Oppel 25,1595: \ - Re Seo QGaornell Law School Library Cornell University Library iii 7 THE LAW AND PRINCIPLES oF BEB ViD EN © & ILLUSTRATED BY QUESTIONS AND ANSWERS By PETER FRANCISCO SMITH OF THE ATLANTA BAR ALBANY, N.Y: H. B. PARSONS, LAW BOOK PUBLISHER, 1895. a ee Copyrighted, 1895, BY HENRY B. PARSONS. te aed ag ieee To my distinguished and life-long friend, DR. ABRAHAM M. OWEN, Of Evansville, Indiana, whose life has been a constant sacrifice on the Altar of Suffering Humanity. THE AUTHOR. PREHEFACH. This work on the law and principles of evidence is offered to the public with the fervent wish that it may, at least, fill an humble place among the numerous trea- tises which have been published on the same subject. The author makes no pretension to an exhaustive discus- sion of the various branches of evidence, nor does he claim any originality except in the method of treat- ment What he has aimed to do, and hoped, in some measure, to accomplish, is to state the general principles in a succinct form, and in such a way as to impress them on the mind of the reader. Questions are asked and answered, and authorities cited to sustain the answers. A number of years since, the author undertook a careful review of all the English and American works on Evi- dence, and then made careful and exhaustive notes of the principles discussed. He had no intention of writing a book. It has since occurred to him that it might not be altogether unacceptable or unprofitable to the pro- fession to publish these notes in book form. This he has done in the work he now offers. With an honest purpose to simplify some of the most difficult subjects of evidence, he herewith submits the fruit of his labors. PETER FRANCISCO SMITH. ATLANTA, Ga., January, 1895. TABLE OF CONTENTS. CHAPTER I. PAGE NATURE OF EVIDENCE ....00060 66 cece cece tee eee ceeeeees eee. = 8-55 CHAPTER IL. WuHaT FACTS MAY BE BROUGHT TO THE ATTENTION OF JURY... ... 56-105 CHAPTER III. RULES GOVERNING WITNESSES 2.20 e 1 ee ete ec eet eee eer eee enneee 106-161 CHAPTER IV. RELEVANCY OF EVIDENCE .....-.0---205 ceeeee ee enwaraweuees a 162-189 CHAPTER V. PRIMARY AND SECONDARY EVIDENCE .....- 0 seeee ceecccceeseeeee 190-257 CHAPTER VI. JUDICIAL NOTICH ... «weer eee Se 258-274 CHAPTER VII. BURDEN OF PROOP: osiseasees arenes Glad ae aeauaw tee need 275-306 FOSTOPPE Dao fics. casue Fok 0 ae RES Aas acs peewee athena 807-338 ADMISSIBILITY..... .. sicitee Rene aemess aos rumemvaiaeue emake Dies 339-350 LIBEh AND SLANDER si-¢2%ssronsseds deaea abe aetanawibsiee seers So 351-367 DocuMENTARY aA cintyaliatelaeencd) 1 Gaile Ladycdadane sa! senehang Gucuete igenisesanemraiaiaras 368-411 TABLE OF CONTENTS. CHAPTER XIV. PAGE FRAUD AND: PERTURY tei.0 0s sus saaee yee eraser eevee. oer ccccccees 473-509 CHAPTER XV. PAROL <2 cancceia tow eee Me ot Shack Besa awunaaieneleeinee Cae oe 510-596 CHAPTER XVI. WELLTIG frases aie aivaiGh ole? a mtaleaele 6 tana GaSaar Sxteww oaene Mopmwla hye 0 18 570-597 CHAPTER XVII. DERDS ices: 3 ssi Seles aD VIRTA RRB LEER % DAG KNEES SERIES ee es 598-636 MASIMS) « wads) sierale's Ged B pihaaiatearmnly. apldeerlots ale kia s'ee eed’ whe vee» 637-650 INDEX 3 cssesins os een iaseiane eae sae CSG CASES WA TEDL E Eade a eo 651-674 LADLE OF GASES, TABLE OF CASES CITED A. PAGE Abbey v. Christy.......... ... 577 Abbott v. Andrews........ ... 417 Abbott v. Shepard............ 487 Abington v. Bridgewater ....98, 94 Abraham v. Watkins.......... 576 Adam v. Litchfield............. 607 Adams v. Adams.............. 606 Adams v. Barnes... ... ......- 452 Adams v. Coulliard............ 393 Adams v. Eames............. 420 Adams v. Fitzgerald........... 224 Adams v. Funk..... 428 433 Adams v. Humphreys. eens 423 Adams v. Stanyan...... ...... 33 Adams v. Swansea............- 23 Adams v. Thomas............. 544 Adams v. Utley....... ........ 443 Adams v. Way.... ..........- 260 Adams Ex. Co. v. Stettauers ... 277 Adams Ex. Co. v. Trego....... 87 Agnew v. Dumas ............. 503 Agricultural Co. v. Keeler...... 430 Ahern v. Collins. ............ 280 Ainsworth v. Miller ........... 607 Aitchison v. Dixon ............ 95 Albert v. Winn .........ceeeee 495 Alden v. Murdock .......... 90, 635 Alexander v. Ellison... -. 812 Alexander v. University... 312 Allard v. Greasert............. 487 Allegheny v. Nelson........... 273 Allen v. Aldrich.............. Allen v. Allen............. Allen v. Bank .........-... Allen v. Press Co...... Allen-v. Sales ...........ee000- Allen v. Seyfried.... ... eee Allen v. State ......ccesceseees Allen v. Thompson Allen v. Tysen.......0..eeee05 Allen v. Vincennes Allen v. Willard........... Alston v. Grantham.. ... Alston v. Wingfield.... Alter v. Berghans.............. Alvord v. Ashley...........005 89 Ambrose v. Raley......... ... 612 American Iron Co, v. Evans.... 433 American Tract Soc. v. Atwater. 590 Ames v. Foster...........0000 494 Ames v. Oakley ............... 168 PAGE Ames v. Snider........ eines 277 Ammerman v. Crosby......:... 279 Amory v. Fellowes...... ..... 578 Anderson v. AméS..........04. 386 Anderson v. Bruner. ..... ... 424 Anderson v. Dodd......... ... 615 Anderson v. Edwards ......... 393 Anderson v. Green. .......... 478 Anderson v. Gregory... ... . 319 Anderson v. Kent.............. 458 Anderson v. McPike........... 457 Anderson v. R. Co....... 54, 55, 424 Anderson v. Root.............. 222 Anderson v. Snow............. 383 Anderson Township v. Thomp- SOD este lenge n nase date 398 Andrews v. Anderson.......... 96 Andrews v. Calloway. ........ 378 Andrews v. Costican........... 503 Andrews v. Jones........ etvaes 495 Andrews v. Knox........5 w.e. 259 Angier v. Howard............. 407 Annesley v. Earl of Anglesea... 147 Ansley v. Meikle Anthony yv. Wilson ............ Argus Co. v. Mayor... x Armory v. Delamire.. ........ Armstrong v. Armstrong....... 576 Armstrong v. McDonald ....... 23 Armstrong v. Merrill.......... 617 Arnold v. Arnold ............. 585 Arnold v. Cord........0. sueee 476 Arnold v. R. Co..........e00c. 521 Arnold v. Stanfield........ ssiew 197 Arnold y. State...... ......... Arnold vy. Stedman Arnold v. Trice.. ... .......0. Artcher v. Zeh..........0.008. Arthur v. Gayle.............. Arthur v. Gordon a Arthur v. James....... Arta v. Grove. ..... ....-..... Ashley v. Martin ..... 168, 259, 26 Ashlock vy. Linder............. 412 Atcheson v. Mallon............ 516 Atherton v. Newall............ 488 Atherton v. Tilton..... ....... 40 Atkins v. Anderson... ........ 321 Atkinson v. Bell..... ......... 89 Atkinson v. St. Croix.......... 402 Atlantic Dock Co. v. Leavitt... 486 vill PAGE Atwood v. Lucas ......-..-..++ 491 Atwood v. Norton....... ..... 483 Auger Co, v. Whittier ......... 221 Augusta v. Winsor ............ i Austin v. Ellis ....... .....0.. Austin v. Holt ........ Austin v. Thompson Austin v. Walton...........-. Avan Vi PTY yo cca eoen ae ndess Avery v. Avery ........... . . 40 Avery v. Clemons. ........... 448 Ayers v. Hewett....... ....00. 406 Ayres v. Bane ...... ....... . 454 Ayres v. Duprey ......eseeevee 29 B. Babb v. Stromberg ........... 617 Babbett v. Young Bacon v. Eccles ... Bacon v. Frisbie............... Bacon v. Lincoln.............. Bacon v. Parker .........+.0-- Badlam v. Tucker Bailey v. Blanchard..... ..... 431 Bailey v. Taylor .............- 382 Baird v. Jackson ............05 40 Baker v. Briggs......... 00... 4385 Baker v. Collins.......... xe AD Baker v. Gunther ... .... .... 168 Baker v. Haskell ..... .... 421, 457 Baker v. Humphrey ........... 329 Baker v. Hunt .............--- 627 Baker v. Neff..............62- 327 Baker v. Prewitt . .. ........ 36 Baker v. Stackpoole... .... 428, 449 Baker v. Wygatt ............. 268 Baldock v. Atwood............ 503 Baldwin v. Ashley......... 184, 422 Baldwin v. Wallen............ 370 Ball v. Allen . ............-6. 529 Ball v. Winchester ............ 206 Ballard v. Perry........... ... 409 Ballentyne v. Wickersham..... 273 Ballinger v. Davis ........ 402, 406 Ballou v. Jones ..............- 436 Baltimore Co. v. Neal..... ... 145 Bamber v. Savage ... ...... 470 Banfield v. Parker............. 45 Bangor v. Brunswick... ...... 45 Bank v. Adams......... .... 550 Bank v. Baldwin.............. 555 Bank v. Ballou..... ....... .. 545 Bank v. Bank... .147, 229, 880, 402 424, 586 Bank v. Billings .............. 97 Bank v. Burgwyn............ « 287 Bank v. Call. ............0000- 394 Bank v. Carll................. 393 Bank v. Clark....... ......4.. 880 Bank v. Coleman.............. 551 TABLE OF CASES CITED. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. ) Bank v. Bank v. Bank v. Bank v. Murdock Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank vy, Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. Bank v. DaviSeccis iz 'sre.8 3:08 a sie Earle Harding... Harriss 42s sus vse Higginbottom Houser Knapp Page Peirce Triplett: :.csosweseweees Underhill ............. WaAIher viiinceecccesescs Barber v. Terrell .............. Barclay v. Hopkins........ Baring v. Clark..............-. 4 Barker v Bell.... .......20- 2 Barker v. Bradley ............. Barker v. Bushnell ............ Barker v. Fogg........... .. Barker v. Kuhn............... Barkman v. Hopkins .... ..... Barksdale v. Hopkins.......... Barnard v. Backhaus........... Barnes v. Bartlett.... 2.0.0... Barnes v. Lacon..............: Barnett Steamers v. Blackmar.. Barney v. Seeley Barnheimer v. Baldwin........ Barnstable v. Ballou........... Barons v. Brown............6 TABLE OF CaAsEs CITED. PAGE Barrett v. Murphy...... . .... 392 Barrett v. Russell...... ... 428, 433 Barron v. Frink........ a eekyoue 612 Barton.v. Tart sccse weadeew das 83 Burrow v. Brown.......... «++ 55 Ba ry v. Sansom..... ......06 526 Barry v. State.......-......66. 439 Barten v. Thompson........... 176 Bartholomew v. Farwell....... 389 Bartlett v. Bangor.. .. . 90 Bartlett v. Mystic River Corp.. _ 506 Bartlett v. Sawyer............. 224 Bascom v. Albertson........... 571 Bass v. R. Co... eee cee eee 454 Bassett v. Elmore ..... ....... 172 Basshor v. Forbes —...... ..-. 560 Batdorf v. Bank......-.....66- 30 Bates v. Sandy ............... 187 Battler v. Batchelder... ....... 45 Battles v. Laudenslager........ 176 Baucum v. George......... ..+ 457 Baxter v, Ellis. ........-.....- 421 Baxter v. Greenleaf........ ... Bayard v. Hargrove Baynard v. Norris. Bays v. Herring... ........... Beadles v. McElrath Beall v. Drane. ... Beall v. Fox ...cace8 cess sisucen Bean v. Smith............. 2... Beansley v. Brockway ........ 187 Beardslee v. Steinmeisch . .... 423 Beasley v. Watson............. 526 Beattie v. Hilliard......... 406, 407 Beatty v. Mason..............- 612 Beatty v. Society .... ....-... 827 Beaupland v. McKeen. ....... 612 Becker v. Van Valkenburgh.... 619 Beckwith v. Talbot............ 488 Beebe v. Wilkinson............ 825 Beeler v. Mayall............+.+ 488 Beecher v. Pettee.............. 455 Beeler v. Webb.. ........026-- 459 Beers v. Jackman.... ..,.. 392, 487 Beesman v. Tester....... ....- 19 Belcher v. Mulhall........ 2... 511 Belger v. Dinsmore............ 281 Bell v. Brumley .........---4- 523 Bell v. Denson ..............-. 614 Bell v. Hewitt. ............... 485 Bell v. Longworth......... B Bell v. McCawley.........-..-- Belote v. State .............. Belton v. Fisher ............+5. ‘Bempde v. Johnstone Benedict v. Cowden ..... Benedict v. Farlow. Benedict v. Fon du Lac........ 146 Benford v. Sanner ...........- 459 Benjamin v. Coventry ......... 121 B 1x PAGE Bennett v. Fulmer............. 409 Bennett v. Holmes......... 295, 425 428, 433 Benson v. Griffin .... ........ 146 Bentley v. Ward ... ......... 388 Benziger v. Miller............. 439 Bergman v. Roberts .... ...... 446 Bernard v. R. Co..............- 289 Berney v. State............... 454 Berohard v. Smith 428 Berry v. Cooper ...... 529 Berry v. Lathrop 435 Berry v. Nall .. ............. 178 Berry v. Osborne...... ee 19 Berryhill v. Kirchner.......... 404 Bertie v. Beaumont...... .... 384 Besshears v. Rowe............. 493 Bethune v. Hale.... .......... 268 Bettle v. Wilson. ...........-.. 606 Betts v. Loan Co...... .....00. 422 Beverly v. ae is tatyelecevevalavs 6138, 619 Bevier v. Galloway............ 80 Biddle Boggs v. fining Co..... 457 Bigelow v. Benedict .......... 515 Bigelow v. Foss ........ ..... 456 Bigelow v. Gillott.... «7+ 582 Bigelow v. Legg............... 536 Bigler v. Rehger ....... - «+ 128 BIMAS Viv States oie acsiaciaines lessees 416 Birchard v. Scott.............. 589 Bird v. Bird —... oe. ee 242 Bird v. Daggett ........... 184, 422 Bird v. Monroe.......... 2... 537 Bishop v. Spining............. 147 Bishop v. Winchester.... , ... 36 Bissel V. Prices ecg deseweeoes 282 Bissell v. Barry ........-...-.. 480 Bissell v Jeffersonville .... ... 456 Bivins v. McElroy............. Bixby v. Carskadden .......... Black v. De Camp... ... Black v. Lamb ...... Blaese v. Ins. Co.............. Blair v. Pelham..... ......... Blake v. Damon............ Blakey v. Johnson............. Blanchard v. Blackstone....... 424 Blanchard v. Isley ........... 515 Blanchard v. Steamboat Co.. .. 162 Blancjour v. Tutt Bland v. R. Co.... ........... Bland v. Talley............... Bland v. Warren........ ..... Bliss v. Brainerd.......... ... Bliss v. McIntyre...... Bliss v. Sevier..............006 Blogg v Kets secyesas Bloomington y. Shirock . x PAGE Blount v. Riley ............... 442 Blunt v. Strong .............65 121 Board v. Meisenheimer ... .... 403 Bogert v. Phelps............. 458 Boggs v. Bank ........ ....... 229 Bohannan v. Chapman ........ 423 Bolling v. State ........ 2... 287 Bond v. Central Bank ......... 198 Bonner v. Metcalf ............. 436 Boogher v. Neece ............- 619 Booker v. Bell. . ......... ... 627 Bookout v. Shannon........... 887 Boor v. Lowrey .......+-...05: 435 Booth v. Small............... 612 Boothby v. Stanley..... ...... 382 Borthell v. Wilbur............. 224 Bosley v. Bosley .............- 583 Bostwick v. Duncan....,...... 545 Boswell v. Blackman...?....., 435 Bottoms v. Mithvin.... ....... 614 Bowe v. Dotterer.............. 214 Bowen v. Johnson............. 582 Bowen v. Rutherford.......... 295 Bowen v. School Dist.... .. 55, 426 Bower v. Smith. .. .......0.. 387 Bowers v. State ........... 120, 123 Bowie v. Maddox.............. 454 Bowker v. Delong.. .......... 427 Bowler-v. Huston.............. 540 Bowman v. Sanborn .......... 403 Bowser v. Cravener. . 23 Box v. Lawrence..... ....... 610 Boyce v. Kalbaugh ............ 89 Boyce v. Lake...... .... cone 279 Boyee VR, Cove se cencees ves 175 Boyd v. Jones........ 20.0 458 Boykin v. Boykin.............. 125 Boyle v. State..... ........... 895 Boynton v. Morrill............. 539 Boynton v. Pierce..... ....... 555 Bracken v. Dillon... ....... 48, 389 Bradford v. Bradford.......... 210 Bradlee v. Glass Co............ 524 Bradley v. Hunt .............. 595 Bradley v. Merrick... ........ 34 Bradley v. Saddler ........ ... 495 Bradshaw v. Hedge............ 229 Bradstreet v. Rich............. 525 Brady v. Ervin.... 20... ..... 612 Brady v. Parker........... 2. 41 Bragg v. Massie... ............. 41 Brainerd v. Arnold........ .. 199 Bramon v. Hursell............. 433 Branch v. Palmer.... ..... 515, 517 Brand v. Abbott......... 0.0... ! Brandon v. Leddy.... Brands v. De Witt............. Brannon v. Hursell . oe Bransford v. Crawford........ 528 Brant v. Coal Co...... .. 0... 457 TABLE OF CASES CITED. PAGE Bratt v. Bratt ........ eee eee 208 Brayley v. Jones .......-...... 418 Breckinridge v. McAfee........ 427 Breinig v. Meitzler .......... 80, 390 Bremmerman v. Jeunings...... 446 Brenneker v. Warren.......... 424 Breslin v. Brown.............. 516 Bressler v. People ............. 148 Brewster v. Davis.........- 224, 519 Brice v. Miller.... .......... .-. 50 Brickley v. Keenan......... -«. 490 Bridge v. Wellington .......... 452 Bridges v. Thomas ............ 224 Bridges v. Winters......... 376, 607 Bridgewater v. Roxbury.... 38, Bridgewater v. West Bridge- water. Bridwell v. Brown Briel v. Natchez..............- Brigg v. Hilton............ 2... Briggs v. Dorr ........eeeeeeee Briggs v. Glenn ........ a eseers 607 Brigham v. Carlisle........--.. 483 Bright v. Adams ....... ..... 585 Bright v. Coffman ............. 440 Bright v. Young .......... sees 22 Brightman v. Hicks ........ .. 479 Brinkley v. State...........-.. 380: Brison v. Brison.............-. 214 Britton v. Dierker ......... 373, 381 Britton v. Lorenz..... .... 120, 123 Britton v. State.. ... 1... 0.2.6. 456 Broadhead v. Wiltse. -. 895 Broad St. Hotel v. Weaver. ... 273. Brobston v. Cahill............. 404 Brock v. Milligan ............. 111 Brockenborough v. Melton. ..82, 83. Brooks v. Brooks.............. 445. Brooks v. Daniels ............. 398. Brooks v. Goss.....sseseeeeees 435. Brooks v. Isbell. .............- 453 Broughton v. Winn...... ..... 125 Brown, Hv parte........... 6 Brown v. Autrey Brown v. Bank..............-. Brown v. Barnes Brown v. Bowen Brown v. Brown Brown v. Cockerell Brown v. Com............ : Brown v. Driggers...........+- 515 Brownv: Gills sscces sesesesas 92 Brown v. Guice.............6. 200 Brown v. Hicks........ ....-. 406 Brown v. Jewell.......... 22. 443 Brown v. Johnson,...........- 250 Brown v. Kimball.... .... .-. 407 Brown v. Lesson........... 06 272 Brown v. McGraw........ -..- 442 Brown v. Parkinson.... ...... 459 TABLE OF CASES CITED. PAGE Brown v. Reed............ 378, 380 Brown v. Shock............. . 179 Brown v. Spofford......... ... 511 Brown y, State ..... ..... 247, 479 Brown v. Swineford........... 849 Brown v. Thompson..........+ 516 Brown v. Volkening... .. acoee 178 Brown v. Wheeler. ...... seceee 406 Brown v. Whipple..... . acawrerts 480 Brown v. Wiley... ..-+eeees. 555 Browning v. Ins. Co........... 421 Brucker v, State....... ....65. 268 Brunson v. Brooks. Brush v. Brush...... we 3 Bryant v. Crosby.............. Bryant v. Ingraham............ 168 Bryce v. Butler.............. . 459 Bryce v. Ins. Co......... . 199, 520 Buall v. State. ............ 06. 269 Buch v. Stowell.... .......-.. 433 Buchanan v. Collins....... 425, 455 Buchanan v. Curtis............ 90 Buck v. Appleton .... ........ 148 Buck v. Com....... ..... 065. 112 Buck v. Grines.......... 0... 251 Bucknam v. Barnum........... 435 Buffum v. Hutchingon......... 611 Buford v. Tucker.......... 259, 269 Buie v. Carver ...... 36 Building Soc. v. Smit Bullis v. Noble ..... ......00- 328 Bunbury v. Brett ............. 442 Bundy v. Hart............0008. 270 Bunse v. Agee............ eee 210 Burbank v. Ins. Co.... ....... 428 Burdick v. Hunt .... ........ 404 Burge v. Hamilton ............ 592 Burghart v, Turner............ 410 Burgoon v. Bixler............. 430 Burhans v. Johnson............ 544 Burhans v. Sandford........... Burke v. Wolfe .............6. Burkhalter v. Ector..... Burkholder v. Casad... Burney v. Ball..............-. Burnham v. R. Co..... Burns v. Campbell......... ... Burns v. State. .............06 125 Burr v. Byers... 6. ....2 eee ee 887 Burrows v. Alter.......-...... 606 Burrows v. Klunk............. 378 Burton v. R. Co. ...,......4.. 278 Busick v. Van Ness............ 509 Butler v. Price.... ........... 446 Buttrick v. Allen....... ...... 462 Byass v. Sullivan.............. 131 Byers v. Danley, .............- 559 Byers v. Fowler............+.. 54 Byington v. Allen. ........... 399 Bynum v. Pump Co........... 41 Xi Cc PAGE Cable v. Ellis .... .....e00..0. 207 Cadwallader v. West........... 6382 Cady v. Kyle... .......... 428, 433 Cagger v. Lansing......... 475, 476 Caldwell v. Evans............. 40 Caldwell v. Garner..... ... .. 426 Caldwell v. Henry......... 424, 427 Caldwell v. Neely............. 611 Caldwell v. Sigourney ......... 433 Caleb v. State............... . 147 Calkins v. Carriage Co......... 317 Call v. Dunning............... 383 Callanan v. Shaw.............. 197 Cameron v. Lewis... Al Camp v. Brown............ .. 279 Campau v. Dubois. ........... 412 Campnu v. Lafferty........ ... 617 Campbell v. Coon............. 421 Campbell v Hastings... ... 54, 55 428, 435 Campbell v. Johnson .......... 554 Campbell v. Quackenbush ..... 446 Campbell v. Robbins .......... 544 Campbell v. State .......... 30, 156 Canaday v. Krum ............ 168 Canal Co. v. Ray.............. 554 Canfield v. Monger...... 452 Canfield v. R. Co...... . 282 Cannon v. Brame ..... -. 319 Carey v. Reeves ........ eee. . 261 Carhart v. Wynn.............. 551 Carlton v. Wine Co............ 209 Carmichael v. Greer..........- 295 )| Carnell v. Duvall ............. 402 Carnes v. Crandall ........... 22 Carnes v. Randall ............. 23 Carothers v. Alexander ........ 317 Carpenter v. Canal Co......... 170 Carpenter v. Corinth ........ 156 Carpenter v. Miller............ 583 Carpenter v. Tr. Co.........6.. 156 Carr v. College....-......-.0.. Carr v. Sellers ............ s Carrol v. Gillion. Carroll v. R. Co.. ......... Carroll v. State. ........-...006 Carter v. Coal Co.............. 219 Carter v. Fishing Co........... 23 Carter Vo Tita. scenes baat od48 170 Carter v. Marshall........... .. 884 Carter v. Portland............. 90 Carter v. State................ 395 Caruthers v. Corbin........... 586 Carver v. Jackson ......... 610, 611 Cary v. State.......05 cee ee eee 268 Case We Reber xc cverayecvevarevrnarensine 561 Cason v. Cheely Cass v. Bellows Cassels v. Usry Cassitt v. Hobbs xii TABLE OF CASES CITED. PAGE PAGE Cates v. Kellogg ...........5+- 412 | Clark v. Crego .........eeeees 418 Catlin v. Ware.......ceeeeeeee 409 | Clark v. Jones ...............- 509 Caujolle v. Ferrie ............. 27) Clark v. Pendleton ........... 495 Caulkins v. Hellman........... 491 | Clark v. Providence ........... 90 Causey Vv. Cooper .......eeeeee 251 | Clark v. Sawyer Cease v. Cockell. ............. 209 | Clark v. Smith ............ Central Assn. v. Ins. Co....... 327 | Clark v. Trindle..............- Chace v. Vasquez ..........6. 529 | Olark v. Troy .........005 se Chadsey v. Green ............. 431 | Clark v. Wood........ . Chadwick v. Fonner........... 457 | Clarke v. Adams . Chaffe v. Benoit............... 483 | Clarke v. Clarke Chaffee v. Convention ......... 577 | Clarke v. Waite. . Chamberlain v. Davis.......... 446 | Clay v. Robinson Chamberlain v. Dow........... 433 | Clayton v. Tucker 40 Chamberlain v. Wilson ........ 131 | Clealand v. Huey........... 36 Chambers v. Faulkner ..... 327, 525| Clement v. Hyde..... iets ideas 590 Chambers v. Wilson........... 523 | Clements v. Lundrum.......... 209 Champion v. Joslyn........... 440 | Clements v. Moore.......- 302, 303 Chance v. R. Co........ 26.0. 404 | Clements v. Pearce ...... ..... 523 Chapin v. Dike................ 516 | Clever v. Hilberry............. 181 Chapman v. Blakeman ........ 31 | Cleverly v. Cleverly........... 523 Chapman v. Chapman ...... 23, 27|Clews v. Kehr............. 19, 442 Chapman v. Herrold.......... 398 | Clifford v. Baessman......... 512 Chapman v. Rose ............. 440 | Clifton v. Murray Chapman v. Shepard .......... 312 | Cline v. Catron Chapman v. Swan............. 89 | Clingan v. Mitcheltree...... Chapman v. Twitchell ......... 431 | Clinton v. Estes ............... Chase v. Kittredge ...-........ 577 | Clinton v. State ........0....4. Chase v. R. Co........ ee eee ee 394 | Cliquot’s Champagne .......... Chastain v» Robinson.......... 19| Cloud v. Dupree .............. Chatfield v. Simonson ......... 445 | Cloud v. Hartridge ............ Chatham v. Bradford.......... 631 | Clows v. Elliott ............... Cheatham v. Hatcher.......... 588 | Clunie v. Lumber Co.......... Cheever v. Brown............. 388 | Coal Co. v. Dewart............ Chenango Bridge Co. v. Paige.. 37] Coal Co. v. Schultz............ Cherry v. Baker .............. 268 | Coale v. R. Co ...... see secon Cheshire Turnpike v. Stevens... 91 | Coasting Co. v. Tolson. . Chess v. Chess .............-.. 629 | Cobb v. Black................. Chester v. Dickerson....... 428, 483| Cobb v. Knapp................ Chester Co. v. Lucas .......... 516 | Coble v. Coble ................ Childers v. Adams. ........... 515 | Coburn v. Ames............... Childs v. Dobbins............. 518 | Coburn v. Odell ............... Childs v. State ................ 30| Coburn v. Webb .............. Chisholm v. Newton......... . 482] Cochran v. Butterfield ......... Choice v. State ........... 146, 147| Cochran v. Davis.............. Chouteau v. Allen...... ...... 606 | Cochran v. Loring............. Christian v. Ransome...... ... 479 | Cocke v. Bailey ............... Christopher v. Christopher..... 208 | Cocks v. Nash......-.......... Christy v. Alford........ ..... 617 | Coit v. Starkweather........... Christy v. Barnhart............ 476 | Coldcleugh v. Johnson......... Christy v. Kavanagh... ....... 224 | Cole v. Cole...............008. Christy v. Sullivan ............ 549 | Cole v. Conolly ............. Church v. Drummond ......... 1%8 | Cole v. Dial. co. ..cceeseecesene Church v. Gilman............. 629 | Cole v. Singerly ............... Church v. Howard ......... 433, 4385] Coleman v. Applegarth ........ 610 Churchill v. Corker............ 614] Coleman v. Bank.............. 523 Clanton v. Barnes ...... ewe ek 278 | Coles v. Saulsby...........0.. 208 Clapp v. Fullerton......... ... 146 | Collings v. Hope .............. 528 Clapp V. RICO ce caecorenceces 556 | Collins v. Westbury........ ... 515 Clardy v. Richardson ...... see» 406 | Colpys v. Colpys..........0.0- 202 TABLE OF CasES CITED. PAGE ‘Colquitt v. State...........-.-. 454 Colquitt v. Thomas........... 426 Golt Vi Cone: a xsca cassette 511 Com, v. Allen............. 405, 406 Com. v. Brown......... 06 sees 395 Gomi, ¥: Call... va cacunae ase 439 ‘Com. v. Chabbock w... 470 Conti, V. COG. 35. cece ss 392, 403 Com, ‘Vv. ‘Colé: .2icccasacscecnss 89 Com. v. Curran .... ......-6e- 301 Com, v. Goldstein. .. ........ 221 Com. v. Hanlon..............- 470 Com. v: Holt... cc.secesetess 247 Com. v. Howe.....-..... 470, 471 Com, v. Jeffries............. . 147 Com. v. Kenney... ........... 489 Com. v. Kimball.... 9 ......- 131 Com. v. Kreager..........- 538 Com. V¥.LeO: css. ecd ssseued heeds 301 Com. v. Matthews 398 Com, iV, May cess s03 ceecaeess ses 259 Com. v. Mosler...............- 470 Com. v. Nefus.............-- 405 Com, Vs Piper crs tc ass seen ais 146 Com. v. Pitzinger............. 420 Com. v. Pope ...........00000e 244 Com. v. Proprietors... ....... 452 Com. v. Richards.......... 420, 431 Com, ¥: SC0ttisc sswsw cas ewes ce 177 Com. v. Stump. ....... ...... 248 Com. v. Sturtivant............. Com. v. Vosburg .....-.2+.655 Com. v.Williams .... Com. v. Woelper........... ‘Comrs. v. Bolles. ... Comstock v. Smith Corinth v. Lincoln. Corkins v. Collings sss ss eevee Cornett v. Cornett....... Corning v. Factory Corse v. Peck. Corser v.. Pattloseciasssynsenee ss Corwith v. Culver............. Cory v. Cory Cory V. SileOX cess caseaeen oe Cosgrove v. R. Co.... ..... .. Costello v. Crowell Cothran Vi Le6 ej: 0m teens Cotton v. Vanderrolgen........ Coulter v. Express Co.......... Courtenay v. Fuller Covington v. Ingraham Cowdrey v. Vandenburgh Cowell v. Springs Co 4% Coweta Co. v. Rogers.......... Cowles v. Garrett .. . Cox V.. Bank eee doe ceansnree Cox v. Freedley. .... ..0. ..- Cox v. Jones Cox v. Pruitt Cox '¥. States sccccascccaa os Coyle v. Cleary... ........ Coyle v. Davis .............06 Coyle v. R. Co 2. ...eee ee. Craft v. McConoughy — Crafts v. Dexter...........05- Craig v. Lewis Craig v. Miller Crain v. Wright Crake v. Crake Crane, Hx parte Conable v. Keaney Cravens v. Duncan...... Confer v. McNeal......... Crawford v. Brady .... ...... Connehan v. Ford . Crawford v. Jones........+-..- Connihan v. Thompson........ 440 | Crawford v. Osmun........... Connolly v. Riley.............. 270 | Crawford v. Wolf... ........- Conover v. Wardell .......... 519] Creamer v. Shannon........... Consolidated Co. v. Cashow.... 146] Crews v. Pendleton............ Cook v. Barr.. 443, 445, 400 | Crichton v. Smith ............. Cook v. Darling PARSER RES OAERTS 82| Crippen v. Morse .......... Cook v. Harris. ..........0.... 89 | Crist v. R. Co... .........000-. ‘Cook v. Shearman... ... ... 520 Cromwell v. County of Sac..... 238 Cook v. Wakefield............. 424 | Cropsey v. McKinney 6 Cook v. Walker ‘ Crose v. Rutledge...... .. Cook v. Weaver. Crosley v. Mason. ............ Cooke v. Moore . Cross v. Langley ......... Coon v. Gurley Cross v. O’Donnell ...........- Coop v. Handy.... .... Cross v. Richardson ........... Cooper, In re .. 1. wee ee eee Croughton v. Blake ........... Cooper v. Ins. Co ............. 199 | Crowe v. Peters .........-..04- Copeland v. Copeland.......... 457 | Cuddy v. Brown..... .....-.. Corbett v. Underwood .. ...... 529 | Cuddy v. Ice Co.............. 503 Corbin v. Sistrunk. .......... 632 | Culbedge v. Napier............ 270 Corbleys v. Ripley..... ....... 421} Culbreath v. Culbreath......... 521 Corcoran v. Doll.........-.... 376 | Cummings v. Gill............. 475 x1V TABLE OF CASES CITED. PAGE Cunliff v. Sefton ......... .... 383 | Deering v. Chapman..........- Cunningham v. Bank.......... 403 | De Graw v. Taylor....s..+ «-- Cunningham v. Brumback..... 617 | Delafield v. Hand ... Cunningham yv. R. Co ..... 82, 83) Delafield v. Parish ...... . ... Curran v. Car Co....... 0... 187] Delaney v. Anderson ....... . 520 Currier v. R. Co .............. 207 | De Lavallette v. Wendt.. ... 541 Curtiss v. Martin.............. 442 | De La Vega v. Butler.......... 617 Cushwa v. Cushwa .. ... ... 607 | Delaware Co. v. Starrs......... 146: Custar v. Gas Co.........68 424, 426| Delong v. Delong............. 406 Cutler v. Smith ..... 2.2.0... 554 | Demerritt v. Randall ......... 405 Cutler Vi. SUp 18s: ccacse00 exes 610 | Demington v. Douglass........ 612 Cutler v. Wright ............. 273 | Dempsey v. Kipp.............. 512 Cutter v. Carothers............ 268 | Denham v. Holeman.........- 612 Cutter v. Cochrane... .... ... 480 | Denmead v. Glass ............ 486 Cuyler v. McCartney. . 421, 435, 458] Dennie v. Williams ...... . .. 438 Dennis v. Weekes ............. 563 D. Denny v. Willard ........ .... 279 Dailey v. Coons .............-- 412 | Derby v. Salem .............,. 400 Dale v. Gear .... ...... veetest 556 | Derby v. Thrall............ 879, 608 Dalé vi Re CO. wes eens esse eis 173 | Derrett v. Alexander .......... 224 Dalton v. Bank.... .........6. 618 | Deupree v. Deupree........... 588 Dana v. Conant ............6-- 223 | Dewees v. Bluntzer............ 378 Dana v. Hancock. ............ 480 | Dewey v. Goodenough......... 446. Dane v. Mallory .............. 196 | Dewey v. Hotchkiss ........... Daniel v. Robinson..... ...... 509 | Dewey v. Moyer ... .......... Daniel v. State ..............6. 471 | De Witt v. Prescott... ........ Daniels v. McGinnis .......... 421| De Wolf v. Strader............ Danlin v. Daeglin............. Dicken v. Johnson ............ Dare V. State: s civ. ssecccassaas Dickenson v. Barber Darrett v. Donnolly 2 Dickenson v. Breeden Darwin v. Rippey ............- Dickerson v. Brown Davenport v. Harris Dickerson v. Com’rs........... Davenport v. Sleight........... 628 | Dickerson v. Seelye... ........ Davey v. Big Rapids..... ..... 331 | Dickey v. Malechi ............ Davey v. Jones.............64. 550 | Dickson v. Desire....... ...... David v. R. Co... ..... ee eee 396 | Dickson v. Frisbie... ......... Davidson v. Cooper. ......... 382 | Dickson v. Harris........... .» 209 Davidson v. Nicholson......... 277 | Diels v. Hubbard.............. 614 Davis v. Bowman Diez, Matter of............. ... 278 Davis v. Bromar .............. Dilleber v. Ins. Co. ........... 149 Davis v. Davis..............6. Dillett v. Kemble ............. 440 Davis v. England...... ....... Dillingham v. Roberts . . NF Davis v. Eppler Dilly v. Warren. ............. 421 Davis v. Glenn................ Dimick v. Downes ............ 29 Davis v. Higgins.............. Ditch v. Vollhardt ............ 541 Davis v. Judge .....e. sc esses Dixon v. Edwards ........... 551 Davis v. Keene...........,06 Dixon v. Ladek. .......... .. 821 Davis v. Luster .. ............ Dodge v. Bache ........... 2... 423 Davis v. McFarlane .... ...... 482 | Dodge v. Coffin ............... 93 Davis v. Moody ..........-.00 511 | Dodge v. Haskell........... .. 170 Davis v. Sanford .............. 887 | Dodge v. Savings Co........... 458 Davis v. State ............. Dodge v. Walley.. ........... 634 Day v. Allender 9} Dodson v. Sears............. . 889 Day v. Holmes....... .....05. Doe v. Pembroke. ........ 23, 27 Day v. Wilder............. Doe v. Phelps.............000 23 Dazey v. Mills ............... Doe v. Robinson ........ . .. 422 Dean v. Brown.............0.- Doe v. Roe............ 184, 408, 617 Dean v. Ins. Co Dole v. Woolredge.... 177, 419, 459 Dearmond v. Dearmond ...... 629 | Donahue v. McNulty htianhnigaes 634 De Armond v. Neasmith ...397, 400! Donahue v. People .. ........ 30 TABLE OF CASES CITED. PAGE Donaldson v. R. Co.........-- 396 Dooley v. Cheshire....... sees 456 Doon v. Donaher ... ........+ 228 Dorsey v. Warfield ............ 146 Doswell v. De La Lanzo....... 617 Dougherty v. R. Co Dovaston v. Payne....... Dow v. Mining Co... ......... Downer v. Smith... ...... Downing v. Plate........... 79, 82 Downs v. Porter. ... ...+-66-- 613 Downs v. Quarles ..........+6- 515 Downs v. R. Co. ...... eee eee 453 Draggoo v. Graham.......-...- 249 Drake v. Glover .......-.eeeee 827 Drake v. Starks .......e..ee5. 210 Draper v. Hatfield ............ 412 Draper v. Shoot............--- 612 Drum v. Drum....... .....-.. 371 Drummond v. Prestman ....... 449 Drumright v. State...... ..... 439 Dryden v. Hanway........ vee 559 Dubois v. Baker.... ........- 405 Duchess of Kingston’s Case, 312, 322 325, 335, 338, 611 Dudley v. McCluer........ ..- 176 Dudley v. Sumner....... .... 407 Dudley v. Vose.. ......... 209, 511 Duer v. Thweatt .. ........4. 5388 Duff v. Wynkoop........+6....- 409 Duffie v. Phillips.............. 243 Dugan v, Nichols...........6+. 491 Duke v. Harper....... «25... . 515 Duke v. Nay. Co..........055. Duker v. Franz. ............0.4. Dunagan v. Dunagan.... Dunbar v. Parks Duncan v. Duncan Duncan v. Pope Dunkart v. Rinehart Dunlap v. Glidden..... ... Dunlap v. Hooper............. Dunning v. Roberts Durgin v. Dyer. ..... eee ee eee Durgin v. Ireland Durgin v. Somers...... 220-06 Durham v. Alden........ ..... Durkee v. R. Co...... seeee Dustin v. Rose Duval v. Davey........6eee ee ee Dwiggins v. Cook...... a Dwight v. Badgley Dwinel v. Pottle Dyar v. Walton . Dyer v. Smith......... ee eee ee rr ee oe a Eadie v. Slimmon....... ... is Fakle v. Clarke.........- 2+... Ealim v. Carson..... .sesesee- XV PAGE Earl v. Tupper ........... 34, 45: Earley v. Kuwer ........-.000- 97 Early v. Rolfe. ........ ...0.. 327 East, etc., v. Taylor. ......... 426 Eastis v. Montgomery 288 Eastman v. Amoskeag Eaton v. Farmer... .......... 181 Eaton v. Hasty...... ... 540: Eaton v. Whitaker ........ .- 476 Eberhart v. State. ............ 472. Eckert v. Triplett ............ 435 Ector v. Welsh.......... ages ALT Eddy v. St. Mars........ ..... 618 Edenfield v. Canaday......... 515 Edington v. Ins. Co........149, 442 Edwards v. Tracy ......... «+ 432 Hgan v. State. ... .. ce see eee 272. Ege v. Medlar..............00 614 Eggers v. State....... ..eeee ee 147 Eichelberger v. Sippord........ 409 Eighmie v. Taylor...... ...... Elam v. State............--..-. 1384 Elberfeldt v. Waite............ 48 Elder v. Hood. .......... ...- 208: Eldridge v. Walker...........- 328 Elkins v. Parkhurst............ 606 Eller v. Evans..............- 331 Ellicott v. Pearl......... 81, 32, 615 Elliott v. Dycke............... 38 Elliott v. Dycker.... ......... 406 Elliott v. Elliott............... 550 Elliott v. Hayden.............. 445 Ellis v. Buzzell...... ... 2... 78 Ellis v. Crawford..... .....+.. 525 Ellis v. Eastman. ........ 0... Ellis v. Lindley Ellis v. Reddin Ely v. Early ....... .... Bly We Bly cae as samen caieas Emerson v. Providence Co..... 402 Emery v. Fowler ............. 36 Emery v. Webster............- 516 Ennis v. Smith. ........... 94, 462 Enos v. Tuttle..............0.. 423 Epps v. Dean..........0...-5 582. Epps v. State... .... 2... 6... 895 Eschbach v. Hurtt............. 176 Eskridge v. State.... ......... 470 Eslow v. Mitchell Esmay v. Gorton Estes v. Long ...... oe Evans v. Arnold....... Evans v. Bolling Evans v. Bradshaw............ 95. Evans v. Dickey............-. 156 Evans v. Evans ....... ... 417, 447 Evans v. Hurt. ..............- 82 Evans v. Smith................ 572 Evans v. Williamson........ .. 539 Evening News Assn. v. Tryon.. 367 Xvi PAGE Everitt v. Everitt.............. 225 Everly v. Bradford... ...,.... 41 Ex. Co. v. Duffey ..... ....... 423 Eystra v. Capelle ... ........- 208 F. Fail v. McArthur Fail v. Presley .... ..... Fairley v. Smith Fankboner v. Fankboner....... 511 Fareira v. Gabell.............. 279 Farina v. Home................ 492 Farmer vy. Batts......... 2... 200 Farmers v. Pickens............ 829 Farnum v. Burnett ....... ... 209 Farrar v. Bates ....,.......2--5 268 Farrar v. Farrar. ............- 625 Farrow v. Bullock............. 615 Fatheree v. Lawrence.......... 577 Fawcett v. Bigley.. ..... ..... 427 Faxon v. Hollis é Hay Viv Grayiccsvaswas cin wtaeay Fay v. Harlan...... ... Fayden v. Harrington ..... .. 428 Feibleman v. State........-.... 273 Feig v. Meyers.. ............. 371 Fell v. RuvCo occ caen eee ee 385 Feller v. Green... ............ 518 Fellows v. Menasha........ o. . 264 Felton v. Smith ............... Fenton v. State ......... ..... Ferguson v. Davis..... ....... Ferguson v. Etter.............. Ferguson v. Rafferty...-....... Fernandey v. Glynn........... Ferry v. Taylor......... Fidelity Co ’s Appeal Field v. Boynton....... Mieldivi Re COs .eceedgiee aoreceaad Field v. Thompson............ Fife: vi COMB ai ciek seuss g aves s Finney v. Smith.... .......... Fisher v. Beard.............-.- Fisher v. Mayer......... ...4. Fisher v. Tone .............--- Fisher v. Wilson ............-. Wisk v. Re CO cececsasceseaaes 95 Fitzpatrick v. Harris . ........ 418 Flagg v. Mason. ... ...... 186, 457 Flanders v. Maynard... .... 40, 421 Flinn v. Brown. ...........4-- 607 Flint v. Johnson.........0..02. 814 Flowers v. Helm.............. 433 Floyd v. Hamilton..... ....... 429 Flynn v. Ins. Co........... weve 19 Folger v. Ins. Co..... 00 ....., 83 Follansbee v. Walker...... 148, 539 Folwell v. Beaver .... ........ 547 Fonda v. Burton ............. 255 Foot v. Northampton Co....... 482 TABLE OF CASES CITED. PAGE Foote v. Cobb.......es.05- 406, 407 Forbes v. Balenseifer .......... 90 Forbes v. Bank...........000.- 550 Force v Hibbard.... ......... 200 Ford v. Belmont. .......... .. 477 Ford v. Finney..............-. A474 Bordy¥. Be | COine tsinwanweectes-es 388 Ford v. Tison..... Seesaw 2 476 Ford v. Wilson........... ..+- 612 Forman, Matter of....... 581 Forrester v. State.............. 19 Forsythe v. Hardin...... ..... 406 Forsythe v. Kimball ........... 545 Fortin v. Engine .............. 393 Forward v. Harris............. 2.3 Foscue v. Lyon. .....,..eeeeeee 259 Foster v. Brooks...........- sit On Foster v. Hall. .......... «2... 121 Foster v. Mansfield ........... 629 Foster’s Appeal............5.- 225 Fougue v. Burgess...........-. 19 Fowler v. Lewis... 395 POX Vi COM verte dss vets ails 268 Pix WeDaVIS: ios ise loses 886 606 Fox v. Hilliard....--.......... 277 Fox v. McComb............-.- 255 Fox v. Sugar Co... ....60 scenes 486 Fox v. Whitney .........0eeee 148 Foxcroft v. Crooker ..........- 399 Foye v. Leighton... . ........ 82 ROye; PatChina casa veawtewsd as 404 Fralick v. Presley ............. 457 Francis v. Edwards. .. ... 55, 427 Francis v. Mill Corp........... 610 Franey v. Miller ..... 00... Frank v. Morrison Franke v. Riggs........ ...... Franklin v. Baker Franklin v. Tiernan ........... 398 Fraser v. Jennison. ........... 149 Frazier v. McCloskey ......6 172 Frear v. Evertson ............- 421 Breck ¥.Re COscssess bans eos 277 Frederick’s Appeal ........ sees O73 Freeman v. Bass... . ......000- Freeman v. Freeman Freeman v. Robinson... Sess French v. Smith............6.. French v. Wade.............55 Friends v. Friends...........+. Frink v. Darst . 2... ...cceeeeee 626 Frink v. Thomas ............. 823 Frosh v. Holmes..... ...... 2. 93 Frost v. Blanchard. ....... 209, 511 Bruin Re Coen as ase. cexee ee 536 Fry v. Bennett ................ 279 Punk v. Ely: ccs ccadaus anis 42, 386 Funk v. Gallivan.... ....,... 606 Funk v. Voneida.............. 626 TABLE OF CASES CITED. PAGE Funston v. R. Co...........005 451 Furlong v. Garrett............. 614 Furnace Co. v. R. Co..... .... 500 Furniss v. Hone............... 530 Furst v. R. Co ......eceeeaeeee 424 G. Gage v. Gage... 0... ees eee ae 573 Gage v. Schroder.............. 224 Gaines v. Gaines. ........ ... 456 Gaines v. New Orleans......... 23 Gaines v. Relf...........0. 0005 470 Gaither v. Gaither............. 528 Galbreath v. Cole.. ........... 424 Galceran v. Noble.. ..184, 422, 555 Gallagher v. R. Co ............ 396 Gallagher v. Mars... .......... 482 Gallagher v. Williamson ..... 442 Galland v. Jackman. ......... 630 Galpin v. Page.... ........... 538 Galveston v. Barbun. ......... 41 Gamble v. Knott Ganahl v. Shore........... Gandolfo v. Appleton.......... Ganley v. Looney.............. Garber v. State ... ........... Gardiner v. Gardiner ...... ... Gardner v. Collector........... Garey v. Nicholson ........ ... Garland v. Lane........ Garner v. Myrick.............. Garrahy v. Green......... .... Garrard v. Hoddan........ ... Garrigues v. Harris........... Gartner v. Boller .............. Garver v. Jackson....... Gas Co. v. St. Louis. . Gas Co. v. Wheelock .... Gashwiler v. Willis............ Gately v. Irwine............... 537 Gates v. People..............4- 471 Gay v. Bates............00- 0s 412 Gaylor’s Appeal .........04.4+ 145 Gebhart v. Burkett ............ 446 Gehrke v. State ....... ..e..0 395 Gentleman v. Soule.... ....... 88 George v. Bischoff............. 610 German School v. Dubuque .... 892 Gerrish v. Nason ............- Gerrish v. Sweetser Getzlaff v. Seliger. ... . Gibbs v. Ins, Co. ..........06. 509 Gibney v. Marchay Gibson v. State.........0...005 Giddens v. Crenshaw .......... 440 Gidney v. Moore ............4- 417 Gilbert v. Colt .........4. vee. 516 Gilbert v. New Haven......... 398 Gildersleeve v. Caraway .35, 420, 431 Gill v. Bicknell ............... 491 Cc xvii PAGE Gill v. Hewitt. ....... hecera 491 Gill v. Strozier ........... sees ADL Gillaspie v. Kelly... .......... 380 Gillham v. Mustin............. 573 Gilliam v. Chancellor Gillooly v. State... ...-........ Gilman v. Gilman Girardey v. Bessman........... 80 Gist v. Gans. 2.0... cc cece eee 371 Gladney v. Barton............. 614 Glass v. Hulbert....-.......... 476 Glasscock v. R. Co............- 170 Gleen v. Gleen ................ 400: Glenn v. Clare .... ........... 30 Glenn v. Salter............... 440 Glidden v. Unity .............. 611 Glover v. Robbins............. 373 Godbold v. Blair ............. 387 Goddard v. Hill.............. 545 Godfrey v. Codman............ 888 Godwin v. Crowell .. eeeee 515 Goetchins v. Hodges.... ...... 517 Goetz v. Bank..... .....0.0055 426 Goff v. Roberts................ 200 Goltra v. Sanasack...........6- 210 Gonzales v. Chartier........... 483 Gooch v. Bryant..........00008 424 Good v. Martin............... 551 Goodin v. Armstrong .......... 456 Goodlett v. Kelly.......... ... 34 Goodman v. Henderson ........ 200 Goodrich v. Weston ....... ... 248 Goodwin v. Jack............ 86, 402 Goodyear v. Vosburgh..... 404, 405 Goolsby v. Bush..... ...... «+ 496 Gordon v. Com.... ... 148 Gordon v. Tweedy............. 396 Gorman’s case...........- sees 588 Gossard v. Ferguson ........... 589 Gott v. Pulsifer................ 367 Gould v. Kelley. —........ 406 Gould v. Lee... .........0.005 254 Gould v. Mansfield ............ 572 Goulding v Davidson ......... 297 Gowen v. Klous. ... .......06 489 Grace v. Adams............... 281 Grace v. McArthur .. ........ 359 Gradwohl v. Harris............ 456 Grady v. People ............... 317 Graff v. Castleman .. ......... 622 Graham v. Henderson... ..... 268 Graham v. People.. ....... 123, 147 Granby v. Amherst............ 95 Grand Island Banking Co. v. Shoemaker....... ...... ... 187 Granniss v. Irvin .............. 383 Grant v. Dallibar.......... ... 96 Grantside v. Ins. Co........... 149 Grattan v. Ins. Co............. 149 Gray v. Hodge.... ...... ... B21 Xviii PAGE Gray v. Jackson.........eee05 293 Gray vi Statescswcnvcacecereed 445 Gray v. St. John .............. 30 Gray v.. Yates asceccscecsacoes Green v. Clark . Green v. Gilbert... ..... Green v. Irving...... Green v. Kellum Greenwood v. Spiller .......... 23 Gregory v. King........ ...... 516 Gregory v. Walker ............ 156 Gregory v. Wendell............ 515 Grensel v. Hubbard...........- 555 Gribble v. Press Co ........... 172 Gridley v. Hopkins...... Sara 88 Grier’s Appeal.... . 3 470 Griffin v. Cleghorn............. 40 Griffin v. R. Co. ...... aise eyes 424 Griffin v. Sketoe....-.......--- 540 Griffith v. Abbott.............. 474 Griffith v. Douglass...... ave seins 88 Grim v. Bonnell ........... 423, 427 Grimes v. Ragland............. 616 Grimshaw v. Paul .......... 55, 424 Grinstead v. Foute............. 92 Groesbeck v. pene ad, Owes AN 898 Groll v. Tower ..............-- 149 Grover v. Grover ......000.000- 250 Groves v. Buck....... 2.2.2.5. Grubey v. Bank Grymes v. Sanders ........... 554 Guillaume v. Hamburgh Co.... 289 Gurney v. Howe ............45 399 Guthrie v. Price ............... 573 Guy v. Manual ................ 443 Guy v. McLean.......... 00... 606 H. Hagan v. Ins. Co.......... ... Haggard v. Haggerd Hahn v. Bank......... Haile v. eee att. eens j Haines v. Brownlee..... aeieseroats Haines v. McGlone......... ... Hair v. Little.....-........... Haish v. Payson... ....-...... Haisten v. R. Co. ..... ....... Haldane v. Eckford. - Hale v. Handy. ... ....... 201, 209 Haley v. Evans Hall v. Barnes..........eeeeee- Hall v. Bragg Hall v. Chaffee Hall v. Davis............ et Flav Hall oe a caconesetorsvarsieteieers Hall v. Howd TABLE OF CASES CITED. PAGE Hall v. Irwin................ « 17 Hall v. Livingston............. 479 Hall v. Naylor.......... ...... 179 Hall v. Richardson . .......... 487 Hall v. Stanley... ........064. 168 Hall v. State.......... 45, 454 Halley v. Webster ............ 574 Halliday v. Hart.... ..-....... 545 Halsey v. Blood. ............. 257 Hamblett v. Hamblett.......... 412 Hamburger v. Miller........... 555 Hamilton v. Berry..... frig Reaconagiaing 424 Hamilton v. Boggess........... 613 Hamilton v. Hamilton.......... 606 Hamilton v. Hooper..... ... .. 380 Hamilton v. Nott.............. 147 Hamilton v. Paine.... ........ 417 Hamilton v. People......... %, 121 Hamman v. Mink .... ........ 268 Hammat v. Russ... ........... 443 Hammond v. Varian......... . 408 Hamsher v. Kline ............. 419 Hanberry v. Hanberry......... 571 Hanby v. Tucker.............. 561 Hancock v. Fairfield........... 552 Hand v. Grant..............2.4 388 Haney v. Clark............. .. 146 Hanley v. Gandy............. 404 Hannan v. Hannan ............ 209 Hannay v. Stewart............. 427 Hannibal v. Draper............ 88 Hannum v. Belchertown....... 148 Hannum v. Richardson........ 549 Hanover Co. v. Iron Co........ 422 Hanrick v. Cavanaugh...... 168, 175 Hanson vy. Lawson .... ..,.. .. 178 Hanson v. Vernon........ .... 89 Happy v. Mosher... .......... 424 Harbison v. Hawkins.......... 387 Hardenburgh v. Lakin..... eee 487 Hardesty v. Richardson........ 478 Hardigree v. Mitchum Harding v. Hale. ............. Hargroves v. Freeman Harkreader v. Clayton .. Harnett v. Garvey..... Harper v. Tapley.............. Harrell v. Culpepper....... Harriman v. Church....... Harriman v. Stone............. Harris v. Frink........... .... Harris v. Howard ............. Harris v. Richey.............+. Harris v. State Harris v. Young...........-4.. Harrison v. Boring..... Harrison v. Cachelin . Harrison v. Charlton Harrison v. Harrison........... Harrison v. Hatcher .;... tee eww eee ene TABLE OF Cases CITED. PAGE Harrison v. Henderson..... 418, 455 Hart’s Appeal .... ..........05 219 Hart v. Clark ........ ........ 553 Hart v. Clouser ............... 373 Hart v. Freeman ..... ........ 454 Hart v. Livingston ..... ...... 388 Hart v. Powell ......... 2.00. 45 Hart v. State ... ..........00. 259 Hartman v. Diller... ......... 458 Hartranft’s Appeal.. .......... 148 Hartt v. Rector ............ .- 279 Harttman v. Tegart............ 80 Harvard College v. Gore ....... 95 Harvey v. Anderson Harvey v. Butchers.... .... .. Harvey v. Millian.............. Harvey v. State ............... 146 Harvey v. Stevens...........-. 491 Harvey v. Sullens....... .. 562, 587 Harvey v. Ward..... ... ..... 319 Harvey v. West .........-....- 331 Harvy v. Chouteau... ........ 578 Harwood v. Wylie............. Hassam v. Barrett ............. Hastings v. Lovejoy Hastings v. Rider............. Hatch v. Bullock.............. Hatch v. Elkins....... ........ Hatch v. Hatch........ : Hatch v. Kimball ... i Hatchett v. Conner....... .... x1x PAGE Heard v. McKee............... 454 Heath v. Blake................ 378 Hebbard v. Haughian....... .. 209 Heckerman v. Hummel ........ 90 Hecter v. Glasgow......... . 409 Hedden’s Appeal...... ....... 317 Heflin v. Milton...........,... 483 Hefner v. Palmer.............. 295 Heine v. Com. .. ............ 45 Heineman v. Newman......... 607 Heiske v. Brousard............ Heistner v. Fortner............ Helena v. Turner... . ........ Helt v. Smith................. Hemenway v. Smith Hemmingway v. R. Co......... 51 Henderson v. Bank............ 404 Henderson v. Casiano .... 399 Henderson v. Hackney. 244, 404, 526 Henderson v. McVay 376 Henderson v. @hoaean Henderson v. Touchstone Hendrick v. Com. Hendricks v. Kelly Hendrickson v. People......... Heney v. Sargent Henry v. Smith............ ... Henry v. Willard.............. Her v. Hiller.......... Hermann v. Ins. Co Herrick v. Malin Hatter v. Greenlee .. Herrick v. Swormley ... ..... 404 Hauck v. Craighead ........... 551 | Herring v. Rogers ....222, 385, 409 Hausman v. Nye .........-.... 488 | Herrington v. Bradford ....... 573 Haussman v. Burnham......... 603 | Hershey v. Metzgar............ 493 Haven v. Wendell ............ 20 | Heuser v. Harris .............. 589 Hawk v. Applegate ........... 187 | Hewett v. Chapman.... ....... 148 Hawker v. R. Co.......... 184, 185} Hewhall v. R.Co..... 2. 12... 543 Hawkins v. Baker............. 492 | Hewins v. Cargill........... 2. 376 Hawkins v. Thomas........... 261 | Hickerson v. Mexico. ......... 539 Hawks v. Kennebec............ 268 | Hickox v. Buckingham........ 543 Hawley v. Mason.............. 626 | Hicks v. Cleveland ............ 491 Hawley v. Northampton..... 572 | Hicks v. Skinner..... ........ 516 Hawley v. Whipple........ 198, 369 ie v. Dresser..... Haycock v. Greup . A . 405| Higdon v. Heard ...... Hayden v. Slaughter. 2 ... 881 | Higgins v. Carlton. Hayden v. Stone............... 421 | Higham v. Ridgway Hayden v. Thayer.............. 883 | Hill v. Blackwelder............ Hayes v. Matthews ........... 3879 | Hill v. Hooper................ Haynes v. Haynes............. 588 | Hill v. Manuf. Co......... ... Hays v. Doe ........ esc ee ee eee 617 | Hill v. Miller............ 02... Hays v. Hays. ........... peae 402) EU Ve Ry CO st can dtancnoenneaus Hayward v. Bath.............. 398 | Hill v. Townsend.............. Hazleton v. R. Co...........005 404 | Hill v. Winn.... ............. Hazzard v. Vickery ........... 404 | Wilson v. Forrest.... ......... Head v. Hargrave .... «2.2.00. 183 | Hilton v. McDowell........... Head v. State.... ........ 00. 454 | Himmelmann v. Woolrich Headen v. Womack ........... 457 | Hinchley v. Greany........ Headman v. Rose............05 224 | Hinckley v. Southsea as Heald v. Thing.............. . 147| Hinde v. Vattier............... xx PAGE Hinds v. Harbon.............. 146 Hiner v. People..............- Hines v. Poole ..........-..00% Hinman v. Littell... Hinson v. Walker............. 442 Hipsley v. R. Co... ... : Hissrick v. McPherson Hoagland v. Hoagland......... 560 Hoar v. Goulding.............. 626 Hobson v. Ogden ...... ...... 443 Hodge v. Thompson........... 468 Hodnett v. Pace. ............. 288 Hogan v. Sherman............. 432 Hogans v. Carruth........ .... 36 Hogsett v. Ellis..............-. 454 Hoitt v. Moulton .............. 403 Holbrook v. Holbrook. ....... 421 Holcroft v. Halbert Holland v. Long. Hollenback v. Marshalltown.... 156 Holliday v. Cromwell.... .... 619 Holly v. Flourney..... 250, 421, 446 Holman v. Bank...... ........ 406 Holman v. Hopkins............ 571 Holmes v. Trumper..........-. 380 Holyoke v. Haskins.... ....... 96 Homer v. Wallis.... .. ...... 405 Hook v. Stovall ............... 156 Hooker v. Johnson ............ 387 Hooks vy. Anderson.......... .. 549 Hoover v. Gehr ... .......---. 389 Hoover v. Pierce ...... «-.. 607 Hopkins v. Chittenden......... 370 Hopkins v. Kent.... .......... 92 Hopkins v. R. Co.......0...... 145 Hopkins v. Smith ............. 419 Hopt v. People........ ....... 470 Horey v. Grant... ......e.005- 179 Hora. V:; Rossi. eis viene seseees Horton v. Horton............. Horton v. McCarty Horton v. Weiner ............. Howard v. Britton............. Howard v. Ins. Co.... Howard v. Newsom .. Howard v. Patrick Howard v. R. Co...... Howard v. Reedy............ Howard v. Sexton...... Howard v. Snelling Howcott v. Kilbourn ......... 427 Howe v. Plainfield. ........... 527 Howe v. Snow .......... 425 Howell v. Ray ... ........... 406 Howe Machine Co. v. Clark .... 427 Howe Machine Co. v. Souder.55, 185 27 5 Howe Machine Co. v. Stiles .... 226 Howlett v. Howlett ............ 519 Howser v. Com...........e0008 148 TABLE OF Cases CITED. PAGE. Huber v. Gazley.............4. 90 Huckabee v. Shepherd ......... 560 Hudgins v. Crow.............. 617. Hudgins v. State ..... ........ 177 Hudnut v. Weir..... ......: 476 Hudson v. Daily...... nee 250 Hudson v. Putney.... . ...... 618 Hudson v. Stockbridge......... 210 Hudspeth v. Allen............. 431 Huebsch v. Scheel............. 209 Pi Vs aM: a seta, aie ea eee 224 Huffman v. Cartwright ........ 454 Huffman v. Click... ...... .. 395 Huffman v. McCrew........... 612 Hughes v. Christy ............. 196 Hughes v. Easten.............. 629 Hughes v. Moore.... ........ 474 Hughes v. Wilkinson Hultz v. Gibbs ........ Humes v. Bernstein. Hunneker v. Farmer Hunscom v. Hunscom ......... 111 Hunt v. Amidon...... ..... 2. 627 Hunt v. Formby............... A419 Hunt v. Gray .... .... a aaitveecins 380 Hunt v. Haven ..............-. 457 Hunt v. McClellan.... .... ... 476 Hunt v. Rhodes ..... ei eleidihierseeaiees 521 Hunt v. Roberts.............4. Hunt v. Thorn ........ ....... Hunt v. Whitney .............. Hunter v. Fulcher .. Hunter v. Lee....... Hunter v. Watson ............ Hunter v. Wright ............ Hunting v. Emmart........... Huntington v. Charlotte........ 82 Huntley v. Huntley... ........ 474 Hurlbert v. Hammond ......... 222 Huss v. Morris ..... .......... 523 Hutchins v. Gerrish............ 250 Hutchins v. Hamilton.......... 277 Hutchins v. Hutchins.......... 421 Huyettv. R.Co.. we eae 1%5 Hyatt vii Wait.25sssascaceeeas 610 Hydrick v. Burke ..... ....... 270 I. Imboden v. Mining Co......... 214 Ingle v. Mudd..... .... ...... 279° Inglehart v. State.............. 156 Ingraham v. Hart........ sacs 273 Ingram v. Little .............. 628 Ins. Co. v. Armstrong......... 172 Ins. Co. v. Bowman .......... 827 Ins. Co. v. Boyle ......... 184, 422 Ins. Co. v. Brickner ........... 369 Ins. Co. v. Carlin......... wee 424 Ins. Co. v. Carter.............. 527 Ins. Co. v. Cobb............... 268. TABLE OF CASES CITED. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. Ins. . Rosenagle ... .22, . Sharp ‘ . TrustCo.. . Warren .... . Wiler SAd AAA AAAS ASASAAS AAS SAAR ARS Trish v. Newell..............4. Irvine v. Adler................ Isbell v. R. Co. ........005 398, 399 Iverson v. Saulsbury........... 328 Ivey v. Noble..........00--e0e Jack v. Martin..... ........... Jacks v. Stimpson 3 Jackson v. Allen ...... Jackson vy. Andrews Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v. Jackson v,. Shepard as Jackson v. Witter.............. Jacobs v. Remsen . Jacobs v. Shorey .......... +. James v. Muir. ......... ....- 489 James v. Patterson Jameson v. Conway.......6..5- Jefferds v. People...... Sogtiareie aie er Jackson Kingsbury Kingsley........ 222, 385 Kniffen............. seme rec er eee XXi PAGE Jenkins’ Will........... siete 576 Jenkins v. Cooper ...eseeeeees 519 Jenkins v. Lovelace............ 482 Jenkins v. Means....... aiels Suis 616 Jenness v. Iron Co......... 488, 489 Jerry v. Townshend............ 147 Jessup v. Steurer Jewell v. Jewell..... Jewett v. Cook....... Jewett v. Warren Jilson v. Gilbert ............... Jilson v. Stebbins ............. 458 Jocelyn v. Barrett .......... . 590 Johnson’s Will ... ........... 225 Johnson v. Buck .............. 491 Johnson v. Copeland........... 671 Johnson v. Cunningham........ 251 Johnson v. Cuttle.............. 488 Johnson v. Day .............0- 439 Johnson v. Gorham............ 618 Johnson v. Howe.......,...... 250 Johnson v. Johnson. . 312, 378 Johnson v. Josephs.... 279 Johnson v. McKee............. 45. Johnson v. Pate ..........-... 821 Jobnson v. Porter .... ....... 19 Johnson v. Quarles......... ... 458 Johnson v. Shaw......... ... 402 Johnson v. State... 31, 125, 146, 428 433 Johnson v. Watson .. ........ 483 Johnson v. Wright.... ....... 589 Johnston v. Patterson.......... 213 Johnston v. Worthy Joiner v. Borders .... ........ Jones v. AMeS............ Jones v. ASSN........... Jones v. Austin.... Jones v. Brown ........ es ee eee Jones v. Clark............ .... Jones v. Fauchet .............. Jones v. Finch ..............4- Jones v. Hurlbut........... 2. Jones v. JoneS... ..cceeeeee Jones v. Kerr..........00..00 Jones v, King............00008 Jones v. Knauss............... Jones v' Mosely ........ Wsiecaieadts 681 Jones v. Norris .. ........... 432 Jones v. Sevier.... ...cceseeee 515 Jones v, Shewmaker Jones v. Shorter Jones v. State Jones v. Van Doren Jones v. Williams Jones v, Witter............0... 442 Jones v. W00d .........0ecee 34 Jonsson v. Thompson.......... 219 Jordan v. Osgood ...... 393 Jordan v. Pollock....... e i 370, 418 XXli PAGE Joyce v. Com.......cee-eeeees 40 Judd v. Brentwood............ 31 Judson v. Gibbons............- 494 Justice v. Lang........ aire savsia wes § 490 K. Kaehler v. Dobberpuhl........ 445 Kaime v. Harty... ........... 88 Kalamazoo v. Macalister........ 513 Kanev. Footh. .c.cciccseveecca 612 Karr v. Stivers ............. 387, 388 Kearney v. Sascer. .......... 561 Keaton v. Mayo............ Keator v. People........... Keener v. State............ Kellar v. Savage............... Kelley v. State...... ......-.. Kellogg v. Steiner............. Kelly vi Humbe saveacen aire Kelly vi Ri, C6. iicccsaw oe geeases Kelsey v. Frazier............5- Kelton v. Taylor.............- Kendall v. Brownson Kendall v. Field...... Kennedy v. Devine ....... ... Kennedy v. Kennedy ......... 559 Kennedy v. Mackey ........... 312 Kent vi Kent, cos ssvcseas 488, 485 Kenyon v. Luther........... . 178 Kerr v. Farish.. ........0...0- 368 Kerr v. Freeman... .......... 626 Kerwin ¥. Hillusccscesascccses 404 Kessel v. Albetis ...........-.. 272 Ketchum v. Evertson.......... 626 Ketchum v. Ex. Co.... ....... 277 Key v. Jennings Key v. Vaughn....... Keyser v. Coe......... Kidd v. Carson................ Kidd v. Manley............... Kidder v. Rand Kilborn vy. Field ............... 606 Kilmer v. Smith........,...04. 554 Kimball v. Semple............. 684 Kincheloe v. Tracewells....,... 618 King v. Colvin .............2., 277 King v. Eriswell...........- 35, 385 King v. Gilson .... ......-..4- 627 King v. Hanna,...... sis s/atetoioreu's 485 King v. Kerr......... -. 627 King v. Moon.........eeeeeeee. 172 King v. Randlett .. ... ...... 613 King v. Ruckman. ............ 553 King vy: Rytonegssse adie wseieiecee's 384 King v. Wilkins ............05. 448 Kiogman v. Graham .......... 329 Kingsbury v. Moses........... 156 Kinnare v. Gregory......... 88, 90 Kirchner v. Laughlin .......... 220 Kirk v. Hamilton........ ..... 828 TABLE OF CASES CITED. PAGE Kirk v. Hartman...... Siete daleae 520 Kairk VuSmithen 6s. cece eae cess 479 Kirkman v. Bank............ 446 Kirksey v. Kirksey............ 497 Kitchen v. Smith ..... ....... 406 Kitchens v. Kitchens........... 225 Klare v. State.............- 272 Klein v. Russell ............... 349 Kleine v. Nie..........eceeeee- 506 Kline v. Gundrum............. 42 Knapp v. Hyde ............... 518 Knight v. Heath.......... .. 172 Knight v. House........ .-. 30, 439 Femi BG Ve Ts aes cies eeiciaceunterone sais 148 Knowles v. Hull........ ...... 484 Knowles v. Knowles........ 201, 559 Knowlton v. Moseley... ... 445, 454 Knowlton v. Smith............ 614 Knox v. Knox ... .........4. 288 Knox v. Thompson... .... .. 630 Knox Co. v. Aspinwall ........ 456 Koehbring v. Mumminghoff..... 209 Konig v. Bayard .... ......... 429 Kowing v. Manly.............. 405 Krammen y. Mill Co... 175 Krapp v. Eldridge........ -.. B21 Kribbs v. Jones.......-seeeee8. 480 Krise v. Neason..............6- 224 Kuney v. Dutcher............. 439 Kurtz. v.. Hibner ... «ss scsisresccscee 2 478 Kutz’s Appeal ................ 417 Kyburg v. Perkins............. 397 Kyle v. Kavanagh........... - 626 Kyle v Logan ...........6-.66. 89 L. Labaume v. Hill............... 279 La Fromboise v. Jackson....... 615 Laird v. Allen................. 475 Poaird.v.. Davisies. ewok wed esas 177 Tbaird ‘v.. State. oo. esse eee eas 270 Lake Superior Co. v. Drexel.... 79 Lake Water Co. v. Cowles. .... 268 Lamar v. Com’rs .............. 83 Lamar v. Micon. .......... .. 96 Lamar v. Turner......... 4... 437 Lamb v. Girtman.............. 577 Lamb v. Irwin. ...........0025 402 Lamb v. Klaus.... ........... 537 L’Amoreux v. Vischer... ...... 439 Lampson v. Hobart............ 494 Land Co. v. Bonner... 247, 248, 436 Landers v. Bolton.......... ... 406 Landis v. Twiner.............. 886 Lane v. Brainerd ............4- 34 Lane v. Latimer...... aretubnenieith 520 Lanergan v. People............ 439 Lang v. Henry............. 480, 489 Lang v. McDow.. ............. 36 Lang v. Waters... .......00000. 446 TABLE OF CASES CITED. PAGE Langdon v. Paul............. 608 Langdon v. People .... 287 Langenberger v. Kroeger....... 380 Langston v. Bates ........0e6. 475 Lansing v. Chamberlain........ 406 Large v. Van Doren ........4.. 224 Larkin v. Mead................ 440 LaRose v. Bank .............6. 427 Larsen v. Johnson..........6+. 503 Lasher v. Lasher ..........+..- 572 Lathrop v. Adkisson........... 48 Lathrop v. Bramhall........... 248 Laub v. Paine. c aelan ahaa 379 Law v. Smith.... ............ 618 Lawrence v. Barker.... ....... 48 Lawrence v. Lawrence. - 445 Lawver v. Langhans..... -+- 538 Leach v. Fowler........-...... 458 Leake v. Ball .............-2205 509 Leavitt v. Cutler ....... wank 268 Ledbetter v. McGhees Lee v. Helmes...........0-..2- Le Vi Hill os sccsceten ate seuia siaee ss ege v. Mayor .......-eeee08. Ten v. R OO: s 4 sadn setae Lehman v. Warner..... ...... Leinkauff v. Brinker. Lenhart v. Allen ............-. Lenox v. Fuller .............05 Leonard v. Phillips...... Leppoc v. Bank.... . Lessee v. Burke...... 3 3 Lester v. Sutton... ..ceese cee Levan v. Vannevar............ Levy V. Levy sie sess nsies cases Lewis v. Brehme.........0..-- Lewis v. Brewster.........+..- Lewis v. Dille............ 2. Lewis v. Harris ...........02-- Lewis v. Wintrode ............ Lincoln v, Claflin.............- Lincoln v. Fitch ..........56.. Lincoln v. Preserving Co....... 480 Lindley, Hv parte.............. 589 Lindley v. Horton .........66. 527 Lindsay v. Williams ........... 268 Lindsey v. Atty.-Gen.. 269 Linscott v. McIntyre..... 484 Little v. Palister..... ...... .. 28 Littlefield v. Getchell .......... 458 Livesley v. Lasolette. ......... 446 Livingston v. Arnoux ...... 40 Livingston v. Ins. Co.... ..... 94 Lloyd v. Wright....... ayaiswranerers 487 Lobdell v. Lobdeil..... Meeaodon 45 Loeb v. Flash.........-eee0--- 172 Logan v. Bond .............4. 561 Logan v. Moulder .......... - 627 Long v. Conklin............4-- 390 Long v. Drew........seeeeeees xXili PAGE Long v. Wagoner............4 634 Long v. Young.... --- 612 Loomis v. Loomis.............- 449 Loring v. R. Co... . cc cceeeeee 170 Los Angelos v. Mellus..... ... 321 Lot v. Thomas ... ........... 627 Love v. Dickerson...... ...... 279 Lovell v. Frost............000- 617 Low v. Burrows. .........0.05 294 Low v. Mitchell ...... ........ 131 Lowell v. Flint...... ah ealctatate's 221 Lozier v. Westcott............. 371 Luark v. Malone ............. 494 Lubbering v. Kohlbucher ..... 371 Lucas v. Parsons ............2+ Luchtmann v. Roberts Luckhart v. Ogden..... ...... Lubrs v. Kelly ..............- Luke v. Calhoun Co............ Lull v, Cass... csccsseaeecee ess Lumpkin v. Murrell.......... . 259 Luted v. Rose.........seeeeeere 312 Lyman v. Bechtel.............. 388 Lyman v. Philadelphia ........ 30 Lynch v. Goldsmith ........... 517 Lynch v. Hicks.............068 378 Lynes v. State. ......c.seeceee 459 Lyon v. Culbertson............ 515 Lyon v. Phillips............... Lyon v. Smith ..... Lytle v. Beveridge M. Machine Co. v. Wilson. ....... 214 Macomber v. Scott........ .... 405 Madison v. Zabriskie... ....... 490 Magee v. Osborn .............. 403 Magoun v. Walker............. 229 Magruder v. Gage.............. 487 Maher v. Miller............ ... 515 Mahone v. Bryant.............. 267 Mahone v. Williams ........... 458 Mailler v. Propeller Co... ... . 170 Maine Co. v. Longley.......... 401 Major v. State........... sea. 29 Majors v. Rice... .. 614 Malecek v. R. Co.... «+. 423 Mallory v. Gillett.............. 494 Mamlock v. White ..... .... 433 Manderschid v. Dubuque. ...... 90 Mandeville v. Reynolds ..... 92, 224 Mann v. Cook... ........e000e 544 Mann v. Eckford.............. 610 Mann v. Smyser ........... 209, 511 Mansfield v. Edwards.......... 551 Mansur v. Haughey............ 90 Manuf. Co. v. Moe ............ 519 Manuf. Co. v. Water Lot Co.... 624 Manuf. Co. v. White 4 Maple v. Beach...........-..65 XXiv TABLE OF CASES CITED. PAGE PAGE Mapp v. Phillips ............. 427| McBeth v. Trabue............. 88 Marable v. Mayer............+. 317 | McBratney v. Chandler..... .. 515 March v. Walker........ .. ... %8| McBride v. Bryan............. 538 Mardis v. Shackleford. ......... 407 | McBurney v. Wellman ......... 476 Mariner v. Rodgers ...,...... 523 | McCain v. State............... 90 Markham v. O’Connor.......... 329 | McCall v. Powell........ ..... 312 Markle v. Board ........... 82, 83|McCamy v. Higdon.. .. ..618, 616 Marler v. State ........... ... 84 | McCanliss v. Reynolds......... 458 Marley v. Noblett.............. 483 | McCarty v. People............. 184 Maryuis of Anglesey v. Lord McCaskle v. Amarine.......... 630 Hatherton............- Shunule 175 | McCauley v. Hargroves .. .... 332 Marsh v. Jones ........ ... 420, 481 | McCausland v. Fleming. .32, 33, 396. Marsh v. Mitchell............-. 443 | McClellan v. Kellogg.......... 613 Marsh v. R. Co ......-.....005 185 | McClure v. Colclough........ . 629 Marsh v. Rouse............ ..- 492 | McClure v. Hill............... 83 Martel v. Somers .............. 448 | McComb v. R. Co......... 423, 426 Martin v. Berens....... .. 254, 616) McConnell v. Hannah.......... 40 Martin v. Cole........ x (svahshe sii 556 | McConnell v. Reid.... .... 2... 631 Martin v. Hardesty.... ....... 176 | McCormick v. Chevers......... 553. Martin v. Judd................ 588 | McCormick v. Elston.......... 3888 Martin v. Mitchell......... 578, 578 | McCormick v. Evans... ...... 230 Martin v. State .... ........... 420 | McCormick v. Herndon........ 314 Martin v. Stille .. .......... . 259 | McCormick v. Huse......... - 520 Martin v. Tobin... ............ 170 | McCormick v. Mayor ...... 89, 90 Mask vwiState: ccssrasi@exe aes 428 | McCracken v. Roberts......... 618 Mason v. Buchanan............ 208 | McCrary v. Caskey ....... ... 587 Mason v. Croom............... 184 | McCraw v. Ins. Co............ 417 Mason v. Fuller ........... .22, 27) McCubbin v. Patterson......... 606. Mason v. Philbrook............ 329 | McCune v. McCune............ 433 Mason v. Poulson .. ......... 421 | McCune v. McMichael........ . 456 Mason v. State ...............- 171] McDaniel v. Truluck .......... 391 Mason v. Wilson. . .......... 498 | McDill v. Gunn............... 209 Masonic Ass’n v. Beck .. ..... 149 | McEvoy v. Loyd.............. 614 Mast v. Pearce... ............ 210 | McEwan v. Ortman............ 544 Masury v. Southworth ......... 623 | McFarlan v. Ins. Co........... 390 Mather v. Corliss....... ....--. 629 | McFarland v. Pico............. 229 Mathews v. Mathews ...... 417, 446} McFarland v. R. Co... ....... 523. Matlock v. Glover ............. 404 | McFarlane v. Randle ......... 538 Matthews v. Huntley........... 78 | McGarrity v. Byington......... 406 Matthews v. Sheehan.......... 559 | McGee v. Guthry.... ......... 409 Matthews v. State ............. 472 | McGee v. Porter............... 576 Mattison v. Noyes ... ......... 369 | McGenness v. Adriatic Mills ... 422 Mauby v. Scott. .............. 79 | McGinniss v. State......... 228, 268 Mauch Chunk v. McGee........ 87] McGrann v. R. Co............. 541 Mauro v. Platt................ 417! McGrath v. Clark.......... 879, 457 Maxham v. Place ..... ... 119, 123 | McGregor v. McGregor........ 583 May v. Hewitt................ 523 | McGregor v. Sibley............ 618 May v. Jones.. .........06604- 360 | McGregor v. Wait............. 410 May‘v. Slate vic snssgcewacs vcs 493 | McGuire v. Bank.............. 224 Mayberry v. Standish........ 89, 90] McGuire v. Stephens,.......... 200 Mayer v. Adrian.............. McHose v. Wheeler...........- 393 Mayhew v. Sullivan McInnis v. Pickett............. 317 Mayor v. Cabott .............. McKay v. Kendrick. .......... 615 Mayor v. Howard .. .......... McKay v. Overton..........6-. 146 Mnyor v. United States......... 635 | McKee v. Bidwell...... ...... 173 Mayson v. Beazley. .......... 38 | McKee v. White...... .... ... 225 McAfee v. University.......... 571 | McKenzie v. Bacon....... .... 509 McAleer v. Horsley....... ..... 81] McKevne v. Barnes........ 403, 405 McAleer v. McMurray.......... 73 | McKim v. Blake.. ............ 456 McAndrew v. Radway.......... 228 | McKinley v. Lamb............ 577 TABLE oF CASES CITED. PAGE McKinney v. O’Connor........ 268 McKinnon v. Bliss...........0+ 394 McLain v. Com............6.. 35 McLaren v. Bank........ ..+.. 544 McLaren vy. Trvin... ........-. 616 McLaughlin v. McLaughlin .... 421 McLaughlin v. Shepherd....... 681 McLean v. Clark . ........ 429, 618 McLeery v. McLeery.... ...... 334 McLellan v. Bank........ - 279 McLendon v. Shackleford...... 451 McLeod v. Ginther ............ 40 McLoskey v. Gordon........... 607 McLurd v. Clark.............. 512 McMasters v. R. Co..... ...... 537 McMechan v. Griffing .. ..... 680 McNaughton v. McNaughton... 582 McNeeley v. Hunton.......... 431 McPherkin v. Jennings ....... 427 McPherson v. Featherstone..... 619 McPherson v. Rathbone........ McPherson v. State ........... McQuillen v. Manuf. Co....... McRea v. Bank... ..... Z Meade v. Black .......... ..-. Medlin v. Platte Co ........... Meed v. Husted................ Meek v. Holten.... ........... Meeker v. Cleghorn...... .. .. Megerle v. Ashe ......... ...- Meier v. Paulus ...........0.-. Meikel v. Sav. Inst ............ Melius v. Houston ............ Mellon v. Campbell ...... .... Meltzer v. Doll............ ... Melvin v. Bullard ............. Melvin v. Whiting....-........ Memphis v. R. Co........ ates Mendenhill v. Davis ...... ... Merchants’ Co. v. Leyser ...184, 422 Merkle v. State .......... vee. 895 Merritt v. Merritt ......... ... 331 Mervine v. Parker...... ... 83 Merwin v. Ward .............. 221 Methodist Chapel v. Herrick.... 393 Metts v. State .............00 ee 331 Meyer v. Casey .. «ue 208 Meyer v. Mitchell... .......... 200 Meyer v. Peck ..... .... +++ 282 Meyer v. Reichardt ............ Meyer v. Sefton ......... ..... Meyers v. Schemp ............ Michener v. Lloyd........... : Middleton v. Dubuque Miles v. Roberts .............. Millen v. State. ... ...... 177, 471 Miller v. Boykin........... 175, 397 Miller v. Cotten................ 475 Miller v. Fichthorn........... 218 Miller v. Fletcher .... ....... 519 D xXxXV PAGE Miller v. Johnson...... ....... 404 Miller v. McCoy............. « 209 Miller v. Moses ... ........ -- 437 Miller v. Neimerick............ 433 Miller v. R. Co........... 260, 420 Miller v. Stevens.............. 516 Millican v. Millican............ 57 Mills.v;. Ant josie ecsicdiguateave aa 491 Mills v. Johnston .,... ...-... 277 Miltenberger v. Croyle..... 82 Minard v. Mead. ......... -- 406 Mincke v. Skinner.. .......... 146 Minor v. San Francisco........ 82 Minturn v. Baylis............. 493 Mitchell v. Express Co......... 543 Mitchell v. Hannah..... ...... 41 Mitchell v. Jacobs ............. 223 Mitchell v. Mitchell............ 554 Mitchell v. Smith ............. 553 Mobile Co. v. McMillan ........ 553 Mohr v. Dillon... ............. 227 Molyneaux v. Collier .......... 413 Monaghan v. Ins. Co.......... 424 Monaghan v. School Dist....... 3899 Monroe v Behrens........-.... 210 Monroe v. State. .... .. .. . 282 Montclair v. Ramsdell.......... 238 Montgomery v. Machine Works. 295 Montgomery v. Pickering.. .. 632 Moody v. Rowell ...... ...... 405 Moody v. Smith .. .......... 484 Mooers v. Bunker.......-... 22, 23 Moon v. Crowder. ........... 404 Moore v. Armstrong..... . .. 515 Moore v. Com. . .........-5- 287 Moore v. Hamilton ...... ..... 454 Moore v. Hawkes.............. 418 Moore v. Hawks.... ... 370 Moore v. Johnston... wee. 478 Moore v. Merrill............... 627 Moore v. Moore ............... 454 Moore v. Neil .... ..-........ 92 Moore v. Sanborn ............ 279 Moore v. Wade............... 474 Moran v. Prather.............. 536 Mordecai v. Tankersly......... 606 Morehouse v Lord ............ 95 Morey v. Morning Journal Assn.. 359 Morgan v. Burnet ............- 82 Morgan v. Hubbard............ 433 Morgan v. Hughes....... ..... 20 Morgan v. Jones. ....... » ee 223 Morgan v. Patrick............. 406 Morgan v. R. Co.............4. 89 Moritz v. Lavelle ......... .... 509 Morrill v. Cooper.... .... ... 476 Morrill v. Mackman....... .. ATT Morrill v. Robinson ........... 209 Morris v. Callahan.......... .. 86 Morris v. Edwards............. 394 XXVvi TABLE OF CasES CITED. PAGE PAGE Morris v. Hogle........... oe 613 | Nepean v. Doe.........e0ee0e. 612 Morris v. Hulbert ............. 538 | Neumann v. Shroeder.......... 509 Morris v. Palmer .............. 80| Newan v. Rapier. . .......... 482 Morris v. State ........ es vecnceie ans 639 | New Bedford v. Hingham...... 207 Morris v. Wadsworth... ...... 453 | Newbery v. Wall............. 488 Morris v. Wordsworth ......... 408 | Newbold v. Mead .. .......... 208 Morrissey v. Ferry Co.......... 400 | Newell v. Horn................ 458 Morrison v. Hammond.... .... 612 | Newliall v. Dunlap............ 83 Morrison v. Kelly............4. 6380 | New Jersey Co. v. Boston Co... 587 Morrison v. Press Co........... 859 | Newlin v. Lyon. .... ........ 454 Morrison v. Taylor ............ 516 | Newman v. Shelley... ..... . 437 Morrison v. Wilson ............ 680 | Newman v. Young ..... ... .. 612 Morse v. Emery ...........4. . 82] Newson v. Starke... ...... 589, 590 Morse v. Hewitt ...... .......- 268 | Newson v. State............... 170 Morse v. Williams ............. 614 | Newson v. Thighen............ 632 Mortimer v. McCalla..... .... 423 | Newton v. Bronson............ 488 Moseley v. Boush.............. 297 | Newton v. Price............... 418 Moseley v. Ins. Co........ .... 272 | Newton v. White.............. 424 Moses v. Manuf. Co............ 615 | New York Co. v. Rogers....... 51 Moss v. Culver ...........-005. 475 | Nicoll v. McCalister Motley v. Motley.............. 541 | Nicholls v. Webb ............. Moul v. Hartman.............. 82 | Nichols v. Chandler Moulton v. Baer.............. 344 | Nichols v. Johnson Moulton v. Mason ............. 222 | Nichols v. Pool................ Moultrie v. Hunt.............. 571 | Nichols v. Stewart... .......... Moye v. State ....... ........ 439 | Nispel v. Laparles........... . 821 Moyer’s Appeal..... wiraittlehellacaiens 446 | Nixon v. Armstrong ........... 578 Muldraugh Co. v. Maupin...... 146 | Nixon v. Carco................ 328 Mullen v. Morris. ..... ..... Nixon-vy Porter sscnecs sons - 410 Mullen v. Lands............ 2. Noble v. Cope................% 437 Muller v, Pondir .......+0s0005 Nock v. Nock.... ........ 0... 577 Munford v. Pearce... ........ Norris v. Hunt..............6. 200 Munshink v. R. Co............ North v. Mendel ....... ...... 486 Munson v. Nichols .. North Brookfield v. Warren.... 27 Murphy v. Georgia . Northcutt v. Northcutt ........ 576 Murphy v. Purifoy.... ....... Northrup v. Ins. Co. .. ....... 425 Murrah. v. State i..cevisececes. North Stonington v. Stonington. 453 Murray v. Chase ........ 22... Norton v. Ladd....... ........ 111 Murray v. Cone ........-...... Norton v. Simonds............. 480 Murray v. Duke... ... ...... Norwood v. Cobb.............. 250 Murray v. Harway ............ Nourse v. Nourse...... 438, 458, 459 Murray v. Oliver.............. Nowlin v. Burwell. .. 2.0.0... 36 Murray v. R. Co. ............. 286 | Nudd v. Burrows ............. Vii Murray v. Sells... ....... 0... 521 | Nugent v. State ............... 29 Murray v. State.... ........06. 463 | Nurre v. Chittenden ........... 551 Murrill v. Smith............... 319 Musick v. Barney.............. 617 0. Mutcha v. Pierce.............. 45 | Oakland v. Ins. Co............ 419 Myers v. Vanderbilt ........... 588 | Oakman v. Rogers............ 488 Mygatt v. Tarbell ............. 501 | O’Donnell v. Leeman ..... 487, 488 Oelrichs v. Ford. .. .......... 523 N. O'Fallon v. Nicholson.......... 614 Nazro v. Fuller............ ..-. 3872| Ogden v. Jennings .... ........ 612 Neale v. Neale ..............- 478 | Ogle v. Brooks ............008- 170 Neaves v. Mining Co....... .. 4e4 | O'Halloran v. Fitzgerald ....... 334 Neff v. Horner................ 881 | Oiler v. Bodkey ....... . 20... 520 Neil Wi CaS 2 seinscrsicnsaawanxesn 382 | Oinson v. Heritage ............ 80 Nelson v. Davis ............... 561 | Oldham v. McIvery... ... .. 5389 Nelson v. Dickson ..... .....-- 350 | O’Mally v. McGinn............ 390 Nelson v. Weeks .............- 541 | Opinion of Justices ............ 273 TABLE OF CaAsEs CITED. PAGE Ordinary v. Thatcher.......... 619 Ordway v. Haynes......... 392, 395 Ouidge v. Sherborne .... ...... 240 Ormond v. Martin... ......... Ormsby v. People..... ........ Orton v. McCord .......... Osborn v. Elder ............... Osborn v. Osborn. . Osgood v. Carver ............. O’Shaugnessy v. Baxter........ 538 Ott v. Soulard................. 398 Ould v. Hospital. ............ Over v. Schiffling.............. 422 Overman v. Hathaway......... 328 Overman v. May ......++..0.. 90 Overton v. Bolton ............. 549 Owen v. Thomas.............. 383 Owens v. Northrup .... ..... 423 Owens v. State............000. 19 Owings v. Arnott..........e006 373 Ozment v. Anglin ............. 457 Ozmore v. Hood............06- 458 P. Packard v. Hill ............... 462 Packet Co. v. Clough.... . ... 428 Padgett v. Lawrence........... 421 Page Vi. Cole. es26.04 seis daeve'siene 537 Page v. Parker..... .. .... 19, 424 Paige v. Willett ............... 443 Paine v. Lake Erie ............ 273 Painter v. Ritchey............. 330 Palmer v. Albee......... ...5. 544 Palmer v. Largent ............ 380 Palmer v. Wright ............. 277 Paramore v. Lindsey.... ... .. 371 Pardee v. Lindley ..... 608 Parker v. Dillingham......... 501 Parker v. JonesS.........eeeeee. 615 Parker v. State.... .. ...-.... 247 Parker v. Steamboat Co... .... 40 Parker v. Valentine............ 172 Parkerson v. Burke .. ........ 229 Parkman v. Rogers...........- 487 Parks v. Moore.... ...seseeee- 83 Parmer v. Anderson ......... . 172 Parrott v. Thacher ............ 528 Parsons v. Trustees............ 90 Parsons v. Woodward ........ 561 Parvin v. Capewell ........... 446 Paschal v. Dangerfield ......... 97 Patch v. Ins. Co. ..........--- 537 Pate v. Mitchell ............... 627 Pattee v. McCrillis. ....... 228, 229 Patterson v. Garlock........... 197 Pattison v. Culton .......... - 542 Patton v. Gee .......6 ceeeeeee 442 Paul v. Berry. .....6...05 eee: 40 Paulin v. Howser... ... ....... 412 Paxson v. Bailey .............- 619 Payne v. Payne.... Payne v. Taylor...... .......- Payne v. Treadwell............ Peabody v. Speyers....... .... Peak v. People xa Peake v. Thomas.... Pearce v. Nix tt te wee w cee Peck v. Callaghan PO@CE Vay, Clarde: os cies sosssgsescn 4:0 340 Peck v. Hensley...... ........ Pek Vi LU can weiewseaoien 428 Peck v. Ritchey........ Peck v. Von Teller ............ Pelly v. Naylor.......... . ... Pelly v. Onderdonk............ Peltier v. Mict. . teem er eee coe Pelzer Co. v. Sun Fire Office.... 254 Penn. Canal Co. v. Dunkel..... 168 Penn. Co. v. Horton........... 261 Pennington v. Yell............ 73 Pennypacker v. Wineberger.... 148 People v. Anderson People v. Atkinson People v. Bawden ............. People v. Beek ................ People v. Bircham............. People v. Board ............... People v. Denison ............. People v. Devine ........... .. People v. Ehring .............. People v. Farrell .............. People v. Garcia............ People v. Gates...... People v. Hissing.. People v. Hodgdon .. People v. Ins. Co.............. People v. Knapp .............. People v. Long .........se.eeee People v. Marion .............. People v. McCrea.............. People v. McGarren ........... 111 People v. McHenry ............ 407 People v. McNulty ............ 287 People v. Murphy.......... 149, 418 People v. Pitcher.............. 433 People v. Rector........... 131, 134 People v. Simpson............. 40 People Ve Ty let. i-..6<25%ecn aie 380 People v. Van Alstyne . 147 People v. Williams ............ 259 People v. Young .............. 148 People v. Zeyst.........cceee ees 398 Perkins v. Barnes....... Palebberdiers 421 Perkins v. Ermel.............. 279 Perkins v. Hadsell ............. 405 Perley v. Chandler..... ....... 91 Perry v. Banks ..........-.... 455 XXviil TABLE OF CASES CITED. PAGE Perry v. Graves..........0000-- 435 | Poorman v. Mills... Perry'v. Hall seis cees0ecess 329 | Pope v. O’Hara ......... ..... Perry v. Simpson Co........... 443 | Porter v. Allen............. 2. Perryman v. Oreenville 196 | Porter v. Ferguson ............ Pershing v. Canfield........ ... 829 | Porter v. Waltz ........ 2.2.0. Peter v. Thickstun........ .... 393 | Portland v. Whittle. Peters v. Gallagher .........+4. 390 | Potter v. Everett ............. Peterson, Hr parte ............ 268 | Potts v. Coleman.............. Peterson v. Mayor. . ... ..... 401] Potts v. House. ........... 146, 573 Petillon v. Wilmarth........... 168 | Power v. Cassidy... ........... 590 Pettes v. Bingham ............. 574 | Powers v. McKenzie ........... 187 Petty v. Kennon......... iareiaies 496 | Powers v. Prov. Inst........ .. 519 Phares v. Barber ............05 Prater v. Frazier ........... oe. 248 Phelps v. Bostwick Pratt v. Patterson.... . ... ... 84 Phelps v. R. Co...... ce eee eee Preachers’ Aid Soc. v. Rich .... 589 Phelps v. Tilton ......... Prescott v. Hayes : Philadelphia v. Fox Preston v. Gould Phillips v. Chappell Preston v. Mann........ ...... Phillips v. Costley...........6. Price Vi DULIN jaeatiewics s eevee Phillips v. Croft ............... 559 | Price v. Jennings Phillips v. Kelly............... 45 | Price v. Lawson............... Phillips v. Ocmulgee Mills ..... 487'| Price -V;, State. ..24 ¢ 00s oswesewes Philpot v. Taylor .......... 177, 459 | Price v. Thornton Pickard v. Bailey ... ......... 252 | Prideaux v. Mineral Point Pickens v. Davis. . .......... 225 | Priest v. Wheeler Pickering v. Langdon.. ....... 583 | Prime v. Eastwood ............ 172 Pickering v. Reynolds ..... 186, 457) Primm v. Stewart ............. 23 Pier ¥, Dufh ccsceeni ssa snaaee 454 | Prince v. Prince Pierce v. Goldsberry ....... ... 439 | Prince v. Smith............ 0... 386 Pierce v. Judseth ........ ..... 264 | Printup v. Mitchell.... 40, 474, 475 Pierce v. Lyman............... 279 | Printz v. Cheney .............. 131 Pierce v. Tidwell .............. 206 | Pritchard v. Smith............. 374 Piers: ¥. (State. cansoieeecaas 147| Prudden v. Rindsley ........... 88 Pierson v. People.............. 125 Pullen v. Hutchinson.......... 383 Pike v. Monroe ......... ..... 634 | Pusey v. Gardner.............. 479 Pillow v. Thomas.............. 417| Putnam v. Clark. ... ......... 371 Pinney v, Cahill. ............. 396 | Putnam v. Fisher.............. 186 Pinnix v. McAdoo...... 54, 184, 422] Putnam v. Goodall... ...... 242, 388 Riper Ve. TICs snoasave gees ce 516 | Putnam v. Johnson............ 95 Pireaux v. Simon ......... .... 503 | Putnam v. Walker........... 90 Pittsfield v. Detroit Plant v. Gunn Q. Platner v. Platner Quackenbush v. Ehle .......... 486 Pleasant v. State Quimby v. Buzzell............. 407 Plumer v. French. ... ..... 40, 370] Quimby v. Morrill ............. 209 Plummer v. Currier ........... 417 Plummer v. Ossipee............ 92 R. Plunkett v. Cobbett............ 149} Rabb v. Graham.............. 562 Poillon v. Secor ............... 295 | Rae v. Beach ..............0005 430 Poindexter v. Cannon.......... 519 | Raefle v. Moore................ 120 Polack v. Pioche ............. 134 | Rafert v. Scroggins ..........., 536 Polk v. Reynolds ........... . 589] Ragsdale v. Lander ............ 477 Pollard v. Stanton. ... .. .... 553] Rainbolt v. Eddy... ........, 380 Pomeroy v. Bailey..... ....... 448 | Ralston v. Miller.............. 33 Pomeroy v. Winship....... 474, 482] Randall v. Tel. Co............. 424 Pool v. Breeze. ............0005 440 | Randegger v. Ehrhardt ........ 458 Pool v. Buffum............ 2... 576 | Randolph v. Loughlin ......... 404 Pool v. Chase .............005 541] Randolph v. Perry............. 201 Poole v. Dicar...........e.0008 40} Randolph v. Woodstock ....... 197 Poorman v. Miller........ .... 34! Rangeley v. Spring ... ... ... 456 TABLE OF Cases CITED, XXIX PAGE PaGE Ransom v. Lodge...........-.. 327|R Co. v. McDonnell........... 451 Raper v. Birkbeck............ 383 | R. Co. v. McMahon. .......... 79 Rapp v. Palmer ............... R. Co v. Moffatt........ .... - 289 Raridon v. R. Co.............- R. Co. v. Montgomery . 617 Ravisses v. Alston ...........- R Co. v. Moranda..... 145 Rawlings v. Fisher R. Co. v. O’Brien.. ..... «+ 422 Rawls v. Ins. Co. ......... 145, 146] R. Co. v. Ohle ............ wee. 445 Rawson v. Bell ............... R. Co v Ordway. oe. 450 Rawstone v. Gandell Ri Co.ve Pratt cc4 oc eeesiscee. 293 Ray v. Castle... . ...seeee.eee R. Co. v. Quick ............... 454 Ray v. Townsend ......... ... R. Co. v. Rauck .... 6... eee 417 Rayburn v. Elrod.... ......... Ri Co. ¥. Ri COs osc cvwowie wees 209 Raymond v. R. Co ........... R. Co. v. Reeves ...........54. 623 R. Co. v. Ashcraft .. R. Co. v. Richardson ......... 175 R. Co. v. Bacon ............... R. Co. v. Riddle ..... ......0. 426 R. Co. v. Boffinger............ R. Co. v. Riegel ...5 .. ee cease 423 R. Co. v. Brady .......0..0200- R. Co. v. Riley........ 4 eee 31 R. Co. v. Burke............... R. Co. v. Rockafellow ......... 111 R. Co. v. Calderwood.... R. Co. v. ee R. Co. v. Campbell as R. Co. v. R. Co. v. Carrow.......... R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. R. Co. v. “ R. Co. v. R. Co. v. Swearingen.......... 83 R. Co. v. B. Co. v. Theobald... .... wee. 426 R. Co. v. R. Co. v. Thompson ........... 427 R. Co. v. R. Co. v. Trayes .......... R. Co. v. R. Co. v. Tyng... R. Co. v. R. Co. v. Venable . R. Co. v. R. Co. v. Walters... R. Co. v. R. Co. v. Weaver R. Co. v. R. Co. v. Whitley R. Co. v. R. Co. v. Wilkens ............. 543 R. Co. v. R. Co. v. Williams ........... 262 R Co. v. R. Co v. Wright.......... 2... 45 R. Co. v. Read v. Cambridge ............ 350 R. Co. v. Read v. Leeds. .......... 0... 90 R. Co. v. Reade v. Livingston... ......... 495 R. Co. v. Hedger ... ......... Ready v. Highland Mary....... 426 R. Co. v. Hendrickson ......... 175 | Real, Matter of ............... 3 R. Co. v. Hickman............ 404 | Rector v. Crawford......... .. Ri Coy YaLvyi wisn sins sist sesresyy 51} Rector v. Purdy......... ..... R. Co. v. Johnson ............- 424 | Reddin v. Gates ..... R. Co. v. Jones. .......... 828, 429 | Redgrave v. Redgrav ae Rs Cos V: JU: ss cece nesses os 563 | Redwine v. Brown ........... R. Co, v. Kellogg.......... 145, 146 | Reed v. Reed......... 0. ..0., R. Co. v. Kelly........ .. .55, 424| Reedy v. Smith... .. ........ R. Co. v. Ketchum............ 489 | Reels v. Knight .... .......... R. Co. v. Kneeland........... 97) Rees v. Chicago ....... ..... 90 R. Co. v. Lee..........06.-- 55, 426| Reformed Church v, School- R. Co. v. Mackey.......eeeeees 146) craft. sada ace paws ornare 518 B Co. v. Mahoney ............ 198 | Regan v. Howe .... .......... 629 . Co. v. . McClelland.... ..... 175 | Regan v. Regan..... ......... 196 XXX TABLE OF CASES CITED. PAGE PAGE. Reichert v. Voss.......... 2+ 315 | Rimel v. Hayes..........ee00+- 430 Reid v. Borland. .. .. 583 | Rinesmouth v. R. Co.......... 40 Reid v. Chatham .......... ... 611 | Ringo v. Richardson . 2. 558. Reilly v. Cavanaugh .......... 196 | Rings v. Richardson ........... 37 Reineman v. Blair..... ... 184, 422) Ripley v. Warren.............. 268 Relyea v. Mill Co..... ........ 543 | Ripon v. Bittel ............ 146, 395 Rembert v. Brown ...........- 369 | Rippe v. R. Co........... eee 92 Remick v. Sandford ......... 486 | Ritch v. Smith ............006- 87 Remshart v. Ham........ 0... 620 | Ritchie v. Kinney ............. 394 Renner vv; Bank wcccccevcacee ve 529 | Ritchie v. Pease .......... -.e- 200 lenney v. Williams ........... 172 | Rivers v. Thompson ........... 612 Reny v. Shoneberger .......... 634 | Rives v. Parmley .............- 228 Reservoir Co. v. Chase......... 606 | Rives v. Thompson ...........- 222 Revell v. State ........ ....... Rixford v. Smith .... ......... 292 Rex ve. Friends. ceccieccies sirsieies Robards v. Wortham .... .... 593. Rex v. Hardy ... Robbins v. Fletcher............ 172 Rex v. Heath ......... Robbins v. McMillan .......... 610 Rex v. Macclesfield Roberts v. Barrow........ ... 616 Rex v. Purnell Roberts v. Burke .... ..... 184, 185 Rex v. Roebuck. ............. 171 | Roberts v. Davis .............. 440 Rex ¥; Stone. csiccesiccicaceaisvies 177 | Roberts v. Johnson .......-.... 146 Rex v. Watson ................ 392 | Roberts v. R. Co........ es eee ee 288 Reynolds v. Chandler River Co. 626| Roberts v. Spencer ....... 223: Reynolds v. Ferree ............ 55 | Roberts v. Trawick..... ...... 562 Reynolds v. Ferrell............ Roberts v. Weiler..... ... .... 829 Reynolds v. Mamwmy.... . .... Robertson v. Evans............ 513 Reynolds v. Manning ..... .... Robertson v. Hay.......... 376, 607 Reynolds v. Nelson............ Robertson v. Walker..........- 554 Rheem v. Snodgrass............ Robertson v. Wright...... .. . 440 Rice v. Shook. ........ 3 Robinson v. Adams....... . .- Rich v. Eldredge Robinson v. Bealle............ Richards v. Miller..... ....... Robinson v. Ezzell ...... Richards v. Mills ............. Robinson v. King............. Richards v. Noyes........... Robinson v. Myers...........-- Richards v. Richards........... Robinson v. Prescott ..........- Richardson v. Darman......... Robinson v. State............0. Richardson v. Ellett ........... 587 | Robinson v. Walton........... Richardson v. Emery.......... 388 | Robson v. Harwell ............ tichardson v. George... .... 277 | Rocco v. State ............... Richardson v. Johnson......... 482 | Rockford v. R. Co....... aero Richardson v. Palmer.......... 684 | Rockwell v. Taylor............ Richardson v. Reede........... 541) Rodgers v. Evans... .......... Richey v. Burns. .. 279 | Rodgers v. Jones ........ ... Richmond v. Aiken. ........ 73 | Rodgers v. State .... Richmond v. Stoker ..... ..... 89 | Rodney v. Wilson ... Richmond Works v. Hayden... 424] Roe v. Doe ..........0..00000- Ricker v. Kelly..........0..00. 619 | Roe v. Jerome ................ Rickey v. Ten Broeck.. ....... 491 | Roe v. Tranmarr ...........-.. Rideout v. Newton.... ....... 403 | Roebke v. Andrews ........... Ridgeley v. Johnson ........... 41 | Roger v. Hoskins......... Ridgway v. Ingram....... ....- 488 | Rogers v. Atkinson............ Riegelman v. Focht..... ...... 501 | Rogers v. Durant ............. Riehl v. Foundry Ass’n.... 177, 459 | Rogers v. Marshall .....,...... Righter, 22 7... ... sees ee ee eee 455 | Rogers v. Rogers .............. Rifener v. Bowman....... .... 612} Rollins v. Henry .............. Riley v. Butler................ 454 | Ronkendorff v. Taylor.. Riley v. Griffin............. 08 616 | Root v. R. Co. ... 1... eee eee Riley v. Jameson........... .. 615 | Rose v. Thompson. .......... Riley v. Minor .... ... se... 484 | Rosenmuller v. Lampe......... Riley v. Riley... ........ 2.6. 495 | Rosenstock v. Tormey ......... TABLE OF CASES CITED. XXXI Rosenthal v. Renick ... Rosser v. Harris....... Rothschild v. Ins. Co.. Rounsavill v. Peese.... Rowe v. Beckett....... Rowe v. Canney..... . Rowell v. Klein ....... Rowell v. Lowell... .. Ruch v. Rock Island... Rucker v. Man. Co.... ~Rudolph v. Landwerten Rudy v. Ulrich ....... Rule v. Maupin........ Ruloff v. People...... ; Runkle v. Gates ....... Ruohs v. Backer ...... Rush v. Megee .... ... Rushworth v. Moore... Russell v. Coffin ...... Russell v. Doyle....... Russell v. Erwin ...... Russell v. State........ .-. .86, 89 Schall v. Eisner. .............. Scharff v. Keener........0.e0.. Schell v. Plumb ............... Schell v. Stein..........0...-. Schenck v. Sithoff......... Schenley v. Com....... .... Schley v. Dixon... ........... Schmich v. Frank. Scholey v. Walton. Schreiber v. Butler... ........ 209 Schultz v. Culbertson.......... 607 Schumaker v. Schmidt..... .. 572 Schuylkill Co. v. Capley ..... , 606 Schwarz v. Oppold........ .. 373 Scott v. Bailey ............ -. 526: Scott v. Coxe..... cceeseeeeeee 387 Scott v. Harris.... .. ........ 147 Scott v. Ins. Co. .........0 eee 802 Scott v. McFarland.... ...... 474 Scott v. Ratcliffe ........ ..... 23 Scott v. R. Co ie Scott v. Scott .... Russell v. Switzer ... 475 | Scott v. Shaler Rust v. Corporation............ 410 | Scowill v. Glassuer Rutland v. Hathorn............ 45 | Scranton v. Stewart Ryan v. Harrow.......... «+. 350 | Scripps v. Foster ..........-..+ 149 Ryan v. Kilpatrick ............ 614 | Scroggins v. State.............. 83 Ryan v. Lynch...........e00e 273 | Scruggs v. Scruggs...........- 617 Scurry v. Ins. Co......... se 511 S. Searcy v. Miller .........-...- 112 Sackett v. Spencer............. 475 | Sears v.Hayt. ....... iceitewares 424 S.fford v. McDonough......... 492 | Sears v. Wingate ...........46- 548 Sage v. Jones ..........cs0eeee 561 | Seaton v. Scovill .... .......5- 649 Sam v. State... ........ 0.08, 148 | Secrist v. Petty.... ........0.. 268 Sample v. Frost ........... 22. 121 | Selden v. Canal Co ............ 482 Samp-on v. Shaw............5. 515 | Seligman v. Ten EHyck.......... 388 Samuels v. Borrowscale....408, 617| Selsby v. Redlon ...... ... 458 San Antonio v. Mehaffy........ 610 | Settle v. Allison. ... .. 250, 251 Sanborn v. Flagler ............ 490 | Sext v. Geise..............00., 509 Sanborn v. School Dist......... 399 | Seybolt v. R. Co.............- 302 Sandford v. Handy ........ 422, 423 | Seymour v. Delaney ........... 479 Sandifer v. Hand.............. 442 | Shaffer v. Lowry ............. 617 Sanford v. Mayor.............. 88 | Shailer v. Bumstead....2...... 562. Sanford v. Meridian............ 90| Shanks v. Lancaster...... .... 410 Sanford v. Sanford ...........- 92 | Shardlow v. Cotterell.......... 489 San Francisco v. Canavan...... 90} Sharp v. Johnson San Francisco v. Fulde........ 617 | Sharp v. Maxwell Sargent v. Hampden. ........ 120| Sharpe v. Bellis .............. Sasscer v. Bank............... 20| Shaul v. Brown.......-..-.-0+- Saterfield v. Randall........... 619| Shaw v. Gardner ... Satterlee v. Bliss .............. 370 | Shaw v. Nicholay. . aes Saulsbury v. Blandys........ . 200| Shaw v. Shaw .........0.... E Saunders v. Kastenbine........ 484 | Shelbina v. Parker ......... 819, 320 Saunders v. ees she ea 412 | Shelley v. United States........ 393 Sauter v. R. Co... .. 896| Shelton v. Marshall ........ .. 606. Saveland v. Green . 198, 370| Shepard v. Whetstone.......... 380 Sawtelle v. Drew ...........-- 536 | Sherman v. Burnham.......... 551 Sawyer v. Vories............-. 561 | Sherman v. Trans. Co.... ..... 484 Saxton v. Nimms .... ....... 398 | Shiels v. Roberts ...... .. .... 616. Scammon v. Campbell. ....... 525 | Shiffler v. Com...........5.... 471 XXxii TABLE OF CASES CIEED. PAGE PAGE Shirland v. Iron Works..... .. 421 | Smith v. Loomis .............. 480 Shisler v. Vandike......... ... 380 | Smith v. Morrill......,.......- 535 Shoemaker v. Kellog....... 387, 389| Smith v. Mott ........... ... 509 Shoenberger v. Hackman ...... 195 | Smith v. Moynihan........ 512, 423 Shvok v. Pate ........66 06: 82, 392] Smith v. Odom ........... 209, 511 Shook v. Vanmater....... ... 494} Smith v. Penny................ 437 Shore v. Wilson .... ... ee.--s 522 | Smith v. Pursell.............. 33 Short Mountain Co. v. Hardy... 418| Smith v. Shepard ............. 627 455, 487; Smith v. Smith .... ...... 196, 559 Shulman v. Brantley ....... -- 277 | Smith v. State..... 0. 22... 29, 463 Shumway v. Fleakey ........- 270 | Smith v. Stevens.........+- 259, 618 Shutte v. Thompson 32| Smith v. Stickmey ........ .... 31 Sias v. Munroe ....-..+.. Smith v. Tallahassee .... ..... 544 Siegbert v. Stiles ...... Smith v. Wallace ........ 2... 424 Sikes v. Shews.... ...-.00--5- Smith v. Wright .......... 410, 554 Silcox v. Harper.......... ..-- 590 | Snell v. Brey.............. 24. 440 Simmons v. Jennings .......... 444 | Snodgrass v. Butler ........... 334 Simmons y. Haas....... 418| Snow v. Walker ....... .. ... 440 Simmons v. Havens........... 408 | Snydacker v. Brosse.......... 446 Simmons v. Rust .......-.006- 428 | Snyder v. Fulton.............. 367 Simmons v. Spratt......... .. 48 | Snyder v. Koons.............. 209 Simons v. Steele...........--5- 825 | Snyder v. Van Doren .... .... 378 Simpkins v. Smith ............ 19 | Soc. of Savings v. New London. 456 Simpson v. Davis..... .......- 382 | Solomon v. Jones ... ... rr) Simpson v. McGlathery ........ 634} Solon v. Bank... 2. ......eee 288 Simpson v. Simpson.... ... 407, 576| Somers v. Wright. ........... 388 Sims v. Sims........... 81, 156, 510] Somerville v. Somerville..... 95, 96 Sinclair v. Wood ........-..... 383 | Sorsby v. Vance.. .....-...... 572 Singleton v. McQuerry .... ... 878 | Soulard v. Clark ........ 20... 398 Sisson v. R. Co... ......-. 898, 400| South. Ex. Co. v. Thornton .... 455 Skaaraas v. Finnegan.......... 227 | South Ottawa v. Perkins ...... 272 Skelton v. Dustin... ........-- 556 | South Park v. Todd... ........ 440 Skinner v. Crawford.......... 614 | Southwest Co. v. Stanard...... 491 Skinner v. Lucas ............. 317 | Spaids v. Barrett ........0 0.22. 632 Skrine v. Simmons ............ 539 | Spanagel v. Dellinger.......... 418 Slade v. Nelson ........ 48, 389, 391| Spann v. Baltzell.......... ... 19 Slater v. Smith ................ 486 | Sparrow v. Hovey ...........- 612 Slattery v. People.......... --- 439 | Spaulding v. Kuight........... 512 Slaughter v. Com... .......... 97 | Spaulding v. Vincent.......... 462 Slingerland v. Slingerland.... . 48|Spears v. McAyr............. 156 Sloan v. Ault ........... 2. 6, 389 | Speek v. Dansman............. 606 Sloan v. Edwards............+5 80 | Speer v. Speer. ............... a2 Smalley v. Greene. .......... 484 | Spence v. Sanders ............ 389 Smelser v. Turnpike Co.. .. 827] Spencer v. Bank.... .......... 267 Smith’s Appeal............ ... 277) Spencer v. Carr ...... ......- 333 Smith v. Bell... ............... 583 | Spencer v. Robins. ........-. 29 Smith v. Betty ...........-.06- 45 | Speyerer v. Bennett ........... 34 Smith v. Bouvier.............. 279 | Spies v. Price. .. .....ee... ee. 501 Smith v. Chenault ........... 370 | Spiva v. Stapleton ............. 146 Sroith vy, Collins .224.005s0. 295, 428 |) Spooner v. Drum.............. 494 Smith v. Crooker ......... 2... 608 | Spring v. Ins. Co........... 2. 406 Smith v. Haston...... ..... 193, 869] Springer v. Oliver... ........ 573 Smith v. Forest ....... ..-..-. 186 | Squire v. State ........ ....... 247 Smith v. Green ............ 5. 539 | Squires v. Chillicothe.......... 45 Smith v. Hamblett............ 421) Stabe v. Mayberry............. 223 Smith v. Hollister ............. 428 | Stack v. Beach é Smith v. Hughes........... 398, 408 | Stackpole v. Arnold Smith v. Kent..............006 O77 | Stair vi, Bank oa. sek sess esianacen Smith v. Law .sccceecse ae eee 390 | Stall v. Meek..............20.. 446 Smith v. Lawrence............ 399 | Stamper v. Griffin. .31, 197, 614, 615 TABLE OF CASES CITED. XXxiil PAGE Stanbro v. Hopkins...........- 112 | State v. Marshall .............. Standard Oil Co. v. Van Etten.. 162] State v. McAllister ........... Stanfield v. Phillips............ 156 | State v. McCracken. . Stanford v. Ellithorp .......... 45 | State v. McGlynn.............. Stanley v. Epperson ........ .. 607| State v. McNeil =... Stanley v. Green .... «1... 0... 634 | State v. Merriman... Stanley v. Nelson State v. Miles ....... Stanley v. State ........... State v. Miller..... ........... Stanley v. White State v. Montgomery Stanton v. Boschert ........... 331 | State v. Morphy ............... Stanton v. Eager.............. 542 | State v. Morse................. Starr v. Sanford........... 228, 229] State v. Nash...............00. State v. Abbott......... 2.0... 278 | State v. O’Brien ........... State v. Able.......-....000- 84] State v. O’Laughlin ........... State v. Bank ...............-- 446 | State v. Patterson.......... State v. Barrows... ....... 119, 123] State v. Pike..... 2. 10... Btate v. Berg......... ee eeeeaee State v. Pomeroy.....-..... .. State v. Breeden............... State v. Pratt: ses essences State v. Brown... State v. Probasco ...........64. State v. Bruce ............. -. State v. Rawles.... State v. Bryan....... State v. R. Co... State v. Canal Co State v. Revells.... State vi. Cart .s).'s6' Sare'steme ees State v. Richeson............. State v. Colby...........e eens State v. Ross. . .-..ese0.8 ces Statevi Cole vc ees sins ieeiiseeee State v. Thomas. ............. 893 State v. Colston ..... 2... 2... State v. Trivas ........ eee oe. 416 State v. Credle .............05- State v. Tucker..........e.000- 90 State v. Crowell... 1... ..eee- 801 | State v. Umfield............... 45 State v. Davis...........--.00- 287 | State v. Walker ..... ae saved 41 State v. Draper.............00- 416| State v. Walters. ............. 89 State v. Edwards.......... 168, 268/| State v. Watson ..... rae State v. Elliott ........ ....... 112] State v. Wells. ........... 2... State v. State v. White ............... State v. State v. Wilson... State v. State v. Witham..... se State v. State v. Wood. ....... 56 Gee eae 146 State v. 9] State v. Woodward..........., 456 State v. State v. Zimmerman........... 187 State v. Stead v. Hinson ........ ...... 209 State v. Steadwell v. Morris............ 522 State v. Steamship v. Baillie ........... 145 State v. Stearns v. Reidy ....... eeeaees 173 State v. Stearns v. Stearns ............. 92 State v. Stebbins v. Duncan... ........ 407 State v. Hayes............00-- Steeple v. Downing.... ....... 614 State v. Haynes............. «. Steers v. Steamship Co...... Loe 22811 State v. Henke................ Stein v. Bowman....... .. i State v. Hopkins Stell v. Glass... ..........0.. State v. Houston Stenhouse v. R. Co State v. Hoyt ........eseeee oe 178 | Stephens v. Williams. . 264, 401, 448 State v. Huxford .........0..0. 147 | Stertz v. Stewart......... ..... 289 State v. Jarrett........0..eee es 278 | Stetson v. Wolcott............. 388 State v. Jerome ........eeeeees 184 | Stevens v. Morse ........... .. 630 State v. Kelsoe ....... ... ..-- 80 | Stewart v. Bank .............. 255 State v. King... . ....... .... 35]| Stewart v. Campbell........... 494 State v. Kingsbury ...........- 31 | Stewart v. Fenner ......... 172, 179 State v. Klinger ......... os ties 147 | Stewart v. Sonneborn.......... 277 State v. Lapage.........ceeeeee 170 | Stewart v. Swanzy......... 252, 273 State v. Lipscomb ............. 301 | Stewart v. Woodward ......... 87 State v. Litchfield............ . 147| Stiles v. Giddens ..... Sia Gin wie 04, 208 E XXXIV PAGE Stiles v. R. Co..........005 849, 422 Btiles v. State..............---- 40 St. John’s Parish v. Bronson.... 80 St. Louis v. Shields ........ 827, 440 St. Louis Gas Light Co. v. St. Louis Stobart v. Dryden.............. 413 Stockham v. Stockham......... 537 Stockwell v. Blamey ........-. 19 Stockwell v. McHenry ... 631 Stockwell v. Silloway .......... 172 Stoddard v. Kelly ............. 277 Stoddart v. Shetucket.......... 456 Stoker v. State . 134 Stokes v. State .......... tsanes 30 Stone v. Britton..........0..06- 828 Stone v. Segur......... ..0-8- 45 Stone v. Stevens ............06. 279 Stone v. Tupper ........-....06. 380 Stone v. Wood...... ...eeeeee 172 Storer v. Gowen ..... .... sees 419 Storrs v. Barker. ............- 459 Stovall v. Banks .............4- 449 Stowe v. Wyse ......... . 436 Stowell v. Beagle ...... 172 Stowell v. Buswell.. .... ... 561 Strader v. Graham...... a aldlerersne 96 Straus v. Minzesheimer......... 312 Streeks v. Dyer ....... ....6. 539 Stringer v. Ins. Co............. 312 Stringfellow v. Montgomery.... 19 Stringfellow v. State ........... 470 Strode v. Churchill ............ 249 Strong v. Brewer ............. 403 Strong v. Stevens Point ........ 156 Strong v. Waddell. ....... .., 829 Stroud v. Springfield..... -. 398 Stuart v. Binsse........ 892 Stuart v. Morrison. ..... Studdard v. Lemmond ......... Studstill v. State... .... ...... Stufflebeem v. Arnold.... ..... Stumpff v. Osterhage.......... Sugart v. Mays ............64- Sullivan v. Barnett ...... sis Sullivan v. Ins. Co...........-. Sulter v. Mustin .............06 Summers v. State.............. Summerville v. R. Co.......... Summevill v. Summevill ... Summons v. State.. ..... Sumner v. Cook. ......... Sumner v. Sebec.............-- Sumner v. Williams...... ..... Sunderlin v. Bradstreet......... Sunderlin v. Struthers.......... Supples v. Cannon.......... «. Sutphen v. Sutphen ............ 483 Sutton v. McConnell ........... 17 Swain v. Burnette ............. 501 TABLE OF CASES CITED. PAGE Swain v. Frazier....... ceveeee. 541 Swan v. County . ...seeeeseees 146 Swann v. West ........--..6.5. 455 Sweaney v. Mallory............ 312 Swearingen v. Gulick .......... 88 Sweat v. Shumway ..........+. 510 Sweatland v. Tel. Co.... ee... 54 Sweet v. Parker ..........-.05. 559 Sweet v. Wright. .... ........ 40 Sweezey v. Stetson.... ........ 445 Swett v. Shumway. ...... 218 Swift v. Ins. Co .........eeeeee 156 Swisher vi Comssiese- ses cae 416 Swope v. Forney ... .... owe 208 Sykes v. Keating ........... .. 444 Sykes: vi Lewis: : .ccsoomosiceses 432 Sylvester v. State ....... ...... 156 Symmes v. Arnold......... 578 T. Taddiken v. Cantrell........... 376 Tagiasco v. Molinari........... 490 Tams v. Hitner... ............ 406 Tanner v. Hughes ............. 73 Tappan v. Deblois.......... ... 572 Tate v. Ins. Co ...... ........ 485 Tatum v. Brooker ............. 475 Tayloe v. Dugger..........e06 614 Taylor v. Buckner..... .. .... 615 Taylor v. Davis Taylor v. Henderson........... Taylor v. Lowell Taylor v. Lowenstein Taylor v. Merrill Taylor vi Pecks scsi eesisicia Sosies Taylor v. R. Co Taylor v. Savage Taylor v. Smith Taylor v. Staples Taylor v. Tucker Tayon v. Ladew Teachout v. People ............ 471 Teal¥. Sevier’. ses dixie so. cews as 406 Tegarden v. Carpenter ......... 614 Tel. Co. v. Hopkins............ 198 Teller v. Patten .......20eeceee 295 Tenney v. Foote......... nia 279 Terrett v. Cowenhoven......... 334 Terry v. Bank ............ Terry v. Hammonds... Tesney v. State ........... : Tetter v. Tetter................ Tevis v. Hicks..... ........... Thallhimer v. Briokerhoff ..... 515 Thaule v, Krekeler. ....... ... 278 Thayer v. Ins. Co.............. 894 Therasson v. People............ 172 The Anny Warwick .......... 94 The Friendschaft .............. 95 The Nereide.... .... diese dba +. 94 TABLE OF CASES CITED. XXXV PAGE PAGE The Venus scissccviedisawsiedcs 94| Tucker v.'Finch ............... 177 Thomas v. Dunaway........... 172 | Tucker v. Peaslee............-. 455 Thomas v. Kinsey ...........- 429 | Tucker v. Tucker.............. 458 Thomas v. Morrisett ........... 251 | Tuggle v. McMath..... i eee wae 527 ‘Thompson v. Boyle ........... 183 | Tunnison v. Chamblin.......... 631 Thompson v. Deprez........... 145 | Turnbull v. Payson .... ....... 260 ‘Thompson v. Drake........ .. 432 | Turner v. Baker... Thompson v. Gowan...... .... 874 | Turner v. Hall................. Thompson v. Hall ............. 527| Turner v. Rogers ............-. 229 ‘Thompson v. Hamilton......... 626 | Turner v. State ..... .......... 114 Thompson v. Knight........... 471 | Turner v. Tubersing ..........- 170 ‘Thompson v. Mapp..........-- 243 | Turner v. Wilcox .. .......... 520 Thompson v. Manrow...... ...- 250 | Turney v. Chamberlain......... 614 Thompson v. Peck. ........... 51| Turrell v. Warren............-. 82 Thompson v. R. Co... ........ 149 | Tuttle v. La Dow...... .....-- 317 Thompson v. Thompson........ 82 Tuttle v. Robinson............. 206 Thompson v. Thornton.... .... 392 | Tuttle v. Turner ............... 428 ‘Thorndike v. Boston ........... Twomey v. Crowley........... 208 Thornton v. Mulquinne Twyne’s Case... ......--04- 81, 605 Thorp v. Bradley .............. Tyler v. Chevalier .... ........ 92 ‘Thorp v. Goewey ...... f Tyler v. Flanders... 23 Throckmorton v. Price....... Tyler v. Stevens .............. 349 Thudium v. Yost :..... .....6 Tyng v. Submarine Co......... 223 Thurmond v. Clark............ Tyte v. Glode......c.ccceueeeee 338 Thorst v. West .......0eeceee- U Tibbetts v. Flanders ........... : Tiffany v. Anderson...... ..... Udderzook’s Case .............. 3892 Tillou v. Ins. Co............-6- Union v. Plainfield. ........... 27 Tindle v. Nichols: .sascaevse os United States v. Alexander ..... 94 Tinges v. Mayor ...........+ United States v. Armory ....... 493 Tobin v. Shaw.......ceeccesees 9] United States v. Brig Burdette.. 422 Tome v. R. Co..........06- United States v. Douglass ...... 470 Toomer v. Rutland... ...... United States v. Lancaster ..... 52 Totten v. United States..... .. United States v. Macdaniel ..... 528 Touchard v. Crow ... United States v. Rodman...... 462 Tousley v. Barry............ .. United States v. Walsh......... 538 Towle v. Blake ........-.eese0- United States v. Wiggins ....... 462 Towne v. Milner........ ...... Usina v. Wilder ............... 610 Townsend v. Hargraves v ‘Towsley v. Moore..... .....+4- : Trammell v. Hudmon ...... Van Bokkelen v. Taylor ....209, 511 Trammell v. Pilgrim........... Vandegrift v. Abbett ........... 560 Trammell v. Thurmond Vandergriff v. Percy ........... 224 Transylvania University v. Lex- Van Duyne v. Thayre.......... 406 AN GON s.r naire eke am ana se 53 636 | Van Keller v. Schulting........ 519 Treadway v. R. Co......... Vanneter v. Crossman.........- 45 Treatman v. Fletcher 9| Van Reimsdyk v. Kane......... 449 ‘Treats’ Appeal..... .........-- Van Santen v. Standard Oil Co.. 543 Trevor v. Wood..... .. Van Sickle v. People ......... . 405 Trigg v. Taylor ... ..........- Van Storch v. Griffin........... 250 ‘Trist v. Child...... Van Syckel v. Dalrymple....... 511 Truax v. Slater. .........-..-. 442 | Van Vechten v. Smith... ...... 511 True v. Bryant ........-...--. 369 | Van Vickle v. Gibson.... .. .. 22 ETM TRG = 2 aca eee asin ee 402 | Vason v. Beal ............-. 170, 497 Trustees v. Calhoun............ 577 | Vaughn v. Stuzaker....... ..-- ‘Trustees v. Cokeley .......-..++ 431 | Veiths v. Hagge......... -..279, 387 Trustees v. Ins. Co........4..-- 484] Vennum v. Thompson ......... 442 ‘Trustees v. King.........+---+- 578| Vernon v. Kirk ............... 576 Trutt v. Spotts.........20.-.05- 635 | Verplank v. Sterry..........+.- 629 Tucker v. Donald.... ......... 895 | Vilas v. Reynolds... .......... 392 XXXvi TABLE OF CASES CITED. PAGE PAGE. Vincent’s Appeal....... i eiecclarsiees 247| Watson v. Anderson ........... 147 Viser v. Rice... ...0. seer eee. 628| Watson v. Bissell ..........066- 458 Von Sachs v. Kretz .........- 442 | Watson v. Hewitt.............. 312 Vose v. Dolan ........2.002000- 882 | Watson v. Hopkins ........ ... 383 Watson v. Pipes ............... 577 W. Watson v. Walker.......... 252, 462 Wabash Printing Co. v. Crim- Watt v. Gamabl.............64- 616 MINS cccasaases See a Saetes 359 | Watterson v. R. Co............ 209 Wade v. Pelletin......... ..... Watts v. Kilburn... ... ...... 408 Wade v. Saunders ............. Way v. Butterworth ........... 148 Wafford v. Wyly Weaver v. Aitcheson ........... 509 Waggeman v. Peters Weaver v. Alabama Co ........ 146 Wailes v. Neal........ .... _... 424] Weaver v. Bromley ........... 378 Wakefield v. Alton ............ 398 | Weaver v. Craighead..... ..... 219 Wakefield v. R. Co..........-- 423 | Weaver v. Fries ..... ......... 553 Waldo v. Russel ...........-665 407) Webb v. Richardson ........... 27 Walker v. Bank ..............- 264| Weber v. Anderson............ 516 Walker v. Curtis........... 88, 40) Weber v. Fickey. ............. 393 Walker v. Davis......... .. .. 92} Webster v. Calden ...--........ 418 Walker v. Dunspaugh.......... 433 | Webster v. Conley. ........... 626 Walker v. Johnson. ........... 484 Webster v. Le Compte ......... 501 Walker v. Jones. ............. 573) Webster v. Stearns ............. Walker v. Larkin ... ......... 831 | Webster v. Webster....... .... Walker v. Morris .............. 239 | Weed v. Emerson.... ......... Walker v. Schindel ....... .... 553 | Weiler v. Hottenstein Walker v. State.......... ...0. 273 | Weinrich v. Porter.... ..... Walker v. Walker.146, 270, 589, 606) Weisbrod v. R. Co............. Walker v. Wells. ...... ..... 526 | Welch v. Goodwin...........-. ‘ Wall v. Dovey .........2eeee ee 388 | Welch v. Jugenheimer.......78, 302 Wall v. Wall............. cee. 629 | Welfare v. Thompson.......... 526 Wallace v. Goodall. ........... 883 | Wellborn v. Weaver......... .. 684 Wallace v. Jewell.......... 378, 378 | Welles v. Battelle............. 399 Waller v. State ............005 320 | Welles v. Moore. ............. 820: Waln v. Philadelphia .......... 398 | Wells w Pierce................ 328 Walnut v. Wade..... ... ..... 273 | Wells v. Stout ................. 606 Walter v. Ross.........-.e eens 642 | Wells v. a nen ee weweqas eae 560 Walter v. Sample ............- 177| Wells v. Turner............ 432, 433. Walters v. McGingan ... ...... 509 | Wells v. Wells................ 582 Walters v. Odom .......... ... Welsh v. Barrett. ........... 41, 389 Walton v. Walton ..... ... El v. Stewart ............ 554 Walton v. Wetherill Wendell v. Abbott ............. 33 Wampler v. Wampler ..5738, 574, a8 Wendlinger v. Smith........... 519 Ward v. Comrs.. ........006.. 553} Wenner v. Thornton ........... 83 Ward v. Dick . .............. 172 | Wentworth v. Wentworth ..186, 457 Ward v. Dougherty ...........- 317] Werner v. Footman............ 536 Ward v. Leitch..............05 425 | West v. Randle................ 219 Ward v. State. ... ........eee 30| West v. St. John ........... 196, 277 Ward v. Wheeler... ... .....2. 387 | Westbrook v. McMillan ........ 627 Ware v. Brookhouse........... 458 | Western Tr. Co. v. Downer..... 293 Ware v. Jones. ...........ee eee 78) Westman v. Krumweide........ 227 Warehouse Co. v. Terrill ...... - 491] Weston v. Gravlin............. Warfield v. Lindell..... ....... 453 | Wetherbee v. Baker............ Warmouth v. Johnson. ....... 446 | Wharton v. Douglass ‘ Warren Co. v. Holbrook... .... 506 | Wharton v. Elborn............. Washburn v. Ramsdell. ....... 4385 | Wheat v. Arnold............... Wassum v. Feeney.......- ..- 350 | Wheatley v. Wheeler Water’s Appeal........ ...006 611 | Wheeler v. Frankenthal........ 475 Watkins v. Baird .............. 515 | Wheeler v. Moody ............. au Watkins v. State. ............. 610] Wheeler v. Tinsley ............ Watrous v. McGrew ....... ..- 230} Wheelock v. Hee we 54, 55, fad TABLE OF CASES CITED. PAGE Wheelwright v. Wheelwright... 634 Whelan v. Lynch. ............ 393 Whitaker v. Miller............. 628 Whitcher v. McLaughlin ....... 400 White v. Carroll ........ ..... 367 White v. Crew............-0065 607 White v. Holliday.... 2... .... 406 White v. Miller.......... 54, 55, 426 White v. Steamship Co......... 413 White v. Strother.... ......... 250 White v. Transp. Co..... 281 White v. Tucker.... .......... 455 White v. White..............: 447 Whitehead v. Foley ............ 614 Whitehead v. Park ........ 209, 511 Whitesides v. Bank ........... 378 Whiting v. State.............4. 427 Whitley v. State .......... 2... 320 Whitman v. Heneberry ...... 36 Whitmore v. Nickerson ........ 380 Whitney v. Ferris ............. 435 Whitney v. Houghton.......... 453 Whitney v. Robinson 827 Whitney v. Thacher............ Whitney v. Wyman.. Whiton v. Ins. Co.......... Whiton v. Snyder. ............ 40 Whittington v. Doe ........... 328 Whitwell v. Wyer ...........5. 418 Whyte v. Arthur. ............. 559 Wichersham v. Alton ....... .. 312 Wicker v. Hotchkiss .......-.... 177 Wiener v. Whipple .... ......, 489 Wiggin v. Goodwin ........... 520 Wiggin v. R. Co. .............- 418 Wiggins v. Keizer..... ..... 484 Wiggins v. Leonard ........ Wight v. Wallbaum...........- 5 Wilburn v. Hall................ Wilcox v. Hall...... .. Wilcox v. Waterman 1 Wilcox Co. v. Greene .......... 487 Wilcoxen v. Bohanan.......... 427 Wilcoxon v. Eason ........... 478 Wilde v. Armsby .............- 382 Wildey v. Crane ......seereeeee 509 Wiley v. Warmock .......- 615 Wilke v. Wilke ......-.eeeeeee 607 Wilkins v. Stidger ............. 439 Wilkinson v. Leary ............ 440 Wilkinson v. Moseley .......... 147 Wilkinson v. Tousley .......... 515 Willard v. Buckingham.... 184, 423 Willborn v. Weaver... ... ...- 629 Willets v. Mandelbaum......... 402 Willett v. Marston .........+..- 369 Willey v. Beach............ «80 Williams v. Baker .........-.++ 409 Williams v. Brickell ..... .... 198 Williams v. Cash..........+e5- 614 XXXVI Williams v. Williams v. Williams v. Williams v. Williams v. Williams v. Williams v. English Williams v. Evans............- Williams v. Williams v. Williams v. Com ... Conger Crutcher......... Davis bere cee teers Jordan Williams v. Keyser Williams v. Miner ............. Williams v. Reynolds ........ 445 Williams v. Robinson.... ..... 489 Williams v. State........... 170, 412 Williams v. Swetland .......... 436 Williams v. Waters..... .. .. 248 Williams v. Wiley.......... .. 88 Willis v. Hulbert .............. 516 Willis v. West ......... .-- 120, 123 Wilson v. Barnard......... ... 292 Wilson v. Beauchamp.......... 405 Wilson v. Bowden Wilson v. Duer........... Wilson v. Jordan Wilson v. Land Co Wilson v. Mason..... , ....... Wilson v. McClure Wilson v. McDowell Wilson v. Morse..... ...-..... Wilson v. Rastall Wilson v. liay..........seeeeee Wilson v. Sherlock Wilson v. Spring Wilson v. Van Leer....... .... 262: Wilson v. Wood ...........000- 626. Wilton v. Harwood ............ 475 Wimberly v. Bryan........ ... 474 Wimberly v. Hurst.... 538. Wimmer v. Ficklin ......... .. 828 Wimpy v. Gaskill.............. 346. Winchester v. Nutter.......... 615. Winchester v. Whitney ........ 556 Winchester Co. v. Creary....... 442 Wingfield v. Virgin............ 615 Winslow v. Newlan............ 433 Winston v. Gwathmey.......... 410 Winter v. Bent ...........0006. Winter v. Newell.............. Winter v. R. Co. .............. Winter v Walter... .......... Winthrop v. Ins. Co.......... Wise v. Wynn..... ae Withee v. Row ....... ......-- Woburn v. Henshaw Wolcot v. Knight.............. Wolf v. Bollinger... ...... Wolfe v. Pugh......... Wolkoff v. Tefft.............. XXXVill TABLE OF CASES CITED. PAGE | PAGE Womack v. Womack........... 454 | Wright v. Remington .......... 515 sree v. email Aves bese ncees 224 ke v. ae pe iateweemnabies aes ood v. Steele .... 2... ee eee ee 379 | Wright v. Wright....... acs Wood v. Surrells.......... . 545) Wunderlin v. Cadogan ......... 628 re v. aed ipee W's eared 626 yrert vy, a Siusior aks sfarsuauetoaveiees Ae oodman v. Eastman.......... 512} Wyche v. Greene ............4. } Woods v. ae i ans sear ecene 607 wyatt v. ae peer an Woods v. State ............... 34| Wyman v. Goodrich ........... Woodson v. Hubbard .......... 508 | Wynne v. Aubuchon........... 196 Woodstock v. Hartland......... 96 ean Huntoon........ 92 Y. Woolley v. Banks.............. 321 Woolley v. Newcombe......... 519 ae Rai Irby........ 404, aon Wooten v. Wilkins. ........... 416) volverton voSteclé......:c. . elverton v. Steele............. 612 Worcester v. Northboro........ 397) yooum v. Smith : 380 Worden v. R. Co... 1... eeeee. 182 "YOO. V:: POOPIE ia vsiciecsiarsieisiw erasers 395 Workman v. Greening.......... 559 | Younes v. Bank 371 Workman v. Wright........... 380 Be No OAS Sgn neaeecinsas : . Young v. Clippinger............ 626 Worthiog v. Worthing ......... 421) youns v. Cook 376 Worthington v. Scribner........ 125 Vienne vw Wullée ee 539 Wray v. Wray.......26..-- Bid, 642 | uae Peekiis # Rees 454 Wright v. Boston .............. 453 BN FONE ee ry Wright v. Butler .............. 296 Z Wright v. Hessey.............. 421 , Wright v. Oakley..... ....+... 390 | Zacharie v. Franklin ........... 490 Wright v. Preckett............. 475! Zuchtman v. Robert.......00..+ 457 LAW OF EVIDENCE. LAW AND PRINCIPLES OF EVIDENCE. CHAPTER I. NATURE OF EVIDENCE. Q. What is evidence ? A. Evidence (from videre, to see) is whatever directly or indirectly tends to elucidate the truth or falsity of a proposition in question. Our senses furnish evidence of the existence of matter; of heat and cold; of color; of solidity ; of the difference in the qualities of bodies and of figure. The declarations of a witness furnish evidence of facts to a court and jury, and reasoning, or the deduc- tions of the understanding from facts and argument, furnish us the evidence of truth or falsehood. ‘‘ Any instrument which contains proof.” ‘‘I delivered the evidence of the purchase to Baruch.”’ 32Jer. ‘‘Isub- scribed the evidence and sealed it.” Webster's Una- bridged Dictionary. ‘‘ Evidence is that which demon- strates, makes clear, or ascertains the truth of the very fact or point in issue.” 3 Bl. Com. 367. ‘It is whatever is exhibited to a court or jury, whatever it be, by matter of record or writing, or by the testimony of witnesses, in order to enable them to pronounce with certainty concern- ing the truth of any matter in dispute ;’’ Bac. A. Title, Evidence ; or “‘it is that which is legally submitted to a jury to enable it to decide on the question in dispute or issue, as pointed out by the pleadings and distinguished from all comment or argument.” 1 Stark. Hv. 8, et seq. ‘‘Judge” includes all persons authorized to take evi- dence, either by law or the consent of the parties. “‘Fact’’ includes the fact that any mental condition 6 Law AND PRINCIPLES OF EVIDENCE. exists. ‘‘ Document” means any substance having any matter expressed or described on it by marks capable of being read. ‘‘Evidence” means statement made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry. ‘‘ Documents” produced for the inspection of the court or judge are called docu- mentary evidence. ‘‘Conclusive proof” means evidence on the production of which, or a fact on the proof of which, the judge is bound by law to regard some fact as proved, and to exclude evidence intended to disprove it. A ‘‘presumption’’ means a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved. The expression “‘facts in issue” means all facts, which, by the form of the pleadings in any action, are affirmed on one side and denied on the other. ‘‘The word ‘relevant’ means. that any two facts to which it is applied are so related to each other that according to the common course of events, one either by itself or in connection with other facts proves or renders provable the past, present or fu- ture existence or non-existence of the other.” Reynold’s Stephens on Evidence, Article 1, pages 4-5. Q. What is competent evidence ? A. Competent evidence is that which is admissible. It must be such as, in some way, illustrates the issue or some one of the issues of fact. The words ‘‘ admissible” and ‘‘competent’’ are often used interchangeably, but. not with absolute accuracy. Q. What is sufficient evidence ? A. It is that which ought reasonably to convince the understanding of the truth or untruth of any proposition. It is that which is said to be satisfactory for the pur- poses of the particular investigation. Q. What is cumulative evidence? A. Evidence is said to be cumulative when its object is to add to evidence already in, other evidence of a similar nature and character; as when ‘‘A” is introduced Nature or EVIDENCE. 7 to establish an alibi and swears to facts showing it, and ‘‘B” swears to the same facts, ‘‘B’s” testimony is cu- mulative. In other words, it is the “heaping up” of the same kind and character of evidence. ‘‘ Cumulative,” forming a heap; it is additional or that which goes to establish the same point in issue or on trial, by the in- troduction of evidence similar in its character to that already introduced. Q. What is direct evidence? A. Evidence is said to be direct, as distinguishable from indirect or circumstantial evidence, when it points directly to the issue or issues. Direct or positive evi- dence is that which, if it be believed, establishes the truth of a fact in issue and does not rise from pre- sumption. Evidence is direct and positive when it does not rest for its acceptance on mere inference or pre- sumption. Its force depends on the confidence the jury may entertain of the truthfulness of the witness who details the facts which came within his personal obser- vation. The facts come to the witness through the media of his senses. If each of these is a trustworthy medium and the witness correctly reports the message it sends, the evidence of the witness will form a reliable basis for intelligent action. In direct evidence very few deduc- tions are to be drawn by the jury. There is no appeal to the experienced connection between facts already proved and facts in issue. The ordinary processes of ratiocination and comparison play an important part. It is a simple question of faith in the veracity of the wit- ness. If he be believed, it is the end of controversy on the question involved in his statement. A witness solemnly deposes that he saw the prisoner assault and beat the prosecutor and that nothing was said by either. So far as the battery is concerned, if the witness be truthful, the case is made out. Q. What is indirect evidence ? A. Indirect, or circumstantial evidence is such as does not point directly to the issue, but such as, literally 8 Law AND PRINCIPLES OF EVIDENCE. “stands around ” the fact or facts to be proven. It may point to the issue, but it does so in an indirect way. The senses of the witness, so far as the fact in issue is con- cerned, are not brought into service. It points to facts and circumstances, which facts and circumstances, in turn, may or may not point to the issue or issues. If the facts and circumstances pointed to are consistent with each other, and conclusively point to the hypothesis, and each fact and circumstance is consistent with the hypo- thesis claimed, such evidence, although indirect or cir- cumstantial, in real force and dignity, is equal to posi- tive evidence, and may furnish the surest basis for the most solemn verdicts of juries. Q. In determining the force and weight of indirect or circumstantial evidence, what rules is it always safe to observe 2 A. One, two, three, or a dozen facts, may lend sup- port to any hypothesis claimed, to-wit : that the prisoner committed the burglary. Tracks may correspond, rea- sonable opportunities may be shown, and familiarity with the premises, and that the prisoner fails to account for his absence from home, or to show where he was at the time the burglary was committed. Other facts in evi- dence may lend reasonable support to the hypothesis that another person committed the burglary. Other facts, still, may support the hypothesis that some person un- known committed it. Would it be right to convict ? Clearly not. Here there are many hypotheses. They are inconsistent with each other. Some point one way, some another. Some are consistent with the prisoner’s guilt, some are inconsistent. There are many perfect links but they belong to different chains. At the end of one is the prisoner. At the end of the other is another person, and at the end of the third chain is the unknown. Neither should be convicted. The links should all be- long to the same chain, well connected together. There should be but one chain, and in that chain there should be no broken links or false. At the end of the chain and fastened to it should stand the accused person and none Nature oF EVIDENCE. 9 other. On this basis rests the well-established doctrine in the trial of criminal cases on circumstantial evidence, that the jury should be satisfied, from the facts in evi- dence, beyond a reasonable doubt, that the defendant committed the offense and that no other person could have committed it ; for if the facts in evidence will sup- port the hypothesis of the guilt of another, as well as that of the prisoner, he ought not to be convicted. The verdict of the jury in such case would be the merest guess work. Juries should, in the trial of cases where the evidence is circumstantial, first be fully persuaded in their own minds of the truth of the inculpatory facts in evidence ; that these facts are consistent with each other and with the hypothesis claimed ; thirdly, that they all point to one single hypothesis ; fourthly, that they are inconsistent with any other hypothesis, and that when applied to any other hypothesis than the one claimed, they are inconsistent with each other. Q. What distinction is sometimes made between evi- dence and proof ? A. Evidence is anything, except argument, offered, under oath, or received by the court without the sanction of an oath to prove or disprove a fact. It is the means, while proof is the end or effect of, evidence. Proof has a much more extended signification than evidence. It embraces evidence, but much more. Evidence includes the reproduction, before the tribunal instituted to try the case, of the admissions of the parties, and of all facts relevant to the issue. Proof, says Dr. Wharton, includes presumptions, either of law or fact and citations of law. Proof, in this sense, includes all the grounds on which rests assent to the truth of a specific proposition. Evi- dence, on the other hand, is adduced only by the parties, through witnesses, documents or inspections. Proof may be adduced by counsel in argument or by the judge in summing up acase. See 1 Whart. Ev. § 3. Q. What is presumptive or circumstantial evidence ? A. Circumstantial evidence consists of the proof of cer- 9 = 10 Law AND PRINCIPLES OF EVIDENCE. tain surrounding facts which directly or indirectly illus- trate, prove or disprove, or tend to prove or disprove, the fact or facts asserted or denied. It is reflected light which may come from one of a thousand sources, falling directly on the darkened object or falling on one object: and being thence thrown on the darkened object, each contributing its part in clearing away the darkness at the common focus. Facts, which in themselves may have but little force, when connected with other facts, may amount to what is equal to positive proof. One single thread may be fragile; but when others are added and still others, it may become a strong cable holding the ship at anchor. In circumstantial evidence the main fact can- not be shown by positive evidence. It consists of the proof of other relevant facts, having a real or supposed connection with the main fact. The importance of the surrounding facts and their probative force, depend, in a great measure, on their connection with the main fact, and their consistency with it and with one another. If they are entirely consistent with each other and yet have no connection with the main fact, or if they are connected with the main fact, but are inconsistent with each other, they afford little weight in judicial investigations. ‘‘It is such evidence as only tends to establish the issue, by proof of various facts, sustaining by their consistency the hypothesis claimed.” ‘*‘ Presumptive evidence oon- sists of inferences drawn by human experience from the connection of cause and effect, and observations of human conduct.” Presumptive and circumstantial evidence are terms often used interchangeably. Ros. Crim. Ev. 18; 1 Stark. Ev. 18, e¢ seg. ‘‘A” is charged with the mur- der of ‘“‘B.” Noone saw the crime committed. The evi- dence for the prosecution is, that the prisoner had, shortly before the homicide, threatened to take the life of the deceased; that on the day the homicide is alleged to have been committed, the prisoner was seen to pass into a woods where the body of deceased was found and that he had a gun in his hands; that near the body of the deceased gun wadding was found, which, when exam- Nature oF EVIDENCE. 11 ined, was found to be part of a newspaper; that this part when applied to paper found in the prisoner’s pocket exactly fitted it; that the balls extracted from the body of deceased exactly corresponded with balls found in the prisoner’s shot pouch on the same day and exactly fitted his gun; that the gun when examined was found to have been recently discharged; that the prisoner when arrested denied having been in the woods on that day and told contradictory stories as to his whereabouts; that he set up an alibi and failed to sustain it, and finally, that he had an apparent motive for taking the life of the deceased. Now this is all presumptive or circumstantial evidence. There is a bare possibility of the prisoner’s innocence. His guilt is not shown to a mathematical certainty. The law does not require it. Moral and reasonable certainty is all that is demanded. In the absence of countervailing evidence by the prisoner in the case stated, the jury would be authorized to convict. Each fact proven points to the guilt of the accused. Hach fact is consistent with every other fact and with the hypothesis claimed, to-wit: the guilt of the prisoner. No mortal eye was witness to the deed; yet, here were facts which stood sentinel and carried to the jury every detail of the horrible crime. Mute, but unerring witnesses stood thick all about the tracks of the murderer. The gun, the balls, the paper, are instruments in his own hands, but they are the in- struments of the vengeance of the Almighty. Q. What is hearsay evidence ? A. Hearsay, second hand, or unoriginal evidence is such as does not come to the notice of the investigating tribunal under the solemn sanction of an oath legally administered to the party first making the statements, and does not depend for its acceptance on the veracity of the deposing witness, but consists of declarations or ad- missions made by some third party out of court and not under oath or to some other person or persons, who, in turn, relate them to the witness. It is the repetition by the sworn witness of what he has heard others say, or 12 Law AND PRINCIPLES OF EVIDENCE. of what others have written who were not under oath to speak or write truthfully. Q. Is hearsay evidence admissible ? A. Asa general rule it is not. Q. What is parol evidence ? A. ‘‘ Parole” isa French word which means literally “word” or ‘‘speech.” ‘‘ It is used to distinguish contracts which are made verbally or in writing not under seal, which are called parol contracts from those which are under seal which bear the names of deeds or specialties.” 1 Chitty’s Con.; 1 Ch. Pleadings. ‘‘Parol evidence is evidence verbally delivered by a witness.” Bouvier’s Law Dic. 281. Q. What is primary evidence ? A. Primary evidence is that, which is, in its very nature, the highest and best attainable evidence of the existence of any particular fact or facts in issue or on trial, and which must be adduced in proof of such fact or facts or a legal excuse rendered for its non-production. or secondary evidence will not be received. It is that which is first in weight and importance. In other words, however weak the primary evidence of the existence of a fact, or the truth of a proposition may be, it must be, in order to be primary, as distinguished from secondary, the best possible evidence of which the nature of the case is susceptible. What is primary evidence, is often a most difficult question for the adjudicating tribunal to determine. The parallels between what is primary and what is secondary are often so close and become so blended and confused as to puzzle the ingenuity of the ripest legal scholars to define them with absolute preci- sion. But when the two kinds of evidence have been weighed in the judicial balance, and one is found to be primary and another secondary, the latter cannot be received until the former has been legally accounted for. Perhaps the best solution can be reached by always in- quiring, ‘‘ which weighs the most?” The weightier is the primary, the lighter the secondary. The heaviest artil- Nature OF EVIDENCE. 13 lery should be first brought on the field. When nothing better can be had, the lighter artillery may be used. Q. What is secondary evidence ? A. Secondary evidence is such as is inferior to primary in probative force and dignity, and will not be received in proof of any fact or facts in issue except when the primary is unattainable. Where the primary has been lost, the secondary becomes the best evidence. In order to the introduction of the secondary it must be made clearly to appear that the primary cannot be had. Q. What are other reasons than those already given for excluding hearsay evidence ? A. The person whose words or writings are repeated is not before the court, and while there is always a strong moral obligation to speak the truth, the whole truth and nothing but the truth, the absolute exemption of the person whose declarations are offered from all the pains and penalties prescribed by statute against perjury and false swearing, removes one of the most powerful motives in some minds, for speaking the truth. Persons are often persuaded by the terrors of the law. The thunders of Sinai were no less powerful in eradicating from the mem- ory of the Hebrews the fleshpots of Egypt than all their enraptured visions of the promised land. But aside from the lack of the ordinary sanctions of an oath, the per- son whose statements are sought to be shown cannot be subjected to the fiery ordeal of a cross-examination, by those against whose interests his unsworn declarations are offered. A skillful cross-examination by counsel learned in the law and familiar from long observation with the quirks and sharp devices of unwilling or cor- rupt witnesses will often accomplish more toward draw- ing out the truth than the most solemn or powerful ap- peals to conscience. The presence of the judge on the bench ; the fixed and earnest gaze, and close attention of twelve jurors to catch each word as it comes from the witness; the deep interest of opposing counsel and their clients; the cloud of witnesses in the court room who 14 Law AND PRINCIPLES oF EVIDENCE. watch the progress of the trial, are no unimportant fac- tors in eliciting the truth. Q. What chief element of weakness is there in hear- say or unoriginal evidence? A. As has been said, it does not derive its probative force from the character of the witness called and sworn but depends on the veracity of the absent, unsworn wit- ness or declarant. It comes to the tribunal trying the case through uncertain and doubtful media, and the farther the original declarant is removed from the last one who speaks, the greater the doubt and caution with which it should be received. Q. Give an illustration ? A. “D” affirms that he was actually present when “HK” forged the name of ‘‘F” toa note, and that he saw him sign it. He casually imparts the information to **O,” giving all the details of the transaction. ‘‘C,” in turn, communicates the information to ‘‘B,” and ‘‘B” to “A,” and ‘‘A” is brought forward as a witness and is offered to prove what ‘‘ B” told him as to the connec- tion of “EK” with the forgery. Now, ‘‘C” is more likely to remember what was said by “‘ D,”’ and his evi- dence, other things being equal, would be entitled to more weight than that of ‘‘B” or ‘‘A.” As the story passes down the line, it generally gains in volume but loses in intrinsic value as evidence. ‘‘A” may be a truthful person, and so may ‘‘C,” but ‘‘B” may be wholly unworthy of belief. Thus the chain is broken. Where many intermediate links are introduced to prove the forgery, the liability to error is greater and the chain is weakened. In the example given, ‘‘B” is the only witness who can be introduced to prove the forgery. An appropriate illustration of this principle may be had in the story of the ‘‘ Three Black Crows.” In all ages and among all civilized and Christian communities an oath has been considered the touchstone of truth. It is a solemn and powerful appeal to the conscience of the wit- ness. It is an appeal to God, by laying the hand on NatTuRE OF EVIDENCE. 15 His Holy Word, to bear witness to the truth of what the person is about to utter. Even in the patriarchal gov- ernments the administration of oaths was of frequent occurrence. Joseph could invoke no surer pledge from his brethren that his bones would repose in the land of his childhood than the obligation of an oath. ‘‘ He that sweareth to his own hurt and changeth not,” is among the highest tests of true moral grandeur. ‘‘ And the men of Israel were disturbed that day; for Saul had sworn the people, saying: Cursed be the man that eateth any food until evening, that I may be avenged of mine enemies. So none of the people tasted any food. And all they of the people came to a certain wood and there was honey on the ground. And when the people had come into the wood behold the honey dropped, but no man put his hand to his mouth; for the people had feared the oath. But Jonathan heard not when his father had charged the people with the oath. Wherefore he put forth the end of his rod that was in his hand and dipped it in the honeycomb and put his hand to his mouth. ‘And Saul said draw ye near thither all the chiefs of the people and know and see whetein this sin hath been to- day; for as the Lord liveth, which saveth Israel, though it be in Jonathan, my son, he shall surely die. But there was not a man among all the people that answered him. Then said he unto all Israel: Be ye on one side and Jon- athan and I on the other. And the people said unto Saul: Do what seemeth good unto thee. Therefore Saul said unto the Lord God of Israel: Give a perfect lot. And Saul and Jonathan were taken but the people escaped. And Saul said: Cast lots between me and my son Jona- than. And Jonathan was taken. Then Saul said to Jonathan: Tell me what thou hast done. And Jonathan told him and said: I did but taste a little honey with the end of the rod that was in my hand, and Lo! I must die.” It is to the praise of our poor, fallen race that some men will speak the truth whether under the obli- gation of an oath or not; but the experience of mankind demonstrates that the application of the religious test is 16 Law AND PRINCIPLES OF EVIDENCE. the best security against deliberate perjury. The admis- sion of hearsay evidence excludes this test. Q. Are there not still other reasons why hearsay evi- dence should be excluded ? A. There are. The grossest frauds might be practiced by permitting a witness to testify to what he has heard others say. The jury has no opportunity to look into the motives or character of the person or persons whose sayings are offered. To go into these collateral questions would multiply the issues and protract the investigation to unreasonable length. A thousand persons may have expressed opinions as to the existence or non-existence of facts. If all the sayings of half the members of a community are to be repeated to the jury, and in turn, contradicted or explained, and an investigation had as to the character of each, a trial would never end, and the great object of judicial investigation would be de- feated. In the next place, it would deny to the litigant the right to be confronted by the witnesses against him. In criminal trials this sacred right is secured by Consti- tutional enactments, and deeply imbedded in the criminal. jurisprudence of all civilized countries. Q. Will the mere fact that hearsay evidence of a fact is all that is attainable authorize its admission ? A. It will not. It is a fundamental principle of the law of evidence that hearsay will not be received, unless it falls within some of the exceptions to be presently noted. Q. Where one makes a declaration on oath in a judicial investigation, can such oath be used as evidence in another investigation where the parties are different ? A. It cannot, as against a stranger. It would be clearly admissible against the party making such declara- tion under oath. Q. When one subscribes as a witness to a will or deed, will his declarations be received to impair the force of such attestation after the death of the witness ? NaAtuRE OF EVIDENCE. 17 A. They will not. If such evidence could be received no rights of parties, however solemnly secured by written instruments, would be safe. If the declarations of attesting witnesses made long after the execution of the instrument to persons having no interest in the subject- matter could be shown, it would tend to seriously impair all written securities. Q. What distinction is made between what is mere hearsay and what is original evidence ? A. If the evidence offered be original it should be received. The writings or sayings of a person are not always hearsay. The real question at issue is often whether certain things were done, or whether certain declarations were made by a party. The truth of what was said or written is not in issue, but simply the fact whether it was said or written. In such cases, the evi- dence will be received. Persons often do things on the information of others. A witness may testify that he did a certain thing, went to a certain place, or made certain investigations on the information, or at the re- quest of another, and state what was said. Q. On what ground is evidence of general reputation of pedigree and the like received ? A. On the ground that such evidence is in the nature of original evidence. Q. Will the sayings of a person while sick or wounded as to his sufferings be received ? A. They will. Whenever it becomes necessary to show bodily or mental feelings or sufferings, the declarations of the party at the time are received in evidence, as they are in the nature of res geste. .Q. If it be shown that hearsay is the only attainable evidence of the truth of certain facts, would such con- tingency authorize its admission ? A. It would not. Q. What is the general, well-established rule on the subject of extrajudicial statements ? 3 ‘ Nature oF EVIDENCE. 19 A. They will. What declarations will be received in evidence as part of the res geste is often a question of great difficulty, and has given occasion to much learned disputation. Asa general rule whatever is said or done at the very time of the transaction, or so soon thereafter as to free the words or acts from any suspicion of device or afterthought may be considered as part of the res ges- tee. If the words were inspired by the occasion, were spontaneous and free from device, they are admissible. So, in many cases, the self disserving statements of de- ceased persons will be received, or when the statements were made in the course of business and at the very time the business was transacted, or so recently thereafter as to constitute part of the res geste. See, Page v. Parker, 40 N. H. 47; Stockwell v. Blamey, 129 Mass. 312; Clews v. Kehr, 90 N. Y. 633; Forrester v. State, 46 Md. 154; Simpkins v. Smith, 94 Ind. 470; R. Co. v. Boffinger, 107 Ill. 199; State v. Henke, 58 Iowa, 457; State v. Haynes, 71 N. C. 79; Berry v. Osborne, 15 Ga. 194; Chastain v. Robinson, 30 id. 55; Owens v. State, 74 Ala. 401; Melius v. Houston, 41 Miss. 59; Fougue v. Burgess, 71 Mo. 389; Stringfellow v. Montgomery, 57 Tex. 349; Barnheimer v. Baldwin, 42 Cal. 27; Flynn v. Ins. Co., 17 La. Ann. 135. Q. What is the rule as to business entries ? A. Where they are made in the course of business and the person who made them is dead, they are generally admissible. Reynolds v. Mammy, 15 Md. 523. In some of the states where the person who made the entries is beyond the state, it has the same effect as if he were dead. Altery. Berghans, 8 Watts, 77; Johnson v. Porter, 42 Conn. 234. Q. Where the person who makes the entries will swear that he made them in due course of business and at the time the business was transacted, but does not re- member the facts, will they be received ? A. They will in most of the American States. Spann v. Baltzell, 1 Fla. 302, 321. 18 Law AND PRINCIPLES OF EVIDENCE. A. The rule is that such statements should be rigidly excluded. Unquestionably there will occur many and striking instances in which its enforcement works appar- ent hardship, but the innumerable mischiefs which follow any general relaxation of the rule largely out- weigh exceptional cases of hardship and inconvenience. . Does the rule excluding hearsay evidence include extrajudicial admissions made by the parties ? A. It does not. Admissions, when clearly shown to have been voluntarily made, and to be relevant to the issues involved in the trial of cases, are constantly received by the courts. The most important rights of parties may be seriously affected by their admissions. Caution should always be taken to require the clearest proof that the admission was made voluntarily, and to receive any explanatory statements of the party making the admissions. The rule seems to be founded on the presumption that a party who is conscious of his rights will not foolishly prejudice the same by making admis- sions which are untrue. Q. What is the rule when the evidence offered falls within the rule of res inter alios acta ? A. The rule is that what is said or done by persons, not parties, to the suit and out of the presence and with- out the express or implied acquiescence of the parties, can- not be admitted to affect or prejudice their rights. No one ought to be made to suffer on account of what others have said or done, unless, in some way, recognized by the law, he has previously authorized or subsequently sanctioned or adopted such acts or words. Any other rule would introduce an element of uncertainty in all vested rights. ‘‘By thine own words shalt thou stand or fall” is the spirit of the law. Q. Where the extrajudicial declarations are part of the res geste, made, dum fervet opus, or where they are self disserving declarations of deceased persons or such as are made in the due and regular course of business, will they be received ? 20 Law AND PRINCIPLES OF EVIDENCE. Q. When must the paper on which the entries are made be produced ? A. When the witness refreshes his memory from the paper and then can swear positively to the facts, the paper need not be produced. If he swears from the paper itself, it must be produced. Sasscer v. Farmers’ Bank, 4 Md. 418; Greenl. Ev. 484. The general rule is that the entries are not admissible during the life of the person making them, as his own evidence is highest. Nor will a mere private memorandum be received. Q. May any memorandum be used to refresh the memory whether made in the course of business or not ? A. It may. Q. Where the witness swears positively to business entries, will they be received ? A. They will. Q. Is it not well established that where a witness made a memorandum of a fact at the very time of its occur- rence and with a view to preserve it, and can swear that. the memorandum is true, he may do so although he has no distinct recollection of the fact ? A. It is so held by many of the highest courts. Ins. Co. v. Evans, 15 Md. 62; Smith’s Lead. Cases, 579; Haven v. Wendell, 11 N. H. 112. Q. What is the general rule as deduced from all the American authorities ? A. “Itis, that entries made in the regular and usual course of business are admissible in evidence after the death of the person who made them, on proof of his handwriting, and during his life, if authenticated by himself. Other private entries may be used to refresh the memory, but are not admissible in evidence.”’ Q. State some of the exceptions to the general rule excluding hearsay evidence ? A. There are certain facts whose existence may be shown by resort to general notoriety. There are matters of the very highest interest to individuals, as well as Nature OF EVIDENCE. 21 communities, which could never be fully brought to light, if the rule regarding hearsay were always rigidly enforced. Sound public policy has, therefore, dictated certain modifications of the rule and the courts will re- ceive hearsay evidence to establish the reputation of persons; to prove pedigree and other matters of like character. If this seeming infringement of the rule were not allowed in exceptional cases, the most important rights of individuals would be prejudiced and the admin- istration of justice be impaired and crippled. Q. Mention some facts which may be thus shown ? A. Questions relating to pedigree; the custom of any particular trade; the boundaries of states, counties and cities, where the question of boundary is involved; the reputation one may have in the community in which he lives; to establish whether a road is public or private; declarations to establish matters of a public, general in- terest; ancient documents coming from the proper cus- tody, fair on their face, and where possession has been consistent therewith; the declarations of persons when they are part of the res geste; entries in one’s book against his interest or business entries; business entries of clerks, or where the very question is one of hearsay; the value of articles of general merchandise; the exclama- tion of bystanders under certain circumstances; declara- tions made at the time a tort is committed by the tort feasor or the person on whom the tort is committed when in the nature of res geste ; what a person swore ona former trial when the issues are substantially the same and between the same parties; the declarations of persons who have been referred to for information when offered to bind the person so referring; declarations of persons, in order to show the motive for certain conduct. Q. In order to establish pedigree will hearsay evidence be received ? A. It will. It would often be extremely difficult, if not impossible, to establish family relationships and thus secure rights dependent on such proof if the sayings of 22 Law AND PRINCIPLES oF EVIDENCE. members of the family, long since deceased, and who were in a position to know the facts, were excluded. If such are living they should be called; but it has been held that the fact that there are living witnesses to pedigreé will not exclude the declarations of deceased relatives. On the subject of pedigree generally, see Wharton’s Ev., Pedigree, and the following citations. Jewell v. Jewell, 17 Pet. 218; Mooers v. Bunker, 29 N. H. 420; Mason v. Fuller, 45 Vt. 29; Jackson v. Browner, 18 Johns. 37; Am. Life Ins. Co. v. Rosenagle, 77 Penn. St. 507; Jones 0. Jones, 36 Md. 447; Stumpff v. Osterhage, 111 Ill. 82; Van Vickle v. Gibson, 40 Mich. 170; Carnes v. Crandall, 10 Iowa, 377. Q. It is desirable to show that George Smith is a great grandson of Joshua Smith, who lived in England in 1760, and who died in Albemarle County, Virginia, on the Ath of July, 1780? A. It may be shown that the uncles and aunts and other kindred of George, now dead, always said that George was the son of John Smith, who was the son of Robert, and Robert’s kindred always said that he was the son of Joshua, who lived in England in 1760, removed to America, and died in Albemarle County on the 4th of July, 1780. Declarations of any of the deceased kindred of George may be given in evidence to establish his rela- tionship to Joshua. Q. Can it be shown by one person what his deceased relations told him as to his ancestors ? A. It may, and it may be shown what deceased rela- tives related as having been told them by their deceased relatives. Q. Is it necessary to establish relationship by proof be- fore declarations will be received ? A. It is, and the relationship may be shown by the dec- larations of deceased persons. Q. How ought such evidence to be received ? A. It ought to be received with great caution. 1 Best Ev. § 489. ‘‘Such evidence is, from its very nature, NATURE OF EVIDENCE. 98 very much exposed to fraud and fabrication, and even assuming the declarations to be correctly reported by the medium of evidence used, many instances have shown how erroneous is the assumption that all the members of a family, especially in the inferior walks of life, are even tolerably well informed as to the particulars of its pedi- gree.’ Powell Hv. § 182, et seq. Q. Can dates of death, burial, the fact of death, the dates of marriages and births be shown by declarations ? A. They can. Scott v. Ratcliffe, 5 Pet. 81; Primm v. Stewart, 7 Tex. 178; Meier v. Paulus, 70 Wis. 170; Ins. Co. v. Rosenagle, 77 Penn. St. 507; Wise v. Wynn, 59 Miss. 588; Adams uv. Swansea, 116 Mass. 591. Q. In order to the admissibility of the declarations of deceased persons to show pedigree, must it appear that the person whose declarations are offered was related to the family ? A. It must. The declarations of any other person to prove pedigree are excluded. The reason for the exclu- sion is, that strangers are not supposed to be so familiar with family pedigrees as the members of the family. The latter would more naturally take an interest in and dis. cuss such questions among themselves than strangers. Genealogical tables and family trees are matters of peculiar interest to the members of the family. Stein v. Bow- man, 13 Pet. 209; Mooers v. Bunker, 29 N. H. 420; Tyler v. Flanders, 57 id. 618; Chapman v. Chapman, 2 Conn. 347; Armstrong v. McDonald. 10 Barb. 300; Carnes v. Randall, 10 Iowa, 377; Greenwood v. Spiller, 3 Tl. 502. Q. Can the letters of members of a family in the usual and ordinary course of correspondence, be used as decla- rations to prove pedigree ? A. The writing of deceased members of a family or their kindred are admissible for such purpose. 1 Whart. Ev. § 210; Gaines v. New Orleans, 6 Wallace, 642; Pear- son v. Pearson, 46 Cal. 609; Doe v. Pembroke, 11 East. 504; Doe v. Phelps, 9 Johns. 169; Little v. Palister, 4 Greenl. 209; Bowser v. Cravener; 56 Penn. St. 142; f 24 Law AND PRINCIPLES OF EVIDENCE. Carter v. Fishing Co., 77 id. 310; Scharff v. Keener, 64 id. 376. Q. Suppose pedigree can be shown by records in family bibles or other family records and memorials, would this fact be ground for exclusion of declarations of deceased members of the family as to relationship ? A. It would not. Hither class of evidence is admissible. Inscriptions on old tombstones may also be shown to establish relationships. All such evidence is in the nature of hearsay, but is admitted because sound policy permits its use to establish matters of pedigree. Another sound reason for the admission of traditional evidence is, that it is often the only attainable evidence, and its rigid exclusion would often work irreparable hardships. The facts sought to be established often occurred many years before any living witness was born, and if hearsay were excluded their proof would be impossible. Q. Will the declarations of the deceased wife be re- ceived to establish the relationship of her husband to other persons ? A. It is held that such declarations are admissible. Taylor Ev. § 636. Q. Will the declarations of deceased parents be receiv- ed to establish the illegitimacy of children ? A. There is much controversy on this point, but the current of judicial authority is in favor of the affirmative. Q. In cases of pedigree will hearsay on hearsay be received ? A. It will, and one may testify that he heard his father say that his father told him, that his grandfather told him that he was a first cousin of Oliver Cromwell. Q. Where birth, marriage or death is the very subject in controversy, are declarations of members of the family admissible ? A. They are not. Declarations in such cases are ad- missible to establish relationships. Taylor Ev. § 645; 1 Ph. Ev. 216 (note) 5. Nature or EVIDENCE. 25 Q. Will declarations of members of a family be received to show where their relations came from, where they married or died ? A. It is held that such declarations cannot be shown for the purpose indicated, but when it is purely a genea- logical question they are admissible. Q. In order to the admissibility of the oral declarations of deceased members of a family, or their relatives, on questions of pedigree, what ought to appear ? A. It should appear that they were made ante litem motam; for if litigation were actually pending, involving the very questions to which the declarations refer, or such litigation were seriously threatened, the declarations of persons interested in the result of the litigation ought not to be received. Q. What is the rule where entries are found in family bibles ? A. ‘‘Entries made by a parent or relative in bibles, prayer books, missals, almanacs, or indeed in any other book, or in any document or paper, stating the fact or date of the birth, marriage or death of a child or other relation, arealso received as the written declarations of the deceased persons who respectively made them.” So are inscriptions on tombs, coffin plates, mural monuments and family portraits, engravings or rings, charts of pedigree. Copies of mural inscriptions may always be shown. So family trees kept in the family and recognized as correct may be used as evidence to establish pedigree. Q. Where a book containing the names of the family and its different branches, and handed down from gene- ration to generation, and carefully preserved and recog- nized in the family as containing a truthful history of the family, both as to the direct and collateral lines, is offered in evidence to prove relationship, will it gen- erally be received ? A. It will. Q. What people have been most careful to preserve family pedigrees ¢ 4 26 LAW AND PRINCIPLES OF EVIDENCE. A. The Jewish. Thus we find in the sacred scriptures an unbroken chain from Abraham to David, fourteen generations, and from David to the carrying away into Babylon, to the birth of our blessed Saviour, fourteen generations. Abraham begat Isaac; and Isaac begat Jacob; and Jacob begat Judas and his brethren; and Judas begat Phares and Zara of Thamar; and Phares begat EHsrom; and Esrom begat Aram; and Aram begat Aminadab; and Aminadab begat Naasson; and Naasson begat Salmon, and Salmon begat Booz of Rachab; and Booz begat Obed of Ruth; and Obed begat Jesse; and Jesse begat David the King; and David the King begat Solomon of her that had been the wife of Urias; and Solo- mon begat Roboam; and Roboam begat Abia; and Abia begat Asa; and Asa begat Josaphat; and Josaphat begat Joram; and Joram begat Ozias; and Ozias begat Joatham; and Joatham begat Achaz; and Achaz begat Ezekias; and Ezekias begat Manasses; and Manasses begat Amon; and Amon begat Josias; and Josias begat Jechonias and his brethren, about the time they were carried away to Babylon; Jechonias begat Salathiel; and Salathiel begat Zorobabel; and Zorobabel begat Abiud; and Abiud begat Eliakim; and Eliakim begat Azor; and Azor begat Sadoc; and Sadoc begat Achim; and Achim begat Ehud; and Hliud begat Eleazar; and Eleazar begat Matthan; and Matthan begat Jacob; and Jacob begat Joseph the hus- band of Mary, of whom was born Jesus, who is called Christ. . Are the declarations of one, since deceased, admit- ting his illegitimacy, admissible against persons claim- ing under him ? A. They are, but not against others. Taylor Ev. §§ 571, 578. Q. Are the facts that a child lived or did not live with certain persons as its parents, that they recognized or did not recognize the child as theirs, and of its treatment by them, admissible in cases of pedigree ? A. They are. Abb. Tr. Ev. § 33. Nature or EVIDENCE. 27 On questions of pedigree, see North Brookfield v. War- ren, 16 Gray, 174; Am. Life Ins Co. v. Rosenagle, 77 Penn. St. 507, 516; Doe v. Earl of Pembroke, 11 Hast, 504; Caujolle v. Ferrie, 23 N. Y. 90; People v. Ins. Co. 25 Wend. 208; Masons v. Fuller, 45 Vt. 29; 1 Taylor Ev. § 527; Webb v. Richardson, 42 Vt. 465; Chapman v. Chapman, 2 Conn. 350; Cuddy v. Brown, 78 Ill. 415; Union v. Plainfield, 39 Conn. 563; Abb. Tr. Ev. §§ 35, 36, and other authorities cited. Q May the declarations of husband and wife be re- ceived after death to show illegitimacy of child ? A. They may where the question of access is not involved. Taylor Ev. § 868; Abb. Tr. Ev. § 33. Q. If the person whose declarations are offered were related by blood or marriage to the family, will his declarations be received, although not related to the person whose relationship is to be established ? A. They will; but the relationship of the declarant must be shown by other evidence than the declarations. Q. May ancient deeds, wills and other documents be used where the documents contain recitals of relation- ship, the persons who made such deeds or wills being related to the family ? A. They may. Q. What is the rule as to registries of births, deaths, etc. ? A. “A registry, whether of birth, marriage, death or burial, kept pursuant to law, is competent evidence of the main fact which the law or statute directed the officer to ascertain and record.” Abb. Tr. Ev. § 48. Q. Are registers considered higher evidence than the parol declarations of members of the family ? A. They are not, unless made so by statute. Q. What is the next general exception to the rule excluding hearsay evidence. A. Hearsay evidence will be received to prove the 28 Law AND PRINCIPLES OF EVIDENCE. reputation of a person in the community in which he lives. Q. When will proof of reputation be received ? A. When the question at issue is one of character, then evidence of reputation will be received. _ Character is what a man is, while reputation is what people say he is. Q. Where the very nature of the charge preferred against a person directly involves his character for truth and honesty, will evidence be received to establish his good reputation in the community in which he lives ? A. It will, He may call witnesses to show his char- acter. The testimony is generally confined to the per- son’s general reputation. As previously indicated, this is made up of what the people say about him, whether it be true or false. It is not allowable to show isolated, honorable or dishonorable acts. A thief or perjurer may do good deeds and a good man may sometimes do evil deeds. The question is, what is the person’s general reputation? The reputation shown should have some relevancy to the nature of the charge brought. In crim- inal cases, where the defendant, in order to show the im- possibility of his guilt, introduces evidence to show his good character, the state may bring evidence of general bad character. Where a witness, brought to impeach character, testifies that the reputation of the person is bad, he may be asked as to the source of his information. Q. May bad character also be shown in cases of libel or slander, under a plea of justification ? A. It may, either wholly to defeat the claim for dam- ages or in mitigation. It is a general rule that the plain- tiff cannot give evidence of good character in aggrava- tion of damages. The law always presumes good char- acter, and the courts will not hear evidence to establish it, until, in some way, impeached. Q. May the character of a witness for veracity be im- peached by showing his general reputation ? Nature OF EVIDENCE. 29 A. It may. For this purpose witnesses may be called to show that they know the general reputation the person bears in his community ; that his reputation is bad and from that reputation they would not believe him on his oath. The impeaching witnesses may never have seen the person; he may be an utter stranger; yet, if they have heard his character discussed, they may testify. The opinion entertained by them is made up, not of what they know, but of what they have heard. Here, again, the testimony should be confined to general reputation and not to particular acts. The proof is not confined to his reputation for veracity, but his whole character may be shown. Witnesses may be asked on cross-examina- tion what they have heard others say. The sources of their information may be sifted. ‘Q. Where the general reputation of a witness is at- tacked, may it be sustained by showing that his reputa- tion is good ? A. It may. The party who called the impeached wit- ness may also attack the character of the impeaching witness, or show their hostile feelings and fully sift them, as to their reasons for not believing the impeached witness on oath. Q. May the bad character of a witness for any particu- lar thing be shown in order to attack his veracity ? A. It cannot. It cannot be shown, for instance, that a witness is a prostitute. 1 Whart. Ev. § 562, (note); Dimick v. Downes, 82 IIL. 570; Ayres v. Duprey, 27 Tex. 593 ; Spencer v. Robins, 106 Ind. 580; Nugent v. State, 18 Ala. 521; State v. Morse, 67 Me. 428; Smith v. State, 58 Miss. 867. Moral character may be shown. State v. Breeden, 58 Mo. 567; Major v. State, 29 Ark. 112; Peo- ple v. Beek, 58 Cal. 212. There is conflict in the authori- ties, however. 1 Green]. Ev. 54, and other authorities cited by 1 Whart. Ev.§§ 562. Q. To what time should the evidence of reputation be confined ? A. There is no positive rule, but proof of bad reputa- 30 Law AND PRINCIPLES OF EVIDENCE. tion at a period long anterior to the trial ought not to be received. Q. Can a witness be asked the reputation of a person in a community in which he does not live ? A. He cannot. Campbell v. State, 23 Ala. 44. Q. Where one is sent into a community to ascertain the character of a witness, can he testify to reputation ? A. He cannot. Q. What is meant by reputation in the community ? A. It refers to the community at large, and not to two or three persons. On the subject of impeachment gen- erally, see 1 Whart. Ev. § 565, and authorities cited in note; Sloan v. Edwards, 61 Md. 89; Whart. Cr. Ev. § 58; Lenox v. Fuller, 39 Mich. 268; Childs v. State, 55 Ala. 28; State v. Grate, 68 Mo. 22; Dare v. State, 22 Ala. 23; Ward v. State, 28 id. 53; Lyman v. Phila- delphia, 56 Penn. St. 488; Knight v. House, 29 Md. 194; People v. Tyler, 35 Cal. 553 ; Stokes v. State, 18 Ga. 17; Keator v. People, 32 Mich. 484; Taylor v. Smith, 16 Ga.7 ; Cox v. Pruitt, 25 Ind. 90; Gray v. St. John, 35 Ill. 229. Q. May an impeaching witness be asked as to his feel- ings toward the witness attacked ? A. He may, but the reasons cannot be gone into for this would raise collateral issues. State v. Glynn, 51 Vt. 577; Stone v. Tupper, 58 id. 409; Meltzer v. Doll, 91 N. Y. 365; Batdorf v. Bank, 61 Penn. St. 183; Cotton v. Vanderrolgen, 87 Ind. 36; State v. Montgomery, 28 Mo. 594. Q. May quarrels be shown between the impeached and impeaching witness ? A. They may, but not the details. Q. May a conviction of an infamous offense be shown to impeach the witness ? A. It may. Matter of Real, 55 Barb. 186; Donahue wv. People, 56 N. J. 208 ; State v. Kelsoe, 76 Mo. 505; Glenn v. Clare, 42 Ind. 62; Jefferson R. Co. v. Riley, 39 Ind. 368 ; Johnson v. State, 48 Ga. 116; 1 Whart. Ev. § 567. NATURE OF EVIDENCE. 31 Q. Where a record is introduced to show conviction, may the witness show his innocence? A. It has been held that he cannot, but that he may show his reputation to be good. But see Sims v. Sims, 75 N. Y. 467; Wolkoff v. Tefft, 12 N. Y. Supp. 464. Q. May the witness be impeached by showing that he has made prior contradictory statements ? A. He may. In order to this, hig attention should be particularly called to the time, place and circumstances under which such statements were made, and the person to whom they were made, and he should then be asked if he made them. Q. Can the witness be sustained by showing that on other occasions he made statements similar to those he’ makes on the stand ? A. He cannot. See authorities cited in 1 Whart. on Ev. § 570 (note); State v. Kingsbury, 58 Me. 238; Judd v. Brentwood, 46 N. H. 430; Smith v. Stickney, 17 Barb. 489; Stamper v. Griffin, 12 Ga. 450; Nichols v. Stewart, 20 Ala. 358; Chapman v. Blakeman, 31 Kans. 684; Mc- Aleer v. Horsley, 35 Md. 439. See also, 2 Phil. Ev. 973; 1 Stark. Ev. 147;1 Greenl. Ev. 469; Ellicott v. Pearl, 10 Pet. 412. Q. May evidence of reputation be received to prove marriage ? A. It may be shown that the parties treated and acted towards each other as husband and wife; that he intro- duced her as his wife and she introduced him as her hus- band; that he paid her board bills and that they attended social calls together, and the general reputation in the community that they were husband and wife will be received. Q. In suits by the husband for damages for adultery with his wife, may it be shown by reputation on what terms they lived together ? A. It may, and for this purpose letters between them may be introduced. This may be shown in mitigation of damages. 82 Law AND PRINCIPLES oF EVIDENCE. Q. What is another general exception to the rule ex- cluding hearsay evidence ? A. Matters of public, general interest may be shown by reputation. The reason for the rule rests on the ground that such matters are hardly ever susceptible of direct and positive proof. They are questions in which com- munities generally are reasonably supposed to have been interested, and which are supposed to have been much talked of at the time of the occurrence by the people having such interest. It is not likely that such matters would be misunderstood or wilfully misrepresented by persons who could have no motives todo so. Accord- ingly, what persons, long since dead, generally said about matters of public, general interest, when such declarations were made ante litem, will be received. Thus, the boun- daries of counties, the corporate limits of a city, the old bed of a river which formed the boundary between coun- ties, and the like, may be shown by the declarations of persons now deceased and who were in a position to know the facts. Best Ev. § 497; Ellicott v. Pearl, 10 Pet. 412; Shutte v. Thompson, 15 Wall. 151; Morse v. Emery, 49 N. H. 239; McCausland v. Fleming, 63 Penn. St. 38). Moul v. Hartman, 104 id. 43; Cline v. Catron, 22 Gratt. 878; Shook v. Pate, 50 Ala. 91; Evans v. Hurt, 34 Tex. 111; Cox v. State, 41 id. 1. Q. In cases of prescription and custom where the per- sons whose declarations are offered are shown to have. possessed peculiar opportunities for knowing the facts, to which their declarations relate, are such declarations. admissible ? A. When they have been solemnly and deliberately made and the persons who made them were, at the time, under no temptation to misrepresent the facts, the declara- tions are not subject to the usual objections to hearsay evidence and may be received. It should appear that such persons were not only in a position to know the facts, and that the declarations were made ante litem motam, but that the declarations related to matters of a public, general interest, at the time, and not a mere: Nature or Evinence. 33 private interest. 1 Whart. Ev. §§ 185, 186; 1 Greenl. Ev. 145; Powell Ev. 151; Smith v. Pursell, 37 Tex. 247; McCausland v. Fleming, 63 Penn. St. 36; Ralston v. Mil- ler, 3 Va. 44; Adams v. Stanyan, 24 N. H. 405; Wendell v. Abbott, 45 id. 349. Q. Can matters of mere private interest, and in which the public generally had no special interest, be so proven ? A. They cannot. See authorities cited above. Q. Can such declarations be received to establish the boundaries of private estates ? A. In many of the states the courts receive declarations of deceased persons to show the boundaries of tracts of land; to show where certain lots of land cornered, or to establish landmarks. Such declarations must have been made ante litem motam. There is, however, much con- flict in the authorities on this point. ‘‘ Evidence of repu- tation on general points, is receivable, because, all man- kind being interested therein, it is natural to suppose that they may be conversant with the subjects and that they should discourse together about them, having all the same means of information. But how can this apply to private titles, either with regard to particular customs or private prescriptions. How is it possible for strangers to know anything of what concerns only titles ?” Q. May reputation be shown in order to defeat as well as to establish a public right? A. It may. Accordingly the declarations of deceased persons concerning matters of public, general interest, going to show that the public claimed no interest or right in a ferry or in a road, or to establish the fact that a road was not public, will be received. In this way it may be shown also, that the public asserted no right to a landing, and that it was a private landing. Q. Will maps showing the boundaries of counties, cities, etc., when the same were generally recognized by the public as correct, be received as evidence ? A. They will. The map, being in the nature of an ancient document and free from any suspicion of unfair- 5 34 Law AND PRINCIPLES OF EVIDENCE. ness, and made ante litem motam, when there was no possible inducement to misstate the facts, is proper evi- dence to be submitted to establish boundaries. Q. What is another exception to the general rule ex- cluding hearsay evidence ? A. The evidence of a deceased witness delivered on a former trial, when offered in a subsequent trial between substantially the same parties, and which can be substan- tially reproduced by any one who heard the testimony, or by one who took notes of the evidence delivered on the former trial will be received. ‘‘ What a witness, since deceased, has sworn on a trial between the same parties, may be given in evidence, either from the judges notes or from notes that have been taken by any other person who will swear to their accuracy ; or the former evidence may be proven by any person who will swear from his memory to its having been given.’ 1 Whart. Ev. § 177; Whart. Cr. Ev. § 227; Earl v. Tupper, 45 Vt. 275; Lane v. Brainerd, 30 Conn. 565; Jackson 2. Lamson, 15 Johns. 539; Bradley v. Merrick, 91 N. Y. 293; Jones v. Wood, 16 Penn. 8t. 25; Atlantic R. Co. v. Venable, 67 Ga. 697; Woods v. State, 59 id. 738; Clealand v. Huey, 18 Ala. 343; Goodlett v. Kelly, 74 id. 218; State v. Cook, 23 La. Ann. 447; Jaccard v. Ander- son, 37 Mo. 91; State v. Able, 65 id. 357; Poorman v. Miller, 44 Cal. 269; People v. Devine, 46 id. 45. Q. Where the witness who testified on the former trial becomes insane, or the party against whom he tes- tified has corruptly kept him from court, can his testi- mony, delivered on a former trial, be reproduced ? A. Itissoheld. Marler v. State, 67 Ala. 55; Pratt v. Patterson, 81 Penn. St. 114; Speyerer v. Bennett, 79 id. 445; Reed v. Reed, 78 id. 415. Q. Does this rule apply to criminal cases ? A. It does, and it may be shown what a deceased wit- ness swore on a previous trial, or what a witness, since deceased, swore on a committing trial. Whart. Cr. Ev. § 227; State v. Witham, 42 Me. 531; Brown v. Com., 73 NATURE OF HVIDENCE. 35 Penn. St. 321; Summons v. State, 5 Ohio St. 325; State v. King, 86 N. C. 603. Q. What does the rule really require ? A. That the case be one involving the same issues and substantially between the same parties. Q. Suppose the court which tried the case had no jur- isdiction of the person or subject-matter ? A. Then the evidence cannot be reproduced. Melvin v. Whiting, 7 Pick. 79; King v. Eriswell, 3 T. R. 721. Q. What other prerequisites are there before such evidence can be reproduced ? A. It must be shown that the witness examined on the previous trial is dead or beyond the jurisdiction of the court. Q. Suppose that both plaintiff and defendant die and new parties are made, would the evidence delivered on the former trial be admissible ? A. It would. So long as the parties are the same with only formal changes and the issues are substantially the same, the evidence will be received. Powell Ev. § 217; McLain v. Com., 99 Penn. St. 86; State v. McNeil, 33 La. Ann. 1332; Whart. Cr. Ev. § 230. Q. When a witness who testified on a former trial is hopelessly sick and will not be able to attend any future trial of a case, will the courts permit his former testi- mony to be reproduced ? A. It has been often held that such is a sufficient ground for its admission. Q. Where notes have been taken of the witnesses’ tes- timony, may they be used to refresh the memory ? A. They may. Buie v. Carver, 73 N. C. 264; Gilder- sleeve v. Caraway, 10 Ala. 260; Harrison v. Charlton, 42 Towa, 578; Fell v. R. Co., 43 id. 177; Solomon v. Jones, 34 Kan. 444. Q. Is it necessary that the exact words of the deceased witness be reproduced ? A. Itis not. If the substance of what he said is re- 36 Law AND PRINCIPLES OF EVIDENCE. produced, it is sufficient. Ruch v. Rock Island, 97 U. 8. 693; Emery v. Fowler, 39 Me. 326; Buie v. Carver, 73 N. C. 264; Clealand v. Huey, 18 Ala. 343. Q. Where the judge took notes of what the deceased witness said, may he be called to produce them ? A. He may. Q. What is a well-established rule in reference to an- cient deeds and documents when offered to show ancient possession ? A. Where the ancient deed or document is more than thirty years old, with no suspicious appearances on its. face and coming from the proper custody, possession be- ing consistent therewith, and is offered in evidence, it will be received. Taylor Ev. § 658; 1 Phil. Ev. 273; 1 Stark. Ev. 67; 1 Greenl. Ev. § 141; Best Ev. 615. Q. Must such deeds or documents come from the proper custody to authorize their admission without proof of execution ? A. They must. Documents found in a place in which, and under the care of persons with whom such papers might naturally and reasonably be expected to be found, are precisely in 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. Q. Are ancient documents admissible to show that the transactions to which they relate actually occurred ? A. They are, and are admitted partly on the ground that they are parts of the res geste of the transaction. See further as to the admissibility of ancient documents, 1 Whart. Ev. § 195, and the following authorities cited: Nowlin v. Burwell, 75 Va. 551; Bishop v. Winchester, 3 N. C. 200; Lang v. McDow, 87 Mo. 197; Bliss v. Sevier, 58 Tex. 567; Jones v. Fauchet, 61 id. 698; Hogans v. Carruth, 19 Fla. 84; Morris v. Callahan, 105 Mass. 129; Williams v. Conger, 59 Tex. 582; Whitman v. Heneberry, 73 Ill. 109; Baker v. Prewitt, 64 Ala. 551; Goodwin v. Nature or HKyIDENCE, 37 Jack, 62 Me. 414. As to what is a proper depository for such documents, see authorities cited above. Q. Are the declarations of deceased witness locating boundaries admissible ? A. They are. Q. What is the rule as to the admissibility of declara- tions made by parties, deceased, against their own pecu- niary or proprietary interest, or such declarations as are termed self disserving ? A. Such declarations are generally received. The rule in such cases seems to be founded on the very reasonable presumption, that no person, in the possession of his senses, will voluntarily and deliberately make statements derogatory to his own interests, where such statements are untrue. Rings v. Richardson, 53 Mo. 385 ; Trammell v. Hudmon, 78 Ala. 222; Foster v. Brooks, 6 Ga. 287; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Prescott v. Hayes, 43 N. H. 593; 2 Smith’s Lead. Cases, 271. Q. Does the rule apply to all written statements or en- tries as well as oral statements? A. It does, and even entries in private books made by a person against his interest will be received; as where one charges himself with having received money in pay- ment of a debt due him. Q. When entries have been made by agents against the interest of the principal will they be received ? A. They will, on clear proof being made that the agency really existed and that when the entries were made the agent was acting within the scope of his authority. Q. Will the declarations of a person, while in posses- sion of land, explanatory of the possession, be received ? A. Declarations in disparagement of title will be re- ceived against’ him and all persons claiming under him. When statements are made accompanying the act of possession, they are part of the res geste, and are held admissible simply to explain the character of the posses- 38 LAW AND PRINCIPLES OF EVIDENCE. sion, either to show that the possession was or was not bona fide. Q. What other exception is made to the rule excluding hearsay evidence ? A. It is where entries have been made in the regular course of business, and at or near the time of the act, and are free from suspicion. It is held that the entry should be a part of the transaction itself and related to it, and should not derive its credit from the truthfulness of the person making it, but from the apparent connection with the transaction itself. 1Whart. Ev. § 238; Bridge- water v. Roxbury, 54 Conn. 213; 1 Stark. § Ev. 42-3-4; Augusta v. Winsor, 19 Me. 317; Mayson v. Beazley, 27 Miss. 106; Elliott v. Dycke, 78 Ala. 150; Fisher v. Mayer, 67 N. Y. 73; Walker v. Curtis, 118 Mass. 98; Costello v. Crowell, 133 id. 352. Q. Does the fact that there is better and higher evi- dence than the entries of a deceased person exclude them when such entries are against his interest ? A. It does not. Q. When it is sought to show an account by the ad- missions of a deceased person, is it necessary to prove that he signed or authorized or adopted the account ? A. It is necessary to show that the person whose de- clarations are offered had notice. Q. What further observations may be made in refer- ence to entries made in the regular course of business or office 2 A. When the entries, as above stated, are against the interest of the person who made them, they are clearly admissible; but even where the entries are not self disserv- ing, if it appears that they were made in the regular course of business and were, in fact, cotemporaneous with the transactions themselves, they are really a part of the res geste and admissible. Such are entries made by merchants in their books, and other tradesmen. So entries made by public officers whose duty it was to NATURE OF EVIDENCE. 39 make them, in the regular course of official duty, are re- ceivable in evidence. Entries which they were not re- quired to make, which related to collateral matters, in no way connected with their business or official duty, are not admissible. Q. To render entries admissible, must it appear that the entry and the transaction were cotemporaneous ? A. It must. It is not indispensable that the entry should be made at the very moment of the transaction; for in the very nature of the case this would be out of the question; but it should appear that the entry and the transaction were so clearly connected in point of time as clearly to constitute one single transaction. Accordingly it is held that entries made the day after the transaction are receivable. Where the entry is against interest, it does not matter when it was made. Q. When several days intervene between the entry and the transaction, will it be received ? A. It will not. In such case the entry and the trans- action are independent acts, and it is not, in fact, made in the regular course of business; nor can it be said that the entries were part of the res geste. Q. Can such entries be used to prove independent mat- ters ? A. They cannot, like entries or declarations against in- terest, be so used. ‘‘ Whatever effect may be due to an entry in the course of office, reporting facts necessary to the performance of a duty, the statement of other cir- cumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circum- stances.” Q. What other prerequisite is there to the admission of entries made in the course of business ? A. “Entries made in the course of business or office cannot be admitted, unless corroborated by the circum- stances which render it probable that the facts therein recorded really occurred.” Taylor Ev. §706. The rule, however, does not apply to entries made against interest. 40 Law AND PRINCIPLES OF HVIDENCE. Q. That declarations may fall within the exception, what is the rule ? A. ‘Proof must be made that they were cotempora- neous with the facts which they narrate, and in the usual routine of business, by a person whose duty it was to make the whole of it, who was himself personally ac- quainted with the facts, who had no interest in stating untruth, and who is since dead.” Q. On what principle are declarations accompanying an act admitted ? A. They are admitted to explain motive or intention. On the subject of declarations or entries made in usual course of business, see Powell Ev. 208; Avery v. Avery, 49 Ala. 193; Powell Ev. 214, 209, 213; Bridgewater v. Roxbury, 54 Conn. 221; Poole v. Dicar, 1 N. C. 649; Cass v. Bellows, 31 N. H. 501; Walker v. Curtin, 116 Mass. 98; Livingston v. Arnoux, 56 N. Y. 518; Ray v. Castle, 79 N. C. 580. On the subject of declarations accompanying the act and constituting part of the res gestce, see the following authorities cited in 1 Whart. Ev. § 259; Corinth v. Lin- coln, 34 Me. 310; Plumer v. French, 22 N. H. 98; Ather- ton v. Tilton, 44 id. 452; Blake v. Damon, 103 Mass. 199; Parker v. Steamboat Co., 109 id. 449; Com. v. Vos- burg, 122 id. 419; Scott v. R. Co., 86 N. Y. 200; Whiton v. Snyder, 88 id. 299; Rinesmoth v. R. Co., 90 Penn. St. 202; Robinson v. State, 51 Ind. 14; Joyce v. Com., 78 Va. 287; McLeod v. Ginther, 80 Ky. 399; Paul v. Berry, 78 Ill. 158; Caldwell v. Evans, 85 id. 88; Baird v. Jackson, 98 id. 78; McConnell v. Hannah, 96 Ind. 109; People v. Simpson, 48 Mich. 474; Sweet v. Wright, 57 Iowa, 510; Prideaux v. Mineral Point, 48 Wis. 513: State v. Rawles, 65 N. C. 334; Printup v. Mitchell, 17 Ga. 558; Clayton v. Tucker, 20 id. 452; Southwest R. Co. v. Rowan, 43 id. 411; Stiles v. State, 57 id. 183; Flanders v. Maynard, 58 id. 56; Griffin v. Cleghorn, 63 id. 384; Cox v. State, 64 id. 374; Brady v. Parker, 67 id. 636; Mitchell v. Hannah, 71 id. 128; Bragg v. Massie, 38 Ala. NATURE OF EVIDENCE. 41 89; Bynum v. Pump Co., 63 id. 402; Cameron v. Lewis, 59 Miss. 184; State v. Walker, 78 Mo. 380; Galveston vu. Barbun, 62 Tex. 172. Q. What is the rule where one makes a memorandum at the time a fact took place ? A. “A minute in writing made at the time when the fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances which render it probable that the fact oc- curred, is admissible in evidence.” Q Where the entries are made in the usual course of business by the plaintiff’s clerk, will they be received - A. They are after his death, and when his handwrit? ing is proven. Everly v. Bradford, 4 Ala. 871. See leading case of Welsh vu. Barrett, 15 Mass. 380. In this case the court says: ‘‘What a man has said when not under oath, may not in general be given in evidence, when he is dead; because his words may be miscon- strued and misrecollected; as well as because it cannot be known that he was under any strong motive to declare the truth. But what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he had un- dertaken and he being dead, there seems to be no danger in submitting toa jury.” Q. May entries made by notaries, clerks and other per- sons in the usual course of business be received after their death ? A. They may. Ridgeley v. Johnson, 11 Barb. 597; Bland v. Warren, 65 N. C. 372. When a notary had entered in his book that due notice had been given an indorser, it was received. Q Where entries are made in a family bible, is it nec essary to show that they were made by the parents ? A. It is not. Q. What is the general rule in the United States as to the admissibility of books of account kept by merchants, 6 42 Law AND PRINCIPLES OF HVIDENCE. shopkeepers and books of other tradesman, to prove the sale and delivery of goods or work done ? A. The laws of the states differ on this subject; but as a general rule such books are admissible, on proof made that the merchant or tradesman kept correct books, and that they are his books of original entries. In some of the states it must be shown that the merchant kept no clerk, or that if he did the clerk is dead or beyond the reach of judicial process. In other words, if there be higher evidence of the fact of sale and delivery than the entries, it should be produced. Q. Does the law fix any time when the entries shall be made ? A. It does not. They should be made at or near the time of the transaction. ‘‘It should not be a register of past transactions, but a memorandum of transactions as they occur.” Q. May entries be made on a slate or board for the pur- pose of being transferred ? A. They may; but should be transferred to the per- manent repository on the same or succeeding day. Q. Would it be competent to show that the reputation of the party whose books are offered is bad, and that it is notorious in the community in which he lives andamong persons who deal with him, that he kept incorrect books ? A. It has been so held in many of the states. See Funk v. Ely, 45 Penn. St. 444. Q. Is it necessary that the person who makes the sale of the goods should make the entry ? A. Itis not. Kline v. Gundrum, 11 Penn. St. 243. Q. Are books of original entry admissible to prove cash items in an account ? A. Asa general rule they are not. In such cases it would seem that a receipt should be taken. Schall v. Hisner, 58 Ga. 190. In Georgia books of original entry are regarded as secondary evidence and are only admitted NATURE OF EVIDENCE. 43 when no better evidence can be had. Creamer v. Shan- non, 17 Ga. 65; Slade v. Nelson, 20 id. 365; Bracken v. Dillon, 64 id. 243. Q. What is the general rule as to private memoranda made by a person in order to preserve the facts of a transaction ? A. In a case reported in Lawrence v. Barker, 5 Wend. 301, a witness was called to prove a conversation. He stated: ‘‘That he was present at such conversation and produced a memorandum in his own handwriting, made at the time, and which he said he had no doubt contained a true account of what took place, but that he had no re- collection of the facts, independent of the paper. The judge refused to allow the paper to be read or the wit. ness to state its contents ; but told him he might read it to refresh his recollection. The witness said he had read it, but could only recollect that the parties were together in his presence, conversing on the subject; that he had no doubt that he put down precisely what was said; that he made the memorandum at the moment, but had no recollection of the facts, independent of the paper.” The judge would not allow the witness to state the contents of the paper or the paper to be read in evidence to the jury. The ruleis different on this subject in the different states. In some of the courts the memorandum would be submitted tothe jury, when the witness swore only from the memorandum and not from memory refreshed by the memorandum. Q. May not declarations be admitted for some purposes and excluded for others ? A. They may. Each case must be determined by the facts. When declarations are admitted for a particular purpose they should be restricted to the object for which they are admitted. Q. May not the exclamations of bystanders, under certain circumstances, when the same are instinctive and flow naturally from the occasion which excites them, be received in evidence ? 44 LAw AND PRINCIPLES OF HVIDENCE. A. They may, and declarations made at the time a tort is committed, when they form part of the res geste, are admissible. The most familiar illustration of the rule which admits exclamations of bystanders is furnished in the trial of George Gordon, so often cited in the books. Jn that case the outcries of the mob that followed and took part with him in the criminal enterprise were re- ceived to establish the criminal designs. It is held also that when one ‘‘changes his residence, or domicile, or is on a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself, or does or suffers any other act, material to be understood, the declaration made at the time of the transaction and expressive of its character, motive or object, are regarded as verbal acts indicating a present purpose and intention, and are therefore admissible.”’ Q. May the declarations of a person, although self serv- ing, when they constitute a part of the res geste, be re- ceived in evidence ? A. They may, but great caution should be observed in the admission of such declarations, and when there is the slightest evidence of concoction, they should be excluded. Q. Where the acts of one are shown to have been part of the res geste must such acts, in order to be admitted, be relevant to the issue ? A They must. See Taylor Ev. § 587. ‘‘The prin- cipal points of attention are, whether the circumstances and declarations offered in proof were so connected with the main fact under consideration as to illustrate its character, to further its object, or to form, in conjunction with it, one continuous transaction.’’ Taylor Ev. § 588. Q. Under what circumstances are the declarations of conspirators received in evidence against other conspir- ators ? A. When the conspiracy has been established by in- dependent evidence, then the declarations of the co-con- spirators, pending and in furtherance of the criminal project, are admissible. Nature or EVIDENCE. 45 On what constitutes the res geste of a transaction, see, Taylor v. R. Co., 88 Mo. 387; Bangor v. Brunswick, 27 Me. 351; Stone v. Segur, 11 Allen, 568; Rowell ». Lowell, 11 Gray, 420; Smith v. Betty, 11 Gratt. 752; State v. Umfield, 76 Mo. 404; Greenl. Ev., title, Res geste; Wharton’s Ev. Res geste. When there was time for concoction, declarations not admissible as part of the res geste. State v. Miller, 53 Iowa, 84; Stanford v. Ellithorp, 95 N. Y. 48; Vanneter v. Crossman, 42 Mich. 465; Mutcha v. Pierce, 49 Wis. 231; State v. Pomeroy, 25 Kan. 349; Wilson v. Sherlock, 36 Me. 295; Battler v. Batchelder, 39 Me. 19; Banfield v. Parker, 36 N. H. 353; Heine v. Com., 91 Penn. St. 145; Pittsburgh R. Co. v. Wright, 80 Ind. 682; Rutland v. Hathorn, 36 Ga. 380; Hart v. Powell, 18 id. 635; Hall v. State, 40 Ala. 698; Brand v. Abbott, 42 id. 499; Osborn v. Osborn, 33 Kan. 257; People v. Ehring, 65 Cal. 135, and other authorities cited in Wharton’s Law of Evidence. Q. Can exclamations of one to his nurse or physician at the time of the injury, be received in evidence to show pain and symptom ? A. They can. Declarations to show physical pain and mental anguish, made to the attending physician, may be given in evidence at any time to prove the pain, but when used to show how the injury occurred, they are confined to the time of the injury. Squires v. Chilli- cothe, 89 Mo. 227; Towle v. Blake, 48 N. H. 92; Earl v. Tupper, 45 Vt. 275; Fay v. Harlan, 128 Mass. 245; Louis- ville R. Co. v. Falvey, 104 Ind. 409; Johnson v. McKee, 27 Mich. 471; Illinois R. Co. v. Sutton, 42 Ill. 488; Phillips v. Kelly, 29 Ala. 628; Harriman v. Stowe, 57 Mo. 98. Q. In prosecutions for rape, will the declarations and outcries of the woman shortly after the outrage was committed be received in evidence ? A. They will as tending to corroborate her testimony, and when death ensues as aresult of the outrage, or from other cause, her declarations will be received as independ- ent evidence. 46 Law AND PRINCIPLES OF EVIDENCE. Q. Are not many declarations which are treated as hearsay, really original evidence # A. They are. Mr. Taylor, in his work on Evidence, says: ‘There are three classes of declarations, which, though usually treated under the head cf hearsay, are, in truth, original evidence ; the first class consisting of cases where the fact that the declaration was made and not its truth or falsity, is the point in question; the second, including expressions of bodily or mental feelings, where the existence or nature of such feelings is the sub- ject of inquiry; and the third, embracing all other cases, where the declarations offered in evidence may be re- garded as part of the res geste. Q. Again, referring to the admissibility of entries made by a person against interest and now deceased, what is the general principle ? A. The general principle is stated in the dicta in the case of Higham v. Ridgway, Smith’s Lead. Cases, 1607: “Tf a person have peculiar means of knowing a fact and make a written entry of that fact, which is against his interest at the time, it is evidence of the fact as between third persons after his death. And, therefore, an entry made by a man midwife, who had delivered a woman of achild, of his having done so, and so, on a certain day, referring to his ledger, in which he made a charge for his attendance, which was marked as paid, is evi- dence on an issue as to the age of such child at the time of his afterwards suffering a recovery.” Q. What seems to be the American doctrine on the question of the admissibility of entries against in- terest ? A. It seems to be the settled doctrine that ‘‘ all entries made in the regular course of business, private or public, are admissible though not against interest. And though the circumstance that an entry in the regular course of business is against interest, will undoubtly add to its credibility, yet it cannot be considered as settled in our law, that the mere circumstance of an entry or declara- Nature OF EVIDENCE. 47 tion, being against a person’s interest, renders it evidence of the fact between third persons, after his death.” Q. May not witness refer to statements of third per- sons as introductory to or explanatory of his own testi. mony ? A. He may. Phil. Ev. § 562, ef seq. Q. Can a witness testify to his own unsworn state- ment ? A. He cannot. It is clearly obnoxious to the objection of being hearsay. Q. Are declarations in articulo mortis admissible t A. They are. But it must appear that they were made in view of death and when all hope of recovery was gone. They are not admissible if made before the mortal blow was given ; nor will they be received if the declarant would have been incompetent to testify if living. Q. Where an employee of a railroad is sworn, and his testimony is reported fully in a subsequent trial between the same parties, can the plaintiff use the testimony of such witness, he being alive and accessible ? A. He cannot. Asa matter of course such testimony can be used to contradict the witness. Q. May the plaintiff reproduce the evidence of defend- ant’s witnesses, or the defendant the evidence of the plaintiff’s witnesses, delivered on a former trial ? A. Hither can reproduce the testimony of their own witnesses or that of the adverse party. Q. Where a witness, sworn on a previous trial, does not remember the facts as previously testified to, and such failure to remember results from mental imbecility, may his testimony on the previous trial be used ? A. It is so held. Q. Where the evidence of the deceased witness is reproduced by one who heard him testify, is the witness bound to state the exact words? 48 Law AND PRINCIPLES OF HVIDENCE. A. He is not, nor'is he required to state the evidence in the same order as stated by the deceased witness. Q. Where the reproducing witnesses can only remem- ber what the dead witness swore on his examination in chief or on his cross-examination, ought their testimony to be excluded ? A. Unquestionably; it would be a harsh rule to permit a witness to reproduce a part only of the testimony of the deceased witness, unless the other portions of the evidence can be reproduced by other witnesses. The witness by whom it is sought to establish the evidence previously delivered, should, as far as practicable, stand in the shoes of the deceased or absent witness, and repeat all he said, with all the doubts and qualifications expressed by the deceased witness. Q. In all cases where it is sought to reproduce, ought it not to appear that the opposite party had an oppor- tunity to cross-examine in the previous trial ? A. It ought. In Lathrop v. Adkisson, 87 Ga. 339, it was held that ‘‘A synopsis of the evidence of a de- ceased witness, agreed on by both parties and approved by the court, together with the stenographer’s report in full of said evidence, is admissible on a second trial of the case.’? See Price v. Lawson, 74 Md. 499; Slinger- land v. Slingerland, 46 Minn. 100; Elberfeldt v. Waite, 79 Wis. 284; Simmons v. Spratt, 26 Fla. 449; State v. O’Brien, 81 Iowa, 88; Jackson v. Crilly, 16 Colo. 103. Q. Where the loss of a written document has been fully accounted for, can its contents be shown by one who has been told what the writing contains? A. It must be shown by one who knows the contents and will swear from his knowledge. Q. What is the rule where an interpreter is employed by two persons not speaking a common language, in order to communicate with each other ? A. He is regarded as the agent of each, and he may testify to what each said, and what he says is not obnoxious to the objection of being hearsay. NATURE OF EVIDENCE. 49 Q. May the market value of any article be shown by one who derives all his information from market quota- tions, without being obnoxious on the ground that it is hearsay ? A. It may. Q. Where a witness has carefully examined a large number of books and papers containing conflicting claims between the plaintiff and defendant, with a view to state the balance, may he do so without producing the books ? A. He may, but will not be permitted to go into the contents. Q. Where a witness testifies to a conversation with another person, can the latter’s statements as to facts be regarded as original evidence ¢ A. They cannot. Q. Can a witness be asked if he knows by general reputation as to the ownership of land ? A. He cannot; the title to land cannot be proved by reputation. Q. Where it is necessary to show that one had kKnowl- edge of a particular fact, can it be shown that such fact was generally known ? A. It cannot. Q. Can it be shown that one represented himself as the agent of another in order to bind the latter as principal ? A. It cannot; such evidence is purely hearsay. Q. May the statements of one who has sustained personal injuries as to present bodily pain be received ? A. They may, but not what he says as to what he has. suffered. Q. Will a witness be allowed to testify as to what others told him about the worthlessness of an article or the reputation that an article had for worthlessness ? A. He will not. For example, a witness will not be permitted to testify what others, who had used a certain fertilizer, told him as toits worthlessness. 7 50 Law AND PRINCIPLES OF EVIDENCE. Q. Is the testimony of a father and mother as to the date of a child’s birth or death primary, although there be a record of the birth or death ? A. It is, and such testimony is admissible, and the record need not be produced. Q. Where a message is sent by wire, what is the rule as to the primariness of the message delivered ? A. It is held that when the message is delivered to the telegraph company the sender constitutes the company his agent, and the message actually delivered to the sendee is as primary as the one delivered to be sent. On this question, however, there is conflict in the authori- ties. See Brice v. Miller, 15 S. E. Rep. 272; Raridon v. R. Co., 22 N. W. Rep. 909. Q. Where books of original entry have been lost or destroyed, may the items in an account be shown by producing the ledger ? A. They may. Q. Will oral evidence be received of the rules of a railroad company, where there is a book in which such rules are printed ? A. It will not, as the book is the primary evidence. Q. Where the ownership of land is collaterally in- volved, may title be shown by parol ? A. It may. Q. Where there is a bill of sale to personal property, may the vendee testify to his ownership of the property without producing the bill of sale ? A. He may. Q. What is the rule as to diligence in procuring the primary evidence ? A. The utmost diligence must be shown before second- ary evidence will be received. Q. Where an original paper is beyond the jurisdiction of the court, may a copy be used in evidence ? A. It may. Nature oF EyIDENCE. 51 Q. Can the veracity of a witness be attacked by show- ing the character of his associates ? , A. It cannot. His moral turpitude may be shown by showing his conviction of crime involving moral turpi- tude. His veracity, however, cannot be impeached by showing his reputation for unchastity. It is also held that the bad character of a witness may be shown, al- though the impeaching witness will not swear that he would not believe him on his oath. A witness may be asked if he has not served a term in the penitentiary. State v. Ezell, 41 Tex. 35; State v. O’Brien, 81 Iowa, 93; State v. Merriman, 34 S. C. 16; State v. Probasco, 46 Kan. 310. Q. Is the court bound to disregard the testimony of an impeached witness ? A. It is not, but the jury may consider all the circum- stances and give to the testimony the weight to which it is entitled, notwithstanding the impeachment. In all cases the credibility of a witness is for the jury. Q. Where one is injured and shortly afterward makes a statement as to how the injury occurred, will such statement be received as part of the res gestae ? A. The rule is that such a statement will not be re- ceived. See on this subject, Thompson v. Peck, 115 Ind. 514; Winter v. R. Co., 74 Iowa, 448; R. Co. v. Crowder, 70 Tex. 222; New York Co. v. Rogers, 11 Colo. 6; Coul- ter v. Express Co., 56 N. Y. 590; Hemmingway v. R Co., 72 Wis. 42; R. Co. v. Ivy, 71 Tex. 409. Q. What is the rule as to the admissibility of the de- clarations of one co-conspirator to bind the others ? A. Such declarations when made dum fervet opus, pending and in pursuance of the joint criminal enter- prise, are admissible. After the fact of conspiracy has been fully established by evidence aliwnde, whatever is said or done by any one of the conspirators in further- ance of the common object of the conspiracy, may be shown as against each one of the conspirators. Under the well-established doctrine on this subject, nothing 52 Law AND PRINCIPLES OF EVIDENCE. that is said or done by any one of the conspirators, after the criminal conspiracy has ended, will be received; nor will anything said or done pending the conspiracy, but having no reference to the subject of it, be received. After the conspiracy has been established in the eye of the law, the acts and sayings of one are the acts and sayings of all. Where several have agreed to commit a crime, each thereby constitutes the other his agent, if we may so speak, to accomplish the end in view; each speaks and acts through the other and is to be held responsible for the acts of one and the acts of all in the execution of the criminal purpose. Where the conspiracy is to com- mit a particular crime, however, and one or two of the conspirators, without the knowledge or co-operation of the other conspirators, commit a different crime, the acts and declarations of the former will not be received to affect the latter unless there be some connection between the two criminal enterprises. Thus, where several con- spire to rob a bank, and pending the conspiracy, and while carrying out the common purpose, one of them steals a horse, his acts and sayings cannot affect the others; for there was no conspiracy to steal a horse. But, if while in the act of robbing the bank, one of the conspirators kill a person to avoid detection and arrest, his act will bind the others; for while there was no conspiracy to commit murder, the latter crime, under the circumstancs, was so related to the former that all who were present and aiding in the commission of the former, should be held to answer for their connection with the crime of murder. ‘It requires more than passing cognizance of a crime on the part of defendant to sustain a charge of conspiracy to commit it, and the jury must find that the prisoner did some act or made some agreement showing an intention to participate in some way in such conspir acy.” Gibson v. State, 89 Ala. 121; United States v. Lan- caster, 44 Fed. Rep. 896. ‘* Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the parties, in pursu- ance of the original concerted plan, and with reference NatTuRE OF EVIDENCE. 53 to the common object, is, in contemplation of law, the act of the whole party, and the proof of such act will be evidence against any of the others who engaged in the same conspiracy; and declarations of a co-conspirator made during the pendency of the illegal enterprise, is not only evidence against himself, but is evidence against his associates in the crime.” Q. Can a conviction be had on the uncorroborated evi- dence of a co-conspirator ? A. It cannot, and one conspirator’s evidence cannot cor- roborate another’s. Q. What is a conspiracy ? A. “A conspiracy is a combination of two or more per- sons to accomplish, by concentrated action, some criminal or unlawful purpose, or some purpose not in itself crim- inal or unlawful, by criminal or unlawful means.” ‘‘Any act done by a party to an unlawful conspiracy in further- ance of and naturally flowing from the common design, is the act of each and all of the conspirators, even though the conspirator who did the act cannot be identified, or though the defendant may have been absent, or though the act charged may not have been arranged for or was unauthorized in point of time, place, occasion or instru- ment, or was not anticipated, if the conspirators either did or ought to have anticipated the result, although they did not contemplate the means.” Q. To what extent and under what circumstances will the declarations of an agent bind the principal ? A. The general rule is, that the declarations of an agent are admissible in evidence against his principal, when they are part and parcel of the transaction in which he was engaged for the principal, and were made at the time of the transaction and in connection with it, provided he was acting within the scopeof his authority. The decla- rations, to be admissible, must be in the course of the agency. The existence of an agent’s authority is a ques- tion of fact,but what he may do and what he may not do, by virtue of such authority, is a question of law. Where 54 Law AND PRINCIPLES OF EVIDENCE. the authority of the agent is limited to special purposes, it is the duty of those who deal with him to ascertain the extent of his authority at their peril. Where one by his conduct, however, has led others to believe that a certain person is his agent, he may be estopped from denying it, and may be bound by the acts and declarations of the person holding himself out as agent. Q. Will the declarations of onein possession of personal property, that he holds it as the agent of another, be re- ceived to establish the ownership of the property ? A. They will. As a matter of course such declarations are not conclusive, but are admitted for what they are worth. Q. Are the declarations of an employee of a corpora- tion, made in connection with the business of the corpo- ration in which he is engaged, and at the time of the transaction and within the scope of his authority, ad- missible as against the corporation ? A. They are. Admissions or declarations made subse- sequently, however, are not admissible. They must con- stitute a part of the res geste of the transaction in order to their admissibility. ‘‘ Where the acts of the agent will bind the principal, there his representations, declara- tions and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting a part of the res geste ; but declarations of the agent, not made in the presence of the principal, nor while the agent was doing any act in respect to the subject-matter of the agency, would not bind the principal or his privies, and are not evidence against either.” Ewell Evans Agency, 219 (note). Further on the subject of the decla- rations of the agent, binding the principal, see Byers v. Fowler, 14 Ark. 86; Lafayette R. Co. v. Ehrnan, 30 Ind. 83; Pinnix v. McAdoo, 68 N. C. 56; Anderson v. R. Co., 54 N. Y. 334; Sweatland v. Tel. Co., 27 Iowa, 434 ; Rowell v. Klein, 44 Ind. 290; Robinson v. Walton, 58 Mo. 380; Burnham v. R. Co., 63 Me. 298; Campbell v. Hastings, 29 Ark. 512; Wilcox v. Hall, 53 Ga. 635; Nature OF EVIDENCE. 55 Wheelock v. Hardwick, 48 Vt. 19; White v. Miller, 71 N. Y. 118; Ins. Co. v. Frothingham, 122 Mass. 391; Grim- shaw v. Paul, 76 Ill. 164; Coyle v. R. Co., 11 W. Va. 94. An agent’s declarations or admissions as to bygone trans- actions will not be received. Anderson v. R. Co., 54 N. Y. 834; White v. Miller, 71 id. 118; R. Co. v. Kelly, 58 Ga. 108; R. Co. v. Lee, 60 Ill. 501; R. Co. v. Gougar, 55 id. 503; Bowen v. School Dist., 36 Mich. 149 ; Wheelock v. Hardwick, 48 Vt. 19; Howe Co. v. Souder, 58 Ga. 64. Q. Where an insurance agent makes certain representa- tions as to the capital stock of the company he represents, in direct reply to inquiries propounded to him, are his declarations admissible against the company : A. They are. Q. In all cases where it is sought to introduce the decla- rations of the agent, must not the agency be first clearly established ? A. It must. See Campbell v. Hastings, 29 Ark. 512; Peck v. Ritchey, 66 Mo. 114; Coon v. Gurley, 49 Ind. 199; Francis v. Edwards, 77 N. CO. 271; Reynolds v. Ferree, 86 Ill. 570; Barrow v. Brown, 28 La. Ann. 459, et seq. CHAPTER II WHAT FACTS MAY BE BROUGHT TO THE ATTENTION OF JURY. Q. What facts may, as a general rule, be properly brought to the attention of the jury ? A. All material and pertinent facts, from which any fair and legitimate inference may be drawn, or on which any reasonable presumption may be founded, and which illustrate the issue, or directly or indirectly tend to illus- trate it, may be communicated to the jury. It rests in the sound legal discretion of the adjudicating tribunal to determine what facts or circumstances are relevant, and whether any particular fact or facts, offered in evidence, will throw light on one or all the issues submitted by the pleadings. If facts be admitted which are wholly irrele- vant, over the objection of the party to be affected by them, and may, in any way, have misled or prejudiced the jury, the reviewing court will generally send the case back for rehearing, unless, from all the facts in evidence, the verdict of the jury was clearly right, with or without the evidence. It is, therefore, a matter of the first and highest importance, in the trial of all cases, to carefully exclude all irrelevant facts and not permit the real, sub- stantial issues to be clouded and confused by foreign matter. Q. Does the court or jury pass on the facts after they have been submitted in evidence? A. The jury. The court cannot even express or inti- mate an opinion as to what has or has not been proven, and any expression or intimation of opinion by the court on any material fact or facts in issue is held to be re- versible error. In all countries making any valid preten- sion to enlightened jurisprudence, the exclusive province of the jury to determine the facts, without intimation or suggestion from the court, is defined and guarded by the 56 Facts BrouGut To ATTENTION OF JURY. 57 fundamental law. It is the sacred and inviolable right of every person to have the facts of his case passed on by a sworn jury of his peers. The judge does not invade this province of the jury, without manifest disregard of his official duty and without incurring the risk of losing the respect of the bar, as well as litigants. For the bench to declare what has or has not been proven, and to apply the law to such a state of facts, would be the very essence of judicial tyranny. Q. Who passes on the law of the case? A. The judge. His supposed learning, legal acumen, and character for probity, are such, that he is peculiarly fitted for the discharge of this important judicial func- tion, and the law has, therefore, wisely committed to him the power and duty of pronouncing authoritatively what legal principles should control the jury in making up their verdict. Jurors have no more right to deter- mine the law for themselves than the court has to deter- mine the facts. Each is sovereign in its own province, and the jurors are sworn to render a verdict according to the law as given them in charge and the opinion they en- tertain of the evidence. The jurors, coming as they do from the common walks of life, and unaccustomed to the investigation of legal questions, may safely trust to the skill of the judge to guide them through the intricate and tangled web of the law. The juries are generally composed of persons of sound practical sense, are drawn from the vicinage and are conversant with the common affairs of life. The judge may safely trust them to ar- rive at correct conclusions touching the facts. Q. In the trial of criminal cases what is the rule? A. The jury is judge of the law as well as the fact. Q. Is it meant by this rule that the jury may disregard the instructions of the court in matters of law? A. Itis not. It is the duty of jurors to look to the court as the safe expounder of the law, and to apply such legal principles as he may give them in charge to the facts of the case. They cannot disregard the instructions 8 58 LAW AND PRINCIPLES OF EVIDENCE. of the court without violating their oaths. It is true they may differ from the court on matters of law, in the sense that they may determine what the law is; but they should differ wisely and not recklessly. When their ver- dict is for acquittal it is final, although such verdict was the result of an erroneous conception of the law. In this sense, the jury is supreme in matters of law, as well as fact. Q. Why is it sometimes necessary to resort to presump- tion or circumstantial evidence in the trial of cases? A. Because it is often impossible in the very nature of the case to obtain direct and positive evidence. If courts were always confined, in the adjudication of cases, to the consideration of facts susceptible of direct and posi- tive proof, the most important rights might be defeated and the most outrageous crimes perpetrated with abso- lute impunity. The fact sought to be established is very often imperceptible to the senses, and courts must depend on inference and presumption. Q. How may law be divided ? A. Alllaw may be divided into substantial law, by which rights, duties and liabilities are defined, and the law of procedure, by which the substantive law is ap- plied to particular cases. The law of evidence is that part of the law of procedure, which, with a view to as- certaining individual rights and liabilities in particular cases, decides, first, what facts may not be proved in such cases ; second, what sort of evidence must be given of a fact which may be proved; by whom, and in what manner the evidence must be produced, by which any fact is to be proved. Grounds of incompetency may be thus alliterated: Interested, imbeciles, idiots, insane, infants, infidels and infamous. Q. What facts may be proven ? A. The facts which may be proved are facts in issue and facts relevant to facts in issue. Facts in issue are those facts on the existence of which the right or liability - to be ascertained in the proceeding depends. Facts rela- vant to the issue are facts from the existence of which Facts Brouagut To ATTENTION OF JURY. 59 inference as to the existence of facts may be drawn. Four classes of facts which, in common life would really be re- garded as falling within this definition of relevancy are excluded from it by the laws of evidence, except in certain cases. These classes of excluded cases are, first, facts similar to but not necessarily connected with each other (resinter alios acta); secondly, the fact thata person called as a witness has asserted the existence of any fact (hear- say); thirdly, the fact that any person is of opinion that any fact exists (opinion); fourthly, the fact that a per- son’s character is such as to render conduct imputed to him provable and inferable (character). To each of these four rules there are important exceptions. Prof. C. A. Graves, Washington, Lee university. Q. What is a presumption of law as distinguished from a presumption of fact ? A. A rebuttable presumption of law differs from a pre- sumption of fact or ordinary inference as follows: A presumption of law derives its force from law; a pre- sumption of fact, from logic. A presumption of law applies to a class; a presumption of fact, to individual cases. A presumption of law makes a prima facie case in the absence of evidence to the contrary; a jury may or may not find a presumption of fact of sufficient weight on which to base a verdict. Presumptions of law are drawn by the court. Presumptions of fact are drawn by the jury. Q. In the examination of a witness, what questions may be asked, and what questions should be asked # A. Those not to be asked are such as are wholly irrele- vant both to the issue and the credit of the witness. Questions which may be asked but need not be answered are such as criminate, expose the witness to public con- tempt and ridicule or expose him to penalty or forfeiture. Questions which the witness may be forced to answer, but his answers are conclusive, i. e., cannot be contra- dicted. Those which shake his credit by injuring his character, i. e., questions tending to degrade him (such as tattoo marks, seduction, etc). There are cases, how- 60 Law AND PRINCIPLES OF EVIDENCE. ever, when the answer may be contradicted by previous contradictory statements. Q. Why should the courts permit all the facts and circumstances bearing on and illustrating the issues to go to the jury ? A. Experience has shown that one or two circumstances may mislead. Where many circumstances are shown, each one of which support the hypothesis and are in en- tire harmony with it and with each other, the probabil- ities of arriving at the exact truth of any transaction are increased. It is barely possible that many concurring circumstances should mislead. The greater number of convergent rays there are on any single point, the greater the illumination at that point. The exact place where relevancy ends and irrelevancy begins involves a most difficult question for the judicial mind; but it is well settled that every fact and circumstance tending to illus- trate the issue should be received, when offered in the manner prescribed by the law for the admissibility of evidence. Whenever the court entertains grave doubt as to the admissibility of evidence, the doubt should be re- solved by admitting it. Q. Suppose the circumstances as detailed by the wit- ness are incongruous and inconsistent ? A. This would necessarily weaken and sometimes de- stroy its probative force; but the mere fact that circum- stances are in apparent conflict ought not to exclude them from the consideration of the jury. The truth is often evolved from the very conflict, like sparks by friction from the flint. Q. Where all the circumstances agree, are perfectly consistent with each other and bear directly on the fact to be proven, what is the rule ? A. Their probative force is equal to that of direct and positive evidence. Q. When a large number of witnesses of unquestion- able veracity, and with no real or apparent motive to color or misstate the facts, detail many independent cir- Facts Broueut To ATTENTION OF JURY. 61 cumstances, and each circumstance points to the question in issue, how should they be regarded ? A. The distinction between this kind of evidence and direct or positive evidence is more specious than real. Some able writers on the laws of evidence hold that all evidence, in its last analysis, is circumstantial. What- ever the refined distinctions may be, it is certain that the confines between the two provinces is very narrow. I may not have seen ‘‘A” assault and beat ‘‘B,” I may not have heard the epithet applied by ‘‘B” to ‘‘A,” yet I may be as well satisfied of the one and the other from the circumstances as if I had seen and heard. Q. Why were juries formerly taken from the vicinage ? A. Because they were supposed to be more familiar with all the facts and circumstances of the particular case. It was supposed that they were acquainted with the parties litigant, were already familiar with the facts in dispute from having heard them discussed in the com- munity, and were, therefore, in a better position to pass intelligently on the issues than entire strangers ? Q. Was this a wise rule ? A. It was not. Jurors drawn from the vicinage too often came to the jury box with their minds full of pre- judice and thoroughly imbued with all the likes and dis- likes of the litigant parties, and were, therefore, mere partisans instead of upright and impartial triors. The truth suffered more from local prejudice and false views of the real issues brought about by the hot contentions of the neighborhood than it could possibly gain in point of certainty from the previous knowledge of the jurors of the character of the litigants and the facts of the case. Q. Is it now necessary, either in civil or criminal cases, that the jurors be drawn from the vicinage ? A. Itis not. They are generally drawn from the body of the county at large, and it is generally conceded that the farther they are removed from the influences of the litigants and their partisans the more likely is substan- tial justice to be reached. It is aptly said that the minds 62 Law AND PRINCIPLES OF EVIDENCE. of the jurors ought to be like a piece of blank paper, free from any blot or stain of prejudice, and prepared to re- ceive only the impressions made by the sworn witnesses. Q. How are the facts and circumstances to be exhibited to the jury ? A. By oral evidence and written documents. Q. What is the ground of all presumptions of fact 4 A. It is the necessary, reasonable and logical connec- tion, between facts and circumstances, the knowledge of which connection results from experience and reflection. Most of our knowledge comes from reflection and ex- perience. In the daily affairs of life we observe certain facts, and our uniform experience has been that those facts are connected with other facts and circumstances, having certain fixed relations. From one class of facts we presume the existence of others, because experience has established a connection. See Stark. Ev. § 23. Q. Is it not on this well-settled principle that the courts will receive evidence to prove the motives of a person charged with a crime in order to infer conduct or to show conduct in order to infer motives ? A. Itis. As no sane person is supposed to act without a motive, and as it often becomes indispensable to prove motive, facts may be shown from which motive may be inferred and presumed. Q. Where one has done an act, what presumption arises ? A. It is, that he who does an act is presumed to have intended all the natural, reasonable and probable conse- quences of that act, and it need not be shown that he intended them. The burden is on him to show that he did not intend the consequences, either by showing that it was an accident or that he was incapable of forming an intention, or that supervening causes have produced the result. If “A” strikes “‘B” in a vital part, with a weapon likely to produce death, and with such force as would ordinarily produce death, the presumption is, that “A” intended to kill ‘B.” Facts BrouGHt To ATTENTION OF JURY. 63 Q. Incriminal cases what conduct may afford reason. able presumption of guilt ? A. When the person charged has provided the means for committing the crime; has sought opportunity to commit it and to avoid suspicion after being charged with its commission ; has fled from the country, or con- ceals himself or resists arrest, or conceals the evidence of his guilt, or is found in the recent possession of the fruits of the crime, such conduct generates a presump- tion against him and is always admissible in evidence for this purpose. None of the circumstances, however, would raise conclusive presumptions and they are always open to explanation and rebuttal. Q. What presumption does a confession, freely and voluntarily made, afford ? A. It furnishes the strongest possible presumption of guilt. Q. How may such presumptions be overcome? A. By showing that it was made under duress or by showing that there was the slightest hope of benefit or the remotest fear of injury inducing the confession. In such cases the presumption ceases. Q. How ought presumptions arising from confessions to be received? A. With very great caution. Timid persons when churged with crime are apt to be led into the mistaken belief that confessions will help their cases; they are often induced by hope of benefit or fear of injury ; although no threat or inducement was actually offered. The law books abound in notable instances, in which persons have made confessions in order to gain unenvi- able notoriety, or as the offspring of weak and disordered intellects, or in order to shield the guilty. It is a well- established rule, therefore, that confessions alone are not sufficient to authorize a conviction. There should always be corroborating circumstances. A confession, there- fore, however solemnly and deliberately made, does not afford a conclusive presumption of guilt. 64 LAW AND PRINCIPLES OF EVIDENCE. Q. Do presumptions also arise in civil cases ? A. They do. For example, when one, holding a claim against another, allows a great length of time to inter vene, without any assertion of his right, and without securing any recognition from the debtor of his claim or right, a presumption ripens that either no valid claim ever existed, or that, if it ever existed, it has been satis- fied. So the adverse, peaceable, continuous and unin- terrupted possession of land under claim of right for a long time, without any assertion by the true owner of his right, will furnish a presumption of legal right in the person holding the adverse possession. So, a nego- tiable promissory note in the hands of the transferee is presumed to have passed for value, and when taken before maturity, is presumed to have passed without notice to the holder of any defects which would have impaired it in the hands of the original payee. So, a person who has been absent and has not been heard of in seven years, is presumed to be dead, and achild of very tender years is conclusively presumed to be dolz incapax. Q. Where evidence, which, if adduced, would eluci- date the issues, and which is peculiarly within the knowl- edge and control of one party, is withheld, and no explanation is furnished for the failure to produce it, what strong presumption arises against such party ? A. The presumption is, that if the evidence had been produced, it would have been unfavorable to the party failing to exercise proper diligence in the bringing for- ward the witness. Thus, in the case of one who has been injured in a railroad wreck on account of the negli- gence of a particular co-employee, the failure of the defendant to have such co-employee in court, or to account for the failure to have his testimony, raises a presumption that if he had been produced his evidence would have been unfavorable to the defendant. Where- ever the weaker evidence is resorted to, where the higher is attainable, a presumption unfavorable to the party failing to produce the stronger, arises. Facrs BrouGHt to ATTENTION OF JURY. 68 Q. What elementary rule of evidence is founded on the same principle ? A. Itis that which rigidly excludes secondary evidence, when primary is attainable. In the latter case the sec- ondary evidence is absolutely excluded. When, how- ever, the evidence belongs to the same class, and only differs in probative force, the weaker is not excluded because the stronger is not produced, but a presumption unfavorable to the party producing the weaker, and not sufficiently accounting for the stronger, is raised. Q. Will proof of good character be received, in order to raise a presumption favorable to innocence, where one is charged with a crime involving character ? A. It will, and on questions wholly depending on cir- cumstantial evidence for solution, and where there is doubt as to the guilt of the accused, the proof of previous good character will often resolve the doubt in favor of the defendant. Where one has always maintained a good character in his community, and has uniformly pur- sued an upright and consistent course in life, no pre- sumption unfavorable to him should be raised, without. the clearest and strongest proof. It is, therefore, of the highest importance to establish good character in cases where the evidence is not direct and positive. Q. Mention other instances in which presumption arises ? A. Presumptions may arise from the artificial course and order of human affairs and dealings whenever any such course or order exists, because, in the absence of any reason to infer the contrary, a probability arises that the usual course of dealing has been adopted. Presump: tions are founded on the course of trade, the custom of a particular trade or of a particular class of people, to prove a particular act done in the usual routine of business. Stark. Ev. 34. Q. Where a condition is once shown to exist, what pre- sumption arises ? 9 66 Law anp Principues oF EVIDENCE. A. In such case a presumption arises that the condition so proven continues until it is shown that a change took place. Thus, in case of partnership, proof that it existed at one time raises a presumption that the partnership continued to a subsequent time, and in the absence of all rebutting evidence, no proof need be offered to show a continuance of the relation. And when a person is shown to have been living at a certain time, the presumption within certain limits, is, that he is still living. Wherea person is shown to have been insane ata certain time, the presumption is that he is still insane; so proof that a per- son was insolvent a short time before a trial will furnish a presumption that his insolvency continues up to the time of trial. In short, whenever a condition is shown to have existed it will, within reasonable limitations, be presumed to continue. This principle applies to the proof of character. If one’s character is shown to have been bad a short time before the trial, the presumption is that it is still bad. If reformation has taken place, it is the duty of the person to show it. Q. How are presumptions divided ? A. Into conclusive or irrebuttable presumptions and inconclusive or rebuttable presumptions. Q. What is a conclusive presumption ? A. Aconclusive presumption is such that the courts will completely estop the person against whom it operates from denying it. He will not be heard to rebut it. Every person, for example, charged with a violation of the penal statuteg is conclusively presumed to know the law. A debt barred by the Statute of Limitations is conclu- sively presumed, either to have been satisfied or never to have existed. The act of an agent within the scope of his authority is conclusively presumed to be the act of the principal. A child under ten years of age is conclu- sively presumed to be incapable of committing crime or of consenting to sexualintercourse. The husband is con- clusively presumed to have authorized the purchase of necessaries by the wife. A married woman, in some Facts Broucut To ATTENTION OF JURY. 67 cases, is conclusively presumed to have acted under the influence and coercion of the husband. Q. What are rebuttable or inconclusive presumptions ? A. They are such as are open to denial. Most pre- sumptions are rebuttable. The law does not favor estop- pels. Accordingly, except in cases where experience has shown that it is unwise to permit certain facts to be con- tradicted, the only effect of an inconclusive presumption against a party is to impose on him the burden of over- coming it. This he may do by producing evidence to show that no such inference was proper, or he may show the existence or non-existence of the facts on which the pre- sumption was founded. In civil cases, therefore, pre- sumptions of this class only affect the burden of proof. Thus ‘‘ A,” a passenger on “‘B’s”’ railroad, sustains in- juries in a wreck. The presumption is that defendant was negligent. The only effect of the presumption is, however, to put the burden on the defendant to show that he was not negligent, or that the passenger was. Q. In the trial of cases, as a general rule, who opens and concludes ? A. The burden being generally on the plaintiff, he has the right to open and conclude. The question to be de- termined, however, in all cases, is on whom does the burden rest at the opening of the case. To him belongs the right to open and conclude, whether it be the plain- tiff or defendant. Q. What is required of the plaintiff in the opening ? A. He should always make out a prima facie case, otherwise, the court might feel constrained to entertain a motion for non-suit. It is, in most cases, a wise prac- tical rule to submit, in the opening, all the pertinent and material evidence at hand, and to establish, as far as practicable, all the facts necessary to make out the case. Among other considerations which ought to lead to this course is the fact of common experience, that first im- pressions are generally most lasting. When a jury has been placed fully in possession of all the facts of the 68 Law AND PRINCIPLES OF EVIDENCE. plaintiff’s case, the defendant may find it a difficult un- dertaking to shake its confidence. Again, the failure to introduce the material evidence by the plaintiff might possibly cut him off from subsequently offering it, by the course of the defendant. It isa good rule for the plaintiff to do his ‘‘level best” in the opening, to fortify at every point, to anticipate the defendant’s strong points, and to destroy their force before he reaches the jury. Q. Suppose the evidence, in any case, is in equipoise ? A. Then the plaintiff must fail; for it is his duty to establish, by a preponderance of the evidence, the partic- ular case made by the pleadings. Q. In criminal cases, where the state fails to establish the guilt of a defendant beyond a reasonable doubt, can the defendant be found guilty ? A. Hecannot. Here the rule of preponderance of evi- dence does not prevail. The defendant must be shown to be guilty beyond a reasonable doubt. The doubt must arise out of the evidence or for the want of evidence. But if there be a reasonable doubt, the defendant is en- titled to it and should be acquitted. The preponderance of the evidence may be against him, but this will not satisfy the requirements of the law. When the defend- ant enters on his trial he is covered, so to speak, with the legal presumption of innocence. It is the duty of the prosecution, not partially, but completely, to remove the presumption and to strip every thread of covering from the defendant. ‘‘Itis better that ninety and nine guilty persons should go unpunished than that one innocent man should suffer.” The doctrine of reasonable doubt is founded on the broad spirit of godlike equity and should never be trampled in the dust. (. Where the question is one of good faith, what pre- sumption arises ? A. In such case the presumption is that the party acted in good faith, and the burden is on him who assails it to show the lack of good faith. If, however, the transac- Facts BrouGut To ATTENTION OF JURY. 69 tion, on its very face, is fraudulent or illegal, the burden is on him who sets it up. Q. As there is generally a presumption of good faith, suppose an instrument be fairly susceptible of two con- structions, by one of which mala fides must be imputed, and by the other, bona fides ? A. The construction which is consistent with good faith should be adopted. Q. Suppose one construction would make an instru- ment illegal, and another construction would make it legai, which construction should be adopted ? A. That which makes the instrument legal; for the law will not presume that the parties to the instrument in- tended to make an illegal contract, but that their inten- tion was to make a, legal contract. Q. Where the contract is good by the lex loc? solutions, but bad by the lex loct contractus, what presumption arises ? A. That the contract was made by the parties with reference to the lex loci solutionis. Q. Where the question of insanity is involved, what is the presumption ? A. The presumption is in favor of sanity. Accord- ingly, where the plea of insanity is set up by a person charged with crime, the burden is on him to show insanity. And in an issue of devistavit vel non, where the caveator sets up the insanity of the testator at the time of the execution of the will, after the propounder has made out a prima facie case, the burden is on the caveator to show insanity. The presumption of sanity is always rebut- table. Where the insanity of the testator is shown, be- fore the execution of the will, the presumption is that it continued, and the burden is then on the propounder to establish sanity. Q. How may insanity be shown ? A. Insanity may be shown by the circumstances ; by the unreasonableness of the provisions of the will; by 70 Law AND PRINCIPLES oF EVIDENCE. the conduct of the testator before, at the time and sub- sequently to the execution of the will; by what he said as well as what he did; by the opinion of experts who knew the testator and who had opportunities to observe his conduct; by showing the insanity of his ancestors, or by any other testimony which shows a non-disposing mind at the time of the execution. Q. Is hearsay in the community in which the insane person resides admissible in evidence to prove insanity ? A. It is not. Q. Where the question is, whether one who has been injured observed due care to avoid danger, what is the usual presumption ? A. The presumption always is, that such person took every reasonable precaution to avoid the danger and to escape the injury. Q. At what age is a child presumed to have sufficient capacity to uppreciate the perils of his situation in any given case, and to avoid them ? A. No fixed rule can be established. The intelligence of the child, its opportunities for observation and its ex- perience will have much to do in the determination of the question. It is generally held, however, that a child under the age of fourteen is lacking in capacity and un- derstanding to comprehend and appreciate danger, and in cases involving the question of negligence, due care and proper precaution, the law does not exact that high degree of care of persons under the age of fourteen as it does of older persons. Up to the age of fourteen a child is presumed incapable of committing crime, and it is on this principle that, up to that age, they are not held to the same degree of care in the midst of dangers, as older persons. Q. Where a husband and wife co-operate in the com- mission of a crime, what is the presumption ? A. Except in cases of treason and felony the wife is presumed to act under the influence and coercion of the husband. Facts Broucut to ATTENTION OF JURY. 71 Q. Does the presumption that a person intended the natural, reasonable and probable consequences of his acts, apply in civil as well as criminal cases ? A. It does. For example, the deliberate publication of a calumny, which a party knows to be false, raises a conclusive presumption that the publication was malli- cious. Q. Are not conclusive presumptions made in favor of judicial proceedings ? A. They are. It is aconclusive presumption, for in- stance, that nothing is beyond the jurisdiction of a superior court, unless it is expressly declared so to be. Q. What is the presumption in favor of ancient deeds and wills ? A. There is a conclusive presumption in favor of their due execution, and it is not necessary to prove the execu- tion where they have come from the proper custody. In the case of ancient deeds, in order that this presumption may arise, they should not only come from the proper custody, but possession should he consistent with them. The same presumption exists in favor of other ancient instruments more than thirty years old. Q.. Does the law require a conclusive presumption in favor of legitimacy ? A. It does. For example, where it is shown that the husband and wife cohabited, and there is no proof of im- potency, there is a conclusive presumption of legitimacy. Access will also be presumed, but it is not a conclusive presumption. ‘‘In all cases of conclusive presumptions, the rule of law merely attaches itself to the circumstances when proven; it is not deduced from them. It is not a rule of inference from testimony, but'a rule of protection as expedient and for the general good. It does not as- sume, for example, that all landlords have good titles ; but that it will be a public inconvenience to suffer tenants to dispute them. Neither does it assume that all aver- ments and recitals in deeds and records are true; but that it will be mischievous if parties are permitted to 72 Law AND PRINCIPLES OF EVIDENCE. deny them. It does not assume that all simple contract debts, after the lapse of a certain period, have been paid, nor that every man quietly occupying land thirty years as his own has a valid title by grant ; but it deems it ex- pedient that claims opposed by such evidence as the lapse of certain periods affords should not be countenanced, and it considers that society is more benefited by a re- fusal to entertain such claims than by suffering them to be made good by proof. In fine, it does not assume the impossibility of things which are possible ; on the con- trary, it is founded not only on the possibility of their existence, but on their occasional occurrence that it im- poses its protecting prohibition.” Taylor Ev. § 108. Q. Recurring again to presumptions of law and fact, what other distinctions are to be observed ? A. Dr. Wharton, in his valuable work on Evidence, says, that one is a question of law, the other a question of logic. In Taylor’s Evidence, it is said that the judge is bound to explain whatever legal presumptions arise from the facts proved; next, the jury is bound to give full weight to the presumptions so explained; and, lastly, the court alone, without the intervention of the jury, may draw the proper legal inferences, whenever the re- quisits facts are developed in the pleadings. Q. In cases involving title to land, is proof of posses- sion presumptive proof of ownership ? A. It is, and when possession is shown for a considera- ble time, under certain conditions, the presumption be- comes conclusive. Q. Where a road or street has been continuously used by the public for a great length of time, may a presump- tion of dedication to the public by the owner of the soil arise ? A. It may. Q. Must not a presumption of fact always rest on a fact in proof ? A. It must. ‘‘ No inference of fact or of law is reli- able, if drawn from premises which are uncertain.” Facts BrouGut to ATTENTION OF JURY. 73 ‘* Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not them- selves presumed. It is on this principle that courts are daily called on to exclude evidence as too remote for the consideration of the jury. The law requires an open, visible connection between the visible and evidentiary facts, and the deductions from them, and does not per- mit a decision to be made on remote inferences. Best Ev. 95. See following among other authorities cited in Wharton’s Ev. § 1226 (note), Pennington v. Yell, 11 Ark. 212; Richmond v. Aiken, 25 Vt. 324; Tanner v. Hughes, 583 Penn. St. 289; McAleer v. McMurray, 58 id. 126; Peo- ple v. Hissing, 28 Ill. 410; Hamilton v. People, 29 Mich. 193. Q. Can presumptions of fact be based on other pre- sumptions of fact ? A. They cannot. Q. Where a presumption of law is successfully invoked, does it relieve the party relying on it from all necessity of introducing evidence ? A. It does, but where there is a presumption of fact invoked, it simply shifts the burden to the other party. Q. Where it is shown that a party signed an instru- ment, what presumption arises as to his knowledge of its contents ? A. It is presumed that he knew the contents, and the burden is on him to show the contrary. He will not be heard to say, in such circumstances, that he did not read the instrument, unless he sets up fraud. Q. Will the recent possession of stolen goods raise a presumption of guilt against the party found in posses- sion ? A. It will, and when there is no explanation of the possession the presumption may become conclusive. The possession, however, must be recent. If the article be such as does not pass readily from one person to another the presumption of guilty possession is strengthened. Where the article stolen, such as bank bills or negotiable 10 74 LAW AND PRINCIPLES OF EVIDENCE. promissory notes, does readily pass, the presumption is not so strong. When the stolen goods are found in the defendant’s possession a short time after the larceny, the presumption is strong, but becomes weaker and weaker as the time is extended, and after the lapse of a consider- able period the presumption fails. When the goods are found in a house occupied by the defendant and others, possession is not shown to be in the defendant, and there is no presumption against him. Q. Does the presumption raised from the possession of stolen goods apply to other crimes ? A. It does, as where a house is burned or a robbery committed, if a person be found in the recent possession of goods stored in the house, or on the person when rob- bed, and no account given of the possession, the law raises a presumption that such person committed the arson or robbery. Q. What is meant by.the maxim: Ommia presumuntur rite esse acta ? A. It is meant that all things are presumed to have been rightly done. For example, it is always presumed that a marriage was legally solemnized; that a deed was duly sealed and delivered, where the attestation is in proper form; that a person who has signed an instru- ment read it and understood its contents; that a bill of exchange or promissory note was founded on a valuable consideration, and that a licensee has complied with all legal requirements in order to procure a license. Q. .What presumption arises as to the knowledge of a testator of the contents of a will? A. On proof that he signed the will the law will pre- sume that he fully understood its contents, or where it is shown that the will was read over to him before he signed it, it will be presumed that he fully comprehended its provisions and approved them. It will also be pre- sumed where several sheets of paper are found together, and where the testator has signed his name at the end, that all the sheets constituted the last will and testament. Facts Broucut To ATTENTION OF JURY. 75 It is also a presumption that the testator saw the wit- nesses sign, that they signed in his presence and in the presence of each other; that all the alterations and era- sures were made after the will was executed, and that if a will was last seen in the possession of a testator and cannot be found after his death, he cancelled it. Q. What presumption arises as to the date of instru- ments ? A. As a general rule the presumption is, that an instru- ment was dated at the time it bears date. Q. Where a person has acted as an officer, and has been so recognized, what presumption is there that he has been duly appointed or elected ? A. The presumption is that he is an officer de jure, and -the burden is on the person denying it to show the con- trary. Hence, where one is prosecuted for acts done while acting in an official capacity, he will not be heard to deny that he was an officer. Q. What is the general rule where one has held him- self out as occupying certain relations ? A. The presumption is that he did not misrepresent, and when he has held himself out as a partner, or the agent or principal of another, and other persons have treated with him in reliance on his representations, he will be estopped from setting up the contrary. Q. Where a person is hired by another, and no time is specified, what is the presumption as to the time ? A. The presumption is, that the service was to con- tinue for one year. The presumption, however, will largely depend on the circumstances attending the em- ployment, as well as the nature of the employment. Q. What presumption arises in the case of common carriers entrusted with goods for transportation, where the goods have been lost or damaged ? A. The presumption is that they were lost or damaged as the result of the negligence of the carrier. He may overcome this presumption by showing that the loss was. 76 Law AND PRINCIPLES OF EVIDENCE. occasioned by the act of God or the public enemy. Or he may show that the loss or damage was occasioned by the plaintiff’s own negligence. Q. Where one is injured in a wreck while a passenger on a railroad, what is the presumption ? A. The presumption is that his injuries resulted from the negligence of the road, its agents, officers and em- ployees. This presumption does not arise, however, in favor of employees, as a general rule. Q. Where the wife voluntarily and without cause sep- arates from the husband, and pending the separation contracts debts for necessities with persons cognizant of her relations, does the presumed agency of the wife to bind the husband, which ordinarily exists, arise? A. It does not. The law will never lend its sanction or encouragement to contracts made by the wife in such circumstances. Her presumed agency to bind the husband for necessaries ceases as soon as she voluntarily leaves him without cause. Q. Where any contract in writing, or other instrument which has been made the evidence of a party’s rights, duties or obligations, is shown to have been altered, de- faced or destroyed, what is the presumption ? A. The reasonable and most logical presumption is that. the defacing or destruction of the writing was in the in- terest of the party benefited by it. The same presump- tion may be invoked where testimony has been muti- lated or tampered with; but, as a matter of course, these are always disputable presumptions. It is clearly the duty of the party offering such mutilated or altered instru- ments to explain the alterations or erasures before they can be received in evidence. Q. What is the presumption as to matrimonial consent of boys under fourteen and girls under twelve ? A. The presumption is that they are incapable of con- senting to marriage. Where, however, a marriage be- tween persons of that age is duly solemnized, and they Facts BrouGut To ATTENTION OF JURY. 17 continue to live together until the marriageable age is reached, the marriage is valid. Q. What was the common law rule as to testamentary capacity of boys under fourteen and girls under twelve ¢ A. They could make wills disposing of personal prop- erty, but not of real property. There could be no aliena- tion of real estate by them until they attained majority. Q. What is the presumption as to residence ? A. A party is presumed to reside in the last place known and recognized by him to have been his residence. Q. What is the presumption as to the foreign law in the absence of all evidence to show what it is? A. The presumption is that the foreign law is similar to our own, and it is the duty of the party who asserts the contrary to show it. Q. What are the presumptions as to marriage and the legitimacy of children ? A. The presumption is that every marriage was legal and according to the lex loct contractus, that it was duly solemnized, and that there were no legal impediments to the marriage; that the parties were competent to con- tract, and complied with all the legalrequirements. Where one has married a second time, the presumption is that his first wife is either dead or that he has procured a di- vorce; that all children born during wedlock, or within the usual period of gestation thereafter, are legitimate, and this last presumption exists no matter how soon the child or children are born after wedlock. Although adultery of the wife is shown, where access is proved, legitimacy of children is presumed. Q. What is the presumption where the woman is over fifty-five years of age? A. The presumption is that she has passed the child- bearing period. Q. What is the presumption where paper is negotiable and is shown to have passed from the hands of the payee ? 78 Law AND PRINCIPLES OF EVIDENCE. A. The presumption is that it was regularly negotiated. All indorsements and acceptances are presumed to have been for value, and it lies on the party denying the con- sideration to establish the want of it. All presumptions are favorable to a party taking negotiable paper in due course of trade and before maturity. On the other hand, presumptions are generally unfavorable to one taking negotiable paper after maturity, for the very fact that paper is past due and unpaid is sufficient to put a pru- dent person on notice that there are unsettled equities or claims between the payee and the maker. Q. Where, in civil cases, the complaint imputes a crime to the defendant, will the doctrine of preponder- ance of evidence still control the result ? A. It will. For example, when suit is brought for damages by the parent for the seduction of the daughter, on the usual count of per quod servitium amistt, or where suit is brought by the wife for the homicide of her husband, although both suits involve the proof of crimes, a preponderance of evidence either way would control a verdict, and the question of reasonable doubt does not arise. 2 Whart. Ev. § 1246; Ellis v. Buzzell, 60 Me. 209; Matthews v. Huntley, 9 N. H. 150; Weston v. Gravlin, 49 Vt. 507; Welch v. Jugenheimer, 56 Iowa, 11; Meed v. Husted, 52 Conn. 53; Rothschild v. Ins. Co., 62 Mo. 356; March v. Walker, 48 Tex. 372; Ware v. Jones, 61 Ala. 288; Blaese v. Ins. Co., 37 Wis. 31; Hall v. Barnes, 82 Ill. 228, and other citations by the same author. Q. Where the main object of the proceeding is to sub- ject a person to a criminal penalty, does Dee of evidence control? A. It does not, but the proof must establish, beyond a reasonable doubt, that defendant incurred the penalty. Q. Where, in an action on an insurance policy, to recover a loss by fire, the defendant sets up that plaintiff burned his own house, must it prove this beyond a reason- able doubt to make the defense available ? Facrs Brouagur to ATTENTION OF JURY. 79 A. On this question there is much conflict of decision, but the great weight of judicial authority is in the affirmative. Q. Is the presumption of good faith one of law or of fact 4 A. Itis held to bea rebuttable presumption of law. 2 Whart. Ev. § 1248; Best Ev. 346-7; Lake Superior Co. v. Drexel, 90 N. Y. 87; Garber v. State, 94 Ind. 219; Beesman v. Tester, 62 Tex. 431. Q. Where the relation between the parties is of a con- fidential nature, such as that of guardian and ward, trustee and cestui que trust, on whom rests the burden to establish that transactions between them are free from any undue influence resulting from such relation of confidence ? A. The burden is on the trustee or guardian. Q. In cases of suppression of evidence or tampering with witnesses, what is the nature of the inference to be drawn from such conduct ? A. Inference unfavorable tothe party guilty of such couduct, and where any instrument has been defaced or mutilated, and there are the constructions which may be placed on the instrument as it stands, one favorable and the other unfavorable to the person so tampering with the instrument, the latter will be adopted in odzum spol- zatoris. On this subject, see 2 Whart. Ev. § 1265; Luhrs v. Kelly, 67 Cal. 289; Revell v. State, 26 Ga. 275; Downing v. Plate, 90 Ill. 268; Chicago R. Co. v. Mc- Mahon, 103 id. 485; People v. Marion, 29 Mich. 81. Q. Referring again to the presumption of agency in the wife to bind the husband, what is the general rule laid down in the American authorities ? A. It is tersely stated in the case of Mauby v. Scott, Smith’s Lead. Cases, 507: ‘“‘Itis a settled principle of the law of husband and wife, that by virtue of the marital relation, and in consequence of the obligations assumed upon marriage, the husband is legally bound for the "80 Law AND PRINCIPLES OF EVIDENCE. supply of necessaries to the wife as long as she is not. guilty of adultery or elopement; but if she does thus violate her duty as a wife, his obligation and liability as husband, for her support, ceases. The fact that the hus- band and wife are living amicably together is evidence that he does provide her with necessaries, and is, there- fore, evidence that his liability to pay for necessaries, fur- nished by others, without his authority or consent, is. extinguished or suspended; but this evidence may be rebutted, and if it be shown that during co-habitation he does not supply her with either necessaries or money, he becomes liable to pay for necessaries furnished to her by others, though against his orders. If, however, a husband turns his wife out of doors, without any reason- able or just cause, or forces her to withdraw from him, without any means for her support, the law implies that. he has given her credit to supply herself with such neces- saries as are suitable and proper for her to have, such as clothing, boarding, lodging and the like.” MHultz v. Gibbs, 66 Penn. St. 360; Allen v. Aldrich, 29 N. H. 63; Morris v. Palmer, 39 id. 123; Harttman v. Tegart, 12 Kans. 177. The wife’s place is at the home, and under the protection of the husband. If she captiously abandons his domicile and goes forth into the world, he is absolved from all obligations for any debts she may contract. Bevier v. Galloway, 71 Ill. 517; Morgan v. Hughes, 20 Tex. 141; Oinson v. Heritage, 45 Ind. 73. What are necessaries is a question which must be determined by the facts of each particular case. It is said that the best way to determine it is ‘‘ to consider what a good woman would expect and a faithful husband be expected to fur- nish, if the parties were living harmoniously together.” See Breinig v. Meitzler, 23 Penn. St. 156; Girardey v. Bessman, 62 Ga. 556; Cothran v. Lee. 24 Ala. 380; Heney v. Sargent, 54 Cal. 396; St. John’s Parish v. Bronson, 40 Conn. 75; Sulter v. Mustin, 50 Ga. 242: Willey v. Beach, 115 Mass. 559; McQuillen v. Manuf. Co., 99 Penn. St. 586; as to what are and what are not necessaries. Facts Broueur To ATTENTION OF JURY. 81 Q. In the case of lands where there is not transmuta- tion of possession, what presumption arises ? A. Asa general rule, it raises a presumption of fraud subject to be rebutted by showing the circumstances of the sale and the reasons for the vendor’s retaining the possession. Unless possession accompanies and follows the sale it isa badgeof fraud. ‘‘ Fraud contemplated by the law is to be found in the falsehood of the transaction in a pretense of a sale, where there is none; in the reser- vation of an interest for the grantor, under the cover of transmission of his right to the grantee. The essential inquiry, in most cases, is whether the consideration be fair and adequate, or false and feigned. The possession being retained by the grantor, gives rise to suspicion of fraud, such as, in view of the frequent acts and contri- vances against the rights of creditors, warrants a pre- sumption against the fairness of the transaction requiring full and satisfactory explanation; a presumption which cannot be too strongly stated to the effect of throwing the whole burden of proving the genuineness and suffi- ciency of the consideration on the grantee, and in the naked case of an alleged absolute sale and possession notwithstanding retained, requiring the conclusion of fraud.’’ Twyne’s Case, Smith’s Lead. Cases, 50. The mere retention of possession does not raise a conclusive presumption of fraud. It can only affect creditors and bona fide purchasers without notice. Q. Where one does an act for the benefit of another, will the assent of the person for whose benefit the act was done be presumed ? A. As a general rule it will. It has been held, how- ever, that the payment by one of the debt of another, without his knowledge or consent, will not raise the pre- sumption of assent. Q. What is meant by the maxim : Omnia presumuntur contra spoliatorem ? A. It is meant that if a person withhold the evidence which would illustrate the issue and prove his case, every 11 82 Law AND PRINCIPLES OF EVIDENCE. possible hostile presumption will be indulged against him. Thus, where goods are sold and delivered, and there was no agreement as to the price, and the vendor fails to furnish evidence of value, the goods will be placed at the lowest price. So where a deed or other instrument has been destroyed by one having no right to destroy it, every unfavorable presumption will be indulged against the spoliator. It should be shown, however, that the instru- ment was one which the party was under obligation to preserve and which would have thrown light on the transaction. Q. Does the same presumption arise where one fails and refuses to produce a paper in court, after legal notice ? A. It does not, but only authorizes the introduction of secondary evidence. On the destruction of a paper, see Minor v. San Francisco, 9 Cal. 43; Tobin v. Shaw, 45 Me. 331; Miltenberger v. Croyle, 27 Penn. St. 170; Thompson v. Thompson, 9 Ind. 3823. On the effect of refusal to pro- duce, see Foye v. Leighton, 22 N. H. 71; Ins. Co. v. Ins. Co., 7 Wend. 31; Ins. Co. v. Evans, 9 Md. 1; Jones v. Knauss, 31 N. J. Eq. 609; Barney v. Seeley, 38 Wis. 381; Armory v. Delamire, 1 Str. 505; Thompson v. Thompson, 9 Ind. 323; Downing v. Plate, 90 Ill. 268 ; Speer v. Speer, 7 Ind. 178. Q. What presumption is there as to the jurisdiction of superior courts ? A. The presumption always is of jurisdiction except in matters expressly excepted, and then judgments are self- sustaining and conclusive. Cook v. Darling, 18 Pick. 393 ; Huntington v. Charlotte, 15 Vt. 46; Morgan v. Burnet, 18 Ohio, 535; Osgood v. Carver, 43 Conn. 28 ; Peak v. People, 71 Ill. 278; Friends v. Friends, 89 Ind. 158; Markle v. Board, 46 id. 96; Dwiggins v. Cook, 71 id. 579; Cunningham v. R. Co., 61 Mo. 33; Turrell v. Warren, 25 Minn. 9; Brockenborough v. Melton, 55 Tex. 493; Clark uv. Sawyer, 48 Cal. 133. The jurisdiction of subordinate, inferior courts will not be presumed, but Facts BrouGut To ATTENTION OF JURY. 83 must be proved to make valid their acts. On the juris- diction of inferior courts, see Board v. Markle, 46 Ind. 96; Scroggins v. State, 55 Ga. 380; R. Co., v. Swearingen, 47 Ill. 208; Cunningham v. R. Co., 61 Mo. 38; McClure v. Hill, 36 Ark. 268; Folger v. Ins. Co., 99 Mass. 267 ; Hall v. Howd, 10 Conn. 514; Newhall v. Dunlap, 14 Me. 180; Lamar v. Comrs, 21 Ala. 772. It has been held that unless it appears that an inferior court has jurisdiction, it is presumed to be without it, and unless jurisdiction is shown their judgments are coram non judice. ‘‘ From the above rule it necessarily results that the jurisdiction of inferior courts must appear affirmatively, and cannot be presumed ; that all the facts requisite to confer juris- diction must be averred and proved whenever the pro- ceedings of such tribunals are relied on, either as a de- fense or cause of action.” When jurisdiction is once shown the records of an inferior as well as superior court, import absolute verity. Q. Are the proceedings of superior courts presumed to be correct ? A. They are, and cannot be contradicted by extrinsic evidence. Cochran v. Loring, 17 Ohio, 409; Banks v. Darden, 18 Ga. 323; Parks v. Moore, 13 Vt. 188; Cole v. Conolly, 16 Ala. 271; Mervine v. Parker, 18 id. 241; Barron v. Tart, 18 Ala. 668 ; Swearingen v. Gulick, 67 Tl. 208 ; Clark v. Sawyer, 48 Cal. 133 ; Brockenborough v. Melton, 55 Tex. 493; Wenner v. Thornton, 98 Ill. 156. ‘The presumption of law is, that the judgments of all regularly constituted tribunals, whether foreign or domestic, were properly rendered in the absence of any proof to the contrary.” Even aforeign judgment is pre- sumed to have been legally rendered, and where a defense is set up, it should go to the extent of showing either that the court rendering it had no jurisdiction of the per- son or subject-matter, or that he was not served and did not have his day in court, and negative every reasonable intendment in favor of the regularity of the proceedings. Q. What is the presumption as to verdicts and the judgments of courts of competent jurisdiction ? 84 Law AND PRINCIPLES OF EVIDENCE. A. The presumption is, that the party in whose favor the verdict and judgment were rendered furnished to the court all the necessary evidence to authorize and require the judgment; that the declaration was duly filed and process attached; that a copy of the original was duly served on the defendant by the proper officers, or waived by the defendant; that the plaintiff produced evidence to sustain the allegations, or that judgment was rendered by default, or the decree taken pro confesso ; that de- fendant had his day in court, and that the judgment is legal and valid in every respect. The judgment of the court should not be assailed for light and trivial causes. Unless the defendant can clearly establish that he was not served, and did not have his day in court, or that he was misled in not making his defense by the fraud of the plaintiff, or that he had a valid defense of which he had no knowledge at the time, and could not have known by the exercise of the utmost diligence, or some other ground which knocks at the door of the very heart of equity, the judgment of the court should stand; other- wise there would be no end to litigation, and what is solemnly settled to-day, would be unsettled to-morrow. He, who seeks to go behind a judgment, should come with clean hands and a pure heart ; should show that he has not been asleep, but active, vigilant and cautious, and that without any fault, fraud or laches on his part, the judgment, as it stands, is unjust and unconscientious. Q. What presumptions apply to legislative proceedings? A. Legislative proceedings are presumed to have been regular. Every act passed is presumed to have been read three several times on three separate days, to have been passed by a majority of the votes of both houses, and to have received the approval of the governor; or if vetoed by him, to have passed both houses by a two-thirds ma- jority over the veto. Everything necessary to give the act inherent vitality is presumed to have been done. The constitutionality of an act is also presumed, and the burden is on the party who attacks it, either on the ground that the orderly and necessary legal steps were Facts Broucut To ATTENTION OF JURY. 85 not taken to pass it, or on the ground of its unconstitu- tionality to show it. Q. What presumption applies to the regular proceed- ings of a municipal corporation ? A. The same presumptions do not apply to the pro- ceedings of a municipal corporation as those which apply to legislative proceedings. In order that a presumption may be raised favorable to them as being regular, the record must be produced and identified. It is then pre- sumed to have been regular and that all the necessary preliminary steps were observed to give validity to the acts of the duly constituted municipal authorities. Every municipal corporation exercises and enjoys a part of the functions of government. It isa branch of sov- reignty, and as such, may pass laws, not inconsistent with the constitution and laws of the state or federal government; but as municipal acts operate only within a limited sphere, they do not occupy the high plane of legislative acts, and the same presumptions do not arise as to the regularity of their proceedings. Q. Where a document offered in evidence has all the ear marks of validity and appears to have been legally executed and attested, what favorable presumption may be indulged ? A. The presumption is that it was legally executed, and if it were executed in another state that it was ac- cording to the lex loct contractus. Q. Where one acts and holds himself out to the public as an agent, and is so recognized by persons dealing with him, or a person holds himself out as an officer de facto and de jure, and the public recognizes his official acts, what is the presumption as to the regularity of their ap pointment ? A. The presumption is that they were regularly ap- pointed and where their authority to act is assailed on the ground that they were not regularly appointed, the burden to show lack of authority is on him who asserts it. The acts of all duly appointed officials and their sub- 86 Law AND PRINCIPLES OF EVIDENCE. ordinates are also presumed to be regular and legal, un- less it appears on the face of the warrants, or other authority under which they act, that they acted illegally. The mere fact that one is clothed with official authority and is proceeding under the mandate of a court of com- petent jurisdiction does not protect him in going beyond the letter, as well as spirit, of his written instructions. He is the agent of the court in one sense, and in another and very important sense, the agent of the public. To that public and to each individual with whom he is brought in official relations, he owes a duty. He should stick closely to the letter and spirit of his authority. When he goes beyond it he becomes a trespasser ab initio; aye, more, he is a greater and more despicable outlaw than the wretch against whom the process is directed. When the ministerial officer is suddenly transformed into the judge, then it is that ‘‘judgment has fled to _ brutish beasts.” Q. Where one person accepts the services of another and receives the benefit of such services, what is the pre- sumption ? A. That he has agreed to pay reasonable compensation for such services. Indeed, where such presumption is overcome by evidence that no express agreement was made, the Jaw will raise an implied undertaking to pay wiat such services are reasonably worth, and a recovery may be had on a quantum merwit count. Q. Where the question is, whether a letter properly addressed, stamped and posted reached the person to whom it was addressed, what is the usual presumption ? A. The presumption is that it reached him in due course of mail if he were at that time a resident of the place to which the letter was directed. If the person addressed had no settled residence or place of business, no such pre- sumption of receipt applies. The letter is also presumed to have arrived and to have been delivered within the usual time for the receipt and delivery of mail at that point. The same principles apply to messages sent by wire. The Facts BrouGcut To ATTENTION OF JURY. 87 presumption of delivery will not be so strong where the person addressed lives remote from the post office, and is not in the habit of receiving his mail regularly, or where the circumstances were not such as to put him on notice that he might reasonably expect a communication by letter or by wire. The same presumptions apply to letters sent by carriers. Q. Why does it sometimes become important to fix the date of the sending and receipt of letters and dispatches ? A. Because among commercial men, constantly engaged in the active pursuits of business, the most important con- tracts are entered into by means of letters and dispatches and between persons, too, who have never met and who know each other only in a business way. In these days of railroads, telegraphs, of rapid transit and easy inter- communication, contracts are not made with that solemn deliberation which once prevailed, but are often made where millions are at stake, in a few moments, and by means of dispatches. It, therefore, often becomes im- portant to determine when an offer is considered as made and when it is considered as accepted, by letter or by dispatch. Q. Where an agent acts beyond the scope of his au- thority, does any presumption arise as to ratification by the principal, where he silently acquiesces or takes the benefit of such unauthorized acts ? A. It does; but to make the principal’s ratification of the unauthorized act of an agent effectual it must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the agent’s act. Where there is no evidence of acquiescence no presumption can be applied. Adams’ Express Co. v. Trego, 35 Md. 69; Ritch v. Smith, 82 N. Y. 629; Mauch Chunk v. McGee, 81 Penn. St. 438 ; Stewart v. Woodward, 50 Vt. 78. Q. Where goods are deposited with a bailee for safe keeping, what is the presumption as to ownership ? A. The presumption is that the goods belong to the 88 Law AND PRINCIPLES OF EVIDENCE. bailor and the bailee must return them to the bailor or according to the bailor’s directions. He cannot require proof that the bailor is also the owner, and it is no de- fense to the action of assumpsit by the bailor against the bailee for money deposited, that the money belonged to a third person. Q. What is the presumption as to the ownership of a public highway ? A. The presumption of the law is that the owners of the soil on either side have the fee, and that each of them owns usque ad medium filum vie. The same presump- tion applies to private roads. The right of the use of a highway is derived, either by the act of the legislature or by such acts of the original owners of the soil as will, in law, amount to a dedication. Where there has been a continuous and uninterrupted user of the road by the public for a long period, an inference may be fairly raised that the owner has dedicated it, and the burden lies on him to show the contrary. This presumption may be re- butted in the case of a highway or street by proof that the original owner opened the road or street for the use of himself and a few friends, or that he used a gate or draw-bars across them, or by any other acts which indi- cate that it was not his purpose to dedicate it. A dedica- tion will never be presumed to a few persons. It must be to the public at large. Q. To make a dedication valid, by whom must it be made? A. By the owner of the soil. Williams v. Wiley, 16 Ind. 362; Sanford v. Mayor, 52 Miss. 383; Kinnare v. Gregory, 55 id. 612; Harding v. Hale, 83 id. 501; Gridley v. Hopkins, 84 id. 528; Hannibal v. Draper, 36 Mo. 332; McBeth v. Trabue, 69 id. 642; Griffith v. Douglass, 73 Me. 53; Schenley v. Com., 36 Penn. St. 29; Gentleman v. Soule, 32 Ill. 271; State v. O’Laughlin, 19 Kans. 504; Kaime v. Harty, 73 Mo. 316. A trustee may dedicate. Prudden v. Rindsley, 29 N. J. Hq. 615. Q. May a dedication be made by parol ? Facts BrouGHt To ATTENTION OF JURY. 89 A. It may. Whenever the owner of the land indicates an intention to dedicate it will be presumed. Connehan v. Ford, 9 Wis. 240; Hanson v. Vernon, 27 Iowa, 45; Alvord v. Ashley, 17 Ill. 368; McCormick v. Mayor, 45 Md. 512; Atkinson v. Bell, 18 Tex. 474; Muller v. Landa, 31 Tex. 265; Morgan v. R. Co., 96 U.S. 717; Ruch v. Rock Island, 97 id. 698; Cook v. Harris, 61 N. Y. 448; Dovas- ton v Payne, Smith’s Lead. Cas. 158, from which above authorities are taken. ‘‘ Where streets and alleys have been opened by the owner of the soil and used by the public, with his assent, as a public thoroughfare for years, a dedication of the easement may be presumed, and the continued and uninterrupted use, with the knowledge and acquiescence of the owner, will justify the presumption of a dedication to the public, provided the use has been continued so long that private rights and public convenience might be materially affected by an interruption of the enjoyment.” Richmond v. Stoker, 31 Gratt. 713. That a dedication may be presumed from lapse of time, see Chapman v. Swan, 65 Barb. 210; State v, Walters, 69 Mo. 463; State v. Wells, 70 id. 635; May- berry v. Standish, 56 Me. 342; State v. Canal Co., 26 Ga. 665; Com. v. Cole, 26 Penn. St. 187; Schenley 2. Com., 36 id. 29; Green v. Oakes, 17 Il. 249; Kyle uv. Logan, 87 id. 64; Boyce v. Kalbaugh, 47 Md. 334; Day v. Allender, 22 id. 511. It is said in Dillon: ‘‘The intent to dedicate will be presumed against the owner where it appears that the easement in the street or property has been used and enjoyed by the public for a period corresponding with the statutory limitation of real actions. But where there is no other evidence against the owner to support the dedication but the mere fact of such user, so that the right claimed by the public is purely prescriptive, it is essential to maintain it, that the uses or enjoyment should be adverse, and that it is with claim of right uninterrupted and exclusive for the requisite length of time. But when it is said it must be interrupted, this refers to the right, and not simply an interruption of the use.” Dillon on Municipal Corporation, vol. 2, § 637. 12 90 Law anp Princretes oF EvIpENcE. Q. Where one sells lots on both sides of an unopened street, which street is marked out on a map exhibited at the time of the sales, does this amount to a complete dedication of the street ? A. It does. Clark v. Providence, 10 R. I. 437; Rees v. Chicago, 38 Ill. 322; Portland v. Whittle, 3 Oregon, 126; ‘Carter v. Portland, 4 id. 339; Briel v. Natchez, 48 Miss. 423; McCormick v. Mayor, 45 Md. 512; Tinges v. Mayor, 51 id. 600; Fisher v. Beard, 40 Iowa, 625; Bartlett v. Bangor, 67 Me. 460; Huber v. Gazley, 18 Ohio 18; Hecker- man v. Hummel, 19 Penn. St. 69. Q. In order to the dedication must there be an accept- ance by the public? A. There must, and no presumption can arise until there is an unequivocal acceptance. Mayberry v. Stan- dish, 56 Me. 342; Mansur v. Haughey, 60 Ind. 364; Parsons vo. Trustees, 44 Ga. 529; McCain v. State, 62 Ala. 139; Forbes v. Balenseifer, 74 Ill. 183; Manderschidv. Dubuque, 29 Iowa, 78; State v. Tucker, 36 id. 485; Putnam v. ’ Walker, 37 Mo. 600; Buchanan v. Curtis, 25 Wis. 99; Rose v. Thompson, 78 Ind. 90; Kinnare v. Gregory, 55 Miss. 612; Sanford v. Meridian, 52 id. 388; San Fran- cisco v. Canavan, 42 Cal. 541. Q. What presumption arises where the highway is not used for a long period by the public and is suffered to become impassable ? A. In such case a presumption of abandonment may be indulged. When there is a manifest intention on the part of the public, either by long continued use, or by the establishment of another road as a substitute for the one dedicated, to permanently abandon it, the dedication falls and the original proprietor of the soil may resume the exclusive use of the highway. The owner of the soil taken or dedicated for a highway never yields any- thing except the mere easement, and when the hignway is abandoned the easement is lost. See Overman v. May, 35 Iowa, 89; Vaughn v. Stuzaker, 16 Ind. 338; Read v. Leeds, 19 Conn. 182; Coburn v. Ames, 52 Cal. 385; Alden Facts Broucut to ATTENTION OF JURY. 91 v. Murdock, 13 Mass. 256; Cheshire Turnpike v. Stevens, 10 N. H. 137; Perley v. Chandler, 6 Mass. 454; Bayard vo. Hargrove, 45 Ga. 342, cited in Dovaston v. Payne, Smith’s Lead. Cas. 170-71, et seq. Q. Where a railroad is built on and along a public highway, dedicated by the owner of the soil, what is the rule as to compensation ? A. The rule is that it is an additional servitude, and the owner of the soil is entitled to compensation. The enjoyment of an easement for one purpose does not carry with it the right to divert it to another purpose. Judge Dillon says that ‘‘a distinction is made where the municipality granting the right to lay the tracks owns the fee in the street, and where the fee remains in the abutting landowner, and it seems to rest on sound principles and to be supported by the highest authority. Where the fee remains in the original proprietor it is immaterial how the public acquired an easement over the lands, whether by condemnation or dedication; it is only for the use of ordinary travel, such as we are accustomed to see on streets or highways. In case the proprietor dedicated the land it was for no other purpose, and if it was condemned his damages were assessed with no other view. A different use of the land from that which it was intended cannot be justified on the ground that a railroad is an improved highway. Railway com- panies are only public corporations in a limited sense. The right of way, the roadbed, and the carriages pro- pelled thereon are owned by private individuals and not by the public. Fares are charged for travel thereon for the exclusive benefit of the parties owning the road. They are constructed and equipped in the interest of private speculation, but at the same time they are intended to subserve the public good. The doctrine most in consonance with our sense of justice is that where the fee of the street remains in the abutting land- owner, the corporation may grant the right to a railway company to lay its track along or across any street, but the company avails itself of its privilege at its peril. If, 92 Law AND PRINCIPLES OF EVIDENCE. in laying its track, it causes a private injury to him who owns the fee in the adjoining premises it must make good the damages sustained.’’ Dillon on Mun. Corp., 697-698. Q. In the case of negotiable promissory notes, what pre- sumption arises as to their transfer before maturity ? A. The presumption is they were transferred before maturity. Walker v. Davis, 33 Me. 516; Hopkins v. Kent, 17 Md. 113; Woodworth v. Huntoon, 40 Ill. 142. Q. Where a negotiable promissory note is indorsed before maturity, what is the presumption ? A. The presumption is that the indorser will pay to the indorsee the amount of the note, on failure of the maker to do so, at maturity. Accordingly, it is held to be a new contract between the indorser and indorsee, and the stat- ute of limitations does not run from the date of the exe- cution of the note, but from the date of the indorsement. Where, however, the indorsement was after the maturity of the note, the indorsee takes it subject to all the equities between the maker and indorser, and in the latter case the statute runs from the date of execution. Q. What is the true presumption in the case of judicial records ? A. Dr. Wharton, in his work on Evidence, says: ‘*That the proper view is, not that the law presumes that a judicial record is right, but that if, on its face, it is complete and regular, the law throws on the party ob- jecting to it the burden of proving any latent imperfec- tions by which it may be affected. And in all collateral proceedings, judgments, where jurisdiction is shown, will be presumed, unless the contrary appear on the record, to have been properly and lawfully entered,” and cites following authorities: Plummer v. Ossipee, 59 N. H. 55; Stearns v. Stearns, 23 Vt. 678; Sanford v. Sanford, 98 Coun. 6; Mandeville v. Reynolds, 68 N. Y. 528; Moore v. Neil, 39 Ill. 256; Rosenthal v. Renick, 44 id. 202; Brown v. Gill, 49 Ga. 549; Tyler v. Chevalier, 56 id, 168; Grin- stead v. Foute, 26 Miss. 476; Reynolds v. Nelson, 41 id. Facts Broucut To ATTENTION OF JURY. 93 83; People v. Garcia, 25 Cal. 531; Dodge v. Coffin, 15 Kans. 277; State v. Gibson, 21 Ark. 140; Frosh v. Holmes, 8 Tex. 29. Q. Where one holds bimself out as exercising a certain trade or profession, such as medicine, dentistry, law or as a veterinary surgeon, and one deals with him in the line of his profession, is it necessary to prove it ? A. It is not, for the presumption is that his representa- tions were true, and he will be estopped from denying their truth. Q. What is the presumption as to all duly appointed officials doing their duty ? A. The presumption is that they do their duty, and the burden is on the person assailing their official conduct to make good his charges. Q. What is the policy of the law as to presumptions from lapse of time ? A. Itis favorable. ‘‘If time destroys the evidence of title, the laws have wisely and humanely made length of possession a substitute for that which has been de- stroyed.” Q. Referring again to the subject of domicile, what is the presumption as to the domicile of the wife ? A. The domicile of the wife follows that of her hus- band, and of the child, that of the father. Q. What is the test of what is the domicile of a person ? A. There is no infallible test. Whenever the question arises it must be determined by the circumstances. Q. By what law is the personal capacity of a person determined ? A. By the law of the domicile. Q. What is domicile ? A. “Domicile is the word which legally expresses the territorial Jocus, over which law operates in defining the personal status of the man. Every man must have a domicile.” Abington v. Bridgewater, 23 Pick. 170: Domz- cilium originus, or place of birth, attaches to the child, 94 Law AND PRINCIPLES OF EVIDENCE. if it be the domicile of the father, but it may be changed by the father during minority or by the party after ma- jority.” From a lecture by John Randolph Tucker, at Washington, Lee University. The following notes by the same author on the subject of domicile are so exhaus- tive and pertinent that we venture to insert them at this point: ‘‘ Residence transient and temporal does not make domicile. Domicile is the place which the man fixes, or presumably is supposed to fix, as that around which center the relations personal, social and business, of life. It is his permanent abode, his home, at which, when there, he has animus manendi; to which, when away, he has animus revertendt.” Q. What two things concur in domicile? A. First, fact of residence, actual or constructive, per- manent, though not uninterrupted. Secondly, intent to make it permanent. In fact and in intent, his presence there is his custom, his absence is exceptional. Phill. Dom. 4 B. 43; Whart. Con. of L. § 23; Story Con. of L. §§ 41-44; Vattel L. of N. B., 1, ch. 19, § 22; Abington v. Bridgewater, 23 Pick. 170; 1 Am. Lead. Cas., title, Domi. cile. Domicile is distinct from nationality or citizenship. A foreign minister has constructive domicile in his own country; so has a consul. Foreign subjects or citizens have domicile in the United States and vice versa. Hal- dane v. Hckford, L. R., 8 Eq. 631. Naturalization is needed to make alien a citizen, but an alien may not only have legal domicile in the United States, but will be protected by the United States everywhere except in his own land to which he voluntarily returns. Martin Kos- ta’s case, Wheat. El. of Int. Law, 122, note a. But aciti- zen who commits crime in a foreign country cannot be protected, if fairly tried by the foreign law. Property of acitizen domiciled in an enemy’s country is liable to capture by his own nation. The Venus, 8 Cranch, 253, 335; Livingston v. Ins. Co., 7 id. 506; The Nereide, 9 id. 388; The Anny Warwick, 2 Black, 635; United States v. Alexander, 2 Wall. 404; 3 Phill. Int. L. 604, 613; Ennis v. Smith, 14 How. 421. Facts BrouGut To ATTENTION OF JURY. 95 Q. Where domicile is once fixed, is it presumed to con- tiuue ? A. It is, unless clearly changed. Not changed in atinere, unless from a new domicile to that of origin, where it is said it reverts before the intent is consummated inact. Shaw v Shaw, 98 Mass. 158; Morehouse v. Lord, 10 H. of Lords Cas. 272; Whart. Ev. § 556; The Friend- schaft, 3 Whart. 14. Q. Are residence and domicile synonymous? A. They are not. Prima facie a person’s residence is his domicile. Residence of a married man’s family is deemed his domicile, though he does business elsewhere; but this is not conclusive. Where does he vote? Where is he assessed for taxes? His own opinion and intent may decide it in doubtful cases. Haldane v. Eckford, L. R. 8 Kq. 681; Aitchison v. Dixon, 10 id. 589; Fisk v. R. Co., 53 Barb. 472; Evans v. Bradshaw, 10 Gratt. 207; Harvard College v. Gore, 5 Pick. 370; Somerville v. Som- erville, 5 Ves. 750. If a man be unmarried the above tests apply. If one takes a new residence, with definite purpose to return at some indefinite time, his domicile is changed. But if he takes a new residence, to return when some definite object is attained, though time is not fixed, his old domicile remains. ‘‘A” and ‘‘B” go abroad. “A” goes for health and pleasure, animo revertendi, when these objects are satisfied. ‘‘B,’”’ goes to remain, and has only an indefinite purpose of returning. ‘‘A” does not, but ‘‘B” does, lose his American domicile. Thorndike v. Boston, 1 Metc. 242, 250; 3 Hagg. § 374, L. and cases, supra. Students at college, animo revertendz, have orig- inal domicile. Granby v. Amherst, 7 Mass. 1. But if with purpose to remain indefinitely, and no fixed purpose to return, otherwise. Putnam v. Johnson, 10 Mass. 492. Q. Does perpetual imprisonment make a change of domicile? A. It does, but it is otherwise where it is only tempor- ary. Animus is not to go—not to remain—and ever to re- turn. Whart. Ev. § 54; Bempde v. Johnstone, 3 Ves. 198; 96 Law AND PRINCIPLES OF EVIDENCE. Grant v. Dallibar, 11 Conn. 234; Woodstock v. Hartland, D1 Vt. 563. One goes to a place animo manendi for an indefinite time, and animo revertendi, at an indefinite time. The domicile is changed, but if fora definite stay, no new domicile. A mere floating intent to return makes. anew domicile. Story, § 46. Q. What is the domicile of a minor ? A. Domicile of a minor is that of his father, of a bas- tard that of its mother, and changes with that of the parent. Somerville v. Somerville, 5 Ves. 750; Shaw v. Shaw, 98 Mass. 158. Last domicile of the parent is that of surviving child. The mother may change the domi- cile of the child, if bona fide, when father dies and while a widow; but not by and after second marriage. Lamar v. Micon, 112 U.S. 452; 114 id. 218; Whart. Ev. §§ 41, 42, 52; Holyoke v. Haskins, 5 Pick. 20. A statutory guardian cannot change the domicile of the child. He cannot abandon the jurisdiction which appointed and holds him responsible. A child, after the death of both parents, may, by removal to domicile of paternal grandmother (his natural guardian) acquire a new domicile. Lamar v. Micon, 114 U. S. 218. An infant cannot change his own domicile, but takes that of his natural guardian. Q. Can guardian of a lunatic change his domicile ? A. He cannot. He may take the lunatic for cure to other places but not change his domicile. How can he in another state than that under which he holds, exer- cise power? It would involve change of succession. Holyoke v. Hoskins, 5 Pick. 20; Andrews v. Anderson, 42 Vt. 350; Pittsfield v. Detroit, 53 Me. 442. Q. By what is the domestic and social status of a i pee son determined ? A. The lex domicilit defines them. Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its terri- tory. Strader v. Graham, 10 How. 82. This results from the sovereign power of the state. Q. What is the rule as to artificial corporate beings? Facrs Broucut To ATTENTION OF JURY. 97 A. These are parasites to the states creating them. Bank of Augusta v. Harle, 13 Pet. 519. Lex domicilit fixes the power of the corporation. It can exert no power but what lex domicilit confers, and if it acts or contracts outside its domicile, its acts and contracts must be such as lex domiczlit confers. Its rights are prescribed by the lex fort. Jackson v. Bank, 9 Leigh, 240; Slaugh- ter v. Com., 13 Gratt. 767; Tombigbee R. Co. v. Knee- land, 4 How. 16; Providence Bank v. Billings, 4 Pet. 516. Q. By what law is the capacity of natural persons de- termined ? A. The contractual capacity, tortious liability, disability of minority and period of majority, relations social and family, must be determined by lex domiciliz. Q. What is the presumption as to the ownership of soil of a public highway by the proprietors of adjacent land ? A. The presumption is of ownership, but this pre sumption may be rebutted by showing that the road and the land belonged to different proprietors. 2 Whart. Ev. § 1339. Q. Where there has been long, adverse and uninter- rupted possession of the lands, what will be the presump- tion as to missing links in the chain of title ? A. Such links will be presumed. Dr. Wharton says, that ‘‘ Where a title, good in substance, is held, and where adverse to the parties against whom the presump- tion is invoked, there is undisputed possession consistent with such title, for twenty years, or for a period which other circumstances make equivalent to twenty years, missing links of a formal character may be presumed against adverse parties, who, when competent to dispute such possession, have acquiesced in it. Nichol v. Mc- Calister, 52 Ind. 586; Paschal v. Dangerfield, 37 Tex. 2783. Earley v. Euwer, 102 Penn. St. 338. Q. In order to the introduction of secondary evidence on the loss of a paper, what is the presumption as to loss, 13 98 Law AND PRINCIPLES OF EVIDENCE. after the party has shown that all means to find it have been exhausted ? A. The presumption of loss is raised, and the second- ary evidence will be received. Q. Where a paper cannot be produced after diligent search, will the sayings of a deceased person be received to show that she seized and destroyed the papers, in order to raise a presumption of loss? A. They will. Q. What conclusive presumption arises on the subject of easements ? A. ‘“‘It may be stated as a general proposition of law, that if there has been an uninterrupted user and enjoy- ment of an easement, a stream of water, for instance, in a particular way, for more than twenty, or such other period of years as answers to the local period of limita- tions, it affords a conclusive presumption of right in the party who shall have enjoyed it, provided such use and enjoyment be not by authority of law, or by or under some agreement between the owner of the inheritance and the party who shall have enjoyed it.” Q. What ought to be matter of first importance in trials by jury ? A. The object should be, as far as practicable, to secure jurors who are absolutely impartial, and, in all civilized countries, laws have been enacted looking to this end. It is impossible, in the very nature of things, to attain perfection in the matter of trials by jury. Human judg- ment is always fallible and liable to be swayed by inter- est, passion and prejudice. Justice does not always triumph. There can be no doubt, however, that wonder- ful strides have been made in the last century toward perfecting the jury system, and while it must be con- ceded that there are many imperfections, it furnishes the best security ever devised by human wisdom for reach- ing substantial justice. Q. In criminal cases, where a juror has formed and Facts Brougst To ATTENTION OF JURY. 99 expressed an opinion as to the guilt or innocence of the prisoner, will he be set aside for cause ? A. He will. The oath usually required of the juror is that he has neither formed nor expressed an opinion as to the guilt or innocence of the prisoner, from having seen the crime committed or from having heard any part of the testimony delivered on oath, and he is further required to swear that his mind is absolutely impartial between the state and the accused, and that he has no bias or prejudice either for or against the prisoner at the bar. In civil cases each juror is sworn to try each issue submitted to the best of his skill and ability, without favor or affection to either party, according to the law, as given in charge, and the opinion he entertains of the evidence produced. Q. May a juror be challenged, and how are challenges divided ? A. Hither party may challenge, and challenges are divided into challenge for cause and peremptory chal- lenge. The former is where the juror is disqualified either propter affectum or propter defectum. The latter is where either party objects to the juror without assigning any reason. Each party is entitled to so many strikes, which is regulated by the local statute. Q. What is meant by a challenge to the array or to the poll ? A. A challenge to the array is where the whole panel is objected to on account of some defect or error in the drawing or summoning of the jury. A challenge to the poll is where there is objection made to the juror as he comes to be sworn. An objection propter affectum, as the term clearly indicates, is where the objection to the juror is founded on his partiality of prejudice, as near relationship, by affinity or consanguinity, or where, for example, the juror has repeatedly expressed his convic- tion that the prisoner is guilty, or has been guilty, of any other conduct which clearly indicates that his mind is not impartial between the state and the accused. It 100 Law AND PRINCIPLES OF EVIDENCE. will be of no avail, however, to show that the juror has merely stated that if such and such things were true the prisoner ought to be convicted. Nor will it, as a gen- eral rule, be good cause for challenge, propter affectum, that the juror has formed and expressed an opinion from mere rumor or from having read the newspaper accounts. of acrime. If he has formed it from having witnessed the commission of the crime or from’ having heard any part of the evidence delivered on oath, the challenge will generally be sustained. The question is, has the juror formed such an opinion, is he so settled in his convic- tions that he would not readily yield to the evidence. Almost every person in a community where a crime has been committed forms some opinion as to the guilt or innocence of the person charged, and if such person could be set aside for cause, in many cases, it would be impossible to secure a jury. Many persons express opin- ions in order to escape jury duty, and others do so on idle rumor. All that is demanded by justice is, that the court should be satisfied from the character of the juror, from his solemn oath and the circumstances under which the opinion was expressed, that he is not disqualified to pass fairly and impartially on the evidence to be deliv- ered under oath. In civil cases, where the juror is inter- ested in the result, or is related to either party within certain degrees, it is a good ground for challenge. It is also held that where the juror is ‘so related to counsel, who has a contingent fee, it is good ground for chal- lenge. An objection, propter defectum, is where the juror is incompetent from old age or infancy or non- residence, or is lacking in the necessary legal qualifica- tions. A third class of challenge laid down is propter delictum, as where the juror has been duly convicted and sentenced for an infamous crime. A juror may also be challenged because he sustains to one of the liti- gant parties peculiar business or confidential relations; for example, an employee of a defendant corporation is held to be incompetent as a juror. Wherever the rela- tion is such that there is a strong moral and reasonable: Facts Broueut to ATTENTION OF JURY. 101 probability that a juror will not be impartial, a chal- lenge to the poll will be fairly entertained. Challenges should be made as the jurors come to the book to be sworn, and before they are sworn. Where an objec- tion is made to the juror, or the challenge is to the array, all the objections should be stated and urged at once. Q. Where the objection to the juror is not known at the time he should have been challenged, either to the party or his counsel, will a new trial be granted on this account ? A. If there be reasonable ground to believe that the rights of the party have been prejudiced, it may. Q. By whom is the competency of the jury to be de- termined ? A. In some jurisdictions the juror is put on the triors and they determine it; but the court in most of the states, has taken the place of triors and passes finally on the question. Q. Where a juror states on his voir dire that he has formed and expressed an opinion from newspaper reports, may he be asked if he can give the defendant a fair and impartial trial ? A. He may. So where the juror says that he has heard the crime discussed and then formed the opinion that defendant was guilty, but further states that he can render a fair and impartial verdict and that he is not prejudiced, he is competent. Q. Will the mere fact that a juror is bitterly opposed toa certain business, such as the sale of intoxicating liquors, render him incompetent to sit on a case where one is being tried for the offense of selling liquors with- out license ? A. It will not. Q. Where a juror was put on his voir dire and failed to state that he had an interest in the result of the suit or that he was related to the successful party, will the fact 102 Law AND PRINCIPLES OF EVIDENCE. that he afterwards stated that he was impartial operate to deny the defendant a new trial? A. It will not. Q. Where the juror on his voir dire states that he has formed and expressed an opinion, but further declares that the opinion is not fixed and deliberate, may defend- ant examine him as to the strength of his opinion? A. He may, with a view to ascertaining whether the opinion he has formed is settled. Q. Where a juror states on his voir dire that he has formed an opinion from newspaper reports, but that his opinion would yield to evidence if it was ‘‘ very strong’’ and that it would take ‘' that kind of evidence to change him,” is he a competent juror ? A. He is not. Q. Where persons have contributed money to aid in the prosecution of a crime, are they competent jurors ? A, It has been held that such an act would disqualify them; it is strong evidence of a fixed opinion. Q. What is a general rule as to challenges to the array ? A. “A mere irregularity in drawing a jury is not suf- ficient cause to sustain a challenge to the array, unless the irregularity complained of is of such a character as would probably have produced a change in the panel, or presented a list of names to choose from, different from those which would be produced by a compliance with the law.” Q. Has a defendant the right to insist on a full panel ? A. He has. Q. How is the right of trial by jury guaranteed ? A. By the Constitution of the United States and the Constitution of the different states. The Constitution of the United States provides that ‘‘in all crimimal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by Facts BrouGHt To ATTENTION OF JURY. 103 law and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.” Q. Having secured an impartial jury for the trial of a case, what is the next step in the trial ? A. It is to submit the evidence for the plaintiff and the defendant. In doing so, the court will be careful to ex- clude all irrelevant matter and to confine the litigants to the real questions in issue. The jury should be placed in possession of all the relevant facts and none other. Where important questions are being considered the jurors may be kept together so as to avoid any undue in- fluence by the litigants or other persons. While the trial proceeds they should be constantly warned not to speak to any one about the case or to permit any one to speak to them and not to discuss it among themselves until they have heard all the evidence, the argument of counsel and the charge of the court. The juror who disregards this injunction is unworthy a place on the jury and his name should be cast from the jury box as a thing of evil. It is little less criminal than bribery and is very close kin to perjury. Q. Where it is shown that pending the trial of a case, one of the parties slept with a juror, paid his board at the hotel, drank with him or did other acts calculated, in their very nature, to influence the juror, will such conduct justify a court in setting aside a verdict ? A. It will. It is always best to avoid the very appear- ance of evil, and while one is performing jury duty he should guard against every approach and every form of bribery. With clean hands and a pure heart, he should perform his sworn duties in the fear of God and the love of justice. No temptation, no song of the syren, should sway him from the plain path of duty. He should re- member that by the choice of his countrymen and the sanction of the courts, he has been made the guardian, 104 Law AND PRINCIPLES OF EVIDENCE. for the time being, of the most sacred rights of his fellow creatures. The safest rule is, not to accept any favors from the litigants; for a ‘‘gift bindeth the eyes of the judge.” Q. What is the duty of the judge in charging the jury ? A. In charging the jury the judge should not express any opinion as to what has or has not been proven. He should impartially state the law bearing on the facts submitted by each party, and where he charges the law on the facts submitted in evidence by the plaintiff, he should be careful to charge the converse. Q. What is the rule where the judge is related to either of the parties or has an interest in the result of the liti- gation ? A. Where the interest or relationship is such as to dis- qualify a juror, as a general rule it should disqualify a judge. It is, therefore, well settled that when the judge has an interest in the result of the litigation, as where he is a stockholder in a corporation which is plaintiff or defendant in a case, before him, or where he is related by affinity or consanguinity, within a certain degree, to the plaintiff or defendant, he ought not to try the case; so, where he has been consulted on any matter before he goes on the bench, and such question afterwards comes before him, he ought not to preside. Nor ought a judge to express any opinion as to the law of a case, litigated or likely to be litigated before hin, except when required to do so in his official capacity. Such conduct on the part of a judge is highly reprehensible. It is his duty to declare the law from the bench and not in the high- ways and hedges, and no graver charge can be brought against him than that he has prejudged acase. It is the very irony of mockery for the suitor to come before the judge who has already decided his case. When the judge assumes the role of a partisan and advocate he should leave the woolsack and lay aside the gown. ‘« Judges,” said Lord Bacon, ‘‘ ought to remember that Facts BrouGut To ATTENTION OF JURY. 105 their office is, jus dicere and not jus dare, to interpret law and not to make law or give it. Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, in- tegrity is their portion and proper virtue. Cursed is he that removeth the landmarks. The mislayer of a mere stone is to blame; but it is the unjust judge that is the capital remover of landmarks when he defineth amiss of lands and property. One foul sentence does more than many foul examples; for these do but corrupt the stream, the other corrupteth the fountain. The place of justice is an hallowed place; and, therefore, not only the bench, but the foot-pace and precincts and purprise thereof ought to be preserved without scandal and cor- ruption, for certainly will grapes not be gathered of thorns or figs of thistles; neither can justice yield her fruit with sweetness amongst the briers and brambles of catching and polling clerks and ministers. The attend- ance of courts is subject to four bad instruments: First. Certain persons that are sowers of suits, which make the court swell and the country pine; the second sort is, of those that engage courts in quarrels of jurisdiction and are not truly amici curie but parasiti curie, in puffing a court up beyond her bounds for their own scraps and advantage; the third sort is, of those that may be ac- counted the left hand of courts; persons that are full of nimble and sinister tricks and shifts whereby they per- vert the plain and direct courses of courts and bring jus- tice into oblique lines and labyrinths; and the fourth is the poller and exacter of fees which justifies the common resemblance of the courts of justice to the bush, where- unto, while the sheep flies for defense in weather, he is sure to lose part of his fleece.” 14 CHAPTER III. RULES GOVERNING WITNESSES. Q. How is the attendance of witnesses at court gener- ally secured ? A. By the ordinary writ of subpoena, in civil as well as in criminal cases. The writ is known as a writ of sub- peena ad testificandum. Itis a judicial writ, which issues without an order of the judge, by the clerk of the court where the witness is required to attend. It is directed to the witness whose attendance is sought, commanding him, under a named penalty, to be at a certain court on a certain day named, and then and there to testify and the truth to say between the litigant parties and in be- half of the plaintiff or defendant. Q. Where any document, material to the case of the plaintiff or defendant is sought and the same is in the hands, custody or control of a stranger to the litigation, how can the production be compelled ? A. By a subpoena duces tecum, which is a writ directed to the person in whose custody the paper may be, com- manding him, under a penalty, to attend court on a day named, and to bring with him the document or instru- ment sought. Q. How ought the papers, whose production is de- manded, to be described ? A. The papers should be clearly and distinctly set forth, so as to furnish the witness with exact information as to their nature. A general description, such as ‘‘all the papers you may have bearing on the particular case,” would hardly suffice, for such a direction would leave it largely to the witness to determine what papers ‘‘ bear on the case.” It is peculiarly the office of the judge to determine this question. The particular papers should be mentioned and these the witness is bound to produce in open court, and the judge will determine their rele- 106 RuLES GOVERNING WITNESSES. 107 vancy and whether the witness may withhold them. When the paper is in the power, custody or control of the witness, he must produce it or be in contempt of the court. It is not for him to decide whether it be relevant or whether he be bound to produce. Q. Wherea witness, under subpoena, fails, without legal excuse, to attend court, what is the next step to enforce attendance ? A. The witness is in contempt of the judicial writ and the next step is to seek an attachment against the wit- ness, or rule calling on him to show cause instanter or at a named time, why he has failed to attend court under the subpoena. Q. What is the rule at common law in such cases? A. The witness is also liable for damages in an action on the case, for failing to attend court and to testify to facts within his knowledge and material to the party’s case. Q. By whom ought the service of the subpcena to be made on the witness ? A. Generally by some officer who has authority to serve writs; but the rule now almost universally adopted is, that any person may serve an ordinary subpecena. It should be served in time to afford the witness a reason- able opportunity to attend. The subpcena should clearly state when the witness must attend, where and in what case, and at whose instance or on whose behalf he is to attend. Any mere informalities or immaterial omissions will not excuse him. The question is, did he know that he had been ordered by the court to attend on a certain day ? Q Can a witness demand his attendance fees as a con- dition ? A. As a general rule he must attend and cannot re- quire pay in advance. It really seems to be a great hard- ship to require witnessess to leave their business and to attend court from day to day without any prospect of 108 Law AND PRINCIPLES OF EVIDENCE. compensation, but it would be a still greater hardship on avery poor man, having a just cause, if he could not assert his rights for the lack of money to pay the fee of his witnesses. Persons should be willing to make occa- sional sacrifices in the interests of justice and humanity. In criminal cases the defendant has the constitutional right to ask for compulsory process to require the attend- ance of his witnesses. Q. Where the witness is in custody, how can his at- tendance be procured? A. By means of a writ of habeas corpus ad testifican- dum. On petition to the proper judicial officer setting forth that the evidence of a witness is material to the plaintiff’s or defendant’s case, and that the witness is imprisoned and cannot respond to the ordinary writ of ‘subpoena, the court will usually give directions to the person having the witness in custody to bring him into court. Q. Ought not the grounds to be clear to authorize a court to issue an attachment ? A. They ought. It is certainly a very extraordinary authority vested in one man to incarcerate another for failure to obey a writ of subpoena. It is, no doubt, ab- solutely indispensable to the due and orderly administra- tion of the law that such power should be lodged in the judge; but it is no less true that it should be exercised with caution and not ina vindictive spirit. Every op- portunity should be afforded the witness to account for his delinquency. Q. When a witness is brought into court under an at- tachment, what ought he to do? A. He ought, if possible, to purge himself of the con- tempt. This he may do by showing that he was too sick to attend or that a stream was impassible, or that a member of his family was taken suddenly ill, or that he was in custody, or that he was honestly misled by the date mentioned for his attendance, or that the party calling him had excused his attendance, or that he was RULES GOVERNING WITNESSES. 109: in attendance on another court as a juror or witness, or any other showing which satisfies the court that he was. not knowingly or willfully in contempt. Q. How can documents in the power, custody or con- trol of a party to the suit be procured ? A. By simple notice, in writing, served on the opposite party or his counsel, describing the papers sought and setting forth that the same are material and that they are sought to be used as evidence, and directing such party to produce the same in court on a day or term named, and from day to day, and from term to term, until the case is finally disposed of. Q. What is the effect of a failure to produce ? A. The party calling for them may introduce secondary evidence of their contents, and when the construction of any paper is doubtful, it will be construed most unfavor- able to the party failing to produce. Q. Will the custodian of public records be required to produce them under a subpoena duces tecum ? A. He will not. Documents in which the public has an interest should be carefully kept in the place desig- nated by law for their deposit, so as to be at all times ac- cessible to the public. This could not be done if such documents could be taken from court to court. In such cases certified transcripts may be used. Q. Is it held necessary that a subpoena should issue be- fore a witness can be sworn ? A. It isnot. If in court as a spectator, juryman or as a witness in some other case, he may be sworn. But he cannot be compelled to remain in the court room or to continue his attendance on court without a subpoena. When a witness attends court and testifies without a subpoena he cannot generally collect his fees, or where he attends court under a subpcena, but is not sworn and examined, he cannot collect his fees out of the adverse party. It would seem that he should be entitled to an 110 Law AND PRINCIPLES oF EVIDENCE. action on the case to collect his fees out of the party at whose instance he attends court. Q. What is an oath? A. An oath is the “‘calling God to witness in aid of a declaration by man.” Q. How is a witness generally sworn ? A. In all christian countries a witness is generally sworn by placing his right hand on the Holy Evangelists of Almighty God and declaring that he will tell the truth, the whole truth, and nothing but the truth; so help him God! Q. Where a witness objects to swearing, will he be permitted to solemnly affirm 4 A. He will; yet some form of oath or solemn affirma- tion amounting to an oath, is indispensable to qualify one for the witness stand. Some witnesses have con- scientious scruples about taking oaths in the form usually adopted. It is only in such cases that they will be per- mitted to affirm. Q. What is the rule as to a witness being privileged from arrest while attending court ? A. Where a witness attends court under a subpoena he may be arrested on any criminal charge or for breach of the peace; but he cannot be arrested on civil process, eundo, morando.-et redeundo. Q. Does this same.rule apply where a witness is in at- tendance before a committee of congress or of the legis- lature ? A. It does. Q. By whom must the competency of a witness be de- termined ? A. By the court. Q. Does not the policy of our law exclude a large num- ber of persons from becoming witnesses at all ? A. It does. Many are excluded on the idea that they do not comprehend the nature and obligation of an oath; RuLES GOVERNING WITNESSES. 111 others, because of the very peculiar temptations to which they would be subjected to swear falsely, if allowed to testify; and still another class which is excluded because of infamy. In some of the states where one of the parties to the contract or cause of action is dead the other will not be allowed to testify. The policy of the law is not to exclude witnesses because of interest. Q. Was it not formerly considered that infidels were incompetent as witnessess ? A. It was. Gilb. Ev. § 142. Q. What is really the correct test of competency ? A. It is whether a witness believes in the existence of a God, that an oath is binding on the conscience and ina future state of rewards and punishments. If the witness believe in a God who will punish him in this world, it will be sufficient. There ought certainly to be some sense of the obligation of an oath; for if the witness does not believe in a God, and does not believe in any punishment in this world or the world to come, the administration of an oath is worse than folly, it is downright sacrilege. It is on the ground that infants cannot comprehend the obligations of an oath that the law excludes them as witnesses. Q. Where a child of tender years does not appear to understand the obligation of an oath, may not the case be postponed and the child properly instructed ? A. It may. © Q. What is the general rule adopted in the United States ? A. It is that a witness is not rendered incompetent by his disbelief in a future state, and that it goes to his credibility and not his competency. Hunscom v. Huns- com, 15 Mass. 184; Brock v. Milligan, 10 Ohio, 121; Blocker v. Burness, 2 Ala. 354; R. Co. v. Rockafellow, 17 Ill. 541, 542; Clinton v. State, 33 Ohio St. 27. One who does not believe in God cannot be a witness. People v. McGarren, 17 Wend. 460 ; Norton v. Ladd, 4'N. H. 444. “Tf the witness does not believe in any Supreme Being, 112 Law AND PRINCIPLES OF EVIDENCE. who will reward virtue and punish vice, there is no mode known to us by which an oath can be made binding on his conscience. If a man sincerely believe himself to be- long to the highest order of intelligences, it may be his misfortune and not his fault; but he cannot be sworn by the greater, and if sworn at all he must be allowed to swear by himself.” It has been held in some of the states that the exclusion of a witness because of his want of any religious belief is unconstitutional. Buck v. Com., 80 Ky. 244; Stanbro v. Hopkins, 28 Barb. 265 ; Searcy v. Miller, 57 Iowa, 619 ; State v. Elliott, 45 id. 486. Q. Does it differ as to the form of the oath, so the wit- ness is sworn according to his religious belief ? A. It does not. The Jew may be sworn on the Old Testament, and the oath is binding. Q. Is a witness always presumed to be competent until the contrary is shown ? A. Heis. The burden is on the party assailing com- petency to show it. Q. When a witness is absent from any unavoidable cause, may the case be continued ? A. It may. The party applying for the continuance should show how his testimony is material; that the wit- ness has been duly subponeed ; that he is not absent by his consent or procurement ; that he expects to have the benefit of his testimony at the next term, and that the showing for continuance is not made for delay only. Q. How may a deaf and dumb witness be heard in court ? A. Throughan interpreter, and generally the interpreter should be sworn. Q. Is any particular number of witnesses required to prove a fact ? A. No particular number is required. In trials for perjury there should be two witnesses, or one witness and strong corroborating circumstances; so in cases of RULES GOVERNING WITNESSES. 113 treason there should be two or more witnesses to the same overt act. Q. Where it appears in the progress of a case, that wit- nesses are being unnecessarily multiplied, may the court, ex mero motu, decline to hear further evidence ? A. He may, but the power to suppress further testi- mony should be exercised with extreme caution lest the interests of the party suffer. Where there is no serious contention, however, on a particular point, it would seem but consonant with reason, that the court should protect itself from the needless consumption of time. Q. Where a witness has been convicted of an infamous offense, does it disqualify him ? A. In many jurisdictions it does. Q. Where he has been convicted in a foreign state, does this disqualify ? A. It has been held that the conviction of a witness in a foreign country of an infamous offense will disqualify, provided the offense would disqualify at common law. In many of the states, however, it has been held that the conviction of a witness in a neighboring state will not render him incompetent. Q. Where a witness is rendered incompetent on ac- count of an infamous crime, how may his competency be restored ? A. By full and complete pardon. It has also been held that where one has undergone the punishment imposed, that this restores his competency, but this position has been gravely challenged by the ablest authorities. Q. Is the testimony of an accomplice admissible ? A. An accomplice may be sworn as a witness when jointly indicted, by severing on the trial. A person can- not be convicted on the testimony of an accomplice alone, and the testimony of one who confesses his own guilt should be received with the greatest possible cau- tion, and unless there are strong corroborating circum- 15 114 Law AND PRINCIPLES OF EVIDENCE. stances, the jury should not convict. His own guilt is always proper subject-matter for observation on the trial of a case. Q. Where a deaf and dumb witness gives evidence by making signs, must he do so in the presence of the court and jury? A. He must, and then the sworn interpreter may com- municate his answers to the court and jury. Q. At common law could a witness who was a party to the suit, or interested in the result of the litigation, testify ? A. He could not. Q. What particular class of crimes render witnesses incompetent ? A. Treason, felonies and the crimen falsz. Q. In criminal cases, can the husband and wife testify for or against each other ? A. In most of the states they are held incompetent. They were incompetent at common law. Where the husband commits a personal injury on the wife or the wife on the husband, at common law, and by the stat- utes of all the states, they are competent. 1 Greenl. Ev. § 343; Turner v. State, 60 Miss. 351; 45 Am. Rep. 412. Q. Is the husband or wife competent to testify to any confidential communication made by the one to the other while the marital relation subsisted ? A. Neither is competent. Even after death or divorce the previous confidential communications are held sa- cred. Q. Can the presiding judge be sworn in a case pending before him ? A. It has been held that he cannot. Q. Where an objection is made to the competency of any witness, when ought the objection to be raised ? A. It ought to be raised before the witness is sworn, although it is within the discretion of the court to con- sider the objection afterwards. RULES GOVERNING WITNESSES. 115 Q. Does the doctrine of primariness and secondariness apply to the case of witnesses as in case of documents ? A. It does not, and a witness may be sworn and examined, although there may be twenty other witnes- ses who are more familiar with the facts than he. Q. Is there any particular age at which infants are held incompetent to testify ? A. There is not. If a child of very tender age is shown to be unusually intelligent and to comprehend fairly the nature and obligation of an oath, the court may, after a careful examination, allow him to testify. On the other hand, even where a child is much older, if its education and religious instruction have been wholly neglected and it appears to entertain no just conception of the solemn obligation of an oath, it ought certainly to be excluded as incompetent. As previously indicated, where the mat- ters.involved are very important and the testimony of the witness is material, the court, in the exercise of a sound discretion, may suspend the case and have the wit- ness properly instructed. At any rate, this doctrine has been held. Q. Will the mere fact that a child would not be indict- able on account of the conclusive presumption of inno- cence, exclude it ? A. It will not. Q. Without reference to age, if there appears to be a total lack of capacity, is the witness competent # A. Heis not. In all such cases it is a question for the court. If the mental capacity be only partial, the wit- ness ought not to be excluded. Lack of capacity, or dullness of the perceptive faculties should go to the credibility, and not the competency, of the witness. The rule is to admit, and not to exclude, witnesses, and unless it be made clearly manifest that the witness is wholly incompetent, his evidence should be received for what it is worth. After all, their credibility goes to the jury. 116 Law AnD PRINCIPLES oF EVIDENCE. Q. Where the witness offered appears to be completely intoxicated, will he be excluded # A. He will, where the intoxication is to such a degree as dethrones the reason. Q. On what does the credibility of the witness mainly depend ? A. On the intelligence, opportunities for observing the facts about which he testifies, and his veracity. The jury may, and ought, to consider any bias or prejudice of the witness, his interest, present or prospective, his means. of knowing the facts, his manner of relating them, or that at the time he testifies he is partially under the in- fluence of whiskey, opium or other narcotics. They ought also to consider his feeling towards the party against whom he testifies, or whether the witness has a case pending similar to the one on trial. His confiden- tial relations to either party may also be shown as well as. relationship, or whether he is the employer or employee of either party. Q. What is meant by the maxim: Falsus in uno, falsus in omnibus ? A. It is simply meant that where a witness swears. falsely touching any fact involved in a case, it throws discredit on all hisstatements. If he be conclusively dis- credited as to a part of the testimony by showing that it was false and that he knew it, the jury may or may not give weight to his other statements, but the spirit, if not the letter, of the maxim applies. A. Where two or more witnesses, in giving an account. of a transaction, involving numerous details, relates with circumstantial precision and perfect correspondence of statement all that was done and all that was said, how should such testimony be considered ? A. It ought to be regarded with the gravest suspicion. Where many facts are related by witnesses out of the presence of each other, perfect coincidence as to the minutest details could not occur one time in ten thousand, without previous training. It is almost infallible evi- RULES GOVERNING WITNESSES. 117 dence that they have previously heard each other’s ver- sion of the transaction and agreed that each should give the same account. Q. Is it not more in consonance with our daily obser- vation and experience that witnesses who speak truth- fully generally agree on the main points and differ as to mere details ? A. It is, and the accepted maxim is that ‘‘ substantial truth generally appears under circumstantial variety.” The fact that the Apostles differ, in mere details, in their account of the crucifixion is often cited as strong evi- dence of the main facts related by them. . Where a witness swears with an uplifted hand, is this a sufficient swearing on which to base the charge of perjury ? A. It is. Q. Where it is sought to convict on the testimony of an accomplice, will mere corroboration as to collateral facts be sufficient to authorize a conviction ? A. It will not; the corroboration must be, as to a mate. rial fact. It has been held that confirmation merely as to how the crime was committed will not be sufficient. Q. In suits for divorce, is either husband or wife com- petent to prove the adultery of the other ? A. It is generally held that neither is a competent wit- ness. Q. Where an attorney is notified to produce his client’s papers and refuses to do so, can he be compelled to prove their contents ? A. He cannot. In order that this rule should apply, however, the papers must have been placed in the client’s hands in a professional way. It has also been held that the privilege of the attorney is confined to questions asked him with a view to legal advice. It has never been held that questions asked an attorney, not with a view to employment, and not bona fide, to seek his pro- fessional advice, are privileged. The relation must be 118 Law AND PRINCIPLES OF EVIDENCE. such as to make it confidential before either client or at- torney can claim the protection of privilege. Q. What is the rule as to witnesses swearing affirma- tively and negatively ? A. The rule generally stated is, that where one or mare witnesses swear positively that a transaction took place or a thing occurred, and other witnesses equally credible swear that the transaction did not take place, or that the thing did not occur, those who swear positively are to be believed in preference to those who swear negatively, but this rule must be received with the following explana- tions : Where the opportunity of all the witnesses to observe a fact or note a transaction are the same, and their attention was alike drawn to what did or did not occur, the affirmative testimony is entitled to no more credit than the negative. A familiar illustration of the latter doctrine is furnished where two persons, equally credible, and having the same opportunities to observe, watch and listen to note whether a clock strikes. One swears positively that it did strike, and the other swears that it did not. Here the testimony is balanced. But one swears that it struck, and the other swears that he was present and did not hear it strike. Here the affirmative ought to outweigh the negative, for there is no real conflict. The one who swears he did not hear it may swear the truth, for he may not have heard it; but the witness who swears he heard it must be believed. His testimony may be reconciled with that of the other wit- ness without imputing perjury to either, and where this is possible it should be done. Q. Is it not sometimes difficult to determine whether the evidence is affirmative or negative ? A. Itis. A witness swears that he was at a certain house at a certain time, and that another person was not there. Another person swears that he was also present and that the person was there. Is not the testi- mony of each of the witnesses affirmative? One swears RuLESs GOVERNING WITNESSES. 119 positively to a negative and the other positively to an affirmative. It would seem that the rule as to affirma- tive and negative testimony only applies where the negative witness does not swear positively to the nega- tive, but simply affirms that if such an event occurred he did not note it although he was present. Q. Are communications made by a client to his attor- ney in the due course of professional employment, and in reference to the subject-matter of the employment, or by an attorney to his client under the like circumstances, privileged ? A. They are, nor will either be permitted to disclose such communications. Itis certainly of the very highest importance to protect both the client and attorney against the possibility of being forced or allowed to divulge on the stand any confidential communication. What are confidential communications must, in the very nature of the case, be determined by the facts. It may be safely assumed that what is said or written by the client to the attorney, or by the attorney to the client, which grew out of the relation or in contemplation of the future relation, or which would not have been said or written but for the existing or prospective relation, and which bears directly or indirectly, remotely or immediately, on the business or case in which the attorney's advice, opinion or service are sought, is fully protected by this rule. It would be dangerous to the interests of the client if the attorney were permitted, as a sworn officer of the court and daily ministering in the temple, to first gain the confidence of an unsuspecting client and then, in the hour of his peril, betray him. Such conduct ought not only to bar an attorney from the practice, but to exclude him from the society of all honorable men. Any relaxation of this wholesome rule tends to destroy that mutual confidence between client and attorney which is so essential to the fair administra- tion of the law. On the subject of confidential commu- nications, see Maxham v. Place, 46 Vt. 434; Higbee 2. Dresser, 103 Mass. 523; State 2. Barrows, 52 Conn. 323; 120 Law AND PRINCIPLES OF EVIDENCE. Williams ». Fitch, 18 N. Y. 550; Britton v. Lorenz, 45 id. 57; Bowers v. State, 29 Ohio St. 542; Orton v. Mc- Cord, 33 Wis. 205; Willis 7. West, 60 Ga. 613; Barker v. Kuhn, 38 Iowa, 395; Woburn ». Henshaw, 101 Mass. 193; Hartford Ins. Co. v. Reynolds, 35 Mich. 302; Raefle v. Moore, 58 Ga. 94; Wharton’s Evidence, Attorney and Client. Q. Is it necessary that any retainer should be paid in order to protect the communications ? A. Itis not. Ifthe client consults the attorney bona fide in order to get the benefit of his professional skill and learning on a matter in litigation or about to be litigated, or on other matters in which the advice of counsel is usually sought, or where the advice is pro- fessional, neither will ordinarily be permitted to disclose it as a witness. Neither while the relation subsists nor afterwards will the attorney be allowed to testify to them. Sargent v. Hampden, 38 Me. 581; Wilson v. Rastall, 4 T. R. 753; Thorp v. Goewey, 85 Ill. 611. It has been held that communications to an attorney by the wife of his client are privileged) Scranton v. Stewart, 52 Ind. 68. Q. What is generally considered a privileged commu- nication ? A. It is one which the policy of the law protects and which either arises from the close confidential relations of the parties, or which the highest public interest demands should be kept secret. Q. Are communications made to an attorney or by the attorney to the client privileged after the relation has ceased ? A. They are. The attorney is the friend of the court. He counsels with the judge and should lend willing and cheerful obedience to him in reaching just conclusions. He carries in his own bosom the solemn secrets and is entrusted with the dearest interests of his clients, and every possible encouragement should be afforded him to inviolably preserve the one and faithfully defend the RULES GOVERNING WITNESSES. 121 other. His position, his influence and learning invite the confidence of his client. He ought never to be forced to betray it by the mandate of the court. Weeks on Attorneys, § 148, e¢ seqg.; Blunt v. Strong, 60 Ala. 572. As to the powers of the client to remove the prohibition, see Thorp v. Goewey, 85 Ill. 611. Q. Are communications made to an attorney in the presence of his clerk also privileged ? A. They are. Greenl. Ev. § 24; De Wolf v. Strader, 26 Ill. 295; Getzlaff v. Seliger, 43 Wis. 297; Sample v. Frost, 10 Iowa, 266. Q. Where the attorney is represented by another at- torney or agent, what is the rule as to communications made by them to the client ? A. These are also privileged. People v. Atkinson, 40 Cal. 284; 1 Greenl. Ev. § 243; 1 Stark Ev. § 40; Benja- min v. Coventry, 19 Wend. 353; Hamilton v. People, 29 Mich. 188. Contra, Willis v. West, 60 Ga. 613; Mont- gomery v. Pickering, 116 Mass. 231; Hartford Ins. Co. v. Reynolds, 36 Mich. 302; and other authorities cited in Wharton’s Evidence, Attorney and Client. Q. Is the attorney compelled to disclose any private transaction independent of his employment ? A. Heis. ‘‘On the whole,” says Shaw, C. J., in Foster uv. Hall, 12 Pick. 89, and quoted by Phillips on Ev., ‘‘we are of opinion that, although, this rule of privilege, hav- ing the tendency to prevent the full disclosure of the truth, ought to be construed strictly; yet, still, whether we consider the principle of public policy on which the rule is founded, or the weight and authority by which its extent and limits are fixed, the rule is not strictly confined to communications made for the purpose of enabling an attorney to conduct a cause in court, but does extend so as to include communications made by one to his legal adviser, whilst engaged and employed in that character, and when the object is to get his legal advice and opinion as to legal rights and obligations, al- though the purpose be to correct a defective title by ob- 16 122 Law AND PRINCIPLES OF HKVIDENCE. taining a release, to avoid litigation by compromise, to ascertain what facts are necessary to constitute a legal compliance with an obligation, and thus avoid a forfeiture or claim for damages, or for legal and proper purposes not connected with a suit in court.” Q. Where one is employed to draw a deed, are com- munications made by the client protected ? A. It has been so held. Q. Where communications are made in the line of of- ficial duty, such as communications made to a judge or other public officer, or to a grand jury by the solicitor general, or from members of the grand jury to him, are such communications protected ? A. They are. If such communications are not made in the discharge of an official or public duty, they are not protected and the witness will be forced to disclose them. Grand jurors may be compelled to give evidence of what took place during the session of the grand jury, when the evidence becomes material to the trial of a case in another court. Q. Where a question criminates, or tends to criminate a witness, or to expose him to public contempt and ridi- cule, can he be compelled to answer ? A. He cannot. Q. Must the court determine whether the communica- tions between client and attorney are privileged? A. It must. Q. What is the rule in England and America as to criminating questions ? A. The American rule excuses the witness from an- swering, unless the court can see that the answer will not criminate him; the English rule excuses the witness only when the court can see that the answer will criminate him. Q. How may witnesses generally be impeached ? A. One may impeach the adversary’s witnesses in four ways, (1) by showing the facts to have been otherwise RuLES GOVERNING WITNESSES. 123 by other witnesses; (2) by interrogating the witnesses as to previous inconsistent statements made by them before the trial; (3) if they deny the previous inconsistent statements, by proving by other witnesses that they did make them; (4) by showing their general character for veracity. Of these four, the last two are not allowed in the case of one’s own witnesses who testify adversely. Q. May the husband or wife be received as witnesses to impeach or contradict each other ? A. They may. On communications made by one to his attorney are cited from 1 Whart. Ev. § 576: Maxham v. Place, 46 Vt. 434; Higbee v. Dresser, 103 Mass. 523; State v. Bur- rows, 52 Conn. 323; Williams v. Fitch, 18 N. Y. 550; Britton v. Lorenz, 45 id. 57; Graham v. People, 63 Barb. 468; Bowers v. State, 29 Ohio St. 542; Orton v. McCord, 33 Wis. 205; Willis v. West, 60 Ga. 613. As to protec- tion of client from being forced to disclose, see from same author, Bigler v. Rehger, 43 Ind. 112; State v. White, 19 Kans. 445; Hemenway v. Smith, 28 Vt. 701. Q. Where an attorney makes himself an attesting wit- ness, does he not lose his privilege ? A. He does. Q. In questions involving the legitimacy of children, is either of the parents competent to prove non access ? A. In such cases neither of the parents can testify. Q. Where deeds or other muniments of title are left with an attorney for his opinion as to the validity of the title, or for the purpose of investigating any matter to which they relate, can he be forced to produce them ? A. He cannot; but it is held that he may be asked as to their existence so as to let in secondary evidence. 1 Greenl. Ev. § 241. Mr. Greenleaf says as to the excep- tions to the general rule: ‘‘ This rule is further illustrated by reference to the cases in which the attorney may be examined, and which are sometimes mentioned as ex- ceptions to the rule. These apparent exceptions are, where the communication was made before the attorney 124 Law AND PRINCIPLES OF EVIDENCE. was employed as such, or after his employment had ceased, or where, though consulted by a friend, because he was an attorney, yet he refused to act as such and was only applied to as a friend; or where there could not be said, in any correctness of speech, to be a communica- tion at all, as where, for instance, a fact, something that was done, became known to him from his having been brought to a place by the circumstances of his being the attorney, but of which fact any other man, if there, would have been equally cognizant; or where the matter communicated was not, in its nature, private, and could in no sense be termed a confidential disclosure; or where the thing had no reference to the professional employ- ment, though disclosed while the relation of attorney and client subsisted; or where the attorney having made him: self a subscribing witness, and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases it is plain that the attorney is not called on to dis- close matters which he can be said to have learned by communication with his client or on his behalf, matters which were so committed to him, in his capacity of at- torney, and matters which in that capacity alone he had to know.” Q. Are communications made to a clergyman by one seeking spiritual consolation or advice excluded on the ground of privilege ? A. They are not, but the minister will be bound to dis- close them. On this question, however, there is much conflict, but the doctrine seems to be as stated, both in England and America. Joy on Confessions, 49-58; Best’s Principles of Ev. §§ 417-419. : Q. Arecommunications made to physicians or to friends or clerks or other persons, in confidence, privileged from disclosure 4 A. They are not. Q. Is a message sent by wire privileged ? A. Itis not. Greenl. Ev. § 249 (note). RuLrEs GOVERNING WITNESSES. 125 Q. Will the courts compel a witness to disclose secrets of state ? A. They will not. In Worthington v. Scribner, 109 Mass. 487, it is said: ‘‘Courts of justice, therefore, will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government.” Q. What other communications are considered as privi- leged? A. Mr. Greenleaf lays it down that ‘‘ official transac- tions between the heads of departments of state and their subordinate officers;” ‘‘ proceedings of grand juries, com- munications which are indecent or offensive to public morals, or injurious to the feelings or interests of third parties, the parties themselves having no interest in the matter,” are also excluded. See further as to communi- cations to grand jurors and secrets of state, Cooley’s Const. Lim. 425, et seg; and between clergymen and de- fendants, 1 Whart. Ev. § 596; 1 Greenl. Ev. § 247; 33 Am. Rep. 435 (note); Summers v. State, 32 id. 573; Pier- son v. People, 79 N. Y. 424; 35 Am. Rep. 524. As to the right of arbitrators to withhold the grounds of their de- cision, 1 Whart. Ev. § 599. On the subject of privilege as to other confidential matters, see Greenl. Ev. § 254; Boykin v. Boykin, 70 N. C. 262; 16 Am. Rep. 776; 1 Greenl. Ev. §§ 250, 237; Powell Ev. 52; 25 Am. Dec. 420 (note); 27 id. 334 (note); Bacon v. Frisbie, 80 N. Y. 394; 36 Am. Rep. 631. Q. Will a witness be allowed to testify to admissions or confessions improperly obtained ? A. Hewillnot. 1 Greenl. Ev. §§ 219-298; Powell Ev. $108; 20 Am. Dec.505 (note); State v. Garvey, 28 La. Ann. 925; 26 Am. Rep. 123; 1 Whart. Cr. Law, 686; Austin v. Ellis, 60 Ga. 520-1; Johnson v. State, 61 id. 305; Broughton v. Winn, 60 id. 486; Burns v. State, 61 id. 192. Q. What was the rule as to competency of a witness 126 Law AND PRINCIPLES OF EVIDENCE. having an interest in the result of the litigation, at com- mon law ? A. At common law, interest excluded the witness. Q. What is the rule generally adopted in the United States ? A. It is that the interest of the witness goes to his credibility and not to his competency, and that witnesses are not to be excluded merely on the ground that they have an interest in the result of the litigation. Q. Referring again to the subject of infamy as a dis- qualification in a witness offered to testify, what is meant by infamy ? A. In order to render the witness incompetent he must be convicted of an infamous crime. ‘‘It is the judg- ment,” says Mr. Greenleaf, ‘‘and that only which is received as the legal and conclusive evidence of the party’s guilt for the purpose of rendering him incompe- tent to testify.’’ Q. Where a part of the judgment is incompetency, and this is expressly provided for in the statute, does a pardon restore the competency of the witness ? A. It does not. ‘‘ Although the incapacity to testify, especially considered asa mark of infamy, may really operate as a severe punishment upon the party, yet there are other considerations affecting other persons which may well warrant his exclusion from the halls of justice. It is not consistent with the interests of others, nor to the protection which is due to them from the state, that they should be exposed to the peril of testi- mony from persons regardless of the obligation of the oath; and hence, on grounds of public policy, the legis- lature may require that while the judgment itself remains unreversed the party convicted shall not be heard as a witness.” Q. When is a question said to be leading ? A. Any question is leading which suggests the answer the interrogator desires the witness to make. Where, by the form of the question, the witness is made to RuLES GOVERNING WITNESSES. 127 understand distinctly the desired answer, it is subject to the objection of being leading and suggestive. It is where the questioner answers his own questions by using the witness as his mouthpiece. In other words, it does not leave the witness to walk alone, but leads him along the pathway to the point to be reached. It is not whether the question may be answered by yes or no, but whether it puts the witness, or tends to put him, in possession of the feelings and opinions of the counsel. Questions may be answered by yes or no, and yet not be, in any sense, leading. On the other hand, many very leading questions cannot be so answered. The ques- tions, ‘‘ Are you a married man? Are you the father of children ?” can be answered by yes or no, but they are not leading, for they are not suggestive. But the ques- tion: ‘‘If you were present at an encounter between the prosecutor and defendant, please give the size of the club with which defendant struck the prosecutor,” can- not be answered by yes or no, yet it is clearly leading, for it suggests to the witness that the defendant had a club and that he struck the prosecutor. The witness should be absolutely free to frame his own words with- out any hint or suggestion, wink or blink, from friend or foe. Q. Why should not leading questions be propounded to witnesses on their examination in chief? A. As indicated in the foregoing answer; if leading questions were permitted the result would often be to substitute the wishes and opinions of over zealous advo- cates and litigants for what would otherwise be the evi- dence of sworn witnesses, supposed to be impartial. Its tendency would be to obstruct and corrupt the only source through which the jury is to get possession of the facts. If the witness be left to his own resources the chances for cunning invention and prevarication are greatly lessened. If naturally disposed to wander from the plain path of truth he will generally find a rough and thorny way, and if left without aid or com- fort will return to the point of digression. But where 128 Law AND PRINCIPLES OF EVIDENCE. the witness has the way distinctly blazed by counsel he may wander at will without danger of pitfalls. Q. When may leading questions be asked on examina- tions in chief ? A. By permission of the court, when it becomes appar- ent that the party calling the witness has been misled by him as to the character of his testimony and has been entrapped, and that the witness is strongly and decidedly biased against him; or when the witness stubbornly evades or skillfully equivocates when questions are asked, and can only be fully drawn out by leading ques- tions. Q. Is it in the discretion of the court to permit counsel to ask leading questions under such circumstances ? A. Itis. Q. Are leading questions always allowable on cross- examination ? A. They are. The policy of the law seems to rest on the presumption that the witnesses called by the plaintiff or defendant are very liable to take sides or become par- tisans of the party calling them. The reasonable pre- sumption is that he fully understands all the facts to which they will testify; that he has fully discussed with them his side of the case, and has not only gained their sympathy and support but has thoroughly imbued them with his feelings and prejudices, and it is but natural that they should become more or less enlisted for the success of the party calling them. Q. What latitude should be allowed on cross-examina- tion, and why ? A. For the reasons indicated above and the additional reason that the other side is not supposed to be familiar with the facts within the knowledge of the adverse wit- nesses, the courts always permit cross-examinations to be thorough, sifting and exhaustive. The witness should be placed completely in the hands of opposing counsel and left to tread the wine-press alone. No matter how fiery the ordeal the examination should not be checked RULES GOVERNING WITNESSES. 129 so long as counsel confine it to the issues involved and do not wander into forbidden fields. Q. After a witness has testified in chief and has been cross-examined, can the party calling him again question him as to any new matter, not drawn out by the cross- examination ¢ A. He is generally confined to matter strictly in re- buttal, except to ask questions, by permission of court, which were unintentionally omitted on the examination in chief. Where counsel state in their place that the ques- tion was inadvertently, and not designedly, omitted, the court will generally allow the question. The enforcement of this rule is indispensable to the proper dispatch of busi- ness; for if new matter, not drawn out on cross-exami- nation, might be brought forward from time to time to be followed by a second and a third cross-examination, it might take weeks instead of hours to dispose of very simple issues. There are other reasons founded on sound policy why this rule should be enforced. Q., May one impeach his own witness ? A. He may where he satisfies the court that he has been entrapped. Q. May not the judge, in his discretion, ask questions of a witness ? A. He may, but should take care that in doing so he does not turn advocate instead of judge. Where mate- rial questions which might illustrate the issues have been omitted by counsel. the judge may very properly draw the attention of the witness to them; but he should ex- ercise great caution in doing so, lest he impress the jury, by his manner and tones, that he is taking sides. Q. What is the object of the rule which allows the separation of witnesses ? A. The object is to secure, as far as practicable, per- fect impartiality and to make the evidence of each wit- ness stand alone, and not to permit it to become warped and tortured so as to conform to the evidence of some other witness. In other words, one witness should not 17 130 Law AND PRINCIPLES OF EVIDENCE. be allowed to take his cue from some other witness or witnesses. Q. In order to secure to parties the full benefit of this rule, would it not be well to keep the witnesses separated until they have all been sworn ? A. It would. The practice of examining a witness in the absence of the other witnesses and then permitting him to mingle freely with them before they are brought to the stand, defeats, in many cases, the object of the rule. Q. May a jury ask a witness a question ? A. As the jurors are sworn to pass finally on the facts in evidence, there can be no good reason why they should not be permitted to propound any pertinent questions to the witness. The juror may possibly be in doubt ona material point, and if, by inquiry, that doubt can be re- solved, he should be allowed to ask the question. Q. Is there any limit to the number of witnesses which may be called ? A. There can be, in the very nature of the case, no fixed rule. It must very largely depend on the character and importance of the issues involved, and the peculiar nature of the question to which the examination is di- rected; but the court may very properly interpose to check the useless consumption of time, when it becomes evident that no good end can be subserved by multiply- ing witnesses. As a matter of course, the court should exercise such a discretion with abundant caution. Q. Is a witness bound to answer a question, the answer to which may criminate him or expose him to public contempt, hatred and ridicule ¢ A. He is not. It has been held by high authority, how- ever, that where one offers himself to disprove a criminal charge he is bound to answer pertinent questions, al- though the answer may criminate him. Where the answer to a question would criminate the witness it is the bounden duty of the court to instruct him that he is not compelled to answer. Many ill-informed or ignorant RULES GOVERNING WITNESSES. 131 persons are under the impression that they are bound to answer all questions propounded. To such persons the court owes a duty to see to it that they are properly cau- tioned in reference to criminating answers. On this sub- ject, see 1 Whart. Ev. § 533, and following authorities cited. Rex v. Friend, 13 How. St. Tr. 16; Rex v. Mac- clesfield, 16 id. 1146; Low v. Mitchell, 18 Me. 372; Coburn v. Odell, 30 N. H. 540; Eaton v. Farmer, 46 id. 200; Chamberlain v. Wilson, 12 Vt. 491; Com. v. Kimball, 24 Pick. 366; People v. Rector, 19 Wend. 569; Byass v. Sul- livan, 21 How. Pr. 50; Printz v. Cheney, 11 Iowa, 469; Higdon v. Heard, 14 Ga. 255; Pleasant v. State, 15 Ark. 624; State v. Marshall, 36 Mo. 400. Q. May any presumption of guilt be drawn from the fact that a party refuses to answer ? A. It may not. Q. May a witness waive this privilege and make an- swer ? A. As itis merely a privilege of the witness he may answer or not. The court or his counsel may instruct him as to his rights, but he may answer, notwithstanding. The witness himself must claim the privilege. It is held that when the questions tend to criminate, the witness need not answer. Q. Where a witness has made a statement, and on re flection desires to modify or withdraw it, may he be re- called for that purpose ? : A. He may, and the court will generally allow the wit- ness to make any correction he deems proper, provided the application is made in time. Q. May the testimony of a witness, delivered on a former trial, between the same parties on substantially the same issues (the witness being dead or beyond the jurisdiction), be given in evidence by another witness who heard him and who will swear that he remembers the substance of his testimony ? A. It may be received; but the courts should be satis- fied that the reproducing witness really remembers all 182 Law AND PRINCIPLES OF EVIDENCE. the material evidence delivered by the dead witness. If he only remembers a part, his testimony should be ex- cluded, although there be other witnesses who profess to remember the other part of the testimony. The parties should be the same, either nominally or in fact. Q. May a witness be examined as to his feelings to- ward the parties against whom he testifies, whether friendly or unfriendly ? A. The well-established rule is that a witness may be required to state his feelings toward either party, but may not state the reasons for his likes and dislikes. He may say whether he is friendly or unfriendly or whether his feelings are kind or unkind. If he were permitted to give his reasons it would form grounds for new issues and thus confuse the real question. The object of such evidence is simply to determine whether the witness is prejudiced, and with the reasons for his bias the courts have nothing to do. Q. Where counsel differ as to what a witness has sworn, how should the contention be settled ? A. The usual practice is to recall the witness. If this, however, be impracticable, the court may leave the ques- tion to the jury. The safer and better rule is to recall the witness and allow him simply to repeat what he swore. He should not testify over, but simply repeat the former statement. Q. Suppose a witness, called and examined by one party, is recalled by the other party simply to ask a question, inadvertently omitted in the cross-examination, does such witness, for that reason, become the witness of the party recalling him ? A. He does not. But where the witness is examined on original matter he does become the witness of the party recalling. If the matter is new and such as was not elicited on his examination in chief, then the rule applies. Q. In general, how may a witness be impeached # A. We have already adverted to this subject. It will be sufficient to say that a witness may be impeached by RULES GOVERNING WITNESSES. 133 showing by those who live in the same community that in that community his character is bad, and that from that character they would not believe him on his oath. The witness should first be asked if he is acquainted with the character of the person in the community in which he lives or recently lived; if he answers affirmatively he should be asked whether the character is good or bad ; if he answers that it is bad, he may then be asked if he would believe him on his oath. It is held that the impeaching witness should reside in the same commu- nity and that it will not do to send a non-resident in the community to ascertain character. The witness should not swear from what he knows himself, but from what he .has heard others say as to the character of the wit- ness to be impeached. Q. May the witness be asked, on his examination in chief, as to his knowledge of any disreputable or crim- inal conduct of the party attacked, or as to what he has heard others say of such conduct ? A. It would not be proper to interrogate in this man- ner. On cross-examination the sources of the witnesses’ knowledge may be fully explored, and he may be asked to furnish the names of persons who have talked about the person and what they said, but not as to his personal knowledge; for it is simply a question of reputation, or what others say, that forms the basis of impeach- ing evidence. The witness is called to show general reputation. If he were permitted to state what he knows, new issues would be sprung and there would be no end to the evidence pro and con. He is not called on to vouch for the truth of what he has heard, but simply to state whether, from what he has heard, the reputa- tion of the person is bad. There are other modes of impeaching witness already noticed. It may be proper to say that where it is sought to impeach by showing that he has made contradictory statements, the state- ments must be as to some matter material and not as to mere collateral matter; for if a witness answers as to collateral matters he cannot be contradicted. In order 134 Law AND PRINCIPLES OF EVIDENCE. to impeach, by contradictory statements, the attention of the witness should be distinctly called to the time, place and circumstances under which he made the state- ments, and he should be asked if he made such state- ments. If he deny it, it may be shown that he did. The witness should, however, be allowed full latitude to explain what he did say and what he meant by saying it, and detail all the circumstances. If it be sought to con- tradict him by his own writing he should be allowed full opportunity to inspect the writing and to explain it by fully detailing the circumstances under which he signed it, if he did sign it, and whether he knew its contents, or whether it was signed on account of duress or as the result of fraudulent representations made by the holder as to its contents. The witness may also show that he made the previous representations or signed his name to the writing under an honest mis- apprehension of the facts as they really existed, and that he was honestly mistaken in his first statement. This latter mode of impeachment is open to many seri- ous objections and should have little weight unless the jury is satisfied that the witness has deliberately lied. Q. How may the impeached witness be sustained ? A. By proof of good reputation. This may be shown by persons who know his reputation, will swear that it is good, and that, from such reputation, they would be- lieve him on his oath. Here again, the witnesses must testify from what they have heard and not from what they know. Like the impeaching witnesses they simply testify to their convictions, based on the reputation the person bears. It is now generally held that the witness may state that he has never heard anything bad of the impeached witness. This amounts to saying that his reputation is good. 1 Whart. Ev. § 569, and numerous authorities there cited. On the impeachment of witnes- ses, see Elam v. State, 25 Ala. 53; People v. Rector, 19 Wend. 569 ; Keator v. People, 32 Mich. 484; Polack v. Pioche, 35 Cal. 421; Stoker v. State, 18 Ga. 17; Greenl. Ev. § 461, et seq. RuLES GOVERNING WITNESSES. 135 Q. May the reputation of the witness, whose character is assailed, be shown in the community at any time? A. There is no fixed rule as to the time to which the investigation should be confined. As a matter of course the proof of reputation should be restricted to some rea- sonable period. It would not be proper to ask as to the reputation of a party ten or fifteen years before the trial; for the witness may have reformed. The question is, ought the witness to be believed now from the reputation he now has. The proof ought to show that his reputa- tion is bad, and refer to the reputation at some reasonable time before the trial, so that it may be fairly presumed that it continues to be bad up to the time of the trial. Q. May the bias and prejudice of a witness be also shown in order to discredit him ? A. It may. It may be shown that he has had personal difficulties with a party ; but the cause of the difficulty cannot be gone into. Q. May contradictory statements always be shown ? A. As stated above they may. ‘‘ A witness may be cross-examined as to a former statement made by him relative to the subject-matter of the cause, and inconsistent with his present testimony, and if he either denies, or does not distinctly admit, that he has madesuch statement, proof may be given that he did, in fact, make it ; but be- fore such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement.” Taylor Ev. § 1445. Q. May a witness always be recalled for the purpose of laying the foundation for his impeachment ? A. He may. Unless the foundation be legally laid no impeachment can follow. Q. Where it is impossible to produce the writing by which it is sought to contradict the witness, may he be asked if he wrote or signed a certain writing, stating its contents ? 136 Law AND PRINCIPLES OF HVIDENCE. A. He may, and its contents may be shown by second- ary evidence to contradict him. Where the object is to discredit the witness by showing contradictory state- ments in a plea or deposition on file in court, the original should be exhibited to the witness and not the copy. The deposition or plea should first be read to him before he is asked whether he made such and such a statement. Q. Where a party or witness for the purpose of dis- crediting him is asked whether he has committed a crime, and answers in the negative, is his answer conclusive ? A. Except in cases of conviction it is. ‘‘ Collateral im- putation can neither be disproved on the one hand nor supported on the other by independent evidence.” ‘‘ The rule,” says Taylor, ‘‘is founded on two reasons: first, that a witness cannot be expected to come prepared to defend all the actions of his life; and next, to admit contra- dictory evidence on such points would, of necessity, lead to inextricable confusion by raising an almost endless series of collateral issues.” Q. Supposing a witness fairly impeached, may the jury still believe him ? A. It may. If his statements be reasonable and con- sistent, and are supported by the. circumstances, he may be believed in preference to the unimpeached witnesses. Q. Where some witnesses impeach, and others sustain the witness, who is to determine whether he has been successfully impeached, and the weight to be attached to his evidence ? A. The jury. Q. May a witness be contradicted by proof of previous statements without having his attention directed to them ? A. He may where it is not sought to impeach. Q. May it be shown that he has been convicted of an infamous offense ? A. It may. Q. Where a witness has been duly summoned to attend court, is one in contempt of court who interferes to pre- RULES GOVERNING WITNESSES. 137 vent him or persuades or threatens him in order to keep him from attendance ? A. He is, and may be punished as for a contempt. Q. May witnesses be ordered out of court at any stage of the trial on motion of either party ? A. They may, and it is a contempt to return without the order or permission of the court. But it is not gen- erally regarded as sufficient ground for rejecting their testimony. Q. Mention some instances in which leading questions are allowed ? A. Where a witness is hostile to party calling him; where attesting witness is called; where the question is asked simply to refresh the memory of the witness; where it is necessary to identify a party; where witness is of tender age, or where justice requires it. Taylor Ev. 8§ 1197-1198. Q. May a witness give his belief or opinion ? A. He may not unless he is an expert, and then only in matters involving questions for expert testimony. Q. In what cases may a non-expert give opinions ? A. In matters of handwriting, or to prove identity, or to show the attachment of husband and wife, or the sanity of a testator. Taylor Ev. §§ 1207-1208. Q. May a party, as a general rule, discredit his own witness ? A. He may not. If he has been misled or entrapped, on application to the court, he will be allowed, not only to ask leading questions, but to contradict. Q. Are leading questions allowed on cross-examination without any restrictions ? A. They are not. Counsel should not be allowed to put words in the mouth of the witness, nor should they as- sume that certain facts have been proven which have not been proven. Where it appears that the witness is de- cidedly hostile to the party calling him and is the ready tool of the other side, the court, in the exercise of a sound 18 138 LAW AND PRINCIPLES OF EVIDENCE. discretion, may deny to the cross-examiner the right to ask leading questions. Q. In cross-examinations, can the witness be examined on questions not drawn out on the examination in chief ? A. He may be. There is some conflict of authority of this point, however. The court will not permit irrele- vant or vexatious questions to be put on cross-examina- tion, nor will they allow the witness to be contradicted on collateral matters. Where the questions are relevant the witness may be contradicted, but not where they are irrelevant. Q. What are considered irrelevant questions, the an- swer to which cannot be contradicted ? A. ‘Questions as to motives, interest or conduct of witness; questions tending to impeach impartiality of witness; questions as to whether witness has received a bribe; questions as to witness being plaintiff’s mistress.” Taylor Ev. §§ 1231-1234. Q. Where a party declines to testify about matters with which he is conversant, what presumption does it raise ? A. It authorizes a presumption against him. Q. May one party call another as a witness ? A. He may. Q. Where counsel desire to argue the admissibility of evidence, may the court, on request, order the jury to retire ? A. It may. Q. Suppose a witness refuses to answer a pertinent legal question ? A. He may be attached and punished as for a contempt of court. Q. May a witness state mere conclusions of law or fact, or be permitted to state his opinions as to the motives which influenced the conduct of others ? A. Such evidence will not be received. Q. Will a witness be allowed to construe a contract ? _— RULES GOVERNING WITNESSES. 139 A. He will not, for this is peculiarly the province of the court. Q. May a witness give opinions or should he simply state the facts without giving opinions or stating con- clusions ? A. As a general rule, non-expert witnesses cannot give opinions, but in many cases the witness may give his opinion, provided he state the reasons on which the opinion is founded. Thus, on questions of sanity, the witness may set forth his reasons and then state his opinion as to the sanity or insanity of the party. Ex- perts in any science or trade may give opinions without giving the reason. Duration, distance, veracity, value and many other like things are necessarily proven by the opinions of witnesses. Any witness may state his opinion as to the value of a horse without giving his reasons. On cross-examination the witness may be thoroughly sifted and his reasons inquired into. Soa witness may give his opinion as to the speed at which a train was moving or as to distance. Another exception is made in the case of testamentary capacity on an issue of devisavit vel non. In such case the witness may give his opinion as to the soundness or unsoundness of testator’s mind or as to his capacity or want of capacity at the time of the execution of the will. Q. May a witness refresh his memory by referring to memoranda in his possession ? A. He may; and for this purpose he may inspect and read the memoranda. Q. Where the witness, after inspection of memoranda, can then swear to the facts from memory so refreshed, and independent of the memoranda, may the other side demand inspection of the paper ? A. They may not. If, however, the witness swears from the paper and not from memory refreshed by the paper, the paper is the best evidence and must be pro- duced. Where the witness swears that he has no recol- lection, independent of the notes made by him at the 140 Law AND PRINCIPLES OF EVIDENCE. time of the transaction or occurrence; that he can posi- tively identify the memoranda and knows them to be correct; that he was in the habit of making notes of such transactions, the memoranda should not be ex- cluded, and the witness may swear that the facts set forth in it are true. Q. Where notes or book entries are thus used to re- fresh memory, are they admissible in evidence ¢ A. They may be, but this would depend on whether the notes were made at the time of the transaction to which they refer and whether they have been properly identi- fied and are free from other objections. ‘‘ Though a witness may testify only to such facts as are within his knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum or entry in a book, and may be compelled to do so if the writing is present in court. It does not seem necessary that the writing should have been made by the witness himself, nor that it should have been an original writing, provided, after inspecting it, he can speak to the facts from his own recollection. So also where the witness recollects that he saw the paper while the facts were fresh in his memory and remembers that he then knew the particulars were correctly stated. And itis not necessary that the writ- ing thus used to refresh the memory should itself be admissible in evidence, for if inadmissible in itself as for want of stamp, it may be still referred to by the witness. But where the witness neither recollects the facts nor remembers to have recognized the written statement as true, and the writing was not made by him, his testi- mony, so far as it is founded on the written paper, is but hearsay, and a witness can no more be permitted to give evidence of his inference from what a third person has written than from what a third person has said.” Greenl. Ev. § 436. Mr. Greenleaf divides the writings which may thus be used into three classes. First. Where the sole object is to refresh. Here it is not necessary to produce the writing. RULES GOVERNING WIINESSES. 141 Second. Where the witness remembers to have seen the writing, though he does not now remember its contents, except from the writing, but does remember its contents were true at the time he saw it. Here the writing must be produced so that witness may be properly cross ques- tioned. Third. Where the witness does not remember anything about the writing except that it is genuine, and swears to its contents because it is genuine. Q. Who are considered the witnesses of a party ? A. Those who are sworn in chief by him. Q. It has been said that where a mere collateral fact is proven by the cross-examination, the defendant will not be permitted to contradict the answer, what is the best test as to whether a matter is collateral ? A. “The test of whether a matter inquired of on cross- examination is collateral is, would the cross-examining party be entitled to prove it as a part of his case, tend- ing to establish his plea.” Q. Supposing the credit of the witnesses to be equal, their intelligence and opportunities of observation equal, what is the rule? A. It isa common observation that witnesses are to be weighed and not counted, but when their weight is the same it is not improper to consider numbers. It is more likely that eight or ten witnesses who witnessed a transaction or occurrence should report it correctly than that one or two should do so, however truthful they may be. There may be a strong probability that one or two witnesses are mistaken; but this probability is lessened as the number of witnesses is increased, supposing the persons offered to be free from bias and prejudice and disposed to speak the truth. Q. Referring to the matter of confidential communi- cations between husband and wife, we have seen that neither will be forced to disclose them; but suppose that a third person overhears the conversations, will he be permitted to state what he heard ? A. He will; and where the confidential correspond- 142 Law AND PRINCIPLES OF EVIDENCE. ence of husband and wife is brought into court by a third party, it has been held by respectable authority that it is not protected, and that it will be received. At common law, neither husband nor wife was competent to testify against each other after proof of the mar- riage. Q. May either be introduced to prove the marriage ? A. They may. Q. May the wife be forced to testify to a collateral matter which may criminally implicate her husband ? A. On this question there seems to be much conflict of judicial authority, but the very great weight of author- ity is in favor of the negative. If the wife be incompe- tent to testify for or against him when he stands directly charged with crime, it is difficult to perceive the reason for forcing her to state facts in a collateral proceeding tending to criminate him. This would be to accom- plish by indirection what could not be accomplished directly. Q. What is the general rule as to experts giving opin- ions ? A. The well-established rule is that an expert can give his opinion on any matter connected with his trade or profession, and which involves questions of skill in that profession. Take the case where it becomes important to show what the law of a foreign country is or what the practice of a foreign jurisdiction is, in any case, a person well skilled in the laws of that country may tes- tify to what the law and practice are. Or where medical skill is involved, the physician may give his opinion ; for example, he may state whether a person died of a cer- tain wound or death ensued from some other cause, or he may state whether a person was sane or insane at the time of committing an act, or he may give his opin- ion on a hypothetical case. The opinions of military or scientific men may be given in questions involving mili- tary or scientific skill. But an expert will not be per- mitted to give his opinion in a matter not involving RuLES GOVERNING WITNESSES. 143 skill, and where one person’s opinion may be supposed to be worth as much as another’s. Q. Take the common case of a spark arrester on an engine, where the question is whether the spark arrester is up to the standard, and is reasonably calculated to prevent the escape of sparks, may not one who is familiar with the mechanism give his opinion as to its adaptabil- ity for the purposes intended? A. He may. After an engine, boiler or spark arrester have been described to the witness, he may then give his opinion on the hypothetical case as to whether it is sufficiently up to the standard. Q. What is the general rule on this subject ? A. ‘‘ Witnesses conversant in a particular trade may be allowed to speak toa prevailing practice in that trade; scientific persons may give their opinions on matters of science; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor of the manner in which others would probably be influ- enced if the parties had acted in one way instead of another.” Q. May experts be fully questioned on the direct or cross-examination as to the grounds for the opinions they entertain, or be contradicted by other experts ? A. They may. Experts may give their opinions within the line of their specialties, but may be exam- ined either as to their knowledge of the science with which they profess to be familiar, or as to the soundness of their conclusions. For this purpose scientific works may be exhibited to them and they may be asked whether such works are good authorities, and the books may be used arguendo to show any conflict between the expert and the author. Q. What is necessary in order to the force of medical expert testimony ? A. “Physicians are bound to exercise the skill and possess the preparation usual to good practitioners of the school to which they belong. If they have become 144 Law AND PRINCIPLES OF EVIDENCE. familiar with such laws of their profession as bear on the issues, they may testify how the issue is affected by such laws.” Whart. Ev., Tit. Experts. The same rule applies to other trades and professions, and it should always appear that the expert possesses peculiar skill on the subject under investigation as distinguished from the common run of men; otherwise his opinions, even if received, are entitled to very little respect. In other words, a person to be an expert, must be an expert. Q. Is there any settled rule by which to determine what degree of skill or scientific knowledge one must possess to authorize the admissions of his opinions in evidence ? A. There is not. It ought certainly to appear that such witness possesses peculiar skill and knowledge, which pre- eminently fit him to speak authoritatively on the ques- tions at issue. Great learning, long and intimate acquain- tance with the matters in question, and keen observation will furnish good ground for the admission of the opinions. of the expert. But the knowledge and experience must have relation to the question to be illustrated. If the question is one in the line of his profession, and he appears. to possess peculiar skill, his opinions ought clearly to be entitled to much weight. Q. Are there not many matters open to common obser- vation on which the bare opinion of experts will not be received ? A, There are. There are also many questions, as be- fore indicated, on which any witness may express an opinion. What is good farming, for instance; what is. proper and sufficient food for stock; what is the value of any animal or thing; what is the value of land, or what is a fair rental; what was the speed at which a train was. moving; what is the best season for sowing or reaping, and many other questions of a like kind do not require: expert testimony. Q. Is it practicable to enumerate or classify the cases. which invite expert testimony ? RULES GOVERNING WITNESSES. 145 A. It is not. It is allowable, as previously stated, on scientific questions with which the masses are not sup- posed to be familiar. A civil or mechanical engineer may give his opinion as to whether a railroad or other bridge is properly constructed; whether it is safe or unsafe; whether the track of a railroad has been laid according to approved scientific rules; whether the roadbed is safe, or whether curves in the track are proper; or whether a proposed route for a railroad or canal is practicable. An architect may give his opinion as to the safety of a build- ing, and whether it was properly constructed; a ship- builder may give his opinion as to whether a vessel is seaworthy; a physician may state whether a person died of wounds or from poison, or as the result of natural causes; a dentist may give his opinion as to whether a tooth was properly plugged; a veterinary surgeon as to whether a horse died of grubbs, or blind staggers, or colic, or from overwork; a chemist as to whether a mixture contains poison; whether water is pure or impure. In all these cases, however, it is presupposed that the person giving the opinion has peculiar skill and knowledge in his trade or profession. Q. May an expert refresh his memory by reference to professional or scientific treatises ? A. He may, and he may be contradicted by them. Q. Where the question is whether a signature is forged, may the expert compare the alleged feigned hand with the genuine signature in order to pronounce his opinion ? A. He may. Orhe may form his opinion of the forged signature with the signature of the forger as written in court. See the following authorities on expert testimony : 1 Whart. Ev. §§ 434-454; Steamship v. Baillie, 92 U.S. 31; Gaylor’s Appeal, 43 Conn. 82; 1 Whart. Ev. § 509; Hopkins v. R. Co., 78 Il. 82. Where expert is not allowed to state conclusions. Milwaukee R. Co. v. Kellogg, 94 U. S. 469; Mayhew v. Sullivan, 76 Me. 100; Rawlsv. Ins. Co., 27 N. Y. 282; Baltimore Co. v. Neal, 65 Md. 438; Chicago R. Co. v. Moranda, 108 Ill. 576; Thompson v. Deprez, 96 Ind. 67 ; Mc- 19 146 Law anp PRINCIPLES OF EVIDENCE. Kay v. Overton, 65 Tex. 82; Com. v. Piper, 120 Mass. 188. Expert not to be examined as to measure of damages. Houston R. Co. v. Burke, 55 Tex. 323; Muldraugh Co. v. Maupin, 79 Ky. 101; Swan v. County, 101 Mass.173. Ex- pert testimony not to be used in matters open to common observation. Milwaukee R. Co. v. Kellogg, 94 U. 8. 469; State v. Watson, 65 Me. 74; Missouri R. Co. v. Mackey, 33 Kans. 298; Rawls v. Ins. Co., 27 N. Y. 282. Opinions to be confined to the specialty of expert, and court to de- termine whether person is expert. Delaware Co. v. Starrs, 69 Penn. St. 41; State v. Cole, 74 N. C. 958; Tesney v. State, 77 Ala. 33; St. Louis R. Co. v. Edwards, 26 Kans. 72. As to right to read books to refresh memory of ex- pert. Com. v. Sturtivant, 117 Mass. 122; Cory v Silcox, 6 Ind. 39; Harvey v. State, 40 id. 516; Ripon v. Bittel, 30 Wis. 614. Putting in evidence scientific authorities. Bloomington v. Shirock, 110 Ill. 219; Ripon wv. Bittel, 30 Wis. 614. Cross-examination of experts. Hinds v. Har- bon, 58 Ind. 121; Benedict v. Fond du Lac, 44 Wis. 495; Weaver v Alabama Co., 35 Ala. 176; Davis v. State, 35 Ind. 496; Mincke v. Skinner, 44 Mo. 92; Whart. Cr. Ev. § 496. Necessity of previous examination to show person is an expert, see above authorities. As to extent of knowledge of trade or profession, see Spiva v. Stapleton, 38 Ala. 171; Davis v. State, 35 Ind. 496; Roberts v. John- son, 58 N. Y. 613; Consolidated Co. v. Cashow, 41 Md. 59; State v. Wood, 53 N. H. 484. Cases cited in which he may testify. 1 Whart. Ev. § 489; Benson v. Griffin, 30 Ga. 106; State v. Cole, 63 Iowa, 695; Mincke v. Skinner, 44 Mo. 92; Hastings v. Rider, 100 Mass. 622. Non-experts giving opinions, after giving reasons. Dickenson v. Bar- ber, 9 Mass. 225; Gardiner v. Gardiner, 34 N. Y. 155; Clapp v. Fullerton, id. 190; Dorsey v. Warfield, 7 Md. 65; Dicken v. Johnson, 7 Ga. 484; Walker v. Walker, 14 id. 242; Potts v. House, 6 id. 324; Johnson v. State, 17 Ala. 618; Haney v. Clark, 65 Tex. 94. Experts may some- times be required to give facts on which opinions are founded. See above authorities. On questions of sanity, Delafield v. Parish, 25 N. Y. 9; Choice v. State, 31 Ga. RULES GOVERNING WITNESSES. 147 424; Heald v. Thing, 45 Me. 392; Russell v. State, 53 Miss. 368. In cases of intoxication any one may give opinion. State v. Pike, 49 N. H. 399; State v. Huxford, 47 Iowa, 16; Piers v. State, 53 Ga. 365; Stanley v. State, 26 Ala. 26. As to hypothetical cases put to expert. Choice v. State, 31 Ga. 424; Harnett v. Garvey, 66 N. Y. 641; Jerry v. Townshend, 9 Md. 145; Davis v. State, 35 Ind. 496; Bishop v. Spining, 38 id. 143; Crawford v. Wolf, 29 Iowa, 567; Wilkinson v. Mosley, 30 Ala. 562; Caleb v. State, 39 Miss. 722; State v. Klinger, 46 Mo. 224. Testi- mony of experts to be zealously guarded. Watson v. An- derson, 13 Ala. 202; Eggers uv. State, 57 Ind. 461. Q. Referring again to communications between client and attorney, suppose the client wishes to violate the law and consults the attorney for his advice as to the best means to accomplish his purpose ? A. There is no privilege in such cases. ‘‘ Where a solicitor is party to a fraud, no privilege attaches to the communications with him on the subject, because the contriving a fraud is no part of his duty as a solicitor.” People v. Van Alstine, 57 Mich. 69; Graham v. People, 63 Barb. 483; Annesley v. Earl of Anglesea, 17 How. St. Tr. 1139; 1 Phil. Ev. § 171. Q. Where a testator communicates facts to his attor- ney, are these facts privileged communications ? A. They are not. Scott v. Harris, 113 Ill. 447; Higbee v. Dresser, 103 Mass. 523. Q. Are communications between parties and their wit- nesses protected ? A. On this question there is great conflict of authority, but the weight of authority is in the affirmative. Ham- ilton v. Nott, L. R. 16 Eq. 112; 1 Whart. Ev. § 594. Q. May a telegraph company be forced to produce the originals of dispatches in court? A. As such dispatches are not protected, it may. Ex parte Brown, 72 Mo. 83; Nat. Bank v. Nat. Bank, 7 West Va. 544; State v. Litchfield, 58 Me. 267; Com. v. Jeffries, 7 Allen, 548. 148 LAW AND PRINCIPLES OF EVIDENCE. Q. Where parties put negotiable paper in circulation, in the regular course of trade, may they impeach it ? A. They may not. Lincoln v. Fitch, 42 Me. 456; Walton v. Wetherill, 43 Ill. 388; Fox v. Whitney, 16 Mass. 118. It is held by many of the courts that a maker, acceptor or indorser is not precluded from impeaching by the fact that he signed the negotiable paper. Buck v. Appleton, 14 Me. 284; Barker v. Prentiss, 6 Mass. 480; Penny- packer v. Wineberger, 22 Penn. St. 492. See contra, 1 Kent’s Com. 383, et seq. As to facts communicated to ones spiritual adviser, see Knight v. Lee, 80 Ind. 201; People v. Gates, 13 Wend. 323; 1 Whart. Ev. § 597; Steph. Ev. § 171; Best Ev. §§ 583-4; Gillooly v. State, 58 Ind. 182. As to competency of grand jurors to prove what took place before them, see Gordon v. Com., 92 Penn. St. 216; Bressler v. People, 117 Ill. 423; Rocco v. State, 37 Miss. 357; People v. Young, 31 Cal. 564; Tindle v. Nich- ols, 20 Mo. 326, 388; Way v. Butterworth, 106 Mass. 75; Rowe v. Canney, 139 id. 41; Crowe v. Peters, 63 Mo. 429. Q. May a juror impeach his own verdict ? A. He may not. Follansbee v. Walker, 74 Penn. St. 309; Hewett v. Chapman, 49 Mich. 4; Hannum 2. Belcher- town, 19 Pick. 311. Q. May a juror, who is trying a case, be sworn as a witness ? A. He may be. Sam v. State, 1 Tenn. 61; Howser 2v. Com., 51 Penn. St. 332; Dunbar 2. Parks, 2 Tyler, 217; Rex v. Heath, 18 How. St. Tr. 123. Q. As toall private conferences between officials in the different departments of the government; between the governors of the different states and the officials asso- ciated with them, and between the members of congres- sional and legislative committees, when concerned in the investigation of state matters, what is the rule? A. Such communications are generally held to be pro- tected. 1 Greenl. Ev. § 251; Totten v. United States, 92 U.S. 105; Whart. St. Trials, 662; Hartranft’s Appeal, 85 RuLES GOVERNING WITNESSES. 149 Penn. St. 433; Thompson v. R. Co., 22 N. J. Eg. 111; Plunkett v. Cobbett, 29 How. St. Tr. 71. Q. Were communications made to physicians by their patients protected at common law ? A. They were not. In the United States such commu- nications are not generally protected. There is much conflict of authority on this point, however. In People v. Murphy, 101 N. Y. 126, and Masonic Assn. v. Beck, 77 Ind. 203, they are held to be privileged. It has also been held that where others are present and hear the commu- nications between physician and patient, the communi- cations are privileged. Edington v. Ins. Co., 67 N. Y. 185; Dilleber v. Ins. Co, 69 id. 256. In some of the states it is held that an injured person's statement, made at the time of a railroad wreck to the company’s surgeon, are privileged. Raymond 2. R. Co., 65 Iowa, 152; Grat- ton v. Ins. Co., 80 N. Y. 281; 92 id. 274; Conn. Ins. Co. v. Union Trust Co., 112 U.S. 250. But the privilege may be waived by the patient. Grantside v. Ins. Co., 76 Mo. 446; Groll 2. Tower, 85 id. 249. Statements made as to bodily pain may be received. Penn. Ins. Co. v. Wiler, 100 Ind. 92; Grand Rapids Ins. Co. v. Martin, 41 Mich. 667; Scripps v. Foster, id. 742; Fraser v. Jennison, 42 id. 206. See 1 Whart. Ev., title Experts, from which fore- going authorities are taken. Q. What is the constitutional provision as to the right of a defendant to be confronted by the witnesses against him ? A. Article I of the Constitution of the United States provides that no person shall be held to answer for a capital or otherwise infamous crime, unless on a present- ment or indictment of a grand jury, except in cases aris- ing in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offense, to be twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case. to be a witness against himself; nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. 150 Law AND PRINCIPLES OF EVIDENCE. Article VI provides that in all criminal cases the ac- cused shall enjoy the right to a speedy and public trial, by an impartial jury, of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be in- formed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have com- pulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Q. In the trial of criminal cases must the witnesses against a defendant always be examined in the presence of the defendant? A. They must. Where the evidence of a deceased wit- ness is reproduced this provision is not violated; for all that is done in such case is to reproduce what the de- ceased witness did swear in the presence of the defend- ant on a former trial. It has sometimes been a question whether the defendant must necessarily be confronted by the witnesses for him, and whether it would not be allowable to take the testimony of such witnesses out of the defendant’s presence. It might be a difficult matter, however, to determine who are the witnesses for him, for a part of their testimony might be for, and a part against him. The doctrine, in practice at least, seems to be well settled that the defendant must be confronted by the witnesses for and against him. Q. Is not the court always bound to furnish compul- sory process to the defendant. for the purpose of procur- ing the attendance of his witnesses ? A. It is, and any denial of this right to the prejudice of the defendant will work a reversal. All the states have provisions in their Constitutions in reference to the right of defendants to be confronted by the witnesses, and the right to compulsory process, similar to those found in the Constitution of the United States. Q. May not the courts, in criminal cases, require wit- nesses to give bonds to appear at court and testify ? A. They may. RULES GOVERNING WITNESSES. 151 Q. When a witness is duly summoned to attend court, in a civil case, and refuses to do so, and the party on whose behalf he was summoned sustains damages, may he sue for and recover it ? A. In some of the states it is held that a special action on the case will lie. Q. May witnesses be forced to appear before grand juries and to testify ? A. They may. They may also be forced to attend the sessions of committees appointed by congress, of the leg- islature of any of the states, when such committees are empowered to call for persons and papers, and to give evidence of any facts within their knowledge, bearing on the subject-matter under investigation, and such wit- nesses may be punished for contempt of the orders of such duly constituted committee, in the same manner as for contempt of the processes of ordinary courts. Such committees may issue subpoenas, swear all witnesses brought before them, and perform any act not beyond the authority vested in them by the act creating them. Q. What is perjury ? A. ‘‘Perjury is the willfully, knowingly, absolutely and falsely swearing, either with or without laying the hands on the bible, or affirming in a matter material to the issue or point in question, in some judicial proceed- ing, by a person to whom a lawful oath is administered.” Q. What is false swearing ? A. ‘‘False swearing is the willfully, knowingly, abso- lutely and falsely testifying, either with or without lay- ing the hands on the bible or affirming in any matter or thing, other than a judicial proceeding, by a person to whom a lawful oath or affirmation is administered.” Q. What then is the real distinction between perjury and false swearing ? A. In the former case it must be shown that the fact sworn to was in some judicial proceeding. In the latter, it is not necessary that it should be in a judicial proceed- ing. In each case, however, the oath should be ad- 152 Law AND Principles or EVIDENCE. ministered by some person authorized to administer oaths. Nor is it necessary in either case that the witness should lay his hand on the bible. All that the law requires is, that he should take an oath to swear to the truth. Q. How many witnesses are necessary to sustain the charge of perjury ? A. Two witnesses ; but there has been a relaxation of the rule, and it is now almost universally held, that one witness, with strong confirmatory circumstances, is sufficient. The confirmation must relate to material matters testified to by the other witness. Confirmation in immaterial matters will not do. It is also held that where there are several assignments in a bill of indictment there must be confirmation as to each. Q. Is it necessary that there should be two witnesses or one witness, and confirmatory circumstances as to all the facts necessary, to establish the charge of perjury ? A. It is not. Such confirmation is only necessary on the question of falsity. Q. May a witness be convicted of perjury, who merely swears to his belief ? A. He may. It is more difficult to establish it in such case than where one swears positively, but this will not change the rule. One who swears that in his opinion a signature is forged, may be convicted of perjury as well as one who swears to any other fact. Q. In order to convict on this charge, must it not appear that the fact sworn to was material ? A. It must be on a matter material to the issue. Q. Who must determine the materiality of the fact sworn to ? A. The court. Q. In what do the proofs consist in trials for prejury ? A. ‘First, the authority to administer the oath ; sec- ondly, the occasion of administering the oath ; thirdly, the taking of the oath; fourthly, the substance of the oath; fifthly, the materiality of the matter sworn ; RULES GOVERNING WITNESSES. 153 sixthly, the falsity of the matter so sworn ; seventhly, the corrupt intention of the defendant.” Stark. Ev. 1134. In the first place, the court must have had authority to administer the oath; for if the person ad- ministering had no authority to administer the oath, there can be no perjury. In the next place, the oath must be taken in some judicial proceeding, before a court or other tribunal having judicial functions and competent legal authority to pass on the issues involved; otherwise, it would be false swearing and not perjury. In the next place, it must appear that the oath was taken, that is, that the person was sworn according to the prescribed forms, and actually took the oath, or that he solemnly affirmed. In the next place, the substance of the oath, so taken, must be shown. In the next place, the materiality of the fact sworn to must appear ; for if it were merely collateral and immaterial. and could not have affected the issue one way or another, the charge of perjury cannot be sustained. In the next place, it must be shown by the witnesses, or one witness and confirm- atory circumstances, that what the witness did swear was absolutely false ; for if there be reasonable doubt as to its truth, orif there are two constructions which may be fairly placed on the language of the witness, one open and the other not, to the charge of falsity, the latter should be adopted. In the next place, it should appear that the witness knowingly and corruptly swore to what was false ; for if he did not know it was false, and was hon- estly impressed with the truth of his statement, he was simply mistaken, and that is the end of it. Q. What is subornation of perjury ? A. Subornation of perjury consists in knowingly and corruptly procuring another to commit the crime of per- jury or false swearing. Q. May an infant under ten years of age, although com- petent as a witness, be convicted of the crime of perjury 2 A. He may not. Before the age of ten he is conclusively 20 154 Law AND PRINCIPLES oF EVIDENCE. presumed to be incapable of committing crime, but he may be sworn as a witness at any age, if it appear that he understands the obligation of an oath. Q. Suppose one who fails in his case discovers new evi- dence, material to the issues, and which he did not know and could not have known by the exercise of diligence, what is the rule ? A. If the evidence be material and not merely cumula- tive, and such as might necessarily change the result, and it further appears that the losing party exercised all proper diligence, the newly discovered evidence will entitle the party to a new trial. Q. Where the newly discovered evidence consists in facts which he expects to prove by the witnesses, ought he not to satisfy the court that the witnesses will swear to the facts set forth, and that the witnesses are persons of good reputation in the community in which they live? A. He ought; for after judgment has been rendered it. ought to require a strong showing to authorize a court to grant a new trial, solely on the ground of newly dis- covered evidence. Q. Has the court any power or authority to compel the attendance of a witness except he be subpoenaed 2 A. It has not. Where the witness is actually in court: he may be sworn, and if he voluntarily submit to an examination the court has the power to have the exami- nation completed. Q. In criminal cases, when the ends of justice might be defeated by the failure of important witnesses to attend court, may they be required to furnish bail ? A. They may, and on failure to do so the witness may be imprisoned. Taylor Ev. § 1117. Q. In weighing the testimony of witnesses, may memory, as well as bias and opportunities of observa- tion, be taken into account? A. Memory is always an important factor in the matter of the credibility of witnesses, for however truthful a RuLES GOVERNING WITNESSES. 155 witness may be, if his memory is defective and unreli- able, it necessarily weakens the force of his testimony. The witness may, therefore, be subjected to tests in order to ascertain his strength of memory. Q. Is a witness who deals largely in generalities and not in circumstantialities to be regarded with suspicion ? A. Heis; for it is no less true in matters of evidence than in the ordinary transactions of life, that straws generally show which way the wind blows. Q. May the counsel on either side be sworn as wit- nesses ? A. They may. Dr. Wharton observes that, ‘‘ Where counsel become witnesses it may be a proper exercise of the discretion of the court to prohibit them from subse- quently addressing the jury on the case thus made up; and as a matter of delicacy counsel should refrain from testifying as to facts of which there is no other proof than their own evidence. But as a general rule a lawyer is a competent witness in a case he is directing or trying. On the other hand, an unsworn statement, made, by him to the jury, of a material fact not in evi- dence, may be, if objected to at the time, and if not with- drawn or corrected by the court. ground for a new trial.” Q. How may the market value of an article be shown? A. Market value of any article may be shown by hear- say; that is to say where the question is as to the value of any commodity, it may be solved by what persons say who are familiar with the current prices. Thus it may be shown what cotton, corn, wheat or bacon was worth ina particular city at a particular time. For this purpose market quotations of prices current may also be shown. So the value of land may be shown by proving the value of land in the same section, the land being of the same quality. Q. Where a witness is called to prove a confession or admission, is he bound to state the whole of the admis- sion or confession ? A. He is bound to state all that he heard. 156 Law AND PRINCIPLES OF EVIDENCE. Q. What is the true rule as to the witness stating facts and not mere inferences ? A. It is laid down in 1 Wharton Ev. § 510, ‘‘The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts, but when the facts are not necessarily involved in the inference then the facts must be stated. In other words, when the opinion is the mere shorthand render- ing of the facts, then the opinion can be given, subject to cross-examination, as to the facts on which it is based.” Kingsbury v. Moses, 45 N. H. 222; Carpenter v. Corinth, 58 Vt. 214; Swift v. Ins. Co., 122 Mass. 573; Carpenter v. Tr. Co., 71 N. Y. 574; Stanfield v. Phillips, 78 Penn. St. 73; Evans v. Dickey, 117 Ill. 291; Hollenback v. Marshalltown, 62 Iowa, 21; Spears v. McAyr, 66 id. 721; Strong v. Stevens Point, 62 Wis. 255; Inglehart v. State, 16 Ga. 518; Keener v. State, 18 id. 194; Hook v. Stovall, 30 id. 418; Ins. Co. v. Wilkinson, 53 id. 535; Gregory v. Walker, 38 Ala. 26; Ins. Co. v. Peacock, 67 id. 252; State v. Houston, 78 id. 576; Bland v. R. Co., 65 Cal. 626, and other authorities cited by same author. Q. Where it is sought to impeach the credibility of a witness by showing his conviction of an infamous crime, how must the conviction be shown ? A. By the record. 1 Greenl. Ev. § 375. It is held that it is the infamy of the crime and not the mode of pun- ishment which renders the witness incompetent. Gilb. Ev. §§ 140, 141. Where one has been convicted of larceny, it igs held that he is incompetent. See Syl- vester v. State, 71 Ala. 17; 1 Phil. Ev. § 18, as to crimes declared infamous by statute. A conviction of assault and battery does not disqualify. It is held also that con- viction of one for an infamous crime in a neighboring state does not disqualify. 1 Greenl. Ev. § 376; Story’s Conflict of Laws, §§ 91-98, 104, 620, 625; Campbell v. State, 23 Ala. 44; Sims v. Sims, 75 N. Y. 466. On this point there is great conflict of authority. Conviction RULES GOVERNING WITNESSES. 157 without judgment works no disability. As to removal of disability, see Whart. Cr. Pl. & Pr. 521, e¢ seq. Q. In order to test the competency of a witness may he be put on his voir dire ? A. He may; and when put on his voir dire he may be fully questioned.as to all facts touching his competency. ‘‘The testimony of witnesses can never have the effect. of demonstration, because it is not impossible, indeed, it frequently happens that they are mistaken, or wish themselves to deceive. There can, therefore, result no other certainty from their testimony than what arises from analogy. When in the calm of the passions, we listen only to the voice of reason and the impulse of nature, we feel in ourselves a repugnance to betray the truth, to the prejudice of another, and we have observed that honest, intelligent and disinterested persons never combine to deceive others by a falsehood. We conclude then, by analogy with a sort of moral certainty, that a fact attested by several witnesses, worthy of credit, is true. This proof derives its whole force from a double presumption. We presume, in the first place, on the sense of the witnesses, that they have not been mistaken; and, secoudly, we presume on the probity that they wish not to deceive. To be certain that they have not been deceived, and that they do not wish to mislead, we must ascertain, as far as possible, the nature and quality of the facts proved; the quality of the person of the witness, and the testimony itself, by comparing it with the deposition of other witnesses or with known facts. When we are called upon to rely on the testimony of another in order to form a judgment as to certain facts, we should be certain. first, that he knows the facts in question and that he is not mistaken; and, secondly, that. he is disposed to tell the truth and has no desire to im- pose on those who are to form a judgment on his testi- mony. The confidence, therefore, which we give to the witness, must be considered in the first place by his capacity or his organization, and in the next, by the in- terest or motive which he has to tell or not tell the truth. 158 Law AND PRINCIPLES OF EVIDENCE. When the facts to which the witness testifies agree with the circumstances which are known to exist, he becomes much more credible than when there are contradictions in this respect.” Q. In order that a pardon may render a witness com- petent, what should appear ? A. The pardon should be produced, and it should appear that it was full and unconditional. If the pardon was conditional, the competency of the witness is not restored. The burden to show that a witness has been convicted of a crime, rendering him incompetent, is on the party as- sailing. Q. In criminal cases, what may be considered a general and well-established rule regarding privileged communi- cations ? A. ‘‘To be privileged they must pass between the client and his attorney in professional confidence and in the legitimate course of the latter’s legitimate employment. If the communications are made by the client to the at- torney before the commission of the crime, and for the purpose of being guided or helped in the commission of it, they are not privileged.” Q. Where the attorney acts for both parties, are com- munications made by either of them privileged ? A. In such case, it is held that the communications are not privileged, and the attorney may be forced to dis- close. So, where the attorney informs the party that he is retained on the other side and statements are made notwithstanding, the communication is not considered privileged. Q. May a plaintiff, on cross-examination, be asked what he paid, or agreed to pay, his attorneys for bringing the suit, or whether it was a certain part of the recovery, or what the attorney said to him at the time the suit was brought ? A. Such questions are highly objectionable and ought to be ruled out. Nor ought he to be asked whether the attorney told him to bring the action. RULES GOVERNING WITNESSES. 159 What is the rule as to a defendant’s being sworn in a criminal case, in his own behalf ? A. In some of the states he can only make a state- ment, not under oath. The jury is at liberty to believe his statement in preference to the sworn testimony. In other states he may be sworn as a witness. In each case the credibility of the accused is for the jury, which will duly consider the interest he has in misstating the truth. Q. Can an expert be compelled, when duly subpoenaed, to give his opinion, although he has not been paid for the opinion ? A. On this question there is some conflict of authority, but the weight of the authority seems to be that the wit- ness must answer all pertinent legal questions, although they involve his skill and learning in his particular pro- fession or business. A physician, for example, may be. forced to give his opinion as to the cause and extent of an injury. Q. Where statements are made by one party in the presence and hearing of another, are such communica- tions privileged ? A. They are not. The rule is that where both parties to be affected by a transaction are present with the attorney at the time the statements are made, neither can claim that the communication was privileged. Q. Although confidential communications between the husband and wife are deemed privileged, yet, where the wife attacks a sale made by her husband of her property, may she not disclose any promises or inducements held out by the husband, or any duress employed by him in order to procure her signature ? A. She may. The rule should never be made a shelter for fraud, and the courts will not enforce it in any case which does not fall within its spirit as well as its letter. Q. In the examination in chief of a witness, may he be asked, generally, as to his residence, profession, age, 160 Law AND PRINCIPLES OF EVIDENCE. place of business and other like questions, in order to acquaint the jury with the character of the witness ? A. Such questions are proper, as they amount merely to introducing the witness to the jury, in order that they may form some idea as to his character and stand- ing. A physician may be asked where and how long he has practiced medicine, what have been his opportunt- ities for understanding his profession; so, a mechanical engineer may be interrogated as to his previous expe- rience in matters similar to the one under investigation. Q. Is it in the discretion of a court to allow a question already answered by a witness to be repeated ? A. It is; but the court’s refusal to allow a question to be repeated and answered is not error. Q. Where a witness makes inconsistent statements in his direct and cross-examination, may he be asked in the re-direct examination to explain such inconsistent. statements ¢ A. He may; but it is in the discretion of the court. Q. What is the rule where a witness is asked an imma- terial question on cross-examination ? A. The rule is, that the answer to an immaterial ques- tion cannot be contradicted. It is only where the question is material that the answer of the witness may be contradicted. Q. May the bad character of a witness be shown a. number of years before the trial ? A. It has been so held. In Georgia, it was held that the proof might be made seven years after the witness. had removed to another state, that he had a bad char- acter when he resided in Georgia. Q. Where a witness, under a subpoena duces tecum, is required to produce papers in court, may he excuse himself on the ground that he has placed the papers in the hands of his attorneys ? A. He may not, where the papers are not privileged. Q. May a witness refresh his memory by referring to a RuLes GOVERNING WITNESSES. 161 memorandum, made long after the transaction to which it refers ? A. He may not; nor may he have a letter read aloud in the presence of the jury in order to refresh his memory. Y. May the court limit the cross-examination of a witness ? A.The utmost latitude should be allowed in cross- examinations ; but the court may interpose when it becomes apparent that no useful purpose is being sub- served and when full opportunity has been given for searching the conscience of the witness. Q. Where one has introduced certain immaterial tes- timony, may he object to its contradiction by the other side on the ground of its immateriality ? A. He may not. Two courses are open to the other side. One is, to have the testimony ruled out; the other is to contradict it. Q. Where a witness shows a strong disinclination to state the whole truth of a transaction, will the rule against repeating questions to a witness be rigidly enforced ? A. It will not; but the courts will usually allow great. latitude in the examination. 21 CHAPTER IV. RELEVANCY OF EVIDENCE. Q. When may evidence be properly considered rele- vant ? A. Any evidence, oral or written, is relevant which tends directly or indirectly to illustrate and determine the issues or any one of the issues involved, or to support or disprove the hypothesis claimed by the plaintiff or de- fendant in any judicial investigation. A fact, or any number of facts, are affirmed on the one side and denied on the other. Whatever supports any fact set up by the party holding the affirmative or negative may be con sidered relevant. A fact may not be directly relevant; yet if it be relevant to another fact which is rele- vant, it becomes relevant and admissible. If a fact lends aid or support to the hypothesis, it is rele- vant, or if a fact lends aid or support to another fact, which, in turn, supports the hypothesis, it is relevant. See on the subject of relevancy, Sias v. Munroe, 134 Mass. 153; Blanchard v. Steamboat Co., 59 N. Y. 292; Green v. Gilbert, 60 N. H. 461; Standard Oil Co. v. Van Etten, 107 U.S. 325. Q. How may the subject of relevancy be further illus- trated ¢ A. ‘‘A” sues ‘‘B,” for example, for the price of a horse. There was a watranty of soundness. The horse dies two weeks after the sale. ‘‘ B” pleads failure of consideration, and sets up by way of defense that the horse was dis- eased at the time of the sale; that he died of the disease, and that the consideration has wholly or partially failed. Now, it would be relevant for ‘‘ A” to show, under this plea, that the horse appeared to be sound on the day of the sale; that he was seen in defendant’s possession several days after the sale, and worked well and had every appearance of being sound; that the defendant ex- 162 RELEVANCY OF EVIDENCE. 163 pressed himself as well pleased with the purchase, and had told several uf his neighbors that the horse was as sound as a dollar; that he ate heartily and worked well. “A” may also show that he had owned the horse sev- eral years, and that he had never shown any sigus of disease before the sale; that he always ate his food regu- larly and was strong and active; that after his death he was examined at the instance of defendant, by a thor- oughly competent veterinary surgeon, and no sign of grubbs or of any long standing disease was discovered; that the horse had always been well cared for, kept in a comfortable stable, well and regularly fed with sound food and in sufficient quantities, watered and curried reg- ularly, and moderately worked; that the horse had never received any injuries, and that, up to the time of the sale, he had never been exposed to any contagious disease; that he had never had any cough or other distemper; that his wind had always been good, and that there was never any stiffness in the joints, and that he had never been foundered; that he was not subject to colic; that on the very day of the sale the horse had been subjected to all the usual tests to determine soundness by competent judges, and in the presence of defendant, and that he was pronounced sound in limb, wind and wethers; that two or three days defore he died, ‘‘B” drove him a dis- tance of forty miles in one day, over a rough road, with- out food, or water or rest; that ‘‘B” was drunk at the time and greatly abused the horse; that on the same day he was exposed to a fatal contagious disease; that on “B’s” return home, late at night, the horse was not rubbed off and fed, but turned into a patch of green wheat and that his stomach showed that he ate heartily of the wheat; that he suffered greatly during the night and was greatly swollen, and that ‘“‘B” treated him for the colic and administered a fatal poison while drunk; that the horse fell several times with great violence on rough and hard ground, and that he died without any attention except what was given by ‘“B” while drunk. ““A” may show any other relevant fact to establish 164 Law AND PRINCIPLES OF EVIDENCE. the hypothesis that the horse was sound at the time of the sale. *‘B” may show that all the charges made by ‘“‘A” are false, disprove all the facts and circum- stances shown by ‘‘A,” and prove any other fact tend- ing to establish the hypothesis; to-wit : the unsoundness of the horse at the time of the sale, and the consequent death of the horse. The hypothesis of the plaintiff is that the horse was unsound at the time of the sale, and that this is a breach of the warranty of soundness. The hypothesis of the defendant is that he was sound and that there was no breach. Any facts bearing on either of these hypotheses is relevant and will be admitted in evidence. There may be numerous facts to sustain or disprove the allegation of unsoundness, each one of which would be relevant evidence. Q. How may relevancy be further defined ? A. ‘By this term is understood the evidence which is applicable to the issue joined; it is relevant when appli- cable to the issue and ought to be admitted; it is irrele- vant when it does not apply and it ought then to be ex- cluded.” It is often a most difficult question to deter- mine when evidence is relevant, or, in other words, to determine whether one fact is so related to another as to form a link in a train of transactions. If it be so related it is relevant. One fact entirely disconnected from an- other and having no direct or indirect bearing on it can- not be relevant. In the example just given, the facts that ‘“B” wasdrunk; that he drove forty miles in one day; that the road was rough; that the horse was not fed or watered; that he turned him into a field of green wheat, and that he had all the symptoms of colic and all the other facts stated, are related to and have a bearing on the main fact, and that is, that the horse was killed by “‘B” and was sound on the day of sale. It would be rele- vant for ‘‘B” to show that the horse was often sick with colic before the sale; that he had been foundered only a short time before the sale, and that ‘‘A” had told a num- ber of persons that the horse was unsound, and that he intended to sell him, and that he had cautioned them to RELEVANCY oF EVIDENCE. 165 say nothing about it; that ‘‘A” had paid the judges to ex- amine the horse on the day of sale, and that it was fully understood between him and them that they should pro- nounce him sound. These facts would be related to and have a bearing on the main fact, to-wit: that the horse was unsound on the day of the sale. But it would not be relevant for ‘‘A” to show that he had sold ‘'B” horses be- fore and had to sue him, or that ‘‘B” is a wealthy and hea poor man. Norcould ‘‘B” show that ‘‘A” had on the same day sold another horse and warranted his soundness and afterwards admitted that the horse was unsound and took him back, or that ‘‘A” had the reputation of being a common cheat and swindler. Such facts are in no way related to the main fact, nor are they related to any fact which is related to the main fact. They are, therefore, wholly irrelevant and inadmissible. If such foreign issues could be injected into a case it would be impossible ever to reach a conclusion. Dr. Wharton uses the fol- lowing example to illustrate relevancy: ‘‘If, for instance, Sir Phillip Francis’s title to the authorship of Junius is under investigation, we have a series of concentric hy- potheses, each of which is pertinent, and the innermost of which closely surrounds the point of identity. It is pertinent to argue, that the author of Junius, during the Chatham and Grafton ministries, was familiar with English public life; that he possessed a practiced pen; that he was cognizant of the traditions of the war office; that his animosity to Lord Mansfield, and his attachments to Lord Chatham were strong; that he had cogent mo- tives for concealment, both at the particular period and for years afterwards; that he ceased to write about 1773; that his handwriting had certain marked peculiarities. Each of these hypotheses being pertinent, it is relevant to prove that Sir Phillip Francis was, during the period when the Junius letters appeared, familiar with English public life; that the style was polished, vigorous and not unlike that of Junius; that he had been for some time a clerk in the war office; that his political relations ex- pelled him from Lord Mansfield.and connected him with 166 Law AND PRINCIPLES OF EVIDENCE. Lord Chatham; that to him discovery would be political ruin; that about the time the Junius letters closed he left the country; that his handwriting was similarly strik- ing to that of Junius.’’ Now, each one of these facts is related to and bears upon the main hypothesis, and that is, that Sir Phillip Francis wrote the letters of Junius. Taken singly they have little weight, but taken together they carry with them overwhelming conviction. Q. Where one class of facts belonging to the same system are related to another class of facts belonging to the same system, and these latter are related to the issue, are the former relevant and admissible ? A. They are. Q. ‘‘A” ischarged with the murder of “‘B,” would it be relevant to show that ‘‘A” had a motive to take the life of ce B ” g A. It would. As men are never supposed to act with- out motive, in cases depending entirely on circumstantial evidence it is often very material to show the motive. On the other hand, it would be equally relevant for ‘‘A” to show that he had no motive to take ‘‘B’s” life; that he had an interest to prolong it, and that he and “B”’ had always maintained friendly relations up to the time of the alleged homicide. Q. The complaint is that ‘“‘A.’s” railroad engine was wholly out of repair; that its spark arrester was defect- ive; that sparks were emitted and were thrown on ‘‘B.’s” house in the town of ‘‘D”; that it was thus negligently set on fire and burned by the defendant, its agents, offi- cers and employees to the damage of plaintiff; what is relevant evidence ? A. The identification of the particular engine by ‘‘B;” proximity of his house to the railroad track; the direction the wind blew at the time of the fire; the number and size of the sparks; whether the engine was using coal or wood, and the kind of wood; the grade of the road at that point; that the spark arrester was worn, defective RELEVANCY OF EVIDENCE. 167 and not up to the standard; that it had been pronounced defective by competent judges; that the train was heavily loaded and was on an up grade in front of plaintiff’s house; that the wind was blowing toward the house from the passing engine; that the cars were switched at that point; that the engine was burning wood of a quality and in quantities calculated to increase the number of sparks; that there was no fire built in the house on the day, or anywhere about the house; that none of the neighbors built any fire; that no person was in the house on the day: that it was not struck by lightning; that there were no inflammable chemicals in the house and no highly combustible materials inside the house; that there were no matches and no rats; that sparks were seen to fall on the house and on the other houses farther off; that the house was covered with pine shingles, and that they were old and very dry; that the fire originated on top of the house, and at a point next to the road; that the fire was first discovered one half hour after the cars passed; that no stranger was in or about the house on the day, and that no burglary was committed; that on the same day the same engine burned two other houses at different points along the road; that the woods were set on fire at different points, soon after the engine passed; that several days before ‘‘B’s’’ house was burned the same engine emitted sparks and set fire to the woods; that it did the same several days afterwards; that soon after these occurrences the engine was taken to the com- pany’s repair shops, or any other facts or circumstances which directly or indirectly conduce to the hypothesis that ““A’s” engine cet fire to ‘‘B’s” house. ‘‘B” may disprove every fact set up by ‘“‘A,” and prove other facts to es- tablish the hypothesis that the house was not fired by the engine. It would be relevanit for the defendant to show that it used the most improved spark arrester; that the plaintiff’s house was insured; that he has lost a number of houses at different times by fire; and had always col- lected the amount of the insurance; or that he burned his own house in order to get the insurance money. But 168 LAW AND PRINCIPLES OF EVIDENCE. where arson is set up as a defense, it must be proven be- yond a reasonable doubt. Q. What may be considered then as the true test of relevancy ? A. It is, whether the evidence conduces to prove or negative the hypothesis. Canaday v. Krum, 83 N. Y. 67; Penn. Canal Co. v. Dunkel, 101 Penn. St. 103-4; Hanrick v. Cavanaugh, 60 Tex. 1; State v. Edwards, 78 Mo. 498; Bryant v. Ingraham, 16 Ala. 116; Baker v. Gunther, 53 Md. 373; Ames v. Oakley, 131 Mass. 413; Ashley v. Mar- tin, 50 Ala. 587; Rucker v. Man. Co., 54 Ga. 84; Hall v. Stanley, 86 Ind. 219; Petillon v. Wilmarth, 86 Ill. 418. Q Where ‘‘A” sets up fraud in the procurement of a note by ‘‘B;’ or duress, or pleads a gambling considera tion, what facts would be relevant ? A. ‘‘B” may show any facts which tend directly or in- directly to prove that there was no fraud, no duress, and that the note is not founded on a gambling considera- tion. Q. Suppose ‘‘ A” to be charged with the larceny of a cer- tain church organ from the Methodist church at ‘‘B,” and the identity of the defendant, as well as the organ, is in- volved, what would be relevant evidence for the prosecu- tion and defense ? A. It may be shown that a person who represented himself as ‘‘ A” was at church on the night the organ was stolen; that such person word a suit of blue jeans very similar to that worn by defendant when arrested; that he had a peculiar gait like the defendant, and that he cor- responded in size and general appearance with the de- fendant, and that, like the defendant, had lost the thumb and forefinger of the left hand; that the person repre- senting himself as ‘‘A” lingered about the church after the congregation had dispersed, and that the shoes of the de- fendant exactly fitted the tracks under the window of the church; that the organ was found in a barn near the house where defendant boarded; that it had peculiar marks and a peculiar tone, similar to those of the stolen RELEVANCY OF EVIDENCE. 169 organ; or any other facts may be shown to establish that “A” is the identical person who was at church, and who stole the organ. On the other hand, defendant may show that he was not at church on that day; that he was at a neighbor’s house and passed the night with him; that he wore a suit of black on that day, and had purchased the suit of blue jeans since the date of the alleged larceny, or any other facts to show that he is not the person who was at church and who represented himself as ‘‘ A’ As to identity of person, see Whart. Cr. Ev. § 24, et seq. Q. What general rule as to relevancy is laid down by Mr. Stephens ? A. ‘“‘Hividence may be given in any action of the exist- ence or non-existence of any fact in issue and of any fact relevant to any fact in issue and of no others. Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction or sub- ject-matter, are relevant to the fact with which they are connected.” Steph. Ev. Title, Relevancy. Q. Where the fact or facts sought to be proved cannot possibly illustrate the issue or add to or subtract from the force of the affirmative or negative evidence, are such facts relevant ? A. They are not; for they fail to aid the court or jury in reaching right conclusions. It is always a pertinent inquiry, whether a fact or circumstance offered by either party will enlighten the jury and help it to determine the issues made by the pleadings. If it will, it is relevant; otherwise, not. Q. Where the charge is that ‘‘A,” on a certain day and in a certain house, on a certain street, in the city of New York, committed a burglary by breaking and entering a window, and that he took therefrom articles of wearing apparel, what evidence would be relevant ? A. It would be relevant to show that‘‘A” was in New York on that day and was seen near the house just be- fore it was broken into; that the goods were found in his 22 170 Law AND PRINCIPLES OF EVIDENCE. possession soon after the burglary; that he told con- flicting stories as to his whereabouts on that day, and as to his possession of the goods; that his shoes fit the tracks found under the broken window; that the same peculiar- ity found in the tracks was found in the shoe; that there were three indentations in the heel of the track made by the left foot and four in the track made by the right foot; that the heels of his shoes showed three tacks in the left heel and four in the right, and that the distance between the tacks in each shoe heel exactly corresponded in dis- tance with the spaces between the indentations in the tracks. Any other fact is relevant which conduces tu the proof of the hypothesis that ‘‘A” committed the burglary. Any facts which tend to disprove this hypothesis are rele- vant for ‘‘A.” See on this subject, Carter v. Fritz, 124 Mass. 269; Carpenter v. Canal Co., 71 N. J. 674; Harris v. Howard, 56 Vt. 695; Glasscock v. R. Co., 69 Mo. 589; Loring v. R. Co., 131 Mass. 469. Q. Suppose ‘‘A” to be charged with the crime of for- gery, would it be relevant to show that he committed other forgeries shortly before and after the time alleged ? A. Asa general rule such evidence would not be rele- vant, because forgeries at other times are nof in issue, and having no apparent connection with or relation to the forgery charged, they are entirely collateral and ir- relevant. See Whart. Cr. Ev. § 29; Vason v. Beall, 58 Ga. 500; State v. Lapage, 57 N. H. 245; Harris v. Howard, 56 Vt. 695; Martin v. Tobin, 123 Mass. 85; Mailler v. Pro- peller Co., 61 N. Y. 312; Newson v. State, 62 Ga. 339; Turner v. Tubersing, 67 id. 161; Williams v. State, 45 Ala. 57; Ogle v. Brooks, 87 Ind. 600; Dodge w. Haskell, 69 Me. 429. Q. Suppose, however, that a system be shown, that is to say, that it be shown that ‘‘A” had frequently before and after the time alleged, forged ‘‘ B’s” name, or that “A,” where he is charged with arson in order to get in- surance money, is shown to have lost anumber of houses by fire, and to have collected the insurance at different RELEVANCY OF EVIDENCE. 171 times, would the proof of these independent forgeries and arson be relevant ? A. It has been held by the highest authorities that where system is shown, then the proof may be made of other similar crimes, as conducing to proof of the particu- lar hypothesis claimed. 1 Whart. Ev. §§ 29-30, and the authorities cited. Q. Suppose one be charged with knowingly passing counterfeit money, would it be relevant to show that he had passed counterfeit money before and since the time alleged ? A. This would depend on whether system is shown. If the defendant has passed counterfeit money only once or twice, there may be very reasonable ground for sup- posing that he did so innocently; but where he has, within a comparatively short period, frequently passed counter- feit money, a very strong presumption arises that he passed it knowingly. In order to show system, there- fore, it would be relevant evidence to show that the de- fendant was in the habit of passing such money. This is particularly the case where it is shown that the counter- feit coin or paper was of the same denomination and bore the same spurious marks. On this subject, see Taylor Ev. § 322; Whart. Cr. L. § 647; People v. Farrell, 30 Cal. 316; Rex v. Roebuck, 36 Eng. L. & Eq. 631; Mason v. State, 42 Ala. 532; Hendrick v. Com., 5 Leigh, 708; State v. McAllister, 24 Me. 139. Q. Where the issue is one of fraud, would it be relevant to show that “‘A” had frequently committed such frauds before and after the time alleged ? A. In order to show system such evidence would be relevant. So where ‘‘A” sues “B” for a battery, and “‘B’’ sets up accident to rebut such defence, it may be shown that “B” had frequently committed such batteries on “A.” Q. What is a safe general rule in such cases ? A. Where there is a question whether such act was accidental or intentional, the fact that such act formed a 172 Law AND PRINCIPLES OF EVIDENCE. part of a series of similar transactions, in each of which the person doing the act was concerned, is relevant. Q. Where one sues another for slander or libel, may other slanders or libels be shown ? A. Where there is connection shown between them, as when it is apparent that each libellous publication or slander constituted a part of a system to traduce the character or injure the business of the plaintiff, they may be shown. Bassett v. Elmore, 48 N. Y. 123; Dustin v. Rose, 69 id. 122; Prime v. Eastwood, 45 Iowa, 640; Barr v. Moore, 87 Penn. St. 385; Stowell v. Beagle, 79 Ill. 525; Ward v. Dick, 47 Conn. 300; Gribble v. Press Co., 34 Minn. 342. Asto what may be shown in miti- gation of damages, see Thomas v. Dunaway, 30 Ill. 373; Taylor Ev. § 322. As to repetitions after action brought, Townsend on Libel, § 390; Robbins v. Fletcher, 101 Mass. 115; Williams v. Miner, 18 Conn. 464; Parmer v. Anderson, 33 Ala. 78; Ellis v. Lindley, 38 Iowa, 461; Howard v. Sexton, 4 N. J. 157; Frazier v. McCloskey, 60 N. Y. 337. Q Where ‘‘A” is charged with fraud, may other frauds be shown where they are part of a system to defraud ? A. They may. On this subject, see Whart. Cr. Ev. §§ 84-53; Whart. Ev. § 33; New York Ins. Co. v. Arm- strong, 117 U. S. 591; Stockwell v. Silloway, 118 Mass. 884; Baker v. Collins, 12 Cal. 457; Knight v. Heath, 23 N. H. 410; Stewart v. Fenner, 81 Penn. 8t. 177; Parker v. Valentine, 27 W. Va. 677; Renney v. Williams, 89 Mo. 189; Big. on Frauds, 478. The same doctrine applies in suits for seduction, adultery or other offenses. Be- fore independent acts can be shown, system must be established; but the acts may be shown to prove the system. Loeb v. Flash, 65 Ala. 526; King ». Moon, 42 Mo. 581; Therasson v. People, 82 N. Y. 238; Stone 2. Wood, 85 Til. 603; Horton 0. Weiner, 124 Mass. 92; Hall v. Irwin, 66 N. Y. 649. Q Where one is shown to have sustained injuries on a. railroad by the negligent running of cars, would it be RELEVANCY OF EVIDENCE. 173 relevant to show that an employee, whose negligence is charged to have caused the injuries, was shortly there-. after discharged, or that a defect in the track was repaired where it is alleged that such defect caused the injury ? A. On this question there is much conflict, but it is generally held that such evidence is relevant. The con- trary is held, however, in Dale v. R. Co., 73. N. Y. 468; Ely vu. Ely, 77 Mo. 34; Hipsley v. R. Co., 88 Mo. 349; Mc- Kee v. Bidwell, 74 Penn. St. 218; St. Louis R. Co. v. Weaver, 35 Kans. 412. Q. Where injury is alleged as the result of reckless running of cars at a particular point, would it be relevant to show at what speed the same engineer ran his train at the same point on other days ? A. It would, but the evidence is admitted on the idea of system. State v. R. Co., 52 N. H. 528; State uv. Cols- ton, 53 id. 483; State v. Hoyt, 46 Conn. 330; Stephen Ev. § 17; Whart. on Neg. § 912; 1 Whart. Ev. § 41. Q. Would it be relevant for a witness to state his under- standing of a conversation? A. It would not. He should state what the conversa- tion was in the words used. Grubey v. Nat. Bank, 24 N. E. Rep. 575; 35 Tl. App. 354. Nor can a witness state what his and other persons intentions were in making a contract. Kenyon v. Luther, 4 N. Y. Supp. 498; 10 id. 951. See Dwight v. Badgley, 14 id. 498. Q. Would it be relevant to show in a suit to recover damages for personal injuries, that plaintiff’s counsel had agreed to take a contingent fee ? A. Such evidence has been held to be irrelevant. Stearns v. Reidy, 25 N. E. Rep. 762. Q. Where part of a conversation is given in evidence will it be relevant for the other side to show all that was said by him at the time on the subject-matter under investigation ? A. It will, and he may make any explanation he desires of what was said at the time. 174 Law AND PRINCIPLES OF EVIDENCE. Q. Where there is a verbal contract between the parties, and they differ as to its terms, would the evidence of other persons as to what the contract was be relevant ? A. It would. Q. Where one is sued for an alleged debt, is it relevant to show the length of time which elapsed before any demand was made? A. Such evidence would be relevant, for what it is worth, simply to disprove the evidence of such debt. Q. Where the question is as to the genuineness of a signature, may one who is not an expert give his opinion from a comparison of the signature with one which is genuine, as to its genuineness ? A. He may not. Q. Where usury is set up to a suit on a note or other contract, what evidence would be relevant ? A. All the transactions of the parties in which the note originated, the indebtedness of the defendant and how and when it originated, the amount of usury con- tracted for and the consideration of the notes, and any other evidence going to show that usury was charged or recovered, and how it was concealed, would be relevant and admissible. Q. When the question to be determined is whether a particular engine on ‘‘B’s” railroad set fire to ‘‘A’s” house, would it be relevant to show that other engines on ‘‘B’s” road caused fires along the road by emitting sparks ? A. Where it is shown that the engines were similarly constructed and had been in use on the road for a like period, such evidence would be relevant and admissible. Where it is uncertain what particular engine caused the fire, and the defendant denies that the fire was caused by its engines, it would be relevant to establish a system and to prove that all the engines on ‘‘ B’s” road emitted sparks, and either had no spark arrester or very defec- tive ones. But where it is alleged that some one of ‘‘ B’s” passenger trains set fire to the house, it would not be rele- RELEVANCY OF EVIDENCE. 175 vant to show that ‘‘ B’s” freight engine emitted sparks; nor would it be relevant to show that other freight engines emitted sparks, when it is alleged that an engine of a certain number and of different construction caused the fire. On this subject, see Coale v. R. Co., 60 Mo. 227; R. Co. v. Hendrickson, 80 Penn. St. 182; 1 Whart. Ev. 8§ 33, 34, and notes and authorities cited; Grand Trunk R. Co. v. Richardson, 91 U. 8. 454; Crist v. R. Co., 58 N. Y. 638; Boyce v. R. Co., 43 N. H.'627; Field v. R. Co., 32 N. Y. 339; Huyett vu. R. Co., 23 Penn. St. 373; R. Co. v. McClelland, 42 Ill. 358; Penn. R. Co. v. Stranahan, 79 Penn. St. 405. Q. Where system is shown, what is the rule as to the proof of the characteristics of any one of a class, in order to raise the presumption that the same characteristics belong to the other members ? A. The substance of the rule Jaid down by most of the writers on the law of evidence is, that where an act is one of aclass of acts, proof of qualities or characteris- tics may be given of any one of the class in order to show that these same qualities and characteristics belong to all the members of the class. If it be shown, for exam- ple, that spark arresters manufactured by a certain com- pany and constructed in a certain way are invariably defective, then it is revelant to show that the spark arrester whose defects caused a fire, belonged to that class, in order to prove that it possessed the same char- acteristics as the others. On this subject, see Taylor Ev. § 300; Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218; Stanley v. White, 14 East, 338, 341, 342. Q. Inorder to prove collateral facts, is it first necessary to show system ? A. It is. It is laid down in Wharton’s Evidence, “that the predicates of a class cannot be put in evidence as governing a particular case, without showing that the case belonged to that class.” Miller v. Boykin, 70 Ala. 469; Haish v. Payson, 107 Ill. 365; Hanrick v. Cavan- augh, 60 Tex. 1; Krammen v. Mill Co., 58 Wis. 399. 176 Law AND PRINCIPLES OF EVIDENCE. Q. What-is the rule as to the admission of evidence where the court is in doubt as to its relevancy ? A. The rule is to admit it. Q. Where the evidence, as presented, does not appear to be relevant, but the party offering it suggests to the court that other evidence to be offered will show its relevancy, what is the rule ? A. The court may admit it subject to be ruled out on the failure of the party to make good the representa- tion. It is proper to observe, in this connection, that it is highly reprehensible for counsel not to act with the utmost good faith in stating to the court what they expect to prove; otherwise it is in their power, by mis- leading the court, to get the benefit of evidence which would not otherwise have been received. The evidence may be ruled out, but it often has its weight with the jury. The safer and better rule, where it is practicable, is first to require the production of the evidence which. makes the other relevant. Q. In criminal cases, is the proof of good character relevant ¢ A. In all cases involving character, or where the very nature of the charge puts it in issue, the proof is rele- vant. Q. Is the proof of character relevant in civil cases ? A Itis not. Where, in cases of libel and slander, the defendant justifies, he thereby puts character in issue, and proof of character becomes relevant See, as to proof of character in civil cases, Battles v. Laudenslager, 84 Penn. St. 446; Church v. Drummond, 7 Ind. 19; Crose- v. Rutledge, 81 Ill. 266; Barten v. Thompson, 56 Iowa, 571; Leinkauff v. Brinker, 62 Miss. 255; Dudley v. Mc-. Cluer, 65 Mo. 176. Q. In actions for false imprisonment and malicious. prosecution, may plaintiff’s bad character be shown ? A. It may not, except in mitigation of damages. Esch- bach v. Hurtt, 47 Md. 61; Martin v. Hardesty, 29 Ala.. RELEVANCY OF EVIDENCE. 177 458; Bays v. Herring, 51 Iowa, 286; Patterson v. Gar- lock, 39 Mich. 447; Sutton v. McConnell, 45 Wis. 269. Q. Where counsel, learned in the law, examine all the facts and advise a prosecution, will this be a good de- fense in a suit for malicious prosecution ? A. It will, where there is no malice, but where the prosecution is malicious, the defendant may not take shelter under the advice of counsel, however faithfully it may be followed. Walter v. Sample, 25 Penn. St. 275; People v. Long, 50 Mich. 249; Wicker v. Hotchkiss, 62 Il. 107; Laird v. Davis, 17 Ala. 27. Q. In actions for slander or libel, where the slanderous or libelous words impute crime to the plaintiff, can he prove good character as part of his case ? A. The preponderance of authority is against the admission of such evidence. There is no such burden on the plaintiff; for the law presumes good character. Where, by proof, the character of the plaintiff is assailed, he may sustain it. Q. Where a conspiracy is shown between two or more persons to commit a crime, what is relevant evidence ? A. The declarations of any one of the conspirators pending the criminal project and in furtherance of it, are relevant and admissible against all the other conspira- tors. Harris v. State, 53 Ga. 642; Millen v. State, 60 id. 620: Hudgins v. State, 61 id. 182; Abb. Tr. Ev. 190; Steph. Dig. of Ev. art. 4; 27 Am. Dec. 115 (note); Com. v. Scott, 25 Am. Rep. 85; Rex v. Stone, 6 T. R. 528; Nudd v. Burrows, 91 U. 8. 426; Dole v. Woolredge, 142 Mass. 161; Dewey v. Moyer, 72 N. Y. 70; Confer v. McNeal, 74 Penn. St. 112; Philpot v. Taylor, 75 Ill. 309: Riehl v. Foundry Ass’n, 104 Ind. 70; Tucker v. Finch, 66 Wis. 17; Ins. Co. v. Moog, 78 Ala. 284; Whart. Cr. Ev. 698. Q. Suppose it becomes necessary to prove the price of cotton, corn, bacon or wheat in the city of Austin, Texas, on a particular day, would it be relevant to prove the price of such commodities in the city of New York on the 23 178 Law AND PRINCIPLES OF HVIDENCE. same day, and would hearsay or the market quotations be relevant to prove the prices current in New York ? A. Where the distant market is interdependent, and sympathetic, such evidence would be relevant. Siegbert v. Stiles, 39 Wis. 583; Berry v. Nall, 54 Ala. 446 ; Brown v. Volkening 64 N. Y. 82; Comstock v. Smith, 20 Mich. 338 ; Hanson v. Lawson, 19 Kan. 201. Q. Would it be relevant to show the condition of a car which is similar in construction to one on which an in- jury occurred ? A. It would. Q. Where one brings suit for being ejected from a train, and the defendant sets up that the plaintiff used vulgar, obscene and profane language in the presence of female passengers, would it be relevant for the plaintiff to show by third persons, that eo had never heard him use profame language ? A. Such evidence would not be relevant. Q. In an action on a note, where the defendant sets up failure of consideration, would it be relevant for him to show that there had been a failure of consideration in similar transactions with others ? A. It would not. Q. Where the question is as to the value of an article at the place where it is to be marketed, would it be relevant to show its value at the place where the article was produced ? A. Such evidence would be relevant ; for by deducting the cost of transportation and other expenses, the market value can be approximately ascertained. Q. Where one is notified to produce papers and fails to do so, and the other side introduces secondary evidence of their contents, is it competent for the party failing to produce to show the contents in rebuttal ? A. It is not. Q. In cases of suits for malicious prosecution, may de- RELEVANCY OF EVIDENCE. 179 fendant show that he consulted a competent attorney and followed his advice ? A. He may; and if he proceeded in good faith and with- out malice, this will be a good defense. Q. Where the question is one of fraud in the sale or purchase of property, what is the rule as to proof of other frauds ? A. ‘Where fraud, in the purchase or sale of property, is in issue, evidence of other frauds of like character com- mitted by the same parties, at or near the same time, is relevant. Its admissibility is placed on the ground that, where transactions of a similar character, executed by the same parties are closely connected in time, the in- ference is reasonable that they proceed from the same motive. The case of fraud is among the few exceptions to the general rule, that other offenses of the accused are not relevant to establish the main charge.” 1 Whart. Ev. § 33 (note); Hall v. Naylor, 18 N. Y. 588; Horey v. Grant, 52 N. H. 569; Stewart v. Fenner, 81 Penn. St. 177 ; Brown v. Shock, 77 id. 471. Q. Where a conveyance is attacked on the ground that it was made by the debtor to delay, hinder and defraud his creditors, what evidence would be relevant for the plaintiff ? A. They may show the insolvency of the grantor at the time of the conveyance ; that there was no considera- tion, or a very inadequate one; that a benefit was re- served by the grantor; that the grantor remained in possession and has paid no rents to the grantee ; that the grantee has paid the taxes on the property with the money of the grantor; that the conveyance was made just before the creditors obtained judgments ; that the deed was not recorded; that the grantor, while con- tinuing the possession, has made improvements of a sub- stantial character on the land; that he has cut and hauled away valuable timber without accounting to the alleged grantee ; that the grantee himself was insolvent at the time of the alleged purchase ; that he owned no visible 180 Law AND PRINCIPLES OF EVIDENCE. means at the time and was without credit; that the con- veyance was made secretly and had been kept a secret ; that the grantee and grantor are nearly related ; that since the alleged sale the grantor had, with the knowl- edge and approval of the grantee, contracted debts on the faith of the property ; that the grantee had knowledge of the pending suits at the date of the sale; that the grantee had knowledge of the fraudulent intent of the grantor, or any other facts or circumstances showing, or tending to show, that the intent of the grantor was to defraud his creditors. Where the conveyance is to the wife of the creditor, any facts would be relevant which show a purpose or intent to defraud. Q. In suits for personal injuries against railroad com- panies, what facts are relevant and admissible when of- fered by the plaintiff or defendant ? A. The plaintiff may show the extent of his injuries ; his diminished capacity to earn money in consequence of the injuries, and whether his injuries are permanent or temporary; how much he has suffered physically and mentally from the same; what he could earn before he was injured and what since; any physical deformity re- sulting from the injuries; the age of the plaintiff may be shown and the probable duration of life; what expenses have been incurred in physicians’ bills and for hire of nurses while suffering from the injuries; his reasonable prospects in life for obtaining more remunerative em- ployment. He may also show any act of negligence of defendant causing the injury, and his own freedom from negligence contributing to the injury, or any other facts showing his right to recover. Defendant may show that it was without negligence; that plaintiff’s own negligence caused the injuries; that it was the result of unavoidable accident; that the injuries are slight and not permanent; ° that plaintiff’s capacity to earn money has not been di- minished, and any other facts which disprove plaintiff’s allegations or show that he is not entitled to recover. The defendant may show that the plaintiff, by the exer: RELEVANCY OF EVIDENCE. 181 cise of ordinary diligence, might have avoided the results of defendant’s negligence; that by reason of increasing age and infirmities the plaintiff’s capacity to earn money will diminish, or any other facts to reduce the amount of plaintiff’s claim. Q. In a suit for breach of bond for title to land, what facts would be relevant for the plaintiff to prove ? A. The production of the bond for title and proof of execution by the obligor; proof by obligee of his com- pliance with the conditions nominated in the bond; proof of the failure of obligor to comply with its conditions; proof of damages sustained by obligee. Q. In proving conversations, what is considered rele- vant ? A. All that was said by one party, and all that was said by the other, bearing on the matter under investigation. In other words, the questions as well as the answers should be admitted; for it is often important to under- stand the questions in order to construe the answers. Q. Where it becomes important to ascertain whether the story of a witness is a fabrication, is it relevant to show that he made the same statement before that time when he had no motive or interest to state an untruth ? A. ‘‘Where it is important to know whether a state- ment made by a witness is of recent fabrication, it is competent to show that on a former occasion, when there was no reason to suspect his motives, he stated the mat- ter in the same way as on the trial, but, where such declarations go to the substance of the action and are made in such close connection with the bringing of the action that they appear as if made for the purpose of ac- cumulating testimony, in support of plaintiffs claim, they cannot be given in evidence for any purpose.” Clever v. Hilberry, 9 Atl. Rep. 647. Q. When are the sayings and declarations of an agent relevant and admissible against his principal ? A. When the agency is established, the declarations of 182 LAW AND PRINCIPLES oF EVIDENCE. the agent pending the agency, and made in referenee to the business about which he is engaged for the principal, are admissible. Sometimes the statements of agents are admitted as part of the res geste. In an action against a railroad company to recover for personal injuries, the declarations of the engineer or section foreman as to de- fects in the track causing the injury, and not at the time of the injury, so as to constitute part of the res geste, have been held irrelevant and inadmissible. Worden v. R. Co., 33 N. W. Rep. 629. Q. May the agency be shown by the declarations of the agent ? A. It may not. Q. Where statements are made by the engineer of a train at the very time one is injured, are such statements admissible against his principal ? A. They are, on the idea that they constitute part of the res geste. When the statements made by employees are made at the time the injury was received and in the course of their duties as employees, they are admissible. And itis held that where an employee, in the course of his duty, a short time after an accident, makes a report as to how the accident occurred, such report is ad- missible. So declarations of an employee just before a collision occurs are admissible. So declarations of one who has been injured as to present physical pains or sufferings are admissible. It has been held that the statements of a section foreman as to how the plaintiff’s ‘stock were killed, made after the killing and not in the course of his duty, are not admissible. Generally, the statements of an agent at the time of transacting busi- ness for his principal and touching that business are relevant and admissible. Q. May general value be shown in order to show specific value ? A. It may; for example, the value of a horse is in question. It would be relevant to show by witnesses the value of horses of the same age and size, and having RELEVANCY OF EVIDENCE. 183 similar qualities to the one in question. So, in order to show the value of any specific article, it is relevant to show the value of other articles having similar qualities. Head v. Hargrave, 105 U. 8. 49; Thompson v. Boyle, 85 Penn. St. 477; Fairley v. Smith, 87 N. C. 367; R. Co. v. Gabbert, 34 Kans. 182; R. Co. v. Harper, 19 id. 529. On similar grounds, where railroads are sued for right of way and for consequential damages and in suits against municipal corporations for damages to city lots, where actual and consequential damages are claimed, it would be relevant to show the benefits and increased value of other adjoining lots, by reason of the improvements, in order to illustrate the increased value of the property in question by reason of the improvements. Q. To show that a certain pond of water caused sick- ness in ‘‘A’s” family during the summer of 1892, would it be relevant to show that other persons, living in the neighborhood of the pond, were similarly affected in 1890 and 1891 ? A. Such evidence would be relevant. It may afford a strong presumption that, on the familiar principal that like causes produce like effect, the pond caused all the sickness. Q. To show that a commercial fertilizer is worthless in a suit against ‘“‘ A” for its price, what would be relevant evidence by ‘‘A.” ? A. He could show that the seasons were propitious ; that the fertilizer was properly distributed; that the crop was well cultivated; that test rows were left and that no beneficial results followed. He may also show that his neighbors used the same fertilizer with like attention to its proper distribution and to the cultivation of their crops. The greater the number of those who used it without benefit, the stronger the probability that the fer- tilizer purchased by ‘‘A” was worthless. Q. Where ‘‘A” is sued for the price of a gin or water- wheel, and pleads total failure of consideration, would it be relevant for ‘‘A’”’ to show that other gins and water- 184 LAw AND PRINCIPLES OF HVIDENCE. wheels of the same construction and manufacture were purchased at the time he purchased and proved to be worthless ? A. Such evidence would be relevant. The qualities and characteristics of several members of a class may be shown in order to show or infer similar qualities or characteristics of other members. Q. ‘‘A” is charged with being a common cheat and swindler; that he made false and fraudulent representa- tions to ‘‘B” of his commercial standing and responsibility, and thereby obtained credit; would it be relevant to show that on the same day and in the same town he made like representations to other merchants for the purpose of obtaining credit ? A. Where “A” denies that he made such representations to “B” for the purpose of showing an intention to defraud generally by certain representations, and, in order to es- tablish system, it may be relevant tu show that he made the same representaticns to others. On the subject of relevancy of the declarations of an agent to bind the principal, see Ewell Evan’s Ag. 135-8; Hawker v. R. Co., 36 Am. Rep. 828; 2 Whart. Ev. § 1170; Roberts v. Burke, 12 Am Dec. 325; Coweta Co. v. Rogers, 19 Ga. 417; Mason v. Croom, 24 id. 211; Doe v. Roe, 46 id. 593; Hines v. Poole, 56 id. 638; Bird v. Daggett, 97 Mass. 494; Willard v. Buckingham, 36 Conn. 365; Dean v. Ins. Co., 62 N.Y. 642; R. Co. v. Tyng, 63 id. 653; Reineman v. Blair, 96 Penn. St. 155; Ins. Co. v. Boyle, 21 Ohio St. 119; Wolfe v. Pugh, 101 Ind. 294; Merchants’ Co. v. Leysor, 89 Ill. 43; Pinnex v McAdoo, 68 N. C. 56; Galcerau v. Noble, 66 Ga. 367; Baldwin v. Ashley, 54 Ala. 82; Peck v. Ritchey, 66 Mo. 114; Whart. on Ag. § 675. Q. May particular acts be given in evidence to show good or bad character ? A. As a general rule, such evidence is irrelevant. Duval v. Davey, 32 Ohio St. 604; McCarty v. People, 51 Til. 231; Keener v. State; 18 Ga. 194; State v. Jerome, 33 Conn. 265. When, however, it is desirable to show RELEVANCY OF EVIDENCE. 185 that the principal had knowledge of the character of his agent for incapacity and drunkenness, as in the case of railroad agents, particular acts may be shown to illustrate the question of notice. Q. What is the general rule as to relevancy of admis- sions made by a party to the record ? A. The general rule is that they are relevant and ad- missible. But, where the person making the admissions is a nominal party only, the admissions are excluded. Where there are several parties, but there is no joint in- terest, the admissions of one do not bind the other. The admissions will bind the party making them, how- ever. So, where a trustee makes admissions before he is clothed with the trust or a defendant in fi. fa. after liti- gation has commenced in claim cases, the admissions are not relevant. Powell Ev. 95-97; Steph. Dig. Ev. art. 16; 2 Whart. Ev. §§ 1217, 1192; Abb. Tr. Ev. 188; 1 Greenl. Ev. §§ 172, 179. Q. When are the admissions of strangers to the suit relevant and admissible ? A. Admissions of strangers are received when such ad- missions are against the interests of the party making them as to a fact or facts, collateral to the main issue between the parties, and when the fact or facts are nec- essary to be determined in the adjudication of the cause. Again, where one of the parties refers to such stranger for information on a question pertinent to the issue, his answers are admissible, and the admissions of agents, during the existence and when they are made in pursu- ance of and within the scope of the agency, and are part of the res geste, are relevant. Marsh v. R. Co., 56 Ga. 974; Lee v. Helms, 57 id. 253; Howe Machine Co. v. Souder, 58 id. 65; Powell Ev. 100; Roberts v. Burke, 12 Am. Dec. 325; 14 id. 632 (note); Hawker v. R. Co., 36 Am. Rep. 825. Q. What is the general rule as to the relevancy of ad- missions made by privies in blood, privies in law and privies in estate? 24 186 Law AND PRINCIPLES OF EVIDENCE. A. The admissions of privies in blood and privies in law are generally admissible, but the admissions of privies in estate are not admissible when made after title has passed out of them. Wentworth v. Wentworth, 71 Me. 72; Smith v. Forest, 49 N. H. 230; Coyle v. Cleary, 116 Mass. 208; Pickering v. Reynolds, 119 id. 111; Flagg v. Mason, 141 id. 64; Abb. Tr. Ev. 879; Putnam v. Fisher, 36 Am. Rep. 749; 14 Am. Dec. 195 (note); Reels v. Knight, 19 id. 185; 26 id. 288 (note). Q. Is it allowable to prove admissions made with a view to compromise ? A. No admissions made with a view to compromise, or made under duress, will be received in evidence. Q. Where one has been injured by jumping from a moving car in apprehension of a collision, would it be relevant for him to show what outcries were made by persons on the two cars and by other persons standing by ? A. Such evidence would be relevant, as showing whether the circumstances were of such a character as. to excite reasonable fears in the mind of the plaintiff that. he was in imminent peril of life or limb. There may not, in fact, have been any real danger; yet, if the plain- tiff believed, and had reasonable grounds to believe, that he was in imminent peril, he may act on it, and it would be no defense to show that no real danger existed. It would be relevant to show that the plaintiff acted under the influence of fear excited by what he saw, as well as by the outcries of the passengers and bystanders. Q. When a railroad company is sued for personal in- juries, and fails to call certain employees who were in a position to know the facts, in order to rebut the unfavor- able presumption which arises in such a case, would it be relevant for the defendant to show that he had resorted to every possible means to bring the witnesses into court? A. Such evidence would be relevant and such proof would relieve the defendant of the unfavorable presump- tion. RELEVANCY OF EVIDENCE. 187 Q. In a suit for personal injuries against a railroad company by an employee, would a report made by him to the office, which it was his duty to make, showing how he was injured, be admissible in evidence ? A. It would not. Howard v. Savannah, Florida W. Ry. Co., 118. E. Rep. 452. Q. What is the general rule as to statements made by an agent binding the principal ? A. The declarations of an agent are admissible against his principal when they are part of the transaction in which he is engaged for his principal at the time. Hawk v. Applegate, 37 Mo. App. 32. They are only admissible when they form part of the principal’s business. Bean- sley v. Brockway, 27 Ill. App. 410; Bates v. Sandy, id. 552; Curran v. Car Co., id. 572. Where the question is whether a railroad company had knowledge of defects in its track causing a wreck, conversations between the chief civil engineer of the road and the superintendent, in which the latter’s attention was called to the defects, have been held relevant and admissible. St. Louis & 8. T. Ry. Co. v. Weaver (Kans.), 11 Pac. Rep. 408. Q. Would the declarations of the ancestor, while in possession of land under a parol gift, to the effect that he does not own the land, be admissible against the heir ? A. They would. Q. In a prosecution for forgery, where it is admitted by both the state and the defendant, that a certain signature is genuine, is such signature competent evidence to be used by the jury in comparison with the signature alleged to be forged ? A. Itis. State v. Zimmerman, 47 Kans. 242; Powers v. McKenzie, 90 Tenn. 167; Grand Island Banking Co. v. Shoemaker, 31 Neb. 124; Franklin v. Franklin, 90 Tenn. 44; Am. Dig. (1890), 1426, §§ 721, 723. Q. What questions are considered relevant on cross- examination for the purpose of testing credit? A. The broad rule is stated in Taylor Ev. § 1488, as 188 Law AND PRINCIPLES OF EVIDENCE. follows: ‘‘ With respect to all questions put to a witness on cross-examination for the purpose of testing credit, it may be broadly laid down that if the questions relate to relevant facts, the answers may be contradicted by inde- pendent evidence; if to illustrat equestions, they may not. It becomes necessary to inquire what matters are, or are not, relevant as connected with the witness. It should be observed that inquiries respecting the previous con- duct of the witness will almost invariably be regarded as irrelevant, provided such conduct is not connected with the cause or parties. Therefore, ifa witness be questioned on cross-examination respecting the commission of crimes by him on some former occasion, his answers, except in the case of an actual conviction, must be taken as con- clusive. This rule extends to parties to the record, when giving testimony as well as to other witnesses.” Q. Is it generally relevant to inquire of a wituess as to his feelings of hostility or friendship towards either party, or as to his interest in the case, or to show that he has been active in procuring testimony for either side, or to show any other facts which indicate partiality or preju- dice ? A. Such testimony is considered relevant. Q. Would it be relevant to show that a witness has tampered with the witnesses of the other side; that he has advised them to stay away from court, or has fre- quently conferred with the witnesses on the side on which he testified as to the character of their testimony ? A. It would; and it is relevant to inquire of the witness as to any previous statement he has made bearing on the question at issue; but he cannot be inquired of as to irrele- vant statements previously made, and when such inquiry is made and the witness answers, he cannot be contra- dicted. Q. What is the well-established rule as to proof of col- lateral facts ? A. Where the collateral facts sought to be proved can- not afford any reasonable presumption as to the truth or RELEVANCY OF EVIDENCE. 189 falsity of the hypothesis claimed on the one side, and de- nied on the other, they are irrelevant and should be ex- cluded. Q. What very large class of facts are excluded on the ground of irrelevancy 4 A. The acts and declarations of strangers so far as they affect parties to the record are generally excluded. It would behighly unjust that one’s rights and interests should be prejudiced by the words or acts of third parties with whom he is in no way connected or associated. By thy own words and acts shalt thou be condemned or jus- tified is the spirit of the law as well as the dictates of justice. CHAPTER V. PRIMARY AND SECONDARY EVIDENCE. Q. What is meant by primary evidence ? A. Primary evidence, as distinguished from secondary evidence, is such as is higher in dignity and importance, and which, in its very nature, stands more closely con- nected with the fact or facts in contention. It is the highest and best.proof attainable of the existence of any given fact. Secondary evidence is admitted only in cases where it is impossible to obtain primary evidence, as the rules of evidence require that the best evidence of any fact should always be furnished. There are degrees in secondary evidence; but the rule does not require the higher degree of secondary evidence to be produced; for it is a question for the party offering the evidence to determine whether he will introduce the weaker or stronger evidence first, and at what stages of the pro- ceeding he will offer it. Besides, it would become a most difficult problem for the courts to determine which is the stronger evidence to establish or disprove any matter in issue. In the very nature of the case, therefore, the rule cannot be generally applied to secondary evidence. But where, in the progress of a trial, it appears that there is a written instrument which contains the mutual stipu- lations of the contracting parties, the instrument itself is the primary evidence of what the contract is, and it would violate a fundamental rule of evidence to allow secondary evidence of its contents, where it is practica- ble to produce the instrument. Its loss, it is true, would authorize the weaker classs of evidence ; but while it exists and can be brought into court, the proof of its contents, by parol, will be rigidly excluded. If the con- tract was verbal, it may be shown, by any person who has knowledge of it, although such person may not have been in a position to know as much about the contract 190 PRIMARY AND SECONDARY EVIDENCE. 191 as some other person not produced. It may be proven by a very ignorant person, whose recollection is indis- tinct and whose memory is extremely treacherous, while a very intelligent and reliable witness, who actually made private memoranda of the terms of the contract at the time it was entered into, is not produced. When evidence is offered, therefore, and it appears that there is better evidence of the facts which the party seeks to prove by it, that better evidence is primary and ought to exclude the latter, which is secondary. But where it does not appear that there is better evidence, it will be admitted although there may be stronger evidence in the same class of evidence. The rule, then, refers to classes of evidence, and not to degrees of strength in any par- ticular class. There may be, for instance, one written instrument signed by the parties which will furnish stronger evidence of a fact than any other written instru- ment signed by the same parties; yet the latter instru- ment will not, on this account, be excluded, for both instruments belong to the same class. But as between parol evidence of an agreement and written evidence of the same agreement, one belongs to one class and the other to another, and the former is excluded. The one stands first and is called primary; the other stands second and is called secondary. If they belonged to the same class their relative position in the class would not affect their admissibility. Q. Give further illustrations of this rule ? A. “A” sues ‘‘B” for services rendered by him as a builder and contractor. In the course of the investi- gation it develops that their contract was in writing, which clearly specifies the material to be used, the size and construction of the house, the price to be paid and when, how and on what conditions. Now, parol evi- dence of any of these facts would be clearly inadmis- sible, for the very simple reason that the parties them- selves have deliberately chosen to put the terms of the agreement in writing and not to rely on memory. What 192 Law AND PRINCIPLES OF EVIDENCE. that writing contained yesterday it contains forever, and its language, when fairly construed, in the light of all the circumstances which surrounded the parties at the time of the execution, must absolutely control and fix their duties and liabilities. If any other rule were adopted it would practically do away with the binding force and solemnity of all written agreements and wipe away all distinctions between parol and written con- ‘tracts. Taylor, in his work on Evidence, says: ‘‘ that this rule does not demand the greatest amount of evi- dence which can possibly be given of any fact; but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when better evidence is with- held it is only fair to presume that the party has some sinister motives for not producing, and that, if offered, his design would be frustrated. The rule becomes essen- tial to the pure administration of justice. Requiring the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evi- dence is attainable.” Taylor Ev. § 391; 1 Phil. Ev. § 418; 1 Steph. Ev. § 500. : Q. Where the law requires an instrument of any sort to be in writing, may it be substituted by oral evidence ? A. It may not, nor may it be substituted for the written evidence of any contract which the parties have deliber- ately chosen to put in writing. Taylor Ev. § 401. Nor will copies of original writings be received where the original writings can be produced. Q. Give further illustrations of the rule under con- sideration ? A. Take the case of a partnership, where two persons agree in writing to combine their capital and labor in a certain enterprise, each agreeing to contribute so much of the capital stock, to perform certain duties in carry- ing on the business of the partnership, and at the end of PRIMARY AND SECONDARY EVIDENCE. 193 a specified time to share equally the profits and losses of the venture. Now, the best evidence of the terms of agreement is the contract itself, and parol evidence will not be received as a substitute, except in the event of loss or destruction of the instrument. Q. What are some of the reasons on which this posi- tive rule of law is founded ? A. The principal reason is that the written contract is the highest evidence of what it contains, and what has been solemnly and deliberately done, ought not to be left to the sport of uncertain memory. As before stated, the most solemn written engagements would be of but little practical value if, after long years of reliance on them, one party could substitute his mere recollec- tion of what was agreed on for the highest evidence of the writing itself. Memory is treacherous. Very few per- sons can remember distinctly, and accurately repeat the details of a transaction which occurred yearsago. Prob- ably no two persons could agree as to these details. Like lines traced on the ocean strand to be swept away by the rising tide, fact pass from the memories of men, or sleep until awaked by the touch of a mysterious power. If the terms of contracts were left to uncertain memory, there would be no end of strife. Property rights would be wholly insecure, and the door to the most unblushing frauds and wicked and corrupt perjury thrown wide open. ‘‘To make assurance double sure,” in all ages of the world men have resorted to solemn writings as the surest depositories of the evidence of their rights of person and property. It is but the simple dictate of sound reason, founded on the experience of the ages past, of private interest as well as public policy, that every possible encouragement should be give to persons to put their agreements in writing, and that when they have done so each party to the contract should be held to abide by, stand to, and perform what has been written. Q. Suppose the law does not require an agreement to be put in writing, does the rule still hold good ? 25 194 Law AND PRINCIPLES oF EVIDENCE. A. It does. No matter how unimportant the subject- matter of the written contract, the writing itself is con- sidered the best evidence, and must be produced. It is the form of the contract itself as adopted by the parties which gives it peculiar dignity. When they conclude that it is of sufficient importance to put in writing they must trust in the writing and not to memory. Q. Suppose the written instrument to be lost or destroyed, what is the rule ? A. Then parol, or secondary evidence, of its contents will be received on the condition that the party offering the secondary evidence first satisfy the court of its loss or destruction, by showing that he has made an honest and diligent search for the instrument, in places or from persons where it would naturally and most likely be found, and that the search was fruitless. It should appear that every reasonable effort has been made to find it. If it be in the possession of the opposite party, notice to produce, in terms of the law, should be shown ; if in the possession of a third person, subpoena duces tecum should be served on him. If traced to the possession of a person now deceased, then it should be shown that application was made to his administrator or executor, if his estate is represented, and if not, then that inquiry was made of his heirs-at-law. Q. May it not be shown that the writing, when pro- duced, does not contain all the contract and that mate- rial stipulations were unintentionally left out, or that they were left out through the fraud of one of the par- ties or the mistake of both, or that there are terms in the contract fraudulently inserted by the other party or by the person who drew the contract ? A. It may. Q. May the mere incidents of a contract be shown without any infringement of this rule? A. They may. The rule is not intended to exclude parol evidence as to any matter merely incidental and not going to the substance of the contract. It may al- PRIMARY AND SECONDARY EVIDENCE. 195 ways be shown, for example, that the binding force and effect of the contract depends on the unexpressed condi- tions, and that such conditions have not been performed by the party seeking its enforcement. So long as the proof of incidents does not directly infringe the rule that parol contemporaneous evidence shall not be received to vary, add to or subtract from, the terms of a valid writ- ten instrument, it may be received. What are the inci- dents of the contract is a question for the court. It may always be shown that a deed or contract exists, without going into the contents. So it may be shown that, by a subsequent parol agreement, the written contract has been dispensed with, or that a new one has been substi- tuted, or that it has been modified or new conditions im- posed or old conditions changed. Or it may be shown that the contract relied on was never fully executed, or never delivered, or not executed as required by law, or that it is void for any other reason. No evidence will be received to vary the terms actually agreed on by the parties at the time of its execution, unless it comes un- der exceptions to be presently mentioned. Greenl. Ev. § 89: 1 Whart. Ev. § 63; Shoenberger v. Hackman, 37 Penn. St. 87; Cecil Bank vu. Snively, 23 Md. 253. Q. Where the facts sought to be shown are matters of record, and may be made to appear by inspection of the record, and are such matters as must be recorded, is parol evidence admissible ? A. It is not. The record is the primary evidence. The fact, for example, that ‘‘A” brought a suit against “‘B” and set forth a note, or other written obligation, as the foundation of the claim; that “‘B” pleaded non est factum; that the jury trying the issue found against the plea and found a verdict for the plaintiff at a certain term, for a certain amount; the fact that the defendant, in any case, demurred to a declaration on certain grounds, and that the court sustained or overruled the demurrer, or sustained or overruled a motion for nonsuit; that judgment was entered on a verdict for a certain sum; 196 LAW AND PRINCIPLES OF EVIDENCE. that execution issued and was levied on a certain tract of land on acertain day; that defendant interposed an: illegality on certain grounds; that the illegality was re- turned to the court from which it issued and was dis- missed on all the grounds taken and the execution or- dered to proceed; that a third person interposed a claim to the land levied on, and that the land was found sub- ject; that the defendant then applied for and had the land set apart to him as a homestead; or that a person was found guilty of a certain crime and sentenced to a certain term of penal servitude; that a deed of record embraced certain lands and was made in consideration of natural love and affection; that the decision of arbi- trators was made the judgment of the court and required one of the parties to pay a certain sum of money and the other to convey certain land; that it wasa common law or a statutory arbitration; that a certain person was ad- judged insane; that a caveat toa will set forth certain grounds of caveat; that a plea was or was not sworn to; that a will was admitted to probate in solemn or com- mon form; that al] persons interested were notified; that an answer to a garnishment admitted or denied the pos- session of property belonging to the debtor, and other like facts must be shown by the record itself, and parol evidence will not be received. See on this subject the following authorities: Dane v. Mallory, 16 Barb. 46; Phillips v. Costley, 40 Ala. 486; West uv. St. John, 68 Iowa, 287; Wynne v. Aubuchon, 23 Mo. 30; Reilly v. Cava- naugh, 29 Ind. 435; Hughes v. Christy, 26 Tex. 230; Regan v. Regan, 72 N. C. 195; Michener v. Lloyd, 16 N. J. Eq. 38; Perryman v. Greenville, 51 Ala. 507; Wilson v. McClure, 50 Ill. 366; Smith v. Smith, 43 N. H. 536. Q. Is a will admissible in evidence to show title with out proof of probate ? A. Itis not. The will is not operative to convey title until admitted to probate. The title to real estate, on the death of the ancestor, descends to his heirs, and of per- sonal property to the personal representatives. It isin the PRIMARY AND SkcCONDARY EVIDENCE. 197 power of the ancestor to change the rule of inheritance established by law, so far as his own estate is concerned, by executing a will in due form of law. The evidence that he has done so, is the will duly probated or proven. The law requires proof that it is his will and has dis- tinctly indicated what that proof shall be. See Taylor Ev. § 1426. Q. How is a foreign will proven? A. By producing the will. Q. Can a witness be contradicted by writing without producing the writing ? A. Where the writing can be produced it should be done. The witness should have full opportunity to in- spect the paper before being required to answer, whether he has signed the same, or whether he has made certain admissions in writing. If he signed it by his mark he may have the paper read to him, and be asked whether he made the mark. Whatever the nature of the instru- ment be by which it is sought to contradict him, he is entitled to inspect it, and counsel cannot read to him from the paper and then ask him if he signed it. The proper course is to exhibit the paper and then ask him if he signed it, and if he admit the execu- tion then to introduce it in evidence; or if he deny that he signed it to prove that he did, and then offer it to contradict him. See on this subject, Stark. Ev. § 226 ; Best Ev. § 474; Taylor Ev. § 1301; Arnold v. Stanfield, 8 Ind. 324; Stamper v. Griffin, 12 Ga. 450; Callanan v. Shaw, 24 Iowa, 441; Randolph v. Woodstock, 85 Vt. 291. Q. In suits for libel, where it becomes necessary to prove the publication, what is considered the primary evidence of publication ? A. It has becn held that the original manuscript from which the libelous publication is copied is only secondary evidence. So also a reprint of the first publication has been held to be secondary evidence. It is the publication which constitutes the libel. It is no libel until published. If printed, the first print is the primary evidence. If not 198 Law AND PRINCIPLES OF EVIDENCE. printed, but written, the first writing constitutes the primary evidence. See Bond v. Central Bank, 2 Ga. 99. Q. Will the fact that there are degrees in primary evi- dence authorize the exclusion of the weaker evidence on the ground that the stronger is not produced ? A. It will not. As before stated, there are degrees both in primary and secondary evidence. In neither case will the weaker evidence be excluded on the ground that the stronger is not produced. It is only where sec- ondary evidence of a fact is offered, when the primary is attainable, that the rule of exclusion may be safely in- voked. It is held, however, that where a party intro- duces the weaker primary or secondary evidence, when the stronger evidence is attainable, it is open to observa- tion, and may raise a presumption, that if he had offered the other evidence it would have been unfavorable to him; for why should one offer weak evidence when stronger is attainable. Q. In suits against telegraph companies for failure to deliver messages, what is the highest evidence as to what the message contained ? A. It is held that the original message is the primary evidence. Such being the case, the company being the custodian of the original message, as prepared by the sender, should be notified to produce it in court to be used as evidence before secondary evidence can be re- sorted to. The contents of the original message cannot be shown by parol. Barons v. Brown, 25 Kans. 410; Saveland v. Green, 40 Wis. 431; Williams v. Brickell, 37 Miss. 682; Cairo R. Co. v. Mahoney, 82 Ill. 73; Hawley v. Whipple, 48 N. H. 488; Durkee v. R. Co., 29 Vt. 127; Smith v. Easton, 54 Md. 138; Tel. Co. v. Hopkins, 49 Ind. 223. Q Where a telegram is sent toa particular place and addressed to a particular person who resides at that place, what is the presumption in such cases ? A. In the cases of telegrams, as well as letters, thus sent, the presumption is that the sendee received them. PRIMARY AND SECONDARY EVIDENCE. 199 Q. Is parol evidence admissible to defeat a written in- strument, where the party against whom it is offered at- tacks it for fraud or mistake ? A. Unquestionably the written instrument is open to attack by parol evidence for fraud or mistake. Fraud, it is said, avoids all contracts, however solemnly executed, and the courts, both of law and of equity, will sanction very great latitude in the admission of evidence neces- sary to defeat and expose it. The ordinary rules of evi- dence will sometimes be forced to bend in order to the attainment of this paramount object. Fraud is always subtle in its nature, and often takes shelter under the forms of law and the strict rules of evidence. In such cases the rule should be made to stand aside so as to ex- pose the fraud and relieve the innocent. The primary object of all rules of evidence is, to promote the impartial and just administration of the law. But no rule of law or evidence should ever be successfully invoked to shelter fraud. If, therefore, an instrumentin writing be founded on fraud or mistake, parol evidence will be received to show this fact. Nor does the admission of parol evi- dence really violate the rule touching the varying of valid written instruments by parol contemporaneous evi- dence. If the agreement is founded in fraud it amounts to no agreement; it is void, and the instrument which contains the void agreement, is without validity or effect. So, if the:agreement is the result of the mistake of one of the parties, induced by the fraud of the other, and in many cases when the mistake is mutual, it has no in- herent validity, and the mere fact of its invalidity for any of these reasons, may be shown by parol evidence. Brainerd v. Arnold, 27 Conn. 617; Bryce v. Ins. Co., 55 N. Y. 240 ; Cooper v. Ins. Co., 60 Penn. St. 299. Q. What is the rule as to the admissibility of parol evi. dence to explain latent and patent ambiguities ? A. Latent ambiguities, or such ambiguities as do not arise out of the instrument itself, but out of the matters de hors the instrument, are always open to explana- 200 Law AND PRINCIPLES OF EVIDENCE. tion by parol evidence. In such cases the instrument is said to be plain enough. There is no ambiguity in the terms employed, nor in the instrument in its entirety. The trouble arises in the application of the instrument to outside objects. A familiar illustration may be furnished in the case of a testator who devises to his grandson, William Jones, a certain tract of land. The testator has two grandsons by that name. Here there is no am- biguity in the instrument, but it is in its application. To which of his grandsons did the testator refer? The am- biguity is latent and parol evidence will be received to explain it. Or, where the testator devises to his grand. son, William Jones, one lot of land lying and being in Cedar Creek district, in Coweta county, and has two lots of land in the same district. The instrument is plain, but where it is sought to apply it, the aid of parol evi- dence may be called in to determine to which of the lots testator referred. Wherever the doubt is as to the ob- ject, the ambiguity is latent and may be helped by parol evidence; but where it is on the face of, and in the in: strument itself, it is patent and parol evidence will not, as a general rule, be received. The ambiguity is said to be patent when it inheres, so to speak, in the instru- ment. It is subjective and extrinsic evidence will not be received. Latent ambiguities are said to be objective. In one case the ambiguity is as to the subject; in the other as to the object. On the subject of patent and latent ambiguities, see Goodman v. Henderson, 58 Ga. 567; Harriman v. Baptist Church, 63 id. 166; McGuire v. Stephens, 42 Miss. 724; Saulsbury v. Blandys, 60 Ga 646; Force v. Hibbard, 63 Ala. 410; Sikes v. Shews, 74 id. 382; Meyer v. Mitchell, 75 id. 475; Goff v. Roberts, 72 Mo. 570; Wilson v. Morse, 52 Wis. 240; Ritchie v. Pease, 114 Til. 353; Farmer v. Batts, 83 N. C. 387; Brandon v. Leddy, 67 Cal. 48; Norris v. Hunt, 51 Tex. 609; Brown v. Guice, 46 Miss. 299; Wharton Ev. Ambiguity; Taylor Ev. $8 1212, 1218. Q. Where the law requires an instrument to be in writing, in order to its binding force, and the same is PRIMARY AND SECONDARY EVIDENCE. 201 wholly defective in a material part, can the defect be aided by parol ? A. It cannot; for if parol evidence be received to aid a material and wholly defective part or to supply a ma- terial part, then the whole contract might be set up by parol and the law would be of no force. No rule for the admission or exclusion of evidence should conflict with the law. Q. Is parol evidence admissible to affect or alter the legal effect of an instrument in writing ? A. Itisnot. It may be shown that subsequently to the execution of the instrument the parties agreed to ex- tend the time of payment, or that the rate of interest should be changed, or that the claim should be paid in land instead of money, provided there be a con- sideration to support the agreement. But it can- not be shown, for example, that the payee of a note agreed at the time of the execution not to sue within twelve months after the maturity of the note, or that he would reduce the rate of interest after maturity, or that he would accept the accrued interest at maturity and in- dulge the principal for another year; or that the note might be paid in cotton at acertain price. Durgin v. Ireland, 14 N. Y. 322; Hale v. Handy, 26 N. H. 206; Jackson v. Andrews, 59 N. Y. 244; Barnes v. Bartlett, 47 Ind. 98; Knowles v. Knowles, 86 Ill. 1; Randolph v. Perry, 2 Ala. 376. The admissibility of such evidence is in direct conflict with the rule which does not admit parol contemporaneous evidence to vary, add to or sub- tract from, the terms of a valid written instrument. Q. Are not some patent ambiguities open to explana- tion by parol ? A. They are. ‘‘ Where the ambiguity is patent in the sense that the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of. several things is meant by it, the rule is inflexible that no evidence to supply the deficiency will be admitted.’’ Starkie gives the follow- 26 202 Law AND PRINCIPLES OF EVIDENCE. ing definition of a patent ambiguity: ‘‘By apparent ‘ambiguity must be understood an inherent ambiguity which cannot be removed either by the ordinary rules of legal construction or by the application of extrinsic and explanatory evidence, showing that expressions prima facie unintelligible are yet capable of conveying a certain and definite meaning. But this evidently falls short of supplying a practical test by which to determine a przore, whether a given instance of ambiguity, apparent on the face of the writing, is explainable or not, by evidence extrinsic. It leaves you, in a variety of instances, to go out of the instrument and experiment, and if the search is unsuccessful it pronounces the ambiguity pat- ent, and therefore fatal.” The authors to the notes to Philips on Evidence cite the language of the master of the rolls in Colpys v. Colpys, Jacob, 451, on patent am- biguities, as follows: ‘‘ When the person or the thing as designated on the face of the instrument by terms imper- fect and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered an objection to the reception of the evidence of those circumstances, that the ambig- uity was patent, manifested on the face of the instru- ment. When a legacy is given to a man by his sur- name, and the Christian name is not mentioned, is not that an ambiguity? For it is held that extrinsic evi- dence is admissible. The evidence is not to produce a construction against the direct and natural meaning of the words; not to control a provision which was distinct and accurately described; but because there is an ambig- uity on the face of the instrument; because an indefinite expression is used, capable of being satisfied in more ways than one, this does not exclude extrinsic evidence.” Q. Do latent, as well as patent, ambiguities sometimes render instruments void ? A. They do. Where the extrinsic evidence intro- PRIMARY AND SECONDARY EVIDENCE. 203 duced fails to clear up the doubt, the instrument is inoperative, where the subject-matter of the ambiguity is material. Q. Where one sets up that there is a latent ambiguity, must he show it before he will be allowed to introduce extrinsic evidence ? A. He must. Q. What is the general rule on this subject ? A. When the description of a person or thing is applic- able to more than one subject or object, parol evidence will be received to determine to which it applies. Cowen and Hill’s notes to Phillips on Evidence, 1262. Any evidence which illustrates that question is admissible. Q. Are the declarations of a testator at the time of the execution of a will admissible to explain ambi- guities ? A. They are. They are admissible to show the inten- tion of the testator. Declarations made before the exe- cution are held to be of more weight than those made afterwards. The weight to be attached to declarations, however, must often depend on the circumstances under which they were made, as well as the time at which they were made. Q. Will extrinsic evidence be received to prove an intention where there is nothing in the will to author- ize it ? A. It will not. Intentions cannot be supplied, they can only be aided by extrinsic evidence. The intention is always to be ascertained from the words, and words cannot be added by parol evidence. In other words, parol evidence will not be received to supply an intention or add words; but will be received to show what the intention was in the light of the words already employed. It is not the object of parol evidence to make a will, but to show what the will is. Q. May new matter of devise or a new devisee be added by parol? 204 Law AND PRINCIPLES OF EVIDENCE. A. They may not. ‘An uncertainty which arises from applying the description contained in the will, either to the thing devised 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 silent on either, cannot be imported by parol evidence into the will itself.” Q. Where a testator has left a blank for the devisee’s name, will parol evidence be received to supply it ? A. It will. Q. What is meant by the maxim: Falsa demonstratio non nocet? Q. It is meant that a false description does not injure. For example, if one grant to another a certain lot of land in Cedar Creek district, Coweta County, Georgia, which was devised to him under the will of his grandfather, the land will pass, although he did not get it from his grandfather’s estate. So, where land is conveyed and fully described by metes and bounds, title will pass, although the deed locate the land in the wrong county. Where the description, however, is so defective that it is impossible to locate the land, it will not pass. ‘‘ Where no subject-matter can be found corresponding with one part of the description, or where a subject-matter is proved to exist, which might satisfy either part of the description taken separately, but from the fact of such parts being incongruous, both cannot take effect; in which instance the most certain part is preferred and the other rejected as having been inserted through misap- prehension or mistake.” Lord Bacon says: ‘If there be some land wherein all the demonstrations in a grant are true, and some wherein part are true and part false, | the words of such grant shall be intended words of ' true limitation to pass only those lands wherein all the circumstances are found to agree.”’ A. Where the words of an instrument are plain and unambiguous, is it not the duty of the courts to give full effect to them ? PRIMARY AND SECONDARY EVIDENCE. 205 Q. It is, and parol evidence will not be received to give a meaning different from that which is clearly deducible from the language employed. The question is not what the party executing the instrument intended to express, but what didheexpress. For, although what is expressed may be very unreasonable and inconsistent with what may have been the intention of the party, it must stand. Q. Where evidence offered relates to the execution of the instrument, may the declarations of the party be received to prove intention ? A. They may. Where, for example, there is doubt as to whether an instrument was intended asa deed or a will, declarations of the maker at the time of the execu. tions will be received to show what was intended. So declarations accompanying the act of delivery may be shown to determine whether an | instrument isa deed or a simple contract. Q. Where words used in an instrument are of doubtful meaning, and it becornes necessary to ascertain their meaning in order to construe the instrument, will parol evidence be received to explain them ? A. It will. The general ruleis that ‘‘terms are tobe understood in the plain, ordinary and popular sense, unless they have generally, in respect to the subject matter, or by the known usage of trade, or the like, ac- quired a peculiar sense distinct from the popular sense of the same words.” Where words of art or words which have a peculiar local signification are employed, it is proper to resort to parol evidence to explain them. Words are often used in instruments which are not to be found in dictionaries and really have no known meaning except in particular localities. Yet, if such words are found in writings, it is the duty of the court to receive evidence as to their local meaning and of the intention of the parties to use them in the sense generally given to them in the locality. Without resorting to parol evidence in such cases, important documents would often be rendered nugatory. 206 Law AND PRINCIPLES OF EVIDENCE. Q. May a mistake in the date of a chattel mortgage be shown by parol evidence ? A. It may, and it may be shown that it was not de- livered on the day it bears date. The mistakes should be set forth in the petition for foreclosure. A. Does the rule as to varying the written instrument apply to evidence showing that there was an agreement to be afterwards written, but which does not show its terms ? A. It does not. Ball v. Winchester, 32 N. H. 445. Q. Is parol evidence admissible to show that the terms of a contract are to cease on a condition not named in the contract ? A. Itis not. Pierce v. Tidwell, (Ala.) 2 So. Rep. 15. Q. Where the law requires a contract to be in writing, and the contract produced in evidence shows that one party had signed it and that it is to be completed by the acceptance of the other party within a limited time, will parol evidence be received to show that the time was extended ? A. It will not. Tuttle v. Robinson, 33 N. H. 110. Q. May a party to a contract show what he meant, or what the contract means, by what he wrote to a third party after the making of the contract ? A. He may not. Hill v. Manuf. Co., (Ga.)3 8. E. Rep. 445. Q. Where there were certain promises and undertak- ings in parol made by one of the parties, and the other is induced to sign by such promises, is it open to ex- planation, modification or reformation by parol ? A. It is, but the evidence must be clear, positive and distinct as to the character of the promises, and that they really induced the other party to sign. Thudium v. Yost, 11 Atl. Rep. 436. Q. Where a note is given payable at a certain time, will parol evidence be received to show that the time of payment was to be postponed ? A. It will not. PRIMARY AND SECONDARY EVIDENCE. 207 Q. Is parol evidence admissible as among indorsers on a promissory note to show that they were merely co- sureties ? A. It is. Q. Will parol evidence be received to show that a note is founded on a gambling consideration; that it was given for the sole purpose of speculating in futures ? A. Tt will. Q. Where the question of fraudulent intent is in issue, and the party charged with the fraud is examined as to his intentions, will he be permitted to state what his intentions were ? A. He will, but he cannot speak as to the intentions of other persuns. Q. Where the obligee in a bond fraudulently induces one of the obligors to sign it, and the fraudulent repre- sentations of the obligee really induced the obligor to sign, may this fact be shown by parol in a suit against the obligor ? A. It may. ° Q Where one guarantees that machinery will do cer- tain work, and fully sets forth in writing what it will do, is parol evidence admissible to show that a certain test was to be applied in order to determine its efficiency ? A. It is not. Currier v. R. Co., 34 N. H. 509. Q. Is parol evidence admissible to prove a usage which contradicts the terms of the written contract ? A. It is not. Usage is only available to explain a con-, tract in cases of ambiguity. Q. Where the grounds on which a judgment was rendered do not fully appear, is parol evidence admis- sible to show the grounds ? A. It is, where such grounds were within the issues. Cable v. Ellis, 11 N. E. Rep. 193. Q. Is parol evidence admissible to contradict the date in a deed, or to show fraud in procuring the acknowledg- ment or execution of the deed ? 208 LAW AND PRINCIPLES OF EVIDENCE. A. It is. Parol evidence is also admissible to explain all the circumstances surrounding the grantor at the time of the execution. This may also be done where the description in the deed is doubtful, or where it is claimed that the grantor was not competent to make a deed, or where the deed was executed under duress. Q. Is parol evidence admissible to show a considera- tion different from the one expressed ? A. Itis. Q. May an instrument under seal be contradicted by another instrument under seal ? A. It may. Q. May the real consideration for a deed be shown by parol? A. The consideration for a deed is open to explanation by parol, and, as above indicated, the consideration may be shown to be different from that which is expressed. Or the deed may be shown to be without any consideration, or to have been in fraud of creditors. Christopher v. Chris- topher, 64 Md. 583; Newbold v. Mead, 57 Penn. St. 491; Hair v. Little, 28 Ala. 236; Hystra v. Capelle, 61 Mo. 578; Stiles v. Giddens, 21 Tex. 783. Q. May the consideration expressed in a deed be attacked for fraud by a stranger ? A. It may. Recitals of purchase money in contracts generally are open to explanation by parol. See Whart. Ev. § 1042; Taylor v. Merrill, 64 Tex. 494; Coles v. Saulsby, 21 Cal. 47; Elder v. Hood, 38 Ill. 5383; Swope 2. Forney, 17 Ind. 385; Baxter v. Greenleaf, 65 Me. 405; Bratt v. Bratt, 21 Md. 578. Recitals of purchase money in deeds are not conclusive between the parties. They are held to be only prima facie evidence, and as to third persons recitals are not evidence. Twomey v. Crowley, 137 Mass. 184; Mason v. Buchanan, 62 Ala. 110; Han- nibal R. Co. v. Green, 68 Mo. 169; Meyer v. Casey, 57 Miss. 615; Stufflebeem v. Arnold, 57 Cal. 11; 2 Whart. Ev. § 1042. PRIMARY AND SECONDARY EVIDENCE. 209 Q. In contracts generally, will not parol evidence be received to show what the consideration really was, or to show that there was no consideration? A. It will. Quimby v. Morrill, 47 Me. 470; Hannan wv. Hannan, 123 Mass. 441; Hebbard o, Haughian, 70 N. Y. 57; Farnum v. Burnett, 21 N. J. Eq. 87; Watterson ov. R. Co., 74 Penn. St. 208; Miller v. McCoy, 50 Mo. 212; Stead v. Hinson, 76 Ala. 298; Clements v. Lundrum, 26 Ga. 401; Huebsch 2. Scheel, 81 Ill. 281; McDill v. Gunn, 43 Ind. 315. Q. What is the general rule as to engrafting parol con- siderations on written contracts ? A. The general rule is that parol conditions cannot be engrafted. The question in each case is, whether such evidence varies the terms of the instrument. Dr. Whar- ton quotes Bentham as making a distinction between dispositive and nondispositive documents, the latter being casual and not intended to create any contractual rela- tion, while the former is deliberately made and intended to dispose of certain rights of property. In the former case the presumption is, that the minds of the parties met and that all the mutual stipulations and all the conditions were merged in the contractual document; and new con- ditions and stipulations cannot, as a rule, be added by parol evidence. See 2 Whart. Ev. § 920, and authorities. cited; Snyder v. Koons, 20 Ind. 389; Dudley v. Vose, 114 Mass. 34; Frost v. Blanchard, 97 id. 155; Hale ». Handy, 26 N. H. 206; Trammell v. Pilgrim, 20 Tex. 158; Koeh- ring v. Muemminghoff, 61 Mo. 403; R. Co. v. R. Co., 73 Ala. 426; Smith v. Odom, 63 Ga. 499; Whitehead ». Park, 53 id. 575; Dickson v. Harris, 60 Iowa, 727; Cease v. Cockell, 75 Ill. 484; Mann v. Smyser, 76 id. 365; Treatman v. Fletcher, 109 Ind. 105; Schreiber v. Butler, 84 id. 576; Hunting v. Emmart, 55 Md. 265; Building Soc. v. Smith, 54 id. 187; Weiler v. Hottenstein, 102 Penn. St. 499; Carlton 2. Wine Co, 33 N. J. Hq. 466; Van Bokkelen v. Taylor, 62 N. Y. 105; Morrill ». Robin- son, 71 Me. 24; Barnstable v. Ballou, 119 Mass. 487; 27 210 LAW AND PRINCIPLES OF EVIDENCE, Drake v. Starks, 45 Conn. 96, and other authorities cited. Q. Where it is sought to reform a contract on the ground of mistake, what is the rule ? A. Parol evidence is admissible te show the mistake, and the evidence must be clear and positive that the mis- take was mutual. Goltra v. Sanasack, 53 I. 456; Hud- son v. Stockbridge, 102 Mass. 45; Monroe v. Behrens, 67 Penn. St. 459; Bunse v. Agee, 47 Mo. 270; State v. Frank, 51 id. 98; Car Co. v. Lumber Co., 99 Penn. St. 605; Brad- ford v. Bradford, 53 N. H. 463; Mast v. Pearce, 58 lowa, 579. Q. May it not always be shown that fraud was used to procure the contract ? A. It may, or it may be shown that the contract was usurious; or that it was founded on a gaming considera- tion; or that it was founded on a consideration which makes it void under the law; or to show that it was founded on mistake, and that the minds of the parties never met; or to show that the instrument has been dis- charged or satisfied or substituted by a subsequent parol contract. Q. Where peculiar, technical, scientific or mechanical terms are employed in a contract, will parol evidence be received to explain their meaning ? A. It will. Q. Is parol evidence admissible to rebut a presumption raised by the terms of a written instrument ? A. Itis. It may be shown, for example, that an ad- vancement made to a child, subsequent to the making of a will, was not intended to addeem a legacy of the same amount. Q. May a receipt be contradicted by parol evidence ? A. A receipt is only prima facie evidence of payment, and may be contradicted by parol. A. In the construction of ancient deeds and other ancient documents, will evidence of usage be received ? PRIMARY AND SECONDARY EVIDENCE. 211 A. It will. The reason for allowing evidence of usage is, that the meaning of the instrument at the time it was written may be considered by the court whose duty it is to construe it. Usage may always be shown to explain ambiguous instruments, or doubtful words or phrases in any contract, whether ancient or not. The great object is to place the person whose duty it is to construe the in- strument, in precisely the position of the parties at the time they executed it, so that the circumstances surround- ing them may be seen and considered. ‘‘The true and appropriate office of a usage is to interpret the otherwise indeterminate intentions of the parties, and to ascertain the nature and extent of their contracts arising not from express stipulations, but from mere presumptions and implications, and acts of a doubtful nature. It may also be admitted to ascertain the true meaning of a particular word, or of particular words in a given instrument when the word or words have various senses, some common, some qualified and some technical, according to the sub- ject-matter to which they are applied.” Usage may be applied when it becomes necessary to construe mercan- tile contracts or contracts in other business matters, me- chanical, professional and agricultural. Cowen & Hill's Notes to Phil. Ev. 1498, ef seg. See authorities there cited. The usage of particular trades or professions, as well as the usage of a particular place may be shown. Q. What is essential to the validity of a usage ? A. It should appear to be well settled and to have been acted on for such a length of time and with such uniform- ity as that it is safe to presume that the parties acted on it in making their contracts. Q. Where the usage contradicts a settled rule of law, will it be of any force ? A. It will not. Q. Ought it to appear that the parties contracted with reference to the usage ? A. It ought. 212 Law AND PRINCIPLES OF EVIDENCE. Q. Are usazes which are contrary to the policy of the law, us where they are in restraint of trade, or originate in fraud, or are unjust or unreasonable, of any force ? A. They are not. Q. Will not some usages be judiciously recognized ? A. They will, but particular usages which have not been so far acted on as to be incorporated in the law of mercantile contracts, must be proven like any other fact. Q. Where a deed conveys an absolute estate may it be shown by parol that the grantor intended to convey a life estate only ? A. It may not. Nor may it be shown that it was in- tended to convey a part, where it conveys all, or that the person mentioned as grantee was not intended. Q. In a suit for breach of covenant of warranty of title to land, may it be shown by parol that the obligee knew of the incumbrances on the land and agreed to take the chances against eviction ? A. It may not. There is conflict of authority on this point, however. Suppose the grantee took the land at a greatly reduced price on account of the incumbrance, why should it not be shown that he agreed, on this ac- count, to take the chances against incumbrances ? Why should not this fact be shown by parol, if it were the real inducement for the grantor to part with title ? Q. May a deed, absolute on its face, be shown by parol to have been intended merely as a mortgage ? A. It may, as between the parties, and as to strangers who had knowledge of the fact and who have not acted on the bona fide belief that the deed was absolute. Q. May it be shown by a creditor that a conveyance, absolute on its face, was really intended and understood by the parties as a mortgage, and that the object of the grantor was to screen the property and delay, defeat and defraud his creditors ? PRIMARY AND SECONDARY EVIDENCE. 213 A. Such evidence is admissible, and when the instru- ment is attacked for fraud by the creditor, parol evidence is admissible to show all the circumstances attending the conveyance, or any other fact which illustrates the ques- tion of fraud. Q. Is parol evidence admissible to vary an unconditional indorsement of a note ? A. It is not, but it may be received to explain the con- tract of indorsement. Parol evidence is also admissible to show that one co-surety agreed to hold another harmless. A. Where certain considerations are expressed in a writing as moving a party to execute a contract, is parol evidence admissible to show that there were other and additional considerations ? A. Itis not; for all prior and contemporaneous matters are considered as merged in the contract. Prior conver- sations touching the contract are sometimes admitted, not for the purpose of explaining the contract, but to show whether it was really executed. On the same principle it has been held that previous correspondence between the parties to a contract subsequently entered into is not admissible to explain or vary the contract, unless fraud or mistake is alleged. Q. May a party to a note show that he was in no event to incur any personal liability ? A. He may not. Q. Where a deed is absolute on its face, will parol evi- idence be received to show that the grantee agreed to turn over the deed to the grantor on certain unexpressed conditions ? A. It will not. Q. Where a written contract is silent as to certain matters, and clearly ambiguous, will parol evidence be received to explain it? A. It will, where it does not contradict what is ex- pressed. Johnston v. Patterson (Ga.), 13 S. E. Rep. 171; Am. Dig. (1891), 1702, § 676. 214 Law AND PRINCIPLES OF EVIDENCE. Q. Where the written contract, as it is offered in evi- dence, clearly shows that the entire contract was not re- duced to writing and is not intelligible as it stands, is parol evidence admissible to show the whole contract ? A. It is. Q. Where a note, on its face, bears a certain interest, is parol evidence admissible to show that it was agreed that the note should bear a lesser rate ? A. It is not admissible. Q. On what principle is it admissible to show the cir- cumstances surrounding the parties at the time the con- tract was executed. A. The object is to ascertain and not to vary the con- tract. In other words it is admitted simply to show what the contract really was. Q. Where by the statute of frauds, the contract is re- quired to be in writing, is not the rule excluding parol evidence to vary it much more stringent? A. It is. Q. Where plaintiff and defendant enter into a contract, and its terms are clear and specific, will parol evidence be received to vary, enlarge or extend it ? A. It will not. On this subject, see Imboden v. Min- ing Co., 70 Ga. 105; Beadles v. McElrath, 85 Ky. 230; Ferguson v. Davis, 65 Mich. 677; Machine Co. v. Wil- son, 39 Minn. 467; Bowe v. Dotterer, 80 Ga. 50; Howard v. Britton, 71 Tex. 286; Brison v. Brison, 75 Cal. 525. Q. Where certain land is conveyed by deed for a speci- fied consideration, may it be shown by parol that other property not mentioned in the deed was covered by the consideration ? A It may not unless there is an allegation of fraud, accident or mistake. Q. Where no definite time is specified for the continu- ance of a contract, is parol evidence admissible to show either that the question was left open for future adjust- PRIMARY AND SECONDARY EVIDENCE. 215 ment or to show the time for which the contract was to continue ? A. It is. Q. What should be the character of the evidence where it is sought to vary the written instrument by parol proof ? A. ‘“‘The written agreement, the law says, is the con- tract between the parties; and that when any person seeks to change the contract in writing, he must do it by clear, precise and indubitable proof. And by that kind or measure of proof is meant that the source from which the testimony comes must be credible; the statements of the witnesses must be clear and distinct as to what was said and done; and altogether, it must be of a character to convince the minds of the jury that the part claimed was omitted, either by fraud, accident, or, if not so kept out of the contract, that the party who complains of the omission was induced to sign the contract by the state- ment or the contemporaneous agreement made at the time the contract was signed.” Ferguson v. Rafferty (Pa.), 18 Atl. Rep. 484. Q. What is therule as to the admissibility of parol evi- dence to explain receipts ? A. Receipts being only prima facie evidence of pay- ment, parol evidence is always admissible to explain them. Q. Where the language of a contract is plain, will parol evidence be received in order to change the con- struction ? A. It willnot. It is received to make what is ambiguous plain, but not to change what has been plainly written. Q. Where a subscriber to the stock of a corporation is sued on his subscription, may he set up an oral condition to his subscription by parol evidence ? A. He may not. Q. Where a note is placed in the hands of a third party, to be held by him until a settlement could be made by 216 Law AND PRINCIPLES OF EVIDENCE. the maker and payee, is parol evidence admissible to show such an agreement ? A. It is, the object not being to vary the agreement, but simply to show what the agreement was. Q. Where a bona fide indorsee brings suit on the pur- chase money notes for land, may the maker show that there were certain conditions not mentioned in the con- veyance ? A. He may not. Q. Where a party offers what purports to be a record in evidence, will parol evidence be received to show that it is not a record ? A. It will. Q. Is it admissible to show by parol evidence that a judgment was entered after fi. fa. was issued, where it appears that the judgment was entered before ? A. It has been held that such evidence is not admissible. Q. May extracts from public documents, kept in the office of secretary of state, or state treasurer, comptroller general, or other state officials who keep public docu- ments be given in evidence ? A. When such extracts are properly authenticated, and contain a complete transcript of such parts of the record as are pertinent to the issue they will be received. The public documents from which abstracts may be taken are in the nature of records, and the allowance of abstracts in evidence, as indicated above, is based on the ground of the very great inconvenience which would nec- essarily result from withdrawing them from file. The people generally are interested in such documents, and have the right to inspect them. If they could be taken from their places, and carried about the country, there would not only be danger of loss, but there would be great inconvenience to the public. Q. Does the rule allowing abstracts of public docu- ments, when properly certified, apply to private docu- ments, such as the books of a corporation ? PRIMARY AND SECONDARY EVIDENCE. 217 A. It does not; but by the statutes of some of the states provision is made for procuring copies of such parts of the books of corporations as may be pertinent to the issues, on application to the proper tribunal, for the pur- pose, and on notice given to the adverse party. Itis, how- ever, more a rule of convenience tuan of law, and where the rights of either party require the production of the books themselves this rule of convenience yields to the general law governing such cases. Q. On what grounds are non-judicial public documents received in evidence ? A. It is on the ground that such documents have been made by the accredited agents of the public appointed for the purpose, and partly on the ground of the publicity of the subject. Stark. Ev. 160. Q. Is parol evidence admissible to show that the obligee in a bond informed the surety at the time of the execu- tion, that the signature was a matter of form, and that he would not be called on for payment ? A. It has been so held. It rests on the idea, however, that the surety was induced to sign by the promise and representation of the obligee, and that it was part and parcel of the contract. Q. May a deed absolute on its face be shown to bea mortgage ? : A. It is so held. Q. Where a deed is attacked as being in fraud of creditors, may parol evidence be introduced to show the circumstances in which it was made ? A. It may. In cases of fraud the rule is always re- laxed, and the courts go to great lengths in receiving parol evidence to establish fraud. Q. May the circumstances attending the execution of an instrument always be shown by parol evidence ? A. They may where the instrument is affected with uncertainty. When a fact, necessarily pertaining to the 28 218 Law AND PRINCIPLES OF EVIDENCE. subject-matter of the contract, is not mentioned in the contract, parol evidence is admissible to ascertain the meaning. For example, in an action by a stone mason, for erecting a building according to a written contract, which does not specify the kind of stone to be used, parol evidence is admissible to show the kind of stone, and to show all the circumstances. Weaver v. Craighead, 104 Penn. St. 288; Greenl. Ev. §§ 286-288. It may not be re- ceived to contradict what is written, on the very obvious principle that the writing itself is the best evidence of what the parties intended ; but parol evidence is often received to explain the subject-matter of written agree- ments, when it does not contradict, nor seek to add stipu- lations in conflict with the meaning of the contract. Philadelphia v. Fox, 64 Penn. St. 171; Miller v. Ficht- horn, 31 id. 259; Swett v. Shumway, 102 Mass. 365. Q. Referring again to the usage of trade as distinguished from a common law custom, in what circumstances may it be resorted to ? A. Evidence of the known and usual course of a par- ticular trade or business may be received to show that the transaction in question was according to the ordinary and usual course of businessto which it related. It is not essen- tial to show that such usage is so ancient, that the memory of man runneth not to the contrary, nor that it should combine all the other elements of a common law custom. Q. What other requirements are there to the admission of parol evidence in such cases ? A. The usage of the particular trade or business should be known, uniform, reasonable and not contrary to law nor opposed to public policy. Evidence of such usage may be considered in determining the otherwise uncertain meaning of a contract, unless the proof of such usage contradicts the express terms of the agreement. Q. Suppose the usage is that of a particular place ? A. If it be known to the parties concerned or has been so long continued, or so generally known in the particu- PRIMARY AND SECONDARY EVIDENCE. 219 Jar place as to justify the presumption that it must have been known to the parties, then the evidence will be re- ceived. It is also relevant to prove that the words in which a contract is expressed, as respects the particular trade or business, to which it refers were used in a par- ticular sense, different from the ordinary meaning. Add. Con. 208; Kelton v. Taylor, 47 Am. Rep. 284; Jonsson v. Thompson, 97 N. Y. 642. As to distinction between usage of trade and a common-law custom, see Carter v. Coal Co., 77 Penn. St. 286; Hart’s Appeal, 96 id. 374. Q. Where the construction of a will is in doubt, what is the rule as to the admissibility of extrinsic evidence ? A. Noresortcan be had to extrinsic evidence unless there are ambiguities. The intention of the testator will be dili- gently sought after in the instrument itself, by a careful review of the whole instrument, before parol evidence will be received to aid the construction. West v. Randle, 35. E. Rep. 454. Q. Referring again to the subject of the admissibility of parol evidence to contradict receipts, suppose the re- ceipt is in the nature of a contract, does it stand on the same grounds as other contracts ? A. It does as to being varied or contradicted by parol evidence. A bill of lading, for example, is both a receipt and a contract to carry and deliver. The general rule however, is that written admissions are not conclusive unless strangers have acted on them in such a manner, and to such an extent, that the doctrine of estoppel may be invoked. Q. What is the general rule in the United States as to that part of a deed which acknowledges the receipt of the purchase money for land ? A. The general rule is that such part of the deed is merely formal, and that the real consideration may be shown, unless such proof affects the interests of bona fide purchasers without notice. A distinction has sometimes been made between allowing the proof of a different con- 220 Law AND PRINCIPLES OF EVIDENCE. sideration and an additional consideration, the courts holding that an entirely different consideration could not be shown, while an additional consideration of the same kind might be shown. But the general rule is as stated ahove. Q. Is parol evidence always admissible to show that a contract is absolutely void ? A. It is, whether the proof affects the parties or stran- gers; for if the contract be absolutely void there is no contract, and if there is no contract there is no infringe- ment of the rule. | Q. Will parol evidence be received to show that a con- tract is usurious, although it does not so appear on its face ? A. It will. Q. Where a mortgage purports to be given for a fixed sum, may parol evidence be introduced to show that it was given for future advances ? A. It may. Q. May an instrument in writing be varied by parol evidence where such evidence is offered by a stranger ? .A. It may, and in order to vary it by parol evidence, he may introduce a party to the instrument. Q. What is the general rule as to the proof of the testi- mony of a witness on a former trial ? A. ‘The testimony of a witness on a former trial can- not be proved by another, except in case of the death or insanity of the witness, or where it appears that by rea- son of physical disability of a permanent character, he is unable to be examined, and that by the exercise of due diligence his deposition could not have been taken, or where the witness is beyond the seas or absent from the state, and bis whereabouts cannot, by due diligence, be ascertained, or where, by procurement of the opposite party, the witness absents himself from the jurisdiction of the court after having been duly summoned.” Kirch- ner v. Laughlin, 28 Pac. Rep. 175; Am. Dig. (1890), 1415, PRIMARY AND SECONDARY EVIDENCE, 221 § 618. In such cases the testimony of the absent witness. may be reproduced by any one who remembers it. Q. How may papers pertinent to the issue and in the power, custody and control of the adverse party, be brought into court ? A. By simple notice to produce. The notice should be in writing and served on the adverse party, as prescribed by the statute. The papers called for should be particu- larly described and should be pertinent to the issue. The laws of each state provide for the time and mode of ser- vice of notice. On proper proof made of the service of such notice, secondary evidence of the contents of the papers will be received, on failure of the party notified to produce. Lowell v. Flint, 20 Me. 401; Com. v. Goldstein, 114 Mass. 272; Auger Co. v. Whittier, 117 id. 451; Avan v. Fry, 69 Ind. 91; Bright v. Young, 15 Ala. 112; Merwin uv. Ward, 15 Conn. 377. Q. Where the party notified to produce fails to do so, may the contents be shown without proving the execu- tion ? A. They may. It is also generally held that where one is notified to produce and fails to do so, and there are two constructions which may be placed on the paper, one favorable and the other unfavorable to him, that which is most unfavorable will be adopted. This rule is founded on the idea that if there be doubt as to the proper construction, it is in the power of the party to clear it up by producing the instrument, and where he fails to produce, the presumption is against him. | Q. Where a paper has been lost, will secondary evi- dence of its contents be received ? A. On clear proof of the loss, it will. It must also be shown that diligent search has been made for the paper, in places where it would most likely be found. Q. Where the party or his attorney has a paper in court which the opposite party desires to use in evidence, may the court compel its production or admit secondary evidence of its contents? 222 Law AND PRINCIPLES OF EVIDENCE, A. The rule is, that where the paper is part and parcel of the opposite party’s case, notice must be served in order to authorize proof of the contents. But where the paper is not of that character and is of such a nature as that either party is entitled to use it, the court may compel its production when in the possession of one party or admit secondary evidence. Q. Where the paper called for would be irrelevant, will the mere fact of failure to produce authorize the proof of its contents ? A. It will not; and if it appear that the paper would be wholly irrelevant, no presumption can arise against the party failing to produce. Moulton v. Mason, 21 Mich. 364; Rives v. Thompson, 41 Ga. 68. Q. Where one party notifies another to produce a paper, and the other produces it, is the first party still bound to prove its existence ? A. Where the party to whom notice has been given to produce, himself relies on the paper produced as evidence, the other, it is held, is not bound to prove it. Herring v. Rogers, 30 Ga. 615; Williams 2. Keyser, 11 Fla. 234; Roger v. Hoskins, 15 Ga. 270; Jackson v. Kingsley, 17 Johns. 157. Q. Is the party calling for the document bound to put it in evidence when produced ? A. He is not. Q. Where the party calling for the instrument receives and inspects it and thus gets in possession of its contents, is he bound by it ? A. By some of the American courts it is held that he is bound where the paper is relevant and that he will not be permitted to impeach it. There is some conflict of authority, however, on this point. Hurlbert v. Hammond, 41 Mich. 343; Austin v. Thompson, 45 N. H. 113; Anderson v. Root, 16 Miss. 362; Long v. Drew, 114 Mass. 77; 1 Whart. Ev. § 157. The prepon- derance of authority is that the party is not bound by the instrument and may impeach it. PRIMARY AND SECONDARY EVIDENCE, 223 Q. Suppose the party notified to produce a paper fails to produce it, and the other then introduces proof of its contents, may the party holding the instrument then introduce it to contradict ? A. He may not. Tyng v. Submarine Co., 1 Hun (N.Y.), 161; Jackson v. Allen, 3 Stark. 74; Doon v. Donaher, 113 Mass 151. It is also held that he cannot exhibit the paper to the adverse witness and cross-examine him on it. Q. Where a party has compelled the production of a paper, may he then introduce secondary evidence of its contents ? A. He may not. Q. Is it necessary to give notice to produce an instru- ment on which suit is brought, or where, from the very nature of the proceeding, one party may reasonably pre- sume that the other will have the paper in court ? A. Itis not. For example, where trover is brought to recover the instrument, the plaintiff need not give notice to produce it ; for he may fairly presume that the instru- ment will be produced. Or where suit is brought on a note or other instrument, notice need not be given to the defendant to produce. Dana v. Conant, 30 Vt. 246; Kel- lar v. Savage, 20 Me. 199. Nor is notice necessary where the other party is charged with fraudulently withholding the instrument or with having fraudulently obtained it. Mitchell v. Jacobs, 17 Ill. 236; Morgan v. Jones, 24 Ga. 155; McGinnis v. State, 24 Ind. 500; Forward v. Harris, 30 Barb. 338; Stabe v. Mayberry, 48 Me. 218. Nor is it necessary where the party admits the possession and the loss of the paper. Roberts v. Spencer, 123 Mass. 397. Q. May letters be shown to have been sent without notice to produce ? A. They may. Q. May the mere existence and execution of a paper be shown without producing it? Q. It may be shown that the paper was in existence, 224 Law AND PRINCIPLES OF EVIDENCE, and its execution may be shown, but the party cannot. prove its contents. As to the degree of search necessary to be made, before secondary evidence is admitted, see Rogers v. Durant, 106 U. 8. 644; Barthell vo. Wilbur, 53: Md. 485; Krise v. Neason, 66 Penn. St. 253; Large v. Van Doren, 14 N. J. Eq. 208; State v. Hopkins, 56 Vt. 260; Bartlett v. Sawyer, 46 Me. 317; Vandergriff v. Percy, 59 Tex. 371. And generally as to diligence in pro- curing lost paper, see Huff v. Hall, 56 Mich. 456; Christy v. Kavanagh, 45 Mo. 375; Haines v. Brownlee, 71 Ala. 132; McGuire v. Bank, 42 id. 589; Davenport v. Harris, 27 Ga. 68; Adams v. Fitzgerald, 14 id. 36. Q. Where records have been lost, and the fact of loss or destruction is clearly shown, or it is shown that it is impossible to produce the same, may secondary evidence of the records be given, and can sworn copies be used in evidence ? A. Copies may be used or it may be shown by any wit- ness who will swear to the contents. Mandeville v. Reynolds, 68 N. Y. 528; Clark v. Trindle, 52 Penn. St. 492; Gage v. Schroder, 73 Ill. 44; Allen v. State, 21 Ga. 217; Bridges v. Thomas, 50 id. 378; Headman v. Rose, 63 id. 458; Derrett v. Alexander, 25 Ala. 265; Wood v.. Matthews, 73 Mo. 477; Brewster v. Davis, 56 Tex. 478. Q. If there be acopy of a lost record duly certified,. will the evidence of a witness be received to show the contents of the lost record, or will a sworn copy be received ? A. Neither will be received. The certified copy is. higher evidence than the memory of the witness or than the sworn copy. The same rule applies to grants and charters. Q. Will it be sufficient to produce parts of a record ? A. The whole record must be produced, and not ‘detached portions. Such parts as will meet the require- ments of a notice only need be produced. Q. Where a will is lost, may a copy of the will be established by parol and admitted to probate ? PRIMARY AND SECONDARY EVIDENCE. 225 A. It may. It must be clearly established by the wit- nesses that the will was formally executed according to the forms prescribed by the statutes; that the paper offered is a substantial copy, and that the original has been lost. If the attesting witnesses are living they must be called. Jarman on Wills, 220; Kitchens v. Kitchens, 39 Ga. 168; McKee ». White, 50 Penn. St. 354. Q. Suppose only a part of the will can be produced ? A. It has been held that such parts may be set up. It should not be set up, however, where the testamentary scheme cannot be gathered from the parts produced. Q. What is the rule as to the character and degree of evidence necessary to establish the copy of a lost will ? A. The evidence should be clear, positive and unmis- takable that the will existed; that it has been lost; that the search has been made to find, and that the copy offered is substantially a reproduction of the lost will. Everitt v. Everitt, 41 Barb. 385; Foster’s Appeal, 87 Penn. St. 67; Johnson’s Will, 40 Conn. 387; Pickens »v. Davis, 134 Mass. 252. Q. Is it necessary that there should be a coinplete restoration of the entire will ? A. It is not, but there should be a substantial restora- tion. If enough can be shown to establish to a moral and reasonable certainty that the copy contains the main provisions of the lost will, it should not be overthrown because minor and less important provisions cannot be reproduced. Johnson’s Will, 40 Conn. 387; Jackson v. Jackson, 4 Mo. 210. Q. May the draft of a will be admitted to probate on parol proof that it is a substantial copy of the lost will ? A. When clearly proven to be a correct draft of the will executed and lost, it may be. Q. By whom is the sufficiency of the preliminary proof of the loss of a paper determined ? A. The court. 29 226 LAW AND PRINCIPLES OF EVIDENCE. Q. Where there were attesting witnesses to the lost paper, must they be brought into court to prove the exe- cution ?. A. Where the law required attesting witnesses they should be introduced to show that the paper was exe- cuted before secondary evidence of the contents will be received. Q. Where the attesting witnesses are dead or beyond the jurisdiction of the court, and cannot be called, what is the rule ? A. Then their handwriting may be shown. Q. Of whom should inquiry be made when the lost paper is shown to have been in the possession of a party now deceased ? A. Of his administrator and of his family. See Taylor Ev. § 404. Whoever is the custodian of the paper, under the law. should be inquired of. Howe Machine Co. 2. Stiles, 53 Iowa, 421; Taylor Ev. § 405-6. Q. Where the evidence of a witness on a former trial, and since deceased, or who is beyond the jurisdiction, has been preserved in a Dill of exceptions or in the report of a stenographer, may resort be had to such writings in a subsequent trial between the same parties ? A. It may. In such cases, however, it must appear that the bill of exceptions, stenographer’s report or other writing, contains a full and complete report of all the testimony delivered on the former trial, or they will not be received. Q. Will parol evidence be received to show that the conveyance of land by an ancestor for an expressed con- sideration to the child, was really an advancement and not a sale? A. It will. Q. Asa general rule, is it error to admit evidence of what was meant by a written contract ? A. Itig. The best evidence of what was meant is the ‘written instrument. PRIMARY AND SECONDARY EVIDENCE. 227 Q. Is parol evidence admissible as to the sayings of a testator that he did not intend to give anything to a de- visee under a will ? A. It is not. Q. Where a written contract is executed and delivered, is parol evidence admissible to show that it was not to be operative ? A. It isnot. Westman v. Krumweide, 30 Minn. 313; 15 N. W. Rep. 255; Skaaraas v. Finnegan, 31 Minn. 48; 16 N. W. Rep. 456. Q. May an auctioneer’s memorandum of a sale of land, where the same is incomplete, be explained by parol evi- dence and the boundaries of the tract be shown ? A. It may. Mohr v. Dillon, 5S. E. Rep. (Ga.) 770. Q. Is not parol evidence admissible in some of the states to explain both latent and patent ambiguities ? A. Itis. Q. Where a settlement is made between a debtor and a creditor and closed by giving notes and a mortgage to secure the notes, will parol evidence of the debtor be re- ceived that the settlement was to be reviewed and the notes reduced, if found to be for too much ? A. It is held that parol evidence is not admissible for this purpose. Dyar v. Walton, 7 8. E. Rep. (Ga.) 220. It would seem, however, that if the debtor were induced to sign by such a promise on the part of the creditor, parol evidence ought to be received, and the soundness of the Georgia decision is doubted. Q. Will parol evidence be received to vary the effect of a blank indorsement of a note ? A, It will not. Q. Where a sale of goods has been made and the con. tract of sale is in writing but fails to specify the time for delivery, will parol evidence be received to show that the parties subsequently agreed on a time for delivery ? A. It will. 228 Law AND PRINCIPLES oF EVIDENCE. Q. Is parol evidence admissible to show who paid the purchase money for land, or whose money was used in paying for it? A. Itis. Q. Is the copy of a copy of an instrument admissible in evidence ? A. It is not, unless there is proof that the original is lost. Q. Is parol evidence admissible to show the cause of action in a foreign judgment ? A. Itisnot. The certified record is the best evidence. Q. Is parol evidence admissible to show that the pro- visions of a contract are to cease on the happening of certain contingencies ? A. It is not. Q. Is parol evidence admissible to show on what. grounds a judgment was rendered ? A. It is not. Q. In cases against railroad companies, is parol evi- dence of the printed rules of the company governing the conduct of the employees admissible, without account- ing for the original rules ¢ A. It is not. The printed rules furnish the best evi- dence of the fact, and parol evidence of the contents will not be received. Q. What is the rule as to the admissibility in evidence of the certificates of commercial notaries ? A. Where a commercial notary certifies under his hand and seal of office that a bill of exchange was duly pre- sented to the drawer for payment and payment refused, and protests the same for non-payment, his certificate is admissible in evidence, and is pruma facte proof of de- mand and notice. 2 Dan. Neg. Inst. § 959; Starr 2. Sanford, 45 Penn. St. 193: Rives v. Parmley, 18 Ala. 256; McAndrew v. Radway, 34 N. Y. 511; Rushworth v. Moore, 36 N. H. 188; Pattee v. McCrillis, 53 Me. 410. The facts certified to must appear to be within the scope PRIMARY AND SECONDARY EVIDENCE. 229 and duty of the notary in order to prove by certificate. Boggs v. Bank, 10 Ala. 970. The protest must be under seal. Q. Is the certificate conclusive proof of the facts re- cited by it 2 A. Itis not. It only amounts to prima facie proof. The facts may be shown by other evidence, and may be rebutted. The notary’s certificate is prima facie proof of all the facts it recites. McFarland v. Pico, 8 Cal. 626 ; Southern Bank v. Mech. Bank, 27 Ga. 252; O’Neil v. Dickson, 11 Ind. 253; Starr v. Sanford, 45 Penn. St. 193; Union Bank v. Middlebrook, 33 Conn. 95. Q. Is it evidence of notice to the indorsers ? A. Itis; but if the certificate shows that notice was sent to the indorsers at a particular place, there must be additional proof that the indorsers resided at the place. Turner v. Rogers, 8 Ind. 139; Bradshaw v. Hedge, 10 Iowa, 402. Q. Is the recital in the notary’s certificate that the drawee has no funds, proof of the fact ? A. It is not. Q. What is the presumption as to the regularity of a notary’s proceedings ? A. The presumption is that his proceedings were regu- lar, and in accordance with the law of the place where protest is made, and with commercial usages. 2 Dan. Neg. Inst. 963, et seg. ; Byles Bills, 254; Magoun v. Walker, 48 Me. 420; Bank of Commerce v. Mudgett, 44.N. Y. 514; Pattee v. McCrillis, 53 Me. 410. Q. Is a diploma from a medical collegein another state admissible without proof thereof, and the charter of the college ? A. Itis not Parkerson v. Burke, 59 Ga. 100. Q. How must a deed recorded in another state be exem- plified in order to be admitted in evidence ? A. It must be exemplified according to the act of con- gress. In order to the admission of the exemplified copy 230 Law AND PRINCIPLES OF EVIDENCE. in evidence it should appear that the deed was registered according to the laws of the state from which it is re- ceived. Garrigues v. Harris, 17 Penn. St. 344; Key v. Vaughn, 15 Ala. 497; Watrous v. McGrew, 16 Tex. 506; McCormick v. Evans, 33 Ill. 327; Kidd v. Manley, 28 Miss. 156. Q. Where a deed is attacked for fraud, may not cred- itors show any secret parol trust or any other facts establishing fraud ? A. They may. Q. Will parties or privies be permitted to set up their own fraud to invalidate a deed or any executed contract ? A. They will not. The courts, as a general rule, will leave the parties where it finds them. Parol evidence will be received to show that false and fraudulent rep- resentations were made by the vendor to induce the grantee to purchase. But where the vendor and vendee enter into a fraudulent combination to defraud the creditors of the vendor, the deed will not be set aside at the suit of the vendor, nor will the vendor be heard to allege his own fraud. As a general rule fraud may be set up in a court of law as well as equity. Fraud in the execution of an instrument may always be shown by parol evidence. It may be shown, for example, that the paper was misread, or that parts of it were fraudulently inserted, or that changes were fraudulently made after it was read and before it was signed, or that the instru- ment offered was fraudulently substituted for the one which was read. The party’s incapacity to execute may also he shown, or that he was intoxicated to such a de- gree as to render him incapable of contracting ; or that the deed or other instrument was extorted by duress. 2 Kent’s Com. 450, et seg.; 1 Stark. Ev. 285; 2 id. 974. Want of delivery may also be shown or that it was delivered as an escrow. Q. May it be shown that a note was delivered to the payee on the performance of certain conditions not ex- pressed in the note ? PRIMARY AND SECONDARY EVIDENCE. 231 A. It may. Such evidence does not vary or contradict the note. It only shows the exact terms of the contract. If, however, the note is executed and delivered, the rule generally recognized is, that parol evidence will not be received to annex conditions not expressed in the note. The note so executed and delivered must speak for itself. The main question to be considered is, whether the in- strument was delivered as such. There is great conflict of authority as to what conditions may be proven, and no rule can be laid down to govern all cases. Q. May the legal effect of one writing be varied by another contemporaneous writing, which refers to it ? A. It may. Q. Where there is a written warranty of the quality of an article, may a verbal warranty be shown ? A. It is held that all verbal warranties are merged in the written warranty. But where there is a verbal war- ranty of anarticle, and a note given atthe same time, the verbal warranty is not merged in the note, and it may be shown by parol evidence. Q. May a mere mistake of law be set up, and a contract reformed # A. The general and well-established principle is, that if a mistake is as to the form of an instrument, and it does not carry out the intentions of the parties, the instrument may be reformed, so as to declare the real intention, but there is a wide distinction between this and a mistake of law. Q. May extrinsic evidence be introduced to show that a deed which is absolute on its face was intended as a mortgage ? A. It may, where it does not affect the rights of bona fide purchasers without notice. Where the rights of creditors or bona fide purchasers intervene, such evidence will not be received, or if received will not be available. To reform a deed, however, or to allow it to be shown to be a mortgage, the evidence must be clear, strong and positive. 232 Law AND PRINCIPLES OF EVIDENCE. Q. May a resulting trust always be shown by parol evidence ? A. It may. For example, where one buys land with the money of another and takes title in his own name, parol evidence will be received to establish the resulting trust; or where a guardian, trustee or other fiduciary agent uses a trust fund or any part of it to buy land or other property, and takes title in his own name, he will be declared to be a trustee as to that property, for the benefit of the ward, or his principal. Parol evidence will be received in order to trace the fund to the specific prop- erty, so that the trust may attach. Q. Where the parol evidence sought to be introduced is entirely consistent with the deed or other instrument of writing and does not, in effect, vary its terms, but simply shows the circumstances under which it was ex- ecuted, will it be received ? A. It will. Q. Where one claims under an instrument, will he be heard to dispute the consideration ? A. He will not. Q. What force and effect has the certificate of a justice of the peace that a deed was duly acknowledged before him ? A. Itis held to be a judicial act and is said to be conclu- sive unless the deed is attacked for fraud or duress. Parol evidence will be received to show all the circumstances and the certificate may be overthrown by it This is particularly the case where fraud is alleged. Q. Is parol evidence always admissible to show fraud in a deed and as between the parties to vary itsterms ? A. It is. Q. In the case of negotiable instruments where one takes them with notice of any defects or infirmities, does he not take them subject to such defects ? A. He does; and where there is anything on the face of a paper itself, of which an ordinarily prudent man PRIMARY AND SECONDARY EVIDENCE. 233 would take notice, the party takes the paper with its in- firmities. Q. May it be shown that prior to the indorsement of a note, a verbal agreement was made that demand and notice were dispensed with ? A. There is a conflict in the authorities, but the weight of authority is in the negative. Ina note to Whart. on Ev. § 1059, it is said: ‘‘If, by a previous or contempo- raneous verbal agreement an important condition of a written contract is waived, is not the written contract varied by the verbal agreement? And is not the rule violated which. holds that all previous and contempor- aneous negotiations and discussions on the subject are merged or extinguished by the writing, and cannot be shown to vary it? If not, then one condition after another might in this way be waived until nothing would be left of the written contract, and yet the rule referred to would not be violated. Conditions in written contracts may unquestionably be waived by subsequent verbal agreements without violating any rule of law — but not by previous or contemporaneous ones.” By the same authority it is held that a blank indorsement is not a contract in writing, and that the law simply implies a contract because the parties have failed to make an ex- press one, and parol evidence is admissible to show what the contract actually made was. The authorities differ on this question, however, and the rule is still unsettled. Q. Where there is an agreement between an indorser and his indorsee that the latter will not sue the former, but will look solely to the acceptor, may this be shown by parol ? A. It may. . Q. As a general rule, may the contract between the in- dorsers and indorsees be shown by parol? A. It may. ‘‘The law is well settled that the un- dertaking evidenced by indorsement, as between the parties to it, is susceptible of being controlled by oral evidence of the real obligations intended to be assumed 30 234 Law AND PRINCIPLES OF HVIDENCE. at the time of signing. Against a first indorsee, the payee, who was indorsee in blank, may show by parol that the object of the indorsement was to pass the title only.” Q. At common, law was a chose in action assignable, so as to pass the legal title to the assignee and enable him to sue on it ¢ A. It was not. Q. Are not negotiable promissory notes and bills of exchange assignable so as to pass the legal title ? A. They are. The title passes by delivery. In order to be negotiable it must be payable to bearer or to the payee or his order. It must be of a character that legal title will pass by delivery or be made so by an indorse- ment in blank. Q. What is the test of the negotiability of paper ? A. The test is whether title passes by delivery. Does the assignee take it freed from the equities between the original parties, or does a bona fide holder, without notice, take it, freed from such equities by delivery or indorsement in blank? In such case, the assignee, transferree or holder does not take the title of the assignor, although he derives his title from him, but takes it independent of him. He does not stand in his shoes, but takes it as he does a bank note. He does not sue in the name of the assignor, but in his own name. He takes the paper freed from all the equities which the maker might have set up against his assignor. It is also a rule as to negotiable paper that whoever takes it in good faith takes a good title, although his assignor had no title and may have stolen it. Such paper stands on the same footing with current bank notes, title to which passes, even from the hands of a thief. Q. Are there not many writings which furnish no better or higher evidence of a fact than parol evidence? A. There are; and in such cases parol evidence is equally admissible with the writing. PRIMARY AND SECONDARY EVIDENCE. 28d Q. Where there is a written contract to doa certain thing at acertain price, may it be shown by parol that, by a subsequent agreement, a higher price was to be paid ? A. Where an additional consideration is shown, such proof would be admissible. Q. May it be shown by parol that, notwithstanding the fact that there was a sale of personal property with- out warranty of quality, there was a subsequent verbal warranty ? A. It may. Written contracts may be changed, mod- ified or rescinded by subsequent parol agreements. Even specialties may be shown to have been discharged by subsequent parol agreements, fully executed. One, for example, undertakes by a writing under seal to build a house and furnish all the material fora certain sum. He may show that, by a subsequent agreement, he was released from the obligation and built the house under a new contract. Q. What are some of the requisites of negotiable paper ? A. First, there must be words of negotiability. It must be payable to the holder or bearer, or payable to the order of the payee. Second, it must be for the pay- ment of a sum of money unconditionally. Where the note is payable to the payee only, it is not a negotiable note. ‘‘A negotiable bill or note is a courier without luggage. It is a requisite that it be framed in the fewest words possible and these importing the most cer- tain and precise contract. A paper containing unusual stipulations would be apt to startle commercial men as to their effect on the contract of indorsement and make them reluctant to touch it.” Overton v. Tyler, 3 Penn. St. 346. If there are conditions in the paper, it is not a promissory note. A promise to pay ‘‘ when able” or “if I succeed in making collections,’’ is not a promissory note. Nor is a promise to pay out of a certain fund a promissory note. because it is not payable at all events. It is also generally held that the promise must be to pay 236 Law AND PRINCIPLES OF EVIDENCE. money, or legal tender. It would seem, however, that a promise to pay so much cotton to be worth so much money would be a good promissory note. Q. Where there is a contract in writing to pay money, which is not a promissory note, what is it @ A. It is said to be an acknowledgment. ‘‘ The better opinion, no doubt, is that as a mere acknowledgment of a present debt, which neither contains words of negotia- bility nor postpones payment to a future day, it will receive full effect if construed as an admission, and it should not be carried further and enforced as a prom- issory note; but the case is obviously different when the instrument contains the words, ‘order or bearer,’ or where, in any way, it shows an intention to create a new, not merely to admit an antecedent obligation.” ‘* A mere acknowledgment of a debt is not a promise to pay, and does not amount to a promissory note.” Q. Is a due bill containing no negotiable words nego- tiable ? A. It is not. They are held to be promissory notes, however. Q. Where the words ‘‘ or bearer ” are omitted in an in- dorsement, may the indorsee still negotiate the paper ? A. He may. If the indorser wishes to restrict the negotiability he should use restrictive words, as pay to indorsee only. ‘‘The restricted indorsee cannot indorse, so that his indorsee can sue, for the indorsement is notice to all parties that the restricted indorsee holds un- der a trust which would be violated by the last indorsee’s suit.” Q. How is a negotiable note transferred ? A. By mere delivery. Q. Where one signs his name on the back of a negoti- able instrument, does this authorize the holder to write negotiable words above it ? A. It does. Q. What is a blank indorsement ? PRIMARY AND SECONDARY EVIDENCE. 237 A. It is where the indorsee simply writes his name without more. Q. When is it a special indorsement ? A. It is when the indorser writes his name and the in- dorsee’s. In order to complete the indorsement there should be a delivery. Q. What is the contract of an indorser ? A. It isto pay the amount mentioned in the bill to the holder, provided he demands payment of the maker or acceptor and gives legal notice of his failure to pay. The contract of an indorser of a bill and that of the drawer is the same. Q. Where negotiable paper is transferred by indorse- ment, what is the rule as to his warranty ? A. He warrants that the note is genuine and that the maker is solvent When he transfers by delivery only, he simply warrants that the paper is genuine. In the latter case the transferrer is not affected by the maker’s failure to pay. He simply transfers and warrants genu- ineness. Where the note is transferred for goods or money the rule holds good, but where it is transferred in payment of an antecedent debt, it is said that the trans- ferrer warrants not only genuineness, but solvency. So when it is transferred as collateral security. 1 Dan. Neg. Instr. § 740. It is also held that if the transferrer knows that the paper is worthless, he is liable on the ground of fraud. Q. Where the paper is indorsed sans recours, is the in- dorser liable ? A. He is not. Q. Willany agreement between an indorser and his in- dorsee affect a remote indorsee without notice ? A. It will not. Q. In what order are indorsers liable ? A. Indorsers are liable in the order of their names. Where one indorser is compelled to pay, he may recover from any one who precedes him. 238 Law AND PRINCIPLES OF EVIDENCE. Q. Where an indorsement is not filled, does it give authority to the indorsee to fill it ? A. It does. Q. On what conditions does one take negotiable paper as to his rights against prior parties ? A. ‘‘ Hither he himself must be a bona fide holder, and for value, or he must hold under an indorser who is a bona fide holder, and for value. He must take the bill in the ordinary course of business not overdue; or if it be a bill presented for acceptance before maturity he must take it without knowledge or refusal of acceptance.” Comrs. v. Bolles, 94 U. 8. 104; Cromwell v. County of Sac, 96 id. 51; Montclair v. Ramsdell, 107 id. 147. Q. What is meant by valuable consideration ? A. It is where there is any detriment to the plaintiff or benefit to the defendant. Q. Where one takes a bill or note before maturity and bona fide, without notice of any equities between the original parties, what is ‘the rule ? A. He takes it absolutely freed from such equities. Q. Where it is taken after maturity or in circumstan- ces which should put a prudent man on notice, what is the rule ? A. The holder takes it subject to all the equities be- tween the original parties. ‘‘ He takes it on the credit of the indorser and subject to all the equities with which it may be incumbered.” ‘‘ Payment before maturity will not affect a subsequent indorsee for value.’? Payment at maturity does not affect subsequent indorsee. Pay- ment after maturity to indorsee is good against indorsee thereafter. 2 Dan. Neg. Instr. § 1233. Q. What is it the duty of a person holding an unac- cepted bill to do? A. He should promptly present it for acceptance, and if acceptance is refused he should give notice to all ante- cedent parties. If the bill be accepted, it should be promptly presented for payment ; and if payment be re- PRIMARY AND SECONDARY EVIDENCE. 239 fused, notice of non-payment should be given. Where a bill is payable at a certain time after date, it need not be presented for acceptance, but simply for payment. Where the bill is payable at sight or at a certain time after sight, there should be presentment for acceptance. What is a reasonable time for presentment must depend on the facts of each particular case. Q. How is a bill accepted ? A. It must be done in writing and signed by the ac- ceptor. Where it is payable so many days after sight, the date of the acceptance should be stated. Q. Will a verbal promise to accept a bill not drawn be binding ? A. It is so held where the bill is taken on the faith of the verbal promise. Q. How are acceptances divided ? A. Into conditional, partial and unconditional. As where the payment is restricted as to time or place, it is said to be conditional, and where it varies from tenor of bill, it is conditional. So an acceptance to pay when goods consigned to the drawee are resold is conditional. Where the acceptance is to pay a part of the sum, it is said to be partial. Q. Where should a bill be presented ? A. At the place designated in the bill. But where a bill is made payable at a particular place, it is held that it is not indispensable to present it at that place to charge the maker or acceptor. If, by reason of the failure to present at such place, the parties sustain damage, it may be set off. Where there is a qualified acceptance, the holder of a bill may refuse such acceptance and pro- test the bill. Q. By whom must a bill be accepted ? A. By the drawee, unless some one accepts it for honor. Q. What is an acceptance supra protest ? A. It is where the holder of a bill has it protested for non-acceptance, but afterwards takes an acceptance for 240 Law AND PRINCIPLES OF EVIDENCE. honor. When the bill matures he should present it for the second time to the drawee, and if payment is refused he should protest for non-payment and present it to the acceptor for honor. The acceptor for honor takes the place of the person for whose honor he accepts as to all rights and liabilities to the holder and prior and subse- quent indorsees. Q. Who is primarily liable on a bill ? A. Theacceptor. The other parties are regarded merely as sureties. Q. Where one accepts a bill, does he admit the signa- ture and authority of the drawer ? A. He does, and will not be heard to say that the sig- nature is a forgery. Q. What is meant by days of grace ? A. ‘Days of grace are allowed on bills or notes in all cases, when payable on a day certain or on an event cer- tain, or at a certain time after date or sight, and except when payable on demand.” Oridge v. Sherborne, 11 M. & W. 374. When days of grace are allowed, the bill should be presented on the last day of grace, and if the last day of grace be Sunday or a legal holiday, the bill should be presented on the day preceding. Q. At what hour in the day should the bill be pre- sented ? A. During the usual hours of business. The bill should be presented to the drawee, and where it has been ac- cepted, to the acceptor. Q. Where there are joint and several acceptors or mak- ers, to whom may presentment be made ? A. It may be made to either and it will be sufficient. Q. If the makers or acceptors be joint, to whom should presentment be made ? A. It should be made to both. If either refuses, it should be protested. Q. Where should demand be made ? PRIMARY AND SECONDAKY EVIDENCE. 241 A. At the place of business of the maker or acceptor, and it has been held that it cannot be made through the mail. It may be made on the authorized agent of the maker and acceptor, and it may be made by the holder or his agent. Q. When should notice of dishonor be given ? A. Generally on the same day or following day; but where the parties reside at a different place, notice should be given by post on the succeeding day. The rule is that each party has a day to give notice, and should send it on the day after he receives notice. The holder may him- self give notice to all preceding parties, or he may havea notary to do it. Q. How should notice be given ? A. It may be given orally or in writing. Where the parties live in the same town, the notice should be oral, and where the holder and indorser reside in different towns, notice should be by post. Q. What is the evidence of demand, presentment and dishonor ? A. The protest. Inland bills and promissory notes need not be protested. Q. Where the drawer of a bill has no funds in bank, is he entitled to notice ? A. Heis not. Q. Does the rule that parol evidence will not be received to vary a writing, apply to any person except parties and privies? A. It does not Strangers are not bound or concluded by the terms of a written instrument, however solemnly executed, and unless such writings are records or public documents, strangers are in no way bound. It is held that a party who executed the instrument may show mis- take, where the contention is with a stranger. Q. Where a contract is partly printed and partly writ- ten, which should have the more weight, the written or the printed ? 81 K 242 Law AND PRINCIPLES OF HVIDENCE. A. Itisarule that what is written is generally prepared with more deliberation than that which is printed, and where there is a conflict between the written and the printed, the written should have the more weight. Q. May it be shown by parol that a document was exe- cuted on certain conditions which have not been per- formed ? A. It may, or it may be shown that the written con- tract has been succeeded by a subsequent parol contract, or that new conditions have been added to the old ones, or that the time for the performance of the contract has been, for a consideration, postponed. Q. Where there are errors in the dates of judicial rec- ords, may parol evidence be introduced to show the fact ? A. It may. The date on which a judgment purports to have been rendered, or decree taken, may thus be shown to be erroneous. Q. May not parol evidence be introduced to prove facts outside the written instrument, where such facts are not inconsistent with the instrument and do not contradict, add to, subtract from, or vary the terms of the instru- ment ? A. It may. All the circumstances surrounding or lead- ing up to the execution of the instrument may be shown. So, all facts incident to the execution, and forming part of the transaction to which it relates, may be shown by parol evidence. Q. Is a copy of a written instrument receivable in evi- dence 2 A. The original is the primary evidence, and copies will not be received except on proof of the loss of the origi- nal, or where, for any reason, the primary is not attain- able. Robinson v. Bealle, 20 Ga. 275; Cloud v. Hartridge, 28 id. 272; Bird v. Bird, 40 Me. 392; Putnam v. Goodall, 31 N. H. 419. Q: Where the oral evidence itself is primary, or as PRIMARY AND SECONDARY EVIDENCE. 243 primary as the written, will it be excluded because the written is not produced ? A. It will not. Suppose, for example, the question to be, whether a road is public or private. The evidence of a person familiar with the road, and when and how it was laid off, and how it has been worked, whether as a public or private road, will be received, although there may be written evidence of the character of the road. So, the date of one’s birth, marriage or death may be shown by parol, although these dates be recorded in family bibles. The state of the weather, whether warm or cold, wet or dry, may be shown by parol, although the weather bureau has a record of the same; so one may testify as to the payment of taxes or of rent; the posses- sion of land, the receipt of money, the payment of a note may all be shown without producing the receipts or the note or other written evidence. So, what was done ata ~ meeting of the stockholders of a railroad or other corpora- tion; what was said and done at public meetings of citi- zens; the resolutions offered and adopted by a school board — all these may be shown by parol, for the oral evidence of what occurred is as primary as the written. But where we pass to documents of a dispositive character, or to the acts and proceedings of bodies legally appointed and ex- ercising under the law, a part of sovereignty, or where the law requires the documents or proceedings to be in writing, here parol evidence will not be received, for the very fact that the law has appointed the writing as the evidence of what was said or written, excludes parol evi- dence. Duffie v. Phillips, 31 Ala. 571; St. Louis R. Co. v. Kakins, 30 Iowa, 279; Prater v. Frazier, 11 Ark. 249; Lathrop v. Bramhall, 64 N. Y. 372; Thompson v. Mapp, 6 Ga. 260. Q. Where it becomes necessary to use public docu- ments in evidence, will certified transcripts be received ? A. The great inconvenience which would result to the public from allowing public documents to be taken from the place of deposit appointed by law and carried from 944 Law AND PRINCIPLES OF EVIDENCE. court to court to be used as evidence, renders it necessary that transcripts, properly certified by the keeper of the records, should be accepted as primary evidence. Q. When the books of a private corporation are to be used in evidence and are of such a character that they cannot be removed without great inconvenience and detriment, what is the rule ? A. In most of the states provision is made for taking sworn abstracts of such books, or of such parts as are material and relevant. Provision is generally made for giving notice to the opposite party, so that an opportu- nity may be given to inspect the books and thus prevent fraud or imposition. See Meyer v. Sefton, 2 Stark. 276; Henderson v. Hackney, 16 Ga. 521; Steph. Ev. 70. Q. Where it becomes necessary to prove inscriptions on monuments or mural inscriptions, or the mottoes on flags or other writing of the like, which cannot be pro- duced in court, will parol evidence be received to prove them ? A. It will, 1 Whart. Ev. § 82; Com. v. Pope, 103 Mass. 440; State v Credle, 91 N. C. 640. Q. Where the terms of a written instrument are plain and unambiguous, and the conditions are plainly ex- pressed in the writing itself, will parol evidence be re- ceived to change them ? A. All contemporaneous and prior conditions and agreements are presumed to be merged in the written contract, and unless fraud is set up, parol evidence will not be received to change them. Q Where a contract is partly written and partly oral, will parol evidence as to what was the oral part of the contract be received. A. It will. Q. May it be shown by parol that there was no deliv- ery, or that a deed was delivered as an escrow? A. It may. PRIMARY AND SECONDARY EVIDENCE. 245 Q. What is the rule as to the admissibility of parol evidence to show mistake in the instrument ? A. Parol evidence is admissible where the mistake is mutual, and where the mistake of one party is induced by the fraud of the other. Q. Where the terms of a contract are ambiguous, is parol evidence of the intention of the parties admissible ? A. It is. In such case, all the prior and contempo- raneous circumstances may be fully gone into so as to show the exact situation of the parties and thus illus- trate the intention. When the description of property in a deed or other instrument is doubtful, parol evidence will be received to clear up the doubt. Q. Where one’s name appears as principal on a note, is parol evidence admissible to show that, as between the makers, one was only surety ? ~ A. It is. Q. Where a record itself is ambiguous, and the terms employed are of doubtful signification, will parol evi- dence be received to show the true meaning and to explain the record ? A. Where the record speaks for itself and is perfectly intelligible, parol evidence will not be received, but where it is unintelligible, it will be. Q. How is marriage proven ? A. Marriage may be proven by parol. The parties to the contract may be introduced or it may be shown by persons who were present at the celebration of the nup- tials. Q. Is a marriage valid in one state generally held to be valid in another ? A. Itis. In some of the states marriage is held not to be valid unless solemnized according to the law of the state, although the parties cohabit together. Q. Where the parties go together and treat each other as husband and wife and so hold themselves out, will 246 Law AND PRINCIPLES OF EVIDENCE. any civil effects result, although there was no actual cere- mony of marriage ? A. In most of the states such conduct will create the relation of husband and wife, and the marriage will be held valid. ‘‘ The legislature has full power to prescribe reasonable regulations relating to marriage, and a provis- ion prescribing penalties against those who solemnize or contract marriage contrary to statutory command is within legislative authority.” Q. Does the mere fact of long continued cohabitation raise a presumption of marriage ? A. It does. Marriage may be established by reputation where there is cohabitation. It is held, however, that where the cohabitation is illicit, the presumption of mar- riage does not arise, and that the marriage must be shown by stricter proof than mere cohabitation. Q. In criminal cases, for example, where the party is charged with bigamy, is not stronger proof required ? A. In such cases the first or previous marriage relation is undissolved. See 1 Whart. Ev. § 85. Q. What is the strength of the presumption of mar- riage, from cohabitation, as compared with other pre- sumptions? A. It is stronger. It was ruled by Lord Chancellor Cairns “‘that the presumption of marriage is much stronger than the presumption in regard to other facts. Hence, when a matrimonial ceremony took place in Scotland, the parties being ignorant of any impediment, and afterwards removed, and when believing themselves to be married validly, they lived together continuously for years as husband and wife, and were regarded as such by all who knew them, the marriage is held to have been established by the force of habit and repute, with- out any proof of mutual consent, by verbal declaration. The inference to be drawn was inference that the matri- monial consent was interchanged as soon as the parties were enabled by the removal of the impediment, to enter into the contract. The burden of rebutting a marriage PRIMARY AND SECONDARY EVIDENCE. 247 by habit and repute, it was said, is thrown on those who deny it.” Q. May marriage be proven by the admissions of the parties ? A. It may, where there is corroborating proof that the parties cohabited together. Q. What is always the presumption as to legitimacy ? A. Children born during wedlock or within the usual period of gestation thereafter are presumed to be the lawful offspring of the parents. Q. Where one recognizes a woman as his wife and necessaries are furnished on the strength of the relation, is he not estopped from denying the relation in a suit to recover for necessaries ? A. He is. Q. How otherwise may marriage be proven ? A. It may be shown by the records of marriages or by entries in family bibles or other entries made in family records. Q. What is the presumption in our courts, where it is shown that the marriage was celebrated in a foreign country ? A. The presumption is that the common law is of force touching the subject of marriages, and that it was cele- brated according to the lex loci contractus. Arnold v. State, 53 Ga. 594; Brown v. State, 52 Ala. 338; Squire v. State, 40 Ind. 459; Redgrave v. Redgrave, 38 Md. 93; Com. v. Holt, 121 Mass. 61. As to proof of marriage by parol, see Dickerson v. Brown, 49 Miss. 357; Parker v. State, 77 Ala. 47; Murphy v. Georgia, 50 Ga. 150; Tetter v. Tetter, 101 Ind. 129; Land Co. v. Bonner, 75 Ill. 315; Vincent’s Appeal, 10 P. F. Smith, 228. Q. Where the marriage of persons of the foreign coun- try would not be allowed by the lex fori, and would vio- late the local law as being obnoxious to sound public policy, as the marriage of a white person and a negro, will such marriage be recognized ? A. It will not. 248 Law AND PRINCIPLES OF EVIDENCE. Q. What is the general rule on the subject of the va- lidity of marriages ? A. ‘‘ Marriage is a civil contract jure gentium, to the validity of which the consent of the parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de presenti, though it is not consummated by cohabitation, or if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary.” 2 Greenl. Ev. §§ 460-462; Com. v. Stump, 53 Penn. St. 182. Q. Are there degrees in secondary evidence ? A. There are. If, for example, a deed be lost and a party has an exemplified copy, or any other record paper be lost and a certified copy is attainable, he will not be permitted to give secondary evidence of its contents. The parol evidence, as well as the certified copy, is sec- ondary, but the exemplified copy is higher evidence of the lost paper than parol evidence. If, therefore, an exemplified copy is attainable he will not be permitted to prove the contents by parol. 1 Stark. Ev. § 167; 1 Whart. Ev. § 90; Williams v. Waters, 36 Ga. 454; Evans v. Bol- ling, 8 Ala. 546; Land Co. v. Bonner, 75 Ill. 315; Good- rich v. Weston, 102 Mass. 362; Eslow v. Mitchell, 26 Mich. 500. Q. How are the records and judicial proceedings, office books, etc., of one state or territory of the United States used as evidence in the courts of any other state or territory ? A. The act of Congress, May 26, 1790, provides that the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States by the attestation of the clerk, together with the certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given them in every PRIMARY AND SECONDARY EVIDENCE. 249 court of the United States as they have by law or usage in the courts of the states from which the said records are or shall be taken. By act of March 27, 1804, this former act is extended to the public acts, records, office books, judicial proceedings of the courts, and officers of the respective territories of the United States and coun- tries subject to the jurisdiction of the United States. The exemplification of the records and judicial proceed- ings of federal courts are also held to be admissible. Q. Must the court be a court of record ? A. It must, and when the record is certified under a seal, this is evidence that it is a court of record. Q. By whom must the attestation be made ? A. It must be by the chief clerk, and an attestation by an assistant or deputy clerk will not do, and he must be the clerk of the court of record. Robinson v. Prescott, 4 N. H. 450; Belton v. Fisher, 44 Ill 32; Draggoo v. Gra- ham, 9 Ind. 212; Silver Lake Bank v. Harding, 5 Ohio, 545. When the judge is both judge and clerk, he may attest as clerk and certify as judge that the attestation is in due form. Cox v. Jones, 52 Ga. 438; Low v. Bur- rows, 12 Cal. 181. Q. Suppose the court has no seal ? A. Then either the judge or the clerk should certify to this fact. Cox v. Jones, 52 Ga. 438; Strode v. Churchill, 2 Litt. Ky.) 75. Q. Where a newspaper is sued for libelous publication, what is the best evidence of the publication ? A. The newspaper itself is considered the highest and best evidence of the publication. The original manu- script is secondary evidence. Any press copy from the same newspaper is admissible as primary evidence. Q. Are sworn copies of written instruments sometimes received in evidence ? A. They are. In such cases, however, the witness should swear that he compared the copy with the original and that it is identical. 32 250 Law AND PRINCIPLES OF EVIDENCE. Q. Where it becomes necessary to use the records in one county in evidence in another county, how can it be done 4 A. By obtaining from the clerk who keeps the records a complete transcript of the same, duly certified to be such under his hand and seal. It should be a complete transcript. 1 Greenl. Ev. $501. The certificate should show that it is a complete transcript. Q. If there be a seal, to what should it be attached ? A. The seal should always be attached to the record ? Q. By whom should the certificate be signed ? A. By the clerk or presiding judge. Van Storch v. Griffin, 71 Penn. St. 240; Settle v. Allison, 8 Ga. 201; Hudson v. Daily, 18 Ala. 722; Brown v. Johnson, 42 id. 208; Holly v. Flournoy, 54 id. 99; Norwood v. Cobb, 20 Tex. 588. Q. If signed by associate judge, will this be sufficient ? A. It will not. See above authorities. Q. Suppose the judge certifies that he is one of several judges, and that they all have equal authority, and may sign certificates ? A. This is held to be sufficient. Q. What must the certificate state ? A. It should state that the clerk is then the clerk of the court and that the attestation is indue form. Wilburn v. Hall, 16 Mo. 426; Hutchins v. Gerrish, 52 N. H. 208; Johnson v. Howe, 2 Stew. (Ala.) 27; Thompson v. Man- row, 1 Cal. 428; Grover v. Grover, 30 Mo. 400; White v. Strother, 11 Ala. 720. Q. What should the transcript of the record contain ? A It ought to contain all the proceedings. Mere ex- tracts, however well authenticated, will not do. It should appear by the certificate that the transcript is complete. Cowan & Hills notes to Phil. on Ev., opinion by Wash- ington, J., vol. 4, p. 1073. Q. If there be a seal, must it not be attached ? PRIMARY AND SECONDARY EVIDENCE. 251 A. This is indispensable, and the presumption is that there is a seal unless the certificate shows the contrary. Cowan & Hills notes to Phil. on Ev. 1131, vol. 4. Q. Must not the certificate be by the judge, before whom the proceedings took place? A. It must. Q. Suppose there is more than one judge, but one of them is the presiding magistrate or president of the court ? A. Then the certificates must be from him, and he must possess that character at the time he gives the cer- tificate. Q. Must not the judge certify that the certificate is in due form ? A. He must. These words in the certificate mean that the attestation is in the form adopted by positive law or practice for authenticating similar records in the state whence the record comes. Johnson v. Cunningham, 1 Ala. 249; 1 Phil. Ev. § 352. Q. May the courts of one state inquire into the juris- diction of the courts of another state when their pro- ceedings are offered in evidence ? A. They may, and may reject the exemplification and declare the proceeding or judgment coram non judice. Thomas v. Morrisett, 76 Ga. 396; Settle v. Alison, 8 id. 201; Buck v. Grimes, 62 id. 605; Causey v. Cooper, 41 id. 409; 1 Greenl. Ev. §§ 504-514, 540-546; Freeman on Judgments, 413; Phelps v. Tilton, 17 Ind. 423. Q. Suppose it becomes necessary to use as evidence in any American court, records and judicial proceedings of a foreign court, how may the evidence be produced ? A. Each state may control by legislation the manner in which foreign records shall be authenticated in order to be admitted in evidence in its courts. It is, therefore, a question for local statutory regulation. But as a rule the evidence will be received when the records and judicial proceedings of such foreign court are duly certi- 252 Law AND PRINCIPLES OF EVIDENCE. fied by the clerk of the court and the judge of the court, under the great seal of the state, showing the official character of the judge, and his authority to certify; or by a certificate of a secretary of foreign affairs, that the exemplification is complete, or by any expert who will swear to the genuineness of the seal, and the signature of the judge. Watson v. Walker, 23 N. H. 471; Stewart v. Swanzy, 23 Miss. 502; Pickard v. Bailey, 26 N. H. 152; 1 Whart. Ev. § 110. Q. In cases of libel where innuendoes are introduced to explain the meaning intended to have been conveyed by the person who used the language, is parol evidence ad- missible to show what was intended ? A. It is. Thus where no name is used in a libelous pub- lication, but innuendo is introduced to show to whom the language applies, parol evidence may be used to show it. Q. \What is the general rule as to the impeachment of records by parol evidence ? A. The general rule is that records cannot be so im- peached. Where fraud or want of jurisdiction is charged. judicial records are open to impeachment by parol evi- dence. It is also held that the journals of the senate and house of representatives cannot be impeached by parol evidence. It is a general rule that where, by law, a record is required to be kept, it imports verity, and this is particularly true of judicial records. As a matter of course, when the record itself is silent, or leaves any matter in doubt, parol evidence is admissible to explain it. For example, where there is doubt as to the date of a judgment or decree, parol evidence will be received to show the date ; or where the plea of res adjudicata is set up, and the pleadings do not distinctly show that the matter was passed on, parol evidence may be introduced to prove or disprove the fact, and it may always be re- sorted to, where the record is ambiguous. Wharton on his work on Evidence. section 988, says: ‘‘Of the ad- maissibility of parol proof to explain a record, the most familiar illustration is that which is supplied when the PRIMARY AND SECONDARY EVIDENCE. 253 identity or non-identity of one case with another is set up, in order to sustain or disprove a plea of former re- covery. It may happen that a judgment has been entered in a former suit, either civilor criminal, in which the record entries would fit the case on trial, but as to which if is alleged that parol evidence would show that the points really in issue are essentially different. Or it may be that the record of the former suit exhibits a case different from that on trial, while it is alleged that in point of fact, the former case and the present are sub- stantially the same. In either of these relations it is ad- missible to show by parol what was the cause of action in the former suit, so that its identity or non-identity with that on trial may be proved. The same rule ap- plies when the object is to prove that a former judgment was entered, not on the merits, but on technical grounds. Evidence is also admissible to show the distinctive issue on which a case is tried when the record is silent in this respect. Q. Is parol evidence admissible to show a mistake in drafting a will ? A. It is not; for if this were permitted, it would amount to substituting a will for that of testator. When there are ambiguities in the will, parol evidence will be received to show the intention of the testator ; and it is always admissible to show fraud or undue influence in procuring the execution of the will. It is held that the declarations of the testator going to show fraud or undue influence are not admissible. 2 Whart. Ev. § 1010, and authorities cited. They may be received to show the mental condition of the testator. Q. As to all prior conferences between the parties up to the execution of the contract, what is the rule ? A. It is the rule that all prior conferences and agree- ments are merged in the written instrument. Q. Will parol evidence be received to reform a con- tract ? A. It will. Where there is a mutual mistake, or where 254 Law AND PRINCIPLES OF EVIDENCE. there are other grounds on which a court of equity will reform the contract, parol evidence is admissible to show it. So where fraud is used by one party to induce the execution by the other, parol evidence is admissible to show it. Q. What is the general rule as to the admissibility of parol evidence ? A. Theruleis so well stated in a Pennsylvania case (Mar- tin v. Berens, 67 Penn. St. 462), that we venture to state it in full. ‘‘The principles which govern the admission of parol evidence affecting written instruments are well established. It may be received to explain and define the subject-matter of a written agreement (Gould v. Lee, 55 Penn. St. 99), to prove a consideration not men tioned in the deed, provided it be not inconsistent with- the consideration mentioned in it (Lewis v. Brewster, 57 Penn St. 410), to rebut a presumption or equity ; to alter the legal operation of an instrument where it con- tradicts nothing in the writing; to explain a latent am- biguity; to supply written deficiencies in an agreement; in cases of fraud, accident or mistake; but the evidence of fraud and mistake ought to be what occurred at the execution of the agreement, and should be clear, precise and indubitable.” Q. Where there is a concurrent mistake, will parol evidence be received to show it and to reform the in- strument ? A. It will. Q. Where the mistake of fact is confined to one party to a contract, is parol evidence admissible to show it ? A. It is not. But where there is mistake on one side and fraud on the other, parol evidence is admissible to show it. Q. Where the title to property, such as real estate, is only collaterally involved, may it be proven by parol ? A. It may. Pelzer Co. v. Sun Fire Office, 15 8. E. Rep. 562. PRIMARY AND SEcoNDARY EVIDENCE. 255 Q. Where the question of the existence of certain notes is collaterally involved, may their existence be shown without producing the notes ? A. It may. Q. Where an instrument, properly attested accord- ing to law, is lost, may its contents be shown with- out producing the subscribing witness and proving the execution ? A. They may not. Q. Where the party offering parol evidence is not a party to the written contract, does the rule apply that parol evidence may not be received to change the terms of written contracts ? A. It does not. Fonda v. Burton, 22 Atl. Rep. 594: Am. Dig. (1892), 1967, § 662. Q. May a party to a contract introduce parol evidence to explain it, where it is introduced in evidence against him by a stranger ? A. Hemay. Am. Dig. (1892), § 663; Fox ». McComb, 18 N. Y. Supp. 611. A third party may also show by parol that a contract which was in form a lease, was really a sale. Q. In an action on a note, may the sureties show by parol that the payee agreed to save them harmless and to make the money out of collateral, deposited by the principal ? A. They may not. Stewart v. Nat. Bank, 30 Pac. Rep. 303. The fact of the suretyship may be proven as to the other sureties, although it does not appear on the face of a note and as to the payee himself where he had notice. Q. Will parol evidence of what the parties understood by a contract be received ? A. It will not. Q. When are preliminary negotiations admissible in evidence ? 256 Law AND PRINCIPLES OF HVIDENCE. A. When there has been a subsequent modification of the contract in accordance with the preliminary negotia- tions or false representations made, inducing the con- tract. Taylor v. Davis, 52 N. W. Rep. 756. 4 Q. Where there are two persons holding mortgages against the same mortgagor, and the question is as to priority, will parol evidence be received that they had agreed among themselves, orally, that one should have priority over the other ? A. As this is a collateral question, it has often been held that parol evidence is admissible to establish such an agreement. Q. Where the writing shows an absolute sale of goods, will parol evidence be received to show that the sale was on commission ? A. It will not. Q. Where a written agreement is absolute on its face, what is the rule as to engrafting conditions by parol? A. Parol evidence is not generally receivable for such purpose. Q. Is parol evidence admissible to identify the subject- matter of a contract ? A. It is. Q. Where the descriptive terms of a mortgage are gen- eral, is parol evidence admissible to show what property was actually embraced in the mortgage ? A. It is. Q. May the actual consideration for a deed be shown by parol ? A. As between grantor and grantee and all other per- sons taking with notice, it may. It is held that it may be shown that part of the consideration for the deed was, that intoxicating liquors should not be sold on the land, although there is nothing in the deed to that effect. Q. Is the testimony of a deceased witness admissible in evidence ? PRIMARY AND SECONDARY EVIDENCE. 257 A. ‘A synopsis of the evidence of a deceased witness, agreed on by both parties,” is admissible. Wherever the reproducing witness will swear that what he states is substantially what the deceased witness swore, and it is substantially between the same parties, it will be re- ceived, Q. In our own courts, as a rule, where the statute re- quires a document to be recorded, and it is sought to in- troduce the-record as proof, what must be shown ? A. It must be shown that the original is lost, before the record will be received. Peck v. Clark, 18 Tex. 239; Halsey v. Blood, 29 Penn. St. 319. Q. Suppose the document was improperly admitted to probate because not properly attested ? A. Then the record does not prove the execution of the instrument. Q. What steps should be taken to get the contents in evidence ? A. The execution of the document should be proven by the witnesses and then its loss. The contents may then be shown or it may be proved that the deed of record is a copy. 33 CHAPTER VI. JUDICIAL NOTICE. Q. Are there not some facts of which the courts will not require proof, and of which the courts will take judi- cial notice ? A. There are. Matters of general public notoriety and which are so well known as to constitute a part of the natural, religious or political history of a country, require no other proof than that which is furnished by the senses. Important historical events; the overthrow of one form of government and the establishment of another; the leading events in church history and remarkable natural phenomena, need not be proven like other facts. The dates of the battles of Waterloo and Brandywine, between what forces these battles were fought and in what coun- tries; the fact of the separation between the northern and southern Methodist churches and other similar events, will be judicially noticed. So proclamations of war and peace by the chief executive officer of the government; of national holidays; proclamations declaring a port blockaded, or the blockade raised; the proclamations of military governors or of the governors of the different states; legislative decrees, when published; copies of pub- lic documents, when printed by order of Congress; the reports of the different heads of the departments of the federal and state governments, when the same are re- quired by law; books of acknowledged authority and treaties made with foreign powers; the reports made of natural surveys; proclamations calling out the militia; the date of an insurrectionary movement and its suppres- sion by federal or state forces, and such like events, will also be judicially noticed. Of what other matters will the courts take judicial notice ? 258 JUDICIAL NOTICE. 259 A. They will take notice of the practices in the differ- ent departments of the federal government, and the courts of each state will take notice of the practice in the different departments of the state governments; of the rules of procedure in the supreme court of the United States and the supreme court of the state; of the reports made by the secretary of the interior, postmaster general and secretary of the treasury and other cabinet officers; of like reports made by state officials, when required by law; of proclamations convening congress or the legisla- ture. Q. Will the courts take notice of letters written or re- ports made by any of these officials, of a private nature and not of an official character ? A. They will not. On the subject of judicial notice, see 1 Whart. Ev. § 338; Smith v. Stevens, 82 Ill. 554; People v. Williams, 64 Cal. 87; Ashley v. Martin, 50 Ala. 537; Foscue v. Lyon, 55 id. 440; Ellis v. Reddin, 12 Kans. 306; Andrews v. Knox, 70 Ill. 65; Com. v. May, 67 Ind. 562; Rice v. Shook, 27 Ark. 137; Hart v. State, 55 Ind. 599; Buford v. Tucker, 44 Ala. 89; Lumpkin v. Murrell, 46 Tex 51. Says Mr. Taylor in his work on Evidence: “The judge will recognize, without proof, the common and statute law and all legal claims, demands, estates, titles, rights, duties, obligations and liabilities existing by the common law or by any custom, or created by any statute, the rules of equity and all equitable estates, titles, rights, duties and liabilities, the cardinal rule that, whenever the rules of equity and the common law differ, those of equity must prevail; the law of nations. the maritime law.” The courts will also judicially notice the lines and natural boundaries which separate one state from another and the existence and jurisdiction of other states of the union; the existence and form of govern- ment of foreign states; the fact that one country is ruled by a king and another by an emperor, or whether the government is republican or monarchial. Martin v. Stille, 3 Whart. 346. 260 Law AND PRINCIPLES OF EVIDENCE. Q. Will the courts recognize, without proof, the seals of the different constitutional courts, state and federal, where, under the law, such courts are required to keep seals ? A. The courts of one state will recognize the seals of the courts of other states and of the federal courts, and federal courts will recognize the seals of the state courts and other federal courts, when such courts are constitu- tional and required to keep seals. 1 Whart. Ev. § 322; Adams v. Way, 33 Conn. 419; Turnbull v. Payson, 95 U.S. 418. Q. Will the handwriting of the chief executive of a state also be recognized ? A. It is so held. Q. Will the courts judicially recognize the geographi- cal and political divisions of the United States and of the different states, their rivers and mountains, towns and cities, their counties and county sites? A. They will. They will also recognize the form of their own government, its different officials and their authority ; that the different judicial circuits and dis- tricts that contain courts, are courts of record and have jurisdiction in certain matters, or that others are not courts of record and have a limited jurisdiction. Q. Will the courts recognize the seals of the different heads of the departments in the state and federal gov- ernments ? A. They will, when the heads of such departments are required to keep and use seals. On this subject, see authorities cited above. Q Will a court take judicial notice that a railroad be- longs to a certain system of roads ? A. It will not, unless it is aware of the contract under which the system was created. Miller v. R. Co., 185, W. Rep. 954 (Tex.). ‘‘The court will take judicial notice of the functions of such railway officers as ticket agents and conductors, as matters of common experi- JUDICIAL NOTICE. 261 ence, and that passengers are supposed, on the same ground, to know these functions and the regulations of the companies to which they trust themselves.” R. Co. v. Walters, 91 Ala. 435; R. Co. v. Coskey, 92 id. 254; Am. Dig. (1891), 1630, §§ 2, 4; id. (1892), 1887, § 4 They will also take judicial notice of the journals of the two branches of the legislature, to see that a bill was passed by a constitutional majority and that it was read three times, on three several days. Q. Will a court take judicial notice that beer is a fer- mented liquor; that certain chemical compounds are highly combustible; of the time of sunset and sunrise; of the equinox; of the seasons; of warm and cold climates, and of the latitude and longitude of places ? A. It will. Q. Will the court take judicial notice that a certain town is in a certain county ? A. It will. Am. Dig. (1892) 1890, § 17; Carey v. Reeves, 46 Kans. 571; Am. Dig. (1891) 1631. It will also take notice that a city is duly incorporated under the laws of the state. Penn Co. v. Horton, 31 N. E. Rep. 45. § Will the courts take judicial notice of the rate of interest in a foreign country ? A. They will not. Q. Will courts take notice of the ordinances of a mu- nicipal corporation ? A. They will not; but such ordinances must be proven. Q. Will judicial notice be taken of the population of cities according to authorized census reports ? A. It will. Hawkins v. Thomas, 29 N. E. Rep. 157; Am. Dig. (1892), 1891. Q. What is the general rule as to facts of which the court will take notice without proof ? A. Matters of common knowledge and open to the commonest observation, and which are so well known and recognized that they may be said to prove them- selves, will be judicially noticed. In R. Co. v. Dey, 48 262 Law AND PRINCIPLES OF EVIDENCE, N. W. Rep. 98, it is held that ‘‘ courts will take judicial notice that it is the custom of railways to transfer from one to another loaded cars for continuous transportation over different lines,” and in R. Co. v. Williams, 9 So. Rep 203, it is held that ‘‘ courts will take judicial notice that railroad lines are marked out and grades fixed by the company’s engineer, and it cannot be contended, in an action against the company for damages to property by excavations in the construction of its road, that de- fendant is not connected with the damage; since, for aught that appears, the grading contractor might have avoided the injury by making shallower cuts.” Q. Will the courts of a municipal corporation take judi- cial notice of the ordinances of the city ? A. They will. Q. Will the courts generally take judicial notice of scientific facts ? A. It is said that where such facts are axiomatic the courts will take judicial notice; but such is not the case where eminent scientific gentlemen differ. Q. Will coincidence of the days of the week and days of the month be judicially noticed ? A. They will; and it has been held that counsel may use an almanac to contradict a witness as to dates, although such almanac was not tendered in evidence. Wilson v. Van Leer, 17 Atl. Rep. 1097; Am. Dig. (1889), 1358. _ Q. Will the courts take judicial notice of the laws of a foreign state ? A. They will not, unless such laws have been pleaded and proven. Nor will the courts of one state take judi- cial notice of the laws of another state; nor will they take judicial notice of the rates of interest prevailing in other states. Ins. Co. v. Forcheimer, 5 So. Rep. 870. Q. Will the United States courts take judicial notice of the statutes of the different states without pleading or proof ? A. They will. JUDICIAL NOTICE. 263 Q. Will the courts take judicial notice of the bounda- ries of states and counties 4 A. They will. Accordingly it has been held that where, in a railroad case, the proof showed that an injury was received on the road two miles from the city in which the court was being held, the court would take notice that the injury was received in the county, although no other proof was furnished. Q. It has been seen that courts will not take judicial notice of the ordinances of a city. Must such ordinances be averred and proved like other facts ? A They must. The pleadings must set forth the con- tents of the ordinance relied on. Austin v. Walton, 5 8S. W. Rep. (Tex.) 70. Q. Will judicial notice be taken of the time when crops usually mature 1 A. It will. Q. Will judicial notice be taken of the course of large rivers, and whether navigable; of extensive mountain ranges; of the boundaries formed by mountains and rivers, and other natural boundaries ? A. It will. Q. Where matters are of a public nature and are gen- erally known by all well-informed people, will they be recognized by the courts? A. They will. The courts will also take notice of the population of cities as set forth in the census. Q. Will the state courts take judicial notice of the acts of Congress ? A. They will. Q. Where, in a railroad suit in one state, the statutes of another state are relied on to authorize a recovery, what is the rule ? A. The particular statute relied on must be set forth in the declaration and proven like any other fact at the trial. 264 Law AND PRINCIPLES OF EVIDENCE. Q. To what extent and for what purposes will the seal of a commercial notary be recognized ? A. The courts of the different states recognize intra and extra-territorially the seals of commercial notaries public. Such recognition is indispensable to commercial intercourse, and the law merchant requires that due consideration be given to the seals and certificates of these public agents. Commercial intercourse between distant cities would otherwise be seriously crippled. Such seals, however, are only prima facie evidence of the acts of the notary, and proof may be offered to im- peach them. It may be shown that the facts set forth in the certificate are untrue. Pierce v. Judseth, 106 U. S. 546; Fellows v. Menasha, 11 Wis. 558; Stephens v. Williams, 46 Iowa, 540. Q. Is the notarial certificate evidence of demand for payment and non-payment ? A. Itis. Itis said to be prima facie evidence of all it avers within the scope of the duties of the notary. It is, by no means, conclusive as to the truth of the facts it recites, but the recitals are open to rebuttal. In the absence of countervailing testimony, however, all facts which it was the duty of the notary to recite are taken as true. If the notary transcend the scope of his official duty and recite facts in no way connected with his duty, the recital does not furnish even prima facie evidence of the facts. Walker v. Bank, 3 Ga. 486. Q. As a general rule, may all notarial acts in relation to bills of exchange, drafts and promissory notes be proven by the certificate of the notary ? A. They may. Q. Where there are two sets of notarial protests on same bill, may both be read without proof ? A. They may. Q. Where the certificate recites that notice, was duly given to the indorsers of non-payment of a bill by send- Jubic1aL Novice. 265 ing same to their address, must it be shown that they resided at the places to which the letters were sent ? A. It must; for the mere fact that the notice was for- warded by post, addressed to the indorsers, at a certain place, is not sufficient evidence that the notice was received, unless there be additional proof that the indorsers resided at those places. Q. How is the fact of protest shown ? A. By producing the formal instrument of protest. The seals of commercial notaries will be judically recog- nized by the courts. The seal should always be attached to the certificate, and the date of the protest should be distinctly stated. The commercial notary is an officer universally recognized, and while his certificate is only prima facie evidence, there is a strong presumption of the truth of the facts it recites. Q. Is the protest of a foreign notary of bills of ex- change evidence in the different states ? A. It is. Q. Is the certificate of the notary evidence of any facts except what he does under the law merchant 4 A. It is not. Q. Are the entries of notaries admissible to prove acts in demanding payment and giving notice of non-pay- ment ? A. They are. ‘‘ The protest of a notary is his deposi- tion to the truth of the facts contained in it, and his position in the cause is that of a witness deposing under the sanction of an oath.” As to foreign notaries it is said in Cowen and Hill’s notes to Phillips on Evidence: “His certificate as to foreign protests is accredited on general principles of commercial policy and convenience; but even the lex mercatoria does not recognize him as possessing authority to certify the execution of instru- ments, either on the acknowledgment of the party, proof of witnesses, or otherwise.” The probate of a foreign notary public will not dispense with formal proof of the 34 266 Law AND PRINCIPLES OF EVIDENCE. execution of an instrument when offered in evidence in any of the states. Q. Is it necessary that the accommodation indorser demand payment before suit ? A. It is not. Q. Will an unsigned notice of demand and non-pay- ment, sent by a notary to an indorser, be sufficient # A. It will not. Q. Where the holder of a note incloses the protest in an envelope, properly stamped, and addresses the letter to the indorser at a certain street and number, with notice on the back of the letter to return to him in so many days if not delivered, will this be sufficient 4 A. It will. Q. How may it be shown that notice of dishonor was given to indorsers? A. “For the purpose of proving notice of dishonor to the indorsers, the certificate of a notary public, made at the time of protesting the note for non-payment, and annexed to the protest itself, may be given in evidence in connection with the testimony of the notary himself to the effect that the certificate is genuine, and that, though he has no recollection of the facts stated therein, or any of them, he is satisfied of their truth, because he would not have certified them had he not been convinced of their truth at the time.” Allen v. Bank, 60 Ga. 347-8. In the same case it is held that where the mail or post is used as means of conveying notice to the indorsers, and it is in evidence that notice did not in fact reach them, the plaintiff must make it appear that the letters, or notices, were in a condition to pass to the indorsers in the ordinary course of the postal service. ‘That is, that they were properly directed and stamped, or with the postage otherwise duly paid. Evidence that the notary ‘‘served” the indorsers by depositing the said notices in the postoffice, with no statement as to the direction, or as to the payment of postage, was not suffi- JUDICIAL NorTIcE. 267 cient, where the indorsers testified that they did not receive notice. See as to notice, 2 Dan. Neg. Instr. 17, 18, 74, 58; Bank v. Peirce, 3 Ala. 321; Spencer v. Bank of Salina, 3 Hill, 520; Bank v. Warner, 10 Allen, 522; Smith Mer. L. 273, 290 (note); 1 Greenl. Ev. § 46; Story on Bills, 229; Mahone v. Bryant, 56 Ga. 294. Q. Is the seal of a notary necessary, except where he performs notarial acts ? A. It is not. Q. Is the judex fort bound to accept the foreign law when it is proven ¢ A. He is, unless it is in conflict with the law of the forum, or contrary to the public policy of the state. Be- fore the court can take any action, however, it must be clearly shown to be the law of the foreign state. The foreign law may be proven by introducing the printed codes of any of the states, and in the case of foreign laws, by the exemplification under the seal of the government, or by the testimony of persons skilled in the laws of the state or foreign government. The best attainable evidence is required. ‘‘An expert,” says Dr. Wharton, 1 Whart. Ev. § 308, ‘‘ thus called is competent to prove that a book offered in evidence, contains the statute of the foreign state whose law is in controversy. The expert may not only verify the statutes, but state the construction given to them, refreshing his memory by references. To admita statute it is not necessary to show that it has not been repealed, or modified down to the period when it is offered in evidence. The court takes the foreign law sworn to, not from the books produced, but from the witness who testifies what the law is.” Copies of foreign laws, exem- plified under the seal of the foreign state, or where one will swear that he has compared the copy with the foreign law, and that it is correct, will be admitted as proof. A. Will not the courts of one state judicially recognize the fact that the courts of other states have certain pow- ers common to courts of record ? A. They will, and will recognize that such courts of 268 Law AND PRINCIPLES OF EVIDENCE. record have sheriffs and clerks, and that such officers ex- ercise the usual powers vested in officers of courts of rec- ord. Morse v. Hewitt, 28 Mich. 481; Hawks v. Kenne- bec, 7 Mass. 461; Ripley v. Warren, 2 Pick. 592; McKin- ney v. O’Connor, 26 Tex. 5; Taylor Ev. § 19. Q. Will they recognize the authority of other courts of record of the same state, and their powers and juris- diction and prerogatives ? A. They will. Courts of record are always presumed to have had jurisdiction of the person and subject-matter, and being of higher dignity than ordinary courts not of record, where their proceedings are regular, every possi- ble presumption will be raised in their favor. Bethune v. Hale, 45 Ala. 522; Lewis v. Wintrode, 76 Ind. 18; Hamman v. Mink, 99 id. 279; Gold Ins. Co. v. Cobb, 57 Ala. 547; Cutter v. Carothers, 48 Cal. 178; Cherry v. Baker, 17 Md. 75; Cary vu. State, 76 Ala. 78; McKinney v. O'Connor, 26 Tex. 5. Where the practice of inferior courts, not of record, is governed by the statute, it will also be recognized. Lindsay v. Williams, 17 Ala. 229; 1 Whart. Ev. § 324; Ha parte Peterson, 33 Ala. 74; Rod- gers vu. State, 50 id. 102; Graham v. Henderson, 42 IIL. 514; McGinnis v. State, 24 Ind. 500; Fox v. Com., 81 Penn. St. 511. Q. Will courts recognize the pleadings in all cases properly before them without proof ? A. They will. The names of regular practicing attor- neys appearing on the pleadings, and marked on the docket, and other facts of record will be recognized. Brucker v. State, 19 Wis. 537-9; Secrist v. Petty, 109 II. 188; Leavitt v. Cutler, 37 Wis. 46; Farrar v. Bates, 55 Tex. 193. Q. Will other pleadings in another case be recog- nized ? A. If it become necessary to use pleadings in another case, they must be introduced in evidence. Lake Water Co. v. Cowles, 31 Cal. 215; State v. Edwards, 19 Mo. 674; Baker v. Wygatt, 14 Iowa, 131. Jupic1aAL NorIcE. 269 Q, Will the courts recognize its own subordinate offi- cers ? A. They will recognize their own, but not the officers of other courts. 1 Whart. Ev. § 325; Buall v. State, 72 Ind. 523. Q. Where any particular custom is notorious, and is universally recognized in any trade, will the courts recog- nize it without proof ? A. They will. Q. Give some examples of customs which will be judi- cially recognized ? A. The custom which requires a person who is driving on a public road and who meets another, to drive to the right; the custom of observing certain holidays; the cus- tom among merchants, lawyers and physicians; the cus- tom of other professions. Q. Will not the courts also take notice of great histori- cal events ? A. They will. Notice will be taken, for example, that on the 4th day of July, 1776, the American colonies as- serted their independence; that the war between the states began in 1861, by the firing on Fort Sumter; that the Confederate armies surrendered at Appomattox; of the dates of great financial panics; of the birthday of Washington and Lee; of the discovery of America; of the worthlessness of Confederate money at a certain time; of Sherman’s march to the sea; of the restoration of civil government in the south; of the surrender of Cornwal- lis at Yorktown, and such other matters of history. Payne v. Treadwell, 16 Cal. 220; Lindsey v. Atty-Gen., 33 Miss. 508; Ashley v. Martin, 50 Ala. 537; Buford v. Tucker, 44 id. 89; Bank of Augusta v. Earle, 13 Pet. 590; Keyser v. Coe, 87 Conn. 597; Terry v. Bank, 66 Ga. 177. Q- Will printed volumes of the laws of sister states, printed by authority, be received in evidence ? A. They will. Q. Where the statutes of one state have been construed 270 Law AND PRINCIPLES OF EVIDENCE. by its courts, will the courts of other states usually fol- low the construction adopted by them ? A. They will. They are not bound by such construc- tion, however, and where the construction is of a com- mon-law principle, they are in no sense bound to follow it. Q. What is the presumption as to the law of other states ? A. The presumption, in the absence of all proof, is that it is the same as the lex fort. 1 Whart. Ev. § 314; Walker v. Walker, 41 Ala. 353; Culbedge v. Napier, 62 id. 618; Bundy v. Hart, 40 Mo. 403; Hydrick v. Burke, 30 Ark. 124; Shumway v. Fleakey, 67 Cal. 459; Connolly v. Riley, 25 Md. 402; Laird v. State, 61 id. 309. Q. By what law is the admissibility of evidence by which a contract is to be enforced, governed ? A. ‘‘ While the interpretation of a contract, as is else- where seen, is usually to be settled, so far as concerns its formal parts, by the lex loci contractus, and so far as its substance, by the lex loci solutions, the admissibility of the evidence by which the contract is to be enforced is to be adjudicated according to the lex fort. The mode of solemnizing instruments adopted by a state will be, as to instruments executed in its territory, extra-territorially respected on the principle locus regit actum.” 1 Whart. Ev. § 316. Q. Will the state court take notice of the practice of the various departments of the federal government ? A. It will not. Q. While the court takes notice of its own records in the trial of a particular case, will it take notice of other records in the same court, unless introduced in evidence ? A. It will not. Q. Give a general statement of facts of which the courts will take notice ? A. ‘‘The courts will take notice of the demonstrable conclusions of science. Thus, a court will take notice of JuDICIAL Norics. 271 the movements of the heavenly bodies; of the gradations of time by longitude; of the magnetic variations from the true meridian; of the coincidence of days of the month with days of the week; of the order of the months; of the days on which fall Sundays and holidays; of the public coin and currency; of the existence of con- federate currency and its large depreciation during the war, though not of the exact fluctuations of any partic- ular kind of currency; of the standard weights and measures; of distances as calculated by a map; of the or- dinary time of voyages; of the habits of men in masses; of the habits of animals; of the effect of dams in swell- ing streams; of the control exercised by owners of rail- roads; of gift enterprises; of the general characteristics of photography; of the various meanings of the term month, whether calendar or lunar; of the value of or- dinary labor.”? 1 Whart. Ev. § 335. Q. Where the court and jury have the opportunity to inspect, is it necessary to furnish proof ? A. It is not. Thus, where the jury is taken to the scene of the homicide and are permitted to see certain tracks; or where an animal is alleged to have been in- jured by a railroad; or a person has been injured, it is unnecessary to prove such facts as are open to inspection. ‘‘The appearance of a defendant, for instance, so as to make up a basis of comparison in cases of identity, need not be proved by testimony, where the defendant ap- pears in person at the trial.” ‘‘So all instruments by which an offense is alleged to have been committed, all clothes of parties concerned. from which inference may be drawn; all materials in any way, part of the res gestce may be produced at the trial of the case.” In cases of forgery the paper alleged to have been fcrged is indis- pensable, and the jury is permitted to inspect the paper . to determine the question. Q. Will the courts take notice of the passions of anger, hatred, malice, jealousy,envy and the usual effects of passion; of the fact that strong drink intoxicates; that 272 Law AND PRINCIPLES OF EVIDENCE. certain narcotics debilitate; that strychnine and arsenical preparations contain poison; that certain chemicals are combustible; that delirium tremens result from excessive use of intoxicating liquors ? A. They will. See Allen v. Willard, 67 Penn. St. 374; Klare v. State, 48 Ind. 483; Egan v. State, 53 id. 162; Fenton v. State, 100 id. 598; State v. Hayes, 78 Mo. 307; Moseley v. Ins. Co., 55 Vt. 142. Judicial notice will also be taken of the ordinary periods of human life; of the usual period of gestation; of the barrenness of women after they have attained certain ages; of the contagious character of certain diseases; of the effects of certain drugs on the health; of the infirmities which attend ex- treme old age, and the inexperience of persons of tender years. They will also take notice of certain well-estab- lished scientific and mechanical truths; of the laws of gravitation; of the settled principles in mathematics, hydrostatics and hydraulics. Judicial notice will be taken of the sacred scriptures; of standard works on ancient and modern history; of ecclesiastical history; and of works on astronomy, meteorology, philology, medicine and medical jurisprudence. Q. May the judge trying a case ex mero motu raise questions of law bearing on the issues, although not. brought to his attention by either party, and pass on the same ¢ A. The court sits to administer the law, and is called the mouthpiece of the law. It would be strange, there- fore, if the court were forced to see the law made a stumbling block by the astuteness of counsel on one side: or the dullness and indifference of counsel on the other. It is proper, therefore, that the court should interfere to: arrest an illegal proceeding and to see to the administra- tion of the law in any case before it. The court may, therefore, dismiss a case on its own motion or rule out a question which is clearly illegal. Kessel v. Albetis, 56 Barb. 362; Brown v. Lesson, 2 H. Blackstone, 43. On the subject of judicial notice by the courts of the: JuDICIAL Norice. 273 statutes of another state, and the necessity of proving as well as pleading them, see Hinde 2. Vattier, 5 Pet. 398; State v. Abbott, 29 Vt. 60; Mullen v. Morris, 2 Penn. St. 85; Hunter v. Fulcher, 5 Va. 126; Barkman v. Hopkins, 11 Ark. 157; Stewart v. Swanzy, 23 Miss. 502; 1 Whart. Kv. § 289; Cutler v. Wright, 22 N. Y. 472; Ausley v. Meikle, 81 Ind. 260; Gas Co. v. Wheelock, 80 N Y. 278; Clanton v. Barnes, 50 Ala. 260; Paine v. Lake Erie, 31 Ind. 283; Crake v. Crake, 18 id. 156. Q. Where a question is raised in the progress of a trial as to whether all the constitutional requirements were observed in the passage of an act, by whom is the ques- tion to be determined ? A. By the court. This it may do by an inspection of the journals of the senate and house, and these are held to be conclusive as to the facts recited in them. Cooley Con. Lim. 135; Gardner v. Collector, 6 Wall. 499; So. Ottawa v. Perkins, 94 U. S. 260; Walnut v. Wade, 103 id. 683; Ballentyne v. Wickersham, 75 Ala. 533; Amos- keag Bank v. Ottawa, 106 U. 8. 667; Opinion of Justices, 52 N. H. 622; People v. Board, 52 N. Y. 556; State v. McCracken, 42 Tex. 283; Walker v. State, 49 Ala. 429; Allen v. Tysen, 50 Ga. 374; Feibleman v. State, 98 Ind. 516; Ryan v. Lynch, 68 Il. 160; Legg v. Mayor, 42 Md. 220, and other authorities cited in 1 Whart. Ev. § 290, et seq. Q. Is the court required to take judicial notice of pri- vate laws? A. It is not; but they must be proven as any other facts. Ellis v. Eastman, 32 Cal. 447; Broad St. Hotel v. Weaver, 57 Ala. 26; State v. Jarrett, 17 Md. 309; Alle- gheny v. Nelson, 25 Penn. St. 332. Q. When the question of what is the foreign law is in- volved, by whom is the sufficiency of the proof deter- mined ? A. By the court. Ingraham v. Hart, 11 Ohio, 255; Dyer v. Smith, 12 Conn. 384; Matter of Diez, 56 Barb. 591. 385 274 Law AND PRINCIPLES OF EVIDENCE. Q. Where the law of one state is simply an adoption of the common law, are the courts of other states bound to follow the construction of the law as adopted by that state ? A. They are not. Q. Will the courts of one state recognize the modes of attestation adopted by other states for the attestation of papers ? A. They will. Q. What is the rule as to the production of proof in cases where the court takes judicial notice ¢ A. It is well stated in Steph. Ev. § 98: ‘‘ No evidence of any fact of which the court will take judicial notice need be given by the party alleging its existence; but the judge, upon being called on to take judicial notice thereof, may, if he be unacquainted with such fact, refer to any person, or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces such document or book of reference.” CHAPTER VII. BURDEN OF PROOF. Q. On whom, as a general rule, does the burden of proof rest in the determination of any matter or issue on trial ? A. It is on the party holding the affirmative. It is in- cumbent on him who asserts a fact necessary to make out his case to prove it. Hz incumbit probatio qui af- firmat non qui negat. Whoever asserts or denies a fact, not judicially recognized as true, which fact he must either assert or deny in order to make out his case or de- fense, assumes the burden, and must bear it until he shifts it to his adversary. If he assert a negative, he holds the affirmative as to the proof of the negative, and the other party holds the negative of the affirmative negation, and the burden is on the former. Q. What is the safe general rule for determining in any stage of a proceeding, on whom the burden rests at any particular stage of the trial ? A. The burden is on him who, if the case should stop at that point, must necessarily lose. If the issue must be decided in favor of one or the other parties, if the case should stop where it is, then there is, at that time, no burden on him, in whose favor it must then be decided, but it is on the party who must lose, if the case should close. Q. Give an example, illustrating the rule ? A. “A” has a fi. fa. levied on land as the property of ‘“‘B,” defendant in fi fa. ‘“‘B” is not in possession of the land at the date of the judgment, and was not in possession between the date of the judgment and the date of the levy. ‘‘C” is in possession and interposes a claim to the land. In the beginning of the trial if ‘‘ A” introduces no evidence, and he stops just there, ‘‘A” 275 276 Law AND PRINCIPLES oF EVIDENCE. must necessarily lose, and therefore, in the beginning the burden 1s on him and not on the claimant. But “A” introduces his fi fa. with the levy, and produces evidence to show that at the date of the judgment and since, ‘‘C” was the mere tenant of ‘‘B,” and paid him rents as such tenant, and that ‘‘C” had often admitted the relation of landlord and tenant, and that he had never purchased the land. Now, if the case were to close the land must be found subject, and ‘‘C” would lose. The burden is now on him, and he must shift it or lose. But ‘‘C” in- troduces a warranty deed from ‘‘B” to him for a certain consideration expressed in the deed, and the deed shows on its face that it was executed, delivered and recorded long before the date of *‘ A’s” judgment. He alsoshows that he went into possession at the date of the purchase, and has been in possession ever since, paying taxes and exercising acts of ownership. Now, if the case were to close, ‘‘ A” must lose; and hence the burden has been shifted back to him. ‘‘A” then proves that the deed was made by ‘‘B” to ‘*C” in fraud of his creditors ; that ‘‘C” was a party to the fraud ; that the considera- tion paid was grossly inadequate, and that there was a secret agreement between the parties that ‘‘B” should have the land back as soon as the storm blew over, and that both ‘‘B” and ‘‘C” had admitted that the sale was merely to protect ‘‘B” from his creditors. Here, if the case would be decided against ‘‘ C,” the burden has again been shifted to him. Now ‘“‘C” may deny all the facts shown by ‘‘ A,” and again shift the burden to him, and soon until the evidence closes on both sides, when the jury must decide on whom the burden last rested, by finding against him. It isoften a most difficult question to determine where the burden is, but the doubt is always resolved by the verdict of the jury. Q. What is another form of the same rule ? A. It may be laid down as a general proposition that the burden of proof is on him who is bound to change the state of things, in order to make out his case or defense. BurRpDEN OF PRooF. 277 Shulman v. Brantley, 50 Ala. 81 ; Stoddard v. Kelly, id. 453 ; Fox v. Hilliard, 35 Miss. 160 ; Richardson v. George, 34 Mo. 104; Kelsey v. Frazier, 78 Mo. 111; Mills v. Johnston, 23 Tex. 308 ; Luckhart v. Ogden, 30 Cal. 547 ; Hutchins v. Hamilton, 34 Tex. 290; Ketchum v. Ex. Co., 52 Mo. 390; Adams Ex. Co. v. Stettauers, 61 II. 184; Freck v. R. Co., 39 Md. 574; Smith’s Appeal, 52 Mich. 415; West 2. St. John, 63 Iowa, 287 ; Palmer v. Wright, 53 Ind. 486 ; Davidson v. Nicholson, 59 Ind. 411; Jones v. Ames, 135 Mass. 361 ; New Bedford v. Hingham, 117 Mass. 445; Dillingham v. Roberts, 77 Me. 284; Kendall v. Brownson, 47 N. H. 186. Q. Is it not sometimes difficult to determine where the burden rests ? A. It is; but the rule heretofore laid down will, in a majority of cases, determine thé question. Q. May it frequently devolve on a party to establish a negative ? A. It may, as when the defendant sets up an alibi. Here he must prove a negative by the proof of an affirm- ative; that is, that he was not at the place where the crime is alleged to have been committed, but was at ‘‘A” at such a distance from the former place as to involve the impossibility of his being at the scene of the crime. Or he may prove by a person who was present at the time the crime was committed, or act done that he did not see the defendant, and that he wouid have seen him if he had been present. Or where plaintiff sues for malicious prosecution, he must in some way negative his guilt by showing that he was not guilty of the crime with which the plaintiff charged him. So, where an employee sues for damages on account of personal in- juries, he must show that he was not guilty of negligence contributing to the injury, or that the railroad or its other employees were guilty of negligence causing the injury, before any burden is on the defendant King v. Colvin, 11 &. I. 582; Smith v. Kent, 79 Ind. 362; Ames v. Snider, 69 Ill. 376; Stewart v. Sonneborn, 98 U. 8. 187; 278 Law AND PRINCIPLES OF EVIDENCE. Thaule v. Krekeler, 81 N. Y. 428; Burton v. R. Co., 33 Minn. 189. Whenever the plaintiff bases his suit, or the defendant his defense, on a negative allegation, the bur- den is on him to show it. Taylor Ev. § 338. Q. On whom does the burden generally rest at the be- ginning of a trial ? A. On the plaintiff. The plaintiff comes into court with certain allegations of fact on which he must rely to make out his case. If he fail to establish the material allegations, he may be nonsuited when he has closed his evidence. The burden is on him, and the defendant is not bound to move until the plaintiff, by evidence, shifts the burden. Q. May not the burden be frequently shifted during the progress of the trial ? A. It may. For example, where the defendant ina suit on a note, sets up non est factum or failure of con- sideration, total or partial; or want of consideration; or that the note or other obligation sued on, is founded on a gambling or other illegal or immoral contract; or that it was given to suppress a prosecution for a felony; or that it has been paid; or that the note is a forgery; or that he was an infant; or that the note is barred by the statute of limitations, as soon as the note is offered in evidence, the burden is shifted to the defendant, and where he in- troduces sufficient evidence to prove one or any one of these defenses, the burden is shifted back to the plaintiff. Q. Where a conveyance made by a debtor in failing circumstances is assailed by the creditors for fraud, and the latter produces evidence to support his hypothesis, on whom is the burden cast ? A. It is on the grantor, and it devolves on him to show that there was no fraud, or that he was not a party to it. by showing that his purchase was bona fide. He must meet the impeachment of the grant by proof that he paid value, and if there were any fraudulent intent, he had no knowledge of it. Q. Who generally opens and concludes ? BURDEN oF PROOF. 279 A. ‘‘ Where the plaintiff has anything to prove in order to get a verdict, whether in an action ex contractu or ex delicto, and whether to establish his right of action or to fix the amount of his damages, the right to begin and reply belongs to him.” Thompson on Trials, § 298; Veiths v. Hagge, 8 Iowa, 163; Love v. Dickerson, 85 N. C. 5; Fry v. Bennett, 28 N. Y. 324; Johnson v. Josephs, 75 Me. 544; Pierce v. Lyman, 28 Ark. 550; Camp v. Brown, 48 Ind. 575; Boyce v. Lake, 178. C. 481; Perkins v. Ermel, 2 Kans. 325, 330. , Q. In gambling contracts, such as option deals or bucket shop contracts, where the contracts are assailed, on whom is the burden ? A. It is on the defendant to show that actual delivery was not intended, but that it was a mere cloak to cover the gambling. Labaume v. Hill, 1 Mo. 45; Smith v. Bouvier, 70 Penn. St. 325; Fareira v. Gabell, 89 id. 89; Hartt ». Rector, 13 Mo. 503; Barnard v. Backhans, 52 Wis. 593; Tenney v. Foote, 95 Ill. 99. Q. Where the question is whether the sale of a chattel was absolute or conditional, on whom is the burden ? A. If the plaintiff claims that it was absolute, he must show it; if he claims that it was conditional, he must show that the conditions have been performed. Ingle v. Mudd, 86 Mo. 216; Richey v. Burns, 83 id. 362; Denny v. Willard, 11 Pick. 522. Q. In actions for malicious prosecution and for false imprisonment, on whom is the burden ? A. It is on the plaintiff. ‘‘He must show affirmatively to the satisfaction of the jury, by a preponderance of the evidence, that the defendant sued out the warrant against the plaintiff without any reasonable or probable cause. therefor, and also that, in so doing, he was actuated by malice toward the plaintiff.” Cook ». Walker, 30 Ga. 519; Burhans v. Sandford, 19 Wend. 417; Jacks v. Stimp- son, 13 Ill. 701; Ammerman v. Crosby, 26 Ind. 451; Mc- Lellan v. Bank, 24 Me. 566; Moore v. Sanborin, 42 Mo. 490; Hilson v. Forrest, 12 Tex. 320; Stone v. Stevens, 12 280 Law AND PRINCIPLES OF EVIDENCE. Conn. 219; Ahern v. Collins, 39 Mo. 146. As to what is probable cause, see Shaul v. Brown, 28 Iowa 388, 39, 50; Peltier 7. Mict, 50 Ill. 511. Q. Does the same rule apply to warehousemen and to contracts of hiring ? A. It does. Q. What is the reason for imposing on the carrier or bailee the burden of showing how the damage or loss occurred % A. It rests on the presumption that as they have been intrusted with the goods and have contracted to keep or carry them for a consideration, they ought to know, if any one does, how the loss or damages happened. The consignor or bailor parts with the possession, and if the burden were imposed on him to establish, by proof, the loss and damage and how it occurred, he would too often be practically remediless. He cannot be supposed to fol- low the goods and guard them when he has paid another to perform this duty. Q. Is there an exception to the general rule ? A. Where the goods have inherent defects and are, in their very nature, liable to deterioration, the burden is on the plaintiff to show more than the mere fact that he delivered the goods. He ought to be prepared to show some damages, not the result of inherent defects and natural tendency to deterioration, but resulting from some other cause before the burden is shifted. Q. Did not the common law make the carrier an in- surer of the goods ? A. It did. Q. What will excuse the common carrier? A. If the loss or damage was the result of inevitable accident or the act of God or the public enemy, the car- rier is excused. Such defenses to be available, how- ever, must be clearly established. The jury should be fully persuaded that what is attributed to the act of God or the public enemy, is not the result of defendant’s own BURDEN OF PROOF. 281 negligence. Where the carrier takes the goods with specified excepted risks, such an ‘‘ accident to machinery, or boilers,” ‘‘ fire,” ‘‘ danger of the river,” ‘‘ sinking of a vessel or collision,” ‘*‘ accidental and uncontrollable events,” the burden is on the carrier to show that the loss or damage resulted from some one or all of these causes. Q. Where the carrier seeks to relieve himself from a common ‘law liability, by showing that there was a printed notice, exempting him from such liability, on whom is the burden ? A. It ison the carrier to show that the shipper had notice of the printed exemptions from risk and assented to them. The mere fact that they were printed on the bill of lading delivered to the shipper, without more, will not bind him. Public policy demands that the carrier should be held to strict accountability and the courts will not relax the rule unless it clearly appear that the parties have entered into contractual relations. R. Co v. Super- visors, 68 Ill. 458; White uv. Transp. Co., 46 Wis. 493; R. Co. v. Brady, 32 Md. 333; 2 Greenl. Ev. § 216; 2 Stark. Ev. § 53; Grace v. Adams, 100 Mass. 505; Belger v. Dinsmore, 51 N. Y. 166, Steers v. Steamship Co., 57 id. 1; Story on Bailments, § 509. Q. Where goods are received by one carrier to be shipped over a number of connecting lines, and are lost or damaged, on whom is the burden of proof # A. The authorities are in conflict. The rule generally adopted in this country is, that it rests on the line which delivered the goods or ought to have delivered them, and it may shift the burden by showing that the goods were delivered in the same condition as they were in when received. Q. Where the bill of lading recites that the goods were received in good condition, on whom is the burden ? A. The burden is on the carrier to show that he is ex- cused on the usual grounds, or that while the goods ap- peared to be in good condition, they were not in such 36 282 Law AND PRINCIPLES OF HVIDENCE. condition, and there were latent defects. Meyer v. Peck, 28 N. Y. 590; Canfield v. R. Co., 18 Barb. 586; Dickerson v. Seelye, 12 id. 99; Bissel v. Price, 16 Ill. 408-413; Ang. on Car. § 2381. Q. Generally, in cases of fraud, on whom is the burden ? A. On the party who alleges fraud. It is held that where a deed is assailed for fraud, the recital of the pay- ment of the purchase money does not shift the burden. Q. Where a conveyance by the husband to the wife is assailed for fraud by the creditor, on whom is the burden ? A. It is on the wife to show that she paid a valuable consideration and had no notice of the fraudulent intent. Transactions between husband and wife should be closely scanned and every means afforded by the court to detect fraud. Q. In criminal cases, where the jury has separated after having been charged with the case, and without the consent of the defendant, on whom does the burden rest to show that the defendant sustained no injury by the separation 4 A. It rests on the state. Monroe v. State, 5 Ga. 86. Q. Where one attempts to avoid his contract on the ground that, at the time he executed, he was insane or intoxicated, on whom does the burden rest to show insan- ity or intoxication ¢ A. The presumption being in favor of sanity and also in favor of capacity to make a contract where the person is suz juris, the burden is on the defendant to show in- sanity or intoxication to such a degree as to incapacitate. Q. Where the vendor of real or personal property retains possession after a sale, and the sale is attacked by the vendor's creditors for fraud, on whom is the burden to show that the sale was bona fide and for value ? A. It is on the defendant; for the retaining possession by the vendor after the sale, is, standing alone, a badge of fraud. BURDEN OF PROOF. 283 Q. Where a will is offered for probate and it is shown by the caveator that before the execution of the will the testator was insane, on whom is the burden to show the sanity of the testator at the time of execution ? A. It is on the propounder. Q. When is the burden on defendant to show that sub- scription to stock was obtained by fraud? A. ‘‘ Where the directors have approved and accepted subscriptions to stock of sufficient amount to bind the stockholders under their contracts, the burden of show- ing that any such subscriptions were worthless or fraud- ulent is on the defendant.” Hayden v. Cotton Factory, 61 Ga. 234. Q. In questions involving marriage and divorce, where there is proof of a valid marriage, on whom is the bur- den to show its dissolution ? A. It is on the party who sets up the dissolution to prove it. So, in charges of bigamy, the burden of show- ing the previous valid marriage and that the first wife is still living, is on the prosecution. And such: facts ought to be shown by clear and indubitable evidence. Q. On whom is the burden of proof in claim cases ? A. The rule is that where the defendant in fi. fa. was in possession of the property at the date of the levy or after the rendition of the judgment, the burden is on the claimant, and in order to shift the burden to the claimant it is the duty of the plaintiff either to show title in the defendant in fi. fa. or possession in him since the date of the judgment. So, where the claimant comes into court and admits his possession of the property at the date of the levy, the burden is on him, and he is entitled to open and conclude. It has been held that where property is levied on as the property of the hus- band, and the wife claims it, while they are living together on the property, the burden is on the claimant. Where the fi. fa. is levied on several city lots, and the defendant is declared’ to be in possession of one of them, as to the other lots the burden is not on the claimant, 284 Law AND PRINCIPLES OF EVIDENCE. and the plaintiff in fi. fa. is entitled to open and con- clude. Q. Where a common carrier receives goods for ship- meut and the same are in a damaged condition when delivered to the consignee, on whom is the burden, where the defendant sets up that the goods were not in good order when received ? A. Itis on the common carrier. Q. In actions of ejectment, on whom is the burden ? A. It is on the plaintiff in ejectment to show title in himself, and he must rely on the strength of his own title and not on the weakness of the defendants. Q. When is the burden on a railroad and when on an employee, to show how an injury was sustained by the latter ? A. The burden is on the plaintiff either to show that he was wholly free from negligence himself or that defendant was guilty of negligence. ‘‘If he rests on a presumption of negligence without actual proof thereof, that presumption applies to him with the same force as others who participated in the same act of common duty, and to get the benefit of the presumption as ap- plied to the others, he must rebut it so far as it applies to himself.” R. Co. v. Campbell, 56 Ga. 586. In the case of employees the presumption that one suing for personal injuries is without fault, does not apply except in cases where he is entirely ‘‘ disconnected with the duties about the particular business which resulted in his injury.’ If the duties in which he was engaged had no connection with the accident, then a presumption does arise that he was without fault. The defendant may, when sued by an employee, show that the plaintiff was negligent or that its agents were without negligence. The doctrine of contributory negligence does not apply to employees. Q. Where one partner signs the name of the firm to a note, on whom is the burden of proof to show lack of authority ? BuRDEN OF PROOF. 285 ° A. The burden is on the partnership, for the presump- tion is, that the partner had the authority. Q. When there is an issue as to the genuineness of a deed, on whom is the burden of proof ? A. It is on the party asserting its genuineness. So, where a plea is filed that there was no consideration for a deed, the burden is on the defendant. Q. Where liquor is sold to a minor, and it is set up by the defendant that he had the parents’ consent to sell to the minor, on whom is the burden ? A. It ison the defendant. So it is on a prisoner to show that his confession was not voluntary. So, one who alleges a mistake, must prove it; and where one pleads the statute of limitations it is on him to show that the claim is barred by the statute. ‘‘The burden of proof generally lies on a party affirming a fact and to the ex- istence of whose case or defense the proof of such fact is essential. If a negative affirmation be so essential the proof of such negative lies on the party affirming it.” See Code of Georgia, § 3758. Q. Where one is sued and sets up a settlement of the matters and things in controversy, on whom is the bur- den of proof ? A. It is on the party pleading a settlement to show it. Q. Where money has been deposited in bank and the deposit is proven, on whom is the burden to show that the money has been checked out ? A. It is on the bank. Q. Where a plaintiff alleges that a conveyance was ob- tained by undue influence, on whom is the burden ? A. It ison the party alleging undue influence to show it. Q. Where a railroad company is sued for personal in- juries and sets up the contributory negligence of plaintiff, on whom is the burden ? A. It is on the defendant to show, by a preponderance of the evidence, that plaintiff’s negligence really con- tributed to the injury; and where the defendant sets up 286 Law AND PRINcIPLES oF EVIDENCE. that plaintiff could, by the exercise of ordinary diligence, have avoided the consequences to himself of defendant’s negligence, the burden is on him to show it. Coasting Co. v. Tolson, 11 Sup. Ct. Rep. 653; 139 U.S. 551; R. Co. v. Calderwood, 89 Ala. 247; Murray v. R. Co., 101 Mo. 236; Carroll v. R. Co., 58 N. Y. 125. Q. In an action against the master to recover for per- sonal injuries, is the plaintiff required to show that he was free from contributory negligence ? A. He is not. Q. Where there is a negative averment in a plaintiff’s declaration against a railroad company for personal in- juries, in which it is set up that the defendant failed to do certain things and that its failure resulted in his inju- ries, is he bound to prove the negative averment ? A. He is. Q. Is not contributory negligence an affirmative de- fense ¢ A. It is, and where suit is brought for the death of a passenger it need not be shown that the deceased was in the exercise of due care. The plaintiff may decline to disclose any acts of negligence on his part, and show the negligence of defendant, and the burden is on defendant to show contributory negligence. Where plaintifi’s evi- dence does not disclose contributory negligence, the bur- den is on the defendant to prove it. The law does not presume contributory negligence. Q. Where the transferee of a negotiable note takes the same before naturity and produces it, on whom is the burden to show that he is not a bona fide holder? A. On the defendant Q. Where suit is brought by an indorsee, and the de- fendant proves that there usury in the note, on whom is the burden then cast ? A. It is on the indorsee to show that he took the paper bona fide for value and before maturity. Where a note is affected with fraud, it is incumbent on the plaintiff to BurDEN oF PROOF. 287 show that he is a bona fide purchaser without notice, before maturity. Pelly v. Onderdonk, 15 N. Y. Supp. 915; Pelly v. Naylor, id. 964, 965. ‘‘In an action on notes by an indorsee, where, after testimony in support of the plea that they were obtained by fraudulent repre- sentations of the payee, plaintiff shows that he acquired them bona fide for value, in the usual course of business, and while they were still current, the prima facie case is restored, in the absence of circumstances attending the purchase amounting to constructive notice, and the burden of proof ison the defendant to show actual knowledge on plaintiff’s part at the time of the pur- chase.’ Bank v. Burgwyn, 14 S. E. Rep. 623. Ina suit against the indorser of a mote the plaintiff makes out a prima facze case when he introduces the note, and where it is required proves demand, protest and notice, but where defendant introduces evidence to show that the note was fraudulently obtained the burden is shifted to the holder of the note or bill. Q. In criminal prosecutions, where, the defendant sets up insanity at the time of the commission of the offense, on whom is the burden ? A. It is on the defendant, who must show insanity by a preponderance of the evidence. Bolling v. State, 54 Ark. 588; People v. McNulty, 93 Cal. 427; People v. Bawden, 90 id. 195. Insanity is an affirmative defense, and when defendant pleads it he assumes the burden. The defendant is not bound to satisfy the jury beyond a reasonable doubt of his insanity, but merely by a pre- ponderance of evidence. State v. Davis, 14 S. E. Rep. 55; 109 N. C. 780. The burden is on the defendant. Moore v. Com., 188. W. Rep. 833; Langdon v. People, 133 Ill. 382. Q. In questions involving the sanity of a person. is it ad- missible to show insanity subsequent to the transaction ? A. Where one is charged with crime his insanity sub- sequent to the alleged commission of the crime may be shown. Moore v. Com., 188. W. Rep. 833. 288 Law AND Principles oF EVIDENCE. Q. Where there is a contract by a carrier safely to carry goods, and certain exceptions are made in the con- tract, on whom is the burden ? A. It is on the carrier to show that the loss or damage fell within some one of the exceptions mentioncd in the contract. Q. On whom is the burden to show that a note sued on has been altered 4 A. It is on the defendant. Conable v. Keaney, 16 N. Y. Supp. 719; 61 Hun, 624; Franklin v. Baker, 48 Ohio St. 296; Hagan v. Ins. Co., 81 Iowa, 321; Roberts 2. R. Co., 48 Minn. 531. Q. On whom is the burden to prove insanity or inca- pacity of the testator at the time of the execution of the will? A. “On a contest of a will on the ground of mental incapacity, testamentary incapacity is an incapacity exist- ing contemporaneously with the execution of the alleged will; and the original presumption of sanity and capacity being always indulged, the burden of proving such incapacity is on contestants, and can only be shifted by showing prior insanity or actual insanity, or other incapacity at the date of the instrument.” LEastis v. Montgomery, 11 So. Rep. 204; Knox »v. Knox, id. 125; Jones v. Jones, 17 N. Y. Supp. 905. Q. On whom does the burden rest to show a material alteration made in a note after delivery ? A. It rests with the holder of the note. Where there is an action to have a security held by a defendant can celled on the ground of material alteration, the rule does. not apply to defendant. Solon v. Bank, 21 N. E. Rep. 168: 114 N. Y. 122; Hodnett v. Pace, 84 Va. 873. Q. In an action on a contract for work done and material furnished, on whom does the burden rest? A. It rests on the plaintiff to prove that he has done the work and furnished the material according to the contract. If there be slight omissions, or the work does BuRDEN OF PROOF 289 not come fully up to the terms of the contract, an allowance may be made for the deficiencies and the con- tract be enforced. Where he shows subsequent com- pliance it will be sufficient. But if in material particulars he has failed to comply with the contract the breach is a good reply to any suit for its enforcement. Q. Where fraud is charged in any transaction, on whom is the burden ? A. Fraud is never presumed, but it is on the party charging it to show some fact or facts from which fraud may be inferred. Q. In criminal prosecutions, on whom does the burden rest ? A. It is on the state to show that the defendant is guilty of the crime charged, beyond a reasonable doubt. The doubt must arise out of or for the want of evidence. Mathematical certainty is not required. A moral and reasonable certainty that the defendant is guilty is all that the law requires. Q. Where suit is brought against a railroad company for firing plaintiff’s premises, on whom does the burden rest ? A. The burden is on the plaintiff to show that the fire was caused by the operation of defendant’s road, and to show the amount of the damages. Where it appears that within afew minutes after a train passed, the fire caught near the track, and that it spread to plaintiff’s premises, the bur den is shifted to the railroad to show that it was not the result of defective machinery, or the negligence of de- fendant’s employees. Evidence that a fire sprang up soon after the train passed, and that there was no fire on the premises, will warrant an inference that the road set fire to the premises. R. Co. v. De Busk, 20 Pac. Rep. 752; 12 Col. 310; R. Co. v. Moffatt, 20 Pac. Rep. 759- See, also, Guillaume v. Hamburgh Co., 42 N. Y. 214; Stertz v. Stewart, 74 Wis. 160; Bernard v. R. Co, 8S. E. Rep. 785. Where plaintiff, by his evidence, makes a prima facie case, the burden is on the defendant to show 37 290 Law AND PRINCIPLES OF EVIDENCE. that the fire was not caused by its negligence. It should make it appear that the most improved machinery was used and that the spark arrester was in good condition. At common law, on proof of damage by fire, the plain- tiff could recover whether defendant was negligent or not. Lawson Rights, Remedies and Practice, § 1354 (note). Every reasonable precaution must be observed by the railroad, and it must show that due and reason- able care proportionate to the danger was used to avoid the danger. Negligent construction of engine, causing the fire, and where the most improved machinery practi- cabie was not used, will make defendant guilty of negli- gence. ‘‘If there was known and in use any apparatus, which applied to an engine would enable it to consume its own sparks, and thus prevent the emission of them to the consequent ignition of combustible property, it would be negligence for a road not to avail itself of such ap- paratus.” Id. § 13859. The road will not be relieved by showing that like machinery was in common use. It should show that its machinery has been frequently and properly inspected. Q. In an action against a warehouseman for property stored, on whom is the burden ? A. The burden is on the defendant to show that the goods have been lost without any negligence on his part. It will not shift the burden by simply showing that the goods have been lost, without showing that the loss was not the result of his own negligence. Q. Where defendant is sued for the value of certain liquors, and sets up that the plaintiff had no license to sell, on whom is the burden ? A. It is on the defendant to establish the fact. In criminal cases, however, the preponderance of authority is, that the state must show that defendant had no license, where he is prosecuted for selling without a license. : Q. On whom is the burden of proof in cases of mar- riage ? BurDEN oF PROOF. 291 A. The burden is on him who asserts either marriage or the contrary. ‘‘ Marriages may be proven either by evidence of the contract which constitutes it, or by evi- dence of the status or matrimonial conditions in life, of which that contract is the foundation. To prove the contract, it is sufficient to prove an unconditional agree- ment of marriage, in the present, as distinguished from an executory agreement to marry, if intended by the parties to constitute them husband and wife, though without solemnization, if there be proof of solemniza- tion.” Abb. Tr. Ev. § 15. Q. Where questions of legitimacy are involved, on whom does the burden rest ? . A. It rests on the party alleging illegitimacy to show it beyond a reasonable doubt, where the issue is from a wife. Q. Where one is sued as a partner, and pleads dissolu- tion of the partnership, on whom is the burden ? A. It is on the defendant to prove the dissolution and also show notice of dissolution. i Q. In suits against carriers for loss or damage to goods, on whom is the burden to show delivery of the goods to the common carrier ? A. It is on the plaintiff, and he must show that the property was actually delivered to the defendant by be- ing placed in such a position that it might be taken care of by him or his agent having charge of the business, and so as to be under his immediate control.” Delivery may be shown by exhibiting in evidence the bill of lading, and showing the agency of the person who gave it. Where there is evidence that the goods were placed on board, it is not indispensable to produce the bill of lading. The bill of lading, when offered, should be shown to have been executed. Q. Where duplicates of bills of lading are given, which is the primary evidence ? A. The one delivered to the plaintiff. 292 Law AND PRINCIPLES oF EVIDENCE. (). Where there 1s evidence that an agent of the carrier at a certain place had charge of the depot, and attended to receiving and shipping goods, will such evidence be sufficient to warrant the presumption that he had author- ity to sign the bill of lading, or make other contracts touching the shipping of goods ? A. It will. Q. Is either party absolutely bound by the contents of the invoice as to the quantity or quality of the goods shipped ? A. He is not. Q. What is the presumption as to the condition of the goods when shipped ? A. The presumption is that they were in good condi- tion. Q. May an agreement not be shown by parol with the bill of lading, as to the time and manner in which goods were to be shipped? A. It may. Q. Where it is alleged that the damage to goods was caused by delay, on whom is the burden of proof ? A. It is on the carrier to show how the damage occur- red ? Q. What is the general rule as to the proof necessary to be adduced by the plaintiff ? A. ‘‘The usual course of proof is, for plaintiff to pro- duce the bill of lading, showing the delivery of the prop- erty to defendants, and their contract to carry it, and to prove non-delivery, or arrival in a damaged condition, and the damages sustained. This evidence, if there be nothing to indicate that the loss was from a cause con- sistent with the carrier’s exemption from liability, makes a prima facie case sufficient to go to the jury in the ab- sence of other evidence. The presumption is that the in- jury was occasioned by the defendant’s acts or fault.” Abb. Tr. Ev. § 34; Wilson v. Barnard, 67 Cal. 425, 431; Rixford v. Smith, 52 N. H. 355; 18 Am. Rep. 42; BuRDEN OF PROOF. 293 Western Tr. Co. v. Downer, 11 Wall. 133; Shaw v. Gard- ner, 12 Gray, 488; R. Co. v. Hedger, 9 Bush. 645; 15 Am. Rep. 740. ‘'The carrier's acceptance of goods, marked for a point beyond his own route, does not alone imply a contract involving liability as carrier beyond his route. But such a liability may be established by an express con- tract, or by showing circumstances which indicate such an understanding. Forinstance, that the company held itself out as a carrier for the entire distance, or received other freight for the entire distance, or even agreed on an entire sum to be paid at the other end, or that the connecting lines divided through freight in an agreed manner.” Abb. Tr. Ev. 570, and authorities. R. Co. v. Pratt, 22 Wall. 129; Root v. R. Co., 45 N. Y. 524; Gray v. Jackson, 51 N. H. 9; 12 Am. Rep. 1. There is conflict of authority, however, on this point. Q. On whom is the burden to show title to the goods shipped ? A. It is on the plaintiff. This he may do by producing the bill of lading in which he is named as consignor and consignee or consignor only, the name of the consignee not being mentioned, or in which he is named as consignee, or to which it appears he is the transferee of the consignee named. This would makea prima facte case. The evi- dence, however, is open to rebuttal, unless it be the case of a bona fide transferee or assignee, in which case the defendant will not be allowed to dispute the title, or to show that the quantity or quality of the goods was differ- ent from what is expressed in the bill of lading. Q. Set off and recoupment are pleaded to a suit on a note; on whom is the burden ? A. It is on the defendant to show the items in the set off are just, and that he has sustained damage by breach of some cross obligation arising out of the same contract. Q. In an issue of devisavit vel non, on whom is the burden ? A. After proof of the execution of the paper as the last will and testament of deceased, per testes, the burden is 294 Law AND PRINCIPLES OF EVIDENCE. on the caveators to establish one or all the grounds of the caveat. Q. Where one seeks to recover the possession of prop- erty from another, what must the plaintiff show ? A. He must show that he is entitled to the possession. It will not do for him to show that defendant has no right to the possession. He must show that he has a better right. Q. In suits for breach of warranty of the quality of an article, on whom is the burden ? A. It is on the plaintiff to show the breach, and dam- age flowing from the breach. Q. In suits for breach of warranty of title to land, or for deficiency of quantity, on whom is the burden? A. The burden is on the plaintiff to show eviction by title paramount or what is equivalent. It will be suffi- cient for the plaintiff to prove that ejectment was brought against him and a recovery had. He need not wait until he has been actually turned out of possession by the sheriff. If he show that on a trial of the case the land was recovered, or that it was sold under legal pro- cess to satisfy debts due by his grantor, the breach is sufficiently established. So, he may show that the land was grossly deficient in quantity. Where the deficiency in the number of acres is slight, it may be compensated in damages; but where it is so great a deficiency as to justify the conclusion that the grantee would not have purchased had he known it, the sale may be set aside. Where plaintiff shows eviction by title paramount, he should show that he really yielded to superior title. Q. On whom is the burden to show a partnership where the plea denies it ? A. It is on the party alleging it. This he may do by showing that they held themselves out as partners; they dealt with third parties as partners; that one in the presence of the other stated that they were partners, and that there was no denial; that hand-bills bearing their names as partners were circulated with their con- BuRDEN OF PRooF. 295 sen ; that goods in the store were marked in their names as partners; that charges against customers in their books were made in their names; that notes were given in their names with the consent of both parties; that judgment had been entered against them as partners without any plea; that collections were made by them as partners, and that they each took an interest in the business. A general holding out of themselves as part- ners is sufficient to raise a presumption of partnership. Poillon v. Secor, 61 N. Y. 456. See further on this sub- ject. Teller v. Patten, 20 How. 125 ; Bowen v. Rutherford, 60 Ill. 41; 14 Am. Rep. 25 ; , Hefner v. Palmer, 67 Ill. 161 ; Hinman o Littell, 23 Mich. 484 ; Montgomery v. Machine Works, 92 U. 8. 257; Bennett v. Holmes, 82 Ind. 108; Smith »v. Collins, 115 Mass. 388, 389. Letters writen by one member asking for credit for the firm is held suf- ficent to charge him. See Carmichael v. Greer, 55 Ga. 116. Any evidence tending to illustrate the issue and to show the partnership is admissible. Q. Is general reputation or rumor admissible to prove the partnership ? A. It is not, nor is the opinion or belief of a witness admissible. Q. After the partnership is proven, are the declarations of one partner admissible as against the other to show that a transaction was a partnership transaction ? A. They are. Q. Where a defendant sets up that one partner acted outside of his authority and beyond the scope of the part- nership business, on whom does the burden rest ? A. It is on the plaintiff to show either that the part- ner had express authority to do the thing or that his act was ratified. It is proper to show that the partner had full knowledge of the act of the co-partner and acqui- esced in it, or that he did not repudiate his act within a reasonable time. Where the act was clearly within the scope of the partnership business and not foreign to it, it can make no difference whether his co-partner had 296 LAW AND PRINCIPLES OF EVIDENCE. knowledge of it or not. The act may have been against his wishes and against his protest, but it will be binding on the partnership. Q. Are the admissions of one partner during the con- tinuance of the partnership business and relating to the partnership affairs admissible against all the other part- ners ? A. They are. Q. Ag to acts done by one partner after the dissolution of the partnership, on whom is the burden to show no- tice of dissolution where the dealing was with one who had sold to the partners before dissolution ? A. It is on the defendant to show either actual notice where the plaintiff had dealt with the partners, or con- structive notice by publication of the dissolution where the plaintiff had never had any dealings If it appear that the plaintiff had never had any knowledge of the partnership, no notice is necessary. Q Where plaintiffs sue as partners, is it necessary to prove the partnership ? A. It is not, unless it is necessary as part of their case to show the existence of the partnership, or where the partnership is denied Q. In an action to recover money paid to defendants use, on whom is the burden and what should the plain- tiff show ? A. The burden is on the plaintiff. ‘‘He must show his payment of money or its equivalent to the use of de- fendant, and an express or implied assent on the part of defendant to the making of the payment, which is ususually proved by either a previous request or a subse. quest promise to reimburse, or legal compulsion on plain tiff to pay what defendant ought to have paid, or other circumstances showing that he did not officiously vol- unteer, but was justified in making the payment with- out express assent and then the law is said to imply a request or promise.” Abb. Tr. Ev. § 349; Wright v. But- BURDEN OF PROOF. 297 ler, 6 Wend. 290; Moseley v. Boush, 4 Rand. 392. If the payment discharged a legal or moral obligation against the defendant, the action may be supported. Freeman v. Robinson, 20 Am. Rep. 399; Goulding v. Davidson, 26 N. Y. 604. Q. Is it not on this principle that one co-surety who voluntarily pays the debt, or is forced by legal process to pay, can recover from his co-surety his proportionate part ? A. Itis. So, where one pays for necessaries furnished to another’s wife, he may recover in this form of action. Q. Where the payment was illegal and defendant had a good defense against the claim, of which he might have availed himself but for the payment made by the plaintiff, and where there existed no legal or moral obli- gation on the part of the defendant to pay it, can the plaintiff recover ? A. He cannot. Q. What other proof ought the plaintiff to furnish ? A. The plaintiff should show the exact amount paid, when paid, and all the circumstances connected with the payment. He may also introduce parol evidence to show in what relation he stood to the defendant, and any fact going to show that the defendant was under a legal obli- gation to pay the debt. The defendant may show that plaintiff was primarily liable to pay, and that his own liability was secondary, or that the act of the plaintiff was officious. The burden is always on the plaintiff to make out a prima facze case. Q. In actions for money received by defendant to plaintiff’s use, on whom is the burden and what is it nec- essary that he should show ? A, The burden is on the plaintiff, and he should show the circumstances in which the money was received and that he is entitled ex equo et bono to receive the money. Whenever one has received money which in equity and good conscience he ought not to have, and which he ought to turn over to another enti- 38 298 Law AND PRINCIPLES OF KVIDENCE. tled in equity to receive, the action may be main- tained. The burden is on the plaintiff to show, by positive evidence, such a state of facts. If defendant sets up a state of facts in conflict with the right claimed by the plaintiff, after plaintiff has made a prima facie case, the burden is shifted. The action may be main- tained against a bank to recover money deposited. The plaintiff ought to show that the defendant has received money or its equivalent. The plaintiff may also show that the defendant was his agent, and as such agent re- ceived money from the customer of the principal. So, it is held that any profits made by an agent belong to his principal, and may be recovered in this form of action, on proof of the agency, and that the profits were made on the business of the principal. Q. Where a person purchases from another or accepts a gift from him towards whom he sustains a close confi- dential relation, and who, from his fiducial or confiden- tial relation, naturally and reasonably exercises a con- trolling influence over him, on whom does the burden rest to clear up all suspicion of overreaching, and to show that the transaction was fair and just ? A. The burden is on the purchaser, or one receiving the gift. Thus, a guardian or trustee of a minor, who accepts a gift or makes a purchase from his ward, soon after he attains majority, must show that no advantage was taken in consequence of his previous relation. Q. Ina plea by an administrator of plene administravit or plene administravit proeter, where issue is joined by the plaintiff, on whom is the burden ? A. It is on the plaintiff to show assets in the hands of the administrator subject to his claim. Q. In pleas of infancy, non compos mentis, drunken- ness which incapacitates for entering into a contract, dures per minas or duress of imprisonment, fraud or mistake, on whom is the burden ? A. The burden is on the defendant to establish the truth of his plea. BuRDEN OF PRoor. 299 Q. Where the law presumes an affirmative, on whom is the burden ? A. It rests on the party denying the facts to prove the negative ?. Q. In actions for libel, slander, qguare clausum fregit and the like class of actions, where the defendant sets up justification, who opens and concludes ? A. The defendant opens and concludes, because he as- sumes the onus proband:. Q. Where the law presumes a negative, on whom is the burden ? A. It rests on the party relying on the affirmative to prove it. Q. In a suit on a note or account where the defendant exhibits a receipt in settlement of the claim, on whom is the burden ? A. It is on the plaintiff to explain the receipt. Q. Generally, when is it necessary for a party to prove a negative ? A. Where the law presumes the affirmative, or when his right to recover or make good his defense depends on the proof of a negative, or where the burden is shifted to him by the proof of the affirmative. Q. Where a surety sets up his discharge in conse- quence of some act of the creditor to his prejudice, on whom is the burden ? A. It is on the surety to show how his rights have been prejudiced or his liability increased. So, in an action by one co-surety against the other surety for con- tribution, it is incumbent on the plaintiff to show he has paid the debt for which they were jointly liable and that the other sureties have failed to make good their part. Q. Ina plea of tender, on whom does the burden rest 2 A. It is on the defendant to show the time, place and amount tendered, and that it was such a tender as the law will recognize. It is his duty to show that it was a legal tender; that the exact amount was offered and that 800 LAW AND PRINCIPLES OF HVIDENCE. the creditor had nothing to.do but to accept it. The ten- der, in order to be available, should be unconditional unless the payment itself was to be made on certain con- ditions So, on a plea of payment, the dates and amounts of each payment should be set forth in the plea and proven; and when the defendant claims that he has already paid usury in sufficient amounts to extinguish the principal and legal interest, he should set forth the amounts of usury paid and when paid. Q. Is it indispensable that plaintiff should introduce all his proof in opening his case ? A. It is not. The burden should be clearly shifted to defendant. If the defendant introduces evidence, plain- tiff may recall the witnesses or introduce new ones to rebut. If the case be a close one on the facts, it isa safe rule for the plaintiff to make the strongest possible showing in opening. Q. How often may the burden be shifted during the progress of a trial ? A. It may be shifted by the plaintiff to the defendant in the opening. The defendant may shift it to the plaintiff in his reply; then back to the defendant by the plaintiff in his replication; then back to the plaintiff in the rejoinder; then back to the defendant in the sur- rejoinder ; then back to the plaintiff in the rebuttal. Beyond this the altercations do not proceed. In these different stages, it is sometimes difficult to determine on whom the burden rests. But when the altercations have closed, the jury, under the charge of the court, must determine on whom the burden last rested and render a verdict accordingly. Q. What is the object in allowing these several steps in the pleadings ? A. It is to narrow and simplify the issues, and thus, at the close, to enable the jury fairly to determine where the burden finally rested. Q. Does the verdict settle it ? BurRDEN oF PROOF. 801 A. It does; for if it be for the plaintiff, it amounts to saying that the burden was on the defendant and he failed to shift it; or, if it be for the defendant, it amounts to saying that the plaintiff either never shifted it to him or, if he did, the defendant shifted it back, and when the case closed the burden was still on the plaintiff. Q. Where an employee sues a railroad company for personal injuries resulting from defective machinery, on whom is the burden ? A. It is on the plaintiff to show the defects and that he did not know of such defects. If a stranger sue for personal injuries, he is only bound to show the damage, and the burden is on defendant. Q. Where the law requires certain written instru- ments to be attested and recorded, on whom is the bur- den to show the fact of record and attestation ? A. On the party offering the instrument in evidence. Q. Where a person is sued or prosecuted for doing a thing without a license, is the burden on the plaintiff to show the want of the license ? A. The courts differ on the question as to whether the plaintiff is bound to show the want of a license or the defendant to produce the license. The very great weight of authority is (and this seems more conformable to the general principles of evidence) that the plaintiff must prove the want of license in order to make out his case. In the following authorities it is held that the defendant ought to produce the license: Whart. Cr. Ev. (8th ed.) §§ 1499, 1530; State v. Lipscomb, 52 Mo. 32; Garland v. Lane, 46 N. H. 245; Bliss v. Brainerd, 41 id. 256; State uv. McGlynn, 34 id. 422; State v. Crowell, 25 Me. 174; Com. v. Curran, 119 Mass. 206; Com. v. Leo, 110 id. 414; State v. Evans, 5 Jones (N. C.), 250; State v. Richeson, 45 Mo. 575. Q. Where one sues for a tort committed on his person or property, on whom is the burden ? A. The burden is on him to prove the tort and to show his damages. 302 Law AND PRINCIPLES OF EVIDENCE. Q. Where facts are peculiarly in the knowledge of one party, on whom is the burden? A. In such case the burden is on the party who is ina position to know the facts. Thus, where one produces a witness whose opportunities for knowing the facts about which he testifies are limited, and fails to produce or ac- count for another witness who had every possible op- portunity to know the facts, it is but fair to presume ° that if the latter witness had been produced, his testi- mony would have been adverse. Powell Ev. § 298; Clements v. Moore, 6 Wall. 299 ; 1 Whart. Ev. § 367. Q. In a civil action what quantity of evidence is neces- sary to show the commission of a crime ? A. While there is conflict of authority on this question the weight of authority is that the crime need only be proven by a preponderance of evidence. Steph. Ev. § 141 ; Scott v. Ins. Co., 1 Dillon C. C. 105, 107; Welch v. Jugenheimer, 56 Iowa, 11; 41 Am. Rep. 76 ; Seybolt v. R. Co., 95 N. Y. 562 ; 47 Am. Rep. 75 ; 2 Whart. Ev. § 1246. The English rule is, that the crime must be proved beyond a reasonable doubt. Q. Wherever a breach of duty is imputed, on whom is the burden ? A. It is on the party alleging the breach ; for the law presumes that every one charged with a duty or trust will perform it or has performed it. Hence, all regularly constituted officials are presumed to have discharged their official obligations. Trustees, administrators and ex- ecutors are presumed to have acted in good faith, and to have faithfully administered the assets coming into their hands, and the burden is on the party alleging the con- trary to prove it. So, where abuse of discretion or bad faith is charged, the burden is on the party who charges it. All judicial proceedings are presumed to be correct. Q. Where the issue is on the life or death of a person, on whom is the burden of proof ? A. It is on the party alleging the death. After the lapse of a certain period, however, the law will presume BURDEN OF PROOF. 303 death, and the burden is on the party alleging that the person is still alive. Where the presumption of life in- volves a crime, the rule does not hold good. Thus, ona charge of bigamy the law will not presume that the first wife was living at the time of the second marriage, and the burden is on the prosecution to show it. Q. Where there are interlineations or other suspicious appearances on the face of a deed or other instrument, on whom is the burden to explain them ? A. “‘It is on the party offering the deed. Where the deed labors under any suspicion arising from any erasure or interlineation, it is a matter of prudence and discretion to prove it in the usual way, by means of an attesting witness, where they are not all dead, in order to rebut the unfavorable presumption arising from an inspection of the deed.” 1 Stark. Ev. § 330. Q. What is another general rule as to the burden of proof ? A. “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person.” Steph. Ev. § 144; Clements v. Moore, 6 Wall. 299, 315; R. Co. v. Bacon, 30 Ill. 347, 352; Price v. Jennings, 72 Ind. 113; 27 Am. Rep. 144 (note). Q. In actions for the value of goods sold and delivered, on whom is the burden, and what should be shown ? A. The burden is on the plaintiff to show that at the defendant’s special instance and request, he sold and delivered to him the goods mentioned in the complaint, and to show the price and that the same have not been paid for. Q. May not the sale be perfected by letter or telegraph ? A. It may. Where a proposition is made by the seller and accepted by the purchaser, either by letter or tele- gram, the sale is complete, and it is held that as soon as the purchaser mails his letter of acceptance or delivers 304 Law AND PRINCIPLES OF EVIDENCE. his dispatch to be sent to the seller, the sale is complete. All that it is necessary to show is, that the minds of the seller and buyer came together. The original telegram sent by the purchaser is admissible to show his assent. Where the price of the goods is fifty dollars, or more than that sum, in order to constitute a valid sale under the statute of frauds the agreement or some note or memo- randum thereof must be in writing, signed by the party to be charged, or his agent thereunto by him lawfully authorized, unless it be shown tbat there was part pay- ment or delivery of the goods in pursuance of the sale. Q. In written contracts of sale, when may parol evi- dence be introduced ? A. In Abbott Tr. Ev. the following exceptions are mentioned to the general rule excluding parol evidence to vary the terms of the instrument: 1. ‘‘ Where the action is not between the parties to the instrument, nor those claiming under and in privity with them. 2. Where the object of the evidence is to impeach the validity of the instrument or any part of it. 3. Where the object of the evidence is to establish a separate oral agreement constituting a condition precedent to the existence of an obligation claimed to arise on the instru- ment. 4. Where the object of the evidence is simply to show the surrounding circumstances of the parties, and of the subject of the contract, and the usages of language under which the instrument was written, in order to: enable the court to read the instrument with the same knowledge with which the parties wrote it. 5. Where the language of the instrument leaves its meaning doubtful, or extrinsic facts in evidence raise a doubt in respect to its application. 6. Where it appears that the instrument was not intended to be a complete and final statement of the whole transaction, and the object of the evidence is simply to establish a separate oral agreement ona matter as to which the instrument is silent, and which is not contrary to its terms nor to their legal effect. 7 Where the object of the evidence is to show BurpDEN OF PROOF. 305 a usage legally affecting the parties, by which incidents not expressly mentioned in such contracts are annexed to or implied in them, if the usage be not repugnant either to the express terms or the legal effect of the contract. 8. To show, if the contract be unsealed, that it was made for the benefit and on behalf of the party suing or sued upon it, even though he be not named init; or, if it be sealed, that it was so made, and has been duly ratified by such party. 9. To show that the date was erroneous. 10. To show that the consideration was different from that stated, or that it was not paid, though payment was acknowledged. 11. To show that a transfer absolute on its face was given as security or in trust. 12. To show the mistake which caused the repugnance to appear on the face of the instrument. 13. Where the object of the evidence is to show a separate subsequent valid agree- ment to rescind, modify, extend or waive the contract or a provision of it.” Q. Where the contract of sale was made with an agent of defendant, what must be shown ? A. The agency must be shown, and that he apparently acted within the scope of his agency. If the agent acted for an undisclosed principal, on its discovery plain- tiff may proceed against one or either. Where, with full knowledge of the agency, he chooses to give credit to the agent he is bound by his election. Q. Where there is a breach of warranty, either as to quality or quantity of goods, on whom is the burden ? A. It is on the plaintiff. He may sue either on a breach of warranty or for deceit. In the latter case scienter should be alleged and proved. Defect in quality or deficiency in quantity should also be shown. The warranty may be either express or implied. Q. Where a negotiable or other instrument is sued on, on whom is the burden,'and what should be shown ? A. The burden is on the plaintiff. He should always produce the instrument or account for its loss, and where proof of attestation is required he should be prepared to 39 306 Law AND PRINCIPLES OF HVIDENCE. show by the witnesses the due execution of the paper. Where presentment, notice and demand are required, as in cases of bills of exchange, these facts should be shown. This done, the burden is shifted to the defend- ant. It is not held necessary to set forth the loss of the instrument. On proof of its execution and loss, second: ary evidence of its contents will be received. As hereto- fore seen, unless the execution of the paper is admitted the attesting witnesses must be called. In the case of negotiable paper, mere possession of the paper is suffici- ent evidence of title, and there is no burden on the plaintiff to show it. Q. Where the paper has been altered, on whom is the burden to explain the alteration ? : A. It is on the plaintiff. It is held to be a matter for the court to determine whether the alteration is so material as to exclude the paper without explanation. Q. Where the indorsee of a note or bill sets up that he is not bound by the equities of previous parties, on whom is the burden, and what must be shown ? A. The burden is on him, and he should show that he took the note before maturity; that he took it bona fide and without notice of the equities between the original parties; that a consideration was paid, and that he received the paper in the ordinary course of business, and that there were no facts to put him on notice of the equities between antecedent parties. CHAPTER VIII. ESTOPPEL. Q. On what principle is the law of estoppel founded ? A. The law of estoppel is said to be founded on the strong moral obligation of every member of society, not only to speak truthfully, but so to act as not to mislead another to his injury. It is also the policy of the law to encourage fair dealing and that mutual confidence with- out which there would be an end to commercial prosper- ity. Noone ought to be permitted to influence another to act on his representations as to the existence or non- existence of facts and then deny the truth of such rep- resentations when redress is sought by the injured per- son. He who will not speak when he ought to speak, ought not to be allowed to speak when he would, and he who utters an untruth and misleads another to his injury ought not to be permitted to speak the truth in order to escape the consequences of the falsehood, if, by so doing, the person who has been misled is to fail of redress. The equity of the person misled is superior to that of the person willfully misleading him. It often happens that the estoppel may be successfully pleaded although it operates to exclude the truth. Q. Asa general rule, on whom are estoppels binding ? A. They bind the parties themselves, their privies in law, in blood and in estate. Q. How are estoppels usually divided ? A. There are estoppels by matter of record, as where a record is produced showing a solemn judicial proceed- ing, in which the party against whom the estoppel is plead was a party, plaintiff or defendant. In such case he is estopped from denying the binding force and effect of the record and will not be permitted to go behind the judgment of the court. He is also estopped by his sol- emn admissions tn judicio. A judgment, for instance, 307 308 Law AND PRINCIPLES OF EVIDENCE. operates as an estoppel and binds the parties and their privies. Where one desires to avail himself of an es- toppel, however, it is his duty to plead it. See Taylor Ev. § 91; 2 Smith’s Lead. Cas. 670, 674, 683 and 656-726 (note). ‘“Where one person,” says Sir J. Stephens, ‘‘by any- thing which he does or says or abstains from saying or doing, intentionally causes or permits another person to believe a thing to be true, and to act on such belief other- wisc than for that belief he would have acted, neither the person just mentioned nor his representative in in- terest is allowed, in any suit or proceeding between him- self and such person or his representative in interest, to deny the truth of that thing. Where any person under a legal duty to another to conduct himself with reasonable caution in the transaction of any business, neglects that duty and when the person to whom the duty is owing alters his position for the worse because he is misled as to the conduct of the negligent person by a fraud, which neglect is in the natural course of things the proximate cause. the negligent person is not permitted to deny that he acted in the manner in which the other person was led by such fraud to believe him to act.” Q. What is an example of an estoppel by matter in pars ? A. Where one pays rent to another he is estopped from afterwards denying the relation of landlord and tenant. Again, if one person hold another out as an agent and thereby induces a third person to contract with him as such he will be estopped from denying that he is the principal. So, where one enters into a contract on in- formation given by a third person to whom he has been referred by the other contracting parties, the latter will be estopped from contesting the truth of the information. It is generally held that estoppels by matter 7m pais may be taken advantage of without pleading. Q. What is an estoppel by deed ? A. A deed being a solemn instrument under seal, where the same has been solemnly executed and the maker was EsroPpPEn. : 809 not fraudulently induced to sign it, and the execution was free and voluntary, it is binding on him and he will be estopped from denying it. He will be bound by every essential averment. In mere matters of description, however, such as the date of the deed, the description of the land, its quantity and quality, the party is not es- topped from contradicting it. Nor will the maker be es- topped from showing a different consideration from that expressed in the deed, nor from showing that the deed is without consideration. Q. Are estoppels generally favored by the courts ? A. They are not. Courts incline to a very liberal pol- icy in the admission of evidence, and will not, except for the most cogent reasons, or when prohibited by positive law, limit the investigations of litigated questions. Where, however, it would be a fraud on the rights of one party to allow the other to contradict his own repre- sentations made out of court, and which induced the other to act, or where it is sought to contradict or im- peach a solemn record, the principle of estoppel may be successfully invoked. Q. Must not an estoppel be mutual ? A. It must. Estoppels bind both parties and their privies as previously indicated; but a stranger is not bound by an estoppel. For example, while a person who has paid rents regularly to his landlord will be estopped from denying that he is a tenant and will not be entitled to set up title in himself, a stranger is not estopped from show- ing that he was not a tenant and that the title was not in the landlord. Q. Why should a record operate as an estoppel ? A. A record is said to import absolute verity, and to permit parties affected by it to contradict or impeach it, at pleasure, would render fickle and uncertain the most sacred repositories of human rights. Where there is a plea of nuwltzel record the issue formed on such plea must be tried by the record itself. Where the record is coram 310 ' Law anp PrincrpLes oF EVIDENCE. non judice it does not work an estoppel. The court must have jurisdiction of the person and subject-matter. Q. What is the rule as to to the conclusiveness of judg- ments zn rem and in personam? A. The final adjudication of the issue or issues between the parties by a court of competent jurisdiction is con- clusive, and the judgment may be pleaded in any court where the same issues are brought in question between the parties. Q. Is a judgment conclusive on any one except the parties to the record and their privies ? A. Itis not. It would be highly unjust to conclude a stranger by a record which, in sense reflects what he has said or done, and where he has had no opportunity to examine or cross-examine the witnesses on whose tes- timony the judgment or decree was rendered. Privies should be bound for the very simple reason that those under whom they claim are bound, and they should be in no better standing than those from whom they de- rive all their rights. Whatever estops one should estop the other. The heir-at-law and administrator are bound by a judgment against the intestate. A judgment against a grantor or lessor will bind the grantee and lessee. ‘ Q. Where a plea of res adjudicata is set up, what should be shown to make it available ? A. It must be substantially between the same parties or their privies and it must appear that the same issue or issues have been judicially determined by a court of com- petent jurisdiction. If any one of the issues on the sub- sequent trial has been previously decided, as to that issue, the plea will be sustained. Q. Where one relies on an estoppel, what must be shown 4 A. It is incumbent on him clearly to establish all the facts necessary to work an estoppel. Q. Are not estoppels by deed limited to actions brought ESTOPPEL. 311 ‘on the deed or growing out of the transaction in which it was executed ¢ A. They are. Estoppels do not extend to collateral actions. Q. Where the truth of the whole transaction appears on the face of the record itself, is there any estoppel ? A. There is not. If on the face of the instrument it appears for example, that it was made subject to a mort- gage, it is not an estoppel as to the mortgage. Q. Does the principle of estoppel apply where the party against. whom it is invoked was not sui juris at the time of the transaction ? A. It does not. Q. Where the recitals in a deed are of such a character as to lead one to act on them and to assume a position which he cannot abandon without injury to himself, will the maker be bound by ube recitals d A. He will. Q. Where one executes a deed to land to which he has no title, but. subsequently acquires title, will he be es- topped from setting up such title as against the grantor ? A. He will, His acquisition of title inures to the benefit of the grantor. This is especially true where the grantor warrants ‘the title. It has been held by high authority that where the words of the grant are general and there is no ‘warranty, that a subsequently acquired title may be set up against the previous grant; but the weight of authority favors the view given above. So, it is gen- erally held that where a mortgagor conveys with war- ranty and afterwards obtains a conveyance from the mortgagee his interest passes to the grantee. Q.. What does the covenant ‘of warranty generally in- clude ? ae . A. Of seizin ‘in the eal quiet enjoyment, and that the grantor has a perfect title and will protect the grantee against the claims of all other persons as well as 312 Law AND PRINCIPLES OF EVIDENCE. against the claims of the grantor and his heirs and legal representatives. Q. May one be estopped as well by matter in pais as by matter of record ? A. He may. The rule is, that ‘‘ where an act or state- ment cannot be withdrawn without a breach of faith on the one hand and injury on the other, it will rise from the rank of evidence to that of estoppel, and bind the jury in opposition to the clearest proof.” Duchess of Kingston’s case, Smith’s Lead. Cas. 859. ‘‘There must be an admission intended to influence the conduct of an- other with whom the party is dealing, and actually lead- ing him into a line of conduct which must be prejudicial to his interest, unless the party estopped be cut off from the power of retraction.” See Bigelow Estoppel, dn pais ; Chapman v. Shepard, 39 Conn. 419; Luter v. Rose, 20 Tex. 639; Studdard v. Lemmond, 48 Ga. 100; Johnson v. Johnson, 52 id. 449; Wickersham v. Alton, 77 Ill. 610; Kennedy v. Mackey, 85 id. 96; Alexander v. Ellison, 79 Ky. 148; Hinchley v. Greany, 118 Mass. 595; Sweaney v. Mallory, 62 Mo. 485. Q. Where both parties are at fault, and their means and opportunities for knowing the truth are equal, will an estoppel arise ? A. It will not, for unless one relies on the representa- tions of the other, to his injury, the estoppel does not work. It is held that it is not enough that one party knew his statements were untrue. It should appear that he believed that what he said would influence, and that it did influence the conduct of the other. The wrong must be coupled with an injury. McCall v. Pcwell, 64 Ala. 254; Ins. Co. v. McKnight, 97 Ill. 80; Straus v. Min- zesheimer, 78 id. 492; Alexander v. University, 57 Ind. 488; Stringer v. Ins. Co. 82 id. 100; Ins. Co. v. Norris, 31 N. J. Eq. 583; Watson v. Hewitt, 45 Tex. 472. An estoppel should not work a gain, but prevent a loss (Smith’s Lead. Cas. 863), ‘Cand where one can be put back into his former condi- tion, or if pecuniary damages are adequate an estoppel ESrorreE.. 313 will not be allowed.” Id. ‘‘It is, moreover, necessary that the connection between the wrong and the injury should be direct and apparent, and such as to leave no reasonable doubt that the former is the efficient cause of the latter.” Id. The loss must be the direct and uatural cause of the wrong. No one is bound by his answer to any foolish or impertinent question. There must bea duty on him to speak, and to speak the truth. The per- son seeking the information must have a right to make inquiry, and there must be a duty on the part of the other to answer it. The misrepresentation must be will- ful and intended to mislead, before it will work an equit- able estoppel. Strangers cannot take advantage of the representations and invoke the principle of estoppel. Q. Where an instrument is void for fraud or for any other reason, do its recitals estop ? A. They do not. Recitals in deeds are conclusive when the deed itself is the foundation of the action. Where one accepts from another a deed in fee simple to land, he will be estopped in an action subsequently brought against him by the grantor, from denying the title of the grantor. It is also held that where plaintiff and defend- ant, in an action of ejectment, claim title from a common grantor, neither of them can set up a title in conflict with it. Where their deeds are of different dates, the maxim prior in tempore potior est in jure, applies. Where in an action on a breach of warranty it appears that the war- rantor had previously warranted the title to another, he will be estopped from setting up that the first title is not paramount. And where land is sold at a judicial sale subject to a certain mortgage lien or other incumbrance, the purchaser and all persons holding under him are es- topped from denying the incumbrance. Q. Where an estoppel by judgment is relied on, what should be shown ? A. The judgment should be proved, and where it does not appear from the transcript that at the trial the facts shown by the record relied on were admitted, or that the 40 314 Law AND PRINCIPLES oF EVIDENCE. court took judicial notice of the records, the introduction in evidence of certain depositions used on the trial of an- other ejectment case, between the same parties, involv- ing the same title, but not the same land, is not proof of the judgment.” McCormick v. Herndon, 31 N. W. Rep. 3038. Q. What is usually considered as a fair test as to whether an estoppel 7m pazs should operate ? A. Was the party who sets it up misled by the acts or words of the other, and did he have the right to rely on them? If he were misled to his injury and had the right to rely on them, the other is bound by the estoppel. Wherever it would beafraud on the opposite party to allow another to contradict what he has said or impeach what he has done, estoppel will operate. For example, where one having a mortgage on property represents to another that the mortgage has been paid off, and the other rely- ing on such representation, buys the property mortgaged, the mortgagee is estopped from asserting his lien; but a bona fide assignee of the mortgage, where the assignment was made before the declaration, would not be estopped. R. Co. v. Smith, 3 S. E. Rep. 397. So, where one party to a contract knows that another puts a certain construc- tion on its terms, and acquiesces, by his silence, in such construction, he is estopped from setting up a different construction. Flint v. Johnson, 9 Atl. Rep. 364. So, where the owner of property stands by and sees another contract for the purchase of property or for creating an incumbrance on it, in circumstances. which require him to speak, and remains silent, he will be afterwards estopped from asserting title, as against the person mis- led by his conduct. So, where the owner of property stands by and sees another make valuable improvements on it, knowing that he relies on his own title, he will be estopped from asserting title as against the value of the improvements. An estoppel, however, does not operate where one is under no obligation, moral, legal or equita- ble, to speak out. Where one suffers judgment to go EisTorPe.. 815 against him, and before and after judgment admits the debt, and after levy admits the justice of the claim to the levying officer and aids in furthering the sale and stands by and sees the property sold, he will be estopped as against an innocent purchaser from setting up title, although the officer had no right to sell. Reichert v. Voss, 28. E. Rep. (Ga.) 558. Q. What is necessary to constitute an equitable es- toppel ? A. It should be made clearly to appear to the adjucat- ing tribunal that the person against whom the estoppel is to operate has made statements or performed certain acts calculated to deceive, and which did deceive the other party who acted on them, and that it will be a fraud to permit him to deny the words and acts. Q. Where the person against whom an estoppel is pleaded was not sue jurzs, or from any cause was inca- pacitated to contract, will the estoppel operate ? A. It will not. Q. Where one signs a note as security on the bond of another, and delivers the note or other obligation to the obligor, will he be estopped from setting up that he did not authorize the delivery to the payee or obligee ? A. He will. Q. As a general rule, what should be set up in a plea in bar on the ground of estoppel ? A. It should be clearly set forth what facts were con- cealed or misrepresented by the party, and in what way the other party was misled to his injury. Q. Where one accepts a deed which is absolute on its face, but with the distinct understanding that he is to hold the land for certain purposes, and afterwards, when the trust has been fully executed, to reconvey the land, may he set up an outstanding title in himself subse- quently acquired ? A. He is estopped from so doing, and must reconvey. Q. Where an administrator of an estate obtains leave 316 Law AND PRINCIPLES OF EVIDENCE. to sell the lands of his intestate, is he estopped from afterwards setting up that the land belonged to some one vlse ? A. Heis. So, where one has a claim against another, and instead of making a note for the amount payable to himself, has it made to a third person in order to defeat his creditors, he is bound by the transaction. So, where one conveys land to another in order to delay, hinder and defraud his creditors, he will be estopped from setting up claim to the land. Both parties being guilty of collusion, the courts will leave them where it finds them. Q. Where one makes certain representations to obtain credit as to his ownership of property, will he be es- topped from denying that he owns it? A. He will. So, where the bailee of goods represented that he had the title to the goods, and on the strength of such representations obtained credit, he will be estopped from denying that title is in him. Representations to amount to an estoppel must be made either with the intent to deceive and which do deceive or with such cul- pable negligence as to amount to constructive fraud. Q. Where heirs at law consent to the sale of land under an execution against their ancestor, and with full knowl- edge of the facts distribute the proceeds of the sale, after payment of the judgment among themselves, will they be estopped from setting up that the sale was void? A. They will. So, where one attests a deed to land and stands by and sees valuable improvements put on it, he is estopped from asserting an older adverse title. R. Co. v. Strickland, 6 S. E. Rep. 27. And so, where one stands by and sees another sell land, who claims author- ity to sell, and does not deny the authority, he is es- topped from claiming it as against an innocent purchaser. “Tt is a general rule of law that where a person sees another conveying property which belongs to himself instead of the person conveying. and makes no dissent, when he should dissent, he is estopped from making a claim.” ESTOPPEL. 317 Q. Where a mortgagor informs one who is about to take an assignment of the mortgage that the mortgage is all right and that he has no defense to it, does such representation work an estoppel ? A. It does. Hedden’s Appeal, 17 Atl. Rep. 29; Grady v. People, 125 Ill. 122; Skinner v. Lucas, 68 Mich. 424. So, when a mortgagor warrants title and that he is seized of the premises, he is estopped from setting up a pre- vious equitable incumbrance to himself. Calkins v. Carriage Co., 27 Fed. Rep. 296; Ward »v. Dougherty, 75 Cal. 240; McInnis v. Pickett, 65 Miss. 354. Q. Where one sells goods to another and stipulates in a receipt that, on compliance with certain conditions, title is to pass to him, and a third person advances the purchaser money to enable him to perform the condi- tions, on the strength of the receipt, is he estopped from setting up a lien for the purchase money in conflict with the receipt ? A. Heis. Q. Where a party accepts the fruits of a judgment which is void for want of jurisdiction, is he estopped from impeaching the judgment ? A. He is. Q. What is the general rule when one executes a deed to another with warranty of title. A. The rule is that he may not afterwards assert title to the land as against the rights of the grantee under the deed. Q. Where one executes a mortgage to another on a stock of goods and describes the goods as being in a cer- tain storehouse, is he estopped from denying the fact set forth in the mortgage ? A. Heis. Marable v. Mayer, 78 Ga. 60; Carothers v. Alexander, 74 Tex. 309; Tuttle v. La Dow, 54 Hun, 149; Crawford v. Osmun, 70 Mich. 561. Q. Where an estoppel is set up cn account of the con- duct of the parties, what must be shown ? 318 Law AND PRINCIPLES OF EVIDENCE. A. Where there is no relation of trust or contractual relation between the parties, it is of the essence of an estoppel zn pais that the party against whom it is set up should have had knowledge of the facts at the time of the conduct by which it is claimed that he is estopped. Dickenson v. Breeden, 30 Jll. App. 310. Q. Suppose one person, for the purpose of enabling another to execute a mortgage and borrow money on it, makes him a deed to land or a bill of sale to other prop- erty on which he does borrow money, as against the claim for the borrowed money, will not the seller be estopped from setting up a claim for purchase money ? A. He will, as against persons who took without notice. Q. Where a judgment creditor induces another to buy of the debtor and promises never to enforce his judg- ment against that land, will he not afterwards be estopped 2 A. He will; and so, when a person holding a mort- gage on land or other property induces another person to buy the property on a promise not to enforce his mortgage, he will be estopped. Where one acts on the disclaimer of another of any interest in property, and it was intended that he should so act, it works an es- toppel. Q. Where words are spoken and representations are made to a third person, and not in the presence and hearing of the person claiming the estoppel, and where there is no reason to suppose that the representations will be communicated to him, will it work an estoppel ? A. It will not. Q. While judgments are binding, as a rule, on par- ties and privies, are they admissible, against strangers and for them, simply as evidence of their own existence ? A. They are, as when they constitute parts of a reg- ular chain of title, and where they are introduced to show the title of an executor or administrator. Estopre.. 319 Q. What is a general rule as to the conclusiveness of judgments ? A. “Every judgment by a court having jurisdiction is conclusive, between parties and privies as to such facts in issue, on which the judgment on its face is conditioned, as were actually decided by the court, unless it should appear that evidence was admitted or rejected, in the suit where the judgment was entered, which evidence would have been excluded in the suit where the judg- ment is offered, or unless for some other reason, the proofs in the two suits are necessarily different. It is essential to the admissibility of the judgment in such case, that it should have been between the parties or their privies to the suit in which it is offered ; that it should have been on the merits, and that it should have been on a claim actually before the court, or which the party pre- sented in the pleadings.” 1 Whart. Ev.§ 758, subdivis- ion 5, and authorities as follows: Anderson v. Gregory, 43 Conn. 61; Supples v. Cannon, 44 id. 424; Cannon v. Brame, 45 Ala. 262; Murrill v. Smith, 51 id. 301; Maple v. Beach, 43 Ind. 51; Shelbina v. Parker, 58 Mo. 327; Megerle v. Ashe, 33 Cal. 74; Harvey v. Ward, 49 id. 124; Ferguson v. Etter, 21 Ark. 160. ‘‘ Where the parties and the cause of action are the same, the prima facie presumption is that the questions presented for de- cision were the same, unless it appears that the merits of the controversy were not involved in the issue; the rule in such case being, that where every objection urged in the second trial was open to the party, within the legitimate scope of the pleadings in the first suit, and might have been presented at that trial, the matter must be considered as having passed zn rem judicatum, and the former judgment in such a case is conclusive between the parties. Q. Who are considered parties ? A. All persons having an interest in the subject-matter of the litigation who have been duly notified, and have had their day in court, or had an opportunity to appear 320 Law AND PrincipLes oF EVIDENCE. and defend or prosecute. The question in every case is, did the party sought to be bound by the judgment appear in court, or was he regularly summoned to appear. If he were, his own laches will not excuse him, and he will be conclusively bound by the judgment. A judgment may be pleaded as an estoppel, or where it has not been pleaded, may be introduced to prove the existence or non- existence of a fact. Q. In the case of principal and surety, where the surety has had no legal notice or summons to appear, is he concluded by the judgment against his principal ? A. He is not ; except in cases where the principal may be considered the agent of the surety. Nor does a judg- ment against an executor bind the heir. Q. In order for a judgment to operate as a bar, must it be rendered on the merits ? A. It must. A judgment on a nonsuit not involving the real merits is not a bar; nor where a suitis dismissed for mere defects in the pleadings. Whitley v. State, 38 Ga. 50: Waller v. State, 40 Ala. 325; Wells v. Moore, 49: Mo. 229 ; Shelbina v. Parker, 59 id. 327. A judgment is no bar which is impotent by reason of mistake in the name of a party, or because the suit was brought too soon, or because the declaration did not state the juris- dictional facts on which the right of the court to enter- tain the suit was brought. So a judgment on a pre- liminary issue is no impediment to bringing a new suit on the merits, though it concludes the parties as to the special matters determined in the preliminary issue. So: a judgment on demurrer, based on formal defects, is no bar to a suit on an amended complaint, correctly setting forth the cause of action. It is otherwise as to a demur- rer on the merits, disposing of the whole cause of action. If judgment is rendered for defendant on demurrer to the declaration or to a material pleading in chief, the plaintiff can never after maintain against the same de- fendant or his privies, any similar action for the same grounds as were disclosed in the first declaration. Where, ESTOPPEL. 321 however, the plaintiff fails on a demurrer to his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right.’? 1 Whart. Ev. § 782; Krapp v. Eldridge, 33 Kans. 106; Atkins v. Anderson, 63 Iowa, 739; Dixon v. Ladek, 59 Tex. 529; Terry v. Hammonds, 47 Cal. 32 ; Nispel v. Laparles, 74 Ill. 306 ; Woolley v. Banks, 81 Ky. 527; Johnson v. Pate, 90 N. C. 334; Wilson v. Ray, 24 Ind. 156; Los Angelos v. Mellus, 59 Cal. 444; Gray 2. Hodge, 50 Ga. 262. Q. Where one is sued on a claim and pleads payment, set off or recoupment, and fails to prove the same, is he estopped from afterwards suing the plaintiff, and recov- ering the payments, or the amount of the set off or re- coupment ? A. He is; but a mere omission to set up a claim against the plaintiff will not bar the defendant from sub- sequently bringing an action. The question always is, was the claim of the defendant adjudicated in the former action. If it were, he is concluded and estopped from bringing it forward in another form. Another rule is, that judgments are not conclusive as to questions collaterally drawn in question, and which were not directly involved in the litigation. Q. Where a judgment is rendered in one state against a person resident in another, is it conclusive ? A. Where suit is brought on a foreign judgment the defendant may plead either that he was never served, or that the court which rendered the judgment had no jurisdiction of the person or subject-matter. He is not estopped from showing any fact which renders the judgments of a sister state a nullity. The merits of the case on which the judgment was rendered cannot be reopened, for “full faith and credit” must be given to the judicial proceedings of the courts of sister states; but this does not estop him from showing that the judg- 41 822 Law AND PRINCIPLES OF EVIDENCE. ment was coram non judice. Although the transcript of the record may show all the jurisdictional facts, it is generally held that the defendant may introduce evi- dence to contradict it and show the absence of the same. Story on Const. § 13807; Story on Conflict of Laws, § 609. Q. Where a judgment has been obtained by fraud, does it work an estoppel ? A. lt does not Fraud vitiates all contracts, however solemnly executed, and the most solemn judgments of courts may be assailed and impeached where it can be made clearly to appear that they are fraudulent. Q. Are the tribunals of this country bound to enforce the judgments of a foreign court ? A. The following note taken from the Duchess of Kingston’s case, 2 Smith’s Lead. Cas. 686, sets forth the doctrine on the subject: ‘‘ Now, upon one side, it is said that the tribunals of this country are not bound to enforce the judgments of a foreign court; that where they do so it is de gratia, and from a wish to extend the limits of justice, ampliare justitcam. But that it would be to amplify injustice were they to enforce a sentence which ought never to have been pronounced, because against the party against whom right was. On the other side, it is assumed with great force that invariable experience shows that facts can never be so well inquired into as on the spot where they arose, laws never administered so satisfactorily as in the tribunals of the country governed by them; that if our courts were to allow matters judicially decided upon to be again opened at any distance of time or place the conse- quences would be, in ninety-nine cases out of a hundred, that they would be deceived by the concoction of testi- mony, or by the abstraction of it, or by the want of it, and that injustice and mistakes instead of being amended would be generated.” Q. Are judgments rendered in a sister state conclusive evidence of a debt ? EstTopPpPet. 323 A. They are, and when sued on, a plea of nil debet is not proper, but the defendant may either set up nul tiel record, or that the foreign court had no juris- diction of the person or subject-matter. Jurisdiction, where the judgment was rendered by a court of record of a sister state will always be presumed, and the burden is on defendant to show the want of it. Q. Referring again to the subject of deed, is a grantor estopped from showing a consideration different from the one expressed in the face of the deed ? A. Heisnot. Where, however, an innocent purchaser, without notice, relies on the consideration expressed in making the purchase, the grantor will be estopped from showing no consideration or a different consideration. The grantor will also be estopped from denying that his deed conveys what, on its face, it purports to convey. Q. Where the grantor dedicates land in a city fora street to which he has no title, but afterwards acquires a title, does it inure to the benefit of the public ? A. It does. Q. Where one enters into possession of land under a, contract of purchase, and subsequently acquires an out- standing title, will he be estopped from asserting it against his grantor ? ‘A. He will. Frink v. Thomas, 25 Pac. Rep. 717. Q. Where both plaintiff and defendant claim title from a common grantor, can either of them call in question a link in the chain of their common grantor 4 A. They may not, for they will not be permitted to impeach the common source of title. Q. Where a party in one suit makes an admission, is such admission conclusive on him in another suit involv- ing different issues ? A. It is not. Q. As a general rule, is a purchaser estopped by the acts of his grantor of which he had no actual or con- structive notice at the time of the purchase ? A. He is not. 324 Law AND PRINCIPLES OF EVIDENCE. Q. Where a debtor combines and confederates with certain of his creditors to defeat other creditors, and by reason of his and their representations as to his solvency, the other creditors are induced to furnish other goods and extend the time of payment, will they be estopped from asserting the lien of a mortgage taken by them after such other goods were furnished as against the un- secured creditors so furnishing them ? A. They will, and would be liable in an action for damages at the suit of the defrauded creditors. Q. Where a husband buys land with the wife’s money and takes title in his own name, and another sells goods to him with knowledge of the transaction, will the wife be estopped from setting up title to the land as against such claim of the creditor ? A. She will not, but it would be otherwise where the wife colluded with the husband and the goods were sold on the idea and for the reason that title appeared to be in the husband. So, also, the wife would be estopped from denying the authority of the husband to have im- provements made on theland where title was apparently in him, though not in him, if she stands by and acquiesces in the improvements and receives the benefit of the same. If the wife permits the husband so to use her property as to perpetrate a fraud on an innocent purchaser or creditor, she will be estopped from asserting her title as against the claim of the person defrauded. If, however, persons dealing with the husband had notice of or reason- able ground to suppose that the wife had the legal or equitable title, she will not be estopped. Q. Where demand is made on a person for goods claimed to be in his possession, and he admits the posses- sion but refuses to give them up, will he be permitted to deny the possession at such time when an action of trover has been brought to recover them ? A. He will not. Q. Where one person induces another to buy property on a representation that there are no liens or incum- ESToPPEL. 325 brances on it, and afterwards buys a mortgage which existed at the time of the purchase, will he be estopped from asserting the lien of the mortgage as against the right of such purchaser ? A. He will. Q. In such cases is it not the duty of the purchaser to look to the records himself in order to ascertain the facts ? A. It is. Q. Where acts and words are, in the very nature of such a character as to mislead, will not a person be pre- sumed to have intended the reasonable and probable con- sequences of his words and acts ? A. He will. Preston v. Mann, 25 Conn. 118; Simons v. Steele, 36 N. H. 73; Hendricks v. Kelly, 64 Ala. 388; Tiffany v. Anderson, 55 Jowa, 405; Peake v. Thomas, 39 Mich. 584; Beebe v. Wilkinson, 30 Minn. 548; Harrison v. Boring, 44 Tex. 256, cited Smith’s Lead. Cas., Duchess of Kingston’s case, § 865. Where language is used it is to be interpreted according to the fair legal import of the terms employed, and a party will not be heard to say that he intended one thing when the words he uses con- tradicts him. Id. Q. Where the very nature of the representations or communications, and the circumstances in which they were made, are of such a character that it may be fairly and reasonably inferred that it was intended that they should influence and affect all the members of a com- munity, or certain members of a community, may not any one so influenced and misled set up an estoppel, although the representations were not made directly to him ? A. He may. Thus it has been held that insurance companies and other companies advertising their business will be held bound by their representations, where it can be shown that persons have acted on them. Where an insurance company ‘“‘issued a prospectus representing 326 LAW AND PRINCIPLES oF EVIDENCE. that all policies issued by them should be indisputable, except on the ground of fraud, that was holding out to all the world that they would require no proof of the matter stated in the proposal, but could only dispute the claim on the ground of fraud.” ‘‘A man cannot take advantage of a representation made by others and not designed to reach or influence him, but a representa- tion made publicly, through the press to all the world, is, in effect, made to every one interested in the sub- ject-matter to which it relates, and the party should be held to the same measure of accountability asif he had spoken or written to the persons whom he wished to de- ceive.” Smith’s Lead. Cas. 868 (note). Q. Where one about to buy a note or take the assign- ment of a mortgage makes inquiry of the maker or mortgagor, and is informed that the claim is all right and will be paid, and relying on such assurance the person buys, is the maker estopped from afterwards contesting the claim ? A. He is, unless he clearly makes it.appear that he was laboring under a mistake as to the true state of his ac- count with the holder, and had no intention to mislead. Q. May an estoppel be invoked where the result would be to perpetrate a fraud ? A. It may not. The object of an estoppel is to prevent fraud. Q. Where a minor receives the proceeds of a void sale, will he be estopped from setting up a claim to the prop- erty until the amount is refunded on his attaining majority ? A. He will. Q. Will a wife be estopped from setting up the fraudu- lent disposition of her property by the husband, unless she participated in the fraud ? A. She will not. It is only where she voluntarily co- operates with him and permits him so to use her prop- erty as to defraud others, that an estoppel operates ESTOPPEL. 327 against her. Drake v. Glover, 30 Ala. 382; Early v. Rolfe, 95 Penn. St. 58. Q. Where a corporation has held itself out as possessing corporate powers, and others have dealt with it as a cor- . poration on the strength of such representations, will it be estopped from denying its corporate existence ? A. It will, and as estoppels are reciprocal, it has been held that the party is estopped from denying the corpora- tion. See following authorities cited in Smith’s Lead. Cas. 877: Bank v. Dunkin, 54 Ala. 471; Lehman v. Warner, 61 id. 455; Central Assn. v. Ins. Co., 70 id. 120; Helena v. Turner, 36 Ark. 577; Baker v. Neff, 73 Ind. 68; Ransom 0. Lodge, 51 id. 60; Beatty v. Society, 76 id. 91; Jones ». Assn, 77 id. 840; Smelser v. Turnpike Co., 82 id. 417; Ins. Co. v. Needles, 52 Mo. 17; Ins. Co. » Bowman, 60 id. 252; St. Louis v. Shields, 62 id. 247; Rector v. Crawford, 48 N. Y. 478; Whitney v. Robinson, 53 Wis. 309; Chambers ». Faulkner, 65 Ala. 448. Q. Where an equitable estoppel can be successfully in- voked, is it binding on subsequent purchasers with notice ? A. It is. Q. What is the well-established rule in equity where one of two innocent persons must suffer ? A. It is that the one should suffer who has put it in the power of another to perpetrate a fraud. There may have been no intention to defraud, yet if he enabled another to defraud, he must suffer instead of the party de- frauded. Q. Where one having no title to property makes a sale in the presence of the true owner in circumstances which require the owner to speak out, or when the owner, knowing of such sale, ratifies it expressly or by acquiescence, will he afterwards be estopped from assert- ing title ? A. He will. Wherever the purchaser is misled to his injury by the acts or words of the true owner, and his 328 Law AND PRINCIPLES oF EVIDENCE. intention was to mislead, he is estopped from repudiat- ing the act of the seller. Accordingly, where one holds out another as his agent to sell property, either verbally where the property is personal, or in writing where the property is real, he will be estopped from denying the. authority to sell, and where the agency is general, the purchaser will not be bound by any private instructions of the owner or any restrictions in the authority of the agent. As to estoppels when one stands by and sees his property sold without disclosing his interest, see Wells v. Pierce, 27 N. H. 503; Nixon v. Carco, 28 Miss. 414, 428; Turner v. Baker, 64 Mo. 218; Stone vw. Britton, 22 Ala. 543; Whittington v. Doe, 9 Ga. 23; Osborn v. Elder, 65 id. 360; Wimmer 2. Ficklin, 14 Bush, 193. As to estop- pels where one stands by and sees improvements on land, see R. Co. v. Jones, 68 Ala. 48; Iverson v. Saulsbury, 65 Ga. 724; Eldridge v. Walker, 80 JIl. 270; Nichols v. Pool, 89 id. 491; Bullis 2 Noble, 36 Iowa, 618; Overman 2. Hathaway, 29 Kans. 434; Kelly 2. Hurt, 74 Mo. 561; Kirk ». Hamilton, 102 U. 8. 68; 2 Smith’s Lead. Cas. 888. Q. What is meaut by ‘‘standing by and acquiescing ” in a transaction so as to work an estoppel ? A. It simply means that where one is present in such a sense as to be placed in full possession of all the facts and silently acquiesces in an act or representation where duty requires him to speak out and repudiate them, he should be estopped from so doing when innocent persons have been misled and injured by his previous silence. He should not connive at deceit. He is not bound to speak unless he has an interest in the transaction or owes a duty to others. Where his silence or his representa- tion did not influence the conduct of others and they acted independently of them, he should not be es- topped. Q. Where, for example, the record which the law re- quires to be kept would furnish all necessary informa- tion touching the rights of another to property, may the principle of estoppel be applied to him when he stands by EsTopPEL. 829 and sees another purchase the property and does not dis- close his title ? A. There is some conflict of authority on this point. Does not.the record itself give notice to the world? Mason v. Philbrook, 69 Me. 57; Roberts v. Weiler, 55 Miss. 251. It has been held that where the owner of property knows that the person is ignorant of the record, it is his duty to ‘speak. Markham v. O’Connor, 52 Ga. 188; Perry v. Hall, 75 Mo. 503; Kingman v. Graham, 51 Wis. 232; Baker v. Huraphrey, 101 U.S. 494, cited in Smith’s Lead. Cas. 891. There isa marked difference be- tween one’s standing by and acquiescing by his silence and in taking active part in inducing the purchase. Id. Q. Must not one adopt the whole of a transaction or none of it ? A. This is the well-established rule. ‘‘ Equitable es- toppels of this character apply to infants as well as adults, to insolvent trustees and guardians as well as to persons acting for themselves, and have place as well as where the proceeds arise from a sale by authority of law, as where they spring from the act of the party.” Q. Where the purchaser of land takes possession and holds the same, but fails to comply with the terms of the purchase, may he, in an action of ejectment, set up defect of title ? A. He may not. If the title be defective he has his remedy; but he will not be permitted to keep the land and money too. Strong v. Waddell, 56 Ala. 471; Mun- ford v. Pearce, 70 id. 452; Hill v. Winn, 60 Ga. 3387; Pershing v. Canfield, 70 Mo. 140; Farmers v. Pickens, 83 N. C. 549; Cowell v. Springs Co., 100 U. 8. 55. Q. A person is about to buy lands. He goes to the attorney who represents a number of judgment creditors and fully informs him as to his purpose. The attorney, in response to an inquiry, informs him that all except one of the judgments has been paid and the person pays this and buys the land. The attorney afterwards buys the land under a sale from one of the judgments held by 42 330 LAW AND PRINCIPLES OF EVIDENCE. him at the time. Will he not be estopped from assert- ing title as against the person to whom he made the rep- resentations @ A. He will be estopped. Am. Dig. (1891) 1610, § 140. Q. Where one makes representations as to his com- mercial standing and responsibility and induces another to give him credit on the assurance that he is the sole owner and proprietor in a business, will he be estopped from denying it ? A. He will. Q. Will the mere fact that one acquiesces in what he cannot avoid and makes no objection to what another does in pursuance of a law, estop him from asserting his. right to damages for such acts 4 A. It will not. A person is only bound to speak when by so doing it might stay the mischief which follows. from his silence. Q. Where one holding a usurious note secured by mortgage is about to assign the same. and the mortgagor stands by and acquiesces in the representations of the mortgagee that the note is valid and free from any vice, and the assignee takes them on this assurance, may the maker set up usury in a suit by the assignee ? A. He is estopped. Q. What is the rule where one stands by and sees another render work beneficial to him ? A. ‘‘Where he knows that the person is rendering it under the expectation of being paid by him for the work and fails to speak, a request for the rendering of the ser- vice may be implied, if there are no circumstances which repel such presumption.” Painter v. Ritchey, 43 Mo. App. 111. Where one having a mortgage on property permits the mortgagee to sell the same, and stands by and sees him sell it to aninnocent purchaser without notice, he is bound by it and cannot deny the authority of the mort- gagor to sell Benedict v. Farlow, 27 N. E. Rep. 307; Am. Dig. (1891) 1619. EStTorrpe.. 831 Q. May one bind himself by an estoppel where his agreement is in violation of law ? A. He may not. Q. Where one takes a mortgage on property subject to a prior mortgage given on the same property, may he attack the validity of such mortgage ? A. He may not. He may show, however, that it was without any consideration. Q. Where one who owes a negotiable promissory note pays the same to the original payee and does not take up the note or make any inquiry as to whether it has been negotiated, and the holder of the note took no part in misleading him, will the holder be estopped from pro- ceeding to collect the note ? A. He will not. Q. Where a father represented that his son was the owner of lands and was in possession of them, and on the strength of such representations credit was given to the son, but the representations were not made to the person furnishing the credit, but simply came to his knowledge, will the father be estopped from asserting ownership as against such claim ? A. Where the admissions were not made with any design that they should be acted on, the father will not be estopped. Harvey v. West, 135. E. Rep. 693. On the subject of estoppels by acquiescence in judicial sales, see Walker v. Larkin, 127 Ind. 100; Davey v. Big Rapids, 85 Mich. 56; Merritt v. Merritt, 48 N. J. Eq. 1; Metts v. State, 68 Miss. 126; Bank v. Saw Co. 104 Mo. 425; Am. Dig. (1891) 1611, 1612, §§ 152, 155, 159, 161, 164; Eller v. Evans, 128 Ind. 156; Hayden v. Slaughter, 43 La. Ann. 385; Stanton v. Boschert, 104 Mo. 393. Q. Where one makes a deed, absolute in form to an- other, in order to procure advances, and the vendee with the verbal consent of the vendor, who makes no objection, sells the land, will the vendor be estopped from setting up that the deed was merely to secure the advances? 332 Law AND PrincrpnLes oF EVIDENCE. A. He will, and the title of the innocent vendee will be protected. Q. May a judgment be collaterally attacked by third persons ? A. Asa general rule, it may not be except on the ground of fraud or collusion in the procurement of the judg- ment. On these grounds it is always open to impeach- ment. The presumption always is that the judgments of courts of competent jurisdiction are regular, and the bur- ben is on the party who assails them. Q. Where the record itself shows that the question could not have been determined in a previous trial, is the judgment conclusive ? A. It is not. Q@. Are the judgments of the federal courts conclusive in the state courts ? A. They are, but they may be attacked for the want of jurisdiction. McCauley v. Hargroves, 48 Ga. 50. Q. On whom are judgments in ejectment binding ? A. They are binding only on the defendant in the ac- tion. In cases of counter demands not set up in a suit, they are not covered by judgments. Persons who are neither parties nor privies may sometimes be bound by judgments. A judgment for a part of an entire demand will bar an action for the balance. Rosenmuller v. Lampe, 31 Am. Rep. 14. Parol evidence is admissible to show what was in issue. Freeman Judgments, 272-276, 149-161, 162-173; 25 Am. Dec. 542-544 (note); 27 id. 223- 225 (note). Q. What is the rule as to judgments in rem ? A. Judgments zn rem are conclusive against everybody, and everywhere if the court has jurisdiction in rem. 1 Whart. Ev. §§ 814-818; Bigelow Estoppel, 140. Q. What is a judgment zn rem ? A, “It is an adjudication pronounced on the status of some particular subject-matter by a tribunal having ESTOPPEL. 333 competent authority for that purpose.” 2 Smith’s Lead. Cas. 662. See Taylor Ev. § 1487. .Q Where the presumption of law is conclusive against a party, is not the estoppel conclusive # A. It is. ‘‘Presumptions of law are sometimes conclu- sive, and an averment to the contrary will not be allowed. These are termed estoppels and are not generally favored. Among these are the presumptions in favor of a record or of a judgment unreversed; of the proper conduct of courts and judicial officers acting within their legitimate sphere; of other officers of law after lapse of time has rendered it dangerous to open the investigation of their acts in re- gard to mere formalities of the law; of ancient deeds and other instruments more than thirty years old when they come from the proper custody, and possession has been held in accordance with them; recitals in deeds except payments of the purchase money, as against the grantor in his own right and his privies in estate, blood and in law; the landlord's title as against tenant, while tenant in pos- session; solemn admissions made ¢n judicto and other ad- missions, on which other parties have acted, either to their own injury or the benefit of the persons making the admissions, and similar cases where it would be more unjust and productive of more evil to hear the truth than to forbear the investigation.” Code of Georgia, § 3753. Q. Is an attorney of record for plaintiff estopped from urging invalidity of a judgment ? A. He is. Q. Where one accepts the position of attorney under a deed, is he estopped from denying his trusteeship ? A. Heis. So, also, where one accepts a deed in which it is recited that the vendor has a homestead on the prop- erty, he is estopped from denying the validity of the homestead. On estoppels, see following authorities: Doctrine not applicable to persons not sui juris. Ewell’s Lead. Cas. 220-226; Spencer v. Carr. 6 Am. Rep. 112. As applicable to married women. Well’s Sep. Prop. § 265. As applicable to judicial sales. Born’s Jud. Sales, 3834 Law AND PRINCIPLES oF EVIDENCE. 198. In connection with doctrine of ultra vires. Green’s Brice, 42, 375, 379, 385, 396. As to dower, estoppel on those claiming under husband. 2 Scrib. Dow. 217-287. On widow. Id. 237-265; McLeery v. McLeery, 20 Am. Rep. 683. On bailee from disputing bailor’s title. Broom’s Legal Maxims, 907. Estoppel on common carriers, 2 Whart. Ev. §§ 1302, 1818; 17 Am. Dec. 505 (note); 6 id. 716 (note); Bigelow Estoppel, 431; Herman Estoppel, 384. What conduct estops a stockholder from denying that he is a stockholder in a corporation. Thompson Lead. Cas. 160-175; 9 Am. Dec. 102 (note). Q. May a common carrier dispute the title of one who delivers goods for shipment ? A. He may not. Q. Where a record involves an admission by a party, may it be received in evidence against him ? A. It may, and such admissions may amount to an estoppel. Q. In order to establish an estoppel by record, must the whole record go in? A. It must. Wherever the written or verbal admis- sions of a party are offered in order to establish an estop- pel, the whole of the pertinent admission should be of- fered. Where one party introduces and reads from a rec- ord parts of it, the other may read other parts pertinent to the question being tried. Neither party can take ad- vantage of any irrelevant matter. Q. Will a tenant be estopped from denying his land- lord’s title 4 A. Such is the well-established rule. He can neither set up permanent title in himself or a third person. On this subject, see Clarke v. Clarke, 51 Ala. 498; O’Hallo- ran v. Fitzgerald, 71 Ill. 54; Carter v. Marshall, 72 id. 609; Snodgrass v. Butler, 54 Miss. 45; Hatch v. Bullock, 57 N. H. 15; Terrett v. Cowenhoven, 79 N. Y. 400. The estoppel will operate although the tenant had no actual possession. The estoppel is founded mainly on the rea- ESTOPPEL. 335 son that no one should be permitted to get possession of lands as a tenant, and then tv impeach and deny the very authority under which he holds. The tenant must first surrender and then assert his own title if he has any. Even when he takes possession as tenant, in ignorance of his own title, he should surrender to his landlord at the expiration of his lease. The tenant will never be in position to assert permanent title as long as he continues in the possession of the premises. He must leave the landlord as he found him, with none of his rights im- paired by reason of having placed the tenant in posses- sion. Q. Referring again to estoppels by matter of record, what must appear in order that a judgment in one action shall be conclusive in another ? A. It must appear that the questions about to be sub- mitted in the second suit were adjudicated in the first. If the record itself, when produced, shows this fact, it will be sufficient; but where it does not appear from the face of the record, parol evidence will be received to show what issues were made and passed upon in the former suit. In the Duchess of Kingston’s case a judgment was said ‘‘not to be evidence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” It must certainly appear that the matter litigated in the second trial is fully covered by the judgment in the first. In other words, where res adju- dicata is set up the burden is on the party pleading to show that the questicn was clearly and distinctly adju- dicated. ‘‘A judgment is conclusive on all points within the scope of the record and legally brought before the court and jury, although extrinsic evidence may be given for the purpose of ascertaining what the controversy really was, and showing what matters expressed in the pleadings and which might have been adjudicated, were not presented or decided in fact. But while parol evi- dence may sometimes be admitted for the purpose of lim- 3386 Law aNpD PRINCIPLES OF EVIDENCE. iting the estoppel, it is always inadmissible to extend it or to show that matters foreign to the record were em- braced in the verdict.” The record may not disclose all the issues passed upon in the first trial, and parol evi- dence may be used to aid the record, but not to show that questions entirely foreign to it were passed on. Q. May a judgment be impeached on the ground that. the court erred in matters of law, or that the jury mis- took the facts, or that the witnesses on whose testimony it was procured swore falsely, or that the jury was tam- pered with ? A. It may not. The party should have moved for a new trial, and have taken advantage of such exceptions. If, by his own laches, he permits the judgment to go un- challenged, he will be concluded. Q. What is the general rule as to the plea of res ad- judicata ? A. “The plea of res adjudicata applies except in special cases, not only to the points upon which the court was. required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercis- ing reasonable diligence might have brought forward at the time. A party can no more split up defenses than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction.” The parties are required to bring forward their whole case in the first trial. Q. Where one has a demand against another for a liquidated sum, and takes judgment for only a part of it, is he estopped from afterwards suing for the balance ? A. Heis. Where, however, one has a cross demand: against a plaintiff, he is not bound to set it up by recoup- ment, but may bring an independent action for his de- mands. It isalso held by many of our courts that where one brings an action, for example, for the price of ma- chinery, and the defendant permits judgment to go against him, he cannot afterwards bring an action for EsropPE.. 3387 breach of warranty for defects in the machinery. If the defendant’s demand is not involved in the judgment of the plaintiff, he will not be estopped from bringing his action. Q. In the case of a foreign judgment does it merge the debt so as to estop the plaintiff from suing the defendant in another state on the debt ? A. The well-established rule is, that the debt is not merged in the judgment, but the holder may either sue on the judgment or on the debt. Q. May a foreign judgment be collaterally impeached ? A. It may not. Where the validity of the judgment is brought directly in question, it may be attacked on grounds previously indicated, but it cannot be assailed collaterally. Q. May the judgment of a sister state be enforced by execution ? A. It may not; it is conclusive evidence of a debt and may besuedon. The defendant, in such case, is estopped from setting up that he did not owe the debt, or from pleading failure or want of consideration, or usury in the original contract. He is concluded by the foreign judgment to which the courts of the other states will give full faith and credit. Q. Will a judgment against one co-partner, co-obligor or co-contractor bind others not served ? A. It willnot. He must be made a party by voluntary appearance, or by legal summons, before he can be bound by the judgment. Q. Where one, whose liability on a claim or demand is only secondary, gives notice to another whose liability is primary to appear and defend, and the latter fails to do so, and judgment is rendered, will it be conclusive against the one primarily bound ? A. It will. Thus, where one warrants the title to land, and his vendee is sued, he may notify his warrantor to intervene, and if he fails and judgment goes against the 43 338 Law AND PRINCIPLES OF EVIDENCE. vendee for the premises in dispute, the warrantor will be bound by the judgment. The notice, to be binding, should be clear and distinct Q. Does the same rule apply to principal and surety ? A. It does not, and a judgment against either is not conclusive against the other, unless both were sued. Notice by the surety to the principal to appear and defend will not make the judgment conclusive against the principal 4 Q. Where a municipal corporation is sued for damages for breach of duty by a bonded official, and notifies the officer to appear and defend, will he be bound by the judgment ? A. He will. Q. Where suit is brought against one or more persons who are joint obligors or joint and several, and others are not sued, are the plaintiffs estopped from bringing suits against those not served after judgment against defendants, and why ? A. They are estopped. The debt is said to be merged in the judgment and those not served are discharged. But a judgment against one co-tresspasser will not bar an action against others. Q. What is the general rule as to judgments im rem and judgments zn personam ? A. The former are conclusive on everybody; the latter on parties and privies. As to the distinction between them, see Duchess of Kingston’s case, 2 Smith’s Lead. Cas. 965-978. CHAPTER IX. ADMISSIBILITY. Q. What general rules may be profitably observed in considering the question of the admissibility or rejec- tion of evidence ? A. Mr. Taylor, in his work on Evidence, lays down six rules. 1st. When evidence is offered by one party for a particular purpose, and objection is raised to its admissi- bility for the purpose expressed, if the court hold that the evidence is admissible generally, and the evidence be admissible for any purpose, it is not reversible error. 2nd. Where irrelevant evidence is received without objection, the party whose duty it was to object, cannot take advantage of its admission by bill of exceptions, because the court failed to rule it out ex mero motu. 3rd. Where objections are offered to the admissibility of evi- dence, the grounds of objection should be fully and dis- tinctly stated so that the court may pass intelligently on them, and objections should all be urged at once. 4th. Where evidence is offered at the trial on an untenable ground and rejected, a new trial will not be granted on the ground of its admissibility for other purposes not urged on the trial, unless it be shown that, by due diligence, he could not have offered the evidence on the proper ground. 5th. In order to take advantage of any error in the rejection of evidence, the party offering should clearly state what fact or facts he wishes to prove. 6th. It should clearly appear that the party complaining was injured by the admission or rejection of evidence. Taylor Ev. § 1880. Q. What other general rule may be stated ? A. If, on a careful survey of all the evidence, the appellate tribunal is fully persuaded that the verdict is right and ought to stand, a new trial will not be granted for error in the admission or rejection of evidence. 339 340 Law AND PRINCIPLES oF EVIDENCE. Where, however, the case is doubtful on the merits, a stricter rule will be observed, and if the improper admis- sion or rejection of evidence may be reasonably supposed to have prejudiced the rights of either party, a new trial will generally be granted. Q. What is the general rule as to newly discovered evi- dence as ground for new trial ? A. It will not be granted on this ground unless it be shown that the party exercised diligence; that he did not know of the evidence at the time of the trial, and could not have known it by the exercise of diligence; that his counsel did not know of it; that the newly dis- covered evidence is not cumulative merely; that, if believed, it ought to work a different result; that the witnesses who will furnish the new evidence are worthy of belief. Q. Will a new trial be granted for the admission of the evidence of a witness who was incompetent to tes- tify, but whose incompetency was not know at the time of the trial ? A. The general rule is that objections on the ground of incompetency must be urged during the trial; but if the incompetency was not known, and the testimony of such a witness was taken, and may have won the verdict, it may be ground for reversal. Q. What is the rule as to the grant of new trials on account of the misconduct of the jury ? A. Jurors will not be heard to impeach their own ver- dict, but where it is made to appear to the court that members of the jury discussed the merits of the case on trial with third persons or were influenced by them or received improper communications from other persons after being charged with the case, or were otherwise tampered with to the prejudice of either party, a new trial will be granted. In criminal cases, where the jury has violated instructions, the burden is on the state to show that the defendant was not prejudiced. ADMISSIBILITY. 341 Q. Where the evidence is in conflict, without any decided preponderance on one side or the other, and the jury passes on the issues submitted, will the courts usually interfere with the verdict unless there is some error of law ? A. They will not. Q. Where the court commits error in its charge to the jury or in the refusal to give a pertinent legal charge by which the rights of either may have been pre- judiced, will a new trial generally be granted ? A. It will. If, however, the error was pees the new trial will not be allowed. Q. Where one of the jurors is so related to a party, plaintiff or defendant, as to render him incompetent, or is otherwise incompetent, and the fact of his incom- petency was unknown to the party to the suit at the time of the trial or to his counsel, would this be ground for new trial ? A. It would. Q. Where must motions for new trial be made ? A. During the term of the court at which the case was tried. Q. How often may new trials be granted ? A. As often as the ends of justice may require it. Q. Where both parties are dissatisfied with the ver- dict, may both move for new trial ? A. They may. Where one party takes a case up, the other may file a cross-bill of exceptions. Q. Where the court expresses an opinion on what has or has not been proven, will a bill of exceptions lie ? A. It will, unless the fact about which the court ex- presses the opinion is admitted. The court should never express an opinion or intimate one on the facts in issue. Q. Where the attention of the court is specifically called toa material point of law, and the court is asked to charge it and refuses, is this good ground for new trial ? 342 Law AND PRINCIPLES OF EVIDENCE. A. It is. ‘Each party is entitled to distinct and ex- * plicit instructions on every point of law propounded to the court.” The request to charge a point of law must be bottomed on the evidence. If the exception be founded on the admission of evidence, it should appear that the rights of plaintiff were injuriously affected. Q. Where the law vests a discretion in the inferior court to grant or refuse a new trial, will such discretion be interfered with by the appellate court? A. Not unless thereis an abuse of discretion. Q. May the time for perfecting motions for new trials and amendments, and preparing a brief of the evidence, be enlarged by the court when the ends of justice re- quire it ? A. It may. Q. Where exception is taken to the charge of the court, ought not the charge to be set forth and in what the error consisted # A. It ought; and where the exception is to the exclu- sion of evidence, it ought to appear that the evidence was relevant, and for this reason the evidence offered should be set forth. It should also appear that the evi- dence offered was competent. So, where the objection is to evidence introduced, the evidence should be set forth. It should also appear that the evidence was ob- jected to. Q. May the verdict of the jury be impeached by the affidavits of jurors showing the misconduct of the jury ? A.It may not; nor will the affidavits of third persons, as to statements made by jurors impeaching their verdict be received, or that they did not agree to the verdict, or that they misunderstood the charge or. that the vote was not unanimous. Nor will affidavits be received to show on what theory the jury rendered the verdict. But their affidavits may be received in sup- port of the verdict to show that they were not tam- pered with; that certain papers which ought not to have ADMISSIBILITY. 343 gone into their hands were not considered, or to ex- plain any other suspicious circumstances, and to show that the grounds on which the attempt to impeach is made are untrue. See Am. Dig. (1889) 3834, §§ 44-52. Q. May a judgment overruling a demurrer be made the basis for a new trial ? A. It may not. Rogers v. Rogers, 38. E. Rep. 451. Q. Is the rejection or admission of immaterial evidence ground for new trial ? A. Itis not. Where the evidence admitted or rejected could not have varied the result, a new trial will not be granted. ‘‘The motion for new trial must specifically indicate the evidence offered and excluded, and the bill of exceptions must show that the evidence offered was that indicated by the motion.” _Q. Where a juror trying acase is guilty of improper conduct, and one of the parties knows of such miscon- duct, and does not call the attention of the court to it, will he be entitled to a new trial ? A. He will not. He ought not to be allowed to take the chances for a favorable verdict, and then complain. Q. Where a juror is absent part of the time, and the party knew of his absence and made no objection, will a new trial be granted at his instance ? A. It will not. Q. Where remarks are made by bystanders in the presence and hearing of the jury which are calculated to prejudice the rights of either party, will new trials be granted ? A. This must largely depend on the facts of each particu- lar case. If it appear that the jurors were not influenced by the remark, the court will not set aside the verdict. If the matter be left in doubt, the courts are generally in- clined to grant new trials. The court, however, should be satisfied that the remarks had an injurious effect. The affidavits of jurors will not be received to show their own misconduct, or to impeach their verdict. 344 Law AND PRINCIPLES OF EVIDENCE. Q. Will new trials be granted for misconduct and im- proper language of counsel in the argument of cases ? A. They will. Where counsel, for example, persists in going outside the evidence, in unjustifiable assaults on the character of one of the parties, and in parading the wealth of one and the poverty of the other party, or by any other unfair means take an undue advantage of the other party, new trials may be granted. Q. Will verdicts be set aside because they are merely against the weight of evidence ? A. The verdict must be so clearly against the evidence as to justify the belief that the jury either did not prop- erly weigh the facts or acted corruptly. In order to the grant of a new trial on this ground the verdict of the jury should be entirely unwarranted. Q. What may be stated as the general rule on the sub- ject of the grant of new trials where there is conflict of evidence ? A. ‘“‘A new trial will not be granted on the ground that the verdict is contrary to the weight of evidence, if the evidence was conflicting, and the cause left to the deter- mination of the jury under a clear and impartial charge, even though the court in the first instance, might have come to a different conclusion.” In a Georgia case, Moulton v. Baer, 2 8. E. Rep. 471, the court held that ‘‘if the jury preferred to believe the evidence of one party rather than another, their verdict will be sustained, even if not in accordance with the actual weight of the evidence, and the trial judge having in his discretion re- fused a new trial on this ground, the appellate court will not interpose.” Q. What is the rule where the verdict in damage cases is excessive ? A. Where it is clearly excessive, new trials will be granted. It should appear, however, that the verdict is so excessive as to justify the conclusion that it was the result of passion or prejudice. New trials may also be granted where the verdict is too small under the evidence. ADMISSIBILITY. 345 Where the verdict is excessive, a new trial will some- times be granted unless plaintiff remits parts of the amount. Q. What is the rule, where a new trial is sought on the ground that one of the witnesses of the adverse party was guilty of willful and corrupt perjury ? A. It should appear that the witness has been duly con- victed and that the verdict could not Rave been obtained without his evidence. Q. Where newly discovered evidence is merely cumu- lative, or impeaching in its character, will the new trial be granted ? A. It will not. Q. Will the rejection of evidence and the charge of the court as to immaterial matter afford ground for new trial ? A. It will not. The court should charge that the evi- dence is immaterial. Q. Where counsel use improper language to the jury, and the court corrects the counsel, and admonishes the jury not to consider it, will a new trial be granted? A. It is in the discretion of the court to grant it. Q. Where the new trial is asked for on the ground that it is contrary to the weight of the evidence, is it not largely in the discretion of the court ? A. It is. Where the evidence is close, the discretion of the court in granting or refusing a new trial will not be interfered with. Q. Where the jury gives exemplary damages which it was improper to give under the evidence or where punitive damages are given, ought not a new trial to be granted ? A. It ought. Q. Where the newly discovered evidence goes merely to the credit of witnesses, ought a new trial to be granted ? A. It ought not. 44 346 Law AND PRINCIPLES OF EVIDENCE. Q. Where one party has prevented the attendance of the other parties’ witnesses, duly summoned, whose tes- timony it is shown, would have been material, may a new trial be granted ? A. It may, and should be, granted. Q. Will a verdict be set aside and a new trial granted because the jurors averaged the sum fixed on by each juror and rendered their verdict accordingly ? A. It wilt not, nor is the testimony of jurors admis- sible to show this fact. Q. Where the witness for one of the parties made a mistake in his testimony, will a new trial be granted ? A. It must appear that if the mistake were corrected, it would and ought to change the result, and it should be shown why the fact about which the mistake was made was not correctly shown by other witnesses before a verdict is set aside on this account. Wimpy v. Gaskill, 7S. E. Rep. 156. Q. Do the same rules apply to the grant of new trials in criminal as in civil cases ? ’ A. They do not. In civil cases a mere preponderance of evidence is sufficient to authorize a verdict, and new trials will not be granted where the case is a close one on the evidence unless there has been some misdirection by the court or misconduct on the part of the jury. Nor will it be granted where the preponderance of the evi- dence is against the party applying; but in criminal cases preponderance of evidence will not be sufficient, but it should be of such a character as to remove all reasonable doubt of defendant’s guilt; otherwise a new trial should be allowed. Q. Where there are several grounds in the motion for new trial and the court grants it on some of the grounds only, ought not such grounds to be specified ? A. They ought, so that if exceptions be taken to the grant of the new trial, it may clearly appear on what ADMISSIBILITY. 347 grounds the court acted. The court will not grant a new trial on grounds not taken in the motion. Q. Where the motion is made on the statutory ground that the verdict is contrary to law and the verdict is illegal for any reason, may the new trial be granted ? A. It may. Q. Will the appellate court usually interfere with the first grant of a new trial ? A. It will not be disturbed unless there was an abuse of discretion or it appears that the court granted it solely ona matter of law. In the latter case, the appellate court will interfere if the court below erred in its view of the law. In the grant of a new trial on matters of fact the appellate court will reluctantly interfere. Q. Where there are several grounds in the motion and the court below grants the new trial on one ground only, to which exception is taken, and it appears that the court erred in granting it on the one ground, may the judg- ment be affirmed if the other grounds were good ? A. It may. Q. Where exception is taken to the charge of the court, ought the part of the charge excepted to, be set forth ? A. It ought, and it ought to be clearly set forth where- in the charge was erroneous, so that the appellate court may understand the errors complained of. Q. Must the admission of improper evidence or the re- jection of proper evidence always be shown to have been prejudicial, in order to authorize a new trial ? A. It must. Q. Where there is objection toa juror propter defectum, what is the rule ? A. The causes for challenge should be discovered and urged before verdict. Where the motion for new trial is on the ground that the juror had formed and expressed an opinion before being sworn and was strongly preju- diced against the party, it should appear that he was 348 Law AND PRINCIPLES OF EVIDENCE, really prejudiced and that what he said was not in jest and that he was not an impartial juror. The burden is on the movant in civil cases to show this fact. Q. Is it held to be a good ground for new trial that a person has slept with the jury and discussed the charac- ters of the parties and the issues with them ? A. It is. Q. In motions for new trial on the ground that the court erred in refusing a continuance on the ground of the absence of witnesses, what is the rule generally adopted ? A. It must be shown that the witness or witnesses were duly summoned and that their evidence was ma- terial; and it should appear that their evidence would likely have changed the result. Q. Will the courts grant new trials merely because the parties both consent ? A. They will not, but it is generally in the discretion of the courts to do so. Q. May a juror impeach his own verdict by declarations made after the trial 4 A. Hemay not. For example, his declarations after the trial that he was strongly prejudiced, will not be re- ceived. Q. Where the motion is based on the ground that the verdict is contrary to law and evidence, does this raise the question of the amount of the recovery ? A. It does not. Q. Where pending the trial of a case some of the jurors read newspaper articles violently attacking one of the parties and his case, would this be ground for new trial ? A. It would. Q. Will new trials be granted for illegal evidence where there is sufficient evidence outside of that which is illegal, to authorize the verdict ? A. They will not. ADMISSIBILITY. 3849 Q. Where the court, in its charge to the jury, restricts it to a part of the evidence, is this ground for new trial ? A. It is. It is also error for the court to charge on con- flict of evidence when there is none. Q. Where the charge of the court is of such a character as to mislead the jury, will a new trial be granted ? A. If the charge be on a material point, it will. It will also be granted where the court omits or refuses to charge on the main point. If the charge is not full enough, an additional charge should be requested. The court may recharge when requested. Where the court refuses writ- ten requests to charge, the charges requested should not be read to the jury? Q. Where the verdict is in conformity with an erron- eous charge,will anew trial be granted ? A. It will. See the following authorities: 1 Graham & W. 261, 262, 263; Hilliard on New Trials, 2538, et seq; Wells Ques. of Law and Fact, 287-475; Mode of excepting. Wells Ques. of Law and Fact, 616; Stimpson v. R. Co., 4 How. 380; Hx parte Crane, 5 Pet. 190; Rogers v. Marshall, 1 Wall. 644; Lincoln v. Claflin, 7 id. 182. Af- fidavits of jurors as to misapprehension of the charge, see Tyler v. Stevens, 17 Am. Dec. 404. Onsending written instructions to jury with copy of statute. State v. Patter- son, 12 Am. Rep. 200. Court need not charge on all points raised by the evidence. Klein v. Russell, 19 Wall. 433. Illustrations presented as a whole need not be given, if any of them are erroneous. May be granted for abuse of privilege of counsel in addressing the jury. Coble v. Coble, 28 Am. Rep. 338; Brown v. Swineford, id. 582. Damages excessive or too small. 1 Graham & W. 410- 453; 8 id. 1113-1175; Mayne on Damages, §§ 794-808. Error in discretionary matters. Howell on Appellate Pro- ceedings, 164, 195, 321, 336. Irregularity in impan- eling jury. 1 Graham & W. 19-40. Misconduct of jury. 1Graham & W. 63-128; 2 id. 331, 478-594; 27 Am. Rep. 475 (note). Use of liquors, 9 Am. Rep. 764 850 Law AND PrincipLes OF EVIDENCE. (note); State v. Morphy, 11 id. 122; Ryan v. Harrow, 1 id. 302. Summoning and drawing jurors. Graham & W. 151-205. Disqualification of jurors. 2 Graham & W. 206-287. Bias and hostility of jurors. 2 Graham & W. 366; French v. Smith, 24 Am. Dec. 616; Ins. Co. v. War- ren, 22 Am. Rep. 590. Not set aside for infancy of juror. Wassum v. Feeney, 28 Am. Rep. 258. Juror would be incompetent by relationship to counsel whose fees de- pend on a recovery. Nelson v. Dickson, 36 Am. Rep. 128. When communications between judge and jurors in ab- sence of counsel avoids verdict. Read v. Cambridge, 26 Am. Rep. 690. Where a jury uses intoxicating liquors while deliberating may avoid the verdict. State v. Bruce, 30 Am. Rep. 408. Presence of officer in jury room while jury is deliberating may avoid the verdict. People v. Knapp, 36 Am. Rep. 438. Misconduct of successful party. 1 Graham & W. 45-56; 2 id. 288, and other authorities cited in note to § 8718, Code of Georgia. CHAPTER X. LIBEL AND SLANDER, Q. What constitutes a libel ? A. False, defamatory words, written and published, constitute libel; if spoken, slander. Where words are libelous per se, malice is presumed, and there is no necessity of proving special damages; otherwise, where the words are not libelous per se, and words which merely tend to injure. To say of a man, for example, that he is dishonest or immoral is not prima face libel- ous or slanderous, and to recover damages malice must be shown. It is also held that to say of one that he isa “liar,” ‘‘coward” or ‘‘sneak,” is not, per se, libelous. But where the words, spoken or printed, attribute to another a crime or conduct which would exclude him from society or charge him with having a contagious disorder, the words are actionable per se. Q. In the case of words actionable per se, does the law ‘always presume general damages ? A. It does. Q. What distinction is made between printed and spoken words ? A. It is held that words which might not be actionable per se if spoken, might be so if printed. This reasonable distinction rests on the idea that printed words give wider publication and are more likely to be preserved and remembered than when spoken. Vox emissa volat; litera scripta manet. Odgers Slander, 2, et seq. Q. Will it be material with what intention words were spoken or written @ A. If injury results the plaintiff will be entitled to recover, no matter what the intention or motive may have been; but the fact that a mistake was made or that there was no ill will or malice, may be given in 351 852 Law AND PRINCIPLES OF EVIDENCE. evidenc ein mitigation of damages. The fact that there were mitigating circumstances in a libelous publication will not bar a recovery, and if the words are libelous “per se they ought not to bara substantial recovery, as distinguished from nominal damages. Q. Will a caricature or scandalous painting constitute a libel ? A. It may. Q. May a libel constitute a crime? A. It may. Criminal proceedings may be brought for libel and a civil action be brought for damages. Q. When are words said to be defamatory ? A. When they cause an injury to one’s reputation. “‘The question in every case is: Has the reputation of this individual plaintiff been appreciably impaired in consequence of the words employed by the defendant?” In cases of libel, any words are defamatory which impute a crime to the plaintiff or expose him to public contempt, hatred or ridicule, or which injure him in his profession or business. To charge one with having a. venereal disease, or to charge him with being depraved,. dishonest, corrupt or vile, is libelous. 2 Q. Where there is doubt as to whether the words are libelous, what is the rule ? A. It should be left to the jury under a proper charge of the court. Q. Are words which tend to impair the credit of a merchant, or injure one in his trade or profession, libel- ous } A. They are. So, where one’s title to property is slandered, he has his appropriate action for damages. Q. Will fair criticisms on matters of public interest be deemed libelous ? A. They will not. ‘‘The affairs of state, the adminis- tration of justice, public institutions and local authorti- ties, church matters. books, pictures and architecture, theatres, concerts and other public entertainments, and LIBEL AND SLANDER. 3538 other appeals to the public,” are open to fair criticism, and unless the language employed be wholly outside the bounds of propriety it will not be held to be libel- ous. If, however, the criticism be malicious, the de- fendant cannot take shelter under privilege. Q. May actions be maintained for words spoken as well as written? A. They may. When the words clearly impute a crime and are injurious on their face, the law will. pre- sume damages, and in such case special damages need not be proven. In other cases special damages must be alleged and proven. In order to be actionable per se, the words must impute a crime, or must be of such a character as to expose to hatred, contempt and ridicule. So, if the words charge the plaintiff with being dis- honest, or with being a cheat and swindler, they are actionable. Q. What is the office of an innuendo ? A. The office of an innuendo is to define the meaning of the words as employed by the defendant; how he intended them to be understood, and to whom he intended to apply them. It simply enlarges and ex- plains the language employed by the defendant. The actionable language, after being set out fully may be followed by an innuendo. If the words are doubtful, the burden is on plaintiff to show that the defendant. intended the meaning ascribed in the innuendo. ‘Any language published of a person that tends to degrade him, or to bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, or to cause other like injury, is actionable per se.” To call one a “‘sneak,” or to publish the following language of another is held to be libelous: ‘‘ Leave the old sneak to stink himself to death.” Q. What is the gist of the action for libel ? A. Malice. But malice in the sense of the law will be inferred where the publication is libelous per se, and is nothing more than the doing of the wrongful act inten- 45 354 Law AND PRINCIPLES oF EVIDENCE, tionally and without excuse. Where the words are libelous per se, the law conclusively presumes malice, and a person will be presumed to have intended the prob- able and reasonable consequences of the words published. Where a newspaper publishes an article reasonably calculated to injure another in his trade or profession, or to cast odium upon him, it is no excuse that it was pub- lished as a news item, nor will the damages be mitigated on this account. Q. Where a witness in a judicial investigation goes outside of the case and voluntarily and maliciously injects defamatory matter, will he be permitted to set up privilege ¢ A. He will not. Q. Where one publishes a matter concerning the busi- ness in which he is engaged, to others interested with him in the business, is such a communication privileged ? A. It is, unless the publication is malicious. Commu- nications to third persons will not be protected. They must be made bona fide to persons interested. Q. Is a publication by a mercantile agency touching the commercial standing and responsibility of another privileged # A. Where it is made bona fide and without malice, and to its clients who are interested in the subject-matter, it is held to be privileged ? Q. Is it necessary to allege or prove special damages where the matter is libelous per se, or where a crime is charged ? A. It is not. Q. Must not the declaration set forth that the slander- ous or libelous matter was published of and concerning the plaintiff ? A. It must. Where, however, the charge is not made in express language, the defect may be supplied by innuendo, showing that defendant intended to apply the words to plaintiff. 1 ‘ LIBEL AND SLANDER. 855d Q. In actions for slander, is testimony as to the wealth of defendant admissible ? A. It is. Q. Is it admissible to show by defendant that he and plaintiff had had a previous difficulty ? A. It is not, either in mitigation of damages or in justification. Brown v. Autrey, 38. EH. Rep. 669. Q. May the defendant not always show all the circum- stances under which the charge was made, the absence of ill will, and that the charge was made bona fide, on the information of others, who were believed to be trust- worthy ? A. He may do so, not as a bar to the recovery of sub- stantial damages, but simply in mitigation. Q. Where justification is set up, what should be shown 2 A. The matter of justification should be as broad as the defamatory charges, and should clearly establish the truth of the publication of the words spoken. The burden is on the party who justifies, and he is entitled to the opening and conclusion. Q. Can the defendant show that the plaintiff provoked the libelous publication by another publication, in miti- gation of damages ? A. He may, provided the interval between the two publications be not too great. It may be also shown that there was a general rumor in the community that the charge was true, and that defendant, in good faith, and without malice, simply published the substance of the rumor. Q. Where the sense or meaning, in which words were used is in question, who determines it ? A. The jury: Q. Is it libelous to charge a white man with being a negro? A. It is. So, to charge one with being a thief or burglar, is libelous, although no particular theft or burglary be charged. So, to call a woman an adulteress 356 Law anp Princietes oF EvmpENcE. is actionable, though no particular act is charged. Any words which impute unchastity to a woman are actionable. Q. Where the words are: ‘‘‘A’is no lawyer, but a miserable shyster” or ‘‘‘B’ is no doctor, he has killed more people than he has ever cured ”—are such words actionable ? A. They are, but special damages should be shown. Q. Where the slanderous words spoken of another were to the plaintiff’s wife, is this a sufficient publication ? A. It is. Q. Where one asks for credit, and refers the seller to third persons for information, are the answers considered privileged ? A. Unless it can be shown that the same were malici- ous, they are. Q. Are bills and answers, declarations and pleas in judicial proceedings, which are pertinent to the issues involved, privileged ? A. They are held to be absolutely privileged, provided the same are pertinent, and counsel does not go outside of the issues wantonly and maliciously to attack the character of parties or witnesses. Legitimate comment on the testimony of the witnesses, and the character and conduct of parties, so long as it is pertinent, is privileged; but counsel cannot take shelter under privilege for in jecting foreign matter into the case, and for malicious assaults on character. Q. Where one is charged with unchaste conduct, is it competent for the plaintiff in an action to show how those to whom the language was spoken understood the words ? A. It is. Q. Where the defendant sets up the general reputation of the plaintiff in the community, is it competent for him to prove specific acts 4 A. It is not. LIBEL AND SLANDER. 357 Q. May the repetition of the words be shown A. It may, although made to a different person, the object being to show malice. Q. Where libelous matter is inserted in a newspaper by a reporter, and without the consent or approval of the owner, will the latter be liable for punitive damages ? A. He will not be unless the conduct of the employee is approved. When the libelous article is copied from another paper, without malice, but as a matter of news, this may be shown in mitigation of damages. It is held that where a newspaper is sued for libel, what occurs after the publication is not admissible. Q. Is the charge of drunkenness libelous ? A. It is held to be where the person is in a business in which drunkenness is a disqualification. Q. Where official misconduct is charged in a newspaper article, what is the rule ? A. Very liberal allowances are made for articles criticis- ing the conduct of public officers. ‘‘ Public office is a public trust,” and those who voluntarily assume its burdens and responsibilities must be prepared for criti- cism. Nothing contributes more to upright official con- duct than fair and open criticism ; but no one has the right wantonly and maliciously to assail official character. The public has a right to know the truth about the con- duct of officials, but it is equally interested in their pro- tection from false charges and malicious aspersions. Where the charges are false and malicious actions will lie. Q. What is the test of good faith in the publication of an article by a newspaper ? A. ‘‘Mere belief in the truth of a publication is not necessarily enough to constitute good faith on the part of a publisher; there must be an absence of malice, as well as improper motive, in making the publication. It must have been honestly made in the belief of its truth, on reasonable grounds, after the exercise of such means 358 Law AND PRINCIPLES OF EVIDENCE. to verify its truth as would be taken by a man of ordin- ary prudence under like circumstances.” Allen v. Pio- neer Press Co., 41 N. W. Rep. 936, et seq. Q. Is malice inferred from oral as well as written defa- mation where the words are actionable per se ? A. It is. Q. Are confidential communications privileged ? A. They are not. Q. Is the publication of the proceedings of a court privileged ? A. It is. Q. Where words are spoken to a person who had al- ready heard them, under circumstances making them privileged, are they actionable ? A. They are not. Q. May the defendant, when sued for actionable words, set up that he only repeated what he heard other persons say ? A. He may not. Q. Where it is shown that there was no ill will, hatred or malice, may compensatory damages still be awarded ? A. They may. But where ill will and malice are shown, punitive damages may be allowed. Q. In suits against newspapers for libelous publica- tions, is it necessary to set out the whole article ? A. It isnot. Only the libelous matter need be set out. If, however, one part of an article is qualified or ex- plained by another, the qualifying part should be set forth. Q. May the defendant show that what he said or wrote was in the heat of passion, provoked by the conduct of the plaintiff ? A. He may, in mitigation of damages. Q. Where the defendant files a plea of justification and fails to sustain it, may the jury consider this fact in as- LIBEL AND SLANDER. 859 sessing damages, and increase the damages on account of the aggravation ? A. It may. Q. May mental anguish be considered by the jury in assessing compensatory damages, where there is no proof of special damages ? A. It may, where the article is libelous per se. Q. May a newspaper show that it published an article on information furnished by its reporter ? A, It was held in Morey v. Morning Journal Assn., 1 N. Y. Supp. 475; 25 N. H. Rep. 161, ‘‘that evidence that a correspondent of a newspaper acted in good faith when he sent an item to the paper, and that he had actually obtained information that what he reported was true, was admissible in mitigation of damages, where the newspaper published the libelous article without any knowledge on the subject.” It is the duty of the officers to make inquiry in such cases, before publication. Q. Where the words spoken are false, but there is no proof of express malice, may exemplary damages be given ? A. They may. In order to entitle the plaintiff to re- cover punitive damages there must be malice; but exem- plary damages may be recovered, although there was no spite or ill will, Morrison v. Press Pub. Co., 14 N. Y. Supp. 131; Grace v. McArthur, 76 Wis. 641; Wabash Printing Co. v. Crimrine, 123 Ind. 89. Q. In order to the admission of evidence showing special damages, must not the declaration show how the plaintiff was damaged ? A. It must. If it allege that he was injured in his profession, it must show how he was injured. Q. May any testimony as to the character of the plain- tiff be received, where justification is not pleaded ? A. It may not. Q. In suits against newspapers, how is the publication shown ? 360 Law AND PRINCIPLES OF EVIDENCE. A. By introducing witnesses who will swear that they read the libelous article in the defendant’s paper. The circulation of the paper before, and at, and after the time of the publication may also be shown. Q. Where plaintiff fails to prove the precise words as set forth in the declaration, but does prove them sub- stantially, will this be sufficient ? A. It will. Where there is a variance between the words set forth in the declarations and those shown by the proof, it may be cured by amendment, provided the amendment does not set forth a new cause of action. Q. May a corporation maintain a suit for libel where, for example, it is charged with corruption ? A. It may not; for only its members can be guilty of corruption. Q. Where one falsely protests a note, is it libelous ? A. In the case of May v. Jones, 14 8. HE. Rep. 552, it is held that ‘‘it is actionable libel for a notary public falsely and maliciously to protest for non-payment the accept- ance of a manufacturer’s draft and then send the draft with such protest ‘to the source from whence it came,’ and the fact that the protest shows on its face that no proper legal demand was made for payment and that the protest was invalid, will not render the libel harm- less.” Q. Where words used of another areof such a character as that they may cause damage to his business, but not necessarily so, what is the rule ? A. Such words are not generally actionable unless special damages be alleged and proved. Q. When is a communication said to be privileged ? A. “When made at such a time, on such an occasion and under such circumstances, that the inference of malice, prima facie, arising from astatement prejudicial to the plaintiff’s character, is thereby rebutted and im- poses on plaintiff the burden of showing malice in fact, that the defendant was actuated by motives of personal LIBEL AND SLANDER. 361 spite or ill will, independent of the occasion on which it was made.” Unless there is malice in such cases, the plea will be sustained. Q. How may words be properly classified with refer- ence to their defamatory character 4 A. ‘First, obviously defamatory; second, ambiguous, that is, words which though prima facie defamatory are still on the face of them susceptible of an innocent mean- ing; third, neutral, that is, words which are meaning- less until some explanation is given, such as slang ex- pressions and words in a foreign language; words used in some special, local, technical or customary sense; fourth, prima facie innocent, but capable of defamatory meaning; fifth, obviously innocent; words which can- not be construed so as to convey any imputation on the plaintiff.” Odgers on Libel and Slander, § 80. Where the words are capable of two meanings, one innocent and one defamatory, it should be left to the jury under proper instructions from the court to-determine whether the de- fendant intended to use them in the latter sense. Q. Where the words are prima facte innocent, but ca- pable of defamatory meaning, is an innuendo necessary ? A. Itis, and the innuendo should distinctly set forth the meaning intended by the defendant. If the words are, in no sense, defamatory, they cannot be aided by innuendo. Two things, says Mr. Odgers, must be certain; ‘‘the person scandalized must be certain and the scandal must be apparant by the words themselves.” If the person to whom the words apply is, on the very face of the words, uncertain, an innuendo will not aid them. All the sur- rounding circumstances may be shown, however, and if the plaintiff can satisfy the court and jury that the words were applied to him, he will be entitled to maintain his action. Q. What is the rule as to slander of title? A. “Where the plaintiff possesses an estate or interest in any real or personal property, an action lies against any one who maliciously comes forward and falsely de- 46 362 Law AND PRINCIPLES OF EVIDENCE. nies or impugns the plaintitf’s title thereto, if thereby damage follows to the plaintiff.” The mere fact that one asserts his title to property will not give aright of action, where he acted and spoke bona fide concerning his title. Q. Is one who requests, procures or commands another to publish a libel, answerable ? A. Heis. Qud facit per alium facit per se. Q. Where one writes a libel and delivers it to another, is this a publication ? A. It is, and it is held that every sale or delivery of a written or printed copy of a libel is a fresh publication. To show it, to sell it or to expose it is a publication. Q. Do the same rules apply to slander ? A. They do. Every one who repeats a slander is him- self a slanderer. The fact that it was the common talk and he believed it to be true may be shown to mitigate but not to bar recovery. Q. Where the publication of the libel or slander results from the plaintiff’s own conduct, or he consents to it, may he maintain the action ? A. He may not. Q. May the defendant justify as to one part of the pub- lication and meet the other under the plea of the general issue ? , A. He may. When the defendant justifies he should distinctly set forth what parts of the publication are true. Q. How are privileged communications divided ? A. Into absolute and conditional privileged communi- cations. If the privilege be absolute it is a conclusive bar; if conditional, it will not be a bar to recovery. Whether a communication is privileged is a question for the court. Q. Give examples of absolute privileged communica- tions ? A. Charges and statements made by judges, counsel LIBEL AND SLANDER. 363 and witnesses in judicial proceedings. Statements made in debates in legislative bodies on matters of public inter- est, and statements of public interest and statements made by grand jurors in the investigation of matters properly coming before them for action. Cases of quali- fied privilege, says Mr. Odgers, may be conveniently grouped under three heads: ‘‘1. Where the circum- stances cast on the defendant the duty of making a com- munication to a certain other person, to whom he makes such communication in the bona fide performance of such duty. 2. Where the defendant has an interest in the subject-matter of the communication and the person to whom he communicates it has a corresponding inter- est. 8. Fair and impartial proceedings of any court of justice or parliament.” Q. Are answers to confidential inquiries in reference to the character of servants privileged ? A. Where the answer is bona fide and without malice it is held to be privileged. ‘‘ Whenever, in answering, the defendant acted bona fide in the discharge of any legal, moral or social duty, his answer will be privileged. In all such cases, however, the person making the state- ments must honestly believe what he says to be true. Q. Where there is no confidential relationship between the parties, may the plea of privilege be maintained ? A. It may not. Q. Where one gives information to an officer touching the commission of a crime, bona jide and with an honest purpose to promote the ends of justice, is such a commu- nication privileged ? A. It isso held. ‘‘When it comes to the knowledge of any one that a crime has been committed, a duty is laid on that person, as a citizen of the country, to state to the authorities what he knows and honestly believes, and he cannot be subjected to an action for damages merely because it turns out that the person as to whom he has given the information is, after all, not guilty of the crime. For the sake of public justice, charges and 364 Law AND PRINCIPLES OF EVIDENCE. communications which would otherwise be slanderous, are protected if bona fide made, in the prosecution of an inquiry into a suspected crime. Q. Where one’s character is assailed in a newspaper, may he make a fair criticism on the article and the char- acter of its author ? A. He may, and so long as he confines himself to the defense of his own character and the protection of his rights, his reply will be held to be privileged. Q. What is another general rule on the subject of priv- ileged communications ? A. “Where the defendant has an interest in the sub- ject-matter of the communication, and the person to whom the communication is made has a corresponding interest, the communication is conditionally privileged.” Q. Where a communication is made to strangers, who have no interest in the subject-matter of the same, is it privileged ? A. It is not. It must be made to one having an inter- est. Q. In suits for libel, is it always competent to show that the defendant maliciously uttered the words ? A. It is. Malice may be shown in order to increase the damages. The absence of malice, on the other hand, may be shown, not to bar a recovery, but in mitigation of damages. Q. What is the meaning of malice, in cases of libel and slander ? A. ‘‘Malice means any corrupt motive, any wrong motive or any departure from duty.” The question of whether there was or was not malice is one for the jury. Q. Where one takes advantage of a privileged or con- fidential communication and maliciously assails the char- acter of a party, may he take shelter under privilege ? A. He may not. Q. What is the distinction between general and special damages ? LIBEL AND SLANDER. 865 A. General damages are such as naturally and reason- ably flow from the act complained of, and it is not nec- essary to prove such damages. Special damages are such as are not inferred from the words complained of, but must be alleged and proved. If the words, on their face, must have caused injury to the plaintiff, they are said to be actionable per se; otherwise they are actionable on proof of special damages. Q. When are nominal damages allowed ? A. Nominal damages may be awarded where the plain- tiff fails to show special damages, and all the circum- stances of the case show the absence of malice or ill will. Where the words are actionable per se, the jury may award nominal damages, where it appears that the de- fendant acted in good faith and without malice. Sub- stantial damages may be awarded where the jury, after an honest investigation, concludes that the plaintiff is entitled to compensation. Punitive damages may be al- lowed where no mitigating circumstances are shown, and where it appears that the words were uttered maliciously. Special damages may.be recovered where the words are or are not actionable per se. Q. May the defendant set up the previous bad char- acter of the plaintiff in mitigation of damages ? A. He may; butif he fails to establish his plea the damages ought to be increased. It is a rule where the defendant sets up bad character to confine him to gen- eral reputation, and he will not be permitted to show par- ticular acts. Q. Where defendant is sued for slander or libel, may he show in mitigation of damages that he was honestly mistaken, and that as soon as he discovered his mistake he apologized to the plaintiff and made an open retrac- tion ? A. He may, and if the proof clearly establish the truth of the plea, the jury would be authorized to cut down the damages. If, however, the damage be special, 3866 Law AND PRINCIPLES OF EVIDENCE, plaintiff will be entitled to recover the full amount shown, notwithstanding defendant’s mistake. Q. Where an agent is concerned in the publication of a libel, will he be held liable with the principal ? A. He will. Where the agent acted with his authority and consent the principal will be liable. Q. In the trial of cases of libel, ought the libel to be produced, if practicable ? A. It ought. Where the libelous matter is contained in a newpaper article, it will be sufficient to produce a paper containing it, as where there are many papers printed, none of them are copies in the legal sense of the word, and any of them are admissible to prove the pub- lication. Where the original libel has been lost or destroyed, secondary evidence may be given of its con- tents, and where the libel is in defendant’s possession and he fails to produce it, after notice, secondary evi- dence of its contents may be given. So, also, where the libel is in the possession of a person beyond the jurisdic- tion of the court, or is placarded on a wall, and in like cases, secondary evidence will be received. In cases of slander, the proof may be made by calling the witnesses and showing that the words set forth in the declaration were uttered in their presence and hearing. The court determines whether the words are privileged and whether the privilege was absolute or qualified. The defendant is entitled to have all that was said or written read to the jury, provided it be pertinent and legal. Q. Where there are several persons concerned in the publication of a libel, is the plaintiff bound to sue all of them ? A. He is not, but may sue one or all in the same or in separate actions. Q. May the publisher of a newspaper claim any greater privilege in the matter of publishing a libel than any one else ? A. He may not. ‘‘The owner or controller of a news- LIBEL AND SLANDER. 367 paper has no more right to publish a libel than any one else, nor is he under any obligation to the public that the law recognizes to publish current or common reports for the information and protection of persons interested; but if the publication be true, it may be pleaded in justi- fication, if it was published without any malicious or mischievous motive.” Q. Where one charges another with the commission of a crime, is sued and pleads justification, must he show that the crime was committed beyond a reasonable doubt, or simply by a preponderance of the evidence ? A. He need only show it by a preponderance of the evidence. Q. Before a verdict for damages will be set aside on the ground that it is excessive, what must appear ? A. That the verdict was the result of prejudice, passion or corruption. As to amount of damages recoverable, see Towns- end on L. and S. 534. On mitigation of damages. 11 Am. Dec. 129-132 (note). As to pecuniary standing of defendant. Brown v. Barnes, 39 Mich. 211; 33 Am. Rep. 875. Actual damages, only, recoverable, where publica- tion was not reckless or malicious. Evening News Assn. v. Tryon, 42 Mich. 549; 36 Am. Rep. 450. As to allow- ance of counsel fees. Finney v. Smith, 27 Am. Rep. 524. As to retraction. Evening News Assn. v. Tryon, 36 Am. Rep. 450. See on slander and libel, 2 Greenl. Ev. § 410; Cooley on Torts, §§ 193-221; Abb. Trial Ev. 659-675; Wood’s Mayne on Damages, 656-675; Bigelow L. C. Torts, §§ 158-177; Townsend on 8. and L. 347; Odgers L. and 8S. 36. Publications in newspapers. Snyder v. Fulton, 6 Am. Rep. 314; Gott v. Pulsifer, 23 Am. Rep. 322. Reports by mercantile agencies. Sunderlin v. Brad- street, 7 Am. Rep. 322. Privileged communications. White v. Carroll, 1 Am. Rep. 503; 17 Am. Dec. 194 (note); Ruohs v. Backer, 19 Am. Rep. 598. CHAPTER XI. DOCUMENTARY. Q. What is a document ? A. ‘A document is an instrument on which is recorded, by means of letters, figures or marks, matter which may be evidentially used.” 1 Whart. Ev. § 614. ‘‘ The deeds, agreements, title papers, receipts and other written in- struments used to prove a fact.” Bouv. Law Dict. 442. “‘Public documents are all such records, papers and acts as are filed in the public offices of the United States or of the several states, as, for example, public statutes, pub- lic proclamations, resolutions of the legislatures, journals. of either branch of the legislature, diplomatic corres- pondence communicated by the president to congress, and the like. These are, in general, evidence of the ’ facts they contain or recite.” Greenl. Ev. § 491. ‘‘It is any matter expressed or described on any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used for the purpose of recording that matter.” Steph. Ev. §§ 2-3. Q. Are lithographed words, seals and stones on which: there are writings, considered documents ? A. They are. So also where the writing is on bark or parchment, these are considered documents. Q, What is an instrument ? A. “It includes whatever may be presented to the adjudicating tribunal.” 1 Whart. Ev. § 615. Q. Is it necessary to the validity of a writing that ink should be used ? A. Itisnot. It may be written with a lead pencil or or other thing which impresses on the paper or other substance, the agreement or intention of the party or parties. See Kerr v. Farish, 52 Miss. 101; Rembert uv 368 DocuUMENTARY. 369 Brown, 14 Ala. 360; Willett v. Marston, 62 Me. 477; City Ins. Co. v. Brickner, 91 Penn. St. 488; True v. Bryant, 82 N. H. 241. ’ Q. May letters and telegrams be used as evidence against the persons who sent them ? A. They may. Q. May letters and telegrams sent to other persons, and the replies to such letters and telegrams form the basis of binding contracts ? A. They may, and in these days of rapid transit and easy intercommunication between widely separated sec- tions of the country, most of the contracts relating to commercial transactions are made by means of tele- grams. Q. In questions arising as to the admissibility of tele- graphic dispatches, which is considered the original dispatch ? A. The one which is sent, and the one which is re- ceived is considered as secondary evidence. Mattison v. Noyes, 25 Ill. 591; 1 Thomp. Trials, § 838. Q. Where it is important to prove the sending and delivery of dispatches, what is necessary ? A. First, to show the delivery of the original message at the office, and then show its delivery at the place of destination. Where the original is offered it must be shown to be authentic ; that is, that it is the identical dispatch delivered at the office of the company. If the original be lost, then a copy of the original may be offered, or its contents may be shown. Smith v. Easton, 54 Md. 138-145. .Q How may the delivery of a dispatch be shown ? A. By calling the agent who sent the message and the agent who delivered it. Q. Is the company the agent of the sender of a mes- sage so as to bind him to innocent third persons to whom the company delivers the message ? A. It is so held. Hawley v. Whipple, 48 N. H. 487; 47 870 Law AND PRINCIPLES OF EVIDENCE. Dunning v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. 307; Saveland v. Green, 40 Wis. 731. . Q. How is a contract shown when it was made by means of letters and dispatches ? A. By introducing all the letters or dispatches sent, and all the letters or dispatches received in reference to the terms of the contract. This is necessary in order to show the actual making of the contract, as well as its precise terms. Moore v. Hawks, 56 Ga. 557; Powell Ev. § 380; 1 Whart. Ev. § 617. : Q. Where one writing is offered in evidence, and in the body of the instrument another is particularly referred to and its substance stated, will the admisson of the first carry with it the latter in evidence without further proof ? A. It will, where the first instrument distinctly refers to the latter and sets forth its terms in such a manner as to make it part and parcel of the first. It also carries with it all indorsements made by the holder against his interests, but not such as are made by him in his own interest and to the prejudice of others. Thompson Trials, § 822. The instrument in evidence should clearly identify the other. Hopkins v. Chittenden, 36 Ill. 112; Baldwin v. Wallen, 30 Ga. 829; Satterlee v. Bliss, 36 Cal. 489; 1 Whart. Ev. § 619; Plumer v. French, 22 N. H. 450; Smith v. Chenault, 48 Tex. 455; Jordan v. Pollock, 14 Ga. 145. Q. Where a verbal contract refers to a written one as containing some of its stipulations, will the writing be admitted without proof of execution ? A. When clearly identified it will be. DeWitt v. Pres- cott, 51 Mich. 298, 300, and other authorities cited above. Q. Where a written instrument is admitted in evi- dence, does this carry with it the proof of the signatures of all the parties to it, where no objection is made to its admission ? A. It does; and all indorsements are considered as proven. Thompson Trials, § 823. DOCUMENTARY. 371 Q. What is the rule as to the admission of accounts in’ evidence ? A. The rule is that the admission of accounts having debits and credits admits the whole account as it stands, the credits as well as the debits. Detached portions of the accounts will not be received Q. Where books are received in evidence to prove an account, and the books also contain credits, does the admission of the book prove the credits as well as the debits ? A. It does. Young v. Bank, 5 Ala. 179; Lewis v. Dille, 17 Mo. 64; Dewey v. Hotchkiss, 30 N. Y. 497. Q. Where there has been such an alteration in an instrument as clearly introduces new matter and mars the integrity of the instrument, what should the party who offers it show ? A. He should show that the change was made with the consent of the parties affected by it. See 1 Greenl. Ev. § 564; Lubbering v. Kohlbrecher, 22 Mo. 596; Para- more ». Lindsey, 63 id. 63; Thompson Trials, § 1894. See further on this subject Whart. Cont. 698; Leake Cont. 813. Q. Suppose the change or interlineation is fully ex- plained in the attestation clause ? A. This will be sufficient to admit the paper in evi- dence without other explanation. Taylor Ev. § 1616, et seq.; Lazier v. Westcott, 26 N. Y. 146. Q. Will mere formal alterations, made to correct errors in the written instrument, vitiate it ? A. They will not. Putnam v. Clark, 33 N. J. Eq. 343; Drum v. Drum, 133 Mass. 566; Gist v. Gans, 30 Ark. 285; Allen v. Sales, 56 Mo. 28; Whart. Cont. § 695; Feig v. Meyers, 102 Penn. St. 10. Q. Where it is claimed that the alteration was made with the assent of the other party, who passes on the question ? A. The jury. They also determine by whom it was made, whether it was fraudulent, and whether made 372 Law AND PRINCIPLES OF EVIDENCE. before or after the execution. If the alteration be material it will invalidate the instrument in the hands of an innocent holder, unless there is such gross negli- gence in drawing the paper that the maker himself has put it in the power of the payee to perpetrate a fraud. See Chitty Bills, 182; Nazro v. Fuller, 24 Wend. 374; Trigg ». Taylor, 27 Mo. 245. Where there are grounds for suspicion on the face of the paper it should to be left to the jury to determine whether they ought to have put. a prudent person on notice. Q. Where the alterations are made before the contract is signed and delivered, and are made with the consent of the contracting parties, do they affect the instrument? A. They do not. Taylor Ev. § 1628. Q. Does the rule that material alterations made after the delivery of the instrument vitiate, apply to instru- ments not actually delivered as escrows, marriage settle- ments and bonds? A. It does not. Where the instrument is incomplete and has not been fully executed, alterations may be made before an actual contractual relation exists, by reason of the delivery of the instrument. Q. Where blanks are left in an instrument, and one party agrees at the time of the execution that the other may fill, or that a person named may fill them as agent, may they be filled ? A. They may and the maker will be bound. In such cases where the blanks are filled with a larger sum than that agreed on, and the paper goes into the hands of an innocent purchaser, the maker will be bound. It is held that where the blanks are left in a writing required by law, the authority of an agent to fill must be in writing. Thus, where the grantor of land authorizes certain changes to be made in a deed after its execution and delivery, and delegates the authority to an agent to make the changes, the agent must act by virtue of an authority in writing, which should be attached to the deed so. altered. DocUMENTARY. 373 Where negotiable paper generally is placed by one party in the hands of another to be used by him, and blanks are left, what is the well-established rule? A. ‘‘Beyond all doubt such a party may fill every blank which it is necessary to fill to perfect the instru- ment, and render it operative within its scope and design, if the terms or words of the instrument indicate what that design and scope are.” Brown v. Reed, 79 Penn. St. 376. On the subject of the negligent drawing of instruments, so that frauds may be perpetrated on innocent third persons, see the following authorities: Wallace v. Jewell, 21 Ohio, 163; Sharpe v. Bellis, 61 Penn. St. 69 ; Owings v. Arnott, 33 Mo. 406 ; Britton v. Dierker, 46 id. 591; Schwarz v..Oppold, 74 N. Y. 307; Glover v. Robbins, 49 Ala. 219 ; Hart v. Clouser, 30 Ind. 210; Darwin v. Rippey, 63 N. C. 318. Q. Where the alteration in an instrument is made bya stranger, what is the rule ? A. The rule generally accepted is, that the party in whose custody the instrument was at the time of the alteration must suffer. It rests on the principle, that if by his own negligence he has put it in the power of a stranger to perpetrate a fraud on an innocent person he should pay the penalty. If the alteration be made by accident it does not void the instrument, although material. Taylor Ev. § 1626. Q. What is the rule as to alterations in wills ? A. The ordinary rules do not apply to wills. Slight alterations yield to explanation. Where blanks are left and afterwards filled, the law will presume that the tes- tator filled them before the will was executed. @. Where the alteration is material in a note sued on, and there is no explanation of the alteration, may there be any recovery ? A. There may not. Q. Where the alteration isin the figures of a note, and the amount mentioned in the body of the note is clear, and 874 Law AND PRINCIPLES OF EVIDENCE. there has been no alteration in it, is the alteration material ? A. It is held not to be material. Horton v. Horton, 32 N. W. Rep. 452. Q. Where the name of another is added to a promissory note without the consent of the maker, is this a material alteration ? A. It is held to be material. Q. Where a bond is altered in a material part, and is declared on as altered, may it be received in evidence without any explanation of the alteration ? A. It may, unless a plea of non est factum is filed or a plea denying that the alteration was made with the con- sent of the makers. Thompson v. Gowan, 3 8S. KE. Rep. 910. Q. Where a stranger adds the words ‘‘or bearer” to a note, will such an alteration affect the rights of the parties ? A. Unless done by the consent of one of them it will not. But where it is altered in this way by a stranger with the consent of the payee, it converts a non-negoti- able into a negotiable instrument and has been held moterial. Q. Where there is an indorsement in blank, and the words ‘‘ waive notice and protest” are written over the indorsement, is the alteration material ? A. It is, for it converts a contingent into an absolute liability. Davis v. Eppler, 16 Pac. Rep. 793. Ithas been held in Georgia, that where the holder of a note signed his name as security, and attem.pted to negotiate it, and afterwards erased his name and indorsed it, it was not a material alteration, and not fraudulent. Q. Where the alteration in a note is admitted, by whom must the materiality of the alteration and the intention with which it was made be determined ? A. By the court. Pritchard v. Smith, 77 Ga. 463 DocUMENTARY. 875 Q. Where there are several joint makers of a note, and one of them, without the consent of the others, alters the note materially, are they bound ? A. They are not. Q. What is the presumption as to alterations in deeds ? A. The presumption is, that the alteration was made at the time of execution, and the burden is on the party as- sailing the deed to show the contrary ? Q. How may an alteration in an instrument be shown ? A. It may be shown by any one who saw the alteration made, or who saw the instrument before the alteration, and who will testify to what it then contained. He may swear to what it contained when he saw it; or the altera- tion may be shown by the admissions of the holder. Ex- perts may also be introduced to show that the instru- ment has been altered; that words have been erased and others substituted, or that blanks have been filled. On the other hand the plaintiff may show that the defend- ant has made payments on the note after the date of the alleged alteration, or that he has otherwise recognized the paper as genuine. Where the maker of a note or other instrument leaves blanks which it would be neces- sary to fill in order to make the instrument intelligible, the prima facie presumption is that he consented to its being filled, but no authority to erase words and figures and substitute others will be presumed. ‘‘If any mate- rial alterations, whether apparently advantageous to the holder or not, appear on the face of the paper, or in the indorsements on which the action depends, he should be prepared with at least some evidence tending to explain it. The question whether the alteration is such that the absence of an explanation excludes the paper, is one for the court. If there is nothing suspicious about the altera- tion, it is not error to admit the paper without explana- tion. If there is anything suspicious, the court should require explanation; and the evidence offered for this pur- pose—which may include all the circumstances of its history, its nature, the appearance of the alterations, the 376 Law AND PRINCIPLES OF EVIDENCE. possible or probable motives for the alteration, or against it, and its effect on the parties respectively—ought to be submitted to the jury with the paper itself.” Abb. Tr. Ev. § 406; 1 Greenl. Ev. § 608; 17 Am. Rep. 97 (note); Hewins v. Cargill, 67 Me. 554; Young v. Cook, 30 Miss. 326; Tillou v. Ins. Co., 7 Barb. 564. As to the presump- tion in case of alterations, see Henderson v. McVay, 32 Ala. 470; Corcoran v. Doll, 32 Cal. 82; Meikel vu. Sav. Inst., 36 Ind. 355; Bank ». Murdock, 62 Mo. 70; Taddi- ken v. Cantrell, 69 N. Y. 597; see, also Abb. Tr. Ev. § 406 (note). Q. Will the alteration of an instrument by a stranger avoid it ? A. Where the original instrument can be clearly made out by evidence, it will not avoid it. ‘‘ Whatever the doctrine may once have been, it is now well settled that no one can be deprived of the benefit of any deed, instru- ment, contract or written evidence, merely because the same has in any particular been erased or altered, pro vided that erasure or alteration was made without the consent or knowledge of the party wishing to use the same, and it can be ascertained by any legal method of arriving at the knowledge of that fact, how the instru- ment read before the erasure or alteration.” Smith’s Lead. Cas. 1310; Robertson v. Hay, 91 Penn. St. 242; Nichols v. Johnson, 10 Conn. 192; Bridges v. Winters, 42 Miss. 135. Q. What is the general and well-established rule as to alterations in deeds ? A. It is that “‘an alteration after execution, made by one claiming a benefit under the deed, or by his privy, destroys the deed as to him, and he can never sue on it.” Q. Would the fraudulent alteration of a deed by the grantee after delivery have the effect to divest the title? A. It would not, but where the change is material he cannot maintain a suit for a breach of any of the cove- nants. If the alteration in the deed be material. the rights of the party under the deed will not be affected, DocuMENTARY. 3717 unless the alteration was made with a fraudulent intent. They are immaterial ‘‘ where neither the rights nor inter- ests, duties nor obligations of either of the parties are, in any manner, affected or changed.” In the case of al- _terations in bonds, by which the liability of the obligor is increased, or the terms and conditions of the bond are changed, the obligors are discharged. Q. Where there are alterations or interlineations in a deed or other instrument about which there is a suspic- ious appearance, on whom is the burden to explain them ? A. It is on the party offering the instrument. If, how- ever, there is nothing suspicious on the face of the paper, then where one sets up that it has been altered, the rule is that the burden is on him to establish this fact. Q. Where the makers of a negotiable promissory note place the same in the hands of the payee with the blanks unfilled, what is the rule ? A. It is held that the payee is the agent of the maker for the purpose of filling the blanks, and that as to in- nocent holders the makers will be bound by the act of the payee. The only authority the payee has, however, is to fill the blanks, and the maker will not be bound to innocent purchasers where there are erasures or interlin- eations of such a character as to excite suspicion. One cannot blindly trust to the declarations of the payee where the face of the paper shows suspicious marks. Any other facts may be shown to bring home notice to the holder of the infirmity in the paper. No actual no- tice need be shown. Constructive notice will be held sufficient. Q. Where the material alteration in the note was made before execution, is there any burden on the holder to explain the same ? A. There is not; the rule only applies to alterations made after the execution, and if it appear that the altera- tion was made before the execution, the presumption is that it was made with the consent of the maker. Where the defendant alleges that an alteration has been made 48 878 Law AND PRINCIPLES OF EVIDENCE. in a note or other obligation in writing the burden is on him to show it. Q. Where both parties intended that a note should bear interest, and so contracted, but there was a failure to insert the rate of interest, would it be a material alteration for the holder to insert the rate of interest ? A. It would not be considered a material alteration. Q. Where the maker of a note negligently leaves a blank space in it, so that the amount specified may be easily raised, and it is raised and goes into the hands of an innocent purchaser without notice, will the maker be held liable for the raised amount ? A. On this question there is some conflict of authority. In Maryland, it was held that where the notes were com- plete when they left the hands of the maker, he was not liable for the raised amount because he had left a blank space sufficient to let the words be inserted. Burrows v. Klunk, 17 Atl. Rep. 378; see, also, Andrews v. Calloway, 50 Ark. 358; Black v. DeCamp, 75 Iowa, 105; Am. Dig. (1888) 19, §§ 1, 4; Weaver v. Bromley, 65 Mich. 212; Johnson v. Johnson, 66 id. 525. See on the subject of the alteration of signatures, Heath v. Blake, 28 8. C. 406; Lynch v. Hicks, 80 Ga. 200; Dewees v. Bluntzer, 70 Tex. 406; Singleton v. McQuerry, 85 Ky. 41; Am. Dig. (1889) 62, § 15. Q. On whom is the burden to explain an alteration in an instrument ? A. The burden is on the party offering it. Q. Is the addition of another name to a joint note a material alteration ? A. Itis. Wallace v. Jewell, 8 Am. Rep. 48. Contra. Snyder v. Van Doren, 32 Am. Rep. 739. Q. Is the adding or changing the place of payment a material alteration ? A. It is so held. Whitesides v. Bank, 19 Am. Rep. 74; Toomer v. Rutland, 29 id. 722; Bank v. Lockwood, 31 id. 768. DocuMENTARY. 379 Q. When the words ‘‘ with interest” are added, is it material ? A. It is, and vitiates the instrument. McGrath v. Clark, 15 Am. Rep. 873. Q. Suppose the amount is reduced, is this a material alteration ? A. Itis. Bank v. Shaffer, 31 Am. Rep. 394. Q. Suppose a condition is attached to the note and the same is fraudulently altered ? A. It is material and vitiates. Benedict v. Cowden, 10 Am. Rep. 389 (note). Q. Suppose the payee adds ‘‘after maturity” to the interest clause ? A. It is material and vitiates between the parties. Co- burn v. Webb, 26 Am. Rep. 16. Q. Would adding the words ‘‘to be paid semi-annu- ally ” be a material alteration ? A. It would. Blakey v. Johnson, 26 Am. Rep. 254. Q. Would the erasure of the word ‘‘surety” from the note be material alteration ? A. It would. Laub v. Paine, 26 Am. Rep. 163. Q. Would changing the date vitiate ? A. It would. Wood v. Steele, 6 Wall. 80. Q. Would striking out the words ‘‘as trustee,” from a note on which the makers are liable individually, be a material alteration ? A. It would not. 22 Am. Rep. 179 (note); Hayes v. Matthews, 30 id. 226. Q. Will mere correction in name or date be such an alteration as vitiates the instrument ? A. It will not. Duker v. Franz, 3 Am. Rep. 314; Derby v. Thrall, 8 id. 389. Q. Is addition of ‘‘ annually ” to interest clause of a note payable in less than two years, such an alteration as vitiates ? A. Itis not. Leonard v. Phillips, 33 Am. Rep. 370. 380 Law AND PRINCIPLES OF EVIDENCE. Q. Would detaching the words ‘This note is given on condition,” vitiate where there are no words showing a condition ? A. It would not. Palmer v. Largent, 25 Am. Rep. 479. Q. Would the restoration of added words be ? A. It would not. Palmer v. Largent, 25 Am. Rep. 479; Shepard v. Whetstone, 33 id. 143. , Q. Is the alteration by an agent imputable to the prin- cipal ? A. It is not. Hunt v. Gray, 10 Am. Rep. 232; Langen- berger v. Kroeger, 17 id. 418; Whitmore v. Nickerson, 28 id. 257; Toomer v. Rutland, 29 id. 722. Q. When husband sells wife’s property and alters the note, does this affect the wife? A. It does. Hamilton v. Hooper, 26 Am. Rep. 161. Q. Suppose the note or other instrument is not set forth as the basis of the action, so as to require a denial on oath, must a material alteration be explained before it can be admitted ? A. It must. Wheat v. Arnold, 36 Ga. 479. Q. Will slight evidence of the execution require the judge to submit the question to the jury ? A. It will. Brinkley v. State, 54 Ga. 3738. Q. If blanks be negligently left in a negotiable instru- ment, which can be filled without detection, must the maker respond to an innocent holder ? A. He must. 10 Am. Dec.271 (note); Garrard v. Haddan, 5 Am. Rep. 412; Rainbolt v. Eddy, 11 id. 152; Gillaspie v. Kelly, 13 id. 318, 378 (note); Yocum v. Smith, 14 id. 120; Brown v. Reed, 21 id. 75; Nat. Bank v. Clarke, 33 id. 187. But see Holmes v. Trumper, 7 Am. Rep. 669 (note); Bank v. Bank, 23 id. 129; Dan. Neg. Inst. 694. Q. Is a ratification, by a promise to pay a forged note, valid ? A. It is not. Workman v. Wright, 31 Am. Rep. 549 (note); Shisler v. Vandike, 37 id. 704; 1 Dan. Neg. Inst. DOCUMENTARY. 881 695. As to what alteration will discharge a surety, see Britton v. Dierker, 2 Am. Rep. 553, 598; Neff v. Horner, 3 id. 555. Q. If the instrument be altered by a stranger, in a ma- terial part, without laches of the holder, as when it is stolen, and recovered in its altered condition, will this vitiate the instrument # A. It will not, but the original will be enforced without regard to the change. Q. When a negotiable instrument thus stolen and altered goes into the hands of an innocent person, and such paper has on its face no suspicious appearance, who must suffer ? A. When the maker is in no way to blame for the man- ner in which the instrument was drawn, and the holder was guilty of no laches, the innocent holder can assert his rights under the original contract only; for example, the note was for $500 and was raised to $5,000 under the circumstances stated, the holder could only recover of the maker $500, although the payee, from whom it was stolen, should accept $500 for the note from the innocent holder. Q. What is the rule when the alteration is made through mistake? A. It does not vitiate. Q. Suppose the alteration be material, but with no in- tention to defraud ? A. It does not vitiate. Q. Suppose a non-negotiable note is altered by adding the words ‘‘ or bearer,” and thus altered it goes into the hands of an innocent purchaser ? A. The innocent purchaser may recover although the the holder could not. The maker is really not hurt. Q. Suppose such a note, raised and transferred to an innocent holder, before due and after the insertion of the words ‘‘or bearer,” and the original payee insolvent, who must suffer ? 382 Law AND PRINCIPLES OF EVIDENCE. A. If the maker was negligent in drawing the note, and so carelessly drew it that the alteration might be easily made without raising a suspicious appearance on the face of the paper, some authorities hold that he should pay the full amount. Q. When is an alteration said to be immaterial # A. ‘When it in no way affects the rights of the parties or the legal effect of the instrument.” Greenl. Ev. § 564; Wilde v. Armsby, 6 Cush. 314-318; Steph. Ev. § 127; Simpson v. Davis, 119 Mass. 269, 270; 20 Am. Rep. 324; Boothby v. Stanley, 34 Me. 515-516; Bailey v. Taylor, 11 Conn. 531-541; 29 Am. Dec. 321; Neil v. Case, 25 Kans. 510; 87 Am. Rep. 259. Q. When is it material ? A. When, if it had been made with the consent of the other party, it would have affected his interest or varied his obligations. State v. Berg, 50 Ind. 496-501; Vose v. Dolan, 108 Mass. 153; 11 Am. Rep. 333, et seq.; Steph. By. § 126. Q. When there is an admission under notice to pro- duce papers, does this waive an alteration ? A. It has been so held. Taylor Ev. §§ 639-640. Q. Does the doctrine that material alterations vitiate all contracts, apply to all instruments ? A. To all papers which are the evidence of contracts. Davidson v. Cooper, 11 M. & W. 778. Q. What is the reason for the rule ? A. The first ground is that it is dictated by a wise pub- lic policy. When a person deliberately changes an in- strument in a material point, he takes the risk of losing, and when detected he should pay the penalty. Another reason is, that it tends to protect the integrity of com- mercial paper, without which business intercourse would be seriously crippled by destroyed confidence. Davidson v. Cooper, 11 M. & W. 778; Greenl. Ev. §§ 565, e¢ seq.; Taylor Hv. § 1821. Q. Does the rule apply when a party is not seeking to DOCUMENTARY. 383 enforce the altered instrument or claiming a right under it ? A. It does not. Q. Does the rule apply when the instrument is out of the custody of the party when the alteration is made, and when it is made without his privity ? A. It does not. Raper v. Birkbeck, 15 East, 17; Fer- nandey v. Glynn, 1 Camp. 426; Taylor Ev. § 1828. Q. If a third person fraudulently procures the payee to insert the words ‘‘or bearer” in the note and takes it, even before maturity, may he recover against the maker ? A. He may not. Neither may. The third party is not an innocent holder. Q. Suppose an administrator makes a material altera- tion in a note due his intestate ? A. If made fraudulently the administrator should bear the loss. Q. When a document is offered in evidence, and it is attested, what is the duty of the party offering it ? A. He must, by calling the witnesses, prove it, unless the other party admits it. Watson v. Hopkins, 27 Tex. 637; Sinclair v. Wood, 3 Cal. 98; Owen v. Thomas, 33 Til. 320; Anderson »v. Snow, 8 Ala. 504; Granniss v. Irvin, 39 Ga. 22; Hayden v. Thayer, 5 Allen, 162; Wallace v. Goodall, 18 N. H. 439; Dunlap v. Glidden, 31 Me. 510; Pullen v. Hutchinson, 25 id. 249. Q. Is this rule inexorable ? A. It is; and it applies even to instruments which have been burnt or destroyed, or cancelled. Tyte v. Glode, 7 T. R. 267; Cunliff v. Sefton, 2 Kast, 187; Call v. Dun- ning, 4 id. 53. Q. If the attesting witness becomes blind or is ill at the time, will the court dispense with his attendance ? A. It will not. 384 Law AND PRINCIPLES OF EVIDENCE. Q. Does the purpose for which the paper is offered make any difference ? A. It does not. Q. Are there any exceptions to this rule ? A. There are. Q. State some of the exceptions ? A. When the instrument is thirty years old it is not necessary that the subscribing witnesses be produced. Q. In such case, what must be shown ? A. The paper must be shown to have come from the proper custody, and where the question of possession is involved, possession must be consistent with the paper. It must, on its face, have the appearance of genuine- ness. Q. To what sort of instruments does the exception apply ? A. To deeds, wills, letters, entries, receipts, certifi- cates and all other written documents. 2 Phil. Ev. § 204; Taylor Ev. § 88; Bertie v. Beaumont, 2 Price, 308; King v. Ryton, 5 T. R. 259. Q. On what is the presumption that such a paper was executed properly founded 4 A. “It is founded on the great difficulty, nay, impos- sibility, of proving the handwriting of the party after such a lapse of time.” Q. What is another exception ? A. Another exception is, when the party is required to produce the paper in court, under notice, and fails to do it. In such case proof of execution is dispensed with. Q. What is another exception to the rule? A, When the adverse party, producing the deed under notice, claims an interest under it. As he claims the interest he cannot require the other party to prove its execution. Q. What is meant by “‘ claiming an interest under the deed ?” DOCUMENTARY. 385 A. It refers to an interest in the pending cause. Greenl. Ev. § 571; Taylor Ev. § 1848. Q. Where the law does not require attestation of the instrument, is it necessary to call the witnesses to prove its execution ? A. It is not. There is conflict of authority on this point, however. Q. What is another exception ? A. Where the action is brought against a public officer on an instrument which he was officially bound to take, its execution need not be proved. Q. What is another exception ? A. When the person offering the instrument is unable to produce the subscribing witnesses, as when the wit- nesses are dead, beyond the seas or beyond the process of the court. King v. Eriswell, 3 T. R. 712; Taylor Ev. 8 1851. Q. What is still another exception ? A. When the law permits the instrument to go in evidence without proof of execution on its being re- corded. On the subject of proof of execution being dis- pensed with when paper is brought into court under notice, see Jackson v. Kingsley, 17 Johns 158; Roger v. Hoskins, 15 Ga. 270; Herring v. Rogers, 30 id. 615. Q. May a seal itself prove execution ? A. It may. Q. What is a seal 2 A. ‘A seal isan impression on wax, wafer or some other tenacious substance capable of being impressed.” It is a circular, oval or square mark, opposite the name of the signer, with the letters ‘“‘L. 8.” inside. An impres- sion made on paper. Q. Will the words ‘‘ witness my hand and seal” be of any force without the seal? A. They will not. 49 886 Law AND PRINCIPLES OF EVIDENCE. Q. If there be a seal, but no recognition of it in the body of the instrument, will this avail ? A. It will not. Q. When are shop books admissible in evidence ? A. Asa general rule, shop books are admissible in evi- dence when shown by the oath of the person who kept them that they are the books of original entry, and are correct. They should be submitted to the court for in- spection to show that the books have the appearance of having been properly kept. Q. Do not the different states prescribe different rules for the admission of books of original entry ? A. In some of the states before books of original entry are admitted in evidence to prove the items in an account sued on, the person offering the book must show, by his customers, that he kept correct books, that the books offered are, in fact, his books of original entry, that he kept no clerk, or if he did the clerk is dead or beyond the jurisdiction, and must submit the book to the inspection of the court, so that the court may determine for itself whether the books on their face are free from suspicious appearance, and whether thev appear to have been kept in a business-like manner. Q. If the clerk who sold and delivered the goods, or made the charges for work done, is alive and within the jurisdiction, ought he to be called ? A. He ought; for his evidence would be higher than the book. Q. In states where interest does not disqualify, ought not the tradesman himself be called ? A. If he sold and delivered the goods, he ought. Q. Are the books when received only prima facie proof ? A. When received on the oath of the party such is the rule. Prince 2. Smith, 4 Mass. 455; Funk v. Ely, 45 Penn. St. 444; Howard v. Patrick, 38 Mich. 795; Ander- son v. Ames, 6 Iowa, 486; Landis v. Twiner, 14 Cal. 573; DocUMENTARY. 387 Bower v. Smith, 8 Ga. 74; Ganahl v. Shore, 24 id. 17; Hooker v. Johnson, 6 Fla. 730; Ward v. Wheeler, 18 Tex. 249; Scott vu. Coxe, 20 Ala. 294; Godbold v. Blair, 27 id. 592; Richardson v. Darman, 28 id. 679; Hiss- rick v. McPherson, 20 Mo. 310; Burr v. Byers, 10 Ark. 398. Q. May the books be referred to, to refresh the memory of a witness ? A. They may. Q. In order to the admission of books of original entry must the books be shown to be such, and that the entries were made at or about the time of the transac- tion and in the regular course of business ! A. They must be the original books. Copies will not do. Entries must have been presently made, for if made long after the transaction to which they relate, or the goods were sold and delivered, or the work done, or if the entries have no reasonable connection with the busi- ness of the person making them, they are not within the spirit of the rule. The entries derive their inherent force as evidence from the recency of the entry after the sale and delivery while the facts were fresh in the mind of the person. Q. Suppose the matters be independent, and have no connection with the business ? A. They are not within the rule? An entry, for ex- ample, that the tradesman sold a horse to another on a certain day at a certain price; that he paid so much on his note on a certain day, or that he had paid the interest to date; or that his debtor owed him so much on a lost note, or that he had fully paid off the purchase money for land. All these are independent matters, and have no connection with the business, and are, therefore, out- side the rule. Shoemaker v. Kellog, 11 Penn. St. 310; Karr v. Stivers, 34 Iowa, 123; Bookout v. Shannon, 59 Miss. 378; Veiths v. Hagge, 8 Iowa, 163; Cole v. Dial, 8 Tex. 347; Bank v. Knapp, 3 Pick. 109; Davis ». Sanford, 9 Allen, 216; Harbison v. Hawkins, 81 Penn. St. 142. 388 LAw AND PRINCIPLES OF EVIDENCE. Q. Would another book to which the items in the book of original entry had been transfered be received ? A. It would not. It must be the book of original entry. If it be such, and the other preliminary require- ments are met, this will be sufficient. 1 Whart. Ev. § 682; Dwinel v. Pottle, 31 Me. 167; Godfrey v. Codman, 32 id. 162; Faxon v. Hollis, 18 Mass. 427; Karr v. Stivers, 34 Iowa, 123; Wall v. Dovey, 60 Penn. St. 212; McCormick v. Elston, 16 Ill. 204; Burke v. Wolfe, 38 N. Y. Sup. Ct. 263; Stetson v. Wolcott, 15 Gray, 545; Steph. Ev. §§ 67-68. Q. Would entries made in other books be admissible? A, They would not. Q. Suppose the books offered are blurred or mutilated, and some items are scratched and others interlined with different ink, ought such books to be received ? A. They ought not. Ford v. R. Co., 54 Iowa, 723; Seligman v. Ten Eyck, 53 Mich. 285; Peck v. Von Teller, 76 N. Y. 604; Richardson v. Emery, 23 N. H. 220; Hart v. Livingston, 29 Iowa, 217; Cheever v. Brown, 30 Ga. 904; Hand v. Grant, 13 Miss. 508. Q. What is the object in requiring the entries to be made at or about the time of the transaction ? A. They should be in the nature of res geste. Q. Must the entries relate to the business of the trades- man ? A. They must. Putnam v. Goodall, 31 N. H. 419; Lyon v. Phillips, 106 Penn. St. 57; Somers v. Wright, 114 Mass. 171; Lyman v. Bechtel, 55 Iowa, 437; Bentley v. Ward, 116 Mass. 333; Field v. Thompson, 119 id. 152; Winter v. Newell, 49 Penn. St. 507; Dunlap ». Hooper, 66 Ga. 211. Q. Must it be the book kept for the purpose of making original entries ? A. It must; but anything used for the purpose of mak- ing original entries, whether it be a slate or piece of parchment, or a notched stick, is within the rule. DocuMENTARY. 389 Q. On what ground are books of original entry ad- mitted ? A. On the ground that there is no better or higher evi- dence attainable. Waggeman 2. Peters, 22 Ill. 42; Dod- son v. Sears, 25 id. 513; Sloan v. Ault, 8 Iowa, 229; Slade v. Nelson, 20 Ga. 365; Bracken v. Dillon, 64 id. 243; Shoemaker v. Kellog, 11 Penn. St. 300. Q. When are books of original entry of a deceased per- son admitted ? A. When the books would have been received before his death they will be afterwards, and his administrator or executor, in a suit for work done or goods sold and delivered, may introduce them by furnishing the usual preliminary proof, and by showing on oath that the books came into his hands in the usual course of administration; that the entries are in the handwriting of the deceased, and that they appear to be original and made at the time of the sale or work done, and in the course of his busi- ness. Steph. Ev. § 68; 1 Greenl. Ev. § 118; Kendall ». Field, 14 Me. 30; Bank v. Knapp, 3 Pick 96; 15 Am. Dec. 191. This rule also applies when the party making the entry is beyond the jurisdiction. Welsh v. Barrett, 15 Mass. 880; Hoover v. Gehr, 62 Penn. St. 188; Spence v. Sanders, 1S. C. 119; Nicholls v. Webb, 8 Wheat. 326; Bartholomew v. Farwell, 41 Conn. 107. As to the laws governing the admission of books in the several states, see 1 Smith’s Lead. Cas. 552. Q. When are the books of a corporation received in evidence ? A. When the entries in the books of a corporation are of a public nature and not of a mere private character, the books, when authenticated, may be received to show the existence of a corporation and what proceedings took place at a certain time. Q. When the entries are of a private nature, what is the rule ? A. They will not be received except in contests between members of the corporation. Steph. Ev. § 66; Allen 390 Law AND PRINCIPLES OF EVIDENCE. v. Bank, 5 Whart. 420; Wright v. Oakley, 5 Metc. 408; Duke v. Nav. Co., 10 Ala. 82; 44 Am. Dec. 472; McFarlan v. Ins. Co., 4 Denio, 392-399; Com. v. Woelper, 8 Am. Dec. 628; Angel and Ames on Corp. 679-681. Q. What is really the book of original entry ? A. The day book, in which are entered the loose mem- oranda on the day the goods are sold, is the book of original entry, and the same ought to be produced or accounted for. 1 Whart. Ev. § 682; Breinig v. Meitzler, 23 Penn. St. 156. Q. Suppose the entry is made before the sale is complete, will it be received ? A. It will not. Carr v. Sellers, 100 Penn. St. 169; Rheem v. Snodgrass, 2 Penn. 379. Q. Suppose the employer enters the items at the end of each day as reported to him by the employee in his book, will the book be received ? A. It will. Smith v. Law, 47 Conn. 431; O’Mally v. McGinn, 53 Wis. 353; Taylor v. Tucker, 1 Ga. 231. Q. Suppose the goods sold and delivered by one person and the entries made by another at the same time ? A. The book, in that case, is admissible. Long v. Conklin, 75 Ill. 82; Peters v. Gallagher; 37 Mich. 407. Q. Would the book be admissible when the entry was made once a week ? A. It would. Q. Suppose the entries on the day book, or book of original entry, have been transferred to a ledger, ought the ledger to be produced ? A. It ought. It is held that the ledger thus becomes a necessary part of the transaction. As such books are admitted, from necessity it seems that the party offer- ing the books should be held to a strict compliance with the law. Cory v. Cory, 37 N. J. Hq. 199. Q. Is the rule recognized at common law ? A. It is not. DocUMENTARY. 391 Q. In case the entries made are against the interest of the party making, or as it is sometimes called, self-dis- serving, does it make any difference when they were made ¢ A. It does not. Taylor Ev. § 704. Q. Would the entries be admissible to prove independ- ent matters if they are self-disserving ? Q. They would. A. State the general rule under which entries are re- ceived. Q. ‘‘ Proof ought to be given that the entries were made contemporaneously with the fact which it narrates, and in the usual routine of business by a person whose duty it was to make the whole of it, who was himself personally acquainted with the fact, who had no interest in stating an untruth.’ This is the spirit of the rule. Q. When entries are made by agents, what is the rule? A. Proof of the agency ought to be made. Greenl. Ev. 8 154. As to grounds on which books are admitted, see Slade v. Nelson, 20 Ga, 365. Q. When the books are admitted, and there is no proof that a party kept correct books, ought they to be re- ceived ? A. They ought not. Jones v. Kerr, 30 Ga. 94. Q. Are books of account in all occupations requiring books admissible ? A. When properly shown to be books of original entry, they are. Ganahl v. Shore, 24 Ga. 17. Q. When the party made some of the entries and his clerk the others, are the books admissible to show his entries ? A. They are. McDaniel v. Truluck, 27 Ga. 366. Q. May secondary evidence of the character of build- ings, monuments and other objects which cannot be brought into court, be received ? 392 Law AND PRINCIPLES OF EVIDENCE. A. It may, and maps of places and diagrams may be received, and go to the jury when properly shown to be correct. Blair v. Pelham, 118 Mass. 420; Stuart v. Binsse, 10 Bosw. (N. Y.) 486; Barrett v. Murphy, 140 Mass. 134; Rippe v. R. Co., 28 Minn. 18; Vilas v. Reynolds, 6 Wis. 214; Shook v. Pate, 50 Ala. 91; Thompson »v. Thornton, 50 Cal. 142; Rex v. Watson, 2 Stark. 48. Maps or charts containing matters of public notoriety, such as the relative position of towns and counties, are relevant, and may be received. Steph. Ev. § 66. Q. In order to the admission of maps, charts and dia- grams, what ought to be shown ? A. That they were made by a competent person and that they are correct. Taylor Ev. § 550. Photographs of persons, in some circumstances, and of places, and of handwriting and engravings, may also be received when shown to be correct. Luke v. Calhoun Co., 52 Ala. 115 ; Ruloff v. People, 45 N. Y. 215 ; Udderzook’s Case, 76 Penn. St. 340; Beers» Jackman, 103 Mass 192; 1 Whart. Ev § 676 ; German School v. Dubuque, 64 Iowa, 736; Blair v. Pelham, 118 Mass. 420; Com v. Coe, 115 id. 481; Steph. Ev § 66; Ordway v. Haynes, 50 N H. 159. Q. When matters of public importance are contained in proclamations published in newspapers, are such news- papers received as evidence of the contents of the pro- clamation ? A. When such proclamations are not required to be recorded, they are admissible. Q. May a gazette be received to show that notice of a dissolution of partnership was given, or that sales were advertised according to law, and that other notices re- quired by law were advertised in terms of the statutes. A. It may. Q. In some cases is it not necessary to show that notice was brought home to the person, although the matter was advertised ? DocUMENTARY. 393 A. Itis For example, as to persons who have dealt with a firm, notice of dissolution, although advertised, does not affect them unless it is shown that they had notice. Q. Is it otherwise as to persons who never dealt with the firm ? A. It is, and the advertisement in a gazette of general circulation in the community where the business is carried on, is sufficient. Q. May newspapers be introduced to show the correct prices of staple commodities ? A. They may when properly verified, and it is shown that its issues generally contain the market reports. Peter » Thickstun, 51 Mich. 589; 1 Whart. Ev. § 674; Shelley v. United States, 92 U. 8. 73; Whelan v. Lynch, 60 N. Y. 469; Whitney » Thacher, 117 Mass. 523; Sisson v. R. Co., 14 Mich. 489. Q. Are books of corporations admissible in evidence ? A. They are when properly authenticated, and are prima facie evidence as to members. Q. Are the books of a bank admissible genus a depositor ? A. When sworn to by the proper bank official they are. The books must be verified. Adams v. Coulliard, 102 Mass. 167; Jordan v. Osgood, 109 id. 464; Anderson v. Edwards, 123 id. 273; Ocean Nat. Bank ». Carll, 55 N. Y. 441. As to the admissibility of the books of a corporation when verified, see State v. Thomas, 64 N. C. 74; Weber v. Fickey, 47 Md. 197; Fortin v. Engine, 48 Ill 451; Frank v. Morrison, 58 Md. 423; Merchants’ Bank v. Rawls, 21 Ga. 334; Rayburn v. Elrod, 43 Ala. 700; McHose v. Wheeler, 45 Penn. St. 32 ; Methodist Chapel v. Herrick, 25 Me. 354; Brown v. Bank, 119 Mass. 69. Q. May the books of a corporation be put in evidence like other books of account, as books of original entry? A> They may. 50 394 Law AND PRINCIPLES OF EVIDENCE. Q. May the books of a corporation be put in evidence when they sue or are sued by strangers ? A. They may not for the reason that the officers of the corporation ought to be called. The books are not ad- missible for either party. 1 Whart. Ev. § 662 ; Wether_ bee v. Baker, 35 N. J. Eq. 551; State v. Brown, 64 Md. 201; Chasev R. Co., 38 Ill 215; Ritchie v Kinney, 46 Mo. 298; Union Bank v. Call, 5 Fla. 409; Steph. Ev. 8§ 66-67. Q. May the books of a corporation be used against its members when the entries are self serving? A. They may not. Q. May the book of ordinances of a municipal corpora- tion be used as evidence to show a particular law ? A. It may, when identified and proven. Q. When may parol evidence be received to prove the acts of a corporation ? A. When the corporation refuses to produce its books, or when it was mere matter of routine and not such as is usually recorded. Thayer v. Ins. Co., 10 Pick. 326. Q. May well-authenticated historical, geographical and scientific works, which have been universally recognized as standards, be received as evidence of the facts which they treat ? A. They may. Q. When such works treat of mere private matters, are they admissible to prove facts ? .A They are not. Q. If the author of the book is in life, ought he not to be produced ? A. He ought. McKinnon v. Bliss, 21 N. Y. 206; Mor- ris v. Edwards, 1 Ohio, 524. Q. Is a book published by a private person, relating to facts of recent occurrence, admissible to prove the facts recited ? A. It is not. Whiton v. Ins. Co., 109 Mass. 31. DocUMENTARY. 395 Q. Will the court take judicial notice of past history ? A. It will. Q. Suppose the book or history relates to matters that are out of the memory of living men, may it be received ? A. Where the author is dead it may be accepted for what it is worth. Q. Would a history like Macauley’s or Hume’s History of England be received in evidence to prove facts of an- cient history ? A. It would. Q. Must the facts sought to be proven be of a public nature ? A. They must be. Q. May counsel read books of history and science as parts of their arguments, when the subject-matter of which they treat is relevant ? A. They may. Q. When books are admissible, how are they proven ? A. Like any other fact. Q. When it appears that a work on science is offered and the science is inductive and constantly undergoing change, and it appears that the principles it discusses are unsettled, is it admissible ? A. It is not. It contains mere matter of opinion. Whiton v. Ins. Co., 109 Mass. 24; Com. v. Brown, 121 id. 9; Yoe v. People, 49 Ill. 410; Carter uv. State, 2 Ind. 617; Epps 2. State, 102 id. 539; Huffman v. Click, 77 N. C. 55; Gehrke v, State, 13 Tex. 568; Fowler v. Lewis, 25 id. 381; Ordway v. Haynes, 50 N. H. 159; Broadhead v. Wiltse, 35 Towa, 429; Ripon v. Bittel, 30 Wis. 614; Boyle v. State, 57 id. 472; Merkle v. State, 37 Ala. 139; Tucker v. Donald, 60 Miss. 460. Q. May an expert give the authorites on which he re- lies in support of his evidence ? A. He may. i B96 LAW AND PRINCIPLES OF EVIDENCE. Q. May works that he cites be put in evidence to con- tradict him 4 A. They may. Pinney v. Cahill, 48 Mich. 584; 1 Whart. Ev. § 666. Q. Are books of exact science, such as the Carlisle Tables and Northampton Tables, and all the books which have been universally accepted as accurate, admissible. A. They are; but they only amount to prima facie proof. Gordon v. Tweedy, 74 Ala. 232; Gallagher v. R. Co., 67 Cal. 16; R. Co. v. Crosby, 74 Ga. 736; David v. R. Co., 41 id. 223; Donaldson v. R. Co., 18 Iowa, 280; Sauter v. R. Co., 66 N. Y. 50; Schell v. Plumb. 55 id. 598. Q. May almanacs be puf in evidence ? A. They may. Q. May maps be introduced to show the geography of the country ? A. When authenticated and shown to be of universal use, they may. Q. Must it appear when city maps are offered to show location of street, etc., that they were made by author- ity? A. It must. Powell Ev. § 157. Q. When maps are introduced to establish a private right, or when they are private maps, must they be proven? A. The maps must be proven like any other fact. Mc- Causland v. Fleming, 63 Penn. St. 36; Jackson v. Witter, 2 Johns. 180. Maps may be received to prove boundaries of a county. Powell Ev. § 158. Q. What are public registries ? A. Public registries are certain books, papers or other documents which the law requires to be kept as official records for public use. Q. How distinguished from private registries ? A. It is a public registry when the public generally DOCUMENTARY. 397 have an interest in their contents, and in the preserva- tion of the same. Q. Are they judicial or non-judicial in their character ? A. They are non-judicial. Q. When are such public registries admissible in evi- dence ? A. When the person keeping them is officially bound to do so, and to keep them correctly, or be liable to prose- cution as well as private suit, they are admissible in evi- dence and are prima facie proof of the facts set forth in them. Q. Is it necessary to prove a record so kept, by the oath of the party who keeps it ? A. It is not. Greenl. Ev. § 483; Taylor Ev. § 1429; 1 Whart. Ev. § 639; Croughten v. Blake, 12 M. & W. 208; Kyburg v. Perkins, 6 Cal. 674; Haile v. Palmer, 5 Mo. 403; DeArmond v. Neasmith, 32 Mich. 231; Ronkendorff v. Taylor, 4 Pet. 349, 360. Q. Give examples? A. Books of the different departments of the federal and state governments, and the official documents be- longing to the other public offices; books and official papers in the custom house, in the signal service of the United States; books published by authority of the differ- ent state legislatures showing enlistments during the war of secession. R. Co. v Trayes, 17 Ill. App. 186; Miller wv. Boykin, 60 Ala. 469; Worcester v. Northboro, 140 Mass. 397. Q. Suppose public records are kept by authority of law, are they admissible to show that a party was charged with a certain crime ? A. They are. Q. What is a general rule as to entries when it appears they were made against interest ? A. It is a general rule that when entries are made against interest and the person who made them is dead, 898 LAw AND PRINCIPLES OF EVIDENCE. or when they were made in discharge of a business duty, they are admissible. Q. What is the rule as to entries made by a public officer in books which the law requires him to keep ? A. They are admissible in evidence and are prima facie proof as against strangers. Wakefield v. Alton, 3 N. H. 378; Hayward v. Bath, 38 id. 179; Gilbert v. New Haven, 40 Conn. 102; Chapman v. Herrold, 58 Penn. St. 106; Holcroft v. Halbert, 16 Ind. 256; Hiner v. People, 34 I. 297; Weisbrod v. R. Co., 21 Wis. 602; Soulard v. Clark, 19 Mo. 570; Stroud v. Springfield, 28 Tex. 649; Franklin v. Tiernan, 56 id. 618; Anderson Township v. Thompson, 92 Ind. 556. Q. To what class of registries does the rule apply ? A. ‘‘To the records of a land office; to the plats re- corded in the surveyor-general’s office; the public records of a city showing authority to widen or grade streets; to the book of accounts kept in the office of an alcade; to the alcade’s book of grants; to the record of a court martial; to the record of registered letters in the post office; to the municipal book, kept for the registry of hacks; to the registry of tax sales by the county treas- urer; to the record of redemption of taxes in an audi- ditor’s office; to the record of county supervisors; to poll books; to the tax returns of a deceased person; to tax returns generally.” 1 Whart. Ev. § 640; Ott v. Soulard, 9 Mo. 581; Smith v. Hughes, 23 Tex. 248; Barker v. Fogg, 34 Me. 392; Downer v. Smith, 24 Cal. 114; Brooks v. Daniels, 22 Pick. 498; Com. v. Matthews, 122 Mass. 60; Groesbeck v. Seeley, 13 Mich. 329; People v. Bircham, 12 Cal. 50; Cravens v. Duncan, 55 Ind. 347. Q> When and under what circumstances are the rec- ords of the council of municipal corporations admissible ? A. The proceedings are admissible in evidence against the corporation. Saxton v. Nimms, 14 Mass. 315; Bridge- water v. West Bridgewater, 7 Pick. 191; Isbell v. R. Co., 25 Conn. 556; People v. Zeyst, 23 N. Y. 140; Waln v. DOCUMENTARY. 899 Philadelphia, 99 Penn. St. 330; Monaghan v. School Dist., 38 Wis. 101; Gas Co. v. St. Louis, 84 Mo. 202. Q. What is further necessary to make such records admissible ? A. The records must be made by authority of law, by a person authorized to record, and whose duty it was to record, and the records should be kept by the proper officer. Gurney v. Howe, 9 Gray, 404; Smith v. Law- rence, 12 Mich. 481; Haile v. Palmer, 5 Mo. 403; Tram- mell v. Thurmond, 17 Ark. 203; Hatchett v. Conner, 30 Tex. 104; Allen ». Vincennes, 25 Ind. 531. Q. Suppose it is desirable to introduce the ordinances of a city in evidence to prove certain facts, what ought to be shown ? A. It must be shown that the book or pamphlet con- taining them came from the proper custody, and it must be properly identified. Foxcroft v. Crooker, 40 Me. 308; Bean v. Smith, 20 N. H. 461; Welles v. Battelle, 11 Mass. 477; Franey v. Miller, 11 Penn. St. 434; Downer v. Smith, 24 Cal. 114; Sanborn v. School Dist., 12 Minn. 17; Hen- derson v. Casiano, 7 Tex. 322. Q. Are pencil memoranda or records admissible? A. They have been held inadmissible. Fail v. Presley, 50 Ala. 342. Q. Must the registry show on its face that it is accu- rate ? A. It must. Q. What presumption is there as to regularity ? A. If there be no suspicious appearances on the face of the record, the presumption is that it is regular. Sum- ner v. Sebec, 3 Greenl. 223; Isbell v. R. Co., 25 Conn. 556; Byington v. Allen, 11 Iowa, 3. Q. In all such cases must the record be primary evi- dence? A. It must, for if it be secondary evidence it will not be received. 400 Law anp PrincIPLES OF EVIDENCE. Q. Are books and registers kept by deceased persons and public institutions admissible ? A. They are. 1 Whart. Ev. § 647; Sisson v. R. Co., 14 Mich. 497; DeArmond v. Neasmith, 32 id. 231-233. Q. Suppose it is desirable to prove the temperature of the weather on a certain day ! A. Then the records in the office of the weather bu- reau are admissible for that purpose when properly iden- tified. Q. What is the general rule touching the admission of public registries to prove certain facts ? A. Where the law requires them to be kept, and they are shown to have come from the proper custody, are fully identified, and properly attested, they are admissi- ble to prove such facts as the law requires to be regis- tered. Gleen v. Gleen, 47 Ala. 204. Q. Is it well enough to call the person who made the entries? A. This should be done, and if he be dead, it is best to show that the entries were made by him in the discharge of his duty. Q. What facts do registries prove ? A. Only such facts as the law requires to be registered, and such as it was the duty of the writer to record. Whitcher v. McLaughlin, 115 Mass. 167; Derby 2. Salem, 39 Vt. 722; Morrissey v. Ferry Co., 47 Mo. 521. Q. When the law requires marriages and births to be recorded, are the registries admissible to prove the date: of birth and of marriage ? A. They are. Q. Suppose the law requires a clergyman who marries a couple to return the certificate to the county clerk or ordinary, how are such facts proven # A. By an exemplification of the certificate. Q. Do corporations act under seal? A. At common law all corporations in the making of DocuMENTARY. 401 contracts and in all transactions which were required to be in writing, had to affix the corporate seal in order to the validity of the document. Q. Is such the requirement in this country # A. It is not, and as a general rule a corporation may make any contract, or enter into any obligation without the corporate seal, which a private individual could do. Q. Through whom does the corporation act ? A. It acts through its chosen officers and it is bound by his actings and doings, when his acts are within the scope of his authority. Q. How otherwise may corporations be bound ? A. By the orders of the board of directors, or by the orders of their chosen agents. Q. In the sale or transfer of real estate, must the cor- poration use a seal ? A. It must. In such matters they are governed by the same laws as private persons. Bank v. Dandridge, 12 Wheat. 68; Maine Co. v. Longley, 14 Me. 444; Bank wv. Macomber, 29 id. 564; Peterson v. Mayor, 17 N. Y. 449; Ang. & Ames Corp. § 238; Whart. Agency, § 59; Taylor Ev. § 128. Q. Does a public seal prove itself ? A. It does. Q. Where a writing has a public seal attached, is it the duty of the court to hold that it is genuine ? A. It is until the contrary appear. 1 Whart. Ev. § 695; Stephens v. Williams, 46 Iowa, 540. Q. Maya party bind himself by simply making his mark? A. He may. It should appear, however, that he made the mark, or that some one made it at his request: that he could not, write and the making of the mark was at- tested by a witness. It should also appear that he was familiar with the contents of the document. Q. Ought there to be alzwnde proof that the party made his mark ? 51 402 Law AND PRINCIPLES OF KVIDENCE. _ A. There ought. Ballinger v. Davis, 29 Iowa, 512; Hays v. Hays, 6 Penn. St. 368. Q. Would the fact that a party could write who made his mark vitiate the document ? A. It would not; and while thé instrument should be attested, still if it can be shown that he made his mark, this will be sufficient. Q. Ought the attesting witnesses to be called ? A. They ought. Q. What is the rule as to the execution of documents ? A. When a party offers a document in evidence it must appear that it was executed according to the law of the place where made. Q. Is the foreign law presumed to be the same as the domestic as to the mode of executing instruments ? A. It is. Q. Who is to determine whether the instrument was executed according to the lex loci contractus ? A. The judge. Q. Is it not held that an instrument executed in any state, disposing, by will, of real estate in another, must be executed according to the lex loci ret sitce ? A. It is. Q. Must documents disposing of real estate be executed according to the lex loci rei site ? A. They must. Q. Suppose it is sought to introduce a document exe- cuted by an agent ? A. Then the authority of the agent should be shown. Goodwin v. Jack, 62 Me. 414; Willets v. Mandelbaum, 28 Mich. 521; Johnson v. Shaw, 41 Tex. 428; Atkinson v. St. Croix, 24 Me. 171; Trull v. True, 33 id. 367; Emer- son v. Providence Co., 12 Mass. 237; Lamb »v. Irwin, 69 Penn. St. 436; Bank v. Bank, 36 Md. 5; Carnell v. Duvall, 22 Ark. 136; Gashwiler 2. Willis, 33 Cal. 11. DocUMENTARY. 403 Q. What is the rule as to documents over thirty years old ? A. When fair on their face and coming from the proper custody, they prove themselves. When they apply to real estate possession they must be consistent with the document offered. Q. How, may handwriting be proven ? A. By the admission of the party, or by persons who are familiar with his writing, or by comparison of a writing admitted to be genuine, with the writing in ques- tion. Experts may be called to compare the hands and testify. Q. May the party whose handwriting is in question be called on to write ? A. In some jurisdictions he may. Q. Is this method of determining handwriting open to serious objections ? A. It is. Q. May a person testify to the handwriting from see- ing another write ? A. He may. Rideout v. Newton, 17 N. H. 71; Hoitt v. Moulton, 21 id. 386; Bowman v. Sanborn, 25 id. 87; Magee v. Osborn, 32 N. Y. 669; Hammond v. Varian, 54 id. 398; Board v. Meisenheimer, 78 Ill. 22; State wv. Gray, 94 N. C. 314; Strong v. Brewer, 17 Ala. 706. Q. Where a witness testifies from a comparison of hands, must the original writing from which he draws his opinion be clearly identified ? A. The writing should be identified and shown to be genuine. Cochran v. Butterfield, 18 N. H. 115; Mc- Keone v. Barnes, 108 Mass. 344; Com. uv. Coe, 115 id. 481; Cunningham v. Bank, 21 Wend. 557. Q. Will any testimony which tends to prove the genu- ineness of the handwriting in question be excluded ? A. It will not. Q. If a witness is objected to as incompetent, on whom 404 Law AND PRINCIPLES OF EVIDENCE. is the burden to show incompetency after a prima facie acquaintance with the handwriting is shown ? A. The burden is on the party objecting. Henderson v. Bank, 11 Ala. 855; Moon v. Crowder, 72 Ala. 79; Foye uv. Patch, 132 Mass. 105; Herrick v. Swormley, 56 Md. 439. Q. Where a witness has testified to handwriting from comparison of hands, may he be examined as to other writings to test his familiarity ? A. He may. Q. Where a party is examined as to his own hand- writing, is he entitled to examine the whole writing before answering his own signature ? A. He is. Q. Are there many American authorities which hold that a witness may not testify from a comparison of hands? A. There are. See Randolph v. Loughlin, 48 N. Y. 456; Goodyear v. Vosburgh, 63 Barb. 154; Penn R. Co. ». Hickman, 28 Penn. St. 318; Berryhill v. Kirchner, 96 id. 489; Miller v. Johnson, 27 Md. 6; Herrick v. Swormley, 56 id. 439; Yates v. Yates, 76 N. C. 143; Kerwin vw Hill, 37 Ill. 209; Brobston v. Cahill, 64 id. 356; Chance v. R. Co., 32 Ind. 472; Burdick v. Hunt, 43 id. 381; Jones o- State, 60 id. 241; Hazzard v. Vickery, 78 id. 64; Hazleton ov. R. Co., 32 Wis. 34; Hanley v. Gandy, 28 Tex. 211; Matlock v. Glover, 63 id. 231. Q. Where the writing of the party is already in court, may this be resorted to to prove genuineness ? A. It may. Randolph 2. Loughlin, 48 N. Y. 458; Brob- ston ». Cahill, 64 Ill. 358; Henderson v. Hackney, 16 Ga. 521; Williams v. Drexel, 14 Md. 566. Q: Was this rule, allowing comparison of handwrit- ings, an exception at common law ? A. It was. Ifa writing of the party whose handwrit- ing was in question had already been received in evi- dence, then a comparison of the doubtful with the genuine was allowed. DOocUMENTARY. 405 Q. What is the almost universal rule in the United States ¢ A. It is that the doubtful writing may be compared with the genuine. Homer v. Wallis, 11 Mass. 309; Mc- Keone v. Barnes, 108 Mass. 344; Com. v. Williams, 105 id. 62; Com. v. Nefus, 135 id. 5383; Peck v. Callaghan, 95 N. Y. 73; Macomber v. Scott, 10 Kans. 338; Haycock v. Greup, 57 Penn. St. 488; Van Sickle v. People, 29 Mich. 61; Moody v. Rowell, 17 Pick. 490. See different author- ities cited in 1 Whart. Ev. § 714. Q. Ought the standards by which the comparison is made to be established by clear and undisputed proof ? A. They ought. 1 Greenl. Ev. § 581; McKeone v. Barnes, 108 Mass. 344 Q. May press or photographic copies be used as standards ? A. They may not, unless they are clearly shown to be fac similes. Van Sickle v. People, 29 Mich. 61; Tome v. R. Co., 39 Md. 90-91-93; Com. v. Allen, 128 Mass. 46. Q. Is there any well-founded reason for excluding comparison of hands ? A. There is not. Q. May experts be called to determine the genuine- ness of a handwriting? A. They may, and they may give opinions as to whether the writing be genuine by comparing hands. Demerritt ». Randall, 116 Mass. 331; Withee v. Row, 45 Me. 571; Goodyear v. Vosburgh, 63 Barb. 154; Dubois v. Baker, 30 N. Y. 355; Yates v. Yates, 76 N. C. 142; Jones v. Finch, 37 Miss. 461; Wilson v. Beauchamp, 50 id. 24; Clay v. Robinson, 7 W. Va. 348; Kowing v. Manly, 49 N. Y. 193. Q. May they give their opinions as to all the suspic- ious appearances on the face of a paper, as well as al] the appearances of genuineness ? A. They may, and may go into all the details and minutiae. Q. May photographers be examined as experts ? 406 Law AND PRINCIPLES OF HVIDENCE. A. They may. Reddin v. Gates, 52 Iowa, 116; Com. v. Allen, 128 Mass. 46; Tome v. R. Co., 39 Md. 36. Q. Ought expert testimony to be received with cau- tion ? A. It ought. Q. May any matter which is merely collateral to the writing be shown, without calling the attesting wit- ness ? A. It may. Nor is it necessary to call the attesting witness to prove a fact which is preliminary to the proof of attestation. Kitchen v. Smith, 101 Penn. St. 452; Ayers v. Hewett, 19 Me. 281; 1 Whart. Ev. § 724. Q. What is the general rule as to calling the attesting witnesses to a writing ? A. Where the law requires attesting witnesses they should be called. The rule is said to be inexorable. Minard v. Mead, 7 Wend. 68; Morgan v. Patrick, 7 Ala. 185; White v. Holliday, 20 Tex. 679; Forsythe v. Hardin, 62 Ill. 206. Q. Suppose it be impossible to produce the witness or to have his interrogatories in court, as where the witness is dead or beyond the jurisdiction? A. Then the handwriting of the attesting witness may be shown. 1 Greenl. Ev. § 118; Gould v. Kelley, 16 N. H. 551; Beattie v. Hillard, 55 id. 436; Ballinger v. Davis, 29 Iowa, 512; Davis v. Higgins, 91 N. C. 382; Howell v. Ray, 92 id. 510; Foote v. Cobb, 18 Ala. 585; Clardy v. Richardson, 24 Mo. 295; McGarrity v. Byington, 12 Cal. 426; Teal v. Sevier, 26 Tex. 516; Elliott v. Dycker, 78 Ala. 151. If the witness cannot be found after diligent search, secondary evidence will be received. Lansing v. Chamberlain, 8 Wend. 620; Brown v. Hicks, 1 Ark. 232; Spring v. Ins. Co., 8 Wheat. 269; Van Duyne v. Thayre, 19 Wend. 162; Tams v. Hitner, 9 Penn. St. 441; Landers v. Bolton, 26 Cal. 393; Holman v. Bank, 12 Ala. 369; De long v. Delong, 24 Ark. 7. Q. When the witness lives out of the state, is he con- DOCUMENTARY. 407 sidered beyond the process of the court for the purpose of admitting secondary evidence ? A. He is. 1 Greenl. Ev. § 572; Beattie v. Hilliard, 55 N. H. 436. Q. If there are two attesting witnesses, and one of them is alive, must he be called ? A. He must, although the other is living and beyond the process of the court. Q. May the signature of the dead or absent witness be shown by secondary evidence, so long as the living one can be produced ? A. It may not. Simpson v. Simpson, 93 N. C. 373; Angier v. Howard, 94 id. 27; Mardis v. Shackleford, 4 Ala. 493; Waldo v. Russel, 5 Mo. 387; Howard ®. Snelling, 32 Ga. 195. Q. Now suppose both witnesses who attested the paper are dead, or that it is impossible to produce them, what is the next step? A. The person offering the paper should prove the hand- writing of the attesting witnesses, and for this purpose may call any person who will swear to their handwriting. Stebbins v. Duncan, 108 U. S. 32; Quimby v. Buzzell, 16 Me. 470; Dudley v. Sumner, 5 Mass. 488; Howard v. Snelling, 32 Ga. 195: Foote v. Cobb, 18 Ala. 585, and other authorities cited above. Q. Is the proof of the handwriting of the witness suffi- cient without proving that of the party 4 A. It is. McPherson v. Rathbone, 11 Wend. 96; Peo- ple v. McHenry, 19 id. 482; Brown v. Kimball, 25 id. 259; 1 Whart. Ev. § 727. Q. As a general rule, may the handwriting of the party be proven until an effort has been made to prove the handwriting of the witnesses ? A. It may not. Q. If it is impossible to prove that of the witnesses, may the handwriting of the party be shown ? A. It may. As to the necessity of proving the signa- 408 Law AND PRINCIPLES OF EVIDENCE. ture of the party when the attesting witness signs his mark, see Watts v. Kilburn, 7 Ga. 356. Q. If neither of the attesting witnesses can be produced, nor the handwriting proven, then what may be shown ? A. Secondary evidence may be received showing the admissions of the party. Q. Will sickness of attesting witness excuse the proof of execution by the witnesses ? A. It will not let in proof of his handwriting; his in- terrogatories should be taken. Q. What is the rule when the law requires several at- testing witnesses ? A. They ought all to be called. Q. If there are two attesting witnesses and the law does not require but one, may the execution be proven by one without calling the other? A. It may. Q. Where the local law provides that an instrument properly recorded dispenses with proof of execution, is it necessary to call the attesting witness ? A. It is not. Morris v. Wordsworth, 17 Wend. 103; People v. Denison, id. 312; Samuels v. Burrowscale, 104 Mass. 207; Simmons v. Havens, 101 N. Y. 427; Bell v. McCawley, 29 Ga. 355; Doe v. Roe, 36 id. 463; Clark v. Troy, 20 Cal. 219; Smith v. Hughes, 23 Tex. 248. Q. In order to admit a deed or other instrument with- out proof of execution, must all the formalities of the statute be complied with as to recording ? A. They must; and it must fully appear that the paper was legally put on the record. Q. May the instrument be recorded at any time before it is offered in evidence ? A. It may. Q. When there is no statutory regulation must the exe- cution be shown ? DOocUMENTARY. 409 A. It must. Ravisses v. Alston, 5 Ala. 297; Catlin v. Ware, 9 Mass. 218; Eichelberger v. Sifford, 27 Md. 320. Q. Is an instrument properly attested according to law prima facie evidence of the facts set forth in it? A. It is. Williams v. Baker, 71 Penn. St. 482; Duff v. Wynkoop, 74 id. 300; Hecter v. Glasgow, 79 id. 79; Mid- dleton v. Dubuque, 19 Iowa, 467; 1 Whart. Ev. § 741. Q. May delivery of an instrument be inferred from the fact that it is legally attested ? A. It may. Q. Is it necessary that the attesting witness should ‘swear that he saw the party sign his name, or that he remembers the circumstances ? A. Itis not. If he will swear that the attestation was made by him, or that he would not have witnessed the execution if the party had not signed it, this will be sufficient. Russell v. Coffin, 8 Pick. 146; Ballard v. Perry, 28 Tex. 347; Bennett v. Fulmer, 49 Penn. St. 155. Q. When the signature of the attesting witness is sworn to by him, may other evidence be received as to the genuiness of the maker’s signature ? A. It may. Q. Where the adverse party refuses to produce a paper, need the attesting witnesses be called ? A. It is not necessary. Q. When a document is lost, ought they to be called ? A. They ought; but when they cannot be found, are dead, or beyond the process of the court, other evidence may be used. .Q. When notice is given to produce a deed, and the party producing it claims an interest under it, is it necessary to call the witnesses ? A. Itisnot. Herring v. Rogers, 13 Ga. 615; McGee v. Guthry, 32 id. 307. Q. Suppose the party producing has no interest in the deed and claims none? 42 410 Law AND PRINCIPLES OF EVIDENCE. A. Then proof of execution must be made. Burghart v. Turner, 12 Pick. 534. And further on these questions, see McGregor v. Wait, 10 Gray, 72; Jackson v. Kings- bury, 17 Johns. 157; 1 Whart. Ev. § 736. Q. Is the seal of a corporation proof of execution. A. It is not. Corporations can make contracts like private individuals, and the execution should be shown in the same way. Q. As to instruments which are over thirty years old, and coming from proper custody, and which are fair on their face, and where possession is consistent therewith, is proof of execution necessary ? A. Not necessary to prove execution. 1 Phil. Ev. 276; Rust v. Corporation, 6 Pick. 158; Nixon v. Porter, 34 Miss. 697; Clark v. Wood, 34 N. H. 447; Bank v. Rut- land, 33 Vt. 414; Shanks v. Lancaster, 5 Gratt. 110; Winston v. Gwathmey, 8 B. Mon. 19. Q. When a will is over thirty years old, will it be received in evidence without proof of execution ? A. It will. Q. Will not the court sometimes grant to one party the right to inspect papers in the power, custody and con- trol of another party ? A. It will when it is made to appear to such court that the inspection is necessary to maintain a right or defend against a wrong. Q. What steps should be taken in order to secure the inspection of the paper ? A. He must show by affidavit or otherwise, that he has a legal or equitable interest in the document, and that the relations between the applicant and the holder of the paper are of such a character as that the docu- ment is, in some sense, in the hands of the holder as trustee for the applicant. Cocks v. Nash, 9 Bing. 723; Smith v. Winter, 3 M. & W. 309; Blogg v. Kent, 6 id. 615. Q. Suppose the papers have been placed by both parties DocuUMENTARY. 411 in the hands of a third party, will the court grant an order to either of them to inspect ? A. It will. Q. Will courts grant orders to inspect public docu: ments when there is no law requiring the keeper of them to exhibit? A. They will, when the matters sought are pertinent and contain no public secrets. Q. Will the courts grant to a member of a corporation an order to inspect the books of a corporation # A. They will, on proper showing that such inspection is necessary. Q. May other public officers be required to exhibit their books, such as custom house officers, postmasters, and revenue officers ? A. They may. Q. Must the applicant have an interest in the docu- ments ? A. He must. Q. When the court orders an inspection of a private document, will the document be impounded ? A. It will not, but the party will simply be permitted to inspect. Q. Where the document is privileged, or its contents would tend to criminate the holder, will the court compel an inspection ? A. It will not. 1 Whart. Ev. § 751; Rex v. Purnell, 1 Wm. Bl. 37; Taylor Ev. § 1351. Q. Will an attorney be compelled to surrender a privileged document ? A. He will not. CHAPTER XT. ADMISSIONS. Q. Are admissions, strictly speaking, evidence ? A. They are not. ‘It isa mere waiver by one party of his right that the other party should be required to prove a particular fact.” 2 Whart. Ev. § 1075. Admis- sions are things to be proven, and not so much a mode of proving things. Id. 1075. Q. Are admissions, made with a view to compromise, admissible evidence ? A. They are not. The rule rests on the favor with which the law regards amicable adjustments. 1 Greenl. Ev. § 270; Saunders v. McCarthy, 8 Allen, 42; Gay wv. Bates, 99 Mass. 263; Durgin v. Somers, 117 id. 55; Draper v. Hatfield, 124 id. 53; Reynolds v. Manning, 15 Md. 510; Paulin v. Howser, 63 Jil. 312; Barker v. Bush- nell, 75 id. 220; Dailey v. Coons, 64 Ind. 545; Munshink v. R. Co., 57 Iowa, 718; Campau v. Dubois, 39 Mich. 274; Richards v. Noyes, 44 Wis. 609; Keaton v. Mayo, 71 Ga. 649; Williams v. State, 52 Ala. 411; Jackson v. Clopton, 66 id. 29; Ferry v. Taylor, 33 Mo. 323. Q. Suppose that while propositions of compromise are being discussed, one of the parties admits a fact, and does so ‘‘ without prejudice,” may such facts be given in evidence ? A. They may not. Q. If there be no reservation, however, and the fact is admitted unconditionally, may it be used in evidence ?. A. It may. Cole v Cole, 33 Me. 542; Hamblett v. Hamblett, 6 N. H. 333; Eastman v. Amoskeag, 44 id. 148; Durgin v. Somers, 117 Mass. 55; Arthur v. James, 28 Penn. St. 236; Cates v. Kellogg, 9 Ind. 506; Ashlock v. Linder, 50 Ill. 169; Campau v. Dubois, 39 Mich. 274; Mayor v. Howard, 6 Ga. 218; Garner v. Myrick, 30 Miss. 412 ADMISSIONS. 413 448; Short Mountain Co. v. Hardy, 114 Mass. 197; Moly- neaux v. Collier, 13 Ga. 406; White v. Steamship Co., 102 N. Y. 660. Q. When a letter is written, offering compromise, is any part of the letter admissible ? A. It is not.. Q. On what grounds are dying declarations received ? A. It is on the ground that a person of sound mind and fully conscious of impending dissolution, when every possible motive to speak falsely is gone and every inducement to speak the truth is present, will not know- ingly misrepresent the facts. It is supposed by the law that such solemn circumstances create an obligation equal to an oath. Taylor Ev. § 625; Greenl. Ev. § 165; Stobart v. Dryden, 1 M. & W. 626. Q. Are dying declarations receivable in evidence ex- cept in criminal cases ? A. They are not. Q. To what class of criminal cases are they restricted ? A. To cases of homicide. Q. On what peculiar grounds are dying declarations restricted to cases of homicide ? A. Generally, on the grounds that if the door were thrown wide open and such declarations were received in all cases, that the temptations to commit perjury would be dangerously multiplied without any corres- ponding advancement of the cause of justice. Many persons, from interested motives, would take advantage of so liberal a rule of evidence, and frame their stories to suit the circumstances of the particular case. Espe- cially would this be the case when the witness repro- ducing the dying declarations was the only person present when the alleged dying declarations were made. Q. Are there not other reasons ? A. There are. A person in articulo mortis, or tortured with physical suffering, and while actually in the gloom and shadow of death, and whose senses may be im- 414 Law AND PRINCIPLES OF EVIDENCE. paired by disease or stupefied by narcotics, is not likely to have a clear and distinct perception of the facts of a transaction. Q. Must it be shown that such declarations were made under a conscious sense of impending death ? A. The person must believe that he is then dying, or will shortly die, of the injury from which he suffers. He need not presently die to make the declarations ad- missible. He may live for weeks, yet if he believes that death will surely and shortly come, his declarations will be received, if relevant. Q. If the declarations would be inadmissible if living, on account of irrelevancy, infancy or imbecility, will they be held inadmissible as dying declarations ? A. They will. The fact that they are dying declara- tions does not change the inexorable rule that evidence must be relevant. Q. Will the dying declarations of a wife be received against her husband, and vice versa ? A. Where the husband is charged with the murder of the wife, or the wife with the murder of the husband, the dying declarations will be received. Q. Ought not dying declarations to be received with great caution ? A. They ought, for the very plain reason that the per- son relating them may not have understood the dying man, may not repeat his language in 7¢psissimis verbis, may transpose words and sentences, and thus convey a very different meaning from that intended by the de- clarant. Besides, the party against whom they are offered has no opportunity to cross-examine the dead witness. If he could do this, he might be able to show important facts to explain the criminating facts testi- fied to. Q. Is it necessary to show that the person whose dying declarations are offered, stated at the time he made them that they were made in view of death ? ADMISSIONS. 415 A. Itis not. All that is necessary is to show that he made them under that solemn sanction. Q. If it be shown that his attending physician told him that he must surely die, that he understood him and acted in such a manner as clearly to indicate his belief in im- pending death, would this be sufficient ? A, It would. Q. Who must pass on the question as to whether declarations should be received ? A. The court. Q. May the time elapsing between the declaration and the death be shown ? A. It may be shown as a circumstance to illustrate whether the declarant believed that death was imminent at the time. Q. If the declarant had the slightest hope of recovery at the time the declarations were uttered, ought they to be received ¢ A. They ought not, although he died within a few minutes thereafter. He must believe that death is cer- tain. Q. Ought mere opinions or conclusions of the declarant to be received ? A. They ought not. If the evidence would be ex- cluded for irrelevancy if the party were living, it ought to be excluded although coining in the shape of dying declarations. Q. Ought the declarations to come from the lips of the declarant ? A. They ought. No statement written out by another and assented to by the declarant will be received. If written as it comes from the lips of the dying man, it should be received; but no one has a right to propose a statement and then ask the declarant if it be correct. The words must come straight to the court as they were uttered by the declarant, either through one who heard them and will state that he remembers the language 416 Law AND PRINCIPLES OF EVIDENCE. used, or through one who will swear that he took down the words as they were uttered. Q. May either side offer the declarations ? A. Yes. Q. Ought the dying declaration to be complete in itself ? A. It must, and when it clearly appears that the dying man did not finish his statement, or wished to qualify what he had stated, or explain it, and was prevented, it would be extremely unjust to the accused to allow a part of the statement to go in evidence. Taylor Ev. § 681. Q. If the dying person makes a written statement, ought the writing to be produced ? A. It ought. Q. Are dying declarations of belief admissible ? A. They are not (McPherson 2. State, 22 Ga. 478), nor are dying declarations of opinion. Mayor v. Cabott, 28 Ga. 50. Q. Will the dying declarations of a minor daughter as to who seduced her be received ? A. They will not. Wooten v. Wilkins, 39 Ga. 223. On the subject of dying declarations and their admissi- bility, see Whart. Cr. Law, § 669; 1 Greenl. Ev. §§ 156- 162; Powell Ev. § 79; State v. Patterson, 12 Am. Rep. 200; Brown v. Com., 13 id. 470; Swisher v. Com., 21 id. 330; 1 Hawley Cr. Rep. 309; 2 id. 278, 282, 322; State v. Harper, 35 Am. Rep. 596; State v. Trivas, 36 id. 293; State v. Wilson, 36 id. 257; People v. Hodgdon, id. 30; Binus v. State, 26 id. 48; State v. Draper, 27 id. 287; 1 Bish. Cr. Pro. § 1207. Q. Are admissions and confessions exceptions to the rule, excluding hearsay evidence ? A. They are. Q@. Why are admissions and confessions presumed to. be true ? A. Because it is but a dictate of sound reason to pre- sume that no sane man would admit or confess a fact to ADMISSIONS. 417 be true unless it were true. Admissions, which to be re- ceived must be self-disserving, afford the strongest sort of presumption. Q. On what other grounds are admissions received ? A. Sometimes they are part of the res geste of a trans- action, and sometimes they are offered against a person with whom the person making them is in privity. Q. To what do admissions refer ? A. To civil cases. Q. To what do confessions refer ? A. They refer to criminal cases. Q. How are extra-judicial admissions divided ? A. They are divided into contractual and non-con- tractual admissions. Q. Are contractual admissions generally conclusive on the party making ther, or, in other words, is he es- topped from denying them ? A. They are. Q. How as to non-contractual admissions ? A. They are not conclusive, are only prima facie evi- dence, and are open to rebuttal. Hamilton 0. Paine, 17 Me. 219; Plummer v. Currier, 52 N. H. 287; Abbott 2. Andrews, 130 Mass. 145; Kutz’s Appeal, 100 Penn. St. 75; R. Co. v. Rauck, 78 id. 454; Black ». Lamb, 12 N. J. Eq. 108; Gidney v. Moore, 86 N. C. 484; State v. Pratt, 88 id. 630; Harvey ». Anderson, 12 Ga. 69; Ector v. Welsh, 29 id. 443. Q. Where the party to whom the admissions were made did not act on them, and did not change his posi- tion by reason of them, what is the general rule ? A. It may always be shown that the admissions were untrue; that they were made in jest, or to avoid being annoyed, and were not made with a view to being acted on Haggard v. Haggard, 62 Iowa, 82; Evans v. Evans, 41 Cal. 103; Mathews v. Mathews, 41 Tex. 331; State v. Bryan, 74 N. C. 351; McCraw v. Ins. Co. 78 id. 149; Pil- low v. Thomas, 57 Tenn. 121; Mauro v. Platt, 62 Ind. 450. 53 418 Law AND PRINCIPLES oF EVIDENCE. Q. Suppose one party to a suit admits certain facts to save the other party the trouble and expense of proving such facts, will he be bound by his admissions ? A. He will, and will be estopped from denying the facts so admitted. Q. What is an important rule with reference to ad- missions ? A. It is that when it is sought to prove an admission the whole of the admission should be shown, and not a part. It would be eminently unjust to receive that part of an admission which is unfavorable to the party mak- ing it, and reject all qualifications of the admissions and all explanations made at the same time. The whole of the relevant admission must goin. Ins. Co. v. Newton, 22 Wall. 32; Webster v. Calden, 55 Me. 165; Whitwell v. Wyer, 11 Mass. 6; Clark v. Crego, 47 Barb. 599; People v. Murphy, 39 Cal. 52; Harrison v. Henderson, 12 Ga. 19; Jordan v. Pollock, 14 id. 145; Fitzpatrick v. Harris, 8 Ala. 32; Spanagel v. Dellinger, 38 Cal. 278. Q. If a correspondence between parties is offered, must the whole correspondence go in ? A. It must. Q. May a letter be given in evidence without produc- ing the letter to which it was a reply ? A. Itmay. Wiggin v. R. Co., 120 Mass. 201; Brayley v. Jones, 33 Ind. 508; Lester v. Sutton, 7 Mich. 331; New- ton v Price, 41 Ga. 186. On the question of the whole correspondence going in, see Simmons v. Haas, 56 Md. 153; Moore v. Hawkes, 56 Ga. 557. Q. May a letter found in the possession of a party be given in evidence? A. Not unless he answered it or assented to its con- tents. Q. Who is to determine what parts of the statements are to be believed ? A. The jury. Whitwell v. Wyer, 11 Mass. 6-10; Garey v. Nicholson, 24 Wend. 350. ADMISSIONS. 419 Q. Does the rule requiring the whole relevant admis- sion to be received apply to written admissions ? A. It does. For example, if a debtor makes a written admission that an account is correct, the account having debits and credits, and the creditor introduces the ad- mission, it applies to the credits as well as the debits, and the debtor need not prove the credits. Q. When the complainant uses the answer of the de- fendant in a bill to make out his case, what is the rule? A. The whole of the relevant answer goes in, and if the answer has been amended the amendment goes in where the same is relevant to the gist of the complaint. It has been held that the defendant has the right to have the bill itself read so that the answer may be better un- derstood. Taylor Ev. §.645. Q. Suppose the complainant reads part of an answer, admitting certain facts as evidence, may the defendant read other parts having no connection with the parts read by the complainant ? A. He may not. Q. May one party use part of the answers to interroga- tories and omit other parts ? A. He may, but if he reads a part, all the parts of the auswers bearing on the particular question may be read. Q. When one party has put in evidence only a part of a document, may the other party read the other part ? A. He may when the same is relevant. Q. What is the rule when conversations are given as evidence to prove admissions ? A. The well-established rule is that the whole of the relevant conversation should go in. Parts of the con- versation not bearing on the issue should be rigidly ex- cluded. Taylor Ev. § 658; Storer v. Gowen, 18 Me. 174; Dole v. Wooldredge, 142 Mass. 161; Hopkins v. Smith, 11 Johns. 161; Oakland v. Ins. Co., 72 N. Y. 274; Platner v. Platner, 78 id. 90; Hamsher v. Kline, 57 Penn. St. 397; Coal Co. v. Schultz, 71 id. 185; Phares v. Barber, 61 IIL. 420 Law AND PRINCIPLES OF EVIDENCE. 271; R. Co. v. Hininger, 111 id. 79; Miller v. R. Co., 52 Ind. 51; Martin v. State, 77 Ala. 1; Howard v. Newsom, 5 Mo. 528; 2 Whart. Ev. § 1108. Q. Are mere collateral statements admissible ? A. They are not. Q. Suppose there are subsequent conversations between the parties on the same subject-matter, do these go in because the first conversation does ? A. They do not. If they could then, as soon as a party found that he had make a mistake in making an admis- sion, he would have nothing to do but to seek a second interview and cure the evil. Adams wv. Hames, 107 Mass. Q75. Q. Is it necessary that the exact words be reproduced ? A. It is not. All that is necessary is that the sub- stance of the conversation should be proven. Q. Will a conversation be excluded because the wit- ness did not hear all of it ? A. It will not, and he may testify to what he did hear. Com. v. Pitzinger, 110 Mass. 101; Marsh ». Jones, 21 Vt. 378; Com. v. Richards, 18 Pick. 484; Gildersleeve v. Cara- way, 10 Ala. 260; 2 Whart. Ev. § 1108. Q. Suppose in reading a written admission, it refers to another written admission, without which the admission is incomplete, must the document be produced ? A. It must, or be accounted for, and its contents shown by secondary evidence. Q. By whom must admissions be made to be receivable in evidence? A. By either of the parties to the case; by any person having a substantial interest in the case; by privies in law, privies in blood, and privies in estate. Q. Will admissions made by an administrator, ex- ecutor or trustee before he is clothed with the trust, or of any person as to a note or bill after he has negotiated ADMISSIONS. 421 the same; or of one who has parted with the possession of land, as to how he held, be received ? A, They will not. Mason v. Poulson, 40 Md. 355-365; Padgett v. Lawrence, 10 Paige, 170-180; 40 Am. Dec. 232; Frear v. Evertson, 20 Johns. 142; Barber v. Terrell, 54 Ga. 146; Weinrich v. Porter, 47 Mo. 298. Q. What is the general rule ? A. Admissions made by any one after he has parted with his interest cannot be received to affect the title of one who is a bona fide grantee, donee or successor. Bax- ter v. Ellis, 57 Me. 179; Ealim v. Carson, 59 id. 510; Worthing v. Worthing, 64 id. 235; Baker v. Haskell, 47 N. H. 479; Holbrook v. Holbrook, 118 Mass. 44; Wilcox v. Waterman, id. 296; Perkins v. Barnes, 118 id. 464; Hayden v. Stone, 121 id. 413; Jacobs v. Remsen, 36 N. Y, 670; Cuyler v. McCartney, 40 id. 224; Browning v. Ins. Co., 71 id. 584; Hutchins v. Hutchins, 98 id. 56; McLaugh- lin v. McLaughlin, 91 Penn. St. 462; Dilly v. Warren, 80 Va. 512; Corbleys v. Ripley, 22 W. Va. 154; Campbell v. Coon, 51 Ind. 76; Kennedy v. Devine, 77 id. 490; Daniels v. McGinnis, 87 id! 549; Jewett v. Cook, 81 Ill. 260; Bixby v. Carskadden, 63 Iowa, 164; Shirland v. Ivon Works, 41 Wis. 162; Hunneker v. Farmer, 72 N. C. 372; Melvin v. Bullard, 82 id. 33; Smith v. Hamblett, 48 Ark. 320; Gill v. Strozier, 32 Ga. 588; Cornett v. Cornett, 33 id; 219; Harrell v. Culpepper, 47 id. 685; Barber v. Terrell, 54 id. 146; Flanders v. Maynard, 58 id. 56; Holly v. Flourney, 54 Ala. 99; Weinrich v. Porter, 47 Mo. 293; Wright v. Hessey, 59 Tenn. 42; Garrahy v. Green, 32 Tex. 202; Sumner v. Cook, 12 Kans. 162; Taylor v. R. Co., 67 Cal. 615; and other authorities cited in 2 Whart. Ev. §§ 1164, 1165. Q. What is the rule as to the admissions of an agent binding the principal ? A. The admissions of an agent are receivable against the principal if made pending, and in reference to the business in which he is engaged for the principal, and within the scope of his authority. Cliquot’s Champagne, 422 LAW AND PRINCIPLES OF EVIDENCE. 3 Wall. 114, 140; U. 8. v. Brig Burdett, 9 Pet. 682, 689; R. Co. v. O’Brien, 119 U. 8. 99-104; Stiles vu. R. Co., 41 Am. Dec. 485; Betts v. Loan Co., 91 id. 463. Q. Where the agent is employed to make a contract between his principal and another, are his representa- tions made at the time of making the contract binding on the principal ? A. They are. Galceran v. Noble, 66 Ga. 367; Baldwin v. Ashley, 54 Ala. 82; Doe v. Robinson, 24 Miss. 688; Peck v. Ritchey, 66 Mo. 114; Pianix v. McAdoo, 68 N. C. 56; Merchants’ Co. v. Leyser, 89 Ill. 48; Wolfe v. Pugh, 101 Ind. 294; Coyle v. R. Co., 11 W. Va. 94; Ins. Co. v. Hasey. 25 Gratt. 268; Powell Ev. § 259; Ins. Co. v. Boyle, 21 Ohio St. 119; Reinerman v. Blair, 96 Penn. St. 155; R. Co. v. Tyng, 63 N, Y. 653; Sandford v. Handy, 23 Wend. 260; Bird v. Daggett, 97 Mass. 494; Baring v. Clark, 19 Pick. 220. Q. If the representations were false, yet within the scope of the agent’s authority, are they binding on the principal ? A. They are. R. Co. v. Tyng, 63 N. Y. 653; Rockford v. R. Co., 65 Tl. 224; Wiggins v. Leonard, 9 Iowa, 194; Whart. Ag. § 468. Q. Will a misrepresentation as to law by the agent. bind the principal ? A. It will not. Q. Does the same doctrine apply as between a corpora- tion and its agent ? A. It does. McGenness v. Adriatic Mills, 116 Mass. 177; Whart. Ag. §§ 57, 670, 671. Q. When an agent is employed to transact a certain business for his principal, are his admissions made in the transaction of such business and within the scope of his authority binding on the principal ? A. They are. Hanover Co. v. Iron Co., 84 Penn. St. 279; Burnham v. R. Co., 68 Me. 298; Over v. Schiffling,. 102 Ind. 191; Whart. Ag. §§ 122, 168, 460. ADMISSIONS. 423 Q. Suppose at the time that the principal sends his agent out to transact the business he places certain re- strictions on his authority, what force do the admissions of the agent have ? A. When made to persons who had no knowledge of the restrictions imposed they are binding, but not to per- sons who understood the secret limitations of his author- ity. Q. Suppose the agent is as much the agent of one party to a contract as of the other ? A. Then there is a modification of the rule. Q. When the acts of the agent are part of the res geste, what is the rule ? A. Then his acts are receivable in evidence for either party, and what he says, as well as what he does, may be shown. Xenia Bank v. Stewart, 114 U. 8. 224; Burn- ham v. R. Co., 68 Me. 298; Willard v. Buckingham, 36 Conn. 395; Sandford v. Handy, 23 Wend. 260; Dodge v. Bache, 57 Penn. St. 421; R. Co. v. Riegel, 73 id. 72; Grim v. Bonnell, 78 id. 152; R. Co. v. Goddard, 25 Ind. 185; Simmons v. Rust, 39 Iowa, 421; McComb v. R. Co., 70 N. C. 178; Ex. Co. v. Duffey, 48 Ga. 358; Manuf. Co. v. White, 53 id. 395; Adams v. Humphreys, 54 id. 496; Bohannan v. Chapman, 13 Ala. 461; Beardslee v. Stein- mesch, 38 Mo. 168; Malecek v. R. Co., 57 id. 17; Owens v. Northrup, 30 Wis. 482. Q. What as to admissions of an agent in cases of tort? A. When the admissions are made at the very time of the tort, so as to become a part of the res geste, and the act itself is talking, and not the agent talking about the act, they are admissible. A person is injured on a rail- road or a house is set on fire by an engine, what the agent says at the very time of the injury as to how it occurred or how the fire begun is admissible in evidence against the principal. Time for reflection, however, will change the rule. Wakefield v. R. Co., 117 Mass. 544; Pocket Co. v. Clough, 20 Wall. 540; Mortimer v. McCalla, 6 M. & W. 58; Enos v. Tuttle, 3 Conn. 250; R. Co. v. State, 424 Law AND PRINCIPLES OF EVIDENCE. 62 Md. 479; R. Co. v. Fray, 35 Kans. 700; Kelly v. R. Co., 88 Mo. 534; Scovill v. Glassuer, 79 id. 449; R. Co. v. Ashcraft, 48 Ala. 15; R. Co. v. Kelly, 58 Ga. 107; R. Co. v. Duggan, 51 id. 212; Griffin v. R. Co., 26 id. 111; Ran- dall v. Tel. Co., 54 Wis. 140; Rounsavill v. Peese, 45 Il. 506; Treadway v. R. Co., 40 Iowa, 527: R. Co. v. Coleman, 28 Mich. 446; R. Co. v. Gougaz, 55 Til. 503; Ins. Co. u Carlin, 58 Md. 336; Anderson v. R. Co., 54 N. Y. 334; Furst v. R. Co.,72 id. 542; Rockwell v. Taylor, 41 Conn. 59; Sears v. Hayt, 37 id. 406. Q. What of admissions made by a general agent ? A. When they are not within the scope of his business and are not a part of the res geste they are not admis- sible, but when they are they are received. Whether the admissions are verbal or in writing when it is made to appear that his acts or words were in reference to the business and grew out of it, he is in contemplation of law, the alter ego of the principal and his admissions bind him. Ins. Co. v. Malone, 21 Wall. 152; Gooch v. Bryant, 13 Me. 386; Page v. Parker, 40 N. H. 47; Whee- lock v. Hardwick, 48 Vt. 19; Blanchard v. Blackstone, 102 Mass. 343; Wilson v. Bowden, 113 id. 422; Anderson v. Bruner, 112 id. 14; Richmond Works v. Hayden, 132 id. 190; Murray v. Chase, 134 id. 92; Happy v. Mosher, 48 N.Y. 313; Bank v. Bank, 60 id. 279; Custar v. Gas Co., 63 Penn. St. 381; R. Co. v. School Dist., 96 id. 65; Wheatley v. Wheeler, 34 Md. 62; Brenneker v. Warren, 17 8. C. 139; Griffin v. R. Co., 26 Ga. 11; Wilcox v Hall, 53 id. 635; Newton v. White, id. 395; Winter v. Bent, 31 Ala. 33; R. Co. v. Johnson, 42 id. 242; R. Co. v. Ashcraft, 48 id. 15; Galbreath v. Cole, 61 id. 189; Memphis v. R. Co., 63 id. 402: Wailes v. Neal, 65 id. 59; Grimshaw v. Paul, 76 Til. 164; Monaghan v. Ins. Co., 53 Mich. 238; Smith v. Wallace, 25 Wis. 55; Cosgrove v. R. Co., 54 Mo. 495; Hamilton v. Berry, 74 id. 176; Caldwell v. Henry, 76 id. 254; French v. Wade, 35 Kans. 391; Cook v. Wakefield, 41 Miss. 541; 2 Whart. Ev. § 1175; and other authorities there cited. ADMISSIONS. 425 Q. Suppose the principal instructs his agent to make a fraudulent contract ? A. Then he is bound by the acts and admissions of the agent in the performance of the work. Q. May his admissions be rebutted ? A. They may. Q. Suppose the agent, as the result of carelessness and negligence, commits a tort on a stranger, as when the employees of a railroad company negligently operate the machinery of aroad whereby a third person sustains injury, will the admissions of the agent in such cases be received against the principal ? A. When they are a part of the res geste they will, otherwise not. Q. Will any subsequent admission by him be received against the principal ? A. It will not. He is not the agent of the principal as to subsequent admissions, and they are merely hearsay. Q. May general agents make admissions receivable against their principals ? A. They may in the conduct of the business with which they are entrusted. Q. Does power to admit in an agent bind the principal ? A. It does. Bennett v. Holmes, 32 Ind. 108; Howe v. Snow, 32 Iowa, 433; Ward v. Leitch, 30 Md. 326; Buch- anan v. Collins, 42 Ala. 419; Northrup 2. Ins. Co., 47 Mo. 435. Q. May the admission of an agent be assimilated to that of the principal ? A. ‘“‘The party is bound by his own admission and is not permitted to contradict it, but it is impossible tosay a man is excluded from questioning or contradicting any- thing any person has asserted as to him respecting his conduct or his agreement, merely because that person has been an agent of his. If any fact material to the interest of either party rests in the knowledge of an agent it is to be proved by his testimony and not by his mere assertion.” 54 426 Law AND PRINCIPLES OF EVIDENCE. Q. Are contractual admissions by the agent generally admissible against the principal ? A. They are, and are binding unless wholly outside of the scope of the agent’s authority. Q. Is a person dealing with a special agent bound to look to the extent of the agent’s authority ? A. He is. Q. Where the admissions of the agent are non-con- tractual, may the principal prove their falsity ? A. Hemay. Custar v. Gas Co., 63 Penn. St. 381; R. Co. v. Finney, 10 Wis. 388; 2 Whart. Ev. § 1179. Q. What as to any admissions by the agent after the contract is closed ? A. After the business is closed the admissions of the agent cannot be received. Q. What is the general rule laid down by Mr. Whar- ton in his work on Evidence ? A. It is that non-contractual admissions of an agent are not admissible unless part of the res geste, or unless they are made by the special authority of the principal. Whart. Ev. § 1180; Goetz v. Bank, 119 U.S. 551; White v. Miller, 71 N. Y. 118; Phelps v. R. Co., 60 Md. 536; R. Co. v. Lee, 60 Ill. 501; R. Co. v. Riddle, id. 534; Rowell v. Klein, 44 Ind. 290; Bowen v. School Dist., 36 Mich. 149; McComb v. R. Co., 70 N. C. 178; Colquitt v. Thomas, 8 Ga. 268; East, etc. v. Taylor, 41 Ala 938; Caldwell ». Garner, 81 Mo. 131; Clunie v. Lumber Co., 67 Cal. 313; R. Co. v. Theobald, 51 Ind. 246; R. Co. v. Carrow, 78 IIL. 848; R. Co. v. Ashcraft, 48 Ala. 15; Price v. Thornton, 10 Mo. 185; Ready v. Highland Mary, 20 id. 264. Q. Do contractual admissions of the agent stand on different grounds ? A. They do. The admissions of the agent in all mat- ters and things leading up to the contract, and at the time of the contract, are admissible against the principal. Q. Are admissions made subsequently admissible ? A. They are not. ADMISSIONS. 427 Q. Would letters written by the agent to his principal giving an account as to the details of the transaction be received as admissions against the principal ? A. They would not. Hannay v. Stewart, 6 Watts, 487; Fawcett v. Bigley, 59 Penn. St. 411. Q. What as to the admissions made by a servant in the performance and execution of the orders of the master ? A. The acts and words of the servant in the perform- ance of the master’s business are admissible against him. For the acts of the servant he is suable, and by his ad- missions he is bound. Q. To what extent do the admissions of the servant bind the master ? A. When in the performance of a particular duty, and when made with reference to it. Q. What is necessary in order to prove the admissions of an agent ? A. It must be shown that he is an agent, nor will his declarations that he is an agent be received as proof. Bowker v. Delong, 141 Mass. 315; Hill v. R. Co., 63 N. Y. 101; Williams v. Davis, 69 Penn. St. 21; Grim v. Bonnell, 78 id. 152; Whiting v. State, 91 id. 849; R. Co. v. Thompson, 112 id. 118; Rosenstock v. Tormey, 32 Md. 169; Stenhouse v. R. Co., 70 N. C. 542; Francis v. Ed- wards, 77 id. 271; Mapp v. Phillips, 82 Ga. 72; Wilcoxen v. Bohanan, 53 id. 219; Caldwell uv. Henry, 76 Mo. 254; Breckinridge v. McAfee, 54 Ind. 141; LaRose v. Bank, 102 id. 332; Reynolds v. Ferrell, 86 Ill. 590; McPherkin v. Jennings, 66 Iowa, 622; Howe Machine Co. v. Clark, 15 Kans. 492; Howcott v. Kilbourn, 44 Ark. 213. Q. Are the admissions of one partner, or one joint con- tractor, admissible in evidence against his co-partner or co-contractor ?. A. When the admissions refer to transactions con- nected with the partnership business, or to the business of a co-contractor, they are admissible against the other 428 DLAw AND PRINCIPLES OF EVIDENCE. co-contractor or co-partner. Baker v, Stackpoole, 18 Am. Dec. 508; 2 Whart. Ev. § 1196. Q. Is not each one the agent of the other for the pur- pose of carrying on the business ? A. Heis. Tuttle v. Turner, 28 Tex. 759; State v. Ross, 29 Mo. 32; Mask v. State, 32 Miss. 405; Bernhard v. Smith, 86 N. C. 473; Rollins v. Henry, 84 id. 569; Ches- ter v. Dickerson, 54 N. Y. 1; Crippen v. Morss, 49 id. 63; Davis v. Keene, 23 Me. 69. Q. While the partnership lasts, are these admissions receivable ? A. They are, but not after the dissolution of the part- nership. Fadyen v. Harrington, 67 N. C. 29; Johnson v. State, 29 Ala. 62; Cady v. Kyle, 47 Mo. 346; Bennett v. Holmes, 32 Ind. 108; Adams v. Funk, 58 Ill. 219; Hahn v. Bank, 50 id. 456; Peck v. Lusk, 38 Iowa, 93; Gan- dolfo v. Appleton, 40 N. Y. 533; Smith wv. Collins, 115 Mass. 388; Barrett v. Russell, 45 Vt. 43; Cross v. Lang- ley, 50 Ala. 8; Campbell v. Hastings, 29 Ark. 512. Q. To what extent, and under what circumstances, are clients bound by the acts and admissions of their attor- neys ? A. When an attorney of record in a pending case, makes admissions within the scope of his authority touching matters connected with the trial of that case, his client is generally bound. Steph. Ev. art. 17; Bur- bank v. Ins. Co., 24 N. H. 550; Smith v. Hollister, 32 Vt. 695; Wilson v. Spring, 64 Ill 18; R. Co. v. Stroup, 28 Kans. 394; Whart. Ag. 585. Q. May an attorney admit certain facts on the trial of a case, waive right of appeal, notice to produce papers, waive process and service and confess judgment ? A. He may, and it will be binding on his client. Q. If the admissions of an attorney are in the nature of contractual admissions, and in the business in which he is employed, are they binding ? A. They are. ADMISSIONS. 429 Q. Suppose the admissions are non-contractual ? A. Then all such admissions may be rebutted. They are only prima facie evidence. Thomas v. Kinsey, 8 Ga. 431; McLean v. Clark, 47 id. 24; Cassels v. Usry, 51 id. 621; McRea v. Bank, 16 Ala. 755; People v. Garcia, 25 Cal. 581; Floyd v. Hamilton, 33 Ala. 235. Q. Suppose an attorney admits the signature of a document offered in evidence in the trial of a ee does this bind the client ? A. It does unless done fraudulently. Q. May he admit handwriting ? A. He may. Q. Is the attorney a special or general agent ? A. He is a special agent. Q. Must the admissions of an attorney to bind the client be distinct and formal ? A. They must. ‘And they must be made with the distinct purpose of dispensing with formal proof of a fact on the trial. Those which occur in mere conversa- tion, though they relate to matters in issue in the case, cannot be received in evidence against the client.” 1 Greenl. Ev. § 186; Treadway v. R. Co., 40 Iowa, 526. Q. Are the admissions of the attorney made with a view to compromise admissible ? A. They are not. Solomon R. Co. v. Jones, 34 Kans. 444, Q. Are admissions made in one case by the attorney receivable in another ? A. They are not. Q. May the admissions of an attorney, when receivable against his client, be used by a stranger subsequently ? A. They may. Q. When an attorney makes admissions for his client, and the other party acts on them, do they conclude his client ? A. They do. 430 Law AND PRINCIPLES OF EVIDENCE. Q. Must it be shown that he is the retained attorney of the party in the particular case before his admissions will be received ? A. It must, and the attorney’s admissions, for that pur- pose, are not receivable. Q. Suppose an attorney makes an admission as to matters of law, may such admissions be recalled before judgment ? A. They may, provided the other party has not changed his position in consequence of the admissions. Q. May payment by one joint contractor, or any ad- mission by him, prevent the bar of the statute of limi- tations # A. It may not. Konig v. Bayard, 1 Pet. 251, 367. Contra. Burgoon v. Bixler, 55 Md. 384; 39 Am. Rep. 417; 1 Greenl. Ev. § 112. Q. Do admissions made by the principal at the time of the transaction of the business for which the surety is bound bind the surety ? A. They do. ‘‘If the declaration of the principal were made during the transaction of the business for which the surety was bound so as to become part of the res gestce they are admissible, otherwise, not.” Taylor Ev. § 710; Hatch v. Elkins, 65 N. Y. 489; Rae v. Beach, 76 id. 174; Agricultural Co. v. Keeler, 44 Conn. 165. Q. Are his admissions made after the transaction is closed admissible ? A. They are not. Q. Are the admissions of the principal made before the creation of the debt receivable ? A. They are not. Q. Do the admissions of strangers, as a general rule, bind either party ? A. They donot. 1Greenl. Ev. § 181; Steph. Ev. art. 37. Q. When one party to a suit refers the other party to a stranger for information in reference to a disputed ADMISSIONS. 431 point, are the statements of the stranger admissible against the party so referring 3 A. They are. Chapman v. Twitchell, 37 Me. 59; 58 Am. Dec. 773; Chadsey v. Greene, 24 Conn. 562; Mc- Neeley v. Hunton, 24 Mo. 281; Trustees v. Cokely, 5 Ind. 164; Hudspeth v. Allen, 26 id. 165; Bailey v. Blanchard, 62 Me. 168. Q. Will admissions made with a view to the compro- mise of pending litigation be received ? A. They will not. Q. Will admissions made as the result of duress per minas be received ? A. They will not. Q. Suppose part of the document is read by one party as an admission of another, may the other read the whole of the document ? A. He may, when it is relevant, but may not read dis- , tinct parts unconnected with the parts relied on as ad- missions by the other party. Q. When the testimony of the witness in another cause is given, what is the rule ? A. The rule is, that the whole of it must be given, the direct as well as the cross-examination, if it be relevant. Gildersleeve v, Caraway, 10 Ala. 260; Com. v. Richards, 18 Pick. 484; Marsh v. Jones, 21 Vt. 378; Tibbetts 2. Flanders, 18 N. H. 284. . Q. Suppose there is nothing in the pleadings which puts the admissions in issue, will such admissions be received ? A. They will not. The admissions must be relevant. If any other rule were adopted it would give one party an undue advantage over the other. The party making the admissions cannot be expected to call witnesses to rebut admissions which do not touch the issues involved in the pleadings. Q. May verbal or written admissions made by a minor be shown against him after he attains his majority ? A. They may. 432 Law AND PRINCIPLES OF EVIDENCE. Q. Will admissions made by a nominal party plaintiff be received against the real plaintiff ? A. They will not. An admission by the trustee, for example, will not be received against the cestuc que trust in an action by him in the name of the trustee, nor the admission of a prochein ami against the real party plain- tiff. Hogan v. Sherman, 5 Mich. 60; Jones v. Norris, 2 Ala. 526; Dazey v. Mills, 20 IIL. 67; Chisholm v. Newton, 1 Ala. 871; Sykes v. Lewis, 17 id. 261; Thompson vw. Drake, 32 id. 98; Rawstone v. Gandell, 15 M. & W. 304. Q. If the real party plaintiff acquiesces in such admis- sions of the nominal party, will he be bound ? A. He will. In all cases where admissions are offered, it should appear that the party making them had an in- terest in the suit. Q. In order to render the admissions of one partner or co-contractor admissible against the other partner or “contractor, what must be the nature of their interest in the subject-matter, about which the admissions are made? A. The interest should be a joint interest as distin- guished from an interest in common. Q. May the admissions of one tenant in common be received to bind another tenant in common ? A. They may not. There is a community of interest. in the property and not a joint interest. Q. Where partners own other property outside of the partnership property, not as parners, but as tenants in common, will the admissions of one touching that prop- erty bind the other ? A. They will not. Q. As to admissions made by one when the interest is. joint, and not a community of interest ? A. See on this subject, Phil. Ev. § 378; Taylor Ev. § 661; Brannon v. Hursell, 112 Mass. 63; Union Bank v. Under- hill, 102 N. Y. 336; Edwards v. Tracy, 62 Penn. St. 378; Hilton v. McDowell, 87 N. C. 864; Ins. Co. v. Wilkinson, 53 Ga. 545; Newan v. Rapier, 57 Mass. 100; Wells v. Tur- ADMISSIONS. 433 ner, 16 Md. 183; Crippen v. Morse, 49 N. Y. 63; 2 Whart. Ev. § 1193, et seg. As to sayings of one partner to bind the other, see Barrett v. Russell, 45 Vt. 43; People 2. Pitcher, 15 Mich. 397; Adams v. Funk, 53 Il. 219; Wells v. Turner, 16 Md. 183; Hahn v. Bank, 50 IIL. 456; Bennett v. Holmes, 82 Ind. 108; State v. Nash, 10 Iowa, 81; Johnson v. State, 29 Ala. 62; Cady v. Kyle, 47 Mo. 346; Cross v. Langley, 50 Ala. 8. Q. May the admissions of a silent partner be used against the ostensible partner ? A. They may. Am. Iron Co. v. Evans, 27 Mo. 552; Fail v. McArthur, 31 Ala. 26; Chester v. Dickerson, 54 N. Y. 1; Webster v. Stearns, 44 N. H. 498; Mamlock v. White, 20 Cal. 598; Taylor Ev. §§ 537, 675. Q. Will any admissions made after dissolution be re- ceived ? A. They will not. Dennie v. Williams, 135 Mass. 28; Caldwell v. Sigourney, 19 Conn. 87; Buch v. Stowell, 71 Penn. St. 208; Miller v. Neimerick, 19 Ill. 172; Winslow v. Newlan, 45 id. 145; Morgan v. Hubbard, 66 N. C. 394; Flowers v. Helm, 29 Mo. 324. Q. Do the same rules apply to joint contractors and other parties having a joint interest ? A. They do. Q. When persons are not parties to the suit, but inter- ested in the subject-matter, will their admissions be re- ceived? A. They will. Q. What is the rule when there is a community of in- terest ? A. When the interest is common the admissions of one will not be received against another. Eakle v. Clarke, 30 Md. 822; Chamberlain v. Dow, 10 Mich. 319; Ins. Co, v. Wilkinson, 583 Ga. 545; McCune v. McCune, 29 Mo. 117; Walker v. Dunspaugh, 20 N. Y. 170; Church v. Howard, 79 id. 415; Scholey v. Walton, 12 M. & W. 514; Bramon v. Hursell, 112 Mass. 63. 55 434 Law AND PRINCIPLES OF EVIDENCE. Q. When several persons are charged with the commis- sion of a tort, will the admission of one bind the others ? A. Such admissions are not receivable unless a part of the res geste. Q. Will the admissions of one executor be received to prove a debt against his co-executors ? A. They will not. One executor is not the agent of another for this purpose. Q. May the admissions of a co-legatee, co-distributee, or co-devisee be received against another # A. They may not. Q. What is the general rule on this subject ? A. When there is such a community of interest among the parties as that agency may be fairly inferred, the ad- mission of one party bearing on the question at issue should be received. Q. When the admission which it is sought to prove contains simply what the party has heard, will it be re- ceived ? A. It will not. It is hearsay; but when a party in his answer to a bill sets forth certain facts from hearsay , and then states that he believes them to be true, it may be received in evidence as an admission. Q. Suppose there is a joint contract, and one of the parties to it dies, can anything said or done by the other, after the death of the joint contractor, be received as an admission ? A. It could not. The death of one terminates any supposed agency. Q. Would the admissions of the survivor bind the representative of the deceased, or the admissions of the personal representative bind the survivor ? A. They would not. The admissions of an heir will not be received against an executor, nor the admissions of a personal representative against the survivor of a partnership, or of the survivor of two joint contractors. The admissions of an executor in themselves do not bind ADMISSIONS. 485 the co-executor, nor do they bind an administrator de bonis non, nor do the admissions of one co-executor bind the estate of the other co-executor. Eckert v. Trip- lett, 48 Ind. 174; 2 Whart. Ev. § 1199; Brooks v. Goss, 61 Me. 307; Church v. Howard, 79 N. Y. 415. Q. Will the admissions of one indorser of a bill bind the other indorsers, or the admissions of an heir of a devisee bind the executor, or of the executor bind the heir ? A. ‘They will not.” Blancjour v. Tutt, 32 Mo. 576; Perry v. Graves, 12 Ala. 246; Baker v. Briggs, 8 Pick. 122; Russell v. Doyle, 15 Me. 112; Washburn v. Rams- dell, 17 Vt. 299. Q. Suppose one party takes negotiable paper which is over due, or with notice, are the admissions of the trans- feror, while he held the paper, receivable against him ? A. They are. Q. Will the declarations of one person be received to show his joint interest ? A. They will not, and before any admissions are re- ceived the joint interest must be shown by evidence aliunde. And so of agents before any admission will be received the agency must be established. Cuyler v. Mc- Cartney, 40 N. Y. 228; Boswell v. Blackman, 12 Ga. 591; Rimel v. Hayes, 883 Mo. 200; Bucknam v. Barnum, 15 Conn. 68; Whitney v. Ferris, 10 Johns. 66; Jones v. Hurlbut, 39 Barb. 403; Lenhart v. Allen, 32 Penn. St. 312; Boor v. Lowrey, 103 Ind. 468; Wiggins v. Leonard, 9 Iowa, 194; Henry v. Willard, 73 N. C. 35; Berry 2. Lathrop, 24 Ark. 12; Campbell v. Hastings, 29 id. 512. Q. Suppose admissions are fraudulently made by one whose admissions would be otherwise received, what is the rule ? A. If the admissions are fraudulent and are non-con- tractual they may be rebutted, but if they are contractual admissions and the party to whom they are made has bona fide acted on them, they will bind although fraudu- lent. 436 Law AND PRINCIPLES OF EVIDENCE. Q. Will the admissions of one that he is a partner bind him as such although there be in fact no partnership ? A. They will. Q. May the admissions of one co-defendant, or his an- swers to interrogatories, be used against his co-defendant ? A. They may not unless the interest is joint. Q. Ought admissions to be received with great caution ? A. They ought. Q. State some of the many reasons for this ? A. The party to whom the admissions were made may have misunderstood, or may unintentionally have misre- ported the language employed; he may have an interest in misrepresenting; he may intentionally misquote, or change words or sentences; he may intentionally or un- intentionally transpose words and sentences and thus wholly misrepresent the statements really made by the party. Q. Where an administrator makes an inventory and return of the assets of his intestate under oath, are such inventory and return admissible to show assets ? A. They are, and when the administrator is sued, and pleads plene administravit, he must account for such assets by showing either that they did not come into his hands, or that he has already fully administered them. Q. May admissions in deeds be received ? A. They may against parties, their privies in law, in blood and in estate. A recital in a deed is evidence against him who executed it and those in privity with him. When the recital is particular and parties have acted on it, it is binding. Bonner v. Metcalf, 58 Ga. 236; Stowe v. Wyse, 7 Conn. 214; Green v. Clark, 13 Vt. 58; Ballou v. Jones, 37 Ill. 95; Land Co. uv. Bonner, 75 id. 315; Williams v. Swetland, 10 Iowa, 51; Comstock ». Smith, 26 Mich. 306; Fox v. Sugar Co., 109 Mass. 292; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. Q. May mere collateral recitals in a deed be rebutted ? A. They may. ADMISSIONS. 437 Q. Are infants bound by recitals in deeds made by their guardians } A. They are not. Q. What is the rule as to recitals in insurance policies? A. If they are contractual they are binding. Other- wise, they are open to rebuttal, and are only prima facie. Q. What is the rule when the recitals in the document are general ? A. When the recitals are general and the facts are set forth non-contractually, and in an indefinite way, they are only prima facie evidence, and are never conclusive. As a matter of course, when the recital amounts to a contract it operates as an estoppel; otherwise, not. Wash. Real Prop. 101; Newman v. Shelley, 36 La. Ann. 100; Miller v. Moses, 56 Me. 128; Noble v. Cope, 50 Penn. St. 17; Davis v. Bromar, 55 Miss. 671. Q. Do recitals bind third parties? A. They do not. As to them it is simply hearsay evi- dence. It binds privies but does not affect persons who claim by title paramount. Smith v. Penny, 44 Cal. 161; Lamar v. Turner, 48 Ga. 329; Yahools Co. v. Irby, 40 id. 479; Ins. Co. v. McCreary, 58 Penn. St. 394; Hardenburgh v. Lakin, 47 N. Y. 111; Garver v. Jackson, 4 Pet. 1. Q. Are admissions which are non-contractual and not acted on by the other party conclusive ? A. They are not. Receipts given in payment of aclaim are open to explanation and rebuttal; so are admissions that an account is correct, or admissions that a note is correct and that he is not entitled to any credits, unless such note has been purchased by one who relied on his assurances. Q. Is an admission made under oath conclusive # A. It is not. Q. Are not certain admissions conclusive on the party, and will he not be estopped from denying them ? A. They are. Such admissions as innocent third parties have acted on, and on which the party making them in- 438 Law AND PRINCIPLES OF EVIDENCE. tended they should act, are conclusive; as where one rep- resents to another about to purchase that he has no in- terest in the subject-matter of the purchase, and the other is induced to purchase on these representations, he is con- clusively estopped from setting up title. And where one wrongfully intermeddles with the estate of a decedent it is a conclusive admission that he is an executor de son tort. Q. What is the rule as to admissions made by one party on which the other has not acted ? A. ‘“‘The admissions which have been made without. any intention of being acted on, or which have not been acted on, or by which the situation of the party to whom they are made has not been prejudiced or altered, though receivable in evidence against the party, are inconclusive.” Taylor Ev. § 854; Nourse v. Nourse, 116 Mass. 101; 2 Whart. Ev. § 1155. Q. Suppose that the admission is acted on and it was so intended ? A. Then the admission estops. Q. Do such admissions refer to conduct as well as words ? A, They do. When one, by his words or conduct, knowingly leads another to change his situation, the other is conclusively estopped from setting up a different state of facts. Q. Must there necessarily be an intention to mislead 2 A. There need not be, but if one intends that another shall act on his representations, and he does act, he will be estopped from denying the truth of the misrepresen- tations. Q. Suppose that one has a latent equity in property about to be sold, and stands by and sees another purchase it from the ostensible owner, and makes no claim and gives no warning, will his silent admission conclude him ? A. It will, When a man could have spoken and wouldn’t, then when he would speak he shouldn’t. ADMISSIONS. 439 Q. One is silent when he ought to speak, will this be an admission ? A. It will. People v. McCrea, 32 Cal. 98; Davis v. Bowman, 55 Miss. 671; Benziger v. Miller, 50 Ala. 207; Moye v. State, 66 Ga. 740; Alston v. Grantham, 26 id. 374; Drumright v. State, 29 id. 480; Block v. Hicks, 27 id. 522; Knight uv. House, 29 Md. 194; Pierce ». Golds- berry, 35 Ind. 817; Johnson v. Day, 78 Me. 224; Corser v. Paul, 41 N. H. Oa: Com »v. Call, 21 Pick. 515; Bank v. Reed, 36 Mich. 263; L’Amoreux v. Vischer, 2 N. Y. 281. Q. In all such cases must the weight of the admission depend on the circumstances of the particular facts @ A. It must. Q. If the party was unable to answer, or tne facts and circumstances were of such a character as not to call on him for an answer, are silent admissions of any weight ? A. They are not. Slattery v. People, 76 Ill. 217; Wil- kins v. Stidger, 22 Cal. 231; Lanergan v. People, 39 N. Y. 39; Com. v. Kenney, 12 Metc. (Mass.) 235; Corser v. Paul, 41 N. H. 24; Kuney v. Dutcher, 56 Mich. 308; Barry v. State, 10 Ga. 511. Q. Is one always bound to respond to inquiries ? A. He is not bound to notice any impertinent inquiry, nor even pertinent ones, if propounded in certain cir- cumstances. Q. Where a person is judicially charged with a crime, is the fact that he declines to make a statement, or re- mains silent, to be taken as an admission ? A. It is not; nor is it a legitimate subject for comment by counsel. Q. “A” writes ‘‘B” saying: “If I receive no answer I shall consider your silence as an acceptance of my offer.” ‘“‘B” makes no reply. Does this amount to an admission? A. Itdoesnot. ‘‘B” was under no obligation to speak. Q. When a party calls a witness and thus vouches for his credit, may the evidence of such witness be used in 440 Law AND PRINCIPLES OF EVIDENCE. another case in which the same party is plaintiff or de- fendant ? A. It may not. Q. When an account is presented to a person and he is silent, does this amount to an admission ? A. It does not. Champion v. Joslyn, 44 N. Y. 653; Mellon v. Campbell, 11 Penn. St. 415; Robertson 2. Wright, 17 Gratt. 534; Bright v. Coffman, 15 Ind. 871; Gartner v. Boller, 54 Mich. 333; Glenn v. Salter, 50 Ga. 170. Q. When an objection is made to a particular item in an account or credit on a note or bank account, does this amount to an implied admission that the other items are correct ? A. It does, and when such an account is held for a reasonable time without any objection it may amount to an admission of its correctness. Meyer v. Reihardt, 112 Mass. 108; Rich v. Eldredge, 42 N. H. 153; Payne v. Taylor, 12 La. Ann. 765; 2 Whart. Ev. §1140. As to silent admissions operating as estoppels, see Snow v. Walker, 42 Tex. 154; Snell v. Brey, 56 Wis. 156; Chapman v. Rose, 56 N. Y. 137; Dillett v. Kemble, 25 N. J. Hq. 66; Summerville v. R. Co., 62 Mo. 391; St. Louis v. Shields, id. 247; Connihan v. Thompson, 111 Mass. 270; Carroll v. R. Co., id. 1. Q. If there be a contractual representation of a fact, is the party bound by it? A. He is, where it has been acted on by the other party. Taylor Ev. § 185; Roberts v. Davis, 72 Ga. 819; Wilkinson v. Leary, 74 Ala. 243; Giddens v. Crenshaw, 74 id. 471; Larkin v. Mead, 77 id. 485; South Park v. Todd, 112 Ill. 379; Hill v. Blackwelder, 113 id. 283; Pool v. Breeze, 114 id. 594; Fidelity Co.’s Appeal, 106 Penn. St. 144; In re Cooper, 93 N. Y. 507. Q. Suppose one hold another out tothe world as his wife, and so acts as to lead others to believe it, and merchants furnish her necessaries on the strength of ADMISSIONS. 441 these representations, will he be estopped when sued from denying the relationship ¢ A. He will. It is a conclusive admission that the woman is his wife so far as the parties are concerned. Q. Does this rule apply to bailees and other agents ? A. It does, where one holds another out as his general or special agent he will be bound by the acts of the agent acting within the scope of his authority, and if an agent or bailee, or warehouseman, acknowledge that they hold goods as such agents, or bailees, for another, they will not afterwards be permitted, except under special cir- cumstances, to set up title in themselves or in third persons. Q. Mention some of the exceptions to this rule. A. If the bailor stole the goods, or got them fraudu- lently, and the agent or bailee sets up that he did not know it at the time he received the goods, then the rule is different; and when one pawns property that does not belong to him the pawnee is not bound to return it to him. Q. Where suit is brought against the acceptor of a bill, may he set up that his signature was forged when he has given circulation to the bill and thereby induced another to take it ? A. He may not. The admission is conclusive. Q. Where a bill has been accepted, what admission does it carry with it ? A. It is a conclusive admission that the signature of the drawer is correct and genuine, that he had the right to draw, and if the bill be payable to the order of the drawer, of his authority to indorse. Q. Where a vendee or assignee of achattel had notice, or ought to have taken notice, of any burden with which it was charged while in the hands of his vendor or assignor, will he take the chattel subject to the burden ? A. He will. He will also be bound by the admissions of his vendor or assignor against interest while in his possession as to such burdens. 56 449 LAW AND PRINCIPLES OF HVIDENCE. Q. If he be a bona fide purchaser without notice, will he be bound ? A. He will not. On the subject of admissions made by vendor or assignor of chattel binding on vendee, see Hinson v. Walker, 65 Tex. 104; Gallagher v. William- son, 23 Cal. 331; Murray v. Oliver, 18 Mo. 405; Brown v. McGraw, 20 Miss. 267; Vennum v. Thompson, 38 IIl. 148; Sandifer v. Hand, 59 id. 246; Bunbury v. Brett, 18 Ind. 363. As to bona fide purchaser, see Jones v. Witter, 13 Mass. 304; Tousley v. Barry, 16 N. Y. 497; Truax 2. Slater, 86 id. 630; Clews v. Kehr, 90 id. 633; Winchester Co. v. Creary, 116 U. 8. 160. Q. Suppose the admissions of the vendor or assignor, while he is in possession, are self-serving ? A. Then they are not admissible unless a part of the res geste. Q. Must the vendee bea purchaser for value in order to: make the admissions of the vendor inadmissible ¢ A. He must. Edington v. Ins. Co., 67 N. Y. 193; Von Sachs v. Kretz, 72 id. 548. Q. Are the admissions of the indorser, made while holding the note or bill, admissible against the indorsee who is suing when the indorsee takes the paper, when it. is over due or has notice of defects ? A. They are. Curtiss v. Martin, 20 Ill. 557; Patton 0. Gee, 36 Ark. 506; Blount 2 Riley, 3 Ind. 471; Roe v. Jerome, 18 Conn. 138; Fisher v. Tone, 38 Me. 534; 2 Whart. Ev. § 1163. Q. Suppose a payee indorses a bill? A. It is an admission that the handwriting of the maker is genuine. Q. Where a bill is drawn and indorsed and then accepted, is the acceptance an admission of the genuine- ness of the signature of the first indorser ? A. It is, but not of the subsequent indorsers, nor is it an admission of the genuineness of the signature of the payee. ADMISSIONS. 443 Q. As to admissions in pleadings, what is the rule when there are certain material allegations, and some of them are denied in the plea and others are not? A. It has been held that as to those not denied an ad- mission of their truth will be implied. Q. May the pleadings of a party in one suit be used against him as admissions in another suit ? A. They may; but they are open to explanation and rebuttal. Q. In order to this, must the pleadings be signed by him ? A. They must be, or by his attorney acting within the scope of his authority. Brown v. Jewell, 120 Mass. 215; Cook v. Barr, 44 N. Y. 156; Hammat v. Russ, 16 Me. 171; Meade v. Black, 22 Wis. 241; Hobson v. Ogden, 16 Kans. 388. Q. Are such admissions in pleadings when used in an- other suit, entitled to much weight ? A. They are not. Q. What are solemn admissions in judicio? A. They are solemn admissions made in the presence of the judge. Q. Are such admissions conclusive between the par- ties ? A. They are, unless the result of fraud or mistake. Marsh v. Mitchell, 26 N. J. Eq. 497. Q. May such admissions be used against the party in other cases ? A. They may, but are not conclusive on him. Perry v. Simpson Co., 40 Conn. 313; Adams v. Utley, 87 N. C. 856; Guy v. Manual, 89 id. 83; Paige v. Willett, 38 N. Y. 31; Rudolph v. Landwerten, 92 Ind. 34. Q. What is the rule as to admissions, when only a part of the allegations are denied ? A. That which is not denied is admitted. Taylor Ev. § 748; Steph. Pl. § 248; Jones v. Brown, 1 Bing. (N. C.) 4 A44 Law AND PRINCIPLES OF EVIDENCE. 484; Simmons v. Jennings, 76 Ill. 482; Briggs v. Dorr, 19 Johns. 95; Jack v. Martin, 12 Wend. 316. Q. Where a bill is taken pro confesso, are its allega- tions admitted ¢ A. They are. Q. Where a defendant, in his answer, admits the ex. istence of a document, need the complainant produce it ? A. He need not. Q. Suppose suit is brought on a judgment, may the defendant dispute it, except on the ground of fraud or mistake ? A. He may not. Q. Where an administrator confesses a judgment or allows it to go against him, is it an admission of assets ? A. It is; and he cannot dispute it. . Is paying money into court an admission pro tanto? pay A. It is; but itis the right of the party to force the plaintiff to prove his claim. Q. Are the defendant’s admissions under oath admis- sible in any other suit against him ? A. They are; but he may rebut by showing mistake or fraud. Q. Are mere collateral matters in pleading entitled to much weight ? A. They are not. It is only when material questions are put directly in issue that the admissions of a party are entitled to weight. Q. What is the rule as to the returns made by an officer ? A. “It is well settled that the return of an officer as to all matters which are properly the subject of his re- turn, is conclusive, so far as it affects parties and privies to the process returned.” Sykes v. Keating, 118 Mass. 517; 2 Whart. Ev. § 1118. Q. May affidavits used on the trial of a case for injunc- ADMISSIONS. 445 tions, answers and depositions, be used in all cases against the party making them ? A. They may. Q. May a party be estopped by positions taken by him on the trial of a case ? A. He may be. Wafford v. Wyly, 72 Ga. 863; Brooks v. Brooks, 90 N. C. 142; Bank v. Pinkers, 83 id. 377; Chatfield v. Simonson, 92 N. Y. 209; Sweezey v. Stet- son, 67 Iowa, 481; Kaehler v. Dobberpuhl, 60 Wis. 256; Gray v. State, 63 Ala. 66. As to admissions made in affidavits, and their admis- sibility and force, see R. Co. v. Ohle, 117 U.S. 123; Law- rence v. Lawrence, 21 N. J. Eq. 317; Wylder v. Crane, 53 Ill. 490; Cook ». Barr, 44 N. Y. 158; Knowlton v. Moseley, 105 Mass. 136; Elliott v. Hayden, 104 id. 180; Williams v. Reynolds, 86 Ill. 263; R. Co. v. Cobb, 64 id. 143. Q. Where a witness is examined in his own case, or where he is called by plaintiff or defendant, and makes certain admissions, will such admissions be received against him ? A. They will. The fact that he testified under com- pulsion will make no difference. Q. What is the rule as to the admissions of persons who are not parties, but who have an interest in the sub- ject-matter ? A. It only affects their own interest, or the interest of persons in privity, and they must have an interest at the time the admissions are made. Q. How far will the admissions of a wife bind a hus- band ? A. He may constitute her his agent and will be bound by her admissions, as he would be by the admissions of any other agent. Q. Are the husband’s admissions that certain property belonged to the wife receivable in her favor after his death ? 446 Law AND PRINCIPLES OF EVIDENCE. A. They are when not made in fraud of his creditors. Crain v. Wright, 46 Ill. 107; Moyer’s Appeal, 77 Penn. St. 482; Parvin v. Capewell, 45 id. 89; Sharp v. Maxwell, 30 Miss. 589; Day v. Wilder, 47 Vt. 584. Q. Are the husband’s admissions that the land in ques- tion and claimed by the wife belongs to him receivable against her ? A. They are not. State v. Bank, 10 Mo. App. 482; Bremmerman v. Jennings, 101 Ind. 253; Warmouth v. Johnson, 58 Cal. 621; Brunson v. Brooks, 68 Ala. 248. Q. Will the admissions of the husband that he is his wife’s agent be received ? A. They will not. It must be shown by other evi- dence. Q. As a general rule, will the admissions of the hus- band be receivable against the wife, unless she be present and assent, or his agency be shown? A. They will not. Kirkman v. Bank, 77 N. C. 394; Holly v. Flournoy, 54 Ala. 99; Livesley v. Lasolette, 28 Wis. 38; Campbell v. Quackenbush, 33 Mich. 287; 2 Whart. Ev. § 1215. Q. If a married woman does business on her own ac- count, is she bound like any other person by her admis- sions ¢ A. Sheis. Snydacker v. Brosse, 51 Ill. 357; Dewey v. Goodenough, 56 Barb. 54; Winter v. Walter, 37 Penn. St. 155; Bergman v. Roberts, 61 id. 497. As to admissions of wife where husband constitutes her his agent, see Chamberlain v. Davis, 33 N. H. 121; Barr v. Greenawalt, 62 Penn. St. 172; Stall v. Meek, 70 id. 181; Lang v. Waters, 47 Ala. 624; Gebhart v. Burkett, 57 Ind. 378; Wheeler v. Tinsley, 75 Mo. 458; Butler v. Price, 115 Mass. 578; Ins. Co. v. Wilkinson, 53 Ga. 535. Q. Will the admissions of the wife as to acts of adul- tery be received in divorce cases ? A. They will when free from suspicion of collusion. On this subject, see Mathews v. Mathews, 41 Tex. 331; ADMISSIONS, AAT Scott v. Scott, 17 Ind. 309; Haggard v. Haggard, 62 Iowa, 82; Evans v. Evans, 41 Cal. 107; Prince v. Prince, 25 N. J. Hq. 310; White v. White, 45 N. H. 121; 2 Bish. Marriage & Divorce, §§ 240, 251. Q. If there be any well-grounded suspicion that the wife’s admissions of adultery were made under the influ- ence of the husband, will they be received ? A. They will not. Summevill v. Summevill, 37 N. J. Kiq. 6038; State v. Colby, 51 Vt. 291; Brown v. Brown, 5 Mass. 320. Q. In the case of admissions by the principal, binding the surety, will anything said after the relation ceases be admissible ? A. It will not. Nothing said by the principal after the transaction of the business will bind the surety; as where the surety is bound for the faithful performance of a certain duty by the principal, and the principal is dis- charged for malperformance, his admissions subsequent to his dismissal may not be received against the prin- cipal. Q. On what grounds are admissions made by one ad- missible against his privies in law, blood and estate ? A. It is on the idea that they are identified in interest. Q. Are a landlord’s admissions receivable against the tenant, in suits against the tenant ? A. They are when they do not conflict with the terms of the instrument under which the tenant holds. Q. In actions of ejectment, are the admissions of the tenant in possession receivable against the landlord ? A. They are. Q. Do the admissions of a tenant for life bind the re- mainderman ? A. They do not. Q. Are the admissions of a tenant for years receivable against the owner of the fee ? A. They are not. 448 Law AND PRINCIPLES OF EVIDENCE. Q. Are the self-disserving admissions of an execution- debtor receivable against the execution-purchasers ? A. They are. King ». Wilkins, 11 Ind. 347; Stephens v. Williams, 46 Iowa, 540; Roebke v. Andrews, 26 Wis. 311; Avery v. Clemons, 18 Conn. 306; Pomeroy v. Bailey, 43 N. H. 118; Martel v. Somers, 26 Tex. 551. Q. Are the admissions of one who transfers a note before or after it is due, made after he parted with it, receivable against a bona fide holder ¢ A. They are not. Q. When an indorsee brings suit on a note or bill which he took after maturity, or without consideration, or when he had notice of fraud in its execution, are the admissions of the indorser made while he held the note receivable against the indorsee ? A. They are. Taylor Ev. § 701. Q. By whom may admissions be shown ? A. By any person who heard them. Q. When admissions are offered, what ought to be shown ? A. It ought to be shown that the party making them had an interest in the property or subject-matter at the time he made them. Q. When one recognizes the official character of another, and treats with him as such official character, is such recognition an admission ? A. It is. Q. May admissions be implied from the conduct of parties ? A. They may; as, for example, when one party attempts. to suborn a witness, or to keep a witness, duly subpoenaed, from court, or seeks opportunity to communicate with the jury trying his case, these are all properly considered confessions of weakness. Q. Are the admissions of a partner made after the dis- solution, but made in reference to the transactions of the. partnership while he was a member, receivable ? ADMISSIONS. 449 A. They are not. The authorities, however, are in con- flict, but the preponderance is opposed to their admission. Baker v. Stackpoole, 9 Cow. 420; 18 Am. Dec. 508; 2 Whart. Ev. § 1196. See contrary doctrine, Van Reims- dyk v. Kane, 1 Gall. 631, 635; Loomis v. Loomis, 26 Vt. 198, 203; 1 Greenl. Ev. § 112. Q. Does not the doctrine rest on the idea of agency ? A. It does. Q. Is the principal so far the agent of the surety as that his admissions concerning the matters for which the surety gives security may be received ? A. He is not. Q. Is the judgment confessed by the principal relevant against the surety ? A. It is. Drummond v. Prestman, 12 Wheat. 519; Stovall ». Banks, 10 Wall. 588, 588; 1 Greenl. Ev. § 187; Steph. Ev. § 35 (note). Q. Several persons execute a joint and several prom- issory note; are the admissions of any one of them re- ceivable against the others ? A. They are. Q. Are the admissions of the agent of an infant admis- sible against the infant? A. Asan agent cannot be appointed by an infant, his admissions will not be received. Q. Suppose the party who claims to have changed his situation as the result of admissions made by the other really acted without reference to the admissions, would the person making them be estopped from setting up a different state of facts 4 A. He would not. It is only when the party has acted on the admissions and because of them, and in good faith, relying on them, has actually changed his situation, and when the person making them intended that they should be acted on, the doctrine of estoppel may be successfully invoked. Q. Will it make any difference that the person making 57 450 Law AND PRINCIPLES OF HVIDENCE. the representations was honestly mistaken and did not intend to mislead the other ? A. If the other acted on the representations, and there were no conditions or qualifications expressed by the per- son making them, and they were contractual, the bona fides of the person who induced the change of situation by the representations cannot affect the principle. Q. Suppose admissions were not intended to be acted on, are non-contractual and were casually thrown out during the course of conversation ? A. Such admissions are of little weight, and may always be explained or rebutted. Q. Will admissions contained in letters by a debtor to his creditor in reference to notes or other obligations held by the creditor, and already barred by the statute of limi- tations, be sufficient to relieve them from the bar of the statute ? A. When such admissions of the debtor distinctly and clearly refer to such obligations, and the language em- ployed by fair construction indicates a recognition of the debt, and a promise to pay it, such admissions will be a sufficient reply to the plea of the statute. Q. Ought written admissions to have more weight than verbal ? A. They ought as they are generally made with more deliberation, and are not liable, like verbal admissions, to be misquoted or misunderstood. Q. Is there not a broad distinction between the admis- sion of a fact and the admission of a right ? A. There is. A fact may be admitted without any in- tention to admit a right not necessarily growing out of the existence of the fact, or facts, admitted, but the ad- mission of aright carries with it the admission of all facts necessary to the existence of the right. Q. Are admissions of a right of much weight unless made as part of a contract ? A. They are not. R. Co. v. Ordway, 140 Mass. 510- ADMISSIONS. 451 512; R. Co. v.’ McDonnell, 48 Md. 534; McLendon v. Shackleford, 32 Ga. 474; Funston v. R. Co., 61 Iowa, 452; Burns v. Campbell, 71 Ala. 271. Q. Give examples of this principle ? ; A. ‘‘A” may admit to ‘‘B” that ‘‘B’s” right and title to a tract of land are clear, but unless the admission is part of the contract between ‘“‘A” and “‘B,” it is of little weight and may be rebutted. It can be withdrawn. Again, one may admit that an account is right, but this does not admit a debt, for the account may have been paid off. Q. Are there not other distinctions? A. There are. The admission of a fact may always be shown against the party admitting in any case; but the admission of a right can only be used as between the parties. Again, the admission of a right is to be strictly construed as it is generally a mere expression of opinion or conclusion. It is different with admission of facts. Q. What is the distinction between contractual and non-contractual admissions ? A. One is made as the basis of a contract and when acted on cannot be revoked. The other is not made as the basis of a contract and may be rebutted or explained. Contractual admissions may operate as estoppels when sued on, as between the parties. They are said to be evi- dential simply and non-conclusive when used by third parties. Gerrish v. Sweetser, 4 Pick. 375; Weed v. Emer- son, 115 Mass. 554; Bigelow Estoppel, 258. Q. What is an estoppel ? A. ‘‘An estoppel is an admission, or something which the law treats as the equivalent of an admission, of an extremely high and conclusive nature—so high and so conclusive that the party whom it affects is not permitted to aver against it or offer evidence to controvert it, though he may show that the person relying on it is estopped from setting it up since that is not to deny its conclusive effect as to himself, but to incapacitate the other from taking advantage of it. Such being the general nature 452 Law AND PRINCIPLES oF EVIDENCE. of an estoppel it matters not what is the fact thereby ad- mitted, nor what would be the ordinary and primary evi- dence of that fact, whether matter of record or specialty, or writing unsealed or mere parol; and this is no infringe- ment on the rule of law requiring the best evidence and forbidding secondary evidence to be produced until the sources of the primary evidence have been exhausted; for the estoppel professes not to supply the absence of the ordinary instruments of evidence, but to supersede the necessity of any evidence by showing the fact as al- ready admitted; and so it has been held that an admission which is of the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, were it not for the admission, must have been proved by certain steps indicated by law to that purpose.” Steph. Pl. 239; 3 Bl. Com. 308. Q. How may estoppels arise ? A. By matters of record, from the deed of a party, or from matter in pais, or, what is the same thing, from matter of fact. Q. Give examples of each. A. Solemn admissions are estoppels by matter of record, as where one confesses judgment; estoppels by deed, as when there are certain material recitals or admissions in a deed the party making them is conclusively estopped from denying them; estoppel by matter zn pazs, as where one pays rent to another it is an admission that he is a tenant. Q. Must estoppels be mutual ? A. They must. A stranger is not bound by an estoppel, nor can he take advantage of it. As to estoppels by matter of record, see Hunt v. Whitney, 4 Mass. 625: Com. v. Proprietors, 10 id. 155; Adams v. Barnes, 17 Mass. 365. Matter of deed or writing. Canfield v. Monger, 12 Johns. 347; Wolcot v. Knight, 6 Mass. 421; Taylor ». Lowell, 3 id. 331; Bridge v. Welling- ton, 1 id. 219; Matter in pavs. Com. Dig. Estoppel; Stark. Ev. § 2, p. 206, 302; 2 Smith’s Lead. Cas. 417-460. ADMISSIONS. 453 Q. May not a party be estopped although the admission is false ¢ A. He may. Heis bound by his admission whether true or false. Big. Estoppel, 288, 289. He will be estopped by an honest misstatement. Luchtmann v. Roberts, 109 Mass. 53; 2 Smith’s Lead. Cas. 671. Benj. Sales, 555. As a matter of course the admissions here referred to must be contractual. Q. May the contents of a writing be proved by the ad- mission of a party ? A. They may; and this may be done without notice to produce the writing. Q. Does this rule only apply where the law does not require attesting witnesses ? A. It only applies to such documents as need not be attested. Crichton v. Smith, 34 Md. 42; Taylor v. Peck, 21 Gratt. 11; Taylor v. Henderson, 388 Penn. St. 60; Bivins v. McElroy, 11 Ark. 23; Brooks v. Isbell, 22 id. 488; Lewis v. Harris, 31 Ala. 689; Warfield v. Lindell, 30 Mo. 272. Q. Will admissions be excluded because the party could be examined ? A. They will not. 2 Whart. Ev. § 1094; Morris 2. Wadsworth, 17 Wend. 103; Jameson v. Conway, 10 II. 227. Q. May the admissions and declarations of a person be shown to prove domicile ? A. They may. They are received to show intent. Wright v. Boston, 126 Mass. 161. Q. Will the wife’s declarations as to domicile bind the husband ? A. They will not. Q. As a general rule are not the self-serving admissions of a party excluded ? A. They are. Nourse v. Nourse, 116 Mass. 101; Whit- ney v. Houghton, 125 id. 451; Fay ». Harlan, 128 id. 244; North Stonington v. Stonington, 31 Conn. 412; Downs v. 454 LAw AND PRINCIPLES OF EVIDENCE. R. Co., 47 N. Y. 83; Schenck v. Sithoff, 75 Ind. 485; Craig v. Miller, 103 Ill. 605; Murray v. Cone, 26 Iowa, 276; Hogsett v. Ellis, 17 Mich. 351; Young v. Perkins, 29 Minn. 173; Berney v. State, 69 Ala. 220; Heard v. McKee, 26 Ga. 332; Bowie v. Maddox, 29 id. 285; Hall v. State, 48id. 607; Williams v. English, 64 id. 546; Arthur v. Gordon, 67 id. 364; Darrett v. Donnolly, 38 Mo. 492. Q. Is there not a general exception to the rule # A. There is, when the statements are part of the res geste of a transaction they are admissible, although self- serving. Colquitt v. State, 34 Tex. 550; Tevis v. Hicks, 41 Cal. 123; Head v. State, 44 Miss. 731; Hart vu. Free- man, 42 Ala. 567; Allen v. Seyfried, 48 Wis. 414; Bass v. R. Co., 42 id. 654; Blake v. Damon, 103 Mass. 199; Scott v. Shaler, 28 Gratt. 89. Q. If there is time for concoction will such declarations be received ? A. They will not. Q. Will the declarations of a person in possession of land as to its boundaries and as to the nature of his title be received ? A. They will, and so will statements made when taking possession of property. Moore v. Hamilton, 44 N. Y. 666; Newlin v. Lyon, 49 id. 661; Pier v. Duff, 63 Penn. St. 59; R. Co. v. Quick, 68 id. 189; 2 Whart. Ev. § 1102. Q. May an instrument which is invalid in itself be used as an admission to prove a debt against a party ex- ecuting it ? A. It may. Crawford v. Jones, 54 Ala. 459; State v. Fowler, 72 id. 77; Towne v. Milner, 31 Kans. 207; Ayres v. Bane, 39 Iowa, 518; Riley v. Butler, 36 Ind. 51; Womack v. Womack, 8 Tex. 397; Knowlton v. Moseley, 105 Mass. 136; Moore v. Moore, 47 N. Y. 468; Huffman uv. Cartwright, 44 Tex. 296. This rule applies when the instrument cannot be enforced, because of improper ex- ecution. Q. When an agent has no authority to execute an in- ADMISSIONS. 455 strument, may it still be used against him, as an admis- sion ? A. It may. 2 Whart. Ev. § 1124. Q. Are indorsements on notes admissible against the party making them or allowing them to be made ? A. They are, where they are admissions against interest. Q. In order to take a debt out of the statute of limita- tions by indorsements of payments on a note, by whom must such indorsements be made ? A. By the debtor himself. Q. What as to admissions contained in letters ? A. They may be received, and if they are contractual they may estop. Q. Are such admissions generally conclusive ? A. They are not, unless they form the basis of a con- tract; if they do not they are subject to be rebutted or explained. Harrison v. Henderson, 12 Ga. 19; Buchanan v. Collins, 42 Ala. 419; Swann vu. West, 41 Miss. 104; South. Ex. Co. v. Thornton, id. 216; Porter v. Ferguson, 4 Fla. 102; Beecher v. Pettee, 40 Mich. 181; Short Moun- tain Co. v. Hardy, 114 Mass. 197; Jacobs v. Shorey, 48 N. H. 100. Q. Do the same rules that apply to letters apply to telegrams ? A. They do. Q. Is the fact that a telegram was sent addressed to a person at a certain place evidence that he received it ? A. It is not. The operator at the place should be called. Q. Are the books of a corporation admissible to prove admissions ? A. They are admissible against members of the cor- poration. Jn re Righter, 92 N. Y. 111; St. Louis Gas Light Co. v. St. Louis, 86 Mo. 495; 2 Whart Ev. § 1181. So are partnership books when one partner sues another. Perry v. Banks, 14 Ga. 699; White v. Tucker, 9 Iowa, 100; Tucker v. Peasjee, 36 N. H. 167. 456 LAW AND PRINCIPLES OF EVIDENCE. Q. Are such books admissible against strangers ? A. They are as books of original entry; otherwise not. Q. When books of account are regularly kept and statements regularly made out and sent to parties, are the entries of such persons admissible ? A. They are. Gaines v. Gaines, 39 Ga. 68; Britton v. State, 77 Ala 202; Gradwohl v. Harris, 29 Cal. 150; State v. Woodward, 20 Iowa, 541; Goodin v. Armstrong, 19 Ohio, 44; McKim v. Blake, 139 Mass. 5938. Q. Are such books always open to explanation ? A. They are. Q. May a party who sells property to another set up invalidity of title ? A. He may not; nor may a corporation which has is- sued bonds purporting to have been executed in conform- ity with the statute, as against a bona fide holder of its bonds, deny such conformity. 2 Whart. Ev. § 1147; Stod dart v. Shetucket, 34 Conn. 542; Dooley v. Cheshire, 15 Gray, 494; Soc. of Savings v. New London, 39 Conn. 174; Knox Co. v. Aspinwall, 21 How. 539; Bissell v. Jefferson- ville, 24 id. 287; Cowdrey v. Vandenburgh, 101 U. 8. 572. Q. ‘“‘A” has a latent equity in land; ‘‘B” buys it in “‘A’s” presence from ‘‘C,” or secures the loan of money to ‘‘C” by taking a mortgage on the land by ‘‘C” in *‘A’s” presence. ‘‘A” raises no objection and does not assert his equity, will he be heard to assert it afterwards as against ‘‘B,” supposing ‘‘B” to be a bona fide pur- chaser or mortgagee ? A. He will not. Hatch v. Kimball, 16 Me. 147; Durham uv. Alden, 20 id. 228; Rangeley v. Spring, 21 id. 187; Bige- low v. Foss, 59 id. 162; McCune v. McMichael, 29 Ga. 312; Brown v. Wheeler, 17 Conn. 345; Brown v. Bowen, 30 N. Y. 519; see (note) 2 Whart. Ev. § 1148. Q. Maya tenant dispute his landlord’s title, or an agent that of his principal ? A. He may not. Q. When, as heretofore stated, one leads another by ADMISSIONS. 457 his words or conduct to change his situation, what is the general rule as laid down by Mr. Story ? A. ‘‘If, in the transaction itself, which is in dispute, one has led another into a belief of acertain state of facts by conduct or culpable negligence calculated to have that result, and such culpable negligence has been the proxi- mate cause of leading, and has led the other to act by mistake on such belief to his prejudice, the second may not be heard afterward as against the first to show that the state of facts referred to did not exist.” 1 Story Hq. 391; Biddle Boggs v. Mining Co. 14 Cal. 368; Davis v. Davis, 26 id. 28; Copeland v. Copeland, 28 Me. 539; Zuchtman v. Robert, 109 Mass. 53; Brant v. Coal Co., 93 U.S. 326; Greenfield Bank v. Stowell, 128 Mass. 196; McGrath v. Clark, 56 N. Y. 34; Lehman v. R. Co., 12 Fed. Rep. 595. Q. What is the general rule as to the admissions of a predecessor in title binding his successor ? A. Asa general rule, whatever the predecessor in title says, while in possession, as to the boundaries of the land, as to how he obtained possession, and to how he held it, whether as tenant, remainderman or reversioner, may be received against his successor. Chadwick v. Fonner, 69 N. Y. 404; Coyle v. Cleary, 116 Mass. 208; Pickering v. Reynolds, 119 id. 111; Flagg v. Mason, 141 id. 64; Wentworth v. Wentworth, 71 Me. 72; Baker v. Haskell, 47 N. H. 479; Hunt v. Haven, 56 id. 87; Headen v. Womack, 88 N. C. 468; Horn v. Ross, 20 Ga. 210; Meek v. Holten, 22 id. 491; Cloud v. Dupree, 28 id. 170; Harrell v. Culpepper, 47 id. 685; Ozment v. Anglin, 60 id. 348; Fralick v. Presley, 29 Ala. 457; Baucum v. George, 65 id. 259; Anderson v. McPike, 86 Mo. 298. Q. May such evidence be received against strangers as well as privies? A. Tt may be received simply to show the grounds on which he claimed possession, and the sayings are not to be used to show title. The admission of the predecessor’s sayings is based on the idea that they areagainst in- terest. 58 458 Law AND PRINCIPLES OF EVIDENCE. Q. What is the rule on the subject as laid down by Dr- Wharton ? A. ‘The declarations must not conflict with the record title; must not be hearsay and must be self-disserving.” 2 Whart. Ev. § 1157; Gibney v. Marchay, 34 N. Y. 301; Ins. Co. v. Moore, 84 Mich 41; Ozmore v. Hood, 53 Ga. 114; Anderson v. Kent, 14 Kans. 207; Dodge v. Savings Co., 93 U. 8. 379; Clarke v. Waite, 12 Mass. 439; Pearce v. Nix, 34 Ala. 183; Arthur 2. Gayle, 38 id. 259; McCanless v. Reynolds, 67 N. C. 268; Pope v. O'Hara, 48 N. Y. 446. Q. Are admissions by a decedent, acknowledging the existence of a debt, recvivable against his executor ? A. They are. Q. What is the rule where the grantee of land allows the grantor to continue in possession ? A. His sayings, while in possession, are admissible against the grantee. The same rule applies also where a purchaser of personal property allows the vendor to re- main in possession. His sayings, while in possession, are admissible against the purchaser. Steph. Ev. § 46; John- son v. Quarles, 46 Mo. 423; Boyd uv. Jones, 60 id. 454; Randegger v. Ehrhardt, 51 Ill. 101; Jones v. King, 86 id. 225; Hartman v. Diller, 62 Penn. St. 43. Q. Are the grantor's declarations that the transaction was fraudulent, admissible against the grantee ? A. Unless there is proof of collusion, they are not. Cuyler v. McCartney, 40 N. Y. 228; Littlefield v. Getch- ell, 82 Me. 390; Hodge v. Thompson, 9 Ala. 1381; Mahone o. Williams, 39 id. 202; Bogert v. Phelps, 14 Wis. 88; Selsby v. Redlon, 19 id. 17. Q. Must such declarations, to be admissible, always be against interest ? A. They must. Newell v. Horn, 47 N. H. 379; Ware v. Brookhouse, 7 Gray, 454; Watson v. Bissell, 27 Mo. 220; Tucker v. Tucker, 32 id. 464; Leach v. Fowler, 20 Ark. 148; Jilson v. Stebbins, 41 Wis. 235. The declara- tion must be against interest when made. ADMISSIONS. 459 Q. Are the declarations of one co-trespasser admissible against the others ? A. The declarations pending the commission of the trespass, and which are part of the res geste, are admis- sible, but not after the transaction is over. ; Q. Must there first be proof of confederacy # a. There must. Dole v. Woolredge, 142 Mass. 161; Ormsby v. People, 53 N. Y. 472; Brown v. Parkinson, 58 Penn. St. 458; Confer ». NcNeal, 74 id. 112; R. Co. o Collins, 56 Ill. 212; Philpot v. Taylor, 75 id. 309; Riehl o. Ass'n, 104 Ind. 70; Bryce v. Butler, 70 N. C. 585. Q. When a conspiracy is shown, are the admissions or confessions of one conspirator admissible against the others ? A. Pending the conspiracy, and in furtherance of the common design, they are admissible against the others. Q. Are they admissible after the conspiracy is closed? A. They are not. Wolfe v. Pugh, 10 Ind. 294; Rex v. Hardy, 24 How. St. Tr. 451; State v. Pike, 51 N. H. 105; Benford v. Sanner, 40 Penn. St. 9; Lynes uv. State, 36 Miss. 617; Beeler v. Webb, 113 Ill. 486; State v. Freder- icks, 85 Mo. 145; Clinton v. Estes, 20 Ark. 216; 2 Whart. Ev. § 1206. Q. Where one negligently fails to assert a claim, and stands by and sees a bona fide purchaser make valuable improvements on land, will he be afterwards estopped from setting up a claim to it ? A. He will. Storrs v. Barker, 6 Johns. Ch. 166. Q. Asa general rule, may any statement made by a party out of court be received to prove his case ? A. It may not. There are exceptions to the rule, how- ever, as when one is injured in a railway collision, his declarations made at the very time, as to how he was injured, are received as part of the res geste, although self-serving. Nourse v. Nourse, 116 Mass. 101; Fay v. Harlan, 128 id. 244; Schenck »v. Sithoff, 75 Ind. 485; Craig v. Miller, 103 Ill. 605; Williams v. English, 64 Ga. 460 Law AND PRINCIPLES OF HVIDENCE. 546. Declarations by persons injured, as to physical pain and suffering, and to show symptoms, are also ex- ceptions to the rule. Q. Must not the weight of all extra-judicial admis- sions depend on the circumstances under which they were made ? A. They must, and the jury should determine for itself the weight to be attached to admissions. Q. Are the admissions of the predecessor in title, when used against his privies in law, blood and estate, intended to destroy or attack the title of the ancestor ? A. They are used simply to explain the character of the possession. Q. What is the general rule as to admissions of an agent against the principal ? A. ‘‘When itis proved that ‘A’ is the agent of ‘B,’ whatever ‘ A’ says, does or writes, in the making of the contract, as the agent of ‘B,’ is admissible in evidence, because it is part of the contract which he makes for ‘B.’” Q. When “A” is the agent of ‘‘B” in the sale of lands, may ‘“‘ B” be estopped by the admissions of ‘‘A ?” A. He may; the principle being that whatever a per- son does by an agent he does by himself. Q. How are the records and judicial proceedings of the courts of other states received in evidence ? A. The Revised Statutes of the United States provide that the acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be autheuticated by having the seal of such state, territory or country affixed thereto; but this provision does not exclude any other method of proof allowed by the state law, or admitted by the court where the same may be offered in evidence. Rev. Stat. U.S., § 905. The Revised Statutes also provide that the records and judicial proceedings of the courts of any state or terri- ADMISSIONS. 461 tory, or of any country subject to the jurisdiction of the United States, shall be proved or admitted 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, together with the certificate of the judge, chief justice or the presiding magistrate, that the said attestation isindue form. And the said records and judicial proceed- ing so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken, but this provision does not exclude any other method of proof allowed by the state law or admitted by the court where the same may be offered in evidence. Rev. Stat. U. S. § 905. The Revised Statutes further provide that all records and exemplifications 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 ad- mitted in any court or office in any other state or ter- ritory, or in any such country, by the attestation of the keeper of said records or books, and the seal of his office annexed, if there be a seal, together with the cer- tificate of the presiding justice of the court of the country, parish or district in which such office may be kept, or of the governor or secretary of the 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 the court it shall be further authenticated by the clerk or prothonotary of said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly qualified and commissioned, or if given by such governor, secretary, chancellor 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, and the said records and exemplifications shall have such faith and credit given to them in every court and office in the United States as 462 Law AND PRINCIPLES OF EVIDENCE. they have by law or usage in the courts and offices of the state, territory or country as aforesaid from which they are taken; but this provision does not exclude any other method of proof allowed by the state law or admitted by the court where the same may be offered in evidence. Rev. Stat. U. S. § 906. Foreign laws and judgments may be authenticated by an exemplification of a copy under the great seal of the state, or by a copy proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer properly authorized by law to give the copy, which certificate must itself also be authenticated. Ennis v. Smith, 14 How. 400, 426; U. §. ». Wiggins, 14 Pet. 334, 346; U. S. v. Rodman, 15 id. 130, 187; Stein ». Bowman, 13 id. 209, 218; Watson 2. Walker, 23 N. H. 471; Buttrick v. Allen, 8 Mass. 278; 5 Am. Dec. 105; Spaulding v. Vincent, 24 Vt. 501, 504; Delafield v. Hand, 3 Johns. 310, 318; Packard »v. Hill, 7 Cowen, 434, 448. CHAPTER XIII. CONFESSIONS. Q. How ought confessions of guilt to be received ? A. Confessions should be received with great caution. Q. Will confessions alone, uncorroborated by other evidence, he held sufficient to convict ? A. They will not. Murray v. State, 43 Ga. 256 ; Smith v. State, 64 id. 606. Q. Why should confessions be received with great cau- tion ? A. Because a witness may easily misunderstand what is said, and is liable, however honest he may be, to report it incorrectly. Greenl. Ev. § 214; Taylor Ev. § 862. “‘Hiven in cases of felony at common law they are the weakest and most suspicious of all testimony, very liable to be obtained by artifice, false hopes, promises of favor, or menaces, seldom remembered accurately or reported with precision, and incapable in their nature of being disproved by other negative evidence.” 4 Bl. Com. 357; 2 Russ. Cr. 643 ; 2 Stark. Ev. §§ 36, 438, 939 (note). Q. What other reasons are there for weighing such evidence with caution ? A. The zeal of persons to detect crime often hurries them to form hasty conclusions, and it is too often the case that the slightest circumstances indicative of guilt, are magnified into ‘‘confirmations strong as proof of holy writ.” Every wind that blows, every leaf that stirs, every idle whisper of suspicion must be forced to furnish its contribution to build up a bare theory of the detective and fasten suspicion. Facts must fit it or fall before it. On this procrustean bed the victim of cir- cumstances is sometimes forced to lie to be stretched if too short, to be cut off if toolong. The theory is un- bending and inexorable. Under such circumstances it is 463 464 Law AND PRINCIPLES OF EVIDENCE. not to be wondered at that the accused, when plied with questions, or seduced by artful persuasion should be sometimes led into confessions. Language is miscon- strued and tortured to help out the theory. When words are wanting to make the confession full they are easily supplied by the wicked ingenuity of the malicious. 1 Phil. Ev. 307; 4 Bl. Com. 354; Taylor Ev. § 862. Q. What other reasons are there for receiving confes- sions of guilt with caution ? A. It is often the case that persons of timid natures, even when there is no promise of benefit, or fear of injury when openly confronted with a chain of circumstantial evidence and weighed down by the grave suspicion aroused in the minds of others, will make confession in order to be rid of annoyance. Sometimes the innocent will make false statements in order to divert suspicion from themselves and have it directed to others. Plaus- ible stories are often invented, alibis set upand a thousand awkward devices resorted to to convince friends and neighbors of their innocence. These circumstances, while indicative of guilt, are not to be implicity relied on. 1 Lea, 264 (note). 10 North Am. Rev. 418; Wills Cir. Ev. 70-75, Greenl. Ev. § 214 (note) ; Taylor Ev. § 863. Q. Are there not many notable instances of false con- fessions of crime ? A. There are The motives are various. Sometimes they result from a morbid desire to gain infamous notoriety ; sometimes to be rid of life; sometimes to shieid a friend or relation ; and sometimes through hope of benefit, or fear of injury, even where no inducement is held out and no threat made. Q. Do these reasons furnish any ground for excluding confessions altogether ? A. They Jo not. Instances of false confessions are merely exceptions to the general rule. Q. How are confessions of guilt regarded by the courts ? A. When it is shown that they were deliberately and CONFESSIONS. 465 voluntarily made, without the slightest hope of benefit, or the remotest fear of injury, they furnish strong proof of guilt. Q. Were confessions receivable in evidence at common law ? A. They were. Q. How are confessions generally divided ¢ A. Into judicial and extra-judicial confessions. Green. Ev. § 216; Taylor Ev. § 866. Q. When is a confession said to be judicial ? A. It is judicial when made openly in court before the presiding magistrate, taking a preliminary examination, or by putting in a plea of guilty to an indictment before the judge qualified to try the case. Taylor Ev. § 866. Q. When is a confession extra-judicial ? A. They are such confessions as are made elsewhere than before a magistrate, or on plea of guilty to an in- dictment. Q. What is the rule as to confessions ? A. The same rule that applies to admissions in civil cases applies to confessions in criminal cases, and de- tached portions of the confession will not be received, but the whole confession and every relevant part of it should go to the jury. Q. By whom is the truth or falsehood of a confession to be determined ? A. By the jury, and the jury may believe a part and reject a part, or believe it all or reject it all, according as it appears to be reasonable and consistent with the other facts in the case. Q@. Is a confession of guilt, whether judicial or extra- judicial, admissible in evidence to prove the guilt of any person except the one who makes it ? A. It is not. Q. Must a confession, to be admissible, be free and vol- untary ? 59 466 Law AND PRINCIPLES OF EVIDENCE. A. It must. ‘‘It must not be extracted by any sort of threat or violence, nor obtained by any direct or implied promise, however slight, nor by the exertion of any im- proper influence.” 2 Russ. Cr. 6438. Q. If the confession be induced by the slightest hope of benefit, or the remotest fear of injury, will it be re- ceived ? A. It will not. Q. What will be considered a threat or promise ? A. This must always be determined by the sound judg- ment of the presiding magistrate. For any abuse of dis- cretion the appellate court will remand the case for new hearing. Q. Where the law allows one charged with crime to turn state’s evidence, would a confession made with a hope of being permitted to turn state’s evidence be re- ceived ? A. It would not. The confession must be freely and voluntarily made. Q. What is the rule when confession is made to one person after a promise of benefit or threat of injury is made by another party ? A. If the hope of benefit or fear of injury was still operating on the mind the confession should not be re- ceived. Q. What is the presumption in such cases ? A. When promises were held out and threats made, and there is reasonable ground to suppose that they operated on the mind of the prisoner, the presumption is that they continued to operate until the state, by satis- factory evidence, establishes the contrary. Q. When a prisoner is about to make a confession be- fore a magistrate, ought he to be warned not to expect any benefit by making a confession ? A. This seems to be the safer rule and to be clearly dic- tated by the soundest principles in the administration of criminal justice. CONFESSIONS. 467 Q. What is the well-established-rule as to the admissi- bility of confessions induced by religious persuasions and exhortation, and by appeals made to one’s fear of future punishment or hopes of future benefit in the world to come # A. Such confessions will be received. Q. On what ground are such confessions admitted in evidence # * A. Threats as to punishment or hopes of benefit refer to temporal benefit and injury. Q. While this seems to be the general rule, is it well founded in reason ? A. It is not. Why should not such appeals operating on the mind of an ignorant fanatic be sufficient to induce a confession ? Q. Suppose an accused person is made drunk, and as a result of the drunkenness makes a confession, ought such confessions to be received ? A. It has been held that they are admissible. Where a prisoner, however, under the influence of intoxicants, makes a confession and is afterwards warned bv the magistrate that he is not bound by them, but still admits the truth of the confession, they are admissible. 2 Russ. Cr. 648; Phil. Ev. §§ 104-105. Q. May the prisoner be questioned by the magistrate ? A. He may be. Q. If, in the course of such examination by the magis- trate, he confesses, will his confession be admissible ? A. It will if it is free and voluntary. Q. Will confessions made to an officer having the pris- oner in charge be received where the officer simply in- forms him that it would be best to confess ? A. They will not. Taylor Ev. § 873; Greenl. Ev. § 322. Q. Will confessions made to a person not in authority be received ? A. In some jurisdictions they will be, in others not. 468 Law AND PRINCIPLES OF EVIDENCE. On this point there is some conflict of authority. The inclination of the judicial mind seems to be, however, to reject the confession when it was induced by promises of benefit or threats of injury, no matter by whom made and no matter by whom the inducements were held out, provided they operated as inducements on the mind of the accused. Q. Must the inducement offered have reference to the escape of the accused from punishment for the particular crime with which he stands charged, or some mitigation of the punishment ? A. It must. No promise of mere collateral benefit, however great, will operate to exclude the confession. The offer by one of $500 to confess, and confession made as the result of the offer, would not come within the rule of exclusion. Q. Will confession made under a solemn promise of secrecy be received ? A. It will Q. Is it necessary that the inducement should be held out to the accused ? A. Itis not. If communicated to him and it induce the confession asa result of the inducement, it will be excluded. Q. When, as a result of the confession, certain facts are made known, such as the discovery of the stolen goods, or the body of the person murdered, may these facts be shown, and that they were discovered in pursu- ance of directions given by the accused in his confession ? A. They may. That part of the confession which re- lates to the articles found, only, should be admitted. Q. In the case stated, would it be admissible to show that the accused admitted he stole the articles found ? A. It would not unless the confession was free and voluntary. Q. Will confessions of the accused be received against his accomplice ? ConFESsIONS. 469 A. They will not, except pending the criminal project when conspiracy is proven. Q- May confessions be inferred from the conduct and silence of the prisoner ? A. They may. Q. Suppose a witness, when warned of his privilege, testifies to self-criminating facts, will it be received as a confession ? A. It will. 2 Russ. Cr. 649 (note); 1 Phil. Ev. § 108. Q. May acts done in consequence of a confession be shown although the confession be excluded ? A. They may. Q. Will the confessions of an accomplice not in the prisoner’s presence and after the criminal enterprise is ended, be received ? A. They will not. Q. Is aconfession freery and voluntarily made by a per- son that he is the perpetrator of a crime with which an- other stands charged, admissible in favor of the prisoner ? A. It isnot. Best Ev. § 91. Q. What is a plenary confession ? A. “It is when a self-disserving statement is such as, if believed, will be conclusive against the person mak- ing it, at least on the physical facts to which it relates.” Best Ev. § 524. Q. What is a non-plenary confession ? A. ‘ A confession is non-plenary when the truth of the self-disserving statement is not absolutely inconsistent with the existence of the state of facts different from that which it indicates, but only gives rise to a presump- tive inference of their truth and is, therefore, in the na- ture of circumstantial evidence.” 2 Best Ev. § 524. Q When a person, on being charged with the commis- sion of an offense, makes no reply, will it amount to a confession ? A. In certain circumstances it will. 470 Law AND PRINCIPLES OF EVIDENCE. Q. Is it generally held by the courts that to make a confession admissible the person should be warned that it may be used against him ? A. It is not. 1 Phil. Ev. § 520; Joy Confes. §§ 3, 4, 5. Q. Must the confession always be relevant ? A. It must. Q. Where there is a deception practiced on the accused person, and the confession is the result of such deception, will it be received ? A. It will. Price v. State, 18 Ohio St. 418; Com. v. Hanlon, 3 Brewst. 461, 498. Q. If it were made while he was bound ? A. The authorities are in conflict. Q. If it is made in answer to questions which the law would not have compelled him to answer, will it be re- ceived as a confession ? A. It will. Com. v0. Howe, 9 Gray, 110; Steph. Ev. § 45; Eskridge v. State, 25 Ala. 30; Jefferds v. People, 5 Parker, 522, 526; Carroll v. State, 23 Ala. 28; Com. v. Mosler, 4 Penn. St. 264. Q. As a general rule in the United States, must extra- judicial confessions be corroborated to authorize a con- viction ? A. They must; but very slight circumstances will sometimes be deemed sufficient corroboration. United States v. Douglass, 2 Blatch. 207; Gaines v. Relf, 12 How. 472; Hopt v. People, 110 U.S. 574, 583; State v. Guild, 5 Halst. 163, 185; 18 Am. Dec. 404; Stringfellow v. State, 26 Miss. 157; Grier’s Appeal, 101 Penn. St. 412; Bamber v. Savage, 52 Wis. 110; 88 Am. Rep. 733. On the subject of the inadmissibility of confessions when induced by threats or promise, whether made directly or indirectly, see Hopt v. People, 110 U.S. 574, 583; Wilson ». Mason, 1 Cranch, 74; Com. v. Chabbock, 1 Mass. 144; State 2. Garvey, 28 La. Ann. 925; 26 Am. Rep. 123; Bish. Cr. Law, title, Voluntary Confessions; and on the subject of confessions generally and the grounds of exclusion, see CONFESSIONS, 471 Com. v. Howe, 2 Allen, 153; 72 Am. Dec. 163; Shiffler v. Com. 14 Gratt. 652; Belote v State, 36 Miss. 96; State v. Revells, 34 La. Ann. 381; 44 Am. Rep. 436; Gates ». People, 14 Ill. 433; 20 Am. Dec. 491; State v. Guild, 5 Halst. 163, 180; 18 Am. Dec. 404; State v. Carr, 37 Vt. 191; Fife v. Com., 29 Penn. St. 429. Q. A witness is asked a question which criminates him, if answered; he refuses to answer it, and the court di- rects him to reply; is his answer voluntary in such a case so as to be receivable as a confession ? A. It is not, and will not be received. Teachout v. People, 41 N. Y. 7; Williams v. Com., 29 Penn. St. 102; Hendrickson v. People, 10 N. Y. 13; 61 Am. Dec. 721; 1 Greenl. Ev. § 235. Authorities quoted by Steph. Ev. art. 28. Q. How ought the confessions of the wife to acts of adultery to be received ? A. With great caution, particularly when there is the slightest evidence of collusion. Q. Are the confessions of the principal in the first de- gree admissible to prove his guilt on the trial of’ the principal in the second degree ? A. They are, but not to prove the participation of the principal in the second degree. Studstill v. State, 7 Ga. 2; Millen v. State, 60 id. 620. Q. Are the confessions of a party not on trial admissi- ble on trial of a party jointly indicted with him 4 A. They are not. Thompson v. Knight, 23 Ga. 399. Q. Are the confessions of an accomplice admissible against his co-accomplice after the commission of the crime with which they are jointly charged ? A. They are not. It has been held that they will not be received when made one day afterwards. 1 Haw. Cr. Pr. 618; 1 Whart. Cr. Law, § 702. Q. May a confession be corroborated by the circum- stances ? A. It may. Daniel v. State, 63 Ga. 340. 472 Law AND PRINCIPLES OF EVIDENCE. Q. Ought confessions, like admissions, in order to be received, to be specific and have direct reference to the particular crime charged ? A. They ought. 1 Greenl. Ev. § 214; Matthews 2. State, 55 Ala. 187; 28 Am. Rep. 698; 1 Haw. Cr. Pr. 379. Q. Must a confession be shown to be voluntary although its truth is apparent ? A. It must. Greenl. Ev. §§ 219-228; Powell Ev. § 108; 1 Haw. Cr. Pr. 173; State v. Garvey, 28 La. Ann. 925; 26 Am. Rep. 128. Q. On whom is the burden to show that the confession is not voluntary ? A. It is on the accused. Eberhart v. State, 47 Ga. 599. Q. Is not the accused entitled to all the conversation at the time of the confession ? A. He is entitled to all the relevant conversation. Q. Suppose a witness who is testifying hears only a part of it? A. Then he may state what he did hear. Q. Suppose a client makes a confession to his attorney, will the attorney be forced to disclose it ? A. He will not. Where the relation of attorney and client exists he may not testify either as to admissions or confessions. CHAPTER XIV. FRAUD AND PERJURY. Q. When was the statute of frauds and perjuries en- acted 4 A. During the reign of Charles I. Q. Have the provisions of the statute been generally adopted in the United States ? A. With very slight modifications and restrictions that statute has been re enacted into the codes of most of the American states. The concurrent verdicts of all civilized and enlightened peoples have borne willing and ample testimony to the far-reaching wisdom and salutary influ- ence of the statute. Its enforcement has proven of ines- timable value to the proper regulation of the conduct of persons engaged in trade, and has tended to establish a solid basis for all commercial pursuits. Q. What very important provision is contained in the statute touching the sale, or assignment of lands, or any interest in lands ? A. Every sale, or assignment of lands, or any interest therein must be in writing, signed by the party to be charged, or by his agent thereunto by him lawfully au- thorized. Q. What is the language of the statute ? A. By 29 Charles II: ‘‘No action shall be brought whereby to charge any person upon any contract of sale of lands, tenements or hereditaments, or of any interest in or concerning them, 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.” 1 Add. Con. 200. Q. Does this refer to contracts to execute a sale of land or interest in lands in futuro? 60 473 474 LAW AND PRINCIPLES OF EVIDENCE. A. It does. Scott v. McFarland, 18 Mass. 309; Moore v. Wade, 8 Kans. 380; Pomeroy v. Winship, 12 Mass. 514; Richards v. Richards, 9 Gray, 313; Hughes v. Moore, 7 Cranch, 176. Q. What force and effect did such sales or transfers have, when not made in writing according to the stat- ute ? A. They simply created estates at will. Q. Will lands pass by parol contract in the United States ? A. They will not, where the contract is executory. OoProPre §22 Law AND PRINCIPLES OF EVIDENCE. Q. When grantor has no title at time of conveyance, but afterwards acquires one, does it inure to the grantee? A. It does. See as to estoppel by deed, Herman Ks- toppel, 229; Graff v. Castleman, 16 Am. Dec. 754. Q. When grantor acquires title subsequently, would the same inure to one holding a quitclaim deed, as against a second grantee, from same grantor ? A. It would not. Q. What is the rule as to the admissibility of deeds in evidence which are more than thirty years old? A. They are admissible without proof of execution when they are fair on their face, come from the proper custody and possession has been consistent therewith. Q. Is a deed which has been improperly recorded notice to a subsequent purchaser ? A. It is not. Q. When a deed has not been recorded, what is neces- sary before it will be received in evidence ? A. Its execution must be shown by calling the wit- nesses to the execution if in life and not beyond the jur- isdiction of the court, and in the latter case, by proof of their signatures. Q. Is the record of any instrument whose record is not required by law constructive notice to purchasers ? A. It is not. Q. When the vendor warrants the title to the vendee, his heirs and assigns, do the covenants in the deed gen- erally follow the land in the hands of subsequent pur- chasers ? A. They do, and each purchaser has all the rights un- der the deed that any prior purchaser had, unless such covenants have been negatived. Suit for breach of war- ranty may be brought against any previous warrantor. Q. May all the covenants which run with the land be enforced ? DEEDS. 623 A. They may, and the holder may proceed against all the previous covenantors at the same time or separately, until he is satisfied for the breach. Q. If “‘A” warrants a title to ‘“B” and ‘“‘B” to “‘C” and “C” sells to ‘‘D,” without warranty, may ‘‘D,” when evicted by title paramount, proceed against ‘‘A” and ‘‘B” on the breach ? A. He may. Q. Suppose that ‘‘C,” in the case stated, sells the land in separate lots to ‘‘D,” ‘‘E” and ‘‘F,” and each of them is evicted by title paramount to that of ‘‘A” and ‘‘B,” may each of them proceed against ‘‘A” and ‘‘B?” A. He may. Q. What is the general rule as to covenants ? A. “There must always be a privity between the plaintiff and defendant to make the defendant liable to an action of covenant; the covenant must respect the thing granted or denied; when the thing to be done, or omitted to be done, concerns the land or estate, that is the medium which creates the privity between the plain- tiff and defendant.” If the covenant is personal it does not run with the land. Q. When the covenant relates to the land and charges it with a burden, does the covenant run with the land ? A. It does. Masury v. Southworth, 9 Ohio St. 340, 358; R. Co. v. Reeves, 64 Ga. 492. Q. Where the nature of the covenant is such that it runs with the land, may the parties do away with it by express agreement ? A. They may. Q. If the covenant be such as will not run with the land, may the parties, by agreement, incorporate it so as to make it run with the land ? A. They may not. If the covenant be in reference to matters entirely collateral to the land then it will only be enforced as to them. 624 LAw AND PRINCIPLES OF EVIDENCE. Q. What is sometimes considered as a test as to whether a covenant is personal or runs with the land ? A. The question is, whether it benefits or injures the covenantee; whether the land is appreciated or depre- ciated in value by reason of the covenant. Q. When there is a permanent charge imposed on land, does it run with the land? A. It does. Manuf. Co. v. Water Lot Co., 53 Ga. 689. Q. Where one leases another mill property with a cove- nant that he will not erect another mill on the land, may the assignee of the lessee enforce the covenant # A. He may. Q. When covenantor agrees to tear down one build- ing and substitute it with another to be built according to certain specifications, will such covenant run with the land ¢ A. It will, and for any breach the assignee has a remedy. Q. Where the word “‘assigns” is not mentioned in the covenant, may it be shown by parol that it was in- tended ? A. It may. ‘‘The rights and liabilities of those who take the estate and possess the land during the term flow from a privity of estate and not from an assignment of right or contract. If the covenant does not, or cannot, run with the land, no words of assignment can create a. privity; if privity of estate be created no words of as- signment are necessary.” Q. What is the distinction between covenants, real and personal ? A. Covenants real attach to and follow the land and covenants personal relate to the person and do not follow the land. Redwine v. Brown, 10 Ga. 314. When the covenants are personal the right of action for damages for breach is in the person originally contracting, or his. executors or administrators. When the covenant is real the action may be brought by the heirs or by any one DEEDS. 625 in privity in whose hand the covenant may come with the land. Q. May all covenants be the subject of equitable as- signment, like other choses in action ¢ A. They may. When they are personal the party takes them subject to all the equities between the original par- ties. When they attach to the land the holder does not so take them. Q. When the covenant attaches to the land and there is a breach, where ought suit to be brought ? A. Where the land lies; if they are personal they are transitory and should be brought where the covenantor resides. Q. When there is a right of way granted, does this follow the land? A. It does. Q. In order to authorize a suit for breach of covenant of warranty, what must be shown ? A. An actual eviction by title paramount from the possession of the whole or part of the premises. Q. Is a regular sale under judicial process against the warrantor sufficient evidence of eviction ? A. It is. Q. When he was not a party in an action brought to recover the land against his vendee, but had notice to appear and defend the title, will this be sufficient to bind him as warrantor ? A. It will. Q. On whom is the burden to show eviction ? A. It is on the plaintiff. Q. Does the simple endorsement of a deed usually pass any title ? A. It is held that it does not; nor will the mere de- struction of the deed have the effect to revest the title. Farrar v. Farrar, 4 N. H. 191; 17 Am. Dec. 410. 79 626 Law AND PRINCIPLES OF EVIDENCE. Q. Does a quitclaim or release have the effect to pass the title ? A. It does. Thornton v. Mulquinne, 79 Am. Dec. 548; Kerr v. Freeman, 33 Miss. 292; Day v. Holmes, 103 Mass. 309; Rowe v. Beckett, 30 Ind. 162; Touchard v. Crow, 20 Cal. 150; Kyle v. Kavanagh, 103 Mass. 356: 4 Am. Rep. 560; Ketchum v. Evertson, 7 Am. Dec. 384. Q. Where one makes a quitclaim deed and afterwards acquires a title, does it inure to the benefit of his vendee ? A. It does not. A quitclaim simply passes the present interest, and the doctrine of estoppel cannot be invoked by the holder of a quitclaim deed. Thompson v. Ham- ilton, 23 Am. Dec. 620; Young v. Clippinger, 14 Kans. 150; Frink v. Darst, 58 Am. Dec. 575; Reynolds v. Chan- dler River Co., 43 Me. 517; Webster v. Webster, 66 Am. Dec. 705; Woodcock v. Bennet, 13 id. 568. Q. May a party accepting a quitclaim deed recover the purchase money when his title fails ? A. He may not, unless there be fraud. Q. How are covenants usually divided ? A. Into express and implied covenants. They are ex- press when it is distinctly indicated by the language of the covenant; they are implied when all the circum- stances show that the party intended to enter into a covenant. They may be dependent or independent. They are dependent when neither party can insist on the performance of one covenant without the other; they are independent when one can be enforced without the other. Funk v. Voneida, 14 Am. Dec. 617; Sumner v. Williams, 5 id. 83; Webster 0. Conley, 92 id. 234; Rector v. Purdy, 13 id. 494; Greene v. Linton, 31 id. 708; Haw- ley v. Mason, 33 id. 522; Bacon v. Lincoln, 50 id. 765; Wilson v. Wood, 88 id. 231; 17 N. J. Eq. 216. Express covenants are construed strictly against the covenantor. Q. What will constitute a breach so as to enable any- one holding under the covenant to sue for damages ? DEEDs. 627 A. Eviction, by title paramount; or when covenantor did not have the fee, and the possession of covenantee or his assigns is disturbed. Anything interfering with the seisin isa breach. Lot v. Thomas, 2 Am. Dec. 354, 356; Pate v. Mitchell, 79 id. 114; Westbrook v. McMillan, 26 id. 187; Dickson v. Desire, 66 id. 661. Q. Is not the grantee bound to use every reasonable effort to hold possession ? A. He is; and if he yield possession without any effort to maintain the title, the burden will be on him to show title paramount. Peck v. Hensley, 20 Tex. 678; Hunt v. Amidon, 40 Am. Dec. 283-5; Smith v. Shepard, 25 id. 432. See, as to what constitutes breach, 1 Dev. Deeds, 410, et seq.; Crafts v. Dexter, 42 Am. Dec. 667-9. Q. In order to authorize a suit for breach of warranty, must there not be an actual disturbance of the grantee’s possession ? A. There must. King v. Kerr, 22 Am. Dec. 777; Booker v. Bell, 6 id. 641. The covenantee may always maintain suit when there is title paramount by which his seisin is disturbed; but it must be disturbed. If he yield without any fight he may still sue, but the burden is on him to show that he had to yield. Q. May one sue a previous warrantor for breach until he has made good his own breach of covenant to his grantee ? A. He may not. Q. Does a covenant that the land is free of incum- brance run with the land ? A. It does not. Logan v. Moulder, 33 Am. Dec. 3839; Baker v. Hunt, 89 id. 346; Moore v. Merrill, 17 N. H. 75;. King v. Gilson, 83 Am. Dec. 269. In some of the states such a covenant does run with the land. Q. Does a covenant that no whiskey is to be sold on his land or that he will not quarry rock on any other part of his land, run with the land ? A. It does not. 628 LAW AND PRINCIPLES OF EVIDENCE. Q. When bond for title is recorded, and subsequent bona fide purchaser records his deed in time, will he be protected ? A. He will; there being no law requiring the record of bond for titles, its record is no notice. Q. When the purchaser fails to record in time and the claim set up to the land is by wrongful holders, will he be prejudiced by the failure to record ? A. He will not. Q. Will a purchaser at sheriff’s sale, or an administra- tor’s sale, who records his deed in time, be protected in the same manner as if he had purchased from the judg- ment debtor or the intestate directly ? A. He will. Q. Is the record of any instrument, whose record is not required by law, constructive notice? A. It is not. Q. When a person uses not his own but a fictitious name in signing a deed, is he bound ? A. He is. Q. When there is no grantee mentioned in a deed, is it a good deed ? A. It is not, but it is held to be void; if, however, the grantee be sufficiently described to indicate clearly who he is, the deed is not void. Q. Where there are no attesting witnesses to a deed, how should its execution be shown ? A. By proof of the handwriting of the maker. Q. When a deed is executed and a material part left blank and afterwards filled, will it be valid ? A. It is held not to be. Whitaker v. Miller, 83 Ill. 381; Williams v. Crutcher, 35 Am. Dec. 422; Davenport v. Sleight, 31 id. 420; Viser v. Rice, 33 Tex. 139; Wunder- lin v. Cadogan, 50 Cal. 613; Ingram 2. Little, 14 Ga. 173; 58 Am. Dec. 549. Itis held in some of the states DEEDS. 629 that the maker of the deed may authorize the blanks to be filled and that the authority may be given by parol. Q. How and by whom, may a deed be delivered ? A. It may be delivered by the grantor or by another person for him. It may be delivered on the day it is ex- ecuted or afterwards. It may be given toa stranger to be delivered to the grantee after the death of the grantor. In each case the delivery is good. Chess v. Chess, 21 Am. Dec. 350; Willborn v. Weaver, 17 Ga. 267; Hughes v. Kasten, 20 Am. Dec. 230; Duncan v. Pope, 47 Ga. 445; Mather v. Corliss, 103 Mass. 568; Church v. Gilman, 30 Am. Dec. 82; Foster v. Mansfield, 37 id. 154, cited in Lawson Rights, Remedies and Practice, see § 2276 (note); Wall v. Wall, 30 Miss. 91; Regan v. Howe, 121 Mass. 424; Dearmond v. Dearmond, 10 Ind. 191; Mc- Clure v. Colclough, 17 Ala. 89; Burkholder v. Casad, 47 Ind. 418; Verplank v. Sterry, 7 Am. Dec. 348, and other authorities there cited. See also §§ 3805-3810. Q. Is not delivery a question of intent ? A. It is. Q. May it not be shown that a deed in the hands of a grantee was never intended for a delivery, or that he came by the possession fraudulently ? A. It may. Q. Does the title pass until there is delivery and ac- ceptance ? A. It does not, but both delivery and acceptance will be presumed. When deed is in possession of the grantee it takes effect from date of delivery. A. May a deed be delivered to one for the use of another? Q. It may. Q. When one has actual notice of a deed, may he justly complain that he did not have constructive notice by the record or that the deed was improperly probated or acknowledged ? A. He may not. If he had actual or constructive notice it is sufficient. 630 LAw AND PRINCIPLES OF EVIDENCE. Q. When the description of land in a recorded deed is wholly erroneous, will the record amount to constructive notice to subsequent bona fide purchasers ? A. It will not. Q. When is a deed considered as recorded ? A. Generally from the day it is left with the clerk for record. The clerk should indorse on the deed when it was left for record. Q. When the officer fails to make such indorsement, may it be shown by parol on what day it was delivered ? A. It may. As to notice of unregistered deed, see Morrison v. Wilson, 73 Am. Dec. 593; Morrison v. Kelly, 74 id. 169; Burkhalter v. Ector, 25 Ga. 55; Galland v. Jackman, 85 Am. Dec. 172; Ins. Co. v. Ledyard, 8 Ala. 866; Stevens v. Morse, 47 N. H. 532; McMechan v. Grif- fing, 15 Am. Mec. 198; McCaskle v. Amarine, 12 Ala. 17. Q. When a purchaser has notice of any fact which ought to put an ordinarily prudent man on inquiry as to a prior conveyance, or of the lack of authority in the person from whom he is about to purchase, to sell and push his inquiries, may he take advantage of his want of notice ? A. He may not. If the circumstances were of such a character as to put an ordinarily prudent man on notice he will be bound. Q. When a person was a subscribing witness to a prior deed and becomes a purchaser, will the factof his attest- ation operate as constructive notice ? A. It will not. Q. When one is in possession of land and his possess- ion is open and visible, exclusive and adverse, but he has failed to record his deed in time, will the fact. of posses- sion operate as constructive notice to subsequent pur- chasers ? A. In most of the states it is held that it will operate as constructive notice. See Lawson Rights, Remedies and Practice § 3831; Knox v. Thompson, 13 Am. Dec. DEEDs. 631 246; Taylor v. Lowenstein, 50 Miss. 278; Tunnison v. Chamblin, 88 Ill. 378; McConnell v. Reid, 38 Am. Dec. 124; Baynard v. Norris, 46 id. 647; McLaughlin v. Shep- herd, 52 id. 646; Wyatt v. Elam, 32 Ga. 201; 68 Am. Dec. 518; Hunter v. Watson, 73 id. 543. Q. Does the fact that the officer fails to index the record of a deed affect the question of constructive notice ? A. It does not, nor does the fact‘that he records it in another book than that indicated by the index. Lawson Rights, Remedies and practice § 3835; Schell v. Stein, 18 Am. Rep. 416; Chatham »v. Bradford, 50 Ga. 327; Ins. Co. v. Dake, 87 N. Y. 257; Stockwell v. McHenry, 52 Am. Dec. 475; Throckmorton v. Price, 28 Tex. 606; 91 Am. Dec. 324. Q. What does a deed pass when properly executed and delivered ? A. Everything necessary to the use and enjoyment of the land conveyed. Q. When an ambiguity occurs in the deed, how is the same to be construed ? A. Most strongly against the party making the deed. This doctrine rests on the principle that when a party uses language in an instrument which is ambiguous and the language is open to two constructions, one favorable to the maker, and the other to the party who holds the instrument, that construction shall be adopted which is unfavorable to the maker. Q. Ought the terms of a deed to be so construed as to give effect to it ? A. They ought, and to every part of the deed, and when it is possible to avoid defeating the deed, it ought to be so construed. Q. When general words in a deed follow particular words, how should the general words be construed and restricted ? A. Their meaning and construction should be gathered from the particular words. 632 Law AND PRINCIPLES OF EVIDENCE. Q. In construing deeds and other instruments, what cardinal rule should be observed. A. The intention of the parties should be carefully sought for by an attentive perusal of the whole instru- ment. If that intention is manifest from the terms em- ployed, effect should be given to it without resort to ex- trinsic evidence. If it cannot, then parol evidence may be used to explain latent ambiguities, and all the circum. stances surrounding the execution may be looked to. Q. By whom should deeds and other instruments be construed ? A. ‘The construction of a contract in writing, as of all written instruments, belongs to the court. It is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed, as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally when those words or circumstances are referred to them.” Lawson Rights, Remedies, § 2315; Lull v. Cass, 43 N. H. 62; Montgomery v. Pickering, 116 Mass. 247; Wray v. Wray, 32 Ind. 126; Spaids v. Barrett, 57 Ill. 289; Cad- wallader v. West, 48 Mo. 483; Corbin v. Sistrunk, 19 Ala. 203; Newson v. Thighen, 30 Miss. 414; Leppoc v. Bank, 82 Md. 1386. Q. Do the same rules apply in the construction of deeds as in other instruments ? A. Theydo. The following rules for construing deeds found in Lawson’s Rights, Remedies and Practice, page 2282, are so eminently just and practical that they are here inserted in full: ‘‘ The construction of deeds follows the rules of law in regard to the construction of other contracts in writing. The deed will be construed favor- ably so as to uphold the intention of the parties when possible. It is construed most strongly against the grantor, and when a deed will inure several ways the grantee may elect which way to take it, but it is said that the rule that a deed shall be construed most strongly against the grantor, and favorably to the grantee, in re- DExEbs. 633 spect to the thing granted, and the estate conveyed is the last one which courts apply, and ought never to be re- sorted to so long as a satisfactory result can be reached by other rules of analysis and construction. All the parts of a deed are to be considered and construed together; every part should, if possible, be made to take effect and every word to operate, if, by law, it may, according to the intention of the parties. The particular intent will govern the general intent, and parts of a deed inconsistent with the manifest intent, will berejected. When the terms are plain and unambiguous, the court should limit its in- quiry to what the words of the deed express, without re- gard to any intention independent of the words. Incon- Sistencies in a deed are to be reconciled, if possible. The old rule that the earlier clause controls the later one, is only applicable when reconcilement is impossible. So the construction of a deed which requires the rejection of a whole clause thereof, will not be adopted, except from unavoidable necessity. The clause may be transposed, so as to give it its apparent construction. The intention of parties to a deed may be ascertained from the words of the grant; from the surrounding circumstances, in which may be considered the position of the parties and the sub- ject of the grant at and subsequent to the transaction. The grammatical construction is not necessarily to be followed, for neither false English nor bad Latin will mat- ter, when the meaning of the party is apparent. A deed untechnical, ungrammatical and totally at variance with all the recognized rules of orthography, may be valid if there be sufficient words to declare clearly and legally the party’s meaning. The printed part of a deed is as much a part of the deed as the written part, and the parties are as much bound by one as the other. Punctuation may be wholly disregarded, if necessary, and will only be re- sorted to to settle the meaning of an instrument after all other means fail. The force and legal effect of a deed is to be determined by the court as matter of law; questions relative to the location of the thing granted, the extent of its boundaries, the monuments intended by certain 80 634 Law AND PRINCIPLES OF EVIDENCE. names, etc., are for the determination of the jury.” Kim- ball v. Semple, 25 Cal. 449; Stanley v. Green, 12 id. 148; Long v. Wagoner, 47 Mo. 178; Richardson v. Palmer, 38 N. H. 218; Reny v. Shoneberger, 26 Am. Dec. 95; Pike v. Monroe, 58 id. 751; Dodge v. Walley, 22 Cal. 224; 83 Am. Dec. 61; Donahue v. McNulty, 24 Cal. 411; 85 Am. Dec. 78. Q. What is a well-established rule in courts of equity, as to the delivery of deeds in escrow ¢ A. When it becomes necessary to protect the rights of the parties against intervening claims, equity will con- sider the second delivery as relating back to the first. Wellborn v. Weaver, 17 Ga. 267; 63 Am. Dec. 2353. Wheelwright v. Wheelwright, 2 Mass. 447; 3 Am. Dec. 66; Simpson v. McGlathery, 52 Miss. 723. Q. When a deed has been obtained by fraud or duress, or by any means which are unconscionable, will a court of equity compel its surrender and cancellation ? A. It will, unless one party is as much at fault as the other, in which the court will leave them where it finds them. When both are guilty of constructive fraud, but. the parties are not 7m pari delicto, equity will interpose to: prevent the consummation of the fraud. Q. When the land is conveyed by metes and bounds, and afterwards sets forth the number of acres, does the statement as to the number of acres amount to a cove- nant ? A. It does not, but the grantee is bound by the metes and bounds. Q. May not the tract of land be described by the name of the place as generally known in the locality ? A. It may; as ‘‘my Rose Hill place, containing one thousand acres,” or “‘as a certain tract of land known as the Black Dirt place, containing one thousand acres, and more particularly described in amap hereto attached.” Q. May not a deed be void for indefiniteness in descrip- tion ? DEEDS. 635 A. It may, but if that which is uncertain can be made certain by resort to extrinsic evidence, the deed will not be held void. Q. When a particular description follows a general description, which will control ? A. The particular description. Q. Do the same rules apply to the construction of deeds as other instruments 4 A. They do. Q. When in a deed a public street is mentioned as a boundary, what is the general rule as to the title of the grantee in the street ? A. He takes title to one-half when the grantor has the fee. Q. When such street is not a public street, and has not been dedicated to the public, what is the rule ? A. The grantee does not get the fee to the middle, but simply an easement. Cox v. Freedley, 33 Penn. St. 124; Trutt v. Spotts, 87 id. 339; Robinson v. Myers, 67 id. 9. Q. Where the property is sold and described as being bound by certain streets, does this amount to a covenant that the grantee shall have the use of the street ? A. It does. Alden v. Murdock, 13 Mass. 256; Tinges v. Mayor, 51 Md. 600. Q. When the land is described as bounded by a fresh water stream, what is the rule ? A. When the stream is not navigable it is understood that the grantee takes title to the middle of the stream. Q. When owner of the land in a city opens a street and sells off abutting lots on each side, what is the rule as to the street? A. The fee remains in the grantor, but there is an implied covenant by the grantor that the street shall be kept open and that the owners of the lot shall enjoy the easement forever. Alden v. Murdock, 13 Mass. 256; 636 Law AND PRINCIPLES OF EVIDENCE. Mayor v. United States, 10 Pet. 663, 720; Transylvania University v. Lexington, 3 B. Mon. 25, 27. Q. When a deed calls for a highway as a boundary, and gives distances, and it appears that the measure- ment does not reach to the highway, which will control ? A. The highway is held to be the boundary. Q. When the abutting owners on streets take the fee, is this subject to the easement of the public to pass along the streets ? A. It is. Q. When the boundary set forth in the deed is a navigable river, what is the rule ? A. The boundary extends to low water mark, and the ownership of the soil is in the adjoining proprietor. Q. What interest does one who takes land under a deed acquire ? A. He acquires an interest in everything below the surface and above. Q. May the state assert its rights over any part of the soil ? A. It may, but it is always provided that just com- pensation shall be paid the owner. Q. What is this right in the state or general govern- ment called ? A. The right of eminent domain. Q. What general provision is made in the laws of most of the states in reference to taking private property for public use? A. Private property may not be taken or damaged without just compensation. MAXIMS. MAXIMS. Probationes debent esse evidentes (id est) perspicue et faciles intelligz. Proofs ought to be made evident (that is) clear and easy to be understood. Coke Litt. 283. Sermo relata ad personam, intelligt debet de conditione persone. A speech relating to the person is to be understood as relating to his condition. 4 Coke, 16. Testibus deponentibus in part numero dignioribus est credendum. When the number of witnesses is equal on both sides, the more worthy are to be believed. Coke, 4 Inst. 279. Qut accusat integree famee sit et non criminosus. Let him who accuses be of clear fame, and not crimi- nal. Coke, 3 Inst. 26. Causa cause est causa causati. The cause of a cause is the cause of the effect. 12 Mod. 639. Ei incumbit probatio qui dicit, non qui negat. The burden of the proof lies upon him who affirms, not him who denies. 1 Greenl. Ev. § 74. Legis interpretatio legis vim obtinet. The construction of law obtains the force of law. Branch Princ. Mens testatoris in testamentis spectanda est. In wills the intention of the testator is to be regarded. Jenk. Cent. Cas. 277. Plus valet unus oculatus testis, quam aurati decem. One eye witness is better than ten ear ones. Coke, 4 Inst. 279. 638 MAXIMS. Error nominis nunquam nocet, st de identitate ret constat. Mistake in the name never injures, if there is no doubt. as to the identity of the thing. 1 Duer Inst. 171. Omne sacramentum debet esse de vera scientia. Every oath ought to be founded on certain knowledge. Coke, 4 Inst. 279. Animus hominis est anima scripte. The intention of the party is the soul of the instru- ment. 3 Bulstr. 67. Nemo tenetur informare qui nescit sed quisquis sctre quod informat. No one who is ignorant of a thing is bound to give in- formation of it, but every one is bound to know that. which he gives information of. Branch Prine. Nemo tenetur edere instrumenta contra se. No man is bound to produce writings against himself. Bell Dict. Proviso est providere presentia et futura, non pre- terita. A proviso is to provide for the present and the future, not the past. 2 Coke, 72. Nemo presumitur alienam posteritatem suc preetu- - lisse. No one is presumed to have preferred another’s pos- terity to his own. Wingate Max. 285. Juratores sunt judices factt. Jurors are the judges of the fact. Jenk. Cent. Cas. 68. Contemporanea expositio est optima et fortissima in lege. A contemporaneous exposition is the best and most powerful in law. Coke, 2nd. Inst. 11; Broom Max. 3d Lond. ed. 608. Absoluta sententia expositore non indiget. An absolute, unqualified sentence or proposition, needs. no expositor. Coke, 2 Inst. 533. MaAxXIMs. 639 Principia probant, non probantur. Principles prove, they are not to be proved. 3 Coke, 40. Verba aliquid operari debent. Debent intelligz ut alr- quid operantur. Words ought to have some effect. Words ought to be interpreted so as to give them some effect. 8 Coke, 94. Verba accipienda sunt secundum subjectam materiam. Words ought to be interpreted according to the sub- ject-matter. 6 Coke, 6, n. Delegata potestas non potest delegart. A delegated authority cannot again be delegated. Coke, 2 Inst. 597; Story Ag. § 13. Allegari non debuit quod probatum non relevat. That ought not to be alleged, which, if proved, would be irrelevant. 1 Chanc. Cas. 45. Res inter alios acta altera nocere non debet. Things done between strangers ought not to injure those who are not parties to them. Coke Litt. 132. Perjurt sunt qui servatis verbis juramentt dectpiunt aures eorem quit accuptunt. They are perjured who, preserving the words of an oath, deceive the ears of those who receive it. Coke, 3 Inst. 166. In criminalibus, probationes debent esse luce clariores. In criminal cases, the proofs ought to be clearer than the light. Coke, 3 Inst. 210. Fraus latet in generalibus. Fraud lies hid in general expressions. Confessio facta in judicio omni probatione major est. A confession made in court is of greater effect than any proof. Jenk. Cent. Cas. 102. Interpretatio fienda est ut res magis valeat quam pereat. Such a construction is to be made that the subject may have an effect rather than none. Jenk. Cent. Cas. 198. 640 MAXIMS. Nemo tenetur jurare in suam turpitudinem. No one is bound to testify to his own baseness. Verba cequivoca ac in dubio sensu posita, intelliguntur digniori et potentiort sensu. Equivocal words and those in a doubtful sense are to be taken in their best and most effective sense. 6 Coke, 20. Verba posteriora propter certitudinem addita, ad pri- ora que certitudine indigent, sunt referenda. Subsequent words added for the purpose of certainty are to be referred to preceding words in which certainty is wanting. 6 Coke, 236. Derivarva postestas non potest esse major primitiva. The power which is derived cannot be greater than that from which it is derived. Wingate Max. 36. In stipulationibus id tempus spectatur quo contrahi- mus. In agreements, reference is had to the time at which they were made. Dig. 50, 17, 144, 1. Affirmanti, non neganti, incumbit probatio. The proof lies upon him who affirms, not on him who denies. Phillips Ev. 493. Contra non valentem agere nulla currit preescriptio. No prescription runs against a person unable to act. Broom Max. 3d Lond. ed. 810. Que accessiorium locum obtinent, extinguuntur cum principales res perempte. fuerint. When the principal is destroyed, those things which are accessory to it are also destroyed. Broom Max. 3d Lond. ed. 439. Veritas habenda est in juratore, justitia et judicium an jgudice. Truth is the desideratum in a juror; justice and judg- ment ina judge. Bracton, 189, b. Vox emissa volat, litera scripta manet. Words spoken vanish, words written remain. Broom Max. 3d Lond. ed. 594. Maxims. 641 Simplex et pura donatio dici poterit, ubi nulla est ad- jecta conditio nec modus. A gift is said to be pure and simple when no condition or qualification is annexed. Bracton, 1. Non quod dictum est, sed quod factum est, inspicitur. Not what is said, but what is done, is to be regarded. Coke Litt. 36. Verba chartarum fortius acctpiuntur contra profer- entem. The words of deeds are to be taken most strongly against the person offering them. Broom Max. 3d Lond. ed. 72, n. 529. Verba currentis monetce, tempus solutionis designant. The words ‘‘current money ” refer to the time of pay- ment. Dav. 20. Quotiens idem sermo duas sententias exprimit, ea po- tissimum excipiatur, que ret gerende optior est. Whenever the same words express two meanings, that is to be taken which is the better fitted for carrying out the proposed end. Dig. 50, 17, 67. Non differunt quee concordant re, tametst non in verbis aisdem. Those things which agree in substance, though not in the same words, do not differ. Jenk. Cent. Cas. 70. Natura fidejussionis sit strictissimi et non durat, vel extendatur de re ad rem, de persona ad personam, de tempore ad tempus. The nature of the contract of suretyship is strictissimi juris, and cannot endure, nor be extended from thing to thing, from person to person, or from time to time. Burge. Sur. 40 In disjunctivis sufficit alteram partem esse veram. In disjunctives it is sufficient if either part be true. Wingate Max. 13. Generalia specialibus non derogant. Things general do not derogate from things special. Jenk. Cent. Cas. 120. 81 642 Maxims. Frustra probatur quod probatum non relevat. It is vain to prove that, which, if proved, would not. aid the matter in question. Broom Max. 3d Lond. ed. 255. Identitas vera colligitur ex multitudincee signorum. True identity is collected from a number of signs. Bacon Reg. 29. Generalis clausaula non porrigitur ad ea que antea specialiter sunt conprehensa. A general clause does not extend to those things which are previously provided for specially. 8 Coke, 154. Debitor non presumitur donare. A debtor is not presumed to make a gift. Dig. 50, 16, 108. Derogatur legit cum pars detrahitur; abrogatur legi, cum prorsus tollitur. To derogate from a law is to take away part of it; to abrogate a law is to abolish it entirely. Dig. 50, 16, 102. Clausula generalis non refertur ad expressa. A general clause does not refer to things expressed. 8 Coke, 154. Cessante ratione legis cessat, et ipsa lex. Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. 4 Coke, 38. Valeat quantum valere potest. It shall have effect so far as it can have effect. 4 Kent Com. 493. Quod necessarie intelligitur id non deest. What is necessarily understood is not wanting. 1 Bulstr. 71. Non refert quid notam sit judici, st notum non sit in forma judicit. It matters not what is known to the judge, if it is not known to him judicially. 3 Bulstr. 115. Maxims. 643 Jus jurandum inter alium factwm nec nocere nec pro- desse debet. An oath made in another cause ought neither to hurt nor profit. Coke, 4 Inst. 279. In omnibus obligationibus, in quibis dies non ponitur, preesentz die debetur. In all obligations, when no time is fixed for the pay- ment, the thing is due immediately. Dig. 50, 17, 14. Idem est non probari et non esse; non deficit jus, sed probatio. What does not appear, and what is not, are the same; it is not the defect of the law, but the want of proof. Ex antecidentibus et consequentibus fit optima inter- pretatio. The best interpretation is made from antecedents and consequents. Broom Max. 3 Lond. ed. 513. Cique in sua arte credendum est. Every one is to be believed in his own art. 9 Mass. 227. Copulatio verborum indicat acceptationem in eodem sensu. Coupling words together shows that they ought to be understood in the same sense. Broom Max. 3 Lond. ed. 523. Contra negantem princtpia non est disputandum. There is no disputing against one who denies princi- ples. Coke Litt. 43. Ea est accipienda interpretatio, quee vitio caret. That interpretation is to be received which is free from fault. Bacon Max. Reg. 3, p. 47. Consuetudo loci observanda est. The custom of the place isto be observed. 4 Coke, 28b. Confirmatio omnes supplet defectus, licet id quod actum est ab initio non valuit. Confirmation supplies all defects, though that which has been done was not valid in the beginning. Coke Litt. 295b. 644 Maxims. Generale nihil certum implicat. A general expression implies nothing certain. Win- gate Max. 164. Generalia preecedunt, spectalia sequuntur. Things general precede, things special follow. Branch Princ. In consuetudinibus non diuturnitas temporis sed soli- ditas rationis est consideranda. In customs, not the length of time, but the strength of the reason, should be considered. Coke Litt. 141. In verbis non verba sed res et ratio queerenda est. In words not the words, but the thing and the mean- ing, is to be inquired after. Jenk. Cent. Cas. 132. Juramentum est indivisible, et non est admittendum in parte verum et in parte falsam. An oath is indivisible; it is not to be held partly true and partly false. Coke, 4 Inst. 274. Negatio destruit negationem, et ambee faciunt affirma- tionem. A negative destroys a negative, and both make an affirmative. Coke Litt. 146. Pacta dant legem contractut. Agreements give the law to the contract. Halkers Max. 118. Quee legt communi derogant stricte interpretantur. Those things which derogate from the common law are to be construed strictly. Jenk. Cent. Cas. 29. Scepenumero ubi proprietas verborum attenditur, sen- sus veritas amittitur. Frequently when the propriety of words is attended to, the meaning of truth is lost. 7 Coke, 27. Regula est, juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. The rule is, that ignorance of the law does not excuse, but that ignorance of the fact may oxcuse a party from the legal consequences of his conduct. Broom Max. 3 Lond. ed. 232. MAXIMS. 645 Lex rejictt superflua pugnantia, ncongrua. The law rejects superfluous, contradictory and incon- gruous things. Jenk. Cent. Cas. 133, 140, 176. In re dubia majis inficiato quam affirmatio intells- genda. In a doubtful matter, the negative is to be understood rather than the affirmative. Godb. 87. In re dubia benigniorem interpretationem sequi, non minus justius est, quam tutius. In a doubtful case, to follow the milder interpretation is not the less the more just than it is the safer course. Dig. 50, 17, 192, 2, 28, 4, 3. Designatio unius est exclusio alterius, et expressum facit cessare tacitum. The appointment or designation of one is the exclusion of another; and that expressed makes that which is im- plied cease. Coke Litt. 210. Casus fortuitus non est supponendus. A fortuitous event is not to be presumed. MHardr. 82 arg. In rebus manifestis errat qui auctoritates legum alle- gat; quia perspicua vera non sunt probanda. He errs who alleges the authority of the law in things manifest; because obvious truths need not be proved. 5 Coke, 67. Inesse potest donationi, modus, conditio sive, causa; ut modus est; st conditio; quia causa. In a gift, there may be manner, condition and cause ; as, introduces a manner; 7, a condition ; because, a cause. Dy. 138. Mala grammatica non vitiat chartam; sed in expost- tione instrumentorum mala grammatica quoad fiert posstt evitanda est. Bad grammar does not vitiate a deed, but in the con- struction of instruments, bad grammar, as far as it can be done, is to be avoided. 6 Coke, 39. 646 MaAxXIMs, Maledicta expositio que corrumpitt textum. It is a cursed construction which corrupts the text. Wingate Max. 26. Negatio duplex est affirmatio. A double negative is an affirmative. Omnia presumuntur legitime facto donec probetur in contrarvum. All things are presumed to be done legitimately until the contrary is proved. Coke Litt. 232. Prescriptio est titulus ex usu et tempore substantiam captens ab auctoritate legis. Prescription is a title by authority of law, deriving its force from use and time. Coke Litt. 118. Nemo tenetur seipsum accusare. No one is bound to accuse himself. Broom Max. 3 Lond. ed. 871. Obtemperandum est consuetidint rationabili tanquam legt. A reasonable custom is to be obeyed like law. 4 Coke, 38. Optimus interpres rerum usus. Usage is the best interpreter of things. Coke, 2 Inst. 282. Omnis interpretatio vel declarat, vel extendit, vel re- stringtt. Every interpretation either declares, extends or re- strains. Ponderantur testes non numerantur. Witnesses are weighed, not counted. 1 Stark. Ev. 554. Nobilsores et benigniores presumptiones in dubiis sunt prederende. When doubts arise, the most generous and benign pre- sumptions are to be preferred. Reg. Jur. Civ. Non temere credere, est nervus sapiente. Not to believe rashly is the nerve of wisdom. 5 Coke, 114. MAXIMS. 647 Optimus interpretand: modus est sic legis interpretare ut leges legibus accordant. The best mode of interpreting laws is to make them accord. 8 Coke, 169. Posteriora derogant prioribus. Posterior things derogate from things prior. 1 Bou- vier Inst. n. 90. Presumptio violenta valet in lege. Strong presumption avails in law. Jenk. Cent. Cas. 58. Quoties in stipulationibus ambigua oratio est, commo- dissimum est id accipt quo res de quo agitur, in tuto sit. Whenever in stipulations the expression is ambiguous, it is most proper to give it that interpretation by which the subject-matter may be in safety. Dig. 41, 1, 80, 50, 16, 219. Qui tacet concentire videtur. He who is silent appears to consent. Jenk. Cent. Cas. 32. Sacramentum st factuum fuerit, licet falsum, tamen non committit perjurium. A foolish oath, though false, makes not perjury. Coke, 2 Inst. 167. In traditionibus scriptorum chartarum non quod dic- tum est, sed quod gestum factum est, inspicttur. In the delivery of writings, such as deeds, not what is said but what is done is considered. 9 Coke, 137. Incivile est nisi tota sententia inspecta, de aliqua parte judicare. It is improper to pass an opinion on any part of a sen- tence without examining the whole. Hob. 171. Prima excutienda est verbi viz, ne sermonis vitio ob- structur oratio, sive lex sine argumentis. The force of a word is to be first examined, lest by the fault of diction the sentence be destroyed or the law be without argument. Coke Litt. 68. 648 Maxims. Scire leges, non hoc est verba earum tenere, sed vim et potestam. To know the laws, is not to observe their mere words, but their force and power. Dig. 1, 3, 17. Minime mitanda sunt que certam habuerunt interpre- tationem. Things which have had a certain interpretation are to be altered as little as possible. Si nulla sit conjectura que ducat alio, verba intellt- genda sunt ex proprietate, non grammatica sed populart ex usu. If there be no inference which leads to a different re- sult, words are to be understood according to their proper meaning, not in a grammatical, but in a popular and or- dinary sense. 2 Kent Com. 555. Justitia debet esse libera, quia nihil iniquius venale justitia ; plena, quia justitia non debet claudicare ; et ce- leris, quia dilatio est quedam negatio. Justice ought to be unbought, because nothing is more hateful than venal justice; full, for justice ought not to halt; and quick, for delay is a kind of denial. 2 Inst. 56. Quit aliquid statuerit parte inaudita altera, equum licet dixerit haud equum facerit. He who decides anything, one party being unheard, though he should decide right, does wrong. 4 Bl. Com. 483. Quod non apparet, non est, et non apparit judicialiter ante judicium. What appears not does not exist and nothing appears judicially before judgment. Broom Max. 164. Res judicata facit ex albo, nigrum ; ex nigro, album ; ex curvo, rectum; ex recto, curvum. A thing adjudged makes white, black; black, white; the crooked, straight; the straight, crooked. Hapressum facit cessare tacitum. That which is expressed puts an end to that which is implied. 7 Mass. 106. MAXIMS. 649 In ambigua voce legis ea potius accipienda est signifi- catio, que vitio caret; pre sertim cum etiam voluntas legis ex hoc colligi possit. When obscurities, ambiguities, or faults of expression render the meaning of an enactment doubtful, that in- terpretation shall be preferred which is most consonant to equity, especially where it is in conformity with the general design of the legislature. 2 Inst. 103. in contractibus, benigna; in testamentis benignior ; in restitutionibus benignissima, interpretatio facienda est, In contracts the interpretation or construction should be liberal; in wills more liberal; in restitutions most lib- eral. Coke Litt. 112. In contrahenda venditione, ambiguam pactum contra ventiorem interpretandum est. In negotiating a sale, an ambiguous agreement is to be interpreted against the seller. In penalibus causis benignius interpretandum est. In penal cases the more favorable interpretation is to be made. 2 Hale P. C. 365. In rebus mantfestis errat qui auctoritates legum alle- gat; quia perspicua vera non sunt probanda. He errs who alleges the authorities of law in things manifest; because obvious truths need not be proved. 5 Co. 67. Ambiguitas verborum latens verificatone suppletur ; nam quod ex facto oritur ambiguam verificatione facti tollitur. A latent ambiguity may be supplied by evidence, for an ambiguity which arises out of a fact may be removed by proof of fact. 2 Kent, 557. Aliquis non debet esse judex in propria causa, quia non potest esse judex et pars. A person ought not to be a judge in his own cause, because he cannot act both as judge and party. Broom Max. 117. 650 Maxims. Chirographum apud debitorem repertum presumitur solutum. An evidence of debt found in possession of the debtor is presumed to be paid. 14 M. & W. 3879. Clausula vel dispositio inutilis per presumptionem re- motam vel causam, ex post facto non fulcitur. A useless clause or disposition is not supported by a remote presumption or by a cause arising afterwards. Broom Max. 672. Consuetudo est optimus interpres legum. Custom is the best expounder of the laws. Consuetudo loci observanda est. The custom of the place is to be observed. Cum adsunt testimonia rerum, quid opus est verbis ? When the testimony of facts is present, what need is there of words? Cum in testamento ambigue aut etiam perperam scrip- tum, est benigne interpretarz, et secundum id quod credi- bile est cogitatum credendum est. When an ambiguous or even an erroneous expression occurs in a will, it should be construed liberally and in accordance with the testator’s probable meaning. Broom Max. 568. INDEX. INDEX. ACCOMPLICES— corroboration of, 11%. ADMISSIONS— when and how received, 18, 185, 186, 187. of ancestor binding heirs, 187. evidence, when, 412. rule as to admission of, 312-24. made with a view to compromise, 412, 418, 483. in articulo mortis, 418, 414, 415, 416. presumed to be true, 416, 417. refer to what, 417. general rule as to, 418. made in letters, 418. other cases of, 419, 420. after one has parted with possession, 421. of agent bind the principal when, 421-423, 424, 425, 426. contractual and non-contractual of agent, 427, 428, 451. of attorney, 430, 488, 439. of joint contractor, 430. of principal and of stranger, 480, 481, 447. made as result of duress per minas, 431. made by nominal party, 432. made in pleadings, 481, 443, 444, 445. made by minor, 431. made by partner, 432, 448, 449. made when interest joint and when common, 482, 483, 449. of silent partner, 433. of joint tort feasor's, 434. further as to admissions, 434, 435. of survivor, 484, 485. to show joint interest, 435. fraudulently made, 435, 436. of holders of negotiable paper, 435, 455. why to be received with caution, 456. inventories made by administrator are, 436. in deeds, 486, 437. contractual, 487. 440, 451. in document, 487. under oath not conclusive, 437. not acted on, 488. 652 INDEX. ADMISSIONS—(Continned). silence amounting to, 489, 440, 456, 457. conduct amounting to, 439, 440, 441, 448, by vendor or assignor, 442. by indorser, 442. of wife bind husband, when, 445, 446. of husband bind wife, when, 446, 447. self-disserving, 448. further as to admissions, 450, 451. amounting to estoppel, 451, 455. self-serving, 458, 454. books of corporations used to show, 455, 456. of predecessor in title, 457, 458. of grantor, 458. of co-trespasser, 459. AGENT— declarations of, bind the principal, when, 58, 54, 187, 423, 424, 442. wife is, to bind husband, 79, 80. acting beyond scope of authority, 87. admissions of, 425, 426, 427. ALTERATION— of instruments, 371. explanation of, 371. when formal, 371, 372. illustrations of rule as to, 372, 3738. rule where blanks are left in instrument, 373, 374. of wills, 378. , when and when not material, 373, 374. other cases of, 374, 375. how shown, 375, 376. by stranger, 376, 381. in deeds, 376, 377. in notes, 377. when material and when immaterial, 378, 379, 380, 382. general rule as to, 382. cases where rule does not apply, 383, 384, 385. exceptions to rule, 383, 385. AMBIGUITIES— explained by parol, 199, 200. latent and patent, 200, 201, 202, 208. declaration of testator admissible to explain, 2.3. further as to, 208, 204, 205. in words of art, 205. when written contract is silent and ambiguous, 218, 245.. B BILLS OF EXCHANGE, 238, 240. BILLS OF LADING, 540, 561. INDEX. 653 BOOKS— of private corporation admitted in evidence, when and how, 244, 3938, 394, 395. of science read, when, 395, 396. BURDEN OF PROOF— illustrations, 275, 276, 277, 278. difficulty in determining, 277. sometimes on the negative, 277. generally on the plaintiff, 228. where gambling contracts are involved, 279. in cases of malicious prosecution, 279, 280. in suits against warehouseman, 280, 290. in suits against common carriers, 280, 281, 291, 292. in cases of insanity, 288, 287. in claim cases, 283, 284. in suits for damages against railroads, 284. to prove partnership, 284, 285, 294, 295, 296. other illustrations, 285, 286, 287. in cases of usury, 287. insanity in criminal cases, 284, 287. to explain alteration in note, 288, 306. in suits for work done and material furnished, 288, 289. in case of fraud, 289. in suits against railroads for damages by fire, 289, 290. in suits against warehousemen, 290. in prosecutions for selling without license, 290, 301. to prove marriage, 291. proof necessary to be adduced by plaintiff, 292, 293. to show title to goods shipped, 293. in issues of devisavit vel non, 298, 294. in suits to recover possession of property, 294. for breach of warranty, suits on, 294, 305. in suits to recover money paid for defendant’s use, 296. see further, 297, 298. in cases of gifts or between persons sustaining confidential relations, 298. in pleas of plene administravit, 298. in pleas of infancy, drunkenness, and duress, 298, 299. where law presumes an affirmative, 299. in suits against sureties, 299, 300. in pleas of tender, 299, 300. in opening case, 300. see further, 300, 301. where facts in knowledge of one person peculiarly, 302. in civil action where crime must be proved, 302. where breach of duty charged, 302. in cases of interlineations in writings, 303. general rule stated, 303. 654 INDEX. BURDEN OF PROOF—(Continued). in sales by telegraph, 308, 304 in suits on negotiable instruments, 305, 306, 378. in cases of alteration of instruments, 376. in alterations before execution, 376. CONFESSIONS— . presumptions applied to, 63, 463, 464. how received, 63, 64. not received at common law, 465. refer to what rule in case of confession, 417. judicial and extra judicial, 465. must be free and voluntary, 465, 466. rule where induced by religious persuasion, 467. made before magistrate, 467. made to person not in authority, 467, 468. inducement must refer to what, 468. under promise of secrecy, 468. accomplices affected by, how, 468, 469. facts discovered in consequence of, 469. plenary and non-plenary, 469. must be relevant, 470. made while prisoner is bound, 470. must be corroborated, 470, 471. answer to criminating questions, 471. of wife to adultery, 471. of accomplice, 471. should be specific, 472. burden on defendant to show it was not voluntary, 472. rule where witness hears only a part of, 472. CONSPIRACY— what is, 538. how shown, 51, 52. conviction not allowed on evidence of co-conspirator, 53. declarations of co-conspirators, 44, 45, 51, 52. CONTRACTS— parol evidence to vary. CORPORATIONS-- act how, 401. how bound, 401. subscriptions to stock of, rule as to, 563, 564. D (See EvIDENCE). DECLARATIONS— made under oath, how admitted in subsequent trials, 16. of deceased witness to a will, 16, 17. of deceased persons to prove pedigree, 23. of members of family to prove birth, etc., 24. INDEX. 655 DECLARATIONS—(Continued). must be ante litem motam, 25. of deceased parents to prove illegitimacy, 27. of deceased persons to establish matters of public general interest, 33, 37. of persons in possession of land in disparagement of title, 37. accompanying an act, 40, 41, 43. of conspirators, 44, 45, 51, 52. of bystanders and exclamations made by, 48, 44. to show physical pain and mental anguish, 45. to prove rape, 45. treated as original evidence when, 46. tn articulo mortis, 47. of agent to bind the principal, 58, 54, 181, 182. of employee to bind corporation, 54. extra judicial, 18, 19, 458, 461. of deceased admitting illegitimacy, 26. to show joint interest, 435. must be cotemporaneous with act, when, 40. admitted for some purposes and excluded for others, 43. constituting part of the res geste, 44. see further as to declarations, 459, 460. DEDICATION— by whom made in order to be valid, 88, 89. may be made by parol, 88, 89, 90. acceptance by the public necessary, 90 in cases of highways and streets, 90, 91. in cases of railroads, 91, 92. DEEDS— ancient received in evidence, when, 36. presumptions in favor of, 71. shown to be mortgages, when, 217, 231, 479. consideration shown by parol evidence, when, 208, 219, 220. how exemplified when recorded in another state, 229. attacked for fraud, when and how, 230, 282. further as to exemplification, 282. delivered as an escrow, shown by parol, 244. recitals in, bind whom, 437. essentials of, 598, 599. of conveyance at common law, 600. not to be contradicted by parol, 601. how attested outside the state, 601, 602. rule as to record of, 608, 604, 605. mage to defraud creditors, 605. based on immoral and illegal consideration, rule as to, 606, 607. further as to consideration of, 606, 607. fraudulent alteration of, 607, 608. natural love and affection, consideration, 609. 656 p INDEX. DEEDS —(Continued). estoppels by, 609, 610. contradicted, how, 610, 611. prescription, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620. delivered as an escrow, 619, 620. inconsistent clause in, 620. recitals to bind whom, 621. over thirty years old admissible without proof, 622. covenants in, follow land, 622, 623. further as to covenants, 6238, 624, 625, 626. eviction by title paramount, 625. quit claim, 626. breach of covenant in, 626, 627. proof of execution, 627. by whom delivered, 629. record of, 680. possession constructive notice of unrecorded deed, when, 680, 631. general words in, how construed, 632, 633, 634, 635. further as to deeds, 633, 634. DOCUMENTARY— evidence, 6, 368, 369, 402, 408, 411. when received, 36. ancient documents, 36. presumption in favor of documents, 85. how brought into court, 106, 216, 217. effect of failure to produce, 108, 109. rule as to public records, 109. non-judicial public documents, 217. certified transcripts received, when, 248, 244. rule when recorded document offered, 257. rule as to admission of accounts, 371. rule as to admission of books, 371. DOMICILE— test of, 93, 571. definition of, 93, 94. what two things concur in, 94. once fixed, presumed to continue, 95. distinction between and residence, 95. imprisonment as affecting, 95, 96. of minor, 96. of lunatic not changed by guardian, 96. lex domicilii determines social status, 96. of artificial corporate beings, 96, 97. capacity determined by lex domiciliz, 97. E ENTRIES— business, 19, 20, 38, 39, 41. in family bibles, 25. INDEX. 657 ENTRIES—(Continued.) in books containing names of family, 25. by notaries and clerks in course of business, 41. against interest, 46, 47. by public officers, 398. when to be made, 42, 386, 387. in books of account and how admitted, 41, 42, 386, 387. books of original entry admitted in evidence, how, 42, 387, 388, 389. in private books against interest, 37, 397. must be contemporaneous with transaction, 39, 389, 390. not admissible to prove independent matters, 39, 390, 391. should be corroborated, 39. see further as to entries, 40, 42, 389. see business entries, 19, 20, 38, 39, 41. ESTOPPEL — 307, 448, 451, 452. divided how, 307, 308. by matter in puts and by matter of deed, 308, 309. not favored, 309. must be material, 309. by matter of record, 309, 310, 825, 326. what must be shown to estop, 310. see further as to, 312, 324. test of estoppel zn pais, 314. equitable, 315, 329. other cases of, 315, 316, 440. illustrations of, 314, 320, 324. conclusiveness of judgment, 319, 320. parties must be substantially same, 320. Tule as to judgments in one state against person in another, 321, 322. foreign judgment, 322, 323. further as to, 325, 338. person estopped by representations, 325, 326. minors estopped how and when, 326. must be reciprocal, 327. rule where one of two innocent persons must suffer, 327. rule where one sells without title and afterwards acquires title, 327. rule where owner stands by and acquiesces in sale or mortgage, 328, 329. vendee holding land and refusing to pay, cannot set up defect of title, when, 329. other cases of, 329, 331, 382. presumption conclusive, estoppel conclusive, 333. attorneys, how estopped, 338, 834. common carrier estopped how, 334. by record, how established, 334. tenant estopped from denying landlord’s title, 834, 335. illustrations of the principle, 388. EVIDENCE — definition of, 5. 83 658 INDEX. EVIDENCE—(Continued). competent when, 6. sufficient when, 6. cumulative when, 6. illustrations of cumulative evidence, 6. when direct and when indirect, 6, 7. rules to be observed in determining weight of, 7, 8. distinction between, and proof, 9. circumstantial and presumptive, 9, 10. illustrations, 10, 11. hearsay, 11, 12. parol, 12, 193, 194, 195, 199, 200, 510-544. when primary, 12, 60, 197, 198. when secondary, 13, 50, 197, 198, 391, 392. reasons for excluding secondary elements of weakness in, 13, 14, 16, 20, 21. illustrations, 14, 15, 16. distinction between hearsay and original, 17. of pedigree and reputation, 17. exceptions to rule excluding hearsay, 27, 28, 32, 33, 38. matters of private interest not shown by hearsay, 33. matters of public interest shown by hearsay, 32. hearsay admitted in cases of custom and prescription, when, 32. delivered in former trial reproduced when and how, 34, 35, 36. reproduction of, 47, 48, 221. delivered through an interpreter, 48. market value shown by hearsay, 49. bodily pain shown by declarations, 49. why necessary to resort to presumptive or circumstantial, 58. secondary excluded when primary attainable, 65. where evidence is in equipoise, rule, 68. hearsay in cases of insanity, 70. newly discovered, 154. degrees in secondary, 248. presumptions in cases of easements, 98. affirmative and negative, 118, 119. when relevant, 162, 163, 164, 165, 166, 167. rule where system is shown, 166. illustrations of the rule as to relevancy of, 166, 167, 168, 169, 170, 171, 172, 1738. general rule stated, 171, 172. rule where one is charged with fraud, 172. other cases of system, 172, 178, 174, 175, 177, 179. rule where part of conversation is given, 178, 181. understanding of conversation not allowed, 173. other cases of relevancy and irrelevancy, 178, 174. relevancy of, in cases of usury, 178, 174. proof of character revelant when, 176, 177. INDEX. 659 EVIDENCE—(Continued). proof of character in libel and slander, 177, 527. in cases of conspiracy, 177. relevancy where value is to be shown, 177, 178. in cases of malicious prosecution, 178, 1'79. in cases of sale to defraud, 178, 180. in suits for personal injuries, 180, 181. in cases of breach of warranty, 181. in cases of impeachment, 181. sayings of agent relevant when, 181, 182, 187. revelant to show specific value by proof of general value, 182, 183. relevancy of collateral facts, 188, 184, 188, 189. in cases of fraud, other frauds shown, 188, 184. particular acts not relevant to show bad character, when, 184, 185. rule as to relevancy of admissions, 185. as to admissions of stranger, 185, 186. admissions with a view to compromise, 186. relevant evidence in cases of forgery, 187. relevant questions in testing credit of witness, 187, 188. certain facts excluded for irrelevancy, 189, 191. illustrations of rule, 191, 192. written instrument not substituted by oral, 192. illustrations of rule, 192, 198. reasons for the rule, 198, 194, 195. rule where law does not require instrument to be in writing, 193, 194. proof of mere incidents, 195. parol not received when, 195, 196. proof of probate necessary to admit will, when, 196, 197. degrees in primary, 198. parol to explain latent and patent ambiguities received when, 199, 200 201, 202, 208, 204, 520, 521, 522, 523, 530, 531, 536. parol not admissible to alter legal effect of instrument when, 201, 519. parol not admissible to prove intention, 203. Salsa demonstratio non nocet, meaning of, 204. parol admissible to show mistake, when, 205, 520, 521. illustrations of rule admitting and excluding parol evidence, 205, 206. parol admissible to explain indorsement, when, 207, 526, 547, 548, 550, 555, 556. parol admissible to show consideration and to prove usage, 207, 528- 530. other cases stated, 207, 208, 212, 218, 479, 480, 523, 552, 553. parol to show real consideration of deed, 208, 519. parol to show consideration in contracts generally and general rule stated, 209, 210, 552, 554, 555. parol admitted to reform contract on ground of mistake, when, 210, 521, 522, 554, 556. parol admissible to show fraud, 210, 556. other cases of fraud and mistake shown by parol evidence, 520, 521. 556. 660 INDEX. EVIDENCE—(Continued). parol to explain scientific terms, etc., 210. parol admitted to contradict or explain receipt, when, 210, 540, 541. parol not admitted to vary unconditional indorsement, when, 213. nor to vary unconditional deed, 213. parol admitted to explain ambiguities, 213. parol not admitted to vary or enlarge written contract, when, 214, 553. parol to show circumstances surrounding parties, 214. tule where entire contract is not reduced to writing, 214. parol admissible to show additional consideration than the one men. tioned in contract, 214, 215. parol, character of, when it is sought to vary written contract, 215. parol admissible to show what contract really is, 215, 216. parol admissible to show circumstances attending execution of con- tract, 217, 218. parol evidence admissible in construction of will, when, 219, 518, 519. parol to show contract void, 220. parol admitted to vary when cuntract offered by stranger, 220. parol admitted where contract in writing lost, 221, 225, 226. rule where notice has been given to produce, 222. rule where party calling for paper receives and inspects it, 222, 223. secondary evidence of contents of paper received, 223. no notice to produce where sui: on the paper, 223. letters sh -wn to have been sent, without notice to produce, 228. existence of paper shown without producing, 224. secondary of lost records, 224. parol to show advancement, 226, 527, 528. parol to show sayings of testator as to character of devise, 227, 561, 562, 563. parol to show written contract not operative. 227. parol to explain auctioneer’s memorandum, 227. other cases of parol, 227, 228, 520, 528. certificates of notaries public, 228, 229. parol to show cause of action in foreign judgment, when, 228. parol to show condition in a note, 230, 231. parol to show verbal warranty, 231. mistake in contract shown by, 231, 520, 521. deed shown to be mortgage by, 231, 519. resulting trust, shown by, 232, 559. demand and notice dispensed with, shown by, 288. contracts between indorsers, shown by, 288, 284, 521, 522. subsequent verbal contracts to vary written, 235. where contract partly written and partly printed, rule as to, 242. circumstances attending execution of contract always shown by parol, 242. admitted to show conditions in contract have not been performed, 242. parol, judicial records corrected by, 242. other cases, where admitted, 242, 248, 244. INDEX. 661 EVIDENCE—(Continued). merger of prior and contemporaneous conditions, rule as to, 244, 558. parol to show deed delivered as escrow, 244. to show relation of parties signing note, 245. marriage, shown by, 245, 246, 247, 248. judicial records of foreign states admitted in, how, 248, 249. rule as to foreign records, 248, 249. records of one county used in another, how, 250. certificate of clerk, seal, etc., 250, 251. foreign records, how exemplified, 251, 252. parol to explain innuendoes, 252. parol admitted to impeach records, 252, 253. not admitted to show mistake in drafting will, 253. admissible to reform contract, 258, 254, 257, 557. general rule stated, 254. other cases, where admissible, 254, 255, 550-554. facts judicially recognized, 264, 270, 271. burden of proof, 275, 280, 281, 288, 284, 302. parol to prove written contract of sale, 304, 305. when contract was made by agent, 305. tules as to admissibility of, 339, 340, 369, 370. documentary, 402, 403 expert testimony, 4038, 404. comparison of handwriting, by, 404, 405. further as to parol, 510-544. contemporaneous writings admissible to explain each other, 510. distinction between casual documents and more solemn instruments, 510. when additional ingredients engrafted by parol, 511, 512. words construed, how, 512. written and printed words, rule as to, 512. parol to show duress, 512, 513. other cases stated, 513, 514, 559-562. rule where parties differ as to intention, 517. what deceased person said at time of execution of instrument admitted, when, 517. further as to parol, 518, 519. parol to show instrument never delivered, 518. 519. parol to show fraud, 520. admissible to identify property and person, 533, 534. parol to show agency and undisclosed principal, when, 523, 520, 534. parol to show real parties, 525, 526, 527. rule as to joint obligors and sureties, 526. parol admitted to rebut an equity, 528. usage, shown by, 488, 528-536. modification of instruments under seal, shown by, 532, 533. ademption of legacy, shown by, 532. incidents annexed to written contracts by, 534, 535. not received to impeach record, when, 538, 539. 662 INDEX. EVIDENCE—(Continued). to sustain plea of res adjudicata, 539. bills of lading explained by, 541, 542. further as to parol, 544-554. to prove what testator said at time of execution of will, 561, 562. further illustrations of the rule as to parol, 565, 569. See DocUMENTARY. F FACTS— jury must pass on, 56. what facts may and what facts may not be shown, 58, 59. FRAUD— statute of, 473. lands cannot pass under statute of, except in writing, 474, 475, 503, 504. rule as to specific performance where contract in parol, 475, 476, 478, 479, 480, 502, 503. rule where party can be compensated, 476. rule where advantage is taken of statute to perpetrate a fraud, 476, 477. fraudulent contracts for sale of land not enforced, 477. part performance taking case out of statute of, 477, 478. rule as to engrafting parol stipulations, 478. parol contract not substituted for writing, 480. meaning of words, ‘‘ interest in land,” 481, 482. rule when agreement not to be performed within one year, 482, 483. 484, 485. illustrations of the rule, 483, 484. rule where there has been part performance, 484. rule where contract to be performed on a contingency, 483. rule where contract is for sale of goods for ten pounds or upwards, 483. where contract is executory, 483. illustrations of rule, 485, 486, 487, 488. memoranda made by auctioneer, 486. tule where goods accepted and receipted for, 491. what constitutes delivery, 492. promise to answer for debt of another, rule in such case, 492, 493, 494, 495. statute of, original and collateral undertaking, rule-in such cases, 494, 495, 504, 505. promise by administrator to answer debt of intestate, 495. exceptions to rule, 495, 496, 497. rule where contract has been fully performed, 498. illustrations of rule, 499, 500. what will satisfy statute, 500, 501. parol condition annexed to sale of land, 501. easements created by parol, 502. tule where there is verbal agreement to convey land and pe-sonal prop- erty, 506. tule where contract may be performed within one year, 506. INDEX. 663 FRAUD—(Continued). contract in writing, subsequent modification need not be in writing, 506. other contracts within the statute, 507, 508. promises, to whom made, 508. where part of consideration is paid, 508. pleading statute is personal, 509. fraud set up by parol, 545. INDORSERS— . rule as to liability, 266. accommodation indorsers, 266. notice of dishonor shown how, 266, 267. See EvipDENCE. INSANITY— how shown and burden of proof on whom, 69, 70. rule as to competency of witnesses to prove, 115, 116. See EvIDENCE. JUDGE— J duty of, 103, 104, includes what persons, 5. duty of, in charging jury, 103. rule where judge is related to party, 103, 104. cannot express opinion as to what has or has not been proven, 103, 104. may question witness, 130. ex mero motu, may raise question, 272, 273. JUDGMENTS— presumptions in favor of, 88, 84. foreign suits on, 228. in rem and in personam, 272, 278. operate as estoppels (See EsropPEL). in one state against person in another, rule as to, 321, 322. as to foreign judgments, 322. collaterally attacked by third person, 382. of federal courts, how attacked, 332. in ejectment on whom binding, 382. in rem, 382, 338. estopped from denying validity of. when, 333. for part of liquidated demand, rule, 336, 337. merger of, 337. of sister states, how enforced, 337. set aside for fraud, 540. JUDICIAL NOTICE— of certain facts, 258, 259, 260, 261, 262, 263, 264-269. judex fori bound to accept foreign law, 267. custom recognized by, and great historical events, 269. other facts judicially recognized, 269, 270, 271-3. 664 InpEX. JUDICIAL NOTICE—(Continued). not necessary to prove facts judicially recognized, 274. as to foreign judgments, 322. judicial proceedings of other states shown how, 460, 461, 462. JUDICIAL RECORDS— presumptions, 83, 539. errors in dates, 242. of foreign states used in evidence how, 248, 249. must be court of record, 249. attested how and by whom, 249 where court has no seal, 249. in one county used in another, 250. certificate by whom made and signed, and must state what, 250. transcript of record must contain what, 250. impeachment of, 25, 252, 253. JURISDICTION— presumptions, 83, 580. JUROR AND JURY— what facts may be shown to jury, 56. jury passes on facts, judge on law, 5H, 57. juries formerly taken from vicinage, 61. objections to rule stated, 61, 62. object of jury trials, 98. juror set aside for cause and how challenged, rule, 98. different kinds of challenge, 99. propter affectum and defectum, 99. challenge to array, 99, 100. where juror has expressed opinion, 100. where objection to juror not known, 100. competency, question for court, 100-102. votr dire, 100-102. what will disqualify, 102, 108. right of trial by jury, 102, 103. submission of evidence to, 108, 104. juror may be sworn in a case, 147, 148. may question witness, 130. not heard to impeach verdict, 340-342. misconduct of new trial granted, 340, 841. objections to juror propter defectum, 347, 348. jury determines how obscure instrument to be read, 517. L LEGISLATIVE PROCEEDINGS— i presumptions in favor of, 84, 85. LIBEL— ' distinguished from slander, 351-367. what constitutes, 249, 351. INDEX. 665 LIBEL—(Continued). words actionable, per se. 351. distinction between written and spoken, 351. intention when considered, 351, 352. defamatory words, 352. rule, when there is doubt as to whether words are defamtory, 852. fair criticism on matters of public interest not libelous, 352, 353. office of innuendo, 353. gist of the action, 3538, 354. privileged communication, 354, 356, 360-364. declaration must set forth what, 354. what plaintiff may show, 355. what defendant may show, 355. repetition of words, 356, 357. rule when official misconduct is charged in newspaper, 357. test of good faith, 357, 358. what may be shown in mitigation of damages, 358, 359, 365, 366. libel in newspaper, 359, 360, 366, 367. slander of title, 361, 362. publication of libel. 362. general and special damages, 364, 365. publication by agent, 366. M MAXIMS, 637-650. MEMORANDUM— when received in evidence, 20. made at time fact occurred admissible, 41. private memoranda, 43. MOTIVE— shown in criminal cases when, 62. MUNICIPAL CORPORATION— presumption in favor of, 85. ecords of, admissible when, 398, 399. ordinances admissible when, 399. N NEGOTIABLE INSTRUMENTS— presumptions as to, 92. when note is endorsed before maturity, 92. one taken with notice, taken subject to infirmities, 232, 233, 545, 546. shown by parol that demand and notice dispensed with, 233. chose in action not assignable at common law, 234. bills of exchange and negotiable notes assignable, 234, 546, 547, 548 549, 550. test of negotiability, 234. requisites of negotiable piper, 235, 236. of promissory notes, 236. 84 666 INDEX. NEGOTIABLE INSTRUMENTS—(Continued). of due bills without negotiable words, 236. blank indorsements, 236, 237. special indorsements, 237. contract of indorser and of indorsement generally, 237, 2388. bona fide holder of negotiable paper, 238, 545, 546, 547. meaning of valuable consideration, 238. duty of one holding unaccepted bill, 238, 239. of presentation and acceptance, 239, 240. acceptance supra protest, 239. bills presented when, 239. by whom accepted, 239. primary liability of acceptor, 240. days of grace, 240. when and how bill protested, 240, 241, 265. notice of dishonor, 241. of inland bills, 241. entries of notaries admissible to prove acts in demanding payment, 265, 266. seal of notary, when necessary, 267. indorsement of negotiable notes, 546, 547, 550, 551, 552. NEW TRIAL— newly discovered evidence as grounds for, 154 on what grounds granted and refused, 340, 341, 342, 356. misconduct of jury, ground for, 340. conflict of evidence, 341. when court expresses opinion, 341. refusal to charge, 341, 342. in cases of discretion, 342. grounds for new trial, 343, 344. improper conduct or language of counsel, ground for, 344. when verdict is contrary to evidence, 344. general rule as to grant of, 344. other grounds for, 845, 346, 347. newly discovered evidence, 346. rule for the grant of in crininal cases, 346. rule when court refuses continuance, 348. new trials generally, 349, 350. NOTARIES PUBLIC— admissibility of certificate in evidence, 226, 227. P PARTNERSHIP— notice of dissolution, how shown, 392, 393. PEDIGREE— how proven, 17-22, 28, 24. established by hearsay evidence, it is original evidence, 17-21, 22. declarations of deceased persons to establish, 23. INDEX. 667 PEDIGREE—(Continued). see further as to pedigree, 27. relationship shown by ancient deeds, wills or other documents, 27. PLAIN TIFF— burden of proof on, 67, 68. should make out prima facte case in opening, 67. PRESUMPTIONS— of law and fact, 56, 72, '73. of fact, ground of, 62. that one intends probable consequences of his acts, 62 in criminal cases, 63. from confusion, 64. in civil cases, 64. illustrations, 64, 65. division of, 66. 4 conclusive or irrebuttable, inconclusive or rebuttable, 66, 67. when question is one of good faith, 68, 69. in favor of good faith, sanity, etc., 69. in cases of injury to children, 70. other cases of, 70, 71. in favor of judicial proceedings. 71. in cases of legitimacy, 71, 72. on presumption not allowed, 73. in cases where goods were recently stolen, 78, '/4. omnia pracsumuntur rite esse acta, T4, as to sanity of testator, 74, 75. other presumptions, 75, 76, 77. as to negotiable paper, 77, 78. grounds of all presumptions of fact, 62. when condition is shown to exist, 65. when contract good by the lex loct solutionis, but bad by the lex loct contractus, 69. in favor of ancient wills and deeds, 71. further distinguished, 72. of fact not based on other presumptions of fact, 73. rule when one has held himself out as occupying certain relation, 75. when common carrier has lost goods, 76. other cases of presumptions, 76, 77, 78 of good faith is one of law, but is rebuttable, 79. against trustee, dealing with cestut que trust, 79. so, in other confidential relations, 79. against one tampering with witness, or suppressing evidence, 79. that wife is agent of husband in purchase of necessaries, 7!), 80. one selling lands, no transmutation of possession, presumption of fraud, 81. that one ratifies act done for his benefit, 81. meaning of maxim omnia praesumuntur contra spoliatorem, 81, 82. against one failing to produce paper, 82. 668 INDEX. PRESUMPTIONS—(Continued). as to jurisdiction of superior courts, 82, 88. as to verdicts, 83, 84. in favor of the legality of legislative proceedings, 84, 85. in favor of proceedings of muuicipal corporations, 85. in favor of documents when, 85 as to regularity of appvintment of officers de jure, 85. when one holds himself out as officer de facto, 85, 86. when one accepts services of another, 86. that letters reach their destination when properly stamped and mailed, 86, 87. when agent acts beyond scope of authority, 87. when bailee deposits goods, 87, 88. as to ownership of highway, 88. in cases of dedication, 90. in cases of negotiable promissory notes, 92. when note endorsed before maturity, 92. in cases of judicial records, 92. when one holds himself out as exercising a trade or profession, 98. as to officers doing their duty, 93. from lapse of time, 93. as to ownership of soil, 97. in cases of long ownership of lands as to missing links, 97. when paper lost and due search made, 98. in case of easement, 98. as to notaries’ proceedings, 220. PRIVILEGED COMMUNICATIONS, 119, 122. to clergymen not privileged, 124. to physicians not privileged, 124. messages sent by wire, not, 124. secrets of state, not, 125. other communications, 125. confession improperly obtained not given in evidence, 125. communications, 147-159. between parties and witnessess, privileged, 147, 148. PROOF— in case of perjury, 152, 153. subornation of perjury, 153. distinction between and evidence, 9. R REGISTRY— when competent evidence of birth, marriage and death, 27, 396, 397. registries, 397 400. REPUTATION— proof of, how made, 28. in cases of slander and libel, 28. ’ general reputation of witness shown to impeach, how, 28, 29. INDEx. 669 REPUTATION—(Continued). how sustained, 29. of impeaching witnesses attacked, how, 29. evidence of reputation confined to what time, 29, 30. modes of impeachment, 30, 31. to prove marriage, 31. of wife shown in suits, crim. con., 81. proof of good character allowed tv raise presumption of innocence, when, 65. other instances of presumptions, 65, 66. general reputation shown when nature of charge involves character, 28. rule, when it is sought to show bad reputation for pa'ticular things, 29. not shown in a community in which witness does not live, 30. not shown by one sent into a community to ascertain, 30. conviction of infamous offense shown to impeach, 80. shown to defeat or establish a public right, 33. RES GESTAE, 17, 48, 44, 45, 51, 54, 182. RES INTER ALIOS ACTA, 18, 19. Ss SLANDER— proof of character relevant, 177. STATEMENTS— extra judicial, rule as to admission of, 17, 18. rule, when statements are part of res geste, 18, 19. SUBPGiNA— ad testificandum, 106. duces tecum, 106, 160. to bring paper into court, 106. service of subpcena, by whom, 107. U USAGE— shown by parol evidence, 207. allowed to aid in construction of deeds, 210, 211. essentials of a usage, 211. not allowed to contradict a settled rule of law, 211. must appear that parties contracted with reference to usage, 211, 212. contrary to public policy, 212. judicially recognized, 212. of trade distinguished from common-law custom, 218. of particular place, 218, 219. Vv VERDICTS— presumption as to, 83, 84. contrary to weight of evidence, ground for new trial, 344. 670 INDEX. VERDICTS—(Continued). excessive, ground for, 344, 345. not in conformity with evidence, new trial granted, 349, 350. Ww WARRANTY— written, verbal warranty not shown by parol, 281. mistake in drafting will, not shown by parol, 253. covenants of warranty include what, 311. WILLS, 570-597. distinction between will and deed, 570. when they convey realty, 570. when they convey personalty, 570. contingent will, 572. joint will, 572. intention should control, 572. one takes as purchaser under, 573. rule when will is prepared by legatee, 574. insane person may make, 574. how attested, 575, 576, 577, 578, 579. 588. revoked, how, 580, 581, 582, 583, 584. undue influence, 585, 586, 587. charity, what is, 588, 589. statute of charitable uses, 590. doctrine of cy pres., 590. as to probate of will, 591, 592. lost will, how established, 592. executors de son tort, 593. ademption of legacies, 594. further as to wills, 594, 595, 596, 597. donatio causa mortis, 595. demonstrative legacy, 595. legacies. 595, 596. lapsed legacies, 595, 596. cumulative legacy, 596. election, 596, 597. proof of probate necessary to admit in evidence, 196, 197. foreign will proven, how, 197. copy of lost will established, 224, 225. witness not contradicted by writing without producing writing, 197. reproduction of testimony of, 220, 221, 226. rule when witness to lost paper dead or beyond jurisdiction, 226. inquiry made as to lost paper, 226. WITNESSES— how impeached and sustained, 28, 29. 30, 31. evidence of deceased witness on former trial admitted when, 34, 35. when notes of witness’ testimony admitted, 35, 36. what preliminary proof necessary, 35. INDEX. 671 WITNESSES—(Continued). veracity attacked how, 3, 51, 132. what questions may be asked to impeach, 51. what questions may aud may not be asked a witness, 59, 60. to will or deed, his declarations not admissible to impair force of attes- tation, 16, 17. may refresh memory from inspection of paper, 20, 161. memoranda used to refresh memory, and the rule in such cases, 20. impeaching witness examined as to source of information, 29. rule as to reproduction when witness becomes insane or when other party bas kept him from court, 34. rule applies to criminal cases, 34. when court has no jurisdiction, evidence may not be reproduced, 35. other cases of reproduction of evidence, 35. may not swear to part only of testimony of deceased witness, 48. opposite party must have had opportunity to cross examine, 48, 161. not attacked by showing character of associates, 51. court not bound to disregard evidence of impeached witness, 51. rule where facts detailed by witness are consistent, 60. where facts are inconsistent, 60. rule when one tampers with witness or suppresses evidence, 79, 80. how brought into court, 106. documents, how brought into court, 106. papers, how described in subpoena duces tecum, 7, 106, 221, 222. failing to attend, rule in such cases, 107. by whom service of made, 107. attendance, fees of, 107, 108. in custody, brought in how. 108. may purge himself, 108, 109. sworn without subpoena, when, 109, 110. sworn, how, 110. : oath of, 110, 112. may affirm, 110. in attendance, not to be arrested, when, 110. competency of witness, question for the court, 110. certain witnesses excluded, 110, 111. rule as to infidels, 111, 112. rule as to infants as witnesses, 111. burden on party assailing competency of, 112. deaf and dumb witnesses, how examined, 112-115. number of, 112, 113. judge may control, when, 113. crimen falst and other disqualifications, 118, 114. accomplices as witnesses, 118, 114. incompetent when total lack of capacity, 115. when witness intoxicated, 116. credibility of, 116. falsus in uno, falsus in omnibus, meaning of rule, 116. 672 INDEX, WITNESSES—(Continued). where witnesses agree in detail, 116, 117. substantial truth under circumstantial variety, 117. accomplices, corroboration of, 117. husband and wife nt competent to prove adultery, 117. rule when attorney notified to produce paper, 117, 118. swearing affirmatively and negatively, 118, 119. privileged communications, not disclosed, 119, 120. communications between client and attorney, 120, 121. private transactions independent of employment, 121. impeachment of, 122, 1238. husband and wife, either may impeach the other, 123. attorney making himself attesting witness, loses privileges, 128. parents not competent to prove non-access, 123. production of deeds left with attorney for opinion, etc., 128, 124, 221. communications to clergyman not privileged, 124. communications to physicians, 124. message sent by wire not privileged. 124. secrets of state. privileged, 125. other communications privileged, 125. not allowed to disclose confession, when, 125. interest excludes, when, 125, 126. rule at common law, 126. disqualified by infamy, when, 126. rule in such cases, 126. leading questions to witness, rule in such cases, 126, 127. wisdom of this rule, 127, 128. leading questi-ns allowed, when 128. cross-examination of witnesses, 128, 129. one may not impeach his own witnesses, 129. impeached by party calling, when, 128, 129. judge may ask questions, separation of witnesses, object of rule, 129, 1380. juror allowed to ask witness questions, 180. no limit to number of witnesses called, 130. not bound to answer questions tending to criminate, etc., 180, 181. presumption when witness refuses to answer, 1381. may waive privilege, 131. may correct statement, 131. testimony of witness on former trial, reproduced, 181, 132. examined as to his feclings, 182. rule, when counsel differ as to what witness has sworn, 182. called by one party, recalled by the other, rule in such case, 182. source of impeaching witness, knowledge sifted on cross-examination, 138, 134. how sustained, 134, 185. bias shown to discredit, 135. coutradictory statements shown, 185. INDEX. 673 WIT NESSES—(Continued). called to lay foundation to impeach, 135. produced to contradict, 135, 136. where witness denies that he has committed a crime, rule in such cases, 136. jury may believe impenched witness, 186. jury may determine whether witness is impeached, 136. infamous crime shown, 136. tampering with witness, 136, 137. rule as to leading questions to, 187. may give belief or opinion, when, 137. one allowed to discredit his own witness, when, 187. leading questions to, on cross-examination, 137, 188. in cross-examination, witness examined on questions not drawn out in examinations-in-chief, 188. irrelevant questions, 138. presumption when party declined to testify, 188. about matters with which he is conversant, 138. one party may call the other as witness, 138. in contempt for refusing to answer, 188. not to state conclusions of law or fact, 188. not allowed to construe contract, 188. not allowed to give opinions, 189, allowed to refresh memory by inspection of paper, 139. rule in such cases, 139, 140. notes or book entries used to refresh, 140-161. rule in such cases stated, 140, 141. who are witnesses, 141. not contradicted as to collateral matter, 141. rule, where credit of is equal, 141. confidential communications between husband and wife, 141, 142. expert witnesses, 142, 148, 144, 404, 405. degree of skill of experts, 144. non-expert testimony, 144, 145. expert, contradicted or sustained by scientific treatises, 145. further observations on expert witnesses, 145, 146, 147, 148, 149. juror sworn as witness, 148. defendant to be confronted by, 149, 150. required to give bond, when, 150-154. compulsory process for, 150. forced to appear before grand jury, 151. perjury and false swearing, 151, 152. number of witnesses, 152. proof, in cases of perjury, 152, 153. subornation of perjury, 153. infants, not guilty of, 158, 154. testimony of, to be weighed, how, 154, 155. counsel sworn as, 155. 85 674 INDEX. WITNESSES—(Continued). market value shown, how, 155. in cases of confession, 155, 156. must state fact and not inference, 156. conviction, in order to impeach, how shown, 156, 15%. put on voir dire, 157, 158. rendered competent by pardon, 158. expert, compelled to give evidence, 159. preliminary questions to, 159. method of examination of, 160. rule where immaterial questions are asked, 160. attesting witnesses, when called, 406-410. KP 8935 865 Author Vol Smith, Peter Francisco Title Copy The Law and Principles of Evidence Date Borrower's Name Ble aie