if the Court should be of opinion that the evi- 
 dence was inadmissible. . . . 
 
 Lord Abinger, C. B. : "At the commencement of the argument, I 
 felt some doubt, whether this might not be regarded as a question of 
 consideration; but the reasoning of Mr. Wightman has placed it in 
 another light, and I am of opinion that 'the evidence tendered by the 
 defendant went to vary the contract appearing on the face of the note. 
 It is not a question of consideration, or collateral security. The con- 
 sideration of the instrument was not impeached, nor was it given as 
 a collateral security, but the defence attempted to be established was 
 in direct contradiction of the terms of the note. The maker of a note 
 payable on a day certain cannot be allowed to say, T only meant to 
 pay you upon a contingency,' that is at variance with his own writ- 
 ten contract."'' 
 
 THOMPSON v. CLUBLEY (1836). 
 
 I M. & IV. 212. 
 
 Assumpsit, by the endorsee against the acceptor of a bill of ex- 
 change for 200I. drawn by one H. R., payable to his own order, and 
 by him endorsed to the plaintifif. Plea, that the bill of ex- 
 change was wholly made by H. R., at the request and for and 
 
 2 — Compare the authorities cited in W., % 2444; and the doctrine of Nos. 533, 534, 
 
 ante. 
 
626 PAROL EVIDENCE RULE. No. 563. 
 
 by way of accommodation of and for the plaintiff, and was accepted by 
 the defendant, at the request of H. R., for and by way of like accom- 
 modation of and for the plaintiff; and that at the time of making and 
 accepting the said bill of exchange, it was expressly agreed by 
 and between the said parties, that if the said bill of exchange 
 should happen to be outstanding at the time when it became 
 due, it should be taken up and paid by the plaintiff, and that no claim 
 or demand should at any time be made against the defendant or H. R., 
 upon or in respect of it; concluding with a verification. Replication,, 
 that before and at the time of the commencement of suit, the plaintiff 
 was, and still is, the holder of the said bill of exchange for good and: 
 sufficient consideration, in respect of his being the holder thereof:, 
 without this, that the bill was either made or accepted by way of ac- 
 commodation of or for the plaintiff, or that it was agreed by or between 
 the parties, in manner and form as the defendant has above in the same 
 plea in that behalf alleged; concluding to the country. 
 
 The case came on for trial at the sittings after Easter term, before 
 Lord Abinger, C. B., when the defendant, in support of his plea, called 
 H. R., who stated that in the spring of 1833 he had occasion to raise 
 money, and having applied! to an attorney to assist him, it was arranged 
 between him and the plaintiff that the witness should give him the 
 bill on which the present action was brought, but which should be 
 taken up by the plaintiff, and that witness should receive bills of like 
 value from the plaintiff, for which witness was to provide; and that 
 the defendant had not received any value for his acceptance. It was 
 objected on the part of the plaintiff, that this evidence was inadmissible, 
 as it went to contradict the written contract of acceptance, which 
 purported to be an absolute engagement to pay the bill; whereas it 
 was proposed to show that the acceptor was not to pay it, but that the 
 plaintiff, who was the endorsee, was to take it up, and not to sue the 
 acceptor ; the effect of which was to make an entirely different contract. 
 Foster v. Jolly, i C, M. & R. 709, was relied upon as in point; but 
 the objection was overruled. . . . 
 
 Per Curiam : "This defence was clearly admissible, inasmuch as 
 it showed that the acceptance was in truth for the accommodation of 
 the plaintiff, and that all the parties put their names to the bill without 
 consideration. With regard to the evidence being inconsistent with the 
 terms of the instrument, w^e are of opinion that the agreement as to 
 payment was collateral, and not part of the original contract. It was 
 a collateral agreement, that the plaintiff would not enforce the contract 
 upon the bill."^ 
 
 GOSS v. LORD NUGENT (1833). 
 5 B. &■ Ad. 58. 
 Denman, C. J. : "By an agreement in writing, the plaintiff con- 
 
 3 — Compare the authorities cited in W., §§ 2444, 2445. 
 
No. 565. B. VARYING THE TERMS OF A DOCUMENT. 627 
 
 tracted to sell the defendant several lots of land for the sum of £450, 
 and to make a good title to them ; and £80 was paid to him as a de- 
 ^®* posit. It was afterwards discovered, that, as to one of the lots, a 
 good title could not be made; and it was then subsequently agreed 
 by the defendant, that he would waive the necessity of a good title 
 being made as to that lot; and the plaintiff afterwards delivered pos- 
 session of the whole of the lots to the defendant, which he accepted, 
 but now refuses to pay the remainder of the purchase-money, and he 
 relies on the objection to the title. By the general rules of the com- 
 mon law, if there be a contract which has been reduced into writing, 
 verbal evidence is not allowed to be given of what passed between 
 the parties, either before the written instrument was made, or during 
 the time that it was in a state of preparation, so as to add to or sub- 
 tract from, or in any manner to vary or qualify the written contract; 
 but after the agreement has been reduced into writing, it is competent 
 to the parties, at any time before breach of it, by a new contract not 
 in writing, either altogether to waive, dissolve, or annul the former 
 agreements, or in any manner to add to, or subtract from, or vary or 
 qualify the terms of it, and thus to make a new contract; which is 
 to be proved, partly by the written agreement, and partly by the subse- 
 quent verbal terms engrafted upon what will be thus left of the writ- 
 ten agreement. And if the present contract was not subject to the 
 control of any act of Parliament, we think that it would have been 
 competent for the parties, by word of mouth, to dispense with re- 
 quiring a good title to be made to the lot in question, and that the 
 action might be maintained. But the Statute of Frauds has made cer- 
 tain regulations as to contracts for the sale of lands. We think the 
 object of the Statute of Frauds was to exclude all oral evidence as to 
 contracts for the sale of lands, and that any contract which is sought 
 to be enforced must be proved by writing only. But, in the present 
 case, the written contract is not that which is sought to be enforced, 
 it is a new contract which the parties have entered into, and that new 
 contract is to be proved, partly by the former written agreement, and 
 partly by the new verbal agreement. . . . The contract ... is not 
 wholly a contract in writing."* 
 
 ASHLEY v. ASHLEY (1855). 
 4 Gray 191. 
 
 Shaw, C. J.: "This is an action brought to recover damages for 
 
 a disturbance of the plaintiff's easement, in stopping a water course 
 
 through land of the defendant, by which the plaintiff's land 
 
 ""* was rendered wet and unproductive, and by which a right of 
 
 way in other land of the defendant was rendered miry and impassable. 
 
 4 — Compare the authorities cited in W., § 2441, 
 
628 PAROL EVIDENCE RULE. No. 565. 
 
 ... It appeared that the plaintiff's lot had been set off to his 
 mother, as dower, that the plaintiff took a share in the reversion by- 
 descent, and had acquired the rights of the other heirs by purchase. . . . 
 The plaintiff, in order to establish the right of way, alleged in his 
 declaration, to have been disturbed by the stopping of the drain or 
 watercourse, relied on a parol reservation made by his mother, at the 
 time of selling the land, under a license of court, as administratrix 
 of her husband, for the payment of debts; and offered to show that 
 when the deed was made by the administratrix to the defendant, there 
 being no way reserved, the defendant assured her or her agent that she 
 should have a right of way for the use of her lot, now held by the 
 plaintiff, as if it were reserved. The judge had ruled that, by force 
 and effect of the deed given by the administratrix to the defendant, 
 he had the land free from any servitude in favor of the upper lot, or any 
 right to a watercourse over that of the defandant; and that, if such 
 servitude existed at all, it had arisen since that time, by adverse use 
 and enjoyment for the term of twenty years. Upon this point, the 
 evidence offered by the plaintiff was, that when the agent of the ad- 
 ministratrix delivered to the defendant the deed, he stated that it re- 
 served no right of way to her own lot, and that the defendant then 
 said she might pass over the land as much as she pleased, as much as 
 if the right of way was in the deed. Here the question was whether 
 the right of way could be established by twenty years' adverse, con- 
 tinued and uninterrupted enjoyment. The judge, against the objection 
 of the defendant, held that this evidence was competent, not because 
 a right of way can be created by a parol grant, but to show that the 
 plaintiff commenced the actual use of the way under a claim of right. 
 The Court are of opinion that this was correct, for the purpose and 
 to the extent, to which it was limited."' 
 
 2. Judicial Acts, 
 a. Record of a Judgment. 
 
 Sir F. Pollock and Mr. F. W. Maitland, History of the English 
 Law, II, 666 (1895) : "The distinction that we still draw between 'courts 
 of record' and courts that are 'not of record' takes us back to very 
 """ early times when the King asserts that his own word as to all that 
 has taken place in his presence is incontestible. This privilege he com- 
 municates to his own special court; its testimony as to all that is done 
 before it is conclusive. If any question arises as to what happened on 
 a previous occasion the justices decide this by recording or bearing 
 record (recordantur, portant recordum). Other courts, as we have 
 lately seen, may and, upon occasion, must bear record ; but their records 
 
 5 — Compare the authorities cited in W., § 2446. 
 
No. 567. JUDICIAL ACTS — RECORD OF A JUDGMENT. 629 
 
 are not irrefragable; the assertions made by the representative dooms- 
 men of the shire-moot may be contested by a witness who is ready to 
 light. We easily slip into saying that a court whose record is incon- 
 trovertible is a court which has record {habet recordum) or is a court 
 of record, while a court whose record may be disputed has no record 
 (non habet recordum) and is no court of record. In England only 
 the King's court — in course of time it becomes several courts — is a 
 court of record for all purposes, though some of the lower courts 'have 
 record' of some particulars, and sheriffs and coroners 'have record' 
 of certain transactions, such as confessions of felony. In the old days, 
 when as yet there were no plea rolls, the justices when they bore record 
 relied upon their memories. From Normandy we obtain some elaborate 
 rules as to the manner in which record is to be borne or made; for 
 example a record of the Exchequer is made by seven men, and, if six 
 of them agree, the voice of the seventh may be neglected. In England 
 at a yet early time the proceedings of the royal court were committed 
 to writing. Thenceforward the appeal to its record tended to become 
 a reference to a roll, but it was long before the theory was forgotten 
 that the rolls of the court were mere aids for the memories of the 
 justices; and as duplicate and triplicate rolls were kept there was al- 
 ways a chance of disagreement among them. A line is drawn between 
 'matter of record' and 'matter in pays' or matter which lies in the 
 cognizance of the country and can therefore be established by a verdict 
 of jurors."" 
 
 SAYLES v. BRIGGS (1842). 
 4 Mete. 421, 423. 
 
 Trespass upon the case for malicious prosecution. The declaration 
 contained three counts, charging three distinct prosecutions of the 
 plaintiff by the defendant. ... To support the third count, the 
 ""' plaintiff gave in evidence a complaint to a magistrate, signed and 
 sworn to by the defendant, charging the plaintiff with forging a record 
 of a magistrate; but he did not give in evidence any warrant issued 
 on said complaint, nor prove that he was arrested and held to answer 
 to the complaint, except by parol testimony. The plaintiff was arraigned 
 
 6 — Coke upon Littleton, 260 (1628): any end of controversies, which should 
 
 "Recordum is a. memorial or remem- be inconvenient." 
 
 ■farance in rolles of parchment of the pro- L. C. J. Mansfield, in Jones v. Ran- 
 
 ceedings and acts of a Court of justice. dall, Cowp. 17 (1774): "The minutes 
 
 . . . And the rolles, being the records of the judgment are the solemn judg- 
 
 or memorialls of the judges of Courts of ment itself." 
 
 record, import in them such incontrol- Nisbet, J., in Bryant v. Owen, 1 Ga. 
 
 lable credit and veritie as they admit no 355, 367 (1846): "The record is tried 
 
 ■averment, plea, or proofs to the contrarie; by inspection; and if the judgment does 
 
 . . . and the reason hereof is apparent, not there appear, the conclusion is that 
 
 for otherwise [as our old authors say, none has been rendered." 
 and that truly] there should never be 
 
630 PAROL EVIDENCE RULE. No. 567., 
 
 before a justice of the peace, who made the following record, and 
 no other, of the proceedings before him: "Berkshire ss. At a jus- 
 tice's court holden before me, at house of Franklin Bartlett, in Adams, 
 on Wednesday, 13th day of February 1839, at one of the clock in the 
 afternoon. Commonwealth vs. Franklin O. Sayles, on the complaint of 
 Peter Briggs, Esq., for forgery. After full hearing in the case, the 
 complainant withdrew his prosecution, and it was thereupon ordered 
 by me the said justice, that the said Franklin O. be discharged." The 
 plaintiff offered parol testimony of the said justice and others, that 
 he was arraigned on all the aforesaid complaints, and pleaded to the 
 same, and that a hearing thereon was had before said justice, who 
 discharged the plaintiff. The defendant objected to the admission of 
 this testimony. But, as it appeared that no record had been made, 
 by said justice, of the proceedings had before him, except that above 
 set forth; and as it further appeared that said justice was no longer 
 a justice of the peace under the commission held by him at the time 
 of the trial and hearing of said cases before him, and that he had de- 
 clined to qualify himself as a justice under a new commission which 
 he had since received, and' had also declined to make any further record 
 in relation to said proceedings; the judge, before whom the trial was 
 had, ruled that it was competent for the plaintiff to introduce parol 
 evidence, if not contradictory to said record, to prove the issuing of 
 the warrant on the third complaint, and also that the plaintiff was 
 arraigned on all said complaints, and pleaded to the same, and that, 
 upon a hearing before said justice, he was, by said justice, discharged 
 therefrom. The proposed evidence was thereupon admitted, and a 
 general verdict was returned for the plaintiff, which is to be set aside, 
 and a new trial granted, if said ruling was erroneous. 
 
 Hubbard, J.: "A record is a memorial or history of the judicial 
 proceedings in a case, commencing with the writ or complaint, and 
 terminating with the judgment, and the design is, not merely to settle 
 the particular question in difference between the parties, or the govern- 
 ment and the subject, but to furnish fixed and determinate rules and 
 precedents for all future like cases. A record, therefore, must be pre- 
 cise and clear, containing proof within itself of every important fact 
 on which the judgment rests; and it cannot exist partly in writing and 
 partly in parol. Its allegations and facts are not the subject of con- 
 tradiction. They are received as the truth itself, and no averment can 
 be made against them nor can they be varied by parol. . . . 
 
 "But records, like other documents, are exposed to casualties, and, 
 like them, may also be misplaced or lost; or owing to the accidents 
 which continually occur, the record may not, in a given instance, have 
 been extended from the minutes of the proceedings. And the cases are 
 abundant to show that a lost record, like a lost deed, may be proved 
 by parol; and that the minutes may be introduced, where the record 
 has not been drawn out in extenso, as containing the elements of the 
 
No. 568. B. VARYING THE TERMS OF A DOCUMENT. 631 
 
 record, and, in truth, for the time being, the record itself. . . . But in 
 the present case, no facts or circumstances were introduced tending to 
 prove either the loss of records, or the existence of any other record 
 than the one produced; nor any minutes, from which another record 
 might be completed. On the other hand, it appears that no record, 
 other than the one in evidence, was ever made, and that no minutes 
 were taken, at the time of the alleged trial, from which such further rec- 
 ord could be made. It is impracticable, therefore, to support the in- 
 troduction of this testimony on the ground that the record or a part of 
 it was lost. 
 
 "Again, it is argued that this testimony should be received from 
 necessity, as there is no way by which the plaintiff can obtain re- 
 dress, and that this is the best evidence which now exists. But in my 
 judgment it will be productive of far less mischief for an individual 
 to suffer from the neglect or misfortune of an officer in not making a 
 judicial record than to establish a precedent that the record itself or 
 a part of it may be proved by parol, — that it may speak one language 
 to-day and another to-morrow, depending on the different witnesses 
 who are called or on their changing recollections. And without pre- 
 scribing a rule for a case where a magistrate might by the act of God 
 be deprived of the opportuunity of making even any minutes of pro- 
 ceedings before him from which a record could be made (if such a 
 case should ever occur), we are of opinion that the want of a judicial 
 record cannot be supplied by parol evidence; and that the rules which 
 apply to the admission of testimony to prove the contents of a lost 
 record, or to the introduction of minutes by which the record may be 
 extended, have no real bearing on a case like the' present, where no 
 such loss ever took place and no such minutes ever were made. A 
 party who is to be affected by the record will in the exercise of ordi- 
 nary care see that it is correctly made up; and if the officer should 
 neglect or refuse to perform his duty, he can be compelled by man- 
 damus to make a true record. 
 
 "There is, then, no record of an acquittal on the charge contained 
 in the second count, nor of the issuing of a warrant, or of an acquittal, 
 on the third count; and, for the reasons given, the want of such a 
 record cannot be supplied by parol proof." 
 
 PRUDEN v. ALDEN (1839). 
 23 Pick. 184, 187. 
 
 Writ of right, in which the demandants claimed title as heirs of 
 their father, Peleg Gulliver, who died seised of the demanded prem- 
 ises, in September 1806. The tenant claimed under a deed dated in 
 November 1807, from Salome Gulliver, who was the widow of 
 Peleg, and administratrix of his estate. This deed recited, that "a 
 
€32 PAROL EVIDENCE RULE. No. 568. 
 
 license was obtained by an order of the Court of Common Pleas, begun 
 and held at Plymouth, on the second Tuesday of August 1807, to make 
 sale of the real estate of said deceased, so far as should be necessary 
 to satisfy the just debts by him owing at the time of his death, and 
 for incidental charges." ... It appeared, that it was the practice of 
 the judge of probate, of the county of Plymouth, from 1807 to 1810, 
 to consult one of the judges of the Court of Common Pleas, at the 
 sittings of that court, in regard to the application for licenses, and 
 after obtaining his assent thereto, to hand the applications and the direc- 
 tions of the court respecting them, to the clerk at the close of the 
 terms, to be certified; that the clerk, at that time, had become care- 
 less and inattentive to his official duties, and a large portion of the 
 records was made up unskilfully by his wife; that the docket for the 
 August term 1807 was not to be found; that the present clerk, having 
 found the papers in his office to be irregularly and confusedly filed, 
 arranged them in order from the year 1800 to the time of his appoint- 
 ment; that on the files there are seven minutes for licenses for the 
 sale of real estate at the August term 1807, and as many records of 
 licenses granted for that purpose, but that no record is to be found 
 of any license granted to Salome Gulliver for that purpose, and no 
 minutes or application on the files, from which such a record might 
 be made up. . . . The demanded premises were sold to the tenant, at 
 the time and place mentioned in the notices posted up by Delano, the 
 sum named in the deed being the highest bid made therefor. If, upon 
 these facts, the Court should be of opinion, that the jury would be 
 authorized to find, that there was a legal license granted to sell the 
 estate, the demandants were to become nonsuit; otherwise, the tenant 
 was to be defaulted. 
 
 Shaw, C. J.: "It being very clear, that the administratrix could 
 make no valid sale, without a license, the title of the tenant depends 
 upon proof of such license. It is contended on the part of the de- 
 mandants, that there is no legal proof of such a license having been 
 granted. We think it may be admitted, as contended for by the de- 
 mandants, that a license by the Court of Common Pleas must be proved 
 by its records. But the Court are to take notice how the records of 
 their own and of other courts are in fact made and kept. The clerk 
 intrusted with the duty of keeping records, must of necessity take down 
 the doings of the court, in short and brief notes; this he usually does 
 in a minute book called the docket, from which a full, extended and 
 intelligible record is afterwards to be made up. But until they can 
 be made up, these short notes must stand as the record; and if, in the 
 mean time, through the death or sickness of the clerk, or other cas- 
 ualty, they are lost, it must be deemed a loss of the records, and sec- 
 ondary proof may be offered of their contents. ... In the present case, 
 the license relied upon is supposed to have been granted at the August 
 term, 1807, and is so recited in the deed to the tenant; and it is proved, 
 
No. 569. B. VARYING THE TERMS OF A DOCUMENT. 633 
 
 that the docket of that term is missing. The recital in the deed, cor- 
 roborated by many other circumstances, together with more than thirty 
 years' undisturbed possession by the tenant under a deed which could 
 only be good by force of such license, appears to the Court to be suffi- 
 cient proof of the existence and loss of the record, to let in secondary 
 evidence. And from the evidence thus offered, the Court are satisfied, 
 that such license was in fact granted, and some minute of it entered 
 by the clerk, which would have been sufficient to warrant him in mak- 
 ing up an extended record, according to the usual course of business 
 in his office."' 
 
 b. Verdict of a Jury. 
 
 ROBBINS v. WINDOVER (1802). 
 2 Tyl. II, 13. 
 
 Motion for new trial, stating that some of the Jurors of the Jury 
 who tried the cause, after the cause was submitted to them, witnessed 
 or related to others of the panel certain matters and things in 
 relation to the issue not witnessed or related on the trial of the 
 cause in Court. . . . Chauncey Langdon, for defendant, offered to read 
 the affidavit of one of the Jurors. To the reading of this affidavit an 
 objection was taken. . . . 
 
 Tyler, J.: "Upon the point in question, the Court are decidedly 
 of opinion, that the affidavit cannot be admitted to be read. The com- 
 mon law requires that the twelve jurors shall unite in a verdict. Who- 
 ever considers the variety and intricacy of causes they have to deter- 
 mine, the difficulty of bringing twelve persons of different habits and 
 modes of thinking, and of unequal abilities, fortuitously elected, to 
 concur in opinion, will perceive the wisdom of the Legislature in direct- 
 ing that their deliberations should be secret; for it was to be expected, 
 that in bringing about a union of sentiment in the panel, the subject 
 under consideration would be presented in various lights; that futile 
 objections would be met with inconclusive arguments, theory opposed 
 to practice, and legal science to common sense; that the reputations 
 of witnesses would be scanned, the character of parties too often ad- 
 verted to, and the whole investigation illustrated by relations of what 
 each juror had heard or known in cases supposed similar; that the 
 warmth of debate would excite an obstinacy of opinion, and a re- 
 luctant and tardy assent to the verdict, perhaps drawn from some one,, 
 which, on after reflection, might leave in the juror's mind a doubt of 
 its rectitude. It would be of dangerous tendency to admit jurors by 
 affidavit to detail these deliberations of the jury room, to testify to sub- 
 jects not perfectly comprehended at the time, or but imperfectly recol- 
 
 7 — Compare the authorities cited in W„ § 2450. 
 
634 PAROL EVIDENCE RULE. No. 569. 
 
 lected. From a natural commiseration for the losing party, or a desire 
 to apologize for the discharge of an ungrateful duty, after the juror 
 had been discharged from office,, he would be too apt to intimate, that 
 if some part of the testimony had been adverted to, or something not 
 in evidence omitted, his opinion would have been otherwise, whilst 
 others of the panel, with different impressions or different recollec- 
 tions, might testify favourably for the prevailing party. This would 
 open a novel and alarming source of litigation, and it would be diffi- 
 cult to say when a suit was terminated."' 
 
 HAAK v. BREIDENBACH (1817). 
 3 S.& R. 204. 
 
 Breidenbach, the plaintiff below, brought this action upon an arbi- 
 tration bond entered into by the defendant, on the 4th August 1786, 
 to abide the award of arbitrators for damages alleged to have 
 ^^® been done prior to that time, by the defendant, to the bark mill 
 and spring of the testator, by damming up a streamlet of water on the 
 defendant's land. The defendant pleaded no award; and recovery in a 
 former action in the Common Pleas of Dauphin county (in which 
 Lebanon county was then included), for the same cause of action. 
 The plaintiff replied, and set out the award for the payment of 120 
 pounds; and assigned for breach, the non-payment thereof. To the 
 second plea, he replied no such recovery. In support of the plea of a 
 former recovery, the defendant gave in evidence the record of a recov- 
 ery, in an action on the case against him brought to November Term 
 1788, by the testator in the court above mentioned, in which the dec- 
 laration was for damming up a stream of water on the defendant's 
 land, on the loth August 1785, by which the testator's bark mill and 
 spring were overflowed and injured, whereby he lost the profits and 
 advantages thereof, from the loth August 1785, to the 3d November 
 1788, when that suit was instituted. The plaintiff then offered the de- 
 position of Stacy Potts, one of the jurors who' tried the cause, to show, 
 that on that trial, the plaintiff waived all claim for damages from the 
 loth August 1785, to the 4th August 1786; that the jury was directed by 
 the court, on account of the arbitration, not to include that period of 
 time in estimating the damages, and that they therefore only included 
 the damages sustained subsequently to the 4th August 1786. This evi- 
 dence was objected to by the defendant, but admitted by the court, and 
 a bill of exceptions taken. . . . 
 
 TiLGHMAN, C. J.: "The question in this case in the court below, 
 was whether the plaintiff had recovered damages in a former action 
 for a nuisance continued from loth August 1785, to 4th August 1786. 
 In order to prove that he had, the defendant gave in evidence the rec- 
 
 8 — Compare the authorities cited in W., § 2349. 
 
No. 572. B. VARYING THE TERMS OF A DOCUMENT. 635 
 
 ord of a recovery in a former action, in which a continuando was laid, 
 including the time in dispute. On the other hand, the plaintiff offered 
 and the court admitted parol evidence to show that on the trial of the 
 former action the plaintiff gave up part of the time laid in the continu- 
 ando, Viz., from loth August 1785, to' 4th August 1786, and received 
 damages only for a time prior to loth August 1785. The error assigned 
 is in the admission of the parol evidence. In trespass with a continu- 
 ando, the plaintiff may waive the continuando, and prove a trespass at 
 any time before the suit brought, or he may give evidence which goes 
 to only part of the time laid in the continuando. ... If the plaintiff 
 did not in truths recover in the former action for the time between loth 
 August 1785, and 4th August 1786, he will suffer wrong unless he re- 
 covers in this action. And if he might, on the former trial, confine 
 himself to part of the time laid in the continuando, I see not why he 
 may not now be permitted to show that he did not confine himself, be- 
 cause this evidence does not contradict the record. Inasmuch, then, as 
 the justice of this case could not be obtained but by admission of the 
 parol evidence, I am of opinion that it was properly admitted and that 
 the judgment should be affirmed."' 
 
 VAISE v. DELAVAL (1785). 
 I T. R. II. 
 
 Motion by Law for a rule to set aside a verdict, upon an affidavit 
 of two jurors, who swore that the jury, being divided in their opinion, 
 
 tossed up, and that the plaintiff's friends won. 
 ""'• Lord Mansfield, C. J.: "The Court cannot receive such an 
 
 affidavit from any of the jurymen themselves, in all of whom such con- 
 duct is very high misdemeanor. But in every such case the Court must 
 derive their knowledge from some other source; such as from some 
 person having seen the transaction through a window, or by some such 
 other means."^" 
 
 WRIGHT V. TELEGRAPH CO. (1866). 
 20 la. ip5, 210. 
 
 Suit to recover damages for the injury sustained hy him on 
 
 account of the casualties aforesaid. The cause was tried to a jury and 
 
 resulted in a verdict of three hundred and forty-five dollars and 
 
 sixty-six cents for plaintiff. The defendant moved for a new 
 
 trial, based mainly upon alleged erroneous giving and refusing in- 
 
 9 — Compare the authorities cited in W., misconduct] cannot be received. It is 
 
 5§ 2351. 2349. n. s. singular indeed that almost the only evi- 
 
 10 — Mansfield, C. J., in Owen v. War- dence of which the case admits should be 
 
 burton, i B. & P. N. R. 326, 329 (1807): shut out; but considering the arts which 
 
 "The affidavit of a juryman [to a jury's might be used if a contrary rule Were 
 
636 PAROL EVIDENCE RULE. No. 572. 
 
 structions, misconduct of the jury, and ne^yly discovered evidence. In 
 support of the alleged misconduct of the jury, the defendant filed the 
 affidavits of four of the jurors who tried the cause. Each affidavit 
 stated, in substance, that, in order to arrive at the plaintiff's damages, 
 it was agreed that each juror should mark down such sum as he 
 thought proper to allow; that the aggregate should be divided by 
 twelve, and the quotient should be the verdict; which agreement was 
 carried out by each juror, and the quotient thus obtained was returned 
 to the court as the verdict of the jury. The plaintiff then moved to 
 strike the affidavits of the jurors from the files, because they could 
 not be read as evidence in support of the motion for a new trial. 
 This motion to strike was sustained and the motion for a new trial 
 overruled. The defendant excepted and appeals. 
 
 CoLEj J.: "The first question presented by the transcript, and 
 argued by counsel, is, whether affidavits of jurors may be read in 
 support of a motion for a new trial, based upon the alleged miscon- 
 duct of the jury, in the manner of arriving at the verdict. . . . 
 
 "While we do not feel entirely confident of its correctness, nor 
 state it without considerable hesitation, yet we are not without that 
 assurance which, under the circumstances, justifies us in laying down 
 the following as the true rule: That affidavits of jurors may be re- 
 ceived for the purpose of avoiding the verdict, to show any matter oc- 
 curring during the trial or in the jury room, which does not essentially 
 inhere in the verdict itself, as that a juror was improperly approached 
 by a party, his agent, or attorney; that witnesses or others conversed 
 as to the facts or merits of the cause, out of court and in the pres- 
 ence of jurors; that the verdict was determined by aggregation and 
 average or by lot, or game of chance or other artifice or improper man- 
 ner; but that such affidavit to avoid the verdict may not be received 
 to show any matter which does essentially inhere in the verdict itself, 
 as that the juror did not assent to the verdict; that he misunderstood 
 the instructions of the Court; the statements of the witnesses or the 
 pleadings in the case; that he was unduly influenced by the state- 
 ments or otherwise of his fellow jurors, or mistaken in his calculations 
 or judgment, or other matter resting alone in the juror's breast. That 
 the verdict was obtained by lot, for instance, is a fact independent of 
 the verdict itself, and which is not necessarily involved in it. While 
 every verdict necessarily involves the pleadings, the evidence, the in- 
 structions, the deliberation, conversations, debates, and judgments of 
 the jurors themselves; and the effect or influence of any of these upon 
 the juror's mind, must rest in his own breast, and he is and ought to 
 
 to prevail, we think it necessary to ex- parties, and not being able to bring over 
 elude such evidence. If it were un- his companions to bis opinion, might pro- 
 derstood to be the law that a juryman pose a decision by lot, with a view after- 
 might set aside a verdict by such evl- wards to set aside the verdict by his own 
 dence, it might sometimes happen that a, affidavit, if the decision should be against 
 juryman, being a friend to one of the him." 
 
No, 572. B, VARYING THE TERMS OF A DOCUMENT. 637 
 
 be concluded thereon by his solemn assent to and rendition of the ver- 
 dict {veredictum — a true declaration). To allow a juror to make affi- 
 davit against the conclusiveness of the verdict by reason of and as to 
 the effect and influence of any of these matters upon his mind, which 
 in their very nature are, though untrue, incapable of disproof, would 
 be practically to open the jury room to the importunities and appli- 
 ances of parties and their attorneys, and, of course, thereby to unsettle 
 verdicts and destroy their sanctity and conclusiveness. But to receive 
 the affidavit of a juror as to the independent fact that the verdict was 
 obtained by lot, or game of chance, or the like, is to receive his testi- 
 mony as to a fact, which, if not true, can be readily and certainly dis- 
 proved by his fellow jurors; and to hear such proof would have a 
 tendency to diminish such practices and to purify the jury room, by 
 rendering such improprieties capable and probable of exposure, and 
 consequently deterring jurors from resorting to them. . . . While it is 
 certainly illegal and reprehensible in a juror, to resort to lot or the 
 like to determine a verdict, which ought always to be the result of 
 a deliberate judgment, yet such resort might not evince more turpi- 
 tude tending to the discredit of his statement than would be evinced 
 by a person not of the jury, in the espionage indicated by Lord Mans- 
 field and necessary to gain a knowledge of the facts to enable him 
 to make the affidavit. At all events the superior opportunities of 
 knowledge and less liability to mistake, which the juror has over the 
 spy, would entitle his statement to the most credit. And if, as is uni- 
 versally conceded, it is the fact of improper practice, which avoids the 
 verdict, there is no reason why a Court should close its ears to the 
 evidence of it from one class of persons, while it will hear it from 
 another class, which stands in no more enviable light and is certainly 
 no more entitled to credit. Nor does the consideration of the affi- 
 davits of jurors, for the purposes stated, contravene sound public pol- 
 icy. It is true, however, that public policy does require that when a 
 juror has discharged his duty and rendered a verdict, such verdict 
 should remain undisturbed and unaffected by any subsequent change of 
 opinion upon any fact or pretext whatever; and, therefore, a juror 
 should not be heard to contradict or impeach that which, in the legiti- 
 mate discharge of his duty, he has solemnly asseverated. But when 
 he has done an act entirely independent and outside of his duty and 
 in violation of it and the law, there can be no sound public policy 
 which should prevent a Court from hearing the best evidence of which 
 the matter is susceptible, in order to administer justice to the party 
 whose rights have been prejudiced by such unlawful act. In other 
 words, public policy protects a juror in the legitimate discharge of 
 his duty, and sanctifies the result attained thereby; but if he steps 
 aside from his duty, and does an unlawful act, he is a competent wit- 
 ness to prove such fact, and thereby prevent the sanction of the lav/ 
 from attaching to that which would otherwise be colorably lawful. 
 
638 PAROL EVIDENCE RULE. NO, 672. 
 
 "We are, therefore, of the opinion that the District Court erred in 
 striking from the files and refusing to consider the affidavits of the four 
 jurors, that the verdict was determined by each juror marking down 
 such sum as he thought fit, and dividing the aggregate by twelve and 
 taking the quotient as their verdict, pursuant to a previous agreement 
 to accept it as such. These affidavits, uncontradicted, are sufficient to 
 sustain the motion to set aside the verdict and grant a new trial."^ 
 
 REX V. WOODFALL (1770). 
 5 Burr. 2661, 266^. 
 
 Lord, Mansfield, C. J.: "This comes before the court upon two 
 rules: the first (obtained by the defendant) 'To stay the entering up 
 judgment on the verdict in this cause'; the second (obtained 
 "''* by the attorney general,) 'That the verdict may be entered ac- 
 cording to the legal import of the finding of the jury.' The last rule 
 must, from the nature of it, be first discussed; because the ground of 
 argument upon the other cannot be settled, till this is disposed of. . . . 
 The prosecution is an information against the defendant, for printing 
 and publishing a libel, in the Public Advertiser, signed 'Junius'; the 
 tenor of which is set out, with proper averments as to the meaning of 
 the libel, the subject-matter, and the persons, concerning which and 
 of whom it speaks; with innuendoes filling up all the blanks, and the 
 usual epithets. . . . There was no doubt but that the evidence, if cred- 
 ited, amounted to proof of printing and publishing by the defendant. 
 ... I directed the jury . . . that where an act in itself indifferent, 
 if done with a particular intent becomes criminal; there the intent 
 must be proved and found: but where the act is in itself unlawful, (as 
 in this case), the proof of justification or excuse lies on the defendant; 
 and in failure thereof, the law implies a criminal intent. The jury 
 staid out a great while, many hours. At last they came to my house; 
 (the objection of its being out of the county being cured by consent). 
 In answer to the usual question put by the officer, the foreman gave 
 their verdict in these words — 'Guilty of the printing and publishing, 
 only.' Nothing more passed. The officer has entered up the verdict 
 literally; without so much as adding the usual words of reference, to 
 connect the verdict with the matter to which it related. Upon this, the 
 two rules I have stated were moved for. Upon that obtained by the 
 Attorney General, the affidavit of a juror was offered by the counsel 
 for the defendant. But we were all of opinion, that it can not be re- 
 ceived. . . . Where there is a doubt, upon the judge's report, as to what 
 passed at the time of bringing in the verdict, there the affidavits of jurors 
 
 I — Compare the authorities cited in W., S 2354. 
 
No. 574. B. VARYING THE TERMS OF A DOCUMENT. 639 
 
 or bystanders may be received, upon a motion for a new trial or to rectify 
 a mistake in the minutes; but an affidavit of a juror never can be read as 
 to what he then thought or intended. ... No argument can be urged for 
 omitting the word 'only' which toes not prove that it can have no effect 
 though inserted; and therefore it is a question of law upon the face 
 of the verdict. . . . The question is whether any meaning can be put 
 upon the word 'only/ as it stands upon the record, which will affect 
 the verdict. ... It is impossible to say with certainty what the jury 
 really did mean. Probably they had different meanings. If they could 
 possibly mean that which, if expressed, would acquit the defendant, 
 he ought not to be concluded by the verdict. ... If a doubt arises from 
 an ambiguous and unusual word in the verdict, the Court ought to lean 
 in favor of a venire de novo,"^ 
 
 CAPEN v. STOUGHTON (i860). 
 16 Gray 364. 
 
 Petition entered at April term 1858 of the court of common pleas 
 in Norfolk, setting forth that in November 1856 a town way was laid 
 out over the land of the petitioners in Stoughton, and damages 
 *'* assessed therefor, by which the petitioners were aggrieved, and 
 the county commissioners, upon their application and after due notice, 
 issued a warrant for a reassessment of the damages by a jury; that 
 a jury was empanelled and the case tried before) them ; that blank forms 
 of verdict for the petitioners and for the respondents were handed to 
 them by the sheriff; that the jury agreed upon and filled out a ver- 
 dict for the petitioners, but through mistake omitted to sign it, and 
 signed a verdict for the respondents; that both verdicts were sealed up 
 in one envelope and returned into the court of common pleas; that the 
 petitioners received information from some of the jurors that the" 
 verdict returned was in their favor, and so told their counsel, and he, 
 relying on this information, without inspecting the verdict, moved the 
 court at December term 1857 to accept it, and it was accepted and 
 ordered to be certified to the county commissioners. The prayer of 
 the petition was that this judgment should be vacated, the case brought 
 forward on the docket, and leave given the petitioners to sue out a writ 
 of review. Sanger, J., ruled that, assuming all the facts stated in 
 the petition to be true, the petitioners were not legally entitled to the 
 reUef prayed for, and the court had no discretionary power to grant it; 
 and dismissed the petition. The petitioners alleged exceptions, which 
 were argued in January 1859, and sustained, and the case remitted. . . . 
 
 2 — Compare No. 631, post. 
 
640 PAROL EVIDENCE RULE. No. 574. 
 
 A hearing was had in the court of common pleas at April term 
 1859, at which- Aiken, J., against the objection of the respondents, 
 allowed three of the persons who had composed the sheriff's jury to 
 testify that, after agreeing on a verdict for the petitioners and filling 
 up a blank form accordingly, the jury by mistake signed the form 
 of verdict for the respondents; and ordered the former case to be 
 brought forward on the docket, and the acceptance of the verdict to 
 be vacated as prayed for. The respondents alleged exceptions to the 
 admission of the testimony of the jurors. 
 
 BiGELOw, C. J.: "We think this case differs essentially from those 
 cited by the counsel for the respondents, in which it has been held, 
 that the testimony of jurors is inadmissible in support of a motion to 
 set aside a verdict on the ground of mistake, irregularity or miscon- 
 duct of the jury, or of some one or more of the panel. It has been 
 settled upon sound considerations of public policy that mistake of the 
 testimony, misapprehension of the law, error in computation, irregular 
 or illegal methods of arriving at damages, unsound reasons or improper 
 motives, misconduct during the trial or in the jury room, cannot be 
 shown by the evidence of the jurors themselves, as the ground of dis- 
 turbing a verdict, duly rendered. . . . But in the present case the mis- 
 take which is proved by the testimony of the jurors is of a different 
 character. It is not one connected with the consultations of the jury, 
 or the mode in which the verdicts were arrived at or made up. No 
 fact or circumstance is offered to be proved, which occurred prior to 
 the determination of the case by the jury and their final agreement 
 on the verdict which was to be rendered by them. But the evidence 
 of the jurors is offered only to show a mistake, in the nature of a 
 clerical error, which happened after the deliberations of the jury had 
 ceased, and they had actually agreed on their verdict. The error con- 
 sisted, not in making up their verdict on wrong principles or on a mis- 
 take of facts, but in an omission to state correctly in writing the 
 verdict to which they had, by a due and regular course of proceeding, 
 •honestly and fairly arrived. . . . No considerations of public policy 
 require that the uncontradicted testimony of jurors to establish an 
 error of this nature should be excluded. Its admission does not in any 
 degree infringe on the sanctity with which the law surrounds the de- 
 liberations of juries, or expose their verdicts to be set aside through 
 improper influences, or upon grounds which might prove dangerous to 
 the purity and steadiness of the administration of public justice. On 
 the contrary, it is a case of manifest mistake, of a merely formal and 
 clerical character, which the Court ought to interfere to correct, in 
 order to prevent the rights of parties from being sacrificed by a blind 
 adherence to a rule of evidence, in itself highly salutary and reason- 
 able, but which upon principle has no application to the present case."* 
 
 3 — Compare the authorities cited in W., §§2355, 2356. 
 
No. 575. B, VARYING THE TERMS OF A DOCUMENT, 641 
 
 LOW'S CASE (1827). 
 4. Me. 439. 
 
 An indictment was found at the last April term in this county, 
 against this defendant, for the alleged forgery of a deed. At the last 
 September term, being brought in to plead to the indictment, 
 ^^^ he filed a motion in writmg under oath, in these words: — "And 
 now the said John Low comes into court, and alleges that he ought 
 not to be holden to answer to this indictment, because he says that 
 the said indictment was not found by any twelve of the grand jury; 
 but simply by a majority of the number who constituted the grand 
 jury panel, at the court at which said bill purports to be found. And 
 he now moves the court for liberty to prove these facts by the testi- 
 mony of James Gray, foreman of the grand jury who returned said 
 bill into court; and by Col. Thomas W. Shannon, Joseph Frost, Esq., 
 John S. Foss and Miles Ford, who were grand jurors on the panel 
 aforesaid, and who are now here present in court; and that said bill 
 was so returned under a mistaken idea that it was only necessary 
 that a majority of the panel should agree to a bill of indictment." The 
 aflSdavits of the grand jurors named in the motion being taken de bene 
 esse, they all testified that their impression was, that it was sufficient 
 if a majority of the grand jury concurred in the finding of a bill, 
 though the number composing the majority was less than twelve. The 
 foreman and two others stated that in the present case the number of 
 grand jurors so concurring was less than twelve. One of the others 
 testified that such was his impression, but that he did not feel certain 
 of the fact ; and the other said that he did not know whether there were 
 or were not twelve who concurred in finding the bill. The motion was 
 then ordered to stand over for argument at this term. . . . 
 
 Weston, J.: ". . . The concurrence of twelve grand jurors is 
 necessary to find a bill. The party accused cannot be legally held to 
 answer, upon the finding of a less number. And this privilege is se- 
 cured to the citizen, in crimes capital or infamous, by the provisions 
 of the constitution. These positions are not denied; but it is insisted 
 that, when an indictment is once verified by the attestation of the fore- 
 man of the grand jury that it is a true bill, and as such been presented 
 to the Court, and ordered to be put on file, it then becomes a matter 
 of record; and furnishes conclusive and incontrovertible evidence, that 
 it was found by the requisite number. I am satisfied that an indict- 
 ment, thus sanctioned, is to be regarded as a record, and that it has 
 all the legal verity which belongs to that species of evidence; and I 
 admit that according to our practice, it proves the fact that twelve or 
 more agreed to the bill. I think the certificate of the foreman must 
 be necessarily understood as implying this, and as constituting the 
 proper evidence of the fact; it not here appearing in the caption that 
 it was found by twelve men, according to the usage in England. But 
 
642 PAROL EVIDENCE RULE. No. 575. 
 
 while I recognize the absolute certainty, which a regular judicial rec- 
 ord carries with it, and the policy upon which it is founded, I am also 
 of opinion that there is, and always has been, and from the necessity 
 of the case must be, a power in the Court to vacate, or to cause to 
 be amended, a record which has been erroneously or falsely made, by 
 inadvertency or otherwise, by any of its officers. I entertain no doubt 
 that the Court may exercise this power at any time, according to their 
 discretion; but unquestionably while a criminal prosecution, or a civil 
 suit, is yet in progress, and has not finally terminated. . . . The return 
 of the sheriiif, upon mesne or final process, has the character of a 
 record; and as such is incontrovertible; and yet it is no uncommon 
 practice for the Court, in their discretion, to permit him to amend it. 
 And upon the suggestion of the clerk that an error has crept into the 
 record, through the inadvertency either of himself or his substitutes, 
 the court, being satisfied of the truth of the suggestion, do not hesitate 
 to order its amendment. 
 
 "It is well known that in our practice, when the grand jury come 
 into court, upon being inquired of whether they have agreed in any 
 bills, and the foreman answering in the affirmative, he is directed to 
 hand them in; whereupon they pass from his hands, through the inter- 
 vention of an officer to the clerk. They are not read over, nor is the 
 substance of them stated, or the persons named against whom they are 
 found. It is taken for granted that the foreman returns only such as 
 the requisite number have concurred in; but no inquiry is made of 
 his fellows, nor is it made known to them at the time what bills are 
 passed over to the Court. Let it be supposed that after they have 
 been received, and ordered to be filed, and the grand jury discharged, 
 it should happen to be suggested to them that, among the number, is 
 one charging a certain citizen with a certain crime. If therefore every 
 juror, except the foreman, should present himself and offer his affidavit 
 that he never agreed to such a bill, is there no power in the Court to 
 receive such testimony, and if assured of its truth to give relief? Or 
 if the foreman, after the grand jury has been dismissed, discovering 
 his mistake, should suggest to the Court, and offer to support his state- 
 ment by oath, and by the corroborating testimony of every member 
 of the grand jury, that the Attorney General had drawn two bills 
 against a party accused, one for murder and one for manslaughter, and 
 had left them with the jury, that they might make use of one or the 
 other, as they might find the facts; that a competent number of them 
 had agreed in the bill for manslaughter; but that he had since dis- 
 covered that he had inadvertently signed and presented as true the bill 
 for murder, to which they had not agreed; is the judicial power so 
 defective, that this error must remain without correction? If so the 
 life of a citizen may be brought into jeopardy, in violation of both his 
 legal and constitutional rights, under the pretence of a necessary ad- 
 herence to the letter of a technical rule. 
 
No. 576. B. VARYING THE TERMS OF A DOCUMENT, 643 
 
 "It may be said that to permit an inquiry of this sort, would open 
 the door to great abuses; that it would afford opportunity to tamper 
 with the jury; and that it would lessen the respect due to the forms 
 and solemnities of judicial proceedings. These are considerations, 
 which address themselves strongly to the attention of the Court; and 
 cannot fail to have a deep influence, in the exercise of their discre- 
 tion. It could only be in a very clear case; where it could be made 
 to appear manifestly and beyond every reasonable doubt, that an in- 
 dictment, apparently legal and formal, had not in fact the sanctions 
 which the law and the constitution require, that the Court would sus- 
 tain a motion to quash or dismiss it, upon a suggestion of this kind."* 
 
 3. Corporate Acts. 
 
 UNITED STATES BANK v. DANDRIDGE (1827). 
 12 Wheat. 65. 
 
 Story, J.: "This is a writ of error to the circuit court for the dis- 
 trict of Virginia. The original action was debt on a bond, purporting 
 to be signed by Dandridge, as principal, and Carter B. Page, Wil- 
 "'" son Allen, James Brown, Jr., Thomas Taylor, Harry Heth and An- 
 drew Stevenson, as his sureties, and was brought jointly against all the 
 parties. The condition of the bond, after reciting that Dandridge had 
 been appointed cashier of the office of discount and deposit of the 
 Bank of the United States, at Richmond, Virginia, was, that if he 
 should well and truly, and faithfully discharge the duties and trust 
 reposed in him as cashier of the said office, then the obligation to be 
 void, otherwise to remain in full force and virtue. The declaration set 
 forth the condition, and assigned various breaches. Dandridge m^de 
 no defence; and the suit was abated, as to Heth, by his death. The 
 other defendants severed in their pleas. It is not thought necessary 
 to state the pleadings at large; it is sufficient to state, that Stevenson 
 and Allen pleaded, among other pleas non est factum generally, and 
 also special pleas of non est factum, on which issues were joined; and 
 that all the defendants, in various forms, pleaded, that the instru- 
 ment was not the deed of Stevensoh; and further pleaded, that the 
 bond had never been approved, according to the provisions of the 
 30th article of the rules and regulations of the bank. Issues were 
 also taken on these pleas; and the cause came on for trial upon all 
 the issues of fact. At the trial, evidence was offered for the purpose 
 of establishing the due execution of the bond by the defendants, and 
 particularly by Stevenson and Allen, and its approval by the plain- 
 tiffs. The evidence was objected to, on behalf of the defendants, as 
 not sufficient to be left to the jury, to infer a delivery of the bond, and 
 
 4 — Compare the authorities cited in W., § 2364. 
 
644 PAROL EVIDENCE RULE. No. 576. 
 
 the acceptance and approval thereof by the directors of the bank, 
 according to the provisions of their charter; and the objection was 
 sustained, the Court being of opinion, that although the scroll affixed 
 by Allen to his name, is, in Virginia, equivalent to a seal of wax, 
 and although proof of the handwriting of Stevenson, and the bond 
 being in possession of the plaintiffs, and put in suit by them, and 
 the introduction of Dandridge into the office of cashier, and his 
 continuing to act in that office, would, in general, be prima facie 
 evidence, to be submitted to the jury, as proof that the bond was 
 fully executed and accepted; yet it was not evidence of that fact, 
 or of the obligation of the bond, in this case; because, under the 
 Act of Congress, incorporating the Bank of the United States, the 
 bond ought to be satisfactory to the board of directors, before the 
 cashier can legally enter .on the duties of his office, and consequently, 
 before his sureties can be responsible for his non-performance of 
 those duties; and that the evidence in this case did not prove such 
 acceptance and approbation of the bond, as is required by law for 
 its completion. . . . The court excluded the whole, and every part of 
 the said evidence from the jury, being of opinion, that the board of 
 directors keep a record of their proceedings, which record, or a copy 
 of it, showing the assent of the directors to this bond, was necessary 
 to show that such assent was given ; and if such assent had not been 
 entered on the record of the proceedings of the said directors, the 
 bond was ineffectual, and no claim in favor of the plaintiffs could 
 be founded thereon, against the defendants in these issues. ... It is 
 admitted, in the opinion of the Circuit Court, that the evidence offered 
 would in common cases, between private persons, have been prima 
 facie evidence, to be submitted to the jury, as proof that the bond was 
 fully executed and accepted. But it is supposed, that a different rule 
 prevails in cases of corporations; that their acts must be established 
 by positive record of proofs; and that no presumptions can be made, 
 in their favor, of corporate assent or adoption, from other circum- 
 stances, though in respect to individuals, the same circumstances would 
 be decisive. The doctrine, then, is maintained from the nature of 
 corporations, as distinguished from natural persons; and from the 
 supposed incapacity of the former to do any act, not evidenced by 
 writing, and if done, to prove it, except by writing. . . . 
 
 "In ancient times, it was held, that corporations aggregate could 
 do nothing but by deed under their common seal. But this principle 
 must always have been understood with many qualifications; and seems 
 inapplicable to acts and votes passed by such corporations at corpor- 
 ate meetings. It was probably, in its origin, applied to aggregate 
 corporations at the common law, and limited to such solemn proceed- 
 ings as were usually evidenced under seal, and had to be done by 
 those persons who had the custody of the common seal, and had 
 authority to bind the corporation thereby, as their permanent official 
 agents. Be this as it may, the rule has been broken in upon in a 
 
No, 576. B. VARYING THE TERMS OF A DOCUMENT. 645 
 
 vast variety of cases, in modern times, and cannot now, as a general 
 proposition, be supported. Mr. Justice Bayley, in Harper v. Charles- 
 worth, 4 B. & C. 575, said, 'A corporation can only grant by deed; 
 yet there are many things which a corporation has power to do, other- 
 wise than by deed. It may appoint a bailiff, and do other acts of a 
 like nature.' And it is now firmly established, both in England and 
 America, that a corporation may be bound by a promise, express or 
 implied, resulting from the acts of its authorized agent, although 
 such authority be only by virtue of a corporate vote, unaccompanied 
 with the corporate seal. But whatever may be the implied powers 
 of aggregate corporations, by the common law, and the modes by 
 which those powers are to be carried into operation, corporations 
 created by statute must depend, both for their powers and the mode 
 of exercising them, upon the true construction of the statute itself. 
 . . . We do not admit, as a general proposition, that the acts of a 
 corporation, although in all other respects rightly transacted, are 
 invalid, merely from the omission to have them reduced to writing, 
 unless the statute creating it makes such writing indispensable as 
 evidence, or to give them an obligatory force. If the statute imposes 
 such a restriction, it must be obeyed; if it does not, then it remains 
 for those who assert the doctrine to establish it by the principles 
 of the common law, and by decisive authorities. None such have, in 
 our judgment, been produced. ... If a person acts notoriously as 
 cashier of a bank, and is recognised by the directors, or by the cor- 
 poration, as an existing officer, a regular appointment will be pre- 
 sumed; and his acts, as cashier, will bind the corporation, although 
 no written proof is or can be adduced of his appointment. In short, 
 we think, that the acts of artificial persons afford the same pre- 
 sumptions as the acts of natural persons. . . . 
 
 "But the present question does not depend upon the point, whether 
 the acts of a corporation may be proved otherwise than by some 
 written document. ... In the present case, the acts of the corporation 
 itself, done at a corporate meeting, are not in controversy. . . . The 
 corporation is altogether a distinct body from the directors, possessing 
 all the general powers and attributes of an aggregate corporation, and 
 entitled to direct and superintend the management of its own property, 
 and the government of the institution, and to enact by-laws for this 
 purpose. . . . Assuming, then, that the directors of the parent bank 
 were, as a board, to approve of the bond, so far as it respects the 
 sureties, in what manner is that approval to be evidenced? Without 
 question, the directors keep a record of their proceedings as a board; 
 and it appears by the rules and regulations of the parent bank, read 
 at the bar, that the cashier is bound 'to attend all meetings of the 
 board, and to keep a fair and regular record of its proceedings.' If 
 he does not keep such a record, are all such proceedings void, or is 
 the bank at liberty to establish them by secondary evidence? In the 
 present case (we repeat it), the whole argument has proceeded upon 
 
646 PAROL EVIDENCE RULE. No. 576. 
 
 the ground, as conceded, that no such record exists of the approval 
 of the present bond. The charter of the bank does not, in terms, re- 
 quire that such an approval shall be by writing, or entered of record. 
 It does not, in terms, require that the proceedings of the directors 
 shall generally be recorded, much less, that all of them shall be 
 recorded. It seems to have left these matters to the general discre- 
 tion of the corporation, and of the directors; and though it obviously 
 contemplates, that there will be books kept by the corporation, which 
 will disclose the general state of affairs, it is not a just inference, that 
 it meant that every official act of the directors should be recorded, 
 of what ever nature it might be. . . . Upon what ground it can be 
 maintained, that the approval of the bond by the directors must be 
 in writing? It is not required by the terms of the charter, or the 
 by-laws. In each of them, the language points to the fact of approval, 
 and not to the evidence by which it is to be established, if controverted. 
 It is nowhere said, the approval shall be in writing, or of record. 
 The argument at the bar, upon the necessity of its being in writing, 
 must, therefore, depend for its support, upon the ground, that it is a 
 just inference of law from the nature and objects of the statute, from 
 the analogy of the board of directors to a corporate body, from 
 principles of public convenience and necessity, or from the language 
 of authorities, which ought not to be departed from. Upon the best 
 consideration we can give the subject, we do not think that the 
 argument can be maintained, under any of these aspects." 
 
 Marshall, Ch. J. (dissenting.) : "I should now, as is my custom, 
 when I have the misfortune to differ from this court, acquiesce silently 
 in its opinion, did I not believe that the judgment of the circuit court 
 of Virginia gave general surprise to the profession, and was generally 
 condemned. . . . The plaintiff is a corporation aggregate; a being 
 created by law; itself impersonal, though composed of many individ- 
 uals. These individuals change at will: and even while members 
 of the corporation, can, in virtue of such membership, perform no 
 corporate act, but are responsible in their natural capacities, both 
 while members of the corporation, and after they cease to be so, 
 for everything they do, whether in the name of the corporation or 
 otherwise. The corporation being one entire impersonal entity, dis- 
 tinct from the individuals who compose it, must be endowed with a 
 mode of action peculiar to itself, which will always distinguish its 
 transactions from those of its members. This faculty must be 
 exercised according to its own nature. Can such a being speak, or 
 act, otherwise than in writing? Being destitute of the natural organs 
 of man, being distinct from all its members, can it communicate its 
 resolutions, pr declare its will, without the aid of some adequate sub- 
 stitute for those organs? If the answer to this question must be in the 
 negative, what is that substitute? I can imagine no other than writing. 
 The will to be announced is the aggregate will; the voice which utters 
 it, must be the aggregate voice. Human organs belong only to in- 
 
No. 576. B. VARYING THE TERMS OF A DOCUMENT. 647 
 
 dividuals; the words they utter are the words of individuals. These 
 individuals must speak collectively, to speak corporately, and must use 
 a collective voice; they have no such voice, and must communicate 
 this collective will in some other mode. That other mode, as it seems 
 to me, must be by writing. A corporation will generally act by its 
 agents; but those agents have no self-existing power. It must be 
 created by law, or communicated by the body itself. This can be done 
 only by writing. ... It is stated in the old books (Bro. Corp. 49), 
 that a corporation may have a ploughman, butler, cook, &c., without 
 retaining them by deed; and in the same book (p. 50), Wood says, 
 'small things need not be in writing, as to light a candle, make a fire, 
 and turn cattle off the land.' Fairfax said, 'A corporation cannot 
 have a servant but by deed; small things are admissible, on account 
 of custom, and the trouble of a deed in such cases, not by strict law.' 
 Some subsequent cases show that officers may be appointed without 
 deed, but not that they may be appointed without writing. Every in- 
 strument under seal was designated as a deed, and all writings not 
 under seal were considered as acts by parol. Consequently, when the 
 old books say a thing may be done without deed, or by parol, nothing 
 more is intended than that it may be done without a sealed instrument. 
 It may still require to be in writing. . . . According to the decisions 
 of the Courts of England, then, and of this Court, a corporation, 
 unless it be in matters to which the maxim de minimis non curat lex 
 applies, can act or speak, and, of course, contract, only by writing. . . . 
 "It may be said, that although certain things ought to appear in 
 writing, it is not necessary that all the transactions of a bank should 
 so appear; and the assent of the directors to the bonds given by their 
 cashiers, need not appear. Such grave acts or omissions as may 
 justify the suing out a scire facias, to vacate the charter, ought to 
 be evidenced by their records; but such unimportant acts as taking 
 bonds from their officers, need not appear; these may be inferred. I 
 do not concur in this proposition. . . . The counsel for the plaintiifs 
 has sought to escape the almost insuperable difficulties which must 
 attend any attempt to maintain the proposition that a corporation ag- 
 gregate can act without writing, by insisting that the directors are not 
 the corporation, but are to be considered merely as individuals who 
 are its agents. If this proposition can be successfully maintained, 
 it becomes a talisman, by whose magic power the whole fabric which 
 the law has erected respecting corporations, is at once dissolved. In 
 examining it, we encountered a difficulty in the commencement. Agents- 
 are constituted for special purposes, and the extent of their power is 
 prescribed, in writing, by the corporate body itself. The directors are 
 elected by the stockholders, and manage all their affairs, in virtue of 
 the power conferred by the election. The stockholders impart no au- 
 thority to them, except by electing them as directors. But we are- 
 told, and are told truly, that the authority is given in the charter. The. 
 charter authorizes the directors to manage all the business of the cor- 
 
648 PAROL EVIDENCE RULE. NO. 576. 
 
 poration. But do they act as individuals, or in a corporate character? 
 If they act as a corporate body, then the whole law applies to them as 
 to other corporate bodies. If they act as individuals, then we have 
 a corporation which never acts in its corporate character, except in 
 the instances of electing its directors, or instructing them. . . . The 
 president and directors form, by the charter, a select body, in which 
 the general powers of the corporation are placed. This body is, I 
 think, the acting corporation. . . . The board must keep a record of 
 its proceedings. Were the by-laws silent on the subject, this would 
 be, as I think, rendered indispensable, by the fact, that it is the act 
 of a corporation aggregate. If there must be a record of their pro- 
 ceedings, and even were this necessity not absolute, if the by-laws 
 show that there is one, it follows, that this record, not the oral tes- 
 timony of the members, or of bystanders, must prove their acts. . . . 
 This record, or an authentic copy of it, must, according to the rules 
 of evidence, be produced, that it may prove itself: May its existence 
 be presumed in this case? The corporation, which claims this pre- 
 sumption, keeps the record, and is now in possession of it, if it exists. 
 No rule of evidence, is more familiar to the profession, than that a 
 paper cannot be presumed, under such circumstances. 
 
 "I have stated the view which was taken by the circuit court of 
 this case. I have only to add, that the law is now settled otherwise, 
 perhaps, to the advancement of public convenience. I acquiesce, as 
 I ought, in the decision which has been made, though I could not 
 concur in it."' 
 
 C. FORMALITIES OF LEGAL ACTS. 
 
 Statutes requiring Writing as an Essential of a Legal Act. 
 1535, St. 27 H. VIII, c. 16: "No manors, lands, tenements, or other 
 hereditaments, shall pass, alter, or change from one to another. 
 ®" ... by reason only of any bargain and sale thereof, except the 
 same bargain and sale be made by writing indented, sealed, and in- 
 rolled in one of the king's courts of record." 
 
 5 — Compare the following: have been adopted or approved by the 
 
 State V. Main, 69 Conn. 123, 37 Atl. 80 State Board of Agriculture, and the State 
 
 <i897); Information for a violation of the having failed to prove any such regula- 
 
 statute relating to **peach yellows," tions, the defendant should be acquitted.' 
 
 brought to the Superior Court in New They were properly refused, because the 
 
 London County and tried to the jury State had offered evidence tending to 
 
 before Shumway, J.; verdict and judg- show that such regulations had been pre- 
 
 ment of guilty. . . , Baldwin, J.: "The viously adopted. This evidence was a 
 
 defendant requested instructions to the copy from the records of the board, duly 
 
 effect that before the commissioner of certified by its secretary, under its seal, 
 
 peach yellows or his deputy 'could legally purporting to set forth the doings of 
 
 order trees destroyed, regulations in re- the board at a meeting held several 
 
 lation to so ordering trees destroyed must months before the date of the order served 
 
No. 577. C. FORMALITIES OF LEGAL ACTS. 649 
 
 1540, St. 32 H. VIII, c. I, § I : Gives liberty to devise all lands 
 "as well by his last will and testament in writing, or otherwise by any 
 act or acts lawfully executed in his life.'' 
 
 1678, St. 29 Car. II, c. 3, § I : "All leases, estates, interests of free- 
 hold, or terms of years, or any uncertain interests of, in, to, or out 
 of any messuages, manors, lands, tenements, or hereditaments, made 
 or created by livery and seisin only, or by parol, and not put in writ- 
 ing and signed by the parties so making or creating the same, or their 
 agents thereunto lawfully authorized by writing, shall have the force 
 and effect of leases or estates at will only, and shall not either in law 
 or equity be deemed or taken to have any other or greater force or 
 effect. . . ." 
 
 lb. § 3 : "No leases, estates, or interests ... [in land] shall . . . 
 be assigned, granted, or surrendered, unless it be by deed or note in 
 writing, signed by the party so assigning." 
 
 lb. § 4 : "No action shall be brought whereby to charge any execu- 
 tor or administrator upon any special promise to answer damages out 
 of his own estate, or whereby to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriages of another 
 person, or to charge any person upon any agreement made upon con- 
 sideration of marriage, or upon any contract of sale of lands, tene- 
 ments, or hereditaments, or any interest in or concerning them, or upon 
 any agreement that is not to be performed within the space of one 
 year from the making thereof, unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, shall 
 be in writing, and signed by the party to be charged therewith, or some 
 other person thereunto by him lawfully authorized." 
 
 lb. § 5 : "All devises and bequests of any lands or tenements . . . 
 shall be in writing, and signed by the party so devising the same, or 
 by some other person in his presence and by his express directions, and 
 shall be attested and subscribed in the presence of the said devisor by 
 three or four credible witnesses, or else they shall be utterly void and 
 of none effect." 
 
 lb. § 7 : "All declarations of creations of trusts or confidences of 
 any lands, tenements, or hereditaments, shall be manifested and proved 
 by some writing signed by the party . . . , or else they shall be utterly 
 void and of none effect." 
 
 lb. §9: "All grants and assignments of any trust or confidence 
 shall likewise be in writing signed by the party granting or assigning 
 . . . or else shall likewise be utterly void and of none effect." 
 
 upon the defendant. He sought to meet was properly rejected by the court. It 
 
 this document by oral testimony from was offered to impeach the record of a 
 
 the secretary that the statement in the public board, and such a record cannot 
 
 minutes of the meeting that certain regu- thus be collaterally attacked." 
 
 lations were adopted, had been interlined Compare the authorities cited in W., 
 
 pending this prosecution, and was no part § 2451. 
 
 or the original record. This testimony 
 
€50 PAROL EVIDENCE RULE. Ko. 577. 
 
 lb. § 17 : "No contract for the sale of any goods . . . shall he 
 allowed to he good, except the buyer shall accept part of the goods so 
 sold, and actually receive the same, or give something in earnest to 
 bind the bargain, or in part of payment, or that some note or memo- 
 randum in writing of the said bargain he made and signed by the par- 
 ties to be charged by such contract, or their agents thereunto lawfully 
 authorized." 
 
 lb. § 19 : "No nuncupative will shall be good . . . that is not proved 
 by the oaths of three witnesses (at the least) that were present at 
 the making thereof, nor unless it be proved that the testator at the 
 time of pronouncing the same did bid the persons present, or some of 
 them, bear witness that such was his will, or to that effect." 
 
 lb. § 20 : "After six months passed from the speaking of the pre- 
 tended testamentary words, no testimony shall be received to prove 
 any will nuncupative, except the said testimony, or the substance there- 
 of, were committed to writing within six days after the making of 
 the said will." 
 
 LEROUX V. BROWN (1852). 
 12 C. B. 801, 823. 
 
 Assumpsit. ... It appeared that an oral agreement had been en- 
 tered into at Calais, between the plaintiff and the defendant, under 
 which the latter, who resided in England, contracted to employ 
 '^ the former, who was a British subject resident at Calais, at a 
 salary of 100/. per annum, to collect poultry and eggs in that neigh- 
 bourhood, for transmission to the defendant here, — the employment to 
 commence at a future day, and to continue for one year certain. Evi- 
 dence was given on the part of the plaintiff to show, that, by the law 
 of France, such an agreement is capable of being enforced, although 
 not in writing. For the defendant, it was insisted, that, notwithstand- 
 ing the contract wras made in France, when it was sought to enforce 
 it in this country, it must be dealt with according to our law; and, 
 heing a contract not to be performed within a year, the statue of frauds, 
 29 Car. 2, c. 3, 8. 4, required it to be in writing. Under the direction 
 of the learned judge, a verdict was entered for the plaintiff on the first 
 issue, — leave being reserved to the defendant to move to enter a non- 
 suit or a verdict for him on that issue, if the court should be of the 
 opinion that the contract could not be enforced here. 
 
 Jervis, C. J.: "I am of the opinion that the rule to enter a non- 
 suit must be made absolute. There is no dispute as to the principles 
 which ought to govern our decision. My Brother Allen admits, that, 
 if the 4th section of the Statute of Frauds applies, not to the validity 
 of the contract, but only to the procedure, the plaintiff cannot main- 
 tain this action, because there is no agreement, nor any memorandum 
 or note thereof, in writing. On the other hand, it is not denied by 
 
No. 579. C. FORMALITIES OF LEGAL ACTS. 651 
 
 Mr. Honyman, — who has argued this case in a manner for which the 
 Court is much indebted to him, — that, if the 4th section appHes to the 
 contract itself, or, as Boullenois expresses it, to the solemnities of the 
 contract, inasmuch as our law cannot regulate foreign contracts, a con- 
 tract like this may be enforced here. I am of opinion that the 4th 
 section applies not to the solemnities of the contract, but to the pro- 
 cedure ; and therefore that the contract in question cannot be sued upon 
 here. The contract may be capable of being enforced in the country 
 where it was made: but not in England. Looking at the words of the 
 4th section of the Statute of Frauds, and contrasting them with those 
 of the 1st, 3d, and 17th sections, this conclusion seems to me to be 
 inevitable. The words of s. 4 are, 'no action shall be brought upon 
 any agreement which is not to be performed within the space of one 
 year from the making thereof, unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, shall be 
 in writing, and signed by the party to be charged therewith, or some 
 other person thereto by him lawfully authorized.' The statute, in this 
 part of it, does not say, that, unless those requisites are complied with, 
 the contract shall be void, but merely that no action shall be brought 
 upon it and, as was put with great force by Mr. Honyman, the alter- 
 native, 'unless the agreement, or some memorandum or note thereof, 
 shall be in writing,' — words which are satisfied if there be any written 
 evidence of a previous agreement, — shows that the statute contemplated 
 that the agreement may be good, though not capable of being enforced 
 if not evidenced by writing. This therefore may be a very good agree- 
 ment, though, for want of a compliance with the requisites of the 
 statute, not enforceable in an English court of justice." 
 
 Other Formalities than Writing.^ "It remains here only to 
 note, for the sake of completeness, the remaining formalities receiv- 
 ing the sanction of modern law. These formalities, so far as 
 required, take their place, with the writing of some of the sec- 
 tions of the statute of frauds, as an inherent element of form in the 
 validity of the transaction. Like all other requirements of form, they 
 are arbitrary, in the sense that the act may be sufficient in its terms 
 (for example, to constitute a contract or a release), and may be fully 
 proved by the evidence, and yet remains, legally ineffective. Never- 
 theless, they are not arbitrary, to the extent that they rest on a con- 
 scious policy of avoiding certain general dangers or abuses, and that 
 they enforce a rigid rule merely for the sake of this policy. 
 
 "(i) A signature is required by the statute of frauds, for all of 
 the transactions in which writing is required; and obviously the 
 signature is a formal requirement over and above that of writing 
 
 I — Quoted from W., % 2456. 
 
652 PAROL EVIDENCE RULE. No. 579, 
 
 alone. A signature, however, was not required at common law for 
 a deed. 
 
 "(2) A seal was essential at common law for the chief sorts of 
 documents. The origin of significance of the seal, in its relation to 
 the use of writings, has already been noticed. What tUe form of a 
 seal should be was long a subject of elaborate discussion. 
 
 "(3) The attestation of a document was originally not a formality 
 to the validity of the document, but merely a precaution desirable for 
 securing testimony to the transaction; the noting of the names of the 
 witnesses on the document was thus only a memorandum for future 
 usefulness. But the Statute of Frauds introduced, for wills, the act 
 of attestation as a formality. This formality includes two things, first 
 the presence of the witnesses at the act of signature by the testator, 
 and, secondly, the signature of the document by the witnesses. The 
 two together thus constitute an intrinsic element in the validity of the 
 document." It may be noted that whatever questions are thus raised — 
 for example, whether the document must bear a written recital of the 
 witnesses' presence, or whether, if their signatures are borne, the fact 
 of presence may be otherwise estabUshed — do not involve the prin- 
 ciple of Integration, but only the principle of Formality. 
 
 "(4) The registration of a document may be made an essential 
 formality of its validity, apart from and additionally to its service 
 as a constructive notice of the document's validity. But this quality 
 is seldom attributed to it unless by express statutory declaration. 
 Under the modern (or Torrens) system of registration of title, no 
 doubt this is the actual result. It may be noted that by this modem 
 system the document of title would seem also to furnish one of the 
 rare instances of a compulsory integration. 
 
 "(S) A stamp has by some legislation been made formally neces- 
 sary to the validity of a document, the policy of such laws being to 
 compel indirectly the payment of a tax." 
 
 D. INTERPRETATION OF LEGAL ACTS. 
 
 General Nature of Interpretation; Standard and Sources of 
 Interpretation.^ "The process of Interpretation is a part of the 
 procedure of realising a person's act in the external world. It 
 "°^ is, in a sense, the completion of the act; for without it the 
 utterance, whether written or oral, must remain vain words. If a 
 person were to be contented with proclaiming his contracts at the 
 top of a mountain, or nailing his deeds to the front gate, he would 
 
 2 — Compare Nos. 179, 264, ante, for a testation and the requirement of the at- 
 distinction between the formality of at- testing witness' testimony. 
 
 3— Quoted from W., \i 2458, 2459. 
 
Na. 580. D. INTERPRETATION OF LEGAL ACTS. 653 
 
 not need to be concerned with the process of interpretation. But 
 deeds and contracts and wills, if they are not to remain empty mani- 
 festoes, must be enforced. They must be applied to external objects. 
 Somewhere possession must be yielded or goods delivered or money 
 transferred; and in order that the law may enforce these changes in 
 external objects, the relation between the terms of the legal act and 
 certain specific external objects must be determined, as an indis- 
 pensable part of the process. In short, the interpretation of the terms 
 of a legal act is an essential part of the act considered as capable of 
 legal realization and enforcement.* The only difference is that the 
 actor alone creates the terms of his act, while the interpretation of it, 
 being a part of the enforcement, comes into the hands of the law. 
 
 "The process of interpretation, then, though it is commonly simple 
 and often unobserved, is always present, being inherently indispen- 
 sable. The method of it consists in ascertaining the actor's associa- 
 tions or connections between the terms of the act and the various 
 possible objects of the external world. Those terms may be dramatic 
 or verbal. The lantern of Paul Revere, and the twenty-one guns of 
 a warship's salute, are as much the subject of interpretation as the 
 words of a will. In all cases, the process is that of applying the 
 symbol or word to external objects. Since men cannot go out and 
 instantaneously transform, with the presto of a magician, the existing 
 to the desired state of things, they must embody their will in marks 
 which will serve to point out the effects desired, and then wait for the 
 law, or for some one's voluntary obedience to it, to effect the realiza- 
 tion of the effects thus pointed out in advance. The process of in- 
 terpretation may be compared to a wireless telegraph station. A 
 vessel approaches the coast and perceives the station-pole standing 
 straight above the cliffs. Until the current can be intercepted, it is 
 but a useless rod of steel; it sends no message and accomplishes no 
 purpose. It may have any one of various attunements; and it will 
 tell nothing until a similar attunement be established by the vessel. 
 To ascertain that attunement, the particular country where it is fixed 
 must be known, and then the official records of its methods and sig- 
 nals must be consulted. Not until then can the station's message be 
 made actual to the vessel. 
 
 "Such is the process of interpretation. The analogy of the tele- 
 graph-station illustrates the important distinction between the ttwo 
 great divisions of the process. The first question must always be. 
 What is the standard of interpretation? The second question is. In 
 what sources is the tenor of that standard to be ascertained? Some- 
 times one or the other of these questions may interpose no difficulty; 
 but both must always be settled. 
 
 4 — Answer of the Judges to the House matter of fact?' We find a difficulty in 
 
 of Lords, 22 How. St. Tr. 301 (1789): separating the sense of the letter from 
 
 "Your lordships ask us, 'whether the the letter. The paper without the sense 
 
 cense of the letter be matter of law or is not a lettfr." 
 
654 PAROL EVIDENCE RULE. No. 580. 
 
 "(i) The standard of interpretation, as involved in legal acts, is 
 the personality whose utterances are to be interpreted. There are 
 practically four different available standards. First, there is the 
 standard of the normal users of the language of the forum, the com- 
 munity at large, represented by the ordinary meaning of words. Next, 
 there is the standard of a special class of persons within the com- 
 munity, — the followers of a particular trade or occupation, the mem- 
 bers of a particular religious sect, the aliens of a particular tongue, 
 the natives of a particular dialect, who use certain words in a sense 
 common to the entire class, but different from that of the community 
 at large. Thirdly, there is the standard of the specific parties co- 
 operating in a bilateral act, who may use words in a sense common to 
 themselves and unknown to any others. Finally, there is the standard 
 of an individual actor, who may use words in a sense wholly peculiar 
 to himself; and here the question will naturally arise whether he may 
 insist on his individual standard in the interpretation of .the words of 
 a contract, or even of a uniliteral act such as a will. The first inquiry 
 in interpretation, then, is to determine which of these standards is 
 the proper one for the particular act to be interpreted; and for this 
 purpose certain working rules have to be formulated. 
 
 "(2) The sources for ascertaining the tenor of the standard form 
 the second object of inquiry. Since interpretation consists in ascer- 
 taining the associations between the specific terms used and certain 
 external objects, and since these associations must be somehow know- 
 able in order to proceed, the question is where they ^re to be looked 
 for. So far as the standard of interpretation is solely the normal 
 one of the community, the inquiry is a simple one; the usage of the 
 community (as represented in dictionaries and elsewhere) is the 
 source of information. But that standard (as will be seen) is rarely 
 the exclusive one. The mutual standard of parties to a bilateral act, 
 and for wills the individual standard of the testator, is constantly 
 conceded to control; and it then becomes necessary to search among 
 the prior and subsequent utterances of the party or parties to ascer- 
 tain their usage, or fixed associations with the terms employed. In 
 resorting to these data, the question then arises whether there is any 
 prohibitive rule of law which limits the scope of search and forbids 
 the use of certain data. These rules, if any, form the second part of 
 the law of interpretation. 
 
 "Before proceeding, however, to these two parts of the subject in 
 order, it is necessary to fix upon a terminology and to avoid misunder- 
 standing in the use of words. When we seek to ascertain the standard 
 and sources of interpretation and thereby discover the actor's associa- 
 tion of words with external objects, what is the term, in one word, 
 which describes the object of search? Is it the person's 'meaning'? 
 Or is it his 'intention'? Over this difference of phraseology has per- 
 sisted an endless controversy, which, like that of the two knights 
 
Ho. 580. D. INTERPRETATION OF LEGAL ACTS. 655 
 
 and the shield at the cross-roads, is after all resolvable mainly into a 
 difference of words only. 
 
 " 'Intention! and 'M:eaning,' distinguished. The distinction be- 
 tween 'intention' and 'meaning' is vital. The distinction is inde- 
 pendent of any question over the relative propriety of these names; 
 for there exist two things, which must be kept apart, yet never can 
 be unless different terms are used. The words 'will' and 'sense' may 
 be taken as sufficiently indicative of these two things and free from 
 the ambiguity of the other terms. 
 
 "Will and Sense, then, are distinct. Interpretation as a legal 
 process is concerned with the Sense of the word used, and not with 
 the Will to use that particular word. The contrast is between that 
 Will, volition, or intent to utter, as the subjective element of an act, 
 making a person responsible for a particular utterance as his, and 
 that Sense or meaning which involves the fixed association between 
 the uttered word and some external object. It has already been seen 
 that by the general canon of legal acts, the person's actual will or 
 intent to utter a given word can seldom be considered for legal pur- 
 poses. If he has exercised a volition to utter something, then he is 
 responsible for such utterances as in external appearance the utter- 
 ance he intended, — whether or not he actually intended it. On the 
 other hand, the sense of his word as thus uttered — his fixed associa- 
 tion between that symbol and some external object — may usually be 
 given full effect, if it can be ascertained. The rules for the two things 
 may be different. The law has thus constantly to emphasize the con- 
 trast between the prohibitive rule applicable to the execution of an 
 act,i and the present permissive rule applicable to its interpretation. 
 Judges are desirous, when investigating the sense of the words as 
 uttered by the person, of emphasizing that they do not violate the 
 rule against inquiring whether he actually intended to utter those 
 words. Hence the reiteration of the contrast between 'intention' and 
 'meaning' : 
 
 1789, Kenyan, L. C. J., in Hay v. Coventry, 3 T. R. 83, 86: "We must 
 collect the meaning of the testator from those words which he has used, and 
 cannot add words which he has not used." 
 
 1833, Parke, J., in Doe v. Gwillim, 5 B. & Ad. 122, 129: "In expounding 
 a will, the Court is to ascertain, _ not what the testator actually intended, as 
 contradistinguished from what his words express, but what is the meaning 
 of the words he used." 
 
 1833, Denman, L C. J., in Rickman v. Carstairs, S B. & Ad. 663 : "The 
 question . . .is not what was the intention of the parties, but what is 
 the meaning of the words they have used." 
 
 "The common terminology of these judicial explanations is unfor- 
 tunate, because 'meaning' has a suggestion of the state of the person's 
 mind as fixed on certain objects, and 'intention' bears the same sug- 
 gestion. The constant exclusion of the state of the person's mind in 
 
 I — Ante, Nos. S34-544- 
 
656 PAROL EVIDENCE RULE. NO. 580. 
 
 one aspect and its consideration in another aspect are thus apparently 
 contradictory and irreconcilable. But the terms 'will,' or 'volition/ 
 and 'sense,' serve to avoid this ambiguity. They emphasize the dis- 
 tinction that the will to utter a specific word is one thing, and the 
 fixed association of that word is another thing. Thus the Execution 
 of the act and its Interpretation as executed are kept distinct. 
 
 "The analogy of other symbols than words will best illustrate how 
 common and fundamental is this difference in other affairs, and how 
 instinctively it is appreciated and applied. Suppose a foreign vessel 
 to be coasting the shore and entering various harbors where the Gov- 
 ernment maintains a uniform system of harbor-buoys in various colors 
 and shapes, indicating respectively channels, sandbars, sunken rocks, 
 and safe anchorages; here the significance of each kind of buoy is 
 known to be the same in every harbor under Government control. 
 But suppose the vessel to enter a harbor or inlet under the control of 
 an individual or a city having a peculiar and different code of usage 
 for the buoys; here it is immaterial whether a red buoy under the 
 Government system signifies a channel or a sandbar; the vital ques- 
 tion for the vessel now is what a red buoy signifies under the code 
 of the local authority, and all other systems of meaning are thrown 
 aside as useless. This illustrates that though, in interpreting a per- 
 son's (for example, a testator's) words, we are concerned with his 
 individual meaning, as distinguished from the customary sense of 
 words, still we are not dealing with his state of mind as to volition, 
 but with the associations affixed by him to an expressed symbol as 
 indicating to others an external object. That is to say, the local harbor 
 authorities may have 'intended' to put a green buoy instead of a red 
 buoy, or to have put the red buoy at another spot; they may have 
 made a 'mistake,' just as the testator may have intended to use other 
 words; but in both cases the state of mind as to volition, or mistake, 
 is a wholly different thing from the fixed association, according to 
 that individual's standard, between the expressed symbol and some ex- 
 ternal object. To illustrate another aspect of the subject, suppose a 
 game of chess to be played by B with his guest A. If the two are of 
 the same nation, their standards of interpretation — for example, as 
 to the shape of each chessman, the allowable moves, and the effect 
 of a move — will be the same. But some nations differ from others in 
 one or more of these respects; so that if, for example, B's national 
 rules allowed a rook to threaten diagonally on the board, A as guest 
 would accept and accommodate himself, as best he might, to this 
 standard of operation. But, though this much might be conceded to 
 B as host, in the adoption of his standards for giving meaning to his 
 acts of moving the chessmen, yet it would remain true that his private 
 intent or volition, as distinguished from the significance of his acts 
 of moving, would be immaterial; so that, for example, his intent to 
 have touched and moved a different piece, or to have placed the piece 
 
No. 582. D, INTERPRETATION OF LEGAL ACTS. 657. 
 
 on a different square, would not be taken into consideration. So, again, 
 if A and B engage in a shooting match, with two. targets of lOO yards' 
 and 500 yards' distance, it may be that, after the shooting, A and B 
 will discover that they have not agreed which prize is to be associated 
 with which target, or whether the victory at the 500-yard target is to 
 count for more than the victory at the loo-yard target, and they may 
 have to repeat the match after coming to a common understanding. 
 But in no case would A think of claiming that B, who has hit the 
 100-yard bull's-eye, could not win because he was really aiming at the 
 Soo-yard target and hit the other only by mistake; nor could A have a 
 second trial, on missing the 500-yard target, because by mistake he 
 shot at the loo-yard target. 
 
 "A person, then, who wills to utter words is like a man placing a 
 buoy, or moving a chessman, or shooting a target. His will or intent 
 or volition as to the terms of the peculiar utterance is one thing; his 
 sense of meaning attached to the terms actually uttered is a different 
 thing. Whatever may be the rules for the former element of his act, 
 the rules for the latter element are independent of them." 
 
 I. STANDARD OF INTERPRETATION. 
 
 Brook, J., in Throckmorton v. Tracy, Plowd. i6o (1554); (after 
 hearing Saunders lay down three rules for deeds, of which the third 
 was: "The words shall be construed according to the intent of 
 ^^•'- the parties, and not otherwise") : "The party ought ttt direct 
 his meaning according to the law, and not the law according to his 
 meaning; for if a man should bend the law to the intent of the party, 
 rather than the intent of the party to the law, this would be the way 
 to introduce barbarousness and ignorance and to destroy all learning 
 and diligence. For if a man was assured that whatever words he 
 made use of, his meaning only should be considered, he would be very 
 careless about the choice of his words, and it would be the source of 
 infinite confusion and uncertainty to explain what was his meaning." 
 
 Jeremy Bentham, Rationale of Judicial Evidence, h. IX, pt. VI, 
 c. IV (1827; Bowring's ed., vol. VII, p. 556, note): "The refusal to 
 put upon the words used by a man in penning a deed or a will 
 the meaning which it is all the while acknowledged he put upon 
 them himself, is an enormity, an act of barefaced injustice, unknown 
 everywhere but in English jurisprudence. It is, in fact, making for a 
 man a will that he never made; a practice exactly upon a par (im- 
 punity excepted) with forgery. Lawyers putting upon it their sense? 
 Yes, their own sense. But which of all possible senses is their own 
 sense? They are as far from agreeing with one another, or each with 
 
658 PAROL EVIDENCE RULE. No. 582. 
 
 himself, as with the body of the people. In evident reason and com- 
 mon justice, no one will ought to be taken as a rule for any other; 
 no more than the evidence in one cause is a rule for the evidence to 
 different facts in another cause." 
 
 ATTORNEY-GENERAL v. SHORE (1833-43). 
 (LADY HEWLEY'S CHARITIES.) 
 
 II Sim. 5p2, 615. 
 
 Lady Hewley, a Presbyterian, in 1704, deeded to charities for the 
 assistance of "poor and godly preachers of Christ's holy gospel," etc. 
 The trustees having become Unitarians at a later period, a bill 
 *'* was filed to remove them and order the trust's administration 
 for the benefit of persons described in the deed. For this purpose, 
 evidence of the theological tenets of the sect to which she belonged, 
 and of the usages of that sect, was admitted, by a majority of the 
 judges. 
 
 TiNDAL, C. J.: "The general rule I take to be, that where the 
 words of any written instrument are free from ambiguity in them- 
 selves, and where external circumstances do not create any doubt or 
 difficulty as to the proper application of those words to claimants 
 under the instrument, or the subject-matter to which the instrument 
 relates, such instrument is always to be construed according to the 
 strict, plain, common meaning of the words themselves; and that, in 
 such case, evidence dehors the instrument, for the purpose of explain- 
 ing it according to the surmised or alleged intention of the parties to 
 the instrument, is utterly inadmissible. If it were otherwise, no 
 lawyer would be safe in advising upon the construction of a written 
 instrument, nor any party in taking under it; for the ablest advice 
 might be controlled, and the clearest title undermined, if, at some fu- 
 ture period, parol evidence of the particular meaning which the party 
 affixed to his words, or of his secret intention in making the instru- 
 ment, or of the objects he meant to take benefit under it, might be 
 set up to contradict or vary the plain language of the instrument itself. 
 The true interpretation, however, of every instrument being mani- 
 festly that which will make the instrument speak the intention of the 
 party at the time it was made, it has always been considered as an 
 exception, or, perhaps, to speak more precisely, not so much an ex- 
 ception from, as a corollary to, the general rule above stated, that 
 where any doubt arises upon the true sense and meaning of the words 
 themselves, or any difficulty as to their application under the sur- 
 rounding circumstances, the sense and meaning of the language may 
 be investigated and ascertained by evidence dehors the instrument 
 itself; for both reason and common sense agree, that by no other 
 means can the language of the instrument be made to speak the real 
 
No. 584. a interpretation of legal acts. 659 
 
 mind of the party. Such investigation does, of necessity, take place 
 in the interpretation of instruments written in a foreign language; 
 in the case of ancient instruments where, by the lapse of time and 
 change of manners, the words have acquired, in the present age, a 
 different meaning from that which they bore when originally employed; 
 in cases where terms of art or science occur; in mercantile contracts, 
 which, in many instances, use a peculiar language, employed by those 
 only who are conversant in trade and commerce; and in other in- 
 stances in which the words, besides their general common meaning, 
 have acquired, by custom or otherwise, a well-known peculiar, idio- 
 matic meaning, in the particular country in which the party using them 
 was dwelling, or in the particular society of which he formed a mem- 
 ber, and in which he passed his life. . . . But I conceive the excep- 
 tion to be strictly limited to cases of the description above given, and 
 to evidence of the nature above detailed."^ 
 
 LiNDLEY, L. J., in Re Jodrell, L. R. 44 Ch. D. 590, 6op, 614 (1890) : 
 "I do not propose to deal with decided cases at all. It may be that 
 there were expressions in the documents then before the Court 
 *** which made the Judges come to conclusions which I cannot 
 arrive at when I come to look at the will and codicils with which I 
 have to deal. I do not consider that a decision which is more or less 
 at variance with other cases is wrong because it is so at variance. 
 Cases of construction are useful when they lay down canons or rules ' 
 of construction, and they are useful when they put an interpretation 
 on common forms — whether in deeds, wills, or mercantile documents. 
 They may be valuable guides; but when I am told that because some- 
 thing occurs in one will I am to give a precisely similar effect to a 
 similar expression occurring in another will dealing with a different 
 property and in another context, I object altogether to do it. The 
 only principle that I know of is that which has been expressed before. 
 Look at the words, avail yourself of such evidence as is legitimately 
 admissible, and see what the testator has said, and expound it as best 
 you can with reference to what is legitimately before you. . . ." 
 
 BowEN, L. J.: "It seems to me that the only weight one can give 
 to such language [as the so-called rule against disturbing a clear 
 meaning] is to treat it not so much as a canon of construction as a coun- 
 sel of caution to warn you in dealing with such cases not to give way 
 to guesses or mere speculation as to the probabilities of an intention, 
 but to act only on such evidence as can lead a reasonable man to a 
 
 I — Lord Chelmsfordj in Beacon L. & F. meaning, evidence is admissible to prove 
 
 Ass. Co., I Moore P. C. n. ». 73, 98 the peculiar sense in which the parties 
 
 (1862): "In order to construe a term understood the word; but it is not ad- 
 
 in a, written instrument where it is used missible to contradict or vary what is 
 
 in a sense differing from its ordinary plain." 
 
660 PAROL EVIDENCE RULE. No. 584. 
 
 distinct conclusion. But I protest, that as soon as you see upon the 
 will, read by the light of such extrinsic circumstances as you may 
 survey, what the true construction is, and what the true intert'on 
 expressed by the testator is, then your journey is performed. You 
 require no more counsellors to assist you; and after once arriving 
 at the journey's end, to pause in giving effect to the true interpreta- 
 tion because, forsooth, the language has not been framed according to 
 some measure or standard of correct expression, which is supposed to 
 be imposed by judges out of regard for social or other reasons, ap- 
 pears to me to be using the language of such learned judges, not as 
 laying down canons for construing a will, but as justifications for mis- 
 construing it. As soon as you once arrive at your journey's end you 
 have no more to do than to give effect to the true construction as you 
 see it." 
 
 TILTON V. AMERICAN BIBLE SOCIETY (1880). 
 60 N. H. 277- 
 
 Bill in equity, by the executor of the will of Joseph Tilton, for 
 the interpretation of the third item of the will. Facts found by the 
 court. The third item is, "I give and bequeath to the Bible So- 
 ^'* ciety, Foreign Mission Society, the Home Mission Society, and 
 the Tract Society, five hundred dollars each.'' There are no societies 
 known by those names. From 185 1 until his death in 1864, the tes- 
 tator and his wife were members of the Congregational church and 
 society at Littleton, and were regular attendants at the services and 
 meetings of the church and society. Subject to the plaintiff's excep- 
 tion, it was proved that during that time, at such meetings, annual 
 contributions were taken for the New Hampshire Bible Society, the 
 American Board of Commissioners for Foreign Missions, the New 
 Hampshire Home Missionary Society, and the American Tract So- 
 ciety (who are defendants claiming the legacies) ; that when such 
 contributions were taken, they were called collections for the New 
 Hampshire Bible Society, Foreign Missions, the New Hampshire Mis- 
 sionary Society, and the American Tract Society; and that during 
 the same period a similar custom of contribution for the same societies 
 prevailed in the other Congregational churches and societies of this 
 state, the donees being usually designated as the Bible Society, Foreign 
 Missions, Home Missions, and the Tract Society. There was no evi- 
 dence that the testator had. knowledge of the usage in other towns than 
 Littleton, except his connection with the Littleton church and society. 
 Franklin Tilton was a member of the Congregational church and so- 
 ciety at Littleton from July, 1858, until his death, was a regular at- 
 tendant at their meetings, and took part therein, during a part of the 
 time was superintendent of the Sabbath-school, and was familiar with 
 the usages of the church and society. The residuary legatees contend 
 
No. 586. D. IN^^ERPRETATION OF LEGAL ACTS. 661 
 
 that the bequests of the third item are void for uncertainty. Upon 
 these facts the Court found that the societies for whom the annual 
 contributions were taken were the societies which the testator intended 
 to make legatees in the third item of his will. 
 
 Doe, C. J. : "The question is not whether a plea of misnomer of 
 a party is sustained by proof, nor whether there is a variance between 
 the evidence and the name of a third person set forth in pleading. The 
 question is not by what name any Bible society was known to others, 
 tut which one of several Bible societies was intended by the testator. 
 . . . Evidence showing what name was given to a Bible society in its 
 character, what nam.e it used or recognized as its own, and by what 
 name or names it was known to others, tends to prove a name by 
 which the legatee might have been known to the testator, and a name 
 which he might have used in his will to express his intention. But 
 the society intended by him, and identified by competent evidence, is 
 the legatee, by whatever name described in the will, and notwithstand- 
 ing any other name or names by which it may have been invariably 
 or usually known to others. ... A person known to a testator as 
 A. B., and to all others as C. D., may take a legacy given to A. B."^ 
 
 MYERS V. SARL (i860). 
 S E. & E. 306. 
 
 Action for a sum due on a building contract. By the con- 
 tract it was provided that "no alteration or additions shall be admitted 
 unless directed by the architects of" the defendants "in writing 
 '""' under his hand; and a weekly account of the work done there- 
 under shall be delivered to the said architect or the clerk of the works 
 on every Monday next ensuing the performance of such work; and 
 the delivery of such account shall be a condition precedent to the right 
 of" the plaintiff "to recover payment for such addition or alteration." 
 It was contended before the arbitrator, on behalf of the defendants, 
 that the plaintiff was not entitled to recover for some of the extra 
 -work done by him, on the ground that the same was not directed to 
 be done by the architect by any writing under his hand pursuant to 
 the clause in the contract above set out, and also on the ground that 
 no sufficient weekly accounts of such work were delivered by the 
 plaintiff within the meaning of that clause. With respect to the latter 
 objection it appeared in evidence that certain accounts of the extra 
 ■work were delivered by the plaintiff as and for weekly accounts within 
 the meaning of the contract; and it was contended on his behalf that 
 the term "weekly account," as used in the contract, was a term of 
 art well known in the building trade and to all builders and archi- 
 tects, and that parol testimony was admissible to .prove its meaning. 
 
 I — Compare the authorities cited in W., § 2463. 
 
662 PAROL EVIDENCE RULE. No. 586. 
 
 The admissibility of such evidence was objected to on the part of the 
 defendants. The arbitrator held that the words used were a term of 
 art, and that such evidence was admissible: and he accordingly re- 
 ceived the same. 
 
 Hill, J.: "The question turns upon the meaning to be given, in 
 the contract, to the words 'a weekly account of the work done there- 
 under.' Mr. Lush says that the plain, ordinary meaning of these 
 words is a 'weekly account of all the work done thereunder.' The 
 usage of the trade is proved to be that they mean 'a weekly account 
 of the day work done thereunder.' We have to determine whether 
 evidence of that usage was rightly received. Now the rule governing 
 the admissibility of evidence to explain the language of contracts is, 
 that words relating to the transactions of common life are to be taken 
 in their plain, ordinary, and popular meaning; but if a contract be 
 made with reference to a subject-matter as to which particular words 
 and expressions have by usage acquired a peculiar meaning different 
 from their plain, ordinary sense, the parties to such a contract, if they 
 use those words or expressions, must be taken to have used them in 
 their restricted and peculiar signification. And parol evidence is ad- 
 missible of the usage which affixes that meaning to them. The ad- 
 missibility of such evidence does not depend upon whether the expres- 
 sion to be construed is ambiguous or unambiguous; but merely upon 
 whether or not the expression has, with reference to the subject- 
 matter of the contract, acquired the peculiar meaning." 
 
 Blackburn, J.: "I am of the same opinion. I agree with my 
 brother Hill that the words of a written commercial contract are to 
 be understood in the sense which they have acquired in the trade to 
 which the contract relates. It is a prima facie presumption that, if 
 the parties to such a contract use expressions which bear a peculiar 
 meaning in the trade, they use them in that peculiar meaning, which 
 can be ascertained only by parol evidence. I do not think that it is 
 necessary, in order to render such evidence admissible, that there 
 should be any ambiguity on the face of the phrase which has to be 
 construed. ... I take it to be the true rule of law upon the subject that 
 when it is shown that a term or phrase in a written contract bears a 
 peculiar meaning in the trade or business to which the instrument 
 relates, that meaning is prima facie to be attributed to it; unless upon 
 the construction of the whole contract enough appears, either from 
 express words or by necessary implication, to show that the parties- 
 did not intend that meaning to prevail. The consequence is that every 
 individual case must be decided on its own grounds."^ 
 
 I — Coleridge f J., in Brown v. Byrne, meaning unambiguous; for the principle 
 
 3 E. & B. 703 (1854): "Neither, in the of admission is that words perfectly unam- 
 
 construction of a contract among mer- biguous in their ordinary meaning are 
 
 chants, tradesmen, or others, will the evi- used by the contractors in a different 
 
 dence [of a local usage] be excluded be- sense from that. What words more plain 
 
 cause the words are in their ordinary than 'a thousand,' 'a week,' 'a day'? Yet 
 
No. 587. D. INTERPRETATION OF LEGAL ACTS. 663 
 
 VIOLETTE V. RICE (1899). 
 173 Mass. 82, 53 N. E. 144. 
 
 Holmes, J.: "This is a bill in equity to reach and apply property 
 which is alleged to have been conveyed in fraud of the plaintiff, claim- 
 ing damages for a breach of contract to employ the plaintiff in 
 "°' the part of 'Bertha Gessler' in a play called 'Excelsior Junior.' 
 The contract was in writing, and engaged the plaintiff in general 
 terms 'to render services at any theaters,' etc.; the plaintiff agreeing 
 'to conform to and abide by the rules and regulations adopted by said 
 Edward E. Rice for the government of said companies.' ... At the 
 hearing evidence was taken de bene that at the time of signing the 
 contract it was agreed that the general word 'services' meant services 
 in the particular part named. This evidence ultimately was rejected, 
 and the only question is whether it should have been admitted. 
 
 "We are of opinion that the evidence could not be received. . . . 
 The engagement- to render services expressed a general employment, 
 which could not be limited to a single part without contradiction; for 
 to give evidence requiring words to receive an abnormal meaning is 
 to contradict. It is settled that the normal meaning of language in a 
 written instrument no more can be changed by construction than it 
 can be contradicted by an .avowedly inconsistent agreement, on the 
 strength of the talk of the parties at the time when the instrument 
 was signed. . . . When evidence of circumstances or local or class 
 usage is admitted, it tends to show the ordinary meaning of the lan- 
 guage in the mouth of a normal speaker, situated as the party using 
 the language was situated; 'but to admit evidence to show the sense 
 in which the words were used by particular individuals is contrary to 
 sound principle.' Drummond v. Attorney General, 2 H. L. Cas. 837, 
 863. . . . The case of Keller v. Webb, 125 Mass. 88, goes a good way, 
 but was not intended, we think, to qualify the principle, settled by the 
 earlier and later Massachusetts cases, some of which we have cited. 
 In that case evidence of conversation was admitted to show that 
 'casks' in a written contract, meant casks of a certain weight. It was 
 assumed that the contract meant casks of some certain weight, but 
 did not state what, and thus that the evidence supplemented, without 
 altering, the written words. A similar explanation applies to Stoops v. 
 Smith, 100 Mass. 63."^ 
 
 the cases are familiar in which 'a thou- one. It would open too great riskj, if 
 
 sand' has been held to mean 'twelve hun- evidence were admissible to show that 
 
 dred,' 'a week' 'a week only during the when they said five hundred feet they 
 
 theatrical season,' 'a day" 'a working agreed it should mean one hundred 
 
 day.' " inches, or that Bunker Hill Monument 
 
 2 — Holmes, J., in Goode v. Riley, 153 should signify the Old South Church. An 
 
 Mass. 585, z8 N. E. 228 (1891): "You artificial construction cannot be pven to 
 
 cannot prove a mere private convention plain words by express agreement." 
 
 between the two parties to give language Compare the authorities cited in W., 
 
 a different meaning from its common § 2463. 
 
664 PAROL EVIDENCE RULE. No. 588. 
 
 WALLS V. BAILEY (1872). 
 4P N. Y. 463, 473. 
 
 This action was instituted to recover a balance alleged to be due to 
 the plaintiffs for plastering the defendant's house. The work in 
 question was done under a written contract, of which the fol- 
 ° lowing is a copy: 
 
 "Buffalo, N. Y., January 18, 1869. 
 
 "We hereby agree to do the plastering work of house now being 
 built by George Bailey, on Main street, at the prices named below, viz. : 
 
 "For one coat work, twenty-five cents per square yard. 
 
 "For two coat work with hard finish, thirty-three cents per square 
 yard. 
 
 "The prices to include all labor and cost of material, we paying 
 said Bailey the' invoice price for all laths purchased and supplied by 
 him. All work to be done with the 'International Lime Company's' 
 lime; the laths to be securely nailed before plastering, and all work 
 to be done in a good, workmanlike manner, and to the satisfaction of 
 said Bailey. 
 
 "Plastering with hydraulic cement, forty-five cents per square yard, 
 to be done in a good, workmanlike manner, and to the satisfaction of 
 said Bailey. Walls & Leck." 
 
 The plaintiffs claimed that in determining the number of square 
 yards for which they are entitled to pay, under the agreement, the 
 openings, including doors and windows, are to be measured as plaster- 
 ing. That in rooms plastered with two or three coat work, the part 
 of the work behind the cornice and base-board is to be measured as 
 though actually plastered with two or three coats, though the same 
 was only plastered with one coat. This claim was based on the as- 
 sumption that at the time the agreement was made it was the custom 
 of plasterers in the city of Buffalo to measure and charge for openings ; 
 and for wall not plastered, where the same was covered by a cornice 
 or base-board. The Court allowed proof of such custom to be given on 
 the trial under defendant's objections. Defendant was called as a 
 witness in his own behalf, and his counsel asked him this question: 
 "When you made the contract had you any knowledge of any custom 
 in Buffalo of measuring openings in measuring plastering?" This 
 was objected to and the Court excluded the testimony. The Court 
 charged that the contract was to be construed with reference to the 
 custom of the place where made, that such custom must be reasonable 
 and public, general and uniform, to which defendant excepted. The 
 jury found a verdict for the full amount claimed by the plaintiffs. 
 
 FoLGER, J. : "The contract between the parties was in writing. 
 By it the plaintiffs were to furnish the material for the plastering 
 
No. 588. D. INTERPRETATION OF LEGAL ACTS. 665 
 
 y 
 
 work of the defendant's house, and to do the work of laying it on. 
 The defendant was to pay them for the work and material a price 
 per square yard. Of course, the total of the compensation was to be 
 got at by measurement. But when the parties came to determine how 
 many square yards there were, they differed. The query was, the 
 square yards of what? Of the plaster actually laid on, or of the whole 
 side of the house, calling it solid, with no allowance for the openings 
 by windows and doors? . . . Evidence of usage is received, as is any 
 other parol evidence, when a written contract is under consideration. 
 It is to apply the written contract to the subject-matter, to explain 
 expressions used in a particular sense, by particular persons, as to 
 particular subjects, to give effect to language in a contract as it was 
 understood by those who made use of it. The jury, in the case before 
 -us, have found the existence of the usage contended for by the plain- 
 tiffs, and upon evidence which well sustains the finding. The same 
 evidence shows that the usage was uniform, continuous and well set- 
 tled. Nor was it one which was in opposition to well settled principles 
 of law, or which was unreasonable. . . . 
 
 "These views dispose of the points made by the appellant in this 
 court, save the one that the trial court erred in overruling the ques- 
 tion put to the defendant when on the stand as a witness in his own 
 behalf, to wit: 'When you made that contract, had you any knowledge 
 of any custom in Buffalo of measuring openings in measuring plaster- 
 ing?' ... It would seem, however, that upon principle, for a party 
 to be bound by a local usage, or a usage of a particular trade or pro- 
 fession, he must be shown to have knowledge or notice of its exist- 
 ence. For upon what basis is it that a contract is held to be entered 
 into with reference to, or in conformity with, an existing usage? 
 Usage is engrafted upon a contract or invoked to give it a meaning, 
 on the assumption that the parties contracted in reference to it; that 
 is to say, that it was their intention that it should be a part of their 
 contract wherever their contract in that regard was silent or obscure. 
 But could intention run in that way unless there was knowledge of 
 the way to guide it? No usage is admissible to influence the con- 
 struction of a contract unless it appears that it be so well settled, so 
 uniformly acted upon, and so long continued, as to raise a fair pre- 
 sumption that it was known to both contracting parties, and that they 
 contracted in reference thereto. There must be some proof that the 
 contract had reference to it, or proof arising out of the position of 
 the parties, their knowledge of the course of business, their knowledge 
 of the usage, or other circumstance from which it may be inferred or 
 presumed that they had reference to it. . . . The jury may presume, 
 from all the circumstances of the case, that knowledge or notice ex- 
 isted. ... It seems then, to come to this: Is the presumption, which 
 the jury may thus make conclusive, or may not that presumption be 
 repelled by express negatory proof of ignorance? When the defendant 
 
666 PAROL EVIDENCE RULE. Ko. 588. 
 
 proposed, by the question which was rejected, to offer evidence tending 
 to show his ignorance of the existence of the usage, he claimed no 
 more than to exercise the right of attempting, by direct evidence, to 
 repel the presumption of his knowledge, which might without that 
 proof, or perhaps in opposition to it, be made from the facts of the 
 case. ... In this view it was proper for the defendant to put and an- 
 swer the question rejected."^ 
 
 STOOPS V. SMITH (1868). 
 100 Mass. 63. 
 
 The defendant having agreed to pay the plaintiff "for inserting 
 business card in 200 copies of his advertising chart," the defendant, 
 refusing to pay, offered to show that the chart, as understood 
 "°" between them, meant a chart of cloth, to be posted up in two 
 hundred public places near Worcester, and that no chart had been so 
 made and posted. 
 
 Wells, J.: "The writing, upon which this action is brought, con- 
 tains a promise on the part of the defendant only. It recites, im- 
 perfectly and in general terms, the agreement to be performed on the 
 part of the plaintiff, as the consideration upon which the promise of 
 the defendant is made. At the trial, the defendant offered evidence 
 to show the whole arrangement between the parties; particularly the 
 representations of the plaintiff as to the material of which the chart 
 was to be made, and the manner in which it would be published; and 
 contended that he was not bound to pay, because the plaintiff had 
 failed so to make and publish the chart. The Court excluded the evi- 
 dence, and ruled that no evidence of extrinsic facts was admissible 
 for any purpose. 
 
 "The alleged representations related to that which was then in the 
 future, and were, in one aspect, of a promissory nature. The prin- 
 ciple of law is clear and well settled, that the obligation of a written 
 contract cannot be abridged or modified by or made conditional upon 
 another preceding or contemporaneous parol agreement, not referred 
 to in the writing itself. But it is equally well settled that, for the pur- 
 pose of applying the terms of the written contract to the subject 
 matter, and removing or explaining any uncertainty or ambiguity 
 which arises from such application, parol testimony is admissible, and 
 has a legitimate office. For this purpose, all the facts and circum- 
 stances of the transaction out of which the contract arose, including 
 the situation and relations of the parties, may be shown. The subject 
 matter of the contract may be identified by proof of what was before 
 the parties, by sample or otherwise, at the time of the negotiation. 
 The terms of the negotiation itself, and statements therein made, may; 
 
 3 — Compare the authorities cited in W., § 2464. 
 
No. 589. D. INTERPRETATION OF LEGAL ACTS. 667 
 
 be resorted to for this purpose. . . . The purpose of all such evidence 
 is, to ascertain in what sense the parties themselves used the ambigu- 
 ous terms in the writing which sets forth their contract. If the 
 previous negotiations make it manifest in what sense they understood 
 and used those terms, they furnish the best definition to be applied 
 in the interpretation of the contract itself. The effect must be limited 
 to definition of the terms used, and identification of the subject-matter. 
 If so limited, it makes no difference that the language of the negotia- 
 tions relates to the future, and consists in positive engagements on 
 the part of the other party to the contract. Their efifect depends, not 
 upon their promissory obligation, but upon the aid they afford in the 
 interpretation of the contract in suit. They are not the less effective 
 for the purpose of explanation and definition because they purport to 
 carry the force of obligation. The contract in suit may illustrate this 
 principle in a point that is not in dispute. The defendant agrees to 
 pay fifty dollars 'for inserting business card,' etc. In applying this 
 stipulation, if the defendant had a business card distinctively known 
 and recognized as such, there would be no difficulty in giving efifect 
 to the contract. But the identification of that card would involve the 
 whole principle of admitting parol evidence for the interpretation and 
 application of written contracts to the subject-matter. It could be 
 done only by the aid of parol testimony. Suppose he had several 
 business cards, differing in form and contents, but one was selected 
 and agreed upon for the purpose at the time the contract was signed; 
 or that one had been prepared specially for the purpose. Clearly parol 
 testimony would be competent to identify the card so selected or pre- 
 pared; and to prove that the parties assented to and adopted it as the 
 card to which the contract would apply. Suppose, thirdly, that no 
 such card had been selected or prepared, but its form, contents and 
 style had been described verbally and assented to, and the plaintiff 
 had agreed to insert it as so described. Such evidence may be resorted 
 to, not for the promise it contains, but for tlie aid it affords in fixing 
 the meaning and applying the general language of the written con- 
 tract. The same considerations render the evidence offered by the de- 
 fendant competent for similar purposes. The term 'his advertising 
 chart' requires to be practically applied. The representations of the 
 plaintiff are in the nature of a description of the vehicle by which the 
 publication of the business card was to be effected; and his account 
 of the disposition he proposed to make of the charts was a description 
 of the extent and the sense in which it was to be an 'advertising 
 chart.' "* 
 
 4 — Compare the authorities cited in W., S 2463. 
 
668 PAROL EVIDENCE RULE. No. 590. 
 
 RICKERSON V. HARTFORD FIRE INS CO. (1896). 
 I4P N. y. 307, 43 N. E. 856. 
 
 This action was founded upon a policy of fire insurance issued to 
 P. Sammet and J. Alexander by the Hartford Fire Insurance Company, 
 payable to the Washington Life Insurance Company, as mort- 
 gagee and as its interest might appear, upon premises known as 
 number 160 Mott street in the city of New York. ... On the first 
 of May, 1890, Sammet and Alexander transferred the property to the 
 plaintiff by a conveyance which described the premises by metes and 
 bounds, and also as "known and distinguished as number one hundred 
 and sixty Mott street," being the same description that there was in 
 the mortgage. At the same time, both policies were transferred to 
 the plaintiff, and the change of interest was duly noted and indorsed 
 thereon by the insurance companies. . , . The trial Court found that, 
 at the date of insurance, "there were two buildings on the lot known 
 as No. 160 Mott street. New York city, viz., a three-story brick 
 building, fronting on the street, twenty-five feet wide by forty-six feet 
 deep, with an extension, and a five-story brick building twenty-four 
 feet wide and thirty-nine feet deep." On the 13th of December, 1890, 
 a fire occurred that injured the three-story building to the amount of 
 a few hundred dollars, but which injured the five-story building to the 
 amount of several thousand dollars. The insurance companies repaired 
 the damage to the former only, and refused to pay any part of the 
 damage to the latter. The complaint was dismissed for the reason 
 that the policy did not cover the rear building, and that the defendant 
 had fulfilled its contract by repairing the damages to the front build- 
 ing. . . . 
 
 Vann, J. : "We have a policy which, if it had been read before the 
 fire by a person standing upon the premises and familiar with the 
 buildings and the way they were occupied, would leave him in doubt 
 whether the property insured embraced all the buildings or only a part. 
 For this ambiguity the company is responsible, because it prepared and 
 executed the contract, and the language used is wholly its own. While 
 it is the duty of the Court to so construe the policy as, if possible, to 
 give effect to every word used, if the sense in which they were used is 
 uncertain and the meaning is ambiguous, that meaning should be given 
 which is most favorable to the insured. . . . The trial Court, however, 
 resolved the doubt in favor of the insurer, as it found that the com- 
 pany 'intended to insure and did insure only the three-story brick 
 building situate on the front of the lot No. 160 Mott street in the city 
 of New York,' and that it 'did not intend to insure and did not insure 
 the five-story brick building situate on the rear of the lot No. 160 
 Mott street, New York city.' ... In finding the fact, it is reasonable 
 to presume that he was influenced by the testimony of the manager 
 
No. 590. D. INTERPRETATION OF LEGAL ACTS. 669 
 
 of the defendant in relation to that subject. He was asked: 'When 
 your company issued this policy on which this action is brought, which 
 building did you intend to insure?' This was objected to as 'incom- 
 petent, irrelevant and immaterial, and as calling for a conclusion;' but 
 the objection was overruled and the plaintiff excepted. The witness 
 answered, in substance, that he intended to insure the front building 
 only. He was then asked: 'Did you intend to insure more than one 
 building?' and subject to the same objection, ruling and exception, he 
 answered, 'No.' The witness was thus permitted to testify to the 
 secret operation of his own mind, although it had not been communi- 
 cated to the other party to the contract. He wrote the policy and 
 countersigned it, and in doing so stood for the company. When the 
 Court allowed him to state his intention in issuing the policy, it vir- 
 tually permitted one party to a written agreement to state what, he 
 meant by it, against the objection of the other. The writing, itself, 
 was the best evidence of the intent and meaning of the company. As 
 its meaning was ambiguous, evidence was properly received to place 
 the court in the position of the parties and enable it to appreciate the 
 force of the words they used in reducing the contract to writing. It 
 then became the duty of the Court, sitting without a jury, to decide 
 what the parties, thus situated, meant by the language employed. But 
 one party to a written contract cannot state how he understood it when 
 he signed it, nor testify as to its meaning or as to his intent. That 
 would be a violation of the rule that the writing is the best evidence 
 and would tend to destroy the effect of the promise. What the parties 
 intended should have been gathered from the contract, read in the 
 light of the circumstances surrounding them when they used the doubt- 
 ful words. Parol evidence was not admissible to show what either 
 party secretly intended, as that would add to or take from the writing 
 which is presumed to express the intention of both."^ 
 
 5 — Blackburn, J., in Grant v. Grant, L. of and concerning which they are used, 
 
 R. 5 C. P. 727, 729 (1870), quoting a and those only. This does not affect the 
 
 passage from his own treatise on Sales: law, but it is of some consequence in 
 
 "The principles of the rules of law regu- the application of it, as it narrows the 
 
 lating the admissibility of extrinsic evi- field of inquiry." 
 
 dence to aid the construction of wills Blackburn, J., in Smith v. Hughes, L. 
 and of contracts required to be in writ- R. 6 Q. B. 597, 607 (1871): "I appre- 
 ing, seem to be the same. But, in ap- hend that if one of the parties intends 
 plying them, it seems necessary to bear to make a contract on one set of terms, 
 in mind that there is a distinction be- and the other intends to make a contract 
 tween the two classes of instruments. The on another set of terms, or as it is some- 
 will is the language of the testator, so- times expressed, if the parties are not 
 liloquizing, if one may use the phrase, ad idem, there is no contract, unless the 
 and the Court in construing his language circumstances are such as to preclude one 
 may properly take into account all that of the parties from denying that he has 
 he knew at the time, in order to see in agreed to the terms of the other. The 
 what sense the words were used. But the rule of law is that stated in Freeman v. 
 language used in a contract is the Ian- Cooke, li, whatever a man's real inten- 
 guage used to another in the course of tion may be, he so conducts himself that 
 an isolated transaction, and the words a reasonable man would believe that he 
 must take their meaning from those things was assenting to the terms proposed by 
 
670 PAROL EVIDENCE RULEi No. 591. 
 
 II. SOURCES OF INTERPRETATION. 
 
 Sir James Wigram, V. C, Extrinsic Evidence in Aid of the In- 
 terpretation of Wills, Proposition V (1831) : "For the purpose of 
 determining the object of a testator's bounty, or the subject of 
 ^"*- disposition, or the quantity of interest intended to be given by his 
 will a Court may inquire into every material fact relating to the person 
 vifho claims to be interested under the will, and to the property which 
 is claimed as the subject of disposition, and to the circumstances of 
 the testator and of his family and affairs, for the purpose of enabling 
 the Court to identify the person or thing intended by the testator, or 
 to determine the quantity of interest he has given by his will. The 
 same (it is conceived) is true of every other disputed point, respect- 
 ing which it can be shown that a knowledge of extrinsic facts can, in 
 any way, be made ancillary to the right interpretation of a testator's 
 words."' 
 
 a. Exception for Declarations of Intention. 
 
 MILLER v. TRAVERS (1832). 
 8 Bing. 244. 
 
 Bill to establish the will of Sir John Edvi^ard Riggs Miller, Bart. 
 
 Tindal, C. J. : "The testator by his will, duly executed, devised 
 'all his freehold and real estates whatsoever, situate in the county 
 *'^^ of Limerick, and in the city of Limerick,' to certain trustees 
 therein named and their heirs. At the time of making his will he 
 had no real estate in the county of Limerick, but he had a small real 
 estate in the city of Limerick, and considerable real estates situate in 
 the county of Clare. The real estate in the city of Limerick is ad- 
 mitted to have passed under the devise; but the plaintiff contends that 
 he is at liberty to show by parol evidence that the testator intended 
 his estates in Clare also to pass under the same devise. 
 
 the other party, and that other party upon 6 — Sugden, L. C, in Attorney-General 
 
 that belief enters into the contract with v. Drummond, x Dr. & W. 356 (1842), 
 
 him, the man thus conducting himself interpreting a deed containing the words 
 
 would be equally bound as if he had in- "Christian" and "Protestant dissenter": 
 
 tended to agree to the other party's terms." "The Court is at liberty to inquire into 
 
 Compare the theory as stated by Mr. all the surrounding circumstances which 
 
 Justice Holmes, in "The Theory of Legal may have acted upon the minds of the 
 
 Interpretation," 12 Harv. L. Rev. 417: persons by whom the deed or will (it 
 
 "Each party to a contract has notice that matters not whether it was one or the 
 
 the other will understand his words accord- other) was executed. . . . The Court there- 
 
 ing to the usage ot the normal speaker fore has not merely a right, but it is its 
 
 of English under the circumstances and duty to inquire into the surrounding cir- 
 
 therefore cannot complain if his words cumstances, before it can approach the 
 
 are taken in that sense." construction of the instrument itself." 
 
 Compare the authorities cited in W., Professor James Bradley Thayer, Pre- 
 
 §§ 2466, 2467, and the doctrine of No. liminary Treatise on Evidence, 445 
 
 538, ante. (1898): "It had become possible for 
 
No. 592. D. INTERPRETATION OF LEGAL ACTS. 671 
 
 "The general character of the parol evidence which the plaintiff 
 contends he is at liberty to produce, in order to establish such inten- 
 tion in the devisor, is this ; first, that the estate in the city of Limerick 
 is so small and so disproportioned to the nature of the charges laid upon 
 it, and the trusts which are declared, as to make it manifest there must 
 have been some mistake; and in order to show what that mistake was, 
 the plaintiff proposes to prove that in the copy of the will which had 
 been submitted to the testator for his inspection, and had been ap- 
 proved and returned by him, the devise in question stood thus: 'All 
 my freehold and real estates whatsoever situate in the counties of 
 Clare, Limerick and in the city of Limerick;' that the testator directed 
 some alterations to be made in other parts of his will, and that the 
 same copy of the will, accompanied with a statement of the proposed 
 alterations, was sent by the testator's attorney to his conveyancer, in 
 order that such alterations might be reduced into proper form; and 
 that upon such occasion the conveyancer, besides making the alterations 
 directed, did by mistake, and without any authority, strike out the words 
 'counties of Clare' and substitute the words 'county of in lieu thereof, 
 so as to leave the devise in question in the same precise form as it now 
 stands in the executed will. The plaintiff further proposes to prove 
 that a fair copy of the will so altered was sent to the testator, who, 
 after having kept it by him for some time, executed the same in the 
 manner required by law, without adverting to the alteration above 
 pointed out. The plaintiff contends that he has a right to prove that 
 the testator intended to pass not only the estate in the city of Limerick, 
 but an estate in a county not named in the will, namely, the county of 
 Clare, and that the will is to be read and construed as if the word 
 Clare stood in the place of or in addition to that of Limerick. 
 
 "But this, it is manifest, is not merely calling in the aid of extrinsic 
 evidence to apply the intention of the testator,' as it is to be collected 
 from the will itself, to the existing state of his property; it is calling 
 in extrinsic evidence to introduce into the will an intention not apparent 
 from a defective or mistaken description; it is making the will speak 
 ■upon the face of the will. It is not simply removing a difficulty arising 
 upon a subject on which it is altogether silent, and is the same in ef- 
 fect as the filling up a blank which the testator might have left in his 
 will. It amounts, in short, by the admission of parol evidence, to the 
 making of a new devise for the testator, which he is supposed to have 
 omitted. Now, the first objection to the introduction of such evi- 
 dence is that it is inconsistent with the rule, which reason and sense lay 
 down, and which has been universally established for the construction 
 of wills, namely, that the testator's intention is to be collected from the 
 
 Wigram to lay it solidly down, over mate question arising in the interpreta- 
 
 -seventy years ago, that, with the excep- tion of writings and admissible under 
 
 -tion of direct statements of intention, the general rules of evidence, could be 
 
 no extrinsic fact, relevant to any legiti- shut out." 
 
672 PAKOL EVIDENCE RULE. No. 592. 
 
 words used in the will, and that words which he has not used cannot 
 be added. 
 
 "But it is an objection no less strong that the only mode of proving 
 the alleged intention of the testator is, by setting up the draft of the 
 will against the executed will itself. As, however, the copy of the will 
 which omitted the name of the county of Clare was for some time in 
 the custody of the testator, and, therefore, open for his inspection, 
 which copy was afterwards executed by him with all the formalities 
 required by the Statute of Frauds, the presumption is that he must have 
 seen and approved of the alteration, rather than that he overlooked it 
 by mistake. It is unnecessary to advert to the danger of allowing the 
 draft of the will to be set up as of greater authority to evince the 
 intention of the testator than the will itself, after the will has been 
 solemnly executed, and after the death of the testator. If such evidence 
 is admissible to introduce a new subject-matter of devise, why not also 
 to introduce the name of a devisee altogether omitted in the will? 
 If it is admissible to introduce new matter of devise, or a new devisee, 
 why not to strike out such as are contained in the executed will? The 
 effect of such evidence in either case would be, that the will, though 
 made in form by the testator in his lifetime, would really be made by 
 the attorney after his death; that all the guards intended to be intro- 
 duced by the Statute of Frauds would be entirely destroyed, and the 
 statute itself virtually repealed. And upon examination of the decided 
 cases on which the plaintiff has relied in argument, no one will be 
 found to go the length of supporting the proposition which he con- 
 tends for; on the contrary, they will all be found consistent with the 
 distinction above adverted to, — that an uncertainty which arises from 
 applying the description contained in the will either to the thing de- 
 vised or to the person of the devisee, may be helped by parol evidence; 
 but that a new subject-matter of devise, or a new devisee, where the 
 will is entirely silent upon either, cannot be imported by parol evidence 
 into the will itself."^ 
 
 THE LORD CHEYNEY'S CASE (1591). 
 5 Co. Rep. 68a. 
 
 Devise to his son H. and the heirs of his body, and then to T. C. 
 and the heirs male of his body, on condition "that he or they or any 
 of them" shall not alienate. Proof by witnesses that it was "the 
 "^* intent and meaning of the testators" to include under "he or 
 they" his son H., as well as T. C, was excluded; "he should not be 
 received to such averment out of the will." "But- if a man has two 
 sons, both baptized by the name of John, and conceiving that the elder^ 
 
 7 — Compare the authorities cited in W., § 2471. 
 
No. 594. D. INTERPRETATION OF LEGAL ACTS. 673 
 
 who had been long absent, is dead, devises his land by his will in writ- 
 ing to his son John generally, and in truth the elder is living, — in this 
 case the younger son may in pleading or in evidence allege the devise 
 to him, and if it be denied, he may produce witnesses to prove his 
 father's intent, that he thought the other to be dead, or that he at the 
 time of the will named his son John the younger, and the writer left out 
 the addition of the younger." 
 
 Sir Francis Bacon, Maxims, rule XXV, circa 1597 (Works, Sped- 
 ding's ed., 1861, vol. XIV, p. 273) : "There bej two sorts of ambiguities 
 of words ; the one is ambiguitas patens and the other is ambiguitas 
 latens. Patens is that which appears to be ambiguous upon 
 the deed or instrument; latens is that which seemeth certain and with- 
 out ambiguity for an3rthing that appeareth upon the deed or instrument, 
 but there is some collateral matter out of the deed that breedeth the 
 ambiguity, [i] Ambiguitas patens is never holpen by averment, and 
 the reason is, because the law will not couple and mingle matter of 
 specialty, which is of the higher account, with matter of averment, 
 which is of inferior account in law; for that were to make all deeds 
 hollow and subject to averment, and so, in effect, that to pass without 
 deed, which the law appointeth shall not pass but by deed. Therefore 
 if a man give land to I. D. et I. S. hoeredibus, and do not limit to 
 whether of their heirs ; it shall not be supplied by averment to whether 
 of them the intention was the inheritance should be limited. [2] 
 But if it be ambiguitas latens, then otherwise it is. As I grant my 
 manor of S. to I. F. and his heirs, here appeareth no ambiguity at all 
 upon the deed; but if the truth be that I have the manors both of 
 South S. and North S. this ambiguity is matter in fact; and therefore 
 it shall be holpen by averment, whether of them it was that the parties 
 intended should pass. [3] Another sort of ambiguitas latens is cor- 
 relative unto this : for this ambiguity spoken of before is, when one 
 name and appellation doth denominate divers things; and the second 
 is, when the same thing is called by divers names. As if I give lands 
 to Christ Church in Oxford, and the name of the corporation is 
 Ecclesia Christie in Universitate Oxford; this shall be holpen by aver- 
 ment, because there appears no ambiguity in the words : for the variance 
 is matter in fact. But the averment shall not be of the intention, be- 
 cause it does not stand with the words. For in the case of equivocation 
 the general intent includes both the special, and therefore stands with 
 the words; but so it is not in variance; and therefore the averment 
 must be a matter that doth induce a certainty, and not of intention; 
 as to say that the precinct of 'Oxford' and of 'the University of Ox- 
 ford' is one and the same, and not to say that the intention of the 
 parties was that the grant should be to Christ Church in the University 
 of Oxford." 
 
674 PAROL EVIDENCE RULE. ' No. 595. 
 
 DOE dem. GEORGE GORD v. NEEDS (1836). 
 2 M. & W. 129. 
 
 Ejectment for a house and garden, claimed by the plaintiff under the 
 will of John Spark, which gave various property to "John Gord," to 
 "John Gord the son of George Gord," to George Gord the 
 son of George Gord," and then proceeded: "Also I give and 
 bequeath unto Ann Needs, until the decease of George Needs and Jane 
 Needs, the lower house and garden; and after their decease to George 
 Gord, the son of Gord, and his assigns. Also I give and bequeath 
 unto George Gord, the son of John Gord, the sum of ten pounds, and to 
 Jane and Elizabeth, the two daughters of the said John Gord, the sum 
 of five pounds each. Also I give and bequeath unto Mary Gord, the 
 daughter of George Gord, the sum of five pounds, and to George 
 Gord the son of the said George Gord, the sum of ten pounds, and to 
 John Gord, one other son of the said George Gord, the sum of twenty 
 pounds." The lessor of the plaintiff, who was the George Gord, the 
 son of George Gord, mentioned in the will, claimed the premises in 
 question under the devise to "George Gord, the son of Gord," and 
 offered evidence of declarations by the testator, showing that he, the 
 lessor of the plaintiff, was the intended devisee in remainder of the 
 "lower house and garden." It was contended for the defendant that 
 this evidence was not admissible, but the learned judge overruled the 
 objection. 
 
 Park, B. : "The only point therefore remaining to be considered is 
 whether evidence was properly admitted of the devisor's declarations 
 to show what person he meant to designate by the description of 
 'George Gord, the son of Gord.' And we are of opinion that such evi- 
 dence was properly admitted. 
 
 "If, upon the face of the devise, it had been uncertain whether the 
 devisor had selected a particular object of his bounty, no evidence 
 would have been admissible to prove that he intended a gift to a cer- 
 tain individual; such would have been a case of ambiguitas patens, 
 within the meaning of Lord Bacon's rule (Maxims, 25), Vi^hich am- 
 biguity could not be holpen by averment; for to allow such evidence 
 would be, with respect to that subject, to cause a parol will to operate 
 as a written one; or, adopting the language of Lord Bacon, 'to make 
 that pass without writing, which the law appointeth shall not pass but 
 by writing.' But here, on the face of the devise, no such doubt arises. 
 There is no blank before the name of Gord the father, which might 
 have occasioned a doubt whether the devisor had finally fixed en any 
 certain person in his mind. The devisor has clearly selected a particu- 
 lar individual as the devisee. 
 
 "Let us then consider, what would have been the case, if there had 
 been no mention in the will of any other George Gord, the son of a 
 Gord; on that supposition there is no doubt, upon the authorities, but 
 
No. 596. D. INTERPRETATION OF LEGAL ACTS. 675 
 
 that evidence of the devisor's intention as proved by his declarations, 
 would have been admissible. Upon the proof of extrinsic facts, which 
 is always allowed in order to enable the Court to place itself in the 
 situation of the devisor, and to construe his will, it would have ap- 
 peared that there were at the date of the will two persons, to each of 
 whom the description would be equally applicable. This clearly re- 
 sembles the case put by Lord Bacon oT a latent ambiguity, as where 
 one grants his manor of S. to J. F. and his heirs, and the truth is that 
 he has the manors both of North S. and South S. ; in which case Lord 
 Bacon says, 'it shall be holden by averment, whether of them was that 
 which the party intended to pass.' The case is also exactly like that 
 mentioned by Lord Coke in Altham's Case, 8 Rep. 155 a; 'If A. levies 
 a fine to William his son, and A. has two sons^named William, the aver- 
 ment that it was his intent to levy the fine to the younger is good, and 
 stands well with the words of the fine.' Another case is put in Coun- 
 den V. Clarke, Hob. 32, which is in point, — 'if one devise to his son 
 John, where he has two sons of that name :' and the same rule was 
 acted upon in the recent case of Doe v. Morgan, i C. & M. 235. The 
 characteristic of all these cases is, that the words of the will do describe 
 the object or subject intended; and the evidence of the declarations of 
 the testator has not the effect of varying the instrument in any way 
 whatever; it only enables the Court to reject one of the subjects, or 
 objects, to which the description in the will applies ; and to deter- 
 mine which of the two the devisor understood to be signified by the 
 description which he used in the will."'^ 
 
 MILLER V. TRAVERS (1832). 
 8 Bing. 244. 
 
 The facts are stated ante, No. 592. 
 
 TiNDAL, C. J.: "The cases to which this construction (ambiguitas 
 verborum latens veriAcatione suppletur) applies will be found 
 to range themselves into two separate classes. . . . The first 
 class is, where the description of the thing devised, or of the devisee, is 
 clear upon the face of the will; but upon the death of the testator it is 
 found that there are more than one estate or subject-matter of devise, 
 or more than one person whose description follows out and fills the 
 words used in the will. As where the testator devises his manor of 
 Dale, and at his death it is found that he has two manors of that name. 
 South Dale and North Dale; or where a man devises to his son John, 
 and he has two sons of that name. In each of these cases respectively 
 parol evidence is admissible to show which manor was intended to 
 pass, and which son was intended to take. The other class of cases is 
 that in which the description contained in the will of the thing intended 
 
 1 — Compare the authorities cited in W., §§ 2472, 2473. 
 
676 . PAROL EVIDEKCE RULE. No. 596." 
 
 to be devised, or of the person who is intended to take, is true in part, 
 but not true in every particular. As where an estate is devised called 
 A., and is described as in the occupation of B., and it is found, that 
 though there is an estate called A., yet the whole is not in B.'s occu- 
 pation; or where an estate is devised to a person whose surname or 
 Christian name is mistaken; or whose description is imperfect or in- 
 accurate; in which latter class of cases parol evidence is admissible to 
 show what estate was intended to pass, and who was the devisee in- 
 tended to take, provided there is sufficient indication of intention ap- 
 pearing on the face of the will to justify the application of the evi- 
 dence." 
 
 DOE dem. SIMON HISCOCKS v. JOHN HISCOCKS (1839). 
 5 M. & W. 363. 
 
 Abinger, L. C. B. : "This was an action of ejectment, brought on the 
 demise of Simon Hiscocks against John Hiscocks. The question turned 
 on the words of a devise in the will of Simon Hiscocks, the grand- 
 **"' father of the lessor of the plaintiff and of the defendant. By 
 his will, Simon Hiscocks, after devising estates to his son Simon for 
 life, and from and after his death to his grandson, Henry Hiscocks, 
 in tail male, and making, as to certain other estates, an exactly similar 
 provision in favor of his son John for life; then, after his death, the 
 testator devises those estates to "my grandson, John Hiscocks, eldest 
 son of the said John Hiscocks.' It is on this devise that the question 
 wholly turns. In fact, John Hiscocks, the father, had been twice mar- 
 ried; by his first wife he had Simon, the lessor of the plaintiff, his 
 eldest son; the eldest son of the second marriage was John Hiscocks, 
 the defendant. The devise, therefore, does not, both by name and 
 description, apply to either the lessor of the plaintiff, who is the eldest 
 son, but whose name is Simon, nor to the defendant, who, though his 
 name is John, is not the eldest son. The cause was tried before Mr. 
 Justice Bosanquet, at the Spring Assizes for the County of Devon, 
 1838, and that learned judge admitted evidence of the instructions of 
 the testator for the will, and of his declarations after the will was 
 made, in order to explain the ambiguity in the devise, arising from 
 this state of facts; and the verdict having been found for the lessor of 
 the plaintiff, a rule has been obtained for a non-suit or new trial, on the 
 ground that such evidence of intention was not receivable in this case. 
 And after fully considering the question, which was very well argued 
 on both sides, we think that there ought to be a new trial. 
 
 "The object in all cases is to discover the intention of the testator. 
 The first and most obvious mode of doing this is to read his will as he 
 has written it, and collect his intention from his words. But as his 
 words refer to facts and circumstances respecting his property and his 
 family, and others whom he names or describes in his will, it is evident 
 
No. 597. D. INTERPRETATION OF LEGAL ACTS. 677 
 
 that the meaning and application of his words cannot be ascertained, 
 -without evidence of all those facts and circumstances. To understand 
 the meaning of any writer, we must first be apprised of the persons and 
 circumstances that are the subjects of his allusions or statements; and 
 if these are not fully disclosed in his work, we must look for illustration 
 to the history of thei times in which he wrote, and to the works of con- 
 temporaneous authors. All the facts and circumstances, therefore, re- 
 specting persons or property, to which the will relates, are undoubtedly 
 legitimate, and often necessary evidence, to enable us to understand the 
 meaning and application of his words. Again, the testator may have 
 habitually called certain persons or things by peculiar names, by which 
 they were not commonly known. If these names should occur in his 
 will, they could only be explained and construed by the aid of evi- 
 dence to show the sense in which he used them, in like manner as if 
 his will were written in cypher, or in a foreign language. The habits 
 of the testator in these particulars must be receivable as evidence to 
 explain the meaning of his will. 
 
 "But there is another mode of obtaining the intention of the testator, 
 which is by evidence of his declarations, of the instructions given for 
 his will, and other circumstances of the like nature, which are not ad- 
 duced for explaining the words or meaning of the will, but either to 
 supply some deficiency, or remove some obscurity, or to give some 
 effect to expressions that are unmeaning or ambiguous. 
 
 "Now, there is but one case in which it appears to us that this sort of 
 evidence of intention can properly be admitted, and that is, ■ where the 
 meaning of the testator's words is neither ambiguous nor obscure, and 
 where the devise is on the face of it perfect and intelligible, but, from 
 some of the circumstances admitted in proof, an ambiguity arises, as to 
 which of the two or more things, or which of the two or more persons 
 (each answering the words in the will), the testator intended to ex- 
 press. Thus, if a testator devise his manor of S. to A. B., and has two 
 manors, of North S. and South S., it being clear he means to devise one 
 only, whereas both are equally denoted by the words he has used, in 
 that case there is what Lord Bacon calls "an equivocation," i. e., the 
 words equally apply to either manor, and evidence of previous inten- 
 tion may be received to solve this latent ambiguity; for the intention 
 shows what he meant to do; and when you know that, you immedi- 
 ately perceive that he has done it by the general words he has used, 
 which, in their ordinary sense, may properly bear that construction. 
 
 "It appears to us that, in all other cases parol evidence of what was 
 the testator's intention ought to be excluded, upon this plain ground, 
 that his will ought to be made in writing; and if his intention cannot 
 be made to appear by the writing, explained by circumstances, there is 
 no will. Where the description is partly true as to both claimants, and 
 no case of equivocation arises, what is to be done is to determine 
 whether "the description means the lessor of the plaintiff or the de- 
 
678 PAROL EVIDENCE RULE. No. 597. 
 
 fendant. The description, in fact, applies partially to each, and it is 
 not easy to see how the difficulty can be solved. If it were res integra, 
 we should be much disposed to hold the devise void for uncertainty; 
 but the cases of Doe v. Huthwaite, 3 B. & Aid. 632, Bradshaw v. Brad- 
 shaw, and others, are authorities against this conclusion. If, therefore, 
 by looking at the surrounding facts to be found by the jury, the Court 
 can clearly see, with the knowledge which arises from those facts alone, 
 that the testator meant either the lessor of the plaintiff or the defendant, 
 it may so decide, and direct the jury accordingly. But we think that, 
 for this purpose, they cannot receive declarations of the testator of 
 ' what he intended to do in making his will." 
 
 WILLARD V. DARRAH (1902). 
 168 Mo. 660, 68 S. W. 1023. 
 
 Devise to "my well-beloved nephews J. and W. W." The testator 
 had two grandnephews so named and also two grandsons so named, 
 the latter being his intimates and the former being personally 
 ""^ unknown to him. Evidence of his repeated declarations that he 
 had bought this land for them and that he had instructed the scrivener 
 in their favor was admitted. 
 
 Brace, P. J.: "The devise is 'to my well-beloved nephews John 
 and William Willard' ; and it is found from the indirect parol evidence 
 that there are two sets of brothers, each named John and William 
 Willard, — the plaintiff and his brother, 'well-beloved' grandsons of the 
 testator, and two grandnephews, not 'well-beloved' of him, and having 
 no legal or moral claim on his bounty. As to each of these sets of 
 brothers the description contained in the will is partly correct and 
 partly incorrect. It is correct as to the Christian and surnames of 
 each set. It is correct as to neither in the superadded description of 
 relationship to the testator, as the word 'nephew' simpliciter, cannot 
 be held to include grandnephews, and the inapplicability in this case is 
 re-enforced by the word "beloved' prefixed thereto. So that the descrip- 
 tion in the will, when it comes to be applied to those only who can pos- 
 sibly have been intended, is just as equivocal in point of fact as if these 
 additional words of description had been omitted, as in the first case 
 supposed. The description of the persons is partly correct and partly 
 incorrect, leaving something equivocal. The description does not apply 
 precisely to either of these two sets of brothers, but it is morally and 
 legally certain that it was intended to apply to one or the other, thus 
 bringing the case within the rule established by the second class of 
 cases, in which direct or extrinsic parol evidence, including expressions 
 of intention, is admissible. Such evidence was therefore admissible in 
 this case, in order to solve a latent ambiguity produced by extrinsic evi- 
 dence in the application of the terms of the will to the objects of the 
 
No. 599. D. INTERPRETATION OF LEGAL ACTS. 679 
 
 testator's bounty, to prevent the fourth clause of the will from perish- 
 ing, and obviate a partial intestacy of the testator. Its effect is not 
 to establish an intention different in essence from that expressed in the 
 will, but to let in light by which that intention, rendered obscure by out- 
 side circumstances, may be more clearly discerned, and the will of the 
 testator, in its entire scope, effectuated according to his true intent and 
 meaning."^ 
 
 b. Exception for "Falsa Demonstratio." 
 
 WISEMAN V. GREEN (1900). 
 127 N. C. 288, 37 S. E. 272. 
 
 FuRCHES, J. : "This is an action for possession of a small piece of 
 land lying on Toe river, in Mitchell county, on which there is an old 
 grist and saw mill, said to contain two acres. . . . The land in 
 controversy at one time belonged to Alexander Wiseman, and 
 both plaintiff and defendant claim title under him. In 1871 the sheriff 
 of Mitchell county, having an execution in his hands against Alexander 
 Wiseman, undertook to lay off his homestead, and to sell the excess 
 under said execution. Among other lands sold by the sheriff as such 
 excess, he sold two acres of land lying on rtie Toe river, 'on which is 
 situated one saw and grist mill, known as "A. Wiseman's Mill" ;' and 
 the deed contains the following calls : 'Beginning on the southeast bank 
 of Toe river, two rods below the mill house, and runs west, north, 
 east and south, to the beginning, so as to include the mill and site 
 and two acres of land, it being and including the land sold as the ex- 
 cess of the homestead of A. Wiseman.' It appears from the survey 
 and the evidence in the case that the land contained in the calls of this 
 deed does not include the saw mill, nor the grist mill, nor the mill site. 
 But, if the first call 'west' is reversed, and read 'east' instead of 'west,' 
 the description in the deed, 'beginning on the southeast bank of the 
 Toe river, two rods below the mill house,' will include both the saw 
 and grist mill and mill site. The plaintiff claims that the word 'west' 
 should have been written 'east,' and was written 'west' by mistake, — 
 was an inadvertence, a slip of the pen, — and should be corrected. The 
 defendant contends that there is no mistake, inadvertence, or slip of 
 the pen about it, and that there is nothing to correct; that, instead of 
 its being a correction, it would be a change of the deed, which the Court 
 has no right to make. . . . But it seems to be well settled that the 
 Court has the right to construe a deed, and, in proper cases, to correct 
 an inadvertence, — a 'slip of the pen,' — when it plainly appears from the 
 deed itself. . . The sheriff's deed under which the plaintiff claims 'iti- 
 
 I— Compare the authorities cited in W., § 2474. 
 
680 PAROL EVIDENCE RULE. No. 599. 
 
 eludes the saw and grist mill and mill site,' and the deed must be run so 
 as to include them. The mill is what is considered in law a permanent 
 object, a natural boundary or location, and is the most certain part of 
 the description contained in the deed, and controls the other calls there- 
 in. The beginning corner is certain; no mistake about that, — two rods 
 below the millhouse, on the southeast bank of the river. To begin at 
 that point and run "west,' as the deed calls, and then with the other 
 calls in the deed, you entirely miss the mill house and the mill site. But 
 to commence at this known beginning corner, thence 'east,' and then 
 with the other calls in the deed, you include both mill house and the 
 mill site. It seems to us that common sense, justice, law, and the 
 precedents of this Court sustain the ruling of the Court, and the find- 
 ing of the jury that 'west' was a mistake, and should have been writ- 
 ten 'east.' This being so, the Court does not change the deed, but only 
 puts a legal construction upon it, which creates no new rights, nor does 
 it affect the rights of others."^ 
 
 WINKLEY V. KAIME (1855). 
 32 N. H. 268. 
 
 Ea.stman, J. : "The demandant declares for fortj acres of land, 
 more or less, of lot No. 97, in the 2d division in Barnstead. The case 
 was turned into an agreed one at the trial, and we take the 
 evidence as finding the facts. The first step in the demandant's 
 title is a devise from Benjamin Winkley to the demandant, of 'thirty- 
 six acres, more or less, in lot 37 in the 2d division in Barnstead, being 
 same I purchased of John Peavey.' It is apparent that here is a 
 radical difference between the description of the premises demanded 
 and those contained in the devise ; the land demanded being a part of lot 
 No. 97, and that bequeathed being a part of lot No. 37. The plaintiff 
 contends that there is a latent ambiguity in the devise, and that the 
 testator intended to bequeath to him the land in lot 97, as set forth in 
 his declaration, and not 37. To prove this, parol evidence was intro- 
 duced on the trial, tending to show that the lands occupied by Peavey 
 
 2 — Caton, C. J., in Myers, v. Ladd, 26 my residence was outside the city limits. 
 111. 415, 417 C1861): "If I give a bill So if a deed describe lands by its cor- 
 of sale of my black horses, and describe rect numbers, and further describe it as 
 them as being now in my^barn, I shall being situated in a wrong county, the 
 not avoid it by showing that the horses latter is rejected. The rule is, that where 
 were in the pasture or on the road. The there are two descriptions in a deed, the 
 description of the horses being sufficient one, as it were, superadded to the other, 
 -to enable witnesses acquainted with my and one description being complete and 
 stock to identify them, the locality speci- sufficient in itself, and the other, which 
 ■fied would be rejected as surplusage. Nor is subordinate and superadded, is incor- 
 is this rule confined to personal prop- rect, the incorrect description, or feature 
 erty. It is equally applicable to real or circumstance of the description, is re- 
 estate. If I sell an estate, and describe jected as surplusage, and the complete 
 it as my dwelling house in which I now and correct description is allowed to stand 
 reside, situate in the city of Ottawa, 1 alone." 
 shall not avoid the deed by showing that 
 
No. 601. D. INTERPRETATION OF LEGAL ACTS. 681 
 
 were a part of 97 in the 2d division, and that there is no such lot as 
 37 in the 2d division in that town. 
 
 "There is nothing ambiguous in the terms of this devise, but the 
 evidence shows that, as it stands, it cannot take effect, for there is 
 no such lot as No. 37 in the 2d division. The ambiguity is latent ; shown 
 so to be by the evidence; and if that stands well with the words of the 
 will, it will be competent, as showing the meaning and intention of the 
 testator. Without going into any extended examination of the ques- 
 tion of latent ambiguity at the present time, it is sufficient for the pres- 
 ent case to say that it appears to come very properly under the rule of 
 falsa demontratio non nocet; the principle being, that if there is a suffi- 
 cient description of the land devised, or of the person of the devisee in- 
 tended by the testator, independent of the erroneous description, the 
 will will take effect. ... By rejecting the words and figures, 'in lot 
 37,' in this devise, it will stand thus, 'thirty-six acres, more or less, in 
 2d division in Barnstead, being same I purchased of John Peavey.' 
 What the testator purchased of Ptavey is shown to be in the 2d 
 division; is bounded, and answers in all respects to the description 
 in the devise, except the number of the lot. The extrinsic evidence 
 thus manifestly shows what must have been the intention of the testa- 
 tor, and, both upon the doctrine of the authorities and the justice of the 
 case, we think the devise should be made to take effect." 
 
 KURTZ V. HIBNER (1870). 
 55 III- 5H- 
 
 Bill for petition by John Hibner and others, children and heirs of 
 John Hibner, deceased, against Charles, Elizabeth and James Kurtz, 
 the latter claiming under a will of John Hibner. The Circuit 
 " Court refused to hear parol evidence, to explain the language of 
 the will. The relevant provisions of the will were the following: 
 "Third — I give and bequeath to my daughter, Elizabeth Kurtz, all that 
 tract or parcel of land situate in the town of Joliet, Will County, Illi- 
 nois, and described as follows : The west half of the southwest quarter 
 of section 32, township 35, range 10, containing eighty acres, more or 
 less, together with all the appurtenances thereunto belonging, or in 
 anywise appertaining." "Seventh — I give and bequeath to my grandson, 
 James Kurtz, all that part or parcel of land described as the south half 
 of the east half of the south quarter section 31, in township 35, range 
 10, containing forty acres, more or less." 
 
 Appellants offered to prove that the testator, at the time of his 
 death owned only one eighty-acre tract, in township thirty-five, which 
 was the one described in the bill; that a mistake was made in drafting 
 the will, by the insertion of the words "section thirty-two," instead of 
 "section thirty-three;" that Charles and Elizabeth Kurtz had been in 
 
682 PAROL EVIDENCE RULE. No. 601. 
 
 the actual possession of the tract for a number of years, and upon the 
 repeated promise of the testator in his lifetime, that he would give the 
 same to Elizabeth, had made lasting and valuable improvements, at 
 their own expense, on the land — had fenced it, and erected thereon a 
 dwelling-house, barn and corn cribs, dug wells and set out fruit- 
 trees. Appellants also offered to prove that James Kurtz, at the time 
 of the death of the testator, was in the actual possession of the forty- 
 acre tract, as the tenant of the deceased, and that the draughtsman of 
 the will, by mistake, inserted the word "one," after the words "section 
 thirty," instead of "two," so as to bequeath to James land in section 
 thirty-one instead of section thirty-two. This evidence was rejected by 
 the Court, on the hearing. 
 
 Thornton, J.: "It has been strongly urged by counsel for appel- 
 lants, that this evidence should have been received, for the purpose of 
 ascertaining the intention of the testator. The law requires that all 
 wills of lands shall be in writing, and extrinsic evidence is never admis- 
 sible, to alter, detract from, or add to, the terms of a will. To permit 
 evidence, the effect of which would be to take from a will plain and 
 unambiguous language, and insert other language in lieu thereof, would 
 violate the foregoing well-established rule. For the purpose of de- 
 termining the object of a testator's bounty, or the subject of disposition, 
 parol evidence may be received, to enable the court to identify the 
 person or thing intended. In this regard, the evidence offered afforded 
 no aid to the Court. . . . The thing devised is certain and specific. 
 Section, township, and range are given. The evidence offered, as to 
 the mistake in the section, would have made a new and different will. 
 . . . The case of Riggs v. Myers, 20 Mo. 239, is also cited by counsel 
 for appellants. That case is very different from the one under con- 
 sideration. The testator, in that case, made a full disposition of all 
 his estate, and then described certain lands, locating them in a town- 
 'ship in which he owned no lands. The land, intended to be devised, 
 was, however, identified, by reference to 'the big spring' upon it. In 
 the case before the Court there is no disposition, either specifically 
 or generally, of the lands in the bill mentioned. We think, there- 
 fore, there was no error." 
 
 NOTES UPON KURTZ v. HIBNER. 
 10 American Law Register, New Series, 93 (1^71). 
 
 Isaac F. Redfield, C. J. (of Vermont), editor of the Register: 
 "We regret the necessity of dissenting, so entirely as we must, from 
 the argument and conclusions of the learned judge in the fore- 
 " going opinion. . . . The Court say, indeed, that the evidence 
 
 was offered by the appellants for the purpose of showing that the 
 will was by mistake drawn differently from what the testator intended. 
 
No. 602. D. INTERPRETATION OF LEGAL ACTS. 683 
 
 That precise point was immaterial, and the evidence was not, strictly 
 speaking, admissible for that purpose. That would be to add a new 
 term to the will by making it read, in terms, as the testator would 
 have had it made, if he had recollected the numbers of the sections 
 in which his lands lay, which can never be done. . . . But nothing is 
 more common, or we might say universal, than to receive oral proof 
 to show, that language was used in a peculiar sense, or that one term 
 was used for another, or that an essential term, to make the definition 
 perfect, was wholly omitted, or erroneously stated. . . . One rule upon 
 the subject is so thoroughly established as to have become a maxim 
 in the law, falsa demonstratio non nocet. The practical meaning of 
 this maxim is, that however many errors there may be in the descrip- 
 tion, either of the legatee or of the subject-matter of the devise, it 
 will not avoid the bequest, provided enough remains to show, with 
 reasonable certainty, what was intended. ... In the principal case, 
 there could be no question of the admission of oral evidence to show 
 the state and extent of the testator's property, in order to place the 
 court in the same position the testator was at the time he made the 
 will. No reasonable man could question this upon the decided cases. 
 This being done, it appears the testator had no such land as that 
 described, in the particular sections named. This reniiered it clear, 
 absolutely certain, we may say, that the sections named were erroneous 
 and could have no possible operation, and must be rejected. The de- 
 vise then was the same as if the sections had not been named at all, 
 or had been named, leaving the numbers blank. We are then com- 
 pelled to fall back upon the remaining portion of the description, 
 'eighty acres of land in range ten, in township thirty-five,' and 'forty 
 acres of land in range ten, in township thirty-five;' and, upon inquiry, 
 we find precisely such pieces of land in 'range ten, in township thirty- 
 five,' belonging to the testator. This renders the devise as certain as 
 it is possible to make it. . . . We trust we have not failed to express 
 our views in regard to the foregoing case with all that moderation 
 and respect which is due to the decision of so learned and able a 
 court, and which we most sincerely feel. But that the decision is 
 fatally and flagrantly erroneous there can be no more question or 
 doubt than of the axioms of geometry or the propositions in the most 
 «xact sciences." 
 
 John D. Caton, J. (of Illinois), ib. p. 353: "1 have perused with 
 some care and much interest the reports of the case of Kurtz v. Hib- 
 ner et al., ante, p. 93, and the editorial note appended, in which the 
 learned e4itor feels compelled to dissent from the conclusions of the 
 court, as announced in the opinion of Mr. Justice Thornton. The 
 principle involved is of the highest importance, and is worthy of the 
 most careful consideration of the profession. From the best considera- 
 tion which I have been able to give the subject, I am constrained to 
 the conclusion that the decision of the Court is right, and that the 
 •editor has fallen into an error. The great learning and deservedly 
 
684 PAROL EVIDENCE RULE. No. 602. 
 
 high reputation of the editor who wrote that note, and the profound 
 respect I have ever entertained for him as an eminent jurist, whose 
 labors have done much to advance the science of the law, have caused 
 me to hesitate long before allowing myself to disagree with him. 
 
 "The fundamental error of the editor, in my apprehension, con- 
 sists in his assuming that necessarily the testator designed to devise 
 land to which he had a present existing title. To maintain this as- 
 sumption we must find that the Court, as a matter of law, must declare 
 that it was impossible for the testator to intend to devise property to 
 which he had not a present title, when there is no expression in the 
 will intimating such a purpose. I have met with no case, and cer- 
 tainly none that has been cited in the editorial note, in which such a 
 doctrine is intimated. While in the particular case we may admit 
 that this is most probably true, we must also admit that it is not neces- 
 sarily so, and the Court had no warrant for saying, as matter of law, 
 or as a necessary legal conclusion, that such was the case; and hence 
 it had no right to act upon such a conclusion. We may suppose a 
 thousand cases in which the testator would devise a particular piece 
 of land to which he at the time had no title. It is sufficient to sug- 
 gest the case of an honest mistake as to the ownership, or of a 
 contemplated purchase. At any rate, he had a right to do so, and so 
 it has no doubt been done by ten thousand before him through mis- 
 apprehension or even caprice. The devise in this will is of 'the west 
 half of the south-west quarter, section 32, township 35, range 10, con- 
 taining 80 acres, more or less.' Here then we have the range, the 
 township, the section, the quarter section, and the half-quarter section 
 set down, and nothing more. The description is complete and definite, 
 but we find nowhere a single word of additional description. We find no 
 attempt to duplicate the description as 'my' land, or 'in the possession of 
 A. B.,' or 'on which is the Big Spring,' or 'my land on the Bluff', 
 nor any other single word on which the Court may seize to enable 
 it, with the aid of parol proof, to say that thirty-two was a false de- 
 scription, and so reject it, and still determine from the words of the 
 will that section thirty-three was in truth meant. Strike the word 
 'thirty-two' from this description and the whole is left entirely unin- 
 telligible, for there is nothing else in the will to supply its place. 
 
 "I entirely agree with the learned editor, in his definition of the 
 maxim falsa demonstratio nan nocet. He says, 'The practical mean- 
 ing of this maxim is, that however many errors there may be in the 
 description, either of the legatee or of the subject-matter of the de- 
 vise, it will not avoid the bequest, provided enough remains to show, 
 •with reasonable certainty, what was intended.' I have emphasized 
 the latter part of this definition because I think it an important, nay, 
 an indispensable part of it, and which, in its application to the prin- 
 cipal case, was quite overlooked in the note. If we reject the false 
 description, which is in the number of the section, and so leave that 
 a blank as the editor in fact does, leaving only a specified eighty-acre 
 
No. 602. D. INTERPRETATION OF LEGAL ACTS. 685 
 
 tract in an unspecified section in a given township, we have a de- 
 scription which applies alike to no less than 36 different lots, so far 
 as the description goes, and nothing 'remains in the will to show with 
 reasonable certainty' which of the 36 tracts was intended. . . . 
 
 "If in this case the word my had been used instead of the in con- 
 nection with, or rather in duplication of the description, then indeed 
 there would have been something in the will to construe, and by the 
 aid of parol proof the Court might ascertain what the testator meant 
 when he used it — ^then there would have been an additional descrip- 
 tion by which the Court might have determined the subject of the 
 devise, after having eliminated thirty-two. I repeat, without some 
 sort of additional description in the will, the Court had no right to 
 destroy the description, which is clear, precise, and single, and insert 
 an additional description of its own, and then go on and construe it. 
 It is impossible to say that there is a false description where there 
 is But one description which, as in this case, is plain and perfect, 
 without an additional reference or word by which the Court might be 
 enabled to determine what land was in the mind of the testator when 
 he wrote or dictated the description proposed to be eliminated from 
 the will. The central idea on which this doctrine of falsa, &c., turns 
 is, that there must be two descriptions of some sort, which facts 
 aliunde, if need be, show are inconsistent with each other, and enable 
 the Court to say satisfactorily which is the true and which is the false 
 description, when it will discard the false and give effect to the true, 
 as if the false description had never been written. . . . The legal 
 acumen for which the editor, with whom I feel compelled though re- 
 luctantly to disagree, is so justly celebrated, will, I am satisfied, upon 
 more mature reflection, convince him that he has for once, at least, 
 fallen into an error; and his well-known candor, I am sure, must 
 make him anxious, that if such be the case, it should be pointed out 
 in a courteous and proper way."^ 
 
 I — Compare the authorities cited in W., § 2477. 
 
686 BOOK 11. No. 604. 
 
 BOOK II. 
 
 BY WHOM EVIDENCE MUST BE PRESENTED. 
 
 (BURDEN OF PROOF, AND PRESUMPTIONS ).i 
 
 I. KINDS OF BURDEN AND PRESUMPTION. 
 
 ^Burden of Proof; (i) First Meaning; Risk of Non-Persua- 
 sion OF THE Jury. "Since the parties have the risk and burden of 
 producing evidence left upon themselves, how is it to be ap- 
 portioned between them? In short, which party has the 'burden 
 of proof? 
 
 "In every attempt to explain the principles of the law as to burden 
 of proof and presumption, two things at least present themselves for 
 consideration, — the general process, logical and legal, involved in de- 
 termining the parties by whom evidence is to be produced, and the 
 significance and usage of various terms employed and the incidental 
 problems of each part of the process. The difficulties of such an at- 
 tempt, almost insuperable, exist not so much from the intrinsic com- 
 plication or uncertainty of the situation as from the lamentable am- 
 biguity of phrase and confusion of terminology under which our law 
 has so long suffered. At the outset, then, it will be more satisfactory 
 to analyze the logical and legal situation considered in itself and in- 
 dependently of the various usages and terms that chiefly cause the 
 confusion. 
 
 "(i) Burden of Proof; Risk of Non-persuasion. Whenever A and 
 B are at issue upon any subject of controversy (not necessarily legal), 
 and M is to take action between them, and their desire is, hence, re- 
 spectively to persuade M as to their contention, it is clear that the 
 situation of the two, as regards its advantages and risks, will be very 
 different. Suppose that A has property in which he would like to 
 have M invest money, and that B is opposed to having M invest 
 money ; M will invest in A's property if he can learn that it is a 
 profitable object, and not otherwise. Here it is seen that the advan- 
 tage is with B, and the disadvantage with A; for unless A succeeds 
 
 I — A chief difficulty in the study of this intended to be used as studies in the 
 
 subject is to learn to detect the different different forms of judicial expression — 
 
 processes to which the terms "burden of the obscure and misleading as well as the 
 
 proof" and "presumption" are applied so precise ones; then follow (under II) il- 
 
 ambiguously in the opinions of the lustrations of specific presumptions in com- 
 
 Courts, Hence, in the materials here col- mon use. 
 
 lected, the cases placed immediately after 2 — Quoted from W.. §§ 2485, 2486. 
 
 the introductory explanations of terms are 
 
No. 604. THEORY AND DEFINITIONS. 687 
 
 in persuading M up to the point of action, A will fail and B will 
 remain victorious; the burden of proof, or, in other words, the risk 
 of non-persuasion, is upon A. This does not mean that B is abso- 
 lutely safe though he does nothing for he cannot tell how much it 
 will require to persuade M ; a very little argument from A might 
 suffice; or, if M is of a rashly speculative tendency, the mere men- 
 tion of the proposition by A might without more affect M's action ; 
 so that it may be safer in any case for B to say what he can on his 
 side of the question; and thus in fact he, as well as A, has more or 
 less risk, in the sense that there are always chances of A's persuading 
 M, no matter how trifling his evidence and argument. But neverthe- 
 less the risk is really upon A, in the sense that if M, after all said 
 and done, remains in doubt, and therefore fails to pass to the point 
 of action, it is A that loses and B that succeeds; because it is A 
 who wishes the action taken and needed as a prerequisite to accom- 
 plish the persuasion of M. The risk of non-persuasion, therefore, i. e. 
 the risk of M's non-action . because of doubt, may properly be said to 
 be upon A. This is the situation common to all cases of attempted 
 persuasion, whether in the market, the home, or the forum. So far as 
 mere logic is concerned, it is perhaps questionable whether there is 
 much importance in the doctrine of burden of proof as affecting per- 
 sons in controversy. The removal of the burden is not in itself a 
 matter of logical necessity. It is the desire to have action taken that 
 is important.' In the affairs of life there is a penalty for not sus- 
 taining the burden of proof, — i. e. not persuading M beyond the doubt- 
 ing point, — ^namely, that M will not take the desired action, to which 
 his persuasion is a prerequisite. 
 
 "Thus, in practical affairs generally, the burden of proof (in the 
 sense of risk of non-persuasion) signifies that upon a person desiring 
 action from M will fall the penalty of M's non-action unless M can 
 be persuaded beyond the doubting-point as to the truth of the proposi- 
 tions prerequisite to his action. What, then, is the difference, if any, 
 between this risk of non-persuasion in affairs at large and the same 
 risk in litigation? In litigation, the penalty is of course different; 
 the action which is desired of M is the verdict of the jury, the de- 
 cree, order, or finding of the judge, or some other appropriate action 
 of the tribunal. But so also the action differs in other affairs, accord- 
 ing as M is an investor with money to lend, or an employer with a 
 position to fill, or a friend with a favor to grant. Is there no other 
 
 3 — "In Logic, then, when we speak of no 'obligation' on any one to prove an 
 the burden of proof, we are not speak- assertion, — other than any wish he may 
 ing of some merely artificial law, with ar- feel to set an inquiring mind at rest or 
 tificial penalties attached to it. . . . No to avoid the imputation of empty boast- 
 penalty follows the misplacement of the ing. It is a natural law alone with which 
 ■burden of proof, except the natural con- we are here concerned, — the law that an 
 sequence that the assertion remains un- unsupported assertion may, for all that 
 tested, and the audience therefore (if appears, be either true or false." (Pro- 
 inquiring) unconvinced. . . . There is fessor Alfred Sidgwick, Fallacies, 163.) 
 
688 BURDEN OF PROOF, AND PRESUMPTIONS. No. 604. 
 
 and more radical difference? The radical difference in litigation, as 
 distinguished from practical affairs at large, is as to the mode of de- 
 termining the propositions of persuasion which are a prerequisite to 
 M's action. In affairs at large, these are determined solely by M's 
 notion of the proper grounds for his action, — depending thus on the 
 circumstances of the situation as judged by M. In litigation, these 
 prerequisites are determined, first and broadly, by the substantive law, 
 which fixes the groups of data that enter into legal relations and con- 
 stitute rights and duties, and, secondly more and more in detail, by the 
 laws of pleading and procedure, which further group and subdivide 
 these larger groups of data, and assign one or another sub-group to 
 this or that party as prerequisites of the tribunal's action in his favor. 
 Thus, if A were endeavoring to persuade M to assist him with money 
 because M's brother B had cruelly assaulted and beaten A, M might 
 conceivably exact of A that the latter first prove to him — i. e. persuade 
 him — not merely that B had beaten A, but further that B had not 
 done this in self-defence or by A's consent or in ejecting A from B's 
 premises or otherwise for some reason, legally justifiable or not. In 
 a legal tribunal, on the other hand, the substantive law will define 
 and limit, in the first place, the reasons to be regarded as justifiable, 
 and will thus narrow the total of facts that can in any event be in- 
 volved ; and, in the second place, the law of pleading will further 
 subdivide and apportion these facts. It will inform A that he need 
 persuade the tribunal of two facts only, namely, that A was beaten 
 and it was B who beat him; and that, upon persuading the tribunal 
 of these facts, its action will be taken in his favor, and A's risk of the 
 tribunal's non-action will thereupon cease. It will inform B that at 
 this point the risk of non-action will turn upon him, in the sense that 
 he needs the tribunal's action in order to relieve himself from the 
 consequences of its previous action, and that this action (by way of 
 reversing its provisional action in A's favor) will depend upon his 
 persuading the tribunal as to certain specified facts by way of excuse 
 or justification. Perhaps the same law of pleading may further ap- 
 portion to A a third set of facts to be the subject of a replication, in 
 case B succeeds in obtaining action in his favor on his plea. 
 
 "But the groupings defined by the substantive law and the further 
 subdivision by the 'law of pleading do not necessarily end the process 
 of apportionment by law. Even within a single pleading there are in- 
 stances in which the burden of proof (in the sense of a risk of non- 
 persuasion) may be taken from the pleader desiring action and placed 
 upon the opponent. In criminal cases, for example, though there is 
 no affirmative pleading for the defence, it is put upon the defendant, 
 in some jurisdictions, to prove the excuse of self-defence; in many 
 jurisdictions in which payment need not be affirmatively pleaded to a 
 contract-claim, the burden of proving payment is nevertheless put upon 
 the debtor; and so in many other instances. The difference of effect 
 between an apportionment under this method and an apportionment 
 
No. 604. THEORY AND DEFINITIONS. 689 
 
 by requiring a pleading is merely that, in the latter method, all ques- 
 tions of burden of proof might conceivably be disposed of before trial 
 or the entering into evidence ; while, by the other method the appor- 
 tionment is not made until the trial proper has begun. The other 
 method is less simple in the handling; but it has qome into more 
 vogue under the loose modes of pleading current in modern times in 
 many jurisdictions. 
 
 "Test for this Burden; Negative and Affirmative Allega- 
 tions; Facts peculiarly within a Party's Knowledge. The char- 
 acteristic, then, of the burden of proof (in the sense of a risk of non- 
 persuasion) in legal controversies is that the law divides the process 
 into stages and apportions definitely to each party the specific facts 
 which will in turn fall to him as the prerequisites of obtaining action 
 in his favor by the tribunal. It is this apportionment which forms 
 the important element of controversy for legal purposes. Each party 
 wishes to know of what facts he has the risk of non-persuasion. By 
 what considerations, then, is this apportionment determined? Is there 
 any single principle or rule which will solve all cases and afford a gen- 
 eral test for ascertaining the incidence of this risk? By no means. 
 It is often said that the burden is upon the party having the affirma- 
 tive allegation. But this is not an invariable test, nor even always 
 a significant circumstance; the burden is often on one who has a 
 negative assertion to prove; a common instance is that of a promisee 
 alleging non-performance of a contract. It is sometimes said that it 
 is upon the party to whose case the fact is essential. This is correct 
 enough, but it merely advances the inquiry one step; we must then 
 ask whether there is any general principle which determines to what 
 party's case a fact is essential. 
 
 "The truth is that there is not and cannot be any one general 
 solvent for all cases. It is merely a question of policy and fairness 
 based on experience in the different situations. Thus, in most actions 
 of tort there are many possible justifying circumstances, — self-defence, 
 leave and license, volenti non fit injuria, and the like; but it would 
 be both contrary to experience and unfair to assume that one of them 
 was probably present, and to require the plaintiff to disprove the ex- 
 istence of each one of them; so that the plaintiff is put to prove 
 merely the nature of his harm, and the defendant's share in causing it ; 
 and the other circumstances, which would if they existed leave him 
 -without a claim, are put upon the defendant to prove. Nevertheless, 
 in malicious prosecution, on the one hand, the facts as to the de- 
 fendant's good faith and probable cause, which might otherwise have 
 been set down for the defendant to show in excuse (as the analogous 
 facts in an action for defamation are reserved for a plea of privilege), 
 are here put upon the plaintiff, who is required to prove their non- 
 existence; because as a matter of experience and fairness this seems 
 to be the wiser apportionment. So, on the other hand, in an action 
 for defamation ('false words,' in the old nomenclature), it might have 
 
690 BURDEN OF PROOF, AND PRESUMPTIONS. No. 60J. 
 
 been supposed on other analogies that to the plaintiff it would fall to 
 prove the falsity of the defendant's utterance; yet as a matter of 
 fairness, it ha,s in fact been put upon the defendant to prove the truth 
 of his utterance. Thus, no one principle will serve in torts as a guid- 
 ing rule for the various cases. In criminal cases, the innovation, in 
 some jurisdictions, of putting upon the accused the burden of proving 
 his insanity has apparently also been based on an experience in the 
 abuses of the contrary practice. In claims based on written instru- 
 ments, experience has led in most jurisdictions to a statutory pro- 
 vision, requiring the execution by the defendant to be specially trav- 
 ersed or else taken for admitted, — a step which stops short of changing 
 the burden of proof, but well illustrates the considerations affecting its 
 incidence. The controversy whether a plaintiff in tort should be re- 
 quired to prove his own carefulness, or the defendant should be 
 required to prove the plaintiff's carelessness, has depended in part on 
 experience as to a plaintiff being commonly careful or careless, in part 
 on the fairness of putting the burden on one or the other, and this in 
 part on the consideration which of the parties has the means of proof 
 more available. 
 
 "This last consideration has often been advanced as a special test 
 for solving a limited class of cases, i. e. the burden of proving a fact 
 is said to be put on the party who presumably has peculiar knowledge 
 enabling him to prove its falsity if it is false. But this consideration 
 furnishes no working rule; if it did, then the plaintiff in an action 
 for defamation charging him to be living in adultery should be re- 
 quired to prove that he is lawfully married. This consideration, after 
 all, merely takes its place among other considerations of fairness and 
 experience as one to be kept in mind in apportioning the burden of 
 proof in a specific case. 
 
 "There is, then, no one principle, or set of harmonious principles, 
 which afford a sure and universal test for the solution of a given case. 
 The logic of the situation does not demand such a test; it would be 
 useless to attempt to discover or to invent one; and the state of the 
 law does not justify us in saying that it has accepted any. There are 
 merely specific rules for specific cases, resting for their ultimate 
 reasons upon broad and undefined reasons of experience and fairnfess." 
 
 iBuRDEN OF Proof; (2) Second Meaning; Duty of Producing 
 Evidence to the Judge. "So far as concerns the principles explained 
 above, the matter may have come before any kind of tribunal. 
 605 -j-jjg inquiry peculiarly concerns the procedure in legal con- 
 troversies; but the settlement of it is not affected by the nature of 
 the tribunal. The tribunal might be a judge, or a jury, or both, so. 
 
 I— Quoted from W., § 2487-2490. 
 
No. 605. THEORY AND DEFINITIONS. 691 
 
 far as regards apportioning the risk of non-persuasion. Nothing has 
 been said, or need be, about a distinction between judge and jury. 
 But we come now to a peculiar set of rules which have their source 
 in the bipartite constitution of the common-law tribunal. Apart from 
 the distinction of functions between judge and jury, these rules need 
 have had no existence. They owe their existence chiefly to the his- 
 toric and unquestioned control of the judge over the jury, and to the 
 partial and dependent position of the jury as a member of the tribunal 
 whose functions come into play only within certain limits. The treat- 
 ment of the situation, and the operation of the rules, can best be com- 
 prehended by keeping this consideration in mind, namely, that the 
 opportunity to decide Unally upon the evidential material that may be 
 offered does not go to the jury as a matter of course; that each party 
 must first with his evidence pass the gauntlet of the judge; and that 
 the judge, as a part of his function in administering the law, is to 
 keep the jury within the bounds of reasonable action. In short, in 
 order to get to the jury on the issue, and bring into play the burden 
 of proof (in the sense of the risk of non-persuasion of the jury), both 
 parties alike must Urst satisfy the judge that they have a quantity of 
 evidence fit to be considered by the jury, and to form a reasonable 
 basis for the verdict. This duty of satisfying the judge is peculiar in 
 its operation, because if it is not fulfilled, the party in default loses, 
 by order of the judge, and the jury is not given an opportunity to 
 debate and form conclusions as if the issue were open to them. It 
 operates somewhat as follows: 
 
 "(o) The party having the risk of non-persuasion (under the 
 pleadings or other rules) is naturally the one upon whom first falls 
 this duty of going forward with evidence; because, since he wishes to 
 have the jury act for him, and since without any legal evidence at 
 all they could properly take no action, there is no need for the op- 
 ponent to adduce evidence; and this duty thus falls first upon the 
 proponent (a term convenient for designating the party having the 
 risk of non-persuasion). This duty, however, though determined in 
 the first instance by the burden of proof in the sense of the risk of 
 non-persuasion, is a distinct one, for it is a duty towards the judge, 
 and the judge rules against the party if it is not satisfied; there is as 
 yet no opportunity to get to the jury and ask if they are persuaded. 
 The judge, then, requires that at least enough evidence be put in to 
 be worth considering by the jury. 
 
 "(b) Suppose, then, that the proponent has satisfied this duty 
 towards the judge, and that the judge has ruled that sufficient evidence 
 has been introduced. The duty has then ended. Up to that point the 
 proponent was liable to a ruling of law from the judge which would 
 put an end to his case. After passing this point he is now before the 
 jury, bearing his risk of non-persuasion. There is now no duty on 
 either party, with reference to any rule of law in the hands of the 
 judge, to produce evidence. Either party may introduce it, and doubt- 
 
692 BURDEN OF PROOF, AND PRESUMPTIONS. No. 605. 
 
 less both parties will do so; but there is nothing that requires either 
 to do so under penalty of a ruling of law against him. The pro- 
 ponent, however, still has his burden of proof in the sense of the risk 
 of non-persuasion of the jury; i. e. should the jury be in doubt after 
 hearing the evidence of the proponent, either with or without evidence 
 from the opponent, the proponent fails to obtain their verdict upon 
 that issue, and the opponent remains successful. In this second stage 
 of the trial, with the evidence before the jury, the only burden oper- 
 ating is that which concerns the jury, — ^the risk of non-persuasion; 
 and not that which concerns the judge, — ^the duty of producing evi- 
 dence. 
 
 "(c) Suppose, however, that the proponent is able to go further 
 and to adduce evidence which if believed would make it beyond reason 
 to repudiate the proponent's claim, — evidence such that the jury, acting 
 as reasonable men, must be persuaded and must render a verdict on 
 that issue for the proponent. Here the proponent has now put himself 
 in the same position that was occupied by the opponent at the opening 
 of the trial, i. e. unless the opponent now offers evidence against the 
 claim and thus changes the situation, the jury should not be allowed 
 to render a verdict against reason, — a verdict which would later have 
 to be set aside as against evidence. The matter is thus in the hands of 
 the judge again, as having the supervisory control of the proof; and 
 now he may, as applying a rule of law, require the opponent to pro- 
 duce evidence, under penalty of losing the case by direction of the 
 judge. Thus, a duty of producing evidence, under this penalty for 
 default, has now arisen for the opponent. It arises for the same 
 reasons, is measured by the same tests, and has the same consequences 
 as the duty of production which was formerly upon the proponent. 
 There are, however, two ways in which it may be invoked by the 
 judge, differing widely in terms and in appearance, but essentially the 
 same in principle, (c') In the ordinary case, this overwhelming mass 
 of evidence, bearing down for the proponent, will be made up of a 
 variety of complicated data differing in every new trial and not to be 
 tested by any set formulas. The judge's ruling will be based on a 
 survey of this mass of evidence as a whole; and it will direct the 
 jury on that issue to render a verdict on tbat mass of evidence for the 
 proponent. The propriety of this has sometimes been doubted by 
 Courts who do not believe the process to be precisely analogous to 
 that of directing a nonsuit for the proponent or of enforcing a pre- 
 sumption, as shortly to be explained; but the better authority gives 
 ample recognition to this process, (c") Another mode under which 
 this process is carried out employs the aid of a fixed rule of law, i. e. 
 a presumption, applicable to inferences from specific evidence to spe- 
 cific facts forming part of the issue, rather than to the general mass 
 of evidence bearing on the proposition in issue. If it is a part of the 
 proponent's case, for example, to prove that a person is deceased, and 
 he has offered evidence that the person has been absent, unheard from, 
 
No. 605. THEORY AND DEFINITIONS. t)93 
 
 for seven years or more, and there is no other evidence on the sub- 
 ject, then the proponent may ask that the jury be directed, if they 
 believe this fact of absence, to take as true the proposition that the 
 person is deceased; if that, moreover, were the only proposition at 
 issue, then the direction would be to find a verdict for the proponent 
 if this fact of absence were believed. The result is the same as in the 
 preceding form of the process (c'), i. e. the opponent loses as a matter 
 of law, in default of evidence to the contrary; in other words, the 
 presumption creates for the opponent a duty of producing evidence, in 
 default of which he loses as a matter of legal ruling, the matter not 
 being open for the jury, and the risk of non-persuasion, which applies 
 only to the jury's deliberations, having ceased to affect the proponent. 
 This particular form of the process, however (c"), happens to have 
 become known as a 'presumption.' The term 'presumption' has been 
 the subject of much confused usage. The particular ambiguity which 
 we need here to guard against is the confusion between the inference 
 itself — i. e. the propriety of making the inlerence from the evidence to 
 the factum probandum,^ — and the effect of the inference in the hands 
 of the judge. So far as 'presumption' means anything for the present 
 purpose, it signifies a ruling as to the duty of producing evidence. 
 
 "(d) Keeping in mind, then, that a presumption signifies a ruling 
 of law, and that to this extent the matter is in the judge's hands and 
 not the jury's, what is the effect upon the legal situation of the op- 
 ponent if he does respond to this duty and comes forward with other 
 evidence against the fact presumed? When he has thus fulfilled his 
 duty under the ruling of law, he puts himself out of the hands of the 
 judge and his ruling, and finds himself back again in the hands of the 
 jury. He is precisely where the proponent was in the first place when 
 he fulfilled the duty, then his, of producing evidence and succeeded in 
 getting from the judge to the jury. The case is now open again as to 
 that specific issue, i. e. free from any liability to a ruling of law 
 against either side, and is before the jury, where the original propo- 
 nent (as ever, when the issue is open to the jury) has the burden of 
 proof in the sense of the risk of non-persuasion of the jury. The 
 important thing is that there is now no longer in force any ruling of 
 law by the judge requiring the jury to find according to the presump- 
 tion. 'All is then turned into an ordinary question of evidence, and 
 the two or three general facts presupposed in the rule of presumption 
 take their place with the rest, and operate, with their own natural 
 force, as a part of the total mass of probative matter. . . . The main 
 point to observe is that the rule of presumption has vanished;' be- 
 cause its function was as a legal rule to settle the matter only pro- 
 
 2 — This is one of the earlier uses of sorts, viz., violent, probable, and light or 
 
 ^'presumption"; it is in effect an equiva- temerary" (Co. Litt. 6, b). This is what 
 
 lent of "inference." Such are Coke's is usually meant by "presumption of fact." 
 ^'presumptions, whereof there be three 
 
694 
 
 BURDEN OF PROOF, AND PRESUMPTIONS. 
 
 No. 605, 
 
 visionally, and to cast upon the opponent the duty of producing evi- 
 dence, and this duty and this legal rule he has satisfied.' 
 
 "(e) Are there any further stages in this possible shifting of the 
 duty of producing evidence? It is conceivable that the proponent may 
 be able to invoke other presumptions, though this is not common. But 
 may not the opponent go further than produce evidence sufficient to 
 remove the presumption? May he not only get the issue opened 
 before the jury again, but also go further and raise what may be 
 termed a counter-presumption in his favor, so that the proponent will 
 find himself in his original position at the opening of the trial, namely, 
 subject to the duty of producing sufficient evidence to go the jury, 
 under penalty, in case of default, of suffering a ruling against him by 
 the judge as a matter of law? This result is possible in principle, 
 and there are instances of it, though rare. For example, a plaintiff, 
 in an action for the burning of his property by the defendant rail- 
 way-company's negligence, created a presumption of negligence by 
 showing the setting of the fire by sparks from the defendant's loco- 
 motive; the duty of producing evidence was thus put upon the defen- 
 dant, who not only removed it by producing evidence sufficient to go 
 to the jury, but by showing the proper construction, equipment, and 
 inspection of the locomotive was held to have raised a presumption 
 that it had not been negligent and thus to be entitled to a ruling by 
 the judge against the plaintiff, taking the case from the jury.* 
 
 "The important practical distinction between these two senses of 
 'burden of proof is this : This risk of non-persuasion operates when 
 
 3 — The following passage from Profes- 
 sor Austin Abbott's article, in the Uni- 
 versity Law Review, II, 59, will serve to 
 illustrate the general situation involved in 
 this duty of producing evidence: "To use 
 a homely illustration, a civil jury trial 
 may be compared to a game of shufBe- 
 board. The first and nearest to the play- 
 ery is the field of mere scintillas; if the 
 plaintiff's evidence halts there, he is lost. 
 The next, or middle, field is that of 
 balancing probabilities: if his evidence 
 reaches and rests there, he gets to the 
 jury; but they alone can decide the cause, 
 and they may decide it either way or 
 disagree. The third and last field is that 
 of legal conclusion: if his evidence can be 
 pushed into that division, he is entitled 
 to his victory at the hands of the judge, 
 and the jury cannot draw it into doubt; 
 but before the judge can do so, the de- 
 fendant has a right to give evidence, and 
 that evidence may bring the plaintiff's 
 evidence back into doubt again, and leave 
 the case in the field of balancing probabil- 
 ities." 
 
 4 — "The various possible stages in the 
 foregoing process may be illustrated by 
 
 a diagram; the particular usefulness of 
 the graphic method being that- it shows in 
 small compass the relation of the stages 
 aaid the vital distinction between the 
 judge's and the jury's situation for the 
 two kinds of burdens: 
 
 JUDQB. 
 
 JUEY. 
 
 JUDGI. 
 
 Froponeot: 
 DF K 
 
 '/\ 
 
 P T 
 
 "c ^' 
 
 K* 
 
 
 Opponent 
 
 Let A =■ the starting-point of the pro- 
 ponent having the risk of non-persuasion 
 on a given issue; 
 
 A' = the starting-point of the oppon- 
 ent on the issue; 
 
 Z = the point of complete persuasion 
 or proof for the proponent; 
 
 Z' =■ the corresponding point for the 
 opponent. The proponent then finds, as 
 
No. 605. 
 
 THEORY AND DEFINITIONS. 
 
 695 
 
 the case has come into the hands of the jury, while the duty of pro- 
 ducing evidence implies a liability to a ruling by the judge disposing 
 of the issue without leaving the question open to the jury's delibera- 
 tions. 
 
 "Tests for ascertaining this Burden. The term 'burden of proof 
 is used commonly as applying equally to the two preceding kinds of 
 situations, and often is applied in both senses in the same judicial 
 
696 BURDEN OF PROOF, AND PRESUMPTIONS. IvO. 605. 
 
 the stage of a single pleading, may further apportion the burden; but 
 this apportionment depends ultimately on broad considerations of 
 policy, and, for individual instances, there is nothing to do but ascer- 
 tain the rule, if any, that has been judicially determined for that par- 
 ticular class of cases, (b) For the other burden (the duty of going 
 forward with evidence to satisfy the judge) there is always, at the 
 outset, such a duty for the party having the first burden, or risk of 
 non-persuasion, until by some rule of law (either by a specific ruling 
 of the judge upon the particular evidence, or by the aid of an appro- 
 priate presumption, or by matter judicially noticed) this line is 
 passed. Then comes the stage in which there is no such duty of law 
 for either party (although, if the proponent has invoked some pre- 
 sumption, this stage is immediately passed over). Then, either by 
 a ruling on the general mass of evidence, or by the aid of some appli- 
 cable presumption, the duty of law arises anew for the opponent. 
 Finally, it may supposably, by similar modes, be later re-created for the 
 proponent. There is therefore no one test, of any real significance, for 
 determining the incidence of this duty; at the outset the test is fur- 
 nished by ascertaining who has the burden of proof, in the sense of 
 the risk of non-persuasion of the jury, under the pleadings or other 
 rules declaring what facta probanda are the ultimate facts of each 
 party's case; a little later, the test is whether the proponent has by a 
 ruling of the judge (based on the sufficiency of the evidence, or a pre- 
 sumption, or a fact judicially noticed^ fulfilled this duty; later on, it 
 will be whether the proponent, by a ruling of the judge upon a pre- 
 sumption or the evidence as a whole, has created a duty for the pro- 
 ponent; and still later, whether, for the purposes of the judge's ruling, 
 the proponent has satisfied this duty. It has been suggested that 'the 
 test ought in strict accuracy to be expressed thus, namely : which party 
 would be successful if no evidence at all, or no more evidence (as the 
 case may be), were given? But it is obvious that this is not a test, in 
 any sense of being a useful mode for ascertaining the unknown from 
 the known ; it is simply defining and re-stating in other words the effect 
 of this duty of producing evidence; it says 'the burden of proof, in 
 this sense, means that the party liable to it will lose as a matter of 
 judicial ruling if no evidence or no more evidence is given by him' ; 
 and this does not solve the main problem of determining in a given 
 case which is the party thus liable to these consequences. 
 
 "Shifting the Burden of Proof. (a) The first burden above 
 described — the risk of non-persuasion of the jury — never shifts, since 
 no fixed rule of law can be said to shift. The law of pleading, or, 
 within the stage of a given pleading, some further rule of practice, 
 fixes beforehand the issuable facts respectively apportioned to the 
 case of each party; each party may know beforehand, from these rules, 
 what facts will be a part of his case, so far as concerns the ultimate 
 risk of non-persuasion. He will know from these rules that such 
 facts, whenever the time comes, will be his to prove, and not the 
 
. No. 606. THEORY AND DEFINITIONS. 697 
 
 other's, or possibly liis and possibly the other's. The other party and 
 himself will of course have their turns in proving their respective 
 facta probanda (though under a strict system of pleading these turns 
 of proof will be more clearly fixed before trial, and may occur at 
 different stages and not the same stage of the cause) ; and the putting- 
 in of evidence may therefore 'shift' in the sense that each will take 
 his turn in proving the respective propositions apportioned to him. 
 But the burden does not 'shift' in any real sense; for each may once 
 for all ascertain beforehand from rules of law the facta probanda 
 apportioned to him, and this apportionment will always remain as 
 thus fixed, to whatever stage the cause may progress. 
 
 "(6) The second kind of burden, however — the duty of producing 
 evidence to satisfy the judge, — does have this characteristic referred 
 to as a 'shifting.' It is the same kind of a duty for both parties, but 
 it may rest (within the same stage of pleading and upon the same 
 issue and during one burden of the first sort) at one time upon one 
 party and at another time upon the other. Moreover, neither party 
 can ascertain absolutely beforehand at what time it will come upon 
 him or cease to be upon him or by what evidence it will be removed 
 or created, — except so far as a presumption has by a rule of law been 
 laid down as determining the effect attached to certain facts. More- 
 over, in a distinctive sense, this kind of burden 'shifts' and the other 
 does not, in that during the unchanged prevalence of the first kind 
 of burden for one party, the second kind may be shared in turn by one 
 and the other, though the first — the risk of non-persuasion of the 
 jury, should the case be left in their hands — has not come to an end. 
 
 "Legal Effect of a Presumption. The whole situation is compli- 
 cated, quite apart from any ambiguity of terms, by the operation of 
 presumptions upon specific fragments of the issue under a single plead- 
 ing, in combination with the established practice of leaving to the 
 jury for a general verdict the whole of the issues under a pleading. 
 For example, suppose that the whole of the plaintiff's case and the 
 whole proposition as to which he has the burden of proof in the first 
 sense and the whole of the issue under the pleadings is that A is dead 
 without heirs; suppose that the plaintiff has offered testimony that A 
 has been for seven years absent from home and unheard from, and 
 that there is also testimony in contra3iction of these facts from the 
 defendant and also testimony from both sides as to the existence of 
 heirs. Here it is obvious that the case is not in the hands of the 
 judge to order a verdict for the plaintiff, first, because the death of the 
 plaintiff, assuming the presumption from absence to determine this, 
 is not the only proposition essential to the plaintiff's case, and, 
 secondly, because he cannot pass upon the truth of the plaintiff's con- 
 tradicted testimony as to absence and therefore it cannot then be 
 known whether the fact exists on which the presumption operates ; 
 and thus the case is still in appearance in the hands of the jury. 
 Nevertheless, the matter is still in the hands of the judge (in theory 
 
698 BURDEN OF PROOF, AND PRESUMPTIONS. NO. 605. 
 
 of law, at least) as much as it ever was; that is to say, the pre- 
 sumption or rule of law still operates that the fact of absence for 
 seven years unheard from is to be taken, by a rule of law independent 
 of the jury's belief, as equivalent to death, in the absence of any 
 explanatory facts to the contrary from the defendant. This rule of 
 law is still applied, notwithstanding the additional elements in the 
 case; for the judge will instruct the jury that if they find the fact 
 of absence for seven years unheard from, and find no explanatory facts 
 to account for it, then by a rule of law they are to take for true the 
 fact of death and are to reckon upon it accordingly in making up 
 their verdict upon the whole issue. The situation here is even 
 simpler than it is in perhaps the majority of issues in litigation; so 
 that the theoretical tends to be lost sight of, in that the issue does go 
 to the jury and the ca^e of the opponent of the presumption is appar- 
 ently not brought to an end by a ruling of the judge. Nevertheless, 
 in theory this legal effect is merely postponed, and will have due place 
 if the jury understands the instructions and does its duty." 
 
No. 606. BOOK II. 699 
 
 TITLE I. 
 
 GENERAL PRINCIPLES FOR THE TWO KINDS 
 OF BURDEN OF PROOF. 
 
 BARRY V. BUTLIN (1838). 
 2 Moore P. C. 480. 
 
 Pendock Barry, of Tollerton Hall, in the County of Nottingham, 
 the testator respecting the validity of whose will the present appeal 
 arose, died on the 13th of March, 1B33, at the age of seventy- 
 six years, a widower, leaving behind him the appellant, his son 
 and heir, and only next of kin. On the 24th of September, 1827, the 
 deceased executed his will in duplicate, at the house of Percy, his 
 attorney, in the presence of two witnesses, whereby he appointed the 
 respondent, James Butlin, sole executor and residuary legatee, and 
 amongst other legacies bequeathed to Percy £3,000, to Butlin £2,000, 
 and to Whitehead, his butler, £3,000. The validity of this will was 
 disputed by the appellant, on the ground that the execution was pro- 
 cured by the fraud and conspiracy of Percy, Butlin, and Whitehead, 
 at a time when the deceased was of unsound mind, and wholly in- 
 capable of making or executing a will, or of doing any act requiring 
 thought, judgment, and reflection. The respondent propounded the 
 above will for probate in the Prerogative Court of Canterbury, and an 
 appeal was taken from the decree in its favor. 
 
 Parke, B. : "The rules of law according to which cases of this 
 nature are to be decided, do not admit of any dispute, so far as they 
 are necessary to the determination of the present appeal: and they 
 have been acquiesced in on both sides. These rules are two; the 
 first, that the onus probandi lies in every case upon the party pro- 
 pounding a will; and he must satisfy the conscience of the court that 
 the instrument so propounded is the last will of a free and capable 
 testator. The second is, that if a party writes or prepares a will, 
 under which he takes a benefit, that is a circumstance that ought gen- 
 erally to excite the suspicion of the court, and calls upon it to be 
 vigilant and jealous in examining the evidence in support of the in- 
 strument, in favor of which it ought not to pronounce unless the sus- 
 picion is removed, and it is judicially satisfied that the paper pro- 
 pounded does express the true will of the deceased. . . 
 
 "If [in the authority cited by the appellant] it is intended to be 
 stated as a rule of law, that in every case in which the party pre- 
 paring a will derives a benefit under it, the onus probandi is shifted, 
 and that not only a certain measure but a particular species of proof 
 
700 BURDEN OF PROOF, AND PRESUMPTIONS. No. 606. 
 
 is thereupon required from the party propounding the will,— we feel 
 bound to say that we assume the doctrine to be incorrect. The strict 
 meaning of the term onus probandi is this, that if no evidence is given 
 by the party on whom the burden is cast, the issue must be found 
 against him. In all cases the onus is imposed on the party propound- 
 ing the will; it is in general discharged by proof of capacity and the 
 fact of execution, from which the knowledge of and assent to the 
 contents of the instrument are assumed, and it cannot be that the 
 simple fact of the party who prepared the will being himself a legatee, 
 is in every case, and under all circumstances, to create a contrary 
 presumption, and to call upon the court to pronounce against the will, 
 unless additional evidence is produced to prove the knowledge of its 
 contents by the deceased. A single instance, of not unfrequent occur- 
 rence, will test the truth of this proposition. A man of acknowledged 
 competence and habits of business, worth f 100,000, leaves the bulk of 
 his property to his family, and a legacy of £50 to his confidential at- 
 torney, who prepared the will: would this fact throw the burden of 
 proof of actual cognizance by the testator, of the contents of the will, 
 on the party propounding it, so that if such proof were not supplied, 
 the will would be pronounced against? The answer is obvious, it 
 would not. All that can be truly said is, that if a person, whether 
 attorney or not, prepares a will with a legacy to himself, it is, at 
 most, a suspicious circumstance, of more or less weight, according to 
 the facts of each particular case; in some of no weight at all, as in 
 the case suggested, varying according to circumstances. . . . We think, 
 therefore, on the whole, that the evidence of the factum, coupled with 
 the strong probabilities of the case, is [in this case] sufficient to re- 
 move the suspicions which naturally belong to the case of all wills 
 prepared by persons in their own favor, especially when made by 
 those of weak capacity.'' 
 
 HINGESTON v. KELLY (1849). 
 18 L. J. Exch. 360. 
 
 Action for work and labor, tried before Denman, L. C. J. The 
 plaintiff was an attorney, and with the assent of the defendant acted 
 for the defendant as an election agent in a contest for the bor- 
 ""' ough of Lyme Regis, which the defendant was a candidate to 
 represent in parliament. It also appeared from the evidence of the 
 plaintiff's witnesses, that the plaintiff had voted for the defendant at 
 the election, although a paid agent is not permitted by law to vote. 
 The defendant produced evidence to show that it was agreed that the 
 plaintiff's services were to be given gratuitously. His Lordship in 
 summing up told the jury, that the plaintiff, having proved the 
 services rendered, was prima facie entitled to be paid, and that they 
 should find for the plaintiff, unless the defendant had distinctly proved 
 to their satisfaction that the contract was that the services were to 
 
No. 608. I. GENERAL PRINCIPLES. 701 
 
 be gratuitous, in which case they ought to find for the defendant. The 
 jury found for the plaintiff. 
 
 Parke, B. : "The great difficulty in my mind is whether, looking 
 to Lord Denman's summing up, the jury understood that the burthen 
 of proof still lay on the plaintiff. The burthen of proof was never 
 altered. The plaintiff being a professional man, and performing pro- 
 fessional services, was prima facie entitled to remuneration. His 
 voting, indeed, was an act which amounted to a statement by himself 
 that he was not to be paid. Still, if the case had rested there, the jury, 
 notwithstanding the voting, might have believed that the contract was 
 that the plaintiff was to be paid. Then came the evidence for the de- 
 fendant to show that the agreement was that the plaintiff should not 
 be paid. After this was given, the question for the jury still remained, 
 whether on the whole evidence the plaintiff had made out his title to 
 remuneration. I think, if I had been a juryman, that on the facts of 
 this case I should have found my verdict against the party, whether 
 the plaintiff or the defendant, on whom I was told by the judge that 
 the burthen of proof lay." 
 
 ABRATH V. NORTH EASTERN R. CO. (1883). 
 L. R. II Q. B. D. 440. 
 
 Malicious prosecution. On the loth of September, 1880, a col- 
 lision occurred at Ferry Hill station, on the defendant's railway, and 
 one M. McMann alleged that he had thereby sustained injuries. 
 ®®^ McMann was attended by the plaintiff, G. A. Abrath, a doctor 
 of medicine and surgery, and McMann brought an action against the 
 defendants to recover damages. The action by McMann stood for 
 trial at the Northumberland Summer Assizes, 188 1, but it was settled 
 by the defendants paying to the plaintiff McMann, 725/. damages, and 
 330/. costs. Afterwards, upon information given to the railway com- 
 pany, counsel advised that there was a good case for prosecuting a 
 charge of conspiracy against McMann and Dr. Abrath, his medical 
 adviser. Two eminent medical men were of opinion that the case 
 of the alleged injuries to McMann was an imposture. Thereupon the 
 defendants caused an information to be laid before justices, against 
 the plaintiff. Dr. Abrath, on a charge of conspiracy to cheat and de- 
 fraud the defendants. He was committed for trial and was tried in 
 January, 1882, and acquitted, the foreman of the jury adding that it 
 was the unanimous wish of the jury that he should leave the Court 
 without a stain upon his character. He thereupon commenced the 
 present action. 
 
 Cave, J., in summing up to the jury, told them that it was for the 
 plaintiff to establish a want of reasonable and probable cause and 
 malice, and then proceeded as follows: "With regard to this ques- 
 tion, you must bear in mind that it lies on the plaintiff to prove that 
 
702 BURDEN OF PROOF, AND PRESUMPTIONS. No. 608. 
 
 the railway company did not take reasonable care to inform them- 
 selves. The meaning of that is, if you are not satisfied whether they 
 did or not, inasmuch as the plaintiff is bound to satisfy you that they 
 did not, the railway company would be entitled to your verdict on 
 that point.'' A new trial was granted, by the Queen's Bench Division, 
 on the ground that the general rule should be followed, which was 
 that the onus rested on the person affirming; and that there had been 
 a misdirection by Cave, J., in telling the jury that the onus lay upon 
 the plaintiff to prove that the defendants had not taken reasonable 
 care to inform themselves of the true state of the case, and had not 
 honestly believed the case which they laid before the magistrate. From 
 this order a further appeal was taken by the defendant, and allowed; 
 the original ruling of Cave, J., being affirmed. 
 
 BowEN, L. J. : "This action is for malicious prosecution, and in 
 an action for malicious prosecution the plaintiff has to prove, first, 
 that he was innocent and that his innocence was pronounced by the 
 tribunal before which the accusation was made; secondly, that there 
 was a want of reasonable and probable cause for the prosecution, or, 
 as it may be otherwise stated, that the circumstances of the case were 
 such as to be in the eyes of the judge inconsistent with the existence 
 of reasonable and probable cause; and, lastly, that the proceedings of 
 which he complains were initiated in a malicious spirit, that it, from 
 an indirect and improper motive, an J not in furtherance of justice. 
 All those three propositions the plaintiff has to make out, and if any 
 step is necessary to make out any one of those three propositions, the 
 burden of making good that step rests upon the plaintiff. I think that 
 the whole of the fallacy of the argument addressed to us, lies in a 
 misconception of what the learned judge really did say at the trial, 
 and in a misconception of the sense in which the term 'burden of 
 proof was used by him. Whenever litigation exists, somebody must 
 go on with it; the plaintiff is the first to begin; if he does nothing, 
 he fails; if he makes a prima facie case, and nothing is done to 
 answer it, the defendant fails. The test, therefore, as to the burden 
 of proof or onus of proof, whichever term is used, is simply this: to 
 ask oneself which party will be successful if no evidence is given, or 
 if no more evidence is given than has been given at a particular point 
 of the case, for it is obvious that as the controversy involved in the 
 litigation travels on, the parties from moment to moment may reach 
 points at which the onus of proof shifts, and at which the tribunal will 
 have to say that if the case stops there, it must be decided in a particular 
 manner. The test being such as I have stated, it is not a burden that 
 goes on for ever resting on the shoulders of the person upon whom it 
 is first cast. As soon as he brings evidence which, until it is an- 
 swered, rebuts the evidence against which he is contending, then the 
 balance descends on the other side, and the burden rolls over until 
 again there is evidence which once more turns the scale. That being 
 so, the question of onus of proof is only a rule for deciding on whom 
 
JNO. 609. I. GENERAL PRINCIPLES. 703 
 
 the obligation of going further, if he wishes to win, rests. It is not 
 a rule to enable the jury to decide on the value of conflicting evidence. 
 So soon as a conflict of evidence arises, it ceases to be a question of 
 onus of proof. 
 
 "There is another point which must be cleared in order to make 
 plain what I am about to say. As causes are tried, the term 'onus 
 of proof may be used in more ways than one. Sometimes when a 
 cause is tried the jury is left to find generally for either the plaintiff 
 or the defendant, and it is in such a case essential that the judge 
 should tell the jury on whom the burden of making out the case rests, 
 and when and at what period it shifts. Issues again may be left to 
 the jury upon which they are to find generally for the plaintiff or the 
 defendant, and they ought to be told on whom the burden of proof 
 rests; and indeed it is to be observed that very often the burden of 
 proof will be shifted within the scope of a particular issue by pre- 
 sumptions of law which have to be explained to the jury. . . . Now in 
 an action for malicious prosecution the plaintiff has the burden 
 throughout of establishing that the circumstances of the prosecution 
 were such that a judge can see no reasonable or probable cause for 
 instituting it. In one sense that is the assertion of a negative, and we 
 have been pressed with the proposition that when a negative is to be 
 made out the onus of proof shifts. That is not so. If the assertion 
 of a negative is an essential part of the plaintiff's case, the proof of 
 the assertion still rests upon the plaintiff. The terms 'negative' and 
 'affirmative' are after all relative and not absolute. In dealing with a 
 question of negligence, that term may be considered either as negative 
 or affirmative according to the definition adopted in measuring the 
 duty which is neglected. Wherever a person asserts affirmatively as 
 part of his case that a certain state of facts is present or is absent, 
 or that a particular thing is insufficient for a particular purpose, that 
 is an averment which he is bound to prove positively. It has been 
 said that an exception exists in those cases where the facts lie pecu- 
 liarly within the knowledge of the opposite party. The counsel for 
 the plaintiff have not gone the length of contending that in all those 
 cases the onus shifts, and that the person within whose knowledge the 
 truth peculiarly lies is bound to prove or disprove the matter in dis- 
 pute. I think a proposition of that kind cannot be maintained." 
 
 POWERS V. RUSSELL (1832). 
 13 Pick. 6p. 
 
 Bill to redeem a mortgage. 
 
 Shaw, C. J. : "It is conceded that in 1822, Nathan J'owers, the 
 
 brother of the plaintiff, having received a conveyance of the 
 
 " same estate from Peter Russell the defendant, who was then 
 
 his wife's father, on the same day duly executed and delivered to the 
 
704 BURDEN OF PROOF, AND PRESUMPTIONS. No. 609. 
 
 defendant a mortgage deed, conditioned to perform a bond then en- 
 tered into, to support and maintain the defendant in the manner 
 therein more particularly specified, during his life. The claim of the 
 plaintiff is, that the same Nathan Powers, who has since deceased, 
 immediately after making the deed above mentioned, executed another 
 mortgage deed to the plaintiff, in virtue of which he claims a right 
 to redeem. The execution and delivery of this last mortgage are de- 
 nied by the defendant, and the points raised and considered have 
 turned wholly upon this question. It is very clear, that to enable the 
 plaintiff to maintain his bill to redeem, he must prove affirmatively, 
 that he stands in the character of a grantee of the premises from the 
 original mortgagor, and that in regard to this point the burden of 
 proof is upon the plaintiff. . . . 
 
 "It may be useful to say a word upon the subject of the burden of 
 proof. It was stated here, that the plaintiff had made out a prima 
 facie case, and, therefore, the burden of proof was shifted and placed 
 upon the defendant. In a certain sense this is true. Where the party 
 having the burden of proof establishes a prima facie case, and no 
 proof to the contrary is offered, he will prevail. Therefore the other 
 party, if he would avoid the effect of such prima facie case, must pro- 
 duce evidence, of equal or greater weight, to balance and control it, or 
 he will fail. Still the proof upon both sides applies to the affirmative 
 or negative of one and the same issue, or proposition of fact; and the 
 party whose case requires the proof of that fact, has all along the 
 burden of proof. It does not shift, though the weight in either scale 
 may at times preponderate. But where the party having the burden 
 of proof gives competent and prima facie evidence of a fact, and the 
 adverse party, instead of producing proof which would go to negative 
 the same proposition of fact, purposes to show another and a distinct 
 proposition which avoids the effect of it, there the burden of proof 
 shifts, and rests upon the party proposing to show the latter fact. 
 
 "To illustrate this ; — prima facie evidence is given of the execu- 
 tion and delivery of a deed; contrary evidence is given on the other 
 side, tending to negative such fact of delivery ; this latter is met by 
 other evidence, and so on through a long inquiry. The burden of 
 proof has not shifted, though the weight of evidence may have shifted 
 frequently; but it rests on the party who originally took it. But if 
 the adverse party offers proof, not directly to negative the fact of 
 delivery, but to show that the deed was delivered as an escrow, this 
 admits the truth of the former proposition, and proposes to obviate 
 the effect of it, by showing another fact, namely, that it was delivered 
 as an escrow. Here the burden of proof is on the latter. 
 
 "Applying these rules to the present case, it is manifest that the 
 burden of proof was upon the plaintiff through the whole inquiry. 
 The question was, whether the instrument was ever delivered by 
 Nathan Powers to Chester Powers as his deed. This question is to 
 be examined, as if the original deed had been first produced." 
 
No. 611. I. GENERAL PRINCIPLES. 705 
 
 CARVER V. CARVER (1884). 
 610 97 Ind. 497, 510. 
 
 [The facts and the opinion on the present point are included in 
 the quotation post, No. 647.] 
 
 REX V. ALMON (1771). 
 5 Burr. 2868. 
 
 Criminal libel. To charge the defendant as the publisher, evidence 
 was offered of a purchase of the libel, imprinted with the defendant's 
 name and bought in his shop. Mansfield, L. C. J.: "This 
 "■'■■'■ being prima facie evidence of a publication by the master him- 
 self, it stands good till answered by him; and if not answered at all, 
 it thereby becomes conclusive so far as to be sufficient to convict him. 
 . . . [It] must stand till contradicted or explained or exculpated by 
 some other evidence, and if not contradicted, explained or exculpated, 
 would be in point of evidence sufficient or tantamount to conclusive. 
 ... If it be sufficient in point of law, and the juryman believes it 
 [i. e. the fact of purchase], he is bound in conscience to give his ver- 
 dict according to it." Mr. Justice Aston "laid down the same maxim 
 as being fully and clearly established, 'that prima facie evidence (if 
 believed) is binding till contrary evidence be produced'."^ 
 
 I — Compare the following: the case, reading the documents and the 
 
 R. V. O'Doherty, 6 State Tr. u. s. 831, evidence." 
 873 (1848): Pennefather B., charging Walker, J., in Cogdell v. R. Co., 132 
 
 the jury, in a prosecution for publishing N. C. 852, 44 S. E. 618 (1903) : "The 
 
 an article with seditious intent: "The Court was requested to charge that there 
 
 publishing them is certainly prima facie was a presumption that the deceased had 
 
 evidence against him, as being the regis- exercised care, which the Court refused 
 
 tered proprietor [of the newspaper]" A to give, but charged the jury that there 
 
 juror: "There is diiference of opinion was an inference that due care was exer- 
 
 among the jurors; some hold that, from cised. The presumption has a technical 
 
 your lordship stating there being prima force or weight, and the jury, in the 
 
 facie evidence of the prisoner*s guilt, we absence of sufficient proof to overcome it, 
 
 should at once go to find him guilty; should find according to the presump- 
 
 others receiving the phase thus, that your tion; but, in case of a mere inference, 
 
 lordship did not mean to convey that it there is no technical force attached to 
 
 was sufficient [to require that finding]" it. The jury, in the case of an infer- 
 
 Pennefather, B. : "I did not mean, gen- ence, are at liberty to find the ultimate 
 
 tlemen, to direct you or tell you that in tact one way or the other as they may be 
 
 point of law, because he was the pub- impressed by the testimony. In the one 
 
 lisher and proprietor of the paper, he case the law draws a conclusion from the 
 
 therefore necessarily knew the contents. state of the pleadings and evidence, and 
 
 I did not mean to convey that. But I told in the other case the jury draw it. An 
 
 you that it was evidence that he did inference is nothing more than a permis- 
 
 Icnow the contents, and that you were to sible deduction from the evidence, while a 
 
 form your judgment upon the whole of presumption is compulsory and cannot be 
 
 disregarded by the jury." 
 
706 BURDEN OF PROOF, AND PRESUMPTIONS. No. 612. 
 
 ALABAMA GREAT SOUTHERN R. CO. v. TAYLOR (1901). 
 129 Ala. 2^8, 29 So. d/j. 
 
 Action by Mary E. Taylor against the Alabama Great Southern 
 Railroad Company. Judgment for plaintiff. Defendant appeals. Re- 
 versed. The complainant contained two counts: the first read: 
 "The plaintiff claims of the defendant seventy-five dollars dam- 
 ages, which damages were caused by fire from the engine operated by 
 defendant, whereby said sum of seventy-five dollars damages were 
 caused by said defendant to said plaintiff by reason of said fire, 
 whereby said plaintiff's corncrib or building was wholly destroyed, — 
 all caused by the negligence of defendant, — and by reason of said fire 
 said plaintiff was damaged to the amount of said sum of seventy-five 
 dollars; wherefore plaintiff brings this action." The defendant in- 
 troduced as witnesses the engineer and fireman who were on the 
 engine that was drawing the passenger train which passed the plain- 
 tiff's corncrib on the morning in question, and the master mechanic 
 on the defendant's road, and the inspector of engines at the de- 
 fendant's shops in Birmingham. All of these witnesses testified that 
 the engine was equipped with the latest approved and improved spark 
 arresters, devices, and appliances to prevent the escape of sparks from 
 the said engine; that they had examined the engine in question the 
 day the plaintiff's corncrib was burned, and they found the engine in 
 perfect condition in every respect; that it was better equipped, so far 
 as proper devices and appliances for preventing the escape of sparks 
 was concerned, than engines were generally upon well-regulated roads. 
 The defendant excepted to the Court's giving, at the request of the 
 plaintiff, the following written charge: (i) "If the jury believe from 
 the evidence that the corncrib described in the complaint was de- 
 stroyed by fire emitted from a locomotive of the defendant, then the 
 jury must find for the plaintiff, unless they believe from the evidence 
 that the plaintiff, after discovering the fire, by due diligence could 
 have put out the fire and saved the property from destruction." The 
 defendant requested the Court to give to the jury the following written 
 charges, and separately excepted to the Court's refusal to give each of 
 them as asked: ... (10) "I charge you, gentlemen of the jury, that 
 if you believe from the evidence in this case that the engine in ques- 
 tion at the time of the accident was supplied with the most approved 
 appliances and devices for the prevention of fires, in use by well- 
 regulated railroad companies in this country, and that such appliances 
 were well managed and handled by the servants in charge thereof at 
 the time, and that there was no negligence upon the part of the de- 
 fendant by which said fire was communicated to the building in con- 
 test here, at or near the said building, then it is your duty to find for 
 the defendant.'' 
 
 Sharpe, J. : "... Apparently, in giving and refusing instructions to 
 
No. 613. I. GENERAL PRINCIPLES. 707 
 
 the jury, the trial Court proceeded on the theory that the fact, if 
 established, that defendant's engine communicated fire to the plaintiff's 
 building was sufficient to fix upon the defendant the charge of negli- 
 gence conclusively. Such a conception is, in view of the evidence, at 
 variance with principles declared by this Court. In actions of this 
 kind the communication of fire to the property of another by an engine 
 of a defendant railroad company is, when nothing appears to the con- 
 trary, presumed to have been the result of negligence on the part of 
 the defendant. The presumption so arising is not a conclusive one, 
 so as to preclude the defendant to rebut it; nor does it take the place 
 of actual evidence of negligence further than to cast upon the de- 
 fendant the burden of showing by evidence that at the time of the 
 occurrence it was in the exercise of ordinary care in respect to the 
 construction, equipment, and management of the engine. When, by 
 proof, it has so repelled the presumption, the burden shifts to the 
 plaintiff, who must go forward anew with actual evidence to disprove 
 that of the defendant, either directly or inferentially, by showing that 
 a carefully constructed, equipped and managed engine would not have 
 set fire to the property. When there is no evidence of negligence 
 other than that supplied by the presumption referred to, and the pre- 
 sumption has been, to its full extent, repelled by undiscredited evi- 
 dence, the jury should find for the defendant, if they believe the 
 evidence, and the Court should so charge, if requested in writing to 
 do so. . . . These considerations force the conclusion that there was 
 error in giving the charge requested by the plaintiff, and also in the 
 refusal to give charge lo requested by the defendant." 
 
 MENOMONIE RIVER SASH & DOOR CO. v. MILWAUKEE & 
 
 NORTHERN R. CO. (1895). 
 
 pi Wis. 447, 65 N. W. 176. 
 
 This action was brought to recover damages against the defendant 
 
 for the negligent destruction by fire from one of its locomotives at 
 
 Marinette, Wis., on the 30th of September, 1891, of the lumber 
 
 of the Menomonie River Sash & Door Company, in its lumber 
 
 yard adjoining the track of the defendant at that place, of the value of 
 
 about $7,000. . . . The jury found a special verdict, in substance: . . . 
 
 (4) The fire in question was set by the defendant's switch engine. 
 
 (5) Said engine was properly constructed and equipped, to prevent the 
 escape of sparks and cinders. (6) Said engine was not in good con- 
 dition when it passed the place where the fire started. (7) As to 
 whether said engine was properly managed when it passed the place 
 where the fire started, the answer was, "Don't know." (8) To the 
 eighth question, "Was there any want of ordinary care on the part 
 of the defendant which caused the fire which burned the lumber?" the 
 
708 BURDEN OF PROOF, AND PRESUMPTIONS. No. 613. 
 
 jury answered in the affirmative; (9) and to the ninth question, in 
 substance, in what such want of care consisted, the jury answered, "Care- 
 less inspection of netting in engine No. 2." . . . The plaintiffs moved 
 for judgment on the verdict, and the defendant moved on the judge's 
 minutes, pleadings, etc., among other things, to set aside the sixth, 
 eighth, and ninth answers and findings 6i the verdict, as against the 
 undisputed evidence in the case, and for judgment on the special ver- 
 dict thus corrected and the undisputed evidence, on the ground that 
 such evidence showed that the defendant was entitled to judgment. 
 The Court denied the plaintiffs' motion and entered an order setting 
 aside the answers or findings in the special verdict to the sixth, sev- 
 enth, eighth, and ninth questions, as being contrary to the uncontra- 
 dicted evidence in the case, and that the defendant have judgment 
 upon the uncontradicted evidence, dismissing the plaintiffs' complaint. 
 Judgment was entered in favor of the defendant, pursuant to this 
 order, from which the plaintiffs appealed. . . . 
 
 PiNNEY, J.: "The evidence produced on the part of the plaintiff 
 was sufficient; to go to the jury, to show that the fire in question was 
 set by the defendant's switch engine, presumably by sparks or cinders 
 thrown and escaping from it; but it does not follow from this fact 
 that the defendant is liable for the consequences that ensued. In order 
 to charge it with the loss of the plaintiffs' lumber the fire must have 
 been caused by the defendant's negligence. It is a well-understood 
 fact — so much so that Courts may properly tajce notice of it as a mat- 
 ter of common knowledge — ^that no means or device that human in- 
 genuity has as yet been able to produce will wholly prevent the 
 emission or throwing of sparks or cinders from railway locomotives. 
 . . . The presumption, therefore, of negligence, or the want of proper 
 equipment, arising from the mere fact of fire having escaped, is not 
 conclusive, nor, indeed, a very strong one, but, of the two, rather 
 weak and unsatisfactory. It is indulged in merely for the purpose of 
 putting the company to proof, and compelling it to explain and show, 
 with a reasonable and fair degree of certainty, not by the highest 
 and most clear and unmistakable kind of evidence, that it had per- 
 formed its duty in this particular. Hence evidence showing that the 
 engines passing over a road were properly constructed and equipped, 
 and were subjected to the vigilant and careful inspection of a com- 
 petent and skillful person as often as once in two days, and found 
 to be in proper order, would seem to satisfy the requirements of the 
 rule. The effect of such proof, with proof of proper management, 
 is to overcome any inference of negligence on the part of the de- 
 fendant arising from the mere fact that sparks and cinders did escape 
 and communicate fire, to the plaintiffs' injury. In the present case 
 the precise manner in which the fire occurred was not observed by 
 any one, but is wholly a matter of inference; and it is important to 
 note that the case differs, in this respect, materially from the case of 
 Kurz & Huttenlocher Ice Co. v. Milwaukee & N. R. Co., 84 Wis. 
 
No. 614. I. GENERAL PRINCIPLES. 709 
 
 171, 53 N. W. 850, and Stacy v. Railway Co., 85 Wis. 225, 54 N. W. 
 779, where the evidence indicated that the fire in question was caused, 
 not by spaiks or cinders thrown from the engine, but from coal 
 and cinders dropped on the track under circumstances tending to show 
 that the engine was not properly constructed and in good condition, 
 or negligence in the management of it, and thus furnishing affirmative 
 proof of negligence which would require the submission of the case 
 to the jury, to determine whether the evidence introduced by the com- 
 pany to overcome the presumption mentioned was, in all material 
 respects, worthy of credit. . . . We think that, the evidence produced 
 by the defendant in relation to the condition of the engine, its man- 
 agement, and the inspection of it remaining wholly uncontradicted, 
 the case falls within the rule on which this Court acted in Spaulding 
 v. Railway Co., 33 Wis. 591, in a case quite in point, and that the 
 Circuit Court properly held that such evidence should not be sub- 
 mitted to the jury. The weight and effect of such evidence, and the 
 amount and character of proof necessary to overcome it, are ques- 
 tions for the Court; but, in case of a conflict of testimony, the jury 
 may determine what facts are proved. We do not understand that 
 there is any conflict of evidence in relation to the facts upon which 
 the defendant relies to rebut the inference of negligence arising from 
 the mere fact that the fire was communicated from sparks and cinders 
 escaping from the defendant's engine. The question was therefore 
 wholly a question of law for the Court whether the proof was suffi- 
 cient for the purpose indicated. ... It appears to us that the evidence, 
 much of which has been set forth, was amply sufficient, within the 
 rule, to rebut all inference of negligence on the part of the defendant, 
 and that the burden of establishing such negligence on its part as 
 would justify a verdict in their favor remaining on the plaintiffs, and 
 no such evidence having been produced, judgment was properly given 
 for the defendant." 
 
 EWING V. GOODE (1897). 
 7S Fed. 442. 
 
 Taft, J.: "In this case the petition of Nellie Ewing, the plaintiff, 
 alleges that she employed the defendant, Goode, a surgeon and oculist, 
 to cure her of a certain malady of her eye, for a reward to be 
 •^* paid therefor; that defendant entered upon such employment, 
 but did not use proper care and skill in the operating on the eye 
 of plaintiff, and did not bestow proper attention and treatment upon 
 the eye after the operation, causing her to suffer great pain, and to 
 lose the right eye entirely, and to impair the sight of her left eye. The 
 answer of the defendant denies unskillfulness or lack of attention 
 on his part and any injury to the plaintiff caused thereby. . . . Before 
 the plaintiff can recover, she must show by affirmative evidence — 
 
710 BURDEN OF PROOF, AND PRESUMPTIONS. No. 614. 
 
 first, that defendant was unskilled or negligent; and, second, that his 
 want of skill or care caused injury to the plaintiff. If either element 
 is lacking in her proof, she has presented no case for the considera- 
 tion of the jury. . . . The preliminary question for the Court to settle 
 in this case, therefore, is whether there is any evidence sufficient in 
 law to sustain a verdict that defendant was unskillful or negligent, 
 and that his want of skill or care caused injury. In the Courts of 
 this and other States the rule is that if the party having the burden 
 of proof offer a mere scintilla of evidence to support each necessary 
 element of his case, however, overwhelming the evidence to the con- 
 trary, the Court must submit the issue thus made to the jury, with 
 the power to set aside the verdict, if found against the weight of the 
 evidence. In the Federal Courts this is not the rule. According to 
 their practice, if the party having the burden submits only a scintilla of 
 evidence to sustain it, the Court, instead of going through the useless 
 form of submitting the issue to the jury, and correcting error, if made, 
 by setting aside the verdict, may in the first instance direct the jury 
 to return a verdict for the defendant. Hence our inquiry is : Does the 
 case now submitted show more than a scintilla of evidence tending 
 to show want of skill or care by defendant, or injury caused thereby? 
 . . . The condition of the plaintiff cannot but awaken the sympathy 
 of every one, but I must hold that there - is no evidence before the 
 Court legally sufficient to support a verdict in her favor. I should 
 deem it my duty without hesitation to set aside a verdict for the 
 plaintiff in this case as often as it could be rendered, and, that 
 being true, it becomes my duty to direct a verdict for the defendant.""^ 
 
 B'ARABASZ v. KABAT (1900). 
 pi Md. 53, 46 Atl. 337. 
 
 Pearce, J. : "This is an action brought by the appellees against the 
 appellant to recover damages for an alleged assault and battery made 
 upon the female plaintiff by one Joseph Molis while in the dis- 
 "^*' charge of his duties and in the course of his employment as the 
 servant or agent of the appellant. At the close of the plaintifif's testimony 
 the defendant offered eight prayers, by each of which, in varying form, 
 the Court was asked to withdraw the case from the consideration of 
 
 I — Compare the following; Brett, J., would justify men of ordinary reason and 
 in Bridges V. R. Co. L. R. 7 H. L. 213 fairness in affirming the question which 
 (1874); "It is the duty of the judge to the plaintiif is bound to maintain? It 
 determine whether there is evidence fit may be said that this is so indefinite as 
 to be left to the jury on each of the to amount to no rule, tliat it leaves the 
 propositions which it is necessary that judge after all to say whether in his in- 
 the plaintiff should establish. The propo- dividual opinion the facts in evidence 
 sition seems to me to be this: Are there would prove the proposition; but I can- 
 facts in evidence which if unanswered not think so." 
 
No. 615. I. GENERAL PRINCIPLES. 711 
 
 the jury. All these prayers were rejected by the Court, and their re- 
 jection constitutes the first exception. After the rejection of these 
 prayers, the defendant proceeded with his case, and introduced a num- 
 ber of witnesses to sustain his defense. At the close of the whole 
 case, prayers were offered by both parties, and were passed upon by 
 the Court, but are not embraced in the record; it appearing there- 
 from that the defendant waived all objection to the ruUng on all these 
 prayers and on questions of evidence. . . . 
 
 . "The appellees contend that though there may have been error in the 
 Court's ruling in refusing to take the case from the jury at the conclu- 
 sion of the plaintiff's evidence, such error was waived by the defendant in 
 proceeding with his own case, and cannot be reviewed on this appeal. 
 Prior to the act of 1894, c. 516 (section 87a, art. 75, of the Code), this 
 question could not have arisen in Baltimore city, because, before the pas- 
 sage of that act, if the defendant at the close of the plaintiff's testimony 
 submitted a prayer to take the case from the jury, and such prayer was 
 refused, the defendant could not, under the rules of the courts o£ 
 Baltimore city, offer testimony in defense, and the case went to the 
 jury on the plaintiff's testimony, just as, prior to the act of 1867, c. 
 388 (Code, art. 75, §8), if a party demurred to the declaration or to 
 a plea at any stage of the case, and his demurrer was overruled, the 
 other party was entitled to judgment on the demurrer, unless by 
 leave of Court the demurrer was withdrawn and plea was filed in due 
 course according to the stage of the case. This was so, because when 
 the party elected, by his demurrer, to rest his case upon an issue at 
 law, he thereby waived the right to have an issue of fact (or, to speak 
 more accurately, acknowledge there was no issue of fact), so long as 
 1he issue of law tendered by him was not, by leave of court, with- 
 drawn. This reason of the common law would seem to be equally 
 applicable and controlling in the case of a prayer offered at the close 
 of plaintiff's testimony to take the case from the jury. By offering such 
 prayer the defendant admitted all the facts established by the plain- 
 tiff's testimony, and rested his defense upon an issue of law, viz. the 
 suflSciency of those facts to warrant a recovery. 
 
 "But Parliament in England and American Legislatures are con- 
 stantly modifying the rigor of the common law, and our own legis- 
 lature, by the act of 1867, gave to the party demurring to a declara- 
 tion or plea the right to plead over without withdrawing his demurrer, 
 and expressly provided in such case that 'upon appeal or writ of error 
 the question of law arising upon the demurrer should be decided and 
 determined as fully to every intent as if the party demurring had not 
 pleaded over.' This privilege was a wise and salutary one, since with- 
 out it only partial relief would have been afforded against the evil in- 
 tended to be remedied. Without it, the demurrant would have lost abso- 
 lutely the right to have decided the issues of law, upon which he might 
 be correct, and the only benefit he would have secured would be the 
 chance of establishing his defense upon the issue of fact to be raised 
 
712 BURDEN OF PROOF, AND PRESUMPTIONS. No. 615. 
 
 by plea. In other words, he would purchase the doubtful result of an 
 issue of fact by the abandonment of the uncertain result of an issue 
 of law. But under the operation of the act of 1867 he enjoys the benefit 
 of a defense both at law and on the facts. Thus, equal and exact jus- 
 tice is done to both parties, and the cost and delay of litigation are 
 greatly reduced. The practice of offering prayers to take a case from 
 the jury is said to be equivalent to a demurrer to evidence, and when 
 a defendant, at the close of the plaintiff's testimony, submits such a 
 prayer, it is in effect a motion for a nonsuit, which is the practice pre- 
 vailing in some states to-day. The only difference in the effect of a 
 demurrer to evidence and a motion for nonsuit upon plaintiff's testi- 
 mony, as stated by Mr. Justice Gray in Central Transp. Co. v. Pull- 
 man's Palace-Car Co., 139 U. S. 39, 11 Sup. Ct. 478,2 being that the 
 judgment on the former is a final determination of the rights of the 
 parties, whereas the judgment on the latter is in favor of plaintiff, 
 the case must be submitted to the jury; and, if in favor of defendant, 
 it is no bar to a new action. The act of 1894 enacted that where the 
 defendant offers such a prayer at the close of the plaintiff's evidence, 
 and it is rejected, 'the defendant shall not be precluded from offering 
 evidence of defense, but any defendant in any such action may offer 
 evidence of defense as fully and to the same extent as though such 
 prayer had not been offered.' It does not, however, provide, as the 
 act of 1867 did in reference to its subject-matter, that 'upon appeal or 
 writ of error the question of law arising upon such rejected prayer 
 shall be decided and determined as fully to every intent as if no evi- 
 dence in defense had been offered.' We think there was a sound rea- 
 son for not so providing, because the defendant's evidence, being in 
 
 z — Gray, J., in Central Transportation to direct a verdict for the defendant is, 
 Co. V. Pullman's Palace Car Co. (1890^, as observed by Mr. Justice Field, de- 
 cited supra: "[Under a State statute al- livering a recent opinion of this court, 
 lowing a court to enter a non-suit with- 'rather a matter of form than of sub- 
 out the plaintiff's consent, and granting stance except [that] in the case of n 
 the plaintiff a writ of error therefor,] nonsuit a new action may be brought, 
 the defendant's motion for a nonsuit is whereas in the case of a verdict the action 
 equivalent to a demurrer to evidence, is ended, unless a new trial be granted, 
 differing only in the judgment thereon either upon motion or upon appeal.' . . . 
 not being a final determination of the It is doubtless within the authority of the 
 Tights of the parties, for if it is in favor presiding judge, and is often more con- 
 ■of the plaintiff the case must be sub- venient, in order to prevent the case 
 -mitted to the jury, and if in favor of from being brought up in such a form 
 the defendant it is no bar to a new ac- that the judgment of the Court of last 
 tion. It is true that a plaintiff, who resort will not finally determine the 
 appears by the record to have voluntarily rights of the parties, to adopt the course 
 become nonsuit, cannot sue out a writ of directing a verdict for the defendant 
 of error. But in the case of a com- and entering judgment thereon. But the 
 pulsory nonsuit it is otherwise; and a judgment of nonsuit, being a final judg- 
 plaintiff, against whom a judgment of ment disposing of the particular case, 
 nonsuit has been rendered without his and rendered upon a ruling in matter of 
 consent and against his objection, is en- law duly excepted to by the plaintiff, is 
 titled to relief by writ of error. . . . subject to be reviewed in this court by 
 The difference between a motion to order writ of error." 
 a nonsuit of the plaintiff and a motion 
 
No. 616. I. GENERAL PRINCIPLES. 713 
 
 by his own deliberate election, should be available as well for the plain- 
 tiff as for the defendant, since it not unfrequently happens that the de- 
 fendant, in so electing, supplies the deficiency of plaintiff's testimony; 
 and if the defendant is still of opinion that upon the whole testimony, 
 which he has himself invoked, there is no legally sufficient evidence to 
 warrant a recovery, he may renew his prayer to take the case from 
 the jury, and so is not deprived of his right to have determined upon 
 the whole case, at that stage to which his election has brought the case, 
 the question of law raised by the renewed prayer to take the case from 
 the jury. If, on the other hand, he is of opinion that he can no longer 
 sucessfully rely upon such prayer, by reason of any additional evidence 
 brought into the case, we can perceive no reason why he should be per- 
 mitted to resort again to a position which would operate to exclude his 
 own testimony making for the plaintiff. 
 
 "The question here raised has never been presented in this Court, 
 but, for the reasons we have given, we think the contention of the 
 appellees is logical and correct. It would certainly produce a failure 
 of justice if a verdict of a jury, rendered upon the evidence of both 
 parties, and upon instructions at the close of the case, to the granting- 
 or refusing of which there was no exception, should be set aside upon 
 an alleged erroneous ruling upon the plaintiff's evidence only; and it 
 would be trifling with the purposes for which courts of justice are cre- 
 ated to require the review of an error which, if declared, would not 
 justify a reversal." 
 
 JOLIET, AURORA & NORTHERN R. CO. v. VELIE (1892). 
 140 III. sp, sp N. E. 706. 
 
 Magruder, C. J. : "This is atv action on the case begun on April 
 23, 1888, by the appellee against the appellant company in the Circuit 
 Court of Kane County to recover damages for a personal injury, 
 which resulted in the amputation of one of the appellee's legs 
 and the mangling of the other, in tearing his ribs from the breast 
 bone, in inflicting internal injuries and in completing shattering his 
 nervous system. The plea was not guilty. The first trial resulted in 
 a verdict in favor of the plaintiff for $15,000.00. A new trial was grant- 
 ed. The second trial has resulted in verdict and judgment in favor 
 of the plaintiff for $14,000.00. This judgment has been affirmed by the 
 Appellate Court, and the judgment of the latter Court is brought here 
 for review by appeal. . . . After the plaintiff below had introduced 
 his evidence and rested, the defendant — the appellant here — ^moved to 
 exclude the plaintiff's evidence. This motion was overruled, and excep- 
 tion was taken. The action of the trial Court in thus overruling the 
 motion of the defendant to exclude all of the plaintiff's evidence, so 
 made at the close of the plaintiff's evidence, and not afterwards, is the 
 
714 BURDEN OF PROOF, AND PRESUMPTIONS. No. 616. 
 
 only error now insisted upon by appellant's counsel, except the claim 
 that the damages are excessive which will be noticed hereafter. 
 
 "A motion to exclude the evidence operates as a demurrer to the 
 evidence. Where the defendant demurs to the plaintiff's evidence, he 
 must be held to admit not only all that the plaintiff's testimony proves, 
 but all that it tends to prove. The demurrer not only admits the truth 
 of the testimony demurred to, but all the conclusions of fact which 
 a jury may fairly draw therefrom. The-testimony is to be taken most 
 strongly against the party demurring, and whatever inferences a jury 
 would be entitled to draw the court ought to draw. The object of the 
 demurrer is to refer to the Court the law arising from facts. . . . 
 Hence, if there is evidence tending to prove the issues in favor of the 
 plaintiff, the judgment must be in his favor, or, what amounts to 
 the same thing under the more recent practice, the motion to exclude 
 must be overruled. If, therefore, the record in this case was in such 
 shape as to present for our consideration the question of law whether 
 the evidence, that had been introduced by the plaintiff below when he 
 rested his case, was or was not sufficient to justify a recovery, or estab- 
 lish a cause of action, we would be obliged to examine such evidence 
 in order to determine the question thus presented. 
 
 "But we do not think that the appellant is in a position to urge 
 before this Court, that the trial Court erred in refusing to sustain its 
 motion to exclude the evidence of the plaintiff below. When the motion 
 was overruled the defendant below did not stand by the motion ; on the 
 contrary, it proceeded to introduce testimony to contradict the proofs 
 of the plaintiff; and, after the introduction of its own testimony, it did 
 not renew its motion to exclude, nor did it ask the court to instruct 
 the jury to find for the defendant, but allowed the case to go to the 
 jury under instructions framed upon the theory that there was such a 
 conflict in the evidence as to justify the jury in passing upon it. Where 
 a defendant, whose motion to exclude plaintiff's evidence, made as soon 
 as plaintiff rests, is overruled, fails to stand by such motion, or to renew 
 it when all the testimony is in, or to request that the jury be instructed 
 to find for the defendant, but introduces testimony of his own to con- 
 tradict the case made by the plaintiff, and requests that the jury be 
 instructed to pass upon the issues involved and to determine them ac- 
 cording to the preponderance of the evidence, he thereby waives his 
 right to object to the action of the Court in overruling his motion, and 
 is estopped from assigning such action as error in a court of review. 
 
 "This conclusion necessarily follows from the observations already 
 made upon the nature of such a motion, which operates as a demurrer 
 to the evidence. When a defendant demurs to a declaration and his 
 demurrer is overruled, he has two courses before him. He can either 
 stand by his demurrer and suffer judgment to go against him, trust- 
 ing to the upper Court to sustain his position, or he can plead to the 
 declaration and go to trial. If he does the latter, he loses any rights 
 which he might have had under his demurrer if he had stood by it. We 
 
No. 616. I. GENERAL PRINCIPLES. 715 
 
 see no reason why the same rule should not apply in the case o£ a 
 motion by the defendant to exclude the plaintiff's evidence, when such 
 motion is made as soon as the plaintifif rests his case. A motion of 
 this kind is a substitute for the old practice of filing a demurrer to 
 the evidence, which set out all the facts admitted, and was expressed 
 in the formal language of the ordinary demurrer. The plaintifif then 
 joined in the demurrer, or refused to join therein, according to the 
 ruling of the court. Inasmuch as the demurrer admits all the facts 
 stated in it to be true, and admits also all the inferences which can be 
 properly drawn from the facts, and merely claims that the testimony is 
 not sufficient in law to enable the plaintiff to maintain his action, the 
 defendant necessarily withdraws his admissions when he neglects to 
 stand by his demurrer after it is overruled, and proceeds to introduce 
 witnesses to contradict the very evidence which he has just admitted 
 to be true. The action of the Court in ruling upon the demurrer to the 
 evidence is based upon defendant's admission that the facts estab- 
 lished by the evidence are true. When the defendant no longer admits 
 such facts to be true but tries to prove that they are false, he ought 
 to be held to have waived any error based upon the admissions thus 
 withdrawn. . . . When the testimony of the defendant is introduced, 
 the case made by the plaintiff may have been strengthened, and its de- 
 fects, if any existed, may have been cured. Very often the cross-exam- 
 ination of the defendant's witnesses brings out facts favorable to the 
 plaintiff's cause of action which the latter could not otherwise obtain. 
 When all the evidence is in on both sides, an entirely different case may 
 be presented- from that which existed when the plaintiff rested. Even 
 though a motion to exclude plaintiff's evidence made at the close of 
 his case may have been improperly overruled, yet the evidence on both 
 sides when considered all together may show so clearly, that the cause 
 depends upon the effect or weight of testimony, as not only to justify 
 but to require the jury to pass upon it. Would it be right for this Court 
 to reverse a judgment for error in overruling such a motion, if it could 
 plainly see that the case was one for the jury in view of all the testi- 
 mony presented by both sides, and that it was properly submitted to 
 the jury under instructions applicable to a controverted state of facts? 
 We think not. 
 
 "If the defendant in this case felt confidence in the position, that 
 the evidence introduced by the plaintiff established no cause of action, 
 it should have stood by its motion. . . . What matters it that it would 
 have been wrong to submit the case to the jury upon the plaintiff's 
 evidence alone, if it was right to submit it upon the plaintiff's evidence 
 and the defendant's evidence together? . . . They [defendant's counsel] 
 nowhere claim, or ask us to hold, that the case was not properly sub- 
 mitted to the jury upon all the evidence presented on both sides. Their 
 sole contention is, that the plaintiff when he rested had not made a case, 
 and that the trial court erred in not sustaining the motion then made 
 to exclude plaintiff's evidence without reference to the bearing, or effect 
 
716 BURDEN OF PROOF, AND PRESUMPTIONS. NO. 616. 
 
 on the issues, of the evidence subsequently introduced; and that, for 
 this alleged error alone, we must reverse the cause irrespective of any- 
 thing that occurred after such motion wras overruled, and no matter 
 upon what theory or upon what kind of instructions the case was finally 
 submitted. We are unable to concur in this view."' 
 
 COMMONWEALTH v. WEBSTER (1850). 
 5 Cush. 295, 320. 
 
 The facts of this case have been stated ante, in No. 17. 
 
 Shaw, C. J., charging the jury: "Another rule is, that the circum- 
 stances taken together should be of a conclusive nature and 
 tendency, leading on the whole to a satisfactory conclusion, and 
 producing in effect a reasonable and moral certainty, that the accused, 
 and no one else, committed the offence charged. . . . The evidence . . , 
 in case of homicide, must not only prove a death by violence, but must, to 
 a reasonable extent, exclude the hypothesis of suicide, and a death by the 
 act of any other person. This is to be proved beyond reasonable doubt. 
 
 "Then, what is reasonable doubt? It is a term often used, probably 
 pretty well understood, but not easily defined. It is not mere possible 
 doubt; because everything relating to human affairs, and depending 
 on moral evidence, is open to some possible or imaginary doubt. It 
 is that state of the case, which, after the entire comparison and con- 
 sideration of all the evidence, leaves the minds of jurors in that 
 condition that they cannot say they feel an abiding conviction, to a 
 moral certainty, of the truth of the charge. The burden of proof is 
 upon the prosecutor. All the presumptions of law independent of evi- 
 dence are in favor of innocence; and every person is presumed to be 
 innocent until he is proved guilty. If upon such proof there is reason- 
 able doubt remaining, the accused is entitled to the benefit of it by an 
 acquittal. For it is not sufficient to establish a probability, though a 
 strong one arising from the doctrine of chances, that the fact charged 
 is more likely to be true than the contrary ; but the evidence must estab- 
 lish the truth of the fact to a reasonable and moral certainty; a cer- 
 tainty that convinces and directs the understanding, and satisfies 
 the reason and judgment, of those who are bound to act conscientiously 
 upon it. This we take to be proof beyond reasonable doubt." 
 
 3 — Gray J., in Columbia &c. R. R. Co, plaintiff is not entitled to recover cannot 
 
 V. Hawthorne, 144 U. S. 202, 12 Sup, be made by the defendant, as a matter 
 
 591 (1892): "The question of the suf- of right, unless at the close of the whole 
 
 ficiency of the evidence for the plaintiff evidence; and that if the defendant, at 
 
 to support his action cannot be consid- the close of the plaintiff's evidence, and" 
 
 ered by this court. It has repeatedly without resting his own case, requests an(? 
 
 been decided that a request for a ruling is refused such a ruling, the refusal 
 
 that upon the evidence introduced the cannot be assigned for error." 
 
No. 618. I. GENERAL PRINCIPLES. 717 
 
 BUEL V. STATE (1899). 
 104 Wis. 132, 80 N. W. 78. 
 
 Marshall, J., commenting on the phrase "reasonable doubt": 
 "Much discussion is found in the adjudged cases as to whether any 
 attempt to explain it does not tend to confuse rather than to 
 "■'•'' enlighten the jury. It is said that scholastic attempts to explain 
 the meaning of such words, which are more easily understood than 
 explained, are liable to lead such men as commonly make up our juries 
 to think that the ordinary processes of "reasoning, by which they are 
 accustomed to come to conclusions in the ordinary- affairs of life, are 
 not suitable to the jury room in a criminal case, but that some other 
 process of reasoning is to be adopted which they are to gather from 
 the language of the trial judge, and that they are thereby really weakened 
 in their ability to come to a just conclusion; that it would be better 
 to leave them to exercise their own intelligence in regard to language 
 so plain that it is not easy to make it plainer by explanation. Mr. Jus- 
 tice Newman said, in Hoffman v. State:* 'It needs be a skillful definer 
 who will make the meaning of the term ("beyond a reasonable doubt") 
 more clear by the multiplication of words,' while the writer expressed 
 the view, in Emery v. State,^ that the due administration of justice in 
 many cases requires a careful explanation of the term to be given to 
 the jury, and that without it justice is liable at times, through igno- 
 rance, to be defeated, and the efficacy of the law to protect society, and 
 its administration by courts, discredited. In State v. Sauer," Mitchell, 
 J., expressed the opinion that 'most attempts at explaining the meaning 
 of a "reasonable doubt" are made by the use of expressions that them- 
 selves need explanation more than the term sought to be explained by 
 them, an/i that the better way is to omit such attempts, but that if such 
 attempts be indulged in it would be better to adopt those definitions that 
 have received general approval by Courts.' In People v. Stubenvoll,'' 
 Champlin, J., speaking for all the members of the court, said: 'We 
 do not think that the phrase ''reasonable doubt" is of such unknown or 
 uncommon signification that an exposition by the trial judge is called 
 for. Language that is within the comprehension of persons of ordinary 
 intelligence can seldom be made plainer by further defining or refining. 
 All persons who possess the qualifications for jurors know that a doubt 
 of the guilt of the accused, honestly entertained, is a reasonable doubt.' 
 In Judge Thompson's work on Trials,* it is said that 'all the definitions 
 are little more than metaphysical paraphrases of an expression invented 
 by the common-law judges for the very reason that it was capable of 
 being understood and applied by men in the jury box.' Many more 
 instances might be given where judges of appellate courts and text writ- 
 
 4 — 97 Wis. 576, 73 N. W. 52. 7 — 62 Mich. 329, 28 N. W. 883. 
 
 5 — loi Wis. 27, 78 N. W. 145. 8 — II, % 2469. 
 
 6—38 Minn. 438 N. W. 355- 
 
718 BURDEN OF PROOF, AND PRESUMPTIONS. No. 618. 
 
 ers have discouraged all attempts at explanation of what is a reasonable 
 doubt, from the standpoint of a juror. Nevertheless the fact remains 
 that trial judges, at least in important criminal trials, generally take 
 great pains to explain the term so that the commonest understanding 
 can grasp its meaning. The practice in that regard has grown up 
 from frequent observations of the necessity of it. It is considered here 
 that it is proper in all cases to make a careful explanation of the term, 
 and that where the prosecution relies wholly on circumstantial evidence 
 it is the better practice to do so, taking the utmost care, however, to 
 use only expressions that have been approved particularly by this 
 Court."» 
 
 ELLIS v. BUZZELL (1872). 
 60 Me. 2op, 21^. 
 
 Barrows, J. : "The plaintiff claims to recover damages of the de- 
 fendant, because, he says, the defendant falsely charged hirn with the 
 commission of the crime of adultery. The defendant says the 
 plaintiff ought not to recover damages, because the accusation was 
 not false, but true, and he testified that he saw the plaintiff in the act of 
 adultery with a certain woman. The plaintiff denies this in his testimony, 
 and produces the deposition of the woman, who denies it also. Hereupon 
 he requests the judge to instruct the jury that the defendant in order to 
 maintain the defense must prove the act of adultery upon him beyond 
 a reasonable doubt, the same as if he was on trial for the commission of 
 a crime. The judge refused so to instruct, and, on the contrary, in- 
 structed the jury that if the defendant had made out the truth of the 
 charge against the plaintiff by a preponderance of testimony, it was 
 sufficient to entitle him to a verdict; and that proof of the truth of the 
 statements made by the defendant would be a complete justification for 
 uttering them. . . . 
 
 "The burden, however, of proving that what he has said is true, rests 
 rightfully enough upon the defendant, not only because he holds the 
 affirmative according to the pleadings, but because of the presumption of 
 innocence. This presumption, as well as whatever testimony the plain- 
 tiff may offer to repel the charge, the defendant must be prepared to 
 overcome by evidence. But when he has done this by that measure 
 and quantity of evidence which is ordinarily held sufficient to entitle 
 a party upon whom the burden of proof rests, to a verdict in his favor 
 
 9 — Compare the following: 1901, Len- use, and the jury could understand them 
 
 ert V. State, — Tex. Cr. — , 63 S. W. as easily as the Court, and the Court had 
 
 563: "The jury sent word to the Court a reasonable doubt as to whether or not 
 
 . . . that they desired an additional he could under the law charge them as 
 
 charge upon the meaning of 'reasonable to their meaning.' We see no error in 
 
 doubt' . . . Thereupon the Court told the this action of the trial Court calculated 
 
 jury verbally 'that the two words "rea- to injure the rights of the appellants." 
 sonable doubt" were words of common 
 
No. 619. I. GENERAL PRINCIPLES. 719 
 
 in a civil case, shall he be required to go further, and in order to save 
 himself from being mulcted in damages for the benefit of the plain- 
 tiff, free the minds of the jury from every reasonable doubt of the plain- 
 tiff's guilt, as the State must in the trial of a criminal prosecution? 
 
 "We see no good reason for thus confounding the distinction which 
 is made by the best text-writers on evidence, between civil and Criminal 
 cases with regard to the degree of assurance which must be given to 
 the jury as the basis of a verdict. ... It is true, that this distinction 
 has heretofore been carried into civil cases and applied to suits in which 
 it incidentally became necessary to determine, in order to settle the 
 issue which the parties were litigating, whether one of the parties had 
 committed an offense against the criminal law. Hence have arisen in 
 these actions for defamation among others, a series of decisions which, 
 if juries had acted according to their tenor, would have been productive 
 not unfrequently of very unjust results. Practically we do not con- 
 sider the form of expression used in the instructions to juries in cases 
 of this description as very likely to change the result. We do not be- 
 lieve, if the jury in the present case found themselves inclined to 
 believe upon the whole evidence that the plaintiff was verily guilty, as 
 the defendant had said, that they would have proceeded to assess dam- 
 ages in his favor, because he might have started a reasonable doubt in 
 their minds whether he ought to be convicted of the crime and sent 
 to the State prison, upon that evidence, even had they been so instructed. 
 The practical effect of such an instruction would probably have been 
 to eliminate the doubt from the minds of the jury, not to change the 
 result at which they arrived. But we think it best to recognize what 
 has been justly said to be 'well understood, that a jury will not require 
 so strong proof to maintain a civil action as to convict of a crime ;' 
 and to draw the line between the cases where full proof beyond a 
 reasonable doubt shall be required and those where a less degree of 
 assurance may serve as the basis of a verdict, where the juror instinct- 
 ively places it, — making it to depend rather upon the results which, are 
 to follow the decision, than upon a philosophical analysis of the char- 
 acter of the issue. ... A greater degree of caution in coming to a 
 conclusion should be practiced to guard life or liberty against the con- 
 sequences of a mistake always painful, and possibly irreparable, than 
 is necessary in civil cases, where, as above remarked, the issue must 
 be settled in accordance with one view or the other, and the verdict is 
 followed with positive results to one party or the other, but not of so 
 serious a nature."^" 
 
 10 — Compare the authorities cited in W., § 2498. 
 
720 BOOK 11. No. 620. 
 
 TITLE II. 
 
 PRESUMPTIONS IN SPECIFIC ISSUES. 
 
 SUTTON V. SADLER (1857). 
 3 C. B. N. S. &7. 
 
 Ejectment; the issue was as to the competency of William Walter 
 Sutton to make a will. The defendant admitted that the plaintiff was 
 heir-at-law of the person last seised, and claimed as devisee, 
 " " and insisted that he was entitled to begin, which was conceded. 
 A will was then produced; and, after proving the execution of it, as 
 required by the statute 7 W. 4 & i Vict. c. 26, the defendant's counsel 
 called witnesses to prove the testator's competency. Evidence was 
 then given on the part of the plaintiff, to impeach the competency of 
 the testator ; and it was sought to be shown that he had been incompe- 
 tent a nativitate, and also that, if ever capable of making a will, he 
 had from habitual and incessant drunkenness rendered himself incap- 
 able. The learned Baron, in leaving the case to the jury, told them 
 that the heir-at-law was entitled to recover unless a will was proved; 
 but that, when a will was produced, and the execution of it proved, 
 the law presumed sanity, and therefore the burthen of proof was 
 shifted; and that the devisee must prevail, unless the heir-at-law estab- 
 lished the incompetency of the testator; and that, if the evidence was 
 such as to make it a measuring cast, and leave them in doubt, they 
 ought to find for the defendant. The jury returned a verdict for the 
 defendant. Grove, Q. C, obtained a rule nisi for a new trial, on the 
 grounds of misdirection. 
 
 Cresswell, J. : "This was an ejectment tried before Bramwell, 
 B., at the last Chester Assizes. The defendant admitted that the plain- 
 tiff was heir-at-law of the person last seised, and claimed as devisee, 
 and insisted upon the right to begin, which was granted. His counsel 
 then produced a will, and, after proving the execution of it, as re- 
 quired by the statute 7 W. 4 & i Vict. c. 26, called witnesses to prove 
 the competency of the testator. The plaintiff then gave evidence to 
 impeach his competency, and endeavored to show that he had been 
 incompetent a nativitate. The learned judge in summing up, told the 
 jury that the heir-at-law was entitled to recover unless a will was 
 proved; but that, when a will was produced, and the execution of it 
 proved, 'the law presumed sanity, and therefore the burthen of proof 
 was shifted;' and that the devisee must prevail, unless the heir-at-law 
 established the incompetency of the testator; and that, if the evidence 
 was such as to make it a measuring cast, and leave them in doubt. 
 
No. 620. II. SPECIFIC PRESUMPTIONS. 721 
 
 they ought to find for the defendant. A verdict having been found 
 for the defendant, a rule nisi for a new trial was granted in Easter 
 Term, it being alleged that the learned judge misdirected the jury. 
 "Some very valuable observations on this subject are to be found in 
 the judgment of Lord Brougham in Waring v. Waring, 6 Moore's P. 
 C. 355: 'The burthen of proof,' says his Lordship, 'often shifts about 
 in the progress of the cause, accordingly as the successive steps of the 
 inquiry, by leading to inferences decisive until rebutted, cast on the 
 one or the other party the necessity of protecting himself from the 
 consequences of such inferences. Nor can anything be less profitable 
 as a guide to our ultimate judgment, than the assertion, which all 
 parties are so ready to put forward severally, that, in the question 
 under consideration, the proof is on the other side. Thus, no doubt, 
 he who propounds a latter will undertakes to satisfy the court of pro- 
 bate that the testator made it, and was of sound and disposing mind. 
 But very slight proof of this, where the factum is regular, will suffice: 
 and they who impeach the instruinent must produce their proofs, should 
 the party actor (the party propounding) choose to rest satisfied with 
 his prima facie case after an issue tendered against him. In this case, 
 the proof has shifted to the impugner; but his case may easily shift 
 it back again.' The result must be the same where the party propound- 
 ing does not rely on a prima facie case, but gives the whole of his 
 proofs in the first instance. The onus remains on him throughout; 
 and the court or jury who have to decide the question in dispute must 
 decide upon the whole of the evidence so given: and if it does not 
 satisfy them that the will is valid, they ought to pronounce against 
 it. If, indeed, a will, not irrational on the face of it, is produced 
 before a jury, and the execution of it proved, and no other evidence 
 is offered, the jury would be properly told that they ought to find for 
 the will: and, if the party opposing the will gives some evidence of 
 incompetency, the jury may, nevertheless, if it does not disturb their 
 belief in the competency of the testator, find in favor of the will: 
 and in eacn case the presumption in favor of competency would prevail. 
 But that is not a mere presumption of law : and, when the whole matter 
 is before the jury on evidence given on both sides, they ought not 
 to affirm that a document is the will of a competent testator, unless 
 they believe that it really is so. The result is, that the rule for a new 
 trial must be made absolute."^ 
 
 I — Compare the following expositions: sumption of sanity, applicable to other 
 
 Thomas, J., in Crowninshield v. Crown- contracts, is to be applied to wills, it 
 
 inshield, 2 Gray 524 (1854); "On the does not change the burden of proof; 
 
 whole matter, we are of opinion, that that the burden of proof does not shift 
 
 where a will is offered for probate, the in the progress of the trial, the issue 
 
 burden of proof, in this Commonwealth, throughout being one and the same; and 
 
 is on the executor or other person seek- that if, upon the whole evidence, it is 
 
 ing such probate, to show that the testa- left uncertain whether the testator was 
 
 tor was, at the time of its exception, of of sound mind or not, then it is left 
 
 sound mind; that if the general pre- uncertain whether there was under the 
 
722 BURDEN OF PROOF, AND PRESUMPTIONS. No. 621. 
 
 DAVIS V. UNITED STATES (1895). 
 160 U. S. 46p, 16 Sup. 2S3- 
 Harlan, J.: "Dennis Davis was indicted for the crime of having, 
 on the i8th day of September, 1894, at the Creek Nation, in the Indian 
 Territory, vjrithin the Western District of Arkansas, feloniously, 
 wrilfully, and of his malice aforethought, killed and murdered one 
 Sol Blackwell. He was found guilty of the charge in the indictment. 
 A motion for a new trial having been overruled, and the court having 
 adjudged that the accused vas guilty of the crime of murder, as 
 charged, he was sentenced to suffer the penalty of death by hanging. 
 At the trial below the government introduced evidence which, if alone 
 considered, made it the duty of the jury to return a verdict of guilty 
 of the crime charged. But there was evidence tending to show that 
 at the time of the killing the accused, by reason of unsoundness or 
 weakness of mind, was not criminally responsible for his acts. . . . 
 The issue, therefore, was as to the responsibility of the accused for 
 the killing alleged and clearly proved. In its elaborate charge the 
 Court instructed the jury as to the rules by which they were to be 
 guided in determining whether the accused took the life of the de- 
 ceased feloniously, wilfully, and with malice aforethought. . . . 
 These extracis from the charge of the Court present this important 
 question: If it appears that the deceased was killed by the accused 
 under circumstances which — nothing else appearing — made a case of 
 murder, can he jury properly return a verdict of guilty of the offence 
 charged if upon the whole evidence from whatever side it comes they 
 have a reasonable doubt whether at the time of killing the accused 
 was mentally competent to distinguish between right and wrong or to 
 understand the nature of the act he was committing? If this question 
 be answered in the negative the judpment must be reversed; for the 
 Court below instructed the jury that the defence of insanity could not 
 avail the accused unless it appeared afifirm'atively, to the reasonable 
 satisfaction of the jury, that he was not criminally responsible for 
 his acts. The fact of killing being clearly proved, the legal presump- 
 tion, based upon the common experience of mankind, that every man 
 is sane, was sufficient, the court in effect said, to authorize a verdict 
 of guilty, although the jury might entertain a reasonable doubt upon 
 the evidence, whether the accused, by reason of his mental condition, 
 was criminally responsible for the killing in question. In other words, 
 if the evidence was in equilibria as to the accused being sane, that is, 
 
 statute a person capable of making the city, and this presumption satisfies the 
 will, and the will cannot be proved." burden of proof in that respect; and the 
 WhitHeld, J., in Sheehan, v. Kearney, contestant must fail unless he overcomes 
 — Miss. — , 21 So. 46 (1896) : "Now, this by proof on his part. But there is 
 when the proponent of a will offers the no shifting of the burden of proof, proper- 
 will and the record of its probate, a ly understood." 
 
 presumption is thereby raised that the Compare the authorities cited in W.^ 
 
 alleged testator had testamentary capa- § 2500. 
 
No. 621. II. SPECIFIC PRESUMPTIONS. 723 
 
 capable of comprehending the nature and effect of his acts, he was 
 to be treated just as he would be if there were no defence of insanity 
 or if there were an entire absence of proof that he was insane. 
 
 "This exposition of criminal law is not without support by adjudi- 
 cations in England and in this country. . . . There are other cases to 
 the same general effect, some of them holding that the presumption 
 of sanity will prevail, and that the jury may properly convict, unless 
 the defence of insanity is established beyond a reasonable doubt ; othars, 
 that it is the duty of the jury to convict, unless it appears by a pre- 
 ponderance of evidence that the acdused was insane when the killing 
 occurred. 
 
 "We are unable to assent to the doctrine that in a prosecution for 
 murder, the defence being insanity, and the fact of the killing with a 
 deadly weapon being clearly established, it is the duty of the jury to 
 convict where the evidence is equally balanced on the issue as to the 
 sanity of the accused at the time of the killing. On the contrary, he 
 is entitled to an acquittal of the specific crime charged if upon all 
 the evidence there is reasonable doubt whether he was capable in law 
 of committing crime. . . . 'As a vicious will without a vicious act 
 is no civil crime, so, on the other hand, an unwarrantable act without 
 a vicious will is no crime at. all. So that to constitute a crime against 
 human laws, there must be, first, a vicious will; and, secondly, an un- 
 lawful act consequent upon such vicious will.' 4 Bl. Com. 21. All 
 this is implied in the accepted definition of murder. . . . Upon whom 
 then must rest the burden of proving that the accused, whose life 
 it is sought to take under the forms of law, belongs to a class capa- 
 ble of committing crime? On principle, it must rest upon those who 
 aflSrm that he has committed the crime for which he is indicted. That 
 burden is not fully discharged, nor is there any legal right to take 
 the life of the accused, until guilt is made to appear from all the 
 evidence in the case. The plea of not guilty is not unlike a special 
 plea in a civil action, which, admitting the case averred, seeks to estab- 
 lish substantive ground of defence by a preponderance of evidence. It 
 is not in confession and avoidance, for it is a plea' that controverts 
 the existence of every fact essential to constitute the crime charged. 
 Upon that plea the accused may stand, shielded by the presumption 
 of his innocence, until it appears that he is guilty; and his guilt cannot 
 in the very nature of things be regarded as proved, if the jury enter- 
 tain a reasonable doubt from all the evidence whether he was legally 
 capable of committing crime. 
 
 "This view is not at all inconsistent with the presumption which 
 the law, justified by the general experience of mankind as well as 
 by considerations of public safety, indulges in favor of sanity. If 
 that presumption were not indulged the government would always be 
 under the necessity of adducing affirmative evidence of the sanity of 
 an accused. But a requirement of that character would seriously delay 
 and embarrass the enforcement of the laws against crime, and in most 
 
724 BURDEN OF PROOF, AND PRESUMPTIONS. 1<0. 621. 
 
 cases be unnecessary. Consequently the law presumes that every one 
 charged with crime is sane, and thus supplies in the first instance the 
 required proof of capacity to commit crime. It authorizes the jury 
 to assume at the outset that the accused is criminally responsible for 
 his acts. . . . But to hold that such presumption must absolutely con- 
 trol the jury until it is overthrown or impaired by evidence sufficient 
 to establish the fact of insanity beyond all reasonable doubt or to the 
 reasonable satisfaction of the jury, is in effect to require him to estab- 
 lish his innocence, by proving that he is not guilty of the crime 
 charged."^ 
 
 SCHMISSEUR V. BEATRIE (1893). 
 147 III. 210, 35 N. E. 535. 
 
 Magruder, J.: "This is a bill filed on July 16, 1892, in the Cir- 
 cuit Court of St. Clair County by Elizabeth Schmisseur and Mary 
 Wuest and their husbands against August Beatrie and Eliza- 
 """ beth Beatrie for the partition of certain lands. The defendants, 
 who are minors, answered by their guardian ad litem. Upon hearing 
 had, the decree of the court below was in favor of the defendants 
 upon the material issues involved, and this appeal is prosecuted from 
 said decree by the complainants. Mary Beatrie, the wife of Nicholas 
 Beatrie, died testate on September 27, 1890, owning certain lands in 
 said county, and provided in her will, after giving her husband the 
 sole and exclusive use and control of her property real and personal 
 during his life, that after his death all her property, both real and 
 personal, should descend to her 'lawful heirs according to the laws 
 of descent.' On March 25, 1892, Nicholas Beatrie, her husband, died 
 testate as to the major portion of his estate, but intestate as to some 
 of his real estate. Said Nicholas and Mary left two daughters, the 
 appellants Elizabeth Schmisseur and Mary Wuest. They had had a 
 son, Nicholas Beatrie Jr. who died before either of them, to wit; in 
 the year, 1880, leaving two children, the appellees August Beatrie and 
 Elizabeth Beatrie. The question in the case is, whether or not the 
 appellees are the legitimate children of Nicholas Beatrie Jr. deceased. 
 If they are his legitimate children, then the decree correctly finds that, 
 as the grand-children of Mrs. Mary Beatrie, deceased, they are each 
 entitled to an undivided one sixth part of the real estate of which she 
 died seized, and that, as the grand-children of Nicholas Beatrie Sr., 
 they are each entitled to an undivided one sixth part of the real estate 
 owned by him at his death and as to which he died intestate. 
 
 "The case turns upon the validity or invalidity of the marriage 
 of Nicholas Beatrie Jr., the father of appellees, with Margaret Hube, 
 their mother. It is conclusively proven, that said Nicholas Beatrie Jr. 
 
 2 — Compare the authorities cited in W., § 2501. 
 
No. 622. II. SPECIFIC PRESUMPTIONS. 725 
 
 and Margaret Hube of St. Clair County were married by a justice of 
 the peace of said county on November 14, 1876, under a marriage 
 license duly issued on that day by the county clerk of that county. 
 It is claimed, however, by the appellants, that at this time Nicholas 
 Beatrie Jr. had a wife by a former marriage, who was then still living 
 and undivorced. A second marriage is void where either of the par- 
 ties to it has a husband or wife by a former marriage, who has never 
 been divorced and is still living. It is proven that, on November 12, 
 1872, said Nicholas Beatrie Jr. was married to Barbara Anstedt of 
 3aid county by a Catholic priest in said county in pursuance of a mar- 
 riage license duly issued by the county clerk of said county on No- 
 vember 8, 1872. He and Barbara had one child which died in infancy. 
 They lived together as man and wife for about one year and a half, 
 or two years, in said county, and then separated and never lived to- 
 gether again. She was living at the time of the marriage with Mar- 
 garet Hube and did not die until 1885, five years after the death of 
 Nicholas Beatrie Jr. One witness swears, that she married one John 
 Meyer after she separated from said Nicholas, and before the latter's 
 second marriage in November, 1876. 
 
 "When a marriage license has been solemnized according to the 
 forms of law every presumption will be indulged in favor of its 
 validity. The presumption is one in favor of innocence, as it will 
 be presumed that a man will not commit the crime of bigamy by 
 marrying a second time while his first wife is living. Absence for 
 seven years without being heard from creates the presumption of 
 ■death. But the presumption in favor of the validity of marriage is 
 so strong, that a former husband or wife will be presumed to be dead 
 after an absence of less than seven years. The ordinary presumption 
 in favor of the continuance of human life is made to give way to the 
 presumption in favor of the innocence of a second marriage. In the 
 present case, however, no presumption as to the death of Barbara 
 Beatrie can be indulged in favor of the validity of the marriage with 
 Margaret Hube, because the proof shows affirmatively that said Bar- 
 bara was alive when said marriage took place, and for nine years 
 •thereafter. 
 
 "It is claimed, however, in behalf of the appellees, that Nicholas 
 Beatrie Jr. will be presumed to have been divorced from his first wife 
 before he married the second time. We have said that the courts 'will 
 often presume a previous divorce in order to sustain the second mar- 
 riage.' (Cartwright v. McGown, 121 111. 388.) . . . The two marriages 
 of Nicholas Beatrie Jr., and the existence of the first wife at the time 
 of the second marriage, being established by proof, the presumption 
 would arise in favor of a divorce from the first wife in order to sustain 
 the second marriage. In view of this presumption the burden of proof 
 rested upon the appellants, as the objecting parties, to show that there 
 had been no divorce. The law is so positive in requiring a party, who 
 assert the illegality of a marriage, to take the burden of proving it, 
 
726 BURDEN OF PROOF, AND PRESUMPTIONS. No. 622. 
 
 that such a requirement is enforced even though it involves the prov- 
 ing of a negative. 
 
 "In order to show that there had been no divorce, the complainants 
 below introduced the bill and other proceedings in a divorce suit begun 
 by Nicholas Beatrie Jr. against Barbara Beatrie. The bill in that suit 
 was filed on November 14, 1876, in the Circuit Court of St. Clair 
 County. It alleged that said Nicholas was married to said Barbara 
 on November I2, 1872; that he lived with her until October, 1873; 
 that on October i, 1873, she wilfully deserted and absented herself from 
 him without any reasonable cause and continued such desertion for more 
 than two years; that she had committed adultery with one Meyer, and 
 was living with him as his wife, etc. Summons was served on said 
 Barbara on December 11, 1876. No decree of divorce was ever entered 
 in said cause. The record shows that, at the January term, 1877, the 
 cause was continued, and at the April term, 1877, the court ordered 
 that it 'be dismissed at complainant's costs and execution is awarded 
 therefor.' It will be noted, that the bill for divorce was filed on the 
 same day on which the second marriage took place. It contains an 
 admission by Nicholas Beatrie Jr., that, on that day, he was still the 
 lawful husband of his first wife, and had not been divorced from her. 
 ... In Cartwright v. McGown, supra, it appeared that the first mar- 
 riage took place in Kentucky in 1841, and the second in Illinois in 
 1843 while the first wife was living and undivorced; and it was held 
 that, as the divorce obtained by the first wife was not granted until 
 1846, the facts did not justify the Court in presuming that the hus- 
 band had procured a divorce from his first wife. 
 
 "It is said, however, that although Nicholas Beatrie Jr. may not 
 have obtained a divorce from his first wife Barbara, yet the law will 
 indulge the presumption that she obtained a divorce from him before 
 November 14, 1876, in order to sustain the validity of the second mar- 
 riage entered into on that day. . . . But, in the case at bar, the com- 
 plainants below not only introduced in evidence the bill of divorc6 
 above mentioned and the proceedings showing its dismissal without 
 a decree, but they also proved that Nicholas Beatrie Jr. and his first 
 wife had lived in St. Clair County and been residents thereof during 
 all their lives, and that, from an examination of the records of the 
 Circuit Court of that county from March, 1872, to September, 1881, 
 no entries appeared in any suit of Nicholas Beatrie Jr. against Bar- 
 bara Beatrie, or of Barbara Beatrie against Nicholas Beatrie Jr., ex- 
 cept those already specified. . . . The evidence introduced to show that 
 there had been no divorce was suflScient to so far overcome the pre- 
 sumption in favor of a divorce obtained by the first wife, as to shift 
 back upon the defendants the burden of showing, that there had been 
 a divorce. . . . Besides proof of the first marriage, and of the exist- 
 ence of the first wife at the time of the second marriage, and of the 
 admission of the husband that he had not been divorced from his first 
 wife when he married the second one, it was shown, that no divorce 
 
No. 623. II. SPECIFIC PRESUMPTIONS. 727 
 
 had been obtained by either the husband, or his first wife, in the Cir- 
 cuit Court of the county where both of them had always resided, and 
 where divorce proceedings, if there had been any, would be most 
 naturally looked for. This testimony threw the burden on the de- 
 fendants below to go farther, and prove that a divorce had been 
 obtained if such was the fact. A decree of divorce is a matter of 
 record, and, if such a record is in existence, it can be produced. 
 
 "For the reasons here stated, we think, that the case ought to be 
 reversed and sent back, in order that the appellees may have the 
 opportunity of proving that there was a divorce between Nicholas 
 Beatrie Jr. and his first wife, if such proof can be furnished."* 
 
 GULF, COLORADO & SANTA FE R. CO. v. SHIEDER (1895). 
 88 Tex. 152, 30 S. W. 902. 
 
 Denman, J.: "This suit was brought by T. D. Shieder against the 
 Gulf, Colorado & Santa Fe Railway Company to recover damages for 
 injuries inflicted upon the plaintiff's wife in a collision between 
 one of the trains of defendant and the buggy in which Mrs. 
 Shieder wasi riding at the intersection of a public street with the rail- 
 road in the town of Ballinger on the 17th day of April, 1892. . . . The 
 Court below charged the jury that the burden of proof was upon de- 
 fendant railroad to establish contributory negligence on the part of 
 Mrs. Shieder. This charge is assigned as error. There is much con- 
 flict of authority upon the question as whether the burden of proof, 
 upon the issue of contributory negligence, rests upon plaintiff or de- 
 fendant. The confusion resulting is intensified by the fact that few, if 
 any, jurisdictions can be found in which the decisions of the courts 
 of last resort can be entirely reconciled upon this important question. 
 A careful examination of the cases leads us to the conclusion that 
 much of the apparent conflict in the decisions of any particular State 
 is due to the fact that the Courts, in deciding individual causes, have 
 sometimes relied upon the authority of decisions of Courts holding 
 a different view of the law as to burden of proof; such differences not 
 appearing on the- face of the opinions, but lurking in the principle upon 
 which they are based. The two classes of decisions, and the reasons 
 by which they are respectively supported, are essentially antagonistic. 
 They start from different premises, and logically arrive at different 
 results, and therefor the citation of one to support the other generally 
 leads to confusion. Mr. Beach, who undertakes to defend the rule 
 imposing the burden on the plaintiff, asserts that it is supported by 
 'the decided weight of authority,' and declares it to be the doctrine 
 in Massachusetts, Maine, Mississippi, Louisiana, North Carolina, Michi- 
 
 3 — ^Compare the authorities cited in W., S 2506. 
 
728 BURDEN OF PROOF, AND PRESUMPTIONS. No. 623. 
 
 gan, Oregon, Illinois, Connecticut, Iowa, Indiana, and probably New 
 York, but candidly admits that the contrary is the settled rule in Eng- 
 land, the supreme court of the United States, Alabama, California, 
 Georgia, Kentucky, Kansas, Maryland, Minnesota, Missouri, New 
 Hampshire, New Jersey, Nebraska, Ohio, Pennsylvania, Rhode Island, 
 South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colo- 
 rado, and is the opinion of the text writers. ... 
 
 "The rule seems to be well settled, that it is not necessary for the 
 plaintiff in his petition to negative, either by facts stated or by ex- 
 press averment, the existence of contributory negligence on his part. 
 . . . We have been able to find no case where such pleading has been 
 required, except in a few of those states where the burden of proof 
 is upon plaintiff to show that he was not guilty of contributory negli- 
 gence. Since these States have changed the well-established and logical 
 rule of evidence at common law, consistency would seem to require a 
 corresponding change in the rule of pleading; but it seems that only 
 a few of them have so ruled. . . . We are of the opinion that the great 
 ■weight of authority, as well as the reason of the law, is in favor of 
 the rule which imposes the burden of proof upon defendant to estab- 
 lish plaintiff's contributory negligence, and it may be considered the 
 settled law in this State. ... It is not necessary for us to determine 
 here in what class of cases a special plea of contributory negligence 
 is required, but it seems generally to be admissible in many jurisdic- 
 tions under the general denial, even where the burden of proof is on 
 defendant. 
 
 "To the general rule imposing upon the defendant the burden of 
 proof on the issue of contributory negligence there appear to be, in 
 the very nature of things, two well-defined exceptions : First, Where 
 the legal effect of the facts stated in the petition is such as to es- 
 tablish prima facie negligence on the part of plaintiff as a matter of 
 law, then he must plead and prove such other facts as will rebut such 
 legal presumption. The plain reason is that by pleading facts which, 
 as a matter of law, establish his contributory negligence, he has made 
 a prima facie defense to his cause of action which will be accepted 
 as true against him, both on demurrer and as evidence on the trial, 
 unless he pleads and proves such other facts and circumstances that 
 the Court cannot, as a matter of law, hold him guilty of contributory 
 negligence. When he has done this, he has made a case which must 
 be submitted to the jury. For instance, if plaintiff's petition shows 
 that he was injured by defendant's cars while on the track under cir- 
 cumstances which in law would make him a trespasser prima facie, 
 then the law would raise a presumption of contributory negligence 
 against him, for which his petition would be bad on demurrer; and 
 it would be necessary for him to plead some fact or circumstance re- 
 butting such presumption, — such as that he was, after going upon the 
 track, stricken down by some providential cause, — in order to save his 
 petition, and on the trial the burden would be upon him to establish 
 
No. G24. II. SPECIFIC PRESUMPTIONS. T29 
 
 such cause. Second, When the undisputed evidence adduced on the 
 trial establishes //-/wiz/artV as a matter of law contributory neglig6nce 
 on the part of plaintiff, then the burden of proof is upon him to show 
 facts from which the jury upon the whole case may find him free 
 from negligence; otherwise the Court may instruct a verdict for de- 
 fendant, there being no issue of fact for the jury."* 
 
 SCOTT V. LONDON & ST. KATHARINE DOCKS CO. (1865). 
 3 H. &■ C. 596- 
 
 The declaration stated that the defendants were possessed of a ware- 
 house and of a certain crane or machine for lowering goods there- 
 from, and at the time of the grievances committed by them as 
 ""* hereinafter mentioned, they, by their servants in that behalf, 
 were lowering by the said crane or machine from the said warehouse 
 certain bags of sugar on to the ground and stone pavement in the 
 docks of the said Company, and on and along which the plaintiff was 
 then lawfully passing; and the defendants, by their servants, so negli- 
 gently, carelessly and improperly lowered the said bags of sugar and 
 conducted themselves in that behalf, that the same came and fell upon 
 and against the plaintiff: Whereby the plaintiff was greatly wounded, 
 bruised, hurt and permanently injured, &c. Plea, not guilty, and issue 
 thereon. At the trial before Martin, B., at the London Sittings after 
 Trinity Term, 1864, the plaintiff deposed as follows: "I am an officer 
 of the Customs. I am an auxiliary examiner. I superintend weigh- 
 ing goods. On the 19th of January I had performed duty at the East 
 Quay of the London Docks. I was directed to go from the East Quay 
 to the Spirit Quay by Mr. Lilly, the surveyor. I went to the Spirit 
 Quay in order to do duty. I proceeded on my way. ... In passing 
 from one doorway to the other I was felled to the ground by six 
 bags of sugar falling upon me. (He then described the injuries he 
 received.) No one but myself was at the place. I had no warning. 
 There was no fence or barrier. No one called out. I heard the rattling 
 of a chain." At the conclusion of the plamtiff's examination in chief 
 the learned Judge expressed his opinion that, even assuming that the 
 bags of sugar were being dealt with by the servants of the defendants 
 in the course of their employment, and that the plaintiff was lawfully 
 passing through the Docks, there was not sufficient evidence of negli- 
 gence on the part of the defendants to entitle him to leave the case 
 to the jury; and his londship then directed the jury to find a verdict 
 for the defendants. 
 
 Field (^Murphy with him) argued for the defendants: "There was 
 
 4 — Compare the authorities cited in W., § 2507. 
 
730 BURDEN OF PROOF, AND PRESUMPTIONS. No. 624. 
 
 no evidence of negligence which ought to have been submitted to the 
 jury. ... A scintilla of evidence, or a mere surmise that there may 
 have been negligence on the part of the defendants, will not justify a 
 Judge in leaving the case to the jury: Toomey v. The London, Brigh- 
 ton and South Coast Railway Company, 3 C. B. N. S. 146, 150. That 
 doctrine was acted upon in Hammack v. White, 11 C. B. N. S. 588. 
 There Erie, J., in the course of the argument said: T do not assent 
 to the doctrine that mere proof of the accident throws upon the de- 
 fendants the burthen of showing the real cause of the injury. All the 
 cases where the happenings of an accident has been held to be prima 
 facie evidence of negligence have been cases of contract.' [Black- 
 burn, J. : 'The question depends on the nature and character of the 
 accident. If a ship goes down in the sea that is equally as consistent 
 with care as with negligence; but if a ship goes down in a dock, is 
 not the fact of the accident prima facie evidence of negligence.'] 
 There was no evidence of want of reasonable care. The fact of lower- 
 ing the bags is quite as consistent with care as with the absence of it.'' 
 . . . [Blackburn, J. : "There is an old pleading rule, that less par- 
 ticularity is required when the facts lie more in the knowledge of the 
 opposite party than of the party pleading. Applying that here, is not 
 the fact of the accident sufficient evidence to call upon the defendants 
 to prove that there was no negligence?"] 
 
 The Solicitor-General (T Jones with him), for the plaintiff: "It is 
 conceded that where the evidence is as equally consistent with due 
 care as with negligence, there is no case for the jury. It is also con- 
 ceded that it is not enough to show a mere scintilla of evidence. No 
 rule can be laid down that the mere fact of an accident is evidence of 
 negligence; for each case must depend on its own circumstances. . . . 
 The true test is, whether the case is more consistent with negligence 
 than care. Looking at the simple fact that the bags of sugar fell 
 violently upon the plaintiff, this case is more consistent with negligence 
 than care." 
 
 Erle, C. J. : "The majority of the Court have come to the following 
 conclusions: There must be reasonable evidence of negligence. But 
 where the thing is shown to be under the management of the defendant 
 or his servants, and the accident is such as in the ordinary course of 
 things does not happen if those who have the management use proper 
 care, it affords reasonable evidence, in the absence of explanation by 
 the defendants, that the accident arose from want of care. We all 
 assent to the principles laid down in the cases cited for the defendants; 
 but the judgment turns on the construction to be put on the Judge's 
 notes. As my brother Mellor and myself read them we cannot find that 
 reasonable evidence of negligence which has been apparent to the rest 
 of the Court.'"' 
 
 S — Compare the authorities cited in W., § 2508. 
 
No. 625. II. SPECIFIC PRESUMPTIONS. 731 
 
 STATE V. BRADY (1902). 
 — la. — , pi N. W. 801. 
 
 Weaver, J.: "The evidence for the state tended to show that on 
 the night of September 29, 1900, the barn of one Stuart, situated several 
 miles east of the city of Des Moines, was unlawfully broken and 
 entered, and certain harness. stolen therefrom; that on said night 
 defendant v;as seen upon the public highway in that neighborhood; 
 that about ten days thereafter the stolen property, or some of it, was 
 found in his possession ; and that he made some statements or admis- 
 sions serving to strengthen the suspicion of his guilt. The defendant 
 denied his guilt, and offered considerable evidence tending to prove 
 an alibi, and explained his possession of the harness by the statement 
 that he bought it of a person who brought it to his residence in Des 
 Moines on the morning after the alleged crime, which statement was 
 also corroborated by several witnesses. Among the instructions given 
 by the Court to the jury are the following: . . . '(8) So, too, the pos- 
 session of property that has been recently stolen from a building by 
 means of breaking and entering said building is sufficient to raise a 
 presumption of guilt of the person in whose possession said property 
 is found; that is, it creates the presumption that he is the party that 
 broke and entered said building, and took therefrom the said property, 
 tmless the attending circumstances or evidence explains said possession, 
 and shows that the same may have been otherwise honestly ac- 
 quired. . . .' 
 
 "As to the effect to be given in prosecutions for burglary to proof 
 of possession of goods stolen in connection with the breaking and en- 
 tering, the authorities are not entirely in harmony. There are decisions 
 which hold without qualification that the fact of possession of property 
 recently stolen, under such circumstances has no tendency to prove the 
 possessor's guilt of the burglary. And, on the other hand, there seem 
 to be cases which hold that such fact alone creates a sufficient pre- 
 sumption of guilt to justify conviction of the accused. The rule, how- 
 ever, which is recognized by the great weight of authority, and most 
 commends itself to our sense of reason and justice, adopts neither of 
 the extremes mentioned, and may be stated as follows; There is no 
 presumption of guilt of burglary attaching to the mere possession of 
 the stolen goods by the accused, but such fact, if the alleged crime be 
 of recent occurrence, has a tendency to prove his guilt, and^ if there 
 be other proved circumstances tending to connect him with the com- 
 mission of the offense, the fact of possession, thus aided, will sustain 
 a conviction. . . . Under the rule thus established, the instruction in 
 the present case that the possession of the goods by the appellant 
 'creates the presumption that he is the party who broke and entered 
 the building' was error. 
 
732 BURDEN OF PROOF, AND PRESUMPTIONS. No. 625. 
 
 "The use of the terms 'presumption of guilt' and 'prima facie evi- 
 dence of guilt' with reference to the possession of stolen goods has 
 perhaps been too long indulged in by Courts and text-writers to be 
 condemned, but we cannot resist the conclusion that, when so em- 
 ployed, these expressions are unfortunate, and often misleading. In a 
 civil proceeding, when a plaintiff makes a prima facie case, the burden 
 is shifted, and, in the absence of any countershowing, he is entitled 
 to recover as a matter of law. This rule is understood by the average 
 intelligent layman as well as by those learned in the law; and when, 
 in a criminal case, an instruction is given that the showing of a 
 specific fact is prima facie evidence of guilt, jurors may very naturally 
 conclude that the establishment of such fact has the effect to cast upon 
 defendant the burden of proving his innocence of the charge against 
 him. . . . 'Presumptions' of guilt and 'prima facie' cases of guilt in 
 the trial of a party charged with crime mean no more than that from 
 the proof of certain facts the jury will be warranted in convicting the 
 accused of the offense with which he is charged."" 
 
 DAVIE V. BRIGGS (1878). 
 97 U. S. 628, 633. 
 
 Harlan, J.: "The appellants, as the heirs-at-law of Alhn Jones 
 Davie, deceased, assert an interest in the proceeds of a sale which took 
 place in June, 1853, of a tract of land in Guilford County, North 
 ^"^ Carolina, known many years ago as the McCulloch gold-mine. 
 Whether the defence, so far as it rests upon the Statute of Limitations 
 of North Carolina, can be sustained, [against a suit begun in July, 1874,] 
 depends upon the evidence as to the time when Allen Jones Davie died. 
 The learned counsel for appellants insist that, consistently with the 
 legal presumption of death after the expiration of seven years, without 
 
 6 — Compare the following phrasings; Blackburn, J.: "I should have said that 
 
 i?. V. Cockin, 2 Lew Cr, C. 235 (1836).^ recent possession was evidence either of 
 
 Sacks stolen in February were found in stealing or receiving according to cri- 
 
 the defendant's possession some twenty cumstances. . . . When it has been shown 
 
 days after; Coleridge, J.: "If I was that property has been stolen and has 
 
 now to lose my watch, and in a few min- been found recently after its loss in the 
 
 utes it was to be found on the person possession of the prisoner, he is called 
 
 of one of you, it would afford the strong- upon to account for having it, and, on 
 
 est ground for presuming that you had his failing to do so, the jury may very 
 
 stolen it. But if a month hence it were well infer that his possession was dis- 
 
 to be found in your possession, the pre- honest, and that he was either the thief 
 
 sumption of your having stolen it would or the receiver, according to the circum- 
 
 be greatly weakened; because stolen stances." 
 
 property usually passes thrtugh many Compare the authorities cited in W. § 
 
 hands." 2513; and the doctrine of No. 32, ante. 
 
 R. v. Langmead, Leigh & C. 427 (1864) : 
 
No. 626. II. SPECIFIC PRESUMPTIONS. 733 
 
 Allen Jones Davie being heard from by his family and neighbors, the 
 date of such death should not be fixed earlier than the year 1858. In 
 that view, — excluding from the computation of time the war and re- 
 construction period between Sept. i, 1861, and Jan. i, 1870, as required 
 by the statutes of North Carolina (Johnson v. Winslow, 63 N. C. 552), 
 — the suit, it is contended, would not be barred by limitation. 
 
 "The general rule undoubtedly is, that 'a person shown not to have 
 been heard of for seven years by those (if any) who, if he had been 
 alive, would naturally have heard of him, is presumed to be dead, 
 unless the circumstances of the case are such as to account for his not 
 being heard of without assuming his death.' Stephen, Law of Evid., 
 c. 14, art. 99; I Greenl. Evid., sect. 41; i Taylor, Evid., sect. 157, and 
 authorities cited by each author. But that presumption is not conclu- 
 sive, nor is it to be rigidly observed without regard to accompanying 
 circumstances which may show that death in fact occurred within the 
 seven years. If it appears in evidence that the absent person, within 
 the seven years, encountered some specific peril, or within that period 
 came within the range of some impending or immediate danger, which 
 might reasonably be expected to destroy life, the Court or jury may 
 infer that life ceased before the expiration of the seven years. Mr. 
 Taylor, in the first volume of his Treatise on the Law of Evidence 
 (sect. 157), says, that 'although a person who has not been heard of 
 for seven years is presumed to be dead, the law raises no presumption 
 as to the time of his death; and, therefore, if any one has to establish 
 the precise period during those seven years at which such person died, 
 he must do so by evidence, and can neither rely, on the one hand, on 
 the presumption of death, nor, on the other, upon the presumption of 
 the continuance of life.' These views are in harmony with the settled 
 law of the English courts. . . . 
 
 "We therefore follow the established law when we inquire whether, 
 according to the evidence, Allen Jones Davie died at an earlier date 
 than at the end or expiration of the seven years when the legal pre- 
 sumption of his death arose. It seems to us that, upon the showing 
 made by the complainants th";mselves, the conclusion is inevitable that 
 he died some time during the year i8f I. ... In view of this evidence, 
 we cannot accept as absolutely controlling the legal presumption which, 
 in regard to Allen J. Davie's death, arose at the expiration of seven 
 years from the time when he was last heard from. We cannot deter- 
 mine the rights of the parties upon the hypothesis that his death oc- 
 curred in the year 1858, when the appellants themselves and their chief 
 witnesses not only unite in declaring their belief that he died in 1851, 
 but state facts which fully justify that belief. Concluding then, as we 
 must, that he died in the year 1851, it seems clear that the claim set 
 up in the bill to an interest in the proceeds of the sale of June, 1853, is 
 barred by the limitation of three years prescribed by the North Caro- 
 lina statute." 
 
734 LAW AND FACT. No. 627. 
 
 BOOK III. 
 
 TO WHOM EVIDENCE MUST BE PRESENTED. 
 
 (LAW AND FACT; JUDGE AND' JURiY). 
 
 BARTLETT v SMITH (1843). 
 II M. &■ W. 4S^s- 
 
 Assumpsit by the endorsee against the drawer of a bill of exchange. 
 The declaration stated, that the defendants, on, &c., made their certain 
 bill of exchange in writing, and directed the same to Mr. John 
 ' E. Butcher, Dublin, and thereby required the said J. E. Butcher 
 to pay to the order of the defendants, in London, the sum of £17. It 
 then alleged the endorsement of the bill to the plaintiffs. The de- 
 fendant, by his pleas, denied the drawing and endorsement. At the 
 trial before the Undersheriff of Middlesex, the bill, when produced, 
 appeared to be drawn in Dublin, payable in London, and was stamped 
 as a foreign bill. On the plaintiff's counsel proposing to read it in evi- 
 dence, the defendant's counsel objected, on the ground that, although 
 the bill purported to be drawn in Dublin, it was in fact drawn in 
 London, and being therefore an inland bill, required a higher stamp; 
 and proposed to give evidence of that fact. The Undersheriff how- 
 ever said, that as the bill was not objectionable on the face of it, he 
 should allow the case to proceed- on which the defendant's counsel 
 addressed the jury, and afterwards adduced evidence to show that at 
 the time the bill bore date, the drawer was in London : whereupon 
 the Undersheriff left it to the jury to say whether the bill was drawn 
 in London or Dublin, but reserved leave to the defendants to move to 
 enter a nonsuit if this Court should think he ought to have received 
 the evidence in the first instance, and to have decided upon it. . . . 
 
 Lord Abinger, C. B. : "I am of opinion that this rule must be made 
 absolute for a new trial, but no to enter a nonsuit. All questions re- 
 specting the admissibility of evidence are to be determined by the judge, 
 who ought to receive that evidence, and decide upon it without any 
 reference to the jury. In all cases where an objection is made to the 
 competency of witnesses, any evidence to show their incompetency 
 must be received by the judgfo, and adjudicated on by him alone. So, 
 in the present case, evidence offered to impeach the admissibility of 
 the bill, on the ground that it was improperly stamped, should have 
 been received by the judge, and determined by him before the bill was 
 allowed to be read to the jury. When the objection was made that the 
 bill bore a wrong stamp, the Undersheriff ought to have received the 
 evidence to impeach it, before he allowed the bill to be read; and it 
 
No. 628. LAW AND FACT. 735 
 
 was for him to say whether the evidence adduced for the purpose was 
 such as to satisfy him or not. The evidence tendered was for the pur- 
 pose of showing that the bill ought not to be 'read at all; and if the 
 Undersherifl rejected it in the first instance, he ought not to have re- 
 ceived it afterwards and submitted it to the jury. There ought, there- 
 fore, to be a new trial." 
 
 Parke, B. : "I am of the same opinion. All preliminary matters of 
 this kind are to be determined by the judge, not by the jury. I well 
 recollect the case of Major Campbell, who was indicted for murder 
 in Ireland; and on a dying declaration being tendered in evidence, the 
 judge left it to the jury to say whether the deceased knew, when he 
 made it, that he was at the point of death. The question as to the 
 propriety of the course adopted in that case was sent over for the 
 ■opinion of the English judges, who returned for answer that the course 
 taken was not the right one, and that the judge ought to have decided 
 the question himself."'^ 
 
 COMMONWEALTH v. ROBINSON (1888). 
 146 Mass. 5^1, 16 N. E. 452. 
 
 The facts of this case have been already stated in No. 48. 
 
 C. Allen, J. : "... In seeking a new trial on account of the ad- 
 mission of this testimony, the argument of the prisoner's counsel, 
 ""' briefly stated, is as follows: Preliminary evidence must be 
 given to show that the acts offered to be proved were done in pur- 
 suance and as a part of some plan or scheme to accomplish the par- 
 ticular result; it is the exclusive province of the Court to determine 
 if such evidence is sufficient; the decision of the Court, admitting the 
 evidence, is subject to revision in the present case, the testimony upon 
 which that decision was founded having been reported for the pur- 
 pose; it is not enough that there was some evidence, but the pre- 
 liminary evidence must amount to proof; the ruling of the Court did 
 not expressly affirm the ne.:essity of such proof, that is, as we under- 
 stand the argument, the necessity of such amount or degree of proof; 
 and finally, this Court, upon a revision of the preliminary evidence 
 reported, should now hold that it was not sufficient to warrant the in- 
 troduction of evidence to show that the prisoner poisoned her sister, 
 Mrs. Freeman. The last three of these propositions are the only ones 
 which need any further attention. 
 
 "A consideration of the nature of the question which is presented 
 
 I — Compare the following phrasing: when presented in the form o£ the pre- 
 
 Bartlett v. Hoyt, 33 N. H. 151, 165 liminary inquiry as to the competency of 
 
 (1856); "Whether a witness is interested witness, may be determined by the Court, 
 
 -upon this or that given state of facts is or, in the exercise of their discretion, by 
 
 a question of law for the Court; whether the jury." 
 
 the facts exist as claimed by one party Compare the authorities cited in W., § 
 
 or the other is a question of fact, which, 2550. 
 
736 JUDGE AND JURY. No. 62S. 
 
 to the Court, when it is called upon to decide upon a preliminary ques- 
 tion of fact, in order to detTmine whether offered evidence shall be 
 received, will show that its determination reaches no further than 
 merely to decide whether the evidence may or may not go to the jury. 
 The decision upon this particular question of the admissibility of the 
 evidence is ordinarily conclusive, unless the judge sees fit to reserve 
 or report the question for future revision. But where, in a case like 
 the present, the admissibility of testimony depends upon the determina- 
 tion of some prior fact by the Court, there is no rule of law that, in 
 order to render the testimony admissible, such prior fact must be 
 established by a weight of evidence which will amount to a demonstra- 
 tion, and shut out all doubt or question of its existence. It is only 
 necessary that there should be so much evidence as to make it proper 
 to submit the whole evidence to the jury. 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; it does not affect the burden of proof, 
 or change the duty of the jury in weighing the whole evidence. They 
 must still be satisfied, in a criminal case, upon the whole evidence, be- 
 yond a reasonable doubt. 
 
 "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 question 
 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 pur- 
 pose, and usually without the assistance, at tht stage, of the jury. . . . 
 In all such cases, the Court, in deciding to admit the offered testi- 
 mony, does no more than to hold that enough has been shown to make 
 it proper to submit the testimony to the jury, leaving its weight and 
 credit for their determination. The decision of the judge does not re- 
 lieve the party offering the testimony from the necessity of establishing 
 every material lact to the satisfaction of the jury. In this view of the 
 law, it was not necessary that the Court should find that the prelim- 
 inary evidence amounted to full proof, beyond a reasonable doubt, that 
 the prisoner poisoned her sister in pursuance of a general plan or 
 scheme, in which the poisoning of Mr. Freeman was a later step.'' 
 
 BRIDGES V. NORTH LONDON R. CO. (1874). 
 L. R. 7 H. L. 213. 
 
 Action for damages for negligence in causing the death of the 
 plaintiff's husband. Plea, not guilty. The cause was heard before 
 Mr. Justice Blackburn at the Middlesex Sittings after Michael- 
 " " mas Term, 1869. Mr. Bridges, who resided at Highbury, had 
 been a season ticket-holder on this railway for some time, going daily 
 between that place and Broad Street, the City terminus of the rail- 
 
No. 629. LAW AND FACT. 737 
 
 way. He was fifty-two years of age, and very near sighted. On the 
 20th of January, 1869, he left Broad Street at 6:40 p. m. He was m 
 the last passenger carriage of the train, the very last carriage being 
 the guard's compartment. The train arrived at Highbury at a few 
 minutes before 7 o'clock. The tunnel was filled with steam, the night 
 being damp. The station at Highbury appeared, from the statement 
 in the case prepared for the Exchequer Chamber, to be thus formed: 
 Approaching the station from London there is a tunnel about 150 feet 
 in length ; there is a slope, on which was lying a heap of hard rubbish, 
 and then a platform, which is, in fact, a continuation of the station 
 platform, but is narrower, and is within the tunnel. After getting 
 through the tunnel there is the proper station platform. The station 
 is lighted. There is a lamp at the station end of the tunnel, but none 
 within the tunnel itself. On this occasion the train only partially 
 came up to the station platform, the last two carriages being within 
 the tunnel. The last but one stopped opposite the narrow end of the 
 platform; the last, in which Mr. Bridges was riding, was opposite the 
 heap of hard rubbish. A passenger (afterwards called as a witness 
 at the trial), who was in the last carriage but one, heard the name of 
 the station called out in the usual way and got out; he alighted on 
 the narrow platform; "after he got out he heard the warning, 'Keep 
 your seats,' after which the train moved on to the station. The wit- 
 ness hearing a groan, proceeded farther back into the tunnel, and 
 found the deceased lying with his legs across the rails, between the 
 wheels of the carriage, and his body on the rubbish. The wheels had 
 not touched his legs or body. He was lying about ten feet from the 
 end of the slope, and farther within the tunnel." His leg was broken, 
 and he had received mortal internal injuries from the fall. 
 
 Mr. Justice Blackburn was. of opinion that there was no evidence 
 of negligence on the part of the defendants, and directed a nonsuit; 
 but the jury expressing a strong opinion to the contrary, a verdict 
 was taken for the plaintiff, the jury assessing the damages at £1200. 
 The nonsuit was then entered, but leave was reserved to move to enter 
 the verdict for the plaintiff for the damages thus contingently assessed. 
 A rule was accordingly moved for, and, after argument in the Court 
 of Queen's Bench, was refused. On appeal to the Exchequer Chamber 
 the facts were stated in a case, power being reserved to the judges to 
 draw inferences of fact. The case was heard, and the judgment of the 
 Court below was affirmed by four judges to three. This appeal was 
 then brought. The judges were summoned, and Lord Chief Baron 
 Kelly, Mr. Baron Martin, Mr. Justice Keating, Mr. Justice Brett, 
 Mr Justice Denman, and Mr. Baron Pollock attended. 
 
 Lord Cairns, who presided in the absence of the Lord Chancellor, 
 proposed that the following question should be put to the judges: 
 Whether in the facts stated in the special case, and having regard to 
 the liberty thereby given to the Court to draw any inference or find 
 any facts from the facts therein stated, there was evidence of negli- 
 
738 JUDGE AND JURY. No. 629. 
 
 gence on the part of the respondents which ought to have been left to 
 the jury? The Lord Chief Baron requested time for the judges to 
 answer the question. 
 
 Mr. Baron Pollock: "My answer to your Lordships' question is 
 in the affirmative. [After having stated the facts of the case,] . . . 
 The general rule which prescribes the duty of the judge presiding at 
 Nisi Prius, when the question is raised whether, at the close of the 
 plaintiff's case, there is evidence which ought to be left to a jury, is 
 laid down in the judgment of the Court of Exchequer Chamber in. 
 Ryder v. Wombwell, Law Rep. 4 Ex. 32, 38, where the question being 
 whether articles supplied by the plaintiff to the defendant, who was an 
 infant, were 'necessaries,' the Court said: 'The first question is, 
 whether there was any evidence to go to the jury that either of the 
 above articles was of that description? Such a question is one of 
 mixed law and fact; in so far as it is a question of fact it must be de- 
 termined by a jury, subject no doubt to the control of the Court, who 
 may set aside the verdict and submit the question to the decision of 
 another jury; but there is in every case, not merely in those arising 
 on a plea of infancy, a preliminary question which is one of law, 
 namely, whether there is any evidence on which the jury could properly 
 find the question for the party on whom the onus of proof lies. If 
 there is not, the judge ought to withdraw the question from the jury 
 and direct a nonsuit if the onus is on the plaintiff, or direct a verdict 
 for the plaintiff if the onus is on the defendant.' This is a clear ex- 
 position of the rule, and it has been generally acquiesced in and acted 
 upon, and it follows from it that although the question of negligence 
 or no negligence is usually one of pure fact, and therefore for the 
 jury, it is the duty of the judge to keep in view a distinct legal defini- 
 tion of negligence as applicable to the particular case ; and if the facts 
 proved by the plaintiff do not, whatever view can be reasonably taken 
 of them, or inference drawn from them by the jurors, present an 
 hypothesis which comes within that legal definition, then to withdraw 
 them from their consideration. 
 
 "I commence, therefore, by considering what was the duty of the 
 defendants towards their passengers upon the occasion in question, the 
 non-observance of which would constitute negligence. . . . [Here the 
 learned judge examined the facts and the possible inferences in detail, 
 and continued :] 
 
 "The plaintiff no doubt is bound to make out her case, and cannot 
 by a bare suggestion challenge its rebuttal, and if what I have stated 
 was all mere speculation, it ought not to have gone to the jury. But 
 if it was an inference which could be fairly drawn from the facts 
 proved in the same manner as things unseen or unproved — which in 
 the eye of the law are the same — are constantly inferred and found 
 as facts by a jury, then the evidence should have been submitted to 
 the jury, together with any which the defendants chose to adduce, and 
 which might have exculpated or further inculpated them according 
 
No. 630. LAW AND FACT. 739 
 
 as their witnesses knew more of the occurrence, and confirmed or dis- 
 placed the evidence for the plaintiff."^ 
 
 STATE V. MOSES (1830). 
 2 Dev. 452, 458. 
 
 Indictment for murder by shooting. The counsel for the prisoner 
 placed his defence upon the total want of credibility in the witnesses 
 for the prosecution. It was argued, first, that the testimony of the 
 """ principal witness was not credible from its absurdity, for how could 
 a man in a dark night, at the distance of ten steps, see another pull the 
 trigger of a gun. . . . His honor, in his charge to the jury, informed 
 then that the credit they would give to the testimony was a matter 
 exclusively with them, and proceeded to suggest such circumstances 
 as, in his opinion, might be considered by them as tending to shake or 
 support the credit of the witness for the State, and leaving it also to 
 them to give such weight to any other circumstances, which they might 
 remember and the Judge should omit, as they thought proper. In 
 speaking of the first objection, the j Judge said, that a man might see 
 by the flash of a gun, even in the night and probably the darker the 
 night the more distinctly; and if they believed from the testimony, 
 that was the case in the present instance, and that seeing a man in the 
 attitude of shooting, with his hand upon the trigger, and even by the 
 flash of the gun, was substantially seeing him pull the trigger ; and that 
 if this was the fact in the particular .case, then the contradiction relied 
 upon in the testimony of the witness did not exist. . . . The jury re- 
 turned a verdict of guilty, upon which, the counsel for the prisoner 
 obtained a rule for a new trial, for misdirection. . . . 
 
 RuFFiN, J.: "The Act of 1796, (Rev. c. 452,) 'to direct the con- 
 duct of Judges in charges to the petit jury,' restrains the judge from 
 giving an opinion whether a fact is fully or sufficiently proved. At the 
 same time, it imposes another duty; which is, to state, in a full and 
 explicit manner, the facts given in evidence, and declare and explain 
 the law arising thereon. . . . An unfair and partial exhibition of the 
 testimony can alone be complained of; and the apprehension of that 
 seems to have induced the passage of the law under consideration. It 
 is not for us to say, whether that apprehension was well or ill founded; 
 or whether the administration of the law would not be more certain, 
 its tribunals more revered, and the suitors better satisfied, if the 
 Judge were required to submit his view upon the whole case, and after 
 the able and ingenious, but interested and partial arguments of Coun- 
 sel, to follow with his own calm, discreet, sensible and impartial sum- 
 mary of the case, including both law and fact. Such elucidations from 
 
 I — Compare the doctrine of No. 2, ante; and the authorities cited in W., § 2552. 
 
740 JUDGE AND JURY. No. 630. 
 
 an upright, learned and discreet magistrate, habituated to the investiga- 
 tion of complicated masses of testimony, often contradictory, and often 
 apparently so but really reconcilable, would be of infinite utility to a 
 conscientious jury in arriving at just conclusions — not by force of the 
 Judge's opinion, but of the reasons on which it was founded, and on 
 which the jury would still have to pass. If this duty were imposed on 
 the Judge, it is not to be questioned, that success would, oftener than 
 it does, depend on the justice of the case, rather than the ability or 
 adroitness of the advocate. 
 
 "But such is certainly neither the duty nor within the competency 
 of our Judges. I have already mentioned that it would be difficult for 
 a Judge, surrounded by all the circumstances, to determine exactly 
 what is his duty in this respect, in law and his own conscience. With 
 still less certainty can a revising court lay down any rules a priori, or 
 even apply them, after they are prescribed to cases as they arise. So 
 much of the meaning of wQrds depends upon their context, and of 
 words spoken, upon the tone, emphasis, temper, and manner of the 
 speaker, that it is utterly impossible that the whole can be transferred 
 to paper, so as to enable an appellate tribunal to pass in general upon 
 cases, without imminent hazard of doing injustice to the parties, and 
 casting unmerited reproach upon the intentions of the Judge, and the 
 understanding of the jury. If I were to lay down a rule as growing 
 out of this Act of Assembly, I would say, that it was in general this : 
 That the weight of the evidence is for the jury; they hold the scales 
 for that. But the nature, relevancy and tendency of the evidence, it 
 is competent for the Judge and his duty to explain. He is not only to 
 recapitulate the testimony, but to show what it tends to prove, and 
 he may recapitulate it in such order and connexion, as to give it the 
 effect of proving the fact sought for, if in itself it be sufficient for 
 that purpose. Whether it be sufficient, it is the province of the jury 
 to determine, and by this statute it is their exclusive province; and 
 the Judge cannot give his opinion in aid of theirs, that it is, or is not 
 sufficient. . . . 
 
 "To apply these observations to the case before us: It is objected 
 here, that the Court below assumed the power of expressing an opinion 
 upon the facts, or expressed such forced inferences from the testimony, 
 as might bias the minds of the jury. The facts to which those parts 
 of the charge apply, where the credit due to several witnesses. The 
 main fact in dispute, on which the issue was joined, was the guilt or 
 innocence of the prisoner. This depended upon the subordinate facts 
 of the veracity or falsehood of the tales of the witnesses. Now this 
 last fact — of credibility, or the want of it — rested again upon other 
 facts which tended to sap or sustain it. . . . In charging the jury, the 
 judge is not obliged to confine himself to delivering the abstract rule, 
 that a witness does impair his credit by refusing to give full evidence; 
 but may, and ought also to call the attention of the jury to the specific 
 misbehavior before their own eyes, a fact in evidence to him and them. 
 
No. 631. LAW AND FACT. 741 
 
 Again, if the credit of one witness is assailed upon the ground that he 
 is contradicted by two others, is the Court barely to inform the jury, 
 that if such contradiction exist, it may impair the credit of the first 
 •witness, but that they have the right in law to reconcile the testimony, 
 and then act on it ? Or may he not mention to them the circumstances, 
 and show how they are contradictory, or how reconcilable, leaving it 
 to the jury, to say, whether in truth, the two tales do, or do not 
 stand together, according to the parts of the transaction to which they 
 relate, or to the meaning of the witnesses ? Such a course as this 
 last, seems to me to be right, useful and lawful. . . . 
 
 "In like manner, the other exceptions are readily disposed of, with- 
 out my going through them in detail. The whole are regarded as 
 mere suggestions by the Judge to the jury, o' the construction of which 
 the words of the witnesses are susceptible, or the inferences which 
 could be deduced from admitted or hypothetical facts; in each case 
 leaving it to the jury to say, what was the true construction, or the true 
 inference. I think this is the legitimate province of a Judge, within 
 the statute under consideration. If I err, the charge of the Judge 
 is an empty pageant, and ceremonial mockery, which may serve for the 
 amusement of the crowd, but instead of aiding the jury, by rescuing 
 the case from, the false glosses of powerful advocates, and the mis- 
 conception of the evidence, as applicable to the legal controversy, will 
 but confound the jury, and still further obscure the truth."'' 
 
 COMMONWEALTH v. PORTER (1846). 
 10 Mete. 263. 
 
 Shaw, C. J.: "This case comes before the Court upon a bill of 
 exceptions, and the question is, whether, in a criminal prosecution 
 against the defendant for an alleged violation of the license 
 ""*■'■ laws, his counsel have a right to address the jury upon the 
 questions of law embraced in the issue. The effect of the argument 
 for the defendant, when analyzed, appears to be this ; that in criminal 
 prosecutions, it is within the legitimate right and proper duty of juries, 
 to adjudicate and decide on questions of law as well as questions of 
 fact; and that although the judge may instruct and direct them upon a 
 question of law, and they fully comprehend and understand those direc- 
 tions, in their application to the facts of the case, yet that they are in- 
 vested by law with a legitimate power and authority, if their judg- 
 ments do not coincide with that of the judge, to disregard it, and de- 
 cide in conformity with their own views of the law. If this were a 
 correct view of the law, it would undoubtedly follow, as a necessary 
 consequence, that in such appeal from the Court to the jury, the counsel 
 on both sides would have a right to argue the questions of law to the 
 
 2 — Compare the following: Vicksburg i (1886); Thayer, Preliminary Treatise 
 R. Co. V. Putnam, 118 U. S. 54s, 7 Sup. on Evidence, 188. 
 
742 JUDGE AND JURY. No .631. 
 
 jury. But if this proposition is not correct, it does not follow, we think, 
 as a necessary consequence, that the counsel cannot address the jury 
 upon the law, under the direction of the court. They are, in our view, 
 separate and distinct questions, to be separately considered. 
 
 "We consider it a well-settled principle and rule, lying at the 
 foundation of jury trial, admitted and recognized ever since jury trial 
 has been adopted as an established and settled mode of proceeding in 
 courts of justice, that it is the proper province and duty of judges to 
 consider and decide all questions of law which arise, and that the 
 responsibility of a correct decision is placed finally on them; that it 
 is the proper province and duty of the jury to weigh and consider evi- 
 dence, and decide all questions of fact, and that the responsibility of a 
 correct decision is placed upon them. And the safety, efficacy, and 
 purity of jury trial depend upon the steady maintenance and practical 
 application of this principle. It would be alike a usurpation of au- 
 thority and violation of duty, for a court, on a jury trial, to decide 
 authoritatively on the questions of fact, and for the jury to decide 
 ultimately and authoritatively upon the questions of law. And the 
 obligations of each are of a like nature, being that of a high legal and 
 moral obligation to the performance of an important duty, enforced and 
 sanctioned by an oath. . . . 
 
 "The whole doctrine of bills of exception, now in such general 
 and familiar use, both in civil and criminal proceedings, is founded 
 upon the same great and leading idea. It presupposes that it is within 
 the authority, and that it is the duty of the judge to instruct and direct 
 the jury authoritatively, upon such questions of law as may seem to 
 him to be material for the jury to understand and apply, in the issue 
 to be tried; and he may also be required so to instruct upon any per- 
 tinent question of law within the issue, upon which either party may re- 
 quest him to instruct. The doctrine also assumes that the jury under- 
 stand and follow such instruction in matter of law. This results from 
 the consideration, that if such instruction be either given or refused, it 
 is the duty of the judge to state it in a bill of exceptions, so that it may 
 be placed on the record; and if the verdict is against the party who 
 took the exception, and it appears, upon a revision of the point of law, 
 that the decision is incorrect, either in giving or refusing such in- 
 struction, the verdict is set aside, as a matter of course. To this con- 
 clusion the law could come, only on the assumption that it was the 
 right and duty of the court to instruct the jury in matter of law, that 
 the jury understood it, and, as a matter of duty, were bound to follow 
 it; so that, if the instruction was wrong, the law assumes, as a neces- 
 sary legal consequence, that the verdict was wrong, and sets it aside. 
 The law could only assume this, upon the strength of the well known 
 and reasonable presumption, that all persons, in the absence of proof to 
 the contrary, do that which it is their duty to do. It is presumed that 
 the jury followed the instruction of the Court in matter of law, because 
 it was their duty so to do, and therefore, if the instruction was wrong. 
 
No. 631. LAW AND FACT. 743 
 
 the verdict is wrong. But if the jury could rightly exercise their own 
 judgment, and decide contrary to the direction of the Court, as they 
 unquestionably may do, in regard to questions of fact, no such pre- 
 sumption would follow; it would be left entirely in doubt, whether the 
 jury had been misled or influenced by the incorrect direction in matter 
 of law, and therefore this would alone be no sufficient ground for setting 
 aside the verdict. - But entirely otherwise it is in regard to a matter of 
 fact, in respect to which it is within the proper authority, and is the 
 duty of the jury to exercise their judgment authoritatively and defi- 
 nitely. And should a judge express or intimate any opinion upon a 
 question of fact, however incorrect it might be afterwards found to be, 
 upon a revision by a higher Court, it would not necessarily afford a 
 ground for a new trial; for, it not being the duty of the jury to follow 
 it, there would be no presumption that they had followed it, and there- 
 fore it would not, of itself, show conclusively that the verdict was 
 wrong. . . . 
 
 "[Furthermore, looking at the essential purposes of a Constitution, 
 and the fundamental rights and principles there guaranteed in solid 
 permanence,] it appears to us that the principle contended for would be 
 adverse to all these objects. If a jury has a legitimate authority to 
 decide upon all questions of law arising in the cases before them, and 
 that contrary to the instruction of the judge, in cases where such di- 
 rection of the judge may be supposed adverse to the views of the law 
 relied on by the accused or his counsel, they would have the same 
 power to decide any question of law, against the opinion and instruction 
 of the judge, when such opinion is in favor of the accused, and find him 
 guilty, where the judge should direct the jury that those facts which 
 the evidence conduces to prove, if proved to their satisfaction, would 
 not warrant a conviction. A case may be supposed, at least for the 
 purpose of illustration, where a high popular excitement should arise 
 and become general, in -which large bodies of persons might come to be 
 actuated by feelings of honest but mistaken indignation against some 
 supposed wrong, and earnest in the pursuit of the supposed interests 
 of philanthropy; or perhaps numbers may be influenced by more base, 
 interested, and vmdictive passions. Under these circumstances, a 
 grand jury, having, as the case supposes, a legitimate and rightful au- 
 thority to decide on questions of law, contrary to the instructions and" 
 charge of the judge, might return an indictment; a traverse jury, in 
 their turn, might convict upon it, though the court before whom it is 
 tried should give them such directions, in point of law, that if they 
 understood and followed them they must acquit the accused. But the 
 case supposes that the law may be rightfully interpreted by a jury which 
 may shift at every trial. What then becomes of the security which 
 every citizen is entitled to, by a steady and uniform, as well as im- 
 partial, interpretation of the laws and administration of justice, by 
 judges as free, impartial and independent as the lot of humanity will 
 admit? . . . 
 
744 JUDGE AND JURY. No. 631. 
 
 " On the whole subject, the views of the Court may be summarily ex- 
 pressed in the following propositions : — 
 
 " That in all criminal cases, it is competent for the jury, if they see 
 fit, to decide upon all questions of fact embraced in the issue, and to 
 refer the law arising thereon to the Court, in the form of a special 
 verdict. 
 
 " But it is optional with the jury thus to return a special verdict or 
 not, and it is within their legitimate province and power to return a 
 general verdict, if they see fit. 
 
 "In thus rendering a general verdict, the jury must necessarily 
 pass upon the whole issue, compounded of the law and of the fact, and 
 they may thus incidentally pass on questions of law. 
 
 "In forming and returning such general verdict, it is within the 
 legitimate authority and power of the jury to decide definitely upon all 
 questions of fact involved in the issue, according to their judgment, 
 upon the force and effect of the competent evidence laid before them ; 
 and if in the progress of the trial, or in the summing up and charge to 
 the jury, the Court should express or intimate any opinion upon any 
 such question of fact, it is within the legitimate province of the jury 
 to revise, reconsider, and decide contrary to such opinion, if, in their 
 judgment, it is not correct and warranted by the evidence. 
 
 " But it is the duty of the Court to instruct the jury on all questions 
 of law which appear to arise in the cause, and also upon all questions, 
 pertinent to the issue, upon which either party may request the direction 
 of the court, upon matters of law. And it is the duty of the jury to 
 receive the law from the Court, and to conform their judgment and 
 decision to such instructions, as far as they understand them, in apply- 
 ing the law to the facts to be found by them ; and it is not within the 
 legitimate province of the jury to revise, reconsider, or decide contrary 
 to such opinion or direction of the Court in matter of law. To this 
 duty jurors are bound by .a strong social and moral obligation, enforced 
 by the sanction of an oath, to the same extent, and in the same manner, 
 as they are conscientiously bound to decide all questions of fact accord- 
 ing to the evidence."* 
 
 HUTCHISON v. BOWKER (1839). 
 5 M. & W. 535, 541. 
 
 Assumpsit for the non-delivery of barley. Plea, non assumpsit. At 
 
 the trial before Lord Abinger, C. B., it appeared that the action was 
 
 brought by the plaintiffs, who were corn merchants and factors 
 
 *^^ at Kirkaldy, in Fifeshire, to recover from the defendants, who 
 
 were corn merchants at Lynn, damages for the non-performance of a 
 
 I — Compare the authorities cited in W., For proof of foreign law, compare No. 
 
 § 2559; and No. 573 <»»*«. and No. 639, 639, post. 
 
 fost. 
 
No. 632. LAW AND FACT. 745 
 
 contract to supply 400 quarters of barley. To prove the contract, the 
 following letters were given in evidence: 
 
 "Lynn, 2ist Nov., 1838. 
 "Messrs. Rt. Hutchison & Co., Kirkaldy. 
 "Gentlemen : 
 
 "In reply to your favor of 17th inst., we beg to offer you a 
 cargo of about 400 qrs. of good barley, weighing S2lbs. per bl., at 34J. 
 per qr. on board. . . . Your most obedient servants, 
 
 "A. & J. BOWKER." 
 
 To this letter the plaintiffs returned the following answer : 
 
 Kirkaldy, 24th Nov., 1838. 
 "Messrs. A. & J. Bowker, Lynn. 
 "Gentlemen : 
 
 "We have your favor of 21st current, offering 4ooqrs. good 
 barley, 52lbs. per bl., at 34s. per qr. f. o. b., payment in full by 
 banker's bill at two months, on receipt of bill of lading and invoice: 
 of such offer we accept, expecting you will give us fine barley and full 
 weight. . . . 
 
 "We remain, gentlemen, 
 
 "Your most obedient servants, 
 
 "RoBT. Hutchison & Co." 
 
 The defendant declined to ship "fine barley." Evidence was given 
 at the trial to show that the phrases "good" barley and "fine'' barley 
 were terms well known in the trade, and that fine barley was the 
 heavier. The jury at first found a verdict for the plaintiffs generally, 
 stating their opinion to be, that "the difference was in weight, and that 
 barley would be fine and good at S2lbs. per bushel." The learned 
 Judge asked them to reconsider the verdict, and answer this question, 
 whether there was a distinction in the corn trade between "good" and 
 "fine"? And they then found that there was a difference between good 
 and fine, but that the parties did not understand each other ; and they re- 
 turned a verdict for the plaintiffs, damages 30A Cresswell having 
 on a former day obtained a rule to show cause why this verdict should 
 not be set aside, and a nonsuit entered. 
 
 Sir F. Pollock (W. H. Watson with him) now showed cause. 
 ". . . The words have either a general or a technical meaning. It was 
 found that the word 'fine' had a technical meaning, and the obscurity 
 is removed by the verdict. The jury thought that on this contract 
 there could be no misunderstarding amongst merchants. It was a 
 question to be left to the jury, what was the meaning of the word 
 'fine' in the contract. [Parke, B. : "You may ask the jury the 
 meaning of the word 'fine' in a mercantile sense, but you cannot go 
 further. The Court is to say what is the njeaning of the contract, and 
 
746 JUDGE AND JURY. No. 632. 
 
 whether there has been an acceptance of it."] ... It is admitted that 
 when the words of a contract are clear and unambiguous, it is for the 
 Court to put a construction upon it; but where the words are either un- 
 intelligible, or have both a popular and a technical meaning, it is for the 
 jury to say whether the words were used in a technical or ordinary 
 sense.'' 
 
 Lord Abinger, C. B. : "It appears to me that the question as to the 
 interpretation of this contract is a question entirely for the Court, and 
 not for the jury. That they should ever be the judges on such a mat- 
 ter was founded on this, that there might be technical words used in a 
 contract, which the jury might understand, and the Court might not; 
 but it would be contrary to all practice to say, after the terms are ex- 
 plained to the satisfaction of the Court, that the jury are to have the 
 interpretation of the contract, and not the Court. ... In this case, if 
 they had said they were satisfied that there was no diiiference in the 
 words, I should then have directed them to find for the plaintiffs; but 
 they told me they were of opinion that there was a difference in the 
 words, but they did not think the contract should be interpreted with 
 reference to that distinction, as the parties did not understand each 
 other. I think that they had no right to assume that. . . . The mean- 
 ing, therefore, being left ambiguous. I am of opinion that this rule 
 ought to be made absolute." 
 
 Parke, B. : "I am of the same opinion. . . . The law I take to be 
 this, — that it is the duty of the Court to construe all written instru- 
 ments; if there are peculiar expressions used in it, which have, in par- 
 ticular places or trades, a known meaning attached to them, it is for the 
 jury to say what the meaning of these expressions was, but for the Court 
 to decide what the meaning of the contract was. It was right, there- 
 fore, to leave it to the jury to say whether there was a peculiar meaning 
 attached to the word 'fine,' in the corn market; and the jury having 
 found what it was, the question, whether there was a complete ac- 
 ceptance by the written documents is a question for the judge."^ 
 
 COMMONWEALTH v. ANTHES (1855). 
 5 Gray 185. 
 
 Indictment on St. 1855, c. 215, § 17, for being a common seller of 
 
 spirituous and intoxicating liquors. Trial and conviction in the Court 
 
 of Common Pleas of October term 1855, before Sanger, J., who 
 
 ®"* signed the following bill of exceptions: "During the trial the 
 
 defendant's counsel moved the court to instruct the jury: — ist That 
 
 z — Compare the following phrasings: than one occasion, the question what the 
 
 Gassett v. Glazier, 165 Mass. 473, 43 contract was, if controverted, must usu- 
 
 N. E. 193 (1896): "Where a contract ally be tried by the jury as 4 question of 
 
 is to be gathered from talk between the fact." Rankin v. Fidelity Ins, T. & S. D. 
 
 parties, and especially from talk on more Co., 189 U. S. 242, 23 Sup. 553 (1903): 
 
No. 633. LAW AND FACT. 747 
 
 the law is unconstitutional and void. 2d. That the jury have a right 
 to judge of the constitutionality of the law. 3d. That if the jury 
 do so judge, and have a reasonable doubt whether the law be con- 
 stitutional or not, they must acquit the prisoner. 
 
 "The court declined so to instruct the jury, but did instruct them 
 that the law is constitutional, and that under the provisions of chapter 
 152 of the statutes of 1855, entitled an act concerning the duties and 
 Tights of jurors, although the jury might judge of the meaning ot a 
 law, they had not the right to judge of its constitutionality." The 
 decision was made at Boston on the 27th of August, 1857. 
 
 Shaw, C. J.: "... I desire however to refer to one subject, that of 
 libel, which in some quarters seems to have been regarded as settling 
 the question, that in all criminal cases juries may rightfully adjudicate 
 upon the law, as well as the fact; but it seems to me so manifestly to 
 lead to the opposite conclusion, and to involve a discussion of the true 
 principle on which jury trial is placed by the common law, that, at the 
 risk of appearing tedious, I wish to state it fully enough to make it 
 intelligible. 
 
 "This controversy arose in England during a period shortly preceding 
 the American Revolution, respecting the relative powers of courts and 
 juries, in cases of public prosecutions for libel. It arose in times of 
 great party violence and heat, connected itself intimately with the great 
 political contests of the time, and was conducted in the courts of justice, 
 in parliament, and in the country, with a warmth of passion not favor- 
 able to the satisfactory determination of legal principles. But it ap- 
 pears to me that, whether we consider the point upon which the contro- 
 versy turned, the principles assumed and admitted on all sides as the 
 basis of the argument, or the provisions of the Act of Parliament, com- 
 monly known as Mr. Fox's bill, by which it was terminated, they do 
 not impugn the great principle of the common law, that to questions of 
 fact the jurors respond, to questions of law the judges. 
 
 "Criminal prosecutions for libel might, by the common law, be by in- 
 dictment or information; but in point of fact they were most usually 
 state prosecutions, commenced by information filed by the attorney or 
 solicitor general, ex oiHcio, and most frequently for political offences, 
 and therefore were often contested with great bitterness, the political 
 parties actively taking sides, in favor of the crown or of the accused 
 respectively. The controverted question arose in this way: By the 
 theory of the law, language, the meaning, effect, and interpretation of 
 all language, is of legal construction, and must be settled as matter of 
 law by courts. This rule applied to statutes, proclamations, treaties, and 
 other acts of state, and also to private contracts of all sorts ; and this, in 
 
 "Although [the question of] the construe- mercial character, 'taken in Connection 
 
 tion of written instruments is one for the with other facts and circumstances, it is 
 
 Court, [yet] where the case turns upon one which is properly referred to a jury." 
 -the proper conclusions to be drawn from Compare the authorities cited in W., 
 
 a series of letters, particularly of a com- § 2556. 
 
748 JUDGE AND JURY. No. 633. 
 
 theory, was considered as applicable to publications charged to be libel- 
 lous. But it is obvious that the same language may have a different 
 meaning, according to the thing referred to, from existing facts or exter- 
 nal circumstances, not apparent in the written or printed publication it- 
 self. To meet this view, the rules of pleading strictly required that the 
 indictment or information should set out the matter charged to be libel- 
 lous, in hcec verba. If the words should be charged to have any peculiar 
 meaning beyond their ordinary sense, by reason of any fact, then such 
 fact is to be distinctly averred, with time and place, so that it may be 
 put in issue and tried. If it was relied on that such words were writ- 
 ten or spoken in connection with such fact or circumstance, it must be 
 stated, in terms, that they were written or spoken 'of and concerning' 
 such facts, ordinarily styled the colloquium, adding in all suitable places 
 innuendoes, pointing the meaning of the words to the particular per- 
 sons or things to which it is intended to charge that they did apply. 
 
 "Now the theory of those judges who held that the jury were only to 
 find the fact of publication, and the truth of the averments, colloquial 
 and innuendoes, was this; that when the words of the alleged libel are 
 exactly copied, and all the circumstances and incidents which can affect 
 their meaning are stated on the record, inasmuch as the construction 
 and interpretation of language, when thus explained, is for the Court, 
 the question of the legal character of such libel, whether seditious or 
 obscene, whether it illegally slanders the living, or blackens the mem- 
 ory of any one deceased, would be placed on the record, and therefore, 
 as a question of law, would be open after verdict, on a motion in arrest 
 of judgment. Whatever might be the verdict, if the publication thus 
 spread on the record, with its averments, is not libellous, the court 
 must so declare it. Those who took this side of the question insisted, 
 that if the publication was per se libellous, it was unlawful, and the in- 
 nocent intent and purpose of the publisher afforded no excuse, and if li- 
 bellous and illegal, the malicious intent was an inference of law. Those 
 reasoners therefore maintained that a criminal prosecution for libel was 
 peculiar, and distinguishable from all others in this, that, by the form 
 of proceeding, the whole matter was spread upon the record ; that, when 
 the fact of publication and the truth of the averments and innuendoes 
 were established, the whole question of guilty or not, as in case of 
 a special verdict, was a question of law; and they therefore held that 
 it was right to instruct the jury that, if they found these facts true, 
 they ought to return a verdict of guilty, without passing their judgment 
 upon the question of malicious intent or guilty purpose. These views, 
 it was maintained, were supported by a series of respectable authori- 
 ties, nearly or quite uniform, from the English Revolution to the time 
 of this controversy. 
 
 "On the contrary, it was maintained by the popular party, that such 
 a view of the law of libel tended to discourage and repress all free and 
 manly discussion of public affairs, and destroy the just freedom of the 
 press; that whether a publication was libellous or not, depended upon 
 
No. 633, LAW AND FACT. 749 
 
 the justifiable motive, or mischievous intent, with which it was written; 
 that if it was fairly intended to expose and correct the abuses of bad 
 government, or wickedly to weaken and impair the acts of good gov- 
 ernment, that these were questions of fact, depending on many facts 
 of a public nature, which could not be brought upon the record; and 
 that therefore the question whether it was unlawful, malicious, and 
 wicked, false in fact, and not written with good motives and for justifi- 
 able ends, might even depend on the purpose and character of the whole 
 publication, of which the parts selected as libellous are usually extracts 
 only; that these are all facts bearing upon the general question of guilt, 
 and therefore like other facts, on which the guilt of a party accused of 
 crime depends, were to be found by the jury. Some respectable au- 
 thorities could be adduced to show that such had, at times, been the 
 course of eminent judges in instructing the jury. 
 
 "The great struggle on this subject took place in the case of The 
 King V. Dean of St. Asaph, reported most fully in 3 T. R. 428, note. The 
 case was tried before Buller, J., who charged, in summing up, that there 
 were two facts for the consideration of the jury, namely, the fact of the 
 publication, and the truth of the innuendoes. It came before the full 
 court, and was argued in a masterly manner for the defendant by Mr. 
 Erskine, in one of his celebrated speeches. The opinion of the Court 
 was given by Lord Mansfield, who again affirmed the correctness of the 
 ruling, and upon the same grounds, and he cited many authorities to 
 show that this had long been the established practice. Lord Kenyon, 
 a few years later, directed the jury in the same terms, in The King v. 
 Withers, 3 T. R. 428. 
 
 "Thus stood the law, as declared and administered in the highest 
 courts of Great Britain, until this remarkable controversy was terminated 
 by an Act of Parliament, St. 32 G. 3, c. 60, which settled the law for that 
 government. After reciting that doubts had arisen, it declared and 
 enacted that on every such trial, the jury may give a general verdict of 
 guilty or not guilty upon the whole matter put in issue upon the indict- 
 ment or information, and shall not be required or directed by the Court 
 or judge to find the defendant guilty, merely on proof of the publication 
 by the defendant of the paper charged to be a libel, and of the sense 
 ascribed to the same in the indictment or information; that on every 
 such trial, the Court or judge shall, according to their or his discre- 
 tion, give their or his opinion and directions to the jury on the mat- 
 ter in issue, in like manner as in other criminal cases; that nothing in 
 the Act shall be construed to prevent the jury from finding a special 
 verdict, at their discretion, as in other criminal cases ; and in case the 
 jury shall find the defendant guilty, it shall be lawful for him to move 
 in arrest of judgment, on such ground and in such manner as he might 
 have done before the passing of the act. 
 
 "It will be borne in mind that the leading adjudications above cited 
 were made, and this act of parliament was passed, after the separation 
 of the United States from Great Britain, so that they have no authority 
 
750 JUDGE AND JURY. ■• No. 633. 
 
 here as positive law; and they are referred to only as historical evi- 
 dence, showing what the ancient common law of England was when it 
 became the common law of Massachusetts and the other colonies of 
 English origin. It appears to me that the manner in whic^ this contro- 
 versy was conducted, and the ancient authorities which it brought to 
 light, have a significant and direct application in support of the proposi- 
 tion I am endeavoring to maintain. Both parties acted on the assumption 
 that, by the common law, the juries answer to questions of fact, and 
 judges to those of law, and when all the facts appears on the record, 
 it is for the Court only to decide and pronounce the law. 
 
 "Whether, therefore, we consider the rules of the common law, or the 
 constitution and law of this Commonwealth, we are of opinion that it is 
 the proper province and duty of the Court to expound and declare the 
 law, and that it is the proper province and duty of the jury to inquire 
 into the facts by such competent evidence as may be laid before them, 
 according to the rules of law for the investigation of truth, which may 
 be declared to them by the Court, and find, and ultimately decide, on 
 the facts. It may be added that it is the more necessary to adhere to 
 this rule, in the administration of American law, because in these 
 States the government is conducted according to written constitutions, 
 in which the powers even of the Legislature are limited and defined; 
 and it is therefore within the province, and it is made the duty of the 
 judicial department, on proper occasions, to decide, not only what is 
 the true interpretation and legal effect of a legislative enactment, but 
 also whether an act, passed with all the forms of legislation, is within 
 the just limits of legislative power, and therefore whether it is consti- 
 tutional and valid."^ 
 
 I — Compare the authorities cited in W., § 2557. 
 
No. 634. JUDICIAL NOTICE. 751 
 
 BOOK IV. 
 
 OF WHAT PROPOSITIONS NO EVIDENCE 
 NEED BE PRESENTED. 
 
 TITLE I. 
 JUDICIAL NOTICE. 
 
 Year-Book, 7 H. IV, 41, pi. 5 ( 1406) : In arguing a question as 
 to the duty of the Court not to have rendered a certain judgment, 
 counsel put this case: "Sir, let us put the case that one man 
 *"* kills another in your presence, you observing it, and another 
 who is not guilty is indicted before you and is found guilty so as to 
 incur the penalty of death; you ought to respite the judgment against 
 him, for you are knowing to the contrary, and should make further 
 report to the King, to give him pardon. No more should you give 
 judgment in this case, before causing those to appear by whose hands 
 the King was paid." Gascoigne, C. J. : "Once the King himself asjced 
 of me the very case that you have put, and asked me what was the 
 law, and I told him just as you say it, and he was well pleased that the 
 law was so." 
 
 In Sir John Fenwick's Trial, before the House of Commons, 13 
 How. St. Tr. 663, 667 (1696), Mr. Hawles, Solicitor-General, on Mr. 
 Newport having cited the above story of Gascoigne, replied: "It is 
 said, though a judge do think in his conscience a person guilty, yet he 
 ought not to make use of that private knowledge; and a case was 
 quoted out of Henry IV. But I think that judge might have behaved 
 himself something better than he did; and sure I am, now he would 
 be blamed. I do not say that a judge upon his private knowledge ought 
 to judge; he ought not. But if a judge knows anything whereby the 
 prisoner might be convicted or acquitted (not generally known), then 
 I do say he ought to be called from the place where he sate, and go 
 to the bar and give evidence of his knowledge ; and so the judge in 
 Henry IV's time 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." 
 
752 JUDICIAL, NOTICE. No. 635. 
 
 FOX V. STATE (1851). 
 9 Ga. 373. 
 
 At the July Term, 1850, of Bibb Superior Court, John Fox was 
 placed on his trial for larceny from the house. The defendant moved 
 for a continuance for the absence of a witness, William Robards, 
 who resided in Decatur County. On the showing for a continu- 
 ance, it appeared that the witness had been recognized at the last term 
 of the Court to appear and testify in the cause for the defendant. The 
 defendant stated that he expected to prove by the witness, Robards, 
 that he (witness) heard one Simpson, upon whose testimony the de- 
 fendant understood the State would mainly rely for conviction, say 
 "that if hard swearing would send the defendant to the penitentiary, 
 that he should go." . . . Robards was confined in jail at the time of 
 the conversation, charged with stealing a horse and buggy. . . . The 
 motion to continue was overruled by the Court, and the trial ordered 
 to progress. The Jury returned a verdict of guilty. Whereupon, 
 counsel for defendant moved the Court for a new trial, on the ground 
 that the Court erred in refusing to grant the continuance. The Court 
 overruled the motion for a new trial, and remarked "that in overruling 
 the defendant's showing for a continuance, he did not place much con- 
 fidence in the truth of the defendant's statements — ^knowing, as he had, 
 for many years, the witness, Simpson, whose testimony was sought to 
 be assailed, and having no special reason to confide in the integrity 
 of Fox, he thought if a witness intended to act out the corruption 
 ascribed to Simpson, he would not be likely to declare his intentions 
 in advance in the presence of others, and the facts disclosed on the 
 trial left his preconceived opinions of the integrity of Fo..^ unchanged." 
 Counsel for the defendant excepted. 
 
 NisBET, J. : "The new trial ought to have been granted, because 
 there was error in not allowing the continuance. . . . All proper dili- 
 gence was used to have the witness at the trial. It is clear that the 
 showing for a continuance was complete. 
 
 "Why, then, was it not granted? It appears from the record before 
 me, that the presiding Judge gave as reasons for refusing the new 
 trial, that he did not place much confidence in the truth of the defend- 
 ant's statements. . . . They are not only not sufficient, but develop a 
 ground of action in such cases not warranted by the law. . . . There 
 was, as we have seen, no legal objection to the showing for a con- 
 tinuance. Can the Court, when the showing is sufficient, refuse it 
 on account of his personal knowledge of the character of the party 
 making it, and of the witness whose testimony that party is seeking 
 to assail — a knowledge not drawn from evidence before the Court, but 
 from his private sources of information? He, beyond all controversy, 
 cannot. He has no discretion to act upon such knowledge. The dis- 
 cretion allowed in applications for a continuance must be within the 
 
No. 636. JUDICIAL NOTICE. 753 
 
 law, and must spring out of, and be bounded by what transpires in 
 the case. It cannot be justified upon what the Court, as a man, may or 
 may not know. Justice is administered according to general rules; 
 rules which, if applicable in a single case, must be applicable in all 
 like cases, no matter who are the parties, or what their character. If 
 the Court may dispense with them because of his personal knowledge 
 of the character of the parties before him in one case, he may in all 
 cases._ And this would be equivalent to dispensing with them alto- 
 gether."! 
 
 ATTORNEY-GENERAL v. CAST-PLATE GLASS CO. (1792). 
 
 I Anstr. jp. 
 
 On this information a verdict was found against the defendants, 
 who now moved to set it aside, and obtain a new trial, on the ground 
 of misdirection of the Judge. The case turned upon the inter- 
 pretation of the statute 27 Geo. III. c. 28, whereby it is enacted: 
 . . . Section 10. "And be it further enacted by the authority aforesaid, 
 that all and every maker or makers of cast-plate glass, shall break into 
 small pieces, to the satisfaction of the officer of excise under whose 
 survey such maker or makers shall be, immediately upon being re- 
 quested so to do by such officer, all cast-plate and all cullett which 
 shall not be squared into plates." . . . The five plates in question were 
 made by the defendants, with oval tops, and as this was the shape in 
 which they were intended for sale, they refused to square them, as 
 the officer desired, by making them rectangular; and accordingly this 
 information was filed against them, for the penalties in the tenth 
 section. The Attorney General, at the trial, produced books explain- 
 ing the process and terms of art in the manufacture; and the defend- 
 ants offered evidence to prove, that the technical meaning of the word 
 squaring glass, is the cutting it into the shape in which it is intended 
 for the market, whatever that shape may be; and on this evidence 
 being refused, and a verdict directed and found against the defendants, 
 the present motion was made for a new trial. . . . 
 
 Eyre, C. B. : "In explaining an Act of Parliament, it is impossible 
 to contend, that evidence should be admitted; for that would be to 
 make it a question of fact, in place of a question of law. The Judge 
 is to direct the jury as to the point of law, and in doing so, must form 
 his judgment of the meaning of the legislature in the same manner 
 as if it had come before him by demurrer, where no evidence could 
 be admitted. Yet on demurrer a Judge may well inform himself from 
 dictionaries or books on the particular subject concerning the mean- 
 ing of any word. If he does so at Nisi Prius, and shews them to the 
 jury, they are not to be considered as evidence, but only as the grounds 
 
 I^-Compare the authorities cited in W., § 2569. 
 
754 JUDICIAL NOTICE. No. 636. 
 
 on which the Judge has formed his opinion, as if he were to cite any 
 authorities for the point of law he lays down. 
 
 "I have no doubt in saying, that the legislature used the word 
 'square,' not in the strict, but in the common acceptation, confining 
 it to rectangular, but not to equilateral figures." 
 
 REX V. ROSSER (1836). 
 7 C.& P. 648. 
 
 The prisoner was indicted for stealing in the dwelling of Charles 
 May a watch and seals, stated in the indictment to be of the value of 
 7/. A witness for the prosecution having sworn that the prop- 
 erty, in his opinion, was worth that sum, the jury, after the 
 summing up, inquired if they were at liberty to put a value on the 
 property themselves. 
 
 Vaughan, J. : "If you see any reason to dOubt the evidence on 
 the subject, you are at liberty to do so. Any knowledge you may have 
 on the subject you may use. Some of you may perhaps be in the trade." 
 
 Parke, B. : "If a gentleman is in the trade, he must be sworn as 
 a witness. That general knowledge which any man can bring to the 
 subject may be used without; but if it depends on any knowledge of the 
 trade, the gentleman must be sworn."^ 
 
 DOYLE V. BRADFORD (1878). 
 go III. 416. 
 
 Scott, J.: "This action was brought to recover of defendant a 
 penalty imposed for the violation of a village ordinance regulating 
 the sale of intoxicating liquors. On the trial, both before the jus- 
 "^" tice of the peace and in the circuit court, defendant was found 
 guilty, and judgment rendered against him for $50, and to reverse the 
 judgment of the latter Court he brings the case to this court on appeal. 
 Unless the village is organized under the general incorporation act of 
 1872, it is conceded it had no authority to pass the ordinance that im- 
 posed the penalty sought to be recovered, and as the record contains 
 no express averment to that effect, it is said this Court can not take 
 judicial notice of its organization under the general law. 
 
 "The statute makes it the duty of all Courts in this State to take 
 
 2 — Compare the authorities cited in W., dent commonly does not happen, unless 
 
 § 2570; and the following phrasing: Man- the stick is carelessly handled; that it 
 
 ning V. R. Co., i66 Mass. 230, 44 N. E. is in the power of the holder to see that 
 
 135 (1896) : Injtiry by the fall of a trol- he does not submit it to such a strain 
 
 ley; to the objection that there was no as to make it possible that it should be 
 
 evidence of negligence, it was said "the torn from his hands, — and to infer from 
 
 jury were at liberty to say, from their those general propositions of experience 
 
 experience as men of the world, that that there was negligence in the particu- 
 
 under such circumstances such an accl- lar case." 
 
No. 638. JUDICIAL NOTICE. 755 
 
 judicial notice of the existence of villages and cities organized under 
 the general law, and of the change of the organization o-f any town or 
 city from its original organization to its organization under that act. 
 In Brush v. Lemma, yy 111. 496, it was declared that before this Court 
 could take judicial notice of the change of any city or town from its 
 original organization to its organization under the general law, it must 
 in some way appear in the record that the city or its authorities are 
 acting under such new organization, and when that fact is once made 
 to appear, the Court, without proof that all the requirements of the 
 statute have been complied with, will take judicial notice of its organ- 
 ization under this statute. It is apprehended it can make no difference 
 how that fact is made to appear. All matters generally known will be 
 deemed to be within the knowledge of Courts, — such as the names 
 of counties in the State, and whether they are acting under township 
 organization or not. In the case cited there was a special, public law, 
 of which the Court was bound to take judicial notice, under which 
 the city was originally organized. The single fact, an election had 
 been held and two persons were contesting the right to the office of 
 mayor, was not regarded as such action as would indicate the inhabi- 
 tants were acting under the general incorporation law. Such an elec- 
 tion for such an office could, with equal propriety, have been held 
 under the special law under which the city may have been acting, and 
 hence that circumstance alone was not thought to be sufficient to 'excite 
 inquiry' or to 'arouse judicial notice, the city, as a matter of fact, had 
 changed its organization from under the special to the general law.' 
 
 "But that is not the case here. There was a special law under 
 which the 'town of Bedford' could be and no doubt was organized, but 
 there was no law other than the act of 1872 under which it could be 
 organized as a village. It could only be a village under the general 
 incorporation act. Evidence is found in the record it has assumed to 
 act as a village incorporation in the passage of ordinances and the 
 bringing of suits in its corporate name, and it appears the offense of 
 which defendant was convicted was committed within the corporate 
 limits of the 'village of Bradford.' This is certainly evidence of the 
 existence of the village of Bradford, and as it is known there is no such 
 village under any special law of the State, it must be under the general 
 law; and, as was said in Brush v. Lemma, without proof that all the 
 requirements of the statute have been complied with, judicial notice 
 will be taken of the change of its organization under the general law."^ 
 
 3 — Baron Parke, in Frost's Trial, Gur- Parliament, you had the Act here; for, 
 
 ney's Rep. 168 (1840), to counsel: "For though we are supposed to keep the 
 
 the future, it would save time if, when statutes in our heads, we do not." 
 you founded an objection upon an Act of 
 
756 JUDICIAL NOTICE. No. 639. 
 
 HOOPER V. MOORE (1857). 
 5 Jones Law 130. 
 
 The plaintiff declared for the detention of the slaves Fanny and 
 her children, and alleged title, as administrator with the will annexed 
 of Alexander Moore, under the provisions of that will. The 
 "'*" testator lived and died in Halifax county, in the State of Vir- 
 ginia. . . . The defendant claimed the slaves as the administrator of 
 Alexander Moore, Jun'r., and offered evidence to show that . . . the 
 said testator placed in the possession of his grand-daughter and her 
 husband, Alexander Moore, Jun'r., the slave Fanny in question, who 
 is the mother of the other slaves sued for; that Alexander Moore, 
 Jun'r., held the slaves in question for ten years, during which time, 
 he lived in the State of Virginia, and brought them thence to the county 
 of Caswell, where he remained in possession of them until his death 
 in 1852. In order to show the law of Virginia controlling this trans- 
 action, the deposition of Woodson Hughes, Esquire, a gentleman of 
 the legal profession in that State, was produced, who deposed that ac- 
 cording to the law of Virginia, no inference of a gift could be arawn 
 from the possession of the slaves, under the circumstances of this case. 
 The defendant's counsel insisted: . . . That no statute of Virginia 
 had been offered in evidence, altering the common law; that by the 
 common law a gift was presumed, and that it was the duty of the 
 Court to expound the statute and give the defendant the benefit of the 
 presumption, notwithstanding the deposition of Mr. Hughes, and prayed- 
 the Court so to instruct the jury. The Court . . . declined giving the 
 instructions prayed for, but gave in charge the law of Virginia as 
 proved by the deposition of Mr. Hughes, and left it to the jury to 
 decide the question, whether it was a gift or a loan, free from any 
 presumption either way. Defendant again excepted. . . . 
 
 Pearson, J.: "What is the law of another State, or of a foreign 
 country, is as much a 'question of law,' as what is the law of our 
 own State. There is this difference, however: the Court is presumed 
 to know judicially the public laws of our State, while in respect to 
 private laws, and the laws of other States and foreign countries, this 
 knowledge is not presumed; it follows that the existence of the latter 
 must be alleged and proved as facts; for otherwise, the Court cannot 
 know or take notice of them. This is familiar learning. In order to 
 give effect to this presumption of a knowledge, on the part of the Court, 
 of the public laws of our State, it is provided that the persons who are 
 entrusted with the administration of justice as a Court, shall be men 
 learned in the law. . . . When an issue of fact involves a question of 
 law, the jury are not entrusted to decide it; but it is the duty of the 
 Court to give to the jury instruction in regard to the law, and it is 
 the duty of the jury to be governed by such instructions. In this way, 
 as much accuracy, and as great a degree of fixedness, in respect to 
 
No. 639. JUDICIAL NOTICE. 757 
 
 questions of law, is secured, as the nature of the subject admits of. 
 
 "Such being the case in respect to questions arising about our 
 own laws, it would seem as a matter of course to be likewise so in 
 respect to questions arising about the laws of other States, or of for- 
 eign countries, whenever, in the administration of justice, our Courts 
 are called upon to deal with them. The assertions of a contrary- 
 opinion is met at once by these considerations, which, as it seems 
 to us, cannot be answered: i. e., if juries are incompetent to decide 
 questions in regard to our own laws, and the Court is required to give 
 them instructions in respect thereto, are they any more competent to 
 decide questions in regard to the laws of other States, or foreign coun- 
 tries? and do not they stand equally in need of instructions in respect 
 to them? If such questions are to be decided by the juries, their deci- 
 sions cannot be reviewed by the Supreme Court, and where is the se- 
 curity either for accuracy or fixedness? A jury is not a permanent 
 tribunal, and no memorial is kept of its action, except the general con- 
 clusion — a verdict; which is binding only between the parties to the 
 particular case. 
 
 "But it is said our Courts are not presumed to know the laws of 
 other States, or of foreign countries. Admit it; still can it be ques- 
 tioned that the Court is more competent to ascertain and understand 
 such laws, than the jury? or that the jury stand as much in need of 
 instruction in respect thereto, as in respect to our own laws? 
 
 "Again, it is said the existence of such laws must be alleged and 
 proved as facts. Admit it. But how are they to be proved? To the 
 court, or to the jury? Surely to the court, because they are 'questions 
 of law.' We are aware that an impression prevails to some extent, 
 that the proof is to be made to the jury. This originated from the 
 expression 'to be proved as facts,' and many loose dicta are to be met 
 with, scattered through the books, in which these words have been 
 inadvertently added to, so as to make the expression 'to be proven 
 as facts to the jury.' ... If the law be written, and its existence is 
 properly authenticated, the Court, availing itself of the aid of the judi- 
 cial decisions of the country, puts a construction on it, and explains 
 its meaning and legal effect, and the jury have nothing to do with it, 
 save to follow the instructions of the Court, as if it was our own 
 Jaw. If the law is unwritten, and its existence is presumed or admit- 
 ted, then the jury have nothing to do with it. For example, if it be 
 presumed, or admitted, that the common law prevails in the State 
 of Virginia, and has not been altered by statute in respect to the 
 particular question, our Court decides what the common law is. . . . 
 
 "But if the existence of an unwritten law of another State, or for- 
 eign country, is not presumed or admitted, then its existence must be 
 proved by competent "witnesses, and the jury must then pass on the 
 ■credibility of the witnesses, and it is the province of the Court to 
 inform the jury as to the construction, meaning, and legal effect of 
 the law, supposing its existence to be proven ; and to this end, the Court 
 
758 JUDICIAL NOTICE. No. 639. 
 
 should avail itself of the judicial decisions of the State or country. 
 
 "In our case, the Judge below erred in refusing to decide that, 
 according to the common law, a gift was presumed, as is settled by- 
 repeated decisions, and in leaving it an open question of fact for the 
 jury upon the deposition of Mr. Hughes."* 
 
 McCOY V. THE WORLD'S COLUMBIAN EXPOSITION (1900). 
 186 III. 356, 57 N. E. 1043. 
 
 Cartwright, J. : "Appellant subscribed for one thousand shares 
 of the capital stock of appellee. The shares were $10 each^ and at 
 the time of subscription two per cent, or $200, was paid to meet 
 * preliminary expenses. Afterward, three calls, of eighteen, 
 twenty and twenty per cent, respectively, of the capital stock were 
 made, which appellant refused to pay. Appellee brought this suit to 
 recover the amount of said calls, and at the trial the Court directed a 
 verdict for $7,500, being the amount of the calls, with five per cent 
 interest from the time when they became due. A verdict was returned 
 accordingly and judgment was entered thereon. . . . 
 
 "The subscription contained the condition that the exposition should 
 be located in Chicago, and it is said that there was no proof of the 
 performance of that condition. The Constitution of the State was 
 amended to authorize the corporate authorities of the city of Chicago 
 to issue bonds in the aid of the exposition to be held in the city of 
 Chicago, and the fact that it was located and held there appears from 
 public Acts of Congress. From numerous such acts it became a 
 historical fact of such public notoriety that the Courts will take judicial 
 notice of it."' 
 
 KILPATRICK v. COMMONWEALTH (1858). 
 31 Pa. ig8. 
 
 Strong, J. : "This record presents several questions of the gravest 
 importance. . . . The principal questions relate to the constitution of 
 the court in which the indictment was tried, and to the instruc- 
 "*•'• tion which was given the jury. . . . The record exhibits that, 
 at the court of Oyer and Terminer for the city and county of Phila- 
 delphia, John Kilpatrick, the defendant, was indicted, tried, convicted 
 of murder in the first degree, and sentenced. The first assignment of 
 error is that 'it appears by the record that the case was tried by the 
 Hon. James R. Ludlow and Joseph Allison, neither of whom was the 
 President of the Court of Common Pleas; and therefor the said judges 
 
 4 — Compare the authorities cited in W., s — Compare the authorities cited in W., 
 
 S§ 2572. 2573- § 2575. 
 
No. 641. JUDICIAL NOTICE. 759 
 
 had no constitutional right to hold said, court and try the said case; 
 and that the entire proceedings are void and coram non judice.' 
 
 "Upon the argument in this court a doubt was suggested, whether 
 this question is raised by the record. The doubt was not without 
 reason. Personally we know that Judges Ludlow and Allison are 
 asociate justices of the Court of Common Pleas, learned in the law, 
 and that neither of them is the president of that court. Yet can we 
 judicially take notice of the fact, that neither of them is the president 
 of that court, when the defendant did not deny it by plea, and when 
 the record does not show it; but, on the contrary, avers that the trial 
 took place at a court of Oyer and Terminer? Doubtless, there are 
 many things of public interest, things which ought generally to be 
 known, of which courts will take notice without proof. But whether 
 a Superior Court is bound to know who are the judges of subordinate 
 courts, and what is the nature of their' commissions, is by no means 
 clearly settled. In the English courts it has been held, that such facts 
 a Court cannot be presumed to know. . . . In the American courts the 
 question is still an open one, though it has not often arisen. . . . Not- 
 withstanding the doubts, however, which have elsewhere entertained in 
 similar cases, we are disposed to take judicial notice of the facts that, 
 at the time of the trial in the court below. Judge Thompson was Presi- 
 dent Judge of the Court of Common Pleas of Philadelphia county, and 
 that Judges Ludlow and Allison, though justices learned in the law, 
 were only associates. 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 constitutional courts, as for our hav- 
 ing judicial knowledge of the heads of departments, sheriffs, &c. ; knowl- 
 edge of whom is always presumed."* 
 
 6 — Compare the authorities cited in W., § 2578. 
 
760 JUDICIAL ADMISSIONS. No. 642. 
 
 TITLE II. 
 
 JUDICIAL ADMISSIONS/ : 
 
 LANGLEY v. EARL OF OXFORD (1836). 
 
 I M.& W. 508. 
 
 Debt on bond, in the penalty of 1300/. The defendant craved oyer 
 of the bond and also of the condition, which being set out, stated it to 
 be for payment of the sum of 650/., with interest for the same, 
 after the rate of 5/. for each hundred pounds by the year. The 
 defendant then pleaded that the words respecting the interest had been 
 inserted in the condition of the bond after it had been executed. To 
 which the plaintiff replied, taking issue thereon. At the trial before 
 Lord Abingek, C. B., at the Middlesex Sittings, the plaintiff produced 
 the bond, the execution of which was attested by a subscribing wit- 
 ness ; but he was not called. Evidence, however, was given of a search 
 for him, but without success, which the learned Judge held to be suf- 
 ficient to excuse his not being produced. The handwriting of the at- 
 testing witness was not proved, but the plaintiff put in an order of Mr. 
 Baron Gurney, dated the loth of February, 1835, by which it was 
 ordered, with the consent of both parties, that the venue should be 
 
 I — Compare the following passages: tions not unreasonable, not against good 
 
 Gilbert, Evidence, 103 (1726): "The morals or sound public policy, have been 
 
 consent of the parties concerned must be and will be enforced; and generally, all 
 
 sufHcient and concluding evidence of the stipulations made by parties for the gov- 
 
 truth of such fact, for they [the jury] emment of their conduct or the control 
 
 are only to try the truth of such facts of their rights, in the trial of a cause 
 
 •wherein the parties differ." or the conduct of a litigation, are en- 
 
 Com, V. Desmond, 5 Gray 80, 82 (1855); forced by the Courts. ... So it is not 
 
 Thomas, J., referring to the prosecuting true that parties cannot enter into stipu- 
 
 attorney's admission trial that a, witness lations which in some sense will bind and 
 
 ■was an accomplice; "Admissions made in control the action of the Courts." 
 the course of judicial proceedings are sub- Dunning v. M. C. R. Co., 91 Me. 81, 39 
 
 stitutes for, and dispense with, the actual Atl. 352 (1897); Savage, J.: "It does not 
 
 proof of facts." lie in the power of one party to prevent 
 
 Paige V. Willet, 38 N. Y. 28, 31 the introduction of relevant evidence by 
 (1868): "A party who formally and ex- admitting in general terms the fact which 
 plicitly admits by his pleading that which such evidence tends to prdve, if the pre- 
 establishes the plaintiff's right will not be siding justice, in his discretion, deems it 
 suffered to deny its existence or to prove proper to receive it. Parties, as a general 
 any state of facts inconsistent with that rule, are entitled to prove the essential 
 admission." facts, — ^to present to the jury a picture 
 
 New York, L. & W. R. Co.'s Petition, of the events relied upon. To substitute 
 
 98 N. Y. 447, 453 (1885); stipulation as for such « picture a naked admission 
 
 to commissioners of valuation; Earl, J.: might have the effect to rob the evidence 
 
 "Parties by their stipulations , . . may of much of its fair and legitimate weight." 
 stipulate away statutory, and even con- Compare the authorities cited in W., §§ 
 
 stitutional rights; ... all such stipula- 2588, 2589. 
 
No, 643. JUDICIAL ADMISSIONS. 761 
 
 changed from Carmarthenshire to Middlesex, the defendant thereby 
 undertaking to admit on the trial of the cause, in case the subscribing 
 witness should not be found, that the attestation was in his handwrit- 
 ing. The cause had been before tried in Middlesex after the above 
 order was made, the only issue then being on the plea of non est fac- 
 tum; the words in the condition of the bond respecting the payment 
 of interest, not having been set out on oyer. The plaintiff on that trial 
 recovered a verdict, which the Court set aside, and ordered a new trial 
 on payment of costs, giving the defendant leave to set out on oyer the 
 words respecting the interest; and the defendant accordingly did so, 
 and pleaded the special plea now on the record. The defendant con- 
 tended on the second trial, that the order of Mr. Baron Gurney did 
 not apply to this trial, and that it was therefore incumbent on the plain- 
 tiff to prove the handwriting of the attesting witness. The Lord Chief 
 Baron, however, admitted the bond in evidence without further proof, 
 but gave the defendant leave to move to enter a nonsuit, on the above 
 ground. . . . 
 
 Sir W. W. Follett now moved to enter a nonsuit, on the ground that 
 the admission contained in the judge's order, made previously to the 
 first trial, was not evidence on this trial, as the pleadings were different. 
 He admitted, that if the pleadings had remained the same, the admis- 
 sion might have been evidence on the second trial. But he contended, 
 that the oyer having been amended, and a new plea pleaded, it made 
 it altogether a new record. . . . 
 
 Per Curiam : "... The admission is to be used on the trial of the 
 cause, whenever the trial takes place; no matter whether it be the first 
 or the second trial."'' 
 
 PRESTWOOD v. WATSON (1896). 
 Ill Ala. 604, 20 So. 600. 
 
 Ejectment by E. Watson, as administrator of the estate of R. E. 
 Jordan, deceased, against J. E. Prestwood and A. J. Fletcher, to re- 
 cover certain lands, specifically described in the complaint. 
 648 There was a judgment for plaintiff, and defendants appeal. Re- 
 versed. . . . On the trial of the cause it was admitted and agreed by and 
 between the attorneys for the plaintiff and the defendants that this case 
 was tried in the same court, at a former term of the court, upon an 
 agreed written statement of facts; that said written agreed statement 
 of facts upon which the case was formerly tried, and the bill of ex- 
 ceptions upon which the case was appealed, were lost or mislaid. . . . 
 The plaintiff offered to introduce in evidence a copy of the agreed 
 statement of facts used on the former trial, which was taken from the 
 report of the case as found in 79 Ala. 417. It was shown by the tes- 
 
 3 — Compare the authorities cited in W., 5 2594- 
 
762 JUDICIAL ADMISSIONS. No. 643. 
 
 timony of John Gamble that the foregoing agreement was not signed 
 by the parties or their attorneys, .and was made only for that trial, 
 and that several years ago (four or five years) the counsel of de- 
 fendants notified plaintiff and his counsel that defendants would not 
 abide said agreement in any subsequent trial. The defendants objected 
 to the introduction of said statement of facts upon the following 
 grounds: (i) Said agreed statement of facts was never signed by the 
 parties, or by their attorneys. (2) Said agreed statement of facts 
 was not shown to be made in open court, or indorsed or entered on 
 the minutes or record of the court. (3) Said agreed statement of facts 
 was not admissible, nor could the same be alleged or suggested by the 
 plaintiff, against the defendants in this cause, because the same was not 
 signed by the party to be bound thereby. The Court overruled each of 
 the foregoing grounds of objections, allowed said agreed statement of 
 facts to be introduced as evidence, and to this ruling the defendants duly 
 excepted. . . . 
 
 Bkickell, C. J.: "A former trial of this case was had in the court 
 below, on a statement of facts reduced to writing, and by the parties 
 admitted to be true, in open court. . . . The primary question to be 
 considered is whether, on a subsequent trial, this statement of facts 
 was admissible, and its operation and effect as evidence; for, if it was 
 admissible, and binding and conclusive on the parties, a consideration 
 of many of the exceptions reserved is unnecessary. Agreements of 
 this character, intelligently and deliberately made, — whether made by 
 the parties in person, or by their attorneys or solicitors of record, — 
 are encouraged and favored. Their purpose, generally, is to save costs, 
 and to expedite trials, by relieving from rules of practice which in 
 the particular case are deemed mere hindrances, or the dispensation 
 with mere formal proof, or, as in the present case, the admission of 
 uncontroverted facts, of the existence of which the parties are fully 
 cognizant. . . . Such agreements are sometimes made to avoid con- 
 tinuances, or for some specific purpose, and, by their terms, are limited 
 to the particular occasion or purpose, and, of course, lose all force when 
 the occasion has passed, or the purpose has been accomplished. But 
 if by their terms they are not limited, and are unqualified admissions 
 of facts, the limitation is not implied, and they are receivable on any 
 subsequent trial between the parties. . . . That the agreement was 
 not signed by the parties or by the counsel was not of importance. 
 Their signatures were not necessary to impart to it validity. Private 
 agreements between parties or their attorneys, relating to the proceed- 
 ings in a pending case, — agreements not made in the presence of the 
 Court, — ^the rules of practice require, shall be in writing, and signed 
 by the party to be bound thereby. The rule has never been supposed 
 to have any application to agreements or admissions made in the 
 presence of the Court. Upon such agreements or admissions, made 
 verbally, every Court is necessitated to act daily. The refusal to recog- 
 
No. 644. JUDICIAL ADMISSIONS. 763 
 
 nize and act upon them would delay the transaction of business, and 
 entail upon counsel and parties much unnecessary labor. The purpose 
 of the rule is to relieve such admissions or agreements from the in- 
 firmative considerations attaching to mere oral admissions of facts 
 imputed to the one party or the other, and to avoid the unseemly 
 wrangles, disputes, and contradictions which would ensue if they 
 rested only in memory. Where the agreement or admission is made 
 in the presence of the Court, it is without the purpose or reason, if not 
 without the letter, of the rule. And when made in open court, and 
 reduced to writing, intended to be used, and used, as an instrument of 
 evidence, and is without limitation as to time or occasion, it cannot 
 be withdrawn or retracted at the mere will of either party. The pres- 
 ence of witnesses to prove the facts stated is waived. If the witnesses 
 had been produced and testified, and they died, or became insane, or 
 removed without the jurisdiction of the court, on a subsequent trial 
 evidence of their testimony would be admissible. The admission of 
 the facts dispensing with evidence, if it could be disregarded by either 
 party on any subsequent trial, in the event of inability to produce wit- 
 nesses to establish them, would often convert such admissions into 
 instruments of fraud and injury. When they are made deliberately 
 and intelligently, in the presence of the Court, and reduced to writing, 
 they are of the best species of evidence; and parties cannot be per- 
 mitted to retract them, as they are not permitted at pleasure to retract 
 admissions of fact made in any form. If they are made improvidently 
 and by mistake, and the improvidence and mistake be clearly shown, 
 the Court has a discretion to relieve from their consequences, — a discre- 
 tion which should be exercised sparingly and cautiously. 
 
 "There was no application by either party for relief from the agree- 
 ment, and neither party should have been bound to give evidence in 
 controversy of the facts therein stated. The loss of the writing ren- 
 dered admissible secondary evidence of its contents. The best evidence 
 would have been a certified copy of the transcript in this court on the 
 former trial. Unless by consent, the statement found in the published 
 report of the case was not admissible."^ 
 
 Statutes. California, C. C. P. 1872, § 595, as amended by St. 
 1880: "The Court may require a moving party, where application is 
 made on account of the absence of a material witness, to state 
 upon affidavit the evidence which he expects to obtain; and if 
 the adverse party thereupon admits that such evidence would be given, 
 and that it be considered as actually given on the trial, or offered, or 
 overruled as improper, the trial must not be postponed." 
 
 3 — Compare the rule for the authority note); and the authorities cited in W., 
 of an attorney as agent in making ad- §§ 1063, 2594. 
 missions out of court Cante, No. 138, 
 
764 JUDICIAL ADMISSIONS. No. 644, 
 
 Illinois, Rev. St. 1845, Rev. St. 1874, c. no, §§ 43, 44: In asking 
 a continuance "on account of the absence of testimony," the party's 
 or his agent's affidavit stating the facts expected to be proved thereby, 
 etc., must be offered; "if the other party will admit the affidavit in evi- 
 dence, the cause shall not be continued"; lb., § 45, Laws 1867, p. 157: 
 "When the affidavit is concerning the evidence of a witness, the party 
 admitting such affidavit shall be held to admit only that if the absent 
 witness were present he would testify as alleged in the affidavit, and 
 such admission shall have no greater lorce or effect than if such ab- 
 sent witness were present and testified as alleged in the affidavit, leav- 
 ing it to the party admitting such affidavit to controvert the statements 
 contained therein, or to impeach said witness, the same as if such 
 witness were present and examined in open court" ; lb. c. 38, § 428 a, 
 St. 1885, June 26, p. 73 : On such affidavits in a criminal case, neither 
 party shall be "required to admit the absolute truth of the matter set 
 up in the affidavit for continuance, but only that such absent witness, 
 if present, would testify as alleged in the affidavit; and if it is so ad- 
 mitted, no continuance shall be granted, but the case shall go to trial, 
 and the party admitting the evidence shall be permitted to controvert 
 the statements contained in such affidavit by other evidence, or to 
 impeach such absent witness the same as if he had testified in person ; 
 provided that the Court may in its discretion require the opposite party 
 to admit the truth absolutely of any such affidavit when, from the na- 
 ture of the case, he may be of opinion that the ends of justice re- 
 quire it." 
 
 ADKINS V. COMMONWEALTH (1896). 
 98 Ky. 539, 33 S. W. 948. 
 
 Grace^ J.: "This is an appeal by Joseph Adkins and Jesse Fields 
 from a judgment of the Knox circuit court sentencing each of them 
 to confinement in the state penitentiary for life, for the murder 
 ** of Josiah Combs. The killing occurred in Hazard, the county 
 seat of Perry county, on the 23d day of September, 1894; same being 
 Sunday and about 7 o'clock in the morning. Indictment against these 
 defendants was duly found by the grand jury of Perry county on the 
 13th day of December, 1894. And on the same day, a motion of the 
 Commonwealth for the removal of the cause to another county, was 
 made, accompanied by the written statement of the Commonwealth's 
 attorney, in due form, that the state of lawlessness was such in Perry 
 county that a fair trial of the accused on said charge could not be had in 
 that county. . . . Upon this state of the record, the Court made an order 
 removing the cause to the county of Knox for trial, and to this order de- 
 fendants excepted. . . . The Knox circuit court began on the second Mon- 
 day in April, 1895. This cause seems to have been set for the fourth day 
 of the term. The Commonwealth announced 'Ready.' The defendants 
 
No. 645, JUDICIAL ADMISSIONS. 765 
 
 were not ready, and, being required, they filed an affidavit setting out 
 the absence of some 25 witnesses by whom they could prove important 
 and material facts, chiefly relating to an alibi in behalf of both parties; 
 showing that in March, before, they had procured a subpoena for the 
 witnesses, and placed same in the hands of the sherifif of Breathitt 
 county, where said witnesses resided; counsel for defendants saying 
 to the Court that they did not desire a continuance of the cause for the 
 term, provided they could obtain the attendance of these witnesses at 
 a later day of the court. Thereupon the Court set said cause for hear- 
 ing on the tenth day of the term. . . . On the calling of the cause on 
 the tenth day of the term, the attorney for the Commonwealth again 
 announced 'Ready,' and the defendants, 'Not ready,' and, being re- 
 quired by the Court again to show cause, they filed another affidavit, 
 reciting the absence of some 27 witnesses, the materiality of whose 
 evidence in their defense was duly set forth, together with the facts 
 developed in their efforts to procure their attendance since the former 
 calling of the cause, as recited herein. And defendants again asked 
 a continuance. Upon an examination of this last affidavit, the Com- 
 monwealth's attorney agreed that the same might be read upon the 
 trial of the cause as the testimony of the absent witnesses; the counsel 
 for accused insisting, if compelled to try on this affidavit, that the State 
 should admit absolutely, as true, the facts stated in this affidavit. This 
 the Court overruled. Exceptions were duly taken, and the Court over- 
 ruled the motion for a continuance. ... It is proper to add that, of 
 the witnesses for the defense from Breathitt county who were relied 
 upon by them to prove an alibi, 10 finally appeared, and testified to a 
 state of facts which, if true, showed it was impossible that either of 
 the accused (Adkins or Fields) could have been in Hazard, Perry 
 county, Sunday morning, September 23, 1894, when the shooting and 
 killing of Combs occurred; this testimony showing the accused to have 
 then been in Breathitt county, 30 miles away from Hazard, at the hour 
 of the shooting of Combs. And finally it appears, under the affidavit 
 which the accused did file, and the statements of which the Common- 
 wealth consented, to prevent a continuance, might be read as evidence, 
 that the statements of 13 other witnesses were read on this same mat- 
 ter of an alibi; that these statements were given with great detail 
 and circumstance of time and place, and showing conclusively, if true, 
 that the accused could not have been in Hazard, Perry county, at the 
 time of the killing of Josiah Combs. 
 
 "Counsel for the defendants contend earnestly that in all this pro- 
 ceeding their clients have, by this combination of circumstances, . . . 
 not been allowed a reasonable opportunity to prepare their defense 
 in a case of such grave magnitude to them. . . . Counsel question the 
 constitutionality of the act of 1886 in reference to the trial of criminal 
 cases, whereby this proceeding is made possible under the Code. Coun- 
 sel say that this question has often been presented to this Court, but 
 
766 JUDICIAL ADMISSIONS. No. 645. 
 
 not decided; and they insist in this case that it is due to their clients, 
 as well as to the trial courts of the state, and to the profession, that it 
 should be determined. 
 
 "The provision upon which counsel rely is found in the eleventh 
 section of the Bill of Rights, adopted as a part of the present Consti- 
 tution of Kentucky, and is as follows : 'In all criminal prosecutions the 
 accused has the right to be heard by himself and counsel; to demand 
 the nature and cause of the accusation against him; to meet the wit- 
 nesses face to face, and to have compulsory process for obtaining wit- 
 nesses in his favor.' These are substantially the same provisions on 
 this subject as contained in the old Constitution of Kentucky. Under 
 our Criminal Code, adopted soon after that Constitution went into 
 operation, it was provided (section i88) : 'That when an indictment 
 is called for trial, or at any time previous thereto, the Court upon suf- 
 ficient cause shown by either party may direct the trial to be postponed 
 to any time in the same term, or to another term.' And by section 189 : 
 'That the provisions of the Code of Practice in civil actions in regard 
 to the postponement of the trial of actions, shall apply to the post- 
 ponement of [criminal] prosecutions on application of defendant, ex- 
 cept that, when the ground of application for a continuance is the ab- 
 sence of a material witness, and the defendant makes affidavit as to 
 the facts which such witness would prove, the continuance shall be 
 granted, unless the attorney for the Commonwealth admit upon the 
 trial that the facts are true.' These provisions found in the Code of 
 1854 became the rule of practice in the trial courts, and, from time to 
 time, it was, either by implication or directly approved by the Court. 
 . . . And such continued to be the law and rule of practice in criminal 
 cases up to May, 1886. During all these years it became manifest that 
 the rule requiring the State to admit as absolutely true whatever the 
 accused might, by his ex parte affidavit, say he could prove by an absent 
 witness, materially impaired the execution of the criminal law; that 
 by its operation it was placed in the power of an unscrupulous crim- 
 inal, aided by expert and ingenious counsel, to long and indefinitely 
 delay the trial of his cause, or else to compel the State to admit facts, 
 for the purpose of a trial, which often, in effect, were equivalent to a 
 verdict of acquittal. In this way, and by the operation of this pro- 
 vision, the criminal law was brought into disrepute, and by many held 
 in contempt, and the Court and officers of the law censured for the 
 long delay, and final failure, of justice. To remedy this crying evil, 
 the Legislature, in 1886, amended the provisions of the Code of 1854 
 in reference to the terms on which the State might procure a trial of 
 criminal causes, and provided that the State might demand a trial, at 
 any term of the Court after the one at which the indictment was found, 
 by admitting, not that the facts claimed by the accused that he could 
 prove by any absent witness were true, but by admitting that, if such 
 witness was present and testifying, he would state the facts as claimed 
 
No. 645. JUDICIAL ADMISSIONS. 767 
 
 by the accused in his affidavit; this latter amendment, however, still 
 containing a provision that the Court might, in its discretion, where 
 the "ends of justice seemed to require it, compel the attorney for the 
 Commonwealth to admit the truth of the statements contained in the 
 affidavit of the accused. This amendment of 1886 also contained 
 further clauses authorizing the State to contradict the statements of 
 the affidavit by other testimony, and to impeach the absent witnesses 
 by whom it was claimed such testimony would be given. This law 
 has been the rule of practice in the circuit courts of the State since its 
 enactment. It is conceded that its provisions are widely different, 
 and make a material modification of the Code of 1854 on this subject. 
 It may be also observed of this new provision that, in practice, it has 
 been found a great improvement upon the old law, in that it enables 
 the State, in a reasonable time to force a trial of its indictments, not- 
 withstanding the continued and persistent efforts of the accused to 
 delay and continue. We call to mind no provision of the Criminal Code 
 that has been found so valuable, and of such material aid to accomplish 
 a speedy trial, as that contained in this amendment. . . . 
 
 "Yet the question remains whether this amendment of 1886 is con- 
 stitutional. Of the provisions of Bill of Rights, § 11, before quoted, 
 as applicable to this case, we have two clauses, — one affirming the right 
 of a person accused of crime to meet the witness face to face (of 
 course, this means the witness that may be called by the State against 
 him). The other provision is that the accused shall have the right to 
 'the compulsory process of the State for obtaining witnesses in his 
 favor.' The one provision is equally as authoritative, as clear, and its 
 meaning as obvious, as the other. No effort has ever been made by 
 the Legislature to impair in any degree the efficiency of the first clause 
 quoted, 'That accused shall have the right to meet the witnesses [called 
 against him] face to face.' We apprehend that no such effort would 
 be tolerated by the Courts. And yet this section 11 of the Bill of 
 Rights by no means contains the whole law applicable to the Criminal 
 Code of the State. . . . The provision of section 11 of the Constitu- 
 tion, under consideration, is but a part of the whole. It is but a pro- 
 vision in behalf of one accused of crime to have the process of the 
 State to compel the attendance of his witnesses. And yet the question 
 is presented whether this provision shall override and suborn every 
 other duty of the State to the citizen. Whether, after the compliance with 
 this provision of the Constitution, in awarding to the accused the com- 
 pulsory process of the State, wherein and whereby is given reasonable 
 time and opportunity for the execution of the same, and yet, after all 
 this has been done, and the actual attendance of every possible witness 
 failed to be obtained, what shall then be done? Shall the accused be 
 discharged without trial, and, of course, without punishment, or shall 
 the Legislature make some other and further provision applicable to 
 that state of case? It did undertake to make such further provision, 
 
768 JUDICIAL ADMISSIONS, . No. 645. 
 
 by the Code of 1854, in allowing the State a trial upon admitting as 
 true the facts stated by accused that he could prove by absent wit- 
 nesses. This provision, having, on a fair trial, been found highly 
 detrimental, if not subversive of the whole Criminal Code, was by the 
 amendment of 1886, under consideration, abandoned, and a different 
 mode adopted by the legislative will. This consists, as we have seen, 
 in only requiring the State to admit that the absent witnesses, if pres- 
 ent, would testify as claimed in the affidavit. On the face of the acts in 
 question, neither of them, either in letter or spirit, violates the pro- 
 visions of the Constitution. They are but an expression of the legisla- 
 tive will as to what shall be the rule of procedure by the Courts on a 
 state of case where the accused, having had awarded him this compulsory 
 process of the state to obtain the attendance of his witnesses, and having 
 been allowed a reasonable time and opportunity to enforce this writ, yet, 
 on the calling of his case for trial, finds himself without the actual pres- 
 ence of all the witnesses whom he desires. ... In adopting this con- 
 struction, the prisoner is deprived of no right guaranteed to him by 
 the Constitution. And the State is also, by this amendment of 1886, 
 enabled to obtain a trial within a reasonable time, and thus give to all 
 her citizens the benefit of the laws enacted for their security and pro- 
 tection. 
 
 "Reviewing this case in the light of this interpretation, and upon 
 the facts disclosed by the record, we feel constrained to say that the 
 accused have not, in the trial of this case, had awarded them the com- 
 pulsory process of the law, with reasonable time and opportunity to 
 obtain the benefit of same. And for this reason the judgment of con- 
 viction, as to both appellants, Adkins and Fields, is reversed, and the 
 cause remanded to the Knox circuit court for further proceedings therein 
 not inconsistent with the principles of this opinion."* 
 
 Statutes. England, Rules of Practice, Hilary Term, 4 Wm. IV 
 (10 Bing. 456), No. 20: "Either party, after plea pleaded, and a 
 reasonable time before trial, may give notice ... of his inten- 
 "*'* tion to adduce in evidence certain written or printed documents; 
 and unless the adverse party shall consent, by indorsement on such notice, 
 within forty-eight hours, to make the admission specified," the ofifering 
 party may move that the opponent show cause, and "the judge shall, 
 if he think the application reasonable, make an order that the costs of 
 proving any document specified in the notice, which shall be proved at 
 the trial to the satisfaction of the judge or presiding officer, shall be 
 paid by the party so required, whatever may be the result of the cause" ; 
 provided that the judge "may give time for inquiry or examinatioa 
 of the documents intended to be offered in evidence, and give such. 
 
 4 — Compare the authorities cited in W., § 2593. 
 
No. 646. JUDICIAL ADMISSIONS. 769 
 
 directions for inspection and examination, and impose such terms upon 
 the party requiring the admission, as he shall think fit"; and no costs 
 of proving a document shall be allowed "to any party who shall have 
 adduced the same in evidence on any trial, unless he shall have given 
 such notice as aforesaid, and the adverse party shall have neglected or 
 refused to make such admission'' or the judge have indorsed the appli- 
 cation as not reasonable to be granted. 
 
 California, C. C. P. 1872, § 447, as amended by St. 1874: "When 
 an action is brought upon a written instrument, and the complaint con- 
 tains a copy of such instrument, or a copy is annexed thereto, the genu- 
 ineness and due execution of such instrument are deemed admitted, 
 unless the answer denying the same be verified"; lb. § 448: "When 
 the defense to an action is founded on a written instrument, and a 
 copy thereof is contained in the answer, or is annexed thereto, the 
 genuineness and due execution of such instrument are deemed ad- 
 mitted, unless the plaintiff file with the clerk, within ten days after 
 receiving a c7)py of the answer, an affidavit denying the same, and 
 serve a copy thereof on the defendant"; lb. § 449, as amended by St. 
 1880: "But the execution of the instrument mentioned in the two pre- 
 ceding sections is not deemed admitted by a failure to deny the same 
 under oath, if the party desiring to controvert the same is upon demand 
 refused an inspection of the original. Such demand must be in writing, 
 served by copy upon the adverse party or his attorney, and filed with 
 the papers in the case." 
 
 Illinois, Rev. St. 1874, c. no, § 34, Rev. St. 1845, p. 415, § 14: "No 
 person shall be permitted to deny, on trial, the execution or assignment 
 of an instrument in writing, whether sealed or not, upon which any 
 action may have been brought, or which shall be pleaded or set up 
 by way of defense or set-off, or is admissible under the pleadings when 
 a copy is filed, unless the person so denying the same shall, if de- 
 fendant, verify his plea by affidavit, and if plaintiff shall file his affi- 
 davit denying the execution or assignment of such instrument; pro- 
 vided, if the party making such denial be not the party alleged to have 
 executed or assigned such instrument, the denial may be made on the 
 information and belief of such party." 
 
 New York, C. C. P. 1877, § 735: "The attorney for a party may, 
 at any time before the trial, exhibit to the attorney for the adverse 
 party a paper material to the action, and request a written admission 
 of its genuineness. If the admission is not given, within four days 
 after the request, and the paper is proved or admitted on the trial, the 
 expenses, incurred by the party exhibiting it, in order to prove its 
 genuineness, must be ascertained at the trial and paid by the party 
 refusing the admission; unless it appears, to the satisfaction of the 
 Court, that there was a good reason for the refusal."^ 
 
 5 — Compare the authorities cited in W., ducei by a party claiming under them 
 5 2596; and the rule for documents fro- (ante. No. 218). 
 
770 JUDICIAL ADMISSIONS. No. 647. 
 
 CARVER V. CARVER (1884). 
 P7 Ind. 497, 510.' 
 
 ZoLLARS, J.: "Action by appellee in relation to real estate; verdict 
 in her favor, and over a motion for a new trial and other motions, 
 judgment upon the verdict that she is the owner, and entitled 
 "*^ to the possessioii, of the undivided one-third of the real estate, 
 and for $125 against appellant William Carver for the detention thereof. 
 . . . This brings us to the question of the sufficiency of the paragraphs 
 of the complainant, as against any of the defendants. . . . The second 
 paragraph is quite lengthy, tedious, and uncertain in detail. The sub- 
 stance of it is as follows : In 1853, appellee's father gave to her lands 
 in Rush county, subject to a small encumbrance, and conveyed it to a 
 trustee, to be held by him until her husband should pay off the en- 
 cumbrance, when the trustee should convey it to her. In 1854, the 
 trustee, with her consent, sold the land for enough to pay off the en- 
 cumbrance and $2,500 additional. In the same year, her husband, Ira 
 Carver, and appellant William Carver, purchased land in Henry county, 
 and paid for the same with appellee's $2,500. With hpr consent, the 
 money was thus applied as an investment for her. The land in Henry 
 county having been sold, appellee's husband, acting as her agent, for 
 her use and benefit, purchased the land in controversy, and paid for 
 the same with the proceeds of the Henry county land. By mistake, 
 the deed for this land was not made to appellee, but to her husband. 
 In 1857, her husb4nd was of weak mind and financially embarrassed. 
 Appellant William Carver, with knowledge of the husband's condition, 
 mentally and financially, and that appellee's money paid for the land, 
 and with the intent to cheat and defraud her out of the land, confederated 
 with the husband, and a justice of the peace, to get her to sign a deed 
 to him, William Carver. To accomplish this, they and each of them, 
 and especially William Carver, represented to her that her husband 
 was overwhelmingly in debt, and that his creditors were about to arrest 
 and imprison him; that he, William Carver, was security for her hus- 
 band for a large amount ; that if she would execute to him a mortgage 
 upon the land to secure him, he would save her husband from arrest 
 and imprisonment, and save the land for her and her children, and 
 that in no other way could this be done. Believing and relying upon 
 these representations, all of which were false, and known to the parties 
 to be false, she signed what they told her was a mortgage. She never 
 made any deed to William Carver, and the deed under which he claims 
 to hold the land is as to her a forgery. During all this time she was 
 the wife of Ira Carver, and continued to be and to live with him as such 
 until 1875, when he died. She had no knowledge of the deed until 
 1870. . . . 
 
 6 — The part of the opinion in this case considered in connection with Nos. 606- 
 dealing with the burden of proof is to be 6io, ante. 
 
No. 647. JUDICIAL ADMISSIONS. ' 771 
 
 "It is conceded by appellants in argument, that Ira Carver, husband 
 of appellee, was the owner of the land described in the second para- 
 graph of the complaint and in the judgment, prior to the 20th day of 
 November, 1857, at which time he made a deed for the same to appel- 
 lant William Carver. Their whole claim rests upon the deed from 
 him. It is really conceded, too, and shown by the evidence, that ap- 
 pellee, as the widow of Ira Carver, who died in 1875, if she did not 
 join in that deed, is the owner of and entitled to the possession of the 
 undivided one-third of the said real estate, except, perhaps, what may 
 have been sold by Carver. It is contended, however, that she did join 
 in that deed. Whether she did or not, is the main question of fact 
 in the cause. 
 
 "Prior to the trial, appellants served a notice on appellee, that upon 
 the trial they would introduce in evidence the said deed, which bears 
 the names of appellee and her husband as grantors. Upon the service 
 of this notice, appellee filed her affidavit denying the execution of the 
 deed. Proof of execution having been made, which, to the trial Court, 
 was sufficient to entitle the deed to be read in evidence, it was so read. 
 The third instruction to the jury was as follows: 'The defendants 
 have read in evidence a deed purporting to be executed by Ira Carver 
 and plaintiff, Esther J. Carver, conveying said real estate to the de- 
 fendant William Carver. The burden of proving that the plaintiff 
 . . . executed said deed is upon the defendants, and if the defendants 
 have not proved by a preponderance of all the evidence in the cause 
 that said plaintiff did sign her name to said deed, the plaintiff is en- 
 titled to a verdict in her favor, no matter how innocent the defendants 
 may have been in their purchase. If, however, you find that Esther 
 J. Carver did sign her name to said deed then your verdict must be 
 for the defendants, whether the deed bears the true date of its execution 
 or not; and this must be your verdict, though the plaintiff, when she 
 signed said deed, believed it to be a mortgage. You will then see that 
 an important point in controversy is as to whether the plaintiff signed 
 said deed, and this you will determine, as well as all other facts sub- 
 mitted to you, from a careful consideration of all the testimony and 
 circumstances in evidence, for you are the exclusive judges of the evi- 
 dence and the credibility of the witnesses, and determine from the 
 evidence what it proves and what it does not prove.' Several objec- 
 tions are urged against this instruction. As related to the deed the 
 argument is, first, that after appellants had made such a case as en- 
 titled the deed to be read in evidence, the burden of proof was shifted 
 to appellee to prove the non-execution of the deed; second that as 
 the execution of the deed seeirs to have been acknowledged before an 
 officer authorized to take acknowledgments, appellee can not, in this 
 action, dispute the execution. These two objections are so related 
 that we consider them together. 
 
 I. "The rule is well settled that in the absence of statutes upon 
 
772 ' JUDICIAL ADMISSIONS. No. 647. 
 
 the subject, the grantee, offering a deed in evidence, must prove its 
 execution, whether it has been acknowledged and recorded or not; 
 especially is this so if its execution is put in issue by a plea of non est 
 factum. The statutes of this State, like those of many of the other 
 States, have made material innovations upon this rule. The code of 
 1852, in force when this cause was tried, provided that where a writing, 
 purporting to have been executed by one of the parties, is the founda- 
 tion of, or is referred to in any pleading, it may be read in evidence 
 on the trial of the cause against such party without proving its execu- 
 tion, unless its execution be denied by affidavit before the commencement 
 of the trial, or unless denied by a pleading under oath. . . . Section 
 304, 2 R. S. 1876, p. 158, provided as follows: 'If either party at any 
 time before trial allow the other an inspection of any writing, material 
 to . the action, whether mentioned in the pleadings or not, and deliver 
 to him a copy thereof, with notice that he intends to read the same in 
 evidence on the trial of the cause, it may be so read, without proof of 
 its genuineness, or execution, unless denied by affidavit before the 
 commencement of the trial.' A failure to deny the execution by a 
 pleading under oath has been held to be so far an admission of the 
 genuineness of the instrument as to preclude its being controverted by 
 proof. This rule would, perhaps, apply to a case like this where the 
 denial is by affidavit. The reason of this ruling, as stated in the earliest 
 decision upon the subject under these statutes, is that the party relying 
 upon the instrument has a right to be forewarned of any contemplated 
 attack upon it. . . . These statutes clearly include deeds, and recog- 
 nize the rule as we have stated it to be, in the absence of statutes. 
 Their purpose is not to shift the burden of proof, but simply to re- 
 lieve the party relying upon a written instrument of the burden of 
 making proof of its execution, unless the execution be denied under 
 oath. ... The affidavit, or plea of non est factum, throws back upon 
 the other party the burden of proving the execution of the instrument, 
 and thus the parties occupy the position they would have occupied 
 were there no statutes upon the subject. 
 
 "After making a prima facie case in favor of the execution of the 
 writing, it may be read in evidence. The party making such proof 
 may rely upon it, and in the absence of countervailing evidence, it will 
 be sufficient to make his case. This, however, does not shift the burden 
 of the issue to the party denying the execution. In the case of Fay v. 
 Burditt, 81 Ind. 433 (42 Am. R. 142), it was questioned, whether in 
 any case, it is proper to say that the burden of an affirmative issue 
 shifts in the course of a trial from one party to the other. We think, 
 tipon further consideration, that there is no hazard in saying that it 
 •does not as to any single proposition, such as to whether or not a 
 written instrument was in fact executed by the party denying the 
 execution. When the execution of an instrument is thus denied, the 
 question is, did the party thus denying in fact execute it? The party 
 
No. 647. JUDICIAL ADMISSIONS. 773 
 
 relying upon it has the afErmative of that issue. The burden is upon 
 him to establish that affirmative, and that burden will remain upon 
 him until he establishes it to the satisfaction of the jury, not by a 
 prima facie case alone, but by such proof as will withstand and over- 
 throw all of the evidence to the contrary. There must be more than 
 an equipoise of the testimony; there must be a preponderance in favor 
 of the execution. If, upon the making of a prima facie case, the burden 
 shifts to the other side, then it would follow that when the prima facie 
 case is overthrown by weightier testimony, the burden shifts back 
 again. To say that the burden thus shifts, is to say that it is con- 
 stantly shifting from the stronger to the weaker side, as the testimony 
 may make one side or the other stronger. Of course, when a prima 
 facie case is made out in a case like this, the burden is upon the other 
 side to meet it, or suffer defeat. . . . This imposition of the burden to 
 meet a prima facie case, or to show matter in avoidance, is not the 
 shifting of the burden of proof as to the fact in issue. Appellants 
 made their defence under the general denial, as they had a right to do 
 under the statute. By introducing in evidence the deed from Williams 
 to Ira Carver, appellee's husband, and the deed which purports to have 
 been executed by appellee and her husband, they made their defence, 
 as against appellee's claim, dependent upon the validity of the latter 
 deed. The defence thus took the shape of an affirmative defence, a 
 defence of confession and avoidance; a confession of title in appellee 
 as the widow of Ira Carver, and of avoidance, by the deed from her 
 and husband to appellant William Carver. By the notice and affidavit 
 in relation to this latter deed, the burden of proving its execution was 
 clearly thrown upon appellants, and was not shifted from them by their 
 making out a prima facie case. 
 
 2. "The deed purporting to have been executed by appellee and 
 her husband, apparently, was properly acknowledged and recorded. 
 We cannot hold, however, that the certificate of acknowledgment is 
 conclusive upon appellee. . . . We think, however, that under our 
 statutes since 1852, a certificate of acknowledgment in proper form 
 makes a prima facie case in favor of the execution of the instrument, 
 not only as to innocent third parties, but as to the parties to the in- 
 strument also. The statutes require that deeds shall be acknowledged. 
 To entitle a deed to be recorded it must be acknowledged. ... A 
 record of a deed without such acknowledgment is not competent evi- 
 dence against any one. An acknowledgment is not essential to the 
 validity of a deed, as between the parties to it, but it is apparent upon 
 an examination of the statutes that, as to all parties, it is a very im- 
 portant matter. It is essential to the record of a deed, and thus be- 
 comes the basis of notice by record. The deed may be recorded; the 
 record becomes notice to the world, and may be used as evidence, with- 
 out the production of the deed or proof of its execution, because the 
 acknowledgpnent is evidence of the execution. ... It is provided, how- 
 
774 JUDICIAL ADMISSIONS. No. 647. 
 
 ever, that neither the certificate of acknowledgment of a deed, nor the 
 record, nor the transcript of the record thereof, shall be conclusive, but 
 may be rebutted, and the force and effect thereof, contested by any one 
 affected thereby. I R. S. 1876, p, 368, section 32; section 2954, R. S. 
 1 88 1. The reasonable construction of these several sections of the sta- 
 tute is, we think, that the certificate of acknowledgment is prima facie 
 evidence of the execution of the deed, and that in all cases where the 
 record is competent evidence, the deed is also competent, without further 
 proof of its execution. •»• 
 
 "This, however, does not throw the burden of proof upon the party 
 denying the execution. In this case appellants produced the deed, as- 
 serting its genuineness. That was denied by appellee. Appellants had 
 the affirmative of the issue, and were bound to establish it by a pre- 
 ponderance of testimony or suffer defeat. The certificate of acknowl- 
 edgment operated as evidence in support of the genuineness of the 
 deed, and made a prima facie case for appellants, very much as the 
 presumption of sanity operates as evidence in behalf of the State in 
 criminal prosecutions. The burden was upon appellee to meet and 
 overthrow the prima facie case, but the burden was not upon her to 
 prove the non-execution of the deed. The Court below did not err, 
 therefore, in charging the jury that the burden was upon appellants to 
 prove by a preponderance of the testimony that appellee executed the 
 deed." 
 
APPENDIX OF STATUTES. 775 
 
 APPENDIX I. 
 
 TYPICAL STATUTES AFFECTING THE QUALI- 
 FICATIONS OF WITNESSE.S^ 
 
 ENGLAND. 
 
 1814, St. 54 Geo. Ill, c. lyo (rated inhabitants of parish, etc., are to 
 be competent in certain cases). 
 
 I&32, St. 3 & 4 Wm. IV, c. 42 (removes the disqualification by reason 
 of a verdict being usable for or against the witness). 
 
 1840, St. 2 &■ 4 Vict. c. 26 (similar to St. 1814). 
 
 1842, St. 6 & J Vict. c. 85, Lord Denman's Act: "Whereas the in- 
 quiry after truth in courts of justice is often obstructed by incapacities 
 created by the present law, and it is desirable that full information as to 
 the facts in issue, both in criminal and in civil cases, should be laid be- 
 fore the persons who are appointed to decide upon them, and that such 
 persons should exercise their judgment on the credit of the witnesses 
 adduced and on the truth of their testimony. Now therefore be it 
 enacted. That no person offered as a witness shall hereafter be excluded 
 by reason of incapacity from crime or interest from giving evidence," 
 provided that this shall not render competent "any party to any suit," 
 "or the husband or wife of such person." 
 
 1846, St. p &• 10 Vict. c. PS : In suits in the county courts, "the par- 
 ties thereto, their wives and all other persons" may be examined. 
 
 1831, St. 14 & 15 Vict. c. pp, % I (St. 6 & 7 Vict, repealed as to 
 the proviso about parties) ; § 2 (parties, and persons on whose behalf 
 a suit is brought or defended, are to be competent and compellable) ; § 3 
 (a person charged with an offence indictable or punishable with sum- 
 mary conviction, is not to be affected by statute; neither husband nor 
 wife is to be "competent or compellable to give evidence for or against" 
 the other in criminal proceedings) ; § 4 (an action for breach of promise 
 of marriage or in consequence of adultery is not to be affected). 
 
 I — The rules of the common law re- to place here, for reference, under the 
 specting the qualifications of witnesses different topics, certain typical statutes af- 
 were highly restrictive. In the progress fecting the qualifications of witnesses as 
 of thought, these restrictions came in to organic and emotional capacity, i. e. 
 many instances to be recognized as il- insanity, infancy, infamy, interst, and mar- 
 liberal and unnecessary; and legislation has ital relationship. The statutes which af- 
 in several important respects abolished feet other rules of testimonial evidence, 
 them either wholly or in part. The stat- notably the privileged topics of testi- 
 utes aflFecting these changes have often mony, are not here included so far as 
 embodied in the same enactment the they are grammatically separable, 
 change of diverse rules. It is convenient 
 
77& APPENDIX OF STATUTES. 
 
 1S53, St. 16 & 17 Vict. c. 83, § i: "Husbands and wives of the 
 parties" shall be competent and compellable to testify "on behalf of 
 either or any of the parties." § 2: But nothing shall render husband 
 or wife competent or compellable to testify for or against the other "in 
 any criminal proceeding or in any proceeding instituted in consequence 
 of adultery." § 3: Neither shall be "compellable to disclose any com- 
 munication made to" him or her by the other "during the marriage." 
 
 i8jp, St. 22 & 23 Vict. c. 61, § 6 (on a wife's petition for divorce 
 founded on adultery, coupled with cruelty or desertion, both husband 
 and wife are competent and compellable as to the cruelty or desertion). 
 
 i86c), St. 22 &• 33 Vict. c. 68: "Whereas the discovery of truth in 
 courts of justice has been signally promoted by the removal of the re- 
 strictions on the admissibility of witnesses and it is expedient to amend 
 the law of evidence with the object of still further promoting such dis- 
 covery." § 2 (parties to an action for breach of marriage promise 
 are competent). § 3 (parties to any proceeding in consequence of 
 adultery, and their husbands and wives, are to be competent; but no 
 answer as to a witness' own adultery is to be compellable, unless the 
 witness has already testified in disproof thereof). 
 
 i8'7';r, St. 40 & 41 Vict. c. 14 (on an indictment or proceeding to try 
 or enforce a civil right only, the defendant, and the defendant's wife or 
 husband, are to be competent and compellable). 
 
 1885, St. 48-p Vict. c. 6p, ^4: In prosecutions for rape under age, 
 where the girl in question, "or any other child of tender years" does 
 not in the Court's opinion understand the nature of an oath, the child's 
 evidence may be given without oath, if in the Court's opinion the child 
 "is possessed of sufficient intelligence to justify the reception of the evi- 
 dence and understands the duty of speaking the truth"; with a proviso 
 requiring corroboration. 
 
 i88p, St. 52-3 Vict. 44, § 8 (similar). 
 
 iSqS, St. 61 & 62 Vict. c. 36, § j; "Every person charged with an 
 offence, and the wife or husband, as the case may be, of the person 
 charged, shall be a competent witness for the defence at every stage of 
 the proceedings"; the accused thus testifying, "shall not be asked, and 
 if asked shall not be required to answer, any question tending to show 
 that he has committed or been convicted or been charged with any of- 
 fence other than that wherewith he is then charged." 
 
 UNITED STATES FEDERAL CONGRESS. 
 
 Revised Statutes, 1878, § 858: "In the courts of the United States, 
 no witness shall be excluded in any action on account of color, or in any 
 civil action because he is a party to or interested in the issue tried; 
 
FEDERAL. 777 
 
 provided, that in actions by or against executors, administrators, or 
 guardians, in which judgment may be rendered for or against them, 
 neither party shall be allowed to testify against the other, as to any 
 transaction with or statement by the testator, intestate, or ward, unless 
 called to testify thereto by the opposite party, or required to tes- 
 tify thereto by the Court. In all other respects, the laws of the 
 State in which the Court is held shall be the rules of decision as to 
 the competency of witnesses in the courts of the United States in trials 
 at common law and in equity and admiralty." 
 
 lb. § ±078: "No witness shall be excluded in any suit in the Court 
 of Claims on account of color." 
 
 lb. § 1079: "No claimant, nor any person from or through whom 
 any such claimant derives his alleged title, claim, or right against the 
 United States, nor any person interested in any such title, claim, or 
 right, shall be a competent witness in the Court of Claims in supporting 
 the same, and no testimony given by such claimant or person shall be 
 used except as provided in the next section [i. e., when taken and 
 offered by the government attorney] "; repealed by St. 1883, infra. 
 
 lb. § 1977: "All persons within the jurisdiction of the United States 
 shall have the same right in every State and Territory to . . . give evi- 
 dence ... as is enjoyed by white citizens." 
 
 lb. § 2140: "Indians shall be competent witnesses" in all cases 
 concerning illegal sale of liquor to Indians. 
 
 lb. § 5392: Every person guilty of perjury or subornation of perjury 
 shall "be incapable of giving testimony" until judgment is reversed. 
 
 St. 1903, Feb. 5, c. 487, § 7, 32 Stat. L. 798: The Bankruptcy Act, 
 1898, § 21, subd. a, amended so as to permit the Court "to require any 
 designated person, including the bankrupt and his wife," to appear for 
 examination "concerning the acts, conduct, or property of a bankrupt 
 whose estate is in process of administration under this Act; provided 
 that the wife may be examined only touching business transacted by her 
 or to which she is a party, and to determine the fact whether she has 
 transacted or been a party to any business of the bankrupt." 
 
 St. 1874, June 22, c. 391, § 8: "No officer, or other person entitled 
 to or claiming compensation under any provision of this act [against 
 evading customs laws] shall be thereby disqualified from becoming a 
 witness in any action, suit, or proceeding for the recovery, mitigation, 
 or remission thereof," and the defendant may testify. 
 
 St. i8y8, March 16, c. 37: "In the trial of all indictments, informa- 
 tions, complaints, and other proceedings against persons charged with 
 the commission of crimes, offences, and misdemeanors, in the Unit«i 
 States courts, territorial courts, and courts martial, and courts of in- 
 quiry, in any State or Territory, including the District of Columbia, the 
 
778 APPENDIX OF STATUTES. 
 
 person so charged shall, at his own request but not otherwise, be a com- 
 petent witness. And his failure to make such request shall not create 
 any presumption against him.'' 
 
 St. 1883, March 3, c. 116, § 6: In cases in the Court of Claims, no 
 person is to be excluded "because he or she is a party to or interested in 
 the same." 
 
 St. 188^, March j, c. 359, § 8 (similar; adding "any plaintiff or 
 party in interest may be examined as a witness on the part of the gov- 
 ernment"; § 1079 of Rev. St. 1878, repealed). 
 
 St. 188^, March 3 c. 397, § i : "In any proceeding or examination 
 before a grand jury, a judge, justice, or a United States commissioner, 
 or a court, in any prosecution for bigamy, polygamy, or unlawful co- 
 habitation, under any statute of the United States, the lawful husband 
 or wife of the accused shall be a competent witness, and may be called, 
 but shall not be compelled to testify in such proceeding, examination, 
 or prosecution, without the consent of the husband or wife, as the case 
 may be. And such witness shall not be permitted to testify as to any 
 statement or communication made by either husband or wife to each 
 other, during the existence of the marriage relation, deemed confidential 
 at common law." 
 
 CALIFORNIA.! 
 
 Code of Civil Procedure, 1872, § 1879: "All persons, without ex- 
 ception, otherwise than is specified in the next two sections, who, having 
 organs of sense, can perceive, and, perceiving, can make known their 
 perceptions to others, may be witnesses. Therefore, neither parties 
 nor other persons who have an interest in the event of an action or 
 proceeding are excluded; nor those who have been convicted of crime; 
 nor persons on account of their opinions on matters of religious belief; 
 although in every case the credibility of the witness may be drawn in 
 question, as provided in section 1847." 
 
 Ih. § 1880: "The following persons cannot be witnesses: I. Those 
 who are of unsound mind at the time of their production for examina- 
 tion. 2. Children under ten years of age, who appear incapable of re- 
 ceiving just impressions of the facts respecting which they are exam- 
 ined, or of relating them truly. 3. Parties or assignors of parties to an 
 action or proceeding, or persons on behalf of whom an action or pro- 
 ceeding is prosecuted, against an executor or administrator upon a claim 
 
 1 — All the Code Commissioners' amend- Dunne, 134 Cal. 291, ^6 Pac. 478; but 
 
 ments of 1901 were held unconstitutional they have been inserted here, because they 
 
 and void (on formal grounds affecting the may later be validly enacted. 
 Commissioners' authority), in Lewis v. 
 
CALIFORNIA. 779 
 
 or demand against the estate of a deceased person, as to any matter of 
 fact occurring before the death of such deceased person." The foregoing 
 sub-sect. 3 was replaced in 1901 by the following Commissioners' amend- 
 ment: "Upon the trial of an action or the hearing upon the merits 
 of a special proceeding, a party or a person interested in the event, or 
 a person from, through, or under whom such party or interested person 
 derives his interest or title, by assignment or otherwise, or the husband 
 or wife of any such party or person, must not be examined as a wit- 
 ness, in his own behalf or interest, or in behalf of the party succeeding 
 to his title or interest, or in behalf of his or her husband or wife, against 
 the executor, administrator, or survivor of a deceased person, or the 
 guardian of an incompetent person, or a person deriving his title or 
 interest from, through, or under a deceased or incompetent person by 
 assignment or otherwise, as to any matter of fact occurring during 
 the lifetime of such deceased person, or occurring while such incom- 
 petent person was competent." 
 
 lb. § 1881 : "There are particular relations in which it is the policy 
 of the law to encourage confidence and to preserve it inviolate; there- 
 fore, a person cannot be examined as a witness in the following cases: 
 I. A husband cannot be examined for or against his wife, without her 
 consent, nor a wife for or against her husband, without his consent; 
 nor can either, during the marriage or afterwards, be, without the con- 
 sent of the other, examined as to any communication made by one to the 
 other during the marriage; but this exception does not apply to a civil 
 action or proceeding by one against the other, nor to a criminal action 
 or proceeding for a crime committed by one against the other" ; the 
 amendments to § 1881, added by the Commissioners in 1901, concern the 
 respective privileges involved. 
 
 Penal Code, iSys, § 675 (imprisonment suspending or extinguishing 
 ■civil rights does not create incompetency as witness in criminal case). 
 
 Ih. §§ 1099, iioo (joint indictment of two or more; the Court may 
 order discharge of one, to be witness for the prosecution, before the 
 defence is gone into, and must order the discharge of one, to be witness 
 for a co-defendant, before close of evidence, if there is not sufficient 
 evidence to put him on his defence). 
 
 lb. § II 02: "The rules of evidence in civil actions are applicable 
 also to criminal actions, except as otherwise provided in this code." 
 
 lb. § 1322: "Except with the consent of both, or in cases of crim- 
 inal violence upon one by the other, neither husband nor wife is a com- 
 petent witness for or against the other in a criminal action or proceed- 
 ing to which one or both are parties." 
 
 lb. § 1323: If the accused "offer himself as a witness, he may be 
 ■cross-examined by the counsel for the people as to all matters about 
 
780 APPENDIX OF STATUTES. 
 
 which he was examined in chief;" "his neglect or refusal to be a wit- 
 ness cannot in any manner prejudice him nor be used against him on 
 the trial or proceeding." 
 
 COLORADO. 
 
 Annotated Statutes, 1891, § 185 (insolvent assignments; the debtor's 
 wife may be compelled to testify). 
 
 § 1 1 68: "An accessory during the fact shall be a competent witness," 
 unless otherwise disqualified. 
 
 § 1 170: "The party or parties injured shall in all cases be competent 
 witnesses, unless he, she, or they shall be rendered incompetent by rea- 
 son of his, her, or their infamy or other legal incompetency other than 
 that of interest. The credibility of all such witnesses shall be left to the 
 jury as in other cases." 
 
 § 1 171: "Hereafter in all criminal cases tried in any Court of this 
 State, the accused, if he so desire, shall be sworn as a witness in the 
 case, and the jury shall give his t&stiniony such weight as they think 
 it deserves; but in no case shall a neglect or refusal of the accused to 
 testify be taken or considered any evidence of his guilt or innocence." 
 
 § 1 172: "Approvers shall not be allowed to give testimony." 
 
 § 1 173: "The solemn affirmation of witnesses shall be deemed suffi- 
 cient." 
 
 § 2780 (on preliminary examination the accused may make a state- 
 ment, under oath or otherwise, "after all witnesses have been heard.") 
 
 § 3382: A married woman becoming special partner in a limited 
 firm "shall be a competent witness for or against her husband, the same 
 as though a femme sole" in all proceedings arising out of partnership. 
 
 § 4785 : "No person making a claim against the estate of any testator 
 or intestate shall be permitted to prove the same by his or her own 
 oath," except as in § 4782, for uncontested claims. 
 
 §4816: "That no party to any civil action, suit, or proceeding, or 
 person directly interested in the event thereof, shall be allowed to tes- 
 tify therein of his own motion, or in his own behalf, by virtue of the 
 foregoing section [now § 4822] when any adverse party sues or defends 
 as the trustee or conservator of an idiot, lunatic, or distracted person, 
 or as the executor or administrator, heir, legatee, or devisee of any 
 deceased person, or as guardian or trustee of any such heir, legatee, or 
 devisee, unless when called as a witness by such adverse party so suing 
 or defending; and also, except in the following cases, namely: First: 
 In any such action, suit, or proceeding, a party or interested person may 
 testify to facts occurring after the death of such deceased person; 
 Second: When in such action, suit or proceeding, any agent of any 
 
COLORADO. 781 
 
 deceased person shall, in behalf of any person or persons suing or being 
 sued, in either of the capacities above named, testify to any conversa- 
 tion or transaction between agent and the opposite party or parties in 
 interest, such party or parties in interest may testify concerning the 
 same conversation or transaction; Third: When in any such action, 
 suit, or proceeding, any such party suing or defending as aforesaid, or 
 any person having a direct interest in the event of such action, suit, or 
 proceeding, shall testify in behalf of such party so suing or defending, 
 to any conversion or transaction with the opposite party or parties in 
 interest, then such opposite party in interest shall also be permitted to 
 testify as to the same conversation or transaction; Fourth: When in 
 any such action, suit, or proceeding, any witness not a party to the rec- 
 ord, or not a party in interest, or not an agent of such deceased person, 
 shall in behalf of any party to such action, suit, or proceeding, testify to 
 any conversation or admission by any adverse party or parties in in- 
 terest, occurring before the death and in the absence of such deceased 
 person, such adverse party or parties in interest may also testify to 
 the same admission or conversation; Fifth: When in any such action, 
 suit, or proceeding, the deposition of such deceased person shall be read 
 in evidence at the trial, any adverse party or parties in interest may 
 testify as to all matters and things testified to in such deposition by such 
 deceased person, and not excluded for irrelevancy or incompetency." 
 
 § 4818 : "That in any action, suit, or proceeding, by or against any 
 surviving partner or partners, joint contractor or contractors, no adverse 
 party or person adversely interested in the event thereof, shall, by virtue 
 of section one of this act, be rendered a competent witness to testify to 
 any admission or conversation by any deceased partner or joint con- 
 tractor, unless some one or more of the surviving partners or joint con- 
 tractoi-s were also present at the time of. such admission or conversa- 
 tion." 
 
 §4819 (an assignment or release "made for the purpose of allowing 
 such person to testify" does not make him competent under §§ 4816, 
 4817). 
 
 §4820 (the statute is not to affect the law in regard to the settle- 
 ment of estates of deceased persons, etc., or to the acknowledgment or 
 proof of deeds, or to the attestation of instruments required to be at- 
 tested). 
 
 § 4822 : "All persons, without exception, other than those specified 
 in the next three sections, and in the second, third, fourth, seventh, and 
 eighth sections of chapter one hundred and four of the general laws, may 
 be witnesses. IsTeither parties nor other persons who have an interest 
 in the event or proceeding shall be excluded; nor those who have been 
 convicted ~of crime; nor persons on account of their opinions on matters 
 
782 APPENDIX OF STATUTES. 
 
 of religious belief; although in every case the credibility of the witness 
 may be drawn in question, as now provided by law, but the conviction 
 of any person for any crime may be shown for the purpose of affecting 
 the credibility of such witness; and the fact of such conviction may be 
 proved like any other fact not of record, either by the witness himself 
 (who shall be compelled to testify thereto), or by any other person 
 cognizant of such conviction, as impeaching testimony or by any other 
 competent testimony." 
 
 § 4823: "The following persons shall not be witnesses: i. Those 
 who are of unsound mind at the time of their production for examina- 
 tion. 2. Children under ten years of age who appear incapable of re- 
 ceiving just impressions of the facts respecting which they are examined 
 or of relating them truly." 
 
 § 4824: "There are particular relations in which it is the policy of 
 the law to encourage confidence and to preserve it inviolate; therefore 
 a person shall not be examined as a witness in the following cases: 
 I. A husband shall not be examined for or against his wife without 
 her consent, nor a wife for or against her husband without his consent; 
 nor shall either during the marriage or afterward be, without the 
 consent of the other, examined as to any communication made by one 
 to the other during marriage; but this exception does not apply to a 
 civil action or proceeding by one against the other, nor to a criminal 
 action or proceeding for a crime committed by one against the other." 
 
 § 4825: "If a person offer himself -as a witness, that is to be deemed 
 a consent to the examination; also the offer of a wife, husband, at- 
 torney, clergyman) physician, or surgeon, as a witness, shall be deemed 
 a consent to the examination within the meaning of the first four sub- 
 divisions of the last section.'' 
 
 St. i8p3, p. izy, § 3 (in a prosecution for a failure to support, the 
 wife is competent against the husband without his consent). 
 
 CONNECTICUT. 
 
 General Statutes, 1887, § 1094: "In actions by or against the repre- 
 sentatives of deceased persons, the entries, memoranda, and declarations 
 of the deceased, relevant to the matter in issue, may be received as 
 evidence; and in actions by or against the representatives of deceased 
 persons, in which any trustee or receiver is an adverse party, the testi- 
 mony of the deceased, relevant to the matter in issue, given at his ex- 
 amination, upon the application of said trustee or receiver, shall be 
 received in evidence." 
 
 § 1097: "A wife shall be a competent witness against her husband 
 
COLORADO; CONNECTICUT; GEORGIA. 783 
 
 in any action brought against him for necessaries furnished her while 
 living apart from him." 
 
 § 1098: "No person shall be disqualified as a witness in any action 
 by reason of his interest in the event of the same as a party or other- 
 wise, or of his disbelief in the existence of a Supreme Being, or of 
 his conviction of crime; but such interest or conviction may be shown 
 for the purpose of affecting his credit." 
 
 § 1099 : Any party to a civil action may compel any adverse party or 
 "any person for whose immediate and adverse benefit" the action was 
 begun, etc., to testify; but not compel both discovery and testimony 
 from the same party. 
 
 § 1623 : "Any person on trial for crime shall be a competent wit- 
 ness, and at his or her option may testify or refuse to testify, upon 
 such trial, and if such person has a husband or wife, he or she shall be 
 a competent witness, but may elect or refuse to testify for or against 
 the accused, except that a wife when she has received personal violence 
 from her husband, may, upon his trial therefor, be compelled to testify 
 in the same manner as any other witness. The neglect, or refusal, of 
 an accused party to testify shall not be commented upon to the Court or 
 jury." 
 
 GEORGIA. 
 
 Code i8p5, § 5198 (i) : "Communications between husband and 
 wife" are excluded. 
 
 lb. § 5268: "Religious belief goes only to the credit." 
 lb. § 5269: "No person offered as a witness shall be excluded by 
 reason of incapacity, for crime or interest, or from being a party, from 
 giving evidence, either in person or by deposition [in any court or pro- 
 ceeding] . . . ; but every person so offered shall be competent, and 
 compellable to give evidence on behalf of either or any of the parties 
 to the said suit, action, or other proceeding, except as follows: 1. Where 
 any suit is instituted or defended by a person insane at the time of the 
 trial, or by an indorsee, assignee, transferee, or by the personal repre- 
 sentative of a deceased person, the opposite party shall not be admitted 
 to testify in his own favor against the insane or deceased person, as to 
 transactions or communications with such insane or deceased person. 
 2. Where any suit is instituted or defended by partners, persons jointly 
 liable, or interested, the opposite party shall not be admitted to testify in 
 his own favor as to transactions or communications solely with an insane 
 or deceased partner, or person jointly liable or interested. 3. Where 
 any suit is instituted or defended by a corporation, the opposite party 
 shall not be admitted to testify in his own behalf to transactions or 
 communications solely with a deceased or insane officer or agent of the 
 
784 APPENDIX OF STATUTES. 
 
 corporation. 4. Where a person not a party, but a person interested in 
 the result of the suit, is offered as a witness, he shall not be competent 
 to testify, if, as a party to the cause, he would for any cause be in- 
 competent. 5. No agent or attorney-at-law of the surviving or sane 
 party, at the time of the transaction testified about, shall be allowed to 
 testify in favor of a surviving or sane party, under circumstances where 
 the principal, a party to the cause, could not testify; nor can a surviv- 
 ing party or agent testify in his own favor or in favor of a surviving 
 or sane party, as to transactions or communications with a deceased 
 or insane agent, under circumstances where such witness would be in- 
 competent if deceased agent had been principal. 6. In all cases where 
 the personal representative of the deceased or insane party has intro- 
 duced a witness interested in the event of a suit, who has testified as to 
 transactions or communications on the part of the surviving agent or 
 party with a deceased or insane party or agent, the surviving party or 
 his agent, may be examined in reference to such facts testified to by said 
 witness'' ; amended by Acts 1900, p. 57, Van Epps' Suppl. § 6200, by 
 adding: "whether such transactions or communications were had by 
 such insane or deceased person with the party testifying or with any 
 other person." 
 
 Acts iS^y, p. 53, Van Epps' Suppl. § 6222: "When suit is insti- 
 tuted against joint defendants, one of whom is the representative of an 
 insane or deceased person, the sane or living party defendant shall not 
 be admitted to testify as to any transaction or communication with the 
 insane or deceased party, when his evidence would tend to relieve or 
 modify the liability of the party offered as a witness and tend to make 
 the estate of said insane or deceased party primarily liable for the debt 
 or default." 
 
 Code iSg^, § 5270: "There shall be no other exceptions allowed 
 under the foregoing paragp-aphs." 
 
 lb. § 5272: "Nothing contained in section 5269 shall apply to any 
 action, suit, or proceeding in any Court, instituted m consequence of 
 adultery, or to any action for breach of promise of marriage." 
 
 Ih. § 5273: "Persons who have not the use of reason, as idiots, 
 lunatics during lunacy, and children who do not understand the nature 
 of an oath, are incompetent witnesses.'' 
 
 Ih. § 5274: "Drunkenness, which dethrones reason and memory, in- 
 capacitates during its continuance." 
 
 Ih. § 5275: "No physical defects in any of the senses incapacitates 
 a witness. An interpreter may explain his evidence." 
 
 Ih. § 5276: "The Court must, by examination, decide upon the ca- 
 pacity of one alleged to be incompetent from idiocy, lunacy, or insanity, 
 or drunkenness, or childhood." 
 
GEORGIA; ILLINOIS. 785 
 
 Criminal Code, i8p5, §§ loio, loii: "In all criminal trials the pris- 
 oner shall have the right to make to the Court and jury such statement 
 in the case as he may deem proper in his defence. It shall not be under 
 oath, and shall have such force only as the jury may think right to 
 give it. They may believe it in preference to the sworn testimony in 
 the cause" ; but in so making a statement, he is not compellable "to 
 answer any questions on cross-examination, should he think proper to 
 decline an answer"; "no person, who in any criminal proceeding is 
 charged with the commission of any indictable offence, or any offence 
 punishable on summary conviction, is competent or compellable to give 
 evidence for or against himself." 
 
 lb. § loii (4) : "Husband and wife shall not be competent or com- 
 pellable to give evidence in criminal proceeding for or against each 
 other, except that the wife shall be competent, but not compellable, to 
 testify against her husband, upon his trial for any criminal offence com- 
 mitted, or attempted to have been committed, upon her person. She is 
 also a competent witness to testify for or against her husband, in cases 
 of abandonment of his child, as provided for in § 114 of this Code." 
 
 lb. § 104 (the wife is to be a "competent witness," when the husband 
 is tried for maltreatment of wife). 
 
 lb. § 910 (the accused's statement before a magistrate regulated). 
 
 ILLINOIS. 
 
 Revised Statutes, 1874, c. 17, § 6 (in bastardy trials, "the mother 
 and defendant" are competent). 
 
 lb. c. 38, § 35 : When a witness is released by Court order from 
 liability to prosecution, and compelled to testify, "the defendant shall 
 also at his own request be deemed a competent witness"; but no infer- 
 ence shall be drawn, as in ib. § 426. 
 
 lb. c. 38, § 426: "No person shall be disqualified as a witness in 
 any criminal case or proceeding by reason of his interest in the event 
 of the same, as a party or otherwise, or by reason of his having been 
 convicted of any crime, but such interest or conviction may be shown 
 for the purpose of affecting his credibility; provided, however, that a 
 ■defendant in any criminal case or proceeding shall only at his own 
 request be deemed a competent witness, and his neglect to testify shall 
 not create any presumption against him, nor shall the Court permit any 
 reference or comment to be made to or upon such neglect." 
 
 Ib. c. 38, § 491, St. i8p3, June 17: The wife is to be cornpetent in 
 any case against the husband under the statute punishing abandonment 
 of family, "as to any and all matters relevant thereto, including the 
 :fact of such marriage and the parentage of such children." 
 
786 APPENDIX OF STATUTES. 
 
 St. 1901, May II, § 3 : In prosecutions for abandonment of wife 
 or child, "such husband or wife shall be a competent witness to testify 
 in any case brought against the one or the other under this act, and to 
 any and all matters relevant thereto, including the facts of such mar- 
 riage and the parentage of such child or children." 
 
 Rev. St. 1874, c. 51, § i: "No person shall be disqualified as a wit- 
 ness in any civil action, suit, or proceeding, except as hereinafter stated, 
 by reason of his or her interest in the event thereof, as a party or other- 
 wise, or by reason of his or her conviction of any crime; but such 
 interest or conviction may be shown for the purpose of affecting the 
 credibility of such witness; and the fact of such conviction may be 
 proven like any fact not of record, either by the witness himself (who 
 shall be compelled to testify thereto) or by any other witness cognizant 
 of such conviction, as impeaching testimony, or by any other competent 
 evidence." 
 
 /&. § 2 : "No party to any civil action, suit, or proceeding, or person 
 directly interested in the event thereof, shall be allowed to testify therein 
 of his own motion, or in his own behalf, by virtue of the foregoing 
 section, when any adverse party sues or defends as the trustee or con- 
 servator of any idiot, habitual drunkard, lunatic, or distracted person, 
 or as the executor, administrator, heir, legatee, or devisee of any de- 
 ceased perspn, or as guardian or trustee of any such heir, legatee, or 
 devisee, unless when called as a witness by such adverse party so 
 suing or defending, and also except in the following cases, namely: — 
 First. In any such event, suit, or proceeding, a party or interested per- 
 son may testify to facts occurring after the death of such deceased 
 person, or after the ward, heir, legatee, or devisee shall have attained 
 his or her majority. Second. When, in such action, suit, or proceeding, 
 any agent of any deceased person shall, in behalf of any person or per- 
 sons suing or being sued, in either of the capacities above named, testify 
 to any conversation or transaction between such agent and the opposite 
 party or part in interest, such opposite party or party in interest may 
 testify concerning the same conversation or transaction. Third. Where, 
 in any such action, suit, or proceeding, any such party suing or de- 
 fending, as aforesaid, or any person having a direct interest in the 
 event of such action, suit, or proceeding, shall testify in behalf of such 
 party so suing or defending, to any conversation or transaction with the 
 opposite party or party in interest, then such opposite party or party in 
 interest shall also be permitted to testify as to the same conversation or 
 transaction. Fourth. Where, in any such action, suit, or proceeding, 
 any witness, not a party to the record, or not a party in interest, or not 
 an agent of such deceased person, shall, in behalf of any party to such 
 action, suit, or proceeding, testify to any conversation or admissioa 
 
ILLINOIS. 787 
 
 by any adverse party or party in interest, occurring before the death 
 and in the absence of such deceased person, such adverse party or 
 party in interest may also testify as to the same admission or conversa- 
 tion. Fifth. Where, in any such action, suit, or proceeding, the deposi- 
 tion of such deceased person shall be read in evidence at the trial, any 
 adverse party or party in interest may testify as to all matters and things 
 testified to in such deposition by such deceased person, and not excluded 
 tor irrelevancy or incompetency." 
 
 lb. §4: "In any action, suit, or proceeding, by or against any sur- 
 viving partner or partners, joint contractor or contractors, no adverse 
 party, or party adversely interested in the event thereof, shall, by virtue 
 of section i of this Act, be rendered a competent witness, to testify 
 to any admission or conversation, by any deceased partner or joint 
 contractor, unless some one or more of the surviving partners or joint 
 contractors w^ere also present at the time of such admission or conversa- 
 tion ; and in every action, suit, or proceeding, a party to the same, 
 Vfho has contracted with an agent of the adverse party, the agent having 
 since died, shall not be a competent witness, as to any conversation or 
 transaction between himself and such agent, except where the condi- 
 tions are such, that under the provisions of sections 2 and 3 of this 
 Act, he would have been permitted to testify, if the deceased person 
 had been a principal and not an agent" ; amended by St. 1899, April 24, 
 by inserting after "such agent," the words, "unless such admission or 
 conversation with the said deceased agent was had or made in the pres- 
 ence of a surviving agent or agents of such adverse party, and then 
 only." 
 
 lb. § 5 : "No husband or wife shall, by virtue of section i of this 
 Act, be rendered competent to testify for or against each other as to 
 any transaction or conversation, occurring during the marriage, whether 
 called as a witness during the existence of the marriage, or after its 
 dissolution, except in cases where the wife would, if unmarried, be 
 plaintiff or defendant, or where the cause of action grows out of a per- 
 sonal wrong or injury done by one to the other or grows out of the 
 neglect of the husband to furnish the wife with a suitable support; and 
 except in cases where the litigation shall be concerning the separate 
 property of the wife, and suits for divorce; and except also in actions 
 upon policies of insurance of property, so far as relates to the amount 
 and value of the property alleged to be injured or destroyed, or in ac- 
 tions against carriers, so far as relates to the loss of property and the 
 amount and value thereof, or in all matters of business transactions 
 where the transaction was had and conducted by such married woman 
 as the agent of her husband, in all of which cases the husband and wife 
 may testify for or against each other, in the same manner as other parties 
 
788 APPENDIX OP STATUTES. 
 
 may, under the provisions of this act. Provided, that nothing in this 
 section contained shall be construed to authorize or permit any such 
 husband or wife to testify to any admissions or conversations of the 
 other, whether made by him to her or by her to him, or by either to third 
 persons, except in suits or causes between such husband and wife." 
 
 lb. § 6 (quoted ante, No. 388 
 
 lb. § 7: "In any civil action, suit, or proceeding, no person who 
 would, if a party thereto, be incompetent to testify therein, under the 
 provisions of sections 2 or 3, shall become competent by reason of any 
 assignment or release of his claim, made for the purpose of allowing 
 such person to testify." 
 
 lb. § 8 (nothing in this Act is to affect the law as to the settlement 
 of the estates of deceased persons, incapables, etc., or the proof of con- 
 veyances for record, or the attestation of instruments required to be 
 attested). 
 
 IOWA. 
 
 Constitution, 1857, Art. I, § 4: "Any party to any judicial proceed- 
 ing shall have the right to use as a witness, or take the testimony of, 
 any other person, not disqualified on account of interest, who may be 
 cognizant of any fact material to the case; and parties to suits may 
 be witnesses, as provided by law." 
 
 Code, 18^7, § 4601 : "Every human being of sufficient capacity to 
 understand the obligation of an oath is a competent witness in all cases, 
 both civil and criminal, except as herein otherwise declared." 
 
 lb. § 4602: "Facts which have heretofore caused the exclusion of 
 testimony may still be shown for the purpose of lessening its credibility." 
 
 lb. § 4603 : "No person offered as a witness in any action or pro- 
 ceeding in any Court, or before any officer acting judicially, shall be 
 excluded by reason of his interest in the event of the action or proceed- 
 ing, or because he is a party thereto, except as provided in this chapter." 
 
 lb. § 4604: "No party to any action or proceeding, nor any person 
 interested in the event thereof, nor any person from, through, or under 
 whom apy such party or interested person derives any interest or title 
 by assignment or otherwise, and no husband or wife of any said party 
 or person, shall be examined as a witness in regard to any personal 
 transaction or communication between such witness and a person at the 
 commencement of such examination, deceased, insane, or lunatic ; against 
 the executor, administrator, heir-at-law, next of kin, assignee, legatee, 
 devisee, or survivor of such deceased person, or the assignee or guardian 
 of such insane person or lunatic. But this prohibition shall not extend 
 to any transaction or communication as to which any such executor. 
 
IOWA; MASSACHUSETTS. 789 
 
 administrator, heir-at-law, next of kin, assignee, legatee, devisee, sur- 
 vivor, or guardian shall be examined in his own behalf, or as to which 
 the testimony of such deceased or insane person or lunatic shall be 
 given in evidence." 
 
 lb. § 4606: "Neither the husband nor wife shall in any case be a 
 witness against the other, except in a criminal prosecution for a crime 
 committed one against the other, or in a civil action or proceeding one 
 against the other, or in a civil action by one against a third party for 
 alienating the affections of the other; but they may in all civil and 
 criminal cases be witnesses for each other"; amended by St. i8p8, zyth 
 Gen. Ass., c. 108, § i, by inserting after "affections of the other," the 
 words "'or in any civil action brought by a judgment creditor against 
 either the husband or the wife, to set aside a conveyance of property 
 from one to the other on the ground of want of consideration or fraud, 
 and to subject the same to the payment of his judgment." 
 
 Ih. § 4607: "Neither husband nor wife can be examined in any case 
 as to any communication made to the one by the other while married, 
 nor shall they, after the marriage relation ceases, be permitted to reveal 
 in testimony any such communication made while the marriage sub- 
 sisted." 
 
 lb. § 5484: "Defendants in all criminal proceedings shall be com- 
 petent witnesses in their own behalf, but cannot be called as witnesses 
 by the State; and should a defendant not elect to become a witness, 
 this fact shall not leave any weight against him on the trial, nor shall 
 the attorney or attorneys for the State, during the trial, refer to the 
 fact that the defendant did not testify in his own behalf; and should 
 they do so, such attorney or attorneys will be guilty of a misdemeanor, 
 and defendant shall for that cause alone be entitled to a new trial." 
 
 lb. § 5485 : A defendant taking the stand "shall be subject to cross- 
 examination as an ordinary witness, but the State shall be strictly con- 
 fined therein to the matters testified to in the examination in chief." 
 
 MASSACHUSETTS. 
 Revised Laws, 1902, c. 175, § 20: "No person of sufficient under- 
 standing, whether a party or otherwise, shall be excluded from giving 
 evidence in any proceeding, civil or criminal, in court, or before a 
 person having authority to receive evidence, except in the following 
 cases : First, neither husband nor wife shall be allowed to testify as 
 to private conversations with each other; Second, neither husband nor 
 wife shall be compelled to be a witness on any trial upon an indict- 
 ment, complaint, or other criminal proceeding, against the other; Third, 
 in the trial of all indictments, complaints, and other proceedings against 
 
790 APPENDIX OF STATUTES. 
 
 persons charged with the commission of crimes or offences, a person 
 so charged shall at his own request, but not otherwise, be deemed a 
 competent witness ; and his neglect or refusal to testify shall not create 
 any presumption against him." 
 
 lb. § 21 : "The conviction of a witness of crime may be shown to 
 affect his credibility." 
 
 MICHIGAN. 
 
 Compiled Laws, 1897, c. 282, § 99: "No person shall be excluded 
 from giving evidence in any matter, civil or criminal, by reason of 
 crime, or for any interest of such person in the matter, suit, or pro- 
 ceeding in which such testimony may be offered, or by reason of mari- 
 tal or other relationship to any party thereto; but such interest, rela- 
 tionship, or conviction of crime may be shown for the purpose of draw- 
 ing in question the credibility of such witness, except as is hereafter 
 provided." 
 
 lb. § 100: "On the trial of any issue joined, or in any matter, suit; 
 or proceeding, in any court, or before any officer or person having, 
 by law or by consent of parties, authority to hear, receive, and examine 
 evidence, the parties to any such suit or proceeding named in the record, 
 and persons for whose benefit such suit is prosecuted or defended, may 
 be witnesses therein, in their own behalf or otherwise, in the same 
 manner as otherwise, except as hereinafter otherwise provided ; and 
 the deposition of any such party or person may be taken and used in 
 evidence under the rules and statutes governing depositions, and any 
 such party or person may be proceeded against, and compelled to attend 
 and testify, as provided by law for other witnesses. No person shall 
 be disqualified in any criminal case or proceeding, by reason of his inter- 
 est in the event of the same as a party or otherwise, or by reason of 
 his having been convicted of any crime; but such interest or convic- 
 tion may be shown for the purpose of affecting his credibility; pro- 
 vided, however, that a defendant in any criminal case or proceeding 
 shall only at his own request be deemed a competent witness, and his 
 neglect to testify shall not raise any presumption against him, nor shall 
 the Court permit any reference or comment be made to or upon such 
 neglect." 
 
 lb. § loi : "That when a suit or proceeding is prosecuted or de- 
 fended by the heirs, assigfnees, devisees, legatees, or personal repre- 
 sentatives of a deceased person, the opposite party, if examined as a 
 witness on his own behalf, shall not be admitted to testify at all to 
 matters which, if true, must have been equally within the knowledge 
 of such deceased person; and when any suit or proceeding is prose- 
 cuted or defended by any surviving partner or partners, the opposite 
 party, if examined as a witness in his own behalf, shall not be ad- 
 
MICHIGAN. 
 
 791 
 
 mitted to testify at all in relation to matters which, if true, must have 
 been equally within the knowledge of the deceased partner and not 
 within the knowledge of any one of the surviving partners. And 
 when any suit or proceeding is prosecuted or defended by any cor- 
 poration, the opposite party, if examined as a witness in his own be- 
 half, shall not be admitted to testify at all to matters which, if true, 
 must have been equally within the knowledge of a deceased officer or 
 agent of the corporation and not within the knowledge of any sur- 
 viving officer or agent of the corporation, nor when any suit or pro- 
 ceeding is prosecuted or defended by the heirs, assigns, devisees, lega- 
 tees, or personal representatives of a deceased person against a corpora- 
 tion, shall any person who is or has been an officer or agent of any 
 such corporation be allowed to testify at all in relation to matters 
 which, if true, must have been equally within the knowledge of such 
 deceased person; provided, that whenever the words, 'the opposite 
 party,' occur in this section, it shall be deemed to include the assignors 
 or assignees of the claim or any part thereof in controversy" ; amended 
 by St. 1901, No. 239, by inserting after ''surviving partners," the fol- 
 lowing: "No person who shall have acted as an agent in the making 
 or continuing of a contract with any person who may have died shall 
 be a competent witness, in any suit involving such contract, as to 
 matters occurring prior to the death of such decedent, on behalf of the 
 principal to such contract against the legal representatives or heirs of 
 such decedent, unless he shall be called by such heirs or legal repre- 
 sentatives." 
 
 lb. § 102 : "A husband shall not be examined as a witness, for or 
 against his wife, without her consent; nor a wife, for or against her 
 husband, without his consent, except in cases where the cause of action 
 grows out of a personal wrong or injury done by one to the- other, or 
 grows out of the refusal or neglect to furnish the wife or children 
 with suitable support within the meaning of Act No. 136 of the Ses- 
 sion Laws of 1883, and except in cases where the husband or wife shall 
 be a party to the record in a suit, action, or proceeding where the title 
 to the separate property of the husband or wife so called or offered 
 as a witness, or where the title to property derived from, through, or 
 under the husband or wife so called or offered as a witness, shall be 
 the subject-matter in controversy or litigation in such suit, action, or 
 proceeding, in opposition to the claims or interest of the other of said 
 married persons who is a party to the record in such suit, action, or 
 proceeding; and in all such cases, such husband or wife who makes 
 such claim of title, or under or from whom such title is derived, shall 
 be as competent to testify in relation to said separate property and 
 the title thereto, without the consent of said husband or wife, who is 
 a party to the record in such suit, action, or proceeding, as though such 
 marriage relation did not exist; nor shall either, during the marriage 
 or afterwards, without the consent of both, be examined as to anv 
 
792 APPENDIX OF STATUTES. 
 
 communication made by one to the other during the marriage; but in 
 any action or proceeding instituted by the husband or wife in conse- 
 quence of adultery the husband and wife shall not be competent to 
 testify." 
 
 Acts 1887, No. 82: "Whenever a child under the age of ten years 
 is produced as a witness the Court shall by an examination, made by 
 itself, publicly, or separate and apart, ascertain to its own satisfaction 
 whether such child has sufficient intelligence and sense of obligation 
 to tell the truth to be safely admitted to testify; and in such case such 
 testimony may be given on a promise to tell the truth instead of upon 
 oath or statutory affirmation, and shall be given such credit as to the 
 Court or jury, if there be a jury, it may appear tc( deserve." 
 
 Acts i8g'j. No. 212: "A husband may testify for or against his 
 wife without her consent, and a wife may testify for or against her hus- 
 band without his consent, in all criminal prosecutions for bigamy; 
 provided, however, that nothing herein contained shall be so construed 
 as to permit a husband or wife to testify against the other without 
 the consent of both concerning any communications made by one to 
 the other during the marriage." 
 
 Compiled Laws, § 8652, Howell's ed. : In divorce proceedings, either 
 party may elect to testify, but "such testimony shall not be received 
 in support or in defence of a charge of adultery," 
 
 MINNESOTA. 
 
 General Statutes, 1894, §§ 642, 1191 (inhabitants in a city or 
 county, not to be disqualified as such). 
 
 § 2007 (Indians to be competent in prosecution for unlawful sale, 
 etc., of liquor to Indian). 
 
 § 2561 (in actions by husband against savings bank for wife's 
 money, wife may be examined as if unmarried). 
 
 § 5658: "All persons, except as hereinafter provided, having the 
 power and faculty to perceive and make known their perceptions to 
 others, may be witnesses; neither parties nor other persons who 
 have an interest in the event of an action are excluded, nor those 
 who have been convicted of crime, nor persons on account of their 
 religious opinions or belief; although in every case the credibility 
 of the witnesses may be drawn in question. And on the trial of all 
 indictments, complaints, and other proceedings against persons charged 
 with the commission of crimes or offences, the person so charged shall 
 at his request, but not otherwise, be deemed a competent witness; 
 nor shall the neglect or refusal to testify create any presumption 
 against the defendant, nor shall such neglect be alluded to or com- 
 mented upon by the prosecuting attorney or by the Court." 
 
 § 5659: "A party to the record of any civil action or proceeding. 
 
MINNESOTA. 793 
 
 or a person for whose immediate benefit such action or proceeding is 
 prosecuted or defended, or the directors, officers, superintendent, or 
 managing agents of any corporation which is a party to the record 
 in such action or proceeding, may be examined upon the trial thereof 
 as if under cross-examination at the instance of the adverse party or 
 parties or any of them, and for that purpose may be compelled in 
 the same manner and subject to the same rules for examination as any 
 other witness to testify, but the party calling for such examination 
 shall not be concluded thereby, but may rebut it by counter-testimony." 
 
 § 5660: "It shall not be competent for any party to an action, 
 or interested in the even thereof, to give evidence therein of and con- 
 cerning any conversation with or admission of a deceased or insane 
 party or person, relative to any matter at issue between the parties"; 
 amended by St. 1895, c. 27, by adding: "provided that where the 
 testimony of the party or person since deceased or insane shall have 
 been taken, prior to death or disability, either in form of a deposition 
 or by court stenographer in court, and can be had and read as the 
 testimony of such witness, wherein such party or person shall have 
 testified concerning any conversation with the opposite party or person 
 or concerning admissions made to such party, upon a trial of the 
 issues after the death or disability of such party or person as contem- 
 plated in this section, the opposite party may testify fully in reference 
 to conversations and admissions to which the aforesaid deposition or 
 evidence shall relate." 
 
 § 5661 : "The following persons are not competent to testify in 
 any action or proceeding: First, those who are of unsound mind or 
 intoxicated at the time of their production for examination; Second, 
 children under ten years of age, who appear incapable of receiving 
 just impressions of the facts respecting which they are examined or 
 of relating them truly." 
 
 § 5662: "There are particular relations in which it is the policy 
 of the law to encourage confidence, and preserve it inviolate; there- 
 fore a person cannot be examined as a witness in the following cases: 
 First. A husband cannot be examined for or against his wife with- 
 out her consent; nor a wife for or against her husband without his 
 consent; nor can either, during the marriage or afterward, be, with- 
 out the consent of the other, examined as to any communication made 
 by one to the other during the marriage; but this exception does not 
 apply to a civil action or proceeding by one against the other, nor 
 to a criminal action or proceeding for a crime committed by one 
 against the other, nor to proceedings supplementary to execution"; 
 amended by St. 1903, c. 227, omitting the last clause^ and substituting 
 "nor to an action or proceeding for abandonment and neglect of the 
 wife or children by the husband." 
 
 § 6841 : "A person heretofore or hereafter convicted of any crime 
 is, notwithstanding, a competent witness in any case or proceeding, 
 
794 APPENDIX OF STATUTES. 
 
 civil or criminal, but the conviction may be proved for the purpose 
 of affecting the weight of his testimony, either by the record or by 
 his cross-examination upon which he must answer any proper ques- 
 ton relevant to that inquiry; and the party cross-examining is not 
 concluded by the answer to such question.'' 
 
 § 2216: "Whenever in any action in any court the defendant 
 shall plead or answer the defence of usury, either party to the action 
 may be a witness on his own behalf on the trial, except in actions 
 in which the opposite party sues or defends as administrator or per- 
 sonal representative of a deceased person; except, also, actions in 
 which the opposite party claims as assignee and the original assignor 
 is deceased." 
 
 § 7324 (a co-indictee may be discharged by the Court, to be a 
 witness for the State, at any time before defendant has gone into his 
 defence). 
 
 § 7325 (a co-indictee must be discharged, before the evidence is 
 closed, to be a witness for the co-defendant, if the Court is of opinion 
 that there is not sufficient evidence to put him on his defence). 
 
 MISSOURI. 
 
 Revised Statutes, 1899, § 2638: The accused's failure to testify 
 "shall not be construed to affect the innocence or guilt of the accused, 
 nor shall the same raise any presumption of guilt, nor be referred to 
 by any attorney in the case, nor be considered by the Court or jury 
 before whom the trial takes place." 
 
 § 2635 : "No person shall be rendered incompetent to testify in 
 criminal causes by reason of his being the person injured or defrauded, 
 or intended to be injured or defrauded, or that would be entitled to 
 satisfaction for the injury, or is liable to pay the costs of the prose- 
 cution." 
 
 § 2636: "When two or more persons shall be jointly indicted or 
 prosecuted, the Court may, at any time before the defendants have 
 gone into their defence, direct any defendant to be discharged, that 
 he may be a witness for the State. A defendant shall also, when 
 there is not sufficient evidence to put him on his defence, at any time 
 before the evidence is closed, be discharged by the Court for the pur- 
 pose of giving his testimony for a co-defendant.'' 
 
 § 2637 : "No person shall be incompetent to testify as a witness 
 in any criminal cause or prosecution by reason of being the person 
 on trial or examination, or by reason of being the husband or wife 
 of the accused; but any such facts may be shown for the purpose of 
 affecting the credibility of such witness; provided that no person on 
 trial or examination, nor wife or husband of such person, shall be 
 required to testify, but any such person may, at the option of the de- 
 
MISSOURI. 795 
 
 fendant, testify in his behalf, or on behalf of a co-defendant, and shall 
 be liable to cross-examination, as to any matter referred to in his 
 examination in chief, and may be contradicted and impeached as any 
 other witness in the case; provided that in no case shall husband or 
 wife, when testifying under the provisions of this section for a de- 
 fendant, be permitted to disclose confidential communications had or 
 made between them in the relation of such husband and wife.'' 
 
 § 4652: "No person shall be disqualified as a witness in any civil 
 suit or proceeding at law or in equity, by reason of his interest in 
 the event of the same as a party or otherwise, but such interest may 
 be shown for the purpose of affecting his credibility; provided that 
 in actions where one of the original parties to the contract or cause 
 of action in issue and on trial is dead, or is shown to the Court to 
 be insane, the other party to such contract or cause of action shall 
 not be admitted to testify either in his own favor or in favor of any 
 party to the action claiming under him, and no party to such suit or 
 proceeding whose right of action or defence is derived to him from 
 one who is, or if living would be, subject to the foregoing disqualifi- 
 cation, shall be admitted to testify in his own favor, except as in this 
 section is provided; and where an executor or administrator is a 
 party, the other party shall not be admitted to testify in his own 
 favor, unless the contract in issue was originally made with a person 
 who is living and competent to testify, except as to such acts and 
 contracts as have been done or made since the probate of the will or 
 the appointment of the administrator ; provided, further, that in ac- 
 tions for the recovery of any sum or balance due on account, and 
 when the matter at issue and on trial is proper matter of book account, 
 the party living may be a witness in his own favor, so far as to prove 
 in whose handwriting his charges are, and when made, and no 
 farther." 
 
 § 4654: "Any party to any civil action or proceeding may compel 
 any adverse party, or any person for whose immediate and adverse 
 benefit such action or proceeding is instituted, prosecuted or defended, 
 to testify as a witness in his behalf, in the same manner and subject 
 to the same rules as other witnesses ; provided that the party so 
 called may be examined by the opposite party, under the rules ap- 
 plicable to the cross-examination of witnesses." 
 
 § 465s (the foregoing sections not to affect the law of attestation 
 of instruments required to be attested). 
 
 § 4656 : "No married woman shall be disqualified as a witness in 
 any civil suit or proceeding prosecuted in the name of or against her 
 husband, whether joined or not with her husband as a party, in the 
 following cases, to wit: First, in actions upon policies of insurance 
 of property, so far as relates to the amount and value of the prop- 
 erty alleged to be injured or destroyed ; second, in actions against 
 carriers, so far as relates to the loss of the property and the amount 
 
796 APPENDIX OF STATUTES. 
 
 and value thereof; third, in all matters of business transactions when 
 the transaction was had and conducted by such married woman as 
 the agent of her husband; and no married man shall be disqualified 
 in any such civil suit or proceeding prosecuted in the name of or 
 against his wife, whether he be joined with her or not as a party, 
 when such suit or proceeding is based upon, grows out of, or is con- 
 nected with any matter of business or business transaction where the 
 transaction or business was had with or was conducted by such mar- 
 ried man as the agent of his wife; provided that nothing in this 
 section shall be construed to authorize or permit any married woman, 
 while the relation exists or subsequently, to testify to any admission 
 or conversation of her husband, whether made to herself or to third 
 parties " 
 
 § 4659: "The following persons shall be incompetent to testify: 
 First, a person of unsound mind at the time of his production for 
 examination; second, a child under ten years of age, who appears 
 incapable of receiving just impressions of the facts respecting which 
 they are examined, or of relating them truly." 
 
 § 4680: "Any person who has been convicted of a crime is not- 
 withstanding a competent witness ; but the conviction may be proved 
 to affect his credibility, either by the record or by his own cross- . 
 examination, upon which he must answer any question relevant to that 
 inquiry, and the party cross-examining shall not be concluded by his 
 answer." 
 
 NEW YORK. 
 
 Constitution, 1895, Art. XIII, § 4: "Any person charged with 
 receiving a bribe, or with offering or promising a bribe, shall be per- 
 mitted to testify in his own behalf in any civil or criminal prosecu- 
 tion therefor." 
 
 Code of Civil Procedure, 1877, § 828: "Except as otherwise speci- 
 ally prescribed in this title, a person shall not be excluded or ex- 
 cused from being a witness, by reason of his or her interest in the 
 event of an action or special proceeding; or because he or she is a 
 party thereto; or the husband or wife of a party thereto, or of a 
 person in whose behalf an action or special proceeding is brought, op- 
 posed, prosecuted, or defended." 
 
 lb. § 829: "Upon the trial of an action, or the hearing upon the 
 merits of a special proceeding, a party or a person interested in the 
 event, or a person from, through, or under whom such a party or 
 interested person derives his interest or title by assignment or other- 
 wise, shall not be examined as a witness in his own behalf or irf- 
 terest, or in behalf of the party succeeding to his title or interest. 
 
NEW YORK. 797 
 
 against the executor, administrator, or survivor of a deceased person, 
 or the committee of a lunatic, or a person deriving his title or in- 
 terest from, through, or under a deceased person or lunatic, by assign- 
 ment or otherwise, concerning a personal transaction or communica- 
 tion between the witness and the deceased person or lunatic, except 
 where the executor, administrator, survivor, committee, or person so 
 deriving title or interest is examined in his own behalf, or the tes- 
 timony of the lunatic or deceased person is given in evidence con- 
 cerning the same transaction or communication. A person shall not 
 be deemed interested for the purposes of this section by reason of 
 being a stockholder or officer of any banjcing corporation which is a 
 party to the proceeding or interested in the result thereof." 
 
 lb. § 831 : "A husband or wife is not competent to testify against 
 the other, upon the trial of an action, or the hearing upon the merits 
 of a special proceeding, founded upon an allegation of adultery, ex- 
 cept to prove the marriage or disprove the allegation of adultery. A 
 husband or wife shall not be compelled, or, without the consent of 
 the other if living, allowed to disclose a confidential communication 
 made by one to the other during marriage. In an action for criminal 
 conversation, the plaintiff's wife is not a competent witness for the 
 plaintiff, but she is a competent witness for the defendant, as to any 
 matter in controversy; except that she cannot, without the plaintiff's 
 consent, disclose any confidential communication had or made be- 
 tween herself and the plaintiff." 
 
 lb. § 832: "A person, who has been convicted of a crime or mis- 
 demeanor, is, notwithstanding, a competent witness in a civil or crim- 
 inal action or special proceeding; but the conviction may be proved 
 for the purpose of affecting the weight of his testimony, either by 
 the record or by his cross-examination, upon which he must answer 
 any question relevant to that inquiry; and the party cross-examining 
 him is not included by that inquiry." 
 
 lb. § 850: "The Court or officer may examine an infant, or a 
 person apparently of weak intellect, produced before it or him as a 
 witness, to ascertain his capacity and the extent of his knowledge." 
 
 Penal Code, 1881, § 714 (substantially the same as § 832, C. C. P.). 
 
 lb. § 715 : "The husband or wife of a person indicted or accused' 
 of a crime is in all cases a competent witness, on the examination or 
 trial of such person; but neither husband nor wife can be compelled 
 to disclose a confidential communication, made by one to the other 
 during marriage." 
 
 Code of Criminal Procedure, 1881, § 10: "No person can be com- 
 pelled in a criminal 'action to be a witness against himself." 
 
 lb. § 392 (in criminal cases, the testimony of a child apparently 
 under 12 not understanding an oath may be received if it is "of suf- 
 ficient intelligence." 
 
 ^^- § 393: "The defendant in all [criminal] cases may testify as 
 
798 APPENDIX OF STATUTES. 
 
 a witness in his own behalf, but his neglect or refusal to testify does 
 not create any presumption against him." 
 
 Laws 18/6, c. 182, § I : "All persons jointly indicted shall, upon 
 the trial of either, be competent witnesses for each other the same as 
 if not included in the indictment." 
 
 Laws i8p2, c. 689, § lis (^ wife may testify in an action by a hus- 
 band against a savings bank to recover money deposited by the wife 
 as hers). 
 
 OHIO. 
 
 Annotated Revised Statutes, 1898, § 5240: "All persons are com- 
 petent witnesses except those of unsound mind, and children under 
 ten years of age who appear incapable of receiving just impressions 
 of the facts and transactions respecting which they are examined, or 
 of relating them truly." 
 
 § 5241 : "The following persons shall not testify in certain re- 
 spects : . . . 3. Husband or wife, concerning any communication made 
 by one to the other, or an act done by either in the presence of the 
 other, during coverture, unless the communication was made, or act 
 done, in the known presence or hearing of a third person competent 
 to be a witness ; and the rule shall be the same if the marital rela- 
 tion has ceased to exist. 4. A person who assigns his claim or 
 interest, concerning any matter in respect to which he would not, if 
 a party, be permitted to testify. 5. A person who, if a party, would 
 be restricted in his evidence under § 5242, shall, where the property 
 or thing is sold or transferred by an executor, administrator, guar- 
 dian, trustee, heir, devisee, or legatee, be restricted in the same manner 
 in any action or proceeding concerning such property or thing." 
 
 § 5242: "A party shall not testify where the adverse party is a 
 guardian or trustee of either a deaf and dumb or an insane person, 
 or of a child of a deceased person, or is an executor or administrator, 
 or claims or defends as heir, grantee, assignee, devisee, or legatee of 
 a deceased person, except — i. To facts which occurred subsequent to 
 the appointment of the guardian or trustee of an insane person, and, 
 in the other cases, subsequent to the time the decedent, grantor, as- 
 signor, or testator died. 2. When the action or proceeding relates to 
 a contract made through an agent by a person since deceased, and 
 the agent is competent to testify as a witness, a party may testify on 
 the same subject. 3. If a party, or one having a direct interest, tes- 
 tify to transactions or conversations with another party, the latter may 
 testify as to the same transactions or conversations. 4. If a party 
 offer evidence of conversations or admissions of the opposite party, 
 the latter may testify concerning the same conversation or admissions. 
 5. In an action or proceeding by or against a partner or joint con- 
 
OHIO. 799 
 
 tractor, the adverse party shall not testify to transactions with or 
 admissions by a partner or joint contractor since deceased, unless the 
 same were made in the presence, of the surviving partner or joint 
 contractor; and this rule shall be applied without regard to the char- 
 acter in which the parties sue or are sued. 6. If the claim or defence 
 is founded on a book account, a party may testify that the book is 
 his account book, that it is a book of original entries, that the entries 
 therein were made by himself, a person since deceased, or a disinter- 
 ested person, non-resident of the county; whereupon the book shall 
 be competent evidence, and such book may be admitted in evidence, 
 in any case, without regard to the parties, upon like proof by any 
 competent witness. 7. If a party, after testifying orally, die, the evi- 
 dence may be proved by either party on a further trial of the case, 
 whereupon the opposite party may testify to the same matters. 8. If 
 a party die, and his deposition be offered in evidence, the opposite 
 party may testify as to all competent matters therein. Nothing in 
 this section contained shall apply to actions for causing death, or ac- 
 tions or proceedings involving the validity of a deed, will, or codicil; 
 and when a case is plainly within the reason and spirit of the last 
 three sections, though not within the strict letter, their principles 
 shall be applied." 
 
 § 5697 (parties in divorce and alimony cases are to be competent 
 like any other witnesses). 
 
 § 7284: "No person shall be disqualified as a witness in any 
 criminal prosecution by reason of his interest in the event of the 
 same, as a party or otherwise, or by reason of his conviction of any 
 crime; and husband and wife shall be competent witnesses to testify 
 in behalf of each other in all criminal prosecutions; but such in- 
 terest, conviction, or relationship may be shown for the purpose of 
 affecting his or her credibility. But husband or wife shall not testify 
 concerning any communication made by one to the other, or act done 
 "by either in the presence of each other during coverture, unless the 
 communication was made or act done in the known presence or hear- 
 ing of a third person competent to be a witness, or unless in case 
 of personal injury by either the husband and [or?] wife to the other, 
 or in case of neglect or cruelty of either to their minor children under 
 ten years of age. And the rule shall be the same if the marital rela- 
 tion has ceased to exist; provided, that the presence or whereabouts of 
 the husband or wife shall not be construed to be an act under this 
 section." 
 
 § 7285 : "On the trial of all indictments, complaints, and other 
 proceedings, against a person charged with the commission of an 
 oiifence, the person so charged shall, at his own request, but not other- 
 wise, be a competent witness; but his neglect or refusal to testify 
 shall not create any presumption against him, nor shall any reference 
 l)e made to, or any comment be made upon, such neglect or refusal." 
 
800 APPENDIX OF STATUTES. 
 
 PENNSYLVANIA. 
 
 Digest of Laws, 1896 (Pepper & Lewis) : "Witnesses" § i : "Ex- 
 cept upon a preliminary hearing before a magistrate for the purpose 
 of determining whether a person charged with a criminal offence 
 triable in the Court of Oyer and Terminer ought to be committed for 
 trial, and except also upon a hearing under habeas corpus for the pur- 
 pose of determining whether bail ought to be taken upon a commit- 
 ment for murder in the first degree, or for the purpose of determining 
 in any case how much bail ought to be required, or for the purpose 
 of determining in any case whether a person committed for trial ought 
 to be further held, and except, also, upon hearings before a grand 
 jury, in none of which cases shall evidence for the defendant be heard, 
 and except, also, as provided in § 2 of this Act, all persons shall be 
 fully competent witnesses in any criminal proceeding before any tri- 
 bunal." 
 
 lb. § 2: "In such criminal proceedings, a person who has been 
 convicted in a court of this Commonwealth of perjury, which term is 
 hereby declared to include subornation of perjury, shall not be a com- 
 petent witness for any purpose, although his sentence may have been 
 fully complied with, unless the judgment or conviction be judicially 
 set aside or reserved [reversed?], or unless the proceeding be one to 
 punish or prevent injury or violence attempted, done, or threatened to 
 his person or property, in which cases he shall be competent to testify." 
 
 lb. § 3: "Nor shall husband and wife be competent or permitted 
 to testify against each other, or in support of a criminal charge of 
 adultery alleged to have been committed by or with the other, except 
 that, in proceedings for desertion and maintenance, and in any crim- 
 inal proceeding against either for bodily injury or violence attempted, 
 done, or threatened upon the other, each shall be a competent witness 
 against the other, and except, also, that either shall be competent 
 merely to prove the fact of marriage in support of a criminal charge 
 of adultery alleged to have been committed by or with the other." 
 
 lb. § 4: "Nor shall either husband or wife be competent or per- 
 mitted to testify to confidential communications made by one to the 
 other, unless this privilege be waived upon the trial." 
 
 lb. § 8 : "In any civil proceeding before any tribiinal of this Com- 
 monwealth, or conducted by virtue of its order or direction, no lia- 
 bility merely for costs nor the right to compensation possessed by an 
 executor, administrator, or other trustee, nor any interest merely in 
 the question on trial, nor any other interest or policy of law, except 
 as is provided in § 5 [11] of this Act, shall make any person incom- 
 petent as a witness." 
 
 lb. § 9 (provisions of § 2, supra, applied to civil proceedings). 
 
 lb. § 10 (provisions of § 4, supra, applied to civil proceedings). 
 
PENNSYLVANIA. 801 
 
 lb. § II : "Nor shall husband or wife be competent or permitted 
 to testify against each other, except in those proceedings for divorce 
 in which personal service of the subpcena or of a rule to take deposi- 
 tions has been made upon the opposite party, or in which the opposite 
 party appears and defends, in which case either party may testify fully 
 against the other, and except also that in any proceeding for divorce 
 either party may be called merely to prove the fact of marriage." 
 
 lb. § 12: "In any proceedings brought by either under the provi- 
 sions of section three {aliubi] to protect or recover the separate prop- 
 erty of either, both shall be fully competent witnesses, except that 
 neither may testify to confidential communications made by one to the 
 other, unless this privilege be waived upon the trial." 
 
 lb. § 14: "Nor, when any party to a thing or contract in action 
 is dead, or has been adjudged a lunatic, and his right thereto or 
 therein has passed, either by his own act or by the act of the law, 
 to party on the record who represents his interest in the subject in 
 controversy, shall any surviving or remaining party to such thing or 
 contract, or any other person whose interest shall be adverse to the 
 said right of such deceased or lunatic party, be a competent witness 
 to any matter occurring before the death of said party or the adjudica- 
 tion of his lunacy; unless the proceeding is by 01 against the surviv- 
 ing or remaining partners, joint promisors, or joint promisees, of such 
 deceased or lunatic party, and the matter occurred between such sur- 
 viving or remaining partners, joint promisors, or joint promisees and 
 the other party on the record, or between such surviving or remain- 
 ing partners, promisors, or promisees and the person having an in- 
 terest adverse to them, in which case any person may testify to such 
 matters; or, unless the action be ejectment against several defendants, 
 and one or more of said defendants disclaims of record any title to 
 the premises in controversy at the time the suit was brought and 
 also pays into Court the costs accrued at the time of his disclaimer, 
 or gives security therefor as the Court in its discretion may direct, in 
 which case such disclaiming defendant shall be a fully competent wit- 
 ness; or, unless the issue or inquiry be devisavit vel non, or be any 
 other issue or inquiry respecting the property of a deceased owner, 
 and the controversy be between parties respectively claiming such 
 property by devolution on the death of such owner, in which case all 
 persons shall be fully competent witnesses." 
 
 lb. § 15: "But no person who is incompetent under clauses (a), 
 (6), (c), and (d) [§§ 9, 10, 11, 13, supra'] of this section shall be- 
 come competent by the general language of clause (e) [§ 14, supraj." 
 lb. § 16: "Any person, who is incompetent under clause (e) [§ 14, 
 supra} of section five by reason of interest, may, nevertheless, be 
 called to testify against his interest, and in that. event he shall become 
 a fully competent witness for either party; and such person shall also 
 become fully competent for either party by a release or extinguish- 
 
802 APPENDIX OF STATUTES. 
 
 tnent in good faith of -his interest, upon which good faith the trial 
 judge shall decide as a preliminary question." 
 
 lb. § i8: "Hereafter, in any civil proceeding before any tribunal 
 of this Commonwealth, or conducted by virtue of its order or direc- 
 tion, although a party to the thing or contract in action may be dead 
 or may have been adjudged a lunatic, and his right thereto or therein 
 may have passed, either by his own act or by the act of the law, to 
 a party on a record who represents his interest in the subject in con- 
 troversy, nevertheless, any surviving or remaining party to such thing 
 or contract or any other person whose interest is adverse to the said 
 right of such deceased or lunatic party, shall be a competent witness 
 to any relevant matter, although it may have occurred before the death 
 of said party or the adjudication of his lunacy; if and only if such 
 relevant matter occurred between himself and another person who may 
 be living at the time of the trial and may be competent to testify, and 
 who does so testify upon the trial, against such surviving or remain- 
 ing party or against the person whose interest may be thus adverse, or 
 if such relevant matter occurred in the presence or hearing of such 
 other living or competent person." 
 
 lb. § 21 : "In any civil proceeding, whether or not it be brought 
 or defended by a person representing the interests of a deceased or 
 lunatic assignor of any thing or contract in action, a party to the 
 record or a person for whose immediate benefit such proceeding is 
 prosecuted or defended, or any other person whose interest is adverse 
 to the party callfng him as a witness, may be compelled by the adverse 
 party to testify as if under cross-examination, subject to the rules of 
 evidence applicable to witnesses under cross-examination, and the ad- 
 verse party calling such witnesses shall not be concluded by his testi- 
 mony; but such person so cross-examined shall become thereby a 
 fully competent witness for the other party as to all relevant matters, 
 whether or not these matters were touched upon in his cross-examina- 
 tion ; and also where one of several plaintiffs or defendants, or the 
 person for whose immediate benefit such proceeding is prosecuted or 
 defended, or such other person having an adverse interest, is cross- 
 examined under this section, his co-plaintiffs or co-defendants shall 
 thereby become fully competent witnesses on their own behalf as to 
 all relevant matters, whether or not these matters were touched upon 
 in such cross-examination." 
 
 lb. § 22: "Except defendants actually upon trial in a criminal 
 court, any competent witness may be compelled to testify in any pro- 
 ceeding, civil or criminal ; but he may not be compelled to answer 
 any question which, in the opinion of the trial judge, would tend to 
 criminate him; nor may the neglect or refusal of any defendant, actu- 
 ally upon trial in a criminal court, to offer himself as a witness be 
 treated as creating any presumption against him, or be adversely re- 
 ferred to by Court or counsel during the trial." 
 
PENNSYLVANIA ; WISCONSIN. 80S 
 
 "Desertion," § 3 (action for maintenance against a deserting hus- 
 band; the wife to be competent for Commonwealth, and the husband 
 to be competent). 
 
 St. i8pp, April II, Pub. L. 41 (preamble stating a purpose to re- 
 move existing disadvantages of the wife). 
 
 Ih. § I : "In any civil action brought against the husband to re- 
 cover necessaries furnished to the wife, if the husband makes defence 
 at the trial upon the ground that the wife had left him without justifi- 
 cation or excuse before the necessaries were furnished, or upon any 
 other ground which attacks the wife's character or conduct, she shall 
 be a competent witness in rebuttal for the plaintiff." 
 
 Ih. % 2: "In any criminal proceeding brought against the husband, 
 if he makes defence at the trial upon any ground which attacks the 
 wife's character or conduct, she shall be a competent witness in re- 
 buttal for the Commonwealth." 
 
 St. ipoj, No. 32: In prosecutions for a husband's failure to sup- 
 port, "the wife shall be a competent witness." 
 
 WISCONSIN. 
 
 Statutes, 1898, § 4068: "No person shall be disqualified in any 
 action or proceeding, civil or criminal, by reason of his interest in 
 the event of the same, as a party or otherwise; and every party shall 
 be in every such case a competent witness except as otherwise pro- 
 vided in this chapter. But such interest or connection may be shown 
 to affect the credibility of the witness. Any party to the record in 
 any civil action or proceeding, or any person for whose immediate 
 benefit any such action or proceeding is prosecuted or defended, or the 
 president, secretary, or other principal officer or general managing 
 agent of any corporation which is such a party or for whose benefit 
 the action or proceeding is prosecuted or defended, may be examined 
 upon the trial of any such action or proceeding as if under cross- 
 examination, at the instance of the adverse party or parties or any of 
 them, and for that purpose may be compelled, in the same manner and 
 subject to the same rules for examination as any other witness, to 
 testify; but the party calling for such examination shall not be con- 
 cluded thereby, and may rebut the evidence given thereon by counter 
 or impeaching testimony." 
 
 § 4069: "No party, and no person from him, through, or under 
 whom a party derives his interest or title, shall be examined as a 
 witness in respect to any transaction or communication by him per- 
 sonally with a deceased person or with a person then insane in any 
 civil action or proceeding in which the opposite party derives his 
 title or sustains his liability, to the cause of action from, through, or 
 under such deceased person or such insane person, or in which such 
 
804 APPENDIX OF STATUTES. 
 
 insane person is a party prosecuting or defending by guardian, unless 
 such opposite party shall first be examined or examine some other 
 witness in his behalf to such transaction or communication between 
 the deceased or insane and such party or person, or unless the testi- 
 mony of such deceased person given in his lifetime or of such insane 
 person be first read or given in evidence by the opposite party; and 
 then, in either case respectively, only in respect to such transaction or 
 communication of which testimony is so given or to the matters to 
 which such testimony relates"; amended by St. 1901, c. 181, by adding 
 after the word, "party," in the first line, the words "in his own behalf 
 or interest." 
 
 § 4070: "No party, and no person from, through, or under whom 
 a party derives his interest or title, shall be examined as a witness 
 in respect to any transaction or communication by him personally with 
 an agent of the adverse party or an agent of the person from, through, 
 or under whom such adverse party derives his interest or title, when 
 such agent is dead or insane or otherwise legally incompetent as a 
 witness, unless the opposite party shall first be examined or examine 
 some other witness in his behalf in respect to some transaction or 
 communication between such agent and such other party or person; 
 or unless the testimony of such agent, at any time taken, be first read 
 or given in evidence by the opposite party; and then, in either case 
 respectively, only in respect to such transaction or communication of 
 which testimony is so given or to the matters to which such testimony 
 relates." 
 
 § 4071 : "In all criminal actions and proceedings the party charged 
 shall, at his own request, but not otherwise, be a competent witness; 
 but his refusal or omission to testify shall create no presumption 
 against him or any other party thereto." 
 
 § 4072: "A husband or wife shall not be allowed to disclose a 
 confidential communication made by one to the other during their mar- 
 riage, without the consent of the other. In an action for criminal 
 conversation the plaintiff's wife is a competent witness for the defend- 
 ant as to any matter in controversy except as aforesaid." 
 
 § 4073: "A person who has been convicted of a criminal offence 
 is, notwithstanding, a competent witness, but the conviction may be 
 proved to affect his credibility, either by the record or by his own 
 cross-examination, upon which he must answer any question relevant 
 to that inquiry, and the party cross-examining him is not concluded 
 by his answer." 
 
 § 4085 : "The Court before whom an infant or person apparently 
 of weak intellect shall be produced as a witness may examine such 
 person to ascertain his capacity and whether he understands the nature 
 and obligations of an oath." 
 
LIST OF CASES QUOTED. 
 
 PAGE 
 
 Abrath v. North Eastern R. Co. .701 
 Acklen's Executor v. Hickman . 98 
 
 Adam v. Kerr 250, 282 
 
 Adamthwaite v. Synge 211 
 
 Adkins v. Commonwealth 764 
 
 Alabama R. Co. v. Taylor 706 
 
 Alberty v. United States 147 
 
 Allen V. Rand 112 
 
 — V. Rostain 352 
 
 — V. Seyfried 109 
 
 Amey v. Long 442 
 
 Amoskeag Manufacturing Co. v. 
 
 Head 26 
 
 Anderson v. Bank 508 
 
 Anderson's Trial 352 
 
 Annesley v. Anglesea.. .145, 257, 509 
 
 Answer of the Judges 653 
 
 Appleton V. Braybrook ». 319 
 
 Archer v. Railroad Co iii 
 
 Armory v. Delamirie 147 
 
 Ashley v. Ashley 627 
 
 Ashworth v. Kittredge 323 
 
 Atherton v. Defreeze 200 
 
 Atlantic & B. R. Co. v. Reynolds 303 
 Attorney-General v. Cast-Plate 
 
 Glass Co 7S3 
 
 — V. Drummond n. 670 
 
 ^ V. Hitchcock n. 26, 131 
 
 — V. Le Merchant 225 
 
 — V. Radlofif n. 495 
 
 — V. Shore 658 
 
 Attwood V. Small 175 
 
 Austin V. Thomson n. 202 
 
 Aveson v. Kinnaird . . n. 327, n. 341 
 
 Bacon v. Charlton 326 
 
 Baird v. Cochran n. 441 
 
 Barabasz v. Kabat 710 
 
 Barber v. Merriam 327 
 
 Barbre v. Goodale 622 
 
 Baring v. Reeder n. 472 
 
 Barker v. Ray n. 148 
 
 — V. Sterne 588 
 
 Barnes v. Harris 516 
 
 Barry v. Butlin 699 
 
 Bartlett v. Hoyt n. 735 
 
 Bartlett v. Smith 734 
 
 Bate V. Hill n. 157 
 
 Bates V. Sharon n. 401 
 
 Baulec v. Railroad Co 44 
 
 Baum V. Synn 617 
 
 Baxendale v. Bennett 590 
 
 Beacon L. & T. Ass. Co n. 659 
 
 Beatson v. Skene 544 
 
 PAGE 
 
 Bellefontaine & I. R. Co. v. Bailey 
 
 434 
 
 Bembndge's Trial 495 
 
 Berais v. Temple 6g 
 
 Bergen v. People 181 
 
 Berkeley Peerage Trial 131 
 
 Birt V. Barlow 187 
 
 Black V. R. Co n. 578 
 
 Blake v. Assurance Co 50 
 
 Blakey's Heirs v. Blakey's 
 
 Executrix 130 
 
 Bogie V. Nolan 272 
 
 Bolton V. Siverpool 373 
 
 Bootle V. Blundell n. 249 
 
 Bottomley v. United States 49 
 
 Boulter v. Peplow n. 239 
 
 Bourda v. Jones 172 
 
 Boyd V. United States 480 
 
 Boylan v. Meeker 336 
 
 Braddon's Trial 360, 446 
 
 Breadalbane Case 184, 301 
 
 Brett V. Rigdon S7i 
 
 Bretta v. Sevine 612 
 
 Bridges v. R. Co n. 710, 736 
 
 Brown v. Byrne 609, n. 662 
 
 — V. Commonwealth 397 
 
 ' — V. Walker 491 
 
 Bryant v. Owen n. 629 
 
 Bucklin v. State 302 
 
 Buel V. State 717 
 
 Bullard v. Pearsall 119 
 
 Burke v. Dulaney 566 
 
 Burns v. Barenfield n. 434 
 
 Burr's Trial 478, 499, 540 
 
 Burrough v. Martin loi 
 
 Bushel's Case 93, n. 352 
 
 Bushnell's Trial 92 
 
 Caldwell V. Stuart 472 
 
 Callanan v. Shaw 171 
 
 Calvert v. Flower 201 
 
 Cameron v. Peck n. 245 
 
 Campau v. Dewey n. 384 
 
 Capen v. Stoughton 639 
 
 Carpenter's Estate 94 
 
 Caruthers v. Eldridge n. 208 
 
 Carver v. Carver 295, 70s, 770 
 
 — V. Jackson 295 
 
 Castlemaine's Trial 129 
 
 Central Transportation Co. v. 
 
 Pullman's Palace Car Co..«. 712 
 
 Central Vt. R. Co. v. Soper 70 
 
 Chamberlin v. Ball n. 322 
 
 Chandler v. Allison n. 386 
 
 805 
 
806 
 
 LIST OF CASES QUOTED. 
 
 Chapin v. Dobson 620 
 
 Chase v. Sowell .7 n. 44 
 
 Cherry v. Slade n. 346 
 
 Cheyney's Case 672 
 
 Chicago V. Powers 43 
 
 Chicago City R. Co. v. Carroll... 16 
 
 Church V. Hubbart 318 
 
 Clarke v. Periam 38 
 
 Clemens v. Conrad 242 
 
 Clements v. Marston S31 
 
 Clinton v. State n. 357 
 
 Cloyes V. Thayer 496 
 
 Cogdell z'. R. Co «. 705 
 
 Cohn V. Saidel 25 
 
 Cole V. Gibson 236 
 
 Coleman v. People 48 
 
 — V. Southwick 258 
 
 Coleman's Will 526 
 
 Collins V. Mack 136 
 
 — V. People 89 
 
 Columbia & R. R. Co. v. 
 
 Hawthorne n. 716 
 
 Combe v. London 367 
 
 Commonwealth v. Anthes 746 
 
 j-« V. Chance n. 349 
 
 U V. Dana 438 
 
 V. Desmond n. 760 
 
 V. Emery 230 
 
 f' V. Hardy 27 
 V. Jackson n. 47 
 — V. Kenney 142 
 
 V. Keyes 191 
 
 V. Mead 535 
 
 V. Morey n. 151 
 
 V. Morrell 223 
 
 V. Phillips 215 
 
 V. Porter 741 
 
 V. Richardson n. 312 
 
 V. Robinson 56, 735 
 
 V. Smith 418 
 
 V. Sturtivant n. 401 
 
 V. Trefethen ». 332 
 
 V. Webster. ..21, 24, n. 146, 182, 
 
 S03, 716 
 
 iConklin v. Stamler 287 
 
 [Connors v. People n. 505 
 
 Cook's Trial 457 
 
 Cooper V. State ». 348 
 
 Cornell v. Green n. 401 
 
 Cornish v. Abington S74 
 
 Cornish's Trial 361 
 
 iCorser v. Paul 136 
 
 Cossens, ex parte n. 505 
 
 Counselman v. Hitchcock n. 474, 486 
 
 Coveney v. Tannahill 519 
 
 Cowley V. People n. iii 
 
 Cowper's Trial 322 
 
 Craig dem. Annesley v. Anglesea 
 
 145, 257, S09 
 
 Crowninshield v. Crowninshield 
 
 ! n. 721 
 
 Cunningham v. Railroad Co 42 
 
 Cuyler v. McCartney 140 
 
 PAGE 
 
 Daggett V. Shaw ». 295 
 
 Darby v. Ouseley n. 323 
 
 Darling v. Westmoreland 65 
 
 Davie v. Briggs 732 
 
 Davis V. Field n. 100 
 
 — V. United States 722 
 
 Davison's Trial 36, 414 
 
 DeBerenger's Trial 97 
 
 Delaney v. Philadelphia 539 
 
 Den V. Vreelandt 217 
 
 Denn v. Fulford n. 318 
 
 Dewey v. Hotchkiss 200 
 
 Dixon V. Vale n. 505 
 
 Dobson V. Graham 454 
 
 Dodd V. Norris n. 157 
 
 Doe V. Auldjo n. 281 
 
 p. Date 451, 454 
 
 p. Fleming 184 
 
 p. Harvey 234 
 
 'u. Hindson 249 
 
 V. Hiscocks 676 
 
 V. Needs 674 
 
 rt V. Newton 423 
 
 4^ V. Palmer 332 
 
 tv. Perkins loi 
 V. Suckermore n. 97, 418 
 V. Ross 241 
 V. Winn 229 
 
 Downer v. Dana 134 
 
 Doyle V. Bradford 754 
 
 Drayton v. Wells n. 271 
 
 Dublin Election Case 507 
 
 Dunbar v. Madden n. 250 
 
 Dunning v. M. C. R. Co n. 760 
 
 Dwyer v. Collins 226 
 
 Eady v. Shivey 309 
 
 Eagleton v. Kingston 96 
 
 Earle v. Rice 555 
 
 Eason v. Chapman n. 417 
 
 Eastman v. Moulton 284 
 
 Eaton V. Rice 192 
 
 — V. Telegraph Co n. 62 
 
 Eaton's Trial 195 
 
 Eden v. Blake n. 607 
 
 Eisenlord v. Clum n. 279 
 
 EUicott V. Pearl 310 
 
 Elliott V. Van Buren n. 253 
 
 Ellis V. Buzzell 718 
 
 Ellsworth V. Potter 122 
 
 Emerson v. Lowell Gaslight Co . 63 
 
 Enos V. Tuttle n. 349 
 
 Essex V. Day 578 
 
 Evans v. People ' 81 
 
 — V. Rothschild 267, 
 
 Ewing V. Goode 709 
 
 Fabrigas v. Mostyn 349 
 
 Fairbanks v. Snow 601 
 
 Fairley v. Smith n. 326 
 
 Fairlie v. Denton 144 
 
 Fennerstein's Champagne n. 291 
 
LIST OF CASES QUOTED. 
 
 807 
 
 PAGE 
 
 Fenwick v. Bell 396, 413 
 
 Fenwick's Trial 751 
 
 Ferrers v. Shirley 95 
 
 Fielder v. Collier 293 
 
 First Nat'l Bank v. Wirebach's 
 
 Ex'rs 436 
 
 Fiske V. Gowing 413 
 
 Fletcher v. State ,.113 
 
 Flight V. Robinson n. 461 
 
 Folkes V. Chadd n. 394 
 
 Foster V. Brooks 304 
 
 — V. Jolly 62s 
 
 — V. Mackinnon 574 
 
 — V. People 504 
 
 Fox V. State 752 
 
 Franklin Bank v. Pennsylvania 
 
 D. & M. S. N. Co 137 
 
 Fraser v. Jennison 390 
 
 Free v. Buckingham 455 
 
 Frost's Trial n. 755 
 
 Gaines v. Relf n. 305 
 
 Ganahl v. Shore .». 286 
 
 Garden City S. Co. v. Miller .n. 321 
 
 Gardner v. People n. 366 
 
 Garrard v. Frankel '.. .. 584 
 
 Gartsjde v. Insurance Co 547 
 
 Gass V. Stinson n. 417 
 
 Gassett v. Glazier n. 746 
 
 Gathercole z/. Miall 223 
 
 Gelott V. Goodspeed 250 
 
 Gentry v. McMinnis 161 
 
 Gertz V. Fitchburg R. Co 157 
 
 Gibblehouse v. Stong 139 
 
 Gillis V. Gillis ». 249 
 
 Glynn v. Bank of England n. 283 
 
 Golden v. State «. 363 
 
 Goode V. Riley n. 663 
 
 Goodhand i). Benton n. 15 
 
 Goodright v. Moss 179 
 
 Goss V. Lord Nugent... 626 
 
 Grant v. Grant n. 669 
 
 . Great Western Turnpike Co. v. 
 
 Loomis n. 453 
 
 Green v. Weaver n. 478 
 
 Greenough v. Gaskell ...513, n. 521 
 
 Griswold v. Pitcalrn ; 214 
 
 Groenwelt v. Burrell 374 
 
 Guardhouse v. Blackburn . 594, n. 606 
 Gulf, C. & F. R. Co. V. Shieder..727 
 
 Haak v. Breidenbach 634 
 
 Hales' Trial 418 
 
 Ham's Case 187 
 
 Hardy v. Merrill 401 
 
 Hardy's Trial 537 
 
 Harriraan v. Brown 298 
 
 Harrison's Trial 36 
 
 Hartford Bridge Co. v. Granger 144 
 
 Hathaway v. Hemingway n. 382 
 
 Hatton V. Robinson 514 
 
 Heane v. Rogers 136 
 
 PAGE 
 
 Hein v. Holdridge 29 
 
 Hendrickson v. People IS3 
 
 Hennell v. Lyon n. 228 
 
 Hennessy v. Wright n. 545 
 
 Henry v. Lee loS 
 
 Hillis V. Wylie n. 417 
 
 Hindson v. Kersey 176 
 
 Hingeston v. Kelly 700 
 
 Hoag V. Wright 430 
 
 Hollingham v. Head 61 
 
 Hooper v. Moore 756 
 
 Howley v. Whipple 209 
 
 Howser v. Commonwealth .269, 392 
 
 Hubbard v. Greeley 592 
 
 Hudson V. Revett , . 560 
 
 Huff V. Bennett 106 
 
 Hughes V. R. Co n. 360 
 
 Hunt V. Lowell Gaslight Co 64 
 
 Hutchinson v. Tatham n. 611 
 
 Hutchison v. Bowker 744 
 
 Ings' Trial no, 162 
 
 Insurance Co. v. Mosley .». 327, 341 
 
 Irish Society v. Derry 15 
 
 Ivy's Trial n. 300 
 
 Jack V. Mutual R. F. Life Ass'n. 
 
 n. 343 
 
 Jeans v. Wheedon 254 
 
 Jodrell, re 659 
 
 Johnson v. Lawson 280 
 
 Joliet R. Co. V. Velie 713 
 
 Jones V. Guana Co 311 
 
 — V. Randall n. 629 
 
 — V. Reilly 521 
 
 Judges, Answer of the 653 
 
 Kelley v. Richardson 80, «. 395 
 
 Kempsey v. McGinnis 405, 432 
 
 Kennedy v. Doyle 292, 306 
 
 Kidd's Administrator v. 
 
 Alexander's Administrator ...314 
 
 Kilpatrick v. Commonwealth 758 
 
 Kingston's Case 507, 546 
 
 Knight V. Barber n. 606 
 
 Knowles v. People 467 
 
 Kurtz V. Hibner 681, 682 
 
 Kynaston v. East India Co 462 
 
 Lake v. People n. 434 
 
 Lamb v. Moberly 235 
 
 Langley v. Earl of Oxford 760 
 
 Laughlin v. State 363 
 
 Lawes v. Reed 105 
 
 Lawless v. Queale n. 238 
 
 Lawrence v. Clark n. 227 
 
 Layman's Will 527 
 
 Lefebure v. Worden n. 290 
 
 Lenert v. State n. 718 
 
 Leroux v. Brown 650 
 
 Lewis V. Dunne 778 
 
808 
 
 LIST OF CASES QUOTED. 
 
 PAGE 
 
 Leyfield's Case 222 
 
 Lincoln's Trial 109 
 
 Lisle's Trial 357 
 
 Lloyd V. Passingham n. 495 
 
 Losee v. Losee n. 250 
 
 Lott V. King 108 
 
 Louisville & N. R. Co. v. York n. 363 
 
 Lovat's Trial 385 
 
 Low's Case 641 
 
 McCoy V. The World's 
 
 Columbian Exposition 758 
 
 M'Crea v. Purmort 617 
 
 McKee, ex parte ..n. 453 
 
 M'Naghten's Case n. 434 
 
 M'Reynolds v. M'Cord 147 
 
 Macclesfield's Trial 120 
 
 Mahaska Co. v. Ingalls n. 278 
 
 Maitland v. Zanga 391 
 
 Manning v. R. Co n. 754 
 
 Massey v. Farmer's National 
 
 Bank 237 
 
 Mattison v. State •». 26 
 
 Maynard v. Buck n. 71 
 
 Mayo V. Mayo n. 495 
 
 Mayor, etc. of New York v. 
 
 Second Ave. R. Co 102 
 
 Meath v. Winchester 206 
 
 Melville's Trial 4, 459 
 
 Menomonie R. S. & D. Co. v. 
 
 R. Co 707 
 
 Mercer v. State 529 
 
 Middleton v. Mass 207 
 
 — V. Melton 275 
 
 Miller V. Curtis 41 
 
 — V. Salomons n. 339 
 
 ' — V. Travers , 670, 675 
 
 Milne & Seville v. Leisler 343 
 
 Mississippi v. Johnson n. 542 
 
 Monkton v. Attorney General 
 
 n. 279, 282 
 
 Moody V. Rowell 385 
 
 Mooney v. Olsen 338 
 
 Morris v. Miller 186 
 
 — V. Sessees n. 300 
 
 Mortimer v. McCallan n. 229 
 
 Morton v. Folger n. 295 
 
 Munn V. Godbold n. 233 
 
 Mutual Life Ins. Co. v. Hillmon 
 
 331 
 
 Myers v. Sadd ». 679 
 
 — V. Sari 661 
 
 Nash V. Hunt n. 404 
 
 Naumberg v. Young n. 615 
 
 Newsom v. Luster 251 
 
 Newton v. Tolles _ 599 
 
 New York Iron Mine v. 
 
 Negaunee Bank 388 
 
 New York, L. & W. R. Go's 
 
 Petition n. 760 
 
 Nickerson v. Spindell 233 
 
 North Brookfield v. Warren . .«. 280 
 
 PAGE 
 
 Obermann Brewing Co. v. Adams 
 210 
 
 Omichund v. Barker 312, 357, n. 361 
 
 Owen V. Warburton n. 635 
 
 Owens V. Owens n. 88 
 
 Oxier v. United States 124 
 
 Paige V. Willet n. 760 
 
 Paine v. Aldrich n. 404 
 
 Papendick v. Bridgewater n. 277 
 
 Park Bros. & Co. v. Blodgett & 
 
 Clapp Co 581 
 
 Parnell Commission's Proceedings 
 
 ...93, 109, 194, 261, 264, 350, 385 
 
 Paxton V. Douglas 477, n. 495 
 
 Pearce v. Hooper 205 
 
 Pember v. Mathers 174 
 
 Penn and Mead's Trial 474 
 
 Penn M. S. Ins. Co. v. M. S. 
 
 B. & T. Co 410 
 
 People V. Arnold 33 
 
 — V. Davis 449 
 
 — V. Doyle 15 
 
 — V. Jackson 125 
 
 — V. McMahon 154 
 
 — z;. Matteson n. 3S9 
 
 — V. Rector 155 
 
 — V. Shay 38 
 
 — V. Strong n. 150 
 
 — V. Tucker n. 60 
 
 — V. Tyler 89, 501 
 
 — V. Walters n. 60 
 
 — t/. Wells 354 
 
 Perry v. Burton 196 
 
 Philadelphia & T. R. Co. v. 
 
 Stimpson 386 
 
 Philipson v. Chase n. 233 
 
 Phillips V. Marblehead 533 
 
 — V. Meily n. 607 
 
 — V. Willow 68 
 
 Pickens v. State 302 
 
 Pinney v. Cahill 324 
 
 Poole V. Dicas 290 
 
 Post V. R. Co n. 371 
 
 Potter V. Easton 613 
 
 Powers V. Russell 703 
 
 Pratt V. White n. 284 
 
 Price V. Hudson 564 
 
 — V. Torrington 290 
 
 Priestwood v. Watson 761 
 
 Prince v. Samo -. 199 
 
 Pruden v. Alden 631 
 
 Pym V. Campbell 568 
 
 Queen's Case, The 133, 198, 239 
 
 Rex or Regina v. Aickles 304 
 
 — V. All Saints 471 
 
 — V. Almon 70s 
 
 — V. Anderson 352 
 
 — V. Atwood & Robins 176 
 
 — V. Baldry i'S2 
 
LIST OF CASES QUOTED. 
 
 809 
 
 PAGE 
 
 Rex or Regina v. Bedfordshire. .296 
 
 — V. Bembridge 495 
 
 — V. Braddon 360, 446 
 
 — V. Brasier J7 
 
 — z/. Burdett ». 148 
 
 — V. Burton. 182 
 
 — V. Bushel 93, n. 352 
 
 — V. Bushnell 92 
 
 — V. Castell Careinion ». 242 
 
 — V. Castlemaine 129 
 
 — V. Castro, alias Tichborne. ..126 
 
 — V. Cliviger 469 
 
 ' — z;. Cockin n. 732 
 
 — V. Cook 457 
 
 — V. Cooper 45 
 
 — V. Cornish 361 
 
 — V. Cowper 322 
 
 — V. Davidson 36. 4i4 
 
 — V. De Berenger 97 
 
 — V. Eaton iQS 
 
 — i;. Eriswell 266 
 
 — V. Erith 279 
 
 — V. Exall 35 
 
 — V. Farler I77 
 
 — K. Fenwick 75i 
 
 > — V. Foster ' %. 34i 
 
 — V. Garbett 496 
 
 — V. Hales 418 
 
 — V. Hardy 537 
 
 — V. Harrison 36 
 
 -^ !>. Hay 549 
 
 — V. Hill 76 
 
 — V. Ings no, 162 
 
 — V. Ivy n. 300 
 
 — -v. Jenkins n. 274 
 
 — V. Kingston 546 
 
 — V. Langmead n. 732 
 
 — V. Lincoln lOg 
 
 — V. Lisle 357 
 
 — V. Lovat 385 
 
 — V. Macclesfield 120 
 
 — V. Melville 4, 459 
 
 — ». Moore 151 
 
 — V. Muscot 173 
 
 — V. Oddy 37 
 
 — i;. O'Doherty n. 705 
 
 — V. Penn and Mead 474 
 
 — V. Ramsden 106 
 
 — V. Reading 179 
 
 — V. Rookwood 123 
 
 — V. Rosser 754 
 
 — i-. Rowton 28, 415 
 
 — V. Shaftesbury 534 
 
 — V. Shrewsbury 440 
 
 — z». Sidney 168, 190, 417 
 
 — V. St. Martin's 100 
 
 — V. Thanet 413 
 
 — V. Tooke 143, 202 
 
 — V. Turner 28 
 
 — V. Walker IT, 453 
 
 — V. Warickshall 150 
 
 — V. Watson 121, 126, 232 
 
 Rex or Regina v. Whitebread 129 
 
 — V. Whyley «. 48 
 
 • — V. Woodcock 273 
 
 — z/. Woodfall 638 
 
 Railroad Co. v. Schulz n. 401 
 
 Ramsdell v. Clark 615 
 
 Rankin v. Fidelity Ins. T. & S. 
 
 D. Co n. 746 
 
 Read v. Brookman n. 222 
 
 — i". Hide 190 
 
 Reynolds v. Burgess S. T. Co... 377 
 Rickerson v. Hartford Fire Ins. 
 
 Co 668 
 
 Ringhouse v. Keener n. 301 
 
 Robbins v. Windover dzz 
 
 Robinson v. Dewhurst ■■ n. 298 
 
 Robson V. Kemp n. 521 
 
 Roche V. Railroad Co 329 
 
 Rogers v. Brent 383 
 
 Rookwood's Trial 123 
 
 Roosa V. Loan Co n. 328 
 
 Ross V. Demoss 393 
 
 Rowt's Administratrix v. Kile's 
 
 Admin istrator 96 
 
 Rucker v. Eddings 382 
 
 Rush V. French 16, 19 
 
 Rusling V. Rusling 337 
 
 Russell V. Jackson n. 528 
 
 Sayles v. Briggs 629 
 
 Schmisseur v. Beatrie 724 
 
 Scoggin V. Dalrymple 294 
 
 Scott V. Sampson 32 
 
 — V. London & St. K. Docks Co. 
 729 
 
 Seibles v. Blackhead ». 395 
 
 Shaftesbury's Trial 534 
 
 Shailer v. Bumstead «. 337 
 
 Shaw V. Moore n. 359 
 
 Sheehan v. Kearney ». 722 
 
 Shepherd v. Thompson n. 295 
 
 Shields v. Boucher , 280 
 
 Shrewsbury's Trial 440 
 
 Sidney's Trail 168, 190, 417 
 
 Siegfried v. Levan 204 
 
 Singleton v. Bremar 208 
 
 Sisson V. Railroad Co 325 
 
 Skinner v. Great Northern R. Co 
 
 52s 
 
 Slatterie v. Pooley 238 
 
 Smith V. Blakey 276, 291 
 
 — V. Hughes n. 669 
 
 — V. Rentz 285 
 
 — V. South Royalton Bank. .,w. 594 
 
 — V. Young «. 236 
 
 Snow V. R. Co n. 396 
 
 SomeS i). Brewer n. 594 
 
 Soule's Case 473 
 
 Springer v. Chicago n. 164 
 
 St. John V. Lofland n. 88 
 
 Stafford v. Fargo n. 388 
 
 Stamper v. Griffin, 203 
 
LIST OF STATUTES QUOTED. 
 
 ENGLAND. 
 
 Statutes at Large. 
 
 27 H. VIII, c. 16 648 
 
 32 H. VIII, c. I, ii 649 
 
 5 & 6 Edw. VI, c. II, §12 173 
 
 5 Eliz. c. 9, § 12 441 
 
 7 James I, c. 12 282 
 
 29 Car. II, c. 3 §§ I, 3, 4. 7, 9 • -649 
 
 —is 17s, 649 
 
 — §§17, 20 650 
 
 —§19 "• 17s. 650 
 
 7 Wm. Ill, c. 3, §2 173 
 
 — c. 7 173 
 
 7 & 8 Wm. Ill, c. 3. § 7 442 
 
 4 & 5 Anne, c. 16, §8 163 
 
 46 Geo. Ill, c. 37 n. 460 
 
 54 Geo. Ill, c. 170 775 
 
 3 & 4 Wm. IV, c. 42 775 
 
 Rules and Practice, Hilary Term, 
 
 4 Wm. IV, No. 20 768 
 
 3 & 4 Vict., c. 26 775 
 
 6 & 7 Vict, c. 85 775 
 
 8 & 9 Vict, c. 113, § I n. 220 
 
 9 & 10 Vict, c. 95 775 
 
 14 & 15 Vict, c. 99 316 
 
 — §§i, 3, 4 775 
 
 — §6 375 
 
 16 & 17 Vict, c. 83, §§ I, 2, 3 776 
 
 17 & 18 Vict, c. 125, §22 120 
 
 ' — §24 240 
 
 —§25 243 
 
 — §26 247 
 
 —§27 428 
 
 — §50 375 
 
 22 & 23 Vict., c. 61, § 6 776 
 
 32 & 33 Vict., c. 68, §§2, 3 776 
 
 40 & 41 Vict, c. 14 776 
 
 48 & 49 Vict., c. 69, § 4. . . . .360, 776 
 
 52 & 53 Vict, c. 44, §8 776 
 
 61 & 62 Vict, c. 36, §1 776 
 
 CALIFORNIA. 
 
 Constitution 1879. 
 Art. I. §4 360 
 
 Penal Code J872. 
 
 §675 779 
 
 §§867, 868 363 
 
 f926 535 
 
 88 1099, HOC, 1102 779 
 
 § 1106 189 
 
 § 1 120 n. 352 
 
 88 1322, 1323 
 § 1330 
 
 PAGt 
 
 779 
 
 4SI 
 
 Code of Civil Procedure 1872. 
 
 §§447, 448, 449 769 
 
 |S9S • 763 
 
 881308, 1315 252 
 
 §§1879, i88o 77S 
 
 §1881 S08, 779 
 
 ^ —par. 4 547 
 
 § 1882 509, 
 
 §1893 316 
 
 § 1900 322 
 
 § 1901 .■ 316. 
 
 1905, 1906 321 
 
 §1918 
 § 1919 
 § 1944 
 § 1948 
 § 1951 
 § 1963 
 §2043 
 § 2049 
 §2051 
 
 .316 
 .310 
 .42S 
 
 •315 
 .231 
 .322 
 .363 
 .120 
 
 .24J 
 
 812 
 
 COLORADO. 
 Annotated Statutes 1891. 
 §§ 185, 1168, 1170, 1171, 1172, 
 1173, 2780, 3382, 4785, 4816. .780 
 
 §§4818, 48x9, 4820, 4822 781 
 
 §§ 4823, 4824, 4825 782 
 
 Session Laws. 
 1893, p. 127. §3 782 
 
 CONNECTICUT. 
 General Statutes 1887. 
 
 §§1094, 1097 782 
 
 §§1098, 1099, 1623 783 
 
 GEORGIA. 
 
 Code 1895. 
 
 §3628 310 
 
 §5182 289 
 
 §§ S198, 5268, 5269 783 
 
 §§ 5270, 5272, 5273, 5274. 527s, 
 
 S276 784. 
 
 Criminal Code 1895. 
 §§104, 910, loio, loii 78s 
 
 Session Laws. 
 1897, p. S3 784 
 
LIST OF CASES QUOTED. 
 
 811 
 
 PAGE 
 
 William & Mary College v. 
 
 Powell u n. gi 
 
 "Williams v. R. Co n. 330 
 
 Willson V. Betts n. 203 
 
 Wilson V. Boerem 275 
 
 Wilson's Trial «. 108 
 
 Wilt V. Cutler n. 322 
 
 Winkley v. Kaime 680 
 
 Winn V. Patterson 244 
 
 Wiseman v. Green 679 
 
 Wolverton v. Commonwealth ... 17 
 
 Womack v. Hughes n. 309 
 
 Woodward v. Goulstone ». 335 
 
 PAGE 
 
 Worthington v. Menser n. 76 
 
 — V. Scribner n. 539 
 
 Wright V. Beckett 115 
 
 — V. Sharp ' 18 
 
 — V. Tatham 268, n. 349 
 
 — V. Telegraph Co 635 
 
 Xenos V. Wickham 556 
 
 Year Book, 7 H. IV. 41, S 7Si 
 
 Yost V. Conroy 409 
 
 Young V. Holmes n. 147 
 
LIST OF STATUTES QUOTED. 
 
 ENGLAND. 
 
 Statutes at Large. ^^^^ 
 
 27 H. VIII. c. 16 648 
 
 32 H. VIII, c. I, §1 ...649 
 
 5 & 6 Edw. VI, c. II, § 12 173 
 
 5 Eliz. c. 9, § 12 441 
 
 7 James I, c. 12 282 
 
 29 Car. II, c. 3 §§ I, 3, 4, 7, 9 ..649 
 
 — §5 17s, 649 
 
 — §§17, 20 650 
 
 —§19 n. 175, 650 
 
 7 Wm. Ill, c. 3, §2 173 
 
 — c. 7 173 
 
 7 & 8 Wm. Ill, c. 3, § 7 442 
 
 4 & 5 Anne, c. 16, §8 163 
 
 46 Geo. Ill, c. 37 n. 460 
 
 54 Geo. Ill, c. 170 775 
 
 3 & 4 Wm. IV, c. 42 775 
 
 Rules and Practice, Hilary Term, 
 
 4 Wm. IV, No. 20 768 
 
 3 & 4 Vict., t. 26 775 
 
 6 & 7 Vict., c. 85 775 
 
 8 & 9 Vict., c. 113, § I n. 220 
 
 9 & 10 Vict., c. 95 775 
 
 14 & 15 Vict., c. 99 316 
 
 — §§i, 3, 4 775 
 
 — §6 375 
 
 16 & 17 Vict., c. 83, §§ I, 2, 3. .. .776 
 
 17 & 18 Vict., c. 125, §22 120 
 
 ' — §24 240 
 
 —§25 243 
 
 — §26 247 
 
 — § 27 428 
 
 —§50 375 
 
 22 & 23 Vict, c. 61, §6 776 
 
 32 & 33 Vict., c. 68, §§2, 3 776 
 
 40 & 41 Vict., c. 14 776 
 
 48 & 49 Vict., c. 69, § 4. . . . .360, 776 
 
 52 & S3 Vict., c. 44, §8 776 
 
 61 & 62 Vict., c. 36, §1 776 
 
 CALIFORNIA. 
 
 Constitution 1879. 
 
 Art. I. §4 360 
 
 Penal Code 1872. 
 
 §675 779 
 
 §§867, 868 363 
 
 §926 535 
 
 §§1099, iioo, 1102 779 
 
 § 1106 189 
 
 §1120 n. 352 
 
 n 1322, 1323 
 § 1330 
 
 PAGfc 
 
 779 
 
 451 
 
 Code of Civil Procedure 1872. 
 
 §§447. 448, 449 769 
 
 §595 765 
 
 §§1308, 131S 252 
 
 §§1879, i88o 778 
 
 §1881 508, 779 
 
 „ TP^""- 4 547 
 
 § 1882 509. 
 
 § 1893 3ifr 
 
 § 1900 322 
 
 § igoi .• 316 
 
 190S, 1906 321 
 
 §1918 
 § 1919 
 §1944 
 § 1948 
 §1951 
 
 8 1963 
 §2043 
 § 2049 
 §2051 
 
 .316 
 .3ii> 
 .428 
 
 •315 
 .231 
 
 .322 
 • 363 
 .120 
 .243 
 
 812 
 
 COLORADO. 
 
 Annotated Statutes 1891. 
 
 §§ 185, 1168, 1170, 1171, 1172, 
 1173. 2780, 3382, 4785, 4816. .780 
 
 §§4818, 4819, 4820,, 4822 781 
 
 §§ 4823, 4824, 4825 782 
 
 Session Laws. 
 1893, p. 127, §3 782 
 
 CONNECTICUT. 
 
 General Statutes 1887. 
 
 §§1094, 1097 782 
 
 §§1098, 1099, 1623 783 
 
 GEORGIA. 
 
 Code 1895. 
 
 §3628 310 
 
 §5182 289 
 
 §§ 5198, 5268, 5269 783 
 
 §§ 5270, 5272, 5273, 5274, 5275, 
 
 5276 784 
 
 Criminal Code 1895. 
 §§104, 910, loio, loii 78s 
 
 Session Laws. 
 1897, p. 53 784 
 
LIST OF STATUTES QUOTED. 
 
 813 
 
 ILLINOIS. 
 
 Constitution 1S70. p^^g 
 
 Art. II, §3 360 
 
 Revised Statutes 1874. 
 
 C. 17. §6 785 
 
 C. 30, §20 310 
 
 — §35 231, 31S 
 
 —§36 231 
 
 C. 38, §29 189 
 
 —§§35, 426, 491 785 
 
 C. SI, 111. 2 786 
 
 — §3 289 
 
 —§§4, s 787 
 
 ^§6 368, 788 
 
 —§§7, 8 788 
 
 — §9 375 
 
 —§13 321 
 
 —§51 247 
 
 C. loi, §§3, 4 360 
 
 C. no, §20 376 
 
 -§34 769 
 
 —§§43, 44 704 
 
 Session Laws. 
 
 1893, June 17 785 
 
 1901, May II, §3 786 
 
 IOWA. 
 Constitution i8s7~ 
 
 Art. I, §4 788 
 
 Code 1897. 
 
 §§ 4601, 4602, 4603, 4604 788 
 
 §§4606, 4607 789 
 
 §4608 n. 509 
 
 §4621 315 
 
 §§ 4622, 4623 289 
 
 §4635 317 
 
 §§ 5267, 5268, 5269 537 
 
 §§5484, 5485 789 
 
 KANSAS. 
 General Statutes 1897. 
 C. 95, §§380, 381 376 
 
 MAINE. 
 Public Statutes 1883. 
 
 C. 134, §19 503 
 
 MASSACHUSETTS. 
 Plymouth Colony Laws 196 284 
 
 Public Statutes 1882. 
 C. 145, §31 189 
 
 Revised Laws 1902. 
 C. 151, §39 189 
 
 C. 173. §6 
 
 •376 
 
 C. 173, § 35 368, 376 
 
 —§957-63 368, 376 
 
 C. 175, §§i8, 19 361 
 
 — §20 789 
 
 — §21 790 
 
 —§66 ." 296 
 
 —§70 247 
 
 MICHIGAN. 
 Compiled Laws 1897. 
 
 C. 282 (original numbering) 
 
 — §§99, 100, loi 790 
 
 — §102 791 
 
 § 8652 (editor's numbering) 792 
 
 §§11883, "893, 11934 365 
 
 Session Laws. 
 
 1887, No. 82 792 
 
 1897, No. 212 792 
 
 MINNESOTA. 
 
 General Statutes 1894. 
 
 §§642, 1191, 2007 792 
 
 §§ 2216 794 
 
 §§ 2561, 5658, 5659 792 
 
 §§5660, 5661, 5662, 6841 793 
 
 §§7324, 7325 794 
 
 MISSOURI 
 
 Revised Statutes 1899. 
 
 §§2635, 2636, 2637, 2638 794 
 
 §§4652, 4654, 4655, 4656 795 
 
 § § 4659, 4680 796 
 
 NEBRASKA. 
 
 Compiled Statutes 1899. 
 
 § 5970 322 
 
 NEW YORK. 
 
 Constitution 1893. 
 
 Art. XIII, §4 796 
 
 Code of Civil Procedure 1877. 
 
 §735 769 
 
 §§803, 804-809 377 
 
 §§828, 829 796 
 
 §§831, 832 797 
 
 §833 550 
 
 §§834, 836 547 
 
 fSso 797 
 
 §870 368 
 
 §935 232, 310 
 
 §947 232 
 
 §1914 377 
 
 Code of Criminal Procedure 1881. 
 §§io, 392, 393 797 
 
814 
 
 LIST OF STATUTES QUOTED. 
 
 Penal Code 1881. ^^^^ 
 
 §§714, 715 797 
 
 Rules of the Supreme Court. 
 
 1895, Nos. 14-17 377 
 
 Session Laws. 
 
 1876, c. 182, § 1 798 
 
 1880, c. 36, § 1 428 
 
 1883, c. 19s, §1 247 
 
 1888, c. SSS. 428 
 
 1892, c. 689, § IIS 798 
 
 OHIO. 
 
 Annotated Revised Statutes i8g8. 
 
 §§5240, 5241, 5242 798 
 
 §§ 5697, 7284, 7285 799 
 
 OREGON. 
 
 Codes and General Laws l8p2. 
 
 i§7i2, par. 4, 713 547 
 
 PENNSYLVANIA. 
 Digest of Laws i8g6. 
 
 Desertion 3 803 
 
 Witnesses i, 2, 3, 4, 8, 9, 10 800 
 
 >— II, 12, 14, IS, 16 ■ 801 
 
 — 18, 21, 22 802 
 
 Session Laws. 
 
 1899, Pub. L. 41, §§ I, 2 803 
 
 1903, No. 32 803 
 
 UNITED STATES. 
 Constitution 1787. page 
 
 Art. Ill, §3 173 
 
 Art. IV, §1 321 
 
 Amend. V 474 
 
 Amend. VI 269, 442 
 
 Revised Statutes 1878. 
 § 721 s 
 
 §724 377 
 
 § 824 s 
 
 § 8s8 776 
 
 §§861, 863, 86s, 866 271 
 
 § 870 n. 446, 451 
 
 §876 4S1 
 
 §905 317. 321 
 
 §906 317 
 
 § 1033 365 
 
 §§1078, 1079, 1977, 2140, 5392 ...777 
 
 Session Laws. 
 
 7189, c. 20, § IS 377 
 
 1874, June 22, c. 391, §8 777 
 
 1878 March 16, c. 37 777 
 
 1883, March 3, c. 116, §6 778 
 
 1887, March 3, c. 3S9, §8 778 
 
 c. 397. §1 778 
 
 1903, Feb. S, c. 487, §7 777 
 
 Equity Rules. 
 No. 91 361 
 
 WISCONSIN. 
 
 Statutes 1898. 
 
 §§4068, 4069 803 
 
 §§4070,- 4071, 4072, 4073, 4085... 804 
 
TOPICAL INDEX. 
 
 CASE NO. 
 
 Account-books — as memoranda to 
 
 refresh recollection. .88, 90, 95 
 
 — as admissions 143 
 
 — as requiring or allowing 
 proof of all connected 
 
 entries 213 
 
 — as exceptions to the Hearsay 
 rule: 
 — statements of facts against 
 
 interest 293 
 
 — regular entries 301-311 
 
 — official records 325 
 
 Admissions — of parties in civil 
 
 cases 134-148 
 
 — of accused persons (confes- 
 sions) 146, 149-ISS, 185-190 
 
 — of agents or privies. .. .138-140 
 — of counsel (judicial admis- 
 sions) 642-647 
 
 Adverse Possession — as evidenced 
 
 by verbal acts 363 
 
 Affidavit — not admissible under 
 
 Hearsay rule 281 
 
 Affirmative — burden of proving 
 
 the 604 
 
 Age — hearsay evidence of 298 
 
 — inspection, as evidence of. .159 
 
 — of ancient document 220 
 
 Agent — admissions of 138 
 
 — of undisclosed principal .... 561 
 — verbal acts of, as res gestae. 360 
 Alteration — of a will, testator's 
 
 statement as evidence of. .352 
 
 — parol evidence of S47, 594 
 
 Ambiguity — latent and patent 594 
 
 — interpretation of, in gen- 
 eral 585, 596 
 
 Ancient Document — as evidenced 
 
 by age and custody. . . .220, 221 
 Attesting Witnesses — must be 
 
 called or accounted for. 260-268 
 — proof of attestation essen- 
 tial 179, 579 
 
 Attorney — testimony of, as objec- 
 tionable 370, 371, 409 
 
 — as agent to make admis- 
 sions .' 144, 643 
 
 — privileged communications 
 
 to . ._. 496-507 
 
 Authentication of Documents — in 
 
 general 215-219 
 
 — by age 220-221 
 
 — by contents 222-224 
 
 — by official custody 225 
 
 — by seal 226-233 
 
 — by certificate or register. . . . 
 326.329, 333-341 
 
 CASE NO. 
 Bacon's Maxim 594 
 
 Bastardizing Issue 184 
 
 Best Evidence Rule — in general.. 162 
 — see also Documents; Attest- 
 ing Witness. 
 Bias — of a witness, evidence 
 
 of 118-119 
 
 Bigamy — in proof of marriage by 
 
 eye-witness 194-197 
 
 — by confession 187 1 
 
 Bill of Exchange — collateral agree- [ 
 ment, shown by parol. .562, 563, 
 
 — delivery in escrow 532 
 
 — protest of notary 3331 
 
 Birth — register of, as evidence. ... j 
 
 310, 325' 
 
 Blank — delivery or signature of a 
 
 document in 530, 53 1, 539 
 
 Bodily Condition — declarations of 
 
 injured person as to. . . .348-350 
 — privilege of party as to in- 
 spection of 462, 463, 479 
 
 Bookkeeper — entries of, as admis- 
 sible 307-311 
 
 — as refreshing recollec- 
 tion 88-95 
 
 Books of Account — see Account- 
 Books. 
 Boundaries — deceased person's 
 
 declarations of 315, 316 
 
 — official survey of 330 
 
 — judicial notice of 640 
 
 Burden of Proof — general theory 
 
 of 604, 605 
 
 — rules for determining. .. .606-614 
 — proof beyond reasonable 
 
 doubt 617, 618 
 
 — ^by preponderance 619 
 
 — in will cases 620 
 
 — in criminal cases... 61 1, 321, 625 
 — in negligence issues 623 
 
 Capacity — testamentary; see San- 
 ity. 
 Carefulness — see Negligence. 
 Certificate — by officer, when ad- 
 missible as hearsay 332-334 
 
 — authenticated by official seal 
 
 228-231 
 
 —of marriage, when admissible 
 
 as hearsay 310, 325 
 
 Certified Copy — of a public docu- 
 ment, when admissible as 
 
 hearsay 336-341 
 
 — not admissible unless original 
 is accounted for 241-244 
 
 815 
 
816 
 
 TOPICAL INDEX. 
 
 CASE NO. 
 Certified copy — authenticated by 
 
 official seal 228-231 
 
 — whether preferred to sworn 
 
 copy 256 
 
 Chancery rules of evidence in... 4 
 — discovery from opponent 
 
 in 386, 392, 460, 461 
 
 Character — of an accused, as evi- 
 dence '. .21-24 
 
 — as evidenced by conduct. 33-38 
 — by reputation . . . .319-322 
 
 — ^by opinion 424, 425 
 
 — of a civil party, as evidence 
 
 •■■•; 25-29 
 
 — evidenced by conduct. . . . 
 
 37, 39, 40 
 
 — by reputation . . . .319-322 
 
 — of a witness, as evidence. 115-117 
 
 — evidenced by conduct. 120-126 
 
 — by reputation 319-322 
 
 — by opinion 1 16, 426 
 
 — impeaching one's own wit- 
 ness 108-111 
 
 — restoration of credit 156 
 
 Chattel — possession of stolen. .32, 625 
 — failure to produce, as an ad- 
 mission 147, 148 
 
 — whether production is neces- 
 sary or allowable 160, 236 
 
 — inspection of, before trial. . . .397 
 — obtained by illegal search. . .440 
 — party's privilege not to pro- 
 duce 461 
 
 Child — as witness 61 
 
 — capacity to take the oath. 376, 377 
 Circumstantial Evidence — defined . 16 
 
 — relative value of 17 
 
 — rules for different kinds of. 1-57 
 — whether sufficient for corpus 
 
 delicti 188-190 
 
 Clergyman — privileged communi- 
 cations to 524, 525 
 
 Client — see Attorney. 
 
 Co-indictee — as witness 73 
 
 Cohabitation — as evidence of mar- 
 riage 192-197, 318 
 
 Collateral Fact — as too remote in 
 
 relevancy 19 
 
 — as complicating the issues. .. 20 
 — in contradiction of a witness 
 
 127-131 
 
 — producing a document form- 
 ing a 250, 251 
 
 Commercial Reports — under the 
 
 Hearsay rule 347 
 
 Compromise — offer to, as an ad- 
 mission 144 
 
 Compulsory Process — to obtain 
 
 witnesses 442-444 
 
 — to compel bodily exposure. . . 
 
 462, 463. 479 
 
 — to obtain absent witness' tes- 
 timony pending continu- 
 ance 64s 
 
 CASE NO. 
 
 Conclusiveness — of a magistrate's 
 
 report of testimony 270 
 
 —of a judicial admission 642 
 
 — of an ordinary admission ..135 
 Confession — of an accused person, 
 
 as admissible 
 
 — as insufficient to convict.. 
 — whether the whole must be 
 
 proved 
 
 Confidential Communication — in 
 
 general 494, 495 
 
 — see also Privilege. 
 Consciousness of Guilt — as evi- 
 dence 14s, 146 
 
 Consideration — recital of, varied 
 
 by parol 559 
 
 Constitutional Rules — for the right 
 
 of confrontation 285 
 
 — for compulsory process. .446, 645 
 
 — for treason 171 
 
 Consul — certificate of 337 
 
 Contents — of a document; see 
 
 Document. 
 Contradiction — of one's own wit- 
 ness 109-114 
 
 — of other witnesses 127-133 
 
 Conversation — to vary a written 
 instrument; see Parol Evi- 
 dence. 
 — meaning of, proved by opin- 
 ion evidence 442, 443 
 
 — whole must be proved . .202-205 
 
 — may be proved 210-214 
 
 Conviction of Crime — as a dis- 
 qualification 63, 64 
 
 — in impeachment 123 
 
 — mode of proving 257 
 
 Copy of a Document — -not to be 
 used till original is account- 
 ed for 235-255 
 
 — preference betv^een kinds of 
 
 copies 256-258 
 
 — copy of a copy 259 
 
 — admissibility of a certified 
 
 copy 336-341 
 
 — of a printed copy 342-343 
 
 Corporal^ Injury — expressions of 
 
 pain caused by 348-350 
 
 — inspection of, before trial. . . .397 
 — privilege against disclosure. . 
 
 •••. 462, 463 
 
 Corporation — seal of, whether pre- 
 sumed genuine 232 
 
 — records of, whether contra- 
 
 dictable by parol 576 
 
 Corpus Delicti — mode of required 
 
 proof 187-190 
 
 Corroboration of Witness — by 
 
 good character 156 
 
 — ^by consistent statements. 157, 158 
 — required for treason, perjury, 
 
 etc 180-183 
 
 — for accused's confession. . 
 187, 188' 
 
TOPICAL INDEX. 
 
 817 
 
 CASE NO. 
 
 Counsel — see Attorney. 
 
 Court — seal of, presumed genuine 
 
 228, 229 
 
 Crime — other, as evidencing intent, 
 
 knowledge, etc 41-S0 
 
 — privilege not to disclose. 471-493 
 Criminal Conversation — proof of 
 
 marriage in action for. .194-196 
 Criminal Trial — right of confron- 
 tation in 285 
 
 — ^proof of corpus delicti in. 187-189 
 
 — calling eye-witnesses in 191 
 
 — tender of witness' expenses 
 
 in 446 
 
 — proof beyond reasonable 
 
 doubt in 618 
 
 — burden of proof of insanity 
 
 in 621 
 
 Cross-Examination — right to, in * 
 
 general 271, 281-285 
 
 — theory and art of 277-280 
 
 — mode of interrogation on. . . . 99 
 — putting in one's own case 
 
 on . 403-40S 
 
 — impeaching character on. 120-122 
 — waiver of privilege by an- 
 swering on 485-490 
 
 — showing a document on. .253-255 
 Custom — to vary the terms of a 
 
 document 555 
 
 — to interpret a document. 586, 588 
 
 Damages — party's character in 
 
 mitigation of 29 
 
 — opinion testimony to 419 
 
 Death — of deponent 287-289 
 
 — of hearsay declarant. 291, 295, 312 
 
 — of attesting witness 268 
 
 — ^provable by reputation. 298, 3i8» 
 — as affecting marital privilege 
 
 or disqualification y6, 510 
 
 Deceased — in homicide, threats by 
 
 30 
 
 Deed — execution of; see Authenti- 
 cation. 
 — original of; see Document. 
 — record of, as evidence . . . 327-329 
 — certified copy of, as evidence 
 
 336-338 
 
 — whether the whole must be 
 
 proved 206-209 
 
 — privilege for title-deeds 452 
 
 — recital in, contradicted by 
 
 parol 559 
 
 — intent or mistake in execu- 
 tion 535-547 
 
 —delivery 528-533 
 
 Defamation — character of plaintiff 
 
 in 29 
 
 Defendant — character of ; see 
 Character. 
 — privilege of; see Privilege. 
 
 CASE NO. 
 
 Defendant — admissions of; see 
 
 Admissions. 
 Demand — for a document; see 
 Notice to Produce. 
 
 Demurrer — to evidence 615, 616 
 
 Deposition — right of cross-exam- 
 ination on a 281-283 
 
 — issues and parties the same 
 
 on a 284 
 
 — death, illness, etc., of depo- 
 nent 288 
 
 Destruction — of original document, 
 
 as excusing production 238 
 
 — of evidence, as an admission 
 
 ^. . •••.• 147, 148 
 
 Dictionaries — as evidence 
 
 ^. 317.345,636 
 
 Direct Examination — order of evi- 
 dence on 399-402 
 
 Discovery — in chancery 
 
 ^. 385-397, 459-463 
 
 Disgrace — privilege against an- 
 swers involving 
 
 ^. 125, 126, 456, 457 
 
 Divorce — as affecting marital priv- 
 ilege 469. S09, 510 
 
 — confession of respondent 
 
 in ^ 185, 186 
 
 — ^presumption of 622 
 
 Docket — as constituting judicial 
 
 record 567, 568 
 
 Document — possession of, as evi- 
 dence of knowledge. .142, 143 
 — failure to produce, as evi- 
 dence of contents .... 147, 148 
 — ^proof of handwriting of, by 
 
 qualified witness 83-85 
 
 — by comparison of hands. . 
 
 ■■■; 427-435 
 
 — ^production of original, when 
 
 required 235-249 
 
 — exceptions to the rule... 
 
 250-255 
 
 — ^kinds of copy preferred. .256-259 
 — certified copy admissible. 336-341 
 — proof of genuineness; see 
 
 Authentication. 
 — showing to witness on cross- 
 examination 253-255 
 
 — putting in the whole. .. .206-214 
 — discovery of, from the op- 
 ponent before trial 391-397 
 
 — opponent's privilege in civil 
 
 cases 459-460 
 
 — in criminal matters . .477, 478 
 — interpretation of, by expert 
 
 testimony 423 
 
 — for Court, not jury ....". .632 
 — contradicted by parol; see 
 
 Parol Evidence Rule. 
 — ^public document, as an ex- 
 ception to the Hearsay rule ; 
 see OMcial Statements. 
 
818 
 
 TOPICAL INDEX. 
 
 CASE NO. 
 
 Dying Declaration — as exception 
 
 to the Hearsay rule... 291, 292 
 
 Employee — character of, for negli- 
 gence 27, 28 
 
 — ^negligent acts of 40 
 
 Entry — in a book, as aid to recol- 
 lection 87-96 
 
 — as exception to Hearsay 
 
 rule 301-311 
 
 Error — to impeach a witness. .127-129 
 Evidence — direct and circumstan- 
 tial, defined 16, 17 
 
 — offer of, mode of making. .10-12 
 
 — prima facie 61 1-616 
 
 — order of producing 399-405 
 
 — judge's decision upon admis- 
 sibility 627, 628 
 
 Examination — before a magis- 
 trate 270 
 
 —order of, on a trial 399-405 
 
 — mode of interrogation on. 97-106 
 — see also Cross-examination. 
 Exception — mode of taking ....12-15 
 Execution — of a document; see 
 Authentication; Handwrit- 
 ing. 
 Executive — privilege of .....517, 518 
 Executor — waiver of privilege by. 507 
 
 Expenses — of a witness 446, 447 
 
 Expert Witness — qualifications of, 
 
 in general 65-67 
 
 — as to sanity 82 
 
 — as to handwriting. 83-85, 435 
 — hypothetical questions to . 436-438 
 — opinion rule applied to. .410-416 
 — use of scientific books by . 344-346 
 Extrinsic Testimony — in aid of in- 
 terpretation 580-602 
 
 Eye-witness — of a crime 191 
 
 — of a marriage 194-197 
 
 Fact — ^judge or jury to determine 
 
 627-633 
 
 Failure — to make objection 12 
 
 — to produce evidence .... 147, 148 
 Family History — statements of, as 
 exception to the Hearsay 
 
 rule 295-299 
 
 Federal Law — of evidence in gen- 
 eral 5 
 
 — of certified copies 338, 341 
 
 Felony — conviction of, as disquali- 
 fying 62-64 
 
 — as impeaching 122, 123 
 
 Foreign Law — judicially noticed. .6^9 
 
 — mode of proof 66 
 
 Former Testimony — when admis- 
 sible 281-289 
 
 — proved by magistrate's re- 
 port 270 
 
 — whole must be proved 203 
 
 CASE NO. 
 
 Fraud — former, as evidence of in- 
 tent 45, 46 
 
 — shown by parol 558 
 
 Frauds, Statute of — as requiring a 
 
 writing 577, 578 
 
 Fright — of other animals, as evi- 
 dence 53, 55 
 
 Grand Jury — indorsement of 
 
 names of witnesses 384 
 
 — privilege for testimony be- 
 fore ...512-514 
 
 — impeachment of indictment 
 
 by parol 575 
 
 Grantee — grantor,'s admissions, 
 
 used against 139, 140 
 
 — producing original deed of.. 243 
 
 — deed delivered in escrow 
 to 528-533 
 
 Handwriting — qualifications of 
 
 witnesses to 83-85 
 
 — comparison of specimens 
 
 of 427-435 
 
 Hearsay Rule — general theory 
 
 of 271-280 
 
 — exceptions to 290-359 
 
 — rule not applicable 360-367 
 
 — rule applied to court officers 
 
 •. 368-371 
 
 — witness' knowledge based on 
 
 hearsay 79-8i 
 
 History — books of, as evidence... 
 
 .-■•.-.■ : 317, 345 
 
 — ^j udicial notice of facts of . . . 636 
 Homicide — deceased's threats as 
 
 evidence 30 
 
 — proof of corpus delicti. ..187-190 
 — burden of proof of sanity in. 621 
 Husband — testimony of ; see Mari- 
 tal Relationship. 
 HjT)othetical Question — as re- 
 quired or allowable . . . .436-438 
 
 Illegitimacy — parents' proof of ... . 184 
 Illness — declarations asserting 348-350 
 — as excusing deponent's at- 
 tendance 288 
 
 Impeachment — of a witness, by 
 
 moral character 115-117 
 
 — by conduct 120-126 
 
 — by bias or interest. ..118, 119 
 
 — by contradiction 127-129 
 
 — ^by self-contradiction. 130-133 
 — who may be impeached . . 
 
 108-114 
 
 — expert to handwriting. . . .435 
 Indictment — list of witnesses in- 
 dorsed on 384. 
 
 — contradicted by parol 575. 
 
 — used to impeach a witness. ..123 
 
TOPICAL INDEX. 
 
 819 
 
 CASE NO. 
 
 Infamy — as disqualifying a wit- 
 ness 63, S4 
 
 — as impeaching a witness 122, 123 
 — as privileged from answer. . 
 
 4S6, 457 
 
 Informer — communication by, as 
 
 privileged 515 
 
 Inspection — of premises ....397, 461 
 — of corporal injury. .397, 462, 463 
 — of document. . .391-396, 459, 460 
 Insurance — opinion as to materi- 
 
 ability in 420 
 
 Intent — as evidenced by other 
 
 crimes 43-5° 
 
 — as evidenced by opinion. .. .422 
 — determined by judge or jury 
 
 631, 633 
 
 — proof of, by, parol ; see Parol 
 Evidence. 
 Interest — of a witness, as disqual- 
 ifying 68-73 
 
 —as impeaching 119 
 
 Interpretation — of documents, 
 
 rules for 580-602 
 
 — judge or jury to determine. 632 
 
 — by opinion evidence 423 
 
 Interrogatory — to opponent in dis- 
 covery 385-340 
 
 Judge — function of judge and 
 
 jury 627-633 
 
 — as witness 369, 408, 634, 635 
 
 — ^judicial notice by . . 634, 641 
 
 — determination of privilege by 
 
 484-487 
 
 Judgment — of conviction of crime, 
 
 mode of proving 257 
 
 — certified copy of, when ad- 
 missible 336-338 
 
 — proving the whole of. ..206-209 
 — contradicting the record 
 
 of 567, 568 
 
 Judicial Admission — rules for 642-647 
 
 Judicial Notice — rules for 634-641 
 
 Judicial Record — contradicted by 
 
 parol 567, 568 
 
 — see also Judgment. 
 Juror — function of judge and 
 
 jurors 627-633 
 
 — as witness 368, 407 
 
 — judicial notice by 637 
 
 — privilege for communications 
 
 by 511-514 
 
 — affidavit to impeach verdict. 
 569-575 
 
 Knowledge — mode of evidencing 
 
 a party's 41, 42 
 
 — witness' qualifications as to. 
 77-86 
 
 Land — boundaries of, evidenced 
 
 by hearsay 315. 3i6 
 
 CASE NO. 
 
 Larceny — possession of stolen 
 
 goods in evidence of 32, 625 
 
 Latent Ambiguity — parol evidence 
 
 of 594 
 
 Law — ^proof of, by expert 66 
 
 — ^judicial notice of 639 
 
 — judge or jury to determine. .631 
 Leading Questions — when allow- 
 able 98, 99 
 
 Ledger — as book of original en- 
 tries 303 
 
 Liability — privilege as to civil 458 
 
 Malicious Prosecution — burden of 
 
 proof in 608 
 
 Marital Relationship — disqualifica- 
 tion of husband or wife. .74-76 
 — privilege of husband or wife 
 
 .•••: 464-470 
 
 communications between hus- 
 band and wife 509, 510 
 
 Marriage — habit and repute, as 
 
 evidence of 192, 193, 318 
 
 — eye-witness required to prove 
 
 •. 194-197 
 
 — presumption of 622 
 
 Memory — modes of refreshing. .87-96 
 Mental Condition — evidenced by 
 
 acts 38 
 
 — by hearsay statements ... 348-357 
 — opinion evidence of. . . .417, 418 
 Mistake — in a document, evidenced 
 
 by parol 535-547 
 
 Negligence — character of a party 
 
 for 27 
 
 — conduct as evidence of 40 
 
 — opinion testimony to 413 
 
 — judge or jury to determine. .629 
 — burden of proof as to. . .612, 623 
 Notary — certificate of protest of.. 333 
 — seal of, presumed genuine. . 
 
 230, 231 
 
 Note, Promissory — mistake shown 
 
 by parol 539-545 
 
 — delivery in escrow 530-532 
 
 — collateral agreement by parol 
 
 562, 563 
 
 Notice — to produce an original 
 
 document 238-240 
 
 — of opponent's evidence before 
 
 trial 383-397 
 
 — to take a deposition. . . .282, 283 
 
 Novation — shown by parol 564 
 
 Number of Witnesses — rules re- 
 quiring a minimum .... 163-179 
 — rules fixing a maximum. .. .406 
 Nuncupative Will — under statute 
 
 of Frauds 577 
 
 Oath — rules for administration 
 
 of 373-377 
 
820 
 
 TOPICAL INDEX. 
 
 CASE NO. 
 
 Oath — accused's confession un- 
 
 .der 153-1SS 
 
 — impeaching witness' belief on 
 
 116, 424-426 
 
 — afBdavit under, not admis- 
 sible 281 
 
 Objection — to evidence, mode of 
 
 making ii-iS 
 
 — to witness, time of making. . 69 
 Offer — of evidence, mode of mak- 
 ing 10 
 
 — conditional 400, 401 
 
 Office Copy — see'Certified Copy. 
 Officer — public, register or certir 
 
 ficate of 323-343 
 
 secrets of, privilege for. . .515-519 
 Opinion — rules for testimony 
 
 of ... 410-438 
 
 Opponent — ^privilege of, in civil 
 
 cases 459-463 
 
 — discovery from, before trial 
 
 385-397 
 
 Original document — 
 — see Document. 
 Oyer and Profert — when requir- 
 ed 394 
 
 Parol Evidence— oi a document 
 not produced; see 
 Document. 
 Parol Evidence Rule — general 
 
 theory of 526 
 
 — proof of delivery not com- 
 pleted 527-533 
 
 — of mistake in execution. 535-547 
 
 — of collateral agreements 
 varying the terms 553-565 
 
 — of facts or declarations to 
 interpret the terms ...581-602 
 
 — applied to records and ver- 
 dicts 567-575 
 
 — applied to corporate acts.... 576 
 Parties — privilege of, in civil 
 
 cases 459-463 
 
 — disqualification of, by inter- 
 est 68-73 
 
 — character of, as evidence. .21-29 
 
 — conduct of, as evidence. . .33-40 
 
 — admissions of, as evidence 
 
 •. 134-148 
 
 — parol understanding of; see 
 
 Parole Evidence Rule. 
 — discovery by, before trial.385-390 
 Patent Ambiguity — proof of, by 
 
 parol .594 
 
 Patient — declarations of suffering 
 
 by .....348-350 
 
 — privileged communications 
 
 by ...520-523 
 
 Pedigree — hearsay declarations to 
 
 prove 295-299 
 
 Penitent — privileged communica- 
 tions by 524. 525 
 
 CASE NO. 
 
 Perjury — penalty for, as a security 
 
 for truth 378 
 
 — conviction of, in impeach- 
 ment 123 
 
 — ^proof of, by two witnesses. .172 
 
 Photograph — as evidence 105 
 
 Physician — declarations of pain 
 
 made to 348-350 
 
 —privileged communications 
 to 520-523 
 
 Plaintiff — see Parties. 
 
 Possession — of stolen goods, as 
 
 evidence 32 
 
 — as a presumption 625 
 
 — of land, evidenced by de- 
 clarations against interest. .293 
 — by declarations as res 
 
 gestae ; 363 
 
 — by grantor's admissions. .139 
 — by sundry declarations 
 312, 316 
 
 Preponderance — of evidence in 
 
 civil cases 619 
 
 Presumption — see Burden of Proof. 
 
 Price — evidenced by price-lists. . .347 
 
 Priest — privileged communications 
 
 to ;...S24, 525 
 
 Printed Copy — of a public docu- 
 ment as evidence 342, 343 
 
 Privilege — of not attending from 
 
 distance 448, 449 
 
 — of certain topics : 
 
 — irrelevant matters 451 
 
 — title-deeds 452 
 
 — trade secrets 453 
 
 — religious belief 454 
 
 — political votes 455 
 
 — disgracing facts 456, 457 
 
 — opponent in civil cases 
 
 459-463 
 
 — civil liability 458 
 
 — criminal liability_ . . . .471-493 
 — husband and wif e . . . 464-470 
 — of certain communications : 
 
 — in general 494 
 
 — telegrams 495 
 
 — attorney and client ..496-507 
 — husband and wife . .509, 510 
 
 —jurors 511-S14 
 
 — government and informer 
 
 515-519 
 
 — official secrets 516-519 
 
 — physician and patient .520-523 
 
 — priest and penitent. .524, 525 
 
 — mode of making claim. .450, 483 
 
 Production of Document — see 
 Document' Discovery. 
 
 Profert — when required 394 
 
 Public Document — when admissi- 
 ble in evidence: 
 — registers and records . 323-329 
 — returns and reports. .330, 331 
 — certificates 332-343 
 
TOPICAL INDEX. 
 
 831 
 
 CASE NO. 
 
 Public Document — when original 
 
 must be produced 235-255 
 
 — when provable by certified 
 
 copy 336-343 
 
 — when certified copy is pre- 
 ferred 256-259 
 
 — authenticated by seal or cus- 
 tody 226-233 
 
 — ^privileged as State secret.5 16-519 
 
 Question — in leading form. ..98, 99 
 — before proving self-contra- 
 diction 132, 133 
 
 Rape — evidence of intent in 47 
 
 Real Evidence — rules aliowing.159-161 
 Reasonable Doubt — proof beyond, 
 
 in criminal cases 618 
 
 Rebuttal — order of evidence in... 399 
 Receipt — contradicted by parol .... 558 
 Recital — in ancient deed, when ad- 
 missible 313 
 
 — of consideration, contradict- 
 ed by parol 559 
 
 RecoUection^modes of aiding. .87-96 
 Record — ^by public officer, when 
 
 admissible 325-329 
 
 — certified copy of 336-341 
 
 — judicial, not contradicted by 
 
 parol 567, 568 
 
 Refreshing Memory — modes of. 87-96 
 Register — of marriages, etc., as 
 
 regular entry 310 
 
 — by public officer 325-329 
 
 Regular Entries — admissible by 
 exception to the hearsay 
 
 rule ■■■ -301-311 
 
 Religious Belief — as required for 
 
 the oath -373-377 
 
 — as privileged from disclo- 
 sure 454 
 
 Report — of a public officer, as 
 
 admissible 330, 331 
 
 — of a magistrate, as conclu- 
 sive 270 
 
 Reputation — ^to prove character 
 
 319-322 
 
 — marriage 192, 193, 318 
 
 — general history 317 
 
 — boundaries 315, 316 
 
 Res Gestae — spontaneous declara- 
 tions after injuries 358, 359 
 
 — verbal acts as part of... 361-364 
 — utterances material to issues. 360 
 Res ipsa loquitur — as presuming 
 
 negligence 624 
 
 Return — of a surveyor 330 
 
 Sanity — conduct as evidence of. . . 38 
 — qualifications of witness to.. 82 
 
 — opinion evidence of 417, 418 
 
 ■ — burden of proof of. 606, 620, 621 
 
 Scientific Books— as evidence.344-346 
 
 CASE NO. 
 
 Seal — as evidence of a docu- 
 ment's genuineness . . . .226-233 
 
 Secret — of State, privileged. ..515-519 
 
 Self-Contradiction — of a witness, 
 
 in impeachment 130-133 
 
 — showing a document used 
 in 253-255 
 
 Self-Crimination — privilege 
 
 against 471-493 
 
 Separation of Witnesses — when 
 
 allowable 381, 382 
 
 Signature — see Attesting Witness; 
 Handwriting. 
 
 Silence — as an admission .... 141-143 
 
 Similar Instances — of Eccidents, 
 
 effects, etc 51-57 
 
 Spoliation — of evidence, as an ad- 
 mission 147, 148 
 
 State — seal of, presumed genuine. 228 
 — secrets of, privileged . . . .515-519 
 
 Statute — proved by printed copy 
 
 .••:•. : 342, 343 
 
 — judicial notice of 638, 639 
 
 Stolen Goods — possession of, as 
 
 evidence 32 
 
 — as a presumption 625 
 
 Subpoena — rules for 442-449 
 
 Sufficiency — of evidence to go to 
 
 the jury 611-616 
 
 Surveyor — return of, as evidence. 330 
 Survivor — disqualified as witness. 71 
 
 Telegram — production of original. 246 
 — answer assumed genuine .... 223 
 Telephone — answer assumed gen- 
 uine 224 
 
 Tenancy — production of lease to 
 
 prove 247 
 
 Testator — declarations of, as ex- 
 ception to the hearsay rule 
 
 3S2-3S7 
 
 — opinion testimony to capacity 
 
 of.; 417, 418 
 
 — intent or mistake in execut- 
 ing will .-■547 
 
 — burden of proof of sanity 
 
 of 606, 620 
 
 — declarations to interpret 
 
 will 591-602 
 
 Threats — of deceased in homicide, 30 
 Treason — proved by two wit- 
 nesses 171, 173 
 
 Undisclosed Principal — shown by 
 
 parol 561 
 
 Usage — to vary the terms of a 
 
 document 555 
 
 — to interpret a document. 586, 588 
 
 Value — opinion testimony to 419 
 
 Verdict — impeached by juror's af- 
 fidavit 569-575 
 
 View — ^by jury, when allowable. .161 
 
822 
 
 TOPICAL INDEX. 
 
 CASE NO. 
 
 Voir dire — ^proof of interest upon. 69 
 Vote — privilege not to disclose. . . .455 
 
 Waiver — of privilege against self- 
 crimination 491-493 
 
 — for client's communica- 
 tions 506, 507 
 
 Whole — of an utterance, when it 
 
 must be offered 206-209 
 
 — when it may be offered 
 212, 213 
 
 Wife — see Marital Relationship. 
 
 Will — ^proof by two witnesses. 177-179 
 — by attesting witness.. 260-268 
 
 — substance of a lost 208 
 
 — burden of proof of execu- 
 tion 606,620 
 
 — see also Testator. 
 
 Witness — qualifications : 
 
 — in general 58 
 
 — sanity S9. 60 
 
 — infancy 61 
 
 — infamy 62-64 
 
 — experience 66, 67 
 
 — interest 68-73 
 
 — marital relationship . . . .74-76 
 
 — ^knowledge 77-86 
 
 — recollection 87-96 
 
 — ^narration 97-106 
 
 CASE NO. 
 
 Witness — impeachment : 
 
 — who may be impeached 
 
 108-114 
 
 — moral character 115-117 
 
 — ^bias and interest 118, lig 
 
 —conduct, to evidence char- 
 acter 120-126 
 
 — contradiction by the wit- 
 nesses 127-129 
 
 — self-contradiction . . . 130-133 
 
 — supporting credit of 156-158 
 
 — requiring a minimum num- 
 ber of 163-179 
 
 — fixing a maximum number 
 of 406 
 
 — separation of 381, 382 
 
 — compulsory process 
 
 for 442-447, 64s 
 
 — expenses of 445, 446 
 
 — failure to produce, as an ad- 
 mission 147, 148 
 
 — attesting 260-268 
 
 — indorsement of, on indict- 
 ment 383, 384 
 
 — testimony of absent, admitted 
 to secure continuance .. 644, 645 
 
 — discovering names of, before 
 
 trial 390 
 
 Writing — see Document; Handwrit- 
 ing. 
 
w 893)4 
 
 W65 
 
 
 Author 
 
 Wigmore, John Henry 
 
 Vol. " 
 
 Title 
 
 Selection of Oases on Evidence 
 
 Copy ' 
 
 
 
 Date 
 
 Borrower's Name 
 
 
 
 
 
 
 - -