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A TREATISE
ON
THE SYSTEM OF EYIDEKCE IIS" TEIALS
AT COMMON LAW
Volume II.
A
TREATISE
ON THE SYSTEM OF
EVIDENCE
IN
TRIALS AT COMMON LAW
INCLUDING
THE STATUTES AND JUDICIAL DECISIONS
OF ALL JURISDICTIONS OF THE
UNITED STATES
BY
JOHN HENKY WIGMORE
PROFESSOR OF THE LAW OF EVIDENCE IN THE LAW SCHOOL
OF NORTHWESTERN UNIVERSITY
IN FOUR VOLUMES
Volume II.
BOSTON
LITTLE, BEOWN, AND COMPANY
1904
f-Jiimi
Copyright, 190^
By John H. Wigmore
All rights reserved
THE UNIVERSITT PRESS, CAMBRIDGE, n. S. A.
CONTENTS
VOLUME II.
List of Latest Statutes and Reports Consulted . .
CHAPTER XXIX.
SUB-TITLE II. — TESTIMONIAL IMPEACHMENT.
[NTRODUbTORY.
A. Genekal Theory of Impeachment.
§ 875. Analysis of the Process of Impeachment.
§ 876. Distinction between proving Incorrectness
of Testimony from Defective Qualitications
and proving the Detective Qiialiiications
by other Circumstances.
§ 877. Distinction between Relevancy and Aux-
iliary Policy.
§ 878. Distinction between Cross-examination and
Extrinsic Testimony.
§ 879. Distinction between Circumstances having
Definite Relevancy and Circumstances
having Indetinite Relevancy.
§ 880. Distinction between Impeaching Evidence
and Rehabilitating or Supporting Evidence.
§ 881. Order of Topics.
B. Persons Impeachable.
1. Impeachment of Hearsay Testimony.
§ 884. General Principle.
§ 885. Dying Declarations.
§ 886. Attesting Will- Witness.
§ 887. Statements of Facts against Interest, and
other Hearsay Statements.
§ 888. Absent Witness' Testimony, admitted to
avoid Continuance.
2. Impeachment of Defendant as Witness.
§ 889. Distinction between Becoming a Witness
and Waiving a Witness' Privilege.
§ 890. Defendant impeachable as an Ordinary
Witness.
§ 891. Same: Application of the Rule.
§ 892. Defendant not Testifying but making a
"Statement."
3. Impeachment of an ImpeachingWitness.
§ 894. Limitation in the Trial Court's Discretion. |
4. Impeachment of One's Own Witness.
§ 896. Historj' of the Rule.
§ 897. First Reason : The Party is Bound by his
Witness' Statements.
§ 898. Second Reason : The Party Guarantees his
Witness' General Credibility'.
§ 899. Third Reason: The Party ought not to
have the Means to Coerce his Witness.
§ 900. Bad Moral Character.
§ 901. Bias, Interest, or Corruption,
§ 902. Prior Self-Contradictions ; (1) Theory.
§ 903. Same: (2) Practical Reasons Pro and Con.
§ 904. Same : (3) Various Forms of Rule adopted
by different Courts-
§ 905. Same: (4) State of the Law in Various
Jurisdictions.
§ 906. Same: (5) Rules for Prior Warning to the
Witness, etc. ; Rule for Party's Admission.
§ 907. Contradiction by other Witnesses, not for-
bidden.
§ 908. Same: Contradiction as involving Im-
peachment.
§ 909. Who is One's Own Witness; General
Principle.
§ 910. Same: (1) A calls a Witness; mav A
inipeachV Subpoena, Oath, and Inter-
rogation.
§ 911. Same : (2) A calls a Witness, then B calls
him; may B impeach? (a) Viva voce
Testimony.
§ 912. Same : (i) Depositions.
§ 913. Same: (3) A calls a Witness, then B calls
him; may A impeach']" (o) Viva voce
Testimony ; (6) Depositions.
§ 914. Same : (4) Making a Witness One's Own
by Cross-examination; (n) Impeachment.
§ 915. Same : (J) Leading Questions.
§ 916. Same: (5) Calling the Other Party as a
Witness: Co-defendants.
§ 917. Same: (6) Necessary Witness; (a) Attest-
ing Will-Witness.
§ 918. Same : (6) Prosecution's Witness in a
Criminal Case ; Witness called by the
Judge.
CONTENTS.
Topic I.
chapteb xxx.
-Character, Mental Defects, Bias, etc., used as General Qualities
TO Discredit.
A. Moral Character.
§ 920. Actual Disposition, as distinguished from
Reputation and other modes of evidencing
Disposition.
§ 921. Relevancy and Auxiliary Policj'j their
different bearings.
§ 922. Kind of Character ; Veracity as the funda-
mental Quality.
§ 923. Same: The Rule in the Various Jurisdic-
tions.
§ 924. Same: Character as to Specific Traits
(Chastity, etc.) other than Veracity.
§ 925. Same : Accused's Character as Witness and
as Party, distinguished.
§ 926. Same : Use of Prior Convictions and other
Instances of Misconduct.
§ 927. Time of Character ; General Principle.
I 928. Same: the Competing Rules as to Prior
Character in the various Jurisdictions.
§ 929. Same: Character post litem motam ;
EtEects of Hearsay Rule.
§ 930. Place of Character.
B. Insanity, Intoxication, and other
Organic Incapacity.
§ 931. In general.
§ 932. Insanity.
§ 933. Intoxication.
§ 934. Disease, Age, Morphine Habit, and sundry
Derangements.
§ 935. Religious Belief.
§ 936. Race.
C. Experiential Incapacity.
§ 938. General Principle.
D. Emotional Incapacity (Bias, Interest,
and Corruption).
§ 940. General Principle.
CHAPTBK XXXI.
Topic II. — Evidencing Bias, Interest, and Corruption (bt Conduct
AND Circumstances).
Introductory.
§ 943. Greneral Principle; No Prohibition against
Extrinsic Testimony.
5 944. Cross-examination ; Broadness of Scope.
^ 945. Kinds of Evidence.
5 946. Same: Demeanor of the Witness, as evi-
dence,
A. Bias.
§ 948. General Principle; Particular Circum-
stances always admissible.
§ 949. Relationship and other External Facts as
Evidence.
§ 950. Expressions and Conduct as Evidence.
§ 951. Details of a Quarrel on Cross-examination.
§ 952. Explaining away the Expressions or Cir-
cumstances; Details on Re-examination.
§ 953. Preliminary Inquiry to Witness.
956.
B. Corruption.
General Principle.
§ 957.
§ 958.
§ 959.
§ 960.
§ 961.
5 962.
964.
967.
969.
Wilhngness to Swear Falsely.
Offer to Testify Corruptly.
Confession that Testimony was False.
Attempt to Suborn another Witness.
Receipt of Sloney for Testimony; Payment
of Witness' Expenses.
Mere Receipt of Offer of a Bribe.
Habitual Falsities, and Sundry Corrupt
Conduct.
Preliminary Inquirj* to the AVitness.
C. Interest.
General Principle; Parlies and Witnesses
in a Civil Case.
Accomplices and Co-indictees in a Crimi-
nal Case.
Accused in a Criminal Case.
Bonds, Rewards, Detective-Employment,
Insurance, etc., as affecting Interest.
CHAPTER XXXII.
Topic III. — Evidencing Moral Character, Skill, Memory, Knowledge,
ETC. (BY Particular Instances of Conduct).
A. Moral Character, as evidenced by Par-
ticular Acts.
5 977. General Principle.
5 978. Same: Relevancy and Auxiliary Policy,
distinguished.
§ 979. Particular Acts of Misconduct, not provable
by Extrinsic Testimony from Other Wit-
nesses.
§ 980, Record of Judgment of Conviction for
Crime.
5 981. Cross-examination not forbidden; General
Principle.
§ 9S2. Same: Relevancy of Acts a,sked for on
Cross-examination; Kinds of Misconduct;
Arrest and Indictment,
§ 983, Same : Relevant Questions excluded on
grounds of Policy; Three Types of Rule;
Cross-examination of an Accused,
§ 984, Privilege against Answers involving Dis-
grace or Crime.
§ 985. Summary of the Preceding Topics.
§ 986. Same: History and State of the Law in
England and Canada,
CONTENTS.
§ 987. Same: State of the Law in the various
Jurisdictions of the United States.
§ 988. Rumors of Particular Misconduct, on
Cross-examination of a Witness to Good
Character, distinguished.
B. Defects of Skill, Memory, Knowledge,
etc., as evidenced by Particular Facta.
§ 990. General Principles; Proof by Extrinsic
Testimony.
§ 991. Skilled Witness; Evidencing Incapacity
by Particular Errors (Reading, Writing,
Experimentation, etc.).
§ 992. Same : Grounds of an Expert Opinion.
§ 993. Knowledge ; Testing the Witness' Capacity
to Observe.
§ 994. Same : Grounds of Knowledge, and Oppor-
tunity to Observe.
§ 995. Memory; Testing the Capacity and the
Grounds of Recollection.
§ 996. Narration ; Discrediting the Form of Testi-
mony.
CHAPTEB XXXIII.
Topic IV. — Specific Error (Contradiction).
§ 1000. Theory of this Mode of Impeachment.
§ 1001. Error on Collateral Matters cannot be
Shown ; (1) Logical Reason.
§ 1002. Same: (2) Reason of Auxiliary Policy.
I 1003. Test of CoUateralness.
§ 1004. Two Glasses of Facts not Collateral; (1)
Facts Relevant to the Issue.
§ 1005. Same: (2) Facts discrediting the Wit-
ness as to Bias, Corruption, Skill, Knowl-
edge, etc.
§ 1006. Collateral Questions on Cross-examina-
tion.
§ 1007. Contradicting Answers on the Direct
Examination; Supporting the Contra-
dicted Witness.
§ 1008. Fatsua in Uno, Fahus in Omnibus;
General Principle.
§ 1009. Same: (1) First Form of Rule: The
Entire Testimony must be rejected.
§ 1010. Same: (2) Second Form of Rule: The
Entire Testimonv may be Rejected.
§ 1011. Same: (3) Third Form of Rule: The
Entire Testimony must be Rejected, unless
Corroborated.
§ 1012. Same: (4) Fourth Form of Rule: The
Entire Testimony may be Rejected, unless
Corroborated.
§ 1013. Same: There must be a Conscious False-
hood.
§ 1014. Same : Falsehood must be on a Material
Point.
§ 1015. Same : Time of the Falsehood.
OHAPTEK XXXIV.
Topic V. — Self-Contradiction.
1. General Frtnciple.
I 1017. Theory of Relevancy.
§ 1018. Same: not admitted as Substantive Testi-
mony, nor excluded as Hearsay.
§ 1019. Principle of Auxiliary Policy; Rules for
avoiding Unfair Surprise and Confusion
of Issues.
2. Collateral Matters Excluded.
§ 1020. Test of CoUateralness.
I 1021. Two Classes of Facts not Collateral; (1)
Facts Relevant to the Issue.
§ 1022. Same: (2) Facts discrediting the Witness
as to Bias, Corruption, Skill, Knowledge,
otc.
§ 1023. Cross-examination to Self-Contradiction,
without Extrinsic Testimonj',
3. Preliminary 'Warning Necessary.
§ 1025.
§ 1026.
§ 1027.
§ 1028.
§ 1029.
§ 1030.
§ 1031.
§ 1032.
I 1033.
Reason of the Rule.
History of the Rule.
Objections to the Rule.
State of the Law in Various Jurisdictions.
Preliminary Question must be Specific as
to Time, Place, and Person.
Testimony of Absent or Deceased Wit-
nesses ; is the Requirement here also
Indispensable ?
Same: (1) Depositions.
Same: (2) Testimony at a Former Trial.
Same: (3) Dying Declarations; (4) At-
testing - Witness, and other Hearsay
Witnesses.
§ 1034. Same : (5) Proposed Testimony admitted
by Stipulation to avoid a Contmuance.
§ 1035. Self-contradiction contained in other
Sworn Testimony; is the Preliminary
Question here necessary?
§ 1036. Recall for Putting the Question; Showing
a Writing to the Witness.
§ 1037. Contradiction admissible, no matter what
the Answer to the Preliminary Question.
§ 1038. Assertion to be Contradicted must be In-
dependent of the Answer to the Prelimi-
nary Question.
§ 1039. Preliminary Question not necessary for
Expressions of Bias, for a Party's Admis-
sions, or for an Accused's Confessions;
Impeaching one's Own Witness.
4. What amounts to a Self-Contradiction
or Inconsistency.
§ 1040. Tenor and Form of the Inconsistent State-
ment (Utterances under Oath, Admissions
and Confessions, Joint Wiitings, Incon-
sistent Behavior).
§ 1041. Opinion, as Inconsistent.'
§ 1042. Silence, or Negative Statements, as
Inconsistent; (1) Silence, etc., as consti-
tuting the Impeaching Statement.
§ 1043. Same: (2) Silence, etc., as constituting the
Testimony to be Impeached.
6. Explaining away the Inconsistency.
§ 1044. In general.
§ 1045. Putting in the Whole of the Contradictory
Statement.
§ 1046. Joining Issue as to the Explanation.
CONTENTS.
CHAPTEB XXXV.
Topic VI. — Admissions.
1. General Theory.
§ 1048. Nature of Admissions.
§ 1049. Admissions, distinguished from the Hear-
say exception for Statements of Facts
against Interest; Deatli not necessary.
§ 1050. Admissions, dibtinguisbed from Confes-
sions ; Admissions under Duress.
§ 1051. Admissions, distinguished from Testi-
monial Self-Contradiciions; Prior "Warn-
ing not necessarjr.
§ 1052. Admissions, distinguished from Conduct
indicating a ConsciousnePS of Guilt
(Flight, Fraud, Spoliation of Documents,
Witnliolding of Evidence, and the like).
§ 1053. Admissions, as not subject to rules for
Testimonial Qualifications ; Personal
Knowledge ; Infancy.
§ 1034. Admissions, excluded as evidence of cer-
tain facts; (1) Contents of Documents;
(2) Execution of Attested Documents.
§ 1055. Admissions, as insufficient for proof of cer-
tain facts; (1) Marriage; (2) Divorce;
(3) Criminal Cases.
§ 1056. Admissions, as distinguished from Estop-
pels, Warranties, Contracts, and Arbitra-
tions; Admissions made to Third Persons,
or after Suit Begun.
§ 1057. Admissions, as distinguished from Solemn
or Judicial Admissions.
§ 1058. Same : Quasi-Admissions not conclusive ;
Explanations; Prior Consistent Claims ;
Putting in the Whole of the Statement.
2. 'What Statements are Admissions.
§ 1060. Implied Admissions ; Sundry Instances.
§ 1061. Hypothetical Admissions ; (1) Offer to
Compromise or Settle a Claim; Greneral
Principle.
§ 1062. Same: State of the Law in Various Juris-
dictions.
§ 1063. Same: (2) Admissions in Pleadings ; (o)
Attorneys* Admissions, in general.
§ 1064. Same (h) Common-Law Pleadings in the
Same Cause, as Judicial Admissions.
§ 1065. Same: (c) Bills and Answers in Chancery
in other Causes.
§ 1066. Same: {d) Common-Law Pleadings in
other Causes.
§ 1067.
Same : (e)
Pleadings.
Superseded or Amended
Vicarious Admissions (by other than the
Party Himself).
In general.
Admissions by Seference to a Third
Person.
Third Person's Statement assented to by
Party's Silence; General Principle.
§ 1072. Same: Specific Kules; Statements made
during a Trial, under Arrest ; Notice to
Quit; Omission to Schedule a Claim.
Third Person's Document; Writing sent
to the Party or Found in his Possession ;
Unanswered Letter; Accounts Hendered;
" Proofs of Loss " in Insurance.
Same : Books of a Corporation or Partner-
ship.
Same : Depositions in another Trial, Used
or Referred to.
Nominal and Real Parties ; Representative
Parties (Executor, Guardian, etc.) ;
Stockholders ; Joint Parties ; Confessions
of a Co-defendant; Other Parties to the
Litigation.
§ 1077. Privies in Obligation ; Joint Promisor ;
Principal and Surety; etc.
Same: Agent; Partner; Attorney; Dep-
uty-Sheriff ; Husband and Wife ; Inter-
preter.
Same: Co-Conspirator; Joint Tortfeasor.
Privies in Title; General Principle;
History of the Principle.
Same: Decedent; Insured; Co-legatee;
Co-heir; Co-executor; Co-tenant; Bank-
rupt Debtor.
Same: Grantor, Vendor, Assignor, In-
dorser ; (1) Admissions before Transfer ;
(a) Realty; Admissions against Docu-
mentary "Title; Transfers in Fraud of
Creditors.
Same: (6) Personaltj-; New York rule.
Same : (c) Negotiable Instruments.
Same: (2) Admissions after Transfer;
Realty and Personalty' in general.
Same: Transfers in Fraud of Creditors.
1087. Same: Other Principles affecting Grant-
or's Declarations as to Properly, discrim-
inated.
§ 1069.
§ 1070.
§ 1071.
§ 1073.
§ 1074.
§ 1075.
§ 1076.
§ 1078.
1079.
1080.
1081.
1082.
1083.
1084.
1U85.
§ 1086.
CHAPTER XXXVI.
SUB-TITLE* ni. — TESTIMONIAL REHABILITATION.
Introductory.
5 1100. Distinction between (1) Admissibility of
Evidence to Rehabilitate or Support a
Witness, and (2) Stage of the Examina-
tion at which such Evidence can be
offered.
§ 1101. Arrangement of Topics.
A. After Impeachment of Moral Character.
§ 1104. (n) Proving Good Character in Support,
in General.
§ 1105. Same: (1) after evidence of General
Character.
§ 1106. Same: (2) after evidence of Particular
instances of Misconduct, by Cross-exami-
nation or Record of Conviction.
§ 1107.
§ 1108.
§ 1109.
§ 1110.
§ nil.
§ 1112.
Same : (3) after evidence of Bias, Inter-
est, or Corruption. "
Same: (4) after evidence of Self-Contra-
diction (Inconsistency).
Same: (5) after Contradiction by other
Witnesses.
Same : Other Principles, distinguished.
(6) Discrediting the Impeaching Witness;
(1) Cross-examining to Rumors of Miscon-
duct; (2) Contradicting the Rumors;
(3) Impeaching his General Character,
(c) Explaining away the Bad Reputation:
(1) Reputation due to Malice, etc.: (2)
Witness' Veracity Unimpaired ; (3) Wit-
ness Reformed.
.Till
CONTENTS.
B. After Impeachment by Particular Acts
of Misconduct.
§ 1116. Denial of the Fact ; Innocence of a Crime
proved by Record.
§ 1U7. Same: Explaining awajr the Fact; Ee-
for'med Good Character in Support.
C. After Impeachment by Bias, Interest,
Self-Contradiction, or Admissions.
§ 1119. Denial of the Fact ; Explaining away the
Fact; Good Character in Support; Putting
in the whole o£ Conversation, etc.
B. Behabilitation by Prior Consistent
Statements.
1. Witnesses in General.
§ 1122. General Theory.
§ 1123. History.
§ 1121. Offered (1) in Chief, before any Impeach-
ment.
§ 1125. Offered (2) after Impeachment of Moral
Character.
§ 1126. Offered (3) after Impeachment by Incon-
sistent Statement.
§ 1127. Offered (4) after Impeachment by Con-
tradiction.
§ 1128, Offered (5) after Impeachment by Bias
Interest, or Corruption ; Statements of an
Accomplice.
§ 1129. Offered (6) after Impeachment as to
Recent Contrivance.
§ 1130. Same: Statements Identifying an Ac-
cused, or Fixing a Time or Place.
§ 1131. Offered (7) after Cross-examination or
Impeachment of any Sort.
§ 1132. Consistent Statements are themselves not
Testimony; Impeached Witness himself
may prove them.
§ 1133. Party's Statements of Claim, to rebut his
Admissions.
2. Special Classes of Witnesses.
§1134. Complaint of Rape; History.
§ 1135. Same: (1) First Theory: Explanation of
an Inconsistency; Fact of Complaint is
admissible.
§ 1136. Same: Consequences of this Theory;
Details not admitted; Complainant must
be a Witness.
§ 1137. Same: (2) Second Theory: Rehabilita-
tion by Consistent Statement.
§ 1138. Same: Consequences of this Theory;
Details are Admissible ; Complainant must
be a Witness, and Impeached.
§ 1139. Same: (3) Third Theory: Spontaneous
or Res Gestse Declarations, as Exception
to Hearsay Rule.
§ 1140. Same: Summary.
§ 1141. Complaint in Travail by Bastard's
Mother.
§ 1142. Owner's Complaint after Robbery or
Larceny.
§ 1143. Statements by Possessor of Stolen Goods.
§ 1144. Accused's Consistent Exculpatory State-
ments.
CHAPTEB XXXVII.
TITLE III. — AUTOPTIC FROFERENCE (REAL EVIDENCE).
1. General Principle.
§ 1150. Definition of the Process.
§ 1151. General Principle : Autoptic Preference
always Proper, unless Specific Reasons of
Policy apply.
§ 1152. Sundry Instances of Production and In-
spection in Court.
2. Independent Principles incidentally
affecting Autoptic Preference.
§ 1154. Irrelevant Facts not to be proved (Color,
Resemblance, Appearance, etc., to show
Race, Paternity, Age, etc.; Changed
Conditions of Premises).
§ 1155. Privilege, as a ground for Prohibition
(Self-Crimination, Plaintiff suing for
Corporal Injury).
§ 1156. Sundry Independent Principles sometimes
involved (Handwriting, Hearsay, Photo-
graphs, etc.).
3. Iiimitations germane to the Process
itself of Autoptic Preference.
§ 1157. Unfair Prejudice to an Accused Per-
son (Exhibition of Weapons, Clothes,
Wounds, etc.).
§ 1158. Unfair Prejudice to a Civil Defendant, in
Personal Injury Cases.
§ 1159. Indecencv, or other Impropriety; Liquor
sampled by Jurors.
§ 1160. Incapacity of the Jury to appreciate by
Observation (Experiments in Court; In-
sane Person's Conduct).
§ 1161. Physical or Mechanical Inconvenience of
Production; Patent Infringements.
§ 1162. Production Impossible; View by Jury;
(1) General Principle.
§ 1163. Same: (2) View allowable upon any
Issue, Civil or Criminal ; Statutes.
§ 1164. Same : (3) View allowable in Trial Court's
Discretion.
§ 1165. Same : (4) View by Part of Jury.
§ 1166. Same: (5) Unauthorized View.
§ 1167. Same: Principles to be distinguished
(Juror's Private Knowledge; Official
Showers; Accused's Presence; Fence
and Road Viewers).
§ 1168. Non-transmissibility of Evidence on Ap-
peal; Jury's View as "Evidence."
I'ABT II. — RULES OF AUXILIARY PROBATIVE POLICY.
CHAPTER XXXVIII.
INTRODUCTION. — GENERAL SURVEY OF AUXILIARY RULES,
§ 1171. Nature of the Rules.
§ 1172. Summarj' ot the Rules.
§ 1173. " IJest Evidence " Principle ; History of
the Phrase.
§ 1174.
§ 1175.
Same: Scope of the Phrase.
Primary and Secondary Evidence.
COXTKNTS.
CHAPTEB XXXI K.
TITLE I. — PREFERENTIAL RULES.
SUB-TITLE L— PKODUCTION OF DOCUMENTAET ORIGINALS.
A. Introductory.
§1177. History of the Rule.
§ 1178. Analysis of Topics.
B. The Eule Itself.
(a) " In proving a writing."
§ 1179. Keason of the Rule.
§ 1180. Same : Spurious Reason.
§ 1181. Rule not applicable to ordinary Unin-
scribed Chattels.
§ 1182. Rule as applicable to Inscribed Chattels.
§ 1183. Rule applicable to all Kinds of Writings.
(b) "Production must be made."
§ 1185. What constitutes Production; Witness
testifj-ing to a Document not before him.
§ 1186. Production of 'Original always Allowable.
§ 1187. Dispensing with Authentication does not
dispense with Production.
§ 1188. Dispensing with Production does not dis-
pense with Authentication.
§ 1189. Order of Proof as between Execution,
Loss, and Contents.
§ 1190. Production made, may a Copy also be
offered ?
(c) " Unless it is not feasible.'"
§ 1192. General Principle ; Unavailability of the
Original; Judge and Jury.
§ 1193. (1) Loss or Destruction ; History.
§ 1194. Same: General Tests for Sufficiency of
Proof of Loss ; Trial Court's Discretion.
§ 1195. Same: Specific Tests and Rulings.
§ 1196. Same: Kinds of evidence admissible in
proving Loss (Circumstantial, Hearsay,
Admissions, Affidavits, etc.)-
§ 1197. Same : Discriminations between Loss and
other situations.
§ 1198. Same: Intentional Destruction by Pro-
ponent himself.
§ 1199. (2) Detention hv Opponent; in General.
§ 1200. Same: (a) Possession by Opponent;
What Constitutes Possession.
§ 1201. Same: Mode of Proving Possession;
Documents sent by Mail.
§ 1202. Same: (6) Notice to Produce; General
Principle.
§ 1203. Same: Rule of Notice not Applicable;
Documents lost, or sent by Mail.
§ 1204. Same: Rule of Notice Satisfied; (1)
Document present in Court.
§ 1205. Same: Rule of Notice Satisfied; (2) Im-
plied Notice in Pleadings; New Trial;
Trover, Forgery, etc.
§ 1206. Same: Rule of Notice Satisfied; (3)
Notice of Notice.
§ 1207. Same: Exceptions to the Rule of Notice
(Fraudulent Suppression by Opponent),
Deed Recorded, Waiver, Documents out
of Jurisdiction).
§ 1208. Same : Procedure of Notice ; Person, Time,
and Tenor.
§ 1209. Same: (c) Failure to Produce; What
constitutes Non-Production.
§ 1210. Same: Consequences of Non-Production
for Opponent {Exclusion of Evidence;
Default; Inferences),
f 1211. (3) Detention by Third Person; History.
§1212. Same: (a) Person within the Jurisdiction.
§ 1213. Same: (6) Person without the Jurisdic-
tion.
§ 1214. (4) Physical Impossibility of Removal.
§ 1215. (5) Irremovable Judicial Records; Gen-
eral Principle (Records, Pleadings, Deposi-
tions, Wills, etc.; Statutoiy Rules).
§ 1216. Same: Exception for Nul Tiel Record and
Perjury.
§ 1217. Same : Discriminations (Dockets, Certified
Copies, etc.).
§ 1218. (6) Irremovable Official Documents ; (gen-
eral Principle.
§ 1219. Same: Specific Instances, at Common
Law.
§ 1220. Same : Specific Instances, under Statutes.
§ 1221. Same; Exceptions at Common Law.
5 1222. Same: Discriminations.
I 1223. (7) Private Books of Public Importance
(Banks, Corporations, Title-Abstracts,
Marriage-Registers, etc.).
§ 1224. (8) Recorded Conveyances; General Prin-
ciple; Four Forms of Rule.
§ 1 225. Same : Statutes and Decisions.
§ 1226. Same : Sundry Consequences of Principle
of not Producing Recorded Deeds.
§ 1227. Same: Other Principles Discriminated
(Certified Copies, Affidavits, Abstracts).
§ 1228. (9) Appointments to Office.
I 1229. (10) Illegible Documents.
§ 1230. (11) Voluminous Documents (Accounts,
Records, Copyright Infringement; Ab-
sence of Entries).
(d) " Of the writing itself."
§ 1231. What is the "Original" Writing? Gen-
eral Principle.
§ 1232. (1) Duplicates and Counterparts: Either
may be nsed without producing the Other.
§ 1233. Same: All Duplicates or Counterparts
must be accounted for before using Copies.
§ 1234. Same: Duplicate Notices, Blotter-Press
Copies, and Frinting-Press Copies, as
Originals.
§ 1235. (2) Copy acted on or dealt with, as an
Original for certain purposes (Bailments,
Admissions. Bank-books, Accounts, etc.).
§ 1236. (3) Copy niade an Original by the Sub-
stantive* Law applicable; (a) Telegraphic
Dispatches.
§ 1237. Same : (6) Printed Matter.
§ 1238. Same: (c) Wills and Letters of Adminis-
tration.
§ 1239. Same: (d) (rovemment Land-Grants,
Land-Certificates, and Land-Patents ;
Mining Rights ; Recorded Private Deeds.
§ 1240. Same: (e) Tax-lists, Ballots, Notarial
Acts, and Sundry Documents.
§ 1241. (4) Records, Accounts, etc., as Exclusive
Memorials under the Parol Evidence Rule.
(e) " Whenever the purpose is to establish
its terms."
§ 1242. (^neral Principle: Facts about a Docu-
ment, other than its Terms, are provable
without Production.
§ 1243. Application of the Principle: (1) Oral
Utterances accompanying a Document
reM or delivered; (2) Document as the
Subject of Knowledge or Belief.
CONTENTS.
§ 1244. Same: (3) Identity of a Document; (4)
Summary Statement of Tenor or Effect,
Multifarious Document (Record, Kegis-
ter, etc.) ; Absence of Entries.
§ 1245. Same : (5) Fact of Payment of a Written
Claim; Receipts.
§ 1246. Same: (6) Fact of Ownership; (7) Fact
of Tenancy.
§ 1247. Same : (8) Fact of Transfer of Realty, or
(9) of Personalty.
§ 1248. Same: (10) Execution of a Document;
(11) Sending or Publication of a Demand,
Notice, etc.
§ 1249. Same : (12) Sundry Dealings with Docu-
ments (Conversion, Loss, Forgery, Lar-
ceny, Agency, Partnership, Service of
Writ, etc.).
§ 1250. Same: (13) Miscellaneous Instances.
C. Szceptions to the Kule.
§ 1252. (1) "Collateral" Facts; History.
§1253. (2) Same : Principle.
§ 1254. Same: Specific Instances.
I 1255. (2) Party's Admission of Contents; Rule
in Slatterie v. Poolej'.
§ 1256. Same: Forms of the Rule in Various
Jurisdictions ; Deed-Recitals.
I 1257. Same : Related Rules (Deed-Recitals; Oral
Disclaimer of Title; New York Rule).
§ 1258. (3) Witness' Admission of Contents, on
Voir Dire.
§ 1259. (4) Witness' Admission of Contents, on
Cross-Examination ; Rule in The Queen's
Case; Principle.
§ 1260. Same : Arguments against the Rule.
§1261. Same : Details of the Rule.
I 1262. Same: Rule as applied to Prior State-
ments in Depositions.
§ 1263. Same : Jurisdictions recognizing the Rule
in The Queen's Case.
D. Bules about Secondary Svidence of Con-
tents (Copies, Degrees of Bvidence,
etc.).
§ 1264. In general.
1. Sules preferring one Kind of Testimony to
another (Degrees of Evidence, etc.).
§ 1265. General Principle.
§ 1266. Nature of Copy-Testimonv as distin-
guished from Recollection-Testimony.
§ 1267. Is a Written Copy the Exclusive Form of
Testimony ? Pioof of lost Record, Will,
etc., by Recollection.
§ 1268. Is a Written Copy conditionally preferred
to Recollection V Admissibility of Recol-
lection before showing Copy unavailable.
§ 1269. Same: (a) Copy preferred for proving
Public Records.
§ 1270. Same : (6) Copy of Record of Conviction,
as preferred to Convict's Testimony ' on
Cross-Examination.
§ 1271. Same : (c) Copy of Foreign Statutory Law,
as preferred toRecollection-Testimony.
§ 1272. Preferences as between Recollection Wit-
nesses.
§ 1273. Preference as between Different Kinds of
Written Copies; Certified and Sworn
Copies.
§ 1274. Discriminations against Copy of a Copy ;
(1) in General.
§ 1275. Same : (2) Specific Rules of Preference as
to Copy of Copy.
2. Sules as to Qualifcations of Witness to Copy.
§ 1277. In general.
§ 1278. Witness to Copy must have Personal
Knowledge of Original.
§ 1279. Same: Exception for Copy of Official
Records ; Cross-Reading not necessary.
§ 1280. Sundry Distinctions (Press-copies: Wit-
ness not the Copyist; Double Testimony;
Impression or Belief; Spoliation).
3. Sules depending on the Hearsay Sule and its
Exceptions.
§ 1281. Witness must be called, unless by Excep-
tion to the Hearsay Rule for Certified
Copies, etc.
4. Sundry Principles,
§ 1282. Completeness of Copy; Abstracts.
CHAPTEB XIi.
SUB-TITLE XL — EULES OF TESTIMONIAL PREFEEENCE.
§ 1286. Nature and Kinds of Testimonial Preference.
Topic I. — Provisional (or Conditionai.) Testimonial Preferences.
§ 1286. General Nature and Policy of These Rules.
Sub-Topic A. — Prefekence for Attesting Witness.
§ 1287. History.
§ 1288. Reason and Policj' of the Rule.
Bule: (a) " Where the execution of any
docwnent,"
§ 1290. Kind of Document covered by the Rule ;
at Common Law, all Documents were
included ; Statutory Modifications.
§ 1291. Documents Incidentally or "Collaterally"
in Issue.
(b) "Purports to have been attested,"
§ 1292. Who is an Attesting Witness,
(c) ''A party desiring to prove its
execution,"
5 1293. Rule applies onl}- in proving Execution,
not in using the Document for Other
Purposes.
(d) "Against an opponent entitled in the state
of the issues to dispute execution,"
\ 1294. Execution not disputable (1) because of
Estoppel or other rule of Substantive
Law.
XI
CONTENTS.
§ 1295. Execution not disputable (2) because of
rule of Pleading.
§ 1296. Execution not disputable (3) because of
Judicial Admission.
§ 1297. Execution not disputable (-1) because of
Opponent's Claim under tbe Ijame Instru-
ment.
§ 1298. Execution disputable, and rule applicable,
TA'here the Opponent merely Produces the
Instrument, without Claiuiiuj; under it.
1
(e) " Befirre using other ttstimony,''^
§ 1299. Attester preferred to any Third Person,
including the Maker of the Document.
§ 1300. Attester preferred to Opponent's Extra-
judicial Admissions.
§ 1301. Attester preferred to Opponent's Testi-
mony on tbe Stand.
(f) " Must either produce the attester as a
witness"
§ 1302. Attester need not Testify Favorably;
Witness denying or not Recollecting.
§ 1303. Same : Discriminations (Refreshing Recol-
lection ; Implied Attestation Clause ;
Impeaching one's Own "Witness, or one's
Own Attestation ; Illinois Rule admitting
only Attesting Witnesses in Probate).
§ 1304. Number of Attesters required to be
Called.
§ 1305. Same: Rule satisfied when One Compe-
tent Witness testifies by Deposition or
AiBdavit.
1306. Same: When All Witnesses are unavail-
able in Person, One Attestation only need
be Authenticated.
(g) " Or show his testimony to be unavailable*^
General Principle of Unavailability.
All the Attesters must be shown Unavail-
able.
Statutory enumerations of Causes of
Unavailability.
Causes of Unavailability: (1) Death; (2)
Ancient Document.
Same: (3) Absence from Jurisdiction.
Same: (4) Absence in UnknoT\Ti Parts.
Same: (5) Witness' Name Unknown,
through Loss or Illegibilitv of Document.
Same: (6) Illness or. Infirmity; (7) Fail-
ure of Memory ; (8) Iiriprisonment.
Same: (9) Incompe'ency, through In-
terest, Infamv, Insanitv, Blindness, etc.
Same: (10) Refusalto Testify, Privileged
or Unprivileged.
Same : (11) Document proved by Reg-
istry-Copy.
Same: Summary.
§ 1308.
§ 1309.
§ 1310.
§ 1311.
§ 1312.
§ 1313.
§ 1314.
§ 1315.
§ 1316.
§ 1317.
§ 1318.
§ 1319.
(h) "And also authenticate his attestation,
unless it is not feasible.**
§ 1320. It the Witness is Unavailable, must his
Signature be proved, or does it suffice to
prove the Maker's ?
§ 1321. Proof of Signature dispensed with, where
not Obtainable.
§ 1325.
I 1326.
§ 1327.
§ 1328.
Sdb-Topic B.
CHAPTEE XT-iT.
-Pkeferked Reports of Prior Testimony.
Introductory.
(n) Magistrate's Report of Accused's
Statement ; General Principle.
Same : Magistrate's Report not required
if lost or not taken.
Same: Written Examination usable as
Memorandum or as Written Confession.
§ 1329. (6) Magistrate's or Coroner's Report of
Witness' Testimony.
§ 1330. (c) Report of Testimony at a Former
Trial.
§ 1331. {d) Deposition taken de bene esse,
§ 1332. (e) Dying Declarations, and other Extra-
judicial Statements.
ScB-Topic C. — SusDRT Preferred Witsesses.
§ 1335.
§ 1336.
§ 1337.
Official Certificates.
Same : Celebrant's Certificate of Marriage
as preferred to Other E^-ewitnesses.
Same: Official or Certified Copies of
Documents, as preferred to Examined or
Sworn Copies.
1338. Preference of Copy-Witness to Recollec-
tion-Witness.
1339. Sundry Preferences for Eyewitnesses and
other Non-Ofiicial Witnesses (Writer of a
Document, to prove Forgerv; Bank Presi-
dent or Cashier, to prove Counterfeiting ;
Surveyor, to prove Boundary ; etc.).
CTTAPTEH XLU.
Topic II. — Coxclusive (or Absolute) Testimonial Preferences.
§ 1345. Nature of a Conclusive Testimonial
Preference.
§ 1346. Cases involving the Integration ("Parol
Evidence ") Principle, distinguished
(Corporate Records, Judicial Records,
Contracts, etc.).
§ 1347. Cases involving the Effect of Judgments,
distinguished (Judgments, Certificates of
Married Women's Acknowledgments,
SherifEs' Returns, Judiciallv Established
Copies, Land Office Rulings', etc.).
§ 1348. Genuine Instances of Rules of Conclusive
Preference ; General Considerations of
Policy and Tlieorj' applicable.
§ 1349. Same': (1) Magistrate's Report of Tes-
timony.
§ 1350. Same: (2) Enrolled Copy of Legislative
Act; mav the Journals override it?
§ 1351. Same: (3) Certificate of Election.
§ 1352. Same: (4) Sundry Oflicial Records and
Certificates (Certificates of Jurat, of
Acknowledgment of Deed, of Record of
Deed, of Ship Registry, of Protest of
Commercial Paper; Legislative Recitals
in Statutes).
§ 1353. Constitiitionalityof Statutes makingTesti-
mony Conclusive; General Principles.
§ 1354. Same: Application of the Principles
(Liability in Tort, Contract, or Crime;
Presumptions as to Tax-Collectors' Deeds,
Railroad Commissioners' Rates, Immi-
gration Officers' Certificates, Referees'
Reports, Insolvency, Gaming, etc.).
CONTENTS.
TITLE II.— ANALYTIC RULES: THE HEARSAY RULE.
CHAPTER XLIII.
TNTRODUCTORY : THEORY AND HISTORY OF THE HEARSAY RULE.
§ 1360. Nature of the Analrtic Rules.
§ 1361. Nature of Hearsay, as an Extra-judicial
Testimonial Assertion.
§ 1362. Theory of the Hearsay Rule.
§ 1363. Spurious Theories of the Hearsay Rule.
§ 1364. History of the Hearsay Rule.
§ 1365. Cross-examination and Confrontation.
§ 1366. Division of Topics.
CHAPTEB XLIV.
SUB-TITLE L — THE HEARSAY RULE SATISFIED.
Topic I. — By Cross-examination.
In General.
§ 1367. Cross-examination as a distinctive and
vital feature of our Law of Evidence.
§ 1368. Theory and Art of Cross-examination.
§ 1369. Other Rules concerning Cross-examina-
tioUj discriminated.
§ 1370. Cross-examined Statements not an Ex-
ception to the Hearsay Rule.
§ 1371. Opportunity of Cross-examination as
equivalent "to Actual Cross-examination.
§ 1372. Division of Topics.
1. Kind of Tribunal or Offloer, as affecting
Opportunity of Cross-examination.
§ 1373. General Principle; Sundry Tribunals
(Commissioners of Land-titles, Pilotage,
Banlsruptcy, etc., Arbitrators).
§ 1374. Testimony at Coroner's Inquest.
I 1375. Testimony before Committing Magistrate
or Justice" of the Peace.
§ 1376. Depositions; Effect of Other Principles
Discriminated.
1377. Same: General Principle: Opportunity
of Cross-examination required.
§ 1378. Same: Notice and Sufficient Time; At-
tendance cures Defective Notice.
§ 1379. Same : Plural Depositions at Same Time
and Different Places.
§ 1380. Same: English and Canadian Statutes.
§ 1381. Same: U. S. Federal Statutes.
§ 1382. Same : U. S. State Statutes.
§
§ 1383. Same : Depositions in Perpetuam Memo-
I'iam,
§ 1384. Affidavits; Testimony of King or Am-
bassador.
§ 1385. Jix parte Expert Investigations ; Pre-
liminary Rulings on Voir Dire; Testi-
mony by an Opponent.
2. Issues and Parties, as affecting Oppor-
tunity of Cross-examination.
General Principle ; Issue and Parties mast
have been Substantially the Same.
Issue the Same.
Parties or Privies the Same.
Deposition used by Either Party; Oppo-
nent's Use of a Deposition taken but not
read.
§ 1386.
§ 1387.
§ 1388.
5 1389.
3. Conduct of the Cross-examination itself,
as affecting Opportunity of Cross-ex-
amination.
§ 1390.
§ 1391.
1393.
Failure of Cross-examination through
Witness' Death or Illness.
Failure of Cross-examination through the
Witness' Refusal to answer or the Fault
of the Party offering him.
§ 1392. Non-Responsive Answers; General or
" Sweeping " Interrogatories.
Sundry Insufficiencies of Cross-examina-
tion.
CHAPTEB XLV.
Topic II. — By Confrontation.
1. General Principle of Confrontation.
§ 1395. Purpose and Theory of Confrontation.
§ 1396. Witness' Presence before Tribunal may
be Dispensed with, if not Obtainable.
§ 1397. Effect of Constitutional Sanction of Con-
frontation in Criminal Cases.
§ 1398. Same: State of the Law in the Various
Jurisdictions.
§ 1399. Confrontation, as requiring the Tribu-
nal's or the Defendant's Sight of the
Witness.
2. Circumstances of Necessity Dispensing
with Witness' Personal Presence.
§ 1401. Preliminary Distinctions ; (a) Deposition
and Testimony; (6) Civil and Criminal
Cases ; (c) Taking and Using a Deposi-
tion.
§ 1402. General Principle of Necessity or Uh-
availabilitv.
§ 1403. Specific Cases of Unavailability: (1)
Death.
§ 1404.
§ 1405.
§ 1406.
§ 1407.
§ 1408.
§ 1409.
§ 1411.
§ 1412.
§ 1413.
§ 1414.
§ 1415.
§ 1416.
Same: (2) Absence from Jurisdiction.
Same: (3) Disappearance; Inability to
Find; (4) Opponent's Procurement,
Same: (5) Illness, Infirmity, Age.
Same : (6) Imprisonment; (7) Official
Duty or Privilege ; (8) Distance of Travel.
Same: (9) Insanity, or other Mental
Incompetency.
Same; (10) Disqualification by Interest
or by Infamy.
Same : Statutes affecting Depositions de
bene esse.
Same: Statutes affecting Depositions in
perpetuam memoriam.
Same: Statutes affecting Former Testi-
mony,
Proof of Unavailability of Witness.
If Witness is Available for Testifying,
Deposition is not Usable.
Same: Rule not Applicable (1) to
Deposition of Party-Opponent; or (2) to
Deposition containing Self-Contradiction ;
but applicable (3) to Deposition of
Xlll
CONTENTS.
Opponent's 'Witness, and (4) to Former
Testimony in Malicious Prosecution.
§ 1417. Same: Exceptions to tlie Rule for (1)
Chancery and analogous Proceedings ;
(2) Commissions by D<:dimus Potestatem ;
(3) Depositions in Perpetuam Memoriam;
(4) Will-Probates; (5) Bastardy Com-
plaints.
§ 1418. Anomalous Statutes by which no necessity
suffices to admit.
CHAPTER XIiVI.
SUB-TITLE II. — EXCEPTIONS TO THE HEARSAY RULE.
Iktroductoky : Genekal Theory of the Exceptions.
Principle of the Exceptions to the Hear-
say Rule.
First Principle: Necessity.
Second Principle: Circumstantial Guar-
antee of Trustworthiness.
§ 1423. Incomplete Application of the Two
Principles.
§ 1420.
§ 1421.
§ 1422.
§ 1424.
§ 1425.
§ 1426.
Witness-Qualifications, and other Rules,
also to be applied to Statements admitted
under these Exceptions.
Outline of Topics for each Exception.
Order of Considering the Exceptions.
OHAPTEB XliVn.
Topic I. — Dying Declarations.
§ 1430. History: Statutes.
1. The necessity Principle.
§ 1431. Scope of the Principle.
§ 1432. Rule Applicable in certain Criminal Cases
only.
§ 1433. Death in question must be the Declarant's.
.§ 1434. Circumstances of the Death related.
§ 1435. Further Limitations rejected.
I 1436. Foregoing Limitations improper.
2. The Circumstantial Guarantee.
§ 1438. In general; Solemnity of the Situation.
I 1439. Consciousness of the Approach of Death;
Subsequent Confirmation.
§ 1440. Certainty of Death.
§ 1441. Speediness of Death.
§ 1442. Consciousness of Approaching Death,
how determined.
§ 1443. Eevengefnl Feelings; Theological Belief.
3. Testimonial Qualiflcations, and Other
Independent Rules of Evldenee, as
applied to this Exception.
§ 1445. Testimonial Qualifications: Infamy, In-
sanity, Interest, Recollection, Leading
Questions, ^^'^ritten Declarations, etc.
§ 1446. Testimonial Impeachment and Rehabilita-
tion.
§ 1447. Rule against Opinion Evidence.
§ 1448. Rule of Completeness.
§ 1149. Rule of Producing Original of a Docu-
ment.
§ 1450. Rule of Preferring Written Testimony.
I 1451. Judge and Jury.
§ 1452. Declarations usable by Either Party.
CHAPTER XliVIII.
Topic II. — Statements op Facts against Interest.
§ 1455. In general ; Statutes.
1. The Necessity Principle.
§ 1456. Death, Absence, Insanity, etc., as making
the Witness Unavailable; Receipts of a
Third Person.
2. The Circumstantial Guarantee.
§ 1457. General Principle.
§ 1458. Statements predicating a Limited Interest
in Property.
§ 1459. Same: Other Statements (Admissions,
etc.) about Land, discriminated.
§ 1460. Statements predicating a Fact against
Pecuniary Interest; Indorsements of Pay-
ment; Receipts.
§ 1461. Statements of Sundry Facts affecting
Interest.
§ 1462. The Fact, not the Statement, to be against
Interest.
§ 1463. Facts may or may not be against Interest,
according to the Circumstances or accord-
ing to the Parties in Dispute.
§ 1464. No motive to Misrepresent; Preponder-
ance of Interest; Credit and Debit Entries.
§ 1465. Statement admissible for all Facts con-
tained in it ; Separate Entries.
§ 1466.
§ 1467.
§ 1468.
§ 1469.
Against Interest at the Time of the State-
ment ; Creditor's Indorsement of Paj'ment
on Note or Bond.
Statement to be made Ante Litem Motam.
Disserving Interest to be shown by Inde-
pendent Evidence.
Statement may be Oral as well as Writ-
ten.
3. Testimonial QuaUfloations, and Other
Independent Rules of Evidence and
Substantive Law.
§ 1471. Testimonial Qualifications.
§ 1472. Authentication.
§ 1473. Tenant's Statement used against Land-
lord's Title.
§ 1474. Principal's Statement used against Surety.
§ 1475. Distinction between Statements against
Interest, Admissions, and Confessions.
4. Arbitrary Iilmitations.
§ 1476. History of the Exception; Statement of
Fact against Penal Interest, excluded;
Confessions of Crime by a Third Pei"son.
§ 1477. Same : Policy of this Limitation.
XIV
CONTENTS.
CHAPTBB XLIX.
Topic III. — Declarations about Family History (Pedigree).
§ 1480. In general; Statntory Provisions.
1. The Necessity Principle.
§ 1481. Death, etc., of Declarant or of Family.
2. The Circumstantial Guarantee.
§ 1482. General Principle.
I 1483. Declarations must have been before Con-
troversy.
§ 1484. No Interest or Motive to Deceive.
3. Testimonial Qualifications and other
Independent Bules of ^Evidence.
§ 1485. (1) Testimonial Qualifications.
I 1486. (a) Sufficiency of the Declarant's Means
of Knowledge; General Principle.
§ 1487. Same : Declarations of Non-Relatives.
I 1483. Same: lieputation in the Neighborhood
or Community.
§ 1489. Same : Declarations of Relatives ; Distinc-
tions between different Kinds of Relatives.
§ 1490.
§ 1491.
§ 1492.
§ 1493.
§ 1494.
§ 1495.
§ 1496.
§ 1497.
Same: Declarant's Qualifications must be
Shown.
Same: Relationship always Mutual ; con-
necting the Declarant with Both Families.
Same: Relationship of Illegitimate Child.
Same: Testimony to one's Own Age.
Same: Statements of Family History, to
Identify a Person.
(A) Form of the Assertion : Family Bibles
or Trees, Tombstones, Wills, etc.
(2) Authentication ; Proving Individual
Authorship.
(3) Production of Original Document;
Preferred Writings.
2 and 3. Kind of Fact that may be the
Subject of the Statement.
§ 1500. General Principle.
§ 1601. Statements as to Place of Birth, Death,
etc.
§ 1502. Sundry Kinds of Facts.
§ 1503.
4. Arbitrary Iiimitations.
Kind of Issue or Litigation involved.
Topic IV.
CHAPTEB L.
-Attestation or a Subscribing Witness.
§ 1505. Theory of the Exception.
1. The Necessity Principle.
§ 1506. Attester must be Deceased, Absent from
Jurisdiction, etc.
2. The Circumstantial Guarantee.
§ 1507. General Principle.
§ 1508. Who is an Attester ; Definition of Attes-
tation,
3. Testimonial Principle.
§ 1510. Attester must be Competent at time of
Attestation.
§ 1511. Implied Purport of Attestation: (1) All
Elements of Due Execution Implied.
§ 1512. Same : Lack of Attestion-Clause is
Immaterial.
§ 1513. Same: (2) Must the Maker's Signature
or Identity also be otherwise proved?
§ 1514. Attester mav be Impeached or Supported
like other Ti^itnesses.
CHAPTEK LI.
Topic V. — Regular Entries.
§ 1517. In general.
§ 1518. History of the two Branches of the
Exception.
§ 1519. Statutory Regulation.
A. Regular Entries in General,
1. The Necessity Principle.
§ 1521. Death, Absence, etc., of the Entrant.
2. The Circumstantial Guarantee.
§ 1522. Reasons of the Principle.
§ 1523. Regular Course of Business ; (1) Business
or Occupation.
§ 1524. Same: English Rule: Duty to a Third
Person.
§ 1525. Same: (2) Regularity.
§ 1526. Contemporaneous with the Transaction.
§ 1527. No Motive to Misrepresent.
§ 1528. Written or Oral Statement.
3. Testimonial Qualifications, and Other
Independent Eules of Evidence.
§ 1530. Personal Knowledge of Entrant; Entries
bj' Book-keeper, etc.; on report of Sales-
man, Teamster, etc.
§ 1531. Form or Language of Entry; Impeaching
the Entrant's Credit.
§1532. Production of Original Book.
I 1533. Opinion Rule.
B. Parties' Accoukt-Books.
§ 1536, In General.
1. The Necessity Principle.
§ 1537. Nature of the Necessity.
§ 1538. Not admissible where Clerk was Kept.
§ 1539. Not admissible for Cash Payments or
Loans.
§ 1540. Not admissible for Goods delivered to
Other? on Defendant's Credit.
§ 1541. Not admissible for Terms of Special Con-
tract.
§ 1542. Not admissible in Certain Occupations.
§ 1543. Not admissible for Large Items or for
Immoral Transactions.
§ 1544. Rules not Flexible; Existence of Other
Testimony in Specific Instance does not
exclude Books.
XV
COXTENTS.
2. The Circumstantial Guarantee.
§ 1546. General Principle; Regularity of Entry
in (Juurse of Bu^^iuess.
§ 1547. Kegulari'.y, as affecting Kind of Occupa-
tiou or business.
§ 1548. Same : As atlecting Kind of Book ; Ledger
or Day-book.
§ 1549. Same: As affecting Kind of Item or
Entry; Cash Entry.
§ 1550. Contemporaneousness.
§ 1 55 1. Book must bear Honest Appearance.
§ 1552. Kepulation of Correct and Honest Book-
keeping.
3. Testimonial Qualifications, and Other
Independent Kules of Evidence.
§ 1554. Party's Suppletory Oath; Cross-Examina-
tion of Party ; Use of Books by or against
Surviving Party.
§ 1555. Personal Knowledge of Entrant; Party
and Salesman Venf.\ ing jointly.
§ 1556. Form and Language of Eniry; Absence of
Entry.
§ 1557. Impeaching the Book; Opponent's Use of
the Book as containing Admissions.
§ 1558. Production of Origiual Book ; Ledger and
Day-book.
4. Present Exception as affected by-
Parties' Statutory Competency.
§ 1559. Theory of Use of Parties' Books as Hear-
say.
§ 1560. Statutory Competency as Abolishing
Necessity for Parties' Books; Using the
Books to aid Recollection.
§ 1561. Relation of this Branch to main Excep-
tion; Books of Deceased Party; Books of
Party's Clerk.
CHAPTER 1,11.
Topic 'VI. — Suxdrt Statements of Deceased Persoxs.
A. Declakatioss ABOtjr Private Bocsda-
BIES.
§ 1563.
§ 1564.
§ 1565.
§ 1566.
§ 1567.
§ 1568.
§ 1569.
Historj' of the Exception.
General Scope of the Exception.
Death of Declarant.
No Interest to Misrepresent; Owner's
Statement, excluded.
Massachusetts Rule: Declarations must
be made (1) on the Land, and (2) bj' the
Owner in Possession.
Knowledge of Declarant.
Opinion Rule.
§ 1570. Form of Declaration : Maps, Surveys, etc.
§ 1571. Discriminations as to Res Gesta^ Admis-
sions, etc.
B. Ancient Deed-Recitals.
§ 1573. Ancient Deed-Recitals, to prove Lost
Deed, or Boundary, or Pedigree.
§ 1574. Other Principles Discriminated.
C. Statements by Deceased Persons in
General.
§ 1576.
Statutory Exception for all Statements of
Deceased Persons.
CHAPTEE LIII.
Topic VII. — Reputation.
§ 1580. In General.
A. Land-Boundaries and Land-Customs.
1. The Necessity Principle.
§ 1582. Matter must he Ancient.
2. The Circumstantial Guarantee.
§ 1583. General Principle: Reputation as Trust-
worthy.
§ 1584. Reputation, but not Individual Assertion.
§ 1585. Reputation not to Specific Acts.
§ 1586. Reputation onlj' to Matters of General
Interest.
§ 1587. Same: Application of the Rule; Private
Boundaries, Title, or Possession.
§ 1589. Reputation as (1) Post Litem ifotam,oT
(2) from Interested Persons, or (3) Favor-
ing a Right.
3. Testimonial Qualifications, and Other
Independent Eules of Evidence.
§ 1591. Reputation must come from Competent
Sources ; Reputation in Another District.
§ 1592. Vehicle of Reputation: Old Deeds, Leases,
Maps, Surveys, etc.
I 1593. Same: Jur;p-'s Verdict as Reputation.
§ 1594. Same : Judicial Order or Decree, or Arbi-
trator's Award, as Reputation.
§ 1595. Negative Reputation.
-B. Events of General History.
§ 1597. Matter must be Ancient; Statutory Regu-
lation.
§ 1598. Matter must be of General Interest.
§ 1599. Discriminations: (1) Judicial Notice; (2)
Scientific Treatises.
C. Marriage and Other Facts of Family
History.
§ 1602. Reputation of Marriage; General Prin-
ciple.
§ 1603. Same: What constitutes Reputation;
Divided Reputation; Negative Reputa-
tion.
§ 1604. Same : Sufficiency of Eeputation-evidence,
discriminated.
§ 1605. Reputatiou of other Facts of Family
History (Race-Ancestry, Legitimacy,
Relationship, Birth, Death, etc.).
D. Moral Character (Party or Witness).
§ 1608. Reputation and Actual Character, dis-
tinguished.
§ 1609. Reputation not a "Fact," but Hearsay
Testimony.
§ 1610. General theory of Use of Reputation as
Evidence of Character.
I 1611. Reputation, distinguished from Rumors.
§ 1612. Reputation must be General; Divided
Reputation.
§ 1613. Same: Majority need not have Spoken.
CONTENTS.
§ 1614. Same: Never hearing anything Against
the Person.
§ 1615. Beputation must be from Neighborhood
of Person.
§ 1616. Same: Reputation in Commercial or other
Circles, not the Place of Residence.
§ 1617. Time of Reputation: (1) Reputation before
the Time in Issue.
§ 1618. Same: (2) Reputation after the Time in
Issue.
§ 1619. Other Principles affecting Reputation, dis-
criminated; (Character in Issue, Witness'
Knowledge of Reputation, Belief on Oath).
§ 1620.
§ 1621.
§ 1623.
§ 1624.
§ 1625.
§ 1626.
Kind of Character: (1) Chastity; (2)
House of Ill-Fame ; (3) Common Offender.
Same: (4) Sanity; (5) Temperance; (6)
Expert Qualifications; (7) Negligence;
(8) Animal's Character.
E. Sundry Facts.
Reputation to prove Solvency ; or Wealth.
Reputation to prove Partnership.
Reputation to prove (1) Legal Tradition;
(2) Incorporation.
Reputation to prove Sundry Facts.
VOL. II. — h
xvii
LIST or STATUTOEY COMPILATIONS AND LATEST EEPOKTS
AND STATUTES CONSULTED.
I. Statutes.
The titles and dates of the compilations of statutes referred to in this work, and the
years of the latest session laws consulted in its preparation, are shown in the table below.
In a few jurisdictions new official revised compilations have been made since the ma-
terial was originally collected for this work, but the usual (and culpable) lack of a table
of cross-references in the new revision to the former numbering has made it impracti-
cable in this work to insert the new numbering in every instance ; for Massachusetts,
however (where a perfect table is published), and for South Carolina, the citations to the
revisions of 1902 have been added. The large number of statutory citations (some nine
thousand in all) made any further collation of the new numbering impracticable ; and
the examination of the session laws, to date of printing, made it reasonably certain that
the legislative changes would all be x-epresented, under one or another form of citation :
Jurisdiction.
Title and Date of Compilation Used.
D^te of Latest
Session Laws
Examined.
Knoland
1903
Canada :
Revised Statutes 1886
■ 1902
1903
I^anitoba ....
Revised Statutes 1902
1903
1903
Newfoundland . . .
Northwest T'etritories
Cousolidated Statutes 1892
1903
Consolidated Ordinances 1898
Revised Statutes 1900 ....
1903
Nova Scotia , . ,
1903
Revised Statutes 1897
1903
1
1902
United States : 2
Code 1897
1901
Alaska
Carter's Laws of Alaska 1900
(U. S. St. 1900,
March
1903
Revised Statutes 1887 ; Penal C
Sandels and Hill's Digest of Sta
Codes 1872 ; Deering's Supplen
edition of 1 901 '
ode 1887 . .
1903
Arkansas ....
California ....
tntes 1894 ....
lents 1889, Pomeroy's
1903
1902
Colorado .....
Mills' Annotated Statutes 1891,
Code of Civil Procedure 1 896
Abert and Lovejoy's Compiled
1901 (U. S. St. 1901, c. 854) .
Supplement 1896, and
1902
Columbia {District) ,
Statutes 1894
; Code
1903
1903
Revised Statutes 1893
1903
^ There being no compilation here, and the Evidence Act of 1889 having codified most of the
rules, no complete search was made for statutes prior to 1889, except that those of 1873 and 1887,
dealing with evidence, were collated with that of 1 889.
' The Legislatures in most States meet biennially, so that the laws of 1902 were in such cases
sometimes the latest. In Alabama the laws of 1903 had not come to hand in January, 1904.
' A note on the validity of the Commission's amendments of 1901 wiU be found in § 488.
xix
LIST OF COMPILATIOXS CONSULTED.
Jurisdiction.
Title and Date of Compilation Used.
Date of Latest
Session Laws
Examined.
United States :
Florida . . . .
Georgia . . . .
Hawaii . . . .
Idaho
Illinois . . . .
Indiana . . . .
Indian Territory.^
Iowa
Kansas . . . .
Kentucky. , , .
Louisiana . . .
Maine . . .
Maryland
Massachusetts
Michigan . .
Minnesota
Mississippi .
Missouri . .
Montana . .
Nebraska
Nevada . .
New Hampshire
New Jersey .
New Mexico
New York .
North Carolina
North Dakota
Ohio . . .
Oklahoma
Oregon . .
Pennsylvania
Philippine Islands.
Porto Rico?
Rhode Island
South Carolina
South Dakota
Tennessee
Texas . . .
United States
Utah . . .
Vermont . .
Virginia , .
Washington .
West Virginia
Wisconsin .
Wyoming
Revised Statutes 1892
Code 1895; Van Epps' Supplement 1900 . .
Penal Laws 1897 ; Revised Civil Laws 1897 .
Revised Statutes 1887 ; Constitution 1899 . .
Revised Statutes 1874, Kurd's edition of 1898
Thornton's Revised Statutes 1897 . . . .
Ebersole's Annotated Code 1 897
Webb's General Statutes 1897
Carroll's Statutes 1899, and Codes of Civil and Crim-
inal Procedure 1895, edition of 1900
Saunders' Revised Civil Code 1 888 ; Garland's Re-
vised Code of Practice 1894 and Supplement 1900;
Wolff's Revised Laws 1897 ; Constitution 1898 . .
Public Statutes 1883, Supplement 1895
Poe's Public General Laws 1888; Supplement 1900 .
Public Statutes 1882; Revised Laws 1902 . . . .
Miller's Compiled Laws 1897
Wenzell, Lane, and Tiffany's General Statutes 1894 .
Thompson, Dillard, and Campbell's Annotated Code
1892
Revised Statutes 1899
Sanders' Codes and Statutes 1895 . . ....
Brown and Whefelet's Compiled Statutes 1 899 . . .
Baily and Hammond's General Statutes 1885 . . .
Public Statutes 1891
General Statutes 1896
Compiled Laws 1897
Birdseye's Revised Statutes 1896
Code 1883 ; Long and Lawrence's Amendments 1897 .
Revised Codes 1895
Bates' Annotated Revised Statutes 1898
Statutes 1893
Hill's Codes and General Laws 1892
Pepper and Lewis' Digest 1896
General Laws 1896
Revised Statutes 1893; Code 1902
Grantham's Statutes 1899
Shannon's Annotated Code 1896
Revised Civil Statutes 1895; Penal Code 1895; Code
of Criminal Procedure 1895
Revised Statutes 1878, Supplements 1891, 1895 . .
Revised Statutes 1898
Statutes 1894
Code 1897, Supplement 1898
BaUinger's Annotated Codes and Statutes 1897 . . .
Code 1891, third edition
Sanborn and Berrymau's Statutes 1898
Revised Statutes 1887
1903
1903
1901
1903
1903
1903
1902
1903
1902
1902
1903
1902
1903
1903
1903
1902
1903
1903
1903
1903
1903
1903
1903
1903
1903
1903
1902
1903
1903
1903
1903
1903
1903
1903
1903
1903
1903
1902
1903
1903
1903
1903
1903
' Governed by Federal and Arkansas statutes, and hy Indian law, not here considered.
* These laws are not here considered, being chiefly of Spanish origin.
XX
LIST OF LATEST EEPOETS COi^SULTED.
II. Reports.
Most of the citations of decisions rendered since 1893 have been taken from the
reports published in the National Reporter System, as they appeared in weekly numbers.
For all decisions reported since the beginning of that System, the duplicate citation has
been added, to include both the Official Report and the National Reporter, — most of
these duplicate citations being furnished through the courtesy of the West Publishing
Company, the remainder added by the author from the Blue Books. As the printing
progressed, the duplicate citations of the Official Reports appearing from time to time
were obtained from the Thii-d Labels and inserted in the proof. Thus it happens that
in the earlier parts of the book most of the citations of decisions oi 1903 are to the
National Reporters only.
The printing of these present volumes began in January, 1904, and occupied a full year;
it was therefore desirable to set a definite point of time for the ending of citations (instead
of inserting current late cases in the latter portions of the book only), in order that those
who use the book may know where to begin in bringing the later citations down to the
date of their consultation. The point taken was therefore that volume of the different
National Reporters which ended nearest to January, 1904 ; this ranged (dating by the
weekly issues) between November, 1903, and March, 1904. Substantially, then, the cita^
tions come down to the beginning of 1904. The latest volumes of Reporters consulted
were as follows :
Atlantic Reporter, vol. 55.
Federal Reporter, vol. 125.
Northeastern Reporter, vol. 68.
Northwestern Reporter, vol. 95.
Pacific Reporter, vol. 73.
Southern Reporter, vol. 35.
Southeastern Reporter, vol. 45.
Southwestern Reporter, vol. 76.
Supreme Court Reporter, vol. 23.
and of Official Reports not covered by the National Reporter System :
District of Columbia Appeals, vol. 21. | Hawaii, vol. 13.
The latest volumes of English and Canadian Reports consulted were as follows :
England, Law Reports 1903.
Canada (Dominion), vol. 32.
British Columbia, vol. 10, pt.
Manitoba, vol. 12.
New Brunswick, vol. 34.
Newfoundland, vol. 5.
Northwest Territories, vol. 5, pts. 1, 2.
Nova Scotia, vol. 35.
Ontario, Law Reports, vol. 5.
Prince Edward Island, vol. 2.
The reports of the Appellate (intermediate) Courts in Colorado, Illinois, Indiana, Kan-
sas, New York (Supreme Court), and Texas, have not been cited, except on interesting
matters for which there is scanty authority ; partly because their rulings are not final,
and partly because in some jurisdictions they are expressly made not binding as prece-
dents. The trial rulings of Federal District Courts since the creation of the Circuit Court
of Appeals have also been left unnoticed to a similar extent.
III. Citation op this Treatise.
Citations of other parts of this treatise are made herein by number of section (§) and
number of note. The notes are numbered continuously within each section.
Between the chapters, and between main subdivisions of each chapter, there are from
one to five (occasionally more) numbers omitted ; so that the series of numbers does not
read consecutively at those points. This is not an inadvertence, nor a sign of materials
omitted ; but merely a mechanical expedient which became indispensable in working upon
a bulky manuscript. In the course of inserting the cross-references (some ten thousand),
a great number of the references obviously had to be made, during the progress of the
work, to portions of the text yet unwritten ; and it therefore became necessary to give to
these topics reference-numbers beforehand. In order to allow for occasional additions of
topics in the course of the work, these blanks were left in the series. A reference to the
California Codes will show that this expedient is not without precedent.
xxi
EVIDENCE
IN
TRIALS AT COMMON LAW.
BOOK I: ADMISSIBILITY. — PART I: RELEVANCY.
Title II: TESTIMONIAL EVIDENCE.
Sub-title II: TESTIMONIAL IMPEACHMENT.
CHAPTER XXIX.
INTRODUCTORY.
A. General Theokt of Impeachment.
§ 875. Analysis of the Process of Impeach-
ment.
§ 876. Distinction between proving Incor-
rectness of Testimony from Defective Qualifi-
cations and proving the Defective Qualifications
by Conduct and other Circumstances.
§ 877. Distinction between Relevancy and
Auxiliary Policy.
§ 878. Distinction between Cross-examination
and Extrinsic Testimony.
§ 879. Distinction between Circumstances
having Definite Relevancy and Circumstances
having Indefinite Relevancy.
§ 880. Distinction between Impeaching Evi-
dence and Rehabilitating or Supporting Evi-
dence.
§ 881. Order of Topics.
B. Persons Impeachable.
1. Impeachment of Hearsay Testimony.
§ 884. General Principle.
§ 88.5. Dying Declarations.
§ 886. Attesting Will-Witness.
§ 887. Statements of Facts against Interest,
and other Hearsay Statements.
§ 888. Absent Witness' Testimony, admitted
to avoid Continuance.
2. Impeachment of Defendant as
Witness.
§ 889. Distinction between Becoming a Wit-
ness and 'Waiving a Witness' Privilege.
§ 890. Defendant impeachable as an Ordinary
Witness.
§ 891. Same: Application of the Rule.
§ 892. Defendant not Testifying but making
"Statement."
3. Impeachment of an Impeaching
■Witness.
§894.
cretion.
Limitation in the Trial Court's Dis-
4. Impeachment of One's O'wn Witness.
§ 896. History of the Rule.
§ 897. First Reason : The Party is Bound by
his Witness' Statements.
§ 898. Second Eeason : The Party Guarantees
his Witness' General Credibility.
§ 899. Third Reason : The Party ought not to
have the Means to Coerce his Witness.
§ 900. Bad Moral Character.
§ 901. Bias, Interest, or Corruption.
§902. Prior Self-Contradictions ; (1) Theory.
§ 903. Same ; (2) Practical Reasons Pro and
Can.
§ 904. Same : (3) Various Forms of Rule
adopted by different Courts.
§ 905. Same : (4) State of the Law in Various
Jurisdictions.
§ 906. Same ; (5) Rules for Prior Warning to
the Witness, etc. ; Rule for Party's Admission.
§ 907. Contradiction by other Witnesses, not
forbidden.
§ 908. Same ; Contradiction as involving Im-
peachment.
§ 909. Who is One's Own Witness ; General
Principle.
§ 910. Same: (1) A calls a Witness; may A
impeach ? SubpcEua, Oath, and Interrogation.
§ 911. Same: (2) A calls a Witness, then B
calls him ; may B impeach ? (a) vima voce. Tes-
timony.
§912. Same: (6) Depositions.
VOL. II. — 1
1003
§ 875
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
§ 913. Same: (3) A calls a "Witness, then B
calls him ; may A impeach ? (a) viva voce Tes-
timony ; (6) Depositions.
§914. Same: (4) Making a Witness One's
Own by Cross-examination ; (a) Impeachment.
§ 915. Same : (6) Leading Questions.
§ 916. Same : (5) Calling the Other Party as
a Witness ; Co-defendants.
§917. Same: (6) Necessary Witnesses;
(a) Attesting Will-Witness.
§ 918. Same : (*) Prosecution's Witness in a
Criminal Case; Witness called by the Jndge.
A. General Theory of Impeachment.
§ 875. Analysis of the Process of. Impeachment. The process of impeach-
ment, or discrediting, is fundamentally one of Circumstantial Eelevancy.
The nature of the probative inference and the conditions of its use rest on
principles of the same sort as those already observed for Circumstantial
Eelevancy {ante, §§ 38-464). What is the process ? The inference is (for
example) that, because the witness X is of an untrustworthy disposition,
therefore he is probably not telling the truth on the stand ; or, because he
has hostile feelings towards the opponent, therefore he is probably not telling
the truth ; or, because he is a cousin of the plaintifP, therefore he probably
has hostile feelings towards the defendant, and therefore he is probably not
telling the truth ; and so on. This process is materially different from that
by which is originally determined his competency as a witness (ante, §§ 475—
867). There the argument was that because an assertion is made by a per-
son having certain qualifications, therefore the subject of the assertion is
probably true in fact ; and the rules in that department of evidence deal with
the conditions (i. e. testimonial qualifications) which must exist before the
law will allow that inference to be offered. Thus the drawing of an infer-
ence from the making of any human assertion is the process there dealt with,
the evidence being Testimonial Evidence ; while here the object is to draw
inferences from any other matter than the making of an assertion, i. e. from
Circumstantial Evidence (the subject of Title I, ante). Here, as in the topics
dealt with in Title I, the inferences are from character, from conduct, and
from sundry similar circumstances. Theoretically, then, the probative place
of the present material is with Title I ; practically, it is more easily examined
and understood in this place.
In the various topics of evidence here concerned, several distinctions
occur, running through the material more or less steadily and clearly ; and
these it is worth while to note at the outset.
§ 876. Distinction between proving Incorrectness of Testimony from De-
fective Qualifications, and proving the Defective Qualifications by other
Circumstances. (1) It has been seen, in dealing with Testimonial Evidence,
that an assertion may be used as the basis of inference only when it is
attended by certain minimum qualifications in the person making it, i. e.
first, the Capacity to Observe, Recollect, and Narrate — either Organic, Ex-
periBntial, or Emotional — , and, secondly. Actual Observation, EecoUection,
and Eelation (ante, §§ 475-478). Now, although the witness whose asser-
tion has been thus admitted may possess in the minimum requisite degree
these qualifications, nevertheless above this minimum degree there is a count-
1004
§§ 875-918] GENERAL THEORY. § 876
less variety in the possible extent and strength of these qualifications, and
the greater or less extent of them may throw light on the probability of his
assertion's correctness. Thus, he may possess the minimum degree of sanity
required to make the assertion admissible, or the minimum degree of oppor-
tunity of observation ; and yet he may fall so far short of possessing such
sanity or such opportunity of observation as he might well have had, and
this fact, if shown, will detract from the probability of his assertion's correct-
ness. In the first place, then, wherever a quality or condition is so important
that its possession in a minimum degree is essential to the use of his asser-
tion at all, it is obvious that its possession in a degree somewhat greater, but
still less than perfect, may be used to argue against the probable correctness
of his assertion ; and thus a defect in any of the above testimonial qualifica-
tions may be employed in discrediting. But, in the second place, there are a
few other qualities which, though not required as essential prerequisites to
the use of the assertion at all, nevertheless may be used to cast doubt on its
correctness when admitted. These are two. Moral Character and Emotional
Prejudice. These, at a former stage of the law, were indeed in some respects
regarded as prerequisites ; i. e. a person totally lacking in moral character
(as indicated by Infamy, or conviction of a crime), and a person not in an
emotional attitude of non-partisanship (as indicated by Interest in the cause),
was excluded absolutely {ante, §§ 519, 576). To-day the lack of these quali-
ties is not regarded of such consequence as to exclude the assertion ; but
they still are regarded as having probative force against the correctness
of the assertion. Thus, in discrediting an assertion, we may appeal, in
searching for a basis of inference, not only to defects in specified qualities
whose minimum existence is required for admitting the assertion, but also
to the qualities of moral character and of emotional prejudice.
(2) These, then, are the starting-points of inference. We may argue that
the witness' assertion may not be correct because the assertor has some
defect either in Capacity — Organic or Experiential — to observe, recollect,
or narrate, or in Opportunity of Actual Observation, EecoUection, or Narra-
tion ; and, additionally, we may argue from his moral character — a species of
Organic Incapacity — and from his Emotional Incapacity. Now if we could
adequately present these defects, or defective qualities, to the tribunal directly
and abstractly, nothing further would be done or needed ; we should ask the
tribunal to infer from these defective qualities the probability of the asser-
tion's incorrectness, and the only questions that would arise would involve
the conditions under which this single inference would be allowed in the
case of each quality. But it is obvious that in most cases it will be either
impossible, or difiicult, or insufficient, to present this defective quality to the
tribunal directly or abstractly. In other words, the defective quality may in
its turn need to be evidenced by other circumstances ; and, instead of a single
inference — from the defective quality to the assertion's incorrectness ^,
we shall have to resort to two inferences, i. e. from some other circum-
stance to the existence of the defective quality, and from that to our original
1005
§ 876 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
objective, the assertion's incorrectness. For example, if it is desired to argue
from the witness' emotional prejudice or hostility to the opponent, it will
rarely be possible to present that quality abstractly and directly ; we must
resort to another inference in order to evidence that very hostility; for
example, it will be shown that a pecuniary loss to the witness will attend
the victory of the opponent, or that he has quarrelled with the opponent, or
that he is nearly related to the party he testifies for. Again, while it is
commonly possible to present his defective moral character to the tribunal
directly and abstractly — i. e. by reputation of that character, or by personal
knowledge — , yet this is not the only or the sufficient way of getting at the
character; a resort to a circumstantial inference may be desirable, — for
example, the inference from his specific misconduct to his bad character;
and then a second inference is required from the character to the assertion's
incorrectness.
Now the practical basis of these two classes of inferences is wholly dis-
tinct, as it has already been seen to be {ante, § 53) in dealing with Character
as evidence of an Act done, and Conduct as evidence of the Character. The
questions of relevancy — i. e. the propriety of the inference — being here
different, the rules prescribing the admission of the two sorts of inference
must be separately treated. This is one of the fundamental distinctions
affecting the arrangement of the subject, and is observed in the separation of
Topics II and III (§§ 945-994,^080 from Topic I (§§ 920-942).
§ 877. Distinction between Relevancy and Auxiliary Policy. It has
already been seen (ante, § 42), that the exclusion of circumstantial evidence
may be expressed by a single rule of thumb, and yet the rule may rest, not
merely on some principle of Eelevancy (or Probative Value), but also or
solely on some principle other than Eelevancy, i. e. on Auxiliary Policy.
Thus, the occurrence of a similar injury to another person may be excluded
because it does not satisfy a principle of Eelevancy, i. e. the conditions of the
injury are not substantially similar; while, again, the same evidence, though
satisfying this principle of Eelevancy, may still be excluded on the ground
of surprise and confusion of issues, i. e. Auxiliary Policy {ante, § 443).
Again, a person's bad character is concededly admissible, so far as Eelevancy
is concerned, to indicate his probable doing of a bad act, and yet, where the
person is a defendant in a criminal case, an auxiliary policy of avoiding
undue prejudice prevents the prosecution from resorting to it except in
rebuttal ; while, where this policy does not apply — as in the case of the
prosecutrix on a rape charge, or of a deceased person alleged to be the
aggressor in an affray, — the evidence is admitted when it satisfies the re-
quirements of Eelevancy alone {ante, §§ 55-68). In short, while the prin-
ciples of Eelevancy form a homogeneous and independent body of doctrine,
and the principles of Auxiliary Policy form a wholly separate body of doc-
trine {post, §§ 1845, 1868) they may stdl have to be applied to the same
piece of evidence in such a way that a single rule of thumb is often created
as the net resultant of both principles ; in the exposition of the subject it is
1006
§§ 875-918] GENEEAL THEOEY. § 877
practically impossible to separate the treatment of the double principle lying
behind the concrete rule. But this practical necessity, arising from con-
venience of treatment, need not mislead us to forget the distinctness of the
two sets of principles ; for, without a full understanding of the principles,
the rules themselves can never be understood.
In the present subject, then, there occurs this same doubleness of prin-
ciple. Each bit of circumstantial evidence offered to discredit a witness
must first pass the gauntlet of the Kelevancy principles ; but it may also be
obnoxious to some principle of Auxiliary Policy which may after all exclude
it. In dealing with a given sort of discrediting evidence, the principle of its
Eelevancy has always first to be considered ; and then the bearing must be
examined of any principle of Auxiliary Policy which may apply. The evi-
dence may satisfy the test of the first, but not of the second ; or it may
satisfy both ; or there may be none of the second sort that is applicable.
A few instances will serve to illustrate concretely in advance the workings
of the two sorts of doctrines. (1) The witness' Character, as indicating
incorrectness of assertion, is relevant (on the general principle of § 59,
ante), when it involves the trait connected with the sort of act to be
proved ; a question of Eelevancy here, then, is whether character for truth-
fulness only, or general character, may be used. This being determined,
the matter of Auxiliary Policy presents itself ; and the judges are found
pointing out that the reason of this sort that effects exclusion of char-
acter as against a defendant in a criminal case does not apply here at
all, i. e. the reason of unfair prejudice, because the witness is not on
trial and cannot be condemned; while on the other hand a new prin-
ciple of Auxiliary Policy here comes into play, i. e. the principle that one
cannot attack the character of his own witness. (2) Again, in attempting
to evidence this character by circumstantial evidence, it has already been
seen (ante, § 194), that evidence of specific acts of misconduct, while it is
relevant enough, is excluded as against a defendant in a criminal case
because of two reasons, — first, the undue prejudice which might condemn
him for past acts though innocent of the one charged ; secondly, the unfair
surprise and the impossibility of being prepared to disprove the misconduct
alleged. Now, for witnesses, the first of these has no application, because
the witness is not on trial ; the second does apply, yet it may be obviated
if we merely forbid the use of extrinsic testimony and confine the opponent
to proving it by evidence extracted from the witness himself, i. e. by cross-
examination. This being settled, certain questions of Relevancy still remain
open for evidence thus extracted ; for example, whether the mere arrest of a
witness on a specific charge is relevant to show bad character. Thus, the
net result of the rules for showing bad character by particular acts of mis-
conduct depends on the combined influence of certain principles of Eele-
vancy and certain principles of Auxiliary Policy taken together. (3) Again,
to show the witness' Capacity for Mistake we may offer as relevant a prior
contradictory statement of his. If it is really contradictory it is relevant.
1007
§ 877 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
But it must also pass the tests of Auxiliary Policy ; in the first place, to
avoid multiplicity of issues, such evidence must be excluded if it deals
with a collateral matter; in the next place, to avoid surprise and furnish
a fair opportunity for explanation or denial, the witness must first be asked
whether he made such a statement. These tests being satisfied, and the
relevancy appearing, the evidence may be used. (4) Again, to show Bias, we
ofifer the expressions of the witness indicating a hostile feeling ; by the Rele-
vancy principle of Counter-explanation (ante, § 34), he may offer facts which
explaiu away his expression and destroy its force as indicating hostility;
here a question of relevancy may arise, — for example, whether the justness
of his cause of anger is in any sense an explanation, as of course it may not
be; or a question of Auxiliary Policy may arise — ,for example, whether it is
profitable to take up much time by such explanations, or whether the details
of the quarrel, though truly explanatory, may not cause unfair prejudice to
the opposing side.
Thus, throughout the whole subject, here as well as for Circumstantial
Evidence at large (Title I), the principles of Eelevancy and the principles of
Auxiliary Policy, while wholly distinct in their nature, are yet so inextri-
cably united in the concrete rules of exclusion that they must be expounded
together in connection with each sort of evidence.
§ 878. Distinotion between Cross-examination and Extrinsic Testimony.
The particular principles of Auxiliary Policy that most commonly find use
in the present class of evidence are those which seek to avoid unfair surprise
and confusion of issues (post, §§ 1845, 1863), and these purposes are usually
attainable by the simple expedient of cutting off extrinsic testimony, i.e.
the calling of additional witnesses. The effect, therefore, of the constant
applicability of this expedient is to produce a sharp distinction, in the use
of discrediting evidence, between the extraction of this evidence by cross-
examination and the presentation of it by extrinsic testimony. The defective
general qualities — such as Moral Character, Insanity, and the like — can
usually not be got at through the witness himself, and here the above dis-
tinction plays little part ; but, in evidencing these qualities by specific acts
of conduct, the witness himself is often equally as satisfactory for the pur-
pose as additional witnesses would be, and hence the restriction of the im-
peacher to the extraction of the evidence by cross-examination may be no
real hardship to him, while it may satisfy the doctrines of Auxiliary Policy.
Hence, in that field, we find much of the evidence subject constantly to such
a restriction ; and the concrete shape of the rule of thumb then becomes
this, that such-and-such impeaching evidence may be offered through the
medium of cross-examination, i. e. from the mouth of the witness himself,
but not by the production of other witnesses. It is thus worth while prac-
tically to group some of the kinds of evidence according as they are ineligible,
partly or wholly, to be offered through extrinsic testimony. Topics I and II
(post, §§ 920-969) are thus separated from the ensuing Topics.
Two things must be kept in mind about such rules. (1) The question of
1008
§§ 875-918] GENERAL THEOKY. § 878
Eelevancy is not touched by them. The restriction is based wholly on some
doctrine of Auxiliary Policy. It prescribes that such-and-such evidence, */
relevant, is to come only from a specific source. Its relevancy is still open
to question. For example, in evidencing bad character, we may not call a
new witness to impeach the former one by testifying to some misconduct of
his ; we are restricted to the questioning of the original witness ; but, while
conducting such questioning, we are still confined to facts which are relevant
for the purpose, and we may at any moment be told that a given fact about
which we are cross-examining — for example, former arrest on some heinous
charge — is not relevant.
(2) Thus there is no virtue in the cross-examination as such with reference
to the admissibility of the alleged fact. The notion is not that because we
are cross-examining, therefore we may get admission for this or that fact ;
for the fact cannot go in if it is not relevant ; but the notion is that because
we are not using extrinsic testimony, the fact if relevant may go in. It is im-
portant to observe this, because the ordinary discussion of the rule of thumb
leads often to a notion (for which the judges indeed are not responsible) that
cross-examination has some mysterious virtue of its own which imparts merit
to facts otherwise worthless. A loose belief doubtless obtains in some minds
that almost anything may go in on cross-examination (saving the discretion
of the Court). Conceptions of this sort should be radically abandoned.
Cross-examination is no universal solvent for reducing everything to admis-
sibility. The notion is not only unsound, but misleading ; for several sorts
of evidence — for example, facts evidencing Bias — are equally presentable
through extrinsic testimony and through cross-examination, and a given fact
may thus be in either way admissible. The real significance of the rules
that involve a distinction between cross-examination and extrinsic testimony
is seen if we note that the rules come about, not by enlarging the use of the
former, but by cutting off the use of the latter. It is not that the law of
impeachment loves cross-examination more ; but that it loves extrinsic testis
mony less. Conceive the relevant facts as carried before the tribunal like
chattels, in two kinds of vehicles, and understand the law to forbid the use
of one of the kinds of vehicles for certain sorts of facts ; the result being
that the other kind of vehicle has thereby a far greater vogue, but simply
because the use of the first kind is forbidden ; and the tenor of the prohibi-
tion does not tell us what classes of facts may be carried at all, but merely
what kinds of vehicles may not be used for carrying certain classes of facts.
It must be added that while these facts have usually to be carried to the
tribunal (to continue the metaphor) in one or the other of these two kinds
of vehicles, yet occasionally the facts do not have to be carried there in
either, but are already (so to speak) found awaiting us there. That is to
say, the demeanor of the witness on the stand is a third source of obtaining
these facts. Incoherence of statement, hesitating manner, guilty appearance,
evasive replies, and the like, contain within themselves many of the salient
facts affecting the witness' credibility {post, § 947). These stand outside of
1009
§ 878 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
the broad distinction between cross-examination and extrinsic testimony, and
are not affected by this principle of Auxiliary Policy.
§ 879. Distinction between Circumstances having Definite Relevancy and
Circumstances having Indefinite Relevancy. The preceding distinction be-
tween the limited use of extrinsic testimony and the free use of cross-
examination is intimately connected in application with another distinction
involving the probative effect of circumstances offered in evidence. For
instance, we find that circumstances of relationship, quarrels, or pecuniary
interest, may be offered equally by extrinsic testimony as by cross-examina-
tion (post, § 948) ; yet the discrediting circumstance of an erroneous asser-
tion or a lie may be offered through extrinsic testimony on one condition
only, namely, that the subject of the error or the lie be material to the case,
and not "collateral" (post, §§ 1001-1003). That the principle of Auxiliary
Policy excludes extrinsic testimony in the latter case and not in the former
seems to depend partly on a difference in the probative nature of the evi-
dence. In the former case, the probative force is definite and specific ; in
the latter case it is indefinite and ambiguous, although positive. In the
former case, from the circumstance of (for example) relationship to a party,
the inference is, definitely and solely, that a hostile feeling exists towards the
opponent. In the latter case, the inference is that in some way or other
the witness possesses a capacity or an inclination to an incorrect assertion.
Yet, while the plain effect of the evidence is to indicate a defective testi-
monial quality of some sort, there is no definite indication of the specific
quality that is defective. The mind recognizes and accepts the force of the
inference that, because he was mistaken on one point, be may be mistaken
on another ; but it does not definitely infer a specific defective quality.
This being so, it is easy to see why the principle of Auxiliary Policy should
be applied with greater readiness and more strictness to evidence of such
indefinite and ambiguous effect and such prolific scope. We cut off relevant
evidence, — evidence that is useful enough if we can get at it economically ;
but, comparing the quantity of it that might be offered, if there were no
limit, with the indefiniteness of its objective point when received, we find
that it would be obtained at a cost by no means economical, and that it is
only worth receiving when it comes through the simple and limited source
of cross-examination or when it deals with a fact which could have been
shown in any case, i.e. is not collateral.
The result of this rough distinction between circumstances having a defi-
nite and strong probative meaning, and circumstances having an indefinite
or a weak probative meaning, is that, when we are attempting to prove these
defective qualities by circumstantial evidence, we find again the convenience
of the grouping already noticed, namely, on the one hand, evidence that
can be offered equally through extrinsic testimony and through cross-exami-
nation, and, on the other hand, evidence that cannot be offered at all through
extrinsic testimony or can be offered only to a limited extent, according to
the applicability of the above reasons. Such a grouping would be based on
1010
§§ 875-918] GENERAL THEORY. § 881
the essential features of the evidence and the policy applicable to it, and is
represented by the separation of Topics IV and V (post, §§ 1000-1046) from
the preceding Topics I and II.
§ 880. Distinction between Impeaching Evidence and Rehabilitating or
Supporting Evidence. It has already been seen (ante, § 34) that, in the very
nature of the process of Inductive reasoning, while the proponent of evidence
offers it as leading to a desired conclusion, it is always open to the opponent
to show that the inference desired to be drawn is not the correct or more
probable one, and that some other inference than the one desired is equally
or more probable, i. e. to show that some other explanation exists and thus
to explain away the force of the evidential circumstance. This counter-
process of Explanation, inherent in the very nature of reasoning, is equally
applicable, so far as Eelevancy is concerned, in the use of circumstantial
evidence to discredit a witness. Thus, in jurisdictions which allow general
bad moral character to be used to indicate the probability of the witness'
speaking untruthfully, the party offering the witness is usually allowed, on
cross-examining the impeaching witness, to show that the other has kept his
character for truth-telling, i. e. to explain away the desired inference. Again,
in the single case in which by extrinsic testimony particular misconduct may
be offered to show bad character, namely, conviction of a crime, the question
arises whether it may be shown in explanation that the witness was really
innocent ; though here the resulting rule will be affected by the principle of
Auxiliary Policy directed at preventing multiplicity of issues. Again, when
a prior contradictory statement is offered to discredit, an explanation may be
attempted by showing that the witness has at other times made statements
precisely similar to that made on the stand, and the interesting question
arises whether such evidence is relevant as affording any real explanation or
destroying the force of the impeaching evidence ; the generally accepted solu-
tion in modern times being that such similar statements do not accomplish
any real explaining-away of a prior contradictory statement, but that they
do on certain conditions help to explain away any evidence tending to show
corruption, bias, or interest. Under each class of discrediting evidence, then,
there may be available ways of explaining away by other evidence the force
of the discrediting circumstance. But for convenience' sake these various
classes of rehabilitating evidence must be considered together (post, §§ 1100-
1144).
§ 881. Order of Topics. The foregoing considerations necessarily affect
the order of topics ; for the rules must be so treated as best to distinguish
the principles behind them. Few of the rules are difficult to comprehend
or obscure in their bearing; but much latitude of opinion is possible as
to the most satisfactory order of treatment. The following order is most
practicable :
First, as preliminary to the whole subject of impeachment, must be con-
sidered what Persons as witnesses are to be Impeachable. In the process
of discrediting a witness, the first inference (ante, § 876) must always be from
1011
§ 881 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
some defective testimonial quality to the assertion's incorrectness. The dif-
ferent possible testimonial qiialities are thus to be passed in review (Topic I),
— Moral Character, Mental Capacity (Insanity, Intoxication), Emotional Ca-
pacity (Bias, Interest, Corruption), and Experiential Capacity. These discred-
iting deficiencies become in their turn the object of circumstantial proof, —
first (Topic II), such sorts of evidence as are not forbidden to be offered by
extrinsic testimony, — circumstances indicating Interest, Bias, and Corrup-
tion ; following these, all such evidence as is more or less liable to the rule
excluding extrmsic testimony, — (Topic III) Particular Instances of Conduct
to show Character, — the principles here involved having an influence over
the whole group ; next, similar facts to show Experiential Defects and the
like ; (Topic IV) Specific Errors of assertion, used indefinitely to show some
general capacity for mistake or misstatement ; (Topic V) Prior Self -Contra-
dictions, used indefinitely for a similar purpose ; and, finally, (Topic VI)
Admissions, i.e. prior self-contradictions of parties.
£. Persons Impeachable.
1. Impeachment of Hearsay Testimony.
§ 884. General Principle. When the statement of a person not in court is
offered as evidence of the fact stated, the real ground of objection is that it
has not been subjected to the test of trustworthiness which the law regards
as desirable before listening to any testimonial evidence, namely, the test of
cross-examination. This is the Hearsay rule (post, § 1362). Yet under cer-
tain conditions such statements may exceptionally be received. Now the
statement, if thus received, stands testimonially as the equivalent of a state-
ment made on the stand and subject to cross-examination ; i. e. in both cases
there is received the statement (for example) of A that B struck him with a
knife, — in the one case, A being on the stand and untested when the state-
ment is made, and in the other case, A being not on the stand and not tested
when the statement is made. In both cases the statement is nothing more
nor less than testimonial evidence, the two being precisely equivalent in
respect to their nature as testimony.
This being so, the untested statement — i. e. the hearsay statement — must
come from a person qualified to speak on the matter in question, precisely as
ordinary testimony must; the rules of Testimonial Qualifications (as noted
post, §■■ 1424) have constant application to such testimonial statements ad-
mitted under the Hearsay exceptions. Now, in the same way, the statements
being testimonial in their nature, it is right to subject them, when admitted,
to impeachment in the appropriate ways, as it was to require the usual testi-
monial qualifications in advance ; and that is what we find the law doing.
For reasons of convenience in exposition, however, the rules of testimonial
qualifications and of testimonial impeachment are better considered in con-
nection with the various kinds of hearsay statements admitted under the
exceptions to the Hearsay rule. It is enough here to note the general
features of the process.
1012
§§875-918] PEESONS IMPEACHABLE. §889
§885. Dying Declarations. Here the commonest methods of impeachment
are 'those arising from the circumstances of the occasion, when the mental
powers are not in a condition to promise the best results in the way of
Testimonial Observation, Eecollection, and Narration ; these modes of im-
peachment are proper {post, § 1446). The use of Prior Self-Contradictions,
however, depends so intimately on the general principle of that subject that
it is here dealt with under that head {jpost, § 1033).
§ 886. Attesting 'Will-'Witness. The proof of an attesting will-witness' sig-
nature involves virtually the use of his testimony according to the tenor of
the attestation-ckuse (pos^, § 1505); and the modern tendency to ignore this
truth has led sometimes to an ignoring of its corollary, namely, that a de-
ceased attesting will-witness is open to impeachment like any other hearsay
witness.!
§ 887. Statements of Facts against Interest, and other Hearsay Statements.
The other kinds of statements admissible under exceptions to the Hearsay
rule are less commonly subjected to impeachment, but the principle is recog- i
nized as equally applicable. Accordingly, it is permissible to impeach state-
ments of facts against interest {post, § 1471), statements of facts of family
history {post, § 1496), regular entries in the course of business {post, § 1554),
and other kinds of statements ; though the attempt thus to apply the princi-
ple is rarely made.
§ 888. Absent Witness' Testimony admitted to avoid Continuance. By stat-
ute in almost every jurisdiction the authority is given to deny a motion for a
continuance (or postponement of the trial), when requested on the ground of
an expected witness' absence, provided the opposing party consents to admit
the testimony as if the witness were present, or (as is more usual in criminal
cases) to admit the truth of the facts that would be testified to by the wit-
ness. When a witness' testimony is admitted in this manner, may it be
impeached ? On principle, it may be, if the assent was of the first sort men-
tioned ; but not if the assent was to the truth of the facts testified to. Since
the testimony is received by virtue of a Judicial Admission, the applica-
tion of the present principle can best be considered under that head {post,
§ 2595).
2. Impeachment of Defendant as Witness.
Distinction between Becoming a Witness and Waiving a Witness'
Privilege. When, under the modem statutes removing common-law disquali-
fications, a defendant in a criminal case takes the stand in his own behalf,
two entirely distinct questions arise, to one of which the answer is clear and
unanimous, to the other doubtful and inharmonious.
(1) Is his position as a witness so distinct from his position as defendant
that that which would be usable to impeach him as a witness, but not usable
against him as a defendant, may now be used ? In particular, may his bad
^ The application of the impeachment rules witness who is one's own witness may be im-
to this sort of testimony is dealt with under that peached is dealt with post, § 908.
exception (post, § 1514). Whether au attesting
1013
§ 889 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
moral character be shown, — may this character be evidenced by particular
acts, — may his testimony be tested by the sundry other methods applicable to
witnesses ? The argument for the negative is that a fact usable against him as
a witness — for example, former conviction of felony — will not be restricted
by the jury to its legitimate effect, i. e. the effect upon his credibility, but may
also, mainly or subsidiarily, be applied by them for a forbidden purpose, i. e.
to infer his bad character and thus his guilt as a defendant. The argument
for the affirmative is that he is in fact a witness as much as he is in fact a
defendant, that as a witness he may or may not be credible, and that the State
has an overriding interest in ascertaining this ; that, as the defendant has
voluntarily chosen to offer his testimony, it is not unfair to reqiiire him to
submit to the incidental tests of testimony ordinarily applied, and that any
other rule would practically give immunity to defendants to offer false testi-
mony to the jury. The question involved is thus the simple one whether
the requirements of his position as a witness are to be maintained in their
integrity, or whether their incidental infringement on his position as a de-
fendant is to cause them to be sacrificed, and the appeal is to the general
principle {ante, § 13) that evidence admissible for one purpose is not to be
excluded because it would be inadmissible for another purpose.
(2) The second question does not care how the first is settled, i. e. does not
care whether his position as a witness may or may not be treated as wholly
distinct from his position as a defendant for the purpose of offering any evi-
dence that would be admissible against him as a witness. The second ques-
tion rests on a different matter of policy, namely, of Privilege. Since a witness
has the privilege of declining to answer questions tending to criminate him,
and since this privilege may be waived by a witness, either expressly or by
implication, is the principle determining the existence of a waiver the same
for an ordinary witness and for a defendant-witness, or is there anything in
the position of the latter which demands a different test for the existence of
a waiver ? It will be seen that the question here involved is wholly different
from the preceding one, and js distinctly a question of the nature of Privilege
and of its Waiver ; while practically it covers a peculiar kind of evidence, i. e.
facts tending to show guilt, and not facts affecting credibility.
There is, however, one circumstance, superficial only, which has tended to
loose thinking on the subject, namely, the circumstance that much of the evi-
dence of both sorts (i. e. to impeach credibility and to show guilt) is asked for
on cross-examination ; and thus we sometimes find the question " May a de-
fendant on the witness-stand be cross-examined like any other witness ? " put
and discussed as though only one question, instead of two wholly distinct
ones, were involved. No correct solution can ever be reached in that way.
Whether facts impeaching credibility may be offered, either extrinsically
or through cross-examination, is one question; whether a criminating fact,
otherwise privileged, may be asked and compelled from the defendant him-
self, is the other and wholly distinct question. In the first case, the sole
object is to impeach credibility, and the incidental effect on the defendant's
1014
§§ 875-918] PEESONS IMPEACHABLE. § 890
position as such is undesired and forbidden; in the second case, the sole
object is usually to prove guilt, and to affect the defendant as such. The
answer to either question might be in the affirmative or in the negative
without affecting the answer to the other. The first question alone concerns
us here. The second is dealt with under the subject of Privilege {post,
§ 2276).
§ 890. Defendant impeachable as an Ordinary "Witness. Of the arguments
on the first question, there is no hesitation in accepting those of the affirma-
tive. The law is that a defendant taking the stand as a witness may as a
witness be im.peached precisely like any other witness. The rule is enunci-
ated more or less broadly, and with more or less variation of phrasing, in
the different jurisdictions ; but the principle is universally conceded :
1867, Cam. v. Bonner, 97 Mass. 587 ; the witness having been asked whether he had
been in the House of Correction for any crime, Mr. Hudson argued, " that it is a subtlety
beyond the capacity of jurors to discriminate between regarding evidence of a defendant's
previous conviction of crime as affecting only his credibility as a witness, and regarding it
as affecting his character generally, and that therefore such testimony should be excluded .
altogether " ; but the Court held that in becoming a witness he must put up with such
risks.
1874, Buskirk, C. J., in Fielder v. State, 49 Ind. 130: " A defendant who elects to
testify occupies the position of both defendant and witness, and thus he combines in his
person the rights and privileges of both. But while this is true, we do not think it should
result in any change in the law or rules of practice. In his capacity as a witness he is
entitled to the same rights, and is subject to the same rules, as any other witness. In his
character of defendant, he has the same rights, and is entitled to the same protection,
as were possessed and enjoyed by defendants before the passage of the act in question
[enabling defendants to testify]. When we are considering the rights of the appellant
in his character of defendaiit, we lose sight of the fact that he has the right to testify as
a witness; and when his privileges as a witness are called in question, they should be
decided without reference to the fact that he is a defendant also."
1803, Breaux, J., in Slate v. Murphy, 45 La. An. 958, 959, 13 So. 229 : " The defend-
ant, in availing himself of the privilege of testifying in his own behalf, was subject to all
the rules that apply to other witnesses. The accused was not compelled to testify ; the
statute declares that the failure to testify shall not create any presumption against a de-
fendant. Having offered himself as a witness, and having testified, he was called upon to
submit to the same tests which are legally applied to other witnesses. The witness can
decline to answer any question which may tend to charge him as criminal ; moreover,
the Court has the power to protect him against unreasonable or oppressive cross-exami-
nation. These modes of guarding against the abuse possible under the statute are not
in question. . . . The defendant appeared before the Court in the dual capacity of an
accused and that of a witness. As an accused, his character was not subject to attack
unless he opened the question. As a witness, his position was different; his credibility
was subject to attack. ... As a defendant, his character could not be impeached, that
issue not having been opened by him. As a witness, it could be impeached, as the char-
acter of any witness may be subjected to that test. In other words, he may be unworthy
of belief, but this unworthiness is not to be considered in determining whether or not he
is guilty ; while the attack upon the character of an accused is for the purpose of estab-
lishing that his plea is not supported by his attempt at proving character and that he is
guilty. ' ' 1
I- This doctrine is universally conceded. The authorities will be found in the places cited in
the next section.
1015
§ 891 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
§ 891. Same : Application of the Rule. The general principle is not ques-
tioned. But it requires in certain situations to be discriminated, in its
consequences, from other rules :
(1) The prosecution in a criminal case may not offer the accused's bad
moral character except to rebut his offer of good character {ante, § 68), but it
may impeach his witness-character without this restriction. The witness-
character will involve in most jurisdictions the trait of veracity, while the
accused-character will involve the trait appropriate to the crime charged.
Hence (in most jurisdictions) a difference in the kind of character offerable
hy the prosecution}
(2) The accused may at any time offer his own good moral character, for the
trait in question, as evidence that he did not commit the crime (ante, § 56).
But he may not as tvitness offer his good character until it has been attempted
to be impeached by the prosecution (post, § 1104). Hence (except iu those
jurisdictions where general bad character is allowed in impeachment) a
difference as to the time when the accused may offer his character in his
support as a witness.^
(.3) In evidencing the accused's bad moral character as a witness, the usual
kinds of evidence are equally available, — conviction of crime, specific in-
stances of misconduct (on cross-examination), and the like. But when these
involve a crime and are attempted to be proved on cross-examination, the
question arises whether the accused is compellable to answer, i.e. whether
he has waived his privilege against self -crimination.^ Furthermore, it may
be noted, the doctrine has been advanced in New York that, while a defend-
ant as a witness is in general impeachable as a witness, yet, in offering
through cross-examination to impeach his credibility by specific acts of mis-
conduct, the prosecution would have too wide a latitude in employing these
discreditable facts unless some limits were set in order to prevent unfair
prejudice to the defendant as such ; and hence the scope of that particular
sort of evidence should be narrower for a defendant-witness than for others.
Such a doctrine, however, would involve no abandonment of the general
principle that the defendant as a witness may be impeached as such in the
other usual ways. Nevertheless, the limitation laid down by these New
York rulings is not to be commended ; it has been several times refused
approval in other jurisdictions having these rulings before them, and is prob-
ably not law elsewhere, if indeed it is in New York to-day.*
§ 892. Defendant not Testifying, but making a " Statement." In the course
of the transition from the unenlightened common-law disqualification of an
accused person to his complete eligibility as a witness, several jurisdictions
took a half-way step {ante, § 579) of allowing the accused person to make a
1 The authorities are collected post, § 924. time of the prosecution's offer, but of the kind
Since the defendant would never take the stand of character offered.
till after the prosecution had closed its case in ^ The authorities are collected post, § 1104.
chief, the prosecution would never be authorized 3 xhe authorities are collected post, §§ 2276,
to offer his character of either sort until re- 2277.
buttal; it is therefore never a question of the * The authorities are collected /)ost, § 987.
1016
§§875-918] PEKSONS IMPEACHABLE. § 896
"statement," — a grudging concession to the demands of justice. Being in
itself anomalous, it raised several anomalous questions. One of these was
whether this " statement " rendered its maker open to impeachment like an
ordinary witness. But this question is no longer of consequence.^
3. Impeachinent of an Impeaching 'Witness.
§ 894. Limitation in the Trial Court's Discretion. No question arises here
except as to the use of character-evidence. When B is brought forward to
impeach A, and C to impeach B, it is obvious that not only might there be
no end to this process, but the real issues of the case might be wholly lost
sight of in a mass of testimony amounting to not much more than mutual
vilification. The general rule as to limiting the number of witnesses upon a
given point {post, § 1907) does not in strictness apply. Three courses are
open to pursue : first, to exclude absolutely the impeachment of the character
of an impeaching witness ; ^ secondly, to admit the impeachment of an im-
peaching witness, but no more ; ^ thirdly, to admit it only to such an extent
as the discretion of the trial Court deems best. The first two of these rules
are represented in different jurisdictions. In such a qase, however, any mere
rule of thumb is undesirable ; the preferable rule is the third.
4. Impeachment of One's Ovrn Witness.
§ 896. History of the Rule. In the first and the second of the foregoing
topics, the question presented was whether the person could properly be
treated as a witness at all ; for, if so, there was no objection to the process of
impeachment in itself. But in the third and the present topics the person
is clearly a witness, and the question is whether any principle of auxiliary
policy should exclude the process of impeachment normally applicable.
^ Except ia Georgia; some authorities are diciornm, tit. 102, § VI ("In testem testes, et in
cited ante, § 579. hos, sed non datur ultra ") ; and this was fol-
1 Contra: 1 869, State w. Cherry , 63 N. 0. 495 lowed in Chancery: 1680, Earl of Stafford's
(Pearson, C. J. : " We are told that this sup- Trial, 7 How. St. Tr. 1293, 1484 (Sir W. Jones,
posed rule of law is acted upon in that circuit, for the prosecution : " If his new witnesses are
and is based on the ground of avoiding the incon- only to the reputation of our witnesses, then
ve'nience of an endless process. If the impeach- perhaps one must have some other witnesses
ing witness can be impeached, the last witness brought to discredit his ; and we, not knowing
may also be impeached, and so on ad infinitum, who these new witnesses of his would be, may
This inconvenience cannot occur very often or need perhaps another day to bring testimony
be very serious, for the general practice is to against them ; so that I know not when the
call only the most respectable men in the com- matter can have an end " ; L. H. S. Finch : " It is
munity as to character, and the instance of call- true, in the practice of Chancery we do examine
ing a" witness of doubtful character to prove to the credit of witnesses, and to their credit,
character is exceptional. Let it be understood but no more ; but what my lords will do in this
that an impeaching witness cannot be impeached, case I know not till they are withdrawn " ; and
and the exception will .soon be the general rule, the matter went off by consent). In the follow-
But he this as it may, truth should not be ex- ing jurisdictions the rule has been allowed to go
eluded to avoid inconvenience"); 1846, Eector this far, without saying that it shall go no
r. Hector, 8 111. 105, 117 (generally not allowable, farther: 1862, State v. Brant, 14 la. 182 (left
but here treated as proper). undecided) ; 1868, State v. Moore, 25 id. 137
^ 1851, Wayne, J. (the others not touching (not excluded here; but no general rule laid
the point), in Gaines v. Relf, 12 How. 555. This down) ; 1847, Starks v. People, 5 Den. 106, 109 ;
was the rule of the ciVil and the canon law of 1903, Brink v. Stratton, — N. Y. — ,68 N. E.
the Continent : Corp. Jnr. Canon., Decretal. II, 148.
20, de testibus, c. 49; 1738, Oughton, Ordo Ju-
1017
§ 896 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
In the present topic, the rule has been long established, and is in its
general validity never to-day questioned, that the party on whose behalf a
witness appears cannot himself impeach that witness in certain ways. The
history of it is singularly obscure, considering its practical frequency and
importance. But the following stages of its development are fairly clear :
(1) In the primitive modes of trial, persons who attended on behalf of the
parties were not witnesses, in the modern sense of the word. They were
" oath-helpers," by whose mere oath, taken by the prescribed number of per-
sons and in the proper form, the issue of the cause was determined. They
were chosen, naturally and usually, from among the relatives and adherents
of either party. They went up to the court literally to " swear him off," and
the two sets of oath-takers were marshalled in opposing bands. This tradi-
tional notion of a witness, that of a person ex officio a partisan pure and
simple, persisted as a tradition long past the time when their function had
ceased to be that of a mere oath-taker and had become that of a testifier to
facts. So long as such a notion persisted, it was inconceivable that a party
should gainsay his own witness ; he had been told to bring a certain number
of persons to swear for him ; if one or more did not do so, that was merely
his loss; he should have chosen better ones for his purpose. This notion
that a party must stand or faU. by what his partisan affirms was long in dis-
appearing.^ It was a natural consequence of this notion that the party should
not be allowed to dispute what his own chosen witness says. Such (pre-
sumably) was the instinctive thought all through the earlier periods of our
recorded trials, and long after the time when witnesses in the modern sense
had taken the place of compurgators. But for a considerable period there is
no trace of a positive rule upon the subject. There must have been the feel-
ing ; perhaps no opposition to it was attempted. (2) Meanwhile, in the civil
and the canon law the rule was weU known that one who used a witness for
himself could not afterwards object to his incompetency (by interest or other-
wise) when called by the opponent.^ This rested on the general and natural
notion of a waiver of the objection (ante, § 18), and was apparently a rule of
equally unquestioned acceptance in our own law.^ (3) But the further con-
ception, that a party calling a witness must not even discredit him, was not
enforced as a rule of law until a comparatively late period. Its beginnings
are seen at the end of the 1600s, in criminal trials. Until that time, the
accused had no legal right to summon witnesses (ante, § 575), and appar-
ently the prosecution was not before then hampered by any rule against
impeachment. In that period a rule begins to be hinted at, as against the
^ Compare the history of the rule about vel promissione pecuniarum eos corruptos esse
required numbers of witnesses {post, § 2032). ostenderit, etiam earn allegationem integram ei
2 Codex IV, 20,17 ("Siquis testibus usus servnri prtecipimus " ; a. D. 528); ante 1635
fuerit, iidemque testes adversus eura in alia lite Hudson, Treatise of the Court of Star Cham-
producantur, non licebit ei personas eorum ex- ber, 201 ("But this is a firm and constant rule
cipere, nisi ostenderit inimicitias inter se et illos as well in this court as in all laws, that no man
postea eraersisse, ex quibus testes repelli leges shall be received to except against a witness as
prscipiunt; non adimenda scilicet ei licentia, incompetent, if he examine him hIso himself ").
ex ipsis depositiouibus testimonium eorum ar- 3 Some cases are cited »oj( §§911 912
guere. Sed si liquidis probatiouibus datione r . »« ,
1018
§§ 875-918] IMPEACHmG ONE'S OWN WITNESS. § 897
accused's witnesses, though the prosecution is still exempt.* (4) By the
beginning of the 1700s a general rule makes a casual appearance, and is ap-
plied in civil cases equally.^ But it had not yet received common accept-
ance ; for it is not mentioned in any of the early editions of the treatises on
trial practice. (5) By the end of the 1700s, however, it is notorious and
unquestioned. Its enforcement in the trial of Warren Hastings, in 1788,^
seems to have been the immediate cause of its general currency ; for there-
after it receives mention in the treatises.'' Whatever its merits, then, its
prestige is comparatively modern.
In considering its right to existence, the first question naturally is. By
'what reason of policy is this impeachment prohibited ? ; for upon the answer
to this depends the next question. To what extent is such impeachment for-
bidden? To the first question we find in judicial annals more than one
answer ; and it is of prime importance to determine at the outset which of
these is the correct one.
§ 897. Pirat Reason : The Party is Bound by his 'Witness' Statements.
The primitive notion, that a party is morally bound by the statements of
his witnesses, no longer finds defenders, although its disappearance is by no
means very far in the past. In the early 1800s the judges were still engaged
in repudiating this false notion of the basis of the rule against impeaching
one's own witness :
1811, EUenborough, L. C. J., in Alexander v. Gibson, 2 Camp. 555 : "If a witness is
called on the part of the plaintiff, who swears what is palpably false, it would be
extremely hard if the plaintiff's case should for that reason be sacrificed ; but I know of
110 rule of law by which the truth is on such an occasion to be shut out and justice is to
be perverted."
1831, Tindal, C. J., in Bradley v. Ricardo, 8 Bing. 58: "The object of all the laws of
evidence is to bring the whole truth of a case before the jury ; . . . [but if this contra-
dicting evidence were excluded] that would no longer be the just ground on which the
* 1681, Fitzharris' Trial, 8 How. St. Tr. 223, said as truth; ... let him answer you if he
369, 373 (on the defendant's pressing an unwill- will, but you must not afterwards go to disprove
ing witness, called by him, with self-contradic- him"); 1691, Lord Mohan's Trial, 12 How. St.
tion on cross-examination, L. C. J. Pemberton : Tr. 1007 (self-contradiction of a witness, per-
" Mr. Fitzharris, do you design to detect Mrs. mitted to the prosecution).
Wall of falsehood? She is your own wit- " 1700, Adams «. Arnold, 12 Mod. 375 ("And
ness ; you consider not you can get nothing here Holt [L. C. J.] would not suffer the plain-
by that " ; . . . Defendant, to another witness tiff to discredit a witness of his own calling, he
called by him : " You dare not speak the truth " ; swearing against him ") ; 1722, Eyre, J., quoted
Mr. J. Dolben : " You disparage your own wit- in Viner's Abr. " Evidence," M. a. 6 (" The
nesses"); 1681, Plunket's Trial, ib. 447, 469 (a party whoproduceth a witness cannot examine
witness called for the prosecution e.\onerates to the discredit of .such witness ") ; 1738, Rice v.
the defendant; the Attorney-General then ex- Oatfield, 2 Stra. 1095 {cited post, § 907).
plains that he swore the contrary before the ' Cited post, § 905.
3ury, and had said the same the night before, ' 1793, Bnller, Trials at Nisi Prius, 297, 6th
and ends by censuring him and having him ed. (at the end of the " fourth general rule ") ;
committed) ; 1681, Colledge's Trial, ib. 549, 636 1795, Hawkins, Pleas of the Crown, II, c. 46,
(defendant calls a witness to impeach another, § 208, 7th ed. ; both of these citing only Hast-
and then, on his refusal, tries by a crossexami- ings' Trial; 1796, Crossfield's Trial, 26 How.
nation to show him biassed; L. C. J. North : St. Tr. 1, 37 (L. C. J. Eyre referring apparently
"Look you, Mr. CoUedge, I will tell you some- to Hastings' Trial as his authority). In 1803
thing for law and to set you right. Whatsoever the practice under the rule appears to be still
witnesses you call, yon call them as witnesses to uncertain : Purcell v. M'Namara, 8 Ves. Jr. 327,
testify the truth for you ; and if you ask them L. C. Eldon.
any questions, you must take what they have
VOL. n. —2 1019
§ 897 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
principles of evidence would proceed, but we should compel the plaintiff to take singly all
the chances of the tables and to be bound by the statements of a witness whom he might
call without knowing he was adverse, who might labor under a defect of memory, or be
otherwise unable to make a statement on which complete reliance might be placed."
1826, 1834, Putnam, J., in Brown v. Bellows, 4 Pick. 187, 194, and Whitaker v. SalMury,
15 id. 545 : " A party is not obliged to receive as unimpeached truth everything which a
witness called by him may swear to. If his witness has been false or mistaken in his
testimony, he may prove the truth by others." ..." It would evidently be a rule that
would operate with great injustice, that a party calling a witness should be bound by the
fact which was sworn to. No one would contend for a rule so inexpedient."
§ 898. Second Reason : The Party Guarantees his Witness' General Credi-
bility. The modern rule as to impeaching the character of one's own witness
is historically merely the last remnant of the broad primitive notion that a
party must stand or fall by the utterances of his witness. This primitive
notion, resting on no reason whatever, but upon mere tradition, and irration-
ally forbidding any attempt to question the utterances of one's own witness,
was obliged to yield its ground before reason and common sense ; and, as
each encroachment upon its territory took place, it sought to justify by stat-
ing some plausible reason which would support the remainder of the rule.
Such a reason was, and is still, frequently advanced in this form, that a
party guarantees his witness' credibility. This has become the popular and
canting reason : i
1834, Putnam, J., in Whitaker v. Salisbury, 15 Pick. 545: " When a party calls a wit-
ness whose general character for truth is bad, he is attempting to obtain his cause by
testimony not worthy of credit; it is to some extent an imposition upon the court and
jury. . The law will not suppose that a party will do any such thing, but will rather hold
the party calling the witness to have adopted and considered him as credible."
1877, Folger, J., in Pollock v. Pollock, 71 N. Y. 152 : " It is fair to judge a party by
his own witness. If a party puts upon the stand a witness who is for any reason assail-
able, that party asserts or admits the credibility of that witness."
1866, Professor Simon Greenleaf, Evidence, § 442 : " When a party offers a witness in
proof of his cause, he thereby, in general, represents him as worthy of belief; he is pre-
sumed to know the character of the witnesses he adduces ; and having thus presented
them to the court, the law will not permit the party afterwards to impeach their general
reputation for truth."
One answer to this argument would be that the supposed guarantee ought
not in fairness to be allowed to burden a party when he has discovered the
witness! untrustworthiness after putting him on the stand. Another and
more satisfactory answer would be that the ends of truth are not to be sub-
served by binding the parties with guarantees and vouchings, and that it is
the business of a court of justice, in mere self-respect, to seek all sources of
correct information, whatever foolish guarantees a party may or may not
have chosen to make. But there are three other answers, not merely in the
nature of counter-arguments, that effectually dispose of the above reason.
(I) The first is that, in point of fact, looking at the actual conduct of trials,
neither party does know, and much less does he guarantee, the character and
trustworthiness of the witnesses called by him :
1020
-§§875-918] IMPEACHING ONE'S OWN WITNESS. §898
1876, May, C. J., in " Some Rules of Evidence," 11 American Law Review 264 : » But
does common experience show that, from the given fact that a witness is brought into
court by a party, it is to be inferred that he not only knows his character, but also that
that character is such that ' in general ' he is worthy of belief ? . . . Witnesses are not
made to order, — at least, not by honest people. The only witnesses who can properly
be called are those who happen to have knowledge of relevant facts ; and who these may
be is predetermined by the history and course of the events which are to come under
examination. . . . The witnesses to the material facts in dispute are such persons as
happen to have been cognizant of the facts, and are not such as the parties have selected
at their pleasure. In point of fact, it is substantially true that parties call particular
persons as witnesses simply because they are obliged to and can call no others. If a law-
suit was a manufacture, and the party bringing it could select his materials — facts and
witnesses — , there might be some propriety in holding him responsible for the character
of these materials ; but, as both are beyond his control, his responsibility for their char-
acter is out of the question. He comes into the court with the best materials he can get
to make out his case."
(2) The second answer is that this theory of guaranteeing credibility-
is not true in law, i. e. is not practically enforced by any Court, and
therefore is a mere empty phrase ; for the permission to-day universally
accorded (post, § 907) to discredit one's witness by showing the facts
to be contrary to his assertion, is wholly inconsistent with any guarantee
of credibility. If there were such a guarantee, the party could not fly
in the face of it by proving that his witness is not to be believed on
that point. A Court which allows the party to disprove what his witness
has said, and at the same time speaks of a guarantee of credibility as the
reason for some other part of the rule, refutes itself, and the phrase about
a guarantee of credibility becomes a mere jargon devoid of reality.
(3) The further logical inconsistency of this reason was long ago pointed
out in another respect :
1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, 'b. Ill, c. IV (Bowring's
ed., vol. VI, p. 401) : " Two arguments, in some measure distinct, may be collected from
the books : . . . 1. By calling for his testimony, you have admitted him to be a person
of credit, acknowledged his trustworthiness ; to seek to discredit him would be an incon-
sistency ; and the success of your endeavours would be fatal to your cause ; for, if his
testimony be not to be believed, and you have none but his, then is your side of the
cause without evidence. . . . [This argument rests upon] a false axiom of psychology.
. . . The false axiom is this : — ' All men belong to one or other of two classes — the
trustworthy and the untrustworthy. The trustworthy never say anything but what is
true: by them you never can be deceived. The untrustworthy never say anything but
what is false : so sure as you believe them, so sure are you deceived.' . . . No man is so
habitually mendacious as not to speak true a hundred times, for once that he speaks false ;
no man speaks falsehood for its own sake ; no man departs from simple verity without a mo-
tive. . . . Exhibit in the strongest possible colours the untrustworthiness of your witness —
his partiality to your adversary's side, and his improbity of character — ,you discredit so
much of his testimony as makes in favour of your adversary, but in the very same pro-
portion you increase the trustworthiness of all that portion which makes in favour of your-
self. . . . Among the means which the nature of things affords you for extracting the
truth from this or any other unwilling bosom, is interrogation, — counter-interrogation,
V. may in one sense be called, in respect of its contrariety to the current of his wishes.
' No,' says one of the rules, ' this shall not be permitted to you.' ' Why ? ' says justice.
1021
§ 898 TESTIMO^'IAL IMPEACHMENT. [Chap. XXIX
' Because,' adds the rule, 'this witness, this enemy of yours, is your witness.' ... la
the grammatical expression, ' your witness,' howsoever applicable to him, what is there that
should prevent your having permission to paint his disposition, any more than the dis-
position of any other person, in its real colours ? . . . The tendency of this your counter-
evidence is to place the value of your witness's testimony in its true light. ' No,' say
the lawyers ; ' we will not have it placed in its true light : the situation, the moral situa-
tion, in which the witness is placed — the sinister interests to the action of which he is
exposed — shall not be presented to view.' ' Oh, but what you contend for is an incon-
sistency : you want the same man to be regarded as credible and incredible — as speak-
ing true, and speaking false.' Not the smallest inconsistency: what we want to have
thought true of this man, is no more than what is true of every man."
§ 899. Thira Reason : The Party ought not to have the means to Coerce
his Witness. The truth is that the Courts affecting the foregoing reasons
have sought too much in the realm of objective arguments. They have
thought of visiting punishment on the head of offending parties, or of leav-
ing them to suffer the consequences of their mistakes. This is not a high-
minded nor a practical attitude for a tribunal seeking truth, nor is it in
harmony with the policy of other rules of Evidence. This whole attitude
must be abandoned. What we are to ask is. Is there anything in the process
of impeaching one's own witness which tends to restrict or impair the sources
of evidence, to make competent evidence less plentiful or less trustworthy ?
We should ask, not what the conduct of the party is, but what the effect is
upon the witness. Taking this subjective point of view, we find that there
is something of a reason, — a reason easy to grasp, founded on reality, not on
cant, legitimate in its policy, orthodox in its history, though narrow in its
scope, — the reason that the party ought not to have the means to coerce his
witnesses. It was laid down by Mr. Justice Buller, a century and a half ago,
in terms which have been frequently quoted, — more often quoted than
acknowledged (as Serjeant Evans once said of his own writings):
Ante 1767, Buller, J., Trials at Nisi Prius, 297: " A party never shall be permitted to
produce general evidence to discredit his own witness, for that would be to enable him to
destroy the witness if he spoke against him, and to make him a good witness if he spoke
for him, with the means in his hands of destroying his credit if he spoke against him." *
1834, Putnam, J., in Whitaker v. Salisbury, 15 Pick. 5-15 : " If this were not so, it would
be in the power of any party merely by putting a witness upon the stand, to blacken and
defame his general character for truth whenever the evidence should fall short of what
was wanted."
The true foundation of policy (so far as there is any) is here manifest. If it
were permissible, and therefore common, to impeach the character of one's
witness whose testimony had been disappointing, no witness would care to
risk the abuse of his character which might then be launched at him by the
disappointed party. This fear of the possible consequences would operate
subjectively to prevent a repentant witness from recanting a previously falsi-
1 Approved in the following: 1834, Lord Evidence, 89; 1814, Phillipps, Evidence, 308
Denman, C.J., and Bolland, B., in Wright v. (5th Amer. ed.) : 1824, Starkie, Evidence, 216.
Beckett, 1 M. & Bob. 417, 432 j 1801, Peake,
1022
§§875-918] IMPEACHIISrG ONE'S OWN WITNESS. §899
Bed story, and would more or less affect every witness who knew that the
party calling him expected him to tell a particular story. Of this sort of
abuse from the opposite side the witness is even now sufficiently afraid ;
were he liable to it from either side indiscriminately, the terrors of the wit-
ness-box would be doubled. Speculative as this danger may be, it furnishes
the only shred of reason on which the rule may be supported. Moreover, it
is the only reason which allows the details of the rule to be worked out con-
sistently. What is this fear which we desire to save the witness ? It must
be a fear that would operate upon the ordinary witness honestly inclined.
The fear that his character will be abused, — this is certainly a tangible and
sufficient considera*-ion. On the other hand, the fear that he will be shown
to be affected by bias or interest, — this involves nothing disgraceful or
derogatory to character, and is hardly worth considering. Thus this reason
tests efficiently the various details of the rule.
But, after all, it is a reason of trifling practical weight. It cannot appre-
ciably affect an honest and reputable witness. The only person whom it
could really concern is the disreputable and shifty witness ; and what good
reason is there why he should not be exposed ? That he would adhere to
false testimony solely for fear of exposure by the party calling him is un-
likely ; because his reputation would in that case equally be used against
him by the opponent. It therefore becomes merely a question which of the
two parties may properly expose him. Is there any reason of moral fairness
which forbids this to the party calling him ? The rational answer must be
in the negative. There is no substantial reason for preserving this rule, —
the remnant of a primitive notion :
1876, May, C. J., in "Some Rules of Evidence,", 11 American Law Review 267:
" Courts are not established to give that party his case who behaves best in court. If
they were, it seems to us that the plaintiff stands quite as well in such a case, on the score
of fairness, as the defendant, who lies in wait for the profits of treachery. ... [It is
improper that] an untruthful or incredible or unreliable witness by reason of moral
infirmity may not be unmasked by any party in interest. . . . What more absurd than
to ask a jury to find the truth upon the testimony of a witness notorious for not speaking
the truth, all the while concealing from them the fact that he is or may be a false wit-
ness ? And how can it be of importance to the main purpose of the trial how or by
whom the fact that the witness is not to be relied upon is made known ? ... If he
betrays the party who calls him, and falsifies in every statement which he makes, the
opposite party will of course accept the treason, say nothing of impeachment, and leave
the jury no alternative but to find an unjust verdict upon evidence which both the par-
ties know to be the rankest perjury. Certainly a rule which may produce such a result
ought to be at once discarded, unless it can be shown~ to be of some special use in the
general purposes of legal controversy. That a court of justice should permit such a mis-
carriage on the merits, because it sees, or fancies it sees, a shadow of unfairness in one
of the parties in a matter collateral to the suit and in no way touching the justice of the
case, is a reproach which ought to be done away. Nobody can profit by the rule bu^
the witness and the antagonist of the party who calls him, and they only by the defeat of
the ends of justice." ^
^ A similar argument is forcefully elaborated and by Chief Justice Appleton (Evidence,
by Mr. Bentham (Judicial Evidence, ubi supra), c. XIV, p. 223).
1023
899
TESTIMOJSriAL IMPEACHMENT.
[Chap. XXIX
. Assuming the rule to rest upon the third reason above noted, it remains to
ascertain the effect of this principle upon the various kinds of impeaching
evidence.
§ 900. Bad Character. It has never been doubted that one effect of the
rule is to exclude evidence of the witness' character; this much is clearly
forbidden, whatever policy we accept as the support of the rule.^ Upon the
true policy of the rule, it ought to make no difference whether the party
knew the character or not before offering the witness' testimony ; but upon
the conventional theory (ante, § 898), that the rule is intended to punish
unfair conduct, it is difficult to avoid the conclusion that, if he did not know
it, the prohibition does not apply.^ Moreover, it ought not to apply to other
qualities than moral character, — that is, not to insanity .**
§ 901. Bias, Interest, or Corruption. There is no reason whatever, upon
correct policy, why this sort of evidence should be excluded; for neither
interest nor bias are disgraces, the fear of which could be used to coerce a
witness ; and as for corruption by subornation or the like, it ought never to
be kept unmasked. Courts have, however, usually treated all these matters
as included within the prohibition against impeachment, and excluded such
evidence.^
^ Apart from the following cases, this inter-
pretation of the rule is repeated in almost every
case upon the present topic, so that no other
citations are necessary. England: St. 1854,
c. 125, § 22 (quoted post, § 905) ; 1858, Green-
oush V. Eccles, 5 C. B. n. s. 786, 28 L. J. C. P.
160 (speaking of the law before 1854 as " clear ") ;
Canada: Crira. Code 1892, § 699 (like Eng. St.
1854, c. 125, § 22) ; as also the following Pro-
vincial statutes : B. C. Rev. St. 1897, c. 71, § 33 ;
Newf. Cons. St. 1892, c. 57, § 17; N. Br. Cons.
St. 1877, c. 46, § 19 ; N. Sc. Rev. St. 1900, c 163,
§ 42; Ont. Rev. St. 1897, c. 73, § 20; 1853,
Mair o. Culy, 10 U. C. Q. B. 321, 32.5, per
Barns, J.; P. E. I. St. 1889, c. 9, § 15; United
Stales : Gal. C. C. P. 1872, § 2049 (" bv evidence
of bad character"); 1897, Wise v. Wakefield,
118 Cal. 107, 50 Pac. 310; 1864, Olmstead v.
Win.sted Bank, 32 Conn. 278, 287 ; 1901, Water-
bnrv V. Waterhnry T. Co., 74 Conn. 152, 50
Atl 3; Fla. Rev. St. 1892, § 1101 ; Haw. Civil
Laws 1897, § 1421 (" general evidence of bad
character" forbidden); Ida. Rev. St. 1887,
§ 6080 ; Ind. Rev. St. 1897, § 520 (impeachment
by "bad character," not allowable "unless it
was indispensable that the party should produce
him, or in case of manifest sarprise ") ; Mass.
Pub. St. 1882, c. 169, § 21 ; Mont. C. C. P. 1895,
§ 3377; 1826, Skelliuger v. Howell, 3 Halst.
N. .J. 310; N. M. Comp. L. 1897, § 3026; 1830,
Jjawrence u. Barker, 5 Wend. 301, 305; 1834,
Jackson v. Leek, 12 id. 105, 108; 1847, People
V. Safford. 5 Den. 112, 117; 1860, Sanchez; v.
People, 22 N. Y. 147, 153; 1873, BuUard v.
Pearsall, 53 id. 2.30; Or. C. C. P. 1892, § 838;
Tex. G. Cr. P. 1895, § 795 ("The rule that a
party introducing a witness shall not attack his
testimony is so far modified that any party,
when facts stated by a witness are injurious to
his cause, may attack his testimouy in any other
1024
manner, except by proving the bad character of
the witness ") ; Va. St. 1899-1900, c. 117, § 1
("general evidence of bad character" forbid-
den); Wyo. St. 1895, t. 68 ("bad character"
excluded).
2 1834, Lord Denman, C. J., in Wright v.
Beckett, 1 M. & Rob. 426 (" the rule cannot ap-
ply to a case where such facts are brought to
your knowledge after you have placed him in
the witness-box").
3 1857, State ii. Knight, 43 Me. 11, 134 (the
counsel was allowed to argue against the accu-
racy of one of the statements of his witness by
calling attention to her age and feebleness as
affecting her memory ; the Court trying to treat
it as a mere correction of fact). Contra : 1902,
Southern Bell T. & T. Co. v. Mayo, 134 Ala.
641, 33 So. 16 (impeachment of sanity, held
improper).
"• Interest; this has usually' been excluded:
1802, Feuton v. Hughes, 7 Ves. Jr. 287, 290,
Lord Eldon, L. C. (speaking of it as " settled
upon by a conference bv all the Judges"; ex-
cluded); 1829, Winston "k. Moseley, 2 Stew. 138
(excluded) : 1846, Stewart v. Hood, 10 Ala. 600,
607 (excluded) ; 1859, Fairly u. Fairly, 38 Miss.
280, 289 (excluded) ; 1827, Jackson r. Varick, 5
Cow. 239, 242 (a subscribing witness was allowed,
after being called on one side, to be examined on
the other, an objection on the score of interest
not being available to the former; "theyconld
not afterwards question either his competencv
or credibilitv " ; affirmed in Varick r. Jackson,
2 Wend. 166, 200) ; 1829, Fulton Bank v. Staf-
ford, 2 Wend. 483, 485 (same). Can-nplion ; the
practice has differed: 1838, Dunn v. Aslett. 2
M & Rob 122, Lord Denman, C. J. ("a party
calling a witness may examine him as to any
fact tending to show he has been induced to he-
tray that party " ; here, a recent intimacy with
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 902
§ 902. Prior Self-contradiction. (1) Theory. The evidential nature of a
contradictory statement made by the same person at another time is examined
elsewhere {post, § 1018) in dealing with the various kinds of discrediting
evidence. It is sufficient to note here that, in effect and primarily, it neu-
tralizes the statement on the stand, by showing that the witness cannot be
correct in both statements and is as likely to be wrong in the latter as in the
former, and, furthermore, that his certain error in this one respect indicates a
possibility of error upon other points. But what is not to be necessarily
implied from this error is any reflection upon the witness' character, nor
indeed upon any specific testimonial quality. The implication is merely
that in some respect his testimonial capacity is capable of error, — perhaps
in his observation, perhaps in his memory, perhaps through bias or corrup-
tion, perhaps through a dishonest disposition, but not definitely in any
one of these qualities. Does, then, the principle of the rule forbidding the
impeachment of one's own witness extend its prohibition to this sort of
evidence ?
Upon the second theory (ante, § 898), the cant theory, this evidence should
logically be forbidden. If the party is to be taken as guaranteeing the wit-
ness' credibility, clearly he is prohibited from exposing, by any means what-
ever, an error of that witness, and especially an error which carries with it
an implication of other errors, from whatever source. But the correct
theory of the rule (ante, § 899) by no means prevents an exposure of error
through the present means. The policy of protecting the witness, sub-
jectively, against the fear of being abused and held up to disgrace, in case he
should disappoint the expectations of the party calling him, obviously cannot
regard the exposure of a self-contradiction as a legitimate reason for such ap-
prehension on the part of the witness. There is no necessary implication of
bad character, no smirching of reputation, no exposure of misdeeds on cross-
examination, nothing that could fairly operate to coerce either an honest or a
dishonest witness to persist in an incorrect story through fear of the party
calling him. An honest witness could readily explain how he came to make
the former statement ; a dishonest one would not be deterred from returning
to truth by such a trifling obstacle. On correct principles, then, the use of
self -contradictory statements is not forbidden. But the case is even stronger ;
for the indirect effect of a self-contradiction, as reflecting on general credibility
(post, § 1018), is not resorted to when such statements are used against one's
own witness ; for the effort is merely to nullify and remove the adverse and
unexpected assertion, and the party neither expects nor wishes to discredit
the remainder of the testimony, which satisfies him well enough. Thus, on
the theory that the rule merely forbids an attack on general credibility, there
is no breach of the rule in using evidence of self-contradictions. It may be
the opponent) ; 1874, State v. Shonhausen, 26 (cross-examination of a hostile witness to dis-
La. An. 421, 423 (excluding questions as to at- credit memory, allowed) ; 1860, Carr v. Moore,
teniptsto suborn witnesses). Bias and Hostility ; 41 N. H. 131, 134 (allowed after cross-examina-
this has been allowed to be shown : 1899, Consol. tion by the opponent).
Coal Co. V. Seniger, 179 III. 370, 53 N. E. 733
1025
§ 902 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
said, therefore, that even upon the common theory — at least, its looser
form (ante, § 898) — the use of self-contradictions is in truth not improper.
§ 903. Same : (2) Practical Reasons Pro and Con. But Such has been the
difference of opinion over this sort of evidence that the question of general
principle has not always been regarded as controlling, and the controversy has
rested on such reasons of practical convenience, peculiar to this sort of evi-
dence, as could be advanced on either side. These arguments are represented
in the following passages :
1834, Denman, L. C. J., in Wright v. Beckett, 1 Moo. & Rob. 418, 425: " The word
'credit' appears to me manifestly to be employed in the sense of 'general character';
and, thus understood, the rule and the reason go well together, and are perfectly con-
sonant to common sense; 'You shall not prove that man to be infamous whom you en-
deavored to pass off to the jury as respectable.' But how can this prevent me from
showing that he states an untruth on a particular subject by producing the contrary
statement previously made by him, which gave me just cause to expect the repetition of
it now ? If his character is injured, it is not directly but consequentially. But perhaps
no injury may arise; there may be a defect of memory ; there may be means of perfect ex-
planation. If not, if the witness professing to be mine has been bribed by my adversary
to deceive me, if, having taught me to expect the truth from him, he is induced by malice
or corruption to turn round upon me with a newly invented falsehood, which defeats my
just right and throws discredit on all my other witnesses, must I be prevented [from]
showing the jury facts like these? . . . Can any reason, then, be assigned why, when
equally deceived by his denying to-day what he asserted yesterday, you should be excluded
from showing the contradiction into which (from whatever motive) he had fallen ? It is
clear that in civil cases the exclusion might produce great injustice, and in criminal
cases improper acquittals and fraudulent convictions. . . . Indeed, the case of Ewer v.
Ambrose presents a reductio ad absurdum which can hardly be surpassed; for if the answer
could not have been received at all, the same man might defeat on the same day a suit in
Chancery and an action at law by swearing in the former to the affirmative and in the
latter to the negative of the same proposition. . . . The inconvenience of precluding the
proof tendered strikes my mind as infinitely greater than that of admitting it. For it is
impossible to conceive a more frightful iniquity than the triumph of falsehood and treachery
in a witness who pledges himself to depose the truth when brought into Court, and in the
meantime is persuaded to swear, when he appears, to a completely inconsistent story.
The dangers on the other hand, though doubtless very fit subjects of precaution in the
progress of a trial, exist at present in equal degree with reference to modes of proceeding
which have never yet been questioned. The most obvious and striking danger is that of
collusion. An attorney may induce a man to make a false statement without oath for
the mere purpose of contradicting by that statement the truth, which when sworn as a
witness he must reveal. The two parties concerned in this imagined collusion must be
utterly lost to every sense of shame as well as honesty; but there is another mode by
which their wicked conspiracy could be just as easily effected. The statement might be
made and then the witness might tender himself to the opposite party, for whom he might
be set up, and afterwards prostrated by his former statement; this far more effectual
stratagem could be prevented by no rule of law. The other danger is that the statement,
which is admissible only to contradict the witness, may be taken as substantive proof in
the cause. But this danger arises equally from the contradiction of an adverse witness ;
it is met by the Judge pointing out the distinction to the jury and warning them not to
be misled; it is not so abstruse but that Judges may explain it and juries perceive its
reasonableness ; and it is probable that they most commonly discard entirely the evidence
of him who has stated falsehoods, whether sworn or unsworn."
1824, Mr. Thomas Starlcie, Evidence, 217 : " The resolution of this doubt depends, as it
1026
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 903
seems, on the considerations [1] whether in the abstract such evidence is essential to jus-
tice ; aud if so, then whether the party is to be excluded from such evidence either by
reason of [2] any objection in the nature of an estoppel, or [3] of any collateral incon-
venience which might result. [1] As a general proposition, it is essential to justice that
in a case where the testimony of two witnesses upon a question of fact is contradictory,
every aid should be afforded to Enable the jui-y to decide which of them is better entitled
to credit. . . . [2] If, as an abstract position, it be essential to the end of truth that such
evidence should be submitted to a jury, it remains to consider in the first place whether
the party having called the witness is, as it were, to be estopped from afterwards so im-
peaching his credit. It is diflBcult to come to this conclusion. A party who is prepared
with general evidence to show that a witness whom he calls is wholly incompetent acts
unfairly and inconsistently, for, knowing his witness to be undeserving of credit, he
offers him to the jury as the witness of truth, and attempts to take an unfair advantage
by concealing or disclosing the real character of his witness as best suits his purpose ; but
a party may impeach his own witness in the mode in question without incurring any such
blame; he may have been purposely deceived by the witness, or, though not under a legal,
necessity to call him, may be constrained by paucity of evidence under the particular
circumstances. . . . [3] Considering the admission of such evidence in its tendency to
occasion collateral inconvenience, the argument that a party ought not to be allowed to
discredit his own witness by general evidence seems to have little weight; the contradic-
tion proposed being plainly distinguishable. ... A party may with perfect propriety
and consistency insist on the general competency of his witness, although he alleges that
his testimony as to one particular fact is erroneous."
1853, Common Law Practice Commissioners, Second Report, 16; Jervis (later C. J.),
Martin (later B.), Walton, BramweU (later B. and L. J.), Willes (later J.), and Cockburn
(later L. C. J.) (after declaring that "the weight of reason and argument appears to us
to be decidedly in favor of the affirmative " for admission, they proceed) : " For the ad-
missibility of the proposed evidence, it is said that this course is necessary as a security
against the contrivance of an artful witness who otherwise might recommend himself to
the party by the promise of favorable evidence (being really in the interest of the oppo-
site party), and afterwards by hostile evidence ruin his cause; . . . that such a power is
necessary for the purpose of placing the witness fairly and completely before the Court,
and for enabling the jury to ascertain how far he deserves to be believed ; that the ends
of justice are best attained by allowing the fullest power for scrutinizing and correcting
evidence, and that the exclusion of the proof of contrary statements might be attended
with the worst consequences. The chief objection t6 the proposed evidence appears to be
that a party, after calling a witness as a witness of credit, ought not to be allowed to dis'-
credit him. The objection proceeds upon the supposition that the party first acts on one
principle, -and afterwards, being disappointed by the witness, turns around and acts upon
another, thus imputing to the party something of double dealing or dishonest practice.
But it is evident that this does not apply to the case where a party, having given credit
to a witness, is deceived by him aud first discovers the deceit at the trial oiE the cause.
To reject the proposed evidence in such a case, and repress the truth, would be to allow
the witness to deceive both jury and party."
1870, Mr. /. H. Benton, Jr., arguendo, in Hurlbwt v. Bellows, 50 N. H. 112: " We sub-
mit that a party does not, by calling a witness, upon one point, vouch for him as entitled
to credit upon every point to which he may be called in the case by anybody. He may
know very little of the witness. He may even believe his character to be doubtful, and
still properly believe that his statements upon the point to which he calls him are true.
In such a case there is no reason for saying that the party or his attorney are practising
a fraud upon the Court, or asking the jury to give the witness any more credit than he is
entitled to. The party calls the witness in good faith, relying upon his previous state-
ments, believing that he will state the truth, and asking for his testimony the exact credit
to which it is entitled. Now if the witness has deceived him, and testifies contrary to
1027
§ 903 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
those statements, ought not the party to be allowed to show the deception, that the
contradiction may be made manifest and the testimony weighed in the scales of truth ?
Suppose the contradiction does discredit the witness; if his testimony is unworthy of
belief, ought not the jury to know it? . . . [By the opposite rule] a party who has been
entrapped and deceived by a dishonest and lying witness is compelled to practise an un-
willing, but none the less dangerous fraud upon the Court; and thus, not only his inter-
ests, but what is of infinitely more importance than the interests of any party, the cause
of justice itself, is sacrificed to an unreasonable construction of the law."
There ought to be no hesitation upon the propriety of this evidence. It is
receivable on three distinct considerations : 1. The principle of the rule is
directed against Character evidence, and fails entirely to touch the present
sort ; 2. The dangers supposed to accompany its use are too speculative and
trifling to merit consideration ; 3. The exclusion of the evidence would be
unjust (1) in depriving the party of the opportunity of exhibiting the truth and
(2) in leaving him the prey of a hostile witness. The only real danger that is
to be apprehended is that the contradictory statement may be taken by the
jury as substantive testimony in the place of the statement on the stand ;
but this, though a violation of the Hearsay Eule {post, § 1018), is not a
serious enough disadvantage to outweigh the above considerations, and can.
always be guarded against by proper instructions.
§ 904. Same : (3) Various Forms of Rule adopted by Different Courts.
The rulings, however, exhibit more than two attitudes taken towards the use
of this evidence. There are, of course, (1) Courts which admit the evidence
freely in any shape,' and (2) Courts which reject the evidence absolutely in
every shape.^ But there are also several attitudes of compromise and modifi-
cation, the theories of which need to be examined before noting the rulings.
3. There is the view which admits the evidence after a showing that
the party has been surprised (or " entrapped," " misled ") by his witness, or,
as it is sometimes put, that the witness unexpectedly proves adverse.^ This
condition does not practically often exclude, since the party is in most
cases the victim of such a surprise. But there are two objections to this
limitation : (a) Even if the party does know beforehand (by a letter from the
witness, for example), that the witness will not adhere to his original story,
there is no harm done by allowing him, if he sees fit to call a witness against
himself, to -show the contradiction ; for that is exactly what he could have
done if he had left it to the other party to call the witness ; he has in fact
on the whole profited less than if the latter course had been pursued, (b) In
most cases, the contradiction will deal with only one item in the whole
story of the witness ; and there is no reason why the party should not get
1 E. g. in most of the statutes, post. In Eng- Bellows (in case of surprise by an adverse wit-
land by statute the discretion of the trial judge ness, provided the party acts in good faith) ; in
controls ; in Kansas, the Court has followed Mississippi, Dunlap v. Richardson (" deceived or
this form. misled, " etc.) ; and in probably the majority of
2 In many of the earlier rulings, before the jurisdictions. Some Courts carelessly apeali of
distinction as to refreshing recollection was the evidence as admissible " to show surprise."
taken. But the surprise is not the thing to be shown by
^ E.g. in Missouri, Dunn i: Dunnaker (if the evidence; it is the surprise that allows the
" entrapped ") ; in New Hampshire, Hurlburt v. evidence to be received.
1028
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 904
the benefit of the witness' testimony on the remaining points and yet show
him mistaken in this one item ; such a course is in no way dishonest, and to
forbid it is to impose a captious and purposeless restriction and to suppress
a portion of the truth.
4. Another typical attitude is to exclude the self-contradiction if offered
by extrinsic testimony, but to allow it if brought out by a question to the wit-
ness himself.* This compromise course, too, has nothing in its favor. If a
contradiction may be shown, there is no good reason why the party should
be restricted to a particular method of showing it. The doctrine of con-
fusion of issues by outside testimony {post, § 1019) cannot apply, for it
excludes only contradictions on collateral points; these could not be used
even against an opponent's witness, and it may be conceded that the offered
contradiction must deal with a material point.
(5) Another type of rule is to exclude all use of self-contradictory state-
ments as such, i. e. as discrediting the witness' statement on the stand, whether
offered by extrinsic testimony or brought out by questions to the witness ; but
to allow the witness himself to be questioned about the former statement
purely for the purpose of stimulating his recollection and inducing him to make
a correction. This form is second in popularity :
1850, Coleridge, J., in Melhuish v. Collier, 19 L. J. Q. B. 493: " A witness from flurry
or forgetful n ess may omit facts, and on being reminded may carry his recollection back
so as to be able to give his evidence fully and correctly, and a question for that purpose,
may properly be put. ... It is objected that the object of the question put here was
to contradict and not to remind the witness, and that therefore it could not be put. It is
certainly very difficult to draw the line in practice, and I am not now disposed to do it."
1889, Elliott, J., in Bahcock v. People, 13 Colo. 519, 22 Pac. 817 : " The tendency of
recent legislation, as well of modern decisions, has been to relax somewhat the rules of
evidence, so as to afford better opportunity for the development of truth. Modern experi-
ence has also shown that a party may sometimes be deceived in the character and animus
of a witness whom he has called, as well as in the testimony he is expected to give ; and
he learns, after the witness begins to testify — a very inopportune time — that he has to
encounter bitter and unscrupulous opposition where he had expected to receive only fair
and honorable treatment. This may be evinced by reluctance or evasion on the part of the
witness in answering questions, or by too great readiness in making or volunteering dam-
aging statements contrary to his previous version of the matter. Under such circum-
stances, ... in extreme cases, where it is apparent that a witness is giving testimony
contrary to the reasonable expectation of the party calling him, such party should be
allowed to cross-examine such witness, for the purpose of refreshing his recollection, with
the view of modifying his testimony or of revealing his animus in the case, . . . and
to ask him if he has not theretofore made other or different statements from those he has
just given in evidence."
This form of the rule has the merit of being consistent with itself, and of
recognizing that, however improper it may be thought to be to impeach by
self-contradictions, nevertheless this doctrine should in no way prevent the
* E.g. in Alabama, Campbell v. State; but A sub-variety occurs in North Dakota (George
these rulings usually simply reserve for the v. Triplett), where there must be surprise by a
future tlie question of admitting outside testi- hostile witness.
mony, and do not definitely reject it.
1029
§ 904 TESTIMONIAL IMPEACHMEISTT. [Chap. XXIX
always legitimate effort of the party to stimulate his witness' memory and
obviate the effect of temporary forgetfulness.^ Some Courts allow the ques-
tion only on condition that the witness is hostile, — a limitation without
precedent or justification.^ One or two Courts refuse to allow at all this
method of refreshing recollection ; but this involves the question what
methods of refreshing recollection are legitimate, and has already been dealt
with (ante, § 761).
(6) Another attitude is a kind of compromise between the last two ; ex-
cluding outside evidence, it allows only the question to be put, primarily to
stimulate recollection, but does not object to the incidental discrediting which
may ensue :
1873, Rapallo, J., in Bullard v. Pearsatt, 53 N. Y. 231 : " Such questions maybe asked
of the witness for the purpose of probing his recollection, recalling to his miud the state-
ments he has previonsly made, and drawing out an explanation of the apparent inconsist-
ency. This course of examination may result in satisfying the witness that he has fallen
into error and that his original statements were correct ; and it is calculated to elicit the
truth. It is also proper for the purpose of showing the circumstances which induced the
party to call him. Though the answers of the witness may involve him in contradictions
calculated to impair his credibility, that is not a sufficient reason for excluding the in-
quiry ; . . . inquiries calculated to elicit the facts, or to show to the witness that he is
mistaken, and to induce him to correct his evidence, should not be excluded simply be-
cause they may result unfavorably to his credibility."
1895, Corliss, J., in George v. Triplelt, 5 N. D. 50, 68 N. W. 891 : " This may be done
. . . for the purpose of refreshing the recollections of the witness. ... If the witness is
in fact testifying falsely, it may bring him to the truth to probe his conscience, or to call
to his mind the danger of punishment for perjury, in view of the fact that he has, by
statements out of court inconsistent with his testimony, furnished evidence for his con-
viction. Moreover, a lawyer of strong personality, burning with indignation at the wit-
ness' deceit, may cow and break down a corrupt witness who has told him or his client a
different story." '
(7) Still another hybrid form of the rule allows the question to be put to
the witness, primarily to refresh recollection (as in one preceding form) or
frankly to discredit (as in another) ; but it allows outside testimony to be
offered in case the witness proves hostile.^
(8) Besides these various forms of the rule, there is found, among many
of the Courts that freely admit the self-contradictory statements, a doc-
trine which excludes a certain class of such statements because they are not
in any true sense contradictory, and merely serve to introduce flagrant hearsay.
Thus, if A testifies that he knows nothing of the affray in question, this doc-
trine would forbid the admission of his former statement describing the affair
in detail. Now the theory that this is not a self-contradiction ® seems un-
» Examples of this may be seen in Iowa, Hall Hemingway ». Garth; in Wyoming, Arnold v.
V. R. Co. ; in Louisiana, State v. Vickers ; in State, with a peculiar limitation.
Michigan, Dillon v. Pinch; in South Carolina, > E.g. in the Federal Supreme Court, Hick-
State V. Johnson. ory «. ij. S.
8 E.g.m Minnesota, State y. Tall; in Ohio, "' 1883, Hull u. State, 98 Ind. 132 ("No fact
Hurley v. State, with a flavor also of the next having been stated, none could be disproved "),
form. and cases cited pos«, § 1043.
' Other examples may be found in Alabama,
1030
§§875-918] IMPEACHING ONE'S OWN WITNESS.
905
sound ; for he is clearly false in one or the other of his statements, since one
of them in effect asserts that he knows about the affair and the other asserts
that he does not. But the additional argument ^* that the admission of such
statements would practically allow a party to re-enforce hy pure hearsay
statements the gaps in his witness' statement seems a satisfactory reason for
the prohibition ; for it appeals to the well-established principle {fost, §§ 1018,
1043) that a prior self-contradictory statement is not to be used as original
testimony, and here the latter and illegitimate effect of the statement would
practically usurp entirely its function as a mere contradiction. It may be
noted that the Courts enforcing this doctrine differ as to details. Some seem
to exclude such statements in whatever form offered ; ^^ others allow them to
be brought out by question to the witness. ^^ Moreover, some Courts, instead
of holding that the defect of the evidence consists in a lack of self-contradic-
tion, phrase it that the witness is not " adverse," meaning that he has merely
failed to help the party offering him.^^
§ 905. Same : (4) State of the Law in the Various Jurisdictions. The
foregoing forms of the rule have not always been consistently enforced even
within the same jurisdiction. In England, in particular, the rule has had a
checkered course. Up to the middle of the 1800s the admissibility of this
sort of evidence had not been generally conceded, and there were rulings
looking in various directions.^ At this time, as a result of the recommenda-
1" 1890, Thayer, C. J., in Langford v. Jones,
18 Or. 307, 327, 22 Pac. 1064 (" If it were proper
[to offer such evidence], a case could be made
out many times by proof of what third persons
had said ; it would only be necessary to call the
persons as witnesses and attempt to show by
them the substance of the matter embraced in
the statements, and, having failed in that, then
to prove what such peisons had said at another
time and place, when they were not under oath,
and obtain the benefit of that as direct evidence
of the fact. Such a construction would enable
parties to employ as a sword what was intended
as a shield ").
i"- E. g. in Indiana, Hull v. State. .
^^ E.g. in California, People v. Jacobs; in
Oregon, Langford v. Jones.
"E.g. in Indiana, Conway v. State, — the
true ^xplanation being better put in Hall v.
State ; iu Mississippi, Chism u. State, — better
put in Moore v. State.
I 1788, Warren Hastings' Trial, Lords' Jour-
nal, Feb. 9, April 10, 31 Pari. Hist. 369 (a ques-
tion being asked as to former contradictory
testimony, it was disallowed by the Judges, ap-
parently on the principle of § 1043, post, and
not as generally incompetent; such questions
seem often to have been allowed elsewhere on
this trial, e.g. 1788, May 7 and 28 ; part of the
ruling is quoted iu Starkie, Evidence, 220, and
inPhillipps, Evidence, 5th Amer.ed, 310) ; 1803,
E. V. Oldroyd, B. & R, 88 (the judge ordered a
person named as witness for the prosecution to
be examined, though the prosecutor strongly
suspected her to be an accomplice and did not
wish to examine her; her testimony favored the
accused ; and the judge ordered her deposition
1031
before the coroner to be read to show material
discrepancies ; held proper by all the Judges, as
having been ordered by the judge ; and Ellen-
borough, L. C. J., and Mansfield, C. J., also
thought that the prosecutor could do the
same) ; 1823, R. v. Boyle, cited in 1 Moo. & Rob.
422, Bayley, J. (admitted) ; 1825, Ewer v. Am-
brose, SB. & C. 746 (a contradictory statement
was held improperly used as evidence of the fact
alleged in it ; but as to its use merely to dis-
credit by inconsistency, Bayley, J., inclined to
forbid it ; Holroyd, J., and Littledale, J., thought
it unnecessary to decide the question) ; 1833,
Bernasconi v. Fairbrother, cited in 1 Moo. &
Rob. 427, Kenman, L. C. J. (admitted) ; 1834,
Wright V. Beckett, 1 Moo. & Rob. 428 (Denman,
L. C. J. : " The only proper way of conducting it
[the cross-examination] is by proving the wit-
ness' former statement in the most distinct and
authentic manner" ; 1834, Bolland, B. ("I think
great weight is due to the argument founded on
the danger of collusion ; it is, indeed, in my
mind, the main objection to the reception of the
evidence ") ; 1838, Dunn v. Aslett, 2 Moo. & Rob.
122, Denman, L. C. J. (admitted) ; 1838, Holds-
worth V. Mayor, ib. 15.S, Parke, B. (excluded,
even though the hostile testimony came out
on cross-examination ; " it goes to his general
credit to show that he has given a different
account of the matter before"); 1839, R. v.
Ball, 8 C. & P. 745, Erskine, J. (excluding
extrinsic testimony, but apparently allowing
the question on cross-examination) ; R. v. Farr,
ib. 768, Patteson, J. (excluding it from both
sources) ; 1841, Winter v. Butt,' 2 Moo. & Rob.
357, Erskine, J. (excluded ; citing another ruling
by himself and Fatteson, J., and the approvsil ca
§905
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
tion of the Commission on Procedure (quoted ante, § 903), a statute was
enacted :
1854, St. 17 & 18 Vict. c. 125, § 22 : " [1] A party producing a -witness shall not be al-
lowed to impeach his credit by general evidence of bad character ; [2] but he may, in
case the witness shall in the opinion of the judge prove adverse, [3] contradict him by
other evidence, [4] or by leave of the judge prove that he has made at other times a state-
ment inconsistent with his present testimony."
It is easy to imagine the confusion caused by this bungling paragraph ; for
the showing of an error by ordinary contradiction, provided for in clause
[3], was already freely permissible without interference by the judge and
whether or not the witness was adverse ; the proviso contained in clause [2]
was probably intended for clause [4] as an alternative suggestion, and when
the Commission chose the phrase " by leave of the judge " and rejected the
other, it was by some draughtsman's mistake transposed to clause [2] instead
of being struck out. As the statute stands,' the present class of evidence,
self-contradictions, is admissible only by leave of the judge and in case of a
witness deemed adverse by the judge.^
' several of the other Judges ") ; Allay v. Hatch-
ings, lb., Wightman, J. (excluded) ; 1850, Mel-
huish V. Collier, 19 L. J. Q. B. 493 (admissible, by
question to witness, per Patteson and Erie, JJ. ;
Coleridge, J., allowing it for refreshing recol-
lection, and refusing to distinguish the two pur-
poses in practice ; outside testimony excluded, per
Patteson and Coleridge, JJ., but semble, contra,
per Erie, J., who said: " It is not necessary to
decide the point whether the attorney could be
called to contradict [the witness who denied
having told him the same story she told on the
stand]. The majority of the Judges are of opin-
ion that such a course ought not to be allowed ;
but some judges have continued until the end of
their career to think that justice required that
such evidence should be admitted") ; 1850, The
Iiochlibo, 14 Jur. 792, Dr. Lushington (not decid-
ing, but expressing a preference for the opinion
of Bolland, B. ; treating prior self-contradictions
as a means " absolutely to discredit the witness,"
and indirectly equivalent to discrediting him by
" general evidence " ; also making the argument
of policy, that " I have yet to learn that a wit-
cess is to be tied and pruned down by his signa-
ture before ; I think it is for the interests of
justice, and the only way to get at the truth,
that a witness should go before the examiner to
give his evidence not tied down or coerced by
any statement previously made to any solicitor
or proctor in the cause"; the learned Judge
was probably moved by Scotch traditions) ; 1853,
K. V. Williams, 8 Cox Cr. 343, Williams, J. (al-
lowing a witness who has given an unexpected
answer to be shown his deposition and then
asked once more, and afterwards to be ques-
ioned in leading form from the deposition).
' The principal question of interpretation in
the ensuing rulings is as to the meaning of "ad-
verse": England: 1858, Greenough v. Eccles,
5 C. B. H. s! 786, 28 L. J. C. P. 160 (" adverse "
is interpreted as " hostile," in distinction from
.jnerely " unfavorable " ; so that the conditions for
1032
use are (1 ) that the judge shall consider him hos-
tile, and (2) that the judge shall also give leave,
which he need not do even though the witness
is hostile; Cockbum, C. J., not "altogether
assenting") ; 1858, Reed v. King, 30 L. T. R.
290 (a prior conversation with the offering party's
attorney; excluded on obscure grounds); 1858,
Faulkner v. Brine, 1 F. & F. 254, Lord Camp-
bell, C. J. (permitting the question, but not
clearly specifying the conditions) ; 1 859, Dear v.
Knight, ib. 433, Erie, J. (same) ; Martin v. Ins.
Co., ib. 505, Wightman, J. (same) ; but the prac-
tice in all three cases seems to be to treat any
unfavorable statement on a material point as
" adverse," thus negati^ng the Interpretation of
" hostile " accepted in Greenough v. Eccles ;
1861, Jackson v. Thomason, 1 B. & S. 745 (allow-
ing the use of a series of letters ; Cockburn, C. J.,
intimating that a compulsory witness may still be
attacked as at common law) ; 1863, Ryberg v.
Smith, 32 L. J. P. M. & A. 112 (a useless pre
cedent, since the Judge Ordinary excluded the
evidence in entire forgetfulness of § 22) ; 1864,
CressweU v. Jackson, 4 F. & F. 3, Cockburn,
C. J.; 1865, Pound v. Wilson, ib. 301, Erie,
C. J. (both apparently construing " adverse " as
merely " different and unfavorable ") ; 1866, Coles
V. Brown, L. R. 1 P. & D. 70, Sir J. P. Wilde,
semble (adopting the distinction of Greenough v.
Eccles) ; 1867, Amstcll v. Alexander, 16 L. T. R.
N. s. 830, Bramwell, B. (referring to the interpre-
tation in Greenough v. Eccles, but apparently
disapproving it and treating " adverse " as mean-
ing " unfavorable") ; 1883, R. v. Little, 15 Cox
Cr. 319, Day, J. (the witness for the prosecution
in rape appearing adverse ; here the Stat. 28 &
29 Vict. c. 18, §3, extending the preceding one to
criminal cases, was applied) ; 1886, Rice w. How-
ard, L. R. 1 6 Q. B. D. 681, Grove and Stephen, JJ.
(treating " adverse " as equivalent to " hostile,"
and leaving the determination of the fact wholly
with the trial Judge) ; 1888, Parnell Commis-
sion's Proceedmgs, llth, 21st, 27th days, Times
§§ 875-918]
IMPEACHING ONE'S OWN WITNESS,
905
In the United States,^ fortunately, only a few jurisdictions have adopted
the English statute. But the variety of attitude in the different jurisdic-
Rep. pt. 3, pp. 140, 146, pt. 6, p. 94, pt. 7, pp.
181 ff., 212 (the statute does not seem to have
been referred to at all ; here extrinsic testimony
was received to show surprise, but not to dis-
credit) ; Canada : Dom. Crim. Code 1892, § 699
(like Eng. St. 18.54, c. 125, § 22) ; B. C. Rev. St.
1897, u. 71, §33 (lilie Eng. St. 1854, c. 125, § 22) ;
N. Br. Cons. St. 1877, c. 46, § 19 (like Eng. St.
18.54, c. 125, § 22) ; 1862, Davidson v, Arseneau,
5 All. N. Br. 289, semble (Melhnish v. Collier
approved) ; Newf. Cons. St. 1892, c. 57, § 17
(like Eng. St. 18.54, c. 125, § 22) ; N. Sc. Rev.
St. 1900, c. 163, § 43 (like Eng. St. 1854, c. 125,
§ 22) ; Ont. Rev. St. 1897, c. 73, § 20 (like Eng.
St. 18.54, c. 125, § 22) ; 1881, Dunbar v. Meek,
32 U. C. Q. B. 195, 213 (statute applied) ; P. E.
I. St. 1889, c. 9, § 15 (" he may contradict him by
other evidence, or, by leave of the judge in case
the witness shall in the opinion of the judge
prove adverse, prove that he has made at other
times," etc., as in Eng. St. 1854, c. 125, § 22 ;
this corrects the anomalous wording of the Eng-
lish statute).
' The citations ante, § 761 (refreshing recol-
lection by asking about prior testimony), should
he compared with the following : Alabama :
1829, Winston v. Moseley, 2 Stew. 137, semble
(excluded) ; 1853, Campbell t'. State, 23 Ala. 44,
76 (after examining the authorities, admits the
question to the witness, to discredit ; but leaves
undecided the admissibility of outside evidence );
1874, Hemingway u. Garth, 51 id. .530 ("It is
not an objection to such evidence that it has a
tendency to impeach the witness"; admitting
a question to tlie witness) ; 1892, Thompson v.
State, 99 id. 173, 175, 13 So. 753 (refreshing
memory by calling attention to report of former
testimony, allowed) ; 1892, Louisville & K. R.
Co. V. Hurt, 101 id. 34, 43, 13 So. 130 (questions
as to former testimony, allowed to refresh
memory) ; 1896, Feibelman v. Assur. Co., 108 id.
180, 19 So. 540 (admitting the question to stimu-
late recollection, after unfavorable testimony) ;
1898, Thomas v. State, 117 id. 178, 23 So. 665
(allowed on cross-examination "to show sur-
prise," in spite of incidental discrediting ; Cole-
man, J., diss.) ; 1900, Schieffelin v. Schielielin,
127 id. 14, 28 So. 687 (allowable in case of sur-
prise or to refresh memory) ; Alaska : C. C. P.
1900, § 667 (like Or. Annot. C. 1892, § 838) ;
Arkansas: Stats. 1894, § 2958 (may show "that
he has made statements different from his pres-
ent testimony ") ; 1884, Ward v. Young, 42 Ark.
543, 553 (statute applied); California: C. C. P.
1872, § 2049 ("The party producing a witness
. . . may also show that he has made at other
times statements inconsistent witli his present
testimony ") ; 1874, People v. Jacobs, 49 Cal. 384
(the te.stimony not being hostile, but merely
falling short of what was expected, questions as
to former statements were allowed, but outside
evidence was excluded; intimating that for a
witness unexpectedly hostile the evidence would
be received"); 1889, People v. Bushton, 80 id.
161, 22 Pac. 127, 549 (former testimony at a
coroner's inquest read over to the witness, and
then, on his denial, allowed to he proved; no
cases cited) ; 1891, People v. Wallace, 89 id.
158, 163, 26 Pac. 650 (same as People v. Jacobs
in facts ; outside evidence of prior declarations
excluded, since they would " enable the party
to get the naked declarations of the witness
before the jurv as independent evidence ") ;
1892, People v. Mitchell, 94 id. 550, 556, 29 Pac.
1106 (same as People v. Jacobs, in facts; but
even the question was not allowed, by a misun-
derstanding of the Jacobs ruling) ; 1893, People
V. Kruger. 100 id. 523, 35 Pac. 88 (rule of sur-
prise applied); 1894, /Je Kennedy, 104 id. 429,
431, 38 Pac. 93 (like People v. Wallace) ; 1895,
Hyde v. Buckner, 108 id. 522, 41 Pac. 416 (ad-
mitting outside testimony in case of surprise) ;
1896, People v. Crespi, 115 id. 50, 46 Pac. 863
(excluded, because offered as a substitute for
testimony and not merely to show surprise) ;
1897, People v. Durrant, 116 id. 179, 48 Pac. 75
(reading from former testimony, allowed) ; 1 897,
Thiele v. Newman, ib. 571, 48 Pac. 713 (outside
testimony, allowed, in case of surprise) ; Coh-
rado : 1889, Babcock v. I'eople, 13 Colo. 519, 22
Pac. 813 (excluding outside testimony, but admit-
ting the question to stimulate recollection ; see
quotation ante, § 904) ; Columbia (District) ; Code
1901, § 1073 a, as contained in U. S. St. 1902,
c. 1329 (when a party producing a witness has
been " taken by surprise by the testimony of
such witness," the Court may in discretion allow
the party to prove " for the purpose only of
affecting the credibility of the witness, that the
witness has made to such party or to his attorney
statements substantially variant from his sworn
testimony about material facts in the cause,"
upon due warning as to the " circumstances of
the supposed statement " and an opportunity to
explain); 1894, Weaver v. B. & 0. R. Co., 3 D.
C. App. 436, 448 (prior testimony, not allowed to
be asked for on cross-examination ; partly on
the ground of the trial Court's discretion, partly
on other, mixed grounds; general principle of
surprise conceded, at least so as to permit cross-
examination to such matters) ; 1895, Stearman
V. li. Co., 6 id. 46, 51 (refreshing his recollec-
tion by reading aloud to him, in the jury's
presence, his former affidavit, held properly re-
fused ") ; Connecticut : 1896, Wheeler v. Thomas,
67 Conn. 577, 35 Atl. 499 (excluded); 1902,
Carpenter's Appeal, 74 id. 431, 51 Atl. 126 (al-
lowable in the discretion of the trial Court,
where the party is surprised) ; Delaware : 1899,
State V. Wright, 2 Pen. 228, 45 Atl. 395
(may "contradict his own witness when taken
by surprise"); 1899, State v. Quinn, ib. 339,
45 Atl. 544 (admissible where surprise is sug-
gested); Florida: Rev. St. 1892, § 1101 (a party
" may, in case the witness prove adverse, con-
tradict him by other evidence, or prove that he
has made at other times a statement inconsist-
ent with his present testimony"); 1899, Mer-
cer V. State, 41 Fla. 279, 26 So. 317 (witness to
immaterial matter cannot be " adverse ") ; 1903,
Bryan v. State, — id. — , 34 So. 243 (statute ap-
plied ; whether a witness is " adverse," is much m
1033
§905
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
tions and the indiscriminate citation of rulings from other Courts, together
with the indecision of the earlier English precedents, has tended to produce
the trial Court's discretion) ; 1903, Sylvester v.
State, — id. — , 35 So. 142 (prior statements of
a witness not appearing hostile, not admitted to
impeach ; semble, admissible to refresh memory) ;
Georgia: Code 1895, § 5290, Cr. C. § 1024 (im-
peachment, in general, allowable " where he
can show to the Court that he has been entrapped
by the witness by a previous contradictory
statement"); statute applied in the following
rulings: 1874, McDaniel v. State, 53 6a. 253;
1878, Garrett v. Sparks, 60 id. 582, 536 ; 1881,,
Cox V. Prater, 67 id. 588, 593 ; 1891, Dixon v.
State, 86 id. 754, 13 S. E. 87; Hawaii: Civil
Laws 1897, § 1421 ("in case the witness shall in
the opinion of the Court . . . prove adverse,"
the party producing him "may by leave of such
Court or other person prove that he has made at
other times a statement inconsistent with his
present testimony ") ; 1898, Kwong Lee Wai v.
Ching Sai, 1 1 Haw. 444, 448 (in case of surprise,
the witness may be asked aliont a prior incon-
sistent statement, and extrinsic proof of it may
be made); Idaho: Rev. St. 1887, §6080 (like
Gal. C. C. P. § 2049) ; 1900, State v. Corcoran,
7 Ida. 220, 61 Pae. 1034 (statute applied) ; Indi-
ana: Rev. St. 1897, § 520 (party may "in all
cases contradict him ... by showing that he
has made statements different from his present
testimony ") ; the original Civil Code section
contained a similar provision; 1861, Judy v.
Johnson, 16 Ind. 371; 1862, Hill v. Goode, 18 id.
207, 209; but the Criminal Code at that time
lacked such a provision : 1860, Quinn u. State,
14 Ind. 589 (applying the rule of exclusion to
criminal cases) ; 1870, Howard v. State, 32 id.
478 (cross-examination only, allowed, to "re-
fresh the memory of the witness and give him
the opportunity to set the matter right ") ; this
lack, in criminal cases, was supplied by Rev. St.
1881, § 1796; and the statutory rule has since
been applied as follows : 1883, Hull v. State, 93
Ind. 128, 132 (excluded, where the witness
simply fails to make the desired assertion) ; 1888,
Conway «. State, 118 id. 482, 488, 21 N. E. 285
(" the only limitation is that ... he has given
testimony prejudicial to the party"); 1890,
Miller » Cook, 124 id. 101, 104, 24 N. E. 577
(like Hull V. State) ; 1889, Crocker v. Agen-
broad, 122 id. 585, 24 N. E. 169 ; 1895, Blough
V. Parry, 144 id. 463, 40 N. E. 70 (like Hull v.
State);' 1901, Adams v. State, 156 id. 596, 59
N. B. 24; (statute applied) ; Iowa: 1886, Hum-
ble V. Shoemaker, 70 la. 223, 226, 30 N. TV. 492
(question allowed, to refresh recollection and
induce correction) ; 1888, State v. Cummins, 76
id. 133, 135, 40 N. W. 124 (question allowed, to
refresh recollection) ; 1892, Hall o. R. Co., 84 id.
311, 315, 51 N. W. 150 (question allowed, to re-
fresh his recollection, to allow him to make a
correction, and " to show that it has surprised
the party who called him " ; but no outside testi-
mony allowable) ; 1896, Spaulding v. R. Co., 98
id. 205, 67 N. W. 227 (question as to testimony
at a former trial, admitted "to test and quicken
his recollection, and give him an opportunity to
correct his testimony ") ; 1896, Hall v. Hanson,
99 id. 698, 68 N. W. 922 (apparently allowing
the witness to be questioned, but rejecting out-
side testimony) ; 1894, Smith v. Dawley, 92 id.
312,60N.W.625(excludiug outside testimony ) ;
Kansas: 1882, Johnson v. Leggctt, 28 Kan. 590,
605 (the trial Court " may, when it thinks the
interests of justice require, permit a party to
show that he is unexpectedly mistaken in the
testimony of any witness, that he had good reason
to expect other testimony, and what such other
testimony would be ") ; 1886, St. Louis & S. F.
R. Co. V. Weaver, 35 id. 412, 431 (admitted, in
discretion, by outside testimony) ; 1892, State v.
Sorter, 52 id. 531, 34 Pac. 1036 (admitted);
Kentucky: C. C. P. 1895, § 596 (allowed uucou-
ditionaliy) ; applied in the following cases : 1859,
Champ V. Com., 2 Mete. 17, 23 (here the state-
ment was excluded, because the witness had
simply failed to allude to the matter on the
stand); 1876, Blackburn v. Com., 12 Bush 181,
184 ; 1892, Wren v. E. Co., — Ky. — , 20 S. W.
215 (admitted); 1896, Pittsburg C. C. & St. L.
R. Co. ». Lewis, — id. — , 38 S. W. 482, sem-
hie (admitted, to refresh recollection) ; 1901, Felt-
ner v. Com., — id. — , 64 S. W. 959 (prior
statements excluded; opinion obscure); 1903,
Mosley v. Com., — id. — , 72 S. W. 344 (prior
statements held admissible, under C. C. P. § 596,
but not as substantive evidence) ; Louisiana :
1876, State v. Thomas, 28 La. An. 827 (ex-
cluded) ; 1885, State v. Simon, 37 id. 569 (ad-
mitted, where it was incidental and the party
was taken by surprise); 1886, State v. Boyd,
38 id. 105 (admissible, where the witness is un-
willing, semble ; none of the three cases consider
the rule carefully) ; 1895, State v. Johnson, 47
id. 1225, 17 So. 789 (admissible, in case of sur-
prise) ; 1895, State v. Vickers, ib. 1574, 18 So.
639 (cross-question only admissible, in case of
surprise and to stimulate recollection) ; 1900,
State V. Robinson, 52 id. 616, 27 So. 124 (ques-
tion as to former testimony, excluded on the
facts ; principle obscure) ; Maine : 1840, Dennett
V. Dow, 17 Me. 19, 22 (excluded) ; 1847, Cham-
berlain V. Sands, 27 id. 458, 466 (same) ; Mary-
land : 1807, De Sobry w. De Laistre, 2 H. & .1.
219 (a deposition abroad de bene taken by de-
fendant, allowed to be contradicted by defendant
by letters to him from the opponent); 1821,
Queen v. State, 5 H. & J. 232 (admitted) : 1839,
Franklin Bank v. Navig. Co., 11 G. & J. 36
(excluded) ; 1877, Sewell i>. Gardner, 48 Md. 178,
183 (where the party was misled, he may " con-
tradict the witness' statement by his own or
other testimony " ; here he was not misled) ;
Massachusetts: The common-law rulings were
here inclined to a radical exclusiou : 1852,
Com. V. Starkweather, 10 Cush. 59 (exclusiou
of both question and outside evidence) ; 1855,
Com. V. Welsh, 4 Gray 535, semble (same) ;
1858, Com. V. Hudson, 11 id. 64 (same, even
where the question was asked on cross exam-
ination after the opponent had made the wit-
ness his own) ; 1867, Adams v. Wheeler, 13 id.
67 (excluding statements which " can have no
effect but to impair the credit of the witness
1034
§§ 875-918]
IMPEACHING ONE'S OWN WITNESS.
905
confusion in our law, even within the rulings of the same jurisdiction.
The sound and simple remedy would be by statute to abolish all limitation
with the jury " ; reversing the question of ad-
missibility to refresh recollection or in case of
surprise by a hostile witness). But in 1869, by
statute (c. 425 ; Pnb. St. 1882, c. 169, § 22, Key.
L. 1902, c. 175, § 24; like Cal. C. C. P. § 2049,
iisiiig "proce" instead of "show"), the use of
the evidence was freely permitted ; applied in the
following rulings: 1869, Ryerson v. Abington,
102 Mass. 531; 1873, Braunon v. Hursell, 112
id. 63, 70; 1875, Day v. Cooley, 118 id. 524,
526; 1877, Force c. Martin, 122 id. 5; 1877,
Brooks V. Weeks, 121 id. 433 (pointing out
that the party need not show surprise) ; 1882,
Com. v. Donahoe, 133 id. 407; 1899, Knight v.
Eotbschild, 172 id. 546, 52 N. E. 1062; Michi-
gan : 1895, People v. Case, 105 Mich. 92, 62
N. W. 1017 (opinion obscure; cross examination
to contrary statements in a deposition read to
the witness, allowed) ; 1895, People v. O'Neill,
107 id. 556, 65 N. W. 540 (calling the attention
of hostile witnesses to their testimony before
the grand jnry to refresh their memories, al-
lowed) ; 1896, Dillon v. Pinch, 110 id. 149, 67
N. W. 1113 (the question may be put, in the
trial Court's discretion) : 1897, People u. Gil-
lespie, 111 id. 241, 69 N. W. 490 (question as to
a former contradictory ailidavit allowed, to
" induce the wituess to state what she knew ") ;
1898, Gilbert v. R. Co., 116 id. 610, 74 N. W.
1010 (in discretion, the question may be put to
refresh recollection); 1899, McGee v. Banm-
gartner, 121 id. 287, 80 N. W. 21 (inconsistent
affidavit admitted, and witness' explanation
that it was obtained by threats contradicted by
the testimony of the drawer of the affidavit) ;
1902, People v. Payne, — id. — , 91 N, W.
739 (cross-examination to the contrary state-
ment, allowed, "not as substantive proof, but
as explaining why he had called him"); 1903,
Westphal v. R. Co., — id. — , 96 N. W. 19
(" a party will not be permitted to impeach his
own witness by showing contradictory state-
ments"; none of the foregoing cases cited);
Minnesota: 1867, State v. John.son, 12 Minn.
476, 486 (question allowable " either to lead the
witness to correct her testimtmy, or to save
the party calling her from being sacrificed by
the witness"); 1890, State .'. Tall, 43 id. 273,
275, 45 N. W. 449 (question admissible " not
for the purpose of discrediting the witness, but
svi a proper means of inducing him to tell the
truth," provided he is hostile); 1893, Selover
V. Bryant, 54 id. 434, 56 N. W. 58 (prior self-
contradiction, admissible, in case of surprise, in
the trial Court's discretion ; Gilfillan, C. J.,
diss); Mississippi: 1881. Moore v. R. Co., 59
Miss. 243, 248 (admissible, where it appears
that tlie party was surprised; here the record
indicated the contrary, and nothing was shown
to remove this indication); 1886, Dunlap v.
Richardson, 63 id. 447, 449 (admissible where
" deceived or misled by fraud or artifice prac-
tised on him by the witness") ; 1893, Chism v.
State, 70 id. 742, 12 So. 852 (approving the pre-
ceding two); 1898, Bacot v. Lumber Co., —
id. — , 23 So. 481 (allowed, where there was
VOL. II. — 3
1035
hostility on cross-examination and also sur-
prise) ; nevertheless, under the doctrine of (8),
§ 904, ante, these statements may be excluded :
1881, Moore v. R. Co., 59 Miss. 243,248 (failure
to testify to certain injuries ; former assertions
of the injuries excluded, as there was nothing
to im^eacli ; whether such assertions could be
referred to to refresh the memorv, undecided) ;
1S93, Chism v. State, 70 id. 742, 12 So. 852 (the
witness professed to know nothing of the kill-
ing; former assertions about it excluded, be-
cause " the first and essential thing is that the
testimony of the witness must be adverse ") ;
Missouri: 1885, Dunn i'. Dunnaker, 87 Mo. 597,
600 (admissible only where " the party is en-
trapped" into offering a witness who disap-
points him); 1896, State v. Burks, 132 id. 363,
34 S. W. 48 (not admissible " unless the party
is entrapped into offering" a witness who proves
faithless; shortly termed, "a surprise ") ; 1899,
Feary v. O'Neill, 149 id. 467, 50 S. W. 918 (not
allowed where there was no surprise or mislead-
ing) ; 1903, State v. Coats, 174 id. 396, 74 S. W.
864 (defendant's witness' memory allowed to be
refreshed by reading her prior contradictory
testimony); Montana: C. C. P. 1895, § 3377
(like Cal. C. C. P. § 2049) ; 1898, State v.
Bloor, 20 Mont. 574, 52 Pac. 611 (statute ap-
plied; the suggestion of the defendant's counsel
that the statute violated the constitutional guar-
antee of due process of law was of course re-
pudiated; New Hampshire: 1870, Hurlburt v.
Bellows, 50 N. H. 105, 116 (admissible in case
of surprise and absence of collusion or bad
faitli, if the witness is adverse); 1885, Whit-
man V. Morey, 63 id. 448, 456, 2 Atl. 899
(same) ; New Jersey : 1840, Brewer v. Porch,
17 N.J. L. 377, 379 (excluded); 1897, Kohl v.
State, 59 id. 445, 36 Atl. 931, 37 Atl. 73 (ex-
cluded); New Mexico: Comp. L. 1897, § 3026
("In case the witness, in the opinion of the
judge, proves adverse, such party may prove
that the witness made at other times a state-
ment inconsistent with his present testimony ") ;
New York: 1830, Lawrence v. Barker, 5 Wend.
301, 305 (Savage, C. J., allowing "great latitude
of examination " in certain cases, but not speci-
fying the use of self-contradictory statements) ;
18+7, People v. Safford, 5 Den. 112, 116 (ex-
cluded, on the theory that to contradict by show-
ing error " does by no means involve the witness
in the crime of perjury, but may be reconcil-
able with the most perfect integrity and good
faith," while a prior self-contradiction necessa-
rily involves an "impeachment") ; 1850, Thomp-
son r. Blanchard, 4 N. Y. 303,311 (excluded);
1873, BuUard v. Pearsall, 53 id. 230 (excluded,
" when the sole object of such proof is to dis-
credit the witness " ; thus extrinsic proof is ab-
absolutely excluded, while cross-examination is
possible for the purpose of refreshing recollection
and obtaining explanation or correction ; allow-
able, therefore, on cross-examination only ; but
the ruling on the facts is confused ; the form of
question intended to be sanctioned being appar-
ently, " whether he had not made a prior state-
905
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
on this kind of evidence ;
taken.
ment to snch-and-such an effect") ; 1874, Coulter
V. Express Co., 56 id. 585, 588 (exdnded, " when
it is only material as it bears npon credibility " ;
but conceding an exception "on the ground of
surprise, as contrary to " just expectations, or of
deceit of the opponent ; citing iWelhuish v. Col-
lier, but misunderstanding it) ; 1887, Becker v.
Koch, 104 id. 394, 402, 10 N. E. 701 (prior self-
contradictory statements absolutely inadmissible
to impeach ; as matter of law, " not open to dis-
cussion"; though, as a policy, apparently ques-
tioned ; yet, in this very case, curiously enough,
the witness' self-contradictory statements on the
direct examination were allowed to be employed,
and the right conceded " to show that a portion
of the evidence of your own witness is untrue,
by comparing it with another portion of the
evidence of the same witness and with the other
facts in the case"); 1888, Cross v. Cross, 108 id.
628, 15 N. E. 333 (following Becker i>. Koch,
and allowing a husband, called by the wife in a
suit for divorce based on abandonment, to be
discredited, as to his denials of intent to abandon,
by " the facts aud circumstances of his conduct,
his letters and declarations," i. e. allowing freely
the use of prior self-contradictions, but putting
it on the ground of the witness being really
hostile and interested; erroneously fathering
this view upon the case of Becker w. Koch) ;
1889, People v. Kelly, 113 id. 647, 651, 21 N. E.
122 (former testimony; Bnllard v. Pearsall ap-
. proved ; yet here the former statement was not
contradictory, but merelv supplied an omission) ;
1890, De Meli v. De Meli, 120 id. 485, 490, 24
N. E. 996 (approving Becker v. Koch); 1897,
People V. Burgess, 153 id. 561, 47 N. E. 889,
semb/e ^excluded); North CaroUni: 1796, State
V. Norns, 1 Hayw. 429, 437 (excluding the evi-
dence in civil cases, but admitting it in criminal
■ cases, because of the possibility of imposing on
ithe State's attorney) ; 1806, Sawrey v. Murrell,
■-2 id. 397, semble (same) ; 1849, Neil v. Childs, 10
Ired. 195, 197, semble, contra (left undecided);
1851, Hice v. Cox, 12 id. 315, semble (same) ; 1883,
State V. Taylor, 88 N. C. 69B (outside testimony
excluded) ; North Dakota : 1895, George v. Trip-
lett, 5 N. D. 50, 63 N. W. 891 (question allow-
able, where surprised by a hostile witness ; as to
outside testimonv, point reserved) ; Ohio: 1889,
Hurley v. State, 46 Oh. 320, 322, 21 N. E.
645 (admissible only on cross-examination ; not
" merely to impeach the witness," bnt " for the
purpose of refreshing his recollection and induc-
ing liim to correct his testimony or explain his
apparent inconsistency," provided the party is
surprised by " unexpected adverse testimony " ;
the precedents are carefully examined) ; Okla-
homa : 1900, Drury v. Terr., 9 Okl. 398, 60 Pac.
101, semble (inadmissible); Oregon: C. C. P.
1692, § 8.38 (like Cal. C. C. P. § 2049); 1890,
Langford n. Jones, 18 Or. 307,325,22 Pac. 1064
(the witness professed ignorance of the subject ;
former assertions excluded, when offered by out-
side evidence, because there was no testimony to
contradict ; but the witness may be asked about
such statements, to refresh his memory) ; 1896
State a. Steeves, 29 id. 85, 43 Pac. 94"?, sejnble
and this step has in some States already been
(here the witness merely failed to prove what was
expected ; opinion obscnre) ; 1898, State v. Bart-
mess, 33 id. 110, 54 Pac. 167 (witness hostile;
self-contradictions allowed to be shown by others ;
in any case, refreshment of memory by cross-
examination after unexpected testimony is
allowed) ; 1901, State v. McDaniel, 39 id. 161,
65 Pac. 520 (admissible under C. § 838) ; Pennsi/l-
vania : 1781, Eapp v. Le Blanc, I Dall. 63, semble
(excluded) ; 1825, Cowden v. Reynolds, 12 S. &
K. 281, 283 (admitted) ; 1835, Craig v. Craig, 5
Rawle 91, 95, semble (same) ; 1838, Stockton v.
Demuth, 7 Watts 39, 41 (excluded, not citing
this case); 1838, Smith v. Price, 8 id. 447 <same) ;
1843, Bank of N. Liberties v. Davis, 6 W. & S.
285, 288 (admitted, citing the first case only) ;
1848, Harden v. Hays, 9 Pa. St. 151, 159 (ad-
mitted) ; 1866, Stearns v. Bank, 53 id. 490 (ex-
cluded, two judges dissenting) ; 1 892, Fisher v.
Hart, 149 id. 232, 24 Atl. 225 (cross-examination
to prior contradictory statements, excluded, ap-
parently because the witness had shown no
hostile bias); 1892, McNerney !'. Reading, 150
id. 611, 615, 25 Atl. 57 (the witness being uu-
willing and his testimony a surprise, cross-exam-
ination to contradictory statements was held
allowable in discretion) ; 1898, Morris v. Guffey,
188 id. 534, 41 Atl. 731 (allowed, on the facts);
South Carolina : 1884, Bauskett v. Keith, 22 S. C.
187, 199 (excluded) ; 1895, State v. Johnson,
43 id. 123, 20 S. E. 988 (adhering to the pre-
cedent, hut allowing the question to be asked
to induce correction); Tennessee: 1848, Story
V. Saunders, 8 Humph. 663, 666 (excluded)';
Texas: C. Cr.P. 1895, § 795 (allowed ; see quo-
tation ante, § 900) ; 1894, Ermn v. State, 32
Tex. Cr. 519, 24 S. W. 904 (excluded, where on
the stand the witness failed to aflBrm a decided
fact) ; 1898, Ross v. State, — id. , 45 S. W.
808 (prior self-contradiction apparently allowable
in case of surprise) ; 1900, Spangler v. State, 41
id. 424, 55 S. W. 326 (former testimony contain-
ing a prior self-contradictory statement, held
inadmissible, where it merely affirms what the
witness has failed to testify to on the stand ; bnt
the witness may be shown the prior testimony
so as to recall the fact to his mind, if possible) ;
1900, Brown v. State, 42 id. 176, 58 S. W. 131
(former testimony held to be improperly used
on the facts ; Spangler's Case approved) ; 1903,
Barnard v. State, — id. , 73 S. W. 957 (statute
applied ; surprise is not required) ; United States :
1884, The Charles Morgan, 1 15 U. S. 69, 77, 5
Sup. 1172; 1893, Hickory «. U. S., 151 id. 303,
309, 14 Sup. 334 (questioning allowed to refresh
recollection and induce a correction ; outside
evidence intimated to be allowable in the discre-
tion of the trial Court where the witness un-
expectedly proves hostile; for other Federal
decisions see ante, § 761); 1893, St. Clair v.
U. S., 154 id. 134, 150, 14 Sup. 1002 (" The rule
is correctly indicated by Greenleaf, when he says
[§444], . . . [The party may] show that the
evidence has taken him by surprise and is con-
trary to the examination of the witness preparar
tory to the trial"); 1899, Swift v. Short, 34
C. C. A. 545, 92 Fed. 567 (" ander some circum-
1036
875-918]
IMPEACHING ONE'S OWN WITNESS.
907
§ 906. Same : (5) Rules for Prior Warning to the Witness, etc. ; Rule for
Party's Admission. (1) So far as impeachment by prior self-contradiction is
permitted, under any of the foregoing doctrines, the ordinary rules for that
mode of impeachment become applicable (^Jos^, §§ 1017-1046). In particu-
lar, the witness must be asked, before extrinsic testimony is adduced, whether
he made the statement ; ^ and the statement, however proved, has only an
impeaching effect and is not independent testimony.^
(2) So far as impeachment by prior self-contradiction is under any of the
foregoing doctrines prohibited, the prohibition does not apply to a party's ad-
mission, which is receivable as such, even though it be also a self-contradic-
tion of himself as witness.^
§ 907. Contradiction by Other Witnesses, not forbidden. The process of
contradiction by other witnesses {post, § 1000) has for its object (1) to de-
monstrate an error of the first witness, and (2) to argue that the commission
of this error shows him capable of making other errors. The second step of
the argument is one that would not usually be resorted to against one's own
witness, though such occasions may arise ; but in both aspects the permission
to employ such opposing evidence is now fully accorded, and this permission,
even to the extent of only the first step in the argument, signifies the over-
throw of the earlier notion that a party is bound by his witness' statement or
guarantees his credibility. This notion, as already observed (ante, § 896), is
purpose of contradicting the witness ") ; 1902,
Gordon v. Fuukhouser, 100 Va. 675, 42 S. E.
677 (statute applied ) ; West Virginia: 1900, State
V. Hatfield, 48 W. Va. 561, 37 S. E. 626 (admitted
to show the good faith of the party ofterin<r);
Wisconsin : 1892, Kichards v. State, 82 Wis.
172, 180, 51 N. W. 652 (excluded; "this rale is
elementary ") ; 1898, Sutton v. R. Co., 98 id. 157,
73 N. W. 993, semble (allowable in discretion,
for an adverse witness) ; 1898, Collins v. Hoehle,
99 id. 639, 75 N. W. 416 (self-contradictions ex-
cluded, both on cross-examination and by others);
Wi/ominff : 1895, Arnold v. State, 5 Wyo. 439,
40 Pac. 967 (question admissible, for a hostile
witness, to stimulate recollection, even if dis-
credit incidentally follows); St. 1895, c. 68 (a
party may, as to his own witness, show " that he
has made at other times statements inconsistent
with his present testimony, and this rule should
apply to both civil and criminal cases ") ; 1903,
Horn D. State, — Wyo. , 73 Pac. 705 (statute
applied).
^ Post, § 1028. The statutes cited ante,
§ 905, provide usually (but superfluously) for '
this.
2 1825, Ewer V. Ambrose, 3 B & C. 746
(where a prior deposition was offered, and the
trial judge left it to the jury whether they would
"give credit to S. B.'s answer in Chancery or
to his testimony given in Court " ; Holroyd, J.,
pointed out that the contradictory statement
could not be used "to prove substantively" its
allegation); 1877, Brooks v. Weeks, 121 Mass.
433; 1847, People v. SafEord, 5 Den. 112, 117;'
and cases cited post, § 1018.
3 Post, § 1051.
stances . . the party so deceived may impeach
the witness to the extent of showing " prior con-
tradictory statements) ; 1900, Clary v. Hardee-
ville Brick Co., 100 Fed. 915 (allowed, where
the opponent's witness has not been allowed in
chief to be cross-examined to self-contradictory
statements under the rule of § 1885, post, and
therefore is allowed to be recalled by the cross-
examiner during his own case for that pur-
pose); 1900, Hays ?'. Tacoma R. & P. Co., 106
Fed. 48 (allowed, in case of surprise) ; i901,
Tacoma R. & P. Co. v. Hays, 49 C. C. A. 1 15,
110 Fed. 496 (trial Court's discretion conceded;
following Hickory v. U. S.) ; Vermont : 1 862,
Fairchild v. Bascomb, 35 Vt. 398, 405, 417 (ex-
cluded) ; 1883, Cox V. Eayres, 55 id. 24, 27, 35
(excluded ; there being no discretion for the trial
Court) ; rule changed by St. 1 886, c. 49, now
Stats. 1894, § 1247 (allowable "by leave of
Court," " when in the opinion of the Court a
witness produced by a party is adverse ") ; ap-
plied in the following cases: 1890, Hurlburt v.
Hurlburt's Estate, 63 id. 667, 670, 22 Atl. 850 ;
1891, Good V. Knox, 64 id. 97, 99, 23 Atl.
520 ; 1 897, State v. Slack, 69 id. 486, 38 Atl. 31 1 ;
1901, Davis w. Buchanan, 73 id. 67, 50 Atl. 545 ;
(State V. Slack followed); 1901, McGovern v.
Smith, ib. 52, 50 Atl. 549 (similar); Virginia:
St. 1899-1900, c. 117, § 1 (a party may " in case
the witness shall in the opinion of the Conrt prove
adverse, contradict him by other evidence, or by
leave of the Court prove that he has made at
other times a statement inconsistent with his
present testimony. ... In every such case the
Court, if requested by the other party, shall
instruct the jury not to consider the evidence
of such inconsistent statements, except for the
1037
907
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
found as late as the 1700s ;i but by the end of that century the doctrine
was clearly laid down that one's own witness could always be contradicted
by others and his error shown ; ^ and this became established law (though
not without an occasional trace of the older notion ^) by the first half of
the 1800s.* In 1854, however, came the statute (quoted ante, § 905) in which
the anomalous condition was inserted that the witness should be deemed
adverse by the judge. The limitation thus blunderingly put upon the right
to contradict has however been practically read out of the statute.*
In the United States, except for an occasional earlier ruling,^ the same
result has been reached at common law, though statutes have occasionally
confirmed it.'^
' The earlier eases usually speak in general
terms of a prohibition against discrediting one's
own witness; but it seems likely that this in-
cluded a prohibition even against prOTing his
error by other witnesses : 1 700, Adams v. Arnold,
12 Mod. 375 (" And here Holt [C. J.] would not
suffer the plaintiii to discredit a witness of his
own calling, he swearing against him ") ; 1722,
Byre, J., cited in Vin. Abr XII, 48, tit. Evidence
( " The party who produceth a witness cannot
examine to the discredit of such witness ") ; the
turning-point seems to be the following case :
1738, Rice v. Oafcfield, 2 Stra. 1095 (" It was
argued on behalf of the defendant that the
plaintiff could not be allowed to contradict his
former evidence," but it was answered that " if
there was any contradiction, it is no objection " ;
citing Pike o. Badraering, in L. C. J. Pratt's
time, unreported ; and the Court unanimously
received the evidence).
2 Ante 1767, Buller, Trials at Nisi Prius, 297
("But if a witness prove facts in a cause which
make against the party who called liim, yet the
party may call other witnesses to prove that
those facts were otherwise; for such facts are
evidence in tlie cause, and the other witnesses
are not called directly to discredit the first
witness, but the impeachment of his credit is
incidental and consequential only;") 1762,
Lowe V. JoUiffe, 1 W. Bl. 365 (.Mansfield, L.
C. J., and others ; error shown against a testa-
mentary witness to sanity ; no discussion and
no ruling).
» 1818, Richardson v. Allan, 2 Stark. 334,
Ellenborongh, L. C. J. (witness to the genuine-
uess of an indorsement; a second witness not
allowed, except the alleged indorser himself).
* 1825, Ewer v. Ambrose, 3 B. & C. 746
("the party is at liberty afterwards to make out
his own case by other witnesses") ; 1831, Brad-
ley V. Ricardo, 8 Bing. 57 ; 1832, Friedlander
V. Assur. Co., 4 B. & Ad. 193; 1834, Denman,
L. C. J., in Wright v. Beckett, 1 Moo. & Rob.
420 (" The case of Lowe v. JoUiffe would have
seemed to make an end of the antiquated no-
tion that a party cannot contradict his own wit-
Mess"); 1839, R. V. Ball, 8 C. & P. 745; 1850,
Melhuish v. Collier, 19 L. J. Q. B. 493 (pei- Cole-
ridge and Erie, JJ.); 1850, The Lochlibo, 14
Jur. 792, Dr. Lushington (referring to the com-
mon-law practice as " beyond all dispute, be-
yond all doubt"); 1858, Greenough u. Bccles, 5
C. B. N. s. 786, 28 L. J. C. P. 160 (speaking of
the law before 1854 as "clear").
* 185S, Greenongh v. Eccles, 5 C. B. n. s.
786; Cockburn, C. J., says: " Perhaps the better
way is to consider the second branch of the
section as altogether superfluous"; while the
majority of the Court, Williams and Willes. JJ.,
seem to reach the same result by defining " ad-
verse " as " hostile," in distinction from " un-
favorable," and then treating it as not impliedly
forbidding the greater by permitting the less,
and thus allowing contradiction on relevant
matters as sometliing " he may still do, if the
witness is unfavorable." The statute, however,
seems later to have been not so clearlv construed ;
1866, Coles V. Brown, L. R. 1 P. & D' 70, Sir J. P.
Wilde (an attesting witness was allowed to be
contradicted merely on the theory that he was a
compulsory witness) ; 1890, R. v. Dytclie, 17 Cox
Cr. 39, Hawkins, J. (four persons were convicted
for felonious wounding ; it was afterwards be-
lieved that these were innocent ; on the present
trial, the assaulted person having testified, on
cross-i'xamination, that the first four and not the
present defendants were the persons attacking
him, the prosecution was allowed to call those
four to show their alibi). In Canada, the Eng-
lish statute has been adopted literally (except in
Prince Edward Island), but has been construed
as in England: Dom. Crim. Code 1892, § 699;
B. C. Rev. St. 1897, c. 71, § 33; N. Br. Cons. St.
1877, c. 46, § 19; Newf. Cons. Kt. 1892, c. 57,
§ 17; N. Sc. Rev. St. 1900, c. 163, § 42; 1894,
Almon V. Law, 26 N. Sc. 340, 348 (contradiction
allowed ; the confusion of the statute being
noted ; Greenongh v. Eccles approved) ; Ont.
Rev. St. 1897, c. 73, §20; 1864, Robinson v.
Reynolds, 23 U. C. Q. B. 560, 563 (applying the
Ontario statute according to the opinion of
Williams, J., in Greenongh v. Eccles) ; 1900,
Stanley P. Co. v. Thomson, 32 Ont. 341 (llie
witness may be contradicted by others, called
not to discredit but to contradict, without leave
of the judge ; Greenongh r. Eccles followed) ;
P. E. I. St. 1889, c. 9, § 15 (quoted «nte, § 905).
° 1829, Winston v. Mo.seley, 2 Stew. 137 (ex-
cluded, except in case of surprise or of a com-
pulsorj witness) ; 1840, Hallett «. Walker, 1 Ala.
585, 588 (" may perhaps " be done) ; 1782, Rapp
V. LeBlanc, 1 Dall. 63, seinhle (excluded).
' The following ca,ses would undoubtedly be
followed in all jurisdictions where there are no
1038
§§ 875-918]
IMPEACHING ONE'S OWN WITNESS.
908
§ 908. Same : Contradictiou as involving Impeachment. It has been
noted {ante, § 897) that a chief reason for the victory of the newer notion
was the perception that without it one could not prove the facts of his case
if the first witness called were to testify untruly. Prom this point of view
the discrediting of the witness is regarded as incidental only (because inevi-
table) to this other and necessary right. Nevertheless, the discrediting of
the witness is also a legitimate use to be made of the evidence, if desired.
A demonstrated error on one point may be used to infer error by the same
witness upon other points.^ It follows, too, from the permission to discredit
express utterances ; some of the more recent
opinions, uselessly repeating, for the benefit of
careless brief-makerg, the rule of prior decisions,
have not been here inserted : Ala.: 1897, Jones
V. State, U5 Ala. 67, 22 So. 566 ; 1897, PhoeniK
Assur. Co. V. McArthur, 116 id. 6.59, 22 So. 903 ;
1898, Wadsworth i;. Dunnam, 117 id. 661, 23
So. 699; Alaska: C. C. P. 1900, § 667; Ark.:
Stats. 1894, § 29.58 ; Cal. : C. C. P. 1872, § 2049 ;
Colo.: 1889, Babcock w. People, 13 Colo. 521, 22
Pac. 817; 1892, Moffatt v. Tenney, 17 id. 189,
195, 30 Pac. 348; 1897, Brown v. Tourtelotte,
24 id. 204, 50 Pac. 195 ; Conn. : 1864, Olmstead
y. Wiusted Bank, 32 Conn. 278, 287 ; Ga.: 1849,
Merchants' Bank u. Kawls, 7 Ga. 191, 198; 18i5,
Burkhalter v. Edwards, 16 id. 593, 596; 1877,
Skipper i\ State, 59 id. 63,66; 1878, Garrett v.
Sparks, 60 id. 582, 585 ; 1887, HoUiugsworth v.
State, 79 id. 607, 4 S. E. 560 ; Haw. : Civ. L.
1897, § 1421; Ida.: Rev. St. 1887, § 6080;
///. ; 1865, Eockwood v. Poundstone, 38 111.
199; 1900, Highley v. Bank, 185 id. 565, 57
N. E. 436 ; 1903, IL S. Brewing Co v. Ruddy,
203 id. 306, 67 N. E. 799 (contradicting the de-
fendant's attorney, who on the call of the plain-
tiff had testified that he had not attempted to
suborn witnes.ses) ; Ind.: Rev. St. 1897, § 520;
1889, Crocker v. Agenbroad, 122 Ind. 585, 24
N. E. 169; 1900, Hanes v. State, 155 id. 112, 57
N. E. 704; Ind. Terr.: 1901, Bradburn v. U. S.,
3 Ind. T. 604, 64 S. W. 550; la. : 1866, Thorn
V. Moore, 21 la. 285, 290; 1880, Clapp v. Peck,
55 id. 270, 272, 7 N. W. 587 ; 1888, Gardner c.
Connelly, 75 id, 205, 39 N. W. 650 ; 1892, Smith
V. Utesch, 85 id. 381. 386, 52 N. W. 343 ; Kan.:
1901, Deering v. Cunningham, 63 Kan. 174, 65
Pac. 263; Ky.: C. C P., 1895, § 596; 1859,
Champ V. Com., 2 Mete. 17, 23 ; 1876, Black-
burn 0. Com., 12 Bush 181, 184; 1850, Young
V. Wood, 11 B. Monr. 123, 134; Me.: 1887,
State «. Knight, 43 Me. 11, 134; 18,54, Hall v.
Houghton, 37 Me. 41 1 , 413 ; Md. : 1839, Frank-
lin Bank v. Navig. Co., 11 G. & J. 36 ; 1843,
VColfe V. Hauver, 1 Gill 91; Mass.: 1826,
Brown v. Bellows, 4 Pick. 187, 194 (where a
part of the case was to prove the witness' in-
terest with the opponent, and his declarations to
that effect were admitted); 1834, Whitaker
I'. Salisbury, 15 Pick. 534, 544; 1852, Com.
V. Starkweather, 10 Cush. 59; 1859, Brolley v.
Lapham, 13 Gray 292,297; St. 1869, Pub. St.
1882, c. 169, § 22, Rev. L. 1902, c. 175, § 24;
Mich.: 1877, Snell v. Gregory, 37 Mich. 500;
1892, Pickard v. Bryant, 92 id. 430, 434, 52 N. W.
788 ; 1896, Darling v. Thompson, 108 id. 215, 65
N. W. 754 ; Minn. : 1892, Schmidt c^. Dunham,
50 Minn. 96, 52 N. W. 277 ; Miss. : 1859, Fairly
V. Fairly, 38 Miss. 280, 288; 1887, Madden y.
State, 65 id. 176, 3 So. 328 (that no promises
had been made to a State's witness, as he had
testified, allowed) ; Mo.: 1854, Brown v. Wood
19 Mo. 475; 1899, State v. Branch, 151 id. 622
52 S. W. 390; Mont.: C. C. P. 1895, §3377
N. H. .• 1849, Seavy v. Dearborn, 19 N. H. 355
N. J. : 1826, Skellinger v. Howell, 3 Halst. 310
1897, Thorp v. Leibrecht, 56 N. J. Eq. 499, 39
Atl. 361 (" either by his own examination and
the improbability of his own story " or by other
evidence); 1901, Ingersoll u. English, 66 N. J.
L. 463, 49 Atl. 737 ; N. Y. : 1804, Steinbach B.
Ins. Co., 2 Caines, 129, 131 ; 1830, Lawrence
V. Barker, 5 Wend. 301, 305 ("he may never-
theless prove the fact by another witness or may
show that the account given by the first witness
is incorrect"); 1834, Jackson v. Leek, 12 id.
105, 108; 1839, McArthur v. Sears, 21 id. 189,
192 (deposition) ; 1847, People v. Safford, 5
Den. 112, 117; 1850, Thompson v. Blanchard,
4 N. Y. 303, 311 ; 1873, Bullard v. Pearsall, 53
id. 230; 1874, Coulter v. ExpresiS Co., 56 id. 585,
588; 1877, Pollock v. Pollock, 71 id. 137, 152;
1887, Becker u. Koch, 104 id. 394, 402, 10 N. E.
701 (see post, § 1003) ; 1890, DeMeli v. DeMeli,
120 id. 485, 490, 24 N. E. 996; A^. C: 1840,
Spencer v. White, 1 Ired. 236, 239 ; 1845, Shel-
ton V. Hampton, 6 id. 216; 1851, Hice v. Cox,
12 id. 315; 1873, Wilson i\ Derr, 69 N. C. 137,
139; 1880, Strudwick v. Broduax, 83 id. 401,
403; 1884, Gadsbv v. Dyer, 91 id. 311, 314;
1886, M'Donald i. Carson, 94 id. 497, 503;
1892, Chester a. Wilhelm, HI id. 314, 316, 16
S. E. 229; 1895, Kendrick v. Dellinger, 117 id.
491, 23 S. E. 438; 1896, State v. Mace, 118 id.
1244, 24 S. E. 798 ; Oh. : 1889, Hurley v. State,
46 Oh. 320, 322, 21 N. E. 645 ; Or. : C. C. P.,
§ 838; 1900, State v. Mims, 36 Or. 315, 61 Pac.
888; Pa.: 1838, Stockton v. Demuth, 7 Watts
39, 41 ; 1843, Bank of N. Liberties v. Davis, 6
W. & S. 285, 287 ; 1866, Stearns v. Bank, 53
Pa. 490 ; S. C. : 1887, Wagener v. Mars, 27 S. C.
97, 98, 102, 2 S. E. 844; Z7. S. ; 1893, Hickory
V. U. S., 151 U. S. 303, 309, 14 Sup. 334 ; 1899,
Swift V. Short, 34 C. C. A. 545, 92 Fed. 567;
1899, Peters v. U. S., 36 C. C. A. 105, 94 Fed.
127 ; Wis. : 1877, Smith v. Ehanert, 43 Wis. 181 ;
1879, Wisconsin River L. Co. v. Walker, 48 id.
617, 4 N. W. 803; Wijo.: St. 1895, c. 68.
1 1831, Bradley v. Kicardo, 8 Bine 57 (Bos-
auquet, J. : " The difcrepancy may afford a fair
topic for counsel a.s to the degree of credit to
which the witness is entitled "). Contra : 1897,
Nathan v. Sands, 52 Nebr. 660, 72 N. W. 1030
1039
§ 908 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
a witness by other witnesses, that counsel, with or without offering other
witnesses, may argue that his own witness is in error.^ It is occasionally
said that he may not;^ but it is obvious that such a doctrine would simply
bring us back to the exploded notion that one is bound by the statements of
his own witness,
§ 909. Who is One's Own ■Witness; General Principle. Since the rule
forbids certain modes of impeaching one's own witness, the question con-
stantly arises whether a given witness falls within that category.
It is to be noticed, first, that the test for this purpose has nothing neces-
sarily in common with the test for the prohibition of leading questions.
Occasionally a tendency is found to confuse the two tests. But the latter
rests purely on the presumed mental condition of the witness. The object
of the rule is to prevent the supplying of suggestions of false testimony to a
witness who is disposed to take advantage of them {ante, § 769). He is
assumed to be friendly to the party putting him on the stand; but this is
only a provisional assumption ; and, accordingly, if he turns out to be hostile
to that party, the prohibition ceases {ante, § 774), and, conversely, if on cross-
examination by the other party, to whom he has been assumed to be hostile,
he turns out to be a friendly partisan, the prohibition applies equally on
cross-examination {ante, § 773). Thus the test for the prohibition of leading
questions is ultimately and essentially independent of the superficial circum-
stance whether originally one party or the other put him on the stand.
The present rule, on the other hand, must depend, to some extent at least,
upon that circumstance. The controlling consideration is not the temper of
the witness as being friendly or hostile, but the conduct of the party as hav-
ing dealt with the witness so as to make the witness his own. How to deter-
mine what dealings have this effect is by no means easy. The general rule
itself (against impeaching one's own witness) is so fraught with irrationality
that to apply it with rational deduction is almost impossible. A rule which
rests upon a fiction is apt to lead to mere quibbles when a detailed and con-
sistent development is attempted. The quiddities and meaningless distinc-
tions which occur in the present application serve more than anything else to
exhibit the arbitrary absurdity of the rule at large. In attempting to apply
it in the present connection, the test may be sought either in the superficial
features of the rule or in the supposed underlying reason of it :
{a) Superficially, the rule applies to a witness who has been put forward
by the party and used to supply testimony. By this test, if A calls the wit-
ness and obtains testimony, and B afterwards calls him, the rule applies alike
(contradiction forbidden where the sole purpose (" He may question the truth of his statements
was to discredit the witness) ; but this is anoma- of fact either by independent opposing evidence
lous, and may better be explained by the general or by inference or arguments drawn from the
rule against contradictious on collateral matters testimony"); 1887, McLean v. Clark, 31 Fed.
{post, § 1001). 501. 504.
2 1886, Mitchell v. Sawyer, U5 111. 650, 657, 3 1392, Claflin v. Dodson, 111 Mo. 195, 201,
H N. E. 109; 1864, Roberta v. Miles, 12 Mich. 19 S. W. 711 ; 1889, Dravo v. Fabel, 132 U. S.
296, 305; 1890, Webber «. Jackson, 79 id. 175, 487, 490, 10 Sup. 170; 1880, Tarsncy k. Turner,
179, 44 N. W. 591; 1892, GilfiUan, C. J., in 48 Fed. 818; 1892, Graves i;. Davenport, 50 id.
Schmidt 1;. Dunham, 50 Minn. 96, 52 N. W. 277 881, 884.
1010
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 909
to both, and both are therefore prevented from impeaching him in the for-
bidden ways.
(b) The conventional reason for the rule is that the calling party guaran-
tees the witness' credibility (ante, § 898). Taking this as a test, it is clear
that if A calls the witness, A cannot thereafter impeach him, even when B
has subsequently called him. As to B, it would seem that from the outset
he must be assumed as disputing A's whole case and therefore, by implica-
tion, of denying the credibility of A's witnesses ; hence, when he afterwards
calls a witness of A, this denial can hardly be said to be abandoned, for B is
still denying the facts testified to for A; thus, when B puts A's witness on
the stand, he is merely availing himself hypothetically of A's guarantee, and
says in effect, " A has guaranteed this man's credibility, and has thus claimed
that what he will say is true ; taking that claim for what it purports to be
worth, A has thus virtually admitted in advance that what the witness is
now about to say in my favor is true, and I put forward the witness merely
by virtue of A's admission ; I claim nothing myself in that respect." This
may be artificial reasoning, but the whole reason of the rule begins as artifi-
cial, and a just deduction from its fictitious premises seems to lead to the
above conclusion. It is true that A's original guarantee may be said (as
some Courts prefer to say) to extend merely to the testimony which A will
obtain in his own favor, and not to the testimony which B may later obtain,
so that thus A would be prevented from impeaching as to the former state-
ments (and those only), whUe B could not impeach as to the latter state-
ments (and those only); the result thus coinciding in part with that of {a)
supra. But this is fundamentally fallacious. The guarantee of credibility
(if there is one at all) must relate to the witness' general personal trust-
worthiness of disposition and emotion, not to the correctness of specific state-
ments' of fact ; since the latter, as is universally conceded (ante, § 907), may
always be shown to be untrue. The guarantee is of the continuing, single
quality of trustworthiness, and is therefore inseparable ; it either is made or
is not made, and it cannot be construed as existing for some statements and
not for others. Hence, upon this theory, it should follow that the party first
calling the witness cannot thereafter impeach him, while the other party,
though afterwards calling him, may still impeach him. Besides, by any
other solution, the practically absurd result is reached of allowing B, in his
case in reply, first to impeach A's witness as a confirmed liar, and then to
call the same witness under a supposed guarantee of credibility without with-
drawing his impeachment. Finally, it may be said^ that, under the orthodox
* As in the following passage : 1824, Starkie, case, there seems to be no reason why, when he
Evidence, 3d ed., 187: "It has been said that, afterwards adopts him as his own witness, he
where a witness has been examined by one should not be so considered to all purposes. . . .
party, he may afterwards be cross-examined as The same witness may know distinct parts of
an adverse witness [by the adversary] when he the transaction, one branch of which makes for
is called by the adversary as one of his own wit- the plaintiff and the other for the defendant ;
nesses. Yet, if a party omit from prudential and if each party call him as his own witness,
motives to examine his adversary's witness, there seems to be no reason why each should
[when first called,] as to any branch of bis own not be in turn bound by the same principle."
1041
§ 909 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
rule for the order of evidence {post, § 1885), B might have obtained all the
witness' knowledge as to his own case on cross-examination, so that by not
doing so and by calling him later, he has waived his option to treat him
throughout as A's witness, and thus has made him his own. It is true that
there was such an option as to putting in his own case on cross-examination.
But it does not follow that there was an option between treating him as A's
witness throughout and treating him as his own by calling him later; for
this begs the question by assuming it already determined that to call the wit-
ness later would be to make him his own ; that, indeed, is the very question
sought to be determined. Under the Federal rule, forbidding putting in
one's own case on cross-examination {post, § 1885), even this argument dis-
appears, for under that rule there is no semblance of such an option.
(c) The only tenable reason for maintaining the . general rule at all is the
danger that a party calling a witness might coerce him into falsities by
threatening to blacken his character if he fails to testify favorably {ante,
§ 899). This reason might seem to apply equally to both parties where both
call the witness. Yet if A first calls him, B is then entitled to impeach his
character in reply, and thus it is practically vain to forbid him to do so after
calling the witness on his own side, if he has taken the precaution to do so
before calling him. So far, then, as this reason amounts to anything {ante,
§ 899), it leads to the same conclusion as the theory (6) supra, namely, that
the prohibition extends throughout to A, the party originally calling, but not
to B, the party subsequently calling. Moreover, if it be said that this reason
would not prohibit A from impeaching character after B's call, the answer is
that the same supposed abuse is possible, in that A might threaten to blacken
the witness' character in rebuttal if when called later by B he testified
favorably to B.
Such seem to be the general considerations that may be invoked in solving
the specific situations now to be dealt with. No doubt it may all seemto be
a matter of fine distinctions, of petty quibblings, and of artificial imaginings.
But if we are building a rule upon fiction there is nothing else to be done but
to carry out the assumed requirements of the fiction. It is all a ridiculous
structure in the air of legal fancy ; but so long as the rule exists, it is to be
applied with at least a pretence of rationality. Concede the falsity of the
foundation, and then the entire structure may be abandoned. Until then, it
remains to apply the rule to concrete situations as best we can.
§910. Same: (1) A calls a Witness ; may A impeach ? Subpcena, Oath,
and Interrogation. At the outset it is necessary to determine at what point
of time, in the simplest case, the witness becomes one own. Where A makes
a witness his own, and B later does the same, complicated questions arise as
to the incidence of the rule. But in these it is always assumed that A had
originally done something to make the witness his own, i. e. that there is
some act — such as summoning by subpoena, administering the oath, or the
like — by which A had originally set the rule in operation. The question
thus arises, What is this original act by which the rule is at least prima
1042
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 911
fad& set in operation against the party doing it ? Or, in other words, what
constitutes " calling " a witness, for the purposes of this rule ? Is it the mere
summoning into court by subpoena ? Or is it the administration of an oath ?
Or is it nothing short of asking questions and obtaining answers ?
1. For a witness summoned under the ordinary subpoina, it is clear that
neither the summons, nor the oath, nor the questioning are sufficient ; there
must he an answer furnishing relevant evidence; for until that point is
reached, the party has not obtained any testimony from that witness and it
would thus be erroneous to suppose that he had guaranteed the credit of a
non-existent and merely potential testimony. The principle is the same as
that which determines whether the opponent has the right to cross-examine
to his own case.-*
2. For a witness summoned under a subpoena duces tecum to produce a
docume7it, the line is crossed when the witness, being questioned, has given
a relevant answer respecting the identity or execution of the document. The
reason is not essentially different from that just mentioned.^
3. For a deposition taken but not used, it would seem that the taker has
not made the witness his own. But since a Court holding the contrary view
is always obliged further to consider whether the subsequent use of the depo-
sition by the opponent relieves the taking party from the rule, and since it
is seldom possible to discern upon which ground the decision is reached,
the state of the law may better be examined under the other head (post,
§ 913 (b)).
4. Where the witness is called by the judge, and not by a party, either
party may impeach him.^
§ 911. Same: (2) A calls a 'Witness, then B calls him; may B impeach?
(a) viva voce Testimony. Where A first calls the witness, and then B calls
him, it seems to follow (for the reasons noted in § 909, ante) that B may
nevertheless impeach him, whether by questions in the nature of cross-ex-
amination or otherwise.! Some Courts, however, take the contrary view and
forbid impeachment by B ; ^ and this occasionally goes to the extent of forbid-
ding even proof by contradiction,^ — an extreme error, because the rule itself
^ Post, § 1893, where the authorities are is to be considereil as an interrogatory as to a
collected. distinct fact upon the cross-examination of the
^ Post, § 1894, where the authorities are witness, although it was put to her after her -
collected. first examination was desisted from for some
3 1886, Selph V. State, 22 Fla. 537, 545 ; 1892, time ").
Hill c. Cora., 8S Va. 633, 639, 14 S. E. 330; « 1871, Barken-. Bell, 46 Ala. 216, 223 (re-
1893, Clarlc v. Com., 90 id. 360, 368, 18 S. E. called by the opponent against objection; rule
440. Contra: 1894, Coulson v. Disborough, 2 applicabletotheopponent) ; 1876, Artz r, R, Co.,
Q. B. 316 (neither may cross-examine, except in 44 la. 284, 286 (witness dismissed by one partv af-
judge's discretion). Compare the rule for com- ter preliminary questions, and then used by the
pulsorv witnesses, post, § 917. opponent; rule applicable to the latter) ; 1892,
1 I'SOl, Dickinson v. Shee, 4 Esp. 67 (Ken- Richards «. State, 82 Wis. 172, 180, 51 N. W.
yon, L. C. J. : " The witness having been orig- 652. Undecided: 1877, State v. Jones, 64 Mo.
inally called by the plaintiff and examined as 391, 397.
his witness, the privilege of the defendant to ' 1894, Smith u. Assur. Co., 13 C. C. A.
cross-examine remained in every stage of the 284, 65 Fed. 765 ; compare § 914, note 1, infra.
cause and for every purpose"); 1887, Travers This fallacy is avoided in Jones u. State, 115
V. McMurray, 19 N. Sc. 509; 1806, Sawrey «. Ala. 67, 22 So. 566 (1896).
Murrell, 2 Hayw. N. C. 397 (" The question . . .
1043
§ 911 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
(as universally conceded) does not prohibit this mode of impeachment {ante,
§ 907). But, even in such Courts, the case should be distinguished of im-
peachment on a recall by B for further cross-examination (allowable in the
trial Court's discretion; post, § 1897), for this is merely a continuation of
cross-examination and not a calling of the witness as B's own ; * and the
same distinction applies to a viva voce cross-examination (substituted for the
cross-interrogatories in writing) of a witness whose direct examination has
been taken and used by deposition for the first party.*
§ 912. Same : (6) Deposition. It is generally Conceded that where a
deposition is taken at A's instance, B having notice and opportunity to cross-
examine, A's failure to read the deposition as evidence leaves B never-
theless entitled to use it {post, § 1389), on condition that he put in the
whole, both the direct and the cross examination {post, § 1893, and § 2103).
If A had read the deposition, in whole or in part, he would clearly have
made the witness his own, and B's subsequent use of it would (on the
principle of the preceding section) not prevent B from impeaching the de-
ponent.i But the difficulty is, where A, the taker, has made no use of the
depositions, that he can hardly be said to have made the witness his own
{ante, § 910, (3)) ; indeed, his failure to use them is generally due to the dis-
covery that the witness' testimony is unfavorable, and is practically a re-
pudiation of it ; his taking the deposition was thus a mere unsuccessful
voyage of discovery, and the first and only person to utilize the deposition
as testimony is B ; the witness therefore is B's ; and this must be so, whether
the evidence he especially desires occurs in the answers to the direct or to
the cross examination ; accordingly, B may not impeach him.^
§ 918. Same : (3) A calls a TAritness, then B calls him ; may A impeach?
(a) viva voce Testimony ; (6) Deposition, (a) Where A has first Called the
witness, and then B has called him, does the rule cease to operate as to A, so
as to allow him to impeach the witness ? For the reasons already noted
{ante, § 909), it would seem that the rule still prohibits impeachment by A ;
and this result is accepted by the majority of Courts dealing with the
question.^
* 1851, Koss u. Haynes, 3 Greene la. 2U, Clearly, that it pertains to him who introduces
213. it ") ; 1882, Herring v. Skaggs, 73 id. 446, 453
'' Miss. Anuot. Code 1892, § 1756 (opponent (deposition taken originally by co-opponent);
may procure deponent and put him on the stand Cal. C. C. P. 1872, § 2034 (deposition may be
"as the witness of the party procuring the dep- read by either party, "and is then deemed the
osition, and may cross-examine him as the wit- evidence of the party reading it") ; 1861, Mu-
ness of such party"). See a ruling to the sick v. Ray, 3 ftletc. Ky. 427, 431; Nev.'Oen.
same effect under § 1893, post. St. 1885, § 3432 (deposition shall "be deemed
1 1846, Carville v. Stout, 10 Ala. 796, 802, the evidence of the party reading it") ; N. D.
sembh (A takes successive depositions of the Rev. C. 1895, § 5682 (same) ; Utah Rev. St. 1 898,
same witness, and uses the last only; B may § 3459 (like Cal. C. C. P. § 2034) ; 1903, Von
use the prior ones to discredit the witness). Tobel v. Stetson & P. M. Co , — w'ash. — , 73
Contra: 1848, Story u. Saunders, 8 Humph. Pac. 788. Contra: 1804, Steinbach «. Ins. Co.,
663, 666 (deposition used by both parties; 2 Gaines 129, 131, semble (deposition used by
neither may impeach) ; compare the cases cited the cross-examiner only ; witness not made his
post, § 1892. own).
2 1854, Jewell v. Center, 25 Ala. 498, 504 l 1903, Young v. Montgomery — Ind. — ,
("What are we to understand, in legal par- 67 N. E. 684, semi/e ; 1858, Com. ^.Hudson 11
lance, by testimony belonging to a suitor ? Gray 64, 66 (Shaw, C. J. : " [The opponent
1044
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 914
(6) In the case of a deposition, the same rule would apply where A, the
taker, has used it, and then B, the opponent, also uses it.^ But where A has
not read it, and B first puts it in as testimony, it would seem that the de-
ponent has never been made A's witness (for the reasons already noted in
§ 912), and therefore that the rule has never come into force against him
and that he is at liberty to impeach the deponent.^ This result is further
corroborated by a group of early rulings (no longer of force since the aboli-
tion of disqualification by interest), in which it was held that A, the taker of
a deposition not using it, could, as against B, the opponent desiring to use it,
enforce the objection that the deponent was by interest disqualified as a wit-
ness for B.*
§ 914. Same: (4) Making a 'Witness One's Own by Cross-examination;
(a) Impeachment. In many jurisdictions there obtains a rule {post, §§ 1885 ff. ;
called there the Federal rule) that the opponent, upon cross-examination,
may not apply his questions to the material of his own case-in-reply, but
must confine the subject of his questions to the matter of the first party's
case as presented through his witnesses; thus the opponent, in order to
obtain from the witness such facts as he can contribute to the opponent's
own case, must wait his turn and then call the witness on his own behalf.
That rule concerns merely the order of evidence, and is supposed (though
erroneously) to prevent confusion and obscurity. But it is sometimes wrested
from its original purpose, and joined with the rule against impeaching one's
own witness, so as to produce a singular effect. This effect is produced by
makes the witness his own] to some purposes ; and the cusea citeA post, § 1892. Contra: 1850,
it would be very difficult to determine what. Young v. Wood, 11 B. Monr. 123, 134 (taker
But the party who first called him cannot be may probably not Impeach geneiul character, but
allowed to say or to show that he was unworthy may disprove facts testified to); 1826, Phetti-
of credit"); 1827, Jackson v. Varick, 7 Cow. place i). Sayles, 4 Mason 312, 320.
238, 242, semble (" He was introduced and sworn * The following list is a partial one only ;
generally by the defendants ; . . . they could note also that the rule might be different for an
not afterwards question either his competency or attempt to disqualify entirely, for the reason
credibility"); affirmed in 2 Wend. 166, 20.5; given below: 1858, House ». Camp, 32 Ala. 541,
1829, Fulton Bank v. Stafford, 2 Wend. 483 ; 5;9 (deposition offered by defendant at trial
1834, Bogert v. Bogert, 2 Kdw. Ch. 399, 403; below but suppressed; defendant allowed to
. 1843, Floyd v. Bovard, 16 W, & S. 75 (obscure), object to deponent's incompetency for plaintiff) ;
Contra: 1864, Stafford u. Fargo, 35 111. 481, 1849, Elliot w. Shultz, 10 Hamph. 234 (objection
486, semble; 1896, Hall y. Manson, 99 la. 698, on ground of hearsay, allowed). Contra: 1846,
68 N. W. 922; 1898, Morris v. Guffey, 188 Pa. Stewart v. Hood, 10 Ala. 600, 607 (deposition
534, 41 Atl. 731. taken by defendants, allowed to be used by
Distinguish the following: 1811, Watson v. plaintiff, because defendant taking it could not
Ins. Co., 2 Wash. C. C. 480 (certificate of a object to deponent's Interest in favor of cross-
survey used as showing the fact of a survey; examiner; "there is certainly no good to result
the survey itself then read by the opponent ; from a practice which will permit a partv first
rule not applicable to the former party). to ascertain by actual examination what a wit-
's 1848, Story v. Saunders, 8 Humph. 663, ness will swear and then admit or exclude him,
666 (deposition taken and used by both parties; at pleasure") ; 1869, Weil v. Silverstone, 6 Bush
rule applicable to both). 698,700; 1871, Sullivan w. Norris. 8 id. 519 (but
2 1834, Crary v. Spragne, 12 Wend. 41, 45 here the rule is held not to forbid an objection
(holding the rule not applicable as against A to inadmissible evidence). It may be noted that
where B used the testimony of a deceased wit- these rulings often dealt at the saiiie time with
ness called at the former trial by A) ; 1849, Neil the question of § 1892, post, namely, whether B
w. Childs. 10 Ired. 195; 1880, Strudwick «. Brod- could cross-examine on his own case; because
nax, 83 N. C. 401, 404 (approving preceding B, in order to avoid the objection now involved,
ease) ; 1837, Richmond v. Richmond, 10 Yerg. which would arise if he called the witness for
343, 345 (forbidding impeachment by general himself, was thus driven to cross-examine upon
character) ; add the statutes cited ante, § 912, his own case if allowable.
1045
§ 914 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
declaring that if the cross-examining party does ask about his own case (in
violation of the first rule), he thereby makes the witness his own, and is thus
prohibited from impeaching the witness on the subject of such questions.
This consequence is enforced in a few of the Courts adopting the above
Federal rule ; ^ and even occasionally (but without the slightest justification)
in Courts following the orthodox rule {post, § 1885) which does not prohibit
asking about one's own case on cross-examination.^ A further logical conse-
quence of the doctrine is that the original party may impeach on the matters
thus brought out on cross-examination.^
But this doctrine rests merely on a confusion of ideas, and has no legiti-
mate foundation. The two rules, one concerning the order of evidence {fost,
§ 1885), the other concerning the scope of impeachment {ante, § 896), have
nothing to do with each other in policy or in principle. It is true that, as a
mere accident, the application of one results in the other going into force,
and the exemption from one would remit the other ; so that, where the latter
is burdensome, the opponent struggles to evade the former as a means of
escaping the latter. For example, one might desire to sue a corporation in
the Federal Court, and to this end might join the corporation and its negli-
gent employee as joint tortfeasors of different jurisdictions, and thus the
defendant would strive to oppose the application of the doctrine of joint tort-
feasors ; and yet the constitutional rule as to Federal jurisdiction and the
common-law doctrine as to joint tortfeasors have nothing whatever in com-
mon as to origin or policy. In the present situation, then, if the opponent
had called the witness as his own, the prohibition as to impeachment would
have come into force ; yet, for not doing so, the Court imposes a penalty
(namely, the prohibition of impeachment) which has no connection with the
rule violated (namely, as to order of evidence). The fact that such would
have been a consequence, if he had called the witness, is a mere accident,
and is not a necessary and appropriate penalty for failure to follow the rule
about the order of evidence ; as is easily apparent from the fact that under
the orthodox rule (which allows cross-examining to one's own case) there is
no prohibition against impeachment ; in other words, the prohibition against
impeachment turns upon the act of calling and thus indorsing the witness
{ante, § 909), and not upon the topics of the questions put to the witness. The
1 Ark. Stats 1894, § 2957 (in cross-examin- withoutnotice to produce, because, the will being
ing " on new matters, such examination is subject a new issne, " he made the witness as much his
to the same rules as to the direct examination ") ; own as if he had himself called him " ; a correct
Oal. C. C. V. 1872, § 20+8 (if the opposite party enough ruling on the facts) ; 1836, People v.
" examine him as to other matters [than those Moore, 15 Weiid. 419, 423 (preceding case ap-
connected with the direct examination], such proved on the present principle) ; 1860, Mattice
examination is to be subject to the same rules as v. Allen, 33 Barb. 5+3, 546 (present principle
a direct examination ") ; 1900, Hanes v. State, repudiated, except to limit leading questions by
155 lud. 112, 57 N. E. 704; 1878, Clough v. the Court's discretion; ["it the witnossl had
State, 7 Nebr. 320, 341 ; 1897, Kohl v. State, 59 given material testimoav again.it him, although
N. J. L. 445, 36 Atl. 931, 37 Atl. 73 ; Or, C. C. P. he had attempted to prove his own c.ise or some
1892, § 837 (like C;il. C. C. P. § 2048) ; 1903, part of it by him, still he di.l not thereby forfeit
Bailey i: Seattle & R. R. Co., — Wash. — , 73 the right to impeach him hv particular or Rcneral
Pac. 679 ; and the cases cited in the next note. testimony ") ; 1873, Bassh'am v. State, 38 Tex.
' 1804, Jackson v. Son, 2 Caines 178 (oppo- 622, 625.
nent not allowed to cross-examine to a will, s igjg^ ^^^^ i'. R. Co., 44 la. 284, 286.
1046
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 915
result is, by the singular rule now under consideration, that the opponent is
in effect told by the Court : " If you had called the witness as your own, we
should have punished you by prohibiting his impeachment ; but, though you
have not done so, we shall nevertheless punish you for not doing it, in the
same way as if you had done it." The particular injustice of this vagary lies
in the further circumstance that it is usually applied by a Court to an oppo-
nent who has cross-examined to his own case without objection, and is later
prohibited from impeachment; the only impropriety in his examination con-
sisted in anticipating the usual order of his evidence, and if it was desired
to correct this impropriety, the appropriate method was to stop the cross-
examination on that subject, after objection made ; but, if no objection is
made, aiKi no ruling had, the consequence should be that the first party has
waived the impropriety of introducing the evidence too soon, and the whole
incident is closed ; there remains no evidential crime to be atoned for later
by the inappropriate punishment of prohibiting impeachment ; to impose any
penalty at all is to revive a fault already annulled by waiver.
This form of error has as yet not gone far, but it threatens to spread. The
notion of a connection in principle between the two rules about the order of
evidence and the limits of impeachment is a specious and simple one, and its
fallacy deserves to be exposed and checked. Both of the rules in question
are impolitic and unjust {ante, §§ 896-899 ; post, §§ 1887-1888), and their
combination in the present form results in quibbles of particular absurdity.
Its worst tendency is to convert the rules of evidence into mere conjuring
wands, — to aid unscrupulous counsel in entrapping opponents into an im-
material error which provides a weapon for the assassination of a true and
just verdict.
§ 915. Same: (S) Leading Questions. The peculiar rule dealt with in the
preceding section — i.e. that cross-examining on one's own case makes the
witness one's own — is also by some Courts applied for still another purpose,
namely, to forbid leading questions as to such topics. The process of argu-
ment is that since the cross-examination to such topics makes the witness
one's own, and since leading questions to one's own witness are forbidden,
they are therefore on such topics improper on cross-examination :
1881, Find, J., in People v. Cowl of Oyer §• Terminer, 83 N. Y. 436, 459 (forbidding
leading questions on cross-examination " while seeking to elicit new matter constituting
an element of the intended defence ") : " A different rule would enable a party to develop
his defence untrammelled by the rules which govern a direct examination, and give him
an advantage for which we can see no just reason. As to the new matter the witness
becomes his own, and in substance and effect the cross-examination ceases. That is
properly such only while it is directed to the evidence given in behalf of the adversary ;
when it passes beyond that, it becomes the direct and affirmative evidence of the party,
and should be subjected to appropriate restraints. There is no reason in the nature
of the case why a direct examination should be guarded against the evil and danger
resulting from leading questions, which does not apply to an effort upon cross-examina-
tion to introduce a new and affirmative defence."
1874, Dunne, C. J., in RusTi v. French, 1 Ariz. 99, 130, 25 Pac. 816 : "There is a general
impression that the right to cross-examine implies the right to put leading questions ;
1047 .
§ 915 TESTIMONIAL IMPEACHMENT. [Chap. XXIX
but the very point of Harrison v. Rowan [cited infra'] is that the judge there was of
opinion that such is not always the case; that you may cross-examine and lead while you
keep within the limits of the plaintiif's [opponent's] case; but that when you strike new
matter, though you may still cross-examine, you must not in that part of the cross-
examination put leading questions ; and though this seems a fine distinction, it may often
be broad enough to secure valuable results." ^
That such reasoning could be advanced in support of such a result seems
incredible ; for it rests on a misconception of one of the simplest and most
established doctrines of evidence. (1) That doctrine is (ante, § 767) that
the prohibition of leading questions rests upon the supposed partisan bias of
the witness, rendering him willing to accept suggestions, that therefore
(ante, § 774) a leading question is allowable even on a direct examination
where the witness appears to be biassed against the examiner, and that (ante,
§ 773) it is always allowable on a cross-examination unless the witness
appears biassed in favor of the cross-examiner. In other words, the policy
of the prohibition turns solely upon the emotional attitude of the witness
to the party in general, i. e. to one side or the other, regarded as antagonists,
and has nothing to do with the subject of the specific questions. If a wit-
ness is biassed for A, the bias applies to all questions which B may ask on
cross-examinations. To suppose the witness to be dominated in A's favor
by partisan rancor and stubbornness when one question is asked, so as to
justify B's leading question, but the next moment to be possessed of equal
fervor against A and in favor of B, so as to forbid B's next question to be
in leading form, and to fancy the strong tide of partisan emotion thus
swinging back and forth in the witness' mind from question to question, is
merely to contrive a fantastic fiction. (2) Furthermore, the doctrine of the
present chapter — the rule against impeaching one's own witness — has no
concern with the rule against leading questions. Leading questions do not
impeach. The subject-matter may impeach; but the form of the question
cannot convert a non-impeaching fact into an impeaching fact. Conceding,
then, that a cross-examination to one's own case makes the witness one's
own and forbids impeachment (as in the cases of the preceding section), still
this does not forbid leading questions ; for the fact asked in the leading ques-
tions may not impeach the witness at all, and indeed their subject is by
hypothesis merely a substantive fact bearing on the cross-examiner's own
case. So that the propriety of leading questions still remains to he deter-
mined by the principle appropriate to them, namely (as above explained) by
the witness' partisan attitude towards the parties in general.
It is well settled that leading questions (for the reasons above stated) may
T.lJZ7i^ N v' f,TPl'.«"V,^T' °^ ^^■'■'' ^ ^. ^^^'- C- C- 580. 582 (" If the cross-examina-
Lt TlwJ ^' \- ' f <^.*'''"^ questions tion respects new matte.-, leading questions can-
not allowed, n asking to one's own case on not be a.sked ") ; 1877, State w. Hopkins 50 Vt
cross-exanimation; quoted s«pm); 1827, Ell- 316,331. It would follow that the origina
1048
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 916
be asked on cross-examination unless the witness appears biassed for the
cross-examiner {ante, § 773), and it may be supposed that the few Courts
adopting the present rule have sometimes done so in momentary forgetful-
ness of the doctrine on that subject, and that the effort to establish an excep-
tion of the present sort was due merely to the confusing and unfortunate
influence of the Federal rule {post, § 1885) against putting in one's own case
on cross-examination, — a rule which only arose long after the principles
affecting leading questions had been firmly established :
1835, Shaw, C. J., in Moody v. Rowell, 17 Pick. 490, 499 : " The general rule admitted
on all hands is that on a cross-examination leading questions may be put, and the Court
are of opinion that it would not be useful to engraft upon it a distinction not in general
necessary to attain the purposes of justice in the investigation of the truth of facts, that
it would be often difficult of application, and that all the practical good expected from
it may be as effectually attained by the exercise of the discretionary power of the
Court." 2
§ 916. Same: (5) Calling the Other Party as a 'Witness; Co-defendants.
(1) If there is any situation in which any semblance of reason disappears
for the application of the rule against impeaching one's own witness, it
is when the opposing party is himself called hy the first party, and is
sought to be compelled to disclose under oath that truth which he knows
but is natiirally unwilling to make known. To say that the first party
guarantees the opponent's credibility {ante, § 898) is to mock him with
a false formula ; he hopes that the opponent will speak truly, but he equally
perceives the possibilities of the contrary, and he no more guarantees the
other's credibility than he guarantees the truth of the other's case and the
falsity of his own. To say, furthermore, that the first party, if he could im-
peach at will, holds the means of improperly coercing the other {ante, § 899)
is to proceed upon a singular interpretation of human nature and experi-
ence, and to attribute a power which the former may perhaps wish that he
had but certainly cannot be clothed with by this or any other rule. There
is therefore no reason why the rule should apply at all.^
The state of the law is confused. In some jurisdictions by judicial deci-
sion the rule is held to be inapplicable; in others, to be applicable. In
many jurisdictions the statutes making the opponent compellable to testify
have attempted to declare something on the present point, but usually with
the sole result of increasing the uncertainty and introducing arbitrary sug-
gestions. Of these statutes the most that can be said (apart from express
2 Accord: 1801, Dickinson v. Shee, 4 Esp. for himself as he pleased, and no prior inconsist-
67; 1835, Moody v Rowell, 17 Pick. 490, 499 ent statements could be used in impeachment;
(see quotation supra); 18.'54, Beal v. Nichols, so that unless one took the risk of abiding by
2 Gray 262 (similar ; here also refusing to allow what the opponent should choose to say, it would
the original calling party to put leading ques- be preferable not to call him at all; thus the
tions as a matter of right) ; 1853, Legg w. Drake, main purpose of the enabling statute making
1 Oh. St. 286, 291 (in discretion). him compellable is defeated or encumbered.
^ One peculiar practical absurdity of the op- The prior statements, to be sure, could some-
posite result may be noted. Since impeachment times be used as admissions, but even this was
by prior self-contradiction would be excluded, ignored in Strudwick v. Brodnax, infra.
the opponent could tell his story as favorably
1049
§ 916
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
judicial interpretations) is, first, that a statute authorizing the opponent's
examination subject to the " ordinary rules of cross-examination " must be
supposed to imply a general exemption from the present rule of impeach-
ment ; secondly, that a statute making the opponent examinable " like any
other witness" may be supposed to refer to all such rules as benefit the
calling party and not necessarily to include, as binding him, the rule against
impeaching one's own witness; and, thirdly, that statutes which declare the
calling party " not concluded " by the testimony and allow him to rebut it
" by adverse testimony " were apparently contrived in a singular legislative
ignorance or forgetfulness of the common law, which for more than a century
has clearly conceded that exception to the general rule (ante, § 907), so that
the effect of these statutes (as ordinarily worded) on the general rule for
other kinds of impeachment remains indeterminate.^
2 For the right to cross-pxamine on one^s own
case, dealt with in some of the statates inft-a,
see further §§ 1891, IS92, post; and for the right
to cross-examine to character on interrogatories
of discovery before trial, see post, § 1856. The
plirase " rule applicable " in the following notes
means tlie rule against impeaching one's own
witness : Enfj. . 1878, AUhusen v. Labouchere,
L. K. 3 Q. B. D. 654, 661 (on interrogatories
of discovery, examination to character is not
allowable); Cart.: 1862, Atkinson «. Atldnson,
5 All. 271 (whether the opponent is a hostile
witness depends on liis coudnct on the stand, not
on his position in the record ) ; Newf . Cons. St.
1892, c. 57, § 1 (quoted ante, § 488) ; 1853, Mair
V. Culy, 10 U. C. Q. B. 321, 325, Burns, J. (hold-
ing that the rule did not apply ; but here the
result was merely to admit a contradiction, which
could have been admitted even against an ordi-
nary witness); 1881, Dunbar v. Meek, 32 U. C.
C. P. 195, 213 ("A party calling the opposite
party as a witness makes him his witness to all
intents and purposes ") ; Ala. : Codel897, § 1857
(use of interrogatories of opponent does not pre-
clude "from contradicting it"); 1874, Warren
?•. Gabriel, 51 Ala. 235 (examinaticm of the op-
ponent on interrogatories; rule applicable);
Ariz.: Rev. St. 1887, §§ 1831, 1855 (examina-
tion of opponent to be conducted " under the
same rules applicable to other witnesses ") ;
§ 1836 (leading interrogatories in deposition,
allowable); § 1858 (taker "may contradict the
answers [to interrogatories] by any competent
testimony, in the same manner as lie might con-
tradict the testimony of any other witness " ) ;
Ark.: 1854, Drennenr. Lindsey, 15 Ark. 339,361
(rule applicable); Cob.: St. i899, iVIar. 1, c. 95
(opposing i)arly may be examined at the trial
" as if under cro.~s-examination ") ; Conn. : Gen.
St. 1887, § 1099 (opponent may be compelled to
testify " in tlie same manner and siiliject to the
same rules as other witnesses") ; Dei: L. 1859
(vol. 11 1, c. 598, § 1 (a party " may be examined
as if under cross-examination, at the instance of
tlie adverse party or any of them, and for that
jiurpose may be compelled in the same manner
and suliject to the same rules of examination
as any other witness to testify ; but the party
calling for such examination shall not be ex-
1050
clnded [concluded ?] thereby, but may rebut
his testimony by other evidence ") ; Ga : Code
1895, § 5290 (may cross-examine and impeach
opponent " as though the witness had testified
in his own belialf"); 1878, Garrett v. Sparks,
60 Ga. 582, 586 (rule applicable) ; ///. .• Rev. St.
1874, c. 51, § 6 (a party may be examined " in
like manner and subject to the same rules as
other witnesses ") ; Ind.: Rev. St. 1897, § 525
(" may be rebutted bv adverse testimony " ) ; 1889,
Croker v. Agenbroad, 122 Ind. 585, 24 N. E. 169
(using the opposite party's deposition ; left un-
decided) ; 7a.; 1863, Hunt v. Coe, 15 La. 197
(rule applicable); 1893, Thomas v McDaneld,
88 id. 380, 55 N. VV. 499 (rule not applicalile) ;
Md.: Pub. G. L. 1888, Art. 35, § 4 (opponent's
testimony may be rebutted by adverse testimony
and by admissions); ^tass.: Pub. St. 1882, c.
169, § 20 ("the same liberty ... as is allowed
upon cross-examination ") ; Mich.: 1900, Smith
V. Smith, 123 Mich. 234, 84 N. W. 144 (director of
an opponent corporation may not be impeaclied
except as other witnesses are); Minn.: Gen.
St. 1894, § 5659 (like Del. supra, but ending
with " counter-testimony " instead of " other
evidence") ; 1896, Suter v. Page, 64 Minn. 444,
67 N. W. 67 (opponent is not the first
party's witness) ; 1896, Pfefferkorn i: See-
field, 66 id. 223, 68 N. W. 1072 (examiner
is not restricted to the case of the opponent,
but may cover the whole field as in the case
of one of his own witnesses) ; 1900, Pipestone
Co. Bank v. Ward, 81 id. 263, 83 N. W. 991
(statute applied); 1901, Kellogg Co. v. Holm,
82 id. 416, 85 N. W. 159 (statute applied);
Mo. : Rev. St. 1889, § 8920 (a party may com-
pel an adverse party " to testify as a witness in
his behalf in the same manner and subject to
the same rules as other witnesses, provided that
the party so called may be examined by the
opposite party under the rules applicable to the
cross-examination of witnesses ") ; 1872, Chand-
ler V. Freeman, 50 Mo. 239 (rule applicable) ;
1898, Imhoff v. McArthur. 146 id. 371, 48 S. W.
456 (same); jV. //.; Pub. St. 1891, c. 224, § 15
(party may cross-examine, contradict, or im-
peach the testimony, offered by him, of a nomi-
nal or real adverse party) ; 'N. J. : Gen. St.
1896, § 2 (" When any party is called as a wit-
§§ 875-918]
IMPEACHING ONE'S OWN WITNESS.
§ 916
(2) Where a co-party is called against his co-party, for the opponent, it
seems clear that the co-party against whom he testifies may impeach
liim.^
(3) Where a co-defendant in a criminal prosecution testifies for himself,
the other co-defendant may impeach him, because their interests, as between
each other, are distinct, and because the witness has been called by himself
ness by the opposite party, he shall be subject
to the same rales as to examination and cross-
examination as otlier witnesses ") ; ib., Prac-
tice, § 163 (examination of opposing party by
deposition may be " rebutted by adverse tes-
timony"); N. Y.: C. C. P. 1877, § 838 (op-
ponent's testimony " may be rebutted by other
evidence") ; Laws 1837, c. 430, § 2 (plaintiff in
aition where usury is pleaded may examine
defendant as any other witness) ; 1804, Jaclison
r. Son, 2 Caines 178 (opponent on cross-exami-
nation is one's own witness, for the purpose of
proving a document's contents) ; N. C. : Code
1883, § 583 (opponent's testimony may be "re-
butted by adverse testimony ") ; 1880, Strud-
wielc I). Brodnax, 83 N. C. 401, 403 (opponent's
deposition not impeachable by prior inconsistent
statements ; clearly erroneous, because they were
also admissions) ; 1885, Coates v. Willces, 92 id.
376, 385 (obscure, applying Code § 583) ; 1890,
Helms u. Green, 105 id. 251, 262, 11 S. E. 470
(rule applicable); N. D.: Rev. C. 1895, § 5649
(examination of opponent "may be rebutted by
adverse testimony ) ; § 5651 (one examined as
an opponent " may be examined on liis own
behalf, subject to the same rules of examina-
tion as other witnesses"); St. 1903, c. 98 (a
j)arty, or beneficiary, or officers of a corporate
party, may be examined " as if under cross-
examination at the instance of the adverse
party " ; and the adverse party may " rebut it
by counter-testimony " ; this act not to apply to
trials under Civ. C. § 5630, unless the party in-
voking it is " at the time exercising the right of
rebuttal"); Oh.: Rev. St. § 5243 (opponent
may be examined " as if under cross-examina-
tion," and examiner " shall not be concluded
thereby, but mav rebut it by counter-evi-
dence ") ; Pa. : P."& L. Dig. 1896, " Witnesses,"
§ 21 (a party " may be compelled by the ad-
verse party to testify as if under cross-examina-
tion, subject to the rules of evidence applicable
to witnesses under cross-examination, and the
adverse party calling such witness shall not be
concluded by his testimony, but such person so
cross-examined shall become thereby a fully
competent witness for the other party as to all
relevant matters, whether or not these matters
were touched upon in his cross-examination,"
and where a co-party is thus cross-examined,
" his co-plaintiffs or co-defendants shall thereby
become fully competent witnesses on their own
behalf as to all relevant matters, whether or not
these matters were touched upon in cross-exam-
ination ") ; 1874, Brubaker v. Taylor, 76 Pa. 83,
87, semble (rule not applicable) ; 1898, Callary
V. Transit Co., 185 id. 176, 39 Atl. 813 (injury
by street-car; plaintiff cannot treat motorman
as an opposing party) ; 1901, Gantt v. Cox, 199
id. 208, 48 Atl. 992 (ofScers of opponent cor-
VOL. II. —4
1051
poration become one's own witnesses on calling ;
but a liberal discretion may make exceptions ;)
S. D.: Stats. 1899, §§ 6487, 6489 (like N. J).
Rev. C. §§ 5649, 5651) ; Tex.: Rev. Civ. Stats.
1895, § 2293 (opponent's examination on inter-
rogatories is to -be conducted " in the same
manner and according to the same rnles which
apply in the case of any other witness ") ; § 2296
(party taking may "contradict the answers by
any other competent testimony in the same
manner as he might contradict the testimony of
any otlier witness"); CI. S.: 1889, Dravo v.
Tabel, 132 U. S. 487, 489, 10 Sup. 170 (taking
the opposing party's deposition ; rule appli-
cable) ; VL: Stats. 1894, § 1246 (a party may
compel an adverse party " to testify as a witness
in his behalf, in the same manner and subject to
the snme rules as other witnesses ; but the party
so called to testify may be examined by the
opposite party under the rules applicable to
the cross-examination of witnesses ") ; 1891,
Good V. Knox, 64 Vt. 97, 99, 23 Atl. 520 (op-
ponent called to testify against a co-defendant ;
rule applicable); Va.: Code 1887, § 3351 (op-
ponent examinable "according to the rules
applicable to cross-examination ") ; Wash. : C.
& Stats. 1897, §§ 6008, 6745 (opponent compel-
lable to testify " subject to the same rules of
examination as any other witness") ; §§ 6012,
6746 (opponent's tesv.iraony " may be rebutted
by adverse testimony ") ; 1 900, Reed v. Loney ,
22 Wash. 433, 61 Pac. 41 (respondent's use of
appellant's testimony at former proceedings, to
impeach appellant's answer, held not to make
him respondent's witness); Wis.: Stats. 1898,
§ 4068 (a party " may be examined upon the
trial of any such action or proceeding as if under
cross-examination, at the instance of the adverse
party or parties or any of them " ; remainder
as in Delaware, the last clause being " and may
rebut the evidence given thereon by counter or
impeaching testimony ") ; § 4096 (examination
by deposition " shall be subject to the same
rules as that of any other witness") ; § 4098
( the testimony "may be rebutted by other tes-
timony a.<i if taken in his own behalf"); 1901,
Kreider v. Wisconsin R P. & P. Co., 110 Wis.
645, 86 N. W. 662 (manager of a mill, held not
a corporate officer to be examinable adversely,
under § 4096, Rev. St. 1898, as amended by
Laws 1899, c. 29). Whichever rule be adopted,
it is at least clear that the opponent thus called
could not be allowed to impeach himself : 1853,
Legg V. Drake, 1 Oh. St. 286, 289 (it " would
be incompatible with his situation as both
party and witness ; for the reason that he could
not allege his own want of credibility ").
3 Me. Pub. St. 1883, c. 82, § 97 (co-party
may " contradict or discredit " a co-party called
by the opponent).
§916
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
and not by the impeacher ; and the same consequence follows for witnesses
called by one co-defendant.*
(4) Where a co-party in a civil case testifies for himself at his own in-
stance, the same result would seem sound ; because the other party has not
called him, and therefore {ante, § 909) has not made the witness his own.
§917. Same: (6) Necessary "Witness ; (a) Attesting "Wm-"Witness. On the
correct theory {ante, § 899) there is no reason why the legal necessity of call-
ing a particular witness should exempt from the rule the party calling
him ; for the subjective immunity of the witness from fear of character-abuse
is just as important and just as liable to be induced in this kind of witness
as in any other. Nevertheless, acting upon the cant theory of a party's guar-
antee of his witness' credibility {ante, § 898), and pressed by a desire to
restrict the operations of so unruly and extensive a principle, the Courts have
commonly refused to apply the rule to a necessary witness, i. e. one called by
compulsion of law.^
{a) The attesting witnesses to a mil are required by law to be produced or
accounted for {post, § 1288) ; hence it has always been conceded that no rule
prevents their impeachment by the proponent of the will.^ The precedents
deal usually with impeachment by contradiction or self-contradiction, and it
■would not be safe to assume that the same Courts would take the logical
step of permitting impeachment of character.^ Distinguish the question
* 1902, R. 0. Hadwen, 1 K. B. 882 (both at
common law, and under the statute of 1898
making accused persons competent in their own
behalf (ante, § 488), one jointly indicted may
cross-examine a co-indictee's witness whose tes-
timony criminates the former; and under the
statute the same rule applies to permit the cross-
examination of the co-indictee testifying on his
own behalf); 1883, McGruder v. State, 71 Ga.
864 (here tried together, but under a consent
tliat each might testify for the other ; impeach-
ment allowed) ; 1895. State v. Goff, 117 N. C.
755, 23 S. E. 355 (indictment for afEray, G. and
K. being one set of combatants, and G— s being
of the opponents ; the former were allowed to
impeach the latter testifying for himself ; " in
such a case the witnesses for the one side stand,
as to the parties on the other, in the relation of
prosecuting witnesses and defendants"); 1897,
State V. Adams, 49 S. C. 414, 27 S. E. 451, seni6/e.
So, too, for divorce and crim..con., where a co-
respondent testifies : 1 894, Allen u. Allen, Prob.
248, semble (divorce for adultery; the co-respond-
ent and the respondent are entitled to cross-ex-
amine each other).
"• Tlie general principle has been broadly
sanctioned in the following statutes : Arh. :
Stats. 1894, § 2958 (allowable for a witness " in
a case in which it was indispensable that the
party should produce him ") ; Kt/. : C. C. P.
1895, § 595 (bad character excluded, "unless it
was indispensable that the party should produce
him ").
2 Eng. : 1818, Richardson v. Allan, 2 Stark.
335, EUenborough, L. C. J. ; 18+3, Bowman v.
Bowman, 2 Moo. & Rob. 501, Cresswell, J. ;
1861, Jackson i. Thomasson, 1 B. & S. 745,
747, Cockburn, C. J. (" I know of no authority
that a party who claims under a will, and con-
sequently is compelled to call the attesting wit-
ness to it, cannot, in the event of one of them
disproving the will, give evidence to discredit
him ; as for instance by showing that he has
been corrupted by the heir-at-law ") ; C. 5. .
1838, Rash v. Purnel, 2 Harringt. 448, 454;
1898, Thompson v. Owen, 174 111. 229, 241, 51
N. E. 1046; 1840, Dennett v. Dow, 17 Me. 19,
22 (Shepley, J., dissented from the ruling as to
self-contradictions) ; 1851, Shorey v. Hussey, 32
id. 579, 581 ; 1900,/Wilton v. Humphreys, 176
Mass. 253, 57 N. E. 374 (attesting witness, not
called as such, but as scrivener, held not a neces-
sary witness) ; 1885, Whitman v. Morey, 63 N. H.
448, 456, 2 Atl. 899 ; 1832, Crowell v. Kirk, 3
Dev. 357, per Ruffin, J.; 1846, Williams v.
Walker, 2 Rich. Eq. 291 (subscribing witness to
a mortgage to which the impeacher was not a
party) ; 1869, Alexander v. Beadle, 7 Coldw. 126,
128.
^ The few precedents are not harmonious :
1892, Diffenderfer v. Scott, 5 Ind. App. 243, 32
N. E. 87 (witness required by law, which was
here notthe case ; character may be impeached) ;
1840, Dennett v. Dow, 17 Me. 19, 22, supra
{semble. Contra) ; 1866, Thornton's Ex'rs v.
Thornton's Heirs, 39 Vt. 122, 155 (impeach-
ment allowable " to the extent of proving his
former declarations on the subject"; whether
character-impeachment could be used is left
undecided). If the attesting witness is called
by the contestant, he is not the proponent's wit-
ness in any aspect : 1834, Solly v. Hind, 6 C. &
P. 316.
1052
§§ 875-918] IMPEACHING ONE'S OWN WITNESS. § 918
which arises under the preferred-witness rule, namely, whether the testimony
of the subscribing witnesses is conclusive upon the proponent of the will ;
this question, once much controverted (post, § 1302), was unanimously an-
swered in the negative ; but it is obvious that if answered in the affirmative,
it would have had the some practical effect that the present rule would have
if applicable ; and the two have not always been kept distinct.
§ 918. Same : (6) Prosecution's Witness in Criminal Case ; "Witness called
by the Judge. Does the rule against impeaching one's own witness apply to
limit the State in a criminal prosecution? The answer depends on two
considerations.
(1) If there is in the jurisdiction a rule of evidence requiring the State to
produce all known eye-witnesses of the crime, then such witnesses are com-
pulsory witnesses, and on the principle just examined (amfe, § 917) the pro-
hibition against impeachment plainly does not apply. But such a rule of
compulsion exists in one or two jurisdictions only, and is elsewhere repudi-
ated {post, §§ 1339, 2079). Elsewhere, then, the answer must depend upon
where there is anything peculiar in the position of the State which distin-
guishes it from the ordinary civil party. Superficially there may be ; actu-
ally there is not. The person who is run over by a street-car is just as
much restricted to the eye-witnesses whom chance has made passengers
or passers-by, as is the State to the eye-witnesses of an affray. Even
the defendant in a criminal case cannot select beforehand the persons
who will be able to vindicate his innocence. The truth is that circum-
stances, not the parties, mark out the circle of eligible witnesses. As soon
as we begin to reason on these lines, we are forced back to the irrationality
of the entire rule {ante, § 898). If it is to go, it must go in toto ; there is
nothing reasonable in exempting the State more than any other party. To be
sure, if it is to go piecemeal, the exemption for the State is the more plausi-
ble to begin with ; and such seems in effect the attitude taken in that Court
which is as yet the chief supporter of this exemption :
1897, Poioell, J., In Stale v. Slack, 69 Vt. 486, 38 Atl. 311 (applying the exemption to all
witnesses called by the State on a criminal charge, since the State is bound to call all
persons who may have any knowledge) : " We are the more satisfied with the conclusion
here reached because we think the State ouglit not to be hampered by such a rule.
Prosecutions- are carried on by the government, through the agency of sworn officers
elected for that purpose, who have no private interests to serve nor petty spites to gratify,
but whose sole and only duty is to faithfully execute their trust, and do equal right and
justice to the State and accused. The course of public justice, thus directed, ought not
to be obstructed by a rule without a reason. The ascertainment of the truth, which is
the object of the prosecution, is of more consequence than the instrumentality by which
it is sought to be ascertained ; and when an instrumentality becomes an obstruction to
the course of justice the State should be at liberty to remove it, and by trampling upon
it if necessary."
Of such an exemption as this there are a few traces in the earlier English
practice.^ In the United States it is thus far little recognized outside of
^ 1833, E. I). Bodle, 6 C. & P. 186 (murder; father, himself suspected of the crime, the
where the prosecutor did not call the defendant's Court called him for the defendant, but allowed
1053
§ 918
TESTIMONIAL IMPEACHMENT.
[Chap. XXIX
the jurisdictions which (under the principle of § 2079, post) acknowledge
the compulsory rule for the State's witnesses.^ It is worth noting, however,
that by availing of the conceded exemption for witnesses called by the judge
(a?ite, § 910), the same result may be effected.®
him to be cross-examined to discredit him, yet
would not allow him to be contradicted by other
witnesses) ; 1838, R. v. Chapman, 8 id. 558
(murder; the defendant's brother, an eye-wit-
ness ; whichever side calls him " may cross-
examine him") ; 1844, R. v. Carpenter, 1 Cox
Or. 72 (prosecutor compelled to call an indorsed
witness may impeach him by contradiction, but
not by self-contradiction); 1845, R. t;. Stroner,
1 C. & K. 650 (rape ; witnesses not called by
the prosecution were compelled to be called,
but " every latitude in examining them " was
allowed the prosecution) ; 1847, R. v. Wood-
head, 2 id. 520 (whoever calls the witness, even
defendant, makes them his own witnesses) ;
1858, R. «. Cassidy, 1 F. & F. 79 (Parke, B.,
ruled tliat the defendant who called an indorsed
witness made him his own, and the prosecution
could cross-examine).
2 Mich.: 1874, Wellar v. People, 30 Mich.
1 6, 23 (prosecutor may " press them with search-
ing questions ") ; 1895, People u. Case, 105 id.
92, 62 N. W. 1017 (witness, "whom the prose-
cutor was obliged by law to call," allowed to be
cross-examined to contrary statements in a
deposition); 1 902, People «. Elco, — id. — ,91
N. W. 755 (point not decided; three judges for
exclusion, ignoring the preceding case) ; Vt. .-
1877, State v. Magoon, 50 Vt. 333, 340 (since
the State Is bound, under the principle of § 2079,
post, to produce all material witnesses, " it is
not to be prejudiced by the character of the
witnesses it produces and uses ") ; 1894, State l:
Harrison, 66 id. 523, 527, 29 Atl. 807 (preceding
case applied to allow jury's rejection of part of
such witness' testimony) ; 1897, State v. Slack,
69 id. 486, 38 Atl. 3U" ("-We think no distinc-
tion can logically be made [between character-
evidence and any other] ; for the same reason
that makes the rule inapplicable to one mode of
impeachment makes it equally inapplicable to
all modes, as the different modes are but differ-
ent ways of doing the same thing, namely, dis-
crediting the witness, and they are equal in
degree and alike in essence. The reason of the
rule does not fail in part and stand in part, —
fail as to one mode of impeachment, and stand
as to another mode. It is indivisible, and stands
or falls as a whole ").
3 1902, Carle v. People, 200 111. 494, 66 N. E.
32 (State's attorney allowed to state that he did
not wish to call a certain eye-witness, aud to
request the Court to call him, and then to
cross-examine him, the defendant also cross-
examining).
1054
§§ 920-940]
BOOK I, PAET I, TITLE II.
920
Sub-title II (continued) : TESTIMONIAL IMPEACHMENT.
Topic I : CHARACTER, MENTAL DEFECTS, BIAS, ETC., USED AS GENERAL
QUALITIES TO DISCREDIT.
CHAPTER XXX.
A. Moral Chaeactbr.
§ 920. Actual Disposition, as distingnisbed
from Reputation and other modes of evidencing
Disposition.
§ 921. Relevancy and Auxiliary Policy ; their
difl'erent bearings.
§ 922. Kind of Character ; Veracity as the
fundamental Quality.
§ 923. Same : the Rule in the various Juris-
dictions.
. § 924. Same : Character as to Specific Traits
(Chastity, etc.) other than Veracity.
§ 92.5. Same : Accused's Character as Witness
and as Party, distinguished.
§ 926. Same : Use of Prior Convictions and
other Instances of Misconduct.
§ 927. Time of Character ; General Princi-
ple.
§ 928. Same : the Competing Rules as to
Prior Character in the various Jurisdictions.
§ 929. Same : Character post litem Trwtam;
Eflects of Hear.?ay Rule.
§ 930. Place of Character.
B. Insanity, Intoxication, and other
Okganic Incapacity,
§ 931. In general.
§ 932. In.sanity.
§ 933. lutoxicajtion.
§ 934. Disease,
sundry Derangements.
§ 935. Religious Belief.
§ 936. Race.
Age, Morphine Habit, and
C. Experiential Incapacity.
§ 938. General Principle.
D. Emotional Incapacity, Bias, Interest,
AND Corruption.
§ 940. General Principle.
A. Moral Character.
§ 920. Actual Disposition, as distinguished from Reputation and other modes
of e\7idencing Disposition. That which induces us to believe that a witness js
or is not likely to be speaking truthfully is usually some circumstance of his
actual personality. Just as his knowledge and his recollection, his sanity
and his maturity of age, as bearing on his qualifications for admission, are
actual qualities somewhere existent in or attributable to him, so also the
moral character, the bias, or the corruption, which tend to discredit him and
affect the probability of his truthfulness, are actual qualities, having proba-
tive force because conceived of as existent in or attributed to him. It may
be necessary, in establishing one or more of these qualities, to resort to repu-
tation or other evidence ; but the reputation is not the immediate basis of our
inference as to his probable truth-telling. Eeputation is not resorted to at all
for the purpose of discovering his bias, his knowledge, his recollection, and
the like ; and the fact that it is resorted to for ascertaining his moral dis-
position must not be allowed to obscure the important truth that the thing
immediately and fundamentally important is the actual disposition, and not
the reputation.^
^ Compare the quotations to this effect ante, § 52, and post, § 1608 (reputation and character).
1055
§ 920 TESTIMONIAL IMPEACHMENT. [Chap. XXX
Eeputation, then, is merely evidence of disposition or character, and, more-
over, only one of three kinds of such evidence. First, there may be particular
instances of conduct, good or bad, from which is inferrible the permanent dis-
position that has inspired them ; questions of Circumstantial Evidence thus
arise which are treated later {post, §§ 977-988). Secondly, there may be the
personal knowledge of one who has observed the man, i. e. Testimonial Evi-
dence, such as would be given of the qualities of a horse, the strength of an
iron beam, or the circumstances of a death, by one who has personally ob-
served the data ; there ought in reason to be no evidential objection to this
kind of testimony to character ; yet the Opinion rule has here been invoked,
and the admissibility of such testimony is generally denied (post, § 1980).
Thirdly, there may be reputation, i. e. the net expression of a multitude of
personal opinions of the preceding sort, based more or less on personal inter-
course. This should at least stand on no better footing than the preceding
class, though it does in fact ; but it has to pass the gauntlet of the Hearsay
rule, and its admissibility as an exception to that rule is there discussed (post,
§§ 1608-1621). Moreover, the question may arise whether the witness who
testifies to reputation is qualified by knowledge to do so, — a question treated
under the head of the Knowledge Qualification (ante, §§ 691, 692). All
these three varieties are merely kinds of evidence for proving Character ; and
here, as in all cases where the inference is from the existence of a certain char-
acter to the probability of certain conduct (in particular, from a defendant's
character, ante, §§ 52, 55), the argument is based on the character or disposi-
tion itself (in the ordinary sense of the word) ; and it is for the present pur-
pose immaterial whether the intention is to evidence that character by means
of reputation or otherwise.
§ 921. Relevancy, and Auxiliary Policy ; their different bearings. In arguing
from a witness' character to his probable truth-telling, questions of relevancy
are of course the primary ones, — questions as to the kind of character, the
time at which it is predicated, and the like. But, as with all circumstan-
tial evidence (ante, § 42), questions of auxiliary policy may be raised. It has
already been seen, in dealing with a defendant's character (ante, § 57), that
considerations of this sort are controlling ; i. e. that which is relevant enough
(the defendant's bad moral character for the quality in question) is not allowed
to be used by the prosecution because of the undue prejudice to the case of
the defendant on its merits ; and that in civil cases (ante, § 64) the character
of the parties, relevant though it may be, is for other reasons not usable.
Are there here any such controlling reasons of auxiliary policy ?
It is usually assumed that there are not. The reason for exclusion in the
case of a criminal defendant is that he may be found guilty on the present
charge, not because he is believed to be guilty, but because his bad character
may be thought by the jury to deserve punishment or to deprive an erroneous
verdict of its moral injustice. But this reason obviously is totally lacking in
the case of a witness, because he is not on trial and can be found guilty of
nothing. The reason for exclusion in the case of civil parties is that, even
1056
§§ 920-940] MOEAL CHARACTER. § 921
where some moral turpitude is involved (and where character would there-
fore be relevant), the possibilities of protracting the trial, confusing the issues,
and turning the proceeding into a contest of mere numbers of witnesses, are
strong enough to outweigh the advantage of having evidence of such slight
value ; and these reasons and motives are again supposed to be inapplicable
to evidence of witnesses' character. The law, then, as now universally ac-
cepted, attributes no controlling influence to any of these considerations,
and therefore allows the character of witnesses to be offered freely in
evidence ; subject only, of course, to the general discretionary power of the
trial Court to limit the number of witnesses on this as on any other point
(post, § 1907).
But is it a proper assumption that none of the above considerations apply
to the use of witnesses' character? It is true that the witness cannot be
found guilty by the jury upon any charge; but the assaults upon his char-
acter may bring it to public notice in such a way that, without any charge
and without any trial, he may be condemned by public opinion and disgraced
before the community. While we may not choose to regard with compunc-
tion the mere feelings of the witness, we may well hesitate if we find that
the prospect of this ordeal of public disgrace threatens to make the witness-
box a place of dread to its innocent occupant, and to deprive justice of the
fullest opportunity to obtain useful testimony. Again, the reasons applicable
to the use of parties' character in civil cases do also unquestionably in some
degree apply to the use of witnesses' character ; for no long experience at
trials is needed to convince one that the danger of the protraction of the pro-
ceedings, the confusion of the issues, and the degeneracy of the trial into a
contest between neighborhood factions is equally attendant upon such evi-
dence. Judges have often protested against the abuses of this kind of evi-
dence.^ Considering the comparative triviality of its value, and the modern
tendency to abandon the old notion (a mark of a primitive stage of culture)
that a usually bad man will usually lie and a usually good man will usually
tell the truth, and the widespread dislike of the witness-box (due largely to
the license of counsel), it would seem desirable to consider the expediency of
abandoning once for all the use of this feeble and petty class of evidence.
Another and more advanced generation will possibly persuade itself to this
decision :
1860, Wanllam, J., in Chapman v. Cooley, 12 Rich. 660 : " The consumption of the
limited time which can be appropriated to the administration of justice, and of the money
of parties and witnesses, required by the trial of collateral issues as to character, is a great
and growing mischief. In this very case, involving in pecuniaiy interest the value of a cot-
ton-screw and seven bags of cotton, the judge reports that three days of a former session
were occupied, with no other fruit than mistrial by cessation of the term, and that at the trial
which resulted in a verdict, notwithstanding his ruling to exclude such evidence as to the
principal witness of the plaintiff, fifty-six witnesses were examined as to character. Great
delay, expense, and exasperation necessarily follow such a course. Instead of trying the
issue in the action, the procedure in many cases is a trial of the witnesses; and every wit-
^ Compare § 1610y post.
1057
§ 921 TESTIMONIAL IMPEACHMENT. [Chap. XXX
ness is expected to bring in his train a host of compurgators who will swear to their faith
in him when he contradicts himself or is contradicted by others. These collateral issues
as to character are practically and sometimes justly applied, not only to the witnesses as
to the facts in controversy, but also to the witnesses as to character themselves, and really
are unlimited and illimitable. In a large majority of cases, these collateral iuvestigations
are altogether sterile, either because the testimony of the witness assailed is immaterial, or
because the number is nearly equal of those attacking and those defending his character.
It is frequently a mere contest as to the number of the compurgators and the vilifiers, and
in the muster the vicinage- is canvassed and disquieted." ^
§ 922. Kind of Character ; Veracity as the fundamental quaUty. In de-
termining the relevancy of such evidence as affecting the credit to be given
to a witness, the first question is, What kind of character is relevant ? Since
the argument is to be against or for the probability of his nov? telling the
truth upon the stand, it is obvious that the quality or tendency which will
here aid is his quality or tendency as to truth-telling in general, i. e., his
veracity, or, as more commonly and more loosely put, his character for truth.
This must be, and is universally conceded to be, the immediate basis of infer-
ence. Character for truth is always and everywhere admissible. Moreover,
any other trait or quality, or combination of them, is relevant only so far as
involving, necessarily or probably, the presence or absence of this quality as
to truth-telling. This leads us to the chief topic of controversy in this
department, namely, whether lad moral character in general, or some other
specific had quality in particular, is admissible.
The argument for the use of bad moral character to discredit a witness
is, in brief, that it necessarily involves an impairment of the truth-telling
capacity, that to show general moral degeneration is to show an inevitable
degeneration in veracity, and that the former is often more easily betrayed
to observation than is the latter. The following passages illustrate the vari-
ous plirasings of the argument :
1656, Bushnell's Trial, 5 How. St. Tr. 633, 701 ; Bushnell, arguing against a witness
whose many infamies be had related : "But may some say 'that all this, however true,
makes him no more than a thief or a robber of both God and man, or a plunderer, or a
parricide, a profaner, or a drunkard, or the like; but now this doth not wholly disenable
his testimony ; but could I make it appear that he had formerly foresworn himself, then
I had something to the purpose.' To this I shall answer . . . that we cannot prove it
that those who bore false witness against Naboth did ever bear false witness against any
before, but this it was that rendered them suspicious (and with just judges should have
been cause enough to abhor them), because they were sons of Belial, wicked, mischievous
lawless men, men of so much known infamy that they would not stick at anything which
was put upon them, be it either to speak or to do, but in the general were ready for any
wicked employment."
1829, roomer, J., in Staler. Boswell, 2 Dev. 210: "Should a witness whose general
character is proverbially bad as to licentiousness and lewdness, who is in his habits re-
gardless of the precepts of religion and reckless of the consequences of vice be entitled
to the same credit as another whose character is without stain, and whose whole life has
2 1893, Simkins^., in Carroll v. State, 32 the character of a witness, animosity or revenge
lex. Cr, 431, 24 S. W. 100 {" Experience clearly is the incentive or cause of the most positive
demonstrates that, m most e6Forts to swear away impeaching testimony ").
'l058
§§920-940] MOEAL CHAEACTERj VERACITY. §922
been marked by piety, virtue, and truth? . . . An unprincipled man, although grovelling
in other vices which he has long practised, may for selfish purposes artfully conceal the
weakness of his character on the score of veracity. Should not such habits lessen the
weight and impair the credit of a witness, although he may have established no general
character bad as to truth V "
1837, Marcy, Sen., in Bakeman v. Rose, 18 Wend. 146, 151: "That the credibility of
a witness should be sought through his general moral character I have no doubt. . . .
If the inquiry be confined to the general reputation of the witness in point of truth
among his neighbors, it will happen in some cases that a witness whose general moral
character is deservedly infamous is allowed to impress his testimony on the jury with
unqualified weight, simply because mendacity may have been relatively too insignificant
an item, in the catalogue of his vices, to have attracted the attention or elicited the
remark of his acquaintance. Or it may happen that, though generally of so depraved
or corrupt a life that no one would doubt the facility with which he might be suborned
to swear falsely, yet from caution or calculation he may have observed that general
veracity in his common intercourse, or from natural taciturnity a ' wilful stillness enter-
tained,' which would render his reputation impregnable to this form of inquiry. . . .
One of the great benefits of jury trial was supposed to exist in the circumstance that the
jury, being from the vicinage of the parties and the witnesses, were better able to judge
of their relative lionesty and credibility. It would seem, therefore, in accordance with
this principle, that under the modern forms of impanelling juries, which do not in many
cases afiord to jurors the means of judging, from personal knowledge of the character
of witnesses, the measure of credit to be given to them, that as liberal a course for sup-
plying this deficiency of knowledge should be allowed as would be compatible with the
rights of the witnesses."
The arguments made in answer to this are chiefly three : (1) that, as a
matter of human nature, a bad general disposition does not necessarily or
commonly involve a lack of veracity, and that therefore the former is of little
or no bearing probatively ; (2) that the estimate of an ordinary witness as to
another's bad general character is apt to be formed loosely from uncertain
data and to rest in large part on personal prejudice and on mere differences
of opinion on points of belief or conduct, — a chance of error which is rela-
tively small in the specifip inquiry as to the other's notorious untruthfulness ;
and (3) that the incidental unpleasant features of the witness-box are
largely increased when the way is opened to this broad and loose method of
abusing those who are called as witnesses. The following passages represent
the various aspects of the argument :
1814, Bciyle, C. J., in Noel v. Dickey, 3 Bibb 269 : " It is an observation not less
true than trite, that no one is entirely virtuous or entirely vicious. Such, indeed, is in
general the preponderance of the virtue or vice of individuals as to entitle them to
the general character of good or of bad; hut we cannot, merely from knowing what the
general character is, say with certainty what vice or virtue enters into its composition.
If, therefore, we would form a correct judgment of a man with regard to any particular
vice or virtue, it is necessary we should be informed of his character in that particular
respect. ... A person, therefore, whose general character is bad, may notwithstanding
possess such a degree of veracity as to entitle him to credit upon oath ; and whether he
•does so or not can only be ascertained by inquiry into his character for truth."
1848, Greene, J., in Carter v. Cavenaugh, 1 Greene la. 173 : "The method of question-
ing as to general character alone appears to us not only vague but subject to great abuse
and injustice. Clannish witnesses, whose intercourse and business are always limited to
1059
§ 922 TESTIMONIAL IMPEACHMENT. [Chap. XXX
a particular class of kindred spirits, who may constitute a majority of the neighborhood,
often entertain peculiar and contracted views of general character, when applied to those
who may not agree with them in social, religious, or political tenets. And thus, by a
decided majority of one neighborhood, a man might be represented as possessing an
excellent general character; while in an adjoining neighborhood, where he is equally well
known, he might be described as a man of great moral turpitude. . . . The requisites of a
good character, and the components of a bad one, are so variously viewed by different
and even adjacent communities that they never can become a safe and uniform test of
veracity, without confining the inquiry particularly to character for truth. In some com-
munities an ultra-Mason, in others a proscriptive anti-Mason, in this neighborhood an
abolitionist, in the adjoining one an anti-abolitionist, would be regarded and styled a bad
character; and thus, in many communities, he who plays cards, or engages in horse-
racing, or frequents groceries, or works on the Sabbath-day, is looked upon and called a
bad character ; and yet such men — either the advocates of unpopular sentiments, or
those addicted to objectionable habits — may have a most commendable regard for
veracity. . . . Thus, by opening this boundless field of inquiry as to 'bad character,'
in its multitudinous phases, the most truth-abiding man might often be impeached."
1856, Ellsworth, J., in State v. Randolph, 24 Conn. 363, 367 : "The more general en-
quiry in England is adopted to learn the witness' character for trutli ; ours is adopted for
the same purpose, but is more simple and direct. In our courts the enquiry put is, ' Is
the character for truth on a par with that of mankind in general ?' The English rule
has this advantage, that it brings the general character of the witness before the triers,
which is important where the witness has not acquired a specific character on the subject
of tiutli ; and hence it is urged with some force that in such a case the general inquiry
is essential, for no other will reach the case. . . . General bad character is undoubtedly
a, serious blemish in a witness, and might justly detract from the weight of his testimony ;
and so might the character of a witness for the specific blemish of licentiousness, espe-
cially in the female sex. But where shall we stop the enquiries? Witnesses, who can
have no opportunity to exculpate themselves or give explanations of their acts, ought not
to he exposed to unjust obloquy; noi' should the trial be complicated and prolonged by
trying collateral issues. If it were wise- and just to enquire for one's reputation for virtue,
why not for gambling, horse-racing, drunkenness, sabbath-breaking, etc.? "
1859, Bell, J., in Boon v. Weathered, 23 Tex. 675, 681 : "When a man's honesty (I
mean his correctness in business transactions) is in question, his veracity is not in ques-
tion. When his veracity is in question, one cares not to know whether he be of a peace-
able or of a quarrelsome disposition. If the question is concerning honesty, the inquiry
should be concerning honesty. If the question be one of veracity, the inquiry should be
directed to the point at issue. . . . But the main argument, used by those who think
that in impeaching a witness the inquiry ought to be a.s to his general moral character,
is derived from the kindred nature of vices [quoting Mills, J., in Hume v. ScoHl. . . .
But observation of human nature has not established it as an infallible truth that the
existence of one vice in an individual is proof of the existence of another [quoting
Boyle, C.J,, in Nod v. Dickey]. ... No one can be so bold as to deny that, if a man he
worthy of credit under oath, notwithstanding a general bad character in other respects,
then no person to whom his testimony is of value should be robbed of it upon any ethical
theory concerning the kindred nature of vices."
1869, Zabriskie, Ch., in Aiwood y. Impsnn, 20 N. J. Eq. 157; "With many, telling
the truth is a habit and a principle which they adhere to always, though they may indulge
in drinking, swearing, gambling, roystering, or making close bargains. With others,
lying is the habit or principle, and if elevated to be senators or legislators, or made
church-members or deacons, it does not always reform them. The object of the law is to
show the character of the witness as to telling the truth."
There can be little doubt that the latter class of arguments represent the
1060
§§ 920-940] MOKAL CHARACTER; VERACITY. § 923
better side. Attacking a witness' character is often but a feeble and ineffec-
tive contribution to the proof of the issue ; and its drawbacks appear in their
most emphasized form where the broader method of attack is allowed. The
modern spirit tends to confine this mode of attack to its narrowest limits ;
and, in the minority of jurisdictions which permit the broader method, the
annals of trials give the reader an unedifying impression of the unprofitable
nature of such evidence.
§ 923. Same : the Rule in the various Jurisdictions. Historically, the use
of bad general character appears as originally allowable, — fitting, as it does,
a more primitive notion of human nature. In England, it was used without
question down to the latter part of the 1700s (whence its appearance by
transplantation in some of our earliest Courts). But about that time, in
some obscure way, an opposition set in, and tlie propriety of using character
for truth only was advocated. By the first part of the 1800s, a compromise
had been reached ; and, while character for truth only was taken as the
fundamental requirement, the estimate was allowed to be based on the wit-
ness' knowledge of the other's general character ; so that the inquiry in form
became a compromise, i. e. " Knowing his general character, would you be-
lieve him on oath 1"^ In England, then, and in those States which allow
that form of question,^ a slight concession is made by allowing the witness,
in giving his personal opinion as to veracity, to consider in his own mind the
other's general qualities ; but it is to be observed that the witness does not
state to the tribunal what that general character is. In other words, for the
purposes of proving by repute, general character is excluded, and character
for veracity only is stated. This is the modern rule in England.
In this country, the use of the witness' personal belief as to the character
of the other has always stood on a precarious footing ; ^ so that the inquiry
is more commonly aimed at obtaining reputation as the mode of proof, and
the question is thus more directly and clearly phrased for the contrast be-
tween general character and veracity-character. The positive opinion in
favor of the latter in Chief Justice Swift's treatise, in 1810,* had wide cur-
rency ; and in one way or another, the great majority of jurisdictions finally
gave adherence to that opinion.^ Those that withstand it are chiefly in the
South and the Southwest.
* Post, § 1982, for passages illustrating this. Barnes, 53 id. 86 (excluding a -H-oman's chas-
2 Post, §§ 1982, 1985. tity) ; 1885, Motes o. Bates, 80 id. 382, 385 ;
5 Post, § 1985. 1888, Davenport v. State, 85 id. 336, 338, 5 So.
* Swift, Evidence, 143. 152 (excluding character for honesty); 1889,
" In the following citations are included, for Mclnerny v. Irvin, 90 id. 275, 277, 7 So. 84
convenience, those also which deal with the (excluding a woman's character for chastity) ;
question of § 924, post: Alabama: Here gen- Birmingham U. R. Co. v. Hale, ib. 8, 11, 8 So.
era! character was held admissible, except as 142 (same); 1894, Ehea v. State, 100 id. 119,
otherwise noted: 1839, McCutchen's Adm'rs v. 14 So. 853 (same) ; 1891, Mitchell v. State, 94
McCutchen, 9 Port. 650, 655 ; 1846, Sorrelle v. id. 68, 73. 10 So. 518 ; 1895, Byers ti. State, 105
Craig, 9 Ala. 540 (left undecided); 1850, Nu- id. 31, 16 So 716; 1895, Yarbrough v. State, ib.
gent V. State, 18 id. 526 (denied) ; 1856, Ward 43, 16 So. 758; 1896, McCutchen v. State, 109
V. State, 28 id. 53, 60, 64 (affirmed by two to id. 465, 19 So. 810 (same as Davenport v.
one); 1871, Boles v. State, 46 id. 206 (approv- State); 1896, Crawford v. State, 112 id. 1.21
ing the preceding case) ; 1872, De Kalb Co. v. So. 214 (admitting bad general character, but
Smith, 47 id. 412 (same) ; 1875, Holland v. not character for chastity) ; 1897, White v^
1061
§ 924
TESTIMONIAL IMPEACHMENT.
[Chap. XXX
§ 924. Same : Character as to Specific Traits (Chastity, etc.) other than
Veracity. Where the principle is strictly maintained that veracity only is to
State, 114 id. 10, 22 So. Ill ; Alaska : C. C. P.
1900, § 669 (like Or. Annot. C. 1892, § 840) ;
Arkansas : 1855, Pleasant v. State, 15 Ark. 624,
651, semble (truth only); Code, § 654, now
Stats. 1894, § 2959 ("A witness may be ira-
peaclied ... by evidence that iiis general rep-
utation, for truth or immorality, renders him
unworthy of belief") ; 1874, Majors v. State, 29
Ark. 112 (character for "immorality" admit-
ted) ; 1890, HolUngsworth i: State, 53 id. 387,
394, 14 S. W. 41 (character for truth only, im-
proper) ; California: C. C. P. 1872, §2051
("general reputation for truth, honesty, and
integrity," admissible); § 1847 ("evidence af-
fecting his character for truth, honesty, or in-
tegrity "is admissible); 1865, People v. Yslas,
27 Cal 630, 633 (excluding chastity-character ;
Currey, J., diss.) ; 1883, People v. Markham, 64
id. 157, 163, 30 Pac. 620 (pointing out that the
last two qualities named in the Code are addi-
tions to the common-law rule of the State) ;
1895, People «. Johnson, 106 id. 289, 39 Pac 622
(woman's character for chastity, excluded) ;
1895, People!!. Chin Hane, 108 id. 597, 41 Pac.
697 (excluding character as a prostitute) ; Con-
nerticut: 1877, State v. Shields, 45 Conn. 256,
257, 260, 263 (rape ; former prostitution of the
prosecutrix admitted, but the principle not spe-
cified) ; Florida : 1 878, Robinson v. State, 16 Fla.
835, 839, semble (veracity only) ; Rev. St. 1892,
§ 1097 ("general character " allowed, semble;
see post, § 987) ; 1898, Mercer v. State. 40 Fla.
216, 24 So. 154 (veracity only) ; Georgia: Code
1895, § 5293 ("general bad character," admis-
sible) ; 1855, Stokes v. State, 18 Ga. 17, 37
(general character, followed by opinion as to
belief on oath) ; 1858, Smithwiek v. Evans, 24
id 463 (general character) ; 1860, Weathers v.
Barkdale, 30 id. 889 (same ; the former of these
two excludes, the latter admits, a woman's char-
acter for chastity) ; 1873, Wood v. State, 48 id.
192, 292, semble (excluding female character for
chastity; here a habit of illegal intercourse
with a particular person was considered) ;
Idalio: Rev. St. 1887, § 5956 ("truth, houestv,
or integrity"); § 6082 (like Cal. C. C. P.
§ 2051); Illinois: here character for veracity
only is admissible: 1849, Frye «. Bank, 11 111.
367, 378; 1859, Crabtree v. Kile, 21 id. 183
(" general character " spoken of, perhaps care-
lessly) ; 1860, Cook v. Hunt, 24 111. 535, 54.5,
550; 1876, Dimick v. Downs, 82 id. 570, 573;
1884, Tedens v. Schumers, 112 id. 263, 266 ; 1887,
Spies B. People, 122 id. 1, 208, 12 N. E. 865, 17
N. E. 898 ; Indiana : the Civil Code provided
(l{. S. 1838. p. 275; Civ. Code, § 242) that in
civil cases general moral character should be
admissilde ; and this has been construed as also
admitting specific moral trjiits : 1841, Walker v.
State, 6 Blackf. 3 ; 1873, Indianapolis P. & C. R.
Co. V. Anthony, 43 Ind. 183, 193 (chastity of
female witness, admitted) ; 1877, Rawles v.
State, 56 id. 439 (bastardy proceedings ; here the
complainant's specific character for chastity w,as
also received) ; 1879, Smock v. Pierson, 68 id. 405
(general moral character; bastardy proceed-
1062
ings). But this section was treated as not ap-
plicable in criminal cases: 1874, Fletcher i;.
State, 49 Ind. 131 (interpreting the common
law; and therefore not extending to criminal
cases the rule of Civ. C. § 242) ; 1877, Farley v.
State, 57 id. 334; 1879, State v. Bloom, 68 id.
55; State v. Beal, ib. 346. In 1881, however
(R. S. 1881, § 1803), the rule foe civil cases was
extended to criminal c;xses : 1 884, Wachstetter v.
State, 99 Ind. 298; 1885, Anderson v. State, 104
id. 47 1,4 N.E. 363, 5 N. E. 711 (a woman's char-
acter for chastity, admitted) ; 1 892, Randall v.
State, 132 id. .543, 32 N. E. 305 (defendant's
moral character) ; and the statute now reads :
Rev. St 1897, § 1894 (" In all questions affecting
the credibility of a witness, his general moral
character may be given in evidence ") ; Iiwa :
at first character for truth only was admitted :
1848, Carter v. Cavenaugh, 1 Greene 171 ; 1859,
State V. Sater, 8 la. 420, 424 ; then by statute
{infra) general moral character was made admis-
sible: 1867, Kilburu i. Mullen, 22 id. 502 (ex-
cluding character for chastity, i. e. " a specific
vice") ; 1868, State v. Vincent, 24 id. 570, 574;
1882, State v. Egan, 59 id. 637, 13 N. W. 730;
1884, State «. Kirkpatrick, 63 id. 559, 19 N. W.
660; Code 1897, §4614 ("general moral chaj:-
acter," admissible) ; 1899, State v. Seevers, 108
la. 738, 78 N. W. 705; Kansas: 1866, Craft w.
State, 3 Kan. 450, 480, semble (woman's char-
acter for chastity, excluded) ; 1891, Coates v.
Sulan, 21 id. 341 (no ruling; yet the practice
seems to sanction character for truth only) ; Ken-
tucky: 1814, Noel w. Dickey, 3 Bibb 268, semble
(truth only); 1819, Mobley v. Hamit, 1 A. K.
Marsh 591 (general character admissible, if fol-
lowed by the witness' inference as to credibility
upou oath) ; 1821, Hume i-. Scott, 3 id. 261
(general character admissible, witliont limita-
tion ; expressly overruling the preceding case) ;
1857, Thurman v. Virgin, 18 B. .Monr. 792
(general character admissible); 1869, Young v.
Com., 6 Bush 316, semble; 1895, Com. v. Wil-
son, — Ky. — , 32 S. W. 166 (either character
for truth or general moral character) ; C. C. P.
1895, § 597 ("evidence that his general reputa-
tion for untruthfulness or immorality renders him
unworthy of belief," allowable); Louisiana: gen-
eral character is admissible ; the controversy is
as to other specific qualities than veracitv : 1852,
State V. Parker, 7 La. An. 83, 87 {semble. "infa-
mous " character admitted, but character for ex-
tortion, cheating, and dissoluteness, not ailniitted
by the majority) ; 1892, State o. Jackson, 44 id.
160, 162, 10 So. 600 (general character " of that
kind which will show such moral turpitude"
as to make him incredible, admissible; semble,
"infamous" character, admis.sible, for violence,
inadmissible) ; 1893, State v. Taylor, 45 id. 605,
609, 12 So. 927 (character for honesty, as well as
truth ; here a defendant on trial for larcenv) ;
1901, State )•. Guy, 106 La. 8, 30 So. 268 (gen-
eral moral character admissible, but not charac-
ter for honesty or other specific traits than
veracity ; Breaux, J., diss.) ; Maine : character
for truth only is admissible: 1841, Phillips c.
§§ 920-940] MOEAL CHARACTER; SPECIFIC TRAITS.
§ 924
be the subject of inquiry, no question can arise as to admitting character for
any other trait. But in jurisdictions where bad general character may be
Kingfield, 19 Me. 375, 377 ; 1844, State i'. Bruce,
24 id. 71 ("infamous" character, excluded);
1849, Thayer v. Boyle, 30 id. 475, 481 (intemper-
ate habits, excluded); 1856, Shaw v. Kmery, 42
id. 59, 64; 1875, Sideliuger, v. Buckliu, 64 id.
371 (bastardy; complainant's reputation as a
prostitute, excluded 1 ; 1 877, State v. Morse, 67 id.
428 (prosecutrix in rape complaint) ; Marif-
land: 1795, Hutchings v. Cavalier, 3 H. & McH.
389 (general character, admissible); 1890, Brown
V. State, 72 Md. 468, 475, 20 Atl. 186 (truth
only ; not a woman's chastity ) ; Brown v. State,
ib. 477, 480, 20 Atl. 140 (not general bad char-
acter) ; 1901, Hoffman v. State, 93 id. 388, 49
Atl. 658 (truth only); Massachusetts: 1817,
Com. V. Murphy, 14 Mass. 387 (Per Curium:
" A common prostitute must necessarily have
greatly corrupted, if not totally lost, the moral
principle, and of course her respect for truth and
her regard for the sacredness of an oath ") ; 1846,
Com. V, Churchill, 11 Pick. 539 (overruling the
preceding case) ; 1858, Quinsigaraond Bank v.
Hobbs, II (iray 257 (veracity only; not in-
tegrity); 18.")9, Pierce c. Newton, 13 id. 528
(veracity only ; allowing other questions in
order to make it jilain that the veracity-reputa-
tion was not confined to a failure to pay debts ;
Michigan: 1856, Webber v. Hanke, 4 Mich.
198, 203 (truth only) ; 1874, Hamilton v. People,
29 id. 173, 185 (same); 1899, Calkins v Ann
Arbor E. Co., 119 id. 312, 78 N. W. 129
(character for honesty, excluded ) ; 1900, People
V. O'Hare, 124 id. 515, 83 N. W. 279 (woman's
character for chastitv, excluded); MimiesoUi :
1872, Rudsdill v. Slingerland, 18 Minn. 380
(truth only) ; 1876, Morelandv. Lawrence, 23 id.
84, 88 (same); Mississippi: 1850, Newman v.
Mackin, 13 Sm. & M. 383, 387 (trnth onlv);
1870, Head y. State, 44 Miss. 731, 735,751 (al-
lowing proof of a female witness' prostitution) ;
1881, Smith v. State, 53 id. 867, 873 (veracity
only ; woman's character as a prostitute ex-
cluded; Heady. State repudiated); 1885, French
V. Sale, 63 id. 386, 393 (truth only) ; 1896, Tucker
1J. Tucker, 74 id. 93, 19 So. 955 ("probably un-
chaste character " of a woman, excluded ; Whit-
field, J., reserving his opinion) ; Missouri: here
it has always been conceded that general moral
character is admissible: 1850, State i'. Shields,
13 Mo. 236 (" bad moral character generally ") ;
Day V. State, ib. 422, 426, semble ("general bad
character"); 1874, States. Hamilton, 55 id. 520,
522 ("moral chtiracter generally); 1875, State
V. Breeden, 58 id. 507 ("general moral char-
acter ") ; 1 878, State u. Clinton, 67 id 380, 390
("general character " for "honesty and mo-
rality") ; 1880, Stateu. Miller,71 id. 591 ("gen-
eral character for morality"); 1883, State u.
Grant, 79 id. I"3 (also, general reputation as a
common drunkard, as showing a "deterioration
of that general moral character ") ; 1886, State v.
Rider, 90 id. 54, 63, 1 S. W. 825 ("morality") ;
1888, s. c, 95 id 474, 486, 8 S. W. 723 ("mo-
rality"); 1889, State v. Tavlor, 98 id. 240, 245,
11 S. W. 570 ; 1891, State w.'Shroyer, 104 id. 441,
446, 16 S. W. 286 (approving State v. Grant);
1063
1894, State v. Smith, 125 id. 2, 6, 28 S. W. 181 ;
1896, State v. Weeden, 133 id. 70, 34 S. W. 473 ;
1897, State v. May, 142 id. 135, 43 S. W. 637 ;
but an unedifyiiig controversy (dealing much
dole to the doctrine of stare decisis] long went on
concerning the admissibility of a man's character
for unchustitji; it is perhaps not yet finally de-
cided: 1850, State V. Shields, 13 Mo. 236 (woman ;
" general character for chastity " allowed, as
" to some extent shaking the credibility ") ; 1878,
State K. Clinton, 67 id. 380, 382, 390 (forgery ;
defendant as a witness; character for chastity
admitted) ; 1883, State i\ Grant, 79 id 133 (ad-
missible, for a female witness; semble, also,
allowable to show that she was reputed a prosti-
tute) ; 1886, State v. Kider, 90 id. 54, 63 (a man ;
chastity admitted) ; 1888, s. c, 95 id. 474, 486
■ (same) ; 1891, State v. Shroyer, 104 id. 441, 447,
16 S. W. 287 (rape; the defendant being a wit-
ness, his character for chastitv was admitted) ;
1895, State v. Dnffey, 128 id."549, 31 S. W. 98
(chastity of a woman, admitted) ; 1895, State v.
Sibley, 131 id. 519,31 S. W. 10-33 (by Div. 2;
notadmittingunchastity against male witnesses,
esjiecially against a defendant in a seduction
charge, as here ; going on the supposed author-
itv of State v. Grant ; Gautt, P. J., diss ) ; 1895,
s.'c, 132 id. 102, 33 S. W. 167 (by the Court in
banc; affirming the preceding ruling; Bruce,
C. J., Macfarlane, Gantt, and Barclay, JJ.,
diss.) ; 1897, State v. Dyer, 139 id. 199, 40 S. W.
768 ("chastity and virtue," against a man, ad-
mitted; Burgess and Sherwood, JJ., unde-
cided) ; 1898, State v. Summar, 143 id. 220, 45
S. W. 2.54 (woman's chastity, admitted) ; 1903,
State 0. Pollard, 174 id. 607, 74 S. W. 969
(rape ; defendant's reputation for " chastity and
morality," admitted to impeach him ; Fox,
J., writing the opinion, but in effect dissenting ) ;
Montana : C. C. P. 1895, §§ 3123, 3379 (like Cal.
C. C. P. §§ 1847, 2051) ; Nevada: 1874, State v.
Ferguson, 9 Nev. 106, 120 (truth only); 1876,
State V. Larkin, U id. 314, 330 (truth only;
" though there perhaps are exceptional cases "
in which " utter depravity of moral character "
might be shown ; here excluding the uuchas-
titj' of a woman); New Hampshire: character
for truth only is admissible; 1838, State v.
Howard, 9 N. H. 486, semble; 1850, Hoitt u.
Moulton, 21 id. 592; 1861, States J'orschner,
43 id. 89; New Jersey: 1795, State v. Mairs,
1 N. J. L. 456 (not allowed to prove quarrel-
some character; "a man may be a boxer or
a bully and vet speak the truth upon oath");
1869, Atwood r. Impson, 20 N.J. Kq. 150, 157
(truth only); King v. Ruckmau, ib. 316, 357
(truth only); Neio Mexico; Comp. L 1897,
§ 3026 ("general evidence of bad moral char-
acter not restricted to his reputation for truth
and veracity," admissible); 1895, Territory v.
De Guzman, 8 N. M. 92, 42 Pac. 68, se'mhie
(general immorality, admissible) ; Nem > ork :
1817, Jackson v. Lewis, 13 Johns. 505 (veracity
only) ; 1818, Troup v. Sherwood, 3 Johns Ch.
558, 566, Kent, C. (veracity-character assumed
to be the only proper one); 1837, Bakeman
§ 924
TESTIMONIAL IMPEACHMENT.
[Chap. XXX
used, the question must also arise whether some other specific vice or group
of vices is not as significant as bad general character in indicating a degen-
eration of the truth-telling capacity. One of the objections, indeed, urged
against the use of bad general character ^ is that it necessarily brings in its
train a number of consequential difficulties such as this. The better opinion,
and the one usually reached, is that in spite of logic's demands, policy re-
quires that the line be drawn at bad general character, and that no specific
quality other than that of veracity be considered :
1837, Walworth, C, in Bakeman v. Rose, 18 Wend. 146 : " It is perfectly well settled,
both in this State and in England, that the general character o£ the witness alone can be
inquired into for the purpose of impeaching his credibility ; — that is, what is his general
character for truth and veracity, or whether his general character is such that he is not
V. Kose, 18 Wend. 146 (general character, State, 1 Head 38 (general bad character, ad-
admittej, but not specific traits, such as un- _ missible) ; 1879, Merriinan c. State, 3 Lea 393,
chastity; quoted supra); 1838, People v. Ab- 391 ("the whole moral character," allowed, but,
hot, 19 id. 198 (general character; tlie opinion semhie, not specific character for unchastity) ;
of Cowen, J., for tlie Supreme Court, so far Texas: 1854, Jones v. Jones, 13 Tex. 168, 176
as it may have allowed the specific trait of
nneliastity, was iu effect OTerruled by the
decision of the Court of Errors and Appeals
in Bakeman v. liose, supra, delivered sliortly
afterwards) ; 1833, People v. Rector, ib. 579,
semhie (general character, admitted ; if not so
intended, the language was no longer law after
Bakeman o. Rose, supra) ; 1842, Johnson v.
People, 3 Hill 178 (bad general character);
1859, People a Blakeley, 4 Park. Cr. 182
(unchastity, In either sex, admissible) ; in the
ensuinij cases, character for veracity only is
admitted, except as otherwise noted : 1859, Boon
V. Weathered, 23 Tex. 675, 678 (quoted supra);
1864,'Ayres v. Duprey, 27 id. 593, 599; 1879,
Johnson v. Brown, 51 id. 65, 77 ; 1886. Kennedy
V. Upshaw, 66 id. 442, 452, 1 S. W. 308 ("hon-
esty " excluded) ; 1 893, Carroll v. State, 32 Tex.
Cr. 431, 24 S. W. 100 (general character, ad-
mitted)); 1902, Hall V. State, 43 id. 479, 66
(same) ; 1 895,'^arlson w. 'Winterson, 147 N. Y. .^^k'W. 783 (chastity, excluded; except that on
652, 723, 42 N. E. 347, semhie (bad general "^TOss-examination "the witness herself mav be
character); North Carolina: 1804, State v.
Stallings, 2 Hayw. 300 (admitting " bad moral
character"); 1829, State v. Boswell, 2 Dev.
209 (same) ; 1843, State v. O'Neale, 4 Ired.
88 (same) ; 1849, State i;. Dove, 10 id. 469,
473 (general character as to honesty and
morals, admitted); 1872, St.«ite v. Perkins, 66
N. C. 127, semble (general bad character ad-
missible, but not for a particular quality) ;
asked as to being a common prostitute) ; UnitHj
States: 1836, U. S. v. White, 5 Cr. C. C. 43
(veracity only) ; 1840, U. S. v. Vansickle, 2 Mc-
Lean 219 (same) ; TJ. S. v. Dickinson, ib. 325,
329 (same); 1851, Wayne, J. (the others not
touching the point), iu Gaines v. Relf, 12 IIow.
555 (general moral character, admissible) ; 1859,
Teese v. Huntington. 23 How. 2, 13 (expressly
left undecided); Utah: 1889, U. S. v. Breed-
Ohio: 1834, Wilson v. Runyan, Wright 652 meyer, 6 Utah 143, 146, 22 Pac. 110 (adultery
(truth onlv) ; 1851, Bucklin !;. State, 20 Oh.
18 (obscure) ; 1853, French v. Millard, 2 Oh.
St. 50 (left undecided); 1854, Craig v. State,
5 id. 607 (truth only); 1875, Hillis u. Wylie,
26 id. 576 (same); Oregon: C. C. P. 1892,
§ 840 ("that his general reputation for truth is
bad, or that his moral character is such as to
render him unworthy of belief," mav be shown) ;
Pennsi/hania : 1835, Gilchrist v. M'Kee, 4 Watts
380 (veracity only; a woman's character for
chastity, excluded); 1903, Com. v. Payne, 205
Pa. 101, 54 Atl. 489 (general reputation excluded
the female paramour's "bad character" for
cliastity, admitted); 1898, State i: IWarks, 16
id. 204, 51 Pac. 1089 (truth and veracity only,
not honesty and integrity ; here applied to
a defendant as witness) ; Rev. St. 1898, C. C.
P. § 3412 (character for " truth, honesty, or
integrity"); Vermont: 1832, Morse v. Pineo,
4 Vt. 281 (truth only; excluding character as
prostitute) ; 1835, State v. Smith, 7 id. 141
(same); 1843, Spears v. Forrest, 15 id. 435
(same); 1846, Crane o. Thayer, 18 id. 168
(veracity only); 1896, State 'v. Fournier, 68
even when coupled witlireputatiou for veracitv); id. 262, 35 Atl. 178 (same); Virginia: 1816,
South Carolina : 1833, Anon., 1 Hill 258 Ligon v. Ford, 5 Munf. 10, 16 (general bad
(O'Neall, J. :" If the witness assailed is of gen- character, admissible) ; 1849, Uhl b. Com.. 6
eral bad moral character, his general character Gratt. 706, 708 (truth only; yet the witness,
m le),'al contemplation is a bad one in all re- in saying whether he would believe on oath,
spects"); 1848, Clark v. Bailey, 2 Strobh. Kq
143, 144 (to impeach the defendant's answer;
general bad character excluded, "as unwar-
ranted by the principles and practice of this
court"); Tennessee: 183.5, State v. Coatney, 8
Yerg. 1 (complainant in bastardy, allowed to be
impeached by bad character) ; 1858, Gilliam v.
1064
may "take into consideration the whole moral
character"); West Virginia: 1870, Lemons v.
State, 4 W. Va. 155,' semhie (veracity onlv);
Wisconsin: 1858, Ketchingman v. State, 6 Wis.
426, 431 (truth only, " commonlv ").
^ As urged by Ellsworth, J.,"iu the
quoted ante, § 922.
§§ 920-940] MORAL CHARACTER; SPECIFIC TRAITS. § 924
entitled to credit. But you cannot prove . . . that he has the reputation of being guilty
of any particular class of crimes. You cannot therefore inquire whether the witness has
the general reputation of being a thief, prostitute, niurderer, forger, adulterer, gambler,
swindler, or the like ; although each and every of such offences, to a greater or less degree,
impairs the moral character of the witness and tends to impeach his or her veracity";
Tracy, Sen. : " It has been pressed upon us with earnestness and eloquence that the con-
dition of a public prostitute, being the most debased and demoralized state of human be-
ing that can be imagined, necessarily presupposes the absence of all moral principle, and
especially that of regard for truth; and it is therefore contended that a common reputa-
tion of public prostitution necessarily includes a common reputation for falsehood. . . .
If Courts had the power [to change rules of evidence], it might not be a very discreet ex-
ercise of it to attempt to gauge crimes and graduate a standard of vices and immoralities.
Loathsome, deplorable, aud even detestable as is a condition of public prostitution, it is
not the only vice of a great kindred ; theft, forgery, swindling, drunkenness, gambling,
adultery, are also well allied ; and if we undertake to determine that the reputation of one
vice necessarily includes the reputation of another, it would be difficult to say when or
where we could stop. But . . . , [after noting the rule of the Roman and other laws,]
the common law in this respect certainly is founded on juster notions of human natuie ;
for while it so far recognizes the affinity of vice as not to regard the testimony of a wit-
ness of bad moral character as above all exception, it rejects the conclusion that a person
guilty of one immoral habit is necessarily disposed to practise all others. And seeing that
the absolute exclusion of an immoral witness may operate more to the prejudice than to
the advancement of justice, it recognizes that dictate of common sense which no theory
can refute, that the natural love of truth, when combined with the fear of temporal
punishment, is some restraint, even upon the most depraved, against the commission of a
gratuitous falsehood."
But a few Courts, restrained by no such considerations of policy, allow the
use, not only of bad general character, but also of bad character for a specific
trait, such as chastity. One result of this is the recurrence of speculative dis-
cussions upon such questions as whether a man's, or only a woman's, character
for unchastity is relevant.^ Another is that an attack on the personal char-
acter of "the witness is available as a mere instrument of revenge for his
opposing attitude, or as a threat for coercing the suppression of important
2 1895, State w. Sibley, 131 Mo. 519, 33 S.W. so Macaulay said, respecting the weakness of
167 (Burgess, J., pro : " It is a matter of com- Lord Byron for sexual pleasure, ' that it was au
men knowledge that the bad character of a man infirmity he shared with many great and noble
for chastity does not even in the remotest degree men, — Lord Somers, Charles James Fox, and
afiect his character for truth, when based upon others.'" Gantt, J., con^a ; "It is important
that alone, while it does that of a woman. It is to get at the reason underlying the decision, and
no compliment to a woman to measure her char- the Massachusetts Court put it upon the.ground
acter for truth by the same standard that you do of the loss of moral principle. This testimony
that of a man's, predicated upon character for is admitted upon the ground that the prostitute,
chastity. What de.-!troys the standing of the one by her life of vice, has so impaired her moral
iu all the walks of life has no effect whatever on sense that the obligation to speak the truth is
vhe standing for truth of the other. Thus in no longer binding, or has become more or less
Bank v. Strvker, 3 Wheeler Cr. Cas. 332, it is lax. If this be true of the female, why not true
said: 'Adultery has been committed openly by of her habitual companions; and why, though
distingnished and otherwise honorable members there be degrees iu the vice, may not a man's
[of the bar] as well in Great Britain as in our disregard of the laws of chastity, which compel
own country, yet the offending party has not his association with the prc'titute, be shown as
been supposed to destroy the force of the obli- tending to prove a disposition to lightly regard
gation which they feel from the oath of office.' the obligations of his oath. The rule only ad-
])r. Johnson said, in discussing the difference of mits the evidence when it has ripened into a
turpitude between lewdness in a man and in a wo- general reputation for the vice. For my part, I
man, ' that he would not receive back a daughter think it rests upon the same foundation whether
because her husband, in the mere wantonness of the witness be male or female ").
appetite, had gone into the servant girl.' And
1065
§ 924 TESTIMONIAL IMPEACHMENT. [Chap. XXX
opposing testimony. The trial is thus given indirectly a flavor of filth and
rancor which is at once unnecessary and harmful to justice. Logically, almost
any specific trait might be invoked for the purpose of this attack ; practically,
the usage is confine;! to a few of the more disagreeable ones.*
§ 925. Same : Accused's Bad Character as Witness and as Party, distin-
guished. The prosecution in a criminal case may not use the accused's bad
character as evidence that he probably did the act charged, if the accused has
not himself first attempted to use his good character in his exoneration (ante,
§§ 57, 58). Moreover, even when that condition is fulfilled, both the defence
and the prosecution may use only the character for the trait appropriate to
the crime charged (anie, § 59). On the other hand, if the accused has taken
the stand as a witness, the prosecution may impeach him as a witness {ante,
§ 890). From these principles it follows that the prosecution, when thus
impeaching the accused as a witness, may introduce his character for veracity
onl/f, except in those jurisdictions where impeachment is allowed to include
general bad character or a specific bad trait ; but that it may do this regard-
less of whether the accused has attempted to use his good character as
relevant to his innocence.^
§ 926. Same : Use of Prior Convictions and other Instances of Miscon-
duct. In those jurisdictions in which veracity-character alone is allowed to
be used to impeach, it would logically follow that when particular instances
of misconduct are allowed to be used as throwing light on credibility — that
is to say, conviction of crime, when shown by extrinsic evidence, aiid other
misconduct, when brought out on cross-examination (post, §§ 980, 981), —
only such instances should be used as are relevant to show a lack of truth-
fulness of disposition, — for example, forgery, cheating, and the like. Entire
consistency, however, is not shown in thus carrying out the strict principle.
In the first place, conviction of crime is everywhere allowed to be used as
affecting credibiUty of character, and while distinctions are sometimes made
as to the grade of the crime, little effort is made to employ those crimes only
which directly involve lack of honesty (post, § 980). In the second place, a
few Courts, in dealing with the use of specific misconduct on cross-examina-
tion, permit the use of such misconduct only as directly bears on credibility,
i.e. truthfulness; but most Courts make no attempt to do this, although
logic and policy alike require such a restriction (post, § 982).
3 The rulings are collected, for convenience, Colo. 2.3, 62 Pac. 833 (character as witness onlv,
ante § 923. allowable); 1889, Keyes v. ^tate, 122 Ind. 527,
_ ^1883, Dolan v. State, 81 Ala. 11, 18. 1 So. 531,23 N. E. 1097 (general bad charaiter, al-
-07 (general character admissible, but " only to lowed) ; 1888, Loekard v. Com., 87 Ky. 201, 204,
the extent it affected his credibility," and thus 8 S. W. 266 (similar) ; 189.5 Barton o. Com.,
lint character for turbulence) ; 1891, Mitchell r. id. ,32 S. W. 172 (similarl ; 1901,Calhoon
btate, 94 id. 68,7.% 10 So. 518 (" iiuiuiry into his v. Com., Kv. , 64 S. W. 965 (cliaracter as
genera character, not restricted to veracity, is witness only, allowed ; compare the Kentucky
E'"'?,!!''', !891. Jones,.. State, 96 id. 102,105,11 rule an(e, § 923) ; 1903, State v Casev, 110 La.
ho. 399 (smilar) ; 1896, I'eople v. Hickman, 113 , 34 So. 746 ; 1897, State r. TtaxIot] 121 N. C.
l^aL 80, 4o 1 ac. 175 (allowing against a defend- 674, 28 S. E. 493 (general character, allowed).
?oL'^'J, '"I,"""? ^s to the statutory qualities) ; For the use of particular instances ofmiscon-
1 898, People v. Prather, 120 id. 660, 53 I'ac. 259 duct on cross-examination, see post, § 2277.
(same) ; 1898, People ... Silva, 121 id. 668, 54 For the accuseds use of his good character as
i'ac. 146 (same); 1900, Herreu v. People, 28 witness before itnpeachment, see post, I llOi.
1066
§§920-940] MORAL CHAEACTEE; TIME. §928
§ 927. Time of Character; Theory. No real dispute as to principle or
policy is here to be found ; the differences of ruling that occur are due al-
most entirely either to an erroneous application of admitted principles or to
a confusion of other and unrelated principles with the matter in hand.
On analyzing the nature of the argument from witness' character, we find
it to be really this : " The moral qualities of the person who is speaking to us
from the stand will throw some light on the probability of his truthfulness,
because as he speaks they will influence him to be sincere or the reverse ; let
us therefore inquire into his quality in that respect." Obviously, our argu-
ment, because it believes in the present influence of the testifier's disposition
upon his testimony, expects and requires us to exhibit to the tribunal his
present character. This much seems indisputable. But it is equally obvious
that the nature of the witness' character at the precise moment of his utter-
ance is practically not ascertainable directly. We may have to go back only
an hour or a day or a week, but we are at least going back some space of
time when we call for either personal knowledge (of another witness) or
reputation, which cannot possibly carry the proof down to the precise mo-
ment of utterance ; and, besides this, the character of a former period, more
or less distant, always enters into every estimate (reputed or individual) of
character, even though it may be expressly predicated as of the present mo-
ment. Nevertheless, there is nothing improper in thus resorting, in part or
entirely, to the character of a prior time. We are simply adding another
step to the argument ; for while first using present character to throw light
on the probability of speaking the truth, we then have this present character
to prove in its turn, and we argue from prior character to the probability of
its persistence at the time of utterance. This second step of argument is an
entirely legitimate one ; it is merely the ordinary argument (ante, §§ 225,
233) from a past condition, having features of permanency, to the continu-
ance of the condition at a later time.
The logical analysis, then, is : (1) Present character, at the time of speak-
ing, is evidence upon the probability of sincere speaking ; and (2) character
at some prior time, more or less distant, is evidence to prove the premise (i. e.
present character) of the first inference. Thus the source of possible confu-
sion appears. For if we were to insist upon a categorical answer to the ques-
tion, " May character at a prior time be used to show that the witness is
probably not speaking the truth ? ", the answer must be a paradox. Prior
character is not usable, as showing directly that the witness is now speaking
truthfully or the reverse ; yet prior character is admissible to show present
character, and the latter to show the proposition desired. Confronted by
such a paradox, many Courts, not seeing the explanation, have thought them-
selves obliged to accept one or the other answer unqualifiedly ; and the result
has naturally been some confusion and error of principle.
§ 928. Same : the Competing Rules as to Prior Character. What, then,
should be the rule as to the use of character at a prior time ?
(1) On principle, the correct solution seems to be that prior character at
VOL. II.— 5 1067
§ 928 TESTIMONIAL IMPEACHMENT. [Chap. XXX
any time may he admitted, as being relevant to show present character,
and therefore, indirectly, to show the probability as to truth-speaking. The
only limitation to be applied would be that applicable to all use of a former
condition to show a present one {ante, §§ 43, 233), i. e. that the character
must not be so distant in time as to be void of real probative value in show-
ing present character ; this limitation to be applied in the discretion of the
trial Court :
1838, Cowen, J., in People v. Abbot, 19 Wend. 200: "It was proposed to follow that out
[the impeachment of character] by showing that it was also bad several years before.
The inquiry is not in its nature limited as to time. The character of the habitual liar or
perjurer seven years since would go at least to fortify the testimony which should now
fix the same character to the same person. Witnesses must speak on this subject in the
past tense. Character cannot be brought into court and shown to them at the moment
of trial. A long-established character for good or for evil is always more striking and
more to he relied on than that of a day, a month, or a year."
1847, Beardsley, J., in Sleeper v. Van Middlesworih, i. Den. 429 (upon an ofier of the
character of the witness four years before, when living elsewhere) : " In speaking to the
question of character, witnesses are never restricted to the precise time when their testi-
mony is given. The nature of the inquiry precludes this, for the evidence must neces-
sarily refer to reports and reputation of which a knowledge had been acquired before the
witness came to the stand. To what period of time shall the inquiry be restricted ?
Shall it be to a day, a week, or a month ? All will agree that either would be too short,
and that the inquiry may be pushed further. ... It might be too much to say that a
character, when once formed, is presumed to remain unchanged for life. Still, the law,
founded on a full knowledge and just appreciation of the general course of human affairs,
indulges a strong presumption against any sudden change in the moral as well as the
mental and social condition of man. ... It is not, looking to common experience in
human conduct, generally found to be true that a thorough change from a bad to a good
character is wrought within four years. It may and, it is hoped, often does occur; but
such is not the common course in life. . . . No certain limit, in point of duration, can be
laid down for inquiries like this."
1894, Campbell, C. J., in Norwood §• B. Co. v. Andrews, 71 Miss. 641, 16 So. 262 (ad-
mitting bad character in another place two years before) : " To hold otherwise would be
to preclude the possibility of impeaching the character of one who had changed his resi-
dence, in many cases. The rule must work both ways; and, under the rule we condemn,
one who had maintained an unblemished reputation through a long life, in case of removal,
and had occasion in his new home to prove his good character where he had spent his life,
would be denied the right to call witnesses who had known him at his former residence,
because not acquainted with his reputation at his new place of abode ; and one who had
not lived long enough' at a place to become known there would not be able to prove
reputation at all."
(2) Another solution is that prior character should not be resorted to unless
for some reason present character cannot he directly shown, either by the wit-
ness on the stand or by any witness at all. This solution is not an incorrect
one on principle, i. e. it recognizes the relevancy of prior character ; but it is
objectionable in policy, because it imposes conditions not always kept in
mind in the hurry of a trial, and because it complicates the proof by un-
necessary restrictions. Moreover, these conditions for admitting such evi-
dence vary in different jurisdictions and are never systematically laid down
in advance so as to be easy of application :
1068
§§920-940] MORAL CHARACTER; TIME. §928
1858, J5arre«, J., in Willard v. GoodenaugJi, 30 Vt. 397: "It is well settled that the
question should be ' What is the general character or reputation for truth ? "... It may
be proper under some circumstances — as in case an impeaching witness should answer
the question thus put, that he does not know what the present character is, or that he has
not heard it talked about recently, or in some other way implying his knowledge of former
bad character — to inquire of him as to his knowledge of it at former periods. But we
think this should be done only as following upon such a kind of answer to the questions
above indicated. The present character is the point in issue. What the character had
formerly been is relevant only as it blends with the continuous web of life and tinges its
present texture."
1896, Brown, J., in Broion v. Perez, 89 Tex. 282, 34 S. W. 725 (leaving it largely to
the discretion of the trial Court) : " It may safely be said that where the evidence of a
witness is such that it fairly raises the issue of his veracity, or where the testimony of
other witnesses relating to his character at or near the time of the trial tends to impeach
his character for truth and veracity, or in case the person whose character is in issue has
removed beyond the jurisdiction of the court, or has been transient, so that he has no
fixed and known residence for a time sufficient to make a reputation for truthfulness,
resort may be had to evidence of the reputation of such witness at the place of his former
residence, and at a time remote from the time of trial. No definite rule can be stated
which will apply to all cases."
(3) A third solution altogether excludes prior character. This is wholly
incorrect on principle, because it is founded on a fallacious analysis of the
problem. It is objectionable in policy, because it excludes a class of evi-
dence often meritorious in itself and sometimes the sole kind that is
available :
1878, Brewer, J., in Fisher v. Conway, 21 Kan. 25 : " Impeaching testimony is for the
purpose of discrediting the witness by showing that the community in which he lives do
not believe what he says, — that he is such a notorious liar that he is generally dis-
believed. It is his present credibility that is to be attacked. Is he now to be believed ?
What do his neighbors think and say of him at the present time ? not. What did they
think and say months or years ago ? . . . Surely a man's reputation may have changed
very much in that length of time [two years and a half]. If it were bad, he may have
reformed; if it were good, he may have become a moral, wreck."
Of these three competing rules, each finds a following in some jurisdictions ;
but the last is little favored, and the first is tending to predominate.^
* The following citations include also the improperly rejected) ; Connecticut : 1 846, Cald-
rulings upon an accused's prior character (ante, well v. State, 17 Conn. 467, 472 (bawdy-house;
§ 60), which rest upon precisely the same prin- character at a prior time, admitted); Georgia:
ciple: Alabama: 1854, Martin b. Martin, 2.'> 1888, Watkins u. State, 82 Ga. 231, 8 S. E. 87.5
Ala. 210 (in another place, whence the person (former character admissible subject to discre-
had shortly before removed, admitted); 1878, tion; here a character eight years before in
Kelly V. State, 60 id. 19 (character in a different Georgia, the witness having been since absent,
place, three years before, admitted ) ; 1895, Yar- admitted); Illinois: 1855, Holmes v. Statcler,
hrough V. State, 105 id. 43, 16 So. 758 (charac- 17 111. 453 (character in another State than his
ter years before, in a different town, admitted) ; present residence, for a period of ten years,
1895, Prater o. State, 107 Ala. 26, 18 So. 239 ending eight years before the trial, admitted;
(character in h, town six miles away where the "if the witness did so reform, it was quite as
witness formerly lived; admitted); Arkansas: easy for the plaintiff to prove that fact as for
1874, Snow D. Grace, 29 Ark. 131, 136 (within the defendant to prove that his character still
the discretion of the trial Court as to surprise continued bad ") ; 1877, Blackburn v. Mann, 85
and remoteness ; here character seven years id. 222 (preceding case approved ) ; 1 897, Kirk-
before in another place was received) ; 1877, ham v. People, 170 id. 9, 48 N. E. 465 (repnta-
Lawson v. State, 32 id. 220, 222 (same ; charac- tion at a place left by the witness four years
ter two years before in another place, held before, admissible) ; Indiana : citations from this
1069
929
TESTIMONIAL IMPEACHMENT.
[Chap. XXX
§ 929.' Same : Character post litem mptam ; Effect of Hearsay Rule. So
far as the foregoing theory is concerned, it is immaterial whether the infer-
jnrisdiction on this point may he ignored by
other Courts ; during more than sixty years the
rulings vacillated : 1841, Walker v. State, 6
Blackf. 3 (at time of trial only) ; 1850, King v.
Hereey, 2 Ind. 403 (good character before suit
begun, proved in rebuttal of bad character after
suit begun) ; 1851, Bucker v. Beaty, 3 id. 71
(former bad character not admissible, except to
corroborate a bad one at time of trial) ; 1 862,
Rogers v. Lewis, 19 ind. 405 (same as Walker's
Case); 1863, Aurora v. Cobb, 21 id. 510 (same) ;
1866, Abshire v. Mather, 27 id. 381, 384 (at time
of trial only, though there may be exceptions,
the need of which the impeacher must show;
here character five years before was excluded) ;
1870, Chance v. R. Co., 32 id 475 (like Walker's
Case) ; 1873, Indianapolis P. & C. E. Co. v.
Anthony, 43 id. 192, semhle (same) ; 1874, Strat-
ton V. State, 45 id. 468, 472 (" it has never been
held that tlie testimony must have reference to
that exact time [of his testimony] " ; so that
evidence is to be received " of his character
within a reasonable time before the trial," as
pointing forward to his character at the time of
tPStifying, which is the objective point; here
admitting character two years before in another
region) ; 1877, Rawles v. State, 56 id. 439 (such
evidence "should have reference to . . . the
time he testified"; hence a question not so
specifying the time was held improper) ; 1879,
Louisville N. A. & C. R. Co. v. Richardson, 66
id. 50 (admitting character six weeks before the
trial, the witness having then removed else-
where) ; 1879, Smock v. Pierson, 68 id. 405
(" must relate to the time the witness is testi-
fying") ; 1882, Memphis & 0. R. P. Co. v. Mc-
Cool, 83 id. 392 (where bad reputation at the
time of the trial in B. had been shown, further
evidence of bad reputation two or three years
before in another town was admitted ; the pre-
ceding conflict in rulings being noted) ; 1888,
Pape V. Wright, 116 id. 509, 19 N. E. 459 ("a
time reasonably near the time of the examina-
tion " ; here reputation two months before was
admitted); 1890, Sage v. State, 127 id. 15, 27,
26 N. E. 667 (admitting character seven years
before, the witness having been in the mean-
time in jail at another place; yet the general
principle is treated as doubtful and unsettled) :
1897, Hank v. State, 148 id. 238, 46 N, E. 127,'
47 N. E. 465 (after evidencing present char-
acter, character at another place, fifteen months
before, was admitted ; the rule allowing charac-
ter at the time of the trial " or somewhere
reasonably near ") ; 1902, Lake Lighting Co. t>.
Lewis, 29 Ind. App. 164, 64 N. E. 35 (character
"within a reasonable time before the trial"
is admissible, the trial Court to determine) ;
Iowa: 1887, Banners v. McClelland, 74 la. 318,
322, 37 N. W. 389 (reputation in another place
a few miles away, before and after the time in
question, admitted) ; 1889, State v. Potts, 78 id.
659, 43 N. W. 534 (reputation in another place
five years before, excluded, the witness having
■resided continuously for that period at the place
of trial, and his bad character there being also
1070
offered ; semble, that character at a former time
and other place is admissible only where the
residence at the time of trial has been brief) ;
1898, Schoep v. Ins. Co., 104 id. 356, 73 N. W. 825
(in the absence of permanent residence, reputa-
tion at a place lived in a year before for eight
months, received) ; 1900, McGuire v. Kenefick,
111 id. 147, 82 N. W. 485 (reputation in another
town seven years before, not admitted ; other-
wise if he had only recently acquired residence
at his present place) ; 1902, State v. Prins, —
id. — , 91 N. W. 758 (reputation in another city
several years before, admitted on the facts) ;
Kansas: 1878, Fisher v. Conway, 21 Kan. 18,
25, semble (character at the time of trial only) ;
1891, Coates v. Sulan, 46 id. 341, 343, 26
Pac. 720 (character at C, whence he had re-
moved to his present place less than a year
before, admitted ; " there is no arbitrary iron-
clad rule in relation to such evidence; some-
times it may be sought some distance away
both in point of time and space"); Kentucky:
1869, Young v. Com., 6 Bush 317 (character six
years before, in another county, excluded ; the
time of testifying being the true standpoint);
1874, Marion v. Lambert, 10 id. 295 (no limita-
tion to character at the time of the trial) ; 1879,
Mitchell V. Com., 78 Ky. 219 (anterior bad
character elsewhere, admitted only when present
character at the place is unavailable or is prima
facie shown bad) ; 1895, Turner v. King, 98 id.
253, 32 S. W. 941 (must not be too long liefore ;
reputation for chastity sixteen years before, ex-
cluded) ; Louisiana : 1893, State v. Taylor, 45
La. An. 605, 609, 12 So. 927 (character twelve
miles away, five years before, excluded) ; Massa-
chusetts: 1863, Parkhurst v. Ketchnm, 6 All.
408 (general bad character, ten years before,
admitted); 1867, Com. v. Billings, 97 Mass.
405 (admitting character a year and a half pre-
vious) ; Michigan: 1856, Webber v. Hanke,
4 Mich. 198, 204 (usually character in his pres-
ent residence m.ust be asked ; the discretion of
the trial Court raay^elax this general rule ; here
the character five years before In Europe was
held improperly received, the witness having
lived continuously in this country since that
time) ; 1874, Hamilton !;. People, 29 id. 173. 188
(where domicil has changed, reputation in both
places within a reasonable time is admissible ;
other possibilities obscurely mentioned) ; 1875,
Keator v. People, 32 id. 485 (character at another
place four years before the trial, admitted on
the circumstances, the witness having led a rov-
ing life) ; Mississippi: 1894, Norwood & B. Co.
V. Andrews, 71 Miss. 641, 16 So. 262 (bad char-
acter in a neighborhood whence the witness had
removed two years before, admitted ; .see quota-
tion supra) ; Missouri: 1881, Wood v. Matthews,
73 Mo. 477 (character at the time of trial only ;
following the early Indiana rulings ; here exclud-
ing character three vears before) ; 1887, Wad-
dingham v. Hulett, 92 id. 533, 5 S. W. 2T, semble
(same principle); 1893, State v. Pettit, 119 id.
410, 414 (character of the deceased more than
ten years before, excluded) ; 1898, State v. Sum-
§§ 920-940]
MOEAL CHAEACTEE; TIMK
§ 929
eace is from prior or subsequent character ; that inference, like its general
type, the argument from prior or subsequent condition {ante, §§ 225, 233, 241),
stands on precisely the same footing in both cases. If character in 1875
indicates probatively the future character in 1877, then by the same token
character in 1877 indicates the past character in 1875. Moreover, witness-
character must always, except in one case, involve the argument from
prior character exclusively, i. e. prior to the time of his testifying ; the
excepted case being that in which the impeaching witness predicates the
character as subsequent to the moment of the other's testimony, and this
practically can only be where the impeached testimony was given by depo-
sition before trial begun. The fact that the character offered in evidence is
in this single instance a subsequent character does not affect its relevancy at
all. Thus, the mere circumstance that the character offered is character
after trial begun does not affect its admissibility; first, because it will
usually still be prior character (i. e. prior to the time of testimony), and,
next, because in the single case when it is really subsequent, its relevancy is
the same.
mar, 143 id. 220, 45 S. "W. 254 (character at the
time of trial is the material thing ; though it
may be stated aa ranging back before that time ;
here, more than three years before was held too
remote on the facts) ; 1900, State v. Miller, 156
id. 76, 56 S. W. 907 (not to be confined " to the
immediate present ") ; Nebraska : 1896, Davison
V. Crnse, 47 Nebr. 829, 66 N. W. 823 (bastardy
proceedings ; chastity before probable period of
gestation excluded) ; 1901, Faulkner o. Gilbert,
61 id. 602, 85 N. W. 843 (reputation in another
county several years before, excluded) ; New
Hampshire: 1861, State v. Forschner, 43 N. H.
89 (it was conceded that a witness' character
before trial could be received as indicating char-
acter at the time of trial, since " a state of facts
proved to have once existed is presumed to con-
tinue " ; but the character for chastity of the
prosecutrix in a rape charge must be her char-
acter at the time of the alleged rape, and not any
later, since " the bad character a person may
have now is not assumed to have always ex-
isted " ; but it is not clear whether the Court,
in promulgating this illogical doctrine, rest
solely on the above principle ; for they also in-
voke the doctrine that a reputation formed post
litem motam is untrustworthy; post, §1618);
New Jersey: 1898, Shnster v. State, 62 N. J. L.
521, 41 Atl. 701 (reputation in another place
eighteen years before ; excluded in trial Court's
discretion ) ; New York : 1 838, People u. Abbot,
19 Wend. 200 (prior character admissible; see
quotation supra); 1842, Losee o. Losee, 2 Hill
613 (merely holds that the time of testifying is
to be the starting-point, and does not declare
that the character at that time cannot be shown
by the character at a former time) ; 1847, Sleeper
V. Van Middlesworth, 4 Den. 429 (prior char-
acter admissible ; see quotation supra) ; 1 865,
Graham v. Chrystal, 2 Abb. App. 265 (admit-
ting character eight or ten years before) ; North
Carolina: 1878, State v. Lanier, 79 N. C. 622
(character two or three years before, in another
1071
town, admitted) ; Ohio ; 1877, Hamilton v. State,
34 Oh. St. 82 (character two years before, the
witness having ever since been in prison, ad-
mitted) ; Pennsylvania: 1850, Morss v. Palmer,
15 Pa. St. 51, 56 (character more than ten years
before, in another county, admitted in rebuttal) ;
1897, Smith o. Hine, 179 id. 203, 36 Atl. 222,
semble (character at the time of trial only, and
not prior to that time) ; 1898, Miller v. Miller,
187 id. 572, 41 Atl. 277 (character four years
before, excluded) ; Rhode Island: 1896, Vaughn
V. Clarkson, — R. I. — ,34 Atl. 989 (character
five years before, in England, excluded) ; Ten-
nessee : 1896, Fry v. State, 96 Tenn. 467, 35
S. W. 883 (character in another State six years
before, held not too remote, as tending to show
character at the time of the alleged offence) ;
Texas : 1864, Ayres v. Duprey, 27 Tex. 593, 599
(left undecided) ; 1879, Johnson v. Brown, 51 id.
65, 75 (a charge referring the witness' credibility
to the time of the act spoken of, not the time of
trial, held properly refused) ; 1 886, Mynatt v.
Hudson, 66 Tex. 66, 17 S. W. 396 (admitting
bad reputation in a different county four years
beforfe where he was a permanent resident) ;
1896, Brown v. Perez, 89 id. 282, 34 S. W. 725
(see quotation supra); United States: 1859,
Teese v. Huntington, 23 How. 2, 14 (prior char-
acter admissible ; but the time must not be " so
remote from the transaction involved in the
controversy as thereby to become entirely un-
satisfactory and immaterial ") ; Vermont : 1 858,
Willard v. Goodenough, 30 Vt. 397 (see quota-
tion supra); 1882, Amidon J). Hosley, 54 id. 25
(same rule) ; Wisconsin : 1902, State v. Chit-
tenden, — Wis. — , 88 N. W. 588 (under a
statute providing for licenses to graduates of a
" reputable " dental college, the reputation of
a college one year before the applicant's gradua-
tion may be sufilcient) ; 1903, State v. Knight,
— id. — , 95 N. W. 390 (reputation at another
town two years before, admitted ; good opinion
by Dodge, J.).
§ 929 TESTIMONIAL IMPEACHMENT. [Chap. XXX
But when the emphasis is upon the modes of evidencing character, a differ-
ent question may arise. If reputation is the kind of evidence chosen, and if
the reputation is offered as of a time after trial begun, this evidence must face
the Hearsay rule and its cardinal principle that the hearsay offered must
have been uttered under impartial conditions. Whether a reputation formed
post litem motam is trustworthy, from that point of view, may be a matter
for hesitation ; and we thus find some Courts declining to admit reputation-
evidence of character when the reputation is stated as of a time after trial
begun or controversy aroused. But this is distinctly and solely a question of
the Hearsay rule, and has nothing to do with the present principle. Never-
theless the two have sometimes been confused, and character after trial begun
has been excluded as if a rule of Eelevancy, and not of Hearsay, led to this.^
§ 930. Place of Character. A similar confusion is apt to occur in rulings
as to the place where the character is predicated. From the point of view
of Eelevancy, place or locality has no bearing on the present principle. The
actual qualities of the man himself must be the same in whatever place
he is. Whether we take his character at Millville or at Sierra is in itself
immaterial.
Difference of place, however, does enter the question from two other points
of view. (1) First, character in another place must of course always be
character at another time ; and hence, if at the present (and therefore pri-
marily important) time he is at Millville, his character when he was at
Sierra immediately raises the question whether character at a prior time is
admissible. But it is here the priority of time, and not the difference of
place, that raises the question of relevancy ; the difference of place is merely
an immaterial incident. Wherever prior character at another place is offered,
the circumstance of priority of time is the material one.^ (2) From the point of
view of the Hearsay rule and its exception for Eeputation, the place becomes
important. If A lives at Millville, and has never been in Sierra, one hun-
dred miles away, it is difficult to see how a trustworthy reputation about
his character can arise in the latter place ; for reputation must arise in the
community of residence, where he moves and exhibits his conduct. Hence,
under the Hearsay exception for Eeputation as to Character, various questions
arise as to the place from which an admissible reputation must be offered.
These, however, have nothing to do with the present principle, namely, the
conditions under which actual character is relevant to show the probability
of truth-telling, but with an entirely different one, namely, in proving this
actual character by reputation, the conditions under which such hearsay will
be admitted.^
B. Insanity, Intoxication, and other Organic Capacity.
§ 931. In general. We have already seen that the general organic ca-
pacity to observe, recollect, and narrate, must exist to a certain minimum
1 The rulings are collected post, § 1618. ' The rulings are collected post, §§ 1615,
^ The rulings have been placed ante, § 928. 1616.
1072
§§ 920-940] INSANITY, INTOXICATION, ETC. § 931
degree in order that the witness may be admitted at all. Insanity, idiocy,
and the like, if existing to such a degree as practically to destroy the mental
capacities, render the witness incompetent to that extent {ante, §§ 492-500).
But the defect may not exist to such a degree, and yet the capacity may by
no means be of the normal sort ; and this may therefore be made to appear
for the purpose of discrediting the witness. The modern tendency, as already
noted {ante, § 492), is to avoid treating any such mental condition as a cause
of total incompetency, except in extreme cases, and to admit the person as a
witness, leaving the defect in question to have whatever weight it deserves
as discrediting the witness' powers of observation, recollection, or commu-
nication. This tendency enlarges and emphasizes the application of the
present principle.
The exact bearing of such evidence is sometimes misunderstood, by con-
fusion with the principle {post, § 979) that a witness' character cannot be
attacked by extrinsic testimony of particular acts of misconduct. But the
difference between the two can be easily appreciated. (1) Evidence that a
witness was drunk at the time of an affray to which he testifies discredits
him by involving a greater or less inability on his part to get correct ini-
pressions of what he saw or might have seen ; the drunkenness means,
and might be translated^ " derangement of the nervous system caused by
alcoholic stimulation," i. e. the impeacher, by alleging intoxication, implies in
the very word an affection (more or less extensive) of the power of observa-
tion, precisely as he does in asserting insanity. But (2) the circumstance
that the witness was drunk a month before the affair has obviously no such
significance, and in itself in no way affects testimonial capacity at the time
of the affray ; it can be relevant only as tending to show a dissolute char-
acter, and in that aspect it is of course obnoxious to the rule above referred
to. That rule, which in truth has no bearing whatever on matters involving
a defective organic capacity, is probably the motive of some of the rulings
which erroneously exclude the present sort of evidence. They must be re-
garded as unsound ; for there is no recognized principle or rule to exclude
such evidence except so far as is contained in the principle now to be
dealt with.
Since the theory of this evidence is that any defect of capacity, insufficient
to exclude, and yet involving less than the normal testimonial capacity,
should legitimately discredit the witness, carrying whatever weight it may
have in a given case, the only proper limit upon such evidence would seem
to be as follows : Any fact importing in itself a defective power of observa-
tion (at the time of the matter testified to), or of recollection, or of communi-
cation, is admissible, provided the power is substantially defective as judged
by the average standard of faculties and is not merely a slight variation
within the range of the average. The latter limitation is necessary for sev^
eral reasons: (1) Courts cannot and do not attempt to take account of
trifling variations in such matters ; (2) the witness on the stand will in his
demeanor reveal ordinary peculiarities of that sort ; (3) the trial would be
1073
§ 931 TESTIMONIAL IMPEACHMENT. [Chap. XXX
liable to be unduly protracted and confused by raising such issues ; (4) there
is no reason why, when A testifies to some trifling peculiarity of B, we
should regard B rather than A as the peculiar one. All these reasons dis-
appear if the resort is only to substantial deviations from the normal
standard.
What specific defects, then, may be shown for this purpose ? It must be
remembered (as noted ante, § 478) that the faculties of Observation (Knowl-
edge), EecoUection, and Communication are all called into play in every piece
of testimony ; and hence a defect affecting any one of these three faculties at
the time it, is required would be relevant.
§ 932. Insanity. The existence of a derangement of the sort termed in-
sanity is admissible to discredit, provided that it affected the witness at the
time of the affair testified to (i. e. his power of Observation), or while on the
stand {i. e. his power of EecoUection or Narration), or in the meantime (so as
to cripple his powers of Recollection).^
§ 933. Intoxication. Intoxication, if it is of such a degree as to deserve
the name, involves a numbing of the faculties so as to affect the capacity
to observe, to recollect, or to communicate ; and is therefore admissible to
impeach :
1861, Bigelow, C. J., in Com. v. Fitzgerald, 2 All. 297: "It was certainly competent
for the defendant to show that the witness had been drinking to such excess as to impair
his ability to see and understand what was passing before him at the time and to recol-
lect it afterwards so as to testify intelligibly and with accuracy."
1895, Window, J., in Mace v. Reed, 89 Wis. 440, 62 N. W. 186 : "It would certainly
have been competent to show that the witness was not in fact present, or that, although
present, he was blind or asleep or in a condition of stupefaction, so that he could not
apprehend what was going on about him. The proof that he was intoxicated is of the
same general character. It is not strictly impeaching, but it tends to show that his facul-
ties of observation were either entirely gone or much impaired.' ' ^
1 The rulings are few, but the principle is held, even taken together, to be inadmissible to
unquestioned : 1692, Duke of Norfolk's Divorce, impeach a witness unless direct testimony of his
12 How. St. Tr. 912 (insanity) ; 1775, Fowke's own insanity nearer the time of the events was
Trial, 20 id. 1175 ("he is not a sensible man, offered).
and yet not quite an ideot") ; 1877, Allen v. For the mode of evidencing insanity, see ante.
State, 60 Ala. 19 (that a weak-witted negro- §§ 227-23."5, post, § 99.3.
witness entertained certain superstitions was i 1794, Walker's Trial, 23 How. St. Tr. 1157
held not to bear on his powers of observation) ; (" You do not know how much liquor he had
1805, Tuttle V. Kussell, 2 Day 202 (insanity at drunk V "No, I do not." "Do you know
time of event); 1859, Holcomb v. Holcomb, 28 whether he had drank anv?" "He had had
Conn. 179 (insanity); 1895, State v. Hayward, a little, bat he was quite" sensible; he knew
62 Minn. 474, 65 N. W. 63 (this evidence is not what he was saying and doing." "Just as
merely for the judge on the preliminary ques- much as he knows now ? " " He was not half
tion of competency, but goes to the jury to so much in liquor then as he is now"); 1878,
affect credibility) ; 1879, Free v. Buckingham, Lester v. State, 32 Ark. 730 (a confession);
59 N. H. 219, 225 (cross-examination of the plain- 1805, Tuttle v. Russell, 2 Day 202 ; 1879, State
tiff as to whether the sjjirit of Daniel Webster v. Feltes, 51 la. 496, 1 N. W. 755 ; 1883, State v.
was present aiding him in the trial, held allow- Costello, 62 id. 407, 17 N. W. 605 ; 1894, State
able or not, in discretion); 1862, Fairchild v. v. Nolan, 92 id. 491, 61 N. W. 181 ; 1857, Com.
Bascomb, 35 Vt. 417 (a disease of the brain some v. Howe, 9 Gray 112; 1861, Com. v. Fitzgerald,
time before the trial, affecting Observation and 2 All. 297; 1871, Strang v. People, 24 ivfich. I,
KecoUection). Ancestral or collateral insanity 7; 1881, State v. Grear, 28 Minn. 426; 1894,
is admissible only on the conditions noted ante, WiUis v. State, 43 Nebr. 102, 61 N. W. 254;
§232: 1896, State v. Hayward, 62 Minn, 474, 1862, Jefferds v. People, 5 Park. Cr. C. 547;
65 N. W. 63 (ancestors' insanity, plus evidence 1893, State v. Rollins, 113 N. C. 722, 732, 18
of temporary and different prior illusions, was S. E. 394; 1823, Briudle v. M'llvaine, 10 S. &
1074
§§ 920-940] IlSrTOXICATION, DISEASE, ETC. § 934
But a general habit of intemperance tells us nothing of the witness' testi-
monial incapacity except as it indicates actual intoxication at the time of the
event observed or the time of testifying; and hence, since in its bearing
upon moral character it does not involve the veracity- trait {ante, § 923), it
will usually not be admissible.^
§ 934. Disease, Age, Morphine Habit, and sundry Derangements. Any
diseased impairment of the testimonial powers, arising from whatever source,
ought also to be considered :
1879, Beck, C. J., in Alleman v. Stepp, 52 la. 627, 3 N. W. 636 : " Mental defects in the
witnesis, or loss or impairment of memory, will according to the observation of all men
detract from the credibility otherwise due a witness, just as surely as do moral defects.
It is not reasonable to hold that the law will permit impeachment of a witness by showing
the moral defects of his character, and will not permit impeachment by proof of defects
of memory caused by diseases of the body or mind. ... It is proper to say that the rule
we recognize extends no farther than to permit the impeachment of a witness by showing
an abnormal condition of the mind caused by disease or habits which impair the memory.
. . . The law can devise no standard of measurement or test of mind in its normal
condition."
Accordingly, the morphine habit, so far as it may have had such an effect,
should be received.^ An illness at the time of observing or narrating may
also be significant,^ as well as the condition of a dying declarant.^ A defect
of speech may detract from the weight of testimony communicated under that
disadvantage.*
An impairment of memory caused by disease or by old age or idiocy stands
on the same footing, and should be admissible.^ But the mere fact of being
R. 282, 285, semble; 1895, State v. Rhodes, 44 mental faculties was regarded as proper, but
S. C. 325, 21 S. E. 807, 22 S. E. 306; 1845, not a question as to the effect upon the witness'
Fleming v. State, 5 Humph. 564; 1890, Inter- veracity). Contra: 1898, Botkiu v. Cassady,
national & G. N. R. Co. v. Dyer, 76 Tex. 159, 106 la" 334, 76 N. W. 723 (taking morphine
13 S. W. 377 (asked on cross-examination); habitually, excluded); 1903, State v. King, 88
1895, Mace v. Reed, 89 Wis. 440, 62 N. W. 186. Minn. 175, 92 N. W. 965 (that a witness was a
For the mode of evidencing intoxication, see confirmed opium-eater, and that the use of
ante, § 235, post, § 993. opium " renders the user unreliable," excluded) ;
2 1846, Rector K. Rector, 8 111. 105, 117 (in- 1890, Franklin n. Franklin, 90 Tenn. 49, 16
temperance, admitted) ; 1849, Thayer v. Boyle, S. W. 557 (that the witness "had carried the
30 Me. 475 (here treated as a question of char- use of morphine and whiskey to such excess
acter, veracity-character alone being admissi- as to impair his mind and affect his moral
Me); 1850, Hoitt v. Moulton, 21 N. H. 586, character").
591 (intemperate habits, excluded, as veracity- ' 1878, State v. Brown, 48 la. 384 (illness at
character alone is admissible); 1898, Kuenster the time of confession); 1872, State v. Mat-
V. Woodhouse, 101 Wis. 216, 77 N. W. 165 thews, 66 N. C. 113 (a woman had made a con-
(hahitual intoxication during a given month, fession shortly after a childbirth),
admitted to show intoxication on a certain day ' 1895, Basye v. State, 45 Nebr. 261, 63 N. W.
of that month). 811 ; and cased cited post, §§ 1446, 1451.
^ 1858, McDowell!). Preston, 26 Ga. 535 (evi- * 1882, Quinn v. Halbert, 55 Vt. 228 (the
dence of general mental impairment or of tempo- witness could merely nod the head),
rary mental affection by laudanum, admissible); i* 1833, People v. Genuug, 11 Wend. 18 (that
1895, State i'. Gleim, 17 Mont. 17, 41 Pac. 998 the witness was "an old man, intemperate, and
(excluded, unless the witness was under its in- his mind and memory very much impaired ") ;
flnence at the time of the events or of the testi- 1876, Isler v. Dewey, 75 N. C. 466 (" that his
mony or unless it impaired her recollection) ; memory is weak naturally or has been impaired
1893, People i\ Webster, 139 N. Y. 73, 86, 34 by disease or age"); 1878, Lord v. Beard, 79id.
N._ E. "30 (that the witness was an habitual 12 (old-age paralysis). Contra: 1858, MerrittK.
opium-eater at the time of the events, admitted) ; Merritt, 20 111. 65,80 (that a witness' memory
1895, State v. Robinson, 12 Wash. 491, 41 was impaired by illness, excluded). Notdecided:
Pac. 884 (a question as to the effect upon the 1858, Carpenter v. Dame, 10 Ind. 125, 130 (that
1075
§ 934 TESTIMONIAL IMPEACHMENT. [Chap. XXX
endowed with a less satisfactory memory than other persons is something
less pronounced, and falls properly within that range of average variations
which constitutes normality, and its presence must be left to the cross-ex-
aminer to detect. No doubt the line may be sometimes hard to draw, but
the distinction of principle is clear between that general variation of all
powers which would be found in any given number of healthy persons, and
that specific impairment which, when associated with disease or with other
extensive mental derangement, marks the person as abnormal :
1864, Day, J., in Bell v. Sinner, 16 Oh. St. 46 : " The question presented by the record
is whether the credibility of a competent witness may be impeached by general evidence
that the witness is not possessed of ordinary intelligence or powers of mind. It would
not only be novel in practice, but would be entirely impracticable, to permit the parties
on the trial of a case to go into general proof as to the strength of the mental capacity of
the several witnesses. It might lead to as many collateral issues as there are witnesses,
and thus divert the minds of the triers from the substantial issues of the case. More-
over, if it be conceded that the credibility of a witness is to be graded in proportion to
his strength of intellect, the tribunal before which he testifies can better estimate his
capacity and the weight to which his testimony is entitled by his manner and by his
statements on cross-examination, than can ordinarily be done by the testimony and con-
flicting opinions of other witnesses as to the extent of his mental powers or the degree of
his intelligence. . . . The degree of credit to which he is entitled in the testimony given
cannot be practically better ascertained than by the usual tests, without resort to other
proof of his capacity." *
§ 935. Religious Belief. (1) On principle, the fact of a cacotheistic be-
lief (to use Bentham's word') should be admissible to cast doubt on the
witness' sense of duty to tell the truth ; and, at a time when it was sup-
posed that the believers in a certain form of religion universally subscribed
to and practised such a tenet (i. e. that it may be righteous to lie upon the
stand) such evidence was no doubt sometimes considered :
1679, L. C. J. Scroggs, in Langhorn's Trial, 7 How. St. Tr. 4S1 (to the juiy, comment-
ing on the testimony of certain young Roman Catholic students who came over from
Flanders to testify for the defendant) : " They came here to defend all the Roman
Catholics, whom we would hang here for a plot. . . . Did not the principles of their
religion so teach and make us to know that they will not stick at any wickedness to pro-
pagate it ? Did not the best and chiefest of the doctors of their church preach and
print it? Did not they teach and practise all sorts of equivocations, and that a lie does
good service, if it be for the propagation of the faith ? . . . The way they take to come
off from all vows, oaths, and sacraments, by dispensations beforehand or indulgence and
pardons afterwards, is a thing still so much worse that they are really unfit for human
society. . . . [These doctrines are] such that it does take away a great part of the faith
a deponent was " not of sound memory," spoken sues "). Apparently contra, and vet rea<:onable :
of by the Court as "a weakness in a given 1862, Com. v. Cooper, 5 All. 497 (admitting a
6 ,^o„J . u "°'J«cided). _ tendency oi tlie witness to mistake tlie identity
.r T. ^', ?°°S K. l<rmt Co., 112 Cal. 679, of persons) ; 1821, Mechanics' & F. Bank v.
45 I'ae. 7 (weakness of memory, excluded, un- Smith, 19 Johns. 123 (question allowed " whether
less involnng mental derangement); 1856, he was in the constant habit of making mis-
Goodwyn i, Goodwyn 20G.1.620 (Lumpkin, J.: takes," to show that a particular entry by a
It would be attended with great mconvenience teller was erroneous). Compare the other modes
and hmder and delay the progress of business, of exposing a defective memory : post, S 995.
by turnmg aside to form these collateral is- l Ante,% 518.
1076
§§ 920-940] EELIGIOUS BELIEF, EACE. § 936
■that should be given to these witnesses. Nevertheless, we must be fair and should hear
them, if we could not answer what they alledge by evidence to the contrary." ^
But in modem times, whether because no religion is credited with possessing
such a tenet, or because religious disputes less affect men's feelings, such
evidence would probably not be listened to anywhere.^
(2) Much less, in these days, should evidence be admitted, not of cacothe-
ism, but of mere disbelief in a personal Deity, i. e. atheism, — a belief quite
consistent with the strictest sense of moral obligation to speak the truth.
Some statutes, however, preserve a permission to use such evidence, — a
sop of medisevalism left to satisfy those who would otherwise not have con-
sented to abolish theological qualifications for the oath.* But some Courts
justly treat even this much use of theological heterodoxy as improper.^
§ 936. Race. The racial disqualifications (of the Negro and of the Chi-
nese) that once existed in some States have been abolished (ante, § 516);
and it may be assumed as law that, where no express enactment provides,
nativity in a specific race is in no way to be treated as involving a gen-
eral tendency to avoid the truth. A broader acquaintance with the various
types of human nature in the world is beginning to convince us that the
virtues and the failings are found in all, and with little racial difference.
Any attempt to attribute a rooted lack of veracity to any one branch of
the human family is based on a self-conceited assumption or a narrow
experience :
1902, Ray, J., in U. S. v. Lee Huen, 118 Fed. 442, 463 : " This Court cannot assent
to the proposition that in one of these [deportation] cases a witness for the person sought
2 In 1696, Sir John Freind's Trial, 13 How. 1891, §4822, semble; Ga. Code 1895, § 5268;
St.Tr.31, 43, 58, L.C.J. Holt said that such evi- Ind. Rev. St. 1897, §518; la.; 1877, State v.
dence (in that case against the prosecution's Elliott, 45 la. 486 ; 1881, Searcy w. Miller, 57 id.
witnesses) "hath no weight." But the prior 613, 10 N. W. 912 (under a statute providing
practice had been clear: 1678, Ireland's Trial, 7 that all facts formerly disqualifying may now
How. St. Tr. 79, 100 (L. C. J. Scroggs : "But be used in discredit ; erroneous) ; Me. Kev. St.
if you have a religion that can give a dispensa- c. 82, § 92 ; Mass. Pub. St. c. 169, § 17; 1860,
tion for oaths, sacraments, protestations, and Com. v. Burke, 16 Mass. 33 (holding that G. S.
falsehoods that are in the world, how can you c. 131, § 12, allowing religious belief to be used to
expect we should believe you t ") ; 1679, White- discredit, did not alter the law as to the mode of
bread's Trial, ib. 311, 386 (to be a Roman proof); Minn. Gen. St. § 5658, semble ; N. M.
Catholic went to the witness' credit). Comp. L. § 3016; N. Y. ; 1891, People v. Most,
3 1856, Darby v. Ouseley, 1 H. & N. 6, 10 128 N. Y. 108, 27 N. E. 970 (belief in a Supreme
(where the question excluded concerned the Being) ; 1903, Brink v. Stratton, 176 id. 150,
belief of the witness in certain alleged doctrines 68 N. E. 148 (similar ; two judges dissenting ;
of the Roman Catholic church justifying the good opinion by CuUen, J., diss.); S. C: 1892,
breaking of faith with heretics) ; 1834, Com i^. State v. Turner, 36 S. C. 534, 543, 15 S. E. 602
Buzzell, 6 Pick. 156 (it was argued that as con- (on cross-examination here) ; Tenn. Code 1896,
fession and absolution were parts of the Roman § 5593 ; 1871, Odell v. State, 61 Tenn. 91.
Catholic faith, there was a possibility of false ^ 1887, People v. Copsey, 71 Cal. 548, 550, 12.
swearing in the expectation of absolution ; per Pac. 721 (that he was a person " who entertained
Curiam: "Such a course of argument cannot no religions, belief," excluded) ; 1858, People v.
be permitted. You might as well argue upon Jenness, 5 Mich. 305, 319 (under statute; ex-
the effect of any other particular doctrine, for eluding both questions to the witness and out-
instance, if the witness belongs to a sect which side testimony) ; 1879, Free v. Buckingham, 59
holds that the duration or extent of future pun- N. H. 219, 225 (it is "not customary"); Vt.
ishment will be less than it will be according to Stats. 1894, § 1244.
the tenets of a different sect)." For the propriety of inquiring into religious
* The statutes cited below are quoted in full belief for the purpose of ascertaining the most
ante, § 488, and post, § 1828 : Ariz. Rev. St. binding farm of oath, see post, § 1818.
1887, § 2037, sembte; Colo. (Mills) Annot. St.
1077
? 936 TESTIMONIAL IMPEACHMENT. [Chap. XXX
to be deported is interested merely because he is a Chinese person. . . . There is no
rule of law that justifies the assumption that a Chinese person is more interested in bis
countrymen than is a person of some other nationality in his. A Yankee may testify
for a Yankee, but he is not therefore interested. An Irishman may testify for an Irish-
man, an Englishman for an Englishman, a German for a German ; but such witnesses
are not, in the eye of the law, interested. No discredit can legally attach to the testi-
mony of a person because he gives his evidence in behalf of a party belonging to his
own nationality. A Chinese witness in one of these cases, if engaged in securing the
enti-ance of Chinese persons into the United States, is open to suspicion; and if he is
engaged in aiding the entrance of such a person, and gives evidence in that behalf, he is
interested, and such fact legitimately tends to discredit his testimony. We are all
brothers in the family of Adam, — all brothers in the national family to which by birth
or adoption we belong ; but these ties of race or color do not make us interested wit-
nesses when we testify in court, within the rule that permits interest to be used as a
discrediting circumstance. If it affirmatively appears that a witness has a bias in favor
of persons of his own nationality, in whose behalf he is testifying, or against the other
party to the litigation, or a bias in favor of persons of his own nationality generally, or
against those of another nationality, such fact may be used to discredit his testimony." i
3. Experiential Incapacity.
§ 938. General Principle. For testimony upon some subjects an Experi-
ential Capacity is necessary {ante, § 555), and must be shown prima facie
before the witness may speak. By way of impeachment, then, the lack of
this capacity, in a greater or less degree, is relevant. How it is to be evi-
denced by specific instances is another question {post, § 991). It is enough
here to note that the general quality of such incapacity may be offered to
discredit.! No questions seem to have arisen of the sort already noticed as
to Character.^ It may be assumed in general that the discrediting quaUty
offered must be in kind the same as that required in advance to show com-
petency ; and that incapacity at a former time may be used as the basis
of the argument in the same way that character at a former time may
be used.
4. Emotional Incapacity (Bias, Interest, and Corruption).
§ 940. General Principle. Impartiality of Feeling (Emotional Capacity) is
no longer regarded as an essential preliminary to testimony {ante, § 576),
except in a few instances. But the force of a hostile emotion, as influencing
the probability of truth-teUing, is still recognized as important; and a par-
tiality of mind is therefore always relevant as discrediting the witness and
affecting the weight of his testimony.
But it is practically of rare occurrence that we attempt directly to prove
this partiality of mind; we are usually able to get at it only by inference
.:vi^i\^^^::t.ll^;':^l!l^ apretended^ediealwitnesswasnotaphysician.
t^o be'^disc°ediied^" m2^"u'"^'^"J' "rt^ h"'*' k ' ^'- ^''^ ^^'^^'^'^^^ «o here, a question has
Jauoted s»Dm) kn!n^™ L ^ I' 1 ^"^" ^"'^ '"'"^'^ '""'«'• "'e Opinion rule whether one
(quoted sup^a). Compare the Federal rule re- person may testify directly to another's lack of
quinng corrobc^aUon for a Chinese witness (post, Lperientill CapLftv! 2e auZritiia^ de^t
^ 1844, Washington .. Cole, 6 Ala. 214 (that ^aZ ""'' ^ '''*■ ^"'"P"^ ''^^° §§ "' «'' '"'•
1078
§§ 920-940]
SUNDEIES.
940
from some specific circumstance; for example, we infer partiality from the
circumstance that the witness is a party in the cause, or is a brother of a
party, or has on some occasion expressed hostility to the opponent, or has
received money for his testimony. In such cases we are concerned with an-
other qiiestion, i. e. how to evidence this partiality of mind ; and this falls
properly under other principles (^post, §§ 948-968). Where it is thought
worth while, however, there is no objection to a direct question, " Are you
not anxious to have the defendant convicted ? " ^
As in the case of Character {ante, § 927), a partiality of mind at some
former time may be used as the basis of an argument to the same state at
the time of testifying ; ^ though the ultimate object is to establish partiality
at the time of testifying.^
^ As with Character and Experiential Ca-
pacity, the Opinion rule has here also been
rashly involved to exclude such testimony, the
absurdity of the suggestion being here more
pronounced ; the rulings are collected post,
§ 1963.
The modern emasculation in this country of
the judicial function has raised some questions
entirely novel in the history of the common law.
The principle that the judge is not to charge the
jurij upon matters of fact, as distinguished from
matters of law, has led, among other things, to
doubting whether the judge may tell the jury
that bias or interest affects the weight of testi-
mony. This doubt, however (an instance of
which may be found in Hess v. Lowrey, 122
Ind. 234, and People v. Shattnck, 109 Cal. 673,
42 Pac. 315), has nothing to do with our present
subject ; compare § 968, post.
2 Post, § 950.
' 1892, Consaul v. Sheldon, 35 Nebr. 254, 52
N. W. 1104.
1079
943
BOOK I, PART I, TITLE II.
[Chap. XXXI
Stjb-title II (continuecT) : TESTIMONIAL IMPEACHMENT.
Topic II: EVIDENCING BIAS, INTEREST, AND CORRUPTION (BY
CONDUCT AND CIRCUMSTANCES).
CHAPTER XXXI.
Introductory.
§ 943. General Principle ; No Prohibition
against Extrinsic Testimony.
§ 944. Cross - examination ; Broadness of
Scope.
§ 945. Kinds of Evidence.
§ 946. Same : Demeanor of the Witness, as
evidence.
A. Bias.
§ 948. General Principle ; Particular Cir-
cumstances always admissible.
§ 949. Relationship and other External Facts
as Evidence.
§ 950. Expressions and Conduct as Evi-
dence.
§ 951. Details of a Quarrel on Cross-exami-
nation.
§ 952. Explaining away the Expressions or
Circumstances ; Details on Re-examination.
§ 953. Preliminary Inquiry to Witness.
B. COEHUPTION.
§ 956. General Principle.
§ 957. Willingness to Swear Falsely.
§ 958. Offer to Testify Corruptly.
§ 959. Confession that Testimony was False.
§ 960. Attempt to Suborn another Witness.
§961. Receipt of Money for Testimony;
Payment of Witness' Expenses.
§ 962. Mere Receipt of Offer of a Bribe.
§ 963. Habitual Falsities; and Sundry Cor-
rupt Conduct.
§ 964. Preliminary Inquiry to the Witness.
C Inteeest.
§ 966. General Principle ; Parties and Wit-
nesses in a Civil Case.
§ 967. Accomplices and Co-indictees in a
Criminal Case.
§ 968. Accused in a Criminal Case.
§ 969. Bonds, Rewards, Detective-Employ-
ment, Insurance, etc., as affecting Interest.
Inteoduotoet.
§ 943. General Principle ; No Prohibition against Extrinsic Testimony.
The various qualities available for impeachment having been surveyed, and
their limitations marked out, the next problem (ante, § 876) concerns the
admissible modes of evidencing those qualities. These sources of evidence
will be chiefly either the conduct of the witness or external circumstances.
The evidence will thus consist most commonly of particular acts of behavior
or particular events. Thus the distinction already noted (ante, § 878), be-
tween extracting the impeaching facts on cross-examination and presenting
them by other witnesses, becomes now of vital importance. The first topic
may most properly deal with those qualities for the evidencing of which this
prohibition of extrinsic testimony does not apply, namely, the qualities of
bias, corruption; and interest, — all being merely varieties of the single qual-
ity of emotional partiality (ante, § 940). Cross-examination will here be an
important but not the exclusive mode of presentation. The chief inquiries
will concern the relevancy of the various kinds of CjcSnduct and circumstances,
and the occasional bearing of considerations of auxiliary policy (ante, § 42).
Under Topic III may afterwards be considered the evidencing of moral char-
acter and other qualities, to which the prohibition of proof by extrinsic tes-
1080
§§ 943-969] SCOPE OF CROSS-EXAMINATION. § 944
timony commonly applies. In general, then, there is for the present class of
qualities no such prohibition :
1858, Rice, C. J., in McHugh v. State, 31 Ala. 320 : " In considering the various modes
by which the credit of a witness may be assailed, Courts must observe the distinction be-
tween an attack upon his general credit, and an attack upon his credit in the particular
case. Particular facts cannot be given in evidence to impeach his general [i. e. moral
character] credit only, but may be to affect his particular credit, that is, his credit [due
to bias or interest] in the particular cause. Thus, the general credit of a ■witness for the
prosecution may be unassailable ; he may be hostile to the prisoner, and on cross-exam-
ination may deny that he is so ; in such case, who can doubt the right of the prisoner to
prove the hostility? "
§ 944. Cross-ezfamination ; Broadness of Scope. But even in this first
class of evidence we find the influence of a part of this above principle, — a
species of corollary, which provides that in extracting evidence by cross-
examination the largest possible scope shall be given to evidence attempted
to be procured in that way ; the scope in a given instance being left chiefly
to the discretion of the trial Court. This principle strictly grows out of the
doctrine that extrinsic testimony should be excluded, and is intended some-
what as an offset to that exclusionary rule; it has therefore no essential
application to such evidence as does not come within that exclusionary rule.
Yet it is commonly spoken of as not so restricted, but as applying to all sorts
of discrediting evidence. Throughout all the ensuing sorts of evidence, then,
there is to be understood a general canon that on cross-examination the range
of evidence that may be elicited for any purpose of discrediting is to be very
liberal :
1840, Redfield, J., in Stevens v. Beach, 12 Vt. 587 : " It is no doubt competent for the
party to put almost any question, upon cross-examination, which he may consider im-
portant to test the accuracy or veracity of the Witness."
1842, Huhbard, J., in Perkins v. Adams, 5 Mete. 48 : " A witness may always be sub-
jected to a strict cross-examination as a test of his accuracy, his understanding, his in-
tegrity, his biases, and his means of judging."
1843, Shaw, C. J., in Hathaway v. Crocker, 7 Mete. 266: "In cross-examination, an
adverse party is usually allowed g^reat latitude of inquiry, limited only by the sound dis-
cretion of the Court, with a view to test the memory, the purity of principle, the skill,
accuracy, and judgment of the witness, the consistency of his answers with each other
and with his present testimony, his life and habits, his feelings towards the parties re-
spectively, and the like; to enable the jury to judge of the degree of confidence they may
safely place in his testimony."
1885, Danforth, J., in Langley v. Wadsworth, 99 N. Y. 63, 1 N. E. 106 : « So far as the
cross-examination of a witness relates either to facts in issue or relevant facts, it may be
pursued by counsel as matter of right; but when its object is to ascertain the accuracy or
credibility of a witness, its method and duration are subject to the discretion of the trial
judge, and unless abused, its exercise is not the subject of review." ^
' It is iinnecegsary here to collect all the definite rule ; some of the more definite rules
cases in which this doctrine has been uttered, that are applicable to cross-examination will be
first, because it is an unquestioned trnism, and found post, §§ 981-983 (conduct affecting char-
secondly, because like most commonplaces it is actcr), §§ 992-99+ (testing the memory, etc.),
too indefinite to be of service as a rule, for it §§ 1004, 1022 (collateral contradiction, etc.), and
always yields when it comes in conflict with any §§ 1871,1885 (order of putting in the case);-
1081
§ 944 TESTIMONIAL IMPEACHMENT. [Chap. XXXI
It may be doubted whether in practical effect this canon enlarges the rules
of relevancy. Probably it merely leaves the trial Court to pass upon the
matter of relevancy without revision from above. Moreover, in many sorts
of evidence even this effect is not given, for strict rules of relevancy are re-
quired to be followed. While it must be kept in mind, then, as representing
a broad underlying tendency, it can hardly be trusted as a general guide
and never as overriding any other concrete rule.
But the foregoing doctrine concerns at most the subject and scope of facts
that may be covered. It does not concern the peculiar virtues of cross-
examination as a mode of extraction distinguished from direct examination.
The contrast is between cross-examining a witness already called, and calling
new witnesses, — not between the cross-examination and the direct examina-
tion of the same witness. In the latter aspect, cross-examination is a right,
because of its efficacy in securing more than could have been expected from
a direct examination by a friendly examiner. The peculiar virtues which
thus elevate cross-examination into a right are to be considered under another
head {post, § 1368).
§ 945. Kinds of Evidence. Three different kinds of emotion constituting
untrustworthy Partiality may be broadly distinguished, — Bias, Interest, and
Corruption. Bias, in common acceptance, covers all varieties of hostility or
prejudice against the opponent personally or of favor to the proponent per-
sonally. Interest signiiies the specific inclination which is apt to be produced
by the relation between the witness and the cause at issue in the litigation.
Corruption is here to be understood as the conscious false intent which is
in the following cases two thinss are usually ("to test the truthfulness, judgment, and cred-
emphasized, first, that this broad scope of the ibility"); 1903, Jennings w. Rooney, — id.— ,
examination is especially allowable in issues in- 67 N. E. 665; Mich.: 1899, Bennett v. Eddy,
Tolving /raurf, and secondly, that its limits are 120 Mich. 300, 79 N. W. 481; Nebr.: 1894,
left to the determination of the trial Court: Ala.: Omaha Nat'l Bank v. Thompson, 39 Nebr. 269,
1857, Stoudenmeier v. Wilson, 29 Ala. 564; 27.5, 283, 57 N. W. 997 ; 1897, Davis «. State, 51
1859, Seale v. Chambliss, 35 id. 21 ; 1895, Long id. 301, 70 N. W. 984 ; 1849, Seavv v. Dearborn
V. Booe, 106 id. 570, 17 So. 716 ; 1896, Rhodes 19 N. H. 355 (" a great deal of latitude is al-
Furn. Co. v. Weedon, 108 id. 252, 19 So. 319; lowed for the purpose of testing the memory,
1897, Nelms v. Steiner, 113 id. 562, 22 So. 435 ; the capacity, or the honesty of the person under
1902, Southern R. Co. o. Brantley, 132 id. 655, examination") ; 1879, Free v. Buckingham, 59
32 So. 300 ; Cal. : 1895, SandeU v. Sherman, 107 id. 219, 226 ; N. J. : 1872, Jones v. Ins Co. 36
Cal. 391,40Pac. 493; 1899, People «. Westlake, N. J. L. 29, 42; N. M. : 1896, Borrego v. Ter-
124 id. 452, 57 Pac. 465 ; Conn. : 1846, Steene ritory, 8 N. M. 446, 46 Pac. 349 ; 1900, Orange
V. Aylesworth, 18 Conn. 244, 254; 1868, Kelsey Co. E. E. v. Hubbell, 10 id 47 61 Pac 1"? ■
V. Ins. Co., 35 id. 225, 233 ; 1889, State v. Duffy, Oh. : 1877, Martin v. Elden, 32 Oh. St. 282, 287 ;
57 id. 528, 18 Atl. 791 ; D. C. : 1898, Davis v. Or. : 1895, Maxwell v. BoUes, 28 Or. 1, 41 Pac.
Coblens, 12 D. C. App. 51, 53 ; 1899, Horton v. 661 ; Pa.: 1893, Myerstowu Bunk „. Roessler,
U. S., 15 id. 310, 324 ; Fla. : 1903, Volusia Co. 186 Pa. 431, 40 Atl. 963 ; U. S. : 1861, Johnston
Bank V. Bigelow, — Fla. — , 33 So. 704; v. Jones, 1 Black 216, 226; 1873, Rea v. Mis-
Baw.: 1900, Merricourt v. Norwalk P. I. Co., souri, 17 Wall. 542; 1876, Storm o. V. S., 94
w ?'''^- ^.}\ ^-^' { ••" '^^^' '^"'^"'^ I™"' U. S. 84 (further declining to interfere with
Works « Weber, 129 111. 535, 21 N. E. 1078; that discretion simplv becaule the answer might
Ind.: 1891, Pennsylvania Co. v. Newmeyer, 129 have furnished other witnesses who could have
Ind 405 28 N. E. 860; 1895, McDonald v. disproved the opponent's case) ; 1892, Eamesw.
McDonald, 142 id. 55, 41 N. E. 342; Kan.
1902, Bassett c. Glass, 65 Kan. 500, 70 Pac. 336
La. : 1852, State v. Benjamin, 7 La. An. 47, 49
1896, State v. Southern, 48 id. 628, 19 So. 668
Jl^e.: 1874, Stur^is!). Robbing, 62 Me. 289, 292, „. ,,„, ^„ ,„ ,, ^, ^.^^ ,,„- ,,
Mass., 1873, MiUer v. Smith, 112 Mass. 470 State u.Bean, 74 Vt. Ill, 52 Atl 269
1082
Kaiser, 142 id. 488, 12 Sup. 302 ; 1894, Blitz v.
U. S., 153 id. 308, 312 ; 1899, Davis v. Coblens,
174 id. 719, 19 Sup. 832 ; Utah : 1895, People v.
Thiede, 11 Utah 241, 39 Pac. 837 ; 1899, Gaboon
V. West, 20 id. 73, 57 Pac. 715; Vt.. 1902,
§§ 943-969] DEMEANOR ON THE STAND ; BIAS. § 948
inferrible from giving or taking a bribe or from expressions of a general
unscrupulousness for the case in hand.
The kinds of evidence available are two, (a) the circumstances of the wit-
ness situation, making it a priori probable that he has some partiality of
mind for one party's cause ; (b) the conduct of the witness himself, indicating
the presence of such partiality, the inference here being from the expression
of the feeling to the feeling itself. These two sorts correspond to two of the
three generic sorts of all circumstantial evidence (ante, § 43), — Prospectant
and Eetrospectant.
§ 946. Same : Demeanor of the Witness, as evidence. The conduct of the
witness is formally offered in evidence, when it has occurred outside of the
court-room. But it is no less admissible when exhibited in the court-room
and on the stand, even though no formal offer of it is then required. The
demeanor of the witness on the stand may always be considered by the jury
in their estimation of his credibility.^ So important has this form of evidence
been deemed in our system of procedure that by a fixed rule of Confrontation
(post, § 1395) the witness is required to be present before the tribunal while
delivering his testimony. The main feature of contrast between the civil-law
and the common-law systems of taking evidence was the difference between
viva voce testimony and written depositions. Only when the former cannot
be procured is the latter allowed to be employed. The witness' demeanor,
then, without any definite rules as to its significance, is always assumed to be
in evidence.^
A. Bias.
§ 948. General Principle ; Particular Circumstances always admissible.
The doctrine of excluding facts offered by extrinsic testimony (post, § 979)
has never been applied to this subject.^ No explanation for this seems ever
to have been clearly expressed. The reason, however, is probably this, that
particular conduct and circumstances form the only means practically avail-
able for effectively demonstrating the existence of bias. Another witness'
individual knowledge of the witness' bias is seldom asked for,^ and would not
be trusted without a specification of the grounds for the belief ; and reputa-
tion is out of the question ; so that the conduct of the witness and the cir-
cumstances of his situation become practically the sole available material.
This class of facts, then, may be offered either by extrinsic testimony or by
cross-examination, without discrimination agaiust the former.*
1 1 901 , Blair v. State, 69 Ark. 5.58, 64 S. W. the value of an opportunity to observe the wit-
948 ; 1860, Evans v. Lipscomb, 31 Ga 107; 1897, ness' demeanor.
Georgia H. I. Co. v. Campbell, 102 id. 106,29 ^ This has seldom been even questioned:
S. E. 148 ("personal appearance " thought not 1858, McHugh v. State, 31 Ala. 320 (quoted,
to be properly considered) ; Ida. Rev. St. 1887, ante, § 943) ; 1833, Rixey v. Bayse, 4 Leigh 331.
§5956; 1892, Purdy !). People, 140 111. 46,50, « Whether it is admissible under the Opinion
29 N. E. 700 ; Siebert v. People, 143 id. 571, 593, rule is noticed post, § 1964. Compare also § 661,
32 N. E. 431 ; 1868, Callanan v. Shaw, 24 la. ante.
447; 1885, Jennings v. Machine Co., 138 Mass. ' It hag been said that where the witness iu
594, 598 ; 1899, Kirchner v. Collins, 152 Mo. general admits the existence of bias, no further
394, 53 S. W. 1081. inquiry into circumstances will be allowed, either
* See post, § 1395, for passages expounding on cross-examination or otherwise ; the notion
VOL. II. — 6 1083
§ 949
TESTIMONIAL IMPEACHMENT.
[Chap. XXXI
§ 949. Relationship and other External Facts as Evidence of Bias. The
range of external circumstances (ante, § 945) from which probable bias
may be inferred is infinite. Too much refinement in analyzing their proba-
ble effect is out of place. Accurate concrete rules are almost impossible to
formulate, and where possible are usually undesirable. In general, these
circumstances should have some clearly apparent force, as tested by experi-
ence of human nature, or, as it is usually put, they should not be too
remote.'
Among the commoner sorts of circumstances are all those involving some
intimate family relationship to one of the parties by blood or marriage or
illicit iatercourse,^ or some such relationship to a person, other than a party,
who is involved on one or the other side of the litigation,* or is otherwise
being that it is a waste of time to allow a further
attempt to prove a thing already conceded :
1879, State v. Glynn, 51 Vt. 580 (" the witness
in this case admitted that she had unfriendly
feelings against the prisoner, and such inquiry
is so collateral to the issue that a court will never
permit detail, but only the general inquiry
whether the witness is friendly or otherwise " ;
here the question asked was, " Have you ever
told S. that you would get the old man [the
defendant] into State prison if you could?").
But this view is unsound ; because a general
admission of the existence of bias can never be
so vivid and forceful as the inference from his
situation or his utterances. The doctrine has no
support elsewhere ; 1869, Blake v. Damon, 103
Mass. 207, 209 (repudiating the argument that
" the witness should first be asked if he has bias,
and to what extent ; if he concedes bias, then it
is wholly collateral to inquire into the circum-
stances showing it ").
i 1869, State v. Dee, 14 Minn. .35; 1882,
Langhorne v. Com., 76 Va. 1016 (limiting this
mode of showing bias to circumstances strongly
significant). Whether, without resorting to this
evidence, the witness may be asked directly
whether he is biassed, has been already con-
sidered ante, § 940. .
* In the following rulings the circumstance
was admitted, except where otherwise noted:
Eng.: 1836, Thomas v. David, 7 C. & P. 350
(mistress of the plaintiff); Ala.: 1900, Martin
V. State, 125 Ala. 64, 28 So. 92; Cal.: 1868,
Lyon V. Hancock, 35 Cal. 377 (wife) ; Ga. : Code
1895, § 5289 (feelings and relationship to par-
ties, admissible) ; 1886, Simpson v. State, 78
Ga. 97 (relationship) ; 1901, Cochran v. State,
113 id. 726, 39 S. K. 333 (brothers, and others) ;
Ind.: 1896, Smith u. State, 143 Ind. 685, 42
N. E. 913 (assault with intent to kill; the pros-
ecuting witness' sister having testified for the
-defendant, her relations with him were admit-
ted to show bias); 1900, Keesier w. State, 154
id. 242, 56 N. E. 232 (" near relatives ") ; la. :
in the following three cases a wife's testimony
was held not to be discredited by her relation-
ship: 1859, State u. Rankin, 8 id. 355 (Wright,
C. J., diss.); 1865, State v. Collins, 20 id. 85,
92; 1876, State «. Bernard, 45 id. 234; contra:
1859, State w. Nash, 10 id. 81, 89; Ki/.: 1895,
1084
Preston v. Dills, — Ky. — , 32 S. W. 945 (re-
lationship should not "discredit" (j. e. reject?)
the testimony) ; 1896, Holly v. Com., — id. — ,
36 S. W. 532 (that a female witness for the de-
fendant had lived with him without being mar-
ried) ; 1898, Franklin v. Com., 105 id. 237, 48
S. W. 986 (killing of a woman said to have
been seduced ; that a witness for the prosecu-
tion was the real seducer, admissible) ; La. :
1881, State v. Willingham, 33 La. An. 537 (re-
lationship) ; 1896, State v. Johnson, 48 id. 437,
19 So. 476 (defendant's mistress) ; Mo. : 1901,
State V. Fisher, 162 Mo. 169, 62 S. W. 690 (re- ]
lationship); N. C: 1846, State u. Ellington,'
7 Ired. 66 (parental and fraternal relations) ;
1847, State v. Nash, 8 id. 36 (same) ; 1858,
State V. Nat, 6 Jones L. 117 (fellow-slaves);
1897, State v. Apple, 121 N. C. 584, 28, S. E.
469 (father and mother) ; 1897, State v. Lee, ib.
544, 28 S. E. 552 (defendant's wife) ; S. D. :
1896, State v. Smith, 8 S. D. 547, 67 N. W. 619
(relationship) ; U. S. .- 1888, U. S. v. Davis, 33
Fed. 865 (near relatives); Wis.: 1895, Porath
V. State, 90 Wis. 527, 63 S. W. 1061 (illicit rela-
tions; excluded, wrongly). It should be under-
stood that relationship is merely a circumstance
which may be invoked by counsel as discrediting
the witness ; but it does not follow that the jury
must so use it. The confusion of the first with
the second result serves in part to explain the
conflict of rulings.
^ Here the circumstance has usually been
excluded ; but the rulings are too finical ; a
complete exposure of the relations is better;
1899, Lodge v. State, 122 Ala. 97, 26 So. 210
(that the father of a child-witness was hostile to
the opponent, admitted) ; 1903, Stall v. State,
— id. — , 34 So. 680 (that the witness was the
husband of the deceased's washerwoman, ex-
cluded) ; 1875, People v. Parton, 49 Cal. 637
(mere marital relationship of witnesses to per-
son claimed to have conspired to prosecute
falsely the defendant, excluded) ; 1859, State u.
Bilansky, 3 Minn. 246, 249, 260 (criminal inti-
macy of a female witness for the prosecution
with a man with whom the female defendant
was also intimate, rejected as too remote to show
probable jealousy and bias) ; 1859, State v.
Montgomery, 28 Mo. 594 (bias to third persons,
excluded, " no matter in what relation, however
§§ 943-969]
BIAS, FROM CIRCUMSTANCES.
949
prejudiced for or against one of the parties. The relation of employment,
present or past, by one of the parties, is also usually relevant.*
The pendency of civil litigation between the witness and the opponent is
usually relevant, not only as a circumstance tending to create feeling,^ but also
as involving conduct expressive of feeling {post, § 950) ; and while the mere
fact of litigation upon a disconnected matter may not necessarily show bias,
still it is useless to attempt to distinguish and refine for the purpose of ex-
clusion.^ That the witness is or has been under indictment may have several
bearings ; (1) if the indictment, present or past, was had by the opponent's
procurement or for an injury to him, it is relevant as having tended to ex-
cite in the witness a hostile feeling to him ; '^ (2) if the indictment was pro-
else they may stand to the party " ; here bias
against the defendant's husband) ; 1898, State
V. Welch, 33 Or. 33, 54 Pac. 213 (whether he
had any trouble with the defendant's brother or
mother, not proper) ; 1901, State v. Ogden, 39
id. 195, 65 Pac. 449 (witness' sons' quarrel with
defendant, excluded) ; 1880, State v. Conkle, 16
W. Va. 736, 742, 757, 764 (attempt to kill ; a
witness for the State lived in the house with the
defendant and his wife ; a question as to his in-
tercourse with the latter was excluded, in an
obscure opinion).
* It is obvious that where the employment
is a present one, the effect is to suggest an inter-
est (under § 969, post) rather than a personal
bias ; but the rulings can most conveniently be
collected here in one place ; 1 895, Long v. Booe,
106 Ala. 570, 17 So. 716 (former employment of
witness' father by the party, admitted) ; 1897,
Postal Tel. Cable Co. v. Hnlsey, 115 id. 193, 22
So. 854 (whether a witness' employment de-
pended on the issue of his employer's case, and
why the witness was interested, allowed) ; 1899,
Preferred Ace. Ins. Co. v. Gray, 123 id. 482, 26
So. 517 (that the physician-witness was employed
by the corporation insured by the defendant,
allowed) ; 1900, Louisville & N. R. Co. v. Teg-
nor, 125 id. 593, 28 So. 510 (that a witness was
a large shipper over defendant's road, allowed ;
Tyson, J., diss.); 1901, Alabama G. S. R. Co.
V. Johnston, 128 id. 283, 29 So. 771 (that the
witness had free transportation on defendant's
road, admissible) ; 1898, Donley v. Dougherty,
174111. 582,51 N. E. 714 (employment by a party,
admissible) ; 1903, Chicago C. R. Co. i'. Carroll,
— id. — , 68 N. E. 1087 (similar) ; 1900, Chi-
cago & Erie R. Co. v. Thomas, — Ind. — , 55
N. E. 86 (whether the witness believed that he
would be discharged if he testified to his own
negligence, allowed); 1875, Wallace v. R. Co.,
119 .Mass. 93 (that a witness for defendant cor-
poration was also employed by another corpora-
tion among whose stockholders were olBcers of
the former, excluded in discretion) ; 1900, Kop-
lant'. Gaslight Co., 177 id. 15, 58 N. E. 183 ("the
fact that one has been discharged ' for cause '
from the service of another against whom he
testifies would not ordinarily be an independent
ground of impeachment," but here allowed in
discretion) ; 1895, Wastl v. R. Co., 17 Mont.
213, 42 Pac. 772 (that a witness against a rail-
road company is an employee of one ; an obscure
1085
and illogical treatment of the subject, appar-
ently forbidding the consideration of such a
fact) ; 1903, Koenig v. Union D. R. Co., 173 Mo.^
698, 73 S. W. 637 (that he was an attorney tesy
tifying for his client, allowed) ; 1900, Haver v.
It. Co., 64 N. J. L. 312, 45 Atl. 593 (whether the
defendant's employee charged as culpable was
not afraid of losing his position if the verdict
was against the defendant, allowed) ; 1902,
Hedlun v. Holy Terror Min. Co., — 8. D. — ,
92 N. W. 31 (that the witness was agent of the
company insuring the defendant, admitted) ;
1899, Missouri K. & T. R. Co. v. St. Clair, 21
Tex. Civ. App. 345, 51 S. W. 666 (that a wit-
ness was the opponent's dischiirged employee,
excluded) ; 1898, Tennessee C. I. & R. Co, v.
Haley, 29 C. C. A. 328, 85 Fed. 534 (wages of
employee-witness, as affecting credit, admis-
sible) ; 1897, Klatt v. Lumber Co., 97 Wis. 641,
73 N. W. 563 (employment by a party, admis-
sible).
For the admissibility of the fact of accident
insurance and of emploi/ment as a detective, as af-
fecting interest, see post, § 969.
1 897, Louisville & N. R. Co. v. Hill, 1 1 5 Ala.
334, 22 So. 169 (the pendency of a suit for a
similar claim, admitted).
» 1888, Hitchcock v. Moore, 70 Mich. 115,
37 N. W. 914 (that the plaintiff in an action
for slander against his wife's father had
been compelled in a divorce suit to pay out
money to his wife; admitted); 1881, Olive v.
State, 11 Nebr. 1, 23, 7 N. W. 444 (that he was
an attorney for the prosecution, that he was in-
terested in a suit against the defendant, admit-
ted on cross-examination) ; 1897, Lane v. Harlan
Co., 51 id. 641, 71 N. W. 302 (damages for the
taking of land by a county ; a county-snpervisor
who had helped fix the line and estimate the
damages ; these facts considered as affecting
bias) ; 1837, Pierce v. Gilson, 9 Vt. 222 (" that a
lawsuit has existed, calculated to excite personal
dislike," admitted) ; 1882, Langhorne v. Com.,
76 Va. 1024 (excluding the fact that a bill
charging the State's witness with infamous con-
duct had been filed by the accused, because
knowledge of the charge had not come to the
witness before testifying ; and also holding that
the mere fact of litigation on a disconnected
matter is not admissible). Compare the doc-
trine of § 951, post.
' 1903, Purdee v. State, — Ga. — , 45 S. E.
§ 949
TESTIMONIAL IMPEACHMENT.
[Chap. XXXI
cured by the opponent against another party to the cause, it is relevant as an
expression of hostile feeling, usable against the opponent as a witness {post,
§§ 950, 951) ; (3) if it is now pending over a witness for the prosecution for
the accused in a criminal case, it is relevant to show the witness' interest in
testifying favorably for that side {post, § 967).
Beyond these common varieties of circumstances, no generalization can be
attempted. New circumstances will constantly be presented, as suggestive
of personal prejudice;^ and the decision should be left entirely in the hands
of the trial judge.
§ 950. Expressions and Conduct as Evidence of Bias. The line between
external facts in a witness' situation and expressions or conduct {ante, § 945)
is sometimes hard to draw ; but for the purposes of relevancy it is of little
more than theoretical consequence, the relevancy being usually in such cases
clear enough. The argument in the present sort of evidence is from conduct
or language to the feelings inspiring it ; ^ the only question is whether from
the conduct or language a palpable and more or less fixed hostility (to one
party) or sympathy (for the other) is inferrible.^ Such questions should be
left largely to the discretion of the trial Court.'' The variety of the evi-
dence is infinite. Among the commonest sorts are the witness' expressions
of a desire to have the opponent defeated in the present proceeding,* and of
606 (indictments for offences by the witness
against tlie defendant, admitted) ; 1869, R. v.
Brown, 3 Haw. 114, 116 (defendant's testimony
before tlie magistrate, charging B., an accom-
plice, admitted, to show B.'s motive and credi-
bility iu incriminating the defendant by his
testimony). Contra: 1875, Tilton v. Beecher,
Abbott's ilep. I, .^j17 (that the principal witness
for the plaintiff, Mr. Moulton, had been indicted
for libel on Mr. Beecher's complaint, excluded;
Mr. Evarts, for defendant : " Does your Honor
say that to show that the party against whom
he is testifying here has pur.sued him is not evi-
dence that he does not stand impartial 1 " ;
Judge Neilson: "It is very clear that if A
claims an immense estate against B, and B can
pursue the principal witness and indict him in
many indictments, that he don't ruin the witness
whose testimony may be brought in support of
the case against him ").
' 1892, Fox V. Lead Works, 92 Mich. 249, 52
N. W. 623 (that a person was a total abstainer,
who testified to the plaintiff's discharge for
drunkenness, excluded) ; 1877, Gutterson v.
Morse, 58 N. II. 165 (taking part as a grantee
from the defendant in a conveyance fraudulently
made to defeat the collection of the claim in suit,
admitted); 1396, State v. Mace, 118 N. C. 1244,
24 S. E. 798 (murder; that the witness for the
prosecution had " been drunk with tlie deceased
many times," excluded) ; 1895, Fenstcrmaker v.
Pub. Co., 12 Utah 439, 43 Pac. 1 1 2 (phintifE had
been charged, with others of his family, with
cruelty to a child; questions to his wife as to
her cruelty to others ot the children were held
inadmissible to show bias).
^ A direct assertion, " I am biassed," or " I
am ready to lie against him," is seldom made ;
1086
in such an instance we are of course strictly not
dealing with a circumstantial inference {ante,
§ 394), but with a hearsay assertion, admis.sible
under the Exception for Declarations of a Men-
tal Condition (post, § 1730). But in practice
no such distinction is drawn, and all" is treated
as circumstantial evidence. For tlie admissibil-
ity of such a general answer on the stand, see
ante, § 940.
^ In New York the principle is phrased in
apparently a stricter form; the evidence must
there be " direct and positive," — whatever that
means: 1879, Gale v. R. Co., 76 N. Y. 595;
1882, Schultz V. R. Co., 89 id. 248.
' This statement, when made by the Courts,
is usually said of extraction on cross-examina-
tion, and is thus merely an instance of the
general principle already spoken of (ante,
§ 944); but there is no reason for any limi-
tation of the doctrine to cross-examination :
1861, Floyd v. Wallace, 31 Ga. 690, 692; 1857,
Mayhew v. Tavlor, 8 Grav 172; 1892, Consaul
V. Sheldon, 35 "Nebr. 2.54, 52 N. W. 1104; 1892,
People V. Brooks, 131 N. Y. 326, 30 N E. 189 ;
1893, Garnsey v. Rhodes, 138 id. 467, 34 N. E.
199.
* 1679, Lewis' Trial, 7 How. St. Tr. 249,
254 (Defendant: "Dorothy James' . . . evi-
dence is grounded upon plain malice"; Wit^
ness : " Dorothy James said to several persons
. . . that she would wash her hands in Mr.
Lewis' blood, and that she would have his head
to make pottage of as of a sheep's head ") ;
1681, Cidledge's Trial, 8 id. 549, 640 (Gates tes-
tifies that Smith, the informer, a chief witness;
had said of the defendant : " God damn that
Colledge, I will have his blood,'' and on Gates
reproving him that " these wordis do not become
§§ 943-969] BIAS, FROM CONDUCT AND LANGUAGE.
950
conduct indicating a partisan feeling either in the present or in other legal
proceedings.^ No generalization of the different sorts of evidence is of any
utility ; there is merely a greater or less degree of significance according to
the circumstances and the personality of the witness.^
a minister of the Gospel," Smith replied, " God
damn the Gospel"); 1752, Blandy's Trial, 18
id. 1164 (the defendant was charged with
poisoning her father; her female servant, who
had been discharged, had been the chief
witness against her ; testimony as to the ser-
vant's bias : " I have heard her curse Miss
Blandy, and damn her for a bitch, and said she
would not stay. Since this affair happened I
heard her say, ' Damn her for a black bitch, I
shall be glad to see her go up the ladder and
swing'"); 1888, R. v. Sliaw, 16 Cox Cr. 503
(a statement two years before, after a quar-
rel : " It is in my power to do him a good one,
and when 1 do it, it will be a good one ") ; 1894,
People V. Anderson, 105 Cal. 32, 38 Pao. 513
(that she would hang the defendant if her evi-
dence would do so) ; 1S89, State «. McFarlain,
41 La. An. 687, 6 So. 728 (that the witness had
proposed, just after the shooting, to lynch the
accused) ; 1892, Consaul v. Sheldon, 35 Nebr.
253, 52 N. W. 1104 (" There goes a man I will
do up, by God"); 1853, Drew v. Wood, 26
N. H. 363 (" If the D. family come over that
hill, they shall not go home alive"); 1896,
State V. Ellsworth, 30 Or. 145, 47 Pac. 199
(that the defendant ought to be hung).
The following rulings admitted the evi-
dence, except where otherwise noted: 1887,
Burger v. State, 83 Ala. 38 (concealing knowl-
edge from an officer, to show bias for the ac-
cused; 1897, Scott V. State, 113 id. 64, 21 So.
425 (keeping a witness awav) ; 1885, People v.
Lee Ah Chuck, 66 Cal. 667, 6 Pac. 859 (that the
prosecuting witness had already caused the de-
fendant's arrest for the same matter on another
charge); 1899, People a. Bird, 124 id. 32, 56
Pac. 639 (trying to persuade defendant's bail-
bondsman to withdraw) ; 1894, Jacksonville T.
& K. W. R. Co. V. Lockwood, 33 Fla. 573, 578,
15 So. 327 (whether he has not testified against
the same opponent in a dozen suits in fifteen
months, excluded) ; 1881, Johnson v. Wiley, 74
Ind. 238 (the witness testified she had been
threatened with suit on a note by heirs unless
she testified against the will); 1884, Stone v.
HufBne, 97 id. 346, semble (in an action to re-
quire a bond to keep the peace, that the relator
had instituted a prosecution for attempt to pro-
voke an assault) ; 1859, Com. v. Byron, 14 Gray
31 (activity in procuring an indictment, semhle,
admissible); 1860, Crippen v. People, 8 Mich.
128 (that the witness had with others arranged
to procure the indictment as a speedy way of
attaining the end for which they had brought
civil suits); 1848, Lohman v. People, 1 N. Y.
386 (taking part in instigating a prosecution) ;
1868, Nation i\ People, 6 Park. Cr. C. 259 (dec-
laration that the witness would witlihold his
evidence if the defendant would restore the
money lost ; excluded); 1865, Gaines «. Com.,
50 Pa. 328 (a witness for defendant, asking what
could be proved against defendant) ; 1 896,
1087
Philadelphia v. Reeder, 173 id. 281, 34 Atl. 17
(that the defendant's witness had charged cor-
rupt conduct against one concerned with the
plaintiff in the public work about which the
suit WHS brought); 1900, Wadley v. Com., 98
Va. 803, 35 S. E 45? (whether he worked for
an indictment of the defendant in order to com-
pel the payment of a debt by defendant).
^ The following rulings admitted the evi-
dence, except where otherwise noted: 1899,
Magness v. State, 67 Ark. 594, 50 S. W. 554, 59
S. W. 529 (expressions of hatred to Africans,
the defendant being a negro); 1886, Hartriian
r. Rogers, 69 Cal. 646, 11 t'ac. 581 (sundry
conduct); 1891, People v. Thomson, 92 id. 509,
28 Pac. 589 (that the witness on he.nring of the
shooting went out to kill the defendant) ; 1896,
Lange v. Schoettler, 115 id. 388, 47 Pac. 139
(threat to kill the opponent) ; 1830, Daggett v.
Tallman, 8 Conn. 171 (refusing to leave the
State to give a deposition for one party, but
doing it for the other) ; 1903, Fields v. State,
— Fla. —, 35 So. 185 (quarrels); 1888, Gard-
ner V. State, 81 Ga. 144, 147, 7 S. E. 144 (adul-
tery ; letter showing that defendant's witness,
with whom the adultery was charged, had
conspired with defendant to blackmail a third
person on a charge of criminal intercourse, ex-
cluded) ; 1897, Daniel v. State, 103 id. 202,
29 S. E. 767 (that he was "very intimate
and friendly with the deceased and was his
'partner'"); 1900, Whitney v. State, 154 Ind.
573, 57 N. E. 398 (stoning the house of de-
fendant's brother, where defendant was stay-
ing, held not evidence of bias); 1842, Perkins
V. Adams, 5 Mete. 44 (defendant, a town
clerk, was sued for not recording a mortgage ;
the mortgagor testified that the defendant
had lost it ; a letter from the mortgagor to
a creditor threatening him with trouble if he
sold on execution was admitted) ; 1852, Long
V. Lamkin, 9 Cush. 365 (whether a witness had
had a quarrel with the witness whom his testi-
mony was discrediting^ ; 1857, Starks v. Sikes,
8 Gray 609, 612 (hostility in another tran.«ac-
tion, excluded) ; 1860, Chapman v. Coffin, 14
id. 454 (a statement that the witness, having
testified for the defendant, would if called again
testify for the plaintiff) ; 1863, O'Neill v. Lowell,
6 All. 110 (declaration that the plaintiff " ouglit
to get a good pile of money out of the [defend-
ant] city") ; 1867, Day v. Stickney, 14 id. 257
(" 1 mean to get tlie money on this bond of old
F., so as to get back the rent 1 paid him for the
M. House"); 1868, Clement v. Kimball, 98
Mass. 537 (reputation for unchastity of a man
or woman associating with a woman or man,
admissible, if known to the latter, to show the
latter's dLsposition towards the former ; because
it involves in effect conduct significant of dis-
position or feeling) ; 1869, Blake v. Damon, 103
id. 209 (sundry conduct) ; 1873, Com. v. Kelley,
112 id. 452 (that a constable testifying to liquor
§ 951 TESTIMOISriAL IMPEACHMENT. [Chap. XXXI
§ 951. DetaUs of a Quarrel on Cross-examination. It is obvious that, in
ascertaining the state of feeling from the fact of a quarrel or other circum-
stances, the mere fact alone has little significance ; without a knowledge of
the details, we cannot well know the extent of the ill-feeling and the allow-
ance to be made against the testimony. This necessity for ascertaining
details is recognized by some courts without limitation :
1851, Perley, J., in Titus v. Asl, 24 N. H. 323, 331 (a quarrel between the plaintiff's
witnesses and defendant having been shown, the Court admitted details as to the throw-
ing of stones, etc., during the quarrel) : " The quarrel in such case is not the substantial
fact; it is no more than a circumstance tending to show prejudice and ill-will in the
witness. . . . The degree of violence in the quarrel is manifestly material to the point
■ in question. Was it a alight and accidental difference on some trifling subject, such as
would be likely to leave behind no trace of ill-will or prejudice? Or a serious and in-
veterate feud, such as would perpetuate a grudge in the mind of the witness against the
party?" 1
But in two ways inconvenience may ensue : (1) the detailed inquiries, the
denials, and the explanations, are liable to lead to multifariousness and a
confusion of issues; (2) the detailed facts of the dispute may involve a
prejudice to the character of the witness, or of his opponent, which it would
be desirable to keep out of the case. From this point of view, some line of
limitation must be drawn, and an effort made to avoid these two drawbacks :
1869, Steele, J., in Ellsworth v. Potter, 41 Vt. 689 (the plaintiff testified that the ill-
feeling between herself and the witness was such that she had turned the witness out of
her house) : " The plaintiff was at liberty . . . under the direction of the Court to state
enough to indicate the extent or degree of the difficulty and consequent ill-feeling. . . .
This testimony was not intended or calculated to show which party was in fault, but only
the degree of estrangement between them. It is impracticable by any general rule to fix
a precise limit which should govern the admission of such evidence, and necessarily it
must be left to a considerable extent to the discretion of the nisiprius Court."
Accordingly, it is commonly held that the details of the quarrel or other
conduct may be excluded, in the trial Court's discretion.^
found had made oath in the search-warrant that by the defendant ; excluded) ; 1884, Kent v.
he believed the defendant had large quantities State, 42 Oh. 428, 429 (sundry conduct) ; 1903,
there; excluded in discretion) ; 1878, Com. v. State v. McCann, — Or. — , 72 Pac. 137 (in-
Gallagher, 126 id. 55 (offering a third person jured person's expressions, at the time of injury,
money to go bail for the defendant) ; 1887, Cora. excluded on the facts) ; 1837, Pierce v. Gilson,
V. Trider, 143 id. 180, 9 N. E. 510 (that the 9 Vt. 222 (" that a violent altercation has taken
husband, testifying against his wife charged place, arising to personal violence"),
with adultery, had offered a servant money to ^ Accord: 1872, Durham v. State, 45 Ga.
watch the wife, and had habitually accused the 516 (details admissible).
,wife without foundation of improper conduct; ^ ]8g4^ Jones v. State, 76 Ala. 15 (the fact
. exchided) ; 1871, Strang v. People, 24 Mich. 8 and the gravity of the quarrel admissible, but
(connivance at the defendant's alleged conduct, not its merits or its details) ; 1888, People v.
admitted); 1879, People v. Gordon, 40 id. 716 Goldeuijon, 76 Cal. 349 (details may be excluded);
(burglary; questions to the police, whether the 1878, Patman v. State, 61 Ga. 379 (excluded,
arrest was not by connivance of a confederate, the witness having admitted ill-feeling); 1899,
allowed); 1875, State v. Breeden, 58 Mo. 5081 Boldon i;. Thompson, 60 Kan. 856, 56 Pac. 131
(in general); 1896, State i). Punshon, 133 id. 44, 1 (details of lawsuit with opponent, excluded);
.34 S. VV. 25 (defacement of the opponent's pic- 1871, Com. v. Jennings, 107 Mass. 488 (the trial
tures; excluded, indiscretion); 1847, Starks u. Court has discretion); 1872, Morrissey i'. Ing-
People, 5 Den. 106 (expression of a plan to kill ham, HI id. 65 (same) ; 1879, Com. v. Allen,
defendant) ; 1879, Gale v. B. Co., 76 N. Y. 595 128 id. 48, 51 (same) ; 1903, Brink i;. Strattou,
(that the witness had been refused employment 176 N. Y. 150, 68 N. E. 148 (the discretion of
1088
§§943-969] BIAS; DETAILS OF A QUAEREL. §952
§ 952. Same ; Ezplaining a-way the Expressions or Circumstances ; Details
on Re-examination. On the general principle of explaining away circum-
stantial evidence {ante, § 34), any circumstance of conduct or expression, or
of the external situation, of the witness may be explained away as due to
some other cause than the emotion desired to be shown by it, or as not
indicating a deep-seated hostility:
1746, Chadwick's Trial, 18 How. St. Tr. 362; Prisoner's Counsel (to the chief prose-
cuting witness): "Had not yoa and the prisoner a quarrel at Carlisle V" Witness:
" That I confess, and I will tell you what it was about ; it was about a very foolish affair.
Provisions being a little scarce at Carlisle [where both were in the Pretender's army], I
had some sausages, and the prisoner would have them from me, and I not caring to part
from them caused a quarrel, and we fought together. ... I would not swear any man's
life away for a sausage."
1871, Woodruff, J., in U. S.y. 18 Barrels, etc., 8 Blatohf. 478: "When cross-examining
lounsel see fit to call out from the witness collateral facts which tend to create distrust of
(lis integrity, fidelity, or truth, it is entirely competent for the adverse party to ask of the
witness an explanation which may show that the facts thus elicited were in truth wholly
consistent with his integrity, fidelity, and truth, although they thereby prove circumstances
foreign to the principal issue, and which, but for such previous cross-examination, they
would not be permitted to prove." ^
But there are limitations to the use of this evidence : (1) In the first place,
the general principle {post, § 2113) that allows the whole of a conversation
to be shown in order to explain the true sense of the fragment first offered
must not be allowed to introduce purely irrelevant matter ; the object is to
explain, and no more should be listened to than is strictly necessary for that
purpose :
1820, Ahbolt, C. J., in Ihe Queen's Case, 2 B. & B. 294 (a witness for the plaintiff on
cross-examination stated that he had mentioned that he was to be a witness against the
defendant; it was proposed to ask him about the whole conversation) : "The counsel
has a right .upon re-examination to ask all questions which may be proper to draw forth
the sense and meaning of the expressions used by the witness on cross-examination, and
the trial Court determines) ; 1899, McKnight i>. back of the church had been admitted; to
TJ. S., 38 C. C. A. 115, 97 Fed. 208 (letter of "repel the inference," the fact was admitted
accused nnfarorably criticising a witness, not that other men and women were also seen there
admitted to show witness' probable bias, because whispering); 1898, McAlpine v. State, 117 id.
of improper details contained in it) ; 1837, Pierce 93, 23 So. 130; 1895, People v. Johnson, 106
V. Gilson, 9 Vt. 222 (only the fact of a quarrel Cal. 289, 39 Pac. 622 (zeal based on strong con-
admissible, not the nature of it) ; 1897, Bertoli viction of defendant's innocence) ; 1895, People
V. Smith, 69 id. 425, 38 Atl. 76 ("the simple v. Fnitz, 109 id. 258, 41 Pac. 1040 (the witness
fact of trout)le " alone allowed, in the trial had quarrelled with the defendant, her husband.
Court's discretion). and called him names ; explanation was allowed
^ Accord: 1838, U. v. M'Kenna, Cr. & Dix that this was after defendant had struck lier) ;
Abr. 579 (the witness on cross-examination ad- 1896, Dennehy v. O'Connell, 66 Conn. 175, 34
mitted that some time had elapsed before he Atl. 920 (the reason why a supposed dispute
disclosed his information to the officials. A had taken place); 1871, Com. v. Jennings, 107
re-examination for the purpose of explaining Mass. 488 (the trial Court's discretion controls) ;
his reasons was objected to, but "Foster, B., 1872, Morrissey w. Ingham, 111 id. 65 (same);
permitted a re-examination on this point, and 1875, Brooks f. Acton, 117 Mass. 204, 209;
the witness thereupon in reply stated that he j 1850, Somerville & E. R. Co. v. Doughty, 22
was prevented by sickness from sooner lodging lN. J. L. 500 (explanation allowed) ; 1848, (^lapp
the informations"); 1874, Hall w. State, 51 Ala. v. Wilson, 5 Den. 286, 289 (the defendant^
15 (to prove improper intimacy between the witness was shown to be his son-in-law ; counter-
defendant and a female witness, the fact that evidence admitted that they had for some time
they were seen at a revival whispering at the been at variance).
1089
§ 952 TESTIMONIAL IMPEACHMENT. [Chap. XXXI
also of the motive by which the witness was induced to use those expressions ; but I think
he has no right to go further and to introduce matter new in itself and not suited to the
purpose of explaining either the expressions or the motives of the witness. . . . [The con-
versation] becomes evidence only as it may afiect the character and credit of the witness,
which may, be affected by his antecedent declarations and by the motive under which he
made them; but when once all which had constituted the motive and. inducement and all
which may show the meaning of the words and declarations has been laid before the
Court, the Court becomes possessed of all which can affect the character or credit of the
witness, and all beyond this is in my opinion irrelevant and incompetent." ^
(2) When to a witness is imputed hostility to the opponent, the true
process of explanation, consists in showing that the facts offered do not
really indicate the conclusion suggested, i. e. the hostility. Thus, when the
counter-evidence does not attempt to do this, but admits the hostility and
desires to show that it was justiJiaUe ly the opponent's conduct, the offer is
improper in two ways, first, because it does not at all explain away, but
concedes that hostility exists, and, secondly, because it tends to prejudice
unfairly the cause of the opponent by showing him to be au unjust man;
and for these reasons such evidence may be excluded :
1852, Johnson, 0. J., in Cornelius v. State, 12 Ark. 801 : " A long and tedious detail by
the witness of the numerous charges which he has heard against the accused could not
aid the jury in the least possible degree in their deliberations, as they could not thereby
ascertain the extent of his prejudice. , . . The question for the jury to determine is not
what it is that constitutes the basis or foundation of the feeling or prejudice that may be
entertained by the witness towards the accused ; but, on the contrary, it is as to the
existence of such prejudice. ... In this case the effect of the re-examihation was to
disclose the defendant's general character, and that too by particular acts." ^
§ 953. Preliminary Inquiry to Witness. On the principle of fairness and
of the avoidance of surprise, the settled rule obtains {post, § 1025), in offering
evidence of prior self-contradictory statements, that the witness must first
be asked, while on the stand, whether he made the statements which it is
intended to prove against him. Does the same rule apply to the use of
evidence of former utterances of the witness indicating Bias ? Must the
witness first be asked whether he made them ? He must, as a matter of
2 The authorities on this point are placed So. 110 (details excluded); 1900, People v.
post, § 21 15. Zigouras, 163 N. Y. 250, 57 N. E. 465 (admitted,
2 Accord, but usually laying down the rule subject to discretion of trial Court ; three judges
too strictly: 1852, Cornelius v. State, 12 Ark. dissenting); 1902, State v. Warren, 41 Or. 348,
787, 800 (rumors of previous similar crimes by 69 Pac. 679 (admissible in the trial Court's dis-
the defendant, stated by the witness in detail on cretion); 1902, State v. Stevens, — S. D. — ,
re-examination as the ground of his prejudice ; 92 N". W. 420 (reasons for hostility, excluded) ;
excluded) ; 1879, Butler v. State, 34 id. 484 1900, Hyde v. Swanton, 72 Vt. 242, 47 Atl. 790
(details of charges reported to witness by H. as (details of a quarrel, excluded),
having been made against her by defendant. This rule was apparently not recognized in
and causing ill-feeling on her part ; excluded England, though the following ruling may per-
on cross-examination) ; 1886, Selph u. State, 22 haps be otherwise explained: 1840, E. v. St.
Fla. 537, 541 (" It is permissible to prove that George, 9 C. & P. 488 (where a witness who
witness and prisoner had a controversy, from testified to an altercation with his father was
which hostility was engendered; it is of no asked on cross-examination about hostile Ian-
consequence which was in the right in such guage formerly used by him against his father,
controversy"); 1881, State W.Gregory, 33 La. and was then allowed to explain it by his
An. 743 (details of reasons for animositv, ex- father's prior misconduct),
eluded) ; 1902, State v. Erauk, 109 La. 131, 33
1090
§§ 943-969]
BIAS; PEELIMINARY INQUIRY.
953
principle; for the same reasons of fairness that require a witness to be given
an opportunity of denying or explaining away a supposed self-contradictory
utterance (post, § 1025) require him also to have a similar opportunity to
deny or explain away a supposed utterance indicating bias. Should force
be given to this principle, in spite of the absence of fixed common-law pre-
cedent? Under ordinary circumstances, it should be. But the rule re-
quiring such an inquiry before proving a prior self-contradiction has been
pushed so far, and applied so stiffly and arbitrarily, that on the whole it now
does quite as much harm as good. To import it in its present shape into
any subject where it does not strictly belong by precedent seems unwise.
Were the rule properly administered, no doubt it should have a place here
also. Moved perhaps by these conflicting considerations, the different
jurisdictions are found ranged on opposite sides in the present question.^
Wherever the rule requiring this preliminary inquiry is in force, it carries
with it, as of course, the developed details of the rule as established for self-
contradictions (post, §§ 1029-1038).
^ Eng, .- here the inquiry seems to have been
regarded as necessary: 1820, The Queen's Case,
2 B. & B. 313 (the broad rule is laid down
that "the legitimate object of the proposed
proof is to discredit the witness," "to bring the
credit of the witness into question by anything
he may have said or declared touching the
cause," and hence in every such case the asking
should be required) ; 1840, Patteson, J., in Car-
penter u. Wall, 11 A. & E. 804 ("I like the
i)road rule that, where you mean to give evi-
dence of a witnes.s' declarations for any purpose,
you should ask him whether he ever used such
expressions ") ; 1847, Alderson, B., in Attorney-
General V. Hitchcock, 1 Exch. 102 (" it is only just
and reasonable that the question should be put,"
though implying that it is not necessary) ; Ala. :
1843, Weaver y. Traylor, 5 Ala 564 (necessary) ;
Ark.: 1890, Hollingsworth v. State, 53 Ark. 387,
388, 14 S. W. 41 (left undecided); Cat.; 1860,
Baker v. Joseph, 16 Cal. 177 (necessary); Del.:
1900, State v. Deputy, 3 Pen. 19, 50 Atl. 176
(necessary); III.: 1890, Aneals v. State, 134
111. 401, 414 (necessary); 1901, Blanchard v.
Blanchard, 191 id. 450, 61 N. E.481 (necessary) ;
Ki/. : 1897, Horner v. Com., — Ky. — , 41
S. W. 561 (necessary); la.: 1871, Lucas v.
Elinn, 35 la. 14 (not necessary; the witness de-
nied that he was biassed, and former expressions
of enmity were subsequently offered against
him) ; La. : 1896, State v. Goodbier, 48 La. An.
770, 19 So. 755 (necessary) ; Aliss. : 1859, New-
comb u. State, 37 Miss. 383, 403 (necessary) ;
Nehr.: 1897, Davis v. State, 51 Nebr. 301, 70
N. W. 984 (necessary); N.H.: 1851, Titus u. Ash,
24 N. H. 331 (unnecessary); 1 857, Cook v. Brown,
34 id. 471 (same); N. Y.: 1856, Stacy v.
Graham, 14 N. Y. 492, 498 (necessary; here
a confession of falsity; overruling in effect
People V. Moore, 15 Wend. 419, 424, semble, con-
tra) ; 1892, People v. Brooks, 131 id. 325, 30
U. E. 184 (necessary); 1903, Brink «. Stratton,
176 id. 150, 68 N. E. 148, semble (not necessary) ;
N. C: 1842, State v. Patterson, 2 Ired. 354
(necessary); and the following cases, accord:
1847, Pipkin v. Bond, 5 id. Eq. 101; 1848,
Edwards v. Sullivan, 8 id. 304; 1856, Hooper
V. Moore, 3 Jones 429; 1869, State v. Kirkman,
63 N. C. 248; 1876, State v. Wright, 75 id. 440;
1897, Burnett v. R. Co., 120 id. 517, 26 S. E.
819; Or. : 1895, State v. Brown, 28 Or. 147, 41
Pac. 1042 (necessary) ; 1896, State v. Ellsworth,
30 id. 145, 47 Pac. 199 (necessary) ; 1898, First
Nat'l Banky. Com. U. Ass. Co., 33 id. 43, 52 Pac.
1050 (necessary " as a general rule"); U. S.:
1880, U. S. V. Schindler, 18 Blatchf. 230, semble
(not necessary); 1899, McKnight v. U. S., 38
C. C. A. 115, 97 Fed. 208, 212, semble (necessary) ;
Va. : 1880, Davis i'. Franke, 33 Gratt. 424, semble
(necessary); Vt. : 1837, Pierce ;). Gilson, 9 Vt. 222
(" whenever the credit of a witness is to be im-
peached by proof of what he has said, declared,
or done," this inquiry is proper ; but it is not in-
variably to be required, for " we can see no rea-
son why, in some such cases, the inquiry should
be first made of the witness ; the aggression
may have been on the part of the party, and not
of the witness ; the witness may think that he
entertains no ill-will towards the" party ") ; 1847,
State V. Goodrich, 19 id. U6, 119, semble (not
necessary) ; 1869, Ellsworth v. Potter, 41 id.
689 (not applicable to the fact of a quarrel, but
"there is some reason for applying the same
rule [as for self-contradictions] to mere proof of
ill-feeling which has only been evinced by un-
kind or threatening remarks about a party ") ;
1879, State v. Glynn, 51 id. 579 (holding that
the witness' attention must be called, but not
referring to Ellsworth v. Potter, supra) ; Wis. ;
1858, Martin v. Barnes, 7 Wis. 242, semble (not
necessary).
The rule, in any case, applies only to utterances,
not to conduct or circumstances such as an
assault or an employment.
1091
§ 956 TESTIMONIAL IMPEACHMENT. [Chap. XXXI
B. COERUPTION.
§ 956. General Principle. The theoretical place of this sort of impeach-
ment is not easy to determine. It is related in one aspect to Interest, in
another to Bias, in still another to Character (i. e. involving a lack of moral
integrity). It suffices to point out that the essential discrediting element is
a willingness to obstruct the discovery of the truth by manufacturing or
suppressing testimony. We here are not concerned with a party's similar
conduct as equivalent to consciousness of guilt {ante, § 278), but solely with
a witness' discrediting conduct. The testimony of one who exhibits such a
willingness must suffer the same doubts as that of one who is prejudiced.
There are several distinct situations : (1) A prior expression by the witness of
a general willingness to lie upon the stand ; (2) an offer to give false testi-
mony for money or other reward ; (3) a statement, after testifying, that he
has lied ; (4) an attempt to bribe another witness ; (5) the receipt of money
for his testimony; (6) the having been offered money for his testimony;
(7) habitual falsities, and sundry dishonorable conduct.
§ 957. ■Willingness to swear falsely. This, beyond any question, is ad-
missible as negativing the presence of that sense of moral duty to speak truly
which is at the foundation of the theory of testimonial evidence :
183-3, O'Nea/l, J., in Anon., 1 Hill S. C. 258 : " It was proved that Nimrod Mitchell
had said that ' if he heard any man say he would not swear a lie, he would not believe
him, for on some particular occasions he would, for he thought any man would.' The
substance of this declaration was that he would not, on some occasions, feel himself
bound to declare the truth on oath. . . . The man who believes that he is under no legal
or moral obligation at all times and under all circumstances to tell the truth under the
sanction of an oath has destroyed the only test by which he can claim credit at the hands
of men. Such evidence is not establishing bad character from particular facts." *
§ 958. Offer to testify corruptly. An offer to testify corruptly should
stand on the same footing ; it is only a little less broad in its bearings than
the preceding evidence, but it indicates a similar untrustworthiness.^
^ 1781, De la Motte's Trial, 21 How. St. Tr. implying a willingness Co withhold for a bribe
791 (the witness had said "I swear anything," what he knew) ; 1887, Barkly i>. Copeland, 7-1
speaking of the trial in hand; admitted); 1793, Cal. 1, 5, 1.5 Pac. 307 (statements of a conviet
Newhal v. Adams, 1 Root 504 (" he would that he intended to testify falsely for C. in or-
swear to anything, if he could get 6s, by it," ad- der to get the assistance of C.'s influence for a
mitted); 1885, State v. Allen, 37 La. An. 685, pardon, admitted); 1892, Roberts «. Com., —
687 (trial Court allowed in discretion to exclude Ky. — , 20 S. W. 267 (an offer to swear for the
such questions as " Would you in order to save opponent if he would help to clear the witness
your own life swear to a falsehood?"); 1842, from a, criminal charge, admitted); 1895, Al-
Halleyw. Webster, 21 Me 461,464 (statements ward v. Oaks, 63 Minn. 190,65 N. W. 270 (a
" that he had lost his devotion ; that he intended letter showing " a corrupt disposition to make
now to serve the devil as long as he had served his testimony in this case depend upon the
the Lord," etc., e,xcluded) ; 1854, Flarrington v. pecuniary or other valuable consideration that
Lnicoln, 2 Gray 133 (that the witness had said might be offered him "). Excluded, but very
he would lie on the stand ; inadmissible, semife) ; singular rulings: 1833, people v. Genung, 11
1864, Beaubien v. Cicotte, 12 Mich. 484 ("he Wend. 18 (a charge of obtaining a note bv false
played good Lord and good devil, because he pretences; an offer by the defrauded witness not
did not know into who.se hands lie might fall," to testify if the defendant would make a set-
admitted) ; 1898, Sweet l: Gilmore, 52 S. C. 530 tlement,' excluded) ; 1847, People v. Austin, 1
30 S. E. 395 (willingness to lie, admissible). Park. Cr C. 157 (an offer to refrain for money
1 Admitted: 1861, Jackson v. Thomason, 8 from testifying, bv a father who had a claim
Jur. N. s. 134 (admitting letters apparently under the statute for the loss of services of the
1092
§§ 943-969]
COREUPTION.
960
§ 959. Confession that Testimony was False. This is evidentially of the
same value as the preceding conduct. The difficulty is that it is apparently
not circumstantial evidence at all, but testimonial (i. e. is to be taken as the
assertion of a past fact), and therefore obnoxious to the Hearsay rule. If
this were correct, it could be used only under the Hearsay Exception for
Declarations against Interest, and yet it is barred there by the arbitrary ex-
clusion of confessions of a crime (here, perjury) by a third person {post,
§ 1476). That arbitrary limitation ought to be ignored, here as in other
cases ; but it is not necessary to resort to that expedient, for the evidence in
question need not be treated as a hearsay assertion. It is in effect a self -con-
tradictory statement (i. e. " I now say that the facts are just the opposite of
what I formerly asserted"), and may therefore be used by virtue of the
principle which admits them (post, § 1040). Such is the solution usually
reached.^
§ 960. Attempt to suborn another Witness. The witness' attempt to
bribe another witness to speak falsely or to abscond indicates for the case in
hand a corrupt intention on the first witness' part, and thus affects his
trust w or thiness.^
son whose death was the subject of the charge,
excluded).
1 Admitted: 1675 (?), Woodford's Case, Vin.
Abr. XII, 40 (the confession of one who had
falsely accused another of piracy and had de-
posed against him, held inadmissible onlybecause
of the former's subsequent attainder); 1855,
Rorailly, M R , in Greensladey. Dare, 20Beav.
284, 290 (admitted testimony of a witness' ad-
missions of perjury, but declared that he paid no
attention to it unless corroborated) ; 1898, Peo-
ple V. Prather, 120 Cal. 660, 53 Pac. 259 (pre-
vious confessions of falsehoods as to the matter
in hand, allowed to be asked for on cross-exam-
ination); 1875, McGinnis t> Grant, 42 Conn. 77
(affidavit by the witness that his testimony had
been falsely given for hire, admitted); 1896,
Georgia R. & B. Co. u. Lybrend, 99 Ga. 421,
27 S. 15. 794 (admission that he had made a
false affidavit in connection with the trial, ad-
mitted) ; 185.3, Perkins v. State,4 Ind. 222 (state-
ments of a prosecuting witness that he had
falsely made the charge, admitted) ; 1836, Sav-
age, C. .1., in People v. Moore, 15 Wend. 419,
424 (" If a witness, the moment he leaves the
stand, should declare that his whole testimony
was a fabrication," it would destroy his credit ;
admitting such a statement, made in jail after
leaving the stand); 1856, Stacy v. Graham, 14
N. Y. 492, 498 (confession that the testimony
was false, and that he regretted having so testi-
fied; assumed as admissible). Excluded: 1898,
People V. Arrighini, 122 Cal. 121, 54 Pac. 591
(questions to a defendant eliciting testimony
that he had wilfully lied at the coroner's in-
quest, excluded ; clearly unsound) ; 1883, Crafts
V. Com., 81 Ky. 253 (confession of perjury).
Compare the cases cited ante, § 527 (invali-
dating one's own former testimony), post, § 1040
• (self-contradictory conduct), and post, § 1476
(statements against interest).
1093
1 1680, Lord Stafford's Trial, 7 How. St. Tr.
1401 (that the witness had offered a bribe to an-
other in the same suit, admitted) ; 1681, Staple-
ton's Trial, 8 id. 519 (same); 1775, Trial of
Maharajah Nundocomar, 20 id. 1035 (same) ;
1820, Queen Caroline's Trial, Linn's ed., Ill, 38,
45 (same) ; 1885, Luhrs v. Kelly, 67 Cal. 289,
291, 7 Pac. 696 (an attempt to bribe another
witness ; admissible only where the former has
testified on material points) ; 1887, Barkly v.
Copelaiid, 74 id. 1, 5, 15 Pac. 307 (an offer of
the defendant's influence for a pardon, the wit-
ness being a convict, admitted) ; 1897, People v.
WongChuey, 117 id. 624, 49 Pac. 833 (attempt
to bribe another witness) ; 1897, State v. Van
Tassel, 103 la. 6, 72 N. W. 497 (falsehood and
deception by a detective in obtaining a confes-
sion may be considered) ; 1849, Cooley v. Nor-
ton, 4 Cush. 94 (attempt to bribe defendant,
when witness in another suit, not to testify, ex-
cluded) ; 1884, People v. White, ,53 Mich. 537,
540, 19 N. W. 174 (bastardy ; questions allowed
to the prosecutrix whether she had not said that
she was going to get a prostitute to swear a case
against the defendant) ; 1896, Matthews v.
Lumber Co., 65 Minn. 372, 67 N. W. 1008 (at-
tempt to corrupt a witness, admissible in discre-
tion) ; 1883, State V. Stein, 79 Mo. 330 (offer
for money to furnish testimony, admitted) ;
1893, State v. Hack, 118 id. 92, 23 S. W. 1089
(that she had offered a witness money to leave
the city, admitted) ; 1903, State v. ^hornhill,
— id. — , 76 S. W. 948 (attempt to induce an
opposing witness to abscond) ; 1882, Schultz v.
R. Co., 89 N. Y. 248 (attempt to get another
witness to testify falsely, admitted) ; 1 898, Beck
V. Hood, 185 Pa. 32, 39 Atl. 842 (attempt to
corrupt a juror on the preceding trial of the
same case, admitted, on cross-examination).
For such evidence against a, party, not a wit-
ness, see ante, §§ 278, 280.
§ 961 TESTIMONIAL IMPEACHMENT. [Chap. XXXI
§ 961. Receipt of Money for Testimony; Payment of 'Witness' Expenses.
The witness' receipt of money for testimony may indicate corruption in two
ways : first, from the conduct in receiving it, may be inferred a willingness to
speak falsely ; secondly, from the fact of its having been received or promised,
may be inferred an interest in favor of the cause of the giver, just as any fact
of pecuniary interest makes probable such a partiality. It is important to
distinguish the two kinds of inference, for the former inference can only
legitimately be drawn where the money or other reward has been taken con-
sciously with a view to false testimony ; where such an understanding attends
the bargain, the witness' conduct raises a clear inference of his willingness
to speak falsely.^ But the second inference is not only of a different sort,
but is much weaker ; it is not from the witness' own conduct, but from the
mere external circumstance that money has come or will come to him for
his testimony ; i. e. the element of knowing false testimony is lacking, and
the inference may merely be that the money is likely to have some biassing
effect of the same general sort that is attributable to all pecuniary interest
[post, § 966). This second inference is ordinarily the only allowable one
in the usual case where it is made to appear that a witness' expenses 'are
paid by his party or that as expert he is to receive an extra fee from that
party. These facts may legitimately be brought out, but they are not to be
understood as involving necessarily a corrupt intention.^
§ 962. Mere Receipt of Offer of a Bribe. Where the witness in question
has merely been offered a bribe, no inference of any sort as to the witness'
testimony can be drawn ; the rejection of the bribe deprives the offer of all
its force in that respect.^ From the point of view of the party offering it,
1 1875, McMath v. State, 55 Ga. 303, 307 ination to qualify, admitted); 1896, Jackson v.
(an agreement for money not to testify, admis- Com., — Ky. — , 37 S. W. 847 (whether she
sible) ; 1900, Schmertz v. Hammond, 47 W. Va. was paid anything for coming from an adjoining
527, 35 S. E. 945 (agreement to give witness a county to testify, allowed) ; 1879, State v. Tos-
sharein proceeds of judgment if recovered, ad- ney, 26 Minn. 262, 3 N. W. 345 (liquor-selling;
missible); 1858, Martin v. Barnes, 7 Wis. 242 receipt of money by witness as detective for
(a bargain by which a medical witness was to such offences, admitted); 1895, State v. Hay-
testify to imaginary injuries, admitted). ward, 62 id. 474, 65 N. W. 63 (that a witness for
2 1901, Southern B. Co. v. Crowder, l.SO the prosecution was being boarded by the State,
Ala. 256, 30 So. 592 (payment of sundry ex- admitted); 1898, Com. u. Farrell, 187 Pa. 408,
penses of attendance beyond the amount of legal 41 Atl. 382 (what contract for pay a detective
fees, admissible) ; 1899, Bryan w. State, 41 Fla. had, allowed on cross-examination) ; 1903, State
643, 26 So. 1022 (that a witness' attendance was v. Mulch, — S. D. — ,96 N. W. 101 (that
procured by funds of a certain association, al- witness fees of a dollar a day were promised,
lowed) ; 1903, Sylvester v. State, — id. — , 35 admitted) ; 1881, Moats v. Raymer, 18 W. Va.
So. 142 (payment of fare by the party calling 642, 645 (what fee is to be received by an attor-
him, admitted) ; 1898, North Chicago S. R. Co. ncy testifying for his client, admitted). Com-
V. Anderson, 176 111. 635, 52 N. E. 21 (relations pare the authorities cited ior interest, post, § 969.
of witness with party,, including interviews with "■ 1820, The Queen's Case, 2 B. & B. 303 (to
counsel, admissible; so also tie fact that the show the probability of testifying witnesses hav-
witness had been promised pay for time lost in ing been bribed, evidence that another pereon,
attendance) ; 1902, Kerfoot f. Chicago, 195 id. not put on the stand, had been offered a bribe
229, 63 N. E. 101 (expert witnesses to land- value, by the opponent's agent, excluded); 1847, At-
Jstifying for the city, allowed to be cross ex- torney-General i-. Hitchcock, 1 Exch. 91 ("It is
ainined to the amount of money received by totally irrelevant to the i.ssue that some person
them in the preceding year as witnesses, and to should have thought fit to offer a bribe to the
other facts tending to show a professional occu- witness ... if that bribe was not accepted ; it
patiou for the city as value-witness) ; 1 903, is no disparagement to a man that a bribe is
Wrisley Co. v. Burke, 203 id. 250, 67 N. E. 818 offered to him ; it may be a disparagement to
(that a physician had been paid for his exam- the person who makes the offer"). A question
1094
§§ 943-969]
COERUPTION.
§ 964
of course, such an attempt at corruption is admissible against him, as show-
ing his consciousness of a bad cause (ante, §§ 278, 280) ; but this involves
the necessity of proving the identity of the offeror with the party, — a
matter not always feasible.
§ 963. Habitual Falsities, and Sundry Corrupt Conduct. In various ways
a witness may indicate a state of mind which partakes of the nature of cor-
ruption and of bias, and is not easily to be exactly labelled ; the nature and
strength of the inference will vary in different circumstances.^ The only
difficult question is present by conduct indicating a disposition or habit or
general scheme to malce false charges or claims. On this point there is much
difference of opinion.^ The only distinction that is legitimate is between
conduct indicating a corrupt moral character in general and conduct indicat-
ing a specific corrupt intention for the case in hand. Facts offered with the
former purpose fall under the character-rule {post, § 979), and could be
proved by cross-examination only, not by extrinsic testimony. Facts offered
for the latter purpose could be proved by either mode {ante, § 943). But
there ought to be no doubt that on cross examination at any rate such facts
, could be inquired for, whichever the purpose be ; for even the character-rule
does not forbid them on cross-examination {post, § 981).
§ 964. Preliminary Inquiry of the 'Witnesa. Whatever rule is adopted as to
the necessity of a preliminary inquiry to the witness about former expres-
whether,the witness had been offered a bribe in
the name of the opponent was permitted in Com.
V. Sacket, 22 Pick;. .395 (1839), on the ground
that an affirmative answer might be followed up
by further questions leading to the fact of the
acceptance of the bribe.
1 1778, Captain Baillie's Case, 21 How. St.
Tr. 343 (an offer to suppress an inquiry, admit-
ted) ; 18.58, Winship v. Neale, 10 Gray 382
(whether certain proceedings in the case had
not been taken really with a view to hampering
the opponent's case ; admitted in discretion) ;
1888, Hitchcock v. Moore, 70 Mich. 116, 37
N. W. 914 (an attempt to have the opponent
made drunk at the time of trial ; admissible,
semble] ; 1869, People v. Thompson, 41 N. Y. 6
(that a witness had left the jurisdiction in order
to cause the trial's postponement, admitted).
Compare the cases cited ante, § 950.
' With the following cases compare some of
those cited ante, §§ 280,340, 342: 1902, O'Avig-
non V. Jones, 9 Br. C. 359 (the issue involved an
alleged forgery of the plaintiff's name by the
defendant ; the witness to the forgery, B., was
allowed to be impeached by evidence of a con-
spiracy between B. H and the plaintiff, involv-
ing past transactions also, to give false evidence
against the defendant) ; 1885, Russell v. Crut-
tenden, 53 Conn. 564, 4 Atl. 267 (action on a
warranty of a hor.se's soundness; a question as
to how many other such purchases the defendant
had in 20 years tried to revoke for unsoundness,
excluded) ; 1870, Com. v. Kegan, 105 Mass. 593
(rape; former false charges agaiust others of
having made her pregnant, excluded); 1893,
Miller v. Curtis, 158 id. 127, 131, 32 N. E. 1039
(charge of indecent assault ; admissions of other
similar false charges made against others, re-
ceivable to show a purpose to get money by such
charges; but here the statements were not so
construable) ; 1888, People v. Evans, 72 Mich.
367, 377, 40 N. W. 473 (rape by father ; former
charges of a similar sort by the prosecutrix
against all sorts of persons, and the falsity of
the charges, admitted) ; 1879, Plummer v. Ossi-
pee, 59 N. H. 55, 57 (highway injury; cross-
examination of plaintiiff's husband as to a prior
claim against another town for the same in-
juries, held properly excluded in discretion) ;
1881, Watson v. Twombly, 60 id. 491 (assault;
prior false charge of assault by the plaintiff
against the defendant, held allowable or not in
discretion ; but here it was held erroneously
excluded as being per se irrelevant); 1896,
Cecil u. Henderson, 119 N.C. 422, 25 S. E. 1018
(plea of the statute of limitations ; whether he
had not pleaded thus to various other claims,
excluded); 1903, State r. Lewis, — id. — ,45
S. E. 521 (larceny of money from G. when
drunk ; that G. was " in the habit of getting
drunk and losing money, and accusing people
pf stealing same," admitted to discredit G.) ;
1899, Fairfield P. Co. v. Ins. Co., — Pa. — ,
44 Atl. 317 (intentional misstatement in another
proof of loss to the same defendant for goods
lost in same fire, allowed to be proved) ; 1 896,
Hart V. Atlas K. Co., 23 C. C. A. 198, 77 Fed.
399 ( breach of contract ; whether the defendant
had not about the same time cancelled similar
orders to other business hoases, admitted in
discretion).
1095
§ 964 TESTIMOOTAL IMPEACHMENT. [Chap. XXXI
sions of Bias {ante, § 953) obtains also for proof of former expressions indi-
cating corrupt intention ; the two kinds of evidence are treated as standing
practically on the same footing in this respect.^
C. Interest.
§ 966. General Principle; Parties and W^itnesses in Civil Cases. The
abolition of disqualification by reason of Interest {ante, § 576) was merely a
removal of the absolute bar to testimony, and left untouched the relevancy
of all facts which bear on the probable partiality of the witness by reason of
his pecuniary interest in the result of the suit. Eulings under the old dis-
qualification are practically no longer precedents ; the scope of the circum-
stances of interest that may be used to discredit witnesses is indefinite and
is not the subject of frequent rulings. Statutes provide in some States that
every fact which would formerly have served to disqualify may stni be
used to discredit ; but the body of precedents under the modern regime is
comparatively small, as it ought to be. There is no doubt that the interest of
a party or of a witness in the event of the cause is a circumstance available
to impeach him :
1895, Brown, J., in Trinity Co. Lumber Co. v. Denham, 88 Tex. 203, 30 S. W. 856 : "If
it be admitted, however, that Borden had parted with his interest in the suit before he
first gave his testimony, still we think it was permissible to show that he had been in-
terested in the case, the extended character of that interest, and the time and circum-
stances under which he parted with his interest, all of which would go to his credibility.
At common law a witness was rendered incompetent to testify by reason of his interest
in the result of the suit. A release would restore his competency, but it is by no means
certain that it would remove from his mind the bias, if any, that such interest would oc-
casion ; and every fact or circumstance which would tend to show to the jury his relation
to the case or the parties was admissible, in order that they might determine what weight
they ought to give to his evidence." ^
1 1820, The Queen's Case, 2 B. & B. 313, Conn. Gen. St. § 1098; Ga. Code, § 5U6; 111.
Linn'sed.,III,246,258{asklngisneee3sary,before Rev. St. c. 51, § 1; 1897, West Chicago St. R.
proving an act of corruption, siuce "an inquiry Co. v. Dougherty, 170 111. 379, 48 N. E. 1000;
mto the act of corruption will usually be, both lud. Rev. St. § 519 ; la. Code, § 4602 ; Kan. Gen.
in form and effect, an inquiry as to the words St. c. 95, § 330, c. 102, § 217 ; La. Rev. Civ. C.
spoken by the supposed corrupter"; opinion by § 2282; Me. Rev. St. c. 82, §93; Md. Pub.
all the judges; erroneous, ( 1 ) because the object Gen. L. Art. 35, § 5; Mich. Comp. L. c. 282,
of asking is to afford an opportunity to explain § 99 ; Minn. Gen. St. § 5658 ; Miss. Gen. St. L.
an apparent inconsistency, and there is here no §§ 1738, 1746 (quoted post, § 987) ; Mo. Rev. St.
question of inconsistency and nothing to explain, §§ 4218, 8918; Nebr. Comp. St. § 5904; Nev.
(2) because to carry the rule this far would be Gen. St. § 3398 ; N. J. Gen. St. Evid. § 3 ; N. M.
in effect to apply it to all discrediting conduct, Comp. L. § 3016; Oh. Annot. Rev. St. § 7284
which would unfairly hamper the impeaching (criminal cases) ; Okl. St.c. 66,§ 331 ; Or. Codes
party and often render impeachment impracti- & G. L. § 710 ; 1895, Hanson ii. Red Rock, 7 S. D.
cable); 18.53, Pleasant v. State, 13 Ark. 460, 38, 63 N. W. 157 ; 1895, Trinity Co. Lumber Co.
477 (offer to stifle prosecution) ; 1880, Davis v. v. Denham, 88 Tex. 203, 30 S. W. 856; Vt. St.
Frauke, 33 Gratt. 424 (conversation in which an §1236; Wash. Annot. C. & St. § 5991. The few
attempt to suborn a witness was made) ; 1858, judicial rulings concern instructions in which
Martin v. Barnes, 7 Wis. 242 (a bargain show- counsel has attempted improperly either to
ing the witness' corrupt interest in the suit). control the jury's freedom of judgment or to
^ The following rulings and statutes declare juggle with words for the purpose of securing a
the general principle, which is unquestioned; i'udicialerror; forexample: 1900,NorthChicago
the statutes are quoted in full, ante, § 488; St. R. Co. jj. Dudgeon, 184 III. 477 56 N. E. 796
Alaska C. C. P. § 1033 ; Ariz. Rev. St § 2037 ; (whether an instruction is required ; 1895,
1901, Lancashire Ins. Co. v. Stanley, 70 Ark. 1, Rucker v. State, — Miss. — , 18 So. 121 (it is
62 S. W. 66; Colo. Annot. St. § 4822, semble; error to tell the jury that they should disregard
1096
§§ 943-969]
INTEREST; CRIMINAL CASES.
§ 968-
§ 967. Accomplices and Co-indictees in a Criminal Case. It bears against
a witness' credibility that he is an accomplice in the crime charged and testi-
fies for the, prosecution ; ^ and the pendency of any indictment against the
witness indicates indirectly a similar possibility of his currying favor by
testifying for the State ;^ so, too, the existence of a promise or just expectation
of pardon for his share as accomplice in the crime charged.^ When the co-
indictee testifies for tlie accused, his situation here also may be considered
as tempting him to exonerate the other accused and thus help towards his
own freedom.*
§ 968. Accused in a Criminal Case. The fact of being a party in the
cause {ante, § 966) and in particular a defendant in a criminal cause, may be
considered as affecting the witness' credibility.-' The only question that
the teatimony of interested persons) ; 1898, Boice
V. Palmer, 5.5 Nebr. 389, 75 N. W. 849 (interest
is to be considered ; but there is no doctrine that
such a one " will not be as honest " as others).
^ This is unquestioned ; compare the authori-
ties cited ante, §§ 526, 580 (accomplice not dis-
qualified), and post, § 2056 (accomplice requires
corroboration).
2 1868, I^eople a. Robles, 34 Cal. 591, 593;
1895, People v. Dillwood, 106 id. 129, 39 Pac.
439 (that other charges are pending against the
witness, admitted) ; 1866, Craft v. State, 3 Kan.
450, 478; 1858, Quinsigamond Bank v. Hobbs,
11 Gray 250 (existence of a criminal prosecution
a<;aiust a witness on the charge of doing that
which he now denies he did, admitted) ; 1880,
State V. Rearis, 71 Mo. 419 (to rebut the intimar
tion that an accomplice was testifying for the
prosecution as the price of freedom, two other
E ending indictments against him were offered,
ut were excluded because the fact of the defend-
ant being joined in them might prejudice him) ;
1880, Ryan v. People, 79 N. Y. 600 (a witness
asked whether he liad been indicted; held
proper). Compare the use of the same evi-
dence to show bad moral character {post, §§ 982,
987), and to show bias (ante, § 949).
' 1898, State u. Nelson, 59 Kan. 776, 52 Pac.
868 (questions as to agreement not to prosecute
a witness turning State's evidence, held properly
rejected on the facts) ; 1896, Territory v. Chavez,
8 N. M. 528,45 Pac. 1107 (a hope of pardon,
without an express promise, is relevant) ; 1895,
State V. Kent, 4 N. D. 577, 62 N. W. 631 (here
the fact that the accomplice was after some
time still unprosecuted was used as indicating
that he was under some hope of release); 1859,
Allen V. State,10 Oh. St. 288, 306 (" If A. is con-
victed, do you expect to be prosecuted? " al-
lowed) ; 1879, Kilrow v. Com., 89 Pa. 480, 485,
semble (promise of pardon).
On the principle of Explanation {ante, §§ 34,
952), the fact may be shown by the prosecution,
even before express impeachment (because his
relation to the cause is an implied impeach-
ment), that no such promise has been made:
Contra: 1903, Owens v. State, — Miss. — , 33
So. 718 (a co-conspirator, already convicted of
the murder charged against the defendant, testi-
fied for the State; the fact that he had been
1097
offered no inducement by the authorities to
testify was excluded ; an astonishing ruling, as
also that of Madden v. State, 65 Miss. 176, 3 So.
328, followed as the authority).
* 1898, Titus V. State, 117 Ala. 16, 23 So. 77
(indictment of defendant's witness for same mur-
der, admitted); 1897, Shaw v. State, 102 Ga.
660, 29 S.E. 477 (train-wrecking; indictment of
defendant's witness for robbing the cars of the
same railroad, admitted) ; 1841, Com. v. Turner,
3 Mete. 25 (that the witness' father was under
indictment for being concerned in the same
crime with the defendant in whose favor she was
testifying, admitted). Contra: 1897, Lewis v.
Com., — Ky. — , 42 S. W. 1127 (indictment of
defendant's witness as accomplice, excluded on
the theory that it involved character-impeach-
ment; present principle ignored).
"^ 1888, Norris a. State, 87 Ala. 85, 88, 6 So.
371; 1900, Halderman v. Terr., — Ariz. — ,
60 Pac. 876; 1901, Blair v. State, 69 Ark. 558,
64 S. W. 948; 1896, People v. Van Eman, 111
Cal. 144, 43 Pac. 520; 1899, State v. Webb,
6 Ida. 428, 55 Pac. 892; 111. Rev. St. c. 38,
§ 426: 1882, Hirschman v. People, 101 111. 576;
1884, Rider v. People, 110 id. 11, 13; 1897,
Kirkham v. People, 170 id. 9, 48 N. E. 465;
1900, Hellyer v. People, 186 id. 550, 58 N. E.
245; 1902, Henry v. People, 198 id. 162, 65
N. E. 120; 1867, Uailey v. State, 28 Ind. 285,
287; 1876, Greer v. State, 53 id. 421; 1899,
Helms V. U. S., 2 Ind. T. 595, 52 S. W. 60 ;
1880, State v. Moelchen, 53 la. 310, 316, 5 N. W.
186 ; 1887, State v. Sterrett, 71 id. 388, 32 N. W.
387; 1902, State v. Hossack, 116 id. 194, 89
N. W. 1077; Kan. Gen. St. c. 102, § 217; 1898,
State V. Wiggins, 50 La. An. 330, 25 So. 334 ;
Mich. Comp. L. c. 282, § 100; 1895, People v.
Resh, 107 Mich. 251, 65 N. W. 99 ; 1903, State
V. Ames, — Minn. — , 96 N. W. 330; 1896,
State V. Taylor, 134 Mo. 109, 35 S. W. 92;
1898, State V. Summar, 143 id. 220, 45 S. W.
254; Mont. P. C. § 2442; Nebr. Comp. St.
§ 7199; 1895, Basye v. State, 45 Nebr. 261, 63
N. W. 811; 1899, Philamalee v. State, 58 id.
320, 78 N. W. 625 ; Nev. Gen. St. § 3398 ; 1899,
Emery v. State, 101 Wis. 627, 78 N. W. 145.
It is regrettable that Courts are willing to waste
time in discussing in their opinions such a self-
evident proposition.
§ 968 TESTIMONIAL IMPEACHMENT. [Chap. XXXI
arises in this connection is whether the judge, under the unfortunate modern
rule forbidding a charge to the jury upon the facts or upon the credibility of
specific witnesses, is violating that rule in mentioning this proposition to the
jury in a criminal case, — a question which has to do with the law of Trials,
not of Evidence.
§ 969. Bonds, Rewards, Detective-Employment, Insurance, etc., as affecting
Interest. The circumstances which give to a witness an interest in the event
of the cause and may therefore be suggestive of testimonial doubt or detrac-
tion have usually a significance so apparent that it is either idle to dispute
or useless to maintain their admissibility. Certainly to attempt to measure
judicially the weight of a circumstance which the jury can equally well esti-
mate by the unwritten and unconscious canons of experience is to encumber
the law with needless rules. The abolition of the rules for interest-disquali-
fication has left this subject practically untrammelled. Only a few situations
have called for rulings, and these are plain enough in their reasoning. (1) One
who as a spy obtains information of a crime is not necessarily open to dis-
credit thereby ; i but a person who for that purpose has employed trickery,
or who has worked for hire in his investigations, or who by his function as a
police or prosecuting officer has committed himself in a partisan manner,
may under the circumstances be open to the suspicion of bias or interest.^
(2) That a witness is as surety or bondsman interested in the fate of one of
the parties may also affect his credibility.^ (3) That he wUl receive a reviard
in case of conviction may affect the credibility of a witness for the prose-
cution.* (4) That the party is insured, against accidents does not indicate
any additional partiality for a defendant-witness in an action for personal
injuries; 5 though it may otherwise have a bearing.^ (5) That a witness,
1 1848, R. d. MuUins, 7 State Tr. n. s. 388, U S. W. 41 (the mere fact that a reward
1110, 3 Cox Cr. 756. was offered, excluded); 1896, Myers ». State,
2 Besides the following cases, compare those 97 Ga. 76, 25 S. E. 252 (the fact of a reward for
cited uuder §§ 2060, 2066, -post (corroboration of the apprehension of the accused, admissible
accomplices) : 1894, People v. Rice, 103 Mich, against an apprehending officer, whether or not
350, 61 N. W. 540 (that the witness was a hired it appears to have influenced his action),
detective in the case, admitted) ; 1897, Davis v. "* Here the real objection is that the jury
State, 51 Nebr. 301, 70 N. W. 984; 1899, Kast- might improperly be reckle-ss in their award of
ner ;;. State, 58 id. 767, 79 N. VV. 713; 1901, damages: 1898, McQuillan v. El. Light Co., 70
Watson !>. Cowles, 61 id. 216, 85 N. W. 35; Conn. 715, 40 Atl. 928 (whether defendant was
1897, State v. Black, 121 N. C. 578,28 S. E. protected by employers'-liability insurance ; not
^^\ .. ,, . „ admissible to show that defendant had no mo-
» 1898, McAlpine v. State, 117 Ala. 93, 23 tive to testify falsely); 1898, Demars v. Mfg.
So. 130 (being surety on bond of G. indicted for Co., 67 N. H. 404, 40 Atl. 902 (whether an ac-
asimilarcnme, excluded); 1895, Peoples. Chin cident insurance company was defending the
Hane, 108 Cal. 597, 41 Pac. 697 (that the de- case; improper, but here not material); 1898,
ceased was on the bail bond of a third person Day v. Donohue, 62 N. J. L. 380, 41 Atl. 934
charged with assaulting the defendant, admis- (defendant, testifying to his due care as an era-
, xt''e<^^*'^',\,®°'' "■ ^^'=°"o°' 1"5 N. Y. 45, ployer, allowed to be asked whetlier he was
67 N. h. 125 (that the bail of a witness for the insured against such losses, in trial Court's dis-
prosecution had been raised, so as to make it cretion) ; 1902, Shoemaker v. Bryant L. & S.
desirable for him to favor the prosecution and M. Co , 27 Wash. 637, 68 Pac. 380 (that defend-
thus be released, admitted); 1897, Braden v. ant is insured, excluded ; but here an officer of
McCleary, 183 Pa. 192, 38 Atl. 623 (that the the defendant companv was allowed, on the
witness mother-in-law had ^'ven a bond to facts, to be asked about such insurance to
protect the defendant, a sheriff, admitted). contradict his prior statement and exhibit his
Compare the cases cited ante, § 949 {em- interest)
p?ow6esofaparty). « Compare the citations ante, §§ 282, 393.
* 1890, Hollmgsworth v. State, 53 Ark. 387, . »» >
1098
§§ 943-969] INTEEEST. § 969
not a party, is the injured person in a prosecution for a crime may indicate a
bias in the causeJ These and such other instances as daily present them-
selves in trials are solvable without difficulty by the ordinary judgments of
experience. Commonly, a ruling of exclusion is unnecessary, because the
circumstance, if really worthless, would do no harm if admitted.
' 1897, Doyle v. State, 39 Fla. 155, 22 So. 272 woman in rape) j 1898, State v, Nestaval, 72
Minn. 415, 75 N. W. 725 (woman in bastaidy).
VOL. II. — 7 1099
§977
BOOK I, PART I, TITLE II.
[Chap. XXXII
Sub-title H (continued) : TESTIMONIAL IMPEACHMENT.
Topic III : EVIDENCING MORAL CHARACTER, SKILL, MEMORY, KNOWL-
EDGE, ETC. (BY PARTICULAR INSTANCES OF CONDUCT).
CHAPTER XXXII.
A. Moral Chakaoteb, as evidenced by
Paetioular Acts.
§ 977. General Principle.
§ 978. Same : Relevancy and Auxiliary Pol-
icy, distinguished.
§ 979. Particular Acta of Misconduct, not
provable by Extrinsic Testimony from Other
Witnesses.
§ 980. Record of Judgment of Conviction for
Crime.
§ 931. Cross-examination not forbidden ;
General Principle.
§982. Same: Relevancy of Acts asked for on
Cross-examination ; Kinds of Misconduct ; Ar-
rest and Indictment.
§ 983. Same : Relevant Questions excluded
on grounds of Policy ; Three Types of Rule ;
Cross-examination of an Accused Party.
§ 984. Privilege against Answers involving
Disgrace or Crime.
§ 985. Summary of the Preceding Topics.
§ 986. Same : History and State of the Law
in England and Canada.
§ 987. Same : State of the Law in the various
Jurisdictions of the United States.
§ 988. Rumors of Particular Misconduct, on
Cross-examination of a Witness to Good Charac-
ter, distinguished.
£. Defects op Skill, Memory, Knovcledge,
etc., as evidenced by particular facts.
§ 990. General Principles ; Proof by Extrin-
sic Testimony.
§ 991. Skilled Witness ; Evidencing Inca-
pacity by Particular Errors (Reading, Writing,
Experimentation, etc.).
§ 992. Same : Grounds of an Expert Opinion.
§ 993. Knowledge ; Testing the Witness' Ca-
pacity to Observe.
§ 994. Same : Grounds of Knowledge, and
Opportunity to Observe.
§ 995. Memory ; Testing the Capacity and
the Grounds of Recollection.
§ 996. Narration ; Discrediting the Form of
Testimony.
A. Moral Character, as evidenced by Particular Acts.
§ 977. General Principle. In the foregoing sections has been examined
the modes of evidencing Bias, Interest, and Corruption, — a class of evi-
dence for which there is no discrimination against extrinsic testimony as
the channel of proof. In the ensuing topics, namely, the mode of evidenc-
ing Moral Character and other general qualities, is found the starting-point
and peculiar hold of that discrimination against extrinsic testimony which
is a feature of such great practical importance and serves to divide discredit-
ing evidence into two contrasted classes (ante, § 878). The significance of
this general expedient is that, while saying nothing as to the relevancy of
the facts offered, it prohibits them, on grounds of auxiliary policy, from
being offered through other witnesses, and leaves them to be got at solely by
the cross-examination of the witness himself who is desired to be discredited
thereby. This feature of our law, in its consequences, gives it in this respect
a character peculiarly its own and different from that of the Continental
system of evidence. On the one hand, it practically cuts off a great part of
that method of investigating and discrediting the whole life of the witness
which, in the latter system, impresses us as so unfair and so liable to abuse.
1100
§§ 977-996] CHARACTER, FROM CONDUCT. § 979
Ou the other hand, it elevates into prominence the expedient of cross-exam-
ination, already so much more common and useful an expedient in our prac-
tice than in theirs, and it thus contributes additionally to the emphasis and
the potency of that instrument in our system of trials.
The influence of the present doctrine, while essentially and peculiarly
applicable to evidence of particular conduct as evidencing moral character,
extends itself naturally to the use of particular facts to prove other defec-
tive qualities, such as skill, memory, knovs^ledge, and the like. The reasons,
in these other kinds of evidence, differ in some respects, and accordingly
also the resulting rules ; but the considerations of policy and the object in
view are in general not different. A common treatment is therefore neces-
sary for the various classes of evidence which thus share in common their
subjection to this general exclusionary doctrine. Its scope is so broad that,
wherever the line is difficult to draw, it is always possible to assume the
applicability of the doctrine. On this account, the reasons that support it
deserve to be examined with especial care, in order that its true scope may
not be misunderstood.
§ 978. Same : Relevancy and Auxiliary Policy, distinguished. The exclu-
sionary doctrine in question is purely one of auxiliary policy (post, §§ 1849,
1863), *. e. it excludes certain relevant facts, when offered by outside testi-
mony, because of the objections of policy to that mode of presentation.
Furthermore, there are in some jurisdictions similar objections, of a nar-
rower scope, even to the extraction of such evidence on cross-examina-
tion. In this class of evidence, then, questions of relevancy, or logical
probative value (ante, § 42), can arise in only two ways : (1) where by excep-
tion («. g. for prior convictions of felony) the use of extrinsic testimony to the
fact is allowed ; (2) where the fact is obtained by cross-examination. The
convenient order of treatment will be to examine at the outset the underlying
principles, — first, those of Auxiliary Policy which exclude extrinsic testi-
mony to particular acts, then those of Relevancy which affect particular acts
exceptionally thus admitted, then the principles of both sorts which affect
facts admissible on cross-examination ; and, finally, to examine in detail the
state of the decisions and statutes, in the separate jurisdictions, on all of the
foregoing doctrines.
§ 979. Particular Acts of Misconduct, not provable by Extrinsic Testi-
mony. Down to the 1700s no settled principle or rule of this sort was
recognized ; the witness' character might always be attacked by the testi-
mony of others detailing the events of his past life and misconduct.^ It
must be remembered that under the orthodox rule, then prevailing, as to
proof of general character (post, § 1982), the witness could give his personal
judgment of the impeached witness' character, based on the former's acquaint-
ance and dealings with him ; it was thus an easy concession to allow the
impeaching witness to describe among his reasons such specific conduct, good
' See post, f 986, for a detailed list of the English precedents of that century.
1101
§ 979 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
or bad, as might have become known to him. For example, a sustaining
witness would say, " I have had J. S. in my employ for ten years, and he is as
honest a man as ever lived ; I have trusted him with large sums of money,
and he has never betrayed my trust "j^ while an impeaching witness would
say, " I have had many dealings with J. S., and I know him to be corrupt
and lying ; he stole a sum of money from me when he was my servant, and
he is known in the neighborhood as a false swearer and a cheat." It was
natural enough to make no discrimination in such testimony.^
But the production of such evidence by witnesses who spoke merely to
specific acts of misconduct led gradually to a canvassing of the objections
against such a mode of proof. Towards the end of the 1600s appears a ten-
dency to exclude it; and though the rule of exclusion did not become
completely settled until the end of the next century, and though there are
instances enough of its being ignored down to that time, nevertheless, it was
always treated, from the beginning of the 1700s, as a rule that might be
invoked. The reasons that were then advanced and accepted in its support
have ever since been maintained and conceded as the correct and valid ones.
These reasons, in their varying phrasings, are illustrated by the following
passages :
1696, Rookwood's Trial, 13 How. St. Tr. 209 ; Sir B. Shower (for the defendant) :
"We will call some other witnesses to Mr. Porter's [the chief witness for the Crown]
reputation and behavior; we think they will prove things as bad as an attainder." . . .
L. C. J. Holt : " You must tell us what you call them to." Sir B. Shower : " Why, then,
my lord, if robbing upon the highway, if clipping, if conversing with clippers, if fornica-
tion, if buggery, if any of these irregulai-ities will take off the credit of a man, I have
instructions in my brief of evidence of crimes of this nature and to this purpose against
Mr. Porter; and we hope that by law a prisoner standing for his life is at liberty to
give an account of the actions and behavior of the witnesses against him. I know the
objection that Mr. Attorney [-General] makes, — that a witness does not come prepared to
vindicate and give an account of every action of his life, and it is not commonly allowed
to give evidence of particular actions. But if those actions be repeated, and a man lives
in the practice of them, and this practice is continued for several years, and this be made
out by evidence, we hope that no jury that have any conscience will upon their oaths give
any credit to the evidence of a person against whom such a testimony is given." . . . Mr.
Attorney-General Trevor: "My lord, they themselves know that this sort of evidence
never was admitted in any case, nor can be, for it must tend to the overthrow of all jus-
tice and legal proceedings ; for, instead of trying the prisoner at the bar, they would try
Mr. Porter. It has been always denied, where it comes to a particular crime that a man
may be prosecuted for; and this, it seems, is not one crime or two, but so many and so
long continued, as they say, and so often practised, that here are the whole actions of a
» See the examples qMotei post, § 1982. credit. . . . But as no man is to be permitted
' The elfeot of this tradition was long in dis- to destroy a witne.ss' character without having
appearing ; but the law to-day will not allow grounds to state why he thinks him unworthy
particular acts to be given even as grounds for of belief, vou may ask him his means of knowl-
an opinion of character ; and the last sentence edge and his reasons of disbelief"). Sir J.
in the following passage is therefore not law : Stephen says (1883, Hist, of the Criminal Law,
1817, Sharp v. Scoging, Holt N. P. 541 (ques- I, 436), referring to a trial of the late 1700s :
tioii whether the witness had been tried for " Most of the witnesses . . . gave their reasons
peijiiry ; Gibbs, C. J. ; " You cannot ask them on cross-examination. This is the modern
as to particular acts of criminality or parts of practice." But this probably does not mean a
conduct, because the question is as to general practice of the sort above stated.
1102
§§ 977-996] CHAEACTER, FEOM CONDUCT. § 979
man's life to be ripped up ; which they can never show any precedent when it was per-
mitted, because a man has no opportunity to defend himself. Any man in the world
may by this means be wounded in his reputation, and crimes laid to his charge that he
never thought of, and he can have no opportunity of giving an answer to it, because he
never imagined there would be any such objection. It is killing a man in his good name
by a side-wound, against which he has no protection or defence. My lord, this must tend
to the preventing all manner of justice; it is against all common sense or reason; and it
never was offered at by any lawyer before, as I believe, — at least, never so openly; and
therefore I wonder that these gentlemen should do it, who acknowledge — at least one of
them did — that as often as it has been now offered it has been overruled; and I know
not for what end it is offered but to make a noise in the Court." . . . Sir B. Shower :
" My lord, ... we conceive, with submission, we may be admitted in this case to ofier
what we have offered. Suppose a man be a common, lewd, disorderly fellow, one that
frequently swears to falsehood for his life. We know it is a common rule in point of evi-
dence that against a witness you shall only give an account of his character at large, of
his general conversation. But that general conversation arises from particular actions ;
and if the witnesses give you an account of such disorderly actions repeated, we hope that
will go to his discredit; which is that we are now laboring for." L. C. J. Holt : "Look
ye, you may bring witnesses to give an account of the general tenor of his conversation ;
but you do not think sure that we will try now at this time whether he be guilty of
robbery or buggery."
1722, Layer's Trial, 16 id. 246, 256; Mr. Hung erf ord : " If my brief be true, the whole
Ten Commandments have been broken by him." L. C. J. Pratt : " Very weU, and so you
charge him with the breach of the Ten Commandments, and he must let it go for fact,
because he cannot have an opportunity of defending himself ! . . . [Later, forbidding a
similar ofier] you have been so often a<lmonished by the Court, but it signifies nothing.
You are charging Mrs. Mason with being a bawd, when you ought only to inquire as to
her general character. ... At this rate the most innocent persons may be branded as
the most infamous villains, and it is impossible for them to defend themselves."
1S17, R. V. Watson, 2 Stark. 149; evidence of bigamy was offered against the prose-
cuting witness ; Wetherell and Copley, for defendant, argued " that a man might be able
to prove that a witness was not to be believed upon oath, by showing that he had been
guilty of a number of criminal acts, although he could not produce a single record of
conviction ; that since it might be proved indirectly that the witness is not credible upon
oath, it was too strong a proposition to say that the same conclusion might not be proved
directly by actual proof of accumulated crimes which demonstrated the infamy of the
witness ; . . . that the consequences would be enormous and alarming to the administra-
tion of justice, if such evidence were to be shut out; a witness who had committed a
multitude of crimes, but who had not been convicted of one, would stand as a fair and
credible witness in a court of justice." Ellenborough, L. C. J. : " This is so clear a point
and so entirely without a precedent that it would be a waste of time to call for a reply.
. . . The Court does not sit for the purpose of examining into collateral crimes. It
would be unjust to permit it, for it would be impossible that the party should be ready to
exculpate himself by bringing forward evidence in answer to the charge ; there would be
no possibility of a fair and competent trial upon the subject, and therefore it is never
done." Bayley, J. : " If this evidence were admissible, it would be impossible to proceed
in the administration of justice, because on every trial the Court would have to try one
hundred different issues, and juries, instead of having one issue to try, would have their
attention withdrawn from one single point to look into an indefinite number of crimes.
The rule is that a party against whom a witness is called may examine witnesses as to
his general character, but he is not allowed to prove particular facts in order to discredit
him, . . . for although every man may be supposed to be capable of defending his gen-
eral character, he cannot come prepared to defend himself against particular charges
without notice. ... If the witness were apprised of the charges, he might come pre-
1103
§ 979 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
pared with evidence to show that, although there -vns prima facie evidence agaiust him,
they were in reality unfounded."
1847, Alderson, B.,in Attorney-Generals. Hitchcock, 1 Exch. 103: "Perhaps it ought
to be received, but for the inconvenience that would arise from the witness' being called
upon to answer particular acts of his life, which he might have been able to explain if he
had had reasonable notice to do so, and to have shown that all the acts of his life had
been perfectly correct and pure altliough other witnesses were called to prove the con-
trary. The reason why the party is obliged to take the answer of a witness is that if he
were permitted to go into it, it is only justice to allow the witness to call other evi-
dence in support of the testimony he has given, and as those witnesses might be cross-
examined as to their conduct, such a course would be productive of endless collateral
issues. Suppose for instance witness A is accused of having committed some offence;
witness B is called to prove it, when on B's cross-examination he is asked whether he has
not made some statement, to prove which witness C is called; so that it would be neces-
sary to try all those issues before one step could be obtained towards the adjudication of
the particular case before the court. On the contrary, if the answer be taken as given,
if the witness speaks falsely he may be indicted for perjury."
1817, Duncan, J., in Kimmel v. Kimmel, 3 S. & R. 336 : " Miserable indeed would be
the situation of a witness if every transaction of his life was open to inquiry. No man
could be prepared to repel every possible charge that might be made against him, or refute
the imputation of every crime that any man might be disposed to make."
1830, Henderson, C. J., in Barton v. Morphes, 2 Dev. 520 : " Two reasons are given
for the rule, either of which, I think, is sufficient to sustain it. The first is, the number
of issues such evidence is calculated to create, thei-eby consuming the time of the Court
and abstracting the mind from the main issue. The other is that both the party and
witness would almost always be wholly unprepared to meet and repel the charges."
1857, Strong, J., in People v. Jackson, 3 Park. Cr. 395 : " Generally the conduct of a
witness in matters disconnected from the subject of the trial, being irrelevant, cannot be
given in evidence. The objections to admitting such evidence are that it raises collateral
issues, and that the party against whom it may be offered would generally be taken by
surprise and not be prepared to meet it. It is very desirable that the inquiries upon a trial
should be confined to the issues actually joined between the parties. They attend to try
those only ; the attention of the jury is or should be exclusively directed to them, and not
diverted to other and irrelevant matters which have a tendency to confuse their minds, and
an investigation into collateral matters would protract issues into inconvenient and intol-
erable length. . . . There can be no doubt but that, in ordinary cases, an inquiry,
addressed to any but the assailed witness, as to any particular act derogatory to his char-
acter or as to any specific blemish in his reputation, should be excluded. . . . [However, a
fact derogatory to a witness' character] may be proved provided it does not raise or tender
a collateral issue. ... A witness may be asked if he has not perpetrated some offence,
or been guilty of some moral obliquity, which would if true impair the weight of his evi-
dence. . . . That would not, however, raise any issue for trial, as, whatsoever his answer
might be, the party asking the question could not controvert it."
1896, Lewis, J., in Oxier v. U. S., 1 Ind. T. 8^, 38 S. W. 331 : " There is a clear dis-
tinction, recognized by the authorities cited above, between impeaching a witness by
proof of facts which discredit him, made independently of his examination, and by proof
of the same facts elicited in his cross-examination. Proof of particular facts tending to
impair his credibility, made independently of his own examination, is excluded for tlie
reason that its admission would engender a multiplicity of collateral issues, and would
frequently surprise a witness with matter which he could not be prepared to disprove. But
these reasons do not apply to his cross-examination as to the same facts, because the wit-
ness, better than any one else, can explain the impeaching matter, and protect himself to
the extent that explanation will protect him ; the cross-examining party being bound by
his replies."
1104
§§ 977-996] CHARACTER, FROM CONDUCT. § 979
(1) These reasons of auxiliary policy are, upon analysis, reducible to two.
(a) The reason of Confusion of Issues {post, §§ 1863, 1904). This involves
several considerations usually operating together and attending the produc-
tion of additional testimony upon minor points. There are two chief consid-
erations ; first, each additional witness introduces the entire group of questions
as to his qualifications and his impeachment, and the amount of new evidence
thus made possible may increase in far greater than geometrical proportion to
the number of new witnesses, so that the trial may become in length ex-
tremely protracted, and with relatively little profit ; secondly, this additional
mass of testimony on minor points tends to overwhelm the material issues
of the case and to confuse the tribunal in its efforts to disentangle the truth
upon those material points. (&) The reason of Unfair Surprise {post, §§ 1845,
1849). Surprise, in itself, is ordinarily no ground of objection to any kind of
evidence. But the novelty of evidence may become unfair when there is no
possible way of anticipating the nature of false evidence which could be re-
futed. This unfairness here lies in the fact that the opponent who desired
by other witnesses to impeach by particular instances of misconduct might
allege them as of any time and place that he pleased, and that, in spite of the
utter falsity of the allegations, it would be practically impossible for the
witness to have ready at the trial competent persons who would demonstrate
the falsity of allegations that might range over the whole scope of his Mfe,
For example, the witness may have lived in three towns, Millville, Eiverside,
and Sierra Madre ; in order to be perfectly prepared it would be necessary
for him to come to trial with persons who had known him at every stage of
his life in all three towns and could instantly prove the falsity of charges of
any kind of misconduct, which might be alleged as of any time and place, —
conduct, events, times, and places, entirely impossible to divine beforehand,
because known only to the opposing false witness himself ; indeed, this body
of witnesses would perhaps have to come, in strictness, from every known
habitable part of the globe, because the opponent might falsely place the
misconduct in Kamschatka, and it would then be desirable to show that the
witness had never even been in Kamschatka. This possibihty of unfair sur-
prise makes it necessary to concede the propriety of the rule based upon it.
(2) It must be noticed that a judicial opinion sometimes misleadingly states
the latter reason in this form, that the witness " cannot be expected to come
prepared to defend every act of his past life," i. e. it implies that the charges
are true, though not to be anticipated. Now on this assumption, obviously,
there would be no reason for excluding the impeaching testimony ; for, if the
charges were true, there would be nothing more to be said, and all the defen-
sive testimony conceivable could not alter this fact and would therefore be
useless. But, on the contrary, the real notion behind the reason is that the
charges are false, and that there is no practicable way of showing their falsity.
Instead of the form, " A witness cannot be expected to be prepared to defend
every act of his life," the accurate statement is, " A witness cannot be expected
to be prepared to disprove every alleged act of his life."
1105
§ 979 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
(3) From the reasons unanimously conceded as the rule's foundation, it is
plain that no consideration of Eelevancy is the source of the exclusion. The
reasons are solely of Auxiliary Policy {ante, § 42), Questions of Eelevancy
do not arise, in so far as the reasons of Auxiliary Policy exclude the offered
facts at the very threshold.*
(4) When these reasons cease, the rule ceases. If there are situations in
which the above reasons have no force, then the prohibition ceases to apply.
There are two such situations : (1) Proof of a Particular Crime, by Eecord
of Conviction, and (2) Proof of Particular Instances of Misconduct in general,
by Cross-examination of the witness himself. These have now to be consid-
ered, in so far as they are further limited by principles of Eelevancy.
§ 980. Record of Judgment of Conviction for Crime. (1) When the ex-
trinsic testimony is in the shape of a record of a judgment of conviction for
crime, both the above reasons cease to operate, (a) There is no risk of Con-
fusion of Issues, first, because the number of acts of misconduct provable in
this way is practically small, and, next, because the judgment cannot be re-
opened and no new issues (other than the occasional ones occurring in the
process of authentication of the record) are raised thereby ; (6) there is no
danger of Unfair Surprise — not, however, because (as is sometimes said) the
witness well knows whether he was ever convicted ; this assumes the very
thing in controversy, namely, that he is guilty ; but because the judgment is
conclusive and cannot be attacked, and therefore the witness could not use
his supporting witnesses to prove his innocence, even if he had them in court.^
It has therefore been universally acknowledged that proof of a crime by record
of a judgment of conviction may be made, not because an exception is carved
out of the rule, but because the reason of the rule does not apply :
1857, Strong, J., in People v. Jackson, 3 Park. Cr. 396 : " [Conduct derogatory to the
witness' character] may be proved provided it does not raise or tender a collateral issue.
Thus, it may be proved that a proposed witness has been convicted of an infamous
ofienoe, by producing the record. That raises no collateral issue of fact, as the record is
conclusive, and there can be no further inquiry. But it is not competent to prove that
the witness has in fact committed a crime, if he has not been convicted, although the
actual perpetration of the crime is what renders him unworthy of belief. That, if
permitted, might raise a collateral issue for trial."
(2) The reasons of Auxiliary Policy not barring out such evidence, the
question of Eelevancy may properly be raised. What crimes are relevant to
indicate bad character as to credibility ? There are here three answers pos-
sible on principle, (a) Whatever offences were formerly treated as disquali-
fying one entirely as a witness {ante, § 520) shall now be treated as available
* 1838, Cowen, J., in People v. Sector, 19 appealed to, and received as conclusive if in his
Weud. 569, 586 ("Counsel misconceive the favor").
reason for the cases going against an inquiry to * Some courts go so far, to be sure, as to
[particular] facts. It is not because they do not allow the witness himself to allege and explain
impeach character, but because the inquiry in a his innocence ; but in general even this much of
partieular form might unjustly ruin the char- an issue is not allowed to be made ; see post,
aeter of any witness past redemption. The evil § 1116, under Rehabilitation of Witnesses,
is held not to exist when his own account is
1106
§§ 977-996] CHARACTER, FROM CONDUCT. § 980
for impeachment. This is the commonest solution, and has come about
usually by express proviso in the statutory abolition of the former disqualifi-
cation. (&) If in a given jurisdiction general bad character is allowable for
impeachment {ante, § 923), then any offence will serve to indicate such bad
character, (c) If character for veracity only is allowable for impeachment
(ante, § 923), then only such specific offences may be used as indicate a lack
of veracity-character. The following passages illustrate this long-standing
difference of views :
1880, Scroggs, L. C. J., in Lord Casilemaine' s Trial, 7 How. St. Tr. 1067, 1084 : " You
may give ia the evidence of every record of the conviction of any sort of crimes he has
been guilty of, and they shall be read. They said last day there were sixteen ; if there
were a hundred, they should be read against him, and they shall go all to invalidate any
credit that is to be given to anything he may swear."
1699, Holt, L. C. J., in R. v. Warden of the Fleet, 12 Mod. 337, 341: " In respect to a
person who had been burnt in the hand, if it were for manslaughter, and afterwards par-
doned, it were no objection to his credit ; for it was an accident which did not denote an
ill habit of mind ; but sect*,'! if it were for stealing, for that would be a great objection
to his credit, even after pardon." ^
(3) A pardon does not remove the admissibility of the original judgment
for purposes of impeachment; for (unless otherwise expressly declared
therein) a pardon does not imply a finding of the innocence of the person
convicted :
1695, Mr. Wilmington (arguing) in Crosby's Trial, 12 How. St. Tr. 1296 : " Thougl
the offence was taken away by the pardon, yet the credit of the party must be dirainishei
thereby, and no pardon nor oblivion can so far take away the consequences of a crime
(though it may pardon the punishment) as to make a man a new creature ; as long as the
old lump and the presumption of the old malicious spirit still remains."
1870, Doe, J., in Curtis v. Cochran, 50 N. H. 242 : "A pardon is not presumed to be
granted on the ground of innocence or total reformation. It i-emoves the disability, but
does not change the common-law principle that the conviction of an infamous offence
is evidence of bad character for truth. The general character of a person for truth, bad
enough to destroy his competency as a witness, must be bad enough to affect his credi-
bility when his competency is restored by the executive or legislative branch of the
government." °
(4) A judgment of conviction in another jurisdiction ought equally to be
admissible ; for it equally evidences guilt of the crime, and the crime is the
discrediting fact, wherever it may have been committed.*
(5) On cross-examination of the witness to be impeached, may not the judg-
ment of conviction be inquired about and answered orally instead of producing
a copy of the record of the judgment ? This involves a different principle,
namely, the mode of evidencing the contents of the judicial record. At
common law, it was generally held that a written copy, and not oral recollec-
' The extent to which these different rules same question arising for convictions disquali-
prevail may be seen in examining the state of fying a witness (ante, § 523).
the law in the various jurisdictions (post, § 987). * The authorities are collected under the
' The authorities are collected under the vari- various jurisdictions, pos<, § 987. Compare the
ous jurisdictions (post, § 987). Compare the same question arising for a conviction disquali-
fying a witness (ante, § 522).
1107
§ 980 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
tion, was the only proper mode ; but this has almost everywhere been altered
by statute.^
(6) An arrest or indictment stands of course on a wholly different footing
from a judgment of conviction.*
§ 981. Cross-Examination not Forbidden. The reasons already examined
(ante, § 979) appear plainly to have no effect in forbidding the extraction of
the facts of misconduct from the witness himself upon cross-examination,
(a) There is no danger of Confusion of Issues, because the matter stops with
question and answer ; (b) There is no danger of Unfair Surprise, because the
impeached witness is not obliged to be ready with other witnesses to answer
the extrinsic testimony of the opponent, for there is none to be answered,
and because, so far as the witness himself is concerned, he may not un-
fairly be expected to be ready to know and to answer as to his own deeds.^
Tlius, neither of the reasons has any application, and hence, so far as they
are concerned, the opponent is at liberty to bring out the desired facts by
cross-examination and answer of the witness himself to be impeached.
One or two not uncommon inaccuracies in expressing this result must be
noticed. (1) It is sometimes said that the above objection of Confusion of
Issues is obviated because the witness' answer, if in the negative, " must be
taken for true," or "is conclusive in his favor." This is obviously not correct.
The jury is not obliged to take any witness' word as true ; and they may or
may not choose to believe this witness on this point. All that can be said,
and all that is meant, is that the opponent cannot proceed to prove the
alleged fact by extrinsic testimony, and that, if he chooses to ask for testi-
mony on this point from the witness himself, he must accept the chances of
the jury believing a negative answer.
(2) It is sometimes said that a witness cannot he contradicted {i. e. shown
to be in error) on facts affecting his character, because they are collateral.
This is merely a confusion of the present rule with the rule forbidding a
Contradiction on Collateral Matters {post, § 1003). This fact, to be sure, hap-
pens to be a collateral one, and therefore a contradiction on this point would
not be allowable by that rule ; but it simply confuses separate principles, hav-
ing a separate purpose and history, to invoke that rule in the present case.
That it has no essential bearing can easily be demonstrated. Suppose that
rule (forbidding Contradiction on Collateral Matters) were abolished; it
would still be unlawful to impeach a witness' character by extrinsic testimony
of particular misconduct, for the reasons already explained, which would
still be in force. Again, suppose that the witness is not asked beforehand
^ The authorities are collected under the ap- reasons of unfair surprise and confusion of is-
propriate principle, post, § 1270. sues : "These reasons are not controlling when
Post, § 982. the inquiry is made of the witness [himself] as
For the question whether a witness' self-con- to his own acts or offences, which he may well
fessed crime, viithoat A conviction Sot it, disqyMli- be supposed able to explain at anytime, and
Jies him, on the principle of nemo turpitudinem when his answers are conclusive and preclude
suam, see ante, § 526. further inquiry, as is the case as to all collateral
^ See the passage quoted ante, § 979 ; and the matters affecting his general credit, so that side
following: 1862, Allen, J., in Newcomb v. issues cannot be made to embarrass the trial of
Griswold, 24 N. Y. 299 (after mentioning the he principal issue ").
1108
§§ 977-996] CHAEACTER, FEOM CONDUCT. § 982
whether he did this act, so that the proof of it by extrinsic testimony does
not involve a contradiction of him and is therefore not obnoxious to that
rule ; nevertheless, the testimony would be excluded, because it is extrinsic
testimony of particular misconduct impeaching character. Historically, the
rule forbidding impeachment of character by extrinsic testimony of particular
misconduct existed a century before the rule forbidding contradiction on col-
lateral matters was settled ; so that in tradition as well as in principle they
are entirely independent. It is thus clear that the invocation of the latter
rule in the present connection is not only unsound but useless. Moreover, it
is misleading. The confusion is apparent in some of the nisi prius rulings
of the present century {fost,^ 1005), when the rule as to Contradiction was
in the process of settlement; but there is no longer any excuse for the
perpetuation of the confusion.^
§ 982. Same : Relevancy of Acts, on Cross-examination ; Kinds of Mis-
conduct ; Arrest and Indictment. Since the reasons of Confusion of Issues and
of Unfair Surprise do not operate to forbid cross-examination, questions of
Eelevancy immediately arise. Kow there is no doubt that conduct is rele-
vant to indicate character (ante, § 193). An assault is relevant to indicate
a violent character; a fraud is relevant to indicate a dishonest character.
This is conceded with reference to proof of a defendant's character from his
acts ; it is universally accepted with reference to a witness' character :
1853, vCommon Law Practice Commission (Jevvis, Cookburn, Martin, Walton, Brarawell,
and Willes), Second Report, 21 : " Another test of the veracity of the witness is to be
found in his general character. If he has been guilty of offences which imply turpitude
and want of probity, and more especia.lly absence of veracity — as, for instance, perjury,
forgery, obtaining money or goods under false pretences, and the like — , there can be no
doubt that this is matter very proper to be taken into consideration in forming a due
estimate of the value of his evidence, particularly if such evidence should be in conflict
with that of another witness of unquestioned integrity."
1874, Cockburn, C. J., in E. v. Castro (Tichborne), Charge to the Jury, II, 720, 722 :
"LordB. has committed a wofuUy sad sin; . . . another man's wife left her husband
and joined him, and they have lived together; . . . [Counsel] asks you deliberately to
come to the conclusion that because of this offence Lord B. is not to be believed upon his
oath, — nay, more, that you must assume him to be perjured. Is that, do you think, a
view that you can properly adopt ? Is it because a man has committed a breach of
morality, however flagrant, that those to whom his testimony may be important in a court
of justice are to be deprived of it ? . . . There are crimes and offences which savor so
much of falsehood and fraud that they do go legitimately to the credit of witnesses. There
are offences of a different character, and grievous offences if you will, but which do not
touch that particular part of a man's moral organization — ^ if I may use the phrase —
which involves truth ; and there is an essential distinction between this species of fault
and those things which go to the very root of honesty, integrity, and truth, and so do
unfortunately disentitle witnesses to belief."
But in determining the limitations of Relevancy, two distinct attitudes are
found on the part of the Courts. (1) One is that any kind of misconduct,
' For a further examination of the matter, in connection with the treatment of that rule, see
post, § 1005.
1109
§ 982 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
as indicating bad general character, is admissible ; thus, a robbery or an as-
sault or an adultery may be used, although none of these directly indicates an
impairment of the trait of veracity. This is conceded even by many Courts
which, when admitting character in the abstract, confine it to the quality of
veracity (ante, § 922). In such Courts, the use of these facts can have no
justification whatever. In those Courts, however, which allow the use of gen-
eral bad character {ante, § 923) there is an apparent logical propriety ; yet
it is apparent only, for a robbery or a seduction may show a lack respectively
of peaceableness or of chastity, but may not show that totally abandoned
disposition which is understood to be involved in general bad character.
(2) The other attitude is entirely logical, and admits only such misconduct
as indicates a lack of veracity, — fraud, forgery, perjury, and the like. A
minority of Courts are inclined to observe this limitation, — at least now and
then.
(3) In Courts adopting either of the above attitudes, attention is some-
times given to distinguish misconduct itself from a mere accusation of mis-
conduct. Where this is done, it follows that a mere arrest or indictment will
not be allowed to be inquired after ; since the fact of arrest or indictment is
quite consistent with innocence, and since the reception of such evidence is
merely the reception of somebody's hearsay assertion as to the witness' guilt.
To admit this would involve a violation both of the Hearsay rule and of
the rule forbidding extrinsic testimony of misconduct. The only possible
ground for allowing the extraction of such facts is that the merely having
been arrested or charged is a disgraceful situation which indicates something
lacking in the witness' respectability of character. Such a notion is quite
consonant with social ideas in England, at least in a former generation ; ^ ac-
cordingly we find the fact of arrest on indictment is there treated (and
indeed assumed without question) as relevant, in the rulings of the early
1800s. But this notion has no sound justification, and it carries the injustice
of subjecting the witness to siispicion without giving him an opportunity to
clear it away. It should be understood by all Courts that the only relevant
circumstance is actual conduct — i.e. the fact, not the charge, of having
misbehaved. If it is improper to prove this by extrinsic testimony on the
stand, it is doubly improper to attempt to prove it by hearsay, and trebly
improper when accompanied by a prohibition of any rebuttal of the hearsay
by the witness or by others on his behalf : ^
1898, Doster, C. J., in State v. Greenburg, 59 Kan. 404, 53 Pao. 61 : " An arrest is
nothing more than an accusation of crime or other act of turpitude. That it is made in
^ This was accepted by one oftlie most liberal * A. judgment of conviction is of course on a
thiakei'sof histime; LifeofSirS. Komilly,3ded., different footing from an arrest or indictment :
II, 85 {1808 ; " to have been tried is, in general, ante, § 980.
alone sufficient to destroy a man's character ; . . . Distinguish proof of an indictment (by cross-
that a man comes out of jail is a fact which is examination or extrinsic testimony) as evidence
plain and notorious "). See also (in Campbell's of bias or interest for or against one of the parties :
Life, 11, 83) the Letter of Lord Melbourne to ante, §§ 949, 967.
Mr. Attorney-General Campbell, June 19, 1836,
relating to Melbourne's trial for erim. con.
1110 '
§§ 977-996] CHARACTER, FROM CONDUCT. § 983
the form of a forcible restraint of the person, based upon a sworn complaint, makes it,
for purposes of disgrace or discredit, no stronger evidence of the truth of the accusation
than an oral statement by the accuser would be. No one would contend that a witness
could be asked whether another person had not orally accused him of crime. Why should
the rule be different when the accusation has been written out and sworn to ? It is but
an accusation in each case. Why should it be different when the sworn accusation is
followed by an arrest ? The arrest is but a reassertion of the accusation in another form.
It is quite different, however, when the accusation has been proved. When the proceed-
ing has passed from accusation to conviction, evidence of the turpitude of the witness
exists, — not what somebody said of him, but what the judicial tribunals sitting in judg-
ment upon the accusation have found against him."
Such are the questions of Eelevancy that arise in asking on cross-examina-
tion for particular acts of misconduct.
(4) It must be added that some of the Courts that adopt the rule of dis-
cretion (described in the next section) virtually thereby ignore all questions
of Eelevancy. In leaving the whole scope of cross-examination on this sub-
ject to the discretion of the trial Court, they in effect leave it to rule as it
pleases upon Eelevancy, or to ignore Eelevancy entirely. This may not be
their clear intention, but it is the apparent result. Occasionally, however,
a Court is found ^ insisting that while the trial Court's discretion is to con-
trol upon the considerations of fairness and policy, yet that discretion will
not be allowed to admit a fact (for example, an arrest) which is clearly
irrelevant.
§ 983. Same : Relevant Questions excluded on grounds of Policy ; Three
Types of Role ; Cross-examination of an Accused Party. Suppose that the
questions on cross-examination deal with acts of misconduct that are relevant
(by whichever of the above tests) to indicate bad character ; may there be
any other objection to them on the score of Auxiliary Policy ? Most Courts
recognize that the allowance of a course of examination into particular mis-
conduct places in the hands of cross-examining counsel an instrument which
he may use not wisely but too well. Among the many circumstances that
contribute to form that general complex of impressions which we choose to
call a verdict upon the issue, experience shows that the moral obliquity of a
witness tends abundantly to smirch the cause for which he testifies. Too
many counsel give to this canon of experience so much weight that they
devote themselves excessively (and sometimes with no great profit to their
cause) to this process of besmirching the opposing witnesses. With unscrupu-
lous counsel, the traditional direction (in paraphrased form) is observed,
" No case ; abuse the opponent's witnesses." It is possibly not the most im-
portant duty of the counsel to remember that (in the words of a considerate
Court 1) " witnesses have rights as well as parties ; it is too often the case
that they are set up as marks to be shot at." But it certainly is the duty of
the law and of the judges to see that due regard is paid to these rights, and
that the witness-box does not unnecessarily become, in the words of an old
* As in some of the New York rulings.
* 1860, Rogers, J,, in Morss v. Palmer, 16 Pa. 66.
1111
§ 983 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
Southern judge, " the slaughterhouse of reputations." There are two suffi-
cient reasons for such restriction :
The first reason, to be sure, is a purely emotional one. The ordinary-
instincts of decency, not to say courtesy, are violated by such examinations,
and every new instance makes us more sodden to the spectacle and tends to
bring us towards the same level of degradation. It is the difference between
the hunt and the slaughterhouse. One may well enough find sport in stalk-
ing the lion in the desert or beating the bush for the tiger, because there is
a risk for the hunter which dignifies his sport, and there is a rapacity and
a destructiveness in the hunted which leaves no room for sympathy ; but the
process of cutting the throat or knocking the head of a sheep or an ox
penned in the shambles is both safe and brutal, and is to be justified only
on the ground of its absolute necessity. The hunting down of a fleeing des-
perado, or the ensnaring of a chief of counterfeiters by the craft of detectives,
is a process which does not violate instincts of fairness or principles of
justice. But the ruthless flaying of personal character in the witness-box is not
only cowardly — because there is no escape for the victim — and brutal —
because it inflicts the pain of public exposure of misdeeds to idle bystanders — ,
but it has often not the slightest justification of necessity. Severe hmits
must be put to such conduct. As Lord Ellenborough said, " I will put it
to your own feelings, your own good sense." Some weight must be allowed
to the instincts of manly fairness and good sense.
The second reason is a politic one, i. e. that, with the prospect of such an
examination as a possibility, the public is certain to dread the witness-box.
From time to time those whose knowledge would have been valuable will
seek to evade disclosing it ; the ascertainment of the truth will be hampered
and perhaps prevented. That such a feeling exists to-day, in a greater or
less degree, can hardly be doubted.
These reasons seem to demand some limitation for the scope of examina-
tion. The Courts are found taking three difi'erent attitudes :
(1) By one extreme type of rule, no limitations at all are put upon the
examination from the present point of view. Whatever is relevant to char-
acter may be asked about. This was the orthodox rule ; but it is to-day
rarely found, except in England. It is exemplified and defended in the fol-
lowing passages :
1831, Mr. Daniel OConnell, cross-examining a witness for the prosecution; the witness
was a police-constable, and the charge was murder during a riot: " Have you a brother
in the police?" "I have." . . . " You had an uncle in the police?" "I have not."
" I said you Aar/ an uncle in the police ? " " I had." " What is become of him ? " "He
is transported." " To Botany Bay?" " I dare say." " Can you even guess where he
went to? " " I cannot." " By virtue of your oath, can you guess where your own dear
uncle tlie policeman went to? " "I cannot." " You swear to that ? Have you not sworn
that you cannot guess ? " "I can guess." " Now where do you guess he was transported
to ? " "I cannot tell what part he was transported to." " Where did you grow ? " " In
the Queen's County." " Are you anything to those Harveys that they said had a cave for
stolen sheep?" "Yes." " What relation are you to the sheep-stealers ? " "Brother."
1112
§§ 977-996] CHAEACTER, FEOM CONDUCT. § 983
" Was it not in your own house that the stolen mutton was found ? " " No." " Was it
in your father's house that the key was found, that made them suspect it was in your
father's house ? " " I believe it was." " Was it for his good behavior that your uncle was
transported ? " "I cannot say." " For heaven's sake, who got your family into the
police V" "A gentleman." "Has he a name?" "Yes." "What is his name?"
"Mr. Steele. There were George and William Steele." "Where do they live?" "I
cannot say."
1S73, R. V. Castro (TicUorne), 32d day, Kenealy's ed., I, 396: Lord B., who had
testified to the tattoo-marks on Roger Tichborne, was cross-examined : Dr. Kenealy, for
defendant : " Did you play a practical joke [on Captain H.] ?" . . . L. C. J. Cockhurn:
"It may be a practical joke of such a nature that the jury would disbelieve the evidence
on his oath, on its being made known to them. We must leave that to the discretion of
Dr. Kenealy." . . . Dr. Kenealy : "It was not a practical joke. Did you take away his
wife?" Lord B. .• "I cannot answer that question." . . . Dr. Kenealy: "Did you
seduce his wife and make her elope from her husband? ... I am sorry to have to ask
my lord to tell you you must answer it." L. C. J. Cockburn: " I certainly shall not."
Dr. Kenealy: "Indeed you must, my lord ! It goes to the witness' credit. T mast have
it answered, my lord." . . . L. C. J. Cockburn: "I am afraid, if the question is pressed,
you [the witness] must answer it. It is one of the consequences of being brought into a
court of justice as a witness that whatever he has done may be brought up against him."
1873, Blackburn, J., in Stocksy. Ellin, L. R. 8 Q. B. 454, 4.i7 (excluding cross-interroga-
tories, to a deponent in America, as to his desertion of his family and elopement with
another man's wife): " It is clearly laid down that questions going to the credit of a wit-
ness, the answers to which will reasonably lead the tribunal to say, ' When the witness has
admitted these facts, we distrust his testimony,' may be asked of him. The limit to this
kind of questioning is in practice that the presiding judge appeals, ad verecundiam, to
the counsel to regard the pain caused to the witness and not to annoy him unnecessarily.
And that prevents any great abuse of the freedom of cross-examination. ... I do not
think we can positively say that these interrogatories would be inadmissible questions,
because the answers thereto would go more or less to the credit of the witness. . . . [But
for interrogatories in a proposed deposition] the Court has power to exercise control over
the matter and to see that no interrogatories shall be asked which the Court at the trial
might refuse to allow to be put to the witness."
1883, Sir James Stephen, History of the Criminal Law, I, 433 : " The most difficult
point as to cross-examination is the question how far a witness may be cross-examined
to his credit by being asked about transactions irrelevant to the matter at issue, except
so far as they tend to show that the witness is not to be believed upon his oath. No
doubt such questions may be oppressive and odious. They may constitute a means of
gratifying personal malice of the basest kind, and of deterring witnesses from coming
forward to discharge a duty to the public. At the same time it is impossible to devise
any rule for restricting the latitude which at present exists upon the subject, without
doing cruel injustice. I have frequently known cases in which evidence of decisive im-
portance was procured by asking people of apparent respectability questions which, when
first put, appeared to be offensive and insulting in the highest degree. I remember a
case in which a solicitor's clerk was indicted for embezzlement. His defence was that
his employer had brought a false charge against him to conceal (I think) forgery com-
mitted by himself. The employer seemed so respectable and the prisoner so discredit-
able that the prisoner's counsel returned his brief rather than ask the questions suggested
by his client. The prisoner thereupon asked the questions himself, and in a very few
minutes satisfied every person in court that what he had suggested was true. ... It is
also to be remembered that cross-examination to credit may be conducted in very different
ways. It is one thing to throw an insulting question coarsely and roughly in the face of
a witness. It is quite another thing to follow up a point by questions justified by the
circumstances. . . . The most difficult cases of all are those in which the imputation is
1113
§ 983 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
well founded, but is so slightly connected with the matter in issue that its truth ought
not to affect the credibility of the witness in reference to the matter on which he testifies.
The fact that a woman had an illegitimate child at eighteen is hardly a reason for not
believing her at forty, when she swears that she locked up her house safely when she
went to bed at night, and found the kitchen window broken open and her husband s
boots gone when she got up in the morning. Cases, however, may be imagined in which
a real connection may be traced between acts of profligacy and a man's credibility on
matters in no apparent way connected with them. Seduction and adultery usually
involve as gross a breach of faith as perjury, and if a man claimed credit on any subject
of importance, the fact that he had been convicted of perjury would tend to discredit
him. No general rule can be laid down in matters of this sort. All that can be said is
that whilst the power of cross-examining to a witness's credit is essential to the adminis-
tration of justice, it is of the highest importance that both judges and counsel should bear
in mind the abuse to which it is liable, and should do their best not to ask, or permit to
be asked, questions conveying reproaches upon character, except in cases in which there
is a reasonable ground to believe that they are necessary." ^
(2) By the rule obtaining in most jurisdictions of tbe United States, the
repression of possible abuses is left in the discretion of the trial judge ; ques-
tions upon facts relevant to character may still be forbidden by him where
he believes that under the circumstances it is unnecessary and undesirable.
The grounds for this restriction have never been more correctly or more
eloquently set forth than in the following noteworthy opinion:
1865, Porter, J., in Third Great Western Turnpike Co. v. Loomis, 32 N. Y. 127, 132
(the trial Court had excluded, as immaterial to the main issue, questions attacking the
witness' character, no privilege having been claimed ; the question of law was whether
this could be done " in the sound discretion " of that Court ; on intermediate appeal the
answer was negative, but the trial Court's ruling was on further appeal sustained): " If
the judgment of the Court below be upheld by the sanction of this tribunal, it will em-
body in our system of jurisprudence a rule fraught with infinite mischief. It will subject
every witness who, in obedience to the mandate of the law, enters a court of justice to
testify on an issue in which he has no concern, to irresponsible accusation and inquisition
in respect to every transaction of his life affecting his honor as a man or his character as
a citizen. It has heretofore been understood that the range of irrelevant inquiry for the
purpose of degrading a witness was subject to the control of the presiding judge, who was
bound to permit such inquiry when it seemed to him in the exercise of a sound discretion
that it would promote the ends of justice, and to exclude it when it seemed unjust to the
witness and uncalled for by the circumstances of the case. The judgment now under
review was rendered on the assumption that it is the absolute legal right of a litigant to
assail the character of- every adverse witness, to subject him to degrading inquiries, to
make inquisition into his life, and drive him to take shelter under his privilege or to self-
vindication from unworthy imputations wholly foreign to the issue on which he is called
to testify. The practical effect of such a rule would be to make every witness dependent
on the forbearance of adverse counsel for that protection from personal indignity which
has been hitherto secui-ed from our courts, unless the circumstances of the particular case
made collateral inquiries inappropriate. This rule . . . would perhaps operate most
oppressively in trials before inferior magistrates, where the parties appear in person, or
are represented by those who are free from a sense of personal responsibility. . . . The
practice which has heretofore prevailed in this respect has been satisfactory to the com-
" Compare also the same author's reports on burn's article, cited posi, § 986; and Mr. Evans'
the Revised Indian Code, quoted in Syed AH and Notes to Pothier, II, 223.
Woodruirs Evidence, 1898, p. 1027; Lord Cock-
1114
§§ 977-996] CHARACTER, FROM CONDUCT. § 983
niunity, the bench, and the bar. Questions of this nature can be determined nowhere
more safely or more justly than in the tribunal before which the examination is con-
ducted. Justice to the witness demands that the Court to which he appeals for present
protection shall have the power to shield him from indignity, unless the circumstances
are such that he cannot fairly invoke that protection. . . . [The opposite view] ignores
the indignity of a degrading imputation when there is nothing in the circumstances of
the case to justify it. It ignores, too, the humiliation of public arraignment by an irre- /
sponsible accuser, misled by an angry client, and shielded by professional privilege. Few '
men of character or women of honor could suppress, even on the witness-stand, the spirit
of just resentment which such an examination, on points alien to the case, would natu-
rally tend to arouse. The indignation with which sudden and unworthy imputations are
repelled often leads to injurious misconstruction. A question which it is alike degrading
to answer or to decline to answer should never be put, unless in the judgment of the
Court it is likely to promote the ends of justice. A rule which would license indis-
criminate assaults on private character, under the forms of law, would contribute little to
the development of truth and still less to the furtherance of justice. . . . Unless there be
a plain abuse of discretion, decisions of this nature are not subject to review on appeal."
The discretion here predicated limits the process of probing even into mis-
conduct strictly relevant to veracity-character. But this rule of discretion
may conceivably cover both the relevancy of such misconduct and the policy
of its use though relevant ; or it may cover only the former 'subject, and in
effect not the latter, or vice versa (i. e. the trial Court's discretion will be
accepted either as to the relevancy, or as to the policy, but not as to both).
Courts do not always carefully state which of these three ranges they intend
to allow to the discretion of the trial Court ; they usually predicate the dis-
cretion, without discriminating between relevancy and policy. The following
passages illustrate the various types of modern opinion which lay down this
rule:
1896, Bantz, J., in Territory y. Chavez, 8 N. M. 528, 45 Pac. 1107: "The extent to
which cross-examination will be permitted is no doubt, in a large measure, in the discre-
tion of the trial Court ; and it is difficult to draw the line as to where the legal discretion
as to the admission or the exclusion of such testimony commences, and where it ends.
The truth is the thing to be sought. Assaults upon a witness by cross-examination into
collateral matters cannot be allowed to gratify the caprice or the displeasure of those
against whom he testifies ; and intrusions into private affairs, which are calculated merely
to wound the feelings, humiliate, or embarrass the witness, will not be permitted. . . .
But a clear distinction is to be taken between those matters called for on cross-examina-
tion which merely excite prejudice against the witness, or tend to humiliate him or wound
his feelings, and those matters, on the other hand, which are calculated, in an important
and material respect, to influence the credit to be given to his testimony. As to the
latter class, the witness cannot be shielded from disclosing his own character on cross-
examination, and for this purpose he may be interrogated upon specific acts and transac-
tions of his past life ; and if they are not too remote in time, and clearly relate to the
credit of the witness, in an important and material respect, it would be error to exclude
them. How far justice may require such examinations to go, how much time should be
spent upon them, what should be excluded for remoteness of time, and what for being
trivial or unimportant, must depend in some measure upon the circumstances of each
case; and these are questions addressed primarily to the discretion of the trial Court;
but the discretion should be liberally exercised."
1899, Hooker, J., in People v. McArron, 121 Mich. 1, 79 N. W. 944 : " Counsel com-
plain that they were not permitted to show, by the cross-examination of M. C, that she
VOL. 11.-8 1115
§ 983 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
was a woman of low character and habits, and that they had a right to interrogate the
daughter in relation to her father and mother. This cross-examination was merciless ;
and it is impossible to read it without regretting that the exigencies of modern trials
may be thought to justify such, and wondering that counsel cannot see that they are
fraught with more danger to the accused than possible benefit. Witnesses have rights as
well as the accused; and, while the Courts allow an investigation of the character of a
witness through cross-examination, there is a broad discretion lodged in the trial Court
in such matters."
1899, Marshall, J., in Buel v. Slate, 104 Wis. 132, 80 N. W. 78 (excluding questions to
a defendant charged with murder of one Nelson, as to killing another man in Nebraska,
burning a house to get the insurance-money, etc.) : " There is no rule by which the
exercise of that discretionary power of the Court can be guarded with exactness. The
range is necessarily broad in order to fit the facts of particular cases, but there is a limit
beyond which it cannot go. That limit is clearly reached and passed when questions are
asked, manifestly, for the mere purpose of creating prejudice in the minds of the jurors,
or the examination is carried on to such an extent and in such a manner as to become
oppressive, and is not warranted by anything in the case. Questions as to previous con-
victions of criminal offences, or serving terms in prison or in jail from which convictions
will be presumed, are uniformly permitted when the instances are not too remote, upon
the theory that a person of that character will not be as likely to testify truthfully as a
man whose life has not been thus blackened. . . . Questions relating to mere criminal
charges, or acts which might be the foundation for criminal prosecutions, are usually
rejected. They should not be permitted unless there are circumstances in the case sug-
gesting that justice will or may be promoted thereby. It would be a clear abuse of
judicial discretion to permit such questions where the indications are plain that the pur-
pose is not to bring out the truth in regard to the witness' life and character, and to
thereby discredit his testimony, but for the purpose of discrediting the witness, regardless
of whether there is any warrant for the questions or not, and if he be a party, in that
way to influence the minds of the jurors into a verdict against him. ... A reading of
the questions under consideration leads to the irresistible conclusion that no idea was
entertained by the cross-examiner that proof would be elicited of the matters implied by
them. We say ' implied ' because the asking of the direct questions, in the manner in
which they were asked, implied to some degree that the examiner was possessed of
information upon which the questions were based, and although the answers were in the
negative, the bad effect of the insinuations thrown out by the questions, was not and
could not have been removed entirely from the minds of the jurors.' . . . The trouble
here is that the cross-examination was allowed to be carried on manifestly without any
reason except to create prejudice against the accused in the minds of the jurors."
1902, Brannon, J., in State v. Hill, 52 W. Va. 296, 43 S. E. 160 : " It may be a ques-
tion merely intended to embarrass the witness, worry the witness, exposing indecent
things in court, tending to corrupt morals, and answering no fairly useful purpose on the
trial. It almost invariably wounds the feelings of the witness and his family. It
removes the mantle of oblivion and forgiveness, by reopening the pages of years past,
and exposing acts done in the infirmity of human nature amid the temptations that
beset life. If this door is open wide, the witness stand will be a terror; men will sup-
press evidence from fear of it, to the injury of public justice; and it will threaten both
the worthy and unworthy witness, and be a cross upon vfhich attorneys too zealous in
their cause will crucify witnesses to suit their own ends. It would tend to disorder in
courts. Rarely, very rarely, should it be tolerated."
(3) The third type of rule prohibits entirely such a cross-examiimtion. If
the discretion allowed by the preceding rule were properly exercised, if there
" For the impropriety of insinuating by ques- believe to be true or capable of proof, see oiite,
Hon a fact which the cross-examiner does not § 780.
1116
§§ 977-996] CHARACTER, FROM CONDUCT. § 983
existed among the judiciary a desire to check excesses of cross-examination
arid to err if at all on the side of repression, and if the judiciary were
accustomed to exercise their powers fully and freely, there could be no better
solution than to vest the control in that discretion. But the judiciary to-day
are not always inclined to show to the abuses of cross-examination the
disfavor which those abuses deserve. The typical tendency of the modern
American judiciary is to abdicate that power of control over the trial which
tradition and the due course of justice demand that they shall have, and to
become more and more mere umpires, who rule upon errors and make no
attempt otherwise to check the misconduct of counsel.* For this reason,
as well as because of the usual unprofitableness of cross-examination to
character, there is much to be said in favor of the rule that now obtains in
several jurisdictions,^ by which such misconduct is forbidden to be inquired
into at all. In some of these jurisdictions, to be sure, this rule has come
about by a statutory enactment forbidding the proof into " particular acts " ;
the statute being probably framed on a misunderstanding of the rule against
extrinsic testimony (ante, § 979) without perceiving that only extrinsic testi-
mony was by that rule at common law intended to be excluded. But, what-
ever the accident of origin of those laws, the rule of total prohibition of
cross-examination, as well as of extrinsic testimony, on these matters, has
thus received sanction, and may be said to be the one most consonant with
our best sentiments and with the needs of the time :
1857, Lowrie, J., in Elliott v. Boyles, 31 Pa. 67 (excluding the question whether the
witness had not committed perjury on a certain trial) : " The question is entirely ille-
gitimate as a mode of attacking the credibility of a witness. If a man is received
among his neighbors as fully entitled to credit for veracity, a Court and jury can have no
grounds for discrediting him, except such as may arise from his want of intelligence or
candor, from his contradictions or partisanship in testifying before them. The fact
that those who are well acquainted with his home reputation know it to be now undoubted
is not set aside by any single crime, or even many of them, that he may long ago have
committed. If his reputation still rises above that, he is credible still, for the taint of
criminality is not entirely indelible. Hence the most proper test of character, before
human tribunals, is reputation, and not single acts. ... It would be absolutely intol-
erable that a man, by being brought into court as a witness, should be bound to submit
all the acts of his life to the exposure of malice, under the pretence of testing his credi-
bility. If such were the test, courts would often present, in language and temper,"scenes
of unmitigated ruffianism, and the means of enforcing law and order in society would
be denounced as scenes of coiTuptiou and disorder."
(4) Earely a Court is found to discriminate, on the present principle solely,
between the cross-examination of an ordinary witness and that of an accused
farty. The latter may well be in a different position respecting the extent
to which he has waived his privilege against self-crimination, by voluntarily
taking the stand ; and upon this point there is much diversity of opinion.
But even assuming the privilege to be waived or not claimed, it is still pos-
* Ante, § 21.
" In Massachusetts, Pennsylvania, California, and the States following the California Code.
1117
§ 983 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
sible to discriminate in his favor from the present point of view, in order to
prevent that unfair prejudice which might accrue against him as the accused,
by means of a cross-examination to misconduct which would be legitimate
enough for an ordinary witness. This discrimination, however, as independ-
ent of the question of privilege, is rarely taken.^
§ 984. Privilege against Answers involving Disgrace or Crime. Supposing
that the questions deal with facts of character relevant to be admitted, and
not obnoxious to exclusion because of the foregoing principle, the witness
may still be able to invoke a privilege of not disclosing the desired fact.
The privilege usually available under these circumstances is the privilege
against Self-Crimination {post, §§ 2250-2282). But is there no other? A
privilege against disclosing facts of mere Disgrace — not Criminality — was
up to the last century also available for the witness, and is in some jurisdic-
tions still maintained. Its treatment should not belong here, and so far as
it is necessary to distinguish it clearly from the Self-Crimination privilege,
the two must be again compared {post, §§ 2216, 2255). But historically it is
difficult to separate the English precedents which deal with this subject
and that of the Scope of Cross-examination {ante, § 983). In those rulings,
the evidence being excluded, it is often impossible to determine whether it is
because the fact was regarded as irrelevant to credit, or because, though it
was relevant and admissible, yet there was a privilege not to answer. The
nature of the discussion, however, was usually indicated by the mode of
stating the question at issue. If the fact itself was discussed as either irrel-
evant or undesirable to ask, the inquiry would be, " May the question be
put ? " ; but if the existence of the privilege was debated, the inquiry would
be, "Must the question be answered, if put?" The general view of the pro-
fession, towards the middle of the 1800s, was expressed in the conclusion
that " the question may be put, but need not be answered."
Now it is obvious that the mere discussion assumes that, upon the subject
of the preceding section, either the first or the second of those attitudes has
already been taken, i. e. facts of misconduct may be asked after by counsel,
either without limitation, or subject to the discretion of the trial Court in a
given case (and in England the second of these had prevailed up to that time).
Then, and then only, the present problem arises, i. e. whether it is desirable
to extend to the witness at least so much protection as to allow him to refuse
to disclose the truth. Thus, it will be seen, the considerations of policy that
apply to the matter are much the same as those that apply in tlie preceding
section (Scope of Cross-Examination) ; the main difference lies in the ex-
pedient adopted. In the one case, the policy that disapproved such an exam-
ination operated by forbidding the questions entirely, while in the present
case the same policy, without resorting- to such stern measures, allows the
question but permits the refusal to answer.
" Perhaps in New York only. The rulings the great mass of the rulings, which consider
which expressly and intelUgibly take it are only the question of waiver of privilege, are
noted ^osi, § 987, under each jurisdiction. But collected under that head, post, § 2276.
1118
§§ 977-996] CHARACTEE, FEOM CONDUCT. § 984
The practice in England, down to the middle of the 1800s, had definitely
taken the view (on the subject of § 983, ante) that misconduct was relevant
to character and that questions upon such matters could be put {ante, § 983 ;
post, § 987). But it had also, down to the 1800s, given a moderate operation
to the above considerations of policy by allowing the witness not to answer as
to disgracing (or " infamous ") matters. Even this much allowance, however,
came to be disputed ; and a strong opinion arose that advocated the abolition
of this privilege. The best statement of this view^is that of Mr. Starkie, and,
of the opposing view (defending the privilege), that of the Commissioners of
1853:
1814, Mr. Thoinas Starkie, Evidence, I, 193 : " The question whether a witness may be
asked questions which tend to disgrace him is, like many other difficult questions on the
subject of evidence, one of policy and convenience. On the one hand, it is highly de-
sirable that the jury should thoroughly understand the character of the person on whose
credit they are to decide upon the property and lives of others ; and neither life nor prop-
erty ought to be placed in competition with a doubtful and contingent injury to the feel-
ings of individual witnesses. On the other hand, it may be said that it is hard that a
witness should be obliged upon oath to accuse himself of a crime, or even to disgrace
himself in the eyes of the piiblic ; that it is a harsh alternative to compel a man to
destroy his own character or to commit perjury ; and that it must operate as a great dis-
couragement to witnesses to oblige them to give account of the most secret transactions of
their lives before a public tribunal ; that a collateral fact tending merely to disgrace the
witness is not one which is properly relevant to the issue, since it could not be proved by
any other witness ; and that there would be perhaps some inconsistency in protecting
a witness against any question the answer to which would subject him to a pecuniary
penalty, and yet leave his character exposed. . . . [After examining the rulings,] The
great question, therefore, whether a witness is bound to answer a question to his own dis-
grace has not yet undergone any direct and solemn decision, and appears to be still open
for consideration. The truth or falsehood of testimony frequently cannot be ascertained.
by mere analysis of the evidence itself; the investigation requires collateral and extrinsic
aids, the principal of which consists in a knowledge of the source or depositary from
which such testimony is derived. The whole question resolves itself into one of policy
and convenience, — that is, Whether it would be a greater evil that an important test of
truth should be sacrificed, or that, by subjecting witnesses to the operation of this test,
their feelings should be wounded and their attendance for the purposes of justice dis-
couraged? The latter point seems to deserve the more serious consideration, since th&
mere offence to the private feelings of a witness who has misconducted himself cannot
well be put in competition with the mischief which might otherwise result to the liberties
and lives of others. No great injustice is done to any individual, upon whose oath the
property or personal security of others is to depend, in exhibiting him to the jury such as
he is. As to the other consideration, it does not seem to be very clear that by permitting
such examinations any serious evil would result ; the law possesses ample means for com-
pelling the attendance of witnesses, however unwilling they may be. The evil on this
side of the question is at all events doubtful and contingent ; on the other side it is plain
and certain. The principle on which such evidence is admissible is clear and obvious;
the reason for excluding it is extrinsic and artificial."
1853, Common Law Practice Commission, Jervis (later C. J.), Cockburn (later C. J,),
Martin (later B), Walton, Bramwell (later B), and AVilles (later J.), Second Report,
22 : " With regard to questions which do not tend to expose the witness to prosecution
or punishment, but which tend to degrade his character by imputing to him misconduct
not amounting to legal criminality or the having been convicted of a crime the pnnish-
1119
§ 984 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
ment of which has been undergone, the law of England, according to the better author-
ities) in like manner protects the witness from answering, unless the misconduct imputed
has reference to the cause itself. Should this rule be maintained ? On the one hand,
the witness may have been recently convicted of psijury or some other form of the crimen
falsi ; he may have become infamous by his offences against the law or against society ;
he may have, to his own knowledge, acquired a bad repute for habitual mendacity; and
it may be highly important that the jury who are to weigh bis testimony should be made
aware of the drawbacks which thus attach to it. On the other hand, it cannot be denied
that it would be an extreme grievance to a witness to be obliged to disclose past transac-
tions of life which may have been long forgotten, and to expose his character afresh to
evil report and obloquy when by subsequent conduct he may have recovered the good
opinion of the world. As the law now stands, the question may be put, but the witness
is not bound to answer; but if he does answer and denies the imputation, his denial is
conclusive and cannot be controverted. It has been proposed to take away the privilege
of the witness and to compel him to answer. We cannot bring ourselves entirely to con-
cur in this view. We have already pointed out the effect which the dread of an inquiry
of this nature may have in deterring a witness from appearing in court. To this may be
added that, while under the present system the refusal to answer has practically the effect
of an admission, the consequence of compelling the witness to answer would not improb-
ably be to induce him to give an absolute denial, which would not be open to contradic-
tion. On the balance, then, of these opposing considerations, we recommend that the
existing law should be maintained, except that where the question relates to the convic-
tion of the witness of perjury or any other form of the crimen falsi and the witness either
denies the fact or refuses to answer, the conviction should be allowed to be proved." '
As to the propriety of recognizing this privilege, two things may be said :
(1) It is a compromise. From the point of view, therefore, of those who
believe in the propriety of a total prohibition, this privilege is not adequate,
but it is to be welcomed as entirely desirable and indispensable, in the ab-
sence of such prohibition. (2) It is much less effective than in theory it
seems to be. Witnesses are seldom in a position to repudiate these questions
with such dignity of manner and sincerity of principle as to convince the
hearer that they are merely vindicating their rights and not evading a direct
confession of the disgraceful fact. In practically every case the witness' re-
fusal to reply answers all the purposes of the inquiring counsel, and is as good
as an affirmative in effecting the desired discredit. It is mere hypocrisy to
defend such a privilege on the ground that it gives the witness any real pro-
tection against the disclosure of his disgrace ; he does not form the words of
self-betrayal with his lips, to be sure, but he is saved from nothing more. In-
deed, there have been some who have frankly accepted this as the inevitable
result,^ and have deprecated any attempt to abolish the privilege, on the
ground that the failure to answer attained practically all that the abolition
of the privilege could effect. It should better be abandoned altogether. We
maybe content with the simple rule(a«.<e, § 983) that the scope of cross-exam-
ination shall be allowed to include such questions and answers as the trial
Court may in discretion permit and compel. In point of practice and ten-
1 Compare also (1827) Bentham, "Rationale of Judicial Evidence," b. IX, pt. IV, c. Ill, Bow-
ring's ed., vol. VII, p. 464.
* Best, Evidence, 7th ed., § 130.
1120
§§ 977-996] CHARACTER, FROM CONDUCT. § 986
dency, the privilege against disgracing answers has, in the last generation or
two, been more and more repudiated or ignored.^
§ 985. Summary of the Preceding Topics. For the purpose of ascertaining
the state of the law in each jurisdiction upon the preceding closely-related
topics, it will be necessary, leaving for their proper places the subjects of the
. Self-Crimination privilege {post, § 2250) and the rule for Copies of Eecords of
Conviction {post, § 1270), to group the statutes and rulings under four sepa-
rate heads ; in each of them is sought the answer to a separate inquiry, the
principles of which have now been examined :
1. Extrinsic Testimony {ante, § 979) : May particular acts of misconduct
be shown by extrinsic testimony ?
2. Scope of Cross-Examination {ante, §§ 982, 983): What limits are set,
if any, by the principles of Eelevancy, to the use of particular acts of
misconduct on cross-examination? What other limits are set, if any, by
considerations of policy, to such use ?
.3. Privilege against Disgracing Answers {ante, § 984) : Where such cross-
examination is allowed at all, how far is recognized a privilege not to answer?
4. Prior Conviction of Crime {ante, § 980): Where, by record copy of
judgment or by cross-examination, the conviction of a crime is allowed to be
used, what kinds of offences and judgments are treated as admissible ?
§ 986. Same: History and State of the Law in England and Canada.
(1) Extrinsic Testimony. The rule excluding proof by extrinsic testimony
was not fairly announced as settled until the opening of the 1700s, although
it had been forecasted and occasionally invoked in the practice of the latter
part of the prior century.^ The turning-point seems to have been marked by
the trial of Eookwood, in 1696 ; and within a generation thereafter the rule
was accepted, beyond any question, in common-law trials.^ But in Chan-
' The cases are collected post, § 987. from him, and had threatened to swear falsely
"■ 1653, Faulconer's Trial, 5 How. St. Tr. 323, against him, his own brother) ; 1706, Feilding's
354' (the charge being perjury, it- was testified Ti-ial, ib. 1355, 1357 (that the woman-witness
that F. " hath been as wicked a man as any in had had two bastard children, admitted) ; 1710,
England " ; "that being at Petersfield, he drunk Willis' Trial, 15 id. 636, semble (admitted) ; 1716,
an health to the devil in the middle of the Francia'a Trial, ib. 936 (counsel alludes to the
street"; that he had said " our Saviour Christ exclu.'iion of such testimony as a rule); 1753,
was a bastard, and a carpenter's son"); 1679, Barbot's Trial, 18 id. 1288 (similar); 1798,
Whitebread'sTrial, 7id. 311, 392(offertoprovea Bond's Trial, Ire., 27 id. 584 (rule conceded),
case of cheating, allowed) ; 1679, Turberville w. ^ The following later authorities recognize
Savage, Vin. Abr. XII, 39 (outside testimony to it : Ire. : 1802, McNally, Evidence, 324 (with
particular acts, excluded); 1680, Earl of Staf- precedents) ; Eng. : 1812, R. «. Hodgson, E. &
ford's Trial, 7 How. St. Tr. 1293, 1394, 1457 K. 211, by all the Judges (rape; particular acts
(similar testimony, admitted) ; 1686, LordDela- of intercourse by the prosecutrix with others,
mere's Trial, 11 id. 509, 570 (similar) ; 1692, Har- excluded ; but it does not appear that ordinary
rison's Trial, 12 How. St. Tr. 863, 869 (keeping a impeachment was intended) ; 1817, K. v. Clarke,
houji' of ill-fame ; no objection made ; the Court 2 Stark. 241, 243, Holroyd, J. (same); 1817,
refers to the evidence in the charge) ; 1696, Rook- Sharp v. Scoging, Holt N. P. 541 (Gibbs, G. J. :
wood'* Triiil, 13 id. 209 (excluded ; .see quota- " You cannot ask them as to particular acts of
tion ante, § 979) ; 1696, Cranburne's Trial, ib. criminality or jiarts of conduct") ; 1824, May v.
264 (misconduct of the same witness as in the Brown, 3 B. & 0. 126, Bayley, J. ("a particular
preceding trial was here allowed to be shown) ; crime ") ; 1848, K. v. Dnft'ey, 7 State Tr. N. s.
1696, Vaufjhan's Trial, ib. 518, 519 (L. C. J. Holt 795, 896 (that the witness had been discharged
told the witness to keep to the matter of repu- for fraud, excluded) ; 1853, Second Report of
tation, but afterwards allowed him to state that Common Law Practice Commission, p. 22 ; Can. :
he knew the attacked witness had stolen money 1876, McCreary v. Grundy, 39 U. C. Q. B.
1121
§ 986 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
eery practice the rule was from the outset deliberately rejected. One of the
reasons given by Lord Hardwicke was this :
" Though at law you can examine only to the general credit, yet it is otherwise in equity;
for at law the witness cannot be prepared to defend every particular action of his life, as
he does not at all know to what they intend to examine him ; but upon an examination
in this court he may be able to answer any particular chai-ge, as he has time enough to
recollect it." '
This reason, liowever, was erroneously understood by the learned Chancellor ;
for the unfair surprise that was feared did not consist in the difficulty of the
witness' own recollection, but in the difficulty of having other witnesses
ready. Another reason* was that as the examination by deposition, cus-
tomary in Chancery, had to be prepared beforehand in the form of ques-
tions, it was practically difficult to cross-examine as to character in that way,
and therefore extrinsic testimony was the sole practicable method.^ But the
real reason probably was merely that the common-law practice had received
a development of its own, at the time when cross-examination was becoming a
powerful instrument,* and that the rule had never happened to obtain a foot-
ing on the Chancery side.^ The Chancery rule, then, as varying from the
common-law rule (yet even this was doubted, to be sure, by the learned re-
porter Atkyns), was thus administered down into the 1800s, though its wisdom
was questioned by such eminent Chancellors as Eldon and Kent.^
2. Scope of Cross-examination. It has been maintained by Sir J. Stephen
that in the earlier practice no cross-examination to misconduct was allowed.'
If this were so, it was natural enough in criminal cases, where (until the end
of the 1600s) no witnesses were sworn for the accused, and the Crown's
witnesses were favored by various protections. But by the 1700s, with cross-
examination fully developed, this could not last ; and during that century it
316. The following ruling is anomalous : 1834, been discharged from his employment by one at-
R. V. Noel, 6 C. & P. 336, semUe (that the torney for fraud, and by another for communi-
witness was on bail on a charge of keeping a eating a brief to the hostile solicitor " ; Eklon,
gaming-house admitted). L. C, ordered it taken off the file: "You may
» 1747, Gill V. Watson, 3 Atk. 522. ask, whether the witness is to be believed upon
* Counsel arguing in Anon., 3 Ves. & B. 93. his oath ; which is the com-se at law, not "oiiK'
» For the ineffieacy of cross-examination in to particular facts. If the proceedings in this
Chancery, see post, § 1846. court are open to the defect that has been men-
tor the history of cross-exammation, see tioned [i. e. no cross-examination to discredit],
^ ,'rlu ot' , . *^«' ^°^ "0' ™ake it fit to introduce all the
' The Chancery rule, it may be added, after scandal") ; 1818, Troupe. Sherwood, 3 Johns.
puMicaivm of the deposUions, did not allow ex- Ch. 558, 562, Kent, C. (recrretting that the rule
amination to particular misconduct where it was was not the same as at law)
also relevant to the main issue, because, after » 1883, History of the cViminal Law, I, 436.
the depositions in the cause were once published. Perhaps the learned historian had in mind the
no further examination on material points was rulings on the privik^ge against disgracing
usualIyalowable:lS03 Wood«. Hatnnierton, 9 answers (post). At any rate, the only plain
1"^ -o •/?. f \ I' i^'"'" "■ Fussell, 1 Ves. & authority seems to be the following : 1642, On-
1 - \ Jon r. ^^^''^^l^. '"■'^'iit and character bie's Case, March, pi. 136 ( '• in examinii^ of a
only )■ 183,, Oass ». Stmson, 2 Sumner 609, witness, counsel cannot question the whole life
Story, J. ( such particnlar facts only as are not of the witness, as that he is a whoremaster, etc. ;
materia to what is already in issue in the cause, but if he hath done such a notorious fact which
. . . which case seems allowed only to impugn is a just exception against him, then thev may
the witness statements as to collateral facts "). except against him. That was Onbxe's case, of
1314, Anon., 3 Ves. & B 93 (an affidavit Gray's Inn ; and by all the judges it was agreed
discrediting a petitioner stated that " he had as before "). e juugra ii, was ag
1122
§§ 977-996] CHARACTER, FROM CONDUCT. § 986
is plain that the exploiting of the witness' life and associations, however dis-
creditable, was freely allowed. The orthodox rule came to be that "any
question tending to discredit" might be asked ; and only rarely was there any
interference from the Court. ^^ Occasionally there was an intimation that the
misconduct should have some relevance to the trait of veracity ; and occasion-
ally there was an exercise of discretion on grounds of policy. But it seems
to have been thought that the witness' privilege against disgracing answers
was the only protection needed. Whatever judicial interference took place
was usually by way of an appeal to the counsel's own discretion and sense of
propriety, and not to any settled rule of law :
1817, Walsoris Trial, 32 id. 295, 297 ; that his friends were felons; that he was a big-
amist ; that he had been employed in a house of ill-fame, etc., were allowed to be the
subjects of questioning. But limits were drawn : Mr. WeMereH, cross-examining : "Did
you [being married] ever make proposals of mariiage to any person within these three or
four years ? " L. C. J. Ellenborough : " How can that question be asked ? I will put it to
your own feelings, your own good sense." Mr. Wetherell: " I will not carry it further."
Another witness admitted one Dickins to have been his companion. Mr. WethereH, cross-
examining: " Do you not know that it is the same Dickins that was discharged at the Old
Bailey as the associate of a man of the name of Vaughan in hatching up those conspira-
cies ? " A. " I do not know." L C. J. EUenborour/k : " How can he know this ? " Mr.
Wetherell : " My object is, to show that this man's associates are all felons or the most
base of mankind." L. C. J. Ellenborough : " This is really very irregular. ... It is
really corrupting all justice when such prejudices are introduced. The Court are of opinion
that the question should not be put."
The more modern practice seems to have maintained this theoretically
unlimited license of cross-examination, even after the middle of the 1800s,
when the privilege against disgracing answers was no longer recognized.^^
^^ 1746, Lord Lovat's Trial, ]8 How. St. Tr. tions to the pro.secutrix on a rape charge, and
651 (L. C. Hardwicke : " The other party is at pains were then seldom taken to distinguish
liberty to cross-examine him either to the matter mere misconduct as affecting credibility from
of fact concerning which he has been examined, former intercoiarse as affecting the likelihood of
or any other matter whatsoever that shall tend present consent {cmte, § 200) ; the latter inference
to impeach his credit or weaken his testimony ; was probably chiefly in the minds of the judges,
provided the questions that are asked him are though the true discrimination seems not to have
such as the law allows ") ; 1780, Maskall's Trial, been finally made until 1843, in R. v. Martin,
21 id. 667 (cross-examination to being on bad 2 M. & Rob. 512, by Coleridge and Erskine, JJ.
terms with his wife was stopped by the Court) ; There can hardly be any doubt, however, that
1794, Rowan's Trial, 22 id. 1115 (on cross-exam- throughout all the period of these cases the free
ination, that the witness had attested a bond use of inquiries into misconduct on cross-exam-
alleged to have been forged, that he had taken a ination was generally recognized,
note from an alleged in.sane person, etc., allowed) ; " To the quotations ante, § 983, arid the fol-
1798, O'Coigly's Trial, 26 id. 1351, semble (that lowing authorities : England: 1846, Smithy. Earl
the witness was a common informer, allowed); Ferrers, Cherer's Rep. 46 tf. (breach of niarriage-
1795-1799, McNally, Evidence, 258 (citing piomise ; the plaintiff relied on a long series of
several cases of ci'oss-examination to arrests and letters ; the defendant denied their gen\nneneKS
accusations); 1820, R. v. Hunt, 1 State Tr. N. s. and claimed that the plaintiff had written them
171, 220, 234 (whether he had been discharged herself ; a chief witness to the handwriting for
from his regiment, allowed : that he had been the plaintiff was a Reverend Mr. Arden, formerly
dismissed from a situation for taking his em- chaplain to the defendant; his cross-examination,
ployer's money, allowed). The cases in par. 3, by Sir F. Thesiger, Attorney-General, was a mas-
infra, also illustrate this free use of such ques- terly piece of work, and is one of the best illus-
tions ; but these rulings must be only cautiously trations of the accepted English method of
used as precedents I the main question in most discrediting a witness by the freest and fullest
of them was that of privilege against disgracing exposure of a discreditable past, significant as a
answers ; moreover, most rulings are upon ques- whole if trivial in detail) ; 1848, E. v. DufFey, 7
1123
§ 986
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
3. Privilege against Disgracing Answers. This privilege, clearly existed in
the early ITOOs, at a time when the limits of the privilege against Self-Crim-
ination {post,, § 2250) had not become clearly fixed :
1G96, L. C. J. Treby, in Cook's Trial, 13 How. St. Tr. 334 : " That you can ask a juror
or a witness every question that will not make him criminous, — that is too large.
Men have been asked whether they have been convicted and pardoned for felony, or
whether they have been whipped for petit larceny ; but they have not been obliged to
answer ; for though their answer in the affirmative will not make them criminal or subject
them to a punishment, yet they are matters of infamy ; and if it be an infamous thing,
that is enough to preserve a man from being bound to answer. A pardoned man is not
guilty, his crime is purged ; but merely for the reproach of it, it shall not be put upon
him to answer a question whereon he will be forced to forswear or disgrace himself. , . .
The like has been observed in other cases of odious and infamous matters which were not
crimes indictable."
But, in some obscure way, the privilege fell into disuse ; ^^ and its exercise
was not revived again till the beginning of the 1800s. During the first half
of the century numerous conflicting rulings were made.^^
State Tr. N. s. 795, 892 (question put as to having
been charged with embezzlement); 1862, Hen-
man V. Lester, 12 C. B. N. s. 776 (whether a
witness had not lost a suit based on similar
fraudulent representations; allowed); 1881 (?),
L. C. J. Cofikburn, article in 15 Ir. Law Times
346, quoted from Australian Law Times (opposes
the unlicensed extreme); 1883, Rules of Court,
Ord. 36, rule 38 ("The judge may in all cases
disallow any question put in the cross-examina-
tiou of any party or other witness, which may
appear to him to be vexatious and not relevant
to any matter .proper to be inquired into in the
cause or matter"); 1891, Nov. and Dec, Rus-
sell V. Russell (divorce), Osborne v. Hargreaves
(theft of jewels), London (here the cross-examina-
tion was so unlicensed as to lead to much public
correspondence, by barristers and others, as to
the law and its propriety; see Law Times, vol.
92, pp. 89, 104, 138 ; Law Journal, vol. 26, pp.
767, 768, 783, vol. 27, pp. 15, 56 ; Lord Bram-
well, "Dross-examination," Nineteenth Century,
Feb. 1892 ; letters in the London Times, Jan.
4-9, 1892, and before that date); Canada: Bom.,
1877, Laliberte v. R., 1 Can. Sup. 117, 120, 139,
141 (rape; question to the prosecutrix as to in-
tercourse with other men ; held by Richards,
C. J., that the question might be put, but the
witness could decline to answer ; by Ritchie, J.,
and Strong, J., that the trial Court had di.scre-
tiou to compel an answer ; the three remaining
judges not expressing an opinion); B. C. . St.
1902, c. 22, § 6 (the examination shall be con-
fined to "questions relevant to the i-ssnes" ; and
"no irrelevant question shall be asked merely
for testing the credibility of the witness")";
JVvof. : Cons. St. 1892, o. 50, Rules of Court
32, par. 17 (like Eng. Ord. 36, supra); iV. Sc. :
Rules of Court, 1900, Ord. 34, E. 31 (like Eng.
Ord. 36, swpra); JV. W. Terr.: Cons. Ord. 1898,
c. 21, Rule 260 (like Eng. Ord. 36, supra); Ont. :
Rev. St. 1897, c. 73, § 7 (adultery; quoted ante,
§ 488); 1877, Hickey i-. Fitzgerald, 41 V. C. Q. B.
303 (trial Court's discretion controls as to mat-
ters "irrelevant to the issue").
" Mr. Feake, writing in 1801 (Evidence, 2d
ed., p. 130 ff. ), speaks of the non-recognition of
such a privilege as having "so long continued
without objection that no one at the bar thought
of questioning the legality of it" ; it was " the
. established and invariable practice for a consid-
erable space of time " ; and the questioning of his
own day was merely a novelty of " some of the
judjres."
^^ Of the following rulings, those which ex-
clude the evidence do not always make it clear
whether they go upon the ground of privilege or
upon some other rule : 1791, R. v. Edwards,
4 T. R. 440 (whether he had not stood in the
pillory for perjury, allowed) ; 1797, Franco i;.
Bolton, 3 Ves. Jr. 368 (discovery against a woman
suing ou a bond ; defence, that plaintiff lived in
adultery with defendant ; discovery refused, as
involving "not only thereproach, but the con-
sequence " of adultery) ; 1802, McNally, Evi-
dence, 258 (privilege applies to answers involving
"his own turpitude or infamy"); 1803, R. v.
Lewis, 4 Esp. 225 (" Whether he had not been
in the House of Correction ?"; privileged; L.C.J.
EUenborough : "It would be an injury to the
administration of justice if persons who came to
do their duty to the public might be subjected
to improper investigation," !. e. "the object of
which was to degrade or to render infamnns";
refeiTing to it as a settled rule) ; 1803, Mac-
hride v. Macbride, ib. 242 (" Whether the wit-
ness lived in a state of concnbiuage with the
plaintiff?", privileged; Lord Alvanley : " I will
not say that a witness shall not be asked to what
may tend to disjiarage him ; . . . 1 think those
questions only should not be asked which have
a direct and immediate effect to disgrace or di.s-
parage the witness") ; 1803, Millman w. Tucker,
Peake Add. Cas. 222, L. C. J. EUenborough
(whether he had been imprisoned on conviction
of forgery, privileged) ; 1809, K. v. Teal, 11
1124
§§ 977-996]
CHAEACTER, FROM CONDUCT.
98G
So far, however, as the privilege was conceded at all, it had always two
limitations : (1) It applied only to collateral facts, i. e. to facts not material to
the issue in the case, — in short, only to facts affecting character, bias, cor-
ruption, and the like ; (2) it applied only to facts directly involving disgrace,
and not to facts merely tending to disgrace indirectly.
The Common Law Procedure Commission, in their report of 1853, treated
the privilege as still a part of the law " by the better authorities,'' and recom-
mended its preservation.'* But the Act of 1854 provided nothing about the
privilege, except to authorize questions about former convictions.'^ Since
that time, however, the general understanding of the profession has been
that it no longer exists.'^
4. Prior Conviction of Crime. This was of course used chiefly, up to the
middle of the 1800s, to affect the witness with incompetency, and exclude
him altogether. But if for any reason it was unavailable for that purpose
it could still be used in discredit.'^ When in the 1800s the disqualification
East 311, I/. C. J. Ellentiorough (a woman-wit-
ness ; bastardy ; criminal intimacy with several
otlier persons, admitted, without objection on
this ground) ; 1811, Yewin's Case, 2 Camp. 638,
Lawrence, J. (whether he had been charged with
robbing his master, privileged) ; 1812, R. v.
Hodgson, E. & K. 211, all the Judges except
four being present (rape ; whether the prosecu-
trix had before had connection with any one or
with a named person, privileged, because not
bound "to criminate and disgrace herself") ;
1814, Dodd V. Norris, 3 Camp. 519 (seduction ;
whether the daughter, testifying, had been crim-
inally intimate with others, privileged ; all the
Judges approved) ; 1817, R. v. Clarke, 2 Stark.
241, 243, Holroyd, J. (rape ; cross-examination
of the pi'osecntrix as to committal to the House
of Correction, allowed ; also as to her past con-
duct with reference to chastity) ; 1823, R. v.
Pitcher, 1 C. & P. 85, Hullock, B. (larceny by
a wom.in ; whether the prosecutor had behaved
improperly with her at the time, privileged) ;
1823, R. V. Barnard, ib. note, Hullock, B.
(whether he had ever been charged with felony,
etc., allowed) ; 1823, R. v, James, ib. Bosanquet,
Serj. (whether he had been turned out of office
as constable for misconduct, privileged); 1823,
Bate V. Hill, ib. 100, Park, J. (seduction ;
whether the daughter, testifying, had kept im-
proper company, allowed) ; 1829, R. v. Barker,
3 id. 589 (rape ; that the prosecutrix, testifying,
had on one occasion acted the prostitute, ex-'
eluded at first by Park, J., on authority of R. v.
Hodgson, "though you may certainly give evi-
dence of general lightness of character, and gen-
eral evidence of her being a street-walker"; but
on conferring with Par)<e, J., the question was
allowed) ; 1827, Cundell v. Pratt, Moo. & M. 108
(Best, C. J.: "I do not forbid the question on
the ground that it tends to degrade. I for one
will never go that length ; until I am told by
the Honae of Lords that I am wrong, the rule I
shall always act on is to protect witnesses from
questions the answers to which may expose them
to punishment. If they are protected beyond
this, from questions that tend to degrade them,
many an innocent man would suffer") ; 1830,
R. V. Jenkin, 1 Lew. Or. C. 326, Parke, J.
(whether his house was a gambling-house, priv-
ileged) ; 1834, B. V. Martin, 6 C. & P. 562, Wil-
liams, J. (eviden<'6 as in R. v. Hodgson, thought
admissible) ; 1844, R. v. Parker, 1 Cox Cr. 76
(whether the witness bad served a two-years'
sentence in prison; Cresswell, J., recognized the
right to put the question and the privilege to
decline to answer it, because "of infamous
nature," adding: "Some uniform rule of prac-
tice should be laid down by the Judges on this
point, since there are so many contradictory
dicta respecting it").
" Quoted ante, § 984.
" St. 17 & 18 Vict. 0. 125, §§ 25, 103 ; ap-
plied to criminal cases in 1865, by St. 28 Vict.
c. 18, § 6.
^* Mng. : 1872, Day, Common Law Procedure
Act, 4th ed., 278; 1877, Stephen, Digest of
Evidence, 3d Eng. ed., Art. 129, Note XLVI ;
1882, Best, Evidence, 7th ed., § 130 ; 1873, R.
V. Castro (Tichborne), quoted ante, § 983 ;
Can. : 1877, Lalibert^ v. R., Can. Sup. (see cita-
tion supra) ; Ont. ; 1876, McCreary v. Grundy,
39 U. C. Q. B. 316, 324 (seduction ; questions
to witnesses called for the defence, whether they
had had intercourse with the woman, held not
privileged) ; 1897, Gross v. Brodrecht, 24 Ont.
App. 687 (approving Laliberte v. R., supra).
" 1692, Harrison's Trial, 12 How. St, Tr.
861, 869 (cheating) ; 1696, Cook's Trial, 13 id.
359, 388 (attempt to murder by poison). This
was true even where the offence had been par-
doned: 1680, Hale, Pleas of the Crown, II,
278; 1695, Crosby's Trial, 12 How. St. Tr.
1296 (quoted aide, § 980) ; 1696, Rookwood's
Trial, 13 id. 139, 185. Contra: 1679, Reading's
Trial, 7 id. 259, 296 (" It is a scandal to re-
proach a man for that which he is thereby par-
doned for ").
1125
986
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
was abolished, the statute sanctioned the use of convictions for all kinds of
crimes by way of impeachment.^^ The subsequent statute, however, which
made accused persons competent, expressly protected them from this,i^ —
varying on this point from the general rule in the United States.
§ 987. Same : State of the Law in the various Jurisdictions of the United
States. The state of the law upon the foregoing topics ^ illustrates the truth
18 Eng. : 1844, St. 6 & 7 Vict. c. 85 ; 1854,
St. 17 & 18 Vict. u. 12.5, § 103 (" A witness in
any cause may lie questioned as to whether he
has been convicted of any felony or raisde-
meanoi' ; and, upon being so questioned, if he
either denies the fact or refuses to answer, it
shall be lawful for the opposite party to prove
such conviction ") ; applied to criminal cases, in
1865, by St. 28 Vict. c. 18, § 6 ; Can. : Grim.
Code 1892, §695 (like Eng. St. 1854, c. 125,
§ 25, substituting " any offence ") ; B. C. :
Kpv. St. 1897, e. 71, § 32 (like Eng. St. 1854,
c. 125, § 25, substituting "any offence, indict-
able or not ") ; A^. Br. : Cons. St. 1877, c. 46,
§ 22 (like Eng. St. 1854, c. 125, § 25) ; Newf. :
Cons. St. 1892, c. 57, § 20 (like Eng. St. 1854,
c. 125, § 25) ; N. Sc. : Kev. St. 1900, c. 163, § 45
(like Kug. St. 1854, c. 125, § 25, substituting
" anv crime ") ; Oni. : Eev. St. 1897, c. 73, § 19
(like Eng. St. 1854, c. 125, § 25, substitut-
ing "crime" for "felony or mi-sdemeanor ") ;
P'.H. I. : St. 1889, c. 9, § 18 (like Eng. St. 1854,
L-. 125, § 25).
" 1898, St. 61 & 62 Vict. c. 36, § 1 (ac-
cused testifying shall not be asked as to former
conviction of an offence) ; 1900, Charnock v.
Merchant, 82 L. T. R. N. s. 89 (statute applied).
1 Tlie statutes and decisions are as follows ;
cross-references to related topics have been placed
ante, under §§ 979-984 :
Alabama. 1. Extrinsic Testimony is ex-
cluded : 1846, Sorrelle v. Craig, 9 Ala. 539 ;
1850, Nugent v. State, 18 id. 521, 526 (acts of
unchastity) ; 1880, Moore v. State, 68 id. 362
(whether he had fled from a charge of burglary);
1896, Feibelman v. Assur. Co., 108 id. 180, 19 So.
540 (witness for a policy-holder ; evidence of two
or three fires on his premises in one year, ex-
cluded) ; 1896, Crawford v. State, 112 id. 1, 21
So. 214 (illicit relations) ; 1897, Lord v. Mobile,
113 id. 360, 21 So. 366 (immorality). 2. Scope
of Cross-examination: 1871, Boles i'. State, 46
Ala. 206 ("whether she was of such ill-fame as
to be excluded from society " ; excluded, for
though an ill-fame "such as impeaches her ver-
acity " could be asked about, it did not appear
what kind of ill-fame was here meant) ; 1901,
Louisville & N. B. Co. v. Bizzell, 131 id. 429,
30 So. 777 (cross-examination to habits of pro-
fanity and drinking, allowed). 3. Privilege
agnvnst Disgracing Answers: 1871, Boles v.
State, jupra (whether the witness was of ill-fame ;
privilege repudiated). 4. Conviclinn of Crime:
Code 1897, § 1795 (quoted ante., § 488) ; 1853,
Campbell v. State, 23 Ala. 44, 73 (conviction for
libel, excluded, as not affecting veracity) ; 1892,
Prior V. State, 99 id. 196, 13 So. 681 (petit
larceny, admitted) ; 1901, Smith v. State, ib.
89, 29 So. 699 (under C. § 1795, an " infamous
crime '' retains its common-law definition ; con-
viction for carrying a. concealed weapon, ex-
cluded) ; 1901, Bodine v. State, 129 id. 106, 29
So. 926 (the judgment must be in a court having
jurisdiction) ; 1902, Wells v. State, 131 id. 48,
31 So. 572 (theft, admitted) ; 1903, Castleberry
V. State, 135 id. 24, 33 So. 431 (conviction for
some crimes, but not of any crime, is admis-
sible) ; 1903, Viberg v. State, — id. — , 35
So. 53 (petit larceny, admitted ; suspension of a
judgment's execution pending an appeal does
not prevent its use to impeach).
Alaska. 1. Extrinsic Testimony: C. C. P.
1900, § 669 (like Or. Annot. C. 1892, § 840).
2. Scope of Cross-examination. 3. Privilege
against Disgracing Answers: C. C. P. WOO,
§ 675 (like Or. Annot. C. 1892, § 847). 4.
Cmviction of Crirne : C. C. P. 1900, § 669 (like
Or. Annot. C. 1892, § 840) ; § 1033 (like ib.
§ 710).
Arizona. 4. Conviction of Crime : Rev. St.
1887, § 2037 (quoted ante, § 488).
Arkansas. 1. Extrinsic Testimony: Stats.
1894, § 2959 (a witness may not be im-
peachTed " by evidence of particular wrongful
acts, except that it may be shown by the exam-
ination of a witness or record of a judgment that
he has been convicted of a felony"); 1879,
Anderson o. State, 34 Ark. 257 (indictment for
larceny, excluded); 1890, Hollingsworth w. State,
53 id. 387, 390, 393, 14 S. W. 41 (outside testi-
mony to specific acts, inadmissible). 2. Scope
of Cross-examinaiimi : 1853, Pleasant v. State,
13 Ark. 360, 377 (the trial Court's discretion
predicated ; here, a question as to compounding
the prosecution, allowed) ; 1855, PleaSiint v.
State, 15 id. 624, 649 (compounding a felony;
admissible, though covered by privilege ; the
trial Court apparently given some discretion) ;
1884, Carr v. State, 43 id. 99,' 102 (whether he
had been under indictment for the same murder,
excluded) ; 1890, Hollingsworth v. State, supra
(declining to lay down specific limits, but admit-
ting answers disclosing gaming, fighting, and
unlawful cohabitation, brought out by the ordi-
nary questions as to residence and occupation ;
the preceding cases not cited) ; 1894, Holder v.
State, 58 id. 478, 25 S. W. 279 (whether he had
left other places beranse he had committed cer-
tain crimes, held improper ; but the ruling is
useless, because it confuses the privilege rule
with the present one) ; 1895, Bates v. State, 60
id. 450, 30 S. "W. 890 (question as to a prior in-
dictment, excluded; "it raises no legal pre-
sumption of guilt"); 1899, Lee «. State, 66 id.
286, 50 S. W. 516 (whether a witness was not the
mother of certain criminals, excluded) ; 1902,
Stanley v. Ins. Co., 70 id. 107, 66 S. W. 432
(fire-insurance policy; cross-examination of the
1126
§§ 977-996]
CHARACTER, FEOM CONDUCT.
987
(not as often judicially appreciated as it ought to be) that there are half a
hundred independent jurisdictions within our boundaries, and that it is im-
jilaintiffto a former burning of an insured house,
lie'.d iiiiiiroper, as not affecting credibility ; so
also questions as to being under indictment for
the burning in issue) ; 1902, Bergstrand v.
Townsend, ib. 600, 70 S. W. 307 (questions as
to witness' occupation at a remote prior time,
held properly excluded in the tiial Court's dis-
cretion). Privilege ayaiiist Dugracing Ansioers:
1853, Pleasant v. State, supra (question as to
attempt to stifle prosecution ; I'efnsal merely be-
cause of tendency to degrade, improper) ; 1855,
Pleasant v. State, supra (recognizing it for ques-
tions to the prosecutrix in rape as to intercourse
with third persons, but not as to intercourse
with the defendant) ; 1883, Polk v. State, 40 Ark.
482, 487 (eouii]lainant in seduction ; whether
she had had intercourse with other men ; priv-
ilege recognized) ; 1890, HoUingsworth v. State,
supra (apparently ignoring any privilege). 4.
Conviction of Cri'me: Stats. 1894, § 2959 (quoted
supra).
California.. 1. Extrinsic Testimony: 1867,
People V. Jones, 31 Cal. 565, 571 (excluded, in
the principle of non-contradiction on collateral
matters) ; 1872, Code Civ. Pr. § 2051 (a wit-
ness is not impeachable •' by evidence of paitic-
idar wrongful acts, except that it may be shown
by the examination of the witness, or the record
of the judgment, that he has been convicted of a
felony ') ; applied in the following cases: 1875,
People V. Amanacus, 50 Cal. 233, 235; 1885,
People V. Hamblin, 68 id. 101, 103, 8 Pac. 687;
1889, Sharon v. Sharon, 79 id. 637, 673, 22 Pac.
26, 131 ; 1890, Davis v. Ponder Works, 84 id.
617, 627, 24 Pac. 387 ; Jones v. Duchow, 87 id.
109, 114, 23 Pao. 371, 25 Piic. 256; 1899,
Janjes' Estate, 124 id. 653, 67 Pac. 579, 1008;
1901, Steen v. Santa Clara V. M. & L. Co., 134
id. 355, 66 Pac. 321. 2. Scope of Cross-exawi-
V'ltion: 1868, Clark v. Reese, 35 Cal. 89, 96
(personal liberties with the plaintiff, in a breach
of promise suit, semble, allowable) ; 1872, Peo-
ple v. Snellie, cited 48 id. 338 (whether he had
been arrested for vagrancy, allowed); 1872,
Code Civ. Pr. § 2061 (quoted supra); 1873,
]{eed V. Clark, 47 id. 194, 201 (trial Court's dis-
cretion sanctioned ; but here character of the
witness as party was in issue) ; 1874, People i;.
Manning, 48 id. 335, 338 (whether he had ever
been arrested for vagrancy ; not decided) ; 1880,
Hinkle v. R. Co., 55 id. 627, 628, 632 (excluding
inquiries as to particular acts, without distin-
guishing between cross-examination and outside
testimony ; here, whether the witness had taken
a bribe in another matter) ; 1886, Peojile v.
Hamblin, 68 id. 101, 103, 8 Pac. 687 (whether he
had been arrested ; excluded, because an arrest
alone does not show guilt; whether he had been
doorkeeper at a gambling house, knowing it to
be an unlawful business, excluded, on the par-
ticular-act doctrine) ; 1886, People v. Carolan, 71
id. 19.5jl2 Pao. 52 ("whether he had been ar-
rested ' and convicted ; excluded, not noticing
the arrest-question); 1888, Cookrill v. Hall, 76
id. 192, 196, 18 Pac. 318 (whether he had not
1127
been impeached at another trial, excluded) ;
1889, Sharon o. Sharon, 79 id. 633, 673, 22 Pac.
26, 131 (whether she had lunched, with other
men than her husband, at a disreputable liouse ;
whether she had falsely asserted the sanity of
her husband as testator ; excluded, on the par-
ticular-act docti'ine) ; 1890, Davis v. Powder
Works, 84 id. 617, 627, 24 Pac. 387 (fraudulent
official acts, excluded, on the same doctiine) ;
People v. Tiley, ib. 651, 652, 24 Pac. 290 (whe-
ther a married man spent the night at a house of
ill-fame, excluded); Jones v. Duchow, 87 id.
109, 114, 23 Pac. 371, 25 Pac. 256 (whether he
had been arrested and had pleaded guilty, on a
charge of beating a prcstitute, excluded); 1893,
People v. Wells, 100 id. 459, 462, 34 Pac. 1078
(questions as to forgery, marital improprieties,
etc., excluded); 1895, Peojile v. Un Dong, 106
id. 88, 39 Pac. 12 (whether he lived in a house
of ill-fame, and whether he w as connected w ith
a gambling-house, excluded); 1895, Peojde v.
Chin Hane, 108 id. 597, 41 Pac. 697 (that she had
been a prostitute, excluded) ; 1896, People v.
Boss, 115 id. 233, 46 Pac. 1059 (of a woman-
witness, as to iirostitution, adnjitted) ; 1898,
People V. Silva, 121 id. 668, 54 Pac. 146 (that
he had been in prison charged with stealing, ex-
cluded) ; 1898, Pyle v. Pierey, 122 id. 383, 65
Pac. 141 (that she had lived with her husband
before raai'iiage, not allowed) ; 1899, James'
Estate, 124 id. 663, 67 I'ac. 579, 1008 (the
writing of a "highly immoral" book, or un-
lawful intercourse, not admissible, even on
cross-examination) ; 1899, People v. Crandall,
— id. — , 57 Pac. 785 (questions as to witness'
prostitution, etc., not allowed; Temple, J., diss.,
and holding that the trial Court has discretion);
1900, Kasson's Est., 127 id. 496, 59 Pac. 950
("whether the house you were keeping in M.
was a house of prostitution?", excluded); 1900,
People V. Clarke, 130 id. 642, 63 Pac. 138
(cross-examination to misconduct, excluded) ;
1901, People V. Owens, 132 id. 469, 64 Pac. 770
(same); 1901, People v. Harlan, 133 id. 16, 65
Pac. 9 (same); 1901, People „. Warren, 134 id.
202, 66 Pac. 212 (cross-examination to being
indicted, excluded) ; 1903, People v. Derbert,
138 id. 467, 71 Pac. 564 (questions to a defend-
ant as to various aliases, held improper). 3.
Privilege against Disgracing Answers: 1857,
Ex parte Rowe, 7 Cal. 184 (privilege apjilies
" when the answer is not to any matter perti-
nent to the issue and the answer would disgrace
him ") ; 1868, Clark v. Reese, 35 id. 89, 96
(personal liberties with a woman ; undecided) ;
1870, People v. Reinhart, 39 id. 449 (former
conviction, excluded) ; C. C. P. 1872, § 2065
(privilege not to give "an answer which will
have a direct tendency to degrade his character,
unless it be to the very fact in issue, or to a fact
from which the fact in i.ssue would he presumed.
But a witness must answer as to the fact of his
previous conviction for felony " ; this last clause
was added to the section as adopted from the
prior Practice Act, § 408, and apparently an-
§ 987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIT
possible to make use of all the rulings as though they were valid precedents
for every jurisdiction. The shuttlecock citation of decisions, backward and
nulled People ». Reiuhart, supra); P. C. § 89
(lirivilege denied for witness on a charge of ob-
taining money to influence legislative vote) ;
Pol. C. § 304 (same for witness before legislature
or its committee). 4. Conviction of Crime:
C. C. P. 1872, § 2051 (quoted supra) ; 1870,
People V. Eeinhart, sicpra (admitted) ; 1875,
People V. Anianacus, 50 id. 233, 235 (admitted);
1886, People v. Carolan, 71 id. 195, 12 Pac. 52
(misdemeanor, excluded ; unless, semble, in-
volving " moral turpitude and infamy ") ; 1895,
People V. Chin Hane, 108 id. 597, 607, 41 Pac.
697 (kind of felony may be stated); 1900, Peo-
ple V. Putnam, 129 id. 2,08, 61 Pac. 961 (same);
1901, People v. Ward, 134 id. 301, 66 Pac. 372
(verdict, lacking sentence, snffices).
Colorado. 4. Conviction of Crime : Annot.
St. 1891, § 4822 (quoted ante, § 488).
Columbia (Dlstkiot). 2. Scope of Cross-
examinaiion : 1881, Guiteau's Trial, I, 743
(medical man allowed to be asked whether he
was dismissed from a post in an asylum); 1892,
U. S. V. Cross, 20 D. C. 373 (a question as to
jilace of residence was disallowed, in discretion,
because it was directed merely to obtain clues
to further evidence). 4. Conviction of Crime :
1880, U. S. V. Neverson, 1 Mackie 152, 172
(larceny, admitted); Code 1901, § 1067 (quoted
ante, § 488).
Connecticut. 1. Extrinsic Testimony is
excluded: 1856, State v. Eandolph, 24 Conn.
363, 366 ; 1877, State u. Shields, 45 id. 256,
257, 260, 263 (specific instances of into.vieation
excluded, but former prostitution admitted, ap-
parently only as against the prosecutrix in a
rape case, according to § 62, ante) ; 1899, Spiro
I . Nitkin, 72 id. 202, 44 Atl. .13 (that the wit-
ness swore falsely at another trial). 2. Scope of
Cross-examination : 1881, State v. Ward, 49 id.
433, 442 (whether he lived with a woman who
kept a house of ill-fame, allowed) ; 1898, State
V. Ferguson, 71 id. 227, 41 Atl. 769 (whether
he had committed adultery ; discretion of the
trial Court to control); 1902, Dore v. Babcock,
74 id. 425, 60 Atl. 1016 (questions as to divorce
for desertion, held improper, the subject not
tending to "affect the veracity of a witness") ;
1903, State v. Nussenholtz, — id. — , 55 Atl.
689 (question to an accused as to his prior arrest,
excluded). 3. Privilege a,gainst Ziisqracing An-
swers: 1827, Northrop v. Hatch, 6 id. 361, 365
(the privilege does not the less apply because the
crime asked about has been pardoned) ; 1881,
State V. Ward, 49 id. 433, 442, semhle (whether
he lived with a woman who kept a house of ill-
faine, privilege recognized) ; St. 1893, June
14, c. 198 (no privilege sliall be recognized, in
legislative investigations, for facts which "may
tend to disgrace him or otherwise render him in-
famous"). 4. Conviction of Crime : 1856, State
V. Eandolph, 24 id. 363, 365 (such crimes are
provable as disqualified at common law) ; Gen.
St. 1889, § 1098 (quoted ante, § 488).
Delaware. 1. Extrinsic Testimony : 1851,
Kobinson v. Barton, 5 Harringt. 335, 339
1128
("particular acts,'' excluded). 4. Conviction of
Crime: Laws 1859, c. 598, § 3 (quoted ante,
§ 488); 1899, State o. Burton, 2 Marv. 446,
43 Atl. 254 (pointing a pistol; cioss-examination
of defendant as to conviction for a similar act
excluded, as not relevant to credibility).
Floiuda. 2. Scope of Cross-examination :
1898, Eoberson v. State, 40 Fla. 509, 24 So.
474 (that the witness at a trial for assault had
claimed to be feeble-minded, etc., excluded);
1899, Wallace v. State, 41 id. 547, 26 So. 713
(question as to " criminal charges pending
against you," left to trial Court's discretion ; so
also other questions relating to "past life and
history," etc. ; but matters which do not affect
credit should not be brought in). 3. Privilege
againt Disgracing Answers: 1899, Wallace v.
State, 41 Fla. 547, 26 So. 713 (privilege not
recognized). 4. Conviction of Crime: Rev. St.
1892, § 1096 (quoted ante, § 488) ; St. 1901,
c. 4966 (conviction of "any crime except per-
jury " is not to disqualify; but "such conviction
may be given to afi'ect the credibility of the said
witness").
Georcjia. 1. Extrinsic Testiirwny is ex-
cluded : 1860, Weathers v. Barkdale, 30 Ga.
888 (that the witness had borne a bastard
child); 1878, Johnson v. State, 61 id. 305, 307
(adultery); 1886, Pulliam v. Cantrell, 77 id.
563, 565, 3 S. E. 280; 1887, Ratteree v. Chap-
man, 79 id. 577, 4 S. E. 684 (adultery) ; 1896,
Killian v. E. Co., 97 id. 727, 25 S. E. 384 (that
he had been charged with selling liquor ille-
gally). 2. Scope of Cross-examination: Code
1895, § 5293 ("particular transactions . . .
cannot be inquired of on either side," except in
testing the knowledge of an impeaching witness,
on the principle of § 989, post). 3. Privilege
against hisgracin^ Answers: Code 1895, §§3957,
5288 ([irivilege covers matters " which shall tend
to bring infamy or disgrace or public conteni[)t
upon himself or any member of his family ").
4. Conviction of Crime : 1884, Georgia R. Co. v.
Homer, 73 Ga. 251 (larceny, admitted, as a
crimen f aid); 1888, Doggett v. Simms, 79 id.
257, 4 S. E. 909 (same); 1893, Ford v. State,
92 id. 459, 17 S. E. 667 (an unspecified "crime
involving moral turpitude," held admissible);
1894, Coleman v. State, 94 id. 85, 21 S. E. 124
(larceny, admitted); 1896, Killian v. R. Co., 97
id. 727, 25 S. E. 384, semile (illegally selling
liiiuor, admitted) ; 1897, Shaw v. State, 102 id.
660, 29 S. E. 477 (conviction, for the same
crime, of a joint indictee, testifying for the
defendant, received) ; 1903, Andrews v. State,
118 id. 1, 43 S. E. 852 (misdemeanor not in-
volving moral turpitude, excluded).
Hawaii. 1. Extrinsic Testimony: 1901,
Lyman v. Hilo Tribune P. Co., 13 Haw. 453,
457 (extrinsic testimony to specific acts, ex-
cluded). 2. Scope of Cross-examination : 1894,
Republic V. Tokuji, 9 Haw. 648, 552 (whether
he lived under another name elsewhere, held
properly excluded); 1897, Colburn v. Spitz, 11
id. 104 (cross-exaniinatiou to "particular acts
§§ 977-996]
CHAEACTEE, FROM CONDUCT.
§ 987
forward, in and out of their proper jurisdictions, lias done much to unsettle
and to confuse the law. The greatest judicial service that can be ren-
of misconduct," — here, fraudulent bankruptcy
■ — , not allowed) ; 1898, Eepublie v. Luning, ib.
390 (nuestions as to habitual thievery and other
crimes, held proper; "he may be questioned as
to specitie acts"; "the Court has large dis-
cretion"; preceding case not cited) ; 1900,Merri-
court V. Norwalk I. I. Co., 13 id. 218, 220
(trial Court has large discretion). 3. Privilege
against Disgracing Answers: Civil Laws 1897,
§ 1419 (uo claim of privilege against a question
whicli is relevant and material to the matter in
issue " on the ground that the answer may
" disgrace or criminate himself" shall be allowed
unless the Court is of opinion that the answer
"will tend to subject such witness to punish-
ment for treason, felony, or misdemeanor"). 4.
Conviction of Crime: Civil Laws 1897, § 1420
(conviction of "any indictable or other offence"
may be proved) ; 1894, Govt. v. Aloiau, 9 Haw.
399 (" any offence," allowable).
Idaho. 1. Kxtrinsie Testiituywy : Kev. St.
1887, § 6082 (like Cah C. 0. P. § 2051). 2.
Scofe of Gross-examination : Rev. St. 1887,
§ 6082 (like Cal. C. C. P. § 2051); 1899, State
V. Anthony, 6 Ida. 383, 55 Pac. 884 (statute
applied); 1903, State v. Irwin, — id. — , 71
Pac. 608 (questions to an accused, held improper
on the facts). 3. Privilege against Disgracing
Answers: Uev. St. 1887, § 6091 (like Cah CO.
P. § 2065), § 149 (privilege denied for testimony
before Legislature or committee thereof). 4.
Conviction of Grime: Rev. St. 1887, § 6082
("felony," admissible).
Illi.»;ois. 1. Mxtrinsic Testimony is ex-
cluded: 1858, Sheahan v. Collins, 20 111. 329;
1876, Dimick v. Downs, 82 id. 573 (adultery,
illegal sale of liqiioi-) ; 1898, Kippetoe v. People,
172 id. 173, 50 N. E. 166. 2. Scope of Cross-
examination: 1896, Goon Bow v. People, 160
III. 438, 43 N. E. 593, semhle (question whether
the witness kept an opium joint, allowed). 3.
Privilege against Disgracing Answers : Rev. St.
1874, c. 38, § 6 (privilege not to obtain for wit-
ness testifying before Legislature or a committee
thereof); 1899, Hallovvay v. People, 181 111. 544,
54 N. E. 1030, semble (privilege not recognized).
4. Conviction of Crime: Rev. St. 1874, c. 38,
§ 426, c. 51, § 1 (quoted ante, § 488); 1882,
Bartholomew v. People, 104 111. 601, 607 ("in-
famous offence " is provable; the same rule as at
common law for disqualification); 1902, Matzen-
baugh V. People, 194 id. 108, 62 N. E. 546
vthe crimes are to be defined by the common-law
rule as to incompetency; here a conviction for
fraud in scheduling property for taxation was
held not to be "of the class of offences denomi-
nated 'crimen falsi ' " ; of this ruling it may be
said, first, that the Courts should be the last
ones to minimize the civic evil of such a form of
lying, and, secondly, that in the present case,
where the assessor sought to charge the appellant
with taxes, it was absurd to hold that he could
not be discredited by a conviction for falsifying
in just such a transaction).
Indiana. 1. Extrinsic Testimony: Theprin-
1129
ciple has been always recognized, except in an
early case (1853, Hill v. State, 4 Ind. 112;
bastard V, other intercourse before gestation-time,
allowed); but the distinction between conduct
impeaehiug character and conduct showing con-
sent in rape eases {ante, § 200), and conduct
showing other parentage in bastardy cases {ante,
§ 133), has not always besn observed : 1841,
Walker v. State, 6 Blackf. 4 (falsehood); 1859,-
Townsend v. State, 13 id. 358, semble (bastardy;
other intercourse before gestation -time, ex-
cluded); 1859, Shattuck v. Myers, ib. 60, semble
(unchaste conduct of the daughter in a seduc-
tion case); Bersch v. State, ib. 436 (passing a
counterfeit bill); 1860, Long v. Morrison, 14
id. 699 ("a single act of immorality"); 1861,
Wilson v. State, 16 id. 393 (rape; the prosecu-
trix' credibility as a witness not allowed to be
impeached by "a particular act of immoral-
ity"); 1879, Cunningham v. State, 65 id. 379,
381 (unchaste conduct); Meyncke v. State, 68
id. 403, semble (unchaste conduct); 1884, South
Bend V. Hardy, 98 id. 580 (in general); 1888,
Bedgood V. State, 115 id. 275, 281, 17 N. E.
621 (rape ; intercourse with a third person ad-
mitted; reasoning obscure); 1895, Griffith v.
State, 140 id. 163, 39 N. E. 440 (excluded).
2. Scope of Gross-examination : 1841, Walker v.
State, 6 Blackf. 3, semble (bastardy; intercourse
of the complainant with others, excluded as
"irrelevant"); 1853, Hill v. State, 4 Ind. 112
(bastardy; other intercourse before gestation-
time allowed); 1859, Townsend v. State, 13 id.
368 (like Walker's case); 1859, Bersch v. State,
ib. 436 (passing a countei-feit bill, excluded, as a
"particular act "); 1877, Farley v. State, 57 id.
331, 333 (excluding even on cross-examination a
question as to "an isolated act"); 1884, South
Bend v. Hardy, 98 id. 679, 584 (the trial Court
has discretion to pei-mit, "if by affecting the
credibility of the witness, it will subseiTe jus-
tice"; matter.^ of sexual incontinence, semble,
do not so affect credibility; here a former fraud
of the plaintiff was held not improperly ex-
cluded); 1884, Bes.sette v. State, 101 id. 85, 88
(" It is proper, withiu the bounds of propriety, '
to be controlled by the trial Court, that the
character and antecedents of a witness may be
subjected to a test on cross-examination "; here,
a rape on a minor ; the prosecutrix' indecent
conduct with her stepfather allowed to be in-
quired into); 1886, Spencer v. Bobbins, 106 id.
580, 686, 5 N. E. 726 (action for partition of
estate ; cross-examination to adulterous preg- .
nancy, held properly excluded; "it may be:
proper, however, under extraordinary circum-
stances," to ask as to character and antecedents,
but "this is a matter within the sound discre-
tion of the nisi prius Court"); 1888, Bedgood
V. State, 115 id. 279, 17 N. E. 621 (rape ;' inter-
course with a third person admitted ; reasoning
obscure); 1894, Parker v. State, 136 id. 284, 35
N. E. 1105 (of a defendant-witness, whether he
had not been arrested and prosecuted, held
proper in disoretion); 1895,-Blough v. Parry,
§ 987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXli
dered to-day is to keep the line of precedents clear and inflexible in each
jurisdiction.
144 id. 463, 481, 40 N. E. 70, 43 id. 560 (cross-
examination to particulai' misconduct, allowable
in trial Court's discretion); 1897, Sliears u.
State, 147 iU. 51, 46 N. E. 331 (like Blough v.
Parry ; here, questions a3 to former larceny) ;
1898, Miller v. Dill, 149 id. 326, 49 N. E. 272,
semble (cross-examination of a female witness as
to acts of dishonesty or immorality, not improp-
erly allowed in trial Court's discretion); 1898,
Vancleave v. State. 150 id. 273, 49 N. E. 1060
(whether a defendant-witness had been con-
victed of larceny and was under indictment for
robbery, allowed); 1898, Ellis v. SUte, 152 id.
326, 52 N. E. 82 (questions "as to certain
prosecutions against him for criminal offences,"
allowed); 1900, Whitney v. State, 154 id. 573,
57 N. E. 398 (whether the witness, with a
"gang," committed frequent assaults, excluded).
3. PnoLlege against Disgracing Aiiswers : 18ii,
Walker v. State, 6 BUckf. 1 (obscure); 1853,
Hill V. State, 4 Ind. 112 (bastardy ; other in-
tercourse by the complainant ; privilege repudi-
ated); 1859, Townseud v. State, 13 Ind. 358
(same eyidence ; obscure ruling); 1859, Shat-
tuck V. Myers, ib. 50 (unchaste conduct by the
daughter in a seduction case ; privilege recog-
nized); 1880, Smith v. Yaryan, 69 id. 447
(same ; but allowing the question for determin-
ing paternity, and thns apparently abandoning
the privilege ground); 1884, South Bend v.
Hardy, 98 id. 583 (privilege repudiated for all
matters relevant to the issue or affecting credi-
bility) ; 1888, Bedgood v. State, 115 id. 275,
280, 17 N. E. 621, semble (rape ; question as to
intercourse with others ; privilege not recog-
nized). 4. Conviction of Crime : Rev. St. 1897,
§ 519 (auy fact formerly rendering incompetent
may be shown to affect creilihility).
Indian Tebeitory. 1. Extrinsic Testimony :
1896, Oxier v- U. S., 1 Ind. T. 93, 38 S. W.
331 (excluded, under the Arkansas statute
quoted supra). 2. Scope of Cross-examination:
1896, Oxier v. U. S., 1 Ind. T. 93, 38 S. W.
331 (pointing out that the Arkansas statute
siipri is to be treated as excluding extrinsic
testimony only; allowing such a cross-examina-
tion as will disclose " something of their char-
acter, antecedents, and credibility"; subject to
the trial Court's power to prevent " an unrea-
sonable or abusive cross-examination"; here
admitting a question as to an arrest forlarcenv);
1897, Oats V. U. S., 1 id. 52, 38 S. W. 673
(same); 1902, Williams v. U. S.,'— id. — ,
69 S. "W. 871 (Oxier v. U. S., approved); 3.
Privilege Oygainst Disgracing Answers: 1896,
Oxier v. IT. S., 1 Ind. T. 93, 38 S. W. 331
(recognized ; here for a question as to former
arrest).
Io^vA. 1. Extrinsic Testimony is excluded :
1848, Carter v. Cavenaugh, 1 Greene, 171, 175
(in general); 1859, State ii. Sater, 8 la. 420, 424
(reputation and arrest as a horse-thief). 2.
Scope of Cross-examinatAon : 1879, Madden ».
Koester, 52 id. 693 (fraudulent transactions,
semble, in this case excluded because used as
a mere pretence for attacking character of the
defendant, not the witness); 1888, State v.
Pugsley, 75 id. 743, 38 N. "W. 498 (question as
to being in jail at the time, held proper, since " it
is competent to ask a witness what is his occu-
pation and where he resides"; this is a quibble ;
here the witness was only under indictment and
not yet tried); 1895, State v. Osborne, 96 id. 281,
65 N. "W. 1 59 (the witness' occupation, admitted) ;
1897, State v. Watson, 102 id. 651, 72 N. W.
283 (to a defendant, as to using an assumed
name, etc., allowed in discretion ) ; 1898, State i».
Chingren, 105 id. 169, 74 N. W. 946 (questions
as to occupation, allowed, in trial Court's dis-
cretion); 1899, State v. Abley, 109 id. 61, 80
N. W. 225 (question as to some unspecified
crime, held improper); 1900, Myers' Estate, 111
id. 584, 82 N. W. 961 (whether the witnejis had
not "stolen" his own buggy, held improper);
1902, State v. Hogan, 115 id. 455, 88 N. W.
1074 (whether he had ever been in a reform
school, not allowed) ; 1903, Germinder v. Ma-
chinery M. I. Ass'n, — id. — , 94 N. W. 1108
(whether he had been accused of burning a
barn, excluded); 1903, Livingston o. Heck, —
id. — , 94 N. W. 1098 (mortgage claim;
whether the witness had not been arrested on
the charge of selling the mortgaged property in
controversy " might properly have been received
as affecting his credibility "). 3. Privilege
against Disgracing Aiiswers: 1874, Brown v.
Kingsley, 38 id. 220, 221 (sednction ; illicit
intercourse with other men, held privileged
under the statute); 1888, Mahanke v. Cleve-
land, 76 id. 405, 41 N. W. 53 (question as to
fraud in a deed, held not to appear jirivileged
on the facts ; " no rule applicable to all ca.ses is
possible"); Code 1897, §§4612, 4613 (answer
tending " to expose him to public ignominy,"
privileged, except as to conviction for felony ;
and in prosecutions for gaming and liquor
offences). 4. Conviction of Crime: Code 1897,
§ 4602 (((uoted ante, § 488; facts formerly dis-
qualifying may now be used to discredit); § 4613
(witness may be asked as to "conviction of a
felony"); 1887, Hanners v. McClelland, 74 la.
318, 322, 37 N. W. 389 (not of any crime); 1890,
State V. O'Brien, 81 id. 96, 46 N. W. 752 (felony
in general); 1901, Palmer v. E, Co., 113 id. 442,
85 N. W. 756 (under § 4602, a conviction for
selling licpior without paying the Federal tax
■was excluded, as not receivable at common law;
in general, a Federal conviction is not admissible
under § 4602 ; whether under § 4613, not de-
cided); 1903, State v. Carter, — id. — , 96
N. W. 710 (cheating by false pretences, a felony;
admitted).
Kansas. 1. Extrinsic Testimony is ex-
cluded : 1888, State v. Johnson, 40 Kan. 266,
269, 19 Pac. 749. 2. Scope of Cross-examina-
tion : 1886, State v. Pfefferie, 36 id. 90, 92, 12
Pac. 406 (the limits held rest largely in the trial
Court's discretion ; here admitting questions
as to former convictions for illegal liiiuor-sell-
ing) ; 1890, State v. Remain, 44 id. 719, 25
1130
§§ 977-996]
CHAEACTEE, FROM CONDUCT.
987
In general, the state of the various laws on the foregoing topics may be
thus summarized: (I) Extrinsic testimony/ to particular acts is universally
Pac. 225 (questions to an accused as to other
crimes, held not in excess of discretion, or at
any rate not prejudicial error) ; 1894, State v.
Heed, 53 id. 767, 37 Pac. 174 (questions as to
previous adultery, etc., held improperly allowed
on the facts) ; 1894, State v. Wells, 54 id. 161,
37 Pac. 1005 (questions to an accused as to prior
acts of violence, held properly allowed in dis-
cretion) ; 1898, State v. Greenburg, 59 id. 404,
53 Pac. 61 (questions as to previous civil arrests,
allowed ; the trial Court to prevent unreason-
able use of such cross-examination to specific
facts ; Doster, C. J., diss., because a mere ar-
rest does not involve the fact of guilt) ; 1902,
State u. Abbott, 65 id. 139, 69 Pac. 160 (rape ;
questions as to the prior conduct of the chief wit-
ness of the prosecution, held proper). 3. Priv-
ilege against Disgracing Answers: 1886, State
V. Pfefferle, supra (not recognized). 4. Ccmvic-
tion of Crime: Gen. St. 1897, c. 95, § 330
(quoted ante, § 488) ; 1886, State v. Pfefferle
(cited supra) ; 1891, State u. Probasco, 46 Kan.
310, 26 Pac. 749 (larceny, admitted) ; 1896,
State V. Park, 57 id. 431, 46 Pac. 713 (larceny,
held admissible).
Kentucky. 1. Extrinsic Testimony is ex-
cluded: C. C. P. 1895, § 597 (impeachment "by
evidence of particular wrongful acts," except
conviction of felony, is to be excluded) ; 1821,
Hnme «. Scott, 3 A. K. Marsh. 261 (in gen-
eral); 1857, Thurman v. Virgin, 18 B. Monr.
792 (hog-stealer ; prostitute) ; 1859, Henderson
V. Haynes, 2 Mete. 348, semble (in general) ;
1868, Taylor v. Com., 3 Bush 511 (membership
in a clique "banded to swear out negroes");
1869, Young v. Com., 6 id. 315 (hog-stealer) ;
1880, Campbell v. Bannister, 79 Ky. 205, 208 ;
1901, Welch V. Com., — Ky. — , 60 S. W. 185,
948, 1118 (sherilfs testimony to a pending war-
rant for arrest of witness, excluded) ; 1901, Kob-
ei'ts V. Johnson, — Ky. — -, 64 S. W. 526. 2,
3, 4. Scope of Cross-examination, Privilege against
Disgracing Answers, and Conviction of Crime;
these three topics have in the last two decades
become hopelessly confused and uncertain in the
decisions of this State ; nothing but a new ex-
punging statute, recurring to first principles,
' can avail to clarify the law; one of the sources
of coufusion has been the injudicious practice of
excluding certain formal opinions Irom ofiicial
publication: C. C. P. 1895, § 697 (cited supra;
compare the interpretation of the similar
California statute, mpra) ; 1831, Sodnsky v.
McGee, 5 J. J. Marsh. 621 (privilege applied
to a fact "reflecting on his character, unless it
be pertinent to the issue independently of its
tendency to affect character"; here, a question
as to playing cards with a negi-o before or
during the afl'ray was held to embody facts
partly material and partly immaterial, and
therefore objectionable); 1870, Pence v. Dozier,
7 Bush 133 (seduction; whether the witness had
had intercourse with the plaintiff's daughter,
held privileged); 1890, Mitchell v. Com., — Ky.
— , 14 S. W. 489 (whether he had been in a
VOL. II. —9
State prison, held not privileged ; questions which
" ouly tend to disgrace a witness, he may be com-
pelled to answer";no authority cited); 1892, Bur-
dette V. Com., 93 id. 77, 18 S. W. 1011 (question.s
whether he had been convicted of stealing or
sent to the workhouse for breaking and .stealing;
admitted, such tests to be applied "in a jiroper
and pertinent manner and under control of the
Court"; privilege as to disgracing answers, rec-
ognized); 1892, Roberts v. Com., — id. — , 20
S. W. 267 (allowing questions as to indictments
for robbery, for conspiracy, etc.; the opinion er-
roneously assuming this question to have been
settled in Burdette v. Com.); 1895, Saylor v.
Com., 97 id. 190, 30 S. W. 390 (question to an
accused as to other crimes; present question not
raised); 189,'i, Com. v. Wilson, — id. — , 32
S. W. 166 (detaining a woman for carnal knowl-
edge; questions to the prosecutrix as to her
adultery excluded, because " particular instances
of moral turpitude" are inadmissible, reputa-
tion alone being admissible; no citations); 1896,
Warren v. Com., 99 id. 370, 35 S. W. 1028
(whether the defendant-witness had recently been
at work, whether a witness had not made it a
business to bleed election-candidates, how often
he had been in jail, etc. ; admitted as within the
trial Court's discretion; though " we are not to be
understood as holding that counsel are to be al-
lowed unrestricted libei ty in cross-examination of
this character, or that a witness is to be conijielled
to submit to an exploration of the most remote
passages of his past life, by means of fishing
questions in regard to scandalous or discreditable
acts "); 1897, Leslie v. Com., — id. — , 42 S. W.
1095 (whether he was not a gambler, frequented
a house of ill-fame, etc., allowed; but notwhether
he had not been arrested for certain offences);
1898, McCampbell v. McCampbell, 103 id. 745,
46 S. W. 18 (privilege applies to collateral
matters only); 1899, Baker v. Com., 106 id.
212, 50 S. W. 64 (inquiry as to indictments, etc.,
at a time long previous, held improper on the
facts); 1899, Williams v. Cora., — id. — , 50
S. W. 240 (that defendant had just corne from
the penitentiary, held inadmissible, until de-
fendant himself testifies); 1899, Parker J). Com.,
— id. — , 51 S. W. 573 (questions as to in-
dictments for acts of violence, excluded as
involving " particular wrongful acts " under
the statute); Pennington v. Com., — id. — ,
61 8. W. 818 (same); 1901, Welch v. Com., —
id. — , 60 S. W. 948, 1118, 1131 (defendant as
witness is privileged not to answer as to having
been "accu-sed of any crime, indicted for any
crime, or convicted of any misdemeanor"; de-
claring Burdette v. Com., Roberts v. Com., and
Mitchell V. Com. overruled in this respect; the
opinion by Dnffy, J., loosely ignores the distinc-
tions between proving particular acts by extrinsic
testimony {supra, § 979), cross-examining to such
acts {supra, §981), and claiming. a privilege
not to answer {supra, § 984), and is useless;
Payntcr, C. J., Hobson and White, J.T., diss.;
the opinion of Hobson, J., points out this con-
1131
§ 987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
conceded to be inadmissible. Sporadic rulings of admission have usually
been due to some other principle misapplied. (2) For cross-examination, the
fusion, and justly complains of the reasoning of
the majority opinion); 1901, Ashcraft v. Corn.,
— id. — , 60 S. W. 931 (ijuestions to an ac-
cused as to other indictments against him, held
improper; approving the preceding case); 1901,
Howard ti. Com., — id. — , Bl S. W. 756
(similar; the same jndges dissenting); 1901,
Johnson v. Com., — id. — , 61 S. W. 1005
(question as to an indictment for perjury on a
former trial, excluded ; following Ashcraft v.
Com.); 1901, Welch w. Com., — id. — , 63
S. W. 984 (construing § 597;" reviewing the
preceding cases, approving those of Leslie,
Baker, Parker, and Penington, and disapprov-
ing those of Burdette and Roberts as decided
without considering the statute ; now pointing
out (1) that questions as to specific wrongful
acts not proved by a judgment of conviction
are improper as seeking evidence of character,
although questions as to " his life and his as-
sociates " are proper, and questions as to wrong-
ful acts relevant to the cause are proper; (2) that
questions as to mere indictments or accusations
are improper, except so far as they indicate bias,
according to § 949, ante ; (3) that an accused as
a witness is in no less favorable a position than
an ordinary witness; Paynter, C. J., and Hob-
son, J., diss.); 1902, Trabue v. Com., — id. — ,
66 S. W. 718 (question as to whom the wit-
ness lived with, held proper): 1902, Ashcraft u.
Com., — id. — , 68 S. W. 847 (question as to
a prior arrest, excluded); 1903, Hensley i>. Com.,
— id. — , 74 S. W. 677 (questions as to prior
indictments, excluded).
Louisiana. 1. Extrinsic Testimony: 1843,
Stanton v. Parker, 5 Rob. 108, 109, semble (gen-
eral principle); 1852, State v. Parker, 7 La. An.
83, 85 (excluding " particular acts or charges,"
and regarding as not thereby excluded testimony
that the witness had the character of defraud-
ing, extorting, and cheating, and that he was
idle and dissolute and had lewd associations);
1892, State v. Jackson, 44 id. 159, 161, 10 So.
600 ("collateral facts, and particular inquiries as
to any particular act or any particular asso-
ciates," excluded; here, the witness' lewd and
criminal associations); 1893, State t). Taylor, 45
id. 605, 608, 12 So. 927 (general principle);
1898, State v. Wiggins, 50 id. 330, 23 So. 334.
2. Scope of Cross-examination: 1893, State v.
Murphy, 45 La. An. 958, 960, 961, 13 So. 229
("Have you ever been arrested for stealing?"
allowed; the trial Court's discretion controlling
to prevent "unreasonable or oppressive cross-
examination"; yet on re-hearing the Court
shows ignorance of the distinction between
cross-examination and outside testimony, and
leaves the rule uncertain); 1895, State v. Du-
doussat, 47 id. 977, 17 So. 685 (assumption
of false name bv prosecuting witness, excluded);
1896, State v. Southein, 48 id. 628, 19 So. 668
(a defendant testifying for himself ; question
whether he was then charged with another
olfence, admitted); 1901, State v. Haab, 105
La., 230, 29 So. 725 (trial Court's discretion
1132
controls); 1903, State v. Callian, 109 id. 346,
33 So. 363 (question to a defendant, "How
many times have you been before the Court ? "
held proper); 1903, State v. Ca,sey, 110 id. 712,
34 So. 746 (to a del'eniiant, "How many times
have you been in trouble 1 " allowed).
Maine. 1. Ssctriiisic Testimony is excluded:
1841, Phillips V. Kingfield, 19 Me. 375, 378
( " no particular acts of immorality or crime can
be stated"); 1842, Halley v. Webster, 21 id.
461, 464 (language indicating an abandoned
character); 1877, State v. Morse, 67 id. 428.
2. Scope of Cross-exarnination : 1876, State v.
Carson, 66 id. 118 (whether he assaulted F.
while drunk, excluded; impeachment by other
crimes is not permissible on cross-examination;
Holbrook v. Dow, Mass., infra, followed).
3. Privilege again^ Disgracing Answers : 1831,
Tillson u. Bowley, 8 Me. 163 (bastardy; the
complainant's intercourse with another piivi-
leged, because here criminal); 1841, Low v.
Mitchell, 18 id. 372, 374 (.same). 4. Conviaion
of Crime : Rev. St. 1883, c. 82, § 105 (quoted
ante, § 488); 1873, State v. Watson, 63 Me.
128 (any criminal offence); 1876, State v.
Watson, 65 id. 79; 1892, State v. Farmer, 84
id. 440, 24 Atl. 985 (a conviction twenty-seven
years before, admitted; "time may soften the
effect of such a record, but cannot destroy its
applicability "; hero, for illegal liquor-selling).
Maryland. 2. Scope of Cross-examination :
1885, Smith v. State, 64 Md. 25 ("anything
which will tend to throw light upon his char-
acter " as to credibility is allowable, subject to
the discretion of the trial Court to some extent;
here a question as to having been in jail was
allowed); 1902, Bonaparte v. Thayei-, 95 id.
548, 52 AtL 496 (indictment excluded; "that
fact alone is not always equivalent to guilt ").
3. Privilege against. Disgracing Answers : 1885,
Smith V. State, supra (obscure); 4. Conviction
of Crime : Pub. Gen. L. 1888, Art. 35, § 5
(conviction of an "infamous crime," admis-
sible); 1894, McLaughlin v. Mencke, 80 Md.
83, 30 Atl. 603 (whether one has been "in jail,
the penitentiary, or the State prison, or any
other place that would tend to impair his cred-
ibility," admitted).
Massachusetts. 1. Extrinsic Testimony
has always been exclnded: 1825, Com. v. Moore,
3 Pick. 194, 196, semble (bastardy; intercourse
of the prosecutrix with others, not received to
impeach credit); 1857, Gardner w. Way, 8 Gray
189 ("particular acts of misconduct" not ad-
missible; here, false accounts); 1859, Holbrook
V. Dow, 12 id. 358 (quoted iiifra); 1870, Com.
V. Regan, 105 Mass. 593, semble (rape ; former
declarations of pregnancy, etc., exclnded); 1872,
Com. u. McDonald, 110 id. 406, semble; 1885,
Jennings r. Machine Co., 138 id. 594, 598
(here, commercial dishonesty; "independent
evidence of particular acts of misconduct " inad-
missible. 2. Scope of Cross-examination : the
state of the law in Massachusetts has been marked
by some wavering between the two types of rules
§§ 977-996]
CHAEACTEE, FROM CONDUCT.
§987
rule of the trial Court's discretion is (in name, at least) the most widely
adopted. The discretion, however, is in practice very often interfered with.
described as (2) and (3) ante, in § 983, — i. e.
Vetween the rule leavinj; the examination to tlie
disei-etion of the trial Judge, and the rule ex-
cluding entii'ely ail exauiiuation as to facts
reflecting on character. In 1843, in Hathaway
I.. Crocker, 7 Mete. 266, in the well-known pas-
sage already quoted ante, § 944, Chief Justice
Shaw laid down the general doctrine of the lati-
tude of cross-examination; in which he leaves
to ' ' the sound discretion of the Court " such
questions as aim " to test the jiuiity of princi-
ple " of tile witness, "his life and habits," " and
the like," "for the purpose of exhibiting the
witness in his true light to the jury." The
confusion seems then to have started with the
opinion in Com. v. Shaw, 4 C'ush. 593 (1849),
where questions put to a witness for the prose-
cution, asking whether he had not secretly
opened letters of the defendant, and having for
their express object " to test the moral sense of
the witness," were held properly excluded ;
Dewey, J., for the Conrt, justified this on two
grounds, — first, that these circumstances, as
detracting from the moral credit of the witness,
were not competent, and secondly, that the
general discretion of the trial Court as to cross-
examination {ante, § 944) would suffice to sup-
port the exclusion. Then in Com. v. Savory,
10 id. 535, 537 (1852), and Com. v. Hills, ib.
630, 532, questions, excluded below, as to the
sexual immorality of a witness for the prosecu-
tion on a charge of receiving stolen goods, were
lield to have been within this same discretion of
the trial Court, that discretion covering " new
and entirely collateral matters." Yet, in 1854,
in Smith v. Castles, 1 Gray 108, 112, questions
to a witness, allowed below, as to having been
expelled from the bar for perjury, were held im-
proper ; the trial Court's discretion was con-
ceded, but here it was "carried too far," i. e. in
going beyond " his ordinai-y pursuits in life, and
the like," and allowing inquiry into "certain
charges of misconduct". In Com. v. Quin, 5
id. 479, 480 (1855), a question why the witness
had changed his name was held rightly excluded
as "immaterial"- In Gardner v. Way, 8 id.
189 (1857), the plaintiff, relying on his account-
books as proof of goods sold, was not allowed to
be impeached by outside evidence of former dis-
honest charges; and without any distinction as
to extrinsic testimony, it was said that " nothing
is more clear than that the character of a witness
for truth and veracity is not to be impeached by
proof of any particular act of misconduct " irrel-
evant to the case. In 1859, in Holbrook v.
Dow, 12 id. 357, a cross-examination on facts of
a similar .sort, allowed below, " under the lati-
tude of a cross-examination and to test the
credibility," was held erroneously allowed; and
the strict rule (3) of total exclusion was clearly
laid down, by Merrick, J.: " It is a fixed and
established rule in the law of evidence that it is
not competent, for the purpose of creating a
distrust of the witness' integrity and of thus
disparaging his testimony, to prove particular
1
acts of alleged misbehavior and dishonesty in
relation to matters foreign to all qiiestiims
which are involved iu the trial." T'le next
case, however, reverts to the discretion rule:
1865, Pre.scott v. Ward, 10 All. 204, -209 (prom-
issory note; questions, excluded below, as to
sexual misconduct and attempted blackmail,
held to be within the discretion of the trial
Court .so far as they tended "to disparage her
character"; no authoiities cited). The next
ruling declares a question, excluded below, to
have been inadmissible, saying nothing about
discretion: 1870, Com. t. Eegan, 105 Mass.
593 (rape ; former intercourse, and admissions
of intercourse, by the prosecutrix; no authorities
cited). In Com. v. Mason, ib. 163, 168, how-
ever, questions as to a former attempt to suborn
a witness and as to a forgery were held to he
within the discretion of the trial Court to exclude
as "collateral and irrelevant." Then, in 1872,
Com. V. McDonald, 110 id. 405 (rape; ques-
tions to the prosecutrix as to having been a
common seller of liquor illegally), the discretion
of the trial Court in excluding was sanctioned,
the matters here having " a very remote bearing,
if any at all, upon her general character for
chastity." In Jennings v. Machine Co., 138 id.
594, 697 (1885), facts affecting commercial hon-
esty, coming in without objection in some un-
specified way, were held proper for the jury to
consider; whether there should be special limits
to the relevancy of such facts, was expressly re-
served; whether the facts in question could
have been specifically asked for on cross-exam-
ination, was not intimated. Finally, in 1888,
the matter seems to have been settled by Com.
V. Schaff'ner, 146 id. 512, 515, 16 N. E. 280,
where an expert testifying for the defence on a
charge of milk-adulteration was asked to iilentify
a letter from him as official assayer making a
corrupt offer to one whose vinegar has been
found deficient; the question and the introduc-
tion of the letter were held improper: " We are
aware that in England and in some of the
United States this latitude of cross-examination
has sometimes been allowed, though not with-
out protests that the practice ought to be re-
stricted. In Massachusetts the rule has been
that a witness cannot be asked on cross-examin-
ation, iu order to affect his credibility, about
his part in transactions irrelevant to the issue
on trial. . . We are satisfied that both witnesses
and parties ought to be protected from being
obliged to encounter such collateral charges."
But in the same volume the discretion rule was
reverted to : 1888, Sullivan v. O'Leary, 146 id.
322, 15 N". E. 775 (slander; cross-examination
of the plaintiff to complaints of slander and foul
language against the plaintiff by other persons,
held improperly allowed in excess of the trial
Court's discretion ; Com. a. Schaffner not cited);
and it is hard to say what the fixed rule is to
be. Since the foregoing cases no settlement has
been reached : 1902, Com. v. Foster, 182 id.
276, 65 N. E. 391 (trial Court's discretion in
133
§987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
to the detriment of the law's certainty. The contrast, nevertheless, is clear
between this and the rule of absolute prohibition, on the one hand (which
general controls). 3. Privilege against Disgrac-
iiuj Answers: 1841, Dewey, J., in Com. v.
Turner, 3 Mete. 25 (privilege recognized); 1852,
Com. V. Savory, 10 Gush. 535, 537 (left unde-
cided); St. 1895, c. 355, § 5 (lu election in-
quests, no person is to Iw excused tecanse an
answer or document may " disgrace him or
otherwise render him infamous"). 4. Conviction
of Crime: Pub. St. 1882, c. 168, § 19, Revised
Laws 1902, c. ,175, §21 (quoted ante, §488);
1867, Com. V. Bonner, 97 Mass. 587 (larceny,
breaking and entering, rescuing a pri.soner, ad-
mitted); 1868, Com. V. Gorham, 99 id. 420
( ' ' conviction " involves not merely the verdict
of the jury but also the judgment of the Court);
1884, Gertz v. Fitchburg E. Co., 137 id. 77
(conviction in a Federal Court, admitted; more-
over, " the statute puts all convictions of crime
on the same footing," including, " it would seem,
those which formerly would not have been ad-
missible at all"); 1900, Scannell v. R. Co., 176
id. 170, 57 N. E. 341 (conviction of crime under
a statute afterward.? held unconstitutional, held
admissible, the effect to be for the jury); 1903,
O'Connell v. Dow, 182 id. 541, 66 N. E. 788
(conviction as accessory to bribery).
MrcHiGAX. 1. Extrinsic Testimony is ex-
cluded: 1867, Wilbur v. Flood, 16 Mich. 44
(in general); 1879, People v. Knapp, 42 id. 267,
3 N". W. 927 (sexual improprieties); 1880, Peo-
ple V. Whitson, 43 id. 420, 5 N. W. 454 (pros-
titution ; decided ou another point); 1881,
Hamilton v. People, 46 id. 188^ 9 N. W. 247,
semble (bastardy proceedings; intercourse with a
thiril perdon at a distant period); 1882, Driscol]
V. People, 47 id. 416, 11 K W. 221 (crimes);
1886, People v. Mausaunau. 60 id. 15, 21, 26 N.
W. 797 (crimes); 1897, Kingston v. R. Co., 112
id. 40, 70 N. W. 315, 74 N. W. 230 (drunkenness,
etc.). 2. Scope of Cross-examination : The
satisfactory rnle of Wilbur v. Flood has been ad-
hered to with fair consistency, except in People
V. Mills, a careless aberration which ought never
to have oecurred; 1867, Wilbur v. Flood, 16
Mich. 43 ("such collateral matters as may en-
able the jury to appreciate their [the witnesses']
fairness and reliability"; "a large latitude is
given, where circumstances seemed to justify it,
in allowing a full inquiry into the history of
witnesses and into many other things tending to
illustrate their true character"; so that within
the trial Court's discretion, the questions may
cover " all antecedents which are really signifi-
cant, and which will explain his credibility ";
here the fact of former confinement in the State
Prison was held admissible) ; 1871, Arnold v.
Ifye, 23 id. 295 (Cooley, J. : "very much ought
to be left to the discretion of the circuit judge ";
" when the evidence may or may not have been
.significant, according to circumstances, arbitrary
rules of admission and exclusion . . . should
not generally be allowed " ; here the witness'
character was being rehabilitated); 1872, Gale
V. People, 26 id. 157 (questions as to former
arrests, etc., excluded, merely because the de-
1134
fendant, by making a statement, did not become
an ordinary witness); 1873, Beebe v. Knapp,
28 id. 53, 72 (discretion-rule applied, here to
admit questions as to sexual misconduct, in an
action for deceit); 1874, Hamilton v. People,
29 id. 183 (whether he had been charged with
crime, or had deserted from the army, allowed)-
1875, Bis.sell v. Starr, 32 id. 297 (examination
into past life and character, held to be largely in
the trial Court's discretion); 1878, Saundei-s v.
People, 38 id. 218 (former rascality of an in-
former, in dealing with the defendant, inquired
into to test credibility); 1879, People v. Knapp
42 id. 267, 3 N. W. 927 (witne.<is to adultery,
allowed to be asked as to sexual improprieties
with other persons); 1880, People v. Whitson,
43 id. 420, 5 N. W. 454 (questions as to prosti-
tution, allowed) ; 1880, People v. Niles, 44 id
608, 7 N. W. 192 (former charge of theft, ad-
mitted, semble); 1881, Marx v. Hilsende<»en
46 id. 337, 9 N. W. 439 (arrest for pension-
fraud; trial Court's exclusion in discretion, af-
firmed); 1881, Hamilton v. People, ib. 188, 9
N. W. 247, semble (bastardy; questions as to
illicit intercourse by the complainant beyond
the period of gestation, admissible); 1882, Dris-
coU V. People, 47 id. 417, 11 N. W. 221 (arrest
for robbery, admitted) ; 1890, Helwig o. L,is-
cowski, 82 id. 621, 46 N. W. 1033 (arrest and
conviction; excluding discretion affirmed); 1892,
People V. Harrison, 93 id. 596, 53 N. W.
725 (woman's unchastity ; cumulative questions
rightly excluded in trial Court's discretion);
1892, People v. Foots, ib. 38, 52 N. W. 1036
(that he had been arrested for another crime,
allowed); 1892, People v. Kahler, ib. 625, 630,
53 N. W. 826 (whether he was in the habit of
drinking, excluded); 1893, People v. Mills, 94
id. 630, 637, 54 N. W. 488 (cross-examination
to chastity; "lack of chastity cannot be u.sed to
impeach the credibility of a female witness";
nothing said about the trial Court's discretion;
seven decisions cited from other jurisdictions,
none from Michigan); 1895, People v. Suther-
land, 104 id. 468, 62 N. W. 566 (how many
times he had been drunk since the affair, ex-
cluded; but whether he had been arrested for
being drunk, semble, admitted); 1897, Kingston
V. R. Co., 112 id. 40, 70 N. W. 315, 74 N. W.
230 (as to "what his past life had been and
what company he had kept in the past," allowed ;
here, as to drunkenness, keeping a low saloon,
etc.) ; 1897, People v. Parmelee, 112 id. 291, 70
N. W. 577 ("a thorough examination into his
past life," held proper); 1899, People v. Mc-
Arron, 121 id. 1, 79 N. W. 944 (left to discre-
tion of the trial Court ; see quotation supra,
§ 983) ; 1900, People ... Gotshall, 123 id. 474,
82 X. W. 274 (questions as to witness' attempt
at suicide, wife-beatiug, arson, etc., excluded,
where the cross-examiner had no expectation
that the facts would be admitted and the attempt
was merely to raise suspicion ); 1900, People o.
Turney, 124 id. 542, 83 N. W. 273 (questions as
to proposals to steal cattle, allowed); 1901,
§§ 977-996]
CHARACTER, FROM CONDUCT.
§ 987
obtains in perhaps half a dozen jurisdictions) and the rule of absolute license,
on the other hand (which is in this country nowhere conceded). (3) The
Lunge V. Wiegand, 125 id. 647, 83 N. W. 109,
{how many times the witness' husband had been
an-ested, etc., exehided); 1901, People v. Hig.
gins, 127 id. 291, 86 N. W. 812 (certain cross-
examinations to character, lieki proper) ; 1901,
Travis v. Stevens, ib. 687, 87 N. W. 85 (cross-
examination to illicit relations, excluded, citing
People V. Mills). 3. Privilege against Dis-
gracing Answers is not recojinizei: 1867, Wilbur
V. Flood, 16 Mich. 43, semble; 1869, Clemens v.
Conrad, 19 id. 174, semble ; 1871, Strang v. Peo-
ple, 24 id. 1, 7 (rape prosecutrix); 1879, People
V. Knapp, 42 id. 267, 3 N. W. 927 (witness to
adultery) ; 1880, People v. Whitson, 43 id. 620,
5 N. W. 454 (prostitution); 1888, People v.
McLean, 71 id. 309, 38 N. W. 917, semble (rape
prosecutrix). 4. Oonviction of Crime: Comp.
L. 1897, c. 282, § 99 (quoted arUe, § 488) ; con-
victions were declared admissible in the follow-
ing cases: 1867, Wilbur v. Flood, 16 Mich. 44
("infamous crimes"); 1869, Clemens ». Conrad,
19 id. 174, semble; 1870, Dickinson v. Dustin,
21 id. 564 (disbarment of an attorney); 1882,
People V. Driseoll, 47 id. 416, 1 N. W. 221 (in
general); 1886, People v. Mausaunau, 60 id. 15,
21, 26 N. W. 797 (in general); 1890, Helwig v.
Lascowski, 82 id. 621, 46 N. W. 1033 ("minor
offences ").
Minnesota. 2. Scope of Cross-exwminaiicm :
1871, McArdle v. McArdle, 12 Minn. 98, 101,
107 (discretion of the trial Court ; here, " Have
you more than one wife living?", admitted);
1871, State v. McCartey, 17 id. 76, 84, 86 (dis-
cretion of the trial Court controls ; here, "Did
you not steal a gun since these cases have
arisen?", admitted); 1901, State v. Eenswick;
85 id. 19, 88 N. W. 22 (whether the witness
had been arrested, excluded); 1903, State v.
King, 88 id. 175, 92 N. W. 965 (trial Court's
discretion). 3. Privilege against Disgracing
Answers: 1859, State v. Bilansky, 3 Minn.
246, 257 (recognizing a possible privilege for
questions tending to "degrade or disgi'ace," re-
pudiating any fixed distinction between collat-
eral and material matters, adopting the rule
that the privilege does not cover matters merely
tending to show infamy; but within those limits
leaving the whole matter to the sound discretion
of the trial Court; here the question tended to
show fornication). 4. Conviction of Crime:
Gen. St. 1894, §§ 5658, 6841 (quoted amte,
§ 488); 1890, State v. Sauer, 42 Minn. 259,
44 N. W. 115 ("crimes" is not restricted to
those which at common law disqualified, because
the common law on the subject did not prevail
in Minnesota; "crimes" includes misdemeanors,
here assault and battery); State v. Adamson,
43 id. 200, 45 N. W. 152 (same; any unspeeified
"crime" sufficient); 1899, Harding v. E. Co.,
77 id. 417, 80 N. W. 358 (personal injuries;
question to plaintiff as to conviction for drunk-
enness, allowable; Sauer case approved).
Mississippi. 2. Scope of Orosa-eommination:
Gen. St. L. 1892, § 1746 (quoted infra); 1859,
Anon., 37 Miss, 54, 58 (bastardy; a question to
the complainant, as to former intercourse gen-
erally, excluded, as exceeding the "latitude of
inquiry" necessary "to inform the jury of the
character of the witness "); 1870, Head v. State,
44 id. 731, 735, 751 (allowing a question to a
woman as to being a prostitnte); 1896, Tucker
V. Tucker, 74 id. 93, 19 So. 955 (that a female
witness was in a brothel when arrested, ex-
cluded, unchastity being irrelevant); 1902, Mc-
Masters v. State, 81 id. 374, 33 So. 2 (murder;
cross-examination of defendant's -wife as to having
bastard children, held improper). 3. Privilege
against Disgracing Answers: 1870, Head v.
State, siipra (privilege recognized for questions
tending to " bring them into di-sgrace or re-
proach"; here said of questions as to a woman's
prostitution); Gen. St. L. 1892, § 2657 (privilege
not to obtain for witness before Legislature) ;
§ 1746 (quoted m/ra). 4. Convictimi of Crime :
Gen. St. L. 1892, §1746 ("any witness may
be examined touching his interest in the cause
or his conviction of any crime, and his an-
swers may b^ contradicted, and his interest or
his conviction of a crime established by other
evidence; and a witness shall not be excused
from answering any question, material and rele-
vant, unless the answer would expose him to a
criminal prosecution or penalty ").
Missouri. 1. Extrinsic Testimtmy is ex-
cluded: 1883, State v. King, 79 Mo. 133 (yet
allowing the facts of prostitution and intempe-
rance to be shown as traits of general character,
on the principle of §§ 923, 924, ante); 1889,
State V. Taylor, 98 id. 240, 245, 11 S. W. 670 ;
1895, State v. Sibley, — id. — , 31 S. W. 1033
(unchastity of a woman); 1899, State v. Van-
diver, 149 id. 502, 50 S. W. 892. 2. Scope of
Cross-examination: 1878, State v. Clinton, 67
Mo. 380, 390 (declaring the same freedom of
cross-examination for a defendant as for any
other witness); 1880, Muller v. Hospital Assoc,
73 id. 242 (affii-ming the opinion in 5 Mo. App.
401; admitting any facts tending to shake credi-
bility by injuring the character; here a question
to a Catholic priest whether he had broken his
vows by marriage since ordination was allowed);
1890, State v. Miller, 100 id. 606, 621, 13 S. W.
832, 1051 (whether he had been in the peni-
tentiary, admitted); 1892, State v. Houx, 109
id. 63, 19 S. W. 35 (questions as to " specific
acts of alleged immorality commencing at a
period twenty years previous, etc.," held im-
proper); 1893, State ti. Hack, 118 id. 92, 23
S. W. 1089 (questions whether she had "kept
girls for the purpose of prostitution," held
proper); 1894, State v. Gesell, 124 id. 531, 27
S. W. 1101 (the rule said (1) to exclude "spe-
cific pa.st delinquencies," here adultery of a
woman, but not "facts which go to show what
the general moral character or reputation there-
for are, and what the general moral character or
reputation for truth"; but this seems incon-
sistent; (2) to prevent "raking in the ashes of
long forgotten scandals ", and a number of other
processes of rhetorical indefiuiteness) ; 1894,
1135
§ 987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
privilege against disgracing answers has in almost all jurisdictions disap-
peared. Its service, so far as it was useful, is better rendered by the rule of
State V. Martin, 124 id. 514, 28 S. W. 12 (ques-
tiou as to how many times he had been in jail,
allowed); 1895, Goins v. Moberly, 127 id. 116,
29 S. W. 985 (discretion of the trial Court);
1897, Hancock v. Blackwell, 139 id. 440, 41
S. W. 205 (an inquiry into domestic troubles,
excluded) ; 1898, State v. Grant, 144 id. 56, 45
S. W. 1103 (custom as to taking whiskey home
with him, excluded); 1900, State v. Hale, 156
id. 102, 56 S. W. 881 (a deleudaut taking the
stand cannot be cross-examined to other offences
not throwing light on the one charged ; com-
pare § 2276, post) ; 1903, State v. Boyd, — id.
— , 76 S. W. 979 (cross-examination to a fe-
male witness having an illegitimate child, held
allowable in discretion). 3. Privilege against
Disgracing Answers: 1851, Clementine v. State,
14 Mo. 115 (recognized; but only for matters
not " forming any part of the issue to be tried ";
here presence in a bawdy-house was held not
covered by the privilege) ; 1880, MuUer v.
Hospital Assoc, 73 id. 242, affirming 5 Mo.
App. 401 (repudiating the privilege) ; 1881,
State V. Talbott, ib. 359 (assuming that the
privilege applies where infamy is directly in-
volved) ; Rev. St. 1899, § 4680 (witness ex-
amined as to conviction for crime "must answer
any question relevant to that inquiry"). 4.
Conviction of Orime : 1878, State v. Rugan, 68
Mo. 215, semble (admissible) ; 1887, State v.
Loehr, 93 id. 103, 5 S. W. 696 (larceny, ad-
mitted); 1889, States. Taylor, 98 id. 240, 244,11
S. W. 570 (a mere misdemeanor or violation of
local ordinance, excluded ; here, frequenting
a bawdy-house) ; 1890, State v. Miller, 100 id.
622, 13 S. W. 832, 1051 (of any crime, ad-
missible ; here, that he had been ' ' in the peni-
tentiary"); 1893, State v. Taylor, 118 id. 153,
24 S. W. 449 (that he had been in jail for
larceny, allowed) ; 1894, State v. Pratt, 121 id.
566, 26 S. W. 556 (similar) ; 1894, State v.
Smith, 125 id. 2,28 S. W. 181 (of a felony ; but
"not a mere misdemeanor"); Eev. St. 1899,
§ 4680, Laws 1895, p. 284 (quoted ante, § 488 ;
admitting conviction of a " criminal offence ") ;
1895, State v. Donnelly, 130 id. 642, 32 S. "W.
1124 (restricted to infamous crimes ; excluding
a conviction for gambling) ; 1896, Gardner v.
E. Co., 135 id. 90, 36 S. W. 214 (an " in-
famous crime," but not a misdemeanor ; here,
excluding a conviction, for disturbing the peace,
and another unspecified) ; 1897, State v. Dyer,
139 id. 199, 212, 40 S. W. 768 (petit larceny,
admitted); 1898, State v. Grant, 144 id. 56,
45 S. W. 1103 (selling liquor illefjally, ex-
cluded) ; 1901, State o. Prendible, 165 id. 329,
65 S. W. 559 ("conviction of anything less than
a felony does not imjieauh a witness"); 190.3,
State V. Blitz, 171 id. 530, 71 S. W. 1027
(under Eev. St. 1899, § 4680, Laws 1895, stipra,
the conviction may be of any ci'iminal offence,
including misdemeanors, for impeaching either
the accused or any otlier witness ; prior decisions
repudiated ; the statute held to have changed
the law) ; 1903, Chouteau L. k L. Co. v. Chris-
1136
man, 172 id. 610, 72 S. W. 1062 (following
State V. Blitz, supra) ; 1903, State v. Thornhill,
174 id. 364, 74 S. W. 832 (conviction for gam-
bling, a misdemeanor, admitted).
Montana. 1. Extrinsic Testimony is ex-
cluded: C. C. P. 1895, §3379 (like Cal. C. C. P.
§2051). 2. Scope of Oross-examination : C. C.
P. § 3379, supra; 1895, State v. Gleim, 17 Mont.
17, 41 Pac. 998 (excluding a seri&s of questions
involving all kinds of degrading matters); 1899,
State V. Yellow Hair, 22 id. 339, 55 Pac. 1026
(reasons for discharge from anny, excluded) ;
1899, State v. Shadwell, ib. 559, 57 Pac. 281
(to whom he paid rent, allowed on the facts).
3. Privilege against Disgracing Answers : C. C.
P. 1895, § 3401 (like Cal. C. C. P. § 2065) ;
Pol. C. 1895, § 264 (privilege abolished for testi-
mony before legislative committee) ; Pen. C.
1895, § 172 (privilege abolished on trial for
promising legislative bribery) ; 1895, State v.
Black, 15 Mont. 143, 38 Pac. 674 (privilege
recognized ; here, a conviction of felony). 4.
Conviction of Crime : C. C. P., § 3379 (convic-
tion of "felony," admissible); P. C. §1242
("a person convicted of any offence" is com-
petent, but "the conviction may be proved " to
impeach him) ; 1895, State ». Black, supra
(felony, admitted).
Nebraska. 2. Scope of Gross-examination:
1894, Hill V. State, 42 Nebr. 503, 60 N. W. 916
(the discretion of the trial Court shall control,
quoting Eeal v. People, N. Y. ; here admitting
questions as to former arrests for vagrancy, etc.) ;
1897, Myers v. State, 51 id. 517, 71 N. W, 33
(rape; repeated insinuations of unchaste conduct
of the complainant, semble, improper). 3. Priv-
ilege against Disgracing Answers : 1894, Hill v.
State, supra (intimating that snch a privilege
exists); Com p. St. 1897, §§ 5911, 5912 (answer
which would tend "to expose him to public
ignominy," not compellable, except for convic-
tion of felony). 4. Conviction of Crime : Coia^.
St. 1897, § 7199 (quoted ante, § 488); 1900,
Young Men's Oh. Ass'n v. Eavvlings, 60 Nebr.
377, 83 N. W. 175 (conviction for offences be-
low felony, inadmissible under statute).
Nevada. 1. Extrinsic Testimony: 1876,
State V. Larkin, 11 Nev. 314, 330 ("specific
acts of immorality," excluded). 2. Scope of
Cross-examinatioTi : 1876, State v. Huff, 11 Nev.
17, 26 (former arrests and convictions for bat-
tery, excluded; the questions must "legiti-
mately atfect his credit for veracity; ... no
legitimate inference of the untrnthfulne-ss of a
witne.'!S can be drawn from the fact that he has
been convicted of frequent assaults and bat-
teries"). 3. Privilege against Disgracing An-
swers: 1876, State v. Huff, supo-a (privilege
recognized); Gen. St. 188.5, §3416 (like Cal.
C. C. P. §2065). 4. Conviction of Crime:
Gen. St. §§ 3398, 3399 (quoted ante, § 488);
State V. Huff (cited supra).
Ni:w Hampshire. 1. Extrinsic Testimony
is excluded: 1850, Hoitt w. Moulton, 21 N. H.
586, 592 (frequent iutoxication), 2, Scope of
§§ 977-996]
CHAEACTER, FROM CONDUCT.
§ 987
judicial discretion. (4) Convictions of crime are everywhere conceded to
be admissible. The tendency is to a simplicity of the rule defining the kinds
Cross-examination: 1842, Clement v. Brooks,
13 N. H. 92, 99 (left muieciUed); 1866, State v.
Staples, 47 id. 113, 117 (questions as to haying
falsely charged innocent persons with crime;
the discretion of the trial Court said to control;
the rule not distinguished from that about priv-
ilege); 1877, Guttersou v. Morse, 58 id. 165
("necessarily regulated by a sound judicial dis-
cretion"; "a question of fact to be determined
at the trial, in view of the appearance of the
witness and all the circumstances of the case ") ;
1879, Merrill i>. Perkins, 59 id. 343 (trespass
and injury to health by being expelled from a
house; whether he had not been expelled by
legal force from every house he occupied within
ten years, held not improperly excluded; " how
far justice required the cross-examination to go
in that direction was a question of fact to be de-
termined at the trial term"); 1895, Lesser v.
New Hampshire F. Co., 68 id. 343, 44 Atl. 490
(discretion of trial Court; here, in an action for
price of goods, questions as to defendant's finan-
cial career allowed); 1901, Challis v. Lake, 71
id. 90, 51 Atl. 260 (malpractice; that he did
not possess a physician's license as required by
law, allowed on cross-examination of the de-
fendant). 3. Privilege against Disgracing An-
swers: 1842, Clement v. Brooks, 13 N. H. 92,
98, semhle (privilege recognized); 1866, State v.
Staples (cited supra). 4. Conviction of Crime :
1838, Chase v. Blodgett, 10 N. H. 22, 24 (held
altogether inadmissible, on a misunderstanding
of the principle of § 979, ante; probably the
only case of its kind in our law, except in New
York); 1842, Clement v. Brooks, supra (left
undecided); 1850, Hoitt v. Moulton, 21 id. 592
(approving Chase v. Blodgett); this error was
corrected by statute : St. July 13, 1871, now Pub.
St. 1891, c. 224, § 26 (quoted ante, § 488).
New Jersey. 1. Extrinsic Testimony was
once admitted : 1830, Fries v. Brugler, 12
N. J. L. 79, semhle (seduoticin ; the daughter's
unchaste conduct with third persons); but this
would not be followed; compare § 210, ante.
2. Scope of Cross-examination: 1830, Fries v.
Brugler, 12 N. J. L. 79 (seduction; whether the
daughter had not said that a third person was
the father of the child, allowed, as discrediting
her); 1883, Paul v. Paul, 37 N. J. Eq. 25
(question as to being keepers of brothels, ad-
mitted); 1896, Roop V. State, 58 N. J. L. 479,
34 Atl. 749 (mere indictment, excluded); 1902,
State V. Barker, 68 id. 19, 52 Atl. 284 (assault
with intent to kill; questions to the defendant
on cross-examination as to prior acts of violence,
held improper). 3. Privilege against Disgracing
Amruters: 1807, State v. Bailly, 2 N. J. L. 396
(whether he had been convicted and punished
for petit larceny ; not to be answered, as a
matter "which tends directly to dishonor and
disgrace him " ; the contrary rulings said to be
" modem decisions " not in harmony with the
"ancient law"; 1811, Vaughn ;;. Perrine, ib.
534 (seduction; whether the daughter had had
criminal connection with others, and whether
another witness had had connection with her or
had sat up late with her; privileged, as tending
to "disgrace," "infamy," "stigmatize or dis-
honor"; "the doctrine laid down by Mr, Swift
is not law; the distinction between what is con-
nected with the issue, and what is not, is with-
out foundation"); 1830, Fries v. Brugler, supra
(seduction; whether the daughter had not said
to a third person that he was the' father of the
child; privileged, as tending to "disgrace,"
serving to "disparage, disgrace, or disci'edit ") ;
1896, Eoop V. State, supra (privilege repudi-
ated). 4. Conviction of Crime: Gen. St. 1896,
"Evidence," § 1 (quoted ante, § 488); 1896,
Eoop V. State, supra (keeping a disorderly
house, admitted); 1901, State v. Hen.son, 66 id.
601, 50 Atl. 468, 616 (the crime may be of any
kind under § 1, Gen. St., Vol. II., p. 1397;
neither the list of crimes formerly disqualifying, ■
nor the indefinite common-law list, was intended
to limit the kind of crimes available).
New Mexico. 2. Scope of Cross-examina-
tim: 1895, Terr. v. De Gutraan, 8 N. M. 92,
42 Pac. 68 (adultery of a woman, admitted) ;
1896, Terr. v. Chavez, ib. 528, 45 Pac. 1107
(quoted ante, § 983 ; here an inquiry into vari-
ous acts of ruflSanism and outlawry, and indict-
ments therefor, was allowed); 1896, Borrego v.
Terr., ib. 446, 46 Pac. 349 (discretion of trial'
Court; here admitting questions as to murdeis
committed). 3. Privilege against Disgracing
Answers: 1894, Terr. v. De Gutman, supra, 68
(not recognized); 1896, Terr. v. Chavez, supra
(same); 1896, Borrego v. Terr, supra (same).
4. Cmviction of Crime: Comp. L. 1897, § 3016
(quoted ante, § 488; all facts formerly disquali-
fying may be shown to discredit); § 3025 (con-
viction for " any felony or misdemeanor " is ad-
missible) ; 1896, Terr. v. Chavez, sup-a (felony,
admitted ; a pardon for the crime does not
exclude the conviction).
New York. 1. Extrinsic Testimony. The
doctrine of exclusion has been rigidly enforced
since the first ruling. It is worth while to note,
however, that though the reasons already set forth
(ante, § 979) were correctly understood by the
Courts as affecting, not particular acts in them-
selves, but only extrinsic testimony thereof, yet
the prohibition absolutely of ' ' particular acts " in
the California Code and similar legislation seems
to have been partly due to a misreading of the
New York cases, and to a failure to appreciate
that it was only the extrinsic testimony that is
meant by them to be excluded: 1816, Jackson
V. Lewis, 13 Johns. 504 (that the witness was or
had been a public prostitute, excluded; "the
inquiry as to any particular immoral conduct is
not admissible against a witness") ; 1827, Root v.
King, 7 Cow. 635, per Savage, C. J. ("never
allowed") ; 1829, Jackson v. Osborn, 2 Wend.
558 (that the witness had been indicted for per-
jury and forgery, excluded ; "the credibility of
a witness is not to be impeached by proof of a
particnlar offence, but by evidence of general
bad character") ; 1835, Bakeuiau v. Rose, 14
1137
987
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
of crime (i.e. either all crimes, or felonies only), instead of the common-law
subtleties.
id. 105, 110, 18 id. 147 (same ruling as Jackson
o. Lewis; "particular immoral conduct" ex-
cluded) ; 1838, People v. Abbot, 19 id. 198, per
Cowen, J. ; People v. R«ctor, ib. 580, per Cowen,
J. ; 1847, Howard v. Ins. Co., 4 Den. 502, 506 ;
3851, Corning v. Corning, 6 N. Y. 104; 1851,
People V. Gay, 1 Park. Cr. 315 ; 1857, People
V. Jackson, 3 id. 395 ; 1859, Peop'e v. Blake-
ley, 4 id. 183 ; 1859, Stephens v. People, 19
N. Y. 570 ("particular acts not directly in-
volved in the issue ") ; 1 862, Newcomb v. Gris-
wold, 24 id. 298 ; 1864, Wehrkamp v. Willet,
4 Abb. App. 556 ; 1866, LaBeau v. People, 34 id.
230 ; 1878, People v. Brown, 72 id. 573 ; 1881,
Couley t). Meeker, 85 id. 618. 2. Scope ojf Cross-
examination : There is in the following series
of rulings a feature of in-egular variegation which
has made it almost impossible to say what the
law will be after the next decision, and is due in
the past chiefly to a habit of ignoring previous
individual rulings. Three questions in par-
ticular call for mention. (1) The doctrine of
the trial Court's discretion ; this was clearly ex-
pounded in the cases of Turnpike Co. ». Loomis
and LaBeau ; was then more or less limited in
the cases of Eeal, Stokes, Ryan, and others ;
and seems to have been ignored in that of Giblin.
What is needed is a definite statement whether
the Court will or will not leave entirely to the
trial Court's discretion all matters other than
those covered by the next doctrine. (2) The
doctrine that a mere arrest, etc., is irrelevant
and never admissible ; this was first clearly
settled in Gay's case, and seems to have been
consistently adhered to, after Brown's case ;
though it has had to be re-argued and re-ex-
plaiued several times since ; the bar should be
plainly shown that they will not be allowed to
re-open a rule once settled. (3) The doctrine
that questions may be put to an ordinary wit-
ness that may not be put to a testifying accused
person ; this was started in the Brown and Crapo
cases, though apparently ignored in the Clark
and Giblin cases ; the present fate of the doc-
trine seems to be uncertain ; compare § 2276,
post; 1838, People v. Rector, 19 Wend. 573,
581, 582 (whether he was living in adultery and
frequenting drinking-honses at night, allowed) ;
1842, Carter o. People, 2 Hill 317, semble
( whether he had been complained of and bound
over on the charge of passing counterfeit money ;
admitted) ; 1847, Howard v. Ins. Co., 4 Den.
504, 506 (false representations by the witness as
' to the business of the store that had been burned,
question allowed) ; 1848, Lohman v. People,
1 N. Y. 385, semble (whether he had committed
fornication, or had the venereal disease, allowed) ;
1852, People ». Gay, 1 Park. Cr. 312, 7 N. Y.
378, semble (whether he had been committed for
trial on a charge of perjury ; admitted below,
but apparently disapproved on appeal, and Car-
ter V. People similarly criticised, because the fact
of a charge being made shows nothing as to
guilt ; but it is impossible to say whether these
opinions mean merely that such answers do not
sufficiently impeach character to allow good
character to be shown in rebuttal, or that the
questions themselves on cross-examination would
have been excluded if objected to ; evidently the
practice at this time was to ask such questions
without objection) ; 1862, Newcomb v. Gris-
wold, 24 N. Y. 299 (permittiug questions " tend-
ing to discredit and disgrace," "if the answer
relate to the conduct of the witness and legiti-
mately aflfect his credit for veracity" ; but "the
boundary and limit of snch examination is not
well defined, and the cases may not be in har-
mony touching the principle upon which what-
ever of rule there may be rests, or the extent to
which the rule should be carried in permitting
a cross-examination as to independent collateral
acts of the witness affecting his moral character
or as to specific acts of criminality or crime ") ;
1865, Third Great Western Turnpike Co. v.
Loomis, 32 id. 127, 132, 138 (quoted ante, § 983 ;
questions affecting the witness' credit, if on
matters not " bearing directly on the issue," are
left entirely to the discretion of the trial Court,
and may be excluded by him irrespective of
whether the witness claims a privilege) ; 1865,
Lipe e. Eisenlerd, 32 id. 238 (whether he was
under indictment for murder ; excluded, on the
authority of People v. Gay, as irrelevant to im-
peach credit; Turnpike Co. v. Loomis ignored);
1866, LaBeau v. People, 34 id. 230 (questions'
excluded below as to sexual immoi-ality ; Turn-
pike Co. ». Loomis followed; "inquiries on
irrelevant topics to discredit the witness, and to
what extent a coui-se of irrelevant inquiry may
be pursued, are matteis committed to the sound
discretion of the trial Court ") ; 1867, Shepard v.
Parker, 36 id. 517 (promissory note ; defence,
that it was given in settlement for a rape by A.
on P. ; P. being a witness, the question was
allowed whether she had not secretly signalled
A. to come to her house ; this was held proper,
within the trial Court's discretion) ; 1870, Bran-
don f. People, 42 id. 265, 268 (whether she had
been arrested for theft ; held proper, only one
judge noting that it was a matter of judicial dis-
cretion) ; 1870, Eeal v. People, ib. 280 (whether
he had ever been in the penitentiary, and how
long, " or in any other place that would tend to
impair his credibility," held proper ; the extent
of such cross-examination being "somewhat"
in the trial Court's discretion) ; 1872, Connors
V. People, 50 id. 240 ("How many times have
you been arrested ? " ; allowed, as within the
discretion of the trial Court) ; 1873, Stokes ».
People, 53 id. 176 (whether she had not left her
employer without consent or knowledge and
taken things not belonging to her ; held proper) ;
1874, Southworth v. Bennett, 58 id. 659 (whether
he was under indictment for usury ; allowed, as
within the discretion of the Court) ; 1878, Peo-
ple u. Casey, 72 id. 393, 398 (questions as to
other quarrels and other assaults ; allowed, the
matter to rest largely in the trial Court's discre-
tion, and the general scope admissible coveriu^
answers " disclosing his past life and conduct and
U38
§§ 977-996] CHAEACTER, FROM RUMORED CONDUCT.
988
§ 988. Rumors of Particular Misconduct, on Cross-examination of a ViTit-
ness to Good Character, distinguished. The settled rule against impeach-
thus impairing his credibility ") ; 1878, People
I'. Brown, ib. 571 (" How many times have you
been arrested ? " ; departure made from former
rulings ; whether the question was proper for an
ordinary witness, left undecided ; but for an
accused taking the stand, held improper ; not
because iiTelevant to discredit, for it must " legit-
imately tend to impair the credit of the witness
for veracity, either directly, or by its tendency
to establish a bad moral character ", but because
of its unfair effect, since "every immorality,
vice, or crime ... is brought out ostensibly to
affect credibility, but is practicallyused to produce
a conviction for an offence for which the accused
is being tried, upon evidence which otherwise
would be deemed iusuflBcient " ; but the Court
does not carehiUy distinguish between the pres-
ent rule and the privilege against degrading
questions) ; 1879, People v. Crapo, 76 id. 288
("Were you arrested on a charge of bigamy in
1869 ? ", held erroneously allowed against an ac-
cused, not merely on the ground of the preceding
case, but as totally irrelevant to discredit, and
therefore inadmissible even against an ordinary
witness, since such questions ' ' should at least
be of a character which clearly go to impeach
his general moral character and his credibility
as witness," and the above question, dealing with
a mere charge of crime, did not do this) ; 1880,
Ryan v. People, 79 id. 597 (whether an ordinary
witness had been indicted for an assault ; held,
obiter, improper, accepting the dictum in the
preceding case, as irrelevant to affect credibility ;
the relation of this ruling to the doctrine of the
trial Court's discretion pointed out ; " a witness
may be asked in the discretion of the Court as
to transactions which affect his character, either
for truth or veracity, or his moral character ; but
not as to such as do not have that effect " ; two
judges dissent, leaving all to the trial Court's
discretion); 1881, People v. Court, 83 id. 436,
460 (questions of varied range ; held admissible
within the trial court's discretion, und.'r the
limitations of Kyan v. People); 1881, Nolan v.
E. Co., 87 id. 63, 68 (whether he had been ex-
pelled from the fire department ; held improper,
. as irrelevant to discredit under the preceding
rule); 1883, People v. Noelke, 94 id. 137, 143
(whether he had been engaged in the lottery
business, held relevant, under the preceding
rule); 1884, People o. Irving, 95 id. 541 (ques-
tions as to an assault njion W. ; held properly
admitted within the trial Court's discretion, as
relevant to impair the credit of the witness by
its tendency to establish a bad moral charac-
ter " ; the doctrine of Eyan v. People and People
V. Crapo affirmed, that "mere charges or ac-
cusations or even indictments may not so be
inijuired into, since they are consistent with in-
nocence and may exist without moral delin-
quency ") ; 1886, People v. Clark, 102 id. 736,
8 N. E. 38 (whether the accused had been
charged with anything criminal or disgraceful,
improper ; up to those limits, the discretion of
the trial Court prevails ; no authorities cited) ;
1889, People u. Giblin, 115 id. 196, 199, 21
N. E. 1062 (murder ; question to the defendant,
whether he had been in possession of counter-
feiting dies and plates ; held proper, as im-
peaching his credibility by "connecting him
with a nefarious occupation " and the doctrine
of People V. Bi-own and People i/. Crapo ig-
nored) ; 1891, Van Bokkelen v. Berdell, 130 id.
141, 145, 29 N. E. 254 (to a defendant, whether
he had been indicted for perjury, excluded,
citing the cases of Crapo, Eyan, Noelke, and
Irving only) ; 1892, People v. Tice, 131 id. 651,
657, 30 N. E. 494 (trial Court's discretion to
control, provided only that it relates to relevant
matters or matters affecting credibility ; the trial
judge may properly restrict the cross-examina-
tion of accused persons within narrower limits
than in ordinary cases, but the latitude allowed
is a matter for the trial judge) ; 1892, People
V. McCormick, 135 id. 663, 32 N. E. 26 (to a
defendant, as to a former act of violence, al-
lowed); 1893, People «. Webster, 139 id. 73, 84,
34 N. E. 730 ("It is now an elementary rule
that a witness may be specially interrogated,
upon cross-examination, in regard to any vicious
or criminal act of his life " ; the extent being
" discretionai-y with the trial Court " ; here, .
questions to a defendant as to his immoral rela-
tions with a woman were allowed) ; 1898, Peo-
ple V. Dorthy, 156 id. 237, 50 N. E. 800
(whether he had been expelled by his church, not
allowed ; whether he had been removed from the
bai', allowed, but not the details of the grounds
therefor); 1899, People u. Braun, 158 id. 558, 53
N. E. 529 (inquiries as to past career, family his-
tory, held to be within the trial Court's discre-
tion). 3. Privilege against Disgracing Answers :
The privilege spems to be fnlly recognized as
a part of the common law, though not always
accurately distinguished from the question of the
scope of cross-examination ; the leading cases
being those of Mather and Rector ; but in latter
years the partial statutory abolition of the privi-
lege for criminal cases seems to have cast a doubt
upon its validity in civil cases : 1816, People v.
Herrick, 13 Johns. 82 (whether the witness had
been convicted of petit larceny; excluded, partly
as provable only by the record of conviction,
partly as a fact which, producing infamy and
thus disqualifying the witness, he is jirivileged
from answering) ; 1826, Southard v. Rexford,
6 Cow. 254 (having fornication with the nn-
maiiied plaintiff ; privilege allowed, but treated
apparently as a matter of self-crimination) ;
1830, People v. Mather, 4 Wend. 237, 250
(whether the witness had been present at a cer-
tain house, objected to as involving disgrace,
namely, a share in the abduction of William
Morgan, the Mason ; the privilege against an-
swering a question of disgrace or infamy as-
sumed by the Court without doubt to exi.st) ;
1838, People v. Rector, 19 id. 569 (allowed per
Cowen, J., at 574, 586, Bronson, J., at 600,
Nelson, C. J., at 610, the witness having been
asked as to living in adultery, frequenting driuk-
1139
§988
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
ment by extrinsic testimony of particular acts of misconduct {ante., § 979)
is to be distinguished in its application from a kind of questioning which
ing-places, etc.) ; 1848, Lohman v. People,
1 N. Y. 379 (fornication by au unniai'ried
woman, venereal disease ; excluded ; the privi-
lege not applying to facts material to the
issue) ; 1855, People v. Christie, 2 Park Or. 681.
(" whether he had a bias against Roman Catho-
lics," excluded) ; 1857, Strong, J., in People v.
Jackson, 3 id. 396 (privilege recognized for
"any act disconnected with the main transac-
tion which would have a tendency to degiade
Mm"); 1859, People v. Blakeley, 4 id. 181
(having a venereal disease since marriage ;
privilege allowed) ; 1862, Newoomb «. Griswold,
24 N". Y. 299 ('• tending to discredit and dis-
grace," used to define the privilege); 1865,
Third G. W. Turnpike Co, v. Loomis, 32 id. 127,
137 ("questions tending to disgrace," may be
objected to, unless "bearing directly on the
issue " ; as to those not "relevant to the issue,"
the trial Court is apparently allowed a discretion
to admit them and the privilege is subject to
this discretion) ; 1886, La Beau v. People, 34 id.
230 (preceding case affirmed) ; 1866, Shepard v.
Parker, 36 id. 517 (privilege recognized); 1870,
Brandon v. People, 42 id. 269 (privilege recog-
nized) ; 1878, People v. Brown, 72 id. 573 (priv-
ilege recognized for the accused as a witness,
and as to matters not relevant to the issue, no
discretion permitted in admitting them ; as the
witness is also a pa,rty, his counsel is allowed to
make objection for hini); 1879, People v. Crapo,
76 id. 290 (similar facts ; but though the conn-
sol here also made the objection, the Court inti-
mate that that will not raise the question, and
therefore decide the ease on the ground of rele-
vancy, not of privilege). So far as concerns
conviction for crime, the privilege has been
abolished : 1881, Penal Code, § 714 : " [The
conviction may be proved] ... by his cross-
examination, upon which he must answer any
proper question relevant to that inquiry " ; ap-
plied as follows: 1883, People v. Noelke, 94
If. Y. 144 ; 1889, Spiegel v. Hays, 118 id. 661,
22 N. E. 1105. 4. Conviction of Grime. The
cases above cited in par. 1 show clearly that on
principle a reeord of conviction was regarded as
admissible ; and this has been distinctly laid
down a number of times: 1843, Carpenter u.
Nixon, 5 Hill 260 (petit larceny ; admitted) ;
1862, Newcomb v. Griswold, 24 N. Y. 298 (in
general; admissible); 1877, West v. Lynch, 7
D.vly 246 (admitted). The following rulings, ex-
cluding such evidence in civil cases, can hardly
have been law ; 1863, Gardner v. Bartholomew,
40 Barb. 327 ; 1878, Sims v. Sims, 75 N. Y.
472 (distinguishing on the erroneous theory that
it "contravenes the rule that proof of particular
acts or offences, except from the mouth of the
witness himself," is improper). The admissibil-
ity is now settled by C. C. P. 1877, § 832, P. C.
1881, § 714 (quoted ante, § 488 ; admitting con-
viction of " a crime or misdemeanor "); applied
as follows ; 1883, People v. Noelke, 94 id. 137,
144; 1889, Spiegel v. Hays, 118 id. 660, 22 N. B.
U05.
NoBTH Cakolina. 1. Extrinsic Testinumy
is excluded: 1834, Downey v. Murphey, 1 Dev.
& B. 84 (affirming the principle) ; 1830, Banou
i;. Morphes, 2 Dev. 520 (whether he had been
charged with stealing) ; 1886, State v. Garland,
95 N. C. 672 (intoxication on one occasion) ;
1888, State «. BuUard, 100 id. 488, 6 S. E. 191 .
(affirming the principle) ; 1890, Nixon v. Mc-
Kinney, 105 id. 27, 28, 11 S. E. 154 (that the
witness had forged a deed) ; 1899, State o,
Warren, 124 id. 807, 32 S. E. 552 (complainant
in bastardy). 2 Scope of Orosa-examinalUm :
1842, State v. Patterson, 2 Ired. 346, 358 (ques-
tions having a tendency to disparage or disgrace
may be asked) ; 1853, State v. Garrett, Busbee
358 (allowing a question as to being indicted,
convicted, and whipped, for stealing) ; 1854,
State V. March, 1 Jones L. 526 (whether he had
committed perjury in another State, allowed) ;
1868, State v. Cherry, 63 N. C. 32 (allowing
questions whether she had not been delivered of
a bastard child ; whether she had not had un-
lawful intercourse ; here the witness was the pro-
secutrix for au alleged rape ; for the exclusion of
similar facts, not asked from the point of view
of credibility, by the same Court, see § 200,
ante). 3. Privilege against Disgracing Answers ;
1842, State v. Patterson, supra, serrMe (recog-
nized) ; 1853, State w. Garrett, supra (same).
North Dakota. 1. Extrinsic Testimony is
excluded: 1896, State u. Pancoast, 5 N. D. 516,
67 N. W. 1052. 2. Scope of Cross-examination :
1890, Terr. v. O'Hare, 1 N. D. 30, 44, 44 N. W.
1003 (cross-examination to character is ' ' within
the limits of a sound judicial discretion ") 1896,
State V. Pancoast, supra ("if such other facts
tend to weaken his credibility " ; repudiating the
rule of the Crapo Case, N. Y. that the fact of
the witness being also the defendant makes any
difference in the scope of questioning ; exclud-
ing questions as to the finding of au indictment,
the making of accusations, and other circum-
stances not involving actual guilt ; also exclud-
ing crimes committed many years before) ; 1899,
State V. Eozum, 8 id. 548, 80 N. "W. 480 (keep-
ing a liquor nuisance ; question as to arrest for
a similar offence and resistance to an officer,
allowed) ; 1899, State v. Ekanger, ib. 559, 80
N. W. 482 (.same ; question as to being a pro-
fessional gambler, allowed).
Ohio. 1. Extrinsic Testimony is excluded :
1876, Webb v. State, 29 Oh. St. 351, 358. 2.
Scope of Cross-examination : 1870, Wroe v.
State, 20 Oh. St. 460, 469 (largely in the trial
Court's discretion ; to be excluded " when a dis-
paraging course of examination seems unjust to
the witness and uncalled for by the circum-
stances of the case " ; here admitting questions as
to being discharged from the police force, being
under indictment for murder); 1871, Lee w. State,
21 id. 151 (the cross-examination of an accom-
plice held on the facts to have been unreasonably
restricted) ; 1876, Coble v. State, 31 id. 102
(" How many times have you been arrested ?",
admissible) ; 1877, Hamilton v. State, 34 id. 86
1140
§§977-996] CHARACTER, FROM RUMORED CONDUCT.
988
rests upon the principle that the witness' grounds of knowledge (ante,
§ 655) may always be inquired into. When witness A is called to support
(Wroe's Case approved ; a question as to former
indictment, excluded only because it included
the defendant also, who had not testitied) ; 1877,
Bank v. Sleiiimous, 34 id. 142, 147 (Wroe's
Case followed ; the Court's discretion not dis-
turbed in excluding a question as to a violation of
the banking-law) ; 1881, Hanotf v. State, 37 id.
180 (Wroe's Case approved ; the trial Court's
discretion given great range ; examination "for
the purpose merely of disgracing a witness,
which neither relates to the issue nor seems to
test the credibility," discountenanced; no other
rule for an accused person than for an ordinary
witness, the N. Y. doctrine of Crape's Case not
being accepted as a rule of evidence ; here ad-
mitting questions as to previous arrests and in-
dictments for assault and battery, etc. ; Okey,
J., di.ssenting). 3. Privilege against Disgradiig
Answers : 1870, Wroe v. State, supra (ignored) ;
1876, Coble r. State, ^upra (apjiarently recog-
nized) ; Rev. St. 1898, § 53 (privilege declared
not to apply to testimony before legislative com-
mittee). Conviction of Crime: 1876, Coble v.
State, supra (violation of a city ordinance, ex-
cluded) ; Rev. St. 1898, § 7284 (quoted ante,
§ 488).
Oklahoma. 4. Conviction of Crime: Stats,
1893, c. 66, § 331 (quoted ante, § 488).
Orkgon. 1. Extrinsic Testimor>.y is ex-
cluded: Codes & Gen. L. 1892, C. C. P. § 840
(like Cal. C. C. P. § 2051 substituting "crime"
for " felony ") ; 1879, Steeples v. Newton, 7 Or.
110, 114, semble. 2. Scope of Cross-examina-
tion: C. C. P. § 840, supra; 1879, Steeples v.
Newton, supra (conduct not available through
extrinsic testimony, but called out by the im-
peached witness' party on cross-examination,
admitted) ; 1886, State v. Bacon, 13 id. 143,
147, 155, 9 Pao. 393 (cross-examination to prior
misdeeds is "within the sound discretion of the
Court"; but "a sound discretion will never
sanction in(]uiries the sole purpose of which is
to disgrace the witness and not to test his credi-
bility " ; here a question as to prior arrest was
allowed) ; 1886, State v. Saunders, 14 id. 300,
309, 313, 12 Pac. 441 (approving the preceding
case ; but restricting the cross-examination of
accused persons, by implication of statute, to
facts involved in the issue, and excluding ques-
tions about prior misconduct as evidence of
character) ; 1900, States. Savage, 36 id. 191, 60
Pac. 610, 61 Pac. 1128 (questions excluded on
the facts). 3. Privilege against Disgracing
Answers: C. 0. P. §847 (like Cal. 0. C. P.
§ 2065). 4. Conviction of Crime: 0. C. P.
§ 710 (quoted ante, § 488) ; § 840, supra.
Pennsylvania. 1. EHrinsic Testimony is
excluded: 1798, Stout i). Rassel, 2 Yeates 334,
338 (whether he had not been arrested as an
accomplice of a fraudulent schemer for whom
the defendant had gone surety; excluded, as
"charges of particular offences of which he has
not been convicted " were improper for impeach-
ing) ; 1867, Elliott V. Boyles, 31 Pa. 65 (on the
present ground and also on that of collateral
1141
contradiction ; here said of the former commis-
sion of perjury). 2. Scope of Cross-examina-
tion : 1857, Elliott v. Boyles, supra (excluded
entirely ; here the former commission of per-
jury ; quoted ante, § 983). 3. Privilege against
Disgracing Answers : 1802, Respublica; v. Gibbs,
4 Dall. 253, 3 Yeates 429, 437 (privilege recog-
nized as applying to one pardoned for treason ;
compare § 2555 post, as to the theory of this
case) ; 1803, Galbreath v. Eiohelberger, ib. 515 .
(declining to compel an answer to a question
whether a deed had been executed in fraud of
creditors, since such a transaction was " nefari-
ous and immoral, and would justly subject every
person concerned in it to ignominy and con-
tempt"); 1811, Rush, Pres., in Bell's Case,
1 Browne 376 (" where the answer to a question
would cover the witness with infamy or shame,
I have refused to compel him to answer it ") ;
1857, Elliott V. Boyles, 31 Pa. 67 (privilege
affirmed); St. 1901, June 4, Pub. L. 404, § 15
(privilege ceases for examination in insolvency
proceedings by receiver).
Khode Island. 2. Scope of Cross-exami-
natim: 1901, Kolb v. R. Co., 23 R. I. 72, 49
Atl. 392 (question as to witness' having an ille-
gitimate child, excluded). 4. Conviction of
Crime: Gen. L. 1896, c. 244, § 40 (quoted ante,
% 488) ; 1903, State v. Babcock, — E. I. — ,
55 Atl. 685 (question to a defendant as to prior
conviction of the same offence of keeping a dis-
orderly house, admitted).
SoirTH Carolina. 1. Extrinsic Testimony'
is excluded: 1833, Anon., 1 Hill 257; 1890,
State V. Wyse, 33 S. C. 692, 12 S. E. 556 (con-
fusing the principle with that of correcting
collateral errors) ; 1898, Sweet v. Gilmore, 52
id. 530, 30 S. E. 396. 2. Scope of Cross-exami-
nation: 1903, State v. Williamson, 65 S. C.
242, 43 S. E. 671 (question as to an indictment ;
point not decided). 3. Privilege against Dis-
gracing Answers : 1806, Miller u. Crayon, 2 Brev.
108 (privilege recognized for "any fact which
might lead to expose him to infamy"); 1820,
Torre v. Summers, 2 Nott & M. 269, 271, semble
(recognized). 4. Conviction of Crime: 1833,
Anon., supra (admitting "felony for the crimen
falsi" only) ; 1890, State v. Wyse, supra (ad-
mitting conviction for petit larceny).
South Dakota. 2. Scope of Cross-exami-
nation: 1901, Ausland v. Parker, 14 S. D. 273,
85 N. W. 193 (questions needlessly insinuating
personal vice, held improper).
Tennessee. 1. Extrinsic Testimony : 1879,
Merriman v. State, 3 Lea 393, 395 ("particular
facts," excluded ; here, that a woman-witness
had had bastard children) ; 1896, Zanone v.
State, 97 Tenn. 101, 36 S. W. 711 (extrinsic
testimony, excluded) ; 1896, Eyan v. State, ib.
206, 36 S. W. 930 (admitting indictments for
other felonies and misdemeanors, except that if
the record shows an acquittal or a nolle pros.
the indictment should be disregarded ; no refer-
ence to the opinion in Zanone v. State, dated a
month before, but written by another judge).
988
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
the character of B (either a witness or an accused), by testifying to his good
reputation, that reputation must signify the general and unqualified consensus
2. Scope of Cross-examination: to the earlier
cases cited infra, under par. 3, add the follow-
ing : 1892, Hill v. State, 91 Tenn. 521, 523, 19
S. W. 674 (whether he had not been ohai'ged
with stealing ; allowable, if it involyes an in-
dictment for an infamous crime, but not as im-
plying "mere personal imputations"); 1896,
Zanone v. State, supra (iiuestions as to number
of husbands living, domestic difficulties,, etc.,
allowed ; the following is a type: " Have you
not recently torn the clothes off your husband,
drawn a butcher-knife on him, called him a
damn son of a bitch, and said you were going to
kill him ?"; the principle being that any ques-
tion may be asked "throwing light on his or
her moral character, provided they involve
moral turpitude, whether they relate to domestic
relations or other habits, if the tendency is to
show that the witness is guilty of wanton,
habitual violation and disregard of the most
sacred marital relations, or of the law, or of
the rules of decent society, involving the witness
in moral turpitude," though semble the mis-
deeds must be of fairly recent date) ; 1896,
Eyan v. State, supra (whether he had not been
indicted for felonies and misdemeanors, allowed).
3. Privilege against Disgracing Answers : 1858,
Eeed v. Williams, 5 Sneed 580, 582 (question as
to fornication ; undecided) ; 1860, Leaw. Hender-
son, 1 Cold. 146, 149 (same as next case) ; 1873,
Love V. Masoner, 6 Baxt. 24, 33 (fornication ;
privilege allowed because fornication was a
crime) ; 1874, Titus v. State, 7 Baxt. 134
(privilege repudiated entirely, settling the doubt
formerly expressed) ; 1896, Zanone v. State,
supra (privilege not recognized) ; 1896, Eyan
V. State, supra (same).
Texas. 1. Extrinsic Testimony is exchiiei :
1859, Boon v. "Weathered, 23 Tex. 675, 678 ;
1879, Johnson v. Brown, 51 id. 65, 76 ; 1892,
Gulf C. & S. F. R. Co. V. Johnson, 83 id. 628, 633,
19 S. W. 151 (approving Boon v. Weathered) ;
1898, Eed v. State, 39 Tex. Or. 414, 46 S. W.
408 ; 1898, Fields v. State, ib. 488, 46 S. W. 814 ;
1898, Kellogg v. McCabe, 92 Tex. 199, 47 S. W.
520 (that he had been elected mayor by carpet-
baggers and scalawags, excluded). 2. Scope of
Cross-examination: 1884, Evansioh v. E. Co.,
61 Tex. 24, 28 (admitting questions about " rele-
vant facts"; and " any fact which bears upon
the credit of the witness would be a relevant
fact " ; but the opinion confounds the present
question with that, § 1885, post, as to cross-
examining on one's own case) ; 1893, Carroll v.
State, 32 Tex. Cr. 431, 24 S. W. 100 (question
as to indictment for theft, allowed ; but such
cross-examination " must be kept within bounds
by the Court," and allowed only " where the
ends of justice clearly require it and the inquiry
relates to transactions comparatively recent,"
etc.) ; 1894, Exon ». State, 33 id. 461, 26 S. W.
1088 (of a woman, whether she had lived as
mistress with her husband before marriage, al-
lowed) ; 1899, Crockett v. State, 40 id. 173, 49
S. W. 392 {whether he had not been indicted for
assault with intent to murder, allowed) ; 1899,
Smith V. State, — id. — , 50 S. W. 362 (inquiry
of defendant as to indictment for anotlier crime,
allowable) ; 1899, Barkman v. State, 41 id. 105,
62 S. W. 73 ((juestions to the defendant as to a
previous killing, excluded) ; 1899, Preston v.
State, 41 id. 300, 53 S. W. 127, 881 (that he had
sworn to a false account in a former trial of same
defendant, excluded) ; 1900, Dickey ». State,
— id. — , 56 S. W. 627 (illegal liquor sales ;
defendant allowed to be cross-examined as to
other illegal sales) ; 1902, De Lucenay v. State,
— id. — , 68 S. W. 796 (bigamy ; questions to
the alleged second wife, as to her piior incest,
apparently held admissible) ; 1902, Bowers v.
State, — .id. — , 71 S. W. 284 (cross-examina-
tion to a charge of murder 1 8 years before, ex-
cluded, as too remote) ; 1903, Carter v. State, —
id. — , 76 S. W. 439 (cross-examination of a
rape-complainant as to her occupation in a dis-
reputable wineroom, excluded on the facts ; yet
" a witness may be asked as to her or his voca-
tion, environments, or associations"; "this
matter is in the sound discretion of the Court").
3. Privilege against Disgracing Answers: 1873,
Morris v. State, 38 Tex. 603 (privilege recog-
nized ; charge of keeping a house of ill-fame) ;
1893, Carroll v. State, 32 Tex. Cr. 431, 24 S. W.
100 (privilege denied; good opinion by Sim-
kins, J.); 1899, Crockett v. State, 40 Tex. Cr.
173, 49 S. W. 392 (privilege denied). 4. Con-
viction of Crime : 1893, Goodew. State, 32 Tex.
Cr. 505, 508, 24 S. W. 102 (Bne in City Court ;
excluded; the crime must involve "moral and
legal turpitude ") ; 1893, Carroll v. State, ib.
431, 24 S. W. 100 (cross-examination to being
in jail or the penitentiary, allowable).
United States. 1. Extrinsic Testimony is
excluded : 1840, U. S. v. Vansickle, 2 McLean
220 ; 1851, Wayne, J. (the others not touching
the point) in Gaines v. Eelf, 12 How. 554 ; 1898,
Bird 0. Halsy, 87 Fed. 671, 679. 2. Scope of
Cross-examinaMon : 1827, U. S. v. Craig, 4
Wash. 0. 0. 732 (whether his petition for the
benefit of the insolvent law had not been refused
and he remanded to jail for fraud ; excladed; but
no principle given) ; 1861, Johnston v. Jones, 1
Black 209, 225 (rule of discretion, approved) ;
1895, Thiede v. Utah,' 159 U. S. 510, 16 Sup. 62
(whether the witness had quarrelled with her
husband, excluded); 1896, Smith v. U. S., 161
id. 85, 16 Sup. 483 (mere arrest ; left undecided) ;
1897, Tla-koo-yel-lee v. U. S., 167 id. 274, 17
Sup. 855 (murder ; a question to the wife of the
defendant, testifying against him, as to her illicit
relations with another witness for the prosecu-
tion, allowed) ; 1898, Tingle ». U. S., 30 C. 0.
A. 666, 87 Fed. 320 (fraudulent use of mails ; to
the defendant, whether his partner was under a
similar indictment, excluded) ; 1902, Allen v.
U. S., 52 C. C. A. 597, 115 Fed, 3, 11 (certain
cross-examination, intended "simply to degrade
the defendant", held improper). 3. Privilege
against Disgracing Anstoers: 1827, U. S. v.
Craig,. 4 Wash. C. C. 732 (recognized) ; 1840,
1142
§§ 977-996] CHARACTER, FROil RUMORED CONDUCT.
988
of opinion in the community (post, §§ 1610-1614). Such a witness virtually
asserts either (a) that he has never heard any ill spoken of him or (b) that
U. S. V. Vansickle, 2 McLean 325, 329, semble
(same; a question showing "lier uharacter to
be infamous", excluded); Rev. St. 1878, § 103
("No witness is privileged to refuse to testify
to any fact or to produce any paper, respecting
which he shall be examined by either House of
Congress or by any committee of either House,
upon the ground that his testimony to such fact
or his production of such paper may tend to dis-
grace him or otherwise render him infamous ").
4. Conviction of Crime; 1893, Baltimore & 0.
R. Co, V. Earabo, 8 C. C. A. 6, 59 Fed. 75 (con-
viction of crime — here, burglary — held admis-
sible in civil as well as criminal cases ; here
applying the rule in spite of the silence of the
Ohio statute as to civil cases).
Utah. 2. Scope of Cross-examination :
1875, Conway v. Clinton, 1 Utah, 215, 220
("The Court in its discretion may permit dis-
paraging questions to be asked "). 3. Privilege
against Disgracing Answers : Rev. St. 1898,
§3431 (like Cal. C. C. P. § 2065); § 4103
(bribery, etc.; like Cal. P. 0. § 89); 1875, Con-
way V. Clinton, 1 Utah 215, 220 (privilege con-
ceded for facts not material to the issue ; here, a
conviction for crime). 4. Conviction of Crime:
Rev. St. 1898, § 3431 (like Cal. C. C.P. § 2065).
Vermont. 1. JExtrivsic Testimony is ex-
cluded: 1846, Crane u. Thayer, 18 Vt. 162
(that the witness was a notorious counterfeiter).
2. Scope of Cross-examination: 1896, State v.
Fournier, 68 Vt. 262,-35 Atl. 178 (discretion of
the trial Court) ; 1897, State v. Slack, 69 id.
486, 38 Atl. 311 (allowing the trial Court some
discretion, particularly to exclude matters not
affecting credibility). 3. Privilege against Dis-
gracing Answers: left undecided: 1856, State
V. Johnson, 28 Vt. 515 (whether the prosecutrix
had had illicit intercourse). 4. Conviction of
Crime: Stats. 1894, § 1245 (quoted ante, § 488);
1901, State V. Shaw, 73 Vt. 149, 50 Atl. 863
(murder ; cross-examination of the defendant,
as to a plea of guilty to a charge of assault,
allowed) ; 1902, McGovern v. Smith, — id.
' ^ , 53 Atl. 326 (personal injuries ; plaintiff
allowed to be cross-examined as to conviction
for illegal liquor-selling ; but such proof of "an
offence not involving moral turpitude " is in the
trial Court's discretion).
Virginia. 1. Extrinsic Testimony is ex-
cluded: 1811, Fall V. Overseers, 3 Mumf. 495,
505 (per Roane, J. ; acts of unchastity by a wo-
man) ; 1833, Rixey a. Bayse, 4 Leigh 332.
3. Primlege against Disgracing Answers : 1848,
Howel V. Com., 5 Gratt. 664, 666 (questions to
female witnesses as to their unchaste conduct,
possession of stolen goodsj etc., held privileged).
4. Conviction of Crime: 1882, Langhorne v.
Com., 76 Va. 1016 (must be of a crime affecting
credibility ; here the question did not specify
the nature of the charge, and was excluded).
Washington. 2. Scope of Gross-Examina-
tion: 1903, State v. Ripley, 82 Wash. 182, 72
Pac. 1036 (question as to arrest is "probably"
not proper). 4. Conviction of Crime: Annot.
1113
C. & Stats. 1897, § 5992 (quoted ante, § 488) ;
1893, State ». Payne, 6 Wa.sh. 563, 569, 34 Pac.
317 (petit larceny, excluded, as not infamous) ;
1903, State v. Ripley, supra (conviction of a
felony, admissible ; here, robbery).
West Virginia. 2. Scope of Cross-exami-
nation: 1880, State v. Conkle, 16 W. Va. 736,
742, 757, 764 (attempt to kill ; a witness for the
State lived in the house with the defendant and
his wife ; a question as to his intercourse with
the latter was excluded ; the reason being unas-
certainable from the lengthy but obscure opin-
ion) ; 1902, State v. Hill, 52 id. 296, 43 S. E.
160 (trial Court has discretion in allowing ques-
tions to facts affecting moral character ; preced-
ing cases examined and reconciled) ; 1902, State
1). Prater, ib. 132, 43 S. E. 230 (similar).
3. Privilege against Disgracing Anstoers : 1902,
State V. Hill, supra (orthodox English rule ap-
plied) ; 1902, State v. Prater, supra (similar).
Wisconsin. 1. Extrinsic Testimony is ex-
cluded : 1903, Paulson v. State, — Wis. — ,
94 N. W. 771. 2. Scope of Cross-examination :
1858, Ketchingman v. State, 6 Wis. 426, 430
(question to the woman with whom the defend-
ant's adultery was charged to have been com-
mitted, whether an abortion had been pioduced
upon her, not admitted to test credibility ; no
rule laid down; Smith, J., dissenting); 1859,
Kirschner v. State, 9 id. 140, 143 (the witness'
residence and associates, and the fact that he had
assumed an alias, allowed as casting suspicion
upon his character ; whether he had been con-
victed of a crime, excluded on grounds of privi-
lege and of proof by record) ; 1879, Ingalls v.
State, 48 id. 647, 6.54, 4 N. W. 785 (conviction
of a crime, excluded for the same reasons) ;
1881, McKesson v. Sherman, 51 id. 303, 311, 8
N. W. 200 ("A charge of crime is not in itself
impeaching evidence ", excluding a question as
to a former arrest ; also apparently opposing the
preceding ruling) ; 1899, Buel v. State, 104 id.
132, 80 N. W. 78 (questions "Did you kill a
man at Ord, Nebraska?", "Did the insurance
company give you any reason for not giving you
the insurance money ?", held beyond the proper
scope, for a defendant charged with murder and
testifying for himself ; see quotation ante, § 983) ;
1900," Murphy w. State, 108 id. Ill, 83 N. W.
1112 (questions as to "past life" of defendant
testifying, held not improper on the facts) ;
1902," Goodwin v. State, 114 id. 318, 90 N. W.
170 (questions to a woman, as to a bastard
child, held improper). 3. Privilege against
Disgracing Ansioers: 1859, Kirschner v. State,
supra (conviction for larceny ; privileged be-
cause it "tended to degrade"); 1879, Ingalls
V. State, supra (same) ; 1881, McKesson v. Sher-
man, supra, semble (same) ; 1899, Emery v. State,
101 id. 627i 78 N. W. 145 (privilege recognized) ;
Crawford v. Christian, 102 id. 51, 78 N. W. 406
(same) ; Stats. 1898, § 126 (privilege repudiated
for testimony before Legislature or a committee).
4. Conviction of Crime : Cases cited supra ; Stats.
1898, § 4073 (quoted ante, % 488).
§988 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
the sum of the expressed opinion of him is favorable. Now if it appears that
this sustaining witness knows of bad rumors against the other, then, in the
first instance, his assertio"n is entirely discredited, while, in the second in-
stance, his assertion is deficient in good grounds, according to the greater or
less prevalence of the rumors. On this principle, then, it is proper to probe
the asserted reputation by learning whether such rumors have come to the
witness' knowledge ; for if they have, it is apparent that the alleged reputa-
tion is more or less a fabrication of his own mind. It is to be noted that the
inquiry is always directed to the witness' hearing of the disparaging rumor
as negativing the reputation. There must be no question as to the fact of
the misconduct, or the rule against particular facts would be violated; and it
is this distinction that the Courts are constantly obliged to enforce :
1841, Parke, B., in R. v. Wood, 5 Jur. 22.5 (the witness had testified that he had never
heard anything against the defendant, and was on cross-examination asked whether he
had not heard of the defendant being suspected of a certain robbery in the neighborhood;
on objection,): "The question is not whether the prisoner was guilty of that robbery,
but whether he was suspected of having been implicated in it. A man's character is made
up of a number of small circumstances, of which his being suspected of misconduct is one."
1888, McClellan, J., in Movlton v. State, 88 Ala. 119, 6 So. 758: "Opinions, therefore,
and rumors, and reports, concerning the conduct or particular acts of the party under
inquiry, are the source from whicli in most instances the witness derives whatever knowl-
edge he may have on the subject of general reputation ; and, as a test of his information,
accuracy, and credibility, but not for the purpose of proving particular acts or facts, he
may always be asked on cross-examination as to the opinions he has heard expressed by
members of the community, and even by himself as one of them, touching the character
of the defendant or deceased as the case may be, and whether he has not heard one or
more persons of the neighborhood impute particular acts or the commission of particular
crimes to the party under investigation, or reports and rumors to that effect."
On this principle such inquiries are almost universally admitted.^ But
the serious objection to them is that practically the above distinction —
1 Eng. : 1836, R. v. Hodgkiss, 7 C. & P. 2?S id. 303, 25 So. 204 (without going into the par-
(some definite charge against the supported wit- ticiilars) ; CaZ.: 1896, People v. Mayes, 113 Cal.
ness, said to be usually the sole subject of exam- 618, 45 Pac. 860 (rule applied) ; 1898, People
ination) ; 1846, K. v. Rogan, 1 Cox Cr. 291 v. Burns, 121 id. 529, 53 Pac. 1096 (qufstion
(circumstances of suspicion against the accused not improper on the facts) ; Ga. : Code 1895,
on the same night as the alleged robbery, ex- § 5293 ("particular transactions" can only be
clnded) ; Ma.: rule acknowledged in the fol- asked about "upon cross-examination in seek-
lowing cases; 1866, BuUard v. Lambert, 40 Ala. ing for the extent and foundation of the witness'
204 ; 1880, Ingram v. State, 67 id. 72 ; 1882, knowledge") ; 1886, Pulliam v. Cantrell, 77 Ga.
DeArmani;. State, 71 id. 361 ; 1884, Tesney v. 563, 565, 3 S. E. 280 (the principle admitted ;
State, 77 id. 38 ; 1885, Jackson r. State, 78 id. but the question held improper because it repre-
472 (whether the witness had not said that the sented a crime as a fact, not as a rumor ad'euting
deceased was a bad man); 1889, Holmes u. State, reputation);//?.; 1899, Aiken v. People, 183
88 id. 29, 7 So. 193 (whether the accused had 111. 215, 55 N. E. 695 (excluding such inqui-
" worn stripes ") ; 1889, Moultonv. State, ib. 116, ries ; misconceiving the nature of the problem
120, 6 So. 758 (here excluded because the witness and citing none of the oases pertinent; Cart-
was asked "whether he didn't know" of the wright, C. J., diss.) ; 1901, Jennings u. People,
specific misconduct) ; 1893, Thompson d. State, 189 id. 320, 59 N. E. 515 (similar; Carter,
100 id. 70, 71, 14 So. 878; 1896, Evans v. Cartwright, and Hand, JJ., diss.) ; J)(rf. : 187-3,
State, 109 id. 11, 19 So. 535 (like the next Oliver v. Pate, 43 Ind. 134 (here excluded, in
case) ; 1896, White v. State, 111 id. 92, 21 So. trial Court's discretion, because no contrary I'U-
330 (excludmg a question as to the witness' mor was involved) ; 1883, McDonel v. State, 90
knowledge of such facts) ; 1898, Ten-y v. State, id. 324 (allowed) ; 1884, 'Wachstetter v. State, 99
118 id. 79, 23 So. 776 ; 1899, Jones v. State, 120 id. 295 (whether he had heard of the witness'
1144
§§ 977-996] CHARACTEE, FEOM EUMOEED MISCONDUCT. § 988
■between rumors of such conduct, as afifecting reputation, and the fact of it
as violating the rule against particular facts — cannot be maintained before
the jury. The rumor of the misconduct, when admitted, goes far, in spite of
all theory and of the judge's charge, towards fixing the misconduct as a fact
upon the other person, and thus does three improper things, — (1) it violates
the fundamental rule of fairness that prohibits the use of such facts, (2) it
gets at them by hearsay only, and not by trustworthy testimony, apd (3) it
leaves the other person no means of defending himself by denial or expla-
nation, such as he would otherwise have had if the rule had allowed that con-
duct to be made the subject of an issue.^ Moreover, these are not occurrences
being arrested for larceny, being in the station-
house, etu., admitted) ; 1892, Randall v. State,
132 id. 542, 32 N. E. 305 (whether he
had heard of the witness' arrest for peace-
breaking, house-breaking, etc., admitted) ;
1895, Griffith v. State, 140 id. 163, 39 N. E.
440 (rule ai)plied) ; 1897, Shears v. State, 147
Ind. 51, 46 N. E. 331 (rule applied) ; la. :
1856, Gordon v. State, 3 la. 415, semble (ex-
cluding questions as to specific misconduct
known to the witness, because the matters were
treated as fact and not merely as the subject
of rumor) ; 1861, State v. Arnold, 12 id. 487
(similar questions allowed, because expressly
treating tlie misconduct as reputed only) ; 1877,
Barr v. Hack, 46 id. 310 (same) ; 1887, State v.
Sterrett, 71 id. 387, 32 N. W. 387 (same as Gor-
don's case) ; 1887, Hanners v. McClelland, 74
id. 320 (questions excluded because the witness
had not testified to reputation) ; 1890, State v.
McGee, 81 id. 19, 46 N. "W. 764 (same as Gor-
don's case); 1895, State v. Lee, 95 id. 427, 64
N. W. 284 (whether he had not heard of defend-
ant's having burglarized other buildings, al-
lowed) ; Kan. : 1896, State v. McDonald, 57
Kan. 537, 46 Pac. 967 (rule applied) ; La. : 1893,
State V. Donelon, 45 La. An. 744, 754, 12 So.
922 (the doctrine implied, but obscurely stated ;
here the cross-examination was as to the general
bad reputation of the defendant's associates) ;
1896, State v. Pain, 48 id. 311, 19 So. 138
(whether he had not heard that the accused had
whipped a woman, and had drawn a pistol on an-
other person, admitted ; 1903, Cook«. State, 111
La. — , 35 So. 665 (murder ; cross-examination
to the witness' hearing of acts of misconduct bear-
ing on general character, allowed, the accused's
witness not having been limited to character for
peaceableness) ; Mass.: 1876, Cora. v. O'Brien,
119 Mass. 346 (" Particular facts may be called
to the witness' attention, and he may be asked if
he ever heard of tliem ; but this is allowed, not
for the purpose of establishing the truth of those
facts, but to test the credibility of the witness,
and to ascertain what weight or value is to be
given to his testimony " ) ; Mich. : 1 874, Hamil-
ton 1), People, 29 Mich. 173, 188, semble (rule ap-
plied) ; Miss. . 1890, Kearney v. State, 68 Miss.
233, 236, 8 So. 292 (a question referring to mis-
conduct as a fact and not as a rumor, excluded ;
but the principle not alluded to) ; Mo. : 1899,
State V. McLaughlin, 149 Mo. 19, 50 S. W. 315
(rule applied); 1903, State v. Parker, 172 id.
191, 72 S. W. 650 (same) ; 1903, State v. Boyd,
— id. — , 76 S. W. 979 (same) ; Nebr. : 1881,
Olive V. State, 11 Nebr. 1, 27, 7 N. "W. 444
(witness to peaceable character, whether he had
not heard of the defendant's drawing a revolver
upon some one, excluded, on the erroneous no-
tion that this was the offering of a particular
fact) ; 1894, Patterson v. State, 41 id. 538,
59 N. W. 917 (same error) ; 1895, Basye v.
State, 45 id. 261, 63 N. W. 811 (whether
the witness, testifying to defendant's char-
acter for peaceableness, had heard of a spe-
cific instance of his violence, allowed, in the
trial Court's discretion, distinguishing and ex-
plaining Olive V. State and Patterson ti. State) ;
N. Y. : 1900, People v. Elliott, 163 N. Y. 11,
57 N.E. 103 (question as to a supporting witness'
opinion of reputation if it should be proved that
a judgment of divorce on specific grounds had
been rendered, etc., excluded) ; N. O. : 1830,
Barton v. Morphes, 2 Dev. 520 (rule repudiated ;
first, ' ' this would be doing that indirectly which
the law forbids to be done directly, viz., impeach-
ing the character of the witness in chief by specific
charges," and, secondly, " if the witness in chief
sustains a good general character from common
reputation, the supporting witness said nothing
untrue in attributing it to him ") ; 1861, Luther
V. Skeen, 8 Jones L. 356 (rule applied) ; 1888,
State V. Bullard, 100 N. C. 486, 6 S. E. 191
(Barton v. Morphes followed); 1896, State o.
Ussery, 118 id. 1177, 24 S. E. 414 (rule ap-
parently violated; confused opinion); 1898,
Marcom «. Adams, 122 id. 222, 29 S. E. 333
(whether the witness had not "heard that de-
fendant had committed forgeiy,'' excluded) ; Or. :
1901, State v. Ogden,'39 Or. 195, 65 Pac. 449
(admissible ; but the opinion states the principle
confusedly) ; S. C. : 1897, State ti. Dill, 48 S. C.
249, 26 S. E. 567 (character for peace and good
order ; cross-examination to rumors as to illegal
whiskey-making, allowed) ; U. S. : 1855, U. S.
V. Whitaker, 6 McLean 342, 344 (wliether he
had not been charged with passing counterfeit
money, admitted) ; Va. : 3 880, Davis ti. Franke,
33 Gratt. 426 (whether he had not heard certain
people say the character was bad ; here excluded,
while conceding the principle, because not genu-
inely a tost of accuracy, but a subterfuge to
biing in hearsay).
2 On this point see post, § 1114 (Rehabilita-
tion of Witnesses).
1145
§ 988 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
of possibility, but of daily practice. This method of inquiry or cross-exam-
ination is frequently resorted to by counsel for the very purpose of injuring
by indirection a character which they are forbidden directly to attack in that
way ; they rely upon the mere putting of the question (not caring that it is
answered negatively) to convey their covert insinuation. The value of the
inquiry for testing purposes is often so small and the opportunities of its abuse
by underhanded ways are so great that the practice may amount to little more
than a mere subterfuge, and should be strictly supervised by forbidding it to
counsel who do not use it in good faith.^
B. Defects of Skill, Memory, Knowledge, etc., -as evidenced by
Particular Facts.
§ 990. General Principle ; Proof by Extrinsic Teatimony. Besides the
qualities of moral character for veracity, of bias, interest, and corruption,
already examined, there are others which may discredit a witness. Their
nature is indicated by the requirements for testimonial qualifications {ante,
§ 478). If a witness is required to have a minimum of experience in order
to testify (ante, § 555), then his degree of experience and of expert capacity
will affect the weight of his testimony. If he is required to have certain
opportunities for observing the facts in question {ante, § 650), and to be able
to recollect them {ante, § 725), and to narrate them intelligibly {arde, § 766),
then the degree of his capacities in those respects will affect the weight of
his testimony.
But these qualities, as detracting from credit, can seldom be directly
testified to as general and abstract qualities {ante, §§ 876, 938). The dem-
onstration of these qualities must usually be made by particular circum-
stances, sometimes consisting in particular acts of conduct. The question
thus arises whether they may be established by extrinsic testimony (from
other witnesses), or only by cross-examination of the witness himself. On
this question, shall the analogy be followed of the rule for evidencing moral
character {ante, § 979) or of the rule for evidencing bias and interest {ante,
§ 943) ? This is here the chief, if not the only, question of controversy. In
general, the rule may be said to be that extrinsic testimony is forbidden for
evidencing specific acts of misconduct of the witness himself, but is allowed
for evidencing other circumstances ; for example, it would be forbidden for
showing that a medical expert had blundered in a certain prior operation,
but it would be allowed for showing that he had not used the proper instru-
ments in making the experiments to which he testifies. The line of dis-
tinction is so indefinite that no settled rule or definition can anywhere be
surely predicated. But the practice of exclusion may be said to be, on the
whole, stricter than it ought to be.
The problem is complicated by the circumstance that the rule against con-
tradiction on " collateral " matters {post, § 1000) is almost always equally
s For the rule that an impeaching loitness may be cross-examined to the names of persons who
htt/ve spoken disparagingly, see "post, § 1112.
1146
§§ 977-996] SKILL, MEMOEY, KNOWLEDGE, ETC. § 991
applicable, and thus tlie scope of the present principle seldom comes to be
defined. The witness is cross-examined to the desired fact, and then, on his
denial, the subsequent proof of it is adjudged according to the rule for con-
tradiction and not the present rule. Hence the doctrine upon the present rule
remains obscure. Nevertheless, so far as proof by cross-examination is con-
cerned, the logical use of particular instances to evidence incapacity and to
lessen thereby the weight of testimony is amply illustrated in the precedents.
§ 991. Skilled W^itness; Evidencing Incapacity by Particular Errors (Read-
ing, •Writing, Valuation, Experimentation, etc.). Wherever a special qualifica-
tion is required for testimony to a certain fact, the lack of that qualification
is ascertainable logically by particular instances of the witness' failure to
possess or to exercise it.
(1) On cross-examination there is no doubt that these particular instances
may be brought out by questions to the witness himself, — subject to the trial
Court's discretion in restricting an examination too trivial or too lengthy.^
Questions relating to prior instances out of court are possibly less likely to
be favorably treated, — for example, an inquiry to a medical witness to the
presence of poison, whether he had not on two prior occasions made analyses
which turned out to be erroneous ; though there can be no sound objection to
this frequently valuable method of exposing the possibility of error. But
questions exhibiting, by the very course of examination itself, the witness'
lack of capacity to understand the subject are common and indubitably
orthodox. They are, naturally, most available on subjects requiring a certain
skill which is really expertness, though not commonly so termed (ante, § 556)
— for example, reading, writing, and the like. The method is illustrated in
the following passages :
1754, Canning's Trial, 19 How. St. Tr. 577 : The case turned chiefly on the where-
abouts of a gypsy on certain days ; Hannah Fensham testified to seeing her in the town
on the 16th of January, her reason being that "there was a snow on the loth at night, and
the 16th it was wet ; . . . my neighbors said, ' This snow is come in the right season,
yesterday was the 15th ' ; then I said, ' This must be the 16th,' and not only that but I
went to the almanack and looked that very day." The cross-examination followed: " Did
you look dii'ectly to the almanack? " " No, sir, not till the 16th at night." — " Are you
very well skilled in almanacks ? " " Why not ? I can read and write a little." — " Do
you know which day of the week it is by the almanack ? " "I can ; I think so ; my head
is good enough for that." — " Look in this almanack, and tell me what day of the week
it is." (She takes it in her hand; it was a common sheet-almanack, folded up into a
book.) " I can't see by this, it is so small." — " Look at it again and take your time."
" I cannot see without my spectacles " (she puts them on) ; " you shall not fool me so." —
" Tell me by this the day of the week for the 14th of December." " This is not such an
almanack as I look in ; I look in a sheet almanack ; I cannot tell by this." — " Give it me
again, if you cannot tell ; . . . now you have shown your skill in almanacks." Her
own counsel then gives her the almanack and asks her to point out Sunday in the month
of January. " She tells down from the Ist to the 7th. day, and said that was Sunday
which happened to be Tuesday."
18S8, Parnell Commission's Proceedings, 48th day, Times' Rep. pt. 13, p. 102 ; in sup-
port of the charge, against Mr. Parnell and others, of using the Land League to commit
^ Compare the authorities cited ante, § 944, post, §§ 1004, 1368.
VOL. 11.— 10 1147
§ 991 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
crime and intimidation, the speeches to the public and the doings at the League meetings
were often proved by Government constables, spies, or other prejudiced persons, and the
reports were apt to be partial and misleading ; every such witness was accordingly tested
with reference to the correctness of his report ; this testing turned out for one of them as
follows : A. " Some months before Lyden's murder I was at a meeting at Mrs. Walsh's
house. There were several persons assembled there." Varilly took the chair. " Q. "Was
anything proposed or said about any person's cattle?" A. "Yes. ... A resolution
was come to about the killing of these cattle. Some of those present left the room
for the purpose of killing them." . . . On cross-examination : Q. " My learned friend has
put several rather big words to you about some gentleman taking the chair. Was there
a chair to take at Walsh's?" A. "I cannot understand you." Q. "Well; but you
know you said that Mr. Varilly took the chair? " A. " He did." Q. " What do you
mean ? " A. " He was the chairman." Q. " What did he do ? " A. " To attend the
meetings." Q. "What did he do?" A. "He told them that there should be cattle
drowned." Q. " You have been asked by my learned friend whether a resolution was
passed. What is a resolution? " A. " I could not tell you." Q. " You have told us
there was a resolution. Do you know what that meant ? " A. "No." Q. " Was there
a secretary?" A. "Yes." Q. " What is it ? " A. " Not to tell anybody." Q. » Were
you secretary? " A. " 1 was not." Q. " Was there a secretary ? " A. "I do not know
whether there was or not."
Circa 1875, Mobile §• 0. R. Co. v. Steamer New South, U. S. Distr. Ct., So. Distr.
111. ; 2 an action was brought by one steamboat company on the lower Mississippi against
another for injuries sustained in the sinking of one of its vessels in a collision caused by
the careless backing out of the Cairo harbor of a boat of the defendant company. Be-
cause of the harbor and pilot regulations, it was essential to the plaintiff's case to show
that the collision had taken place in the middle of the river, and not two-thirds of the way
across, as the defendant contended. Several colored deckhands of the defendant'had
sworn that the collision took place two-thirds of the way across. One in particular was
vehement in his declarations that he kneio it was two-thirds across, as he had noticed it
definitely at the time. The counsel for the plaintiff, Mr. W. B. Gilbert, on the cross-exam-
ination, took a sheet of paper, folded it once at the centre, and said: "Now, that's half,
isn't it ? " "Yes, suh." Folding it over in halves again, he said, " Now, that's a third,
isn't it?" "Yes, suh I" (promptly). Then opening out the sheet, thus creased, into
four divisions, the lawyer said, pointing to the first, " John, here's one-third ? " "Yes,
suh." To the second, "Here's two-thirds." "Yes, suh." To the third, " That's three-
thirds." "Yes, suh." "John, we've got four thirds. What are we going to do?"
" Dunno, suh ; throw away the fourth one, I reckon. But I know, suh, that the two boats
struck right there at the end of the second third ! "
(2) Proof of such particular instances of error by other witnesses is gen-
erally regarded as inadmissible, and for reasons analogous to those of the
character-rule {ante, § 979), namely, confusion of issues, by the introduction
of numerous subordinate controversies involving comparatively trivial mat-
ters, and unfair surprise, by leaving the impeached witness unable to sur-
mise the tenor or the time of supposed conduct which might be attributed
to him by false testimony. Nevertheless, such instances may often be most
effective evidentially, and the possible disadvantages may not always be pres-
ent. The trial Court should therefore have the discretion to permit this
mode of proof when it seems useful.*
a Ex relatione Barry Gilbert, Esq., now of acknowledged ; with the following cases com-
lowa State University Law School. pare those cited post, § 1004: 1885, Be)t v.
" The precedents vary, and no precise rule is Lawes, Eng., Montague William,s' Reininisceiicos,
1148
|§ 977-996] SKILL, MEMORY, KNOWLEDGE, ETC. § 992
Whether extrinsic testimony is admissible to prove other circumstances
detracting from the witness' qualifications is doubtful, as a matter of prece-
dent, though not of principle. That a mining engineer's experience has been
gained in a locality of a different sort from that of the case in hand, that a
medical witness' experience has been brief and insufficient, that an interpreter
has lived in a part of the country using a different dialect, — circumstances
like these would seem not to be obnoxious to any rule against extrinsic testi-
mony.* But all this can safely be left to the trial Court's discretion.
§ 992. Same : Grounds of an Expert Opinion. (1) The data on which an
expert rests his specific opinion (as distinguished from the facts which make
him skilful to form one at all) may of course be fully inquired into upon
cross-examination.^ Without them, the value of the opinion cannot be esti-
mated. (2) But may the incorrectness or iusufdciency of such data be estab-
lished by calling other witnesses ? This is permissible and common, without
doubt, so far as it involves merely the questioning of other expert wit-
nesses upon their opinion of the validity of the first witness' grounds;
for they are usually called primarily for the sake of their own opinion
in the cause, and their discrediting of the first witness' grounds of opinion
may incidentally be inquired into without encumbering the issues,^ — for
example, when a medical witness, testifying to the cause of death as drown-
ing, states as a ground the presence of froth on the lungs, and then other
medical witnesses, testifying to the cause of death, deny that froth on the
II, 228 (issue as to the genuineness of a sculp- opinion ... is incidental to the main > issue,
tor's work ; the plaintifl-sculptor having claimed because it attacks the foundation of the evi-
to be the author of a bust oif P., of great merit, denee ") ; 1814, Story, J., in Odionie v. Winkley,
which the defendant asserted was not made by 2 Gallis. 52 (in a suit for infringement of pat-
the plaintiff, because he was incapable of a work ent, priority of invention being pleaded, a witness
of that merit, and the plaintiff having made at to the identity of the two machines was shown
the trial another bust of P. as a specimen of his a similar machine invented by a third per-
skill, Sir F. Leighton, Mr. Thornycroft, and Mr. son and was interrogated a.s to the points of
Millais, of the Royal Academy, testified that the identity and difference, in order to show by
latter bust, compared with the former, " had no other testimony the witness' ignorance of
artistic merit " ; the plaintiff then proved the mechanics, and thus his general incorrectness ;
genuineness of the former by a person who had the questions were rejected),
seen him working on it; "this rebutting evi- For the authorities upon discrediting fumd-
dence of course smashed entirely the mere writing experts in this manner, see post, § 2015.
hypothetical evidence of experts ") ; 1885, Louis- * Compare § 1004, post.
ville N. A. &C. R. Co. v. Falvey, 104 Ind. 409, ^ 1885, Louisville N. A. & C. R. Co. v. Fal-
423, 3 N. E. 389, 4 N. E. 908 (witness to plain- vey, 104 Ind. 409, 3 N. E. 389 ; 1898, Shields
tiff's age ; being asked to state his opinion of v. State, 149 id. 395, 49 N. E. 351 (a witness
X's age as a test, his error was allowed to be held to have testified as an expert, so as to be
shown); 1854, Boston & W. K. Co. v. Dana, 1 cross-examined for qualifications; extent of cross-
Gray 83, 90, 104 (an error, in another matter, examination in Court's discretion) ; 1895, Man-
by a cashier-witness, to show general inaccuracy ning v. Lowell, 173 Mass. 100, 53 N. E. 160
in accounts, excluded in discretion) ; 1843, Wood (value-expert ; cross-examination to other sales,
V. Trust Co., 7 How. Miss. 609, 631 (notary's allowable in discretion); 1883, Ncilson r. U.
certificate impeachable by evidence of his custom Co., 58 Wis. 616, 520, 17 IS. W. 310 (cross-ex-
to certify improperly ; distinction noted between amination of witnesses to the extent of deprecia-
such impeachment and facts affecting character); tion by land-condemnation, as to the elements
1903, Hoag V. Wright, 174 N. Y. 36, 66 N, E. and grounds of their estimate, allowable in dis-
579 (an expert witness' error in declaring genuine cretion ).
certain spurious signatures, not otherwise in issue. For the use of other sales, on cross-examination
but shown to him as a test, held not collateral, of value-experts, see the authorities collected
and therefore allowed to be established by other ante, § 463.
testimony ; prior inconsistent cases repudiated ; ^ That they may be inquired into on the
"the competency of a witness to express an direct examination, see ante, § 655.
1149
§ 992 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
lungs indicates death by drowning. But where the confuting of the data
given requires the calling of witnesses who would not otherwise be in the
cause, the propriety of this is open to doubt. Nevertheless, it may often
become highly important for exposing error ; and the trial Court should have
discretion to permit it. The following passage illustrates its possibilities :
1723, Bishop Atterhury's Trial, 16 How. St. Tr. 494, 672; treasonable letters had been
attributed to the defendant ; but when the Crown experts who claimed to have been able
to decipher them were asked by him to produce the key on which they founded their trans-
lation, the request was refused on giounds of the public necessity of keeping the methods of
such skilled persons a secret {post, § 2375) ; the Duke of Wharton thus attacked the ruling :
" The person who is the decipherer is not to be confuted, and what he says must be taken
for granted, because the key cannot be produced with safety to the public !, and conse-
quently (if his conjectures be admitted to be evidence) our lives and fortunes must de-
pend on the skill and honesty of decipherers, who may with safety impose on the Legislature
when there are not means of contradicting them for want of seeing their key. . . . The
greatest ceitainty human reason knows is a mathematical demonstration ; and were I
brought to your lordships' bar, to be tried upon a proposition of Sir Isaac Newton's,
•which he upon oath would swear to be true, I would appeal to your lordships whether I
should not be unjustly coudemued, unless he produced his demonstration that I might
have the liberty of enquiring into the truth of it from men of equal skUl." '
§ 993. Knowledge ; Testing the Witnesa' Capacity to Observe. It is not
doubtful that on cross-examination, so far as feasible by mere questions, the
witness' physical capacity to observe (by sight, hearing, or the like) may be
tested.^ On the other hand, it is hardly less doubtful that extrinsic testimony
to particular instances of his incapacity in those respects would not be per-
missible. But mere questions on cross-examination can seldom effect much ;
the useful thing is usually something of a mixed nature, i. e. experiments
made in court to test the witness' powers. These should be freely allowed,
subject to the discretion of the trial Court.^
§ 994. Same : Grounds of Knowledge and Opportunity to Observe. Every
witness must have had some fair opportunity to observe the matters to which
he testifies {ante, § 650). The circumstances, therefore, which indicate that
his opportunities of acquiring knowledge were less full and adequate than
they might have been are always relevant to diminish the weight of his
testimony :
Ante 1726, Chief Baron Gilbert, Evidence, 148: "Another thing that would render his
testimony doubtful is the not giving the reasons and causes of his knowledge ; for if a
man could give the reasons and causes of his knowledge, and doth not, he is forsworn,
. . . and that a man should know anything and not [be able to] tell how he comes to
know it, is incredible."
3 Compare the eases cited pnst, § 1004. should be placed there along with him " ; this
^ 1850, Com. V. Webster, Mass., Brmi.s' Rep. was done) ; 1894, Heath v. State, 93 Ga. 446, 21
264, 365 (witness to personal identity, cross- S. E. 77 (testing a witness' power of vision by
examined as to having wei(k eyes, using specta- sending him to the winilow, etc., held not im-
cles, etc.). properly refused in discretion).
« 1795, Maguire's Trial, 26 How. St. Tr. 294 For other instances of experimmts to test sight
( " I desire that the prisoner may be bronght for- and hearing, see ante, § 460. Compare the oases
ward to the front seat and some persons, as nearly cited ante, §944, post, §§ 1004 1368.
of his own condition in appearance as may be,
1150
§§ 977-996] SKILL, MEMOEY, KNOWLEDGE, ETC. § 995
1853, Chilton, J., in Campbell v. State, 23 Ala. 78: " In order to ascertain the credit due
to the testimony of a witness, the jury should be informed of his opportunity for observa-
tion, the accuracy with which that observation has been conducted, the fidelity of memory
with which it is related, the witness' habits, pursuits, his conduct, disposition, situation in
life, relation to the parties, etc."
(1) That these inquiries may be made on cross-examination is undoubted :
1744, Heath's Trial, 18 How. St. Tr. 6.5 ; Mrs. Cole had testified to the presence of
Mrs. Heath, another witness, on an important occasion; cross-examined: "Madam, do
you remember that Mrs. Heath came to awaken your mother ?" " I do remember that
she came." — "Was there a light in the room?" "There was not." — "Had Mrs.
Heath a light with her ? " " She might have had a candle in her hand." — " Was there
light or not ? " " There was not ; I believe there might be a fire." — " Had she a candle
in her hand?" "Indeed, I cannot tell." . . . —"The reason of the question is this;
look at that woman ; will you swear positively that that is the woman that came into the
room to call your mother?" "Mrs. Heath was the person, and I believe that is the
same." — "How can you tell it was her when there was no light ?" "I knew her
voice." 1
(2) The circumstances thus detracting from the witness' opportunities of
knowledge may also be established by extrinsic testimony, on the same prin-
ciple {ante, §§ 948, 966) as the circumstances indicating bias and inter-
est. Any other rule would frequently make a false witness' testimony
impregnable.*^
§ 995. Memory ; Testing the Capacity and the Grounds of Recollection.
(1) Subject to the general principle (ante, § 944) that the trial Court's dis-
cretion controls, the testing of a witness' capacity of recollection, by cross-
^ Beisides the following, compare the author- 30 ( " Are you testifying by guess or testifying of
ities cited ante, § 944, post, §§ 1004, 1368 ; 1895, what you know ? ", allowed). That the grounds
Jones V. R. Co., 107 Ala. 400, 18 So. 30 ("the may be inquired into on the direct examination,
opportunities of the witnesses for observing and see ante, § 655. For testing value-ivitncsses by
knowing ") ; 1874, Hamilton v. People, 29 Mich. other sales, see ante, § 463. For testing reputa-
173, 182 (testing as to " the force of the irapres- tion-witnesses, see ante, § 988, ,^os<, § 1112.
sion " made upon a witness at the time ot hear- ^ 1881, Albert v. R. Co., 98 Pa. 316, 318, 321
ing something ) ; 1883, Peter v. Thickstun, 51 (a witness had testified to seeing a field fire ;
Mich. 589, 593, 17 N. W. 68 (assumpsit on a outside testimony that his view was obstructed
contract to sell shingles ; cross-examination to by an embankment, admitted). The cases in-
the " extent, kind, and places of plaintiff's husi- volve usually also the question of contradicting
ness," allowed, to show "his opportunities to on a collateral point, and are therefore collected
know the facts he had testified to ") ; 1892, State post, § 1004.
■V. Aveiy, 113 Mo. 475, 498, 21 S. W. 193 (a The principle was notably illustrated in Mr.
witness to a shooting ; a question as to whether Lincoln's celebrated scene in Armstrong's Trial,
the moon was shining, allowed, "in order that in 1S58 (best told in Arnold's Life, p. 87, and
the jury might know his opportunities and fa- also briefly recounted in Herndon's and other
cilities for observing") ; 1895, State i/. Harvey, biographies), in which he proved false the chief
131 id. 339, 32 S. W. 1110 (asking one claiming witness' .statement that he saw the defendant's
an alibi where he really was); 1838, Nelson, pistol in the moonlight, by producing an alnia-
C. J., in People v. Rector, 19 Wend. 610 {" The nac which showed that the moon had on that
degree of credit to be given to a witness must night not risen at that hour. This incident was
chiefly depend upon his means of knowing the made nse of by Mr. Eggleston, in the tiial scene
facts testified to," hia intelligence, and his of "The Graysons" (ch. 27). It may be noted
character) ; 1880, Koons v. State, 36 Oh. St. that the slander, afterwards started, and chiefly
199 (lack of knowledge of handwriting) ; 1897, given cun-ency by Lamon's Life, that Lincoln
Oregon Pottery Co. v. Kern, 30 Or. 328, 47 Pac. had used a spurious almanac, has been amply
917 (best opinion, by Bean, J.) ; 1892, Thomas refuted by a competent witness (Mr. James L.
V. Miller, 161 Pa. 486, 25 Atl. 127 (reasons for King, ex rel. Judge Bergen, in North American
looking at an almanac to fix the date of a note) ; Review, 1898, vol. 166, p. 186).
1895 ; State v. Rutten, 13 Wash. 203, 43 Pac.
1151
§ 995 TESTIMONIAL IMPEACHMENT. [Chap. XXXII
examination upon other circumstances, even unconnected with the case in
hand, is a recognized and common method of measuring the weight of his tes-
timony. Repeated instances of inability to recollect give the right to doubt
the correctness of an alleged recollection of a material fact ; the force of the
instances depending on the greater or -less probability that the one thing
could be forgotten while the other is remembered. Some of the most effec-
tive exposures of false testimony in the history of trials have been achieved
by this method. All the great cross-examiners have relied upon it ; though
in ordinary hands it is often over-used :
1679, Langhorn's Trial, 7 How. St. Tr. 417, 452 ; Gates, the informer, had testified that
the Popish Plotters met iu London on April 24, and that he had come over to the meeting
from the Jesuit College at St. Omer in France with Sir John Warner ; one of the Jesuit
attendants was put on by the defence to prove that Warner had not left the College at
that time: Witness : "He lived there all that while"; Mr. J. Pemberlon: "Was Sir
John Warner there all June ? " ; Witness : " My lord, I cannot tell that ; I only speak
to April and May"; L. C. J. Scroggs : "Where was Sir John Warner in June and
July?" Witness: "I cannot tell"; L. C. J. : " You were gardener there then ?" ; Wit-
ness: "Yes, I was"; L. C. J. : " Why cannot you as well tell me, then, where he was
in June and July, as in April and May ? "; Witness : " I cannot he certain " ; L. C. J. :
" Why not so certain for those two months as you are for the other ? " ; Witness :
" Because I did not take so much notice ? " ; L. C. J. : " How came you to take more
notice of the one than the other ? " ; Witness : " Because the question that I came for,
my lord, did not fall upon that time " ; L. C. J. : " That, without all question, is a plain
and honest answer " ; Mr. J. Dolben : " Indeed, he hath, forgot his lesson ; you should have
given him better instructions"; L. C. J. : "Now that does shake all that was said be-
fore, and looks as if he came on purpose and prepared for those months."
1794, Mr. Thomas Erskine, cross-examining in Hardy's Trial, 24 How. St. Tr. 647 (the
witness had testified to the utterances at a seditious meeting) : " Where did you live
before you lived with this Mr. Kellerby ? " " At Mr. Faulder's." — " Where before that? "
" In Cheapside, with Mr. Smith." — " How long is that ago ? " " That is between four
and five years ago." " What did you leave Smith for? " " We had some words." —
" Had some words; what might the words be, think you ? " — "I do not know, I am
sure, exactly now; we had some words and upon that account we parted." — " You have
an amazing good memory; you have repeated a whole speech a man made at a meeting,
but you cannot remember the few words that passed between you and your master. Now
try; I will sit down and give you time." . . . L. C. J. Eyre : " Why do you not give an
answer ? " "I cannot recollect the words, it is so long ago."
1820, Queen Caroline's Trial, Linn's ed., I, 67, 91, 95, 96; among the various charges
of adultery and improper intimacy between the Queen (then Princess) and her servant
Bergami during her tour in Germany, Austria, Italy, and the Mediterranean, one charge
was made of adultery on board a polacca during a sea-voyage to Palestine ; the witness
Majocehi, a servant in her suite during most of her journeys, had testified specifically to
this charge under the following questions from Mr. Solicitor-General Copley: "Did the
Princess sleep under that tent [placed on deck] generally on the voyage from Jaffa
home?" Majocehi: " She slept always under that tent during the whole voyage from
Jaffa to the time she landed " ; Mr. Sol. Gen. : " Did anybody sleep under the same tent ? "
Majocehi .-"Bartolomo Bergami " ; Mr. Sol. Gen. : ' Did this take place every night? " ;
Majocehi: " Every night." On cross-examination Mr. Brougham sought to test his trust-
worthiness by inquiring as to other details of the sleeping arrangements of the suite : i
?■ '"^^se questions were not all put in direct sequence ; a few intervening questions are here
1152
§§ 977-996] SKILL, MEMORY, KNOWLEDGE, ETC. § 995
"[On this voyage,] Where did Hieronimua sleep in general?"; Majocchi : " I do not
recollect [Non mi ricordo] " ; Mr. Brougham : " Where did Mr. Howman sleep V " ; Ma-
jocchi: "I do not recollect"; Mr. Brougham: "Where did William Austin sleep ? "^
Majocchi: "I do not remember"; Mr. Brougham: "Where did the Countess Oldi
Bleep ? " Majocchi : " I do not remember " ; Mr. Brougham: " Where did Camera sleep ? "
Majocchi: "I do not know where he slept"; Mr. Brougham: "Where did the maids
sleep?" Majocchi: " I do not know"; Mr. Brougham: "Where did Captain Plynn
sleep?" Majocchi: "I do not know"; Mr. Brougham: " Did you not, when you were
ill during the voyage, sleep below [in the hold] under the deck ? " Majocchi: " Under
the deck " ; Mr. Brougham: " Did those excellent sailors always remain below in the hold
with you? " Majocchi: " This I cannot remember if they slept in the hold during the
nighttime or went up " ; Mr. Brougham : " Who slept in the place where you used to sleep
down below in the hold ? " Majocchi : " I know very well that I slept there, but I do
not remember who else " ; Mr. Brougham : " Where did the livery servants of the suite
sleep ? " Majocchi: " This I do not remember " ; Mr. Brougham : " Were you not your-
self a livery servant ? " Majocchi: " Yes " ; Mr. Brougham : " Where did the Padroni of
the vessel sleep?" Majocchi: "I do not know"; Ur. Brougham: "When her Royal
Highness was going by sea on her voyage [at another time] from Sicily to Tunis, where
did" she sleep?" Majocchi: "This I cannot remember"; Mr. Brougham: "When she
was afterwards going from Tunis to Constantinople on board the ship, where did
her Royal Highness sleep?" Majocchi: "This I do not remember"; Mr. Brougham:
" When she was going from Constantinople to the Holy Land on board the ship, where
did she sleep then ? " Majocchi : I do not remember " ; Mr. Brougham : Where did Ber-
gami sleep on those three voyages of which you have just been speaking?" Majocchi:
"This I do not know." 2
1900, Hon. /. F. Daly, in "The Brief," HI, 10: " One of the neatest effects ever wit-
nessed was produced by a single question put by one of the young leaders at our bar in
the course of an inquiry on habeas corpus as to the sanity of an interested party. A med-
ical expert had testified to his mental unsoundness, and had detailed with great clearness
the tests he applied to his case, and the results which established to his satisfaction an
advanced stage of paresis. He finished his direct examination one afternoon, and next
day was cross-examined for the purpose of eliciting that many of the conditions he
described could be found in every sane person. After being questioned as to the first
indication of mental feebleness he had specified, he was then asked what was the second
feature of the cases he had mentioned as indicating paresis. The witness was unable to
recall which he had mentioned second. ' What, Doctor, you can't recall the second indi-
cation of progressive mental decay which you spoke of yesterday ? ' ' No, I cannot, I
confess.' ' Well, that's funny. Your second indication was " loss of memory of recent
events " ! ' The doctor admitted cheerfully that he had the symptoms himself in a
marked degree."
1892, Tillinghast, J., in State v. Ellwond, 17 R. I. 767, 24 Atl. 782 (indictment for bur-
glary and stealing a chain) : " The witness M., a manufacturing jeweller, was asked in
cross-examination to give the amount, approximately, of the business of his firm in the
course of the year. It had appeared in evidence that the chain in question was sold to H.
by the witness seven or eight years ago, and this question was asked for the purpose of
showing what recollection the witness would be likely to have of a transaction which took
place so long ago. We do not think that this was a proper way to test the recollection of
the witness. The extent of his business was his own private affair, and the defendant
had no right to inquire into it in this way. Moreover, it appears by the subsequent ex-
2 In his opening address for the defence (II, Majocchi, without the man being named, would
33), Mr. Brougham made forcible use of these forthwith arise to the imagination " ; and his
significant answers of Majocchi, prophesying that iteration of that betraying phrase "non mi ri-
" as long as the words ' I don't remember ' were cordo " has indeed become an indelible episode of
known in the English language, the image of forensic history.
1153
§995
TESTIMONIAL IMPEACHMENT.
[Chap. XXXII
amination of the witness by the defendant, that the extent of his business in the manu-
facture of chains similar to the one in question was inquired into, together with the size,
style, weig-ht, and price thereof. This was all that was pertinent to the inquiry which
was then being made. And while considerable latitude is allowed in the cross-examina-
tion of a witness for the purpose of testing his recollection, yet this is no reason for per-
mitting the cross-examiner to pry into the private affairs of the witness in regard to
matters wholly foreign to the investigation." '
(2) In proving the falsity of such a test-instance erroneously recollected,*
or the falsity of a circumstance given as the ground of recollection,^ it is
more common to exclude extrinsic testimony. Nevertheless, in simple cases,
where the effect might be important, this ought to be permitted. There is
no propriety in a hard-and-fast rule ; and the trial Court should be conceded
a discretion.
§ 996. Narration ; Discrediting the Form of Testimony. The trustworthi-
ness of the form in which testimony is delivered {ante, § 766) is usually
sufficiently ascertainable by the demeanor of the witness on the stand {ante,
§ 946).' But when the testimony is given in writing by deposition, or is a
hearsay statement received by exception, it may be necessary to show by
' On the principle of § 944, ante, the trial
Court's discretion is usually conceded to control :
1890, Davis V. Gal. Powder Works, 84 Gal. 629,
24 Pac. 387 ; 1868, Kelsey v. Ins. Co., 35Gonn.
225, 233 (policy on the first wife's life ; question
as to the date of marriage with the second wife,
admissible in discretion) ; 1885, Sewall v. Kob-
bins, 139 Mass. 165, 29 N. E. 650 (the witness'
inability to remember the number of days he
attended the former trial ; allowed iu discretion) ;
1899, Willard v. Sullivan, 69 N. H. 491, 45 Atl.
400 (rests in trial Court's discretion) ; 1895,
Cunningham v. R. Co., 88 Tex. 534, 31 S. W.
629 (testing ou cross-examination by questions
as to omissions of things said to have been habit-
ually done, allowed) ; 1897, State v. Shelton,
16 "Wash. 590, 4S Pac. 258, 49 Pac. 1064 (the
date of a sale of liquor ; questions as to the dates
of other sales allowed to test memory) ; 1894,
Spear v. Sweeney, 88 Wis. 545, 60 N. W. 1060
(testing a plaintiff-witness' alleged weakness of
memory, as caused by disease induced by the
defendant's act, allowable in discretion).
For testing memory by repetition of questions
compare also the authorities collected ante,
§781.
For testing the recollection of the witness as
evidence of his identity, see ante, § 270.
* 1848, E. V. M'Donall, 6 State Tr. N. s. 1128
(seditious utterances ; the informer having re-
ported in detail x, speech of the defendant's of
some twenty lines, "Pollock proposed to read
several sentences from a book and send the wit-
ness out of the court to make a report of them,
as a, means of testing his ability to report " ;
Gresswell, J. : "It has been a very common test
in cases of this sort to read a sentence to a wit-
ness and ask him to repeat it ; but though you
have a right to the real statement of the witness,
you have no right to send him out of court "; Pol-
lock: "I have heard that one of the greatest
1154
men shut up a person in a room to make a Jac-
quardloom"; Gresswell, J.: "Not during the
progress of a trial " ; Pollock then read to the
witness a passage of some ten lines : ' ' Can you
give any report of the general purport and mean-
ing of that speech ? " ; Witness : " No ") ; 1878,
Kennedy v. Com., 14 Bush 357, 360, semble
(questions to test memory may be asked, but the
answers not contradicted) ; 1834, Goodhand v.
Benton, 6 G. & J. 481, 484 (title to a slave, who
was said to have been held by B. as trustee for
his insane daughter ; a witness T., son of a tenant
of B., testified to seeing the slave in B.'s posses-
sion, and was cross-examined as to the state of
accounts between B. and his father, whose adr
ministrator the witness was; to "impeach the
accuracy of his recollection in regard to his hav-
ing settled the account for rent and as to the time
expended in investigating the claim before arbi-
trators," the opponent offered a probate account
rendered by the witness, contradicting his testi-
mony ; neither the father, nor the witness, nor
the account having in themselves any connection
with the title to the slave ; it was held properly
excluded). See further the authorities collected
post, § 1004.
" The authorities are collected post, § 1004,
because the rule about contradiction is also always
involved ; the following case shows the sort of
evidence involved : 1899, Jefferson v. State, —
Tex. Cr. — ■ , 49 S. W. 88 (perjury ; a witness
having testified to the defendant's being sworn
and to remembering it because that trial pre-
ceded certain others, proof that the prior trial
was a different one was allowed).
^ But the following ruling is sound : 1889,
Graham «. McEeynolds, 88 Tenn. 247, 12 S. W.
547 (that a third party had threatened the wit-
ness " if she did not swear plaintiff's child to the
defendant he would send her to hell in a minute,"
admitted).
§§ 977-996] SKILL, MEMORY, KNOWLEDGE, ETC. § 996
extrinsic testimony such circumstances as detract from the trustworthiness of
the form of utterance.'^ There is here usually no means of obtaining these
facts by cross-examination of the witness himself, and hence other testimony
becomes indispensable.
* 1897, Bunzel v. Maas, 116 Ala. 68, 22 So. the defendant had written out her deposition and
568 (that interlineations in a deposition were in she was going to sit up that night and learn it ;
the handwriting of an interested person, ad- admitted). The circumstances thus admissible
mitted) ; 1836, People v. Moore, 15 Wend. 421 in discredit are further ascertainable from the
(showing that a deposition taken by a magistrate cases collected ante, §§ 786-788, 803-805 (depo-
and signed by the witness, but not required by sitions), §§ 763, 764 (memoranda to aid recoUec-
law to have been read over to him, was in fact tion), post, § 446 (dying declarations), § 1556
not read over to him ; admitted) ; 1857, Cook v. (regular entries).
Brown, 34 N. H. 463, 471 (the witness said that
1155
1000
BOOK I, PAET I, TITLE II.
[Chap. XXXIII
Sub-title II {continued): TESTIMONIAL IMPEACHMENT.
Topic IV: SPECIFIC ERROR (CONTRADICTION).
CHAPTER XXXIII.
§ 1000. Theory of this Mode of Impeachment.
§ 1001. Error on Collateral Matters cannot
he Shown ; (1) Logical Reason.
§ 1002. Same: (2) Reason of Auxiliary Policy.
§ 1003. Test of Collateralness.
§ 1004. Two Classes of Facts not Collateral ;
(1) Facts Relevant to the Issue.
§ 1005. Same: (2) Facts discrediting the Wit-
ness as to Bias, Corruption, Skill, Knowledge,
etc.
§ 1006. Collateral Questions on Cross-exami-
nation.
§ 1007. Contradicting Answers on the Direct
Examination ; Supporting the Contradicted Wit-
ness.
§ 1008. Falsus in Vho, Falsus in Omnibus;
General Principle.
§1009. Same: (1) First Form of Rule : The
Entire Testimony must be Rejected.
§ 1010. Same : (2) Second Form of Rule ;
The Entire Testimony may be Rejected.
§ 1011. Same: (3) Third Form of Rule : The
Entire Testimony must be Rejected, unless Cor-
roborated.
§ 1012. Same : (4) Fourth Form of Rule :
The Entire Testimony may be Rejected, unless
Corroborated.
§ 1013. Same: There must be a Conscious
Falsehood.
§ 1014. Same : Falsehood must be on a Ma-
terial Point.
§ 1015. Same : Time of the Falsehood.
§ 1000. Theory. If an eye-witness to a homicide swears that the murderer
bore a scar upon his cheek, and the accused is perceived by the jury to have
no such scar, it is plain that on that particular point the witness is wholly
in error. If the same witness should testify, among other circumstances, that
the killing was done at night, by the light of the full moon, and a reference
to an almanac should show that the moon did not appear in that place on
that night, in a similar way his error on that point would be apparent. If
his testimony should assert, among other things, that the assailant wore a
white hat, and on the other side five unimpeachable eye-witnesses should
attest that the assailant wore a black hat, then the same result would follow,
provided the testimony of the opposing witnesses were believed. Suppose,
again, that he makes the same assertion as to a white hat, and five unim-
peachable witnesses swear that the accused never owned or possessed a white
hat, the same result would follow, provided, first, that the testimony of the
opposing witnesses were believed, and, secondly, that the impossibility also
be accepted of the accused having been able to obtain temporarily a white
hat. Now in all four of these instances the probative effect is the same,
namely, the witness is perceived by the tribunal to be in error on a partic-
ular point; the difference between the instances consists merely in the method
of making the error clear to the tribunal. In the first instance, the senses of
the tribunal itself determine by inspection and without ordinary evidence ;
in the second instance, the error appears by means of hearsay testimony of
an ordinarily incontrovertible sort ; in the third instance it is necessary that
faith be given to the opposing testimony before the error can be accepted ;
in the fourth instance, it is necessary, not only that the opposing testimony
1156
§§ 1000-1015] COLLATERAL CONTEADICTIOF. § 1000
be believed, but also that certain circumstantial facts additionally be ac-
cepted as existing and as probative before the error can be accepted. What-
ever the method of proving the contrary of the witness' asserted fact, the
ultimate result aimed at is the same, namely, to persuade the tribunal that
the witness has completely erred on that particular point. Now the com-
monest instances in practice are the third and the fourth, i. e., the marshalling
of one or more witnesses (with or without other circumstantial evidence)
who deny the fact asserted by the first witness and maintain the opposite
to be the truth. Thus, the dramatic feature of the attempt to prove the
error is a contradiction of the first witness by one or more in opposition.
Yet this contradiction in itself does nothing probatively, nor, unless the con-
tradicting witness or witnesses are believed in preference to the first one, i. e.
unless his error is established. It is not the contradiction, but the truth of
the contradicting assertion as opposed to the first one, that constitutes the
probative end. Nevertheless, the contradiction, being the usual and prom-
inent feature of the process by which that end is aimed at, has served as the
common name to designate the probative end itself. This is not wrong, pro-
vided it be clearly understood what that end is.
Such being the real probative end which the contradiction is intended to
serve, what is the exact nature of that probative effect ? Assume that the
end is accomplished, and that the tribunal accepts as a fact that the witness
is completely in error on that particular point, what is the place of this fact
in the general system of discrediting or impeaching evidence ?
The peculiar feature of this probative fact of Error on a particular point is
its deficiency with respect to definiteness and its wide range with respect to
possible significance. Looking back over the various kinds of defects of testi-
monial qualifications already considered, it will be seen that the evidence
was aimed clearly and specifically at a particular defect ; it showed either
that or nothing. Former perjury would indicate probably a deficient sense
of moral duty to speak truth ; relationship to the party, a probable inclina-
tion to distort the facts, consciously or unconsciously; misjudgment of a
test-specimen of handwriting, a probable lack of skill in judging of writings ;
and so on. Now the present sort of fact is not offered as definitely showing
any specific defect of any of these kinds, and yet it may justify an inference
of the existence of any one or more of them. We know simply that an erro-
neous statement has been made on one point, and we infer that the witness
is capable of making an erroneous statement on other points. We are not
asked, and we do not attempt to specify, the particular defect which was the
source of the proved error and which might therefore be the source of another
error. The source might be a mental defect as to powers of observation or
recollection ; it might be a lack of veracity-character ; it might be bias or
corruption; it might be lack of experiential capacity; it might be lack of
opportunity of knowledge. As to all this, nothing can be specified. The
inference is only that since, for this proved error, there was some unspecified
defect which became a source of error, the same defect may equally exist as
1157
§ 1000 TESTIMONIAL IMPEACHMENT. [Chap. XXXIII
the source of some other error, otherwise not apparent. No doubt the repe-
tition of instances affects the strength of the inference; i.e. if a witness has
testified to ten separate points, and if his assertions are proved to be incorrect
not merely upon one but upon six of these points, one is more inclined to
believe that the underlying defective quality, whatever it may be, is radical
and complete, and to assume easily that it applies to and annuls his asser-
tions on all the remaining points. But it is still true that the error in itself
does not definitely indicate any one specific defect ; that there is no attempt
consciously to analyze its bearings in that respect ; and that the typical pro-
bative process is that of inferring a general defective trustworthiness on other
points from proved defective trustworthiness on one point.^
It will thus be seen, as above suggested, that the strength and usefulness
of this sort of evidence consists in the wide range of defective qualities which
it opens to our inference ; and that its weakness consists in the indefiniteness
of its inference.
In view of this source of its weakness, there is no difficulty in appreciating
the logical basis for a limitation that is well established in the law ; and this
is now to be considered :
§ 1001. Error on Collateral Matters cannot be Shown; (1) Logical Basis.
In so far as the point on which the proved error exists is removed in condi-
tions and circumstances from the point as to which the inference of other
error is desired to be drawn, the possible explanations (in the way of defec-
tive qualities) multiply which may be accepted without necessarily accepting
one which applies to the desired point ; conversely, in so far as the conditions
and circumstances are the same, then the explanations tend to become iden-
tical, i. e. so that the defective quality, whatever it was, that caused the
proved error, must have operated, more or less certainly, to cause error also
on the point at issue, so closely connected with it in conditions and circum-
stances. For example, suppose a witness to testify that the accused struck
the first blow in an affray ; and suppose it to appear that this witness, four
years ago, incorrectly asserted that a street-car conductor had not returned
him the right amount of change after payment of fare ; or that two years
ago he incorrectly asserted that Yankton was the capital of South Dakota ;
or that one year ago he incorrectly asserted that his brother was in California ;
or that one month ago he incorrectly stated the day of the month ; in all
these instances the significance of the error is felt logically to be trifling, be-
cause the defect which was the source of any one of those errors may not be
operating with respect to his assertion now in question, and the probability
of its operating is so indefinite as not to be worth considering. But suppose
it to appear that another assertion of this witness, that the deceased had no
weapon in his hand when struck, is incorrect ; now we may begin to attach
significance to this error, because the source of it, while it need not be also
operating as to the main assertion in question, is much more likely to be
^ See the opinion of Holmes, J., in Gertz v. Fitchbnre E. Co., 137 Mass. 77, quoted post,
§ 1109.
1158
§§ 1000-1015] COLLATERAL CONTEADIGTION. § 1002
operating. Or, if the error consist in asserting that the deceased was
knocked down by the accused's blow (when in truth he remained standing),
the error is vital, because the defective source of that assertion must almost
necessarily have operated also for the assertion that the accused struck first ;
and, if the former assertion appears to be untrustworthy, the latter must fall
with it (so far as this witness' testimony is concerned).^
Thus, an error upon a distant and distinct matter is logically much inferior
in value to an error upon a closely connected matter, in its bearing upon the
trustworthiness of the assertion in question. This seems to be the logical
foundation for the readiness of our law to draw a distinction, in allowing
proof of such errors, between matters " collateral " and other matters.
§ 1002. Same: (2) Reasons of Auxiliary Policy. But it remains true that
" collateral " errors, though only remotely probative, are still probative, i. e.
relevant ; and the controlling reason for exclusion is the reason of Auxiliary
Policy {ante, § 42). This is the one emphasized by the Courts, with varying
phrases and arguments :
1679, Whitebread's Trial, 7 How. St. Tr. 311, 374 ; the defendant offered to prove that
Oates had made a false statement as to his companions, in his testimony at a prior trial
for the Popish Plot; L. C. J. North : " That is nothing to the purpose. If you can con-
tradict him in anything that hath been sworn here, do." Defendant : " If we can prove
him a perjured man at any time, we do our business." L. C. J. : " How can we prove one
cause in another ? . . . Can he come prepared to make good everything that he hath said
in his life ? " Another defendant : " All that I say is this, If he be not honest, he can be
witness in no case;" L. C. J. : " But how will you prove that? Come on, I will teach
you a little logic. If you will come to contradict a witness, you ought to do it in a mat-
ter which is tiie present debate here ; for if you would convict him of anything that he
said in Ireland's trial, we must try Ireland's cause over again."
1680, Earl of Casllemaine' s Trial, 7 id. 1067, 1081, 1107 ; on an offer to contradict on
a collateral matter ; Attorney-General : " If he may ask questions about such foreign
matters as this, no man can justify himself ; . . . any man may be catched thus " ;
Defendant: "How can a man be catched in the truth?" ; L. C. J. Scroggs: "We
are not to hearken to it. The reason is this, first : You must have him perjured, and
we are not now to try whether that thing sworn in another place be true or false ;
because that is the way to accuse whom you please, and that may make a man a liar that
cannot imagine this will be put to him ; and so no man's testimony that comes to be a
■witness shall leave himself safe."
1847, Alderson, B., in Attorney-General v. Hitchcock, 1 Exch. 104: " When the question
is not relevant, s*iiictly speaking, to the issue, but tending to contradict the witness, his
answer must be taken (although it tends to show that he in that particular instance speaks
falsely, and although it is [thus] not altogether immaterial to the issue) for the sake of
the general public convenience ; for great inconvenience would follow from a continual
course of those sorts of cross-examinations which would be let in in the case of a witness
being called for the purpose of contradiction " ; Rolfe, B. : " The laws of evidence on this
subject, as to what ought and what ought not to be received, must be considered as
founded on a sort of comparative consideration of the time to be occupied in examina-
tions of this nature and the time which it is practicable to bestow upon them. If we
lived for a thousand years, instead of about sixty or seventy, and every case were of suffi-
cient importance, it might be possible and perhaps proper to throw a light on matters in
^ See the remarks of Story, J., in Santissima Trinidad, 7 Wheat. 283, 338.
1159
§ 1002 TESTIMONIAL IMPEACHMENT. [Chap. XXXIII
■which every possible question might be suggested, for the purpose of seeing by such means
•whether the whole was unfouuded, or what portion of it was not, and to raise every pos-
sible inquiry as to the truth of the statements made. But I do not see how that could be;
in fact, mankind find it to be impossible. Therefore some line must be drawn."
1861, Robinson, C. J., in R. v. Broion, 21 U. C. Q. B. 334 : [" These controversies] arise
when a counsel, in cross-examination of a witness, uses a license which the practice
allows him of asking a variety of questions having no apparent connection with the
matter to be tried, in the hope of involving the witness in some contradiction. He is not
in such cases obliged to explain the object of his questions, because that might often
defeat his object ; but he must be content to take the answers which the witness gives to
any question that is irrelevant, and is not allowed to call witnesses to disprove the state-
ments he makes in reply, because that would lead to the trial of innumerable issues
irrelevant to the case, and would distract the attention of the jury. And besides, which
is even a better reason, it would be unsafe and would be unjust towards the witness to
infer, from any contradiction that might be given by another witness, that the one who
has been cross-examined has sworn falsely and is unworthy of belief; since he could not
have contemplated that he would be questioned upon points unconnected with the facts
to be tried, and could therefore not be expected to be able on the sudden to support his
testimony by the evidence of other persons, though it might be perfectly true in itself,
notwithstanding the contradiction."
1847, Allen, J., in Charlton v. Unis, 4 Gratt. 62 : " Any other rule would tend to divert
the attention of the jury from the real enquiry before them, whether the witness was
«ntitled to credit in the evidence he had given, to the enquiry whether he had told the
truth upon some collateral question; and the danger is encountered that, upon this col-
lateral issue raised on the trial, evidence may become proper, and so be let in, which
would be illegal upon the trial of the issue between the real parties to the cause ; and
such illegal testimony may make an improper impression upon the minds of the jury,
notwithstanding any instruction of the Court as to the proper bearing thereof."
1854, Redjield, C. J., in Powers v. Leach, 26 Vt. 277: "The issue attempted to he
raised in regard to P.'s testimony was altogether collateral to the main issue in the case,
and the Court might have rejected the testimony altogether and it would not have been
error. We may suppose that such collateral issues might spring up in regard to the
testimony of every witness upon the stand, and thus a single issue branch out into an
indefinite number of subordinate and collateral ones, and these again into many more
upon each point, so that it would become literally impossible ever to finish the trial of a
single case. This rule, therefore, that one cannot be allowed to contradict a witness
upon a matter wholly collateral to the main issue, becomes of infinite importance in the
trial of cases before the jury. A judge may no doubt in his discretion allow a departure
from the rule, but is not obliged to do so." ^
It is here important to observe how far these reasons of policy coincide
•with the reasons which exclude extrinsic testimony of particular acts of
misconduct to show bad moral character {ante, § 979). (1) There is a reason
of unfair surprise {post, § 1849); one might contrive and charge upon the
witness an error of any kind, time, or place ; and it would obviously be
unfair to expect him to be prepared to refute it, except so far as it bears
directly upon the matter in litigation. This reason, then, is in general the
same as in the other rule. (2) There is a reason of confusion of issues {post,
§ 1904) ; for the necessity of investigating each error alleged would add to
^ So also : 1896, Briokell, C. J., in Crawford 923 (a careful statement of the principle); 1900,
«. State, 112 Ala. 1, 21 So. 214 ; 1897, Wallin, Chase, J., in Cooper v. Hopkins, 70 N. H. 271,
J., in State v. Haynes, 7 N. D. 70, 72 N. W. 48 Atl. 100.
1160
§§ 1000-1015] COLLATERAL CONTEADICTIOK § 1003
the trial so much consumption of time and confusion of issues as to be
intolerable. But here the reason points out a peculiar limitation ; for while,
in an issue of the witness' misconduct as relevant to show bad moral char-
acter, we are distinctly adding a mass of testimony otherwise irrelevant and
out of place, yet this is not necessarily so with testimony directed to show
the witness to be in error, since the point of the error may very well be a
point already relevant in the case, and thus the testimony upon that point is
no additional testimony, but is testimony which could have been in any case
offered and must have been admitted if offered ; on such a point, then, the
proof of the witness' error is not an addition to the issues of the trial, and
therefore is in no way obnoxious to the reason for exclusion.
§ 1003. Test of Collateralness. The reason above examined suggests
immediately the limitation to the rule of exclusion. It is not the proof of
every error that is obnoxious to the rule. The common term for designating
the line of exclusion is "collateral"; no contradiction, we are told, shall be
permitted on " collateral " matters?-
But this term furnishes no real test. If it be asked what " collateral "
means, we are obliged either to define it further — in which case it is a mere
epithet, not a legal test — , or to illustrate by specific examples — in which
case we are left to the idiosyncrasies of individual opinion upon each
instance. The test that is dictated by the principle above explained, and
the only test in vogue that has the qualities of a true test — definiteness,
concreteness, and ease of application — is that laid down in Attorney -General
V. Hitchcock : Could the fact, as to which error is predicated, have been shown
in evidence for any purpose independently of the contradiction ? This test was
laid down in connection with the Self-Contradiction doctrine, and is ex-
amined in further detail under that principle (post, § 1021). That the test
is identical for both doctrines is perhaps not a necessary consequence of
principle, though it may be (post, § 1019); but it is always accepted by the
Courts as identical The test of Attorney-General v. Hitchcock (as explained
post, § 1021) is as yet explicitly accepted by only a few Courts in this
country for the doctrine of Self-Contradiction ; but the same Courts apply it
also to the present doctrine.^ Other Courts are content to invoke simply the
term " collateral," and to decide according to the circumstances of each case.*
'1824, Starkie, Evidence, I, 190 ("If a home w. Com., 76 Va. 1019, semiZe. The term
question as to a collateral fact be put to a wit- "immaterial" ought on principle to he equiva-
ness for the purpose of discrediting his testi- lent to this, and is employed in some cases:
mony, hisanswer must he taken as conclusive, 1834, Com. v. Buzzell, 16 Pick. 158 ("anim-
and no evidence can be afterwards admitted to material fact "). In Chancery, it must be noted,
contradict it. This rule does not exclude the a rule of special bearing arises as to questioning
contradiction of the witness as to any facts for the purpose of collateral contradiction, i. e.
immediately connected with the subject of whether new interrogatories can be filed for that
inquiry)." purpose after publication of the depositions ;
" 1877, People v. Chin Mook Sow, 51 Cal. here collateral contradiction is allowed ; see
597 (" When the question asked on cross-exami- Pureell v. M'Namara, 8 Ves. Jr. 324 (1803), and
nation calls for a response in respect to a matter note ; Carlos v. Brook, 10 id. 49 (1804).
which the party asking the question would have * In the following cases the rule was ac-
a right to prove as an independent fact, the rule knowledged and applied, but no specific test or
[as to collateralness] does not apply " ; here a useful illustration is furnished by them ; in the
former oonvictioa was admitted); 1882, Lang- ensuing sections (§§ 1004-1006)" will be found
1161
1003
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIII
The sound rule would be to leave the application of the rule entirely in
the control of the trial Court;* but there is as yet little sign of such a
practice.
§ 1004. Two Classes of Facts not Collateral; (1) Facts relevant to the
Issue. In applying the test of Attorney-General v. Hitchcock, it is obvious
that there are two different groups of facts of which evidence would have
been admissible independently of the contradiction: (1) facts relevant to
some issue in the case, and (2) facts relevant to the discrediting of a witness.
(1) Facts relevant to some issue in the case. The test in question usually
causes here no difficulty in its application ; the issues in the case indicate
what facts would be relevant :
1834, Com. V. Buzzell, 16 Pick. 158; indictment for entering and burning, as members
of a mob, an Ursuline convent; an exciting cause to the action of the mob was a rumor
that one of the nuns was confined there against her will, and testimony to her insanity-
had been offered by the prosecution; the defendant then offered evidence of her sanity;
those rulings which are concerned with some
question of principle ; the following list is not
exhaustive, but the general rule is everywhere
fully conceded, and a citation of every case
in which it has been invoked is unnecessary :
Enjf. : 1805, R. v. Rudge, Peake Add. Cas. 232 ;
1806, Spenceley v. Wilmot, 7 East 108 (usury ;
the terms of other contracts with other persons
of the same circle about the same time, not
allowed to be contradicted) ; 1852, Palmer v.
Trower, 8 Exch. 247 (the fact of a statement by
a third party, inadmissible in itself; excluded) ;
1852, E. V. Dean, 6 Cox Or. 23 (an irrelevant
statement of the prosecutrix at a former time ;
excluded) ; 1860, Tolman v. Johnstone, 2 F. &
F. 66 ; 18!*8, -fte Ha^geuraacher's Patents, 2 Ch.
280 ; Ala. : 1859, Rosenbanm v. State, 33 Ala.
361 ; 1896, Louisville J. C. Co. v. Lischkoff,
109 id. 136, 19 So. 436; 1896, Crawford o.
State, 112 id. 1, 21 So. 214 ; 1897, Bunzel v.
Maas, 116 id. 68, 22 So. 568 ; 1900, Bessemer
L. & I. Co. V. Dubose, 125 id. 442, 28 So. 380 ;
ArJc. . 1879, Butler v. State, 34 Ark. 484 ; Col. :
1878, People v. Bell, 53 Cal. 119 ; 1886, People
V. Webb, 70 id. 120, 11 Pac. 509 ; 1888, People
V. Dye, 75 id. Ill, 16 Pac. 537 ; 1890, People u.
Tiley, 84 id. 654, 24 Pac. 290 ; 1890, Davis
V. Powder- Works, ib. 627, 24 Pac. 387 ; Fla. .-
1900, Stewart ». State, 42 Fla. 591, 28 So. 815 ;
Ga.: 1903, Atlanta R. & P. Co. v. Monk, 118
Ga. 449, 45 S. E. 494 ; III. : 1898, East Du-
buque V. Burhyte, 173 111. 653, 50 N. E. 1077 ;
Ind. : 1897, Reynolds u. State, 147 Ind. 3, 46
N. E. 31 ; 1900, Barton v. State, 154 id. 670, 67
N. E. 515 ; 1901, Hinkle v. State, 157 id. 237,
61 N. E. 196; Kan. : 1890, State v. Blakesley,
43 Kan. 254, 23 Pac. 570 ; State v. Reick, ib.
636, 23 Pac. 1076 ; ICy. : 1889, Com. v. Houri-
gan, 89 Ky. 312, 12 S. W. 660 ; 1898, Stephens
V. Com., — id. — , 47 S. W. 229 ; La. : 1898,
State V. Wigs^ins, 50 La. An. 330, 23 So. 334 ;
Md. : 1900, Baltimore City P. R. Co. v. Tanner,
90 Md. 316, 45 Atl. 188 ; Mass. : 1861, Cora. v.
Fitzgerald, 2 Atl. 297 ; 1881, Shurtleffo. Parker,
130 Mass. 297; 1889, Fitzgerald «. Williams,
1162
148 id. 462, 466, 20 N. E. 100 ; 1805, Chalmers
V. Mfg. Co., 164 id. 532, 42 N. E. 98; Mich.:
1866, Fisher ». Hood, 14 Mich. 190 ; Mo. : 1876,
Iron Mountain Bank v. Murdock, 62 Mo. 70,
74; 1896, State v. Taylor, 134 id. 109, 35
S. W. 92 ; Mont. : 1903, BuUard ». Smith, —
Mont. — , 72 Pac. 761 ; Nebr. : 1894, Carpen-
ter V. Lingenfelter, 42 Nebr. 728, 60 N. W.
1022 ; 1903, Burke Co. v. Fowler, — id. — ,
93 JJ. W. 760 ; Jf. H. : 1851, Hersom v. Hen-
derson, 23 N. H. 506 ; 1858, Gerrish v. Pike,
36 id. 512, 517 ; N. J. : 1900, State v. Sprague,
64 N. J. L. 419, 45 Atl. 788 ; N. D. : 1897,
State V. Haynes, 7 N. D. 70, 72 N. W. 923 ;
Oh. : 1865. Minims v. State, 16 Oh. St. 233 ;
Or. .- 1901, Williams v. Culver, 39 Or. 337, 64
Pac. 763 ; 1901, Oldenburg v. Oregon Sugar Co.,
ib. 564, 65 Pac. 869 ; Fa. : 1859, Schenley v.
Com., 36 Pa. 61 ; 1861, Wright v. Cumpaty, 41
id. 110 ; 1867, Gregg v. Jamison, 55 id. 471 ;•
1900, Coates v. Chapman, 195 id. 109, 45 Atl.
676 ; S. C. : 1890, State v. Wyse, 33 S. C. 691,
12 S. E. 556 ; 1897, State v. Adams, 49 id. 414,
27 S. E. 451 ; 1898, State v. Sanders, 52 id.
580, 30 S. E. 616; Tenn.: 1882, Rocco v.
Parczyk, 9 Lea 328, 331 ; Tex. : 1890, Sutor v.
Wood, 76 Tex. 407 ; 1897, Texas & P. R. Co. v.
Phillips, 91 id. 278, 42 S. W. 862 ; 1903, Con-
nell V. State, — Tex. Cr. — , 76 S. W. 612 ;
V. S. .- 1898, Safter v. U. S., 31 C. C. A.
1, 87 Fed. 329; 1899, Scott v. U. S., 172
U. S. 343, 19 Sup. 209 ; Va. : 1811, Fall v.
Overseers, 3 Mumf. 496, 606 ; 1847, Charlton v.
Unis, 4 Gratt. 61 ; 1873, Murphy v. Com., 23
id. 965 ; Vt. : 1840, Stevens v. Beach, 12 Vt.
587; 1868, State v. Thibeau, 30 id. 101, 104;
1881, Smith v. Royalton, 53 id. 609 ; Wash. :
1903, State v. Carpenter, 32 Wash. 254, 73
Pac. 357 ; PV. Va. : 1901, State v. Sheppard,
49 W. Va. 582, 39 S. E. 676.
* 1893, Spaulding v. Merrimack, 67 N. H.
382, 36 Atl. 253 ; Baldwin v. Wentworth, ib.
408, 36 Atl. 365 ; 1897, Perkins v. Roberge, 69
id. 171, 39 Atl. 583. Ornitra: 1900, Cooper v.
Hopkins, 70 id. 271, 43 Atl. 100.
§§ 1000-1015] COLLATERAL CONTRADICTION. § 1005
per Curiam: " The question is whether the statement of an immaterial fact can be con-
tradicted, if it comes out on the examination of a witness in chief. Now neither party
can be allowed to show the internal condition of this institution, by way of excuse, justi-
fication, or apology for the attack made upon it; so upon an indictment for setting fire
to a house of ill-fame, the bad character of the house is no ground of defence. . . . Now
here the evidence as to the insanity of the nun was immaterial, . . . and the other party
cannot call witnesses to contradict it."
§ 1005. Same : (2) Facts discrediting the 'Witness in respect to Bias,
Corruption, SkiU, Knowledge, etc. Since, by the rule in Attorney-General
V. Hitchcock, any fact which would be independently admissible may be
made the subject of a contradiction, a second class of facts includes those
which could otherwise be receivable for the purpose of impeaching some
specific testimonial quality. The range of such modes, of impeachment has
already been considered (ante, §§ 943-996); and they must now be reviewed
in the application of the present rule :
(a) Moral character. Particular acts of miscondiict are not provable by
extrinsic testimony to impeach moral character {ante, § 979) ; they are there-
fore also not provable merely in contradiction of the witness' statements on
the stand ; ^ except a judgment of conviction of crime, which, so far as it is
provable by extrinsic testimony to impeach character {ante, §§ 980, 987), is
therefore also thus provable in contradiction.*
(J) Bias. Particular circumstances and expressions indicating bias are
provable by extrinsic testimony {ante, §§ 948-950); they are therefore also
provable in contradiction :
1836, Coleridge, J., in Thomas v. David, 7 C. & P. 350 (assumpsit on a promissory
note; the plaintiff's female servant had attested the signature; being asked, on cross-
examination, " whether she did not constantly sleep in the same bed with her master, the
* 1871, R. V. Holmes, L. R. 1 C. C. R. 334 other men about the time in question, ex-
(rape ; intercourse of the prosecutrix with a third eluded). In some of these cases, this prohibition
person) ; 1880, Com. v, Dunan, 128 Mass. 422 of extrinsic testimony of misconduct is put on
(the witness' residence); 1881, Hamilton v. the sole ground of Collateral Contradiction;
People, 46 Mich. 186, 9 N. W. 247 ; 1882, Oris- e. g. 1871, R. v. Holmes, L. R. 1 Cr. C. R.
coll V. People, 47 id. 416, 11 N. W. 221 ; 1883, 334 (attempt at rape ; the prosecutrix denied
People V. Wolcott, 51 id. 617, 17 N. W. 78 ; having had intercourse with one S., and a con-
1863, State v. Knapp, 45 N. H. 154 (rape, in- tradiction was refused). But this error is a
tercourse with the prosecutrix); 1887, Piillen ». fundamental one, for it ignores the vital dis-
PuUen, 43 N. J. Eq. 136, 6 Atl. 887 (whether tinction, of history as well as of principle, he-
the witness had committed larceny) ; 1900, Bnl- tween the present rule and the rale against
lock V. State, 65 N". J. L. 557, 47 Atl. 62 ; extrinsic testimony of particular misconduct.
1862, Newcomb v. Griswold, 24 N. Y. 299 ; The distinction has been already pointed out
1873, Stokes v. People, 53 id. 175 (a witness ante, § 979. It is enough here to note that
denied having "taken things"; error not al- there is a double exclusion of such evidence, i.e.
lowed to he shown) ; 1881, Conley v. Meeker, (1) it cannot enter for the purpose of showing
85 id. 618 (a witness answered evidence of his Character, for reasons affecting that purpose of
conviction for crime by declaring that he had proof; and (2) it cannot enter as a Contradic-
siuee reformed ; evidence of his having, since tion, for reasons already here explained. Corn-
discharge, conducted gambling-houses, was re- pare Alderson, B., in Attorney-General v. Hitch-
jected as collateral) ; 1888, People v. Greenwall, cock (1847), 1 Exch. 103 ("the inadmissibility
108 id. 296, 300, 15 N. E. 404 (that the defend- of such a contradiction [as to his personal char-
ant, a witness, had committed a burglary, denied acter and as to his having committed any paiv
by him, excluded) ; 1891, Humphrey v. State, ticular crime] depends, indeed, upon another
78 Wis. 571, 47 N. W. 386 (mere reflections on principle altogether").
the complainant's character in a bastardy case, " 1877^ People v. Chin Mook Sow, 51 Gal.
but not actual opportunities of intercourse with 597 ; and cases cited ante, §§ 980, 987.
VOL. II.— u lies
1005
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIII
plaintiff," and denying it, she was allowed to be contradicted): "If the question had
been whether the witness had walked the streets as a common prostitute, I think that
that would have been collateral to the issue, and that, had the witness denied such a
charge, she could not have been contradicted. But here, the question is whether the
witness had contracted such a relation with the plaintiff as might induce her the more
readily to conspire with him to support a forgery, just in the same way as if she had been
asked if she was the sister or daughter of the plaintiff and had denied that." '
(c) Corruption. For the same reason as the preceding, a contradiction is
permissible upon facts which tend to show (ante, §§ 956-963) the witness'
corrupt testimonial intent for the case in hand.*
{d) Skill. Particular instances of error indicating lack of expertness are
usually not provable by extrinsic testimony, while circumstances other than
these, diminishing the witness' qualifications, may perhaps be thus proved
{ante, §§ 991, 992). Such facts, therefore, may or may not be provable in
contradiction.^ The trial Court should have discretion.
(e) Intoxication, and Illness. The facts of intoxication and of illness, at
the time of the events observed or of giving testimony, are admissible to dis-
credit the witness' testimonial powers {ante, §§ 933, 934). This class of
facts is therefore also provable in contradiction.^
' Accord: 1858, O'Brien, J., in R. v. Burke,
8 Cox Or. C. 49 ; 1903, Purdee v. State, — Ga.
— , 45 S. E. 606 ; 1900, Whitney v. State, 154
Ind. 573, 57 ^f. E. 398 ; 1901, Powers v. Com.,
— Ey. — , 61 S. W. 735 ; 1890, Helwig v. Las-
cowski, 82 Mich. 623, 46 N. "W. 1033 ("the ques-
tion of the status of the witness as to interest,
relationship, or conviction of crime, is not now
and never was a collateral one, in the sense that
the party cross-examining him is bound by his
answer ") ; 1852, Martin v. Farnham, 25 N. H.
199 ; 1881, Watsou v. Twombly, 60 id. 491 ;
1856, Van Wyek v. Mcintosh, 14 N. Y. 439,
443 ; 1896, Cathey v. Shoemaker, 119 N. C. 424,
26 S. E. 44; 1900, Hayes v. Smith, 62 Oh.
161, 56 N. E. 879 ; 1900, Livermore F. & M. Co.
V. Union S. & C. Co., 105 Tenn. 187, 58 S. W.
270, semble; 1895, Fenstermaker v. R. Co., 12
Utah 439, 43 Pac. 112.
Add the similar cases on self-cordradiction,
post, § 1023.
Contra: 1879, Haley v. State, 63 Ala. 86,
semble; 1882, Langhorne v. Com., 76 Va. 1019
(refusing to allow evidence of incorrectness in
matters not admissible in chief to show bias,
since the rule on the latter subject is strict in
this State ; see ante, § 950).
* 1850, Melhuishw. Collier, 19L.J.Q. B. 493
(an attempt b}' a party to suborn testimony ;
admitted) ; 1889, Alexander v. Vye, 16 Can.
Sup. 501, 502, 521 (that the defendant, denying
the genuineness of a document, could be asked
whether he had not changed his style of signa-
ture since action begun, and his denial refuted
by documents bearing his signature, allowed ;
two judges diss, on the latter point); 1897,
State V. McKinistry, 100 la. 82, 69 N. W. 267
(an attempt to bribe); 1901, Powera v. Com.,
— Ky. — , 63 S. W. 976 (bribery) ; 1899,
1164
Richardson v. State, 90 Md. 109, 44 Atl. 999
(attempt to bribe another witness) ; 1871, Strang
V. People, 24 Mich. 7 (facbi tending to show
a corrupt agreement between the witness ajid
his party). Contra: 1811, Harris «. Tippett,
2 Camp. 637 (whether the witness had at-
tempted to dissuade opponent's witness from
attending ; contradiction excluded, because
"collateral," "irrelevant to the issue"; but
this ruling has been universally treated as er-
roneous ; see the exposition post, § 1023, under
Self-Contradiction).
For the application of the rule to proof of
particular errors to impeach the credit of a
party's hook of accounts, see post, §§ 1531,
1557.
For proof of prior false claims or charges in
impeachment, see ante, § 963.
s 1867, Whitney v. Boston, 98 Mass. 316
^error as to the dimensions of a s'hop, illustrat-
ing the witness' acquaintance with land valued
by him; admitted); 1895, Kennett v. Engle,
105 Mich. 693, 63 N. W. 1009 (a physician was
asked a test question unconnected with the case,
and he was not allowed to be contradicted).
Compare the citations ante, §§ 991, 992.
For proof of other sales, to discredit a value-
witness, see ante, § 464.
8 1900, Cooper v. Hopkins, 70 N. H. 271, 48
Atl. 100 (trespass to an alleged shop-lifter ;
clerk testifying for defendant allowed to be con-
tradicted as to her excitement at the time, be-
cause this affected her ability "to correctly
observe what took place " ; but not as to her
statements that the trespassing clerk "had done
the same thing before ") ; 1893, People v. Web-
ster, 139 N. Y. 73, 86, 34 N. E. 730 fthat she
was under the influence of opium at the time,
allowed, since "the value of her testimony de-
§§ 1000-1015] COLLATERAL CONTRADICTION. § 1005
(/) Opportunity of observing the events. A necessary qualification in a
witness is personal knowledge, i. e. an opportunity, as to place, time, proxim-
ity, and the like, to observe the event or act in question (ante, § 650), and
the deliciency of such opportunity may be shown to discredit {ante, § 994).
Hence, all facts which bear upon the position, distance, and surroundings,
the bystanders and their conduct, the time and the place, the things attract-
ing his attention, and similar circumstances, said by the witness to have been
observed by him at the time of observing the main event testified to by him,
are material to his credit in so far as they purport to have formed a part of
the whole scene to his observation; thus, if an error is demonstrated in
one of the parts observed, the inference (more or less strong) is that his ob-
servation was erroneous (or his narration manufactured) on other and more
important parts also. This source of discredit is of vast importance in the
overthrow of false or careless testimony ; ,and its permission must be pro-
vided for in any definition of the term "collateral":
1684, Lady Imfs Trial, 10 How. St. Ti-. 559] 569 ; the defendant's title depended on a
pretended old deed, from one Maroellus Hall to one Stepkins, found opportunely by one
Knowles in his own garret ; Knowles did not know that any Hall deeds affected the de-
fendant's title, and he was questioned as to how he had known in his pretended search
that tliis deed would be material; L C. J. Jeffreys: " Look you, then, we ask you how
you came to know it was a deed belonging to Stepkins ? " Witness ; " I read the back-
side, and put my hand to it"; L. C. J. : " How came you to put your hand to this deed
as belonging to Stepkins, when you never looked into the deed [as you have ah-eady
sworn]?"; Witness: " When I found this deed to have written upon it ' Marcellus Hall,'
I did believe it was something that concerned the Stepkins' " ; L. C. J. : " Let us see the
deed now. You say that was the reason, upon your oath ? " ; Witness: " Yes, it was " ;
L. C. J. : " Give Mr. Sutton [the defendant's attorney] his oath. Look upon the out-
side of that deed, and tell us whose handwriting that is " ; Sutton : " All but the word
' Lect.' is my handvpriting " ; L. C. J. : " Then how couldst thou, [Knowles,] know this
to belong to the Stepkins' by the words ' Marcellus Hall ' when you first discovered this
deed in September, 1682, and you found it by yourself and put your hand to it, and yet
that 'Marcellus Hall' be written by Mr. Sutton, which must be after that time?"
Counsel for defendant : " Here are multitudes of deeds, and a man looks on the inside
of some and the outside of others ; is it possible for a man to speak positively as to all
the particular deeds, without being liable to mistake?" L. C. J..- "Mr. Solicitor, you
say wrell. If he had said, ' 1 looked upon the outside of some and the inside of others,
and wherever I saw either on the outside or in the inside the name of Stepkins or Mar-
cellus Hall, I laid them by and thought they might concern my lady Ivy,' that had been
something. But when he comes to be asked about this particular deed, and he upon his
oath shall declare that to be the reason why he thought it belonged to Stepkins, [namely,]
because of the name of ' Marcellus Hall ' on the outside, and never read any part of the
inside, when Sutton swears ' Marcellus Hall ' was [later] written by him, what would you
have a man say ? . . . And you shall never argue me into a belief that it is impossilile for
a man to give a true reason, if he have one, for his remembrance of a thing " ; and before
pended largely on the accuracy of her percep- C. A. 487, 72 Fed. 142 (dates of occurrences
lions ") ; 1893, State v. Rollins, 113 N. G. 722, being material, extrinsic testimony was adralt-
732, 18 S. E. 394 (intoxication at the time of ted as to a gross eri'or of date n)ade by ani ^
the events ; because it did not afifecthis charac- witness on a point otherwise wholly immaterial), ;:'
tor, but "his capacity to know and remember 1898, Kuenster w. Wnodhouse, 101 Wis. 216, 77
with accuracy what took place," contradiction N. W. 165 (contradiction allowed as to intoxica-
was allowed) ; 1896, Ludtke v. Hertzog, 18 C. tiou at and about the time of the events).
1165
1005
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIII
long the defendant's counsel were obliged to withdraw the witness as a clear liar ; the
defendant was afterwards indicted for forging the deeds.
1861, Robinson, C. J., in K. v. Brown, 21 U. C. Q. B. 330, 336 (indictment for mur-
der ; M. testified that she saw the defendant and S. throw the deceased off a bridge, giv-
ing a detailed description of S. ; the defendant offered a witness D. to show that S. was
50 miles away at that time ; the judge insisted that S. himself should be called, and if
contradicted, then D. ; held, that D. also should have been called, the point of contradic-
tion being material) : " It appears to me that any fact so closely connected with the
alleged offence as to be in fact a part of what was transacted or said to be transacted
at the very moment cannot be treated as irrelevant in investigating the truth of the
charge. If, for instance, the witness for the Crown, knowing a particular watch or some
remarkable article of dress that the deceased usually wore, had sworn that she saw Brown
take the article from his person before throwing him into the river, it would have been a
material circumstance to be shown on the part of the prisoner, if it could have been, that
the deceased had left the watch or the article of dress at home when he went out that
evening, and if they could be produced to the jury on the trial. So if the Crown witness
had sworn the offence was committed in some obscure hovel in the woods or in the town,
which she pretended to describe with certainty and which she had known well, it could
not have been irrelevant to the case to prove that that house or hovel had been totally
destroyed by fire some weeks before the time spoken of, so that the murder could not
have been committed in it. Yet in all these cases it must be admitted that if the crime
of murder were committed by the prisoner, he would not the less be guilty of that crime
because the deceased had not been robbed as well as murdered, or because he had not
been killed in the place described by the witness ; nor would the prisoner be less guilty of
murder if he committed the deed alone, or without being assisted by Sherriok as tl
witness described." '
T The following cases illustrate this mode of
contvadiction : 1679, Harcourt's Trial, 7 How.
St. Tr. 311, 387 (Dates, the mainstay of the
prosecution, had testified that one Ireland, an-
other conspirator, not on trial, had in his pres-
ence parted from the defendant at London,
between Aug. 8 and 12 ; it was proposed to
show that this was false, Ireland being in the
country at the time ; L. C. J. Scroggs : "They
[defendants] must have right, though there be
never so muuh time lost, and patience spent.
Say they, ' We must prove and contradict men
by such matters as we can ; people- may swear
downright things, and it is impossible to con-
tradict them ; but we will call witnesses to
prove those particulars that can be proved '" ; and
it was by just such minor falsities as this that
the whole monstrous fabric of Oates' perjury
was later discovered and his pnnishment ob-
tained) ; 1831, R. ■/. Campliell, Or. & Dix Abr.
581 (contradiction as to the presence at the
riot of one 0., jointly indicted, but not on trial ;
admitted) ; 1838, R. t. McKenna, Cr. & Dix
Abr. 580 (contradiction as to the presence at
the murder of one M., jointly indicted with de-
fendants, but now at large; admitted) ; 1842,
E. V. Overton, 2 Moo. Cr. C. 263 (perjury ; on
a charge against H. of coursing with a dog
without a license, the now defendant testified
that the dog was his, and in giving the date
of the receipt for his purchase from H. swore
falsely ; yet either date if correct would have
exonerated H. ; evidence of the incorrectness
of the assertion admitted by all the Judges
1166
present) ; 1862, K. v. Dennis, 3 F. & F. 602
(eye-witness of a crime ; present statement
that she was not acquainted with the man ;
the contrary offered ; admitted) ; 1902, Barry
V. People, 29 Colo. 395, 68 Pac. 274; 1893,
East Tennessee R. Co. v. Daniel, 91 Ga. 768,
18 S. E. 22 (contradiction allowed, against an
alleged eye-witness, of his statement that im-
mediately before arriving at the place he made
a purchase at a store ; "it contradicts the wit-
ness as to the train of events which led him to
be present, and thus tends to discredit him as to
the fact of his presence ") ; 1900, Tiller v. State,
111 id. 840, 36 S. E. 201 (four persons being
defendants, testimony to the presence of all four
at a place was allowed to be shown erroneous,
as to one of the four, by another of the four) ;
1834, Goodhand v. Benton, 6 G. & J. 481, 488
(title to a slave ; whether the possession by B.
was in the year 1816 or 1817 was material ; a
witness who testified that, on going to pay rent
to B. in 1817 he saw the slave in B.'s posses-
sion, and that, the final settlement occurred
two years later, was allowed to he contradii^ted
by evidence that the final settlement occurred
in 1818, so that he was in error in one or the
other statement) ; 1859, Stephens ». People, 19
N. Y. 572 (charge of murder by arsenic ; testi-
mony for defence that the arsenic purchased by
defendant was used for rats in the cellar where
provisions were eaten by them ; contradiction,
that no provisions were kept iu the cellar, al-
lowed) ; see the cases cited post, § 1006, for
cross-examination only. Excluded, but errone-
§§1000-1015] COLLATERAL CONTEADICTIOK §100^
(g) Recollection. When the memory is tested by asking for the witness'
recollection of facts not otherwise material, his errors of recollection cannot
be shown by extrinsic testimony (ante, § 995). But circumstances which
form the alleged grounds of his recollection of material facts testified to by
him should be subject to contradiction, for the same reason as in the preced-
ing topic*
(h) Narration. Circumstances affecting the witness' ability to narrate his
story intelligently and correctly are material to his credit, and should be sub-
ject to contradiction.*
(j) Prior consistent statements of the witness are usually not provable to
corroborate him {post, § 1124); hence, his error in affirming that he has
made them is not provable by other witnesses, except in those situations in
which those statements would have been admissible fpr him.^*
In general, the exclusionary rule seems to be too strictly enforced. '' Every-
thing," said Lord Denman, " is material that affects the credit of the witness."
The discretion of the trial Court should be left to control. It is a mistake to
lay down any fixed rule which will prevent him from permitting such testi-
mony as may expose a false witness. History has shown, and every day's
trials illustrate, that not infrequently it is in minor details alone that the
false witness is vulnerable and his exposure is feasible.^^
§ 1006. Same ; Collateral Questions on Cross-Examination. (1) The essen-
tial feature of this mode of impeachment is the demonstration of the witness'
error {ante, § 1000). This not only can be but often is accomplished by
cross-examination alone, — and not only (as a matter of course) through the
witness' own confession of error, but through an instant comparison of the
witness' statement with truths of common knowledge (judicially noticeable)
or with tangible objects already in the case. The following anecdotes illus-
trate the possibilities of this mode :
ously: 1897, Chicago City R. Co. o. Allen, 169 sible independently in corrohoration) ; 1843,
111. 287, 48 N. E. 414 (contradiction of a witness Whitelbvd v. Burckmyer, 1 Gill 140 (the cross-
explaining presence at a place as going there to examining party's own declarations in his
vote, by showing that it was not his lawful vot- favor, excluded); 1889, Monis v. E. Co., 116
ing place, excluded). N. Y. 556, 22 N. E. 1097 (a showing of error
' 1854, Cora. V. Hunt, 4 Gray 422 (that a as to whether he had said what he now says,
memorandum, said by the witness to have been excluded),
written by him, and serving as a record of his " -The following celebrated instance of per-
past recollection, was in fact not in his writing ; jury illusti'ates this : 1681, CoUedge's Trial, 8
admitted) ; compare the cases cited ante, § 995. How. St. Tr. 549, 641 (Dugdale the informer,
' Cases cited ante, § 996. The following case who had for three years helped send to the gal-
was erroneously decided by the majority ; com- lows m.any persons accused of the supposed
pare with it O'Connell's story, cited ante, § 811 . Popish Plot, was in this case discredited by the
1858, R. V. Burke, Ire., 8 Cox Cr. 45 (witness charge that he had given out that the Papists
who stated that he could not speak English and had poisoned him, though in fact his disease
was therefore examined in Irish through an in- was the French pox ; whereon Dugdale on the
terpreter ; not allowed to be contradicted as to stand said : " If any doctor will come forth and
having spoken in English within a few days ; say he cured me of the clap or any such thing, I
three judges diss.). will stand guilty of all that is imputed to me ";
" 1861, M'Kewan v, Thornton, 2 F. & F. 699 whereon, later, " Dr. Lower, the most noted (ihy-
(ilenial of the fact of a formfcr complaint ; cor- sician then in London, proved it at the Council
reStion allowed because the complaint would Vjoard, both by his bills and by the apothecary,
thus appear not to have been an afterthought, that he had been under cure in his hands for that
as claimed ; this illustrates the principle, for the disease ; which was such a slur upon Dugdale'.s
former statement would here have been admis- credit that he was never used as a witness more ").
1167
§ 1006 TESTIMONIAL IMPEACHMENT. [Chap. XXXIII
Anon., Green Bag, 1898, X, 53 : " My poor old confessor. Father Grady," said O'Connell,
" who resided with my uncle when 1 was a boy, was tried in Tralee on the charge of be-
ing a Papish priest, but the judge defeated Grady's prosecutors by distorting the law in
his favor. There was a flippant scoundrel who came forward to depose to Father Grady's
having said mass. 'Pray, sir,' said the judge, ' how do you know he said mass? ' ' Be-
cause I heard him say it, my Lord.' 'Did he say it in Latin ? ' asked the judge. 'Yes,
my Lord.' ' Then you understand Latin ? ' ' A little.' ' What words did you hear him
say ? ' ' Ave Maria.' 'That is the Lord's Prayer, is it not ? ' asked the judge. ' Yes, my
Lord,' was the fellow's answer. ' Here is a pretty witness to convict the prisoner,' cried
the judge. ' He swears Ave Maria is Latin for the Lord's Prayer.' The judge charged
the jury for the prisoner, so my poor old friend Father Grady was acquitted."
Anon., Green Bag, 1892, IV, 319 : " One of the witnesses to the will was the deceased
man's valet, who swore that after signing his name at the bidding of his master, he then,
also acting under instructions, carefully sealed the document by means of the taper by
the bedside. The witness was induced to describe every minute detail of the whole
process, the exact time, the position of the taper, the size and quality of the sealing-wax,
' which,' said the counsel, glancing at the document in his hand, ' was of the ordinary
red description ? ' ' Red sealing-wax, certainly,' answered the witness. ' My Lord,' said
the counsel, handing the paper to the judge, ' you will please observe that it was fastened
with a wafer.'"!
(2) Since the only object of the excluding rule is to prevent confusion of
issues and unfair surprise by extrinsic testimony {ante, § 1002), it follows
that the cross-examiner may at least question upon even collateral points,
subject always to the general discretion of the trial Court {ante, § 944) to
limit cross-examination.^
(3) The rule for prior inconsistent statements, requiring that the witness he
asked, before the extrinsic testimony be produced {post, § 1025) has of course
no application here.^
(4) The two expedients of Confrontation of Witnesses {post, § 1395) and
Sequestration of Witnesses {post, § 1838), which have a probative operation
similar to that of the present mode of impeachment, are not obnoxious to the
present rule. By the former expedient, in its earlier form, the contradictory
witnesses of opposing sides were confronted with each other and made to
repeat their stories, in the expectation that the untruthful one would break
^^ccorrf.- 1726, Gilbert, Evidence, 147 ("Now demonstration, see the South Carolina cross-
that which sets aside credit and overthrows his examination (1899, Marshall Brown, Wit and
testimony is the incredibility of the fact . . . ; Hnmor of the Bench and Bar, 8); O'Connell's
for if the fact be contrary to all manner of expe- cross-examination (ih. 370).
^rience and observation, it is too much to receive ^ 1861, R. v. Brown, 21 U. C. Q. B. 334
it upon the oath of one witness"); 1887, Becker (quoted ante, § 1005) ; 1871, R. v. Holmes, 12
V. Koch, 104 N. Y. 394, 401, 10 N. E. 701 (the Cox Or. 143, per Kelly, C. B., semble. The con-
witness testified to an assignment in which ap- trary ruling, in Spenceley v. Wilmot, 7 East 108
parently fictitious debts were included ; on fur- (1806), has often been cited obiter, and sonie-
Iher explanation, however, he testified that the times followed : 1903, State v. Caudle, 174 Mo.
debts were not fictitious ; the trial Court ruled 388, 74 S. W. 621. But it is obviously incon-
that as no extrinsic contradiction of the testi- sistent with the general right of the cross-ex-
mony had been offered, the explanation must be aminer to test memory on all points {ante,
accepted as true ; Acici, however, that the explana- § 995), and to refrain from stating the purpose
tion could be shown false " by its own absolute of his questions {post, § 1871).
and inherent improbability"; practically over- » 1903^ Younger v. State, — Wyo. — , 73
ruling Fordhamu. Smith, 46 id. 683). Contra, Pac. 551. Ciwiira, bnt erroneous : 1861, Wright
hut erroneous : 1887, People v. Ching Hing v. Cumpsty, 41 Pa. 110 (whether the witness had
Chang, 74 Oal. 390, 16 Pac. 201. been indicted).
For other good examples of this kind of
1168
§§ 1000-1015] COLLATEEAL CONTEADICTION. § 1007
down ; but it was assumed that the contradiction was on a material point.
By the latter expedient, the inconsistencies of narration in witnesses called
on the same side were brought to light, and here the telling inconsistencies
might involve only minor details, — as in Susannah's classical case. But no
extrinsic testimony was involved ; for the witnesses were by supposition in
the case for other purposes, and a cross-examination would be all that was
needed.
§ 1007. Contradicting Answers on the Direct Examination ; Supporting the
Contradicted "Witness. Since the main object underlying the rule is to avoidi
unfair surprise and confusion of issues {ante, § 1002), the obvious expedient
for this purpose is to cut off testimony which would not have been already
proper for other purposes. But occasionally are found misapprehensions of
the fundamental purpose of the rule.
(1) Occasionally, before the theory had been completely worked out by the
Courts, the argument of Unfair Surprise was treated as the only objection,
and it was thought that where the assertion desired to be contradicted had
been made on the direct examination — i. e. had been " volunteered," as the
phrase went — , the witness had himself only to blame if he was not pre-
pared to support every statement thus volunteered ; in short, that all asser-
tions made on the direct examination could be contradicted and shown erroneous,
and that the prohibition was equally inapplicable to assertions volunteered on
the cross-examination; upon which, it was thought, there could not be any
unfair surprise. This form of the rule, which still crops up occasionally,^ is
based on an ignoring of the other cooperating reason for the rule, i. e. Con-
fusion of Issues ; and even if it could be conceded (as it cannot) that this
form sufficiently obviates the reason of Unfair Surprise, the other reason
would still remain, and would be equally fatal, even when the assertion on
the collateral matter was made on the direct examination. The following
passage satisfactorily disposes of the error in question :
1859, R. W. Walker, J., in Blakey's Heirs v. Blakey's Executrix, 33 Ala. 619: "In
Dozier v. Joyce ^ it seems to have been considered that the main reason for the rule which
prevents a cross-examination upon immaterial matters for the mere purpose of contradict-
ing the witness, is that he cannot be presumed to come prepared to defend himself on such
collateral questions ; and, as this reason fails when the testimony is voluntarily given, the
rule itself does not in that case apply. The reason referred to is doubtless one of those
on which the rule was founded, but it is not the only or even the chief one. The prin-
cipal reasons of this rule are, undoubtedly, that but for its enforcement the issues in a
cause would be multiplied indefinitely, the real merits of the controversy would be lost
sight of in the mass of testimony to immaterial points, the minds of jurors would thus be
•• 1895, Redinf^on v. Cable Co., 107 Cal. 317, necessary to be heard to repel the prejudice
40 Pao. 435 ; 1896, People u. Koemer, 114 id. 51, calculated to be produced by the improper
45 Pac. 1003; 1864, Carpenter v. Ward, 30 testimony").
N. Y. 243 ; 1898, People v. Van Tassel, 156 id. For the nearly opposite error — that an an-
561, 51 N. E. 274 ("must be material or relate swer concerning the cross-examiner's own case,
to a fact brought out by adverse counsel"); improperly inquired into cm cross-examination,
1893, Union P. R. Co. v. Reese, 5 C. C. A. 510, cannot be contradicted, because of the rule
56 Fed. 291 ; 1869, Ellsworth v. Potter, 41 Vt. against impeaching one's own witness, see ante,
690 (" it was entirely for the Court to say how § 914.
much, if anything, in their discretion was " 1838, 8 Porter 303.
1169
§ 1007 TESTIMONIAL IMPEACHMENT. [Chap. XXXm
perplexed and confused, and their attention wearied and distracted, the costs of litigation
would be enormously increased, and judicial investigations would become almost inter-
minable. An additional reason is found in the fact that, the evidence not being to points
material in the case, witnesses guilty of false swearing could not be punished for perjury.
These reasons apply equally whether the evidence on such collateral matters is brought
out on the examination in chief or upon cross-examination, and whether the witness gives
it voluntarily or in response to questions calling for it." '
(2) If the opposing party has succeeded in introducing, without objection
ly the other, testimony to contradict on a collateral point, this does not justify
the other in proceeding to join issue and adduce new testimony in support of
the original witness' statement.* The general rule that one irrelevancy does
not justify another {ante, § 15) is not here controlliag, for the collateral error
may he relevant to discredit, and is objectionable for reasons of policy rather
than of irrelevancy. It is the same reason of policy {i. e. Confusion of Issues)
that here operates to stop the controversy from being carried any further ;
and there is no unfairness, because the original party has only himself to
thank for not preventing the introduction of the contradicting testimony.
The argument that the cross-examiner has no right to object to the answering
testimony because he himself began the contradiction ^ is beside the point ;
for it is not a question of rights, but of the discovery of truth, and iu the
interest of truth the confusion of issues by immaterial controversies is to be
prevented.
§ 1008. Falsua in uno, falsus in omnibus ; In general. The maxim, " He
who speaks falsely on one poiut will speak falsely upon all," is in strictness
concerned, not with the admissibility, but with the weight of evidence. The
jury are told by it what force to give to a falsity after the evidence has shown
its existence. But the maxim occurs so often in connection with the use of
Contradictions and of Self-Contradictions (post, § 1018) and throws so much
light on their nature, that it is desirable to analyze the beariugs of the maxim
as applied by the Courts. It may be said, ouce for all, that the maxim is in
itself worthless, first, in point of validity, because in one form it merely contains
in loose fashion a kernel of truth which no one needs to be told, and in the
others it is absolutely false as a maxim of life ; and secondly, in point of utility,
because it merely tells the jury what they may do in any event, not what they
must do or must not do, and therefore it is a superfluous form of words. It
is also in practice pernicious, first, because there is frequently a misunderstand-
ing of its proper force, and, secondly, because it has become in the hands of
many counsel a mere instrument for obtaining new trials upon points whoUy
unimportant in themselves.^
8 Accord: 1834, Com. v. Buzzell, 16 Pick, affidavit of the plaintiffs witness; and the
158. plaintiff was then not allowed to substantiate
* 1840, Philadelphia & T. E. Co. v. Stimpson, those statements).
14 Pet. 461 (senible ; but here rejected on other » 1873^ Stati v. Cardoza, 11 S. C. 242, per
grounds) ; 1840, Stevens v. Beach, 12 Vt. 587 ; Willard, C. J.
1847, Charlton v. Unis, 4 Gratt. 61 (where the ^ The following statutes are the basis of some
plaintiff allowed without objection the defendant of the ensuing rulings : Alaska C. 0. P. 1900,
to offer evidence disproving a collateral state- § 673 (like Or. Annot. C. 1892, § 845) ; Cal.
ment contained in a prior self-contradictory C. C. P. 1872, § 2061 (3) ("a witness false in
1170
§§ 1000-1015] FALSUS IN UNO. § 1010
§ 1009 ; Same : (1) First Form of Rule : The entire testimony must be re-
jected. The notion which was originally associated with this maxim was
that the testimony of one detected in a lie was wholly worthless and must
of necessity be rejected.^ This notion was quite consistent with the artificial
philosophy of testimony {post, § 2032) which prevailed as late as the 1700s,
and was only abolished from the law (long after it had practically lost its
social acceptance) as a result of Bentham's pungent criticisms. The philosophy
of character which weighed testimony by numerical units and absolutely
disqualified one who had been guilty of perjury would readily reject the tes-
timony of one detected in a single lie. Its attitude is represented in the
following passage :
1821, Mr. Thomas SlarUe, Evidence, I, 583 : " A witness who gives false testimony as
to one particular cannot be credited as to any, according to the legal maxim /aZsum in uno,
falsum in omnibus. The presumption that the witness will declare the truth ceases as soon
as it manifestly appears that he is capable of perjury. Faith in a witness' testimony
cannot be partial or fractional ; where any material fact rests on his testimony, the degree
of credit due to him must be ascertained, and according to the result his testimony is to
be credited or rejected."
1828, Henderson, J., in State v. Jim, 1 Dev. 510: "The jury's belief must be founded
on that which is regarded in law as testimony. ... I can see no difference in principle
— and if so, there should be none in practice — between a person heretofore convicted
and one who stands convicted before the jury in the case they are trying. Hence the
majiim falsum in uno, falsum in omnibus. Were it otherwise, the law would be untrue to
itself."
1861, Ranney, J., in Staffer v. State, 15 Oh. St. 47, 56 : " But it is said that he may still
speak the truth upon other points, although perjured as to one or more. This is very true ;
very few men are so utterly false as not to be compelled, from the exigencies of their
being, to utter more truth than falsehood. But it must also be admitted that the motive
which has prompted him to commit perjury in one part of his testimony may and is very
likely to lead him to make it effective by falsifying other material points. At least it is
left entirely uncertain whether he has uttered truth or falsehood ; and it is not consistent
with that moral certainty of the existence of facts which the law requires before men are
affected in their lives, liberty, or property, to act upon what may be true or false, or to use
such corrupt and deceptive instrumentalities in the pursuit of truth." ^
§ 1010. Same : (2) Second Form of Rule : The entire testimony may be
rejected. But in spite of the careless perpetuation of this artificial notion by
one part of his testimony is to he distrusted in ^ The doctrine has been oeca.sionally re-
others") J P. C. § 1102 ; Ga. Code 1895, § 5295 peated : Ga. : 1853, Day v. Crawford, 13 Ga.
(if "wilfully and knowingly falsely," "ought 612; 1874, Pierce 1>. State, 53 id. 368 ; Kan..
to be disregarded eutirely, unless corroborated 1866, Campbell v. State, 3 Kan. 488, 496 ; 1871,
hy circumstances or other unimpeached evi- Hale v. Kawallie, 8 id. 136, 142, semSfo (but this
-ience") ; Mont. C. C. P. 1895, § 3390 (like Cal. was overniled later : 1875, Shellabarger ■!). Nafus,
C. C. P. § 2061) ; Or. C. C. P. 1892, § 845 (like 16 id. 547, 554); N. Y. : 1799, Silva v. Low,
Cal. C. 0. P. § 2061 ). Compare also the now obso- 1 Johns. Cas. 184, 188, per Eadcliff, J. (phrased
lete principle nemo turpiludinem suam alUgans in a limited form, the judge drawing inf'ereiices
audiendua {ante, §525), which has certain rela- as a jury would) ; Nebr. : 1880, Dell v. Oppen-
tions with the present principle. heimer, 9 Nebr. 456, 4 N. W. 51 ; Oh. . 1864,
1 1743, Craig v. Earl of Anglesea, 17 How. Stoffer v. State, 15 Oh. St. 64 ; Pa. : 1849,
St. Tr. 1421, per Bowes, C. B. The following Miller v. Stem, 12 Pa. 390, semble ; U. S. :
case seems to be the earliest instance of its ap- 1822, The Santissima Trinidad, 7 Wheat. 339,
pearance in our law : 1684, Hampden's Trial,
9 How. St. Tr. 1053, 1101 (quoted by Mr. Wil-
liams, for the defence).
1171
§ 1010 TESTIMONIAL IMPEACHMENT. [Chap. XXXIII
a few authorities, it had ceased to be the law of England by the beginning
of the ISOOs.i There are on principle two reasons which exhibit its un-
soundness as a rule of law. (1) It is untrue to human nature. It is not
correct that a person who tells a single lie is therefore necessarily lying
throughout his testimony, nor that there is any strong probability that he is
so lying. The probability is to the contrary. (2) The jury are the part of
the tribunal charged with forming a conclusion as to the truth of the testi-
mony offered. They are absolutely free to believe or not to believe a given
witness. Once the witness is determined by the judge to be qualified to
speak, the belief of the jury in his utterances rests solely with themselves.
Hence the judge cannot legally require them to believe or to disbelieve any
portion of testimony. There therefore cannot be, for the jury, a " must " in
this matter, but only a " may " :
1855, Pearson, J., in State v. Williams, 2 Jones L. 269 : " When the credit of a witness
is to be passed upon, each juror is called upon to say whether he believes him or not.
This belief is personal, individual, and depends upon an infinite variety of circumstances.
Any attempt to regulate or control it by a fixed rule is impracticable, worse than useless,
inconsistent and repugnant to the nature of a trial by jury."
1856, Applelon, J., in Parsons v. Huff, 41 Me. 411 : " The truth or falsehood of testi-
mony depends upon the motives, or the balance of motives, acting upon the witness at
the time of its utterance. The motives which influence the human mind are as various
as the feelings and desires of man. . . . There is no motive the action of which upon
testimony is uniform. The same motive may lead to truth or to falsehood. . . . The
witness may be exposed to the action of a different class of motives as to the several
facts to which his testimony may relate. It is obvious therefore that, of the testimony
of the same witness, part may be true and reliable and part false and mendacious. A
rule of law which requires a jury to infer from one false assertion that all facts uttered
by the witness are false statements is manifestly erroneous. . . . It is the determination
of the trustworthiness or untrustworthiuess of testimony in advance of its utterance,
and in utter and hopeless ignorance of all facts essential to a correct decision."
1864, Denio, C. J., in Dunn v. People, 29 N. Y. 529: " The true question is whether,
when it appears that the witness has sworn differently upon the same point on a former
occasion, he is to be pronounced by the judge to be incompetent, and his testimony
stricken out and wholly excluded from consideration as though he had been convicted of
a crime rendering him incompetent to testify as a witness; or whether the testimony
remains in the case, to be considered by the jury in connection with the other evidence,
under such prudential instructions as may be given by tHe Court, and subject to the
determination of the Court " above on appeal.
1867, Campbell, J., in Knowles v. People, 15 Mich. 412 : " There has never been any
positive rule of law which excluded evidence from consideration entirely, on account
of the wilful falsehood of a witness as to some portions of his testimony. Such disre-
gard of his oath is enough to justify the belief that the witness is capable of any amount
of falsification, and to make it no more than prudent to regard all that he says with
strong suspicion, and to place no reliance on his mere statements. But when testimony
is once before the jury, the weight and credibility of every portion of it is for them, and
not for the Court to determine."
1 1809, E. V. Teal, 11 Ea,st 309, per L. C. J. gether. But still that would not warrant the
EUenborough ("It may be a good reason for the rejection of the evidence by the judge. ... It
jury, if satisfied that he had sworn falsely on the goes only to the credit of the witness, on which
particular point, to discredit his evidence alto- the jury are to decide ").
1172
§§ 1000-1015]
FALSUS IN UNO.
§ 1011
The correct principle, therefore, can go no farther than to say that the jury
may disregard the testimony, not that they must disregard it ; and this is the
form of the rule as laid down in the great majority ' of jurisdictions.^ The
propriety of giving such an instruction is nevertheless questionable ; for it
merely informs the jury of a truth of character which common experience
has taught all of them long before they became jurymen."
§ 1011. Same : Third Form of Rule : The entire testimony must be rejected,
unless corroborated. This is merely a variant of the first form of rule. It
removes the injunction to treat the entire testimony as worthless, on condi-
tion that there is corroboration of the other portions by circumstances or by
other testimony. This form of the rule is equally unsound and is rarely
advanced.^
1 Only those cases are noted in which there
has been controversy or confusion ; those in
which "may" is the regular and unquestioned
term, used obiter, are not here enumerated ;
where otherwise not specified the orthodox form,
that the jury "may " reject, is approved : Gal. :
1879, People v. Sprague, 63 Cal. 493 (C. C. P.
§ 2061, declares that the witness "is to be dis-
trusted"; McKinstry, J., interprets this that
"the jury may reject the whole," — "that is to
say, must" distrust him "and reject all, un-
less " they believe him corroborated ; and thus
the Code " by requiring a jury to distrust neces-
sarily authorizes them to reject all"; here a,
"may " before " reject all " would reconcile the
statements) ; Estate of Clark, ib. 355, per
Crockett, J. (that the witness " is to be dis-
trusted in others, and not that his whole testi-
mony is to be absolutely rejected "); 1896, People
V. Oldham, 111 id. 648, 44 Pac. 312 (may, not
must ; but here the instruction was absurdly
construed to violate the rule) ; 1901, People v.
Wilder, 134 id. 182, 66 Pan. 228 (may, not
must) ; 111. : 1857, Dean v. Blackwell, 18 111.
337 ; 1873, Pollard v. People, 69 id. 152 ; 1875,
Reynolds v. Greenbaum, 80 id. 416 ; 1881,
Pennsylvania Co. v. Conlan, 101 id. 108 ; 1896,
Taylor v. lelsing, 164 id. 331, 45 N. E. 161
(butdoubtingly stated); Ind.: 1834, M'Glemery
V. Keller, 3 Blackf 488 ; 1859, Terry v. State,
13 Ind. 72 ; Ky. : 1859, Letton v. Young, 2
Mete. 565 ; Me. : 1840, Lewis v. Hodgdon, 17
Me. 273 ; Mass. : 1858, Com. v. Wood, 11 Gray
85, 93 ; 1867, Com. v. Billings, 97 Mass. 406 ;
1903, Root V. Boston El. R. Co., 183 id. 418, 67
N. E. 365 ; Mich. : 1870, Fisher v. People, 20
Mich. 146 ; 1880, O'Rourke v. O'Rourke, 43 id.
58, 61, 4 N. W. 531 ; Mo. : 1867, Paulette v.
Brown, 40 Mo. 57 (interpi'eting State v. Mix,
1851, i5 id. 153, 158, and intervening cases of
State V. Dwire, 25 id. 553 ; State v. Gushing,
29 id. 215); 1895, State v. Duffev, 128 id. 549,
31 S. W. 98 ; Nebr. : 1895, Stoppert v. Nierle,
45 Nebr. 105, 63 N. W. 382; N. Y. : 1864,
Dunn V. People, 29 N. Y. 529 (settling the ef-
fect of the following cases ; 1823, Insurance Co. v.
DeWolf, 2 Cow. 68, 108 ; 1825, People v. Doug-
lass, 4 id. 37 ; 1825, Dunlop v. Patterson, 5
Cow. 23 ; 1829, Forsyth v. Clark, 3 Wend. 643 ;
1836, People v. Davis, 15 id. 607) ; then in Peo-
ple V. Evans, 40 id. 5 (1869), the mandatory
form was prescribed, apparently in ignorance of
Dunn V. People ; the rule of the latter case was
reestablished in the following series ; 1874,
White V. McLean, 57 id. 672 ; 1875, Pease v.
Smith, 61 id. 483. But in 1878, Deering v. Met-
calf, 74 id. 507, the Courtis found saying (appar-
ently without any real appreciation of the
question involved) that when one has sworn
"corruptly false," the jury "ought to disre-
gard " his testimony ; then follow : 1881,
Moett «. People, 85 id. 377 (a charge that "it
is sometimes the duty of the jury to reject the
whole " is approved, as not injurious to a de-
fendantin acriminal case, but Deeringu. Metcalf
was expressly affirmed) ; 1898, People v. Van
Tassel, 156 id. 561, 51 N. E. 274 ("must" re-
ject, is improper) ; N. C. : 1855, State v. Wil-
liams, 2 Jones L. 258 (explaining and practically
oveiTuling State v. Jim, 1828, quoted swpra,
§ 1009); 1869, State v. Brantley, 63 N. C. 518
(the instruction asked for told the jury they were
"authorized to reject," and the judge's substi-
tute that "they could believe a part, all, or
none," was declared better) ; Wis. : 1854,
Mercer v. Wright, 3 Wis. 645, 647; 1869,
Morely v. Dunbar, 24 id. 185, 189 ; 1879, Mack
V. State, 48 id. 271, 286, 4 N. W. 449 ; 1894,
Little V. R. Co., 88 id. 402, 60 N. W. 705 ;
1895, Schmitt v. R. Co., 89 id. 195, 61 N. W.
834.
^ In the following cases the rule was dis-
carded : 1894, Com. v. Clune, 162 Mass. 206,
215, 38 N. E. 435; 1897, State i-. Musgrave, 43
W. Va. 672, 28 S. E. 813 (whole doctrine re-
jected, as involving a charge upon the weight
of evidence ; Brannon, J., diss.).
1 1877, Skipper v. State, 59 Ga. 63, 65 ;
1861, Crabtree v. Hagenbaugh, 25 111. 240 ;
1900, Hill V. Montgomery, 184 id. 220, 56
N. E. 320 ; 1900, Mantonya v. Reilly, ib. 183,
56 N. E. 425. In Troxdale v. State, 9 Humph.
423 (1848), it is uncertain whether the Court is
dealing with this rule. A practically equivalent
form is that the jury may believe, in spite of
the falsity, if the witness is corroborated : 1896,
Duncan v. State, 97 Ga. 180, 25 S. E. 182;
1902, West Chicago S. R. Co. v. Lieserowitz,
197 111. 607, 64 N. E. 718.
1173
§ 1012 TESTIMONIAL IMPEACHMENT. [Chap. XXXIII
§ 1012. Same : Fourth Form of Rule : The entire testimony may be rejected,
unless corroborated. This form is an erroneous variant of the second. The
objection to it is not only that it fetters the jury's action by attaching a con-
dition to their discretion, but that this condition involves logically an impos-
sible and wrong consequence, namely, that if there is such corroboration,
the jury may not reject the testimony but must give it credit :
1877, Henry, J., in Brown v. R. Co., 66 Mo. 588, 599 : " Is the jury not at liberty to
disregard the testimony of one who has committed perjury in their presence, as to some
fact testified to by him, because as to that or some other fact testified to by him he is corro-
borated? . . . That is not the law; the jury may or may not believe him; that is a mat-
ter for their determination, . . . notwithstanding he may have been corroborated as to
that or any other fact to which he testified." ^
The Courts that have employed this form have spoken usually under a mis-
conception of the permissive form {ante, § 1010) ; for they treat " may" as if it
were "must,"' and then argue that it would be unfair to require a rejection in.
spite of corroboration ; in short, they mean to lay down in effect the third rule
above. But whether judged by their intention or by their expressed phras-
ing, they offer a test wholly unsound. Only occasionally is this form of rule
found.^
§ 1013. Same: There must be a Conscious Falsehood. The notion be-
hind the maxim is that, though a person may err in memory or observation
or skiU upon one point and yet be competent upon others, yet a person who
once deliberately mis-states, one who goes contrary to his own knowledge or
belief, is equally likely to do the same thing repeatedly and is not to be reck-
oned with at all. Hence it is essential to the application of the maxim that
there should have been a conscious falsehood :
1743, Bowes, C. B., in Annesley v. Anglesea, 17 How. St. Tr. 1139, 1421: "You will
permit me to observe that there is a great difference between not recollecting circum-
stances, and a witness swearing to those that are false. The not recollecting may consist
with integrity; the swearing to a falsehood never can."
1841, Harrington, J., in Kinney v. Hosea, 3 Harringt. 401 : " But the disbelief of what
any witness has testified to does not necessarily impute to him falsehood and perjury.
This would compel the jury in every case of contradictory testimony to believe that one or
the other witness, or perhaps one set of witnesses or the other, must be wilfully perjured.
1 The following cases al.so reject this fallacy : (where the phrases are used with full under-
1898, Gantling v. State, 40 Fla. 237, 23 So. 857 ; standing) ; Chittenden v. Evans, ib. 254 (where
1903, Sumpter v. State, — id. — , 33 So. the Court merely says that rejection " would
981; 1897, State u. Sexton, 10 S. D. 127, 72 not necessarily follow"); 1870, Martin v. Peo-
N. W. 84, semble. pie, 54 id. 226 ; Huddle v. Martin, ib. 260 ;
' Some of these Courts (e. g. in Illinois) are to 1872, Chicago & A. R. Co. v. Buttolf, 66 id.
be found also, in other rulings, employing the 348 (where rejection is distinctly forbidden) ;
first or the second form above ; there is too little Ind. : 1895, White v. R. Co., 142 Ind. 648, 42
effort at consistency : Ariz. : 1903, Trimble o. N. E. 456 ; 1897. Hank v. State, 148 id. 238,
Terr., —Ariz. — , 71 Pac. 932 ; Ga. : 1857, 46 N. E. 127, 47 N. E. 465 ; Mich. : 1893, Cole.w.
Richardson v. Roberts, 23 Ga. 218 ; Smith v. R. Co., 95 Mich. 77, 80, 54 N. W. 638 ; 1897,
State, ib. 304 (but held to have been improperlv Heddle v. R. Co., 112 id. 647, 70 N. W. 1096,
applied) ; Ivey o. State, ib. 581 ; 1874, Pierce u. semble; Wis. : 1894, AUeu v. Murray, 87 Wis.
State, 53 id. 369 ; III. ; 1864, Meixsiell v. Wil- 41, 51 N. W. 979 ; 1897, Dohmen Co. v. Ins.
hamson, 35 111. 531 ; 1865, Blannhard v. Pratt, Co., 96 id. 38, 71 N. W. 69 (by circumstances
37 id. 246 ; 1867, Howard v. McDonald, 46 id. or by testimony) ; 1900, MUIer v. State, 106 id.
124 ; 1866, Yundt v. Hartrumit, 41 id. 16 156, 81 N. W."l020
1174
'§§ 1000-1015]
FALSUS IN UNO.
§ 1013
Nothing is further from the truth than such a conclusion. A thousand innocent mistakes
are committed in courts of justice, for one intentional and corrupt falsehood; and it
is the commonest duty of a jury to distinguish between conflicting testimony arising
from the mistakes of witnesses."
This requirement is variously phrased by different Courts, and even by the
same Court.^ Occasionally, however, a Court is found declaring, through
carelessness, that proof of a material error (contradiction) or self-contradic-
tion will justify the application of the maxim.^ There is no ground of logic
1 Ala. : 1897, Burton v. State, 115 Ala. 1,
22 So. 585; Ariz: 1898, Sohultz i'. Terr., —
Ariz. — , 52 Pao. 352 (knowingly and inten-
tionally); Arh : 1848, Yoes v. State, 9 Avk. 43
("wilfully and knowingly"); 1900, Bloom v.
State, 68 id. 336, 58 S. "W. 41; Cid.: 1866,
People V. Strong, 30 Cal. 155 ("wilfully");
1879, People v. Sprague, 53 id. 493 (in which
the Code phrase of § 2061, C. C. P., " a witness
false," etc., is said to be properly construed "a
witness wilfully false ") ; Estate of Clark, ib.
355 (same) ; 1886, People i'. Treadwell, 69 id.
226, 238, 10 Pac. 502 ("wilful" not essential) ;
1898, People ». Luchetti, 119 id. 501, 51 Pao.
707 (like People v. Sprague) ; 1899, Peojile v.
Lon Yeck, 123 id. 246, 55 Pac. 984 (like People
II. Treadwell) ; 1903, People v. Dobbins, 138
id. 694, 72 Pan. 339 (an instruction following
C. C. P. § 2061, and omitting the requirement
' of wilfulness, is not improper) ; Colo. : 1876,
Gottlieb y. Hartman, 3 Colo. 53, 60 ("inten-
tionally"); 1896, Last Chance Co. v. Ames, 23
id. 167, 47 Pac. 382 ("wilfully or corruptly");
1898, Ward v. Ward, 25 id. 33, 52 Pao. 1105
("wilful or corrupt"); Ga. : 1857, Ivey v.
State, 23 Ga. 581 (" wilfully and knowingly") ;
1874, Pierce v. State, 53 id. 369 (same) ; 1877,
Skipper v. State, 59 id. 63, 65 ("knowingly
and wilfully ") ; 1902, Holston v. R. Co., 116
id. 656, 43 S. E. 29 (Code, § 5295, applied);
I/l.: 1854, Brennan v. People, 15 111. 517
("wilfully and knowingly ") ; 1861, Crabtree v.
Hagenbaugh, 25 id. 240 ("wilfully"); 1866,
Chittenden v. Evans, 41 id. 253 ("knowingly
or corruptly ") ; 1868, Chicago v. Smith, 48 id.
107 (" wilfully and knowingly"); 1871, Pope v.
Dodson, 58 id. 360, 365 ("wilfully and cor-
ruptly"); U. S. Express Co. v. Hutchins, ib. 45
("intentionally") ; 1873, Pollard v. People, 69
id. 152 ("wilfully and knowingly"); 1881,
Swan V. People, 98 id. 610, 612 ("knowingly
and intentionally ") ; 1899, Overtoom v. R. Co.,
181 id. 323, 64 N. E. 898 ; 1903, Perkins v.
Knisely, — id. — - , 68 N. E. 486 ("wilfully
and knowingly," "knowingly and corruptly or
wilfully," "wilfully and corruptly and inten-
tionally"; the counsel is here rebuked for pro-
pounding a defective instruction, "in view of
the many decisions by this Court "; but it would
seem that these " many decisions" have not yet
made clear precisely what the tenor of the in-
struction should be ; if a quibbling rule like this
is to be enforced, the terms of the quibble
should be tangibly prescribed) ; Ind. : 1854,
Shanks v. Hayes, 6 Ind. 59 (" wilfully and know-
ingly"); Ind. Terr.: 1899, Noyes v. Tootle, 2
1175
Ind. Terr. 144, 48 S. W. 1031 (" intentionally,"
equivalent to " knowingly and wilfully ") ; la. ;
1868, Callauan v. Shaw, 24 la. 447 ("wilfully
and knowingly ") ; 1877, State v. Wells, 46 id.
665 ("knowingly and intentionally"); Kan.:
1871, Hale v. Rawallie, 8 Kan. 136, 142 ("wil-
fully, or some word of kindred meaning "); Md. :
1789, Sanders v. Leigh, 2 H. & McH. 380 (by
the witness him.self or known to him); Mich.:
1899, Wheeler v. Jenison, 120 Mich. 422, 79
N. W. 646 ; Mo. : 1851, State v. Mix, 15 Mo.
153 (" wilfully ") ; 1858, State v. Dalton, 27
Mo. 16 ("wilfully"); 1876, Iron Mountain
Bank v. Murdoek, 62 id. 74 ("knowingly");
1876, State v. Elkins, 63 id. 166 ("intention-
ally "; " designedly and wilfully "); Nebr. : 1884,
Buffalo Co. V. Van Sickle, 16 Nebr. 363, 367,
20 N. W. 261 ("knowingly and wilfully");
1895, Stoppert v. Nierle, 45 id. 105, 113, 63
N. W. 382 (' ' wilfully ") ; 1896, Omaha R. Co.
V. Krayenbuhl, 48 id. 553, 67 N. W. 447
("knowingly and wilfully") ; 1896, McCormick
Co. V. Seeman, 49 id. 312, 68 N. W. 482 (" wil-
fully and intentionally ") ; 1897, Davis v. State,
51 id. 301, 70 N. W. 984 ("wilfully"); 1900,
Denney v. Stout, 59 id. 731, 82 N. W. 18 (" wil-
fully and corruptly ") ; N. M. : 1895, Pacific Gold
Co. V. Skillicorn, 8 N. M. 8, 41 Pac. 533 ("wil-
fully and knowingly ") ; N. Y. : 1875, Pease v.
Smith, 61 N. Y. 484 ("wilfully"); 1878, Deer-
ing ». Metcalf, 74 id. 505 ("intentionally,"
"corruptly"); 1881, Moett v. People, 85 id.
377 ("deliberately," "intentionally"); N. 0. :
1828, State J). Jim, 1 Dev. 510 (" corruptly ") ;
1854, State v. Peace, 1 Jones L. 256 ("wilfully
and corruptly"); N. D. : 1896, McPherrin v.
Jones, 5 K D. 261, 65 N. W. 685 ("wilfully
or knowingly or intentionally"); 1897, State u.
Campbell, 7 id. 58, 72 N. W. 935 ("wilfully or
knowingly"); S. D.: 1900, Hurlburt v. Leper,
12 S. D. 321, 81 N. W. 631 ("wilfully");
1901, Elrod V. Ashton, 14 id. 350, 85 N. W.
599; U. S.: 1822, The Santissima Trinidad, 7
Wheat. 339 ("deliberate") ; 1901, Singer Mfg.
Co. V. Cramer, 48 C. C. A. 588, 109 Fed. 652 ;
Wis. : 1896, Cahn v. Ladd, 94 Wis. 134, 68
N. W. 662 (mere falsity not enough) ; 1902,
Lanphere v. State, 114 id. 193, 89 N. W. 128.
' 1898, Churohwell v. State, 117 Ala. 124,
23 So. 72 (if any witness has been impeached,
his testimony may be disregarded) ; 1870, Martin
0. People, 54 111. 226 ; Huddle v. Martin, ib. 260
("successfuUyimpeached," suflSces) ; 1895, White
V. R. Co., 142 Ind. 648, 42 N. E. 456 (self-con-
tradiction) ; 1854, Powers v. Leach, 26 Vt. 273,
278 (mistake). For a discussion on the related
§ 1013
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIII
or of precedent for such a conclusion ; and it has frequently been repu-
diated when advanced.^
§ 1014. Same: Falsehood must be on a Material Point. It is commonly
said that the falsehood must be upon a material point.^ No doubt the Courts
have here been led away by the inapt analogy of the limitations upon 'the
criminal law of perjury. In the nature of character, a person who would lie
upon a collateral point is perhaps likely to be a more determined liar than
one who dares it only upon a material point; at any rate, there is no less a
call to distrust the former than the latter.^ But Courts have seen fit to ac-
cept this consequence.
§ 1015. Same : Time of the Falsehood. Perhaps it is not logical to say
that only lies told within a specific time shall create this distrust of the wit-
ness' entire testimony ; but the Courts which affect this maxim insist on
fixing some such limitations to the operation of the jury's belief. They
commonly hold that the lie, to have any derogatory operation, may appear
to have been told at any stage of the proceedings, — not necessarily while
on the stand at the present time, but at any former stage of the same
proceedings.^
scholastic quibble whether a witness who has
been "impeached" can be believed, see Smith
V. Stiite, 109 Ga. 479, 35 S. E. S9 (1900); and
compare §§ 2033, 2498, post.
3 1828, R. V. Jackson, 1 Lew. Cr. C. 270,
per Holroyd, J. (self-contradiction) ; 1876, Gul-
liher w. People, 82 111. 146 (contradiction) ;
1896, Movan v. People, 163 id. 372, 45 N. E.
230 (self-contradiction ; the principle being
not clearly laid down, because of the unju-
dicial and impolitic assignment of a dissent-
ing judge to state the opinion of the ruling
majority); 1897, Chicago City R. Go. o. Allen,
169 id. 287, 48 N. E. 414 (mere exaggeration
not sufficient; falsity necessary); 1903, Beedle
V. People, 204 id. 197, 68 N. E.' 434; 1901, Hahn
V. Bettingen, 84 Minn. 512, 88 W. W. 10 (self-
contradiction) ; 1870, Wilkins v. Earle,, 44 N. Y.
182 (contradiction) ; 1875, Place v. Minster, 65
id. 103 (self-contradiction) ; 1878, Deering v.
Metcalf, 74 id. 503 (contradiction); 1849, Miller
V. Siem, 12 Pa. St. 389 (self-contradiction) ;
1896, Sofferstein v. Bertels, 178 id. 401, 35 Atl.
1000 (contradiction); 1847, Jones v. Laney, 2
Tex. 349 (contradiction).
1 1898, People v. Plyler, 121 Cal. 160, 53
Pac. 553 ; 1872, MoLeail v. Clark, 47 Ga. 71
(because "it seems absurd to charge a witness
with wilfully telling falsehoods immaterial to
the issue in hand"); 1874, Fishel «. Ireland, 52
id. 636 ; 1861, Crabtree v. Hagenbaugh, 25 111.
240 ; 1871, U. S. Express Co. v. Hutchins, 58
id. 45 ; 1881, Swan v. People, 98 id. 612 ; 1866,
Campbell v. State, 3 Kan. 488, 496 ; 1871, Hale
V. Rawallie, 8 id. 136, 142 ; 1872, State v. Home,
9 id. 119, 131 ; 1895, State v. Duffy, 128 Mo.
549, 31 S. W. 98 ; 1901, Holdrege u. Watson, —
Nebr. — , 96 N. W. 67 ; 1895, Pacific Gold Co.
V. Skillicorn, 8 N. M. 8, 41 Pac. 533 ; 1854,
State V. Peace, 1 Jones L. 256 ; 1902, First
Nat'l Bank v. Minneapolis & N. E. Co., 11
N. D. 280, 90 N. W. 436 ; 1896, State v. Carter,
15 Wash. 121, 45 Pac. 745 ; 1903, Richardson v.
Babcock, — "Wis. — , 96 N. W. 554.
2 1884, Elliott, C. J., in Seller v. Jenkins,
97 Ind. 436: "A witness who tells a falsehood
concerning a matter incidentally connected with
the subject of the action is as likely to testify
untruly as if the falsehood had directly affected
the issue." For illustrations of this, see the
cross-examinations quoted ante, §§ 1005, 1006.
1 1809, R. V. Teal, 11 East S09 (former
testimony, now confessed to have been per-
jured ; present prosecution being for the con-
spiracy to charge falselv) ; 1825, Dunlop t.
Patterson, 5 Cow. 23 ; 1864, Dunn v. People,
29 N. Y. 529 ; 1828, State v. Jim, 1 Dev. 509
(former trial) ; 1855, State v. Williams, 2 Jones
L. 260 (grand jury) ; State v. Woodly, ib. 259,
279 (committing magistrate). In Lavenburg v.
Harper, 27 Miss. 301 (1854), an instruction
was declared erroneous because it did not con-
fine the jury to the evidence before the Court
as their basis of belief, and because it was under
the circumstances hardly applicable.
The doctrine oi faZsm in uno is to be distin-
guished from the principle, of which our juris-
prudence is at present much enamored, that the
judge may not express an opinion upon the
weight of the testimony ; in stating the maxim
as applicable to a particular witness, this latter
principle is often violated. With this question
of trial procedure we have here nothing to do ;
see an example in Bunce i>. McMahon, 6 Wyo.
24, 42 Pao. 23 (1895).
1176
§ 1017-1046]
BOOK I, PART I, TITLE 11.
§1017
Sub-title II (continued) : TESTIMONIAL IMPEACHMENT.
Topic V: SELF-CONTKADICTION.
CHAPTER XXXIV.
1. General Principle.
§ 1017. Theory of Relevancy.
§ 1018. Same : not admitted as Substantive
Testimony, nor excluded as Hearsay.
§ 1019. _ Principle of Auxiliary Policy ; Rnles
for avoiding Unfair Surprise and Confusion of
Issues.
2. Collateral Matters Excluded.
§1020. Test of CoUateralness.
§ 1021. Two Classes of Facts not Collateral ;
(1) Facts relevant to the Issue.
§ 1022. Same : (2) Facts discrediting the
Witness as to Bias, Corruption, Skill, Knowl-
edge, etc.
§ 1023. Cross-examination to Self-Contradic-
tion, without Extrinsic Testimony.
3. Preliminary Warning Necessary.
§ 1025. Eeason of the Rule.
§ lOiit). History of the Rule.
§ 1027. Objections to the Rule.
§ 1028. State of the Law in Various Juris-
dictions.
§ 1029. Preliminary Question must be Specific
as to Time, Place, and Person.
§ 1030. Testimony of Absent or Deceased
Witnesses ; is the Requirement here also Indis-
pensable ?
Same: (1) Depositions.
Same : (2) Testimony at a Former
§ 1031.
§ 1032.
Trial.
§ 1033
Same: (3) Dying Declarations; (4)
Attesting-Witness, and other Hearsay Wit-
§ 1034. Same : (5) Proposed Testimony ad-
mitted by Stipulation to avoid a Continuance.
§ 1035. Self-Contradiction contained in other
Sworn Testimony ; is the Preliminary Question
here necessary ?
§ 1036. Recall for Putting the Question ;
Showing a Writing to the Witness.
§ 1037. Contradiction admissible, no matter
what the Answer to the Preliminary Question.
§ 1038. Assertion to be Contradicted must be
Independent of the Answer to the Preliminary
Question.
§ 1039. Preliminary Question not necessary
for Expressions of Bias, for a Party's Admissions,
or for an Accused's Confessions ; Impeaching
one's Own Witness.
4.
What amounts to a Self-Contradic-
tion or Inconsistency.
§ 1040. Tenor and Form of the Inconsistent
Statement (Utterances under Oath, Admissions
and Confessions, Joint Writings, Inconsistent
Behavior).
§ 1041. Opinion, as Inconsistent.
§ 1042. Silence, or Negative Statements, as
Inconsistent ; (1) Silence, etc., as constituting
the Impeaching Statement.
§ 1043. Same ; Silence, etc. , as constituting
the Testimony to be Impeached.
5. Explaining away the Inconsistency.
§ 1044. In general.
§ 1045. ■ Putting in the Whole of the Contra-
dictory Statement.
§ 1046. Joining Issue as to the Explanation,
1. General Principle.
§ 1017. Theory of Relevancy. The end aimed at by the present sort of
impeaching evidence is the same as that of the preceding sort, namely, to
show the witness to be in general capable of making errors in his testimony
{ante, § 1000) ; upon perceiving that the witness has made an erroneous state-
ment upon one point, we are ready to infer that he is capable of making an
error upon other points. But the method of showing this is here slightly
different ; for, instead of invoking the assertions of other witnesses to prove
his specific error, we resort simply to the witness' own prior statements, in
which he has given a contrary version. We place his contradictory state-
ments side by side, and, as both cannot be correct, we realize that in at least
1177
§ 1017 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
one of the two he must have spoken erroneously. Thus, we have detected
him in one specific error, from which may be inferred a capacity to make
other errors. Two important features of this method of proof are to be
noticed.
(1) The general end attained is the same indefinite end attained by the
preceding method {ante, § 1000), i. e. some undefined capacity to err ; it may
be a moral disposition to lie, it may be partisan bias, it may be faulty obser-
vation, it may be defective recollection, or any other quality. No specific
defect is indicated ; but each and all are hinted at. It has been often said
that a Prior Self-Contradiction shows " a defect either in the memory or in
the honesty " of the witness :
1852, Shaw, C. J., in Com. v. StarhveatJier, 10 Gush. 60: "It is founded on the obvious
consideration that both accounts cannot be true, and tends to prove a defect of intel-
ligence or memory on the subject testified of, or, what is worse, a want of moral honesty
and regard to truth ; and so, in either case, that the witness is less worthy of belief."
1870, Cole, J., in Knox v. Johnson, 26 Wis. 43 : " This circumstance is well calculated to
throw suspicion on her accuracy and credibility. It shows that her memory is exceedingly
unreliable and treacherous in reference to the times of payment of moneys by her, or that
she does not realize the importance of adhering to actual facts when making statements
under oath." ^
This may be roughly true in the majority of instances; but there is no
such invariable, certain indication ; the scope is much broader and more
intangible. There has also sometimes been an inclination on the part of the
bar to argue as if every Prior Self-Contradiction involved a lie and illustrated
the maxim, Falsus in uno, falsus in omnibus (ante, § 1008) ; but this also is
without foundation ; the discrediting effect of a Prior Self-Contradiction
is independent of whether or not the jury believe it to involve a conscious
lie.2
(2) The process of using a Self-Contradiction to show error is in one respect
weaker, in another respect stronger, than the preceding process of using Con-
tradiction by other witnesses. It is weaker, in that the proof of the specific
error can never be as positive as is possible by the other mode.^ For exam-
ple, if five credible witnesses testify that the assailant had a scar upon his
face, contradicting the first witness, a belief in his present error is more
readily reached than if a single former contradictory statement of his own is
brought forward ; in the latter case we are by no means compelled to believe
that his statement on the stand is erroneous. On the other hand, in the
present mode, the process of discrediting is in its chief aim incomparably
stronger, because it always shows that the witness has made some sort of a
mistake at some time, and thus demonstrates a capacity to make errors. In
other words, both of his statements cannot be correct ; one of the two must
be incorrect ; therefore, he shows a capacity to err. It is the repugnancy of
the two that is fatal :
^ So, too, Best, Evidence, § 478. Fitohhurg R. Co., 137 Mass. 77, quoted post,
« 1872, Craig v. Rohrer, 63 111. 326. § 1109.
' See the opinion of Holmes, J., in Gertz ».
1178
§§ 1017-1046] SELF-CONTRADICTION. § 1018
Ante 1727, Chief Baron Gilbert, Evidence, 147, 150 : " Another thing that derogates from
the credit of a witness is, if upon oath he affirmed directly contrary to what he asserts ;
. . . and this takes from the witness all credibility, inasmuch as contraries cannot be true.
. . . Now that which sets aside his credit and overthrows his testimony is . . . the repug-
nancy of his evidence ; ... if what he says be contradictory, that removes him from all
credit; for things totally opposite cannot receive belief from the attestation of any man."
Thus, the process of discrediting by Prior Self-Con tradiction is on the whole
the more effective. The capacity to err invariably appears, from the very fact
of self-contradiction ; while in the other process it does not appear unless we
believe the opposing witnesses' assertions. Logically, therefore, the present
process is more direct and effective, because self -operative. Practically,
however, it may fall to the same level as the other, if the utterance of the
self-contradiction is denied by the witness and is obliged to be evidenced by
calling other witnesses ; for then it requires (as in the other process) that we
first believe the other witnesses.* Yet, even then, in compensation, it may ac-
quire a double force, for if we believe the other witnesses, the first witness has
twice erred and perhaps twice falsified, — once, in his self-contradiction, and
once again in denying that he uttered it.^
§ 1018. Same : not admitted as Substantive Testimony, nor excluded as
Hearsay, (a) Since, in the words of Chief Baron Gilbert {ante, § 1017), it is
"the repugnancy of his evidence" that discredits him, obviously the Prior
Self-Contradiction is not used assertively ; i. e. we are not asked to believe his
prior statement as testimony, and we do not have to choose between the two
(as we do choose in the case of ordinary Contradictions by other witnesses).
We sirijply set the two against each other, perceive that both cannot be cor-
rect, and immediately conclude that he has erred in one or the other, — but
without determining which one. It is the repugnancy and inconsistency
that demonstrates his error, and not the superior credibility of the prior
statement. Thus, we do not in any sense accept his former statement as
replacing his present one ; the one merely neutralizes the other as a trust-
worthy one. In short, the prior statement is not hearsay, because it is not
used assertively, i. e. not testimonially. The Hearsay B.nle {post, § 1361)
simply forbids the use of extrajudicial utterances as credible testimonial
assertions ; the prior contradiction is not used as a testimonial assertion to be
relied upon. It follows, therefore, that the use of Prior Self-Contradictions to
discredit is not obnoxious to the Hearsay Eule.^
* This becomes important under Mr. J. Coo- particular objection made to it (in the last two
ley's theory of Corroboration (post, § 1126). cases, for example) seems to have rested on a
» This is the chief reason for disputing the feeling that the Hearsay Bule was being in-
policy of the rule in the Queen's Case, about fringed. Mr. Starkie, however, clearly pomted
showing the writing to the witness (post, out the groundlessness of this notion (1824
§1260). Starkie, Evidence, I, 206). To-day it is clearly
^ This was not always understood, and though enough understood that the Hearsay Rule inter-
we find this sort of evidence frequently used in poses no obstacle : 1861, State u. Mulholland
the 1700s (e. g. 1679, Langhom's Trial, 7 How. 16 La. An. 377 ; 1867, State v. Johnson, 12
St. Tr. 461, 462, 467 ; Wakeman's Trial, ib. Minn. 488 ; 1882, Tabor v. Judd, 62 N. H. 292,
653 ; 1699, Spencer Cowper's Trial, 13 id. 1154, semble; and many of the cases cited in the next
1179 ; 1744, Heath's Trial, 18 id. 58, 77 ; 1761, note infra. A good example may be seen in
Wright V. Littler, 3 Burr. 1244, 1255), yet the Robinson v. Blakely, 4 Rich. 589 (1851), of a
VOL. II.— 12 lj^79
§ 1018 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
(b) It follows, conversely, that Prior Self-Contradictions, when admitted,
are not to be treated as assertions having any substantive or independent tes-
timonial value ; they are to be employed merely as involving a repugnancy
or inconsistency ; otherwise they would in truth be obnoxious to the Hear-
say Eule :
1847, Allen, J., in Charlton v. Unis, 4 Gratt. 60: " Such testimony of inconsistent state-
ments is admissible only for the purpose of impeaching the credit of the witness, but can-
not be received as evidence of any fact touching the issue to be tried ; for that would be
to substitute the statements of a witness, generally when not on oath, as evidence between
the parties, for his evidence given under the sanction of an oath upon the trial."
1852, Shaw, C. J., in Gould v. Norfolk Lead Co., 9 Cush. 346 : " It is no evidence
whatever that the facts are as he formerly stated them ; and, though appeals are some-
times made to a jm-y that it is so, it is the province of the Court to inform them that it
is not so."^
§ 1019. Principle of Auxiliary Policy ; Rules for avoiding Unfair Surprise
and Confusion of Issues. Eeasons of Auxiliary Policy apply to limit the
present process of proving error as they do to the preceding one (a7tte,
§ 1002). In addition to the inferior probative value of errors upon distant
and imconnected points, there obtain here, as there, the two strong consid-
erations of Unfair Surprise and Confusion of Issues. The reasons are
phrased by the authorities in almost the same language and are treated as
applying equally to both modes of impeachment :
1849, Woods, J., in Seavy v. Dearborn, 19 N. H. 3.56 : " A question not otherwise mar
terial or proper does not become so by force of any purpose of the examining party to
make use of it to discredit the witness by contradicting his answers to it. The reason
as-signed by writers for these rules are that a contrary course of proceedings would intro-
duce issues in interminable numbers and perplex and harass litigants in questions which
do concern their cause."
statement, Inadmissible when offered merely as 172 id. 432, 52 N. E. 521 ; 1899, Haniman v.
hearsay, becoming admissible when the opponent R. Co., 173 id. 28, 53 N. E. 156 ; Mic/i. . 1878,
had put the declarant on the stand and thus laid Howard o. Patrick, 38 Mich. 795,804; 1883,
him open to contradiction by the utterance be- Brown v. Dean, 52 id. 267, 269, 17 N. W. 837 ;
fore inadmissible. 1887, Catlin i>. R. Co., 66 id. 358, 364, 33
2 Accord: Del. : 1838, Bash v. Purnel, 2 Har- N. W. 515 ; 1892, Tisman v. District, 90 id. 510,
ringt. 448, 457 ; Ga. : 1896, Fieken v. State, 97 613, 51 N. W. 549 ; 1897, Eno v. Allen, 113 id.
Ga. 813, 25 S. E. 925 ; 1898, Brush E. L. & P. 399, 71 N. W. 842 ; Minn. : 1867, State v.
Co. V. Wells, 103 id. 512, 30 S. E. 533 ; HI. : .Johnson, 12 Minn. 488 ; Mo. : 1877, Peck i».
1,884, Moore v. People, 108 111. 487 ; 1889, Ritchey, 66 Mo. 119 ; 1879, States. Kilgore, 70
Ritter v. People, 130 id. 255, 260, 22 N. E. 605 id. 558, semble ; 1880, State o. Hughes, 71 id.
(former testimony at the coroner's inquest) ; 635 ; 1896, State v. Baker, 136 id. 74, 37
1892, Purdy v. People, 140 id. 46, 52, 29 N. E. S. W. 810 ; Nebr. . 1899, Zimmerman v. Bank,
700 (same) ; Ind. : 1S81, Davis v. Hardy, 76 59 Nebr. 23, 80 N. W. 54 ; X. V. : 1871,
Ind. 280 ; 1888, Conway v. State, 118 id. 482, Sloan ■„. R. Co., 45 N. Y. 127 ; N. D. : 1903,
488, 21 N. E. 285 ; Ky. : 1898, Jones v. Com., Balding v. Andrews, — N. D. — , 96 N. W.
— Kv. — , 46 S. W. 217 ; 1900, Nussbaum 305 ; Oh..- 1829, Hand v. Elvira, 1 Gilp. 60;
V. R. Co., —id. — , 57 S. W. 249; 1902, 1884, Kent v. State, 42 Oh. St. 433; Pa.:
MuUins V. Com., — id. — , 67 S. W. 824 ; 1895, Dampmau v. R. Co., 166 Pa. 520, 31 Atl.
1902, Ashcraft v. Com., — id. — , 68 S. W. 244 ; Tex. : 1894, Armstrong v. State, 33 Tex.
847 ; La. : 1897, State v. Reed, 49 La. An. 704, Cr. 417, 421, 26 S. W. 829 ; 1897, Texas & P.
21 So. 732 ; Me.: 1872, State v. Reed, 60 Me. R. Co. v. Johnson, 90 Tex. 304, 38 S. W. 520 ;
553 ; Md. : 1807, DeSobry v. DeLaistre, 2 H. & Vt. : 1874, Law t». Fairfield, 46 Vt. 431 ; Wis. :
J. 220 ; 1876, Mason v. Poulson, 43 Md. 161, 1879, Warder v. Fisher, 48 Wis. 344, 4 N. W.
176 ; Mass.: 1852, Com. v. Starkweather, 10 470 ; 1889, Reddles v. R. Co., 74 id. 251, 42
Cush. 60 ; 1890, Fmncis v. Rosa, 151 Mass. N. W. 251, 76 id. 232, 45 N. W. 308.
636, 24 N. E. 1024 ; 1899, Mannmg v. Carberry,
1180
§§ 1017-1046] SELF-CONTRADICTIOJSr. § 1019
1884, Elliott, C. J., in Seller v. Jenkins, 97 Ind. 436 : " The Courts do not put the rule
(that a witness cannot be impeached upon collateral matters) on the ground that the
nearer the false statement is to the main issue, the stronger is its effect upon the testi-
mony of the -witness. It is put upon an entirely different ground. By one Court it is
put upon the ground that the time of the Court is too limited to permit collateral inqui-
ries. An older and a stronger reason is . . . that such a practice would confuse the Jury
by an interminable multiplication of issues."
But these two considerations do not bear upon the present sort of evidence
in precisely the same way as upon the preceding sort.
(a) Take, first, Confusion of Issues. The force of this objection is clear.
But what remedy or limitation does it suggest ? We cannot here say, as we
could in dealing with Contradictions by outside testimony {ante, § 1002),
that only such evidence shall be admitted as would have been otherwise
admissible in any case; for no Prior Self -Contradictions would otherwise
have been admissible. In the process of contradicting by extrinsic testi-
mony, it was easy to draw the line by admitting only such testimony as
would otherwise have been admissible, and thus the objection of Confusion
of Issues was entirely obviated. In the present case, no such line is dictated
by the logic of the situation. As a matter of history, however, Courts have
always drawn the same line for both classes of evidence. Some line had to
be drawn, and it was simpler to draw the same line for both. Its definition,
and the application of it, are examined {-post, §§ 1020-1023).
(&) Next, the consideration of Surprise. It was seen, in dealing with Con-
tradiction by extrinsic testimony {ante, § 1002), to expect the witness or
his party to be prepared to refute alleged errors of his ceases to be unfair
when the subject of the error is concerned with the matter in litigation or
the qualifications of the witness ; for upon such subjects they ought in any
case to have come prepared. Thus the line is naturally drawn between Con-
tradictions by other witnesses upon such subjects and Contradictions upon
collateral subjects. But in the present class of evidence — Self-Contradic-
tions — it is of no value to draw such a line. It is just as difficult to come
prepared upon alleged Self-Contradictions dealing with the subject of litiga-
tion as upon other Self-Contradictions. For example, if after a witness has
left the stand, the opponent offers (by a false witness) to prove that he
formerly declared the assailant to be a tall man, whereas now he testifies that
he was a short man, it is obviously impossible for any one but a prophet to
have foreknown that the alleged self-contradiction would deal with this sub-
ject. By hypothesis, the witness has never made such an assertion and can
so testify ; but how can he have known until now what it is that he is to dis-
prove ? The fact that the matter is relevant to the case, could not have warned
him of the precise topic, time, and place of the fabricated remark. Thus,
the line of distinction which naturally suggested itself to prevent surprise in
the case of Contradiction by extrinsic testimony has no bearing in prevent-
ing surprise in the case of Prior Self-Contradictions. Another method of
obviating surprise must be sought. It is this, as followed by nearly every
1181
§ 1019 TESTIMONIAL IMPi:ACHMENT. [Chap. XXXIV
Court to-day : The witness must be asked in advance — i. e. on cross-exam-
ination and before any other testimony to the Prior Self-Contradiction is
offered — whether he made the contradictory statement which it is desired
to prove. 'In this way he receives ample warning, and, if the alleged contra-
diction is a mere fabrication of the impeaching party, the other has ample
time to prepare to disprove it, or to explain it away if it was made. Thus, the
method of obviating the objection of Surprise is, not to draw a line between
collateral and other matters, but to require that express warning be given to
the opposing witness before any attempt is made to prove the alleged Self-
Contradiction. This rule is later examined (post, §§ 1025-1038).
Surveying, then, the scope of these two objections. Confusion of Issues and
Surprise, as applied to Contradictions by extrinsic testimony (ante, § 1000)
and to Self-Con tradictions (the present subject), it is seen that the objections
themselves are of the same nature in both classes ; that the rules naturally
resorted to for obviating the objections are not necessarily the same ; that
for the former class of evidence a single rule suflfices to obviate both objections
— the rule excluding Contradictions on Collateral Matters (ante, § 1002) ; but
that for the present class two rules are required, one excluding Self-Contra-
dictions on Collateral Matters (thus obviating the objection of Confusion of
Issues), the other requiring a Preliminary Warning (thus obviating the ob-
jection of Surprise). These two main rules may now be taken up in order.
2. Collateral Matters Excluded.
§ 1020. Test of CoUateralness. It has just been noticed that the test of
collateralness is in fact, though not in logical necessity, the same for this
class of evidence as for the preceding one, i. e. Contradiction by extrinsic
testimony (ante, § 1003). Here, as there, most Courts content themselves
with invoking the term " collateral " as the test. Others employ the terms
" material " or " relevant " as indicating the matters that may be the subject
of a Prior Self-Contradiction. The difficulty with all these terms is that
without farther definition they are too indefinite to be useful. When we
seek to learn what " collateral " means, we are obliged either to define fur-
ther — in which case it is a mere epithet, not a legal test — , or to illustrate
by specific instances — in which case we are left to the idiosyncrasies of in-
dividual opinion. The only test in vogue that has the qualities of a true
test — definiteness, concretness, and ease of application — is that laid down
in Attorney-General v. Hitchcock : Could the fact, as to which the prior self-
contradiction is predicated, have been shown in evidence for any purpose inde-
pendently of the self-contradiction ?
1847, Attorney-General v. Hitchcock, 1 Exch. 99 ; Pollock, C. B. : "My view has always
been that the test whether the matter is collateral or not is this : If the answer of a wit-
ness is a matter which you would be allowed on your part to prove in evidence, if it have
such a connection -with the issue that you would be allowed to give it in evidence, then it
is a matter on which you may contradict him. ... I think the expression ' as to any mat-
ters connected with the subject of inquiry ' is far too vague and loose to be the founda-
1182
§§ 1017-1046] SELF-CONTRADICTION. § 1020
tion of any judicial decision. And I may say I am not all prepared to adopt the proposi-
tion in those general terms, that a witness may be contradicted as to anything he denies
having said, provided it be in any way connected with the subject before the jury. It must
be connected with the issue as a matter capable of being distinctly given in evidence, or it
must be so far connected with it as to be a matter which, if answered in a particular way,
would contradict a part of the witness' testimony ; and if it is neither the one nor the
other of these, it is collateral to, though in some sense it may be considered as connected
with, the subject of the inquiry. A distinction should be observed between those matters
which may be given in evidence by way of contradiction as directly affecting the story of
the witness touching the issue before the jury, and those matters which affect the mo-
tives, temper, and character of the witness, not with respect to his credit, but with refer-
ence to his feelings towards one party or the other. It is certainly allowable to ask a
witness in what manner he stands affected toward the opposite party in the cause, and
whether he does not stand in such a relation to that person as is likely to affect him and
prevent him from having an unprejudiced state of mind, and whether he has not used
expressions importing that he would be revenged on some one or that he would give such
evidence as might dispose of the cause in one way or the other. If he denies that, you
may give evidence as to what he said, — not with the view of having a direct effect on the
issue, but to show what is the state of mind of that witness in order that the jury may
exercise their opinion as to how far he is to be believed. But those cases, where you may
show the condition of a witness or his connection with either of the parties, are not to be
confounded with other cases where it is proposed to contradict a witness on some matter
unconnected with the question at issue " ; Alderson, B. : " The question is this. Can you
ask a witness as to what he is supposed to have said on a previous occasion ? You may
ask him as to any fact material to the issue, and if he denies it you may prove that fact,
as you are at liberty to prove any fact material to the issue. . . . The witness may also
be asked as to his state of equal mind or impartiality between the two contending parties,
— questions which would have a tendency to show that the whole of his statement is to
be taken with a qualification, and that such a statement ought really to be laid out of the
case for want of impartiality; [and these answers may be contradicted]. . . . Such, again,
is the case of an offer of a bribe by a witness to another person, or the offer of a bribe ac-
cepted by a witness from another person ; the circumstance of a witness having offered
or accepted a bribe shows that he is not equal and impartial. . . . But with these excep-
tions I am not aware that you can with propriety permit a witness to be examined first
and contradicted afterwards on a point which is merely and purely collateral."
This rule of Attorney-General v. Hitchcock is expressly accepted in only
a few of the United States.^ Moreover, the rule is often misunderstood.
Courts are found phrasing the test of admissibility in this way: " Would the
cross-examining party be entitled to prove it as a part of his case, tending to
establish his plea ? ",^ or " Whether the question, the answer to which is
proposed to be contradicted, would be admissible if proposed by the party
calling him ? " ^ These are accurate enough as far as they go ; but they omit
to provide for an important class of matter clearly admissible, namely, facts
relating to the bias, corruption, or other specific deficiencies of the witness.
It is not merely matters which are a " part of the case " that may be the sub-
ject of a self-contradiction, but any matter which would have 1/een otherwise
admissible in evidence. The simple test is (in the language of Chief Baron
1 See the cases cited post, § 1021. 3 1559^ Combs v. Winchester, 39 N. H. 16 ;
^ 1870, Hildebum v. Curran, 65 Pa. 63 ; said here to be " substantially the rule " of
1896, Williams v. State, 73 Miss. 820, 19 So. Attorney-General v. Hitchcock.
826.
1183
1020
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
Pollock) whether it concerns " a matter which you would be allowed on your
part to prove in evidence " independently of the self-contradiction, — i. e. if
the witness had said nothing on the subject. It may be added that there
sometimes is found an erroneous notion (precisely similar to that described
already as obtaining sometimes for Contradiction by extrinsic testimony) that
nothing said on the direct examination can be collateral and therefore a Self-
Oontradiction of anything said on the direct examination is admissible.* The
history of this misunderstanding, and the reason why it is erroneous, have
already been explained {ante, § 1007). The error has been frequently repu-
diated by other Courts.^
§ 1021. T-wo Classes of Facts not Collateral ; (1) Facts relevant to the Issue.
In applying the foregoing test, it is obvious that there are two classes of facts
of which evidence would have been admissible independently of the self-
contradiction : (1) facts relevant to some issue in the case under the plead-
ings ; (2) facts admissible to discredit the witness as to bias, corruption, or
the like.
(1) Facts relevant to some issue in the case. Here the circumstances of each
separate case determine the admissibility ; and no general principle can be
laid down. Most rulings are useless as precedents.^
* 1864, Forde's Case, 16 Gratt. 557, semble
("it does not fall within the reason assigned,
that the answer of a witness to collateral matter
cannot be contradicted by the party asking it
because it would be unjust to expect the wit-
ness to come prepared to prove the truth of every
collateral statement ; as he has embodied it
himself in his own narrative of tlie transactions,
he must be prepared to sustain it ") ; 1850, State
I'. Sargent, 32 Me. 429 ; 1864, Forde's Case, 16
Gratt. 556, semble; 1878, Furst v. R. Co., 72
N. Y. 544, semble.
1857, Dillon v. Bell, 9 Ind. 320 ; 1884,
Seller v. Jenkins, 97 id. 437 ; 1896, Williams v.
State, 73 Miss. 820, 19 So. 826.
^ The following list does not include all the
rulings in which the doctrine of " collateralness "
has been incidentally sanctioned ; it is every-
where conceded to be the law ; compare also the
cases and statutes cited ante, § 1004 : Eng. : 1827,
Meagoe w. Simmons, 3 0. & P. 75 (usury ; the
consideration for a former bill discounted between
the same parties at the same timi!) ; 1829, R. v.
Phillips, 1 Lew. Or. C. 105 (in using former utter-
ings of forged notes to show guilty knowledge,
the defendant's statements at the time of former
uttering could not be contradicted by his state-
ments " at a time collateral to a former uttering,"
" because the prisoner could not be prepared to
answer or explain evidence of that description " ) ;
1847, R. V. White, 2 Cox Cr. 192 ; 1853, R. v.
Rorke, 6 Cox Cr. 196 (former testimony on a
purely collateral point, admitted : Lefroy,' C. J. :
" No matter whether the question is relevant or
irrelevant to the present issue, it goes to the
inconsistency of her evidence on the two trials " ;
but refusing to make the ruling a precedent) ;
1862, Fowkes v. Ins. Co., 3 F. & F. 443 (denial
by a medical examiner that he had before de-
1184
clared the life bad which he now testified he had
accepted ; allowed) ; Can. : 1874, Hamilton v.
Holder, 15 N. Br. 223 ; 1874, McCulloeh v. Ins.
Co., 34 U. C. Q. B. 383, 387, and 32 id. 614
(action on a fire policy ; the plaintiff on cross-
examination denied that he had told the defend-
ant's agent that he had not been burned out
before ; contradiction excluded) ; Ala. : 1848,
Moore V. Jone.s, 13 Ala. 303 ; 1853, Ortez c.
Jewett, 23 id. 663 ; 1859, Blakey's Heirs v.
Blakey's Ex'x, 33 id. 618 ; 1879, Washington
«. State, 63 id. 192 ; 1895, Orr v. State, 107 id.
35, 18 So. 142 ; Ark. : 1855, Atkins ». State, 16
Ark. 587 ; Oal. : 1852, McDaniel v. Baca, 2 Cal.
338 ; 1872, Peoples. Devine, 44 id. 458 (j.lace of
a homicide ; admitted) ; 1898, Trabing v. N. & I.
Co., 121 id. 137, 53 Pac. 644; Colo. : 1897, Askew
V. People, 23 Colo. 446, 48 Pac. 524; Fla. :
1901, Myers v. State, 43 Fla. 200, 31 Sn. 275;
Ga. : Code 1895, § 5292, Cr. C. § 1026 (allow-
able "as to matters relevant to his testimony
and to the case"); 1899, Hudgins v. Blood-
worth, 109 Ga. 197, 34 S. E. 364; HI. : 1884,
Moore v. People, 108 III. 486 ; Ind. : 1820,
Shields v. Cunningham, 1 Blackf. 87 ("irrele-
vant and immaterial "); 1843, Mclntire d. Young,
6 id. 497 (slander ; that the witness proving the
utterance did nob know the plaintiff at the time,
and held the same views as those uttered by
defendant ; excluded) ; 1853, Lawrence v. Lan-
ning, 4 Ind. 194 ; 1869, Foglemari v. State, 32
id. 145; 1873, Burdick v. Hunt, 43 i<l. 388;
1883, Brown v. Owen, 94 id. 36 ; 1884, Seller v.
Jenkins, 97 id. 434 ; 1885, Welch v. State, 104
id. 351 ; 3 N. E. 850 ; 1889, Staser v. Hogan,
120 id. 220, 21 N. E. 911, 22 N. E. 990 (in
these two cases the misunderstood test is used :
"Would the cross-examining party be entitled
to prove it as a part of his case tending to estab-
§§ 1017-1046]
SELF-CONTEADICTION,
§ 1022
§ 1022. Same : (2) Facts discrediting the Witness as to Bias, Corruption,
Skill, Knowledge, etc. A second class of matters which, by the rule in
lish his plea?") ; 1895, Blough v. Parry, 144
id. 463, 40 N. E. 70 ; la. : 1844, Wau-koii-
cliaw-neek-kaw v. U. S., 1 Morris 337 ; 1857,
Cokely V. State, 4 la. 480 ; 1869, State v.
Ruhl, 8 id. 451 ; Ky. : 1859, Champ v. Com., 2
Mete. 23 ; 1878, Kennedy i-. Com., 14 Bush
357 ; 1882, Loving v. Com., 80 Ky. 511 ; 1884,
Crittenden w. Com., 82 id. 167 ; 1889, Com. v.
Hourigaii, 89 id. 311, 12 S. W. 550; 1896,
Louisville & N. R. Co. v. Webb, 99 id. 332,
35 S. W. 1117, 1121 ; La. . 1896, State v. Scott,
48 La. An. 1418, 20 So. 909 ; 1896, State v.
Conerly, 48 id. 1561, 21 So. 192 ; Me. : 1831,
Ware v. Ware, 8 Greenl. 53 ("the true line of
distinction is that which has been established
between those questions which are merely' col-
lateral and have no immediate connection with
the cause and those which intimately relate to
the subject of the inquiry ") ; 1857, Brackett v.
Weeks, 43 Me. 291; 1870, State v. King,sbury, 58
id. 243 ; 1872, Bell v. Woodman, 60 id. 466, 468 ;
1874, State v. Benner, 64 id. 287 ; Davis v. Koby,
ib. 429 ; Mass. : two points are here to be noted :
(1) The doctrine of the modern rulings is that
the trial Judge has discretion to determine
whether matter is collateral and even to allow a
cross-examination upon matters concededly col-
lateral ; hence, most of such rulings simply decide
that the discretion below was not improperly exer-
cised in admitting or excluding ; (2) Self-con-
tradictions of one's own witness {ante, § 905)
are admitted by virtue of a statute, P. S. c. 169,
§ 22, R. L. 1902, c. 75, § 24; how far the discre-
tion-doctrine affects this statutory evidence does
not appear: 1843, Broekett v. Bartholomew, 6
Mete. 396 ; 1843, Hathaway v. Crocker, 7 id. 264;
1857, Benjaniin v. Wheeler, 8 Gray 413 ; 1857,
Lane v. Bryant, 9 id. 247 (a statement as to the
witness' former hearsay and inadmissible re-
marks, excluded) ; 1861, Fletcher v. R. Co., 1
All. 13 (same) ; 1863, Couillard v. Duncan, 6 id.
440 (fraudulent transfer ; creditor's inconsistent
statement of the amount of the debt ; admitted) ;
1865, Prescott v. Ward, 10 id. 205, 208 (discre-
tion rule); 1866, Marsh v. Hammond, 11 id.
486 (statements by an insolvent debtor, a fraud-
ulent transfer being involved ; admitted) ; 1867,
Carruth o. Bayley, 14 id. 532 (statements by a
transferee and by another creditor, as to former's
knowledge of insolvency, and as to the exist-
ence of a claim corroborating the other testi-
mony; admitted); 1868, Foot v. Hunkins, 98
.„Mass. 524 (issue as to C.'s ownership, G. deny-
ing it; C.'s lack of money and failure having
been testified to by him, former statements by
him that he had means were received) ; 1869,
Ryerson v. Abington, 102 id. 530 (an inadmissible
opinion ; excluded) ; 1873, Com.r. McBean, 111
id. 438 (indecent assault while on a drive ; a
statement on another occasion that the prosecu-
trix would kiss the defendant if he took her to
drive ; admitted) ; 1873, Davis v. Keyes, 112 id.
436 (contract on a warranty of a horse's age ;
defendant's testimony that he did not know the
horse's age, and had never warranted a horse,
excluded) ; 1875, Woodard v. Eastman, 118 id.
403 ; 1876, Kalerv. Ins. Co., 120 id. 334 ; 1877,
Eames v. Whittaker, 123 id. 342, 344 ; 1885,
Batchelder v. Batchelder, 139 id. 1, 29 N. E.
61 (under statute ; that the witness had not had
a conversation with the testator's wife regarding
a will prior to the one in issue ; excluded) ;
1889, Phillips c. Marblehead, 148 id. 328, 19
N. E. 547 (cross-examination on collateral mat-
ters, discretionary) ; 1889, Alexander v. Kaiser,
149 id. 321, 21 N. E. 376 ; 1889, Roberts v.
Boston, ib. 346, 352, 21 N. E. 668 (discretion
doctrine) ; 1895, Pierce v. Boston, 164 id. 92,
41 N. E. 229 (discretion doctrine) ; 1896,
Howes V. Colbum, 165 id. 385, 43 N, E. 125
(discretion-doctrine ; testimony of prior contra-
dictions oftered against a witness called in re-
buttal) ; Mich. : 1866, Fisher v. Hood, 14 Mich.
189 ; 1869, Patten v. People, 18 id. 329; 1878,
Hitchcock V. Bui'gett, 38 id. 501, 505 ; 1881,
Hamilton v. People, 46 id. 186, 188, 9 N. W.
247 ; 1882, Driscoll«. People, 47 id. 413, 417, 11
N. W. 221 ; 1882, People v. Broughton, 49 id.
339, 13 N. W. 621 ; 1886, Butte'rfield v. Gil-
christ, 63 id. 161, 29 N. W. 682 ; 1887, McDon-
alds. McDonald, 67 id. 122, 34 N. W. 276 ; 1890,
People V. Hillhouse, 80 id. 585, 45 N. W. 484 ;
1892, Electric Light Co. o. Grant, 90 id. 475,
51 N. W. 539 ; 1895, People v. De France, 104
id. 563, 62 N. W. 709; 1895, McClellan v. R.
Co., 105 id. 101, 62 N. W. 1026 (a former ex-
pression of opinion, by one now testifying to a
motorraan's care, that the latter was to blame, ad-
mitted) ; Minn. : 1868, Hicks v. Stone, 13 Minn.
439 ; 1869, State «. Staley, 14 id. 115 ; 1897,
Murphy v. Backer, 67 id. 510, 70 N. W. 799 ;
Miss.: 1885, Jamison b. R. Co., 63 Miss. 33,
37 ; 1889, Jones v. State, 67 id. Ill, 115, 7 So.
220 ; 1896, Williams v. State, 73 id. 820, 19
So. 826 (test, whether the matter would be
admissible as part of the case) ; 1899, Garner v.
State, 76 id. 515, 25 So. 363 ; Mo. : 1871,
Harper v. E. Co., 47 Mo. 681 ; 1875, McKern v.
Calvert, 59 id. 243 ; 1880, State v. Hughes, 71
id. 636 ; 1901, Hamburger v. Rinkel, 164 id.
398, 64 S. W. 104 (the facts must be such as
are "pertinent to the issue and could have been
shown in evidence as facts independently of the
inconsistency ") ; Nebr. .- 1884, George v. State,
16 Nebr. 321, 20 N". W. 311 (test, whether the
same matter could be used affirmatively) ; 1897,
Johnston v. Spencer, 51 id. 198, 70 N. W. 982
(provable if " a part of his case, tending to estab-
lish his plea") ; 1899, Zimmermann v. Kear-
ney Co. Bank, 57 id. 800, 78 N. W. 366, semble
(test of Attorney-General v, Hitchcock adopted) ;
N. H. : 1859, Combs v. Winchester, 39 N. H.
16 (Bell, J.: "It may always, we think, be
determined whether evidence in contradiction of
a witness is admissible by considering whether
the question, the answer to which is proposed to
be contradicted would be admissible if proposed
by the party calling him. . . . But if the ques-
tion is admissible only on cross-examination, it
is merely collateral and cannot be Contradicted ") ;
1185
§ 1022
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
Attorney-General v. Hitchcock, may be the subject of a self-contradiction,
because they concern facts which could have been introduced in evidence
independently of the self-contradiction, includes all those which evidence
specific discrediting qualities in the witness, — in particular, Bias, Interest,
and Corruption, and occasionally also, lack of Skill, Knowledge, and the Kke.
In this class, on the other hand, are not included facts of misconduct im-
peaching Moral Character. The admissibility of, the self-contradiction thus
depends indirectly on the scope of the rules governing the above kinds of
facts (ante, §§ 948-996). The general principle is to-day almost everywhere
conceded, but it is in matters of bias, interest, and corruption that it receives
most frequent mention :
1867, Wells, J., in Day v. Stickney, 14 All. 258 : " The credit of a witness, upon whose
testimony in part the issue is to be determined, is not merely collateral, and cannot be
immaterial. The weight of his testimony with the jury may depend entirely upon their
supposition that he is under no influence to prevaricate. If he is prejudiced for or
against one of the parties to the suit, or has a strong purpose or feeling of interest in
relation to the matter in controversy, it is a circumstance which may materially affect his
testimony. . . . Under the English rule requiring that the witness should himself be
interrogated as to his interest, bias, or hostile feeling, before other witnesses could be
1861, Dewey v. Williams, 43 id. 385, 386 ; 1864,
Sumner v. Crawford, 45 id. 417 ; N. J. : 1830,
Fries v. Brugler, 12 N. J. L. 80 ; N. Y. : 1830,
Lawrence v. Barker, 5 Wend. 305 ; 1831, Jack-
son V. Warford, 7 id. 61 ; 1847, Howard v. Ins.
Co., 4 Den. 504, 506 (a plea of fraudulent over-
valuation to an action on a fire-policy ; the wit-
ness, plaintiffs brother and business-manager,
was asked whether he had, in originally mak-
ing purchases, represented the plaintiff's capital
(really $400) as $10,000 ; it was said obiter that
the answer could not be contradicted) ; 1863,
Plato V. Reynolds, 27 N. Y. 587 ; 1871, Sloan
V. R. Co., 45 id. 126 (negligence in not keeping
the track in repair ; prior inconsistent state-
ments admitted of a witness to the condition of
the track) ; N. C. : 1836, Radford o. Rice, 2
Dev. & B. 42 (the matter must be ' ' relevant to
the issue," " the fact in issue or its attendant
circumstances or any facts immediately con-
nected with the subject of inquiry ") ; 1869,
State V. Kirkman, 63 N. C. 246 (allowed) ; 1871,
Clark V. Clark, 65 id. 660 (details affecting
bias; excluded) ; 1873, Kerrans ti. Brown, 68 id.
43 (capacity of testator, his sanity being dis-
puted ; admitted) ; 1873, State v. Elliott, ib.
125 (circumstances of a killing ; excluded) ;
1876, State v. Patterson, 74 id. 157 (filiation
proceedings ; whether prosecutrix had four years
before had intercourse with a third person ; ex-
cluded) ; 1879, State v. Scott, 81 id. 606 ( " rather
than be outdone by a negro, he would swear any
amount of lies " ; excluded) ; 1880, State v.
Parish, 83 id. 613 (similar to Patterson's Case,
supra, but involving a peculiar doctrine of this
State) •, 1882, State v. Crouse, 86 id. 621 (like
Patterson's Case) ; 1882, State v. Davis, 87 id.
524 (a fact indicating the witness to be an
accessory after the fact and thus affecting his
motive to testify falsely ; admitted) ; 1897, Bur-
nett V. R. Co., 120 id. 517, 26 S. E. 819 ; Oh. :
1884, Kent v. State, 42 Oh. 434 (rule of Attor-
ney-General V. Hitchcock said to be ordinarily
the test ; whether universally, is doubted) ; Pa. :
1870, Hildeburn v. Curran, 65 Pa. 63 (test,
"Would the cross-examining party be entitled
to prove it as a part of his case, tending to
establish his plea?"); 1874, Schlater v. Win-
penny, 75 id. 325; 1888, Zebley v. Store.v, 117
id. 480, 489, 12 Atl. 669 ; S. 0. : 1831, Smith
V. Henry, 2 Bail. 118, 127; 1890, State v.
Bodie, 33 S. C. 129, 11 S. E. 624 ; S. D. : 1897,
State V. Davidson, 9 S. D. 664, 70 ST. W. 879
(provable if " a part of his case, tending to
establish his plea"); Tenn. : 1890, Franklin u.
Franklin, 90 Tenn. 48, 16 S. W. 557 ; 1897,
Saunders v. R. Co., 99 id. 130, 41 S. W. 1031
("as a part of and as tending to establish his
case ") ; U. S. : 1806, Lamalere v. Gaze, 1 Wash.
C. C. 413 ("pertinent to the cause " ; "relative
to the cause"); 1840, U. S. v. Dickinson, 2
McLean 330; Utah: 1895, Fenstermaker v.
Tribune Pub. Co., 12 Utah 439, 43 Pac. Il7;
n. : 1858, Holbrook v. Holbrook, 30 Vt. 434 ;
1883, Lewis v. Barker, 55 id. 21 ; 1888, Alger v.
Castle, 61 id. 57, 17 Atl. 727 ; 1901, Lvnds v.
Plymouth, 73 id. 216, 50 Atl. 1083 ; Fa.': 1833,
Daniels v. Conrad, 4 Leigh 402, 404, 405 ; 1882,
Langhorne v. Com., 76 Va. 1019 (semble, the
test of Attorney-General v. Hitchcock) ; 1895,
Robertson v. Com., — id. — , 22 S. E. 369 ;
Wash. ; 1900, State v. Coates, 22 Wash. 601,
61 Pac. 726 (confession of prior burglaries, ad-
mitted) ; Wis. : 1903, Barton v. Bruley, —
Wis. — , 96 N. W. 815 (here erroneously ex-
cluded, for the fact of bias was involved) ; Wyo. .-
1903, Horn v. State, — Wyo. — , 73 Pac.
705 (prior statements showing motive, held not
collateral).
1186
§§ 1017-1046]
SELF-CONTEADICTION.
1022
called to prove it by his declarations, such proof always involved a question of [self-]
contradiction, and was generally treated in this secondary aspect alone. But the whole
investigation relating thereto was regarded as belonging to the province of impeach-
ment. Its character is the same although the contradiction be omitted."
1881, Elliott, J., in Johnson v. Wiley, 74 Ind. 239 : " It can make no difference whether
the motives arise from hatred, interest, or affection ; the principle is the same. If it be
proper to contradict a witness by proving that statements have been made indicating
hostility and enmity, it surely must be competent to prove statements showing that the
impartiality of the witness is affected by motives arising from friendship, affection, fear,
or interest." ^
^ The rulings in the different jurisdictions
are given below. The list given in the preceding
note should also he consulted, as a strict line of
division is sometimes difficult to draw. Com-
pare also the cases cited ante, §§ 948-969, and
§§ 990-996, which sometimes also throw light
oil the present rule. England: Some early
rulings were incliued to treat all such matters as
material : 1811, Yewin's Case, 2 Camp. 638, n.
(whether a witness for prosecution had not .said
he would be revenged on defendant ; allowed to
be shown, "as the words were material to the
guilt or innocence of the prisoner ") ; 1829, R.
V. Earlier, 3 C. & P. 590 (contradiction as to
the loose conduct of the prosecutrix in a rape
case ; adtnitted) ; 1843, K. v. Robins, 2 M. &
Rob. 512 (coutradicting the pi-osecutrix in a
rape case as to previous connection with other
men ; admitted) ; but other rulings were in-
clined to treat them as collateral, even where
bias was distinctly involved : 1838, Harrison v.
Gordon, 2 Lew. Gr. C. 156, Alderson, B. (ex-
cluding an apparent denial of circumstances in-
dicating a hostile spirit); 1838, Lee's Case, 2 id.
154, Coleridge, J. (that the witness had said
that the prisoner should be acquitted if it cost
him £20 ; that he had tried to persuade witnesses
for the prosecution not to testify ; excluded).
But this unsettled condition of the law was
brought to an end in 1847 by Attorney-Gen-
eral V. Hitchcock (admitting all matters involv-
ing bias or corruption ; in this particular case
the evidence was excluded as not really of that
sort; the information was for makinf^ malt in an
unregistered cistern ; a witness tustifying for the
prosecution to the making was asked on cro^s-
examination if he had not said that the Crown
offioprs had offered him i20 to testify to that
effect ; this he denied, and another witness was
called to prove it, but was rejected ; Pollock,
C. B.: "The reason is that it is totally irrel-
evant to the matter in issue that some person
should have thought 6t to offer a bribe to the
witness to give an untrue account of a trans-
action, and it is of no importance whatever if
that bribe was not accepted"); 1888, R. v.
Shaw, 16 Cox Cr. 503, Cave, J. (bias, ad-
missible) ; Ala. : 1858, McHugh v. State, 31
Ala. 320 (bias ; admitted) ; 1859, Blakey's
Heirs u. Blakey's Executrix, 33 id. 618 (ex-
cluded) ; 1860, Lewis v. State, 35 id. 386 (at-
tempt to coerce a witness ; admitted) ; 1866,
BuUard v. Lambert, 40 id 210 (bias ; admitted) ;
Ark. : 1889, Crumpton v. State,' 52 Ark. 274
(bias ; admissible) ; 1890, HoUingsworth v.
State, 53 id. 387, 388, 14 S. "W. 41 (that the
witness was working for a reward) ; Cal. : 1878,
People V. McKeller, 53 Cal. 65 (length of resi-
dence in one place ; excluded) ; 1897, People v.
Wong Chuey, 11 7 id. 624, 49 Pac. 833 (that the
witness had attempted to bribe another ; ad-
mitted) ; Cmin. : 1828, Atwood v. Welton, 7
Conn. 70 (bias ; admissible) ; 1874, Beardsley v.
Wildman, 41 id. 515 (same) ; Jnd. .-1859, Bersch
V. State, 13 Ind. 435, semble (place of residence
may affect credibility) ; 1869, Fogleman v. State,
32 id. 145 (the witness' motives for turning
State's evidence in another cause ; excluded) ;
1878, Scott V. State, 64 id. 400 (bias ; admis-
sible) ; 1881, Johnson v. Wiley, 74 id. 233, 238
(same) ; la. : 1898, State v. Heacock, 106 la.
191, 76 N. W. 654 (bias ; excluded) ; JCy. : 1855,
Cornelius v. Com., 15 B. Monr. 545 (bias; ad-
missible) ; Me. : 1867, New Portland v. King-
field, 55 Me. 176 (bias; admissible); 1874,
Davis V. Roby, 64 id. 428, 430 (a statement by
the witness that her memory was poor and her
husband had to keep telling her what to say ;
admitted) ; Mass. : 1854, Harrington v. Lincoln,
2 Gray 133 (a .statement, after testifying, to an-
other witness, that the former would lie on the
stand under certain circumstances ; excluded, as
affecting only general morals, not bias in the
case) ; 1857, Collins v. Stephenson, 8 id. 439
(threats of revenge) ; 1857, Com. v. Farrar, 10
id. 7 (a statement as to conduct alleged to show
bias ; excluded, because it did not) ; 1864,
Tyler v. Pomeroy, 8 All. 483, 605 (bias; ad-
missible) ; 1869, Swett v. Sbuniway, 102 Mass.
369 (that the witness had improperly offered
money to obtain a copy of the contract from the
opponent ; admitted) ; 1875, Brooks v. Acton,
117 id. 204, 209 (bias ; admis.sible) ; 1882, Com.
V. Donahoe, 133 id. 408 (that the defendant
had not offered to pay him money to suppress
his testimony ; admitted, under the statute
mentioned in the preceding section ) ; Mich. :
1871, Geary v. People, 22 Mich. 220 (unscru-
pulousness ; admitted) ; 1874, Hamilton v. Peo-
ple, 29 id. 173, 182 (fabrication of testimony;
admissible) ; Miss. . 1859, Newcomh v. State,
37 Miss. 383, 401 (bias ; admissible) ; 1889,
Jones 0. State, 67 id. 115, 7 So. 220 (same) ;
Nebr. .-1892, Consaul v. Sheldon, 35 Nebr. 264,
52 N. W. 1104 (same) ; N. H. : 1851, Titus v.
Ash, 24 N. H. 332 (same); 1852, Martin v.
Famham, 25 id. 99 (same); 1852, Folsom
V. Brawn, ib. 122 (tampering with another wit-
ness ; admitted) ; N. Y. : 1847, People v. Austin,
1 Park. Cr. 0. 156 (an offer by deceased's father
1187
§ 1022 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
Two special cases need mention. (1) In the early part of the 1800s, little
discrimination was shown between different sorts of facts tending to dis-
credit ; and thus facts indicating Corruption or Bias were occasionally treated
as facts affecting Moral Character, and therefore such prior Self-Con tradic-
tions were excluded. This is seen in some of the earlier English rulings ; ^
but in Attorney-General v. Hitchcock this misunderstanding was cleared up,
and the distinction between Bias or Corruption and Character was firmly
settled. (2) In some instances — for example, showing previous connection
of a rape-prosecutrix with third persons — the fact may be regarded either
as affecting her moral character as witness (ante, § 979) or as affecting the
probability of her consent (ante, § 200) ; in the former view, a Self-Contra-
diction would not be admissible, while in the latter view it would be admis-
sible if the jurisdiction in question recognized the admissibility of that class
of evidence. But Courts differ on that point ; thus, the propriety of using
a Self-Contradiction will there depend on the view taken by the Court of the
other controversy.
§ 1023. Cross-Examination to Self-Contradiction, -ro-ithout Extrinsic Testi-
mony. Suppose that the witness is asked, "Did you at such a time and
place say the contrary ? ", the matter being a collateral one ; is this much
allowable, provided no attempt is made by outside testimony to prove the
self-contradiction if it is denied by the witness ? It has been sometimes
said that even this much — i. e. the attempt to prove the collateral self-
contradiction by the witness himself — is not allowable.^ But on principle
to compound for the former's death was held in- 1880, V. S. v. Schindler, 18 Blatchf. 230,
admissible independently, yet admissible to oon- Benedict, J. (the utterances showing prejudice
tradict denials of it by the witness, as not " would have been admissible if no inquiry
"collateral" because it showed "corrupt or had first been made of W. in regard to them,
revengeful feelings"); 1882, Schultz v. E. Co., and inquiry of and denial by him did not
89 N. Y. 248 (procuring another witness to make them any the less admissible ") ; Va. :
testify falsely, admitted) ; N. 0. : 1842, State o. 1882, Langhorne v. Com., 76 Va. 1019 (bias,
Patterson, 2 Ired. 353 (" the temper, disposition, admissible ; but limiting the evidence to declara-
or conduct of the witness in relation to the cause tions directly expressing hostility) ; Vt. ; 1862,
or the parties " ; here, whether the witness had Hutchinson v. Wheeler, 35 Vt. 340 (bias ; ad-
been paid fnr coming from another State to niissible) ; 1869, Ellsworth v. Potter, 41 id.
testify, allovveil) ; 1871, Clark v. Clark, 65 N. C. 690 (same).
661 j)* Had the question upon cross-examination Presumably, the impeaching witness him-
been general, ' Are your feelings towards the self may also be impeached by a prior con-
plaintiff friendly or unfriendly ? ' and the answer tradictory statement of what he now says the
been ' My feelings towards him are friendly,' first witness said ; i. e. this will not be a col-
evidence in contradiction might have been of- lateral matter: 1881, State w. Lawlor, 28 Minn,
fered as tending to show the animus. . . . But 222, 9 N. \V. 698 ("at least within reasonable
when the cross-examination, insti*ad of being limits").
general, descends to particulars, then the party ^ Particularly in Harris ». Tippett, ante,
is bound Dy the answer and cannot be allowed § 1005.
to go into evidence aliunde in order to con- ^ 1856, Gilbert v. Gooderham, 6 U. 0. C. P.
tradic^t the witness"; this distinction is un- 46 (Dmper, C. J. ; " It very frequently happens
sound); 1901, Carr v. Smith, 129 id. 232, 39 that questions which in strictness are irrelevant
S, IJ. 831 (expressions indicating bias, held are put and answered without objection. But I
coUatPval, where the witness was a partv) ; Oh. . take the rule to be clearly established that no
1884, Kent v. State, 42 Oh. St. 428, 431 (bias, question can be legally put to a witness on cross-
etc. ; admissible); 1865, Gaines u. Com., 50 examination for the mere purpose of contradict-
Pa. 326, 328 (statements showing the witness ing him. And if such question be put, the
possibly the real murderer and thus motivated answer is conclusive "). Accord: 1831, Jackson
to divert suspicion from himself, admitted)
S. C. (see the cases in the note anie, § 1021)
U. S. : 1840, U. S. v. Dickinson, 2 McL. 330
V. Warford, 7 Wend. 61 ; 1849, Seavy v. Dear-
liorn, 19 N. H. 356 ; 1824, Starkie, Evidence, I,
189.
1188
§§ 1017-1046] SELF-CONTRADICTION. § 1023
there seems to be no objection. The reasons invariably advanced by the
Courts {ante, § 1019) have reference solely to the formation of a new collat-
eral issue for outside testimony ; i. e. if the witness deny the prior utterance,
the impeacher would proceed to prove it by other witnesses and the im-
peached would wish to disprove it by other witnesses, and it is to this
process that the objections of Unfair Surprise and Confusion of Issues apply.
They do not apply at all where the impeacher merely seeks to prove the
utterance by the witness himself and rests content with the witness' admis-
sion or denial. There is therefore no objection, either of principle or of
policy, to such an attempt to prove the self-contradiction by the witness
himself.^ Moreover, it is not uncommon to obtain, by cross-examination
alone, an adequate exposure of the witness' inconsistencies ; and no artificial
limits should be set for its employment. The following passages illustrate
what may sometimes be thus effected :
1664, Turner's Trial, 6 How. St. Tr. 565, 606 ; it was vital to the defendant's case that
he was at home on Thursday night and absent Friday night; his maid-servant being
called for him, L. C. J. Hyde : " Did your master go forth on Friday night ? " Maid :
" No; he was at home and in bed all that night till 8 in the morning; and Thursday
night before " ; Defendant : " A silly soul, she knows not what she says " ; L. C. J. Hyde :
" I will ask you again ; was your master at home on Friday night?"; Maid: "No, I
think he was not " ; L. C. J. Hyde : " Why did you say so before ? " ; Maid: " I cannot
remember, sir " ; C. J. Bridgman : " She knows her master's mind."
1811, Berkeley Peerage Tiial, Sherwood's Abstract, 189, 192, 273; the issue was
wiiether Lord and Lady Berkeley were married before their eldest son was born, and
this again turned mainly upon the genuineness or forgery of an entry in the marriage-
register made in the name of Hupsman, the parish vicar; Lady Berkeley claimed its
genuineness; Nicholas Hicks, au attorney, was offered to prove this, and swore con-
vincingly, as being well acquainted with the writing; he was asked at the beginning of
his cross-examination : " Have you been conversing with anybody lately as to this hand-
writing?" "I have not," the time of the trial being May; "You have not been at
Spring Gardens, [Lady Berkeley's residence,] lately, have you ? " "I have not ; not to
converse with anybody on the subject " ; " Have you been there ? " "I have been there
several times "; " Whom did you go to there ? " "1 saw Lady Berkeley." " Do you
mean to say you have not talked with anybody since you came to London as to the man-
ner in which Hupsman wrote?" "I have not." After a long series of questions on
other matters, the cross-examiner finally returned and asked how he came to be a wit-
ness, when he said that he had told Lady Berkeley that he could identify the register-
entry; "When?" " I think in the month of April." "It was in Spring Gardens you
went to Lady Berkeley?'' "Yes"; "And you there told her you could swear to
Hupsman's handwriting ? " " Yes " ; " And that was what passed between you ? "
"Yes"; whereupon his first answers above were read; and he was later committed to
Newgate for contempt of the House.'
* Accord: 1871, R. u. Holmes, 12 Cox Cr. » 1871, Tlchborne «. Lushington, Heywood's
143, per Kelly, C. B., semble ; 1899, Spring Eep. 148 (cross-examination of the claimant as
Valley v. Gavin, 182 111. 232, 54 N. E. 1035 to the reason for making his will in Australia ;
(trial Court has discretion) ; 1847, Howard ». a good illustration) ; 1860, Wardlaw, J., in
ins. Co., 4 Den. 504, 506. Compare also the Chapman «. Cooley, 12 Rich. 660 ("there is no
cases cited ante, § 1006. For the propriety of difference in principle between his contradiction
repeating the matter of the direct exa/mination on of himself on the stand and outside of the
the cross-examination, in order to involve the court-house"),
witness in self-contradictions, see ante, § 782.
1189
§ 1025 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
3. Preliminary 'Warning Necessary.
§ 1025. Reason of the Rule. It has been already noticed {ante, § 1019)
that, to obviate the objection of Unfair Surprise, a natural expedient is to ask
the witness, while on the stand under cross-examination, whether he made
the supposed contradictory statement. He is thus warned that it will be
offered against him by testimony later produced ; and he may thus either
prepare to deny it, if he claims not to have made it, or explain it, if he ad-
mits having made it. The reason and the nature of this preliminary question
and warning have often been explained by the judges :
1820, Ahhotl, C. J., in The Queen's Case, 2 B. & B. 313:1 ..jf jt be intended to bring
the ci-edit of a witness into question by proof of anything he may have said or declared
touching the cause, the witness is first asked, upon cross-examination, whether or no he
has said or declared that which is intended to be proved. If the witness admits the words
or declarations imputed to him, the proof on the other side becomes unnecessary, and the
witness has an opportunity of giving such reason, explanation, or exculpation of his con-
duct, if any there may be, as the particular circumstances of the transaction may happen
to furnish; and thus the whole matter is brought before the court at once, which in our
opinion is the most convenient course. . . . [If the witness denies the utterance or claims
the privilege of silence], the proof in contradiction will be received at the proper season.
But the possibility that the witness may decline to answer the question affords no .suffi-
cient reason for not giving him the opportunity of answering and of offering such explan-
atory or exculpatory matter as I have before alluded to ; . . . not only for the purpose
already mentioned, but because, if not given in the first instance, it may be wholly lost,
for a witness who has been examined and has no reason to suppose that his further at-
tendance is requisite often departs the Court, and may not be found or brought back until
the trial be at an end. So that, if evidence of this sort could be adduced on the sudden
and by surprise, without any previous intimation to the witness or to the party producing
him, great injustice might be done, . . . and one of the great objects of the course of
proceeding established in our courts is the prevention of surprise, as far as practicable,
upon any person who may appear therein."
1851, Ranney, J., in King v. Wicks, 20 Oh. 91 : "In addition to the reasons already
stated [the fairness of giving opportunity for explanation], others equally cogent could be
given. To make the truth manifest upon the issues joined between the parties is the
object of all evidence. This testimony has no direct bearing upon any disputed fact, but
raises a collateral issue upon the credit to be given to a witness, and with all collateral
issues, is calculated to divert the minds of the jury from the points in controversy in the
case. Such collatei-al inquiry may and often will become necessary; but it should be
avoided where it can be, and I firmly believe it may be avoided in a majority of cases
where the inquiry is first made of the witness himself, either by his confessing such con-
tradictory statements or giving such explanations in regard to them as will convince the
party that nothing is to be made by pursuing the matter further. Again, witnesses are
required, willing or unwilling, to come into court and testify. They should appear there
under the full confidence that their feelings and reputations will be respected and pro-
tected, so far as is consistent with the ends of justice. The witness suddenly finds
himself on trial for his veracity. ... A word imperfectly heard, forgotten, or omitted,
may change his whole meaning, and make him say what he never thought of. . . . [A
bitter strife may ensue] which might all have been avoided by one minute's explanation
in the first instance from the party implicated in the presence of those brought to
impeach him."
*■ s. c, Queen Caroline's Trial, Linn's ed.. Ill, 259.
1190
§§ 1017-1046] SELF-CONTEADICTION. § 1027
§ 1026. History of the Rule. But this rule is by no means an immemorial
tradition. The reasons above explained were not worked out until well into
the 1800s. The rule, as a rule, may be said to have had its birth with the
response of the Judges in The Queen's Case (quoted above) in 1820. This
utterance is said to have come as a surprise to the Bar ; and up to that time
no established requirement of the kind existed.^ None of the treatises by
practitioners, English or American, published prior to The Queen's Case men-
tions such a proviso. Add to this that, in all of the New England jurisdic-
tions, the continuous traditions of practice down through the first half of the
1800s recognized no such requirement,^ that in such others of the original
States as Pennsylvania and New Jersey the rule has never found favor,^ and
that in New York,* Virginia,^ and Georgia^ traces of a similar sort appear.
We may believe, therefore, that, as a requirement indispensable, the doctrine
is an innovation dating from 1820. Thus, it may be fairly expected to stand
upon its merits, and not upon long traditional membership in our system of
evidence ; and it is worth while to appreciate this, for the rule is open, par-
ticularly in its more recent arbitrary form, to serious objection.
§ 1027. Objections to the Rule. The objection in brief is that in many
cases it is impossible for the impeaching party to ask the question while the
witness is on the stand, because it is often not until after the testimony is
delivered that the prior contradictions are brought to the opponent's notice,
and thus, wherever the witness becomes unavailable by death or absence, the
contradictions cannot be used. As there is at least an equal chance that the
alleged contradictions were really uttered and cannot be explained away, it is
a poor policy that favors exclusively the witness to be impeached by exempt-
ing him from impeachment ; justice demands with equal force that the im-
.peaching party, if acting in good faith, should not be invariably the one to
suffer, as he is under a rigid enforcement of the rule. This argument has
been well expounded in the following opinion:
1847, Davis, J., in Downer v. Dana, 19 Vt. 345: " Were the question res Integra, I con-
fess I could see no advantages to the cause of truth and justice, from the adoption of this
"■ It is said by Church, C. J., In 22 Conn. Vermont had heard of such a rule here, ajid even
267 (1853) and by Parker, C. J., in 17 Mass. now I do not find it naturalized anywhere except
160 (1821), that the practice in England before here ") ; N. H. : 1S51, Titus v. Ash, 24 N. H.
The Queen's Case was not established, but that 3.31 ; 1867, Cook v. Brown, 34 id. 471 ; Me. :
the circuits and judges differed. So Car as ex- 1831, Warew. Ware, 8 Greenl. 52, semble; 1850,
tant decisions go, the matter seems to have been Wilkins v. Babbershall, 32 Me. 184 ; 1867, New
left unnoticed: 1732, Pendrell v. Pendrell, 2 Portlands. Kingfield, 65 id. 176; R. /. ; 1833,
Str. 925 (preliminary question not spoken of) ; Avery's Trial (Newport), R. I., Hildreth's Ke-
1761, Wright B. Littler, 3 Burr. 1247, 1255 (a port, 90 (before Eddy, C. J., Brayton, and
dying declaration by an attesting witness that Durfee, JJ. ; "this question had been settled a
he had forged the will ; no requirement of this year ago at Providence, where it was decided "
soi't is spoken of). that the witness must first be asked; counsel
* Mass. i 1821, Tncker v. Welsh, 17 Mass. intimated that the prior practice had been to the
160 ; 1862, Gould v. Norfolk Lead Co., 9 Gush, contrary).
347 (Shaw, C. J. : "that is the English rule, but » 1830, Fries v. Brugler, 12 N. J. L. 80,
we have always adopted a different rule) ; 1855, semble; 1872, Walden v. Finch, 70 Pa. 463.
Com. V. Hawkins, 3 Gray 465 ; 1867, Day v. * In People v. Moore, 15 Wend. 422 (1836),
Stickney, 14 All. 260 ; Conn. : 1853, Church, the rule seems to have been forgotten.
C. J., in Hedge v. Clapp, 22 Conn. 266 ; Ft. : » 1855, Unis v. Charlton, 12 Grdtt. 497.
1847, Davis, J., in Downer v. Dana, 19 Vt. 345 » 1846, Sealy v. State, 1 Kelly 218 (left un-
("at that time [1821] I think no lawyer in decided).
1191
§ 1027 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
rule of evidence, which are not equally well secured by the old practice of allowing the
party whose witness has in that way been attacked to recall him, if he chose, for the
purpose of contradicting or explaining the conduct or declarations imputed to him. In-
deed, I have seen no objections of consequence to that course, except that it may some-
times happen that the witness may have departed from court supposing his attendance no
longer necessary. Such an objection practically is entitled to very little weight, as it would
be provided against by requiring, as is in fact generally done for other reasons, witnesses
to remain in court until the testimony is finished. On the other hand, this rule would be
productive of intolerable mischiefs, were it not mitigated by the somewhat awkward and
inconvenient expedient of suspending the regular course of testimony, for the pui-pose of
recalling the witness proposed to be impeached and laying a foundation for the impeach-
ing testimony by interrogating him whether he did or said the things proposed to be
proved. Besides, the privilege of doing this will be lost in all those cases where the wit-
ness has left court and cannot be found; the opposite party has every inducement to cut
oS this opportunity by immediately discharging all such as he may have reason to suspect
are liable to be impugned. In addition to this, the avowed attempt to produce self-im-
peachment, made of course in a tone and manner evincing distrust of the general narrar
tive, too often both surprises and disconcerts a modest witness. He answers hastily and
confusedly, as is natural from having such a collateral matter hastily spring upon him.
Every one conversant with judicial proceedings must have often observed with pain an
apparent contradiction produced in this way, when he is satisfied none would have existed
under a different mode of proceeding. ... To my mind these considerations present very
formidable objections to the practice first authoritatively developed on the trial of the
Queen in the House of Lords."
A due coasideration for these arguments leads to the conclusion that in gen-
eral the preliminary question should indeed be put, before producing the
alleged contradiction, but that this requirement, instead of being rigid and
invariable, should be open to exceptions, and should be dispensed with, in the
Court's discretion, where the putting of the question Has become impossible
and the impeaching party has acted in good faith. This sensible form of the
rule is, however, in vogue in a few jurisdictions only.^ The modern tendency
has been to enforce the rule with inconsiderate and arbitrary rigidity. To-
day it does, upon the whole, as much evil as good, and it is to be hoped that
a reaction will some day manifest itself.
§ 1028. state of the Law in the Various Jurisdictions. In all but a few
jurisdictions the rule is recognized, and is enforced as an inflexible one. In
a few jurisdictions its enforcement is left to the trial Court's discretion. In
a few others it is not recognized at all.^
T See a forcible opinion by Church, C. J., iu ness, upon cross-examination as to a former
Hedge v. Clapp, 22 Conn. 266 (1853). statement made by him relative to the subject-
1 The rnle is sanctioned, where not otherwise matter of the cause, and inconsistent with his
noted: .S«crZa«.d; 1820, The Queen's Case, 2 B. & present testimony, does not distinctly admit
B. 313, by all the Judges ; 1837, Andrews v. that he has made such statement, proof may he
Askey, 8 C. & P. 7 ; 1840, Carpenter v. Wall, given that he did in fact make it; but before
11 A. & E. 803 (where in a seduction suit a for- such proof can be given, the cin-nnistances of
raer admission of the plaintili's daughter that the supposed statement, sufficient to designate the
B had seduced her was .subjected to this rule, particular occasion, must be mentioned to the
though it had also legitimate effect as showing witness, and he must be asked whether or not
lightness of conduct ; the Court do not say that he has made such statement"); Canada: the
the rule would have been foregone had the other statutes are like the English statute sh;7TO :
purpose of the evidence been the chief or the Dom. Crim. Code 1892, § 701 ; £. 0. : Rev. St.
sole one; and it is not clear just when the line is 1897, c. 71, § 31; iV £r • Cons St 1877 c
to be drawn) ; St. 1854, c. 125, § 23 (" If a wit- 46, § 20 ; New/. : Cons. St. 1892,' c. 57, § 18 ';
1192
1017-1046]
SELF-CONTKADICTION.
§ 1029
§ 1029. Preliminary Question must be Specific as to Time, Place, and Per-
son. If the preliminary question is to be useful as a warning to enable the
N. Sc. : Rev. St. 1900, e. 43 ; Ont. : Rev. St.
1897, 0. 73, § 18 ; P. E. I. : St. 1889, 0. 9,
§ 16 ; Que. : 1376, Decary v. Poirier, 20 Low.
Can. Jur. 167; United States: Ala.: 1840,
Lewis V. Post, 1 Ala. 69; Alaska: C. C. P.
1900, § 670 (like Or. Annot. C. 1892, § 841);
Ark.: Stats. 1894, § 2960 ("Before other evi-
dence can be offered of the witness having made
at another time a different statement, he must
be inquired of concerning the same, with the
oirciimstanoes of time and persons present, as
correctly as the examining party can present
them"); 1854, Drennen ti. Lindsey, 15 Ark.
361 ; 1877, Collins v. Mack, 31 id. 694 ; 1881,
Griffith w: State, 37 id. 328 ; 1896, Carpenter v.
State; 62 id. 286, 36 S. W. 900 ; Cal. : C. C. P.
1872, § 2052 ("before this can be done, the state-
ments must be related to him, with the circum-
stances of times, places, and persons present, and
he must be asked whether he made them, and if
so, allowed to explain them ") ; 1866, Eice v.
Cunningham, 29 Cal. 501 ; 1875, Leonard v.
Kingsley, 50 id. 658 ; 1892, Young v. Bradv, 94
id. 130, 29 Pac. 489 ; 1895, People v. Chin
Hane, 108 id. 597, 41 Pac. 697 (applied to an
offer to show that one identifying the accused as
a murderer had at first identified a different per-
son) : 1897, People v. Wade, 118 id. 672, 50
Pac. 841 (under § 2052, C. C. P., asking is nec-
essary) ; Colo. : 1896, Mullen v. MoKim, 22
Ciilo." 468, 45 Pac. 416 ; Conn. : 1853, Hedge v.
Clapp, 22 Conn. 266 (required, but subject to
exceptions) ; Fla. • Rev. St. 1892, § 1102 ("the
circumstances of the supposed statement, suffi-
cient to designate the particular occasion, must
be mentioned to the witness, and he must be
asked whether or not he made such statement ") ;
0a.. 1846, Sealy v. State, 1 Kelly 218 (left
undecided) ; 1849, Williams v. Turner, 7 Ga.
351 (required) ; Johnson v. Kinsey, ib. 429 ;
Williams v. Chapman, ib. 470 ; Code 1895,
§ 5292, Or, C. § 1026 (" with as much certainty
as possible to the time, place, person, and cir-
cumstances ") ; Raw. : Civ. Laws 1897, § 1422
(like Eng. St. 1854, c. 125, § 23) ; Ida. : Rev.
St. 1887, § 6083 (like Cal. 0. C. P. § 2052) ;
HI. ; 1846, Regnier v. Cabot, 7 111. 41 ; 1856,
Sigsworth V. Coulter, 18 id. 205 ; Iiid. : 1839,
Doe V. Reagan, 5 Blackf. 219 ; 1843, Mclntire
V. Young, 6 id. 497 ; 1861, Judy v. Johnson, 16
Ind. 371 ; 1862, Hill v. Goode, 18 id. 207, 209 ;
la. : 1889, Richmond v. Sundburg, 77 la. 258,
42 N. W. 184 ; 1895, Klotz v. Jameis, 96 id. 1,
64 N. W. 648 ; Kan. : 1872, State v. Home, 9
Kan. 128 (required) ; 1888, Hughes v. Ward,
38 id. 454, 16 Pac. 810, seaible (not required) ;
Ky.: C. C. P. 1895, § 598 ("circumstances of
time, place, and persons present, as correctly as
the examining party can present them ") ; 1883,
Craft V. Com., 81 Ky. 250 (Code rule held ap-
plicable to criminal cases) ; La. : 1853, State v.
Cazeau, 8 La. An. 115; 1880, State v. Angelo,
32 id. 408 ; 1895, State v. Johnson, 47 id. 1225,
17 So. 789 ; 1896, State v. Delaneuville, 48 id.
502, 19 So. 550 ; Me. : 1831, Ware v. Ware, 8
Greenl. 52, semble (not required) ; 1850, Wilkins
V. Babbershall, 32 Me. 184 (same) ; 1867, New
Portland v. Kingfield, 55 id. 176 (same) ; Md. :
1839, Franklin Bank i;. Navig. Co., 11 G. & J.
35 ; 1843, Whiteford v. Burkmyer, 1 Gill 139 ;
1890, Brown v. State, 72 Md. 475, 20 Atl. 140 ;
1896, Peterson v. State, 83 id. 194, 34 Atl. 834 ;
Mass. : here, down to 1869, the question was
not required at all (the early citations are
given ante, § 1026, note) ; in that year a statute
adopted the requirement where mie's own witness
was to be contradicted : St. 1869, c. 425; Pub.
St. 1882, c. 169, § 22, Rev. L. 1902, c. 175, § 24
("before proof of such inconsistent statements
is given, the circumstances thereof sufficient to
designate the particular occasion shall be men-
tioned to the witness, and he shall be asked if
he has made such statements, and if so, shall be
allowed to explain them ") ; 1869, Ryerson v. Ab-
ington, 102 Mass. 526, 531 (applies the statute
strictly) ; 1876, Newell v. Homer, 120 Mass. 277,
283; 1883, Com. v. Thyng, 134 id. 191, 193 (men-
tioning person only, without time or place, and
with no reason for the omission, is not suffi-
cient) ; 1885, Batchelder v. Batohelder, 139 id.
1, 29 N. E. 61 ; but fgr an opponent's witness,
the old rule remains unaltered : 1871, Blake v.
Stoddard, 107 id. Ill ; 1895, Carville v. West-
ford, 163 id. 544, 40 N. E. 894; 1898, AUin v.
Whittemore, 171 id. 259, 50 N. E. 618 ; Mich. :
1842, Sawyer v. Sawyer, Walk. Ch. 48 ; 1852,
Smith V. People, 2 Mich. 415 ; Minn. : 1869, State
i^. Staley, 14 Minn. 114 ; Mo. . 1839, Garrett
V. State, 6 Mo. 2, 4 ; 1851, Clementine v. State,
14 id. 115; 1858, State j>. Dalton, 27 id. 15;
1860, State v. Davis, 29 id. 397 ; 1868, State v.
Starr, 38 id. 279 ; Mont. : C. C. P. 1895, § 3380
(like Cal. C. § 2052) ; Nebr. : 1890, Wood River
. Bank v. Kelley, 29 Nebr. 597, 46 N. W. 86 ;
1892, Hanscom v. Burmood, 35 id. 506, 53
N. W. 371 ; 1896, Columbia Bank v. Rice, 48
id. 428,- 67 N. W. 165 ; N. H. : 1851, Titus v.
Ash, 24 N. H. 331 (not required) ; 1857, Cook
V. Brown, 34 id. 471 (same) ; N. J. : 1830,
Fries v. Brugler, 12 N. J. L. 80, semble (not
required) ; N. M. : Comp. L. 1897, §§ 3024,
3026 (" the circumstances of the supposed state-
ment, sufficient to designate the particular oc-
casion, must be mentioned to the witness, and
he must be asked whether or not he did make
such statement"); JV. Y.: 1837, Everson w.
Carpenter, 17 Wend. 421, semhle ; 1847, People
D. Austin, 1 Park. Cr. C. 159 ; People v. Jack-
son, 3 id. 598 ; 1859, Stephens v. People, 19
N. Y. 570 ; 1871, Sloan v. R. Co., 45 id. 127 ;
1872, Gaffney v. People, 53 id. 423 ; 1872,
Height V. People, 50 id. 394 ; N. G. : 1842,
State V. Patterson, 2 Ired. 354 ; 1847, Pipkin v.
Bond, 5 Ired. Eq. 101 ; 1848, Edwards v. Sulli-
van, 8 Ired. 304 ; 1856, Hooper v. Moore, 3
Jones 429 ; 1869, State v. Kiikman, 63 N. C.
248 ; 1876, State v. Wright, 75 id. 440 ; 1879,
Jones t). Jones, 80 id. 246, 247 (not ,neoessary
for points "pertinent and material to the in-
quiry," as distinguished from statements involv-
1193
§ 1029
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
witness to prepare to disprove the utterance or to explain it away if admitted,
it must usually specify some details as to the occasion of the remark. The
witness may perhaps without this understand the occasion alluded to ; but
usually he will not, and in such a case this specification of the details is a mere
dictate of justice. The modern tendency of American Courts, however, is to
lose sight of the fact that this specification is a mere means to an end (namely,
the end of adequately warning the witness), and to treat it as an inherent
requisite, whether the witness really understood the allusion or not. The
result of this is that unless the counsel repeats a particular arbitrary formula
of question, he loses the use of his evidence, without regard to the substan-
tial adequacy of the warning. Such a practice is impolitic and unjustified
by principle. Add to this that the same Court is seldom uniform with itself
in the elements of this fetish-formula which it prescribes as indispensable;
and it will be seen that the rule on the whole is apt to produce to-day in
its application as much detriment as advantage.
There are thus two ways of treating the rule that the details must be speci-
fied : (1) It may be treated as a general requirement that the witness' atten-
tion be adequately called to the alleged utterance, the trial Court to determine
whether this has been done in a given case ; this is the practice in England,
Alabama, and Vermont, for example. (2) It may be treated as an invari-
able formula, the same for all cases ; this is the unfortunate practice in most
American courts.^
ing bias, etc.) ; 18S1, Rhea v. Deaver, 85 id. 337,
339 (same) ; 1882, Black v. Baylees, 86 id. 527,
534 (same); 1884, State v. Mills, 91 id. 581,
598 (same) ; 1890, State v. Morton, 107 id. 890,
12 S. E. 112 (same) ; 1897, Barnett v. K. Co.,
120 id. 517, 26 S. E. 819 (same) ; Oh. : 1851,
King V. Wicks, 20 Oh. 89 ; Or. : Annot. C. &
Stats. 1892, § 841 (like Cal. C. C. P. § 2052) ;
1895, State v. Brown, 28 Or. 147, 41 Pac. 1042 ;
Pa. : 1839, Sharp v. Emmet, 5 Whart. 288, 300
(discretion of the trial Court) ; 1845, McAteer v.
• McMuUen, 2 Pa. St. 32 ; 1846, Kay v. Fredrigal,
3 id. 221, 223 (discretion of the trial Court) ;
1847, MoKee v. Jones, 6 id. 425, 429 (same) ;
1865, Gaines v. Com., 50 id. 328 ; 1872, Walden
V. Finch, 70 id. 436 (to be applied with discre-
tion) ; 1874, Brubaker i;. Taylor, 76 id. 83, 87
("in general," necessary); 1879, Rothrock v.
Gallagher, 91 id. 108, 113 (discretion); 1898,
Cronkrite v. Trexler, 187 id. 100, 41 Atl. 22
("It is now settled " that the matter rests in the
trial Gourd's discretion) ; S. 0. : 1898, State v.
Henderson, 52 S. C. 470, 30 S. E. 477 ; Tenn. :
1837, Richmond v. Richmond, 10 Yerg. 346;
1848, Story v. Saunders, 8 Humph. 666 ; 1873,
Cole V. State, 6 Baxt. 239 ; Tex. : 1864, Ayres
V. Duprey, 27 Tex. 599 ; U. S. : 1840, McKiimey
V. Neil, 1 McLean 547 ; U. S. v. Dickinson, 2
id. 329 ; 1847, Chapin v. Siger, 4 id. 381 ;
1853, Conrad v. Griffey, 16 How. 46 ; 1858,
U. S. V. Holmes, 1 Cliff. 114 ; 1890, Chicago,
M. & St. P. R. Co. V. Artery, 137 U. S. 619,
11 Sup. 129 ; 1893, Hickory ». U. S., 151 id.
303, 309, 14 Sup. 334 ; 1894, Mattox !/. U. S.,
156 id. 237, 245, 15 Sup. 337; Ft.: 1837,
Pierce v. Gilson, 9 Vt. 222 ; 1847, Downer v.
Dana, 19 id. 344 ; Fa. .■ 1853, Wormeley's Case,
10 Gratt. 689, semble (required) ; 1855, Unis v.
Chariton's Adm'r, 12 Gratt. 497 (Daniel, J. :
" Cases may be supposed in which the Courts
may be strongly called upon to dispense with
or to make exceptions to the rule ; and I will
not undertake to say that special exigencies
may not occasionally arise requiring the Courts
to depart from the rule rather than to saciifice
justice by sternly adhering to it") ; 1880, Davis
V. Franke, 33 id. 424 ; St. 1899-1900, c. 117,
§ 2 ("the circumstances of the supposed state-
ment, sufficient to designate the particular oc-
casion, must be mentioned ") ; Wis. : 1858,
Ketchingmau v. State, 6 Wis. 426, 431 ; 1888,
Welch V. Abbot, 72 id. 515, 40 N. W. 223.
"■ England: this part of the rule seems to
have been first promulgated in 1829, in Angus
n. Smith, Moo. & M. 474 (Tindal, C. J. : " You
must ask him as to the time, place, and person
involved in the supposed contradiction ; it is not
enough to ask him the general question whether
he has ever said so and so") ; United States: the
statutory provisions on this point have been
already cited ante, § 1028; the judicial rulings
are as follows : Ala. : 1840, Lewis v. Post, 1 Ala.
73 (time and person ; here the witness asked for
specifications, and the counsel refused them) ;
1841, State v. Marler, 2 id. 46 (where the witness
had been asked as to statements to two named
persons or any other ; the two named were
allowed to testify to contradictions, but not a
1194
1017-1046]
SELF-CONTRADICTION.
§ 1030
§ 1030. Testiinony of Absent or Deceased Witnesses ; is the Requirement
here also Indispensable ? Suppose that it has become impossible to put the
third) ; 1847, Howell v. Reynolds, 12 id. 128 ;
1848, Moore v. Jones, 13 id. 303 ; 1849, Carlisle
V. Hunley, 15 id. 625 (time, place, and person) ;
1851, Powell V. State, 19 id.' 581 (time, place,
and circumstances) ; 1851, Armstrong v. Hiiff-
stutler, 19 id. 53 (substance of the statement
suffices) ; 1853, Kelson v. Iverson, 24 id. 15
(same ; here the time stated was held reasonably
accurate lor the purpose) ; 1879, Atwell .v. State,
63 id. 64 (time, place, and persons present) ;
1897, Southern R. Co. v. Williams, 113 id. 620,
21 So. 328 (" But the rule is not ironclad, —
that is, it does not require perfect precision as
to either [time, place, circumstances, or persons] ;
when it is clear that the witness cannot be
taken by surprise, and ample opportunity is
■ afforded to make any explanation desired, the
predicate is sufficient ") ; ^ri;. : 1881, Giiffith
V. State, 37 Ark. 332 (time, place, and person
spoken -to) ; 1883, Frazier v. State, 42 id. 70
(held sufficient, on the facts) ; Cal. : 1860, Baker
V. Joseph, 16 Cal. 177 ("time, place, and the
precise matter" ; "time, place, and occasion ") ;
1872, People v. Devine, 44 id. 457 (time, place,
and person) ; 1897, People «. Bosquet, 116 id.
75, 47 Pac. 879 (statute applied) ; 1898, Plass
V. Plass, 122 id. 4, 54 Pao. 372 ("persons pres-
ent," construed) ; 1898, Green o. R. Co., 122 id.
563, 55 Pao. 577 (asking held not sufficient on
the facts) ; 1901, Norris i;. Crandall, 133 id. 19,
65 Pac. 568 (questions held not specific enough) ;
1902, Sinkler v. Siljan, 136 id. 3.^.6, 68 Pac. 1024
(rule applied) ; Fla. : 1903, Brown v. State, —
Fla. — , 35 So. 82 (question held sufficient on
the facts, though no time was mentioned) ; Ga. :
1849, Williams v. Turner, 7 Ga. 351 (time, place,
person, and ether circumstances) ; 1854, Wright
V. Hicks, 15 id. 167 (rejected on the facts) ; 1861,
Matthis V. State, 33 id. 29 (time, place, and per-
son) ; m.: 1853, Gotloff v. Henry, 14 111. 386
(time, place, and circumstances ; yet not "every
possible circumstance of identiijj'," but such as
will "direct the mind of a witness of ordinary
ajiprehension to them ") ; 1855, Galena & C. U.
R. Co. V. Fay, 16 id. 569 (time, place, and per-
son, semble) ; 1864, Root v. Wood, 34 id. 286
(time and place) ; 1866, Miner v. Phillips, 42 id.
iSO (person only named ; excluded) ; 1867,
Winslow V. Newlan, 45 id. 151 (time, place, and
circumstances) ; 1872, Northwestern R. Co. v.
Hack, 66 id. 242 (an omission in a former state-
ment ; the question whether he had omitted as
alleged, held necessary) ; 1877, Richardson v.
Kelly, 85 id. 493 (time and place) ; Ind. : 1860,
Joy V. State, 14 Ind. 141 (time, place, and
person, etc. ) ; 1864, Bennett v. O'Byrne, 23 id.
60.5 (time sufficiently described on the facts) ;
1876, Hill V. Gust, 55 id. 61 (time, place, and
person) ; 1881, Mcllvain v. State, 80 id. 72
(time and place omitted ; question excluded) ;
1898, Roller v. Kling, 150 id. 159, 49 N. E.
948 (excluded because the statement testified to
was not called for in the same terms as the
prior question so as ,to admit of an answer
' ' Yes ' or " No. " This rule is entirely too
VOL, n. — 13
strict ; it would reduce the process of getting
evidence to a mumbling of prearranged formulas) ;
la. : 1852, Glenn v. Carson, 3 G. Gr. 529 (time
and place) ; 1859, State v. Ruhl, 8 la. 461
(merely asking "what he had sworn to"; ex-
cluded) ; 1862, Samuels u. Griffith, 13 id. 109
(time, place, person, and specific subject) ; 1863,
Strunk v. Ochiltree, 15 id. 180 ; 1868, Callanan v.
Shaw, 24 id. 454 (the witness was asked "what
he thought he made oath to " before, excluded) ;
1871, State v. Collins, 32 id. 41 (time, jdace,
and person) ; 1874, Nelson v. R. Co., 38 id.
565 (admitted on the facts) ; 1876, State v.
Kinley, 43 id. 295 (time, place, and person) ;
1876, State v. McLaughlin, 44 id. 83 (excluded
because time was not mentioned, though person
was) ; Ky. : 1900, Helfrich L. & M. Co. v.
Bland, — Ky. — , 54 S. W. 728 (time, place,
and person) ; Md. : 1867, Higgins v. Carlton,
28 Md. 138 (excluded, on the facts) ; 1873, Pitts-
burg & C. R. Co. V. Andrews, 39 id. 335, 339,
354 (admitted on the facts) ; 1896, Peterson v.
State, 83 id. 194, 34 Atl. 834 (time, place, and
person) ; Mich. ; 1852, Smith v. Peo]de, 2 Mich.
415 (time, place, and person) ; 1880, Howard v.
Patrick, 43 id. 121, 1-26, 5 N. W. S4 (time and
place not sufficiently mentioned) ; 1895, People
V. Considine, 105 id. 149, 68 N. W. 196 (asking
a stenographer to read from his minutes what
the witness formerly testified about a certain
transaction) ; Minn. ; 1868, State v. Hoyt, 13
Minn. 142 (time, place, and person) ; 1887,
Jones V. State, 65 id. 183 (time, place, and per-
son) ; Mo. .- 1870, Spaunhor.st v. Link, 46 Mo.
198 (time, place, and person) ; 1886, State v.
Reed, 89 id. 170, 1 S. W. 225 (time, place, and
person) ; 1888, State v. Parker, 96 id. 393, 9
S. W. 728 ("time, place, etc.") ; Netr. : 1890,
Wood River Bank v. Kelley, 29 Nebi'. 697, 46
N. W. 86 (time, place, and person) ; 1892,
Hanscom h. Burmond, 35 id. 506, 53 N. W.
371 (same) ; N. J. : 1899, Union S. N. Bank v.
Simmons, — N. J. Eq. — , 42 Atl. 489 (ask-
ing as to a part only will admit proof of that
part only) ; N. Y. : 1847, People v. Austin, 1
Park. Cr. C. 159 (admitted, where all the circum-
stances were mentioned except the name of the
person spoken to) ; 1855, Patchin v. Ins. Co., 13
N. Y. 270 (substance of the statement suffices) ;
1871, Sloan v. R. Co., 45 id. 127 (same ; leav-
ing it to the trial Court's discretion) ; 1881,
Hart V. Bridge Co., 84 id. 59 ("time, place,
and persons to whom or in whose presence ") ;
Jf. 0. : 1903, State v. Crook, — N. C. — , 45
S. E. 564 ("the rule must not be ironclad, and
must not be reduced to a petty technicality " ;
here, the exact time held not necessary) ; Or. :
1879, State v. McDonald, 8 Or. 117 (statute ap-
plied) ; 1882, Sheppard v. Yocum, 10 id. 408
(construing "persons present" to mean "per-
son to whom the statement was made") ; 1888,
State V. Hunsaker, 16 id. 499, 19 Pac. 605
(statute apjilied) ; 1896, State o. Ellsworth, 30
id. 145, 47 Pac. 199 (Mme, place, and person ;
but person is unnecessary if the statement is
1195
§ 1030 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
preliminary question on account of the witness' absence or decease, or some
other circumstance rendering him now unavailable ; may the question then
be dispensed with and the self-contradiction be shown without further pro-
viso ? On this subject great difference of judicial opinion exists. It is to be
observed that we are not dealing here with the case of an ordinary witness
who has left the court-room after testifying and cannot now be found for re-
call ; that case is regarded as governed by the general rule already examined ;
the witness is theoretically still available for recall {"post, § 1036), and it is
the impeacher's own fault that he was not detained in court.^ We are here
concerned with cases where the witness' testimony is not given to the court
orally and in person ; thus, as required by the Hearsay Eule (^o4, § 1396),
it is solely because he is personally unavailable that his testimony can be
presented in this shape. There are at least five distinct situations of this sort :
1. Deposition ; 2. Testimony at a Former Trial ; 3. Dying Declarations,
Statements against Interest, etc. ; 4. Statements of an Attesting Witness to a
Document; 5. Proposed Testimony admitted by Stipulation to avoid a Con-
tinuance. In all five cases the testimony cannot be offered in chief unless
the witness is personally unavailable. But there is a distinction between the
first two and the last three ; in the former the impeacher has had the benefit
of cross-examination, or an opportunity for it, for otherwise the testimony
would not be admissible {ipost, § 1371); while in the latter the impeacher
has had no such opportunity, the statements coming in as exceptions to the
Hearsay Eule or as Judicial Admissions. It must also be observed, as to the
first two, that, while at the moment in question the witness is unavailable,
yet at the time of taking the deposition or of the former trial the impeacher
may or may not have been aware of the alleged contradictory statement, —
a material circumstance in the problem. With these distinctions in mind,
the arguments affecting each class of cases may be examined.
§ 1031. Same: (1) Deposittons. The argument in favor of dispensing with
the preliminary question is that, as the impeacher usually cannot know pre-
cisely what answers the deponent will give, he cannot be prepared at the
otherwi.se sufficiently particularized) ; 1898, Va. : 1902, Gordon u. Funthouser, 100 Va.
State B. Welch, 33 id. 33, 54 Pac. 213 (ques- 675, 42 S. E. 677 (question naming time and
tion held specific enough) ; 1898, State v. Bart- person, but omitting place, held sufficient) ;
mess, lb. 110, 54 Pac. 167 ("persons" need not Wis.: 1900, Miller v. State, 106 Wis. 156, 81
be specified, in asking abont former testimony) ; N. W. 1020.
S. a. .-1881, State v. White, 15 S. C. 381, 390 The following nilings seem reasonable : 1876,
(the place of making the statement must be E. o. Mailloux, 16 N. Br. 498, 508, 511 (point-
mentioned) ; S. D. : 1896, State v. Hughes, 8 ing out that " he cannot be asked generally to
S. D. 338, 66 N. W. 1076 (not only time, place, relate a conversation with another person, in
and person, but also the specific statements ; order to enable the cross-examining counsel
obscure); Tenn. : 1851, Cheek v. Wheatly, 11 to discover" some variance); 1868, Callanan
Humph. 558 ("time and occasion"; "time, </. Shaw, 24 la, 454, Si*?»-a (similar),
place, and person ") ; 1873, Cole v. State, 6 Distinguish the question whether to the
Baxt. 239, 241 ("time, place, and person . . . otlier mtiiess, testifying to the self-contradiclim,
and also the words or their substance," with the question as to its tenor may be leadinn
other phrasings) ; Tex.: 1890, International & (ante, § 779).
G N E. Co. V. Dyer 76 Tex. 158, 13 S. W. i But even here, where the calling party has
377 (time, place, and person) ; Vt. : 1879, culpably dismissed the witness out of reach, the
States. Glynn, 51 Vt. 579 (particularity of rule may be dispensed with ; »os<, S 1036, note,
question is much m the Courts discretion) ;
1196
§§ 1017-1046] SELF-CONTRADICTION. § 1031
time of the deposition to inquire as to contradictory statements, and he will
therefore be. cut off absolutely and unconditionally from any sort of impeach-
ment by self-contradiction, unless the present rule be dispensed with :
1847, Davis, J., in Downer v. Dana, 19 Vt. 346 : " The rule thus applied [of the necessity
of calling attention] would impose on a party wishing the privilege of impeachment the
necessity of attending, in person or by counsel, at the taking of every deposition to be
used against him, within or without the State, which on any other account he might not
be disposed to do. Besides, in many cases the deponent may be wholly unknown to him ;
he may have no knowledge of the matter to be testified to until actually given ; the notice
of the taking may be bai'ely sufficient to enable him to reach the place perhaps hundreds
of miles distant, in season to be present. It would be idle under such circumstances to
expect a party to be prepared to go through with this preliminary ceremony. The result
would be, he would be least able to shield himself against partial or false testimony pre-
cisely when such protection is most needed. It is true, the deponent, being absent from
the trial, hears not the impeaching testimony and cannot be called upon to contradict or
explain it. This may be an evil, but it is unavoidable from the nature of the case. It
would be a worse evil to deny the right of impeaching depositions unless under regulations
which would reduce the right to a nullity."
1872, Agnevo, J., in Walden v. Finch, 70 Pa. 463: "The practice has arisen out of re-
gard to the witness himself, to enable him to explain any seeming discrepancy in his
statements. Yet it must necessarily have its just boundary, or otherwise it leads to the
sacrifice of the interests of the parties litigant. In some cases a Court would feel bound
to require the witness intended to be contradicted to be first examined and his attention
called to the supposed contradiction. Yet there are others where an unbending rule to
this effect would work great hardship. Thus, where, as in this case, the witnesses have
already been examined under a rule or a commission at a distant place preparatory to the
trial, it would often be difficult to foresee, sometimes impossible to foreknow, the ques-
tions to be put to the witness on cross-examination in order to lay ground to contradict
him. Indeed, in such cases unworthy witnesses might be purposely examined at a dis-
tance in order to prevent the ground from being laid. The names of the witnesses are
seldom given who are examined under mles within the State, and even when examined
under commissions the witnesses are not always named. It would be unjust to the party
in such a case to deprive him of the opportunity of contradicting unworthy witnesses. We
are therefore of opinion that those decisions of our own Court are to be preferred which
hold that the question is one of sound discretion in the judge trying the cause upon the
circumstances before him. Where the witnesses are all present, and the contradiction
tends seriously to impair the credibility of the witness or to reflect upon his character, a
Court would feel bound to give him the opportunity of explanation or denial before suf-
fering his testimony to be impeached by counter-statements. Under different circum-
stances a Court would feel it proper to relax the rule."
The answer offered to this argument is (1) that practically the opponent does
know beforehand, in the ordinary instance, what any important witness is
expected to testify to, and he is therefore sufficiently able to learn in advance
about self-contradictions, and (2) that, even conceding that an inconvenience
may occur, yet this is far outbalanced by the abuses which would be possible
if alleged self-contradictions could be brought into Court at a time when no
adequate opportunity remains for denial or contradiction :
1855, Daniel, J., in Unis v. Charlton's Adm'r, 12 Gratt. 495: "The principal reason
assigned by the learned judge who delivered the opinion of the Court [in Downer v.
Dana, supra] for refusing to apply the rule to depositions is that such a practice would
1197
§ 1031 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
impose on a party wishing the privilege of impeachment the necessity of attending
in person or by attorney at the taking of every deposition to be used against him,
within or without the State, which on any other account he might be disposed to do.
This argument ab inconvenienti is not wholly without show of reason when urged in be-
half of the exercise of the privilege of impeachment by a party who has had no notice of
the taking, or who, though notified, did not attend at the taking of a deposition which he
seeks to discredit, but seems to me devoid of weight when extended to the case of a party
who was present at the taking of the deposition, and had thus the same opportunity of
cross-examining the witness and calling his attention to the imputed inconsistent state-
ments that he would or might have had in case the witness had been examined in court.
. . . The rule proceeds from a sense of justice to the witness; . . . these reasons, it is
obvious, apply just as forcibly to depositions as to oral examinations in court. And in-
deed there are considerations which urge the application of the rule to the case of an
impeachment of a witness who has given his testimony in the form of a deposition, which
may not arise in an effort to discredit a witness who has been examined in court. In the
latter case the witness usually remains in or about the court till the trial is concluded ;
and if an assault is made upon him by proof of inconsistent statements, he might, even
before the adoption of the rule requiring him to be first examined as to such statements,
be recalled and re-examined by the party in whose favor he had testified; and he may
thus have an opportunity of repelling or explaining away the force of the assault ;
whereas the witness whose deposition has been taken is usually absent from the scene of
the trial, and has no shield against attacks on his veracity other than that provided by
the rule. . . . There are no peculiar considerations calling upon us to exempt this case
from the operation of the rule; for it appears from the deposition that the plaintiff's
counsel was not only present at the taking, but exercised on the occasion his privilege of
cross-examining the witness."
1864, Brinkerhoff, C. J., in Runyan v. Price, 15 Oh. St. 14: "It seems to me that a
reason, in addition to any that I have yet heard stated, may be found in favor of our con-
clusion in the following considerations. ' Dead men tell no tales ' ; and if the rule be once
established that the testimony of a deceased witness may be impeached by giving in evi-
dence declarations alleged to have been made by him out of court differing from those
contained in his testimony and when he has had no opportunity for explanation, when all
opportunity for explanation by him has passed away, when few will have the motive and
none the power to vindicate his integrity and truthfulness such as he would have if living,
it seems to me that temptations to perjury and subornation would be not a little increased
by the comparative impunity with which those crimes might be committed. Such declara-
tions at best are the lowest kind of evidence, and the administration of justice will suffer
little in any case by their exclusion ; while, if admitted and they are falsely alleged against
a dead witness, it would hardly be possible ever to disprove them."
It is hard to choose between these opposing considerations. The truth seems
to be that either rule, if inflexible, will occasionally work hardship. It is best
to take the middle path, and to leave the matter to the determination of the
trial Court, based on the needs of each case. But it is not to be wondered
at that the authorities are divided.^
"• 1847, Holman u. Bank, 12 Ala. 409 (Or- mode [deposition of a party answering interroga-
monJ, J., says " the rule by the very terms in tories] should not be entitled to the same ]iro-
which it is proposed apiilies to the oral examina- teetioii as if he had testified orally in the presence
tion of witnesses ; ... it eannot in the nature of the Court and jury " ; the self-contradiction of
of thing.s apply to such a case as this [cliancery the learned judge (commented on in Doe v.
depositions], because until the last dejiosition is Willcinson, infra) disappears when we observe
taken it cannot be known that there will be any that iu the Holman case he had before him a
discrepancy between them " ; while in Howell v. Chancery suit, in which presumably the deposi-
Reynolds, 12 id. 131, he had said " we can per- tions were kept secret and then all " published"
ceive no reason why a witness testifying in this at once, and of which his remarks therefore were
1198
■§§ 1017-1046]
SELF-CONTRADICTION.
1032
§ 1032. Same : (2) Testimony at a Former Trial. "Where the testimony
to be impeached is that given at a former trial by a person now unavailable,
the arguments for and against dispensing with the preliminary question are
in effect the same as in the case of a deposition, — except that there is less
reason for favoring the impeaching party, since he would have had a better
opportunity upon a trial than at a deposition to learn of the contradictory
statements. The precedents are few, but more harmonious in favoring the
requirement.^ It is not clear whether a given Court would necessarily
strictly trae ; so that his ruling in that case at
least was unimpeachable) ; 1860, Doe v. Wilkin-
son, 35 id. 470 (question indispensable ; repudi-
ating Holman v. Bank, sicpra) ; 1881, Griffith v.
State, 37 Ark. 330 (question indispensable) ;
1895, Ryan v. People, 21 Colo. 119, 40 Pac. 777
(question indispensable) ; 1830, Daggett v. Tol-
man, 8 Conn. 171, 177 (question dispensed with,
the deponent not having been cross-examined) ;
1849, Johnson v. Kinsey, 7 Ga. 430 question)
indispensable) ; 1849, Williams v. Chapman, 14
id. 470 (same) ; 1854, Wright v. Hicks, 15 id.
167 (same) ; 1901, Raleigh & 6. R. Co. v. Brad-
shaw, 113 id. 862, 39 S. E. 555 (excluded, even
for a contradictory utterance after the deposition
was taken) ; 1878, Greer a. Higgins, 20 Kan.
424 (the contradiction was in another deposition
taken two years before the other, in a related
action ; question held indispensable) ; 1858,
Fletcher v. Henley, 13 La. An. 192 (a second
commission was sent to call the attention of the
deponent to contradictions, but he could not be
found,; admitted in view of this "seasonable,
though fruitless effort ") ; 1898, State v. Wig-
gins, 50 id. 330, 23 So. 334 (question indispen-
sable) ; 1863, Matthews v. Dare, 20 Md. 269
(question indispensable) ; 1841, Able v. Shields,
7 Mo. 123, 124 (question indispensable) ; 1865,
Gregory v. Cheatham, 36 Mo. 161 (question
indispensable, even where the statement was sub-
sequent to the deposition) ; 1838, Davis v. Kim-
ball, 19 Wend. 441 (question held indispensable,
even where the contradiction was posterior in
time ; the reversal of the judgment in 25 Wend.
260 does not seem to have affected this point) ;
1856, Stacy v. Graham, 14 N. Y. 498 (deposition
de bene ; here inconsistent statements, as well as a
confession of the falsity of the deposition, were
offered ; the evidence being treated from both
points of view ; question held indispensable) ;
1864, Rnnyan v. Price, 15 Oh. St. 14 (question
indispensable) ; 1851, Hazard v. R. Co., 2 R. I.
62 (here the statute did not require notice and
opportunity to cross-examine for depositions
taken 100 miles distant; the Court said, "The
question is whether this is an inflexible rule. . . .
The defendant could not cross-examine the wit-
ness. ... If he has no right to show that the
witness has contradicted himself, he loses an
important right without any fault of his");
1879, Weir v. McGee, 25 Tex. Suppl. 20, 32
(question indispensable) ; 1840, McKinney v.
Neil, 1 McLean 547 (deposition ex parte; "it
was in the power of the defendant on reading
the deposition, to move for a continuance on the
ground that he wished to take the deposition of
the witness in regard to the statements, with a
view of afterwards contradicting him " ; question
held indispensable) ; 1863, Conrad v. Griffey,
16 How. 38, 45, 47 (question held'indispensable) ;
1889, Ayers v. Watson, 132 TJ. S. 394, 401, 10
Sup. 116 (there had been four jury-trials of the
case ; the testimony of one Johnson had been
twice taken by the defendants by deposition,
and the plaintiffs had cross-examined him on the
deposition ; before the fourth trial he died ; and
upon the fourth trial the plaintiffs offered, as
inconsistent with his former-trial deposition used
by the defendants, another deposition of his,
taken on a trial between other parties, many
years before any of the above four trials. The
Court do not definitely say that even where it is
impossible to call attention to the prior state-
ment, the omission to do so would be fatal, but
they declare it fatal in this case where Johnson's
deposition liad been twice taken, "and no refer-
ence made to his former deposition, nor any
attempt to call attention to it ") ; 1847, Downer
V. Dana, 19 Vt. 338, senible (iiuestion not always
necessary ; see quotation supra) ; 1898, Billings
V. Ins. Co., 70 Vt. 477, 41 Atl. 516 (deposi-
tion ; calling attention to inconsistent letter, not
necessary) ; 1855, Unis v.' Charlton's Adm'r, 12
Graft. 495 (see quotation supra).
1 1901, People v. Compton, 132 Cal. 484, 64
Pac. 849 (question indispensable) ; 1895, Sharp
V. Hicks, 94 Ga. 624, 21 S. E. 208 (question
indispensable) ; 1883, Craft D. Com., 81 Ky. 252
(question indispensable ; here the impeaching
evidence was a confession of the falsity of the
testimony) ; 1821, Tucker v. Welsh, 17 Mass.
164 (Parker, C. J. : " Suppose a witness who has
once testified should aftei-wards acknowledge the
falsity of his statements, and then die ; the party
interested in his testimony might upon another
trial prove what he had once said upon the stand
under oath ; and shall not the other party be
permitted to prove that what he said was a false-
hood?") ; 1865, Hubbard v. Briggs, 31 N. Y.
536 (question indispensable) ; 1892, McCullongh
V. Dobson, 133 id. 124, 30 N. E. 641 (question
indispensable, even where the contradiction is
posterior in time) ; 1894, Mattox v. U. S., 156
U. S. 237, 245, 15 Sup. 337, Shiras, Gray, and
White, JJ., diss, (declarations made after the
former trial ; question indispensable) ; 1897,
Carver v. U. S., 164 id. 694, 17 Sup. 228 (recog-
nizing the Mattox case obiter; question indis-
pensable).
1199
§ 1032 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
decide the question in the same way both for a deposition and for former
testimony.
§ 1033. Same : (3) Dying Declarations ; (4) Attesting Witness, and other
Hearsay "Witnesses. (3) When the testimony to be impeached is a dying decla-
ration, or other statement exceptionally admitted without the test of cross-
examination {post, § 1420), the situation of the impeacher is radically different.
(('.) In the first place, while for depositions and former testimony he has always
theoretically — and usually in practice — had at least one opportunity to ask
the preliminary question, yet here it is clear that he can never have had that
opportunity; so that if the argument of hardship is to avail in his favor,
there is here the extreme case of hardship. (6) Since by hypothesis the
statements admitted have not been subjected to cross-examination, the law
deprives the impeacher, if it insists on requiring the preliminary question, of
two of his most important weapons of defence, at one and the same time, —
cross-examination and prior self-contradictions. It has been apparent on all
hands that this would be pushing the rule too far; and almost all Courts
have agreed, therefore, that a self-contradiction may in this situation be
offered, although the preliminary question has of course not- been asked and
can never be :
1892, Grubh, J., in State v. Lodge, 9 Houst. 542, 33 Atl. 312: "The objection made
always is that the accused is deprived of the opportunity of calling the attention of the
person who supposed himself to be about to die to certain facts, which, if brought to his
attention, he might modify his statement or make none at all ; that there is no oppor-
tunity to test his judgment, the strength of his recollection, or his bias. But the law
says that it insures justice in the greater number of cases, and that it is necessary to let
it iu, although it does deprive the defendant of testing the memory of the witness and
his truthfulness by cross-fexamination. Then it is as though it says : ' Very well, if you
are deprived of that opportunity of ascertaining if that witness was wrong, and of bringing
any witness to contradict him, when we let in the dying declarations, without an oath,
you ought to have the right to put in testimony of previous declarations, without laying
the ground.' . . . Therefore, as dying declarations are admitted on the ground of neces-
sity, ought not proof of contradictory or inconsistent statements by the deceased to be
also admitted on the same ground ? " ^
(4) Attesting Witness, and other Hearsay Witnesses. The production of
an attested document, the attesting witness being unavailable, and the proof
of his handwriting, in effect admits the hearsay attestation of the witness
^ Accord: 1848, Moore v. State, 12 Ala. 764, there the benefit of cross-examination has been
767 (point not raised) ; 1863, People c;. Law- had ; Brewer and Peekham, JJ., dissenting),
rence, 21 Cal. 368, 371; 1901, People ». Amaya, Contra: 1901, Hamilton v. Smith, 74 Conn.
134 id. 531, 66 Pae. 794 ; 1884, Battle v. State, 374, 50 Atl. 884 (declarations of J., deceased,
74 Ga. 101, 104 ; 1898, Dunn v. People, 172 IU. not admitted to contradict other declarations of
582, 50 N. E. 137; 1900, Green v. State, 154 his already admitted under the Hearsay excep-
Ind. 655, 57 N. E. 637 ; 1850, Nelms v. State, tion for boundary-statements ; but the exclusion
13 Sm. & M. 505 ; 1893, State v. Shaffer, 23 is placed on the principle of post litem motam,
Or. 555, 560, 32 Pac. 545 ; 1836, M'Phei-son which however does not and was never before
V. State, 9 Yerg. 279 (point not raised) ; supposed to have anv application to impeaching
1891, Morelock v. State, 90 Tenn. 528, 18 statement.'!); 1870, "W roe v. State 20 Oh St
S. W. 258 ; 1897, Carver i'. U. S., 164 U. S. 469 ; 1900, State v. Taylor, 56 S. C. 360 34
694, 17 Sup. 228 (distinguishing the case of S. E. 939 ; State v. Stuckey, ib. 576, 35 S. E.
a contradiction of former testimony, because 263.
1200
§§ 1017-1046] SELF-CONTRADICTION. ^§ 1034
that the document was properly executed (post, § 1505). This being so, the
foregoing principle ought to apply, and a self-contradictory statement ought
to be allowed to be shown, in spite of the fact that the preliminary question
has not been and cannot be asked. This was the original English practice,^
although the rulings hardly avail as precedents, since the requirement of a
preliminary question dates only from 1820 ; but the practice is theoretically
and upon policy correct, and has been approved in this country :
1848, Gibson, C. J., in Hays v. Harden, 9 Pa. St. 158: "I admit that there is force in
this view of the case, and that sucli testimony calls for vigilance and strict scrutiny. But
I cannot agree that this is a reason for the exclusion of such testimony altogether, thereby
in many cases destroying the possibility of exposing fraud, forgery, and villainy of every
description, so apt to be practised on persons of weak understandings, particularly when
debilitated by sickness and disease. It is better that we should incur the risk mentioned
than that we should sanction fraud and imposition. The remarks of Baron Parke [in Sto-
bart V. Dryden] show a distrust of Courts and juries, and if pushed to an excess would be
an argument against all testimony whatever, which we all know has been and will con-
tinue to be abused ; but that would be a flimsy reason for excluding it altogether. ...
It is not difficult to see how easy it would be to spirit away a subscribing witness on the
eve of trial, prove his handwriting, thereby giving full effect to his testimony, and then
excluding all testimony of his repeated declarations that the bond or will was a forgery
or a conspiracy to cheat or defraud. Establish this doctrine, and we shall not be without
instances of attempts to baffle justice by removing the witness and thereby preventing
the introduction of proof which the guilty know would destroy their claim."'
But this sound doctrine was later repudiated in England.*
Wherever any other statements are admitted, by exception to the Hearsay
rule — for example, statements of facts against interest — , the same princi-
ple is applicable, and the requirement of prior asking should be dispensed
with.
§ 1034. Same: (5) Proposed Testimony admitted by Stipulation to avoid
a Continuance. Where by consent of the opponent, given in order to avoid
a continuance, the proposed testimony of an absent witness is received, in the
form of the party's affidavit of the tenor of the expected testimony (post,
§ 2595), it would seem that the rule of prior asking should be dispensed with,
* 1761, Wright «. Littler, 3 Burr. 1244, 1255, (that the witness "had frequently said, and
Lord Mansfield, C. J. (alleged confession of for- even made affidavit, that the deed had been
gery by the witness) ; 1808, Durham v. Beau- antedated in order to protect the property,"
mont, 1 Camp. 210, Ellenborough, L. C. J., admitted) ; 1846, Smith v. Asbell, 2 Strobh.
mentioning a ruling of Heath, J. ("This con- 141, 145 (attesting witness out of State and
fession [of the forgery of the will] only supplied examined by commission ; self-contradiction ra-
the place of what might have been obtained from ceived without prior asking ; point not raised),
cross-examination. Bad the witness survived; Left undeeided ; 1878, Bott v. Wood, 56 Miss,
and the propriety of admitting it was never 136, 139 ; 1890, Hesdra's Will, 119 N. Y. 615,
questioned"); 1820, Doe v. Ridgway, 4 B. & 616 23 N. E. 555.
Aid. 53, 55, per Bayley, J. (declarations as to a * 1836, Stobart v. Dryden, 1 M. & W. 615
forgery of the instrument, admissible, because (declarations of a deceased attesting witness M.,
their benefit could have been had if he were whose handwriting had been proved, were oHered
alive). as amounting to an acknowledgment of forgery ;
' Accord: 1842, Losee ». Losee, 2 Johns, excluded, in an opinion whose fallacies are too
609, note by N. Hill, afterwards judge; 1855, radical to be worth refuting). Accord: 1864,
Reformed Church v. Ten Eyck, 25 N. J. L. 40, Eunyan v. Price, 15 Oh. St. 6 (contradictory
47; 1860, Boylan v. Meeker, 28 id. 274,294; declarations of a deceased attesting witness
1848, Harden v. Hays, 9 Pa. 151, 155 (quoted whose deposition had been used).
supra) ; 1831, M'Elwee v. Sutton, 2 Bail. 129
1201
§ 1034
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
becau.se here, as in the foregoing hearsay statements, there has heen no op-
portunity for testing the witness by cross-examination.' Where, however
(as by some statutes), the opponent is obliged to admit (as a condition of
avoiding the continuance) that the proposed testimony is true, the self-con-
tradiction would be excluded because all modes of impeachment are im-
plicitly foregone by him.^
§ 1035. Self-Contradiotion contained in other Sworn Testimony; is the
Preliminary Question here necessary? Where the contradictory statement
that is to be used is contained in a deposition or other sworn statement
made at a prior time by the witness himself, it has been often argued,
and sometimes decided, that the preliminary question is here unnecessary,
because its authenticity cannot be denied by the witness and he needs no
preparation for disproving it.' This argument, however, loses sight of the
double purpose of the preliminary question, i. e. not merely to allow prepara-
tion for disproof, but to allow an opportunity for explanations if the state-
ment is admitted genuine. There is still just as much need for this
opportunity to explain, whether the statement was made in a deposition or
not. The doctrine has usually been repudiated.^
§ 1036. Recall for putting the Question ; Showing a "Writing to the 'Wit-
ness. (1) Where the impeacher is in danger of losing the use of his evidence
by not having asked the preliminary question on cross-examination, the
1 Contra: 1857, Pool v. Devens, 30 Ala.
676 ; 1900, Gatford v. State, 125 id. 1, 28 So.
406 ; 1867, State v. Shannehan, 22 la. 437 ;
1870, Williamson v. People, 29 id. 458 ; 1902,
State V. Guy, 107 La. 573, 31 So. 1012 ; 1885,
Fulton V. Hughes, 63 Miss. 61, 66 ; 1894, State
V. Carter, 8 Wash. 272, 276, 36 Pac. 29. Ac-
cord: 1902, Hutmaeher v. R. G. & E. Co., 63
S. C. 123, 40 S. E. 1029.
> 1881, Khea v. Deaver, 85 N. C. 337, 339.
1 Colo. : 1888, Thompson v. Gregor, 11 Colo.
633, 19 Pac. 46i (deposition ; here the wrong
reason is given that the answer might incrimi-
nate by involving perjury) ; Del. : 1838, Rash
<^. Purnel, 2 Han-ingt. 448, 456 (former testi-
mony at a probate issue, admitted ; no asking
mentioned) ; Ga. : 1849, Williams v. Chapman,
7 Ga. 469 (question not required for a deposi-
tion in {be same cause ; the Court also denied
the necessity of asking in any case where the
supposed self-contradiction was made under oath
or even in writing ; this theory, however, is in-
consistent with Stamper v. Walker, 12 id. 454
(1853), and is not heard of again) ; 1853, Bryan
V. Walton, 14 id. 196 (question not required for
deposition in the same cause) ; 1860, Molyneaux
V. Collier, 30 id. 745 (same) ; 1886, Klug ».
State, 77 id. 736 (question not required for the
defendant's own te.stimony before a magistrate) ;
Code 1895, § 5292 (asking required, " unless
they are written statements made under oath in
connection with some judicial proceedings");
1890, Georgia R. & B. Co. v. Smith, 85 Ga.
530, 11 S. E. 859 (rule of asking applies to
former testimony reported in a brief of evidence
not read over or assented to by him) ; Kt. :
1202
1859, Robinson v. Hutchinson, 31 Vt. 449
(question not required for a deposition).
« Ala.: 1851, Powell v. State, 19 Ala. 581 ;
1860, Doe V. Wilkinson, 35 id. 471 ; 1863,
Bradford v. Bai'clay, 39 id. 37 ; these three
cases, repudiating Holm an ». Bank, 12 id. 408
(1847), per Orniond, J., hold that the question
is necessary even where the contradiction is in a
deposition ; but in the later cases (1842, Hester
V. Lumpkin, 4 id. 512, seinble; 1846, Carville v.
Stout, 10 id. 802, semble; 1860, Doe v. Wilkin-
son, 35 id. 471) an exception is made for a depo-
sition taken in the same suit and one of several,
for here it is in eifect merely part of the same
oral examination ; Cal, : 1872, People v. Devine,
44 Cal. 458 (question required for deposition
before a magistrate in the same case) ; 1903,
People V. Witty, 138 id. 576, 72 Pac. 177
(affidavit acknowledging the inconectness of
his deposition ; asking required) ; la. : 1862,
Samuels v. Griffith, 13 la. 106 (question re-
quired, even for deposition in the same case) ;
1865, State o. Ostrander, 18 id. 456 (question
required for former testimony before a grand
jury) ; 1867, State u. Shannehan, 22 id. 437
(question required for a deposition) ; 1871, State
V. Collins, 32 id. 41 (same as Samuels ». Grif-
fith) ; La. : 1850, Fletcher v. Fletcher, 5 La. An.
408 (deposition) ; Minn. : 1890, Hammond u.
Dike, 42 Minn. 27, 44 N. W. 61 (ciuestion re-
quired for a deposition) ; Ifebr. : 1892, Hanscom
V. Burmood, 35 Ne.br. 504, 506, 53 N. W. 371
(question required for former testimonv) ; Tenn. .
1852, Nelson v. State, 2 Swan 237, 259 (before
a committing magistrate ; asking i-equired) ;
1874, Titus V. State, 7 Baxt. 132, 137 (same).
§§ 1017-1046] SELF-CONTRADICTION. § 1037
witness may of course be recalled in order to he asked ; but this recall, like
all others (post, §§ 1867, 1899) is in the discretion of the trial Court,^ — a
discretion which will usually permit the recall where there has been nothing
distinctly culpable on the part of the impeacher.
(2) Where the contradiction is contained in a writing by the witness, the
writing is required, by the rule in The Queen's Case to be shown to the wit-
ness before he can be asked whether he uttered the statement contained
therein. This rule, unsound both on principle and in policy, purports to
rest upon the principle that documentary originals must be produced. It
can therefore best be examined under that head (post, § 1259).
§ 1037. Contradiction Admissible, no matter what the Answer to the Pre-
liminary Question. A notion that for a time obtained with some English
judges before the principle of Self-Contradiction was thoroughly differen-
tiated, and a notion not uncommon to-day at our Bar, is that the witness'
answer to the preliminary question is the testimonial statement against
which the impeaching contradictory statement is to be set off as inconsist-
ent. Two fallacies, now generally discredited by the Courts, have cropped
out as the result of this underlying notion.
One fallacy is that if the witness, when asked whether he did not say such
and-such a thing to the contrary, does not respond by some assertion —
either by failing to remember or by otherwise evading the question — , then
the contrary statement cannot be offered, because there is no assertion to
contradict.^ In truth, however, his answer to the preliminary question is
wholly immaterial. He has already made on the stand an assertion A ; we
wish to show that he has elsewhere made the opposite assertion A' ; and,
before introducing the latter we must ask him whether he made it; this
preliminary question is simply to give warning and lay the foundation re-
quired by the rule ; the coutradiction already exists (if at all) between the
assertions A and A', and thus his answer to the preliminary question is of
no consequence as forming a contradiction. It is the question alone that is
essential ; if the warning has been given, that is all that the law is concerned
with :
"■ 1841, State v. Jlarler, 2 Ala. 46 ; 1874, requiring asking may then properly be deemed
Hall V. State, 51 id. 9, 14 (but not discretion- dispensed with, on the theory of waiver: 1820,
aiy where the cross-examination has b^en sus- Queen Caroline's Trial, Linn's ed.. Ill, 112,
pended by consent); 1883, Bell v. State, 74 id. 119, 159 (a witness for the prosecution, not
420 ; 1890, Richmond & D. R. Co. v. Vance, 93 asked on cross-examination about a prior state-
id. 144, 147, 9 So. 574; 1875, People ». Keith, raent, bnt at the end of his exandnation sent
50 Cal. 137, 139 ; 1896, People v. Shaw, 111 id. abroad by the prosecution ; prior statement al-
171, 43 Pac. 593 ; 1903, Bryan ». State, — Fla. lowed to be proved, the recall for asking being
— , 34 So. 243 ; 1859, State v. Ruhl, 8 la. 447, made impossible by the prosecution's act).
450 ; 1896, State v. Goodbier, 48 La. An. 770, 19 Whether an accused taking the stand volun-
So. 755; 1904, State u. Brown, 111 La. — ,35So. tarily may be thus recalled may involve a
818 ; 1900, Cooper v. Hayward, 79 Minn. 23, question of the waiver of the privilege against
81 N. W. 514 (here the witness was recalled to self-crimination {post, § 2276).
cure an insufficient inquiry already made) ; 1886, ^ 1830, Tindal, C. J., in Pain ». Beeston, 1
State V. Reed, 89 Mo. 171, 1 S. W. 226 ; 1853, M. & Rob. 20 ; 1840, Abinger, L. C. B., in Long
Com. V. Hart, 21 Pa. 495, 502 ; 1899, Ashton v. v. Hitchcock, 9 C. & P. 619 (" They cannot call
Ashton, 11 S. D. 610, 79 N. W. 1001. If the one man to contradict another unless that other
recall has been made impossible by the act of swears positively "),
the party first producing the witness, the rule
1203
§ 1037
TESTIMONIAL IMPEACHMENT.
[Chap. XXXTY
1889, Hemmingway, J., in Billings v. State, 52 Ark. 303, 12 S. W. 574: "[The cross-
examination] is required in order that he may explain apparent contradictions and rec-
oncile seeming conflicts and inconsistencies. If he cannot remember the fact, he is
unable to do what the law affords him an opportunity to do. . . . The testimony is dis-
credited because be affirms to-day what he denied yesterday ; the legitimate efiect of such
contradiction cannot depend upon his power to remember it."
It follows that the mere failure of the witness to recollect, when asked the
preliminary question, whether he made the other statement, does prevent
the impeacher from offering it;^ nor, for the same reason, does it matter
whether in any other way his answer lacks in positiveness.'
Even where the witness admits having made the other statement, this does
not prevent the opponent from offering it in evidence by his own witnesses;*
for he may prefer to have it clearly brought out and emphasized, and it would
be unfair to restrict him to the nnemphatic mode of proving it by the witness'
admission and to subject him to the necessity of disputing whether the ad-
mission has been full and exact. The purpose of the question is not to prove
the statement, but merely to warn that it will be proved; and there is no
reason why an admission on the stand should here cut o£f the right to make
* Besides the following authorities, the stat-
utes cited ante, § 1028, usually declare the rule :
1837, Parke, B., iu Crowley v. Page, 7 C. & P.
789, whose ruling was accepted in subsequent
practice ("If the rule were not so, you could
never contradict a witness who said he could
not remember") ; 1877, Payne v. State, 60 Ala.
88 ; 1897, Southern R. Co. v. Williams, 113 id.
620, 21 So. 328 ; 1899, Hensou v. State, 120
id. 316, 25 So. 23 ; 1889, Billings v. State, 52
Ark. 303, 12 S. W. 574 ; Fla. Eev. St. 1892,
§ 1102 (if the witness "does not distinctly ad-
rait that he has made such statement," it may
he proved) ; 1846, Sealy v. State, 1 Kelly 218 ;
1860, Ray v. Bell, 24 111. 451 ; Ind. Eev. St.
1897. § 521 ; 1897, State v. Clark, 100 la. 47,
69 N. W. 257 ; 1868, Lewis v. State, 4 Kan.
309 ; 1895, State v. Johnson, 47 La. An. 1225,
17 So. 789 ; 1852, Smith v. People, 2 Mich.
415 : 1892, Pickard v. Bryant, 92 id. 433, 52
N. W. 788; 1897, Pringle o. Miller, 111 id.
663, 70 N. W. 345 ; 1877, Peck v. Ritchey, 66
Mo. 119 ; 1860, Nute v. Nute, 41 N. H. 67 ;
1863, Sanderson v. Nashua, 44 id. 494 ; N. M.
Comp. L. 1897, § 3024 (" If a witness . . . does
not distinctly admit that he did make such state-
ment, proof may be given that he did in fact
make it ") ; 1902, State v. Deal, 41 Or. 437, 70
Pac. 532 ; 1867, Gregg v. Jamison, 55 Pa, 471 ;
1896, State v. Kelley, 46 S. C. 56, 24 S. E. 60 ;
1873, Cole V. State, 6 Baxt. 240 ; 1860, Weir v.
McGee, 25 Tex. Suppl. 25, 32 ; 1879, Johnson
V. Brown, 51 Tex. 65, 75 ; 1864, Forde's Case,
16 Gratt. 558 ; Va. St. 1899-1900, o. 117, § 2
(if the witness "does not distinctly admit that
he has made such statement, proof may be given
that he did in fact make it "). Suppose, how-
ever, that in the original assertion A (not in
answer to the preliminary question) the witness
is unable to recollect the details of an occur-
rence, then may a former assertion, giving the
details in full, be offered as a Self-Contradiction 1
This is a question of what constitutes a Self-
Contradiction, and is treated post, § 1042. The
difference between that case and the present one
is that here the witness merely cannot recollect
whether he made the other assertion A' as to
the occurrence ; while there the witness does
not recollect the occurrence at all, and the
question is whether there is any assertimi A to
be set off against assei'tion A'.
' 1902, Sheldon v. Bigelow, 118 la. 586, 92
N. W. 701 (evasion) ; 1902, State v. Haworth,
20 Utah 398, 68 Pac. 155 (refusal). Contra: 1903,
People V. Glaze, 139 Cal. 154, 72 Pac. 965 (the
question being asked and on objection an an-
swer being forbidden by the Court, it was held
that the foundation was not sufficient for sub-
sequent testimony ; this is erroneous).
* 1840, Lewis v. Post, 1 Ala. 69 ; 1898,
Singleton v. State, 39 Fla. 520, 22 So. 876,
se7a6/e (with doubt); 1843, Hathaway o. Crocker,
7 Mete. 264 ; 1882, Markel v. Moudy, 13 Nebr.
322, 14 N. W. 409 ; 1895, Fremont B. & E. Co.
V. Peters, 45 id. 356, 63 N. W. 791 (allowing
the contradiction to be introduced immedi-
ately). However, many Courts have unwisely
conceded that an admission by the witness does
exclude further proof by the opponent : 1837,
Parke, B., in Crowley v. Page, 7 C. & P. 789 ;
1860, Ray v. Bell, 24 111. 451 ; 1893, Atchison
T. & S. F. R. Co. V. Feehau, 149 id. 202, 214,
36 N. E. 1036 ; 1897, Swift v. Madden, 165 id.
41, 45 N. E. 979 ; 1896, State v. Goodbier, 48
La. An. 770, 19 So. 755 ; 1884, State v. Cooper,
83 Mo. 698 ; 1903, Barnard v. State, — Tex.
Cr. App. — , 73 S. W. 957 ; and the statutes
cited ante, § 1028, and supra, note 2 also
imply this.
1204
§§ 1017-1046] SELF-CONTRADICTION. § 1038
such proof, for it does not ordinarily in other respects {jpost, § 1058) have
such an operation.
§ 1038. Assertion to be Contradicted must be Independent of the Answer
to the Preliminary Question. The other consequence of the loose notion
above mentioned is a confusion of the assertion A, which is to be contradicted
-r- this may be called the primary assertion — with the answer to the pre-
liminary question. Counsel sometimes attempt to contradict the latter in-
stead of the primary assertion, forgetting that there must be some primary
assertion independent of the answer to the preliminary question.^ Thus, sup-
pose the witness is asked (on cross-examination, perhaps) : " Did the assailant
have a wart on his face ? " and answers " No " ; this is his primary assertion
A ; he is then asked the warning question, " Have you not said to X at such
a time and place that the assailant did have a wart on his face ? " and an-
swers " No " ; the opponent then proves that the witness has asserted that
there was a v?art ; this is the contradictory assertion A'. Now the contradic-
tion lies between the assertions A and A' ; he now says that there was no
wart ; he formerly said that there was one ; the contradiction is clear and
material. But suppose that the primary question above was omitted, and
only the preliminary or warning question asked ; the result is that an error
appears {i. e. he now says that he did not make « certain remark, while others
prove that he did make it). But this is an ordinary contradiction (ante,
§ 1000) and not a self-contradiction ; moreover, it is upon a wholly collateral
point, for the fact of his formerly making a remark about the wart is wholly
immaterial, and the Only thing that is material is the existence of the wart,
and upon this point he has as yet on the stand made no assertion at all which
could serve as the basis of a self-contradiction. The extrinsic testimony of
his former remark is therefore inadmissible, because it involves no self-con-
tradiction, and is merely on a collateral point in any case :
1896, Whitfield, J., in Williams v. State, 73 Miss. 820, 19 So. 826 : "Could the State,
as a part of its case, have proven that Margai-et Kelly said to Elsie Ross, ' I sent you word
there was a plot to kill your husband, made three weeks ago,' by defendant and his
brother ? Clearly not. It was competent to prove there was a plot. It was competent to
prove it by the acts or declarations of the defendant. It was competent to prove that Mar-
garet Kelly heard the defendant's declarations evidencing the plots. And, had she been
asked as to these matters, and denied, she could have been impeached by showing that
she had elsewhere stated that she did hear defendant make such declarations. But to
permit her to be contradicted by a statement that she had said to Elsie Ross that she had
sent her word that there was a plot, etc., is in no possible view proper. The exact test here
is. What was the fact embodied in her unsworn statement ? This : That she had sent
Elsie Ross word that there was a plot, etc. ; had said to her that there was a plot, etc.
Was this fact — her mere statement to Elsie Ross that there was a plot, etc. ^- a substan-
tive fact, relevant to the guilt or innocence of this defendant, which the State could have
proved as a part of its case in chief ? Most certainly not." ^
1 The fallacy above described was committed 292 ("Did you not state so-and-so?", put on
by Totten, J., in Cheek v. Wheatly, 11 Humph, cross-examination, the direct examination not
558(18.51). having touched the subject; excluded); 1859,
' Accord: 1898, Naugher v. State, 116 Ala. Combs v. Winchester, 39 N. H. 18 (the witness
463, 23 So. 26 ; 1863, Bonn a. Dunn, 11 Mich, was asked on cross-examination whether he had
1205
§ 1039 TESTIMONIAL IMPEACHMENT. [Chap. XXXIV
§ 1039. Preliminary Question not necessary for Expressions of Bias, for a
Party's Admissions, or for an Accused's Confessions ; Impeaching one's O'wn
Witness. (1) The rule requiring a preliminary warning does not on principle
apply to proof of expressions of bias, although many Courts so extend it.^
(2) The rule applies only to the discrediting of a witness, and not to the
use of a party's admissions, whether or not he is also a witness.*
(3) For the same reason the rule does not apply to an accused's confessions.^
(4) But it does apply to the impeachment of one's own witness, and not
merely of the opponent's.*
4. What Amounts to a Self-Contradiction.
§ 1040. Tenor and Form of the Inconsistent Statement (tTtterances under
Oath, Admissions and Confessions, Joint Writings, Inconsistent Behavior).
(1) In the present mode of impeachment, there must of course be a real in-
consistency between the two assertions of the witness. The purpose is to
induce the tribunal to discard the one statement because the witness has also
made another statement which cannot at the same time be true {ante, § 1017).
Thus, it is not a mere difference of statement that suffices ; nor yet is an ab-
solute oppositeness essential ; it is an inconsistency that is required. Such
is the possible variety of statement that it is often difficult to determine
whether this inconsistency exists. But it must appear prima facie before
the impeaching declaration can be intrpduced. As a general principle, it is
to be understood that this inconsistency is to be determined, not by individ-
ual words or phrases alone, but by the whole impression or effect of what has
been said or done. On a comparison of the two utterances, are they in effect
not said that he knew the carriage-bolt had no eral, matter ; and many material assertions may
nut on it ; whether or not it had was material, first come out on cross-examination : 1884, Sel-
hut the witness had not touched the subject on lers v. Jenkins, 97 Ind. 430, 437 ; and 'cases
direct examination ; his negative answer was cited ante, § 1020. It must be added that oeca-
not allowed to be contradicted); 1854, Bearss v. sionally the answer to the preliminary question
Copley, 10 N. Y. 93 (plea of negligent work to may be material, i. e. when the witness denies
an action for wrongful discharge from employ, that he made a certain remark, this remark in
nient ; plaintiffs witness had not testified as to itself, may be independently material, and there-
incompetency, but was asked on cross-examina- fore its utterance may be shown. But this is
tion whether he had not formerly stated that rare, and in any case does not constitute a Self-
plamtiff was negligent ; excluded, because no Contradiction ; it is merely the ordinary case of
contradiction was involved, and what he for- proving against the witness an error of fact on »
nierly said was otherwise immaterial); 1898, material point. Thus, in proving former ex-
?o";;l \r^^^' f '^''''- ^r- "*• ■'*' S. W. 408 ; pressions of Bias, which the witness's now denies
}lla' fr^^"^ "; ^**'^;.„~."*- — . *6 S. W. 812 ; having made, it is simply a case of proving a
1898, Hoy v. State, 39 id. .340, 45 S. W. 916. material fact, the fact of such expressions being
The Courts are perfectly clear on this point, otherwise admissible ; hence it is not necessary
The only error of which any traces appear is the to turn it into a case of Self-Contradiction by
supposition that the witness must have made his insisting that he should somewhere in the course
primary assertion upon the direct examination, of his testimony have assei-ted that he was not
and that unless he has there touched upou the biassed,
subject the contradictory statement is not ad- >• Cases cited ante, § 953.
missible. But this is not necessary. It is pos- » Cases cited posi!,' § 1051
sible (though not usual), as in the illustration s For the question whether an inadmissibh
above used m the text, that the assertion to be confession may be used as a self-contradiction,
contradicted may have been brought out on see ante, § 816.
cross-examination ; the only essential is that it * Cases cited ante, § 906.
should have dealt with a material, not a coUat-
1206
§§ 1017-1046]
SELF-CONTRADICTION.
1040
inconsistent? Do the two expressions appear to have been produced by
inconsistent beliefs ?
1858, Clifford, J., in U. S. v. Holmes, 1 Cliff. 116: « Directness, in the technical sense,
is not necessary to give the evidence that character, nor is it necessary that the contradic-
tion should be complete and entire, in order to admit the opposing testimony. Circum-
stances may be offered to rebut the most positive statement, and it is only necessary that
the testimony offered should have a tendency to explain, repel, counteract, or disprove the
opposite statement in order to render it admissible."
1888, C. Allen, J., in Foster v. Worthing, 146 Mass. 607, 16 N. E. 572 : " It is not neces-
sary, in order to make the letter competent, that there should be a contradiction in plain
terms. It is enough if the letter, taken as a whole, either by what it says or by what it
omits to say, affords some presumption that the fact was different from his testimony;
and in determining this question, much must be left to the discretion of the presiding
judge."!
In most rulings, the circumstances of the cases are individual, and they have
no value as precedents.^ •
(2) The form of the supposed contradictory assertion is immaterial. It
may be oral or written ; it may be an ordinary letter, or it may be a sworn
statement, as, for example, a deposition.^
1896, Swift V. Withers, 63 id. 17, 65 N. W.
85 ; 1852, Martin v. Farnham, 25 N. H. 195 ;
1860, Nute. V. Nute, 41 id. 67 ; 1855, Patchiu
V. Ins. Co., 13 N. Y. 270 ; 1878, Furst v. R. Co.,
72 id. 545 ; 1836, Radfoid v. Rice, 2 Dev. & B.
43; 1826, Lamb ». Stewart, 2 Oh. 230, (377) ;
1822, Stable v. Spolm, 8 S. & R. 323 ; 1862,
Travis v. Brown, 43 Pa. 18 (admitting wheve
doubtful); 1874, Schlater v. "WiDpenny, 75 id.
325 ; 1859, Hallw Simmons, 24 Tex. 227 ; 1816,
Evans v. Eaton, Pet. C. C. 388.
* There is no conceivable reason to the con-
trary, and it is bard to see why this point should
have had to be decided so often ; for additional
instances of the use of sworn statements, see the
succeeding notes (but distinguish the question
ante, § 1034, whether here the preliminary warn-
ing is necessary) ; 1820, R. v. Hunt, 1 State Tr.
N. S. 171, 250 (whether he gave the same evi-
dence before the Ministry as he gave at the trial ;
allowed on cross-examination); 1872, People r.
Devine, 44 Cal. 458 (deposition) ; 1889, People v.
Bushton, 80 id. 160, 161, 22 Pac. 127, 649 (dep-
osition) ; 1892, Lewis v. State, 91 Ga. 168, 170,
16 S. E. 986 (defendant's unsworn statement on
former trial) ; 1869, R. v. Apuna, 3 Haw. 166,
170 (i)rior sworn statement in writing, ad-
mitted); 1894, Southern K. R. Co. v. Painter,
53 Kan. 414, 418, 36 Pac 731 (though the dep^-^...
osition is not filed nor admissible) ; 1895, Peo'-
ple V. Kennedy, 105 Mich. 434, 63 N. W. 405
(preliminary deposition) ; 1888, State v. Jones,
29 S. C. 201, 228, 7 S. E. 296 (affidavit ; testi-
mony at an inquest); 1890, Chicago M. & St.
P. R. Co. u. Artery, 137 U. S. 519, 11 Sup. 129
(here the railroad company had sent its claim
agent, after the injury to certain employees, to
examine the others present at the time, and bad
secured written statements ; one of these was
shown to and acknowledged by one of these
employees who took the stand for the plaintiifs,
1 The following cases illustrate the variety
of circumstances: 1861, Jackson v. Thomason,
1 B. & S. 745 (several letters, taken together,
amounting to a contradiction, though singly
insufficient ; admitted) ; 1888, Miller v. White,
16 Can. Sup. 445, 452 (books of another firm,
kept under the witness' direction, admitted) ;
1884, Sellers!). Jenkins, 97 Ind. 439 (the amount
or degree of inconsistency is immaterial) ; 1868,
Brigham v. Clark, 100 Mass. 431 (testimony
that " L. C. C. & Co." was used as a firm name,
contradicted by documents so signed for private
debts ; admitted) ; 1871, Hook v. George, 108 id.
327, 330 ("in their sjiirit and general purport
the letters were in conflict;" admitted); 1886,
Hosmer v. Groat, 143 id. 16, 8 N. E. 431 (the
defendant having denied that L. was his agent,
letters declaring him to be so were admitted,
although not addressed to the plaintiff) ; 1869,
Tinklepaugh v. Rounds, 24 Minn. 300 (inconsist-
ency "in any material particular" is enough) ;
1848, Weatherhead v. Sewell, 9 Humph. 272,
283 (the declarations of an attesting witness that
the will did not follow the draft-instructions,
not received to contradict his attestation in
the Probate Court, which could only have in-
volved testimony that the documeut was signed
or acknowledged).
2 1861, People ». Williams, 18 Cal. 190, 193 ;
1898, People v. CoUum, 122 id. 186, 54 Pac. 589 ;
1822, Treat v. Browning, 4 Conn. 410, 418 ;
1892, U. S. o. Cross, 20 D. C. 390 ; 1897, Har-
rison V. Langston, 100 G:i. 394, 28 S. C. 162 ;
1860, Thompson v. State, 15 Ind. 473 ; 1880,
Case V. Burrows, 64 la. 682, 7 N. W. 130 (where
it was doubtful where the cattle referred to were
the same ones); 1878, Kennedy v. Com., 14
Bush 357 ; 1880, Munshower v. State, 55 Md.
19 ; 1863, Hamilton W. Co. ;;. Goodrich, 6 All.
197 ; 1871, Snow v. Moore, 107 Mass. 612 ; 1890,
Bennett v. Ins. Co., 43 Minn. 48, 44 N, W. 794 ;
1207
1040
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
(3) The contradictory utterance may be a party's admissions, and are usable
in either character.* Whether the confessions of an accused, when inadmis-
sible as such, may be used against him on the stand as self-contradictions,
has been a matter of controversy.^ But a witness' confessions of perjury
ought undoubtedly to be received, under the present principle.*
(4) The utterance may be in the form of a joint statement by the witness,
signing a document with other persons.'^ If the statements did not accurately
represent his own belief, he may absolve himself by explanation (post,
§ 1044).
(5) The inconsistency may be found expressed, not in words, but in conduct
indicating a different belief.^
This sort of evidence is sought frequently to be used against value-witnesses
and is perhaps not sufficiently favored by the Courts.^
§ 1041. Opinion, as Inconsistent. A common difficulty is to determine
whether some broad assertion, offered in contradiction, really assumes or
implies anything specifically inconsistent with the primary assertion.^ The
and was inconsistent with his testimony ; held
improperly excluded by the Court below) ; 1861,
Thayer v. Gallup, 13 Wis. 541 (even one not
used because of the witness' personal attend-
ance). In Pittsburg & C. R. Co. v. Andrews,
39 Md. 354 (1873), the impeaching witness was
examined on a foreign commission, and by a
majority opinion the impeaching testimony was
declared admissible ; why there should have been
any doubt about it does not appear.
* Cases cited post, § 1051.
' Cases cited ante, § 816.
^ Gases cited aide, § 959.
' 1839, Attorney-General ». Bond, 9 C. & P.
189 (a joint affidavit, only the part by the wit-
ness can be used) ; 1834, Smith v. R. Co., 137
Mass. 61 (a written statement signed by a physi-
cian-witness, though also signed by a physician
employed by the opponent, admitted); 1889,
PhiUips V. Marblehead, 148 id. 329, 19 N. E. 547
(value-testimony ; to contradict, the record of
the selectmen, awarding damages for the same
land, and signed by the witness with the other
selectmen, was excluded, because the recorded
damages did not necessarily represent his indi-
vidual opinion of the amount proper) ; 1900,
Healey o. R. Co., 176 id. 440, 57 N. E. 703
(time-book turned in by a foreman, though not
made by him, admissible); 1891, Dawson v.
Pittsburgh, 159 Pa. 317, 326, 28 Atl. 171 (wit-
ness to, betterment ; report of viewers, of whom
he was one, received). Tlie following distinc-
tion seems sound : 1899, Becker v. Cain, 8 N. D.
615, 80 N. W. 805 (counsel's argument before
jury in a prior litigation, as to ownership of
wheat, not admissible to impeach him testify-
ing as plaintiff claiming ownerehip).
' 1798, DeSailly v. Morgan, 2 Esp. 692 (con-
tradicting the teacher of a school, who testified
to the good moral influence in the school, by a
letter of his own to a fonner pupil containing
many immoral passages); 1899, Huff v. State,
106 Ga. 432, 32 S. E. 348 (rape complainant's
1208
attempts to settle the prosecution, admissible on
cross-examination); 1875, Wallace v. R. Co., 119
Mass. 91 (that a plaintiff who had testified that
he was confined to the house by an injury for
six months was within that time seen walking
the streets); 1896, Lewis v. Gaslight Co., 165
id. 411, 43 N. E. 178 (an expert testifying to the
proper mode of work was allowed to be asked
about other occasions when he had done it
differently) ; 1896, Bonnemort v. Gill, ib. 493,
43 N. E. 299 (witness to a testator's incapacity ;
the witness' former treatment of him as capable
of business admitted, but not as necessarily and
always contradictory). Further illustrations of
this kind of evidence will be found ante, §§ 273-
291, where many of the instances would be
equally available against a witness.
' 1869, Swan v. Middlesex, 101 Mass. 174,
179 (a witness who thought cutting off the front
of an estate would improve the value of it,
asked what would induce him to allow tak-
ing his own frontage ; held irrelevant) ; 1873,
Miller v. Smith, 112 id. 472, 475, 476 (here
a witness had testified that a horse was worth
$9,000, and on cross-examination the ques-
tion whether he would give $3,000 for it was
held to be a proper matter for the judge's dis-
cretion) ; 1833, Daniels w. Conra^l, 4 Leigh 402
(that ho had ofiered the same land for sale at a
value lower than his estimate on the stand ;
admitted, "though it might not be as strong as
the evidence of his declarations [of actual value],
because he might be asking a lower price than
he really thought the jiropevty worth "). Com-
pare the cases cited in the next section.
1 Sundry illustrations : 1892, Young k. Brady,
94 Cal. 130, 29 Pac. 489 (assumpsit for money
loaned ; defendant's statement that he was thank-
ful for certain services of the plaintiff and would
reimburse him, excluded) ; 1859, Robinson u.
Hutchinson, 31 Vt. 449 (witness to a will's exe-
cution ; a statement that it was "a sort of bov's
will," admitted) ; 1891, State v. Coella, 3 Wash.
§§ 1017-1046]
SELF-CONTEADICTIOF.
§ 1041
usual case of this kind is that of a general statement upon the merits of
the controversy, which is now offered against a witness who has testified to a
specific matter. Thus, A testifies for the prosecution that he saw the defend-
ant near the scene of the alleged arson ; it is offered to show that he has
elsewhere declared that he is sure that the defendant is innocent; is this ad-
missible ? The usual answer of some Courts is that the declaration should
be excluded because it is mere opinion (post, § 1918). This is unsound,
(1) because the declaration is not offered as testimony (ante, § 1018), and
therefore the Opinion Rule has no application, and (2) because the declara-
tion in its opinion-aspect is not concerned, and is of importance only so far as
it contains by implication some contradictory assertion of fact. In short,
the only proper inquiry can be. Is there within the broad statement of
opinion on the general question some implied assertion of fact inconsistent
with the other assertion made on the stand ? If there is, it ought to be re-
ceived, whether or not it is clothed in or associated with an expression of
opinion. As a matter of precedent, the rulings vary more or less in the
results reached.^ All Courts, however, concede that expert opinions, as well
107 (witness to good character of the defendant ;
prior statements as to fear of being killed by
defendant and his friends, excluded).
2 Mig. : 1831, Elton v. Larkins, 5 C. & P.
89, 390 (that a witness for defendant had said
before trial " the defendants had not a leg to
stand on " ; admitted by Bosanquet, J. , at the
first trial, but rejected by Tindal, C. J., at the
second, because it was not a contradiction of any
ness transactions with the testator ; allowed to be
asked of a witness testifying to insanity ; distin-
guishing Staser ». Hogan, 120 id. 216, 21 N. E.
911, 22 N. E. 990, where the question whether
the witness " would have taken a note " from the
alleged insane person was disallowed) ; 1900,
Stevens v. Leonard, 164 id. 67, 56 N. E. 27 (at-
testing a will implies a statement of sanity ;
hence, the attester's testifying to the testator's
matter of fact but only concerned a matter of insanity discredits by its inconsistency with the
judgment) ; Can. : 1856, Gilbert v. Gooderham,
6 U. C. C. P. 41, 45 (action on a contract of sale,
the defendant denying the contract ; a broker G.
testified to the circumstances of the transaction
and to his saying that he considered the bargain
closed ; a question whether before trial he had
said there was no bargain was asked and ex-
cluded, because as an opinion it was not admis-
sible ; the test being whether such statements
were otherwise admissible) ; Ala.: 1898, Luther
V. State, 118 Ala. 88, 24 So. 43 (that the op-
ponent's witness had said he was afraid not to
testify for the opponent, allowed) ; Fla. : 1901,
Myers ». State, 43 Fla. 500, 31 So. 275 (wit-
attestation ; see post, § 1611) ; Kan. : 1886,
State V. Baldwin, 36 Kan. 14, 12 Pac. 318 (a
witness to the accused's innocent bearing ; ques-
tion whether he had not said he thought the ac-
cused impressed him as guilty, admitted) ; Ky. :
1898, Franklin v. Com., 105 Ky. 237, 48 S. W.
986 (one testifying to defendant's planning ot
the crime ; prior statement that he knew defend-
ant had nothing to do with it, admissible) ; 1900,
Eoss ». Com., — id. — , 65 S. W. 4 (that the
defendant had a bad case, and that it might go
hard with him, excluded) ; Me.: 1870, State v.
Kingsbury, 58 Me. 241 (a statement that "he
never would have done it if it had not been for
ness to defendant's admissions, not allowed to be others," admitted against one testifying in the
cross-examined to expressions of opinion as to defendant's favor) ; Md. : 1880, Munahower v.
defendant's guilt ; citing Com. v. Mooney, Mass.,
infra, now doubted in its own jurisdiction) ;
Ga. : 1901, Central of Ga. E. Co. v. Tramwell,
114 Ga. 312, 40 S. E. 269 (fire caused by a loco
State, 55 Md. 11, 18 (murder ; witness testifying
to defendant's presence, etc., not allowed to be
discredited by confession of his own guilt ; plainly
erroneous, so far as it was an assertion of his ex-
niotive ; to contradict a witness to facts tending elusive guilt) ; Mass. : 1863, Emerson v. Stevens,
to negative the setting of fire by the engine, the
witness' expression that "the C. railroad burnt
it " was admitted) ; Tnd. : 1851, Eucker v. Beaty,
3 lud. 71 (opinion as to motives of the party, ex-
cluded on the facts) ; 1885, Welch v. State, 104
id. 349, 3 N. E. 850 (testimony that defendant
had not confessed ; evidence that witness had
said he knew defendant was guilty and had
offered to bet that he was, excluded, as mere
opinion) ; 1893, Pence v. Waugh, 135 id. 143,
156, 34 N. E. 860 (whether he continued busi-
1209
6 All. 112 (a statement that the defendant-wit-
ness "had a right, if he saw fit" to commit the
trespass denied, admitted) ; 1872, Com. v.
Mooney, 110 Mass. 100 (testimony for prosecu-
tion as to details of a search of premises burned ;
former expression of belief in the defendant's
innocence, excluded) ; 1873, Com. v. Wood, 111
id. 410 (by an eye-witness exonerating the
defendant ; a former statement tliat the defend-
ant was guilty, admitted) ; 1896, Handy v.
Canning, 166 id. 107, 44 N. E. 118 (owner-
§ 1041
TESTIMONIAL IMPEACHMENT.
[Chap. XXXIV
as other opinions ordinarily admissible, if inconsistent with those expressed
on the stand, are receivable.*
S 1042. Silence, Omissions, or Negative Statements, as Inconsistent ;
(1) Silence, etc., as constituting the Impeaching Statement. A failure to
assert a fact, when it would have been natural to assert it, amounts in effect
to an assertion of the non-existence of the fact. This is conceded as a
general principle of evidence (^post, § 1071). There may be explanations,
indicating that the person had in truth no belief of that tenor; but the
ship of a piano was ia issue ; the plaintiff's
statements that she was not owner, ailmit-
ted ; "the test, in such a case as the present,
for the purpose of contradicting the testimony of
a witness, is whether, by common experience,
different statements would mean different posi-
tions taken as to fact foundations, rather than
as to the law conclusions ") ; 1902, Whipple v.
Eich, 180 id. 477, 63 N. E. 5 (witness to a
street accident, testifying that there was no ob-
struction of defendant's view, allowed to be con-
tradicted by his statement that the defendant
was not to blame ; "the question is whether the
specific facts testified to lead so directly to a con-
clusion that it is obvioasly unlikely that a man
will believe a contrary conclusion if he believes
the speciKo facts " ; Com. v. Mooney doubted) ;
Mich. : 1864, Beaubien v. Cicotte, 12 Mich. 487 (a
physician's opinion of a testator's sanity contra-
dicted by his former opinion that the will was
not worth a snap of the fingers ; allowed) ; 1882,
People v. Stackhouse, 49 id. 76, 13 N. W. 364
(an expression of suspicion upon the general
guilt of the defendant, for whom the witness
testified ; excluded) ; 1895, McClellan v. F. W.
& B. I. R. Co., 105 id. 101, 62 N. W. 1025 (an
incon.sistent opinion as to negligence, adtiiitted.
Hooker and Grant, JJ., diss.); Mo.: 1881,
State V. Talbott, 73 Mo. 347, 360 (the question of
Munshower's case, Md., left undecided); Nebr. :
1897, .lohnston v. Spencer, 51 Nebr. 198, 70 N. W.
982 (false representations in a sale ; a witness
to the conditions of the business sold ; whether
he had said that this suit for false representa-
tions was an outrage, excludeel as opinion) ;
1899, Zimmerman v. Bank, 59 id. 23, 80 X. W.
54 (ownership of a note ; that witness had in-
consistently asserted ownership, admitted) ;
iV. ff. : 1860, Nute v. Nute, 41 N. H. 71 (an
opinion on the merits of the case, where the im-
plication was indefinite, excluded) ; 1862, City
Bank o. Young, 43 id. 460 (an opinion on the
merits of the case, excluded) ; N. Y. .- 1857,
People B. Jackson, 3 Park. Cr. 597 (the prosecut-
ing witness in a larceny case had said he did not
think the defendant would do anything wrong ;
admitted) ; 1863, Patchin v. Ins. Co., 13 N. Y.
270 (opinion as such is not excluded) ; 1874,
Schell V. Plumb, 55 id. 599 ("an opinion ex-
pressed by a witness upon the merits is in-
admissible," because, apparently, it does not
necessarily involve an assertion as to the particu-
lar fact testified to ; here "the plaintiff ought to
have $1,000" was held to involve such an asser-
tion) ; 1880, Mayer v. People, 80 id. 377 (false
representations ; a witness for the defendant, cor-
roborating his claim, asked whether he had not
said that the defendant had been guilty of a great
wrong, had acted like thieves ; held proper, two
judges dissenting) ; S. D. : 1897, State v. David-
son, 9 S. D. 564, 70 N. W. 879 (mere opinion
excluded ; here, that a witness to disprove mo-
tive had said that he was convinced the defi'nd-
ant had killed the deceased) ; Term. : 1871,
Sellars v. Sellars, 2 Heisk. 430 (attesting wit-
ness' declarations of testator's insanity, admit-
ted, as contradicting his attestation) ; 1897,
Saunders v. R. Co., 99Tenn. 130, 41 S. W. 1031
(matter of opinion as to the fault of an injured
party, excluded) ; U. S. : 1858, U. S. v. Holmes,
1 Cliff. 116 (the witness had said on board ship,
" I believe the captain is crazy," but, before the
trial, that the captain " was no more crazy than
he was " ; admitted) ; 1903, Chicago & N. W.
R. Co. ■;;. De Clow, — C. C. A. — , 124 Fed. 142
(that he " hoped the plaintiff would not report "
a certain jar of the train, admitted, to impeach
a conductor who had testified denying the jar) ;
Wis. : 1 903, Lowe v. State, — Wis. — , 96
N. W. 417 (assault with intent to kill ; defence,
insanity ; witness' prior contradictory statement
as to defendant's insanity, held admis.sible).
' 1872, People v. Donov.in, 43 Cal. 165 (for-
mer opinion as to sanity) ; 1851, State v. Wind-
sor, 5 Harringt. 512, 526 ; 1881, Gniteau's Trial,
D. C, II, 1237 (an expert witness for the prosecu-
tion on the issue of insanity was allowed to be
discredited by the following postal card sent by
him to the counsel for the defence before being
called by the prosecution: "Accept my congrat-
ulations on the manner in which you have thus
far directed the defence. It may not be popular,
but it is right and just ") ; 1831, Ware v. Ware,
8 Greenl. 44, 55 (physicians testifying to a testa-
. tor's insanity were discredited by former state-
ments that the will could not be broken on the
ground of insanity); 1893, Liddle v. Bank, 153
Mass. 15, 32 N. E. 954 (physician's inconsistent
opinion) ; 1896, Silverstein v. O'Brien, 165 id.
512, 43 N. E. 497 (a witness who valued prop-
erty as worthless, asked as to former expressions
imputing high value to it) ; 1864, Beaubien v.
Cicotte, 12 Mich. 487 (a physician's opinion as
to a testator's sanity); 1863, Sanderson v.
Nashua, 44 N. H. 494 (experts in general) ;
1898, Brooks w. R. Co., 156 N. Y. 244, 50 N. E.
945 (contrary opinion of a physician at a for-
mer trial) ; 1897, Krider v. Philadelphia, 180
Pa. 78, 36 Atl. 405 (the official assessment of
property at a smaller value, to contradict the
assessor as a witness to its value).
1210
§§ 1017-1046]
SELF-CONTEADICTION.
§ 1042
conduct is prima facie an inconsistency. There are several common classes
of cases : (1) Omissions in legal proceedings to assert what would naturally
have been asserted under the circumstances ; ^ (2) Omissions to assert any-
thing, or to speak with such detail or positiveness, when formerly narrating,
on the stand or elsewhere, the matter now dealt with ; ^ (3) Failure to take
the stand at all, when it would have been natural to do so.^ In all of these
1 1895, Charles v. State, 36 Fla. 691, 18 So.
369 (voluntary dismissal of a previous suit
through apparent inability to prove vvhat the
party now asserts ; admitted) ; 1899, Merritt v.
State, 107 Ga. 676, 34 S. E. 361 (assault with
intent to rape said to have been witnessed by
woman's (atlier ; his failure to complain that
day or to appear as complainant in the warrant
sworn out next day, admitted) ; 1868, Clement
V. Kimball, 98 Mass. 536 (the wife's misconduct
pleaded in an action against the husband for
necessaries ; to contradict the defendant's testi-
mony that he had been informed of adultery
with P. in 1865, testimony was received that he
had in 1867 filed a divorce-libel charging adul-
tery with specified persons but not with P.);
1876, State v. Wright, 75 N. C. 439 (testimony
that the prosecutrix, on applying for a warrant,
"made various and contradictory statements,"
excluded, as too indefinite) ; 1877, Snyder v.
Cora., 85 Pa. 519, 521 (charging and testifying
to the murder of the witness' infant daughter by
the defendant, her father ; a former complaint
by her, after the time in question, admitted, in
which incestuous adultery and rape only were
charged, and not murder) ; 1897, Mullen v.
Ins. Co., 182 id. 150, 37 Atl. 988 (failure to
assert a claim now alleged, admitted) ; 1862,
Nye V. Merriam, 35 Vt. 441, 445 (that the de-
fendant by his counsel at the trial below de-
fended the suit upon grounds wholly inconsistent
with his present testimony) ; 1858, Conkey v.
Post, 7 Wis. 137 (omission in the Court below
to object to a note on the ground now claimed,
namely, alteration). Compare the cases cited
fost, §§ 1066, 1072.
« 1678, Coleman's Trial, 7 How. St. Tr. 1,
25 (one of the chief weaknesses in the testimony
of the notorious perjurer Gates was that at liis
original infoi-mation to the Council he failed to
state facts which he afterwards testified to on
the trials of his various victims ; each time
bringing out new facts before unmentioned);
1901, People v. Bishop, 134 Cal. 682, 66 Pac.
976 (witness' hesitation in giving former testi-
mony on the same subject ; allowed to be shown
on the facts) ; 1889, Babcock v. People, 13 Colo.
519, 22 Pac. 817 (failure to mention important
matters at a prior examination, admitted);
1896, Miller v. State, 97 Ga. 653, 25 S. E. 366,
semble (a supposed eye-witness ; that he did not
disclose the assailant's identity when it would
have been proper to do so, admitted); 1855,
Cora. !>. Hawkins, 3 Gray 464 ("alleging a fact
at one time which he denied at another, or
stating it in two ways inconsistent with each
other" Ls admissible, but not "a mere omission
to state a fact, or stating it less fully [at a
former examination], unless the attention of the
VOL. n. — 11
witness was particularly called to it at the
former examination") ; 1873, Hayden v. Stone,
112 Mass. 348, 352 (testimony that C. claimed
ownership ; former silence by witness when as
appraiser of C.'s estate he should have mentioned
C.'s claim, admitted) ; 1875, Perry v. Breed,
117 Mass. 165 (Morton, J.: " If a witness has"
made a previous statement of the transaction in
regard to which he testifies, under such circum-
stances that he was called upon as a matter of
duty or interest to state the whole truth as to-
the transaction, it might be competent to put
such previous , statements in evidence, to show
that lie then omitted material parts of the-
transaction to which he now testifies"); 1885,
Brigham v. Fayerweather, 140 id. 412, 416, 5
N. E. 265 (excluding a foiiner failure of the
witness to make the assei-tion he made on the
stand, because the former occasion did not call
for an expression on the subject) ; 1888,
C. Allen, J., in Foster v. Worthing, 146 id.
607, 16 N. E. 572 ("Declarations or acts or
omissions to speak or to act when it would have
been natural to do so if the fact were as testified
to, may be shown by way of contradiction or
impeachment of the testimony of a witness,
when they fairly tend to control or qualify his
testimony"); 1896, Bonnemort v. Gill, 165 id.
493, 43 N. E. 299 (former omission to testify to
the fact, admitted); 1869, State v. Staley,' 14
Minn. 117 (failure by an accused taking the
stand to deny the truth of his confession, ad-
mitted); 1895, Alward v. Oaks, 63 id. 190, 65
N. W. 271 (a letter to the party detailing the
facts which the witness would testify to, but
omitting a vital fact asserted on the stand,
admitted); 1899, Barretts. R. Co., 157 N. Y.
663, 52 N. E. 659 (omission of a material fact
in a former narration, admitted) ; 1890, State
V. Morton, 107 N. C. 890, 12 S. E. 112 (silence
when other persons were accused, admitted to
impeach a purporting eye-witness of the de-
fendant's act); 1888, U. S. v. Ford, 33 Fed.
864, semble (an omission to mention a matter on
a prior examination, admitted) ; 1862, Briggs v.
Taylor, 35 Vt. 68 (same). But, on the prin-
ciple of § 1072, post, silence in a court room
during legal proceedings is usually not admis-
sible: 1899, Turner's Appeal, 72 Conn. 305, 44
Atl. 310 (listening to another witness without
interruption); 1903, Horan ti. Byrnes, — N. H.
— , 54 Atl. 945 (witness' former silence at a
trial when testimony was given as to her
utterance of the biassed expression in question,
excluded).
* This will depend much on circumstances :
1855, Brock v. State, 26 Ala. 106 (a mother and
a sister of the defendant, though present at the
preliminary examination, failed to testify in his
1211
§1042
testimojs^ial impeachment.
[Chap. XXXIV
much depends on the individual circumstances, and in all of them the
underlying test is, Would it have been natural for the person to make the
assertion in question ?
§ 1043. Same : (2) Silence, etc., as constitutiiig the Testimony to be
Impeached. It ought to follow that, where the witness now claims to be
unable to recollect a matter, a former af&rmation of it should be admitted
as a contradiction. But Courts have usually forbidden this, because the
improper effect is apt to be to give a testimonial value {ante, § 1018) to the
former statement ; its aspect as a mere contradiction being naturally over-
shadowed.i This is well enough as a caution. But the unwilling witness
often takes refuge in a failure to remember,^ and the astute liar is sometimes
impregnable unless his flank can be exposed to an attack of this sort.^ An
absolute rule of prohibition would do more harm than good, and the trial Court
should have discretion. In general, the risk (above noted) of permitting a
testimonial value to be given to the extrajudicial assertion is greater for a
witness examined by a party calling him, while the necessity for using them
to expose a false witness is greater for the opponent of the witness ; and the
usual practice should follow this line of distinction.
behalf, which, however, they afterwards did at
the trial ; excluded); 1895, Com. v. Smith, 163
Mass. 411, 40 N. E. 189 (Allen, J.: "The
judge ruled, in effect, that, where a defendant
now testifies that he is innocent of a criminal
charge, the fact that he has heretofore refused
to answer in relation to the subject, on the
ground that his answers might tend to crim-
inate him, may be considered as bearing upon
the credibility of his present testimony. The
defendant in such case now says that he is
innocent. He formerly did not say that he was
innocent, but that he would not answer lest he
might criminate himself. This fact, though
open to explanation, has some tendency to
throw a doubt upon the truth of his present
testimony, and thus has some bearing upon one
material question ; namely, the truthfulness
of the witness ") ; 1896, People u. Wirth, 108
Mich. 307, 66 N. W. 41 (that a witness for the
defendant saw the defendant bound over and did
not at the time tell what he now tells, namely,
that another person was the guilty one, ad-
mitted). Compare the cases oitei post, § 1072.
For the bearing of the privilege against self-
crimination, as prohibiting the use of the
cuxMsed's silence against him, see post, § 2272.
^ 1788, Warren Hastings' Trial, Lords'
Journal, Feb. 29, April 10 (a question as to
former affirmative testimony of a witness who
now "disclaimed all knowledge of any matter
so inten'ogated ", excluded) ; 1820, The Queen's
Case, 2 6. & B. 299 (when a witness testifies
that he does not know or that he does not re-
member the occurrence of a certain fact, the
fact that he formerly mentioned the alleged
matter in a conversation is not admissible) ;
1898, People v. Dice, 120 Cal. 189, 52 Pac.
477 (former statement of what he now fails to
remember, excluded) ; 1899, Rickeiiion v. State,
106 Ga. 391, 33 S. E. 639 (denial of a fact
which the party thought the witness would
affirm is not the subject of self-contradiction ) ;
1895, Saylor o. Com., — Ky. — , 33 S. W.
185 (testifying that he knows nothing; former
assertion of something, excluded) ; 1897, Ste-
venson V. Com., — id. — , 44 S. W. 634 (tes-
timony that he was not present at an affray ;
former statement that he did see the defendant
shoot the deceased, excluded) ; 1872, State v.
Reed, 60 Me. 550 (here the matter was first
referred to on cross-examination, and the wit-
ness could not recollect details ; former detailed
statements were excluded) ; 1838, Stockton v.
Demuth, 7 Watts 41 (a positive affirmation, not
admitted against one who failed to recollect).
No prior contradictions, of course, can be re-
ceived where the testimony contradicted has
been struck out : 1876, Mayo o. Mayo, 119
Mass. 290.
* Compare Majocchi's "non mi ricordo,"
quoted ante, § 975.
* The following cases illustrate this view :
1897, People v. Turner, 118 Cal. 324, 50 Pac.
537 (a more positive identification, admitted) ;
1860, Hastings v. Livermore, 15 Gray 10 (a
former petition signed, showing a knowledge of
a fact denied on the trial, though the witness
said he did not know its contents, admitted) ;
1860, Nute V. Nute, 41 N. H. 67 (the present
statement was merely that the witness did not
recollect a fact, and the former one affirmed it ;
admitted).
1212
§§ 1017-1046] SELF-CONTRADICTION. § 1045
5. Explaining a-way the Inconsistency.
§ 1044. In general. In accordance with the logical principle of Relevancy
{ante, § 34), the impeached witness may always endeavor to explain away
the effect of the supposed inconsistency by relating whatever circumstances'
would naturally remove it. The contradictory statement indicates on its
face that the witness has been of two minds on the subject, and therefore
that there has been some defect of intelligence, honesty, or impartiality on
his part; and it is conceivable that the inconsistency of the statements
themselves may turn out to be superficial only, or that the error may have
been based not on dishonesty or poor memory but upon a temporary mis-
understanding. To this end it is both logical and just that the explanatory
circumstances, if any, should be received :
1843, Gilchrist, J., in State v. Winkley, 14 N. H. 491 : " Their effect upon his credibility
might have been destroyed by evidence that they were made in an ironical manner and
tone, by showing that they were connected with other remarks in such a way that they
ought not to impair his credit, or that he could not have been supposed to be serious ini
making them."
1874, Danforth, J., in State v. Reed, 62 Me. 146 : " The force of a contradictory state-
ment must depend very materially upon the circumstances under which it was made and
the influences at the time bearing upon the witness. It would therefore seem to be
self-evident that witnesses so situated should be permitted to make such explanation -as
might be in their power. The first impulse of the mind in such a case is to inquire how
this happened, what reason can be given, and more especially what can the party impli-
cated say in excuse or extenuation. To refuse the opportunity to explain would be in
efiect to condemn a party without a hearing, and without that information which in many
cases would be material to a correct judgment." i
§ 1045. Putting in the Whole of the Contradictory Statement. In making
this explanation, it is obvious that in theory all that is allowable, where
^ Accord: Eng. : 1754, Canning's Trial, 19 482 (threats by defendant to witness before her
How. St. Tr. 385 (explaining why a witness prior statement, admitted) ; Ky. : 1899, Louis-,
stayed away from the first trial) ; 1840, R. v. ville & N. R. Co. v. Alumbaugh, — Ky. — ,
Woods, 1 Cr. & Dix 439 (the witness bad con- 51 S. W. 18; Mass. : 1871, Blake v. Stoddard,
tradicted himself as to seeing the deceased 107 Mass. Ill (that after making the contrary
before the murder ; he was allowed to explain erroneous statement in answer to interrogatories
that his former statement was made in fear of he went to his counsel and informed him of the
being involved in the case) ; U. 8. : Ala. : 1853, error, admitted) ; Minn. : 1871, Jaspers v. Lano,
Campbell v. State, 23 Ala. 44, 76 ; 1860, Lewis 17 Minn. 296, 305 (even though the witness
V. State, 35 id. 384, 386 (that the witness' originally denied the statement) ; Mont. : 1896,
master had threatened to whip him unless he Du Vivier v. Phillips, 18 Mont. 370, 45 Pac.
told the story offered in contradiction) ; 1895, 554 (circumstances under which a letter was,
State V. Henry, 107 id. 22, 19 So. 23 (in this written, admitted) ; Nebr. : 1895, Fremont B.
State the singular doctrine that one may not & E. Co. v. Peters, 45 Nebr. 356, 63 N. W. 791 ;
testify to his own state of mind {post, § 1966) N. Y. : 1848, Clapp v. Wilson, 5 Den. 286,
is held not to affect such explanations) ; Cal. : 288 ; K. C. : 1886, State v. Garland, 95 N. C.
1895, People v. Dillwood, — Cal. — , 39 Pac. 672 (seduction ; the fact that the prior deelara-
438 (motive for change of testimony) ; 1898, tions of the prosecutrix were made on the occa-
People V. Shaver, 120 id. 354, 52 Pac. 651 ; sion of a formal visit of investigation from a
1898, People v. Lambert, ib. 170, 52 Pac. 307 ; church-elder, admitted) ; Or. . 1903, State v.
Ga. : 1896, Miller v. State, — Ga. — , 25 Howard, — Or. — , 72 Pac. 880 (reasons for
S. E. 366 (former silence, explained as the making a contradictory affidavit) ; S. 0. : 1887,
result of advice by others) ; 1898, Huff v. State, State v. Jacobs, 28 S. C. 30, 37, 4 S. E. 799 ;
104 id. 521, 30 S. E. 808 (that he had before Wis. : 1888, Norwegian Plow Co. v. Han-
sworn falsely in fear of threats, allowed) ; Ida. : thorn, 71 Wis. 534, 37 N. W. 825. Compare
1895, Douglas v. Douglas, 4 Ida. 293, 38 Pac. the same rule for Admissions, post, § 1058.
935 ; I-nd. : 1878, Jones v. State, 64 Ind. 473,
1213
1045
TESTIMONIAL IMPEACHMENT.
[Chap.XXXIV
the witness wishes to show that the true significance of the former state-
ment has been distorted by a fragmentary repetition of it, is the addi-
tion of such other parts of the statement as explain its true significance, —
and not the entire conversation or writing, which may contain portions
wholly irrelevant for the legitimate purpose of explanation. Such is the
rule in England.^ But in this country it is common to say that the whole of
the conversation^ or of the former testimony or the deposition,^ may be
received. There is much to be said in favor of this looser doctrine, (1) be-
cause it affords a simpler test and avoids a continuous and petty wrangle
over the various parts of the conversation or deposition, and (2) because the
possible disadvantage of introducing some irrelevant matter may well be
borne by the party who provoked this result by attempting to introduce a
fragmentary portion. However, the whole subject is more fully dfeveloped
by the Courts in dealing with the general principle of Completeness, and
the judicial explanations quoted under that head {post, §§ 2113-2118) will
throw light on the probable practice upon the present subject.
§ 1046. Joining Issue as to the Ezplanatiou. When the self-contradiction
is not upon a collateral point (ante, § 1020), either party may introduce other
witnesses upon the issue whether the utterance was made ; this is involved
in the nature of the case.^ But whether additional testimony may be intro-
^ 1820, Abbott, C. J., for all the judges, in
The Queen's Case, 2 B. & B. 294 (admitting
"all which had constituted the motive and in-
ducement and all which may show the meaning
of the words and declarations," but not any
other things which may have been said at the
s.ame time ; see the quotation ante, § 952) ;
1838, Denman, L. C. J., in Prince v. Samo, 7
A. & E. 627 (admitting " everything said " at the
time " that could in any way qualify or explain
the statement as to which he had been cross-
examined," but not "all that he said at the
same time " ; in this opinion, a part of the fore-
going opinion, so far only as it bore on party's
admissions, was repudiated ; see the quotation
post, § 2115).
» 1853, Nelson ». Iverson, 24 Ala. 14 ; 1879,
AVashington v. State, 63 id. 192 (like State v.
Wiukley, infra) • 1862, Wilhelmi v. Leonard,
13 la. 335 ("whole of the conversation");
1843, State y. Winkley, 14 N. H. 491 (instead
of the question to the impeached witness being
confined to a specification of the original re-
marks, and asking categorically whether he
made them, it may ask, " What did you say at
the time 'i " thus bringing out the whole of the
conversation ; the theory being that by detail-
ing the whole " he makes a denial in substance
of having used the expressions in question") ;
1900, State v. Saidell, 70 id. 174, 46 Atl. 1083
(the whole, " so far as it explained or qualified
the matters inquired about," allowed) ; 1875,
Tilton V. Beecher, N. Y., "Official" Report,
II. 313 (crim. con. ; Mr. Samuel Wilkeson, a
witness for the defendant, was discredited by
testimony that he had admitted that the publica-
tion of the charges of crim. con. would "knock
1214
the Life of Christ higher than a kite," meaning
Mr. Beecher's book ; but explained that what
he had really said was that this result would
occur " !/■ these impntations were true ") ; 1868,
State V. Pulley, 63 N. C. 9 (the witness an ac-
complice testifying for the State) ; 1896, Emeiy
V. State, 92 Wis. 146, 65 N. W. 848. Compare
the cases cited post, § 2115.
» 1896, Lowe V. State, 97 Ga. 792, 25 S. E.
676 (all of the former testimony containing the
alleged contradiction) ; 1857, State v. Phillips,
24 Mo. 485 (the whole was read) ; 1875, Prewitt
V. Martin, 59 id. 333 (same) ; 1881, State v.
Talbott, 73 id. 358 (taking a modified view) ;
1892, Wilkerson v. Eilers, 114 id. 245, 251, 21
S. W. 514 (after cross-examination to contra-
dictions in a deposition, the whole may be read,
even though the cross-examiner read none) :
1896, State v. Punshon, 133 id. 44, 34 S. W. 25
(of an accused before the coroner) ; 1890, State v.
Jackson, 9 Mont. 518, 24 Pac. 213 ; 1885, Whit-
man V. Morey, 63 N. H. 448, 454, 2 Atl. 899
(other parts of a deposition) ; 1898, Huntlev v.
Ten-., 7 Okl. 60, 54 Pac. 314 (self-contradictions
in former testimony ; the whole of the witness'
testimony may be read in explanation); 1820,
HaiTison v. Rowan, 3 Wash. C. C. 583. Com-
pare the cases cited post, §§ 2103, 2115, where
the principle of Completeness is considered in
general.
1 1881, R. V. Whelan, Ire., 14 Cox Cr. 595.
Contra: 1901, State v. Jackson, 106 La. 413,
31 So. 52 (defendant having cross-examined a
witness as to making an affidavit against him,
the affidavit was not allowed to be used to show
that the witness had not made it ; the opinion
ignores settled principles).
1017-1046]
SELF-CONTEADICTIOIf.
1046
duced as to the correctness of the explanation given by the witness is doubtful,
as a matter of precedent ; convenience would seem usually to require its
exclusion.'^
2 1864, Beemer v. Kerr, 23 U. C. Q. B. 557
(the witness was contradicted by his own depo-
sition before a magistrate, and explained that
he was at that time confused, that he had not
papers to refer to which he needed, and that not
all that he said was reported ; the opponent's
testimony to disprove these excuses was ex-
cluded ; Draper, C. J. : "If he offers explana-
tions why his statements conflict, they are
neither relevant to the issue tried, nor do they
alter the fact that he has contradicted himself
on oath, and any evidence as to the truth of
his explanations, and not as to the fact in issue,
to which his evidence relates, must be collateral
and cannot be received ") ; 1896, State v. Good-
bier, 48 La. An. 770, 19 So. 755 (disproof of the
witness' explanation rejected) ; 1879, Dufresne
V. Weise, 46 Wis. 297 (explanation Ijy a third
witness on behalf of the impeached witness
excluded). See the treatment of a similar ques-
tion as to Explanations of Bias, mite, § 952.
1215
§ 1048
BOOK I, PAKT I, TITLE II.
[Chap. XXXV
Sub-title II (continued) : TESTIMONIAL IMPEACHMENT.
Topic VI: ADMISSIONS.
CHAPTER XXXV.
1. General Theory.
§ 1048. Nature of Admissions.
§ 1049. Admissions, distinguished from the
Hearsay exception for Statements of Facts
against Interest ; Death not necessary.
§ 1050. Admissions, distinguished from Con-
fessions ; Admissions under Duress.
§ 1051. Admissions, distinguished from Testi-
monial Self-Contradictions ; Prior Warning not
necessary.
§ 1052. Admissions, distinguished from Con-
duct indicating a Consciousness of Guilt (Flight,
Fraud, Spoliation of Documents, Withholding
of Evidence, and the like).
§ 1053. Admissions, as not subject to rules
for Testimonial Qualifications ; Personal Knowl-
edge ; Infancy.
§ 1054. Admissions, excluded as evidence of
certain facts ; (1) Contents of Documents ; (2)
Execution of Attested Documents.
§ 1055. Admissions, as insufficient for proof
of certain facts ; (1) Marriage ; (2) Divorce ;
(-3) Criminal Cases.
§ 1056. Admissions, as distinguished from
Estoppels, Warranties, Contracts, and Arbitra-
tions ; Admissions made to Third Persons, or
after Suit Begun.
§ 1057. Admissions, as distinguished from
Solemn or Judicial Admissions.
§ 1058. Same ; Quasi-Admissious not conclu-
sive ; Explanations ; Prior Consistent Claims ;
Putting in the Whole of the Statement.
2. Wliat Statements are Admissions.
§ 1060. Implied Admissions ; Sundry In-
stances.
§ 1061. Hypothetical Admissions ; (1) Offer
to Compromise or Settle a Claim ; General
Principle.
§ 1062. Same : State of the Law in various
Jurisdictions.
§ 1063. Same : (2) Admissions in Pleadings ;
{a) Attorneys' Admissions, in general.
§1064. Same: (6) Common-Law Pleadings in
the Same Cause, as Judicial Admissions.
§ 1065. Same : (c) Bills and Answers in
Chancery in other Causes.
§ 1066. Same : {d) Common-Law Pleadings
in other Causes.
1.
(e) Superseded or Amended
§1067. Same;
Pleadings.
3. Vicarions Admissions (by other
than the Party Himself).
§ 1069. In general.
§ 1070. Admissions by Reference to a Third
Pereon.
§ 1071. Third Person's Statement assented to
by Party's Silence ; General Principle.
§ 1072. Same : Specific Enles ; Statements
made during a Trial, under Arrest ; Notice to
Quit ; Omission to Schedule a Claim.
§ 1073. Third Person's Document ; Writing
Sent to the Party or Found in his Possession ;
Unanswered Letter; Accounts Rendered; "Proofs
of Loss " in Insurance.
§ 1074. Same : Books of a Corporation or
Partnership.
§ 1 075. Same : Depositions in another Trial,
Used or Referred to.
§ 1076. Nominal and Real Parties ; Represen-
tative Parties (Executor, Guardian, etc.); Stock-
holders ; Joint Parties ; Confessions of a
Co-defendant ; Other Parties to the Litigation.
§ 1077. Privies in Obligation ; Joint Promi-
sor ; Principal and Surety ; etc.
§ 1078. Same : Agent ; Partner; Attorney ;
Deputy-Sheriif ; Husband and Wife ; Inter-
preter.
§ 1079. Same : Co-Conspirator ; Joint Tort-
feasor.
§ 1080. Privies in Title ; General Principle ;
History of the Principle.
§ 1081. Same : Decedent ; Insured ; Co-lega-
tee ; Co-heir ; Co-executor ; Co-tenant ; Bank-
rupt Debtor.
§ 1082. Same : Grantor, Vendor, Assignor,
Indorser; (1) Admissions before Tran.sfer ; (a)
Realty ; Admissions against Documentary Title ;
Transfers in Fraud of Creditors.
§ 1083. Same : (b) Personalty ; New York
rule.
§ 1084. Same: (c) Negotiable Instruments.
§ 1085. Same: (2) Admissions after Trans-
fer ; Realty and Personalty in general.
§ 1086. Same : Transfers in Fraud of Creditors.
§ 1087. Same : Other Principles affecting
Grantor's Declarations as to Property, dis-
criminated.
General Theory.
§ 1048. Nature of Admissions. (1) Just as a witness' testimony is dis-
credited when it appears that on another occasion he has made a statement
inconsistent with that testimony {ante, §§ 1018 £f.), so also the party is dis-
* ' 1216
§§ 1048-1087] GENEEAL THEORY. § 1048
credited when it appears that on some other occasion he has made a statement
inconsistent with his present claim. This is the simple theory upon which
a party's admissions — of the informal sort, which might better be termed
" quasi-admissions " ' — are every day received in evidence on behalf of his
opponent. The witness speaks in court through his testimony only, and
hence his testimony forms the sole basis upon which the inconsistency of his
other statement is predicated. But the party, whether he himself takes the
stand or not, speaks always through his pleadings and through tlie testimony
of his witnesses put forward to support his pleadings ; hence the basis upon
which may be predicated a discrediting inconsistency on his part includes
the whole range of facts asserted in his pleadings and in the testimony relied
on by him. Thus, in efifect, and broadly, anything said hj the party may be
used against him as an admission, provided it exhibits the quaKty of incon-
sistency with the facts now asserted by him in pleadings or in testimony.
(2) It follows that the subject of an admission is not limited to facts
against the party's interest at the time. No doubt the weight of credit to
be given to such statements is increased when the fact stated is against the
person's interest at the time ; but that circumstance has no bearing upon
their admissibility. On principle, it is plain that every prior statement of
the party, exhibiting an inconsistency with his present claim, tends to throw
doubt upon it, whether he was at the time speaking apparently in his own
favor or against his own interest. For example, a plaintiff who now claims
a debt of $100 is clearly discredited by having made a demand a month ago
for only $50, even if at the time the debtor conceded only $25 and thus put
the demandant in the position of making an assertion purely in his own favor
and for the aggrandizement of his claim. If the principle upon which admis-
sions were received rested at all upon the disserving quality of the fact as-
serted at the time of assertion, all such statements would be as certainly
rejected when offered by the opponent as they would be when offered by the
party himself in his own favor. Nevertheless the fallacy is sometimes com-
mitted of placing the admissibility of such statements on that untenable
ground.^ That it is a fallacy, in the fullest sense, is to be seen not only by
reflecting upon the principle involved, but also by observing that no Court
ever yet excluded an opponent's admission because of such a limitation.
Daily practice and unquestioned tradition are here unmistakable. Some-
times, too, the Courts have expressly negatived the fallacy in question :
1856, Pollock, C. B., in Darby v. Ouseley, 1 H. & N. 1 : " The distinction is this : If a
party has chosen to talk about a particular matter, bis statement is evidence against
himself."
^ These are to be distinguished from the against himself unless it were true ") ; 1849,
solemn, or judicial, admissions, as noted po^t B^'l) J-i ii Truby v. Seybert, 12 Pa. St. 101,
§ 1057. 104 ("a man's acts, conduct, and declarations
^ The following are typical passages : 1794, wherever made, provided they be voluntary, are
L. C. J. Eyre, in Thomas Hardy's Trial, 24 admi.ssible against him, as it is fair to presume
How. St. Tr. 1093 ("the presumption upon they correspond with the truth; and it is his
which declarations are evidence [against a de- fault if they do not.")
fendant] is that no man would declare anything
1217
§ 1048 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
1898, Hamersley, J., in State v. Willis, 71 Conn. 293, 41 Atl. 820: " Admissions are not
admitted as testimony of the declarant in respect to any facts in issue ; . . . They are
admitted because conduct of a party to the proceeding, in respect to the matter in dispute,
whether by acts, speech, or writing, which is clearly inconsistent with the truth of his con-
tention, is a fact relevant to the issue." '
(3) The logical basis, therefore, of the use of admissions is twofold. In
the first place, all admissions furnish, as against the party, the same discred-
iting inference as that which may be made against a witness in consequence
of a prior self-contradiction ; the nature of this inference, both in its strength
and in its weakness, has been already examined {ante, § 1018), and need not
be here reconsidered. In the next place, those admissions which happen to
state a fact that was at the time against the party's interest have an addi-
tional and testimonial value, independent of the contradiction and similar to
that which justifies the Hearsay exception for statements of facts against
interest {post, § 1049) ; this element adding to their probative value, but not
being essential to their admissibility. This double evidential utility ex-
plains the proposition, sometimes judicially sanctioned, that an admission is
equivalent to affirmative testimony for the party offering it.* Such a theory
is partly correct, partly incorrect. It certainly cannot be true of admissions
in general ; their effect, like that of a witness' self-contradictions, is merely
destructive. But it may be true of such admissions as state facts against
the party's interest at the time of stating them ; such admissions fulfil the
requirements of the Hearsay exception applicable to such statements {post,
§ 1457), except that the declarant is not deceased or otherwise unavailable.
If it could be conceded that the opponent is, as such, now practically un-
available for the purpose of obtaining sincere testimony, then the Hearsay
exception would be entirely satisfied, and with accuracy it could be said that
the statements of the opponent are equivalent to independent testimony, and
not merely to self-contradictions.
§ 1049. Admissions, distinguished from the Hearsay exception for Statements
of Pacts against Interest; Death not necessary. The use of the admissions is
on principle not obnoxious to the Hearsay rule ; because that rule affects
such statements only as are offered for their independent assertive value
after the manner of ordinary testimony {post,^ 1362), while admissions are
receivable primarily because of their inconsistency with the party's present
claim and irrespective of their credit as assertions ; the offeror of the admis-
sions, in other words, does not necessarily predicate their truth, but uses
them merely to overthrow a contrary proposition now asserted. Just as the
Hearsay rule is not applicable to the use of a witness' prior self-contradic-
' Accord : 1882, State v. Anderson, 10 Or. dence, they tend, as does other competent evi-
448, 453 (the admissibility "does not in any dence, to prove the fact in issue to which they
manner depend upon the question whether they relate"); 1879, Bartlett ». Wilbur, 53 Md.
were for or against his interest at the time they 485, 497 (they "may be offered to prove the
were made or afterwards"); 1899, State ». Mowry, truth of the matters admitted ") ; 1879, Taylor,
2] K. I. 376, 43 Atl. 871 (defendant's exculpa- J., in Warder v. Fisher, 48 Wis. 344, 4 N. W.
itive story on a charge of murder). 470 ("are received also for the purpose of es-
* 1867, Rhodes, J., in Hall v. The Emily tablishing the truth of the unsworn contradict-
Banning, 33 Cal. 525 ("when given in evi- ory statements themselves").
1218
§§ 1048-1087] GENERAL THEORY. § 1051
tions {ante, § 1020 ; post, § 1792), so it is not applicable to the use of an
opponent's admissions.
Nevertheless, because most statements used as admissions do happen to
state facts against interest, judges have been found who, misled by this
casual feature, have treated admissions in general as obnoxious to the Hear-
say rule, and therefore as entering under an exception to that rule.^ That
this is a mere local error of exposition and in no sense represents a rule any-
where obtaining may be seen from two circumstances : first, that the limi-
tation of the Hearsay exception to facts against pecuniary or proprietary
interest {post, §§ 1461, 1476) has never been attempted to be applied to ad-
missions ; secondly, that the further requirement of the Hearsay exception,
namely, that the declarant must first be accounted for as deceased, absent
from the jurisdiction, or otherwise unavailable {post, § 1456), has never been
enforced for the use of a party's admissions.^
§ 1050. Admissions, distinguished from Confessions ; Admissions under
Duress. A confession is one species of admission, namely, an admission con-
sisting of a direct assertion, by the accused in a criminal case, of the main
fact charged against him or of some fact essential to the charge {ante, § 821).
The peculiarity of confessions in evidence is that they are subjected to an
additional limitation when offered in criminal cases, — the limitation that
they must have been made without any inducement calculated to destroy
their trustworthiness {ante, § 822). The reason why such a limitation
should be especially recognized for that species of admissions has already
been examined ; it is enough here to repeat that the rule for confessions
does not apply to confessions made under duress and offered in a civil
case, even when the confession was originally made in a criminal case
{ante, § 816). What remains to note is that, since a confession is merely
one sort of an admission, all other admissions are usable against the accused
in a criminal case precisely as against a party in a civil case {ante, § 821) ;
i. e. so long as they have satisfied the confessional rule, or fall without its
scope, they are to be tested, like other admissions, by the ensuing principles
common to all admissions.
§ 1051. Admissions, distinguished from Testimonial Self-Contradictions ;
Prior Warning not necessary. An admission is logically useful against the
party in the same way as a prior inconsistent statement against a witness
{ante, §§ 1018, 1048), and its admissibility rests upon that ground. It
follows that certain deductions from this principle have a parallel applica-
tion to the present sort of evidence, — notably in respect to implied admis-
* E. g. in Terry v. Rodalian, 79 Ga. 278, 293, 150 ; and also cases quoted post, § 1080. The
5 S. E. 38 (1887), and in the cases cited ante, contrary seems never to have been sanctioned
§ 1048, note 2. except in Gibblehouse v. Stong, 3 Rawle 436
' 1834, Woolway v. Eowe, 1 A. & E. 114 (1832), Kennedy, J., diss. The confusion is per-
(declarations of a former proprietor admitted haps a natural one in dealing with an ancestor's
ajjainst the plaintiff; "the fact of his being declarations of defect of title, where upon
alive at the time of the trial," held not to ex- either principle the statement might be receiv-
clude them) ; 1846, Payson v. Good, 3 Kerr N. able ; the difficulties are particularly analyzed,
Br. 272, 279; 1819, -Guy .,. Hall, 3 Murph. post, §§1082-1087.
1219
§ 1051 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
sions (post, § 1060) and to explanations of the admissions (post, § 1058).
But there are two respects in which the distinction between a witness' self-
contradictions and a party's admissions becomes important.
(1) The rule requiring that the witness must have been warned when on
the dand, and asked whether he had made the statement about to be offered
as a self-contradiction (ante, §§ 1025 ff.), has always been understood not to be
applicable to the use of a party's admissions, i. e. they may be offered without
a prior warning to the party. ^ The historical origin of this rule is plain
enough ; for until the middle of the 1800s the opponent was neither compe-
tent nor compellable to take the stand as a witness in common-law trials
(ante, § 577 ; post, § 2217), and hence it was impossible to ask him about his
utterances ; a requirement to that effect would have excluded all admissions.
Since parties have been made competent and compellable, this obstacle no
longer exists in full force. But nevertheless the rule has persisted, and on
two sufficient grounds, first, because the opponent may not in fact take the
stand, and thus no opportunity for asking him would arise, and, secondly,
because the only object of requiring the warning is to provide a fair oppor-
tunity of explanation before the witness' departure, whereas a party is in
theory present during the trial, and has in fact ample opportunity to protect
himself by taking the stand for any explanations which he may deem neces-
sary after hearing the testimony to his alleged admissions. It may be added
that in chancery practice, where the opponent was compellable to testify
upon a bill of discovery, and thus the reason of the original rule was in part
lacking, there was a practice which to some extent assimilated the rule for
witnesses, i. e. the party's oral admissions, though received in evidence,
would not be acted on as the basis of a decision unless they had been
specifically inquired about beforehand in the interrogatories appended to
the bill (post, § 1856).
1 1837, Andrews v. Askey, 8 C. & P. 7 ; 1902, Dunafon v. Barber, — id. — , 92 N. W.
1874, Day, Common Law Procedure Acts, 4th 198 ; 1900, Drury v. Terr., 9 Okl. 398, 60 Pac.
ed., 277 (the statute of 1854 does not apply to 101, semble ; 1874, Brubaker v. Taylor, 76 Pa.
admissions); 1877, Collins v. Mack, 31 Ark. 87 (even where also a witness) ; 1876, Kreiter i>.
694 (even where the party is also a witness) ; Bomberger, 82 id. 59, 61 (same) ; 1895, State v.
1892, Rose v. Otis, 18 Colo. 59, 63, 31 Pac. Freeman, 43 S. C. 105, 20 S. E. 974 (even
493 (same); 1898, State v. Browu, Del., 1 where also a witness); 1898, Hart v. Pratt, 19
Penneville 286, 40 Atl. 938; 1897, Belt v. Wash. 560, 53 Pac. 711. Contra: 1882, Nut-
State, 103 Ga. 12, 29 S. E. 451 (larceny; the ter ». O'Donuell, 6 Colo. 253, 260 ("the rule
prosecutrix not being a party, prior asking is the same whether the witnesses sought to be
is necessary before using inconsistent state- contradicted are parties to the suit or third
ments) ; 1894, Coffin v. Bradbury, — Ida. — , persons") ; 1889, State v. Young, 99 Mo. 666,
35 Pac. 715, 722; 1897, Buck v. Haddock, 167 681, 12 S. W. 879 (rule applicable to defendant
111. 219, 47 N. E. 208 ; 1897, Eddings v. Boner, testifying; Ray, C. J., and Black, J., diss.) ;
1 Ind. T. 173, 38 S. W. 1110; 1896, State v. 1881, State ». White, 15 S. C. 381, 391 (asking
Forsythe, 99 la. 1, 68 N. W. 446 ; 1900, Bullard not required for admissions as such, even when
V. Bullard, 112 id. 423, 84 N. W. 513; 1894, the party takes the stand ; otherwise, if the
Southern K. R. Co. w. Painter, 53 Kan. 414, 418, statements are offered to impeach him as
36 Pac. 731 ; 1896, Kirk v. Garrett, 84 Md. 383, witness).
35 Atl. 1089 ; 1903, White ■». Collins, — Minn. It is to be noted that this exemption from
— , 95 N. W. 765 ; 1901, McBlain v. Edgar, 65 asking is properly applied even where the party
N. J. L. 634, 48 Atl. 600 (even where also a. is also a witness ; i.e. where his statement plays
witness) ; 1899, Churchill v. White, 58 Nebr. the double part of a party's admission and a
22, 78 N. W. 369 (even where also a witness) ; witness' self-contradictiou.
1220
§§ 1048-1087] GENERAL THEORY. § 1052
(2) A further practical difference between a party's admissions and a wit-
ness' self-contradictions remains to be noticed. The statements of a third
person, i. e. vicarious admissions, may often be used against the party as ad-
missions, — for example, admissions by a predecessor in title. But this use
is subject to definite limitations (^post, §§ 1069-1087). Hence, if such a
person has taken the stand as a witness, his prior inconsistent statements
may be available to discredit him as a witness, although they might have
failed to satisfy the rule for admissions of a predecessor ; ^ conversely, they
may satisfy the latter rule but not the former, even against a party .^
§ 1052. Admissions, distinguished from Conduct indicating a Consciousness
of Guilt (Flight, Fraud, Spoliation of Documents, Withholding of Evidence, and
the like). (1) Admissions are statements, i.e. assertions in words, and it is
their inconsistency with the party's other assertions that discredits the latter.
Hence conduct cannot of itself be treated as an admission. Yet the various
sorts of conduct, which indicate a guilty consciousness and are undoubtedly
receivable in evidence, are sometimes spoken of as admissions. The truth is
that they are just what they seem to be, namely, acts, not assertions, and
that their use in evidence is strictly a circumstantial one by way of inference
from the conduct to the mental state beneath it, and from that to some
ulterior fact. This kind of evidence, and the theory of it, has already been
considered in detail {ante, §§ 265-293). What has led them to be by some
judges described as admissions is the casual feature that in most instances
they are receivable only as against a party to the cause, i. e. subject to the
limitation peculiar to admissions. The reason for this is that otherwise their
unrestricted use would lead to a substantial evasion of the Hearsay rule.
For example, if after an affray one of the participants. A, takes flight and one
of the bystanders, B, pursues and arrests him, A's flight is circumstantial
evidence of his consciousness of guilt and thus of actual guilt, while B's pur-
suit is no less a circumstance evidencing B's belief in A's guilt and thus simi-
larly of the fact of guilt. Yet to admit B's belief as circumstantial evidence
would be at least no better than to admit B's extrajudicial assertion of A's
guilt, which would clearly be prohibited by the Hearsay rule. Therefore in
general the conduct of third persons, so far as it is a means of arguing to
their belief, and thus to the fact believed, is excluded. Nevertheless, there
are exceptional instances enough, in which such conduct is admitted, to in-
* 1895, Joseph! v. Furnish, 27 Or. 260, 41 nient is receivable) ; 1902, State v. Deal, —
Pac. 424 (where a vendor on cross-examination Or. — , 70Pac. 534. So, too, the rule against
was asked as to statements made by him after impeaching one's own witness may forbid using
the sale of chattels ; these statements being in self-contradictions against the opponent called
themselves inadmissible as admissions by one as a witness {ante, § 906), and yet the same state-
out of possession, but being also contradictory ments may serve as admissions ; 1871, Gibbs
to his direct testimony as to the facts of the v, Linabury, 22 Mich. 479 (where to prove the
sale, and for the latter purpose only admissible) ; execution of a note the defendant was called ; he
1897, Vogt V. Baldwin, 20 Mont. 322, 51 Pac. testified that he could not swear to the writing,
157 (similar niling for statements of an assignor and the plaintiff then testified that the defend-
testifying). ant had admitted the signature's genuineness on
' 1878, Wallace v. Souther, 2 Can. Sup. 598, the stand at the trial below ; held proper, as an
604 ("whether it contradicts a previous state- admission),
jnent [on the stand] or not," the party's state-
1221
§ 1052 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
dicate that on principle such evidence has a genuine circumstantial use, and
that its prohibition is the indirect result of the policy of the Hearsay rule,
and not of logical necessity. Those rules of exception have been already
fully considered (ante, §§ 268-272). It is enough here to note that the various
sorts of conduct which are thus received against a party are not on principle
to be classed as admissions, but as conduct affording circumstantial inferences.
The chief types of such conduct, already considered in the above-cited sections,
may here be rehearsed for reference' sake: Demeanor during trial (§ 274);
Eefusal to undergo a superstitious test (§ 275); Flight, escape, resistance, or
concealment (§ 276) ; Falsehood, fraud, fabrication and suppression of evi-
dence, bribery, spoliation (§ 278); Precautions against injury, repairs of a
machine or highway after an injury (§§ 282, 283) ; Failure to prosecute or
to make claim (§ 284) ; and Failure to produce witnesses or documents
(§§285-291).
(2) From the foregoing use of conduct circumstantially is to be distin-
guished the use of silence as embodying a genuine admission. "When by a
party's silence an assent is given to the assertion of a third person, that
assertion is thereby adopted by the party, and therefore may be used against
him as his own statement and admission. It is the statement, however,
that constitutes the admission ; the conduct merely effects its adoption.
Such admissions, forming one variety of vicarious admissions, may be later
examined in detail {post, § 1071).
§ 1053. Admissions, as not subject to rules for Testimonial Qualification ;
Personal Knowledge; Infancy. (1) The primary use and effect of an admis-
sion is to discredit a party's claim by exhibiting his inconsistency in other
utteraAces. It is therefore immaterial whether these other utterances would
have been independently receivable as the testimony of a qualified witness.
It is their inconsistency with the party's present claim that gives them
logical force, and not their testimonial credit. In particular, personal knowl-
edge, as indispensable to a witness (ante, § 656), is here not required. If the
party, for example, now claims that his contract, made by an agent in France,
entitles him to a cargo of silk, his statement last month that his contract
called for a cargo of wine would discredit his present claim, even though it
may be apparent that in neither case could he speak from personal knowl-
edge. The conflict of claims is the significant circumstance, and the ele-
ment of personal knowledge merely increases or lessens that significance.
Since a party may make a claim and file averments of pleading without
regard to personal knowledge of the facts, it is fallacious to exact, in his
contrary admissions, an element of personal knowledge which is not required
for the original advancement of his claim. Such a requirement is repudiated
in the .better judicial view :
1860, Stephens, J., in Kitchen v. Robbins, 29 Ga. 713, 716 : " Are no admissions good
against a party, unless founded on his personal knowledge ? The admissions would not
be made except on evidence which satisfies the party who is making them against his
own interest, that they are true, and that is evidence to the jury that they are true. Ad-
1222
§§ 1048-1087]
GENERAL THEORY.
§ 1054
missions do not come in on the ground that the party making them is speaking from
his personal knowledge, but upon the ground that a party will not make admissions
against himself unless they are true. The fact that he makes them against his interest'
can be reasonably explained only on the supposition that he is constrained to do so by
the force of the evidence. The source from which a knowledge of the facts is derived, is
a circumstance for the jury to consider, in estimating the value of the evidence, but that
is all. "1
(2) On the same principle, the admissions of an infant party would be
receivable.^ Theoretically, the admissions of a lunatic party would stand upon
the same footing, although the weight to be given them might be nil. The
practical result of conceding this much upon principle would be that at any
rate there would be no occasion for putting into force the detailed rules about
testimonial capacity {ante,, §§ 492-509).
§ 1054. Admissions, excluded as evidence of certain facts ; (1) Contents of
Documents ; (2) Execution of Attested Documents. For the purpose of prov-
ing certain classes of facts, the use of admissions has by some Courts been
forbidden.
(1) In evidencing the contents of a document, it has sometiines been thought
that the opponent's admissions — at least, his oral admissions — should not
be received until the original had been accounted for as lost or otherwise
unavailable. This view, from time to time advanced in early English rulings.
' Accord: 1836, Bishop of Meath ». Marquess
of Winchester, 3 Bing. N. 0. 183, 203 (case
stated for coun.iel, made by a predecessor of the
present hishop, concerning facts ranging 60 years
before, received, though no "personal knowledge
of the facts " could be supposed on his part ; here
the facts consisted chiefly of documents preserved,
and the party had at any rate " with such, the
best means of knowledge ") ; 1874, Bulley v.
BuUey, L. R. 9 Ch. App. 739, 747, 751 (recital
in a deed "sent to he executed for the purpose
of making a good title, " received ; but treated
as having little weight, because it concerned a
matter happening 120 years before, of which the
party could have no personal knowledge) ; 1860,
Kitchen v. Bobbins, 29 Ga. 713, 716 (see quota-
" tion supra) ; 1901, Wasey v. Ins. Co., 126 Mich.
119, 85 N. W. 459 ; 1847, Sparr v. Wellniau,
11 Mo. 230, 234 (" where a party believes a fact
upon evidence sufficient to convince him of its
existence, his declaration of the existence of that
fact, if against his interest, is evidence against
him ") ; 1899, Keed v. McCord, 160 N. Y. 330,
54 N. E. 737 (if not merely in form an admission
that he had heard of the fact) ; 1835, Miller v.
Denman, 8 Verg. 237 (" whether he derives the
facts admitted from his own knowledge or from
information is perfectly immaterial " ; but the
Court wrongly declares that the source of the
assertion cannot even affect the credit to be
given by the jury to the admission) ; 1867,
Shaddock v. Clifton, 22 Wis. 114, 118 ; 1870,
Chapman v. E. Co., 26 id. 294, 302 ; Contra :
1801, Chambre, J., in Eoe v. Ferrars, 2 B. & P.
542, 548 ("where one party reads a part of the
answer of the other party in evidence, he makes
the whole admissible only so far as to waive any
objection to the competency of the testimony of
the party making the answer," and not so as to
admit facts " stated by way of hearsay only ") ;
1897, Folk V. Schaefler, 180 Pa. 613, 37 Atl.
104 (admission of liability by a partner, who
had no personal knowledge, excluded in a suit
against the firm); Undecided: 1825, Rees v.
Bowen, 1 McCl. & Y. 389, 391. But the prin-
ciple does not require the reception of an admis-
sion which in form merely concedes that some one
else said something; for here the fact admitted
would itself be merely a. hearsay statement
(according to the distinction noted ante, § 664) ;
1842, Lord Trimlestown v. Kemmis, 5 CI. & F.
749, 780, 784 (statement by » party's predeces-
sor that he had heard his. grandmother make a
certain statement, held not receivable ; Lord
Brougham doubting) ; 1857, Stephens v. Vro-
man, 16 K. Y. 381, 383 ; 1899, Keed v. McCord,
N. Y. (cited supra),
Note that under the present principle aparty's
account-booJes are always receivable against him,
even though for lack of personal knowledge they
might not be admissible under the Hearsay ex-
ception for regular entries {post, §§ 1530, 1557).
» 1845, O'Neill o. Read, 7 Ir. L. Rep. 434
(admissions of facts tending to show that goods
were necessaries, received ; but the Court, rather
curiously, declined to term the statements
"admissions"); 1902, Chicago C. E. Co. v.
Tuohy, 196 111. 410, 63 N. E. 997, semble; 1899,
Atchison T. & S. F. E. Co. v. Potter, 60 Kan.
808, 58 Pac. 471 (infant's admissions receivable
if the trial Court regards him as intelligent,
even though he is incompetent to take an oath) ;
1827, Mather v. Clark, 2 Aik. 209, 210.
1223
§ 1054 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
was definitely repudiated in Slatterie v. Pooley in a forceful opinion by Baron
Parke ; but has nevertheless obtained some vogue in the courts of this
country. Its reasoning, and the state of the law, are examined elsewhere
{post, §§ 1255-1257), in dealing with the rule requiring the production of
documentary originals. That the fact of loss of the original may be evidenced
by admissions has not been doubted {post, § 1196).
(2) In evidencing the execution of an attested document, the opponent's ad-
missions were, by the orthodox common law, held inferior to the proof of the ;
attesting witness' signature, and were not receivable until the latter was
shown to be unattainable ; though some American Courts declined to accept
this result. The reason for it, and the state of the law, are elsewhere exam-
ined {post, §§ 1296-1300), in dealing with the attesting-witness rule. Apart
from that rule, it has not been doubted that the execution of an ordinary
unattested document may be evidenced by admissions {post, § 2132).
(3) In Louisiana, a peculiar rule obtains that, if the signature of a docu-
ment is disowned in the opponent's pleading, his admission will not be
received to prove it.^
§ 1055. Admissions, as insufficient for proof of certain facts: (1) Marriage;
(2) Divorce ; (3) Criminal Cases. In proving certain kinds of facts, a few
rules have grown up which do not forbid the use of the party's admissions,
but merely declare them insufficient without additional evidence ; these are
rules of quantity, not of relevancy.
(1) There has been some recognition of a rule that, upon certain issues, the
fact of marriage is not sufficiently evidenced by admissions alone {post,
§ 2086).
(2) In a proceeding for divorce, the rule adopted from the ciAnl law obtaius
universally, that the opponent's admissions are not alone sufficient proof ; the
danger of collusion furnishing the reason for the rule {post, § 2067).
(3) In criminal cases, a rule prevails in many jurisdictions that the accuseds
confession is not alone sufficient to found a conviction upon {post, § 2070).
§ 1056. Admissions, as distinguished from Estoppels, Warranties, Contracts,
and Arbitrations ; Admissions made to Third Persons or after Suit Begun. An
admission, of the sort here concerned, is nothing but a piece of evidence, dis-
crediting the party's present claim and tending to prove the fact of its incor-
rectness. It is therefore to be distinguished from those statements of the
party which become in themselves the foundation of independent rights for
other persons, by virtue of some doctrine of substantive law, — in other
words, from binding estoppels, warranties, and representations. Thus, if A
claims that his boundary line runs to an oak tree, and B admitted this, B's
extrajudicial admission of the boundary's location is merely evidence for the
truth of the other facts on which A rests his claim. But if B has made his
statement to A under such circumstances that A was justified in acting on it
and has since built up to the line he claimed, B's concession may by estoppel
* 1835, Plicque o. La Branche, 9 La. 560, 562 handwriting) ; 1849, Segoud v. Roach, 4 La.
(under 0. C. P. § 325, providing for proof of An. 54 (rule not applicable to a lost document),
1221
§§ 1048-1087] GENERAL THEORY, § 1056
become the foundation for a new right for A, wholly irrespective of the
validity of the grounds of his original claim. Here the field of substantive
law, not that of evidence, is concerned. The statement or representation of
B may, however, have been precisely the same in both cases, and it is A's
reliance and action thereon that bring into effect the doctrine of the substan-
tive law. Thus, the so-called " admission " being a common feature in both
instances, there has been some tendency ^ to confound in one treatment the
two wholly distinct things. There is, however, no ground for this confusion.
It is simple enough to keep apart the evidential thing and the doctrine of
substantive rights ;
1860, Bell, C. J., in Corser v. Paul, 31 N. H. 24, 31: " There is a class of admissions
which may be either express or implied from silence, or acquiescence, which are conclu-
sive. Such are admissions which have been acted upon, or those which have been made
to influeuce the conduct of others, or to derive some advantage to the party, and which,
therefore, cannot be denied without a breach of good faith. As if, for example, in the
present case, the defendant had stood by and seen this note offered to the bank for dis-
count ; and, being aware of wliat was doing, had been silent ; or if, before the discbunt
he had been spoken to by any of the officers of the bank in relation to the note, and, being
aware of the facts, had forborne to deny the signature — by these tacit admissions he
would be forever concluded to deny the note to be his, in case the bank discounted it.
This is but an application of the same principle that is applied in the case of deeds of
real estate, that he who stands by, at the sale of his property by another person, without
objecting, will be precluded from contesting the purchaser's title."
So also a representation may become a warranty or other contract, and thus
give rise to substantive rights, although, apart from such rights, the same
representation might have been spoken of as a mere evidential admission ;
the occasional use of the term " admission " in such a connection (as, for ex-
ample, when it is said that the indorsement of a bill of exchange admits —
i. e. warrants — the genuineness of all prior indorsements ^) must not be allowed
to mislead us. So, too, the question whether a party has by his conduct as-
sented to a contract^ or to the possession of land, and has thus effected a
change in his substantive rights, has no connection with the present eviden-
tial question {post, § 1073) whether by silence he has adopted another per-
son's statement so as to make it his own admission. Again, the award of an
arbitrator revises and concludes the parties' rights by virtue of their con-
tractual assent to the award, and hence the tenor of the parties' statements in
submitting the matter to arbitration must be examined ; * but this has no
concern with the question {post, § 1062) whether a statement made to the ar-
bitrators, where the arbitration has failed, is to be excluded as evidence, on the
ground that it is an admission made in the course of an effort to compromise.
1 Notably in Greenleaf, Evidence, §§ 207 ff. surance policy ; defendant's consent to arbitra-
^ 1809, Critoblow v. Perry, 2 Camp. 182. tion, held to make the award receivable; but in
'■ 1820, Batturs v. Sellers, 5 H. & J. 117, 119 this case it was rejected, as the plaintiff himself
(a buyer's silent acquiescence in the seller's had not consented to the submission) ; 1800,
writing of the former's name makes the latter Gregory v. Howard, 3 Esp. 113 (arbitrator to
the agent to write it, so as to satisfy the Statute settle accounts, received to prove the parties'
of Frauds). admissioua, on a plea that the claim sued for
* 1794, Kingston v. Phelps, Peake 227 (in- had been included in the settlement).
122q
§ 1056 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
All these modes in which a party's statements become the basis of contractual
or estoppel rights have no bearing on their use as mere evidence.
It may be added that, in consequence, it is immaterial, when an opponent's
statement is offered as an admission, that it was uttered to a third person and
not to the other party to the cause.^ Evidentially it is still an inconsistent
statement and therefore receivable. If, on the other hand, it were put for-
ward as the basis of an estoppel right, because acted upon by the other party
to the cause, there would be ground for claiming that it must have been made
to him directly or else he would not have been justified in relying upon it ;
and such would be the usual requirement, for purposes of estoppel.
For the same reason, it is no objection to an admission that it was made
after suit begun.^
§ 1057. Quasi-Admissions, as distinguished from Solemn or Judicial Ad-
missions. The law of evidence has suffered, in its most vital parts, from an
ailment almost incurable, — that of confusion of nomenclature. The term
" admissions " exhibits this misfortune in one of its notable aspects. There
are two principles, not at all connected, which for a century or more have
had to be discussed by the aid of a single and common term. One of these
principles is the subject of the present consideration ; it authorizes the re-
ceipt of any statement by an opponent, as evidence in contradiction and im-
peachment of his present claim. Such statements, here referred to in the
loose and usual phraseology as " admissions," should better, with a view to
discrimination and clearness, be designated Quasi-Admissions.
The true Admission, in the fullest sense of the term, is another thing, and
involves a totally distinct principle. It concerns a method of escaping from
the necessity of offering any evidence at all. The former is an item in the
mass of evidence; the latter is a waiver relieving the opposing parti/ from the
need of any evidence. The former is involved in the subject of the present
Book, "What Facts are admissible as Evidence"; the latter is concerned
with the subject of Book IV, " Of what Propositions no Evidence need be
offered"; and is dealt with elsewhere {post, §§ 2588-2595). An Admission,
in the latter and correct sense, is a formal act, done in the course of judicial
proceedings, which waives or dispenses with the production of evidence, by
conceding for the purposes of litigation that the proposition of fact claimed
by the opponent is true. The principal questions that arise in construing its
principle are : What sort of a formal act is necessary ; who may effectively
do that act ; what classes of facts may be thus disposed of ; and how far, in
time, is that act effective ? With this genuine Admission we are not here
further concerned, except in noting the distinction mentioned in the ensuing
section, and also in considering {post, § 1066) the use of prior pleadings as
" 1792, R. V. Neville, Peake 91 (nnisance ; son, Peake 203 (action on a bill of exchange ; a
defendant's bond to the parish where he formerly defendant's admission in an answer in chancery
resided, acknowledginghis trade to be a nuisance, to a bill by other creditors, received); 1853,
received, subject to explanation, " as it shall ap- Chapman v, Twitchell, 37 Me. 59, 62.
pear that this place is more or less like that • 1782, Morris v. Vanderen, 1 Dall. 64, 66 ;
where he before resided "} ; 1791, Grant v. Jack- 1823, Marshall v. Sheridan, 10 S. & B. 268.
1226
§§ 1048-1087] GENEEAL THEORY. § 1058
quasi-admissions. Throughout the present discussion the term " admissions "
will be understood to signify the ordinary or quasi-admission ; the t&rm
"judicial admission" will be used to signify the formal waiver of proof.
§ 1058. Same: Admissions not Conclusive; Explanations; Prior Consistent
Claims; Putting in the "Whole of the Statement. (1) A quasi-admission, of
the present sort, being nothing but an item of evidence, is therefore not in
any sense final or conclusive. The opponent, whose utterance it is,~may none
the less proceed with his proof in denial of its correctness ; it is merely an
inconsistency which discredits, in a greater or less degree, his present claim
and his other evidence. No one would ever have entertained doubts on this
point,^ had not the two doctrines noticed in the preceding sections tended, by
their superficial resemblance to the present doctrine, at certain points to pro-
duce confusion, — namely, the doctrines of estoppel and of judicial admission.
An estoppel, i. e. a representation acted on by the other party, by creating a
substantive right does oblige the estopped party to make good his repre-
sentation, — in other words, but inaccurately, it is conclusive. So, too, but
for an entirely different reason, a judicial admission is conclusive, in the
sense that it formally waives all right to deny, for the purposes of the trial,
i. e. it removes the proposition in question from the field of disputed issues.
But statements which are not estoppels or judicial admissions have no such
quality, and on principle cannot have. This has always been conceded by
the judges, in modern times, and the only instances in which any apparent
contradiction may be found are those in which questions of estoppel (with
which we have here nothing to do) were under discussion :
1829, Bayley, J., in Heane v. Rogers, 9 B. & C. 577, 586 (referring to an admission of
the title of an assignee in bankruptcy) : " There is no doubt but that the express admis-
sions of a party to the suit, or admissions implied from his conduct, are evidence, and
strong evidence, against him. But we think that he is at liberty to prove that such admis-
sions were mistaken or were untrue, and is not estopped or concluded by them, unless an-
other person has been induced by them to alter his condition ; in such a case the party is
astopped from disputing their truth with respect to that person (and those claiming under
him) and that transaction ; but as to third persons he is not bound."
1834, Parke, B., in Riilgwayv. Philip, 1 C. M. & R. 415: "An admission does not
estop the party who makes it ; he is still at liberty, so far as regards his own interest, to
contradict it by evidence." "
^ The following utterance shows how ob- 1849, Kewton v. Liddiard, ib. 925 (same ; the
souvely the true principle was once conceived rule "is applicable to mistakes in respect of
by eminent judges : 1803, Sir W. Grant, M. E., legal liability as well as in re-spect of fact") ;
in Fairlie y. Hastings, 10 Ves. Jr. 123, 127 : 1892, Bush v. Barnett, 96 Cal. 202, 205, 31
"A party is bound by his own admission, and is Pac. 2 ; 1844, Gilbert v. Porter, 2 Kerr N. Br.
not permitted to contradict it." 390, 394 ; 1846, Pay.son v. Good, 3 id. 272, 279 ;
" Accord: 1797, Lnveridge w. Botham, 1 B. 1877, Eaymond ^."Cumminga, 17 N. Br. 544
& P. 49 (attorney's bill, followed by a second (book-account entries) ; 1852, Carter w. Bennett,
bill increasing the charge and adding new items ; 4 Fla. 283, 301, 342 (admission by a "solemn
the Court, while at first confusedly speaking of oath of record," setting np a defence, held open
the former as both "conclusive" and "pre- to explanation); 1847, Solomon v. Solomon, 2
suinptive" evidence, ended by declaring that Ga. IS, 30 (mistake of law may be shown);
"if errors or omissions in the former bill could 1901, Phoenix Ins. Co. v. Gray, — id. — , 38
be proved, they ought to be allowed for ") ; 1849, S. E. 992 ; 1903, Nicholson v. Snyder, — Md.
Newton v. Belcher, 12 Q. B. 921, 924 (mistake — , 55 Atl. 484 (party's answer in bankruptcy) ;
of law as to liability, allowed to be shown) ; 1860, Corser v. Paul, 41 N, H. 24, 31 ; 1896,
VOL. n.— 15 1227 ■^
§ 1058 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
Distinguished from the foregoing principle another question, once in great
vogue, and already here treated {ante, §§ 525-531), namely, whether the prin-
ciple nemo allegans suam turpitudinem audiatur would exclude the testimony
of one who came forward to testify to his own prior falsity. So far as such
a doctrine was ever recognized (and it is now wholly repudiated), it rested on
the ground of moral obliquity, and applied to all witnesses alike, and not
merely to parties, who indeed at that time were not qualified to testify
at all.»
(2) It follows that an opponent whose admissions have been offered against
him may offer any evidence which serves as an explanation for his former
assertion of what he now denies to be the fact.* This may involve the show-
ing of a mistake,® or the evidencing of circumstances which suggest a differ-
ent significance to the words. The modes of explaining away a witness' self-
contradictions (ante, § 1044) suggest analogies here.
(3) But such explanations must of course not violate other and independ-
ent principles of evidence. In particular, the rule against opinion-testimony,
(misguided as it is) may be construed to forbid the party to testify to his
real meaning and intention in making the statement.® Moreover, an explana-
tion which attempts to rehabilitate the party by showing that he has, at still
other times, made claims consistent with his present one is perhaps obnoxious
to the general principle which forbids a witness' credit to be restored in this
manner.''
(4) In this place, moreover, there often comes into application the general
principle of Completeness, which permits the remainder of any utterance to
be put in evidence by the other party, in order to present the full and correct
significance of the fragment which the first party may have offered. This
principle affects admissions as well as all other kinds of verbal utterances,
and is elsewhere examined, in its bearing upon a party's admissions {post,
§§ 2099, 2113, 2115).
The effect of this principle is sometimes difficult to distinguish from that
of the Verbal Act doctrine {post, § 1772). The latter is concerned with the
Hearsay rule, and defines the classes of utterances to which that rule is not
Welch V. Kicker, 69 Vt. 239, 39 Atl. 200 (ac- (account filed) ; 1897, Posey v. Hanson, 10
count-book entries, as to the person charged) ; D. 0. App. 497, 508 (aflRdavit by oue who could
1902, Laflam u. Missisquoi PulpCo., 74id. 125, not read) ; 1896, Smith u. Mayfield, 163 111.
52 Atl. 526. 447, 45 N. E. 157 (the amount agreed to be due
Distinguish the effect of the parol evidence the admittant); 1870, Janvrin v. Fogg, 49 N. H.
rule, post, §§ 2413, 2430, which forbids showing 346; 1897, Holmes v. "W. K. E. Co.', 20 R. I.
a mistake in a formal act constituting a sub- 289, 38 Atl. 946 (words spoken jocularly, not an
stantive right. admission ; here, of an agent) ; 1903, Boyer v.
* The following case illustrates the mingling St. Louis, S. F. & T. E. Co., — Tex. — , 76
ofthese two questions: 1829, Freeman u. Walker, S. W. 441 (assessors' books).
6 Greenl. 68, 71 (master's action for wages ; " Ante, note 2.
whether defendant's allegation in a petition to ' 1897, Sutter v. Rose, 169 111. 66, 48 N. E.
the Federal authorities, relating to the master's 411 (letter admitting knowledge, not allowed to
misconduct, was disputable by him in this cause, be explained by writer's intention). This appli-
not decided). cation of the rule is examined post, §§ 1954,
* 1867, Reid v. Warner, 17 Low. Can. 4(87 1963-1972.
(handwriting) ; 1868, Smith v. Gifford, 33 Ala. ' The cases are considered under that head,
172; 1880, Dabneyv. Mitchell, 66 id. 495, 505 post, § 1133.
1228
§§ 1048-1087] OFFEES TO COMPROMISE. § 1061
applicable, *'. e. it serves to remove the objection which that rule would other-
wise interpose. The various sorts of statements which it thus serves to
exempt from the Hearsay rule are elsewhere summarized (post, §§ 1777-
1789) ; but it may here be noted that any statement of the opponent, made
at the time of certain conduct of his which has been adduced as equivalent to
an admission, may be offered in evidence so far as it presents the true com-
plexion of his conduct and takes from it the quality of an admission.^
2. What Statements are Admissions.
§ 1060. Implied Admissions ; Sundry Instances. Whether from a certain
express utterance some further statement is to be implied as necessarily in-
cluded, or whether in certain conduct the utterance of a certain statement
may be implied, is so much a question of the circumstances of each particular
instance as hardly to become the legitimate subject of precedents. There
are rulings recorded, but they depend upon no common principle.^
§ 1061. Hypothetical Admissions; (1) Offer to Compromise or Settle a
Claim; General Principle. Whether an offer to compromise a claim, or to
settle it by a partial or complete payment, amounts to an admission of the
truth of the facts on which the claim is based and is therefore receivable in
evidence, is a question which has given rise to prolonged discussion and to
varied but often unsatisfactory attempts at explanation. The solution is a
simple one in its principle, though elusive and indefinite in its application ;
it is merely this, that a concession which is hypothetical only can never be
' 1846, Yarborough v. Moss, 9 Ala. 382, 387 to show indebtedness, admitted) ; 1889, White
(claim of interpleader to slaves attached by the v. Merrill, 82 Gal. 14, 17, 22 Pac. 1129 (adniis-
defendant as creditor of T. ; claimant had deliv- sion by defendant that a verdict against him at
ered the slaves to the sheriff when attached, and a former trial was just, received) ; 1869, Eyer-
was allowed to prove what he then said: "if son j). AMngton, 102 Mass. 525^ 526, 530 (plain-
the plaintiff insists on this delivery for any pnr- tiff's statements, after a prior trial of an action
pose as evidence [by admissions], he is bound to for the same personal injury, when warned by a
take it with all the explanatory declarations and friend for walking off so fast, that " it was all
circumstances, as they constitute a part of the over now " and that " he knew how to play it on
transaction itself. . . . If the entire declaration the judge," held admissible); 1898, Bertha
■was received, it might appear that the claim of Mineral Co. v. Morrill, 171 Mass. 167, 50 N. E.
title would be perfectly consistent with the de- 534 (direction on goods sent, together with bill,
livery ") ; 1860, Yates v. Shaw, 24 111. 368 etc., received as an admission as to whom credit
(boundary dispute, the planting of a hedge by was given); 1899, Manning v. Lowell, 173 id.
defendant on the line claimed by plaintiff, hav- 100, 53 N. E. 160 ( value of land taken by emi.
ing been received as an admission, defendant's nent domain ; owner's prior valuation given to
declarations of the line's incorrectness, while assessor, admitted ; price accepted by owner at
planting, received to explain away that in- attempted sale by him, admitted); 1897, Bank-
ference). ing House v. Darr, 139 Mo. 660, 41 S. W. 227
^ 1818, Dickinson v. Coward, 1 B. & Aid. (oath to a tax-list received as an admission ;
677, 679 (assumpsit by assignee in bankruptcy ; compare the cases of assessors' books, cited post,
defendant's attendance to make claim and pay § 1640); 1852, Nealley v. Greenongh, 25 N. H.
balance, at a meeting of the bankrnptcy commis- 825, 331 (a statement, when served with a writ,
sioners, held sufficient ; L. C. J. EUenborough that he was "surprised this claim had not been
" I take it to be quite clear that any recognition paid" and had "meant to have sent on the
of a person standing in a given relation to others money to pay it " is an admission of every fact
iFi prima facie evidence, against the person mak- essential to the claim). See also the citations,,
ing that recognition, that that relation exists"); post, § 1071 ; and ante, §§ 1040-1042, for anal-
1833, Storr v. Scott, 6 C. & P. 241 (charging A, ogous instances.
held receivable as an admission that credit was For admissions by using or approving a wit-
given to A, not to B) ; 1 898, Turrentine v. Grigs- ness' testimony or deposition, see post, § 1075.
by, 118 Ala. 380, 23 So. 666 (an unsigned note,
1229
§ 1061 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
treated as an assertion representing the party's actual belief, and therefore
cannot be an admission ; and, conversely, an unconditional assertion is re-
ceivable, without any regard to the circumstances which accompany it. But,
before considering the bearing of this solution, it is necessary to dispose of
some inadequate theories that have been judicially given some prominence :
(a) It has in Massachusetts been formally propounded, and has elsewhere
sometimes been suggested, that there is a privilege protecting as confidential
all overtures of settlement made to the opposing party, ■ — and this upon a
principle analogous to that of the privileges for confidential communications
(post, §§ 2885-2396) :
1845, Dewey, J., in Dickinson v. Dickinson, 9 Mete. 471, 474 : " The rules of evidence
exclude, to some extent, and under certain circumstances, the declarations and admissions
of a party. Thus, the more fully to protect the rights of parties litigating, all their com-
munications with counsel are held to be privileged. Evidence of this chai<acter has always
been excluded, and the rule has been so broad as to exclude all admissions thus made.
Another instance of exclusion of testimony is that of an offer of one party to another to
pay a sum of money, or other valuable consideration, with a view to a compromise of the
matter in controversy. It must be permitted to men endeavor to buy their peace, with-
out being prejudiced by a rejection of their offers. Hence, evidence of such offers or
proposals is irrelevant, and they are not to be taken as admissions of the legal liability of
the party making them. But here a distinction exists between the cases of an offer to pay
money to settle a controversy, and ^n admission of particular facts, connected with the
case, made by a party pending a negotiation for a compromise. The more convenient
rule might have been that which is applicable to communications between client and at-
torney, excluding, as testimony, everything communicated in this relation ; which rule, if
applied here, would exclude every admission made during the interview which was had
for such compromise. To some extent this rule was attempted to be introduced, exclud-
ing all admissions of the parties, even admissions of particular facts, where it appeared
that they were expressly stated at the time ' to be made without prejudice.' But the ex-
ception was soon introduced, that the evidence was competent where it was the admission
of a collateral fact."
This theory is consistent enough with the general theory of privileged
communications (post, § 2285), namely, that expeditious and extrajudicial
settlements are to be encouraged and that privacy of communication is
necessary in order to encourage them. In policy, however, it may bfr doubled
whether the recognition of such a privilege is in fact necessary in order to
foster private settlement, or whether in fact the good that might be done by
the diminution of litigation under such a privilege would be greater than
the justice that is effected by the free use of the evidence made available
through denying the privilege. At any rate, whatever the arguments of
policy, the further and vital objection remains that the supposed privilege
does not fit the rule of law as it is everywhere accepted and applied.
Nowhere but in Massachusetts has this theory been definitely advocated ;
and even by its own expounders it is conceded not to explain the actual rule
of law.
(b) Another theory, resting apparently on some notion of contract, is that
an express reservation of secrecy (by the words " without prejudice ") assimi-
1230
§§ 1048-1087] OFFERS TO COMPKOMISE. § 1061
lates the offer to a contractual offer, so that if the terms are not accepted the
offer is null and can have no evidential effect :
1871, Mellish, L. J., in Re River Steamer Co., L. R. 6 Ch. App. 822, 832 : " If a man
says his letter is without pi-ejudice, that is tantamount to saying, ' I make you an offei'
which you may accept or not, as you like ; but if you do not accept it, the having made it
is to have no effect at all.' It appears to me, not on the ground of bad faith, but on the
construction of the document, that when a man says in his letter it is to be without pre-
judice, he cannot be held to have entered into any contract by it if the offer contained in
it is not accepted."
1889, Li7idlet/, L. J., in Walker v. Wilsher, L. R. 23 Q. B. Div. 335 : " What is the
meaning of the words ' without prejudice' ? I thmk they mean, without prejudice to the
position of the writer of the letter if the terms he proposes are not accepted. If the terms
proposed in the letter are accepted, a complete contract is established, and the letter, al-
though written without prejudice, operates to alter the old state of things and to establish
a new one."
It is hardly necessary to point out that the analogies of a contract-right
can have no bearing on the probative use of such statements ; since, con-
ceding that an unaccepted offer amounts to nothing contractually, there may
none the less remain for it an evidential value, over and above its defeated
contractual purpose. Moreover, the practical objection to this theory is that,
like the foregoing one, it does not adequately explain the rule of law ; for,
by general consensus, offers of compromise which do not contain the express
words " without prejudice,'' may still be inadmissible in evidence, and con-
versely. Nevertheless, a professional tradition, especially among attorneys
and solicitors in England, long enshrined the rule of thumb that a letter
headed by the shibboleth "without prejudice" was safe from subsequent
use as an admission, and that this phrase was necessary to protect it ; ^ and
this tradition has helped to cloud the discussion and to confuse the long line
of rulings.
(c) The true reason for excluding an offer of compromise is that it does not
ordinarily proceed from and imply a belief that the adversary's claim is well
founded, but rather a belief that the further prosecution of that claim, whether
well founded or not, would in any event cause such annoyance as is preferably
avoided by the payment of the sum offered ; in short, the offer implies merely
a desire for peace, not a concession of wrong done :
1828, Bayley, J., in Thomson v. Austen, 2 Dowl. & Ry. 358, 361 ; " The essence of an
offer to compromise is that the party making that offer is willing to submit to a sacrifice
and to make a concession."
1839, L. C. Cottenham, in Tennant v. Hamilton, 5 CI. & F. 133: " Money paid upon a
complaint made, paid merely to purchase peace, is no pi-oof that the demand is well
"• The following amusing anecdote illustrates she brought an action for breach of promise of
the invet«racj' of this notion : 1840, Law and marriage against him. When his letters were
Lawyers, II, 305: "Mr. Chitty relates an produced on the trial, it appeared that he had
anecdote of a young attorney who had been alwaj's concluded — ' this loithcut prejudice, from
carrying on a correspondence with a young yours faithfully, C. D.' The judge facetiously
lady, in which he had always, as he thought, left it to the jury to determine whether these
expressed himself with the greatest caution, concluding words, being from an attorney, did
Finding, however, that he did not perform what not mean that he did not intend any prejudice to
he had led the lady to believe that he would, the lady, and the jury found accordingly."
1231
§ 1061 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
founded. ... [If the defendant had so paid money here], that would be no evidence of
the daniage ; it is money paid to buy peace and to stop a complaint. It is very often a
wise thing, liowever unfounded a complaint may be, for parties to pay a sum of money in
order to quiet the party making the complaint.
1S55, Thomas, J., in Harrington v. Lincoln, 4 Gray 563, 567 : " Peace is of such vforth
that a reasonable man may well be presumed to seek after it even at the cost of his strict
right and by an abatement fi-om his just claim. The offer which a man makes to purchase
it is to be taken, not as his judgment of what he should receive at the end of litigation,
but what he is willing to receive and avoid it. . . . If the plaintiff had made the ofier of
compromise in open town-meeting, proof of it would have been excluded.
By this theory, the offer is excluded because, as a matter of interpretation
and inference, it does not signify an admission at all. There is no conces-
sion of claim to be found in it, expressly or by impUcation. It would
follow, then, conversely, that if a plain concession is in fact made, it is
receivable, even though it forms part of an offer to compromise ; and this
much has long been well understood:
1S28, Richardson, C. J., in Sanborn v. Neilson, 4 N. H. 501, 509 : " The reason why a
mere offer of money or other thing by viray of compromise is not to be evidence against
him who makes it, is very plain and easily understood, — such an offer neither admits nor
ascertains any debt, and is no more than saying that so much will be given to be rid of
the controversy. But where the ofifer has been grounded upon an express admission of a
fact, and that fact afterwards comes to be controverted between them, there seems to be
no ground on which the evidence of the offer can be excluded. Thus if A sue B for $100,
and B offer to pay $20, this offer shall not be received as evidence, because it may have
been made merely for the sake of peace where nothing was due. But in such a case, if
B admit expressly that $20 are due, and offer to pay that sum, then it seems to us that
both the admission and the offer are evidence. We are, therefore, of opinion, that the
offer made by the defendant in this case was, under the circumstances, admissible in
evidence."
So, then, it is apparent that the occasion of the utterance is not decisive ; that
is, it may or may not have been accompanied by a reservation or an injunc-
tion of secrecy ; and it may or may not have occurred during negotiations
for a settlement or a compromise. What is important is the form of the
statement, whether it is hypothetical or absolute. If, making all implications
from the context and the circumstances, the statement assumes the adversary's
claim to be well grounded for the mere ptirpose of discussing a settlement
which will avoid litigation, then nothing is actually admitted in any true
sense ; and therefore the party making it is in none the worse condition
for having omitted the phrase " without prejudice," nor for having offered
the full amount of the claim without any pretence of compromise. If on the
other hand, the statement is absolute, so far as appears, it is not saved by
any cabalistic phrase nor by its occurrence in the course of compromise-
negotiations. This solution of the question is amply elucidated in the follow-
ing passages :
1822, Hosmer, C J., in Hartford Bridge Co. v. Granger, 4 Conn. 142, 148 : "The law
on this subject has often been misconceived ; and it is time that it should be firmly estab-
lished. It is never the intendment of the law to shut out the truth ; but to repel any
1232
§§ 1048-1087] OFFERS TO COMPROMISE. § 1061
inference which may arise from a proposition made, not with design to admit the exist-
ence of a fact, but merely to buy one's peace. If an admission, however, is made, because
it is a fact, the evidence to prove it is competent, whatever motive may have prompted to
the declaration. In illustration of this remark, it may be observed, that if A offer to B
ten pounds, in satisfaction of his claim of an hundred pounds, merely to prevent a suit,
or purchase tranquillity, this implies no admission that any sum is due ; and therefore,
testimony to prove the fact must be rejected, because it evinces nothing concerning the
merits of the controversy. But if A admit a particular item in an account, or any other
fact, meaning to make the admission as being true, this is good evidence, although the
object of the conversation was to compromise an existing controversy. The question to
be considered, is, what was the view and intention of the party in making the admission ;
whether it was to concede a fact hypothetically, in order to effect a settlement, or to de-
clare a fact really to exist. There is no point of honor guarded by the Court, nor ex-
clusion of evidence lest it should deter from a free conversation. But testimony of
admissions or declarations taking facts for granted, not because they are true, but because
good policy constrains the temporary yielding of them to effectuate a greater good, is not
admissible ; truth being the object of evidence."
1889, Doe, C. J., in Colburn v. Groton, 66 N. H. 151, 156, 28 Atl. 95 : " The preliminary
question always is, not merely whether an admission of a fact was made during a settle-
ment or negotiation, but whether a statement or act was intended to be an admission.
It is a question, not of time or circumstances, but of intention. On that question the time
and circumstances may be material evidence. . . . An offer of payment, whether accepted
or rejected, is evidence, when the party making it understood it to be and made it as an
admission of hi.s liability. It is not evidence when he made it for the purpose of averting
litigation, not intending to admit his liability. . . . An entire claim may be paid to avoid
a law suit, the payer intending to admit nothing but his desire for peace. . . . ' Compro-
mise ' generally signifies a settlement in which there is a concession on both sides. Used
in that sense, the word does not describe all cases in which peace is bought without an
admission of liability, and is not an adequate statement of the law."
mn, Schmucker, J., in Pentz v. Ins. Co., 92 Md. 444,48 Atl. 139: " He was then
asked what oifer of settlement he had made, and the Court, upon the objection of the
defendant, excluded the question. The word ' settlement,' as ordinarily used, may mean
a compromise for peace's sake of a claim the validity of which is denied, or it may signify
the payment of a claim to the extent to which it is conceded to be due. If the witness in
the present case, by the use of the expression ' settlement,' meant it in the strict sense of
a claim under the policy, although no loss was admitted, evidence of the compromise was
not admissible. If, on the contrary, he meant, as his previous answers seem to indicate
that he did, that there was a conceded loss under the policy, which he wished to settle,
the dispute being merely as to the amount of the loss, the evidence was admissible . . .
as sufficient evidence to go to the Court sitting as a jury, from which he might infer that
the refusal to pay a greater amount of loss was upon other grounds than failure to furnish
pioof of loss, and that, therefore, there had been a waiver by the defendant of such proof.
If the answer of the witness had been that the defendant had offered to settle the loss
under the policy by payment of an amount which was admitted [by him] to be due, it
■would have been admissible."
{d) Certain discriminations must of course be made : (1) When the ques-
tion of cods or of laches arises, and depends upon whether an offer of payment
before trial had been made, the fact of such an offer may be evidenced, as
made relevant by the rule of costs.^ (2) The payment of money into court
' 1862, 'Williams v. Thomas, 2 Dr. & Sm. 1849, Collier v. Nokes, 2 C. & K. 1012 ; 1852,
29, 37 (costs) ; 1889, Walker v. Wilsher, L. E. Romilly, M. R., in Jones v. Foxall, 15 Beav.
23 Q. B. D. 335 (costs ; see citation ^os<, § 1062); 388, 397 (to "account for the lapse of time ").
1233
§ 1061
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
before trial is a procedure sometimes employed to narrow tlie issues in a
cause and to affect the ultimate burden of costs. This procedure has no
concern with the present matter of evidence.^ (3) An offer of compromise
from an unauthorized person cannot amount to an admission of the party
himself.* Supposing it to be an admission in terms, then the question
whether it can be used depends on whether the person making it is (upon
the principles of §§ 1069-1087, post) one whose admissions may be used to
affect the party. (4) When an offer has been accepted, it may, of course, be
proved as the basis of a contract sued upon.^
§ 1062. Same; State of the Law in various Jurisdictions. The correct
solution of theory (noted in § 1061 (c) ) seems to be fairly well accepted
to-day, although the precedents within some jurisdictions, and particularly
the long line of precedents in England, are difficult to reconcile.^ The only
3 See Brown v. People, 3 Colo. 115 (1876).
But so far as the payment into court is a con-
ditionaZ admission in the nature of an offer to
settle, it should not be made known to the jury ;
and such an express provision sometimes occurs
in statutes : Eng. Eules of Court 1883, Ord. 22,
R. 22 ; Rule 9 of Nov. 1893 ; N. Sc. Rules of
Court 1900, Ord. 22, R. 17.
* 1877, State V. Jaeger, 66 Mo. 173 (offer
from defendant's wife).
» 1884, Vardon r. Vardon, 6 Ont. 719, 728 ;
1884, Securities Co. v. Richardson, 9 id. 182.
^ The rulings are as follows (and compare the
cases cited under self-contradiction, ante, § 1040,
and conduct evidencing consciousness of guilt,
ante, §§ 282, 284). Snaland: 1718, Turton e>.
Bensou, 1 P. Wms. 496, 497 (bond ; a ruling
that ' ' Mr. Turton's offers made and not accepted
signified nothing ; that Lord Cowper had often
said a man should not be bound by an offer
made during a treaty which afterwards broke
off, or upon terms that were not accepted, " was
approved by L. C. Parker) ; 1716, Harman v.
Vanhattan, 2 Veru. 717 (bond ; an offer to sur-
render it, on the opponent's making up certain
money, disregarded by L. C. Harcourt ; " it was
but nudum pactum, a voluntary offer, and on
condition that the money was then paid, and it
wa.s not complied with ") ; 1750, Baker v. Paine,
1 Ves. Sr. 456, 459 (L. C. Hai-dwicke : "The
offers by defendant are material ; though, gen-
erally speaking, offers by the parties by way of
compromise are not to have much weight in the
merits of the case, nor to be made use of") ;
1790, Slack V. Buchanan, Peake 5 (L. C. J.
Kenyon said that he had hitherto not received
admissions made under a reference, but acknowl-
edged that he had gone too far ; in future, he
would "reject none but .such as are merely con-
cessions for the purpose of making peace and
getting rid of a suit ") ; 1794, Walbridge v.
Kennisou, 1 Esp. 143 (during a treaty for settle-
ment, the defendant, being asked as to his liand-
writing on a bill, "admitted that it was his" ;
L. C. J. Kenyon received this, since, though
"any admission . . . obtained while a treaty
was depending, on the faith of it," was inad-
missible, yet the identity of handwiiting " stood
on a different foundation ; it was matter no way
connected with the merits of the cause and
which was capable of being easily proved by
other means ") ; 1800, Gregory x: Howard, 3
Esp. 113 ("facts admitted before arbitrators "
can be proved by them) ; 1809, Gumming v.
French, 2 Camp. 106, note (on demand for
settlement, the drawer of a bill offered to give
another bill ; held, that this was a conditional
offer of compromise, and not an acknowledg-
ment of liability) ; 1823, Thomson v. Austen, 2
Dowl. & R. 358 (the plaintiff said to the witness
"he was so anxious to get out of the law that
he would refer the question in dispute to the
witness as arbitrator," and asked him to tell
this to the defendant, to get him to compromise,
at same time admitting the receipt of money on
account, held on the facts "not to have origin-
ated in any desire to compromise," and there-
fore to be admissible) ; 1827, Doe v. Evans, 3
C. & P. 219 (abstract of title used in an arbitra-
tion, held to be not virtually a part of a com-
promise, but an ordinary admission) ; 1828,
Lofts V. Hudson, 2 Man. & Ry. 481 (agi'eement
to pay a litigated claim and two-thirds of the
costs, held by a majority, to be a compromise,
and at auy rate not such au admission of lia-
bility as to allow recovery of the one-third costs
in a suit on the original claim) ; 1830, Waymau
V. Hilliard, 7 Bing. 101 (on a demand of £40,
defendant "offered to give £17"; Bosanquet,
J.: "There has been no acknowledgment of
defendant here ; the defendant merely makes an
an offer to purchase peace " ; and so it was held
not to supj)ort an action upon an account
stated) ; 1830, Cory v. Bretton, 4 C. & P. 462
(letter declaring at the opening that it was "not
to be used in prejudice of my rights or in any
future arrangement," excluded ; Tindal, C. .1. :
" It is clearly a conditional statement ") ; 1S30,
"Wallace v. Small, 1 M. & M. 446 (defendant's
admission of the contract, while refusing to raise
his offer of payment, received, because " not said
to be without prejudice," and thus unrestricted
" as to confidence ") ; 1830, Watts v. L;iwson, ih.
447, note (similar) : 1835, Thomas v. Jlorgan, 2
C. M. & R. 496, Exch. (on demand for com-
pensation for injury done by the defendant's
1234
§§ 1048-1087]
OFFERS TO COMPROMISE.
1062
phrasing that calls for special notice is that introduced in certain earlier
New York and Massachusetts cases, and made popular by Professor Green-
dogs, he said : "if they had done it he would
settle for it " ; held, that this was " a fact to go
to the jury, yet it ought to have little or no
weight at all with them, for the offer may have
heen from motives of charity, without any ad-
mission of liability at all"); 1838, Healey u.
Thatcher, 8 C. & P. 388 (Gurney, B., excluded
a letter beginning " without prejudice " and
offering to accept satisfaction) ; 1842, Paddock
V. Forrester, 3 Man. & Gr. 903, 919 (trespass ;
letter of plaintiff, demanding compensation, but
written as an " offer without prejudice, in case
it is not agreed to," held inadmissible ; and the
answer thereto excludeil also, though it did not
contain such a reservation; Tindal, C. J. : "It
is of great importance that parties should be
left unfettered Ijy correspondence which has been
entered into upon the understanding that it is
to be without prejudice"); 1846, Jardine ii.
Sheridan, 2 G. & K. 24 (statement made to the
opponent's attorney, "with the object of ob-
taining a compromise," excluded) ; 1852, Hogh-
ton V. Hoghton, 15 Beav. 278, 315, 321 (letters
written, after dispute begun, with a view to
compromise and "without prejudice," ex-
cluded; Eomilly, M. E. : "Such communica-
tions made with a view to an amicable arrange-
ment ought to be held very sacred " ; even if
the correspondence contained " any admission
affecting the plaintiff's rights, I should disregard
such admissions made solely with a view to com-
promise " ; 1852, Jones v. Foxall, ib. 388, 396
(Eomilly, M. E., excluded "offers made with-
out prejudice," as being merely an attempt "to
convert offers of compromise into admisiiions ") ;
1862, Williams v. Thomas, 2 Dr. & Sm. 29, 37
(defendant's offer " without prejudice " to com-
promise, made before bill filed, held available
by defendant to affect the costs ; but " it could
not be used against liim") ; 1871, lie Eiver
Steamer Co., L. E. 6 Ch. App. 822, 831 (offer
made " without prejudice," said obiter to be in-
sufficient to ■ revive a debt barred by statute ;
see quotation, Sitpj-a) ; 1872, Richards u. Gellatly,
L. E. 7 C. P. 127, 131 (false representations as
to a ship's equipment; complaints of the plain-
tiffs fellow-passengers, followed by settlement
by the defendant, excluded) ; 1889, Walker v.
Wilsher, L. E. 23 Q. B. Div. 335 (letters written
' ' without prejudice " during proposals for settle-
ment, excluded, on an issue of probable cause
affecting costs ; Williams v. Thomas doubted) ;
1893, lie Daintrey, 2 Q. B. 116 (letter by debtor
to creditor offering to compound the debt and
declaring himself unable to pay and about to
suspend if no composition could be made, headed
"without prejudice"; held admissible, not
being an offer of terms of settlement in a dispute
or negotiation) ; N. Br. : Cons. St. 1877, c. 37,
§ 131 (no unaccepted offer to suffer judgment
"shall be evidence against the party, making the
same," in that or any other action) ; 1890,
Stewart v. Muirhead, 29 N. Br. 273, 279 (an
offer of a specific sum in settlement is admis-
sible, unless stated to be confidential or without
prejudice) ; Ont. : 1866, Burns v. Kerr, 13 IT. C.
Q. B. 468 (letters stated to be "without pre-
judice," not admissible ; with some hesitation) ;
1869, Clark v. G. T. E. Co., 29 id. 136, 147
(defendant's letter proposing without prejudice
a submission of the plaintiff's injuries to experts,
and agreeing to abide their decision, and tlie
answer accepting the ofl'er, received on the facts,
to rebut the imputation of bad faith, on behalf
of the plaintiff) ; 1883, York Co. c. Toronto G.
E. & C. Co., 3 Ont. 584, 593 (offeis made with-
out prejudice, held inadmissible); 1886, Pirie v.
Wyld, 11 id. 422, 427 ("all communications
made under the words ' without prejudice ' "
are inadmissible) ; 1887, Hartney v. Ins. Co.,
13 id. 581 (letter offering a settlement, ad-
mitted, the reservation "without prejudice"
here applying only to the waiver of conditions
of the policy ; but here the olijection was not
properly taken) ; Alabama: 1896, Feibelman v.
Assur. Co., 108 Ala. 180, 19 So. 540 (offer of
compromise, excluded) ; Alaska: C. C. P. 1900,
§§ 480, 683 (like Or. Annot. C. 1892, §§ 520,
856); California: C. C. P. 1872, §997 (offer
to allow judgment to be taken for a specified
sum ; " if the notice of acceptance be not given,
the offer is to be deemed withdrawn, and can-
not be given in evidence upon the trial ") ; C.
C. P. § 2078 ("an offer of compromise is not an
admLssion that anything is due") ; 1896, Eose
V. Eose, 112 Cal. 341, 44 Pac. 658 (offer by a
husband to his wife to divide the property,
describing it as community property ; that
statement admitted, not being affected by the
compromise-concessions); Colorado: St. 1893,
p. 303, § 1 (written offer to allow judgment in
justice's court, if not accepted, inadmissible) ;
C. C. P. 1896, § 281 (unaccepted offer to allow
judgment, not admissible) ; 1890, Patrick v.
Crowe, 15 Colo. 543, 554, 25 Pac. 985 (proposi-
tions of compromise are inadmissible ; otherwise
of the admission "of any independent fact" in
the course of negotiations) ; 1894, Kutcher w.
Love, 19 id. 542, 544, 36 Pac. 152 (an admission
made without reservation during compromise
negotiations is receivable) ; 1899, Chicago B. &
Q. E. Co. V. Eoberts, 26 id. 329, 57 Pac. 1076
(offers of compromise, inadmissible) ; 1899,
Thomas v. Carey, ib. 485, 58 Pac. 1093 ("un-
accepted offer of compromise," inadmissible) ;
Connecticut: 1822, Hartford Bridge Co. v.
Granger, 4 Conn. 142, 148 (an admission, in-
tended distinctly as such, is receivable though
made in the course of an attempt to compromise ;
see quotation supra; Peters, J., diss.); 1824,
Fuller!). Hampton, 5 id. 416, 418, 426 (similar) ;
1836, Stranah.an v. East Haddam, 11 id. 507,
512 (authority to agent to iiay a certain sum on
receiving a release, held not admissible) ;
Georgia : 1833, Hicks v. Thomas, Dudley 218
(if an admission made "not with a view of
avoiding a suit or to buy one's peace against a
doubtful claim, but from a consciousness of the
truth of the fact," it is receivable ; hence the
motive is important) ; 1853, Molyneaux «.
1235
1062
EXTKAJUDICIAL ADMISSIONS.
[Chap. XXXV
leaf's treatise, in the form that a "distinct"' or "independent admission of a
fact " is receivable. This inadequate expression (made more misleading by
Collier, 13 Ga. 406, 414 ("the condition, tacit
or express, that no advantage will be taken of
the admission, it being made with a view to and
in furtherance of an amicable adjustment, is the
test of this rule of evidence ") ; 1854, Parker v.
Walden, 16 id. 27, 30 (letter held not an offer
of compromise, on the facts) ; 1859, Lucas v.
Parsons, 27 id. 593, 629, 631 (reply of a party
when rejecting a compromise, admitted) ; Code
1895, § 5194 ("admissions or propositions made
with a view to compromise," are inadmissible) ;
1869, Frain v. State, 40 Ga. 529, 534 (under the
Code ; an offer to pay, if the case was settled,
excluded) ; 1873, McElrath v. Haley, 48 id.
641, 647 (the Code "enlarges the common-law
rule, which did not exclude the admission of
distinct facts") ; 1878, Tufts v. Du Bignon, 61
id. 322, 326 (offer of compromise, excluded) ;
1879, Scales u. Shackleford, 64 id. 170, 172
("independent statements of truth," even
"though made while the parties were trying to
settle," are admissible) ; 1883, Keaton v. Mayo,
71 id. 649, 652 ("any fact admitted as true
without such reference to compromise would be
admissible," but not facts "admitted as an in-
ducement to reach such settlement or com-
promise ") ; 1884, Sasser v. Sasser, 73 id. 275,
283 (defendant's refusal to settle, admitted) ;
1884, Mayor v. Minor, ib. 484, 489 (offer of
money to prevent rebuilding of a dam alleged to
be a nuisance, excluded) ; 1885, Hatcher v.
Bowen, 74 id. 840 (" offer to pay a debt with »
mule, not made pending any negotiations to
compromise," received) ; 1893, Akers v. Kirke,
91 id. 590, 18 S. E. 366 (admissions after an
offer of settlement but independent of it, re-
ceived) ; 1891, Emery o. Atlanta R. E. Ex-
change, 88 id. 321, 331, 14 S. E. 556 ("It is
not only propositions [to settle], but also 'ad-
missions ' made with a view to compromise,
which are not proper evidence ") ; 1900, Teasley
V. Bradley, 110 id. 497, 35 S. E. 782 (an offer
of settlement, conceding a demand upon cer-
tain terms, and not as a part of a compromise,
admitted) ; Idaho: Eev. St. 1887, § 4870 (un-
accepted offer to allow judgment, not admis-
sible) ; 1888, Sebree v. Smith, 2 Ida. 329, 16
Pac. 915 (unaccepted offer of settlement, held
inadmissible) ; Blinois : 1874, Barker v. Bush-
nell, 75 111. 220, 222 (offer to settle for less than
the value in controversy, excluded) ; Indiana:
Eev. St. 1897, §§ 527. 528 (unaccepted offer to
allow or to confess judgment, according to stat-
ute, not to be used in evidence) ; 1844, Wilt v.
Bird, 7 Blackf. 258 (an admission " consti-
tuting in itself the point yielded for the sake of
peace" is to be excluded, but not "an inde-
pendent fact admitted to be true ") ; 1857. Gates
V. Kellogg, 9 Ind. 506 (admission made during
a settlement may be receivable, unless made
" not because the fact is so, but expressly or
clearly for the sake and as a part of the com-
promise ") ; 1867, Pattison u. Norris, 29 id.
165 (obscure) ; 1878, Board v. Verbarg, 63 id.
107, 111 (offer to release for a certain sum, ex-
cluded) ; 1878, Dailey v. Coons, 64 id. 545,
547 (offer to pay half the claim, excluded) ;
1888, Binford v. Young, 115 id. 174, 176, 16
N. E. 142 (Wilt V. Bird, approved) ; 1888,
Louisville N. A. & C. R. Co. v. Wright, ib. 378,
390, 16 N. E. 145, 17 N. E. 584 (same) ; Imaa :
Code 1897, §§ 3817-3819 (unaccepted offer to
confess judgment, not to be consiilerf d) ; 1890,
State 0. Lavin, 80 la. 565, 558, 46 N. W. 553
(an offer by way of compromise is inadmissible ;
but an " admission of particular facts, though
made during a treaty of compromise," is receiv-
able) ; 1896, Kassing v. Walter, — id. — ,
65 N. W. 832 (offer of compromise, inadmis-
sible) ; 1897, Houdeck v. Ins. Co., 102 id. 303,
71 N. W. 354 (similar) ; 1903, Rudd v. Dewey,
— id. — , 96 N. W. 973 (offer of compromise,
not containing an admission of fact, excluded) ;
Kansas: 1879, Central B. U. P. R. Co. v. But-
man, 22 Kan. 639, 642 (admissions contained
in a letter offering to compromise, received) ;
Kentudcy: 1827, Evans v. Smith, 5 T. B. Monr.
363 ("offers of suras, prices, or payments, made
during an attempt to compromise," are not
receivable ; otherwise, of an acknowledgment of
facts made pending a negotiation for settlement) ;
1900, Tyler v. Hamilton, 108 Ky. 120, 55 S. W.
920 (statute applied); 1900, Kelley v. Combs,
— id. — , 57 S. W. 476 (statute applied) ;
1902, Illinois C. R. Co. v. Manion, —id. — ,
67 S. W. 40 (independent admission, made in an
offer of compromise, admissible) ; C. C. P. 1895,
§ 640 (offer to confess judgment for a money
claim " shall not be deemed to be an admission
of the cause of action or amount to which the
plaintiff is entitled, nor be given in evidence
upon the trial") ; Louisiana: 1812, Delogny v.
Rentoul, 2 Mart. La. 175 ("Proposals made
while a compromise is on the carpet do not
bind ; but conversation.s in which a fact is dis-
closed may be admitted"); 1841, Agricultural
Bulk V. Bark Jane, 19 La. 1, 11 ("1 am willing
either to sell the ship at a low price, or charter
her, so as to pay what I may be indebted to the
bank," admitted); 1896, State v. Wright, 48
La. An. 1525, 21 So. 160 (offers to compromise
are "generally" excluded) ; Maine: 1852, Cole
V. Cole, 33 Me. 542, 545 (conversation had for
"ascertaining the claims really existing," and
not " to purchase peace," received) ; Mai-y-
land: 1859, Reynolds v. Manning, 15 Md. 510,
526 (an offer to compromise is inadmis-sible, even
though not expressly said to be confidential or
without prejudice) ; 1897, Caledonian F. I. Co.
u. Tranb, 86 id. 86, 96, 37 Atl. 782 (offer to
settle, "not by way of compromise, but in
settlement of what was conceded " to be due,
received) ; 1901, Pentz ■». Ins. Co., 92 id. 444,
48 Atl. 139 (mere anthonty to agent to com-
promise, not followed by any act of offering, ex-
cluded ; see quotation supra); Massachusetis :
1824, Marsh v. Gold, 2 Pick. 284, 290 (" when
parties are treating about a compromise, admis-
sions of particular facts " aje receivable) ; 1826,
GeiTish V. Sweetser, 4 id. 374, 377 (same prin-
1236
§§ 1048-1087]
OFFERS TO COMPROMISE.
§ 1062
its occasional rendering as "the admission of any independent fact") is
merely an attempt to phrase one aspect of the correct theory already noted
ciple applied ; the exclusion "seems confined to
the mere offer of compromise ") ; 1845, Dickin-
son V. Dickinson, 9 Mete. 471, 474 ("the ad-
mission by a party of any independent fact is
admissible, though made under a treaty of com-
promise" ; here the parties were discussing a
settlement, the plaintiff said, " I demanded the
colt, you recollect," and the defendant an-
swered "Yes," and this was received) ; 1851,
Snow V. Batchelder, 8 Gush. 513, 516 (during a
conversation, had in order to offer a settlement,
defendant " said he owed the note " ; held ad-
missible) ; 1855, Harrington v. Lincoln, 4 Gray
563, 567 (rule applied) ; Emerson v. Boyn-
ton, 11 id. 395 (rule applied) ; 1875, Durgin v.
Somers, 117 Mass. 55, 61 (rule applied) ; tlie
offer of compromise. admitted "only so far as it
contained independent statements of facts ") ;
1878, Draper v. Hatfield, 124 id. 53, 56 (rule
applied) ; Pub. St. 1882, c. 167, § 76, Rev. L.
1902, i;. 173, § 87 (no unaccepted tender of de-
fault and daujages under §§ 65, 66, to be evi-
dence in the same or another action) ; 1903,
Higgins V. Shepard, 182 id. 364, 65 N. E.
805 (ordinaiy offer of compromise, excluded);
Michigan: 1878, Campau v. Dubois, 39 Mich.
274, -279 ("offers in negotiations for com-
]iromise " are inadmissible) ; 1887, Manistee N.
Bunk V. Seymour, 64 id. 59, 70, 31 N. W. 140
("all admissions not expressly made to make
peace, and all independent facts admitted during
negotiations for settlement" are receivable);
1895, Pelton v. Schmidt, 104 id. 345, 62 N. W.
552 (offers of compromise, inadmissible) ; 1898,
Fox V. Barrett, 117 id. 162, 75 N. W. 440
(similar) ; 1899, Phillips v. U. S. Benef. Soc'y,
120 id. 142, 79 N. W. 1 (correspondence with a
view to settlement, excluded) ; Minnesota: Gen.
St. 1894, §§ 4976, 5405 (offer to allow judgment,
if refused, not admissible) ; § 5406 (tender of
damages, not admissible) ; 1900, Person!). Bowe,
79 Minn. 238, 82 N. W. 480 (offer of payment,
admitted on tlie facts) ; Missowri: 1863, ferry
V. Taylor, 33 Mo. 323, 333 ("an offer to pay a
debt in property instead of money is in no sense
an offer of compromise"); Rev. St. 1899, §§ 751,
752 (unaccepted offer to allow judgment or
liquidate damages, not admissible) ; Montana:
C. C. P. 1895, § 3414 (like Cal. C. C. P. § 2078) ;
Nebraska: 1888, Kierstead v. Brown, 23 Nebr.
595, 612, 37 ISr. W. 471 (admissions in letters
written in response to a proposition of com-
promise, held not re9eivable) ; 1890, Eldridge v.
Hargreaves, 30 id. 638, 647, 46 N. W. 923
(offer to ]iay a smaller sum in settlement, ex-
cluded) ; 1891, Olson v. Peterson, 33 id. 358,
363, 50 N. W. 155 (offer of a sum in settlement
of a bastardy claim, excluded); 1896, Callen u.
Rose, 47 id. 638, 66 N. W. 639 (offers of com-
promise, inadmissible) ; 1897, Hanover F. I. Co.
V. Stoddard, 62 id. 745, 73 N. W. 291 (same);
1897, Wright v. Morse, 53 id. 3, 73 N. W. 211
(same). Comp. St. 1899, § 6157 (offer to allow
judgment in action for money ; if not accepted,
not admissible on trial) ; New Hampshire :
1828, Sanborn v. Neilson, 4 N. H. 501, 508
( " an admission of particular facts made during
a treaty for a compromise " is receivable, as
also an offer of settlement founded thereon ; see
quotatioTi supra) ; 1833, Hamblett v. Hamblett,
6 id. 333, 343 (preceding case approved ; an
admission made by one rejecting an offer of com-
promise is receivable) ; 1845, Hideout v. New-
ton, 17 id. 71, 73 (Sanborn v. Neilson aiiproved ;
an offer of part payment, made after advice to
offer it if his signature to the note was genuine,
here rejected) ; 1853, Downer v. Button, 26 id.
339, 345 (an offer of settlement, made because
"he was too poor to pay more," excluded);
1856, Bartlett v. Hoyt, 33 id. 151, 153, 165
(whether a. statement was an independent ad-
mission or an offer of compromise may be sub-
mitted to the jury as a question of fact ; clearly
unsound) ; 1862, Eastman v. Amoskeag Mfg.
Co., 44 id. 143, 154 (general principle ap-
proved) ; 1862, Perkins v. Concord R. Co., ib.
223, 225 (same) ; 1870, Coffin v. Plymouth, 49
id. 173 (that the defendant had paid the claim
of another person injured in the same accident,
admitted, by a majority) ; 1872, Plunimer v.
Currier, 52 id. 287, 296 (prior cases approved) ;
1872, Grimes v. Keene, 52 id. 330, 334 (highway
injury; defendant's payment in satisfaction to
another person injured in the same occurrence,
received as an admission, no aspect of a com-
promise appearing ; "it is the simple case of 'a
claim made and a, yielding to it") ; 1878. Gray
V. Rollinsford, 58 id. 253 (an unqualified offer to
pay a claim for damages is receivable ; preceding
cases approved) ; 1889, Colburn v. Groton, 66
id. 151, 156, 28 Atl. 95 (whether an off'er or a
payment was intended to be an admission of
a liability or an effort to avoid controversy is a
question of fact, depending on intent, to be
determined by the trial judge; see quotation
supra) ; 1896, Wason v. Burnham, 68 id. 553,
44 Atl. 693 (conversation in course of making
a settlement of claims, admitted) ; 1899, Jenness
V. Jones, 68 id. 475, 44 Atl. 607 (offer of com-
promise, inadmissible, but "any independent
admission, though made in the course of nego-
tiations for a compromise," receivable) ; 1899,
Greenfield v. Kennett, 69 id. 419, 45 Atl. 233
(offers of compromise are inadmissible, and the
finding of fact is not reviewable) ; 1902, Smith
V. Morrill, 71 id. 409, 52 Atl. 928 (Colburn v.
Groton approved; whether a statement is an
admission or a mere offer of compromise defiends
upon the intent); New Jersey: 1899, RichRrd-
son V. International Pottery (o., 63 N. J. L.
248, 43 Atl. 692 (offer of compromise held ad-
missible, unless expressly stated to lie without
prejudice or unless due to opponent's suggestion
of compromise ; no precedents cited) ; New
Turk : 1816, Mount v. Bogert, Antlion 259
("an admission of a fact independenr of the
compromise" is receivable) ; 1816, Tomb v.
Sherwood, 13 John. 288 (offer to settle for a
smaller sum, excluded as "a mere peace-offer-
ing ") ; 1825, Murray v. Coster, 4 Cow. 617,
1237
§ 1062 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
(in § 1061 (c)), i. e. to declare that unqualified statements conceding the
635, per Golden, Sen. (like Sanborn v. Neilson,
N. H., quoted supra, § 1061) ; 1831, Hyde v.
Stone, 7 Wend. 354, 357 (offer to pay, if a re-
lease was given, held not an offer of compromise,
on the facts) ; 1837, Mead w. Degolyer, 16
id. 638, 644, per Cowen, J. (an admission of
a fact, made in the course of a treaty of com-
promise is receivable) ; 1846, Marvin v. Rich-
mond, 3 Denio 58 (admission made during a
negotiation for settlement, received ; repudiating
Williams v. Thorp, 8 Cow. 201) ; 1864, Bartlett
V. Tarhox, 1 Abb. App. Cas. 120, 122 (admission
of a distinct fact during a negotiation for settle-
ment, held receivable ; otherwise of an offer for
the purpose of effecting a settlement) ; 1886,
White V. Old Dominion S. S. Co., 102 N. Y.
661, 6 N. E. 289 (" The law excludes such ad-
missions as appear to have been made tentatively
or hypothetically, but admits those only which
concede the existence of a fact " ; heie an ad-
mission during a negotiation for compromise
was held to be in effect hypothetical only) ;
1888, Brice v. Bauer, 108 id. 428, 433, 15 N. E.
695 (on the facts, "even the offer of a sum by
way of compromise is held to be admissible, un-
less stated to be confidential or made without
prejudice"; preceding cases not cited); 1895,
Tenuaut v. Dudley, 144 id. 504, 39 N. E. 644
(offer of compromise, held inadmissible) ; North
Carolina: 1846, State v. Jefferson, 6 Ired. 307
(rape ; the husband's offer of compromise in the
wile's presence, excluded) ; North Dakota: Rev.
C. 1895, §§ 5639-5642 (unaccepted offer to allow
judgment or assess damages, inadmissible) ;
Ohiti: 1875, Sherer v. Piper, 26 Oh. St. 476
(tile mere fact of an offer of compromise, as well
as its terms, held inadmissible) ; Rev. St. 1898,
§ 5142 (offer to confess judgment, made under
statute, not admis.sible); Oklahoma: Stats. 1893,
§ 4422 (offer to confess judgment in money-
action, not to be " deemed an admission of the
cause of action or the amount," "nor to be
given in evidence upon the trial"); Oregon:
C. C. P. 1892, § 856 (" An offer ofa compromise is
not an admission that anj'thing is due ; but ad-
missions of particular facts, made in negotiation
for compromise, may be proved, unless other-
wise specially agreed at the time ") ; § 520 (sub-
stantially like Cal. C. C. P. § 997) ; Pennsyl-
vania: 1845, Sailor v. Hertzogg, 2 Pa. St. 182,
183 (issue of title by adverse possession ; occu-
pant's offer to hold under the claimant, held, on
the facts, to be a "direct confession of a fact,"
and not " an offer to buy peace without regard
to the title") ; Rhode Island: 1874, Daniels v.
Woonsocket, 11 R. I. 4 (land-damages; plain-
tiffs offer of settlement, excluded as " priv-
ileged") ; 1901, Draper v. Horton, 22 R. I. 592,
48 Atl. 945 (admission of amount due, with offer
to pay it without costs, receivable) ; South
Carolina: C. C. P. 1893, § 386 (offer to allow
judgment, according to statute, not to be re-
ceivable if unaccepted) ; 1899, Robertson v.
Blair, 56 S. C. 96, 34 S. E. 11 (statements
' ' made in the conrse of negotiations looking to
a compromise, "^ inadmissible) ; Sovih Dakota:
Stats. 1899, §§ 6472-6475 (like N. D. Rev. C.
§§ 5639-5642) ; Tennessee : 1872, Strong v.
Stewart, 9 Heisk. 137, 142 (demaud of settle-
ment by payment of a certain sum in com-
promise within four days, with the alternative of
forfeiting all advantages under the contract, ex-
cluded) ; United States : 1876, Home Ins. Co. «.
Baltimore W. Co., 93 U. S. 527 (" offer of com-
promise," hehl inadmissible); 1879, West v.
Smith, 101 id. 263, 273 (the rule "is not that an
adniis.sion made during or in consequence of an
effort to compromise is inadmissible, but that
an offer to do something by way of compromise,
as to pay sums of money, allow certain prices,
deliver certain property, or make certain dednc-
tions, and the like shall be excluded ; these can-
not be called admissions, as they were made to
avoid controversy and to save the expenses of
vexatious litigation") ; Utah: Rev. St. 189(<,
§ 3217 (unaccepted offer to allow judgment,
inadmissible) ; Vermont: 1850, Stanford v.
Bates, 22 Vt. 546 (a mere offer of settlement
is not receivable; otherwise of "a distinct ad-
mission of a fact," though made " during a
negotiation for a settlement ") ; 1877, Doon v.
Ravey, 49 id. 293, 296 (an admission which is
a part of a treaty of compromise is privileged ;
but an admission made because "it is a fact,"
though during a treaty, is receivable) ; 1895,
Neal V. Thornton, 67 id. 221, 31 Atl. 296
(oHer of compromise, held inadmissible ; good
opinion); Virginia: 1797, Baird v. Rice, 1
Call 18, 26, per Pendleton, P. ("Propositions
on either side, made by parties in a treaty for
compromising their differences, if that treaty be
not effectual, are not to operate as evidence in a
future contest in court"); 1817, Williams r.
Price, 5 Munf. 507, 538 (unaccepted offer tend-
ing to a compromise, excluded) ; 1835, Brown
V. Shields, 6 Leigh 440, 446, 452 (letter held on
the facts not to be an offer of compromise, and
to contain distinct admissions ; Tucker, P.,
diss.); Washington: 1900, Long v. Pierce Co.,
22 Wash. 330, 61 Pac. 142 (an olfer made on
the faith of a compromise is inadmissible ;
whether it was so made is a question for the
jury ; the latter part of the ruling is erroneous) ;
Wisconsin: 1839, Johnson v. Wilson, 1 Pinn.
65, 70 ("admissions made by one party to
another while mutually engaged in effecting a
compromise of their difficulties," held inadnjis-
sible) ; 1860, State Bank v. Dutton, 11 Wis.
371 (statements made "in negotiating for a
settlement," excluded) ; 1902, Collins v. State,
115 id. 596, 92 N. W. 266 (offer to settle a
prosecution by restoring the money, admitteil) ;
1903, Pym v. Pym, — id. — , 96 N. W. 429
(settlement in compromise, held admissible,
though not conclusive) ; Wyoming : Eev. St.
1887, § 2529 (offer to confess judgment, made
according to statute, is not to be "given in
evidence or mentioned on the trial ").
For additional instances sometimes verging
upon this principle, see post, § 1070 (admissions
by reference).
1238
§§ 1048-1087] PLEADINGS. § 1063
opponent's claim are receivable in spite of their occurrence as a part of
an attempt to compromise. Interpreting it in the light of the expositions
already quoted, no inconsistency appears. Its only effect has been, appar-
ently, to lead to a stricter application of the principle, in certain courts,
resulting in a more liberal reception of evidence; for the judges affecting
that phrase seem inclined — as in Massachusetts — to give little weight to
the general hypothetical nature of discussions attending a compromise-
negotiation, and to admit every statement not in itself distinctly con-
ditional.
§1063. Same: (2) Admissions in Pleadings ; (a) Attorney's Admissions, in
general. Whether pleading in another suit is receivable as an admission is a
question that has led to surprising variety of opinion. Before examining the
state of the controversy, it is worth while to notice some related matters of
principle which have a bearing upon it ; and, in doing this, something must
be anticipated of doctrines which more properly belong later.
{a) In the first place, an attorney is not a person whose admissions may
be used against the party-client, except so far as concerns the management
of the litigation ; and this principle applies equally to the quasi-admissions
here concerned and to the solemn admissions already discriminated (avte,
§ 1057). The reason for this limitation is that the attorney's admissions can
affect his client so far only as he has authority to act as agent in his client's
place (on the principle of § 1078, post). That authority, so far as it is to be
implied from the mere general appointment as attorney, and has not been
enlarged in the particular case, extends only to the management of the cause.
Yet, conversely, all his admissions during that management, including the
utterances in the pleadings, do affect the client :
1846, Wilde, C. J., in Watson v. King, 3 C. B. 608 : " The attorney is not the agent of
the client for the purpose of making admissions, except in the cause and for the purpose
of tlie cause. All that appeared here was (the defendant having been proved to have
held the premises at a certain rent) that one of the plaintiif 's witnesses heard the plain-
tiif's attorney say that there was an agreement in writing. That clearly was no evidence
at all to afEect the plaintiff."
1849, Bell, J., in Trubyv. Seybert, 12 Pa. St. 101, 105 : " The concessions of attorneys
of record bind their clients in all matters relating to the trial and progress of the cause.
. . . [But] it has been ruled that what an attorney says in the course of casual conversa-
tion, relating to the controversy, is not evidence. The reason of the distinction is found
in the nature and extent of the authority given ; the attorney being constituted for the
management of the cause in Court, and in England for nothing else." i
^ Accord: Migland: 1807, Young ». Wright, ship contained in the undertaking); 1817,Parkins
1 Camp. 139 (attorney's admission that the bill v. Hawkshaw, 2 Stark. 239, Holroyd, J. (defend-
was for accommodatiou, excluded; judicial ad- ant's attorney's admission as to the execution of
missions, " with intent to obviate the necessity a deed, excluded; " matter of conversation with
of proving it, " are presumed to be by authority ; an attorney could not be received in evidence
" but it is clear that whatever the attorney says against a client"); 1825, Colledge v. Horn,
in the course of conversation is not evidence in 3 Bing. 119 (statements by counsel, in the
the cause"); 1815, Marshall w. Cliff, 4 id. 133 client's presence, in an address to the jury at
(attorney's undertaking, before suit begun,^ to a former trial ; undecided, but it was assumed
appear in any suit against defendant ; his then that apart from express authority or from assent
authority presumed, from his now being attorney by silence — post, § 1071 — , the statement was
of record, so as to receive an admission of owner- inadmissible ; Best, C. J. : "1 cannot allow that
1239
§ 1064 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
S 1064. Same : (6) Common-Law Pleadings in the Same Cause, as Judicial
Admissions. (1) The pleadings in a cause are, for the purposes of use in
that suit, not mere ordinary admissions {ante, § 1057), but judicial admissions
{post, § 2588) ; i. e. they are not a means of evidence, but a waiver of all con-
troversy (so far as the opponent may desire to take advantage of them) and
therefore a limitation of the issues. Neither party may dispute beyond these
limits. Thus, any reference that may be made to them, where the one party
desires to avail himself of the other's pleading, is not a process of using evi-
dence, but an invocation of the right to confine the issues and to insist on
treating as established the facts admitted in the pleadings. This much being
generally conceded, it follows that a party may at any and all times invoke
the language of his opponent's pleading as rendering certain facts indisputable;
and that, in doing this, he is on the one hand neither required nor allowed
to offer the pleading in evidence in the ordinary manner, nor on the other
hand forbidden to comment in argument without having made a formal offer.
He is merely advocating a construction of the judicial act of waiver of proof,
and no rule of evidence is involved :
1889, Vaym, J., in Tisdaley. R. Co., 116 X. Y. 416, 419, 22 N. E. 700: "The object of
pleading.s is to define the issue between the parties, and when an issue of fact is tried before
a jury they cannot appreciate the evidence, as it is given, unless they know the nature of
the issues to be decided. Hence it is customary and proper for counsel, in opening, to
tell the jury what the issues are as well as what they expect to prove. In some States
the case is ordinarily opened by reading the pleadings. The pleadings are before the
Court, not as evidence, but to point out the object to which evidence is to be directed.
While a party sometimes formally reads in eA'idence the pleading of his adversary, or
the counsel is the agent of the party") ; 1832, received as an agent's admission) ; 1887, John-
Wagstaff V. "Wilson, 4 B. & Ad. 339 (letter son v. Russell, 144 id. 409, 412, 11 N. E. 670
threatening legal proceedings, but written be- (attorney's agreement as to a verdict, excluded
fore action begun, excluded); 1845, Doe v. on the facts) ; 1888, Pickert !'. Hair, 146 id. 1, 4,
Richards, 2 C. & K. 216 (statements relating to 15 N. E. 79 (conversation "relating to a fact in
a demand for possession, made before action controversy, but not an agreement relating to
brought by the person now attorney of record, the management and trial of a suit, or an artniis-
excluded for lack of other evidence of authority ; sion intended to influence the procedure," held
on offering evidence of the person being attorney inadmissible); 1893, Loomis u. R. Co., 169 id.
at the prior time, Patteson, J., still doubted 39, 34 N. E. 82 (attorney's letter to the de-
whether the attorney's admission was receiv- fendant, stating the circninstances of the alleged
able) ; 1846, Watson u. King, 3 C. B. 608 (see injury, held admissible ; this ruling confirms the
qnotation supra) ; 1846, Petch ». Lyon, 9 Q. B. jneceding doctrine as to the authority of an
147, 154 (admissions which were " merely a attorney under his retainer for litigation merely,
loose conversation " and not "said as an admis- and proceeds upon his authority in this case
sion of a disputed fact in the cause," held not "to present and collect a claim," — a palpablj'
sufficient) ; Ga. ; 1903, Cable Co. o. Parantha, sound distinction, which may at any time come
— Ga. — , 45 S. E. 787 (convei-sation of one into play where the latter sort of authority is in
attorney with the other, after levy made, not fact given; Lathrop, J., and Field, C. J., diss.),
admitted on the facts) ; Kan. : 1903, Missouri The attornev's authority may be delegated to
& K. Tel. Co. u. Vandevort, — Kan. —,72 ocZerJ; 1831, Taylor d. Willans,' 2 B. & Ad. 845,
Pac. 771 (admission in an opening speech at a 8f 5 (malicious prosecution ; affidavit, as to bail,
prior trial, received); Mnsa. : 1861, Currier v. by the attorney's clerk, admitted ; "ifanattor-
Silloway, 1 All. 19 (attorney's agreement as to ney leaves the conduct of a cause to his clerk,
the amount of the verdict and admitting pay- what the latter does therein binils the partv, ns
ment, received); 1S64, Saunders w. McCarthy, much as the act of the attorney himself") ; 1832,
8 id. 42 ( " mere matters of conversation," out of Slandage v. Creighton, 5 C. & P. 406 (ofl'er of
court, not relating to the suit, excluded) ; 1878, payment to stop litigation ; managing clerk's
Lord V. Bigelow, 124 Mass. 185, 189 (attorney's statement received, "if the clerk had the man-
offer, in another cause, to prove certain facts by agement of the cause") ; 1903, Lord v. \Vood,
the testimony of the party then on the stand, — la. — , 94 N. W. 842 (attorney's clerk).
1240
§§ 1048-1087] PLEADINGS IN THE SAME CAUSE. § 1064
some part thereof containing a distinct and unconditional admission, no legal advantage
is gained thereby, as the admissions, properly so-called, contained in an adverse pleading
admit of no controversy and require no proof. ... It is the duty of the Court, in charging
the jury, to state the issues of fact raised by the pleadings. While this is commonly
done in a summary way by stating the precise questions of fact to be decided, no reason
is perceived vrhy it may not be done by reading and analyzing the pleadings, when they
are not complicated, and thus pointing out the issues and the position of the respective
parties. It is evident, therefore, that the established practice does not require that the
contents of the pleading should be concealed from the jury, as improper evidence is
required to be kept from their attention. On the contrary, as the pleadings mark the
boundaries within which the proof must fall, counsel upon either side are permitted to
point out where they claim those boundaries are, before they introduce their evidence.
So, when summing up, they restate the issues in order to logically apply the evidence to
them. If they do not agree as to the construction of the pleadings, a question of law is
presented, and it becomes the duty of the Court to construe them, to determine their
legal effect and meaning, and to instruct the jury accordingly. In this case the answer
was modified, but not superseded, by the stipulation, and in order to state the issues and
point out what was admitted and what denied, it was necessary to construe the complaint,
answer, and stipulation together. While the stipulation narrowed the issues to the injury
inflicted upon the plaintiff and the amount of damages sustained by her, as it was alleged
in the complaint, and not denied by the answer as modified, that she was precipitated
with the falling bridge and train a distance of about thirty feet into the bed of the feeder,
this became an admitted fact, important to be known by the jury, as it bore directly upon
the extent of the injury. The fright naturally caused by being thrown that distance,
amidst the crash of the breaking bridge and falling train, was also important. Was it not
within the discretion of the trial Court to permit counsel, in summing up for the plaintiff,
to call the attention of the jury to this allegation of the complaint, and to show by reading
and by proper comments, fairly ezplaining the answer, that it was not denied?" ^
(2) How does this principle affect the use of the pleadings upon another
issue in the same cause ? It forbids any resort to a pleading upon another issue ;
1 Accord: 1878, New Albany & V. P. E. Co. sary's pleadings in evidence before his counsel
V. Stallcup, 62 Ind. 345, 347 (pleadings are not can be allowed to commeut upon them in his
to be read as evidence, but may be commented address to the jury. Statements, admissions,
on ; because the pleadings " constitute a part of and allegations in pleadings are always in evi-
its proceedings without being introduced in evi- deuce for all tlie purposes of the trial ") ; 1875,
dence") ; 1879, Colter u. Calloway, 68 id. 219, Leavitt t>. Cutler, 37 Wis. 46, 53 (reading of an
223 (they may be commented on witliout being answer, held unnecessary ; "it is awkward prao-
otfered in evidence) ; 1893, Shipley v. Reasoner, tice formally to put them in evidence"). In
87 la. 555, 557, 54 N. W. 470 ( " They go to Massctchusetts, the statute seems to have beeu
the jury ; not as evidence, but for the purpose improperly interpreted : Mass. Pub. St. 1882,
of showincr what the issues are ") ; 1895, Wood- c. 167, § 75, Rev. L. 1902, c. 173, § 85 (" Neither
worth K.Thompson, 44 Nebr. 311, 62 N. W. 450 the declaration, answer, nor a subsequent alle-
(pleadings need not be formally put in evidence, gation, shall be deemed evidence on the trial,
when referred to as admissions) ; 1898, Lee v. but allegations only wherebv the party making
Heath, 61 N. J. L. 250, 39 Atl. 729 (plaintiffs them is bound") ; 1866, "Walcott v. Kimball, 13
bill of particulars, not being part of the record. All. 460 (pleadings not to be treated as evidence,
must be formally offered in evidence when used in argument to the jury, but only as definitions
as an admi.ssion) ; 1871, White o. Smith, 46 of the issue ; statute approved, because the cir-
N. Y. 418, 420 (pleading may be used as an cnmstances giving rise to the drafting are im-
admisslon ; the opinion not stating how advan- proper to consider, and because comment at the
tage is to be taken of the admission) ; 1889, Tis- argument leaves no opportunity for contrary
dale V. R. Co., 116 id. 416, 418, 22 N. E. 700 evidence) ; 1872, Phillips v. Smith, 110 Mass.
(opponent's pleadings may be read by counsel, 61 (preceding case approved ; pleading not ad-
even when not formally put in evidence; .see mittcd in evidence) ; 1878, Lyons w. Ward, 124
quotation supra) ; 1890, Holmes v. Jones, 121 id. 364 (subsequent clauses of an answer, fol-
id. 461, 466, 24 N. E. 701 (defendant's answer lowing a general denial, not allowed to he used
read to the jury ; "there is no rule of law which as admissions) ; 1885, Taft v. Fiske, 140 id. 250,
requires a party in any action to put his adver- 5 N". E. 621 (preceding doctrine approved).
1241
§ 1064 EXTRAJUDICIAL ADMIS3I0XS. [Chap. XXXV
because the object of each set of pleadings or counts is to raise and to define
the separate issues, and any use of the one to aid the other would to that
extent defeat this object and prevent the trying of the issue made. This re-
sult has always been conceded ^ (except, for a time, in Massachusetts % It
is a purely artifi^cial rule, an exception to principle, and is rendered necessary
solely by the peculiar theory of common-law pleading ; for its fundamental
object is "to separate the law from the facts, and to narrow the latter down
to a single issue," * and the statute permitting multiple pleas did not and
could not destroy the primary scheme of keeping each issue independent for
the purpose of submission to the jury. Thus, in order to secure for each of
these issues an independent investigation, it becomes necessary, during that
trial, to ignore, artificially, the existence of the other series of pleadings in
the same cause.
§ 1065. Same : (c) Bills and Ans-v^ers in Chancery in Other Causes. The
moment we leave the sphere of the same cause, we leave behind all ques-
tions of judicial admissions. A judicial admission is a waiver of proof (ante,
§ 1057) ; and a pleading is, for the purpose of the very cause itself, a de-
fining of the lines of controversy and a waiver of proof on all matters outside
these lines of dispute. But this effect ceases with that litigation itself ; and
when we arrive at other litigation and seek to resort to the parties' state- ,
ments as embodied in the pleadings of prior litigations, we resort to them
merely as quasi-admissions, i. e. ordinary sta};ements, which now appear to
tell against the party who then made them. Hence, their use is to be de-
2 1786, Kirk v. Nowill, 1 T. R. 118, 125 plea is a distinct and separate ground of defence,
(BuUer, J. ; " There was no such an idea before which cannot be used iu eviilence when the case
. . . that one plea might be supported by what turns upon an issue presented by another plea") ;
is contained in another ; each plea must stand 1842, Kimball v. Bellows, 13 N. H. .58, 66 (Con-
or fall by itself; they are as unconnected as if flieting statements in another count or plea can-
they were on separate records ") ; 1813, Haring- not be used as admissions ; here, a count struck
ton V. Macllorris, 5 Taunt. 228, 233 (Mansfield, outsincethe former trial) ; 1900, Gattis v. Kilgo,
C. J. : "It is every day's practice that the de- 128 N. C. 402, 38 S. E. 931, semble ; Gould on
fendant's language in one plea cannot be used to Pleading, c. 8, pt. I. On the question whether
disprove another plea ; as in the familiar instance an affidavit of defence is a plea, in this sense, see
I have given of trespass and not guilty and the following : 1897, JIullen v. Union C. L. Ins,
a justification pleaded, where the justiKcation Co., 182 Pa. 150, 37 Atl. 988 ; 1902, Tavlor v.
would certainly if admissible prove the act, in Beatty, 202 id. 120, 51 Atl. 771.
Ciise the reason of the justification fails"; ex- ' iSlS, Jackson b. Stetson, 15 Mass. 39, 50
eluding a bill of particulars furnished with a ("the confession or admission of the defendant in
notice of set-off) ; 1839, Jones v. Flint, 2 Per. one plea may be used against him on the trial ot
& D. 594, 595 (debt ; pleas, fii-st, mmquam in- another" ; here laid down for a plea of justifica-
debUatus, invoking the Statute of Frauds, and, tion in slander, and even under a statute allow-
next, tender aud payment into court ; the plain- ing multiple pleas by permission); this ruling
tiff argued that the objection of the statute was was followed in two cases : 1S22, Alderman v.
obviated by the admission of the contract in the French, 1 Pick. 1, 4, 11 Am. Dec. 114 (careful
pleaof payment ; but Coleridge, J., said: "How opinion); 1827, Hix u. Drury, 5 id. 296, 303;
can the admission made in one plea be called in but the law was altered by St. 1826, c. 107, for
aid of the issue joined on another?" and counsel actions of defamation, and later for all actions:
answered, " It is conceded that it could not ") ; Pub. St. 1882, c. 167, § 78, Rev. L. 1902, c. 173,
1841, Kinuear v. Gallagher, 1 Kerr N. Br. 424, § 89 ("When a defendant answers two or more
425 ; 1903, Craig v. Burris, — Del. — , 55 matters in his defence, no averment, confession,
Atl. 353 (plea of confession and avoidance in or acknowledgment contained in one of thera
the same cause, excluded) ; 1856, Nye v. shall be used or taken as evidence against him
Spencer, 41 Me. 272, 276 ("the language of a on the trial of an issue joined on any other of
defendant in one plea cannot be used to disprove them ").
another plea ") ; 18.59, Morris v. Henderson, 37 * Langdell, Summary of Equity Pleading, § 34.
Miss. 492, 508 ("The subject-matter of each
1242
§§ 1048-1087] PLEADINGS IN OTHEE CAUSES. § 1065
termined by the principles peculiar to the present subject. Such extrinsic
pleadings, being upon their face direct and plain assertions made for a serious
purpose, would naturally be supposed to be available as admissions ; and the
inquiry plausibly arises. Why should they not be ? Viewed in the light of
the principles of the present subject, there can be but two conceivable objec-
tions ; one is the objection that they were not made by the party himself, nor
by any one authorized to speak for him (on the principle of § 1078, post) ;
the other is that they are conventional or hypothetical only, and not intended
to be taken as sincere or absolute assertions. Before examining the validity
of these objections for common-law pleadings, it must be noticed what result
was reached, as a matter of law, for pleadings in chancery.
(1) An answer in chancery, in another suit, was always and unquestion-
ably allowed to be used as an admission of the party .^ Neither of the above-
suggested objections, indeed, could by possibility be urged against it ; for it
was not made in the name of another person, but was subscribed to by the
party himself; nor could it be regarded as conventional or hypothetical, for
it was solemnly sworn to as the party's sincere and unqualified avowals.
(2) A hill in chancery was originally considered as equally admissible.^
The fact that it was not subscribed and sworn to by the plaintiff was regarded
as at most requiring some further evidence of the party's authority, — to safe-
guard against the possibility of assuming to be his a bill which had been filed
by a stranger in his name ; and for this purpose the presence of the opponent's
answer in the files was deemed a sufficient safeguard.^ But there grew up,
with the development of chancery pleading, a marked distrust of the signifi-
cance of a bill. The practice in drafting was such that the allegations were
commonly understood to be, in large part, mere conventional rigmarole ; for,
since every interrogatory of discovery put to the opponent had to be founded
on some charge in the bill, and since the answer need be no more specific
"■ 1767, BuUev, Trials at Nisi Piius, 237 ("If party" ; but, per Gwriam, it was received, be-
the bill be evidence against the comjilainaut, cause " they will not intend that it was pre-
mnch more is the answer against the defendant, ferred without the privity of the party, and if
because this is delivered in upon oath ") ; 1812, it was, he has good remedy against those who had
Lady Dartmouth v. Roberts, 16 East 334, 339 ; preferred it, in action on the case " ; here the
1903, Booth V. Lenox, — Fla. — , 34 So. 566 ; "privity " clearly means, not the relation of con-
1860, Eobbins v. Butler, 24 111. 387, 427 ; sultation between an engaged counsel and his
1855, "Williams v. Cheney, 3 Gray 215, 220 client, but that of the origiual engagement with-
(statutoiy discovery) ; 1855, Judd o. Gibbs, ib. out which the counsel may be acting for some
639, 543 (same) ; 1875, Broadrup ■». Woodman, stranger pretending to be the party named);
27 Oh. St. 553. Contra: 1884, Arnold J?. Cald- 1767, BuUer, Trials at Nisi Prius, 235 ("The
well, 1 Manit. 81, 155 (answer in discovery). bill in chancery is evidence against the com-
For other and distinct questions affecting the plainant, for the allegations of every man's bill
use of answers in chanoerj', see post, §§ 2111, 2121 shall be supposed true ; nor shall it be supposed
(whether the whole must be offered or might be to be preferred by a counsel or solicitor without
offered) ; j^ost, § 1216 (whether the orijfiraaZ must the party's privity, and therefore it amounts to
be offered); post, § 2158 (how the sigiiature the confession and admission of the truth of any
conld be authenticated) ; post, § 1387 (whether fact" ; yet there must have been further pro-
the issues must be the same in the other suit) ; ceedings on it, otherwise it might be merely a
and post, % 1416 (whether the party's absetice false bill by a stranger ; " it must be supposed to
must be accounted for). be the party's bill, where his adversary has been
* 1665, Snow v. Phillips, 1 Sid. 220 (bill in compelled by the process of the court of Chan-
chancery ; objected that it is "not evidence, be- eery to answer it").
cau.se it only contains matter suggested perhaps * BuUer, quoted above,
by counsel or solicitor without the privity of the
• VOL. 11.— 16 1243
§ 1065 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
than tte charge on the interrogatory, ^ it was necessary to make specific and
positive charge-allegations upon all topics on which the party desired specific
discovery from the opponent ; and hence, such charges could and did take
the widest range of possibility, in the form of downright assertions of fact,
merely as a preliminary to securing the discovery. lu short, the allegations
were (to a large extent) simply the interrogatories phrased in affirmative
form for technicality's sake, and to that extent were no index at all of what
the plaintiff really believed and meant to assert. For these reasons the doc-
trine came to be settled that a bill in chancery was not receivable in another
suit as an admission :
1828, L. C. Hart, in. Kilbeev. Sneyd, 2 Moll. 186,208: "The Court never reads a bill as
evidence of a plaintifi's knowledge of a fact; it is mere pleader's matter; the statements
of a bill are no more than the flourishes of the draftsman. No decree was ever founded
on the allegations of a plaintiff's bill as evidence of facts."
1847, Mr. R. N. Gresley, Evidence in Equity, 323 : " Bills in equity are notoriously
filled with fictitious matter. Neither is it allowed to be used against the plaintiff, the
assertor of these false allegations, because it has been found by experience that under the
present system of pleading no process is so efficacious as alleging, in eventually eliciting
the truth. The Court looks upon these allegations as the mere suggestions of counsel,
and connives at statements and charges being made for the sole purpose of putting ques-
tions founded upon them to the defendant." ^
This doctrine, which (barring Mr. Justice Buller's adherence to the earlier
practice *') became established in England by the end of the 1700s," was gen-
erally accepted in the United States, and seems to have lasted even under
improved methods of pleading in chancery ; * although it may be supposed
* Langdell, Summary of Eq^nity Pleading, tions of the witnesses ") ; 1799, Taylor ». Cole,
§§56,57,64. ib. note (same); 1848, Bolleaa v. Rutlin, 2
^ 1797, (?) L. C. Eldon, in Twiss' Life, I, 301: Exch. 665, 676 (assumpsit for use and occupa-
" Lord Thurlow, when Lord Chancellor, called tion ; to prove an agreement to purchase, the
me into hisroomatLiucoln'sInnHall, and among defendant offered a bill in chancery for specific
other things asked me if I did not think that a performance, filed by the plaintiff, and setting
wooden machine might be invented to draw bills out the agreement ; excluded as an ad mission ;
and answers in Chancery. I told him that I Parke, B. : " Those, as well as pleadings at
should be glad if such a machine could be in- common law, are not to be treated as positive
vented, as my stationer's copy of my pleadings allegations of the truth of the facts therein for
generally cost me more than the fees paid me by all purposes, but only as statements of the case
the solicitors." For another passage illustrating of the party, to be admitted or denied by the
the common underatanding as to the fictitious opposite side, and if denied to be proved, and
character of these allegations, see ^s<, § 2111. ultimately to be submitted for judicial deci-
6 Quoted supra, note 2. sion ") ; 1862, Malcomson v. O'Dea, 10 H. L. C.
' 1730, Lord Fen-ei-s v. Shirley, Fitzg. 195 593 (to prove a prescriptive title to a fishery, a
(bill in chancery objected to as being " no more bill and answer in equity of 1674 were read ;
than the surmises of coun-sel for the better dis- "This bill and answer were not read as evidence
covery of title"; excluded without giving a of the facts stated therein," but as indicating a
reason) ; 1737, Ives v. Medcalfe, 1 Atk. 63, 65 dispute and then its abandonment, and thus,
(L. C. Hardwicke : "At law, the rule of evi- in connection with other things, an admission
dence is that a bill in chancery ought not to by the one party). The opinion of the judgfs in
be received in evidence, for it is taken to be the the Banbury Peerage Case, 1809 (extracted in
suggestions of counsel only ; but in this Court 2 Selwyn's Nisi Prius, c. 18, 11th Eng. ed.,
it has often beeu allowed ") ; 1797, Doe v. p. 765), sometimes cited as excluding a bill on
Sybourn, 7 T. K. 1, L. C. J. Kenyon (bill in the present principle, is in truth not an author-
chancery, excluded ; it is to be taken " merely ity, since the bill was offered on behalf of the
as the suggestion of counsel," and is admissible de-scendant of the party making it, and the
only "to show that such a bill did exist and present question was not referred to.
that certain facts were in issue between the • Ala. : 1838, Adams v. il'Millan, 7 Port,
parties, in order to let in the answers or deposi- 73, 85 (unsworn bUls in chancery held inadmis-
1244
§§ 1048-1087] PLEADINGS IN OTHER CAUSES. § 1066
that where a bill is now required to be sworn to, the rule for answers would
be applied.^ It will be seen, then, that the objection to the use of bills in
chancery was, not that its words were those of counsel only (for this argu-
ment seems to have been commonly ignored ^^), but that its allegations were
not intended as the sincere statements of either counsel or party, and were
merely conventional utterances formally desirable for ulterior purpose.
§ 1066. Same: (d) Common-Law Pleadings in Other Causes. In the light
of the considerations just noted (in § 1065), what objection could exist to the
use of common-law pleadings, filed in other causes, and containing statements
now serviceable as admissions ? The objections that have been advanced are
the two already noticed, namely, that the utterances of the pleading are not
in fact made by the party himself, and that they are frequently conventional
and fictitious allegations ; though these distinct reasons are seldom carefully
discriminated :
1837, Branson, J., in Starkweather v. Converse, 17 Wend. 20, 22 : " The party may
make an admission in one suit or plea which he would be very unwilling to follow in
another. A fact which is either directly or impliedly admitted in pleading will be
deemed true for all the purposes of that issue. But it may still be that the fact does
not exist and that it was only conceded in the particular case because the party did not
think it important in relation to that matter to put it in issue."
1847, ShatB, C. J., in Baldwin v. Gregg, 13 Mete. 253, 255 : " The pleadings are usually
filed by the attorneys; and they are filed with a view of laying the merits of the respec-
tive parties before the court, in a technical form, and can hardly be considered as the act
of the parties. It is not competent for the jury to hear evidence, and inquire and decide
whether a specification of defence was filed bona fide or mala fide. A bill of particulars
filed by a plaintiff, or a specification of defence filed by a defendant, is usually a formal
document, drawn up by counsel, after some examination of his client's case, and is made
broad enough to cover all which the party can expect, in any event, to prove; and in
most instances, pi-obably, is not seen by the party in whose behaU it is filed."
The answers to these objections are not dif&cult to find. (1) That the state-
ments of the pleading are not those of the party himself must be immaterial,
since they are those of his authorized attorney. The appointment of attorney
and counsel makes them agents to manage the cause in all its parts, in-
cluding unquestionably the pleading. The agent's utterances for the prin-
cipal in the pleadings bind the party as solemn judicial admissions ; much
more, then, may the agency suffice to admit them as informal quasi-admis-
siWe, being " the mere suggestions of counsel ") ; 183, seiribU (see citation post, § 1066); Pa.:
1842, Durden v. Cleveland, i Ala. 225, 227 1832, Owens v. Dawson, 1 "Watts 149, 150-
(same ; there must be some recognition of the U. 8. : 1855, Church v. Shelton, 2 Curt. C c'
bill, as by verifying oath) ; Oa. : 1892, Lamar 271, 274 (libel in admiralty, in another suit, not
V. Pearre, 90 Ga. 377, 17 S. E. 92 (see citation admissible, even though privity appear ; fol-
posf, § 1066) ; ^2/. .• 1817, Francis ». Hazelrig, lowing Boileau w. Rutlin). Gonlra: 1893
1 A. K. Marsh. 93 (except to identify the land Schiniiiseur ». Beatrie, 147 111. 210, 216 35
described in a decree) ; 1820, Eankin v. Max- N. E. 525. '
well, 2 id. 488, 491 ("We well know that » 1862, Doe v. Eoss, 5 All. N. Br. 346
counsel are not restricted in crowding into their (bill in chancery sworn to, admitted; "the
bill numerous allegations to dress their ease ") ; maxim eessante ratio etiam cessante lex is now
1823, Rees v. Lawless, 4 Litt. 218 (similar) ; made applicable ") ; 1890, Buzard v. McAuultv,
1827, McConnell v. Bowdry, 4 T. B. Monr. 77 Tex. 438, 445, 14 S. W. 138.
392, 395 (bill considered ; opinion obscure) ; i» See the comment on Snow v. Phillips
Mass. 1 1870, Elliott v. Hayden, 104 Mass. 180, cited mpra, note 2. '
1245
§ 1066 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
sions. If the fortunes of the party in the cause are irretrievably determined
by the utterances of the attorney in the pleadings, it is difficult to argue that
the attorney is not an agent for the purpose of making the same utterances
receivable in evidence as quasi-admissions. (2) It is said that the utterances
of the pleadings are merely conventional and therefore fictitious allegations,
not to be taken as sincere and bona, fide stateaients. This is an objection
which had weight when the common-law fictions of trover and ejectment and
implied assumpsit were in vogue, and when the bill in chancery could be
correctly said by John Wesley to be " stuffed with stupid senseless improbable
lies," and by Jeremy Bentham, a century later, still to be " a volume of noto-
rious lies." Even then, the recognized conventions could be distinguished
by the practitioner from the plain unvarnished claims. But to-day, in the
great majority of jurisdictions, the reforms in pleading deprive this objection
of all weight. (3) Furthermore, the only plausible objection, namely, that
many defensive pleadings are purely hypothetical in their nature and form,
concerns matter which is restricted in scope and lends itself readily to segre-
gation. For example, affirmative pleas in confession and avoidance should
in strictness speak hypothetically in the confessing part ; ^ but the avoiding
part is unqualified in its form and must be takeu to be sincere and final. It
would therefore be correct enough to reject the former part as not an admis-
sion, since in form (if properly drawn) it admits nothing but assumes the
fact provisionally for the purpose of avoiding it. But, leaving aside such
portions, there is no reason why the plaintiff's allegations and the defendant's
substantive replies in avoidance should not be taken for what they purport
to be, namely, absolute utterances. Indeed, any other view is stultifying to
the theory of legal proceedings ; for it represents the pleadings during the
trial of the cause itself as solemn asseverations upon the faith of which the
parties' rights and liberties are forever adjudged and vindicated, and then
proceeds, in the ensuing cause, to brush them aside as mere academic and
unmeaning disputations, idle feats of forensic logic. Such a view is a
travesty upon the facts.
That the pleadings in prior causes, then, can be treated as the parties'
admissions, usable as evidence in later causes, must be conceded :
1883, Elliott, J., in Boots v. Canine, 94 Ind. 408, 412: "Our statute has adopted the
equity practice; we treat pleadings as statutory facts, not Actions. ... If it can be
said that Courts can presume that an answer under our code does not state facts, then it
may be logically said that it is not evidence ; but if the presumption is, that it does state
1 Not all the orthodox forms do so, but the ... he the said defendant is ready and willing
following illustrate the correct practice Chitty, and hereby oflFers to set off and allow to the said
Pleading, 14th Am. ed., Ill, 956 (plea of set- plaintiff the full amount of the said supposed
off: "[Because the plaintiff owed the de- debt and damages") ; III, 1061 (plea of accord
fendant at the same time the sum of $100, and satisfaction to a trespass : " Because he
which sum] exceeds the supposed debt due and says that the said supposed trespasses were com-
owing from the said defendant to the said niitted by the said W. P. (i/oi! o?i commiMed 6//
plaintiff and the damages sustained by the said him) jointly with the said defendant G. S., and
plaintiff by reason of the detention of the sup- that after the committing of the said several
posed debt so alleged to be due and owing to supposed trespasses" an accord and satisfaction
the said plaintiff as in the said declaration was had),
mentioned, and out of which said sum of money
1^46
§§ 1048-1087]
PLEADINGS IN OTHEE CAUSES.
§ 106.6
facts, then it is logically inconceivable that it should not be evidence against the party. . . .
Our code imperatively requires that pleadings shall state facts, but it does not stop with
this command. It provides that ' All fictions in pleading are abolished.' It is several
times declared that pleadings not sworn to shall have the same effect as pleadings sworn
to. It is simply absurd to say that under our code the statements in the pleadings are
mere fictions, and if they are not fictions then they are facts, and if facts in some cases,
and in others conclusive admissions of record, then they are evidence. An admission in
a pleading is the admission of matters of fact; this seems so plain that it is difficult to
understand how the contrary doctrine can be seriously asserted."^
2 The cases representing the different rules
are as follows : England: 1848, Boileau v. Rutlin,
2 Exch. 665, 676 (pleadings at common law in
another suit, said ohiter to be inadmissible ;
quoted siqrra, § 1065, note 7) ; 1851, Marianski
0. CJairns, 1 Macq. Sc. App. 212, 225 (creditor's
claim against an estate ; plaintiff's plea, in a
suit for alimony, not sworn to but signed, held
admissible; Lord Brougham: "Being in writ-
ing and signed by himself, it is to be regarded
in the light of an admission ") ; Canada : 1877,
R. V. Wright, 17 N. Br. 363, 373 (affidavit
made in another cause, admitted, per Wright, J.,
citing Kichards v. Morgan, post, § 1075) ; 1877,
Domville i'. Ferguson, ib. 40 (record in another
suit, showing au admission of ownership of a
vessel, admitted); Cal. : 1874, McDermott «.
Mitchell, 47 Cal. 249 (joint answer of R. and
M., verified by R. alone, not received against
M. ; "it was the mere work of the attorney" ;
no authority cited) ; 1886, Duff v. Duff, 71 id.
513, 521, 12 Pac. 570 (petition for letters of
administration ; certain statements therein were
excluded, as not required to be made and there-
fore not impliedly authorized, nor yet shown to
be inserted with the petitioner's knowledge and
sanction) ; 1887, Kamm ». Bank, 74 id. 191,
195, 15 Pac. 765 (claim against an estate ; the
action being brought by the party's consent,
"the complaint therein is evidence against him
of the fact of suit brought and of the nature of
the action"); 1889, Coward v. Clanton, 79 id.
23, 29, 21 Pac. 359 (said ohiier that the attor-
ney's presumed authority entitles the pleading
to be " regarded as the admission of the party,"
subject to his showing that he did not in fact
authorize it) ; 1894, Solari v. Snow, 101 id. 387,
389, 35 Pac. 1004 (complaint in another suit ex-
cluded, because not signed by nor known to the
party) ; Ga. : 1892, Lamar v. Pearre, 90 Ga. 377,
17 S. E. 92 (bill to recover land, filed in another
suit against another person about the same land,
admitted, though not sworn to or signed by the
complainant but only signed by the solicitor) ;
1897, Farmer v. State, 100 id. 41, 28 S. E. 26
(false representations ; answer in a creditor's
suit, signed by certain persons as defendant's
attorneys, not received in the absence of proof
of his direction or knowledge ; distinguishing
Lamar v. Pearre as a civil case requiring a less
stringent rule) ; 1901, St. Paul F. & M. Ins. Co.
V. Brunswick G. Co., 113 id. 786, 39 S. E. 483
(garnishee's admissions in an answer in litiga-
tion with a delitor of the same name, admitted) ;
I!!.. . 1897, Gardner v. Meeker, 169 111. 40, 48
N. E. 307 (plea of set-off, etc., in another suit
between the same parties on the same matter.
admissible, but not without the declaration) ;
Ind. : 1883, Boots v. Canine, 94 Ind. 408, 414
(pleadings in general are admissible, on the pre-
sumption that the client authorizes its terms ;
see quotation mpra) ; la. : 1864, Ayers v. Ins.
Co., 17 la. 176, 187 (unsworn answer, admitted) ;
Xan. : 1876, Hobson b. Ogden, 16 Kan. 388,
394 (verified pleading admitted) ; 1883, Solo-
mon R. Co. V. Jmips, 30 id. 601, 608, 2 Pac.
657 (same) ; La. : 1842, Wells i. Compton, 3
Rob. 171, 182 semUs (petition in another suit,
admitted) ; Me. : 1851, Parsons v. Copeland,
33 Me. 370, 374 (pleading in another suit, ad-
mitted ; point not raised) ; 1897, Pockland i/.
Farusworth, 89 id. 481, 36 Atl. 989 (a declara-
tion of town of residence in a writ in another
suit still pending, excluded); Md.: 1903,
Nicholson v. Snyder, — Md. — , 55 Atl. 484
(answer in bankruptcy, admitted); Mass. : 1861,
Currier u. Silloway, 1 All. 19 (writ bearing an
affidavit, in another suit, admitted) ; 1861,
Gordon v. Parmelee, 2 id. 212, 215 (declaration
in former suit, received, as being "not a mere
technical statement of a cause of action by an
attorney," but an averment by an agent in his
employment) ; 1861, Jones v. Howard, 3 id.
224 (action on contract for use and occupation ;
evidence of previous action on writ of entry,
admitted, subject to explanation by plnintiff as
the result of a mistake) ; 1866, Bliss v. Nichols,
12 id. 443, 445 (declaration in another suit,
"made by her authoritj'," received) ; 1866,
Boston V. Richardson, 13 id. 146, 162 (record
in another suit, admitted) ; 1870, Elliott v.
Hayden, 104 Mass. 180, 183 (sworn bill in
another suit, filed but afterwards withdrawn,
received, " upon the same ground upon which
sworn answers and pleas in chancery, or allega-
tions concerning the substance of the action in
a declaration at common law, have been held
admissible"); 1876, Brown u. Jewett, 120 id.
215, 217 (bill in equity received, if the party
had signed and sworn to it or had authorized
counsel to bring the bill for the purpose set
forth therein, so far as that involved the state-
ment in question) ; 1883, Dennie v. Williams,
135 id. 28 (answer in another suit, excluded,
there being "nothing to indicate how far the
attorney was yiarticularly instructed " ; prior
cases distinguished as touching allegations "ob-
viously made by direction " of the party or
adopted " by prosecuting the action upon them "
after knowledge of them) ; 1887, Johnson v.
Russell, 144 id. 409, 11 N. E. 670 (answer in a
former suit, admissible, when it contains "par-
ticular and specific allegations of matters of
action or defence which cannot be presumed to
1247
1066
EXTEAJUDICIAL ADMISSIONS.
[Chap. XXXV
The rule of law, however, as generally applied under the orthodox com-
mon-law system of pleading, seems to have been to exclude all common-law
pleadings tiled in other causes ; but, on the other hand, under most of the
reformed systems (by which the pleadings, approximating the chancery
practice, are required to be signed by the party, and sometimes to be sworn
to) they are commonly ruled to be admissible if it appears that the party
signed them. A few Courts concede the same result also when the party's
personal knowledge of the pleading's contents is otherwise shown. For the
reasons already explained, all of these limitations and requirements must be
regarded as unsound, and this a few Courts appear to hold.
Certain discriminations, however, resting on peculiar grounds or on special
evidential uses, need to be made. (1) A statement by a person as counsel in
have been made under the general authority of
the attorney but are obvioasly from specific
instraotions of the party") ; 1899, Farr v,
Kouillard, 172 id. 303, 62 N". E. 443 (answer in
another suit, not signed by defendant himself,
excUiJed) ; 1900, Smith v. Paul Boyton Co.,
176 id. 217, 57 N. E. 367 (record containing
answer in another cause, received to show de-
feudant's admission of ownership of property in
issue) ; 1902, Stone v. Com., 181 id. 438, 63
N. E. 1074 (tlie plaintiffs now denying their
title, the fact that in a prior case the counsel
for the plaintiff ' ' argued and tried to prove "
that title was in the plaintiff, held inadmis-
sible) ; Mich. : 1903, Cornelissen v. Ort, —
Mich. — , 93 N. W. 617 (affidavit in another
cause, received) ; Minn. : 1881, Vogel v. Os-
borne, 32 Minn. 167, 20 N. W. 129 (receivable
"if it was signed or verified by the party, or if
it otherwise affirmatively appears that the facts
stated therein were inserted with his knowledge
or by his direction," or perhaps "if the party
stands by it by allowing it to remain the plead-
ing in the case") ; 1889, Rich v. Minneapolis,
40 id. 82, 41 N. W. 455 (preceding case ap-
liroved) ; 1893, O'Riley v. Clampet, 53 id. 539,
55 N. W. 740 (former claim in another lien-
suit, received) ; 1902, Yoki v. First State Bank,
87 id. 295, 91 N. W. 1101 (affidavit of destitu-
tion in a divorce suit, admitted in an action for
personalty) ; Mo. : 1874, Dowzelot v. Rawling.s,
58 Mo. 75 (petition filed by attorney of R. "at
the latter's instance," admitted, "whether E.
had " seen the petition after it was drawn up,
or not"); 1885, Anderson v. McPike, 86 id.
293, 301 (though the pleading is prima facie
receivable, yet, if proved to have been filed by
one not employed as an attorney in the case, it
is inadmissible) ; 1888, Nichols ». Jones, 32
Mo. A)ip. 657, 664 (allegations in a pleading in
another suit are receivable, because "prima
facie the pai'ty acquiesced"; but stipulations
of fact filed in one action are not admissible
elsewhere unless acquiescence of the client is
shown); Mont.: 1903, Tague v. Caplioe Co.,
— Mont. — , 72 Pac. 297 (admissible if "veri-
fied by the party or prepared under his instruc-
tions"); Nebr. : 1886, Bunz ». Cornelius, 19
Nebr. 107, 114, 26 N. W. 621 (former petition
for specific performance, admitted ; no rule
1248
stated) ; 1899, Paxton v. State, 59 id. 460, 81
N. W. 383 (other pleadings "either made by
his direction or afterwards sanctioned by him,"
or signed or verified, are admissible); 1899,
Paxton V. State, 59 id. 460, 81 N. W. 383
(official bond of treasurer for second term; prior
suit brought against bondsmen for first term,
taken as an admission that pait of total defalca-
tion occurred during first term) ; N. Y. : 1837,
Starkweather v. Converse, 17 Wend. 20, 22
(bill of particulars in another suit, excluded ;
see quotation supra) ; 1870, Cook v. Barr, 44
N. Y. 156, 158 ("It must first he shown, by
the signature of the party or otherwise, that the
facts were inserted with his knowledge or
under his direction and with his sanction");
1893, Hutchins v. Van Vechten, 140 id. 115,
118, 35 N. E. 446 (admissions in a pleading in
another action are receivable, " if signed by the
party with knowledge of its contents ") ; Pa. :
1841, M'Clelland v. Lindsay, 1 W. & 8. 360
(plea in abatement in another suit, received) ;
1849, Truby v. Seybert, 12 Pa. St. 101, 105
(record in another suit, received, and assumed
to be " either immediately from the party him-
self or authorized or assented to by him");
Tex. : 1866, Wheeler v. Styles, 28 Tex. 240,
246 (answer and exhibit in another cause, ad-
mitted ; "it was his statement, made under
oath") ; 1890, Buzard v. McAnulty, 77 id. 438,
445, 14 S. W. 138 (pleading sworn to by the
party, received) ; U. S. : 1858, Combs v. Hodge,
21 How. 397, 404 (petition and answer in an-
other suit "signed by counsel and not by the
parties," held not receivable as admissions ;
following Boileau v. Rutlin) ; 1885, Pope t.
Allis, 115 U. S. 363 (pleading in equity or law,
if sworn to by the party, is receivable as a
"solemn admission"); 1889, Delaware Co.
Coin'rs V. Diebold S. & L. Co., 133 id. 473, 487,
10 Sup. 399 (complaint "not under oath nor
signed by the plaintiff," excluded) ; Wis. : 1896,
Lindner v. Ins. Co., 93 Wis. 526, 531, 67 N. W.
1125 (prior pleading, unverified, held admissible ;
"presumptively the answer was authorized by
the defendant, but it might show the circum-
stances and that the allegation.s were inserted
without proper authority "); 1898, Lee v. R. Cc,
101 id. 352, 77 N. iV. 714 (pleading of plaintiff
in another suit, not signed by him, admitted).
§§ 1048-1087] PLEADINGS IN OTHER CAUSES. § 1067
another's cause, may of course not be treated as his own admission usable
against him personally.* (2) A pleading, or other litigious allegation (such as
plea of nolo contendere or a case stated) may be in its terms merely hypotheti-
cal or ambiguous, and may therefore not be interpretable as an admission.*
(3) So far as the fact of the existence of a record or suit or claim is in issue,
the pleading may be considered in order to evidence that fact." (4) The priv-
ilege against self-crimination does not forbid the use, in a criminal prosecu-
tion, of a plea in prior civil case admitting the fact now charged, because the
plea, filed voluntarily, was a waiver of the privilege. Nevertheless, in order
to deprive a civil party of the right to refuse to plead on that ground, statutes
have been enacted in some jurisdictions, forbidding the use of such pleadings
in criminal cases.^ Whether such statutes accomplish their primary purpose
depends upon the principle of the privilege (post, §§ 2281, 2282). But the
converse use, that of an accused's pleading in a subsequent civil case, would
seem to be proper, and not within the prohibition of such statutes.'^ (5) The
use here discussed, of informal or quasi-admissions, has nothing to do with
the use of pleadings as solemn or judicial admissions (ante, § 1057). The
latter are conclusive in their nature ; but that effect is confined to the cause
in which they are made. When used in other causes as ordinary admissions,
they are of course not conclusive^ (on the principle of § 1058, ante); and
therefore, so far as their admissibility is made (by some Courts, as above
noted) to depend on the party's actual knowledge of their contents, or (when
that requirement is not made) so far as the purpose is to detract from their
weight, it may be shown by appropriate evidence that the party was in fact
unaware of their contents.^
§ 1067. Same: («) Superseded or Amended Pleadings. When a pleading
is amended or withdrawn, the superseded portion disappears from the record
as a judicial admission limiting the issues and putting certain facts beyond
dispute. Nevertheless, it exists as an utterance once seriously made by the
party. While thus denied all further effect as a pleading, may it not still be
' 1887, Wood!). Grave.s, 144 Mass. 365,. 370, by conviction and sentence, excluded); 1902,
11 N. E. 567 (defendant's assumption of a fact State v. La Rose, 71 N. H. 435, 52 Atl. 943
in a brief snhmitted as counsel, held not an (careful opinion ; plea of nolo contendere, ex-
admission) ; 1902, Stone v. Com., 181 id. 438, eluded); 1901, State )'. Henson, 66 N. J. L. 601,
63 N. E. 1074 (see citation supra). 50 Atl. 468, 616 (plea of twIo contendere, usable
* Case stated: 1807, Elting ». Scott, 2 John, as an admission of guilt in discrediting a de-
157, 162 ("case made" for argument, in another fendant-witness).
cause, rejected, as made "by counsel without " 1848, Boileau v. Rutlin, 2 Exch. 665, 677.
any communication with the parties"); 1835, ^ These statutes are collected ^osi, §2281. A
M'Lughan v. Bovard, 4 Watts 308, 313 (case few of them are so broad as to exclude the plead-
stated for a judge cannot be used as an admis- ing in "any " subsequent proceeding,
sion, especially when the parties have abandoned ' 1855, Birchard v. Booth, 4 Wis. 67, 69, 72
it and gone to the jury) ; 1848, Hart's Appeal, (battery ; the defendant's oral plea of guilty on
8 Pa. St. 32, 37 (case stated, excluded). Plea: a criminal prosecution for the same battery,
1873, State v. Bowe, 61 Me. 176 (a plea of guilty admitted).
of adultery, which might refer to either the » 1867, Tabb v. Cabell, 17 Gratt. 160, 166.
woman's or the man's previous marriage, was ' 1835, M'Lughlan v. Bovard, 4 Watts 308,
therefore excluded as ambiguous) ; 1900, White 313 (case stated for the Court).
V. Creamer, 175 Mass. 567, 66 N. E. 832 (bill to Compare also the cross-references ante, § 1066,
restrain the sale of liquor ; plea of nolo con- note 1.
Undere in a prosecution for illegal sale, followed
1249
§ 1067 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
used as a quasi-admission, like any other utterance of the party ? The objec-
tion to this use of it has been thus stated :
1885, Devens, J., in Taft v. Fiske, 140 Mass. 250, 252, 5 N. E. 621 : " The plaintiff here,
by means of the answer first filed and that subsequently relied on, endeavored to show
that the amended answer was a ' put up ' defence. The force of his argument depended
upon a comparison of the evidence afforded by the two answers. It would be a serious
embarrassment to that liberal amendment of pleadings contemplated by our statutes,
if a party availing himself of the leave in this respect granted by the Court could only
do so by subjecting himself to the imputation that his new form of statement, by its dif-
ference from that previously made, showed that he presented a simulated case. . . . The
original statement of a party's case is often hurriedly prepared, with imperfect informal
tion of the facts, and sometimes under misapprehension of the law. New facts are re-
vealed at the trial, and new views of the law applicable to them are suggested. It would
be unjust, if, in a closing argument, the counsel could be allowed to compare the answer
originally made with that finally relied on, without an investigation of all the circum-
stances under which the original answer was made. Yet such an investigation would be
manifestly impossible. To permit counsel thus to comment after the evidence has been
concluded, and when no opportunity for explanation remains, or indeed could ever be
given, would often cause an entirely different effect to be attributed to the legal state-
ments of a defence from that which they should properly bear."
So far as the argument from hurry and inadvertence is concerned, it would
be equally valid against many extrajudicial utterances of the party. Yet
no one has ever supposed that it afforded any reason for their rejection. The
party is always at liberty to show the circumstances in explanation, to detract
from the significance of his utterance. The other argument — that of the
unfairness of allowing comment in argument, after the evidence closed —
rests on incorrect premises, for the conceded rule (noted later) is that the
superseded pleading, when thus used, must always be formally offered in
evidence at the proper time, like all other matters of evidence. There is no
reason why a retraction, based (perhaps) on better information, should effect
the exclusion of this rather than of any other sort of statement, once made
by the party and now offered against him :
1883, Ellintt, J., in Boots v. Canine, 94 Tnd. 408, 416 : " We should feel that we were
doing an idle thing if we should undertake to cite authority upon the proposition that a
party cannot be deprived of his right to give in evidence an admission because the latter
had withdrawn it. Even in criminal cases, an admission made by the accused before the
examining magistrate is not rendered incompetent by a subsequent withdrawal. The
withdrawal of an admission may, in proper cases, go in explanation, but it cannot change
the rule as to its competency. We have never, until the argument in this case, known it
to be asserted that the withdrawal of a confession or an admission destroyed its compe-
tency as evidence against the person making it. If it did, then ciiminals might destroy
evidence by retraction, and parties escape admissions by a like course. The law tolerates
no such illogical procedure. It is proper to show the withdrawal and all attendant cir-
cumstances, for the purpose of determining the weight to be attached to the admission,
but not for the purpose of destroying its competency."
Such is the view generally accepted, although the rulings are by no means
uniform.^
^ Cal. : 1876, Ponce v. McElvy, 51 Cal. 222 1884, Johnson v. Powers, 65 id. 179, 180, 3 Pac.
(superseded complaint, not allowed to be read) ; 625 (" Such statements, so far as they were con-
1250
§§ 1048-1087]
SUPERSEDED PLEADINGS.
§ 1067
But, since the superseded pleading is offered, like any other statement of
the party constituting a quasi-admission, as an item in the general mass of
evidence against the party, it must of course be put in at the proper time.
It therefore cannot be commented on in argument, unless (according to the
principles of §§ 1806, 1866, post) it has been thus formally offered in due
season :
1886, Ofton, J., in Folger v. Boyinton, 67 Wis. 447, 30 N. W. 715 : " The pleadings in
the cause may be referred to by counsel or the Court to ascertain the nature and scope of
tvadiotory of or inconsistent with his statements
as a witness, were as much admissible, for the
purpose of impeaching liim, as if they were
contained in a letter written by him to a third
person or in an affidavit tiled in a distinct pro-
ceeding ") ; 1886, Pfister v. Wade, 69 id. 133,
138, 10 Pac. 369 (superseded pleading does not
bind ; but it is receivable so far as it serves any
purpose other than as a pleading ; here, the
plaintiff was allowed to use his own superseded
pleading as containing an offer to pay money
into court) ; 1886, Wheeler v. West, 71 id. 126,
128, 11 Pac. 871 (superseded complaint, held
not admissible for defendant, the purpose not
appearing in the report) ; 1889, Coward v. Clan-
ton, 79 id. 23, 28, 21 Pac. 359 (answer in an-
other suit on the same subject, received, though
"superseded by the tiling of another answer";
"no matter if it had ceased to exist as a plead-
ing in the cause, it was still binding upon the
respondent as an admission "; no authority
lited) ; 1896, Ralph v. Hensler, 114 id. 196, 45
Pac. 1062 (superseded pleading held inadmis-
sible in evidence) ; 1896, Miles v. Woodward,
115 id. 308, 46 Pae. 1076 (original amended
pleading, not received) ; 1897, O'Connor's Estate,
118 id. 69, 50 Pae. 4 (superseded pleading, ad-
mitted) ; 1902, Ruddock Co. v. Johnson, 135 id.
919, 67 Pao. 680 (withdrawn cross-complaint,
held not evidence) ; Ga. : 1902, Alabama Mid-
land R. Co. V. Guilford, 114 Ga. 627, 40 S. E.
714 (superseded pleading, held admissible) ; III.:
1899, Wenegar v. Bollenbach, 180 111. 222, 54
N. E. 192 (sujier.seded bill in same proceeding,
excluded, where not verified by the party but
drawn by the attorney >mder a misapprehension;
no general rule laid down) ; Ind. : 1883, Boots
!). Canine, 94 Ind. 408, 416 (see quotation
mnra) ; la. : 1873, Mulligan v. R. Co., 36 la.
180, 189 (amended pleading, admissible); 1886,
Raridan v. R. Co., 69 id. 527, 531, 29 N. W. 599
(same) ; 1893, Shipley v. Reasoner, 87 id. 555,
557, 54 N. W. 470 (same) ; 1897, Ludwig v.
Blackahere, 102 id. 366, 71 N. W. 356 ; 1903,
Caldwell 0. Drummond, — id. — , 96 N. W.
1122 (same) ; Ky. : 1903, Wyles v. Berry, — Ky.
— , 76 S. W. i26 (original amended pleading,
signed and sworn, held admissible) ; Mass. ; 1847,
Baldwin v. Gregg, 13 Mete. 253 (the filing and
withdrawing of a specification of defence is not
to be consWered) ; 1885, Taft v. Fiske, 140 Mass.
250, 5 N. E. 621 (the filing of an amendment to
a pleading is not a proper subject of comment in
argument, nor can the original pleading be used
in evidence ; see quotation supra); 1900, Demel-
man v. Burton, 176 id, 363, 67 N. E. 665 (com-
ments on the amended answer, held improper on
the facts) ; Minn. : 1884, Vogel v. Osborne, 32
Minn. 167, 20 N. W. 129 (superseded pleading,
held admissible, but under a stricter rule, as to
proof of the party's personal knowledge of it,
than other pleadings) ; Mo. : 1897, Walser v.
Wear, 141 Mo. 443, 42 S. W. 928 (two former
answers in the same cause, omitting to allege the
present defence, received) ; Mont. : 1897, Mahoney
V. Hardware Co., 19 Mont. 377, 48 Pac. 545 (a
part abandoned before trial, held not admissible) ;
Nebr. : 1895, Woodworth v. Thompson, 44 Nebr.
311, 62 N. W. 450 (original pleading, admitted) ;
1899, Miller v. Mcodemus, 68 id. 352, 78 N. W.
618 (original of amended answer, receivable) ;
jVr r.: 1889, Tisdale v. R, Co., 116 N. Y. 416,
420, 22 N. E. 700 (original answer, as modified
by a stipulation narrowing the issue, allowed to
be used) ; Or.: 1899, Sayre v. Mohney, 35 Or.
141, 66 Pac. 526 (original of verified pleading,
afterwards amended, receivable) ; S. D. : 1896,
Corbett v. Clongh, 8 S. D. 176, 65 N". W. 1074
(superseded complaint, verified by the attorney
only, held inadmissible, unless the party's direc-
tion or sanction is shown for the parts offered) ;
1903, La Rue v. St. Anthony & D. E. Co., —
id. — , 95 N. W. 292 (superseded complaint,
signed by the attorney, held not admissible
unless the plaintiffs had personally sanctioned
its recitals) ; Tex. : 1859, Coats v. Elliott, 23
Tex. 606, 613 (said oMter that a superseded
pleading might pioperly have been excluded) ;
1896, Barrett »-. Featherston, 89 id. 567, 35
S. W. 11, 36 S. W. 245 (superseded answer, ad-
mitted ; Boots n. Canine, Ind., followed ; Hun-
ter, J., diss., in the Civ. App. Ct.) ; 1902, Houston
E. & W. T. K. Co. V. De Walt, 96 id. 121, 70
S. W. 531 (former unamended pleading, re-
ceived) ; Utah : 1896, Kilpatrick Co. v. Box, 13
Utah 494, 45 Pac. 629 (original answer before
amendment, admitted) ; Wis. : 1875, Leavitt
V. Cutler, 37 Wis. 46, 53 (original and first
amended answer, in an action for breach of
man-iage-promise, held inadmissible to enhance
damages) ; 1886, Folger v. Boyinton, 67 id. 447,
30 N. W. 715 (original complaint under oath,
in an action for a crop-contract, held admissible
" by way of impeachment or as admissions of
the plaintiffs") ; 1896, Lindner v. Ins. Co., 93
id. 526, 630, 67 N. W. 1125 (loss by fire ; por-
tions of the answer withdrawn by the defend-
ant, held receivable ; Leavitt v. Cutler, distin-
guished) ; 1901, Hocks v. Sprangers, 113 id. 123,
87 N. W. 1101, 89 N. W. 113 (defendant's orig-
inal default and subsequent reopening of the
case, excluded),
1251
§ 1067 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
the action and, if there is an answer, the real issues in the cause, and for no other pur-
pose. But they cannot be referred to as proof of any fact unless they ai-e introduced in
evidence on the trial with at least .some chance for explanation. The original complaint
was sought to be read to the jury [during the closing argument] to show what the allega-
tion of the plaintiffs was as to the contract. This was to prove the admissions of the
plaintiffs as to what it was, and therefore should have been introduced as any other tes-
timony in the case, so as to give the plaintiffs a chance to explain such an admission.
But that old complaint, not then being the complaint in the cause, should of course be
introduced in evidence like the records in another case. . . . To read that complaint to the
jury would not be reading any part of the pleadings in the cause, either to ascertain the
issues or the natui-e and scope of the action. I never heard of such a practice as here
attempted, and in my opinion it is as illogical as it is unlawful." "
3. Vicarious Admissions (by other than the Party himself).
§ 1069. In general. Admissions, in the sense here concerned, are merely
the prior assertions of the party, which, being inconsistent with his present
claim, serve now to discredit it by their discrepancy {ante, § 1048). How,
then, can the utterances of any other person than the party himself serve
for that purpose ? In other words, how do other persons' statements become
receivable as vicarious admissions ?
Three different modes suggest themselves as possible. By preappointmenf,
the party may designate a person whose utterance he assents to beforehand
as correct, and this utterance, when made, thus represents the party's own
belief. By adoption, the party may assent to a statement already uttered
by another person, which thus becomes eifectively the party's own admis-
sion. By privity of interest and by agency the party's rights may in the sub-
stantive law be affected by the acts of another person, and thus the other
person's admissions may equally be available evidentially. These various
modes may now be noticed in order ; though it will be found that some
classes of statements have to be considered from more than one of these
three points of view.
§ 1070. Admissions by Reference to a Third Person. If a party, instead
of expressing his belief in his own words, names another person as one
whose expected utterances he approves beforehand, this amounts to an antici-
patory adoption of that person's statement; and it becomes, when made,
the party's own. This species of admission is well recognized,' though not
' Accord: 1893, Shipley v. Eeasoner, 87 la. mala fides ani. of unfairness in probing an op-
555, 558, 54 N. W. 470 (explaining away Cross poneiit's evidence) ; 1804, Buit v. Palmer, 5 id.
V. Garrett, 35 id. 480, 486 ; Manners v. McClel- 145 (defendant, on a demand made, said "You
limrt, 74 id. 318, 323, 37 N. W. 389 ; Braiinum must apply to J. A., and he will [lay you" ; A.'s
V. O'Connor, 77 id. 632, 635, 42 N. W. 504) ; admission received ; "where a person is referred
1896, Leach ». Hill, 97 id. 81, 66 N. W. 69; to, to settle and adjuiit any account or business,
1895, Woodworth v. Tliompson, 44 Nebr. 311, what he says, if it is connected with the busi-
62 N. W. 450 ; 1886, Folger v. Boyinton, 67 ness which is referred to him, is evidence ") ;
Wis. 447, 30 N. W. 715 (see quotation supra). 1806, Darnel v. Pitt, 1 Camp. 364 note (defend-
1 1794, Lloyd v. Willan, 1 Esp, 178 (de- ant said, "If 0. will say that he did deliver
fendant proposed to pay, if the plaintiff's porter the goods, I will pav for them " ; C.'s statement
would make an affidavit of the delivery of the held admissible) ; 1807, Brock ». Kent, ib., note
goods ; the affidavit was made ; the defendant (defendant "desired him to euquire of J. about
was then "precluded from going into any evi- it," J. being a person who had paid monev ;
deuce whatever on the case," on the ground of Jones' statement held admissible) ; 1808, Wil-
1252
§§ 1048-1087] ASSENT BY SILENCE. § 1071
frequently available. In earlier times it had a prototype in a not un-
common contract-clause among merchants by which the obligor bound
himself to perform when one or more specified persons should make an
oath that certain facts existed, upon which the obligation became due,
irrespective of the truth of the sworn statement ; and litigation over such
contracts was not infrequent up to the time of the Stuarts.^ This ad-
mission by reference brings us, indeed, close to the principle of awards
by arbitrators ; for, though the validity of the award rests on a contractual
basis {ante, § 1056) yet the process is one of reference to a third person's
pronouncement.^
Admission by reference differs from admission by adoption in that in the
latter form the third person's statement is already made ; the varieties of this
form we may now proceed to consider.
§ 1071. Third Person's Statement assented to by Party's Silence; General
Principle. Qui tacet consentire videtur, " silence gives consent," are ancient
maxims, which have ever been taken to be unquestioned and have a larger
scope than their application in the law of evidence. But, like all maxims,
they merely sum up a broad principle, and cannot serve, without decided
qualification, as practical and precise rules. Silence implies assent to the
correctness of a communication, but on certain conditions only. The general
principle of Kelevancy (ante, § 29) tells us that the inference of assent may
safely be made only when no other explanation is equally consistent with
silence; and there is always another such explanation — namely, ignorance,
or dissent — unless the circumstances are such that a dissent would in or-
dinary experience have been expressed if the communication had not been
correct. This much has always been conceded judicially when the question
Hams V. Junes, 1 Camp. 364 (defendant's letter list of the prices and dates of puvchase of the
told the plaintiff "if she wanted any farther in- goods, stating that he did not know them, and
formation regarding the affairs of tlie deceased, the next day the wife handed the police the list
she should apply to a Mr. R." ; L. C. Ellen- in his presence; the list was received, as an
borough: "If a roan refers another upon any admission of the prices and dates) ; 1856, Chad-
particular business to a third person, he is sey v. Greene, 24 Conn. 562, 572 (warranty of
bound by what this third person says or does a horse; statements of N., to whom defendant
concerning it, as much as if that had been said referred plaintiff for information as to defend-
or done by himself") ; 1822, Garnet v. Ball, 3 ant's responsibility, received) ; 1853, Chap-
Stark. 160 (trover for a horse ; the plaintiff had man v. Twitchell, 37 Me. 59 ("Twitchell can
said " that if the defendant would take his oath show you where the corner is" ; T.'s showing
that the horse was his, he should keep him " ; admitted) ; 1878, Lambert v. People, 6 Abb.
the fact of the defendant's affidavit being made N. C. 181, 193 (statements held not on the facts
was received) ; 1828, Hood i: Reeve, 3 C. & P. an admission by reference) ; 1869, Allen v.
632 (defendant's letter "I refer you to liim Killinger, 8 Wall. 480, 486 (rule recognized),
thereon," meaning one H., held to admit H.'s The following case belongs somewhere here :
statement respecting the account, though H.'s 1895, State v. Kent, 4 K. D. 577, 62 N. W.
statement was made at another time ; "any- 631 (the witness had written at defendant's die-
thing that he savs about the account is adinis- tation a certain account, which he was allowed
sible ") ; 1836, Syhray r. White, 1 M. & W. to read and hand in, as embodying the defend-
435 (injury to a hor.se ; defendant said that if a ant's admission).
miners' jury would say that the shaft where the ^ See some early examples cited in Pollock &
horse was killed was his, he would pay ; the Maitland, Hist. Eng. Law, II, 224. There are
miners' verdict received to charge the defend- later ones scattered through Croke's reports,
ant ; " the jury are in the nature of his ao- * Distinguish the question whether the
credited agents") ; 1884, R. f. Mallory, 15 Cox party's own statements, made to arbitrators,
Cr. 456 (knowing receipt of stolen goods ; the may be excluded as being made with a view
defendant referred the police to his wife for a to compromise (ante, § 1062, note).
1253
§ 1071 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
has been presented. But the force of the brief maxim has always been such
that in practice (and especially in the original English tradition) a sort of
working rule grew up that lohatever was said in a party's presence was re-
ceivable against him as an admission, because presumably assented to. This
working rule became so firmly entrenched in practice that frequent judicial
deliverances became necessary in order to dislodge it ; for in this simple and
comprehensive form it ignored the inherent qualifications of the principle.
These qualifications, in varying phraseology, are expounded in the following
passages :
1826, Duncan, J., in Moore v. Smith, 14 S. & R. 388, 393 : "The reason why this species
of evidence is given is because the party by his silence is supposed to acquiesce. Qui
facet consentire videtur. That presupposes a declaration or proposition made to him which
he is bound either to deny or to admit. . . . [In the present case], the only evidence is
that he was present at the view [of the land] ; that he was on the land, the tract ; and
he was acting as chain-carrier [when remarks were made by the litigants]. This is quite
too loose. Two men, at this rate, might talk a third out of his whole estate, with a wit-
ness ! Nothing can be more dangerous than this kind of evidence. It should always
be received with caution ; and never ought to be unless the evidence is of direct declara-
tions of that kind which naturally calls for contradiction, — some assertion made to the
man with respect to his right, which by his silence he acquiesces in."
1838, Phelps, J., in Vail v. Strong, 10 Vt. 457, 463 : " It is sometimes said that, if a
fact, which makes against the party, is stated in his presence, and is not contradicted by
him, his silence raises a presumption of its truth. To this position we cannot accede.
The mere silence of the party creates no evidence, one way or the other. There are,
indeed, cases where the silence of the party creates a presumption or inference against
him ; but this presumption derives all its force from the circumstances, under which the
statement is made, which may call for a denial. If the party is under a moral or honor-
ary obligation to disclose, or if his reputation or interest is jeoparded by the statement,
he has a strong inducement to deny it, if he can do so with truth. His silence, under
such circumstances, affords an inference against him, which is more or less strong, in pro-
portion to the inducement to make the denial. But even here, the evidence, thus created,
rests altogether upon the attendant circum.stancps. If, for instance, the party be engaged
in defending his reputation or his rights, an assertion, bearing upon the subject under
discussion, and unfavorable to him, calls for a denial, and if there be not a denial, a pre-
sumption of Its truth ai'ises. But we know of no obligation upon the party to answer
every idle or impertinent inquiry. He has the right to be silent, unless there be good
occasion for speaking. We cannot admit that he is bound to disclose his private affairs,
at the suggestion of idle curiosity, whenever such curiosity is indulged, at the hazard of
being concluded by every suggestion, which may be suffered to pass unanswered. The
true rule we understand to be this. Evidence of this character may be permitted to go to
the jury, whenever the occasion, upon which the declaration is made in the presence of
the party, and the attendant circumstances, call for serious admission or denial on his
part ; but the strengtli of the evidence depends altogether upon the force of the circum-
stances and the motives, which must impel him to an explicit denial, if the statement be
untrue. But if no good reason exist to call for disclosure, and the party decline to enter
into useless discussion, or answer idle curiosity, no legitimate inference to his prejudice
can be drawn from his silence."
1844, RedJieU, J., in Matlocki v. Lyman, 16 Vt. 113, 119 : " It seems to have been gen-
erally considered that all conversation had in the presence of a party, in regard to the
subject of litigation, might properly be given in evidence to the jury. . . . There are
many cases of this character when one's silence ought to conclude him. But when the.
1254
§§ 1048-1087] ASSENT BY SILENCE. § 1071
claim is made for the mere purpose of drawing out evidence, as, in the present case, it is
obvious must have been the fact, or when it is in the way of altercation, or, in short, un-
less the party asserting the claim does it with a view to ascertain the claim of the person
upon whom he makes the demand, and in order to know how to regulate his own conduct
in the matter, and this is known to the opposite party, and he remains silent, and thereby
leads the adversary astray, mere silence is, and ought to be, no ground of inference
against any one. The liabilities to misapprehension, or misrecollection, or misrepresenta-
tion are such, that this silence might be the only security. To say, under such a dilemma,
that silence shall imply assent to all which an antagonist may see fit to assert, would in-
volve an absurdity little less gross than some of the most extravagant caricatures of this
caricatiire loving age. With some men, perhaps, silence would be some ground of
inferring assent, and with others none at all. The testimony then would depend upon
the character and habits of the party, — which would lead to the direct trial of the parties,
instead of the case."
1847, Shaw, C. J , in Com. v. Kenney, 12 Mete. 235, 237 : " In some cases, where a
similar declaration is made in one's hearing, and he makes no reply, it may be a tacit ad-
mission of the facts. But this depends on two facts : first, whether he hears and under-
stands the statement, and comprehends its bearing ; and secoudly, whether the truth of
the facts embraced in the statement is within his own knowledge, or not ; whether he is
in such a situation that he is at liberty to make any reply ; and whether the statement is
made under such circumstances, and by such persons, as naturally to call for a reply, if
he did not intend to admit It. If made in the course of any judicial hearing, he could
not interfere and deny the statement ; it would be to charge the witness with perjury,
and alike inconsistent with decorum and the rules of law. So, if the matter is of some-
tliing not within his knowledge; if the statement is made by a stranger, whom he is not
called on to notice ; or if he is restrained by fear, by doubts of his rights, by a belief that
his security will be best promoted by his silence ; then no inference o£ assent can be drawn
from that silence. Perhaps it is within the province of the judge, who must consider
these preliminary questions in the first instance, to decide ultimately upon them."
1891, Boaen, L. J., in Wiedemann v. Walpole, 2 Q. B. 534, 539 : " There must be some
limitation placed upon the doctrine that silence when a charge is made amounts to evi-
dence of an admission of the truth of the charge. The limitation is, I think, this : Silence
is not evidence of an admission, unless there are circumstances which render it more
reasonably probable that a man would answer the charge made against him than that he
would not."
These limitations cannot be questioned in point of abstract principle. But
it is perhaps questionable whether the specified conditions should be required
to appear in a particular case before receiving the third person's statement
made in the party's presence. Such strictness was proper enough in earlier
days, up to fifty years ago, when the party himself was disqualified as a
witness and therefore could not by his own testimony protect himself against
undue inferences drawn from his silence. But to-day there is ample oppor-
tunity thus to counteract the risk of misconstruction ; moreover, the rigid
enforcement of the conditions above specified would tend to introduce tech-
nicalities and to cumber the issues. It would seem to be better to rule at
least that any statement made in the party's presence as an auditor is receiv-
able, unless he can show that he lacked either the opportunity or the motive
to deny its correctness ; thus placing upon the opponent of the evidence the
burden of showing to the judge its impropriety. But the burden is in prac-
tice generally left upon the proponent to show that the requisite conditions
1255
§ 1071
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
existed ; ^ though the middle course is sometimes taken of leaving the ques-
tion to the jury.^
§ 1072. Same : Specific Hules ; Statements made during a Trial, under
Arrest ; Notice to Quit ; Omission to Schedule a Claim, etc. (1) The ap-
plication of the principle is of course commonly attended by little diffi-
culty ; and such doubt as may arise depends on particular circumstances not
leading to any specific rule. Most of the rulings cannot properly serve as
precedents.^
1 1894, People v. Mallon, 103 Cal. 513, 514,
37 Pac. 512 ; 1859, Drumright v. State, 29 Ga.
430. Compare othei' cases in the next section.
2 1824, State v. Perkins, 3 Hawks 377
(whether the defendant was by intoxication in-
capable of understanding what was said to him,
held properly left to the jury).
1 Siig. : 1834, Hayslep v. Gymer, 1 A. & E.
162 (plaintiffs statements as to a gift, received
because made to the defendant without dissent) ;
1877, Bessela v. Stern, L. R. 2 G. P. D. 265
(breach of marriage-promise ; defendant's silence
when taxed by the plaintiff with a promise,
admitted, and also sufficient to go to the jury
as corroboration under the statute) ; 1892, R.
V. Mitchell, 17 Cox Or. 503, 508 (dying de-
clarations in defendant's presence excluiled, be-
cause a denial at that moment was not to he
expected) ; Ala. : 1858, Fuller v. Dean, 31 Ala.
654, 657 (slander) ; 1876, Campbell v. State, 55
id. 80, 82 (larcenv) ; 1876, Matthews u. State, ib.
187, 194 (rape) ;" 1886, Williams v. State, 81 id.
1, 6, 1 So. 179 (homicide ; co-defendant's decla-
rations, admitted) ; 1895, Peck v. Ryan, 110 id.
333, 17 So. 733 (claim to a debt) ; 1902, Davis
V. State, 131 id. 10, 31 So. 569 ; Oal. : C. C. P.
§ 1872, par. 3 (" an act or declaration of another,
in the presence and within the observation of a
party, and his condact in relation thereto," is
admissible) ; 1867, People v. McCrea, 32 Cal. 98 ;
1879, People v. Ah Yute, 53 id. 613 ; 1895, Peo-
ple V. Youug, 108 id. 8, 41 Pac. 281 ; 1899,
Tibbet «. Sue, 125 id. 544, 58 Pac. 160 (state-
ment about a loan to a third person) ; Fla. : 1903,
Weightnovel v. State, — Fla. — , 35 So. 856
(physician charged with abortion) ; Gfa. : Code
1895, § 5195, Cr. C. § 1003 ("acquiescence or
silence, when the circumstances require an
answer or denial or other conduct, may amount
to an admission ") ; 1847, Carter v. Buchannon,
3 Ga. 513, 521 (" what one party says to an-
other without contradiction is admissible, but
what a stranger says to a party may, although
uncontradicted, not always be evidence") ; 1857,
Morris v. Stokes, 21 id. 652, 571 ; 1859, Block
V. Hicks, 27 id. 622, 524 ; 1859, Phillips v. State,
29 id. 103, 108 ; 1874, Markham v. O'Connor,
52 id. 183, 197 ; 1891, Small v. Williams, 87
id. 681, 685, 13 S. E. 689 ; 1892, Giles v. Van-
diver, 91 id. 192, 194, 17 S. E. 115 ; 1899,
Chapman l\ State, 109 id. 157, 34 S. E. 369
(certain vague threats of a wife in defendant's
presence, exclnded) ; 1895, Ware v. State, 96 id.
349, 23 S. E. 410 ; 1903, Graham ». State, —
id. — , 45 S. E. 616 (mere silence when arrested,
excluded) ; Ind. : 1871, Pierce v. Goldsberry, 35
1256
Ind. 317, S20 ; 1876, Blessing v. Dodds, 53 id.
96, 101 ; 1884, Surber v. State, 99 id. 71, 73 ;
1888, Conway v. State, 118 id. 482, 485, 21 N. E.
285 ; Ky. : 1898, Franklin v. Com., 105 Ky. 237,
48 S. W. 986 ; Mass. : 1839, Com. v. Call, 21
Pick. 516, 521 (accomplice's statements) ; 1854,
Boston & W. R. Co. v. Dana, 1 Gray 83, 104 ;
1854, Com. V. Harvey, ib. 487; 1861, Larry v.
Sherburne, 2 All. 34 (plaintiffs silence when
offered payment by a third person, held not an
admission of that person's liability) ; 1862, Hil-
dreth v. Martin, 3 id. 371 (preceding case ap-
proved) ; 1879, Drury B. Hervey, 126 Mass. 519,
522 (not admissible " unless the circumstances
are such that a denial would naturally be ex-
pected or an explanation of some sort would
naturally be called for ") : 1879, Whitney v.
Houghton, 127 id. 527 ; 1883, Com. v. Brailey,
134 id. 527, 630 ; 1888, Com. v. Funai, 146 id.
670, 16 N. E. 458 ; 1895, Com. v. McCabe, 163
id. 98, 39 N. E. 777 ; 1901, Com. v. O'Brien,
179 id. 533, 61 N. E. 213 ; Mich. : 1895, People
V. Fowler, 104 Mich. 449, 62 N. W. 572 ; Mo. :
1896, State v. Hill, 134 Mo. 663, 36 S. W. 223
(the party, when charged with being the father
of a child, " kinder laughed " ; admitted) ;
N. H. : 1860, Corser v. Paul, 41 N. H. 24, 29
(demand of payment of a note) ; N. J. : 1857,
Donnelly v. State, 26 N. J. L 463, 504, 601, 612
(dying declarations as to the deceased's assail-
ant ; admitted) ; N. V. : 1887, People v. Dris-
coll, 107 ST. Y. 414, 424, 14 N. E. 305 (similar
to Donnelly o. State, N. J.); 1900, People v.
Page, 162 id. 272, 56 iSf. E. 750 (rape ; silence
when told by a third person that the prosecutrix
was charging the defendant with the rape, ex-
cluded ; unsound) ; 1902, People v. Smith, 172
id. 210, 64 N. E. 814 (there must be a motive
to respond or to act) ; 1903, Seidenspinner v.
Metrop. L. Ins. Co., 175 id. 95, 67 N. E. 123
(receipt of sick benefits is an admission by the
beneficiary of sickness existing at the time) ;
1903, Stecher Lith. Co. v. Inman, ib. 124, 67
N. E. 213 (there must be a motive to reply;
applying this to a third person's statements as
to defective goods ; Parker, C. J., and two
others, diss., on the wholly untenable ground
that such evidence is admissible only in criminal
cases) ; N. C. : 1877, Francis v. Edwards, 77
N. C. 271, 274 (unanswered remarks of an in-
toxicated person, treating defendant as a partner,
held not admissible) ; 1883, Guy w. Manuel, 89
id. 83, 86 (declarations of a boundary, in the
defendant's presence, before he had an interest,
excluded) ; 1899, Webb v. Atkinson, 124 id.
447, 32 S. E. 737 ; 1902, Virginia C. C. Co. u.
§§ 1048-1087]
ASSENT BY SILENCE.
§ 1072
Among the commoner classes of cases, it may be noted that a tenant's
silence upon receiving a notice to quit was formerly a common instance of the
principle's application.^ Under this principle, alsa, comes the inference from
a party's omission to file a claim in a list of debts or the like,^ though this is
sometimes hardly to be distinguished from the analogous instances of silence
at a trial {infra, par. 3) and failure to answer a letter (post, § 1073); distin-
guish also the inference, from a party's failure to testify or to make complaint,
of his consciousness of the weakness of his cause (ante, §§ 284, 289), where
the inference does not involve an assent to a third person's statement.
(2) By way of specific rule, carrying out the principle already examined, it
is sometimes said that the proponent of the evidence must show, not merely
that the party was present * when the remark was made (and " presence " of
course implies " proximity within a distance sufficient to permit hearing "),
but also that the party actually heard and understood what was said." But
this seems too strict ; the presence of a party may be assumed to indicate that
he heard and understood. So, also, it is sometimes said that the proponent
must show that the party had knowledge of the facts stated, since otherwise
Kirven, 130 id. 161, 41 S. E. 1 ; N. D. : 1898,
Paulson Mercantile Co. v. Seaver, 8 N. D. 215,
77 N. W. 1001 ; Pa. : 1826, Moore v. Smith, 14
S. & E. 388, 392 (conversation between two
others, in defendant's presence, during a survey,
not admitted ; see quotation supra) ; 1847,
McClenkan v. McMillan, 6 Pa. St. 366 ; S. C. :
1820, State v. Eawls, 2 Nott & McC. 331, 336
(gaming ; defendant's silence, when called by
other players with a certain name, held to be
evidence of his name) ; U. S. : 1853, Turner v.
Yates, 16 How. 14, 27 (declarations admitted
because they were " of such a character and
made under such circumstances as imperatively
to have required them to deny their correctness
if they were untrue ") ; Utah : 1903, State v.
Mortensen, — Utah — , 73 Pac. 562 (state-
ments made over the body of the deceased, ad-
mitted on the facts) ; Vt. : 1838, Vail v. Strong,
10 Vt. 457, 463 (see quotation supra) ; 1839,
Gale V. Lincoln, 11 id. 152, 155 ; 1844, Mat-
tocks V. Lyman, 16 id. 113, 119 (see quotation
supra) ; 1851, Hersey v. Barton, 23 id. 685, 688
(statements to a third person in defendant's
presence, excluded) ; 1896, State v. Magoon, 68
id. 289, 35 Atl. 310.
^ 1809, Doe V. Biggs, 2 Taunt. 109 (silence
on receiving a notice to quit, received as evi-
dence of an admission of the term of tenancy) ;
1811, Doe V. Wombwell, 2 Camp. 559 (notice to
tenant to quit ; his failure to object, with his
language at the time, held to be an admission of
the time of beginning of tenancy) ; 1811, Thomas
V. Thomas, ib. 647 (failure to object, on personal
service of notice to quit, may be an admission ;
but it " must depend upon circumstances " ; e. g.
the defendant might be illiterate, or the server
might have left too soon for objection to be
made) ; 1811, Doe v. Forster, 13 East 405 (the
tenant's knowledge of contents and his demeanor
may amount to an admission ). Compare the rule
for an account rendered {post, § 1073).
Distinguish the question whether the land-
lord's receipt of rent without protest amounts to a
waiver of default in payment : 1810, Doe u.
Calvert, -2 Camp. 387.
* 1811, Hart v. Newman, 3 Camp. 13 (in-
solvent's failure to schedule a bill of exchange
"is not enough to prove that the amount was
not then due ") ; 1830, Nicholls v. Downes,
1 Mo. &Rob. 13 (excluded ; L. C. J. Tenterden :
"Can it be allowed that a party shall be ad-
mitted to claim, in a court of justice, a debt,
after having on oath declared there was none
such?" Counsel then cited " a similar case in
which Lord Ellenborough had said that the
defendant's having cheated his assignees was no
reason why another person should cheat him " ;
L. C. J. : "I cannot assent to that") ; 1878,
Eaton V. New England T. Co., 68 Me. 63, 66
(omission to claim the present property in a
garnishee or trustee answer in another suit,
received) ; 1859, Stevens v. Miller, 13 Gray 282
(plaintifi"s settlement of a debt without mention
of counterclaim arising from the same trans-
action, admissible) ; 1840, Miller v. Heck, 9
"Watts 439, 445 (executor's inventory, omitting
a claim now made, received).
* This much is always understood nowadays :
1903, People ;;. Philbon, 138 Cal, 530, 71 Pac.
650 ; 1895, Josephi v. Furnish, 27 Or. 260, 41
Pac. 424 (a conversation held twelve feet away
and around a corner out of sight, excluded).
» 1903, Weightnovel v. State, — Fla. — ,
35 So. 856 (the defendant being outside the
room); 1880, Jones v. State, 65 Ga. 147, 150
(the^statement must be made in his presence
and hearing, and the witness "must be certain
thereby that his attention was arrested ") ; 1860,
Queener v. Morrow, 1 Coldw. 123, 130 ("it is
indispensable that the party should have heard
and understood the statement ").
1257
1072
EXTEAJUDICIAL ADMISSIONS.
[Chap. XXXV
he might have hesitated to contradict.^ This, again, is perhaps too strict, for
a party's admission (as already noted in § 1053) is receivable irrespective of
his personal knowledge.
(3) On the other hand, if on the circumstances it appears that the party
was in fact physically disabled from answering, his silence of course signifies
nothing, and the statement is inadmissible.^ So, too, if the party had plainly
no motive for responding, his silence permits no inference; and this is often
the case where the statement is addressed to another person, and not to the
party himself.^ Much more is the silence without significance when a posi-
tive deterrent motive, such as fear, was operating upon the party.^ Certain
situations in particular may furnish a positive motive for silence without re-
gard to the truth or falsity of the statement. Whether the fact that the party
is at the time under arrest creates such a situation has been the subject of
opposing opinions ; a few Courts (for the most part in acceptance of an early
Massachusetts precedent), by a rule of thumb exclude the statement invari-
ably ; but the better rule would seem to allow some flexibility according to
circumstances.^" But where the party is in a court-room, and a trial or
« 1841, Robinson v. Blen, 20 Me. 109 ; 1838,
Edwards v. Williams, 2 How. Miss. 846, 849.
' 1895, Dean „. State, 10.5 Ala. 21, 17 So.
28 (remarks addressed to a party who was shot
and unable to speak, excluded) ; 1899, Lallande
V. Browti, 121 id. 513, 25 So. 997 (conversation
in presence of defendant while ill, admitted) ;
1893, Springer v. Byrara, 137 Ind. 15, 25, 36
N. E. 361 (remark made by the brother of the
injured plaintiff, before the latter in the ambu-
lance, admitted) ; 1897, People v. Koerner, 154
N. Y. 355, 48 N. E. 730 (remarks in the pres-
ence of one unconscious, excluded, though there
was evidence that he was shamming uncon-
sciousness) ; 1903, State v. Epstein, — R. I.
— , 55 Atl. 204 (statements in the presence of
an accused who was physically in such suffering
as to be probably unable to understand or reply,
excluded) ; 1896, Gowen v. Bush, 22 C. C. A.
196, 76 Fed. 349 (statements addressed to a
plaintiff when he was semi-unconscious after an
injury, excluded).
* 1852, Lawson v. State, 20 Ala. 65, 68, 80
(fornication ; conversation in the presence of
the female defendant, as to the party to be
charged by the doctor, just after the delivery
of the child, held inadmissible) ; 1851, Rolfe v.
Eolfe, 10 Ga. 143, 145 (excluded on the facts) ;
1890, State v. Mnllins, 101 Mo. 514, 518, 14
S. W. 625 (remarks addressed to third persoas
in defendant's presence, not admitted) ; 1882,
State V. Kemp, 87 N. C. 540 (adultery ; the
children of the female defendant in her presence
called the male defendant "papa"; held, an
admission of pai'entage and therefore of inter-
course) ; 1895, Fry v. Stowers, 92 Va. 13, 22
S. E. 500 (a conversation in D.'s presence but
not addressed to him).
' 1858, Bob V. State, 32 Ala. 560, 565 (re-
marks of white persons, in the master's house,
charging guilt upon a slave, whose shoe-tracks
1258
were being measured, excluded, because of his
condition of " subordination and discipline").
^^ The cases on both sides are as follows :
Eny. .- 1837, R. u. Bartlett, 7 C. & P. 832 (de-
fendant's silence, when charged, while in cus-
tody, by his wife's remark to him, held snfficient
to admit her remark) ; 1866, R. u. Jankowski,
10 Cox Or. 365 (silence on being identified at
the police station, admitted; but it "onght
not to weigh against him ") ; Can. .- 1892, R.
V. Drain, 8 Manit. 535 (assaulted person's state-
ment in the presence of the accused under arrest,
admitted) ; Aln. : 1852, Spencer u. State, 20
Ala. 24, 27 (declarations by a slave in defend-
ant's presence, admitted) ; Cal. : 1874, People
V. Estrado, 49 Cal. 171 (co-defendant's state-
ment to a police-officer, admitted ; the defend-
ant being afterwards allowed to make his
statement) ; 1883, People v. Ah Fook, 64 id.
380, 1 Pac. 347 (statement of third person,
admitted ; 1898, People v. Dole, 122 Cal. 486,
497, 55 Pac. 581 (undecided) ; 1901, People v.
Williams, 133 id. 165, 65 Pac. 323 (silence
when under arrest, excluded on the facts) ; 1901,
People V. Amaya, 134 id. 531, 66 Pac. 794
(undeuied charges made against the defendant,
under arrest, by the deceased on his death-bed,
admitted ; Com. v. Kenney, Mass., explained,
and the doctrine repudiated that the mere fact
of arrest excludes such statements) ; Ga. : 1902,
Simmons v. State, 115 Ga. 574, 41 S. E. 983
(here excluded, the accused's hearing, etc., not
being clearly shown); Ky. : 1901, Porter v.
Com., — Ky. — , 61 S. W. 16 (silence of de-
fendant, under arrest, during an accomplice's
confession in his presence, excluded) ; La. :
1882, State v. Diskin, 34 La. An. 919, 921
(murder ; silence when charged by the dying
man, not admitted ; here the officer in charge
told the defendant to be quiet) ; 1887, State v.
Estoup, 39 id. 906, 908, 3 So. 124 (Uke the
§§ 1048-1087]
ASSENT BY SILENCE.
§ 1072
other judicial proceeding is going on, his failure to deny statements made
publicly by another person in the course of the proceeding would obviously
admit of no inference against him, whether he attends as party or merely as
witness ; for in either case he is prevented by the dictates of decorum from
making open interruption and he knows that he may at the proper time
make all necessary denials:
1829, Parke, J., in Melen v. Andrews, M. & M. 336 (excluding the testimony of a wit-
ness on a former trial in the present plaintiff's presence, now offered against the plaintiff) :
" It is true that the plaintiff might have cross-examined or commented on the testimony.
But still, in an investigation of this nature, there is a regularity of proceeding adopted
which prevents the party from interposing when and how he pleases, as he would in a
common conversation. The same inferences therefore cannot be drawn from his silence
or his conduct in this case which generally may in that of a conversation in his presence."
1830, Messrs. Carrington and Payne, Note to 4 C. & P. 243: " The reason why anything
said in the presence of the prisoner is receivable in evidence against him is that, being
said in his hearing, he might have contradicted it had he chosen. Now this seems hardly
to apply to what takes place at the time of an examination before the magistrate ;
because, as the prisoner could not keep up a running commentary of contradictions, the
reason of admitting such evidence appears to fail." ^^
next case) ; 1899, State v. Sadler, 51 id. 1397,
26 So. 390 (silence when charged while under
arrest, inadmissible) ; 1901, State v. Carter,
106 La. 407, 30 So. 895 (similar rule, de-
ceased's declarations, excluded) ; Mass. : 1847,
Com. V. Kenney, 12 Mete. 235 (statements by
an officer and by the complaining party, not
received under the circumstances) ; 1866, Com.
II. Walker, 13 All. 570 (i(ientifioation of de-
fendant by a witness, excluded) ; 1876, Com. v.
Brown, 121 Mass. 69, 80 (statements not re-
ceivable, unless " he was at liberty to reply,"
and the statement ' ' was made by such a person
and under such circumstances as naturally call
for a reply unless he intends to admit it ") ;
1877, Com. V. McDermott, 123 id. 440 (conver-
sation between an officer and the defendant's
companion, excluded) ; 1892, Com. v. Trefethen,
157 id. 180, 198, 31 N. E. 961 (rule in Com. v.
Brown approved ; effect of equivocal replies,
considered) ; 1902, Smith v. Duncan, 181 id.
435, 63 N. E. 938 (statements by a police
officer to the defendant after an injury, but
without arrest, admitted on the facts) ; Mo. :
1895, State v. Murray, 126 Mo. 611, 29 S. W.
700 (defendant's brother, a co-defendant, de-
clared in the presence of the defendant under
arrest that the latter was the one who had fired
the shot ; excluded) ; 1898, State v. B'olev, 144
id. 600, 46 S. W. 733 (silence when under
arrest can never be receivable as an admission) ;
N. Y. : 1874, Kelley v. People, 55 N. Y. 565,
572 (that an accused is under arrest is no objec-
tion ; here the identifying statements of the
injured person was received; "the declaration
was in substance a challenge to them to assert
their innocence if they were not guilty");
1900, People v. Kennedy, 164 id. 449, 456, 58
N. E. 652 (identifying remarks, made in an-
swer to a police ofHcer's inquiry, excluded, the
officer having forbidden the accused to reply) ;
-17
1259
1901, People v. Wennerholm, 166 id. 567, 60
N. E. 259 (silence during statements to au
officer just before arrest, admitted ; Martin and
Bartlett, JJ., diss.) ; 1902, People v. Smith,
172 id. 210, 64 N. E. 814 (silence of husband,
under aiTest, at the bedside of his wife, who was
semi-conscious, the physician having enjoined
silence, held not sufficient to admit the wife's
remarks and conduct) ; Oh. : 1881, Murphy v.
State, 27 Oh. St. 628 (two persons having stolen
goods in their possession were taken into cus-
tody ; the remarks of one, to the officer, in the
other's presence and on his behalf, admitted) ;
B. I. : 1903, State v. Epstein, — E. I. — , 55
Atl. 204 (statements by the injured person and
the police, the accused being present under
arrest, excluded ; narrow doctrine approved) ;
Term. : 1896, Green o. State, 97 Teiin. 50, 36
S. W. 700 (confession of an accomplice made
within hearing, admitted) ; 1896, Gardner v.
State, — Tex. Cr. — , 34 S. W. 945 (follow-
ing the Massachusetts rule of exclusion) ; 1901,
Eunderburk i-. State, — id. — , 61 S. W. 393
(same) ; 1901, Weaver v. State, 43 id. 340, 65
S. W. 534 (same) ; Utah : 1896, People v. Kess-
ler, 13 Utah 69, 44 Pac. 97 (the deceased charged
the accused with shooting him, but the chief of
police told the accused not to speak ; excluded) ;
fVash. ; 1897, State «. McCullum, 18 Wash. 394,
51 Pac. 1044 (confession by co-defendant, in the
presence of the defendant, kept there by com-
pulsion, excluded) ; TV. Fa. : 1899, State v.
Dickey, 46 W. Va. 319, 33 S. E. 231 (state-
ments by counsel of defendant under arrest, in
the latter's presence, to the prosecuting at-
torney, excluded).
" Mig.: 1821, R. v. Appleby, 3 Stark. 33
(defendant's silence when charged with guilt in
the testimony of a co-defendant before the magis-
trate, held not to admit the testimony) ; 1825,
Child V. Grace, 2 C. & P. 193 ("what was said
§ 1072
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
Here, however, must be distinguished the effect of another principle {ante,
§ 289), by which the party's failure to froduce testimony (in particular, to
testify himself) permits an inference as to his consciousness of the weakness
of his cause. The difference is that there the inference arises from his fail-
ure formally to take the stand at the proper time ; while here the inference,
if any, would arise from his failure to speak out informally at an improper
time.^^
by the magistrate before whom the matter had
been investigated, in the presence of both plain-
tiff and defendant," excluded; Best, C. J. : "If
such evidence is allowed, we shall have causes
tried at the police offices before they come
here"); 1829, Melen c. Andrews, M. & M. 336
(see quotation supra) ; 1830, R. v. HoUingshead,
4 C. & P. 242, semble (what a solicitor for the
prosecution said in defendant's jiresence, before
the magistrate, excluded) ; Oayi. : 1894, Thomp-
son V. Didion, 10 Manit. 246 (witnesses' testi-
mony in the presence of the party in court, but
not understanding their language, not taken as
admissions) ; Ala. : 1856, Abercromlne r. Allen,
29 Ala. 281 (contract for services ; plaiutiff's re-
marks on the subject, in defendant's presence,
at another trial before a justice of the peace,
exclud-d) ; 1884, Weaver v. State, 77 id. 26,
28 (remarks of the magistrate, excluded on the
facts); 1895, Collier v. Dick, 111 id. 263, 18
So. 522 (C. jiresent in court as spectator while
statements were made by M. on the stand ; ex-
cluded) ; Ga. : 1890, McElmurray a. Turner,
86 Ga. 215, 217, 12 S. E. 359 (testimony of the
party's own witness at a former trial, excluded,
on the theory that silence did not mean assent) ;
1894, Rell V. State, 93 id. 557, 559, 19 S. E.
244 (silence of accused during preliminary ex-
amination, excluded) ; Ind. : 1874, Broyles v.
State, 47 Ind. 251, 253 (testimony of opposing
witness in the party's presence, before a magis-
trate, excluded) ; 1880, Howard v. Howard, 69
id. 592, 600 (statements by a witness on the
stand, the defendant being then present as a
party, excluded) ; 1881, Johnson v. Holliday,
79 id. 161, 156 (defendant's failure to deny
statements of a witness before the magistrate,
excluded) ; 1882, Puett v. Beard, 86 id. 104,
106 (battery done at a trial before a justice
of the peace ; unanswered remarks of the op-
ponent's attorney, as to the battery, admitted,
the trial having been ended by the brawl) ;
Mass. : 1902, Keith u. Marcus, 181 Mass. 377,
63 N. E. 924 (declarations by the judge in the
party's presence, not admitted on the facts) ;
Mo.: 1890, State w. MuUins, 101 Mo. 514, 517,
14 S. W. 625 (silence of defendant at a coroner's
inquest, excluded) ; 1900, State v. Hale, 156 id.
102, 56 S. W. 881 (defendant on trial " nodded
his head" when a witness said, "Don't you
know that is the pocket-book ? " ; excluded,
but erroneously, for this was an explicit as-
sent) ; JV. H. ■ 1903, Little v. R. Co, — N. H.
— , 55 Atl. 190 (argument of plaintiff, after
evidence closed, challenging defendant to make
expeiiraents showing the ti;ue required for stop-
ping a car, held improper) ; iV. Y. : 1883, People
1260
V. Willett, 34 N. Y. 29 (experiments as to
identity, made during a coroner's inquest and
in defendant's presence, not admitted; "the
doctrine as to silence . . . does not apply to
silence at a judicial proceeding or hearing ") ;
N. C: 1849, Moffit v. Withei-spoon, 10 Ired.
185, 191 (silence during remarks of counsel
made in argument to the jury, held not to
make them admissible) ; 1887, Blackwell D. T.
Co. V. McElwee, 96 N. C. 71, 1 S. E. 676
(silence of defendant, and his failure later as a
witness to make denial, concerning the terms of
a letter admitted by his partner when giving a
deposition, to be correct, held inadmissible ; the
second point of the ruling is erroneous) ; Pa. .■
1903, Com. V. Zorambo, — Pa. — , 54 Atl.
716 (accused's silence when charged by a wit-
ness speaking before the magistrate, after the
hearing was over, but when he might still have
supposed it going on, excluded on the facts) ;
U. S. : 1853, Carr v. Hilton, 1 Curt. 390 (state-
ment of counsel, arguing before a Supreme Court,
that he had notified H., not then a party, not
received against H. now plaintiff) ; Vt. : 1853,
Brainard v. Buck, 25 Vt. 573, 579 (statements
at a chancery proceeding, by a party, in the
presence of the now defendant as a witness,
charging him with the receipt of money, and
not denied by him, excluded) ; 1863, State v.
Gilbert, 36 id. 145, 147 (statements of a witness
in defendant's presence before a magistrate, held
not admissible because of the party's silence).
Compare the cases as to a witness' self-am-
tradictioTis (ante, § 1042).
^' The confused recognition of this other prin-
ciple has sometimes led to rulings which are cor-
rect enough, but are not clearly placed upon the
proper ground : 1844, Jones v. Morrell, 1 C. &K.
266, 268 (defendant's depositions, offered before a
magistrate at a prior hearing, admitted, because
the plaintiff, then being there, after the reading
was " called upon to answer it," and did answer
not denying) ; 1848, Simpson v. Robinson, 12
Q. B. 512 (" We do not understand that ca.se
[of Melen v. Andrews, supral as deciding that
under no circumstances can such evidence be
admitted ; . . . for cases might certainly be con-
ceived in which a party by not denying a charge
so made might possibly afford strong proof that
the imputation was unjust") ; 1901, State v.
Dexter, 115 la. 678, 87 N. W. 417 (testimony
of wife of defendant at a former trial in his pres-
ence, admitted; he "had the opportunity to
deny it on the witness stand ").
Distinguish also the party's omission, at a for-
mer trial, to mention certain facts in his testi-
mony, for that is equivalent to a contradiction of
§§ 1048-1087] ASSENT BY SILENCE. § 1073
(4) It ought not to be necessary to note that the party's dental of the
third person's statement destroys entirely the ground for using it.^* Fur-
thermore, when by silence the statement is made admissible, tlie inference
of the party's assent may always (on the logical principle of § 32, ante)
be explained away in rebuttal by circumstances showing that the silence
was due to other motives.^*
(5) Certain distinct principles need here to be discriminated, (a) Silence
on the part of an accused person has sometimes a circumstantial significance,
not by way of assent to a third person's statement, but as indicative of a con-
sciousness of guilt ; this is better considered in connection with related topics
dealt with elsewhere (ante, § 284, failure to explain innocence ; post, § 1144,
consistent exculpatory statements; and post, § 1781, explaining the posses-
sion of stolen goods). (6) Statements of third persons, which, not receivable
by virtue of the present principle of assenting silence, may still be receivable,
against an accused person, as admissions of a co-conspirator^^ (post, § 1079),
or as parts of an entire conversation ^® (post, §§ 2115, 2119). (c) Statements by
a wife in the husband's presence, being admissible under the present principle,
may still have to satisfy the rule prohibiting testimony of wife against hus-
band (post, § 2232). (d) Silence may indicate assent in a contractual sense ;
this involves the substantive law, and is without the present purview.^'
§ 1073. Third Person's Document: 'Writing Sent to the Party or Found, in
his Possession ; TTnans-wered Letter ; Account rendered ; " Proofs of Loss " in
Insurance. The written statements of a third person may be so dealt with
by the party that his assent to the correctness of the statements may be in-
ferred, and they would thus by adoption become his own statements. What
sort of dealing with the document will suffice for this purpose has in several
respects been a mooted question. Leaving aside for the moment the particu-
lar problems as to corporation-books and depositions, which are affected by
independent considerations, the different situations may be grouped under
four heads: (1) Documents seen; (2) documents found in possession; (3) docu-
ments of demand, received but not answered ; and (4) documents made use of.
(1) In some circumstances, the party's mere seeing or perusal of a third
person's document, without responsive protest of denial or explanation, may
indicate an admission of correctness. But here each case virtually must
stand by itself.^
his present testimony (under § 1042, ante). The i" 1867, State v. Fitzhugh, 2 Or. 227, 232.
party's use of a witness' deposition at a former " 1844, Redfield, J., in Mattocks v. Lyman,
trial rests on a different application of the prin- 16 Vt. 113, 119.
ciple {post, § 1075). " 1822, Peele v. Ins. Co., 3 Mason 27, 81 (un-
1' 1903, People v. Morton, 139 Cal. 719, 73 derwriters' silence, as forming an acceptance of
Pac. 609 ; 1899, State v. Robinson, 51 La. An. the insured's abandonment of a vessel).-
694, 25 So. 380 (charges made against defend- i 1877, Jones v. Botsford, 17 N. Br. 62 (docu-
ant in his presence, by deceased, and then ment written by one under arrest, in the sheriff's
denied by the former, excluded); 1901, Brown presence, and forwarded by the latter to the
V. State, 78 Miss. 637, 29 So. 619 ; 1901, Low foimer's attorney, admitted against the sheriff) ■
V. State, 108 Tenn. 127, 65 S. "W. 401. 1902, Hull's Will, 117 la. 738, 89 N. W. 979
" 1867, Flanagin v. State, 25 Ark. 92, 94 (obituary notice, published with a party's sanc-
(threats or promises to the defendant, as ex- tion, held on the facts not an admission of
plaining his silence, admitted). sanity) ; 1898, Eaub v. Nisbett, 118 Mich. 248,
12G1
§ 1073 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
(2) The party's possession of a document made by a third person may well
be evidence of the party's knowledge of its -contents {ante, § 260) ; but is it
sufficient to justify an inference of assent to the statements contained therein ?
It is easy to imagine instances in which such an inference would be fallacious.
Yet, since the party may always exculpate himself and disown the inference
by pro^^[^g the true reason for his retention of the document, the question
remains whether the mere fact of possession ought not to suffice at the outset
to make the document receivable, subject to explanations that may later be
made. This question was in orthodox practice answered in the affirmative :
1794, Home Tooke's Trial, 25 How. St. Tr. 1, 120 ; treason ; a certain paper, addressed
to Mr. Tooke and found at his house, was offered against him ; Mr. Tooke : " I do not
know what papers may have been taken from my house ; but are letters written to me to
be produced as evidence against me? " L. C. J. Eyre : " Being found in your possession,
they undoubtedly are producible as evidence ; but, as to the effect of them, very much
will depend upon the circumstances of the contents of those letters, and whether answers
to them can be traced, or whether anything has been done upon them. A great number
of papers may be found in a man's possession which will be, prima facie, evidence against
him, but will be open to a variety of explanations ; and it is always a very considerable
explanation that nothing appears to have been done in consequence of the paper being
sent to him. But all papers found in the possession of a man are, prima facie, evidence
against him, if the contents of them have application to the subject under consideration."
Mr. Tooke : " The reason of my asking it is, I am very much afraid that, besides treason,
I may be charged with blasphemy." Lord Chief Justice Eyre : " You are not tried for
that. " INlr. Tooke : " It is notorious I do not answer common letters of civility, but I have
received and kept many curious letters. I received some letters from a man wiose name
is Oliver Verall, and he endeavoured to prove to me that he was God the Father, Son, and
Holy Ghost. He proved it from the Old Testament ; in the first place that he was God
the Father, because God is O Veral ; that is, God over all. He proved he was God the
Son, from the New Testament — verily, verily I am he; that is, Veral I, Veral I, I am
he. Now, if these letters, written to me, which I, from curiosity, have preserved, but
upon which I have taken no step, and to which I have given no answer, are produced
against me, I do not know what may become of me." L. C. J. Eyre : " If you can treat
all the letters that have been found upon you with as much success as you have these let-
ters of your correspondent, you will have no gi-eat reason for apprehension, even if that
letter should be brought against you."
1814, De Berengers Trial, Gurney's Rep. 223 ; Mr. Park, for the defendant : " Am I
to be answerable for all manner of things sent to me by my friends? " L. C. J. EUen-
hornugh: " I think a paper found under the lock and key of the party is prima facie read-
able against him. It^is subject to observations. If you do not go farther, the reading
this as found in his possession is doing little." ^
76 N. W. 393 (looking through an adversary's assented to the letter's statements) ; 1902, Peo-
book of aceonnts, and stating no objection, pie v. Smith, 172 N. Y. 210, 64 N. E. 814
makes the books receivable) ; 1896, Hiilett v. (defendant's statement that he had read a news-
Carey, 66 Minn. 327, 69 N. W. 31 (a letter read paper account, held not an admission of its
by the wnler's hnsband, put into an envelope, truth) ; 189.5, Hamilton v. Gray, 67 Vt. 233, 31
and taken away to post, held an admission by Atl. 315 (taxation of costs by a clerk of court in
him of the fact of marriage therein asserted) ; a suit in which the person was a party).
1875, Tilton v. Beecher, N. Y., Abbott's Rep. » Eng.: 1717, Francia's Trial, 15 How. St.
I, 367 ff. (here the particular situation was that Tr. 897, 990 (treasonable correspondence ; L.
of a peraon who assisted in framing an answer to C. B. Bury: "To receive so many letters,
a letter received by him ; and his failure to make and to keep them so long, is an evidence that
an oral denial of its assertions was held not alone he assented to the matter"); 1809, Doe o.
to admit the letter, and the written answer was Pembroke, 11 East 504 (plaintifTs predecessor
held to be necessary in order to. show how far he charged with recognition of relationship of his
1262
§§ 1048-1087] DOCUMENTS ASSENTED TO. § 1073
(3) The failure to reply to a written communication may sometimes suffice
to permit an inference of the party's assent to the correctness of the state-
ments made therein (upon the general principle of § 1071, ante). But the
inference is not ordinarily so strong ; and judges have always pointed out that
the failure to reply in writing to a written communication does not have the
same significance as a failure to reply orally to an oral communication :
1828, Fairlie v. Denton, 3 C. & P. 103 ; Mr. F. Pollock (arguing to admit a letter
demanding money) ; " I submit that it is evidence, exactly the same as what is said ver-
bally in the presence of a defendant is evidence against him, though he may make no
answer " ; L. C. J. Tenterden : " I am slov? to admit that. What is said to a man before
his face he is in some degree called on to contradict, if he does not acquiesce in it. But
the not answering a letter is quite different; and it is too much to say that a man, by
omitting to answer a letter, at all events admits the truth of the statements that letter
contains. . . . You may have that single line read, in which the plaintiff makes a de-
mand of a certain amount, but not any other part which states any supposed fact or facts."
1858, Aldis, J., in Fenno v. Weston, 31 Vt. 845, 352 -. " The omission of a party to reply
to statements in a letter about which he has knowledge, and which if not true he would
naturally deny, when he replies to other parts of the letter, is evidence tending to show
that the statements so made and not denied are true. So where there has been a corre-
spondence between parties in regard to some subject-matter, and one of the parties writes
a letter to the other making statements in regard to such subject-matter, of which the lat-
ter has knowledge, and which he would naturally deny if not true, and he wholly omits to
answer such letter, such silence is admissible as evidence tending to show the statements
to be true. Still all such evidence is of a lighter character than silence when the same
facts are directly stated to the party. Men use the tongue much more readily than the
pen. Almost all men will reply to and deny or correct a false statement verbally made to
them. It is done on the spot and from the first impulse. But when a letter is received
making the same statement, the feeling which readily prompts the verbal denial not un-
f requently cools before the time and opportunity arrive for writing a letter. Other matters
intervene. A want of facility in writing, or an aversion to correspondence, or habits of
dilatoriness may be the real causes of the silence. As the omission to reply to letters may
be explained by so many causes not applicable to silence when the parties are in personal
conversation, we do not think the same weight should be attached to it as evidence."
grandfather and the ancestor of defendant, on to he answered or acted on) ; 1848, Com. «. East-
the strength of a recital in a cancelled will of the man, 1 Gush. 189, 215 (conspiracy to defraud;
grandfather, found in drawer of plaintiffs prede- letters found in defendants' possession, held not
cesser the grandson); 1814, E. w. Plumer, K. & admissible "unless adopted or sanctioned by
K. 264 (larceny of money from a letter ; a letter the defendants by some reply or statement or
and a money-bill being found on the defendant, by some act done in pursuance of their sugges-
semble the contents of the letter could he used tions"); 1863, Com. ». Jeffries, 7 All. 548, 561
to connect it with the bill) ; 1817, R. ». Watson, (press copies in defendant's possession, received
2 Stark. 116, 140 (possession suffices); 1858, R. as "affecting him with an implied admission
V. Bernard, 8 St. Tr. N. S. 887, 938 (conspiracy of the statements contained in them ") ; 1837,
to murder Napoleon III ; paper in A.'s hand- Starkweather ». Converse, 17 Wend. 20, 24 (ap-
writing, found in defendant's room bearing his plication of payments ; defendant's retention of
handwriting, admitted to show knowledge of its a document held on the facts no evidence of
contents, but not assent to them); U.S.: 1895, acquiescence); 1845, People w. Green, 1 Park.
People V. Colburn, 105 Cal. 648, 649, 38 Pao. 11, 17 (letter from deceased, found in defendant's
1105 (letter found on defendant, not admitted); pocket, excluded on the facts) ; 1901, Packer v.
1899, Casey v. Leggett, 125 Cal. 664, 58 Pac. U. S., 46 C. C. A. 35, 106 Fed. 906 (un-
264 (letter by stranger advising one whose fraud- answered letter to the accused from a victim
ulent intent was in que.stion to make a deed ; of his fraud, found in the former's possession,
mere receipt and possession of letter no evidence excluded).
of ac(]uie8cence); 1894, Razor v. Razor, 149 111. Compare the cases cited ante, § 260 (pos.<!ession
621, 624, 36 N. E. 963 (letter by X found in a as evidence of knowledge) ; the judges do not
wife's trunk, appointing an assignation, not re- always distinguish the two principles in their
ceived as implying assent, because not shown application.
1263
§ 1073
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
So far as any definite rule is concerned, then, it seems impracticable ; and
the precedents indicate that each case must stand on its own facts.* In one
' Eng. . 1828, Fairlie o. Deuton, 3 C. &
P. 103 (money had and received; letter of de-
mand by plaintiff to defendant, but unanswered,
not read ; see quotation supra) ; 1846, Draper
V. Crofts, 15 M. & \V. 166 (unanswered demand
for rent of premises actually occupied by a co-
tenant ; Parke, B., after noting the difference of
opinion : ' ' My own opinion is that no attention
at all need be paid to a letter asking for money
which the party does not owe ; it is a different
case if he is bound by circumstances or by his
situation to return an answer. I think, there-
fore, not that such evidence is absolutely inad-
missible, but that it is worth vei-y little when
admitted") ; 1850, Gaskill ». Skene, 14 Q. B.
664, 669 (money had and received ; plaintifFa
unanswered lettei's to defendant, admitted, so
far as they were in general a demand of the
claim, even though certain details of the claim
are also mentioned ; " to make an intelligible
demand, some statement of the facts on which
the demand arises must be made ") ; 1858,
Keen s. Priest, 1 F. & F. 314 (distraint ; unan-
swered letter from plaintiffs attorney to defend-
ant, received on the facts ; Bramwell, B. :
"Silence may sometimes be conduct") ; 1872,
Richards v. Gellatly, L. R. 7 C. P. 127, 131
(false representations as to a ship's equipment ;
letters of complaint, unanswered, from the
plaintiff's fellow-passengers to the defendant,
excluded ; Willes, J. : " That notion has been
long exploded ; ... it may be otherwise where
the relation between the parties is such that a
reply might properly be expected ") ; 1891,
Wiedemann v. Walpole, 2 Q. B. 534 (failure to
answer a letter charging the defendant with
having promised to marry, held no admission by
the defendant of the promise ; distinguishing
the case as one of a charge of an offence which
is usually ignored) ; Can. .- 1870, Gilbert v.
Campbell, 1 Hanu. N. Br. 474, 491 (an unan-
swered itemized demand, excluded on the fact) ;
U. S. : Colo. : 1890, Patrick i,. Crowe, 15 Colo.
543, 555, 25 Pao. 985 (document submitted to
the opponent in the course of a compromise,
and not signed, but not specifically repudiated
by him, excluded) ; D. C. : 1877, Meguire i'.
Corwine, 10 D. C. 81, 89 (unanswered letters
demanding counsel fees, admitted ; but a charge
leaving to the jury to infer an admission of the
claim, held properly refused) ; Oa. : Code 1895,
§ 5155 ("In the ordinary course of business,
when good faith requires an answer, it is the
duty of the party receiving a letter from the
other to answer within a reasonable time.
Otherwise he is presumed to admit the acts
mentioned in the letter of his correspondent,
and to adopt them ") ; III. ; 1903, Chicago v.
McKeehney, 205 111. 372, 68 N. E. 954, 987
(letters and reports of the plaintiff and his
agents, sent to and read by the defendant's offi-
cers, but not by them answered or otherwise
noticed, held not admissible); Afd. : 1901,
Biggs I). Stueler, 93 Md. 100, 48 Atl. 727
(failure to answer a letter, not equivalent to
acquiescence) ; Mass. : 1852, Dutton v. Wood-
man, 9 Cush. 257, 262 (letter to defendant,
inquiring as to his liability as partner, admitted
on the facts) ; 1862, Fearing o. Kimball, 4 All.
125 (unanswered letter, not admitted on the
facts); 1865, Com. v. Edgerly, 10 id. 184, 187
(counterfeit utterance ; letter received by de-
fendant at a post-office, containing counterfeit
bills, but taken from him before he read or
opened it, held inadmissible) ; 1886, Sturtevant
V. Wallack, 141 Mass. 119, 122, 4 N. E. 615
(letter demanding payment, etc., received as
evidence of assent to the defendant's authority
to T. as agent to order) ; Nebr. : 1888, Kier-
stead V. Bros.-n, 23 Nebr. 595, 613, 37 N. W.
471 (silence, upon the receiving of a written
proposition for .settlement, held not an admis-
sion) ; N. J. : 1897, Hand v. Howell, 61 N.J. L.
142, 38 Atl. 748 (failure to answer a letter
making a claim, not an admission of the claim) ;
If. ¥.: 1837, Bronson, J., in Starkweathers.
Converse, 17 Wend. 20, 24 ("No man by doing
wrong can make it the duty of another to com-
plain of the injury at the risk of being con-
cluded by his silence ") ; 1872, Waring ». Tel.
Co., 44 How. Pr. 69, 75 (undenied letter of
claim to defendant, held not to amount to an
admission on the facts) ; 1883, Talcott v. Har-
ris, 93 N. Y. 567, 571 (failure of a party arrested
on ex parte affidavits to answer them by motion
to vacate the order, held not an admission) ;
1884, Learned v. Tillotson, 97 id. 1, 8 (account,
for partnership profits in stock proceeds ; letter
of plaintiff to defendant, making a demand, not
admitted because of defendant's failure to reply) ;
1891, Bank of British N. America v. Delatield,
126 id. 410, 418, 27 N. 'E. 797 (unanswered
letter relating to a loan, excluded on the facts) ;
1894, Thomas v. Gage, 141 id. 506, 509, 36
N. E. 385 (services in making a monument ;
unanswered letter to defendant, excluded on the
facts) ; 1900, Gray v. Kaufman D. & I. C. Co.,
162 id. 388, 397, 56 N. E. 903 (preceding cases
approved) ; U. S.: 1876, U. S. v. Babcock, 3
Dillon 571, 576 (unanswered telegrams to the
defendant, held admissible, if, semble, under
all the circumstances of the case the jury find
that they called for an answer) ; VI. : 1856,
Hill V. Pratt, 29 Vt. 119, 126 ("It would
seem that the rule has never been extended to
unanswered letters, particularly when the fact
stated has relation to past transactions and upon
which no future action of the party is contem-
plated " ; here, a letter to an attorney, report-
ing the service of a writ, was excluded) ; 1858,
Fenno v. Weston, 31 id. 345, 351 (failure to
contradict a particular assertion, in answering a
letter, and failure to reply to subsequent letters,
held admissible ; see quotation supra).
Distinguish the principle of Completeness,
under which the ijuestion arises whether the
reply to a letter must be offered in connection
with it {post, § 2104) or may be offered in
rebuttal {post, § 2120).
1264
§§ 1048-1087]
DOCUMENTS ASSENTED TO.
§1073
situation, however, there has been a uniform rule, namely, that the failure to
dispute an account rendered, after the lapse of a reasonable time, amounts to
an admission of its correctness.*
(4) The party's use of a document made by a third person will frequently
amount to an approval of its statements as correct, and thus it may be re-
ceived against him as an admission by adoption. A common instance of this
application of the principle is the insured's or heneficiarifs presentation of the
"proofs of loss" to the insurer.^
* 1741, Willis V. Jernegaii, 2 Atk. 251 (a
stated account need not be signed, to be set np
in bar ; it is " the person, to whom it is sent,
keeping it by him any length of time without
making any objection, which shall bind him ") ;
1750, Tickel v. Short, 2 Ves. Sr. 239 (L. C.
Hardwicke : " If one merchant sends an account
current to another in a different country, on
which a balance is made due to himself, the
other keeps it by about two years without ob-
jection, the rule of this Court and of merchants
is that it is considered as a stated account ") ;
1850, Gilbert v. Palmer, 1 All. N. Br. 667
(mere presentment of an account in person, the
opponent not conceding its correctness ; ex-
cluded) ; 1852, McCuUoch v. Judd, 20 Ala.
703, 705 ; 1882, Burns v. Campbell, 71 id. 271,
286 (objection to one item only is "an implied
admission of the correctness of the rest ") ;
1895, Peck v. Ryan, 110 id. 336, 17 So. 733 ;
1859, Terry v. Sickles, 13 Cal. 427, 429 (failure
to object in a reasonable time amounts to an
admission) ; Cal. C. C. P. 1872, § 1963, subdiv.
40, as amended by Commission in 1901 (account
rendered and not objected to within 30 days,
presumed correct ; for the validity of this
amendment, see ante, § 488) ; 1895, Pabst
Brewing Co. v. Lueders, 107 Mich. 41, 64
N. W. 872 ; 1898, Raub v. Nisbett, 118 Mich.
248, 76 Hr. W. 393 (failure to object in 30
days, not an admission as matter of law) ; 1818,
Murray v. Toland, 3 John. Ch. 569, 575 ; 1821,
McBvide v. Watts, 1 McCord 384 ; 1809, Corps
V. Robinson, 2 Wash. C. C. 388, 390 (account
rendered to defendant by B. and A., and "re-
tained by them without objection," held admis-
sible to prove B. and A.'s partnership) ; 1812,
Freeland v. Heron, 7 Cr. 147, 151 (the facts
were held to afford " room for the application
of a rule of the Chancery Court and of mer-
chants to decide the controversy ; it is this :
When one merchant sends an account current
to another residing in another country, between
whom there are mutual dealings, and he keeps
it two years without making any objections,
it shall be deemed a stated account, and his
silence and acquiescence shall bind him, at least
so far as to cast the onvs prohandi on him ").
The above evidential use seems never to have
been questioned ; distinguish, however, (1) the
question of substantive law what constitutes
irrevocably an account stated, so as to create a
new cause of action thereon : 1844, Langdon v.
Roane, 6 Ala. 518, 527 ; 1901, Louisville Bank-
ing Co. b. Asher, — Ky. — , 65 S. W. 133 ;
(2) the question when an axcount stated may be
set aside by a bill in equity with leave to sur-
charge and falsify : Langdon v. Roane, supra.
In an action on an account stated, i. e. a
specific document of contract, the opponent's
account-books are not receivable, because the
only issue is fhe agreement as to the account :
1894, Sterling L. Co. v. Stinson, 41 Nebr. 368,
369, 59 N. W. 888 ; though otherwise, in
ordinary actions for the pjice of goods or ser-
vices, the opponent's account-book entries are of
course receivable as admissions, against himself:
1894, German N. Bank v. Leonard, 40 Nebr.'
676, 683, 59 N. W. 107. The use of account-
books of parties and of third persons under
exceptions to the hearsay rule is dealt with
;70s<, §§1517-1561.
" This much is generally assumed as unques-
tioned ; the only matter of argument being the
conclusiveness of such proofs by way of es.'
toppel ; in the following cases the "proofs"
were received, except as otherwise noted : 1884,
Walther v. Ins. Co., 65 Cal. 417, 4 Pac. 413
(coroner's verdict) ; 1887, U. S. Life Ins. Co. v.
Kielgast, 26 111. App. 567, 572 (coroner's ver-
dict ; "the delivery of the paper imported no
admission that the verdict was true ") ; 1889,
U. S. Life Ins. Co. v. Vocke, 129 111. 557, 562,
22 N. E. 467 (point reserved) ; 1903, Supreme
Tent V. Stensland, — id. — , 68 N. E. 1098 ;
1871, New York Central Ins. Co. v. Watson, 23
Mich. 486 (admission that other insurance ex-
isted); 1898, John Hancock M. L. Ins. Co. o.
Dick, 117 id. 518, 76 N. W. 9 (physician's cer-
tificate); 1901, Waseyw. Ins. Co., 126 id. 119, 85
N. W. 459 (physician's afiidavit ; ■ but a majority
of the Court excluded such portions as were
based on mere hearsay); 1901, Modern Wood-
men V. Kozak, 63 Nebr. 146, 88 N. W. 248 ;
1903, Cox y. Royal Tribe, 42 Or. 365, 71 Pac. 73
(held receivable as admissions ; but here re-
jected because furnished by the insurer's agent) ;
1874, Insurance Co. v. Newton, 22 Wall. 32,
36 (coroner's verdict, admitted) ; 1877, Insur-
ance Co. V. Higginbotham, 95 U. S. 380, 390
(foregoing case approved) ; 1889, Richelieu &0.
N. Co. V. Boston M. Ins. Co., 136 id. 408, 435,
10 Sup. 934 ; 1900, Sharland v. Ins. Co., 41 C. C.
A. 307, 101 Fed. 206 (coroner's verdict) ; 1903,
Voelkels. Supreme Tent, 116 Wis. 202, 92N.W.
1104 (coroner's certificate). The qnestion ought
to be, in each case, whether the beneficiary has
in fact adopted the statements as his own ; there
can be no general rule for all cases.
Distinguish the question whether the admis-
sions of the deceased insured may be used against
the beneficiary (post, § 1081) ; and whether th&
1265
§ 1074 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
§ 1074. Same : Books of a Corporation or Partnership. Respecting the use
of corporation-book entries as evidence of the facts recorded, an unnecessary
doubt and confusion has arisen, chiefly through a failure to keep in mind the
history of the rule for parties' account-books. This aspect of the subject may
best be disposed of at the outset.
(1) By a peculiar course of development (examined post, § 1518) a party's
account-book, once receivable by custom, became inadmissible on his own
behalf in England as early as the 1700s, through a combination of statute
and judicial legislation. In the Colonies, this absolute prohibition never
came to prevail ; but the surviving use was limited in various ways ; in par-
ticular, the transactions recorded must be of goods or services, and not of cash
payments nor of special contracts, and the entrant must be the party himself.
These limitations were later removed by statute in many jurisdictions ; but
in England, substantially till the end of the 1800s, the prohibition remained.
The account-books of a corporation, then, were in England not admissible, any
more than the account-books of a natural person.^ In the United States,
they would have been admissible so far as any other party's account-books
w^ould have been; but obviously the above restrictions in fact excluded them,
even when they related to entries of goods or services, because they were kept
by a clerk. Nevertheless, they might have been and doubtless were used by
calling the clerk to use them as memoranda of recollection, precisely as could
be done by the clerk of any other party {ante, §§ 734 ff.). Moreover, after the
statutory removal of some of the above restrictions — ia particular, the restric-
tion as to the nature of the transaction recorded — there was no reason why
corporation account-books could not be used, on verification by the recorder,
like any other books. They were and are neither more nor less admissible than
any other party's books, either under the Parties'-Books branch of the Hearsay
exception for Eegular Entries {post, §§ 1537 ff.), or under the branch which
admits Eegular Entries by Deceased Persons {post, §§ 1521 fif.), or as verified
memoranda of recollection {ante, §§ 734 £f.). There is no mystery about
them, and no eccentricity. But doubt was introduced by 'gnoring this point
of view and fixing the attention on another principle, the test of which they
could not satisfy :
(2) This principle was that of Official Statements, or Public Becords, by
virtue of which, as an exception to the Hearsay rule, official registers, by per-
sons having a duty and authority, were receivable to evidence the facts stated.
This principle sufficed to admit certain public registers, including the books
of certain public corporations {post, § 1661); but it obviously could not cover
the records of a private corporation or of a public corporation doing private
acts.^ Conceding this, the English Court found of course no other title for
testimony before the cormier is admissible (posi, or may offiT the "proofs" as part of the res
§ 1374). Distinguish also the question whether gestce {post, § 1770).
tlie insured or beneficiary may, ore his own be- ^ 1819, Marriage v. Lawrence, quoted infra,
lialf, under the Hearaay rule offer affidavits * 1789, London v. Lynn, 1 H. Bl. 203, 215
contained in these " proofs " {post, § 1384), or (corporate tolls ; same ruling as in the next
whether the coroner's verdict may be offered by case) ; 1819, Marriage v. Lawrence, 3 B. & Aid,
either party as an oificial report {post, § 1671), 142 (right of a borough corporation to tolls ; to
1266
§§ 1048-1087] CORPOEATE BOOKS. § 1074
admitting corporate books as parties' entries, for the reason above explained.
But, for the same reason, our own Courts, if they had kept in mind our pecu-
liar tradition and statutes as to parties' books, might have correctly estimated
the negative conclusion of the English Court, and might have laid hold of such
other principle as plainly would have sufficed for the purpose in hand. This
they did not do ; they seem constantly to have ignored the likeness between
the account-books of natural parties and of corporate parties.^ The conse-
quence is that (apart from unrecorded practice) they seem seldom to have sup-
posed that there was any way of using corporate books otherwise than on the
further principles now to be noticed ; and the few Courts that have permitted
their use have not done so with any firm and clear recognition of the sound
reason for that result.
(3) No one doubted that the records of a meeting were receivable in
proving the doings of the meeting. On the theory of the Parol Evidence
rule {post, § 2451) those records were the doings; i.e. as with judicial and
legislative records, the votes of the meeting are supposed not to be in pais, or
oral, but in writing ; hence, in proving the acts of the meeting, as such, the
acts are to be sought in the written records. Thus, the record is not some-
body's hearsay testimony to the act; it is the act itself.* This rule, how-
ever, though not disputed, sufficed only to admit what was actually done
as a part of the corporate meeting ; it still did not serve any purpose of prov-
ing matters that occurred apart from the meeting, such as the sale of goods,
the erection of a fence, the receipt of money, the subscription to shares, and
the like. Was there any other principle upon which the books could be used
as evidence for these purposes ? It is just here that the present principle of
Admissions comes to be invoked :
(4) May not the account-books be used against a member of the corpora-
tion as statements assented to by him, by virtue of his presumed access to
them ? The books of a partnership are receivable against a partner, either
on this principle or on the principle of agency ; ^ may not corporation ac-
count-books be receivable in the same way, assuming that the opponent is
shown to be a member, and that the object is to charge him with an admis-
show acts of prescriptive claim, the ancient cor- were recorded, was admitted, because, per Mar-
porate records of fines imposed and paid were shall, C. J., " the books of such a body are the
not admitted ; because though the books were best eridence of their acts, and ought to be
public records, still "if the entry apply to admitted whenever those acts are to be proved ") ;
private transactions alone, it will still fall 1902, Signa Iron Co. v. Brown, 171 N. Y. 488,
within the rale applicable to private books," as 64 N. E. 194. Compare §§ 1661, 2451, j90Si.
a mere " minute made by a party in his own " 1903, Safe Deposit & T. Co. v. Turner,
memorandum-book "). Md. — , 55 Atl. 1023 ; 1844, Allen v. Coit, 6
^ -S. g., in Chase v. E. Co., 38 111. 215 Hill N. Y. 318 (entries in the firm's books ;
(1865). Cbjiira, in a good opinion ; 1891, Terry "the knowledge of their agent was in this
V. Birmingham N. Bank, 93 Ala. 608, 9 So. respect their own knowledge " ) ; 1892, Kohler
299 (stock-exchange corporation books). There v. Lindenmeyr, 129 N. Y. 498, 501, 29 N. E.
is a plain recognition of the sound view in 957 (here excluding books of a prior partner-
Tiainor v. Ass'n, 111., and Ganther v. Jenks, ship) ; 1824, Thommou v. Kalbach, 12 S. & R.
Mich., cited infra. 238 ; 1899, Chick v. Robinson, 37 C. C. A. 205,
* 1820, Owings v. Speed, 5 Wheat. 420, 422 95 Fed. 619 (special partner legally entitled to
(land vested in trustees; the "book of the access to books ; entries admitted),
board of trustees," in which their proceedings
1267
§ 1074 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
sion of the correctness of the account ? This question has generally been
answered in the negative:
1833, HUl V. Manchester S,- S. W. Co., 2 Nev. & M. 573, 579, 580, 582; Parke, J.:
" In the case put of a partnership, the books are evidence against the individual partner
dealing with the partnership, because he has access to the books and may alter them, and
his not doing so is evidence of acquiescence"; Campbell, Solicitor-General : " In the case
of a partnership, the books are evidence against a partner, not on the ground of access, but
because they are kept by a clerk, who is his agent, or by a partner, who is also his agent " ;
Parke, J. . " That is the true ground upon which they are evidence"; Denman, L. C. J.:
"... We are, however, of opinion that the principle on which partnership books are evi-
dence against the partners is that they are the acts and declarations of such partners,
being kept by themselves or, by their authority, by their servants and under their direc-
tion and superintendence. But the clerk of the company, once appointed, is subject to
the control of no individual member ; and the free access provided for [by the charter] is
only for the purpose of inspection."
1891, Earl, J., in Rudd v. Robinson, 126 N. T. 113, 117, 26 N. E. 1046: "There was
no proof that the defendant had actual knowledge of the entries contained in the books
which were used as evidence against him, or that he authorized such entries or caused
them to be made. There was no proof from which the law would raise a legal presump-
tion that he had knowledge of the entries, unless he is chargeable with such knowledge
from the mere fact that he was a stockholder and trustee of the corporation. . . . The
books of corporations for many purposes are evidence, not only as between the corporation
and its members, and between members, but also as between the corporation or its mem-
bers and strangers. They are received in evidence generally to prove corporate acts of a
corporation such as its incorporation, its list of stockholders, its by-laws, the formal pro-
ceedings of its board of directors and its financial condition when its solvency comes in
question. But ... we can perceive no principle upon which the account-books of a
corporation can be evidence, against a member of the corporation, of the accounts and
entries therein made in a suit brought by the corporation or its representatives against him
to enforce his liability upon such account. The officers and book-keepers of a corporation
are in no sense his agents. Individually he has no control over their acts, and has no
responsibility therefor ; and in making the entries they do not, in any legal sense, repre-
sent or bind him. As to the competency of such books, directors and stockholders of a
corporation stand upon the same footing. It is quite true that a director stands in a more
favorable position to know what is going on vrithin the corporation and to be more familiar
with its books in some cases than a stockholder. He has the right to inspect the books of
the corporation, and so has a stockholder. A stockholder having the ability is just as able
to become familiar with the contents of the books of a corporation to which he belongs as
a director ; and there is no principle of law by which a director can be charged with knowl-
edge of the entries in the books of a corporation which is not equally applicable to its
stockholders. ... It would be quite a dangerous and, we think, startling proposition
to hold that a clerk or other officer in a business corporation could enter charges in its
books of account against a director or stockholder which could be proved in favor of the
corporation by the mere production of the books, thus throwing upon hira, or his personal
representatives after his death, the burden of explaining the entries or showing them to
be untrue, and we believe the doctrine has no support in principle or authority. A cor-
poration seeking to enforce a claim against one of its directors or stockholders must
establish it by the application of the same rules of evidence which are applied in an action
brought by an individual to enforce a claim against any defendant."
Hence, the account-books have generally been excluded, in actions against
stockholders, unless actual access to the books was shown, or unless the in-
1268
§§ 1048-1087]
COEPORATE BOOKS.
§ 1074
debtedness in issue was that of the corporation to the plaintiff (in which case
the corporate entries, as its admissions, evidenced the debt, and would not
be offered as the stockholder's own admissions).^ Yet it would seem, upon the
principle already examined (ia par. (1) supra), that the account-books should
be received against any person and without any other restrictions than or-
dinarily are applied in the use of such books of natural persons. The in-
adequacy of the result reached by the Courts is indicated by the statutory
enactments which in many jurisdictions have expressly declared corporate
account-books admissible on certain conditions.^
(5) A similar question, lacking one circumstance, is presented when, in
an action charging the defendant as stockholder, it is desired to use the
corporate stock-hook to prove him to be a stockholder. Here there is no room
for arguing upon the principle of admissions, because the assent to be pre-
sumed from the right of access presupposes the party to have that right as
a stockholder, which is here the very fact in issue. Much more, then, should
this use of the books be denied by the Courts which see no other point of
view than the principle of Admissions. On the other hand, a Court which
permits this use must implicitly assume that the principles of Eegular En-
tries (noted above) apply to corporate-books, for there is no other available
being stockholder ; but not of other matters of
fact, including the state of accounts between a
stockholder and the corporation ; following Hill
V. Manchester & S. W. Co.) ; 1891, Kudd ».
Robinson, 126 N. Y. 113, 26 N. E. 1046 (action
by a receiver to charge a director with unlawful
appropi'iation of corporate funds ; corporate
account-books held not admissible to charge a
dii'eetor or stockholder ; see quotation supra) ;
1902, Continental Bank v. First Nat'l IJank,
108 Tenn. 374, 68 S. W. 497 (corporate account-
books held admissible, like other account-books,
" either for or against a corporation, and against
a stranger or as between two strangers ") ; 1899,
Hayden v. Williams, 37 C. C. A. 479, 96 Fed.
279 (usable only as admissions by the corpora-
tion against i member or between members ;
but, even here, not "as to his own dealings"
with a corporation).
' The ibllowing list is partial only : Ont.
St. 1900, c. 27, § 14 (books of a loan corpora-
tion, admissible "as against the corporation or
as between shareholders or alleged shareholders
thereof") ; Colo. St. 1893, p. 90, § 1 (stock-
book to be evidence of facts stated in ac-
tion against stockholder) ; Fla. Rev. St. 1892,
§ 2470 (in prosecution for false entry of transfer,
fraudulent issue, etc., of corporate stock, books
of "any corporation to which such person has
access or the right of access " are admissible) ;
Ind. Rev. St. 1897, § 3500 (corporate proceed-
ings, to he admissible against a stockholder) ;
Mass. Pub. St. 1882, c. 203, § 57 (corporation-
books to be evidence in certain charges against
one having access or the right of access to them) ;
Vt. St. 1894, § 4084 (savings-bank regulations
printed and posted, to be evidence between cor-
poration and depositors).
' The cases on both sides are as follows ;
1816, Alderson v. Clay, 1 Stark. 405 (a member
of a company who had attended three meetings^
held to be affected by all the recorded doings of
the company kept in a book open to all mem-
bers) ; 1833, Hill v. Manchester & S. W. Co., 2
Nev. & M. 573 (see quotation supra) ; 1898,
Booth V. Fire-Engine Co., 118 Ala. 369, 24 So.
405 (books admitted, the member being present
at the meeting) ; 1877, Neilsou v. Crawford, 52
Cal. 248 (not received against a stockholder to
show the company's indebtedness to the plaintiff ;
Hill 0. Manchester & S. W. Co. followed) ;
1896, McGowan v. McDonald, 111 id. 57, 69,
43 Pac. 418 (received in a case like the preced-
ing ; " the first fact to be established is the in-
debtedness of the corporation, and when that
is established, the liability of the stockholder
results as a necessary sequence " ; attempting
to distinguish ISTeilson v. Crawford) ; 1898, San
Pedro L. Co. v. Reynolds, 121 id. 74, 53 Pac.
410 (admitted as against an agent having cliarge
of the books) ; 1897, Anderson v. Life Ass'n,
171 111. 40, 49 N. E. 205 (directors' resolution
of assessment, held prima fade evidence against
members) ; 1903, Trainor v. German A. S. L. &
B. Ass'n, — id. — , 68 N. E. 650 (books of
account not admissible per se against a stock-
holder ; but admissible if fulfilling the requi-
sites of books of account in general) ; 1889,
Ganther v. Jenks, 76 Mich. 510, 514 (entries of
payment in the defendant company's books, ad-
mitted ; "such books, when properly kept by
the proper officers or agents of the company, are
competent testimony " as regular entries) ; 1858,
Haynes v. Brown, 36 N. H. 545, 563, 666 (the
corporation-books are evidence, " in the nature of
public records, as to everybody, of the corporate
proceedings," including the fact of a defendant
1269
§1074
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
principle. In other words, the entry is, in effect, that A. B. by himself or
his agent orally agreed to take shares of stock, or (where the subscription is
in writing) that the purporting signature of A. B. is genuine. The judicial
rulings are at variance ; * but it is a little singular that there should appear
more inclination to sanction the use of corporate-books to prove a defendant
a stockholder than to sanction their use in an accounting against one who is
otherwise proved a stockholder.
§ 1075. Same : Depositions in another Trial, Used or Referred to. If a
8 Eng. ; 1850, Bain v. E. Co., 3 H. L. C.
1, 21 (Lord Brougham said that at common law
a corporation's share-book was not admissible to
prove A. B. a shareholder ; here applying a stat-
iite expressly making such books admissible);
Can. : 1881, Stadacona Ins. Co. v. Rainsford,
21 N. Br. 309 (a charter made a certifi-
cate of the corporation evidence of a sharehold-
er's indebtedness ; held, that other evidence of
the defendant being a shareholder mast be
given) ; Cal. : 1867, Mudgett ii. Horrell, 33
Cal. 25 (creditor's suit to charge a stockholder ;
stock-books held not admissible to prove defend-
ant a stockholder ; per Currey, C. J., and Shaf-
ter, J.) ; Conn. : 1900, Fish r. Smith, 73 Conn.
377, 47 Atl. 711 (excluded; yet admissible to
prove time of membership commencing, if mem-
bership is otherwise evidenced) ; D. 0. : 1899,
National Expr. & T. Co. v. Morris, 15 D. C.
App. 262, 274 (stock-book " entries are not per
se evidence sufficient to establish the fact of
membership " ; there must be some conduct of
asseat by the person charged); Me..- 1840,
Coffin V. Collins, 17 Me. 440 (execution against
a stockholder for the company's debts ; semble,
the corporate records were admissible) ; Md. :
1872, Hager v. Cleveland, 36 Md. 476, 494
(corporation-books not admissible, ' ' except per-
haps in actions between the members ") ; N. H. :
1858, Haynes v. Brown, 36 N. H. 545, 563
(admissible ; see citation supra ) ; N. Y. :
1813, Highland Turnpike Co. v. McKean, 10
John. 154 (books held admissible to show de-
fendant a stockholder, if duly authenticated) ;
U. S. : 1824, Rockville & W. Turnpike Co. v.
Van Ness, 2 Cr. C. C. 449 (action by the cor-
poration for a balance due on a subscrip-
tion ; the original subscription-book being
offered, without evidence of the signature's
genuineness, the Court, "nem. con., was of
opinion that the commissioners' book of sub-
scriptions is prima fade evidence that the sub-
scriptions were genuine or made by persons duly
authorized ") ; 1877, TurnbuU v. Payson, 95
XJ. S. 418 (assignee's action for stockholder's
assessed liability to the company ; stock-book
held admissible to show "that he is the owner
of the stock ") ; 1892, Liggett t>. Glenn, 2 C. G.
A. 286, 51 Fed. 381 (trustee's suit to recover
unpaid assessment of stockholder ; stock-ledger
and transfer-book held admissible to prove the
defendant a stockholder, and sufficient therefor
with evidence of identity ; following Turnbull
V. Payson) ; 1892, Taussig v. Glenn, 2 C. C. A.
314, 51 Fed. 409 (same principle applied) ; 1897,
1270
Carey v. "Williams, 25 C. C. A. 227, 79 Fed.
906, 909 (action for an unpaid assessment ; en-
tries in the stock-books held inadmissible to
prove the defendant a stockholder ; the contract
of membership must be shown by some act of
assent ; Turnbull v. Payson and Liggett v. Glenn
treated as containing obiter statements only) ;
1898, Signa Iron Co. o. Greene, 31 C. C. A.
477, 88 Fed. 207 (like the preceding case);
Va.: 1826, Grays v. Turnpike Co., 4 Band.
578, 580, 582 (corporation-books used to prove
its organization ; defendant's subscription proved
by his signature to the subscription-book) ; 1879,
Stewart v. Valley K. Co., 32 Gratt. 146, 156
(stock-ledger and shareholders' list, admitted in
au action by the company for the amount due
from shareholders, to show the company's re-
liance on a subscription-paper signed by the de-
fendant) ; 1888, Lewis v. Glenn, 84 Va. 947,
984, 6 S. E. 866 (preceding case approved) ;
1888, Vanderwerken v. Glenn, 85 id. 9, 14, 6
S. E. 806 (action by a trustee of the company
for the amount due from a shareholder ; ' ' that
the stock-books of such a. company are prima
fa/yie evidence of who are its stockholders is
well settled ") ; W. Va. .- 1882, Pittsburgh W.
& K. R. Co. V. Applegate, 21 W. Va. 172, 180
(action for residue of shareholder's subscription ;
ledger and stockholders' list admitted to prove
the defendant a stockholder, under express stat-
ute, Code 1860, c. 57, § 25) ; 1897, South B. R.
Co. V. Long, 43 id. 131, 27 S. E. 297 (similar).
By statute, corporation stock-books are
sometimes made receivable as evidence of the
facts recorded ; for example : Eng. Companies
Clauses Consolidation Act, 1845, § 28 ; Com-
panies Act. 1862, §§ 25, 27 ; Can. Rev. St.
1886, c. li8, § 27, c. 119, § 47 (stock-books
admissible in actions against the company or
a shareholder) ; N. Sc. Rev. St. 1900, c. 128,
§ 47 (certificate under corporate seal shall be
evidence of shareholder's title) ; Ont. Rev. St.
1897, c. 191, § 76 (corporation stock-books to
be evidence, in actions against the company or
a shareholder) ; Mass. St. 1903, c. 437, § 30
(stock and transfer books shall be " competent
evidence ") ; Mich. Comp. L. 1897, § 6134
(banking) ; § 6178 (trust, security, and de-
posit) ; Mo. Rev. St. 1899, § 1000 (records of
private domestic incorporation, admissible in
any suit to which the corporation is a party) ;
Cook, Corporations, 4th ed. (1898), § 714.
For the authentication of corporate books, see
post, §§ 2159, 2169 ; for proof of their contents
by certified copies, see post, §§ 1223, 1683.
§§ 1048-1087] DEPOSITIONS ADOPTED. § 1075
party expressly states th.at a certain piece of testimony by another person is
correct, there can be no question that it becomes his statement by adoption,
and is receivable as his admission.^
But does he by implication approve and adopt as his all the depositions,
testimonies, and affidavits that are offered on his hehalf in a litigation, so
that in a subsequent litigation these may be used against him as his admis-
sions ? It is true that the rule against impeaching one's own vritness was
once explained upon the theory that a party guarantees the credibility of his
witness, and (by inference) the correctness of the witness' statements {ante,
§ 898). But that impossible theory has long been exploded (ante, § 899),
and cannot serve here. The question is purely one of implication from the
facts. In the endeavor to define that implication, a distinction was at one
time advanced that the use of an affidavit implied an admission of the cor-
rectness of its specific contents, while the use of a witness' deposition or oral
testimony did not :
1837, Denman, L. C. J., in Brickell v. Hulse, 7 A. & E. 454, 456 : "There can, I
think, be no question but that a statement which a party produces on his own behalf,
whether on oath or not, becomes evidence against him. There is nothing to distinguish
it from a statement made by the party himself. . . . [In equity proceedings a different
rule may obtain] ; a party who uses such depositions does not know beforehand what they
are; if he did, such cases would stand on the same footing as the present; he can only
refer to what he expects will be produced ; it is like the case of a witness called at Nisi
Pjius, whose evidence does not bind the party calling him. It is quite different from a
case where a party produces, as part of his own statement, an affidavit of which he knows
the contents."
But this view was in England afterwards repudiated for the more accurate
view that some depositions or testimonies may be so used as to become admis-
sions, while some affidavits may not be ; the result depending upon whether
in the case in hand the particular statement was offered knowingly for a
specific purpose :
1864, Cockburn, L. C. J., in Richards v. Morgan, 10 Jur. n. s. 559, 564 : "In principle,
there can be no difference whether the assertion or admission be made by the party sought
to be affected against himself, or by some one employed, directed, or invited by him to
make the particular statement on his behalf. In like manner, a man who brings for-
ward another, for the purpose of asserting or proving some fact on his behalf, whether in a
court of justice or otherwise, must be taken himself to assert the fact which he thus seeks
to establish. . . . Where a witness is called for the purpose of proving a particular fact,
this amounts to an assertion of that fact by the party who so uses his testimony. And
in this respect I must observe, that I can see no difference between written and oral tes-
timony. For while I concur in the position, that the evidence of a witness, called on a
trial, is not necessarily, nor, to the full extent to which it may go, admissible against the
party calling him in a future proceeding, yet if it can be shown that the witness was
called to prove a specific fact, it appears to me that this would be admissible as an asser-
tion of such fact by the party calling the witness. ... On the other hand, as I have
1 1835, R. V. John, 7 C. & P. 324 (deposition mission that the testimony of a witness on a
of T., which had been admitted to be correct by former occasion was true makes the testimony
the defendant in his examination, received) ; receivable).
1863, State v. Gilbert, 36 Vt. 145, 147 (an ad-
1271
§ 1075 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
already said, I entirely concur in the position, that it is not because a ■witness is called
for the purpose of proving a particular fact or facts, that all that he may say becomes
admissible in any future proceeding against the party calling him. And here, again, I
see no valid distinction between viva voce and written testimony. It has, indeed, been
said, that a party, calling a witness to be examined in court, may, in many instances, be
ignorant how far the witness may make statements unfavourable to the party calling him,
■while a party using a written deposition does so with a full knowledge of what it con-
tains, and after full opportunity of balancing the advantages and disadvantages of using
it. But it must be borne in mind that the party in the one case calling the witness, in
the other using the deposition, may do so, not only without the intention of abiding by
all the witness may say, but with the deliberate intention of calling on the Court or jury
to disbelieve so much of the evidence as makes against him. Just as at Xisi Prius, a party
is sometimes under the necessity of calling a doubtful or even hostile witness, in order to
prove some part of his case which cannot otherwise be maie out ; and, in the event of
adverse statements being made by the witness, seeks to induce the jury to reject them,
as unworthy of belief, or as contradicted by the rest of the evidence ; so, in the case of
written evidence, a deposition or affidavit may, under similar circumstances, be used
with a view to the adoption of a part and the rejection of the rest. It would be in the
highest degree unreasonable to suffer the party using the evidence to be affected by that
portion which he may have repudiated or disregarded, on the ground, that the statements
of the witness must be taken to be his. Bearing in mind, that the true ground on which
such evidence is admissible, is, that a party seeking to establish a fact by evidence in a
court of justice, must be taken [in that litigation] to assert the fact he so seeks to prove,
it seems to me to follow, on the one hand, that oral evidence, so far as it shall appear to
have been used to establish a specific fact, will [in subsequent litigation] be evidence
against the party using it, as an assertion of that fact ; and on the other, that written
evidence will be admissible against the party using it, in a subsequent proceeding with a
different party, not for the purpose of proving all the statements it may contain, but only
so far as it shall appear to have been used to establish a given fact or facts. It is not
because a witness may have been called, or a deposition may have been used, that all the
statements made are to be considered as having been adopted by the party using the eri-
dence. In order to render this species of evidence admissible, a? the assertion of a par-
ticular fact by the party using it, it must appear, either from the e\'idence itself, or from
extrinsic circumstances, that it was used for the purpose of proving such fact. ... I am
not insensible to the inconvenience that may result from the admission of evidence of
this sort. The evidence may have utterly failed in its effect in the original suit ; the
fact which was sought to be established may have been disproved by other evidence; the
decision of the Court or jury may have been adverse ; the party may long since have
abandoned the ground which he formerly took; the production of such evidence in a
subsequent suit may lead to collateral issues in the shape of inquiry into all the circum-
stances and bearings of the first. Counsel, too, may possibly be embarrassed in the con-
duct of a cause, as regards the production of evidence, by having to consider what may be
its effects on the interests of their client beyond the present proceeding. But many of
these difficulties would obviously apply in the case of statements made by the party irre-
spective of legal proceedings, which, if relevant to the matter in dispute, no one can deny
to be admissible against him. All these difficulties exist equally in the case of affidavits
and depositions in bankruptcy, both of which have been held to be admissible. The dif-
ficulty in which it is suggested that counsel would be placed in the conduct of a cause
becomes reduced to a matter of small importance, when the admissibility of the deposition
is limited by the qualification to which, in ray view, it should be subject, namely, that it
can only be used against the party to the extent of the purpose for which it was used by
him in the former suit."
1840, Collier, C. J. , in Hallett v. Walker, 1 Ala. 585, 589 : " The mere filing of a dep-
osition does not license the party against whom it was taken to read it as an admission
J 272
§§ 1048-1087J
DEPOSITIONS ADOPTED.
1075
to the jury. . . . The party taking the deposition may have discovered that it was inad-
missible for him, or that the facts it proved were unfavorable to his interest, or were in
themselves false. Under such circumstances he could not in justice be charged with hav-
ing made an admission of its truth." ^
Certain other principles affecting the use of depositions must be discrim-
inated. (1) Even if the party taking the deposition has not used it, so that
^ The rulings are as follows : JEnyland :
1806, Johnson v. Ward, 6 Esp. 47 (to prove one
D. an agent of defendant, an affidavit of D. on a
motion to postpone trial v.as admitted, as used
by defendant and known and adopted by him) ;
1837, BrickelliJ. Hulse, 7 A. &E. 454 (trover for
goods seized on execution ; plaintiff allowed to
use affidavit of W., put in by defendant ou mo-
tion in chambers, to show seizure by W. on de-
fendant's behalf; see quotation supra) ; 1839,
Gardner v. Moult, 10 id. 464 (assumpsit by as-
signees in bankruptcy against a creditor ; plain-
tiff allowed, in proving act of bankruptcy, to use
a. deposition made by agent of defendant, ex-
pressly at defendant's instance, to open bank-
ruptcy proceedings ; the deposition being " a
particular statement which their agent was sent
to make"); 1834, Chambers v. Bernasooni, 1
C. M. & R. 341, 352, 360, 367 (action by al-
leged bankrupt against assignees ; depositions
used by petitioning creditors in the opening
proceedings, not admitted ; the assignees' en-
rolment of them pursuant to law not being an
adoption and affiimation of them) ; 1840, Cole
V. Hadley, 11 A. & E. 807 (trespass g. c. f. ;
issue whether plaintiff was tenant of the soil ;
at a fonner trial of a criminal proceeding against
defendant on the now plaintiffs information for
a trespass, plaintiff had alleged himself to be
tenant, and defendant had put in the deposition
of one D., the landlord, denying plaintiff's ten-
ancy ; deposition admitted) ; 1845, White v.
Dowling, 8 Ir. L. R. 128 (affidavit of plaintiff's
clerk, used by him on an interlocutory motion
in the same cause, not admitted for the defend-
ant, by a majority of the Court, chiefly because
it was used in his absence and without his
knowledge) ; 1848, Boileau v. Rutlin, 2 Exoh.
665, 680 (above cases referred to as sound, so
far as the deposition, etc., was offered " for the
purpose of proving a ceitain fact ") ; 1851,
Pritnhard v. Bagshawe, 11 C. B. 459, 462 (to
prove D. to be an agent of the defendant in an
act of conversion, an affidavit of D. on that
point, used by the defendant in an action
by him against one M., was admitted) ; 1863,
Paget V. Birkbeck, 3 F. & F. 683, 686 (trespass
q. c. f. ; deposition made by witness for defend-
ant in a Chancery suit in the same dispute, not
admitted for the plaintiff ; because not appear-
ing to be so "used or adopted by the defend-
ant to make it admissible against him in this
action as an admission made by him or with his
authority ") ; 1864, Richards v. Morgan, 10 Jur.
N. 8. 559, 4 B. & S. 641 (replevin for sheep ;
avowry, damage feasant ; to prove title to the
lotyus, the plaintiff offered depositions used by
the defendant in a Chancery suit by one E.
against the now defendant in which the same
title was in issue, there being " no privity
whatever" between E. and the now plaintiff';
held admissible, by two judges out of three, be-
cause the depositions were formerly used for the
specific fact as to which they were now offered) ;
1899, Evans v. Merthyr Tydfil, 1 Ch. 241, 250
(principle of Richards v. Morgan approved) ;
Canada: 1863, Thayer v. Street, 23 U. C. Q. B.
189, 192 (affidavit of M., filed and used by de-
fendants in another suit, admitted) ; 1900, Liv-
ingstone V. Colpitts, 4 N. W. Terr. 441, 442
(defendant's cross-examination on his affidavit
filed in the case, admitted ; Richards v. Morgan
followed ; on appeal, this point was not decided) ;
United States: 1840, Hallett v. Walker, 1 Ala.
585, 588 (deposition on affidavit filed in same or
prior cause, but not read, is not an admission) ;
1863, Wilkins v. Stidger, 22 Cal. 231, 236
(medical services ; defendant had called the
plaintiff as a witness, in an action before arbi-
trators against the person who had injured the
defendant ; plaintiff's testimony not received ;
" a party to a suit is not bound by or held to ad-
mit as true every statement made by his wit-
nesses during the trial of a cause, because he
does not deny or contradict them at the time " ;
this is a misapplication of the principle of
§ 1072, ante) ; 1842, Hovey v. Hovey, 9 Mass.
216 (taking and filing a deposition, without
using it, is not an admission of its truth) ; 1821,
Martin v. Root, 17 id. 222, 227 (former witness'
testimony not received ; " then, he used him as
a witness, and was obliged to content himself
with all he was willing to swear to") ; 1899,
Knight V. Rothschild, 172 id. 546, 52 N. E.
1062 (statements of one affidavit expressly
adopted in another, admitted) ; 1900, Bageard
i>. Consol. T. Co., 64 N". J. L. 316, 45 Atl. 620
(after showing plaintiff's inconsistent testimony
on former trial, defendant was. allowed to show
that plaintiff then also brought a witness to tes-
tify to same effect ; citing Richards v. Morgan) ;
1903, Connecticut M. L. Ins. Co. v. Hillmon,
188 U. S. 208, 23 Sup 294 (affidavit of a wit-
ness J. H. B., put in evidence by the plaintiff
on the cross-examination of W. J. B., held to be
usable against the plaintiff as a part of her evi-
dence, and not merelv as affecting the credit of
J. H. B.) ; 1826, M'Mahon v. Spangler, 4
Rand. 51, 56 (affidavit of B. read by plaintiff
below, allowed to be used by defendant).
In any case, however, the deposition may be
offered to show the party's knowledge of the facts
stated in it, if that is material ; 1836, Lorton v.
Kingston, 5 01. & F. 269, 344 ; and cases cited
ante, § 260.
1273
§ 1075 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
by no possibility could it be treated as an admission, nevertheless it may be
offered by the other party as a deposition, on showing the witness deceased or
otherwise unavailable, if it was taken in the same cause ; since the only ob-
jection to it arises from the Hearsay rule and that has been satisfied (post,
§ 1.389). Thus the particular advantage to be gained by succeeding in treat-
ing it as an admission is that these restrictions do not then obtain. (2) The
party's silence during the giving of opposing testinwny cannot be treated as an
admission of its correctness, for the reasons already examined (ante, § 1072,
par. (3)).
§ 1076. Admissions of Other Parties to the Litigation ; XTominal and Real
Parties ; Representative Parties (Executor, Gruardian, etc.) ; Stockholders ;
Joint Parties ; Confessions of a Co-defendant. A third mode (of those enu-
merated in § 1069) by which vicarious admissions may become receivable is
by privity of interest, i. e. a relation which permits one person's rights, obliga-
tions, or remedies to be affected by the acts of another person, and thus also
permits resort to such evidence as that other person may have furnished by
way of admissions. This privity may be of two sorts, namely, privity of
obligation and privity of title. But first it is necessary to distinguish those
instances in which merely the definition of a "party" is involved. By
hypothesis, an admission is a statement elsewhere made by the party and
now offered against him as inconsistent with and contradictory of his present
claim made in the pleadings or evidence (ante, § 1048). Who, tlien, is the
" party," i. e. the litigating person, whose admissions may thus be now turned
against himself ?
(1) In the first place, so long as fictions were copiously employed in the
formal conduct of litigation, the admissions of a nominal, or fictitious party,
were in strict logical consequence obliged to be received. For example — the
typical instance — so long as the suit of the assignee of a chose in action was
at common law required to be brought fictitiously in the name of the assignor,
the latter's admissions were receivable, as being those of the party himself ; ^
even though they would have been inadmissible, if made after assignment, as
those of an assignor, on the principle of privity of title (post, § 1085). But,
since the universal reforms in procedure, this problem is no longer presented ;
although even before those reforms the spirit of judicial progress had in some
jurisdictions refused to recognize this logical extension of the fiction.^ Where,
however, the relation is not a fiction, but represents a real relation of legal
iaterest — as where the administrative and beneficial interests are divided
between trustee and cestid qtie truit — it would seem that the admissions of
the trustee should be receivable. Conversely, so far as procedure still per-
mits any litigation to be conducted without joining the real and beneficial
1 1798, Baiierman o. Radenius, 7 T. R. 663, modern practice, at law even, the admissions of
668 ; 1833, Gibson v. Winter, 5 B. & Ad. 96, a party to the record who has no interest in the
102; 1819, Bulkley v. Landon, 3 Conn. 76, 82 ; matter will not be permitted to be given in evi-
1836, Johnson v. Blackman, 11 id. 342, 348. dence to the prejudice of the real party in inter-
2 1848, Dazey v. Mills, 10 111. 67; 1868, est"); 1846, Sargeant w. Sargeant, 18 Vt. 371,
Shailer v. Bumstead, 99 Mass. 112, 127 ("In 376.
1274
§§ 1048-1087] PAETIES TO THE SUIT. § 1076
party in interest, his admissions would nevertheless be received ; ^ perhaps
such a case is not likely to-day to arise. In a criminal prosecution, the per-
son to whose injury the crime was done is in no legal sense a party, and his
statements are not receivable,* except, of course, by way of self-contradiction
as a witness. So, too, the stockholder of a corporation is not the real party
in legal interest, and his statements cannot be received as admissious of the
corporation.^
(2) Where the party sues in a representative capacity — i. e. as trustee,
executor, administrator, or the like — , the representative is distinct from the
ordinary capacity, and only admissions made in the former quality are receiv-
able ; in particular, statements made before or after incumbency are inadmis-
sible.^ Conversely, his admissions as executor or the like would not be
receivable against him as a party in his personal capacity. A guardian, so
far as his powers place him in a representative capacity, is subject to the
same rules ; ^ but the function of a guardian ad litem begins and ends with
the litigation, and consequently his extrajudicial admissions are not receiv-
able at all.*
(3) It will thus be seen that in receiving the admissions of a party as such,
the only question can be, who the party is. The probative process consists
in contrasting the statements of the same person made now as litigant and
made formerly elsewhere, and it is in that view that it becomes necessary to
define the identity of the person. It follows that the statements of one who
3 1749, Hanson v. Parker, 1 Wils. 257 (ac- man) ; 1902, State v. Deal, 41 Or. 437, 70 Pac.
tion on a bond for the benefit of D. ; "D. is to 534 (owner of a stolen horse),
be considered as if she were really plaintiff" ) ; ' The contrary view was early taken in Eng-
1809, Bayley, J., in R. v. Hardwieke, 11 East land for parish-inhabitants : 1809, R. v. Hard-
578, 584 ("Banerman v. Radenius only decided wicke, 11 East578, 585; but it was repudiated by
that the declarations of the nominal party on the American Courts for town-proprietors; see Judge
record were evidence against him ; but not that Redtield's note to Greenleaf on Evidence, I, § 175,
the declarations of the real party would not also 15tli ed. But the status of the parish-inhabitant
have been evidence ") ; 1813, Smith v. Lyon, 3 and the town-proprietor was ditferent from that
Camp. 465 (action by a ship-master, for the ben- of the modern shareholder in a private corpora-
efit of the owner, on a charter contract ; L.C.J. tion; the admissions of a shareholder cannot
EUenborough: "Although this action is in the affect the corporation: 1839, Fairfield Co. Turn-
name of the master, it is brought for the benefit pike Co. v. Thorp, 13 Conn. 173, 180. This is
of the owner ; I am therefore of opinion that any- sometimes expressly provided by statute : Wis.
thing said by the latter is admissible evidence Stats. 1898, § 4079 (admissions of a member of a
for the defendant "). But this would not neces- corporation, not receivable unless he is a party or
sarily be the rule where the trustee as party an agent).
represented an entire estate and the cestui was • 1823, Plant v. McEwen, 4 Conn. 544, 548
interested in only a part of it, e. g. as life ten- (executor, before appointment) ; 1895, Freeman
ant : 1838, Doe v. Wainwright, 3 Nev. & P. v. Brewster, 93 Ga. 648, 21 S. E. 165 (guardian,
598,605. It would be apparently on the above after revocation); 1900, Horkan v. Benning,
principle that, to prove a plea in abatement for 111 id. 126,36 S. E. 432 (administrator) ; 1898,
non-joinder, the admission of liability by the Charlotte 0. & f . Co. v. Eippy, 123 N. C. 656,
person sought to be joined would be receivable : 31 S. E. 879 (executor ; excluded, unless con-
1827, Clay ii. Langslow, M. & M. 45. nected with the settlement of the estate ; this
* 1875, Williams ». State, 52 Ala. 411, 412 ; seems doubtful) ; 1901, Williams v. Culver, 39
1901, Green v. State, 112 Ga. 638, 37 S. E. 885 ; Or. 337, 64 Pac. 763 (administrator, before ap-
1884, Harper v. State, 101 Ind. 109, 111 (has- pointment). For the case of co-executors, co-
tardy) ; 1898, Shields v. State, 149 Ind. 395, 49 legatees, etc., see post, § 1081.
N. E. 351 (murdered person); 1860, Com. v. ^ Contra: 1846, CoUis v. Bowen, 8 Blackf.
Sanders, 14 Gray 394 (embezzlement); 1898, 262.
State V. Knock, 142 Mo. 515, 44 S. W. 235 » 1895, Chipman o. E. Co., 12 Utah 68, 41
(mother of a rape-prosecutrix) ; 1903, State v. Pac. 562.
Terry, 172 id. 213, 72 S. W. 513 (murdered
VOL. II. — 18 1275
§ 1076 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
is confessedly a distinct person B do not become receivable as admissions
against A merely because B is also a party. In other words, the admissions
of one co-plaintiff or co-defendant are not receivable against another, merely
by virtue of his position as a co-party in the litigation. This is necessarily
involved in the notion of an admission ; for it is impossible to discredit A's
claims as a party by contrasting them with what some other party B has
elsewhere claimed ; there is no discrediting in such a process of contrast,
because it is not the same person's statements that are contrasted. More-
over, ordinary fairness would forbid such a license ; for it would in practice
permit a litigant to discredit an opponent's claim merely by joining any per-
son as the opponent's co-party and then employing that person's statements
as admissions. It is plain, therefore, both on principle and in policy, that
the statements of a co-party (while usable of course against himself) are not
usable as admissions against a co-party. The situation has, to be sure, often
been obscured by the circumstance that the co-party's admissions are always
received against himself, and, furthermore, that they are sometimes received
also against the other co-party because of a privity of obligation or of title
(on the principle of §§ 1077 ff.). But it is not by virtue of the person's relation
to the litigation that this can be done ; it must be because of some privity
of title or of obligation, which would indeed have admitted the statements
even had the declarant not been made a co-party. This principle, long
recognized by the Courts, has not always been clearly appreciated by the
profession :
1806, L. C. Erskine, in Morse v. Royal, 12 Ves. Jr. 355, 361 : " So in trespass, where
the defendants may be found severally guilty or not guilty, a witness may say he heard
one acknowledge that he committed the act with the others; that is decisive against that
one, and as it is legitimate evidence against him, the Court must hear it ; though it is no
evidence against the others."
1809, L. C. J. EUenborough, in R. v. Harduiicke, 11 East 578, 585 : " Evidence of an
admission made by one of several defendants in trespass will not, it is true, establish the
others to be co-tvespassers. But if they be established to be co-trespassers by other com-
petent evidence, the declaration of the one, as to the motives and circumstances of the
trespass will be evidence " against all who are proved to have combined together for the
common object." i"
The principle is particularly illustrated by the rule in regard to the admis-
sions of a co-defendant in a criminal case ; here it has always been conceded
that the admission of one is receivable against himself only;!^ and thus,
9 /. e. on the principle of § 1079, post. 248, that when the co-respondent and the re-
i" Accord: 1825, Dan v. Brown, 4 Cow. 483, spondent, in divorce for adultery, take the stand,
492 (Woodworth, J. : " An admission by a party then the testimony of either "cannot he taken
to the record is evidence against him who makes against the other, if no right of cross-examination
it ; . . . hut not against others who happen to is permitted, is erroneous, being based on the
be joined as parties to the suit "). Otherwise, common-law rule forbidding such use of extra-
where the parties have a common interest inde- judicial admissions of co-defendants. Bnt testi-
pendently of being joined as parties : 1903, mony on the stand is entirely different from ad-
Fourth Nat'l Bank v. Albaugh, 188 U. S. 734, missions, and nothing can prevent a witness'
23 Sup. 450. _ testimony, when credible, from being used to
" 1664, Tong's Case, Kelyng 18. prove any relevant fact against any party. Com-
The ruling in Allen v. AUen, 1894, Prob. pare § 916, ante (impeaching a co-defendant).
1276
§§ 1048-1087] PARTIES; PRIVIES IN OBLIGATION. § 1077
where A's confession, for example, implicates also a co-defendant B, it is
allowed to be read against A, under express instructions to the jury not to
consider it as affecting B ; and some judges at one time favored the practice
of omitting the name of B, or any other co-defendant, in the proof of the
confession.12 As for answers in chancery, it has never been doubted that the
answer of one defendant is no evidence against another.^
§ 1077. Privies in Obligation ; Joint Promisor ; Principal and Surety, etc.
So far as one person is privy in obligation with another, i. e. is liable to be
affected in his obligation under the substantive law by the acts of the other,
there is equal reason for receiving against him such admissions of the other
as furnish evidence of the act which charges them equally. Not only as a
matter of principle does this seem to follow, since the greater may here be
said to include the less ; but also as a matter of fairness, since the person who
is chargeable in his obligations by the acts of another can hardly object to
the use of such evidence as the other may furnish. Moreover, as a matter of
probative value, the admissions of a person having precisely the same mter-
ests at stake will in general be likely to be equally worthy of consideration.
There being an identity of legal liability, the two persons are one so far as
affects the propriety of discrediting one by the statements of the other.
When does this privity of obligation exist ? This is plainly a matter for
definition by the substantive law, not the law of evidence. The rule of evi-
dence assumes whatever is otherwise established in the substantive 'law ; and
it would require a lengthy and inappropriate digression to examine here the
conclusions of that law upon the variety of situations in which the question
is presented. It is enough to note that the principle finds constant applica-
tion chiefly to the admissions of a co-promisor,^ of a principal (against his
surety),^ and of one or two other classes of liability which may now be ex-
^ The cases are collected post, § 2100, because is one of the substantive law ; this principle was
they are concerned primarily with the principle confirmed in 1824, in Perham v. Eaynal, 2 Bing.
of Completeness, there discussed. 306, 312, and in 1828, in Burleigh v. Stott, 8 B.
For the use of a am/ension of a deceased person, & C. 36, 41. There is an interesting note upon it
implicating himself and exonerating the defend- in Greenleaf on Evidence, 15th ed., I, § 112.
ant, under the Hearsay exception for statements * 1821, Goss v. Watlington, 3 B. & B. 132,
against interest, see post, § 1476. 137 ; 1828, Whituash v. George, 8 B. & G. 656,
For the use of admissions of co-eompiraiors, 561 ("The entries [of the principal] were evi-
see post, § 1079. dence against the surety because they were made
" 1806, Morse v. Royal, 12 Ves. Jr. 355, hj the collector [principal] in pursuance of the
361; 1817, Leeds v. Ins. Co., 2 "Wheat. 380, stipulation contained in the condition of the
383. But, of course, where the other party is a bond"). The Hearsay exceptions for Statements
nominal one only, and thus is competent as a against Interest (post, § 1455) and Regular En-
witness, his answer, if subjected to cross-exam- tries {post, § 1517) serve to confuse some of the
ination, could be received. Distinguish also the earlier cases on this topic,
admission of the other answer where one party It was on this principle that admissions of a
makes it his own by reference (ante, §§ 1070, debtor were held admissible against a sheriff
1075). charged vrifh his escape : 1798, Sloman v. Heme,
' One of the most troublesome problems in 2 Esp. 691 (" whatever evidence would be suffi-
this connection, namely, whether a promise or oient to charge the original defendants would
acknowledgment by one joint promisor sferves to do to charge a sheriff in such an action as the
remove the bar of the statute of limitations present ").
against another, goes back to a ruling of Lord By statute in most of the Codes there is a gen-
Mansfield, in Whitcomb v. Whiting, 2 Doug, eral definition of the various persons whose
652 (" an admission by one is an admission by admissions are receivable,
all"), and illustrates how the principle involved
1277
§ 1077 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
amined in order to distinguish the present question from certain genuine rules
of evidence.
§1078. Same: Agent; Partner; Attorney; Deputy-Sheriff; Interpreter;
Husband and "Wife. (1) He who sets another person to do an act in his
stead as agent is chargeable by such acts as are done under that authority,
and so too, properly enough, is affected by admissions made by the agent in
the course of exercising that authority. The question therefore turns upon
the scope of the authority. This question, frequently enough a difficult one,
depends upon the doctrine of agency applied to the circumstances of the case,
and not upon any rule of evidence.^ The common phrasing of the principle
is well represented in the following passage :
1839, Buchanan, C. J., in Franklin Bank v. Pennsylvania D. Sj- M. S. N. Co., 11 G. &
J. 28, 33: "The principle upon which the declarations or representations of an agent,
within the scope of his authority, are permitted to be proved, is, that such declarations, as
well as his acts, are considered and treated as the declarations of his pnncipal. What is
so done by an agent, is done by the principal through him, as his mere instrument. So
whatever is said by an agent, either in the making a contract for his principal, or at the
time, and accompanying the performance of any act, within the scope of his authority,
having relation to, and connected with, and in the course of the particular contract or
transaction in which he is then engaged, is, in legal effect, said by his principal, and ad-
missible in evidence ; not merely because it is the declaration or admission of an agent,
but on the ground, that being made at the time of and accompanying the contract or
transaction, it is treated as the declaration or admission of the principal, constituting a
part of the res gestce, a part of the contract or transaction, and as binding upon him as if
in fact made by himself. But declarations or admissions by an agent, of his own author-
ity, and not accompanying the making of a contract, or the doing of an act, in behalf of
his principal, nor made at the time he is engaged in the transaction to which they refer,
are not binding upon his principal, not being part of the res gestm, and are not admissible
in evidence, but come within the general rule of law, excluding hearsay evidence ; being
but an account or statement by an agent of what has passed or been done or omitted to be
done, — not a part of the transaction, but only statements or admissions respecting it."
The most difficult field in the application of this principle is that of tortious
liability/. For example, if A is an agent to drive a locomotive, and a collision
ensues, why may not his admissions, after the collision, acknowledging his
carelessness, be received against the employer? Because his statements
under such circumstances are not made in performance of any work he was
set to do. If he had before the collision been asked by a brakeman whether
the train would take a switch at a certain point, and had then mentioned
receiving certain instructions from the train-dispatcher, this statement might
be regarded as made in the course of performing his appointed work. Nev-
ertheless, such problems naturally admit of much speculative and barren
argument.
1 Thft best of the earlier expositions Is that of defined and accepted. For a collection of aii-
SirW. Grant, M. R., in 1803, in Fairlie v. Hast- thoilties applying the rule in Fairlie v. Hast-
ings, 10 Ves. Jr. 123. Lord Kenyon, who be- ings, see Wambaugh's Cases on Agency, 447 ff. ;
came Chief Justice in 1788, had set himself 1903, McEntire v. Levi C. M. Co., 132 N. C.
against receiving any admissions by agents ; and 598, 44 S. E. 109.
it was some time before the true principle was
1278
§§ 1048-1087] PEIVIES IN OBLIGATION. § 1078
In that class of cases, namely, cases involving tortious liability, and, in
particular, liability for injury in a railway accident, the question is usually
complicated by the applicability of the Hearsay exception for Spontaneous
Declarations (post, § 1745), which admits statements made under the influ-
ence of excitement, before the declarant had "time to contrive or invent."
This serves commonly to admit the immediate statements of the injured per-
sons and the bystanders ; and since the much-abused phrase " res gestce " has
been commonly employed to suggest the limitations of that Hearsay excep-
tion, and has also been employed (though having nothing in common) to
designate the scope of an agent's authority, it is natural that judges should
sometimes have discussed the two principles, in their application to railway
accidents, as if there were but one principle.^ That there are two distinct
and unrelated principles involved must be apparent; and the sooner the
Courts insist on keeping them apart, the better for the intelligent develop-
ment of the law of evidence. Practically, the results of the two principles in
application are decidedly different ; for upon the principle of the Hearsay ex-
ception such statements may (if admissible) be received against either party ;
but, on the principle of agency, against the employer only ; moreover, when
offered against the employer, the limitations of the two principles would be
in some respects more favorable, in others less favorable, to the reception of
the evidence.
Upon the application of the principle to specific instances, it would be use-
less here to enter, for only the rules of the substantive law Of agency are
involved.^ It may be noted that the fad of agency must of course be some-
2 This confusion is dealt with, posil, § 1797. v. Bierl, 101 id. 240, 67 N. W. 200, 70 N. W.
Examples of it mav be found in opinions in the 207 ; 1898, Sohoep v. Ins. Co., 104 id. 354, 73
following oases : 1886, Vicksburg K. Co. v. N. W. 825 ; 1898, Metropolitan Nat'l Bank v.
O'Brien, 119 U. S. 99, 7 Sup. 118 ; 1893, Lin- Com. St. Bank, ib. 682, 74 N. W. 26 ; Kan. .
deiberg v. Mining Co., 9 Utah 163, 33 Pac. 692. 1895, Cherokee Co. v. Dickson, 55 Kan. 62, 39
For an example of the correct treatment of these Pac. 691 ; 1896, First Nat'l Bank v. Mar.shall,
two principles, see Blackman v. West Jersey & 56 id. 441, 43 Pac. 774 (bank president) ; 1897,
S. R. Co., 68 N. J. L. 1, 52 Atl. 370 (1902). Atchison T. & S. F. R. Co. a. Osborn, 58 id. 768,
' The following include merely casual recent 51 Pac. 286 ; 1898, Atchison T. & S. F. R. Co.
decisions in various jurisdictions, which may ■!>. Cattle Co., 59 id. Ill, 52 Pac. 71 ; Zj/..' 1895,
serve as illustrations : Ala. : 1895, Postal Cable Louisville & N. R. Co. t'. Ellis, 97 Ky. 330, 30
Co. V. LeNoir, 107 Ala. 640, 18 So. 266 ; Postal S. W. 979 ; 1896, Wash )-. Gary, — id. — , 33
Cable Co. v. Brantley, ib. 683, 18 So. 321 ; 1897, S. W. 728 ; 1896, Tarr Co. v. Kimbrough, —
Georgian. I. Co. v. Warten, 113 id. 479, 22 So. id. — , 34 S. W. 528 ; 1896, East Tenn. Tel.
288 ; 1897, Louisville & N. R. Co. v. Hill, 115 id. Co. v. Simms, 99 id. 404, 36 S. W. 171 ; 1897,
334, 22 So. 163 ; Ark. : 1893, Fort Smith Oil Graddy v. Tel. Co., — id. — , 43 S. W. 468 ;
Co. V. Slover, 58 Ark. 168, 179, 24 S. W. 106 ; 1897, C. & 0. R. Co. v. Smith, 101 id, 104, 39
1896, Ames Ironworks v. Pulley Co., 63 id. 87, S. W. 832 ; Mass. : 1849, Cooley v. Norton, 4
37 S. W. 409 ; Cai. : 1895, Hewes w. Fruit Co., Cush. 95 ; 1897, Geary v. Stevenson, 169 Mass.
106 Cal. 441, 39 Pac. 853 ; 1895, Mutter ». Lime 23, 47 N. E. 508 ; 1897, Gilmoreu.Paper Co., 169
Co., — id. — , 42 Pac. 1068 ; 1896, McGowan id. 471, 48 N. E. 623 ; Mich. : 1895, Ablard v.
V. McDonald, 111 id. 57, 43 Pac. 418; 1898, R. Co., 104 Mich. 147, 62 N. W. 172; 1897,
Heame v. DeYoung, 119 id. 670, 52 Pac. 150, Andrews v. Min. Co., 114 id. 375, 72 N. W. 242 ;
499 ; Conn. : 1896, Builders' Co. v. Cox, 68 Conn. 1898, Maxson «. R. Co., 117 id. 218, 75 N. W.
380, 36 Atl. 797 ; Cfa. : 1886, Krogg v. R. Co., 459 ; Miss. : 1898, State v. Spengler, — Miss.
77 Ga. 202, 213 ; 1897, Southern R. Co. v. Kin- — , 23 So. 33 ; Mont. : 1898, Wilson v. Sax, 21
chen, 103 id. 186, 29 S. E. 816; III: 1897, Mont. 374, 54 Pac. 46; Nebr. : 1902, South
Pennsylvania Co. v. Bridge Co., 170 111. 645, 49 Omaha w. Wrzensinski, — Nebr. — , 92 N. W.
N. E. 215 ; Ind. : 1895, Treager v. Mining Co,, 1045 ; N. H. : 1894, Nebonne v. R. Co., 67 N. H.
142 Ind. 164, 40 N. E. 907 ; In. : 1895, Waite 531, 38 Atl. 17 ; N. C. : 1895, Williams v. Tel.
V. High, 96 la. 742, 65 N. W. 397 ; 1897, Irlbeck Co., 116 N. C. 558, 21 S. E. 298 ; 1896, Craven
1279
§ 1078 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
how evidenced "before the alleged, agent's declarations can be received as admis-
sions ; and therefore the use of the alleged agent's assertions that he is agent
would for that purpose be inadmissible, as merely begging the very question.*
Nevertheless, they might be received provisionally as verbal acts {post,% 1770)
indicating that he was acting on another's behalf, not his own, leaving it to
subsequent proof to establish his connection as agent with the present party .^
It may be added that, conformably to the general doctrine {aide, § 4) by
which the rules of evidence are no different in criminal cases, the admis-
sions of an agent may equally be received in a criminal charge against the
principal But whether the fact thus admitted by the agent would suffice
to charge the principal criminally without his personal knowledge or con-
nivance would depend upon the particular rule of criminal law involved.^
(2) An attorney is an agent to conduct litigation ; his admissions, there-
fore, are under certain circumstances receivable ; this application of the
principle has already been examined {^ante, § 1063).
(3) A partner charges the partnership by virtue of an agency to act for it ;
how far his admissions are receivable depends therefore on the doctrines of
agency as applied to a partnership.'^
(4) The use of the admissions of a deputy sheriff against his sheriff seems
to rest on an application of the theory of agency.^
(5) A hushand or wife may, in the ordinary way, become an agent, one for
the other, and the agent's admissions are then receivable. But the mere
marital relation does not of itself make them agents.^
V. Russell, 118 id. 564, 24 S. E. 361 ; 1898, this does not prevent the alleged agent from
Albert v. Ins. Co., 122 id. 92, 30 S. E. 327 ; Or. : testifying upon the stand to the fact of his
1896, North P. Lumber Co. v. W. S. M. L. & M. agency ; for here his testimony is not offered as
Co., 29 Or. 219, 44 Pao. 286 ; 1897, First Nat'l an admission : 1898, American Expr. Co. v.
Bank v. Linn Co. Bank, 30 id. 296, 47 Pao. 615 ; Lankford, 2 Ind. Terr. 18, 46 S. W. 183 ; 1897,
1897, Wicktorwitz v. Ins. Co., 31 id. 569, 51 Wicktorwitz v. Ins. Co., 31 Or. 569, 51 Pac. 75.
Pac. 75 ; Pa. : 1895, Shafer v. Lacook. 168 Pa. » 1899, Parker ». Bond, 121 Ala. 529, 25 So.
497, 32 Atl. 46; 1896, Giberson v. Mills Co., 898 ; 1898, Nowell v. Chipman, 170 Mass. 340,
174 id. 369, 34 Atl. 563 ; S. D. : 1896, Estey v. 49 N. E. 631.
Birmbiium, 9 S. D. 174, 68 N. W. 290 ; Tex. : « 1806, Lord Melville's Trial, 29 How. St.
1898, Houston E. & W. T. R. Co. v. Campbell, Tr. 550, 765, quoted ante, § 4 ; 1880, R. v.
91 Tex. 651, 45 S. W. 2 ; U. S. : 1886, Steam- Downer, 14 Cox Cr. 486, 489.
boat Co. V. Brockett, 121 U. S. 637, 649, 7 Sup. ' Some of the complicated problems here
1039 ; 1893, Louisville & N. R. Co. v. Stewart, 9 arising are discussed in a note to Greenleaf on
U. S. App. 564, 6 C. C. A. 147, 56 Fed. 808 ; Evidence, 1,5th ed., I, § 112.
1895, Nelson v. Bank, 16 C. C. A. 425, 69 Fed. Whether the admissions of a partner made
802 ; 1894, St. Louis & S. F. R. Co. u. M'Lelland, after dissolution are receivable against the others,
10 id. 300, 62 Fed. 116; Utah: 1893, Lin- has been a much controverted point, probing
derberg v. Min. Co., 9 Utah 163, 33 Pac. 692 ; deeply into the theory of partnership ; the nega-
1897, Moyle v. Congi-eg. Soc, 1§ id. 69, 50 Pac. tive answer was made by Spencer, C. J., in
806; Fa. : 1895, Rensch v. Cold Storage Co., "Walden v. Sherburne, 15 Johns. 409 (1818);
91 Va. 534, 22 S. E. 358 ; 1896, Norfolk & C. the affirmative, by Wilde, J., in Cady v. Sliep-
R. Co. V. Lumber Co., 92 id. 413, 23 S. E. 737 ; herd, 11 Pick. 400, 407 (1831).
1895, Jammison v. R. Co., ib. 327, 23 S. E. 758. » 1833, Snowball e. Goodricke, 4 B. & Ad.
* This IS never disputed, except by those 541; except so far as by custom the sheriff (liy
attorneys who have to receive their legal train- reason of his bond of indemnity from the
iug at the hands of the Supreme Court : 1900, deputy) is treated as merely the nominal party,
Jones V. Harrell, 110 Ga. 373, 35 S. E. 690; in which case (on the principle of § 1076, ante)
1899, Norberg v. Plummer, 58 Nfibr. 410, 78 the deputy's admissions are receivable without
N. W. 708 ; 1897, Union G. & T. Co. v. Robin- limitation, as being those of the real party s
son, 24 C. 0. A. 650, 79 Fed. 420 ; 1898, Gregory 1815, Tyler v. Ulmer, 12 Mass. 163, 166.
V. Loose, 19 W^ash. 599, 54 Pao. 33. Of course * The cases are collected post, § 2232 (marital
1280
§§ 1048-1087] PEIVIES IN OBLIGATION. § 1079
(6) An interpreter may be made an agent to converse, and then his trans-
lation is receivable as an agent's admission, without calling him to the stand.
But otherwise his extrajudicial statements are excluded by the Hearsay
rule.i?
§1079. Same: Co-Conapiratora ; Joint Tortfeaaors. (1) A conspiracy
makes each conspirator liable under the criminal law for the acts of every
other conspirator done in pursuance of the conspiracy. Consequently, by
the principle already exemplified in other relations {ante, § 1077) the ad-
missions of a co-conspirator may be used to affect the proof against the
others, on the same conditions as his acts when used to create their legal
liability :
1843, Penne/ather, C. J., in R. v. O'Connell, 5 State Tr. N. s. 1, 710 : " When evidence
is once given to the jury of a conspiracy, against A, B, and C, whatever is done by A, B,
or C in furtherance of the common criminal object is evidence against A, B, and C,
though no direct proof be given that A, B, or C knew of it or actually participated in
it. . . . If the conspiracy be proved to have existed, or rather if evidence be given to
the jury of its existence, the acts of one in furtherance of the common design are the
acts of all ; and whatever one does in furtherance of the common design, he does as the
agent of the co-conspirators."
The tests therefore are the same, whether that which is offered is the act or
the admission of the co-conspirator ; in other words, the question is purely
one of criminal law, or of conspiracy as affecting joint civil liability, and its
solution is not to be sought in any principle of evidence.^
privilege). For admissions by either as grantor 683, 39 Pao. 219 ; Ky. : 1895, Twyman v. Com.,
of property, see post, §§ 1080-1086, especially — Ey. — , 33 S. W. 409 ; 1901, Powers o.
§ 1086. Com., — id. — , 61 S. W. 735 ; 1901, Howard
1" The cases are collected ^osi, § 1810 (Hear.say v. Com., — id. — , 61 S. W. 756 ; Mass. : 1897,
rule). For other questions concerning inter- Com. v. Hunton, 168 Mass. 130, 46 N. E. 404 ;
preters, see ante, §§ 668, 811. 1902, Com. v. Rogers, 181 id. 184, 63 N. E. 421 ;
^ The following list of cases includes only Mirm. : 1895, Nicolay v. Mallery, 62 Minn. 119,
certain leading English cases and some modern 64 N. "W. 108 ; 1903, State v. Ames, — id. — ,
or leading American rulings: Eng. ; 1794, R. 96 N. W. 330; Mo.: 1895, Hart v. Hicks, 129
D. Hardy, 24 How. St.Tr. 451 ; 1794, R.fl. Stone, Mo. 99, 31 S. W. 351 ; 1899, State v. Harris,
25 id. 1 et passim ; 1817, R. v. Watson, 32 id. 150 id. 56, 51 S. W. 481 ; 1903, State v. Ken-
80, 359, 538 ; 1817, R. v. Brandreth, ib. 766, nedy, — id. — , 75 S. W. 979 ; A^ebr. : 1897
852 ; 1820, R. v. Hunt, 3 B. & Aid. 5, 66 ; Ala. : Farley v. Peebles, 50 Nebr. 723, 70 N. W. 231 ;
1896, Hunter v. State, 112 Ala. 77, 21 So. 65 ; 1903, Lanibu. State,— id. — , 95 N. W 1050 ■
1897, Everage v. State, 113 id. 102, 21 So. 404 ; 1903, O'Brien v. State, — id. — , 96 N w'
1899, McLeroy v. State, 120 id. 274, 25 So. 247 ; 649 ; N. H. : 1892, Cobum v. Storer, 67 N h'
1903, Collins v. State, — id. — , 34 So. 993 ; 86, 36 Atl. 607 ; N. M. : 1896, Borrego v. TeiT
Ark. : 1859, Clinton v. Estes, 20 Ark. 216, 225 ; 8 N. M. 446, 46 Pac. 349 ; N. Y ■ 1874 Kellev
1899, Willis V. State, 67 id. 234, 54 S. W. 211 ; v. People, 55 N. Y. 565, 575 ; 1897, People v
Cal.: 1896, People w. Oldham, 111 Cal. 648, 44 Peckens, 153 id. 576, 47 N. E. 883; N. C ■
Pac. 312 ; 1899, People v. Winters, 125 id. 325, 1896, State v. Turner, 119 N. C. 841, 25 S E
57 Pac. 1067 ; 1900, People v. Rodley, 131 id. 810 ; Or. : 1897, State o. Tice, 30 Or. 457 48
240, 63 Pac. 361 ; Colo. : 1873, Solander v. Peo- Pac. 367 ; 1897, State v. Magone, 32 id. 206, 51
pie, 2 Colo. 48, 64 ; 1888, Crawford v. People, Pac. 452 ; 1898, State o. Hinkle, 33 id. 93
12 id. 290, 293, 20 Pac. 769 ; Conn. : 1897, State 54 Pac. 155 ; 1899, State v. Roach, 35 id. 224, 57
V. Thompson, 69 Conn. 720, 38 Atl. 868 ; Fla. . Pac. 1016 ; 1902, State v. Aiken, 41 id. 294, 69
1898, Mercer v. State, 40 Fla. 216, 24 So. 154 ; Pac. 683 ; Pa. : 1895, Wagner v. Haak, 170 Pa
Ga. : 1899, Carters. State, 106 Ga. 372, 32 S. E. 495, 32 Atl. 1087 ; S. C. : 1897, State v. Rice
345 ;, III. : 1887, Spies v. People, 122 111. 1, 153, 49 S. C. 418, 27 S. E. 452 ; Tenn. : 1827, Corn-
228, 12 N. E. 865, 17 N. E. 898 ; 1889, Van well v. State, Mart. & Y. 147, 153 ; 1896, Wielil
Eyck V. People, 178 id. 199, 62 N. E. 852; t). Robertson, 97 Tenn. 458, 37 S. W. 274 ; Tex' ■
Ind. : 1901, Musser v. State, 157 Ind. 423, 61 1894, McKenzie v. State, 32 Tex. Cr. 568 577
N. E. 1 ; Kan. : 1895, State v. Rogers, 54 Kan. 25 S. W. 426 ; 1892, Logan v. U. S., 144 'u. s'
1281
§ 1079 EXTE A JUDICIAL ADMISSIONS. [Chap. XXXV
In certain aspects, however, the rules of evidence sometimes come to be
involved, and a few discriminations must be noted, (a) The general prin-
ciple affecting the order of evidence leaves it ultimately to be controlled by
the trial Court's discretion, subject to certain provisional rules which obtain
unless special considerations overthrow them (post, § 1867). In the present
application, the rule for conditional relevancy (post, § 1871) naturally ap-
plies ; i. e. the statements of A being receivable against B on the hypothesis
that A and B have conspired, some evidence of the conspiracy must ordi-
narily be furnished before offering the statements of A ; in a given case, the
trial Court's discretion may relax this rule.^ (6) Where the alleged con-
spiracy was carried into effect by the acts of a mob or other riotous assembly,
the defendant whose instigation and leadership are proved becomes liable
for the mob's acts, and thus the conduct and statements of any and all
persons in the mob, whether identified or not, become a proper subject of
consideration ; and a field of somewhat indefinite extent is opened.* But in
such cases the utterances of members of the mob or of bystanders may also
be receivable (under an exception to the Hearsay rule) for other purposes
{post, § 1729) ; and accordingly the precise issue and object of the evidence
must be discriminated. Elsewhere {post, § 1790) a summary survey is taken
of the various questions that may -arise in this connection, (c) That the
confession of a principal is admissible, on the trial of the accessory, to evidence
the commission of the crime by the principal, seems clear on the present
principle, supposing some evidence of the defendant's cooperation to be first
furnished.* But whether the judgment of convicfion of the principal is
receivable for the same purpose depends on the doctrine of the effect of
judgments.^
(2) The admissions of one joint tortfeasor are receivable against another,^
263, 309, 12 Sup. 617 ; 1893, Brown v. U. S., 1897, State v. Moore, 32 Or. 65, 48 Pac. 468 ;
150 id. 93, 98, 14 Sup. 37 ; 1895, Cliine v. 1902, State v. Prater, 52 W. Va. 132, 43 S. E.
U. S., 159 id. 590, 16 Sup. 125 ; 1896, Wiborg 238.
V. U. S., 163 id. 632, 16 Sup. 1127, 1197 ; 1903, » 1820, K. v. Hunt, 3 B. & Aid. 5, 66 ; 1821,
Connecticut M. L. Ins. Co. v. Hillmon, 188 id. Bedford v. Birley, 1 State Tr. N. s. 1071, 1157,
208, 23 Sup. 294 ; Utah : 1898, State v. Kilburn, 3 Stark. 87 (battery in dispereing a mob ; solici-
16 Utah, 187, 52 Pac. 277 ; Wash. : 1896, State tations bv pereons present to others to join
V. McCann, 16 Wash. 249, 47 Pac. 443, 49 Pac. them, admitted) ; 1843, K. v. O'Connell, 5 id.
216. 1, 244, 262, 276 (seditious assembly ; inscrip-
It is immaterial that the declarant has been tion on an arch through which the persons
acquitted of the charge, for that judgment does passed, admitted as a part of its conduct ; re-
not affect the trial in hand : 1898, Holt v. State, marks, by persons about an hour after the meet-
39 Tex. Cr. 282, 45 S. W. 1016, 46 S. W. 829 ing, excluded ; document circulated in various
(repudiating the obiter dictum in Dever v. State, portions of the meeting, received) ; 1884 Carr
37 id. 396, 30 S. W. 1071). i-. State, 43 Ark. 99, 102 ; 1854, Brennan d.
2 The cases vary more or less in their state- People, 15 111. 511, 515 (murder of S. by a
ment of the rule: 1820, The Queen's Case, 2 B. crowd of men among whom was the defendant ;
& B. 303 ; 1839, R. v. Frost, 4 State Tr. N. s. 85, indications of the crowd's purpose in pursuing
229, 244 ; 1848, R. v. CuflFey, 7 id. 467, 476 ; S., admitted to ascertain whether they had a
1888, Parnell Commission's Proceedings, 9th day, common purpose).
Times Rep. pt. 3, p. 34 ; 1899, People v. Gomp- * 1899, Howard v. State, 109 Ga. 137 34
ton, 123 Cal. 403, 56 Pac. 44 ; 1898, State v. S. E. 330 ; 1899, Givens v. State, 103 Tenn
Thompson, 69 Conn. 720, 38 Atl. 868 ; 1903, 648, 55 S. W. 1107.
State V. Bolden, 109 La. 484, 33 So. 571 ; 1902, ' See some cases collected ^osi, § 1388.
Cora. V. Rogere, 181 Mass. 184, 83 N. E. 421 ; « 1809, R. v. Havdwicke, 11 East 578, 585
1897, State v. May, 142 Mo. 135, 43 S. W. 637 ; (see quotation supra, § 1076 ; and some of the
1902, Cohn v. Saidel, 71 N. H. 558, 53 AtL 800 ; civil cases cited mpra, note 1).
1282
§§ 1048-1087] PEIVIES IN OBLIGATION. § 1080
on the same principle and witli the same limitations as those of conspirators ;
this is merely the same doctrine in its application to civil liability for torts.
§ 1080. Privies in Title ; General Principle ; History of the Principle. The
admissions of one who is privy in title stand upon the same footing as
those of one who is privy in obligation {ante, § 1077). Having precisely the
same motive to make correct statements, and being identical with the party
(either contemporaneously or antecedently) in respect to his ownership of
the right in issue, his admissions may, both in fairness and on principle, be
proffered in impeachment of the present claim. In the following passages,
both principle and policy are lucidly expounded from various points of
view:
1819, Henderson, J., in Guy v. Hall, 3 Mnrph. 150 : " The declarations or confessions
of the person making them are evidence against such person and all claiming under him
by a subsequent title, and for the plainest reasons. Truth is the object of all trials, and
a person interested to declare the contrary is not supposed to make a statement less
favorable to himself than the truth will warrant ; at least there is no danger of over-
leaping the bounds of truth as against the party making the declarations. It is therefore
evidence against him, and his subsequent purchaser stands in his situation ; for he cannot
better his title by transferring it to another, or thereby affect the rights of those who
have an interest in his confessions. ... It is asked. Why not swear him ? The answer
is, The [other] party likes his declarations better. He may, from some motive, vary his
statement; and the party offering this evidence is alone to judge."
1832, Kennedy, J., in Gibhlehouse v. Stong, 3 Rawle 436, 445 : "In the case before us
the testimony offered and rejected was not of that character which in a technical and
legal sense comes under the denomination of hearsay. It comes under what is considered
the declarations or admissions of the party to the suit or his privies, that is, those under
whom he claims; in respect to which the general rule of law is just as well settled that
they shall be received in evidence as that hearsay shall not. All a man's own declarations
and acts, and also the declarations and acts of others to which he is privy, are evidence,
so far as they afford any presumption against him, whether such declarations amount to
an admission of any fact, or such acts and declarations of others to which he is privy
afford any presumption or inference against him. . . . The confessions of the party
himself (which I do not understand to be denied) have always been considered good and
admissible evidence of any fact admitted by them to be true, and may be given in evi-
dence to prove it, notwithstanding the confessions might be such as to show that twenty
witnesses were present who could all testify to its existence or non-existence, and who
might all appear to be in the court-house at the time when such confessions should
happen to be offered in evidence against the party making them. And this rule of
admitting the confessions or declarations of the party extends not only to the admission
of them against himself, but against all who claim or derive their title from him ; in
other words, between whom and himself there is a privity. There are four species of
privity: privity in blood, as between heir and ancestor; privity in representation, as
between testator and executor, or the intestate and his administrators ; privity in law, as
between the Commonwealth by escheat and the person dying last seised without blood or
privity of estate ; and privity in estate as between the donor and the donee, lessor and
the lessee, vendor and the vendee, assignor and the assignee, etc. . . . Upon this same
principle it is, that executors and administrators, as also devisees, legatees, heirs and next
of kin, are all bound by the promises, whether written or verbal, of their respective testar
tors or intestates, so far as they may have received estates from them that are liable, and
the declarations and admissions of such testators and intestates are uniformly received in
evidence against their devisees, legatees, heirs, and next of kin, so as to affect the estates
1283
§ 1080 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
which have passed to them. Privies in estates, such as vendee and vendor, assignee and
assignor, stand upon the same footing in this respect to each other that privies in blood
do. I know of no distinction. That which is binding upon the vendor will generally be
equally so upon his vendee ; and whatever would have been admissible as evidence
against the former ought not only to be so against the latter, but ought to have the same
effect too. . . . Lord EUenborough has given the true reason of the rule for admitting
the declarations of a party in evidence where he says it ' is founded upon a reasonable
presumption that no person will make any declaration against his interest unless it be
founaed in truth.' If true when made, and therefore receivable in evidence, his selling
or disposing oi the property afterwards cannot make his former declarations in respect to
it untrue, nor furnish any reason that I can perceive which ought to derogate from its
character as evidence. But I cannot avoid believing that as long as the great object of
receiving testimony is to aid in and to promote the investigation of truth, the declarations
or admissions of a vendor or assignor against his interest, made before the sale or assign-
ment, may be more safely relied on and received in evidence against his vendee or as-
signee than the testimony that would be given by such vendor or assignor himself, if the
party, claiming in opposition to his vendee or assignee must be compelled to resort to
him."
1843, Messrs. Cowen and Hill, in Notes to Phillipps on Evidence, No. 481, p. 644 :
" [The owner's] estate or interest in the same property, afterwards coming to another, by
descent, devise, right of representation, sale or assignment, in a word, by any kind of
transfer, whether it be the act of law or the act of the parties, whether the subject of the
transfer be real or personal estate, corporeal or incorporeal, choses in possession or choses
in action, the successor is said to claim under the former owner; and whatever he may
have said affecting his own rights, before departing with his interest, is evidence equally
admissible against his successor claiming from him, either immediately or remotely.
And in this instance, it makes no difference whether the declarant be alive or dead ; for
though he be a competent witness, and present in court, his admissions are receivable.
This doctrine proceeds upon the idea that the present claimant stands in the place of the
person from whom his title is derived ; has taken it cum onere ; and as the predecessor
might have taken a qualified right, or sold, charged, restricted, or modified an absolute
right, and as he might furnish all the necessary evidence to show its state in his own
hands, the law will not allow third persons to be deprived of that evidence by any act of
transferring the right to another."
This principle is to-day nowhere denied.'' But its recognition was slow in
coming. Of the fundameatal and common doctrines of our law of evidence,
this was perhaps the latest to receive judicial recognition. Not until the
period 1830-1850 can the full acceptance of the principle be said to have
been established, either in England or in the United States. As late as 1824,
Mr. Starkie, in his philosophical treatise,* ventured only to say that the ad-
missions of a prior owner were "sometimes" receivable. In 1839, Mr. Esek
Cowen and Mr. Nicholas Hill, Jr. (the former then a judge of New York,
the latter afterwards), were obliged to devote a long excursus, in their edition
of Mr. PhiDipps' treatise,^ to a demonstration of the various bearings of the
principle in its logical completeness. It was mainly through their masterly
exposition that clarity of doctrine became thenceforward apparent in the
American ruhngs.
' Except in one traditional respect in New » Evidence, II, 48.
York, firmly fixed too long ago to bo now dis- ' Note No. 481.
carded ; see § 1083, post.
1284
§§ 1048-1087] PRIVIES IN TITLE. ^ § 1080
The reasons for the confusion and halting development in the prior genera-
tion are now not difficult to detect. Long enough before then, to be sure, a
single aspect of the principle had been plainly enough known and constantly
applied, — namely, the use of recitals in deeds of preceding proprietors ; i" for
in the substantive law the rights of the successor were defined by the terms
of his chain of prior deeds, and it was a simple matter to concede an analo-
gous evidential force, against him, to those parts of the deed which were not
strictly definitive of the scope of his title." But this was not with full per-
ception of the principle ; and in respect to all other forms of admissions, par-
ticularly oral ones, there were strong counter-analogies which tended to obscure
the further perception of the principle. By the end of the 1700s the rules of evi-
dence were beginning to be more carefully considered than ever before {ante,
§ 8), and the Hearsay rule was in particular strictly enforced. The excep-
tions to this rule were by no means yet fully established ; the scope of the
exception for statements of facts against interest was not finally determined
till the first quarter of the 1800s {post, § 1455). For that exception the re-
quirement was essential that the declarant should be deceased, — a circum-
stance immaterial for admissions {ante, § 1049). Since admissions (as already
observed) are commonly though not necessarily against interest at the time
of making {ante, § 1048), it was natural enough, in this inchoate stage of the
conception, to fail to distinguish admissions of parties from the general hear-
say exception, then in formation, for statements of facts against interest.
Accordingly, even after it began to be perceived that a predecessor's oral
statements were assimilable to his deed-recitals as admissions, the notion per-
sisted for a long time that his death was essential (by analogy to the Hearsay
exception) for their reception ; and not until 1830 or thereabouts, either in
England or the United States, was this notion thoroughly dislodged. ^^ The
thought was, up to that time, that if the person were living, whether he were
grantor or were totally disconnected from the cause, his statement was hear-
say and his testimony on the stand must be required.
Another doctrine, also, combined to divert judicial attention from the de-
velopment of the doctrine of admissions ; this was the verbal-act doctrine
{post, §§ 1772-1778). Still looking from the hearsay point of view, the judges
perceived, in the early 18Qflsrthat4he-xule was not applicable to verbal parts
of acts necessary to be proved, and in pmieular to declarations of claim or
disclaim accompanying and coloring the occupation of land, where the issue
was merely one of possession. Such declarations commonly proceeded from
^^ 1704, Ford v. Lord Grey, 1 Salk. 286. have been received in evidence, and not his deo-
^ The only controversy in this respect was larations after. But I believe that this has
whether the recitals were conclusive, on the been in cases where the party was dead." And
principle of estoppel, — a question carefully con- yet, as soon after as 1834, Parke, J., says, in
sidered by Mr. J. Story, in 1830, in Carver u. "Woolway v. Rowe, 1 A. & E. 114, 117: "The
Jackson, 4 Pet. 1, 83, cited ipost, § 1256. point [above ruled] is quite new to me. I always
^^ 1827, Gaselee, J., in Hedger t>. Horton, 3 thought the party's interest at the time of the
C. & P. 179: "I have always understood that, declaration was the ground on which the evi-
with respect to real estates, the declarations of a dence was admitted." Other authorities are col-
party, made before he parted with his interest, looted ante, § 1049.
1285 ,
§ 1080 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
prior occupants where the proof of adverse possession, in founding a prescrip-
tive title, extended into prior generations ; and the propriety of receiving them
came soon to be conceded. Now, in most of the cases affecting real property,
in which the declaration would have been receivable as an admission, it was
also receivable on one or the other of the foregoing principles, i. e. either as
a statement of a fact against proprietary interest (under the Hearsay ex-
ception), or as a verbal part of an act coloring the possession. Hence it
was that a generation elapsed, after the opening of the 1800s, before the
applicability of the doctrine of admissions was fully conceived; for both
counsel and judges were naturally restrained in the channel of their
speculations by these competing analogies for the commonest species of
admissions.-^^
Dartmouth v. Eoberts, in 1812,i* shows an evident logical effort, ending in
the successful appreciation of the notion of a predecessor's admissions, in an
issue concerning realty. Woolway v. Eowe, in 1834,^^ finds the doctrine un-
questioned ; though Hedger v. Horton, in 1827,^® had shown it still clouded
by the other analogies. For issues of personalty, Ivat v. Finch, in 1808,^^
had already opened the way ; and a series of rulings on commercial paper,
beginning with Kent v. Lowen, in the same year,^^ fully developed the prin-
ciple before 1825. In the United States the development proceeded by
almost contemporaneous steps. The English reports were now fully in the
hands of the American lawyers and judges ; and the ambiguity and hesitation
of the Westminster rulings were reflected in the discussions in the United
States. In Connecticut, for example, the whole doctrine of predecessors' ad-
missions was expressly under the ban as late as 1815,^* and not until 1845 ^
did the new learning receive its settled sanction. In New York the principle
was applied in realty issues as early as 1813;^^ but the rulings vacillated,
and as late as 1843, in the much -argued case of Paige v. Cagwin,^ the whole
doctrine was put in jeopardy, and emerged to survive in only a mutilated
form. In Vermont, the New York rule prevailed as late as 1845.^ In Mas-
sachusetts, the principle seems to have been ignored throughout the first
quarter of the 1800s.^ In Pennsylvania alone, at the early period of 1782, a
precocious but clear perception of the entire principle was found ; ^ although
1' For example. Doe v. Jones, in 1808 {post, such statements on the express ground that to
§ 1458), might have been decided on the prin- receive them "would be making the declara-
ciple of admissions and not of statements against tions of a third person evidence to affect the
interest ; and Stanley v. White, in 1811 {post, plaintiff's title when that person was not on the
§ 1778) and Doe v. Pettett {post, § 1778) need record." In Kent v. Lowen he correctly desig-
not have been decided on the verbal-act prin- nated such a person as "one through whom the
ciple. plaintiff made title " ; he had seen the light.
" 16 East 334. These and the following ^^ Beach v. Catlin, 4 Day 284 ; Barrett v.
cases are further cited ^osi, §§ 1082-1086. French, 1 Conn. 354.
IS 1 A. & E. 114. 20 Smith v. Martin, 17 Conn. 399.
'■' 3 C. & P. 179. 21 Johnson v. M'Call, 10 John. 377.
" 1 Taunt. 141. 22 7 Hill 361.
" 1 Camp. 177, by L.C.J. EUeuborough. The 23 Hines v. Soule, 14 Vt. 99; it was repudi-
formative stage of the conception is interestingly ated after a decade.
shown by the same judge's ruling, only three 24 Clarke v. Waite, 12 Mass. 439 ; Bridge v.
years before, in a stronger ease for admission Eggleston, 14 id. 245.
(Duckham v. Wallis, 5 Esp. 151), excluding 25 Morris v. Vanderen, 1 Dall. 64.
1286
§§ 1048-1087] PRIVIES IN TITLE. § 1081
even here in 1832 ^ it was still considered open to attack. After the publi-
cation of Messrs. Cowen and Hill's commentary, there was no longer room
for misunderstanding or debate.
§ 1081. Same: Decedent; Insured; Co-legatee, Co-heir, Co-executor; Co-
tenant; Bankrupt. The principle just examined may be phrased in this
way : "When by the hypothesis of the party himself his title as now claimed
is identical with that of another person, as a prior holder, the statements of
that other person, made during the time of his supposed title, are receivable
against the party as admissions.^ This question of identity of title depends
obviously upon the substantive law of property. In this respect it is without
the scope of the law of evidence, and does not call for consideration here.
But a few of the commoner instances may be briefly examined for illustra-
tion's sake ; and in particular the relation of grantor and grantee must be
examined in detail, because of its many complicated relations with other
rules of evidence.
(1) No modern Court doubts that a decedent, whose rights are transmitted
intact to his successor, is a person whose admissions are receivable against
a party claiming the decedent's rights as heir, executor, or administrator.^
The statutory claim, however, in an action for death by wrongful act, of the
executor or other representative, is of an anomalous nature ; in some features
it is an action for a surviving claim of the deceased, while in others it is an
action for an injury to the dependent relatives ; there is therefore some
ground for holding that the deceased's admissions are not receivable.^ It
may however equally be argued that, being admissible in one aspect, they
should not be excluded because the action has additional aspects;* more-
over, they ought in any event to be receivable under the Hearsay exception
for statements of facts against interest, as some Courts concede.^ In a benefi-
ciary's action for the sum conditioned in a policy of life-insurance, there is
no legal identity of title between the deceased and the beneficiary, although
the beneficiary's right is after all no more than the creation, of the insured's
contract ; hence, unless the beneficiary has in the beginning been made a party
to the contract so as to bind himself to be identified with the insured (and
some forms of contract attempt this), the insured's admissions would not be
receivable against the beneficiary. The distinction sometimes taken between
statements before and statements after the policy's execution does not seem
to be a sound one. It must be conceded, however, that the situation admits
2' Gibblehouae v. Stong, 3 Eawle 436, quoted Eckert v. Triplett, 48 Ind. 174, 176. Compare
supra. § 1076, mite.
^ Or, in another form : wherever the other * 1898, Camden & A. K. Co. v. Williams, 61
person could by his acts affect the title of the N. J. L. 646, 40 Atl. 634 (undecided),
present party, the other person's admissions may * 1899, Georgia K. & B. Co. d. Fitzgerald,
be used as evidence in disproof of that title. 108 Ga. 507, 34 S. E. 316 (wife's action for hus-
' 1836, Smith v. Smith, 3 Bing. N. C. 29, band's death) ; 1896, Van Alstine v. Kaniecki,
33 (deceased's admissions as to a gift, received ; 109 Mich. 318, 67 N. W. 502 (action by a
"strictly speaking, the defendant claims under mother under the liquor-damage act); 1896,
him "). So, too, the administrator de bonis non Hughes v. Canal Co., 176 Pa. 254, 35 Atl. 190
is affected by the admissions of the executor or (wife's action for death of the husband),
administrator, who is his direct predecessor; 1874, " Post, § 1461.
1287
§1081
EXTEAJUDICIAL ADMISSIONS.
[Chap. XXXV
of mucli refinement of reasoning, dependent on the theory of contract.^ In
any event the use of the insured's declarations as circumstantial evidence of
his knowledge of his illness (ante, § 266) must be distinguished.
(2) Where a title is created as a joint interest and by a single legal act, it
would seem that the admissions of any one of the holders would be receivable
against another as party. This would dictate the use of the admissions of a
co-obligee in a joint contract,'' but not of a co-tenant of realty,^ nor of a co-
trustee.^ It seems also clear, and is conceded on all hands, that a co-devisee
or co-legatee does not hold by a joint title, and therefore his admissions
cannot be used to affect another. But it does not follow (as is usually main-
tained) that they are not to be received at all, even against himself when he
is a party.i* The fact that there can be but a single judgment, for or against
the validity of the entire will, constitutes only an imaginary obstacle ; for it
is not inherently necessary that the case should be proved against each party
by the same evidence; a joint promise, for example, could be evidenced
against A by his handwriting, against B by his admission, and against C by
one who saw the document signed, and yet it must be either a joint promise
or none. The refinement of reasoning and scrupulosity of caution which
practically shuts out all such evidence of admissions in will-causes seems to
be ill-judged. It is nevertheless approved by most Courts to-day.^^ A few
Courts are found to withstand it,^ following what must be regarded as the
orthodox view, which receives such admissions as against the party making
them.^**
' Compare the following rulings, pro and con :
1903, Sutcliffe v. Iowa S. T. M. Ass'n, 119 la.
220, 93 N. W. 90 ; 1863, Rawls v. Ins. Co., 27
N. Y. 282, 290 ; 1890, Smith v. Benefit Soo'y,
123 id. 85, 25 N. E. 197 ; 1880, Union Cent. L.
I. Co. 0. Cheever, 36 Oh. St. 201, 208 ; 1879,
Mobile L. I. Co. v. Moms, 3 Lea 101, 103 ; 1896,
Fidelity M. L. Ass'n v. Winn, 96 Tenn. 224, 33
S. W. 1045 ; 1896, Mutual Life I. Co. v. Selby,
19 C. C. A. 331, 72 Fed. 980 ; 1903, Connecti-
cut M. L. Ins. Co. V. Hillmon, 188 U. S. 208,
23 Sup. 294; 1895, Thomas v. Grand Lodge, 12
"Wash. 500, 41 Pac. 882 ; 1885, Schwarzbach v.
Ohio V. P. Union, 25 W. Va. 622, 646 ; 1899,
McGowan v. Supreme Court, 104 Wis. 173, 80
N. W. 603 ; 1902, Rawson v. Ins. Co., 115 id.
641, 92 N. W. 378.
T 1812, Bell V. Ansley, 16 East 141, 143
(joint obligees of an insurance policy).
' 1824, Osgood V. Manhattan Co., 3 Cow.
612, 622 ; 1825, Dan u. Brown, 4 id. 483, 492.
In St. Louis 0. H. & C. R. Co. v. Fowler, 142 Mo.
670, 44 S. W. 771 (1898), a co-tenant's admis-
sions, as co-plaintiff, were received on the facts.
' 1800, Davies ». Ridge, 3 Esp. 101.
1° 1868, Shailer ». Bumstead, 99 Mass. 112,
127 ("Devisees or legatees have not that joint
interest in the will which will make the admis-
sions of one, though he be a party appellant or
appellee from the decree of the pi'obate court
allowing the will, admissible against the other
legatees ; . . . such statements are only admis-
sible when they are made durisg the prosecution
of the joint enterprise,'' i. e. on the theory of
conspii'acy).
"■ 1893, Livingston's Appeal, 63 Conn. 68,
26 Atl. 470 ; 1902, Cai-penter's Appeal, 74 id.
431, 51 Atl. 126 ; 1898, Roller v. Kling, 150
Ind. 159, 49 N. E. 948 ; 1901, Hertrich v. Her-
trich, 114 la. 643, 87 N. W. 689 ; 1820, Walk-
up V. Pratt, 5 H. & J. 51, 57 ; 1900, Schierbaum
V. Schemme, 157 Mo. 1, 12, 57 S. W. 526 ; 1901,
Wood V. Carpenter, 166 id. 465, 66 S. W. 173 ;
1901, StuU V. Stull, — Nebr. — , 96 N. W.
196 (declarations of an executor not sole legatee,
excluded) ; 1901, Kennedy's Will, 167 N. Y.
163, 60 N. E. 442 (admissions of one heir not
receivable in a will contest, since they are not
admissible against the other heirs and there can
be but one decree).
" 1898, Embers v. Egbers, 177 HI. 82, 52 N. E.
285 (it had been left undecided in Mueller v.
Rebhan, 1879, 94 id. 142, 148) ; 1902, Lundy
V. Lundy, 118 la. 445, 92 N. W. 39 (admissions
nf o "principal beneficiary," received) ; 1841,
of a
128S
Beall V. Cunningham, 1 B. Monr. 399 (lucid
opinion by Roberson, C. J. ) ; 1902, Gibson v.
Sutton, — Ky. — , 70 S. W. 188 (following
Beall V. Cunningham) ; 1902, Wood ». Zibble,
— Mich. — , 92 N. W. 348 (admissions of the
wife-proponent, received). Compare the follow-
ing : 1902, Robinson d. Robinson, 203 Pa. 400,
53 Atl. 253 (legatee's statements, not offered as
admissions of incapacity, received ; prior cases
distinguished).
1' 1792, Jones ». Turherville, 2 Ves. Jr. 11.
§§ 1048-1087] PRIVIES IN TITLE. § 1082
(3) The estate of an insolvent or bankrupt passes to an assignee as the
debtor's successor ; and it has always been conceded that the debtor's admis-
sions, while his estate was in him, are receivable against the assignee;^*
whether the date of divestiture should be taken to be that of the act of bank-
ruptcy or that of the appointment of an assignee was at one time a matter of
doubt.^* Where there is no general assignment, but merely a levy by an
individual execution creditor upon the estate of the debtor, the creditor still
is seeking merely to acquire the title of the debtor, and in claiming under
him would be affected by his admissions prior to the levy ; and this is gen-
erally conceded.i^ But this merely evidential use of admissions must be
distinguished from the doctrine of estoppel; a creditor is of course not
" bound " (for example, by recitals of consideration or the like), in the sense
that he may not dispute the truth of the debtor's assertions."
§ 1082. Grantor, Vendor, Assignor, Indorser ; (1) Admissions before Trans-
fer ; (a) Realty ; Admissions against Documentary Title ; Transfers in Fraud
of Creditors. By the general principle (examined ante, § 1080) the state-
ments of a grantor of realty, made while title was by hypothesis still in
him, are receivable as admissions against any grantee claiming under him.
The history and slow development of this principle have already been no-
ticed {ante, § 1080). It is sufficient here to say that the principle is to-day
fully and universally conceded, subject only to a modification due merely to
its conflict with another principle :
1843, Walworth, C, in Padgett v. Lawrence, 10 Paige 170, 180 : "Asa general rule,
declarations made by a person in possession of real estate as to his interest or title in the
property, may be given in evidence against those who derive title under him, in the same
manner as they could have been used against the party himself if he had not parted with
his possession or interest ; on the other hand, it is equally well settled that no declara-
tions of a former owner of the property, made after he had parted with his interest therein,
or which are overreached by the purchase of the party claiming through or under him,
can be received in evidence to afEect the legal or equitable title to the premises." ^
" 1794, Bateman v. Bailey, 5 T. R. 512 ; " 1893, Milburn «. Phillips, 136 Ind. 680,
1847, Ramabottora v. Phelps, 18 Conn. 278, 283 695, 34 N. E. 983, 36 N. E. 360.
("Debts against an assigned estate stand on the ^ The precedents are as follows, and should
same footing as debts against a deceased person be read in the light of the remaining remarks of
whose estate Is represented insolvent ; and the the text of § 1082 ; where not otherwise noted,
admissions of the insolvent debtors are admis- the admissions were received without qualifica-
sible for the same reason that the admissions of tion : England: 1697, Sussex v. Temple, 1 Ld.
a deceased person, made while living, are admis- Raym. 310 (answer in chancery) ; 1704, Ford v,
sible for the purpose of charging bis estate ") ; Grey, 1 Salk. 286, 6 Mod. 44 (deed-recitals ; see
1846, Compton v. Fleming, 8 Blackf. 153; and the quotation from this case, post, § 1256);
many CAses passim, §§ 1082-1086, post ; so also, 1812, Dartmouth v. Roberts, 16 East 334, 339
by exception, in New York ; § 1083, par. 3, post. (answer in chancery by a co-defen<lant L. in a
Contra: 1894, Bicknell «. Mellett, 160 Mass. former suit on the same issue of tithes, admitted ;
328, 35 N. E. 1130 (debtor's admissions of receipt "the defendant stood in the same place by
of full consideration for a mortgage, not received derivation of title and by legal obligation as L. ,
against the assignee for the mor^agee). and L. upon his oath in a suit against him by
1' 1824, Smallcombe v. Bruges, 13 Price 136, the vicar has declared that the tithe is due to the
150 (excluding all admissions after the act of rector and not to the vicar, and now that same
bankruptcy, and not only after the date of the person, in effect, is deraigning the title of the
commission). rector in favor of the vicar ; the reading of his
" Post, § 1086, par. (6), and cases passim in answer therefore operates as a contradiction to
§§ 1082-1086. him ") ; 1818, DeWhelpdale v. Milburn, 5 Price
1289
1082 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
(1) It is to be noted that, upon this principle, statements made hefore.
485, 488 (answer in chancery by a former dean
and chapter) ; 1829, Madison v. Nuttall, 6
Bing. 226 (a former rector's written register of
tithes, received " as an admission by a preceding
rector"); 1832, Doe v. Austin, 9 id. 41, 45
(admissions of the predecessor under whom de-
fendant claimed, received against him) ; 1834,
Doe «. Cole, 6 C. & P. 359, 361 (similar ruling to
Madison u. Uuttall) ; 1834, Woolway v. Rowe,
1 A. & E. 114 (former proprietor's disclaimer of
a right of inclosure, admitted) ; 1834, Doe v.
Seaton, 2 id. 171, 179 ; Canada: 1846, Payson
V. Good, 3 Kerr N. Br. 272, 279 ; 1873, NUes v.
Burke, 14 If. Br. 237 (boundaries); 1874,
Hamilton </. Holder, 15 id. 222, 225 (but
they were excluded in Carter v. Saunders, 1864,
6 All. 147, 150); California: C. C. P. 1872,
§ 1849 (" Where, however, one derives title to
real property from another, the declaration, act,
or admission of the latter, while holding the
title, in relation to the property, is evidence
against the former") ; 1852, Kilburn w. Ritchie,
2 Cal. 145, 148, simile; 1859, Stanley v. Green,
12 id. 148, 163 ("It mattei's not whether the
declarations relate to the limits of the party's
own premises, or the extent of his neighbor's, or
to the boundary line between them, or to the
nature of the title he asserts ") ; 1867, Bollo v.
Navarro, 33 id. 459, 466 ; 1877, McFadden v.
EUmaker, 52 id. 348 ; 1882, People b. Blake,
60 id. 497, 503, 511 ; 1898, Williams v. Harter,
121 id. 47, 53 Pac. 405 ; 1902, Harp v. Harp,
136 id. 421, 69 Pac. 28 ; Conn^cticitt (compare
the historical summary ante, § lOSO) : 1805,
Nichols B. Hotchkiss, 2 Day 121, 126 (excluded,
because the grantors were neither dead nor dis-
qualified by interest) ; 1815, Barrett v. French,
1 Conn. 354, 365 (heirs claiming to set aside an
ancestress' deed for nndue infinence ; "it has
been uniformly decided that the declarations of
the grantor, when the grantee is not present,
prior or subsequent to the execution," are in-
admissible) ; 1818, Beers b. Hawley, 2 id. 467,
471 (grantor's declaration .is to time of a deed's
delivery, made before his transfer, admitted
against the grantees "who claim under him ";
preceding eases ignored) ; 1826, Clark v. Beach,
6 id. 142, 149 (question not decided) ; 1829,
Norton b. Pettibone, 7 id. 319, 323 (declaration
by defendant's ancestor's grantor that he had
taken his deed in fraud of his own grantor's
creditors, admitted against defendant ; Beers u.
Hawley confirmed ; Barrett b. French by im-
plication repudiated on this point) ; 1833, Fitch
V. Chapman, 10 id. 8, 1 2 (declarations of a mort-
gagor, who had bought in his land with money
of the defendant, that he had bought for the de-
fendant, not admitted against the plaintiff, a
creditor of the mortgagor, because the latter was
still competent as a witness ; Norton w. Petti-
bone and Beers v. Hawley di.stinguished on this
ground) ; 1837, Deming v. Carrington, 12 id.
1, 4 (issue as to a boundary ; declarations of
C, under whom defendant claimed, admitted
against defendant, though C. was alive and qual-
ified ; distinction made in Fitch v. Chapman
1290
repudiated; "where such identity exists, they
are admissible, altbongh the person making
them is alive and competent to testify ") ; 1845,
Smith I). Martin, 17 id. 399, 401 (preceding rule
approved ; " it seems to be perfectly well settled
in this State ") ; 1847, Ramsbottom o. Phelps,
18 id. 278, 285 (same) ; 1901, Hamilton v.
Smith, 74 Conn. 374, 50 .Atl. 884 (Deming
V. Carrington followed) ; Illinais: 1899, Gage
V. Eddy, 179 111. 492, 63 N. E. 1008 (admitted ;
this ought to discredit Hart v. Randolph, 142
id. 521, 525, 32 N. E. 517, where the contrary
statement was obiter made) ; Indian Terr. :
1896, McCurtain v. Grady, 1 Ind. T. 107, 38
S. W. 65 ; Iowa: 1876, Hurley v. Osier, 44 la.
642, 644; Maine: 1839, Crane ». Marshall, 16
Me. 27, 29 ; 1861, Peabody v. Hewett, 52 id.
33, 45; Maryland: 1813, Dorsey v. Dorsey, 3
H. & J. 410, 420, 426 ; 1826, Coale v. Harring-
ton, 7 id. 147, 156 ; 18il, Clary b. Grunes, 12
G. & J. 31, 35 ; Massachusetts : 1825, Davis v.
Spooner, 3 Pick. 284, 288 (plaintiff and de-
fendant claimed under deeds from A.; the plain-
tiff's deed being prior but unrecorded, A.'s
admissions, made prior to the second deed, that
the first existed, were received against the de-
fendant, " considering that the defendant knew
of the conveyance"; purporting to follow
Bridge V. Eggleston, post) ; 1841, Proprietors v.
Bullard, 2 Mete. 363, 368 (admissions of prede-
cessor, while owner, received); 1861, Blake v.
Everett, 1 All. 248, 249 (similar) ; 1867, Morri-
son B. Chapin, 97 Mass. 72, 77 (similar);
Michigan: 1878, Cook b. Knowles, 38 Mich.
316 (grantor's admissions that his deed was
falsely antedated, received ; Cooley, J., diss.,
on the principle of § 1256, post) ; 1891 , Merritt
■;. Stebbins, 86 id. 342, 48 N. W. 1084 (grantor's
statements, excluded ; obscure opinion) ; Mis-
souri: 1891, Meier v. Meier, 105 Mo. 411, 422,
430, 16 S. W. 223 ; 1898, Boynton v. Miller,
144 id. 681, 46 S. W. 754; Nebraska: 1892,
Cunningham v. Fuller, 35 Nebr. 58, 60, 52
N. W. 836: New Hampshire: 1821, Adams v.
French, 2 N. H. 387 (admissions by the de-
fendant's grantor, in a judgment obtained by
the plaintiff, received against the defendant) ;
1826, Downs v. Lyman, 3 id. 486, 4S7 ("dec-
larations of a person in possession of land, as to
the nature of his posses.sion," admissible against
"all persons claiming under him"); 1844,
Smith B. Powers, 15 id. 546, 563 ; 1858, Fellows
V. Fellow.s, 37 id. 75, 84 (oral admissions as to
non-title, held receivable) ; 1859, Little w.
Gibson, 39 id. 505, 511 ; 1860, Hurlburt b.
Wheeler, 40 id. 73, 76 (same); New Jersey:
1810, Townsend v. Johnson, 2 Penningt. 705
(de:'.larations of defendant's predeces.sor, as to a
boundary line, admitted against him); 1887,
Miller v. Feenane, 50 N. J. L. 32, 11 Atl. 136 ;
Neio York: 1809, Jack.son o. Bard, 4 John.
230 ; 1813, Jackson v. McCall, 10 id. 377 ;
1837, Varick v. Briggs, 6 Paige 323, 327 ; 1840,
Luce V. Carley, 24 Wend. 451, 455 ; 1843, Padg-
ett u. Lawrence, 10 Paige 170, 180 (see quota-
tion supra) ; 1867, Vroomau t>. King, 36 N. Y„
§§ 1048-1087]
PRIVIES m TITLE; GEANTORS.
§ 1082
title accrued in the declarant will not be receivable.^ On tbe other hand,
the time of divestiture, after which no statements could be treated as admis-
sions, is the time when the party against whom they are offered has by his
own hypothesis acquired the title; thus, in a suit, for example, between A's
heir and A's grantee, A's statements at any time before his death are receiv-
able against the heir ; but only his statements before the grant are receivable
against the grantee.*^
(2) The death of the declarant need of course not be shown (ante, § 1049) ;
with admissions, that circumstance is immaterial, for a grantor's as well as
for those of the party himself. But if the grantor is deceased, the statement
may thus become also admissible under the Hearsay exception {post, § 1458)
for statements of facts against proprietary interest ; and under this exception
they are admissible for either party.*
(3) The principle requiring the production of documentary originals has
sometimes been thought to override the principle of admissions, so as to pre-
clude the use of a party's admissions to evidence the contents of a document
until the loss of the document is first shown (post, § 1255). This doctrine
477, 483; 1877, Chadwick v. Fonner, 69 id.
404, 407 ; Nort,h Carolina: 1803, Clark v.
Arnold, 2 Hayw. 287 (declaration.s of the de-
fendant's vendor, that he had not paid the pur-
chase-money, not admitted against the defendant ;
but the Eeporter, respectfully explaining this as
an eiTor in " the hurry of business," maintains
the ruling wrong, as " too clear to need much
ilhistration ; . . . I cannot agree to disseminate
wrong legal opinions out of respect to the oninion
of any one"): 1819, Guy v. Hall, 3 Murph.
150 (grantor's declarations, admitting a prior
sale, received against the later grantee ; see
quotation supra, § 1080); 1833, Hoyatt v.
Phifer, 4 Dev. 273 (recitals in a deed, admissible
against those claiming under it) ; 1838, May i;.
Gentry, 4 Dev. & B. 117, 119 (principle ap-
plied) ; 1852, Satterwhite v. Hicks, Busbee L.
105 (admissions of a debtor-grantor, that he was
not indebted to the grantee, admitted against
the latter on a creditor's behalf) ; 1902, Katliff
V. Ratliff, 131 N. C. 425, 42 S. E. 887 (grantor's
statements before transfer, admitted) ; Pennsyl-
vania: 1782, Morris v. Vanderen, 1 Dall. 64,
65 (letters of one P., admitted, since the de-
fendant w.is lessee of P.'s heirs ; the objection
overruled was that "the defendant is not to be
affected by the conduct of a third person ") ;
1810, Bonnet v. Devebaugh, 3 Binn. 175, 179
(deed-recitals ; "no point of law is bett(M- estab-
lished ") ; 1818, Diggs v. Downing, 4 S & K.
347, 352 (deed-recital) ; 1818, Weidirian v.
Kohr, 4 S. & R. 174 ("the privity between that
party and the plaintiff renders his confessions
evidence against the plaintiff" ; here, oral dec-
larations as to the scope of a land-warrant) ;
1832, Gibblehouse v. Stong, 3 Rawle 436, 442
(declarations as to holding in trust, admitted ;
Huston, J., diss, on the principle of § 1256) ;
1832, Keed o. Dickey, 1 Watts 152, 154; South
Carolina: 1898, Levi ». Gardner, 53 S. C. 24,
30 S. E. 617 (admissible to show the character
-19
1291
of his possession); United States : 1830, Carver
V. Jackson, 4 Pet. 1, 83 (deed-recitals, admitted ;
see citation post, § 1256) ; 1876, Dodge v.
Freedman's S. & T. Co., 93 U. S. 379, 383 (ad-
missible, but "only to show the character of the
possession" and "by what title he holds";
opinion confused ; see post, § 1256) ; 1879,
Baker v. Humj)hrey, 101 id. 494 (admissions of
grantee as to the object of the conveyance to
defeat creditors, received); 1897, Henderson v.
AVanamaker, 25 C. C. A. 181, 79 Fed. 736;
Utah: 1902, Church of Jesus Christ v. Wat.son,
25 Utah 45, 69 Pac. 531 ; Vermont: 1841, Car-
penter V. HoUister, 13 Vt. 552, 655 (grantor's
admissions as to extent of possession, receivable ;
see post, § 1266) ; 1842, Hines v. Soule, 14 Vt.
99, 105 (Carpenter v. Hollister approved); Vir-
ginia: 1800, Walthol V. Johnson, 2 Call 275
(mortgagee's admissions received against the
buyer on foreclosure) ; 1895, Reusens v. Ijawson,
91 Va. 226, 21 S. E. 347 (boundaries) ; 1895, Fry
V. Stowers, 92 id. 13, 22 S. E. 600 (boundaries) ;
Wisconsin : 1866, Kelley v. Kelley, 20 Wis. 443,
446 ; 1901, Kreckeberg v. Leslie, 111 id. 462,
87 N. W. 450 ("declarations characterizing or
de6ning his possession and claim," admis.sible).
2 1857, Tyler v. Mather, 9 Gray 177, 185 ;
1871, Noyes v. Merrill, 108 Mass. 396, 399 ;
1880, Stockwell v. Blarney, 129 id. 312; 1872,
BuUis V. Montgomery, 50 N. Y. 352, 358 ;
1885, Hutchins v. Hutchins, 98 id. 56, 64.
3 1885, Davis v. Melson, 66 la. 715, 24 N. W.
526. So also the following instance: 1828,
Foi-syth V. Kreakbaum, 7 T. B. Monr. 97, 100
(father's gift to a child, followed by his sale to
another ; father's declarations before the sale,
admitted against the vendee).
* E. g. : 1895, Reusens v. Lawson, 91 Va.
226, 21 S. E. 347 (deed established for plaintiff
by statements against interest of a deceased
prior grantor of plaintiff in a suit between the
grantor and his grantee).
§ 1082 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
in its present application would forbid the use of a grantor's admissions of
lack of title whenever the party claiming under him had proved a document-
ary title in his grantor, because the admission would in effect be that some
other document divesting that title had existed ; and the offeror of the ad-
mission, in order to use it, must therefore apply it to some specific deed and
prove that deed to be lost. Such is the doctrine that was finally worked out
in New York, in a series of confusing rulings often cited elsewhere in frag-
ments (jpost, § 1256). This doctrine, however, still permits the free use of
a grantor's admissions either when the title derived from him purports to
rest on adverse possession only, or when the admissions concern, not the
documentary title, but only the extent of occupied boundaries or some other
feature of possession. Thus in some jurisdictions it is common to state the
general principle of admissions in a limited form, namely, to be receivable so
far as they concern the character or extent of the grantor's possession. This
peculiar form is due chiefly to the foregoing doctrine, and also in part to the
early traditional confusion (explained ante, § 1080) between a grantor's ad-
missions and verbal acts of disclaim coloring a prescriptive possession. But,
on the whole, this modified form seems merely fitted to confuse, and can
hardly be said to be worthy of sanction. It has now become something
more than a local rule of New York ; but it has not been widely accepted.*
(4) la Massachusetts, at an early date, when the theory of predecessors'
admissions was as yet everywhere inchoate in conception {ante, § 1080), its
results were reached, in a special class of cases — namely, sales in fraud of
creditors — on a different theory; the debtor's declarations before the sale
were received as evidence of intetit, being a'dmissible either as circumstantial
evidence {ante, §§ 242, 266) or as exceptions to the Hearsay rule {jpost,
§ 1729). This theory, sound enough in its application to that specific situa-
tion, was plainly enunciated in Bridge v. Eggleston, a ruling which had a
great vogue and has since served as a precedent in other jurisdictions.* It
' In the foregoing collection of citations, in knowledge ") ; 1823, Cook v. Swan, 5 Conn,
note 1, its effect is briefly noted where it is 140, 145, 149 (realty; debtor's prior declara-
recognized ; but the rulings which recognize it tions, claiming a debt to the grantee, admitted
are collected and more fully stated ^osi, §§ 1255- for the grantee as " part of the res gesta," citing
1257, in dealing with the rule for proof of docn- Bridge v. Eggleston, Mass.) ; 1840, Pettibone v.
ments. It may be assumed not to be law in Phelpss, 13 id. 445, 450 (similar) ; IlUnois:
jurisdictions where it has not been expressly 1850, Prior v. White, 12 111. 261, 264 (peraon-
adopted, as shown in those citations ; but only alty ; mortgagor's declaration of intent, excluded
a few jurisdictions have expressly rejected it. unless knowledge of them prior to the mortgage
« Many of the following cases apply the doc- is brought home to the mortgagee, " as tending
trine to personalty: Canada: 1857, Doe v. to show his participation in the fraudulent
Fraser, 3 All. N. Br. 417 (defendant's father's scheme"; Bridgeti. Eggleston, Mass., approved);
declarations, not received to show the indebted- Mabie: 1854, FLsher v. True, 38 Me. 534, 536
ness or intent, unless made at or about the time (personalty ; debtor's declarations admitted on
of the deed); California: 1857, Landecker w. the theory of Bridge v. E^leston, Ma-ss.) :
Houghtaling, 7 Cal. 391 (personalty ; doctrine Massachmetts : 1815, Clarke wTwaite, 12 Mass."
of Bridge v. Eggleston, Mass., approved) ; 1857, 439 (realty ; debtor's statements excluded, with-
Tisher v. Webster, 8 id. 109, 113 (preceding case out discrimination as to the time of their
approved); Connecticut: 1810, Beach v. Catlin, utterance); 1817, Bridge v. Eggleston, 14 id.
4 Day 284, 292 (realty ; debtor's prior declara- 245, 250 (realty ; debtor's declarations admitted)
tions of fraudulent intent, excluded, " for the provided by other evidence the grantee's knowl-
grantee ought not to be affected by the declara- edge of the fraud is shown ; Clarke v. Waite in
tions of the grantor, unless they came to his this light explained ; the opinion, however
1292
§§ 1048-1087] PRIVIES IN TITLE; GEANTORS.
§ 1083
is not to be found fault with, provided it does not cause us to ignore the
principle of a"dmissions, which equally serves for the same class of cases and
additionally covers a more extended scope.
§ 1083. Same: (6) Personalty; New York Rule. There is no reason
why the general principle {ante, § 1080) of transferrors' admissions should
not apply as well to the admissions of the vendor and assignor of person-
alty as to those of the grantor of realty. Indeed, the objection, already
noticed {ante, § 1082, par. 3), due to the supposed infringement of the prin-
ciple of producing documentary originals, here falls away in substance. Nor
has any reason of policy ever been advanced against the use of vendors' ad-
missions which did not equally attack the whole principle of transferrors'
admissions ; and Senator Lott, in the controlling opinion in Paige v. Cagwin,^
expressly conceded that his opposition rested on those broad grounds and
would have effected a total exclusion if precedent had permitted.
(1) Accordingly, the English Courts, and most American Courts, apply the
principle consistently, and receive without question all admissions by the
vendor of personalty made while title was in him.^
(2) In a few Courts, the early Massachusetts doctrine of Bridge v. Eggleston
{ante, § 1082, par. 4) is applied to admit a debtor's declaration before his sale
of personalty, on an issue of fraud against his creditors.^
does not treat the grantor's declarations as ad-
missions at all, but as evidence of a frandulent
intent, under the principles of § 1729, post, and
§ 266, ante) ; 1831, Foster v. Hall, 12 Pick. 89,
99 (realty ; Bridge v. Kggleston approved) ;
1867, Winchesters. Charter, 97 Mass. UO, 143
(realty) ; New Hampshire: 1842, Blake ». White,
13 N. H. 267, 273 (debtor's declarations, held
admissible, on the theory of Bridge v. Eggle-
ston) ; Oregon: 1902, Beers v. Aylsworth, 41 Or.
2.51, 69 Pac. 1025 ; 1902, Robson v. Hamilton,
ib. — , 69 Pac. 651 ; Washington : 1892,
O'Hare ». Duckworth, 4 "Wash. 469, 474
(debtor's declarations admitted ; citing Bridge v.
Eggleston) ; JVisconsin : 1860, Gillet v. Phelps,
12 ' Wis. 437, 439, 446 (debtor's declarations, at
the time of the sale, admitted to show his fraud-
ulent intent) ; 1861, Bates v. Ableraan, 13 id.
644, 650 (same principle sanctioned) ; 1861,
Bogert V. Phelps, 14 id. 81, 95 (same).
Upon this question of evidencing fraudulent
intent, another sort of evidence (frequently
dealt with in the same rulings) must be distin-
guished, namely, other frauchilent sales by the
debtor at the same time ; this has been already
treated in considering circumstantial evidence
(ante, § 333). One question of substantive law
also usually arises in such cases, and must be
distinguished from these evidential questions, —
whether the knowledge by the creditor of the
debtor's fraudulent intent is essential to avoid-
ing the sale ; an example may be seen in Foster
V. Hall, 12 Pick. 89.
•■ New York, infra.
» England: 1808, Ivat v. Finch, 1 Taunt.
141 (trespass for taking three mares, the defend-
ant justifying as lord of the manor ; the prior
tenant's admissions that she had given the stock
to the plaintiff, received, "because the right of
the lord of the manor depended upon her title ") ;
United Stales : Ala.: 1854, Jennings u. Blocker,
25 Ala. 415, 422 ; 1856, Fralick v. Presley, 29
id. 457, 462 ; 1857, Cole v. Varner, 31 id. 244,
250 ; 1862, Arthur v. Gayle, 38 id. 259, 267 ;
III. : 1869, Eandegger v. Ehrhardt, 51 111. 101,
103 ; Ind. : 1858, King v. Wilkins, 11 Ind. 346 ;
1862, Boone Co. Bank v. Wallace, 18 id. 82, 85 ;
1862, Bunberry v. Brett, ib. 343 ; 1875, Camp-
bell V. Coon, 51 id. 76, 78 (the foregoing cases
in effect overrule the early case of Ashley ii.
West, 3 Ind. 170, 172); la.: 1877, Moss v.
Dearing, 45 la. 530, 532 (grantor's admissions
of a debt to grantee, receivable against other
creditors) ; 1897, Thomas v. McDonald, 102 id.
564, 71 N. W. 572 (vendor's admissions as to
fraudulent intent, received); ICy.: 1828, For-
syth V. Kreakbaum, 7 T. B. Monr. 97, 100 ;
Me. : 1833, Hatch v. Dennis, 1 Fairf. 244 j
1836, Greene v. Harriman, 14 Me. 32 (anomalous ;
vendor's admissions as to payment, excluded) ;
1846, Holt V. Walker, 26 id. 107 ; 1855, Mc-
Lanathan v. Patten, 39 id. 142; Md. : 1830,
Stockett V. Watkins, 2 G. & J. 326, 343, semhle
(l?ut here a widow's admissions were held not
receivable against her executor who claimed as
her husband's administrator d. b. n.) ; Pa. :
1826, Kellogg v. Krauser, 14 S. & R. 137, 141
(judgment) ; 1870, Magee a. Maignel, 64 Pa.
110 ; U. S. : 1903, Fourth Nat'l Bank v. Al-
baugh, 188 U. S. 734, 23 Sup. 450. For Ver-
mont see infra, note 7.
' The precedents have been already noticed
in § 1082, par. 4.
1293
§ 1083
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
(3) In New York, after some vacillation, a rule of exclusion was finally-
settled upon for the admissions of a vendor of personalty when offered against
a, purchaser for value. In 1843, in Paige v. Cagwin, this doctrine received
the sanction of a majority of the Court, and has ever since maintained itself,
in spite of repeated attempts to pare it down.* The historical explanation of
Paige V. Cagwin has been already noticed (ante, § 1080). No useful policy
seems to support it ; and it has thus far remained a distinctly local rule.
The rule of Paige v. Cagwin is, however, held not to include in its scope the
statements of a bankrupt made before assignment.^ .Moreover, a successful
* 1806, Waring v. Warren, 1 John. 340 (ad-
missions of defendant's wife before marriage,
received to show title in plaintiff) ; 1814, Alex-
ander V. Mahon, 11 John. 185 (execution-cred-
itor claiming against distraining landlord ; the
debtor's admissions of the tenancy, excluded; "as
C. was a good and competent witness, the plain-
tiff in error cannot avail himself of his confes-
sions"; no authority cited); 18*27, Hnrd v.
West, 7 Cow. 753, 759 (admissions of defend-
ant's vendor, in possession of sheep before the
sale, that he was a mere bailee from the plain-
tiff, excluded ; where one is competent as a wit-
ness for the party, the latter cannot avail him-
self of the confessions of the former " ; citing the
preceding case ; Esek Cowen, Esq., afterwards
judge, approves the ruling in a reporter's note) ;
1828, Austin v. Sawyer, 9 id. 39 (sale of wheat ;
the vendor's admissions, before sale, that it be-
longed to the plaintiff, were received without
question ; the same reporter notes this as over-
ruling the preceding case); 1831, Kent t). Walton,
7 Wend. 256 (action by the second indorsee of
a renewal note against the maker ; the first in-
dorsee's admissions that the first note was usu-
rious, excluded ; no authority cited) ; 1832,
Whitaker v. Brown, 8 id. 490 (action by bearer
against the maker of a note to R. or bearer ; R. 's
admissions that "the defendant was not liable,"
excluded, following Hurd v. West, N. Y. , and
Duckham w. Wallis, Eng., post, §1084; repudiat-
ing Cowen's note to Austin v. Sasvyer) ; 1834,
Crary v. Sprague, 12 Wend. 41 (hides claimed by
the plaintiffs as vendees against parties concerned
in various executions against the vendor; to show
a fraudulent combination on the part of the de-
fendants' assignors of the judgment claims, the
assignors' declarations " while engaged in bring-
ing about the sale " were received as " giving
character to the transaction of sale ") ; 1834,
Bristol V. Dann, ib. 142 (action by the indorsee
against the maker of a partnersliip note ; the
payee's admissions that defendant was not a
member of the partnei-ship, excluded, following
Whitaker v. Brown ; " the rule seems to be that
a party who can call a witness shall not be per-
mitted to prove his declarations ; a former owner
of real estate, through whom the title has passed,
is said to be an exception") ; 1841, Beach v.
Wise, 1 Hill 612 (Kent v. Walton, Whitaker v.
Brown, Bristol v. I)ann, followed ; but the Court,
per Bronson, J., declares its dissatisfaction with
the distinction excluding the admissions of a
vendor of personalty ; the decease of the prede-
1294
cessor held to be immaterial) ; 1844, Stark v.
Boswell, 6 id. 405 (doctrine applied) ; 1843,
Paige V. Cagwin, 7 id. 361 (admissions by the
payee of a note, not received against a subse-
quent transferee for value after maturity ; rule
of exclnsion affirmed for transfers of personalty
in general, but confined to the case of a trans-
feree for value, and not applied to a "privy
by representation, as in cases of bankruptcy,
death, and other cases of a similar character" ;
the decision was rendered bv a majority of the
Court of Errors, 13 to 7) ;' 1847, Brisbane v.
Pratt, 4 Denio 63 (preceding rule approved, but
here not applied, the plaintiff not being a holder
for value) ; 1852, Jermain w. Denniston, 6N. Y.
276 (Paige v. Cagwin recognized, but held not to
apply to a bank's admission, by pass-book en-
try, made while holding a note, that it had
been paid ; the rule is inapplicable where "the
previous holder, while he owned the note, put
into the hands of the maker, in the usual
course of business, written evidence of its pay-
ment and discharge"); 1853, Booth v. Swezey,
8 id. 276, 280 (Paige v. Cagwin approved, but
said obiter not to apply to "a written receipt
or discharge of debt which had been a.ssigned by
a former holder," because that would be "an
act of the parties," and not a " mere conversa-
tion or ex parte admission") ; 1854, Brown v.
Mailler, 12 id. 118 (Paige v. Cagwin recognized) ;
1858, Tousley v. Barry, 16 id. 497, 500 (Booth
V. Swezey followed) ; 1860, Foster v. Beals, 21
1(1. 247 (mortgagee's written receipt for part pay-
ment of a bond and mortgage, not received
against the assignee in good faith for value ;
Jermain v. Denniston distinguished, and the
obiter dictum in Booth v. Swezey disapproved ;
Comstock, C. J., diss.) ; 1877, Chadwick v.
Fonner, 69 id. 404, 407 (Paige v. Cagwin ap-
proved) ; 1878, Von Sachs v. Kretz, 72 id. 548,
554 (Paige v. Cagwin approved) ; 1879, Foote
V. Beecher, 78 id. 155, 157 (mortgagor's admis-
sions of non-payment of a note, not received
against u subsequent assignee of the equity) ;
1881, Truax v. Slater, 86 id. 630, 632 (declara-
tions of the assignor of a chose in action, held
inadmissible) ; 1900, Merkle v. Beidleman, 165
id. 21, 58 N. E. 757 (rule of exclusion applied to
a mortgagee's declarations; "the case of Paige
D. Cagwin practically closed the judicial discus-
sion in this State," — an odd remark, in view
of the rulings that occurred since the discussion
was "closed").
° 1843, Paige v. Cagwin, supra; 1878, Von
§§1048-1087] PRIVIES IN TITLE; GRANTORS. §1084
attempt to evade it seems to have been made for the admissions of a vendor
offered against his vendee on an issue charging a sale in fraud of creditors.^
In Vermont, just before the ruling in Paige v. Cagwin, the same result had
been reached ; ^ but the anomaly was soon repudiated.*
§ 1084. Same: (c) Negotiable Instruments. The holder of a negotiable
instrument receives it from a prior holder free of equities and other defences
personal to the prior holder ; in this lies the element of negotiability. Con-
sequently, the second holder's title is not identical with and dependent upon
that of the iirst holder; and the admissions of the latter would (on the
priuelple of § 1080), not be receivable against the former. But wherever
the element of negotiability is wanting — as where the transfer is made
after maturity — , this distinction ceases ; idfentity of title is found ; and
the admissions are receivable:
1843, Messi-s. Cowen and Hill, in Notes to Phillipps on Evidence, No. 481, p. 668 :
" The distinction that although the party, who acquires a bill or note by endorsement,
delivery or otherwise, after it is due or dishonored, or with notice er without considerar
tion, or in any other manner which deprives him of the character of a iona fide holder,
is so far identified with the previous owner, that Ms declarations, while owner, may be
received against such party ; yet, that where the latter is a bona fide holder in the course
of trade, he cannot be touched byi such declarations, not only harmonizes with various
other legal consequences growing out of that character, but the cases all speak directly
and uniformly upon this branct of hearsay evidence. The principle is, that the honafide.
holder is not a mere privy in title or estate with the preceding owner, except with regard
to certain grounds of defence, wtiich we have noticed. Among them are usury or gaming,
or the like vice, which nullifies the bill or note absolutely in the hands of the holder,
whether honafide or mala fide; even this is now qualified by statute in several countries.
. . . But in other cases, the honafide holder, by his purchase of the bill or note, stands,
in a great measure, independent of the former holder who endorsed or delivered the paper
to him. The law disconnects him with the previous title, and takes him into its own
Sachs V. Kretz, 72 N. Y. 548, 654 (bankrupt's against them, they could not have been excluded
admissions of a set-off, made before the assign- hy the Court"). Yet it must be remembered
ment, admitted against the assignee; "the that both the first and the last of the above
qualification found in Paige ». Cagwin that the cases are still cited as law in later rulings
vendee or assignee must be a purchaser for dealing with a related question impost, § 1086).
value in order to make the declaration inadmis- ' 1842, Hines v. Soule, 14 Vt. 99, 106 (ex-
sihle, is an essential part of the rule ; . . . the eluded, on the theory that "if a person is still
assignee in bankruptcy is not a purchaser for living and can be a witness, he must be called,
value " ; repudiating the contrary obiter dictum and that his admissions are not evidence against
in Bullis v. Montgomery, 50 id. 352, 359, that his vendee or successor"; Bennett, J., diss.);
"there is no such identity of interest between 1845, Ellis v. Howard, 17 id. 330, 335 (preced-
an insolvent assignor in trust for creditors and ing case approved).
his assignee "). Compare the cases cited ante, ' 1853, Read v. Rice, 25 "Vt. 177 (in a note,
§ 1081. C. J. Eedfield repudiated the reason given for
6 1869, Cuyler v. McCartney, 40 N. Y. 221, the ruling in Hines v. Soule) ; 1856, Hay ward
226 (personalty ; excluded ; "It will not do to Eubber Co. v. Duncklee, 30 id. 29, 39 (Hines v.
say that testimony to the assignor's admissions Soule "has heretofore been considerably iui-
is competent evidence against him; . . . evi- pngned"; "admissions made by the assignor
dence good as against the assignor only does not of a chattel or personal contract prior to the
contribute in any way to defeat their [the assignment " are receivable against an assignee
assignees'] title " ; here they had taken posses- taking by that title) ; 1874, Downs v. Belden,
sion) ; 1876, Stowell v. Hazelett, 66 id. 625 (per- 46 id. 674, 677 (preceding case approved) ; 1875,
sonalty ; debtor's declarations admitted against Alger i>. Andrews, 47 id. 238, 241 (expressly an-
liimself) ; 1888, Loos v. Wilkinson, 110 id. 195, nounces that the decision in Hines i;. Soule is
211, 18 N. E. 99 (assignor's declarations ad- overruled, "and for many years has not been
niitted ; "they were competent against the per- regarded by the bench and bar of this State as
sons making them, . . . and being competent declaring the true law of the subject ").
1295
§ 1084
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
charge, as deriving a right from itself. And hence, among other privileges, while it cuts
him clear of all the previous hostile acts of his predecessor, it forbids that his declarations
shall be used in derogation of those rights which he professed to confer."
This logical application of the theory of transferrors' admissions was finally
worked out in England, after some confusion of rulings, and since Barough
V. White has not been disputed.^ In the United States it would to-day
probably be everywhere recognized, except in New York.^
§ 1085. Same : (2) Admissions after Transfer ; Realty and Personalty, in
general. On the general principle {ante, § 1080), statements made by the
transferror of realty or of personalty, after transfer of title, are not receivable
as admissions against the transferee. This much is never disputed, in the
general application of the principle.^ There may, however, be other principles
1 Where not otherwise stated, the instrument
was not overdue when transferred: 1808, Kent
V. Lowen, 1 Camp. 177, L. C. J. Ellenborough
(usury ; letters of the payee, at the time of mak-
ing the note, admitted as "an act done by C. &
Co., who were the payees of the note and through
whom the plaintiff made title") ; 1824, Pocouk
V. Billing, Ry. & Mo. 127, 1 C. & P. 230, 2 IJing.
269, L. C. J. Best (declarations of a former
holder of a hill, if made while the holder, receiv-
able) ; 1824, Coster v. Symons, 1 C. & P. 148,
L. C. J. Abbott (declarations of the payee, ad-
mitting that the bill was discharged by a later
one, received, as "a declaration of the party
under whom the plaintiff claims title ") ; 1824,
Peckham v. Potter, 1 C. & P. 232, L. 0. J.
GifFord (payee's admissions of fraud in the con-
sideration, admitted) ; 1824, Shaw v. Broom, 4
Dowl. &, R. 730, K. B. (rule apparently conceded
that the transfer must have been after maturity
in order to make admissions receivable) ; 1825,
Barough v. White, 6 id. 379, 4 B. & C. 325,
K. B. (payee's declarations as to lack of consid-
eration for a note payable on demand, excluded,
unless the plaintiff "had been identified with
A., by showing that he had taken the note with-
out consideration, or after it was due " ; Pocock
■u. Billing ]iractically repudiated) ; 1825, Smith
V. DeWruitz, Ry. & Mo. 212, L. C. J. Abbott
(declarations held inadmissible ' ' against a holder
who had acquired the bill before it was due ") ;
1827, Hedger v. Horton, 3 C. & P. 179, Gaselee,
J. (payee's declarations excluded, but not on the
preceding principle); 1830, Beauchampw. Perry,
1 B. & Ad. 89 (rule of Barough v. White fol-
lowed) ; 1831, Haddan v. Mills, 4 id. 486, C. J.
Tindal (rule of Barough v. White followed) ;
1839, Phillips u. Cole, 10 A. & E. 106, 112
(same). The converse doctrine, that the admis-
sions would be excluded even if the transfer was
after maturity, appeared at an early stage : 1805,
Duckham v. Wallis, 5 Esp. 251, L. C. J. Ellen-
borough (admissions of payment, excluded ; " It
would be making the declarations of a third per-
son evidence to affect the plaintiff's title when
that person was not on the record ") ; but this
rested on the early ignorance of the theory of
admissions (as noted ante, § 1080), and was prac-
tically repudiated in the above line of rulings.
2 Oonn. : 1846, Roe v. Jerome, 18 Conn. 138,
151 ; 1847, Ramsbottom v. Phelps, ib. 278, 285 ;
m. : 1846, Williams v. Judy, 8 111. 282 (ad-
mitted ; here usurj' made the note void ; but it
had become due before assignment) ; Ind. : 1852,
Blount V. Riley, 3 Ind. 471 ; 1854, Abbott v.
Muir, 5 id. 444 (non-negotiable note) ; 1855,
Stoner v. Ellis, 6 id. 152, 153 (statutory defence);
Me. : 1832, Shirley v. Todd, 9 Greenl. 83 ; 1833,
Hatch V. Dennis, 1 Fairf. 244 (leading opinion ;
the chief argument opposed by counsel to the
decision was that the payee of a negotiable in-
strument was not a party to the record and there-
fore was a competent witness ; but the theory of
privity of title was held to be paramount to
this) ; 1852, Parker v. Marston, 34 id. 386 (un-
indorsed note) ; Mass. : 1833, Sylvester v. Crapo,
15 Pick. 92, 94 ; 1855, Bond v. Jfitzpatrick, 4
Gray. 89, 92; Okl. : 1898, Prick v. Reynolds, 6
Okl. 638, 52 Pac. 391 (indorser's declarations as
to unsoundness of horse for which note was given,
made before transfer, admitted against subse-
quent holder, if not bona fide) ; Vt. .- 1856, Mil-
ler V. Bingham, 29 Vt. 82, 88. Undecided:
1827, Ross V. Knight, 4 N. H. 236, 239 (citing
Pocock V. Billing). In New York, the exclusion-
ary rule of Paige v. Cagwin of course applies to
choses in action, includiiig overdue commercial
paper, as well as to other personalty ; the cases
are placed aiite, § 1083. "The Federal Supreme
Court has once recognized this anomalous rule :
1876, -Dodge v. Freedman's S. & T. Co., 93 U. S.
379, 383 (inadmissible ; following Paige v. Cag-
win ).
^ The cases collected ante, §§ 1082-1084,
almost all imply this result also : England :
1842, Lord Trimlestown v. Kemniis, 5 01. &
F. 749, 779 (abstract of title ; statements "after
be had parted with his interest," excluded) ;
Canada: 1876, Philps v. Trueman, 16 N. Br.
391 ; California: 1875, Tompkins v. Crane, 50
Cal. 478 ; 1S93, Old v. Ord, 99 id. 523, 525, 34
Pac. 83 ; 1901, Banning v. Marleau, 133 id. 485,
65 Pac. 964; Georgia: 1861, Howard w. Snclling,
32 Ga. 195, 203 ; 1875, Porter v. Allen, 54 id.
623 (even against a donee) ; 1891, Blalock v.
Miland, 87 id. 573, 13 S. E. 551 (similar) ; 1895,
Bowden v. Achor, 95 id. 243, 22 S. E. 271 ;
1896, Ogden v. Dodge Co., 97 id. 461, 25 S. E.
1296
§§ 1048-1087]
PEIVIES IN TITLE; GEANTOES.
1086
of evidence upon which such statements can be brought in ; these are pointed
out elsewhere {post, § 1087). Moreover, where the transfer is attacked as
being in fraud of creditors, a special application of the principle of admissions
may come into play ; but this, being complicated with other questions, must
now be examined separately.
§ 1086. Same : Transfers in Fraud of Creditors. Where the transfer is at-
tacked as voidable because of being made with the intent to defraud creditors,
a variety of special considerations become applicable ; and the efforts of the
Courts to solve this puzzling problem have naturally been attended with
some inconsistency and confusion. The source of it lies in the circumstance
that distinct principles of evidence may apply in certain conditions, and that
opposite results would be reached according to the principle invoked. At
the outset, the cases obviously must be separated in which the debtor-trans-
321 ; Illinois: 1854, Simpkins v. Rogers, 15 111.
397 ; 1866, Dunaway v. School Directors, 40 id.
247 ; 1869, Randegger v. Ehrhardt, 51 id. 101,
103 ; 1881, Bennett v. Stout, 98 id. 47, 51 ;
1884, Bentley v. O'Bryan, 111 id. 53, 62 ;
1892, Hart v. Randolph, 142 id. 521, 525, 32
N. E. 517 (even though while still in posses-
sion) ; 1893, Francis «. Wilkinson, 147 id. 370,
384, 35 N. E. 150 ; 1895, Miller v. Meers, 155
id. 284, 40 N. E. 577 ; 1897, Shea v. Murphy,
164 id. 614, 45 N. E. 1021 ; Indiana: 1837,
Doe V. Moore, 4 Blackf. 445 (even as against
judgment- vendee, after date of judginent-lien
acciuing) ; 1861, Kieth v. Kerr, 17 Ind. 284,
286 ; 1861, Wynne v. Glidewell, ib. 446, 448 ;
1874, Burkholder v. Casad, 47 id. 418, 421 ;
1875, Harness v. Harness, 49 id. 384 (even as
against the donee of an advancement ; Woolery
V. Woolery, 29 id. 249, and Hamlyn v, Nesbit,
37 id. 284", repudiated) ; 1875, Campbell v. Coon,
51 id. 76, 78 ; 1876, Gamer v. Graves, 54 id.
188, 192 ; 1882, Somers v. Somers, 85 id. 599 ;
1887, Joyce v. Hamilton, 111 id. 163, 167, 12
N. E. 294 ; 1895, Robbins v. Spencer, 140 id.
483, 40 N. E. 263; Iowa: 1868, O'Neil v.
Vanderbmg, 25 la. 104, 107; 1881, McCor-
raicks V. Fuller, 56 id. 43, 46, 8 N. W. 800 ;
1895, Neufifer v. Moehn, 96 id. 731, 65 N. W.
334 ; Kentucky : 1901, Fuqua v. Bogard, —
Ky. — , 62 S. W. 480; Louisiana: 1829,
Dismukes v. Mii.sgrove, 8 Mart. N. s. La. 375,
378 ; Maine: 1831, Hackett v. Martin, 8 Greenl.
77, 79 (commercial paper) ; Maryland: 1811,
Thomas v. Denning, 3 H. & J, 242 (assignor's
declarations after an alleged assignment of a
bond, received ; but apparently on the ground
that the assignment was not sufficiently evi-
denced) ; Massachusetts: 1808, Bartlett v. Del-
prat, 4 Mass. 702, 707 (father's declarations
denying a deed, not received against claimant
under the deed, in favorof devisees of the father);
1817, Bridge v. Eggleston, 14 id. 245, 250
("afterwards, he has no relation to the estate
he has conveyed"); Michigan: 1896, Vyn v.
Kcppel, 108 Mich. 244, 65 N. W. 966 ; Minne-
sota: 1895, Eurtz v. R. Co., 61 Minn. 18, 63
N. W. 1 ; Nebraska: 1895, Consolidated T. L.
Co. V. Pien, 44 Ncbr. 887, 62 N. W. 1112 ;
New Hampshire: 1825, Copp v. Uphani, 3
N. H. 159 (admissions of a mortgagor, after
assignment of his interest, not received for the
mortgagee against the a.ssignee ; but the present
principle is not invoked); New York: 1822,
Frear v. Evertson, 20 John. 142 (debt); 1867,
Vrooraan v. King, 36 N. Y. 477, 483 (the
offeror must show affii'matively that title was
still in the declarant) ; 1893, Jones v. Jones,
137 id. 610, 614, 33 N. E. 479 ; 1894, Holmes
V. Roper, 141 id. 64, 67, 36 N, E. 180 (note) ;
1902, Wangner v. Grimm, 169 id. 421, 62 N. E.
569 ; North Carolina: 1846, Ward v. Saunders,
6 Ired. 882, 387 (but here received, when made
before actual execution of the deed, which had
been falsely antedated) ; North Dakota: 1898,
Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W.
797 ; Ohio : 1889, Hills v. Ludwig, 46 Oh. St.
373, 378, 24 N. E. 596; Oregon: 1895, Josephi
V. Furnish, 27 Or. 260, 4] Pac. 424 ; Pennsyl-
vania: 1805, Irwin v. Bear, 4 Yeates 262
(recitals in a patent) ; 1810, Bonnet v. Deve-
baugh, 3 Binn. 175, 179 ; 1815, Packer v.
Gonsalus, 1 S. & R. 525, 535, 537; 1817,
Wolf V. Carothers, 3 id. 240, 245 ; 1822, Patton
V. Goldsborough, 9 id. 47, 55 ; 1825, Babb
V. Clemson, 12 id. 328 ; 1825, Morton v.
M'Glaughlin, 13 id. 107 ; 1868, Pringle v.
Pringle, 59 Pa. 281, 289; 1898, McCuUough
V. R. Co., 186 id. 112, 40 Atl. 404 (by a
grantor, after transfer, but during possession) ;
Tennessee: 1852, Carnalian i*. Wood, 2 Swan
500, 502 ; United States : 1848, Many v. Jagger,
1 Blatchf. 372, 376; Vermont: 1829, Bnllard
V. Billings, 2 Vt. 309, 312; 1842, Hines v.
Soule, 14 id. 99, 105 ; 1901, Davis v. Buchanan,
73 Vt. 67, 50 Atl. 545 ; 1901, Ellis v. Watkins,
73 id. 371, 50 Atl. 1105 (note); Virginia:
1854, Smith v. Betty, 11 Gratt. 752, 763 ;
1883, Barbour ». Duncanson, 77 Va. 76, 83 ;
1885, Daily v. Warren, 80 id. 512, 519 ; 1895,
Brock V. Brock, 92 id. 173, 175, 23 S. E. 224 ;
West Virginia: 1874, Houston v. McCluney,
8 W. Va. 135, 156 ; Wisconsin: 1895, Matteson
V. Hartman, 91 Wis. 485, 65 N, W. 68.
1297
§ 1086 EXTEAJUDICIAL ADMISSIONS. [Chap. XXXV
ferror's statements are offered (a) against the transferee, and (6) against
the creditor attacking the transfer and levying upon the property as still be-
longing to the debtor. The former situation, being the most common and
the most involved, may be examined first:
(a) Where the transferror's statements, made after the transfer of title, are
offered against the transferee (usually consisting in plain admissions of fraud,
or in assertions that the property is still his), it is clear that upon the prin-
ciple of the preceding section, straightforwardly applied, they are inadmis-
sible. This much is always conceded. But there may be other ways of
dealing with the evidence, by some of which (with or without the presence
of special circumstances) the' evidence may legitimately become admissible.
At least five distinct theories, leading to that result, have been advanced by
various Courts. Of these, the first three below enumerated invoke the
principle of Admissions in one aspect or another ; while the remaining two
appeal to other established modes of evading the operation of the Hearsay
rule. Of the five, it may be said that to-day the second would be nowhere
disputed, and thus rarely arises for application by a Supreme Court. Of the
other four, the third is also undisputed, but its requirements are more
stringent than the others-, and therefore it practically competes against them,
because commonly the Courts which follow it repudiate the others. Never-
theless all five resb on established general doctrines and could conceivably be
accepted by the same Court, so as to admit the evidence if it satisfied any
one of the five. Finally, as between the competing theories, the third holds
to day the leading place, with the fourth apparently in next place for favor
and tending to overtake. In some Courts, a pleasing eclecticism inclines
them now to one and now to another theory ; while on the part of a few
Courts there is a sibylline obscurity of expression which baffles the attempt
to interpret precisely their views.
The five theories, then, are as follows :
(1) The theory of Carnahan v. Wood, occasionally followed (in some other
Court) seems to rest on this sequence of thought : Eetention of possession is
prima facie fraudulent ; fraud avoids the transfer ; the title is still in the
debtor ; therefore, his admissions are made while title is still in him, and (on
the priQciple of § 1082, ante^ are receivable :
1852, McKinney, J., in Carnahan v. Wood, 2 Swan 500, 502 : " It is true, iu general,
that the declaration of a party, made after he has parted with his interest in the subject-
matter of litigation, cannot be received to disparage the title or right of a party, acquired
in good faith previous to the time of making such declaration. But this very just and
reasonable principle must be taken as inapplicable to cases of fraudulent sales of property.
If, for example, a conveyance is made, absolute upon its face, and the vendor continues to
retain the possession of the property as before, this being prima facie evidence of fraud, a
creditor impeaching such conveyance on the ground of fraud, may be admitted to prove
the declarations of the vendor, thus retaining the possession, in relation to the ownership,
or to the character of his possession of the property. The fraudulent conveyance, though
valid as between the parties, is void as to creditors of the vendor. So far as relates to
them, the right of property remains unchanged in the vendor."
1298
§§1048-1087] PRIVIES IN TITLE; GRANTORS.
1086
Upon this theory, the rule would limit the debtor's statements to those made
while retaining possession. As a theory, it is possible; but it produces a
suspicion that somewhere within its sequence the fallacy of begging the
question is committed. Moreover, it would seem that at least it applies only
when the transferror is a party to the cause.
(2) The second theory is that the transferror's statements are receivable
when made in the presence of the transferee and impliedly assented to by his
silence; in other words, it invokes the established principle of assenting
silence {ante, § 1071), and receives the statements as the transferee's own ad-
missions, made his by adoption. No Court disputes this, and in the opinions
it is a proviso often noted in passing. It is mentioned here, because it is a
frequently feasible method of using the evidence, though it invokes a distinct
aspect of the principle of Admissions and is applicable in special circum-
stances only.
(3) The third theory is that of admissions by co-conspirators {ante, § 1079).
When a conspiracy, on the part of transferror and transferee, to defraud the
former's creditors, can somehow be established, the former's admissions are
received against the latter, irrespective of being made before or after trans-
fer or during possession, or of the transferror's being a party to the cause.
Retention of possession becomes important only as one circumstance in
the evidence of conspiracy. Moreover, the evidence of conspiracy must
of course {ante, § 1079) be independent of the declarations desired to be
admitted :
1869, Woodruff, J., in Cuyler v. McCartney, 40 N. Y. 221, 227 : " [The admissibility
of these declarations is insisted upon for the reason] that other evidence showed that tlie
assignor and assignees were combined in a conspiracy to defraud the creditors of William
T. Cuyler, and therefore the acts and declarations of either conspirator, while carr3'ing
the common intent into execution, and in furtherance thereof, are competent evidence to
affect all the co-conspirators. This rule is not questioned. . . . [But] it is not and can-
not be successfully claimed that mere proof that assignor and assignee have concurred in
an assignment providing for the payment of debts, establishes a conspiracy within the
rule. Delivering and accepting such an assignment establishes a common intent, but not
a common intent to defraud. If mere proof of concurrence in the execution and delivery
of the assignment established a common intent within the principle making the acts and
declarations of the conspirators, while carrying their common design into execution, evi-
dence against each other, then the rule first above stated [i. e. that declarations after
transfer of title are inadmissible] is made a nullity. No sooner is an assignment made
than the assignor may, by his acts or declarations out of court, defeat it, if he be dishonest
enough to collude with any creditor, or to resent any dissatisfaction with the trustees,
and defeat it by such means. To make such admissions or declarations competent evi-
dence, it must stand as a fact in the cause, admitted or proved, that the assignor and
assignees were in a conspiracy to defraud the creditors. If that fact exist, then the acts
and declarations of either, made in execution of the common purpose, and in aid of its
fulfilment, are competent against either of them. The principle of its admissibility
assumes that fact. It necessarily follows that those declarations or admissions cannot be
received to prove the fact itself. ... So far then, as the admission of the evidence in
this case, of declarations subsequent to the assignment, is sought to be sustained as evi-
dence of the common fraud, on the ground of conspiracy, the argument wholly fails. A
conspiracy cannot be proved against three, by evidence that one admitted it, nor against
12W
§ 1086 EXTRAJUDICIAL ADMISSIONS. [Chap. XXXV
assignees by proof that the assignor admitted it ; it is a fact that must be proved by evi-
dence, the competency of which does not depend upon an assumption that it exists."
This theory is entirely sound so far as it goes. The only criticism to be
made is that, though it is in itself entirely consistent with the ensuing two
theories, yet the Courts which employ it commonly repudiate, expressly or
impliedly, the remaining two, as well as the first above examined. Those
may be or may not be unsound ; but no Court need suppose that the recog-
nition of this one is inconsistent with the recognition of the others ; i. e. that
the rejection of evidence because it does not satisfy the present one requires
its absolute rejection without regard to the satisfaction of the others.
(4) The fourth theory appeals to the verbal-act doctrine {post, § 1772), and
to that particular application of it which receives declarations by one in pos-
session of property as coloring the nature of the possession and thus giving it
a fraudulent or an honest complexion. The effect of this, when the trans-
ferror's declarations make for fraud, is to help to fortify the presumption of
ownership fr"Dm possession, and to fix fraud upon the transferror. The decla-
rations do not affect the transferee, whose knowledge of the fraud is other-
wise to be established (unless the presumption of ownership from possession
be thought to satisfy). The theory has been thus expounded : ^
1835, Gaston, J., in Askew v. Reynolds, 1 Dev. & B. 367, 369 : " The possession of the
slaves, having in this case been retained by the debtor, for eight or nine months after the
execution of his bill of sale, was sufficient to impress upon the transaction the character
of a fraudulent transfer, unless, from other facts and circumstances, another character
could clearly be assigned to it. The plaintiff offered evidence, tending to remove the
legal presumption, and to establish an actual honafide intention, which was properly sub-
mitted to the jury. The evidence is not set forth in the case made, but it must have
tended to show, that the debtor retained the possession as the agent or bailee of the puiv
chaser. The nature of that possession then became an important inquiry. Was it in
truth a possession as the agent or the bailee of the purchaser, or colorably only as such
and actually as the beneficial temporary or permanent owner ? If the first, the apparent
repugnance between the title and the possession might be explained, and honestly
accounted for ; but if the second, then such colorable possession was but part of the
machinery of the fraud. . . . Generally the acts or declarations of a grantor, after the
conveyance made, are not to be received to impeach his grant ; the rights of the grantee
ought not to be prejudiced by the conduct of one who at the time is a stranger to him
and to the subject-matter of those rights. But the acts and declarations in this case were
those of the possessor of the property, — were connected with that possession, and formed
a part of its attendant circumstances. They were collateral indications of the nature,
extent, and purposes of that possession. They were to be admitted, not because of any
credit due to him by whom they were done or uttered, but because they qualified and
characterized, or tended to qualify and characterize, the very fact to be investigated."
This theory can hardly be impugned in its logic. Eeduced to a rule, it
admits the declarations when made during possession, whether or not the
debtor is a party to the cause.
"■ For another good exposition of it, see the swrnptiom, of ovmership, apart fi-om the case of
quotation post, § 1779, from Burgert v. Bor- sales in fraud of creditors, is fully expounded in
diert, 59 Mo. 80. The general principle of passages quoted ^osJ, § 1778.
verbal acts in possession as affecting the pre-
1300
§§ 1048-1087] PRIVIES IN TITLE; GRANTOES. § 1086
(5) The fifth theory is based on the same principle as Bridge v. Eggleston
(ante, § 1082, par. 4), but carries its logic further. A part of the issue being
the debtor-transferror's intent, all his conduct and declarations which indicate
his intent when dealing with the property are to be receivable (on the prin-
ciple of § 1729, ^os«, and § 266, ante),— an ordinary application of estab-
lished principles having a larger scope :
1823, Porter, J., in Guidry y. Grivot, 2 Mart. N. s. La. 13, 15: "To set aside the con-
veyance, three things were necessary, — fraud on the part of the vendor, fraud on the part
of the vendee, and an injury to the party claiming. The acts and declarations of the first
are surely as good and as high evidence as any other that can be given to prove fraud in
him. They are of course not sufficient to show the vendee acted from the same motives ;
for then, as it was justly said in argument, every purchaser would hold at the mercy of
him from whom he bought. But it is not a good objection to the introduction of evi-
dence that it does not make out at once the whole of the case in support of which it is
presented."
This theory is a legitimate one, and attracts by its simplicity. Its natural
limitation, when reduced to a rule, is that the transferror must be in posses-
sion at the time ; for otherwise his utterances would be of a past, and not a
present, intent in dealing with the property, and therefore inadmissible (post,
§ 1729). The only objection can be the one intimated in Bridge v. Eggleston
(ante, § 1082, par. 4) that the declarant has after the nominal transfer a mo-
tive to deceive ; but this objection is over-nice, because he has equal motives
to deceive before the transfer, and because the likelihood after the transfer
that he will wish to falsify for the creditor (his natural antagonist, who now
offers the declarations) is relatively small.
Of these theories, so far as they compete in their limitations, it cannot be
said that, from the point of view of practical policy, the more liberal ones are
to be disparaged.^ The more light that is thrown on such transactions, the
^ Where nothing is noted, in the citations of Bridge w. Eggleston, Mass.); 1869, Visher u.
helow, as to the debtor's possession, it is because Webster, 13 id. 58, 61 (declarations excluded
the fact does not appear. All rulings which where there was ' ' no such clear and unequivocal
clearly appear to go upon the fourth theory possession as to admit them " on the ground of
above (verbal acts in possession) are placed res gestce) ; 1860, Cohn v. Mulford, 15 id. 50,
under that head, post, § 1779. For Massachu- 52 (similar to Paige v. O'Neal) ; 1864, Long v.
setts and Pennsylvania additional cases will thus Dollarhide, 24 id. 218, 227 (declarations after
be found in § 1779, post, reaching the opposite an assignment, said never to be admissible) ;
result, on the verbal-act theory. For Alabama, 1864, Gaboon v. Marshall, 25 id. 197, 202 (held
Missouri, and North Carolina, all the cases inadmissible, unless perhaps when made in pos-
whatever have been placed together in § 1779, session with the vendee's consent) ; 1864, Jones
post, because of their inextricable confusion of -o. Morse, 36 id. 205 (foregoing qualification not
rulings; a few of the other jurisdictions repre- noticed); 1869, Spanagel o. Dallinger, 38 id.
sented below are by no means consistent in their 278, 282, 284 (declarations after possession
rulings : New Brunswick : 1843, Doak v. John- taken by the grantee, held inadmissible); 1874,
son, 2 Kerr 319 (declarations of the gi'antor's Hutchinga ?;. Castle, 48 id. 152, 156 (similar) ;
son in possession, not admitted for the grantor's 1894, Murphy v. Mulgrew, 102 id. 547, 552, 36
creditor) ; 1858, Lawton v. Tarratt, 4 All. 1, 9 Pac. 857 (personalty ; vendor's declarations,
(debtor's declarations before and after the sale, after sale but in possession, admitted ; foUow-
adniitted; no definite rule stated) ; 1890, ing Gaboon v. Marshall); 1895, Emmons v.
McManus v. Wells, 29 N. Br. 449 (grantee's Barton, 109 id. 662, 670, 42 Pac. 303 (grantor's
declarations excluded, though a party to the declarations while iu possession of the realty,
fraud, in an action against the sheriff for the held inadmissible ; suggesting that for person-
debtor's escape ; Tuck, J., diss.) ; Alabama alty the rule was different) ; 1898, Banning v.
(ioos«, § 1779) ; Calif ornia : 1&59, Paige i-. O'Neal, Marleau, 121 id. 240, 53 Pac. 692 (personalty ;
12 Gal. 483, 484, 496 (excluded, on the doctrine debtor's declarations " after the sale, " excluded) ;
1801
1086
EXTEAJUDICIAL ADMISSIONS.
[Chap. XXXV
better. There is just as much risk of injuring an honest creditor as of dis-
possessing an honest buyer. There is in common experience a great deal
1898, Henderson o. Hart, 122 id. 332, 54 Pac.
1110 (personalty ; debtor's declarations, after
title and possession gone, excluded) ; 1901,
Bush & M. Co. V. Helbing, 134 id. 676, 66
Pac. 967 (husband's declarations of claim, while
in possession, admitted, on the theory of con-
spiracy, in a suit to set aside a deed to his wife) ;
Connecticut: 1786, Woodruff v. Whittlesey,
Kiiby 60, 62 ("though » person may confess
for himself, he cannot for another" ; here the
time of the declarations did not appear) ; 1815,
Barrett ». French, 1 Conn. 354, 365 (grantor's
declarations after transfer, said to be inadtnissi-
hle) ; 1844, White v. Wheaton, 16 id. 530, 535
(.same) ; Georgia: 1877, Oatis v. Brown, 59 Ga.
711, 716 (declarations while retaining possession,
admitted " as part of the res gestae of the fraud-
ulent enterprise") ; 1880, Williams p. Hart, 65
id. 201, 207 (rule of the preceding case applied) ;
1884, Powell V. Watts, 72 id. 770, 774 (ad-
mitted, where the debtor remained in po3ses.sion
contrary to the terms of the conveyance ; no
precedent cited) ; Idaho: 1903, Meyer ». Muaro,
— Ida. — , 71 Pac. 969 (declarations of mort-
gagor, after execution, held admissible only
where the mortgagee is "a party to a common
unlawful purpose ") ; Illinois : 1860, Wheeler
». McCorristen, 24 111. 40 (declarations after
possession and title transferred, excluded) ;
1861, Bust 0. Mansfield, 25 id. 336, 339 (pre-
ceding case approved ; it does not appear who
had possession) ; 1861, Myers v. Kinzie, 26 id.
36 (like Wheeler v. McCorristen) ; 1866, Miner
V. Phillips, 42 111. 123, 130 (like Wheeler v.
McCorristen) ; 1869, Gridley v. Bingham, 51 id.
153 (preceding case approved ; but here it did
not appear who had possession) ; 1895, Milling
V. Hillenbrand, 156 id. 310, 40 N. E. 941 (like
Wheeler v. McCorristen) ; Indiana: 1849,
Caldwell V. Williams, 1 Ind. 405, 409 (admitted
on the theory of conspiracy, following Water-
bury V. Sturdevaut, N. Y.) ; 1877, Tedrowe v.
Esher, 56 id. 443 (same) ; 1881, Kennedy v.
Divine, 77 id. 490, 493 (same) ; 1884, Daniels
V. McGinnis, 97 id. 549, 551 (same) ; 1885,
Eiehl V. Evansville Foundry Ass'n, 104 id. 70,
73, 3 N. E. 633 (same) ; 1886, Hunsinger v.
Hofer, 110 id. 390, 393, 11 N. E. 463 (admis-
sible " wherever it appears, either by direct or
circumstantial evidence, that the grantor and
the grantee were acting in concert"); 1896,
Higgins V. Spahr, 145 id. 167, 43 N. E. 11
(same ; provided that a prima facie case of
fraud must firet be made out to the satisfac-
tion of the Court) ; moreover, where the
grantor and gi'antee are joined as defendants,
e. g. when they are husband and wife, it is
held that the husband's admission is at least
receivable against himself : 1880, Bruker v.
Kelsey, 72 Ind. 51, 56 ; 1883, Hogan o. Rob-
inson, 94 id. 138, 145 ; 1885, Riehl u. Evans-
ville Foundry Ass'n, 104 id. 70, 73, 3 N. E.
633 ; 1898, Vansickle v. Shenk, 150 id. 413, 50
N. E. 381 (admissible, " where he is a party to
the suit ... to show his motive or purpose in
making the conveyance " ; though not as against
the grantee ; this is virtually on the fourth theory
above) ; Iowa : 1859, Savery v. Spaulding, 8 la.
239, 250 (debtor's declarations as to the amount
of goods on hand, excluded) ; 1865, Blake v.
Graves, 18 id. 312, 314 (declarations in pos-
session, admitted ; the remaining in possession
will " be deemed such evidence of a conspiracy,"
or at least will be deemed "such a connection
with the property " as to invoke the shibboleth
res gestae) ; 1876, Hurley o. Osier, 44 id. 642,
644, semble (theory of conspiracy employed to
admit the declarations) ; 1878, Keystone Mfg.
Co. D. Johnson, 50 id. 142, l44 (declarations
after title and possession gone, excluded) ; 1879,
Benson v. Lundv, 52 id. 265, 3 N. W. 149
(same) ; 1881, McCormieks v. Fuller, 56 id. 43,
46, 8 N". W. 800 (declarations in possession, ex-
cluded, there being no issue as to defrauding
creditoi-s ; distinguishing Blake v. Graves, where
the possession was, held to be evidence of fraud-
ulent conspiracy) ; 1884, Bixby v. Carskaddon,
63 id. 164, 170,'l8 N. W. 875 ; s. c, 70 id. 726,
728, 29 N. W. 626 (same as Benson v. Lundy) ;
1888, Bener v. Edgington, 76 id. 105, 109, 40
N. W. 117 (same) ; 1890, Turner v . Hardin,
80 id. 691, 695, 45 N. M'. 758 (same) ; 1897,
Thomas v. McDonald, 102 id. 564, 71 F. W.
572 (same) ; Kansas: 1895, Burlington Nat'l
Bank v. Beard, 55 Kan. 773, 42 Pac. 320, sernble
(declarations by debtor in possession, receivable
to show intent) ; Keniueky: 1833, Doyle v.
Sleeper, 1 Dana 531, 532, semble (declarations
after title gone, but during possession, ex-
cluded) ; 1842, Christopher w. Covington, 2
B. Monr. 357, 359 (same) ; Louisiana: 1823,
Guidry v. Guivot, 2 Mart. N. s. La. 13, 15
(admissible ; see quotation supra) ; 1824, Martin
». Reeves, 3 id. 22 (same ; explaining High-
lander V. Fluke, 5 Mart. 442, 448) ; Maine :
1854, Fisher v. True, 38 Me. 534, 537 (declara-
tions after title and possession gone, excluded) ;
Massachtisetts : 1804, Alexander v. Gould, 1
Mass. 165 (declarations after sale and during
possession, lield inadmissible, even where other
evidence of the fraud of the vendee was in the
case ; Sedgwick, J., semble, contra) ; 1815,
Clarke «. Waite, 12 id. 439 (similar for realty ;
excluded) ; 1817, Bridge v. Eggleston, 14 idi
245, 250 (realty ; excluded, because " he is in-
terested to have such title defeated by Ms
creditors," and because "afterwards he has no
relation to the estate he has conveyed") ; 1859,
Aldrieh v. Earle, 13 Gray 578 (realty ; Bridge
V. Eggleston followed) ; 1861, Taylor ». Robin-
son, 2 All. 562 (realty ; similar) ; 1867, Win-
chester V. Charter, 97 Mass. 140, 142 (realty ;
declarations after execution of the deed and
during possession, excluded) ; 1873, Holbrook
V. Holbrook, 113 id. 74 (prior cases approved) ;
1882, Roberts v. Medberry, 130 id. 100 (same ;
but compare § 1779, post, where this case is
cited) ; Michigan: 1896, Muncey v. Sun Ins.
Office, 109 Mich. 542, 67 N. W. 563 (insurance
policy ; assignor's declarations excluded) ; Mis-
1302
1048-1087]
PRIVIES IN TITLE; GRANTORS.
1086
more likelihood that the unscrupulous debtor will try to trick his creditor
than that he will endeavor to overturn an honest sale by making evidence
sissippi: 1840, Femday v. Selser, 4 How. 506,
520 (grantor's declarations after execution of the
deed, held inadmissible) ; 1876, Taylor v. Webb,
54 Miss. 36, 43 (declarations made " after he
had parted with the land," excluded) ; Missouri
(ie.e post, §1779); Nebraska: 1888, Campbell
V. Holland, 22 Nebr. 587, 594, 35 N. W. 871
(declarations after transfer of title, excluded ;
theory of conspiracy, doubted as inapplicable ;
opinion by Cobb, J.); 1889, White v. Woodruff,
25 id. 797, 799, 805, 41 N. W. 785 (similar
di'clarations, held admissible, in an opinion by
the same judge, citing no precedents at all) ;
1889, Williams v. Eikenberry, ib. 721, 724, 41
N. W. 770 (declarations by the debtor, after the
vendee had taken possession, held inadmissible,
except as contradicting the debtor's testimony
on the stand ; opinion by Beese, C. J.) ; 1889,
Sloan V. Coburn, 26 id. 607, 609, 42 N. W. 726
(declarations after transferring title and posses-
sion, admitted to show the debtor's "intention
at the time they made the transfer," on the
authority of the preceding case, no other being
cited ; opinion by Reese, C. J.) ; 1894, McDonald
V. Bowman, 40 id. 269, 273, 58 N. W. 704
(debtor's declarations, after a mortgage but in
possession, admitted as indicative of his intent
to defraud) ; Nevada: 1883, Hirschfeld v. Wil-
liamson, 18 Nev. 66, 1 Pac. 201 (declarations
a.(Un- possession and title transfen-ed, excluded) ;
New Hampshire: 1842, Blake v. White, 13
N. H. 267, 273 (debtor's declarations admitted,
on the theory of Bridge t. Eggleston, Mass.,
supra, § 1082, par. 4, without discrimination as
to their utterance before or after transfer ; this
is sound, upon the fourth theory above noted) ;
New York: 1809, Phoenix v. Dey, 5 John. 412,
426 (personalty ; declarations after title and pos-
session gone, excluded) ; 1814, Osgood v. Man-
hattan Co., 3 Cow. 612, 622 (same); 1834,
Sprague v. Kneelaud, 12 Wend. 161 (similar ;
place of possession obscure) ; 1834, Crary v.
Sprague, ib. 41 (see the citation supra, § 1083;
this ruling does not involve the precise question,
but has been cited as authority in the later rul-
ings) ; 1837, Waterbury v. Sturtevant, 18 id.
353 (assignor's admissions, six mouths after the
conveyance, as to the fraudulent intent, held
admissible, on the theory of conspiracy ; though
the reversal of the judgment casts doubt on this
point) ; 1851, Adams v. Davidson, 10 N. Y.
309, 313 (assignor's declarations. In possession,
admitted to show fraud ; this ruling is in the
later opinions sometimes disapproved, some-
times distinguished) ; 1864, Ball v. Loomis, 39
id. 412, 416 (declarations after possession and
title transferred, excluded) ; 1869, Cuyler ;;.
McCartney, 40 id. 221, 227 (assignor's decla-
rations, held admissible, even after possession
surrendered to the assignee ; if a conspiracy to
defraud is shown, otherwise not ; but the decla-
rations themselves cannot suffice to evidence the
conspiracy ; see quotation supra) ; 1872, New-
lin V. Lyon, 49 id. 661 (similar) ; 1874, Tilson
V. Terwilliger, 56 id. 273, 276 (assignor's decla-
rations, after renewing possession, not received
as evidence of fraud) ; 1878, Buraham v. Bren-
nan, 74 id. 597 (declarations after title and pos-
session transferred, excluded) ; 1881, Coyne v.
Weaver, 84 id. 386, 392 (declarations after sale
and delivery of possession, excluded ; Cuyler v.
McCartney approved) ; 1881, Tabor v. Van Tas-
sel, 86 id. 642 (Cuyler v. McCartney approved) ;
1888, Loos V. Wilkinson, 110 id. 195, 211, 18
IS. E. 99 (assignor's declarations, while in pos-
session, held admissible "as bearing upon the
questions of fraud," and as "part of a fraudu-
lent scheme concocted by the three brothers,
grantor and grantee" ; Cuyler v. McCartney cited,
but its limitations not observed) ; 1888, Bush v.
Roberts, 111 id. 278, 282, 18 N". E. 732 (similar
to Tabor v. Van Tassel) ; 1892, Kain v. Larkin,
131 id. 300, 312, 30 N. E. 105 (Cuyler v.
McCartney approved) ; 1899, Lent v. Shear, 160
id. 462, 469, 55 N. E. 2 (declarations "after
the transfer of both title and possession," ex-
cluded, there being no evidence of conspiracy) ;
North Carolina (see post, § 1779) ; A^ortk Da-
kota: 1898, Paulson Mercantile Co. v. Seaver,
8 N. D. 215, 77 N. W. 1001 (admissible only
on the theory of conspiracy ; this to be other-
wise evidenced) ; Oregon : 1884, ■ Krewson i'.
Purdom, 11 Or. 266, 3 Pac. 822 (vendor's
declarations, after possession and title gone,
held inadmissible "in the absence of any proof
of fraud or collusion"); Pennsylvania: i829,
Wilbur V. Strickland, 1 Kawle 458, 460 (ad-
mitted, after evidence of continued possession,
"to show that the transfer to S. was entirely
colorable, fraudulent, and void " ; but the
principle was conceded that the fraudulent
combination must first be otherwise evidenced) ;
1834, M'Kee v. Gilchrist, 3 Watts 230, 232
(principle of fraudulent conspiracy, held ap-
plicable); 1860, McDowell •>. Eissell, 37 Pa.
164, 168 (declarations during possession, held
admissible; "there must be some evidence of
a common purpose or design ; but a very .<;light
degree of concert or collusion is sufficient ") ;
1868, Pringle v. Pringle, 59 id. 281, 289 (decla-
rations during possession, excluded, there being
no claim or evidence of fraudulent conspiracy) ;
1869, Hartman c^. Diller, 62 id. 37, 43 (declara-
tions admitted, after fraudulent collusion was
otherwise evidenced) ; 1869, Pier v. Duff, 63 id.
59, 64 ("if there be any, even very slight evi-
dence of complicity between the grantor and
grantee in a design to defraud creditors," the
grantor's declarations are admissible ; the opinion
also speaks loosely of admitting declarations by
a possessor in general, to prove the character of
the possession) ; 1903, Boyer v. Weimer, 204
id. 295, 54 Atl. 21 (conspiracy rule ap])lied) ;
compare also the cases post, § 1779 ; South
Dakota: 1903, Aldous v. Olverson, — S. D.
— , 95 N. W. 917 (action by the wife for prop-
erty taken by a creditor of the husband ; dec-
larations after transfer, excluded) ; Tennessee :
1833, Perry v. Smith, 4 Yerg. 323 ("No pos-
terior act of N. without the participation of S.
1303
§ 1086
EXTRAJUDICIAL ADMISSIONS.
[Chap. XXXV
for his creditor. Any theory which, by invoking some legitimate principle
of evidence, will admit more of the debtor's utterances is practically to be
commended and employed. The effort should be to open, and not to close,
any available avenue of evidence.
(6) "When the transferror's declarations (admitting that he has transferred
and confirming the transfer as honest and valid) are offered iy the transferee
against the creditor, they are plainly admissible (on the principle of §§ 1080,
1081, ante), because the creditor claims only under the debtor, and thus all
the latter's admissions, before levy on his alleged property, are admissions of a
predecessor in title.^ But some Courts, applying the verbal-act theory (in
par. 4, supra), admit on that ground declarations during possession, ignoring
the present principle.*
§ 1087. Same : Other Principles affecting Grantors' Declarations as to
Property, discriminated. Statements of a grantor not admissible under any
of the foregoing principles (in §§ 1082-1086) may nevertheless be admissible
by virtue of other principles of evidence, resting on different conditions.
The chief of these are (1) the Hearsay exception for statements of facts
could defeat the transaction ") ; 1846, Trotter ».
Watson, 6 Humph. 509, 513 (the debtor's reten-
tion of possession inconsistent with a deed being
" a badge of fraud which of itself connects hira
with the claimant in the suspicion of a confeder-
acy to defeat creditors," his declarations are ad-
missible ; but not otherwise) ; 1852, Cainahan
V. Wood, 2 Swan 500, 503 (see quotation supra) ;
1871, Vance ». Smith, 2 Heisk. 343, 353
(debtor's declarations, not admitted against ben-
eficiaries " who had no knowledge of sucb decla-
rations, and no agency in causing them to be
made ") ; Texas : 1886, Hamburg v. Wood, 66
Tex. 168, 176, 18 S. W. 623 (declarations dur-
ing possession, admissible "when a. prima, facie
case of combination or conspiracy has been
made by other evidence " ; and tho vendor's
remaining in possession with the vendee's con-
sent makes a "prima facie case of fraud") ;
United States: 1885, Winchester & P. M. Co.
V. Creary, 116 U. S. 161 (the " common pur-
pose to defraud" must be "first established
by independent evidence," and the declarations
must "have such relation to the execution of
that purpose that they fairly constitute a part
of the res gesUe") ; 1885, Jones v. Simpson, ib.
609, 6 Sup. 538 (preceding rule applied) ; 1893,
Grimes D. G. Co. v. Malcolm, 7 C. C. A. 426,
58 Fed. 670 (debtor's declarations, after mort-
gage executed and delivery made, excluded) ;
Vermont: 1833, Denton v. Perry, 5 Vt. 382,
388 (declarations after title and possession gone,
excluded) ; 1833, Edgell v. Bennett, 7 id. 534,
537 (same) ; 1845, Ellis v. Howard, 17 id. 330,
335 (same) ; 1856, Hayward Rubber Co. v.
Duucklee, 30 id. 29, 40 (same) ; Virginia :
1828, Claytor v. Anthony, 6 Band. 285, 290,
300 (declarations during possession, admitted,
partly on the principle that a " community of
purpose" had been evidenced, partly as declara-
tions of fraudulent intent accompanying the act
of sale ; Coalter, J., diss., on the facts) ; rFash-
ington : 1898, Anderson v. White, 18 Wash.
658, 52 Pac. 231 (admissible only on the theory
of conspiracy) ; JUsconsin: 1861, Bates v.
Ableman, 13 Wis. 644, 645, 650, 721, 728
(debtor's declaration during possession after as-
signment, excluded; "we see no principle of
evidence upon which they could be admitted ") ;
1861, Bogert v. Phelps, 14 id. 88, 95 (similar ;
"in order to affect the vendee, his knowledge of
and participation in the fraud of the vendor must
alto be proved " ; though when offered on the
principle of Gillet ». Phelps, supra, § 1082, par.
4, they may be admissible if "shortly after the
sale, if made so near the time of it as fairly to
indicate what was then passing in his mind ") ;
1861, Grant v. Lewis, ib. 487, 489 (declarations
while still in possession, held admissible "for
the purpose of showing fraud in the sale if they
have that tendency " ; preceding cases ignored) ;
1869, Knapp v. Schneider, 24 id. 70, 73 (pre-
ceding ease approved, but the ruling held inap-
plicable, since here the declarant purported to
be not a vendor but an asent to buy for the
plaintiff); Wyoming: 1896, Toms v. Whit-
more, 6 Wyo. 220, 44 Pac. 56 (admissible only
on the theory of conspiracy).
» 1867, Whitaker v. Wheeler, 44 111. 440,
442 (trover against a sheriff levying) ; 1855,
Cavin V. Smith, 21 Mo. 444 (debtor's admis-
sions, while in possession, that his title was
only conditional, received against attaching
creditor) ; 1855, Burgess v. Quimby, ib. 508
(.same) ; 1822, Johnson v. Patterson, 2 Hawks
183. Contra: 1896, Bertrand v. Heaman, 11
Manit. 205, 208 (Dubuc, J., diss. ; here, a gar-
nishment) ; 1899, Marshall v. May, 12 id. 381
(preceding case approved).
* These rulings are collected post, § 1779,
note.
1304
§§ 1048-1087] PRIVIES IN TITLE; GRANTORS. § 1087
against proprietary interest (post, § 1458) ; here the declarant must be
shown to be deceased or otherwise unavailable, and other limitations apply;
(2) the verbal-act doctrine, as applied to declarations in possession (post,
§ 1778) ; here the issue must be one of possession, but it is immaterial
whether the declarant is dead, or whether the declarations are against or for
his interest ; (3 ) the same doctrine, as applied to the presumption of owner-
ship from possession (post, § 1779) ; the application of this doctrine to trans-
fers in fraud of creditors has been specially noted in the foregoing section, but
it may become equally applicable to declarations by other grantors ; (4) the
Hearsay exception for ancient deed-recitals, which are admissible in a limited
class of cases irrespective of privity of title (post, § 1573) ; (5) the Hear-
say exception for statements by deceased persons about a land-boundary ; these
are receivable by a rule which takes three very different forms in different
jurisdictions (post, §§ 1563-1570). Moreover, (6) the exclusionary rule
must be noted, which forbids the use of a grantor's assertions of claim to be
used in rebuttal of his admissions disclaiming title {post, § 1133); these
sometimes lead to confusion, in that they might be admissible as coloring an
adverse possession, if the issue is one of prescriptive title (on the principle
of § 1778, post), but would be inadmissible on an ordinary issue of title to
rebut admissions.
Distinguish also three principles not affecting the use of oral declarations,
and yet often involved in the present class of cases : (a) the principle of cir-
cumstantial evidence that possession of a part of a tract of land may be
evidence of possession of the whole of the tract (ante, § 378) ; (b) the
principle of circumstantial evidence that the execution of an old deed or lease
may be evidence of possession of the land itself {ante, § 157) ; (c) the rule of
authentication of documents that age, custody, and possession may be sufficient
evidence of the genuineness of a document purporting to be an old deed (post,
§§2137fif.).
1305
■S 1100
BOOK I, PAET I, TITLE U.
[Chap. XXXVI
Sub-title III : TESTIMONIAL EEHABILITATION (SUPPORTING
AN IMPEACHED WITNESS).
CHAPTER XXXVI.
iNTKODirCTORT.
§ 1100. Distinction between (1) Admissibility
of Evidence to Rehabilitate oi' Support a Wit-
ness, and (2) Stage of the Examination at which
such Evidence can be offered.
§ 1101. Arrangement of Topics.
A. After Impeachment of Hokal Char-
acter.
§ 1104. (a) Proving Good Character in Sup-
port, in General.
§ 1105. Same : (1) after evidence of General
Character.
§ 1106. Same : (2) after evidence of Particu-
lar Instances of Misconduct, by Cross-examina-
tion or Record of Conviction.
§1107. Same: (3) after evidence of Bias, In-
terest, or Corruption.
§1108. Same: (4) after evidence of Self-
Contradictioa (Inconsistency).
§1109. Same: (5) after Contradiction by
other Witnesses.
§^1110. Same : Other Principles, distin-
guished.
§ 1111. (h) Discrediting the Impeaching Wit-
ness ; (1) Cross-examining to Eumors of Mis-
conduct ; (2) Contradicting the Eumoi-s ; (3)
Impeaching his General Chai-acter.
§ 1112. (c) Explaining away the Bad Repu-
tation : (1) Reputation due to Malice, etc. ;
(2) Witness' Veracity Unimpaired; (3) Wit-
ness Kefoimed.
B. After Impeachment by Particular
Acts of Misconduct.
§ 1116. Denial of the Fact ; Innocence of a
Crime proved by Record.
§ 1117. Same : Explaining away the Fact ;
Reformed Good Character in support.
C. After Impeachment by Bias, Interest,
Self-Conthadiotion, oe Admissions.
§1119. Denial of the Fact ; Explaining away
the Fact ; Good Character in Support ; Putting
in the Whole of Conversation, etc.
D. Rehabilitation by Prior Consistent
Statements.
1. Witnesses in general.
§ 1122. General Theory.
§ 1123. History.
§ 1124. Offered (1) in Chief, before any Im-
peachment.
§ 1125. Offered (2) after Impeachment of
Moral Character.
§ 1126. Offered (3) after Impeachment by In-
consistent Statement.
§ 1127. Offered (4) after Impeachment by
Contradiction.
§ 1128. Offered (5) after Impeachment by
Bias, Interest, or Corruption ; Statements of an
Accomplice.
§ 1129. Offered (6) after Impeachment as to
Recent Contrivance.
§ 1130. Same : Statements Identifying an
Accused, or Fixing a Time or Place.
§ 1 131. Olfered (7) alter Cross-examination
or Impeachment of any Sort.
§ 1132. Consistent Statements are themselves
not Testimony ; Impeached Witness himself
may prove them.
§ 1133. Party's Statements of Claim, to rebut
his Admissions.
2. Special Classes of Witnesses.
§ 1134. Complaint of Rape ; Histor)'.
§11.35. Same: (1) First Theory: Explana-
tion of an Inconsistency ; Fact of Complaint is
admissible.
§ 1136. Same : Consequences of this Theory ;
Details not admitted ; Complainant must be a
Witness.
§ 1137. Same: (2) Second Theory : Rehabili-
tation by Consistent Statement.
§ 1138. Same ; Consequences of this Theory ;
Details are Admissible ; Complainant must be a
Witness!, and Impeached.
§ 1139. Same : (3) Third Theory ; Spon-
taneous or Res Gest.-e Declarations, as Excep-
tion to Heai-say Rule.
§ 1140. Same : Summary.
§ 1141. Complaint in travail by Bastard's
Mother.
§ 1142. Owner's Complaint after Robbery or
Larceny-
§ 1143. Statements by Possessor of Stolen
Goods.
§ 1144. Accused's Consistent Exculpatory
Statements.
1306
1100-1U4] SUPPOETING A WITNESS. § 1101
Intkoductoey.
§ 1100. Distinction between (1) Admissibility of Evidence to Rehabilitate
or Support a Witness, and (2) Stage of the Examination at which such
Evidence can be offered. In the process of rehabilitating an impeached
witness, there are four possible stages of the case at which the attempt may
be made ; the cross-examination of the impeaching witness, the re-examination
of the impeached witness, the direct examination of a new witness called in
rebuttal, and the reopening of the case after both sides have closed. There
are certain rules to be observed, for convenience' sake, as to the appropriate
stage for certain kinds of evidence ; some evidence must properly be put in
at a specific appropriate stage or not at all, other evidence at another stage,
and so on. Thus the question may arise whether the evidence offered in
rehabilitation is offered at an improper stage of the trial. With such ques-
tions there is no present concern ; they are dealt with under the general
subject of Order of Evidence {post, §§ 1866-1900).^
But the present subject is the relevancy of the evidence in itself, as-
suming that it is offered at the proper stage. "We are concerned with the
application of the general principles of relevancy to facts offered to rehabili-
tate an impeached witness, — whether a fact is relevant, whether it is prov-
able by other witnesses or only by cross-examination, and the like.
§ 1101. Arrangement of Topics. Having in view the various qualities
already noticed as affecting and impeaching the credibility of a witness, and
the various kinds of facts and modes of testimony available to prove those
qualities, the next inquiry is how such impeaching evidence can be met and
denied or explained away by other evidence. The processes available are
based on the logical possibilities, already noticed {ante, §§ 34, 35), of the
modes of argument available for an opponent ; though the special features of
the position of one sustaining an impeached witness complicate the processes.
But it is not feasible to follow completely any orderly analysis of the vari-
ous sorts of supporting evidence ; for some of them are so closely associated
with the principles affecting certain sorts of impeaching evidence that it is
practically more useful to treat the two in the same place. Moreover, in
theory two arrangements are open to choice, neither of which can practically
be employed throughout. The topics might be considered either according
to the various kinds of impeaching evidence to be met, or according to the
various kinds of rehabilitating evidence used to meet them. Either of these,
if exclusively followed, would cause the separation of practically related
topics and consequent inconvenience. Accordingly, the former grouping is
followed chiefly for the first three ensuing topics (A, B, and C), and the latter
for the last topic (D).
* Compare also the rule for curing one irreievancy by another (ante, § 15).
VOL. 11.-20 1307
§ 1104 SUPPORTING A WITNESS. [Chap. XXXVI
A. Eehabilitation aptee Impeachment of Moral Chaeactee.
§ 1104. (a) Proving Good Character in Support; in general, inadmissible
until Impeached. Good character for veracity is as relevant to indicate the
probability of truth-telling as bad character for veracity is to indicate the
probability of the contrary. But there is no reason why time should be
spent in proving that which may be assumed to exist. Every witness may
be assumed to be of normal moral character for veracity, just as he is assumed
to be of normal sanity (ante, § 484). Good character, therefore, in his sup-
port is excluded until Ms character is brought in question and it becomes worth
while to deny that his character is bad.^
It has been said, to be sure, by a few Courts that where, without actually
introducing testimony, the opponent has effectively insinuated the witness'
impeachment, his good character is then proper in rebuttal. But this exten-
sion is exceptional and perhaps strained.^ Moreover, the exception when an
accused in a criminal case takes the stand is apparent only ; for it is as an
accused that he may offer his good character in chief {ante, § 56), and that
character must concern the trait involved in the charge {ante, § 59) ; and
thus since only his character for veracity can (in most jurisdictions) affect
him as a witness {ante, § 922), his evidence of character at that stage will not
usually be the same as that which he could later offer in his own support as
witness."
The question thus always arises, under this general rule. When is the wit-
ness' character brought into question by the opponent, so as to open the way
to evidence of good character in denial ? This must depend on the nature of
the opponent's impeaching evidence. It may be a direct assault on the wit-
J- This, as a general principle, is universally 1850, Merriam v. R. Co., 20 id. S.'ii, 364 ; 1881,
accepted ; all the rulings in the ensuing sections State v. Ward, 49 id. 429, 433, 442 (not allowed
assume it. The following statutes reaffirm it : for one resident in the State). In New Hamp-
Alaska C. C. P. 1900, § 671 (like Or. Annot. shire, it is held that the party to a divorce suit
C. 1892, § 842) ; Ark. Stats. 1894, § 2961 (in- may offer good character in support without
admissible "until his general reputation has waiting for impeachment: 1842, Kimball v.
been impeached'"); Cal. C. C. P. 1872, §20.53 Kimball, 13 N. H. 222, 225; 1899, Warner v.
(not admissible until character "is impeached"); Warner, 69 id. 137, 44 Atl. 908.
Ida. Rev. St. 1887, § 60S4 (like Cal. C. C. P. « igse, Com. v. Ingraham, 7 Gray 46, 48
§ 20.53) ; Ky. C. C. P. 1895, § 599 (inadmissible (admissible whenever by questions of the op-
" until his general reputation has been im- ponent the general character has been attempted
peached"); Mont. C. C. P. 1895, § 3381 (like to be impeached, even though the opposing wit-
Cal. C. C. P. § 2053) ; Or. C. C. P. 1892, § 842 ness answers favorably ; because " in the manner
(like Cal. C. C. P. § 2053). It has been said in in which the answer is given though in language
Connecticut that such evidence should always be appiirentlv favorable to the witness, yet there
admitted on behalf of the woman in a rape might be conveyed the impression of doubt and
charge, even without anv attempt at impeach- uncertainty as to his reputation"); 1869, State
men't : 18!i), State y De'Wolf, 8 Conn. 93, 100 r. Cheriy,"63 N. C. 493, 495 (admitting it where
("it would not be going too far. perhaps." to the opponent had asked the witness himself
declare such a rule; but here left undecided! ; abont his bad character, and he had refused to
18.33, Rogers v. Moore, 10 id. 14, 17 (said to be answer).
settled). In the .same State a peculiar tradition ^ 1896, Hays v. State, 110 Ala. 60, 20 So.
also admits such evidence, even without im- 322 (excluding the accused's character as to
peachment, in favor of a " stranger," before ani/. veracity in a larceny prosecution) ; and cases
impeachment of character has been attempted : cited ante, §§ 59, 890, 923, 925. For the char-
1830, State r. De Wolf, 8 Conn. 93, 101 (a deaf- acter of a deceased person in homicide, the
and-dumb person was treated as in effect a woman in rape and seduction, and other uses of
stranger) ; 1833, Rogers v, Moore, 10 id. 14, 17 ; character not of a witness, see ante, §§ 62-79.
1308
§§ 1100-1144] AFTEE, CHAKACTER IMPEACHED. § 1106
ness' character, in which case no doubt exists. But it may be evidence of a
doubtful or ambiguous import, — for example, of bias, of a prior self-contra-
diction, of an error of fact, and so on through the whole series of kinds of
discrediting evidence. It is obvious that the theory of each of these kinds
of evidence must be considered before it can be said whether it affects the
witness' character. In the ensuing applications of the rule, therefore, the
result will depend much on the respective theories of Impeachment by Con-
tradiction {ante, § 1000), by Self-Contradiction {ante, § 1017), and by Bias,
Interest, or Corruption {ante, §§ 943-969).
§ 1105. Same : (1) After evidence of General Character. A direct impeach-
ment of moral character by opposing testimony (reputation or personal opin-
ion) plainly satisfies the rule and opens the way for the opposite party to
rehabilitate his witness by testimony" to his good character. No one has ever
doubted this.^
But the character of a witness may also be expressly impeached {ante,
§§ 977-988), not merely by his reputation or by others' personal opinion
of his character, but by particular acts of misconduct indicating a bad
character. This may -be done in two ways: (a) by extrinsic testimony
of conviction of crime ; (&) by answers on cross-examination of the witness
himself as to instances of moral misconduct. These two modes are therefore
also to be considered.
§ 1106. Same: (2) After evidence of Particular Instances of Misconduct,
by Cross-examination or Record of Conviction. At iirst sight, there would
seem to be here also no doubt about the propriety of rebutting by evidence
of good character. The facts offered reflect directly upon the witness' moral
character, and an issue upon that character seems clearly to be opened.
Such is the natural answer to this question :
1838, Nelson, C. J., in People v. Rector, 19 Wend. 610 (after pointing out that good
character, though an essential element of testimony, is assumed, and must first be at-
tacked by the opponent) : " Now what is the ground and reason for allowing a party to
introduce general evidence in reply to fortify and support a witness who has been im-
peached ? It surely is not because the impeachment has been effected by the testimony
of witnesses, or by general evidence as to character, or in a particular way, — all this of
itself can be of no importance; but it is because the impeachment, the effect of the proof,
in whatever way introduced, tends directly to overcome the presumption of good character
upon which the party had a right in the first instance to rely; because a material part of
his proof is struck at by shaking confidence iu the integrity and truth of the witness
upon whom it depends. ... If that [impeachment] can be removed, the presumption
revives, and the facts are again sustained upon the good character of the witness. Re-
garding, then, the principle upon which testimony in reply to the impeachment of a
witness is admitted, and the grounds and reasons upon which it rests, the Court should
rather look to the effect of the impeachment than to the mode and manner in which it
is brought about. It can be of little concern to a party whether the moral character of
his witness is destroyed by the testimony of others called to speak to it, or by a cross-
1 The following minor points may be noted shape of the opponent's admissions); 1850
here : 1860, Prentiss v. Roberts, 49 Me. 127, 137 Morss v, Palmer, 15 Pa. 51, 55 (the supporting
(it is immaterial that the testimony attacking character may cover another time or place than
the witness' general character is offered in the the impeaching one).
1.309
§ 1106 SUPPORTING A WITNESS. [Chap. XXXVI
examinatiou ; the effect upon bim, to the extent of the impeachment, is exactly the same ;
he loses the benefit of the evidence in both cases, and for the same cause, — the discredit
of the witness. . . . There may indeed be more difficulty in the reply, in the case of an
impeachment by cross-examination, than from general evidence. . . . But there is no
intrinsic difficulty rendering a vindication impossible ; the offer of the proof assumes that
it is withiu the power of the party; cases may very well occur of particular vices and
weaknesses, which cast a cloud over the moral character of the man and tend prima facie to
impeach his truth and integrity, but whose veracity could be vindicated by the concurrent
testimony of all his neighbors and acquaintances. . . . But it is urged that, as the wit-
ness is upon the stand, he may be ex2(Hined himself in explanation of the impeaching
facts. The obvious answer to this is that the character of the witness for truth in the
given case is proposed to be sustained by the evidence in reply notwithslanding the exist-
ence of the facts called out on the cross-examination. The case supposes explanation
impossible, but that still his character for truth may be upheld by his neighbors and
acquaintances."
Yet, on strict principle, this result is fallacious. The whole solution turns on
the logical distinction between Explaining away and merely Denying (ante,
§ 34). Consider, first, questions on cross-examination. The misconduct, by
hypothesis, being relevant and being proved by the witness' own admission
on the stand, demonstrates the bad disposition behind it. If there had been
any explanation of the act, the witness could give it {post, § 1117). But
testimony to general good reputation explains away nothing ; the damaging
conduct is proved out of his own mouth. Testimony to his good reputation
could only avail on the hypothesis that an attacking witness to bad reputa-
tion was speaking falsely and that the reputation was really good ; but here
it is by proved conduct and direct inference bad. Furthermore, records of
convictions of crime similarly exliibit the bad character directly, and cannot
be explained away by testimony as to good repute. Such is the rule that
best accords with the correct analysis of the situation :
181i, Ellenborough, L. C. J., in Doddv. Norris, 3 Camp. 519: "The questions put to
herself on cross-examination there was an ample opportunity of explaining, as far as the
truth would permit, when she came to be re-examined." ^
1838, Branson, J., in People v. Rector, 19 Wend. GOO: "Why should such evidence be
received, when the witness is on the stand to give any esxplanation of his conduct which
the truth of the case will permit? G. was not obliged to proclaim his own infamy.
. . . But aside from this consideration, if there was anything to extenuate his conduct in
abandoning his family and living in adultery, he was at liberty to state it. He stood
there to make a picture of himself, and it is not to be presumed that he would draw it in
darker colors than the truth of the case absolutely required. Neither the party who pro-
duces a witness nor the witness himself has any right to complain that compurgators are
not allowed, when there has been no impeachment beyond the facts disclosed by the
witness himself."
1 There is, however, a great deal to be said if the character of a party seduced is attacked iu
for the foUowiug answer to Lord Elleul)oroagh : her cross-examination, though the witness mav
1823, Bate v. Hill, 1 C. & P. 100 (l^ark, J., al- deny the things insinuated, a jury often l)elieve
lowed corroboration by character; Note by the that though denied there is some" {oundation for
Keporters : " The course nllowed by Mr. Justice the insinuation, if witnesses are not called to
I'ark in the present case is much more conducive convince them of the contrary. It is a little too
to the attainment of justice. . . Lord Ellen- much to allow a defendant to blast the cliarac-
borough says that it is to be set rio;ht in re-ex- ter of a person he has seduced by his insinua-
amination. This looks very well in theory, tions and then not to allow her to clear her
Those used to courts of justice well know that character by the best means iu her power ")
1310
§§ 1100-1144] AFTER CHARACTER IMPEA^
Of these opposing views, however, the former
among the Courts.^
* The authorities on both sides are as follows :
England: 1753, Murphy's Trial, 19 How. St. Tr.
693, 724 (allowed after proof of an indictment) ;
1808, Banifield v. Massey, 1 Camp. 460 (Ellen-
borough, h. C. J. ; seduction ; after evidence
that the daughter had previously had a child by
another man, good-character evidence was re-
jected, the contradiction of the specific charge
being declared sufficient for the purpose) ; 1814,
Dodd V. Norris, 3 Camp. ,519 (EUenborough,
L. C. J.; seduction ; the daughter, on cross-exam-
ination, admitted indelicate conduct with the
drfendant ; good-character evidence rejected, as
no general attack on it was thus involved ; a re-
examination declared sufficient for reliabilita-
tion); 1817, R. v. Clarke, 2 Stark. 241 (rape;
after an admission by the prosecutrix that she
had been twice in the House of Correction, evi-
dence of her good cliaracter Since Jhen was held
admissible, to " repel the inference which might
be drawn from her former misconduct," and
" show that the witness is not so unworthy of
credit as she might have been considered to be
if these circumstances had not intervened ") ;
1823, Bate o. Hill, 1 C. & P. 100, Park, J. (facts
like 1 )odd K. Norris, s«;o?'« ; character admitted);
1829, Provis v. Reed, 5-Bing. 435, 438 (deceased
attesting witness' good character received "if it
were imputed to S. that, having caused a will
to be executed imperfectly, he had added an at-
testing witness after the death of the testator, —
that in effect he had committed a forgery, [i.e.]
if his moral character were thus attacked");
18.36, Boev. Harris,7 C. & P. 330 (Coleridge, J.;
attorney drawing the will ; after a cross-exami-
nation in which "it was sought to impeach his
character," evidence of good character was ex-
cluded) ; Ala. ; 1860, Lewis v. State, 35 Ala. 386
(admitted, after evidence of subornation) ; Cal, :
1874, People v. Ah Fat, 48 Cal. 61, 64 (admitted,
after impeachment by an offer of the witness to
give testimony for money) ; 1875, People v.
Amanacus, 50 id. 233 (admitted, after an ad-
mission that he had been convicted of felony) ;
Conn. : 1833, Rogers v. Moore, 10 Conn. 14 (ex-
cluded ; yet it does not appear how i^he cross-
examination affected his character, except as
indicating a share in a fraudulent grant at issue
in the case) ; 1881, State v. Ward, 49 id. 429,
432, 442 (excluded ; the witness had been testi-
fied to as an accomplice in an alleged larceny
admitted to show intient in the larceny charged);
/«.; 1899, State v. Owens, 109 la. 1, 79 N. W.
462 (not admitted after a cross-examination not
resulting in answers involving misconduct) ; La.:
1886, State v. Boyd, 38 La. An. 374 (obscure) ;
1892, State u. Fruge, 44 id. 165, 10 So. 621 (ad-
mitted, after questions as to former prosecution);
3Id. : 1869, Vernon u. Tucker, 30 Md. 456, 462
(allowable after " matter brought out on cross-
examination," if it "amounts to an impeach-
ment of the character for truth ") ; Mans.: 1829,
Russell !■. Coffin, 8 Pick. 143, 154 (admissible if
the answers "impeach his general character") ;
1855, Harrington ». Lincoln, 4 Gray 563, 567
(left undecided ; in this case, however, the fact
1
§ 1106
mands the most support
ut was merely a charge of crime ; and
'ess' further answer stating his acquittal
'eld to remove the effect of the original
aflWver); 1875, McCartya. Leary, 118 Mass. 510
(cross-examination as to intoxication of the
plaintiff-witness at other times than the assault
in question; character for sobriety excluded,
because it " would not have removed the im-
pnfction which resulted from his own testimony
oimhe stand"; the preceding cases not cited) ;
1834, Gertz v. Fitchburg R. Co., 137 id. 77, 78
(record of conviction of crime ; reputation for
veraJiity admitted ; good opinion by Holmes, J.) ;
Mich.: 1888, Hitchcock v. Moore, 70 Mich. 112,
114 (slander; good character excluded, after
cross-examination to specific facts ; "such sjiecific
facts cannot be met . . . with evidence of gen-
eral reputation ") ; N. Y. : 1838, People v. Rec-
tor, 19 Wend. 569, 584, 595 (admitted; Bronson,
J., diss, and allowing it only (1) for deceased
attesting witnesses — semble, to wills only —
charged with fraud, and (2) for a witness who
wishes to show a reform since the past delin-
quencies brought out on cross-examination ; in
this case, the witness admitted leading a disso-
lute life ; see quotations svpra] ; 1842, Carter v.
People, 2 Hill 317 (the witness admitted having
been arrested on a charge of counterfeiting ;
good character for truth allowed) ; 1842, People
V. Hulse, 3 id. 309, 314 (affirming People v.
Rector, though Bronson, J., the mouthpiece of
the Court, still expresses a liking for his doc-
trine in that case as dissenter; the rule here
affirmed as law admits the supporting character
after an attack " drawing out extrinsic fact^
going to general character on the cross-exami-
nation") ;' 1852, People v. Gay, 7 N. Y. 378, 381
(affirming People v. Hulse ; the attack must
consist in evidence on cross-examination going
to impeach his general character; People v.
Hulse is said to have overruled " in effect " thp
preceding cases, but this is clearly erroneous, as
Welles, J., diss., points out at 382 ; the only
point overruled is that of People v. Carter,
which treats a mere arrest or charge as involv-
ing moral character, — a point expressly denied
in the present case) ; 1856, Stacy f. Graham, 14
id. 492, 501 (admitted after witness' admission
of corruption ; no authofities cited ; Wright, J.,
diss.); 1890, Young i: Johnson, 123 id. 226,
234 (rape; character excluded, after proof of the
woman's loose conduct); Oh.: 1876, Webb v.
State, 29 Oh. St. 351, 358 (admitted, after evi-
dence of conviction of crime) ; 1894, Wick v.
Baldwin, Slid. 51, 36 N. E. 671 (cross-examina-
tion to conviction of crimes ; reputation for truth
admitted) ; Pet. : 1839, Braddee v. Brownfield,
9 Watts 124 (after cross-examination ; opinion
ajpparently self-contradictory, looking both ways);
Tenn.: 1885, Hoard v. State, 15 Lea 318, 323
(admitted, after cross-examination to character) ;
1900, Warfield v. R. Co., 104 Tenn. 74, 55 S. W.
304 (admissible after cross-examination affecting
veracity) ; Tex. : 1899, Smith v. State, — Tex.
Cr. — , 50 S. W. 363, semble (allowable, after
cross-examination to character, only if the wit-
311
§ 1107 SUPPOETING A WITNESS. [Chap. XXXVI
§ 1107. Same : (3) After evidence of Bias, Interest, or Corruption. An
act of Corruption directly affects moral character; and the corroboration
should therefore depend upon the rule for acts involving character.* But
Bias and Interest clearly do not involve any issue on the moral character of
the witness, and there is no occasion for testimony to good character.^
§ 1108. Same : (4) After evidence of Self -Contradiction. The exposure of
an error of a witness on a material point by his own self-contradictory state-
ments is a recognized mode of impeachment {ante, § 1017), and serves as a
basis for the further inference that he is capable of having made errors on
other material points. This possibility of other errors, however, is not attrib-
uted specifically to any definite defect ; it may be supposed to arise from a
defect of knowledge, of memory, of bias, or of interest, or, by possibility
only, of moral character (ante, § 1017). Thus, though the error may con-
ceivably be due to dishonest character, it is not necessarily, and not even
probably, due to that cause. If now we regard this remote contingency as
important, it follows that he should be allowed to rebut this inference by
evidence of good character. But if we regard this remote contingency as too
slender to be taken into account, we shall refuse to believe that any issue
of character is involved. It is according to these two opposing views of the
situation that Courts admit or exclude such evidence. The former view is
represented in the following passages:
1838, Cowen,3., in People v. Rector, 19 Wend. 583: "With great deference I ask,
Do not discrepancies of statement in themselves go to general character ? They are
not like contradicting a witness on the fact itself, nor do they bring the matter to a
mere test of memory. How do they operate in common understanding ? Either to
evince a dangerous levity and versatility, or downright dishonesty in representing a
matter of fact."
1870, Frazer, J., in Clem v. State, 33 Ind. 427: " The sole object in asking a witness
whether he had made statements elsewhere not in accordance with his testimony, and
upon his denial calling other witnesses to show that he did make such statements, is to
create a belief that he is not a credible witness. Impeachment of a witness by proof of
his bad character is intended to accomplish exactly and only the same thing. The state-
ments and the bad character are alike immaterial, except for the single purpose of
affecting the credit of the witness, and it is not easy to say that the two methods are not
about equally efficient in accomplishing the end. In either case, the credibility of the
witness is impaired. . . . If it is just in the one case that a party should be permitted
to establish the credit of his witness by showing his good character, it is alike just in
the other case."
BBSS is a stranger in the commnnity); 1899, ». State, — Wis. — , 93 N. W. 1097 (admis-
Luttrell V. State, 40 id. 651, 51 S. W. 930 (ad- sible, after impeachment by conviction of crime),
missible, after evidence of misconduct) ; Vt. : ^ The cases have been placed in the foregoing
1848, Paine v. Tilden, 20 Vt. 554, 564 (admitted, section.
where the "character of the witness is attacked ^ 1898, First Nat'l Bank v. Com. TJ. Ass. Co.,
... by cross-examination"); 1892, Stevenson 33 Or. 43, 52 Pac. 1050 (bias). A Chinese
r. Gunning's Estate, 64 id. 601, 609, 25 Atl. 697; witness is by Federal statute in certain cases
Va.: 1877, George c.Pilcher, 28 Gratt. 299, 312, required to be corroborated {post, § 2066) ,' it
315 (semUe, admissible); 1895, Eeynolds v. R. wcrJd seem therefore that his good character for
Co., 92 Va. 400, 23 S. E. 770 (an endeavor on veracity ought in such cases to be received in
cross-examination to show that the plaintiff's chief. Contra: 1901, Woey Ho u. U. S., 48 0. C.
injuries existed >efore the accident, held not a A. 705, 109 Fed. 888 (in discretion),
sufficient impeachment) ; Wis. : 1903, Kraimer
1312
§§ 1100-1144]
AFTER SELF-CONTRADICTION.
1108
The opposite view is represented by the following passage :
1860, Wardlaw, J., in Chapman v. Cooley, 12 Rich. L. 659: "The greatest rogue,
under circumstances supervised by his neighbors, may simulate the course of honesty ;
one of good principles and the fairest reputation may be utterly unworthy of credit in
his statements of some transaction. Monomania is a state of mind universally recog-
nized, and it may preclude one completely from the perception and narration of the
truth. Intense ignorance or superstition, or some affection, may produce the same con-
sequences. The great improbability of a narrative may produce disbelief, without im-
pairing the confidence of the hearers in the probity of the narrator. A wise and good
man may fail in his remembrance of any fact, and especially of its attendant circum-
stances. Surely, then, character and credit are distinct things, and every assault on the
credit of a witness does not involve the imputation of perjury to him, nor, indeed, any
reflection on his reputation."
The latter view seems to be much more in harmony with the needs of the
situation. Considering the usual remoteness of the inference as to moral
character, and the minor value of reputation-evidence in modern times,
it is not worth while to cumber the trial with it for so trifling an occasion
of use. As a matter of rule, the various jurisdictions are divided between
the two views.^
1 Ala.: 1848, Hadjo v. Gooden, 13 Ala. 718,
720 (admitted) ; 1860, Lewis v. State, 35 id. 380,
386 (same) ; 1895, Holley v. State, 105 id. 100,
17 So. 102 (same); 1896, Towns v. State, 111
id. 1, 20 So. 598 (same); CaL: 1874, People
V. Ah Fat, 48 Cal. 61, 64 (undecided) ; 1884, Peo-
ple V. Hush, 65 id. 129, 3 Pac. 590 (excluded ; no
cases cited) ; Conn.: isSS, Kogers v. Moore, 10
Conn. 14, semA/e (excluded) ; /fa..- 1898, Mercer
V. State, 40 Fla. 216, 24 So. 154 (admitted);
Ga.: Code 1895, § 5292, P. C. § 1026 (allowar
ble) ; 1853, Stamper v. Griffin, 12 Ga. 456 (ex-
cluded); 1879, McEwen v. Springfield, 64 id.
159, 165 (admitted); 1886, PuUiam r. Cantrell,
77 id. 563, 568, 3 S. E. 280 (same) ; 1903, Clark
V. State, 117 id. 254, 43 S. E. 853 (statute ap-
plied) ; Ind. : 1866, Paxton v. Dye, 26 ]nd. 394
("if by statements inconsistent with material
evidence given by him in the body of his testi-
mony, and which statements he does not admit
that he made," admitted); 1868, Clark v. Bond,
29 id. 555 (admitted) ; Harris v. State, 30 id. 131
(admitted) ; 1870, Clem v. State, 33 id. 418, 427
(admitted, after careful reconsideration of the
subject ; see quotation supra) ; 1 886, Louisville
N. A. & C. R. Co. V. Frawlev, 110 id. 18, 26,
■9 N. E. 594 (admitted); 1893,' Board v. ©'Con-
ner, 137 id. 622, 35 N. E. 1006, 37 N. E. 16
(same) ; la.: 1887, State v. Archer, 73 la. 320,
323, 35 N. W. 241 (excluded) ; 1899, State v.
Owens, 109 iii. 1, 79 N. W. 462 (excluded);
Ky.: 1859, Vance v. Vance, 2 Mete. 581 (ex-
cluded) ; Iji : 1886, State v. Boyd, 38 La. An.
374 (admitted); Md.: 1873, Davis v. State, 38
Md 15, 49 (admissible); Afass.: 1829, Russell
V. Coffin, 8 Pick. 143, 154 (excluded); 1856,
Brown v. Mooers, 6 Gray 451 (same) ; Com. v.
Ingraham, 7 id. 46, 48 (same); Mo.; 1880,
State V. Cooper, 71 Mo. 436, 442 (obscure) ;
N. Y. : 1842, People v. Hulse, 3 Hill 309, 313
(excluded; no special exception allowed for
-1313
rape cases; Cowen, J., diss.); 1847, Starks v.
People, 5 Den. 106, 108 (excluded) ; 1856, Stacy
V. Graham, 14 N. Y. 492, 498, 501 (admitted ;
no precedents cited ; but here there were also
admissions of corruption, and not merely self-
contradictions) : N. C: 1874, Isler v. Dewev,
71 N. C. 14 (admitted) ; Oh. : 1876, Webb v.
State, 29 Oh. St. 351, 357 (excluded ; pointing
out that "if the impeaching evidence should
appear from the conduct of the witness, or
his contradictory statements made during his
examination," his character would clearly be
inadmissible, and yet the situation would be
precisely the same) ; Or.: 1874, Glaze v. W^hit-
ley, 5 Or. 164, 167 (admitted) ; 1882, Sheppard
V. Yocum, 10 id. 402, 413 (overruling the pre-
ceding decision, as representing an inferior
rule); 1898, First Nat'l Bank v. Com. U. Ass.
Co., 33 id. 43, 52 Pac. 1050 (excluded); Pa,:
1839, Braddee v. Brownfield, 9 Watts 124, semhie
(excluded) ; 1853, Wertz v. May, 21 Pa. 274,
279 (same); S. C: 1839, Farr v. Thompson,
Cheves 37, 39, 43 (admitted, as it is " impossible
to resort " to such testimony " without making
a direct attack on the veracity and character of
the witness"); 1860, Chapman v. Cooley, 12
Rich. L. 654, 658 (excluded ; the preceding case
being distinguished and in effect overruled) ;
1888, State v. Jones, 29 S. C. 201, 230 (ex-
cluded) ; 1897, State v. Rice, 49 id. 418, 27 S. E.
452 (excluded); Tex.: 1857, Burrell v. State,
18 Tex. 713, 7.30 (admitted); 1900, Renfro v.
State, 42 Tex. Cr. 393, 56 S. W. 1013 (not al-
lowed where the cross-examiner merely used the
prior statement to refresh the witness' memory) ;
Vt.: 1840, State v. Roe, 12 Vt. 93, 97, 111 (ad-
mitted) ; 1848, Paine v. Tilden, 20 id. 5.54, 564
(same) ; 1848, Sweet v. Sherman, 21 id. 23, 29
(same) ; 1892, Stevenson v. Gunning's Estate,
64 id. 601, 608, 25 Atl. 697 (same); Va.: 1877,
George v. Pilcher, 28 Gratt. 299, 311, 315 (ad-
§ 1109 SUPPORTING A WITNESS. [Chap. XXXVI
§ 1109. Same : (5) After Contradiction by other 'Witnesses. Contradiction
by opposing witnesses has for its purpose to show an error by the first wit-
ness, so that from this error may be argued a capacity to commit errors
vipon other points as well (ante, § 1000). But here, as with the mode of
impeachment just dealt with, it is only by contingency that Moral Character
may be thought to be reflected upon. Thus, the same arguments pro and
con as in the foregoing subject may here be raised, except that, since the
insinuation against Moral Character is here more remote, the grounds for
treating it as in issue and admitting rebutting evidence of good character are
weaker. The mixed arguments of logic and policy for rejecting it are seen
in the following passages :
1839, Earle, J., in Fan- v. Thompson, Cheves S. C. 43: " It is obvious that it [i. e.
proof that the facts ai-e otherwise] may be resorted to without in the slightest degree
impugning the veracity of the witness, so long as men view the same transaction in
diiierent lights, form different conclusions from the same premises, pay more or less
attention to the same occurrences taking place before their eyes, and have memories
more or less retentive."
1884, Walker, J., in Tedens v. Schumers, 112 111. 263, 266 : "If the practice sanctioned
the calling of witnesses to prove general character whenever a witness is contradicted, it
would render trials interminable. The greater portion of the time of courts would be
liable to be engaged in the attack and support of the characters of witnesses. If per-
mitted, each of the contradicting witnesses would have the same right; and not only so,
but all of the supporting witnesses on each side contradicting each other would be en-
titled to the same privilege. It is thus seen that the rule must be limited to cases where
witnesses are called to impeach the general character of a witness; otherwise, instead
of reaching truth by the verdict, it would tend to stifle it under a large number of side
issues calculated to obscure and not to elucidate them."
1884, Holmes, J., in Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 : "The purpose and
only direct effect of the [impeaching] evidence are to show that the witness is not to be
believed in this instance. But the reason why he is not to be believed is left untouched.
That may be found in forgetfulness on the part of the witness, or in his having been
deceived, or in any other possible cause. The disbelief sought to be produced is per-
fectly consistent with an admission of his general character for truth, as well as for the
other virtues ; and until the character of a witness is assailed, it cannot be fortified by
evidence."
No Court favoring admission seems to have attempted a reasoned justification
of its policy ; and the great majority of jurisdictions agree in excluding
such evidence.^
missible, where " material facts " are the subject impeachmeut upon her assertion that she ha"d
of the error); W. Va.: 1899, State y. Staley, 45 not kept company with other men; but this
W. Va. 792, 32 S. E. 198 (admissible). would be justifiable under the principle of § II06,
1 Eng.: 1808, Durham w. Beaumont, 1 Camp, ante); Conn.: 183-3, Rogers v. Moore, 10 Conn.
207 (a mere conflict of testimony; excluded); 14 (excluded); F/a.: 1886, Saussv v. R. Co., 22
Ala.: 1853, Newton B. Jacksou, 23 Ala. 335, 344 Fla. 327, 330 (excluded); Ga.: 1895, Miller i>.
(admitted) ; 1875, Mobile & G. R. Co. v. Wil- R. Co., 93 Ga. 480, 21 S. E. 52 (excluded ; good
liams, 54 id. 168, 172 (excluded ; the preceding opinion by Bleckley, C. J.) ; 1897, Bell v. State,
case not cited) ; 1894, Funderberg v. State, 100 100 id. 78, 27 S. E. 669 (excluded) ; 1899, Ander-
id. 36, 14 So. 877 (excluded) ; 1900, Turner w. son v. R. Co., 107 id. 500, 33 S. E. 644 (ex-
State, 124 id. 59, 27 So. 272 (mere contradic- eluded); III.: 1884, Tedens v. Schumers, 112
tion, not used to impeach, insufficient); 1900, 111. 263, 266 (excluded; see quotation supra);
Bell V. State, ib. 94, 27 So. 414 (excluded); Ind. : 1863, Pruitt c. Cox, 21 Ind. 15; Johnson
1901, Lusk V. State, 129 id. I, 30 So, 33 (bas- v. State, ib. 329 (excluded); 1881, Presser v.
tardy; complainant's character admitted, after State, 77 id. 274, 280 (same); 1882, Brauu v.
1314
§§ 1100-1144] AFTER CONTRADICTION. § HH
§ 1110. Same ; Other Principles distinguished. The witness' good moral
character, though it may be inadmissible in some of the foregoing situations,
may nevertheless be receivable from some other point of view, — particularly
in a charge of rape {ante, § 62), seduction {ante, § 76), or defamation {ante,
§§ 66, 76).^ Whether the proof of the character shall be by reputation
(post, § 1608) or by personal opinion {post, § 1980) involves still other
principles.
§ 1111. (&) Discrediting the Impeaching 'Witness; Cross-Examining to
Rumors of Misconduct. In the foregoing sections, the object of the evidence
offered in support was to establish the witness' good character, in direct denial
of its impeachment, by bringing other witnesses to testify to the good reputed
character. But the existence of the bad reputed character may also be denied
indirectly, i. e. by discrediting the impeaching witness. This process raises
certain special questions of its own.
(1) One mode of doing it is to impeach the impeaching witness' own moral
character, or bias, or other quality affecting credibility, thus making the im-
peach er in turn an impeached witness. How far this can be done, with spe-
cial reference to an impeaching witness, and to the necessity of ending the
mutual recrimination at some reasonable point, has been already considered
{ante, § 894).
(2) Another and more effective mode is to probe the grounds of the im-
peacher's knowledge as to the other's bad reputation, by requiring him to
specify the particular rumors of misconduct, or statements of individuals, that
have led him to assert the existence of the bad reputation. In theory, this
rests upon the general principle {ante, § 994) that every witness may be
discredited by exhibiting the inadequacy of his sources of knowledge. If a
Campbell, 86 id. 516 (same); 1886, Louisville 5 Or. 164, 167 (admissible); 1882, Sheppard v.
N. A. & C. R. Co. V. Frawley, 110 id. 18, 27, 9 Yocum, 10 id. 402, 413 (by implication overrul-
N. E. 594 (same); la.: 1887, State v. Archer, ing the preceding decision); Pa.: 1839, Brad-
73 la. 320, 323, 35 N. W. 241, se.mble (excluded) ; dee v. Brownfield, 9 Watts 124 (excluded ; even
Ktj.: 1859, Vance D.Vance, 2 Mete. 581 (ex- though the error involve a falsity) : S. C. ;1839,
eluded); La.: 1895, State v. Desforges, 48 La. Farr v. Thompson, Cheves 37, 43 (excluded) ;
An. 73, 18 So. 912 (admissible, where a direct 1860, Chapman v. Cooley, 12 Rich. 654, 660,
conflict exists and practically the integrity and semble (same) ; 1892, State i;. Jones. 29 S. C. 201,
veracity of the witnesses are involved) ; Md. : 230, semble (same) ; Tenn. : 1837, Richmond v.
1869, Vernon v. Tucker, 30 Md. 456, 462 (ex- Richmond, 10 Yerg. 343, 345 (admitted ; but
eluded) ; 1873, Davis v. State, 38 id. 15, 50, 59, here the argument was that there had been false
74 (allowable, after a showing of error on a swearing); Tex.: 1894, Texas & P. R. Co. v.
material point ; no authority cited ; Stewart and Raney, 86 Tex. 363, 25 S. W. 11 (excluded);
Bowie, JJ., diss., citing the preceding case) ; . 1900, Jacobs v. State, 42 Tex. Cr. 353, 59 S. W.
Mass.: 1829, Russell v. CofSn, 8 I'ick. 143, 1.54 1111 (excluded); U. S.: 1898, Spurr v. U. S.,
(excluded) ; 1855, Heywood v. Reed, 4 Gray 574, 31 C. C. A. 202, 87 Fed. 701 (excluded) ; 1902,
576, 581 (excluded ; although incidentally the Louisville & N. R. Co. v. M'Clish, 53 id.
witness appeared as fraudulent assignor of prop- 60, 115 Fed. 268 (excluded; good opinion by
erty); 1856, Brown v. Mooers, 6 id. 451 (ex- Day, J.); Vi.: 1892, Stevenson v. Gunning's
eluded; even though knowledge of the falsity Estate, 64 Vt. 601, 60S, 25 Atl. 697 (excluded;
appears) ; Com. v. Ingraham, 7 id. 46, 48, semble in effect overruling the apparently opposite rul-
(inadmi.ssible) ; 1884, Gertz i;. Fitchburg R. Co., ing in Mosley v. Ins. Co., 55 id. 142, 1.52 (1882),
l:i7 Mass. 77 (see quotation supra) ; iV.y.;1838, where the error involved a perjury) ; Va. : 1877,
I'eople V. Rector, 19 Wend. 569, 586 (excluded) ; George v. Pilcher, 28 Gratt. 299, 311, 315 (ad-
1842, People «. Hulse, 3 Hill 309, 313 (same); mitted); Wash.: 1896, State v. Nelson, 13
1847, Starks v. People, 5 Den. 106, 108 (same) ; Wash. 523, 43 Pac. 637 (excluded).
N. C. : 1854, March v. Harrell, 1 Jones 329, ^ Compare generally §§ 55-79, ante, for the
331 , semble (admitted) ; 1874, Isler v. Dewey, 71 use of character other than in impeachment of a
N. C. 14 (same) ; Or. : 1874, Glaze v. Whitley, witness.
1315
§ 1111 SUPPORTING A WITNESS. [Chap. XXXVI
witness to another's bad reputation is speaking from a veritable knowledge of
such a repute, he ought to be able to specify some of the rumored misconduct
or some of the individual opinions that have gone to form that reputation. If
he cannot do this, his assertion may be doubted :
16Si, Braddon's Trial, 9 How. St. Tr. 1127,1170; Witness: " The Wednesday and
Thursday both, It was the common talk of the town all day long " ; Withins, J. : " Name
one that spake it to you "; Witness : " I cannot ; it was the women as they came in and
out of my shop, and as they went up and down the town " ; Counsel, Mr. Wallop : " My
lord, we leave it with your lordship and the jury ; he swears he then heard such a report " ;
Withins, J. : " Do you believe that this man can speak truth when he says it was reported
all about their town for two days before it was done, and yet cannot name one person that
spake it ? " ; Witness . " I keep a public shop, and do not take notice of every one that
comes in and out, to remember particularly " ; Witliins, J. : " You heard it up and down
the town, you say ; surely you might remember somebody."
1849, Fletcher, J., in Bates v. Barber, 4 Cush. 109 : " In point of principle it would
seem proper to make this inquiry, because the witness is called on to state what is the
i-eputation of the person impeached, what is his character for truth by report, what is said
as to his character for truth ; and it may be very material and important to know from
whom in particular the reports come, and what persons they were who spoke against the
character of the person impeached. Upon such inquiry, it may appear that all the per-
sons from whom the witness has heard anything against the person impeached are his
personal enemies, and so situated in regard to him that their speeches and reports against
him are entitled to no consideration whatever. The inquiry may also be proper in order
to test the extent and means of information possessed by the witness in regard to the
character of the party impeached for truth and veracity; by allowing such inquiry, it may
perhaps be made to appear that the imputed bad character is wholly fictitious and got up
for a particular purpose."
1865, Cooley, J., in Annis v. People, 13 Mich. 517 : " There is no case where a thorough
cross-examination is more important to an elucidation of the truth than where a witness
is giving an answer to a general question which calls both for matter of fact and matter
of opinion. If a witness can shield himself behind an answer so general that, even if
false, the person who knows that fact cannot testify with definiteness on the subject, we
may well believe that bad men will frequently resort to this species of evidence where the
truth will not warrant it. And in nothing may parties be more easily mistaken than in
judging of the general reputation of another for truth and veracity. They may either be
mistaken in assuming the speech of one or two to be the voice of the community ; or they
may confound a reputation for something else with a reputation for untruth ; or they may
misconstrue reports ; or they may honestly be mistaken in regard to their import. Noth-
ing is more common in practice than to see a witness placed upon the stand to impeach
the general reputation of another for veracity, when a cross-examination demonstrates
that the reports only relate to a failure — probably an honest one — to meet obligations,
while the party's real reputation for truth is above suspicion. Nothing short of a cross-
examination which compels the impeaching witness to state both the source of the reports
and their nature will enable the party either to test the correctness of the impeaching
evidence or to protect the witness who is assailed, if he is assailed, unjustly."
The objections to such an inquiry are, first, the consumption of time and
confusion of issues, and, secondly, the multiplication of petty scandal and the
creation of hard feeling between the impeached witness and the innocent
third persons whose names are brought into the dispute against their will
and whose remarks may have been made in confidence. The first objection
is no more serious here than for other cross-examination of all sorts. But
1316
§§ 1100-1144] DISCEEDITING THE IMPEACHER. §1111
the second objection undoubtedly discloses one of the unfortunate and de-
grading features of character-testimony. An answer, to be sure, is that,
since testimony based on personal knowledge is now almost universally
excluded {post, § 1980), and since reputation-testimony is notoriously so
easily fabricated and its fabrication can be exposed only in this way, it
would be inexpedient to destroy the only security against false impeaching
testimony. The reply, however, to this may well be that it is better to go
back to personal-knowledge testimony rather than to give a monopoly to
a kind so easily fabricated and so inseparable from the vice of retailing
neighborhood- scandal in court. But the reasons above quoted are universally
accepted (except by a few Courts which do not appreciate the reasoning) ;
on cross-examination of the impeaching witness he may be asked as to the
specific persons who have spoken against the impeached witness, and (usu-
ally) as to what misconduct they specified.^
This kind of discrediting examination is to be distinguished from the prelim-
inary direct examination which some Courts require before a witness to repu-
tation may speak as qualified' (ante, § 691). The principle beneath both is
the same. But there the object is to ascertain whether he is a qualified
witness at all, while here he has already qualified and spoken, and the object
is to discredit the sources of his knowledge. Distinguish also the cross-
examination of a witness to good reputation, concerning rumors of misconduct
which he has heard (dealt with ante, § 988) ; this rests on an application of
the same general principle, but it aims at the impeachment, not the support,
of the impeached witness.
(3) May the impeaching witness, after naming certain persons or reports,
1 Except as otherwise noted, the following Pickens u. State, 61 Miss. 563, .566 ; 1885, French
rulings allow cross-examination as to tiie per- v. Sale, 63 id. 386, 393; Mo.: 1850, Day r.
sons speaking against the impeached witness : State, 13 Mo. 422, 426, semble (excluded ; appar-
Can. : 1900, Messenger v. Bridgetown, 33 N. Sc. ently treating it as an attempt to introduce
291 (cross-examination of a witness to bad repu- hearsay); N. H.: 1838, State v. Howard. 9
tation, as to the opinion of "individual neigh- N. H. 487; 1851, Titus v. Ash, 24 id. 331;
bors," allowed) ; Ala. i 1873, Sonneboru v. N. Y. : 1827, Lower o. Winters, 7 Cow. 265 ;
Bernstein, 49 Ala. 171 ; 1884, Jackson v. State, 1830, People v. Mather, 4 Wend. 257, per Marcy,
77 id. 18, 24 (whether he had not heard good Sen.; 1835, Bakeman v. Rose, 14 id. 105, HO,
reports from some, allowed); Conn.: 1849, 18 id. 150 (here also direct examination allowed,
Weeks o. Hull, 19 Conn. 377 (good opinion by in tlie trial Court's discretion, because the im-
Church, C. J.) ; Fin.: 1878, Robinson i). State, peaching witness had volunteered the statement
16 ria. 835, 840; Ga.: Code 1895, § 5293 that some persons spoke for, and some agiiin.st,
("opinions of single individuals " may only be the other witness) ; N. C: 1872, State v. I'er-
asked about " upon cross examination in seeking kins, 66 N. C. 126; Oh.: 1862, McDermott v.
for the extent and foundation of the witness' State, 13 Oh. St. 335 (allowable to " ascertain
knowledge") ; la. : 1897, State v. Allen, 100 la. from the witnesses their means of knowing her
7, 69 N. W, 274 (but liere excluding questions general reputation, tlie origin and character of
in wliich the examiner himself specified certain any and all reports prejudicial to her, the extent
persons); Ki/.: 1902, Barnes w. Com., — Ky. — , to which those reports had prevailed, the time
70 S.- W. 827 (and the answers are of course not to when and the persons from whom the witnesses
be excluded because they involve unfavorable had heard them, and, in short, everything wl)ich
minors); Me.: 1841, Pliillips v. Kingfield, 19 reflects the nature and general prevalence of
Me. 37.1, 381 ("for how long a time, and how the reputation ") ; Vt.: 1858, Willard v. Good-
generally, the unfavorable reports had prevailed, enough, 30 Vt. 396 ("the cross examination
and from what persons he has heard them") ; may extend to every matter of fact within the
Mich.: 1865, Annis v. People, 13 Mich. 511,516 witness" knowledge bearing on the fact of the
(iiUowing also questions as to what specific per- bad character to which he has testified "). Com-
sons said; see quotation SMp7-a ); 1874, Hamilton pare the rule about a divided reputation (post,
V. People, 29 id. 173, 185, semble; Miss.: 1884, §§ 1612, 1613).
1317
§1111 SUPPORTING A WITNESS. [Chap. XXXVI
be contradicted and shown to speak incorrectly on those points ? The answer
to this is usually negative,^ on the theory that the contradiction concerns a
collateral point {ante, § 1004). But this result seems unsound, for the denial
can usually be summary and effective, and the effect on the impeaching wit-
ness' credit is so direct that it cannot be termed collateral {ante, § 994).
§ 1112. (c) Explaining away the Bad Reputation; (1) Reputation due to
Malice, etc. ; (2) Witness' Veraciousness unimpaired ; (3) Witness Reformed.
Still another mode of meeting an impeachment of bad reputed character is,
not to deny it directly by showing good reputed character, nor to deny it
indirectly by discrediting the impeacher, but to explain it away by circum-
stances which diminish its significance, ou the general logical principle of
Explanation (ante, § 34).
(1) Conceding the reputation to exist, it may be argued that the reputation
is untrustworthy because it has originated in the malice of a few persoiis or
because it rests on supposed facts of conduct which render it unmerited. But
this course is open to all the evils of contradiction on collateral points {ante,
§ 1002), and would not be allowed;^ except so far as it can be pursued on
cross-examination of the reputation- witness (according to § 1111, par. 2, ante).
(2) Conceding the reputation, in a jurisdiction where general bad character
is relevant {ante, § 923), it may still be claimed that the witness' reputation
for the trait of veracity remains unimpaired, so that the general bad character
does not signify anything against his credibility. This seems to be generally
conceded ; ^ it does not involve proof of particular facts, and therefore is not
obnoxious to other principles {ante, § 979).
(3) Conceding the reputation, and the actual character as then indicated
by it, the claim may be made that the witness has since that time reformed,
and has exhibited and now possesses the disposition of a generally good or
veracious man. This, so far as it can be shown by reputation and without
going into particular facts, would seem to be .allowable ; ^ though usually the
same purpose is practically attained by simply adducing opposing witnesses
to deny the bad character.
" 1873, Sonneborn v. Bernstein, 49 Ala. 172 ; ' ]838, People v. Eector, 19 Wend. 569, 579,
18S9, Robbins v. Spencer, 121 Ind. 596, 22 N. E. 588 ; 1883, Anon., 1 Hill S. C. 258 (O'Neall, J. :
660 ; 1862, McDermott v. State, 13 Oh. St. 3. "the party in whose favor he has testitied may
^ 1890, HoUingsworth v. State, 53 Ark. 387, inquire whether, notwithstanding his bad char-
393, 14 S. W. 1 (that the reputation was due to acter in other respects, he has not preserved his
a specific vice only, excluded, on the theory that character for truth ; and if this inquiry is an-
" it would extend controversies beyond all rea- swered affirmatively, the jury may seize upon it
son " to permit such issues to be raised, even on as the floating; plank in his general wreck, and
cross-examination of the impeaching witnesses ; believe him ") ; 1851, Wayne, J. (the others not
the latter clause is unsound) ; 1830, People v. touching the point), in Gaines v. Relf, 12 How.
Mather, 4 Wend. 257 (evidence was excluded, U. S. 555. But compare the following: 1898,
to explain away evidence of a witness' bad repu- Barnwell «. Hannegan, 105 Ga. 396, 31 S. E.
tation, that the reports against him originated 116 (must involve general character only, under
from a particular body of men who had spread 0. C. § 5293).
false rumors as to certain conduct ; good opinion ^ See the cases cited post, § 1117.
by Marcy, Sen.).
1318
§§ 1100-1144] AFTER PAETICULAR MISCONDUCT. § 1116
B. Eehabilitation aftee Impeachment by Particular Acts of
Misconduct.
§ 1116. Denial of the Pact; Innocence of a Crime admitted on Cross-
ezaminatiou or proved by Record of Conviction. There are but two ways,
as already noted, in which a witness' particular acts of misconduct can be
proved to discredit his character, — his own admission on cross-examination
{ante, § 981), and a record of a judgment of conviction for a crime {ante,
§ 980). Obviously, he cannot deny a fact shown by the former mode.^ But
may he deny a fact attempted to be established in the latter mode ? The
thing actually proved against him is the judgment of conviction ; but is the
judgment conclusive to establish the fact of the crime ? (1) The technical
fact that it is here used as between other parties ought not to be an objection ;
for it is not used against him as a party or as concluding him in respect to a
legal right. Moreover, if this objection does not prevent the judgment being
offered in evidence, as it certainly does not, it need not prevent the usual
effect of conclusiveness being allowed for it. It is therefore correct and not
unfair to exclude any attach hy other witnesses on the judgment. But the
rule against proving particular facts by outside testimony {ante, §§ 979, 1002)
is not the proper ground for this exclusion ; that applies only to the party
offering to raise an issue ; it cannot apply to exclude testimony in denial by
one against whom testimony to a fact has been offered ; to allow one party to
adduce evidence and to forbid the other to refute it would be grossly unfair.^
(2) This being so, and the judgment being conclusive, the witness' own
denials of guilt, on re-examination, would be equally inadmissible ; '^ though
it has sometimes been thought, proceeding in part on the erroneous theory
just noted, that they are receivable.* (3) May not a pardon for the crime
be admitted as negativing guilt ? If a pardon were always granted on the
ground of discovery of innocence, the answer would clearly be in the affirm-
ative, especially since the objection of raising new issues by other witnesses
is here practically obviated. But as a pardon has no such necessary signifi-
cance (since it is usually granted for other reasons than innocence). Courts
would probably be found excluding it.^ Nevertheless, it seems more proper
to conclude that, since a pardon may signify innocence, it should be received.
Certainly a reversal of the judgment would be.^
* See the cases in notes 3 and 4, infra. impeaches, but that the record of conviction is
' For the right to explain, see the next sec- conclasive of the offence),
tion. Where the witness has not admitted but * 1902, Reed i\ State, — Nebr. — , 92 N. W.
has denied the imputation on cross-examination, 321 ; 1878, Sims v. Sims, 75 N. Y. 473 (on the
there is no occasion to call other witnesses to theory that the conviction is used as evidence uf
corroborate this denial : 1860, Tolman v. John- the crime, but is not conclusive in a civil case ;
stone, 2 F. & F. 66 (Cockburn, C. J., after con- and yet the opinion in a preceding passage main-
suiting the other Judges). tains that it is the sentence and not the crime
3 1874, State v. Lang, 63 Me. 215; 1876, that disqualifies).
State V. Watson, 65 id. 79; 1878, Com. v. Gallar » On the analogy of the cases cited ante,
gher, 126 Mass. 55 ; 1884, Gertz v. Fitchburg R. § 980.
Co., 137 id. 77, 80; 1897, Lamoureux v. R. Co., « 1899, State v. Duplechain, 52 La, An. 448,
169_id. 338, 47 N. E. 1009 (quoted in the next 26 So. 1000 (that the conviction had been set
section); 1863, Gardner v. Bartholomew, 40 aside, and the case nolle prossed, allowed) ; and
Barb. 326 (on the theory that it is the crime that see the intimations In cases cited ante, § 980.
1319
§ 1117 SUPPOETING A WITNESS. [Chap. XXXVI
§ 1117. Same: Explaining away the Fact; Reformed Good Character in
Support. Conceding the fact of misconduct, as shown by the witness' own
cross-examination or by a judgment of conviction of CTim.e,wha,t explanations
can be made, to diminish or repel the inference of bad moral character sug-
gested thereby ?
(1) As against misconduct proved by either of the above modes, the infer-
ence of bad character may be met by testimony denying the fact to be
inferred, i. e. by affirming the witness' good reputation. Tliis kind of evidence
has been already considered -(a?t<e, § 1106).
(2) Again, equally after either of those modes of proof, the claim may be
made that, while the moral character may then have been bad, as indicated
by the fact of misconduct, nevertheless the witness has reformed and possesses
now a good character. This can certainly be done by the ordinary method
of showing his present reputation ; ^ and may also properly be done (the
objection of confusion of issues not applying) by the witness' own statement
on re-examination.^
(3) After proof of a judgment of conviction, may the witness be allowed
to explain the circumstances of the offence, as extenuating the act and dimin-
ishing its significance ? The conclusiveness of the judgment seems here to
be no objection. It is true that no issue could be allowed to be joined on the
witness' explanations, and thus there would be no security against false state-
ments by him. Nevertheless, having regard to the publicity of one's discredit
on the stand and the necessity of guarding against the abuses of the impeach-
ment-process and of preventing the witness-box from becoming a place of
dread and loathing, it would seem a harmless charity to allow the witness to
make such protestations on his own behalf as he may feel able to make with
a due regard to the penalties of perjury.^
(4) When, by the allowable process (ante, § 981) of questioning upon cross-
examination, discrediting facts are brought out, there is usually but one type
^ Cases cited ante, § 1 106, and the following : circumstances. This evidence was excluded.
1817,11. 0. Clarke, 2 Stark. 241 (quoted ante. Logically, there is no doubt that evidence teud-
§ 1106); 1886, Mynatt v. Hudson, 66 Tex. 66, iug to diminish the wickedness of tlie act, like
68, 17 S. W. 396. evidence of good character, which is admissible,
2 1855, Holmes s. Stateler, 17 111. 453 (reform does meet.as far as it goes, the evidence afforded
shown); 1881, Conley v. Meeker, 85 N. Y. 618, by the conviction, since that discredits only by
semUe (conviction for crime shown ; the witness' tending to show either general bad character,
statement that he had reformed and led an honest or bad character of a kmd more or less likely
and orderly life, admitted) ; 1898, Tennessee C. to be associated with untruthfulness. Sever-
I. & R. Co. V. Haley, 29 C. C. A. 328, 85 Vei. theless, the conviction must be left unexplained.
5-34 (that an ex-convict was a" trusty," allowed). Obviously, the guilt of the witness cannot be
^ Accord: 1899, South Cov. & C. S. R. Co. v. retried. It is equally impossible to go behind
Beatty, — Ky. — , 50 S. W. 239 (witness allowed the sentence to determine the degree of guilt,
to explain circumstances of his arrest and con- Apart from any technical objection, it is ira-
viction) ; 1900, State «. McClellan, 23 Mont, practicable to introduce what may be a long
532. 59 Pac. 924 (explanation why he had been investigation of a wholly collateral matter into
ill jail, allowed) ; 1838, Chase v. Blodgett, 10 a case to which it is foreign, and it is not to
N. H. 22, 24. Contra: 1897, Lamoureux v. R. be expected or allowed that the party produc-
Co., 169 Mass. 338, 47 N. E. 1009 (Holmes, J. : ing the record should also put in testimony to
" Upon redirect examination the witness was meet the explanation ready in the mouth of the
asked to state the circumstances, the evidence convicted person. Yet, if or.e side goes into the
being offered to show the extent of the wick- matter, the other must be allowed to also ").
edness involved in the act, and to show the
1320
§§ 1100-1144] AFTER PARTICULAR MISCONDUCT. § 1119
of fact that admits on principle of any explanation, i. e. whose force may be
obviated, not by denial, but by the production of other facts, namely, the
admission of an indictment or arrest or other charge of misconduct. In the
jurisdictions where this is allowed to be brought out on examination {ante,
§§ 982, 987), it is no more than fair that the witness should be allowed to
explain that the arrest or charge was unfounded ; for the arrest or indict-
ment is only an ex parte mode of inducing belief in the objective fact, i. e. the
misconduct itself. But it would introduce all the evils of collateral issues
{ante, § 979) if the showing were allowed to be made by extrinsic testimony ;
moreover, as the original fact is brought out on cross-examination of the
witness himself, fairness is satisfied by confining the explanation within the
limits of a re-examination of the witness himself.*
(5) As for other facts drawn out on cross-examination, supposing them
open to any real explanation, it would doubtless be desirable to allow, in the
trial Court's discretion, such explanation of them by the witness as seems
worth listening to and does not require too much time.* In the same way,
where such facts have improperly been received or insinuated on the cross-
examination of a supporting witness to the good reputation of the impeached
witness {ante, § 988), an explanation or a denial from the impeached witness
himself should be allowed, because the opportunities for abuse in that use
of cross-examination are great and every means of counteracting them should
be freely allowed.^
G. Rehabilitation after Impeachment by Bias, Interest, Self-
CONTEADICTION, ADMISSIONS.
§ 1119. Denial of the Pact ; Explaining a'way the Pact ; Putting in the ■whole
of a Conversation, etc. ; Good Character in Support. The modes of rehabilita-
tion after impeachment by evidence of bias, interest, or self-contradiction, are
better considered elsewhere. A brief summary here suffices :
(1) A denial of the fact of bias or the like, by other testimony, is always
allowable ; for any testimony of the opponent admissible to prove a discred-
* 1795, E. V. Jackson, Dublin, Ridgeway's defendant's witness had been discharged by the
Rep. 63, 87 (the witness was asked whether he former for drunkenness ; plaintifi's testimony
had been tried for perjury, and was allowed to on cross-examination as to specific acts of wit-
explain that he had been acquitted and on what ness' drunkenness, allowed to be contradicted
grounds : here a witness to corroborate him as by witness) ; 1898, Ellis v. State, 152 Ind. 326,
to these facts was also admitted) ; 1834, B. v. 52 N. E. 82 (testimony " in excuse and extenu-
Noel, 6 C. & P. 336 (the witness having been ation," excluded) ; 1886, State v. Starnes, 94
charged with keeping a gaming-house, he was N. C. 976, semble (allowing explanation of par-
allowed to explain that he was innocent) ; 1882, ticular misconduct; but here the question put
Driscoll V. People, 47 Mich. 417, 11 N. W. 221 on cross-examination was otherwise objection-
(explaining the reasons for an arrest, allowed) ; able). Compare the rule for curatioe irreJevan-
1892, HiU V. State, 91 Tenn. .521, 523, 19 S. W. cies (ante, § 15); and the rule for a witness'
674 (protestation of innocence of an offence for right in general to volunteer explanations (ante,
which witness had been indicted, allowed) ; § 785).
1902, Stewart y. State, — Tex. Cr. — , 67 S. W. « 1882, Abernethyi). Com., 101 Pa. 322, 328
107 (witness allowed to state the disposal of (where, on cross-examination of a witness to
indictments used to discredit him, but not to good character, derogatory facts had come out,
explain the details of the charges). an explanation of them was allowed in an-
' 1899, Sayles u. Fitzgerald, 72 Conn. 391, swer).
44 Atl. 733 (to show bias, plaintiff testified that
1321
§ 1119 SUPPORTING A WITNESS. [Chap. XXXVI
iting fact must of course in fairness be allowed to be met by testimony-
denying the alleged fact. The only apparent (not real) exceptions could be
the cases of proof by record of conviction (where the principle of conclusive-
ness of judgments applies) and of cross-examination by the opponent ; but the
former does not here come into use, and the latter involves the rule in regard
to improper contradictions on collateral matters (dealt with ante, § 1007),
and in regard to self-contradictions on collateral matters (dealt with ante,
§ 1046).
(2) The modes of explaining away, impeaching facts of the present sorts
are considered already elsewhere, — including their application to evidence
of Bias, Interest, or Corruption {ante, §§ 952-969); to evidence of Self-Con-
tradictions or Inconsistent Statements {ante, §§ 1044-1046) ; to evidence of
Admissions {ante, § 1058) ; and in regard to all of these, by offering good
character in support of the impeached witness {ante, §§ 1107-1109).
There remains now to be considered the method of supporting a witness,
after any kind of impeachment, by prior consistent statements.
D. Eehabilitation by Prioe Consistent Statements.
1. Witnesses in General.
§ 1122. General Theory. Under the head of Explanation, in dealing with
the various modes of Impeachment (character, bias, interest, corruption, con-
tradiction, self-contradiction), it would have been logically proper to consider,
with reference to each of these modes, how far the effect of the impeaching
evidence might be explained away or rebutted by the circumstance that the
witness had, at a former time, told a consistent or similar story. Whether he
could in this manner effect anything towards rehabilitating his credit must
depend on the kind of impeaching evidence that has been offered; for
clearly this mode of explanation may be relevant and forceful for some kinds
of impeaching facts, but not for others. It is, however, more convenient, for
the sake of clearness and comparison, to consider the various uses of this
kind of explanatory evidence here in one place.
§ 1123. History. Down through the 1700s the notion prevailed that a
witness could always be corroborated, without any limitation, by the circum-
stance of having made at other times statements consistent with the testimony
delivered by him in court. This practice was based on a loose instinctive
logic, popular enough to-day, that there is some real corroborative support
in such evidence ; and the only objection then thought of was the Hearsay
rule.i This rule does not in truth apply to prohibit such evidence {post,
^ Ante 1726, Gilbert, Evidence, 68, 1.50 the other on the same inducements ; but what
(" Though hearsay may not be allowed as direct a man says in discourse without premeditation
evidence, yet it may be in corroboration of a or expectation of the cause in question is good
witness' testimony, to show that he affirmed the evidence to support him "). The following in-
same thing before on other occasions and that stances occur: 1679, Knox's Trial, 7 How. St.
the witness is still consistent with himself; [he Tr. 763, 790; 1696, Sir John Freiud's Trial, 13
then makes an exception for former sworn testi- id. 32; 1753, Squires' TrLil, 19 id. 270; 175+,
mony,] for if a man be of that ill mind to swear Canning's Trial, ib. 397 (of a defendant not
falsely at one trial, he may well do the same on testifying) ; 1767, Buller, 'Trials at Nisi Prius,
1322
§§ 1100-1144] PEIOE CONSISTENT STATEMENTS. § 1124
§§ 1131, 1792), as is now clearly understood ; but there are other and serious
objections to its indiscriminate admission in chief, and before any impeach-
ment whatever. These objections began to be felt and offered by the end
of the 1700s; 2 but it was not until the 1800s that any definite discrimina-
tions were settled upon and accepted ; and even to-day there is much differ-
ence of judicial opinion as to the extent to which such evidence may be
considered.
§ 1124. Offered (1) in Chief, before any Impeachment. When the witness
has merely testified on direct examination, without any impeachment, proof
of consistent statements is unnecessary and valueless. The witness is not
helped by it ; for, even if it is an improbable or untrustworthy story, it is not
made more probable or more trustworthy by any number of repetitions of it.
Such evidence would be both irrelevant and cumbersome to the trial :
1836, Story, J., in Ellicott v. Pearl, 10 Pet. 439 : " His testimony under oath is better
evidence than his confirmatory declarations not under oath; and the repetition of his
assertion does not carry his credibility further, if so far as his oath."
1878, Reade, J., in State v. Parish, 79 N. C. 612 : " It can scarcely be satisfactory to>
any mind to say that, if a witness testifies to a statement to-day under oath, it strengthens-
the statement to prove that he said the same thing yesterday when not under oath. . . .
The idea that the mere repetition of a story gives it any force or proves its truth is coui-
trary to common observation and experience that a falsehood may be repeated as oftea
as the truth. Indeed it has never been supposed by any writer or judge that ths-
repetition had any force as substantive evidence to prove the facts, but only to remove
an imputation upon the witness. ... If he stood before the court unimpeached, it was
unnecessary and mischievous to encumber the court and oppress the defendant with his
garrulousness out of court and when not on oath." ^
294 (like Gilbert); 1770, Boston Massacre 48, 39 Pac. 204; Shamp ii. White,, ibi 220, 39
Trial, Chaudler's Amer. Crim. Tr. I, 303, 361 ; Pac. 537; Conn.: 1830, State v. DeWolf, 8
aud cases cited in § 1364, post (history of the Conii. 93, 100 (left undecided); 1896, Builders'
Hearsay rule). Lntterell v. Reynell, 1 Mod. 282 Co. v. Cox, 68 id. 380, 36 Atl. 797 (excluded) ;
(1671), ia usually cited as an instance of the old 1898, Baxter v. Camp, 71 id. 245, 41 Atl. 803
rule ; yet apparently it represents an aspect of (same) ; 1900, Palmer v, Hartford D. Co., 73 id.
the rule still acknowledged as law, namely, that 182, 47 Atl. 125 (same); Ind.: 1837, Coffin v.
an accomplice's similar statements, madebefore Anderson, 4 Blackf. 395, 398; 1882, Bristor
promise of pardon, are admissible to rebut the v. Bristor, 82 Ind. 276; Ky.: 1871, Sullivan
inference that his testimony was composed v. Norris, 8 Bush 519 (deposition) ; 1898,
under influence of the promise {post, § 1128). Franklin v. Com., 105 Ky. 237, 48 S. W. 986 ;
2 1776, Halliday v. Sweeting, cited 3 Dong. La.: 1899, State v. Carter, 51 La. An. 442, 25
El. C. 163 (former consistent statements, ad- So. 385; 1903, State v. Wheat, 111 La. ,35
mitted at the trial; but held inadmissible on a So. 955; Mp.: 1831, Ware v. Ware, 8 Greenl.
motion for a new trial). The MS. cases cited 55; 1853, Smith v. Morgan, 38 Me. 468; 1875,
by McNally (Evidence, 378) indicate that in Ire- Sidelinger v. Bucldin, 64 id. 371; Mass.:
land, by 1795, the admission was being fre- 1846, Ueshon v. Ins. Co., 11 Mete. .199, 209;
quently opposed ; but it was maintained through 1868, Com, v. James, 99 Mass. 438, 440,
the century. semUe; 1897, Burns v. Stuart, 168 id. 19, 46
^ Accord (and many of the cases in the en- N. E. 399; Miss.: 1901, Wilhams v. State, 79
suing sections also concede this): 1783, R. v. Miss. 555, 31 So. 197; Mo.: 1883, State v.
Parker, 3 Doug. 242 (excluded; but this case Grant, 79 Mo. 113, 133; Mont.: 1903, Parleigh
says nothing as to the conditions on which to-day v. Kelley, — Mont. — ,72 Pac. 756 (absent
such evidence is recognized as admissible)"; attesting witness); N. Y.: 1826, Jackson v.
1811, Redesdale, M. R., in Berkeley Peerage Etz, 5 Cow. 314, 320; 1834, People v. Vane, 12
Case, as cited in Phillipps, Evidence, 5th Am. Wend. 78; 1840, Robb v. Hackley, 23 id. 50;
ed., 307 (not admissible for " confirming " testi- 1900, People v. Smith, 162 N. Y. 520, 56 N. E
mony); Ala.: 1895, Chilton v. State, 105 Ala. 1001; N. C: 1878, State v. Parish, 79 N. C.
98, 16 So. 797; 1895, Sanders v. State, ib. 4, 16 610; 1897, Burnett v. R. Co., 120 id. 517, 26
So. 935 ; 1897, James v. State, 115 id. 83, 22 So. S. E. 819 ; Rittenhouse v. R. Co., ib. 544, 26 S. E.
565; Cal.: 1895, People v. Schmitt, 106 Cal. 922; Pa.: 1823, Henderson v. Jones, 10 S.
VOL. II. -21 1323
§ 1125 SUPPORTING A WITNESS. [Chap. XXXVI
§ 1125. Offered (2) after Impeachment of Moral Character. When a bad
reputation for veracity has been introduced to impeach, proof of consistent
statements is equally irrelevant and useless. Even assuming the existence
of the bad character alleged, a depraved witness may well have repeated a
story consistently. The bad character indicates some probability of imtrust-
worthiness ; the evidence of repetition does not attempt to meet the charge
of bad character or diminish its effect, but evades it by retorting with the
irrelevant fact that the witness has been consistent. A few Courts only
have seen fit to admit the evidence.^
§ 1126. Offered (3) after Impeachment by Inconsistent Statements. The
field in which the controversy is most vigorous and the opposing reasons
most plausible is that of impeachment by prior inconsistent statements. On
behalf of the admission of the supporting evidence, the earlier and conven-
tional argument is that if a contradictory statement counts against the wit-
ness, a consistent one should count for him, — a bit of loose logic which is
natural and plausible :
1815, Tilghman, C. J., in Packer v. Gonsalus, 1 8. & E. 536: " Both being without
oath, one [statement] is as good as the other, and the jury will judge of his credit on the
whole."
1879, Smith, C. J., in Jones v. Jones, 79 N. C. 249 : "The admissibility of previous
correspondent accounts of the same transaction to confirm the testimony of an assailed
■witness delivered on the trial rests upon the obvious principle that, as conflicting state-
ments impair, so uniform and consistent statements sustain and strengthen his credit
before the jury. . . . Again, the accuracy of memory is supported by proof that, at or
near the time when the facts deposed to have transpired and were fresh in the mind of
the witness, he gave the same version of them that he testified to on the trial." '
The answer to this argument is simply that, since the self-contradiction is
conceded, it remains as a damaging fact, and is in no sense explained away
iby the consistent statement. It is just as discrediting, if it was once uttered,
& R. 322, 324 ; 1835, Craig v. Craig, 5 Rawle mitted) ; 1839, Mnnson v. Hastings, 12 Vt. 346,
91 ; 1847, McKee v. Jones, 6 Pa. 42.'5, 429 ; 1877, 347, 350 (excluded, after impeachment as to no
Hester v. Com., 85 id. 139, 158, semble; 1890, knowledge of a Supreme Being or of the obliga-
Crooks V. Bunn, 136 id. 368, 371, 20 Atl. 529; tion of an oath) ; 1841, Gibbs b. Linsley, 13 id.
1897, frazer v. Linton, 183 id. 186, 38 Atl. 208, 215 (same; general bad character). In New
589 ; S. D.: 1 903, Tenney v. Rapid City, — York the evidence was at first received : 1 826,
S. D. — , 96 N. W. 96 ; Tenn. : 1852, Nelson v. Jackson v. Etz, 5 Cow. 314, 320 ; 1834, People v.
State, 2 Swan 237, 258 (the accused's or a wit- Vane, 12 Wend. 78 ; 1838, People v. Rector, 19
ness' deposition before the examining magis- id. 569, 583 (admissible alter " general impeach-
trate, not to be read for him) ; U. H. : 1858, ing evidence ") ; but later decisions repudiated
U. S. V. Holmes, 1 Cliff. lO-t; Va.: 1901, Re- these: 1840, Robb v. Hackley, 23 id. 50. Be-
pass V. Richmond, 99 Va. 508, 39 S. E. 160. sides the above Courts, those mentioned post,
1 1873, Sonneborn v. Bernstein, 49 Ala. 168, § 1130, which admit prior consistent statements
171 (admitted) ; 1888, Mason ii. Vestal, 88 Cal. after ''any impeaching evidence" would of
396, 398, 26 Pac. 213 (excluded) ; 1868, State v. course admit them after an impeachment of -
Vincent, 24 la. 570, 574 (excluded) ; 1853, Gates general character. For their use after impeach-
V. People, 14 111. 433, 438 (left undecided) ; 1873, ment by particular crimes, .see post, § 1131.
Stolp V. Blair, 68 id. 541, 543 (excluded) ; 1875, i This latter argument is unsound, for no one
Sidelinger v. Bucklin, 64 Me. 373, 375 (ex- has ever thought of requiring that the consistent
eluded) ; 1849, State v. Dove, 10 Ire. 469, 473 statements, to be admissible, should have been
(admitted) ; 1854, March v. Harrell, 1 Jones L. made freshly after the event; except in rape
329 (same) ; State v. Thomason, ib. 274 (same) ; cases {post, § 1134).
1823, Henderson ». Jones, 10 S. & R. 322 (ad- i
1324
§§ 1100-1144] PEIOR CONSISTENT STATEMENTS. § 1126
even though the other story has been consistently told a score of times. This
answer has weighed with many Courts :
1835, Gibson, C. J., in Craig v. Craig, 5 Rawle 97: "As rebutting, it caimot be pre-
tended that they disprove the fact of [self-]coutradiotion, or that they remove the impu-
tation of inconsistency ; for it follows not, because the witness had sometimes told the
tale delivered by him at the bar, that he had never told a different one. If it be supposed
that they rebut the inference to be drawn f i-om the fact of contradiction by decreasing its
force, they still leave the witness more exposed than ever to the charge of vacillation ;
and how he is confirmed by being left in a predicament so unfavorable to his veracity is
not easy to comprehend."
1858, Bigelow, J., in Com. v. Jenkins, 10 Gray 488: "It did not relieve the difficulty,
or in any degree corroborate the last story told by the witness, to show that previously he
had made similar statements of the transaction. . . . The utmost that could be claimed
for it in this view would be that it rendered the last statement more probable and worthy
of credit, because, although the witness had made a contradictory statement, he had made
another statement similar to those to which he had testified before the jury. But such a
corroboration is altogether too slight and remote ; indeed, if admitted and followed out to
its legitimate results, it might properly lead to a protracted inquiry to ascertain which of
the two statements had been made most frequently by the witness ; and when this was
determined, then it would be necessary to ask the jury to believe the witness if he had
repeated the statement made before them a greater number of times than the contradic-
tory one which had been proved to impeach his evidence. It is obvious that such a course
of iiiquiry would furnish no means by which the credit due to the testimony of a witness
could be satisfactorily ascertained."
But this answer, forceful as it seems at first sight, is itself in one respect
based on a fallacy. " The imputation on his veracity," says Mr. Phillipps,^
and others use similar terms, " results from the fact of his having contra-
dicted himself, and this is not in the least controverted ... by the evidence
in question." But is it a proved fact that he has uttered the self-contradic-
tion ? And may not the consistency of his other statements help with the
jury to controvert the assumption that he did utter the contradiction ? The
jury have still to determine whether they will believe the witnesses who say
that he did in fact utter it ; and if his consistency at other times can assist
them in reaching a conclusion upon this fundamental point, it is relevant.
That it may so assist them has been clearly pointed out by at least two
Courts :
1871, Cooley, J., in Stewart v. People, 23 Mich. 74: " This question appears to us to be
one of no ordinary difficulty. If it were an established fact that the witness had made
the contradictory statements, we should say that the supporting evidence here offered was
not admissible. If a witness has given different accounts of an affair on several different
occasions, the fact that he has repeated one of these accounts oftener than the opposite one
can scarcely be said to entitle it to any additional credence. A man untruthful out of
court is not likely to be truthful in court ; and where the contradictory statements are
proved, a jury is generally justified in rejecting the testimony of the witness altogether. But
in these cases the evidence of contradictory statements is not received until the witness has
denied making thera, so that an issue is always made between the witness sought to be
impeached and the witness impeaching him. The jury, therefore, before they can deter-
mine how much the contradictory statements ought to shake the credit of the witness, are
' Evidence, 5th Am. ed., 307.
1325
§ 1126 SUPPORTING A WITNESS. [Chap. XXXVI
required first to find from conflicting evidence whether he made them or not. . . . Now
there are many cases in which, if evidence is given of statements made by a witness in con-
flict with those he has sworn to, his previous statements should not only be received in
support of his credit, but would tend very strongly in that direction. If, for instance, the
witness is himself the prosecutor, and has already made sworn complaint, there could be
no doubt, we suppose, that the pendency of this complaint, its contents and the relation
of the witness to it, might be put in evidence, and that they would raise a strong proba-
bility that the testimony as to conflicting accounts, as having been given about the same
time, was either mistaken or corrupt. Suppose a person to be testifying in a case in
which he had spent a considerable period of time and a large sum of money in pursuing
an alleged criminal to conviction, and he is confronted with evidence of his own conflict-
ing statements; the rule would be exceedingly unjust, as well as unphilosophical, which
should preclude, his showing, at least by his own evidence, such circumstances of his con-
nection with the case as would make the impeaching evidence appear to be at war with all
the probabilities. And other cases may readily be supposed in which, under the peculiar
circumstances, the fact that the witness has always previously given a consistent account of
the transaction in question might well be accepted by the jury as almost conclusive that
he had not varied from it in the single instance testified to for the purpose of impeach-
ment. — It is impossible to Jay down any arbitrary rule which could be properly applied
to every case in which this question could arise ; but we think that there are some cases in
which the peculiar circumstances would render this species of evidence important and
forcible. The tender age of the principal witness might sometimes be an important con-
sidei-ation ; and the fact that the previous statement was put in writing — as it was in
this instance — at a time when it would be reasonably free from suspicion might very
well be a controlling circumstance. We think the circuit judge ought to be allowed a
reasonable discretion in such cases, and that though such evidence should not generally
be received, yet that his discretion in receiving it ought not to be set aside except in a
clear case of abuse." '
This argument seems irrefragable. It does not deny the correctness of the
preceding argument, which points out that a consistent statement does not
explain away a self-contradiction; but it shows that argument to rest upon
the assumption that there has been a self-contradiction, and it reminds us
that consistency of statement may serve to overthrow that assumption. This
third view, however, has rarely been noticed. Most Courts accept or reject
this kind of evidence according as they are moved by the first or the second
arguments above.*
3 A similar exposition is made by Johnson, Carter, 79 id. 466; 1885, Hodges v Bales 102
J., in Lyles v. Lyles, 1 Hill Eq. S. C. 78 (1833). id. 494, 500, 1 N. E. 692 (excluded) • 1888 Lo-
* Eng. : 1754, Cannmg's Trial, 19 How, St. gansport & P. G. T. Co. v. Heil, 118 id 135 'l36
Tr. 508, and passim (admitted); A/ii. : 1852, 20 N. E. 703, sevthle (.same); 1892 Hobbs v.
Nichols V. Stewart, 20 Ala. ;)58, 361 (excluded) ; State, 133 id. 404, 407, 32 N. E. 1019 (admitted) •
1873j Sonneborn v. Bernstein, 49 id. 168, 171, 1897, Revnolds v. State 147 id 3 46 N E 31
sflmWe(same); 1895, Jones «. State, 107 id. 93, 18 spmble (admitted); 1897, Hinshaw 7> State ib'
So 237 (same) ; Cal : 1874, People v. Doyell, 48 334, 47 N. E. 158 (same) ; la. : 1868, State ...
Cal. 85, 90 (excluded) ; 1887, Barlily v. Copeland, Vincent, 24 la. 570. 574 (excluded) ■ Ln ■ 1894
74 id. 1, 4 (same) ; 1891, Mason v. Vestal. 88 id. State v. Cadv, 46 La. An. 1346 1349 16 So 19.5
396, 398, 26 Pac. 213 (same) ; Ga. : 1889, IWcCord (same) ; Me'.: 1874, State v Reed 62 Me' 147
«. State 83 Ga. 521, 531, 10 S. E. 437, ..ernWe (admitted); Md.: 1871, McAleer v. Horsev, 35
(excluded); /«.; 1873, Stolp... Blair, 68 111. 541, Md. 439, 465 (left undecided) ■ St 1874 u"386
543 (left undecided); Ind ; 1837, Coffin v. An- Pub. Gen. L. 1888, art. 35, § 2 (prohibits sucli
derson, 4 Blackf. 395, 398 (admitted, and in the corroboration for parties to the cause ■ quoted
following five cases) ; 1842, Beauchamp w. State, ante, §488); 1890, Mallonee v Duff 7'> id
6 id. 299, 308 ; 1853, Perkins ..•. State, 4 Ind. 222 ; 283, 287, 19 Atl. 708 (statute applied) ■' m'iss •
1867, Dailey v. State, 28 id. 285; 1876, Brook- 1858, Com. ... Jenkins, 10 Gray 485 487 (ei-
bank V. State, 55 id. 169, 172 ; 1881, Carter v. eluded) ; 1890, Hewitt v. Corey, 150 Mass 445,
1326
§§ 1100-1144] PEIOE CONSISTENT STATEMENTS. § 1126
From the foregoing prohibition, however (as obtaining in most Courts),
must be distinguished the case where the impeaching inconsistency consists,
not in an express statement, but in conduct {ante, §§ 1040, 1042) implying
an inconsistency ; for here the implication may convincingly be removed by
statements at or about the time which explain the conduct and refute the
imputation that the present explanation is an afterthought.^
It is sometimes said, by Courts admitting consistent statements, that they
must have been uttered lefore the self-contradiction ;^ though this seems
23 N. E. 223 (same); Mich.: 1868, Brown v.
People, 17 Mich. 429, 435 (excluded); 1871,
Stewart «. People, 23 id. 63, 74 (admissible or
not in the trial Court's discretion ; see quotation
supra); Miss.: 1870, Head v. State, 44 Miss.
731,751 (excluded) ; Mo. : 1896, State v. Taylor,
134 Mo. 109, 35 S. W. 92 (excluded) ; 1903, State
V. Hendricks, 172 id. 6.54, 73 S. W. 194 (similar
statements of a dying declarant, excluded) ;
Mont: 1901, Kipp v. Silverman, 25 Mont. 296,
64 Pac. 884 (excluded); N. U.: 1833, French
n. Merrill, 6 N. H. 465, 467 (admitted; but
treated as involviajr a question of recent fabri-
cation); 1860, Reed v. Spaulding, 42 id. 114,
117, 122 (excluded; the preceding case in this
aiipect discredited) ; 1866, Judd c. Brentwood,
46 id. 430 (excluded) ; N. Y. : the evidence was
at first received: 1826, Jackson o. Etz, 5 Cow.
314, 320; 1834, People v. Vane, 12 Wend. 78;
1836, People v. Moore, 15 id. 420, 423 ; 1838,
People V. Rector, 19 id. 569, 583, per Cowen,
J. ; Bronson, J., diss. ; but later decisions re-
pudiated these and declared the evidence inad-
missible: 1840, Robb V. Hacklev, 23 Wend. .50;
Dudley v. BoUes, 24 id. 465, 472; N. C: 1822,
Johnson v. Patterson, 2 Hawks 183 (admitted) ;
State V. Twitly, ib. 449 (same, and in following
cases) ; 1848, State i/. George, 8 Ire. 324, 328;
1849, Hoke's Ex'rs v. Fleming, 10 id. 263, 266;
State V. Dove, ib. 469, 473 ; 1854, March v.
Harrell, 1 Jones L. 329 ; State v. Thomason, ib.
274; Pa.: 1807, Turnbull v. O'Hara, 4 Yeates
446, 451, semhk (admitted) ; 1815, Packer v.
Gonsalus, 1 S. & R. 526, 536 (same); 1821,
Foster v. Shaw, 7 id. 156, 162 (same) ; 1823,
Henderson v. Jones, 10 S. & R. 322 (same) ;
1835, Craig v. Craig, 5 Rawle 91 (treating the
matter as doubtful) ; 1847, McKee v. Jones, 6 Pa.
425, 428 (admitted) ; 1890, Crooks v. Bunn, 136
Pa. 368, 371, 20 Atl. 529 (admitted, but quali-
fied as "sometimes and in some circumstances
competent"); S. C: 1833, Lyles v. Lyles, 1
Hill Eq. 77 (admitted); 1848, State v. Thomas,
3 Strobh. 269, 271 (excluded, where "inconsist-
encies were apparent " in his testimony) ; Tenn. :
1848, Story v. Saunders, 8 Humph. 663, 666,
seynbk (excluded) ; 1855, Dossett v. Miller, 3
Sneed 72, 76 (admitted ; not citing the preceding
case); 1860, Queener v. Morrow, 1 Coldw. 123,
134 (same) ; 1872, Third Nat'l Bank v. Robin-
son, 1 Baxt. 479, 484 (same) ; 1880, Hayes v.
Cheatham, 6 Lea 1, 10 (same); 1890, Glass c.
Bennett, 89 Tenn. 478, 481 , 1 4 S. W. 1 085 (same) ;
1891, Graham v. McReynolds, 90 id. 673, 694,
18 S. W. 272 (reviewing the cases and discard-
ing Storv V. Saunders) ; Tex. : 1894, Goode v.
State, 32 Tex. Or. 505, 508, 24 S. W. 102
(admitted); 1898, Red v. State, 39 id. 414, 40
S. W. 408 (admissible, when " shortly after the
occurrence and before any inducement to falsify
his testimouv"); U. S.: 1816, Wright t. Dek-
Ivne, 1 Pet.'C. C. 199, 203 (admitted); 1834,
Ellicott V. Pearl, 1 McLean 206, 211 (excluded) ;
1836, Ellicott V. Pearl, 10 Pet. 412, 439 (same) ;
1850, Conrad v. Griffey, 11 How. 480, 490,
semble (admissible); Vi.: 1839, Munson v. Hast-
ings, 12 Vt. 346, 350, semble (excluded); 1841,
Gibbs V. Linslev, 13 id. 208, 215 (same); 1888,
State V. Flint, 60 id. .307, 310. 319, 14 Atl. 178
(same) ; 1899, Lavigne v. I.ee, 71 id. 167, 42 Atl.
1093 (same) ; Wash. : t900. State v. Coates, 22
Wash. 601, 61 Pac. 726 (admitted where the con-
tradictory statement was made under duress).
» 1890, Hewitt v. Corey, 150 Mass. 445, 23
N. E. 223 (H. testified that" a horse, the subject
of an alleged conversion, was his wife's, not his
own ; his former inclusion of the horse in a
chattel mortgage is shown in impeachment ; he
is allowed to show, in explanation, that it was
so included by mistake, and that he so told the
mortgagees shortly afterwards); 1880, Zell i;.
Com., 94 Pa. 258; 266, 273 (poisoning K.; R.
testified to severe illness while calling at K.'s
bouse at the same time ; to discredit this, it was
shown that on her way walking home she met
two friends and did not mention the illness ; to
explain away this, evidence was admitted that
on her way home she did stop at another
friend's and told of her illness) ; 1859, State v.
Dennin, 32 Vt. 158, 161 (arson ; the identifying
witnesses' former testimony at the preliminary
examination being less positive and suggesting
recent contrivance, evidence was admitted of
their having caused the defendant's arrest im-
mediately after the fire, as indicating a complete
recognition at the time). The following case
shows the distinction between this and the
ordinary principle; 1868, Brown v. People, 17
Mich. 429, 435 (to fix the date of an alibi, W.
testified that it was Aug. 1 ; that he told another
person on Aug. 2 that he had seen the defendant
at the place the night before, excluded). Com-
pare the principles of §§ 1129, 1131. post.
' 1860, Queener v. Morrow, 1 Coldw. 123, 134
(for this would otherwise allow " every unprin-
cipled witness to bolster up his credit " ; more-
over, here the statements were made under
apparent hope of obtaining thereby a discharge
from jail); 1891, Graham;;. McReynolds, 90Tenn.
673. 697, 18 S. W. 272; 1836, Ellicott v. Pearl,
10 Pet. 412, 440, per Story, J., semble; 1850,
Conrad v. Griffey, 11 How. 480, 491 (because "it
is possible, if not probable, that the inducement
to make them ia for the very purpose of coun-
1327
§ 1126 SUPPORTING A WITNESS. (.Chap. XXXVJ
an unnecessary refinement. It has also been said that the permission, when
granted, to corroborate by consistent statements does not apply to a party,
even when he is a witness, against whom admissions have been used ; ' but
this is unsound.^
§ 1127. Offered (4) after Impeachment by Contradiction. A former con-
sistent statement helps in no respect to remove such discredit as arises from
,a contradiction by other witnesses. When B is produced to swear to the
contrary of what A has asserted on the stand, it cannot help us, in deciding
between them, to know that A has asserted the same tiling many times pre-
viously. If that were an argument, then the witness who had repeated his
story to the greatest number of people would be the most credible. Never-
theless, a few Courts see fit to receive the evidence, misled by the traditional
notion that it has some force.^
§ 1128. Offered (5) after Impeachment by Bias, Interest, or Corruption ;
Statements of an Accomplice. (1) A consistent statement, at a time prior to
the existence of a fact said to indicate Bias, Interest, or Corruption, will effec-
tively explain away the force of the impeaching evidence ; because it is thus
made to appear that the statement in the form now uttered was independent
of the discrediting influence. The former statements are therefore admissible :
1806, Mr. W. D. Swans, Notes to Pothier, 11,247: " If a witness speaks to facts negativ-
ing the existence of a contract, and insinuations are thrown out that he has a near con-
nection with the party on whose behalf he appears, that a change of market or any other
alteration of circumstances has excited an inducement to recede from a deliberate engage-
ment, the proof by unsuspicious testimony that a similar account was given when the
contract alleged had every prospect of advantage removes the imputation resulting from
the opposite circumstance, and the testimony is placed upon the same level which
tei-acting those first uttered"). Contra: 1876, Horsey, 35 id. 439, 463 (Stewart, J., diss.) ; 1874,
Broolcbauk v. State, 55 Ind. 169, 172. Maitland ;;. Bank, 40 id. 540, 559 ; 1878, Bloomer
' 1888, Logansport & P. G. T. Co. v. Heil, ». State, 48 id. 521, 537 ; 1890, Malloiiee v. Duff,
118 Ind. 135, 20 N. E. 703 ; Md. St. 1874, c. 386, 72 id. 283, 287, 19 Atl. 708 ; 1901, Gill v. Stay-
and Pub. Gen. L. 1888, Art. 35, § 2 (quoted ante, lor, 93 id. 453, 49 Atl. 650 (entries in a book,
§ 488) ; 1890, Mallonee v. Duff, 72 Md. 283, 287, treated as made by the witness himself, admitted
19 Atl. 708. to corroborate him. after impeachment by con-
8 Examples of such use (cited also sapro and tradiction on a material point); Mo.: 1846,
infra): 1860, Reed u. Spaulding, 42 N. H. 114, Riiiey v. Vanlandingham, 9 Mo. 807, 812 (ex-
117,123; 1866, Judd v. Brentwood, 46 id. 430; eluded); N. Y.: the evidence was at first
1868, Washington Fire Ins. Co. v. Davison, 30 received: 1834, People v. Vane, 12 Wend. 78,
Md. 92, 104; 1871, McAleer v. Horsey, 35 id. se.mble; but this case was later repudiated : 1840,
439, 464; 1881, McLeod v. BuUard, 84 N. C. Robb w. Hackley,23 Wend. 50; Dudley b. BoUe.s,
515, 529; 1894, Wallace i;. Grizzard, 114 id. 24 id. 465, 472 ; N. C: 1854, March >•. HArrell,
438, 19 S. E. 760. 1 Jones L. 329 (admitted) ; 1874, Bullinger i'.
But whether, without the parti/ beinii a witness, Marshall, 70 N. C. 520, 524 (same) ; 1879, State
his consistent claims can be used in general to v. Blackburn, 80 id. 474, 478 (dving declarant) ;
rebut his admissions is a different question : post, 1881, McLeod p. Bullard, 84 id' 515, 529 ; 1894,
§ 1133. Wallace v. Grizzard, 114 id. 488, 19 S. K 760;
1 D. C. : 1880, U. S. V. Newsora, 1 Mackey Pa. : 1823, Henderson v. Jones, 10 S. & R.
152, 169 (admitted) ; III. : 1873, Stolp v. Blair, 322 (admitted) ; 1877, Hester </. Com. 85 Pa.
68 111. 541, .543 (excluded); Ind.: 1881, Carter 1.39, 158, semble (same); Tenn. : 1890, Glass v.
V. Carter, 79 Ind. 466, 468 (excluded); 1885, Bennett, 89 Tenn. 478,481, 14 S. W. 1085, semWe
Hodges V. Bales, 102 id. 494, 500, 1 N. E. 692 (admitted where the impeachment merely offered
(same); la.: 1868, State c. Vincent, 24 la. 570, contrary facts, not self-contradictions, but the
574, semble (excluded); Md.: 1823, Cooke v. Court treated them as the latter) ; U.S.: 1816,
Curtis, 6 H. & J. 93 (admitted, and in the fol- Wright v. Deklyne, 1 Pet. C. C. 199, 203, semble
lowing cases) ; 1868, Washington Fire Ins. Co. (excluded) ; Vt. : 1839, Munson o. Hastings 12
V. Daviaon, 30 Md. 92, 104; 1871, McAleer v. Vt. 346, 350 (excluded).
1328
§§ 1100-1144] PEIOR CONSISTENT STATEMENTS. § 1129
it would have if the motives for receding from a previous intention had never had
existence.'"
(2) An accomplice, whether a co-indictee or not, is always under a suspicion
of discredit, implied from his interest to screen himself and to secure the
conviction of his companions {ante, § 967) ; and he is usually required to be
corroborated by other witnesses {post, § 2056). Is it permissible to support
him by the fact that he told a consistent story before taking the stand ? It
would seem not ; '■* unless by some mode of impeachment some other principle
{supra, par. 1 ; post, § 1129) becomes applicable.
§ 1129. Offered (6) after Impeachment aa to Recent Contrivance. Im-
peachment on the ground of recent contrivance must be distinguished (as it is
not always) from the preceding ground. It is more nearly connected with the
case of impeachment by Self-Contradiction. The charge of Eecent Contriv-
ance is usually made, not so much by affirmative evidence, as by negative
evidence that the witness did not speak of the matter before, at a time when
it would have been natural to speak ; his silence then is urged as inconsistent
with his utterances now, i. e. as a Self-Contradiction {ante, § 1042). The
effect of the evidence of consistent statements is that the supposed fact of
not speaking formerly, from which we are to infer a recent contrivance of the
story, is disposed of by denying it to be a fact, inasmuch as the witness did
speak and tell the same story. This use of former similar statements is uni-
versally conceded to be proper ; though occasionally it is difficult to apply
the principle to the facts.'
^ The evidence was held admissible, except 108 N. C. 793, 13 S. E. 217 (deceased's son) ;
as otherwise noted : Eng. : 1803, Clare's Trial, Term. : 1855, Dossett v. Miller, 3 Sneed 72, 76 ;
28 How. St. Tr. 899 (after insinuations that the 1860, Queener v. Morrow, 1 Coldw. 123, 134 ;
witness had been motivated by a reward); Ala.: 1880, Hayes v. Cheatham, 6 Lea 1, 10, semh/e;
1895, Yarbrough v. State, 105 Ala. 43, 16 So. 1890, Glass w.Bennett, 89 Tenu. 478,481, 14 S.W.
758; Cal.: 1874, People k. Doyell, 48 Cal. 85, 1085, semble; 1900, Nashville C. & St. L. R.
90, semble; 1887, Barkly v. Copeland, 74 id. Co. r. Lawson, 105 id. 639, 58 S. W. 480; Utah:
1, 5, 15 Pac. 307 (before the time of an alleged 1898, Ewing v. Keith, 16 Utah 312, 52 Pac. 4
oiler of a bribe) ; 1888, Mason v. Vestal, 88 id. (the interest arising from being a party to the
396, 398, 26 Pac. 213, somhle; Go.: 1889, Mc- litigation, held not sufficient) ; Vt. : 1888, State
Cord V. State, 83 Ga. 521, 530, 10 S. E. 437 v. flint, 60 Vt. 304, 307, 316, 14 Atl. 178 (undue
(before the time of an alleged bribery); ///.; influence of an interested person). The state-
1853, Gates v. People, 14 111. 433, 438; 1873, ment in Reed v. Spaulding, 42 N. H. 123 (1860),
Stolp V. Blair, 6S id. 541, 543; la. : 1868, State that the sustaining statement "must have been,
V- Vincent, 24 la. 570, 575; 1868, Boyd «. Bank, or at least appeared to be, directly against his
25 id. 257 ; La. : 1894, State v. Cady, 46 La. An. interests," is not sound.
1346, 1349, 16 So. 195 {semble, the principle con- ^ 1395^ gt^tg „ Callahan, 47 La. An. 444,455,
ceded, but held not applicable where the pro- 17 So. 50 (by a majoritv) ; 1895, State u.'Du-
ponent of the witness had himself shown the donssat, ib. 977, 17 So". 685; 1901, State v.
fact indicating bias); Mass.: 1858, Com. v. Williams, 129 N. C. 581, 40 S. E. 84 (co-defend-
Jenkins, 10 Gray 485, 488 (admissible, after evi- ant, after verdict of not guiltv entered by con-
dence that " he is under a strong bias or in such sent). Contra : 1834, People 0. Vane, 12 Wend,
a situation as to put him under a sort of mental 78, 79.
duress to testify in a particular way"); 1890, "■ Compare with the following the cases in
Hewitt V. Corey, 150 Mass. 445, 23 N. E. 223 § 1126, ante, note 5 : Ga.: 1902, Atlanta K. & N.
(same); Mo.: 1896, State v. Taylor, 134 Mo. R. Co. u, Strickland, 116 Ga. 439, 42 S.E. 864 (not
109, 35 S. W. 92 ; N. H. : 1860, Reed v. Spauld- admitted, where the opponent had impeached the
ing,42N. H. 114, 123; 1866,Judd K.Brentwood, witness' testimony as "manufactured"; theopin-
46 id. 430; N. Y.: 1840, Robb v. Hackley, 23 ion ignores the principle involved); la.: 1865,
Wend. 50 (admissible, after evidence that the Statew. Cruise, 19 Ia.312(whetherthedefendant
witness speaks "under the influence of some was at a place on the 14th was essential; the de-
motive prompting him to make a false or colored fendant admitted that he was there on the 7th ■ a
statement"); N. C. 1891, State v. Brabham, statement of his made on the 9th, and speaking
1329
§ 1130
suppoETiJsra a witness.
[Chap. XXXVI
§ 1130. Same : Statements Identifying an Accused, or Fixing a Time or
Place. (1) Ordinarily, when a witness is asked to identify the assailant, or
thief, or other person who is the subject of his testimony, the witness' act of
pointing out the accused (or other person), then and there, is of little testi-
monial force. After all that has intervened, it would seldom happen that
the witness would not have come to believe in that person's identity. The
failure to recognize would tell for the accused ; but the affirmative recognition
might mean little against him. The situation is practically the same as when
Eecent Contrivance is alleged. To corroborate the witness, therefore, it is
entirely proper (on the principle of § 1129, ante) to prove that at a former
time, when the suggestions of others could not have intervened to create a
fancied recognition in the witness' mind, he recognized and declared the pres-
ent accused to be the person. If, moreover (as sometimes is done) the per-
son has been so placed among others that all probability of suggestion (by
seeing him handcuffed, for example) is still further removed, the evidence
becomes stronger. This is a simple dictate of common sense, and has never
been denied, except when the bearings of the present principle have been
lost sight of.^
of having been there already, was admitted, as it
was conceded that he had been there only once) ;
1868, State «. Vincent, 24 la. 570, 575; Kan.:
1900, Board v. Vickers, 62 Kan. 25, 61 Pac. 391 ;
La. : 1895, State v. Dadoussat, 47 La. 977, 17 So.
685 (where the prosecuting witness' statements
were charged to be fabricated); Md..- 1896,
Baltimore C. P. R. Co. v. Knee, 83 Md. 77, 81,
34 Atl. 252 (but here the impeachment was by
testimony that the witness was absent at the
time of the event he testified to, and a former
general statement made a few days after the
event was rejected as not " supplying a test of
witness' recollection as well as of his integrity ") ;
Mass. : 1 854, Com. v. Wilson, 1 Gray 338, 340
(similar statement at the time of the original
event, admitted after a cross-examination directed
to show concealment of his testimony until re-
cently ; said to be admissible where the opponent
" has sought to impeach tlie witness on cross-
examination ") ; 1858, Com. v. Jenkins, 10 id.
485, 489 (after a showing that he "formerly
withheld or concealed the facts," admissible) ;
1890, Hewitt ■■. Corev, 150 Mass. 445, 23 N. E.
223 (same) ; N. H. : '1833, French v. Merrill, 6
N. H. 465, 467 ; 1860, Reed </. Spaulding, 42 id.
114, 123; N. Y.: 1848, People b. Finnegan, 1
Park. Cr. C. 147, 151 ; 1890, Hesdra's Will, 119
N. Y. 615, 618, 23 N. E. 555 (deceased attesting
witness' declarations during H.'s lifetime that H.
had made a will, received to rebut his declara-
tions after H.'s death that he had forged a wiU
for U.; unsound); Pa.: 1835, Craig v. Craig,
5 Rawle 91. 98 ; 1847, McKee w. .Tones, 6 Pa. St.
425, 429; S. £>.: 1901, State v. Cadilv, 15 S. D.
167, 87 N. W. 927; Tenn.: 1860, Queener v.
Morrow, 1 Coldw. 123, 134 ; 1880, Hayes v.
Cheatham, 6 Lea 1, 10; 1890, Glass v. Be'nuett,
89 Tenn. 478, 481, 14 S. W. 1085, semhte ; Tex.:
1886, Lewy v. Fischl, 65 Tex. 312, 318 (partner-
ship) ; 1901, .^tna Ins. Co. u. Eastman, 95 id. 34.
1330
64 S. W. 863 ; V. S. : 1836, EUicott v. Pearl,
10 Pet. 412, 439 ("where the testimony is as-
sailed as a fabrication of a recent date or a com-
plaint recentlv made"); Utah: 1894, Silva v.
Pickard, 10 Utah 78, 89, 37 Pac 86 ; 1897, State
V. Carrington, 15 id. 480, 50 Pac. 526, semble;
Vt. : 1839, Munson v. Hastings, 12 Vt. 346, 350
(" cases where the silence of the witness would
operate strongly to discredit the fact afterwards
sworn to, as in the case of bastardy, rape, rob-
bery, and the like"); 1888, State w. Flint, 60
id. 304, 309, 317, 14 Atl. 178 (testimony of an
accomplice as to tools in the defendant's trunk ;
the suggestion being that the police had told
him of their discovery, evidence was admitted,
that he so stated before they told him) ; Wash. :
1902, Callihan v. W. W. Power Co., 27 Wash.
154, 67 Pac. 697 (written report of car-conductor,
made to his superior before knowledge of the
injury to the plaintiff, admitted in corroboration).
An analogous situation seems the following,
where the evidence was thought admissible:
1878, State v. Parish, 79 N. C. 610, 613, per
Reade, J. (where "from lapse of time his mem-
ory was impeached ") ; 1879, Jones v. Jones, 80
id. 247, 250 (same).
In Sugden v. St. Leonards, L. R. 1 P. D. 154,
189 (1876), the opinion of Hannen, J., admitted
certain prior statements of the principal witness,
made when her mind was presumably impartial.
^ 1743, Anne.«ley«. Anglesea, 17 How.St Tr.
1139, 1195 ff.; 1866, R. v. Smith, London, Mon-
tague Willams' Reminiscences, I, 138 (the Can-
non street murder ; the police-inspector was
allowed to prove the identification of the ac-
cused from among a number of other persons,
by tests so devised as to avoid any suggestion).
Contra: 1899, Murphy v. State," 41 Tex. Cr.
120, 51 S. W. 940. See other cases cited ante,
§ 744 (recollection), and post, § 1791 (verbal
acts).
§§ 1100-1114] PRIOR CONSISTENT STATEMENTS.
§ 1135
C2) Where the witness can verify his recollection of a time or place by
the circumstance that another person made a statement to him, a different use
of evidence is involved ; the statement does not corroborate him by its simi-
larity, for it may be otherwise irrelevant.^
§ 1131. Offered (7) after Cross-E:samination or Impeachment of Any Sort.
The broad rule obtains in a few Courts that consistent statements may be
admitted after impeachment of any sort, — in particular after any impeach-
ment hy cross-examination} But there is no reason for such a loose rule.
§ 1132. Consistent Statements are not themselves Testimony; Impeached
■Witness himself may prove them. (1) The consistent statements are not
to be taken in themselves as additional testimony ; as such they would be
obnoxious to the Hearsay rule {post, § 1792); it is the fact of a consistent
statement having been made that affords the corroboration :
1878, Reade, J., in State v. Parish, 79 N. C. 614 : " It must not be considered as substan-
tive evidence of the truth of the facts any more than any other hearsay evidence. The
fact that supporting a witness who testifies does indirectly support the facts to which he
testifies does not alter the case ; that is incidental. He is supported, not by putting a
prop under him, but by removing a burden from him, if any has been put upon him." ^
(2) When, by any of the foregoing rules, the statements are admissible at
all, there is no reason why the impeached witness himself may not testify to
' These cases are placed ante, § 416 ; the
objection la based on the Hearsay rule {post,
§1791).
1 Some of these cases rest on the ground that
moral character (ante, § 112.5) is involved; the
ruling favors admission, except as otherwise
noted: III.: 1873, Stolp v. Blair, 68 111. 541, 543
(cross-€xamination) ; La. : 1 895, State v. Johnson,
47 La. An. 1225, 17 So. 789 (cross-examination to
fraud); Md.: 1823, Cooke v. Curtis, 6 H. & J.
93 ("where the credibility of a witness is at-
tacked"); 1871, McAleer v. Horsey, 35 Md.
439, 467 (left undecided) ; Mass. : 1854, Com. v.
Wilson, 1 Gray 338, 340 (cross-examination) ;
Mo.! 1883, State v. Grant, 79 Mo. 113, 133 (if
an "attack be made on the character of the wit-
nes.s") ; 1890, State v. Whelehon. 102 id. 17, 21,
14 S. W. 730 (left undecided) ;'l896, State o.
Taylor, 134 id. 109, 35 S. W. 92 (repudiating
State V. Grant on this point, and denying this
broad scope to the rule) ; N. Y. : 1834, People
V. Vane, 12 Wend. 78 (an accomplice; evidence
admitted) ; but later decisions entirely repudiate
this principle, and sustain the foregoing case
under the doctrine (supra, § 1128) of explaining
awav a supposed bias or interest: 1840, Uobb v.
Hackley, 23 Wend. 50, 53 ; N. C. : 1822, State
V. Twitty, 2 Hawks 449; 1848, State v. George,
8 Ire. 324, 328, semhie; 1854, March v. Harrell,
1 Jones L. 329 (from "the nature of his evi-
dence, from his situation, from bad character,"
from prior self-contradictions, or by imputations
on cross-examination) ; State v. Thomason, ib.
274; 1874, Bullinger v. Marshall, 70 N. C. 520,
525; 1878, State v. Laxton, 78 id. 564; 1878,
State !>. P.arish, 79 id. 610, 613; 1879, Jones v.
Jones, 80 id. 246, 249 (admissible "to repel any
imputations upon the credit of the witness ") ;
1880, Roberts v. Roberts, 82 id. 29, 31 (to sus-
tain "assailed" testimony) ; 1885, State v. Rowe,
92 id. 629, 631 ; 1885, State v. Whitfield, ib.831,
834 ; 1885, Davis v. Council, ib. 725, 730 (fraud);
1887, State v. Brewer, 98 id. 607, 3 S. E. 819
(impeachment on cross-examination); 1887,
Davenport v. McKee, ib. 500, 506, 4 S. E. 545
("when and however impeached"); 1888, State
V. Freeman, 100 id. 429, 5 S. E. 921 (" whenever
the witness is impeached and in whatever man-
ner") ; 1889, State v. Ward, 103 id. 419, 8 S. E.
814; 1890, State v. Morton, 107 id. 890, 12 S. E.
112 ; 1890, State v. Jacobs, ib. 873, 12 S. E. 248;
1891, Hooks V. Houston, 109 id. 623, 627, 14
S. E. 49; 1892, Gregg i\ Mallett, 111 id. 74, 77,
15 S. E. 936; State v. McKinney, ib. 683, 16
S. E. 235; 1893, Byrd v. Hudson, 113 id. 203,
18 S. E. 209; 1894, State v. Staton, 114 id. 813,
19 S. E. 96; 1894, Wallace v. Grizzard, ib. 488,
19 S. E. 760; 1897, Burnett v. Wilm. N. & N.
R. Co., 120 id. 517, 26 S. E. 819 ; 1902, State v.
Maultsby, 130 id. 664, 41 S. E. 97 ; Pa. : 1823,
Henderson v. Jones, 10 S. & R. 322, semUe (de-
claring in favor of "the generality of the rule ") ;
1877, Hester v. Com,, 85 Pa. 139, 158, semble
(approving the preceding case) ; 1890, Crooks v.
Bunn, 136 id. 368, 372, 30 Atl. 529 (apparently
approving Henderson v. Jones ; but also appar-
ently favoring a limitation to impeachment by
prior self-contradictions); Tex..- 1898, Scott v.
State, — Tex. Cr. — , 47 S. W. 531 (admitting
after impeachment by conviction of crime).
^ 1895, Yarbrough f. State, 105 Ala. 43, 16
So. 758; 1850, Conrad v. Griffey, 11 How. 480,
492. Such evidence is said to be an exception
to the Hearsay rule in Maitland v. Bank, 40
Md. 559 (1874) ; but this is erroneous.
1331
§ 1132
SUPPOETING A WITNESS.
[Chap. XXXVI
them ; ^ even though this will usually be of less value than the testimony of
other persons.
§ 1133. Statemeuts of Claim by a Party, to rebut his Admissions. If the
consistent statements of a witness are (as a majority of Courts hold) not ad-
missible to explain or rebut his inconsistent statements {ante, § 1126), then
is there any less or greater reason for permitting the admissions of a party
(when he has not become a witness) to be rebutted or explained by his state-
ments of claim, made at other times, consistent with his present claims under
the pleadings ? His admissions are relevant against him in analogy to the
self-contradictions of a witness (ante, § 1048), and it would seem therefore
that his consistent claims should be treated after the same analogy ; i. e. they
should be received or excluded in whatever situations a witness' consistent
statements would be received or excluded {ante, §§ 1126-1129). Most Courts,
however, exclude such statements unconditionally.^ Nevertheless, in prop-
erty controversies, where usually the question arises, the same utterances are
often receivable on some principle of Admissions {ante, §§ 1085-1087) or of
Verbal Acts {post, § 1778), or, in other controversies, of Completeness of a
conversation or correspondence {post, §§ 2115-2120).
2 Ind.: 1892, Hobbs o. State, 133 Ind. 404,
408, 32 N. E. 1019; N. C: 1848, State v.
George, 8 Ire. 324, 329; 1881, McLeod v. Bul-
larcl, 84 N. C. 515, 529 ; 1885, State v. Whitfield,
92 id. 831, 835 ; 1897, Burnett o. R. Co., 120 id.
517, 26 S. E. 818 ; Tex.: 1893, Goode v. State,
32 Tex. Cr. 505, 508, 24 S. W. 102.
1 Colo. : 1882, Nutter v. O'Donnell, 6 Colo.
253, 260 ("he cannot annul or explain them
away by counter-declarations"); Ga.: 1878,
Lewis V. Adams, 61 Ga. 559 (title to land) ; la. :
1872, Wilson v. Patrick, 34 la. 362, 368, 371 (an
ancestor's declarations that he owned the land
absolutely, not received to counteract his admis-
sions that he owned it as security only) ; 1887,
Wfscott V. VVescott, 75 id. 628, 35 N. W. 649,
semble (similar; here, the declarations of the
plaintiff's mother that money handed by her to
the defendant was a loan, not a gift) ; Me. ;
1887, Royal v. Chandler, 79 -Me. 265, 9 Atl. 615
(title to land) ; Md. (the statutes and cases are
cited antu, § 1126, notes 4 and 8, and § 1127) ;
Mass. : 1853, Hunt v. Roylauce, U Cush. 117, 121
(excluded ; " To show that a man denied being a
member of a copartnership to A to-day does not
prove or in any way tend to show that he did
not admit that he was a member of the firm to
B yesterday") ; 1859, Com. v. Goodwin, 14 Gray
55 (arson); 1861, Blake o. Everett, 1 All. 248,
249 (right of way) ; 1866, Baxter v. Knowles, 12
id. 114, 119 (title to personalty); 1875, Picker-
ing V. Reynolds, 119 Mass. Ill, 113 (title to
land) ; 1876, Hayden v. Stone, 121 id. 413 (dedi-
cation) ; Mo. : 1846, Turner v. Belden, 9 Mo.
787, 790 (Foster y. Nowlin (1835), 4 id. 18, 22,
repudiated) ; 1855, Oriddle v. Griddle, 21 id. 522
(same rule) ; 1858, Clark v. Hufiaker, 26 id. 264,
267 (partnership) ; N. H. : 1860, Hurlburt v.
Wheeler, 40 N. H. 73, 76 (title to property) ;
N. Y.: 1806, Waring v. Warren, 1 John. 340,
semble; Pa.: 1819, McPeake v. Hutchinson, 5
1332
S. & R. 294, 296 (advancement to child) ; 1822,
Patton V. Goldsborough, 9 id. 47, 55 (" A con-
fession made at one time cannot be rebutted by
a declaration at another time," because, " if that
were permitted, a man might always destroy his
confessions by subsequent declarations to the
contrary"); 1824, Galbraith v. Green, 13 id. 85,
92; 1890, Crooks v. Bunn, 136 Pa. 368, 371, 20
Atl. 529; 6'. C; 1882, Ellen v. Ellen, 18 S. C.
489, 494 (adverse possession) ; Tex. : 1 854, Jones
V. State, 13 Tex. 168, 176. Contra: 1869, Key
V. Thomson, 1 Han. N. Br. 295, 297, 301 (mal-
practice ; defendant having assured the plaintift
that he would recover, his statement at the time
to another person that the plaintiff would not
recover, held admissible, as explaining that the
first assurance was merely to keep up the plain-
tiff's spirits) ; 1811, Brackenridge, J., in Gar-
wood V. Dennis, 4 Binn. 314, 333, 339 (" It goes
to the evidence of the fact that he did at any
time disclaim. For tliough a declaration at one
time is not inconsistent with a contrary declara-
tion at another, yet it diminishes the probability
that such a declaration was made " ; here, oral
declaratious of a predecessor of the defendant
in title disclaiming title had been received ; his
deeds containing recitals of other deeds giving
him title were declared admissible, as tending to
show the improbability of such conversations ;
contra, Yeates, J. ; compare the theory of
Cooley, J., ante, § 1126); 1899, Fidelitv M. L.
Ass'n V. Miller, 34 C. C. A. 211, 92 Fed. 63
(fraudulent plan to commit suicide after obtain-
ing insurance ; after evidence of the deceased's
utterances showing such a plan, other utterances
showing the contrary were admitted in rebuttal).
The principles of §§ 1725-1732, post (declara-
tions of intent), will sometimes also suffice for
such evidence. Distinguish the question whether
the parti/ when a witness may be corroborated as
such (onfc, § 1126).
§§ 1100-1144] PRIOR CONSISTENT STATEMENTS. § 1135
2. Special Classes of "Witnesses.
§1134. Complaint of Rape; History. This class of corroborative state-
meats is unusually complicated in principles and confused in precedents, not
because of any inherent complexity in the principles themselves, but because
the evidence admits of the application of three distinct general principles for
its admission, and the distinct bearings of these different principles have not
always been borne in mind by the Courts.
Down to the beginning of the 1800s, evidence of this sort was received by
the Courts as a matter of old tradition and practice, with little or no thought
of any principles to support it. The tradition went back by a continuous
thread to the primitive rule of hue-and-cry ; and the precise nature of the
survival is more fully explained in dealing with the Hearsay Exception of
Res GestcB {post, § 1760). But as more and more attention began to be given,
in the early 1800s, to the principles underlying every sort of evidence, there
came to be felt a need of explaining on principle this inherited and hitherto
unquestioned practice; the various aspects of its significance began to be
thought of. There are three possible principles, well enough established
otherwise, upon which such evidence can be offered : 1, as an Explanation of
a Self-Contradiction (ante, § 1042) ; 2, as a Corroboration by other Similar
Statements, under the present principle; 3, as a Bes Gestae Declaration,
excepted under the Hearsay Eule {post, § 1760). These may be noticed
in order, with the precedents proceeding upon each theory.
§ 1135. Same: (1) First Theory: Explanation of an Inconsistency; Fact
of Complaint is admissible. It has already been seen {ante, § 1042) that the
fact of a failure to speak when it would have been natural to do so is in
effect an Inconsistent Statement or Self-Contradiction, — as when on a
former trial a witness said nothing about an important circumstance which
he now asserts, or when he faUed to testify at all, though present, when his
testimony (if true) could have been highly valuable. This failure to speak,
as also already seen {ante, § 1044), may perhaps be explained away in some
fashion ; but, unless so explained, it stands in effect as a Self-Contradic-
tion. Now, when a woman charges a man with a rape, and testifies to
the details, and the accused denies the act itself, its very commission thus
coming into issue, the circumstance that at the timp of the alleged rape
the woman said nothing about it to anybody constitutes in effect a Self-
Contradiction of the above sort. It was entirely natural, in this situation
above all others, that she should have spoken out. That she did not, that
she went about as if nothing had happened, was in effect an assertion that
nothing violent had been done. Thus, the failure of the woman, at the time
of the alleged rape, to make any complaint could be offered in evidence (as
all concede) as a virtual self-contradiction discrediting her present testimony.^
^ But not oil a charge of rape under aqe of 111. 172, 48 N. E. 304. That the woman's sulse-
cmsent, where the intercourae is voluntary : 1897, queni friendly conduct towards the accused, cm a
People w. Lee, 119 Cal. 84, 51 Pac. 22, scm6/e; charge of rape, is admissible, stands iipoi an-
1899, State v. Birchard, 35 Or. 484, 59 Pac. 468 ; other principle (ante, § 402).
nor of sodomy : 1897, Honselman v. People, 168
1333
§ 1135 SUPPORTING A WITNESS. [Chap. XXXVI
Moreover, it is apparent that where nothing appears on the trial as to the
making of such a complaint, the jury might naturally assume that none was
made, and counsel for the accused might be entitled to argue upon that as-
sumption. As a peculiarity, therefore, of this kind of evidence, it is only just
that the prosecution should be allowed to forestall this natural assumption
by showing that the woman was not silent, i. e. that a complaint was in fact
made? This apparently irregular process of negativing evidence never for-
mally Lutroduced by the opponent is regular enough in reality, because the
impression upon the tribunal would otherwise be there as if the opponent
had really offered evidence of the woman's silence. Thus the essence of the
process consists in the showing that the woman did not in fact behave
with a silence inconsistent with her present story. The Courts have fully
sanctioned this analysis of the situation:
1830, Daggett, J., in State v. DeWolf, 8 Conn. 99 : "If a female testifies that such an
outrage has been committed on her person, an inquiry is at once suggested why it was
not communicated to her female friends. To satisfy such inquiry it is reasonable that
she should be heard in hei- declaration that she did so complain."
1869, Woodruff, J., in Baccio v. People, 41 N. Y. 268: "It may be suggested, perhaps,
that it is so natural as to be almost inevitable that a female upon whom the crime has
been committed will make immediate complaint thereof to her mother or other confiden-
tial friend, and, inasmuch as her failure to do so would be strong evidence that her affir-.
mation on the subject when examined as a witness was false, that the prosecution may
anticipate such a claim by affirmative proof that complaint was made. . . . Like outcries
made at the time charged, the appearance and manner of the female immediately after,
her instant complaints of the fact are all such as are natural and according to the ordinary
course of events."
1900, Dartch, C. J., in Slate v. Neal, 21 Utah 151, 60 Pac. 510: " The natural instinct of
a female thus outraged and injured prompts her to disclose the occurrence, at the earliest
opportunity, to the relative or friend who naturally has the deepest interest in her wel-
fare; and the absence of such a, disclosure tends to discredit her as a vpitness, and
^ The English cases have always conceded 83, 86; 1881, Oleson v. State, 11 Nebr. 276, 9
that t\ie fact of the complaint may be shown; N. W. 38, semble; 1900, Welsh v. State, 60 id.
they are collected post, § 1760 (under the Hear- 101, 82 N. W. 368; 1863, State v. Knapp, 45
say Exception), and need not be repeated here. N. H. 148, 1.55; 1869, Baccio v. People, 41 N. Y.
The American cases here follow ; but only the 265; 1866, State v. Marshall, Phillips N. C. 49;
first rulinj; in each jurisdiction is given, except 18+8, Johnson v. State, 17 Oh. 593, 595 ; 1897,
where later ones were needed to settle the doc- Harmon v. Terr., 5 Okl. 368, 49 Pac. 55; 1897,
trine ; all the other cases, in tlie following sec- State v. Sargent, 32 Or. 110, 49 Pac. 889 ; 1848,
tions, assume the doctrine as settled : 1871, Phillips v. State, 9 Humph. 246, 247 ; 1874, Pef-
Lacy V. State, 45 Ala. 80 ("the fact of making ferling i: State, 40 Tex. 486, 492 ; 1853, Brogy's
complaint immediately and before it is likely Case, 10 Gratt. 722,726; 1874, State v. Nil'es,
that anything should have been contrived and 47 Vt. 82, 86; 1888, Hannon v. State, 70 Wis.
devised") ; 1855, Pleasant v. State, 15 Ark. 624, 448, 450, 36 N. W. 1. The same rule ought to
648; 1862, People v. Graham, 21 Cal. 261, 265, apply to other charges involving violent sexual
semble; 1901, People v. Figueroa, 134 id. 159, assault: 1902, People v. Swist, 136 Cal. 520, 69
66 Pac. 202; 1830, State v. DeWolf, 8 Conn. 93, Pac. 223 (crime against nature, committed on a
99; 1852, Stephen v. State, 11 Ga. 225, 233; child); 1893, People v. Hicks, 98 Mich. 86,89,
1869, Weldon v. State, 3-J Ind. 81 ; 1871, State 56 N. W. 1102 (indecent assault) ; 1900, State i:
V. Richards, 28 la. 420; 1901, State t>. Wasliing- Imlay, 22 Utah 156, 61 Pac. 557 (assault with
ton, 10+ La, 57, 28 So. 90+; 1871, Strang v. intent to rape); but not to charges involving
People, 24 Mich. 1,5; 1874, People v. Lynch, intercourse by consent: 1895, State v. Siblev,
29 id. 273, 279; 1879, Maillet v. People, 42 id. — Mo. — , 31 S. W. 1033 (criminal seduction);
262, 264, 3 N. W. 854 ; 1872, State v. Shettle- conipare the cases cited supra, note 1.
worth, 18 Minn. 208, 212; 1877, Gardner v. There is no reason why a second complaint
Kellogg, 23 id. 463 ; 1875, State w. Jones, 61 Mo. should be excluded. Contra: 1S96, Lowe v.
232, 235, semble; 1881, State v. Warner, 74 Mo. State, 97 Ga. 792, 25 S. E. 676.
1334
§§ 1100-1144] EAPE COMPLAmANT. § 1135
may raise an inference against the truth of the charge. To avoid such discredit and
inference, it is competent for the prosecution to anticipate any claim as to effects,
and show, by affirmative proof of the victim and of her relative or friend to whom she
narrated the circumstances of the outrage, that complaint was made recently after
its commission."
In the same way, and just as with ordinary Self-Contradictions (ante,
§ 1044), if the silence is conceded by the prosecution, the silence may never-
theless be explained away as due to fear, shame, or the like, so that it loses
its significance as a suspicious inconsistency :
1863, Bellown, J., in Sta(e v. Knapp, 45 N. H. 155: "It is equally well settled also that
the delay to make complaint may be explained by showing that it was caused by threats
or undue influence of the prisoner. ... It would then be clearly proper to show the
reasons of such delay, — whether caused by the threats of the prisoner, inability caused
by the violence, want of opportunity, or the fear of injury by the communication to the
only persons at hand. . . . Upon a disclosure of all the circumstances the jury might
properly find that the delay was neither unreasonable nor inconsistent with the testimony
of the prosecutrix." ^
Under the early rule of hue-and-cry, it was necessary that there should
have been fresh complaint; and this notion has been perpetuated in the
statement, usual in enunciating the modern rule, that the complaint must
have been recent, in order that the fact of it may be admitted. A few Courts
have applied this notion practically in their rulings, by excluding complaints
made after a certain length of time.* But, if it be considered that the pur-
pose of the evidence is merely to negative the supposed silence of the woman,
it is perceived that the fact of complaint at any time should be received.
After a long delay, to be sure, the fact is of trifling weight, but it negatives
silence, nevertheless, and the accompanying circumstances must determine
how far the delay has been successfully explained away.®
5 1864, R. V. Rearden, 4 F. & F. 76, 80; » 1903, Trimble v. Terr., — Ariz. — 71
1900, State «. Petersen, 110 la. 647, 82 N. W. Pac. 932; 1903, State v. Bebb, — la.— ' 96
329 ; 1895, People v. Ezzo, 104 Mich. 341, 62 N. W. 714 (made more than three months after-
N. W. 407; 1872, State K.Shettlewortti, 18 Minn, wards; admitted); 1897, State v. Marcks 140
208, 212; 1863, State «. Knapp, 45 N. H. 148, Mo. 656, 41 S. W. 973, 43 S. W. 1095; 1903
155 (■' how much delay in making the complaint State v. Peres, 27 Mont. 358, 71 Pac. 162 ; 1874'
ought to weigh against the prosecution must Higgins v. People, 58 N. Y. 378, seniWe'c'' there
depend upon the circumstances of each par- is and can be no particular time specified ") •
ticular case ") ; 1900, People v. Flaherty, 162 1898, State v. Sudduth, 52 S. C. 488 30 S e'
N. Y. 532, 57 N. E. 73 (explanations nearly 408 ; 1899, Roberson v. State, — Tex Cr — '
nine months later, excluded); 1892, State v. 49 S. W. 398; 1874, State v Niles 47 Vt 82*
Wilkins, 66 Vt. 1 10, 28 Atl. 323. 86 (Royce, J. : "It has never been 'understood
4 1896 R. u. LiUyman, 2 Q. B. 167, 170 that mere lapse of time could be made the test
( provided it was made as speedily after the upon which the admis.sibility of such evidence
acts complained of as could reasonably be ex- depended ; the time that intervenes is a
pected ") ; 1898, People v. Lambert, 120 Cal. subject for the jury to consider "). The fol-
170, 52 Pac. 307 (delay held too long on the lowing cases lay down no rule: 1902 State v
facts); 1902, Lyles v. U. S., 20 D. C. App. 559, Snider, 119 la. 15, 91 N. W. 762; 1898 Leaare
563 (to a physician, four weeks later, when ap- v. State, 87 Md. 735, 41 Atl. 60 (compl'aint not
plying for an examination, excluded); 1887, too late on the facts); 1898, Com. v Clearv
^^°f\^< 0't,ulli,-an, 104 NY. 481 490, 10 172 Mass. 175, 51 N. E. 746 (trial judge's dis:
JN. li. 881 (excluding, where the complaint was cretion controls as to time ; whether lanse of
not made for nearly eleven months) ; 1887, time may ever exclude as a matter of law
Dunn V. State, 45 Oh. St. 249, 252, 12 N. E. undecided). '
826 (an unexplained delay of ten days excluded
the evidence).
1335
§ 1136
SUPPORTING A WITNESS.
[Chap. XXXVI
§ 1136. Same : Consequences of this Theory ; Details not admitted ; Com-
plainant must be a "Witness. When the complaint is admitted on this theory,
certain limitations upon its use follow logically and necessarily.
(1) Only the fact of the complaint, not the details. The purpose is to
negative the supposed inconsistency of silence by showing that there was not
silence. Thus the gist of the evidential circumstances is merely not-silence,
i. e. the fact of a complaint, but the fact only. That she complained of a rape,
or an attempt at rape, is all that principle permits ; the further terms of her
utterance (except so far as to identify the time and place with that of the
one charged) are not only immaterial for the purpose, but practically turn the
statement into a hearsay assertion, and as such it is inadmissible (except on
the third theory).^
(2) The woman must he a witness. Since the only object of the evidence
is to repel the supposed inconsistency between the woman's present testi-
mony and her former silence, it is obvious that if she has not testified at all,
there is no inconsistency to repel, and therefore the evidence is irrelevant.^
^ The English cases on this point are col-
lected post, § 1760 (under the Hearsay Excep-
tion), and need not be repeated here ; in tlie
American following it is to be noted that many
of these Courts do allow the details of the state-
ment to be used under the second theory, as
seen in the next section : Ala. : 1871, Lacy v.
State, 45 Ala. 80; 1872, Scott v. Stiite, 48' id.
420 ; 1884, Griffin v. State, 76 id. 29, 31 ; Ark. :
185.'>, Pleasant v. State, 15 Ark. 624, 649 ; 1897,
Davis V. State, 63 id. 470, 39 S. W. 356 (descrip-
tion given by a raped woman when shown the
defendant) ; Cat. : 1862, People v. Graham, 21
Cal. 261, 265 ; 1893, People v. Stewart, 97 id. 238,
241, 32 Pac. 8; 1898, People v. Lambert, 120
id. 170, 52 Pac. 307; 1903, People v. Wilmot,
139 id. 103, 72 P.ic. 838; Ga.: 1852, Stephen
V. State, 11 Ga. 225, 233; Ind. : 1869, Weldon
V. State, 32 Ind. 81; 1871, Thompson d. State,
38 id. 39; 1893, Poison v. State, 137 id. 519,
523, 35 N. E. 907; Ta.: 1871, State v. Rich-
ards, 28 la. 420; 1886, State v. Clark, 69 id.
295, 28 N. W. 606 ; 1886, State v. Mitchell, 68
id. 118, 26 N. W. 44 (but this does not exclude
the fact that the complaint spoke of a rape) ;
1890, McMurrin v. Higby, 80 id. .322, 325, 45
N. W. 877 (same) ; 1900, State v. Petersen, 110
id. 647, 82 N. W. 329 ('• exact particulars" in-
admissible) ; 1902, State v. Wheeler, 116 id.
212, 89 N. W. 978 (admissible only "in con-
firmation of the witness or to repel the pre-
sumption that her statement is a fabrication " ;
but the name of the ravisher as stated may
be included in proof of the fact of complaint) ;
La.: 1903, State v. McOov, 109 La. 682, 33 So.
730 (not clearl; Mf.: 1892 State v Mulkern,
85 Me. 106, 107, 26 Atl. 1017; Mich.: 1877,
Brown c. People, 36 Mich. 203 (admitted excep-
tionally; no principle laid down) ; 1879, iVIaillet
K. People, 42 id. 262, 264, 3 N. W. 854 (left un-
decided) ; 1886, People c. Gage, 62 id. 271, 28
N. W. 835 (treated as properly excluded by
the present principle, but nevertheless admitted
exceptionally by the res gestae principle, post,
1336
§ 1760); 1893, People v. Hicks, 98 id. 86, 89,
56 N. W. 1102 (excluding the details, and not
applying the res gestae exception] ; 1896, People
V. Duncan, 104 id. 460, 62 N. W. 556 (same) ;
1898, People v. Bernor, 115 id. 692, 74 N. W.
184, seinble; 1900, People j;. Marrs, 125 id. 376,
84 N. W. 284 (details excluded, unless they are
made at the time as res gestae or unless the com-
plainant is a child) ; Minn. : 1872, State v.
Shettleworth, 18 Minn. 208, 212; Mn.: State
«. Jones, 61 Mo. 232, 235 ; Nebr. . 1881, Oiesou
I'. State, 11 Nebr. 276, 279, 9 N. W. 38; 1886,
Mathews r. State, 19 id. 330, 337, 27 N. W. 234;
N. H.: 1863, State v. Knapp, 45 N. H. 148, 155;
N. Y. : 1.S69, Baccio v. People, 41 N. Y 265, 271 ;
Okl. : 1897, Harmon v. Terr., 5 Okl. 368, 49 Pac.
55 ; Tex. : 1874, Pefferling ». State, 40 Tex.
486, 492; Utah: 1898, State v. Halford, 18
Utah 3, 54 Pac. 819 (obscure); 1900, State v.
Neel, 21 id. 151, 60 Pac. 510 (not admissible,
except when so fresh as to be of the rts qestm) ;
Vt. : 1874, State o. Niles, 47 Vt. 82, 86'; 1892,
State V. Bedard, 65 id. 278, 284, 26 AtL 719,
sewble; Va. ; 1853, Brogy's Case, 10 Gratt. 722,
726; Wash.: 1898, State v. Hunter, 18 Wash.
670, 52 Pac. 247 ; Wis. : 1888, Hannon v. State,
70 Wis. 448, 452, 36 N. W. 1 ("except . . .
where the person ravished is very young," re-
ferring to the cases of § 1760, poet) ; 1902,
Bannen v. State, 115 id. 317, 91 N. W. 107 (same).
A few Courts have erroneously allowed the de-
tailed statement to be used even when pro-'
ceeding upon the present theory ; but these
rulinffs are probably due to a confusion of the
first and the second theory ; 1 830, State v.
DeWolf, 8 Conn. 93, 100; 1848, Johnson v.
State, 17 Oh. 593, 595 ; 1872, Burt -. State, 23
Oh. St. 394, 401.
2 The English Courts have not been clear
upon this point: 1839, R. n. Walker, 2 Moo. &
Rob. 212, Parke, B. (obscure) ; 1840, R. v. Meg-
son, 9 C & P. 420, Rolfe, B., semUe. contra;
1840, n. V. Guttridge, ib. 471, Parke, B., senible,
accord; 1841, R. w.' Alexander, 2 Cr. & D. 126,
§§1100-1144] EAPE COMPLAINANT. §1138.
In a rape, for instance, charged to have been committed on a frequented way,
and testified to by several bystanders, without calling the woman herself to
the stand, it is entirely immaterial whether she made complaint or not;
there is no story of hers before the court, and there is therefore no suspicion
about such a story and nothing to repel. On the other hand, if the woman
has taken the stand, it is immaterial whether she has been impeached or
cross-examined (a matter of importance under the next theory) ; the fact of
complaint may be introduced immediately, even by her own testimony in
chief.
§ 1137. Same: (2) Second Theory: Rehabilitation by Consistent State-
ment. It has been seen (ante, § 1122) that, under some circumstances,
and with limitations differently accepted in different jurisdictions, a witness
whose testimony has been impeached may be corroborated or rehabilitated by
evidence of his similar statements made at other times. This principle has
been resorted to for admitting the present sort of evidence. The story of
the woman is corroborated by showing that she told the same story at the
time of making complaint. Where a Court allows this form of corroboration
for other witnesses, it is a legitimate application of the principle to admit
such evidence here. Courts sometimes permit the evidence to be used " to
test " or " to verify " the woman's recollection ; but this is merely another way
of saying that her telling a similar story at the first occasion corroborates her
testimony on the stand. But in certain respects the conditions of use under
the present theory differ radically from those under the preceding one.
§ 1138. Same: Consequences of this Theory ; Details are admissible ; Com-
plainant must be a Witness, and Impeached. (1) The details of the state-
ment are admissible. Since the purpose is to show that she tells the same
story as on the stand, the whole of the complaint as made by her, with its
terms and details, is to be received, and not the mere fact of the complaint.^
(2) But it is obviously necessary, here as in the preceding theory, that the
woman must have testified. This requirement is common to both theories ;
for both assume that the purpose is to rehabilitate a witness, and if the
woman has not testified, there is no ope in that position.^
Pennefather, B., semhie, contra; 1896, E. v. C. & P. 420, Rolfe, B. ("to show her credit
Lillyman, 2 Q. B. 167, 177, semble, accord, and the accuracy of her recollection"; here
Most American Courts fail to make the re- the woman had died); 1840, R. v. Guttridge,
quirement; but its logical necessity has occar ib. 471, Parke, B., semble; U. S.: 1862, People
sionally been perceived : 1902, State v. Wolf, v. Graham, 21 Cal. 261, 265 (the child had been
118la. 564, 92 N. W. 673; 1898, Com. u. Cleary, called to the stand, but could not testify for
172 Mass. 175, 51 N. E. 746; 1887, People v. weeping); 1869, Weldon v. State, 32 lud. 81
O'Sulliyan, 10+ N. Y. 481, 486, 10 N. E. 880; (the child alleged to have been raped being
1853, Brogy's Case, 10 Gratt. 722, 727 (left un- incompetent through youth) ; 1871, Thompson
decided) ; and cases cited post, § 1138, par. 2. v. State, 38 id. 39 (the woman not having testi-
Compare the doctrines of §§284 and 1076, fied); 1895, State v. Meyers, 46 Nebr. 152, 64
ante. Note also that in Michigan and Wiscon- N. W. 697 (incapacity as witness) ; 1845, People
sin {supra, par. 1), the rule is partly contrary, v. McGee, 1 Denio 19, 22 (excluded wherever
t. e. only when the female is too young to the woman is incompetent or for other reasons
testify are details admitted. has not testified) ; 1848, Johnson v. State, 17
1 This is the doctrine accepted by all the Oh. 593, 595 ; and cases infra in note 3, espe-
cases in the next two notes. cially Hornbeck v. State, Oh., Phillips v. State,
* Eng.: 1839, R. v. Walker, 2 Moo. & Rob. Tenn. Compare the cases cited ante, « 1136
212, Parke, B., semble; 1840, B. o. Megson, 9 par. 2.
1337
§ 1138
SUPPOETING A WITNESS.
[Chap. XXXVI
(3) The witness must have been impeached. According to the general theory
of Corroboration by Similar Statements (a?t<«, § 1124), there must be some
kind of impeachment before the other statement can be offered. In different
jurisdictions different views are taken (ante, §§ 1125-1131) of what this im-
peachment must amount to, — whether it may be by general bad character,
by bias, by prior self-contradiction, or the like. The kind of impeachment,
therefore, which will be sufficient to admit the rape-complaint will depend
on the view taken of the general principle in the particular jurisdiction.^
§1139. Same: (3) Third Theory : Spontaneous or Res Gestae Declarations,
as Exception to Hearsay Rule. One of the exceptions to the Hearsay Rule
permits the spontaneous declarations of a person suddenly excited by an ex-
trinsic occurrence to be admitted as hearsay testimony {post, § 1747). The
declarations of a woman under the fright of a sudden assault have been
' The English rulings are obscure as to
whether iuipeachraent is necessary: 1S39, R.
V. Walker, 2 Mo. & Rob. 212, Parke, B.,
semhie (after cross-e.xaminatiou as to her story) ;
1840, R. v. Megson, 9 C. & P. 420, Rolfe, B.,
semhie, contra ; 1860, R. t\ Kyre, 2 F. & F. 579,
Byles. J., semble, contra ; 1877, R. v. Wood, 14
Cox Cr. 47, Bramwell, L. J., semble, contra ;
1896, It. V. Lillyman, 2 Q. B. 167, 177, contra
(aJmissible in chief, as bei\rin<r on the con-
sistency of the prosecutrix' conduct with her
testimony). The American rulinj^s requiring
impeaclunent .are as follows ; wliere no special
note is added, the Court simply requires im-
peachment of some sort witliout defining what
kind, and this impeachment may even cover
mere cross-examination: Ala: 1872, Scott v.
State, 48 Ala. 420 (" in corroboration . . if
she is assailed iu the matter of her com-
plaint"); 1884, Griffin v. State, 76 id. 29, 32
(after either cross-examination as to the par-
ticulars of the complaint or evidence intro-
duced "to impeach the prosecutrix"); 1901,
Brav V. State, 131 id. 46, 31 So. 107; 1902,
Oakley v. State, 135 id. 15, 33 So. 23; Ark. :
1855, Pleasant v. State, 15 Ark. 624, 649 (alter
a general impeachment of credit) ; 1899, Lee v.
State, 66 id. 286, 50 S. W. 517 (details admis-
sible after impeachment as to the complaint) ;
Ind. . 1869, Weldon v. State, 32 Iiid. 81, semble;
1871, Tliompson v. State, 38 id. 39 (obscure as
to the complaint itself ; but requiring " im-
peachment " to admit other similar statements
in general, following the usual rule for such
evidence) ; la.: 1886, State r. Clark, 69 la. 294,
28 N. W. 606. semble; 1890. McMurrin v. Rigby,
80 id. 322, 325, 45 N. W. 877, semble ,- La. : 1893,
State V. Langford, 45 La. An. ll?"?, 14 So. 181
(admissible only after impeachment); Mich.:
1893, People i^. Hicks. 98 Mich. 86, 56 N. W.
1102 (details admissible after impeachment;
here excluded, rape not being charged ; but
only indecent assault) ; Mo. : 1875, State o.
Jones, 61 Mo. 232, 235 ; Nebr.: 1881, Olssou v.
State, 11 Nebr. 276, 279, 9 N. W. 38; N M.:
1899, Terr. v. Maldonado, 9 N. M. 629, 58 Pac.
350 (on direct testimony, details cannot be
stated); N. Y. . 1869, Baccio </. People, 41
N. Y. 265, 269, semble ; N. C. : 1866. State v.
Marshall, Phillips 49, 51 (after a self-contra-
diction) ; 1899, State :•. Brown, 125 N. C. 606,
34 S. E. 105 (declaration admitted after im-
peachment of prosecutri.x on cross-examinar
tion); Or.: 1897, State v. Sargent, 32 Or. 110,
49 Pac. 889 (not admissil)le in chief); Tenn.:
1848, Phillips v. State, 9 Humph. 24:6, semble ;
Tex. : 1874, Pefferling v. State, 40 Tex. 486,
492; 1894, Thompson v. State, 33 Tex. Cr. 472,
475, 26 S. W. 987 (not admissible in chief). The
American cases not requiring impeachment are as
follows ; they allow the complaint-details to be
offered in chief: Conn. : 1830, State v. DeWolf,
8 Conn. 93, 100 (but here there had been cross-
examination on the facts of the charge) ; 1876,
State V. Kinney, 44 id. 153, 155 (same); 1880,
State V. Byrne, 47 id. 465 ; jl/a.ss. .• 1898, Com.
!•. Cleary, 172 Mass. 17,5, 51 N. E. 746, semble ;
N. Y.: 1845, People v. McGee, 1 Denio 19, 22;
Oh.: 1848, Johnson v. State, 17 Oh. 593, 595
(the declarations must be made " immediately "
after the alleged offence); 1849, Laughlin v.
State, 18 id. 99, 101 (same); 1858, McComhs
V. State, 8 Oh. St. 643, 646 (same) ; 1872, Burt
V. State, 23 id. 394, 401 ("immediately or soon
after " ; the particularity of the details being
left to the trial Court's discretion) ; 1879, Horn-
beck (.-. State, 35 id. 277, 279; 1887, Dunn v.
State, 45 id. 249, 251, 12 N. E. 826 (" immedi-
ately " ; yet they are admissible after a delay,
if it is accounted for, the Court applying here
the rule as to admitting the fact of complaint,
supra) ; US.: 1834, EUicott v. Pearl, 1 McLean
206, 211 ; Utah : 1900, State i-. Imlay, 22 Utah
156, 61 Pac. 557 (details admissible, in corrobo-
ration of the complainant's testimony, if made
immediately after the act). It will be noted
that most of the rulings prescribe something
as to the time of the compLaint. But this is
really unnecessary, under the present theory
of Corroboration by Similar Statements ; the
time of the statements is immaterial {ante,
§ 1126). This requirement as to time comes
simply from a confusion of the first theory
above (admitting the fact of the complaint)
with the second theory (admitting the details).
1338
§§ 1100-1144] EAPE COMPLAINANT. § H^l
regarded by some Courts as receivable under this exception. The proper
limitations are better considered in connection with the Hearsay Eule {post,
§ 1760). But the differences and similarities may be here pointed out be-
tween the rules of this theory and of the preceding ones.
(1) The details of the statement are admissible, because the rule is admitting
a hearsay assertion, i. e. in effect, testimony.
(2) The woman need not le a witness, because the hearsay is admitted for
its own sake, and not as corroborating her testimony or as in any way de-
pendent upon it.
(3) If a witness, she need not have leen impeached, because this requirement
is wholly peculiar to the preceding theory.
§ 1140. Summary. (1) The fact of the complaint is always and legiti-
mately admissible under the first theory above. (2) The details are legiti-
mately receivable. under either the second or the third theory; but the third
has little vogue, while the second is widely accepted. Each has its own
logical requirements, different from the other. (3) Both the first and the
second theories may be accepted, without conflict. In most jurisdictions,
the first theory is used to admit the fact of complaint, and then the second
theory is invoked to admit the details ; and this is proper, if the conditions
of the second theory are observed.
§ 1141. Complaint in Travail by a Bastard's Mother. (1) At a time when
parties and interested persons were disqualified, an exception was made by
statute (resting probably on old traditional practice i), in several of the
colonial communities, and the mother permitted to be a witness in a prose-
cution for bastardy or suit for filiation ; this was indeed probably the first
statutory exception to the general disqualification (ante, § 575). But it was
conditioned on the fact that the mother had in her travail named and
accused as the father the very person now on trial as defendant. This was
the law in Massachusetts and New Hampshire ; ^ while in Maine and Con-
necticut the requirement was more rigid, and formed a condition precedent
(as sometimes construed) to the maintenance of the action.^ The theory on
1 1637, Bishop of Lincoln's Trial, 3 How. to the maintenance of the action, not merely to
St. Tr. 769, 773 (witnesses to P. as the father of her competency) ; 1874, Ray v. Ooflan, 123 Mass.
a bastard testified " some by confession of her- 65, semble (the old requirement is abolished,
self being the mother of the child who were through the repeal of the statute by Gen. St.
present at the time of her delivery "). c. 72, § 8) ; 1888, Leonard v. Bolton, 148 id. 66,
2 Mass. : 1807, Drowne v. Stimpson, 2 Mass. 18 N. E. 879 (same) ; N. H. : 1825, Railroad v.
441 (under St. 1785, c. 66, Mar. 16. the accu- J. M., 3 N. H. 135, 140 (the requirement of
sation during travail and the subsequent travail-accusation is not a condition precedent
constancy is a condition precedent to her com- to the right of maintenance but only to the
petency, and the facts must be evidenced by mother being a witness ; here proceeding upon
other witnesses) ; 1809, Com. v. Cole, 5 id. 517 the construction of St Feb. 11, 1791) ; 1845,
(time of travail, determined) ; 1827, Bacon v. Long v. Dow, 17 id. 470 (statute applied to
Harrington, 5 Pick. 63 (time of travail deter- admit the mother as witness ; time of "travail,"
mined); 1829, Maxwell v. Hardy, 8 id. 560 defined); 1846, Rodimon v. Reding, 18 id. 431,
(variance of accusation before travail does not 435 (same; form of declaration, defined),
disqualify); 1838, M'Managil v. Ross, 20 id. ^ Me.: 1830, Dennett v. Kneeland, 6 Me.
99 (travail-accusation required even for com- 460 (travail-accusation, held a condition pre-
plaints filed after birth of child) ; 1852, Bailey cedent to the mother's competency, under the
V. Chesley, 10 Cush. 284 (form of accusation, statute) ; 1831, Tillson v. Bowley, 8 id. 163
determined); 1868, Stiles v. Eastman, 21 id. 132 (accusation held sufficient); 1844, Burgess v.
Cthe travail-accnsation is a condition precedent Bosworth, 10 Shepl. 573 (the required constancy
VOL. II. — 22 1339
§ 1141
SUPPOETING A WITNESS.
[Chap. XXXVI
which these travail-accusations were thus given force was a composite one.
Partly it was the present theory of corroborating by consistent statements, —
in particular, by statements calculated to rebut the suspicion of recent con-
trivance {ante, § 1129). Partly the theory of the Hearsay exception for
spontaneous utterances (res gestce) lent its aid (post, § 1747) ; for the painful
circumstances of the occasion (as the judges repeatedly pointed out) gave
some guarantee of sincerity. Partly, too, the Hearsay exception for dying
declarations furnished a close analogy (post, § 1438), for the apprehension
of death was present. These various considerations united to give a just
evidential force to such utterances.
(2) Since disqualification by interest has been abolished, and the mother's
competency no longer depends on this requirement, the use of such declara-
tions involves solely a question of admissibility for their own sake. The
result in the different jurisdictions has been diverse, (a) In the States in
which the requirement originally obtained, the use of the travail-accusation
still survives as admissible evidence by express new statute, or by the preser-
vation of former practice.* (6) In a few other States similar statutes have
introduced a sanction, based more directly on the theory of dying declara-
tions.^ (c) Earely, a Court is found recognizing on common-law principles
dates from the time of first accusation of the
defendant, not from the time of first accusation of
any one) ; 1867, Wilson v. Woodside, 57 Me. 489
(voluntary accusation, without questioning, suf-
fices); 1868, Totmau v. Forsaith, 55 id. 360
(form of accusation, determined) ; 1898, Palmer
V. McDonald, 92 id. 125, 42 Atl. 315 (under Pub.
St. 1883, c. 97, § 6, accusation at travail and
constancy in the accusation are both essential to
the action ; but the constancy does not relate to
accusations between time of travail and time of
charge before magistrate) ; Conn.: 1788, Hitch-
cock V. Grant, 1 Root 107 (plea in bar allowed;
applying a statute of 1702); 1796, Warner v.
Willey, 2 id. 490 ; 1804, Davis a. Salisbury, 1
Day 278, 282 (but otherwise in a suit for main-
tenance by the selectmen, not the woman) ;
1823, Judson u. Blanchard, 4 Conn. 557,565;
1825, Cliaplin v. Hartshorne, 6 id. 41, 44 (same) ;
1876, Booth V. Hart, 43 id. 480, 485 (holding
that the original statute required the travail-
accusation and the subsequent constancy, merely
as a condition precedent to the mother's testi-
fying at the trial by way of exception to the'
general rule of disqualification for parties, and
that therefore the statute of 1848, making all
parties competent, removed the necessity of
prior accusation as a condition precedent to
competency).
* Conn.: Gen. St. 1887, § 1207 (after the
woman's complaint on oath, constancy of accu-
sation when " put to her discovery in the time
of her travail and also examined on the trial
of the cause" is prima facie evidence); 1879,
liobbins v. Smith, 47 Conn. 182, 189 (even
since proof of constancy ceased to be a require-
ment, it still remained admissible ; here also ad-
mitting declarations before the child's birth;
Carpenter, J., diss, on the last point) ; 1889,
Benton v. Starr, 58 id. 285, 20 Atl. 450 (the
1340
woman's constant accusations received, includ-
ing details of time and place) ; 1896, Harty v.
Malloy, 67 id. 339, 36 Atl. 259; Me.: 1874,
Sidelinger i: Bucklin, 64 Me. 371 (repetition of
the accusation, before and after the time of
examination, excluded, as governed by the ordi-
nary rule for witnesses) ; 1891, Mann «. Max-
well, 83 id. 146, 21 Atl. 844 (accusations during
travail, admitted); Mass.: Pub. St. 1882, c. 85,
§ 16 (if, upon examination in writing iinder oath
at time of making formal accusation, she accuses
a certain man, and " being put upon the dis-
covery of the truth respecting such accusation
in the time of her travail she accuses the same
man . . . and has continued constant in such
accusation, the fact of such accusation in time
of travail may be put in evidence upon the
trial to corroborate her testimony"); Rev. L.
1902, c. 82, § 16 (statute rewritten, without
material change of rule) ; 1862, Eddy v. Gray,
4 All. 435, 438 (statute applied) ; 1874, Reed
V. Haskins, 116 Mass. 198 (by express stat-
ute, the mother may testify to her travail-
accusation, even since interested parties are
made competent); 1874, Ray u. Coffin, 123 id.
365 (if there was no travail-accusation, subse-
quent constancy, or the failure to accuse any
other person, is inadmissible); 1887, Tacev v.
Noyes, 143 id. 449, 9 N. E. 830 (time of travail
determined); 1888, Leonard v. Bolton, 148 id.
66, 18 N. E. 879 (travail-accusation admissible,
even where complaint is not filed till after
birth) ; 1891, Scott i: Donovan, 153 id. 378,
26 N. E. 871 (time of travail determined).
» Del. Rev. St. 1893, c. 77, § 15 (if the
mother be dead at time of trial of bastardy
charge, "her declaration made in time of travail
and persevered in as her dying declaration shall
be evidence"); Miss. Annot. Code 1892, §257
(" declarations in her travail, proved to be her
§§ 1100-1144] EAPE COMPLAINANT. § 1142
the traditional admission of travail-accusations. There is no reason why
this should not be the general rule.® (d) Commonly, in the jurisdictions
having no statutes, admissibility is not conceded.^
§ 1142. Owner's Complaint after Robbery or Larceny. Statements made
by the owner or possessor of goods after an alleged robbery or larceny of
them may be affected by several principles. (1) The failure of the person to
make complaint would be conduct indicating a non-belief in the genuine
occurrence of the injury charged, and would seem to be clearly admissible
against him (under the principle of § 284, ante). Accordingly, to repel in
advance this inference, it would be proper to show for the prosecution, as in
a charge of rape {ante, § 1135), that the person was not silent but did in fact
complain with reasonable promptness.^ Upon this principle, however, as in
the case of rape {ante, § 1136), only the fact of the complaint, and not the
details of the statement, would be admissible. Such seems to be the English
practice.^ (2) But on the theory of rehabilitating a witness, by showing his
prior consistent statements, the details of the statement would become admis-
sible; the ordinary conditions, however, would on this theory be {ante,
§§ 1124-1131) that the injured person became a witness and that he was
impeached as having recently fabricated the story. It is on this theory that
some Courts act with reference to rape-complaints {ante, § 1138) ; but it does
not appear to be definitely applied by any Court for the present sort of
evidence.* (3) On the theory {post, § 1749) of the Exception to the Hearsay
Eule for Spontaneous Exclamations (or res gestce statements), it would seem
that, after some evidence of the robbery or larceny had been offered, the
details of complaints or outcries made shortly after the rohhery (or, if a lar-
ceny, shortly after the discovery of it) should be receivable. This is the
attitude of some Courts towards rape-complaints {post, § 1761); and a num-
ber of Courts seem also to apply it to the present class of evidence. Such
rulings might have founded themselves upon the ancient doctrine of hue-
and-cry {fost, § 1760), but no connection between the two seems to be as-
sumed in the opinions ; they proceed mainly upon a ruling in the Supreme
Court of Michigan. The Courts admitting such statements seem not to go
dying declarationa," of deceased mother in held iDadmissible, except to explain away other
bastardy proceedings, admissible). inconsistent statements) ; 1865, Richmond v
6 1887, Easleyi). Com., —Pa. — , 11 Atl. State, 19 Wis. 307,309.
220 (declarations " in that extremity of labor," Distinguish the use of the mother's examina-
believing herself to be in peril of death, ad- thn before the magistrate {post, § 1417).
mitted). 1 Or, if in fact no complaint was made, the
' 1858, State v. Hussey, 7 la. 409 (declara- reason for silence may be shown; 1846, R. v.
tions of the mother "while in extremo travail." Gandfield, 2 Cox Cr. 43 (to explain why' a wit-
held not admissible) ; 1898, State v. Spencer, 73 ness had not told of a burglary, her husband's
Minn. 101, 75 N. W. 893 ; 1894, State v. Tipton, directions to her not to tell of it because he was
15 Mont. 74, 38 Pac. 222 (mother's declarations afraid of revengeful injuries were received)
of paternity in travail, excluded) ; 1895, Stop- « 1834, R. v. Wink, 6 C. & P. 397 (the prose-
pert V. Nierle, 45 Nebr. 105, 63 N. W. 382 (ex- cutor was allowed to state that he made com-
clnded at common law ; here the statute admits plaint to a constable the next morning early,
the examination only, but by either party); but not to state what person he named as the
1899, Poyner v. State, 40 Tex. Cr. 640, 51 S. W. robber). But see R. v. Luudy, 6 Cox Cr. 477
377 (incest; the woman's accusation of the de- (1854).
feudaut, just after a child's birth, as the father, * See the cases in the next note
1341
§ 1142 SUPPORTING A WITNESS. [Chap. XXXVI
definitely upon either this or the preceding theorj'.* (4) Some Courts, not
accepting either of the two preceding theories as valid, reject altogether the
details of such complaints.*
Where the defendant is a bailee charged with the loss of goods, and he pleads
robbery as an excuse, it would seem that he is in the same position eviden-
tially as the owner or possessor in a prosecution for robbery. The fact of
his speedy complaint should therefore be received (under (1) supra), as also
the details of it (under (2) or (3) supra).^
§ 1143. statements by Possessor of Stolen Goods. When, on a charge
of larceny or robbery, the defendant's being found in possession of the
stolen goods is relied upon in evidence against him, it would seem that his
prior assertions, explaining his source of acquisition, should be admitted upon
the principle {ante, § 1129) which admits consistent statements indicating
that his explanation on the trial was not of recent contrivance. This pre-
supposes, in strictness, that he has himself become a witness, and is thus
open to rehabilitation in this manner. But since at common law the accused
could not be a witness for himself, this application of the principle seems
not to have been explicitly recognized. Its only limitation would be that
the statements should have been made before the motive for deliberate
contrivance could have arisen ; and this would fairly represent the rule laid
down in most of the cases. But, though such statements are by most Courts
received, their admission is placed on a theory apparently that of the Verbal
Act doctrine ; and accordingly the precedents are examined under that head
(post, § 1781).
4 1896. Goon Bow v. People, 160 lU. 438, 43 Ind. 433, 36 N. E. 1113 (exclnded; to be treated
N. E. 593 (statemeuts made iu pursuit of the apparently only on the ordinary principle of
robber, admitted) ; 1887, State v. Driseoll, 72 § 1749, post) ; 1890, Jones v. Com., 86 Va. 743,
la. 583, 585, 34 N. W. 428 (outcry and declara- 10 S. E. 1004.
tions " in the effort to arrest the robbers," ad- ' 1826, Tompkins v. Saltmarsh, 14 S. & R.
nutted; Rothrock, J., diss.); 1874, People o. 275, 279 (action against a bailee for careless
Morrigan, 29 Mich. 5 (the complainant, in a losing; plea, robbery ; "evidence ought to have
trial for larceny, was allowed to state that he been received of the hue and cry immediately
had before described to a detective one of the after the discovery, his assiduous and inde-
stolen notes found on the defendant ; Campbell, fatigable pursuit and strict search, both at the
J. : " The conduct of a party complaining of a inn and the steamboat. If he had made no
crime is often of considerable importance in de- complaint or no inquiry, remained with his
termining his honesty," and is to be considered arms folded and his mouth shut, ... the jury
as res gestai rather than as hearsay) ; 1874, Lam- would have drawn the most unfavorable conclu-
bert f. People, ib. 71 (similar) ; 1882, Driseoll v. siona from it. . . . All this, however, is to be
People, 47 id. 416, 11 N. W. 221 (complaints of understood of acts immediately preceding and
robbery, made immediately, were admitted as a directly following, concurrent acts and declara-
part of the whole affair) ; 1882, People v. Simp- tions, not acts and declarations not known or
sou, 48 id. 479, 12 N. W. 662 (similar declara- commenced until after a lapse of time and sus-
tlons admitted as "illustrative"); 1893, People picion afloat"); 1852, Lampley v. Scott, 24
V. Hicks, 98 id. 86, 89, 56 N. W. 1102 (restricting Miss. 528, 534 (assumpsit for money delivered
the rule of Lambert's case narrowly); 1901, to defendant to be carried for plaintiff ; defend-
State V. Smith, 26 Wash. 354, 67 Pac. 70 (com- ant pleaded that he had been robbed ; his decla-
plaint of the robbed person, " almost imme- rations while in the swamp, where the alleged
diately after the time of the alleged offence," robbery occurred, to passers-by, his appeals for
admitted"). assistance, and his letter written to plaintiff
6 1892, Boiling v. State, 98 Ala. 80, 82, 12 immediately afterward, were admitted follow-
So. 782 (larceny); 1867, People v. McCrea, ing Tompkins v. Saltmarsh). Contra: 1867,
32 Cal. 98; 1895, Brooks v. State, 96 Ga. 353, Tucker v. Hood, 2 Bush 85 (action for money
23 S. E. 413 (the claim made by the owner of collected; plea, robbery; defendant's declara-
goods stolen, when certain goods were shown tions and condact a few hours afterwards,
him, excluded); 1893, Shoecraft v. State, 137 exclnded; no precedent cited)
1342
§§ 1100-1144]
EOBBERY, LARCENY, ETC.
S 1144
§ 1144. Accused's Consistent Exculpatory Statements. It would seem
that, in a liberal view of the principle of § 1129, ante, the statements of an
accused person, made before or upon accusation made {i. e. before motive for
deliberate contrivance could have operated), should be receivable, whether or
not he becomes a witness. Probatively, an accused person's protestations of
innocence, made in such circumstances, seem to have, for any one inquiring
without prepossessions as to the rules of evidence, a value similar to the class
of statements dealt with in § 1129. Moreover, they serve to repel (as in the
cases of the preceding sections) the inference from silence {ante, § 284).
Most Courts dismiss them as ordinary hearsay assertions ; ^ this result seems
harsh and unreflecting. But a few Courts indicate a willingness to accept
them.^ An accused's statements may of course be admissible under other
principles, — for example, as exculpatory parts of a confession {-post, § 2115),
as statements of a mental condition {post, § 1732), or as spontaneous excla-
mations {post, § 1749) ; his conduct indicating consciousness of innocence
{ante, § 293) may also be admissible. What has been said elsewhere {post,
§ 1732, par. 3), as to the judicial treatment of similar questions, may be
urged again here.
1 1873, Ray v. State, 50 Ala. 104, 107 (de-
fendant's denials on another occasion, excluded) ;
1891, U. S. 1). Cross, 20 D. C. 365, 376 (denials,
■when arrested for murder, excluded) ; 1878,
Turner ». Com., 86 Pa. 54, 71 (murder; decla-
rations of innocence, excluded) ; 1897, State
V. Carriugton, 15 Utah 480, 50 Fac. 526 (made
after knowing of the charge) ; and compare the
cases cited ante, § 1133. But the following case
is sound: 1897, People v. Ebanks, 117 Cal. 652,
49 Pac. 1049 (declarations under hypnotic in-
fluence after arrest, excluded). So also the
following: 1871, State v. Vandergraff, 23 La.
An. 96 (R. S. § 1010, authorizing the accused's
examination by a magistrate to be " evidence,"
does not admit it for the defendant) ; 1879,
State 1). Toby, 31 id. 756 (same; DeBlanc, J.,
diss.) ; 1879, State v. Dufour, ib. 804 (same).
2 1870, Pearson, C. J., in State v. Worthing-
ton, 64 N. C. 594, 595 (" [Evidence was offered]
of whut was said by the defendant when he
showed the cotton to Wilson, who claimed it as
his cotton and charged that it had been stolen
out of his gin the night before. . . . When a
man who is at liberty to speak is cliarged with
a crime and is silent, his silence is a circum-
stance tending to show guilt. It follows that if
he denies the charge, or says anything in ex-
planation, these declarations may be given in
evidence in his favor, to pass before the jury for
what they are worth") ; 1894, Boston v. State,
94 Ga. 590, 21 S. E. 603 (statements made
within half an hour, when voluntarily surren-
dering himself, admitted).
1343
§ 1150
BOOK I, PAET I.
[Chap. XXXVII
Title III : AUTOPTIC PEOFEEENCE
(EEAL EVIDENCE).
CHAPTER XXXVII.
1. General Principle.
§ 1150. Definition of the Process.
§ 1151. General Principle,: Autoptic Profer-
ence always Proper, unless Specific Reasons of
Policy apply.
§ 1152. Sundry Instances of Production and
Inspection in Court.
2. Independent Principles incidentally
affecting Autoptic Preference.
§ 1154. Irrelevaoat Facts not to be proved
(Color, Resemblance, Appearance, etc., to show
Race, Paternity, Age, etc. ; Changed Conditions
of Premises).
§ 1155. Privilege, as a ground for Prohibition
(Self-Crimination, Plaintiff suing for Corporal
injury).
§ 1156. Sundry Independent Principles some-
times involved (Handwriting, Hearsay, Photo-
graphs, etc.).
3. Limitations germane to the Process
itself of Autoptic Preference.
§ 1 1 57. Unfair Prejudice to an Accused Person
(Exhibition of Weapons, Clothes, Wounds, etc.).
§ 1158. Unfair Prejudice to a Civil Defend-
ant, in Personal Injury Cases.
§1159. Indecency, or other Impropriety;
Liquor sampled by Jurors.
§ 1160. Incapacity of the Jury to appreciate
by Observation (Experiments in Court; Insane
Person's Conduct).
§ 1161. Physical or Mechanical Inconvenience
of Production ; Patent Infringements.
§1162. Production Impossible; View by
, Jury; (1) General Principle.
§ 1163. Same: (2) View allowable upon any
Issue, Civil or Criminal ; Statutes.
§ 1164. Same: (3) View allowable in Trial
Court's Discretion.
§1165. Same: (t) View by Part of Jury.
§1166. Same: (5) Unauthorized View.
§ 1167. Same : Principles to be distinguished
(Juror's Private Knowledge ; Official Showers ;
Accused's Presence ; Fence and Koad Viewers).
§ 1168. Non-transmissibility of Evidence on
Appeal; Jury's View as " Evidence."
1. General Principle.
§ 1150. Definition of the Process. The three modes by which a tribunal
may properly acquire knowledge for making its decisions have been already
defined and distinguished {ante, § 24). They are circumstantial evidence,
testimonial evidence, and " real " evidence. In arriving now at the principles
regulating the use of the third mode, it is necessary to recall briefly the
nature of this mode as distinguished from the other two.
If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on the
subject would be the testimony of a witness who had seen the arm ; in be-
lieving this testimonial evidence, there is an inference from the human asser-
tion to the fact asserted. A second source of belief would be the mark left
on some substance grasped or carried by the accused ; in believing this cir-
cumstantial evidence, there is an inference from the circumstance to the
thing producing it. A third source of belief remains, namely, the inspection
by the tribunal of the accused's arm. This source differs from the other two
in omitting any step of conscious inference or reasoning, and in proceeding
by direct self-perception or autopsy. It is unnecessary, for present purposes,
to ask whether this is not, after all, merely a third source of inference, i. e.
an inference from the impressions or perceptions of the tribunal to the objec-
tive existence of the thing perceived. The law does not need and does not
1344
§§ 1150-1168] EEAL EVIDENCE. § 1150
attempt to consider theories of metaphysics as to the subjectivity of knowl-
edge or the mediateness of perception. It assumes the objectivity of external
nature ; and, for the purposes of judicial investigation, a thing perceived by
the tribunal as existing does exist. There are indeed genuine cases of infer-
ence by the tribunal from things perceived to other things unperceived — as,
for example, from a person's size, complexion, and features, to his age ; these
cases of a real use of inference can be later more fully distinguished {post,
§ 1154). But we are here concerned with nothing more than matters directly
perceived, — for example, that a person is of small height or is of dark com-
plexion ; as to such matters, the perception by the tribunal that the person
is small or large, or that he has a dark or a light complexion, is a mode of
acquiring belief which is independent of inference from either testimonial or
circumstantial evidence. It is the tribunal's self-perception, or autopsy, of
the thing itself. From the point of view of the litigant party furnishing this
source of belief, it may be termed Autoptic Proference}
The nature of this source of belief, as distinguished from that of inference
from evidence, has more than once been noted in judicial utterances :
Ante 1726, Chief Baron Gilbert, Evidence, 2: "All certainty is a clear and distinct
perception ; and all clear and distinct perceptions depend upon a man's own proper senses ;
. . . and when perceptions are thus distinguished on the first view, it is called Self-evi-
dence, or intuitive knowledge. . . . Now most of the business of civil life subsists on the
actions of men, that are transient things, and therefore oftentimes are not capable of
strict demonstration (which, as I said, is founded on the view of our senses), and there-
fore the rights of men must be determined by probability. Now as all demonstration
is founded on the view of a man's own proper senses, by a gradation of clear and distinct
perceptions, so all probability is founded upon obscure and indistinct views, or upon re-
port from the sight of others; . . . and this is the original of trials, and all manner of
evidence."
1888, Garrison, J., in Gmtnt v. State, 50 N. J. L. 490, 495, 14 Atl. 600 : " Inspection is
like [an] Admission, in that, while not testimony, it is an instrument for dispensing with
testimony." ^
1 The word " aatoptic " has a precedent in compare the " self-evidence " of Gilbert, C. B.,
the language of C. J. Robertson, quoted in the and the " autopsy " of liobertson, C. J., quoted
next section. The word " proference " is coined, post.
in analogy to "reference," "inference," "con- ^ Compare also the traditional phrase about
ference," " deference," from the Latin proferre, a record " tried by inspection," i.'e. its contents
whose form profert is intimately associated, in determined by direct perception ; and also the
history and in principle, with the process of language in the quotations in the next section,
autoptic proference. _ The following passage, though dealing with a
The terra " real evidence " has sometimes judge's peculiar province, rests upon the same
been applied to this source of belief; but not thought: 1768, Blackstone, Commentaries, III
happily; first, because "real" is an ambiguous 331 : "Trial by inspection, or examination is
term, and not sufficiently suggestive for the when for the greater expedition of a cause! in
purpose; secondly, because the process is not some point or issue being either the principal
the employment of "evidence" at all, in the question or arising collaterally out of it but
strict sense; and, thirdly, because the inventor being evidently the object of senses, the judees
of tlie term (Bentham, Judicial Evidence, III, of the Court, upon the testimony of their own
26 ff ) used the phrase in a sense different from sense, shall decide the point in dispute •
that above and different from that commonly and therefore when the fact, from its nature'
now attached to it ; he meant by it any fact must be evident to the Court either from ocular
about a material or corporal object, e. g. a book demonstration or other irrefragable proof there
or a human foot, whether produced in court or the law departs from its usual resort the ver
not; It IS only by later writers that the produc- diet of twelve men, and relies on the iuderaent
tion in conrt is made the essential feature. As of the Court alone."
to the novelty of the term " autoptic proference,"
1345
§ 1150 REAL EVIDENCE. [Chap. XXXYTI
It follows, on the one hand, that autoptic proference, or the tribunal's self-
inspection, is to be distinguished from the use of testimonial and circum-
stantial evidence as the basis of an inference. Autoptic proference calls for
no inference from the thing perceived to some other thing ; and in this sense,
but in this sense only, autoptic preference is not evidence, i. e. not evidence in
so far as evidence implies a process of inference. On the other hand, it is
clear that autoptic proference is one of the three sources of belief, and that
it may be employed in litigation in order to convince the tribunal of desired
facts. It is thus evidence, in the sense that evidence includes all modes,
other than argument, by which a party may lay before the tribunal that
which will produce persuasion. It is something more than and different
from testimonial or circumstantial evidence, and it is to be included among
the kinds of evidence in the broader sense of that term. The due appre-
ciation of this is of considerable practical consequence in solving one of the
problems connected with a jury's view {post, § 1168).
§ 1151. General Principle: Autoptic "Proference always Proper, unless
Specific Reasons of Policy apply. It is obvious that, from the point of view
of logic or probative value, none of the limitations have here to be examined
which always affect the use of testimonial and circumstantial evidence. If
we offer to prove that a man was of negro complexion by the circumstance
that his grandchild is of negro complexion, it may be a .question whether
this fact is of enough probative value to be admissible. Or, if we offer to
prove it by the assertion of a witness on the stand, the witness must first
appear to be so qualified that his assertion is worth receiving. But when
we offer to produce in Court the man himself, no inference is necessary, and
the restrictions and preliminary inquiries that are due to the use of circum-
, stantial or testimonial inferences are entirely dispensed with. There may be
■ objections based on privilege or on auxiliary policy {post, §§ 1157-1168), but
'■ there can be none based on relevancy or probative value. There is always a
question as to the relevancy of a circumstance, or the qualifications of a wit-
ness ; there can never be a question as to the relevancy of the thing itself,
autoptically produced. Add to this that, since either sort of evidence, testi-
monial or circumstantial, is one step removed from the thing itself to be
proved, the production of the thing itself would seem to be the most natural
and ef&cient process of proof. If the question is whether a shoe is fastened
by laces or by buttons, the testimony of one who has seen the shoe or the
circumstance that a button has fallen from the shoe, can at least be no more
satisfactory than the inspection of the shoe in Court. Accordingly, it might
be asserted, cb priori, that where the existence or the external quality or
condition of a material object are in issue or are relevant to the issue, the
inspection of the thing itself, produced before the tribunal, is always proper,
provided no specific reason of policy or privilege bears decidedly to the con-
trary. Such ought to be, and such apparently is, the principle accepted by
the Courts :
1346
§§ 1150-1168] GENEKAL PEINCIPLE. § 1152
1811, Coulter, J., in Hook v. Pagee, 2 Munf. 379, 384 (allowing the inspection of an
alleged slave) : " There can be no objection to the other finding, to wit, ' that the plain-
tifE Nanny is a white woman.' The jury find this fact upon their own knowledge, — in
other words, by inspection. Was this improper? ... If the plaintiff Nanny had not
been before the jury, they must have found their verdict upon the testimony of others,
which would have amounted only to a probability. But here they have the highest evi-
dence, the evidence of their own senses. . . . The jury believe their own senses, in
preference to the opinions of the witnesses."
1835, Robertson, C. J., in Gentry v. McGinnis, 3 Dana Ky. 382, 386 (the jury had been
allowed to inspect the defendant, to see if she was a white woman) : " The counsel denies
that personal inspection by the jurors on the trial is proper or allowable evidence. . . .
To a rational man of perfect organization the best and highest proof of which any fact is
susceptible is the evidence of his own senses. This is the ultimate test of truth, and is
therefore the first principle in the philosophy of evidence. . . . Hence, autopsy, or the
evidence of one's own senses, furnishes the strongest probability and indeed the only
perfect and indubitable certainty of the existence of any sensible fact. . . . [Jurors,]
when they decide altogether on the testimony of others, do so only because the fact to be
tried is unsusceptible of any better proof. Their own personal knowledge of the fact
would always be much more satisfactory to themselves, and afford much more certainty
of truth and justice. . . . Hence the policy of having a jury of the vicinage; and hence,
too, jurors have not only been permitted but required to decide on autoptical examina-
tion wherever it was practical and convenient."
1876, Beck, J., in Stockwell v. R. Co., 43 la. 474 (admitting evidence of a trial in the
jury's presence of the practicability of a train running a certain distance without steam) :
" The question involved is a physical fact. Its solution by the experiment would leave
no chance for error in judgment or opinion. Why not employ the experiment to reach
the truth, — the end and aim of all trials at law ? . . . Suppose experts should differ as
to the effect of the union of two chemical bodies; what objection could exist to an experi-
ment before the jury to determine the true result ? Suppose a question arose in a case
as to the weight of a gold coin, the witnesses of the parties giving conflicting evidence on
the subject; why not weigh it in the presence of the jury? Or suppose an alteration in
a deed can only be determined by the use of artificial assistance, to the eye ? Why should
not jurors be permitted to use such aids to enable them to decide the case in accordance
with the very truth ? But the questions here presented we do not determine ; we sug-
gest these thoughts to show that there are arguments based upon the high considerations
of justice and truth in support of the propriety of the alleged experiment," if fairly
conducted.
1877, Rodman, J., in Warlicky. While, 76 N. C. 175, 179: " On general principles it
would seem that, when the question is whether a certain object is black or white, the
best evidence of the color would be the exhibition of the object to the jury. . . . Why
should a jury be confined to hearing what other men think they have seen, and not be
allowed to see for themselves ?
" ' Aut agitnr res in scenis, aut acta refertur.
Segnius irritant animos demissa per aurem,
Quam quas sunt ocnlis snbjecta fidelibus, et quae
Ipse sibi sibi tradit spectator ' (Horatius ad Pisones)."
§ 1152. Sundry Instances of Production and Inspection in Court. This
source of persuasion has been resorted to in a great variety of instances.
Among the earliest examples of its recognition are the view of realty ; ^ the
proceeding de ventre inspiciendo in cases of a widow professing to be with
child entitled to inherit and of a convicted woman asking respite from
1 See the authorities pos(, § 1162.
1347
§ 1152 EEAL EVIDENCE. [Chap. XXXVII
execution on account of pregnancy ; ^ the coroner's inquest over a deceased
person; the inspection of a maimed person on a trial for mayhem;^ the
inspection of one pleading non-age or infancy ; * and the Chancellor's exami-
nation of one protesting against being kept under restraint as an idiot or
lunatic* Proof is often made by the production of a person whose color is
in issue ;^ of a person alleged to be intoxicated,^ or incompetent,^ or to
be identical with another person,^ or to resemble another person.^ Tools,
weapons, and other objects connected with a crime may be proved by pro-
duction,^ as well as the clothing or mutilated members of the deceased,^ or
the injured members of a plaintiff suing for compensation.^ The nature of
goods may be made to appear by the inspection of a sample,^ or the opera-
tion of a force whose qualities are in issue by material instances of the effect
of that operation.^" In short, it does not appear that there is, in the nature
of the process, any distinction to be taken as regards the kind of fact pre-
sented for inspection. Anything cognizable by the senses of the tribunal
may thus be offered.
Nor is any distinction to be taken as regards the mode of presentation by
the party. An object may be merely set forth for inspection, or some experi-
mental process may be conducted in the tribunal's presence ; ^^ whether the
mode involves a showing or a doing, neither is in itself objectionable. Nor
is any distinction to be taken as to the mode of inspection by the tribunal.
It may merely employ its senses directly ; or it may use some suitable me-
chanical aid, such as a microscope ; ^^ and it may merely look on, or it may
take an active share in the process of experimentation.^^ Nor is there any
distinction as to the place of inspection ; the thing may be brought into the
court, or the tribunal may go to the place where the thing is.^*
The discriminations that may serve to forbid this process of inspection by
the tribunal are of two sorts : (1) Independent principles, connected with
other subjects, may apply equally to the process of autoptic proference ;
(2) Limitations germane to the process itself may forbid its use. These may
now be considered in order.
2 The question in this case is rather one of discover a ring's erased inscription the iury
a compulsory examination, and is therefore were allowed to examine it throun-h a " maffni-
treated post. §1158 fying ..r jeweller's eye-gla.ss ";" if^the eye-glass
1592, Abbot of Strata Mercella s Case, in question augmented the natural power of the
9 Co. Rep. 31 a ; 1642, Austin ». HUliers, Har- eye to discoTer the inscription, it did that which
dres 408 ; 1768, Blackstone, Commentaries, in tlie light of science it was made for ; and if it
i^l'' .1, ^^. -^ , o ,,= did not," no harm was done); 1898, Morse v.
* See the authorities post, § 1154. Blanchard, 117 IVIich. .37, 75 N. W. 93 (judge or
6 D,' \ \\\t j"''y ™*y examine a writing with microscope to
7 D ' WW-,' '^®'^'=' alteration) ; 1897, People «. Constantino,
8 D ■ f \\V<: '^^^ N- Y- 2*' 4" N. E. 37 (the judge allowed to
9 A. I .in -.,,,=„ illustrate the length of a minute by taking his
10 J^f' ItfA ^Al' § "^^- "^^^"^ *"'' marking the period for the jSry).
," ^'^' SS **°< *51. Compare the cases cited ante, §§ 789, 790.
,1 fo'','i' il"^*' ^1^°' "®^ \'"l''' § **^- " See the preceding instance, and post, § 1160.
" 1878, Short v. State, 63 lud. 376, 380 to " Post, §§1161 1162 . "^" /«*>'. S "»"•
1348
§§ 1150-1168] EXCLUDED FOR lEEELEVANCY. § 1154
2. Independent Principles incidentally affecting Autoptio Preference.
§ 1154. Irrelevant Pacts are not to be proved (Color, Resemblance, Ap-
pearance, etc., to show Race, Paternity, Age, etc. ; Changed Conditions of
Premises, etc.). If, by some principle of relevancy, a fact offered to be shown
by autoptic preference is not admissible, because irrelevant, it cannot be
shown, either in this or in any other way. For example, whether a person's
color is black or white is best ascertained by inspecting the person ; but if
his color when ascertained would be irrelevant for the purpose concerned, an
inspection to learn his color would obviously be unnecessary, and therefore
improper. Thus, his color might be relevant, to show his race-ancestry, but
not to show his state of health; in the former case inspection would be
allowed, in the latter case not, the ruling in each instance depending on the
admissibility of the fact shown by inspection. In a large number of in-
stances this is the real question.
(1) A person's color has always been regarded as some evidence of race-
ancestry;'^ accordingly, the production of a person to ascertain his color as
relevant for this purpose is proper ; ^ so, also, to ascertain his foot-formation
as evidence of race.^
(2) Resemblance of features, as evidence of paternity, in cases of bastardy,
inheritance, or seduction, has been a matter of some controversy ; * but, where
the fact of resemblance has been regarded by the Court as having probative
value, the production of the child for the better apprehension of the resem-
blance has been treated as proper.^
1 Ante, § 167. resemblance) ; 1870, Eeitz v. State, 33 id. 187
2 1835, Gentry u. McGinnis, 3 Dana Ky. 382, (same); 1878, State v. Danforth, 48 la. 43, 47
386 (inspection of an alleged slave to determine (seduction ; exhibition of infant, held improper,
her color) ; 1839, Chancellor v. Milly, 9 id. 24 because of irrelevancy of resemblance) ; 1880,
(same) ; 1876, Garvin v. State, 52 Miss. 207, 209 State «. Smith, 54 id. 104, 6 N. W. 153 (child
(exhibition of a defendant to determine his exhibited, to show resemblance) ; 1900, State v.
color) ; Mo. Rev. St. 1899, § 2174 (the jury may Harvey, 112 id. 416, 84 N. "W. 535 (doubted, on
determine negro-blood from appearance, on an authority of Close v. Samm, cited post, § 1168) ;
issue as to a mixed marriage) ; 1877, Warlick v. 1888, Clark v. Bradstreet, 80 Me. 454, 15 Atl.
White, 76 N. C. 175, 179 (exhibition of a child 56 (held improper for reasons of irrelevancy);
to determine its parentage by its color) ; 1806, 1876, Jones i'. Jones, 45 Md.'144, 151, semble ;
Hudgins v. Wrights, 1 Hen. & M. 134, 141 1867, Finnegan v. Dugan, 14 All. 197; 1869,
(Roane, J. : "In the case of a propositus ol un- Young v. Makepeace, 103 Mass. 50,54; 1891,
mixed blood, I do not see but that the fact may Scott v. Donovan, 153 id. 378, 26 N. E. 871
be as well ascertained by the jury or the judge (bastardy; child allowed to be exhibited, with
upon view as by the testimony of witnesses"; no "distinction according to age"); 1859, Gil-
otherwise, additional evidence may be needed) ; manton v. Ham, 38 N. H. 108, 112 ; 1900, State
1811, Hook V. Pagee, 2 Munf. 379, 384, 386 v. Saidell, 70 id. 174, 46 Atl. 1083 (bastardy,
(inspection of an alleged slave's complexion, defendant being a Jew ; child allowed to be in-
allowed), spected) ; 1888, Gaunt v. State, 50 N. J. L. 490,
3 1861, Daniel v. Guy, 23 Ark. 50, 51 (the 495, 14 Atl. 600; 1872, State v. Woodruff, 67
foot-formation being evidential of race, the N. C. 89, sem6/e; 1892, Crow w. Jordon, 49 Oh.
plaintiff in a suit for freedom was allowed to St. 655, 32 N. E. 750. The consideration of
exhibit her bare feet to the jury). this resemblance was forbidden in Hanawalt
* Ante, § 166. _ v. State, 64 Wis. 84, 24 N. W. 489, on other
° The exhibition was allowed, except as grounds (post, § 1168).
otherwise noted : 1875, Paulk v. State, 52 Ala. Distinguish the following ruling, on the prin-
427, 429 ; 1902, Kelly v. State, 133 id. 195, 32 cipleof § 1158, post; 1903, Hopkins v. Hopkins,
So. 56 (bastardy ; child about a year old, allowed 132 N. C. 25,- 43 S. E. 506 (exhibition of defend-
to be shown) ; 1889, Re Jesaup, 81 Cal.408, 418, ant's chUd, in a divorce case, merely to excite
21 Pac. 976, 22 Pac. 742 ; 1862, Risk v. State, 19 sympathy, held improper).
Ind. 152 (doubted because of the irrelevancy of
1349
§1154
EEAL EVIDENCE.
[Chap. XXXVII
(3) A person's appearance, as evidence of age (for example, of infancy, or
of being under the age of consent to intercourse), is usually regarded as rele-
vant ; ® and, if so, the tribunal may properly observe the person brought
before it.'
(4) A person's appearaTice and behavior is relevant as indicating his in-
toxication,^ or his lunacy,* or even his competency as a workman;^" and
may therefore be learned by the tribunal's direct observation of the person.
(5) Where the identity of one person or thing with another is in issue, the
features as observable by the tribunal are relevant. ^^
(6) The present condition, of an object offered may not be the same as at
the time in issue, nor so nearly the same as to be proper evidence of its
former condition ^^ ; accordingly, autoptic proference is allowable only on the
assumption that the condition is the same or sufficiently similar. ^^
(7) Experiments to show the quality or operation of a substance, a ma-
chine, etc., are often excluded because of the dissimilarity of circumstances
or because of probable confusion of issues ; '* and for this reason the exhibi-
tion of such experiments before the tribunal may of course be forbidden.^*
6 Ante, § 222.
' Eng. : 1558, Langley v. Mark, Gary 53
(person adjudged "by inspectioa not above the
age of 15 years"); 1586, Wood v. Wageman,
Toth. 72 ("view of the body" had by Chan-
cellor, to determine infancy) ; 1592, Abbot of
Strata llercella's Case, 9 Co. Rep. 31a (plea
of non-age ; the writ was a venire facias " nt
per aspectum corporis sui constare poterit pr£e-
fatis jasticiis nostris si preedictns A. sit plensB
astatis"): U. S.: 1899, Jones v. State, 106 Ga.
365, 34 S. E. 174 (rape of girl of 15 years;
the jury allowed, in determining whether she
had capacity to consent, " to take into considera-
tion facts discovered by their own observation
of the girl herself" in court); 1898, Com. v.
HoUis, 170 Mass. 433, 49 N. E. 632 (appearance
of a girl said to be ander 16, allowed) ; 1900,
State V. Thompson, — Mo. — , 55 S. W. 1013;
N. Y. Laws 1882, e. 340 (on a dispute as to a
child's age, the child "may be produced and
e.xhibited") ; Laws 1883, c. 375, § 2 (similar, on
a charge of selling fire-arms to a minor) ; 1851,
State V. Arnold, 13 Ired. 184, 192 (whether a
defendant was under 14; inspection allowed);
1888, Hermann v. State, 73 Wis. 248, 250, 41
N. "W". 171 (whether a girl's appearance was
tinder 21 ; inspection allowed).
In Indiana and Texas the consideration of
appearance as evidence of age has been forbid-
den on the ground of § 1168, post, where the
authorities are collected.
8 1794, Walker's Trial, 23 How. St. Tr. 1154
(Mr. Justice Heath: "He has made himself so
exceedingly drunk, it is impossible to examine
him ") ; and cases cited ante, § 235.
' "The authorities are collected post, § 1160,
where the subject is considered from another
point of view.
i» 1885, Keith v. N. H. & N. Co., 140 Mass.
175, 180, 3 N. E. 28 (appearance of employee on
the stand, allowed to be considered as affecting
his competency for his duties).
1350
" 1669, R. ti. Buckworth, 1 Sid. 377 (perjury
in a cause involving the birth of a posthumous
child, said to have been falsely procured by the
mother from another woman ; the delivery of
the child " was proved by the circumstances
usual in such cases, and also by marks, and the
child being in court was stripped and shown ") ;
1592, Abbot of Strata MerceUa's Case, 9 Co.
Rep. 30 (a person said to be dead) ; 3 Bl. Com.
332; 1743, Annesley v. Anglesea, 17 How. St.
Tr. 1139, 1182; 1873, R. r. Castro (Tichborne
Trial), charge of C. J. Cockburn, passim; La.
C. Pr. 1894, § 139 (Court may order movable
property brought into court to determine its
identity). Compare the principles affecting
Identification, ante, § 413.
For the identity of animals, see injra, this
section, and post, § 1161.
^2 The principles are explained ante, § 437.
" 1892, French v. Wilkinson, 93 Mich. 322,
53 N. W. 530 (limb bitten by dog; exhibition
three years afterwards, forbidden, the sameness
of condition not being shown) ; 1898, State v.
Goddard, 146 Mo. 177, 48 S. W. 82 (door of
room of homicide, not changed in condition,
admitted); 1878, King v. R. Co., 72N. Y. 607
(broken hook with cross-cracks, .<ihown, the iron
being in the same condition) ; 1903, Walker v.
Ontario, — Wis. — , 95 N. W. 1086 (pieces of
a broken bridge, two years after the break,
allowed to he shown, after testimony to the
sameness of condition) ; and cases cited post,
§ 1164 (jury's view). The following ruling is
unsound: 1870, Jacobs v. Da-\ns, 34 Md. 204,
208, 216 (whether rails and shingles had been
injured ; the rails and shingles not allowed to
be shown, because they could not be " received
as testimony to prove or disprove the fact of
injury done to them"; a singular abuse of
language).
» Ante, § 445.
^' See post, § 1160, for an additional reason
for exclusion; aud cases cited post, § 1163.
§§ 1150-1168] EXCLUDED FOE IREELEVANCY. § 1156
The following classical example illustrates the propriety of experimentation
when the fact ascertainable from it is a relevant one :
1800 (?), Lord Eldon, in Twiss' Life, I, 354: "When I was Chief Justice of the Com-
mon Pleas (I did like that court 1) a cause was brought before me for the recovery of a
dog, which the defendant had stolen in that ground [lying in the fields beyond his house]
and detained from the plaintiff its owner. We had a great deal of evidence, and the dog
was brought into court and placed on the table between the judge and witnesses. It was
a very fine dog, very large, and very fierce, so much so that I ordered a muzzle to be put
on it. Well, we could come to no decision ; when a woman, all in rags, came forward and
said, if I would allow her to get into the witness-box, she thought she could say some-
thing that would decide the cause. Well, she was sworn just as she was, all in rags, and
leant forward towards the animal, and said, ' Come, Billy, come and kiss me 1 ' The
savage-looking dog instantly raised itself on its hind legs, put its immense paws around
her neck, and saluted her. She had brought it up from a puppy. Those words, ' Come,
Billy, come and kiss me,' decided the cause." ^^
§ 1155. Privilege, as a ground for Prohibition (Self-Crimination, Plaintiff
suing for Corporal Injury). Another independent principle that may pro-
hibit autoptic proference is the principle of privilege, protecting one who is
unwilling to furnish evidence. Whether the privilege of an accused person
not to criminate himself is violated by compelling the exhibition of his body
or its members in court depends wholly on the theory of this privilege.^ So
also the question whether a plaintiff suing for corporal injury may be com-
pelled to exhibit it to the jury or to medical witnesses is peculiarly one of
privilege ; ^ as also the propriety of granting a writ de ventre inspiciendo ^ or
of ordering an inspection in a suit for divorce on the ground of impotency.^
§ 1156. Sundry Independent Principles sometimes involved (Handiivriting,
Hearsay, Photographs, etc.). Certain other independent principles sometimes
resulting in the prohibition of autoptic proference, or prescribing conditions
for its use, need to be discriminated. (1) Specimens of handwriting, as evi-
dence of a person's style of writing, are in some jurisdictions not to be sub-
mitted to the jury.^ (2) Where an object has been obtained by illegal means,
it has sometimes been made a question whether it should be allowed to be
used in evidence.^ (3) The ff ear say rule forbids a jury at a view to hear
testimony ; ^ moreover, some things said or done in court by way of test or
experiment may virtually involve a breach of this rule by calling for unsworn
testimony.* Whether the accused in a criminal case must be present at a
view involves also the scope of the Hearsay rule.^ (4) The use of photo-
graphs, models, maps, and the like, by a witness, is merely one way of giving
testimony, and does not concern the present principle.^ (5) Whether the Court
may decide by inspection, instead of the jury, is a question of the respective
" For the relevancy of animal conduct of this 234 (cross-examination of one identifying de-
kind, see ante, § 177. • fendant by his voice ; Court's refusal to allow
^ Post, § 2265. defendant to speak to test the witness, held
Po^> § 2220. proper, the defendant not being on oath ; post,
; -Post, § 2001. § 1824) ; 1886, Osborne v. Detroit, 36 Ped. 36
2 Posi, §2183. [post, % 1158).
I Post, § 1802. 5 Post, § 1803.
* 1877, Com. u. Scott, 123 Mass. 222, 224, ^ ^„je, § 790.
1351
§ 1156 REAL EVIDElsrCE. [Chap. XXXVII
functions of judge and jury.' (6) The rule of Primariness, i. e., that the
original of a writing must be presented autoptically to the tribunal, unless it
is not available for production, involves a different question ; ^ for there the
question is whether the original writing must be presented, while here the
only question is whether it ma]/ be, and the answer to the latter question has
never been doubted.^
3. Limitations germane to the Process itself of Autoptio Proference.
§ 1157. Unfair Prejudice to an Accused Person (Exhibition of Weapons,
Clothes, Wounda, etc.). The autoptic proference to the jury of the weapons
or tools of a crime, or of the clothing or the mutilated members of the victim
of the crime, has often been objected to on grounds of Undue Prejudice {post,
§ 1863). The nature of this supposed prejudice is illustrated in the follow-
ing passages:
1806, Picton's Trial, 80 How. St. Tr. 457, 480 ; the defendant was charged with inflicting
torture, as governor of Trinidad, upon Luisa Calderon, by first tying the left foot and right
hand together behind, and then suspending the body from the ceiling by a pulley-rope
tied to the left wrist, so that the weight of the body rested, through the right foot, on a
sharp wooden spike in the floor ; JVir. Garrow (to the witness Luisa) : " Is that a faithful
description of it?" [showing the witness a coloured drawing]. Ans. " Yes, very good
indeed" ; L. C. J. Ellenhorough : " I do not approve of exhibiting drawings of this nature
before a jury ; and I shall not permit it till the counsel for the defendant has seen it. 1
have no objection to your showing a description to the jury, but the colouring may produce
an improper effect. [The opposing counsel consented to its use.] The jury will consider
it merely as a description of the situation in which she was placed ; whether she was jus-
tifiably so placed is the question between you." Mr. Garrow: "I have one to which
there can be no objection ; it is a mere pen-and-ink sketch. " L. C. J. Ellenhorough : " Gen-
tlemen, you will consider that as a description of the position, which we can easily under-
stand from the words of the witness. Nobody wishes that any improper impression should
be made by that drawing ; it is only to show the nature of the process." When the coun-
sel for the defence afterwards complained of the prejudice thus created. Lord Ellenhorough
said : " That you must attribute to me, or perhaps to yourself ; for I distinctly asked you
whether you would consent to their exhibition, and on your concurring, I cautioned the
jury not to suffer their minds to be inflamed, but simply to look at the representation of
the position of the prosecutrix in order to understand the testimony of the witness."
1820, Ings' Trial, 33 How. St. Tr. 1051, 1088 ; the " Cato^treet conspiracy '.' ; high
treason ; the defendant claimed that he was ignorantly drawn into the movement and
did not know of the specific murderous designs of the leaders. A constable produced the
conspirators' weapons. " Are there now placed upon the table the things which were
taken in Cato-street ? " " Yes." — " You gave us an enumeration yesterday of thirty-eight
ball-cartridges, firelock and bayonet, one powder-flask, three pistols, and one sword, with
six bayonet spikes, and cloth belt, one blunderbuss, pistol, fourteen bayonet spikes, and
three pointed files, one bayonet, one bayonet spike, and one sword scabbard, one carbine
and bayonet, two swords, one bullet, ten hand-grenades; [two fire-balls, nine hundred
and sixty-five ball cartridges, eleven bags of gunpowder of a pound each ;] I do not see
them?" "Here they are," producing a bag. — "We must have them on the table."
They were emptied out, and the jury inspected the various articles, the hand-grenades
being broken open, and other weapons displayed. No objection was made to this pro-
ceeding, which was taken as a matter of course ; but the counsel for the defence, Mr.
' Post, § 2550. ' Except for the considerations referred to
* Post, § 1179. in notes 1 and 2, supra.
1352
§§ 1150-1168] PKEJUDICE IN CEIMINAL CASES. § 1157
Adolphus, thus referred to it in his address: " You have had that which produces always
a sort of mechanical effect. I do not mean to pay an ill compliment to your understand-
ings ; but you have had a display of visible objects, pikes and swords, guns and blunder-
busses, have been put before you, to the end that this feeling may be excited in every
man's mind, ' How should I like to have this sort of thing put to my breast ! How
should I feel if this were applied to my chimney! and that to my stair-easel ', and so on ;
that is, that the individual feeling of each man may make ' him separate himself from
society, — may make him, through the medium of his own personal hatred of violence or
apprehension of danger, think that this contemptible exhibition of imperfect armoury
could operate on a town filled by a million of loyal inhabitants or could give the means
of overwhelming the empire. When touched by reason, they shrink to nothing, and will
never produce a verdict contrary to the evidence of facts. It is like displaying the bloody
robe of a man who has been stabbed or murdered ; it is like the trick practised at every
sessions, where we see a witness pull out some cloak or handkerchief dipped in blood of
the person, to produce conviction through the medium of commiseration. They do not
trust to description, but rely upon display. That is the effect of the production of
these arms."
1856, Mr. David Paul Brown, in " The Forum," II, 448 (this famous Philadelphia ad-
vocate is recounting the story of a cause celebre of 1834, the homicide, by a disappointed
lover, of the woman he loved) ; " During the course of the trial there was an occurrence
which is entitled to notice. When I first called upon the prisoner, after he had furnished
me with some of the prominent details, I asked him how the deceased was dressed at the
time of the blow. He said, ' in black.' I observed, ' that was better than if the dress had
been white.' Upon which the prisoner turned hastily round, and asked what difference
that could make. The reply was, ' No difference in regard to your offence, but a con-
siderable difference in respect to the effect produced upon the jury by the exhibition of
the garments, which, no doubt, will be resorted to.' And so upon the trial it turned out.
The black dress was presented to the jury, — • the eleven punctures through the bosom
pointed out; but no stain was observable, no excitement was produced. At last, however,
they went further, and produced some of the white undergarments — corsets, etc., all be-
smeared with human blood. Upon this exhibition there was not a dry eye in the court-
house. And the current of opinion continued to run against the defendant from that
moment until the close of the case, and finally bore him into eternity."
1882, Andrews, C. J., in Walsh v. People, 88 N. Y. 467 : « The exhibition of the photo,
graph of a young girl alleged to have been cruelly murdered was, as is claimed, calculated
to excite the pity of the jurors for the unfortunate victim of the homicide, and correspond-
ingly to excite their prejudice, against the accused. . . . [After conceding that the con-
dition of the corpse was irrelevant to the disputes of fact in the case,] The extent to
which counsel may go, in opening a case to a jury, cannot in the nature of things be
regulated by precise rule. The Court may doubtless interfere in the interest of justice to
restrain undue license on the part of counsel in addressing the jury. . . . But if the
prosecuting ofiioer, instead of exhibiting the picture, had described the deceased in terms
calculated to excite the sympathy or pity of the jury, it would scarcely be claimed that an
exception would lie to a refusal of the Court to interfere. It is neither a logical nor a rea-
sonable inference that a jury dealing with the grave issue of life or death, in a case where
the sole controverted question is as to the insanity of the prisoner when he committed the
act, would be influenced by a description in words or by a representation in a picture of
the personal appearance of the person alleged to have been murdered."
1878, Mr. Pitt Taylor, Evidence, 7th ed., I, § 557: "Though evidence addressed to the
senses, if judiciously employed, is obviously entitled to the greatest weight, care must be
taken not to push it beyond its legitimate extent. The minds of jurymen, especially in
the remote provinces, are grievously open to prejudices, and the production of a bloody
knife, a bludgeon, or a burnt piece of rag, may sometimes, by exciting the passions or en-
listing the sympathies of the jury, lead them to overlook the necessity of proving in what
1353
§ 1157 EEAL EVIDENCE. [Chap. XXXVII
manner these articles are connected ■with the criminal or the crime; and they conse-
quently run no slight risk of arriving at conclusions which, for want of some link in the
evidence, are by no means warranted by the facts proved. The abuse of this kind of evi-
dence has been a fruitful theme for the satirists, and many amusing illustrations of its
effect might be cited from our best authors. Shakspeare makes Jack Cade's nobility rest
on this foundation ; for Jack Cade having asserted that the eldest son of Edmund Mor-
timer, Earl of March, ' was by a beggar woman stolen away,' ' became a bricklayer when he
came to age,' and was his father, one of the rioters confirms the story by saying, ' Sir, he
made a chimney in my father's house, and the bricks are alive to this day to testify to it ;
therefore deny it not.' Archbishop Whately — who makes use of the above anecdote in
his ' Historic Doubts relative to Napoleon Buonaparte,' — adds, ' Truly, this evidence is
such as country people give one for a story of apparitions; if you discover any signs of
incredulity, they triumphantly show the very house which the ghost haunted, the identical
dark corner where it used to vanish, and perhaps even the tombstone of the person whose
death it foretold.'"
1877, SdntillcE Juris, 58: " What is called ' real evidence ' — mostly bullets, bad florins,
and old boots — is of much value for securing attention. This is true even when these
exhibits prove nothing, — as is generally the case. They look so solid and important
that they give stability to the rest of the story. The mind in doubt ever turns to tangible
objects. They who first carved for themselves a Jupiter from a log of wood knew very
well that the idol could do nothing for them ; but it enabled them easily to realize a power
who could. A rusty knife is now to an English juryman just what a scardbceus was to an
Egyptian of old. I have seen a crooked nail and a broken charity-box treated with all
the reverence due to relics of the holiest martyrs."^
The objection thus indicated seems to be. twofold. First, there is a natural
tendency to infer from the mere production of any material object, and with-
out further evidence, the truth of all that is predicated of it. Secondly, the
sight of deadly weapons or of cruel injuries tends to overwhelm reason and
to associate the accused with the atrocity without sufficient evidence. The
objection in its first phase may be at least partly overcome by requiring the
object to be properly authenticated, before or after production ; and this re-
quirement is constantly enforced by the Courts.^ The objection in its second
phase cannot be entirely overcome, even by express instructions from the
Court ; but it is to be doubted whether the necessity of thus demonstrating
the method and results of the crime should give way to this possibility of
undue prejudice. No doubt such an effect may occasionally and in an extreme
case be produced ; and no doubt the trial Court has a discretion to prevent
the abuse of the process. But, in the vast majority of instances where such
objection is made, it is frivolous, and there is no ground for apprehension.
Accordingly, such objections have almost invariably been repudiated by the
Courts.*
>■ The great dramatist's example will occur suffice : 1898, Parrott v. Com., — Ky 47
to every one: " See, what a rent the envious S. W. 452 (clnb used in killing, required to be
Casca made! . . . Here is himself, marred, as authenticated); 1852, People w. Lamed 7 N Y
you see, with traitors." For the extent to 445, 451, 452 (tools, ofEered with connecting
which the Koman advocates developed this evidence).
method of tempting emotion to overwhelm ' To the cases foUowing, add those quoted
reason, see Forsyth's Hortensius the Advocate, above, and also certain of the photograph cases
3d ed., 92, 96. cited ante, § 792 : Eng. : 1722, R. y. Reason, 16
" This necessity is further discussed in con- How. St. Tr. 42 (murder by shooting : " the
nection with the rules for Authentication (post, clothes [of the deceased] were produced and
§ 2130). The foUowing examples will here by the hole in the waistcoat it appeared' that
1354
§§ 1150-1168] PREJUDICE IN CRIMmAL CASES.
§ 1158
§ 1158. Unfair Prejudice to a Civil Defendant in Personal Injury Cases.
In civil actions, an objection has often been made, on analogous grounds, to
the wound given by the pistol under the right
pap could no way happen by any position of the
pistols in the bosom of the deceased, by the
pistol going off of itself ") ; Ala. : 1860, Mose i'.
State, 36 Ala. 2U, 219, 229 (a chip from a tree
containing a buckshot said to hare been fired,
shown); 1895, Dorsey v. State, 107 id. 157, 18
So. 199 (murder; coat witli shot-hole, worn by
deceased); Burton v. State, ib. 108, 18 So. 285
{hat of the deceased) ; 1896, Crawford v. State,
112 id. 1, 21 So. 214 (pistol-balls taken from the
body of the deceased, admitted) ; 1897, Mitchell
V. State, 114 id. 1, 22 So. 71 (showing a purse
said to have contained the stolen money) ; Ark. :
1896, Starchman v. State, 62 Ark. 538, 540,36
S. W. 940 (burglar's tools exhibited) ; Cal. :
1882, People u. Hope, 62 Cal. 291, 295 (burglar's
tools exhibited) ; 1886, People v. McCurdy, 68
id. 576, 5>0, 10 Pac 207 (hats of the deceased,
the defendant, and F. D., shown to the jury at
their request) ; 1893, People v. Hawes, 98 id.
648, 652, 33 Pac. 791 (murder; vest worn by
deceased, exhibited) ; 1897, People v. Winthrop,
118 id. 85, 50 Pac. 390 (articles taken in a
robbery, admitted) ; 1900, People v Sullivan,
129 id." 557, 62 Pac. 101 (gun used in a murder,
admitted); 1901, People v. Westlake, 134 id.
505, 66 Pac. 731 (clothing of the deceased,
admitted); Ga.: 1876. Wynne v. State, 56 Ga.
113, 118 (murder; the pistol and cartridges
allowed to be placed before the jury for their
inspection, with explaining testimony) ; 1893,
Adams v. State, 93 id. 166, 18 S. E. 553 (perjury
as to pantaloons; the pantaloons exhibited);
1899, Uill V. State, 106 id. 683, 32 S. E. 660
(rock used in an assault, admitted); 1903,
Patton V. State, 117 id. 230, 43 S. E. 533 (caus-
ing the weeping mother of the murdered boy to
show to the jury his bloody shirt and point out
the bullet-boles, held improper) ; ///. ; 1887,
Spies i: People, 122 111. 236, 12 N. E. 856, 17
N. E. 898 (Anarchist murders at Haymarket
Square; bombs and cans of dynamite, etc.,
exhibited) ; 1893, Painter v. People, 147 id. 444,
466, 35 N. E. 64 (bed-clothing of the murdered
man, etc., allowed to be displayed ; ■" the time
and manner in which objects of this character
shall be displayed in the presence of the jury is
a matter wholly within the sound discretion of
the Court"); 1896, Keating v. People, 160 id.
480, 43 N. E. 724 (a wad of paper substituted
for stolen bills, exhibited) ; 1902, Henry v. Peo-
ple, 198 id. 162, 65 N. E. 120 (buggy and
deceased's clothes, exhibited) ; 1903, Cleveland
C. C. & St. Louis R. Co. a. Patton, 203 id. 376,
67 N. E. 804 (injured person's clothing, ex-
hiiiited); Tnd.: 1883, McDonel v. State, 90 Ind.
320, 327 (hatchet inspected by the jury) ; 1884,
Story V. State, 99 id. 413, 416 (inspection of
deceased's pantaloons allowed) ; 1893, Davidson
V. State, 135 id. 254, 258, 34 N. E. 972 (murder ;
clothing worn by the deceased, exhibited) ; 1897,
Anderson v. State, 147 id. 445, 46 N. E. 901
(revolver used in resisting arrest; exhibited) ;
1899, Thrawley v. State, 153 id. 375, 55 N. E.
95 (murder ; skull of deceasejl exhibited) ; la. ;
VOL. n.— 23
1868, State v. Vincent, 24 la. 570, 576 (the
severed head of the deceased, preserved in
alcohol and exhibited to the Court and jury at
the trial, then identified by witnesses) ; 1885,
Barker v. Perry, 67 id. 146, 147, 25 N. W. 100
(cited post, § 1158) ; 1893, State v. Jones, 89 id.
182, 188, 56 N. W". 427 (murder; razor u.sed,
exhibited ; defendant's admission of the fact of
killing, immaterial); 1900, State v. Petersen,
110 id. 647, 82 N. W. 329 (rape; underclothing
exhibited) ; Mass. : 1866, Com. u. Burke, 12
All. 182 (inspection of a stolen wallet, etc.,
to find whether "they were of some value,"
allowed); Minn.: 1894, State v. Smith, 56
Minn. 78, 84, 57 N. "W. 325 (shooting a tres-
pa.sser ; signs on premises, warning trespassers,
admitted); 1900, State v. Minot, 79 id. 118,
81 N. W. 753 (burglars' tools and arms, ex-
hibited) ; Miss. : 1883, Powell v. State, 61 Miss.
319 (portion of stolen hog, shown for identifica-
tion) ; Mo.: 1897, State i-. Wievers, 66 Mo. 13,
29 (murder; deceased's bones exhibited; "a
party cannot, npon the ground that it may
harrow up feelings of indignation against him
in the breasts of the jurv, have competent evi-
dence excluded"); 1885,' State v. Stair, 87 id,
268, 272 (blood-stained clotliing of the deceased
shown ; "it was as competent for the jurors to
get this information by their own sight as it was
to get- it through the medium of witnesses");
1890, State v. Moxley, 102 id. 387, 14 S. W. 969,
15 S. W. 556 (spinal vertebrae of the deceased,
allowed to be exhibited, if identified); 1893,
State V. Murphy, 118 id. 7, 14, 25 S. W. 95
(rape; bloody underclothing exhibited); 1894,
State V. Duffy, 124 id. 1, 10, 27 S. W. 358 (rape ;
defendant's clothing exhibited); Nebr.: 1901,
Savary v. State, 62 Nebr. 166, 87 N. W. 34
(skull of deceased exhibited) ; A^. J. : 1897,
Johnson ;.. State, 59 N. J. L. 535, 37 Atl. 949
(exhibition of defendant's boots and the tracks
madeby them, allowed) ; N. Y.: 1866, Gardiner
V. People, 6 Park. Cr. C. 155, 201 (murder;
weapons used, and the deceased's clothing, ex-
hibited) ; 1852, People v. Earned, 7 N. Y. 445,
452 (burglary ; tools exhibited) ; 1866, People
V. Gonzalez, 35 id. 49, 64 (murder; deceased's
clothing exhibited) ; 1875, Foster v. People, 63
id. 619 (burglar's tools shown); N. C: 1873,
State V. Mordecai, 68 N. C. 207, 210 (burglary;
accomplice's stick, exhibited); S. C. : 1893,
State r. Symmes, 40 S. C. 383, 387, 19 S. E. 16
(clothes exhibited, to show lack of powder-
burns) ; S. D.: 1900, State v. Shields, 13 S. D.
464, 83 N. W. 559 (watch and chain of assaulted
person, exhibited) ; Tenn. : 1890, Turnerw. State,
89 Tenn. 547, 564, 15 S. W. 838 (murder;
deceased's ribs and vertebra, exhibited) ; Tex. :
1882, King v. State, 13 Tex. App. 277, 280
(clothes of deceased, exhibited) ; 1883, Hart v.
State, 15 id. 202, 228 (same; admissible, "no
matter how the jury might be affected by
them ") ; 1899, Roberson v. State, — Tex. Cr.
— , 49 S. W. 398 (rape ; complaining witness
brought in to testify, in such a bruised and
emaciated condition that she could testify only
1355
§ 1158
EEAL EVIDENCE.
[Chap. XXXVII
the exhibition of his corporal injuries by one suing for compensation.^ This
objection, like the preceding one, assumes that there is a double risk ; the
jury may heedlessly conclude, it is thought, first, that because the injury is
perfectly patent therefore the defendant is to blame for it, and, secondly, that
since the plaintiff is truly in a pitiable plight, some one at least should be found
to compensate him, and the defendant rather than any one else ; both of these
risks being particularly great in actions against a corporation or a moneyed
individual. No doubt there is in such cases a constant tendency to render
verdicts against defendants regardless of proved culpability; no doubt the
danger is of greater frequency here than in the preceding class of cases ; and
no doubt the trial Court has a discretion, which it should firmly exercise, to
prevent the abuse of such a mode of proof. But it seems too rigorous to for-
bid a party to prove his case by the clearest evidence ; and a jury which
through violent prejudice would not be restrained by the Court's instructions
would probably give way to its prejudice even without this evidence. The
Courts impose no prohibition, except so far as the discretion of the trial
Court may prevent abuses.^
tiff's injured limbs exhibited); 1893, Citizens'
S. R. Co. V. Willoeby, 134 id. 563, 570. 33 N. E.
627 (physician allowed to exhibit the plaintiff's
hip-joint injury and illustrate it by placing him
in various poses); la.: 1885, Barker v. Perry,
67 la. 146, 147, 25 N. W. 100 ("In all actions
for injuries to the person," and " in the trial of
criminal assaults," the injury may be exhibited
to the jury) ; 1902, Faivre v. Manderscheid, 117
id. 724, 90 N. W. 76 (plaintiff's husband's crip-
pled limbs, allowed to be exhibited) ; Ky. : 189.%
Newport News & M. V. R. Co. v. Carroll, —
Ky. — ,31 S. W. 132 (bones of injured arm,
exhibited) ; 1898, Williams v. Nally, — id. — ,
45 S. W. 874 (bones of fractured leg, shown to
expert witnesses) ; Me. : 1899, Jameson v. Weld,
93 Me. 345, 45 Atl. 299 (injured arm, allowed
in discretion to be shown); Mich.: 1886, Car-
atens v. Hauselman, 61 Mich. 426, 430, 28 N. W.
158 (medical assistance to the defendant, a
woman; trial Court's refusal to allow her to
exhibit her injured limb to the jury, approved,
the appearance not being a satisfactory source
of inference) ; 1893, Langworthy v. Green, 95
id. 93, 96, 54 N. W. 697 (plaintiff's shrivelled
limb allowed to be exhiljited ; argument of
undue prejudice apparently repudiated) ; 1893,
Graves v. Battle Creek, ib 266, 268, 54 N. W.
757, (" the injured party may exhibit his wounds
to the jury") ; 1893, Edwards v. Three Rivers,
96 id. 625, 628, 55 N. W. 1033 (injured limb,
exhibition allowed) ; 1895, People v. Sutherland,
104 id. 468, 62 N. W. 566 (wounds exhibited);
Minn.: 1885, Hatfield v. R. Co., 33 Minn. 130,
22 N. W. 176 (principle approved) ; 1901, Adams
i:. Thief River Falls, 84 id. 30, 86 N. W. 767
(plaintiff allowed in trial Court's discretion to
make arm movements to illustrate her injury);
Nebr.: 1898, Omaha S. R. Co. v. Emminger, 57
Nebr. 240, 77 N. W. 675 (injured woman's limb,
exhibited) ; 1902, Crete v. Hendricks, — Nebr.
— , 90 N. W. 215 (injured foot, exhibited) ;
N. H. : 1895, Nebonne v. R. Co., 68 N. H. 296,
by moving the head or by writing ; held allow-
able) ; 1899, Barkman v. State, 41 id. 105, 52
S. W. 73 (clothing of deceased, exhibited) ; Vt. :
1884, State v. Bnrnham, 56 Vt. 445 (breach of
the peace by boxing-match ; inspection of the
gloves by the jury, apparently left to trial
Court's discretion) ; Wash. : 1896, State v. Gush-
ing, 14 Wash. 527, 45 Pac. 145, 17 Wash. 544,
50 id. 512 (clothing of the deceased and gun
witli which he was shot, exhibited).
1 1892, Coleman, J., in Louisville & N. R.
Co. V. Pearson, 97 Ala. 211, 219, 12 So. 176
(" Human feelings are easily excited by the
description of great bodily injuries or ghastly
wounds or the exhibition of objects which
appeal to the senses. Sympathy or indigna-
tion, once aroused in the average juror, readily
become enlisted, to the prejudice of the person
accused as the author of the injury ").
2 Can.: 1897, Sornberger v. R. Co., 24 Ont.
App. 263 (railroad injury; plaintiff allowed to
exhibit her injured limb, for the purpose of
having a medical witness explain the injury) ;
1897, Laughlin v. Harvey, ib. 438 (mal])ractice ;
plaintiff not allowed to exhibit his injured part
to the jury, where no explanation by medical
testimony was purposed ; precediug case dis-
tinguished) ; Ala: 1892, Louisville & N. R. Co.
V. Pearson, 97 Ala. 211, 219, 12 So. 17B (shoe of
brakeraan killed on train, excluded on this
ground); III.: 1889, Tudor Iron Works ;;.
Weber, 129 111. 535, 539, 21 N. E. 1078 (plain-
tiff's torn clothing exhibited) ; 1891, Springer
V. Chicago, 135 id. 552, 561, 26 N. E. 514 (general
principle approved) ; 1894, Lanark o. Dougherty,
153 id. 163, 165, 38 N. E. 892 (injured limb ex-
amined by physician in jury's presence) ; 1899,
Swift V. Rntkowski, 182 id, 18, 54 N. E. 1038
(injured limb may be exhibited, in trial Court's
discretion) ; Ind, : 1884, Indiana C. Co. v. Parker,
100 Ind. 181, 199 (injured hand exhibited);
1887, Louisiville N. A. & C. R. Co. v. Wood, 113
id. 544, 548, 14 N. E. 572, 16 N. E. 197 (plain-
1356
§§ 1150-1168] INDECENCIES. § 1159
§ 1159. Indecency, or other Impropriety ; Liquor Sampled by Jurors.
When justice and the discovery of truth are at stake, the ordinary canons of
modesty and delicacy of feeling cannot be allowed to impose a prohibition
upon necessary measures. If such matters were not unshrinkingly discussed
and probed, many kinds of crime would remain unpunished. Nevertheless,
needless offence to feelings of delicacy, especially by public exhibitions before
idle spectators having no responsibility for the course of justice, may well be
avoided. The limitations that may be applied are suggested in a passage
from Chief Baron Hale :
Ante 1680, Sir Matthm Hale, Pleas of the Crown, I, 635: "I shall never forget a trial
before myself of a rape in the county of Sussex. . . . There was an antient wealthy man
of about sixty-three years old indicted for rape, which was fully sworn against him by a
young girl of fourteen years old. . . . [The antient man alledged that he neither was nor
could be guilty, since] he had for above seven years last past been afflicted with a rupture
so hideous and great that it was impossible he could carnally know any woman, . . . and
offered to show the same openly in court ; which for the indecency of it I declined, but
appointed the jury to withdraw into some room to inspect this unusual evidence; and
they accordingly did so, and came back and gave an account of it to the Court, that it
was impossible he should have to do with any woman in that kind ; . . . whereupon he
was acquitted."
Where it is a question of what would otherwise be an indecency, two limita-
tions seem appropriate ; ^ (a) there should be a fair necessity for the jury's
inspection, the trial Court to determine ; (S) the inspection should take place
apart from the public court-room, in the sole presence of the tribunal and the
parties. Such seems to be the tendency of the Courts.^
There may also be an unnecessary impropriety in other ways. The exhi-
bition of repulsive objects should not be allowed unless it is fairly necessary.^
44 Atl. 521 (exhibition of amputated toes, in a manner calculated to prejudice the defend-
allowed) ; N. Y.: 1864, Mulhado v. R. Co., 30 ant (ante, §'789). Whether the plaintiff in such
N. Y. 370 (plaintiff's injured arm, exhibited) ; suits is compellable to exhibit his injuries, for
S. D.: 1898, Sherwood v. Sioux Falls, 10 S. D. inspection by the jury and the defendant's \yit-
405, 73 N. W. 913 (bringing the plaintiff into nesses, is a question of privilege, elsewhere con-
Court on a cot, in action for personal injury; sidered [post, § 2220).
not improper, where n6t shown unnecessary) ; ^ Compare also the general principle as to
Tenn.: 1900, Arkansas Eiver P. Co. v. Hobba, Indecent Evidence (post, § 2180).
lOSTenn. 29,58 S.W. 278 (injured limb, allowed ' 1889, McGuff v. State, 88 Ala. 147, 7 So.
to be exhibited and moved); C/^ iS.; 1886, Osborne 35 (rape; inspection of complaining witness
V. Detroit, 36 Fed. 36, 38 (allowing the plaintiff allowed) ; 1898, Chicago & A. R. Co. v. Clausen,
to indicate to the jury the extent of a paralysis 173 111. 100, 50 N. E. 680 (rupture shown by
by submitting to the insertion of a pin into her injured person ; allowable in discretion) ; 1891,
body ; " she was at liberty to exhibit her wounds Union P. R. Co. ?'. Botsford, 141 U. S. 250, 255,
if she chose to do so, as is frequently the case 11 Sup. 1000 (exposure of person allowable,
where an ankle has been sprained or broken, a " with a due regard to decency, and with the
wrist fractured, or any maiming has occurred ") ; permission of the Court"); 1878, Brown v.
1901, Baggs V. Martin, 47 C. C. A. 175, 108 Fed. Swineford, 44 Wis. 282, 284 (assault and bat-
33 (clothing of deceased, exhibited); W. Va.: tery; defendant's exhibition of his organs of
189-t, Carrico v. R. Co., 39 W. Va. 86, 89, 19 generation to the jury, held improper; if mate-
S. E, 571 (stump of amputated arm'; exhibition rial, a private examination by experts out of
allowed; " danger of inspiring sympathy " not court should be made); 1901, Guhl v. Whit-
to exclude); Wis.: 1901, Viellesse v. Green comb, 109 Wis. 69, 85 N. W. 142 (personal
Bay, 110 Wis. 160, 85 N. W. 665 (injury at a injury; photograph of plaintiff's nude body,
defective sidewalk ; pieces of rotten plank held improperly received).
allowed to be exhibited). 3 iggg, R. v. Palmer, Annual Register, 1856,
On the same principle, objection has been pp. 422, 473, 475 (while allowing experiments
made to the plaintiffs testifying, as a witness, as to the effect of strychnia upon dogs and
1357
§ 1159
REAL EVIDENCE.
[Chap. XXXVJI
The consumption by the jury of samples of liquor, for the purpose of deter-
mining its intoxicating qualities, will also ordinarily be prohibited.*
§ 1160. Incapacity of the Jury to Appreciate by Observation (Experi-
ments in Court; Insane Person's Conduct. The significance of the pro-
duction of a thing or a person or the performance of an experiment before
the jury may sometimes not be properly apprehensible by unskilled laymen
through mere observation. Nevertheless, an accompanying explanation ,by
an expert will generally obviate any danger that the jury may be misled ;
and Courts have rarely recognized any force in this objection. Experiments
and samples have frequently been shown for the personal observation of the
jury.i
On an issue of idiocy or insanity, it was from an early period regarded
proper that the person should appear before the Chancellor for inspection.^
Since the Chancellor is upon the subject of insanity no less a layman than is
a juryman, it seems equally proper, and has beeu perhaps equally long estab-
lished,^ that inspection by the jury should be an allowable mode of acquiring
knowledge on an issue of insanity. It is almost universally agreed that a
lay-witness is qualified to testify to insanity ; * and it seems to be universally
accepted that, in whatever form the issue of insanity may be presented, the
rabbits to be described, the Court refused to
allow dogs to be brought into the court-yard
and killed by strychnia before the jury) ; 1837,
Kiiowles V. Crarapton, 55 Conn. 336, 341, 11
Atl. 593 (section of a human body, cut from a
woman about the plaintiff's size and age, offered
to show the character of rib and breast-bone
formation, excluded, " the exhibit being of
doubtful utility and offensive in its nature";
the trial Court's discretion to control).
* 189S, Wadsworth v. Dunnam, 117 Ala. 661,
23 So. 699 (that jurors should test the intoxi-
cating qualities of a liqnor by taking bottl.'S to
their room, not allowed, because evidence must
be publicly presented in Court) ; 1900. State v.
Coggins. 10 Kan. App. 455, 62 Pac. 247 (liquor
offence ; held improper to allow the jury to
examine and smell bottles of wliiskev) ; 1894,
Com. V. Brelsford, 161 IWass. 61, 63, 36 N. E.
677 (offer to have jurors taste liquor, excluded) ;
1900, People v. Kinney, 124 Mich. 486, 83 N. W.
147 (whether a liquor was hard or sweet cider;
jurors allowed to taste it).
^ Besides the following, compare the cases
cited ante, §§ 445, 451 457," 460, and 1154 : 1882,
People V. Hope, 62 Cal. 291, 295 (experiments
before the jury with burglar's tools to show
their working, allowed) ; 1895, Thomas Fruit
Co. 1-. Start, 107 id. 206, 40 Pac. 336 (a sample
of prunes whose quality was in issue) ; 1859,
Jumpertz v. People, 21 lU. 375,396,408 (experi-
ments with door-hooks, etc., to show the impos-
sibility of tlie deceased's suicide as alleged ; such
an experiment before the jury, " to say the least,
is very uncommon, and should be permitted by
the Court with great caution"); 1876, Stock-
well V. R. Co., 43 la. 470, 473 (fire attributed to
a locomotive; whether the engineer had not
shut off the steam in running over a certain
stretch was in issue, the practicability of doing
so being denied ; to show the practicability, a
view having been ordered, a train was run over
the stretch in question without steam ; held
proper); 1873, Brown v. Foster, 113 Mass. 136
(contract to make a suit of clothes; to show
that they did fit the defendant, the plaintiff was
allowed to produce them and with the defend-
ant's assent to try them on him) ; 1879, Eidt v.
Cutter, 127 id. 522 (whether the gases from the
defendant's copperas works had discolored tlie
paint on the plaintiff's house ; boards, etc., used
in experiments made out of Court, were shown to
the jury) ; 1880, Dillard v. State, 58 Miss. 368,
386 (horse ridden by deceased, produced, and
experiments by the "jury as to the height of a
rider, allowed) ; 1893, T:ivlor v. Com., 90 Va.
109, 117, 17 S. E. 812 (jury allowed to examine
rifle and cartridge to determine manner of ex-
plosion) ; 1886, Osborne v. Detroit. 36 Fed. 36,
38 (allowing the plaintiff to test the extent of
her paralysis by submitting to the insertion of a
pin into her body in the jury's presence during
the trial) ; 1898," Taylor v. U. S., 32 C. C. A. 449,
89 Fed. 954 (counterfeiting; plating-machine
allowed to be operated before the jury).
2 1592, Abbot of Strata Mercella's Case, 9
Co. Rep. 31a; 1768, Blackstone, Commentaries,
III. 332.
3 Ante 1680, Hale, Pleas of the Crown, I, 29.
33 (" ' Idiocy or not ' is a question of fact triable
^y jury. a"d sometimes by inspection. .
Touching the trial of this incapacity [of demen-
tia], . . . the law of England hath afforded the
best method of trial that is possible of this and
all other matters of fact, namely, by a jury of
twelve men all concurring in the same judgment,
by the testimony of witnesses viva voce m the
presence of the judge and jnrv, and by the in-
spection and direction of the judge").
* Ante S .IRS nnc/ S 1 Qia
1358
Ante, § 568, post, § 1938.
§§1150-1168] LUNATICS; EXPERIMENTS; PATENTS. §1162
jury may take into consideration the behavior of the person as observed by
theni.^
§ 1161. Physical or Mechanical Inconvenience of Production ; Patent In-
fringements. It may cause inconvenience, by obstruction of the court-room
or by too great expense of time, to bring the desired object before the tri-
bunal; and on this ground its production may be forbidden in the trial
Court's discretion ; though such a course has rarely been taken.^ In Chan-
cery, a Magter may be ordered to examine and report.^ In suits for in-
fringement of patents of invention, the judge usually inspects the articles
produced in court and may even allow machines to be produced and there
operated.*
§ 1162. Production Impossible ; View by Jury ; (1) General Principle.
Where the object in question cannot be produced in Court because it is
immovable or inconvenient to remove, the natural proceeding is for the
tribunal to go to the object in its place and there observe it. This process,
traditionally known as a " view," has been recognized, since the beginnings of
jury-trial, as an appropriate one :
" En(j. : 1787, R. v. Steel, 1 Leach Cr. C, 3d
ed., 451 (larceny ; the accused not pleading on
anaignment, a jury was sworn instantrr, and
found that she stood " mute by the visitation of
God"); 1836, R. v. Pritchard, 7 C. & P. 303
(same) ; 1818, Ex parte Smith, 1 Swanst. 4, 7
(Lord Eldon, L. C. : " It is a practice by no
means nuconimon in cases of lunacy [in equity]
(analogous to a practice very common in civil
cases) that, when the lunatic cannot be removed
to the jury, and it is inconvenient for the jury
to examine the lunatic, one or two of the jury
examine the lunatic and report their observa-
tions to the rest") ; 1837, R. v. Goode, 7 A. &
E. 535 (inquest of insanity; the defendant con-
tinued to show in Court " violent symptoms of
mental derangement;" after evidence of his
former condition, it was proposed to call a medi-
cal man as to his present condition ; Denman,
L. C. J. : "I think it is quite unnecessary ; we
can judge of that by what has passed in Court
jnst now ") ; Can. : Newf. St. 1897, c. 15, § 49
(in inquiries of lunacy, the alleged lunatic " shall
be produced," and shall be examined unless the
judge dispenses); U. S,: 1873, State v. West,
1 Houst. Cr. 371, 385 (allowing production of a
collection of articles — bottled snakes, an old
shoe, a broken mirror, etc. — forming the " mu-
seum" of the defendant, and indicating his
insanity) ; 1804, Com. v. Braley, 1 Ma^s. 103
(murder; the accused appearing at arraignment
to be insane, " a jury was immediately empan-
elled" and found him insane); 1864, Beaubien
V. Cicotte, 12 Mich. 459, 492 (jury's inspection
said to be proper; "in all of these proceedings,
while testimony is generally necessary, and in
many cases scientific testimony is of the utmost
value, yet the law has always regarded the sub-
ject as usually open to the common understand-
ing and capable of being judged by personal
appearance") ; 1845, Re Russell, 1 Baib. Oh. 38,
39 (inquisition of lunacy ; Walworth, Ch. : " The
jury also have the right to inspect and examine
the lunatic; and they should do so in every
case of doubt, where such an examination can be
had ") ; 1881-2, Guiteau's Trial, Washington,
Xi.C, passim ( murder of the President ; defence,
insanity ; the accused's annoying, insulting, and
unruly behavior at the trial was allowed for the
sake of the basis of inference thus placed before
the jury as to his sanity ; no express ruling on
the subject seems to have been made).
1 1862, Line v. Taylor, 3 F. & F. 731 (bite of
a dog; the dog allowed to be produced and
inspected by the jury to determine whether he
was ferocious; perhaps under C. L. Pr. Act
1854, § 58) ; 1879, Thurman i'. Bertram, Exch.
D., Pollock, B., London Mail, July 18, 1879,
cited in 20 Alb. J. 150 (horse frightened by the
"unusual and unsightly appearance" of an ele-
phant ; the elephant brought into the court-room
for inspection) ; 1902, Moran Bros. Co. v. Smo-
qualmie F. P. Co., 29 Wash. 292, 69 Pac. 759
(contract concerning a regulator-box for a
power-plant ; the box weighing several thousand
pounds, held not necessary to be produced) ; 1 886,
Hood V. Bloch, 29 W. Va. 244, 255, 11 S. E. 910
(cheese inferior to agreed quality ; trial Court's
refusal to allow production of the cheese, held
not improper in view of the large bulk of goods
involved) ; and other instances ante, § 1160, note
1,-and post, § 1163, note.
2 As is customary in actions for infringement
of copyright, where the material is voluminous :
1799, V. Leadbetter, 4 Ves. Jr. 681 ; 1826,
Mawman v. Tegg, 2 Russ. 385, 398.
^ With the following cases compare those
cited post, § 2221, concerning the opponent's
privilege to refuse inspection ; 1 870, Seymour
V. Osborne, U Wall. 516, 559; 1878, Bates v.
Coe, 98 U. S, 31, 45, 49.
1359
§1162 EEAL EVIDENCE. [Chap. XXXVII
Circa 1258, H. de Braclon, fol. 315 (of a woman charged with waste of dower-prop-
erty) : " Since damage has thus been done in a corporeal thing which is manifest to the
sight of the eyes, she cannot by her law [i. e. by oaths] deny that it is not so, for so the
view would be contrary to the oath of the jurors. It is better, therefore, when the woman
denies waste, that a view be taken of the thing wasted against the prohibition both in the
quality of the act and in the quantity."
1891, Craig, J., in Springer v. Chicago, 135 111. 553, 561, 26 N. E. 514 : " If the parties
had the right upon the trial to prove by oral testimony the condition of the property at
the time of the trial, . . . upon what principle can it be said the Court could not allow
the jury in person to view the premises and thus ascertain the condition thereof for them-
selves? ... If a plat or a photograph of the premises would be proper evidence, why
not allow the jury to look at the property itself, instead of a picture of the same ? There
may be cases where a trial Court should not grant a view of premises where it would be
expensive, or cause delay, or where a view would serve no useful purpose; but this affords
no reason for a ruling that the power to order a view does not exist or should not be exer-
cised in any case. ... If at common law, independent of any English statute, the Court
had the power to order a view by jury (as we think it plain the Court had such power),
as we have adopted the common law in this State, our Courts have the same power."
§ 1163. Same: (2) Vievy allowable upon any Issue, Civil or Criminal;
Statutes. That the Court is empowered to order such a view, in conse-
quence of its ordinary common-law function, and irrespective of statutes
conferring express power, is not only naturally to be inferred, but is clearly
recognized in the precedents.^
Nor can any distinction here properly be taken as to criminal cases. It is
true that here, by some singular scruple, a doubt has more than once been
judicially expressed.^ But it is impossible to see why the Court's power to
aid the investigation of truth in this manner should be restricted in criminal
cases, and the better precedents accept this doctrine.*
Nor need there be any distinction to the disadvantage of any kind of civil
case ; for, although traditionally the chief and perhaps exclusive use of the
view occurred m cases involving waste, trespass, and nuisance,* it is clear
^ See Glanvil, b. XIII, c. U; Bracton, f. 69, proper in a criminal case except where iudict-
and f. 315, quoted in the foregoing section ; ment is removed by certiorari to civil side ■ over-
ritzlierbert, Natura Brevium, 123 C, 128 B, ruled) ; 1872, 11. v. Martin 12 Cox Cr 204 41
184 F; Lord MansBeld, in I Burr. 252, quoted L. J. M. C. 113, L. R. 1 C C. R. 378, 380 (view
iu the next section; 1624, Dalton u. AU Souls' allowed after summing np; trial Court's dis-
College, Palmer 363. cretion) ; 1850, Com. v. Webster, 5 Cush. 295
2 1756, R. V. Redman, 1 Kenj-ou 384 (" Per 298 (" the Court said that they had no doubt of
Curiam : There can be no view in a criminal their authority to grant a view if they deemed
prosecution without consent; and the practice one expedient, R. S. c. 137, § lO- and that views
was so before the act [4 Ann. c 1 6] ") ; 18.30, had been granted of late in several capital cases
Com. y. Ivnapp, 9 Pick. 496, 515 (view allowed, in this county ") ; 1858 Fleming i, State 11
with consent of accused, but " with hesitation," lud. 234 (jury's view of building burned, allo'wed
because the Court 'had doubts whether they under statute); 1872, Chute u State 19 Minn
could hold the prisoner to his consent"); 1855, 271, 278 (view allowable in discretion)- 1903'
Ea.stwood p. People, 3 Park. Cr. 25, 53, senilile Litton v. Com., — Va — 44 S E 9'3'(Code'
(Court may not authorize a view in criminal § 3167, held to authorize a view in 'criminal
cases) ; 1899, State v. Hancock, 148 Mo. 488, 50 cases; Buchanan, J., resting the result on St
S. W. 112 (denied, even on defendant's applica- 1887-8 c 15 § 4048)
tion) ; 1899, Price v. U. S., 14 D. C. App. 391, Whether 'the accused must have an onpor-
40.) (not decided). tunity to be present at the view is an entirely dif-
3 1897, State v. Perry, 121 N. C. 533, 27 S. E. ferent question (post, § 1803). ""'"^^'y "'^
997. Under some of the statutes m/ia it is ex- * 1814, Attorney-General w Green 1 Price
pressly allowable; see the cases cited in the 130 (allowable under the statute "in case of
next section, and ^so the following : 1847, R. v. land," aud perhaps in " informations of intru-
Whalley, 2 Cox Cr. 231 (objected to as not siou . . . on the principle of analoffv " • but not
1360
§§ 1150-1168]
JURY'S VIEW.
§ 1163
that no strict line of definition was made, nor can any reason for it be, seen
in principle. A view should be allowable in whatever sort of issue it may-
appear to be desirable.^
Moreover, the process of view need not be applicable merely where land
is to be observed ; it is applicable to any kind of object, real or personal in
nature, which must be visited in order to be properly understood.^
Thus at common law there need be no limitations of the above sorts
upon the judicial power to order a view. The regulation of the subject by
statute, which began in England some two centuries ago,^ was concerned
on an information against a glass factory for
taxes, " where a model may answer every pur-
pose"); 1824, Redfern «. Smith, 9 Moore 497
(waste; view held necessary); 1848, Stones v.
Menhem, 2 Exch. 382 (Parke, B., refusing an
order for a view of work done as carpenter,
bricklayer, etc., on a house : " The language
of the acts of Parliament, coupled with the prac-
tice, appears to me to show that this is not a
case in which a view ought to be granted ; the
necessity of a view seems to me to apply chiefly
to actions of a local nature, snch as trespass
}. c.f., nuisance, and the like").
' See instances in the cases cited in the next
section and ante, § 1160 ; and compare the simi-
lar controversy as to inspection (post, § 1862)
and privilege (post, §§ 2194, 2221).
' See instances in the citations to the next
section and § 1 1 60, ante, and also the following :
1876, Campbell v. State, 5.5 Ala. 80 (tracks of
the murderer were found in sandy soil ; the de-
fendant -viaa allowed on the trial to make tracks
in the sawdust on the court-house floor; but the
trial Court refused to allow him to be taken by
the sheriff out of the court to a place of sandy
soil and there make tracks in the jury's pres-
ence, or to allow sandy soil to be brought into
the court-room for the same purpose ; held, that
the trial Court had discretion to allow whichever
mode it thought best) ; 1891, Mayor v. Brown,
87 Ga. 596, 599, 13 S. E. 638 (injury at a street-
crossing ; jury's personal inspection of the place,
held proper) ; 1858, Nutter v. Ricketts, 6 K. 92,
96 (jury allowed to go out into the court-house
yard and inspect the horse in controversy) ;
1899, Schweinfurth v. R. Co., 60 Oh. St. 215, 54
M. E. 89 (jury allowed to go out and view ex-
periments made with horse and bnggy, engine
and train, reproducing the conditions of the
injury); 1901, Olsen v. N. P. Lumber Co., 40
CCA. 427, 100 Fed. 388, 106 id. 298, 302 (view
of the scene of an injury may include machinery
in operation); 1899, Bias v. R. Co., 46 W. Va.
349, 33 8. E. 240 (jury allowed to view the rail-
road track and oljserve experiments as to dis-
tance of distinct vision). Contra : 1901, Brady
V. Shirley, 14 S. D. 447, 85 N. "W. 1002 (view of
horses, held improper, in the absence of statutory
authority). The cases where the rights of inspec-
tion by the opponent before trial (post, § 1862) and
o{ privilege (post, §§ 2194, 2221) are involved are
sometimes not distinguished by the Courts.
' See Lord Mansfield's explanation, quoted
in the next section. The English and Canadian
statutes are as follows: England: 1705, St. 4
1361
Anne, c. 16, § 8 (" in any action" at Westmin-
ster, where it shall appear to the Court that it
will be " proper and necessary " the jurors who
are to try the issues should have the view of the
lands or place in question, " in order to their
better understanding the evidence " to be given at
the trial, the Court may order special writs of dis-
tringas or habeas corpora, commanding the selec-
tion of six out of the first twelve of the jurors
therein named, or a greater number, to whom
the matters controverted shall be shown by two
persons appointed by the Court); 1730, St. 3
G. II, c. 25, § 14 (where a view shall be allowed,
six of the jurors, or more, who shall be con-
.sented to on both sides, or if they cannot agree,
appointed by the proper ofiicer of the Court or
a judge, " shall have the view, and shall be first
sworn, or such of them as appear upon the jury "
before any drawing ; and so many only shall be
drawn, to be added to the viewers, as shall make
up the number of twelve) ; 1825, St. 6 G. IV,
c. 5f, §§ 23, 24 (in any case, civil or criminal,
wherever " it shall appear . . that it will be
proper and necessary that some of the jurors who
are to try the issues in such case should have the
view of the place in question, in order to their
better understanding the evideuce that may be
given upon the trial," an order may appoint six
or more, to be named by consent or, upon dis-
agreement, by the sheriff, and the place in ques-
tion shown them by two persons appointed by the
Court; and "those men who shall have had
the view, or such of them as shall appear upon
the jury to try the issue, shall be first sworn,"
and only so many added as are needed to make
up twelve) ; 1852, St. 15 & 16 Vict. c. 76, § 1 14
(writ of view not necessary ; order of Court or
judge sufficient) ; 1853, Second Report of Com-
missioners on Practice and Pleading, 37 (rec-
ommends the allowance of orders for inspection,
by the jury or by the party or his witnesses, " of
any premises or chattels the inspection of which
may be material to determine the question in
dispute"); 1854, St. 17 & 18 Vict. c. 125, § 58
(" Either party shall be at liberty to apply to a
Court or a judge for a rule or order for the in-
spection by the jury, or by himself, or by his
witnesses, of any real or personal property the
inspection of which may be material to the
proper determination of the question in dis-
pute"; the jndge to make the order on such
terms as he sees fit ; and the rules for views un-
der preceding acts to apply as nearly as may
be) ; 1883, Rules of Court, Ord. 50, R. 3 (" It
shall be lawful for the Court or a judge, upon
§ 1163
REAL EVIDENCE.
[Chap. XXXVII
rather with the details of the process, than with the limits of the power.
Statutes now regulate the process in almost every jurisdiction;^ but it may
the application of any party to a cause or matter,
aud upon such terms as may be just, to make
any order for the detention, preservation, or in-
spection, of any property or thing, being the
subject of such cause or matter or as to which
any question may arise therein, aud for all or
any of the purposes aforesaid to authorize any
persons to euter upon or into any land or build-
ing in the possession of any party to such cause
or matter, and for all or any of the purposes
aforesaid to authorize any samples to be taken
or any observation to be made or experiment
to be tried, which may be necessary or expe-
dient for the purpose of obtaining full infor-
mation or evidence ") ; R. -1 (" It shall be lawful
for any judge ... to inspect any property
or thing concerning which any question may
arise therein ") ; R. 5 (" The provisions of Rule
3 of this order shall apply to inspection by
a jury," which may be ordered as the Court
" may think fit ") ; Canada : Dom. Crim. Code
1892, § 722 (in criminal trials the Court may
order a view of " any place, thing, or person,"
aud prescribe the manner of showing) ; Man.
Rev. St. 1902, c. 40, Rules .581, 582 (like Ont.
Rules 570, 571); Rule 894 (like ib. 1036); N.
Br. Cons. St. 1877, c. 45, § 22 (" when a view
shall be considered necessary by the Court, the
jury sworn to try the cause shall make the
view " ; showers if necessary to be appointed by
the Court; N. Sc. Rules of Court 1900, Ord.
34, R. 36 (referee may " have any inspection or
view " which he deems expedient) ; Ord. 50,
R. 3 (like Ont. R. 1 096) ; ib. R. 4 (any judge on
appeal may inspect " any property or thing "
concerned) ; ib. R. 5 (Rule 3 above shall apply
to "inspection by a jury ") ; Ont. Rev. St. 1897,
c. 61, § 131 (in a civil case or a case on a penal
statute before the High Court, the judge may
order a view if it appears " proper and necessary
that the jurors or some of them, who are to try
the issues in the case should have a view of the
place in question in order to their better -under-
standing the evidence that may be given upon
tlie trial") ; § 132 (six or more are to have the
view) ; § 133 (showers are to be appointed by the
inspection of premises or chattels; the one kind
of statute has chiefiy in mind the judicial power
to permit the jury to use this mode of proof, the
other hsis in mind the compulsory submission of
the opponent to an entry upon liis premises,
before trials by the Jirst party and his witnesses ;
the contrast is shown in Rules 3 and 5, supra,
of the English Court) : Alaska: C. C. P. 1900,
§ 188 (like Or. Annot. C. 1892, § 197); Anz.:
P. C. 1887, § 1669 (like Cal. P. C. § 1119) ; Ark.:
Stats. 1894, § 2225 (criminal cases; like Cal.
P. C. § 1119); § 5821 (like Cal. C. C. P. § 610,
substituting " real property " for "property ") ;
Cal.: C. C. P. 1872, § 1954 ("Wlienever an
object, cognizable by the senses, has such a rela-
tion to the fact in dispute as to afford reasonable
grounds of belief respecting it, or to make an
Item in the sum of evidence, such object may be
exhibited to the jury ... [or testified to]. The
admission of such evidence must be regulated
by the sound discretion of the Court") ; § 610
(" When in the opinion of the Court it is proper
for the jury to have a view of the property which
is the subject of litigation, or of the place in
which any material fact occurred," the Court
may order a view, the place to be shown by the
Court's appointee) ; P. C. § 1119 (" When in -the
opinion of the Court it is proper that the jnry
should view the place in which the offence is
charged to have been committed, or in which
any other material fact occurred," it may order
a view, the place to be "shown to thein by a
person appointed by the Court for that pur-
pose") ; Colo.: Annot. St. 1891, C. C. P. § 188
(like Cal. C. C. P. § 610) ; St. 1893, p. 78, § 1
(in all proceedings involving mining rights, it
shall be the Court's duty, on application of
either party, to order a view; each party to
nominate a gnide approved by the Court, and
such guide or guides to point out " such features
in the premises as it is desirable that the jury
should see, and answer all questions propounded
by the jury," vrith specified restrictions) ; Del. :
Rev. St. 1893, c. 109, § 20 (jury may view " the
premises or place in question, or to wliich the
controversy relates, when it shall appear to
judge) ; § 135 (mode of selecting the jury after the Court that such view is necessarv to a just
the view); Rules of Court 1897, § 570 (the decision"); Fla.: Rev. St. 1892, § 2918 (in
indirfi **'Tnav insnftct ftnv nrnnftrhv or thino' rnn- pi-inr>ini»l nocoo "tlio ^^/^,,».^ *«a,r ^.,A^^ .. ,.:.,.., i.„
judge "■ may inspect any property or thing con
cerning which any question arises ") ; § 571
(view may be ordered of " any real or personal
property the inspection of which may be material
to the proper determination of the question in
dispute ) ; § 1 096 (similar ; and for this pur-
pose the judge may authorize entry upon land
or buildings in the party's possession) ; P. E. I.
St. 1873, c. 22, § 107 (" It shall be sufiicient to
obtain a rule of the Court or judge's order direct-
ing a view to be had ") ; § 252 (view of " any
real or personal property the inspection of which
may be material to the proper determination "
may be ordered).
, ' The statutes in the United States are as
follows (but these should be compared with the
statutes cited jpost, §§ 1862, 2194, 2221, dealing
criminal cases, "the Court may order a view by
the jury"); § 1087 (in civil proceedings, "the
jury may iu any case, upon motion of either
party, be taken to view the premises or place in
cjuestion, or any property, matter, or thing relat-
ing to the controversy between the parties, when
it shall appear to the Court that such view is
necessary to a just decision ") ; Ida. : Rev. St.
1887, § 7878 (like Cll. P. C. § 1119); §4.386
(like Cal. C. C. P. § 610); III: Rev. St. 1874.
c- 47. § 9 (jtiry in eminent domain proceedings
" shall, at the request of either party, go upon
the land sought to be taken or damaged, in per-
son, aud examine the same ") ; Ind. : Rev. St.
1897, § 552 (" Whenever in the opinion of the
Court it is proper for the jury to have a view of
real or personal property which is the subject
with the privilege of a party to refuse to allow of litigation, or of the place where any material
1362
1150-1168]
JURY'S VIEW.
§ 1163
be assumed that the judicial power to order a view exists independently of
any statutory phrases of limitation.
fact occurred," the Court may order a view, the
place to be shown by " some person appointed
by the Court"); § 1918 (in criminal cases,
" whenever, in the opinion of the Court and
with the consent of all the parties, it is proper
for the jury to have a view of the place in which
any material fact occurred," a view may be or-
dered, the place to be shown by " some person
appointed by the Court for the purpose ") ; la. :
Code 1897, § 3710 (" When in the opinion of the
Conrt it is proper for the jury to have a view of
the real property which is the subject of contro-
versy, or the place where any material fact
occurred," it may be ordered, the place to be
shown by the Court's appointee) ; § 5.380 (in
criminal cases, " when the Court is of the opin-
ion that it is proper the jury should view the
place in which the offence is charged to have
been committed, or in which any other material
fact occurred," it may order a view, the place to
be shown by Court's appointee) ; Kan.: G. St.
1897, c. 102, § 235 (" Whenever in the opinion
of the Court it is proper for the jury to have a
view of the place in which any material fact
occurred, it may order a view of the place, which
shall be shown to them by some person appointed
by the Court for that purpose ") ; Ki/ : C. C. P.
1895, § 318 (view allowable, when Court deems
proper, " of real property which is the subject of
litigation or of the place in which any material
fact occurred " ; some person appointed by the
Court is to show it to them) ; C. Cr. P. § 236
(view allowable in discretion when " necessary "
for the jury to see the place of the alleged
offence "or in which any other material fact
occurred"; judge, prisoner, and counsel to ac-
company ; the judge, or a shower appointed by
the Court, to show the place) ; La. : C. Pr. 1894,
§ 139 (Court may order production of "the ob-
ject in dispute, of which he is in possession, if it
be such movable property as can be produced,
in order that it may be shown by testimony that
it is in reality the object claimed") ; Me. : P. S.
1883, c. 18, § 80 (in actions for highway injuries,
view may be ordered, when it would " materially
aid in a clear nnderstandins; of the case ") ; c. 82,
§82 ("in any jury trial" a view may be or-
dered) ; c. 95, § 2 (view may be ordered in
action for waste) ; c. 104, § 41 (view may be
ordered in real actions, if in Court's opinion " it
is necessary to a just decision ") ; c. 134, § 23
(view may be ordered in a criminal case) ;
Masi!.: Pub. St. 1882, c. 214, § 11 (view may be
ordered in criminal cases); c. 170, §43 (view
may be had at the request of either party of
" the premises or place in question, or any prop-
erty, matter, or thing relating to the contro-
versy, when it appears to the Court that such
view is necessary to a just decision," on tender
of expenses, etc.); c. 51, §6 (view in better-
ment cases to be had at the request of either
party) ; c. 190, § 13 (same for flowage cases) ;
c. 49, § 48 (view in highway cases when the jury
think proper or at either party's request) ; c. 49,
§ 86 (special rule for Suffolk Co.) ; c. 180, § 2
(view may be ordered in waste cases) ; Mich. ;
1363
Comp. L. 1897, § 10256 (when a court " shall
deem it necessary that the jury view the place
or premises in question, or any property or thing
relating to the issues between the parties," the
Court may order a view on either party's applica-
tion, " and direct the manner of effecting the
same ") ; § 11952 (view may be ordered in crimi-
nal cases " whenever such Court shall deem such
view necessary") ; Minn. : Gen. St. 1894, § 5372
(" Whenever, in the opinion of the Court, it is
proper that the jury should have a view of real
property which is the subject of the litigation,
or of the place in which any material fact oc-
curred," a view may be ordered, the place to be
shown by the judge or the Court's appointee) ;
§ 7330 (Court " may order a view " in crimi-
nal case); Miss.: Annot. Code 1892, § 2391
(" When, in the opinion of the Court, on the
trial of any cause, civil or criminal, it is proper
for the jury to have a view of the property which
is the subject of litigation, or of the place in
which the offence is charged to have been com-
mitted, or in which any material fact occurred,"
a view may be ordered, the place to be shown
by the Court's appointee) ; amended by St. 1894,
c. 62 (substituting a new provision as follows :
beginning the same as before, down to " com-
mitted," then continuing : " or the place or
places in which any material fact occurred, or
any material object or thing in any way con-
nected with the evidence in the case, the Court
may at its discretion enter an order providing
for such view or inspection " ; the " whole or-
ganized court " is to go, and the thing " shall be
pointed out and explained to the Court and jury
by the witnesses in the case, who may at the dis-
cretion of the Court be questioned by hi m and
by the representatives of each side, at the time
and place of such view or inspection, in refer-
ence to any material fact brought out by such
view or inspection " ; the Court is to be regarded
as still in session with full powers; and in
criminal trials the view " must be had before
the whole court and in the presence of the ac-
cused and the production of all evidence from
all witnesses or objects animate or inanimate
must be in his presence ") ; Mont.: C. C.P.I 895,
§ 1081 (lilie Cal. C. C. P. § 610), § 3250 (like
Cal. C. C. P. § 1954) ; P. C. § 2097 (like Cal.
P. C. § 1119); Nebr.: Comp. St. 1899, § 7205
(criminal cases; like Kan. Gen. St. c. 102);
§ 5856 (in civil cases " whenever, in the opinion
of the Court, it is proper for the jury to have a
view of property which ig the subject of litiga-
tion, or of the place where." etc., as in criminal
cases); Nev. : Gen. St. 1885, §-4257 (like Cal.
P. C. § 1119); N.H.: Pub. St. 1891, c. 227,
§ 19 (in actions involving right to real estate, or
where "the examination of places or objects
may aid the jury in understanding the testi-
mony," the Court may in discretion direct a
view); N. J.: Gen. St. 1896, Evidence, § 24
(where inspection of "any premises or chattels
in the possession or under the control of either
party ' " would aid in ascertaining the truth of
any matter in dispute," Court may order pos-
§ 1164
EEAL EVIDENCK
[Chap. XXXVII
§ 1164. Same : (3) VieTw alloiirable in Trial Court's Discretion. The incon-
venience of adjourning court until a view can be had, or of postponing the
trial for the purpose, may suffice to overcome the advantages of a view, par-
ticularly when the nature of the issue or of the object to be viewed renders
the view of small consequence. Accordingly, it is proper that the trial
Court should have the right to grant or to refuse a view according to the
requirements of the case in hand. In the earlier practice, the granting of a
view seems to have become almost demandable as of course ; but a sounder
doctrine was introduced by the statute of Anne (which apparently only
re-stated the correct common-law principle) ; so that the trial Court's dis-
cretion was given its proper control :
1757, Mansfield, L. C. J., Rules for Views, 1 Burr. 252: "Before the 4 & 5 Anne,
c. 16, § 8, there could be no view till after the cause had been brought on to trial. If
the Court saw the question involved in obscurity which might be cleared up by a view,
the cause was put off, that the jurors might have a view before it came on to be tried
again. The rule for a view proceeded upon the previous opinion of the Court or judge,
sessor to permit inspection by jnrv, under proper
regulations) ; St. 1900, c. 150, § 30 (re-euacts
Gen. St. Evid. § 24, inserting after " chattels "
the words "or other property"); Gen. St. 1896,
Juries § 31 (jury of view ; special venire of view
may be issued, for six or more to view; trial
to proceed notwithstanding defect of members
viewing, etc.) ; § 32 {a struck jury of twelve
may view) ; § 35 (in any cause criminal or civil,
before or after trial begun, a view may be or-
dered of "any lands or place" if the Court
deems it " necessary to enable the jury better to
understand the evidence ") ; St. 1898, c. 237,
§ 77 (upon trials of indictments, the Court may
order a view of " any lands or place, if in the
judgment of the Court such view is nee&ssary
to enable the jury better to understand the evi-
dence given in the cause " ; the Court to direct
the manner of the view) ; N. Y. : C. Cr. P. 1881,
§ 411 (view in criminal cases allowable when
" in the opinion of the Court it is proper ") ;
C. C. P. 1877, § 1659 (in action for waste,view may
be ordered in discretion) ; N. D. : Rev. C. 1 895,
§ 8209 (like Cal. P. C. § 1119); § 5434 (civil
cases; like Cal. C. C. P. § 610) ; Oh.: Rev. St. '
1898, § 7283 (" Whenever in the opinion of the
Court it is proper for the jurors to have a view
of the place at which any material fact oc-
curred," the Court may order a view, an ap-
pointee of the Court to show the place) ; § 6428
(view allowable in eminent domain proceed-
ings); Rev. St. 1900, § 5191 (like R. S. 1898,
§ 7283, supra, inserting after " view," the words
" of the property which is the subject of litiga-
tion, or"); Oki: Stats. 1893, §5222 (criminal
cases; like Cal. P. C. § 1119); § 4167 (civU
cases; like Cal. C. C. P. § 610) ; Or.: Codes &
G. L. 1892, C. C. P. § 197 (like Cal. C. C. P.
§ 610, substituting " real property " for " prop-
erty ") ; C. C. P. § 769 (like Cal. C. C. P. § 1 954,
substituting "the exhibition of such object to
the jury " for "the admission, etc. ") ; Pa. : St.
1834, Pub. L. 333, §§ 158, 159, P. & L. Dig.
Juries, §§ 83, 84 (when a view is allowed, " six
of the first twelve jurors named in the panel, or
more of them, shall be taken " to the place ;
" those of the viewers who shall appear [at the
trial] shall first be sworn," and enough added to
make up the twelve) ; R. I. : Gen. L. 1896,
c. 244, § 1 (" In all cases in which it shall seem
advisable to the Court, on request of either
party, a view by the jury may be allowed," and
the Court shall regulate the proceedings) ; 5. C. :
Rev. St. 1893, § 2410 ("the jury in any case may
at the request of either party be taken to view
the place or premises in question, or any prop-
erty, matter, or thing relating to the contro-
versy between the parties, when it appears to
the Court that such view is necessary to a just
decision"); S. D.: Stats. 1899, § 8666 (like
Cal. P. C. § 1119) ; § 6257 (civil cases; like Cal.
C. C. P. § 610) ; Tenn. : Code 1896, § 1856 (jury
of inquest of damages by eminent domain may
examine gronnd, etc.) ; § 3689 (jury for proces-
sioning boundaries of land mav examine it) ;
Utah : Rev. St. 1898, § 4870 (criminal cases ; like
Cal. P. C. § 1119) ; § 3152 (civil cases; like Cal.
C. C. P. §610); Vt.: Stats. 1891, §1234 (in
actions for damages to real estate or concerning
title to land, where =i view is " necessary," it
may be granted on motion of either party) ;
Va : Code 1887, § 3167 (iu civil cases, at either
party's request, the jury may be " taken to view
the premises or place in question or any prop-
erty, matter, or thing, relating to the contro-
versy," when it appears to the Court " that such
view is necessary to a just decision " ; the re-
quester to advance expenses) ; Wash. : C. &
Stats. 1897, § 4998 (like CiU. C. C. P. § 610,
substituting "real property" for "propertv,"
and providiug alternatively that the judge mav
act as shower) ; § 6948 (Court may oider a view
in a criminal trial) ; W. Va. : Code 1891, c. 1 16,
§ 30 (like Va. Code, § 3167) ; Wis. : Stats. 1898,
§ 4694 (the Court may order a view in a crimi-
nal case) ; § 2852 (civil cases ; like Va. Code,
§ 3167) ; W//0. : Rev. St. 1887, § 3303 (like Oh.
Rev. St. § 7283, inserting " disinterested " before
"person") ; § 2554 (like ib. § 5191).
1364
§§ 1150-1168] JURY'S VIEW. § 1164
at the trial, ' that the nature of the question made a view not only proper but necessary ' ;
for the judges at the assizes were not to give way to the delay and expense of a view
unless they saw that a case could not be understood without one. However, it often
happened in fact that upon the desire of either party causes were put off for want of a
view upon specious allegations from the nature of the question that a view was proper, —
without going into the proof so as to be able to judge whether the evidence might not
be understood without it. This circuity occasioned delay and expense ; to prevent which
the 4 & 5 Anne, c. 16, § 8, impowered the Courts at Westminster to grant a view in the
first instance previous to the trial. . . . [He then refers to the other statute of 3 G. II,
and to the supposed rule as to the number of viewers necessary, treated infra-l Upon a
strict construction of these two acts in practice, the abuse which is now grown into an
intolerable grievance has arisen. Kothing can be plainer than the 4 & 5 Anne, c. 10,
§ 8. . . . The Courts are not bound to grant a view of course ; the Act only says ' they
may order it, where it shall appear to them that it will he proper and necessary.' . . . [He
then refers to the abuse of repeated postponement of trial to obtain a view.] We are
all clearly of opinion that the Act of Parliament meant a view should not be granted
unless the Court was satisfied that it was proper and necessary. The abuse to which they
are now perverted makes this caution our indispensable duty ; and, therefore, upon every
motion for a view, we will hear both parties, and examine, upon all the circumstances
which shall be laid before us on both sides, into the propriety and necessity of the mo-
tion ; unless the party who applies will consent to and move it upon terms which shall
prevent an unfair use being made of it, to the prejudice of the other side and the
obstruction of justice."
Accordingly, this provision, leaving the granting of the view to the trial
Court's discretion, is found in almost every statute on the subject ; and this
doctrine is constantly exemplified in judicial decision.^ It may be noted,
>■ Compare the statutes ante, § 1163; iu the (eminent domain) ; 1895, Pike v. Chicago, 155
following cases, except where otherwise noted, id. 656, 40 N. E. 567 (same) ; la. ; 1872, King v.
the doctrine of the trial Court's discretion is R. Co., 34 la. 458, 462 ; 1892, Morrison v. R. Co.,
enforced; most of the rulings apply one of the 84 id. 663, 51 N. W. 75; ICan.: 1883, State v.
statutes already mentioned : Eng.: 1815, Adod., Purbeck, 29 Kan. 380 (view of wheat said to
2 Chitty 422 (whether there was a hole on cer- have been stolen) ; Ky. : 1893, Roberts v. Com.,
tain premises; view refused, because "in this 94 Ky. 499, 22 S. W. 845; 1892, Kentucky
case it might mislead ") ; 1742, Davis v. Lees, C. R. Co. v. Smith, 93 Ky. 449, 460, 20 S. W.
Willes 344, 348 ; Can. : 1880, Anderson v. 392, semble (discretion as to time of view) ;
Mowatt, 20 N. Br. 255, semhie (view after charge 1900, \'alley T. & G. R. Co. v. Lyons, — Ky.
given, allowable) ; Ark.: 1875, Benton v. State, — , 58 S. W. 502 (discretion) ; 1900, JVIemphis
30 Ark. 328, 345, 350 (discretion of trial Court & C. P. Co. v. Buckner, 108 id. 701, 57 S. W.
controls as to necessity, under statute) ; 1880, 4S2 (discretion); Mass.: 1899, Com. v. Chance
Curtis V. State, 36 id. 284, 289 (same, as totime ' 174 Mass. 245, 54 N. E. 551 (discretion of
of view); Cal.: 1897, People c. White, 116 Cal. trial Court controls); Mich.: 1893, I.eiiUein v.
17, 47 Pac. 771 (premises of a Imrglary) ; 1897, Mever, 95 Mich. 586, 55 N. W. 367 (injury to
Niosi V. Laundry, 117 id. 257, 49 Pac. 185 (place land by flowage; view by jury in discretion of
of a street accident); Fla.: 1878, Coker v. Court); 1896, Mulliken w. Corunna 110 id 212
Merritt, 16 Fla. 416, 421 (statute applied) ; 68 N. W. 141 (injury by falling on a defective
Ga.: 1896, Broyles v. Prisock, 97 Ga. 643, 25 sidewalk); Minn.: 1872, Chute v. State, 19
S. E. 389 (whether both parties must consent, Minn. 271, 278 (in discretion, under statute)-
left undecided); 1899, Johnson v. Winship M. 1895, Brown v. Kohout, 61 id. 113 63 N W
Co., 108 id. 554, 33 S. E. 1013 (defective 248; 1901, Northwestern M. L. I. Co. v Sua
machinery ; order to view it, within judicial Ins. Office, — id. — , 88 N, W. 272 ; N C :
powers in absence of parties' consent, depends 1892, Jenkins v. R. Co., HON. C. 439 441 15
on trial Court's discretion) ; ///. : 1891, Springer S. E. 193 (discretion of trial Court) ; Oh : 1 894
K. Chicago, 135 ni. 553, 561, 26 N. E. 514 (view .Tones v. State, 51 Oh. St. 331, 38 N. E. 79 (the
allowable in any case in discretion; here, of view may be had in another county in the State) •
property damaged by a viaduct; practically Pa.: 1891, Com. u. Miller, 139 Pa. 77, 95 21 Atl'
overruhng Doud i>. Guthrie, 13 111. App. 653, 138 (discretion of trial Court) ; 1898, Rudolph v
t^% ^^^*' "^*"® "■ ^™°s'°°' 150 id. 616, 621, R. Co., 186 id. 541, 40 Atl. 1083 (land-dam ges ;
37 N. E. 901 (same principle approved ; here view in discretion) ; 1899, Mintzner v. Hogg 192
allowed for a special assessment on land) ; 1894, id. 137, 43 Atl. 465 (street-iniury) ; Va -1858
Osgood u. Chicago, 154 id. 194, 41 N. E. 40 Baltimore & 0. R. Co. v. Polly, 14 Gratt 447*
1365
§ 1164 REAL EVIDENCE. [Chap. XXXVII
as one circumstance affecting the exercise of that discretion, that, since the
present condition of an object is not always a good index of its prior condi-
tion at the time in issue {ante, § 437), a view may well be refused where
such a change of condition is likely to have occurred that a view of the ob-
ject in its present condition would probably be misleading.^
§ 1165. Same: (4) View by Part of Jury. According to the earUer prac-
tice, a view was obtained before the trial and before the final selection of the
jurors ; and it was not regarded as necessary that all of the jurors finally
selected should have participated in the view:
1757, Mansfield, L. C. J., in 1 Burr. 252 : the reporter states that after the 4 & 5
Anne, c. 16, § 8, views were granted upon motion, as of course; and under this act and
3 G. II, c. 25, § 14, a notion prevailed " that six of the first twelve upon the -panel must
view and appear at the trial; if they did not, there could be no trial, aud the cause
must go off." "Where either party wished delay or vexation, he moved for a view. A
thousand accidents might prevent a view, or six of the twelve from attending the view,
or their attending the trial. He who wished th6m not to attend might by vari-
ous ways bring it about. . . . Though twelve viewers should appear at the trial, yet
. according to the notion which prevailed if six of the first twelve upon the panel were
not among them, the cause could not be tried. The tendency of this abuse to delay,
vexatious expense, and the obstruction of justice, was so manifest that the Court thought
it their duty to consider of a remedy; and Lord Slansfield for the Court annouuced
the following rule: "The 3 G. II, u. 25, § 14, provides ' that where a view shall be
allowed, the jurors who have had the view shall be first sworn, or such of them as shall
appear, before anj' drawing,' which means, in opposition to such other jurors as are to be
drawn by ballot, and not to establish that six at least of the first twelve shall be sworn.
... It is infinitely better that a cause should be tried upon a view had by any twelve,
than by six of the first twelve ; or by any six, or by fewer than six, or even without any
view at all, than that the trial should be delayed from year to year, perhaps forever ";
and the Court accordingly announced that the view would thereafter be granted only upon
consent to such terms as would be just [as quoted ante, § 1164] ; and the reporter con-
tinues: " No party has ever since moved for a view without consenting to the terms;
... as the non-attendance of viewers can now gratify neither party, both concur in
wishing the duty performed " ; he then gives the customary terms consented to for a spe-
cial jury: " Consenting that in case no view shall be had, or if a view shall be had by any
of the said jurors, whether they shall happen to be any of the twelve jurors who shall be
470 (excaTation-contract ; trial Court's refusal tion before trial {imst, § 1862) and a privilege to
to order a view, held not improper) ; Wash. : refuse such inspection {post, §§ 2194, 2221).
1892, Klepsch v. Donald, 4 Wash. 436, 445, 30 a Compare also the cases cited ante, § 1154,
Pac. 991 (injury received from a blast of rock) ; par. (6) : 1899, Seward v. Wilmington 2 Marv.
1894, State v. Coella, 8 id. 512, 36 Pac. 474; Del. Snp 189, 42 Atl. 451 (street injury ; view
1898, State v. Hunter, 18 id. 670, 52 Pac. 247; not ordered, because the injury had been received
W. Va. : 1892, Gunn v. R. Co., 36 W. Va. 165, three years before aud the place was not in the
178, 14 S. E. 465 (death on a railroad track; same condition); 1896, Broyles v. Prisock, 97
trial Court's refusal to order view, held not im- Ga. 643, 25 S. E. 389 (the trial Court has a dis-
proper) ; 1897, State v. Musgrave, 43 id. 672, cretion to refuse, where a material alteration in
28 S. E. 813 (view of locality of death ; trial the premises lias occurred) ; 1893 Banning t>.
Court's discretion controls) ; 1903, Davis v. R. Co., 89 la. 74, 80, 56 N. W. 277 (locality of
American T. & T. Co., — id. — , 45 S. E. 926; railroad injury ; view allowed in discretion,' the
Wis.: 1871, Pick V. Rubicon H. Co., 27 Wis condition of the place not being shown to have
433, 446 (flowage; trial Court's discretion); changed); 1863, State v. Knapp 45 N H. 148,
1882, Boardman i-. Ins. Co., 54 id. 364, 366, 11 157 (rape; at a view of the place, the lack of a
N. W. 417 (trial Court's discretion ; here, a fire board in a fence, making an aperture by which
loss) ; 1892, Andrews t'. Youmans, 82 id. 81, 82 ; witnesses said they bad seen certain facts, had
.1901, Koepke v. Milwaukee, 112 id. 475, 88 been replaced ; notice not having been given by
N. W. 238 (defective sidewalk). the State, the burden was upon it to show that
Distinguish the rulings as to a party's inspec- no harm was done to the defendant's case).
1366
§§ 1150-1168] JURY'S VIEW. § 1166
first named in the said writ or not, yet the said trial shall proceed " ; and also for common
juries : " Consenting that in case no view shall be had, or if a view shall be had by any of
the jurors, whether they shall happen to be six or any particular number of jurors who
shall be so mutually consented to as aforesaid [referring to the consent to the statutory
selection from the panel], yet the trial shall proceed." '■
Under modern practice the view is commonly had after the complete impanel-
ling of the jury ; so that the reasons for being satisfied with a view by a part
only of the jurors no longer exist. It may well be regarded as within the
power of the trial Court to sanction no view in which the whole jury has not
participated. Nevertheless, it should be noted that a participation by the
entire number is no essential part of the orthodox and traditional notion of a
view; and that the absence of one or more jurors need not be regarded as
in itself fatal to the sufficiency of the view.^
§ 1166. Same : (5) Unauthorized View. That a view unauthorized by
order of Court is improper, and that the information so obtained should be
rejected, may easily be conceded. But it is important to distinguish the rea-
sons for the impropriety. Assume that the whole number of the jury have
attended, so as to obviate possible objection on that score ; assume further
that no witness or other person converses with the jury or attends them
while viewing, so as to eliminate objections based on the Hearsay rule ; ^ yet
it would still be an improper proceeding. A view not had under the direction
of the Court is improper because of the danger that the jury would view the
wrong objects, and because of the difficulty for the party of ascertaining
whether they have viewed the right objects. Under the instructions of the
Court, and with the official assistance furnished by the Court's order, these
objections disappear; otherwise, they are serious and sufficient:
1893, Mitchell, J., in AldricJi v. Wetmore, 52 Minn. 161, 172, 53 N. W. 1072: "The
theory of jury trials is that all information about the case must be furnished to the jury
in open court, where the judge can separate the legal from the illegal evidence, and where
the parties can explain or rebut; but if jurors were permitted to investigate out of court,
there would be great danger of their getting an erroneous or one-sided view of the case,
which the party prejudiced thereby would have no opportunity to correct or explain."
Such unauthorized investigations by way of view have invariably been re-
garded as improper ; the only question has been whether the irregularity
was dangerous enough to require a new trial.^
^ The error above-mentioned as to the earlier wood only, without entring into it ; and it was
practice was founded apparently upon the follow- holden that the same was sufficient, for other-
ing precedents : Brooke's Abridgment, " View," wi.se it would be tedious for the jury to have
89, 95; 1614, Gage v. Smith, Godb. 209 ("if had the view of every stub of a tree which had
six of the jury are examined upon a ooi/pr dire been felled ") ; 1863, R. v. Coroner, 9 Cox Cr.
if they have seen the place wasted, that' is suf- 373 (not viewing all at the same time),
iicient"); 1628, Colie upon Littleton, 158 6. 2 Possibly some of the cases cited in the
But the error had already been corrected next section may have proceeded upon a doc-
jndicially before Lord Mansfield's time: 1699, trine contrary to that above set forth; but
Anon., 2 Salk. 665, semlile (where the practice such a doctrine is without orthodox support.
of leaving out "so many of the principal panel i This question is dealt with post, § 1802.
who were not at the view" was disapproved). * This question being one peculiar to the
In the following cases, apparent irregularities law of new trials, no attempt has here been
have been thought harmless: 1578, Anon., 1 made to collect all the precedents; compare
Leon. 267, pi. 359 ("In an action of wa-st, of the cases cited post, § 1802: 1875, Stampofski
wast assigned in a wood, the jury viewed the v. Steffens, 79 111. 303, 306 (private inspection
1367
§ 1167 REAL EVIDENCE. [Chap. XXXVII
§ 1167. Same: Principles to be Distinguished (Juror's Private Knowledge;
Official Sho'wers ; Accused's Presence ; Fence and Road Viewers). The pro-
priety of a view, as resting merely upon considerations inherent in the process
of inspection, must be distinguished from other questions that sometimes
arise in connection with a view.
(1) (a) A juror must proceed upon what he learns as a member of the jury
and not upon his own private belief otherwise acquired {post, § 1800). Ac-
cordingly, the private and unauthorized investigation by a juror of some ob-
ject connected with the trial may be regarded, not only as a violation of the
foregoing principle (§ 1166), but also as an improper use of his private knowl-
edge. (J) The acquisition of information from other persons present at a view
is a violation of the Hearsay rule {post, § 1802). (c) The presence of ojflcial
" shoivers " at a view is on principle not a violation of the Hearsay rule ; the
reasons are examined elsewhere {post, § 1802). {d) Whether the accused in
a criminal case is constitutionally entitled to be present at a view is a question
involving the Hearsay rule {post, § 1803). («) Whether the jury, after con-
sidering the information obtained at a view, may disregard the testimony of
witnesses is a question of the jury's duty, and is not within the scope of the
present subject ; a principle bearing upon it is discussed in the next section.
(2) {a) The process by which, under statutes in many jurisdictions, /ence
or road viewers are appointed is entirely different from the process here dealt
with as a " view." Such viewers form in effect a special and anomalous tri-
bunal, and take in their own way all the evidence that they need. Their
procedure has nothing to do with the view by an ordinary jury. (6) The
ancient learning about the right which was possessed by a tenant in formedon
to have a view of lands in which he was interested was an entirely different
thing from a jury's view ; ^ it was a right of inspection given him to protect
his interests, and is in any case to-day of no importance.^
by one juror, held improper); 1884, Lnck v. described, wonld make tracks as described, held
State, 96 Ind. 16, 19 (taking the jury to the improper, because done without leave of Court
place by way of exercise, not sufficient in and after the case had been submitted ; but here
itself to authorize new trial); 188.5, Epps v. the defendant's counsel, himself hadsacrfrestedimi
State, 102 id. 537, 555, 1 N. E. 491 (taking urged the experiment; "this looks"iike aUow-
them among other people for exercise ; same ing a party to take advantage of his own wrong,
ruling) ; 1897, Tudor ;•. Com., — Ky. — , 4.3 and therefore has caused some hesitation on onr
S. W. 187 (conduct of the jury while taking part"; there ought to have been no hesitation
exercise, held not a view) ; 1878, VVinslow i-. over so impudent an objection) ; 1849, Deacon r.
Morrill, 68 Me, 362 (juror visited the location Shreve, 22 N. J. L. 176 (private view by three ju-
privatcly ; held improper) ; 1 893, Harrington v. rors, where pei-sons talked to them for the plain-
R. Co., 157 Mass. 579, 32 N. E. 955; 1893, tiff, held improper) ; 1855, Eastwood u. People 3
Aldrich v. Wetmore, 52 Minn. 164, 172, 53 Park. Cr 25, 52 (unauthorized view by six
N. W. 1072 (new trial granted for private in- jurors, held improper) ; 188') People v Court
spection by three jurors) ; 1893, Woodbury v. 101 N. T. 245, 4 N. E. 259 (one of the jnrvmeii
Anoka, ib. 329, 54 N. \V. 187 (similar) ; 1897, went alone to the scene of affray to observe it;
Rush V. R. Co., 70 id. 5, 72 N. W. 733 (view sembh, improper) ; 1888, People i\ Johnson, 110
without order of Court or knowledge of parties, id. 134, 144, 17 N. E. 684 (view allowable under
improper, because "the parties have no oppor- C. Cr. P. § 411 ; faihue to administer oath to
tunity of meeting, explaining, or rebutting evi- officers, held to be waived) ; 1S94, Peppercorn r.
deuce so obtained ") : 1901, Pierce v. Brennan, Black River Falls, 89 AVis. 38, 61 N. W. 79.
83 id. 422, 86 N. W. 417 (improper visit by i See its features discussed in William v.
jurors); 1878, State i'. Sanders, 68 Mo. 202 Gwyn, 2 Saund. 44(7, note 4.
(experiments made by some of the jury out of * The following case is therefore founded on
court to see whether worn-out boots, like some error; 1875, Smith v. State 42 Tex 444 448
1368
§§ 1150-1168] JURY'S VIEW. § 1168
§ 1168. Non-transmissibility of Evidence on Appeal; Jury's View as "Evi-
dence." (1) On a number of occasions in modern times the notion has been
advanced that autoptic proference of the thing itself before the tribunal is to
be excluded as a method of proof because it is impossible to transmit to the
higher Court on appeal the source of belief thus laid before the tribunal be-
low, and because thus the losing party cannot obtain a proper revision of the
proceedings by the higher Court. The argument is best set forth in the fol-
lowing passage :
1872, Downey, J., in Jeffersonville M. §• /. R. Co. v. Bowen, 40 Ind. 5i8: "It is
urged . . . that in no case where the jury has had a view of the place in which any ma-
terial fact occurred . . . can the evidence be got into the record, as it would be impossible
to put into the bill of exceptions the impressions made upon the minds of the jury by such
view; and that in this way all benefit of appeal to this Court, so far as any question is
concerned which depends upon all the evidence being in the record, would be wholly cut
off. It is further contended that whether the jury shall have a view of the place, etc., is a
matter entirely in the discretion of the Court, and that the Court may thus in its discretion
deprive a party of the right to have questions depending on the evidence reviewed in this
Court, even in cases of the greatest moment. It is urged that under the rule in that case
[a contrary one] a party might be convicted and sentenced to be hanged on wholly insuffi-
cient evidence; yet if the prosecutor has got an order for the jury to view the place, and
they have done so, it would be impossible to get the judgment reversed, no matter how
insufficient the evidence might have been."
This notion has been sanctioned in a few jurisdictions, in forbidding the
inspection of a person's appearance as evidence of his age,^ and of a child's
features as evidence of another's paternity,^ and also in forbidding the resort
to a view by a jury.^ But the notion has now been generally repudiated,
even in the jurisdictions where it once obtained,* and the propriety of inspec-
tion or view by the tribunal is regarded as not to be impugned because of this
consideration.^
(apparently de laring all views unlawful, be- N. W. 489 (inspection of an infant to determine
fause of the statutory abolition of " vouchers, resemblance, excluded partly because of no pro-
views, essoiuns," and wagers of battle and of bative value, partly because "this Court upon
law, Pasch. Dig. art. 1468 ; a curious misunder- appeal could not reverse their verdict," since not
standing of the meaning of the "view" there all the evidence would be presented on appeal),
referred to). 3 1875, Smith v. State, 42 Tex. 444, 448
^ 1867, Stephenson i'. State, 28 Ind. 272 (age (disapproving a view of a sow, partly on this
of a defendant as over 14 ; the personal appear- ground).
ance of the defendant not to be considered be- * Except perhaps in Wisconsin,
cause "it will, so far as that issuable fact is " 1875, Wright v. Carpenter, 49 Cal. 607,
involved, deprive the defendant of this right 610 (but the jury are not to "take into con-
of review"); 1876, Ihinger «. State, 53 id. 251, sideration the result of their own examination,"
253 (selling liquor to a minor; the appearance on the theory of Clo.se i'. Samm, infra) ; 1872,
of the alleged minor not to be considered ; Jeffersonville M. & I. R. Co. v. Bow-en, 40 Ind.
"there is no mode of putting such evidence 545, 547 (injury on a railro.ad track; the jury
upon the record in order that it may be passed had viewed the premises ; the sufficiency of the
upon by an appellate tribunal"); 1878, Robin- evidence considered, and the jury's in.spectiou
ius V. State, 63 id. 235, 237 (selling liquor to a treated as proper, but not a source of evidence,
minor; same); 1878, Swigart v. State, 64 id. following the reasoning of Close k. Samni, Iowa,
598 (same); 1885, Bird v. State, 104 id. 385, infra; overruling Evansville T. & C. G. R. Co.
.389, 3 N. E. 827 (same); 1891, McGuire v. u.' Cochran, 1858, 10 Ind. 560); 1872, Gagg v.
State, — Tex.App.— , 15 S. W. 917 (know- Vetter, 41 id. 228, 258 (fire attributed to
ingly selling liquor to a minor; the buyer's sparks from a brewery chimney; the premises
appearance forbidden to be considered by the had been viewed by the jury ; same ruling) •
jury, partly on this ground). 1875, Heady v. Turnpike Co., 52 id. 117, 124
2 1885, Hanawalt v. State, 64 Wis. 84, 87, 24 (view is not " part of the evidence in the case ") •
1069
§ 1168 REAL EVIDENCE. [Chap. XXXVII
(2) But unfortunately the reasons upon which this repudiation has pro-
ceeded have not always been sound ones, — have indeed sometimes been
dangerous ami misleading. The correct reasons for this repudiation are
sufficiently apparent. In the first place, the principle which allows a supe-
rior court to review the evidence given at a trial below does not necessarily
imply that the evidence is to be stated and incorporated in its entirety but
only so far as it is feasible to do so ; and, so far as legislation has introduced
new modes of revision by superior courts, it cannot be supposed to have in-
tended by implication to change established modes of trial.® In the second
place, there is not the slightest precedent for such a novel suggestion ; for it
was never made at the bar until 1834 and never judicially recognized until
1858, and yet jury-views and other modes of autoptic preference had long
been established methods in procedure. In the third place, the Courts had
already established a much more radical doctrine to the contrary effect,
namely, that a verdict objected to as against the weight of evidence might
nevertheless be supported on appeal for the very reason that the jury might
have proceeded in part upon knowledge obtained at a view which could not
be fully laid before the superior court :
1810, Shaw, C. J., in Davis v. Jenny, 1 Mete. 222 (denying the proposition that a Court
cannot set aside a verdict based upon inspection) : " The authority of the Court to set
aside a verdict does not depend upon the nature and quality of the evidence upon which
the jury have found it; though it often happens that the character of the evidence is such
as to afford the jury mucli better means of judging of it than the Court can have of re-
viewing it, — as where much depends upon localities and the jury have a view, or upon
minute circumstances and there is conflicting testimony, or upon the credit of a witness
who is strongly impeached by one set of witnesses and supported by another. In all such
cases the consideration that the jury had means of judging of facts which cannot after-
18S0, Indianapolis w Scott, 72 id. 196, 204 (same; own knowledge, and how far npon the testi-
jury's testing a rotten sleeper viewed, held not mony offered by the parties " ; but Shaw, C. J ,
misconduct) ; 1885, Slialar v. State, 105 id. 289, repudiated this and referred to "knowledge ac-
29.3, 4 N. E. 870 (principle of Bowen's case re- quired by the view " as proper) ; 1885. State r.
affirmed) ; 1887, Louisville N. A. & C. R. Co. «. Stair, 87 Mo. 268, 272 (bloodstained clothing of
Wood, 113 id. 544, 550, 14 N. E. 572, 16 N. E. the deceased, identified by witnesses, shown to
197 (general doctrine of Cochran's case repudi- the jury; "the argument that these garments
ated, except perhaps where inspection is the were not and could not be filed with the bill of
chief source of evidence in the case) ; 1869, exceptions, and tlierefore shoiild not have been
Close D Samm, 27 la. 503, 507 (trespass by examined by the jurors, is no reason for ex-
flowage upon land; a jury's view allowed; cln.ling them; the descriptive evidence is suf-
their view held not a source of evidence, so as fiuient to enable this Court to pass upon the
to prevent a ruling as to the sufficiency of the competency and relevancy of the evidence ") ;
evidence in the record; see quotation post); 1S83, Hart v. State, 15" Tex App. 202, 228
1892, Morrison «. 11. Co., 84 id. 663, 51 N. W. (repudiating the doctrine entirely; see qnota-
75 ; 1889, Topeka v. Martiueau, 42 Kan. 387, 22 tion post).
Pac. 419 (instruction to consider "the result ^ 1869. Wright, J, diss., in Close v. Samm,
of your observation in connection with the 27 la. 503, 513 ("The Legislature doubtless
evidence," approved ; tlieory that the results considered this very difficulty, and yet deemed
cannot be considered on appeal, repudiated ; it better to give this power (the Court judging
see quotation post) ; 18U, Parks i>. Boston, 15 when it should be exercised), even though the
Pick. 198, 200, 209 (Messrs. Hand and Dexter difficulty of knowing upon what the verdict was
raised the point that if the knowledge acquired based, than to withhold it entirely"). Corn-
by a view were to be used, "a new trial could pare the following: 1899, Bridgewater v. State,
never be granted on the ground that the verdict 153 Ind. 560, 55 N. E. 737 (reproving the .at-
was against the weight of the evidence in cases tachraent of knives, etc , to the bill of exccp-
where a view was had; for it would be impos- tions on appeal),
sible to say how far the jury acted upon their
1370
§§ 1150-1168] JURY'S VIEW. § 1168
wards be laid before the Court in their complete strength and fulness will always have a
prevailing and often a decisive influence upon the judgment of the Court in support of
the verdict."'
Finally, the sanction of such a doctrine as the present one would lead to the
absurd and impracticable consequence that autoptic preference, as a source
of the jury's belief, should be radically prohibited. The following passage
expounds the correct reasons for repudiating such a doctrine:
1883, While, P. J., in Hart v. State, 15 Tex. App. 202, 228: « [One of the objections to
exhibiting the deceased's clothing was] ' because such testimony cannot be made a part of
the record herein.' ... Is it true, or is it a standai-d test, or even a test at all, that the
legality and admissibility of evidence depends upon the fact that it must be such as can
and must be incorporated into and brought up by the record? We know of no such rule
announced by any standard work on the law of evidence. If it be true, then the identi-
fication, the pointing out of a defendant in Court, is not legitimate or admissible because
he cannot be sent up here with the record. A witness' countenance, tone of voice, mode
and manner of expression, and general demeanor on the stand, oftentimes influence the
jury as much in estimating the weight they give and attach to his testimony as the words
he utters, and yet they cannot be sent up with the record. . . . How they have impressed
the jury and influenced their verdict are facts known only to themselves, facts which must
necessarily be unknown to the defendant, to the trial Court, and to this Court, save as
they may be manifested in the verdict, because they cannot be written in the record ; and
yet they are and always have been the best and most legitimate sources from which a coi--
rect estimate of the value of oral evidence is drawn. . . . The doubting Thomas of Scrip-
ture could not be made to believe that the j'esurrected Saviour was indeed the dead and
crucified Jesus, until permitted to put his fingers into the nail holes shown in the holy
hands and thrust his own hand into the wounded side whence the spear of the Roman sol-
dier let out the life-blood of the dying Lord. In a recent case in England,' not at present
accessible, (he defendant was on trial for selling grain by a false measure; to solve the
question of his guilt, the Court had the supposed false measure and a standard measure
brought before the jury and the grain actually measured from the one into the other in
the presence of the jury ; will any one pretend to say that this was not the best and most
satisfactory evidence to the minds of the jury which could possibly be adduced of the fact
in issue before them? And could not the fact be sufficiently stated in the record so as to
apprise this Court fully of the nature and character of the evidence and mode of proof upon
which the verdict was founded? Clearly so, we think."
(3) But another mode, in favor with a few Courts, of repudiating the
doctrine in question, is to invoke the theory that the jury's inspectiun is not
an obtaining of evidence, and to hold that the bill of exceptions may therefore
be said to contain all the "evidence" notwithstanding the jury has had a
view:
1869, Cole, J., in Close v. Samm, 27 la. 508 (the trial Court had instructed the jury to
find "from all the evidence in the case, and from all the facts and circumstances disclosed
on the trial, including your personal examination"; the Supreme Court discussed the
' Accord: 1670, Vauglian, C. J., in Bushel's Co. v. Eastern R. Co., 6 All. 98 ; 1882, Peoria &
Case, 6 How. St. Tr. 999, 1011, Vaughau 1.35 F. R. Co. v. Barnum, 107 111. 160; 1890, Sliep-
(" The evidence which the jury have of the fact herd o. Camden, 82 Me. 535, 537, 20 Atl. 91 •
is much other than that [deposed in Court] ; 1885, Omaha & R. V. R. Co. w. Walker, \i
for . . 4. In many cases the jury are to have Nebr. 432, 23 N. W. 348.
view necessarily, in many by consent, for their 8 The learned judge possibly had in mind the
better information; to this evidence likewise case of Chenie w. Watsou (cited pos«, § 1181) be-
the judge is a stranger"); 1863, Fitchburg B. fore Lord Kenyon, in 1797.
VOL. II.— 24 1371
§ 1168 REAL EVIDENCE. [Chap. XXXVII
objection that the jury should not have based their verdict " in any degree upon personal
examination ") : " It seems to us that it [the purpose of the statutory view] was to enable
the jury, by the view of the premises or place, to better understand and comprehend the
testimony of the witnesses respecting the same, and thereby the more intelligently to ap-
ply the testimony to the issues on trial before them, and uot to make them silent witnesses
in the case, burdened with testimony unknown to both parties and in respect to which no
opportunity for cross-examination or correction of error, if any, could be afforded either
party. . . ". [After referring to the additional objection that the bill of exceptions should
contain all the evidence,] It is a general rule, certainly, if not universal, that the jury
must base their verdict upon the evidence delivered to them in open Coui-t, and they may
not take into consideration facts known to theiu personally but outside of the evidence
produced before them in Court ; if a party would avail himself of the facts known to a
juror, he must have him sworn and examined as other witnesses."
To this mode of evasion there are two conclusive answers. The first is that,
if this theory were sound, then no valid bill of exceptions of any trial has
ever been drawn up, since the demeanor of witnesses on the stand is always
some evidence on the point of their credit ^ and no bill of exceptions has ever
been able to embody this evidence with ink and paper. The second is that
it is wholly incorrect in principle to suppose that an autoptic inspection by
the tribunal does not supply it with evidence ; for, although that which is
received is neither testimonial nor circumstantial evidence, nevertheless it is"
an even more direct and satisfactory source of proof, whether it be termed
" evidence " or not.^" The suggestion that, in a view or any other mode of
inspection by the jury, they are merely " enabled better to comprehend the
testimony," and do not consult au additional source of knowledge, can be
easily shown to be simply not correct in fact. The following passages well
expose the fallacy of the notion that the jury's view is not an obtaining of
evidence, in the sense of consulting additional sources of knowledge :
1884, Lyon, J., in Washburn v. R. Co., 59 Wis. 364, 368, 18 F. W. 328 : " The object
of a view is to acquaint the jury with the physical situation, conditions, and surroundings
of the thing seen. What they see they know absolutely. . . . For example, if a viitness
testify that a farm is hilly and rugged, when the view has disclosed to the jury, and to
every juror alike, that it is level and smooth, or if a witness testify that a given building
was burned before the view, and the view discloses that it had not been burned, no con-
trary testimony of witnesses on the stand is needed to authorize the jury to find the fact
as it is, in disregard of testimony given in court."
1898, Bissell, J., in Denver T. Sf F. W. R. Co. v. Ditcli Co., 11 Colo. App. 41, 52 Pac.
224 : " We are very frank to say we do not appreciate the refined distinction which is
drawn by some of the authorities, wherein it is held that the jury are not at liberty to re-
gard what they have seen as evidence in the case, but must utterly reject it otherwise than
as an aid to the understanding of the testimony offered. The folly of it is apparent from
the constitution of the human mind, and the well-understood processes by which juries
arrive at conclusions. Many illustrations which forcibly express these ideas may be found
in the cases. If a dozen witnesses should testify that there was no window on the north
side of the house from which one man had sworn that he viewed the affray, and the jurors
on view should see the window, all lawyers would know that it would be futile, on the argu-
ment, to insist to the jury that their verdict must be based on the non-existence of the
window since the point had been sustained by a vast preponderance in the number of
9 Ante, § 946. " Ante, § 1150.
1372
§§ 1150-1168] JURY'S VIEW. § 1168
witnesses. In this mining community, lawyers who have had to do with litigations over
lode claims, where the controversy respects the existence of an apfex or the continuity of
a vein, will understand that if a jury descended to inspect a mine, and the jury had on it
a half-dozen miners, it would be folly to expect a verdict if those workmen, from their
inspection, concluded that the crevice was a vein, and that it was or was not continuous.
If the miners believed from their inspection that the crevice was a thing that they would
follow, though a hundred men might swear they could not obtain an assay from it, and a
hundred professional witnesses might swear that the vein was not continuous, yet, if these
miners believed that the stained seam was a thing which they would have followed in the
development of the property had they owned it, their verdict would be that it was a vein,
aiid was continuous, providing the subsequent development showed that at the end of it
there was a large body of valuable ore. We are therefore quite unable to appreciate
the reasoning by which Courts hold that a charge of this description is necessarily
erroneous [namely, that the jury are to determine according to the evidence and their
observations]."
1898, Henshaw, J., in People-^. Milner, 122 Cal. 171, 54 Pac. 833: "[That the jury
receive evidence] certainly is the case. If, for example, it were material to determine
whether a hole in the panel of a door was or was not caused by a bullet, it would be per-
missible to remove the panel, to bring it into the court room, offer and have it received
in evidence, and submit it to the inspection of the jury. It would not for a moment be
doubted, if this pi'ocedure were adopted, but that the physical object was evidence in the
case. If, instead of so doing, the Court should direct that the place where the material
fact occurred should be viewed by the jury, and the jury should be conducted to the spot,
and the panel of the door pointed out to them, would it be any the less the reception of
evidence because obtained in this way ? Certainly not."
The theory that a jury's view does not involve the obtaining of evidence has
come before the Courts for consideration in many cases involving the pro-
priety of instructions to juries and the weight to be accorded by juries to
witnesses' testimony ; and, in spite of some favoring precedents,^! it has in
most jurisdictions been repudiated.!^
^^,See in the following notes some of the as well as other evidence) ; 1883, Peoria & F. R.
earlier cases in California and Penns^ilvaDia, Co. w. Barnum, 107 id. 160 (jury's "personal ob-
and the latest cases in Illinois, Minnesota, and servation " a source of evidence) ; 1884, Culbert-
Wisconsin. _ eon & B. Pacliing Co. v. Chicago, 111 id. 651, 655
" The following list includes ca.ses on both (jury may " talcs into account such facts as they
sides; the Indiana and luwa cases have been learned by viewing the property"); 1891,
placed supra, par. (1) : Cal. : 1875, Wright v. Springer v. Chicago (quoted ante, § 1162) ; 1892,
Carpenter, 49 Cal. 607 (the jury are not to con- Maywood Co. o. Maywood, 140 id. 216, 223, 29
sider the result of tlieir inspection as evidence) ; N. E. 704 (an instruction to consider "such facts
1886, People v. Bush, 68 id. 623,630, 10 Pac. as they learned by the view, the same being in the
1 69 (" It is impossible that a jury could go and nature of evidence and to be considered as such,"
view such a place without receiving some evi- approved) ; 1893, Peoria G. & C. Co. v. E. Co.,
dence. through one of their senses, viz., that 146 id. 372, 382, 34 N. E. 550 (" in the nature o£
of siglit"); 1898, People v. Milner, 122 id. evidence") ; 1894, Vane k. Evanston, 150 id. 616,
171, 54 Pac. 833 (a view is the obtaining of evi- 621, 37 N. E. 901 (preceding cases distinguished
dence ; Wright v. Carpenter repudiated ; see as involving views under the eminent domain
quotation suprii); Colo.: 1898, Denver T. & P. statute; for common-law views, the purpose is
W. R. ( o. V. Ditch Co. (see quotation supra) ; merelv " to understand and apply the evi-
Conn. : 1899, McGar v. Bristol, 71 Conn. 652, 42 dence'") ; 1898, Rock I. & P. R. Co. v. Brewing
Atl 1000 (after a view of premises by triors, " its Co., 174 .id. 547, 51 N. B. 572 (in eminent do-
situation and state ... are a< fully in evidence main views, " the conclusions drawn by the jury
as if they had been presented to his considerar from their view are in the nature of evidence ")';
tion through descriptions given by witnesses and so the following cases : 1902, Lanquist v.
under oath ") ; III. .- 1874, Peoria A. & D. K. Co. Chicago, 200 id. 69, 65 N. E. 681 ; 1903, East &
V. Sawyer, 71 IlL 361, 364 (" the facts derived W. I. R Co. v. Miller, 201 id. 413, 66 N. E 275 •
from such examination would still have been a Kan.: 1889, Kansas C. & S. R. Co. v. Baird 41
part of the evidence ") ; 1877, Mitchell v. R. Co., Kan. 69, 21 Pac. 227 (a view may furnish evi-
85 id. 566 (view may furnish basis of conclusions dence of the need of crossings) ; 1889, Topeka
1373
§ 1168
JURY'S VIEW.
[Chap. XXXVII
The general result is, then, that it is no objection to the process of autoptic
preference, at a view or in court, that the bill of exceptions cannot be made
to transcribe faithfully the sources of belief thus laid before the jury ; but
that there are sound reasons for repudiating this objection without a resort
to the unsound theory that a view, or any other form of autoptic preference,
does not involve the consideration of evidence by the jury.
V. Martineau (cited supra, par. 1 ) ; 1893, Chicago
K. & W. R. Co. V. Parsons, 51 id. 408, 410, 32
Pac. 1083 (a view is " at most but one means of
bringing evidence before them, letting the thing
itself testify"); Me.: 1890, Shepherd v. Cam-
den, 82 Me. 535, 20 Atl. 91 (jury have "a right
to take into consideration what they saw ") ;
Mass. ; 1883, Tally w. K. Co., 134 Mass. 499, 503
(objection that a ruling that the plaintiff had
not offeted sufficient evidence could not be made
after a view, repudiated, because such a ruling
should take iuto consideration the contingency
that knowledge was obtained at a view ; " in
mo.st cases of a view, a jury must of necessity
acquire a certain amount of information, which
they may properly treat as evidence in the
case ") ; 1890, Menard u. R. Co , 150 id. 386, 388,
23 N. E. 214 (by a view the jury learned that a
flagman had been placed at a crossing since the
accident ; whether this could be " treated as a
part of the evidence," for purposes of comment
in argument, not decided) ; Minn.: 1894, Schultz
V. Bower, 57 Minn. 493, 59 N. W. 631 (remov-
ing lateral support ; the view is merely to apply
the evidence) ; 1901, Northwestern M. L. I. Co.
V. Sun Ins. Office, 85 id. 65, 88 N. W. 272 (the
jury is not to use tlie knowledge obtained at a
view) ; Nebr.: 1900, Chicago, Rock I. & P. R.
Co. V. Farwell, 59 Nebr. 544, 81 N. W. 443 (a
view "is evidence") ; N. H.: 1861, Dewey v.
Williams, 43 N. H. 384, 387 (not clear);
N. J.: 1902, DeGray v. R. Co., 68 N. J. L.
454, 53 Atl. 200 (Close v. Samm, la., followed;
jurors' view of telephone structures apparently
held not to furnish evidence) ; Pa. : 1890,
I'lower V. R. Co., 132 Pa. 524, 19 Atl. 274
(a view merely illustrates the testimony ; said
merely in cautioning the jury not to repudiate
the testimony entirely) ; 1891, Hoffman v.
R. Co., 143 id. 503, 22 Atl. 823 (approving
the preceding case) ; 1899, Shano v. Bridge
Co., 189 id. 245, 42 Atl. 128 (eminent domain;
the jury may act upon " what they saw and
knew"); U. S.: 1898, U. S. v. Seufert B. Co.,
87 I'ed. 35, 38 (eminent domain ; view may fur-
nish evidence); Wash.: 1902, Seattle & M. K.
Co. V. Roeder, 30 Wash. 244, 70 Pac. 498 (the
jury " are told that, where there is a conflict in
the testimony, they may resort to tlie evidence
of th§ir senses on the view to determine the
truth ; and this, we think, is correct ") ; W. Va. :
1894, Fox i>. B. & 0. R. Co., 34 W. Va. 466, 12
S. E. 757 (the view is to " better understand the
evidence," but the jury may take into considera-
tion the impressions gained by sight of the
place) ; 1902, State v. Henry, 51 id. 283, 41 S. E.
439 (a reque.st that the jury " are not to take into
consideration anything they saw or any impres-
sion they received at the view," held not improp-
erly refused) ; Wis. : 1883, Neilson v. R. Co., 58
Wis. 516, 523, 17 N. W. 310 (jury's view of prem-
ises allowed to be taken as source of knowledge) ;
1884, Washburn v. R. Co., 59 id. 364, 368, 18
N. W. 328 (view may be taken by jury as a
source of knowledjfe) ; 1885, Johnson v. Boor-
man, 63 id. 268, 275 ( Washburn v. R. Co. ap-
proved) ; Munkwitz v. R. Co., 64 id. 403, 407, 25
N. W. 438 (view is to " assist in weighing and
applying the evidence ") ; 1886, Seefeld v. R. Co.,
67 id. 96, 100, 29 N. W. 904 (view is to "enable
the jury to determine the weight of conflicting
testimony"); 1887, Sasse v. State, 68 id. 530,
537, 32 N. W. 849 (an instruction " what they
saw legally becomes a part of the evidence in the
case," disapproved ; the Washburn case misun-
der,stood and practically repudiated).
Distinguish the following: 1901, London
G. 0. Co. 0. Lavell, 1 Ch. 135 (judge's inspection
of omnibuses, upon the issue whether the defend-
ant's was such an imitation of the plaintifi's as
to deceive customers, held insufficient, without
other evidence).
1374
1171-1175] BOOK I, PART II. § 1171
PART II.
KULES OF AUXILIAEY PEOBATIVE POLICY.
INTRODUCTION.
GENEBAL SURVEY OF AUXILIARY RULES.
CHAPTER XXXVIII.
§ 1171. Nature of the Rules.
§ 1172. Summary of the Rules.
§1173. "Best Evidence" Principle; His-
tory of the Phrase.
§ 1174. Same : Scope of the Phrase.
§ 1175. Primary and Secondary Evidence.
§ 1171. Nature of the Rules. The subject of Eelevancy, with which the
preceding Part is concerned, is primarily one of logic, of the sufficiency
of probative value, of the propriety of an inference. Taking the peculiar
point of view of an investigation by judge and jury, the law asks whether a
given fact, offered as the basis of an inference to a given proposition, is worth
being admitted for the jury's consideration {ante, § 12). Whether the de-
fective operation of another machine is probative to show the condition of
the machine in question ; whether the testimony of a person who was insane
last January is admissible to show the existence of the fact thus asserted, —
these are types of the questions with which the principles of Eelevancy are
concerned. It is true that, in examining those principles, it is often prac-
tically convenient (as noted ante, § 42) to treat at the same time the effect of
certain principles of Auxiliary Policy properly belonging here, in Part II,
because the combined operation of the two sets of principles has often to be
considered at one time in order to ascertain the resultant working rule. But
this is merely on grounds of practical convenience in exposition. It remains
true that the principles of Eelevancy, as forming by themselves a separate
set of rules, are concerned merely with the question whether a given fact is
under any circumstances to be regarded as furnishing a sufficiently probative
inference to be worth considering by the jury.
Assume, then, that these principles of relevancy have been satisfied, and
that certain facts, so far as concerns their logical bearing and probative
value, have passed the gauntlet and are evidentially worthy to be considered.
There still may remain for them another gauntlet to pass. They may be
amenable to certain other rules, applicable to specific classes of evidential
material, and designed to strengthen here and there the evidential fabric
and to secure it against dangers and weaknesses pointed out by experience.
These auxiliary rules have nothing to do with relevancy as such, i. e. regarded
1375
§ 1171 AUXILIARY PROBATIVE RULES. [Chap. XXXVIII
as the minimum requirement for admissibility. They assume relevancy, and
then under special circumstances apply an extra safeguard designed to meet
special dangers. They may be said to be artificial as distinguished from
natural rules ; that is, they do not, as do the rules of relevancy, simply ana-
lyze the natural process of inference and belief ; but they contrive a specific
safeguard to be applied where experience has shown it desirable. Moreover,
their operation is on lines distinct from those of relevancy ; for the same
fact, though it is always relevant to prove the same proposition, may or
may not come under the ban of one of these auxiliary rules, according to cir-
cumstances having no connection with relevancy. For example, the circum-
stance that a person planned to execute a will of a certain tenor is regarded
as relevant to show that a lost will executed by him was of that tenor ; yet,
by a certain rule of preference, the document itself must be produced, and
only if it is unavailable may this circumstantial evidence be used. Again,
by another rule, sometimes laid down, the circumstantial evidence alone will
in such cases not be regarded ; it first must be quantitatively strengthened
by the testimony of one who has read the document. Again, the assertion
of a father of a family as to the age of his child is a fact always relevant (in
the sense that the assertor is a qualified witness) to show the child's age ;
nevertheless, it will, under some circumstances, not be received unless it is
made on the stand, under oath and subject to cross-examination. Again, the
testimony of any person who has seen a testator sign a will is relevant, in
the sense that the person is a qualified witness ; yet, if there is another per-
son available who has attested the will by his signature, the latter must first
be called to the stand before the former can be listened to.
These rules of Auxiliary Policy, then, form a set of rules over and above
and independent of the rules depending on the principles of Eelevancy.
They are distinguished from the rules of Relevancy (Part I) in resting not
upon an analysis of the process of inference, but upon expedients designed to
avoid special dangers irrespective of the nature of the inference and affecting
in common various kinds of evidence resting upon various inferences. They
are distinguished from the rules of Extrinsic Policy (Part III) in having for
their purpose the strengthening of the mass of evidence and in avoiding proba-
tive dangers, and not the avoidance of collateral disadvantages unconnected
with the object of securing good evidence. They include the most character-
istic features of the Anglo-American law of evidence ; and they are, on the
whole, and apart from minor abuses, justified by experience as a valuable
part of the system.
§ 1172. Summary of the Rules. These rules may best be grouped and
analyzed, not according to their respective policies — which may be. complex
and varied — but according to the actual operation of the rule — the result
which the rule produces in its application. For this purpose the rules seem
divisible into five great classes, which may be termed, respectively, Preferen-
tial, Analytic (or Scrutinative), Prophylactic, Simplificative, and Quantitative
(or Synthetic).
1376
§§ 1171-1175] GENERAL SURVEY. § 1172
1. The nature of the Preferential rules is that they prefer one kind of evi-
dence to another. This they may do in one of two ways : (a) they may
require one kind of evidence to be brought in before any other can be resorted
to, and may refuse provisionally to listen to the latter until tlie former is
procured or is shown to be inaccessible ; or (b) they may prefer one kind of
evidence absolutely, i. «. they may require its production, and, so long as it is
available, consider no other kind of evidence, even after the preferred kind
has been supplied. With reference to the kinds of evidence thus preferred,
these rules are of the following scope : (1) There is a rule of preference for
the inspection of the thing itself, in place of any evidence, either circumstan-
tial or testimonial, about the thing ; this is the rule of Primariness, as some-
times termed (treated post, §§ 1177-1282), and concerns itself solely with
documents. The preference here is solely of the conditional sort above-named,
and not of the absolute sOrt. The questions that here arise are, in general,
to what objects this rule of preference applies, under what conditions — the
object ceasing to be available for production — the preference ceases, and to
what exceptions the rule is subject. (2) There is, next, a preference as be-
tween various kinds of testimonial evidence. One kind of witness may, for
various reasons, be required to be called in preference to another. Here the
two kinds of preference, conditional and absolute', are both found, (a) The
chief example of the former sort is the rule requiring an attesting witness to
be called ; the chief questions that here arise concern the kind of document
to which the rule appUes ; the number of witnesses that must be called ; the
conditions of non-availability of the attesting witnesses which dispense with
calling them ; if they are unavailable, what the next grade or step of testi-
mony should be, — the maker's handwriting or the attesting witness' or
both ; whether an exception exists where the opponent admits the document's
execution, or claims under it, or where it is an ancient document or a registered
deed, and the like. Other examples of this kind of rule are sometimes found
in requirements that the eye-witnesses to a crime must all be called, or that
the owner of stolen goods must be called to prove their loss, or that the
alleged writer of a document must be called to identify it. (6) Of the abso-
lute preference of one witness above another, the chief example is the rule
preferring a magistrate's official report of testimony delivered before him.
The preference here, when held to be absolute, is so in the sense that this
report is not allowed to be shown erroneous, i. e. the magistrate's report is
preferred so as to stand against that of any other person whatever. Another
example of such a rule is the preference given to the enrolment of a statute as
certified to by the presiding officers of the Legislature, the Governor, and
the Secretary of State ; where this doctrine obtains, these persons' testimony
is made to stand against tbat of any other persons.
2. The nature of the Analytic (or Scrutinative) rules is to subject a certain
kind of evidence to tests calculated to exhibit and expose its possible weak-
nesses and to make clear to the tribunal the precise value that it deserves.
There is in effect but one rule of this sort, the Hearsay rule. By this rule,
1377
§ 1172 AUXILIARY PROBATIVE RULES. [Chap. XXXVIH
two such tests or securities for trustworthiness are required to be applied to
testimonial evidence, — the tests of cross-examination and confrontation ; but
the second is entirely subsidiary to the first, so that the essential purpose of
this rule is that which is attained by bringing the witness to the stand and
analyzing his assertions by the potent resolvent of cross-examination. The
chief questions that arise in connection with this rule are whether the rule
has in a given case been satisfied by adequate opportunity for cross-examina-
tion, whether certain classes of testimonial assertions are to be received ex-
ceptionally without undergoing these tests, and where the line is to be drawn
between utterances to which the rule does and does not apply.
3. The nature of the Prophylactic rules is to endeavor by artificial expe-
dients to remove, before the evidence is introduced, such sources of danger
and distrust as experience may have shown to lurk within it. These are
thus contrasted, on the one hand, with the Analytic rules, which achieve
their purpose by exposing the weaknesses to plain view, and, on the other
hand, with the Quantitative rules, which effect their object by cumulating a
quantity of evidence sufficient to outweigh its individual weaknesses. The
Prophylactic rules employ five expedients, — the oath, the perjury-penalty,
publicity of proceedings, separation of witnesses, and prior notice of evidence
to the opponent. Their common aim is by these expedients to eliminate in
advance the dangers which are inherent in certain kinds of evidence.
4. The nature of the Simplijicative rules is to reject a certain kind of
evidence which though in itself relevant and trustworthy is likely under cer-
tain conditions to confuse the process of proof. These differ from the other
four groups, as to practical effect, in that they do not accept the evidence
when tested or strengthened by some artificial expedient — such as cross-
examination, or oath, or numbers of witnesses — but simply exclude it, either
absolutely or conditionally. The chief rules are those which exclude (1) evi-
dence offered at an improper time, (2) testimony of an excessive number of
witnesses, or of particular persons (such as a judge or counsel) likely to be
over-influential, or of opinion, when superfluous and likely to be abused,
(3) circumstantial evidence (such as an accused's moral character) likely to
cause undue prejudice.
5. The nature of the Quantitative (or Synthetic) rules is that in given
cases they require certain kinds of evidence to be associated with other evi-
dence before the case will be allowed to go to the jury. There are three
general classes of such rules. (1) A rule may prescribe a definite number of
witnesses as the minimum. On a charge of treason, for example, two wit-
nesses are almost universally required; and, on an issue of testamentary
execution, two witnesses, or more, are generally required. (2) A rule may
prescribe that in given cases one witness is not sufficient unless additionally
there is circumstantial evidence of a specified sort. It is sometimes required,
for example, that an accomplice's testimony must be thus corroborated, and
that the testimony of a woman said to have been seduced or raped must be
thus corroborated. (3) A rule may prescribe that one kind of circumstantial
1378
§§1171-1175] "BEST EVIDENCE" .RULE. §1173
evidence shall on certain issues be insufficient without other circumstantial
evidence ; for example, for the execution of an ancient document not testified
to by witnesses, the circumstance of age alone may be held insufficient with-
out the accompanying circumstances of appropriate custody, long possession,
or the like ; or the exchange of marriage consent may be regarded in certain
issues as not sufficiently evidenced by the circumstance of cohabitation.
These quantitative rules are in our system of law relatively few and
unimportant.
There is no one term traditionally given to this group of auxiliary rules,
here termed rules of Auxiliary Probative Policy ; but it is necessary now to
examine the scope of a phrase which has long been used as covering some of
them, — the " best evidence " principle.
§ 1173. "Best Evidence" Principle; History of the Phrase. The history
of the phrase has been traced, once for all and without the possibility of
better statement, by Professor Thayer : ^
" The phrase first appears in our cases, I believe, after the English revolution, in
C. J. Holt's time. That is an early period for anything like a rule of evidence, properly
so-called. Such rules could not well come into prominence, or be much insisted on, while
the jury were allowed to find verdicts on their own knowledge ; and that power of the
jury had been elaborately asserted as a leading ground of the judgment in Bushell's Case
in 1670, by Vaughan, C. J., speaking for the court. Finding the rule, then, at the end
of the seventeenth century, let us trace it down, not too minutely. In the year 1699-1700,
in Ford v. Hopkins, in allowing a goldsmith's note as evidence against a stranger of the
fact that the goldsmith had received money. Holt, C. J., say that they must take notice
of the usages of trade ; ' the best proof that the nature of the thing will afiord is only
required.' This is the earliest instance of the use of the phrase that I remember. This
or its synonyms is repeatedly used by Holt and others. . . . The phrase now became
familiar, and it continued to hold a great place throughout the eighteenth century. Chief
Baron Gilbert introduced the expression into his book on Evidence, and recognized the
rule which requires of a party the best evidence that he can produce, as the chief rule of
the whole subject. ... It is said in Gilbert's book that ' the first, therefore, and most
signal rule in relation to evidence is this, that a man must have the utmost evidence the
nature of the fact is capable of.' . . . The true meaning of the rule of law that requires
the greatest evidence that the nature of the thing is capable of is this, that no such evi-
dence shall be brought which ex natura rei supposes still a greater evidence behind, in the
parties' own possession and power. Why did he not produce the better evidence ? he
asks ; and he illustrates by what was always the stock example, the case of offering ' a
copy of a deed or will where he ought to produce the original.' . . . The Courts also were
using the same and even more emphatic language. In 1740, Lord Hardwicke declared
that ' the rule of evidence is that the best evidence that the circumstances of the case will
allow must be given. There is no rule of evidence to be laid down in this court but a rea-
sonable one, such as the nature of the thing to be proved will admit of.' And in 1792
Lord Loughborough said ' that all common-law courts ought to proceed upon the general
rule, namely, the best evidence that the nature of the case will admit, I perfectly agree.'
But the great, conspicuous instance in which this doctrine was asserted and applied was
in the famous and historical case of Omyohund v. Barker, in 1744, growing out of the ex-
tension of British commerce in India, where the question was on receiving in an English
court the testimony of a native heathen Hindoo, taken in India, on an oath conformed
to the usages of his religion. In this case, Willes, J., resorted to this rule, and Lord
"• Preliminary Treatise on Evidence, 489 ff.
1379
§ 1173 AUXILIAEY PROBATIVE KTJLES. [Chap. XXXVIH
Hardwicke, sitting as Chancellor, with great emphasis said : ' The judges and sages of
the law have laid it down that there is but one general rule of evidence, the best that the
nature of the case will allow.' . . . An old principle which had served a useful purpose
for the century while rules of evidence had been forming and were being applied, to an
extent never before known, while the practice of granting new trials for the jury's dis-
regard of evidence had been developing, and judicial control over evidence had been
greatly extended, — this old principle, this convenient, rough test, had survived its use-
fulness. A crop of specific rules and exceptions to rules had been sprouting, and harden-
ing into an independent growth. It had become perfectly true that in many cases it
made no difference whatever whether a man offered the best evidence that he could or
not, — the best evidence that the nature of the case admitted, the best ex natura rci, as
some judges said, or the best, rebus sic stantibus, as others said ; none the less it was, in
many cases, rejected. ... As regards the main rule of the Best Evidence, in its general
application, the text-books which followed Gilbert, beginning with Peake in 1801, and
continuing with the leading treatises of Phillips in 1814, Starkie in 1824, Greenleaf iu
1842, Taylor in 1848, and Best in 1849 all repeat it. But it is accompanied now with so
many explanations and qualifications as to indicate the need of some simpler and truer
statement, which should exclude any mention of this as a working rule of our system.
Indeed it would probably have dropped naturally out of use long ago, if it had not come
to be a convenient, short description of the rule as to proving the contents of a writing.
Regarded as a general rule, the trouble with it is that it is not true to the facts and does
not hold out in its application ; and in so far as it does apply, it is unnecessary and un-
instructive. It is roughly descriptive of two or three rules which have their own reasons
and their own name and place, and are well enough known without it."
§1174. Same: Scope of the Phrase. The phrase ahout producing the
best evidence, then, is merely a loose and shifting name for various specific
rules. Each of these stands upon its own basis of principle, and each of
them has its own history, independent of the phrase. The rules were not
created by deduction from the principle implied in the phrase; but the
phrase came to be used as descriptive of the rules already existing. What
were these rules?
(1) Chiefly, and usually, the phrase was employed for the rule that the
terms of a document must be proved by the proditction of the document itself,
in preference to evidence about the document {post, §§ 1177-1282). This
is the use that has longest survived, and its illustrations are too numerous to
need citation.
(2) It has also often been employed to designate the Hearsay rule, i. e. the
rule excluding assertions, offered to prove the facts asserted, and made by
persons speaking out of court and not subject to the test of cross-examina-
tion {post, §§ 1360-1810). Testimony on the stand is "best" in the sense
that it is not regarded as trustworthy until it has been subjected to this great
test of cross-examination. This usage has almost disappeared, but it was
once not uncommon.^
(3) It was also much employed to designate the group of rules by which
the testimony of certain classes of witnesses is preferred to that of certain
others. The party is required to resort first to the former, because, for
varying reasons, their testimony is regarded as " best." The rule requiring
1 E. g., 1709, Holt, C. J., in Altham v. Anglesea, 11 Mod. 210.
1380
§§1171-1175] "BEST EVIDENCE" RULE. §1175
the production of an attesting witness {post, §§ 1287-1321) was the chief of
these, and the one most frequently designated by the phrase "best evidence ";2
but this employment of it is also now not often met with.
(4) There are a few scattered instances of the employment of the phrase
in connection with certain principles of substantive law. It is sometimes
said, for example, that the record of a Court is the best evidence of its pro-
ceedings, as compared with other testimony or with the clerk's minutes or
docket entries. But the truth is that the Court's written record is the
proceeding itself, — the only thing which will be regarded as the acta of the
Court ; and so the frequent questions involving this subject are in reality
questions of the law as to what constitutes for legal purposes a judicial act
{post, § 2450). Again, the notary's or magistrate's record of a married
woman's acknowledgment of consent to her deed, though sometimes spoken
of as the "best evidence," is, as generally treated, not as a preferred testimony
to the act, but as the very judicial act itself and the only thing to which the
law will attach legal consequences.^ Again, the parol-evidence rule in gen-
eral,* though sometimes associated with the phrase " best evidence," ^ is in
truth not a doctrine about preferred testimony, but a doctrine of substantive
law specifying what sorts of transactions are to be treated as acts for the
purpose of giving them legal effect.
(5) Rarely, the phrase is still invoked in odd connections, to justify some
rule already established on definite and independent grounds.^
The sooner the phrase is wholly abandoned, the better."
§ 1175. Primary and Secondary Evidence. The distinction between the
"best evidence" that is first required, and the inferior evidence that is al-
lowed when the "best" is unattainable has come to be designated (apparently
through the currency given it by Mr. Christian's essay and by Mr. Best's
treatise) by the terms Primary and Secondary Evidence. These terms, which
are in themselves not wholly unsatisfactory, are open to serious objections.
One is that the rule requiring the production of documents is not a rule
requiring evidence, but a rule preferring the thing itself {ante, § 1150) to any
evidence about the thing ; what is produced is not " primary evidence," in
any significant sense ; and the term tends to conceal the true nature of the
rule's effect. The other objection is that, so far as the term is understood to
^ E. q., 1796, Grose, J., in Stone's Trial, 25 witness) ; 1866, Doe, J., in Boardman i'. Wood-
How. St. Tr. 1313; 1804, Per curiam, in Jones man, 47 N. H. 120, 145, 146 (applying it to per-
u. Lovell, 1 Cr. C. C. 183. It was used in 1744, by sonal opinion by lay witnesses to sanity) ; 1886,
Lord Hardwicke, L. C, in Omichnnd v. Barker, Vigus v. O'Bannon, 118 111. 334, 348, 8 N. E. 778
1 Atk. 1 , 45, to designate both (2) and (3) supra ; (used in connection with evidence that a party
it was used in 1812, by Kent, C. J., in Coleman had no notice of a fact) ; 1892, Stirling v.
V. Southwick, 9 Johns. 49, to designate both Wagner, 4 Wyo. 5, 31 Fac. 1032 (used in refer-
(1) and (2) supra; and such groupings of two ence to one testifying to a long course o£ busi-
er more of these three rules under the single ness without producing the booKs).
phrase are elsewhere to be met with. ' Professor Thayer's just criticisms (quoted
^ Post, % 1352. ante, § 1173) on the modern futility of the
* Post, § 2400. phrase had long ago been anticipated, in part,
" E. g., Best, C. J., in Strother v. Barr, 5 by the great exposer of legal cant : 1827, Jeremy
Bing. 136, 151 ; Ga. Code 1895, § 5166. Bentham, Rationale of Judicial Evidence, b. IX,
^E. g., 1767, counsel arguing in Morris o. pt. VX, c. IV (Bowring's ed., vol. VII, p. 554).
Miller, 4 Burr. 2057 (proof of marriage by eye-
1381
§1175 "BEST EVIDENCE" RULE. [Chap. XXXVIII
group together all rules exacting a certain quality of evidence when it is
available,^ it groups rules which are in practical tenor essentially distinct, —
for the Hearsay rule and the Attesting Witness rule and the Documentary
Original rule cannot be thus united. On the whole, it should be abandoned
as more likely to confuse than to clarify the application of the various
auxiliary rules which naturally form an independent group in our system
of evidence.^
^ 1892, Lord Esher, M. R., in Lucas v. Wil- ^ The following is an example of this: Cal.
liams,2Q. B. 113, U6 ("'Primary ' and 'second- C. C. P. 1872, §§ 1829,1830 ("Primary evidence
ary' evidence mean this: primary evidence is is that kind of evidence which nnder every
evidence which the law requires to be given first ; possible circumstance affords the greatest cer-
secondary evidence is evidence which may be tainty of the fact in question. Thus, a written
given in the absence of the better evidence instrument is itself the best possible evidence of
which the law requires to be given first, when its existence and contents. Secondary evidence
a proper explanation is given of the absence of is that which is inferior to primary."
that better evidence ").
1382
§§ 1177-1282]
BOOK I, PART II.
§ 1177
Title I : PEEFEKENTIAL KULES.
S0B-TITLE I: PRODUCTION OF DOCUMENTARY ORIGINALS.
CHAPTER XXXIX.
A. Introductory.
§ 1177. History of the Rule.
§ 1178. Analysis of Topics.
B. The Rule itself.
(a) " In proving a Writing,''
§ 1179. Reason of the Rule.
§ 1180. Same : Spurious Reason.
§ 1181. Rule not applicable to ordinary Un-
inscribed Chattels.
§ 1182. Rule as applicable to Inscribed
Chattels.
§ 1183. Rule applicable to all Kinds of
Writings.
(b) "Production must be made,"
§ 1185. "What constitutes Production ; Wit-
ness testifying to a Document not before him.
§ 1186. Production of Original always Allow-
able.
§ 1187. Dispensing with Authentication does
not dispense with Production.
§ 1188. Dispensing with Production does not
dispense with Authentication.
§ 1189. Order of Proof as between Execution,
Loss, and Contents.
§ 1190. Production made, may a Copy also
be offered ?
(c) " Unless it is not feasible, "
§ 1192. General Principle ; Unavailability of
the Original ; Judge and Jury.
§ 1193. (1) Loss or Destruction ; History.
§ 1194. Same : General Tests for Sufficiency
of Proof of Loss ; Trial Court's Discretion.
§ 1195. Same : Specific Teats and Rulings.
§1196. Same: Kinds of Evidence admissible
in proving Loss (Circumstantial, Hearsay, Ad-
missions, Affidavits, etc.).
§ 1197. Same : Discriminations between Loss
and other situations.
§ 1198. Same : Intentional Destruction by
Proponent himself.
§ 1199. (2) Detention by Opponent ; in gen-
eral.
§ 1200. Same : (n) Possession by Opponent ;
What Constitutes Possession.
§ 1201. Same : Mode of Proving Possession ;
Documents sent by Mail.
§ 1202. Same ; (4) Notice to Produce; Gen-
eral Principle.
§ 1203. Same : Rule of Notice not Appli-
cable ; Documents lost, or sent by Mail.
§ 1204. Same : Rule of Notice Satisfied ;
(1) Document present in Court.
§ 1205. Same : Rule of Notice Satisfied ;
(2) Implied Notice in Pleadings ; New Trial ;
Trover, Forgery, etc.
§ 1206. Same : Rule of Notice Satisfied ;
(3) Notice of Notice.
§ 1207. Same : Exceptions to the Rule of
Notice (Fraudulent Suppression by Opponent,
Deed Recorded, W^aiver, Documents out of
Procedure of Notice ; Person,
Same : (6) Person without the Juris-
(4) Physical Impossibility of Re-
Jurisdiction).
§ 1208. Same :
Time, and Tenor.
§ 1209. Same : (c) Failure to Produce ; AVhat
constitutes Non- Production.
§ 1210. Same : Consequences of Non-Produc-
tion for Opponent (Exclusion of Evidence ;
Default ; Inferences).
§ 1211. (3) Detention by Third Person ;
History.
§ 1212. Same : (a) Person within the Juris-
diction.
§ 1213,
diction.
§ 1214,
moval.
§ 1215. (5) Irremovable Judicial Records ;
General Principle (Records, Pleadings, Deposi-
tions, Wills, etc ; Statutory Rules).
§ 1216. Same : Exception for Nul Tiel Record
and Perjury.
§ 1217. Same : Discriminations (Dockets, Cer-
tified Copies, etc.).
§ 1218. (6) Irremovable Official Documents ;
General Principle.
§ 1219. Same : Specific Instances, at Common
Law.
§ 1 220. Same : Specific Instances, under Stat-
utes.
§ 1 221 . Same : Exceptions at Common Law.
§ 1222. Same : Discriminations.
§ 1223. (7) Private Books of Public Impor-
tance (Banks, Coi-porations, Title-Abstracts,
Marriage- Registers, etc.).
§ 1224. (8) Recorded Conveyances ; General
Principle ; Four Forms of Rule.
§ 1225. Same : Statutes and Decisions.
§ 1226. Same : Sundry Consequences of Prin-
ciple of not Producing Recorded Deeds.
§ 1227. Same : Other Principles Discrimi-
nated (Certified Copies, Affidavits, Abstracts).
§ 1228. (9) Appointments to Office.
§ 1229. (10) Illegible Documents.
§ 1230. (11) Voluminous Documents (Ac-
counts, Records, Copyright Infringement ; Ab-
sence of Entries).
1383
§ 1231
DOCUMENT AEY ORIGINALS.
[Chap. XXXIX
(d) " Of the v>riting itself "
§1231. What is the "Original" Writing ?
General Principle.
§ 1232. (1) Duplicates and Counterparts :
Either may be used without producing the
Other.
§ 1233. Same : All Duplicates or Counter-
parts must be accounted for before using
Copies.
§1234. Same: Duplicate Notices, Blotter-
Press Copies, and Priuting-Press Copies, as
Oiiginals.
§ 1235. (2) Copy acted on or dealt with, as
an Original for certain purposes (Bailments,
Admissions, Bank-books, Accounts, etc.).
§ 1236. (3) Copy made an Original by the
Substantive Law applicable ; (a) Telegraphic
Dispatches.
§ 1237. Same : (6) Printed Matter.
§ 1238. Same : (c) Wills and Letters of Ad-
ministration.
§ 1239. Same : (d) Government Land-Grants,
Land-Certificates, and Land-Patents ; Mining
Rights ; Recorded Private Deeds.
§1240. Same: (c) Tax-lists, Ballots, Notarial
Acts, and Snndry Documents.
§ 1241. (4) Records, Accounts, etc., as Exclu-
sive Memorials under the Parol Evidence Rule.
(e) " Whenever the purpose is to establish
its terms."
§ 1242. General Principle ; Facts about a
Document, other than its Terms, are provable
without Production.
§ 1243. Application of the Principle : (1) Oral
Utterances accompanying a Document read or
delivered ; (2) Document as the Subject of
Knowledge or Belief.
§1244. Same: (3) Identity of a Document;
(4) Summary Statement of Tenor or Effect,
Multifarious Document (Record, Register, etc.) ;
Absence of Entries.
§ 1245. Same : (5) Fact of Payment of a
Written Claim ; Receipts.
§ 1246. Same : (6) Fact of Ownership ; (7)
Fact of Tenancy.
§ 1247. Same : (8) Fact of Transfer of Realty,
or (9) of Personalty.
§ 1248. Same : (10) Execution of a Document ;
(11) Sending or Publication of a Demand,
Notice, etc.
§ 1249. Same : (12) Sundry Dealings with
Documents (Convei'sion, Loss, Forgei y, Larceny,
Agency, Partnership, Service of Writ, etc.).
§ 1250. Same : (13) Miscellaneous Instances.
0. Exceptions to the Rule.
§ 1252. (1) "Collateral" Facts; History.
§ 1253. (2) Same : Principle.
§ 1254. Same : Specific Instances.
§ 1255. (2) Party's Admission of Contents ;
Rule in Slatterie v. Pooley.
§ 1256. Same : Forms of the Rule in Various
Jurisdictions ; Deed-Recitals.
§ 1257. Same : Related Rules (Deed- Recitals ;
Oral Disclaimer of Title ; New York Rule).
§ 1258. (3) Witness' Admi3.sion of Contents,
on Voir Dire.
§ 1259. (4) Witness' Admission of Contents,
on Cross-Examiuation ; Rule in The Queen's
Case ; Principle.
§ 1260. Same : Arguments against the Rule.
§ 1261. Same : Details of the Rule.
§ 1262. Same : Rule as applied to Prior State-
ments in Depositions.
§ 1263. Same : Jurisdictions recognizing the
Rule in The Queen's Case.
D. Rules about Secondary Evidexce op
Contents (Copies, Degrees of Evi-
dence, etc.).
§ 1264. In general.
1. Rules preferring one Kind of Testimony
above another (^Degrees of Evidence,
etc.).
§ 1265. General Principle.
§ 1266. Nature of Copy-Te.stimony as dis-
tinguished from ReooUection-Testimouy.
§ 1267. Is a Written Copy the Exclusive
Form of Testimony ? Proof of lost Record,
Will, etc., by Recollection.
§ 1268. Is a Written Cojiy conditionally pre-
ferred to Recollection ? Admissibility of Recol-
lection before showing Copy unavailable.
§1269. Same: (a) Copy preferred for proving
Public Records.
§ 1270. Same : (6) Copy of Record of Convic-
tion, as preferred to Convict's Testimony ou
Cross-Examination.
§ 1271. Same : (c) Copy of Foreign Statutory
Law, as preferred to Recollection-Testimony.
§ 1272. Preferences as between Recollection-
Witnesses.
§ 1273. Preference as between Different Kinds
of Written Copies; Certified and Sworn Copies.
§ 1274. Discriminations against Copy of a
Copv ; (!) in general.
§1275. Same: (2) Specific Rules of Prefer-
ence as to Copy of Copy.
2. Rules as to Qualifications of Witness
to Copy.
§ 1277. In general.
§ 1278. Witness to Copy must have Personal
Knowledge of Original.
§ 1279. Same :"Exception for Copy of Official
Records ; Cross-Reading not necessary.
§ 1280. Sundry Distinctions (Press-copies ;
Witness not the Copyist; Double Testimony;
Impression or Belief ;" Spoliation).
3. Rules depending on the Hearsay Rule
and its Exceptions.
§ 1281. Witness must be called, unless by
Exception to the Hearsay Rule for Certified
Copies, etc.
4. Sundry Principles.
§ 1282. Completeuess of Copy ; Abstracts.
1384
§§ 1177-1282] HISTOEY OF THE RULE. § 1177
A. Introductory.
§ 1177. History of the Rule. The rule requiring the production of writ-
ings before the tribunal is one of the few rules in our system of evidence
that run back earlier than the 1700s. In this rule we find a continuous
existence, under one form or another, as far back as the history of our legal
system takes us. But this history finds the rule in three stages : first, the
stage of a form of trial, — trial by carta or document ; next, the stage of a
rule of pleading in jury trial, — the rule of profert ; and finally the modern
rule of production in evidence. These stages overlap to some extent, but
they are nevertheless distinct.
(1) Trial hy documents. This is the primitive aspect of the rule :
1898, Professor /. B. Thayer, Preliminary Treatise on Evidence, 504 : " The vast
majority of documents used in trials in early times were no doubt of the solemn, con-
stitutive, and dispositive kind, — instruments under seal, records, certificates of high
officials, public registers, and the like. Such documents, if the authenticity of them were
not denied, ' imported verity,' as the phrase was, — fixed liability and determined rights.
As questions were tried by record and by Domesday Book, so they were tried by other
documents. As has been said, ' If a man said he was bound [e. g. by a sealed instru-
ment], he was bound.' ^ Of course, therefore, whoever would use a document of this
character must produce it, just as the Court had to have the jury in court, in trial (or
proof) by jury, and the record, in trial (or proof) by record. As the trial by jury dis-
placed one after another of the older modes of trial, sometimes these were mingled with
it in a confused way ; the procedure about joining attesting witnesses to deeds with the
jury is probably an instance of this, — a combination of the old trial by witnesses with
the newer trial by jury." ^
Thus in the first stage the contrast and competition is between trial before
the judges with deed-witnesses and trial by the jury ; but this contrast tends
to disappear, and the witnesses go out with the jury and investigate the
deed.
(2) Profert in pleading. In the second stage, the contrast is between
documents which are brought into court and formally presented in pleading
to the consideration of the jury, aud documents which are taken into con-
sideration by the jury without this formal presentation. The jury at this
time might freely go upon their own knowledge in reaching a verdict, and
their consideration of documents not presented in court would thus at first
not be an unnatural thing. Nevertheless, certain questions would arise :
1898, Professor Thayer, uU supra, 105: "How-if one who should have pleaded a
charter or record did not plead it, relying, perhaps, on the jury, who might know of it ?
Could they find a matter of record or a deed without having it shown them ? . . . Where
a charter gave a ground of action or defence, it must regularly, as we have said, be
pleaded ; if admitted, it might save going to the assize. If it were not pleaded, one could
not regularly use it in evidence to the jury; but the jury could have it if they wished :
'If a charter be put forward to inform the assize after they are sworn and charged, the
charter will not be received unless they ask for it. To have the charter inform the assize,
1 Holmes, The Common Law, 262. of documentary originals, see Bresslau, Hand-
2 See also Thayer, pp. 13, 97, 104 ff. For the buch der Urkuudenlehre (1889), I, pp. 78-84.
earlier aspects, in Germanic peoples, of the use
1385
§ 1177 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
one should plead on the charter and say thus: "He did not die seised, etc., for he en-
feofEed us by this charter," and then put forward the charter to inform.' = ... In 1339*
ScharshuUe, J., is reported as saying that since a warranty requires a specialty, if it be
not pleaded or put in evidence, a finding of it by the assize shall not be received. . . .
In 1419-20,* in a case much debated, it was held, with some difference of opinion among
the judges, that a jury cannot in a special verdict find a deed which has not been pleaded
or given in evidence; ' Hull [J,] : This deed is only the private intent of a man, which
can be known only by writing ; and if the writing be shown, it may lawfully be avoided
in several ways, as for non-sane memory, being within age, imprisonment, or because it
was made before the ancestor's death, and the like ; things which the party cannot plead
unless he have oyer of the deed and it be shown.' "
This last passage introduces us to the peculiar nature of the second stage,
i. e. the rule of profert, as a doctrine of pleading. The notion that the jury
might go upon private knowledge obtained by them anywhere and every-
where was not substantially repudiated until the 1700s ; but in the mean-
time there were various streams of tendency in that direction. One of
them is here seen in the policy of requiring the important documents to be
presented before the jury in court and forbidding them to be dealt with by
the jury unless so presented. This policy does not come into force suddenly ;
in 1340, the jury found a record, though it was not produced, in part, by
" its being commonly said in the country that there was such a plea and such
a judgment rendered in the said form." ^ But the rule of requiring profert
in court tended to prevail and to become exclusive. Profert must be made
(as the judge above quoted explains) so that the opponent, before the jury
goes out, may have a proper opportunity to plead against the document and
bring his defences to the jury's consideration. It must be remembered that
at the earlier part of this stage the contrast is thus between the jury's use
of a document properly produced to them in court and their use of one
irregularly obtained afterwards. It is not a contrast between the formal
allegation of a document in the pleadings and its later production in evi-
dence ; for the pleadings were oral, the counsel constantly stated facts testi-
monially to the jury, in connection with the true pleading or statement of
the claim,^ and the assertion or claim about a document — the pleading of
it — would not be in essence a separate process from that of showing it,
making profert, putting it in as evidence ; the allegation and the showing
or profert were a part of the same process.
But when the time came that oral pleading disappeared, and the written
pleading became a process entirely separate from that of putting in evidence
at the trial, the doctrine of profert took on a new phase, the distinctive one
which it bears as it appears in our classical common-law treatises on pleading
in the early 1800s, at a time when the doctrine was coming to its end. In
this phase, the rule of profert now required that a certain allegation be made
in the written pleading, namely, after the statement of title by document,
the allegation that the document was hereby prolatum in curiam; and
3 1292; Y. B. 20 & 21 Edw. I, 20. 6 y. B. U Edw. III. 25; cited in Thayer
* Y. B. 13 & 14 Edw. Ill, 80. 109.
» Y. B. 7 H. V. 5, pi. 3. 1 Tliayer, ubi supra, 120.
1386
§§ 1177-1282] HISTOEY OF THE RULE. § 1177
though it was not actually produced and attacked, yet the opponent might
crave oyer (i. e. the " hearing " it read, a relic of the days of oral pleading and
actual instant production) and the proponent's counsel must then send it to
the ojjponent's representative and allow a copy to be taken.^ In this degen-
erate and technical aspect of the rule as merely one of pleading, it need not
further be considered here.® This contrast between the presence and absence
of a purely formal allegation in the pleading has no significance for the
present subject.
(3) The rule of production in evidence. The contrast that remains to
investigate is that between a rule requiring the production in evidence of
writings and the absence of such a rule. It is apparent that, so far as the
rule of profert obtained, and from the earliest time of its obtaining, there
was in effect a rule of evidence on the subject ; i. e. when, in the time of oral
pleadings and evidence-production merged in one process, the rule required
a document to be alleged and shown, this was a rule of evidence at the same
time that it was a rule of pleading. Moreover, even in the later times of
written pleadings, there would be a rule of evidence so far as there was a
rule of pleading ; for if it was necessary in the pleading to allege a fictitious
showing of the document and then to give an actual oyer or sight of it to
the opponent on request, the document would thus be ready for production in
evidence also. The rule of profert in pleading, therefore, virtually enforced
at the same time a rule of production in evidence. There was in practice no
need of discriminating a separate rule of evidence ; and, so far as one was
thought of, it would run on all fours with the rule of pleading. Never-
theless, the law of the early 1800s does present us with a rule of evidence
requiring production, which is by that time so far distinct from the rule of
pleading that its scope is much larger and its requirements therefore more
exacting, while its application is made as of a rule independent of the profert
rule. It is thus worth while to ascertain how this independent growth came
about ; for the pleading-rule of profert had for some time been crystallized in
a teclinical form and was no longer capable of contributing directly to this
expansion of the rule of evidence.
But first it is necessary to notice the limits of the rule of profert, in order
to understand the field that remained to be covered by a rule of evidence
applicable to documents in general. The rule of profert applied (1) in the
first place only to documents under seaP" and to judicial records." (2) Fur-
thermore, it applied in civil cases only ; there thus remained practically the
entire scope of criminal trials to be covered by the rule of evidence. (3) Fi-
nally, the rule was dispensed with — at least by gradual steps, stretching
over two centuries — where the document was lost,^^ or in the hands of the
' Stephen, Pleading, 382, and note 86; the 1828, Tidd's Practice, 9th ed., I, 590; though
author there points out the historical fact that this rule was by the 18003 much relaxed. The
the profert rule was an indirect successor o£ restriction was natural enough, in the light of
trial by charter; so also Thayer, ubi suprn, 504. the history of the seal and its significance for
' It was abolished in England in 1852; St. documents (post, § 2426).
15 & 16 Vict. c. 76, § 55. " Tidd. 587.
1" 1685, Aylesbury v. Harvey, 3 Lev. 204; i' Cases cited posf, § 1193.
VOL. 11.— 25 1387
§ 1177 DOCUMEXTAET ORIGINALS. [Chap. XXXIX
opponent,^^ or, in certain cases, in the hands of a stranger,^* or was only col-
lateral to the main issue ; ^^ but these limitations (except the last) were also
perpetuated in the rule of evidence, so that there are under this head no rad-
ical steps of expansion to be noted.
At what time, then, did the rule of evidence come to include in its scope the
documents exempted by the first two above limitations of the rule of profert ?
(a) In civil eases, it is plain that during the 1500s no independent rule of
evidence yet required the production of writings in general. At this period,
whatever document was not brought in by virtue of the profert rule in
pleading might be established without any production; and this might
sometimes sufB.ce even for a record:
1571, Newis v. Lark, 2 Plowd. 403, 410 a ; assize of disseisin ; part of the evidence
was a recovery suffered; objection, " that the recovery was not shewn under the seal, or
at least the roll of it should have been alledged particularly, so that the Court might see
it, because it is resident in this Court, and they might have informed the jury of it after
they had perused it. . . . But all the other justices [except Harper] argued to the con-
trary. For . . . whatever they [the jury] may take conusance of of themselves may be
given in evidence by parol, or by copies, or by other argument of truth. But in plead-
ing, a man cannot make himself a title in any case by a record without shewing it under
the great seal ; and if a record be pleaded in bar, the party shall have a day to bring it
in under the great seal (as Weston, Justice, said), and so he shall plead it without shew-
ing it. But such day to bring it in shall not be where it is g^ven in evidence, but the
finding by the jury is sufficient, and they may find it of themselvas, although it is not
shewn to them in evidence ; . . . and as they may find it, so by the same reason they
may take instruction concerning it from every circumstance that carries an appearance
of truth."
Somewhere during the 1600s the expansion and independent growth of the
rule of evidence began. It was during this period that the jury came to be
substantially restricted to information furnished them by evidence in court ;i^
and the course of this development would naturally put emphasis on the
production of all writings in court. Thus the early contrast between the
jury's use of a document out of court and their use of it in court would
become unimportant. The contrast would come to be between a document
actually produced by a witness and a document merely spoken of by him ;
and the latter practice would be regarded as irregular. By the beginning of
the 1700s and onwards the rule is found applied to miscellaneous writings ; ^'
although when a formal statement of it is made, the scope is still sometimes
not so broad ;^^ and only by the beginning of the 1800s do the practitioners
" Post, § 1199. (applied to "an original note of hand"); 1750,
" Post, § 1211. Cole V. Gibson, 1 Ves. Sr. 503, 505 (L. C. Hard-
in Post, § 1252. wicke declared that there was no distinction a.s
16 Post, § 2032; Thayer, tibi supra, 122. to "collateral" evidence; "so it is in the case
" 1699, Anon., 1 Ld. Ravm. 731 (rale applied of letters, which are always used by way of
to a note); 1702, Geery v. Hopkins, 2 id. 851 collateral, circumstantial evidence to prove the
(applied to East India Company's cash-book facts"); 1789, Gates v. Winter, 3 T. R. 306-
and transfer-book and a "note of acceptance") ; (license to let horses); 1802, LiWngston i'.
•1724, Downes u. Mooreman, Bnnbury 189 (ap- Rogers, 2 Johns. Cas. 488, 1 Cai. Cas. 27
plied to an agreement between abbot and (letter).
monks); 1734, R. r. Canterbury, Ridgw. temp. i* 1749, Whitfield v. Fansset, 1 Ves. Sr. 387
Hardw. 81 (applied to statutes of All Souls (I>. C. Hardwicke: "The rule is that the best
College) ; 1737, Goodier o. Lake, 1 Atk. 446 evidence must be used that can be had ; first
1388
§§1177-1282] HISTORY OF THE RULE. §1177
who were writers of treatises explicitly state it to cover all kinds of writ-
ings.'8 Moreover, all through the 1700s the rule was understood not to
apply to writings which were only "collateral" to the issue.^" — a limitation
borrowed from the profert tradition ; and this restriction, though it did not
expressly exempt from the rule unsealed writings, must no doubt practically
have had some influence, for many of the miscellaneous writings, particularly
letters, would usually be " collateral " to the issue. Ifevertheless, that
restriction does not account for the recorded practice, as the criminal trials
show.
(&) In criminal cases, the rule appears, as Jate as the 1600s, not to have
been settled upon as broadly applicable, even to records :
1640, Earl of Strafford's Trial, 3 How. St. Tr. 1427, 1432, 1434 ; the prosecution
charged among other things, " 1, that by proclamation he had restrained selling of
flax; 2, that he had ordered the making of yarn of such and such lengths and number
of threads; . . .for proof hereof they brought, 1, the proclamation about the restraint;
2, the warrant for seizing the forfeited goods " ; then, proceeding, they charged the un-
lawful billeting of soldiers on private persons, and " Serjeant Savil was called, who
produced the copy of the warrant upon which he had settled the soldiers " ; then the
defendant objected that this copy was no evidence, " 1, because no transcript, but the
original only, can make faith before the King's Bench in a matter of debt; ... if
copies be at any time received, they are such as are given in upon oath to have been
compared with the originals which are upon record," and that this copy was not only not
so sworn but that the Serjeant was prejudiced to swear in his own exculpation and was
therefore incompetent; "the point seemed exceeding weighty, and in effect was the
ground-work of the whole article [of charge]"; and "after a very hot contestation"
the Lords " resolved that the copy should not be admitted, and desired them to proceed
to other proofs," which consisted of impartial testimony that "he heard of such a war-
rant," and " he hath seen such a warrant under the deputy's hand and seal."
Certain it is that through this whole century no fixed rule of production
existed for the miscellaneous writings that become relevant in a criminal
trial. They were often produced, and often not produced nor accounted
for ; and when they were accounted for, the explanation was made, as likely
as not, only on cross-examination, or to forestall the jury's suspicion or the
judge's criticism, and not as a preliminary required by firm and accepted
rule.^' Under Lord Holt, however, the first quarter of the 1700s finds the
the original ; . . . this extends not only to deeds having charged that the prelates had forged an
bat to records") ; ante 1767, Buller, Nisi Prins, Article of Religion, Archbishop Laud quoted his
253 (deeds). printed copies of the Articles to show the
" 1801, Peake, Evidence, 97 ("Of private Article's presence, and then, since " it is not fit
deeds, or other instruments, the production of concerning ... an Article of such consequence
the original, if in existence, and in the power of ... you should rely upon my copies," produced
the party using it, is always required '^ ; 1814, "from the public records in my ofiice, here
Phillipps, Evidence, 435 ("deeds, agreements, under my officer's hand, who is a public notary,"
etc."),; 1824, Starkie, Evidence, 368 ("deed, a copy of the original Article) ; 1637, Bishop of
agreement, or other private instrument ") ; 1810, Lincoln's Trial, ib. 803, 804 (libellous letters
Swift, Evidence, 25, 31 (uses indifferently the produced); 1642, Duke of Richmond's Trial,
terms "private writings," "deeds," "Instru- 4 id. Ill, 113 (letter produced); 1644, Arch-
ment"). bishop Laud's "Trial, ib. 315, 407 (same); 480
'" Porf, § 1252. (another document not produced; defendant
" 1632, Sherfield's Trial, 3 How. St. Tr. 519, argues, "Why is not this paper produced?
527 (material document, not produced); 1637, Out of all doubt it would [have been], had there
Bastwick's Trial, ib. 711, 743 (Bastwick's book appeared any such thing m it") ; 1647, JMorris'
1389
5 1177
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
rule (coincidently with its progress in civil cases) regularly acknowledged
in practice, and applied to all kinds of writings.^ And yet fifty years later
it was possible to dispute and necessary to decide plainly that there was no
difference in the doctrine for criminal cases.''*^
As a rule of evidence, then, in contrast to a rule of pleading, the last and
largest stage of the modern rule as now universally accepted cannot be said to
have been reached until the 1700s. No doubt its slow development was due
in part to the difficulty of plainly differentiating it from the analogous but
narrowly restricted doctrine of profert in pleading.
§ 1178. Analysis of Topics. In following the application of the rule, it
will be convenient to divide the subject under three heads: B. the rule
of production itself; C. the exceptions; D. the accessory rules applicable
in case of non-production, — these last depending on separate principles of
evidence.
The rule may be stated, for convenience in examining its details and dis'
tinctions, in the following parts :
(a) In proving a writing,
(6) Production must be made,
(c) Unless it is not feasible,
(d) Of the writing itself,
(e) Whenever the purpose is to establish its terms.
Trial, ib 951, 954 (forgery of an act of Parlia-
ment; there was "a view of the said writings,
being by their lordships' orders brought into the
House"); 1649, King Charles' Trial, ib. 99.3,
1102 (warrant to the king's soldiers, produced as
"the same original warrant"); 1653, Faulcon-
er's Trial, 5 id. 323, 347, 349, 353 (perjury in a
deposition ; the original was carefully shown to
have been lost, and was proved by copy ; a
certain petition, material in the proof, was pro-
duced in the original); 16.56, Slingsby's Trial,
ib. 871, 878 (a royal Commission produced and
read ; but a letter, testified to without produc-
tion) ; 1678, Whitebread's Trial, 7 id. 79, 114,
118 (Dates having testified to the contents of a
' register of treasonable doings kept by the de-
fendants, the Court tells the defendant, " You
would do well to show us your book " ; W. :
'■ We never kept any " ; then letters found in
the defendant's papers were produced for the
prosbcution) ; 1679, same set of trials, ib. 311,
349, 355, 359 (testimony to a bill of exchange,
not produced, because it had been taken by
another person ; but some letters were produced ;
L. C. .J. Scroggs : " Then say you, ' It is won-
derful that since they say they saw such and
such letters, they should not produce them ' ?
Why, they did not belong to them"); 1680,
Earl of Stafford's Trial, 7 id. 1293, 1318, 1443
(Dugdale, the informer, testifies to the con-
tents of treasonable papers ; afterwards, he is
asked to explain why they are not prodnced,
and states that they were destroyed); 1681,
Plunket's Trial, 8 id. 447, 458 (documents' con-
tents given witliout accounting for them), 475
{papers produced); 1682, Lord Grey's Trial,
1390
9 id. 127, 147 (important letter of defendant
referred to by plaintiff's witness, but not pro-
duced because she "had it not here") ; 168.5,
Fernley's Trial, II id. 381, 423 (production not
asked for) ; 1696, Charnock's Trial, 12 id. 1377,
1402 (same) ; 1696, Rookwood's Trial, 13 id.
139, 199 (list of names given to witness by de-
fendant; testified to without producing or ac-
counting for it); 1702, Swendsen's Trial, 14 id.
559, 582 (forcible marriage; the terms of the
license testified to without producing it).
22 1696, Vaughan's Trial, 13 How. St. Tr.
485, 519 (Witness: "I had a letter about
it"; L.C.J. Holt: "Where is that letter?";
Witness : " I have it not here " ; L. C. J. :
" Give not an evidence of a letter, without
the letter were here; it ought to have been
produced"); 1704, Tntchin's Trial, 14 id. 1095,
1111, 1114 (libel; certain original papers re-
quired to be accounted for) ; 1717, Francia's
Trial, 15 id. 897, 921 (contents of letter stated
without producing ; but afterwards, on objection,
production offered); 1722, Laver's Trial, 16 id.
93, 170, 176, 182, 186 (contents of letters stated
without producing; afterwards their absence is
accounted for on cross-examination). In 1802,
McNally (on Evidence) writing chiefly for crimi-
nal cases, does not mention the rule.
" 1772, Buller, J., in Att'v-Gen'l v. Le Mer-
chant, 2 T. R. 201 ("The rule of evidence in
both cases [criminal and civil] is the same, that
is, to have the best evidence that is in the power
of the party to produce, which means that, if
the original can possilily be had, it shall be
required"; here, applying it to a letter); 1808,
Com. V. Messinger, 1 Binn. 273, 274, 282.
§§ 1177-1282] GENERAL PRINCIPLE. § 1179
B. The Eule itself.
(a) " In proving a Writing,"
§ 1179. Reason of the Rule. An important question is whether the rule
is restricted to writings, or whether it includes also other chattels or material
objects. It is necessary, for ascertaining this, first to examine the reasons
of policy that have been put forward for the rule in general. These may be
gathered from the following passages :
1611, Dr. Leyjield's Case, 10 Co. Rep. 92 a: "It was resolved that the lessee for years
in the case at bar ought to shew the letters patent made to the lessee for life. For it is
a maxim in the law that . . . altho' he who is privy claims but parcel of the original
estate, yet he ought to shew the original deed to the Court ; and the reason that deeds
being so pleaded shall be shewed to the Court is that to every deed two things are
requisite and necessary ; the one, that it be sufficient in law, and that is called the legal
part, because the judgment of that belong's to the judges of the law ; the other concerns
matter of fact, sc. if it be sealed and delivered as a deed, and the trial thereof belongs
to the country. And therefore every deed ought to approve itself, and to be proved by
others, — approve itself upon its shewing forth to the Court in two manners : 1, As to
the composition of the words to be sufficient in law, and the Court shall judge that;
2. That it be not razed or interlined in material points or places; ... 3. That it may
appear to the Court and to the party if it was upon conditional limitation or power of a
revocation in the deed. . . . And these are the reasons of the law that deeds pleaded in
courtshall be shewed forth to the Court. And therefore it appears that it is dangerous to
suffer any who by the law in pleading ought to shew the deed itself to the Court, upon
the general issue to prove in evidence to a jury by witnesses that there was such a deed,
which they have heard and read; or to prove it by a copy ; for the viciousness, rasures,
or interlineations, or other imperfections in these oases will not appear to the Court, or
peradventure the deed may be upon conditional limitation or with power of revocation,
and by this way truth and justice and the true reason of the common law would be
subverted." 1
1641, Earl of Suffolk v. Greenwill, Ch. Rep. 89, 92 : " The Court held it very danger-
ous to admit the contents and sufficiencies of deeds to be proved by the testimony of
witnesses, the construction of deeds being the office of the Court."
1696, Holt, C. J., in Steyner v. Droitwich, Skinner 623, said that though an original
may be evidence, " yet a copy would not, for it is liable to the mistake of the transcriber."
1811, Mr. Burrowes, arguing, in Sheridan's Trial, 31 How. St. Tr. 669 : " There is
nothing about which the law is more sacred than keeping away the vague and fluctuating
recollection of the contents of written instruments, when it is possible to produce the
instruments themselves."
1828, Tenlerden, L. C. J., in Vincent v. Cole, M. & M. 257: " I have always (perhaps
more so than other judges) acted most strictly on the rule that what is in writing shall
be proved only by the writing itseU. My experience has taught me the extreme danger
of relying on the recollection of witnesses, however honest, as to the contents of written
instruments; they may be so easily mistaken that I think the purposes of justice require
the strict enforcement of the rule."
1852, Maule, J., in MacDonnell v. Evans, 11 C. B. 942: "It is a general rule
that if you want to get at the contents of a written document, the proper way is to pro-
duce it if you can. That is a rule in which the common sense of mankind concurs. If
the paper is in the possession of the party who seeks to have the jury infer something from
its contents, he should let them see it."
•• Accord: 1613, Read v. Hide, 3 Co. Inst. 173.
1391
§ 1179 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
These reasons are simple and obvious enough, as dictated by common sense
and long experience. They may be summed up in this way : (1) As between
a supposed literal copy and the original, the copy is always liable to errors on
the part of the copyist, whether by wilfulness or by inadvertence ; this con-
tingency wholly disappears when the original is produced. Moreover, the
original may contain, and the copy will lack, such features of handwriting;
paper, and the like, as may afford the opponent valuable means of learning
legitimate objections to the significance of the document ; (2) As between
oral testimony, based on recollection, and the original, the added risk, almost
the certainty, exists, of errors of recollection due to the difficulty of carrying
in the memory literally the tenor of the document.
§ 1180. Same: Spurious Reasons. It is worth while to note the nature
of these reasons, because currency has been given, since the quasi-philosophic
treatise of Chief Baron Gilbert, to a reason which is superficially attractive in
itself, yet is not only insufficient in principle but quite inconsistent with the
detailed terms of the rule as everywhere accepted. This reason has been thus
stated :
Ante 1726, Chief Baron Gilbert, Evidence, 4 : " There can be no demonstration of a fact
witliout the best evidence that the nature of the thing is capable of. Less evidence doth
create but opinion and surmise, and does not leave a man the entire satisfaction that
arises from demonstration. For if it be plainly seen in the nature of the transaction that
there is some more evidence that doth not appear, the very not producing it is a presump-
tion that it would have detected something more than appears already. . . . No such evi-
dence shall be brought which ex natura rei supposes still a greater evidence behind in the
party's own possession and power; . . . for if the other greater evidence did not make
against the party, why did he not produce it to the Court ? As if a man offers a copy of
a deed or will where he ought to produce the original, this carries a presumption that
there is something more in the deed or will that makes against the party, or else he would
have produced it."
1820, Holroyd, J., in Brewster v. Sewall,^ B. & Aid. 296, 302 : "Now the reason why
the law requires the original instrument to be produced is this, that other evidence is not
so satisfactory, where the original instrument is in the possession of the party and where it
is in his power to produce it or get it produced provided he gives notice. In either of these
cases, if he does not produce it or take the necessary steps to obtain its production, but
resorts to other evidence, the fair presumption is that the original document would not
answer his pui-pose, and that it would differ from the secondary evidence which it
The fallacy about this reason is that, even if it were shown not to exist, i. e.
if the Court were satisfied that the proponent of the document was acting in
perfect good faith (as, where he had no reason to believe that the original's
terms would be needed or would be disputed), it would still be proper to re-
quire the document, in order to guard against honest errors of testimony and
to allow the opponent to gain such enlightenment as he could from the
appearance of the original ; the rule should apply to honest as well as to dis-
honest parties. Moreover, that this is not the reason actually relied upon is
1 This reason has been often advanced ; e. g. : 664 ; and in Doe v. Ross, 7 id. 102 ; 1828, Mar-
1840, Parke, B., in Slatterie v. Pooley, 6 M. & W. shall, C. J., in Tayloe v. Eiggs, 1 Pet. 591, 596.
1392
§§1177-1282], GENERAL PKINCIPLE. §1181
seen in certain details of the rule ; for the possession of the document by a
disinterested third person would relieve the proponent from the suspicion of
fraudulent suppression, yet the rule applies equally to that case ; and the
possession by the opponent himself with the right not to produce it will also
serve to dismiss the suspicion, yet the rule applies equally to that case.
Finally, if the above reason were the correct one, the rule would equally
apply to objects other than writings ; yet it is generally conceded that it
does not. It may be added that, so far as concerns the above reason, it
would have been sufficient to allow the jury to make an inference from the
non-production {ante, § 291), and it would not have been necessary to require
actual production. This reason, then, while it undoubtedly adds force to the
rule in many instances, may be regarded as not forming the real and working
reason of the rule.^
§ 1181. Riile not applicable to Ordinary Uninaoribed Chattels. The real rea-
son indicated for the rule will show why it has come to be generally accepted
that only documents, or things bearing writing, can be within the purview of
the rule. In the first place, it is in the terms and the construction of lan-
guage that the special risk of error lies. To remember, for example, the color
of a horse is a simple matter in comparison with remembering or even accu-
rately transcribing the terms of a written warranty about the horse. In the
second place, it is chiefly in respect to language that slight inaccuracies are
likely to be of important legal consequence. A mistake, for example, in
counting the number of bushels in a bin of wheat can hardly lead to serious
consequences, but a mistake in a few letters of an ordinary deed may repre-
sent it as giving to Jones instead of to Jonas or as giving five hundred instead
of four hundred acres. For these reasons, it is entirely proper that a rule of
such strictness should not be applied so broadly as to require the production
of anything but writings ; and such is the accepted doctrine :
1874, Coleridge, C. J., in R. v. Francis, L. R. 1 C. C. R. 128, 132 (not requiring a clus-
ter-ring, said to be false, to be produced) : " When the question is as to the efEect of a written
instrument, the instrument itself is primary evidence of its contents. . . . But there is
no case whatever deciding that when the issue is as to the state of a chattel, e. g. the
soundness of a horse or the equality of the bulk of the goods to the sample, the produc-
tion of the chattel is primary evidence and that no other evidence can be given till the
chattel is produced in court for the inspection of the jury."
1844, Marshall, J., in Clarke v. Robinson, 5 B. Monr. 55 (declining to require produc-
tion of a slave waiTanted sound) : " It is now contended that as the evidence of one's own
senses is the best of which extrinsic facts are susceptible, the testimony of witnesses is of
an inferior grade, and therefore should not be allowed when the fact or thing itself to
which it relates can be exhibited to the jury. This principle may have prevailed to some
extent in the ancient jurisprudence of England, when the jury was brought from the ac-
tual vicinage of the transaction which they were to try, and in many cases affecting the
realty were sent out to have a view of the premises. We suppose it was never required
in cases involving mere personal property that the jury should act upon their own view
of the thing. . . . The rule requiring the best evidence does not require that the jury
shall in all cases where it is practicable be furnished with the means of personally know-
* Compare the quotation from Attorney-General v. LeMerchant, post, § 1199.
1393
§1181 DOCUMENTARY ORIGINALS. [Chap. XXXIX
iiig the fact. Except in cases of written instruments or records, although there may be
more satisfactory means of knowledge, there is no higher grade of testimony as a means
of oommunicatiug facts to a jury than the statement of a witness who has himself had
the best means of knowledge. . . . We will not say that there may not be cases involv-
ing the condition or qualities of particular articles, in which the party having the custody
may be permitted or perhaps even required to exhibit it to the jury as affording the most
satisfactory means of knowledge ; but the Court must have a discretion in these cases to
prevent misconception or imposition." ^
Nevertheless, it is conceivable that upon occasion the particular features of
an uninscribed chattel may be so open to misconstruction and may become so
material to the issue that it would be proper to require production ; in other
words, if the two conditions above named as peculiar, to writings occur for a
thing not a writing, then the rule may well apply. Lord Kenyon's well-
known ruling about the bushel-measure is an excellent illustration of this;"'^
and a few other instances, less significant of principle, are recorded.* A cor-
rect solution would seem to be to leave to the discretion of the trial Court
the occasional application of the rule to uninscribed chattels.
§ 1182. Rule as applicable to Inscribed Chattels. It is impossible to say
that any settled doctrine has found favor respecting the application of the
rule to material objects, not paper, bearing inscriptions in words. There are
inherent difficulties. It is impracticable to base any distinction upon the
material bearing the inscription ; for a notice-board or a tombstone may de-
serve the application of the rule as well as a sheet of note-paper. Nor is it
practicable to distinguish according to the number of words ; for each number
is but one higher than the preceding, and a broker's note of ten words or a
baggage-check of a few initials may need inspection as much as a lengthy
lease for ninety-nine years. Nor can the purpose of the words be material ;
for the memorandum-tick made for private verification may become as impor-
tant as the deed intended for public registration. No Court seems to have
attempted, and certainly no Court has achieved, a satisfactory test for the
distinction to be drawn. There are precedents requiring and precedents not
requiring production, — precedents often entirely irreconcilable if one were
seeking an inflexible rule.-^ But there is no reason for making such a rule ;
^ Accord : 1 874, R. v. Francis, L. R. 2 C. C. tion of hat of injured person ; rule not appli-
R. 128 (not requiring the production of a ring cable).
said to be counterfeit) ; 1892, Lucas v. Williams, ' 1797, Chenie v. Watson, Peake Add. Cas.
2 Q. B. 11.3 (infringement of copyright of paint- 123 (assumpsit on a warranty that wheat should
ing by publishing a photographic copy of it ; weigh 59 pounds per bushel ; a witness being
proof of the photograph's being a copy, allowed asked whether the plaintiff's .bushel had not
without requiring the production of the paint- been tried and found to correspond with the
ing) ; 1844, Clarke v. Robinson, 5 B. Monr. 55 public Belford bushel, and the latter but not
(warranty of slave's soundness ; to show her the former measure being in court, Kenyon,
condition, production not required ; quoted L. C. J., " was of opinion that the question could
supra) ; 1869, Com. o. Pope, 103 Mass. 440 (con- not be asked . . . without producing the origi-
dition of clothes, etc., testified to without pro- nals; . . . the best evidence the nature of the
dnctiou) ; 1886, Com. i;. Welch, 134 id. 473 case would admit of -wan a production of both
(illegal liquor-selling; the contents of a tumbler measures in court, and a comparison of them
said to contain liquor, and carried away hy the before the jury ").
witness, not required to be produced); 1899, ' 1835, Lewis a. Hartley, 7 C. & P. 405 (dog
State u. McAfee, 148 Mo. 370, 379, .50 S. W. 82 identifiable by marks; production required);
(deceased's shirt, not required to be produced) ; and some of the cases in note I, § 1182.
1882, Heneky v. Smith, 10 Or. 349, 355 (condi- * The precedents of both sorts are as follows :
1394
1177-1282]
EULE APPLIED TO CHATTELS.
§1182-
the rational and practical solution is to allow the trial Court in discretion to
require production of an inscribed chattel wherever it seems highly desirable
in order- to ascertain accurately a material fact. It should be added that the
series of English rulings in which it was held, in certain prosecutions for
sedition, that the banners bearing inscriptions alleged to import treasonable
purposes, need not be produced,^ must be regarded as wholly unjustifiable.
The very differences that existed, in some of the trials, in the testimonies of
different witnesses as to the inscriptions' precise terms, and the materiality,
in such trials, of these differences, should indicate the propriety of applying ,
the rule, within discretionary limits ; and it may be thought that those rulings
would to-day not be followed even in England.^
England: 1706, Feilding's Trial, 13 How. St. Tr.
1347 ( Witness : " I know Mr. Feilding by sight ;
he bought a eolrl ring of me, but I cannot
remember the time " ; Counsel : " Was there any
posy in it 1 " " Yes, I graved a posy whilst he
took a turn in the alley; the posy was by his
direction, ' Tibi soli'"); 1805, K. v. Johnson, 7
East 65, 66, 29 How. St. Tr. 437 (postmark on
an envelope; rule applied); 1842, R. v. Edge,
Wills, Giro. Evid., 5th Am. ed. 212, Maule, B.
(inscription on a coffin plate; rule applied);
1843, U. 0. Hinley, 1 Cox O. 13 (rule applied
to the address on a hamper, by Maule, J. ; but
he added ; " Suppose an inscription on a bale
marked ' XX ' ; would it be necessary to produce
the bale?") ; 1847, Burrell v. North, 2 C. & K.
680, 682, semble (rule applied to the direction on
a parcel) ; 1864, B. v. Farr, 4 F. & F. 336, Chan-
uell, B. (stealing a ring; as a part of the de-
scription to identify it, a question was asked as
to the inscription; rule applied) ; United States:
1874, Kansas Pac. E. Co. v. Miller, 2 Colo. 442,
+51, 462 (boxes of a passenger killed on railroad ;
inscription proved without production ; "if a
sign were painted on a house, it would hardly
be contended that the house would have to be
produced, nor can it be said that the law
converts the court-room into a receptacle for
wagons, boxes, tombstones, and the like, on
which one's name may be written ") ; 1793,
State V. Osborn, 1 Root 152 (passing a counter-
feit sixteenpence ; production required); 1793,
State V. Blodget, ib. (forged paper-money ; rule
applied); 1858, Whitney i). State, 10 Ind. 404
(selling lottery tickets, partly printed ; produc-
tion required) ; 1877, Frazee v. State, 58 Ind. 8,
11 (envelope bearing on the outside directions
to the stakeholder for delivery of the stake
witliin; production required); 1878, Caldwell
V. State, 63 id. 283 (same) ; 1898, Wright v.
State, 88 Md. 436, 41 Atl. 795 (rule applied to
inscription on wrapper of butter-package) ; 1 858,
Com. V. Blood, 11 Gray 74, 77 (labels of "rye
whiskey" on jugs; production not required);
1855, Bryant u. Stilwell, 24 Pa. 314, 317 (" maps,
surveys, and drawings are not to be distin-
guished from other papers in this respect";
here, a plan of a house) ; 1876, U. S. a. Babcock,
3 niUou 571, 574 (superscription on an enve-
lope ; rule not applicable) ; 1878, U. S. v. De
Graff, 14 Blatchf. 381, 385 (evading customs
laws; testimony to shipping-marks on barrel-
heads ; rule not applicable). Compare also the
criminal cases post, § 1205, where the rule was
assumed to be applicable to paper-monev, etc.
2 1746, Fletcher's Trial, 18 How. St. Tr. 353
(a flag with the motto, " Liberty and Property,
Church and King"; rule not applied); 1781,
Lord George Gordon's Trial, 21 id. 513 (banners
inscribed " Protestant Association " and " No
Popery"; rule not applied); 1820, R. v. Hunt,
1 State Tr. n. 8. 171, 232, 252, 3 B. & Aid. 566,
569 (sixteen flags, with such mottoes as "No
borough-mongering," " Unite and be free,"
" Equal representation or death," " I'axation
without equal representation is tyrannical and
unjust," "No corn laws," "The rights of man,"
were seized by the police at a meeting ; Abbott,
C. J. : " [1] There is no authority to show that,
in a criminal case, ensigns, banners, or other
things exhibited to public view, and of which
the effect depends upon such public exhibition,
must be produced or accounted for on the part
either of the prosecutor or of the defendants. . . .
Inscriptions used on such occasions are the pub-
lic expression of the sentiments of those who
bear and adopt them, and have rather the char-
acter of speeches than of writings. ... [2] The
difBculty of such a deduction [of identity of the
things when produced], and the impossibility
that must occur in many cases of either produc-
ing the things themselves or of showing what
has become of them, shows the unreasonable-
ness of requiring the proof of the tilings them-
selves"); 1820, R. V. Dewhurst, 1 State Tr.
N. s. 529, 542, 594 (similar) ; 1833, R. v. Fursey,
6 C. & P. 81, 86, 3 State Tr. n. s. 543, 560 (procla-
mation, forbidding riotous meeting, posted on a
building-wall; production not required, on the
authority of B. v. Hunt, but the real reason
apparently was that here the placard was affixed
to a wall, — as in § 1214, post ; banners bearing
death's head, etc., and "Liberty or Death";
production not required) ; 1839, R. v. Stephens,
ib. 1189, 1196 (inscriptions on banners ; produc-
tion not required) ; 1843, R. v. O'Connell, 5 id.
1, 245 (inscriptions on bankers described, with-
out producing the banners).
3 1843, R. V. Hinley, 1 Cox Cr. 13 (Maule, J.,
after quoting the passage of Abbott, C. J., in
R. V. Hunt, supra : " I confess that is not very
satisfactory to me, for the circumstance of its
being a public expression of feeling is no reason
why the best proof should not be given. The
1395
§ 1183 DOCUMENTAEY OEIGINALS [Chap. XXXIX
§ 1183. Rule applicable to all Kinds of Writings. When the thing in
question comes strictly within the class commonly termed " documents " or
" writings," i. e. things of paper or parchment employed solely as a material
for bearing words written or printed in the form of complete clauses or sen-
tences expressing connected thought, there is no further distinction to be
made. The rule is applicable to all kinds of writings. The original doctrine
of profert affected only records and instruments under seal, and applied in
civil cases only ; but by a gradual development, already noticed (ante, § 1177),
the rule requiring production in evidence came to be settled, by the 1700s, as
including in its scope any and every kind of document, from a record or a
deed to a letter or a memorandum, and as applicable equally in criminal and
in civil cases.
(b) "Production must he made,"
§ 1185. What constitutes Production; Witness testifying to a document
not before him. The notion of the rule is that the terms of the document
shall be placed before the tribunal and the opponent for personal inspection.
(1) It is not necessary that the proponent of the document should himself
be the one actually to bring it in ; if it is in court when he wishes to prove
its terms, that is enough.^
(2) When the tribunal has delegated its function of hearing testimony
to a lower tribunal or officer, production there will be sufficient ; ^ but pro-
duction already made before a magistrate or trial Court would not suffice
where on appeal the trial of facts is in theory commenced anew in the supe-
rior Court.
(3) Production implies either the handing of the writing to the tribunal for
perusal, or, if that is not demanded, at least the reading aloud of the writing
by counsel or witness ; ^ that a witness, for example, tells about the writing's
contents does not suffice, even though he has it at the time in his possession
in court.*
(4) The production is for the benefit of the tribunal, not the opponent ; *
reason why the writings are to be produced is 5742 (production, before officer taking deposi-
because that is so much better a way of proving tion, of account-books or of verified letter-press
it than having it from the memory of any one copies of letters accounted for, to be equivalent
else ") ; 1859, Butler v Mountgarret, 6 H. L. C. to production at trial, copies being annexed to
639 (Lord Wensleydale, upon counsel alluding the deposition).
to the ruling that banners containing words ' 1860, Hanna, J., in Thornburgh v. R. Co.,
need not be produced: "That is on account of 14 Ind. 499, 501 (" Upon the introduction of a
the inconvenience, perhaps the impossibility, of record it is usually read to the jury by the wit-
procuring the banners"), ness who may have it in charge, or" bv some
1 1593, Wymark's Case, 5 Co. Rep. 75 attorney who may be engaged in the cause. It
(" When a deed is in court, one may take is not often, nor is it necessary, in ordinary
advantage of it without having it in hand. . . . cases, that it should be handed to each juror.
When the deed is by one shewed to the Court, unless in cases when inspection for a particular
it is not respective as to him, but all others shall purpose is necessary ").
take advantage thereof "). So for production * 1897, Mt. Sterling Bank v. Rowen, — Ky.
by the opponent: post, § 1209. — , 43 S. W. 483 (that the document is in the
' Production before a referee to take testi- witness' hands is insufficient),
mony will usually be sufficient: 1873, Bohlman » 1874, Hilyard «. Harrison, 37 N. J. L. 170
V. Coffin, 4 Or. 313, Si 6. But otherwise for (plaintiff offered tax warrants and duplicates in
production before an officer merely taking a evidence at a hearing ; an order to deliver them
deposition, unless a statute expressly gives ex- to defendant's possession for inspection, held
emption; e.g.: Minn. Gen. St. 1894, §§ 5741, improper ; but an order of exhibition for inspeo-
1396
§§ 1177-1282] WHAT IS PEODUCTION. § 1186
his right of inspection, whether at or before trial, rests on other principles
(^ost, §§ 1857-1861 ; ante, §§ 753, 762).
(5) The production is not for the benefit of a witness ; hence, the document
need not be perused by a witness or shown to him ; except in consequence of
certain independent principles, (a) The rule {ante, § 1025) that a witness
must be asked about a self -contradictory statement, before the opponent may
prove it, has erroneously been held by some Courts to require that a writing
containing such a statement must be shown to him before it is offered in
evidence {-post, § 1259). (6) "When a witness is asked to identify the signa-
ture of a document, the document must be before him (on the principle of
§§ 653, 693, ante), because an observation of the specific document, as well as
a knowledge of the type of handwriting, is necessary.^ But where the wit-
ness has already seen the document before testifying, that is sufficient ; "^ the
usual iustance is when the document's production for other purposes is ex-
cused because of its loss.^ Moreover, when the witness' testimony does not
involve an identification of the handwriting of the document, he need not
have it before him when testifying.^
§ 1186. Production of Original always Allowable. The rule is that pro-
duction must be made ; it says nothing, in itself, as to whether production
may be made. But it has already been seen {ante, § 1151) that autoptic pro-
ference, or production for the tribunal's inspection, of any evidential object is
always allowable, in the absence of any specific rule of policy to the contrary.
If then a party who, under the present principle, is exempted from producing
a document in proof of its contents, and might prove them by copy if he
wished, prefers nevertheless to produce and show the original, he may of
course do so. This principle seems obvious enough, but it has constantly to
be pointed out anew by the Courts :
tion in open court or before a court officer or 1892, § 1819. Compare the cases as to pholo-
before the producing party or his attorney was graphic copies of documents submitted to hand-
held demandable). writing witnesses: ante, % 797, post, §§ 2010,
» 1841, Neale v. McKinstry, 7 Mo. 128, 132 2019.
(witness testifying by deposition to a note not ' 1824, Dartnall v. Howard, Ry. & Mo. 169
before him, excluded). (where it was necessary to identify the defend-
But whether the document must be sent out ant as one who had signed an answer in Chan-
of the jurisdiction for an absent deponent ought eery not produced, a person who had examined
to depend on the circumstances: 1809, Amory ttie signature was allowed to testify, without
V. Fellowes, 5 Mass. 219, 225 ("It may not be having the writing before him),
necessary to send .the will back after it has been ' 1 849, Segond v. Roach, 4 La. An. 54 •
filed here, to obtain the testimony of the sub- 1888, Vye v. Alexander, 28 N. Br. 89, 95; 1889,'
scribing witnesses. . . . But a case may be so Alexander w. Vye, 16 Can. Sup. 501 (Gwynne, J.|
circumstanced that the will must be sent back diss., quoted ante, § 697); 1890, Halifax Bank-
to the subscribing witnesses ") ; 1854, Commer- ing Co. v. Smith, 29 N. Br. 462, 469 (Vye v.
cial Bank v. Union Bank, 11 N. Y. 203, 209 Alexander approved; here, a writing not pro-
(draft shown by copy in the deposition-interrog- duced, but admitted to be genuine),
atones; "a party is never called upon to risk ' 1902, Harkless v. Smith, 115 Ga. 350, 41
the loss of valuable original papers, by annexing S. E. 634 (a deed-copy may be used for a deposi-
them to a commission to be transmitted to a tion, where the witness speaks only to the con-
distant State or country for execution "). Stat- sideration of the deed as identified by its tenor) ;
utes sometimes provide for sending a will to an 1899, Clark v. Butts, 78 Minn. 373, 81 N. W. U
attesting witness giving his deposition : Cal. C.C. (whether a name was in a deed before execu-
P. 1872, §§ 1307, 1317, as amended in 1901 (see tion; deed need not be shown to witness; othei^
quotation post, § 1304; for the validity of this wise perhaps for expert opinion to alteration),
amendment, see ante, § 488) ; Miss. Annot. Code
1397
1186
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
1878, Campbell, J., in Clymer v. Cameron, 55 Miss. 593, 595 : " It is only as a substitute
for the original that a copy is ever admitted. The original is always the best evidence,
and it is only because of the impossibility or inconvenience of producing the original that
a copy is admitted in its stead in any case. ... It is because the original is evidence that
a copy may be received; and it is alvrays allowable to introduce an original record where
it can be produced." ^
The same principle allows the production of the record-book of recorded or
registered deeds, so far as it may be regarded as an original with reference to
certified copies of it ; ^ but here the question may further arise how far the
1 Accord: Eng.: 1720, Brocas v. Mayor, 1
Stra. 307 (municipal corporate records); Can.:
1841, Linton v. Wilson, 1 Kerr N. Br. 223, 232,
241, 245 (" When a statute says that a copy shall
be evidence, I cannot think that it excludes the
original unless it expressly says the copy shall
be the only evidence ); Ala.: 1842, Lawson v.
Orear, 4 Ala. 156, 158 (Court record books);
1844, Carwile v. House, 6 id. 710, 711 (execu-
tion) ; 1887, Stevenson v. Moody, 85 id. 33, 35,
4 So. 595 (Probate Court record) ; Colo. : 1900,
McAllister v. People, 28 Colo. 156, 63 Pac. 308 ;
Conn.: 1858, Gray v. Davis, 27 Conn. 447, 454
("The object being to lay before the triers the
real contents of the record, it would be absurd
to hold that the best possible evidence, when
adduced, should be excluded because inferior
evidence by copy would be admissible ") ; Fla. :
1903, Ferrell v. State, — Fla. — , 34 So. 220
(record of marriage license) ; Ga.: 1855, Uobbs
V. Justices, 17 Ga. 624, 629, 1884, Rogers v.
Tillman, 72 id. 479, 481 (record of Court of
another county, admitted; "a certified copy of
this record could not have been higher or better
evidence than the original " ; but compare the
Georgia cases infra, note 4); III.: _ 1870, Wil-
loughby V. Dewey, 54 111. 266, 268 (original jus-
tice's docket) ; 1875, Stevison v. Earnest, 80 id.
513, 517 (records of Court; general principle
affirmed); 1886, Taylor v. Adams, 115 id. 570,
573, 4 N. E. 837 (foreclosure proceedings) ; Ind. :
1860, Wiseman o. Risinger, 14 Ind. 461 ; 1865,
Green v. Indianapolis, 25 id. 490, 492 (proceed-
ings of a municipal corporation) ; 1874, James
V. Turnpike Co., 47 id. 379, 381 (articles of asso-
ciation) ; 1876, Brittou v. State, 54 id. 535, 541
(justice's judgment); 1878, Kennard v. Carter,
64 id. 31, 40 (same) ; 1878, Miller v. Harrington,
61 id. 503, 508 (same) ; 1880, Jones v. Levi, 72
id. 586, 591 ; 1881, Ues v. Watson, 76 id 359,
360; 1881, Hall «. Bishop, 78 id. 370,372; 1883,
Anderson v. Ackerman, 88 id. 481, 492; La.:
1817, Baudin v. Pollock, 4 Mart. 613 (notary's
records) ; 1827, Prion v. Adams, 5 id. N. s. 691 ;
Afe. : 1874, Sawyer v. Garcelon, 63 Me. 25
(record of conviction ; " strictly speaking, it is
the best and only original evidence of the facts
recited in it ; a verified copy of the record,
though admissible, is still only secondary evi-
dence ") ; Mass.: 1839, Brooks v. Daniels, 22
Pick. 498, 500 (record of a court-martial's pro-
ceedings) ; 1850, Odiome v. Bacon, 6 Cush. 185,
190 (record of a probate court ; a statutory
sanction for attested copies does not prevent the
original's use) ; 1850, Greene v. Durfee, ib. 362
(bankrupt's order of discharge); 1859, Day t>.
Moore, 13 Gray 522, 524 (original writ, return,
and execution) ; Mich.: 1856, Lacey v. Davis, 4
Mich. 140, 150 (deed recorded); Miss.: 1878,
Clymer ». Cameron, 55 Miss. 593 (official record
of tax-sales) ; A^. Y. : C. C. P. 1877, § 950 (docket
of justice in adjoining State may be prodnced,
if properly authenticated by justice's oral testi-
mony) ; Oh. : 1833, Winthrop v. Grimes, Wright
330; 1829, King v. Kenny, 4 Oh. 79, 83 (high-
way commissioners' records) ; 1867, Sheehan v.
Davis, 17 Oh. St. 571, 580 (deed); Pa.: 1826,
Eisenhart v. Slaymaker, 14 S. & R. 153, 155;
1851, Garrigues v. Harris, 16 Pa. St. 344, 351 ;
1856, Miller v. Hale, 26 id. 432,435 (assessment-
book) ; Tex.: 1856, Houze v. Houze, 16 Tex.
598, 601 (judicial record) ; U. S.: 1903, Bradley
T. Co. V. White, 58 C. C. A. 55, 121 Fed. 779
(court files) ; Va. : 1868, BuUard ». Thomas, 19
Gratt. 14, 18 (order-book from another Court);
Wash.: 1902, Smith v. Veysey, 30 Wash. 18,
70 Pac. 94 (homestead declaration) ; Wis. : 1867,
Weisbrod v. R. Co., 21 Wis. 602, 616.
2 Ala.: 1883, Huckabee v. Shepherd, 75 Ala.
342, 344 (register of a deed) ; 1887, Stevenson
V. Moody, 85 id. 33, 35, 4 So. 595 (record-book
of exemptions kept in Probate Court) ; 1891,
Jones V. Hagler, 95 id. 529, 532, 10 So. 345
(record of deed) ; 1892, Cofer v. Scroggins, 98
id. 342, 345, 13 So. 115 (same); 1895, Gay v.
Rogers, 109 id. 626, 629, 20 So. 37 (mortgage
record-book); Cal.: C. C. P. 1872, § 1951, as
amended March 1 , 1 889 (record of recorded instru-
ment) ; Colo. : 1873, Eyster v. Gaff, 2 Colo. 228,
230 (deed record-book) ; Ga.: 1898, Richardson
V. Whitworth, 103 Ga. 741, 30 S. E. 573 (re-
record-book) ; Ind.: 1872, Bowers v. Van Winkle,
41 Ind. 432, 435 (deed-record); 1874, Patterson
V. Dallas, 46 id. 48 (same) ; 1881, Lentz v. Mar-
tin, 75 id. 228, 235 (same); Mo.: 1887, Smiley
V. Cockrell, 92 Mo. 105, 112, 4 S. W. 443 (deed-
record) ; Pa.; 1840, Harvey v. Thomas, 10 Watts
67, 76 ("The words of the law are that copies
of the deeds, etc., are to be evidence; now the
record-book is a copy of the deed or it is
nothing; . . . copies from the record, or the
record, have always been admitted as evi-
dence") ; 5. C. : 1897, State v. Crocker, 49 S. C.
242, 27 S. E. 49 (distinguishing Duren v. Sin-
clair, 22 S. C. 361, on the ground that the statu-
tory requirement of 10 days' notice, post, § 1225,
applied properly to certified copies onlv, and not
to the record itself, and that in that case no
proof ofloss was made; Jones, J., diss.). Contra:
1859, Hanson v. Armstrong, 22 111. 442, 445
(record-book not admitted).
1398
§§ 1177-1282] OEIGINALS ADMISSIBLE. § 1186
registration is authorized by law, and how far even the record-book as only a
copy of the original is admissible; so that other principles {post, § 1224) must
be understood to be equally involved.
In a few instances, original public records have been excluded ; but those
rulings may be attributed to one of four special considerations. (1) If the
law forbids the removal of a document from a public office to produce it in
court is to produce evidence obtained by a violation of the law. This, how-
ever, is generally regarded as no objection to the reception of evidence, and
therefore should not in itself exclude a public document thus illegally re-
moved.^ (2) Irrespective of any specific prohibition against removal, it has
been thought by a few Courts that the policy of preserving public records from
loss or injury (post, § 2182) may be incidentally enforced by refusing to accept
the original when removed from its proper place and offered in evidence.*
(3) In some instances the exclusion is apparently due in part to the thought
that the genuineness of the original can not be as safely proved by a stranger
bringing in the records, as by a clerk certifying to a copy in his office with
the records in their place ;^ but this consideration is 'apparently influenced
by other principles concerning Authentication {post, §§ 1278, 2158), and
can have no proper bearing on the propriety of using the original when prop-
erly authenticated. (4) Finally, the exclusion has sometimes been due to a
misunderstanding of the purpose of statutes making certified copies evidence.^
Such statutes aim usually both to dispense with the original's production
{post, § 1218) and to qualify the recording clerk to be a hearsay witness to
the execution of the original ( ^os^, § 1677), — in other words, to supply addi-
tional kinds of evidence. It -is therefore a total misapprehension of their
meaning to rule that, because they merely make copies admissible, there-
fore originals are not made evidence; they are not expressly so made by
the statute, because they were admissible already without the statute.^
' See the cases collected under the general (original papers of judicial records, not to be
principle, post, §§ 2182, 2183. used because of danger to records). Compare
* 1892, Tharpe v. Pearce, 89 Ga. 194, 1.5 S. E. the similar cases, cited post, § 2182.
46 ( Alabama justice's docket, proved by himself, ' The followiiig cases may be thus explained •
not admitted); 1896, Ellis v. Mills, 99 id. 490, 1883, Bigham v. Coleman, 71 Ga. 176, 192
27 S. E. 740 (a plea and answer from another (record of court in another county, proved by
Court of the same county ; excluded ; Atkin- attorney, excluded ; obscure) ; 1901, Cramer r.
son, J. : " The answer to this is that the law has Truitt, 113 id. 967, 39 S. E. 459 (original record
pointed out one method of authentication only, from superior court, not receivable in justice's
and the Courts are not at liberty to recognize court, where not admitted genuine) ; 1901, State
an entirely different manner of proving records, v. Chaney, 93 Md. 71, 48 Atl. 1057 (original
Aside from this, however, upon considerations affidavit IJefore justice on bastardy charge held
of public policy, original documents should be improperly transmitted to circuit court) ; 1855
excluded in courts other than those in which Wallis w. Keauchamp, 1 5 Tex. 305, scmWe : 1883'
they are rendered, otherwise the temptation to Hardin v. Blackshear, 60 id. 132, 135. '
attorneys and officers of the court to withdraw « 1809, Burdon v. Rickets, 2 Camp 121 note
from the files original records for the purpose (a statute made the copy of a contract 'of pur-
of nsmg them as evidence in distant portions of chase of a land-tax title evidence ; held, that the
the State might lead to their loss or destruction, original was not thereby made evidence) ; 1897,
and thus produce unnecessary confusion in tlie Belt ;•. State, 103 Ga 12, 29 S. E. 451 (original
keeping of those things which should stand declaration and judgment in another trial, ex-
as permanent memorials of the action of the clnded, because the certified copy was " primary
several courts:" 1902. Daniel «. State, 114 id. evidence").
533, 40 S. E. 805 (county commissioners' records, ' Distinguish, however, the Hearsay ques-
•held improperly proved by original minutes) ; tion ; e. g. if the question is whether a tax-as-
1833, Nichol u. Ridley, 5 Yerg. 63, 65, sembk sessor's list is admissible, the first question
1399
§ 1187
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
§ 1187. Dispensing with Authentication does not dispense with Produc-
tion. The autheutication of a document {post, §§ 2129-2169), i. e. proof that
it was executed as it purports to be, is often dispensed with, by statute, where
the opponent, by failing to traverse its genuineness, is taken as having ad-
mitted that fact. Nevertheless, the rule requiring production still applies
and must be satisfied.^
§ 1188. Dispensing with Production does not dispense w^ith Authentica-
tion. Conversely, the satisfaction of the present rule, by some circumstance
dispensing with production, leaves it still necessary to authenticate the
absent document, by such evidence of execution as is sufficient according
to the principles of Authentication (post, §§ 2129-2169) ; attention has fre-
quently to be called to this plain principle.^
§ 1189. Order of Proof as between Execution, Loss, and Contents. The
rules for order of proof form a separate body of doctrine (post, §§ 1866-1900).
But it will be here convenient to notice the order of proof proper to satisfy
the requirements of these two preceding rules when applied to one and the
same document.
(1) Execution vs. contents. Where, in consequence of the unavailability of
the original, the contents are to be proved by testimony, the question whether
is whether the assessor's official assertion not
made in court is admissible under the Hearsay
rule {post, § 1640) ; if it is, then, so far as the
present principle goes, the original list may be
produced, even though a statute declares the
official list provable by copy.
1 1872, New York H. & N. R. Co. v. Hunt,
39 Conn. 75, 80; 1853, Matossy v. Frosh, 9 Tex.
610, 613; 1824, Sebree v. Dorr, 9 Wheat. 558,
563 (" The production of the originals might still
be justly required, to ascertain its conformity
with the declaration, to ascertain whether it re-
mained in its genuine state, to verify the title
by assignment in the plaintifi, to trace any
payments which might have been made and
endorsed, and to secure the party from a re-
covery by a bona fide holder under a subsequent
assignment"; here said of a note). Contra:
1899, Knight v. TVhitmore, 125 Cal. 198, 57
Pac. 891, semble. For cases under Illinois
statutes, see post, § 1225.
On an ausjogous principle, the applicability
of the presumption of a lost grant, arising after
twenty years' possession, does not exempt the
claimant from producing or accounting for a
specific deed which he also invokes in support
of his claim : 1845, Keynolds u. Quattlebnm, 2
liich. 140, 144.
1 1863, Dickson v. M'Farlane, 22 U. C. Q. B.
539; 1859, Shorter i'. Sheppard, 33 Ala. 648;
1885, Comer a. Hart, 79 id. 389, 394; 1888,
Potts V. Coleman, 86 id 94, 101, 5 So. 780;
1853, Sinclair r. Wood, 3 Cal. 98, 100; Cal.
C. C. P. 1872, § 1937; 1873, Hobson v. Porter,
2 Colo. 28; 1847. Kelsey r. Hanmer, 18 Conn.
311, 317; 1858, Heard v. McKee, 26 Ga. .332;
1860, Bigelow v. Young, 30 id. 121, 124; I860,
Oliver V. Persons, ib. 391, 397 ; 1888, Calhoun o.
Calhoun, 81 id. 91, 6 S. E. 913 ; 1898, Dasher
V. Ellis, 102 id. 830, 30 S. E. 544 ; 1845, Murray
V. Buchanan, 7 Blackf. 549 ; 1862, Corse v. San-
ford, 14 la. 235; 1890, Bray v. Flickinger, 79
id. 313, 314, 44 N. W. 554; 1893, Stevens v.
State, 50 Kan. 712, 715, 32 Pac. 350; 1818,
Embry v. Millar, 1 A. K. Marsh. 300; 1821,
Mclntire ». Funk, Litt. Sel. C. 425, 427 ; 1823,
Elmondorff v. Carmichael, 3 Litt. 473, 479 ;
1897, Fox I). Pedigo, — Kv. — , 40 S. W.
249; 1898, Helton v. Asheri 103 id. 730, 46
S. W. 22 ; 1831, Thomas v. Thomas, 2 La. o. s.
166, 168; 1840, Boothe v. Dorsev, 11 G. & J.
247, 252 ; 1889, Wakefield r. Dav,'41 Minn. 344,
347, 43 N. W. 71 ; 1897, Weiler"t>. Monroe Co ,
74 Miss. 682, 22 So. 188 ; 1852, Perrv v. Koberts,
17 Mo. 36; 1873, Yankee v. Thom'pson, 51 id.
241, 244; 1827, Colby v. Kenniston, 4 N. H.
262, 265; 1844, Bachelder v. Xutting, 16 id.
261, 263 ; 1902, Garland v. Foster Co. S. Bank.
11 N. D. 374, 92 X. W. 452; 1828, Richmond
V. Patterson, 3 Oh. 369 (record proved by ex-
amined copy must he shown to have been
lawfully kept) ; 1845, Flinn v. M'Gonigle, 9
W. & S. 75, 76 (" Light evidence is sufficient
for this purpose"); 1849, Slone c. Thomas, 12
Pa. 209 (lost note ; genuineness not sufficiently
evidenced); 1850, Porter r Wilson, 13 id. 641,
646 (articles of partnership ; proof held insuf-
ficient) ; 1870, Krise r. Xe.ison. 66 id. 253, 258
("evidence of the genuineness of the original
. . must be of the most positive and un-
equivocal kind"); 1818, Howell v. House, 2
Mill Const. 80, 83; 1830, Stockdale v. Yonng,
3 Strobh. 501, 505 ; 1897, Carev r. Williams, 25
C. C A. 227, 79 Fed. 906, 908.'
Proof of contents and of execution mav of
course come from different witnesses : 1896,
Painter v. Ladyard, 109 Mich. 568, 67 N. W.
901.
1400
§§ 1177-1282] OEDEE OF PEOOF. § 1189
the execution (or, as it is sometimes put, the existence, or the genuineness)
of the document should first be shown, or its contents should first be shown,
is not easy of solution. On the one hand, it is difiicult to prove, for example,
that A executed a deed of certain land, without to some extent referring to
its tenor to identify it. On the other hand, to allow the contents to be first
fully set forth and proved involves the risk of making an impression on the
jury such as would be improper in case the proof of execution later falls to
the ground. The latter consideration has usually been regarded as the more
important, at least for the purpose of establishing a usual rule ; and accord-
ingly it has long been common to say that there must first be evidence of
execution before evidence of contents is offered :
1737, Goodier v. Lake, 1 Atk. 446 : " Where an original note of hand is lost, and a
copy of it is offered in evidence to serve any particular purpose in a cause, you must
shew sufficient probability to satisfy the Court that the original note was genuine, before
you will be allowed to read the copy."
1826, Kimball v. Morrill, 4 Greenl. 368, 370 : "When a party, on an issue to the coun-
try, would avail himself of an instrument in writing, lost by time and accident, he should
first prove that an instrument was duly executed with the formalities required by law ;
. . . then, and not till then, he is permitted to give evidence of its contents." i
Nevertheless, the trial Court ought to have a discretion to allow the evi-
dence of contents to come first, where it is more convenient and where an
assurance is given (on the principle of § 1871, post) that the other proof will
be later put in ; and such is th'e expressed doctrine of some Courts,^ which
others also would probably recognize on occasion. Moreover, where the
execution is the real point in dispute, and the jury will have to consider it
fully in any case, it would always be proper to receive the copy first and
then go into the main matter in dispute.*
1 Kng. .- 1696, R. v. Culpepper, Skinner 673 1866, Pisk v. Kissane, 42 id. 87 (declaring that
(though a copy is receivable, "yet they never the same affidavit or testimony used to prove
permitted it except it be proved that there was loss need not speak to the existence of the
such a deed executed"); 1749, Whitfield v. original); Pa.: 1899, McKenna v. McMichael,
Fausset, 1 Ves. Sr. 387 (L. C. Hardwicke : 189 Pa. 440, 42 Atl. 14 (will; some evidence of
"Tlie law requires a proper foundation to be exclusion required first); S. C. : 1830. Stock-
laid ; . . . first, to prove that such a deed once dale v. Young, 3 Strobh. 501, 504 (first exist-
existed ") ; Del. : 1 855, Bartholomew v. Ed- ence and execution, then loss, then contents) ;
wards, 1 Houst. 17, 25 (first, existence, then 1895, Hobbs v. Beard, 43 S. C. 370, 21 S. B.
loss, then contents); s. c. lb. 247, 250 (same; 305 (first loss, then execution, then contents),
the first two being proved to the Court); Ga.: ^ 1872, Groff v. Ramsey, 19 Minn. 44, 60
Code 1895, § 5174 (but alight evidence suffices, (the order of proof is in the trial Court's
where no " direct issue " is made) ; 1896, Baker discretion); 1827, Allen v. Parish, 3 Oh. 107,
V. Adams, 99 Ga. 135, 25 S. E. 28 (the original 121 (the regular order should be distinct, —
lost, and the maker having testified to its au- existence, execution, loss, and contents ; but
thentieity, a copy was received) ; 1898, Hayden at times it may be convenient to go into all at
V. Mitchell, 103 id. 431, 30 S. E. 287 (execution once; good opinion).
and existence must first be shown) ; 1898, Smith ' 1870, Stowe v. Querner, L. R. 5 Exeh. 155
V. Smith, 106 id. 303, 31 S. E. 762 (mu.st show (action on a policy of insurance ; plea, no policy
not merely existence, but due execution) ; 1900, made ; to show the terms of the policy, a copy
Garhntt L. Co. i'. Gress L. Co., Ill id. 821, 35 of the document, already admitted by the de-
S. E. 686 (same) ; 1900, Gibson v. Thornton, fendant to be a copy, was received without
112 id. 328, 37 S. E. 406 (same); III.: 1861, preliminary settlement by the judge of the ex-
Dickinson V. Breeden, 25 III. 186 (existence of ecution of an original, because that execution
original must first be proved) ; 1866, Deminger was the main issue ; Bramwell, B. : " The dis-
V. McConnell, 41 id. 227, 232 (intimating that tinction is really this : Where the objection to
statute of 1861, post, § 1225, was passed to the reading of a copy concedes that there was
obviate the effect of the preceding ruling) ; primary evidence of some sort in existence but
1401
§ 1189 DOCUMENTARY ORIGINALS. [Chap. XXXIX
(2) Execution vs. loss. It is difficult to prove that a specific document is
lost without referring to some extent to its existence and its genuineness as
existing. On the other hand (it is argued), to prove the existence and exe-
cution of a specific document, before it appears that the document cannot be
produced, is on principle improper. These conflicting considerations have
led to opposing rulings ; by some Courts it is said that evidence of existence
and execution must come before evidence of loss ; * and by some the oppo-
site order is laid down;^ while sometimes it is properly left to the trial
Court's discretion.® The problem may more easily be solved by noting the
distinction between existence and execution ; e. g. suppose A to be testifying
to the loss of a deed of Blackacre purporting to be signed by X ; while on
the one hand it is not necessary for this purpose first to prove that X did
sign it, yet on the other it may be impossible for A to describe what is lost
unless he does refer to the purporting signature; in other words, proof
of the existence of a document bearing certain features is necessary and
proper before it can be shown lost, but proof of its due execution is not
necessary or proper until after a showing of loss.
(3) Loss vs. contents. That a specific document was lost can hardly be
shown without some general reference to its tenor; nevertheless, the rule
being clear that the contents cannot be proved by testimony until loss or the
like is shown, the reference to the tenor of the document in proving its loss
must be no more than is necessary to describe its general features. It is
always possible, however, for the trial Court, on the assurance {post, § 1871)
that loss will later be proved, to admit first the testimony to the document's
contents.'^
§ 1190. Production made; may a Copy also be offered? If the rule is
satisfied by the original's production, may a copy also be used ? On principle,
it may ; for the principle requires merely that the inspection of the original
be made as the preferred source of evidence, and does not exclude other
competent evidence. Ordinarily, a Court would probably exclude a copy as
defective in some collateral matter — as, for (same); 1844, State v. McCoy, 2 Speer 711,
instance, where the objection is a pure stamp- 714 (a question whether the witness had seen
objection — , the judge must, before he admits a certain power of attorney, excluded j rule
the copy, hear and determine whether the ob- repudiated that existence and execution must
jection is well founded. But where the objee- be shown before loss) ; IS.'iS, Bateman v. Bate-
tion goes to show that the very substratum and man, 21 Tex. 432 (loss, then existence and con-
foundation of the cause of action is wanting, the tents, here allowed) ; and compare some of tlie
judge must not decide upon the matter, but re- citations mpra, note 1.
ceive the copy and leave the main question to ^ ig4g^ Fitch v. Bogue, 19 Conn. 28.5, 290
the jury"). (the order of proof, as between existence and
* 1886, Terpening v. Holton, 9 Colo. 306 loss, is not fixed, but depends on the case),
(proof of execution, then of loss, here allowed) ; ''E.g. : 1880, Cross v. Williams, 72 Mo. 577,
1851, Porter i>. Ferguson, 4 Fla. 102, 104, semble 579 (allowing proof of contents, then of loss);
(existence, then loss) ; 1837, Mattocks v. Stearns, and compare the citations supra, note 1.
9 Vt. 326, 334 (the usnal order of evidence is For the question whether an opponent's de-
first the proof of existence, and then the proof struction of a document is an admission of its
of unavailability; no decision given as to pos- terms as the proponent claims them, without
sible reasons for a reversed order). further evidence on his part, see ante, § 291.
» 1901, Laster v. Blackwell, 128 Ala. 143,30 For the question at what stage the opponent's
So. 663 ; 1832, Shrowders v. Harper, 1 Harringt. evidence may be put in on the question of loss,
444 (loss first, then execution and contents) ; etc., see post, § 1870.
1837, Hutchinson v. Gordon, 2 id. 179, semble
1402
§§ 1177-1282] ORIGINAL NOT AVAILABLE. § 1192
superfluous;^ but where a copy was in effect valuable testimony to the
terms of the original — for example, where the original is claimed to have
been altered since the time when the copy was made — , it might properly be
received.^
(c) " Unless it is not feasible"
§ 1192. General Principle ; Unavailability of the Original ; Proof to the
Judge. (1) The essential principle of preferred evidence is that it is to be
procured and offered if it can he had {ante, § 1172). That thought dominates
both the present rule preferring production of the document itself and the
ensuing class of rules preferring one kind of witness to another kind, {post,
§ 1286). The thought is here not that a certain kind of evidence is abso-
lutely necessary, but that a certain kind is to be used if it is available.
If it is not available, then it is not insisted upon :
1831, Porler, J., in Thomas v. Thomas, 1 La. 166, 168 : " That rule which is the most
universal, namely, that the best evidence the nature of the case will admit, shall be pro-
duced, decides this objection; for it [the rule] is only another form of expression for the
idea that when you lose the higher proof you may offer the next best in your power.
The case admits of no better evidence than that which you possess, if the superior proof
has been lost without your fault. The rule does not mean that men's rights are to be
sacrificed and their property lost because they cannot guard against events beyond their
control ; it only means that, so long as the higher or superior evidence is within your
possession or may be reached by you, you shall give no inferioif proof in relation to it."
The various classes of cases with which the following sections deal are
but related instances of this general feature, that production of the writing
itself is not required if production is under the circumstances not feasible.
That the document is lost, detained by the opponent, held by a third person,
physically irremovable, legally irremovable, practically irremovable, or other-
wise unavailable without great inconvenience, — all these situations rest on
the general notion that production is not feasible.
(2) Historically, this liberal and rational principle is not of ancient date.
The more formal notions of the earlier methods of procedure stood on rigid
requirements; and the modifications of these came in only gradually. Most
of them were worked out while the doctrine of profert was still in force
{ante, § 1177). The growth of each one can better be noticed under the
respective heads. It will be seen that the profert, or showing of a deed or
record in court, was dispensable, as early as Lord Coke's time, where the
document was in the hands of a third person, under certain conditions {post,
§ 1211), or where it was detained in the custody of the law (^post, § 1215),
or where it had been destroyed by fire ; but this last was an innovation of
serious importance {post, § 1193) ; and the ordinary case of a lost document,
i. e. one not demonstrably destroyed but simply not to be found, was not
* 1828, Dean v. Carnahan, 7 Mart. N. 8. 258. ing alterations ; the question was whether the
^ 1847, Wilbur v. Wilbur, 13 Mete. 405 (the plaintiff or the defendant was bouud to explain ) ;
plaintiff offered a copy of an execution-levy; post, §1226, n. 7. Compare the use of photo-
the defendant produced the original contain- graphic enlargements of handwriting, ante, § 797.
VOI-. 11. —26 1403
1192
DOCUMENTAEY ORIGINALS.
[Chap. XXXIX
fairly settled, as dispensing with production, until the late 1700s (_jpost,
§ 1193).
(3) The determination of. this preliminary fact of unavailability is for the
Judge, not the jury, upon the general principle {post, § 2550) that questions
of fact preliminary to the admissibility of evidence are for the judge.^
§ 1193. (1) Loss or Destruction; History. It was apparently a step of
some consequence when in 1611, in Dr. Leyfield's Case,-' the Court resolved
that " in great and notorious extremities, as by casualty of fire," profert of a
deed might be dispensed with. Even this concession had to be enforced,
during the ensuing century, by repeated rulings; and other instances of
equally "great and notorious extremity" with fire, such as robbery, were
added only slowly.^ In these precedents, the " loss " of a document is fre-
quently mentioned as equivalent to destruction by fire, in serving as an
excuse ; but the term evidently signified either an actual destruction or a
disappearance through the acts of other persons, and not merely a disappear-
ance through the party's own negligence or a mere impossibility of discover-
ing a mislaid document ; for the treatise- writers aU through the 1700s,^ and
1 1840, Smith v. Sleap, 1 C. & K. 48; 1858,
Glassell v. Mason, 32 Ala. 719 ; 1858, Bagley v.
McMickle, 9 Cal. 430, 449; 1848, Fitch i>.
Bogue, 19 Conn. 285, 290; Ga. Code 1895,
§ 5172 ; 1894, Grimes u. Hilliary, 150 HI. 141,
145, 36 N. E. 977 ; 1834, Page v. Page, 15 Pick.
368, 374; 1819, Jackson v. Frier, 16 John. 193,
195; 1880, Rosendorf «. Hirschberg, 8 Or. 240,
242 (whether the original is lost, is for the
Court; whether the copy is correct, for the
jury) ; 1824, Eure v. Pittman, 3 Hawks 364, 371,
375 (where the secondary evidence, together
with the evidence of loss or snppres.siou, was
conditionally but improperly submitted to the
jury); 1844, Kelly ». Craig, 5 Ired. 129, 133;
1850, Porter v. Wilson, 13 Pa. St. 641, 646;
1853, Tyree v. Magness, 1 Sneed 276, 277 ; 1870,
Southern Express Co. v. Womack, 1 Heisk. 256,
262 (thns the ruling is presumed correct, if tlie
evidence of loss is not embodied iu the record
of evidence).
As to the proper stage for introducing the
opponent's evidence, see post, § 1870. That the
^al Court's discretion governs the sufficiency of
proof of loss, see post, § 1194.
1 1611, Leyfield's Case, 10 Co. 88, 92 ("Yet
in great and notorious extremities, as by casu-
alty of fire, that all his evidences were burnt in
his house, there, if that should appear to the
Judges, they may, in favor of him who has so
great a loss by fire, suffer him upon the general
issue to prove the deed in evidence to the jury
by witnesses, that affliction be not added to
affliction").
' Ante 1661, Anon., Jenkins 19 ("In cases
where charters have been lost by fire, burning
of houses, rebellion, or when robbers have de-
stroyed them, the law in snch cases of neces.sity
allows the proof of charters without shewing
them, y^ecessitns facit ticUum quod alias non
est licitum"); 1664, Knight v. Danler, Hardr.
323 (a bnrut record of conviction; other evi-
dence admitted, the conviction not being the
1401
main issue) ; 1696, R. v. Culpepper, Skinner
673 ("in the case of a deed lost or burnt they
would admit a copy or counterpart of the con-
tents"); 1696, Lynch o. Clerke, 3 Salk. 154,
Holt, C. J. ("burnt or lost"; production ex-
cused) ; 1697, Barley's Case, 5 Mod. 210 (lost
deed; production excused); 1699, Medlicot v.
Joyner, 2 Keble 546, 1 Mod. 4 (a deed burnt ;
production excused); 1699, Underbill v. Durham,
Freem. 509 (a survey burnt in the great fire
of London; copy admitted ) ; 1711, Sir E. Sey-
mour's Case, 10 Mod. 8 (if lost " by inevitable
accident," provable by copy) ; 1722, Robinson v.
Davis, 1 Stra. 526 (robbery of a document in
the mail; copy allowed); 1740, Villiers v. Vil-
liers, 2 Atk. 71 (Hardwicke, L. C, allows an
exemption iu case of a loss and of proof of " the
manner of its being lost ; unless it happens to
be destroyed by fire, or lost by robbery, or any
unforeseen or unavoidable accident, which are
sufficient excuses of themselves"); 1744, Omi-
chund t\ Barker, 1 id. 21, 49 (Hardwicke, L. C. :
" Where the original is lost, a copy may be
admitted"); 1744, Snellgrove v. Baily, 3 id.
214 (upon loss of a deed, copy allowable; but
otherwise of a bond) ; 1754, Saltern v. Melhuish,
Ambl. 247 (" a reasonable account of the deed
being lost or destroyed " suffices) ; 1774, Mayor
of Hull V. Horner, Cowp. 102 (Mansfield,
L. C. J. ; lost deed ; copy admitted).
' Ante 1726, Gilbert, Evidence, 95 ("a man
cannot make his own fault in losing of the
deeds any part of his excuse " ; but to prove
them "burned with fire" suffices); ante 1767,
Buller, Nisi Prius, 252 ("no party shall take
advantage of his own negligence in not keeping
of his deeds, which in all cases ought to be
fairly produced to the court"); 1765, Black-
stone, Commentaries, III, 368 (" if that be posi-
tively proved to be burnt or destroyed (not
relying on any loose negative, as that it cannot
be found, or the like)," then production is
excused).
§§ 1177-1282] LOSS OR DESTEUCTION. § 1104
even later,* predicate of such an excusing loss that it must be without the
party's fault or negligence and not a mere case of inability to find. It is
not until the decision of Read v. Brookman, in 1789,^ that all cases of
genuine loss are assimilated as instances of a general principle. From the
time of that decision, the rule that an actual loss of any sort, making the
document practically unavailable, suffices to excuse production, seems to have
been fully accepted by the profession.^
§ 1194. Same: General Tests for Sufficiency of Proof of Loss; Trial
Court's Discretion. In strictness, no doubt, a " destruction " signifies that
the thing no longer exists, while a "loss" signifies merely that it cannot be
discovered. Nevertheless, for practical purposes, the two come together for
consideration in this rule. In the first place, the moment that the destruc-
tion becomes questionable at all {i. e. when not proved by eye-witnesses of
a burning or tearing), the inquiry is raised whether the search for it has been
sufficient ; and, in the next place, the proof of a loss usually carries the im-
plication that the thing not found has ceased to exist, and thus assimilates
the case to one of destruction. Thus, the great question to which so many
judges have devoted so much pains — the establishment of a test for the suf-
ficiency of proof of loss — includes practically not only the cases of loss in
the narrower sense but also the cases in which destruction is more or less
explicitly put forward as the reason for non-production.^
The question thus resolves itself into an inquiry as to the sufficieiwy of the
search ; and the discovery of the island of Atlantis has occasioned no less
arduous and no less vain efforts than the attempt to frame a fixed and just
rule for the conduct of this inquiry. At the outset of the subject, then, it
should be plainly understood — as great judges have so often told the bar,
and as their successors and the bar have in new generations as often for-
gotten — that there is not and cannot be any universal or fixed rule to test the
sufficiency of the search for a document alleged to be lost. The inquiry must
depend entirely on the circumstances of the case. The following classical
passages expound this doctrine in various forms :
1820, Ahbolt, C. J., in Brewster v. Sewell, 3 B. & Aid. 296 ; libel for charging the plain-
tiff with defrauding an insurance company ; an expired policy was to be proved ; whether
the company or the plaintiff last had the policy was not certain ; the plaintiS and his
attorney had searched his premises in vain; Abbott, C. J. : " All evidence is to be con-
sidered with regard to the matter with respect to which it is produced. Now it appears
» 1810, Swift, Evideuce, 31 ("loss or destruc- that argument is no answer in a Court of Law ;
tion ... by accident, without any fault on his we are not to consider what a Court of Equity
part"). in the plenitude of its power may do"); 1796,
1789, Read ». Brookman, 3 T. R. 151 (a R. v. Metheringham, 6 id. 556 (loss of an order
demurrer to a plea, excusing profert on the of removal of a pauper ; oral proof allowed),
ground that it was " lost and destroyed by time ' It has sometimes been doubted whether a
and accident," was overruled. Bnller, J. : " The lost will or record was provable with the same
rule laid down by Lord Colie [in Leyfield's Case] evidence as other lost documents {post, § 1267).
extends to all cases of extreme necessity ; those A lost negotiable inslrument may be proved by
which he mentions are only put as instances ; copy ; but the restrictions that have been en-
aiid wherever a similar necessity exists, the forced in that connection are matters of sub-
same rule holds. ... It was said that the stantive law.
plaintiff was not without remedy, for that a i As pointed out by Colcock, J., in Teas »•
Court of Equity would give him relief. But Picket, 3 McCord 318, 322 (1825).
1403
§ 1194 DOCUMENTARY ORIGINALS. [Chap. XXXIX
to be a very different thing, whether the subject of inquiry be a useless paper, which may
reasonably be supposed to be lost, or whether it is an important document which the party
might have an interest in keeping, and for the non-production of which no satisfactory
reason is assigned. . . . This being a case, therefore, where the loss or destruction of
the paper may almost be presumed, very slight evidence of its loss or destruction is
sufficient." ^
1846, Pollock, C. B., in Gathercole v. Miall, 15 M. & W. 319, 329 : " The evidence of a
document being lost, upon which secondary evidence may be given of its contents, may
vary much, according to the nature of the paper itself, the custody it is in, and indeed all
the surrounding circumstances of the particular matter before the Court and jury. A
paper of considerable importance, which is not likely to be permitted to perish, may call
for a much more minute and accurate search than that which may be considered as waste
paper, which nobody would be likely to take care of " ; Alderson, B. : " The question
whether there has been a loss, and whether there has been sufficient search, must depend
very much on the nature of the instrument searched for. ... If we were speaking of an
envelope, in which a letter had been received, and a person said, ' I have searched for it
among my papers, I cannot find it,' surely that would be sufficient. So with respect to
an old newspaper which has been at a public coffee-room ; if the party who kept the pub-
lic coffee-room had searched for it there, where it ought to be if in existence, and where
naturally he would find it, and says he supposes it has been taken away by some one, that
seems to me to be amply sufficient. If he had said, ' I know it was taken away by A. B.,'
then I should have said you ought to go to A. B. and see if A. B. has not got that which
it is proved he took away."
■ 1833, Thompson, J., in Minor v. Tillolson, 7 Pet. 99 : " The rules of evidence are adopted
for practical purposes in the administration of justice. . . . The extent to which the rule
is to be pushed, in a case like the present, is governed in some measure by circumstances.
If any suspicion hangs over the instrument, or that it is designedly withheld, a more rigid
inquiry should be made into the reasons for its non-production. But when there is no
such suspicion, all that ought to be required is reasonable diligence to obtain the original."
1880, Depue, J., in Johnson v. Amwine, 42 N. J. L. 451,454: " Proof of loss or destruc-
tion so fully as to exclude every hypothesis of the existence of the original is not required.
The question is always one of due diligence in the effort to procure the original before
evidence of its contents is resorted to. As a general rule the party is expected to show
that he has in good faith exhausted in a reasonable degree all the sources of information
and means of discovery which the nature of the case would naturally suggest and which
were accessible to him. If any suspicion liangs over the instrument, or there are circum-
stances tending to excite a suspicion that it is designedly withheld, the most rigid inquiry
should be made into the reasons for its non -production. . . . Xo absolute rule has been
or can be laid down, defining what search shall be considered as a search prosecuted with
due diligence. The degree of diligence which shall be considered necessary in any case
will depend on the circumstances, — the character and importance of the paper, the pur-
poses for which it is proposed to u.se it, and the place where a paper of that kind may
naturally be supposed to be likely to be found."
1886, Stone, C. J., in Jernigan v. State, 81 Ala. 5S, 60, 1 So. 72: "In accounting for
the absence of a writing, material testimony in the cause, so as to let in secondary evi-
dence of its contents, no universal rule can be declared which will be applicable to every
case. The testimony is addressed to the presiding judge, and he pronounces on its suf-
ficiency. He must be reasonably convinced that it has been lost, destroyed, or is beyond
the reach of the Court's process. A material inquiry in such cases is whether or not there
was a probable motive for withholding this highest and best evidence. Whenever the
Court is able to answer this inquiry in the negative, less evidence will satisfy its con-
» 1824, Best, J., in Freeman v. Arkell, 2 B. & C. 494 ("That principle [of relativity] is fully
established by the case of Brewster v. Sewell ").
1406
§§ 1177-1282]
LOSS OE DESTEUCTIOK
§ 11&4
science than if suspicious circumstances attended the transaction. As a rule, there must
be careful search at the place where it was last known to be, if its place of custody can
be traced or remembered. If not, then such search must be made at any and every place
where it would likely be found."
This general principle of relativity, that the sufficiency of the search depends
upon the circumstances of the case, is sometimes • expressed in the f ofm of a
standard of diligence ; the search, it is said, must appear to have been made
■with such diligence as was reasonable upon all the facts of the case in hand.
The party proving the document must have used all reasonable means to
obtain the original.*
It follows, properly, that the determination of the sufficiency of the search
and in general of the proof of the fact of loss should be left entirely to the
trial Gourfs discretion. This important deduction has been admirably ex-
pounded in the following passage :
1845, Denman, L. C. J., in R. v. Kenilworih, 7 Q. B. 642, 649 ; "I think that we may
collect from R. v. Morton the only rule, namely, that no general rule' exists. The ques-
tion in every case is, whether there has been evidence enough to satisfy the Court before
which the trial is had, that, to use the words of Bayley, J., in R. v. Denio, ' a bonajide and
diligent search was made for the instrument where it was likely to be found.' But this
is a question much fitter for the Court which tries than for us. They have to determine
whether evidence is satisfactory, whether the search has been made botiajide, whether
Saunders, 10 111. 113, 118 (depends on the cir-
cumstances) ; 1858, Simpson v. Norton, 45 Me.
281, 288 (depends " much upon the circum-
stances of the case " ; an instructive illustration
of the search required, — here, for a probate
record) ; 1852, Glenn v. Rogers, 3 Md. 312, 320
(depends miich on the character and value of the
instrument; the offeror must have "in good
faith exhausted in a reasonable degree all the
sources of information and means of discovery
which the nature of the case would suggest and
which were accessible to him") ; 1852, Pickard
V. Bailey, 26 N. H. 152, 167 ("each decision de-
pends so much on the circumstances of the indi-
vidual case that no inflexible rule can be laid
down"); 1819, Jackson v. Frier, 16 John. 193,
196 ("No precise rule" exists, except that
" diligent search and inquiry should be made of
those persons in whose custody the law presumes
the deed to be") ; 1820, Jackson v. Root, 18 id.
60, 73 (pointing out that less search is required
for a document of slight value ; here, an aban-
doned contract) ; 1853, Wells v. Martin, 1 Oh.
St. 386 (" The ruling must depend upon the cir-
cumstances of each particular case ") ; 1854,
Woodward, J., in Bell v. Young, 3 Grant Pa.
175 (" When diligent search has been made un-
successfully for a paper by the person in whose
hands the law presumes it to be, it is in judg-
ment of law a lost paper ") ; 1880, Congdon v.
Morgan, 14 S. C. 587, 593 (" no absolute rule on
the subject " ; search for a deed here held suffi-
cient on the facts) ; 1861, Thrall v. Todd, 34 Vt.
97 (the offeror must show that "he has in good
faith reasonably exhausted all the sources of in-
formation and means of discovery which the
nature of the case would naturally suggest and
which were accessible to him").
3 Eng.: 1815, EUenborough, L. C, J., in R.
V. Morton, 4 M. & S. 48 (" The making search,
and using due diligence, are terms applicable to
some known or probable place or person, in re-
spect of which diligence may be used ") ; 1827,
Gully V. Exeter, 4 Bing. 290, 298 (depends upon
" the importance of the deed and the particular
circumstances of each case ") ; 1847, Alder-
son, B., in Doe v. Clifford, 2 C. & K. 448, 451
(" The law lays down rules to compel the pro-
duction of primary evidence before secondary
evidence can be given ; but if a person has taken
all reasonable means to produce primary evi-
dence, then and then only lie may give second-
ary evidence") ; 1863, Quilter v. Jorss, 14 C. B.
N. s. 747, 750 (reasonable exertions required) ;
Can.: 1856, Tiffany v. McCumber, 13 U. C.
Q. B. 159, 162 (the degree of diligence depends
on the circumstances) ; 1865, Russell v. Fraser,
15 U. C. C. P. 375, 380; U. S.: 1837, Witter v.
Latham, 12 Conn. 392, 399 (must "depend in a
great measure on the circumstances of each par-
ticular case ") ; 1847, Kelsey v. Hanner, 18 id.
311, 316 (same); 1853, Waller v. School Dis-
trict, 22 id. 326, 334 (same) ; 1849, Doe v.
Biggers, 6 Ga. 188, 194 (depends on "the cir-
cumstances of each case, and is therefore left
to the trial Court ; but there are some general
principles ; " the object of the proof is to estab-
lish a reasonable presumption of the loss of the
instrument ; in general, the party is expected to
show that he has in good faith exhausted in a
reasonable degree all the sources of information
and means of discovery which the nature of the
case suggests and which were accessible to him ;
good faith and reasonable diligence are the
requisites, and the diligence must have reference
to the nature of the case"); 1848, Mariner v.
1407
§ 1194
DOCUMENTARY ORIGIJSTALS.
[Chap. XXXIX
there has been due diligence, and so on. It is a mere waste of time on our part to listen
to special pleading on the subject. To what employment shall we be devoted, if such
questions are to be brought before us as matters of law ! " *
§ 1195. Same : Specific Tests and Rulings. Although the greater number
of Courts have from time to time expressed approval of the controlling prin-
ciple that the sufficiency of the search should be left to the trial Court, this
principle is nevertheless often sinned against.
In the first place, there is an occasional tendency to prescribe some spe-
cific method of search in the shape of a fixed rule. It is sometimes said,
for example, that the search must be made in the place where the document
was last known to be, or that inquiry must be made of the last custodian, or
that the last Qustodian must be summoned.^ These requirements are sensible
enough as hints or warnings to the trial Court, but they are not fit to be
erected into fixed rules.
In the second place, most Courts are found now and then deliberately
disregarding the principle of the trial Court's discretion and reviewing on
has a particular place of deposit, as when it is
known to have been in a particnlar place, or
in the hands of a particular person, then that
place must be searched by the party setting np
the loss, or the person produced or accounted
for into whose hands or keeping it has been
traced"); 1882, Rhode v. McLean, 101 id. 467,
470 (bond ; loss sufficiently shown ; rule of call-
ing last possessor held not to he an invariable
one) ; 1891, MuUanphy S. Bank v. Schott, 135
id. 655, 667, 26 N. E. 640 (corporation book;
loss not sufficiently shown ; rule of calling last
possessor applied) ; 18S9, Howe v. Fleming,
123 Ind. 263, 24 N. K. 238 (record; it must
appear " that careful and diligent search was
made in the office and by one so fully ac-
quainted with the office-records and papers as
to malce it probable that if the paper was in
the office he would find it " ; trial Court's dis-
cretion here approved) ; 1880, Brock v. Cot-
tingham, 23 Kans. 383, 388 (execution not
sufficiently shown lost ; the clerk of Court
should have been called or his deposition taken ;
the last custodian's testimony is not always
necessary, except in the above class of cases,
but it should he " the general rule ") ; 1846,
Drake v. Ramey, 2 Rich. 37, 39 ("a search in
the place where it was most likely to be found "
suffices) ; 1853, Pharis v. Lambert, 1 Sneed
228, 230 (warrant last seen in the offeror's
attorney's hand ; the attorney required to be
sworn or accounted for); 1853, Tyree v. Mag-
ncss, ib. 276, 278 (paper in the cause; search
among the clerk's papers, but not by the clerk,
insufficient) ; 1 855, Vaulx v. Merriwether, 2 id.
683 (deed of deceased grantee ; search among
the grantee's papers, without search at the
registry or among the deceased's representa-
tive's papers, insufficient) ; 1870, Girdner v.
"Walker, 1 Heisk. 186, 191 (letters to C, de-
ceased ; inquiry of C.'s representative, etc.,
and search among C.'s papers, required) ; 1851,
Fletcher v. Jackson, 23 Vt. 581, 591 (Red-
field, J. : " The general rule upon this subject
* Accord (though sometimes with qualifica-
tions) : 1886. Jernigan v. State, 81 Ala. 58, 60;
1895, Wilburn v. State, 60 Ark. 141, 143, 29
S. W. 149 ; 1903, Kenniff v. Caulfield, — Cal.
— , 73 Pac. 803 ; 1882, Elwell v. Mersick, 50
Conn. 275; Ga. Code 1895, § 5239; 1871, Wal-
lace V. Tnmliu, 42 Ga. 462; 1880, Phillips v.
Liudsey, 65 id. 139. 143 ; 1876, Graham v. Camp-
bell, 56 id. 258, 250; 1890, Smith v. Brown, 151
Mass. 333, 340, 24 N. E. 31 ; 1871, Stewart v.
People, 23 Mich. 63, 73 (to some extent) ; 1870,
Christy v. Cavanagh, 45 Mo. 375, 377; 1892,
Kleim:iii v. Geiselman, 114 id. 437,443, 21 S. W.
796 ("the trial judge is to determine the suffi-
ciency of the proof") ; 1897, Hume v. Hopkins,
140 id. 65, 41 S. W. 784; 1880, Johuson v. Arn-
wine. 42 N. J. L. 451, 458; 1899, Longstreth
V. Korb, 64 id. 112, 44 Atl. 934; 1821, Leazure
V. HiUegas, 7 S. & R. 313, 323 ; 1845, Fliun o.
M'Gonigle, 9 W. & S. 75 (" Each case must
depend ou its peculiar circumstances ; ... it is
a preliiuiairy inquiry, addressed to the legal
discretion of the judge '') ; 1892, Gorgas v. Hertz,
150 P.i. 538. 540, 2t Atl 756 (" generally left to
the discretion of the trial judge ") ; 1896, Norris
V. Clinlcscales, 47 S. C. 488, 25 S. E. 797; 1901,
Elrod V. Cochran, 59 id. 467, 38 S. E. 122 ; 1853,
Tyree u. Magness, 1 Sneed 276, 277 (" what is
proper diligence must depend much on the cir-
cumstiraces of the case ") ; 1874, Durgin v. Dan-
ville, 47 Vt. 95, 103 (" It is always a question of
law in the given case whether the rule has been
acted on and properly carrie 1 into effect " ; but
" whether the Court below have found facts cor-
rectly from the evidence bearing pi-o and con
upon the existence of the facts of which the rule
is predicable" will not be inquired).
* The following list of such utterances does
not purport to be complete : 1 889, Foster v. State,
88 Ala. 182, 187, 7 So. 185 ("as a rule, careful
search must be made where the document was
last known to be or where it would most likelv be
foand"); 1860, Cook v. Hunt, 24 111. 535,550
(" the rule is well settled that when a paper
1408
1177-1282]
LOSS OR DESTRUCTION.
§ 1195
appeal all the circumstances bearing upon the sufficiency of the search.^
These often lengthy and laborious expositions of the facts and their suffi-
is familiar, that reasonable search shall be
made In the place where the paper is last
known to have been ; and if not found there,
then its present place of deposit shall be searched
out in the usual mode by making inquiry of
those most likely to know its whereabouts, and
that is of course of the person last known to
have had its custody ") ; 1860, Moore v. Beattie,
33 id. 219, 223 (search is to be made by the
last custodian ; sufficiency of search is for trial
Court's discretion).
2 The decisions and statutes are as follows :
England: 1805, Johnson's Case, 29 How. St.
Tr. 437, 7 East 65 (envelopes ; " such prob-
able evidence of the destruction of the thing
as to let in parol evidence of its nature";
here a mass of papers, presumably including
these, were thrown into the fire) ; 1807, Ken-
sington V. Inglis, 8 East 273, 278, 288 (bel-
ligerent trading license, issued by a colonial
governor ; the expiration and return of the
license being shown, the custom to destroy them
as waste paper and the search for this one in the
office, held sufficient) ; 1815, R. v. Morton, 21
M. & S. 48 (search for an indenture of appren-
ticeship, held sufficient) ; 1816, BuUen v. Michel,
4 Dow 297 (copies of old tithe-taxations admitted,
search for the originals proving unavailable) ;
1824, Freeman v. Arkell, 2 B. & C. 494 (in-
formation for an indictment returned ignora-
mus ; search at a clerk's office held sufficient
on the facts) ; 1825, E. v. East Farleigh, -6
Dowl. & K. 147 (indenture of apprenticeship) ;
1827, R. V. Denio, 7 B. & C. 620, 622 (same) ;
1828, R. V. Stourbridge, 8 B. & C. 96 (same);
1831, R. V. Rawden, 2 A. & E. 156 (same) ; 1836,
M'Gahey v. Alston, 2 M. & W. 206, 213 (can-
celled check in the office of a successor as clerk ;
search sufficient on the facts) ; 1837, Fitz v. Rab-
bits, 2 Moo. & Rob. 60 (a lease; search made
three years before, for another purpose, held
sufficient on the facts) ; 1845, R. v. Kenilworth,
7 Q. B. 642 (indenture of apprenticeship) ; 1846,
Gathercole v. Miall, 15 M. & VV. 319, 322 (old
newspaper, left at certain society-rooms ; search
among members of the society not necessary) ;
1846, R. V. Rastrick, 2 Cox Cr. 39 (parcel-
memorandum taken from a shop); 1851, Rich-
ards V. Lewis, 15 Jur. 512 (search not sufficient) ;
1852, R. V. Saffron Hill, 1 E. & B. 93 (search
for a document held not wrongly declared insuf-
ficient by the trial Court) ; 1863, Quilter ». Jorss,
14 C. B. N s. 747 (agreement of shipment, taken
from the bearer in New York by official searchers
for secessionist dispatches) ; 1872, R. v. Hall, 12
Cox Cr. 159 (forged document, in a prosecu-
tion for forgery).
Canada : N. Br. : 1842. Little v. Johnston,
1 Kerr 496 (letters; search held not sufficient) ;
1852, Basterach v. Atkinson, 2 All. 439, 445
(agreement in third person's hands ; loss held
snfficiently evidenced) ; 1855, Lyman v. Cain, 3
All. 259 (note taken up; search held sufficient) ;
N. Sc. : 1859, Barto v. Morris, 4 N. Sc. 90 ; 1876,
Hazell V. Dyas, 11 id. 36, 42.
United States (besides the cases in the
following list, those cited post, § 1225, should
also be consulted, where a similar question some-
times arises in construing the statutes allowing
affidavit-proof of loss of a recorded deed; for
loss of books of entri/, see also §§ 1532, 1557,
post): Alabama: 1832, Mitchell v. Mitchell, 3
Stew. & P. 81, 84 (search by persons unable to
read is insufficient); 1839, Swift v. Fitzhugh, 9
Port. 39, 52 (deed; loss sufficiently shown on
the facts) ; 1849, Herndon v. Givens, 16 Ala.
261, 268 (loss of note sufficiently shown) ;
1857, Johnson v. Powell, 30 id. 113, 115 (exe-
cutions; search held sufficient on the facts);
1861, Preslar i!. Stallworth, 37 id. 402, 406 (by
a clerk of Court, that a note filed was no longer
on file and he did not know what had become of
it, held insufficient) ; 1872, Began v. McCutchen,
48 id. 493 (search for a letter, not sufficient on
the facts) ; 1876, Calhoun v. Thompson, 56 id.
166, 170 (letter left with a magistrate; search
held insufficient) ; 1879, Watson v. State, 63 id.
19, 22 (loss of justicei's records, not sufficiently
proved on the facts) ; 1881, Uonegan ii. Wade,
70 id. 501, 506 (notice of contest in Probate
Court; loss insufficiently proved); 1886, Jerni-
gan V. State, 81 id. 58, 60 (note and mortgage ;
search sufficient on the facts); 1889, Tanner
& D. E. Co. V. Hall, 89 id. 628, 629, 7 So. 187
(search for correspondence, held sufficient On
the facts); 1892, Thorn v. Kemp, 98 id. 417,
422, 13 So. 749 (summons, etc. ; loss, etc., pre-
sumed from trial Court's finding) ; 1893, Boulden
V. State, 102 id. 78, 84, 15 So. 341 (dying decla-
ration in writing; search insufficient); 1897,
Phoenix Ass. Co. v. McAuthor, 116 id. 659, 22
So. 903 (search for a policv held insufficiently
shown) ; 1897, O'Neal v. M'cKinna, ib. 606, 22
So. 905 (search for warrant handed to grand
jury, held insufficient on the facts) ; 1 901 ,
Laster v. Blackwell, 128 id. 143, 30 So. 663
(deed ; loss held sufficiently shown on the facts) ;
Arizona: 1874, Rush v. French, 1 Ariz. 99,
142, 25 Pac. 816 (rules of search laid down) ;
California: 1852, McCann v. Beach, 2 Cal. 25
30 (loss of papers said to have been in a trunk ;
proof not sufficient); 1855, Norris v. Russell, 5
id. 250 (municipal ordinance; notice of tax-
sale; search insufficient); 1855, People v.
Clingan, ib. 389 (certificate of election; loss
sufficiently proved) ; 1856, Folsom v. Scott, 6
id. 460 (deed; search insufficient on the facts) ;
1861, Caulfield v. Sanders, 17 id. 569, 573 (loss
of entry-book not sufficiently shown) ; 1861,
Pierce v. Wallace, 18 id. 165, 170 (search for
lost deed, held sufficient) ; 1867, King v. Rand-
lett, 33 id. 318, 320 (bill of sale; search held
insufficient); 1875, Taylor v. Clark, 49 id. 671
(search for lost deed, not sufficient on the
facts) ; 1895, Samonset v. Mesnager, 108 id.
354, 41 Pac. 337 (letter ; search held sufficient) ;
Colorado: Annot. Stats. 1891, § 1759 (party
offering any deed, etc., "or other writing,"
alleged to have been executed by the oppo-
nent, and lost or destroyed ; contents cannot
be proved " until said party, his agent, or at-
torney, shall first make oath to the loss or
1409
§ 1195
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
ciency are ill-judged expenditures of effort for a Supreme Court. Such
labor, in Lord Denman's emphatic words, is a " mere waste of time." As
destruction thereof, aad to the substance of
the same"); 1873, Hobson o. Porter, 2 Colo.
28, 31 (search for a, contract, held not suffi-
cient) ; 1876, Londoner v. Stewart, 3 id. 47, 49
(search for a power of attorney, held not suf-
ficient) ; 1877, Lyon v. Washburn, ih. 201, 204
(loss of a letter, not sufficiently proved) ; 1883,
WeUs V. Adams, 7 id. 26, 1 Pac. 698 (loss of a
letter, not sufficiently proved) ; 1886, Bruns v.
Clase, 9 id. 225, 227, 11 Pac. 79 (execution;
loss sufficieii'lv shown); 1886, Oppenheimer v.
R. Co., ib. 320", 322, 12 Pac. 217 (railroad tarifi
sheet; loss sufficiently shown); 1886, Billin v.
Henlvel, ib. 394, 400," 13 Pac. 420 (letter; loss
not sufficiently shown); Connecticut: 1830,
State V. DeWolf, 8 Conn. 93, 100 (mere igno-
rance of its whereabouts, without search, insuf-
ficient) ; 1837, "Witter v. Latham, 12 id. 392, 399
(bankrupt's certificate; bankrupt ignorant of its
whereabouts; search not required); 1840, Stod-
dard V. Mi.x, 14 id. 12, 17, 22 (loss sufficiently
shown); 1847, Kelsey o. Hanmer, 18 id. 311,
316 (deed; sufficient search shown); 1849,
White V. Brown, 19 id. 577, 583 (note; loss
insufficiently shown) ; 1 853, Waller v. School
District, 22 id. 326, 334 (subscription-paper;
loss sufficiently shown) ; Delaware; 1841, Arm-
strong V. Timraons, 3 Harringt. 342 (deed; loss
sufficiently shown) ; 1855, State v. Gemmill, 1
Houst. 9, 12 (directions to sheriff; loss suffi-
ciently shown) ; 1855, Bartholomew v. Edwards,
1 Houst. 247, 250 (deed; loss not sufficiently
shown) ; Georgia : in this State a Court rule
governs some of the cases : 1849, Doe 7'.
Biggers, 6 Ga. 188, 194 (execution ; sufficient
search shown) ; 1851, Ellis y. Smith, 10 id. 2.53,
2.59 (same); 1852, Harper v. Scott, 12 id. 12.5,
135 (agreement; sufficient search shown) ; 1853,
Molyneaux v. Collier, 13 id. 406, 413 (execution ;
search not sufficient) ; 1853, Bryan v. Walton,
14 id. 185, 194 (will; search not sufficient);
1857, Allen v. State, 21 id. 217, 218 (bail pro-
cess; search held sufficient); 1858, .Morgan v.
Jones, 24 id. 155, 160 (letters of ailministration ;
loss sufficiently sliown) ; 1858, Poulet ?■. John-
son, 25 id. 403, 410; 1859, Sutton v. McLoud,
26 id. 637, 642 (grant ; search held insufficient) ;
1861, Roe & McDowell v. Doe & Irwin, 32 id.
39,48 (Court rule applied); 1870, Cameron v.
Kersey, 41 id. 40 (Court rule applied) ; 1872,
Jackson i'. Jackson, 47 id. 99, 117 (contents of
letter not produced, excluded | ; 1873, Bruwn ik
Tucker, ih. 485, 492 (trust-deed ; search held
insufficient) ; 1880, Seiael v. Register, 65 id.
662,664 (execution; search insufficient); 1876,
Southern Georgia & F. H. Co. i;. Avres, 56 id.
230. 233 (Court rule applied) ; I88.S, Imboden
V. Mining Co, 70 id. 86, 112 (search for deeds
sufficient); 1886, Xol in i. Pelham, 77 id. 262,
269, 2 S. E. 639 (deed ; search not sufficient) ;
1887, .Silva v. Kankiii, 80 id. 79, 83, 4 S. K.
756 (deeds, etc., sufficiently shown lost) ; 1888,
Georgia V. R. Co. v. Strickland, ib. 777, 779,
6 S. E. 27 (original not accounted for) : 1901,
Lott V. Bnck, 113 id. 640, 39 S. E. 70 (search
held insufficient on the facts) ; Illinois : 1840,
1410
Dormady i: State Bank, 3 111. 236, 238, 244
(note) ; 1841, Palmer v. Logan, 4 id. 56, 60
(notes; loss insufficiently shown); 1848, Mari-
ner V. Saunders, 10 id. 113, 118 (deed; search
held insufficient); 1854, Doyle v. Wiley, 15 id.
576 (contract ; search sufficient on the facts) ;
1859, Holbrook v. Trustees, 22 id. 539 (treas-
urer's bond; loss not sufficiently shown);
1860, Whitehall v. Smith, 24 id. 166 (warrant
and affidavit; loss not sufficiently shown); 1860,
Cook V. Hunt, ib. 536, 550 (contract, loss not
sufficiently shown, because the person last having
custody was not accounted for; see note 1,
supra) ; 1860, Stow r. People, 25 id. 69, 73
(deed; loss not sufficiently shown); 1862, Hol-
brook V. Trustees, 28 id. 187 (bond; loss not
sufficiently shown) ; 1862, Ellis v. Huff, 29 id.
449 (execution ; loss sufficiently shown) ; 1863,
Pardee v. Lindley, 31 id. 174, 184 (deed; search
sufficient); 1864, Owen ti. Thomas, 33 id. 320,
326 (deed ; search apparently held insufficient) ;
1864, Kupfer v. Bank, 34 id. 328, 356 (draft;
loss sufficiently shown) ; 1864, McMillan v.
Bethold, 35 id. 253 (note ; loss sufficiently
shown); 1865, Wells v. Miller, 37 id. 276,280
(title-document ; loss sufficiently shown) ; 1866,
Carr v. Miner, 42 id. 179, 189 (bill and answer;
loss sufficiently shown) ; 1867, Sturges v. Hart,
45 id. 103, 106 (injunction ; loss not sufficiently
shown) ; 1869, Huls v. Kimball, 52 id. 391 (mort-
gage; loss sufficiently proved); 1872, Cliicago
& N. W. R. Co. V. IngersoU, 65 id. 399, 403
(contract; loss not sufficiently shown 1 ; 1872,
Case V. Lyman, 66 id. 229 (letters; loss suffi-
ciently shown); 1873, Swearengeii v. Gulick,
67 id. 208, 212 (deed; loss sufficiently shown);
1875, Wickenkamp v. Wickenkamp, 77 id. 92, 95
(note destroyed ; secondary evidence admitted) ;
1875, Marlowu. Marlow, ib. 6.33 (notes; destruc-
tion sufficiently shown) ; 1875, Williams v. Case,
79 id. 356 (account filed in Court ; loss not suf-
ficiently proved) ; 1876, Hazeu v. Pierson, 83 id.
241 (letter ; loss not sufficiently shown) ; 1876,
Crocker !>. Lowenthal, ib. 579, 581 (deed; lo.ss
sufficiently shown ) ; 1878, Moore v. Wright, 90
id. 470, 472 (note ; loss not sufficiently shown) ;
1878, Protection L. L Co. v. Dill, 91 id. 174
(policy of insurance ; loss sufficiently proved) ;
1880, Taylor i,-. Mclrvin, 94 id. 488, 492 (deed;
loss sufficiently shown) ; 1881, Dagger v. Oglesby,
99 id. 405, 409 (deed ; loss sufficiently shown) ;
1883, Colder v. Bressler, 105 id. 419, 429
(deed ; loss sufficiently shown) ; 1884, Dowden
V. Wilson, 108 id. 257, 261 (copies of burued
depositions used); 1888, Berdel v. Egan, 125 id.
298. 299, 17 N. E. 709 (.leed ; loss sufficiently
shown); 1898, McDonald v. Stark, 176 id. 456,
52 N. K. 37 (loss of recorded town plats, suffi-
ciently shown); 1899, M.avfield u. Turner, 180
id S32. 54 N. E. 418 (declaration of trnst ; loss
sufficiently shown) ; 1899, Harrell v. Enterprise
S.-IV. Bank, 183 id. 538, 56 N. E. 63 (deed; search
.sufficient on the facts); Indiana: 1839, Burke
II. Voyles, 5 Blackf. 190 (award ; not sufficiently
accounted for) ; 1843, McNeely v. Rucker, 6 id.
391 (lease; loss not sufficiently shown); 1843,
§§ 1177-1282]
LOSS OE DESTEUCTION.
§ 1195
a test for the capabilities of a fine instrument, it would be interesting to set
a steam-hammer to crack a nut ; but as an habitual occupation, it would be
Depew V. Wheelan, ib. 485, 487 (note; same) ;
1845, Murray v. Buchanan, 7 id. 549 (execu-
tion; same); 1856, Meek v. Spencer, 8 Ind.
118, 119 (memorandum of sale; search insuffi-
cient) ; 1857, Littler v. Franklin, 9 id. 216
(letter ; same) ; 1859, Little u. Indianapolis, 13
id. 364 (petition to city council ; search suffi-
cient) ; 1859, Cleveland v. Worrell, ib. 545
(note; same); 1861, Carter v. Edwards, 16 id.
238 (same) ; 1862, Steel v. Williams, 18 id. 161,
165 (transcript; same); 1879, Avau v. Frey,
69 id. 91, 93 (lease; destruction by defendant
shown); 1883, Johnston Harv. Co. v. Bartley,
94 id. 131, 134 (contract ; search held sufficient) ;
1884, Langsdale v. Woollen, 99 id. 575, 585
(letter; same); 1884, Curme v. Eauh, 100 id.
247, 253 (mortgage; same) ; 1886, McComas v.
Haas, 107 id. 512, 516, 8 N. E. 579 (letter;
same); 1887, Roehl v. Haumesser, 114 id. 311,
319, 15 N. E. 345 (same) ; 1887, McCormick
H. M. Co. V. Gray, ib. 340, 346, 16 N. E. 787
(contract ; loss sufficiently shown) ; 1888, McNutt
V. McXutt, 116 id. 545, 565, 19 N. E. 115 (same) ;
Iowa: 1851, Steamboat Wisconsin v. Younp;,
3 Greene 268, 271 (search for invoice suffi-
ciently shown); 1861, Horseman w. Todhunter,
12 la. 230, 232 (mortgage; loss not shown);
1868, McCormick v. Grundy Co., 24 id. 382,
384 (loss of note sufficiently shown) ; 1876,
Grimes v. Simpson College, 42 id. 589, 590
(contract; loss not sufficiently shown); 1877,
Crowe V. Capwell, 47 id. 426 (note ; search
insufficient); 1880, Howe M. Co. v. Stiles, 53
id. 425, 5 N. W. 577 (letters; loss insufficiently
shown) ; 1880, Gimbal u. Salomon, 54 id. 389
6 N. W. 582 (letter; loss not shown); 1880,
Foster v. Bowman, 55 id. 237, 240, 7 N. W.
513 (loss of record sufficiently shown) ; 1882,
Hansen v. Ins. Co., 57 id. 741, 742, 11 N. W.
670 (contract of sale ; search insufficient) ;
1883, Louis Cook M. Co. v. Randall, 62 id.
244, 17 N. W. 507 (contract ; loss sufficiently
shown); 1886, Hill w. Anitman, 68 id. 630, 27
N W. 788 (letter ; search held insufficient) ;
1887, Postel V. Palmer, 71 id. 157, 159, 32
N. W. 257 (positive testimony of loss by cus-
todian ; further search unnecessary) ; 1890,
State V. Thompson, 79 id. 703, 705, 45 N. W.
293 (letters; loss not shown); 1895, Waite v.
High, 96 id. 742, 65 N. W. 397 (search insuffi-
cient on the facts) ; 1899, Williams v. Williams,
108 id. 91, 78 N. W. 793 (contract; loss not
sufficiently shown on the facts) ; Kansas : 1 893,
Roberts v. Dixon, 50 Kan. 436, 437, 31 Pac.
1083 (no search at all ; production required) ;
Kentucky: 1819, Hart v. Strode, 2 A. K. Marsh.
115 (bond ; loss sufficiently shown on the facts) ;
1820, Hamit v. Lawrence, ib. 366 (lease; same) ;
1821, Mclntire !-. Funk, Litt. Sel. C. 425,427
(bond ; same) ; 1824, May v. Hill, 5 Litt. 307,
309 (bond ; same) ; 1853, Dickerson v. Talbot, 14
B. Monr. 60, 67 (deed; search sufficient on the
facts) ; 1868, Nutall v. Brannin, 5 Bush 11, 18
(letter; search insufficient on the facts); 1870,
Penny v. Pindell, 7 id. 571, 574 (record ; same) ;
1898, Helton v. Asher, 103 Ky. 730, 46 S. W. 22
(loss not shown) ; Louisiana : Rev. C. C. 1888,
§ 2279 (when an " instrument in writing, con-
taining obligations which the party wishes to
enforce, has been lost or destroyed, by accident
or force, evidence may be given of its contents,
provided the party show the loss either by direct
testimony, or by such circumstances, supported
by the oath of the party, as render the loss prob-
able ") ; here it is difficult to separate the cases
under this statute and at common law and from
those belonging under the other statute post,
§ 1225: 1823, Robertson v. Lucas, 1 Mart. N. s.
187, 189 (agreement ; loss not sufficiently shown,
under the French rule) ; 1829, Tate v. Penne, 7
id. 548, 551 (marriage-contract ; loss sufficiently
shown) ; 1831, Baines v. Higgins, 1 La. 220,
222 (bill of sale; loss not sufficiently proved);
1842, Thomas v. Turnley, 3 Rob. 206, 210
(deeds; loss sufficiently shown); 1847, Prothro
V. Minden Seminary, 2 La An. 939 (corporate
resolution ; loss sufficiently shown ) ; 1 894, Coch-
ran V. Cochran, 46 id. 536, 539, 15 So. 57 (agree-
ment; search sufficient on the facts); 1901,
Willett V. Andrews, 106 La. 319, 30 So. 883
(deed forming a link in the title to land ; ad-
vertisement of loss held not necessary under
Civ. C. §§ 2279, 2280) ; Maine: 1848, Wing v.
Abbott, 15 Shepl. 367, 373 (judicial record;
search not sufficient on the facts); Maryland:
1810, Rusk V. Sowerwine, 3 H. & J. 97 (power
of attorney ; search insufficient on the facts) ;
1814, Ringgold v. Galloway, ib. 451, 455 (loss of
commissions, etc., not sufficiently proved) ; 1830,
State V. Wayman, 2 G. & J. 254, 283 (search for
Chancery records, not sufficient on the facts) ;
1843, MuUiken v. Boyce, 1 Gill 60, 66 (horse-
pedigree ; search held insufficient on the facts) ;
Massachusetts : 1844, Foster v. Mackay, 7 Mete.
531, 537; Michigan: 1850, Higgins v. Wat-
son, 1 Mich. 428, 431 (note; loss sufficiently
shown); 1868, Hogsett v. Ellis, 17 id. 351,
375 (records of a justice; loss not sufficiently
shown) ; 1871, Stewart v. People, 23 id. 63,
73 (letter; search held sufficient); 1877, Bot-
tomley v. Goldsmith, 36 id. 27 (letter; search
held sufficient); 1877, King v. Carpenter, 37
id. 363, 369 (deed; loss sufficiently shown);
1878, People v. Gordon, 39 id. 259, 262 (loss
of justice's ffiea sufficiently shown) ; 1879,
McKeown v. Harvey, 40 id. 226 (contractor's
proposals; search sufficiently shown); 1883,
Holcomb V. Mosher, 50 id. 252, 257, 15 N. W.
129 (deed; search held sufficient); 1885, Hufi
V. Hall, 56 id. 456, 457, 23 N. W. 88 (letter ;
loss sufficiently shown) ; 1886, Dalton's Appeal,
59 id. 352, 355, 26 N. W. 539 (petition for guar-
dian ; loss sufficiently shown ) ; 1 890, Shonler v.
Bonander, 80 id. 531, .534, 45 N. W. 487 (agree-
ment; proof of loss "unsatisfactory"); 1895,
Stanley v. Anderson, 107 id. 384, 6.5' N. W. 247
(contract recorded with a justice of the peace ;
loss sufficiently shown); Minnesota: 1861,Guerin
!■. Hunt, 6 Minn. 375, 380 (letter; search not
sufficiently shown) ; 1867, Thayer v. Barney, 12
id. 502, 510, 513 (account-book and receipt; loss
sufficiently shown) ; 1871, Board v. Meagher, 17
.1411
§ 1195
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
plain folly. The Supreme Courts of Judicature spend overmuch time in
cracking nuts. Long days of time and tedious pages of reports have been
id. 412, 422 (order for brick; search snflSciently
showu) ; 1881, Molm v. Barton, 27 id. 530, 532,
8 N. W. 765 (bill of sale; loss sufficiently
shown) ; 1886, Nelson v. Land Co., 35 id. 408,
410, 29 N. W. 121 (sheriff's certificate; search
not sufficiently shown); 1896, Slocum ». Bracy,
65 id. 100, 67 N. W. 843 (search held sufficient) ;
1896, Windom v. Brown, ib. 394, 67 N. W. 1028
(search held sufficient) ; 1901, Hurley v. West
St. Paul, 83 id. 401, 86 N. W. 427 (ancient copy
of surveyor's report, not admitted where original
was not searched for) ; Mississippi: 1838, Doe
V. M'Caleb, 2 How. 756, 767 (land-office certifi-
cate; search not sufficient) ; 1846, Smith v, R.
Co., 6 Sm. & M. 179, 184 (receipt; loss suffi-
ciently shown) ; 1854, Parr v. Gibbons, 27 Miss.
375, 378 (note ; loss insufficiently shown) ; Mis-
souri: 1837, Miller r. Wells, 5 Mo. 6, 10 (bond ;
search held sufficient) ; 1850, Finney v. College,
13 id. 266 (deposition shown to be lost or mis-
laid) ; 1852, Lewin v. Dille, 17 id. 64, 69 (agent's
instructions, not accounted for) ; 1862, Gould v.
Trowbridge, 32 id. 291, 293 (draft; loss suffi-
ciently shown) ; 1874, Parry v. Walser, 57 id.
169, 172 (destruction of records sufficiently
shown); 1874, Shaw v. Pershing, 57 id. 416,
421 (loss of deed sufficiently shown) ; 1879,
Studebaker Mfg. Co. v. Dickson, 70 id. 27:2
(contract ; search sufficiently shown) ; 1884,
Blondeau !'. Sheridan, 81 id. 545, 556 (con-
tract ; search held insufficient) ; 1890, Henry
V. Diviney, 101 id. 378, 383, 13 S. W. 1057
(letter ; loss sufficiently shown) ; Montana :
1894, Brooke v. Jordan, 14 Mont. 375, 378, 36
Pac. 450 (deed; search held sufficient); Ne-
braska : 1886, Post V. School District, 19 Nebr.
135, 26 N. W. 911 (bond; loss not sufficiently
shown) ; 1886, Murphy v. Lyons, ib. 689, 28
N. W. 328 (affidavit ; loss not sufficiently
shown); 1890, Myers v. Beals, 30 id. 280,
287, 46 N. W. 479 (exhibit at former trial;
loss not sufficiently shown); 1895, Baldwin v.
Burt, 43 id. 245, 252, 61 N. W. 601 (mortgage;
loss sufficiently showu) ; 1896, Kegier v. Shreck,
47 id. 667, 66 N. W. 618 (legal papers in a case;
loss sufficiently shown); Nevada: 1869, Mi-
lenovich's Estate, 5 Nev. 160, 186 (order of
Probate Court ; loss sufficiently shown) ; New
Hampshire : 1850, Forsaith v. Clark, 21 N. H.
409, 417 (loss of charters, held sufficiently
shown); 18.52, Pickard v. Bailey, 26 id. 152,
166 (list of lands; search sufficient); New
Jersei/ : 1820, Sterling v. Potts, 5 N. J. L. 773,
776 (search held insufficient) ; 1826, Fox v.
Lambson, 8 id. 275, 278 (court records; searcli
insufficient); 1832, Kingwood t'. Bethlehem. 13
id. 221, 226 (indenture of apprenticeship; search
held sufficient) ; 1832, Smith v. Axtell, 1 N. J.
Eq. 494, 498 (written agreement between heirs
and administrators; search held insufficient);
1365, Clark v. Hornbeck, 17 id. 430, 450 (action
against an executor on a note given by him
to the testator; search held sufficient); 1880,
Johnson v. Arnwine, 42 N. J. L. 451, 459 (com-
plaint and warrant la.st seen with the grand
jury; search held sufficient) ; New York: 1813,
141
Jackson v. Neely, 10 John. 374, 376 (deed said
to have been in a house destroyed by fire ; suffi-
cient search) ; 1814, Jackson v. Woolsey, 11 id.
446, 454 (deed; search held sufficient); 1825,
Dan V. Brown, 4 Cow. 483, 491 (will; search
held insufficient); 1826, Jackson v. Betts, 6 id.
377, 383 (will ; search held sufficient) ; s. c. app.
9 id. 208, 222, 6 Wend. 173, 176 (same) ; 1826,
Francis v. Ins. Co., 6 Cow. 404, 416 (British
Consul's permit at Antigua; search held suffi-
cient) ; 1830, Jackson v. Russell, 4 Wend. 543,
547 (will ; search in the Surrogate's Office held
sufficient) ; 1865, Leland v. Cameron, 31 N. Y.
115, 120 (lost execution; search held sufficient) ;
North Carolina : 1844, Kelly v. Craig, 5 Ired.
129, 133 (destruction not sufficiently shown) ;
1895, Blair v. Brown, 116 N. C. 631, 21 S. E.
434 (search held sufficient) ; 1902, Smith v.
Garris, 131 id. 34, 42 S. E. 445 (certain legal
papers; search held insufficient) ; North Dakota:
1901, McManus v. Commow, 10 N. D. 340, 87
N. W. 9 (loss of deed, sufficiently shown) ; Ohio :
1833, Taylor v. Colvin, Wright 449 (note ; loss
sufficiently shown); Oklahoma: 1893, Olds v.
Congor, 1 Okl. 232, 238, 32 Pac. 337 (search
held sufficient) ; Oregon : C. C. P. 1892. § 691 (2)
(production excused when the original " cannot
be produced by the party by whom the evi-
dence is offered, in a reasonable time, with
proper diligence, and its absence is not owing
to his neglect or default"); 1881, Howe v.
Taylor, 9 Or. 288 (undertaking as clerk ; loss
sufficiently shown) ; 1902, Harmon v. Decker,
41 id. 587, 68 Pac. 11 (search held not suffi-
cient) ; Pennsi/lvania : 1813, Caufman v. Con-
gregation, 6 ijinu. 59, 63 (written agreement;
search held sufficient) ; 1814, Meyer v. Barker,
ib. 228, 234 (loss sufficiently proved) ; 1842,
Weir ». Hale, 3 W. & S. 291, 294 (either due
diligence or irretrievable loss must be shown) ;
1850, Porter v. Wilson, 13 Pa. St. 641, 649
(search held insufficient) ; 1 854, Bell u. Young,
1 Pa. 175 (search held sufficient for promissory
note) ; 1870, Krise v. Neason, 66 Pa. 253, 260
(" when a written agreement was placed by
both parties in the hands of a common friend,
who afterwards died, diligent search among his
papers is all that is required") ; 1875, Ameri-
can Life Ins. Co. v. Rosenagle, 77 id. 507, 514
(slight evidence of the loss of ordinary letters
between relatives, held sufficient) ; Sotith Caro-
lina : 1803, Anderson v. Hobson, 2 Bay 495, 497
(bill of exchange from over seas; evidence of
loss at sea held sufficient) ; 1814, Belton v.
Briggs, 4 De S. 465 (evidence of loss of deed,
held sufficient); 1818, Sims v. Sims, 2 Mill
Const. 225 (search for note, held insufficient);
1824, North r. Dravton, Harp. Eq. 34, 41, -15
(loss of bond held sufficiently evidenced) ; 1830,
Stockdale v. Young, 3 Strobh. 501, 506 (evidence
of loss of old deed, held sufficient) ; 1839, Smith
!•. Smith, Rice 232, 234, 237 (search for judicial
records, sufficient) ; 1852, McQueen v. Fletcher,
4 Rich. Eq. 152, 155, 159 (search for judicial
records, held sufficient) ; 1852, Floyd r. Mintsey,
5 Rich. 361, 365, 372 (search held insufficient;
§§ 1177-1282]
LOSS OE DESTRUCTION.
§ 1196
given up to investigations of detailed facts, under the present principle,
resulting in rulings which never ought to be of any significance as prece-
dents. It is to be hoped that this practice will fall into disuse.
§ 1196. Same : Kinds of Evidence admissible in Proving Loss (Circumstan-
tial, Hearsay, Admissions, Affidavits, etc.). The ordinary principles otherwise
established apply equally to the evidence used to prove the loss of a docu-
ment. Certain kinds of evidence, however, occasionally raise specific ques-
tions concerning their use for the present purpose.
(1) Circumstantial evidence is of course proper;' it is in truth the com-
monest, for the evidence of a loss is usually reducible to the circumstance
that a document after proper search has not been seen.^
(2) If the circumstances are such that the Court can raise a presumption
of loss, as matter of law (post, §§ 2522, 252.3), then this suffices to establish
the loss ; the lapse of time is a circumstance often thus availed of.^ But it
that the last possessor was dead and had lived
out of the jurisdiction did not excuse a failure
to inquire of his representatives) ; 1857, Berry
V. Jourdan, 11 Rich. 67, 76 (evidence of loss of
deed, held sufScient) ; 1892, Brooks v, McMeekin,
37 S. C. 285, 299, 15 S. E. 1019 (search not shown
sufficient) ; Tennessee : 1871, Quinby ». N. A. C.
& T. Co., 2 Heisk. 596 (insuiiicient proof of loss,
on the facts) ; 1900, Whiteside v. Watkins, —
Tenn. — , 58 S. W. 1107 (same) ; 1901, David-
son L. Co. V. Jones, — id. — , 62 S. W. 386
(same) ; Texas; 1854, Clifton v. Lilley, 12 Tex.
130 (deed; loss sufficiently shown) ; 1863, White
V. Burney, 27 id . 50 (deed ; loss sufficiently
shown); 1883, Vandergriff v. Piercy, 59 id.
371 (deed; loss insufficiently shown; last cus-
todian's declarations insufficient ; he must be
called or accounted for) ; 1885, Continental Ins.
Co. V. Pruitt, 65 id. 125, 128 (schedule of prop-
erty; loss sufficiently shown); 1889, Ruby v.
Van Valkenburg, 72"id. 459, 468, 10 S. W. 514
(judgment-record ; loss sufficiently shown) ; 1890,
Mugge V. Adams, 76 id. 448, 450, 13 S. W. 330
(letter; loss not shown) ; 1895, Cabell v. Hollo-
way, 10 Tex. Civ. App. 307, 31 S. W. 201 (search
held sufficient); United States: 1806, U. S. v.
Lambell, 1 Cr. C. C. 312 (warrant; loss suffi-
ciently shown); 1806, U. S. v. Wary, ib. 312
(warrant; loss not sufficiently shown); 1822,
Bouldin v. Massie, 7 Wheat. 122, 131, 154 (loss
of assignment sufficiently shown) ; 1824, Riggs
V. Tayloe, 9 id. 483, 486 (" If he did not tear it
up, then it has become lost or mislaid," held
sufficient); 1826, Riggs v. Tayloe, 2 Cr. C. C.
687, 689 (contract; loss not sufficiently shown) ;
1833, Minor v. Tillotson, 7 Pet. 99 (land-grant;
search sufficiently shown) ; 1835, Winn v. Pat-
terson, 9 id. 663, 676 (power of attorney ; loss
sufficiently shown); 1836, U. S. w. Lodge, 4 Cr.
C. C. 673 (larceny of bank-notes; that they had
been passed away, held sufficient evidence of
non-availability) ; 1865, Simpson v. Dall, 3 Wall.
460 (letters; loss not sufficiently shown) ; 1892,
Scanlan v. Hodges, 10 U. S. App. 352, 361, 3
C. C. A. 113, 52 Fed. 354 (loss not proved);
1902, Dupee ». Chicago H. S. Co., 54 C. C. A.
426, 117 Fed. 40, 44 (search held sufficient);
1413
Vermmt: 1831, Bliss v. Stevens, 4 Vt. 88, 92
(search for an execution, held sufficient); 1834,
Braintree v. Battles, 6 id. 395, 399 (search for a
charter in the proper place of custody, held suf-
ficient) ; 1839, Viles o. Moulton, 11 id. 470, 474
(search for lost note, held insufficient); 1842,
Royalton v. R. & W. T. Co., 14 id. 311, 323
(contract with a town; search held insufficient) ;
1861, Thrall v. Todd, 34 id. 97 (assignment of
claim ; search held insufficient) ; 1863, Rutland
& B. R. Co. V. Thrall, 35 id. 536, 547 (newspaper
notice; proof of loss of whole edition not neces-
sary ; diligent search for a, copy, sufficient) ;
Washington : 1898, State v. Erving, 19 Wash.
435, 53 Pac. 717 (letter ; loss sufficiently proved) ;
Wisconsin: 1858, Conkey v. Post, 7 Wis. 131,
137 (note; loss sufficiently shown); 1880, Mul-
lenback v. Batz, 49 id. 499, 501, 5 N, W. 942
(letter used at a former trial; loss sufficiently
shown).
1 1831, Swift K. Stevens, 8 Conn. 431, 437;
1825, Peay v. Picket, 3 McCord 318, 322.
^ See the opinion of Colcock, J., in Peay v.
Picket, supra. That direct testimony to "the
document s destruction is not needed, is ap-
parently the meaning of Courts declaring that
the loss need not be proved with absolute certainty ;
for example: 1882, Elwell v. Mersick, 50 Conn.
275 (a "reasonable presumption," even though
b)r slight evidence) ; 1827, Taunton Bank v.
Richardson, 5 Pick. 436, 441 (evidence of "ab-
solute, irrecoverable loss " not necessary ; " all
due diligence having been used in searching for
it" is enough) ; 1868, Corbett v. Nutt, 18 Gratt.
624, 633, 638 (proof beyond possibility of mis-
take, not required; a moral certainty is suf-
ficient). Compare the cases iox lost wills (post,
§ 2106).
3 1843, R. V. Hinley, 1 Cox Cr. 13 (a hamper
used for sending goods six months before;
destruction here held doubtful) ; 1845, Pond v.
Lockwood, 8 Ala. 669, 676 (notes paid off and
received by the maker several years before, pre-
sumed destroyed); 1782, Morris v. Vanderen, 1
Dall. 64 (official list of original purchasers of
land from William Penn, received, and pro-
duction of their deeds not required) ; 1774,
§ 1196
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
should be noted that, when the presumption of an unknown lost grant (post,
§ 2522) is appealed to, it does not avail to excuse the party from accounting
for a specific deed by proving its loss.*
(3) The hearsay statement of a custodian or other person who has been
applied to in the course of a search may be regarded in two aspects, (a) It
may be distinctly offered as evidence that the assertion contained in it — the
fact of loss or of search — is true, and is thus obnoxious to the Hearsay rule,
and inadmissible ; * though one Court has ruled otherwise on the ground that
for proof to the judge {post, § 2550) the ordinary rules do not apply.^ (b) But
it may also and better be regarded as merely one of the circumstances enter-
ing into the sufficiency of the search, i. e. not as testimony to the fact asserted,
but as a circumstance tending to show that the searcher has not failed in
reasonable diligence in not proceeding further (upon the principles of § 245,
ante, § 1789, post). This view has been explained and recognized with ap-
proval in England,'^ and finds some favor in this country also.^
(4) Testimony by the party himself stands upon the same rules as other
Hurst ». Dippe, lb. 20, semble (same, received) ;
1823, Kingston v. Lesley, 10 S. & R. 383, 387
(same ; the deeds presumed unavailable) ; 1840,
Tilghman v. Fisher, 9 Watts 441, 444 (loss of
certain old papers presumed from lapse of
time); 1871, Eddy v. Wilson, 43 Vt. 362, 375
(notice of sale postsd, more than a year before ;
loss presumed) ; Va. Code 1887, § 3377 (where
any paper was required to be filed in certain
public offices before April 10, 1865, if it cannot
be found on search there and probable cause
exists for believing it destroyed, two years'
exercise of the right or franchise depending on
it shall on certain conditions be prima Jacie
evidence of the filing of such paper).
* 1845, Reynolds i: Qnattlebum, 2 Rich. 140,
144.
» 1858, Bratt v. Lee, 7 U. C. C. P. 280 (testi-
mony to a reported search by the plaintiff and his
wife, who declared themselves to the witness
to be unable to find, held insufficient) ; 1880,
Brock B. Cottingh:im, 23 Kans. 383, 388 (clerk
of Court's statements during search for execution
by H. and clerk, excluded ; his deposition or
testimony should be had); 1825, Governor «.
Barkley, 4 Hawks 20 (declarations of the living
administrator of the deceased possessor of the
document, not admitted to show the loss) ; 1886,
Justice i;. Luther, 94 N, 0. 793, 798 (depositary's
hearsay reply, to the witness searching, that the
document was lost, held insufficient) ; 1 844, Cath-
cart V. Gibson, 2 Speer 661 (search and hearsay
declarations of last possessor's search, insuffi-
cient); 1849, Dunn i-. Ohoate, 4 Tex. 14, 18
(hearsay statements of the custodian, not suffi-
cient; he must be called if living).
' 1850, Hiffgins v. Watson, 1 Mich. 428, 432
(hearsay confession of thief of document re-
ceived, " this being a preliminary inquiry, and
the testimony being given to the Court aiid not
to the jury ').
' 1845, Denman, L. C. J., in R. v. Kenilworth,
7 Q. B. 642, 649 (disapproving R. v. Denio, infra ;
"It would, I think, have been quite enough to say
that the evidence of a bona fide search was such
as might satisfy the Sessions [trial Court]. . . .
When the party got a reasonable account which
showed that the documents conld not be found,
why was he to go farther 1 " ; Williams, J. : " If
you let that [declaration] in, there is quite
enough to satisfy a reasonable man that the
document is lost. If you do not, the search
has been carried as far as, upon the admitted
evidence, it can go. ... It is not neces.sary to
call the person who gives the answer, in order
to show why he gave it ") ; 1 858, R. ;'. Braintree,
1 E. & E. 51, 57 (indenture of apprenticeship;
the inquiries to and .inswers by persons likely
to have the document, held admissible; Camp-
bell, L. C. J : " Any questions may be put for
the purpose of showing that there has lieen a
reasonable and bona fide search ; though the
answers to them may not be evidence in the
ultimate question before the Court ").
The rulings in England and Ireland, how^ever,"
are not harmonious : 1815, R v. .Morton, 4 M. &
S. 48, semhle (admitted) ; 1827, R. ,■. Denio, 7 B.
& C. 620 (excluded) ; 1828, R. c. Stourbridge,
Sid. 96 (admitted); 1834, R. v. Rawden, 2 A.
& E. 156 (not admissible, except when made by
one in possession of the document) ; 1852, R. i.
Saffron Hill, 1 E. & B. 93, 97 (whether admis-
sible to show that search in other places was
unnecessary, not decided) ; 1876, Smith i'. Smith,
10 Ir. R. Eq. 273, 276, 280 (inquiries and replies
admitted). Compare the rule for a search for an
attesting witness {post, § 1313).
' 1852, Harper v. Scott, 12 Ga. 125, 136
(admitted to lay. the foundation for proof of
search, the declarant being dead) ; 1868, Corbett
». Nutt, 18 Gratt. 624, 633, 6.35 inquiry for will
and probate at the clerlt's office, the clerk at the
request of the witness making search and report-
ing the documents to have been among records
burnt; held sufficient; thoush in case of sus-
picion the calling of tho clerk might have been
required).
1414
§§ 1177-1282] LOSS OR DESTRUCTION. § 1196
testimony, except in two respects, (a) When the disqualification of a party
as witness prevailed {ante, § 577), it was often an especial hardship to satisfy
the requirements of the present rule, because the party would commonly be
the only person able to give information of the loss of his document. Ac-
cordingly an exception was established in almost every jurisdiction, by which
the party, in spite of his disqualifying interest, was allowed to testify to the
fact of loss ; the exception being based by some Courts on the necessity of
the case, by others on a broad principle that upon incidental matters prov-
able to the judge the disqualification did not apply.^ "With the general
removal of parties' disqualifications (ante, § 577), this exception ceased to exist
as such ; though it would on principle still apply for disqualified survivors
(ante, § 578). (b) It became common, in some jurisdictions, to admit merely
the party's affi,davit for the above purpose ; thus establishing an exception not
only to the rule of disqualification, but also to the hearsay rule {post, § 1709).^"
"When, therefore, in many jurisdictions, statutes made a certified copy of a
recorded deed admissible to prove the execution and contents of the deed,
if the original was unavailable, these statutes usually continued the old prac-
tice by providing that the party's affidavit should be admissible to prove the
loss {post, § 1225). The disqualification of parties was by this time removed,
so that they might have testified in person on the stand ; and the affidavit-
allowance was thus only an exception to the hearsay rule. The questions
arising under these statutes (which usually allow the affidavit to prove that
the document is either lost or out of the party's control) are considered
under the subject of registered deeds {post, § 1225). The statutory excep-
tion, being in strictness only a survival of an exceptional common-law
practice, of course does not authorize the use of a stranger's affidavit {post,
§ 1708).
It was sometimes contended that this affidavit of the party was indispen-
sable, and not merely allowable ; " but this misunderstanding of the principle
was generally repudiated.^
(5 ) Proof of the loss may also be made by the opponent's admission. ^ It may
» The following cases are only a few illus- the record-plaintifE being a nominal party only
trating the principle : 1858, Bagley v. Eaton, 10 and having absconded) ; 1849, Hale v. Darter
Cal. 126, 146; 1865, Clark ;.. Hornbeck, 17 N.J. 10 Humph. 92 (afSdavit by the party himseli
Eq. 430, 450; 1814, Butler v. Warren, 11 John. is not essential, if other suificient evidence is
57 (contra, but repudiated in the next case) ; given) ; 1831, Doe v. V^inn, 5 Pet. 233 242 (a
1819, Jackson v. Frier, 16 id. 193, 195; 1822, rule of Court of December, 1823, required the
Chamberlain v. Gorham, 20 id. H4, 146; 1830, party's affidavit that the document was lost or
Betts V. Jackson, 6 Wend. 173, 177; 1841, destroyed and not in his control, as indispensable
Woodworth v. Barker, 1 Hill 172 (limiting the in addition to other evidence of loss; held, that
use) ; 1847, Vedder !•. Wilkins, 5 Den. 64. if sufficient other evidence of loss existed, the
"See, for example: 1844, Bachelder v. rule of Court requiring additionally the affidavit
Nutting, 16 N. H. 261, 264; 1852, Neally v. was improper; Johnson, J., diss.).
Greenough, 25 id. 325, 329; 1828, Tayloe The rule regardinK the necessity of an affidavit
V. Biggs, 1 Pet. 591, 596; and the cases cited of loss m going to equity for relief is not within
post. § 1709. the present purview.
'^ 1791, Blanton c. Miller, 1 Hayw. 4 ("be- " 1895, Pentecost ,.. State, 107 Ala. 81, 18
cause no other can safely swear his want of So. 146.
possession ). For the case of the opponent's men possession
1859, Sutton ». McLoud, 26 Ga. 637, 642; and loss, Snd the necessity of giving notice in
1844,Foster».Mackay. 7 Mete. 531,537 (treated such a case, see pos«, § 1209. For the opponent's
as not invariably requisite; here dispensed with, admission of the contents, see post, § 1255.
1415
§ 1196 DOCUMENTARY ORIGINALS. [Chap. XXXIX
also be made by the record of judgment in a statutory proceeding to establish
the contents of a lost document.^*
(6) In a criminal prosecution for larceny, it is enough to prove the fact of
the loss of the document by stealing, in order to proceed to establish its con-
tents without production ; it is not necessary to prove first the stealing by
the defendaut.^^
§1197. Same: Discriminations between Loss and other situations. (1) The
statutory conditions on which a certified copy of a registered deed will be
admitted include usually other things than loss ; and these statutory condi-
tions can best be examined in another place (post, § 1225). (2) The fraud-
ulent suppression or destruction of a document by the opponent, which puts
the proponent in the same position as a loss (with reference to the non-neces-
sity of giving notice) may be considered under the head of detention by the
opponent (post, §§ 1207, 1209). (3) On a charge of larceny, so far as the
possession is assumed to be in the defendant, the case is governed by the rules
applicable to detention by the opponent {post, §§ 1200, 1207). (4) The doc-
trines of the substantive law of negotiable instruments, in regard to the con-
ditions upon which an action or a criminal prosecution may be maintained
upon them, are not here involved.' (5) Certain statutes providing that lost
pleadings or documents of title may be supplied by affidavit seem to concern
only the providing of a copy for purposes of profert or of adjudication, and
not to alter the ordinary rules as to proof of loss.^
§ 1198. Same: Intentional Destruction by Proponent himself. If it should
appear that the party desiring to prove a document had himself destroyed it,
with the object of preventing its production in court, the evidence of its
contents, which he might then offer, could properly be regarded as in all
likelihood false or misleading (ante, § 291). It is with this extreme case in
mind that a few Courts have inconsiderately laid down an unconditional
rule that the proponent's intentional destruction of the document bars him
from evidencing its contents in any other way :
1824, Ewing, C. J., ia Broadwell y. Stiles, 8 N. J. L. 58, 60: "He who voluntarily,
without mistake or accident, destroys primary evidence thereby deprives himself of the
production and use of secondary evidence. The best evidence is required; and if a
" For the sufficiency of a copy thus estab- 11, §§ 1475-1485, 4th ed.; 1901, Cross b. People,
listed, see post, §§ 1660, 1682; for the prefer- 192 111. 291, 61 N. E. 400 (forgery of a lost
ence, if any, for such a copy, see post, §§ 127.3, instrument may be prosecuted). In some States
1347. there is a rule of pleading requiring a count to
For the use of recitals in old deeds as evidence set up a lost deed; 1900, Hatcher v. Hatcher, 127
of contents, see post, §§ 1573, 2143. N. C. 200, 37 S. E. 207 (at least, where the proof
" The following ruling is of course absurd: is not by certified copy). For the requirement
1864, R. V. Farr, 4 F. & F. 336 (burglary, and as to lost wills and records, see post, §§ 1267,
stealing a ring; a question about the inscription 2106.
on the ring.not allowed ; Counsel : " It is proved * S. C, St 1870, C. C. P. 1882, c. 12, § 419 (if
to have been stolen, so that we cannot produce original *'j)leadiDg or paper " is lost. Court may
it"; Channell, B. : "It is not proved to have authorize use of copy); Tenn. St. 1819, c. 27,
been stolen by the prisoner, which indeed is the §§ 1-4, Code 1896, §§ 5694-6 (any instrument
question to be tried "). lost or wronrfuUy detained by the opponent
^ See, for example : 1809, Pierson v. Hutch- " may be supplied " by affidavit ; if put in issue,
iuson, 2 Camp. 211 (action on a lost negotiable may be proved by "competent evidence of its
instrument) ; 1827, Hansard v. Robinson, 7 B. & contents ).
C. 90 (same) ; Daniel, Negotiable Instruments,
1416
§§ 1177-1282]
INTENTIONAL DESTEUCTION.
§ 1198;
party, having such in his power, voluntarily destroys it, the law knows no relaxation for
hira, whatever may be given to accident or misfortune. ... To admit of evidence under
such circumstances is as repugnant to principle as to deny a party the crosa-examination
of the witnesses of his adversary."
But it is obvious that there may be many cases of intentional destruction
which do not present the above extreme features. The intentional destruc-
tion may clearly appear to have been natural and proper, or it may be merely
open to the bare suspicion of fraudulent suppression ; and in such cases the
evidence of its contents should be received, subject to comment on the cir-
cumstances.^ The more liberal view is represented in the following passages :
^ The cases on both sides are as follows:
Eng. : 1805, K. v. Johnson, 7 East 65, 66,
29 How. St. Tr. 437 (envelopes destroyed by
fire, after opening, in the ordinary course of
business ; contents shown) ; 1807, Kensington
V. Inglis, 8 East 2/3, 278, 288 (similar ; expired
trading license) ; Ala. : 1892, Rodgers o.
Crook, 97 Ala. 722, 725, 12 So. 108 (throwing
away a letter containing opponent's admissions;
secondary proof allowed) ; 1896, Miller v. State,
110 id. 68, 20 So. 392 (bastardy; destruction of
a letter from the defendant by the coniplainant
at his request, held not to exclude oral evi-
dence); Bracken v. State, 111 id. 68, 20 So.
636 (same) ; Cat. : 1858, Bagley v. McMickle,
9 Cal. 430, 435, 448 (destruction by consent;
semble, production not necessary on the facts ;
see quotation supra); 1858, Bagley v. Eaton,
10 id. 126, 148 (the motive controls; if done
under erroneous impression as to its effect,
under circumstances free from suspicion of
intended fraud, production not required) ; Colo. :
1875, Sellar v. Clelland, 2 Colo. 532, 535, 546
(fraudulent purpose must be negatived ; here, a
destruction by joint act of plaintiff and defend-
ant, held not to exclude evidence of contents) ;
1883, Breen v. Richardson, 6 id. 605 (self-
destroyed articles of partnership, allowed on
the facts to be proved) ; Conn.: 1823, Bank of
U. S. V. Sill, 5 Conn. 106, 111 (cutting a bill
and sending the halves separately by mail, one
half being lost ; production not required) ;
///. ; 1867, Blake v. Fash, 44 111. 302, 304 (vol-
untary destruction excludes secondary evidence,
unless, fraudulent design is disproved) ; Ind.:
1859, Anderson Bridge Co. v. Applegate, 13 Ind.
339 (contract burned by promisee by way of
cancellation ; copy excluded) ; 1877, Rudolph v.
Lane, 57 id. 115, 118 (letter torn up after read-
ing; destruction with apparent fraudulent de-
sign bars other evidence, unless the fraud is
reljutted) ; la. : 1899, Murphy v. Olberding,
107 la. 547, 78 N. W. 205 (contract blurred by
proponent's children with ink; after making a
clean copy, he threw away the original ; copy
admitted) ; Ky. : 1899, Shields v. Lewis, —
Ky. — , 49 S. W. 803 (breach of promise of
marriage ; voluntary destruction by plaintiff of
defendant's letters, without fraud; other evi-
dence admissible, in trial Court's discretion) ;
Me.:_U5S, Tobin v. Shaw, 45 Me. 331, 344, 347
(" if it is satisfactorily shown that the act of
destruction was not the result of fraudulent in-
tent," other evidence is admissible; here, of
1417
letters from the defendant in an action for
breach of promise of marriage, the plaintiff
having been advised that they would not he
needed by her); Md.: 1898, Wright u. State,
88 Md. 436, 41 Atl. 795 (throwing away the
wrapper of a butter-package ; evidence of con-
tents admitted); Mass.: 1862, Joannes v. Ben-
nett, 5 All. 169, 172 (voluntary destruction ex-
cludes other evidence, " in the absence of any
proof that the destruction was the result of
accident or mistake or of other circumstances
rebutting any fraudulent purpose ordesigu");
1870, Stone v. Sanborn, 104 Mass. 319, 325
(approving Joannes v. Bennett) ; Mich. : 1862,
Gugins V. Van Gorder, 10 Mich. 523 (grantee
of an unrecorded deed consenting to destruc-
tion; evidence of contents excluded on the
present principle) ; 1884, People v. Sharp, 53 id.
523, 525, 19 N. W. 168 (note not kept, and ex-
planation sufScient; production not required);
1892, People ». Lange, 90 id. 454, 456, 51 N. W.
534 (embezzlement; defendant'semployers' books
suspiciously disappearing, the prosecution was
not allowed to resort to evidence of their con-
tents) ; 1895, Shrimpton v. Netzorg, 104 id. 225.
62 N. W. 343 (letter thrown, after reading^
into the waste-basket ; other evidence allowed) ;
1901, Davis i;. Teachout, 126 id. 135, 85 N. W.
475 (contract burned, by all parties' consent,
because considered useless; proof of contents
allowed); Minn.: 1866, Winona v. Huff, 11
Minn. 119, 130 (whenthe document is primayacie
in the offeror's possession, he must show loss or
destruction "without his culpability"); Mo.:
1846, Skinner v. Henderson, 10 Mo. 205 (burn-
ing by mutnal consent of an illegal contract ;
contents provable iu action to recover money
paid) ; 1902, Stephau v. Metzger, 95 Mo. App.
609, 69 S. W. 625 (copy admitted of a fly-leaf
account, first torn into pieces by a child, and
then thrown away after ,the account had been
copied from the pieces by the party offering
the copy); Mont: 1899, State v. Welch, 22
Mont. 92, 55 Pac. 927 (mere destruction of
letters according to custom, not sufficient to
exclude evidence of contents) ; N. J. : 1824,
Broadwell v. Stiles, 8 N. J. L. 58 (one who had
voluntarily erased and blotted out his name as
an indorser was not allowed to show otherwise
that the name was forged ; see quotation suyra ) ;
1833, Vanaukeu v. Hornbeck, 14 id. 178, 181
(voluntary burning of the note sued on, held to
exclude secondary evidence, as an "intentional
destruction"); 1863, Wyckoff v. Wyckoff, 16
§ 1198
DOCUMENTAEY ORIOmALS.
[Chap. XXXIX
1824, Todd, J., in Riggs v. Tayloe, 9 Wheat. 483, 487: "It -will be admitted that
where a writing has been voluntarily destroyed with an intent to produce a wrong or
injury to the opposite party, or for fraudulent purposes, or to create an excuse for its
nou-production, in such cases the secondary proof ought not to be received. Bat in cases
where the destruction or loss, although voluntary, happens through mistake or accident,
the party cannot be charged with default. In this case, the affiant states that if he
tore up the paper, it was from a belief that the statements upon which the contract had
been made were correct, and that he would have no further use for the paper ; in this he
was mistaken. If a party should receive the amount of a pi-omissory note in bills and
destroy the note, and it was presently discovered that the bills were forgeries, can it be
said that the voluntary destruction of the note would prevent the introduction of evidence
to prove the contents thereof? Or, if a party should destroy one paper believing it to be
a different one, will this deprive him of his rights growing out of the destroyed paper?
We think not."
1858, Field, J., in Bagley v. McMickle, 9 Cal. 430, 446 : " The object of the rule of law
which requires the production of the best evidence of which the facts sought to be estab-
lished are susceptible is the prevention of fraud ; for if a party is in possession of this
evidence and withholds it, and seeks to substitute inferior evidence in its place, the pre-
sumption naturally arises that the better evidence is withheld for fraudulent purposes
which its production would expose and defeat. When it appears that this better evidence
has been voluntarily and deliberately destroyed, the same presumption arises, and unless
met and overcome by a full explanation of the circumstances, it becomes conclusive of a
fraudulent design, and all secondary or inferior evidence is rejected. If, however, the
N. J. Eq. 401 (" If the instrument was volunta-
rily destroyed by the party, secondary evidence
of its contents will not be admitted, until it be
shown that it was done under a mistake, and
until every inference of a fraudulent design is
repelled"; admitting secondary evidence of a
will destroyed by the residuary legatee after
the testatrix' death after legal advice that it
was invalid and under the honest belief that it
was so) ; 1865, Clark v. Hornbeck, 17 id. 430,
451 (" voluntary destruction . . . would exclude
all evidence of its contents"; said of a note);
N. Y. : 1 802, Livingston ». Rogers, 2 Johns.
Gas. 488, 1 Cai. Cas. 27 (a letter left with the
attorney, who either carelessly lost it or else
destroyed it thinking it useless; Lansing, Ch.,
was for exclusion ou the ground of at least
" inexcusable neglect " ; the majority were for
admission, there being no " reasonable grounds
of suspicion of a suppression of the instrument "
or " of maia fides in the plaintiff") ; 1827, Jack-
son r. Lamb, 7 Cow. 431, 434 (papers buried
during the war of the Kevolutiou and thus
probably lost or destroyed; contents admissi-
ble); 1834, Blade v. Noland, 12 Wend. 173
(voluntary destruction of a note, unexplained
by the proponent, excludes secondary evi-
dence) ; 1837, Clute v. Small, 17 Wend. 238,
243 (approving the preceding) ; 1864, Enders v.
Sternbergh, 40 N. Y. (Keyes) 264, 269 ("If the
paper be purposely destroyed by a party having
an interest in its contents," it cannot be proved) ;
1881, Steele i;. Lord, 70 id. 280 (destruction by
the plaintiff, in good faith and in the course of
business, of drafts on which the advances sued
for had been made ; proof of contents allowed) ;
1882, Mason v. Libbey, 90 id. 683 (a plaintiflE's
hnsband had destroyed old letters from the
defendant, in order to reduce the bulk of house-
hold effects when moving to another city ; evi-
dence of contents admitted if "its destruction
was not to produce a wrong or injury to the
opposite party or to create an excuse for its
non-production " ; the trial Court's discretion to
controlin applying this principle); N. C: 1854,
McAulay v. Earuhart, 1 Jones L. 503 (a note
paid off and then destroyed ; secondary evi-
dence allowed); 1873, Pollack v. Wilcox, 68
N. C. 46,50 (same); Oh.: 1834, Woods o. Pin-
dall, Wright 507 (destruction of surrendered
bond by plaintiff's predecessor ; contents allowed
to be proved) ; Pa. . 1841, Shortz v. Unangst, 3
W. & S. 45, 55 (copy admitted, the original hav-
ing been burned by one who was a nominal plain-
tiff but really adverse) ; S. C. : 1892, State v.
Head, 38 S. C. 258, 260, 16 S. E. 892 (witness
read to L. a letter addressed to L., and L. then
took it and burnt it ; production not required) ;
Tenn.: 1871, Anderson v. Maberry, 2 Heisk.
653, 655 (destruction by the offeror's wife of a
paper left behind by him in his house ; produc-
tion not required, there being no suspicion of
suppression); U.S.: 1824, Kiggs i'. Tayloe, 9
Wheat. 483, 487 (voluntary destruction, suppos-
ing the paper to be no longer needed ; contents
allowed; see quotation supra) ; 1824, Reuner v.
Bank, ib. 581, 597 (" If the circumstances will
justify a well-grounded belief that the original
paper is kept back by design, no secondary evi-
dence ought to be admitted"); 1832, U.'S. v.
Doebler, 1 Baldw. 519, 520 (letter sent by de-
fendant to accomplice, and probably destroyed by
him as a precaution ; evidence of the contents,
apparently from the accomplice, admitted).
For the inference which may be drawn from
a fraudulent motive in destroying the original,
see ante, § 291.
1418
§§ 1177-1282]
INTENTIONAL DESTRUCTION.
§ 1199
destruction was made upon an erroneous impression of its effect, under circumstances
free from the suspicion of intended fraud, the secondary evidence is admissible. The
cause or motive of the destruction is, then, the controlling fact which must determine the
admissibility of this evidence in such cases."
The view now generally accepted is that (1) a destruction in the ordinary
course of business, and, of course, a destruction by mistake, is sufficient to
allow the contents to be shown as in other cases of loss, and that (2) a de-
struction otherwise made will equally suffice, provided the proponent first
removes, to the satisfaction of the judge, any reasonable suspicion of fraud.
The precedents, however, are not harmonious.
The question whether a title obtained by deed is revested in the grantor,
by the destruction of the deed with joint consent of grantor and grantee, has
sometimes, though improperly, been solved by invoking the present prin-
ciple ; ^ but the question is in truth one of the substantive law of property-
transfer.*
§ 1199. (2) Detention by Opponent; in General. This excuse for non-
production is historically one of the earliest recognized; yet there was a
time when it was not conceded.^ Only in the 1700s was the exemption, by
repeated rulings, put beyond doubt.''' To-day it is constantly enforced;^
and it applies equally in criminal cases and in civil cases.*
^ The following cases illustrate the argu-
ment : 1853, Speer v. Speer, 7 Ind. 178 ("The
voluntary surrender and destruction of an unre-
corded deed may have the effect of divesting
the title of the grantee by estopping him from
proving the contents ") ; 1857, Thompson v.
Thompson, 9 id. 323, 328 (delivery to grantor
by grantee with intent to surrender title ; " he
cannot be permitted to allege that a deed is
lost and thereupon give parol evidence of its
contents, when he has surrendered it to be can-
celled ; the deed is not lost in such a case " ;
rule held applicable only to parties to the deed).
^ For the authorities, see Jones, Real Prop-
erty, II, § 1259.
1 1631, Earl of Suffolk v. Greenvill, 3 Rep.
Ch. 89 (deed alleged to be concealed by the
defendant ; " the Court held it very dangerous
to admit the contents and sufficiencies of deeds
to be proved by testimony of witnesses ") ;
1677, Anon., 1 Mod. 266 (the defendant "had
gotten the deed into his hands," in an action on
a grant of advowson ; the Court : " When the
law requires that the deed be procured, you
have your remedy for the deed at law ; we can-
not alter the law, nor ought to grant an impar-
lance [i. e. stay] ").
2 16.33, Bradford's Case, Clayt. 15 (copy
allowable where defendant "himself hath the
deed . . . and will not produce it"); 1662,
Negus V. Reynal, 1 Keb. 12 (a deed taken away
by the defendant ; a lease " embezzled " by the
plaintiff's lessor; neither required to be pro-
duced) ; 1670, Moreton v. Horton, 2 Keb. 483
(a lease " burnt and taken out of the plaintiff's
trunk by the defendant," proved orally) ; 1683,
Carver v. Pinkney, 3 Lev. 82 (debt" for fees
due from one owning a rectory by indenture
VOL. II. — 27
1419
from the Dean of L. ; held, the indenture need
not be shown, "which the defendant penes se
habet"); 1696, Lynch v. Gierke, 3 Salk. 1.54,
Holt, C. J. (" in the possession of the plaintiff
[opponent] himself"; copy admissible); I7I1,
Sir E. Seymour's case, 10 Mod. 8 (deed possessed
by opponent, provable even with oral testimony,
"by a man that had no copy" ); 1718, Young v.
Holmes, 1 Stra. 70 (rule recognized) ; 1754,
Saltern v. Mellmish, Ambl. 247 (rule recog-
nized) ; 1773, Attorney-General v. Le Merchant,
2 T. II. 201, note (copies of letters of the de-
fendant had been taken while in the hands of
the bankruptcy assignees ; on notice and failure
to produce, on a charge of unlawful importa-
tion of tea, the copies were admitted) ; 1778, R.
V. Watson, 2 T. R. 199, per BuUer, J. (said
generally).
' The following cases merely recognize the
general principle without ruling upon any of the
details ; the Codes which recognize it are cited
in the ensuing sections : 1836, Calvert v. Flower,
7 C. & P. 386 ; 1795, Sedgwick v. Waterman, 2
Root 434; 1889, Gaftord v. Invest. Co., 77 la.
736, 738, 42 N. W. 550; 1830, Thayer v. Ins Co.,
10 Pick. 326, 329 ; 18.52, Almy v. Reed, 10 Cush.
421, 425; 1884, Van Ness v. Hadsell, 54 Mich.
560, 563, 20 N. W. 585 ; 1886, Pangborn v. Ins.
Co., 62 id. 638, 641, 29 N. W. 475 (on cross-ex-
amination) ; 1857, Cooper v. Cranberry, 33 Miss.
117, 122; 1856, Cross v. Bell, 34 N. H. 82, 88;
1814, Jackson v. Woolsey, 11 John. 446; 1831,
Life & Fire Ins. Co, v. Ins. Co., 7 Wend. 31, 34 ;
1900, Strawbridge v. Clamond Tel. Co., 195 Pa.
118, 45 Atl. 677.
* 1867, R. V. Elworthy, 10 Cox Cr. 579, 582,
583 ; and see numerous other instances in the
ensuing notes.
§ 1199 DOCUMENTARY ORIGINALS. [Chap. XXXIX
The reason for the excuse is clear ; if the ,opponent detains the document,
then it is not available for the proponent, and as the fundamental notion of
the general rule is that production is not required where it is not feasible,
the rule here falls away and the non-production is excused :
1773, Buller, J., in Attorney-General v. Le Merchant, 2 T. R. 201, note: "It was like-
wise said, in support of the motion, that the reason why copies are permitted to be
evidence in common cases is because the party who has them iu his custody, and does
not produce them, is iu some fault for not producing them ; it is considered as a mis-
behavior in him in not producing them, and therefore in criminal cases a man who does
not produce them is in no fault at all, and for that reason a copy is not admitted. But I
do not take that to be the rule ; it is not founded upon any misbehavior of the party, or
considering him in fault ; but the rule is this : the copies are admitted, when the originals
are in the adversary's hands, for the same reason as when the originals are lost by acci-
dent ; the reason is because the party has not the originals to produce."
It is clear that this notion of detention hy the opponent, as an excuse for
non-production, indicates three essential elements : (a) possession, or more
broadly, control, by the opponent; (b) demand, or notice, made to him by the
proponent, signifying that the document will be needed ; and (c) failure, or
refusal, by the opponent to produce them in court. Only when these three
circumstances coexist can it be said that the document is unavailable
because the opponent detains it. The significance of this analysis is shown
in the detailed rules.
§ 1200. Same : {a) Opponent's Possession ; What Constitutes Possession.
This element of possession, or control, is not to be tested by any of the tech-
nical definitions of possession applicable in other branches of the law. The
question here is whether the proponent is unable to produce the document
because the opponent has practically the control of it. It is enough for
this purpose if the opponent has the control, whether technically named
" possession '' or not :
1833, Littledale, J., in Parry v. May, 1 Moo. & Rob. 280: "The instrument need not
be in the actual possession of the party ; it is enough if it is in his power ; which it
-would be if in the hands of a party in whom it would be wrongful not to give up posses-
.sion to him."
(1) It follows that the document need not be actually in the personal
■custody of the opponent himself; it is enough if it be held by a third per-
son on the opponent's behalf and subject to the opponent's demand.^ The
^ The precedents cover various situations, Payne, 2 id.. 520 (a check with the defendant's
and no more detailed rule can be or ought to be bankers ; no notice necessary to the latter ;
laid down: Enij. : 1816, Baldney v. Ritchie, 1 Bayley, J. : " The bankers are "your [the defend-
Stark. 338 (an order of delivery sent to the cap- ant's] agents ; you would have a right to go to
tain of the defendant's vessel by the defendant; the bankers and demand the check of tlieni") ;
held the possession of the defendant) ; 1824, 1833, Parry i>. May, 1 Moo. & Rob. 279 (a docu-
Partridge v. Coates, Ry. & Mo. 153 (agent's ment in the hands of a common agent of the
possession sufficient; banker held n customer's defendant and a third person, held not in the
agent in holding a check); 1824, Sinclair v. defendant's control; "he must have such a
Stevenson, 1 C. & P. 582, 585 (agent's possession right to it as would entitle him not merelv to
is the principal's ; here the opponent had given inspect but to retain ") ; 1845, Robb r. Starker,
it to a third person and did not make it appear 2 C. & K. 143 (agent's possession sufficient, even
that he could not get it back) ; 1827, Burton v. though there is merely " evidence to go to the
1420
§S 1177-1282]
OPPONENT'S DETENTION.
§ 1201
question whether notice to such a third person to produce is sufficient {post,
§ 1208) is a different one.^ (2) It is immaterial that the document is out
of the jurisdiction, if it is held there on behalf of the opponent ; ^ the only
question can be as to the sufficiency of time allowed by the notice to pro-
duce (^post, § 1208).* (3) A past recent possession, not shown to have
ceased, will ordinarily be assumed to continue ; ^ a transfer of possession by
the opponent to a third person after notice received will not take away the
proponent's excuse for non-production ; ^ nor, in fairness, should a transfer
shortly before notice served, if the opponent did not duly advise the pro-
ponent, at the time of notice, that he had transferred it.*'
§ 1201. Same : Mode of Proving Possession ; Documents sent by Mail.
Difficulties of principle sometimes arise with reference to the evidence
offered to prove the opponent's possession so as to take advantage of the
present excuse. (1) In the first place, the opponent's possession must he
somehow shown by the party offering a copy;^ and the sufficiency of the
proof is of course a preliminary question to be determined by the judge.^
(2) In the next place, it often happens that the only evidence of such
possession is the mailing of the document, under cover duly stamped and
addressed, to the opponent ; this is on general principles (ante, § 95 ) to be
regarded as sufficient evidence of its receipt by the addressee, and therefore
i'ury " of the defendant's agent's custody) ; 1860,
rwin V. Lever, 2 F. & F. 296 (Pollock, C. B. :
" The possession of the plaintiff's attorney is the
possession of the plaintiff ; . . . though they [i. e.
agents] might perhaps be subpoenaed, it is not
necessary to subpoena them ; when the principal
is a party to the suit, it is suiiicient to give the
party notice"; here the document was in the
hands of an attorney in another suit, different
from the one acting in the present suit ; notice
to the principal held sufficient) ; 1860, Black-
burn, J., in Wright v. Bunyard, 2 F. & F. 193,
196 (opponent's banker's possession, held not
sufficient) ; 1860, Pollock, C. B., in Irwin v.
Lever, ib. 296 (opponent's banker's possession
sufficient) ; 1901, Harloe v. Lambie, 132 Cal.
133, 64 Pac. 88 (possession of the attorney suf-
fices) ; 189-t, Main v. Aukam, 4 D. C. App. 51,
55 (possession by a co-defendant, subject to de-
fendant's call, held the possession of defendant) ;
1782, Morris v. Vanderen, 1 Dall. 64, 65 (that
deeds were detained by the opponent's lessor
under whom he claimed, sufficient) ; 1832, U. S.
w. Doebler, 1 Baldw. 519, 522 (forgery; letter
sent by defendant to accomplice, asking for
more of the forged notes, held to be construc-
tively in defendant's possession).
* Here the question is whether the opponent
could control the document, irrespective of the
time required to obtain it, and whether under
any^ circumstances the proponent by giving
notice can excuse himself ; there the question is
whether notice to the agent alone suffices ; i. e.
whether the third person had a duty to com-
municate it and time to surrender, or whether
notice to the opponent alone allows him time to
obtain the document.
' 1874, Gimbel v. Hufford, 4G lud. 12.5, 129
(though out of the State, yet it may be never-
theless within the party's own control).
* For the question whether notice is necessary
(here the question is merely whether it is suffi-
cient) to an opponent out of the jurisdiction, see
post, § 1213.
"S 1829, R. V. Hunter, 4 C. & P. 128 (former
possession presumptively held to continue).
6 1819, Knight w. Martin, Gow 103.
■> Contra: 1860, Wright v. Bunyard, 2 F. &
F. 193, 194 (the defendant had transferred it
before notice served; copy not allowed, even
though the proponent did not know, until the
defendant so testified, what had become of it).
^ The following citations include various in-
stances of proof deemed sufficient on the facts :
1834, Whitford v. Tutin, 10 Bing. 395 ; 1895,
Loeb V. Huddleston, 105 Ala. 257, 16 So. 714;
1830, Hughes v. Fasten, 4 J. J. Marsh. 572;
1874, Sun Ins. Co. v. Earle, 29 Mich. 406, 411 ;
1886, Gage v. Meyers, 59 Mich. 300, 306, 26
N. W. 522 (mere proof of writing a letter to
opponent, the latter denying its receipt, insuffi-
cient) ; 1860, Desnoyer v. McDonald, 4 Minn.
515, 518 (documents sufficiently traced to de-
fendant's possession) ; 1867, Thayer v. Barney,
12 id. 502, 512 (same); 1893, Lovejoy v. Howe,
55 Minn. 353, 356, 57 N. W. 57 (possession
traced to opponent on the facts) ; 1819, Wills v.
M'Dole, 5 N. J. L. 501 (that a document was
" believed " to be in the possession of the de-
fendant's agent, held insufficient) ; 1825, Vasse
V. Mifflin, 4 Wash. C. C. 519 (opponent denied
receipt of letter ; sending not shown ; copy
excluded).
^ 1841, Harvey v. Mitchell, 2 Moo. & Rob.
366 ; post, § 2550.
1421
§ 1201 DOCUMENT AEY OPJGINALS. [Chap. XXXIX
oucht to suffice as evidence of his possession in order to excuse the pro-
ponent's non-production after notice to the opponent.^ But this question
must be carefully distinguished from another one; the question here is
•nrhether it is sujficient for the proponent, in excuse, to show this and give
notice, as entitling him then to prove the contents ; but the question may
also be raised whether it is even necessary for him to give notice, i. e.
whether he may not treat it as really a case of loss, and thus prove the
contents without having given notice ; this involves another consideration
{post, § 1203).
(3) Whether an attorney may be asked as to his possession of a client's
document involves the question of privilege (post, § 2309).
§ 1202. Same: (6) Notice to Produce: General Principle. The reason
for the simple rule requiring notice has at times been the subject of some
singular misunderstandings and fantastic inventions. (1) It has been said,
for example, that the opponent must be notified so that the proponent may
not impose a false copy upon the Court.^ The answer to this is, first, that
giving notice does not remove this danger, for if the opponent does not pro-
duce the original, the proponent's copy may still be false, and, secondly, that
the argument would be equally sound for a document in a third person's
hands, for which concededly no notice need be given to the opponent. (2) It
has also been said that the notice must be given in order to prevent surprise
on the opponent's part ; ^ the answer to this is, first, that in general no party
is obliged to guard against surprising his opponent by warning him of
intended evidence (post, § 1845) ; secondly, that if here the purpose were
to give the opponent time to discover evidence impeaching or confirming
the document, the notice should allow time for such an investigation ; yet
the law is clear that only time enough to produce the document need be
3 Accord : 1899, Shields v. Lewis, — Ky. — , The only argnment in favor of these adverse
49 S. W. 803 (letter mailed to opponent ; evi- rulings seems to be that the opponent's denial
dence of contents receivable) ; 1837, Dana v. of receipt overcomes the inference resting on the
Kemble, 19 Pick. 112, 114 (letter left at a hotel, fact of mailing. But if so, as the proponent has
where the nsage was to distribute regularly let- shown the mailing and the opponent denies the
ters so sent ; held snfiBcient ; the question is arrival, the dilemma can be solved only by as-
" whether it is sufficiently proved that the letter snming that the document has miscarried, and
or document has come to the hands and is in the the case becomes one of loss, and therefore no
possession and power of the oppo.«ite party ") ; notice at all is necessary; see post, § 1203.
1875, Augur S. A. & G. Co. v. Whittier, 117 ^ 1803, EUenhorongh, L. C. J., in Surtees v.
Mass. 451, 453, 455 (letter mailed to opponent, Hubbard, 4 Esp. 203 (" the reason of giving
and notice to produce ; denial by him of the notice . . . was to check a person from giving
letter's receipt ; a copy admitted) ; 1879, Dix k. in evidence what was a false copy"); 1S57,
Atkins, 128 id. 43 (letter delivered to opponent's Merrick, C. J., in Williams v. Benton, 12 La.
clerk, but receipt denied by opponent ; held suf- An. 91 (" The reason of the rule is that pos.sibly
ficient evidence of possession) ; 1895, Sugar the instrnment, when produced, will be less
Pine D. & L. Co. v. Garrett, 28 Or. 168, 42 Pac. favorable to the plaintiffs than the parol proof
129 (letter properly mailed; sufficient on the which thev mav obtain ").
facts); 1883, Rosenthal v. Walker, 111 U. S. » 1811," Le Blanc, J., in How w. Hall, 14 East
185, 193, 4 Sup. 382 (letters mailed, but said by 274, 276 (" We see the good sense of the rule
addressee not to have been received ; copies al- which requires previous notice to be given . . .
lowed). Contra: 1874, Illinois L. & L. Co. v. that he may not be taken by surprise ") ; 1831,
Bonner, 75 111. 315 (wiU sent to complainant by Curia, in Bank v. Brown, Dudley 62, 64 ("The
mail ; required to he otherwise accounted for) ; rule is . .to prevent his being taken by sur-
1851, Choteau v. Kailt, 20 Oh. 132 (mere de- prise, in cases where it is uncertain whether such
posit in post-office addressed to opponent, not evidence wiU be used by the adverse party " ).
enough).
1422
§§1177-1282] OPPONENT'S DETENTION; NOTICE. §1203
allowed ; and, thirdly, that if in fact he is not surprised, it is in law still
no excuse for not giving notice.
(3) The true reason is that which is naturally deducible from the pro-
ponent's situation. He is required to produce the document if he can ; he
says that he cannot, and shows that he cannot because the opponent has it
and will not bring it in ; but this essential proposition, that the opponent
will' not bring it in, can be supported only by showing that the opponent has
been requested to do so and has failed to comply with the request. If we
translate " notice " by " demand," we shall immediately appreciate the signifi-
cance of the notice as a requirement. It is a demand for future production
by the opponent ; and this notice or demand is necessary, in Baron Parke's
words,^ " merely to exclude the argument that the party has not taken all
reasonable means to procure the original ; which he must do before he can
be permitted to make use of secondary evidence." This reason is clearly
the only correct one, and is not only consistent with the details of the rule,
but has frequently been pointed out by the Courts :
1808, Tilghman, C. J., in Com. v. Messinger, 1 Binn. 273, 274 : " Notice must be
served on him or his attorney to produce it, because otherwise it cannot appear that the
prosecutor might not have had the original if he had chosen to call for it."
1821, Porter, J., in Abat v. Riou, 9 Mart. La. 465, 467: " The elementary principle,
which requires that the best evidence the nature of the case permits of shall be pro-
duced, . . . refuses to a party permission to give secondary evidence of a written
document on the ground of its being in possession of his adversary, until he has shown
that by giving notice to that adversary to produce it, he has used every exertion in his
power that the best evidence might be had." *
The cases arising under this requirement involve two sets of questions :
the necessity of the notice ; and the procedure of giving notice. Under the
first head may be considered, in order, cases in which the rule of notice is
not applicable; cases in which the rule is satisfied; cases in which, by
exception, notice is dispensed with.
§ 1203. Same : Rule of Notice not Applicable ; Documents Lost, or Sent
by Mail, (a) The rule requiring notice to the opponent proceeds on the as-
sumption that the opponent has possession of the document, the object
being to show a demand and refusal to produce. Hence, the mere giving of
notice or demand, without showing thSt the opponent had the document de-
manded, is of no avail.i
' Id Dwyer !). Collins, quoted more fully posi, Mutnford v. Thomas, 10 id. 167, 169; 1897,
§ 1204. Perry v. Archard, 1 I. T. 487, 42 S. W. 421 ;
* The following list contains sundry cases 1859, State v. Mayberry, 48 Me 218, 239 (Court
merely applying the rule without illustrating Rule 27 merely affirms the existing law of evl-
anv of its details : Eng. : 1797, Molten v. Harris, dence) ; 1820, Kennedy v. Fowke, 5 H. & J. 63 ;
2 Esp. 549; 1835, Littledale, J., in Doe i'. Mor- 1861, Morrison v. Welty, 18 Md. 169, 174; 1871,
ris, 3 A. & E. 46, 50 (" When a document is Board v. Moore, 17 Minn. 412, 424; 1877, Bird
shown to have been in the possession of a de- sail v. Carter, 5 Nebr. 517; 1890, Watson v.
fendant, the i)laintife is not at liberty to talk of Koode, 30 id. 264, 273, 46 N. W. 491; 1858,
it till he has given notice to produce it ") ; U. S. . Farnsworth v. Sharp, 5 Sneed 615 ; 1840, U. S.
1893, Home Prot. Co. v. Whidden, 103 Ala. 203 ; v. Winchester, 2 McLean 135, 138.
1896, Smith v. Holbrook, 99 Ga. 256, 25 S. E. ^ 1819. Knight v. Martin, Gow 103; 1857,
627; 1855, Smith v. Reed, 7 Ind. 242; 1858, Bell u. Chandler, 23 Ga. 356, 359 (execution,
1423
§ 1203
DOCUMENTAET OEIGINALS.
[Chap. XXXIX
(b) Conversely, the requirement of notice does not apply to the proponent
unless he s proceeding on the theory that the opponent has possession; for
example, if he is accounting for the document as lost or destroyed, and not
as in possession of the opponent, notice is unnecessary.'-^ It follows that
where the document can be shown to have been lost or destroyed while in
the opponent's hands,^ or is admitted iy the opponent to have been de-
stroyed or lost, even out of his own possession,* no notice is necessary;
for it is no longer a case of opponent's possession, but of loss. Furthermore,
where by the proponent's evidence the document is traced to the opponent's
hands — as by the presumption from mailing — and the opponent denies the
receipt of it, then, even taking the opponent's testimony at its highest value,
the whereabouts of the document becomes an unexplainable mystery, and
the case is virtually one of loss ; so that the proponent should be allowed to
prove the contents without having given notice ; while, if we take the oppo-
nent's testimony as false and assume that he has in truth received the docu-
ment, his denial is equivalent to an express refusal to produce, which equally
puts the plaintiff in the position of being unable to obtain the document
{post, § 1207), so that notice is unnecessary."
§ 1204. Same : Rule of Notice Satisfied ; (1) Document present in Court.
Where the document is at hand in the court-room, in the opponent's posses-
sion, an instant demand is sufficient, and no previous notice, i. e. before the
presumably on file) ; 1823, Den v. M'Allister,
7 N. J. L. 46, 55.
Compare the cases cited ante, § 1201, requir-
ing possession to be shown.
= 1816, Teilti. Roberts, 3 Hayw. 138; 1840,
McCreary v. Hood, 5 Blackf. 316 ; 1841, Linsee
V. State, ib. 601, 603.
For the case ot fraudulent suppression by the
opponent, see post, § 1207.
' Contra: 1835, Doe k. Morris, 3 A. & E.
46 (notice nece.ssary, even though the plaintiff
claims that it can be shown to have been since
destroyed).
* 1861, Indianapolis & C. R. Co. u. Jewett,
16 lud. 273 (admission of opponent's agent, the
custodian, sufficient to prove loss) ; 1903, Safe
Deposit & T. Co. v. Turner, — Md. — , 55 Atl.
1023; 1890, Barmby j). Plummer, 29 Nebr. 64,
68, 45 N. W. 277. Contra: 1873, Olive v.
Adams, 50 Ala. 373, 375 (notice required, even
where the opponent in litigation ten months be-
fore had admitted that his bond for title was
lost or destroyed) ; 1885, Burlington Lumber
Co. V. W. C. & M. Co., 66 la. 292, 23 N. \V. 674
(opponent's admission of the loss, etc., of a docu-
ment, not sufficient to dispense ; the opinion
erroneously supposes that the reason of the rule
aims at allowing the opponent to obtain evi-
dence as to contents or to disprove the existence
of the paper, and not merely at giving time for
search). Bnt the following case seems to go too
far: 1882, Hope's Appeal, 48 Mich. 518, 12
N. W. 682 (opponent's denial of existence of
document relieves from necessity of production ;
here, a second will said to have revoked a first,
but denied by opponent to exist).
" This situation has given some trouble to
the Courts in its solution ; bnt the majority of
rulings take the above view ; 1 884, Littleton v.
Clayton, 77 Ala. 571, 575 (following Roberts v.
Spencer, infra); 1903, Bickley v. Bickley, 136,
id. 548, 34 So. 946 (letters said to have been re;
ceived by the opponent, but their receipt denied
by her ; no notice required) ; 1869, Jones v.
Jones, 38 Cal. 584, 586 (paper presumed in de-
fendant's possession ; after notice, defendant
disclaimed all knowledge of it ; copy allowed) ;
1877, Carr v. Smith, 58 Ga. 361 (where the op-
ponent denies the alleged possession or alleges
loss, and thus the case is in effect one of loss for
the opponent, no notice is necessary) ; 1877,
Roberts v. Spencer, 123 Mass. 397, 399 (docu-
ment mailed to opponent, but said by him not to
have been received ; no notice necessary) ; 1894,
Dunbar v. U. S., 156 U. S. 185, 194, 15 Sup. 325
(letters said to be in defendant's possession;
defendant denied possession ; semble, no notice
needed); 1901, Scott v: Bailey, 73 Vt. 49, 50
Atl. 557. Contra: 1879, Dix u. Atkins, 128
Mass. 43 (letter delivered to opponent's clerk,
but receipt denied by opponent ; notice said to be ^
necessary) ; 1878, Ferguson v. Hemingway, 38
Mich. 159 (letter to opponent; opponent's fail-
ure to recollect receipt of it, no reason for dis-
pensing with notice) ; 1898, Clary v. O'Shea, 72
Minn. 105, 75 N. W. 115 (plaintiff alleged a lease
to the defendant, in the latter's possession ; de-
fendant denied the existence of such a lease;
notice held necessary).
Compare the different bat related qaestion iu
§ 1201, ante.
1424
§§ 1177-1282] OPPONENT'S DETENTION; NOTICE. § 1204
trial, is necessary. A contrary view could rest only on some erroneous idea
of the reason for requiring notice, — as, for example, that it is to allow the
opponent to search for evidence ; but as the only reason for it is to make
clear that the proponent has demanded and failed to obtain the document and
has thus done all that he can to obtain it {ante, § 1202), a notice or demand
made on the spot, for a document at the moment in court, is here equally
satisfactory :
1852, Parke, B., in Dwyer v. Collins, 7 Exch. 639: "The next question is whether, the
bill being admitted to be in court, parol evidence was admissible on its non-production,
or whether a previous notice to produce was necessary. On principle, the answer must
depend on the reason why notice to produce is required. If it be to give his opponent
notice that such a document will be used by a party to the cause, so that he may be
enabled to prepare evidence to explain or confirm it, then no doubt a notice at the trial,
though the document be in court, is too late. But if it be merely to enable the party to
have the document in court, to produce it if he likes, and if he does not, to enable the
opponent to give parol evidence, — if it be merely to exclude the argument that the oppo-
nent has not taken all reasonable means to procure the original (which he must do before
he can be permitted to make use of secondary evidence), then the demand of production
at the trial is sufficient. ... If this [the former] be the true reason, the measure of the
reasonable length of notice would not be the time necessary to procure the document — a
comparatively simple inquiry — , but the time necessaiy to procure evidence to explain or
support it, — a very complicated one, depending on the nature of the plaintifi's case and
the document itself and its bearing on the cause ; and in practice such matters have never
been inquired into, but only the time with reference to the custody of the document and
the residence and convenience of the party to whom notice has been given, and the like.
We think the plaintiff's alleged principle is not the true one on which notice to produce
is required, but that it is merely to give a sufficient opportunity to the opposite party to
produce it and thereby secure if he pleases the best evidence of the contents ; and a re-
quest to produce immediately is quite sufficient for that purpose, if it be in court. . . .
It would be some scandal to the administration of the law if the plaintiff's objection had
prevailed."
1829, Mills, J., in Dana v. Boyd, 2 J. J. Marsh. 587, 592 : " The design of the notice
is that the party may be apprized of the necessity of bringing it in. If it is already there,
demand of its production is sufficient notice." ^
^ In the following citations, the term " not bill being in court in the plaintiff's hands, the
necessary " means that notice before trial is un- defendant was not required to give notice;
necessary and that notice at the trial suffices: quoted supi-a) ; United States: 1847, Brown v.
England (here the rule was not settled until the Isbell, H Ala. 1009, 1022 (notice not necessary,
case of Dwyer v. Collins, above quoted) ; 1769, " perhaps ") ; 1884, Littleton v. Clayton, 77 id.
Koe V. Harvey, 4 Burr. 2484, 2487 (the only 571, 575 (not necessary); 1888, Crawford v.
question decided dealt with the presumption Hodge, 81 Ga. 728, 730, 8 S. B. 208, semble (not
from non-production; on the present question necessary); 1846, Ferguson v. MUes, 8 111. 358,
the opinions are obscure) ; 1816, Doe v. Grey, 364 (not uecessarv) ; 1884, Bell v. R. Co., 64 la.
1 Stark. 283 (notice required) ; 1832, Cook v. 321, 322, 20 N. W. 456 (paper delivered at trial
Hearn, 1 Moo. & Rob. 201, before three Judges by opponent without notice ; notice not neces-
(notice in court insufficient, though presumably sary for proving missing portion) ; 1826, Lamb
the document was in court) ; 1834, Bate v. Kin- v. Moberly, 3 T. B. Monr. 179 (not necessary) ;
sey, 1 Cr. M. & R. 38, 43 (the plaintiff's attorney 1829, Dana v. Boyd, 2 J. J. Marsh. 587, 592 (not
had the deed in court, but claimed the attor- necessary) ; 1857, McGregor i. Wait, 10 Gray
ney's privilege ; Gurney, B. : " The fact of the 72, 73, 75, semble (not necessary) ; 1892, Hansel-
instrument being in court makes no difference man v. Doyle, 90 Mich. 142, 144, 51 N. W. 195
with regard to the necessity of a notice to pro- (discretion of trial Court); 1867, Howell v.
duce") ; 1842, Parke, B., in Lloyd w. Mostyn, Huyck, 2 Abb. App. 423 (action to foreclose a
2 Dowl. Pr. N. s. 476, 481 (left undecided); mortgage; plea, payment to the plaintiff's as-
1852, Dwyer v, Collins, 7 Exch. 639 (plea of signer; to prove the indorsements of payment
gaming to an action on a bill of exchange ; the on the mortgage, no notice was necessary, the
1425
1205
DOCUMEITTART OEIGINALS.
[Chap. XXXIK
§ 1205. Same : Rule of Notice Satisfied ; (2) Implied Notice in Pleadings ;
New Trial ; Trover, Forgery, etc. It is clear that the proponent's notification
of his need for a specific document may be made otherwise than by an ex-
press writing formally calling upon the opponent to produce. Where by
necessary implication the opponent has become informed to that effect, there
is a sufficient notification, such that the opponent's failure to produce will
place the proponent at liberty to prove the contents otherwise.
The chief instance of such a notice by necessary implication occurs where
by the pleadings of the proponent the cause of action makes it clear that he
will need to prove, as a material part of his case, the contents of a specific
document in the opponent's possession:
1811, LeBlanc, J., in How v. Hall, 14 East 274, 277 : " Where the nature of the action
gives the defendant notice that the plaintiS means to charge him with the possession of
such an instrument, there can be no necessity for giving him any other notice."
The principle is universally accepted ; and a variety of cases — some of them
more or less open to difference of opinion — illustrate its application.^
papers being presumed to be in court in the
plaintiff's possession) ; 1851, Choteau t. Eaitt,
20 Oh. 132 (notice at trial " might be said to
be reasonable"); 1845, Keynolds v. Quattle-
bum, 2 Rich. 140, 144 (not necessary) ; 1892,
Bickley v. Bank, 39 S. C. 281, 293, 17 S. E. 977
(not necessary) ; 1898, Hampton v. Ray, 52 id.
74, 29 S. E. 537 (not necessary) ; 1827, Rhoades
V. Selin, 4 Wash. C. C. 715, 718 (not neces-
sary) ; 1861, Barker B. Barker, 14 Wis. 131, 130
(not necessary) ; 1863, Barton v. Kane, 17 Id.
37, 45, semble (same).
1 England: 1800, Anderson v. May, 2 B. &
P. 237 (action by an attorney for services ren-
dered ; his biU had alreadj' been delivered to the
defendant, though not by way of notice of the
action, but in the ordinary way of a demand ;
no notice required) ; 1807, JoUey v. Taylor,
1 Camp. 143 (assumpsit upon a promise to carry
three promissory notes ; no notice required) ;
1817, Wood V. Strickland, 2 Meriv. 461 (notice
not necessary for a Chancery hearing, where
through the prior publication of the depositious
the oppouent knew that the document would be
needed) ; 1827, Colling v. Treweek, 6 B. &C. 394,
398 (" where from the nature of the suit, the
opposite party must know that he is charged
witli possession of the instrument " ; here ap-
plied to an attorney's bill sued upon, the law
requiring a delivery of it to the client one month
before bringing suit) ; 1835, Read u. Gamble,
10 A. & E. 597 (the plaintiff sued on a check;
plea, that it covered a gambling debt ; the
defendant held bound to give notice); 1839,
Shearm v. Burnard, ib. 593, 596, semble (plea
that a note sued on was given in payment of
an accommodation note ; notice to produce the
latter note required) ; 18+0, Knigbt v. Water-
ford, 4 Y. & C. 283, 292 (action for tithes ; bond
to a predecessor in title for a lease of tithes ;
whether notice was not necessary, left unde-
cided ; Wood r. Strickland doubted) ; Canada:
1859, Bank of Montreal v. Snyder, 18 U. C.
Q. B. 492 (action on a note; notice required, the
plea not denying its genuineness, but alleging
fraud; unsound); United Stales : 1886, Nichol-
son V. Tarpey, 70 Cal. 608, 610, 12 Fac. 778 (ac-
tion on contract for sale of land, the defendant
having possession of the only remaining dupU-
cate original of the contract; notice not re-
quired) ; 1878, Cole V. Cheovenda, 4 Colo. 17,
21 (action for breach of contract ; notice at the
trial sufficient) ; 1803, Ross v. Bruce, 1 Day 100
(civil action for money paid on forged note ; no
notice needed) ; Ga. Code 1895, § 5254 (express
notice not necessary " when the action is brought
to recover the paper or set it aside"); 1887,
Columbus & W. R. Co. ». Tillman, 79 Ga. 607,
610, 5 S. E. 135 (action on contract of carriage;
notice required for bill of lading); 18S6. Spen-
cer V. Boardman, 118 lU. 553, 9 N. E. 330 (peti-
tion to sell deceased's estate ; notice of use of
ante-nuptial contract, implied by the pleadings) ;
1862, Commonwealth's Ins. Co. v. Monuinger, 18
Ind. 352, 361 (action on a policy ; notice for
notice of loss, not required) ; 1862, Patterson r.
Linder, 14 la. 414 (biU to quiet title by vendor
who had given bond for a deed; notice required
for the bond) ; 1902, State v. Dreany, 65 Kan.
292, 69 Pac. 182 (conspiracy in restraint of trade ;
notice to produce the illegal agreement, held to
be implied from the issue) ; 1893, Dade v. Ins.
Co.. 54 Minn. 336, 56 X. W. 4S (action on fire
policy ; notice required of proofs of loss sent by
plaintiff to defendant) ; 1860, Griffin i- Sheffield,
38 .Miss. 359, 362, 380, 393 (defendant in eject-
ment had fnrnished plaintiff with a bill of par-
ticulars of title, including a copy of a title-bond ;
plaintiff iillowed to use this copy without notice,
on defendant's refusal to produce original) ;
1902, Cook V. State, 81 id. 146, 32 So, 312 (illegal
s.'Je of liquor: express notice required for a
Feder,il liquor-license in defendant's po.-;session ;
ruling unsound) ; 1837, Hart v. Robinett, 5 Mo.
11, 16 (action for not returning an execution;
notice not necessary) ; 1S80, Cross v. Williams,
72 Id. 577, 580 (action by bond-surety, alleging
the contract to be either lost or in defendant's
1426
§§1177-1282] OPPONENT'S DETENTION; NOTICE.
§ 1205
A few cases call for special mention : (a) In an action of trover for a docu-
ment, there can be no doubt that on the present principle the plaintiff may
prove the conversion of the document without having expressly notified the
defendant to produce it, because the very nature of the action sufficiently
notifies the defendant.^ But, practically, the same result is also reached by
another principle (§ 1242, post) ; for the plaintiff, in proving the conversion,
does not need to prove the terms of the document, but only the existence and
identity of it, and its taking by the defendant ; so that the rule of production
does not apply ; and thus a number of rulings {post, § 1249) reach the same
result upon this latter principle. There would be this difference between the
two principles, that if under the former the defendant should produce under
the implied notice, the plaintiff might still not be able to use it if it were
illegally without stamp; while under the latter principle the document
need not be either produced or accounted for and its lack of stamp would
be immaterial.
(b) In a criminal prosecution in which the gist of the charge is an un-
lawful dealing with a document by the defendant, the charge is a sufficient
notice to produce the document if in his possession :
1832, Baldwin, J., in U. S. v. Doebler,! Baldw. 519, 524: "If the note he is charged
■with forging, passing, or delivering, is of the same kind with others which he has dis-
possession; notice not needed) ; 1852, Neally w.
Greenough, 25 N. H. 325, 329 (action on a bill
of exchange against the acceptor; notice not
necessary) ; 1820, Hardin «. Kretsinger, 17 John.
293 (covenant lor a sum of money in obligar
tions promised in consideration of a conveyance ;
notice not required) ; 1867, Howell v. Huyck,
2 Abb. App. 423 (action to foreclose a mortgage ;
plea, payment to the plaintiff's assignor; to
prove the plea, the defendant was allowed to
testify that the mortgagor, his vendor, had shown
him the mortgage with the indorsements of pay-
ment thereon ; held, that notice to produce the
instrument need not have been given by the de-
fendant ; " the pleadings were notice to produce
the papers ; this was not notice, it may be said,
to produce them for the purpose of showing in-
dorsements on them ; but a notice to produce
them for any purpose, it seems to me, ought
to be sufficient to admit parol proof of any
fact which the production of the paper would
show") ; 1901, Nichols & S. Co. v. Charlebois, 10
N. D. 446, 88 N. W. 80 (breach of warranty of
machinery ; pleadings held to give sufficient
notice to produce a notice of breach as required
under the contract) ; 1816, Alexander v. Coulter,
2 S. & R. 494 (action on partnership agreement
to keep fair and regular books, for sums col-
lected by partner's administrator; notice re-
quired, for a specific book ; " it is not enough
that the paper is referred to In the declaration '^ ;
1851, Garrigues v. Harris, 16 Pa. St 344, 350
(ejectment for land held under a fraudulent
deed; notice not required) ; 1831, Pickering v.
Meyers, 2 Bail. 113 (assumpsit for wages; no-
tice of written agreement held necessary) ; 1801,
Worth V. Norton, 60 S. C. 293, 38 S. E. 605 (ac-
tion on a note ; defence, statute of limitations ;
1427
notice required for the defendant seeking to
prove the date ; ruling unsound) ; 1899, Zipp v.
Colchester R. Co., 12 S. D. 218, 80 N. W. 367
(action on contract ; pleadings held to imply
notice as to orders and letters from plaintiff to
defendant) ; 1855, Dean v. Border, 15 Tex. 298
(action on two notes ; plea, payment, with speci-
fication of items including " draft on J. A." ;
held, not sufiicient as notice) ; 1855, Hamilton
V. Rice, ib. 382, 385 (trespass to try title ; an-
swer, that a survey was made, but the field-notes
were fraudulently obtained and kept by the
plaintiff, etc. ; held, sufficient notice) ; 1867,
Niagara F. Ins. Co. v. Whittaker, 21 Wis. 335
(contract mentioned in pleadings ; no notice
necessary ; here the pleading alleged a duplicate
original).
" 1811, How V. Hall, 14 East 274 (trover for a
bond ; Lord Ellenborough, C. J. : " Is not the
very nature of the action notice to the defendant
to be prepared for the proof to be offered t ") ;
1835, Denman, L. C. J , in Read v. Gamble, 10
A. & E. 597 (notice not necessary) ; 1867, R. v.
Elworthy, 10 Cox Cr. 579, 582 (Kelly, C. B. :
" The ground of decision is this, that the defend-
ant has notice by the action of the nature and
contents of the document . . . and he could not
be found guilty of the conversion without proof
that tlie document had come into his posses-
sion ■') ; 1852, Tilly v. Fisher, 10 U. C. Q. B. 32
(trover for notes ; original need not be accounted
for; Draper, J., diss.) ; 1862, Rose v. Lewis, 10
Mich. 483, 484 (trover for a note; no notice
required) ; 1820, McCleau v. Hertzog, 6 S & R.
154 (trover for notes; no express notice re-
quired, a notice being implied); 1811, Oswald
V. King, 2 Brev. 471 (trover for a deed; notice
not necessary).
§ 1205 DOCUMENTARY ORIGINALS. [Chap. XXXIX
posed of or retained in his possession, he has notice in effect that, if practicable to procure
it e\idence will be given of their counterfeit character, and of his having passed them as
true. It is notice in law, by which a party is as much bound both in civil and in criminal
cases as by notice in effect. Xotice in fact is notice in form ; notice in law is notice in
effect; and either are sufficient. . . . Knowing that proof of all these facts is as competent
to the prosecutor as the one specifically charged, no injustice is done him."
1865, Elliott, C. J., in McGinnis v. State, 24 Jnd. SOU, 503 (after stating that production
cannot be compelled): " The description of the instrument in the indictment must be
such that it would always serve to notify the defendant of the nature of the charge against
him, save him from surprise, and enable him to be prepared to produce the writing,
when it was his interest to produce it. But when its production would be likely to
work an injury to the defendant by aiding in his conviction, it could not be expected
that he would produce it in response to the notice. It is therefore difficult to perceive
what benefit could result, either to the State or to the defendant, from the giving of such
notice ; while to the defendant it is liable to woi-k a positive injury, by producing an un-
favorable impression against him in the minds of the jury upon his refusal to produce it
after notice."
It seems settled, therefore, that on a charge of larceny or of forgery no
express notice is necessary ; and the principle would also extend to other
charges ; but the nature of the charge will determine the application of the
principle.^ When, however, the writings to be offered are not the subjects of
the very criminal charge — as when similar counterfeits are offered to evi-
dence intent — , the present doctrine will not avail to dispense with notice ;
and the further question will then arise whether such documents need be pro-
3 England: 1830, R. v. Haworth, 4 C. & P. pretences to obtain a promissory note and charge
254, 256 (forgery of a deed ; the defendant had of having obtained possession of it ; no notice re-
siuce destroyed it; notice not required) ; 1853, quired) ; 1889, People v. Swetland, 77 Mich. 53,
R. V. Kitson, 6 Cox Cr. 159 (arson with intent 57, 43 N. W. 779 (forgery of mortgage-dia-
to defraud the insurer ; notice to produce the charge ; notice not necessary, provided defend-
policy required) ; 1867, R. v. Elworthy, 10 id. ant's possession is shown ; as it was not here) ;
579,582 (perjury in stating that there was no 1893, State v. JFlanders, 118 Mo. 227, 237, 23
draft of a certain statutory declaration ; notice S. W. 10S6 (obtaining a warranty deed by false
required ; Littledale, J. : " The exception to the pretences ; notice held necessary ; no precedent
rule is when the other party is by the proceed- cited; 1816, People v. Holbrook, 13 John. 90,
ing itself charged with the possession of the 92 (larceny of bank-notes ; notice not required,
document. Here the indictment does not charge either here or in trover for such things) ; 1887,
the defendant with the possession of the docu- State v. Wilkerson, 98 N. C. 696, 700, 3 S. E.
ment, or give notice that it [is] meant to call on 683 (false pretences in obtaining an order for
him to produce it in evidence ") ; United States: money; express notice not required); 1808,
1875, People!). Hust, 49 Cal. 653 (embezzlement; Com. v. Messinger, 1 Binn. 273, 274, 278, 282
to prove agreement by which defendant took (larceny of a bill ; express notice unnecessary ;
charge of the property, scmMc, notice necessary or also put upon the ground that the accused's
other accounting for original) ; 1859, Armitage possession is not to be presumed) ; 1832, U. S.
V. State, 13 Ind. 441 (indictment for possessing v. Doebler, 1 Baldw. 519, 522 (forgery; a letter
counterfeit notes vnth intent; notice required; by defendant to an accomplice, asking for more
the Court proceeding upon analogy to civil cases of the forged notes ; notice not necessary, be-
and upon the erroneous notion that notice was cause the defendant by implication had notice
always required in civil cases); 1861, Williams "that the passing of other similar notes will
V. State, 16 id. 461 (larceny of pocket-book with be brought into question") ; 1903, M'Knight v.
bank-notes; same ruUng) ; 1865, McGinnis o. U.S., — C. C. A. — , 122 Fed. 926 (no notice
State, 24 id. 500 (larceny of treasury-note; necessary for a document criminating and
distinguishing the case of forgery as requiring privileged).
greater particularity, and not passing upon the For the further bearing of the privilege against
soundness of Armitag-e v. State, it is held that self-crimination by production, see post, § 1209.
for larceny of written instruments no notice is For its bearing as making a notice improper, see
required to produce the writings that are the post, § 2273. For fraudulent suppression, see
subject of the larceny; overruling Williams v. post, § 1207. For stealing as equivalent to loss,
State; see quotation supra); 1859, State v. see ante, § 1201.
Mayberry, 48 Me. 218, 239 (conspiracy by false
1428
§§ 1177-1282] NOTICE TO PEODUCE. § 1206
duced or accounted for at all, being " collateral " and their precise terms not
always material.*
(c) It would seem that at a subsequent trial of the same issue, no new notice
need be given for a material document formerly produced by the opponent or
formerly demanded by the proponent to be produced by the opponent; for
the renewal of the issue is notice that what was needed then will be again
needed now.^
§ 1206. Same : Rule of Notice Satisfied ; (3) Notice of Notice. At some
time early in the 1800s it came often to be urged, and sometimes judicially
approved, that " notice to produce a notice " was not necessary before using
a copy. This rule of thumb, obtaining a certain vogue, was then sought to
be furnished with a reason based on convenience, namely, the necessity of
stopping somewhere in the chain of notices.-' Now this consideration applies
in strictness to only one kind of notice, namely, the notice to produce. There,
indeed, the chain would be endless if once begun ; but it would not be so in
the case of any other notice. This rule of thumb, so far as it is established,
must be regarded as a distinct exception (post, § 1207) to the rule requiring
a notice to produce. But beyond the above-named instance (notice of a notice
to produce) it cannot be said to be established except in a few jurisdictions.
In England, the rulings have been in great conflict, though the exception
seems also to have included the cases of a notice of a hill's dishonor and a land-
lord's notice to quit.^ In this country, the phrase that " notice to produce a
notice is unnecessary " has often been used in this broad form. Nevertheless,
apart from the above single instance (notice to produce a notice to produce),
* Cases cited post, § 1249. 1804, Langdon v. Hulls, 5 id. 156 (notice to a
" 18.51, R. V Robinson, 5 Cox Cr. 183 (notice drawer of the acceptor's non-payment; notice
served for the trial at a first session or term, to produce required); 1809, Philipson w. Chase,
sufficient where the trial was postponed to a 2 Camp. 110 (attorney's bill; notice required,
later term); 1812, M'Dowell v. Hall, 2 Bibb per Lord EUenborough, though he conceded the
610, 612 (document used in former trial, then contrary for the case of a notice to quit) ; 1811,
withdrawn from the file on Court order; notice Aclcland v. Pearce,ib. 599, 601 (notice of a bill's
at trial, sufficient on the facts). Contra: 1819, dishonor; per LeBlanc, J., no notice required);
Knight B. Martin, Gow 103 (after a nonsuit, a 1815, Roberts v. Bradshaw, 1 Stark. 28 (Lord
new notice must be given for a second trial). EUenborough, C. J., required no notice for a
"■ 1826, GifcsoK, J., in Eisenhartu. Slaymaker, letter telling of a bill's dishonor, because it
14 S. & E. 153, 156 ("Every written notice is, "was in the nature of a notice ") ; 1817, Grove
for the best of all reasons, to be proved by a v. Ware, 2 id. .174 (notice to a surety of default
duplicate original ; for, if it were otherwise, the by the principal ; Lord EUenborough held it
notice to produce the original could be proved " not properly a mere notice," and required
only in the same way as the original itself ; notice to produce) ; 1822, Kine v. Beaumont, 3
and thus a fresh necessity would be constantly B. & B. 288, by the C. P., consulting the K. B.
arising ad infinitum to prove notice of the (notice not necessary for notice of dishonor of a
preceding notice ; so the party would at every bill) ; 1827, Lanauze v. Palmer, M. & M. 31
step be receding instead of advancing"). (notice of dishonor; notice required, because
^ 1793, Shaw v. Markham, Peake 165 (a the bills were not those sued on) ; 1827, Colling
letter notifying of the dishonor of a note ; v. Treweek, 6 B. & C. 394 (notice not necessary
Kenyon, L. C. J., required notice) ; 1796, Ham- for a notice, " as, a notice to quit, or a notice of
mond V. Plank, ib. note (written demand in the dishonor of a bill of exchange " ; here, an
trover ; Lord Kenyon did not require notice ; attorney's bill, delivered according to law one
no reason given); 1796, Gotlieb v. Danvers,"! month beforeliand, was held "substantially in
Esp. 455 (notice to take away a crane improperly the nature of a notice" of the amount claimed
built; Eyre, L. C. J., required no notice, but not and of his intention to sue unless paid); 1835,
on this ground ; see post, § 1243) ; 1803, Surtees Swain v. Lewis, 2 C. M. & K. 261, by all the
V. Hubbard, 4 id. 203 (notice of an assignment Judges (notice not necessary for notice of dis-
of a ship and freight; EUenborough, L. C. J., honor; approving Kine y. Beaumont),
required no notice, but semble on other grounds) ;
1429
1206
DOCUMENTARY OEIGEN"ALS.
[Chap. XXXIX
most Courts from time to time recognize that the case of a notice — notice to
quit, notice of dishonor, notice of suit, and the like — is to be governed merely
by the general principle expounded in the preceding section, namely, where
the pleadings by implication give notice to produce the notice, no express no-
tice to produce it is necessary; but otherwise it is required. The rulings,
to be sure,- are by no means harmonious, and often faU. to disclose the prin-
ciple relied upon.^ Certain other principles, however, sometimes applicable,
have served to confuse the precedents on this point : (a) If a notice is made
out in duplicate, and one part is served and the other retained, the latter may
be used, as a duplicate original, without notice to produce the former ; some
rulings dispose of the matter on this principle {post, § 1234). (b) If at the
same time an oral notice or demand was uttered and a written one also
was served, the oral one may be proved without accounting for the written
' A!a.: 1857, Dumas v. Hunter, 30 Ala. 75
(.written demand and notice precedent to action
for unlawful detainer; notice required, since
the statute made the demand, etc., a pre-
requisite) ; 1879, Watson «. State, 63 id. 19, 21
(notice of notice — here, against trespassing —
not required; 1884, King w.'Bolling. 77 id. 594,
596 (treating Dumas v. Hunter as an exception
to the general rule of Watson v. State) ; 1893,
Home Protection v. Whidden, 103 id. 203, 15
So. 567, semble (letter notifying of a fire loss;
notice required) ; Ark. .• 1851, Jones v. Robinson,
11 Ark. 504, 511 (notice to ludorser; notice
required); CaL: 1860, Lombardo v. Ferguson,
15 Cal. 372 (miniug-cla.im notice posted by
plaintifi ; defendant, in offering copy, required
to give notice to produce, or otherwise to ac-
count for it); C. C. P. 1872, § 1938 (notice not
necessary " where the writing is itself a notice " ) ;
1881, Gethin v. Walker, 59 id. 502, 506 (notice
of rescission of contract; notice not required,
under § 1938) ; Del. : 1848, Jefferson v. Conoway,
5 Harringt. 16 (written demaud for goods; notice
necessary, except for duplicate original) ; Ga. :
1871, Frank v. Longstreet, 44 Ga. 178, 187
(notice required for a notice of suit) ; 1888,
Crawford v. Hodge, 81 id. 728, 8 S. E. 208
(notice required for notice to sue ; but here not
necessary because of the latter's loss) ; Ida. :
Rev. St."l887, § 5991 (like Cal. C. C. P. § 1938) ;
///. ; 1872, Brown v. Booth, 66 111. 419 (notice to
surety : notice to produce notice, not necessary) ;
1873, Williams v. Ins. Co., 68 id. 387, 390 (notice
of assessment ; notice to produce notice, not
necessary) ; la. : 1886, McLeuon v. R. Co., 69
la. 320, 321, 28 N. W. 619 (notice of injury; no
notice required); Ki/.: 1828, Taylor v. Bank,
7 T. B. M. 576, 578 (notice for notice of dis-
honor, not required) ; La. : 1821, Abat v. Rion,
9 Mart. 465, 467 (action against indorser of
note, alleging notice of protest ; notice not re-
quired) ; Mich. : 1845, Falkner v. Beers, 2 Doug.
117, 119 (notice to quit; no notice required);
1885, Loranger v. Jardine, 56 Mich. 518, 23
N. W. 203 (notice by wife not to sell liquor to
husband ; notice not required) ; Mo. : 1835,
Hughes V. Hays, 4 Mo. 209 (notice of appeal ;
notice not required ) ; 1 874, Barr v. Armstrong,
56 id. 577, 586 (notice to creditor not to sell
to wife ; notice not required for any notice) ;
Mont. : C. C. P. 1895, § 3229 (like Cal. C. C. P.
§ 1938); Nehr..- 1883, Hawley ». Robinson, 14
Nebr. 435, 437, 16 N. W. 438 (notice to quit;
notice apparently not required ; here the paper
was destroyed) ; N. H. : 1823, Leavitt v. Simes,
3 N. H. 14, 15 (action on a note against the
indorser; notice to produce the notice of non-
payment, not required ); N. Y.: 1 803, Peyton v.
Hallett, 1 Cai. 363, 365, 380 (notice of abandon-
ment of a vessel proved orally; case obscure);
1805, Tower v. Wilsou, 3 id. 174 (notice served,
proved orally I no reason given) ; 1816, Johnson
V. Haight, 13 John. 470 (notice of dishonor of a
note, proved by copy, on the principle that " a
notice to produce a paper might be proved by
parol") ; N. C. : 1829, Faribault o. Ely, 2 Dev.
67 (notice of dishonor; no notice required, ap-
parently per Hall, J., because it was sufficient to
show the fact of posting, uuder the law of the
case; per Toomer, J., also because the action
implied a notice) ; 1893, McMiUan v. Baxley,
112 N. C. 578, 586, 16 S. E. 845 (notice of sale;
notice held not necessary, but on improper
grounds) ; Or. : C. C. P. 1892. § 759 (Uke Cal.
C. C. P. § 1938) ; Pa. : 1826, Eiseuhart v. Slay-
maker, 14 S. & R. 153, 156 (notice to produce
any written notice unnecessary ; see quotation
supra) ; 1864, Morrow v. Com., 48 Pa. 305, 303
("notice to produce a notice is unnecessary";
here, to remove a fence); V. S.: 1813, Under-
wood B. Huddlestone, 2 Cr. C. C. 76 (notice of
note's non-payment; notice required); 1815,
Bank of Washington v. Kurtz, ib. 110 (same);
Utah: Rev. St. 1898, § 3401 (like Cal. C. C. P.
§ 1938); Vt.: 1863, Rutland & B. R. Co. v.
Thrall, 35 Vt. 536, 547 (" There are many cases
where notices given during the progress of a
cause — notices to produce papers and notices
to quit — have been allowed to be proved by
copies and in some instances by parole evidence,
without proof of notice to produce the originals";
but this does not cover " notices essential to the
cause of action," as here, a notice of assess-
ment); 1894, Waterman v. Davis, 66 id. 83, 87,
28 Atl. 664 (notice of assessment; no notice
required, for notices in general; though here a
manifold copy was offered).
1430
§§ 1177-1282] NOTICE TO PEODUCE. § 1207
one, because the latter's terms are not involved {post, § 1243). (c) The fact
of the delivery of a notice, irrespective of its terms, may for the same reason
be proved without accounting for the writing {post, § 1248).
§ 1207. Same : Exceptions to Rule of Notice ; Opponent's Fraudulent
Suppression ; Recorded Deed ; Waiver ; Documents out of the Jurisdiction.
(1) On the principle of convenience considered in the preceding section, a
direct exception may be made for a notice to produce ; no notice of this need
be given ; further than this the exception cannot be properly extended {ante,
§ 1206).
(2) The opponents fraudulent suppression of a document in his posses-
sion, or of a document coUusively secreted by a third person (who thus
virtually acts as the oppbnent's agent), should exempt from the require-
ment of notice ; because this suppression amounts to a refusal to produce, and
the only object of a notice {ante, § 1202) is to make it clear that the oppo-
nent's failure to produce amounts to a refusal. This exception is generally
recognized.^
(3) The opponent's absence from the jurisdiction, or the absence of the
documents out of the jurisdiction, does not dispense with the necessity for
notice, even though in a given instance the opponent might be known before-
hand to be unlikely to respond by production.^
(4) That the documents are subject to the privilege against self-crimination
is in itself no excuse ; for the opponent might choose to produce without
^ England : 1 803, Leeds v. Cook, 4 Esp. 256 had fraudulently absconded with plaintiff's title-
(the opponent had secreted a document fraud- document; neither notice nor further search
nleutly taken from a witness of the proponent required); Ut. Rev. St. 1898, § 3401 (like Cal.
summoned under a duces tecum ; notice not re- C. C. P. § 1938) ; 1898, State v. Marsh, 70 Vt.
quired) ; 1831, Doe v. Ries, 7 Bing. 724 (loss by 288, 40 Atl. 836 (defendant gave a note to the
a stealing instigated by the defendant; notice jail-housekeeper, to deliver to a co-defendant,
not necessary); United States: Cal. C. C. P. and it was delivered ; the housekeeper allowed to
1872, § 1938 (notice not necessary "where it has state its contents; whether the prosecution had
been wrongfully obtained or withheld by the intentionally put the original out of its power,
adverse party ") ; Ida. Rev. St. 1887, § 5991 (not depends on trial Court's discretion),
necessary where the writing " has been wrong- Compare the doctrines as to detention by a
fully withheld or obtained by the adverse third person (post, §§ 1212, 1'213) and as to loss
party") ; 1857, Sellman v. Cobb, 4 la. 534, 537 (ante, § 1197).
(defendant, obtaining from the plaintiff in Court * 1879, McAdam v. Spice Co., 64 Ga. 441
a note for inspection, handed it to the sheriff to (rule applied even where the paper belonged
levy on as the plaintiff's; copy allowed with- to a party who was out of the State); 1880,
out notice); 1855, Bell v. Hearne, 10 La. An. Phillips v. Lindsey, 65 id. 139, 143 (same; but
515, 517 (land-patent cancelled and delivered; in such case notice to the local attorney suffices,
destruction bv opponent, sufficient) ; Mont. C. of course) ; 1899, Missouri K. & T. E. Co. v.
C. P. 1895, § 3229 (like Cal. C. C. P. § 1938) ; Elliott, 2 Ind. T. 407, 51 S. W. 1068 (documents
1852, Neally v. Greenough, 25 N. H. 325, 330 kept by opponent without the jurisdiction;
(fraudulent possession by opponent; notice not notice apparently required); 1860, Carland v.
necessary); 1824, Eure v. Pittman, 3 Hawks Cunningham, 37 Pa. 229 (opponent's absence
364, 373 (stated per Hall, J., but not decided, from the jurisdiction does not dispense). That
that opponent's fraudulent suppression dispenses notice to the attorney suffices in such a case, see
with notice) ; Or. C. C. P. 1892, § 759 (like Cal. post, § 1208.
C. C. P. § 1938) ; 1815, Gray v. Pentland, 2 S. The following statute creates a special ex-
& R. 23, 31 ("where the original is in the hands caption: P. E. I St. 1889, § 58 (in an action
of the adverse party who has given it to a third against an absent debtor, copies of writings to
person with a view of secreting it," semble, no him may be used without notice to produce, if
notice necessary) ; 1831, Bank w. Brown, Dudley it is proved that the originals were delivered to
62, 65, semble (destroyed in opponent's posses- him or received by him or duly mailed to him in
sion; no notice necessary) ; 1852, Cheatham v. time to receive them before leaving the place of
Riddle, 8 Tex. 162, 166 (defendant's principal the address).
1431
§ 1207 DOCUMENTARY ORIGINALS. [Chap. XXXIX
exercising the privilege, and until notice has been given it cannot be known
whether he will do so.^
(5) Under statutory provisions allowing proof of a recorded deed to be
made by copy when the original is " lost or out of the power " of the pro-
ponent {post, § 1225), the precise statutory conditions suffice to allow the
use of a copy without notice, even though the opponent's possession is the
fact which puts the original "out of the power" of the proponent.*
(6) An express waiver of notice, by agreement of counsel pro lite, or
otherwise, suffices to exempt from notice; and there may be an implied
waiver.^
(7) Where an agreement, or other transaction, turns out on the testimony
to be in writing, and in the opponent's possession, the question may arise
whether the party endeavoring to prove it may do so without having given
notice to the opponent. This in truth involves the principle of the Parol
Evidence (Integration) rule, for the answer depends upon the inquiry who
has the burden of shovdng the agreement to he in writing {post, § 2447).
§ 1208. Same : Procedure of Notice ; Person, Time, and Tenor. (1) As to
the person notified, the question arises whether, when the document is in the
actual custody of a third person as agent for the opponent, notice to the agent
only suffices. Here it would seem that such a notice was insufficient, unless
it appeared that the agent was a person having a duty to communicate the
notice to the opponent, and this will usually not be the case except for one
who is an agent for the purposes of the trial, i. e. an attorney ; as to this
particular class of agents, it is well settled that notice to the attorney suffices.
But this situation is often not distinguished in the rulings from another,
namely, the case of notice to an agent for the trial, i. e. an attorney, who
is not in possession of the document; here it would seem that the proper
person is notified, and that it is merely a question as to the sufficient time
allowed by the notice for getting the document. The precedents on these
two situations are not harmonious.^ A notice to the opponent only is suffi-
' 1834, Bate v. Kinsey, I Cr. M. & R. 38 499 (agreement by counsel that all letters mate-
(refusal to produce on ground of privilege does rial would be produced without notice ; notice
not render notice unnecessary). Contra: 1897, not needed); 1853, Dwinell u. Larrabee, 38 Me.
State w. McCauley, 17 Wash. 88, 49 Pac. 221 464, 466 (a voluntary offer to produce suffices) ;
(the requirement of notice not to be adopted 1855, Farmers' & M. Bank v. Lonergan, 21 Mo.
" as an invariable rule " ; here checks were held 46, 50 ( the plaintiff was not allowed to prove its
by a defendant charged with using public books by deposition ; the defendant also was
moneys, and privilege could be claimed ; notice then not allowed to prove the plaintiff's books by
held not necessary). ... deposition without notice, the plaintiff's attempt
Compare the cases in which notice was im- to prove by deposition not being a waiver) ;
plied from the nature of a criminal charge {ante, 1804, Jackson v. Van Slyck, 2 Caines 17S (the
§ 1205) ; they assume notice of some sort to be opponent's admission of a document's existence,
necessary. For the right to prove the contents of on cross-examination, does not dispense with
a privileged document, see post, § 1209. notice).
* 1866, Bowman v. Wettig, 39 111. 416, 421 i England: 1773, Attorney-General v. Le
{statutory mode of testifying that recorded deed Merchant, 2 T. R. 201, note (" the rule wliich
is not in offeror's power ; notice to grantee in has always been followed ... is that notice be
possesssion of origmal is not required) ; 1857, given to the attorney or agent of the adverse
Gilbert v. Boyd, 25 Mo. 27 (under the statute, party ") ; 1789, Gates v. Winter, 3 id. 306
no notice to an opponent in possession is (same; notice to opponent himself not neces-
ueeded). sary); 1795, Read i\ Pas-ser, 1 Esp. 213. 216,
o 1883, Duringer v. Moschino, 93 Ind. 495, semble (notice to agent, insufficient, on the
1132
§§ 1177-1282]
NOTICE TO PEODUCE.
1208
cient, even though the document is not in his actual custody but is held for
him by a third person or agent ; for the party from whom production is
expected must always be regarded as the appropriate person to notify.^
The person notifying may be any one acting on behalf of the proponent for
purposes of trial.^
(2) The time of notice depends on no technical considerations nor fixed
rules ; the question is merely whether the time allowed was such that the
opponent was fairly and truly able to obtain it, ready for production, if he
had wished to :
18i6, Alderson, B., in Lawrence v. Clark, 14 M. & W. 250, 253: "All these cases
depend on their particular circumstances; and the question in each case is whether the
notice was given in reasonable time to enable the plaintiff to be prepared to produce the
document at the time of the trial " ; Pollock, C. B. : " What is sufficient in one case may
not be so in another ; and much therefore must be left to the discretion of the presiding
judge, subject of course to correction by the Court."
The matter is therefore distinctly one for the determination of the trial
Court, for it must depend entirely on the circumstances of each case. The
numerous rulings on the subject ought not to be treated as precedents;*
facts) ; 1816, Doe v. Grey, 1 Stark. 283 (to the
wife of the defendant's attorney the night be-
fore, at her house, insufficient) ; 1829, Aflalo v.
Fourdrinier, M. & M. 334, note (notice to the
attorney two days before, the documents being
with the client at a distance, held insufficient) ;
1832, Houseman v. Roberts, 5 C. & P. 394
(should be served on the attorney) ; 1838, Byrne
V. Harvey, 2 Moo. & Rob. 89 (notice to an attor-
ney not in time to communicate with the client,
held insufficient) ; 1849, R. v. Hankins, 3 Cox
Cr. 434, 436 (notice to attorney, sufficient) ;
United States: 1873, Lathrop v. Mitchell, 47
Ga. 610, 612 (notice to an agent, held insuffi-
cient on the facts) ; 1880, Phillips v. Lindsey,
65 id. 139, 143 (notice to attorney of an oppo-
nent out of the State, sufficient) ; Miss. Annot.
Code, 1892, § 222 (any notice required to be
served, to be as valid if served on an attorney
as on the party) ; 1831, McPherson v. Rathbone,
7 Wend. 216 (notice to the opponent's attorney
by subpoena, not sufficient as notice for docu-
ments in the party's own custody) ; 1837, Mat-
tocks V. Stearns, 9 Vt. 326, 33,5 (opponent
absconded from the State ; notice to his attorney
held sufficient ; " the party cannot be required
to follow him to the world's end ").
2 1825, Taplin v. Atty, 3 Bing. 164 (to a
sheriff's attorney, for a document in the under-
sheriff's hands, sufficient) ; 1897, Morehead Bkg.
Co. u. Walker, 121 N. C. 115, 28 S. E. 253
(note in attorney's possession ; notice to the
client sufficient).
Distinguish the question already discussed
ante, § 1200; there the inquiry is whether the
custody.of a third person is to be considered as
the opponent's possession at all, irrespective of
the proper method of notice.
3 1834, Seely v. Cole, Wright 681 (notice by
any one by authority of the offeror, sufficient) .
* Besides the following cases, compare the
rule for documents present in Court (ante, § 1204) ;
England: 1803, Sims v. Kitchen, 5 Esp. 46
(notice at seven o'clock the evening before
trial, to a servant of the attorney, held insuffi-
cient) ; 1829, Tindal, C. J., in Aflalo i'. Four-
drinier, M. & M. 334, note ("There mnst be at
least a possibility of getting the instruments
in consequence of the notice"); 1830, R. v.
Haworth, 4 C. & P. 2,54 (since the Assizes began,
held insufficient ; a reasonable time before the
Assizes required) ; 1832, Houseman v. Roberts,
5 id. 394 (notice on Saturday, for Monday's
trial, not sufficient) ; 1832, Doe v. Spitty, 3 B.
6 Ad. 182 (notice the day before the Assizes,
insufficient on the facts) ; 1833, Trist v. John-
sou, 1 Moo. & Rob. 259 (notice served on the
attorney after Assizes begun, held insufficient) ;
1833, R. V. Ellicombe, ib. 260 (notice served on
the defendant after Assizes begun, the defend-
ant being in jail, held insufficient) ; 1836,
George v. Thompson, 4 Dowl. Pr. 656 (notice
to the attorney the day before the Assizes, in-
sufficient ; " it is peculiarly a question for the
judge at the trial ") ; 1836, Atkins v. Meredith,
lb. 658 (notice " on the evening previous to the
trial is in general sufficient " ; but here to the
attorney for books in the client's hands, held
insufficient) ; 1839, Holt v. Miers, 9 C. & P. 191,
195 (the night before, insufficient) ; 1839, Sturge
V. Buchanan, 10 A. & E. 598, 603 ("in all
cases depends on circumstances ") ; 1840, Hughes
V. Budd, 8 Dowl. Pr. 315, 317 (a notice served
on Sunday, the night before the trial, on the
attorney, distant from his office, held insuffi-
cient) ; 1840, Firkin v. Edwards, 9 C. & P. 478
(sufficiently early, on the facts ; Williams, J. :
" The question is whether under all the circum-
stances reasonable notice has been given ") ;
1840, Gibbons w. Powell, ib. 6-34 (notice the night
before to the attorney, held sufficient, the docu-
ment being one which he and not the client
1433
§ 1208
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
they were for the most part a wasteful expense of time for the appellate
Judiciary.
Where the opponent is out of the jurisdiction, it would seem that the time
of notice should not be affected by this fact, since, in general, for the pur-
poses of a trial, a party must himself bear the risk of his absence from the
scene, — especially as in the present instance the only function of a notice is
to make it clear that the proponent is reasonably unable to obtain the docu-
ment. Where only the document is out of the jurisdiction, however, the
reasonableness of the time of notice should be affected by this circumstance ;
for the opponent, being otherwise ready for trial, might be equally disposed
to produce the document if notified in time to obtain it.® That the opponent
would have); 1841, Foster v. Pointer, ib. 718
(notice the day hefore, held sufficient where it ap-
peared that the document was destroyed) ; 1842,
Lloyd V. Mostyn, 2 Dowl. Pr. s. s. 476, 480
( Parke, B. : " [the principle is] that reasonable
time to produce a document must be given " ;
here the defendant long knew that tlie docu-
meut would be wanted, and a notice the day
before trial was held sufficient) ; 1845, Law-
rence !'. Clark, 14 M. & W. 250 (notice in Lon-
don the evening before a Middlesex trial, not
sufficient) ; 1847, Sturm v. Jeffree, 2 C. & K.
442 (since the notice is "for general conven-
ience and for the attainment of justice," notice
durinc; trial suffices if practicallv in ample time) ;
1849, R. V. Hankins, 3 Cox Or. 434, 436 (the day
before the trial, sufficient) ; 1852, R. v. Hanip,
6 id. 167, 169 (notice the day before the trial
to the London agents of the country attor-
ney, sufficient); 1853, R. v. Kitson, ib. 159
(notice the day before, at a residence thirty
miles from court, insufficient); Can.: 186S,
Abel V. Light, 6 All. N. Br. 423 (notice on the
day before trial, held sufficient on the facts) ;
Ala.: 1884, Littleton v. Clayton, 77 Ala. 571,
574 ("a reasonable time, — sufficiently long to
enable a party to procure and produce it with-
out due inconvenience ") ; Cal. : 1 859, Burke v.
T. M. W. Co., 12 Cal. 403, 407 ("a question
of discretion"); G. C. P. 1872, §§ 1855, 1938
("reasonable uotice"); 1898, People «. Vasalo,
120 id. 168, 52 Pac. 305 (opponent's refusal to
produce within statutory time, whether that in-
terval is needed or not; secondary proof al-
lowed); Conn.: 1889, State «. Swift, 57 Conn.
508, 18 Atl. 664 (notice at trial, with readiness
to give time for production ; opponent not ask-
ing time nor producing ; held sufficient) ; Ham. :
1876, R. V Lenehan, 3 Haw. 714, 716 (the trial
Court determines reasonableness) ; Ida. : Rev.
St. 1887, §§ 5991, 5999 (" reasonable notice") ;
III.: 1842, Cummiugs v. McKinney, 5 111. 57
(discretion of the trial Court); 1861, Warner
V. Campbell, 26 id. 282, 286 (two days before
trial, sufficient on the facts) ; 7a. .• 1859, Green-
ough V. Shelden, 9 la. 503, 506 (" reasonable
time ") ; 1898, Brock v. Ins. Co., 106 id. 30, 75
N. W. 683 (trial Court's discretion) ; La. .- 1844,
HiUs V. Jacobs, 7 Rob. 406, 413 (uotice suffi-
cient on the facts) ; 1849, Plympton v. Pres-
ton, 4 La. An. 360 (notice at the trial, sufficient
on the facts); Me.: 1829, Emerson v. Fisk, 6
1434
Greenl. 200, 202, 206 (notice on the first day of
the trial, the opponent's residence being a few
rods away, held insufficient, under a rule of
Court requiring notice before the trial) ; Md. :
1836, Divers n. Fulton, 8 G. & J. 202, 208 (notice
to the attorney two days before trial, held suffi-
cient on the facts ; the notice must be "reason-
able in point of time ") ; 1852, Glenn v. Rogers,
3 Md. 312, 320 ("no precise rule can be laid
down " ; here notice just before drawing the
jury was held insufficieut) ; Mich. : 1888, Julius
K. Optical Co. V. Treat, 72 Mich. 599, 40 N. W.
912 (time unreasonable on the facts); Minn.:
1866, Winona v. Huff, 11 Minn. 119, 129 ("de-
pends upon the circumstances in each case, and
is a preliminary matter addressed to the judg-
ment of the Court") ; Mont.: C. C. P. § 3229
("reasonable notice"); Nei\: Gen. St. 1885,
§ 3449 ("reasonable notice"); Or.: C. C. P.
§ 759 (" reasonable notice ") ; S. C. .- 1901,
Worth o. Norton, 60 S. C. 293, 38 S. E. 605 (two
hours' notice for a document in another county,
held insufficient) ; Tenn. : 1808, Kimble v. Joslln,
1 Overt. 379 ("reasonable notice") ; 1872, Burke
V. Shelby, 9 Heisk. 175, 177 (notice given in the
plea, sufficient) ; Utah : Rev. St. 1898, §§ 3401,
3410 (" reasonable notice").
» The rulings do not always make thi.« dis-
tinction, and are not hsirmonious : England :
1824, Drabble v. Donner, Ry. & Mo. 47 (four
days' notice to a person domiciled in Denmark,
but present in London, the documents presum-
ably being in Denmark, held sufficient); 1825,
Bryan v. Wagstaff, 2 C. & P. 125, 127 (party
abroad, notice given two months before ; Abbott,
C. J. : "I think that a person leaving the
country and putting his case into the hands of
his attorney mnst be taken to leave in his
attorney's hands papers material to the cause ;
... if it were not so, a man might, as soon as
notice of trial was given, set sail for the East
Indies, and the other party must then delay
proceeding with his cause' till his return ") ;
1840, Hughes V. Budd, 8 Dowl. Pr. 315, 317 (a
week's notice, served during opponent's absence
in the North, sufficient) ; 1848, Ehren.sperger v.
Anderson, 3 Exch. 148, 153, 154 (party from
India notified while in London before the trial;
intimated to be insufficient) ; United States :
1862, Bushnell v. Colony, 28 111. 204 (letter in
New York ; a day or two's notice, not sufficient) ;
1889, Mortlock v. Williams, 76 Mich. 568, 573,
§§ 1177-1282]
NOTICE TO PRODUCE.
§ 1209
is physically or legally incapable of personal appearance is of course imma-
terial as regards the time of notice.^
(3) As to the tenor and form of the notice, first, it should be in writing, —
not so much because it is thereby more correctly or surely provable, as.
because it is intended to procure the document and thus is more likely to
attain its purpose if filed with the other papers in the causeJ Next, the
particularity of the description of the document desired should depend on no
formal tests ; it is enough if the document desired is so described that it
could be readily known by the opponent and with certainty distinguished
from others :
1839, Denman, L. C. J., in Rogers v. Custance, 2 Moo. & Rob. 179, 181, " said that the
Court did not mean to lay down any general rale as to what the notice ought to contain ;
that much must depend on the particular circumstances of each case ; but where enough
was stated on the notice to leave no doubt that the party must have been aware the
particular instrument would be called for, the notice must be considered sufficient to let
in secondary evidence." *
§ 1209. Same : (c) Failure to Produce ; what constitutes Non-Production.
It has already been seen (ante, § 1199) that the present excuse for a propo-
nent's non-production rests on the broad fact that he cannot obtain it from
the opponent, — a fact involving three separate elements, namely, the oppo-
nent's possession, a demand or notice to produce, and his failure to produce.
43 N. W. 592 (notice for letters in another State,
insufficient on the facts) ; 1892, Pitt v. Emmons,
92 id. 542, 544, 52 N. W. 1004 (notice on same
day, possessor being in another State, insuffi-
cient) ; 1893, Dade v. Ins Co., 54 Minn. 336, 56
N. W. 48 (notice at trial for documents in
another State, insufficient on the facts).
* 1851, R. V. Robinson, 5 Cox Cr. 183 (on the
defendant in jail, sufficient ; Erie, J. : " The
argument [against it] . . . miglit be jnst as
applicable to a case, where the notice was served
on a person bed-ridden or incapable of moving ").
• ' It always is in writing, and is so assamed
to be in the preceding cases (except when given
at the trial, ante, § 1204) ; but the decisions to
that effect are rare: 1842, Cummings u. Mc-
Kinney, 5 111. 57.
' The rulings vary in their requirements, and
should not be taken as precedents for the spe-
cific facts: England: 1816, Harvey w. Morgan, 2
Stark. 17, 19 (mistake in the title of the plaintiff
assignees, held fatal) ; 1825, Jones v. Edwards,
1 McCl. & Y. 139 (" notice to produce letters
and copies of letters, also all books relating to
this cause," held insufficient) ; 1825, France v.
Lncy, Ry. & Mo. 341 (to prove notice of dis-
honor, a general notice of all letters, papers, etc.,
held insufficient) ; 1 837, Jacob v. Lee, 2 Moo. &
Rob. 33 (a notice to produce " all and every
letters written by the said plaintiff to the said
defendant relating to the matters in dispute in
this action," held sufficient); 1839, Rogers v.
Custance, ib. 179 (a general notice to produce
all books, extracts, etc., held sufficient on the
facts; see quotation supra); 1841, Morris v.
Hanser, ib. 392 (a general notice to produce all
letters between the parties from 1837 to 1841,
held sufficient) ; 1845, Lawrence v. Clark, 14
M. & W. 250, 251 (notice wrongly entitled as
to the Court ; held sufficient ; Alderson, B. :
" Would the notice be bad if one of the names
were spelled wrong ? The question is whether
the party has had snch a notice as to justify the
Court in admitting the secondary evidence " ;
disapproving Harvey u. Morgan); 1847, Smyth
V. Sandeman, 2 Cox Cr. 239 (notice specifying
three letters "and also all others, etc., in the
general words usually employed " ; held insuf-
ficient, semhle, as to any other than the three
specified) ; 1858, Justice v. Elstob, 1 F. & F. 256,
258 (description of receipts held sufficient) ;
1858, Graham v. Oldis, ib. 262 (description of
agreement held sufficient) ; United States ; 1859,
Burke v. T. M. W. Co., 12 Cal. 403, 408 (" Such
description as will apprise a man of ordinary in-
telligence of the document desired is enough") ;
1839, State v. Lockwood, 5 Blackf. 144 (terms
of notice not sufficiently shown) ; 1840, Bemis
V. Charles, 1 Mete. 440, 443 (notice sufficient
where it was "impossible for the defendant to
have doubted" what it referred to); 1895,
McDowell V. Ins. Co., 164 Mass. 444, 41 N. E.
665 (notice to produce all letters, etc., received
by defendant from plaintiff since the time of
the fire alleged in the declaration, sufficient) ;
1873, Lockhart v. Camfield, 48 Miss. 471 (title
bond already once produced on notice; ambig-
nous notice to produce a " deed," sufficient) ;
1825, Vasse v. Mifflin, 4 Wash. C. C. 519 (notice
to produce all letters relating to moneys received
under an award ; sufficient).
The " reasonable notice " of the Codes cited
supra, par. 2, would apply also to the tenor of
the notice.
VOL. II. — 28
1435
§ 1209 DOCUMENTAET OEIGINALS. [Chap. XXXIX
With this third element, as completing the fact upon which the proponent's
excuse rests, we are now concerned.
(1) (a) Inquiring, first, what situation amounts to non-production, in the
above sense, it may be noted that if the opponent produces a document
which the proponent claims not to be the one desired, the latter is not obliged
to accept it as the one in issue, so as to be precluded from proving otherwise
the contents of the desired document ; ^ for the opponent's production of this
one alone is virtually a failure to produce the one actually desired, and the
proponent has thus established his excuse and may proceed to prove other-
wise the terms of the true but non-apparent document.
(6) If the opponent refuses to produce because of a privilege against self-
incrimination, is this refusal insufficient, for the purpose of establishing the
proponent's excuse and allowing him to prove the terms otherwise ? By no
means ; for it is still a refusal, though an allowable one, and the proponent's
excuse is equally established. The permission to the proponent to proceed
to establish the document's terms by other evidence is not a violation of the
privilege, for the privilege (post, § 2264) is merely that the possessor himself
shall not furnish criminating evidence, and not that others shall not through
their own witnesses do so.^ Whether an unfavorable inference or admission
should be drawn as to the contents from the claim of privilege is a different
question (post, §§ 2272, 2273).
(2) It may be asked, Why should the opponent's mere failure or refusal to
produce, in a case where he is not protected by a privilege, suffice to establish
the proponent's excuse, namely, his inability to obtain the original? Since
such an inability is the root-notion which allows him to prove the document's
terms otherwise (ante, § 1199), how can he claim to be unable since by a
Mil of discovery, or in more modern times by a statutory order for production,
he could compel the production ? It is perfectly settled that this extreme
step is not required of him ; ^ and the reasons seem to be sound, namely,
first, that the inconvenience of employing an equitable bill of discovery, or
even a statutory order, for every document needed, would be such that for
practical purposes the opponent's mere refusal on demand puts the propo-
nent in the position of being unable to obtain the original, and secondly,
because it does not fairly lie in the mouth of an opponent, refusing pro-
duction without excuse and thus himself creating the dilemma, to insist
^ 1859, Hill V. Townsend, 24 Tex. 575, 580 self. . . . But the defendant, LeMerchant, is not
(party held not bound to accept document compellable to produce those letters against
tendered by opponent, but allowed to go on himself; for he is liable to no punishment at
and prove contents of document desired) ; 1898, all if he do not, but is left at his entire liberty
Helzer v. Helzer, 187 Pa. 243, 41 Atl. 40 (plain- either to do it or not; the only consequence
tiff had offered evidence of loss of note, and must be that these copies (which "must be sworn
defendant then produced a document alleged to to be true copies) are read against him ") ; 1829,
be the note; plaintiff not required either to R. v. Barker, 3 C. & P. 591, 593; 1897, State v.
accept it as the original or to submit it to her Boomer, 103 la. 106, 72 N. W. 424.
witness for identification). For the tiecessiti/ of notice, even where the
^Accord; 1773, Attorney-General w. LeMer- privilege would protect from production, see
chant, 2 T. R. 201, note ("But it is said that ante, §§ 1205, 1207.
this [general rule] does not hold in criminal ' 1852, McLain ». Winchester, 17 Mo. 49, 54;
cases, because the consequence of it would be to 1816, Alexander v. Coulter, 2 S. & R. 494.
compel a man to produce evidence against him-
1436
1177-1282]
OPPONENT'S NON-PEODUCTION.
§ 1211
upon so strict a test for judging the proponent's claim of inability to obtain
the document.
§ 1210. Same : Consequences of Non-Production for the Opponent (Exclu-
sion of Evidence ; Default ; Inferences). (1) Where an opponent in possession
refuses to produce on demand, he is afterwards forbidden to produce the docu-
ment in order to contradict the other party's copy or evidence of its contents.^
This is in one sense a proper penalty for unfair tactics ; but the original re-
fusal may also be regarded as a judicial admission, in advance {post, § 2588),
of the correctness of the first party's evidence to this extent. (2) The same
penalty (and sometimes even the more serious one of judgment for default) is
provided by most of the statutes which entitle a party to discovery and in-
spection {post, § 1858) of the opponent's documents before trial.^ But the
two rules are independent. (3) The jury is entitled to make certain inferences
from the non-production of documents on demand ; but this is the consequence
of an independent principle {ante, § 291).
§ 1211. (3) Detention by Third Person ; History. Historically, this ex-
cuse for non-production was one of the earliest to be established. Under
the doctrine of profert {ante, § 1177) it was well settled that profert was not
necessary of an instrument belonging to a third person, for the reason that
the proponent " hath not any means to obtain the deed " ; ^ though a modi-
^ England: 1769, Yates, J., in Tloew. Harvey,
4 Burr. 2484, 2489 ; 1834, Doe v. Cockell, 6 C. &
P. 52.5, 528 (Alderson, B. : "You must either
produce a documeut when it is called for or
never") ; 1835, Lewis v. Hartley, 7 id. 405 (ap-
plied to a dog; defendant not allowed to pro-
duce it later, if not produced on notice by
opponent) ; 1840, Doe v. Hodgson, 12 A. & E.
135 ("the party who refused to produce the writ-
ing could not afterwards be at liberty to give it
in evidence"); United States: 1829, Bank v.
M'Williams, 2 J. J. Marsh. 256, 259, semble
(failure to produce precludes other evidence) ;
1827, Bogart v. Brown, 5 Pick. 18 (a defendant
refusing to produce an original, not allowed to
use a copy admitted by the plaintiff to be cor-
rect); 1873, Doon v. Donaher, 113 Mass. 151;
1881, Gage v. Campbell, 131 id. 566 ("a party
who has suppressed a written document, and
refused to produce it upon notice, and so com-
pelled the adverse party to resort to secondary
evidence thereof, is not afterwards entitled to
offer proof of its contents ") ; 1 888, McGinness
V. School District, 39 Minn. 499, 41 N. W. 103;
1854, Munford v. Wilson, 19 Mo. 669, 673 (where
defendant set up the custody of a third person,
without stating the paper to be beyond the de-
fendant's control, a copy was taken for true) ;
1899, Barnes v. Lynch, 9 Okl. 11, 156, 59 Pac.
995 (rule applied against a plaintiff who had
removed his books from the jurisdiction to pre-
vent inspection by receiver) ; 1 895, Powell v.
Pearlstine, 43 S. C. 403, 21 S. E. 328. Contra :
1870, Moulton v. Mason, 21 Mich. 363, 370
( Campbell, C. J. : " It is not a rule calculated to
further the eliciting of truth ; it is simply an at-
tempt to punish one party by allowing his adver-
sary to recover what does not belong to him or
to defend unjust^ against a proper claim ") ;
1879, Tewksbury v. Schulenberg, 48 Wis. 577,
580, 4 N. W. 757.
* The statutes are collected post, § 1858 ; the
following rulings illustrate their use: 1884,
Brown v. Farley, 38 N. J. Eq. 186, 190 (defend-
ant refusing to produce his deed for inspection
and photographing, not allowed to give it in evi-
dence, under express statute) ; 1897, Flemming
V. Lawless, 56 id. 138, 38 Atl. 864 (similar; the
statute is " a mere declaration of a power which
already existed in the Court ").
^ 1537, Anon., Dyer 29 b (in trespass, defend-
ant pleaded a lease for years from a lessee for
life from the king by letters patent ; and it was
argued that the letters patent must be shewn ;
to which three judges agreed ; but three others
were opposed; "for a sub-collector, an under-
sheriff, and an incumbent do not shew the king's
patents, because they do not belong to them,
and they have no means to make their masters
or grantors shew them ") ; 1568, Estofte v.
Vaughan, Dyer 277 a (cestui in remainder not
required to produce the deed, because it " does
not belong to him but to the feoffees") ; 1591,
Abbot of Strata Marcella's Case, 9 Co. 24 a (der
fendant claimed a certain privilege under feoff-
ment from D., who was grantee of the fee of the
manor from the king, who had by statute con-
fiscated it from an abbot, who had the privilege
by charter ; held, that the abbot's charter need
not be shown in profert ; the plaintiff conceded
that profert was not necessary for the charter,
" because the charter was made to a stranger ") ;
1602, Dagg V. Penkevon, Cro. Jac. 70 (similar
to Anon., supra; profert not required); 1609,
Huntingdon v. Mildmay, ib. 217 (similar to
Estofte V. Vaughan, supra) ; 1631, Gray v.
1437
§ 1211 DOCUMENTARY ORIGmALS. [Chap. XXXIX
fication of tliis was also established, not excusing from production where the
proponent claimed anything in the right of the grantee owning the deed.^
This early form of the doctrine, however, does not serve to solve the majority
of our modern cases, because since the rule of profert applied only to docu-
ments under seal, i.e. chiefly title-deeds (ante,^ 1177), and since the third
person owning them was privileged not to disclose his title-deeds {post,
§ 2211), the case presented was the clear one of a third person from whom
production could not be compelled by any process of law (post, § 1213). But
nowadays the greater number of documents are of a sort which would not be
thus privileged under a subpceua duces tecum. In one respect, moreover, the
rigor of the older rule no longer obtains ; for the modification above-mentioned,
by which non-production was not excused in a case of claim of right under
the deed, left the proponent without the means of proving a document which
it was legally impossible for him to obtain, — a result everywhere repudiated
to-day, although certain analogous English rulings {post, § 1212) may be per-
haps traced to the tradition of this older notion.
§ 1212. Same : (a) Person within the Jurisdiction. (1) If the person pos-
sessing the document is by reason of a privilege legally not compellable to
produce it, this is clearly an excuse for non-production :
1848, Pollock, C. B., in SayerT. Glossop, 2 Exeh. 409, 410 : " As the person who has the
legal custody of the register is not by law compellable to produce it, the pai-ty who stands
in need of the evidence which that document affords is not to suffer from its absence at
the trial. ... If in point of law you cannot compel a party who has the custody of a
document to produce it, there is the same reason for admitting other evidence of its con-
tents as if its production were physically impossible."
The only argument to the contrary could be drawn from the possibility that
the privilege would not be exercised, but this is at the most a contingency,
and the ascertaiament of the fact of such willingness might entail too much
Fielder, Cro. Car. 209 (debt on bond assigned not be compelled to shew the first deed"; but
by bankrupt-commissioners ; profert of bond not " the opinion of tlie whole Court was against the
required, " because he comes in by act in law, plaintiff, and the reason was because he is privy
and hath no means to obtain the obligation") ; in the estate of the rent and claims by the first
1636, Stockman v. Hampton, ib. 441 (justifica- grant; . . in many cases a man shall not plead
tion for trespass under a license from a remain- a deed or release that doth not belong to him
dermau ; plea held good, " without showing the nor can have an action to recover, without shew-
deed ; first, because the deed doth not belong to ing it ; ... so the lord by escheat shall not
him, . . . and he hath not any means to obtain plead a release made to the disseisor by the dis-
the deed ; and it should be mischievous to those seisee witliout shewing it ; neither shall he in
who claim under such a deed if they should lose remainder be received without shewing the
their estates unless tliey might produce it ") ; deed ; and yet it doth not belong to him, nor
ante 1767, BuUer, Nisi Prius, 252 ("Where a has he remedy to get it. . . . [But] there is
person is an utter stranger to a deed, there in another maxim in law, that where a man is
pleading he is not compelled to shew it "). stranger to a deed, and doth neither claim the
This doctrine is, in the earlier cases, not thing comprLsed in the grant nor anything out
always to be distinguished from that of coUater- of it, nor doth anything in the right of the
alness ( post, § 1252). grantee as bailiff or servant, there he shall plead
2 1611, Dr. Leyfield's Case, 10 Co. Rep. 88a the patent or deed without shewing it") ; 175S,
(justification in trespass as servant of a lessee Titley v. Foxall, Willes 688 (justification of bat-
for years from a lessee for life by letters patent tery under process of a Court erected by letters
from the queen ; it was argued that " the fee patent ; profert of letters not required, because
remains in the lessor or donor to whom the deed the defendant was a stranger not claiming under
belongs and to no other, and therefore he shall them).
1438
§§ 1177-1282] DETENTION BY THIRD PERSON.
§ 1212
inconvenience. The orthodox doctrine is that where a privilege applies, other
evidence of contents may be given.^
(2) It is also often said that where the third person ia hostile and fraudu-
lently detains the document, this fact of itself suffices to excuse non-produc-
tion,^ though such an instance is perhaps often equally well disposed of by
the doctrine of loss {ante, § 1194) or of the opponent's possession by the hands
of an agent {ante, § 1200).
(3) Where neither of the above situations exists, and the case is an ordi-
nary one of possession by a third person, it is clear that a demand at least
must have been made ; and the question as to which a difference of opinion
exists is whether the compulsory process of law should also have been in-
voked by subpoena duces tecum. A number of Courts seem to lay down the
fixed rule that a subpoena is necessary;^ direct decisions to the contrary are
rare.* The greater number of rulings give no definite solution, and seem to
have been based on the circumstances of the case in hand.^ The truth is
1 1854, Phelps v. Prew, 3 E. & B. 4.30, 438
(here an attorney refused to produce his client's
title-deed; held that the possibility that the
clieut if called might have waived the privilege
was not sufficient to prevent the offering of sec-
ondary evidence ; here the client had given
orders not to exhibit the deed ; " an attorney
may hold a deed for a great many persons," and
it would be unreasonable to require their call-
ing) ; 1861, R. V. Leatham, 3 E & E. 658, 668
(per Hill, J., " a well-established rule of law,"
that production of a privileged document is ex-
cused) ; 1806, Richards v. Stewart, 2 Day 328,
334, 336, 338 (whether the privileged person
nmst be subpoenaed ; decision not given, but
arguments set out) ; 1807, Lynde v. Judd, 3 id.
499 (production excused, if privileged person
refuses to produce) ; 1808. U. S. v. Porter, ib.
283, 285 (attendance must be compelled) ; 1897,
State I). Durham, 121 N. C. 546, 28 S. E. 26
(prdduction excused of document in hands of
wife claiming privilege).
2 1845, Blevins v. Pope, 7 Ala. 371, 375
(trover for a note, which the defendant had since
given to the maker, who by collusion failed to
produce it when requested ; production not re-
quired); 1817, Stockdale o. Escant, 4 Mart. La.
564, 567 (opponent's vendor retaining claimant's
bill of sale by collusion ; production not required,
though — Martin, J., diss. — no subpoena had
been issued) ; 1862, Grimes v. Kimball, 3 All.
518 (" If a party is deprived of the possession of
written instruments which belong to him, by the
fraudulent representations^ or devices of another
person, who unjustly detains or secretly disposes
of them so that they cannot be found or recov-
ered," they may be proved as if lost) ; 1823, Den
V. M'AUister, 7 TSS. J. L. 46, 48, 55 (a deed affects
ing the opponent's title was shown to be some-
where in the hands of adversaries, not parties ;
and this was held sufficient) ; 1815, Gray i\ Pent-
land, 2 S. & R. 23, 31 (" where it has been in the
hands of a third person, who, in collusion with
the adverse party or with ,a view of screening
him, has put it out of the way," secondary proof
is admissible).
1439
3 Enqland: 1795, R. v. Castleton, 6 T. R. 236
(where the third person had merely been asked
when out of court and had replied that she could
not find it); 1834, Whitford v. Tutin, 10 Bing.
395 (subpoena necessary) ; United States : 1835,
Carlton v. Litton, 4 Blackf. 1 (subpoena neces-
sary) ; 1839, Kucker v. M'Neely, 5 id. 123 (same) ;
1850, Beall v. Barclay, 10 B Monr. 261, 262
(mere possession by a person amenable to pro-
cess, not sufficient); 1853, Dickerson v. Talbot,
14 id. 60, 63 (possession by a third person, with
notice to produce, insufficient) ; 1827, Gardere v.
Fisk, 6 Mart: n. s. 387, 390 (receipt given by
offeror to opponent's predecessor ; subpoena re-
quired) ; 1827, Erwin v. Porter, ib. 166, 167
(similar; subpoena required) ; 1845, Chaplain v.
Briscoe, 5 Sm. & M. 198, 207 (mere possession
by a third person insufficient, since the person
may be compelled bysubpoena to produce) ; 1806,
U. S. V. Long, 1 Cr. C. C. 373, semble (third per-
son must be summoned) ; 1822, U. S. v. Lynn,
2 id. 309 (same) ; 1872, Dickinson v. Clarke, 5
W. Va 280, 282 (document in hands of one giv-
ing deposition but refusing to file the document ;
copy excluded).
* 1832, U. S. V. Reyburn, 6 Pet. 352, 365
(privateer's commission belonging to C. ; ina-
bility to find C, sufficient on the facts; subpoena
not necessary).
" 1793, Smith v. Holebrook, 2 Root 45 (coun-
terfeit note taken and kept from plaintiff by
revenue-officer; insufficient); Ga. Code 1895,
§ 5257 (where subpoena d. t. is employed, and
party " is unable thereby to procure " the docu-
ment, other evidence is allowable) ; 1879, Bos-
worth V. Clark, 62 Ga. 286, 288 (service of
subpoena, sufficient in trial Court's discretion) ;
1859, Greenongh v. Shelden, 9 la. 503, 506 (wit-
ness subpoenaed and present with the document,
but no demand made ; evidence of contents ex-
cluded) ; 1875, Hawkins c. Rice, 40 id. 435 (as-
signment left by offeror with another clerk of
Court, held not without offeror's control) ; 1899,
Ruthven v. Clarke, 109 id. 25, 79 N. W. 454
(documents testified to in deposition of inter-
vener's agent ; originals required to be accounted
§ 1212 DOCUMENT AEY ORIGIXALS. [Chap. XXXIX
that, while for the purposes of a general rule, it is better to require the pro-
cess of subpoena, yet in the discretion of the trial Court the failure to use a
subpoena, provided a demand has been made, may not be treated as fatal, if in
view of the nature of the document, the residence of the possessor and his
relations to the case, the risk of collusion, and other circumstances, the ser-
vice of a subpoena would have been au unnecessary effort. If the document
is in court, a subpceua would of course be unnecessary.^ If after service of
subpoena the possessor is recalcitrant and refuses to obey, the proponent
should be excused from production.''
(4) Where the desired witness possessing the document is himself also a
party to the cause, on the side of the proponent, his possession is of course no
excuse for non-production.^
§ 1213. Same: (J) Person without the Jurisdiction. It has just been seen
that the amenability of the possessor to legal process should not invariably
and absolutely bar the proponent from proving the document's contents by
other evidence. Conversely, the mere fact of the non-amenability of the
possessor to legal process should not of itself excuse non-production. Legal
process cannot avail to obtain a document held out of the j urisdiction ; but
the object may nevertheless be attained by a request. Four possible forms
of effort exist, any one or more of which may be deemed proper by a Court
before excusing for non-production. If the precise whereabouts of the docu-
ment is unknown, search may be made ; if the possessor be ascertained, he
may be requested to appear with the document ; or he may be requested to
for) ; 182+, Eure v. Pittman, 3 Hawks 364, 370 not bound to produce it. . . [The third person
(a will traced to T.'s hands ; held, that T. should refuses,] it is true, at his own peril ; but you
have been subpoenaed dwes tecum or inquiries have no remedy except against him ") ; 1853* R.
should have been made of her, before the infer- v. Llanfaethly, 2 K. & B. 940 (Erie, J. : " The
ence of collusion or suppression could be drawn; law does not admit the disobedience of a person
Henderson, J., diss); 1833, Clark k. Longworth, served with a subpoena dures tecum as a suffi-
Wright 89 (not clear); 1815, Tilghman, C J., cient excuse for not giving primary evidence of
in Gray a. Pentland, 2 S. & R. 23, 31 (" It wiU the contents of a docnineut, where the person
always be a question whether with proper exer- served is punishable for his disobedience");
lions he might not have had it in his power ") ; 1852. Farley v. Graham, 9 U. C. Q B. 438 (docu-
S. 0. St. 1870, C. C. P. 1902, c. 12, § 419 (if an ment in possession of the witness in court, but
"original pleading or paper" is "withheld by illegally refused to be produced; copy not
any person," the Court may authorize use of allowed ; " the party might have sought his
copy) ; 1851, Williams v. Ward, 23 Vt. 369, 376 remedy against the witness ").
(notification posted by selectmen ; not presumed The following statute seems not to be in-
to be in power of party questioning village offi- tended to lay down a rule contrary to that in
cer's acts) ; 1897, Newell v. Clapp, 97 Wis. 104, the text : Pa. St. 1846, Pam. L. 483, § 3, P. & L.
72 N. W. 367 (no measures taken to obtain the Dig Evid. 7 (after subpoena d. t. requiring
document; production not dispensed with). papers, and refusal to produce, followed by im-
The rule for loss {ante, § 1194) sometimes pri.sonmeut and discharge, parol evidence of
verges close upon the present rule. contents is admissible).
' 1847, Doe v. Clifford, 2 C. & K. 448, 451 » 1874, Gimbel r. Hufford, 46 Ind 125, 129
(the third person, being in court with the deed, (where the person so in possession was the plain-
declined to produce it, and a copy was admitted ; tiff himself, production was required); 1878,
otherwise, if the deed had not been there). JIcMakin r. Weston, 64 id. 270, 274 (partv an-
' This is implied in the rulings cited supro, nexing a copy to his deposition; excluded);
note 3. 1877, Waterville ;■. Hnghan, 18 Kans. 473 (docu-
The following rulings are therefore absurd, ment in another county in the hands of one of
and would hardly be followed to-day: 1835, the plaintiffs or his attorney; production re-
Alderson, B., in Jesus College v. Gibbs, 1 Y. & quired). Compare the case "of the opponent's
C. 145, 156 ("You could not have proved it by possession out of the jurisdiction {post, § 1213,
secondary evidence unless the document had note),
been in the possession of a party [i. e. person]
1440
§§ 1177-1282] DETENTION BY THIRD PEESON.
§ 1213
deliver the document for use at the trial ; or his deposition may be taken
with a copy furnished by him annexed to it. No one or more of these efforts
could be required as a fixed rule, nor do the Courts seem to make any such
fixed requirement. The rulings fall into three general groups. In the first
group, the Courts require that an effort of some sort be made, its nature
depending more or less on the circumstances of the case.' In the second
group, the Courts, either by express decision or by failing to mention any
requirement, excuse the non-production although no such effort has been
made, the mere fact sufficing that the document is out of the jurisdiction.^
1 England: 1855, Boyle u. 'Wiseman, 10 Exch.
647 (a docnment was in the hands of a person
in France ; the plaintiff's agent, in a libel-suit
in which it was suggested that this document
contained an admission of authorship, went to
the holder and asked him for the letter, in order
to bring it to England, not stating the purpose
nor asking the holder whether he would bring
it personally ; the holder refused ; held, that its
non-availability was not shown) ; Canada : 1894,
Porter v. Hale, N. Br., 23 Can. Sup. 265, 270
(document in possession of C. in Scotland ; in-
quiries addressed to C. and to other persons,
held insufficient on the facts) ; United States :
1876, Londoner v. Stewart, 3 Colo. 47, 50 (there
must be some effort to obtain the original;
good opinion by Hallett, C. J.); 1812, Towns-
end V. Atwater, 5 Day 298, 306 (mere absence
from the jurisdiction, insufficient ; " the Court
must be satisfied that the paper cannot be pro-
duced ") ; 1895, Waite v. High, 96 la. 742, 65
N. W. 397 (the Court intimated that it must
also appear impossible to secure the document) ;
1872, Shaw v. Mason, 10 Kans. 184, 189 (con-
tract in third person's hands in Missouri ; pro-
duction necessary, if nothing further is shown
by way of excuse) ; 1829, Lewis v, Beatty, 8
Mart. N. s. 287, 289 (deed in neighboring State ;
no attempt made to procure it; secondary evi-
dence excluded) ; 1891, Phillips o. U. S. Benef.
Soc'y, 120 Mich. 142, 79 N. W. 1 (document in
Canada ; attempt to take deposition required) ;
1868, Wood V. CuUen, 13 Minn. 394, 396 (mere
possession by certain opponents out of the State,
held not to " excuse from diligent effort to pro-
cure it ") ; 1838, Haile v. Palmer, 5 Mo. 403, 417
(sworn copy of marriage register and certificate
in Louisiana, excluded because it did not appear
that the law of Louisiana made them official
records ; apparently unsound) ; 1 862, Farrell v.
Brennan, 32 id. 328, 333 (letters addressed by F.
to his father in Ireland ; evidence of search or
the like required) ; 1842, Deaver v. Rice, 2 Ired.
280 (a constable had moved to another State,
leaving some of his papers with an agent, and
the document desired was not among these;
held insufficient for offering oral evidence of
the contents) ; 1886, Justice v. Luther, 94 N. C.
793, 798 (the mere residence of the depositary
in another State is not sufficient) ; S. C. St. 1870,
C. C. P. 1902, c. 12, § 419 (quoted ante, § 1212) ;
1853, Turner u. Yates, 16 How. 14, 26" (invoice
in hands of London consignees ; depositions " or
some proper attempt made to obtain it," re-
quired) ; 1857, Comstock v. Carnley, 4 Blatchf.
58 (contract in third person's custody, in another
State; copy not allowed, because the person
could have been examined) ; 1865, Blackburn v.
Crawfords, 3 Wall. 175, 183, 191, semble (private
nfarriage-register in France ; testimony about it
excluded, where no effort was shown to obtain
it or to take a copy) ; 1866, Dwyer v. Dunbar,
5 id. 318 (letter described by a deponent as for-
warded to S. in Mexico, an agent of the oppo-
nent; original required to be accounted for);
1855, Diener v. Schley, 5 Wis. 483, 525 (letter
written to a person in Germany ; loss must fur-
ther be shown). The following ruling is unique,
and of course unsound: 1838, Steinkeller v.
Newton, 9 C. & P. 313 (in a foreign deposition,
the witness alluded to the contents of a letter ;
held, that the inability to compel the witness to
produce the letter did not suffice to admit his
reference to it).
2 £ng.: 1855, Bruce ;•. Nicolopulo, 11 Exch.
129, 134 (a printed placard posted on a wall in
Turkey by the Russian commandant; copy
received) ; 1889, Burnaby v. Baillie, L. R. 42
Ch. D. 283, 291 (French official marriage-regis-
ter, not required to be produced) ; Can.: P. E. I,
St. 1889, § 57 (on commissions for examina-
tions taken out of the Province, the " books of
account or books of original entries " may be
proved by copies " given in evidence " or extracts
certified by the commissioner) ; Ala. : 1831,
Scott V. Rivers, 1 Stew. & P. 19, 22 (grantee in
possession of deed, residing out of the State ;
copy receivable) ; 1878, Snow v. Carr, 61 Ala.
363, 368 (policies cancelled and returned to
England ; production not required) ; 1879, Whil-
den V. Bank, 64 id. 1, 13, 30 (telegram in cus-
tody of person out of the State ; production not
required) ; 1880, Elliott v. Stocks, 67 id. 290,
300 (power of attorney in another State; pro-
duction not required) ; 1880, Ware v. Morgan,
ib. 461, 466 (bill of exchange in another
State; production not required); 1883, Gordon
V. Tweedy, 74 id. 232, 236 (books of a railroad
company in another State; production not re-
quired); 1883, Martin v. Brown, 75 id. 442, 447
(letters in a foreign country; production not
required) ; 1884, Pensacola B. (Jo. v. Schaffer,
76 id. 233, 237 (original of telegram in adjacent
State; production not required) ; 1892, Alabama
State L. Co. v. Kyle, 99 id. 474, 479, 13 So. 43
(certificate of entry out of State ; copy received) ;
Ark. : 1876, Bozemau v. Browning, 31 Ark. 364,
371 (bond filed in a Court of another State;
sufficient on the facts) ; 1902, Bitter v. State, 70
id. 472, 69 S. W. 262 (letters in possession of a
im
§ 1213
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
In the third group, the effort actually made is declared to be sufficient,
without laying down any rule as to its necessity.* The proper practice is to
third person, without the State ; prodaction not
required) ; Cal. : IS.'iB, Gordon v. Searing, 8
Cal. 49 (paper in hands of party out of the
State, sufficient) ; 1893, Zellerbach v. Allenberg,
99 id. 57, 73, 33 Pac. 786 (letters mailed to a
resident of Germany, presumed beyond the
State, and thus "lost," under C. C. P. § 1963,
subd. 24) ; C. C. P. § 1855, as amended in 1901
(copy allowable, if the original " is beyond the
jurisdiction"; for the validity of these amend-
ments, see ante, §488); Conn.: 1853, Shepard
V. Giddings. 22 Conn. 282 Xmere fact of posses-
sion out of the jurisdiction, sufficient) ; Ga. :
1858, Goodwyn v. Goodwyu, 25 Ga. 203, 207
(execution on file out of the State ; production
not required) ; 1858, Lunday u. Thomas, 26 id.
537, 544 (in possession of a third person without
the State; not required) ; 1869, White v. Clem-
ents, 39 id. 232, 242 (paper beyond the jurisdic-
tion and not in the power of proponent ; not
required) ; 1871, Frank v. Longstreet, 44 id. 178,
187 (notice served without the jurisdiction;
ruling obscure) ; 1875, Brown !'. Oattis, 55 id.
416, 419 (deed in another State ; proponent not
required to try and get it) ; 1880, Schaefer v. K.
Co., 66 id. 39, 45 (freight list, original out of the
State; copy admitted); 1888, Ualhouu v. Cal-
houn, 81 id. 91, 93, 6 S. E. 913 (deed beyond
the jurisdiction, provable by copy) ; 1895, Bow-
den V. Achor, 95 id. 243, 22 S. E. 271 (document
in another State ; copy allowable) ; 1 897, Miller
V. McKinnon, 103 id. 553, 29 S. E. 467 (posses-
sion of third person bej'ond jurisdiction ; pro-
duction not required) ; III : 1855, Mitchell v.
Jacobs, 17 111. 235 (lease sent to California with
a deposition ; production not required) ; Ind. :
1866, Thorn v. Wilson, 25 Ind. 370, 372 (paper
owned by a witness living abroad ; copy attached
to deposition, sufficient) ; 1881, Hall v. Bishop,
78 id. 370, 371 ("under the control of a witness
not within the jurisdiction " ; copy allowed) ;
Ky. : 1838, Lemon v. Johnson, 6 Dana 399 (re-
moval from the State by the possessor, and his
death abroad ; sufficient on the facts) ; 1847,
Waller v. Cralle, 8 B. Monr. 1 1 , 14 (release in
the hands of a non-resident; sufficient) ; Mich. :
1888, Woods V. Burke, 67 Mich. 674, 676, 35
N. W. 798 (out of the jurisdiction, sufficient) ;
1890, Knickerbocker v. Wilcox, 83 id. 201, 47
N. W. 123 (bond out of the State ; production not
required) ; Minn. : 1897, Kleeberg v. Schrader,
69 Minn. 136, 72 N. W. 59 (contract in Ger-
many; production not required); Mo.: 1845,
St. Louis P. Ins. Co. v. Cohen, 9 JIo. 416, 439
(agreement in Wisconsin ; production not re-
quired) ; 1848, Robards v. McLean, 8 Ired. 522,
524 (the plaintiff's slave had a document which
the defendant wished to prove ; that the slave
had escaped to another State was held sufficient,
nor was the chance of finding it in his possession
sufficient to require an attempt to get it) ; ^Y. H. :
1836, Burnham u. Wood, 8 N. H. 334, 337 (cor-
poration books in another jurisdiction ; produc-
tion excused) ; ^V. J. : 1 903, Hirsch v. Leatherbee
L. Co., — N. J. L. — , 55 Atl. 645 (letter sent
to a non-resident now deceased ; copy admitted) ;
1442
N. Y.: C. C. P. 1877, § 930 (foreign corpora-
tion's books may he proved by copy on ten days'
notice of such intention ; except by a corpora-
tion proving its own acts) ; Oh. : 1846, Ueed v.
State, 15 Uh. 217, 223 (a counterfeit bank-note
out of the jurisdiction ; production not re-
quired) ; Pa. : St. 1837, Pnb. L. 110, p. 20, P. &
L. Dig. Evid. 45 (certified copy of extract from
certain foreign burial registers, receivable) ;
1886, Otto V. Trump, 115 Pa. 425, 429, 8 Atl.
786 (records in another State, not required to
be produced) ; R. I. : Gen. L. 1896, c 210, § 16
(will impounded in a court out of the State and
not there probated, provable by certified copy) ;
S. D.: 1896, Hagamau u. Gillis, 9 S. D. 61, 68
N. W. 192 (document out of the jurisdiction;
provable without notice to holder to produce) ;
Tex.: 1854, Clifton v. Lilley, 12 Tex. 130, 136
(the last custodian resided in another State;
" it was not necessary to call on him by suhpcena
d. t. or otherwise") ; 1888, Veck v. Holt, 71 id.
715, 717, 9 S. W. 743 (vendee out of the juris-
diction ; proof of inaccessibility of bill of sale,
or of demand, unnecessary) ; 1890, Frost ». Wolf,
77 id. 455, 459, 14 S. W. 440 (deed in a notary's
office in Louisiana; production excused) ; 1902,
Missouri K. & T. R. Co. v. Dilworth, 95 id. 327,
67 S. W. 88 (contents of a way-bill in Kansas,
held provable by deposition, where it ap]ieared
that an effort to obtain the original would have
been unavailing) ; U. S. : 1873, Burton r. Driggs,
20 Wall. 125, 134 (copy of a lost deposition of a
witness beyond process, receivable, and a new
taking of the deposition not necessary; docu-
ments in the possession of one "living in
another State," provable, " without further
showing," by secondary evidence) ; T7 ; 1856,
Hayward R. Co. o. Duncklee, 30 Vt. 29, 39
(letter to third persons, one deceased, the other
out of the State ; production not required) ;
1900, Blaisdell v. Davis, 72 id. 295, 48 Atl. 14,
semble (original out of the jurisdiction ; copy
sufficient); Va.: 1806, Fitzhugh ». Love, 6 Call
5, 10 (a Liverpool notary's copy of an inacces-
sible protest by a London notary, excluded ;
semble, the lyondon notary's copy admissible).
3 1884, McDonald v. Murray, 5 Ont. 559, 570,
575 (document refused to be given up by a
foreign official; production excused, without
showing that by the foreign law it was irremov-
able) ; 1838, Mordecai v. Bell, 8 Port. 529, 535
(possession by one out of the State, and demand
for it, sufficient on the facts) ; 1839, Swift r.
Fitzhugh, 9 id. 39, 53 (same ; deposition of
holder need not be taken) ; 1844, BeaU v. Dear-
ing, 7 Ala. 124, 126 (demand of non-resident,
sufficient ; taking deposition, here equivalent to
a demand); 1849, Doe v. Biggers, 6 Ga. 188,
196 (not decided); 1880, Fisher v. Greene, 95
111. 94, 99 (power of attorney held in Xew York
and refused to be given up by holder ; copy
allowed) ; 1895, BuUis v. Easton, 96 la. 513, 65
N. AV. 395 (sufficient where the possessor re-
fused to give up the original, but this is not
stated to be essential); 1898. Combs v. Breat-
hitt Co., — Ky. — , 46 S. W. 505 (in another
§§ 1177-1282] DETENTION BY THIRD PERSON.
§ 1214
leave the matter entirely in the hands of the trial Court ; except that no
effort need ever be required to obtain a foreign public or official document
irremovable by the foreign law (post, § 1218). Whether, when the document
is a public one in another jurisdiction, the proof of its contents should be by
certified copy, involves a different principle (post, § 1273).
§ 1214. (4) Physical Impossibility of Removal. Production should not
be required where the written characters exist on something so firmly fixed
to the realty that its removal for production would be impracticable under
the circumstances :
1842, Parke, B., in Jones v. Tarlton, 1 Dowl. Pr. n. 8. 625, 626: "The exceptions
■ . . [cover things] not easily removed, as in the case of things fixed in the ground or to
the freehold ; for the law does not expect a man to break np his freehold for the purpose
of bringing a notice into court."
Something should no doubt depend upon whether the realty is in the pos-
session of the proponent or of a third person ; for in the latter case a slight
degree of injury or disturbance would suffice to render removal impracticable.
The trial Court's determination should suffice in each instance.^
county, beyond process, and after " due efEort to
obtain"; production not required) ; 1855, Mont-
gomery V. Routh, 10 La. An. 316 (mites refused
to be given up by holder out of the State ;
copies admitted); 1871, Binney v. Russell, 109
Mass 55 (deponent out of the Commonwealth
refused to annex a document, but annexed a
copy ; copy admitted) ; 1893, Thomson-Houston
E. Co. V. Palmer, 52 Minn. 174, 181, 53 N. W.
1137 (document held by deponent in Kansas,
and refused to be giyen up ; production ex-
cused) ; 1854, Brown v. Wood, 19 Mo. 475
(document in Wisconsin, notice to produce
having been given; production excused) ; 1842,
Ralph V. Brown, 3 W. & S. 395, 399 (deposition
in the hands of one in another State who re-
fused to give it up ; production not required) ;
1875, American Life Ins. Co. v. Rosenagle, 77
Pa. 507, 513 (letters refused to be given up;
question left undecided ; here the bolder was
out of the jurisdiction); 1811, Bunch !'. Hurst,
3 DeS. 273, 290 (deed placed in the hands of a
third person who had left the State and refused
to give it up ; the offeror himself having given
it to the third person, tlie case was treated as
one of suppression, and production required) ;
1899, Sayles v. Bradley & M. Co., 92 Tex. 406,
49 S. W. 209 (refusal of witness in another
county, beyond the reach of subpoena, to attach
paper to deposition; production not required);
1861, Bonner v. Ins. Co., 13 Wis. 677, 687 (rail-
road shipping book out of jurisdiction; second-
ary proof allowed; whether railroad's refusal to
furnish must be shown, undecided) ; 1879, Wis-
consin River L. Co. v. Walker, 48 id. 614, 4
N. W. 803 (stock-hook in Illinois, which possessor
refused to deliver; secondary proof allowed).
The circumstance that the possessor of the
document is the opponent, and that therefore it
might be obtained from abroad by legal process
in the snit, is immaterial ; the case falls rather
under the rule of § 1199, ante: 1900, Phillips v.
V. S. Benevolent Soc'y, 125 Mich. 186, 84 N. W.
57 (insurance application filed at defendant's
home office in Canada, provable by copy).
Contra: 1903, Central El. Co v. Sprap:ue El.
Co., 57 C. C. A. 197, 120 Fed. 925 (minutes of
the opponent corporation, in another State;
the original or a certified copy required to be
produced).
For the question whether the original must be
sent to a deponent out of the jurisdiction, depos-
ing to handwriting, see ante, § 1185.
1 Eng.: 1809, Cobden v. Bolton, 2 Camp. 108
(notice on a board inlaid in the wall of a coach-
ofBce; proved by an examined copy) ; 1833, R.
V. Fursey, 6 C. & P. 81, 84 (notice affixed to a
wall; copy admitted); 1834, Doe v. Cole, ib.
359 (tablet in a church; production not re-
quired) ; 1839, Bartholomew v. Stephens, 8 id.
728 (a notice painted on a board on a pole in
a field; copy admitted); 1840, Mortimer v.
M'Callan, 6 M. & W. 68, 63, 68 (handwriting
on a wall; production not required); 1842, R.
V. Edge, Wills, Circ. Evid., 5th Am. ed., 212,
Maule, B. (an inscription on a coffin-plate;
" being removable, it ought to have been pro-
duced ") ; 1842, Jones v. Tarlton, 9 M. & W. 65,
1 Dowl. Pr. N. 8. 625 (a notice in a carrier's
oflice, painted on a board fastened by a string
to a nail ; production required); 1848, Sayer v.
Glossop, 2 Kxch. 409, 411 (per Pollock, C. B., a
writing pasted on a wall; per Rolfe, B,, words
chalked on a wall; used as examples of non-
availability) ; 1 888, Parnell Commission's Pro-
ceedings, 12th day. Times' Rep. pt. 3, p. 159
(testimony being offered as to a notice posted
up forbidding the payment of rent, it was ruled
that " It is not necessary to produce the actual
notices that were posted up"); U. S. : 1896,
Harper v. State, 109 Ala. 28, 19 So. 857 (notices
posted against trespassing; production not re-
quired); Ga. Code 1895, §5170 (inscriptions on
'' walls, monuments, and other fixed objects,"
1443
§ 1215 DOCUMENTAET ORIGINALS. [Chap. XXXIX
§ 1215. (5) Irremovable Judicial Records ; General Principle (Records,
Pleadings, Depositions, 'Wills, etc. ; Statutory Rules). The record of a court
should not be taken away from its place of custody into another court.
This irremovability is often expressly enacted by statute ; but, whether it is
so enacted or not, the principle has always been sanctioned by the courts on
grounds of policy. The removal into another court as evidence would make
it impossible for the time being for others to use the records ; there would be
a serious risk, of loss ; and there would be a constant additional wear and
tear upon the document. Tor the record of a court without the jurisdiction
there is the added consideration that there is no legal means of obtaining
the document. For these reasons it is well settled that the record of another
court may be proved without production :
Ante 1726, Chief Baron Gilbert, Evidence, 7: "Records, being the precedents of the
demonstrations of justice, to which every man has a common right to have recourse,
cannot be transferred from place to place to serve a private purpose ; and therefore they
have a common repository, from whence they ought not to be removed but by the au-
thority of some other court ; and this is in the treasury of Westminster. And this piece
of law is plainly agreeable to all manner of reason and justice; for if one man might
demand a record to serve his own occasions, by the same reason any other person might
demand it ; but both could not possibly possess it at the same time in different places,
and therefore it must be kept in one certain place in common for them both. Besides,
these records, by being daily removed, would be in great danger of being lost. And
consequently it is on all hands convenient that these monuments of justice should be
fixed in a certain place, and that they should not be transferred from thence but by
public authority from superior justice. The copies of records must be allowed in evi-
dence, for . . . the rule of evidence commands no farther than to produce the best that
the nature of the thing is capable of ; for to tie men up to the original that is fixed to a
place, and cannot be had, is to totally discard their evidence, . . . for then the rules of
law and right would be the authors of injury, which is the highest absurdity."
1811, Nott, J., in Tobin v. Seay, 2 Brev. 470 (receiving an office copy of an execution) :
"An exemplification is all that a party can obtain. It is the best evidence the nature of
the case admits of ; because the Courts would not compel the clerks of courts to attend
with the originals upon a subpcena duces tecum."
1868, Joynes, J., in Bullard v. Thomas, 19 Gratt. 14, 18 : " The usual mode of proving
the record of another court is by the production of a certified copy. But the copy is not
produced in such cases because it is better evidence than the original ; it is received only
on the ground of convenience, as a substitute for the original record. The reception of
a copy avoids the inconvenience of removing the original record from place to place." ^
(a) It follows that a writ, pleading, or the like, which appertains to the
trial at bar in the same court and will become a part of the record in the
suit, must be produced or accounted for like any other document.^ Con-
provable by copy); 1859, Steams v. Doe, 12 held inadmissible; the commission required);
Gray 482, 486 (name and port painted on the 1880, Baucum v. George, 65 Ala. 259, 266
stern of a vessel, described by a witness ; present (execution, etc. ; loss required to be shown) ;
point not raised). 1854, Ernest v. Napier, 15 Ga. 306, 308 (execution
^ Compare the analogous reasons for excus- in the Court below ; production held necessary,
ing the non-production of ofBcial documents in being obtainable by application to that Court
general, post, § 1218. or by mandamus in case of refusal) ; 1897, Bohy
2 i807_ Bayley v. Wylie, 6 Esp. 85 (a recital v. Title Co., 166 Dl. 336, 46 N. E. HID (only the
in a deposition of the commission authorizing it, record allowable to prove rules of court ; but it
1444
§§ 1177-1282]
JUDICIAL RECOKDS.
§ 1215
versely, a document which is part of the record in another court need not be
produced, even though it is in fact in the control of the opponent and thus
available.^
(6) The question will often arise whether a document is in legal theory a
part of the record or is merely an incidental document which can be with-
drawn from the other Court. An answer in Chancery, it was settled, need
not be produced, although in strictness the Chancery in England was the
central custodian of records for all Courts and although the Chancellor's
permission for temporary removal was by tradition obtainable.* But an
affidavit, it was thought, was not a part of the record and must be produced ;
though this would hardly be the ruling at the present day.^ A will of land
probated in the Ecclesiastical Court did not become a part of the record
there, because that Court had no jurisdiction to render judgment upon a will
of land {post, § 1238), and therefore the will must be produced at common
law like any other document ; " but statutes have everywhere changed this
by creating courts with jurisdiction equally over wills of all kinds and by
permitting the use of copies.'^ A deed offered in the other court for purposes
is singular that a Court cannot take notice of its
own rules) ; 1874, Currey v. State, 7 Baxt. 154,
155 (same as next case; here proof of loss was
waived); 1880, Epperson v. State, 5 Lea 291,
294 (copy of minutes of indictment, usable on
accounting for the original).
3 1853, Fouke V. Ray, 1 Wis. 104, 108 (even
where the opponent has the original in court) ;
1858, Dupont v. Downing, 6 la. 173, 176
(original not required, even where the opponent
was the custodian). Contra : 1854, Millard v.
Hall, 24 Ala. 209, 212, 223 (order of sale
issued by clerk of another court; production
required) ; 1855, Lunsford v. Smith, 12 Gratt.
554, 563 (execution in another court, not ac-
counted for; copy excluded).
The orthodox rule applied to records of infe- ^
rior courts: 1696, Holt, C. J., in R. v. Hains, '
Comb. 337 : " We know that it is not usual for
inferior courts to draw up their records, but only
short notes; and copies of these short notes,
being public things, are good evidence; other-
wise of private things, for copies of rent-rolls are
no evidence, but the original must be produced."
The docket of a justice of the peace is now pro-
vided for almost universally by statute (post,
note 11). Where a lost judicial record is restored
bi/ decree, the copy restored becomes the original,
and the loss of the former need not be shown
{post, § 1240).
* 1809, Salter v. Turner, 2 Camp. 87; 18)2,
Lady Dartmouth v. Roberts, 16" East 334, 340
(answer in Chancery in a suit between other
parties) ; 1813, Hodgkinson v. Willis, 3 Camp.
401 (answer in Chancery in another suit) ; 1817,
Hennell v. Lyon, 1 B. & Aid. 182; 1825, Ewer
V. Ambrose, 4 B. & C. 25 ; 1840, Abinger, C. B.,
in Mortimer v. M'Callan, 6 M. & W. 58, 68
(" formerly the actual production was required "
but the inconvenience of getting the Lord
Chancellor's consent on each occasion led to
a change); 1830, Winans v. Dunham, 5 Wend.
47 (original of a Chancery decree, etc., need not
1415
be produced) ; 1817, Gibson v. Cora., 2 Va. Cas.
HI, 120 (in a Superior Court, certified copy of
judgment of General Court suffices).
° 1726, Gilbert, Evidence, 56 (" the reason is,
because the answer is an allegation in a court of
judicature, . . . but a voluntary affidavit hath
no relation to any court of justice, and . . . the
affidavit itself must be produced as the best
evidence ") ; 1767, Buller, Nisi Prius, 239 ; 1825,
Graham, B., in Rees v. Bowen, 1 McCl. & Y.
383, 389 (" I think there i.s a marked difference
between an affidavit and an answer or anything
else which is properly called a record, in the
instance of which an attested copy is perfectly
sufficient. . . . Answers, or other records, where
they are regular, are never permitted to be re-
moved from the files; but nothing is more
usual than for a judge, where a party has
occasion to make use of an afiidavit, to direct
it to be taken off the file for the purpose").
Contra; 1827, Highfield v. Peake, 1 M. & M.
109, Littledale, J. ; 1847, Garvin v. Carroll, 10
Ir. L. R. 323, 330 (" It is a record of the Court,"
and need not be produced, except on a charge
of perjury).
Depositions are usually provided for by the
statutes governing them (post, §§ 1380-1383).
8 1685, Anon., Skin. 174 ("If they will not
after proof deliver back the original, then this
Court will intermeddle, and a proof of the will
cannot be by copy"); 1697, Hoe w. Nathorp, 1
Ld. Raym. 154 (probated will of realty; copy
excluded).
' These statutes have been placed, to avoid
repetition, under § 1681, post; they allow the
use of a copy of the judgment of probate (under
whatever name it goes) ; though in a few States
they allow production of the original will to be
required, e. g. on a suggestion of fraud. The
following rulings were made under such statutes :
1893, Newsom v. Holesapple, 101 Ala. 682, 691
(original not required ; applying the statute) ;
1890, Pnrdy v. Hall, 134 Ul. 298, 25 N. E. 645
§ 1215
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
of proof was regarded as a part of the record, temporarily at least ;^ the
question depends largely on the nature of the other proceeding and of the
document.^ Statutes often provide for the proof by copy of sundry Jocu-
ments required to he filed among court records.^"
(e) In most jurisdictions statutes have expressly provided that the rec-
ords of courts in general need not be produced. So far as these statutes
brought within the rule certain judicial proceedings (such as those of jus-
tices of the peace), they may have served to make more certain or to am-
plify its operation. But for the most part these statutes merely declare, as
to the present subject, that which was before never questioned ; and their
principal purpose was usually to amplify the rule (post, § 1681), concerning
the exception to the Hearsay rule for certified copies by official custodians
of documents.^^
§ 1216. Same: Exception for Nvil Tiel Record and Perjury, (a) Where
the plea of nul tiel record was interposed, it seems to have been originally
the practice to require production even from another court; the production
being obtained through Chancery by certiorari} But afterwards it came to
(original must be accounted for) ; 1894, Nice-
wander V. Nicewander, 151 id. 156, 161, 37 N. E.
698 (same) ; 1824, Franklin v. Creyon, Harp.
Eq. 243, 249 (certified copy of probated will,
received, the Court records being hnrnt) ; 1 856,
Wardlaw v. Hammond, 9 Rich. 454 (the notice
required by statute must be in writing); 1859,
Gourdin v. Staggers, 12 id. 307 (statutory notice
held insufficient in tenor) ; 1 860, Sally v. Gunter,
13 id. 72, 75 (certified copy of domestic probated
will, established on a copy of will probated in
another State, received) ; 1848, Weatherhead v.
Sewell, 9 Humph. 272, 283 (will required to be
produced, on suggestion of fraud, etc.) ; 1886,
Hickman v. Gilluin, 66 Tex. 314, 315, 1 S. W.
339 (original not required); 1889, Rio Grande
& E. P. R. Co. V. Bank, 72 id. 467, 10 S. W. 563
(same) ; 1826, Dickinson v M'Craw, 4 Rand.
i58, 160 (statute applied; copy sufficient).
8 Ante 1767, BuUer, Nisi Prius, 253 (where a
deed being pleaded '' is tied up to one court, and
is impossible to be removed, it shall he pleaded
in another without shewing") ; 1593, Wymark's
Case, 5 Co. Rep. 75 (" If a deed be denied in
one court, by which it remains there, this deed
Jnay be pleaded in another court without shew-
ing it ; for lex non cogit ad impossibilia ").
9 1817, Handley v. Fitzhugh, 1 A. K. Marsh.
24 (document unavailable because lodged in a
court of law in another suit; whole record of
that suit required to be read, to show the reason
for non-production) ; 1849, Davidson i-. David-
son, 10 B. Monr. 115 (award filed in another
court of the State; original required); 1811,
Miles V. O'Hara, 4 Binn. 108, 111 (judge's notes
are not a record, and must be produced) ; 1802,
Fant V. McDaniel, 1 Brev. 173 (malicious prose-
cution; original indictment need not be pro-
duced) ; 1836, Mattocks v. Bellamy, 8 Vt. 463,
467 (habeas corpus writ, in files of court, prov-
able by copy).
The question is properly one of the nature of
a record, not of any principle of evidence, and
the above cases are merely a few illastiations of
the range of the controversy.
^^ The following statutes include only those
in which the document is treated as not a part
of the record and is required to be prodnceil or
accounted for ; many other statutes, providing
for proof by copy without producing the original,
are collected, to avoid repetition, post, § 1681:
Conn. Gen. St. 1887, § 450 (bond filed in Probate
Conrt; if lost, a certified copy is admissiiile) ;
Miss. Annot. Code 1892, § 1794 (in action on
a writing filed in a suit brought thereon in
another court, a certified copy is admissible ; but
if execution is denied by plea, the clerk having
custody must attend with the original) ; N. H.
Pub. St. 1891, c. 226, § 9 (copy of recorded
deposition in perpetuam, usable if the original
is " lost or out of the possession and control " of
the party) ; N. C. Code 1883, § 1342 (writings
"recorded or filed a.s records in any court,"
provable by keeper's certified copy under seal,
unless the Court orders production of the
original); Okl. Stats. 1893, § 1587 (certified
copy by clerk of district court of indictment,
information, or bond filed, admissible when
original is "lost, destroyed, or stolen, or for
anv other reason cannot be produced at the
trial") ; R. I. Gen. L. 1896, c. 220, § 19 (bond
filed in Probate Court, provable by certified
copy if lost) ; Tex. Rev. Civ. Stats. 1895, § 2314
(in a suit on an instrument filed in another
domestic court, a certified copy is admissible;
but on affidavit denying execution, the clerk
shall attend on subpoena with the original).
^^ To avoid repetition the statutes are collected
post, § 1681.
1 1726, Gilbert, Evidence, 26 ("It is regularly
true that when the record is pleaded and apjiears
in the allegations, it must be tried on the i.'^sue
nul tiel record ; but where the issue is upon fact,
the record may be given in evidence [by copy]
to support that fact. When the issue is" nul tiel
record, the record must be brought, sii6 pede
1446
§§ 1177-1282] JUDICIAL RECORDS. § 1217
be settled that production of the record was here unnecessary, and was
required only where the record in issue existed in the same court or in an
inferior court.^ The practice in this country seems to be to require produc-
tion of a record in the same court,^ but not usually of a record in an inferior
court* and of course not of a record in a foreign court.^
(h) On a' charge of perjury in an answer in Chancery, it was customary to
require the production of the answer;^ but this was rather because the
jurat of the Master or other official did not in itself suffice to identify the
accused as the signer, and the principle involved was in truth that of
Authentication (post, § 2158).
§ 1217. Same : Discriminations (Dockets, Certified Copies, etc.). (1) The
question will of course arise whether the docket-hook, clerk's minutes, and
such documents, may constitute the record instead of the original papers or
the judgment-roll ; this involves the nature of a judicial record, which is
not a question of the law of evidence, but involves the " parol evidence "
rule (post, § 2450). (2) A sheriff's deed of sale usually recites the judg-
ment and execution upon which it is founded ; whether those papers should
be produced is a question involving in part the present principle, but
involving also and chiefly, the admissibility under the Hearsay rule of the
sheriff's official recitals (post, § 1664). (3) That the original record, if in
fact available and in Court, may be used, is clear (ante, § 1186). (4) In
using copies to prove the record, an exception to the Hearsay rule allows
the use of copies certified out of Court by the legal custodian ; the detailed
rules of this exception are elsewhere dealt with (post, § 1681). (5) There
are certain preferences accorded to particular kinds of copies ; these involve
another principle (post, §§ 1269-1273). ^
sigBli; but where the record is offered to a jury record; certified copies used ; variance appear-
[as evidence], any of the forementioned copies ing, the original was required) ; 1825, Vail v.
are evidence"; Editor's Note: "So that the Smith, 4 Cow. 71 (record of an inferior domestic
difference of the two cases is this : In the former Court may be proved by exemplification, and
the issue goes to the Court; for nul tiel record need not be brought by certiorari); 1808, Ladd
is an issue in which the record itself is the only v. Blunt, 4 Mass. 402 (Parsons, C. J. : " We
proof; . . . but where the issue is on the fact, never direct the record of the Court of Common
aud the record is only inducement, ... a copy Pleas to be sent us on the trial of nul tiel record,
may be given in evidence "). but receive copies of their records attested by
'^ 1742, Woodcraft v. Kinaston, 2 Atk. 317 the clerk ") ; 1851, Dyer v. Lowell, 33 Me. 260,
(Lord Hardwicke, L. C. : "There is a great 262 (on certiorari for quashing an order of par-
difference between the record itself and the tition ; copy sufficient) ; 1852, Willard v. Harvey,
tenor; for this is only a transcript or copy; 24 N. H. 344, 350 (certified copy snfScient).
indeed it must be literal, but still it is only a " 1820, Baldwin v. Hale, 17 John. 272 (foreign
transcript." " If nul tiel record be pleaded, the record, provable by examined copy ; here of an
Court cannot have the record but by certiorari, U. S. Circuit Court) ; 1813, Mills v. Duryee, 7
and then the tenor [i. e. a copy], if returned, is Cr. 481, 484 (record in another State; exempli-
sufficient as evidence of the record, and will fied copy sufficient) ; 1818, Hampton v. M'Con-
countervail the plea of nul tiel record; but when nel, 9 id. 234 (same).
the record is to be proceeded upon [in a superior ^ 1812, Lady Dartmouth v. Roberts, 16 East
court], the record Itself must be returned"). 334; 182.5, Ewer ;;. Ambrose, 4 B. & C. 25 ;
3 1847, Alexander u. Foreman, 7 Ark. 252 1847, Garvin v. Carroll, 10 Ir. L. R. 323, 330.
(production required) ; 1850, Adams v. State, ^ Whether, when a lost judicial record has
11 Ark. 466, 473 (production required if in same heen re-established by a decree, the loss has to
court) ; 1796, Burk v. Tregg, 2 Wash. Va. 215 be shown otherwise than as recited in the de-
(same) ; 1805, Anderson c. Dudley, 5 Call 529 cree, is considered post, § 1660; for the conclu-
(same). siveness of the re-established record, see post,
* 1783, AUin «. Hiscock, 1 Root 88 (justice's § 1347.
1447
§ 1218 DOCUMEKTAEY OKIGINALS. [Chap. XXXIX
§ 1218. (6) Irremovable Official Documents; GenercJ Principle. For rea-
sons similar to those applicable to judicial records, documents belonging in
any public office need not be produced, but may be otherwise proved. Their
removal for production in evidence would delay and hinder the official use
of the files, would make it impossible for other persons to consult the absent
documents, would subject them to risk of loss, and would injure them by
constant wear and tear. These reasons and the general principle have long
been established :
1774, Mansfield, L. C. J., in Jones v. Randall, Cowp. 17 : "A copy of [the Lords'
journals] may certainly be read in evidence ; for the inconvenience would be endless if
the journals of the House of Lords were to be carried all over the kingdom."
1817, Ellenborough, L. C. J., in HenneU v. Lyon, 1 B. & Aid. 182, 184 : « The admis-
sion of copies in evidence is founded upon a principle of great public convenience, in
order that documents of great moment should not be ambulatory, and subject to the
loss that would be incurred if they were removable. The same has been laid down in
respect of proceedings in courts, not of record, copies whereof are admitted, though not
strictly of a public nature " ; Abbott, J. : " It is a general principle that copies are
receivable in such cases without the originals, from the great inconvenience which would
result if the documents were taken to difEerent places. There would have been a
danger of loss from such a practice, and besides, the documents might be wanted at dif-
ferent places at the same time."
1840, Abinger, L. C. B., in Mortimer v. AVCallan, 6 M. & TV. 58, 69 : "When the law
is laid down that you cannot remove the document in which the writing is made, you
are entitled to the next best evidence."
1814, Pollock, C. B., in Doe v. Roberts, 13 M. & W. 520, 530 (a statute required title-
deeds, etc., to crown lands, to be deposited in a certain office) : " When directed to
be kept in any particular custody, and so deposited, they are provable by examined
copies, not on the ground of their being books of a public nature such as that all the
world may look at them, but on the ground of the great inconvenience of removing
them."
1853, Lipscomb, J., in Coons v. Renict, 11 Tex. 134, 137 (holding a contract for mili-
tary stores, filed with the quartermaster, to be a public document) : " If Major Babbitt
could be required to appear and produce the original in one of the courts, he would be
equally liable to attend with his original contract all over the State, to the great hazard
of a loss of the document, as well as to the great inconvenience of those interested in
the contract from its being removed from the office of the quartermaster-general. It is
impossible to foresee the extent of the inconvenience to the public service, if the rule
should be laid down that the quartermaster could be called from his service, where his
presence might be constantly necessary, to go with a document not his own but belong-
ing to the government." ^
It was once a phrase much used that a copy is admissible where the
original if produced would be evidence.^ This was intended to be said of
official documents ; but it was not said as affording a test for the present
purpose, nor could it do so ; it was said with reference to the Hearsay excep-
' In Sykes i>. Beck, — N. D. — , 96 N. W. ' ^.j..- 1696, Holt,C.J.,inR.». Hains.Comb.
844 (1903), the utterly nnfounded statement is 337 (" A copy of any original is evidence where-
made that " the right to make proof of official soever the original is evidence ") ; 1697, Hoe v.
records and documents primarily by copy does Northrop, 1 Ld. Raym. 1.54 ("Resolved per
nut exist independent of statute." Perhaps the Curiam that the immediate copy of an original
learned judge meaut to say " by certified copy " ; is good evidence where the original itself is
but even that is scarcely true (post, § 1677). evidence").
1448
§§ 1177-1282] OFFICIAL DOCUMENTS. § 1219
tion for Official Statements (^post, § 1630) ; and its meaning is that where
the original document was admissible by exception as an official statement,
there a copy of it would equally be admissible under the same exception to
the Hearsay rule. So far as it has in later times been construed to mean
that every official document admissible under the Hearsay exception may be
proved by copy, it has been misunderstood ; ^ for the principle of non-
production does not depend on admissibility (for example, a government
commission's report may not be admissible) but on its presence in official
custody and its irremovability.
The conceivable scope of the principle may include several sorts of docu-
ments. (1) Where by statute or regulation a document in official custody
is expressly or impliedly forbidden to be removed, it is clear that the prin-
ciple applies and production is dispensed with.* (2) Where the document is
one of the working-documents of the office, containing the official doings or
being a paper made and consulted there officially in the course of office-duty,
it is equally clear that it need not be produced. (3) Where the document is
one made by a private person and filed in a public office, the principle does
not apply if a statute or regulation does not expressly require it to be filed
and kept there ; if it does so require, then the principle applies; although the
rulings lay down no clear distinction on the subject, and most of the
instances are dealt with by a statute in general or specific terms. (4) Where
the document is one made by a private person and required by law to be
recorded in the public office but not to be kept there, the principle does not
at common law apply ; but in many instances a statute has provided for its
application. (5) Where the document is made by a public officer and is
delivered, after being recorded, to a private person (as, a government land-
certificate), the principle does not apply ; but by statute in many instances
it has either been made to apply or the record has been constituted the basis
of title, so that the record, as the original, being in official custody, need not
be produced.
§ 1219. Same: Specific Instances, at Common Law. No definite and com-
prehensive test in applying the principle seems to have obtained acceptance
at common law ; and the ruhngs are varied and not entirely consistent. It
may be noted that the practice as to producing legislative Journals seems
never to have been settled in England ; ^ though in this country production
is seldom required, and a statute often expressly thus provides.^ The other
' See, for example, the British statutes, post, received without objection); 1806 Lord Mel-
§ 1680. _ ville's Trial, 29 How. St. Tr. 685 (the printed
* For the question whether the original may journals rejected); 1840, Abinger C B in
be removed and produced, see ante, § 1186, post, Mortimer v. M'Callan, 6 M. & W. 58, 67 (cites
§§ 2182, 2367. , , ^ , , ,^ the preceding cases as not allowing copies, be-
1 1653, Faulconer s Trial, 5 How. St. Tr. 323, cause " any one wishing to remove them could
349 (journal produced) ; 1662, Sir Henry Vane's get the sanction of the Spealser to do so ")
Trial, 6 id. 1 1 9, 1 50 (book produced) ; 1 774, Jones For the conclusiveness of the certified enrolled
V. Randall, Cowp. 17 (Lord Mansfield, C. J. : statute, see post, § 1350 ; for Judicial notice of the
A copy [of the Lords' journals] may certainly journals, see post, § 2572; for printed conies see
be read in evidence ) ; 1781, R. v. Lord Gordon, post, § 1684. '
2 Dougl. 590, 593 (Commons' journals; copies " See these collected pos«, §§ 1680, 1684
1449
§ 1219
DOCUMENTAEY OEIGIIS^ALS.
[Chap. XXXIX
kinds of documents ruled upon have led to no special or enlightening con-
troversy.^
3 England: 1720, Brocas v. Mayor, 1 Stra.
307 (election record of the City of London;
copy allowed); 1721, R. v. Gwyn, ib. 401 (mu-
nicipal corporate records ; copy not allowed
because the letter in question was not a cor-
porate act); 1788, R. v. King, 2 T. R. 234
(assessment-books of the land-tax in Loudon ;
copy allowed) ; 1811, Eyre r. Palsgrave, 2 Camp.
605 (license-books of the Privy Council, licenses
recorded in the Secretary of State's office, prov-
able by copy) ; 1812, Walker v. Wingfield, 18
Ves. 443, 444 (marriage-register, provable by
copy, but intimatiug that the registers were so
often ill-kept that production should be re-
quired) ; 1813, Attorney-General v. Tomkins,
1 Dow 404 (to prove a clearance, in a prosecu-
tiou for clearing with an undue number of per-
sons on board, a copy was offered of the entry
signed by the master in the custom-house book
of clearances; the original entry held, semlle,
under the particular circumstances, provable by
a copy) ; 1834, Alivon v. Furnival, 1 Cr. M. &
R. 277, 291 (a French document deposited with
a notary, and by usage, though uot by law,
irremovable ; held " in effect out of the power of
the party") ; 1840, Abin^er, C. B , in Mortimer
V. M'Ca'llan, 6 M. & W. 53, 68 (custom-house
books provable by copy) ; 1848, Sayeru. Glossop,
2 Exch. 409 (public marriage-register ; produc-
tion not required) ; 1860, Reed v. Lamb, 6 Jur.
N. s. 828 (under statute ; register of voters held
to be of a " public nature ") ; 1873, R. v. Weaver,
L. R. 2 C. C. R. 85 (official register of births,
held provable by copy within the statute) ;
Canada: 1837, McLean v. McDouell, 1 U. C.
Q. B. 13 (memorial upon a land-claim filed in
the Governor-General's office ; copy allowed ) ;
1875, Burpee o. Carvill, 16 N. Br. 141 (public
documents in Liverpool in the custom-house
proved by examined copies); United States:
some of the following cases were doubtless
affected by statutes, and reference should be
made to the statutes collected post, § 1680:
Alabama: 1847, Doe v. Eslava, U Ala. 1028,
1037, 1041 (certain Spanish records, etc.; under
statute, production not required); 1869, Monts
o. Stephens, 43 id. 217, 222 (judge's certified
copy of constable's bond ; original not required,
semhle, if good as a statutory bond, but other-
wise if valid only as a common-law bond) ; 1881,
Donegan v. Wade, 70 id. 501, 506 (search re-
quired in Probate Office of written contestation-
grounds, before oral evidence of contents) ; 1889,
Stanley v. State, 88 id. 154, 156, 7 So. 273
(reports of fees by clerk of Court to Auditor,
provable by certified copies) ; 1892, Cofer i>.
Scroggins, 98 id. 342, 345, 13 So. 115 (claim of
exemption, filed in Probate Court; production
not required) ; 1893, Schwartz v. Biiird, 100 id.
154, 156, 13 So. 947 (husband's written consent
to wife's engaging in business, filed in Probate
Court ; production not required) ; 1 893, Willing-
ham V State, 104 id. 59, 16 So. 116 (certificate of
incorporation recorded with Secretary of State ;
certified copy of record receivable, whether the
certificate itself has been kept there or not) ;
1450
Arkansas: 1892, Dawson v. Barham, 55 Ark.
286, 290, 18 S. W. 48 (swamp-land-office entries
provable by certified copy); 1893, Woodruffs.
State, 61 Ark. 157, 171, 32 S. W. 102 (report of
State board, original being lost, proved by ex-
tracts in the Senate journal) ; California: 1855,
Norris v. Russell, 5 Cal. 250 (municipal ordi-
nance ; notice of tax sale ; production required) ;
1857, llensley v. Tarpey, 7 id. 288 (regulation
of public office forbidding removal of papers,
sufficient); 1857, Hensley v. Tarpey, ib. 288
(grant in Surveyor-General's office ; production
required) ; 1875, Vance v. Kohlberg, 50 id. 346,
349 (articles of consolidation filed by copy; cer-
tified copy sufficient without producing original) ;
1877, I'eople v. Hagar, 52 id. 171, 173, 186 (cer-
tified copy of petition for reclamation, to the
Board of Supervisors ; original not required ;
same, for the register's notice thereof to the
county-recorder) ; 1883, People v. Williams, 64
id. 87, 91 (certificate of U. S. census officer to
contents, received, without producing original
records); Connectirut: 1841, Price v. Lyon, 14
Conn. 279, 290 (certificate of membership lodged
with clerk of ecclesiastical society; production
not required); Illinois: 1884, Louisville N. A.
&C. R. Co. V. Shires, 108 111. 617, 623 (ordinance
of city in Indiana; production of original uot
required) ; Indiana: 1864, Wells v. State, 22
Ind. 241, 243 (books of county auditor ; originals
need not be produced) ; 1881, Waymire v. State,
80 id. 67, 69 (constable's bond ; original not
required) ; Iowa : 1871, Bellows v. Todd, 34 la.
18, 26 (letters on file in the land-office; copies
sufficient) ; 1878, Morrison v. Coad, 49 id. 571,
573 (contract uot required to be filed; statute
not applicable) ; 1889, Lyons v. Van Gorder, 77
id. 600, 601, 42 N. W. 500 (assessment of dam-
ages recorded with town-clerk ; original ac-
counted for) ; 1899, McPeek v. Tel. Co., 107 id.
356, 78 N. W. 63 (governor's proclamation of
reward; original not required) ; Kansas: 1895,
Bowersock v. Adams, 55 Kan. 681, 41 Pac. 971
(statements of personal property for taxation ;
production not required, under Code § 372,
unless proponent had control) ; Louisiana: 1845,
White V. Kearney, 9 Rob. 495, 499 (clearance
and manifest of vessel at custom-house, not an
official document) ; Maine: 1881, State v. Wig-
gin, 72 Me. 425 (internal revenue record-book
provable by certified copy) ; 1898, State v.
Howard, 91 id. 396, 40 Atl. 65 (records in
U. S. tax-collector's office, provable by copy);
Michigan : 1876, Pierce v. Rehfuss, 35 "51ich."53
(bill of sale lawfully filed with town-clerk, prov-
able by certified copy) ; 1895, People v. Clarke,
105 id. 169, 62 N. W. 1117 (election returns;
loss sliown) ; 1898, Deerfield "Pp. v. Harper, 115
id. 678, 74 N. W. 207 (return of highway-taxes
filed with supervisor; production required);
Mississippi: 1849, Routh v. Bank, 12 Sm. & M.
161, 185 (power of attorney authorized by Louis-
iana law to be kept on deposit by notary; cer-
tified copy admitted) ; 1855, James v. Kirk, 29
Miss. 206, 210 (same, bill of sale); Missouri:
1823, Chouteau v. Chevalier, 1 Mo. 343 (mar-
§§ 1177-1282]
OFFICIAL DOCUMENTS.
§ 1220
It may be noted that whether a dooument is an official one and need
not be produced may be still a common-law question, even where a statute
additionally applies ; so that, if the statute is limited in its application,
the original may still at common law not be required. Thus, the stat-
utes covering the present subject have for their chief purpose (as noted in
the ensuing section) to authorize custodians to give certified copies which
shall be receivable in spite of the Hearsay rule, and so a statute authorizing
the use of a certified copy of a given document will still leave in force the
common-law principle on the present subject ; so that the document may be
proved by an examined copy without production.*
§ 1220. Same : Specific Inatances, under Statutes. In a vast number of
instances, statutes have expressly provided that specific documents in official
custody may be proved without production, i. e. by copy. In many jurisdic-
tions a general rule has by statute been enacted, making the same provision
in general terms for of&cial documents as a class. These statutes, however.
riage-contract deposited by Spanish custom
among government archives, provable by copy) ;
1851, Harvey v. Chouteau, 14 id. 587, 597 (will-
codicil required by Louisiana law to be kept by
notary, provable by copy) ; 1887, State v. Pagels,
. 92 id. 300, 310 (Illinois insane-hospital books
not shown to be public) ; 1897, Carter v. Horn-
back, 139 id. 238, 40 S. W. 893 (a survey not
official, and therefore not entitled to record ;
copy excluded) ; New Hampshire : 1843, Woods
r. Banks, 14 N. H. 101, 109 (proprietary records
need not be produced) ; 1850, Forsaith v. Clark,
21 id. 409, 419 (proprietary charter recorded ;
production not required) ; 1857, Willey v Ports-
mouth, 35 id. 303, 309 (town records ; production
not required) ; 1858, Ferguson v. Clifford, 37 id.
86, 95 (" Books or records of this character [i. e.
official registers or books kept by persons in
pnblie office], being themselves evidence, and
heing usually restricted to a particular custody,
their contents may be proved by an immediate
copy ") ; 1895, State v. Collins, 68 id. 299, 44
Atl. 495 (U. S. internal revenue collector's
records, provable by copy); New York: 1831,
Jackson v. Le;;gett, 7 Wend. 377 (original certif-
icate of incorporation of a society must be pro-
duced); Ohio: 1840, Sheldon v. Coates, 10 Uh.
278, 282 (tax records; original not required);
Penn.li/lvania : 1823, Kingston v. Lesley, 10 S. &
R. 383, 387 (copy of official list in land-office ;
original not required) ; 1 832, Oliphant v. Ferrant,
1 Watts 57 (statute applied to admit copies of
land-office blotters) ; 1852, Strimpfler v. Roberts,
18 Pa. 283, 297 (same); North Carolina: 1816,
Teil ". Roberts, 3 Hayw. 138, semble (postmasters'
valuiitions, in the hands of the postmaster-gen-
eral; proiluction not required) ; 1817, Denton u.
Foute, 4 id. 73 (enlistment-contract of a soldier,
kept at the Ad.jutant-Generars and the Treas-
ury; production not required) ; Tennessee: 1869,
Reeves v. State, 7 Coldw. 96 (account for ex-
penses of taking escaped prisoner, filed with
Comptroller ; production of original not re-
quired, as an official paper, in showing amount
of money received by accountant ; otherwise if
a charge of forgery or perjury was based on the
paper); 1879, Amis v. Marks, 3 Lea 568, 569,
semble (constable's bond offered by certified
copy ; original must be accounted for) ; Texas :
1853, Coons v. Renick, 11 Tex. 134, 136 (con-
tract for military stores, filed in quartermaster's
office ; original not required) ; 1 860, Dikes .v.
Miller, 25 id. (Suppl.) 281, 284, 290 (title-docu-
ment filed in land-office, provable by copy, be-
cause irremovable though not lawfully filed);
1860, Highsmith v. State, ib. 137, 139 (account
of assessor, etc., not lawfully a record of the
Comptroller's office, not provable by copy) ;
United States: 1830, Ronkendorff v. Taylor, 4
Pet. 349, 360 (official assessment list ; original
not required); 1896, Re Hirsch, 74 Fed. 928
(unlawful liquor-selling by C. ; the application
of C. for a Federal license to sell liquors being
admissible to show intent, the fact that the
document was on file in the records of the
Federal deputy-collector of internal revenue,
held not to excuse its production in court) ;
1879, Corhett v. Gibson, 16 Blatchf. 334 (docu-
ments in military headquarters of Department
of the East, provable by copy) ; Vermont: 1862,
Briggs V. Taylor, 35 Vt. 57, 59, 67 (recorded
appointment of deputy-sheriff; original not re-
quired) ; 1887, State v. Spaulding, 60 id. 228,
233, 14 Atl. 769 (internal-revenue record-book,
provable by copy) ; 1898, State v. White, 70 id.
225, 39 Atl. 1085"(records in U. S. tax-collector's
office, provable by copy).
* 1882, Shntesbury v. Hadley, 133 Mass. 242
(copy of a public marriage register sufficient,
where the place of residence of parties was to be
shown by the record, although a statute author-
izing copies spoke only of using them to show
the fact of marriage). Contra: 1889, Martin w.
Hall, 72 Ala. 587 (official bond filed; proof of
original's loss, etc., required for the use of any
but duly certified copy; this seems unsound).
Compare the cases for recorded deeds {post,
§ 1225) ; and the rule as between different kinds
of copies (post, §§ 1269, 1273).
VOL. II. — 29
1451
§ 1220 DOCUMENTARY ORIGINALS. [Chap. XXXIX
usually do no more, as regards the present principle, than the Courts would
otherwise have done under the common-law principle ; the chief object of
such statutes being usually to amplify the common-law exception to the
Hearsay rule by which certified copies by official custodians may become
admissible.^
§ 1221. Same : Exceptions at Common Law. (1) There was no exception
to the general principle at common law for a case where the official document
happened to be actually in court; i. e. it could still be proved by copy.^
(2) There was no exception for an issue of non est factum? as there was
{ante, § 1216) for nul tiel record.
§ 1222. Same : Discriminations. (1) Whether a certified or other copy
by an official not testifying in court may be used, instead of an exam-
ined or sworn copy by a witness testifying on the stand, is a question of
the exception to the Hearsay rule (post, § 1677). (2) Whether a certi-
fied or an examined copy is preferred to oral testimony is a question of
Preferred Testimony (post, §§ 1267-1275). (3) Whether an official land-
title record, or the like, should be produced, depends often on whether by
the laud-law the official record or the official certificate issued to the owner
is regarded as the investitive and original document of title ; this question
being determined {post, § 1239), the principles of the present subject and
of deed-registration Qpost, § 1224), then control the result. (4) Whether
a public document is foriidden to be proved, either by original or by copy,
because of a privilege of official secrecy, involves other principles (post,
§§ 2182, 2367).
§ 1223. (7) Private Books of Public Importance (Banks, Corporations,
Title- Abstracts, Marriage-Registers, etc.). Where private documents are in
such general and constant use and importance that their liability to removal
for production as evidence would cause not merely individual but general
inconvenience, there is ground for applying the reasons of the preceding two
rules of exemption and for allowing such documents to be proved without
production. N"o such broad principle was established by the common law ; ^
^ To avoid repetition, such statutes are col- the hooks themselves were in court; Lord
lected under that subject, post, § 1680, since by Kenyon, C. J., said " they were public books,
one and the same enactment they exempt from which public convenience required should not
producing the original (applying the present be removed from place to place ; and, though
principle) and also admit certified copies (apply- the books were in court, he would not, for the
ing the Hearsay exception). Sometimes the sake of example, break in upon a rule founded
statute distinctly repudiates the application of on that principle of public convenience ").
the present principle, by requiring the original Contra : 1818, Butler v. Carver, 2 Stark. 434
to be accounted for before copies can be used. (where the witness produces the document in
A few classes of statutes, however, will be found court, a copy is not allowed),
under the following heads: (a) a few in which * 1843, Treasurers u. Witsall, 1 Speer 220,
the document is treated as of the nature of a 221 (sheriff's bond ; plea, non est factum ; certi-
judicial record [e.g. a probate bond filed) have fied copy sufliicient).
been mentioned ante, § 1215 j (b) those provid- i 185.'5, Pollock, C. B., iu Boyle v. Wiseman,
ing for the proof of a recorded conveyance are 10 Excb. 647, 654, suggested that there might be
specially dealt with post, § 1 225 ; (c) those pro- a like rule, iu tlie case of " documents which
viding for Government land-grants are placed though of a private nature are meant to be
post, § 1239. made public, such as commercial instruments,"
^ 1798, Marsh v. CoUnett, 2 Esp. 665 (to etc., as for public documents in the strict sense,
prove transfer of stock, a copy of the transfer «. g. court records ; but he gives no reason for
taken from the Bank-books was received, though his view.
1452
§§ 1177-1282] BOOKS OF BANKS, CORPORATIONS, ETC. § 1223
but some instances were recognized in which the germ of such a principle is
contained ; and in a few other specific instances it has been recognized by-
statute :
1840, Alderson, B., in Mortimer v. McCallan, 6 M. & W. 58, 67: " Then if they are not
removable, on the ground of public inconvenience, that is upon the same footing in point
of principle as in the case of that which is not removable by the physical nature of the
thing itself. . . . The necessity of the case in the one instance, and in the other case the
general public inconvenience which would follow from the books being removed, supplies
the reason of the rule.
1878, Campbell, C. J., in People v. Hurst, 41 Mich. 328, 331, 1 N. W. 1027: "Banks
are subject to the performance of duties to the public which might be seriously interfered
with if they were compelled to carry the books needed in their business into every court
or tribunal where testimony is to be introduced concerning them. Books belonging in
public offices cannot be removed from their legal custody without some strong necessity for
their production. While bank-books are not public to the same extent, yet the business
which the corporations are required to transact cannot be done unless the books are
usually preserved where they belong. The blotter . . . must be in constant demand,
and we see no reason why its contents may not be shown without production of the
original, in ordinary cases, where no question of genuineness is likely to arise requiring a
personal inspection." '
Thus, at common law in England, the books of the Bank of England (legally
a private institution) were not required to be produced ;2 and the same
principle was applied to the books of the old Hast India Oompany^ and ,
occasionally to other documents.* In this country, the principle has been
applied to hanks in a few instances at common law,^ and in other instances
by statute.® It has also been applied, by statute, to unofficial nfiarriage-
2 1840, Mortimer v. M'Callan, 6 M. & W. 58, fer-books of the E. I. Co.; for the utmost con-
67 (writing in the books of the Bank of Eng- fusion would occur if they could be transported
land; copy receivable, since "the removal of to any the most distant part of the kingdom
them would be so inconvenient" ; "the public whenever their contents should be thought
inconvenience "as a principle "has been adopted material on the trial of a cause"); 1844,
in a variety of cases, and has never been ques- Parke, B., in Doe o. Roberts, 13 M. & W. 520,
tioned since ")• So now, by statute, to all 532 (provable by copy).
bankers' books : St. 1879, c. II, §§ 3, 6, Bankers' * 1724, Downes v. Mooreman, Bunbury 189,
Books Evidence Act (banker's bool<-entry prov- 191 (copy of an old contract in the Bodleian
able by copy, verified on the stand or by affi- Library of Oxford ; the University statutes
davit ; unless Court orders production) ; 1892, prohibited the taking out of books ; the copy
Parnell v. Wood, Prob. 137 ("The Act was allowed "upon the very particular circum-
passed mainly for the relief of bankers, to avoid stances of this case ").
the serious inconvenience occasioned to them by ^ 1845, Crawford v. Branch Bank, 8 Ala. 79
their having to produce books which were in (books of the State bank need not be produced) ;
constant use in their business"). 1878, People v. Hurst, 41 Mich. 328 (see qnota-
2 1702, Geery v. Hopkins, 2 Ld. Rayra. 851 tion supra),
(the cash-book of " the old East India Company," « Newf . St. 1 897, c. 21 (bankers' books, prov-
required to be produced) ; 1775, Trial of Maha^ able by copy, on certain conditions) ; Mass. St.
rajah Nundocomar, 20 How. St. Tr. 1057 (Coun- 1894, c. 317, § 49 (domestic savings bank's books,
cil proceedings of the East India Company, provable by affidavit copy of bank custodian) ;
provable by copy, because "the bringing the Pa. St. 1883, P. & L. Dig. Evid. 38-41 ("veri-
books and papers may subject them to the fied" copies of bank-book entries, receivable
hazard of being lost and may impede the busi- where bank is not a party, unless against
ness"); 1771, Wynne v. Middleton, cited in affidavit of injustice) ; Wis. Stats. 1898, § 4189 6
2 Dougl. 593 (transfer-books of the East India (bank-books provable, apart from special order,
Company ; Lord Mansfield, C. J., said " that the by copy sworn to by an officer of the bank on
reason ab incoiwenienti, for holding it not nee- the stand or by affidavit ; the original to he
essary to produce records, applied with stUl open to the inspection of the party),
greater force to such public books as the trans-
1453
§ 1223
DOCUMENTARY ORIGIjSTALS.
[Chap. XXXIX
registers i^ to abstracts of title privately owned but generally consulted,^ and to
various specific kinds of privately-owned records in different occupations.*
In some jurisdictions, a statute of questionable policy has applied the rule
to corporation-hooks.^" This line of discrimination is both unsound and
unfair. That a business is managed by corporate powers, or that it is exten-
sive and wealthy, is no reason for distinction. It is just as inconvenient for
the poor man or for a small commercial house to carry off his account-books
into court ; and he can even less afford to siiffer it. These statutes miss tlie
real point of the rule. It implies two circumstances, namely, the frequency
of litigation involving such documents, and the consequent demand for them
in court by litigant third persons or opponents. Such conditions exist for
the books of a business of banking, of transportation (by rail or by express),
of insurance, of communication (by telegraph or by telephone), and of a few
others. But they have no relation to the corporate organization of the business,
or to the relative size of it. They aim merely to protect a business which is
liable to be called upon in an inordinate degree to make that contribution
to justice which every citizen must make as a witness when needed (post,
§ 2192). If then any further concession can properly be made to personal
convenience, by exempting from production the account-books of an ordi-
nary business, it should be made without discrimination. There is already,
' The.se statutes, which also make a certain
kind of copy admissible, have been collected in
one place, post, § 1683 ; the statutes for public
registers are in § 1680. There is even a com-
mon-law ruling: 1814, Stoever v. Whitman, 6
Binn. 416 (church-register allowed to be proved
by sworn copy, as a "common-law proof").
' These statutes are collected in one place,
post, § 170.5.
9 N. Sc. Rev. St. 1900, c. 99, § 20+ (minutes
of railway corporation's meetings, provable by
secretary's certified copy); § 214 (so for by-
laws, etc.) ; Out. Rev. St. 1897, c. 207, § 40
(railroad by-laws and minutes of proceedings
are provable by certified copy) ; Intl. Rev. 8t.
1897, § 4619 (cimp-meeting corporation's rec-
ords, pj'ovable by secretary's certified copy) ;
§§ .'5686, 5706 (records of telegraph and tele-
phone companies, provable by attested copy,
" when the interests of said corporation are con-
cerned ") ; La. Rev. L. 1897, § 694 (books and
records of railroad companies, provable by sec-
retary's certified copy under corporate seal) ;
Mich. Comp. L. 1897, § 6220 (by-laws of society
for loaning and investing, provable by copy) ;
§ 7169 (.<anie for printing and publishing asso-
ciation) ; § 8439 (same for corporation for treat-
ing disease) ; R. I. Gen. L. 1896, c. 244, § 45
(newspapers deposited with R. I. Historical
Society, provable by certified copy) ; Wis. Stats.
1898, § 4182 a (certain insurance companies'
books, not required to be produced, except by
special order).
" Canada: Dom. St. 1893, c. 31, § 12 (cor-
poration documents or boolc-entries ; cited post,
§ 1680); B. C. Rev. St. 1897, c. 71, § 13
(like Can. St. 1893, c. 31, § 12) ; Man. St. 1902,
c. 57, § 14 (like Can. St. 1893, c. 31, § 12);
1454
N. Sc. Kev. St. 1900, c. 163, § 11 (like Can. St.
1893, c. 31, § 12) ; Ort. Rev. St. 1897, c. 73,
§ 26 (documents and books of " any corporation
created by charter or statute in this province"
are provable by certified copy) ; c. 191, § 66
(corporate by-law is provable by certified copy) ;
Ga. Code 1895, § 5236 (domestic corporation's
books, provable without production, by chief
ofiicer's certified copy) ; 1900, Maynard v. Inter-
state B. & L. Assoc, 1 12 Ga. 443, 37 S. E. 741 (stat-
ute applied) ; 111. Rev. St. 1874, c. 51, § 15 (papers
and records of "any corporation or incorporated
association," provable by certified copy of clerk,
etc., under corporate seal, if any) ; Ind. Rev. St.
1897, § 479 ("acts and proceedings of corpora-
tions," provable by sworn copy) ; Me. Pub. St.
1883, c. 46, § 10 (corporation-books, semlde, may
be proved by copy) ; Mo. Rev. St. 1899, § 3101
(domestic corporation's records and papers on
file, provable by certified copy) ; Nev. Gen.
St. 1885, § 3449 (copy receivable "when the
original is a record or other document in the
custody of a public officer, or officer of a corpo-
ration") ; Pa. St. 1897, May 25, Pub. L. 82, § 1
(quoted pos«, § 1519); 1900, Page v. Knights &
Ladies, — Tenn. — , 61 S. W. 1068 (corpora-
tion books of a benefit society ; originals re-
quired, except that as between stockholders and
the corporation a copy certified under seal by
the secretary suffices, under Code § 5569).
One Court seems tp have reached the result
at common law: 1838, Madison D. & P. R. Co.
V. Whitesel, 11 Ind. 55, 57 (record-books of cor-
porations, not required to be produced); 1862,
Evans k. Turnpike Co., 18 id. 101, 103 (articles
of association of turnpike companv; original
required) ; 1873, King v. Ins. Co., 45 id. 43, 59
(like 11 id. 55, supra).
§§ 1177-1282] BOOKS OF BANKS, CORPOEATIONS, ETC. § 1224
in Canada, a class of statutes which avoid that objectionable feature."
As a radical measure, the best enactment would be one which left the
general principle, in its application in a given case, to the trial Court's
discretion.
§ 1224. (8) Recorded Conveyances; General Principle; Pour Porma of
Rule. That a deed has been lawfully recorded is of itself no reason why the
ordinary rule of production should not apply where the deed's contents are
to be proved. The deed, after being recorded, is returned to the grantee or
other party entitled to its possession, and does not become a part of the
official files so as to be affected by the principle of either of the two preceding
exemptions (§§ 1218, 1223); so that, apart from other special considerations,
the party offering to prove the deed's contents should either produce it or
account for its absence by some one of the ordinary excuses for non-produc-
tion. Such special considerations, however, in many jurisdictions, have long
been acknowledged — at common law and apart from express statutory pro-
visions — to apply to the case of a recorded conveyance.
In England, it is not entirely clear whether these considerations were ever
recognized. There existed only limited provisions for the public recording
of conveyances ; one of these covered the old method of transfer by " bargain
and sale " ; ^ the other consisted of a group of special statutes providing a
recording system for specific districts, notably Middlesex and Yorkshire
couuties.^ These statutes did not expressly provide that proof might be
made without production of the original conveyances ; and the precedents,
being complicated by the consideration whether under the Hearsay rule the
recorder's or register's certified copies were receivable {post, § 1650), do not
indicate a final settlement of the principle ; although there was apparently at
one time a regular practice of not requiring production,** and the tradition to
" B. C. Rev. St. 1897, c. 71, § 41 (commercial Lady Ivy's Trial, 10 How. St. Tr. .555, 595 (deed
documents ; like Ont. Rev. St. 1897, c. 7.'5,§ 51) ; enrolled, proved by examined copy); 1694,
Man. Rev. St. 1902, c. 57, §§26, 27 (substantially Smart v. Williams, Comb. 247 ("they held a
like Out. Kev. St. 1897, c. 73, § 51, substitnting sworn copy of a deed enrolled good evidence") ;
three days for the counter-notice); Ont. Rev. 1696, Lynch v. Gierke, 3 Salk. 154 (Holt, C. J.:
St. 1897, c. 73, § 51 (" telegrams, letters, ship- "Wherever an original is of a public nature,
ping-bills, bills of lading, delivery orders, receipts, and would be evidence if produced, an im-
accouats, and other written instruments used in mediate sworn copy thereof will be evidence ;
business and other transactions " are provable as, the copy of a bargain and sale or of a deed
by copy, on ten days' notice before trial to the enrolled, of a church register, etc.") ; ante 1767,
opponent ; unless the opponent, within four days BuUer, Nisi Prius, 252 (an enrolment of a patent
after the time mentioned in the notice offering in the same court need not be proffered, though
opportunity of inspection, gives notice of inten- a deed enrolled must be, for the Court will take
tiou to dispute the correctness or genuineness of notice of the former public act, though not of
the copy and to " require proof of the original ") ; the latter public act; but "bv 10 Anne, c. 18,
P. E. I. St. 1889, § 48 (like Ont. R. S. 1897, where any bargain and sale inroUed is pleaded
c. 73, § 51 ; but allowing only three days for the with a profert, the party [offering it], to answer
opponent to demand the original). such profert, may produce a copy of the inrol-
"■ See posi, § 16-^0, for these statutes. ment"); 1797, Molton v. Harris, 2 Esp. 549
^ See ;50s<, § 1650. (deed in opponent's hands; no notice being
' 1593, Wymark's Case, 5 Co. Rep. 75 given, the "memorial of the conveyance " was
("Allhough a deed be enrolled in court, one excluded); 1826, Doe v. Kilner, 2 C. & P. 289
cannot plead it in the same court without shew- (after proof of loss of deed registered in Middle-
ing it " ; but otherwise of letters patent) ; 1613, sex, examined copies from the registry were
Read v. Hide, 3 Co. Inst. 173, semhie (deed- admitted); 1838, Collins c. Maule, 8 C. & P.
enrolled may be proved by exemplified copy of 502 (Middlesex registry ; a deed being shown
enrolment; see quotation post, § 1682); 1684, lost, an examined copy of the registry was
1455
§ 1224 DOCUMENTAET ORIGINALS. [Chap. XXXIX
the same effect in the southeastern colonies is strongly corroborative of this
practice.
In the United States, three kinds of results were evolved at common law ;
a fourth kind was added by statutory invention ; and statutes also in many
jarisdictions followed one or another of the common-law methods:*
(a) By one of these views (originating in the southeastern States) the
statutory system of public registration is thought to imply, in its policy, a
general resort to the public record as a source" of proof, and, for the sake of
public convenience, a general dispensation from the necessity of preserving
as a muniment of title a class of documents whose legal importance is com-
paratively little apart from the record. Thus, the registration system implies
that the original deed need not be produced nor accounted for in any way:
1825, Colcock, J., in Peay v. Picket, 3 McCord 318, 321 : " From the earliest enact-
ments of the British Parliament on this subject, to the present day, a period of about 280
years, it has been the established law of that country that a copy of a deed duly enrolled
is as good evidence as the original itself ; and I think I do not say too much wheu I
assert that it was generally considered to be the law of this land from the first enactment
on the same subject here, in 1731, to the decision of Purvis v. Robinson, a decision much
to be regretted."
1831, Story, J., in Doe v. Winn, 5 Pet. 233, 241 : " We think it clear that by the common
law, as held for a long period, an exemplification of a public grant under the Great Seal is
admissible in evidence, as being record proof of as high a nature as the original. . . .
There was in former times a technical distinction existing on this subject which deserves
notice. As evidence, such exemplifications of letters patent seem to have been generally
deemed admissible. But where, in pleading, a profert was made of letters patent, there,
upon the principles of pleading, the original under the Great Seal was required to be pro-
duced, for a profert could not be made of any copy or exemplification. It was to cure
this difficulty that the statutes of 3 Edw. VI, c. 4, and 13 Eliz. c. 6, were passed, by which
patentees and all claiming under them were enabled to make title in pleading by showing
forth an exemplification of the letters patent as if the original were pleaded and set
forth. These statutes, being passed before the emigration of our ancestors, being appli-
cable to our situation, and in amendment of the law, constitute a part of our common
law. A similar effect was given by the statute of 10 Anne, c. 18, to copies of deeds of
bargain and sale, enrolled under the statute of Henry VIII, when offered by way of
profert in pleading ; and since that period a copy of the enrolment of a bargain and sale
is held as good evidence as the original itself. Such, then, being the rule of evidence of
the common law in regard to exemplifications under the Great Seal of public grants, the
application of it to the case now at bar will be at once perceived, since by the laws of
Georgia all public grants are required to be recorded in the proper State department."
(b) By another view, chiefly represented in New England and in the States
received) ; 1828, Rowe v. Brenton, 8 B. & 0. leases of Crown lands in Wales, held provahle
737, 755 (lease of land in duchy of Cornwall, bv examined copies, on the ground that "the
the fee of which wa.s alternately in the Dake and original documents . . . are kept among the
in the Crown; the enrolled record was clearly mnniments of the Crown" aud could not be
sufficient for a Crown lease, " because the Crown removed).
can only grant by matter of record " ; the lease Compare the English precedents as to cer-
here was by a clanse required to be enrolled; tified copies {post, § 1650).
held, that the original need not be produced; * The earliest statutes appear to have been
Bayley, B. : " There is a regular of5ce and an those of New Jersey in 1713, of Pennsylvania in
auditor for raanasing these matters, whose duty 1715, and of South'Carolina in 1731. Compare
it is to enrol authentic documents onlv ") ; 1 844, the history of the doctrine of certified copies
Doe V. Roberts, 13 M. & W. 520, 530 (enrolled {post, § 1651).
1456
§§ 1177-1282] EECORDED CONVEYANCES. § 1224
about the Ohio Eiver (and appearing about the same time in all), the result
was based on the change of custom naturally introduced into the practice
for title-deeds by the registration system. The continuous handing down of
prior title-deeds to each successive grantee becomes no longer necessary,
and each grantee keeps his own deed and receives no prior ones. Thus, the
only person who may fairly be supposed to possess a deed is the grantee ;
and hence it is only deeds in which the grantee is either the proponent or the
opponent in the trial that can be assumed to be in either party's possession,
since the prior ones are in prior grantees' hands and are likely to be no
longer in existence as not being of importance:
1828, Per Curiam, in Eaton v. Campbell, 7 Pick. 10 : " In England, on the conveyance
of land, all the title-deeds are delivered to the purchaser, and it is reasonable to require
him to produce the original deed given to a prior grantee. . . . [But] here the grantee
takes only the immediate deed to himself, relying on the covenants of his grantor ; he
has no right to the possession of all the title-deeds of the estate; and to require him
to produce all the original deeds for 20 years or more, and to bring in the subscribing
■witnesses, would be unreasonable and oppressive."
1854, Shaw, C. J., in Com. v. Emery, 2 Gray 80 : "In all case.s original deeds should
be required if they can be had; but as this would be burdensome and expensive, if not
impossible in many cases, some relaxation of this rule was necessary for practical pur-
poses. . . . Our system of conveyancing, modified by the registry law, is that each grantee
retains the deed made immediately to himself, to enable him to make good his warranties.
Succeeding grantees do not, as a matter of course, take possession of deeds made to pre-
ceding parties so as to be able to prove a chain of title by a series of original deeds.
Every grantee, therefore, is the keeper of his dwn deed, and of his own deed only. . . .
IVhen, then, he has occasion to prove any fact by such deed, he cannot use a copy,
because it would be offering inferior evidence, when in theory of law a superior is in his
possession or power ; it is only on proof of the loss of the original, in such case, that any
secondary evidence can be received. . . . [So also even where the opponent is the grantee
of the deed, i. e.] where such original is in theory of law in possession- of the adverse
party, because upon notice the adverse party is bound to produce it," or allow secondary
evidence.
1856, Slorrs, J., in Bolton v. Cummings, 25 Conn. 410, 421 : "In view of this practice
[for every grantee to retain his own title-deeds], which would oftentimes render it ex-
tremely inconvenient to produce remote original title-deeds of lands, and of the provisions
of our registry-system, which require those deeds to be recorded and upon official copies
of the records of which reliance may safely be placed as to the contents of those deeds,
our Courts have departed from the common-law rule in regard to the admission of second-
ary evidence of their contents, and held that where a conveyance of real estate which is
required to be recorded is to a person not a party to the suit, it is competent, and sufficient
in the first instance, to prove the contents of it by a copy certified by the recording officer,
without laying a foundation for such proof by first accounting for the non-production of
the original."
In strictness, it will be noted, this reasoning would exempt from producing
only the prior title-deeds in the proponent's chain of title. The case of a col-
lateral and accessible grantee — for example, in an action for rent against a
tenant evicted by superior title, the deed of the grantee-evictor, desired to be
proved by the tenant — is not covered ; but in most of those jurisdictions the
principle was extended to it ; so that the rule became, not only that he was
1457
§ 1224 DOCUMENTAEY ORIGIN ALg. [Chap. XXXIX
exempted from producing all prior deeds in his own chain of title, but from
producing any deeds whatever not presumably in possession of a party to
the suit.
(c) By a third view (obtaining perhaps in the greater number of jurisdic-
tions until statutes intervened), neither the policy of the registry system nor
the practices it encouraged were regarded as justifying any exemption from
the ordinary rule that the deed must be produced or accounted for. The
recorded deed must be accounted for like any other:
1795, Walies, J., in Purvis v. Robinson, 1 Bay 493, 494 : "If, by recording a deed, the
necessity of producing it was dispensed with, then the proof of its validity wouJd rest on
the ex parte oath of one of the subscribing witnesses before any justice of the peace and
without any examination. It would be very easy by this means to conceal, under the fair
dress of a record, the foulest features of fraud manifest on the face of the original, and
to give even to a forged deed all the effects of a valid one."
(d) The fourth type of rule (entirely statutory) exhibits a number of
minor varieties ; but its substance is that the proponent may proceed with-
out production if he first proves (often by affidavit) that the deed in ques-
tion is " not within his possession or control." This rule falls short of the
strict one last mentioned, in that the deed might be in the opponent's posses-
sion or in a third person's possession, and yet the proponent need make no
effort to obtain it. The rule differs, too, from the second one above men-
tioned, in that for a non-grantee as proponent it is stricter, since he must at
least make some proof that he has not control, while by the second rule this
appears from the nature of the deed as alleged. The rule is, however, easier
(than the second rule) for a grantee as proponent, since the proof that it is
not in his " possession or control " may fall short of the proof by ordinary
common-law rules that would be required of the grantee-proponent under
the second rule. Furthermore, it is easier in that it does not require steps to
be taken for production where the deed is in the opponent's possession (ex-
cept by some statutes requiring prior notice). By one variety of this fourth
form, the proponent is to show that the deed is "lost or out of his power."
By another variety, he is to give notice a certain time beforehand that he
intends to use a copy. Statutory enactments other than those taking the
fourth form, or some variety of it, have usually adopted the first, i. e. in
allowing unconditionally the use of a copy of the record without producing
or accounting for the original.
§ 1225. Same : Statutes and Decisions.^ The law is in some jurisdictions
the result solely of judicial decision ; in others, of one or more statutes super-
^ The limitations of the following coUec- Canada: Dominion: Rev. St. 1886, c. 51,
tlons of decisions and statutes are above-noted §§ 38 fE. (registry of title ; applicable to the
in the text; these same statutes, however, are Dominion Territories) ; St. 1893, c. 31, § 18
also to be consulted elsewhere in their bearings (similar to Ont. R. S. 1897, c. 73, § 32)..
on other principles, particularly the i;!nrfo/"q^cer British Columbia: Rev. St. 1897, c. Ill, § 48
cerlifi/ing copies and the mode of certifying by (registrar's certified copy of any recorded instru-
seal, etc. {post, § 1651), and the necessity of notice ment, except a will, may be used " in the absence
to the opponent before usiug copies {post, § 1859) : of the original when the absence of such origi-
England : the decisions have been collected nal is duly accounted for, and if produced by a
ante, § 1224 ; the statutes are placed post, § 1650. party not having the control of the original ) ;
1458
§§ 1177-1282]
RECOEDED CONVEYANCES.
§ 1225
imposed upon early decisions ; and in others, of statutes from the beginning.
For an accurate understanding of the present validity of the earlier rulings,
c. 71, § 19 (like Can. St. 1893, c. 31, § 18);
St. 1899, c. 62, § 158 (similar to Man. St. 1902,
c. 148, § 161) ; St. 1902, c. 22, § 2 (instrument
kept or registered in a laud office or registry of
a county or tlie Supreme Court ; certified copy
shall be evidence " of the original ") ; 1899,
Pavier v. Snow, 7 Br. C. 81 (instruments- re-
corded under c. 135, § 94, are admissible under
§ 98, without proof of loss of original).
Manitoba: Rev. St. 1902, c. 148, § 161, Real
Property Act (a certificate of land title, or any
instrument deposited or registered in such ofiice,
is provable by certified copy " as if the original
within such office was produced" ) ; c. 150, § 51,
Registry Act (certified copy of a registered in-
strument, except crown grants, orders in council,
mechanics' lien claims, and notices, etc., under a
mortgage power of sale, shall be " prima facte
evidence of the contents and execution of the
original," "in case of loss, destruction, or ob-
literation, or partial destruction or obliteration
of the original " ; compare the statutes cited
post, § 1651) ; c. 11, § 19 (biE of sale or mort-
gage of chattels ; clerk's certified copy to be evi-
dence of registration only) ; c. 57, § 17 (Quebec
notarial instruments; like Can. St. 1893, c. 31,
§18).
New Brunswick: Consol. St. 1877, c. 46, § 10
(Crown grants before the erection of the Prov-
ince are provable " as hereinbefore provided " ;
compare post, § 1680) ; St. 1888, c. 8 (deed or
will registered in the sheriff-court books of
Scotland is provable by certified copy, etc.) ; St.
1894, c. 20, § 34 (filed notice of sale under mort-
gage power of sale; certified copy admissible,
on notice as infra, ib. § 60, and an affidavit that
the original is on file or that it is " not in the
possession of the person offering the same, his
agent or attorney, and that he does not know
where the same is to be found ") ; § 59 (duly
registered instruments, other than wills, may be
proved, " in the absence of the original instru-
ment," by the registrar's certified copy, on
affidavit " that such original is not under the
control of the party, and that he does not know
where the same may be found," and on six days'
written notice to the opponent with a copy of
the copy and affidavit) ; § 60 (when the offering
party " resides out of the province, or at the
time of the making of the affidavit is without
the province," his agent or attorney may make
affidavit that the party is non-resident and that
the affiant " has not the possession of the original
instrument and does not know where the same
is or may be found, and that he has reason to
believe that such person has not the original
instrument in his possession and does not know
wliere the same is or may be found," and that
he has not left to evade making affidavit, and,
on six days' notice and service of a copy of the
affidavit, a certified copy may be used) ; § 62 (no
certified copy of any registered instrument shall
be received unless the original, or a duplicate
original, "is in the possession of the adverse
party, and not in the possession of the party
offering such eyidence, and that due notice shall
have been given to produce the same ") ; St.
1897, c. 11 (instruments filed under the Bills of
Sale Act of 1893 are provable by the registrar's
certified copy, on affidavit that " such originals
or a duplicate thereof are not under the control
of the party," and after six days' notice to the
opponent and service of a copy of the copy and
the affidavit) ; 1883, McCormack v. McBride, 23
N. Br. 12 (three deeds ; an affidavit that they were
not under his control, etc., excluded ; the affidavit
should have said that neither was ; Wetmore,
J., diss.) ; 1886, Doe v. Kennedy, 26 id. 83, 88,
94 (the affidavit need not he of the party himself ;
Wetmore, J., diss.).
Newfoundland: Consol. St. 1892, c. 57, § 25
(a " deed or document " duly registered may
be proved by certified copy, if the original is
"proved to be lost").
Nova Scotia: Rev. St. 1900, c. 163, § 20
(crown grants provable, witliout production of
the original, by certain certified copies) ; § 21
(" any deed, or any document from the books of
registry " is provable by certified or examined
copy, if it appears "by the affidavit of the party,
his "agent, or solicitor, that such original is not
in the possession or under the control of the
party, and that he is unable to procure the
same ") ; § 24 (" every bill of sale or other docu-
ment, filed in any registry of deeds, may be
proved" by producing a certified copy); § 27
(Quebec notarial instruments ; substantially like
Can. St. 1893, c. 31, § 18, omitting the proviso).
Northwest Territories (see also Dominion,
supra): Consol. Ord. 1898, c. 43, § 30, c. 44,
§ 9 (mortgages and sales of chattels are prov-
able by certified copy " as if the original instru-
ment was produced ").
Ontai-io: Rev. St. 1897, c. 73, §32 ("notarial
act or instrument" in Quebec, filed, enrolled,
or enregistered, is provable by notarial copy;
compare the further quotation post, § 1651);
§ 46 ("any registered instrument or memorial "
is provable by certified copy) ; § 47 (" in any
action where it would be necessary to produce
and prove an original instrument which has
been registered in order to establish such instru-
ment and the contents thereof," the foregoing
certified copy may be used, on notice ten days
before trial ; unless the opponent within four
days after receipt of notice gives notice that he
" disputes the validity of the original instru-
ment"); § 50 (for "any instrument affecting
land, which may be deposited, filed, kept, or
registered, in the office of the master or local
master of registered titles," a certified copy
under the master's seal of office " shall be prima
facie evidence of such instrument and of the
contents thereof " ; and the original shall not be
required to be produced unless by order of the
judge, giving the special reasons) ; c. 134, § 2
(in completing contracts for the sale of land,
" registered memorials of discharged mort-
gages " shall suffice without producing the orig-
inals, unless the former are shown inaccurate ;
and " the vendor shall not be bound to produce
the mortgages unless they appear to be in his
1459
§ 1225
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
a complete historical exposition of the course of legislation in each State
would be necessary ; but that is here impossible.
possession or power " ; for other instruments,
registered memorials twenty years old suffice,
unless shown iuaccurate, " i£ the memorials pur-
port to be executed by the grantor, or in other
cases, if possession has been consistent with the
registered title " ; the vendor " shall not be
bound to produce the original instrumenl's un-
less they appear to be in his possession or
power ; and the memorials shall be presumed
to contaiu all the material coutents of the in-
struments to which they relate"); c. 148, § 24
(chattel mortgage or sale filed; certified copy
shall be received, but only to prove the fact of
filing).
Prince Edward Island: St. 1889, § 42 (certi-
fied copy of a "deed or mortgage duly regis-
tered " is admissible if the Court is satisfied by
the party's affidavit that the original " is not
under his control, and that he does not know
wliere the same may be found"); §4.3 (seven
days' notice must he given, with service of
copies of the deed-copy and affidavit) ; § 44 (public
lands commissioner's duplicate deed, provable on
the same terms as in §§ 42, 43) ; § 45 (registered
plan, provable like a deed) ; § 46 (Surrogate's
registered license to sell real estate is provable
by certified copy) ; § 49 (filed bill of sale or mort-
gage of chattels is provable by certified copy).
United States: Alabama tCoiu 1897, §§992,
995 (conveyances, etc., duly acknowledged or
proved and recorded ; " if it appears to the
Court that the original conveyance has been
lost or destroyed or that the party offering
the transcript has not the custody or control
thereof," a certified transcript is to be received) ;
§ 1018 (same for conditional sales of personalty) ;
§ 1 544 ( recorded declaration of notice of adverse
possession, provable by certified copy) ; St. 1899,
Feb. 1, No. 241 (certified transcript of conveyance
duly recorded heretofore or within 12 months
must be received, "if it appears to the Court
that the original conveyance has been lost or
destroyed or that the party offering the tran-
script has not the custody or control thereof ") ;
18.'5i, Sommerville v. Stephenson, 3 Stew. 271,
277 (deed from opponent to offeror ; production
required, under the statute, which merely de-
clared the common law) ; 1832, Mitchell v.
Mitchell, 3 Stew. & P. 81, 84 (grantee offering;
loss must be shown) ; 1839, Swift v. Fitzhugh,
9 Port. 39, 52, 57 (wife claiming under marriage
settlement ; original must be accounted for) ;
1844, Beallw. Bearing, 7 Ala. 124,127 (purchaser
at sheriff's sale ; unrecorded deed to debtor, pre-
sumed not in purchaser's possession, on the
facts) ; 1847, Thompson v. Ives, 11 id. 239, 243,
semble (both parties claiming as vendee under
execution against same person ; neither party
presumed to be in possession of deeds to debtor
or his predecessor so that a copy could be used ou
notice to opponent) ; 1849, Potier v. Barclay, 15
id. 439, 441, 452 (dower; deed to plaintiff's hus-
band ; production by her required) ; 1855, Hussey
V. Roquemoie, 27 id. 281, 290 (grantee presumed
to have possession ; if he is a party, notice is
necessary ; here, not under the statute) ; 1 859,
1460
Shorter v. Sheppard, 33 id. 648, 653 (deed to
plaintiff's grantor-debtor, presumed to have been
carried off by him when fleeing the country) ;
1866, White v. Hutchings, 40 id. 253, 268 (deed
to offeror's predecessor in title, more than 30
years before ; presumed not in offeror's control) ;
1872, .Tones v. Walker, 47 id. 175, 183 (deed to
claimant's grantor; production not required);
1875, Hendon v. "White, 52 id. 597, 600 (pur-
chaser at execution ; deed to debtor presumed
not in his possession) ; 1883, Huckabee v. Shep-
herd, 75 id. 342, 344 (grantee offering ; required
to show the original unavailable) ; 1884, Beard
u. Ryan, 78 id. 37, 43 (deeds to his grantor and
predecessors, not presumed to be in offeror's
possession) ; 1888, Allison v. Little, 85 id. 512,
516, 5 So. 221 (similar to White v. Hutch-
ings) ; 1890, Florence L. M. & M. Co. v.
Warren, 91 id. 533, 537, 9 So. 384 (creditor
proving tax-deed to his debtor as grantee;
presumption that it remained with grantee,
so as to relieve creditor from " the duty of
accounting for the original"); 1891, Jones v.
Hagler, 95 id. 529, 532, 10 So. 345 (offeror
of deed to his grantor; oriirinal not required,
but after testimony that he had never had its
control) ; 1895, Farrow v. R, Co., 109 id. 448,
453, 20 So. 303 (deed in chain of title and
in offeror's possession ; production required ) ;
1895, King v. Scheuer, 105 id. 558, 16 So. 923
(original must be accounted for) ; 1896, Farrow
V. R. Co., 109 id. 448,20 So. 303 (statute applied,
and original required to be accounted for) ;
1900, Burgess v. Blake, 128 id. 105, 28 So. 963
(following Farrow v. R. Co.) ; 1902, Hammond
V. Blue, 132 id. 337, 31 So. 357 (proponent must
show not only his non-possession but also his
non-control of the original).
Alaska: Civ. C. 1900, §§ 99, 106, 108 (like Or.
Annot. C. 1892, §§ 3028, 3035, 3037).
Arizona: Rev. St. 1887, § 1873 ("every in-
strument of writing" lawfully recorded after
lawful proof or acknowle<lgment, is provable by
certified copy of record, " whenever any party
to a suit shall file among the papers of the
cause an affidavit stating that any instrument of
writing, recorded as aforesaid, has been lost or
that he cannot procure the original ") ; § 3144
(in ejectment, proof of a " common source " of
title may be made by certified copies of " the
deed or other title-papers showing a claim of
title to the defendant," if filed three days before
trial, with notice to opponent).
Arkansas : Stats. 1894, § 722 (recorder's certi-
fied transcript of a duly recorded deed, admis-
sible, if the original appears to be " lost or not
within the power and control of the party wish-
ing to u.se the same"); § 726 (duly recorded
deeds of administrator, executor, guardian, com-
missioner in chancery, and sheriff; the orig-
inal " or a certified copv thereof," admissible) ;
1856, McNeill n. Arnold, 17 Ark. 1.54, 169,
semhle (production not required); 1856, Tram-
mell V. Thurmond, ib. 206, 215 (production re-
quired, under territorial statute not expressly
dispensing) j 1860, Bright v. Pennywit, 21 id.
§§ 1177-1282]
RECORDED CONVEYANCES.
§ 1225
The data here to be considered include statutes and decisions affecting the
production of recorded conveyances. They are therefore limited in the fol-
130, 133, 136 (deed to opponent; under the
statute, offeror must show original not within
his power or control ; whether notice to pro-
duce must here also be given, undecided) ; 1885,
Calloway v. Gibbins, 45 id. 81, 85 (unrecorded
deed to offeror's predecessor; search held
sufficient).
California: C. C. P. 1872, § 1855 (the origi-
nal of a writing must be produced, except " 4.
when the original has been recorded and a cer-
tified copy of the record is made evidence by
this code or other statute"); § 1893 (certified
copy of .a "public writing," admissible "in like
cases and with like effect as the original writ-
ing"); § 1951, as amended March 24, 1874
(certified copy of duly recorded instrument
affecting realty " may also be read in evidence
with the like effect as the original, on proof, by
affidavit or otherwise, that the original is not
in the possession or under the control of the
party producing the certified copy ") ; § 1951, as
amended March 1, 1889 (so as to read: "be
read in evidence with the like effect as the
original instrument without further proof ") ;
Civ. 0. § 1207 (certain old defectively recorded
instruments affecting realty, provable by certi-
fied copy); 1855, Ord v. McKee, 5 Cal, 515
( mortgage ; original required ; but whether the
copy rejected was certified from a record does
not appear) ; 1856, Macy u. Goodwin, 6 id. 579
(deed; a statute receiving a copy with like
effect " as the originals could he if produced "
does not dispense with production of the origi-
nal) ; 1857, Gordon w. Searing, 8 id. 49 (deed;
production required ; here the plaintiff claimed
under the grantee) ; 1859, Fallon v. Dougherty,
12 id. 104 (offeror of deed to predecessor; pro-
duction required; search without showing his
own lack of possession, insafficient) ; 1859, Skin-
ker V. Flohr, 13 id. 638 (offeror not connected with
deed as grantee may account for non-production
by declaring it not within his control ; under
statute) ; 1862, Pierce v. Wallace, 18 id. 165,
170 (offeror of deed to predecessor ; loss required
to be shown by search among grantee's papers,
etc.) ; 1862, Lawrence v. Pulton, 19 id. 683, 689
(offeror of deed to his grantor made affidavit of
non-possession, but by other testimony made it
probable that his grantor had it ; held insufficient
to exempt) ; 1864, Hicks v. Coleman, 25 id. 122,
129 (grantee offering deed ; proof that it was
lost or not in his control, held sufficient, under
the statute) ; 1864, Landers v. Bolton, 26 id.
393, 413 (power of attorney, sufficiently shown
"not under the control of the party"); 1864,
Hurlbutt V. Butenop, 27 id. 50, 54 (offeror of
deed to predecessor; that he had "never had
control of the original deed and it was not then
in his power or control," sufficient ; proof of
loss or search unnecessary); 1865, McMinn v.
O'Connor, ib. 238, 243 (offeror of deed to
grantor ; under statutes of 1851 and 1860, origi-
nal need not be shown out of offeror's control,
or otherwise accounted for) ; 1866, Roberts v.
Unger, 30 id. 676, 680 (offeror's grantor's claim
and affidavit, under Possessory Act; certified
copy received, on evidence of non-possession and
search); 1866, Reading u. Mullen, 31 id. 104,
106 (married woman's recorded declaration as
sole trader; production required); 1869, Gar-
wood V. Hastings, 38 id. 216, 222 (certified copies
receivable, on proof of " loss or inability of the
party to produce the original") ; 1869, Mayo u.
Mazeaux, ib. 442, 449 (must be shown not under
party's control) ; 1874, Canfield v. Thompson,
49 id. 210, 212 (certified copy of recorded deed,
offered by successor of grantee, held " primary,"
under C. C. P. § 1893, i.e. sembte, original need
not be accounted for) ; 1875, Vance v. Kohlberg,
50 id. 346, 348 (certified copy of U. S. jjatent
recorded in the county ; original not required) ;
1877, People v. Hagar, 52 id. 171, 186 (certified
copy of private writing, original not required;
here, corporate by-laws) ; 1881, Gethin v. Walker,
59 id. 502, 506 (certified copy of deed to offeror ;
production not required); 1886, Brown v.
Griffith, 70 id. 14, 11 Pac. 500 (comparison of
C. C. P. §§ 1855, 1893, 1951 ; settled that a cer-
tified copy of a recorded deed, or the record of
the deed, is receivable only after a showing that
the original is not in the " possession or control"
of the offeror, according to § 1951 ; Canfield v.
Thompson cited as referring to transactions be-
fore the adoption of § 1951 ; intervening cases
not cited) ; 1889, Marriner v. Dennison, 78 id.
202, 214, 20 Pac. 386 (preceding case approved) ;
1894, Green v. Green, 103 id. 108, 110, 37 Pac.
188 (original required to be accounted for).
Colorado: Annot. Stats. 1891, § 444 (recorded
instrument not duly proved or acknowledged;
certified copy may be " proved or acknowl-
edged " with same effect as original, but " such
certified copy so proved " is not admissible for
any person " except upon satisfactory proof that
the original thereof has been lost or destroyed,
or is beyond his power to produce ") ; § 447 (duly
recorded instrument in writing, provable by the
record or a transcript, " upon affidavit of the
[party] desiring to use the same that the origi-
nal thereof is not in his possession or power
to produce ") ; § 838 (recorder's certified copy of
" all papers filed" and of records, admissible) ;
St. 1894, p. 53, § 6 (certified copy of certificate
of sale by trustee under trust deed, admissible) ;
1874, Sullivan v. Hense, 2 Colo. 424, 432 (statute
construed as to the affidavits necessary) ; 1889,
Coleman !'. Davis, 13 id. 98, 21 Pac. lo"l8 (proof
of loss is not necessary; the statutory require-
ment suffices).
Columbia (District): Comp. St. 1894, c. 20,
§ 33 ("deed, will, or other instrument of writ-
ing," recorded under law of place of execution,
provable by certified copy) ; c. 70, § 17, so also
c. 58, § 26 (lawfully rec6rded will, provable by
attested copy) ; Code 1901_, § 1071 (duly recorded
deed or other instrument is provable by certified
copy).
Connecticut: Gen. St. 1887, § 3895 (certified
copy of recorded tax-collector's deed, admis-
sible) ; 1808, Talcott v. Goodwin, 3 Day 264
(production not required of deeds to predecessor-
grantees; but required of grantees themselves.
1461
§ 1225
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
lowing re.spects : (1) They do not include an enumeration of the various
specific kinds of conveyances authorized to he recorded — chattel mortgages,
aud here of the grantee's assignee in bank-
ruptcy) ; 1814, Cunningham v. Tracy, 1 Conn.
252 {production by ordinary grantee of deeds to
predecessor, not required, the custom having
been for the grantee not to take his deed ; but
production required of deeds to the party him-
self, or, as here, to the ancestor of one claiming
by inheritance) ; 1815, Phelps v. Foot, ib. 387,
390 (production by indorser of deed to maker of
note, not required, as being " not in his power ") ;
1842, Clark v. Mix, 15 id. 152, 161, 174 (deed of
personalty in probate records ; production not
required); 1847, Kelsey v. Haumer, 18 id. 311,
318 (like Cunningham v. Tracy) ; 1856, Bolton
V. Cummings, 25 id. 410, 421 (general rule as
above ; but also declaring production necessary
for a deed to the opponent ; see quotation ante,
§ 1224); 1902, Cunningham v. Cunningham,
75 id. 64, 52 Atl. 318 (certified copy of deed to
defendant, admitted for plaintiff, there being no
specific objection as to the non-production of the
original).
Dehiware: Rev. St. 1893, c. 35, § 10 (county
deed-recorder's record, or certified copy, of any
instrument authorized by law to be recorded,
admissible) ; c. 83, § 14 ("the said record or an
office copv thereof shall be sufficient evidence").
Florida: Rev. St. 1892, § 1111 ("deed, con-
veyance, paper, or instrument of writing," law-
fully recorded in a public office of this State or
a county, provable by certified copy; but this
shall not prevent the Court from requiring the
original to be produced or accounted for, " if the
same shall be deemed necessary or proper for
the attainment of justice ").
Georgia: Code 1895, § 5211 (record in public
office, provable by certified copy) ; § 5212 (such
copies to be secondary only, for " such docu-
ments as by law properly remain in the posses-
sion of the party ") ; § 5219 (" if the original of
any paper properly registered is lost or de-
stroyed," it is provable by certified copy) ;
§ 3630 (on loss or destruction of original of
duly recorded deed, copy from registry admis-
sible) ; § 5673, Court Rule 42 (party's oath stat-
ing " his belief of the loss or destruction of the
original and that it is not in his possession,
power, or custody," sufficient) ; 1851, Beverly v.
Burke, 9 Ga. 440, 445 ("copy-deed" to be
"treated as the original"); 1851, Ratteree v.
Nelson, 10 id. 439, 441 (by rule of Court, the
original must be sworn to as lost or destroyed
and out of the party's power) ; 1854, Marshall
V. Morris, 16 id. 368, 372 (original to be ac-
counted for) ; 1858, Morgan v. Jones, 24 id.
155, 161 (same) ; 1858, Churchill v. Corker, 25
id. 479, 490 semble (same for a probated wUl) ;
1859, Sutton V. McLoud, 26 id. 637, 641 (origi-
nal required); 1859, Brooking v. Dearmond,
27 id. 58, 61 (same) ; 1874, Hadley v. Bean, 53
id. 685, 688 (must show loss or destruction or
failure to obtain ; here also notice to opponent
required); 1897, Woods v. State. 101 id. 526,
28 S. E. 970 (original must be accounted for) ;
1898, Hayden v. Mitchell, 103 id. 431, 30 S. E.
287 (certified copy of marriage-contract, admis-
1462
sible after accounting for original) ; 1900, Smith
V. Coker, 110 id. 650, 36 S. E. 105 (statute not
satisfied ou the facts) ; 1903, Cox v. McDonald,
— id. ^ , 45 S. E. 401 (Rule 42 of the superior
courts, providing that the party's oath of loss,
etc., shall be "a sufficient foundation" for a
copy applies only to instruments " between the
parties litigant," being in derogation of the
common-law practice ; Rule 42 and Code § 3630
coinpared).
Hawaii: CivU Laws 1897, § 1849 ("the
record of an instrument duly recorded, or a
transcript thereof duly certified," may be read
" with the like force and effect as the original
instrument").
Idaho: Rev. St. 1887, § 5998 (like Cal. C. C.
P. § 1951 ) ; § 5999 (writing itself must be pro-
duced, except when it is recorded and a certified
copy is made evidence bv statute).
Illinois : Rev. St. 18"74, c. 30, § 35 ("If it
shall appear to the satisfaction of the Court
that the original deed so acknowledged or
proved and recorded, is lost, or not in the
power of the party wishing to use it," a certi-
fied copy is admissible) ; § 36 (" Whenever upon
the trial of any cause at law or in equity in this
State, any party to said cause, or his agent or
attorney in his behalf, shall, orally in court, or
by affidavit to be filed in said cause, testify and
state under oath that the original " of any in-
strument affecting land, duly recorded, " is lost
or not in the power of the party wishing to use
it on the trial of said cause, and that to the best
of his knowledge said original deed was not in-
tentionally destroyed or in any manner disposed
of for the purpose of introducing a copy thereof
in place of the original," the record or recorder's
certified copy is admissible) ; c. 95, § 5 (chattel
mortgages, duly recorded, provable like convey-
ances of land) ; c. 109, §§ 2, 11 (so for plats of
subdivisions recorded) ; St. 1897, May 1, § 39
(certified copy of an original certificate of regis-
tered title, admissible) ; § 58 (" in the event of
a duplicate certificate of title being lost, mislaid,
or destroyed," the registrar may issue a certified
copy of the original in his office, and "such
certified copy shall stand in the place of and
have like effect " as the missing duplicate certifi-
cate) ; 1849, Irving v. BrowneTl, 11 111. 402, 415
("not in the power"; statute applied); 1851,
Newsom v. Luster, 13 id. 175, 180 (under statute
of 1845, party's affidavit is not necessary; any
kind of evidence suffices, in Court's discretion) ;
1858, Booth V. Cook, 20 id. 130 (an affidavit
in general terms that it is " not in his power "
to produce is insufficient ; diligent inquiry
and reasonable efforts to produce must be
shown in detail); 1858, Roberts i>. Haskell, ib.
59 (same); 1859, Hanson v. Armstrong. 22 id.
442, 445 (" not in the power " ; statute ap-
plied) ; 1861, Dickinson v. Breeden, 25 id. 186
(grantee's residence appearing, his deposition
should be taken as to loss, etc.); 1863, Pardee
V. Lindley, 31 id. 174 (affidavit; statute ap-
plied); 1864, Prettyman v. Watson, 34 id. 175
(statute of 1861 applied) ; 1866, Bowman v.
§§ 1177-1282]
EECOEDED CONVEYANCES.
§ 1225
deeds of realty, powers of attorney, sheriffs' deeds, and the like. (2) The
line of distinction between documents of the present class — conveyances —
Wettig, 39 id. 416, 421 (statute applied) ; 1866,
Deininger v. McConnel, 41 id. 227, 232 (aifidavit ;
statute applied) ; 1869, Newman v. Cobleigh, 52
id. 387 (uuder the statute, a showing of search
made is not necessary) ; 1873, Riehley v. Farrell,
69 id. 264 (burnt records ; loss of deeds suffi-
ciently shown) ; 1874, Dowden v. Wilson, 71 id.
485, 487 (principle applied to note and mortgage
on foreclosure); 1880, Hardin v. Forsythe, 99
id. 312, 324, 328 (proof of contents of deed not
accounted for, excluded) ; 1898, Scott w. Bassett,
174 id. 390, 51 N. E. 577 ("not in the power,"
applied); 1899, 1900, Scott v. Bassett, 174 id.
390, 51 N. E. 577, 57 id. 835 (sufficiency of
party's affidavit) ; 1902, Glos v. Gary, 194 id.
214, 62 N. E. 555 (affidavit held sufficient) ;
1902, Scott V. Bassett, ib. 602, 62 N. E. 914
(collective affidavit held deficient).
Indiana: Rev. St. 1897, § 471 (record of
" deeds and other instruments," provable by
keeper's attested copy under seal) ; § 3435
(certain deeds executed more than 20 years
before date of Act [Feb. 28, 1857] and recorded
in wrong county, provable by certified copy) ;
§ 76()0 (recorded apprentice's indenture, prov-
able by certified copy) ; § 3439 (same for re-
corded power of attorney to convey laud) ;
§§ 5750, 5756, 5768 (same lor deeds re-recorded
on change of county boundaries or creation of
new county) ; § 8396 (same for certain re-
recorded deeds) ; 1838, Bowser v. Warren, 4
Blackf . 522. 527 (original required only " if the
deed is made to the party who relies upon it, or
may be presumed from its character to be in
his keeping"); 1839, Eucker v. M'Neely, 5 id.
123 (grantee offering record; admitted after
proof of deed's loss); 1839, Dixon v. Doe, ib.
107 (non-grantee offering record of deed; ad-
mitted without accounting for original); 1840,
Doe V. Holmes, ib. 319 (same); 1842, Foresman
V. Marsli, 6 id. 285 (general principle repeated) ;
1843, Daniels v. Stone, ib. 450 (same) ; 1850,
Pierson r. Uoe, 2 Ind. 123 (deeds of plaintiff's
title; copies allowed) ; 1860, Lyon v. Perry, 14
id. 515 (original not required) ; 1860, Morehouse
V. Potter, 15 id. 477 (record-copy of mortgage;
expressly decided that under the statute it is im-
material whether the original is or is not in the
hands of the offeror); 1865, Winship o. Clen-
denning, 24 id. 439, -143 (same); 1872, Bowers
V, Van Winkle, 41 id. 432, 435 (original not re-
quired) ; 1874, Patterson v. Dallas, 46 id. 48
(same) ; 1876, Abshire v. State, 53 id. 64, 65
(same); 1888, State v. Davis, 117 id. 307, 30
N. K. 159, semble (unrecorded deed; original re-
quired) ; 1891, Adams v. Buhler, 131 id. 66, 30
N. E. 883 (meclianic's lien notice recorded in
the wrong book; original required).
Iowa: Code 1897, § 4630 ("any instrument"
recorded in public office by authority of law is
provable by the record or duly authenticated
copy, " whenever, by the party's own oath or
otherwise, the original is shown to be lost, or
not belonging to the party wishing to use the
same, nor within his control") ; 1867, Williams
V. Heath, 22 la. 519 (original to be accounted
for ; the fact that the deed is to another than
the offeror does not of itself suffice) ; 1868,
Ackley v. Sexton, 24. id. 320 (statute applied);
1871, Byington v. Oaks, 32 id. 488 (same) ;
1873, Scarf v. Patterson, 37 id, 503, 513 (same) ;
1876, McNichols t. Wilson, 42 id. 385, 393
(possession by offeror's brother, within control
of Court, but not subposnaed or requested to
produce; copy allowed); 1876, Ingle v. Jones,
43 id. 286, 290 (offeror not in control, on the
facts) ; 1879, Olleman v. Kilgore, 52 id. 38, 2
N. W. 612 (offeror not in control, on the facts) ;
1881, Bixby v. Carskaddon, 55 id. 533, 537, 8
N. W. 354 (deeds executed to third persons;
Court may presume them not in offeror's con-
trol) ; 1 884, Jaffray v. Thompson, 65 la. 323,
325, 21 N. W. 659 (excluding copy of mortgage
not accounted for); 1886, Laird v. Kilbourne,
70 id. 83, 85, 30 N. W. 9 (deed shown unavail-
able on the facts) ; 1886, State r. Penny, ib. 190,
30 N. W. 561 (chattel mortgage to prosecuting
witness ; that he did not have possession, in-
sufficient) ; 1890, Collins v. Nalleau, 79 id. 626,
629, 43 N. W. 284, 44 N. W. 904 (re-record in
another county from certified copy ; original
instrument need not be accounted for); i890,
Kreuger v. Walker, 80 id. 733, 735, 45 N. W.
871 (deeds sufficiently accounted for); 1891,
Rea's Assignment, 82 id. 231, 234, 48 N. W. 78
(mortgage sufficiently accounted for) ; 1891,
Kenosha Stove Co. v. Shedd, ib. 540, 545, 48
N. W. 933 (conveyances not in offeror's control;
copies sufficient) ; 1894, McCoUister i: Yard, 90
id. 621, 63.3, 59 N. W. 447 (deed of adoption;
not shown unavailable on the facts); 1898,
Independent School Dist. v. Hewitt, 105 id. 663,
75 N. W. 497 (statute applied ; original to be
accounted for); 1900, Hall v. Cardell, 111 id.
206, 82 N. W. 503 (original sufficiently shown,
not in party's control).
Kansas: Gen. St. 1897, c. 97, § 2 (record of
" any instrument authorized to be recorded,"
admissible if '* the original is not in the posses-
sion or under the control of the party desiring
to use the same ") ; § 3 (same for certified copy
of any paper lawfully filed or recorded in pub-
lic office) ; 1876, Williams v. Hill, 16 Kans. 23
(statutory showing sufficient, as being less tlian
tlie common-law requirement) ; 1890, Stratton
V. Hawks, 43 id. 538, 23 Pac. 591 (the proof of
the original's not being in possession or under
control is sufficient if " to the satisfaction of the
Court"); 1891, McLean o. Webster, 45 id. 644,
26 Pac. 10 (deed to adverse parties, presumed
not in the possession or control of the propo-
nent) ; 1893, Eby K. Winters, 51 id. 777, 783, 33
Pac. 471 (delivery to opponent, sufficient to ex-
empt) ; 1901, Neosho V. I. Co. v. Hannum, 63
id. 621, 66 Pac. 631 (statute applied).
Kentuck)/ :_ Stats. 1899, § 519 ("certified
copies of all instruments legally recorded shall
be prima facie evidence") ; § 1638 (instrument
duly registered out of the TJ. S., provable by
the keeper's attested copy) ; 1814, Gholson v.
Lefevre, Litt. Sel. C. 191 (original not required
of Virginia grant, under statute); 1814, Wells
14(53
§ 1225
DOCUMENTAEY OEIGINALS.
[Chap. XXXIX
and those of the classes already dealt with (§§ 1215-1222) — official docu-
ments and judicial records — is sometimes obscure ; certain provisions under
V. Wilson, 3 Bibb 261, 265 (copy admissible
from one not a party to the deed ; other cases
left undetermined) ; 1815, Tebbs v. White, 4 id.
42 (copy admissible in all cases ; here offered
by the vendee of the grantee) ; 1820, Hood v.
Mathers, 2 A. K. Marsh. 553, 558 (original not
required) ; 1821, Brooljs v. Clay, 3 id. 545, 548,
seinble (same) ; 1832, Griffith v. Huston, 7 J J.
Marsh. 385, 386 (copy offered by grantee; orig-
inal required) ; 1838, King v. Mims, 7 Dana
267, 269 (Virginia deed; original not required) ;
1853, Oickerson v. Talbot, 14 B. Monr. 60, 67
(original required; but here the deed had not
been legally recorded).
Louisiana : in the statutes of this State, it is
somewhat difficult, for those not familiar with
the tlieory of the French law and its phrase-
ology, to discriminate between the provisions
bearing on the present principle and those
dealing vrith the rules of certified copies to
prove the original's execution ; the statutes
have therefore been set out once only, under
the Latter head, post, § 1651; compare also the
cases ou notarial acts, post, § 12+0. (I) The
following seem to apply Civ. C. § 2258: 1827,
Coleman v. Breaud, 6 Mart. n. s. 407, 408
(production required ; here of a Tennessee
deed) ; 1829, Lewis v. Beatty, 8 id. 287, 289
(same; Georgia deed); 1839, Johnston v. Cox,
13 La 536, 537 (statute applied) ; 1843, Wells
V. McMaster, 5 Kob. La. 154, semble; original
required); 1851, Winston v. Prevost, 6 La. An.
164 (deed; ioss not sufficiently shown); 1854,
Hall V. Acklen, 9 id. 219, 221 (warrant; loss
sufficiently shown) ; 1857, Peace v. Head, 12 id.
582 (instrumsnt sufficiently shown to be lost) ;
185S, Lawrence v. Burris, 13 id. 611 (deed;
loss not sufficiently shown) ; 1878, Sharkey v.
Bankston, 30 id. 891 (judgment; loss suffi-
cieutlv shown). (2) The following apply Civ.
C. §'2259: 1847, Sexton v. McGill, 2 La.
An. 190, 195 (original to be accounted for) ;
1848, Lacey u. Newport, 3 id. 227 (statute .ap-
plied) ; 1853, Beebe «. McNeill, 8 id. 130 (§ 2259
does not apply to destroyed instruments) ; 1859,
Andrew v. Keenan. 14 id. 705 (statute applied ;
Civ. C. § 2279); 1877, Tickuor v. Calhoun, 29
id. 277 (same). (3) The following apply Civ.
C. § 2268 : 1893, Chambers v. Hauey, 45 La. An.
447, 450, 12 So. 621 (on the theory of a copy of
a copy, production required). (4) The following
require the production of an original not being
a "public act": 1848. Leggo v. N. O. C & B.
Co., 3 La. An. 138; 1856, Bovldn v. Wright, 11
id. 531, 533; 1857, Knight v. Knight, 12 id. 396;
1884, Hotard « R. Co., 36 id. 450, 451.
Afaiae : Pub. St. 1383, c. 82, § 110 (in actions
affecting realty, attested copies of a recorded
deed are admissible, when the offeror is not eran-
tee nor heir nor " justifies as servant " thereof) ;
1831, Woodman v. Coolbroth, 7 GreenL 181,
185 (grantee rule, as in Massachusetts; even
thougli the original was in fact in the posses-
sion of the offeror of the office-copy, production
not required of non-grantee) ; 1833, Knox u. Sil-
loway, 1 Fairf. 201, 216 (approving the preced-
1464
ing case) ; 1834, Kent v. Weld, 2 id. 459 (same;
but this, semble, is allowable, under Court Rule
34, only " in actions touching the realty," " wheu
the party offering such office-copy in evidence is
not a party to the deed, nor claims as heir, nor
justifies as servant of the grantee or his heirs " ;
not applicable, therefore, to a recorded power of
attorney in an action for services rendered to an
alleged agent of the defendant) ; 1901, Egan v.
Horrigan, 96 Me. 46, 51 Atl. 246 (grantee rule
applied).
Maryland: Pub. Gen. L. 1888, Art. 35, § 38
(any instrument required, by law of State or
country where executed, to be registered, and
lawfully registered, is provable by the keeper's
certified copy) ; § 51 (land-office commissioner's
certified copy of extract of deed transmitted by
court clerk, admissible if the original deed and
record are lost or destroyed) ; 1800, Gittings v.
Hall, 1 H. & J. 14, 18 (copy of a deed not requir-
ing enrolment, not receivable without express
proof of loss, etc.) ; 1804, Cheney v. Watkins, ib.
527, 532 (same).
Massachusetts : Pub. St. 1882, c. 82, § 7, Rev.
L. 1902, c. 78, § 4 (cemetery conveyances re-
corded by the corporation, provable by certified
copy lilce registered deeds) ; Rev. L. 1902, c. 128,
§ 46 (the owner's duplicate certificate of regis-
tered title, and a certified copy of the original
certificate on file, is admissilile) ; § 104 (" if a
duplicate certificate is lost or destroyed, or can-
not be produced by a grantee, heir, devisee, as-
signee, or other person who applies for the entiy
of a new certificate to him or for the registration
of any instrument," a new duplicate may lie
issued, which shall "thereafter be regarded as
the original duplicate for all the purposes of this
chapter"); 1828, Eaton v. Campbell, 7 Pick. 10
(grantee need not produce originals of deeds
prior to that made to himself; see quotation
ante, § 1224) ; 1829, Poignand v. Smith, 8 id.
272, 277 (mortgage belonging to an assignee;
original to be accounted for) ; 1832, Burghardt
V. Turner, 12 id. 534, 538 (rule of Eaton v.
Campbell applicable to a deed made to a com-
mon ancestor, tliere being no reason to attribute
possession of it to one partv rather than the
otiier) ; 1833, Scanlan v. Wright, 13 id. 523, 527
(rule applicable even where the prior grantee is
within the jurisdiction; production is reiiuired
only where the person proving the deed is liim-
self the grantee or some one who must be pre-
sumed to have the deed) ; 1834, Ward v. Fuller,
15 id. 185, 187 (general principle as above);
1853, Blanchard t-. Young, 11 Cnsh. 341. 345
(same: applied, in an issue of a conveyance in
fraud of the defendant's creditors, to the defend-
ant's deeds to tliird persons); 1854, Com. /■.
Emery, 2 Gray 80 (charge of being a common
seller; to prove tlie defendant's ownership of
the premises, the district attorney offered a
registrar's copy of a deed to the defendant;
excluded, the original being obtainable by notify-
ing tlie opponent; quoted ante. § 1224); 1854,
Bourne v. Boston, ib. 494 (following Com. i>.
Emery; to prove the plaintiff a resident of
1177-1282]
EECORDED CONVEYANCES.
§ 1225
those heads might by another interpretation belong equally or better under
the present subject. (3) The proof of Government grants or patents of land
Boston, copies of deeds in which the plaintiff
was grantee, offered by the defendant, were ex-
cluded) ; 1856, Pierce v. Gray, 7 id. 67 (rule
applied to mortgages of personalty recorded);
1863, Barnard v. Crosbv, 6 All. 327,'331 (same) ;
1863, Thacher v. Phiuuey, 7 All. 146, 148 (rule
applied to admit a copy of a deed to the defend-
ant's grantor, offered by the plaintiff) ; 1870,
Samuel v. Borrowscale, 104 Mass. 207, 209
(rule applied) ; 1870, Stockwell v. Silloway, 105
id. 517 (same) ; 1878, Draper v. Hatfield, 124 id.
53, 56 (copies of deeds to the opponent, excluded,
because no uotice had been given).
Michigan : Comp. L. 1897, §§ 8964, 8965, 8990,
8995, 8996, 9006, 9040, 9043, 9046, 9047, 9050,
9052, 1271 ("conveyances and other instru-
ments " lawfully recorded are provable by the
register's certified copy) ; 1863, Brown v. Cady,
10 Mich. 535, 538 (record not admissible unless
lawfully recorded) ; 1889, People v. Swetland,
77 id. 53, 56, 43 N. W. 779 (forgery of a dis-
charge of mortgage ; record not admissible till
original accounted for, "when the question of
the forgery of the original instrument is in issue
either in a criminal or civil suit ").
Minnesota : Gen. St. 1894, § 5759 (instrument
authorized to be recorded and duly acknowl-
edged or proved, provable by record or register's
certified copy) ; §§ 4135, 4151 (certified copy,
by clerk or other proper oflBcer, of chattel mort-
gage or conditional sale, admissible like the
original or copy on file) ; 1866, Winona v. Huff,
11 Minn. 119, 127 (map of dedication recorded;
loss of record and of original map required to
be shown) ; 1885, Gaston v. Merriam, 33 id. 271,
275, 22 N, W. 614 (loss of original snfiiciently
shown).
Mississippi: Annot. Code 1892, § 1777 (copies
of record of "all instruments of writing which
by the laws of any. foreign country may be ad-
mitted to record upon acknowledgment or proof
thereof," duly certified, admissible; but if exe-
cution is disputed on oath, "the original shall
be produced or its absence accounted for before
such copy shall be read in evidence"); § 1778
(same for instrument " required or permitted to
be" recorded in U. S. State or 'ferritory or
District of Columbia) ; § 1779 (same for instru-
ment " required or permitted to be" recorded in
this State) ; 1844, Haydon v. Moore, 1 Sm. & M.
605 (original statute, requiring production of
deed, applied) ; 1845, Chaplain v. Briscoe, 5 id.
198 (same); 1846, Harmon v. James, 7 id. Ill,
118 (same) ; here a statute of 1844, abolishing
the necessity of production, as above, became
applicable in the later cases; 1848, Thomas v.
Bank, 9 Sm. & M. 201 (original of a document
not required to be recorded must be produced) ;
1860, Davis v. Rhodes, 39 Miss. 152, 156 (same,
for document not recorded according to law).
Missouri : Rev. St. 1899, § 933 (duly recorded
instruments " conveying or affecting real estate,"
provable by certified copy when "it shall be
shown to the Court by the oath or affidavit of
the party wishing to use the same, or of any one
knowing the fact, that such instrument is lost
or not within the power of the party wishing to
use the same ") ; § 941 (duly recorded instru-
ments dealing with military-bounty lands in
this State, executed out of the State but in the
U. S., provable by certified copy " upon proof
of the loss or destruction of the original instru-
ment"); §3115 (certain recorded deeds, made
admissible by lapse of time, etc., nnder Stats.
§ 3147, infra, provable by certified copy when
the origirial " has been lost or destroyed or is
not iu the power of the party who wishes to use
it") ; § 3116 (so also for transcripts of certain
ancient deeds, where the original " lias been lost
or destroyed"); § 3147 (certain ancient docu-
ments recorded 30 years before March 28, 1 874,
provable by certified copy if it appears " by oath
or affidavit of the party wishing to use the
same, or of any one knowing tlie fact, that such
instrument is lost or not within the power of
the party wishing to use the same ") ; § 3128
(any " bond, contract, or other instrument," for
which provision for recording has been made,
provable by certified copy when the original is
"lost or not within the control of the party
wishing to use the same"); § 3142 (certified
copy of duly recorded marriage contract, admis-
sible, when the' original " is lost or is not in the
power of the party wishing to use it ") ; §§ 3107,
3109 (conveyances, grants, records, etc., under
French or Spanish government, deposited with
recorder of land-titles or county recorder, prov-
able by his certified copy "with like effect as
the original"); § 3110 (when it appears that
the original of such documents, after deposit
and record, "cannot be found therein, or has
been lost or destroyed, or that neither the orig-
inal nor a duly certified copy thereof can be
obtained by the parties wishing to use it, a copy
of the record of such original, duly certified by
the officer having charge of such record, shall
be received"); § 3115 (where certain instru-
ments not so recorded as ordinarily to be ad-
missible are made admissible by lapse of time,
etc., a, certified copyis admissible if the original
"has been lost or destroyed, or is not iu tlie
power of the party who wishes to use it " ) ;
§3116 (where deed has been recorded more
than 20 years, though not duly acknowledged,
etc., and has been later duly proved and read
on triaj, then after loss or destruction of orig-
inal, a copy, preserved in bill of exceptions
contained in transcript filed in certain courts,
is admissible when certified under seal of clerk
of proper court ) ; § 5074 ( certified copy of
recorded contract of boatman's hire, admissible) ;
§ 8957 (county recorder's certified copy of re-
corded plat, admissible) ; 1851, Walker v. New-
house, 14 Mo. 373, 377 (deed to a third person ;
"in most cases," perhaps, efforts to procure
would be required : here not, on the facts) ;
1851, Bosworth v. Bryan, ib. 575, 577 (deed to
offeror's predecessor; copy allowed on proof of
loss) ; 1858, Barton v. Murrain, 27 id. 235, 238
(ordinarily, if original is presumed to be iu a
third person's hands, not even the preliminary
oath is necessary ; if the deed deals with military-
1465
§ 1225
DOCUMENTAET ORIGINALS.
[Chap. XXXIX
is controlled by the present general principle, if it is applicable ; but whether
it is applicable depends upon the theory of substantive law as to which docu-
bounty land and is otherwise insufficiently re-
corded, then loss must be shown) ; 1867, Attwell
V. Lynch, 39 id. 519 (original not accounted for;
copy excluded) ; 1867, Boyce v. Mooney, 40 id.
104 (deed to trustees-plaintiffs under a marriage-
contract ; original not presumed out of their
power) ; 1870, Christy v. Kavanagh, 45 id. 375
(loss not sufficiently shown on the facts ; trial
Court's discretion should control) ; 1872, Strain
V. Murphy, 49 id. 337, 340 (original sufficiently
accounted for) ; 1872, Crispen v. Haniiavan, 50
id. 415, 418 (military-bounty land; loss or de-
struction must be shown) ; 1874, Totten v. James,
55 id. 494, 496 (transfer of military-bounty land
made in conformity to home law ; original must
he shown lost or destroyed) ; 1875, Tully v.
Canfield, 60 id. 99 (overruling the preceding
case ; original need not be shown lost or de-
stroyed; except for transfers made in another
State according to its law) ; 1877, Sims v. Gray,
66 id. 613, 615 (administrator's deed in offeror's
control; certified copy excluded) ; 1880, Crispen
v. Hannavan, 72 id. 548, 554 (certified copies of
deeds defectively acknowledged but recorded
30 years; original must be shown lost or de-
stroyed, by implication of the statute); 1882,
Boogher v. Neece, 75 id. 383, 385 (deed properly
acknowledged out of the State but in conform-
itj' to home law ; sufficient to show original not
within offeror's power) ; 1885, Addis v, Graham,
88 id. 197, 202 (deed shown lost) ; 1887, Dollar-
hide V. Parks, 92 id. 178, 186, 5 S. W. 3 (deed
shown lost) ; 1887, Hammond v. Johnston, 93
id. 198, 207, 6 S. W. 83 (under Stats. § 2395,
tlie original of a recorded sherifi's deed need
not be accounted for) ; 1893, Frank v. Reuter,
116 id. 517, 521, 22 S. W. 812 (deed mu.st be
accounted for); 1893, Hunt v. Selleck, 118 id.
588, 593, 24 S. W. 213 (same); 1898, Cazier ».
Hinchey, 143 id. 203, 44 S. W. 1052, semhie
(widow proving husband's chain of title ; loss
must be shown); 1901, Stout v. Eigney, 46
C. C. A. 459, 107 Fed. 545, 551 (certified copy
of deed to military-bounty land taken in Illinois
according to Missouri law, admitted ; following
Tully V. Canfield, snpra, proof that the original
was not in the party's power sufficing under
Rev. St., § 933, without proof of loss or destruc-
tion) ; 1903, Orchard «. Collier, 171 Mo. 390, 71
S. W. 677 (original not shown on the facts to
be lost or out of the party's power).
Montana: C. C. P. 1895, § 3131 (like Cal.
C. C. P. § 1855) ; § 3241 (like Cal. C. C. P.
§ 1951, as amended by St. 1889, adding, for the
class of instruments, "and every instrnment
authorized by law to be filed or recorded in the
county clerk's office"); 1882, McKinstry v.
Clark, 4 Mont. 370, 371 (mining location; certi-
fied copy admitted without requiring loss to
be shown); 1886, Garfield M. & M. Co. v.
Hammer, 6 id. 52, 64, 8 Pac. 153 (certified copy
of recorded mining declaration and of deed, ad-
missible without accounting for original) ; 1889,
Flick V. Gold Hill & L. M. M. Co., 8 id 298,
304, 20 Pac. 807 (principle of preceding cases
approved) ; 1894, Manhattan M. Co. u. Swete-
1466
land, 14 id. 269, 36 Pac. 84 (originals required;
repudiating the two earlier rulings above ; com-
pare the California rulings supra).
Nebraska: Comp. St. 1899, §4105 (record of
deed or certified copy, admissible " whenever, by
the party's oath or otherwise, the original is
known to be lost, or not belonging to the party
wishing to use the same, nor within his con-
trol ") ; 1880, Delaney v. Errickson, lONebr. 492,
500, 6 N. W. 600 (deed to ofieror'a grantor;
presumed not in his possession, and need not be
accounted for) ; 1888, Fremont E. & M. V. R.
Co. tf. Marley, 25 id. 138, 145, 40 N. W. 948
(use of record-copies to establish title is in dis-
cretion of trial Court) ; 1889, Hall v. Aitkin, ib.
360, 363, 41 N. W. 192 (mortgage filed; pro-
duction not required); 1889, Buck v. Gage, 27
id. 360, 41 N. W. 192 (deeds not to the offeror;
statute presumed satisfied by proof to the Court
below) ; 1892, Rupert v. Penner, 35 id. 587, 591,
53 N. W. 598 (in trial Court's discretion to re-
quire production of original deeds, in ejectment
suits).
Nevada: Gen. St. 1885, § 3449 (original need
not be produced " when the original has been
recorded, and a certified copy of the record is
made evidence by statute ") ; § 2598 (" convey-
ance, or other instrnment conveying or affecting
real estate," duly recorded, provable by certified
copy whenever " it shall be shown to the Court
that snch conveyance or instrument is lost, or
not within the power of the party wishing to
use the same").
New Hampshire : Pub. St. 1891, c. 27, § 18;
c. 43, § 44 (duplicate certified copies of mutilated
recoris may be used as originals without show-
ing loss of the latter) ; c. 224, § 23 (certified
copy by proper officer of any document required
by law to be recorded in a public office, admissible
" where the originals would be evidence " ) ;
1831, Southerin ;•. Mendum, 5 N. H. 420, 428
(grantee rule, following Eaton v. Campbell,
Mass.; applied to powers of attorney); 1840,
Pollard V. Melvin, 10 id. 554 (original dis-
pensed with " only in a chain of title, where
due proof has first been made of the execution
of the last conveyance" ; rule not applicalde to
third person's title); 1840, Loomis v. Bedel, 11
id. 74, 86 (same) ; 1843, Homer i-. Cilley, 14 id.
85, 98 (same) ; 1844, Lyford v. Thurston, 16 id.
399, 404 (same ; the rule held to cover copies of
deeds in the chain of the opponent's as well
as of the proponent's title); 1845, Andrews v.
Davison, 17 id. 413, 415 (same; applicable not
onlj' in a real action, but in a suit upon a deed-
covenant ; in short, " in all cases where the con-
veyance is not immediately to himself, but he is
in privity with the title conveyed by the deed ") ;
1844, Clough V. Bowman, 44 id. 504, 513 (rule
held to admit an office-copy of a recorded deed
not in the chain of title, but referred to by one
of such deeds for a description) ; 1850, Forsaith
V. Clark, 21 id. 409, 422, 424 (general principle
affirmed) ; 1859. Farrar v. Fessenden, 39 id.
268, 276 (newspaper notice of foreclosure; "an
examined copy of any instrument thus recorded "
§§ 1177-1282]
EECORDED CONVEYANCES.
1225
ment constitutes the grant, i. e. the patent delivered to the grantee or the
official record retained; the question thus raised — namely, the question
is admissible " witliout proof of the original") ;
1861, Wendell v. Abbott, 43 id. 68, 73 (grantee
rule; general principle affirmed); 1879, Smith
V. Cushman, 59 id. 27 (general principle of
grantee rule affirmed).
New Jersey : Gen. St. 1896, " Conyeyances,"
§§ 15, 29, 31 (deeds duly recorded within 10
years from date, provable by certified copy with-
out production, unless opponent gives 10 days'
notice before trial, and then proof must be
made that " the original hath been lost, or unin-
tentionally destroyed, or that after having made
diligent search and inquiry such party hath been
unaljle to find said original " ; the Court to deter-
jniue " according to the circumstances and situ-
ations of the parties, whether such diligent search
and inquiry has been made"); § 90 (deed re-
corded not within 10 years, provable by record
or certified copy, if the original is "destroyed
or lost or taken out of the office " where it was
kept by law) ; " Evidence," § 58 (document
recorded in foreign State, provable by exem-
plified copy of record, if so provable in that
State) ; 1826, Fox v. Lambson, 8 N. J. L. 275,
280 (" the record or registry of a deed or other
instrument is but a copy and presupposes an
original " ; here requiring the original of a
manumission certificate to be accounted for) ;
1893, Chase v. Caryl, 57 id. 545, 31 Atl. 1024
(mortgage recorded in New York under statute
making certified copy evidence, provable in New
Jersey by certified copy).
Xno Mexico: Comp. L. 1297, § 3965 ("all
writings conveying or affecting real estate,"
when duly registered, are provable by certified
copy when it is " proved to the Court that said
writing is lost, or that it is not in the hands of
the party wishing to use it"); § 2361 (duly
recorded chattel mortgage or affidavit, provable
by recorder's certified copy when " it is shown
to the Court by the oath or affidavit of the party
wisliing to use tlie same, ... or either of them,
or of any one knowing the fact, that such mort-
gage or affidavit is lost or not in the posse.ision
of the party wishing to use the same, or either
of them").
New York: C. C. P. 1877, § 935 (dulyrecorded
conveyance, provable by certified copy); § 936
(same for any instrument, except bill, note, or
will); § 945 (sale, etc., of ves.sel recorded in
U. S. customs' office, after due proof, provable
by certified copy) ; §§ 946, 947 (conveyance of
realty in another U. S. State or Territory,
provable by custodian's certified copy under
Seal, if recorded and authenticated according
to the law of such State, etc., and if "original
cannot be produced"); § 957 (certified copies
must state that the original has been compared,
and the whole correctly transcribed) ; Laws
1837, c. 150, § 27 (recorded mortgage with
State loan-commissioners, provable, if lost, by
attested copy) ; Laws 1844, c. 326, § 2 (similar,
for re-recorded copy); 1829, Jackson v. Bice,
3 Wend. 180, 183 (original need not be ac-
counted for); 1837, Van Cortlandt v. Tozer, 17
id. 338, 340 (same).
VOL. II. — 30
1467
North Carolina: Code 1883, § 1251 (instrument
required or allowed to be registered may be
proved by registry or certified copy, " although
the party offering the same shall be entitled to
the possession of the original and shall not
account for the non-production thereof," unless
by Court order made " upon affidavit suggesting
some material variance from tlie original in such
registry or other sufficient grounds, such party
shall have been previously required to produce
the original"; see also §§ 12.53, 1263, 1337);
§ 1344 jdeed by inhabitant of other State or
Territory, of domestic property, provable by copy
duly certified, if original " cannot be obtained
for registration" in the proper county); 1796,
Park V. Cochran, 1 Hayw. 410 (an office copy of
a deed to the plaintiff, excluded, unless he ac-
counted for the original) ; 18.34, Smith t). Wilson,
1 Dev. & B. 40 (grantee offering a copy ; original
required ; here a statute of 1 846 intervened to
excuse production conditionally) ; 1852, Burnett
V. Thompson, 13 Ired. 379 (the registration of
leases for years not being required, a copy from
the registry does not dispense with the produc-
tion of the original) ; 1854, Bohanan v. Shelton,
1 Jones L. 370 (statute applied to a bond to
make title); 1893, Mitchell v. Bridger, 113
N. C. 63, 71, 18 S. E. 91 (contract to offeror's
predecessor ; original not required) ; 1902, Rat-
liff V. Ratliff, 131 id. 425, 42 S. E. 887 (statute
applied).
North Dakota: Rev. C. 1895, § 5696 ("every
instrument conveying or affecting real prop-
erty," provable by record or certified copy of
record, " on proof by affidavit or otherwise that
the original is not in the possession or under the
control of the party producing such record or
copy"); § 3597 ("the proof, recording, and
deposit [of instruments under Code §§ 3565,
3579, 3581, and 3582] do not entitle the instru-
ment, or the record thereof, or the transcript of
the record, to be read in evidence ") ; St. 1901,
c. 145 (amending so that the record or a cer-
tified copy of " all instruments entitled to
record" may be "read in evidence without
further proof"); 1901, American Mge. Co. v.
Mouse River L. S. Co., 10 N. D. 290, 86 N. W.
965 (statute applied).
Ohio: Rev. St. 1898, §§ 4132 (2), 4143, 4156
(recorder's certified copy of a recorded power
of attorney, " deed or other instrument of writ-
ing," and chattel mortgage, admissible) ; § 3322
(recorder's certified copy of grant of way or
easement to railroad, admissible) ; 1833, Burnet
V. Brush, 6 Oh. 32 (under the original recording
act of 1820, the original was not required to be
produced except where it was a deed from the
offeror's immediate grantor ; under the absolute
terms of the act of 1831, held, that even this
exception disappeared) ; 1839, Livingston v.
M'Donald, 9 id. 168 semble (same) ; 1875, Kil-
bouru V. Fury, 26 Oh. St. 153, 161, semble
(original must be accounted for).
Oklahoma: Stats. 1893, § 1621 ("all deeds,
agreements, writings, and powers of attorney,"
duly recorded, provable by record or certified
§ 1225
DOCUMEJSTTAEY ORIGINALS.
[Chap. XXXIX
which document is the legal original — is the chief matter of controversy
and complicates most of the cases, and is dealt with elsewhere {post, § 1239).
transcript, " upon affidavit or proof of the party
desiring to use the same that the original thereof
is not in his possession or power to produce ") ;
§ 426'2 ("all papers authorized or required to
be filed or recorded in any public office," prov-
able by certified copy " when such original is
not in the possession or under the control of the
party desiring to use the same") ; § 4278 (records
of public officers, admissible ; " and when any
such record is of a paper, document, or instru-
ment authorized to be recorded, and the original
thereof is not in the possession or under the
control of the party desiring to use the same,
such record shall have the same effect as the
original"); § 6130 (proof, recording, and de-
posit at registry do not entitle the record or a
transcript to be read in evidence) ; St. 1897, c. 8,
§ 25 (all instruments affecting real estate and
duly recorded are provable by certified copy,
" in all cases where copies or other instruments
might lawfully be used in evidence," and when
not requiring record, by copy verified by oath or
affidavit).
Oregon : C. C. P. 1892, § 3028 (record or certi-
fied transcript of duly recorded conveyance, ad-
missible "with like force and effect as the origi-
nal coaveyance") ; § 691, par. 4 (like Cal. C. C.
V. § 185.5, par. 4) ; St. 1903, p. 17 (for deeds of
land, duly executed in a foreign country and
recorded here, the county clerk s certified copy
shall " have the same effect as the original ").
Pennsylvania : St. 1715, P. & L. Digest, Deeds
88 (certified copies under seal of deeds duly
recorded, receivable "as the original deeds
themselves ") ; St. 1870, ib. 68 (same for land
in more than one county) ; St. 1841, ib. 92 (cer-
tain old unrecorded deeds, semble, to be similarly
provable if recorded before a certain time) ;
St. 1828, ib. Evid. 30 (deeds duly recorded in
land-office, though not in proper county, provable
by exemplification) ; St. 1893, ib. Deeds 77
(exemplified copy admissible, for sheriffs' deeds
recorded with the Court of Common Pleas) ;
St. 1853, ib. Deeds 162, 163 (mortgage of coal-
mining rights ; certified copy of recorded instru-
ment, when original is lost, receivable condi-
tionally) ; St. 1887, ib. Deeds 178 (certified
copies of recorded mortgages, etc., of iron
ore and other specified personalty receivable) ;
St. 1834, ib. Evid. 10 (record or exemplifica-
tions of papers lawfully recorded, receivable) ;
St. 1846, ib. Deeds 76 (record or certified
copies of duly recorded Commonwealth patents,
sheriffs', coroners', marshals', and treasurers'
deeds, and deeds under decree of Court, receiv-
able) ; St. 1849, ib. Evid. 17 (same for deeds of
county commissioners); St. 1849, ih. Evid. 18,
Deeds 117 (same for assignments of mortgages
and attorney-powers authorizing satisfaction of
mortgages) ; St. 1828, St. 1866, St. 1850, ib.
Evid. 19, Deeds 80-82 (duly recorded written
discharges of " any legacy or recognizance
charged upon lauds " in the State ; copies under
recorder's seal, receivable; also other specified
releases to executors, etc.) ; St. 1885, ib. Evid.
25 (letters of attorney relating to personalty.
1468
duly recorded ; exemplification receivable) ; St.
1854, 1864, ib. Deeds 79 (letters of attorney re-
lating to personalty, duly made abroad before a
U. S. officer or a notary, and here recorded, re-
ceivable, as also an exemplification, when the
original is lost ; also affidavits before a proper
officer, duly certified, in another domestic State) ;
1810, Carkhuff v. Anderson, 3 Binn. 4, 7, 9 (copy
allowable, under a statute by which the original
deed was kept in the recording office); 1811,
Vickroy v. McKnight, 4 id. 204, 208 (here the
deed was not properly proved for registry by
the required two witnesses; "if a deed is re-
corded without the authority of law, a copy of
the record is no evidence ") ; 1857, Curry v.
Raymond, 28 Pa. 144, 149 (mortgage; production
not required).
South Carolina: St. 1731, Quit Rents, § 30
(record of all grants in auditor-general's office
and " all grants and deeds duly proved before a
justice of the peace according to the usual
method, and recorded," and also attested copies
thereof, " shall be deemed to be as good evidence
in the law and of the same force aud effect as
the original would have been if produced ") ;
St. 1803, Gen. St. 1882, c. 86, § 2224, R. S. 1893,
§ 2360, Code 1902, § 2895 (certified copy of
grant of land from this State or the State of
North Carolina, receivable on oath that "the
original grant is lost, destroyed, or out of his,
her, or their power to produce," and that the
offeror has not "destroyed, mislaid, or in any
way willingly previous to that time " put it so
out of his power with the intent to produce an
office-copv"); St. 1843, ib. § 2225, R. S. 1893,
§ 2361, Code 1902, § 2896 (certified copy of
recorded deed, receivable, "subject to the same
rules " as in the preceding section, and on ten
days' notice) ; 1795, Purvis v. Robinson, 1 Bay
493 (under the early statute above quoted, held
that the loss of the original must still be shown ;
see a careful criticism by the reporter in a note
to Peay v. Picket, post, and the quotations ante,
§ 1224); 1803, Turner v. Moore, 1 Brev. 236
(slight evidence of loss sufficient) ; 1807, Rosa-
mond «. M'Hwain, 2 id. 132 (copy of a grant
alone, received under the statute, without copy
of the plat annexed ; Trezevant, J., diss., be-
cause at common law production would Iiave
been necessarv. and the statute was not strictly
followed) ; 1821, Dingle v. Bowman, 1 McC. 177
(loss of the original must be shown); 1821,
Turnipseed v. Hawkins, ib. 272, 278 (certified
copy of deed, semhle, receivable without account-
ing for the original ; but here its loss was
shown) ; 1823, M'Mullen w. Brown, Harp. 76
(loss of the original mu.st be shown ; but here
lapse of time was allowed to suffice) ; 1825,
Bird V. Smith, 3 McC. 300 (object of the statute
of 1803, relating to North Carolina grants, was
to substitute the party's oath for ordinarv
proof of loss) ; 1825, Peay v. Picket, ib. 318
(original required to be accounted for, following
the rule in Purvis v. Robinson ; see quotation
ante, § 1224) ; 1843, Hinds v. Evans, 2 Speer 17
(copy rejected because search for original was
§§ 1177-1282]
EECOEDED CONVEYANCES.
§ 1226
§ 1226. Same : Sundry Consequences of the Principle of not Producing
Recorded Deeds. (1) If the form of proof (usually a certified copy) ex-
not sufficient) ; 1843, Birchfield v. Bon ham, ib.
62 (search for recorded deed held sufficient to
admit copy) ; 1843, State v. Hill, ib. 150, 160
(same); 1845, McLeod v. Rogers, 2 Kich. 19, 22
(" the copy was evidence only on proof of the
loss of the original; . . . Dingle w. Bowman
seems to have been lost sight of " ; noting the
conflict of rulings) ; 1846, Darby v. Huffman,
ib. 532 (before using an office-copy, the loss
alone, and not also the existence, of the origi-
nal, need be proved).
South Dakota: Stats. 1899, § 6539 ("every
instrument in writing, which is acknowledged or
proved, and duly recorded," is provable by cer-
tified copy " whenever, by the party's own oath,
or otherwise, the original is shown to be lost, or
not belonging to the party wishing to use the
same, and not within his control ").
Tennessee : Code 1896, § 3704 (certified copy
of acknowledgment of release of lien, receiv-
able) ; § 3711 (copy of registered copy of deed
of lands in different counties, receivable) ;
§3748 ("Any of said instruments [i.e. deeds,
etc.] so proved or acknowledged and certified
and registered shall be received as evidence") ;
extended to old or mutilated records re-copied,
§§3778,3786,3793, 5575; 1806, King v. Hall,
1 Overt. 209 (grantee by warranty -deed need
not produce prior deeds, which the grantor is
supposed to keep) ; 1809, Cook ». Hunter, 2 id.
113 (same) ; 1812, McClellan v. Dunlap, ib.
183 (certified copy of mesne conveyance, re-
ceived on affidavit that the original was beyond
control ; an alleged original was in Court, but,
by hypothesis being altered, could not be re-
garded as the original in question) ; 1813, Smith
V. Martin, ib. 208 (proof is needed that the origi-
nal mesne conveyance is out of the control of the
offeror, but " not the same necessity for strict-
ness as with other sorts of copies " ; here, an affi-
davit of the offei;or or his agent was held
sufficient) ; 1814, Jackson ti. Dillon, ib. 261, 263
("the law will always give an easy ear to the
reception of affidavits respecting the loss or non-
prodnction of original papers which are required
to be registered and have actually been regis-
tered agreeably to law"); 1817, Lannum v.
Brooks. 4 Hayw. 121 (deed to the defendant;
copy offered by plaintiff; production not re-
quired, because the plaintiff is presumed not to
have possession ; nor is notice to the defendant
necessary); 1823, Norflet v. Nelson, Peck 188
fprodnction required of deed offered by grantee
himself -or his heir) ; 1827, Anderson v. Walker,
M. & Y. 201 (production dispensed with " only
in those cases where the warrantor, not a de-
fendant, was supposed to keep his title by him " ;
but here both grantor and grantee were joined
as defendants, and the grantee therefore was
obliged to account for a mesne deed to the
grantor) ; 1844, Saunders v. Harris, 5 Humph.
345 (copy of recorded bill of sale to grantee,
mother of plaintiff, excluded, because the orifri-
nal was in his power) ; 1832, M'lver v. Robert-
son, 3 Yerg. 84, 89 (under the original St 1809,
c. 14, § 8, the offeror of a registered deed-copy
must show the original not to be in his power,
by express statutory provision) ; 1869, Walker
V. Walker, 6 Coldw. 571, 573, semble (wife prov-
ing deed to deceased husband; production un-
necessary, without order) ; 1874, Sampson i;.
Marr, 7 Baxt. 486, 492 (certified copy of deed
to ancestor of plaintiff, the heir ; production of
original required, as the plaintiff was presumed
to have possession).
Texas: Rev. Civ. Stats. 1895, § 2311 ("all
conveyances and other instruments of writiijg
between private individuals, which were filed in
the office of any alcalde or judge in Texas pre-
vious to the first Monday in February, 1837,"
are provable by certified copy) ; § 2312 (" Every
instrument of writing" lawfully proved or ac-
knowledged and recorded with clerk of county
court, is provable by certified copy " whenever
any party to the suit shall file among the papers
of the cause an affidavit" stating that any such
instrument " has been lost or that he cannot
procure the original") ; § 4667 (all instruments
permitted by law to be registered, and recorded
before Feb. 9, 1860, provable by certified copy
as if the proof or acknowledgment were in ac-
cordance with existing laws, provided it was
made before certain specified officers) ; § 5266
(in trespass to try title, " proof of a common
source may be made by the plaintiff by certified
copies of.the deeds showing a claim of title, etc.,"
if filed with the papers three days before trial
and notice given " as in other cases ") ; in the
following cases, where nothing is specially
noted, the ruling concerns the statutory terms in
regard to an affidavit of loss or lack of control :
1853, Styles «. Gray, 10 Tex. 503, 505 (statute
applied to the record-book) ; 1853, Crayton v.
Munger, 11 id. 234 (statute strictly applied, as
to the affidavit) ; 1856, Graham t'. Henry, 17 id,
164, 166; 1856, Fulton v. Bayne, 18 id. 50, 56
(as to the notice) ; 1857, Butler v. Dunagan, 19
id. 539, 566 (as to the affidavit) ; 1858, Bateman
V. Bateman, 21 Tex. 432 (a ruling against suffi-
ciency of proof of loss by affidavit does not pre-
clude an additional affidavit at a later trial) ;
1864, Winters v. Laird, 27 id. 616 (statute does
not apply to judicial records ; here, a probated
will ; no notice necessary) ; 18C7, Hooper r. Hull,
30 id. 154, 158 (affidavit held insufficient on the
facts); 1871, Dry «. Houston, 36 id. 260, 268;
1882, Hines v. Thorn, 57 id. 98, 103; 1882, Dot-
son V. Moss, 58 id. 152, 154; 1883, Vaudergriff
V. Piercy, 59 id. 371 ; 1885, Kauffman v. Sliell-
worth, 64 id. 179; 1885, Ross v. Kornrumpf, ib.
390, 394; 1888, Nye v. Gribble, 70 id. 458, 462,
8 S. W. 608; 1888, Boydston v. Morris, 71 id.
697, 699, 10 S. W. 331 (common-law rule ap-
plied to recorded chattel-mortgages) ; 1890, Hill
V. Taylor, 77 id. 295, 299, 14 S. W. 366; 1S90,
Foot V. Silliman, ib. 268, 271, 13 S. W. 10.'i2 ;
1898, Oxsheer v. Watt, 91 id; 402, 44 S. W. 67
(recorded mortgage; original not required).
United States: 1826, Brooks v. Marbury, 11
Wheat. 78, 82 (statute requiring record but not
exempting from production of original ; produc-
tion required; decision by a majority of the
1469
§ 1226
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
pressly provided for by a statute is not or cannot be employed, the proceed-
ing is not under the statute and the statutory exemption does not obtain ; so
Court) ; 1826, Peltz v. Clarke, 2 Cr. C. C. 703
(original need not be accounted for) ; 1830, Beiill
V. Dick, 4 id. 18 (same); 1831, Doe v. Winn,
5 Pet 233, 241 (see quotation ante, § 1224; ex-
emplification under the State seal of Greorgia
of a land-patent there recorded; production
not required; Johnson, J., diss.); 1834, Dick ».
Balch, 8 id. 30, 33 (prodnction of original not
necessary, where record is required, even though
tlie statute does not make the copy evidence;
here, the law of Jlaryland) ; 1833, Owings v.
Hull, 9 id. 607, 625 (bill of sale required by
Louisiana law to be kept by notary; production
not required) ; 1860, Gregg v. Foi-syth, 24 How.
179, 180 (original shown lost; copy allowed);
1901, Stout V. Kidney, 46 C. C. A. 459, 107 Fed.
545 (Missouri military-bounty land; .see Mo.,
supra) ; the following rulings deal with the
assignment of a patent of invention, and are to be
compared witii the citations under § 1657, post:
1S44, Brooks v. Jenkins, 3 McL. 432, 436 (origi-
nal not required, except the one under which
party claims) ; 1 848, Parker v. Haworth, 4 id.
370 (original of first assignment not required);
1860, Lee v. Blandy, 1 Bond 361 (ori^iual of
assignment to offeror, not required) ; 1 893, Paine
V. Trask, 5 U. 8. App. 283, 286, 5 C. C. A. 497,
56 Fed. 233 (whether the original of a patent-
assignment recorded must be accounted for ; un-
decided) ; 1894, New York «. R. Co., 26 id. 7,
9 C. C. A. 336, 60 Fed. 1016 (original required).
Utah: Rev. St. 1898, § 3409 (substantially
like Cal. C. C. P. § 1951); §3410, par. 4 (like
ib. § 1855) ; § 158 (certified copy of filed chattel-
mortgage admissible " if such original be out of
the control of the person wishing to use it");
1892, Wilson v. Wright, 8 Utah 215, 30 Pac.
754 (defendant a party to the deed; produc-
tion required, though another person had the
custody).
Vermont: St. 1797, Stats. 1894, § 2216 (at^
tested copy of deed recorded by county clerk,
receivable " if the records of a town in which
such deed or other conveyance is recorded are
destroyed") ; § 2222 (certified copy of recorded
power of attorney authorizing deed, receivable
" when the original cannot be produced ") ; § 2929
(sheriffs' commissions and accused's recogni-
zances, recorded with county clerk, provable by
certified copy in case of loss or destruction) ;
1827, Williams v. Wetherbee. 2 Aik. 329, 336
( mesne conveyances to plaintiff's grantor or pred-
ecessor; originals not presumed to be in plain-
tiff's possession, and therefore production not
required ; citing the statutes above as to county
clerks' copies and powers of attorney copies ;
" these expressions do not necessarily imply that
such copies may be read without proof that the
originals are out of the parties' power ; but the
course has been, ever since the Act passed, to
admit regular copies of such deeds as do not
-belong to the party wishing to use them");
1830, Booge v. Parsons, 2 Vt. 456, 459 (same
principle ; here a record of deed to plaintiff's
testator himself was received after proof of loss);
1834, Braintree v. Battles, 6 id. 395, 399, semble
14
(charter deposited in public office ; loss of origi-
nal required to be shown) ; 1850, Williams v.
Bass, 22 id. 353, 356 (record of a deed " to a
third person, and not to the party," suffices) ;
1861, Pratt v. Battles, 34 id. 391, 397 (" a party
may prove the various links in his chain of title "
without producing the originals, "except the
deed to himself . . . becan.se it is supposed to
be in his custody " ; whether or not, on a prima
facie case of fraud or forgery, production would
be required, undecided).
Virginia : Code 1887, § 3333 (copies of deeds
imperfectly recorded under certain early statutes
receivable); § 3376 (no certified copy of deed,
will, account, or other original paper required
to be recorded in a Court is to be used as evi-
dence in place of a destroyed original or record,
until such copy has been admitted to record in
substitution) ; 1797, Maxwell v. Light, 1 Call
117, 121, semble (original of recorded deed must
be shown unavailable) ; 1804, Hord v. Dishman,
5 id. 279, 284 (a copy, "by long-estahlished
usage in this country," is admissible without
accounting for the original); 1815, Rowletts v.
Daniel, 4 .\Iuuf. 473, 482 (certified copy of re-
corded deed to offeror's predecessor in title, dated
1765, received without accounting for original) ;
1821, Baker v. Preston, Gilmer 235, 284, semhle
(certified copy of recorded deed, admissible with-
out accounting for the original ; but at pp. 286,
294, it is not clear whether this was the point
decided) ; 1824, Ben v. Peete, 2 Rand. 539, 543,
semble (search required in the recording-office,
etc. : but here it turned out that the deed was not
lawfully recorded) ; 1835, Petermans v. Laws,
6 Leigh 523, 529 ("It is not necessary to con-
sider whether Baker v. Preston settles the law "
exempting from production of a locally recorded
original ; here, an original recorded in another
State must be accounted for, unless the law
there dispenses with it) ; 1 845, Pollard v. Lively,
2 Gratt. 216, 218, semble (certified copy receiv-
able, "on accouut of the inconvenience which
would be occasioned by the necessity of produc-
ing the original ") ; 1847, Pollard v. Lively, 4 id.
73, 80, semble (certified copy receivable ; but
there are intimations of a modified requiremeut
of production).
Washington: Codes & Stats. 1897, § 6046
("any deed, conveyance, bond, mortgage, or
other writing," lawfully recorded or fited, is
provable by certified copy) ; § 4532 (certified copy
of instrument duly acknowledged abroad and
recorded here, adraiissible "to the same e.xtent
and with like effect").
West Virt/iiiia: Code 1891, c. 130, § 4 (cer-
tain recorded deeds of \'irgiuia, pr.ivable bv
copy) ; c. 73. §§ 7-11 o (semble, a duly recorded
deed, provable by certified copy; but the eon-
tents of a recorded deed not properly acknowl-
edged or proved for record are thus provable
only in case of lass of the original).
Wisconsin: Stats. 1898, § 4156 (the record in
the proper registry of every conveyame or
land-patent lawfully recorded is admissible with-
out further proof ; " whenever any presumptive
70
§§ 1177-1282] RECOEDED CONVEYANCES. § 1227
that the original must be accounted for according to ordinary common-law
doctrines.^ For the same reason, the original must be accounted for by
common-law methods if it is in fact recorded but not lawfully recorded.^
(2) Conversely, if proof is proposed to be made by common-law modes and
not a statutory certified copy, any statutory requirements — for example, an
affidavit or a notice of using a certified copy — , which may be more rigorous,
need not be followed.^ (3) The statutory rule of some States {post, §§ 1651,
2132) exempting from proof of execution, where the opponent has failed by
plea or affidavit to put the execution in issue, does not exempt from produc-
tion of the original to show the contents, if under the rule for proving re-
corded deeds such production is required.* (4) The statutory affidavit often
required is merely a means of proving loss or other excuse for non-produc-
tion ; the affidavit does not suffice to supply the contents, which must other-
wise be duly proved.^ (5) Where the proponent is under the present
principle exempted from producing the original and uses a copy, the oppo-
nent also has the advantage of the exemption.^ (6) Where the original is
offered, a certified copy also may be offered so far as it may throw light on
the disputed contents of the original.^ (7) If the conveyance is recorded in
another jurisdiction and according to its laws, then production should not
be required if it is dispensed with by the law of that jurisdiction.^
§ 1227. Same: Other Principles Discriminated (Certified Copies, Affidavits,
Abstracts). (1) The principle of Authentication {post, §§ 1648, 2130) re-
quires that the execution of the recorded original be somehow proved; and
an important question (for the settlement of which the foregoing statutes
effect as evidence is given by law to such patent, for record ; proof of execution required, but not
conveyance, or instruiueut," such record and production of original).
certified copies "shall have the like effect"); ' igsg^ Loftin v. Nally, 24 Tex. 565, 574;
§ 4713 a (certified copy of conveyance, admis- 1886, Blantoa v. Ray, 66 id. 61, 7 S. W. 264;
sible in criminal cases); 1881, Johnson v. Ash- 1888, Pennington v. Schwartz, 70 id. 211,
land L. Co., 52 Wis. 458, 463, 9 N. W. 464 8 S. W. 32.
(whether the original must be accounted for, not * 1865, Yonnge v. Guilbeau, 3 Wall. 636
clear). (Texas statute).
Wi/oming: Rev. St. 18S7, § 20 (record or' "> 1872, Bounds d. Bounds, 11 Heislt. 318, 323
certified copy of a duly recorded instrument (where a statutory affidavit suffices to prove loss
' concerning any interest in land in this Terri- of the original, the contents must still be proved
torv, admissible "upon the affidavit of thepnvty by testimony on the stand). For this affidavit,
desiring to use the same, that the original as originally an exception to the party's dis-
tliereof is not in his possession or power to qualification, see ante, %\\9^.
produce"). ^ 1870, Samuel v. Borrowscale, 104 Mass.
"■ 1858, Brogan o. Savage, 5 Sneed 689, 692 207, 210 (where one party produced the copy,
(where the certified copy was inadmissible), and the other was then allowed to testify that
Compare the different result reached ante, he had never signed such a deed, without pro-
§ 1219, in the case of official documents. ducing the original).
But this consequence would not be proper ' 1869, Walker v. Walker, 6 Coldw. 571, 573
in a jurisdiction (ante, § 1224) where the rule (where the original has an alteration, the
had been reached without the aid of express registry copy may be looked to as an official
statutes. statement of original's contents at time of reg-
^ 1853, Dickerson v. Talbot, 14 B. Monr. 60, istration). Compare a similar case ante, § 1190,
67; 1800, Gittings v. Hall, 1 H. & J. 14, 18; and the cases cited an(e, § 797, concerning photo-
1863, Brown v. Cady, 10 Mich. 535, 538 ; 1848, graphic copies of handwriting.
Thomas v. Bank, 9 Sm. & M. 201 ; 1860, Davis » 1852, Smith v. McWaters, 7 La. An. 145,
W.Rhodes, 39 Misa. 152, 156; 1880, Crispen o. 147; 1879, State v. Barrow, 31 id. 691, 692;
Hannavan, 72 Mo. 548, 554; 1811, Vickroy v. 1895, Chase v. Caryl, 57 N. J. L. 545, 31 Atl.
McKnight, 4 Binn. 204, 208. Contra: 1865, 1024; and other cases cited ante, § 1225, pass*.
MeMinn v. O'Connor, 27 Cal. 238, 244 (certified Con^ro ; 1 875, TuUy v. Canfield, 60 Mo. 99, cited
copy of deed recorded but not properly proved ante, § 1225.
1471
§ 1227 DOCUMENTARY ORIGINALS. [Chap. XXXIX
were chiefly intended) is whether under the Hearsay rule a custodian's certi-
fied copy of the recorded deed is admissible to prove the execution. This
question is wholly independent of the rule of production ; for example, if
the rule of production be satisfied, as by showing the loss of the original,
it is still to be determined whether a certified copy is proper evidence
of the original's execution. This question is dealt with elsewhere {post,
§§ 1651, 1682); and the distinctions between that and the present principle
are there examined. (2) By most statutes touching the present subject, the
proof of loss or lack of possession (if that is required) may be made by affi-
davit ; this involves the creation of an exception to the Hearsay rule, for that
rule forbids the use of affidavits ; in that aspect, the subject of affidavits
is elsewhere dealt with {post, § 1710).^ (3) In some jurisdictions, a stat-
ute expressly provides for the use of abstracts of burnt records. These
statutes add nothing to the present principle, since the non-production of a
burnt original is always excused ; but they involve the rule about a copy of
a copy {post, § 1275), the rule about Completeness {post, § 2105), and the
Hearsay exception for commercial documents {post, § 1705) ; under those
heads the subject is further examined. So, also, the propriety of using a copy
of a recorded conveyance, where the statutory provision for recording re-
quires only an abstract to be recorded, involves the rule of Completeness
{post, § 2105).
§ 1228. (9) Appointments to Office. There has been much difference of
practice in regard to requiring the production of the written appointment to
office, in proving a person to be an officer. The contents of the document
would ordinarily be provable by production only, and it is upon the ground
of the present principle that the rulings to that effect have proceeded.^ But
the best practice seems to have excused production, and to have done so for
the specific reason either of the general inconvenience that such a rule would
entail in actions for or against officers, or of the " collateral " nature ( post,
§ 1252) of theissue.^ There seems thus to be recognized this additional class
of cases of exemption. But the usual sufficient proof, in the Courts where
production is not required, is held to be the facts of acting as officer and of
having a reputation as officer, or, in another form, of notoriously acting as
officer ; and the doctrine can more conveniently be considered under this
presumption {post, § 2535).*'
§ 1229. (10) Illegible Documents. Where a document, though still in
existence, has become illegible, through tearing, rubbing, fading, or other-
wise, it is for all practical purposes lost, and its contents may be proved by
other evidence ; though production may in discretion be required, in order to
prove its legible part, if any, or to make certain that the document is really
1 See also § 1196, ante. he need not show it to the Court, for that is
^ 1820, Holjoyd, J., in Brewster v. Sewell, 3 meer collateral to the action ").
B. & Aid. 296, 302. ^ For related doctrines, see also the following
" 1606, Bellamy's Case, 6 Co. Rep. 38 ("If places: § 2168 (ofiBcial character of the person
the king's fermor brings a quominus in the si^niVij or seo/m^ a document, presumed) ;§ 1625
Exchequer, he ought to alledge that he is the (repiitaiion, as evidence of incorporation); §2576
king's fermor to enable him to sue there; but {judicial notice of an oflScer).
1472
§§ 1177-1282] PKODUCTIOlSr IMPRACTICABLE. § 1230
illegible.! Upon this principle also is justified the use of photographic
enlargements of handwriting.^
§ 1230. (11) Voluminous Documents (Accounts, Records, Copyright In-
fringements, Absence of Record). Where a fact could be ascertained only by
the inspection of a large number of documents made up of very numerous
detailed statements — as, the net balance resulting from a year's vouchers of
a treasurer or a year's accounts in a bank-ledger — , it is obvious that it would
often be practically out of the question to apply the present principle by requir-
ing the production of the entire mass of documents and entries to be perused
by the jury or read aloud to them. The convenience of trials demands that
other evidence be allowed to be offered, in the shape of the testimony of a
competent witness who has perused the entire mass and will state sum-
marily the net result. Such a practice is well established to be proper.
Most Courts require, as a condition, that the mass thus summarily testified
to shall, if the occasion seems to require it, be placed at hand in court, or at
least be made accessible to the opposing party, in order that the correctness
of the evidence may be tested by inspection if desired, or that the material
for cross-examination may be available :
1854, Bigelow, J., in Boston §• W. R. Co. v. Dana, 1 Gray 83, 89, 104 (embezzlement;
schedules showing the sales of tickets for certain periods were admitted) : " It appears to
us that questions of this sort must necessarily be left very much to the discretion of the
judge who presides at the trial. It would doubtless be inexpedient in most cases to
permit ex parte statements of facts or figures to be prepared and submitted to the jury.
It should only be done where books and documents are multifarious and voluminous and
of a character to render it difficult for the jury to comprehend material facts without the
aid of such statements. ... In a trial embracing so many details and occupying so
great a length of time as the case at bar, during which a great mass of books and docu-
ments were put in evidence, it was the only mode of attaining to an intelligible view of
the cause before the jury."
The most commonly recognized application of this principle is that by which
the state of pecuniary accounts or other business transactions is allowed to
be shown by a witness' schedule or summary.-*^ So, also, in trying an issue
^ 1862, Dunning v. Rankin, 19 Cal. 640 amination of account-books, held conditional on
(mining-claim notice on a tree, the notice now the books being put in evidence) ; Ala.: 1902,
torn and illegible; production not required); Willis v. State, 134 Ala. 429, 33 So. 226 (em-
1883, Duffin v. People, 107 111. 113, 120 (signa- bezzlement ; principle applied); Ark.: 1895,
ture faded and illegible; secondary evidence Woodruff v. State, 61 Ark. 157, 170,32 S. W.
allowed) ; 1858, Little v. Downing, 37 N. H. 355, 102 (testimony to a balance of voluminous ac-
365 (the ink had faded; "the record, being counts, received on the facts, by a majority);
illegible, was lost for all practical purposes"). 1902, Hitter y. State, 70 id. 472, 69 S. W. 262
^ Cases cited arafc, § 797, pos«, §§ 2010, 2019. (embezzlement; expert accountant allowed to
1 En(/.: 1817, Meyer K. Sef ton, 2 Stark. 274, testify to the shortage shown in voluminous
276 (value of a bankrupt's property; one who bank-books); Cal.: C. C. P. 1872, §§ 1855,
had examined his accounts allowed to testify, 1937 (production excused " wlien the original
as " from tlie very nature of the case, such an consists of numerous accounts or other docu-
inquiry could not be made in Court") ; 1825, ments, which cannot be examined in Court
Gardner Peerage Case, LeMarchant's Rep. 61 without great loss of time, and the evidence
(physician, having in Court a register of 9,000 sought from them is only the general result of
cases of parturition, allowed to refer to notes of the whole ") ; 1898, San Pedro L. Co. v. Reyn-
specific relevant cases taken from the register) ; olds, 121 Cal. 74, 53 Pac. 410 (expert's schedule-
1847, Johnson v. Kershaw, 1 De G. & Sm. 260, summaries of account-books, admitted); Colo.:
264 (expert's statement of the results of an ex- C. C. P. 1891, § 356 (like Cal. C. C. P. § 1855) •
1473
§ 1230
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
of infringement of copyright, the material passages may be culled from
the entire volume and presented in such a way as to be conveniently com-
Conn.; 1899, McCann v. Gould, 71 Conn. 629,
42 Atl. 1002 (state of accounts; summaries
allowable, in trial Court's discretion, if the ex-
amination of items would consume time and
confuse jury; but the originals must be pro-
duced if demanded); Del.: 1898, Carry v.
Charles Warner Co., 2 Marv. Super. 98, 42
Atl. 425 (witness' schedule of results of ac-
count-books in court, allowed to be used) ; Ga. :
1861, Gant u. Carmichael, 31 Ga. 737, 741 (re-
sults based on invoices, etc., not introduced ;
excluded); Ida.: Rev. St. 1887, § 5999 (lilie
Cal. C. C. P. § 1855); III: 1902, Bartlett v.
Wheeler, 195 111. 445, 63 N. E. 169 (testimony
that certain books of account showed a short-
age, not admitted on the facts) ; Ind. : 1884,
Rogers v. State, 99 Ind. 218, 228 (treasurer's
accounts; experts' examinations of the books,
received ; " witnesses so testifying, to give their
evidence weight, should be prepared to corrobo-
rate every statement by references to the records,
in the presence of the jury, wherever either party
desire-i it, in either the examination or cross-ex-
amination") ; 1887, HoUingsworth v. State, 111
id. 289, 297, 12 N. E. 490 (defaulting treasurer;
expert accountants' examination of the treas-
urer's books, etc., admitted, the documents
being " voluminous and multifarious, and of
such a character as to render it diiBcult for the
jury to arrive at a correct conclusion as to
amounts"); 1893, Equitable Ace. Ins. Co. v.
Stout, 135 id. 444, 453, 33 N. E. 623 (insurance
accounts ; general principle sanctioned, but the
pleadings liere treated as excluding it); 1895,
Chicago St. L. & P. R. Co. v. Wolcott, 141 id.
267, 39 N. E. 451 (expert's statement of results
of complicated account-books, admitted) ; la. ;
1890, State o. Cadwell, 79 la. 432, 441, 44 N. W.
700 (e.'ipert's statement of results of examina-
:tion of accounts, the books being in evidence,
allowed); Ky.: 1903, Louisville Bridge Co. v.
R. Co., — Ky. — , 75 S. W. 285 (tables, of
' tolls paid, summarizing the contents of thou-
sands of waybills, admitted) ; La. : 1901, State
V. Mathis, 106 La. 263, 30 So. 834 (embezzle-
ment; an expert's statement as to the results
of his examination of the defendant's books, ad-
mitted, the books being assumed to have been
offered); Md.: 1893, Lynn w. Cumberland, 77
Md. 449, 458, 26 Atl. 1001 (expert's summary
of tax-figures, books being in court, admitted) ;
Mass.: 1854, Boston & W. R. Co. v. Dana, 1
Gray 83, 89, 104 (schedules of sales of tickets,
admitted; see quotation supra) ; 1874, Walker
V. Cnrtis, 116 Mass. 98, 100, sp.mble (summary of
estimates of days' work admitted ; here the books
were produced) ; 1894, Bicknell v. Mellett, 160
id. 328, 35 N. E. 1130 (computations by an
expert from an insolvents account-books, ad-
missible in trial Court's discretion) ; ilinn. :
1891, Wolford V. Farnham, 47 Minn. 95, 49
N. W. 528 (summary of accounts from the
firm's books, brought into court, admitted ;
though " the regular way would have been to
introduce the books " also formally in evidence) ;
1901, State 17. Clements, 82 id. 434, 85 N. W.
229 (receipt of bank-deposit during insolvency;
the journals being in evidence, an expert's sum-
maries of them were received); 1902, State i:
Salverson, 87 id. 40, 91 N. W. 1 (expert's snm-
raaries of a bank's books produced in court, held
admissible) ; Hiss. : 1878, State v. Lewenthall, 55
Miss. 589 (tax-collector's books ; memoranda of
voluminous contents excluded, because the books
were not also offered) ; 1896, Hauenstein v. Gil-
lespie, 73 id. 742, 19 So. 673 (account-books be-
longing to a witness testifying on deposition ;
that the books were not annexed as exhibits,
but were set out by copies of entries, held
proper) ; Mo. : 1870, Ritchie v. Kinney, 46
Mo. 298, 299 (receipts and disbursements ; con-
densed statement showing aggregates, not ad-
mitted, the account-books not being produced ) ;
1888, Masonic M. B. Soc'y ■;. Lackland, 97 id.
137, 139, 10 S. W. 895 (expert's results of an
examination of account-books, admitted, the
documents being in court) ; 1890, State v.
Findley, 101 id. 217, 223, 14 S. W. 185 (tax-
receipts, etc. ; the papers being present, an
expert was allowed to state the result of his
examination); Mont.: C. C. P. 1895, § 3131
(like Cal. C. C. P. § 1855) ; Nebr.. 1898, Bart-
ley V. State, 53 Nebr. 310, 73 N. W. 744 (ex-
pert's examination of account- books, received,
the books being in court) ; 1900, Bee Pub.
Co. V. World Pub. Co., 59 id. 713, 82 N. W.
28 (state of complicated accounts ; books must
be present in court, for purposes of cross-
examination) ; Nev.: Gen. St. 1885. § 3449
(like Cal. C. C. P. § 185.5); JV. Y.: 1878,
Von Sachs v. Kretz, 72 N. Y. 548 (witness'
statement of results of examination of account-
books in court, admissible in referee's discre-
tion); Or.: C. C. P. 1892, § 691 (like Cal.
C. C. P. §1855); 1895, State v. Keinhart, 26
Or. 466, 38 Pac. 822 (expert's summary of
account-books put in evidence, admitted) ; 1902,
Salem L. & T. Co v. Anson, 41 id. 562, 67 Pac.
1015, 69 Pac. 675 (expert's testimony to the
results of an examination of voluminous ac-
counts, admitted, the books being in court) ;
Tenn.: 1874, Shepherd f. Hamilton Co., 8
Heisk. 380 (officer's failure to pay over funds ; a
witness not allowed to state " the results of his
examination " of the books and vouchers) ; 1900,
Galbreath v. Knoxville, — Tenu. — , 59 S. W.
178 (summary statement of book-balance, al-
lowed, the books being in court) ; U. S. : 1873,
Burton v. Driggs, 20 Wall. 125, 136 (" When it
is necessary to prove the results of voluminous
facts or of the examination of many books and
papers, and the examination cannot conveniently
be made in court, the results may be proved by
the person who made the examination ") ; 1898,
Rollins V. Board, 33 C. C. A. 181, 90 Fed. 575
(tabulated statements by an expert of records
of county indebtedness, etc., the books being
offered also, admitted) ; 1898, Northern P. R.
Co. V. Keyes C. C. C, 91 Fed 47 (similar) ;
Utah: Rev. St. 1898, §3410 (like Cal. C. C.
P. § 1855).
Compare the cases cited post, % 1244, where
1474
§§1177-1282] WHICH IS THE OEIGINAL? §1231
pared.2 Upon the same principle, summaries of of&eial or corporate records
might properly be presented ; * and testimony, by one who has examined
records, that no record of a specific tenor is there contained is receivable
instead of producing the entire mass for perusal in the court-room.*
{d) " Of the Writing Itself."
§ 1231. "What is the "Original" "Writing? General Principle. The fun-
damental notion of the general rule under consideration is that the terms
of a writing must be proved by producing it and not by offering testi-
mony about them. It is commonly said that the " original " must be pro-
duced, and not a copy. But " original " is a relative term only. When a
particular paper is said to reproduce the terms of another, the former is the
" copy," the latter the " original." Thus, " original " and " copy " are words
correlative, with reference to the succession of existence between them, and
have no necessary connection with the present rule. Given merely two
papers, A and B, of which A was copied from B, and A thus is the " copy "
and B the " original," we still have no light at all on the application of the
present rule, i. e. on the question whether paper A can be offered without
accounting for the non-production of paper B. For example, paper A might
be a libellous document handed by M to N,' while paper B was kept by M in
his private desk ; so that to prove the publication of a libel, paper A and not
paper B would be the document whose production the present rule would
require ; yet relatively to each other paper A is a " copy " and paper B an
" original." Again, paper A may have been deposited for safe-keeping with
N. as bailee, and in an action for negligently injuring it, paper A is the docu-
ment to be accounted for under the present rule, and paper B could be used
a similar result may be reached, in some cases, show a system of defrauding by false warrants,
by a different principle. more than 500 in all, a tabulated statement from
For the opinion rule as applied to such testi- the voluminous records was admitted) ; 1899,
moiiy, see post, _§§ 1957, 1959, 1978. Piano Mfg. Co. v. McCoid, — id. — , 80 N. W.
2 1839, Lewis v. Fullerton, 2 Beav. 6, 8 (ex- 659 (to show insolvency, a list of the recorded
hibits on both sides showing copied passages, mortgages, etc., made by one testifying, ex-
etc, used by the Court to facilitate comparison) ; eluded); 1902, ]31nm v. State, 94 Md. 375, 51
1826, Mawman v. Tegg, 2 Kuss. 385, 398 (same Atl. 26 (summary of claims proved under a
process sanctioned bv Eldon, L. C.) ; 1869, receivership, verified by the receiver, admitted) ;
Lawrence v. Dana, 4 'Cliff. 1, 72 (testimony of 1903, Scott v. K. Co.,"— Or. — , 72 Pac. 594
experts as to the extent of copying in a volu- (average of rainfall for 18 years, allowed to be
minous work charged to infringe a copyright, testified to from official records without stating
received, although the Court also examined the detailed entries) ; 1896, Ludtke v. Hertzog, 18
original material for itself); 1897, West Pub. C. C. A. 487, 72 Fed. 142 (testimony to the
Co. V, Lawyers' Coop. P. Co., 25 C. C. A. 648, identity of an enrolled soldier as gathered from
79 Fed. 756 (in ascertaining the extent of a bor- a perusal of the various archives containing his
rowing of paragraphs of syllabi, tables prepared name and doings, admitted); 1900, Jordan v.
l)y witnesses who had examined thousands of Warner, 107 Wis. 539, 83 N. W. 946 (summary
eases were used as evidence of their contents, of complicated land-records and tax-rolls, the
after the Court had tested their accuracy). originals being before the court, admitted).
3 1901, Schumacher v. Pima Co., — Ariz. * 1897, Hoffman v. Pack, 114 Mich. 1, 71
— , 64 Pac. 490 (expert's summaries of fee- N. W, 1095 (a clerk, allowed to testify that no
records in probate court, admitted) ; 1896, records of a certain sort existed). The same
Adams v. Board, 37 Fla. 266, 20 So. 266 (sub- result may be reached on the principle of
stance of a number of records of a Board, ex- § 1244, post, where other cases are cited,
clnded) ; 1860, Thornbnrgh v. R. Co., 14 Ind. Whether an official custodian may make a
499, 501 (witness producing corporation-record, hearsay statement, by certificate, to the same
allowed to state the aggregate footings) ; 1897, effect, is a different question ; see post, § 1678.
State V. Brady, 100 la. 191, 69 N. W. 290 (to For the opinion rule, see post, §§ 1957, 1978.
1475
§ 1231 DOCUMENTARY ORIGINALS. [Chap. XXXIX
only secondarily, although the former is only a " copy " and the latter is an
" original." Thus, the terms " copy " and " original," being purely relative to
each other, have no inherent relation to the present rule, and the term
" original " has no real significance in indicating which paper it is (of all
possible papers) whose production is required by the rule. In order to state
the rule, then, in terms which will indicate in the rule itself what documents
are included in its scope, it must be noted that the production required is
the production of the document whose contents are to he proved in the state of
the issues. Whether or not that document was written before or after another,
was copied from another, or was itself used to copy from, is immaterial. The
question becomes : Is this the very document whose contents are desired to
be, and, in the now state of the issues, by the substantive law may lawfully
be proved ? This inquiry is of course usually answered without hesitation ;
but there are numerous instances in which a difficulty of principle arises.
The cases in which a question may arise fall into four groups : (1) Cases
in which the document to be proved was brought into existence in dupli-
cate or multiplicate form, — chiefly, the case of duiMcate originals ; (2) cases
in which a document, first made by copying from another, has since been
acted upon or dealt with at other times, by the same or another person, so that
for the purposes of such later acts it is the document to be proved ; (3) cases
in which, of two or more documents, one or another of them will be the
document in issue according to the substantive law of contract, property,
etc., applicable to the case ; (4) cases in which, by the rule of Integration,
or Parol Evidence {post, § 2429), a document which would otherwise be the
one in issue has been annulled or superseded by another one, which thus
becomes the only one allowable by law to be proved and therefore the one
necessary to be produced.
§ 1232. (1) Duplicates and Counterparts : Either may be used ■without
producing the Other. Where the writing constituting a bilateral transaction
is executed by the parties in duplicate or multiplicate, each of these parts is
" the '' writing, because by the act of the parties each is as much the legal
act as another. It can make no difference that one party has signed only the
document taken by the other, except where it is desired to prove specifically
the signature. Such a duplicate or counterpart, then, may be used without
accounting for the non-production of any other, because the present rule is
satisfied by the production of any one part :
1809, BllenborougJi, L. C. J., in Philipson v Chase, 2 Camp. 110 : " If there are two
co-temporary writings, the counterparts of each other, one of which is delivered to the
opposite party, and the other preserved, as they may both be considered as originals, and
they have equal claims to authenticity, the one which is preserved may be received in
evidence, without notice to produce the one which was delivered."
This result is generally accepted.^
1 1842, Doe !). Pulraan, 3 Q. B. 622 (to prove counting for the part signed by W.) ; 18.58,
W. seised, a counterpart of a lease by him Leonard ». Yonne, 4 All. N. Br. Ill (certain
signed by the lessee was received, without ac- leases, held duplicate originals) ; 1868, Cleve-
1476
§§1177-1282] WHICH IS THE ORIGINAL? §1234
§ 1233. Same : All Duplicates or Counterparts must be accounted for be-
fore using Copies. Conversely, since all the duplicates or multiplicates are
parts of the writing itself to be proved, no excuse for non-production of the
writing itself can be regarded as established until it appears that all of its
parts are unavailable (i. e. lost, detained by the opponent or by a third per-
son, or the like). This is well settled, though not always in the light of the
correct reason.
1825, Best, C. J., in Munn v. Godbold, 3 Bing. 292 : " When there are two instruments
executed as parts of a deed, one of the.se parts is more authentic and satisfactory evidence
of the contents of the other part than any other draft or copy. It is prepared with more
care than any other copy, and the party who produces it, and against whom it is used, by
taking and keeping it as a part of the deed, admits its accuracy. The Courts have there-
fore always required that if one part of a deed be lost, and another part be in existence, it
must be produced " ; but "... merely as secondary evidence of the part that was lost." ^
In the foregoing passage, the counterpart is treated as merely a preferred
variety of copy (posi, § 1273); but the same result is necessarily reached,
apart from any theory of preferred copies, from the nature of the general
rule.
§ 1234. S^me : Duplicate Notices, Blotter-Press Copies, and Printing-Press
Copies, as Originals. (1) A doctrine was early established that where a
notice was made by writing it out twice, at the same sitting, the writings
were in fact duplicates, though not written nor executed contemporaneously,
and that thus the one retained could be used without accounting for the
non-production of the one delivered.^ This theory seems to have been in
land & T. R. Co. v. Perkins, 17 Mich. 296 Alivon w.-Furnival, 1 Cr. M. & R. 277, 292;
(contract exchanged in duplicate ; either re- 1836, Doe v. Waiuwright, 1 Nev. & P. 8, 12
ceivahle) ; 1876, Ketclium v. Brennan, 53 Miss, ("a counterpart is the next best evidence") ;
597, 605, 608 (obscure) ; 1865, Carr « Carr, 36 U. S., Ga. Code 1895, § 5173; 1872, Breed o.
Mo. 408, 411, semble (either receivable); 1827, Nagle, 46 Ga. 112 (lease in duplicate; inaction
Lewis V. Payn, 8 Cow. 71, 76 (two copies of a by stranger against lessee, originalof lessee, and
lease, each executed by both parties ; " both are not merely of lessor, to be accounted for) ;
properly originals," on an issue of the existence 1886, Cincinnati N. 0. & T. P. R. Co. v. Disbrow,
of the tenancy) ; 1830, .lackson v. Denison, 4 76 id. 253 (duplicate contract; after accounting
Wend. 558 (counterpart of an agreement usable for both, parts, a copy allowed); 1900, Kodri-
like the original); 1847, Bogardus v. Trinity guez' Estate, 13 How. 202, 205 (counterparts of
Church, 4 Sandf, Ch. 63.3, 730, s«mWe (the lessor's leases preferred to copies); 1871, White v.
counterpart of a lease is the original where it is Herrman, 62 111. 73 (duplicate original of a
offered as containing the lessee's declarations of contract, preferred to a copy) ; 1827, Krwin v.
a holding under the lessor) ; 1900, State t'. Allen, Porter, 6 Mart. n. s. 166, semble ; 1874, Dyer v.
56 S. C. 495, 35 S. E. 204 (school certificates) ; Fredericks, 63 Me. 173 (duplicate originals' of a
18'28, Carroll v. Peake, 1 Pet. 18, 23 (opponent's bill of lading ; rule applied) ; 1829, Poignard v.
copy of an agreement of lease, held an original, Smith, 8 Pick. 272, 279 (counterpart of a mort-
on the facts). gage required). ConJm : 1 844, Hewlett u. Heu-
The earlier practice seems to have been to derson, 9 Rob. La. 379, 381, semble,
treat the counterpart of a deed as a copy or ^ 1796, Gotlieb v. Danvers, 1 Esp. 455 (Eyre,
secondary, as inay be inferred from the utter- C. J., said "that where two copies of any' in-
ances quoted post, § 1273, upon the preferred strument or notice were made at the same time,
order of copies. Moreover the quotation in the both were to be deemed originals " ; here a no-
next section shows the persistence of this idea. tice to take away a crane) ; 1799, Jory v. Orch-
1 Eng. : 1740, Villiers n. Villicrs, 2 Atk. 71, ard, 2 B. & P. 39 (a written statutory demand;
Hardwicke, L. C. ; 1773, Ludlam's Will, Lofft the attorney "made out two papers for that
362 (Mansfield, L., C. J. : " If you cannot prove purpose, preci.sely to the same effect, and signed
a deed by producing it, you may produce the them both for his client, one of which he deliv-
counterpart"); 1795. R. v. Castleton, 6 T. R. ered " and the other he kept ; held that the lat-
236 (indenture of apprenticeship); 1825, Munn ter, as a counterpart or "duplicate original,"
V. Godbold, 3 Bing. 292 (quoted supra); 1834, could be used in evidence; the analogie^s of a
1477
§ 1234
DOCUMENTAEY ORIGINALS.
[Chap. XXXIX
part the origin of the rule of thumb, already considered (ante, § 1206), that
no notice to produce a notice need be given ; but though the theory would
logically extend to any kind of a document written in duplicate at the same
sitting, such an extension appears not to have occurred.^ The fallacy of
the theory seems to lie in this circumstance, that what makes two numbers
of any instrument duplicates and equivalent is that the legal act as consum-
mated embraces them both ; it is not the coincidence of writing (for the
counterpart of a deed may be written after an interval), but the unity given
by the final legal act. Thus, if both numbers of a notice were served, and
then the server retained one, the two would indeed be duplicates; but the
mere writing at one sitting, followed by a legal act of service performed with
one number only, cannot make the other an equivalent " original " for the
purposes of the present rule.
(2) A reproduction by hlotter-press or letter-press cannot be considered as
a duplicate ; ^ and policy here supports principle, for such reproductions are
by no means uniformly identical or accurate. The same must be said of any
process of machine-reproduction which consists in obtaining repeated ink-
traces from a single writing so prepared as to furnish such traces by pressure
or by chemical operation.
notice to quit and a notice to a justice were con-
sidered to control, and the existing practice to
use the " duplicate original " was confirmed ;
Rooke, J., diss.); 1803, Surtees v. Hubbard, 4
Esp. 203 (copy of a notice of assignment, writ-
ten at the same time and signed by the party ;
admitted, semble, aa a duplicate original, per
Ellenborough, L. C. J.) ; 1874, HoUenbeck u.
Stanberry, 38 la. 325, 327 (copy of original
summous served upon party, equivalent to tlie
summons itself) ; 1874, Barr v. Armstrong, 56
Mo. 577, 586 (two numbers of notice written at
same time and one served ; each held an orig-
inal); 1816, Johnson v. Haight, 13 John. 470
(notice of dishonor proved by copy made at the
time, as "a duplicate original"); 1826, Eisen-
hart V. Slaymaker, 14 S. & R. 153, 156 ("every
written notice is to be proved by a duplicate
original ")•
^ 1800, Anderson!;. May, 2 B. & P. 237 (copy
of a bill of costs delivered to thedefendant; admit-
ted, on the authority of Jory v. Orchard) ; 1809,
Philipson r. Chase, 2 Comp. 110 (doctrine con-
ceded, but held not to apply to a liook entry of
an attorney's bill); 1822, Kine v. Beaumont, 3
B. & B. 288, 291, sembk (three judges could not
see " any great difference " between "a dupli-
cate original and a copy made at the time");
1827, Colling i: Treweek, 6 B. & C. 394,398 (an
attorney's bill, signed ; a copy, made at the same
time, but not signed, but offered to be signed at
the trial ; undecided) ; 1880, Central Branch
U. P. R. Co. V. Walters, 24 Kan. 504, 509 (a
written demand was essential to the claim ; a
copy drawn up at the same time with the oue
served, held not equivalent to the original).
3 1812, Nodin v. Murray, 3 Camp. 228 ; 1885,
Spottiswood V. Weir, 66 Cal. 525, 529, 6 Pac.
381 ; 1890, Ford v. Cunningham, 87 id. 209,
210,25 Pac. 403; 1876, Watkins ii. Paine, 57
Ga. 50; 1873, Richards Iron Works u. Glennon,
71 111. 11 ; 1874, King v. Worthington, 73 id.
161, 163; 1883, Duringer v. Moschino, 93 Ind.
495, 499; 1887, State v. Halstead, 73 la. 376,
378, 35 N. W. 457 ; 1898, Seibert ii. Ragsdale,
103 Ky. 206, 44 S. W. 653; 1899, Heilmau
Milling Co. V. Hotaling, — id. — , 53 S. W.
655; 1871, Mansh v. Hand, 35 Md. 123, 127;
1869, Goodrich v. Weston, 102 Mass. 362, sem-
ble; 1890, Smith v. Brown, 151 id. 338, 340, 24
N. E. 31 (title to a judgment ; the assignment
in is.'ue); 1895, Traber' ii. Hicks, 131 Mo. 180,
32 S. W. 1145; 1880, Delanev v. Errickson, 10
Nebr. 492, 501, 6 N. W. 600; 1883, Ward v.
Beals, 14 id. 114, 119, 15 N. W. 353; 1898,
Westinghouse Co. u. Tilden, 56 id. 129, 76N. W.
416; 1870, Foot v. Bentley, 44 N. Y. 166, 170.
Distinguish the following: 1859, Nathan v.
Jacob, 1 F. & F. 452 (as an admission, a copy
kept in a letter-book by the writer is equivalent
to the letter itself, and is an original).
By statute the rule has sometimes been al-
tered: Cal. C. C. P. 1872, § 1937, as amended
in 1901 ("Where an impression of a letter is
taken in a letter-press copy-book before the
mailing of the original, such letter-press copy
must be deemed an original equally with the
letter so copied, and may be read in evidence
upon proof of the due mailing of the letter
so copied " ; for the validity of these amend-
ments, see ante, § 488) ; Haw". Civil Laws 1897,
§ 1407 (original not required, where " any writ-
ing whatsoever shall have been copied by
means of any machine or press which produces
a facsimile impression or copy of such writing,"
on proof that the copy offered was so taken
from the original).
1478
§§1177-1282] WHICH IS THE ORIGINAL? §1234
(3) The case of a type-machine (the ordinary printing-press, or its equiv-
alents) is different. Here, the only variances that can occur between differ-
ent numbers reproduced by printing must arise from a change in the type or
from the exhaustion of the ink. But the ordinary printing-press is now self-
feeding in respect to ink ; and, on the supposition that the type is not inten-
tionally altered, all the reproductions from the same setting of type may be
regarded for practical purposes as identical and equivalent. In those type-
writing office-machines in which the paper is stationary and the hand applies
a movable type or a pen, producing an impression through several sheets at
once, the case is more difficult ; for though the first few impressions may be
identical, yet the lower sheets are likely to be imperfect.
As to these various special machines, no rulings seem to have been made.*
But for the printing-press having fixed type, it ought to be clear that any
one of the multiplicate impressions obtained from a single and unaltered set-
ting of type are equivalent, and that therefore to prove the contents of any
one such impression any other one may be used without accounting for the
former.^ In these days, to be sure, of numerous differing editions of news-
papers within a single day, and even of plural editions of periodical maga-
zines and of novels with alterations made since the printing of the first copies,
the proof of the above preliminary condition, namely, the absence of altera-
tion in the type, becomes a more difficult matter ; but this aspect of the
subject does not seem yet to have been recognized in judicial rulings.
A more important circumstance is that the natural operation of the above
simple principle is in practice complicated and disturbed by the intervention
of other principles. Thus, {a) a printed impression may or not be the writ-
ing to be proved, according as it or the manuscript draft constitutes the
legal act desired to be proved (^post, § 1235) ; (&) a specific printed impres-
* Compare the Hawaiian statute, SHprn. been seen elsewhere; for the identity of the
' 1817, R. V. Watson, 2 Stark. 116 (the de- contents with those of registered copies in court
fendant caused 500 placards to be printed and was to be shown, and there was by hypothesis
carried away 25 of them for posting; to prove no common printing) ; 1847, McGrathti. Cox, 3
the contents of those posted, one of the remain- U. C. Q. B. 332 (to prove a libel, the pamphlet
der was admitted; "everyone of those worked charged as pulilished could not be produced,
off are originals, in the nature of duplicate nor was any one who had read it produced so as
original.s " ; "since it appears that they are to be able to identify it with another pamphlet
from the same press, they must all be the offered ; a common printing was not shown, and
same"). the evidence of identity of general appearance,
In the following case the principle was left title-page, and dedication, was held not suffi-
undecided : 1837, Watts v. Fraser, 7 A. & E. cient; Jones, J., diss.; the real error in the
223, 232 (the defendant, to show provocation by case lies in holding the proof of common print-
the plaintiff's libel, offered a copy of a news- ing insuflScieiit ; for the pamphlet was one cir-
paper deposited under the law by the plaintiff culated at an election, and the general evidence
at the public Stamp-OflBce ; excluded, because of correspondence sufficed to dismiss doubt for
knowledge of its contents by the defendant was any reasonable person not sitting in the judicial
not shown; whether, if knowledge of the con- atmosphere of artificial reasoning),
tents of another number of the same issue had In the following cases the principle stated in
been shown, this number would have been re- the text was ignored or repudiated: 1817,
ceived to prove contents, not decided). Williams v. Stoughton, 2 Stark. 292 (to show
In the following cases no common printing the contents of a prospectus received by a
was shown, and thus the impressions in question school-patron, another printed copy was re-
conld not be assumed to be identical : 1849, jected) ; 1881, Southwestern U. Co. v. Papot, 67
Boosey v. Davidson, 13 Q. B. 257, 266 (to prove Ga. 675, 686 (newspaper itself the original, 'not
prior publication of certain operatic pieces, pro- some other printed copy, in proving publication
duction was required of copies alleged to have of notice of sale).
1479
§ 1234 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
sion may by the substantive law be the only one in issue, and then it
must be accounted for before another can be used (post, § 1237) ; (c) and in
that case, a question may arise (treated ante, §§ 415, 440) as to the suffi-
ciency of the evidence of the identity or correctness of the copy offered ;
(d) a printed impression may be read aloud and then the words uttered may
be proved, if material under the issues, without producing the printed
impression {post, § 1243) ; ^ (e) and, finally, the act of sending or delivery
may not require production (j)ost, § 1248).
§ 1235. (2) Copy acted on or dealt •with, as, an Original for Certain Purposes
(Bailments, Admissions, Bank-books, Accounts, etc.). Where an act material
to be proved consists in the adoption of a paper by acting upon it or deal-
ing with it, the rule requiring production applies to this paper, as involving
the terms of the act ; so that it is immaterial whether the paper was first
made by copying another paper. For the purposes of proving the act in
question, the specific paper dealt with is the writing to be produced. For
example, in an action against a hailee for wrongful dealing with a document
deposited, the document deposited, whether a copy or an original, is the
document to be accounted for.^ Again, in proving the terms of an admis-
sion by an opponent, where he orally or otherwise has acknowledged the
correctness of a certain document, the document thus acknowledged (usually
a lank-hook) is the one to be accounted for, wliether it is a copy of something
else or not.^ Again, in proving an account stated, the statement furnished
is the document to be proved, though it may be only a copy from books of
account.^ So also the criminal act to be proved may consist in the reading
or posting of a document which otherwise may be but a copy from something
else;* and other illustrations are of frequent occurrence.^
8 Distinguish, moreover, the question of account delivered, and not the books from which
authenticating the publishei- of printed matter it was talien, is the original); 1898, Missouri,
{post, § 2150). P. R. Co. V. Palmer, .55 Nebr. 559, 76 N. W.
^ See examples anie, § 1205. 169 (plaintiff suing for medical expenses;
2 1858, Lawton ». Tarrat, 4 All. N. Br. l,8(a physician's bill rendered, treated as original,
written statement by a debtor was shown by him not his account-books).
to the creditor, who copied it in his presence; * 1817, II. v. Watson, 2 Stark. 116 (C. took a
whether the creditor's writing was an original, manuscript to a printer, who printed 500 copies
not decided) ; 1887, State v. Halstead, 73 la. as a placard ; the defendant came and took
376,377 (embezzlement; in showing depo.sits by away 25 of them; one of the remainder was
defendant in a bank, his deposit-tickets are not offered, upon a trial for posting a treasonable
secondary to the bank-books made up from proclamation ; the rule held not to require the
them) ; 1898, Kelly v. Elevator Co., 7 N. D. production of the manuscript, because the de-
343, 75 N. W. 264 (defendant's agent's stub- fendant "adopted the printing," and thus the
entries copied from original entries and offered printed placards became the originals); 1820,
by plaintiff as admissions ; allowed, the originals R. v. Hunt, 3 B. & Aid 566, 568, 572 (seditious
here being destroyed ; but, on principle, the resolutions read at a meeting ; a copy had been
latter showing was not necessary); 1897, State given to the witness by the defendant at the
V. McCauley, 17 Wash. 88, 49 Pac. 221, 51 Pac. time as representing what was to be read, and
382 (to show the state of the defendant's account the witness testified that they were read as in the
at a bank, the bank's books were introduced ; copy ; the copy held sufficient as an original for
held, that the defendant's checks need not be the purpose).
produced, because the defendant's examination ^ jggy^ Comer v. Comer, 120 111. 420, 430,
of his pass-book, made up from the bank-books, 11 N. E. 848 (copy of letter ; copy attached to
was an admission of the latter's correctness ; and contract and made a part of it becomes an origi-
thus the books came in as an admission, not as nal). So for a letter-press copy: ante, § 1234,
secondary evidence of the checks). note 3.
3 1835, Vinal v. Burrill, 16 Pick. 401, 407 Compare the Doctrine of § 1242, ;)os«.
(account stated; to prove its contents, the
1480
§§1177-1282] WHICH IS THE ORIGINAL? §1236
§ 1236. (3) Copy made an Original by the Substantive Law applicable ;
(a) Telegraphic Dispatches. Of two or more documents, copied one from
another, the substantive law of property, contracts, crimes, or torts, may-
indicate a specific one as the material one under the issue. In that case, it
is immaterial whether or not the one thus indicated was, when first made, a
" copy " from another ; it must be accounted for. The principle is essentially
the same as in the foregoing class of cases ; the difference is merely that
here it cannot be told which document is the writing to be produced, until
some point of substantive law has been determined ; when that is deter-
mined, it immediately indicates the document to which the present rule of
evidence applies. Since the difficulty is raised and is determined solely by
the substantive law, it is not necessary here to review all the various in-
stances ; it will suffice merely to indicate the bearings of the question in the
cases of chief difficulty and commonest occurrence.
(a) Whether, in proving the terms of a telegram, the dispatch sent or the
dispatch delivered and received is the one to be accounted for, depends upon
the substantive law involved. In an action, for example, by a customer
against a broker for falsely reporting his bankruptcy to a third person, the
dispatch sent would be the one to be proved ; but in an action against a tele-
graph company by an addressee for delayed delivery, the dispatch delivered
would be the material one; while in an action by an offeree against an
offeror in which the acceptance' of the offer is denied, the solution would
depend on the rule in force as to the necessity of receipt of acceptance by
the offeror ; and in certain other actions both the sent and the received dis-
patches would have to be accounted for. These discriminations are accepted
by most Courts, though in many rulings the grounds for decision are left
obscure.-^
1 Eng.: 1887, R. v. Regan, 16 Cox Cr. 203 Fatman, 73 id. 285, 292 (action for failure
(to prove a telegram sent by the accused, the to deliver telegram in season ; received tele-
writing handed to the telegraph office, not the gram admitted as the original); 1884, Pensar
copy received, is the original) ; N. Br. : St. 1881, cola R. Co. v. Schaffer, 76 id. 233, 237 (telegram
c. 14, § 2 (" secondary evidence " may be given received, treated as secondary, the message be-
of a telegram " sent to the opposite party or ing by one who delayed performance of con-
shown to be in his possession " after the usual tract) ; Ga. .- 1893, Conyers c: P. T. C. Co., 92
notice and failure to produce) ; N. Sc. : Rev. St. Ga. 619, 622, 19 S. E. 253 (action for failuie to
1900, c. 163, § 30 ("as proof of the contents of deliver with diligence; delivered message the
the original telegraphic message" the party original) ; 1893, Western Union T. Co. f. Bates,
may introduce "the message received by him 93 id. 352, 355, 20 S. E. 639 (same as the Fat-
from the telegraph office," on ten days' notice man case, supra) ; 1894, Western U. Tel. Co. v.
to the opponent, and provided he "proves that Blance, 94 id. 431, 19 S. E. 255 (action for
it was received at the telegraph office of the failure to deliver with diligence ; delivered paper
place to which it purports to be addressed ") ; the original) ; ///. ; 1861, Matteson v. Noyes, 25
Ont. : 1859, Kinghorne i;. Tel. Co., 18 U. C. 111. 591 (assumpsit ; dispatch sent treated as the
Q. B, 60, 66 (action for failure to deliver tele- original, and dispatch received as a copy) ; 1871,
gram ; question whether the dispatches satisfied Morgan v. People, 59 id. 58, 61 (party telegraph-
the statute of frauds; for'this purpose the dis- ing the sheriff to stop a sale; dispatch received
patch as handed to the operator was considered) ; is the original); 1888, Anheu.ser-Busch B.
Ala..- 1879, Whilden w. Bank, 64 Ala. 1, 13, 30 Ass'n u. Hutmacher, 127 id. 652, 657, 21 N. E.
(action on promise to pay bill of exchange ; to 626 (assumpsit for services ; telegrams sent by
prove telegrams sent to the defendant, the origi- defendant to plaintiff ; delivered dispatch held
nals on file at the sending office were produced ; the original) ; Ind. : 1874, Western Union Tel.
allowed, the delivered message being out of the Co. v. Hopkins, 49 Ind. 223, 227 (damages for
jurisdiction ; question reserved, as to which was failure to transmit message ; dispatch handed
the original) ; 1884, Western Union T. Co. v. to the operator treated as the original) ; 1888,
1481
§ 1237
DOCUMENTARY ORIGHSTALS.
[Chap. XXXIX
§ 1237. Same : (b) Printed Matter. If a contributor sues a magazine for
an article accepted but not paid for, the manuscript accepted is the docu-
ment to which the rule applies. If a person whose interview has been
published in a newspaper is sued for libel, the words uttered are the thing
to be proved, though the printed words would equally be provable if the
printing was authorized by the defendant.^ If the libel was charged as pub-
lished in a newspaper or other printing of which multiple numbers existed,
the number charged would in theory be the document to be proved,"-' though
it would seem (on the principle of § 1234, ante), that the production of any
other number printed from the same type-setting would satisfy the rule.^
In this connection, there may also be involved the principles of § 1243, post,
Terre Haute & I. R. Co. v. Stockwell, 118 id.
98, 102, 20 ]Sr. E. 650 (that telegrams were
sent by a conductor; oral testimony allowed,
since it did not appear that the telegrams were
in writing); la.: 1888, Riordan v. Guggerty,
74 la. 688, 693, 39 N. W. 107 (whether defend-
ant sent a telegram; copy made at the re-
ceiving office, admitted, the sent document being
shown lost); Md.: 1880, Smith v. Easton, 54
Md. 138, 145 (whether a contract was made by
telegram ; the promisor's telegram sent to the
telegraph office, held the original, and here
held not sufficiently authenticated) ; llfass. :
1895, Nickersou v. Spindell, 164 Mass. 25, 41
N. E. 107 (addressee's dispatch the original,
unless a rule of law makes sender's dispatch
binding) ; Minn. : 1884, Wilson w. R. Co., 31
Minn. 481, 18 N. W. 291 (to prove a hiring by
telegraph, the dispatch received is the original ;
on proof of its loss, oral testimony of its con-
tents is admissible) ; 1890, Nichols v. Howe, 43
id. 181, 45 N. W. 14 (contract by telegram; pro-
duction of the telegram required) ; Miss. : 1859,
Williams v. Brickell, 37 Miss. 682, 686 (hir-
ing by telegram ; plaintiff must produce the
dispatch received); N. H.: 1869, Howley ».
Whipple, 48 N. H. 487 (to show that J. G. had
sent a telegram from Montreal, held, the dis-
patch as handed for transmission in Montreal
was the original) ; N. Y. : 1883, Oregon S. Co.
V. Otis, 14 Abb. N. C. 388, 100 N. Y. 446, 453,
3 N. E. 485 (contract said to be made by the
defendant as agent for the plaintiff ; the " orig-
inal message " said to be the primary evidence ;
opinion obscure) ; S. D. : 1899, Western Twine
Co. V. Wright, 11 S. D. 521, 78 N. W. 942 (con-
tract of warranty ; received dispatch from prom-
isor, admitted for promisee, after evidence that
telegraph company's rules required the destruc-
tion of originals after six months) ; 1902,
Distad V. Shanklin, 15 id-. 507, 90 N. W. 151
(breach of contract ; sendee's copy admitted,
the original having been destroyed by the tele-
graph company); Tex.: 1887, Prather v. Wil-
kins, 68 Tex. 187, 4 S. W. 252 (no discrimina.
tion made on this point) ; U. S. : 1894, U. S. v.
Dunbar, 60 Fed. 75 (admissions of contents of a
telegram, received) ; 1895, Dunbar v. U. S., 156
U. 8. 185, 196 (telegram received by B. and ad-
mitted by the defendant to have been sent by him,
received) ; Vt. : 1856, Durkee v. R. Co., 29 Vt.
127, 140 (action for commissions in raising
loan for the defendant; to prove the contract,
telegrams were involved ; Redfield, C. J. :
" It depends upon which party is responsible
for the transmission across the line, or in other
words whose agent the telegraph is " ; where
the received dispatch is the legally material
document, it must be accounted for ; a recorded
copy of it would " ordinarily " be preferable to
mere recollection ; and the message as handed
in by the sender " perhaps " might also serve as
a copy ; but " where the party to whom the com-
munication is made is to take the risk of trans-
mission, tHe message delivered to the operator
is the original"); 1877, State v. Hopkins, 50
id. 316, 323, 332 (to show knowledge by com-
munication, the delivered form of a telegram
delivered to the defendant was received ; tb
prove the contents of a telegram sent by the
defendant, a copy of the delivered form was
received, on proof of destruction of the sent
original by the telegraph company) ; Wis. : 1876,
Saveland v. Green, 40 Wis. 431, 440 (contract
by telegram ; received message here the origi-
nal, under the law of contracts) ; 1882, Kaudall
V. N. W. Tel. Co., 54 id. 140, 143, 11 N. W.
419 (undecided).
For authentication of teUgrams, see post, § 2154.
1 1824, Adams v. Kelly, Ry. & Mo. 157 (libel;
the defendant had told the matter to a reporter,
who had taken it in writing, and it had then
been published by a newspaper, which was the
libel charged; held, that the newspaper state-
ment must be shown to be the same as that
which the defendant made to the reporter, and
therefore the writing became an original to be
produced; here the words as printed had to be
shown to be authorized by the defendant).
^ 1835, Johnson v. Morgan, 7 A. & E. 233
(libel by a song; the particular copy whose
publication was alleged had been lost ; and this
showing was held requisite before other copies
could be resorted to); 1847, McGrath v. Cox,
3 IT. C. Q. B. 332, 337 (Robinson, C. J. : " The
plaintiff [in libel], as I conceive, must be looked
upon always as prosecuting for the inquiry aris-
ing_ from publishing some one certain libel to
which particular act of publication his cause of
action is confined").
' Thus the preceding two cases would seem
to be unsound. Compare the cases cited ante,
§ 1234.
1482
§§1177-1282] WHICH IS THE ORIGINAL] §1239
as well as of Authentication {post, § 2150) and of Identity {ante, §§ 415,
440).
§ 1238. Same: (c) WUls and Letters of Administration. (1) At common
law, the Ecclesiastical Court had jurisdiction to administer personalty and to
adjudicate vAlls of personalty, but not to adjudicate wills of realty. Hence,
a will of personalty, when probated, became a part of that Court's records, but
a will of realty remained, even after probate, merely a deed taking effect
after death.^ It followed that a will of personalty need not be produced, but
could be proved by the Court record or a copy of it, while a will of realty
must be produced or accounted for.^ Modern legislation has given Probate
Courts jurisdiction over both kinds of wills; so that this distinction no
longer exists ; but the statutes dealing with the matter provide sometimes
that the will itself, and not merely the record or a copy of it, may be re-
quired by the Court to be produced or accounted for {ante, § 1215, post,
§ 1658). (2) The Ecclesiastical Court's grant of letters testamentary to an
executor of a will over which it had jurisdiction, or of letters of administra-
tion on intestate personalty, was a judicial act constituted by the record ; so
that the letters themselves, i. e. the credentials given to the representative,
were merely a copy of the judicial record ; hence, in proving such an ap-
pointment, the Court record became the document to be proved, and for
this purpose a certified copy of the record would suffice, without pro-
dacing the letters, which were themselves legally only a copy of the record.^
This also has been expressly regulated by modern statutes {ante, § 1215, post,
§ 1658).
§ 1239. Same: ((^) Government Land-Grants, Land-Certificates, and Land-
Patents ; Mining Rights ; Recorded Private Deeds. (1) An ordinary deed by
a private party is itself the effective instrument of transfer, even under legis-
1 1726, Gilbert, Evidence, 71 (" The probate ^ 1822, PInmer, M. B., in Cox v. Allingham,
of a will is good evidence as to the personal Jac. 514 ("The thing which it is required to
estate, and tliey are the records of that Court, prove is to whom the Ecclesiastical Court has
and therefore a copy of them under the seal of granted the power of administering the prop-
that Court must be good evidence. . . . [But for erty. The ordinary evidence is the probate;
real estate] he must have the original will, and which is a copy of the will, with a certificate
not the probate only, for where the original under the seal of the Court that probate has
is in being, the copy is no evidence, and the been granted to the executor. It is only the act
probate is no more than a true copy, under the of the Ecclesiastical Court that is to be proved,
seal of the Court, of a private instrument "). Now we have here the original book contain-
^ 1695, Newport's Case, Skin. 431 (a copy of ing the entry of the act of the Court. The
the record of the Ecclesiastical Court was re- probate is only a copy of this act; this is the
ceived to show the contents of a will of person- original and therefore the primary evidence"),
alty; " the act of the Court is the original, and Accord: 1807, Elden v. Keddell, 8 East 187;
the will is proved by the act of the Court, . . . 1826, Lane v. Clark, 1 Mo. 658; 1834, Farns-
and so a copy of the act of the Court is suffi- worth v. Briggs, 6 N. H. 561 (record of tlie
cient ") ; 1696, K. v. Haines, ib. 583 (" A copy Court as to granting administration is the orig-
of a probate of a will where the Court has juris- inal, of which the letters are only a copy) ; 1830,
diction is good, because the probate itself in Jackson i: Robinson, 4 Wend. 436, 442 (records
such case is an original act of the Court") ; of Probate Court are the original, and therefore
1837, Doe v. Mew, 7 A. & E. 240, 233 (the will copies of them are receivable without showing
with a memorandum of the surrogate that the the loss of the letters of administration) ; 1830,
executor had proved the will and probate been Hoskins v. Miller, 2 Dev. 360; 1831, Browning
sealed, admitted irrespective of the probate.it- v. Huff, 2 Bail. 174, 179 (action by adminis-
self). Contra: 1805, Jackson v. Lucett, 2 Cai. trator; the ordinary's record-book sufiBcient, for
363, 367, semble (record of judge of probate is the letter of administration is merely a certificate
secondary). that the order exists).
VOL. n, — 31 1483
§ 1239 DOCUMENTARY OKIGINALS. [Chap. XXXIX
lation making its public registration an additionally necessary element of
validity. It has already been seen that, even where by common-law prin-
ciples or by express statute the deed's contents may be proved by the registry
or a copy of it, still the present rule is always thought of as applying to the
deed itself and its production is merely excused on the ground that it is prac-
tically unavailable, by reason of its proved loss or its possession by another
or the inconvenience involved in requiring it {ante, § 1224). As to other
deeds of transfer than Government land-grants, it is generally accepted that
the party's deed of conveyance is the constitutive document {i. e. the original
to be accounted for), and that the official register is merely a copy of that
original,! though in transfers of mining-rights there occur certain partial
modifications of this principle ^ and the Torrens system of title-registration
may involve decided alterations of this.^
(2) But where the Government itself makes the grant of land, and not
merely furnishes an office for registering the grants of private persons, the
question arises whether the constitutive document of grant (and therefore
the document to be produced or accounted for) is the Government's own
entry or record of the grant, or is the certificate, patent, testimonio, expediente,
or other document delivered to the grantee by the Government as his muni-
ment of title. Herein is involved a question of property-law, not of evi-
dence. The rule of evidence is easily applied, as soon as the question of
property-law is answered. If the first alternative above is taken, the original
and constitutive document being the Government record, not removable from
official custody, it may be proved by a copy therefrom {ante, § 1218) with-
out regard to the whereabouts of the grantee's certificate, which is thus
merely a copy of the official book. If, on the contrary, the latter alternative
above is taken, the grantee's patent, certificate, or other document, is the
original, and the Government book is merely a copy of it, so that the neces-
sity of producing or accounting for the grantee's document depends upon the
rule of the particular jurisdiction adopted for the ordinary case of a recorded
conveyance {ante, § 1225). The answer to this question of property-law
has differed in different jurisdictions, and it would be without the present
purview to examine the reasons for this variance in the results. It is
enough to note that there are three different classes of Government grants
involved, namely, the ordinary land-grants of the Federal and State Govern-
ments (having several sub-varieties — "patent," "scrip," "location," etc.), the
land-grants of the Spanish Government (affecting chiefly titles in Louisiana,
^ 1826, Ewing, C. J., in Fox v. Lambson, 8 14, 16 ; see post, § 2456, where the subject is
N. J. L. 275, 280 (" [The counsel] assimilates it treated from the point of view of the parol evi-
to a coraraou-law record, as for example of a dence rule.
judgment, and because such a record would be * 1859, McGarrity v. Byington, 12 Cal. 426,
evidence he argued that the entry in question 430 (same as next case) ; 1 860, Atwood w. Fricot,
was so. But there is no analogy. The com- 17 id. 37, 42 (record of transfer of mining-right ;
mon-law record is in itself the original and held an original, as showing compliance with
supposes no other in existence. The record regulations, but secondary to the document and
or registry of a deed or other instrument of fact of transfer) ; 1864, St. John v. Kidd, 26 id.
writing is but a copy and presupposes an orig- 263, 270, semble (same),
inal"). Accord: 1886, Brown v. Griffith, 70 Cal. ^ See the statutes cited an(e, § 1225.
, 14S4
§§ 1177-1282]
WHICH IS THE OEIGINAL?
§ 1239
Missouri, and Texas), and the land-grants of the Mexican Government (affect-
ing chiefly titles in Arizona, California, New Mexico, and Texas).*
* Besides the following statutes and prece-
dents directly dealing with the subject, other
statutes and decisions more or less connected
will be found elsewhere ; ( 1 ) on tetters, etc., Jiled
in a public office (ante, § 1219, post, § 1680) ; (2)
on recorded convei/ances in general (ante, § 1225,
post, § 1651) ; (3) on certain record-books of the
land-office (posf, § 1 659) ; (4) oa judicial records
{ante, § 1215, post, §§ 1660, 1681) ; (5) on official
certificates and returns {post, §§ 1672, 1674) ; (6)
on preferred copies of records {post, § 1269); Ala-
bama : Code 1896, § 1812 (patents of the United
States or any State are admitted " without fur-
ther proof") ; § 1813 (land-office certificates, ad-
missible ; register's certified copy of land-office
documents in this State are prima facie evidence
of the facts contained therein) ; 1841, Hines v.
Greenlee, 3 Ala. 73, 75 (certified copy of U. S.
record of land-patent, received without account-
ing for the first patent issued ; Ormond, J. :
"The patent [issued to patentee] is not the
title, but merely evidence ; . . . [the record] is
a public act, and therefore a second patent
which may issue is not a copy of the first, but
is rather a republication of the original");
1872, Jones v. Walker, 47 id. 175, 178, 183
(deed of Federal government-land to plaintiff,
filed at the land-office; production required);
1888, Woodstock Iron Co. v. Roberts, 87 id. 436,
438, 6 So. 349 (transcripts of land-patents; Jones
V. Walker repudiated, since the document is
in official files ; Hines v. Greenlee followed ; the
original is the public record and of coarse can-
not be produced) ; 1889, Ross v. Goodwin, 88 id.
390, 391, 396, 6 So. 682 (same) ; 1893, Beasley
V. Clarke, 102 id. 254, 255, 14 So. 744 (same) ;
1895, Holmes v. State, 108 id. 24, 26, 18 So. 529
(same, for a letter of cancellation of entry) ;
1902, Hammond v. Blue, 132 id. 337, 31 So. 357
(U. S. land-patent or a certified copy is preferred
to a tract book); Alaska: Civ. C. 1900, § 110
(like Or. Annot. C. §3039); Arkansas: Stats.
1894, § 2879 (certified copy, by register or re-
ceiver of land-office of the State, of entries in
books or of papers filed, admissible) ; § 724
(recorder's certified copy of recorded deed of
commissioner of State lands, admissible) ; 1848,
Finley K. Woodruff, 8 Ark. 328, 342 (State land-
office claim-entries, etc., are primary, so that cop-
ies are receivable) ; 1892, Dawson v. Parham, 55
id. 286, 290, 18 S. W. 48 (entries of purchase in
swamp-land-office, receivable) ; 1 893, Steward v.
Scott, 57 id. 153, 158, 20 S. W. 1088 (land-office
entry, seinble, held secondary to the certificate
therefrom in showing title) ; California : C. C.
P. 1872, § 1925 ("A certificate of purchase
or of location of any lands in this State, issued
or made in pursuance of any law of the United
States or of this State, is primary evidence that
the holder or assignee of such certificate is the
owner of the land described therein " ; for the
invalid amendment, see ante, § 488); 1859,
Gregory v. McPherson, 13 Cal. 562, 572, 574
(the grant of land by a Mexican governor,
forming part of the expediente or whole record
of granting, is the original, of which the copy
or certificate to the grantee is only a copy ; a
proof of the former may therefore be made with-
out accounting for the latter ; Mexican grant on
file in U. S. Surveyor-general's office ; examined
copy allowed, there being an inability to re-
move original from office); 1860, Natoma W.
& M. Co. i'. Clarkin, 14 id. 544, 549 (Mexican
grant on file in U. S. Surveyor-general's office ;
production not required, the presence of the
original there being shown, and certified copy
under the statute being used) ; 1861, Soto v.
Kroder, 19 id. 87, 94 (Mexican grant on file in
Surveyor-general's office ; in using an examined
copy at common law, the legal impossibility of
taking the original from the file must be shown ;
but if under the statute a certified copy is used,
the original need not thus be expressly accounted
for) ; 1867, Donner o. Palmer, 31 id. 500, 509
(same as Gregory v. McPherson, for Alcalde's
book of grants) ; 1874, Sill v. Reese, 47 id. 294,
348 (approving Donner v. Palmer) ; 1877, Bixby
V. Bent, 51 id. 590 (translation only, without orig-
inal or certified copy, of Mexican grant on file
in land-office, excluded) ; 1891, Eltzroth v.
Ryan, 89 id. 135, 139, 26 Pac. 647 (U. S. land-
patent ; certified copy from land-office receivable,
without accounting for patentee's certificate) ;
Colorado: Annot. Stats. 1891, § 1748 (U. S.
land-office register's certificate of entry on pur-
chase, admissible, but a patent is to be para-
mount title) ; § 1756 (recorded patent provable
by copy like recorded deed) ; St. 1891, p.
274, § 2 (certified copy of recorded deed of
State land by Governor, admissible) ; Florida :
1886, Liddou v. Hodnett, 22 Fla. 442 (certified
copies of patents from U. S. general land-office,
admitted) ; 1894, Sullivan v. Richardson, 33 id.
1, 98, 14 So. 692 (early Spanish grant; the
grantee's document, on the facts, treated as an
original, and admissible) ; Georgia : Code 1895,
§ 5674 (party's oath that original grant is " not
in his power or possession and that he knows
not where it is," sufficient); 1878, Brown v.
Driggers, 60 Ga. 114, 115; 62 id. 354, 355
(homestead plat given to party is the original,
as against a certified copy) ; Hawaii : Civil
Laws 1897, § 1399 (in proving " any grant of
land, lease, or other conveyance of any Govern-
ment land or real estate, it shall not be neces-
sary to produce the original patent, grant, lease
or conveyance," but a certified copy under the
hand and official seal of the Minister suffices) ;
Idaho: Rev. St. 1887, § 5983 (like Cal. C.
C. T. § 1925); Illinois: Rev. St. 1874, c. 19,
§ 10 (deeds, etc., affecting land by trustees of
Illinois and Michigan canal or canal commis-
sioners, provable by certified copy of record ) ; § 1 1
(books and entries of sale by the same, provable
by certified copy under official seal of secretary
of commissioners) ; c. 30, § 41 (St. 1879, May
29) (on affidavit by party or agent that " the
required U. S. patent conveying or concerning
the title to the lands " in question " is lost, or
not in the power of the party wishing to use it
on such trial of any such case, and that to the
best of his knowledge said patent was not in-
1485
§ 1240
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
§ 1240. Same : (e) Tax-lists, Ballots, Notarial Acts, and Sundry Documents.
Similar questions, depending wholly on some principle in another branch of
tentionally destroyed, or lost, or in any manner
disposed of for the purpose of introducing a
copy thereof in place of the original," and if the
original has heen recorded with the county re-
corder, then the record or recorder's certified
copy is admissihle) ; c. 51, § 20 (U. S. land-
office register's certificate of entry on purchase
of any tract of land iu his district, admissible) ;
§ 21 (land-patent to be paramount title than
register's certificate) ; § 22 (where State land
has been sold and Governor's patent issued, and
" said patent has been or shall purport to he
recorded" in the county "and said patent shall
be lost, or out of the power of the party desiring
to use the same to produce in evidence," re-
corder's certified copy is admissible to prove
issuance and contents of patent ; rule to apply
to U. S. land patents and certain canal deeds) ;
§ 23 (certified copy by custodian of " book and
entries" of sale of State lands, admissible;
certificate of purchase or issuance of patent
admissible, bnt patent is to be paramount title;
custodian's certified copy of " books and entries "
of sales of swamp and overflowed lands, ad-
missible ; officer's certificate of sale or entry
thereof and execution of deed therefor, admis-
sible in place of deed, " if the original deed be
lost, or it be out of the power of the party
wishing to use the same to produce it in evi-
dence, and such original deed has never been
recorded " ; and whenever both the deed is lost,
etc., and the booiss of sale, etc., " have also been
lost or destroyed," and a proper return of such
sales has been made to the auditor of public
accounts, the auditor's, certified copy under offi-
cial seal of such return is admissible) ; c. 122,
§ 265 (recorded State patent for school lands,
provable by certified copy) ; § 266 (" duplicate
copies " of such certificates of purchase and
patents, olitained after affidavit of " loss or de-
struction of the originals," admissible); 1844,
Graves v. Bruen, 6 111. 167, 172 (an auditor's
patent to public land; copy from the record in
case of loss not receivable ; duplicate patent
necessary) ; 1855, Lane v. Bommelmanu, 17 id.
95 (land-patent; original need not be produced
because a public record) ; 1861, Lee v. Getty, 26
id. 76, 80 (land-office record or recorded paper;
provable by exemplification) ; 1868, Huls v.
Buntin, 47 id. 396, 397 (patent lost ; certifii'd
copies of the land-office books of entry, admis-
sible) ; 1883, Wilcox v. Jackson, 109 id. 261, 265,
(" halt-breed scrip " and locations under it) ; 1 886,
Gormley v. Uthe, 116 id. 643, 649, 7 N. E. 73;
(land-office records proved bv exemplified copy) ;
Indirina: Rev. St. 1897, §§ 475, 477, 481 (records
of U. S. land-office or office for sale of Canal or
Michigan road lands, provable by certified
copies by keeper or State Secretary or auditor) ;
§ 482 (State or Federal patents of Indiana land,
and record thereof, and certified copies, admis-
sible) ; 1838, Smith v. Mosier, 5 Blackf. 51, 53
(U. S. land-office patents ; original must be ac-
counted for; affidavit filed in local land-office,
not being removable, copy admissible) ; 1842,
Kawley v. Doe, 6 id. 143 (first point of preced-
ing case followed); 1847, Stephenson v. Doe, 8
id. 508, 512 (same; but doubting for the case
of a non-patentee offering the recorded copy) ;
Iowa: Code 1897, § 4633 (U. S. land-patents
recorded in county, provable by recorder's cer-
tified copy) ; 18.53, Stone v. McMahan,4 Greene
72 (land-office receiver's duplicate receipt is an
original under the statute) ; 1858, Curtis v.
Hunting. 6 la. 536 (recorded land-patent ; orig-
inal required) ; 1880, Chicago, B. & Q. R. Co. v.
Lewis, 53 id. 101, 107, 4 N. W. 842 (certified
copies of land-office selections, admitted) ; Kan-
sas: Gen. St. 1897, c. 97, § 9 (certified copy, by
register or receiver having custody, of papers
lawfully deposited with U. S. land-office in the
State and of official communication thereto from
any Federal department, admissible like the
original) ; § 13 (certified copies under official
seal by register of deeds of U. S. land-patents
recorded in county, admissible) ; Louisiana :
Rev. L. 1897, § 1445 (recorded land patent or
register's certificate, or receiver's receipt, by
officers of Louisiana or of general Government,
provable by recorder's certified copy ; provided
the party " make affidavit that the original of
such patent or certificate is not in his possession
or under his control," and opponent may dispute
genuineness) ; 1823, Roman v. Smith, 1 Mart.
N. s. 473 (whether the Spanish Governor's decreto
or his grant was an original delivered to the
grantee, or whether the offii'ial record of it was
the original) ; 1836, Montreuil e. Pierre, 9 La.
356, 37 i (Spanish notary's original, register, and
traslado, examined) ; 1836, Vidal v. Duplantier,
ib. 525 (Spanish testimonio) ; 1841, Lavergne v.
Elkins, 17 id. 220 (Spanish land-grant) ; 1859,
Beauvais v. Wall, 14 La. An. 199 (title-deeds
filed in land-office ; production not required) ;
Maryland : Pub. Gen. L. 1888, Art. 35, § 52 (land-
office commissioner's certified copy under seal
of any patent, certificate, entry in book de-
posited, or paper filed, admissible) ; § 53 (same
for certificate in land-office with surveyor's
notes, etc. ; admissible " as if it were the orig-
inal paper and proved to be " in the surveyor's
writing and the surveyor proved dead) ; Michi-
gan: (;omp. L 1897, § 8984 (land-patent prov-
able by certified copy of record); § 10197
(documents, etc., filed or recorded in U. S. land-
office in Michigan, provable by register's or
receiver's certified copy) ; § 1270 (same for Sec-
retary of State's certified copy under seal of
Federal approval of land selections) ; § 1377
(same for his copy of land-patents for internal
improvements) ; 1856, Lacey v. Davis, 4 Mich.
140, 150 (certiiied copy of U. S. land-patent,
received where the original was lost) ; 1876,
Bradley v. Silsbee, 33 id. 328 (land-patents re-
corded in office of Secretary of State ; original
required, because not authorized to be so re-
corded) ; Minnesota : Gen. St. 1894, § 3963 (land-
office record of patents, etc., or certified copy,
admissible) ; § 5753 (receipt or certificate of reg-
ister or receiver of any U. S. land-office as to
entry, purchase, or location, to be evidence of
title) ; § 5754 (certificate of register or receiver
148Q
§§ 1177-1282]
WHICH IS THE OEIGINAL?
§1240
the law, are to be noticed in various directions. For example, whether the
tax list or assessment-roll as drawn up by the assessor or as placed in the hands
of any U. S. land-office within this State, as to
entry under homestead, etc., laws, to be prima
facie evidence of ownership) ; § 5756 (U. S.
patents of land in this State, or duplicates from
U. S. general land-office, recorded in county
registry of deeds, provable by record or certi-
fied copy by register, like other conveyances
of realty) ; § 5758 (survey -plats, provable by
certified copy by register of land-office) ; Miss-
issippi: Annot. Code 1892, § 1782 (certificates
issued by authorized person, in pursuance of
Act of Congress, founded on warrant, etc., from
U. S., of land in this State, admissible) ; § 1784
(copies from books of land-entries " kept in any
land-office in this State, or in the office of the
Secretary of State, or land-commissioner, or
other public office," certified by the officer hav-
ing charge, admissible like the original cer-
tificate or entry) ; 18.38, Doe v. M'Oaleb, 2 How.
Miss. 756, 767 (land-office certificate ; original
must be accounted for) ; 1 839, Wooldridge v.
Wilkins, 3 id. 360, 367 (land-patent at registry
must be produced, by subpCBna if necessary ; but
entries in the registry-books, provable by copy) ;
1846, Sessions v. Reynolds, 7 Sm. & M. 130, 152
(land-office certificate; copy allowed); 1896,
Boddie v. Pardee, 74 Miss. 13, 20 So. 1 (as
between the original certificate of entry of
public land and a certified copy of the book
of entries, there is under Code §§ 1782-1784 no
preference for the former; both being merely
copies of the entry which determines the title) ;
Missouri: Rev. St. 1899, §3104 (confirmations
before commissioners of land claims or recorder
of land titles, provable by certified copy by
recorder or by lawful custodian) ; § 3105 (cer-
tificate of record of land-titles for New Madrid
earthquake sufferers, and " all other books and
papers " required to be kept in his office, prov-
able by his certified copy) ; § 3107 (grants, etc.,
in " Livre Terreiu," and other French or Spanish
records and evidences of title lawfully deposited
with recorder of land-titles, provable by his
certified copy) ; § 3121 (letters from U. S. land
department, land commissioner's lists of land,
etc., recorded by register of lands, provable by
register's certified copy) ; § 3122 (certain ancient
archives of French or Spanish Government,
affecting land-titles, and deposited with St. Louis
recorder, provable by certified copy) ; § 8248
(certified copy of record swamp-land-patent, ad-
missible) ; § 9078 (county recorder's certified
copy under official seal of recorded land-patents,
admissible) ; 1838, Waldo v. Russell, 5 Mo. 387,
394 (land-patent, proved by copy) ; 1858, Barton
V. Murrain, 27 id. 235, 237 (patent in land-office,
provable by certified copy)'; 1879, Avery v,
Adams, 69 id. 603. 604 (land-office patent by
certified copy; original need not be accounted
for) ; Montana: C. C. P. 1895, § 3213 (like Cal.
C. G. P. § 1925); Nebraska: Comp. St. 1899,
§ 4133 (certificates, patents, etc , of U. S. land-
office, locally recorded, provable by certified
copy of register of deeds); § 4155 "(same for
county clerk's copy of certain patents) ; § 5985
(certificate of land-office receiver as to sale to
individual, admissible if duplicate receipt is
lost or destroyed ; but is not proof of title
against the holder of actual patent); New York:
1832, Peck v. Farrington, 9 Wend. 44 (original
Federal patent need not be produced) ; Ohio:
Eev. St. 1898, § 4115 (auditor's certified copy of
State deed, admissible if the deed is "lost or
destroyed by accident ") ; Oklahoma : Stats. 1893,
§ 4273 ('"The usual duplicate receipt of the
receiver of any land-office," or, if that be lost or
destroyed or beyond the reach of the party, the
receiver's certificate that the books of office
show a sale, is proof " equivalent to a patent
against all but the holder of an actual patent ") ;
§ 4274 (certified copy, by register or receiver of
TJ. S. land-office in this Territory, of papers
lawfully there deposited and of official com-
munication there received from any department
of U. S. Government, admissible ) ; Oregon : Code
1892, § 3039 (record or certified transcript of
duly recorded land-patent, admissible like the
original) ; Pennsylvania: St. 1833, P. & L. Dig.
Evid. 33 (record of patents for donation lands,
receivable) ; St. 1828, ib. Evid. 30 (deeds duly
recorded in the lard-office, though not in the
proper county, provable by exemplification) ;
1835, DeFrance v. Strieker, 4 Watts 327, 328
(land-patent ; copy of the register " in a contest
with a party not claiming under the original,"
receivable); 7'ennessee: 1813, Duncan «. Blair,
2 Overt, 213 (certified copy of warrant contain-
ing land entry; the recorded entry, not the
party's location for the entry, is the original) ;
1899, State v. Cooper, — Tenn. Ch. — , 53
S. W. 391 (certificate of survey of land-grant,
not required to be produced; affidavit of loss
required, but not strictly dealt witli ; affidavit
of a single party suffices; the opinion contains
a detailed history of the land-grant laws in
Tennessee) ; Texas : all the ensuing cases, except
the last, deal with the Spanish testimonio and
related documents; 1844, Smith t. Townsend,
Dallam 569 (leading case) ; 1848, Houston v.
Perry, 3 Tex. 390, 393; 5 id. 462, 464; 1851,
Lewis V. San Antonio, 7 id. 288, 311 ; 1851,
Hemdon v. Casiano, ib. 322, 332; 1851, Paschal
II. Perez, ib. 348 (leading case) ; 1852, Titus v.
Kimbro, 8 id. 210, 212 (leading case) ; 1852,
Hubert v. Bartlett, 9 id. 97, 102 ; 1853, Wheeler
V. Moody, ib. 372, 375 ; 1856, Byrne k. Fagan,
16 id. 391, 398; 1859, Nicholson v. Horton, 23
id. 47; 1860, Word v. McKinney, 25 id. 258,
268; 1876, Blythe v. Houston, 46 id. 65, 77;
1877, State v. Cardinas, 47 id. 250, 286, 290;
1878, Gainer v. Cotton, 49 id. 101, 114; 1883,
Houston V. Blythe, 60 id. 506, 513; 1886, Ney
V. Mumme, 66 id. 268, 17 S. W. 407 (laud-
patent); United States: 1831, Doe v. Winn, 5
Pet. 233, 241 (exemplification under Georgia
State seal of land-patent there recorded, ad-
mitted ; Johnson, J., diss. ; see quotation ante,
§ 1224) ; 1833, U. S. v. Perchemau, 7 id. 51, 78,
84 (certified copy of Spanish laud-grant, receiv-
able, because the original decree is not issued
but retained ; the " copy is, in contemplation of
law, an original ") ; 1833, Minor v. Tillotson, ib.
1487
§ 1240
DOCUMENTARY aRIGINALS.
[Chap. XXXIX
of the collector, is the original to be proved, depends on the theory of tax-
law.^ Whether the ballots cast at an election, or the certificate of the elec-
tion-officers, is to be regarded as the proper object of proof in establishing
the result of an election, involves the theory of election-law.^ The tradi-
tional doctrine of notarial acts is that the notary's book-entry is the original
act, and that hence the protest-copy first sent need not be produced.^ In
99 (land-grant in Louisiana; grant to patentee
the original to be accounted for) ; 1840, U. S. v.
Wiggins, 14 id. 334, 345 (certified copy of Span-
ish land-grant iu Florida, received without
accounting for the original); 1858, U. S. v.
Sutter, 21 How. 170, 174 (Mexican land-grant
in California ; official record apparently treated
as a copy; opinion obscure); 1860, U. S. «.
Castro, 24 id. 346, 349 (" When therefore a
Sarty claims title to lauds iu California under a
lexican grant, the general rule is that the
grant must be found in the proper office among
the public archives ; this is the highest and best
evidence " ; and accordingly the existence and
loss of this public record must be shown ;
" written documentary evidence, produced by a
claimant from a private receptacle" is not
equivalent) ; 1902, Carr Land & L. S. Co. v.
U. S., 55 C. C. A. 433, 118 Fed. 821 (a tract
book prepared by the commissioner of the gen-
eral land-ofiice to replace the burned local rec-
ords, and proved by the local register to be
u.sed as such, is not a copy which must be certi-
fied by the commissioner under U.S. Rev. St.
§ 2469); Utah: Rev. St. 1898, § 3398 (like
Cal. C. C. P. § 1925); Virginia: 1796, Lee v.
Tapscott, 2 Wash. 276 (attested copy of land-
patent recorded in County Court, admitted,
without production of land-register or other
books, here the date being old and possession
having followed ; Lyons, J., diss.) ; Washington :
1860, Ward v. Moorey, 1 Wash. Terr. n. s. 104
(land-ofiBce papers, proved by certified copies) ;
Wisconsin : Stats. 1898, § 4151 (any record, etc.,
of purchase or entry of land in U. S. general
land-ofiice or land-ofiice located in this State,
provable by certified copy by secretary of the
interior, commissioner of the general land-ofiSce,
or register of the land-office "respectively, hav-
ing the custody thereof") ; § 4151 a (certified
copy of document, etc., lawfully kept in office
of commissioners of public lands in this State,
admissible) ; § 4152 (lists of land certified as
conveyed to the State by the President, the head
of any department of the U. S. Government, the
commissioner of the general land-office, or " any
other officer of the Government," admissible) ;
§ 4165 (receiver's certificate of purchase of
public lands, and official certificate of entry,
etc., by any register or receiver, admissible to
show title); W Homing : Stats. 1890, c. 76, § 3
(if the certificate of purchase or payment by
any land-office receiver be " lost or destroyed or
beyond the reach of the holder, secondary evi-
dence of its contents is proof of title to the lands
tlierein described, equivalent to a patent against
all, except the United States or a holder of a
patent from the United States").
1 See the following examples : 1836, Coman v.
State, 4 Blackf. 241, 243 (assessment-roll is the
1488
original, as against the collector's transcript) ;
1884, Standard Oil Co. v. Bretz, 98 Ind. 231,
235 (tax- list duplicate ; " each of the lists has
all the force and effect of an original instru-
ment ") ; 1886, Clayton v. Khem, 67 Tex. 52,
2 S. W. 45 (assessment-roll) ; 1885, Battin v.
Woods, 27 W. Va. 58, 63, 72 (official list of
lands redeemed from tax-sales ; tax-receipts
not held originals; Johnson, P., diss.). For
the admissibility of the assessor's books, see
post, § 1640. For testimony to the fact of an
entry in such books, see post, § 1244.
Compare the statutes allowing certified copies
(post, § 1680), and the parol evidence rule (post,
§ 2427).
2 1898, Pusch V. Brady, — Ariz. — , 53
Pac. 176 (oral testimony to contents of ballots
not pi'oduced, not admissible); 1866, Wheat v.
Eagsdale, 27 Ind. 191, 205 (ballot must be pro-
duced, if it is in existence and can be identified;
otherwise, the voter may be asked for whom he
voted ; " we are aware that this course of ex-
amination would most probably be of but little
practical importance, as but few voters would
likely be able to identify their ticket ; but,
when insisted upon, it would be tlie proper
course of examination, as being in conformity
with the strict rules of evidence"); 1878, Key-
nolds V. State, 61 id. 392, 416, 424 (when pre-
served according to law, production required;
certificate of canvassers is not sufficient, nor
oral testimony of voters, as a substitute) ; 1892,
Crabb v. Orth, 133 id. 11, 32 N. E. 711 (that
the witness, a minor, voted for A ; production
of ballots unnecessary) ; 1880, Warren v.
McDonald, 32 La. An. 987, 990; 1869, Sinks
V. Reese, 19 Oh. St. 306, 319 (testimony by
candidate and others that by counting ballots
he had found errors in the returns ; ballots, poll-
book, and tally-sheet, required to be produced).
For the questions whether the results shown by
the ballots are to override the official canvass,
or whether the official canvass may be disputed
by testimony of other persons, see post, §§ 1351,
2452. For the question whetlier a voter may
testify orally to his vote, in spite of the parol
evidence rule, see post, § 2452.
3 1851, Geralopnlo v. Wieler, 10 C. B. 690,
712 (" the general rule with respect to notarial
instruments, that a duplicate made out from the
original — or protocol — in the notarial book, is
equivalent to an original made out at the time
of the entry in the book " ; here admitting a
duplicate protest made after trial begun, in-
stead of requiring secondary evidence of the
one sent abroad at the time) ; 1851, Phillips v.
Poindexter, 1 8 Ala. 579, 582 (original protest is
the entry in notary's book, which is an official
book, and therefore a copy of this may be re-
ceived without accounting for the protest issued
§§1177-1282] WHICH IS THE OEIGINAL? §1242
these, and in similar cases depending on some principle of another depart-
ment of law,* no question of evidence is raised, for the application of the rule
of evidence is simple enough when the other principle of law has been
decided.
§ 1241. (4) Records, Accounts, etc., as Exclusive Memorials under the
Parol Evidence Rule. By the principle of Integration or Parol Evidence
(^post, § 2425), a particular writing becomes under certain circumstances
the exclusive repository of a transaction, superseding all other writings and
rendering them legally immaterial. It follows that in proving the trans-
action this integrated document, or exclusive memorial, is the one, and the
only one, to be produced or accounted for ; the production of no other will
suffice. Here, again, as in the two preceding groups of cases (§§ 1235, 1236),
there is no controversy about the present rule of evidence ; the rule applies
to whatever document is declared by the substantive law to be the one mate-
rial to the issue, and when the substantive law declares that a specific docu-
ment is the sole material one and that others are worthless, the rule of
production plainly applies to the former. Thus, the problem involved is one
of the Parol Evidence rule, not of the present rule. The question arises
chiefly in two sorts of cases: (a) The law sometimes requires integration,
i. e. makes a certain writing the exclusive memorial. The chief represent-
ative type of this class is the judicial record. The -question thus arises
whether, for example, a clerk's docket-book is the record and may be pro-
duced instead of the judgment-book, or whether an original writ is the rec-
ord in the same sense.' (6) By act of the parties an integration may occur,
i. e. the transaction may be embodied in a single written memorial, to the
exclusion of all others ; and then, in proving the transaction, the former
must be produced, but the latter cannot be.^
(e) "Whenever the purpose is to establish its Terms."
§ 1242. General Principle ; Facts about a Document, other than its Terms,
provable without Production. (1) The fundamental notion of the rule re-
by him to the parties) ; 1857, McFarland v. Pico, original) ; 1888, Lycoming F. I. Co. v. Wright,
8 Cal. 626, 635 (certificate of record of protest 60 Vt. 515, 521, 12 Atl. 103 (insurance license;
equally good with the original). Compare the no„ law requiring a record of it, the license
statutes dealing with the admissibility of the itself is the original) ; 1886, Singer «. Bennett,
notary's protest (post, § 1675). 28 W. Va. 16, 22 (original and duplicate of
In Louisiana, for sales, the notary's record agreement of incorporation filed in separate
has perhaps a peculiar status: 1902, Hodge v. State offices are both originals).
Palms, 54 C. C. A. 570, 117 Fed. 396 (Louisiana Compare the statutes admitting c«!-<(^crfco;)«s
notary's copy of his record of an "act of sale" of public records (post, § 1680); the rule for
is a duplicate original; compare the cases cited conclusive registers or certificates ( post, § 1352) ;
ante, § 1225). and the parol evidence rule as applied to official
* 1824, Salte v. Thomas, 3 B. & P. 188 (to documents (post, §§ 2427, 2453).
show the cause of a commitment to prison, an ^ These questions are dealt with post, § 2450.
entry in the prison books, held merely a copy of ^ Questions of this sort are dealt withjoos«,
the warrant of committitur, which was the true §§ 2427, 2429 ; though occasionally it is difiicult
original); 1897, Long ti. McKissick, 50 S. C. 218, to distinguish whether the principle involved
27 S. E. 636 (the sheriff's sale-book, and not the is that of Parol Evidence or of § 1235, ante, for
preliminary memorandum made at the sale) ; example, where it is asked whether a deposit-
1826, Catlett v. Ins. Co., 1 Paine C. C. 594, 612 ticket or a pass-book is the document to be
(certified copy of ship's register ; register the proved in showing a deposit received.
1489
§ 1242 DOCUMENTARY ORIGINALS. [Chap. XXXIX
quiring production is that in writings the smallest variation in words may
be of importance, and that such errors in regard to words and phrases are
more likely to occur than errors in regard to other features of a physical
thing {ante, § 1181). Thus the rule applies only to the terms of the document,
and not to any other facts ahout the document. In other words, the rule
applies to exclude testimony designed to establish the terms of the docu-
ment, and requires the document's production instead, but does not apply
to exclude testimony which concerns the document without aiming to estab-
lish its terms :
1826, Mills, J., in Lamb v. Moberly, 3 T. B. Monr. 179 (allowing proof of the fact of
purchase of a note, without production) ; " We cannot agree . . . that the production of
the note was necessary. It could only be held -necessary by not attending to the distinc-
tion between proving the ezistenoe and contents of a note and the sale of a note. Of the
former, the note is the better evidence; but of the latter the note furnishes no evi-
dence. . . . The existence of a note is as certainly perceived by the senses or acknowl-
edged in conversation as that of any other article of commerce ; and it might as well be
urged that before the acknowledgments of a sale of any other article could be given in
evidence the article itself must be produced in court in order that the Court might see
that it really existed, as that a note thus sold should be produced."
1839, Green, J., in Enloe v. Hall, 1 Humph. 303, 310 (assumpsit for services in print-
ing and publishing advertisements in a newspaper; production of the paper not re-
quired) : " The work and labor for which this suit is brought was done upon the paper.
... As well might the tailor be required to produce the coat or the watch-maker the
watch as evidence that the work had been performed."
This much is generally accepted ; the difficulty arises in applying the prin-
ciple to specific cases. Testimony about a document cannot go very far
without referring to its terms, and the instances in which some other fact
about a document is material, and yet its terms are clearly not, are so few
that in the other situations the natural tendency of Courts is to lean in
favor of requiring production; since production would have to be made
sooner or later in proving the terms as a material part of the issue. The line
between testifying to terms or contents and testifying to other facts is not
only thus difficult to draw in a given case, but its determination tends to be-
come a matter of merely logical subtlety and verbal quibbling. There seems
to be no way of invoking in its settlement any broad notion of policy definite
enough to be useful in solving a given case. Moreover, apart from a few
general classes of instances, the rulings depend generally upon the particular
state of facts presented in each case and changing slightly in each instance,
so that the rulings are generally of little profit as precedents.
(2) Besides this, the concurrent oJ)eration of the principle of Integration,
or Parol Eoidence (post, § 2429) has frequently to be distinguished. By
that rule the oral part of a transaction may be legally annulled and made
immaterial ; so that though the oral part could be proved, so far as the
present principle is concerned, without production, yet by the Integration
rule the oral part is declared immaterial and ineffective and cannot be proved
in any manner, so that the document becomes the exclusive transaction and
1490
§§ 1177-1282] RULE NOT APPLICABLE. § 1243
must be proved and therefore produced. For example, the fact that a sheriff
has served a writ or has read it aloud to the party is a fact separate from
the terms of the document, and could therefore be proved without production
of the writ, so far as the present principle is concerned ; but, so far as the
Parol Evidence rule declares that the sheriff's indorsement of service on the
writ is the sole memorial of the act, the oral doings become immaterial, and
in proving the act, the terms of the writing must be proved, and therefore
production is necessary. In the same way, so far as the law does not recog-
nize an oral transfer of land, the terms of the written document may alone
be proved ; and, so far as the parties to any contract have voluntarily
embodied it in a single writing, the writing alone, and no oral matters ac-
companying it, may be proved. Thus, in these cases, and in many other
instances to be noted, the present principle would allow proof of an oral
statement without producing a document concerned in it, and the require-
ment to produce the document is due solely to the operation of the Parol
Evidence rule, which forbids the oral matter to be proved at all. The opera-
tion of the latter rule should not mislead us to attribute the result to any
exception to the present principle or to an inconsistency in the judicial
application of it.
(3) For the reason just noted, the controversy that often arises as to who
shall produce a contract, is usually dependent in the same way on the Inte-
gration (or Parol Evidence) rule, and not on any doubt as to the present
principle. For example, A sues B for work done on B's house, and upon the
cross-examination of A's witness or upon the examination of B's witness, it
is testified that the contract for the work was reduced to writing by the par-
ties, and the question then arises which party shall produce it; for the party
whose duty it is to produce it can go no further in his proof of the contract's
terms without producing or accounting for it. In form, this is a question
under the present rule ; in reality, it is not. The question really is, under
the Parol Evidence rule, whose duty it is to prove the contract to have been
integrated, i. e. reduced to writing ; is it the duty of the claimant alleging
performance, or of the opponent alleging non-performance ? So soon as this
question as to the duty to prove the integration is settled, the present rule
comes into application without any question, i. e. if it is A's duty to prove
the writing, of course it is A who must produce or account for it, and vice
versa. This question is therefore dealt with elsewhere {post, § 2447).
§ 1243. Application of the Principle ; (1) Oral Utterances accompanying
a Document read or delivered ; (2) Document as the Subject of Knowledge or
Belief. (1) When an oral utterance accompanies a dealing with a document,
and assuming that the oral utterance is not forbidden to be proved, by the
Parol Evidence rule (as noted in the preceding section), the oral utterance
may be proved as a separate fact, without producing the document :
1808, Ellenborough, L. C. J., in Smith v. Young, 1 Camp. 439 (proof of a demand, in
an action of trover, was oral, the ■witness stating that he had both orally demanded and
also in writing served notice) : " I may do an act of this sort doubly. I may make a
1491
§ 1243 DOCUMENTAEY ORIGINALS. [Chap. XXXIX
demand in words and a demand in writing ; and both being perfect, either may be proved
as evidence of the conversion. If the verbal demand had any reference to the writing,
to be sure the writing must be produced ; but if they were concurrent and independent,
I do not see how adding the latter could supersede the former or vary the mode of
proceeding."
1875, Tillon v. Beecher, Abbott's Rep. I, 389: Witness for plaintiff: " [Mr. Tilton had
written the story of the whole affair for publication and wanted Mr. Beecher to hear it
before publication,] and Mr. Tilton said to Mr. Beecher, ' I will read to you one passage
from this statement, and if you can stand that, you can stand any part of it,' and he read
to him a passage from that statement, which was about as follows as nearly as I can
recollect"; Mr. Evarts, for defendant: "The statement will speak for itself"; Mr.
FuUerton, for plaintiff : " What did he read 9" ; Mr. Evarts : " We want that paper and
the part of it that was read, as it appeared in that paper, and it is not competent to recite
out of a written paper by oral proposition what the written paper is the best evidence
of"; Mr. FuUerton: "I propo.se to show what communication was made by Mr. Tilton
on that occasion to Mr. Beecher; I do not care whether it originated in his own mind,
or whether it was read from a paper, printed or written ; it makes no difference ; what it
was that he said to him is what I have a i-ight to " ; Judge Neilson : " I think the wit-
ness can state what was said to Mr. Beecher, although he stated matter that had been
incorpoi-ated in writing."
This result is illustrated in a variety of cases.^
(2) Where a persoa's knowledge or belief about a document is material, the
knowledge or belief may be shown as a fact separate from the document's
terms, without producing it.^
§ 1244. Same : (3) Identity of Document; (4) Summary Statement of Tenor
of Multifarious Documents ; Absence of Entries. (3) Where a document is
referred to as identical with or the same as another document, or as helping
to identify some transaction or some other physical object, the question is a
^ 1801, Jacob V. Lindsay, 1 East 460 (to 749 (fraudulent transfer to creditor; to show an
prove a defendant's admission of indebtedness, admission, a witness was allowed to testify to the
a witness was allowed to testify that he had words of the defendant wlio took up a letter and
taken the account-book to the defendant, gone read it to the witness, the thing to be proved
over the items with him, and heard the defendant being not the contents of the letter, but " what
admit the receipt of each one; the book could the defendant stated to him to be the contents"),
not be produced, being without the required For other questions arising in such cases as
stamp; production held not necessary); 1820, R. v. Hunt, supra, where a printed document is
E. V. Hunt, 1 State Tr. N. s. 171, 252 (sedition ; concerned, compare ante, §§ 1233-1235, § 415.
resolutions read at a meeting; piinted copy veri- ^ 1816, Wyatt i'. Gore, Holt N. P. 299, 303
fied as correctly giving what was read, allowed (in proving previous currency of similar rumors
without producing the writing actually read); in mitigation of damages for libel, the fact of
1820, R. y. Dewhurst,ib. 529, 558 (sedition; reso- their circulation iu a newspaper was offered;
lutions read from a paper ; objection of no notice production not required) ; 1 897, Kearney v. State,
overruled; Bayley, J., "No; that has been de- 101 Ga. 803, 29 S. E. 127 (whether a witness
cided over and over again ; though a man reads knew of a document affecting her interest, ad-
from a paper, a person may give an account of mitted without production) ; 1874, State v.
what he hears him say"); 1839, Tiewliitt v. Cohn, 9 Nev. 179, 188 (over insurance as motive
Lambert, 10 A. & E. 470 (the plaintiff read from for arson; amount of insurance which insured
a writing, and the defendant assented, not see- believed he had, shown without production of
ing the writing ; held, that the oral transaction policies); 1897, ScuUin v. Harper, 24 C. C. A.
might be proved) ; 1869, First Nat'l Bank i: 169, 78 Fed. 460 (issue as to good faith in mak-
Priest, 50 111. 321 (that a cashier, asked for re- ing a charge against an employee; the charge
turns of sales, showed the plaintiff an account of having been made after reading a record in a
sales ; production not required ; tlie tliiiie proved time-book, held that the book need not be pro-
being "the answer made to the inquiry ) ; 1852, duced to show what was read).
Glenn v. Rogers, 3 Md._ 312, 321 (a written Contra: 1844, Com. v. Bigelow, 8 Mete. 235
demand for payment, delivered by messenger, (conversation about a bill to show the defendant's
production required, since no oral demand ac- knowledge of its counterfeit character ; rule ap-
companied it) ; 1873, Paige u. Loring, Holmes plied to require production of the bill).
1492
§§ 1177-1282]
EULE NOT APPLICABLE.
§ 1244
difficult one ; and the ruling will depend upon whether in the case in hand
greater emphasis and importance is to be given to the detailed inarks of
peculiarity or to the document as a whole regarded as an ordinary describable
thing :
1845, Lawrence v. Cla7-k, 14 M. & W. 250, 252 ; plea of fraud, to an action on a bill of
exchange ; to identify the bill spoken of as fraudulent, the bill was required to be pro-
duced; Pollock, C. B. : " The diflBculty is, how do you prove the identity but by the con-
tents'!"' ; Rolfe, B. . "You want to show that when a certain writing took place on a
certain piece of paper, certain concomitant circumstances attended it; but then you must
show it to be the same writing, as that which is stated on the record."
There is here naturally some inconsistency in the rulings.^
(4) Where the total balance of accounts is desired to be stated, as by testi-
mony to a person's solvency, or to a year's total sales, or to a year's aggregate
profits, it is possible to regard the net result as something independent of
the detailed terms of the account-books, and therefore provable without pro-
duction ; though there is here room for much difference of opinion.^ But
the fact that a specific entry or item exists or was made may directly involve
the terms of the document so far at least as the fact of the entry can be dis-
tinguished from a status or relation produced by it.^ On the other hand, the
1 1867, R. V. Elworthy, 10 Cox Cr. 579 (per-
jury in stating that there was no draft of a cer-
tain statutory declaration ; the identity of the
draft so sworn to became material, i. e. which of
two drafts was referred to; for proving the
contents of a document said to be the draft in
question, the rule was held applicable; Bram-
well, B. : " If the only question had been as to
the existence of a draft, the point would not
have arisen ; but it was thought fit to give evi-
dence of the contents of it," and so " the general
rule applies") ; 1869, Peterson v. Gresham, 25
Ark. 380, 386 (to identify a quantity of cotton,
evidence that a receipt for thirty-six bales had
been given was admitted, without producing the
receipt) ; 1879, Lingenfelser v. Simon, 49 Ind.
82, 89 (identification of note ; production not re-
quired) ; 1885, Sunberg v. Babcock, 66 la. 515,
24 N. W. 19 (whether an invoice seen was the
same as that in controversy; production re-
quired) ; 1900, Myers' Estate, 111 id. 584, 82 N.W.
961 (identification of letters; production not re-
quired) ; 1867, Higgius v. Carlton, 28 Md. 135
("whether the memorandum differed from the will
in any other respects'? " excluded) ; 1857, New-
comb V. Noble, 10 Gray 47, semble (that a horse
at a place was the same one described in a mort-
gage ; production of the mortgage not required
merely for this purpose) ; 1 845, St. Louis P. Ins.
Co. V. Cohen, 9 Mo. 416, 439 (possession of a
paper ; it may be described to identify it with-
out production) ; 1 849, West v. State, 22 N. J. L.
212, 238 ("the witness had sworn that he be-
lieved that the deed in question was not identical
with a deed which had been previously seen by
him," describing the differences; production not
required, because " it was a simple question of
identity or diversity") ; 1861, Gilbert v. Duncan,
29 id 133, 139 (whether the note sued on or an-
other was agreed to be given ; production of the
1493
other not required) ; 1862,^oucicault v. Fox, 5
Blatchf. 87, 91 (copyright; whether the inci-
dents of a drama were the same as those of a
book; production of the book and the play
required).
" 1791, Roberts v. Doxon, Peake 83 (one who
had seen the accounts ; " though he could not
state the particulars of the books without pro-
ducing them, yet he might speak to the general
amount; . . . what from his general observa-
tion he perceived to be the general state of their
accounts ") ; 1864, Stratford v. Ames, 8 All. 577
(amount of a bill rendered ; production required) ;
1882, Steketee v. Kimm, 48 Mich. 322, 325, 12
N. W. 177 (aggregate amount of sales, allowed
without producing the books); 1827, Pipher u.
Lodge, 1 7 S. & R. 214, 226, per Rogers, J. (" The
proof of the state of a person's pecuniary affairs
is general in its nature; ... it never was re-
quired that you should show a bill of sale for his
personal property or the title-deeds of his real
estate"); 1898, Murdock v. Mfg. Co., 52 S. C.
428, 29 S. E. 856 (profits of a mill, as based on
the books of the mill; production required).
For solvency testimony, as affected by the opinion
rnle, see post, §§ 1957, 1959. For dispensing
with the production of voluminous accounts, see
ante, § 1230. For accounts as subjected to the
Integration rule, see post, § 1429 ff.
3 1801, R. V. CoppuU, 2 East 25 (whether a
person was assessed for parish rates ; the books
must be produced) ; 1813, Henry v. Leigh,
3 Camp. 499 (the fact of the allowance of a
certificate of bankruptcy; certificate required) ;
1856, Darby v. Ouseley, 1 H. & N. 1, 5, 10
(whether a person's name is written in a book
containing the names of members of an associa-
tion ; production required) ; 1880, Appleby v.
Secord, 28 N. Br. 403 (testimony of one present
at a trial, not admitted to show what the dispute
§ 1244
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
fact that an entry in a record or accoutit-book does not exist, while in a sense
it involves the document's terms, yet is usually and properly regarded as not
requiring the books' production for proof ; this may be justified either on the
present ground or on that of the inconvenience of producing voluminous
documents {ante, § 1230) ; it is difficult to ascertain -which reason is the one
judicially approved.*
and the decision were ; production of record re-
quired) ; 1837, Kennedy v. Dear, 6 Port. 90, 96
(of a justice, whether a certain case was before
him, allowed without production) ; 1855, Doe v.
Reynolds, 27 Ala. 364, 376 (facts of foreclosure
and sale ; record must be produced) ; 1893,
Kodeu V. Brown, 103 id. 324, 327, 329, 15
So. 598 (whether a bank's boolis showed an
account with B. ; production required) ; 1872,
Burk V. Winters, 28 Ark. 6 (that a person was
assignee in banliruptcy ; production required) ;
1895, Union Pacific R. Co. v. Jones, 21 Colo.
340, 40 Pac. 892 (whether a verdict had been re-
covered; record required); 1811, Arnold v.
Smith, 5 Day 150, 155 (that a ship had been
libelled and condemned; rule applied); 1871,
Supples V. Lewis, 37 Conn. 568 (the fact that
an execution had been issued and given to an
officer; production not required); 1829, Hum-
phreys V. Collier, 1 111. 297 (that a person had
been discharged in insolvency ; record required) ;
1861, Scott V. Scott, 17 Ind. 308 (that certain
persons were assessed for land ; assessment roll
required) ; 1879, Binns i;. State, 66 id. 428,
430 (" tlie pendency of a suit, the parties to
it, and its subject-matter, may be proved by
parol, where the record is not the ground of
the action ") ; 1889, Hewitt;;. State, 121 id. 245,
23 N. E. 83 (maliciously killing a dog ; to prove
that it was listed for taxation, tax-list not re-
quired) ; 1892, File v. Springel, 132 id. 312,
31 N. E. 1054 (that a mortgage was held
and a mortgage-suit was begun ; production of
mortgage and record unnecessary) ; 1795, Owings
V. Wyant, 3 H. & McH. 393 (that the defendant
was a common innkeeper, such persons being re-
quired to be licensed ; production not required ) ;
Mich. Comp. L. 1S97, §§ 2932, 3244, 3413 (vil-
lage or city or county condemnation proceedings ;
register's testimony as to persons shown by rec-
ords to be owners, admissible) ; 1899, Reynolds
V. State, 58 Nebr. 49, 78 N. W. 483 (that a person
was divorced ; production of decree or copy re-
quired); 1849, Chambers v. Hunt, 22 N. J. L.
552, 562 (fact of a trial involves the production
of the record) ; 1849, Browning v. Flanagin, ib.
567, 577 (proving the existence of a judgment-
lien ; production of the judgment required) ;
1848, Smiley v. Dewey, 17 Oh. 156, 159 (fact of
appeal taken; record required) ; 1898, Stone v.
Langworthy, 20 R. I. 602, 40 Atl. 832 (by a
member of a town council, that a road was a
highway, excluded) ; 1841, Cross v. Haskins,
13 Vt. 536, 540 (testimony by one receiving oil
that he had credited H. for it on his books ; the
books not required to be produced) ; 1844, Sher-
win V. Bugbee, 16 id. 439, 444, sembh (existence
of school district; records not required); 1874,
Hubbard o. Kelley, 8 W. Va. 46, 52 (that an
appeal had been taken; production required),
Compare some of the cases under § 1249, -post.
For the fact of conviction of crime, see post,
§ 1270. For appointment to office, see post, § 2535.
For the fact of incorporation, see post, § 1625.
* The following list includes also the few
cases contra, which are expressly so noted : 1831,
R. V. Backler, S. C. & P. 118 (like People v.
Eppinger, Cal.); 1834, R. v. Brannan, 6 id.
326 (same); 1852, Maule, J., in Macdonnell
V. Evans, 11 C. B. 930, 938 ("Suppose a man
is asked whether he made an entry in his
day-book, and he says No ; it cannot be nec-
essary to produce the book"); 1894, People
V. Eppinger, 105 Cal. 36, 38 Pac. 538 (for-
gery of check on B. C. Bank in name of H.
& Co. ; teller's testimony that no firm of that
name " kept or had any account in his books,"
admitted) ; 1853, Elkins v. State, 13 Ga. 435,
440 (clerk allowed to testify that no liquor-
license had been granted to E. ; no record
being required to be kept, the record is not
complete; where a record is required, then it
must be produced to show that no such part
exists) ; 1886, Mayson v. Atlanta, 77 id. 663,
665 (like Elkins v. State) ; 1899, Aspiuwall v.
Chisholm, 109 id. 437, 34 S. E. 568 (absence of
entry in account-books ; production required) ;
1903, Vizard v. Moody, 117 id. 67, 43 S. E. 426
(that no tax returns were found in the records
where they would properly be, admitted) ; 1874,
Chicago y.McGraw, 75111.566,571 (that no sales
of U. S. land in a district were made ; produc-
tion of records required) ; 1853, Nossaman v. Nos-
saman, 4 Ind. 648, 651 (by a clerk, that no such
marriage-record appeared, allowed) ; 1864, Board
V. Reinhart, 22 id. 463 (that the defendant had
never before in any transactions made a certain
claim ; production of the written transactions
not required); 1871, Lacey v. Maruan, 37 id.
168, 170 (by the U. S. land-register, that no
land-eutrv existed, allowed) ; 1902, Com. v.
Best, 180 Mass. 492, 62 N. E. 748 (that no
warrant for an arrest had been issued , admitted
from one who had searched the record) ; 1901,
Wagner v. Supreme Lodge, 128 Mich. 660. 87
N. W. 903 (testimony of the clerk of a lodge
to plaintiff's non-membership, excluded on the
facts) ; 1883, Burnett «. McCluey, 78 Mo. 676,
689 (that a part of a record did not exist ;
production required; after evidence of its ex-
istence and loss by opponent, evidence of its
non-existence is admissible in rebuttal) ; 1895,
Smith !). Bank, 45 Nebr. 444, 447, 63 N. W.
796 (principle conceded ; but one who has
merely searched the index of a registry of
deeds may not speak as to the absence of a
record) ; 1903, Sykes v. Beck, — N. D. — , 96
N. W. 844 (attorney's testimony that the county
records contained nothing of a certain tenor, ex-
cluded ; the official custodian's testimony is re-
1494
§§ 1177-1282]
EULE NOT APPLICABLE.
§ 1245
§1245. Same: (5) Fact of Payment of a 'Written Claim; Receipts.
(a) When a payment of money is made in discharge of a written claim —
as, of a bond, a judgment — or in obedience to a written order, the fact of
faying, including the amount paid, is usually a fact separate from the terms
,of the writing thus discharged, and the latter's production is not necessary.
Nevertheless, in a given instance the terms of the writing rnay come to be
drawn indirectly into the act of payment, — as where the question arises
whether one draft or another was the object of the payment. For the ordi-
nary situation first mentioned, it is generally agreed that production is un-
necessary, but in instances of the latter sort production has been in some
instances required.' (5) The fact that a receipt was given by the other party
does not change the result, so far as the present principle.is concerned.^ But
under the Integration (or Parol Evidence) rule the question may arise
whether the receipt has not become the sole memorial of the transaction, so
as to exclude the parol act of payment from consideration (post, § 2432). This
question is generally answered in the negative, (c) Where the medium of
payment is not coin or paper-money, but a check, note, or other form of writ-
quired) ; 1903, Fisher v. Betts, — id. — , 96
N. W. 132 (whether the tax records did not
contain a warrant of levy; the custodian re-
quired to be called, in preference to an attorney
who had searched the records) ; 1834, Emrie v.
Gilbert, Wright 764 (accounting ; whether an
order on K. was included in the accounts due ;
production not required) ; 1865, Blackburn v.
Crawfords, 3 Wall. 17.5, 183, 191 (that a mar-
riage register did not contain an entry of a
certain marriage; production required).
Compare the instances ante, § 1230. Whether
an official custodian's certificate that no entry or
document exists i.s admissible is another ques-
tion {post, § 1678). Whether the opinion rule
affects this kind of testimony is noticed post,
§ 1657. Whether the custodian's certijicate is
preferred, is considered post, § 1273.
1 1801, Bayne v. Stone, 4 Esp. 13 (action to
recover half of a payment made to a joint
obligee by a surety ; the security-document not
required to be produced) ; 1834, May v. May, 1
Port. 129 (whether payment had been made
under a power of attorney to M. ; to prove that
the power was to S., production required) ; 1843,
Planters' & M. Bank v. Borland, 5 Ala. 531,
543, 545 (that payment of certain drafts had
been made, and that a payment on judicial
process had been made ; production not re-
quired, the contents not being material to the
issue) ; 1874, HoUenbeck v. Stanberry, 38 la.
32), 327 (payment of judgment, provable with-
out production); 1894, Shaffer v. McCrackin,
90 id. 578, 580, 58 N. W. 910 (same); 1861,
Cramer v. Shriner, 18 Md. 140, 146 (settlement
of accounts made on the basis of a memorandum ;
since the verbal transaction was independent of
the writing, production was not required) ; 1876,
Mason v. District, 34 Mich. 228, 234 (that money
was paid out on written orders ; production re-
quired); 1867, Lowry i: Harris, 12 Minn. 255,
271 (payment for deed ; production not re-
quired) ; 1830, Benton v. Craig, 2 Mo. 198
(payment of money, but not terms of the
draft paid, admitted without production) ; 1836,
Davidson v. Peck, 4 id. 438, 444 (payment by
co-defendant of judgment, and action against
the other for the amount ; payment of the
judgment provable without producing it before
the witness or reciting it in his deposition ;
carefully reasoned opinion) ; 1898, Whiteside
V. Hoskins, 20 Mont. 361, 51 Pac. 739 (pay-
ment of a judgment ; judgment not produced) ;
1903, Roberts v. Dover, — N. H. — , 55 Atl.
895 (whether certain fees had been paid, al-
lowed without producing records) ; 1847, Mil-
liken V. Barr, 7 Pa. 23 (that there was another
note of similar date and indorsements, on which
the payment pleaded had really been made ; pro-
duction of the other note required) ; 1811, Fair-
fax V. Fairfax, 2 Cr. C. C. 25 (payment of bond ;
production and proof of execution not required) ;
1827, Patriotic Bank v. Coote, 3 Cr. C. C. 169
(assumpsit for overdraft ; whether a check was
drawn in a firm-name ; production required) ;
1846, Hay den v. Rice, 18 Vt. 353, 358 (action
for contribution against joint promisor ; to
prove payment on execution, execution need
not be produced).
2 1836, Wiggins v. Pryor, 3 Ala. 430, 433
(that money was paid and a receipt taken ;
production not required); 1877, Davis v. Hare,
32 Ark. 386, 390 (payment of taxes; the col-
lector's books not required); 1832, Dennett v.
Crocker, 8 Greenl. 239, 244 (payment of taxes
provable orally, without producing the receipted
bills) ; 1849, Chambers v. Hunt, 22 N. J. L. 552,
562 (" It is clearly competent to prove payment
by parol, or rather by verbal testimony, even
though there may be written evidence as a
receipt or order"; but where the giving of an
order of payment on a third person, and its
tenor, was to be shown as payment, production
was required). See also the cases cited post,
§ 2432.
1495
§1245
DOCUMENTAEY OEIGINALS.
[Chap. XXXIX
ten obligation, the case for requiring production may be more clear (than in
(a) supra), for in paying with money it is usually a mere matter of counting
the number of pieces, while in paying with an instrument of obligation the
terms of the writing may be of consequence ; at any rate, when they do
receive any emphasis under the issues, it would seem that the rule of pro-
duction should apply .^
§ 1246. Same : (6) Fact of Ownership ; (7) Fact of Tenancy. (6) The
mere fact that a person is owner of property, whether real or personal, is a
distinct thing from the terms of the document or documents by which he
has become owner ; although instances may be supposed in which the rela-
tion of ownership involves so directly the terms of a specific deed that the
rule of production applies.^ (7) The fact that a person occupies the relation
of tenant, as to a piece of land or its owner, is a distinct fact ; for he may
have become tenant by parol or by writing, and the tenancy is the result of
the transaction, and is not the transaction itself. Nevertheless, so far as the
terms of a written tenancy are drawn into the question, the rule of produc-
tion begins to be applicable.^
3 1791, Breton v. Cope, Peake 30 (plea, pay-
ment of a bond by transfer of bank-stock to
the plaintiff; rule applicable, and copy of the
transfer-book required) ; 1803, Dover v. Maes-
taer, 5 Esp. 92, semble (bribery; that the de-
fendant gave the witness a £o note, for which
the witness signed a note payable on demand,
admitted without producing the documents) ;
1880, Ware v. Morgan, 67 Ala. 461, 466 (that
a payment was made by bill of exchange ; pro-
dnction not required); 1859, Daniel v. John-
son, 29 Ga. 207, 210 (that notes were given in
payment; production not required! ; 18.^8, Ohio
Ins. Co. V. Nunemacher, 10 Ind. 234, 237 (that
in an offer of payment by check and note of a
certain tenor was made ; production required) ;
1890, Coonrod v. Madden, 126 id. 197, 25 N. E.
1102 (that a check was given in payment of
note B, and not of note A, the one in suit;
production of note B not required); 1865, Cecil
Bank v. Snively, 23 Md. 253, 263 .(that certain
notes had been paid over by being sent to a
bank and collected ; production not required).
^ 1880, Street v. Nelson, 67 Ala. 504, 507
(contract for sale of personalty ; title to per-
sonalty " can be proved as a fact by oral testi-
mony," unless the question arises between the
parties) ; 1890, Florence L. M. & M. Co. v.
Warren, 91 id. 533, 537, 9 So. 384 (testimony
that the witness had not title, admitted) ; 1 892,
Wolfe V. Underwood, 97 id. 375, 378, 12 So. 234
(petitioners testifying that they own stock ; books
not necessary) ; 1858, Newsom i'. Jackson, 26
Ga. 241, 245 (that B.'s wife owned certain
negroes ; deed required) ; 1 890, Kirkpatrick ».
Clark, 132 111. 342, 345, 24 N. E. 71 (whether
a person was owner of land ; oral testimony ex-
cluded) ; 1897, Westfield Cigar Co. v. Ins. Co.
169 Mass. 382, 47 N. E. 1026 (whether a person
owned a building; "title by deed must ordi-
narily be proved otherwise than by the oral
testimony of the owner" ; but here the objection
was not properly made) ; 1867, McMahou ».
1496
Davidson, 12 Minn. 357, 369 (that a person was
ovmer of a steamboat, alloweil, " in the absence
of any evidence that there was any writing") ;
1868, Fay v. Davidson, 13 id. 523, 525 (same) ;
1867, Baldwin v. McKay, 41 Miss. 3.i8, 362
(whether the plaintiff owned cotton ; produc-
tion of bill of sale required) ; 1834, Lloyd v.
Gid dings, Wright 694 (whether a lot was in-
cluded within the boundaries of a conveyance
produced ; deeds adjoining tlie boundary not
required to be produced) ; 1852, Strimpfler v.
Roberts, 18 Pa. 283, 296 (letter claiming owner-
ship ; production of title-deeds not required) ;
1892, Gallagher v. Assur. Co., — id. — , 21 Atl.
115 (that a certain person owned a leasehold;
production of bill of sale not required); 1871,
Hart «. Vinsant, 6 Heisk. 616 (replevin for
rails cut ; in showing the boundary of land by
title-bond, production required); 1811, Wilson
V. Young, 2 Cr. C. C. 33 (title-interest in an in-
sured ship, production required).
For testimony to ownership as objectionable
under the Opinion rule, see post, § 1960.
2 England: 1810, Doe v. Morris, 12 East 237
(ejectment against a tenant ; tenancy proved by
evidence of the payment of rent) ; 1810, Doe
V. Pearson, ib. 239, note (same; no objection
raised in either case from the present point of
view) ; 1820, R. v. Castle Morton, 3 B. & Aid.
588 (to show the value of a tenement occupied
by a pauper, the writing of lease was held to be
necessary) ; 1825, Cotterill v. Hobby, 4 B. & C.
465 (case for injury to a reversioner's interest
by cutting trees ; the written lease required to
be produced) ; 1827, R. v. Holy Trinity, 7 id.
611 (to prove the occupation of a tenement, as in-
volving the settlement of a pauper, and to prove
the amount of rent paid, the rule was not
applied ; the fact of tenancy and the value of
the rent were proved by cross-e.xamination with-
out producing the written lease) ; 1828, Strother
V. Baer, 5 Bing. 136 (action for injury to the
plaintiff's reversion ; whether, to prove the fact
§§ 1177-1282]
EULE NOT APPLICABLE.
§ 1247
§ 1247. Same: (8) Pact of Transfer of Realty, oir (9) of Personalty. (8) It
would seem a hard rule that would forbid a witness to say " I bought a
house " without producing the title-deed ; and yet how otherwise are we to
avoid the argument that, since transfers of title to land must be in writing,
oral testimony to such a transfer is testimony to the contents of a document
not produced ? The truth seems to be that much depends on the emphasis
to be given in the particular instance to the detailed elements of the transfer.
If, for example, a witness is qualifying as an expert in land values by stating
that he has bought and sold land, the emphasis is upon the net fact that he
has acted as buyer and seller, and not at all on the terms of the transfer ;
but if he is justifying a trespass as landlord of the premises, the emphasis
is upon the fact that a document exists naming him and describing the
premises ; production should be required in the latter case, but not in the
former. The rulings therefore vary, as might be expected ; but it may be
noted that the negative result is reached in some Courts by invoking the rule
(§ 1252, post) as to collateral matters.^ (9) The rule's application to the
of the reTersionary interest, the written agree-
ment of lease must be shown, left undetermined,
Gaselee and Park, JJ., contra. Best, C. J., and
Burrough, J., pro ; all the preceding cases are
examined) ; 1830, E. v. Merthyr Tidvil, 1 B.
& Ad. 29 (amount of rental ; lease required to
be produced ; distinguishing R. v. Holy Trinity,
because there the amount was merely incidental
as evidence of value, while the later law of set-
tlement of paupers made the amount of agreed
rental material) ; 1832, Doe v. Harvey, I Moo.
& Sc. 374 (to prove the value of the premises,
in an action for mesne profits, by showing the
occupation by the defendant as tenant of P.
and the amount of his rent, the rule was held
applicable; the fact of occupation as tenant
might have been proved apart from the writing,
but not the tenancy under P. ) ; United States :
1885, Central R. Co. v. Whitehead, 74 Ga. 441,
445, 447, 452 (action for personal injury on a
road said to be leased by defendant; plaintiff
allowed to prove that it was leased, without
producing the writing; Hall, J., diss.) ; 1879,
Hammon v. Sexton, 69 Ind. 37, 43 (fact of
tenancy or occupancy provable by parol, in
action by occupant against owner for taxes
paid) ; 1870, Gilbert v. Kennedy, 22 Mich. 5, 18
(trespass by lessee ; to prove tenancy, produc-
tion of lease required) ; 1875, Storm v. Green,
51 Miss. 103, 106 (terms of a written lease;
production required) ; 1855, Putnam v. Goodall,
31 N. H. 419, 423 (whether a factory was leased
to a specific person; production required);
1871, Taylor v. Peck, 21 Gratt. 11, 17 (unlawful
detainer, brought by landlord ; the defendant, to
prove himself tenant in possession, offered the
plaintiff's receipts for rent, without producing
the lease; received, because "the terms of the
tenancy or of the lease . . . was perfectly im-
material; if he held them at that time as ten-
ant, no matter on what terms and conditions,
he held them lawfully"; R. o. Holy Trinity
followed).
Distinguish the question which party has
the burden of showing the agreement to be in
writing {pout, § 2447).
^ In the following list are included rulings
upon other kinds of transfers («. g. of slaves)
required to be in writing : 1828, Cloud v. Patter-
son, 1 Stew. 394 (that a house and lot had been
sold as the property of J. S. ; production of
deed required) ; 1896, Goodsou v. Brothers, 111
Ala. 589, 20 So. 443 (that land was sold by the
sheriff as the plaintiff's; production required);
1859, Raines v. Perryman, 29 Ga. 529, .534 (that
a slave was given to M. ; deed required) ; 1876,
Primrose v. Browing, 56 id. 369, 371 (that a
conveyance was made to X ; deed required) ;
1860, Snapp f. Pierce, 24 111. 156, 158 (that a
deed was executed in satisfaction of a bond;
production of bond required) ; 1851, Trimble v.
Shaffer, 3 Greene la. 233 (that a deed was
given, allowed without production) ; 1838,
Nancy v. Snell, 6 Dana Ky. U8, 156 (sale of
slave ; bill of sale required) ; 1868, Calhoon v.
Beldeu, 3 Bush 674, 676, semble (in proving
lost deed, a deed, not an oral transfer, must be
shown) ; 1847, Roebnck v. Curry, 2 La. An. 998
(that a slave had been emancipated ; production
of written act required) ; 1821, Tucker v. Welsh,
17 Mass. 160, 165 (assumpsit by the assignee of
a policy ; to disprove the existence of a considera-
tion for a prior assignment, the fact of a mort-
gage was held orally provable, as a " collateral
fact") ; 1866, Thompson v. Richards, 14 Mich.
172, 183 (condition to give a deed; production
required, in proving that a deed was given ) ;
1869, Clemens v. Conrad, 19 id. 170, 173 (agree-
ment to give deed ; production not required, in
testifying that a deed was given) ; 1873, Hatch
V. Fowler, 28 id. 205, 210 (sale of land ; produc-
tion of contract required) ; 1891, Showman i:
Lee, 86 id. 556, 563, 49 N. W. 578 (to whom a
mortgage was given ; production not required) ;
1839, Randolph v. Doss, 3 How. Miss. 205, 214
(that an administrator had sold land; produc-
tion required) ; 1892, Gallagher v. Land Co.,
149 Pa. 25, 24 Atl. 115 (that the witness had
1497
§ 1247
DOCUMEFTAEY ORIGINALS.
[Chap. XXXIX
fact of a sale of personalty depends upon the same considerations. It should
be noted, however, that it is immaterial that the law does not require a
writing for the sale of personalty, if in fact the sale was in writing.^
§ 1248. Same: (10) Execution of a Document; (11) Sending or Publica-
tion of a Demand, Notice, etc. (10) Where the existence or execution of a docu-
ment is concerned, a good deal must depend on the emphasis in the particular
instance. For example, to prove a pecuniary motive for murder, testimony
that the defendant had seen the deceased receive a sum of money at the
bank and give notes for it might be made without producing the notes ; but,
in an action for property transferred with intent to defraud creditors, the
execution of other similar transfers to show intent could not be proved
without producing or accounting for the documents. The rulings naturally
are not harmonious ; and again it is to be noted that the doctrine about
" collateral" facts {post, § 1252) is often invoked to justify negative rulings.^
missible without production) ; 1828, Mather v.
Goddard, 7 Conn. 304 (" I shipped, as per B. L." ;
production required); 1819, ])e Pusey v. Du
Pont, I Del. Ch. 77 (" The naljed fact of the
execution of a paper may certainly be proved,
under circumstances, without the production of
the paper " ; here production required in proving
the fact of indorsement of notes as involving mis-
management of a partnership); 1871, Plunkett
V. Dillon, 4 id. 198, 205 (" The execution of an
agreement and the time, place, and circum-
stances of its being made, may for all purposes
be proved by parol") ; 1859, Holcombe v. State,
28 Ga. 66, 67 (the fact of writing a letter, ad-
missible without production) ; 1870, St. Louis &
C. R. R. Co. V. Eakins, 30 la. 279, 281 (to show
performance of conditions of stock subscriptions,
the fact of letting a contract, etc., proved with-
out producing the writings) ; 1819, Dupey v.
Ashby, 2 A. K. Marsh. 11 (existence of a
written contract ; rule applicable on the facts) ;
1889, Ranney v. Donovan, 78 Mich. 318, 325,
44 N. W. 276 (that the defendant asked him to
sign a receipt of a certain tenor, that he refused,
handed it back, etc. ; production not required ;
" it was simply a part of the conversation " ) ;
1891, Muskegon v. Lumber Co., 86 id. 625, 628,
49 N. VV. 489 (whether he made a return of the
tax-roll to the treasurer, allowed without pro-
duction); 1830, Benton v. Craig, 2 Mo. 198
(who filed or signed a plea ; production not
required) ; 1878, Kardin v. Stevenson, 75 N. Y.
164, 166 (a witness to handwriting who had
seen the defendant sign his name was allowed
to say what kind of instruments he had signed,
as affecting the degree of attention which the
witness might have given) ; 1833, Ellis o.
Baldwin, 6 Oh. 15 (to prove the fact of issuance
of a license, production not required); 1860,
Shoenberger v. Hackman, 37 Pa. 87, 92 (action
on a promise to pay heirs in consideration of
their signing a release ; " it was simply the act
of signing the paper " that was to be proved ;
"it was therefore a collateral matter to the
issue," and production of the release was not
necessary).
Compare the rules as to order of proof of
execution, loss, and contents, ante, § 1189.
bought certain houses ; production not re-
quired).
Compare also some cases under § 1249, post,
and the New York cases under § 1256, post.
For the bearing of the Opinion rule, see post,
§ 1960.
^ The cases are not harmonious : 1815, Davis
V. Reynolds, 1 Stark. 115 (the plaintiff had
bought a consignment of goods from the con-
signee, taking the indorsed bill of lading ; his
title allowed to Vie shown without the bill) ;
1863, Towdy v. Ellis, 22 Cal. 650, 659 (sale of
goods in writing; production required); 1849,
Thompson v. Mapp, 6 Ga. 260 (fact and time of
a written sale of personalty; production not
required) ; 1813, Luckett v. Anderson, Litt.
Sel. C. 178 (assumpsit against one who sold a
false bank-note ; production not required) ; 1818,
Grimes v. Talbot, 1 A. K. Marsh. 205 (pur-
chase of personalty ; bill of sale required to be
accounted for) ; 1826, Lamb v. Moberly, 3 T. B.
Monr. 179 (assumpsit for the price of a note
bought ; the fact of purchase and promise proved
without production) ; 1875, Sirrine v. Briggs, 31
Mich. 443, 446 (sale of stock of goods ; produc-
tion of writing not required, the terms not being
material); 1898, Price v. Wolfer, 33 Or. 15,
52 Pac. 759 (tracing chain of title to personalty
by successive sales and deliveries ; production
of bill of sale, if any, in each case, required).
1 England: 1848, R. v. Duffy, 7 State Tr.
N. s. 795, 938 (one who saw a document written,
not allowed to name the author witliout produc-
ing the original) ; 1848, Sayer v. Glossop, 2
Exch. 409 (rule applies to proof of hand-
writing); United States : 1853, Dixon y. Barclay,
22 Ala. 370, 381 (signature of a note in pay-
ment of a debt ; production not required ; here,
action for deceit in a sale); 1854, Snodgrass
V. Branch Bank, 26 id. 161, 173 (that the
witness had seen notes of S. in the bank's pos-
session ; production not required to prove "the
fact of the existence of snch notes"); 1876,
Bell V. Denson, 56 id. 444, 448 (fact of execution
of mortgage, as showing possession ; production
required) ; 1 886, Hancock v. Kelly, 81 id. 368,
378, 2 So. 281 (that a written instrument "re-
lating to her dower interest" was signed, ad-
1498
§§ 1177-1282]
EULE NOT APPLICABLE.
§ 1249
(11) The act of delivering, sending, or publishing a document, regarded as
distinct from the terms of the document, may of course be proved without
production ; but, so far as such proof implies anything as to the document's
terms and seeks to establish those terms by indirection, the rule is applicable
and production necessary.^
§ 1249. Same : (12) Sundry Dealings -with Documents, — Conversion, Loss,
Forgery, Larceny, Agency, Partnership, Service of Writs, etc. In an action
of trover for the conversion of a document, the existence and the taking of
a document of a certain sort may be regarded as facts distinct from its
detailed terms, and thus the rule of production is not applicable :
1802, Bucher v. Jarratt, 3 B. & P. 145 ; Heath, J. : " There is a material difference
between an action of assumpsit on a promise contained in an instrument in writing and
an action of trover for the instrument itself. In the former the promise must be
proved as laid, and consequently can be best proved by inspection of the instrument.
In the latter the gist of the action is the tort " ; Rooke, J. : '* Where the written instru-
ment is to be used as a medium of proof by which a claim to a demand arising out of
the instrument is to be supported, there [notice is required . . .] before evidence of its
contents can be received. But this being an action of trover for the certificate of regis-
try itself, I can see no sound reason why evidence should not be admitted of the exist-
ence of the certificate, in the same manner as evidence of a picture or other specific thing
is constantly admitted where it is sought to be recovered in the same form of action.^
2 England: 1808, Smith v. Young, 1 Camp.
439 (to prove the fact of a written demand or
notice, production is necessary); 1813, Doe v.
Durnford, 2 M. & S. 61 (the fact of giving
written notice to quit, held to require the pro-
duction of the writing); United States: 1847,
Bond V. Central Banlt, 2 6a. 92, 99, 107 (con-
tents of notice in a newspaper ; production
required); 1849, Schley v. Lyon, 6 id. 530, .538
(same); 1851, Pierce v. Carleton, 12 111. 358,
364 ( that a paper was published in the State by
H. & S., allowed by parol) ; 1898, Liugle v.
Chicago, 172 id. 110, 50 N. E. 192 (fact of pub-
lication of notice ; provable without production) ;
1899, McChesney v. Cook Co. Collector, 178
id. 542, 53 N. E. 356 (fact of newspaper publican
tion of notice ; production not required) ; 1855,
Unthank v. Turnpike Co., 6 Ind; 125, 127 (oath
of publisher with one copy, sufficient to .show
publication on three occasions) ; 1866, Des Moines
V. Casady, 21 la. 570, 572 (that an ordinance
was published in a newspaper, and the number
of times ; provable by oral testimony, without
producing the printed document; its contents
being otherwise in evidence) ; 1869, Burlington
G. Co. i;. Greene, 28 id. 289 (fact of a notice
given, production not required) ; 1886, Bish v.
Ins. Co., 69 id. 184, 186, 28 N. W. 553 (that a
proof of loss blank had been filled out and sent;
rule not applicable) ; 1890, Hagau v. Ins. Co.,
81 id. 321, 332, 46 N. W. 1114 (proof of loss;
preparation and sending, provalile without pro-
duction) ; 1835, Miller v. Webb, 8 La. 516
(fact of publication of notice ; production not
required); 1837, Baker v. Towles, 11 id. 432,
438, se.mble (same); 1867, Beall a. Poole, 27
Md. 645, 652 (the fact that complaints had
been made by letter ; production required) ;
1886, Pouca v. Crawford, 18 Nebr. 551, 553, 23
VOL. II. — a
1499
id. 662, 668, 26 N. "W". 365, 37 id. 609 (whether
a petition was presented ; production not re-
quired) ; 1803, Peyton v. Hallett, 1 Cai. 363,
365, 380 (notice of abandonment of a vessel
given by letter delivered; sembte, the fact of
notice provable without production ; case ob-
scure) ; 1817, Moore o. Gilliam, 5 Munf. 346,
347 (editor's testimony to fact of publication of
advertisement, received without producing it) ;
1863, Rutland & B. R. Co. v. Thrall, 35 Vt.
536, 546 (notice in newspaper as required by
law ; production of a copy of the newspaper re-
quired ; " in cases where successive notices are
required, we should incline to think that the
production of one paper to show the contents,
and proof by parole that there were successive
publications of the same notice, would be
enough ") ; 1 874, Sexton v. Appleyard, 34 Wis.
235, 239 (fact of publication of notice; oral
testimony sufficient).
For the use of a publisher's affidavit as an
exception to the Hearsay rule, see post, § 1710 ;
for its use as preferred to other testimony, see
post, § 1339.
Compare the other cases on newspaper copies,
ante, § 1234.
1 1794, Cow.an v. Abrahams, 1 Esp 50 (trover
for a bill of exchange ; the declaration described
it; Lord Kenyon, C. J., held the rule applicable,
and the King's Bench concurred ; practically
overruled by the above case); 1813, Scott v.
Jones, 4 Taunt. 865 (Gibbs, J. : "It used to be
the practice in actions of trover for bills of ex-
change to give notice to produce the bill ; it
has very lately been held in the Court of King's
Bench that such notice is unnecessary " ; here,
trover for an agreement for a lease); 1830,
Whitehead v. Scott, 1 Moo. & R. 2 (trover for a
deed; production not required). The same
§ 1249
DOCUMENTARY OEIGINALS.
[Chap. XXXIX
The same reasoning applies in other cases where the fact to be proved is
merely some dealing with the document as a material object, for example, by
larceny, embezzlement, or loss ; ^ but otherwise for forgery or counterfeiting.^
Ab agency may have been constituted by a written authority ; but the
repeated acting upon it, being equally a granting of authority, may be proved
without production.* By the same reasoning, the fact that a partnership
exists may be proved without producing the articles of partnership.^ In a
large number of other instances, the result seems to depend on the present
principle, though the precise grounds and the classification of the opinions
are open to difference of interpretation.' It may be noted that where the
result might be reached by treating the rule
as applicable, but implying from the pleadings
a notice to produce (ante, § 1205). The practical
difference between the former and the latter
reasonings would be that, if the document could
not be produced for want of a stamp, by the
former doctrine this would be immaterial, by
the latter it would prevent proof by copy ; but,
further, that by the latter it would be necessary
to show possession by the defendant.
* 1802, Anon., cited in Bucher o. Jarratt, 3
B. & P. 145 (indictment for stealing a written
instrument ; notice to the defendant to produce,
" certainly not the practice," and intimated to
have been held unnecessary) ; 1898, First Nat'l
Bank of B. v. First Nat'l Bank of N., 116 Ala.
520, 22 So. 976 (action for loss of a package of
transfers of land-certificates deposited, the claim
of damages being for expense incurred in pro-
curing substitutes ; rule held not to apply to the
transfers).
3 1880, Fox V. People, 95 111. 71, 75 (forgery ;
rule applies to proof of former utterings) ; 1885,
State 0. Breckenridge, 67 la. 204, 25 N. W. 130
(other forged notes used to show intent; hold-
ing absolutely that production is necessary) ;
1886, State v. Saunders, 68 id. 371, 27 N. W.
455 (similar; holding that the document must
be either produced or accounted for) ; 1823,
People V. Lagrille, 1 Wheeler Cr. C. 412 (utter-
ing counterfeit bills; other counterfeits must
be accounted for by proof of destruction or of
defendant's refusal on notice) ; 1847, Reed v.
State, 15 Oh. 217, semble (other counterfeit
bills should be produced or accounted for) ; 1 865,
State v. Cole, 19 Wis. 129, 134 (uttering coun-
terfeit bill ; to prove the uttering of other coun-
terfeits as evidence of guilty knowledge, the
hills must be produced or else accounted for by
showing defendant's refusal to produce on notice
or prosecution's inability to obtain them other-
wise).
Compare the cases cited ante, § 1205 (notice
to produce), and ante, § 318 (evidencing intent
by other forgeries).
* 1794, Neal v. Erving, 1 Esp. 61 (an agency
proved by habitual action, without producing
the instrument) ; 1812, Spencer v. Billing, 3
Camp. 310 (whether the plaintiff had habitually
accepted bills addressed to him as partner ;
oral evidence allowed ; otherwise, if the mode
of dealing had varied, which would tlien involve
the proof of "an individual written instru-
ment ") ; 1814, Haughton u. Ewbank, 4 id. 88
1500
(to prove an agency, the defendant's habit of
paying upon such documents signed by the
agent was proved orally, though the authority
was in writing).
Compare the effect of the Opinion rule {post,
§ 1960).
° Here, however, the principle may perhaps
really be the one referred to ante, § 1242, par.
3, 1, e. that it is the duty of the opponent to prove
that written articles of partnership exist; or
the principle may be that of § 1255, pos«, that tlie
articles may be proved by oral admissions of the
opponent ; or it may be that the partnership
is a " collateral " fact, under § 1252, post. The
opinions are seldom clear as to the precise
principle invoked: 1875, Price v. Hunt, 59 Mo.
258, 261 (production not always required; but
here required, the issue being whether a con-
tract was one of partnership) ; 1810, Widdifield
V. Widdifield, 2 Binn. 245, 249 (though by one
witness the existence of a contract of partner-
ship was proved, another was allowed to testify
to the existence of a partnership, because they
might have " afterwards formed a general part-
nership by parol ") ; 1852, Cutler v. Tliomas, 25
Vt. 73, 79 (suit by creditor against partner;
articles need not be produced by plaintiff) ;
1855, Hastings v. Hopkinsou, 28 id. 108, 117
(plaintiff charging a defendant as partner prob-
ably may prove the partnership as a fact in-
dependent of the articles; but a defendant
defending by alleging partnership is invoking
the articles and must produce them).
^ 1807, Horn v. Noel, 1 Camp. 61 (since a
Jewish ceremony of marriage was merely the
ratification of a previously written contract, to
prove the fact of marriage, the contract was
required) ; 1795, Morgan v. Minor, 2 Root 220
(that a certain prize in a lottery was drawn by
his number ; rule applicable) ; 1837, Dyer v.
Smith, 12 Conn. 384, 391 (whether a person
had a certain note in his possession ; production
not required) ; 1885, Harris v. Collins, 75 Ga.
97, 108 (that deeds of a certain description were
deposited, given up again, etc., allowed, without
production); 1858, Rawson v. Curtiss, 19 111.
456, 473 (that he saw a "letter of credit," ex-
cluded ; production necessary) ; 1875, Miller v.
Road Co., 52 Ind. 51, 60 (that steps were taken
to organize a corporation and that articles were
filed ; production not required); 1811, M'llvoy
V. Kennedy, 2 Bibb 381 (that a claim was set up
under a bill of sale; production not required);
1897, Barnes i>. Com., 101 Ky. 556, 41 S. W. 772
1177-1282]
EULE NOT APPLICABLE.
§ 1252
fact to be proved is some dealing with a document which goes to form a
judicial record — as, the serving of a writ, the time of trial begun — , the
Parol Evidence rule (post, § 2450) may forbid the parol transaction to be
shown at all, because the act in legal significance is constituted solely by the
return on the writ or some other appropriate part of the record^
§ 1250. Same : (13) Miscellaneous Instances. For a great many in-
stances in which the present question arises it is unprofitable to pursue
analysis more minutely or to seek a solution in any of the preceding
generalizations.^
G. Exceptions to the Eule.
§ 1252. (1) " Collateral " Facts ; History. It was clearly enough settled,
in the era of the rule of profert (ante, § 1177), that profert need not be made
of a document whose contents were but an inducement to the claim alleged
or, as it was commonly said, of a document which was " meer collateral to
(fact of receipt of a letter ; rule not applied) ;
1853, Hunt v. Roylance, U Cush. 117 (mode of
keeping accounts, etc. ; production of books re-
quired) ; 1886, Simpson v. Waldby, 63 Mich.
439, 444, 30 N. W. 199 (that drafts were pro-
tested, not paid, and returned ; production re-
quired) ; 1894, Hohe v. Swift, 58 Minn. 84, 88,
59 N. W. 831 (measurement of printer's ems in
an advertisement; production required); 1892,
Shelton v. Reynolds, 111 N. C. 525, 16 S. E. 272
(fact of showing a paper, but not the contents ;
production not needed); 1803, Hurt v. Davis, 1
JBrev. 304 (assumpsit for services performed in
pursuance of a written agreement; production
required); 1812, Ford v. Whitaker, 3 id. 244
(trespass q. c.f. ; evidence that the trespassing
person acted under written orders from the
defendant; production required); 1839, Enloe
V. Hall, 1 Humph. 303, 310 (services in printing
and publishing advertisements in a newspaper ;
production of the paper not required) ; 1873,
Lacy V. Sugarman, 12 Heisk. 354, 363 (whether
an act was done within the lines of military
occupation ; the fact of actual occupation prov-
able by parol, but to prove the limits as defined
by military written order, the order must be
produced) ; 1822, Hutchinson v. Peyton, 2 Cr.
C. C. 365 (expenses in procuring insurance ;
production of policy required); 1856, Houghton
V. Paine, 29 Vt. 57 (services in " gathering
data and writing a memoir " ; production of the
memoranda, etc., made by the plaintiff, not
required); 1892, Johnson v. Marble Co., 64 id.
337, 353, 25 Atl. 441 (that the proceeds of a
check were received by A and spent in a certain
way ; production unnecessary) ; 1788, Dawson
V. Graves, 4 Call 127 (smuggling ; testimony by
W. that he had received 71 hogsheads though
he had taken out a permit for 50 only; produc-
tion of the permit required).
' 1807, Thomas v. Ausley, 6 Esp. 80 (to prove
the time of notice of a trial, the notice was
required ; and to prove the date of the trial at
Nisi Prius, the record was required); 1837,
E. y. Murphy, 8 C. & P. 297, 305 (the fact that
a distraint was made under a warrant ; rule
not applicable) ; 1851, Thorne v. Mason, 8 TJ. C.
Q. B. 236 (malicious arrest ; the writ required to
be produced) ; 1 886, Foster u. Magill, 119111. 75,
82, 8 N. E. 771 (evidence of an act done to take
possession of property does not require produc-
tion of the record ; but not so of a suit brought) ;
1876, Stanley v. Sutherland, 54 Ind. 339, 353
(that a farm had been sold on execution for
a certain debt ; allowed, the validity of the
sale not being disputed) ; 1856, Wynne v.
Aubunl, 23 Mo. 30 (that a mare was taken
under a writ; production required); 1892,
Bates V. Sabin, 64 Vt. 511, 521, 24 Atl. 1013
(services rendered in serving process ; production
unnecessary).
Compare the cases ante under §§ 1241, note 2,
and 1244, note 3.
^ 1845, Graham v. Lockhart, 8 Ala. 9, 25
(fact of indebtedness as consideration for a deed
" may as well be proved orally as by the produc-
tion of the writing"); 1892, Lavretta v. Hol-
comb, 98 id. 503, 510, 12 So. 789 (that a person
was president of a club ; minutes not required) ;
1858, Poole V. Gerrard, 9 Cal. 593 (to rebut evi-
dence of marriage by habit and repute, testi-
mony involving the terms of .the contract were
not received without the writing); 1871, Jones
V. Hopkins, 32 la. 503, 506 (that a corporation
was organized ; rule applicable) ; 1830, Foster
V. Wallace, 2 Mo. 231 (proving a co-signer of a
bond to have signed merely as surety for the
other ; testimony to the fact of a debt allowable,
without producing the instrument) ; 1835, Rank
V. Shewey, 4 Watts 218 (that an apparent
surety on a bond was by another bond really
co-obligor; production of the second bond re-
quired) ; 1892, Price v. R. Co., 38 S. C. 199, 209,
17 S. E. 732 (employee's action for death ;
written regulation of the defendant must be
produced, in proving a regulation) ; 1870, Smith
V. Large, 1 Heisk. 5, 7 (debt on account for
leather delivered ; in showing the existence of
a bond to deliver it, the bond must be produced).
For the case of an appointment to office, see
ante, § 1228.
1501
§ 1252 DOCUMENTARY ORIGINALS. [Chap. XXXIX
the action " ; subject only to the qualification that profert of such a deed
was nevertheless to be made if the deed was requisite ex institutione legis :
1606, Lord Coke, in Bellamy's Case, 6 Co. Rep. 38 (trespass de bonis asportatis; the
defendant pleaded ownership of the land ; the plaintiff pleaded a lease assigned to him ;
the defendant pleaded a condition not to assign without the lessor's license ; the plaintiff
pleaded a license by deed, without making profert ; then the defendant demurred) : " The
reason and cause that deeds are shewed to the Court is because it belongs to the judges
to adjudge of the sufficiency or insufficiency of them ; yet it was resolved that the plain-
tiff need not shew it in this case for three reasons : 1. Because the plaintiff doth not claim
by the said deed of licence any interest in the house, but the licence is meer collateral to
the interest of it and pleaded only to excuse the forfeiture of the lease, and is not like a
release or confirraat, for they transfer their right ; 2. A good difference was taken and
agreed when a deed is requisite ex instituiionis legis and when ex provisione hominis ; for
when it is requisite ex institutione legis, there it ought to be shewed in court, although it
concerns a collateral thing and transfers or conveys nothing." ^
By some process of thought not clearly ascertainable, this limitation to the
doctrine of profert was in England early repudiated as a limitation to the
rule requiring production in evidence :
1750, L. C. Hardwicke, in Cole v. Gibson, 1 Ves. Sr. 503, 505 (bill to set aside an an-
nuity ; a bond which had been a part of the transaction was required to be produced) :
" A distinction is endeavored between a bill to set aside the bond or other instrument,
and a case wherein it is made use of only by collateral evidence ; but there is no such
distinction in point of evidence ; the rule being the same whether it comes in by way
of collateral evidence, or the very deed which the bill is brought to impeach." ^
But in the United States the exception has survived, usually more or less
below the surface, and potential only in occasional instances, though in some
jurisdictions fully recognized and constantly enforced.
§ 1253. Same : Principle. Such a limitation most assuredly has a justi-
fication. In the great majority of instances where the terms of a document
are not in actual dispute, it is inconvenient and pedantic to insist on the
production of the instrument itself and to forbid all testimonial allusion,
however casual, to its terms :
^Accord: 15.55, Throckmerton v. Tracy, which he had obtained an award under arbitra-
Plowd. 148 (profert not required of one not tion which defendant had promised to pay ; in
privy to the deed); 1602, Dagg v. Penkevon, an action ou the award, the plaintiff need not
Cro. Jac. 70 (debt for tithes, by a lessee for make profert of the assignment ; Kenyon,
years from a lessee for life from the queen by L. C. J. : " It is not universally true that a pro-
letters patent ; profert of the latter not required, fert must be made when the party pleading a
because "the title shewn in the declaration is deed derives title under it; ... it is never nec-
but a conveyance to the action ") ; 1636, Stock- essary to make a profert of a deed which is
man v. Hampton, Cro. Car. 441 (justification for pleaded only by way of inducement ; and the
trespass under a license from one having a deed in question is only inducement to the
remainder after an estate tail, the plea travers- action ").
ing the opponent's claim of estate in fee for liis " Yet this limitation is mentioned In the
ancestor; profert not necessary, "because it is treatises of the 1800s: 1829, Phillipps, Evi-
but an inducement to the traverse and is not dence, 7th ed., I, 303 ("The general rule that
answerable"); ante 1767, BuUer, Nisi Prius, the best evidence is to be produced which the
249 (" When a man shews a good title in him- nature of the thing admits is to be understood
self, everything collateral to that title shall be as applying to deeds and agreements which
intended, whetner it be shewn or not") ; 1800, form part of the issue or which are material to
BanfiU V. Leigh, 8 T. R. 571 (plaintiff sued as the issue") ; 1842, Starkie, Evidence, 3d ed.,
assignee of debts under power of attorney, by I, 202 ; 1870, Best, Evidence, 5th ed., § 479.
1502
§§ 1177-1282] EXCEPTIONS TO THE EULE. § 1253
1885, Mulkey, J., in Masseyy. Bank, 113 111. 334, 338: "[The general principle] has
no application to the facts above stated. We fully recognize the rule that whenever
the existence of a deed or other writing is directly involved in a judicial proceeding,
whether as proof of the precise question in issue or of some subordinate matter that
tends to establish the ultimate fact or facts upon which the case turns, such deed or
other writing itself must be produced, or its absence accounted for, before secondary
evidence of its contents is admissible. Yet while this rule is fully conceded, it is also
true that a witness, when testifying, may, for the purpose of making his statements
intelligible, and giving coherence to such of them as are unquestionably admissible in
evidence, properly speak of the execution of deeds, the giving of receipts, the writing of
a letter, and the like, without producing the instrument or writing referred to. To hold
otherwise would certainly be productive of great inconvenience, and in some cases would
defeat the ends of justice. References to written instruments by a witness for the pur-
pose stated are to be regarded as but mere inducement to the more material parts of his
testimony. The present case well illustrates the principle in question. As remotely
bearing upon the issue to be tried, the plaintiff sought to show the appellant had avowed
a purpose not to pay the note [whose execution was in issue], — that he had said he
was going to put his property out of his hands in order to defeat the claim. Now this,
under the issue, is the important part of the answer to the question ['whether the note
was a renewal note '], if indeed any of it can be so regarded. All, therefore, that
was said about the deeding of the land, the giving of the mortgage, and getting the loan
of $2,000, we regard as mere matter of inducement to the more important part of the
testimony."
Two things, however, are to be noted. (1) The term " collateral," as a defi-
nition of the limits of this exception, is an unfortunate and elusive word,
which is almost impossible of consistent application in practice. Yet a
more satisfactory term or test is certainly difficult to fix upon. If we say
that production is not necessary where the terms of the document are not
honafide disputed by the opponent, we go too far; for the opponent may
not be prepared to dispute its terms and yet he may fairly desire the
opportunity to see the document and not be obliged to accept the pro-
ponent's testimony to its contents ; moreover, it would be difficult to ascer-
tain beforehand whether the terms of all the documents to be used would
be disputed. Again, if we say that the exception shall cover all documents
not materia,l as a part of the issues under the pleadings, we go once more
too far ; for a document may not form an element of the issue and yet
may be important enough in evidence to require production. There seems
no alternative but to accept the current and traditional term " collateral "
as serving to define the exception. (2) But in any case the misfortune of
inconsistent precedents and the disadvantage of an obscure definition can
be obviated by applying strictly that salutary doctrine of judicial discretion.
Let the trial judge determine absolutely, and without review, the application
of the principle to each case. Whether a document is " collateral " is prac-
tically a question whether it is important enough under all the circumstances
to need production ; and the judge presiding over the trial is fittest to deter-
mine this question finally {ante, § 16).
It should here be noted that the present exception has sometimes been
confused with the Integration or Parol Evidence rule in a peculiar way. It
1503
§ 1253 DOCUMENTAEY OEIGIJSTALS. [Chap. XXXIX
is a part of that rule that an oral transaction, though reduced to writing, can
be availed of where other parties are concerned, and the oral transaction is as
between them the material one (post, § 2446). This does not mean that the
writing's contents can be proved by oral testimony, but that the terms of
the oral transaction can be shown. Having erroneously in mind this differ-
ent rule, the Court of at least one jurisdiction has phrased the present ex-
ception so as to allow the terms of such a writing to be proved, between
other than the parties, orally and without production.' This is purely a
local misunderstanding ; it has never elsewhere been doubted that the pres-
ent applies to all writings, whether or not the parties in the case were the
parties to the document.^
§ 1254. Same : Specific Instances. There is naturally little to be found
by way of further generalization in collating the precedents. Each case
has depended much on its own circumstances. The important thing to
note is that the present doctrine has been invoked in deciding many
of the cases falling under another aspect of the general principle (ante,
§§ 1242-1250). For example, in proving that a defendant paid money
upon a note, the payment of the money is an act separate from and not in-
volving the terms of the document, so that to prove the payment is not to
prove the document's contents, and therefore the rule of production does not
apply ; nevertheless many Courts express this by saying that the document
is " collateral " and that hence the exception to the rule comes into play.
Most of the cases in which the term " collateral " is invoked can be suffi-
ciently explained by that principle.^
1 1873, Pollock V. "Wilcox, 68 N. C. 46, 49 certain funds; bill's production not required);
(action to set aside a deed in fraud of creditors; 1876, Lewis v. Hudmon, 56 id. 186 (false repre-
the defendant was allowed to show orally the seutations as defence to action on premium note
contents of notes surrendered and notes made for policy; production of application required,
by him as the price of the land; the rule not as not collateral) ; 1877, East v. Pace, 57 id.
being applicable except between " the parties to 521, 524 (conversion of a mule; process under
a contract"); 1895, Garden v. McConnell, 116 which it was taken, not required to be pro-
id. 875, 21 S. B. 923 (action for slander of title; duced, being an "incidental or collateral mat-
plaintiff's proof of a deed by him to I., allowed ter"); 1884, Winslow u. State, 76 id. 42, 48
to be by parol, on the ground that the rule did (exception recognized); 1885, Jones v. Call,
not apply as between strangers to the deed); 93 id. 170, 179 (rule not applicable to "mere
1896, Archer v. Hooper, 119 id. 281, 26 S. E. notices") ; 1892, Rodgers v. Crook, 97 id. 722,
143 (title to personalty; plaintiff claimed under 72.5, 12 So. 108 (exception recognized); 1897,
a bill of sale from B. ; the bill not required to Torrey v. Bnrney, 113 id. 496, 21 So. 348 (to
be produced). show the reason for ill-feeling, evidence was
=' 1881, Smith v. Cox, 9 Or. 327, 331 (pro- offered that the person had read a newspaper
duction required of a void deed between third clippiug that would cause it ; the clipping re-
persons), quired lo be produced); 1898, Eoxworfli v.
^ They have accordingljf been placed there Brown, 120 id. 59, 24 So. 1 (to show notice,
(ante, §§1242-1250); while the precedents rule not applicable) ; 1901, Griffin !>. State, 129
below inclnde only those rulings which more or id. 92, 29 So. 783 (assault on a person assisting
less definitely mean to recognize a real excep- a constable acting under a writ; writ not re-
tion of the present sort; the precedents in tliose quired to be produced, being collateral, aud its
sections should therefore also be consulted on contents not being in issue) ; 1901, Zimmerman
all of the states of facts dealt with in the cita- v. State, — id. — , 30 So. 18 (similar) ; 1901,
tions below; compare also a few cases cited Costello v. State, 130 id. 143, 30 So. 376 (pro-
pose, § 2143 (authentication of ancient copies dnction not required of a written agreement
of deeds) ; JZa.; 1831, Sommerville w. Stephen- which showed a witness' interest; compare
son, 3 Stew. 271, 278, semhle (exception recog- § 1258, post) ; 1903, Webb v. State, — id. — ,
nized); 1847, Brown v. Isbell, U Ala. 1009, 34 So. 1011 (rule not applied to a memorandum
1020, semble (action on agreement to pay de- handed to witness by defendant) ; Ark.: 1848,
ficiency of amount of a bill if not paid out of Hammond v. Freeman, 9 Ark. 62, 67 (action
1504
§§ 1177-1282]
EXCEPTIONS TO THE RULE.
§ 1255
§ 1255. (2) Party's Admission of Contents ; Principle. The proposition
that production should be dispensed with where the opponent has already-
admitted the contents of a document to be as alleged, is a plausible one, and
its denial seems at first sight a mere insistence on an unnecessary formality.
The doctrine that production is in such a case exceptionally dispensed with
owes its best defence and its common name to the following opinion of
Baron Parke :
1840, Parke, B., in Slatleriey. Pooley, 6 M. & W. 664: "If such evidence were inad-
missible, the difficulties thrown in the way of almost every trial would be nearly in-
superable. The reason why such parol statements are admissible, ... is that they
rare not open to the same objection which belongs to parol evidence from other sources,
where the written evidence might have been produced; for such evidence is excluded
from the presumption of its untruth arising from the very nature of the case where
better evidence is withheld; whereas what a party himself admits to be true may reason-
ably be presumed to be so. The weight and value of such testimony is quite another
question."
against maker by indorsee for money paid on
note to subsequent indorsee ; in proving the
intermediate indorsement to plaintiff, produc-
tion required as not collateral) ; 1900, St. Louis
& S. F. R. Co. V. Kilpatrick, 67 id. 47, 54 S. W.
971 (expulsion by brakeman; placard on car
not required to be produced, because " merely
incidental") ; Cal.: 1887, Marriner v. Dennison,
78 Cal. 202, 213, 20 Pac. 386 (action by promisee
under contract to sell land, the promisor having
persuaded him to accept other lands by repre-
senting that he had a prior contract to sell to
S. ; testimony of S. offered to show that his con-
tract was in truth subsequent ; production of it
not required); ///..• 1885, Massey o. Bank, 113
111. 334, 337 (whether a note in issue was a
renewal note ; incidental references to prior
deed, mortgage, etc., allowed without produc-
tion; see quotation supra); Ind. : 1890, Coon-
rod V. Madden, 126 Ind. 197, 25 N. E. 1102 (to
prove a plea of payment, in an action on a note,
the defendant produced a check said to have
been given in payment ; the plaintiff then
offered to testify that it was another note that
had been paid by this check, and to give the
date, amount, etc., of the other note, to identify
it with the check; the rule was not applied to
the other note) ; 1896, Lumbert v. Woodard,
144 id. 335, 43 N. E. 302, semble (a lease bearing
on the case in an undisclosed way ; rule not ap-
plicable) ; Mass.: 1784, Com. i>. Fairfield, Dane's
Abr., c. 84, art. 2, § 3 (that a witness owned land,
as indicating his standing ; provable by parol) ;
1898, Smith v. Bank, 171 Mass. 178, 50 N. E.
545 (covenant against incumbrances ; report of
engineer leading to sewer assessment, held col-
lateral) ; Mich.: 1864, Angell v. Rosenbury, 12
Mich. 241, 258 (contents of a deed ; rule applies
equally to collateral issues) ; N. J.: 1861, Gil-
bert V. Duncan, 29 N. J. L. 133, 139 (whether
the note sued on, or a different one, was agreed
to be given np on receiving a third one; produc-
tion of the different one not required, because
the question was collateral, because "its con-
tents are not material to the rights of the parties
in the action," nor does the proponent " seek to
1505
avail himself of its contents as proof of any fact
stated in it or of any obligation created or dis-
charged by it") ; 1896, New Jersey Zinc & I.
Co. V. L. Z. & I. Co., 59 id. 189, 35 Atl. 915
(a contract recited by corporation minutes, the
corporate action alone being material ; rule not
applicable); N. Y.: 1813, Southwick u. Stevens,
10 John. 443, 446 (that a defendant was State
printer and president of a bank ; provable with-
out production in an action for libel, as "col-
lateral matter " ; " it is every day's practice to
give parol proof in such cases") ; N. C: 1884,
State v.. Credle, 91 N. C. 640, 646 (notice posted
warning against buying R.'s cattle, with the kill-
ing of which the defendant was charged; pro-
duction not required) ; 1887, State v. Wilkerson,
98 id. 696, 699, 3 S. E. 683 (false pretences in ob-
taining an order for money for an alleged pauper;
production of the order not required, the matter
being collateral) ; 1893, McMillan u. Baxley, 112
id. 578, 586, 16 S. E. 845 (notice of sale; rule
not applicable) ; S. C. : 1831, Lowry v. Pinson,
2 Bail. 324, 328 (to show fraud by other volun-
tary conveyances at the same time, the latter,
being collateral, need not be produced) ; 1845,
Gist V. McJunkin, 2 Rich. 154 (to show fraud in
a sale of land, evidence may be given of a prior
deed, as a collateral circumstance, without pro-
ducing it) ; 1898, Hampton v. Ray, 52 S. C. 74,
29 S. E. 537 (letter envelope held collateral, on
the facts); 1901, Elrod v. Cochran, 59 id. 467,
38 S. E. 122 (resulting trust ; production of the
contract on which the money was paid, not re-
quired) ; Tenn. : 1809, Stewart v. Massengale,
1 Overt. 479 (" When records, or evidence of a
higher nature, are referred to incidentally, which
have no effect upon or connection with the point
in dispute," it is not necessary to produce such
testimony of "higher nature"; here, "what
was said at a trial " was testified to orally in
sci. fac. against bail); Vt.: 1797, Graham v.
Gordon, D. Chip. 115 (action on promise to
pay, in consideration of forbearance to sue on
covenant of title broken by an ejectment ;
record of ejectment held not collateral, and
required to be produced).
§ 1255 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
But there is much to be said against the recognition of such an exception ;
and the sum of these objections is found in the following passages :
1845, Pennefather C. J., in Lawless v. Queale, 8 Ir. L. R. 382, 385 : " I cannot sub-
scribe to what was said by Parke, B., in that case. . . . The doctrine there laid down is
a most dangerous proposition. By it a man might be deprived of an estate of £10,000
per annum, derived from his ancestors by regular family deeds and conveyances, by pro-
ducing a witness, or by one or two conspirators, who might be got to swear they heard
the defendant say he had conveyed away his interest therein by deed, had mortgaged or
otherwise incumbered it; and thus, by this facility so given, the most open door would be
given to fraud, and a man might be stripped of his estate through this invitation to fraud
and dishonesty. It is said, it is evidence against the person himself who made this ad-
mission, and that there is no danger of untruth in what a man admits against himselfi
Supposing the j^dmission to be proved, is there no danger of mistake or misconception of
the terms of a written instrument ? It may be long and difficult ; one part or clause may
explain or qualify another ; an unprofessional or ignorant man may be led to believe it
may be so-and-so, whereas the real and true meaning may be the very reverse or some-
thing very different. But, produce the deed or writing, litera scripta manet. On which
side is the security, and why depart from the rule that, if you want to give evidence of
the contents of a writing, the writing itself must be produced? Is there no danger of
untruth or misrepresentation, when used against the party making the admission?
That is the ground put by Parke, B., and in which I cannot agree, when I know by ex-
perience how easy it is to fabricate admissions, and how impossible to come prepared to
detect the falsehood. Why are writings prepared at all but to prevent mistakes and mis-
representations ? And why, having taken that precaution, with such writing at hand and
capable of being produced, is the same to be laid aside and inferior and less satisfactory
evidence resorted to ? "
1850, Maule, J., in Boulter v. Peplow, 9 C. B. 493, 501 : " It [Slatterie v. Pooley] is
certainly not very satisfactory in its reasons. . . . What the party himself says is not
before the jury ; but only the witness' representation of what he says."
Of the two arguments here offered in opposition, the first amounts to little.
The possibility of error in an opponent's own understanding of the terms of a
document is not great ; and, so far as it exists, it can do little harm, because
the opponent's extrajudicial admission is merely some evidence, and not
•conclusive {ante, § 1058) ; he may still prove the contents as he now knows
them or may have the document produced. But the second argument —
that it is easy to fabricate alleged oral admissions — is the real and serious
objection to the doctrine. It may be conceded that the opponent's admission
of contents is satisfactory evidence, if he made such an admission. But did
he make it ? Here we are left to choose between conflicting oral testimonies ;
and it does seem undesirable to leave the matter to depend on the credibility
of this or the other witness when an inspection of the document itself would
speedily settle the controversy. The proper solution of the dilemma would
be this : When an admission of the contents is testified to, let production be
dispensed with ; but if the fact of the admission is lona fide disputed by the
opponent and some testimony to that effect is put in by him, then let pro-
duction be required or the document's absence be accounted for.
§ 1256. Same : Forms of Rule in Various Jurisdictions. The solution sug-
gested in the preceding section does not seem yet to have been advanced by
1506
§§ 1177-1282] EXCEPTION EOR PAETY'S ADMISSIONS.
1256
any Court. The results so far in the various jurisdictions have been either
the entire rejection of the rule, or its entire adoption, or its recognition in a
confused form.
(a) In England the rulings fluctuated until 1840, when the decision in
Slatterie v. Pooley laid down the rule authoritatively .^ That authority has
ever since been accepted and followed in that jurisdiction, though often with
reluctance and usually with an absurd modification, to be noticed.^ In an
early Irish ruling and in many jurisdictions in Canada and the United States
the rule has received express and full adoption.^
^ Compare with the following the cases on
duplicate originals {atite, § 1232) : 1699, Anon.,
1 Lord Raym. 732 (admission of a decree, by the
opponent's witness, held sufficient) ; 1791, Breton
V. Cope, Fealie 30, seinble (admission by oppo-
nent in a deed of the contents of a transfer-
book of stock, htld sufficient) ; 1793, Burleigh
V. Stibbs, 5 T. R. 465 (action against a master
on his indenture of apprenticeship ; to prove
the apprentice's execution of his part of the
indenture, the defendant's recitals, admitting
it, in his part were received) ; 1806, Roe v.
Davis, 7 East 363, semble (acknowledgment
by a lessee, in the landlord's counterpart of
a lease, of the terms of the original, admitted
as against an assignee of the lease); 1811,
Flindt I'. Atkins, 3 Camp. 115 (the former
handing of a copy of a foreign judgment by
the plaintiff to the defendant in proof of his
claim, held not sufficient to enable the defend-
ant to use the copy) ; 1812, Scott v. Clare, ib.
236 (defence, a discharge in insolvency ; the
plaintiff's oral admission of it held insufficient
" to prove a judicial act of this sort," as " the
plaintiff might be mistaken") ; 1822, Summer-
sett V. Adamson, I Bing. 73 (admission of a dis-
charge in insolvency, sufficient) ; 1824, Sewell v.
Stubbs, 1 C. & P. 73 (contents of a note ; admis-
sion sufficient) ; 1825, Bloxam v. Elsie, ib. 558,
563, Ry. & Mo. 187, Abbott, C. J. (oral admis-
sion insufficient) ; 1828, Paul v. Meek, 2 Y. &
J. 116 (counterpart of a lease; admission suffi-
cient); 1833, Earle v. Picken. 5 C. & P. 542
(contract; admission sufficient); 1835, R. v.
Torbcs, 7 id. 224, Coleridge, J. (" strict proof "
required ; here a letter admitting a former
forgery was received, though the other forged
bin itself was not produced) ; 1836, Ashmore v.
Hardy, ib. 501, 503 (admission of a deed in an
answer in chancery, allowed) ; 1840, Slatterie v.
Pooley, 6 M. & W. 664 (to prove a deed of com-
position with creditors — which could not be
produced for want of the required stamp — ,
the defendant's verbal admission of tie con-
tents of the instrument was received).
2 1840, Newhall o. Holt, 6 M. & W. 662 (ac-
count stated); 1841, Howard v. Smith, 3 Scott
N. R. 574 (oral admission) ; Wollaston v. Hake-
will, ib. 593, 617 (here there was notice to pro-
duce) ; 1848, King v. Cole, 2 Exch. 628, 632
(" admission, either verbal or in writing, of the
contents of a deed," is sufficient) ; 1849, Toll v.
Lee,_4 id. 230 (a certificate of a deed of transfer,
admitted as an admission of the deed's contents) ;
1850, Murray v. Gregory, 5 id. 467 (oral admis-
sions of the contents and rcwlt of an award,
received); 18.50, Boulter v. Peplow, 9 C. B.
493, 506 ( Williams, J. : " It is impossible for us
to overrule Slatterie v. Poolejr, though we may
think the reasoning not quite satisfactory " ;
here a written admission); 1851, R. v. Basing-
stoke, 14 y. B. 611 (support to a pauper; con-
duct held a sufficient admission of the contents
of a certificate requiring such support) ; 1851,
Pritchard v. Bagshawe, 11 C. B. 459, 463 (an
abstract of deeds, received as an admission of
contents) ; 1858, Sanders v. Karnell, 1 F. & F.
356 (Channell, B. : "The doctrine . . is one
not to be extended").
3 1843, Lord Trimlestown v. Keramis, 5 Ir.
L. R. 380, 396 (abstract of title) ; 1854, Doe v.
Blanche, 3 All. N. Br. 180, 182 (admissions
received ; following Slatterie v, Pooley) ; 1840,
Sally 0. Capps, 1 Ala. n. s. 121 (oral admission
of the amount of a note, received ; " the rule
does not apply where the adversary has ad-
mitted the facts which are to be proved ") ;
1902, Barnett v. Wilson, 132 Ala. 375, 31 So.
521 (production of a copy admitted by opponent
to be correct dispenses with the necessity of ac-
counting for the original) ; 1 893, Morey v. Hoyt,
62 Conn. 542, 556, 26 Atl. 127 (oral admission
of contents of letter ; Slatterie v. Pooley ap-
proved) ; 1847, Gay v. Lloyd, 1 Greene la. 78,
83 (oral admission by defendant of transcript of
judgment, received) ; 1877, Blackington w Rock-
land, 66 Me. 332, 335 (records of a city, received
as admissions of a notice ; approving Slatterie
V. Pooley; yet not deciding more than that a
written admission is receivable) ; 1850, Smith v.
Palmer, 6 Cush. 513, 520 (oral admission of con-
tents of a record of judgment, execution, etc.,
allowed); 1851, Kellenberger v. Sturtevant, 7
id. 465 (same for acknowledgment in writing
of a title to premises) ; 1857, Loomis i: Wad-
hams, 8 Gray 557, 562 (same for oral state-
ment as to the contents of a deed) ; 1896, Com.
V. Wesley, 166 Mass. 248, 44 N. E. 228 (same
doctrine) ; 1899, Clarke v. Warwick C. M. Co ,
174 id. 434, 54 N. E. 887 (" Admissions are evi-
dence . . . although they relate to the contents
of a written paper ; here a written admission) ;
1847, Anderson v. Root, 8 Sm. & M. 362 (written
receipt for a writing, sufficient to prove its con-
tents); 1859, Williams w. Brickell, 27 Miss. 682,
686 (oral admission of contents of telegram, suf-
ficient); 1878, Edgar v. Richardson, 33 Oh. St.
581, 592 (Slatterie v. Pooley approved ; here, for
admissions as to a record of divorce ; semhle, the
record must be not obtainable); 1824, North ».
1507
§ 1256
DOCUMENTAEY OEIGINALS.
[Chap. XXXIX
(I) In some later Irish rulings and in many jurisdictions in the United
States, the rule is repudiated, though perhaps in some cases for oral admis-
sions only, not for written admissions;* and it should be noted that the
second objection above mentioned is practically obviated where a written
admission exists, — so far, at least, as that writing is proved by production or
by the opponent's refusal to produce it.
(c) The limitation has been attempted, and possibly obtains, in England,
that -an admission of the opponent made on the stand in testifying (usually,
on cross-examination) shall not suffice to excuse non-production ; i. e. the
precedent of Slatterie v. Pooley is confined to precisely its same state of
facts, namely, an admission made out of court.^ An admission, however,
made in testifying before judge and jury is authentic beyond dispute, and
wholly escapes the above-described real objection to the doctrine, namely, the
objection that testimony to the alleged admission might be easily fabricated.
In other words, this proposed limitation involves the absurd result of exclud-
ing the admission in precisely the case where it might be received without
danger and of admitting it in precisely the case where the danger exists.
(d) A fourth type of result, in favor in some American jurisdictions, is to
allow the proof by admissions whenever the document is shown to be lost or
Drayton, Harp. Eq. 34, 38 (recital of bond in
mortgage, sufficient) ; 189t, Dunbar i'. U. S.,
156 U. S. 185, 196, 15 Sup. 325 (oral admission
of sending a telegram, sufficient to allow a
delivered copy to be used) ; 1871, Taylor v.
Peck, 21 Gratt. 11, 19 (landlord's receipt for
rent received to show a lease ; Slatterie v.
Pooley followed).
That the admissions need not be verbally
precise or complete, see post, § 2105.
* 1 845, Lord Gostord v. Robb, 8 Jr. L. R. 21 7,
semble; Lawless «. Queale, ib. 382 (positively
decided ; see quotation supra) ; 1849, Parsons v.
Eurcell, 12 id. 90 (admission in an answer in
chancery of a release-deed) ; 1861, Haliburton v.
Fletcher, 22 Ark. 453 (guardian's admissions
of record of appointment, excluded) ; 1860,
Grimes v. Fall, 15 Cal. 63, 65 (charging the
defendant as assignee of a contract to do that
which was a trespass; the defendant's oral
admission that he was assignee, excluded ; no
authority cited) ; 1872, Poorman v. Miller, 44
id. 269, 275 (declarations by offeror's own pred-
ecessor, excluded; question not raised); i824,
Buell V. Cook, 5 Conn. 206, 208 (oral admission
of written lease, excluded); 1871, Plnnkett r.
Dillon, 4 Del. Ch. 198, 205, semble (parol admis-
sions by opponent, excluded, except, of course,
where the writing is produced) ; 1839, Bryan v.
Smith, 3 111. 47, 49 (oral admission of a tenancy
in common under a deed, excluded) ; 1880, Fox v.
People, 95 id. 71, 75 (forgery; former utterings
are to be shown otherwise than by the defend-
ant's admissions) ; 1843, Clark v. Slidell, 5 Rob.
La. 330 (excluded) ; 1843, Bogart v. Green, 8
Mo. 115 (oral admission of summons, insuffi-
cient); 1875, Comet v. Bertelsmann, 61 id. 118,
126 (whether a vendee had notice of an encum-
brance ; oral admissions held insufficient unless
corroborated) ; 1828, Carroll v. Peake, 1 Pet.
18,22 (lease agreement; copy made by the de-
fendant himself, admitted, without accounting
for the original) . "
For the rnlings in New York and elsewhere
on the special subject of title to land, see § 1257,
post.
» 1856, Darby v. Ouseley, 1 H. & N. 1, 5, 10
(Pollock, C. B. ; " If a party has chosen to talk
about a particular matter, his statement is
evidence against himself ; . . . but it does not
follow that the plaintiff could be compelled to
make such an admission by asking him in the
wituess box, ' Have you executed a release ? ' ") ;
1859, Farrow v. Blomfield, 1 F. & F. 653, Pol-
lock, C. B. (allowing the opponent's admission
on the stand to suffice without production, after
St. 1854, c. 125, § 24; quoted post, § 1263);
1859, Wolverhampton N. W. Co. v. Hawksford,
5 C. B. N. s. 703 (interrogatories to opponent
before trial as to contents of a document, allowed
only on condition that they should not be used
at the trial unless the document should be shown
lost) ; 1862, Henman v. Lester, 12 id. 776 (ques-
tion to a party as to the result of a former suit
of his, admitted ; Byles, J., diss. : " It can make
no difference that the witness was a party to the
suit ; the doctrine laid down in Slatterie v.
Pooley . . cannot comprehend parol admis-
sions of the contents of written documents
extorted from parties under the pressure of
cross-examination"; but Willes and Keating,
JJ., thought that on a collateral matter touch-
ing credit only, the party's admission sufficed) ;
1857, Lynch v. O'Hara, 6 U. C. C. P. 259, 265
(a party's compulsory admissions on discovery
do not suffice). There is nothing in the modern
rules of privilege {post, §§ 1856, 2218) to ac-
count for this result.
1508
§§ 1177-1282] EXCEPTION FOR PARTY'S ADMISSIONS. § 1257
detained by the opponent.^ But this is of course no longer a genuine excep-
tion ; i. e. the admission as to contents does not serve to excuse the party
from production ; he is required to account for the non-production, and
may then use the admissions, as he could any other evidence, to prove tho
contents.
• («) It has been suggested, though apparently nowhere accepted, that the
exception should apply only to documents " collateral " to the issue.'
§ 1257. Same : Related Rules (Deed-Recitals ; Oral Disclaimer of Title ;
New York Rule). (1) It is perfectly clear and well understood that, even
where the rule of Slatterie v. Pooley is not accepted, a judicial admission
(post, § 2588) — i.e. a formal admission for the purposes of trial — dispenses
with the necessity of production ; ^ such an admission is a waiver of dispute,
and suffices to concede any fact whqitever in issue.
(2) In proving a partnership, the acting as partners may with reference to
third persons be the source of liability irrespective of the written articles ; ^
or the acts of the partners as admissions of the terms of the partnership may
be regarded, upon the principle of the preceding section, as dispensing with
production of the articles ; ^ or the fact of the partnership may be regarded
as a net resultant fact independent of the articles, so that the rule of produc-
tion is not applicable (ante, § 1249) ; it is generally difficult to ascertain the
precise ground of rulings on this point.
(3) The rule that recitals in a deed are evidence, as between the parties to
it or their successors, of the contents of a former deed recited, is in effect an
application and recognition of the present exception. Its propriety from the
present point of view has not been questioned.* The controversy has been
^ 1850, Flournoy w. Newton, 8 Ga. 306, 310 that . . . 'the estoppel professes, not to sup-
(" You cannot ask the witness what the opposite ply the absence of the ordinary instruments of
party has said as to the contents of papers ex- evidence, but to supersede the necessity of any
ecuted by him, without accounting for their evidence by showing that the fact is already
non-production ") ; 1812, Peart v. Taylor, 2 Bibb admitted ' ").
556, 558 (letter admitting contents of a deed, * 1821, Doane v. Farrow, 10 Mart. La. 74,
received, the deed being lost); 1817, Clevinger 78.
V. Hill, 4 id. 498 (oral admissions "perhaps" ^ iggg^ Edwards v. Tracy, 62 Pa. 375, 379
not admissible till the deed appears unavail- (admissionsof a partnership, received; following
able) ; 1832, Griffith v. Huston, 7 J. J. Marsh. Widdifield v. Widdifield, atite, § 1249).
385, 387 (oral admissions of predecessor received * England: 1697, Sussex v. Temple, 1 Ld.
after loss shown); 1832, Thomas v. Harding, 8 Eaym. 310, 311 (answer in chancery, aeknowl-
Greenl. 417, 419 (admitted where the opponent edging a deed, held admissible against a defend-
had failed to produce on notice) ; 1827, Allen v. ant claiming title under the party answering) ;
Parish, 3 Oh. 107, 110 (admissions of opponent's 1699, Sherwood v. Adderley, ib. 734 (recital of
grantor as to deed's contents, received as corrob- a will in the admittance to a copyhold, held
orative evidence, where the deed was lost). admissible against the lord in favor of the
' 1845, Crampton, J., in Lawless v. Queale, devisee, without producing the will) ; 1704,
8 Ir. L. R. 382, 390. Compare the majority's Ford v. Grey, 1 Salk. 286, 6 Mod. 44 (" a recital
opinion in Henraan v. Lester, supra, note 5. of a lease in a deed of release is good evidence
Distinguish also the parol evidence rule (post, of such lease against the releasor and those
§ 2465), as applied to title-deeds, that the parties' that claim under him ; but as to others [i. e.
understanding is not to vary the terms ; this strangers], it is not, without proving that there
may exclude admissions contradicting the deed : was such a deed and it was lost or destroyed ";
1847, Maloney v. Purden, 3 Kerr N. Br. 515, the latter use, i. e. as an exception to the Hear-
525 (predecessor's admissions, contradicting a say rule for ancient recitals in general, is con-
deed, as to the land included). sidered posi, § 1573; the point of the present
^ 1845, LordGosford t7. Kobb, 8 Ir. L. R. 217, case is accurately expounded by Story, J., in
221, per Crompton, J.; 1851, R. w. Basingstoke, Carver v. Jackson, infra); Georgia: 1846,
19 L.J. M.e. 99 (Pattesou, J.: "It is well put M'Cleskey v. Leadbetter, 1 Ga. 551, 557 (re-
by Mr. Smith, in his ' Leading Cases,' II, 426, cital of a lease, admitted against the grantor's
1509
§ 1257 DOCUMENTARY OEIGINALS. [Chap. XXXIX
whether such recitals could be used, as hearsay evidence, against strangers
to the deed (post, § 1573) and also whether such recitals were absolutely
binding (ante, § 1058), and whether they were admissible if made by a pred-
ecessor in title (ante, § 1082).
(4) The rule of the Statute of Frauds forbidding proof of an oral grant or
disclaimer of title is frequently difficult to distinguish from the question of
the present rule. This convergence, and that of one or two other principles,
is represented in a series of New York rulings, which have much influenced
other Courts. Their results may be set forth as follows : (a) A declaration
admitting that the declarant holds as tenant only may be used, if made by a
predecessor in title, as an ordinary admission (on the principle of § 1082,
ante) ; or, if made by a deceased person, though a stranger, as a declaration
against interest (under the Hearsay exception, ^osi, § 1458). (b) A declara-
tion, by either the opponent's or the proponent's predecessor, claiming or
disclaiming title may be used as a verbal act coloring the possession (on
the principle of § 1778, post) where it is used in support of the proponent's
title hy adverse possession, (c) The admission, by an opponent or his pred-
ecessor, of the contents of a deed which the proponent wishes to prove in
support of a documentary title, might be used under the exception to the
production-rule in Slatterie v. Pooley {ante, § 1255), if that exception were
recognized ; but in New York that exception is recognized only in the modi-
fied form of par. {d) of the preceding section, i. e. such admissions may be used
if the document is shown to be lost or in the opponent's control.^ (d) "Where
the opponent has already shown a title by deed, an oral admission of non-title
(or, disclaimer of title), by himself or his predecessor, cannot be used against
him to overthrow his proof of documentary title ; for, though it is in one
aspect merely an admission of the contents of some unspecified lost deed, yet
privies) ; 1856, Horn v. Ross, 20 id. 210, 220 1, 83 (recital of lease in deed of release is "an
(recitals, in a settlement deed, of an ante-nuptial estoppel, and binds parties and privies, — privies
contract, admitted against creditors by a sub- in blood, privies in estate,' and privies in law;
sequent debt); Pa.: 1811, Penrose v. Griffith, but it does not bind mere strangers, or those
4 Binn. 231, 235 (recital, in a deed, of a previous who claim by title paramount the deed ; [('. c],
deed, admissible, agninst the grantor and privies, it does not bind persons claiming by an adverse
not otherwise) ; 1814, Stoever v. Whitman, 6 title or person claiming from the parties by title
Binn. 416, 418 (recitals of a former deed, ad- anterior to the date of the reciting deed") ;"l832,
mitted against one claiming under the grants Crane w. Morris, 6 id. 698. 611 (same; conclusive
or) ; 1816, Bell v. Wetherill, 2 S. & R. 350 as to contents and execution) ; Vt : 1836, Lord
(recital of a deed in a predecessor's patent, not ». Bigelow, 8 Vt. 445, 460 (legislative charter
accompanied by possession, insufficient); 1816, reciting former grant, admitted against privies) ;
Stewart i'. Butler, ib. 381 (recital in a patent of Var: 1830, Blow v. Maynard, 2 Leigh 29, 49
a previous conveyance, received against one (recital, in a post-nnptial settlement-deed, of an
claiming under the grantor) ; 1816, Downing v. ante-nuptial contract not otherwise evidenced, is
, Gallagher, ib. 455 (same; but only against those not binding on creditors) ; 1849, Wiley r. Givens,
claimmg after the former grant) ; 1818, Whit- 6 Gratt. 277, 283 (recitals of an entry under a
mire v. Napier, 4 id. 290 (recitals of title in a purchase from R. ; not received against one
land-patent, receivable against one claiming by claiming adversely by elder patent) ; 1852, Wal-
possession, not title) ; 1852, Gingrich v. Foltz, ton o. Hale, 9 id. 194, 198 (preceding case ap-
19 Pa. St. 38, 40 (recitals in a land-patent as to proved); 1852, Hannon v. Hannah, 146, 150
previous warrant, etc., are evidence against one (recital of a former deed, admissible against
who relies on possession alone and shows no "parties and privies in blood, in estate, and
paper title, and also agninst one claiming under law ").
a right arising subsequent to the patent; but " See the rulings infra, in 13, 17, and 18
not against one claiming by right prior to the Johnson, 7, 8, and 14 "Wendell, and 68 New
patent) ; U. S.: 1830, Carver v. Jackson, 4 Pet. York.
1510
§§ 1177-1282] EXCEPTION FOE PAETY'S ADMISSIONS.
1257
standing as it does by itself, and no actual defeasing deed having been shown
to exist, such a declaration amounts virtually to an oral defeasance or con-
veyancu, and thus violates the Statute of Frauds requiring conveyances to be
in writing. It practically sets up a title in somebody else through the sole
medium of the oral declaratiou.s Were the existence of a specific defeasing
deed to be shown, and were its loss or hostile control to be proved, then,
under (c) supra, these admissions of this specific document's contents might
be used. — With these more or less competing doctrines in view, the rulings
are at least explainable, if not always reconcilable.''
6 This doctrine, which is in itself not con-
nected with the subject of Evidence, and is
noticed only in order to discriminate it, is ex-
pounded in the following cases, besides those
cited from New York in the next note : 1856,
McMaster v. Stewart, 11 La. An. 546 (title to a
slave; opponent's verbal admissions cannot be
used to perfect title) ; 1846, Harmon v. James,
7 Sm. & M. Ill, 118 (oral admission "that he
had conveyed all his interests to M.," not re-
ceived to prove a deed).
' The New York series of cases illustrating
the above distinctions is here first given, those
of other Courts then follow ; the citations in the
other sections named above (§§ 1082, 1458, 1778)
may be compared: New York : 1809, Jackson
V. Bard, 4 John. 230 (parties claiming under
competing deeds from the same person ; ad-
missions of the defendant's intermediary vendor,
as to his title, received) ; 1810, Jackson v. Shear-
man, 6 id. 19, ai'fthe defendant's oral acknowl-
edgments of the plaintiff's title, excluded as
"counteracting the beneficial purposes of the
statute of frauds " ; yet good " to support a
tenancy," or " to satisfy doubts in case of pos-
session ") ; the two foregoing cases thus led
into two lines of decisions, each more or less
ignoring the precedents of the other: 1810,
Jenner v. JolifEe, ib. 9 (oral admission of an
attach ment, not received ; principle applicable
to specialties and records) ; 1810, Jackson v.
Vosburgh, 7 id. 186 (after proof of a chain of
title, the oral disclaimers of the plaintiflfs lessors
were not received, following Jackson v. Shear-
man) ; 1813, Hasbrouck v. Baker, 10 id. 248
(oral admission of a subpoena's contents, insuf-
ficient, where the proponent had the document
in his possession); 1815, Jackson v. Belknap,
12 id. 96 (oral admissions by a predecessor of
the plaintiff's title, received); 1815, Marks v.
Pell, 1 John. Ch. 594, 598 (oral admissions by
a deceased grantee that the deed was taken
as a mortgage, excluded, as counteracting the
policy of the statute of frauds); 1816, Mauri
V. Heffernan, 13 John. 58, 74 (oral and written
admissions of the contents of a document made
abroad and unobtainable, admitted) ; 1818, Jack-
son V. M'Vey, 15 id. 234, 237 (following the
Shearman case); 1819, Jackson v. Gary, 16 id.
302, 306 (declarations disclaiming a larger title
under certain deeds, excluded, as " parol proof
to destroy or take away a title " contravening
the statute of frauds) ; 1820, Brandt v. Klein,
17 ill 335, 339 (recitals in a deed of the contents
of a will, admitted, the will being in the op-
ponent's possession) ; 1 820, Jackson v. M'Vey,
18 id. 330, 333 (admissions of an opponent as to
a deed, receivable, semble, under the same cir-
cumstances) ; 1825, Jackson v. Cole, 4 Cow. 587,
593 (oral admissions by the defendant that the
land belonged to his wife, whose heir the plain-
tiff was, admitted ; the cases of exclusion are
(1 ) parol disclaimer of title, which is forbidden
by the statute of frauds, (2) admissions of the
terms of written conveyances, which violate the
rule requiring production ; citing the Belknap
and the M'Vey cases) ; 1827, Jackson v. Miller,
6 id. 751, 756 (defendant's oral admissions of
adverse possession, excluded, a patent title hav-
ing been shown) ; s. c. on appeal, 6 Wend. 228
(lower Court's ruling affirmed ; defendant's ad-
missions of a conveyance by him to plaintiff's
ancestor, said to be receivable if the plaintiff
proved his inability to produce the original) ;
1830, Jackson v. Denison, 4 Wend. 558, 560
(like the Cole case ; the same distinctions taken) ;
1831, Jackson v. Livingston, 7 id. 136, 139 (oral
admissions of contents of a power of attorney,
received, because the document was unavail-
able) ; 1831, Jackson v. Vail, ib. 125 (same, for
a lost deed) ; 1832, Welland Canal Co. v. Hath-
away, 8 id. 480,486 (a written receipt admitting
corporate organization, excluded ; " the admis-
sions of a party are competent evidence against
himself only in cases where parol evidence would
be admissible to establish the same facts," i. e.
where the document is unavailable) ; 1834, Jack-
son V. Myers, 11 id. 533 (admissions of defend-
ant's grantor, that he had received his deed
from P. in fraud of P.'s creditors now claiming
on execution sale, received ; " the doctrine that
parol declarations shall not be received to divest
a legal title is not applicable in this case " ; ap-
proving Jackson v. Bard); 1834, Northrup v.
Jackson, 13 id. 85, semble (oral admission of a
written contract, excluded) ; 1835, Van Dnyne
V. 'I'hayre, 14 id. 235 (lost mortgage set up by
defendant in an action of ejectment for dower-
land ; admissions of the plaintiff's husband dur-
ing his lifetime, as to the mortgage, received;
following Jackson v. Bard and Jackson v.
Myers) ; 1835, Corbin v. Jackson, 14 id. 619,
623, 630 (oral admissions of the contents of a
power of attorney, admitted, the loss of the doc-
ument being proved by the same admissions;
Tracy, Sen., dissenting, especially on the latter
point) ; 1837, Varick v. Briggs, 6 Paige 323,
327 (predecessor's declaration as to a prior
conveyance by him, admitted, the loss of the
deed being shown); 1844, Hunter v. Trustees,
1511
§1257
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
(5) Certain minor discriminations need occasionally to be made. For
example, an admission of a document's execution is always receivable ; * an
admission of unspecified contents is worthless ; ^ an admission, though im-
proper under the preceding section, is sufficient if brought out by the oppo-
nent's own questions.^*
6 Hill 407 (title to a burying-ground claimed
by dedication ; plaintiff's admissions of non-
ownership, received, not to "affect his paper
title," but to "give character to his possessory
acts") ; 1848, Pitts v. Wilder, 1 N. Y. 525, 527
(admissions of defendant's predecessor, as to
the title he claimed under, received) ; 1859,
Walker v. Dunspaugh, 20 id. 170, 172 (defend-
ant "showed no paper title," but offered ad-
missions of the plaintiff that they "held under
» conveyance for lives," with the defendant in
remainder ; held, " a party cannot make title to
land by a parol admission of his adversary ") ;
1866, Gibuey v. Marchay, 34 id. 301 (declarations
of defendant's predecessor in possession, ad-
mitting purchase of the land with trust funds,
semble, held not admissible to overthrow a title
" of record ") ; 1876, Maudeville v. Reynolds, 68
id. 528, 536 (oral admissions by the defendant of
the existence and contents of a judgment-roll,
admissible, the roll being lost) ; 1901, People v.
Holmes, 166 id. 540, 60 N. E. 249 (grantor's
oral admissions as to title, excluded where the
issue was merely whether land was within the
boundary of a certain lot).
Other Jueisdictioss: N. Br.: 1851, Doe
V. Todd, 2 All. 261, 264 (oral admissions by tlie
plaintiff's grantor, that he had conveyed to de-
fendant's grantor, excluded ; " it would entirely
destroy the effect of the statute of frauds ") ; iv.
Sc. : 1681, Fairbanks ». Kuhn, 14 N. Sc. 147, 154
(defendant's admissions of holding under a lease,
not accounted for, the defendant having shown
a title by deed, held not sufficient ; quaere
whether admissible); Ark.: 1882, Dorr v.
School District, 40 Ark. 237, 242 (testimony
to acknowledgment of deed, used when offered
" for a collateral purpose ") ; Cal. : 1877, McFad-
den V. Ellmaker, 52 Cal. 348, 350 (question ex-
pressly reserved) ; 1882, People v. JBlake, 60 id.
497, 503, 511 (SicKee and Boss, J.J., dissented
on apparently the principle of oral disclaimer in
the New York cases ; but the majority ignored
the point) ; Conn. : 1837, Deming v. Carrington,
12 Conn. 1, 6, semble (plaintiff's predecessor's
admissions that a deed to himself as sole grantee
was for the benefit of defendant, said to be
inadmissible) ; la. . 1902, Walter v. Brown,
115 la. 360, 88 N. W. 832 (admissible, when
" not in contradiction of the record title " ; here,
as to knowledge of a mortgage) ; Mass. : 1841,
Proprietors v. BuUard, 2 Mete. 363, 368 (ad-
missions received, but here the title admitted
was prescriptive merely) ; 1861, Osgood v. Coates,
1 All. 77, 79 (admissions received ; point not
raised); Mich.: 1878, Cook v. Knowles, 38
Mich. 316 (grantor's admissions that his deed
was falsely antedated, received, in order to oust
his record-title by notice of a prior title ; Cooley,
J , diss., following Jackson v. Cole, N. Y., and
distinguishing between "receiving declarations
1512
to overthrow a title by deed and a title where
no deed or other writing is needful ") ; N. H. :
1849. Cilley v. Bartlett, 19 N. H. 312, 323
(defendant's admissions of plaintiff's title, held
decisive, if believed ; but here the plaintiff was
grautee in the deed, and the defendant claimed
as beneficiary) ; 1858, Fellows w. Fellows, 37 id.
75, 85 (oral admissions of non-title, held receiv-
able) ; 1860, Hurlburt v. Wheeler, 40 id. 73, 76
(same) ; N. J. : 1856, Ten Eyck v. Runk, 26
N. J. L. 513, 517 (admissions receivable so far
as " the extent of the right does not appear on
the face of the title-deeds ") ; Pa. : 1782, Morris
V. Vanderen, 1 Dall. 64 (ejectment ; defendant's
oral admission that he was lessee only, received) ;
1832, Gibblehouse ». Stong, 3 Rawle 436, 442
(declarations by a prior owner, that he had not
paid the price but held in trust for another,
admitted ; Huston, J., diss., approving Jackson
V. Shearman, N. Y., since here " the title of the
plaintiff depended on facts and recorded deeds,
and could not be affected by parol declarations
of any prior owner " ; yet declarations as to
boundary would not be excluded by this rule) ;
1838, Criswell v. Altemus, 7 Watts 565, 578
(oral admissions of taking a lease, held sufficient
as an admission of non-adverse possession) ;
D. S.: 1873, Smiths v. Shoemaker, 17 Wall.
630, 638 (claim of title by gift of K. ; letters by
the claimant in possession, acknowledging the
title of J. C, received) ; 1876, Dodge v. Freed-
man's S. & T. Co., 93 U. S. 379, 383 (predecessor's
admissions are not receivable " to sustain or
destroy the record title " ; following Jackson v.
Miller, N. Y.); Utah: 1902, Scott v. Crouch,
24 Utah 377, 67 Pac. 1068 (M.'s admission tliat
he had given a deed to D., received against M.'s
administrator) ; Vt. : 1841, Carpenter v. HoUis-
ter, 13 Vt. 552, 555 (defendant's grantor in pos-
session and before grant; his oral admissions
that his own grantor, plaintiff's intestate, was
insane when granting, excluded, against an in-
nocent purchaser for value ; because one holding
by title good as appears of record should not
" be defeated by the private concessions of any
previous owner"; allowable only when made
by occupier as to "character and extent of
possession," i. e. that he possessed as tenant or
according to certain boundaries); 1842, Hines
V. Soule, 14 id. 99, 105 (Carpenter v. Hollister
approved).
"1849, Doe V. Biggers, 6 Ga. 188, 201 (oral
admissions of execution, received). See post,
§ 2132.
9 1845, Thompson v. Fry, 7 Blackf. 608 (ad-
mission that the items in a book, not produced,
were correct; insufBcient). But the terms of
the document need not be precisely given : post,
§ 2105.
1" 1831, Pettigru v. Sanders, 2 Bail. 549.
Compare the English rule supra, § 1256.
§§ 1177-1282] EXCEPTION FOR PARTY'S ADMISSIONS. § 1259
§ 1258. (3) Witness' Admission of Contents, on Voir Dire. When the dis-
qualification by interest prevailed {ante, § 576), it was well settled that,
where the disqualifying fact was contained in a document, its terms might
be established by the opponent's examination of the witness on voir dire.
The reasons given for this exception are not always the same ; but the tra-
ditional and the correct one seems to be that, since the person to be called as
witness might not be known in advance to the opponent, it would be prac-
tically impossible for him to have tlie document at hand :
1830, Weston, J., in Miller v. Mariner's Church, 7 Greeul. 51, 54 : " An objection to
the witness on the ground of interest is often unexpectedly made. Neither the witness,
therefore, nor the party producing him can be reasonably required to have with them
written papers or documents which may happen to be referred to upon such an inquiry."
1852, Counsel, arguing in Macdonnell v. Evans, 11 C. B. 930, 937 : " The rule as to
examinations on voire dire is thus stated in Russell [on Crimes, II, 987] : ' The party ob-
jecting could not know previously that the witness would be called, and consequently
might not be prepared with the best evidence to establish his objection ' " ; Maule, J. :
" In many cases witnesses are called whom the opposite party has no reason to expect to
see ; the reason, therefore, given in that book is not a good one. An examination on the
voire dire is for the purpose of establishing something of which the Court is to be the
judge, and not the jury. It may well be, therefore, that the rule there is not so exclusive
as in the case of an examination going to a jury.''
That the reason above-named, rather than the reason suggested by Mr. J.
Maule, in the passage just quoted, was the true reason, is indicated by a
qualification, laid down in some cases, that if the incompetency was clear and
could be noticed merely on objection made, and a document removing it
must clearly have been known beforehand to the party offering the witness,
then he could not prove the removal of the incompetency by a re-examina-
tion without producing the document — e. g. a release — removing it.^ But
the general rule, irrespective of this modification, was well settled.^
§ 1259. (4) Witness' Admission of Contents, on Cross-Examination ; Rule
in The Queen's Case; Principle. In the year 1820 an English decision, soon
afterwards expressly annulled by legislation, but widely followed in this
country in ignorance of its repudiation in the jurisdiction of origin, laid
1 1829, Goodhay v. Hendry, M. & M. 319, witness for a township, allowed to be asked
Best, C. J. (a bankrupt, desired to be shown whether he was rated for taxes, without pro-
discharged by his certificate); Anon., ib. 321, ducing the rate-book); 1824, Carlisle v. Eadv,
note, Tindal, C..J. (same), semble. Contra: 1 C. & P. 234 (a bankrupt allowed to be asked
Wandless v. Cawthorne, ib. note, Parke, B. ; as to his certificate of discharge) ; 1837, R. !•.
1839, Lunniss v. Row, 10 A. & E. 606 (objection Murphy, 8 id. 297, 304; 1852, Cresswell and
to competency may be removed by oral evi- Maule, JJ., in Macdonnell v. Evans, 11 C. B.
dence of a release-document, even though the 930, 937 ; 1849, Herndon v. Givens, 16 Ala. 261,
objection was revealed to the party by the 268; 1849, Robertson v. Allen, ib. 106, 108
pleadings). So, too, the following variation: (even by another witness); 1824, Stebbins v.
1818, Butler v. Carver, 2 Stark. 433 (the wit- Sackett, 5 Conn. 258, 262; 1863, Babcock v.
ness having the document in court, production Smith, 31 111. 57, 61 (that a judgment had been
was held necessary). obtained against him, allowed); 1830, Miller
2 1794, Butchers' Company v. Jones, 1 Esp. v. Mariner's Church, 7 Greenl. 51, 54 ; 1868,
160 (a question on the counter-examination Nutall v. Brannin, 5 Bush 11, 18; 1844, Oaks
allowed to show that a disqualification had v. Weller, 16 Vt. 63, 68 (where the witness is
ceased); Botham o. Swingler, ib. 164 (same; out of the State and his deposition is offered,
restoration to competency by oral evidence, another witness may testify to a release given
aUowed); 1811, R. v. Gisburn, 15 East 57 (a to the deponent, without producing it).
1513
§ 1259 DOCUMENTARY OEIGINALS. [Chap. XXXIX
down a rule which for unsoundness of principle, impropriety of policy, and
practical inconvenience in trials, committed the most notable mistake that
can be found among the rulings upon the present subject. The doctrine laid>
down in The Queen's Case professed to apply the rule now under considera-
tion, namely, that when the terms of a document are to be established, the
document must be produced or accounted for ; and its application here took
the following shape : When a witness is to be asked on cross-examination as
to the terms of a document written or signed by him, the document must be
at the time produced and shown or read aloud to him before he can be asked
as to its contents ; in other words, he cannot be asked whether or not he said
such and such things in the document, but the supposed document must be
first shown to him before any questions upon its contents are allowable:
1820, The Queen's Case, 2 B. & B. 286 ; the House of Lords put the following ques-
tions to the Judges : " First, whether, in the courts below, a party on cross-examination
would be allowed to represent in the statement of a question the contents of a letter, and
to ask the witness whether the witness wrote a letter to any person with such contents,
or contents to the like effect, without having first shown to the witness the letter, and hay-
ing asked that witness whether the witness wrote that letter and his admitting that he
wrote such letter ? . . . Thirdly, whether, when a witness is cross-examined and, upon
the production of a letter to the witness under cross-examination, the witness admits
that he wrote that letter, the witness can be examined, in the courts below, whether he
did not in such letter make statements such as the counsel shall, by questions addressed
to the witness, inquire are or are not made therein ; or whether the letter itself must be
read as the evidence to manifest that such statements are or are not contained therein ? "
Abbott, C. J., for the judges, answered the first question in the negative : " The contents
of every written paper are, according to the ordinary and well-established rules of evi-
dence, to be proved by the paper itself, and by that alone, if the paper be in existence ;
the proper course, therefore, is to ask the witness whether or no that letter is of the
handwriting of the witness ; if the witness admits that it is of his handwriting, the cross-
examining counsel may at his proper season read that letter as evidence"; the second
question was answered thus : " The judges are of opinion, in the case propounded, that the
counsel cannot, by questions addressed to the witness, enquire whether or no such state-
ments are contained in the letter, but that the letter itself must be read to manifest
whether such statements are or are not contained in that letter. . . . [The judges] found
their opinion upon what in their judgment is a rule of evidence as old as any part of the
common law of England, namely, that the contents of a written instrument, if it be in
existence, are to be proved by that instrument itself and not by parol evidence."
18S2, Macdonnell v. Evans, 11 C. B. 930 ; to show that the witness had been disgraced
by a charge of forgery, he was asked : " Did you not write a letter [not in question] in
answer to a letter charging you with forgery ?" Maule, J. : "It you want the jury to
know that there was a letter containing a charge of forgery, the proper way to do so is
by producing the letter itself. . . Suppose the witness had said, ' 1 did write this letter
in answer to another, which is in court,' good sense obviously requires that the latter
should be produced, if it is wished to get at its contents. . . . This seems to me to be just
the sort of case where it is sought to give secondary evidence of the contents of a docu-
ment in the power of a party who does not choose to produce it " ; Cresswell, J. : " Shift
it as you will, it was a mere attempt to get in evidence of the contents of a written docu-
ment without putting in the document itself." *
' In this case, note that the witness, by the same footing as his own, under the principle
answering the first letter, pat its contents ou of § 2102, post.
1514
§§ 1177-1282] EXCEPTION FOR OPPONENT'S WITNESS. § 1260
It may be noted that this doctrine was a pure creation of this decision of
1820, and had never before been advanced j^ though by the pronouncement
of the Judges in the House of Lords it was followed thereafter by the Courts
as the law of the land.*
§ 1260. Same: Arguments against the Rule. It cannot be denied that
there is a certain plausibility in the doctrine as expounded in the above
passages, and this will account for its easy acceptance in other jurisdictions ;
and yet there are so many arguments against it and they have been so
thoroughly exploited that its perpetuation ia this country is somewhat
surprising.
(1) In the first, place, then, let it be granted for argument's sake that by
asking the witness without producing the document the rule of production
is broken in upon. Why not recognize for such a case an exception to the
rule ? (a) There can be no case in which the contents of the document
could be more trustworthily established. It is the witness' own document.
No one can know better than himself what is in it. If its contents as a
lost document were to be proved, this person would be the very one to be
called. There can be no suspicion of misstatement, first, because the witness
has been called for the other party, and, secondly, because the opponent now
cross-examining is (in the usual case) desirous of discrediting the witness by
the document, and the last thing to be feared is that the witness will mis-
represent the document in favor of the cross-examiner. If the opponent is
willing to take a hostile witness' statement of contents, who else needs to
fear misrepresentation ? (6) But the rule of production, — is it, then, indeed
so sacred and inflexible ? A number of instances have been noted in which
production is dispensed with as a part of the rule itself. It has also been
seen that there, is a long-established exception for documents collaterally
in issue {ante, § 1252) ; and where the witness (as in the usual case) is
sought to be discredited by prior written statements, the principle of that
exception is certainly satisfied.^ It has also just been seen {ante, § 1258)
that another exception is well-established for the case of a witness cross-
examined to interest on the voir dire; there the effect of allowing proof
by questions is much more radical, for it wholly excludes the witness, while
^ 1754, Canning's Trial, 19 How. St. Tr. 487 v. Taylor, ib. 726 (rule applied) ; 1852, Macdon-
(doctrine not recognized); 1816, Graham v. nell «". Evans, 11 C. B. 930 (quoted swpia).
Dyster, 2 Stark. 21, Ellen borou^Ii, L. C. J. "■ 1824, Starkie, Evidence, I, 203 (" It is a re-
(wliere the docnments vrere part of defendant's markable circumstance that the question was
case but in plaintiff's possession, and the defend- never, in the course of inquiry in the case which
ant was not allowed to ask contents on cross- occasioned so much discussion on the subject,
examination ; but the reason was merely that directly raised whether a cross-examination as
it was an improper stage of the case, and no to something written by the witness, for the
views were expressed on the point in question) ; purpose not of proving any fact in the cause but
1817, Sideways v. Dyson, ib. 49, EUenborough, simply of trying the credit or ability of the
Tj. C. J. (same situntion, but defend.int offered witness, was subject to the same strict rules
another witness to the contents, as the basis of as governed examination for proving material
a cross-examination ; rejected, the proper time facts. . . . The principle of the rule [that the
not having been reached). best evidence should be adduced] is ajjplicable
' 1837, R. V. Mnrphy, 8 C. & P. 297, 304 only to evidence to prove a material fact, and
(questions as to an article in a newspaper is inapplicable where the object is merely to try
written by the witness; rule applied) ; 1839, K. the credit or ability of the witness"); so also
Phillipps, EvideuceJ 302.
VOL. II. — 33 1515
§ 1260 DOCUMENT AEY ORIGINALS. [Chap. XXXIX
here it merely discredits him. It has also been seen Qante, § 1255) that
another exception exists for a party's admissions of contents ; and the only
risk which there exists — the possibility of fabricated testimony to the ad-
mission — is here entirely obviated by the witness' admission being made on
the stand. With so many recognized limitations and analogous exceptions
to the rule of production, it is pedantic to treat the present question as
involving a novel inroad upon a hitherto inviolable and inflexible rule,
(e) But, it is said, a witness' admissions are not admissions in the sense
that a party's are.^ Very true ; what a party says out of court is evidence,
but not what a witness says out of court {ante, § 1069). But this is not
said out of court ; it is said in court. It is testimony, not an admission in
the common significance. Moreover, it is in the usual case (as above pointed
out) decidedly trustworthy testimony, for it is against interest, (t^) But,
again it is said, there is no precedent for it. This, to be sure, is very little
of au argument from a Court which in the same case upset the traditions of
the Bar on another point by establishing another novelty already examined
{ante, § 1026). But on this very point the Court itself in The Queen's Case
cited no precedent in its own behalf ; if there was no precedent for the present
contention, there was at least no precedent against it. The Court alluded to
the current practice as in harmony with its ruling ; but (as above noted) the
practice had before then not been in harmony with it, and the vigorous pro-
tests of Mr. Starkie, Mr. Phillipps, and other practitioners made shortly
afterwards, indicate that the ruling was a surprise to the Bar. Moreover,
the exceptions already pointed out, for a witness on voir dire and for col-
lateral documents were close enough in principle to serve as precedents. In
sum, then, such questions should be allowed as a matter of principle, even if
their allowance involved a distinct exception to the rule of production.**
(2) But in any event, the principle is misapplied. Assuming that the rule
of production should suffer no exception even where the document is only
collaterally to be used and even where the witness' statement is trustworthy
because made against his interest, nevertheless the rule in The Queen's Case is
fallacious in that it does not correctly apply the principle it professes to in-
voke. The rule of production, with which our concern has been, calls for
^ 18.'52, Counsel in Macdonnell v. Evans, U possession only of a part of the contents of the
C. B. 937 (quoting Taylor on Evidence, "As written paper; and thus the Court may never
the parol admissions of parties are now receiv- be in posse.ssion of the whole, tliough' it may
able in evidence although they relate to the happen that the whole, if produced, may have
contents of deeds or records [citing Slatterie v. an effect very different from that which might
Pooley], the same rale would seem to render be produced by a statement of a part." But
the answers of a witness admissible in the case this olijection is amply disposed of: (1) in the
just put " ; Cresswell, J. : " There is this strik- first place, the document itself may be produced
ing difference between the two cases : a party is by the witness' party, if it is in court or in his
allowed to affect his own rights by parol admis- posses,sion, to show the total effect of it ; (2) the
sions, but here the admission [by a witness witness on re-examination may testify to any
only] would affect the parties in the cause"). other terms of the document which counteract
^ The Judges in The Queen's Case also gave the possible wrong impression given by a part,
the following reason, based on the principle of under the ordinary principle of Completeness
Completeness (post, § 2102): "If the course (post, § 2116) ; (3) the whole would have to be
which is here proposed should be followed, the produced, iu any case, when offered,
cross-examining counsel mav put the Court in
1516
§§ 1177-1282] EXCEPTION FOE OPPONENT'S WITNESS. § 1260
the exhibition of the document itself to judge and jury, in distinction from
evidence about the document by a witness. The judge and the jury are sup-
posed to ascertain its contents by inspection, as a source of proof superior to
the assertions of witnesses. Now this production to judge and jury has noth-
ing to do with a showing to a witness. It is not any witness that is to deter-
mine the contents of the document, but the tribunal (ante, § 1185). Yet the
Judges' answer to the first question in The Queen's Case requires a showing
to the witness, by virtue of the rule for production of documents.* Such a
showing has nothing whatever to do with that rule. There is no reason why
the document should be shown to this witness rather than to any other wit-
ness in the case. It cannot be that the preliminary asking which is required
in preparing to impeach by proving inconsistent statements {ante, § 1026)
calls for such a showing ; that requirement calls only for a fair warning as
to the subject of the statement, and, in some jurisdictions, a further specifi-
cation of time, place, and person ; it was never supposed, nor do the Judges
in The Queen's Case contend, that the showing of the document to the wit-
ness was any consequence of the rule as to impeachment by inconsistent
statements. Observe, then, the fallacious and inconsequential nature of this
rule that the document must be shown, as laid down by The Queen's Case : A
certain principle about proving a document by production to judge and jury
is said to involve a rule requiring the showing of the document to a witness ;
do, then, what this supposed rule dictates — namely, show the document to
the witness — and thus satisfy the supposed rule ; yet you are still no nearer
than before to satisfying the above general principle about proving docu-
ments by production. In other words, if the cross-examiner were to show
the document to the witness and put it in his pocket again, he would have
satisfied the rule laid down by the first answer in The Queen's Case, and yet
he would not have satisfied the general principle of production from which
that answer professed to deduce that rule.® This fallacy is worth noting,
for it is fundamental. The showing to the witness for his perusal is pre-
cisely the thing which the cross-examiner (for tactical reasons noted later)
wishes in the usual case to avoid, and this same showing is a process which
is in no way properly involved in the general principle invoked in The
Queen's Case.
(3) Hitherto, it has here been assumed that the principle of production
does apply to require at least production, and that (as in (1) supra) the case
may be met by establishing an exception to the general principle. But, in
truth, in the usual case, that principle does TUJt require production at the time
* Their answer to the third question, it is * It may be said that the cross-examiner
true, does require merely a reading of the docu- must in any case show it to tlie witness in order
ment, which is a legitimate way to satisfy the to gpt an admission of its execution. The
rule of production (ante, § 118.5). But there is answer to this is (1) it would he enough for this
nothing in the correct rule which requires such purpose to show the signature, (2) the cross-
a reading at .that stage of the case, i. e. before the examiner might equally well prove the execution,
witness is asked ; the reading could properly if he pleased, by calling the same or some other
wait until the cross-examiner is ready to put in witness when he came to put in his own case,
his own case ; and this indeed the judges pre-
scribe as the normal rule.
1517
§ 1260 DOCUMENTARY ORIGINALS. [Chap. XXXIX
of asking the witness. Let us take, as the usual case, an attpmpt to impeach
a witness by showing that he has at a former time in writing made an incon-
sistent statement on a material point or expressed a bias or a corrupt design
against the opponent. The rule of impeachment applicable to such an
attempt requires {ante, § 1025) that he shall be asked before leaving the
stand whether he has made the statement subsequently to be proved against
him. Now this asking, so far as it is a requirement, is not for the pur-
pose of then and there proving the statement, but merely for the sake
of fairly notifying him that the proof is to be offered ; the requirement is
satisfied by the mere asking, no matter what his answer (ante, §§ 1025,
1037). The cross-examiner, then, need not, if he does not choose, take an
affirmative answer as proof; he has asked merely to satisfy the rule of
fairness, and will in due time make the proof by producing the other wit-
ness (if it was an oral statement) or the document (if it was a written state-
ment). Since, then, the asking is not done for the sake of proving the
statement, the rule about proving a document's contents by production is not
violated by the asking ; the proof of the statement will be made later by
the production of the document. This is clear enough, where the witness'
answer is a denial of making the statement ; but it is also true even where
the witness' answer is an affirmative one ; for the cross-examiner is not
violating the documentary rule if he does not seek to accept the witness'
answer in proof but proposes later during his own case to prove the state-
ment and satisfy the documentary rule by producing the document. If then
the cross-examiner does propose to prove the statement by the subsequent
production of the document, and repudiates any desire to use the witness'
affirmative answer as such proof (the asking, of course, is forced upon the
cross-examiner by the impeachment-rule), he is not violating the documentary
rule by not producing the document at that stage. Yet The Queen's Case
erroneously assumes that he is. In other words, the impeachment-rule
forces the cross-examiner to ask the question, and then The Queen's Case
rule forbids him to ask it by conclusively imputing to him an intention
to use a possible affirmative answer in a way in which he does not pro-
pose to use it even if it is given. Such is another of the incongruities of
that rule.*
(4) The great objection, however, to the rule of showing, laid down in the
first answer in The Queen's Case is one of practical policy. The circumstance
which brought about such active opposition to it at the English Bar is that
it abolished a most effective mode of discrediting a witness on cross-examina-
tion. Suppose, for example, that it is desired to show that the witness has
in writing made a statement contrary to his present one, or has in writing
shown bias or a corrupt intent ; it is no doubt something accomplished to
" It is to be noted that the above criticism is tents of a document material under the plead-
expressly njade applicable to the " usual case," ings, it is clear that the rule of production does
I.e. of attempting to discredit by proving an forbid this, and what is said in (3) above does
inconsistent or biassed statement. Where, on not apply, although some of the considerations
the other hand, the attempt is to prove the con- mentioned in (1) supra are still applicable.
1518
§§ 1177-1282] EULE IN THE QUEEN'S CASE. § 1260
prove this by producing the writing ; but much more, perhaps the entire
overthrow of the witness, can be achieved if it is also made to appear that
he is ready to falsify upon the stand in denial of this statement, or that he
cannot correctly remember what he then wrote. Almost every strongly-
contested trial affords examples of such an exposure ; and it was by the loss
of this weapon that the great practitioners contemporary with The Queen's
Case were most keenly touched. Their criticism was unsparing ; ' and the
following passages forcibly illustrate their objections :
1824, Mr. Thomas Starkie, Evidence, I, 203 : "That the permitting such a cross-exam-
iuatiou may frequently supply a desirable test for trying the memory and the credit of a
■witness admits of little doubt. If, for example, a witness profess to give a minute and
detailed aocountof a transaction long past, such as the particulars of a conversation or
the contents of a written document, and consequently where much depends upon the
strength of his memory, it is most desirable to put that memory to the test by every fair
and competent means. ... If he either deny that he has made any representation on the
subject, or be unable to recollect what statement he has made, the circumstance tends to
impeach the faithfulness of his memory, even to a greater extent than if the representar
tion had been merely oral, inasmuch as the act of writing is more deliberate and more
likely to remain impressed on the memory than a mere oral communication. ... A cross-
examination of this nature affords no mean test for trying the integrity of the witness.
An insincere witness, vvho is not aware that his adversary has it in his power to contradict
him, will frequently deny having made declarations and used expressions which he is on
cross-examination ultimately forced to avow ; and it often happens that by his palpable
and disingenuous attempts to conceal the truth he betrays his real character ; and thus
his denials, his manner and conduct, become of far greater importance, and much more
strongly impeach his credit, than the answer itself does which he is at last reluctantly
constrained to give. Where the party is confined to the mere production and reading of
the paper, without previous cross-examination, all inferences of this nature are obviously
excluded."
1828, Feb. 7, Mr. Henry Brougham, Speech on the Courts of Common Law, Hans. Pari.
Deb., 2d ser., XVIII, 213, 219 : " If I wish to put a witness' memory to the test, I am not
allowed to examine as to the contents of a letter or other paper which he has written.
I must put the document into his hands before I ask him any questions upon it, though
by so doing he at once becomes acquainted with its contents, and so defeats the object of
my inquiry. That question was raised and decided in the Queen's case, after solemn argu-
ment, and, I humbly venture to think, upon a wrong ground, namely, that the writing is
the best evidence and ought to be produced, though it is plain that the object is by no
means to prove its contents. Neither am I, in like manner, allowed to apply the test
to his veracity ; and yet, how can a better means be found of sifting a person's credit,
supposing his memory to be good, than examining him to the contents of a letter, written
by him, and which he believes to be lost ? . . . I shall not easily forget a case in which
a gentleman of large fortune appeared before an able arbiti'ator, now filling an eminent
judicial place, on some dispute of his own, arising out of an election. It was my lot to
cross-examine him. I had got a large number of letters in a pile under my hand, but
concealed from him by a desk. He was very eager to be heard in his own cause. I put
the question to him: 'Did you never say so and so?' His answer was distinct and
ready, — ' Never.' I repeated the question in various forms, and with more particularity,
and he repeated his answers, till he had denied most pointedly all he had ever written
on the matter in controversy. This passed before the rules in evidence laid down in the
' " Opposed as the answers were to the most elementary principles of evidence," said Mr. Best,
for example.
1519
§ 1260 DOCUMENTAET OEIGINALS. [Chap. XXXIX
Queen's case-, consequently I could examine him without putting the letters into his
hand. I then removed the desk, and said, 'Do you see what is now under my hand?'
pointing to about fifty of his letters. ' I advise you to pause before you repeat your
answer to the general question, whether or not all you have sworn is correct.' He
rejected my advice, and not without indignation. Now, those letters of his contained
matter in direct contradiction to all he had sworn. I do not say that he perjured him-
self, far from it. I do not believe that he intentionally swore what was false; he
only forgot what he had written some time before. Nevertheless he had committed
himself, and was in my client's power."
1849, Mr. W. M. Best, Evidence, § 478 : " By requiring the document containing the
supposed contradiction to be put into the hands of the witness in the first instance, the
great principle of cross-examination is sacrificed at once. When a man gives certain
evidence, and the object is to show that he has on a former occasion given a different
account, common sense tells us that the way of bringing about a contradiction is to ask
him if he has ever done so. . . . Yet, according to the practice under the resolutions in
Queen Caroline's Case, if the witness had taken the precaution to reduce his previous
statement to writing, the writing must be put into his hands accompanied by the question
■whether he wrote it, thus giving him full warning of the danger he had to avoid and full
opportunity of shaping his answers to meet it."^
These criticisms expose the great fault m the ruling in The Queen's Case.
It was unsound in principle because there is no reason why an adverse
witness' testimony to contents on cross-examination should not — at least in
the trial Court's discretion — be sufficient proof. But it also sinned against
sound policy because it unnecessarily diminished the utility and effective-
ness of that great instrument for the discovery of lies, — cross-examination.
In the following passages from celebrated trials may be seen the efficiency
of cross-examination, when unhampered by the rule, in exposing a falsifier :
1811, Berkeley Peerage Trial, Sherwood's Abstract, 120; Mrs. Jane Price, who had
formerly lived as governess in the family of Lord Berkeley, was called to testify against
the claim represented by Lady Berkeley; she had been asked: "Do you entertain
any malice or ill-will towards Lady Berkeley, or any one of her family?" and had said,
"Oh, none, upon my oath"; she was then asked as follows: "Did you not tell Lady
Berkeley you would be her greatest enemy ? " " Oh, never ; Lady Berkeley cannot say
it, for I never did." Afterwards the following paper was shown to the witness, and she
was asked, " Is not the whole of this letter your handwriting? " — " Yes, the whole of this
is mine." The same was then read, as follows : " Saturday, July 20th, 1799. Mrs. Price
feels herself treated so unlike a gentlewoman in every respect in Lord Berkeley's family
that she begs leave to say she wishes to be no longer engaged therein ; though she does
not mean to quit it without first informing her Ladyship, it is in Mrs. Price's power to be
her greatest enemy."
1827, M'Garahan v. Maguire, Mongan's Celebrated Trials in Ireland, 16, 26; seduction
of the plaintiff's daughter, the defendant being a priest ; the case was shown by the
evidence to be one of mere blackmail, but this was at the outset not apparent ; the chief
and first witness for the prosecution was Anne M'Garahan, the supposed victim of the
defendant ; and upon her cross-examination by Mr. Daniel O'Connell, the following pas-
sages took place : Mr. O'Connell : " Did you ever take a false oath about the business ? "
Witness : " Not that I recollect " ; Mr. O'Connell : " Great God, is that a thing you could
have forgotten?" Witness: "I believe I did not. lam sure I did not"; Mr. O'Con-
nell: "Oh, I see I have wound you up. Perhaps, then, you will tell me now, did you
8 See also the following criticisms: 1853, Report, 20; 1820, Mr. Z)enman, arguing in The
Common Law Practice Commissioners, Second Queen's Case, Lino's ed. I, 465.
1520
§§ 1177-1282] EULE IJST THE QUEEN'S CASE. § 1260
ever swear it was false? " Witness : " I never took an oath that the charge against Mr.
Maguire was false. I might have said it, but I never did swear it." . . . Mr. O'Connell :
" Did you ever say that your family was offered £500 or £600 for prosecuting Mr. Ma-
guire?" Witness: "I don't recollect"; . . . Mr. O'Connell: "Did you ever say that
you would get £600 for prosecuting him?" Witness : "I never did"; Mr. O'Connell :
"Or write it?" Witness: "Never"; Mr. O'Connell: "Is that your handwriting?"
here a letter was handed to her; Witness: "It is"; Mr. O'Connell: "And yet you
never wrote such a letter!" The letter read in part: "Dear Mr. Maguire, . . . lam
the innocent cause of your present persecution. ... Is there a magistrate in this county
you can safely rely upon ? If there is, let him call here as it were on a journey to feed
his horse ; let him have a strong affidavit of your innocence in his pocket ; let me in the
mean while know his name, that I may have a look out for him, and while his horse is
feeding, I will slip down stairs and swear to the contents ; I have already sworn to the
same effect, but not before a magistrate. . . . £600 have been offered our family to
prosecute you, but money shall never corrupt my heart." Witness : " I did not think
when you were questioning me that you were alluding to this letter. I could not have
supposed Mr. Maguire would have been so base as ever to have produced this letter,
after swearing three solemn oaths that he would not. If I thought he would, I should
have certainly told my counsel about it." After further questioning, "the witness
seemed overcome ; and she turned to the defendant, exclaiming, ' Oh, you villain I you
villain!'"
1888, Parnell Commission's Proceedings, 54th day, Times' Eep. pt. 14, pp. 194, 195 ;
this was virtually an action by Mr. Parnell and others, against the Londou " Times," for
defamation, in charging among other things that Mr. Parnell had approved the Phoenix
Park assassination ; this charge was based on alleged letters of Mr. Parnell, plainly ad-
mitting complicity, sold to " The Times " by one Kichard Pigott, an Irish editor, living in
part by blackmail, who claimed to have procured them from other Irishmen. Pigott
himself turned out to have forged them; but the case for their authenticity seemed
sound, until Pigott was placed on the stand for " The Times " and came under the cross-
examination of Sir Charles Russell. The object of the ensuing part of the cross-examina-
tion was to bring out Pigott's shiftiness in first selling the letters as genuine to " The
Times," and then offering to the Parnell party for money to enable them to disprove
the letters' genuineness. The letters had been first published in a series of articles
entitled " Parnellism and Crime," beginning March 7, 1887, and bringing temporary oblo-
quy to the Parnell party and causing the passing of the Coercion Act. Archbishop Walsh,
mentioned in the examination, was an intimate friend of Mr. Parnell. Pigott, in his
prior examination, had claimed that he had handed the letters to " The Times" merely
for the latter's protection, to substantiate the articles, and that the publication of the
letters "came upon me hy surprise"; the falsehoods exposed in the following answers
were in a sense partly immaterial, but they served all the more to show the man's thor-
oughly false character : Q. " You were aware of the intended publication of that corre-
spondence?" A. " No, I was not at all aware." Q. "What?" A. " Certainly not." . . .
Q. " You have already said that you were aware, although you did not know they were
to appear in ' The Times,' that there were grave charges to be made against Mr. Parnell
and the leading members of the Land League? " A. "I was not aware till the publica^
tion actually commenced." Q. "Do you swear that?" A. "Ido." Q. " No mistake
about that?" A. "No." Q. "Is that your letter (produced)? Don't trouble to read
it." A. "Yes; I have no doubt about it." Q. "My Lords, that is from Anderton's
Hotel, and is addressed by the witness to Dr. Walsh, Archbishop of Dublin. The date,
my Lords, is March 4, 1887, three days before the first appearance of the first series of
articles known as 'Parnellism and Crime.' (Reading.) 'Private and confidential. My
Lord, — The importance of the matter about which I write will doubtless excuse this
intrusion on your attention. Briefly, I wish to say that / have been made aware of the
details of certain proceedings that are in preparation with the object of destroying the influ-
1521
§ 1260 DOCUMENTARY OEIGINALS. [Chap. XXXIX
ence of the Parnellite party in Parliament.' (To witness.) What were these certain pro-
ceedings that were iu preparation ? " A. " I do not recollect." Q. " Turn to my Lord's,
Sir, and repeat that answer." A. " I do not recollect." Q. "Do you swear that, writ-
ing on the 4th of March and stating that you had been made aware of the details of
certain proceedings that were in preparation with the object oi destroying the influence
of the Parnellite party iu Pailiament less than two years ago, you do not know what that
referred to?" A. "I do not know really." Q. "May I suggest?" A. "Yes." . . .
Q. "Did that passage refer to these letters, among other things?" A. "No, I rather
fancy it had reference to the forthcoming articles." Q. "I thought you told us you did not
know anything about the forthcoming articles?" A. " Yes, I did. I find now that I am
mistaken, but I must have heard something about them." Q. " Try and not make the
same mistake again, if you please. (Reading.) ' I cannot enter more fully into details
than to state that the proceedings referred to consist in the publication of cei-tain
statements, purporting to prove the complicity of Mr. Parnell himself and some of his
supporters with murders and outrages in Ireland, to be followed in all probability by the
institution of criminal proceedings against these parties by the government.' Who told
you that ? " A. " I have no idea." Q. " Did that refer, among others, to the incrimina-
tory letters ? " A. " I do not recollect that it did." Q. "Do you swear it did not?"
A. " 1 will not swear it did not." Q. " Do you think it did ? " A. " No." Q. " Very
well ; did you think that these letters, if genuine, would prove, or would not prove, Mr. Parnell's
complicity with crime f" A. "I thought they were very likely to prove it." Q. "Now,
reminding you of that opinion, and the same with Mr. Egan, I ask you whether you did
not intend to refer — I do not suggest solely, but among other things — to the letters as
being the matter which would prove, or purport to prove, complicity ? " A. " Yes, I may
have had that in mind." Q. " You can hardly doubt that you had that in your mind ? "
A. "I suppose I must have had." Q. "(Reading.) 'Your Grace may be assured that
I speak with full knowledge, and am in a position to prove beyond all doubt or question
the truth of what I say.' Was that true?" A. "It could hardly have been true."
Q. " Then you wrote that which was false ? " A. " I did not suppose his Lordship would
give any strength to what I said. I do not think it was warranted by what I knew."
Q. " Did you make an untrue statement in order to add strength to what you had
said? " A. " Yes." Q. " A designedly untrue statement, was it ? " A. " Not designedly."
Q. "Try and keep your voice up." A. "I say, not designedly." Q. " Accidentally ? "
A. "Perhaps so." Q. " Do you believe these letters to be genuine?" A. "I do." Q. "And
did at that time?" A. "Yes." Q. "(Reading.) 'And I may further assure your
Grace that I am also able to point out how the designs may be successfully combated and finally
defeated.' (To witness.) Now if these documents were genuine documents, and you
believed them to be such, how were you able to assure his Grace that you were able to
point out how the designs might be successfully combated and finally defeated ? "
A. " Well, as I say, I had not the letters actually in my mind at that time, so far as I can
remember. I do not recollect that letter at all." Q. " You told me a moment ago without
hesitation that you had both in your mind?" A. "But, as I say, it had completely
faded out of my memory." Q. " That 1 can understand." A. " I have not the slightest
idea of what I referred to." Q. "Assuming the letters to be genuine, what were the
means by which you were able to assure his Grace you could point out how the designs
might be successfully combated and finally defeated ? " A. "I do not know." Q. "Oh,
you must think, Mr. Pigott, please. It is not two years ago, you know. Mr. Piirott, had
you qualms of conscience at this time, and were you afraid of the consequences of
what you had done ? " A. "Notatall." Q. " Then what did you mean ? " A. " I can-
not tell you at all." Q. "Try." A. "I cannot." Q. "Try." A. " I really cannot."
Q. " Try." A. " It is no use." Q. " Am I to take it, then, that the answer to my Lords
is that you cannot give any explanation?" A. "I really cannot." ... Q. "Now
you knew these impending charges were serious?" A. "Yes." Q. "Did you believe
them to be true?" A. "I cannot tell you whether I did or not, because, as I say,
1522
§§ 1177-1282] EULE IN" THE QUEEN'S CASE. § 1260
I do not recollect." ... Q. "First of all, you knew then that you had procured
and paid for a number of letters?" A. "Yes." Q. "Which, if genuine, you have
already told me would gravely implicate the parties from whom they were supposed to
come?" A. "Yes, gravely implicate." Q. "You regard that as a serious charge?"
A. "Yes." "Q. "Did you believe that charge to be true or false?" A. " I believed
that to he true." . . . Q. "Now I will read you this passage: — 'P. S. I need hardly
add that did I consider the parties really guilty of the things charged against them, I should
not dream of suggesting that your Grace should take part in an effort to shield them.
I only wish to impress on your Grace that the evidence is apparently convincing, and
would probably be sufficient to secure conviction if submitted to an English jury.' What
have you to say to that ? " A. " I say nothing, except that I am sure I could not have
had the letters in my mind when I said that, because I do not think the letters convey
a sufficiently serious charge to warrant my writing that letter." Q. " But as far as you
have yet told us the letters constituted the only part of the charge with which you had
anything to do? " A. "Yes, that is why I say that I must have had something else in
my mind which I cannot recollect. I must have had some other charges in my mind."
Q. " Can you suggest anything that you had in your mind except the letters ? " A. " No,
I cannot." . . . [On the next day, when Pigott resumed his examination] : Q. "Then
I may take it that since last night you have removed from your mind — I think your
bosom was the expression you used — that this communication of yours [to the Arch-
bishop] referred to some fearful charge, something not yet mentioned ? " A. " No, I told
you so last night, but I am sui-e that it is not so. I will tell you my reason." Q. " You
need not trouble yourself." A. " I may say at once that the statements I made to the Arch-
bishop were entirely unfounded." ... Q. "Then in the letters I have up to this time
read — or some of them — you deliberately sat down and wrote lies ? " A. " Well, they
were exaggerations; I would not say they were lies." Q. "Was the exaggeration such
as that it left no truth ? " A. "I think very little."
1888, Parnell Commission's Proceedings, 31st day. Times' Rep. pt. 8, p. 212 ; the
" Times " had charged the Irish Land League and its leaders with complicity in crime
and agrarian outrage ; many of the witnesses to prove its case were suspected of offering
testimony fabricated by themselves in the hope of finding a willing ear and obtaining a
pleasant sojourn in London and good pay for their time ; one Thomas O'Connor, who
had presented on the stand a highly-colored story (which was claimed by the Land League
to be an entire fabrication) was thus cross-examined by Sir Charles Russell : Q. " When
you came over here to give your evidence did you expect any money ? " A. " I expected
to be sent back." Q. " Did you expect aay money? " A. " Well, no; I expected that I
should be sent back and paid for the time I should spend here." Q. " Anything more? "
A. "Nothing more." Q. "You did not expect to make money out of The Times f"
A. "No." Q. " Merely your bare expenses ? " A. "Yes." Q. " You volunteered to
come over solely in the interests of morality, truth, and justice ? " A. " Yes, and in
the hope of banishing the hell on earth that exists round my own place in Ireland."
Q. "You had no thought of gain for yourself at all?" A. "I do not care about the
gain." Q. " You had no thought of gain for yourself at all ? " A. " No." Q. " Were
you asked by anyone to make statements incriminating any of the popular leaders in
Ireland?" A. "No." . . . Q. "Were you asked to tell queer things ? " A. "Well,
he told me to tell everything I knew. " . . . Q. " Were you afraid that because you
could not tell him the queer things he wanted you would not get the money which you
expected?" A. "I was not afraid of that, because I did not expect any money."
Q. "Take this letter in your hand. Do not read it, but look at the signature. Have
you any doubt as to its being your signature?" A. "No, I have not." Sir C.
Russell: "I will read this letter : — ' Dear Pat, — I was here in London since yesterday
morning. I was in Dublin two days. I got myself summoned for The Times. I thought
I could make a few pounds in the transaction, but I find I cannot unless I would swear
queer things. I am afraid they will send me to gaol, or at least give me nottung to carry
1523
§ 1260
DOCUMENTARY ORIGmALS.
[Chap. XXXIX
me home. I would not bother with it at all, but my health was not very good when I
was at home, and I thought I would take a short voyage and see a doctor at their expense.
But, instead of it doing me any good, it has made me worse a little. I will be examined
to-morrow, Tuesday, the 4th.' " ^
§ 1261. Details of the Rule. (1) The rule of showing and reading ceases, of
course, to apply when the document is shown to be lost or otherwise unavail-
able ; for then production is dispensed with, according to the principles
already noticed.^
(2) When the cross-examiner, in asking as to a prior inconsistent state-
ment, asks merely whether the witness made such-and-such a statement, he
must, if objection is made, specify either a statement made orally or a state-
ment made in writing, so that the present rule can be enforced in the latter
case.^
(3) The witness may be shown only the signature or some other part for
the purpose of obtaining an admission of the execution of the document ; but,
for the purpose of proving the contents, the document's production at the
proper time is necessary, and without it the questions as to contents cannot
be asked. ^
(4) The proper time for reading the letter to judge and jury is, in the
absence of special considerations, the time when the cross-examiner comes to
put in his own case.*
' The following are also illustrative : 1875,
Tilton V. Beecher, N. Y., " Official " Report, III,
6-S; III, 6-8, 40-41, 109-113 (Mr. Beecher's
cross-examiuation, by Mr. FuUerton) ; II, 174
(cross-exarainatiQa of Mrs. S. C. D. Putnam, by
Mr. FuUerton).
1 1820, Abbott, C. J., in the answer to the
first question, in The Queen's Case, ante, § 1259 ;
Starkie, Evidence, I, 202 ; Phillipps, Evidence,
I, 298; 1840, Da vies v. Davies, 9 C. & P. 252
(an office-copy, admitted to be correct, of an affi-
davit in another Court ; croSs-examination on it
allowed).
2 1820, The Queen's Case, 2 B. & B. 292
(Abbott, C. J.: "A witness is often asked
whether there is an agreement for a certain
price for a certani article ... or other matter
of that kind, being a contract ; and when a
question of that kind has been asked at nisi
prius, the ordinary course has been for the
counsel on the other side ... to ask the wit-
ness whether the agreement referred to in the
question originally proposed by the counsel on
the other side was or was not in writing ; and
if the witness answers that it was in writing,
then the enquiry is stopped, because the writing
itself must be produced ").
3 1820, The Queen's Case, 2 B. & B. 286;
1848, Olapp V. Wilson, 5 Den. 285, 287; 1903,
Treutham v. Bluthenthal, 118 Ga. 530, 45 S. E.
421.
* 1820, The Queen's Case, 2 B. & B. 289
(Abbott, C. J.: "According to the ordinary
rule of proceeding in the courts below, the
letter is to be read as the evidence of the
cioss-examiaing counsel as part of his evidence
1524
in his turn after he shall have opened his case ;
that is the ordinary course. But if the counsel
who is cross-examining suggests to the Court
that he wishes to have the "letter read imme-
diately in order that be may, after the con-
tents of that letter shall have been made known
to the Court, found certain questions upon the
contents of that letter, to be propounded to the
witness, which could not well or effectually be
done without reading the letter itself, that be-
comes an excepted case in the courts below, and
for the convenient administration of justice the
letter is permitted to be read at the suggestion
of the counsel," but as still his evidence) ; 1901,
St. Louis I. M. & S. R. Co. v. Eaisst, 68 Ark.
587, 61 S. W. 374 (a writing may be read when
cross-examining to lay the foundation, " if cross-
examination upon the contents is desired and
suggested to the Court") ; 1902, Hennessy v.
Ins. Co., 74 Conn. 699, 52 Atl. 490 (whether it
is to be put iu evidence daring the cross-exam-
ination is in the trial Court's discretion) ; 1898,
Peyton v. Morgan Park, 172 111. 102, 49 N. E.
1003 (to be offered after cross-examination in
the cross-examiner's case) ; 1872, Haines v. Ins.
Co., 52 N. H. 470, 471 ("such matters as the
identity of the paper and of the witness, and
the genuineness of the signature, are not usu-
ally iu dispute; and it would be well to wait
and see what objections will be made to the
i.itroductiou of the deposition when it is offered
at the proper time"; but "no absolute rule can
be laid down, because it is a matter of fact and
reasonableness"); 1872, Romertze v. Bank, 49
N. Y. 579 (document need not be offered till
examiner's own case is put in ; unless perhaps
§§ 1177-1282] RULE IK THE QUEEN'S CASE. § 1262'
§ 1262. Same : Rule as applied to Prior Statements in Depositions. When
a witness' testimony is taken down at a preliminary hearing for committal
by a magistrate, or is taken by a commissioner in the shape of a deposition,
it seems to be generally conceded that the written report is preferred testi-
mony to his statements, i. e. it must be produced or accounted for before
testimony can be given of the witness' oral words {post, §§ 1326-1332). This
is not the same as holding that the magistrate's report is the witness' testi-
mony (instead of the witness' oral words), — though this may be so where
the witness has signed the report, and it is always taken to be so in the case
of a deposition (in the strict sense) taken by a commissioner. However,
waiving these objections (dealt with post, § 1349, with reference to the theory
of such examinations), and assuming that the magistrate's written report or
the commissioner's certified deposition is a statement in writing by the
examinee or deponent, the rule in The Queen's Case obviously applies ; i. e.
a witness upon the stand cannot be asked as to any statements made in a
deposition or at a magistrate's examination without producing and showing '
the document. This is simple enough as to a deposition, strictly so called.
But as to a magistrate's report of an examination, the rule requiring it to be
used as preferred proof- of the witness' answers (post, § 1326) does not make
it a preferred proof where it has omitted to record the answer in question, or
at least where the answer or remark was not made during the course of the
examination and thus was not required to be recorded by the magistrate
(post, § 1326). There may thus have been oral answers of which the mag-
istrate's report cannot be expected to furnish the written proof. Hence
it would not be proper to cross-examine a witness about these statements,
until it has been made to appear that the question refers to statements which
could not have been in the magistrate's report or which could have been,
but in fact are not, there found.
Such was, in England, the principle and effect of the Eesolutions of the
Judges in 1837.^ The question had not attracted attention before that time,^
because by the Prisoners' Counsel Act,^ in 1836, a counsel's aid for the first
time became available, for the purposes of cross-examination, to defendants
accused of felony, and so such attempts to discredit a prosecuting witness by
professional methods had just begun to be common. The bindingness of this
rule was for a time disputed.* The chief reason for the stand taken by the
in the Court's discretion, in order to allow ex- specifically negative any reference to the dfipo-
plauations by the witness). Compare § 1884. sition's statements) ; this last rule being estab-
For the question whether the whole of the lished, as a logical consequence of the first two,
wriliiig must be shown to the opponent's counsel by R. v. Holden, 8 C. & P. 609 (1838) and B. v.
on request, see post, §§ 1861, 2125. Shellard, 9 id. 279 (1840) ; but E. v. Moir, 4 Cox
1 1837, c/rca February, Resolutionsof Judges, Cr. 279(1850) is confca to this Rule 3.
7 C. & P. 676 ((1) The witness cannot be asked * The following case dealt with a slightly dif-
whether he made a statement in his deposition ferent point : 1832, Ridley v. Gyde, 1 M. & Rob.
before the magistrate, without reading the depo- 197, Tindal, C. J. (where the witness was asked
sition as a part of his evidence ; (2) So for ques- whether he had mentioned a fact when examined
tionsasto other statements before the magistrate ; before the bankruptcy commissioners ; rule held
the deposition must first be read to see whether not applicable),
it contains them ; (3) So for questions as to any ' St. 6 & 7 Wm. IV, c. 114.
self-contradictions whatever; the question must * In R. v. Coveuey, 8 C. & P. 31 (January,
1525
§ 1262 DOCUMENTARY ORIGINALS. [Chap. XXXIX
Bar against them was the supposed absence of a right in the prosecuting
counsel to address the jury in closing, if the defence had introduced no evi-
dence of its own ; for thus, if the defence could by mere cross-examination
bring out these self-contradictions, the prosecution would have no right to
make a closing address ; while if the defence were obliged to put in the
deposition as a part of its own case, the prosecution would gain the right to
make a closing address. But it seems to have been settled soon afterwards
that the prosecution had such a right in any case, though it had customarily
not been exercised ; ^ and thus the chief reason for opposition ceasing to
exist, the Eesolutions received thereafter a general enforcement.^ Attempts
to evade them by indirection were discountenanced. Thus, the rule was
held to be violated where the witness was shown his deposition and asked to
say, after reading it silently, whether he persevered in his statement just
made on the stand ; for in this way there is given to the jury an implica-
tion as to the contents of the deposition.'^ But merely asking the witness
to take the deposition and refresh his memory therefrom, and then to say
whether after refreshing it he perseveres in his statement just made on
the stand, does not necessarily convey such an implication, and would be
allowable.^
It should, however, be noted that, irrespective of the rule in The Queen's
Case {i. e. in jurisdictions where it is not in force), this use of a deposition to
refresh memory raises three other and independent questions, (1) whether
its use on cross-examination is dishonest under certain circumstances, as
just mentioned (note 7, supra ; and ante, § 764), (2) whether it may properly,
be done, the deposition not being a contemporary memorandum («jife, § 761),
and (3) whether when done on re-direct examination it violates the rule
against impeaching one's own witness {ante, § 904).
1837), Patteson, J., had allowed the question deposition and then say whether he adhered
forbidden by Rule 1 to be aslced and the af- to his answer, rejected ; the deposition must be
firmative answer to be talcen as proof. " put in in the regular way " ; following R. v.
"> April, 1837, R. v. Edwards, 8 C. & P. 26, Ford). The following ruling rests on the same
29, Coleridge, J. A compromise was in this principle: 1849, R. v, Matthews, 4 Cox Cr. 93
case suggested, by which the judge should (the witness not being able to read, counsel
follow, deposition in hand, the witness' testi- offered to have a court-officer read his deposi-
mony on the stand, if he cho'^e to do so in his tion aloud to him, so as to refresh his memorv
discretion. But even here, " if the judge should and see whether he adhered to it ; excluded,
refer to the depositions, and so introduce new because it would make the officer a witness to
facts in evidence," by questioning the witness contradict). But even since the statutory abo-
about discrepancies, Coleridge, J., was not sure lition of the rnle in The Queen's Case, U. v.
that the right to reply was lost. Ford may still in another aspect be correct ;
' 1837, R. «._ Edwards, 8 0. & P. 26, per i.e. thoujrh the witness' testimony to the f.ict
Coleridge and Littledale, JJ. ; at p. 31 is given of contradicting himself would be proper with-
a list of unreported rulings in which other ont reading the document itself, yet if the
judges affirmed the Resolutions. But they witness said that he did " persevere in his state-
seem subsequently to have been confined to ment," the implication tliat he had formerly
strict limits: 1861, R. v. Maloney, 9 Cox Cr. stated the contrary might be in fact unjust, —
26 (on cross-examination » question allowed the result of tlie counsel's trick. On this point,
as to what the witness had said before the see ante, § 764.
, coroner, without producing the deposition, be- ' 18.17, R. n. Edwards, 8 C. & P. 26, 31 ;
cause the judges' rules applied only to examina- 1850, R. v. Barnet, 4 Cox Cr. 269.
tions before a magistrate). For the American rulings on the subject of
' 1850, R. V. Newton, 15 L. T. 26; 1851, R. the above section, see the notes to the next
V. Ford, 5 Cox Cr. 184; 1863, R. v. Brewer, 9 id. section.
409 (proposition to have the witness peruse the
1526
§§ 1177-1282]
RULE IX THE QUEEN'S CASE.
§ 1263
§ 1263. Same : Jurisdictions recognizing the Rule In The Queen's Case.
In England, the rule laid down in The Queen's Case, so far as it applied
to attempts to discredit a witness by cross-examining him to prior incon-
sistent or biassed or corrupt utterances, was unanimously condemned by the
Bar ; and, when the general revision of common-law procedure took place in
1854, a statute was passed which (a) expressly abolished the really vicious
and totally indefensible part of the rule, namely, the requirement that the
document must he shown to the witness before asking him about it, and (S)
by implication abolished the requirement of then producing and reading the
document, and thus allowed any document's terms to be proved by testimony
of the writer on cross-examination without subsequent production ; though in
case of the witness' denial, production would of course be necessary ; and
in any case whatever the statute authorizes a judicial discretion to order pro-
duction.i The judicial construction of the statute seems to accept these
consequences fully .^
In Canada, similar corrective statutes have been enacted ; though they
seem to have been by some Courts construed strictly.^
In the United States, the rule seems not to have existed before 1820 ;
wherever it was advanced, it seems to have come directly by adoption of the
ruling in The Queen's Case. The statutory abolition of the rule in England
1 1854, St. 17 & 18 Vict. c. 125, § 24 ("A
witness may be cross-examined as to previous
statements made by him in writing or reduced
into writing, relative to the subject-matter of
the cause, without such writing being shown
to liim ; bnt if it is intended to contradict such
witness by the writing, his attention must, be-
fore such contradictory proof can be given, be
called to those parts of the writing which are to
be used for the purpose of so contradicting him ;
provided always that it shall be competent for
the judge, at any time during the trial, to re-
quire the production of the writing for his
Inspection, and he may thereupon make such
use of it for the purposes of the trial as he
shall think fit") ; extended in 1865 to criminal
cases : 28 & 29 Vict. c. 18, § .5 ; 1874, Day, Com-
mon Law Procedure Acts, 4th ed., 277" (" The
effect is this : the witness in the first instance
may be asked whether he has made such and
such a statement in writing without its being
shown to him. If he denies that he has made
it, the opposite party cannot put in the state-
ment without first calling his attention to it
(showing it, or at least reading it to him)
and to any parts of it relied upon as a
contradiction").
It does not appear from the statute whether
" calling his attention " means " showing the
writing." But this is immaterial; the impor-
tant thing is that the witness' readiness to lie or
inability to remember can be tested by asking
him before showing the writing to him.
'^ 1858, Sladden v. Sergeant, 1 F. & F. 322,
Willes, J. (cross-examination on an affidavit
made bv the witness ; prodijction not neces-
sary) ; 1858, Ireland v. Stiff, ib. 340 (Willes, J. :
" Strictly, the course is, to ask first if he received
1527
a letter of a certain date ; then if he received a
letter commencing, etc. It will come to the same
thing \i. e., as here, where counsel asked if he
had received a letter in the following terms] ;
it is only for the purpose of identification ") ;
1859, Farrow v. Blomfield, ib. 653 (Pollock,
C. B,, allowing a question to the plaintiff on
cross-examination as to the contents of a letter
inconsistent with his testimony : " If a question
arises as to the contents of a written instrument,
and you can get a witness to come and swear
that he heard the plaintiff say it contained such
and such expressions, that is good evidence of
the contents of the instrument without produc-
ing it. And if the plaintiff is himself in the
box, you may ask him as to tlie contents of the
document, and his answer will be as good evi-
dence as any previous statement. . . . The
judge might say that the document ought to
be produced; I should do so myself in some
cases ") ; see also North Austr. T. Co. i'. Golds-
borough, 1893, 2 Ch. 381, 386.
3 3om. Crim. Code 1892, § 700 (like Eng.
St. 1854, c. 125, § 24; adding that a purporting
deposition, duly produced, shall be presumed to
have been signed by the witness) ; B. C. Rev.
St. 1897, c. 71-, § 30 (like Eng. St, 1854, c. 125,
§ 24) ; N. Br. Consol. St. 1877, c. 46, § 21 (like
Eng. St. 1854, c. 125, § 24) ; 1859, Lawton v.
Chance, 4 All. 411 (trial Court's discretion to
order production under the statute, here exer-
cised); 1862, Campbell v. Gilbert, 5 id. 420, 426
(trial Court's discretion exercised to require
production of the original document being in
England, not an office copy) ; 1880, R. v. Tower,
20 N. Br. 168, 190, 198 (cross-examination under
the statute, without offering the paper in evi-
dence, not allowed where it did not appear that
§ 1263
DOCUMENTAEY ORIGINALS.
[Chap. XXXIX
did not become known in this country except in a few quarters.* The
singular spectacle was presented of many Courts in this country adopting a
supposed rule which had been repudiated in its jurisdiction of origin a gener-
ation before. The question has not been passed upon in all of our jurisdic-
tions ; but the rule has been adopted in most courts where the objection has
been raised, although there has been little attempt to develop its details,
particularly as regards the use of questions upon depositions.* The unfortu-
ths witness himself hail written, signed or seen
the paper) ; Newf. Consol. St. 1892, c. 57, § 19
(like Bug. St. 18.i4, c. 125, § 24); N. Sc. Rev.
St. 1900, c. 133, § 44 (like Eng. St. 1854, c. 125,
§ 24) ; Ont. Rev. St. 1897, c. 73, § 17 (like Eng.
St. 1854, c. 125, § 24) ; P. E. I. St. 1889, t. 9,
§ 17 (like Eng. St. 1854, c. 125, § 24).
* Probably because the learned author of
Greenleaf on Evidence died in 1853, the year
before the statute, and The Queen's Case re-
mained elaborately treated as law in his text,
while the statute was only noticed in an obscure
corner of the editorial notes.
° For depositions, the cases cited ante, §§ 761 ,
764, 904, must be compared: Alabama: 188.3,
Wills V. State, 74 Ala. 24 (writing must be
shown ami read; here, testimony before a com-
mittini; magistrate); 1884, Phcenix Ins. Co. o.
Moog, 78 id. 310 (same for deposition; here
read aloud to witness, who could not read) ;
1833, Floyd v. State, 82 id. 22 (same rule ; testi-
mony before a committing magistrate) ; 1887,
Guuter w. State, 83 id. 106 (same, preliminary
examination of witness before justice of the
peace); 1895, Sanders v. State, 105 id. 4, 16 So.
935 (cross-examination to former testimony re-
duced to writing, allowed witliout production) ;
1903, United States F. & G. Co.'w. Dampskibak-
tieselskabet Habil, — id. — , 35 So. 344 (witness'
memory of a contract tested without showing
him the paper) ; Akiski: C. C. P. 1900. § 670
(like Or. Annot. C. 1892, § 841); Arkansas:
Stats. 1894, § 2960 (if the statement "is in
writing, it must be shown to the witness, and
he allowed to explain It"); California: C. C. P.
1872, § 2052 (impeachment by prior self-contra-
diction ; " if the statements be in writing, they
must be shown to the witness before any ques-
tion is put to him concerning them ") ; § 20.54
(quoted post, § 1831 ; it perhaps affects this
point) ; 1872, People v. Donovan, 43 Cal. 162,
165, seinhle (writing must be shown to the wit-
ness) ; 1872, Peo|ile a. Devine, 44 id. 452 (former
testimony at inquest; after questions as to time
and place, held proper to put in the deposition,
though not shown or read to the witness ; pres-
ent point not considered) ; 1875, Leonard v.
Kingsley, .50 id, 628, 630 (letters; "he should
have called the attention of the witness to
them") ; 1882, People v. Hong Ah Duck, 61 id.
387, 394 (allowing contradiction by coroner's
deposition; question not raised) ; 1 887, People y.
Ching Hing Chang, 74 id. 393, 16 Pae. 201
(testimony reduced to writing in foreign lan-
guage must be translated); 1893, People v.
Kruger, 100 id. 523, 35 Pac. 88 (question as to
former statements, allowed, without reading over
the writing) ; 1895, People v. Dillwood, — id.
— , 39 Pac. 438 (testimony before magistrate ;
1528
must be read, and shown to him if required) ;
1898, People v. Lambert, 120 id. 170, 52 Pac.
307 (the reading over of a deposition, if asked for
by the witness as a substitute for showing,
should not be allowed to cover the whole deposi-
tion, but only the self-contradictory parts) ;
Florida: 1893, Simmons v. State, 32 Fla. 387,
391, 13 So. 896 (former testimony, reduced to
writing by magistrate, must be shown to wit-
ness) ; Georgia : Code 1895, § 5292 (" if in writ-
ing, the same should be shown to him, or read in
his hearing, if in existence " ) ; 1853, Stamper
V. Griffin, 12 Ga. 454 (letter; the writing must
be shown to the witness) ; but notice that since
in this State the ruling for asking does not
apply to prior sworn statements (ante, § 1035),
the present rule also does not apply to them :
1900, Tavlor v. State, 110 id. 150, 35 S. E. 161
(questions as to former testimony officially re-
ported, allowed in order to test sincerity or
memory, without proiluction of report ; but
before proof of the former statements by the
report, its contents should be " made known to
her " and the report produced) ; Hawaii : Civil
Laws 1897, § 1423 (like Eng. St. 1854, with "or
prosecution " after the words " of the cause") ;
Idaho: Rev. St. 1887, § 6083 (like Cal. C. 0. P.,
§ 2052) ; Illinois: 1893, Atchison, T. & S. F. R.
Co. V. Feehan, 149 111. 202, 214, 36 N. E. 1036
(witness apparently not shown a deposition, and
the deposition then excluded because the wit-
ness' admission on cross^e.xaminatiou sufficed) ;
1897, Swift V. Madden, 165 id. 41, 45 N. E. 979
(contents of deposition read to the witness ; no
ruling on the present point) ; 1898, Peyton v.
IWorgan Park, 172 id. 102, 49 N. E. 1003 (sim-
ilar) ; 1902, Momence Stone Co. v. Groves, 197
id. 88, 64 N. E. 335 (inquiry as to the contents
of a written statement by the witness, held im-
proper) ; Iowa: 1861, Morrison v. Myers, 11 la.
539 (letter; showing necessary); 1868, Cal-
lanan v. Shaw, 24 id. 454 (" the better, and
probably the correct practice " is to show it) ;
1871, State v. Collins, 32 id. 41 ("his attention
must first be drawn to the time, etc.; " nothing
said about showing the document) ; 1879, Peck
V. Parchen, 52 id. 46, 52, 2 N. W. 597 (docu-
ment must be shown) ; 1883, Glenn v. Gleason,
61 id. 28, 33, 15 N. W. 659 (the whole of a
letter must be shown, and not merely parts
required to be read ; asking about the contents
of a letter admitted genuine, held improper) ;
Kmtucky: C. C. P. 1895, § 598 (" if it [a differ-
ent .statement] be in writing, it must be shown
to the witness, with opportunity to explain it ") ;
§ 604 (writing shown and proved must be read
to jury before witness' testimony closed) ; 1901,
Hendrickson v. Com., — Ky. — , 64 S. W. 954
(rule in The Queen's Case applied) ; Louisiana :
§§ 1177-1282]
EULE IN THE QUEEN'S CASE.
1263
nate rule should once and for all be disposed of by a statutory measure
similar to tlie English provision ; although correct common-law principles
would amply suffice to prevent its establishment.
1889, State v. Callegari, 41 La. An. 580, 7 So.
130 (testimony at a preliminary examination,
reduceJ to writing ; showing required) ; 1902,
State V. Cain, 106 La. 708,' 31 So. 300 (rule
repudiated, no authority cited) ; Massachusetts :
1875, Com. V. Kelley, 112 Mass. 4.^2 (a con-
stable, sought to be discredited by the contents
of his oath made in getting a search-warrant;
writing must be shown) ; Michigan : 1868, Light-
foot V. People, 16 Mich. .'ilS (deposition; "If a
party desires to cross-examine the witness on the
suliject of his former statements, he should read
the entire deposition in evidence before doing
so. If he does not desire to cross-examine on
that topic, it is sufficient to read it at any
time"); 1881, DeMav u. Roberts, 46 id. 160,
163, 9 N. W. 146 (rule applied to an affidavit) ;
1883, Toohey v. Plummer,69 id. 345,349, 37 N. W.
297 (minutes of former testimony by a stenog-
rapher, not called, read over in part to the
witness ; reading of the whole not required, the
supposed contradiction not being in truth in
writing; " the minutes are not lilte a deposition
read to the witness and then signed by him ") ;
1892, Maxted v. Fowler, 94 id. 106, lU, 53
N. W. 921 (showing required) ; 1892, Austrian v.
Springer, ib. 343, 353, 54 N. W. 50 (questions
on cross-examination about contents of a letter,
allowed without producing) ; Minnesota : 1893,
O'Kiley v. Clampet, 53 Minn. 539, 55 N. W.
740 (must be not only shown but introduced in
evidence) ; Mississippi : 1876, Scarborough v.
Smith, 52 Miss. 517, 522 (mere questioning, ap-
parently enough ; nothing said about showing
the paper ; here, a memorandum of former tes-
timony) ; 1879, Cavanah v. State, 56 id. 299, 307
(written report of former testimony must be
shown to the witness) ; 1878, Mitchell c. Savings
Inst., 56 id. 444, 448 (letter; the witness' "at-
tention should have been directed to it") ; 1891,
Story V. State, 68 id. 609, 630, 10 So. 47 (cross-
examination as to a telegram sent by the wit-
ness ; the telegram required to be shown to
him); Missowi: 1865, Gregory v. Cheatham,
36 Mo. 161 (letter; showing required); 1875,
Prewitt «. Martin, 59 id. 334 (showing required) ;
1877, Spoonemor^ v. Cables, 66 id. 579 (affidavit
containmg a contradiction, shown to the wit-
ness) ; 1883, State «. Grant, 79 id. 113, 132 (af-
fidavit to contradict one testifying by deposition ;
must be produced and asked about) ; 1883, State
V. Stein, ib. 330 (letter required to be shown) ;
1885, State r. Mattliews, 88 id. 121, 124 (after
the witness' admission of genuineness, the whole
writing must be read, and not merely particular
pas.sages be read and inquired about) ; 1889,
State V. Young, 99 id. 666, 681, 12 S. W. 879
(defendant's statement before coroner reduced
to writiiig ; attention must be called) ; Mon-
tana: C. C. P. 1895, § 3380 (like Cal. C. C. P.
§ 2052) ; 1896, State v. O'Brien, 18 Mont. 1,
43 Pac. 1091 (statute applied) ; Nebraska: 1879,
Cropsey v. Averill, 8 Nebr. 151, 157 (deposition
must first be proved and read before cross-exam-
ination) ; 1901, Omaha L. & T. Co. v. Douglas
Co., 62 id. 1, 86 N. W. 936 (rule applied) ; New
Hampshire: 1872, Haines v. Ins. Co., 52 N. H.
467, 470 (cross-examination upon a deposition
for the purpose of impeaching or showing any
inconsistency is not allowable ; asking questions
to prove the signature or to identify the deposi-
tion is a matter within the discretion of the
trial Court as to the time of doing so, and " no
absolute rule can be laid down ") ; New Mexico :
Comp. L. 1897, § 3023 (like Eng. St. 1854, with-
out the proviso) ; New York : 1 832, Bellinger v.
People, 8 Wend. 599 (a former examination be-
fore a magistrate, to show self-contradiction ;
the document must be shown or read) ; 1848,
Clapp r. Wilson, 5 Den. 286, 2?8 (need not call at-
tention to a particular passage, but must merely
show the whole paper and get an admission of
genuineness ; but a deposition need not be shown
to a witness to call his attention, " being a sworn
statement in writing") ; 1862, Newcomb v. Gris-
wold, 24 N. Y. 301 (a former affidavit, whether
as cross-examiner's own evidence or as a con-
tradictory statement does not appear ; document
must be shown or read) ; 1872, Romertze v.
Bank, 49 id. 578 (a deposition de bene, used to
show self-contradiction ; must be shown or read ;
but particular passages need not be called atten-
tion to); 1872, Gaffney v. People, 50 id. 423
(must first be shown) ; Oregon: C. C. P. 1892
§ 841 (like Cal. C. C. P. § 2052) ; 1868, State v.
Taylor, 3 Or. 10 (former testimony; the writ-
ing must be shown, even though the words
asked about are in fact not in it) ; 1 896, State w.
Steeves, 29 id. 85, 43 Pac. 947 (statute applied) ;
Pennsylvania: St. 1887, Pub. L. 158, § 3, P. &
L. Dig. Witnesses, § 6 (former testimony to
contradict a witness in criminal cases " may be
orally proved ") ; Tennessee : 1872, Titus r. State,
7 Baxt. 132, 136 (deposition taken by magistrate
need not be shown to witness before offering,
because it is not the witness' writing ; but a
letter said to be the witness' must be shown) ;
United States: 1884, The Charles Morgan, 115
U. S. 69, 77, 5 Sup. 1172 (must be shown to
witness, " except under special circumstances " ;
"all that the law requires is that the memory of
the witness shall be so refreshed by the necessary
inquiries as to enable him to explain, if he can
and desires to do so " ; the trial Court to deter-
mine this) ; 1890, Chicago M. & S. P. R. Co. v.
Artery, 137 id. 520, 11 Sup. 129 (The Queen's
Case mentioned with approval, but on another
point); 1892, Toplitz «. Heddeu, 146 id. 2.54,
13 Sup. 70 (the plaintiff was asked whether in
a former suit he had made a certain claim ; an
objection that the record should be produced
was overruled ; " if he wished to appeal to the
prior record, to refresh his recollections he
could call for it and do so ; but the evidence as
offered was competent, irrespectively of the rec-
ord ") ; Vermont: 1 862, Randolph «.' Woodstock,
35 Vt. 295 (letter need not be shown ; " the
plaintiffs were bound to first ask the witness
before they would be allowed to contradict him,
even by producing the letter. The plaintiffs
1529
§ 1264 DOCUMENTARY ORIGINALS. [Chap. XXXIX
D. Rules about Secondary Evidence of Contents (Copies, Degrees
OF Evidence, etc.).
§ 1264. In General. When the rule under consideration is satisfied, by
accounting for the non-production of the document itself, the function and
effect of the rule ends. The rule itself says nothing about the ways of
evidencing a document not produced. The rule requires that as a preferred
source of proof, the document itself be produced for autoptic inspection, and
recognizes certain exemptions from production. Any rules that may obtain
as to the mode of proving an unproduced document, by testimony of one sort
or another, rest upon some other principle of evidei\ce. Nevertheless, for the
sake of practical convenience, such of them as can adequately be examined
apart from those other general principles will b.e here considered, with refer-
ences to the general principles under which they properly belong.
1. Rules Preferring One Kind of Testimony above Another (Degrees of
Evidence, etc.).
§ 1265. General Principle. Under another head (§§ 1285-1339) it will be
seen that a group of .rules is recognized in our law by which one kind of
witness to a certain fact is preferred above another; i. e. the former witness'
testimony must be obtained if it is available, and the latter's may be used
only when the former's appears to be unavailable. By one variety of such
rules — less common — the one witness' testimony is absolutely preferred, i. e.
it is the only kind that can be used, and the other will not be received even
though the former is unavailable. The rules of this sort do not form a
systematic group or a single body of doctrine ; each of them owes its existence
to the peculiar circumstances of some given situation making a particular
kind of testimony highly desirable. It is feasible, without doing violence to
the exposition of those rules in their proper place, to consider here such ol
them as deal with evidence of the contents of documents by preferring one
kind of testimony to contents above another. The general notion underlying
the group of rules as a whole is elsewhere considered (post, § 1285) ; but in
the present place will be examined all the rules and precedents specifically
dealing with testimony to the contents of a document.
These rules of preference deal with four general questions : 1. When is
testimony by copy preferred to testimony by oral recollection ? 2. When is
testimony by official copy preferred to testimony by private copy ? 3. When
must of course take the witness' statements as sertion, unless very liberally construed, is likely
to what he wrote, unless they were prepared to to have the absurd and perverse effect of nul-
contradict him by producing the letter, and lifying the only value of the statute, by requir-
could not prove its contents by witnesses witli- ing precisely what the original statute was
out showing its loss") ; 1898, Billings w. Ins. Co., intended to abolish; the framers of this legis-
70 Vt. 477, 41 Atl. 516 (rule repudiated) ; Vir- lation seem hardly to have appreciated tlie real
ginia: St. 1899-1900, c. 117, § 3 (like F>ng. St. problem at issue; Wisconsin: 1880, Kalk i'.
i 8.'J4, c. 125, except that after the words " con- Fielding, 50 Wis. 339, 342 (letter received by op-
trailicting him," the words are added " and the ponent; cross-examination to contents, allowed
said writing shall be shown to him " ; this in- without production ; Taylor, J., diss.}.
1530
§§ 1177-1282] KINDS OF COPIES. § 1266
is one kind of recollection-testimony preferred to another ? 4. When is tes-
timony by direct copy preferred to testimony by copy of a copy ?
§ 1266. Nature of Copy-Testimony, as distinguished from Recolleotioil-
Testimony. "What is a copy, as distinguished from other testimony to con-
tents ? This is a fundamental inquiry ; for a correct notion of the significance
of a copy will enable us to form a just idea of the reasons for making rules
of preference. A person who is qualified to testify to the contents of a docu-
ment may present his knowledge in one of two ways : (1) He may, having at
some time perused the document, summon up his recollection on the stand,
and repeat the document's terms as furnished by that recollection. (2) Or,
having in the same way perused the document, (a) he may have written down
its words at the time of perusal, in successive stages, by writing the few
words that he can carry precisely in his mind for the moment, and so on until
the whole is transcribed ; (b) or (as merely a variety of this method) he
may have taken an alleged copy already made by another or by himself, and
compared the original and this other, word for word or clause for clause ; the
only difference between these two sub-varieties (a and h) being that in the
latter he has not had to carry any words in his mind during the time of
transcribing, and has thus gained a greater probability of accuracy by reducing
the necessary time of recollection to a minimum. Now between these two
modes, (1) and (2), there is obviously a great difference in trustworthiness. By
the former mode, the memory has had to be trusted for a considerable length
of time, — perhaps for a day, perhaps for ten years. This recollection of the
precise words of the document is sure to fade and to become less accurate
than at the first moment after the perusal of each word or clause. The
increasing degree of untrustworthiness (assuming the honesty and intelligence
to be alike in the same witness for all kinds of testimony) will depend partly
on the length of the document, partly on the circumstances likely to empha-
size the words in his memory, and partly on the space of time that has
elapsed between his perusal and his testimony on the stand. Thus his
recollection-testimony may be highly trustworthy, and yet may be worthless.
But his copy-testimony eliminates all these elements of untrustworthiness ;
the length of the document, the emphasis of words, the lapse of time, are all
immaterial, for he transcribed or examined the copy word for word at such
a time that there was practically no demand made upon his powers of
memory ; the transcription then permanently made in writing (and adopted
on the stand as a record of past knowledge ; ante, §§ 734, 739) preserves the
words without any of the risk of change or disappearance that attends the
operations of memory ; moreover, the fact of a change, if it has occurred, is
made known by the appearance of the writing.
Such being the difference in trustworthiness between copy-testimony and
recollection-testimony, does the law establish any rule of preference for the
former over the latter ? It is common to refer to this question by contrasting
" oral evidence," or " parol evidence," with a copy ; but the former terms are
so loose and ambiguous (^post, § 2400) that their further employment for
VOL. II. — 34 1531
§ 1266 DOCUMENTARY ORIGINALS. [Chap. XXXIX
purposes of discussion would be unpardonable. The proper contrast is
between copy-testimony and testimony by present recollection.
§ 1267. Is a Written Copy the Exclusive Form of Testimony ? Proof
of a Lost Record, Will, etc., by Recollection. Is this relative uu trustworthi-
ness of recollection-testimony so great that such testimony will never be
received to prove the contents of a document, even where copy-testimony
is not available ? In other words, is the latter absolutely preferred ( post,
§ 1345) to the exclusion of the former? Such a doctrine has never been
suggested for ordinary writings. But it has often been urged as proper
in application to judicial records, deeds, and wills. It is to be noted that
the question is whether recollection-testimony is to be used, or else no
evidence at all ; for, by hypothesis, the original cannot be had, and copy-
testimony is not available. Thus the question to be considered is whether
the dangers of inaccuracy that may attend the reception of recollection-
testimony are sufficiently great to over-balance the dangers attending the
entire failure of evidence of the contents of lost or destroyed records and
the like. On this point, it is clear that the answer must be in the
negative ; the considerations are well expounded in the following passage :
1799, Haywood, J., note to Haggelt v. — — , 2 Hayw. 24.3 : " When there is no record
or deed, nor any copy, parol evidence will in general relate the fact truly, and is as much
better than no evidence at all as records and deeds are superior to itself. It ought to be
received upon the same principle as they are, not because there is absolute certainty either
in the one or in the other (for a record or deed may be altered, corrupted, substituted, or
the like), but because, in choosing probabilities, it is wise to take the best that ofEere.
To require the production of a record or deed, when there is undoubted proof of its
destruction, is to require an impossibility, and lex neminem cogit ad impossibilia. To say
his right shall be lost with the record or deed that proves, though destroyed by invincible
calamity, is to inflict punishment for the acts of Heaven, and actus Dei nemini fncit
injuriam. It were far better to abolish the institution of deeds and records altogether
than to admit the position under consideration as a consequence of them. ... If it be
argued that the party should take and preserve a copy of the record amongst his other
evidences, and then the loss of the record would not prejudice him, and that it is his own
fault if he neglects to do so and the record becomes extinct, the answer is, [Firstly] that
in contemplation of law he is not bound to take a copy till his occasions require it, for the
law itself has undertaken to keep and preserve the record for him, to the end he may have
a copy when he wants it, and therefore the not taking or not keeping a copy cannot be
imputed to his negligence ; Secondly, if he take a copy, that as well as the record may be
lost ; yet according to the controverted position, he caunot be let into parol evidence."
1850, Scott, J., in Davies v. Pettit, 11 Ark. 349, 352 : " It is known that not only the
existence and loss but also the contents of lost bonds, bills, notes, and other memorials of
contracts and various other written instruments, from time immemorial have been allowed
to be proven by parol evidence; and that many of these relate to the most important trans-
actions among men, and that they are in general executed in privacy and comparatively
but few of them are ever submitted to the public gaze. And yet the inquest of centuries
has failed to present this rule to the Legislature as a public grievance in promoting per-
jury, and for this reason to demand its eradication from our judicial regulations. If,
then, the morals, and safety of society have received no serious injury from its operation
in a wide field of temptation, where the suborned are for the most part unchecked by the
public eye, can it be possible that the admission of parol evidence of the loss and the
effect of judgments at law, which are not produced in private like these private instru-
1532
§§ 1177-1282] KINDS OF COPIES. § 1267
ments of evidence, but are the result of the united action of the judge, jury, officers of
Court, parties, their attorneys and witnesses, all under the eye of the bystanders, can be
productive of the great evils apprehended from this source ? On the contrary, is it not
certain that of all the cases of the proof, by parol, of the contents of lost instruments of
evidence, that of lost judgments, from the circumstances to which we have alluded, is
most secured against the crime of perjury ? — But it is supposed that a disastrous blow
would be stricken against the sanctity of records, and in this that public policy would be
greatly outraged. If records, while tlfey existed, were allowed to be contradicted or
established by parol, this would not fail to be the result. But how this is to result from
the establishment of their tenor and effect when destroyed is not altogether clear. Surely
judicial records are not so sacred that their very ashes must not be disturbed, and that, to
minister to their quiet, the most important rights of men must be sacrificed, with Pagan
superstition, to their manes. Such a doctrine would have better befitted the days of the
old barons of England, when chirography was so much esteemed that it was an indulgence
for crime, than in our own times ; and it is by no means certain that it obtained even in
those days. Shall personal liberty be sacrificed at this altar, and a man be twice put in
jeopardy of life or limb because hisplea of former acquittal cannot be established by the
ashes of a conflagrated record ? Shall a man be twice punished for the same offence
because the record of his former conviction, under which he was punished, from its
destruction, cannot be produced to protect him from a second prosecution ? Or shall the
convicted forger be delivered from the penitentiary and set at large upon society because
the same incendiary flame that destroyed the record of his conviction at the same time
consumed the material evidence of his guilt ? But these and many other startling conse-
quences are by no means the only result of this supposed doctrine ; for, let it be distinctly
understood that the destruction of judicial records is the end of the public and private
rights depending upon them while they exist, and at once a high premium for vice and
crime is held out by the law, under the influence of which just fears might be apprehended
for the safety of judicial records. . . . The law would be placed in the singular predicament
of openly permitting the rude hand of crime to seize upon her highest muniments of truth
and right, apply the incendiary torch, and hold the blazing sacrifice in the very face of
justice. We cannot think that such a scene can be enacted under the auspices of the
common law, whose oracles have ever claimed for it a capacity to afford a remedy for
every wrong. On the contrary, we think that its I'ecuperative energies are fully equal to
the work of setting up, by the legitimate operation of its harmonious rules, every land-
mark of truth and right that may be at any time prostrated, either by the hand of crime,
the inevitable accidents incident to men, or by the onward wear of time."
Such has been the rule unanimously accepted by the Courts. Since the
time (ante, § 1177) when the rule of production has been conceded to be
subject to certain excuses and exemptions, the proof of unproduced docu-
ments has been allowed to be made by recollection -testimony (in the absence
of such copy-testimony as is otherwise required, under the rules shortly to
be noticed). The proposed doctrine, that such recollection-testimony should
be absolutely excluded, has been repudiated for judicial and official records,^
^ In some of the following cases the thing 174; Conn.: 1839, Davidson v. Murphy, 13
admitted was a copy, but the rule is laid down Conn. 212, 219; Del.: 1852, Polite v. Jefferson,
in general terms for "parol "or "oral "evidence: 5 Harringt. 388 ; Fla.: 189.5, Edwards i). Rives,
Eiig.: 1774, Kingston v. Horner, H. Cowper 35 Fla. 89, 17 So. 416 (must be clearly proved) ;
102, 109 (Lord Mansfield, C. J. : " If a founda- III. : 1 864, Anlger v. Smith, 34 111. 534 (lost dep-
tion can be laid that a record or a deed existed osition; recollection-evidence admitted); 1897,
and was afterwards lost, it may be supplied by Gage v. Eddy, 167 id. 102, 47 N. E. 200 (deposi-
the next best evidence to be had ") ; Cat. : 1859, tion lost after filing ; offeror may prove contents,
Ames V. Hoy, 12 Cal. 11, 20 (judgment) ; 1863, without re-taking the deposition) ; Ind.: 1829,
Warfield's Will, 22 id. 51,64 (probate petition); Jackson v. CuUum, 2 Blackf. 228 (judgment,
Colo.: 1878, Hittson w. Davenport, 4 Colo. 169, etc.); 1853, Schwartz v. Osthimer, 4 Ind. 109
1533
§ 1267
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
although it was for a time adopted in one jurisdiction ;2 here distinguish the
impropriety of proving an oral judicial act {post, § 2450) from the propriety
of proving a written judicial record by " oral " evidence. It has been repu-
diated for deeds ; ^ note that this permission- to prove a written conveyance
(plea); 1881, Johnson v. State, 80 id. 220, 221
(summons) ; 1886, McCuUough v. Davis, 108 id.
292, 296, 9 N. E. 276 (title-records ; " much lati-
tude is allowable"); 1886, McFadden v. Fritz,
110 id. 1, 5, 10 N. E. 120 (writ); la.: 1859,
Higgins V. Reed, 8 la. 298; 1864, Davis v.
Strohm, 17 id. 421, 424, 427 (bond); Ki/.: 1840,
Hawkins v. Craig, 1 B. Monr. 27 (writ) ; La. :
1841, Childress v. AUin, 17 La. 37; 1893,
Landry v. Landry, 4.'> La. An. 1113, 13 So 672
(completing a partly burnt deed by oral evi-
dence) ; Jfe. .• 1843, Gore v. ElweU, 9 Shepl.
442; 1848, Wing v. Abbott, 15 id. 367, 373;
Mass : 1813, Stockbridge i). W. Stockbridge, 12
Mass. 399, 402 (act of incorporation of town) ;
18.S6, Sturtevaut v. Robinson, 18 Pick. 175, 179
(admitting a copy of a scire facias writ, loss
being shown ; " it would be as correct to say
til u the loss of an original deed should affect
the grantee's title to land " as to exclude such
proof) ; 18.39, Pruden v. Allen, 23 id. 184, 187
(admitting a copy of a license of sale shown to
be lost); 18t-2, Savles v. Briggs, 4 Mete. 421,
423; 1842, Eaton "w. Hall. 5 id, 287, 291 (an
order of Court directing reference to arbitrators ;
a copy admitted, on proof of loss; "the con-
sideration that a particular document constitutes
the basis of the jurisdiction of a Court does not
essentially vary the rule in regard to secondary
evidence,"though it may require more care and
vigilance in its application"); 1851, Com. v.
Roark, 8 Cush. 210, 212 (complaint and war-
rant) ; 1854, Tillotson v. Warner, 3 Gray, 574,
577 ; Mich. : 1857, People w. Dennis, 4 Mich. 609,
617 (indictment); 1874, Millar v. Babcook, 29
id. 526, 527 (attachment) ; 1878, Drake u. Kin-
sell, 38 id. 232, 234; 1886, People v. Coffman,
59 id. 1, 6, 26 N. W. 207; 1886, Blimchard v.
DeGraff, 60 id. 107, 111, 26 N. W. 849; 1888,
Cillev u. Van Patten, 68 id. 80, 83, 35 N. W.
831;"j//)!)i.: 1866, Winona v. Huff, 11 Minn.
119, 128 ; Miss.: 1850, Scott u. Loomis, 13 Sm.
& M 635, 641 (justice's docket) ; 186S, Martin
V. Williams, 42 Miss. 210, 218, semhie ; Mo.:
1827, Ravenscroft v. Giboney, 2 Mo. 1 (" though
the record may not have been verv ancient ") ;
1871, Foulk V. Colburn, 48 id. 225, 230; 1873,
Compton 0. Arnold, 54 id. 147 ; 1884, State v.
Schooley, 84 id. 447, 454 (tax-books) ; 1889,
Crane v. Daraeron, 98 id. 567, 570, 12 S. W.
251; N. .7. .• 1849, Browning v. Flanagin, 22
N. J. L. 567, 571 (record) ; N. C. : 1813, Stuart
V. Fitzgerald, 2 Murph. 255 (capias) ; 1 835, Kello
V. Maget, 1 Dev. & B. 414, 424; 1878, Rollins
V. Henry, 78 N. C. 342, 347 ; 1887, Mobley v.
Watts, 98 id. 284, 287, 3 S. E. 677 ; Pa.: 1782,
Morris v. Vanderen, 1 Dall, 64, 65 (lost survey) ;
1793, Todd v. Ockerraan, 1 Yeates 295, 297
(same); 1821, Wolverton v. Com., 7 S. & R.
273, 276 ; 1847, Farmers' Bank v. Gilson, 6 Pa.
51, 57; Tenn.: 1816, Read v. Staton, 3 Havw.
159 (judgment); U.S.: 1806, U. S. r. Lambell,
1 Or. C. C. 312 (warrant) ; Vt.: 1852, Speai v.
Tilson, 24 Vt. 420, 423 (grand list of assess-
ment) ; 1855, Brown v. Kichmond, 27 id. 583
(attachment); Fa.. 1832, Newcomb r. Drum-
mond, 4 Leigh 57, 60; Wis.: 1880, Wambold
V. Vick., 50 Wis. 456, 458, 7 N. W. 438, semble.
2 1799, Hargett v. , 2 Hayw. 76 (Moo e,
J. : " It is better to suffer a private mischief than
a public inconvenience " ; copy admissible, but
oral evidence of a lost record's contents ex-
cluded) ; 1839, Smith i;. Dudley, 2 Ark. 60, 65
(lost or destroyed record may not be proved by
parol when it " constitutes the sole foundation
of the proceeding or cause of action"; but
only by " authenticated or sworn copy ") ; 1842,
Williams v. Brummel, 4 id. 129, 137 (judicial
record, not by parol, but only by certified copy) ;
1842, Fowler v. More, ib. 570, 573 (lost record
may be proved by copy ; at least " such portions
as process and the like ") ; 1843, Bailey v. Palmer,
5 id. 208 (same) ; 1847, Alexander v. Foreman,
7 id. 252 (same) ; 1843, Wallace v. Collins, 5 id.
41, 48 (execution ; if no objection is taken, any
evidence admissible) ; 1849, Phelan v. Bonham, 9
id. 388, 393 (same for a notice) ; 1850, Davies v.
Pettit, 11 id. 349, 351 (lost or destroyed judicial
record may be established by parol ; see quota-
tion supra, overruling Smith v. Dudley, and the
intervening cases) ; 1860, Gracie v. Morris, 22
id. 415, 418 (preceding case ignored; but copy
of lost record allowed) ; 1870, Mason v. Bull,
26 id. 164, 167 (Davies v. Pettit approved) ;
1878, Gates v. Bennett, 33 id. 47.5, 489 (same);
1883, Miller w. State, 40 Ark. 488, 495 (indict-
ment destroyed, and record not restored ; sec-
ondary evidence allowed; Eakin, J., diss.) ; 1886,
Hallum V. Dickinson, 47 id. 120, 125, 14 S. W.
477 (Davies v. Pettit approved).
' This result was (as might be inferred from
the historical development noted ante, § 1177)
at first not accepted in England; but by the
end of the 1700s it was fully established : 171 1,
Seymour's Case, 10 Mod. 8 ("The Court seemed
of opinion that in case a deed was lost by some
inevitable accident, that there it might be proved
by a copy ; but in case there was no copy, the
contents of it could not be proved from the
memory of those that knew the deed ; and
though it were hard for a man that had no
copy, to lose the benefit of his deed, yet the
inconveniences of admitting that sort of evi-
dence would be greater " ; but otherwise if the
defendant had the deed, " for that in this case
the danger of allowing this sort of evidence was
none at all ; for if the defendant was wronged
by the parol evidence, it was in his power to set
all right by producing the deed ") ; 1721, Dalston
V. Coatsworth, 1 P. Wms. 731 (burnt deed sup-
plied by parol testimony) ; 1768, Blackstonc,
Commentaries, III, 368 (an " attested copy may
be produced or parol evidence be given of its
contents") ; and the citations in note 1, supra.
In the United Slates the propriety of such
evidence is everywhere conceded : 1859, Shorter
1534
§§ 1177-1282]
KINDS OF COPIES.
§1267
by " parol " evidence of its contents is a different thing from proving an oral
or " parol " conveyance forbidden by the statute of frauds or by the " parol
evidence '' rule (post, § 2437);* distinguish also the requirement as to the
completeness of detail with which the deed's contents must be proved (post,
§ 2105), and the degree of positiveness which the proof must reach (post,
'§ 2498). A missing negotiable instrument may also be proved by recollec-
tion-evidence.^ In the case of a missing will, it is equally well settled that
recollection-testimony is admissible;^ but here certain other requirements
apply which must be distinguished, namely, the number of witnesses by
which the contents or the execution must be proved (^post, § 2052), the
degree of positiveness or clearness which the evidence must attain in order
to suffice (post, § 2498), the completeness of the details of the contents as
V. Sheppard, 33 Ala. 648, 653; Cal. C. C. P.
1872, § 1937 (of private writings, "by a copy,
or by a recital of its contents in some authentic
document, or by the recollection of a witness ") ;
1794, Kelley v. Eiggs, 2 Root 126, 128; 1857,
St. Peter's Church v. Beach, 26 Conn. 355, 359,
365; 1887, Bush v. Stanlev, 122 111. 406, 416,
13 N. E. 249 ; 1847, Chisholin v. Hen, 7 B. Monr.
408, 414 (but for the mere loss of a will, as dis-
tinguished from frauduleut suppression, circum-
stantial evidence does not suffice) ; 1 885, Lane
V. Cameron, 37 La. An. 250; 1901, Willett v.
Andrews, 106 La. 319, 30 So. 883; 1889, Wake-
field !'. Day, 41 Minn. 344, 347, 43 N. W. 71 ;
1827, Colby v. Kenniston, 4 N. H. 262, 265 ; 1844,
New Boston v. Donbarton, 15 id. 201, 205 (char-
ter) ; 1844, Downing v. Pickering, ib. 344 ; 1850,
Forsaith v. Clark, 21 id. 409, 417 (proprietary
charter) ; 1852, Neally v. Greenough, 25 id. 325,
330 (" Generally the party who is driven by the
Joss or destruction of a paper ... to resort to
secondary evidence is confined to no particular
species of evidence ; it may be more or less direct,
or merely circumstantial"); 1831, Jackson v.
Living.ston, 7 Wend. 136, 140; 1861, Miltimore
V. Miltimore, 40 Pa. 151, 154 (abstract); 1798,
Frost V. Brown, 2 Bay 135, 138 (" It is very clear
that the existence and loss of a deed may be
presumed by a jury from circumstances ") ; 1895,
Reusena r.'Lawson, 91 Va. 226, 21 S. E. 347
(lost deed established by stateinents against in-
terest in a chancery answer).
* 1861, Jenkins, J., in Roe & McDowell v.
Doe & Irwin, 32 Ga. 39, 51 ("It is not evi-
dence of a conveyance by parol. It is parol
evidence of a conveyance by deed, the loss or
destruction of which has been proven "). Here
compare the New York cases {ante, § 1257) ex-
cluding certain admissions of parties as amount-
ing to an oral conveyance.
■• 1809, Jones v. Failes, 5 Mass. 101 (promis-
sory notes) ; see the citations ante, § 1197.
Tlie following ruling is peculiar: 1869,
Austine v. People, 51 IlL 236, 239 (copy of a
confession, made two years afterward from
recollection alone, excluded).
6 En<!.: 1824, Davis v. Davis, 2 Add. Eccl.
223, 224, 228; 1864, Wharram v. Wharram, 3
Sw. & Tr. 301 (pointing out the dangers of such
evidence, but concluding that " at any rate " it
" ought to be of a very cogent character ") j 1 858,
Brown v. Brown, 8 E. & B. 876 (Lord Camp-
bell, C. J. : " It was the common case of a lostj
instrument ; and parol evidence of the contents
of a lost instrument may be received as much
when it is a will as if it were anv other") ; 1876,
Sugden v. St. Leonards, L. E."l P. D. 154, 238
(Jessel, M. E. : " Can we admit, as a matter of
course, secondary evidence in proof of a will ?
I should have thought that there could be but
one answer to that question, and had it not been
for the doubt thrown out by a very eminent
judge in the case of Wharram v. Wharram, I
should have thought it impossible to argue the
question. . . . The whole theory of secondary
evidence depends upon this, that the primary
evidence is lost, and that it is against justice
that the accident of the loss should deprive a
man of the rights to which he would otherwise
be entitled. I am at a loss to discover any
reason whatever for distinguishing between the
loss of a will and the loss of a deed"); 1890,
Harris v. Knight, L. R. 15 id. 170, 179; U. S.:
1884, Jacques v. Horton, 76 Ala. 238, 245 ; 1886,
Skeggs u. Horton, 82 id. 353, 2 So. 110; 1882,
Ander.son v. Irwin, 101 111. 411, 415 ; Me. Pub.
St. 1883, c. 64, § 7 (a lost will may be proved by
a copy and subscribing witnesses' testimony, or
by "any other evidence competent"); 1825,
Clark V. Wright, 3 Pick. 66, 68; 1844, Davis v.
Sigourney, SMetc. 487; Minn. Gen. St. 1894,
§ 4442 (a will lost or destroyed or out of the
State and unproducible is provable by " parol
or other evidence ") ; 1834, Graham v. O'Fallon,
3 Mo 507; 4 id. 601, 607; 1843, Kearns v.
Kearns, 4 HarriuRt. 83 ; 1 863, Wyckoff v.
Wyckoff, 16 N. J. Eq. 401, 405 ; 1898, Codding-
ton V. Jenner, 57 N. J. Eq. 528, 41 Atl. 874 ;
1805, Jackson «. Lucett, 2 Cai. 363, 367; 1863,
Harris <^. Harris, 26 N. Y. 433 ; 1878, Foster's
Appeal, 87 Pa. 67, 75 (" Its loss or accidental
destruction differs not from the loss or destruc-
tion of any other solemn instrument, such as a
deed, note or bond, or a record") ; 1795, Potts w.
Cogdell, 1 De Sauss. 454 ; 1795, Legare v. Ashe,
1 Bay 464; 1818, Reeves v. Reeves, 2 Mill
Const. 334; Tenn. Code, 1896, § 3911 (if the
original is lost or mislaid, the trial may proceed
upon a supposed copy) ; 1897, McNeely v. Pear-
son, — Tenn. — ,42S. W. 165; 1842, Minkler
V. Minkler, 14 Vt. 125, 127; 1868, Dudley v
Wardner, 41 id. 59.
1535
§ 1267 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
thus evidenced (^jpost, § 2106), the admissibility of circumstantial evidence,
including the testator's belief as to the contents {ante, § 271), the admissi-
bility of the testator's declarations Qpo^t, § 1734), and the conditional pref-
erence for a copy, if available, over recollection-testimony (^post, § 1268).
§ 1268. Is a Written Copy conditionally preferred to Recollection? Ad-
missibility of Recollection before showing Copy unavailable. Whether a
copy must be offered, if available, i. e. whether a copy is conditionally pre-
ferred to recollection-testimony, is a question that is difficult to answer, both
upon principle and upon precedent. There are strong reasons on both
sides of the question, and there has been little consistency of rulings even
within single jurisdictions. The following passages expound the reasons for
requiring such a preference :
1839, Anon., in 4 Monthly Law Magazine, 265, 267 : " The argument relied on to show
that a distinction exists among the various species of secondary evidence is a supposed
equitable extension of the principle which postpones all secondary evidence until the
non-production of the primary is accounted for. . . . Does it not follow, [is the claim on
this behalf,] as a necessary corollary from this proposition, that if certain species of sec-
ondary evidence be manifestly better and more likely to contain a true account of what
was in the original than others, a party ought not to be allowed t6 resort to the latter
until his incapacity to produce the former be demonstrated ? . . . [The argument is
that] a copy, the correctness of which is sworn to by a witness who has compared it with
the original is far more to be relied on than the mere memory of that witness as to the
contents of the latter, — both on account of the comparative imperfection of all verbal
testimony, when compared with written, and also that in such a case the utmost which
any witness under ordinary circumstances can be expected to remember of the contents
of a writing in which he is not interested is that he shall have a general recollection of
its leading features, but that he is not likely to remember conditions, limitations, or par-
ticular words used in it, which might however have a most material effect in altering or
qualifying its meaning; so that . . . [only when counterpart, copy, and abstract fail] he
may then, but not till then, be allowed to resort to the dangerous and unsatisfactory
proof deduced from the memory of a witness."
1849, Nisbet, J., in Doe v. Biggers, 6 Ga. 188, 199 : " Now the highest degree of second-
ary evidence is not required. The rule upon that point is this : When there is no ground
for legal presumption that better secondary evidence exists, any proof is received which
is not inadmissible by other rules of law, unless the objecting party can show that better
evidence was previously known to the other and might have been produced ; thus sub-
jecting him by positive proof to the same imputation of fraud which the law itself pre-
sumes when piimary evidence is withheld."
1856, Goldthwaite, C. J., in Harvey v. Thorpe, 28 Ala. 250, 262: "[The American
weight of authority requires that] the best kind of that character of evidence which ap-
pears to be in the power of the party to produce must be offered. We confess that the
American rule appears to us more reasonable than the English; and we see great pro-
priety, if there was an examined copy of an instrument in the possession of a party, in
refusing to allow him to prove it by the uncertain memory of witnesses. A copy of a
letter, taken by a copying press, would unquestionably be better evidence of the original
than the recollection of its contents by a witness ; and the same reasons which would
require the production of the original if in the control of the party, would operate in favor
of the production of the facsimile or of the examined copy. But in all these cases the
strength of the proposition consists in the fact that there is secondary evidence in its
nature and character better than that which the party offers, and that it is in his power
to produce it."
1536
§§ 1177-1282] KINDS OF COPIES. § 1268
The arguments against making any such distinction are thus set forth :
1840, Ahinger, L. C. B., in Doe v. Ross, 7 M. & W. 102 (the question was whether an
attested copy of a deed was to be preferred to the testimony of one who had read it) :
" Upon examination of the cases, and upon principle, we think there are no degrees of
secondary evidence. The rule is that if you cannot produce the original, you may give
parol evidence of its contents. If indeed the party giving such parol evidence appears to
have better secondary evidence in his power which he does not produce, that is a fact to
go to tiie jury, from which they might sometimes presume that the evidence kept back
would be adverse to the party withholding it. But the law makes no distinction between
one class of secondary evidence and another; " Alderson, B. : " The objection [to second-
ary evidence] must arise from the nature of the evidence itself. If you produce a copy,
which shows that ther« was an original, or if you give parol evidence of the contents of a
deed, the evidence itself discloses the existence of the deed. But reverse the case; the
existence of an original does not show the existence of any copy ; nor does parol evidence
of the contents of a deed show the existence of anything except the deed itself. If one
species of secondary evidence is to exclude another, a party tendering parol evidence of a
deed must account for all the secondary evidence that has existed. He may know of
nothing but the original, and the other side at the trial may defeat him by showing a
copy, the existence of which he had no means of ascertaining. Fifty copies may be in
existence unknown to him, and he would be bound to account for them all."
1842, Professor Simon Greenleaf, Evidence, § 84, note. : " On the other hand, it is said
that this argument for the extension of the rule confounds all distinction between the
weight of evidence and its legal admissibility ; that the rule is founded upon the nature
of the evidence offered, and not upon its strength or weakness; and that, to carry it to
the length of establishing degrees in secondary evidence, as fixed rules of law, would often
tend to the subversion of justice, and always be productive of inconvenience. If, for ex-
ample, proof of the existence of an abstract of a deed will exclude oral evidence of its con-
tents, this proof may be withheld by the adverse party until the moment of trial, and the
other side be defeated, or the cause be greatly delayed ; and the same mischief may be
repeated, through all the different degrees of the evidence. It is therefore insisted, that
the rule of exclusion ought to be restricted to such evidence only as, upon its face, dis-
closes the existence of better proof ; and that where the evidence is not of this nature, it
is to be received, notwithstanding it may be shown from other sources that the party
might have offered that which was more satisfactory ; leaving the weight of the evidence
to be judged of by the Jury, under all the circumstances of the case.^ . . . The American
doctrine, as deduced from various authorities, seems to be this; that if, from the nature
of the case itself, . . . there is no ground for legal presumption that better secondary
evidence exists, any proof is received, which is not inadmissible by other rules of law ; un-
less the objecting party can show that better evidence was previously known to the other,
and might have-been produced ; thus subjecting him, by positive proof, to the same im-
putation of fraud, which the law itself presumes, when primary evidence is withheld."
1849, Lipscomb, J., in Lewis v. San Antonio, 7 Tex. 288, 315 : " It is believed that the
rule sanctioned by Greenleaf is more philosophical and harmonizes better with the prog-
ress of the more enlightened jurisprudence of the age on the subject of the admissibility
of evidence, — that is, to curtail and limit the objections to the competency and let the
evidence in, to go to the jury to judge of its weight or credibility. In every case where
a party kept back a more satisfactory kind of evidence that was in his power to have
produced and within his knowledge, it would operate strongly against such as he had
offered, of less certainty, with the jury. This would prevent embarrassing discussions
that would often arise suddenly, at the moment when testimony would be offered,
whether it was most satisfactory and carried the most weight of any that could be offered.
* See these arguments more fully set forth supra, where the author of the article concludes
in the article in 4 Monthly Law Magazine 265, strongly against a rule of preference.
1537
§ 1268 DOCUMENTAEY OEIGINALS. [Chap. XXXIX
The only question should be whether it waa admissible and legal; the party offering it
would take the risk of its being satisfactory to prove the fact for which it was offered to
the jury.''
It will be seen that the conflict of arguments is due on the one hand to the
conceded desirability of employing a copy as better than mere recollection,
and, on the other hand, to the hardship of exacting this invariably of a pro-
ponent who may be put to excessive trouble to obtain such a copy. A sim-
ple solution, giving effect to some e.^tent to both of these considerations, is
the following : Let the proponent of recollection-testimony be required, be-
fore using it, to show that he has not within his control a copy ; if he has
not, then he may offer recollection-testimony ; and the opponent may then,
if there is any real dispute on his part as to the contents, put in a copy if
one is available. This rule procures the benefit of a copy without putting
an undue burden upon the proponent ; for if a copy is available at all, else-
where than in the proponent's own control, it is fitter that the opponent
should have the risk and the trouble of procuring it. The rule then, briefly,
would be : The party offering to prove the contents of an unavailable original
document, must offer a copy, if he has one in:" his control,'i.n preference to
recoUection'-^testimony. -
Coming ta the rule of law as judicially enforced, it may first be noted that
a fallacious definiteness has often been given to the question by referring (as
in the passage above quoted) to the " English " rule as distinguished from
the " American " rule. There is no such distinction. The English prece-
dents are divided, though the ruling in Doe v. Ross (quoted above) finally
established a rule for one class of cases ; and the American jurisdictions are
also divided. Moreover, any such generality as "there are no degrees of
secondary evidence " ^ is of no, value, because it is not correct "; for there
are at least two or three settled distinctions in that category (as the prece-
dents in the ensuing sections indicate) ; sucli general remarks cannot safely
be trusted and must be construed merely with reference to the distinction
then before the Court.
As to the state of the precedents, it is clear that the orthodox English
doctrine did for deeds prefer a copy before recollection-testimony ; ^ and the
same preference has been recognized in proving various kinds of documents, in
2 1833, Brown v. Woodman, 6 C. & P. 206 Will, Lofft 362 ("If you cannot prove a deed
(Parke, J. : "There are no degrees in secondary by producing it, you may produce the counter-
evidence," except perhaps for duplicate origi- part ; if you can't produce the counterpart, you
nals) ; 1858, Fitzgerald v. Williams, 24 6a. may produce a copy, even if you cannot prove it
343, 345 (there are no degrees) ; 1869, Good- to be a true copy ; if a copy caunot be produced,
rich V. Weston, 102 Mass. 362, semUe (in gen- you may go into parol evidence of the deed") ;
eral, "there are no degrees of legal distinc- 1740, Villiers «. Villiers, 2 Atk. 71 (Lord Hard-
tion"); 1875, Elliott v. Van Buren, 33 Mich, wicke, L. C, places counterpart, copy, and
49, 52 ("There are no degrees l)f, evidence, ex- parol evidence in this order) ; 1744, Omichund
cept where some document [must be produced v. Barker, 1 id. 21, 49 (Lord Hardwieke, L. C,
in the original]"); 1873, Cornett v. Williams, places a copy before " witnesses who have heard
20 Wall. 226, 246 ("This Court has not yet the deed; and yet it is a thing the law abhors
gone the length of the English adjudications, to admit the memory of man for evidence"),
which hold without qualification, that there are For the rule requiring first a counterpart as equiva-
no degrees in secondary evidence "). lent to the original, see ante, « 1233.
3 1773, Lord Mansfield, C. J., in Ludlam's
1538
§§ 1177-1282]
KINDS OF COPIES.
§ 1268
rulings both English and American, although it does not usually appear
clearly whether the preference is conditional on the copy being anywhere
available or merely on its being in the proponent's control, nor whether it is
for the opponent to show that such a copy is available or for the proponent
to show that it is not available.* On the other hand, it is clear that by the
ruling in Doe v. Koss the English rule has been changed, and no preference
is now accorded to a copy, for proving deeds and other private documents ;
and this result has been accepted in not more than a minority of the Ameri-
can Courts that have ruled upon the question ; ^ although it is to be remem-
bered (as appears in § 1269, posf) that such rulings must be understood as
applying usually to private documents only, and that any general principle
enunciated in them cannot ordinarily be construed to mean more than that.
In determining what is a copy, for the purposes of the present rule, an
alleged copy submitted to the witness and verified by him as correct, though
not made nor previously seen by him, would perhaps be treated as a copy ; ^
* England: 1791, Breton v. Cope, Peake 30
(Bank of England stock-books; written copy-
required) ; 1810, Rhiud o. Wilkinson, 2 Taunt.
237 (license to trade during war ; the register
of licenses at the Secretary of State's office held
a preferable source to the captain's recollection) ;
United States: 1849, Doe v. Biggers, 6 Ga. 188,
199 (copy preferred conditionidly ; see quota-
tion sitjjra ; circumstantial proof of contents
here allowed) ; 1867, Williams v. Waters, 36 id.
4.^4, 458 (certified copies of contract, preferred
to oral testimony) ; 1900, Shedden v. Heard,
110 id. 461, 35 S. E. 707 (use of a copy of in-
surance application excludes recollection-testi-
mony of contents); 111. Rev. St. 1874, c. 116,
§ 28 (where an original conveyance, etc., is
shown lost or out of the party's power, and the
record is destroyed, " the Court shall receive all
such evidence as may have a bearing on the
case to establish the execution or contents " of
the conveyance, record, etc.) ; 1899, Harrell v.
Enterprise Sav. Bank, 183 111. 538, 56 N. E. 63
(after fruitless search for a record of a lost
deed, memoranda, etc., showing the contents
are admissible) ; 1858, Madison I. & P. R. Co.
V. Whitesel, 11 Ind. 55, 57 (certified copy of
corporation-records, preferred to oral testimony) ;
1861, Indianapolis & C. R. Co. o. Jewett, 16 id.
273 (sworn copy of corporation-records not pre-
ferred to oral testimony, where the secretary
had refused to produce the original or to furnish
a copy); 1875, Day v. Backus, 31 Mich. 241,
245 (whether fresh copies of a letter are prefer-
able to oral testimony, not decided) ; 1900,
Phillips V. XJ. S. Benevolent Soc'y, 125 id. 186,
84 N. W. 57 (insurance application filed in
Canada; sworn or certified copy preferred;
Montgomery, C. J., and Hooker, JT, diss.) ; 1832,
Smith 0. Axtell, 1 N. J. L. 494, 498 (copy of
written agreement preferred to oral testimony) ;
1862, Stevenson v. Hoy, 43 Pa. 191, 193, 196
(facsimile press copy preferred to copy from
recollection); 1822, U. S. v. Britton, 2 Mason
464, 468 (examined copy, " if any such exist and .
can be found," preferred to oral testimony ; here
applied to a forged document) ; 1823, Riggs v.
1539
Tayloe, 9 Wheat. 483, 486 (" [He] may read a
counterpart, or if there is no counterpart, an
examined copy, or if tliere should not be an
examined copy, he may give parol evidence of
its contents"); 1882, Stebbins v. Duncan, 108
U. S. 32, 43, 2 Sup. 313 (following Riggs o.
Tayloe, as to order of preference, and admitting
oral testimony of contents of a deed by one
who verified a certified copy not made by him-
self) ; 1899, Lloyd v. Supreme Lodge, 38 C" C. A.
654, 98 Eed. 66 (certified copy of lodge by-law,
preferred to oral testimony) ; 1885, Cleveland w.
Bnrnham, 64 Wis. 347, 357, 359, 2ft N. W. 407
(bank-books ; certain stock-certificates held bet-
ter evidence than oral testimony).
" England: 1807, Kensington t). Inglis, 8 East
273, 279, 289 (a memorandum book of trading
licenses, kept by a governor's secretary, not
preferred to his oral statement of a license's
contents) ; 1808, Fisher v. Samuda. 1 Camp.
193 (letter; copy not preferred to recollection) ;
1834, Doe i-. Cole, 6 C. & P. 359 (tablet on a
church; oral description allowed); 1840, Doe
V. Ross, 7 M. & W. 102 (as between an attested
copy of a deed and the testimony of one who
had read the deed, no preference was given to
the former; see quotation s«;ora) ; 1884, Jaques
V. Horton, 76 Ala. 238, 246 (copy of a lost will,
not preferable to oral testimony); 1858, Car-
penter V. Dame, 10 Ind. 125, 132 (sworn copy of
a bond, not preferred to oral testimony by rec-
ollection ; no degrees " as a general rule " in
secondary evidence ; Coman v. State, 4 Blackf.
241, repudiated) ; 1873, Eslow v. Mitchell, 26
Mich. 500, 502 (copy not preferred to oral testiT
mony, for private writings not existing in
counterpart) ; 1893, Minneapolis T. Co. v.
Nimocks, 53 Minn. 381, 55 N. W. 546 (sup-
posed copy of notice not preferred to sender s
recollection); 1805, Jackson r. Lucett, 2 Cai.
363, 367 (deed is provable orally or by copy) ;
1805, Tower v. Wilson, 3 id. 174 (notice served ;
no copy having been kept, it was proved orally).
6 1833, R. V. Fursey, 6 C. & P. 81, 84 (a
notice, Parke, J. : " The usual way in such
cases is to give a copy to the witness and ask if
§ 1268
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
though obviously it is not, since the witness is dependent upon his memory
for verifying the correctness of the alleged copy, and his testimony is open
to nearly all the possibilities of error to which ordinary recollection-testimony
is open.
§ 1269. Same : (a) Copy preferred for proving Public Records. It has
been noted (ante, § 1268) that the particular hardship of a rule of preference
for copies lay in the circumstance that it imposed upon the proponent the
burden of searching in possible places and of proving that a copy was not to
be had. Such a hardship disappears when the original is kept in a known
public office, whence copies may be obtained by any one upon request. This
is apparently the reason for a distinction well settled in all jurisdictions,
namely, that judicial records, if in existence, must be proved by copy in
preference to recollection-testimony.' It would seem that upon the same
principle a copy would be preferred for proving a document of any sort in
public official custody ; this is the result accepted in a majority of jurisdic-
tions ;^ though the contrary view finds some support.^ Certainly some limi-
it is a copy of what he saw. I do not say that
parol evidence is inadmissible"); see other
cases post, § 1280, where the admissibility of
such a copy is considered.
^ See the cases cited ante, § 1215, and § 1244,
where this is a-ssumed, and also the citations in
§ 1267, and the following cases: 1810, Brush w.
Taggart, 7 John. 19 (sworn copy of a writ of
certiorari preferred to oral evidence); 1815,
Foster u. Trull, 12 id. 456 (same, for a writ of
arrest); 1836, Otto v. Trump, 115 Pa. 425, 429,
8 Atl. 786 (contents of a foreign record ; a copy
preferred to parol).
But when a copy has been offered, the op-
ponent may well be allowed to dispute its
correctness by recollection-testimony without
endeavoring to obtain another copy; 1866,
Estes V. Farnham, 1 1 Minn. 423, 437 (lost plead-
ings ; incorrectness of a supposed copy may be
shown by parol, where better evidence is not
disclo-ed by the case). Contra, 1900, Shedden
V. Heard, Ga., seinhle, cited ante, § 1268.
2 Ala.: 1881, Miller v. Boykin, 70 AU. 469,
478 (postmaster's register of mail-arrivals, etc. ;
not allowed to testify from memoranda of the
register ; a sworn or a certified copy indispen-
sable) ; Ark. : 1896, Jones v. Melindy, 62 Ark.
203, 203, 36 S. \V. 22 (register of mortgages
testifying to contents of record not lost, ex-
cluded; proof must be by examined or certified
copy) ; 1898, Redd v. State, 65 id. 475, 47 S. W.
119 (certified copy of pardon, if available, pre-
ferred to oral testimony of it ); Cat. : C. C. P.
1 872, § 1 855 (for public or recorded documents,
a copy is necessary ; for documents lost or in
the opponent's possession, " either a copy or
oral evidence"); 1856, Brotherton v. Mart, 6
Cal. 488 (lost recorded deed ; record copy pre-
ferred to other evidence); Ga.: Code 1895,
§ 5220 (on loss of record and original document,
any evidence admissible " which does not dis-
close the existence of other and better evi-
dence ") ; compare also § 5173 (examined copy
preferred to oral evidence) ; 1873, Mobley v.
Breed, 48 Ga. 44, 47 (sworn copy of assessment-
proceedings, preferred to oral testimony) ; 1895,
Bowden v. Achor, 95 id. 254, 22 S. E. 254 (docu-
ment in another State ; oral testimony sufficient,
unless a certified copy were obtainable, as in
the case of an official document) ; Ida. : Rev.
St. 1887, § 5999 (for public records, or other
documents in custody of a public ofiicer, or re-
corded, a copy must be produced ; for others,
" either a copv or oral evidence of the con-
tents"); III.: '1844, Williams v. Jarrot, 6 111.
120, 129 (clerk's certificate of letters of admin-
istration, preferred to oral evidence of appoint-
ment) ; 1848, Mariner v. Saunders, 10 id. 113,
121 (sworn or certified copy of a recorded deed,
if available, preferred to recollection ) ; la.:
1859, Higgins i;. Keed, 8 la. 298, 300 (copy of a
public record preferred to. oral evidence) ; 1861,
Horseman v. Todliunter, 12 id. 230, 234 (certi-
fied copy of recorded mortgage preferred to
oral evidence) ; Mass. : 1829, Poignaud v. Smith,
8 Pick. 272, 279 (registry-copy of a mortgage
preferred to oral testimgny) ; 1832, Sheldon v.
Friuk, 12 id. 567 (oral testimony of a record's
' 1835, Draper v. Clemens, 4 Mo. 52, 54
(copy of notary's register not preferred to the
protest or to his testimony) ; 1866, Wells v. J. I.
Mfg. Co., 47 N. H. 235, 256 (record in a town
clerk's office ; provable by parol, " where the
case from its nature does not disclose the ex-
istence of other and better evidence " ; here re-
fusing to have a record made up anew) ; 1837,
Blackburn v. Blackburn, 8 Oh. 81, 83 (lost deed ;
certified copy of record not preferred to oral
recollection); 1832, U. S. v. Reyburn, 6 Pet.
352, 367 (privateer's commission by Government
of Buenos Ayres ; sworn or certified copy from
the record, not preferred to testimony of oue
who had seen the commission, on the facts).
Distinguish the principle of § 1244, ante,
where the object of proof is not the terms of the
record, but its net effect.
1540
§§ 1177-1282] KINDS OF COPIES.' § 1270
tations to such a general rule may well obtain, and there should be a judicial
discretion to make exceptions.
Where the judicial or official record is no longer in existence at the time
of trial, the reason for the rule falls away, and it should be enough to require
the proponent to show, before using recollection-testimony, that he has no
copy within his control;* but the fact that the record is in another jurisdic-
tion would not exempt from the requirement of a copy,^ because a copy is
obtainable and because the procuring a copy is no more difficult than the
procuring a perusal for recollection-testimony.
§ 1270. Same: (6) Copy of Record of Conviction, as preferred to Convict's
Testimony on Cross-Bxamination. When it is desired to prove against a wit-
ness his conviction of crime, for the purpose either of excluding him as in-
competent by infamy (ante, § 519) or of discrediting him by the conviction
{ante, § 980), the object of the proof is the contents of the record embodying
the judgment of conviction. A strict application, therefore, of the foregoing
principle {ante, § 1269) would require the record's contents to be proved by
a copy of it, and not by recollection- testimony :
1806, EUenhorough, L. C. J., in R. v. Castell Careinion, 8 East 77, 79 : " It cannot
seriously be argued that a record can be proved by tiie admission of any witness. He
may have mistaken what passed in court, and may have been ordered on his knees for a
misdemeanor. This can only be known by the record."
1822, Com. V. Green, 17 Mass. 514, 537 : " If anything short of a record should be ad-
mitted to impeach the competency of a witness, it would be easy for parties accused to
protect themselves from punishment; and it would be in most cases impossible for the
-witness attacked without previous notice to defend his reputation." ^
But, while it may be conceded that such should be the rule as against the
recollection-testimony of a second witness called for the purpose of proving
contents ; a certified transcript preferred) ; smith v. Jones, 13 Wis. 565, 568 (certified copy
Mich.: 1873, I'latt v. Hauer, 27 Mich. 167^ of record of lost mortgage preferred to oral
(exemplification of U. S. laud-patent, preferred testimony); 1881, Johnson v. Ashland L. Co.,
to oral testimony) ; Mont. : 1878, Belk v. 52 id. 458, 463, 9 N. W. 464, sembJe (same).
Meazher, .3 Mont. T. 65, 72 (ofiicial copy of For cases preferring the official custodian's
original title-records, preferred to recollection of testimony to the absence of a record, see ante,
witnesses as to, location) ; N.U.: 1827, Colby v. §1344.
Kenniston, 4.N. H. 262, 265, semble (record of * 1878, Ilittson ,>. Davenport, 4 Colo. 169,
lost deed, preferred to oral testimony); N. C: 174 (burnt judicial records; contents proved
1835, Kello v. Maget, 1 Dev. & B. 414, 424 (for orally, the existence of better evidence not
bonds, records, etc.; order of preference is a appearing); 1890, Conway v. John, 14 id. 30,
copv, an abstract, recollection); Or.: C. C. P. 23 Pac. 170 (lost files, proved orally); 1895,
1892, § 691 (like Cal. C. C. P. § 1855); Te.nn.: Hobbs v. Beard, 43 S. C. 370, 21 S. E. 305
1808, Hampton v. M'Ginnis, 1 Overt. 286, 294 (oral evidence of lost record's contents, ad-
(official list of land-entries in lost books, pre- mitted where no copy appeared to be in offeror's
ferred to oral evidence of the entries); 1809, power).
Keid V. Dodson, ib. 395, 402 (copy of recorded ° Otto v. Trump, Pa., Bowden v. Acbor, Ga.,
plat, preferred to surveyor's testimony, to prove in notes 1, 2, supra. Contra: 1803, Young v. ■
an alteration); Tex.: 1849, Lewis v. San An- Gregorie, 3 Call 446, 452 (record in a foreign
tonio, 7 Tex. 288, 311 (whether a certified or country may be proved by depositions, etc.,
sworn copy of a lost recorded original is pre- without producing a copy of the record) ; 1 809,
ferred to oral testimony; discussed but not Hadfield v. Jameson, 2 Munf. 53, 70, 76, 78
decided); 1868, Werbiskie v. McManus, 31 id. (preceding case approved).
116,122, semble (certified copy of letters of ad- ^ This, however, was said only of testimony
ministration, preferred to clerk's testimony on by a second witness, and not of the first witness'
the stand) ; Utah Rev. St. 1898, § 3410, par. 5 cross-examination,
(like Cal. C. C. P. § 1855); Wis.: 1861, Sex-
1541
§ 1270 DOCUMENTARY ORIGINALS. [Chap. XXXIX
the conviction, it is surely a straining of technical requirements to forbid
proof by the testimony of the impeached witness himself, given on cross-
examination. Lord Ellenborough's sober suggestion that the witness " may
have mistaken what passed in court" is a refinement of apprehension, and
borders nearly on the ridiculous. That there is any real risk of reaching an
erroneous result by taking the witnees' own admission against his credit,
extracted on cross-examination, is impossible; there is in such a case no
need to insist upon a copy :
1869, Cooley, C. J., in Clemens v. Conrad, 19 Mich. 175: " We think the reasons for
requiring record evidence of conviction have very Httle application to a case v^here the
party convicted is himself upon the stand and is questioned concerning it with a view to
sifting his character upon cross-examination. The danger that he will falsely testify to
a conviction which never took place, or that he may be mistaken about it, is so slight that
it may almost be looked upon as purely imaginary; while the danger that worthless
characters will unexpectedly be placed upon the stand, with no opportunity for the
opposite party to produce the record evidence of their infamy, is always palpable and
imminent."
Such, at least, was the earlier rule, when on the voir dire a witness' in-
famy could be proved by his own admissions.^ But, by the end of the 1700s,
the English Courts were discouraging, in every technical way possible, ob-
jections based on the outworn rules of incompetency ; and thus it came about
that, while the incompetency of infamy still existed, the absolute rule was
enforced that proof must be made by a copy of the record.^ The rule thus
established was usually made applicable also (except where statute had ex-
pressly intervened) for the purposes of discrediting a witness, after the
statutory reforms under which infamy ceased to disqualify ; though the
reasons for treating with disfavor such a method of excluding a witness had
little force for the mere process of discrediting him.*
The result is that three types of rule now obtain in the different jurisdic-
tions : (i) the requirement of a copy in all cases ; (2) the allowance of an
admission on cross-examination of the witness to be impeached, but the
requirement of a copy or an abstract when proof is made by another witness,
— this rarely by common-law decision, but widely by statute ; (3) the allow-
ance of recollection-testimony either from the witness to be impeached or
from another, -^ this rarely, and by statute only. The second form is the
only proper one, and now obtains in the majority of jurisdictions.^
2 1787, R. c. Priddle, Leach Cr. L, 3cl ed., I, 2 Stark. 116, 151 ("When a crime is imputed
382 ("being examined on the voir dire, he to a witness of which he maybe convicted by
aclinowledged " a conviction, and was excluded ) ; due course of law, the Court know but one
1791, R. c;. Edwards, 4 T. R. 440 (" wliether he medium of proof, — the record of conviction ") ;
had not stood in the pillory for perjury"; 1852, Cresswell, J., in Macdonnell ». Kvans, 11
allowed, and witness rejected). There liad C. B. 930, 935.
been an earlier case to the contrary : 1699, R. o. ^ * In some Courts, however, the distinction
Warden of the Fleet, 12 Mod. 337, 341. is made ; see the cases infra in Arkansas and
' 1763, BuUer, Trials at Nisi Prius, 292 Tennessee.
("Note: the party who would take advantage ' In the following list the various statutes
of this exception to a witness must have a copy and decisions are collected ; rulings dealing
of the record of conviction ready to produce in with such quibbling and evasive questions as
Court") ; 1806, R. v. Castell Careinion, 8 East "whether he had been in jail" are included
77 ; 1817, Ellenborough,L.C. J., in R.U.Watson, here; statutes not here quoted (though cited)
1542
§§ 1177-1282]
KINDS OF COPIES.
§ 1270
Where, for the purpose of discrediting, a judgment in a civil suit could be
proved, it would seem that a similar rule should by analogy apply .^
are quoted ante, § 488 ; the statutes wliich
allow a clerk's certificate, summarizing the
record, involve the principles of §§ 1678,2110,
post, but are noted here: England: 1851, St.
14 & 15 Vict. c. 99, § 13 (record of conviction or
acquittal is provable by the cleric's certified
abstract) ; 1854, St. 17 & 18 Vict. c. 125, § 25
("A witness in any cause may be questioned as
to whether he has been convicted of any felony
or misdemeanor, and upon being so questioned,
if he either denies the fact or refuses to answer,
it shall be lawful for the opposite party to prove
such conviction ; and a certificate containing the
substance and effect only (omitting the formal
part) of the indictment and conviction for such
offence," .signed by the clerk or other custodian,
shall suffice, " upon proof of the identity of the
per.son"); 1865, St. 28 Vict. c. 8, §§ 1, 6 (ex-
tended to criminal cases ) ; Canada : the fol-
lowing statutes are like the English St. 1854,
varying only as to the kind of crime {ante,
§ 986) thus provable: Dom. Crim. Code 1892,
I 695 (substituting " any offence ") ; B. C. Hev.
St. 1897, c. 71, § 32 ; iV. Br. Consol. St. 1877, c.
46, § 22; Neivf. Consol. St. 1892, c. 57, § 20;
N. Sc. Rev. St. 1900, c. 163, § 45 ; Ont. Rev. St.
1897, c. 73, § 19 (substituting "crime" for "fel-
ony or misdemeanor") ; P. E. I. St. 1889, c. 9,
§18; United States: Ala. Code 1897, § 1796
(" A witness may be examined touching his con-
viction for crime, and his answers may be con-
tradicted by other evidence") ; 1882, Baker v.
Trotter, 73 Ala. 277, 281 (question not allowed) ;
1893, Thompson v. State, 100 id. 70, 72 (same) ;
1895, Murphy v. State, 108 id. 10, 18 So. 557
(record required); Alaska C. C. P. 1900, § 669
(like Or, Annot. C. 1892, § 840) ; Ark. Stats.
1894, § 2959 (a conviction " may be shown by the
examination of a witness or record of a judg-
ment ") ; 1886, Scott !). State, 49 Ark. 156, 158,
4 S. \V. 750 (objection to competency ; judge's
report of convictions, excluded) ; 1893, Southern
Ins. Co. V. White, 58 id. 277, 279, 24 S. W. 425
(objection to competency ; production required) ;
1899, Cash v. Cash, 67 id. 278, 54 S. W. 744 (wit-
ness' admission on the stand, sufficient); 1902,
Vance w. State, 70 Ark. 272, 68 S. W. 37 (to
prove disqualification, and not merely impeach-
ment of credit, the record-copy must be produced,
the witness' admission not sufficing; the statute
not applying to proof of a disqualifying crime ;
Riddick, J., diss.) ; Cal. C. C. 1^ 1872, § 2051
(" it may be shown by the examination of the
witness, or the record of the judgment, that he
had been convicted of a felony " ) ; 1870, People
V. Reinhart, 39 Cal 449 (question not allowed) ;
1870, People v. McDonald, ib. 697 (same);
1874, People v. Manning, 48 id. 335,338 (rule
not applicable to a question about an arrest) ;
1886, People v. Rodrigo, 69 id. 606, 11 Pao. 481
(question allowed) ; 1895, People v. Dillwood, —
id. — _ 39 Pac. 439 (question allowed) ; Colo.
Annot. St. 1891, § 4822 (quoted ante, § 488);
§ 2065 (" a witness must answer as to the fact
of his previous conviction for felony"); D, C.
Code 1901, § 1067 (a conviction may be proved
"either upon the cross-examination of the wit-
ness or by evidence aliunde " ; " it shall not be
necessary to produce the whole record of the
proceedings containing such conviction, but the
certificate, under seal, of the clerk of the court
wherein such proceedings were had, stating the
fact of the conviction and for what cause, shall
be sufficient"); Fla. Rev. St. 1892, §§ 1096,
1097 (quoted ante, § 488) ; 1900, Squires v. State,
42 Pla. 251, 27 So. 864 (allowed, on cross-ex-
amination) ; St. 1901, c. 4966 ("such conviction
may be proved by questioning the proposed wit-
ness, or if he deny it, by producing a record of
his conviction ") ; Ga. : 1 873, Johnson v. State, 46
Ga. 118 (record-copy required) ; 1888, Doggett
V. Simms, 79 id. 257, 4 S. E. 909 (the transcript
must include the accusation or indictment) ;
1896, Killian v. R. Co., 97 id. 727, 25 S. E. 384
(record required) ; 1898, Huff v. State, 104 id.
384, 30 S. E. 868 (indictment ; record required) ;
Maw. Civil Laws 1897, § 1420 (" A witness may
be questioned as to whether he has been con-
victed of any indictable or other offence " ; the
remainder substantially like Eng. St. 1854, c.
125); Ida. Rev. St. 1887, § 6082 (like Cal. C.
C. P. § 2051); III. Rev. St. 1874, c. 51, § 1
(quoted <m<c, §488 ; applies only to civil proceed-
ings) ; c. 38, § 426 (conviction of crime " may be
shown" in criminal cases; no method stated);
1882, Bartholomew v. People, 104 111. 601, 606
(copy required in criminal cases ; " at least the
caption, returning of the indictment into open
court by the grand jury, the indictment and
arraignment," are essential; thus, a mittimus
with a copy of the judgment, given to the jailer,
are insufficient); 1897, Gage v. Eddy, 167 id.
102, 47 N. E. 200 (testimony byanother witness,
allowed) ; Ind. .- 1877, Farley v. State, 57 Ind.
333 (excluded on cross-examination ; yet left
doubtful) ; Ind. T. ; 1898, V\^illiams o. U. S., 1
Ind. Terr. 560, 45 S. W. 116 (record required) ;
la. Code 1897, § 4613 ("A witness may be in-
terrogated as to his previous conviction for a
felony. But no other proof is competent ex-
cept the record thereof") ; Kan. : 1886, State v.
Pfefferle, 36 Kan. 90, 92, 12 Pac. 406 (record
not necessary) ; 1891, State o. Probasco, 46 id.
310, 26 Pac. 749 (cross-examination allowed);
Ky. C. C. P. 1895, § 597 (conviction may be
shown " by the examination of a witness or
record of a judgment"); 1892, Burdette v.
Com., 93 Ky. 78, 18 S. W. 1011 ("previous
8 1862, Henman w. Lester, 12 C. B. n. s. 776
(question to party to discredit him as to losing
a former civil suit ; Byles, J., was for exclusion,
because the record should be, produced, the
statute not affecting this sort of case ; Willes &
Keating, JJ., were for admission both in this
1513
case and that of a prior conviction, because
either the person admits the judgment, which
should suffice, or he denies it, when, apart from
statute, he cannot be contradicted upon a
collateral matter). Compare the rules ante,
§§ 1244 and 1256.
§ 1271
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
§ 1271. Same: (c) Copy of Foreign Statutory Law, as preferred to Recol-
lection-Testimony. The process of proving a foreign law raises a number
conviction could not be more safely and
satisfactorily shown by record evidence tlian
by admission of the person himself who was
convicted ") ; 1901, Wilson w. Com., — id. — , 64
S. W. 457 (allowed on cross-examination, in
criiniaal cases) ; 1901, Mitchell v. Com., — id.
— , 64 S. VV. 751 (same) ; L-j.; 1824, Castellano
V. Peillon, 2 Mart. N. s. 466 (outside testimony
excluded) ; 1900, State v. Robinson, 52 La. An.
541, 27 So. 129 (question to the witness himself,
allowable); 1901, Stite v. McCoy, 109 La. 682,
33 So. 730 (whether he had been convicted and
sent to the penitentiary, allowed) ; Aid. Pub.
Gen. L. 1888, Art. 35, § 5 (the whole record need
not be produced, but only a certificate of clerk
under seal); 1885, Smith u. State, 64 Md. 25
(whether he had ever been confined in jail, al-
lowed) ; 1894, McLaughlin v. Mencke, 80 id. 83,
30 Atl. 603 (question as to conviction, allowed) ;
1902, Gambrill o. Schooley, 95 id. 260, 52 Atl.
500 (allowed, on cross-examination) ; Mass. :
1769, Advocate General v. Hancock, 1 Quincy
461 (record required) ; 1822, Com. v. Green,
17 Mass. 514, 5-37 (see quotation supra); 1855,
Com. «. Quin, 5 Gray 479 (record required);
1868, Com. i\ Gorham, 99 Ma.ss. 420, 421 (the
record must include the final judgment, because
tlie verdict may have been set aside) ; 1894,
Com. V. Sullivan, 161 id. 59, 36 N. E. 583
(whether he had been in jail in Essex County ;
excluded) ; 1900, O'Brien «. Keefe, 175 id. 274,
56 N. E. 588 (upon a promise of later producing
the record, the witness may be asked de bene, to
identify him) ; Afick: 1867, Wilbur v. Flood, 16
Mich. 44 (copy necessary for outside witness,
but not for cross-examination; followed in en-
suing cases) ; 1869, Clemens v. Conra'l, 19 id.
170, 174 (see quotation supra); 1870, Dickinson
V. i)ustin, 21 id. 565 (here the record of an
attorney's disbarment was technically defec-
tive) ; 1882, DriscoU v. People, 47 id. 416, 11
N. VV. 221 ; 1836, People v. Mausaunan, 60 id.
15, 21, 26 N. W. 797; 1890, Helwig o. Las-
cowski, 82 id. 621, 46 N. W. 1013 ; Comp. L.
1897, § 1046 (justice's certificate of conviction, ad-
missible) ; 1903, Pratt v. Wickham, — id. — ,
94 N. W. 1059 (allowed on cross-examination) ;
Minn. Gen. St. 1894, § 6841 (quoted ante, § 483) ;
1888, State v. Curtis, 39 Minn. 359, 40 N. W.
263 (statute applied) ; Miss. : Annot. C. 1892,
§ 1746 (cross-examination allowable; quoted
ante, ^ 987); 1897, Jackson v. State, 75 .Miss.
145, 21 So. 707 (question allowed) ; Mo : 1854,
State V. Edwards, 19 Mo. 675, 676 (record re-
quired) ; 1878, State y. Rugan, 68 id 214 (same) ;
1883, State V. Lewis, 80 id. 110, HI (that the
witness had been seen in the penitentiary as a
convict, excluded) ; 1885, State v. Rockett, 87
id. 666, 669 (the record is the only evidence);
1890, State v. Brent, 100 id. .531, 13 S. W. 874
(excluded, on cross-examination); 1890, State i>.
Miller, 100 id. 606, 621, 13 S. W. 1051 (whether
he had been in the penitentiary ; record not re-
quired ; preceding rulings iguored) ; 1893, State
V. Taylor, 118 Mo. 153, 24 S. W. 449 (cross-ex-
amination allowed, "for the purpose of honestly
1
discrediting him) "; 1894, State i: Pratt, 121 id.
566, 26 S. W. 556 (similar); 1894, State v.
Martin, 124 id 514, 28 S. W. 12 (question as to
number of times in jail; record not required);
Laws 1895, p. 284, Rev. St. 1899, §4680 (convic-
tion is provalde "either by the record or by liis
own cross-examination " ; quoted ante, § 488) ;
Mont. C. C. P. 1895, § 3379 (like Cal. C. C. P.
§ 2051) ; P. C. § 1242 (conviction may be proved
by the record " or by his examination as such
witness"); 1895, State u. Black, — Mont. — ,
38 Pac. 674 (undecided) ; Nehr. Comp. St. 1899,
§ 5912 (like la. Code § 4613); 1902, Leo v.
State, 63 Nebr. 723, 89 N. W. 303 (questions held
improper on the facts, because of abuse of the
rule); .V. H.: 1862, Smith b. Smith, 43 N. H.
536, 538 (whether a witness had been bound
over to appear on a charge of perjury ; not
allowed) ; N. J. Gen. St. 1896, Evid § 9 (convic-
tion may be proved by "examination of such
witness or otherwise," and he may be con-
tradicted) ; St. 1900, c. 150, § 7 (re-enacting
the terms of Gen. St. Evid § 9) ; 1899, Brown
V. State, 62 N.J. L. 666,42 Atl. 811 (statute
applied) ; A^. M. Comp. L. 1897, § 3025 (sub-
stantially like Eng. St.' 1854); N. Y : 1816,
People V. Herrick, 13 Jolin. 82, 84 (question not
allowed, but cliiefly on account of the privilege
against self -disgrace); 1817, Hilts v. Colvin, 14
id. 182, 184 (even where the record has been
burnt, oral evidence is inadmissible where a
cerdficate of its tenor was required by law to be
filed in the court of Exchequer) ; 1862 Newcomb
V. Griswold, 24 N". Y. 299 (record necessarv) ;
1870, Real v. People, 42 id. 273, 281 (whethfer
he has been " in jail, the penitentiary, oi- the
State prison," admissible ; but as to whether he
has been convicted, " a different rule may per-
haps apply") ; 1877, C. C. P. § 832 (in civil or
criminal cases, the conviction may be proved
" either by the record or by his cross-examina-
tion"); 1881, Perry i). People, 86 N. Y. 353,
358 (oral question as to conviction improper;
but if not objected to because tlie record should
be produced, the answer is receivable) ; 1881,
Pen. C. § 714 (" [The conviction may be proved]
either bv the record, or his cross examination ") ;
1883, People v. Noelke, 94 N. Y. 137, 144 (ques-
tion on cross-examination allowed) ; 1889, Spiegel
V. Havs, 118 id. 660, 22 N. E. 1105 (same) ; Oh. :
1870,' Wroe v. State, 20 Oh. St. 471 (left un-
decided) ; OH. : 1898, Asher v. Terr., 7 Okl. 188,
54 Pac. 445 (whether the witness had been in
jail, allowed) ; 1899, Hyde v. Terr., 8 id. 69, 56
Pac. 851 (allowed on cross-examination) ; Or.
C. C. P. 1892, § 840 (like Cal. C. C. P. § 2051) ;
R. I.: 1892, State v EUwood, 17 R. L 763, 768,
24 Atl. 782 (allowable on cross-examination) ;
S. C. : 1903, State o. Williamson, 65 S. C. 242,
43 S. E. 671 ( Clemens «. Conrad, Midi., followed ;
here applied to a question about an indictment) ;
Tenn. : 1895, Boyd v. State, 94 Tenn. 505, 29
S. W. 901 (record required, where the witness
is to be excluded, not mcrelv discredited);
1896, Moore v. State, 96 id. 209", 33 S. W. 1046
(record required) ; U. S. : 1834, U. S. v. Woods, 4
.54-1
§§ 1177-1282] KINDS OF COPIES. § 1271
of interesting questions of principle, not always sufficiently discriminated.
Some of these have already been noticed, — the experiential qualifications
necessary for a witness {ante, § 564), the necessity of personal knowledge by
the witness [ante, §§ 668, 690), and the exemption from the rule requiring'
production of the original {ante, §§ 1213, 1218). Others involve subsequent
principles, — the admissibility, under exceptions to the Hearsay rule, of
certified copies {post, § 1680), of official printed volumes {post, § 1684), of
private reports of cases {post, § 1703), and of legal treatises {post, § 1697),
the effect of the Opinion rule {post, § 1953), the presumption as to the nature
of an unproved foreign law {post, § 2536), and the part of the tribunal —
judge or jury — to whom evidence is to be offered {post, § 2558).
The particular question here is whether the evidence of a foreign " written
law " should be presented in the shape of a copy or merely by recollection-
testimony of one qualified to know it. That the " unwritten law," i. e. a cus-
tomary law or a judicial decision, may be proved by the latter mode has never
been questioned. But, on the principle already noted (ante, § 1269), when the
law to be proved is a statute, the preferred mode of proof would be a copy of
the literal terms of the official record. Is there any reason why the principle
should suffer any modification in the present class of cases 1 The argument -
in the negative is presented in the following passage :
184:4, Palteson, J., in Baron de Bode's Case, infra: "I quite agree that a witness con-
versant with the law of a foreign country may be asked what in his opinion the law of that
country is. But I cannot help thinking that, as soon as it appears that he is going to
speak of a written law, his mouth is closed. . . . The general rule is not denied, that
when the contents of a written instrument are to be proved, the insti'Ument itself should
be produced, or, when the instrument from its nature is provable by an examined copy,
then such examined copy. I cannot see why the rule sliould not be the same in the case
of a foreign written law. ... I think the rule would be just the same if the question
related to the French code as existing at this moment. If a witness were asked what the
law now is with respect to a bill of exchange in France, and were immediately cross-
examined as to whether that law was not in writing, and answered that it was, I think a
copy of the law must be produced."
But the answer to this is clear. It may be conceded that, if the question
were purely and simply directed to the contents of a specific statute, the
proof should be by copy of its terms. But in the usual case this is not the
question ; the inquiry is as to the state of the law at the present time or at
Cr. C. C. 484, 486 (allowed on cros.s-examina- out the rec'ord^iopy) ; Wis. Stats. 1898, §4073
tion, but not by other testimony); 1893, Balti- (quoted ante, §488); 1859, Kirschner w. State,
more & 0. K. Co. b. Rambo, 8 C. C. A. 6, 59 9 Wis. 140, 144 (record required) ; 1879, lugalls
Fed. 75 (proof of the oral plea of guilty by one v. State, 48 id. 647, 654, 4 N. W. 785 (same) ;
present in court at the time, excluded); Utah 1881, McKesson v. Sherman, 51 id. 303, 311,8
Kev. St. 1898, § 3431 (like Cal. C. C. P. N. W. 200, semble (same) ; 1900, Shafer v. Eau
§2065); Vt: 1897, State i'. Slack, 69 Vt.486, 38 Claire, 105 id. 239, 81 N. W. 409 (allowed on
Atl. 311, semble. (record required) ; 1902, McGov- cross-examination, but the time and place must
ern v. Smith, — id. — , 53 Atl. 326 (allowed be specified ; this is merely a perversion of the
on cross-examination); Wash.: 1893, State v. rule of § 1025, ante) ; 1902, CuUeu v. Haniseh,
Payne, 6 Wash. 563, 568 (record required) ; 1 14 id. 24, 89 N. W. 900 (question as to the mere
W. Va. : 1902, State v. Hill, — W. Va. — , 43 fact of being in jail, excluded) ; 1903, Paulson
S. E. 160 (conviction may be proved by the wit- v. State, — id. — , 94 N. W. 771 (oral testimony
ness' answer ; in any case, the fact of having to conviction is under the statute allowed only
been in the penitentiary may be proved with- on cross-examination).
1545
§ 1271 DOCUMENTAEY OEIGmALS. [Chap. XXXIX
a given time past. This inquiry can be answered only by taking into con-
sideration the appropriate statute, if any, the pre-existing rule of custom or
judicial precedent as affected by the statute, the validity of the statute under
some possible constitution, and the actual effect of the statute as determined
by prior and subsequent judicial application of the constitution and. by
judicial construction of the statutory words. In short, an answer as to the
state of the law at a given moment can never be a mere reproduction, offered
in place of a copy, of statutory words ; it is a statement {ante, § 1242)
of a net fact separate from the words of a statute, and involving many con-
siderations in which the words of a statute are but a single element. The
acceptance of a mere copy of the statute, far from securing greater accuracy,
would on the contrary tend rather to mislead, by ignoring these other material
elements. This view of the question was expounded in masterly opinions in
Baron de Bode's Case :
1844, Baron de Bode's Case, 8 Q. B. 250 ; Denman, L. C. J. : " The form of the ques-
tion [as to the state of the law in France in 1789] is immaterial ; in effect the witness is
asked to speak to the decree. It is objected that this is a violation of the general prin-
ciple that the contents of a written instrument can be shown only by producing the
instrument or accounting for the non-production. But there is another general rule, that
the opinions of persons of science must be received as to the facts of their science. That
rule applies to the evidence of legal men; and I think it is not confined to unwritten law,
but extends also to the written laws which such men are bound to know. Properly
speaking, the nature of such evidence is not to set forth the contents of the written law,
but its effect and the state of law resulting from it. The mere contents, indeed, might
often mislead persons not familiar with the particular system of law. . . . When Pothier
states the law of France as rising out of an ordonnance made in a particular year, can we
exclude that as being merely his account of the contents of a written instrument ? I
cannot conceive that in any civilized country a statement from Blackstone's Commen-
taries would be rejected, which set forth what the law was, when altered, and up to what
time continued. Such a statement would not relate merely to the contents of the statute
referred to, but to the state of the law before or after its pas.sing " ; Coleridge, J. ; '• What,
then, do we mean by a knowledge of the law ? That question seems to me to go to the
foundation of the whole matter; and it must be determined, with reference to the par-
ticular question before us, by a little subdivision. We must first inquire as to the
sources of our knowledge, and, secondly, as to the time over which we are to range for
our knowledge. Now, with regard to the sources of the knowledge, we are to find it
partly in the actual documents, the writings first existing as laws, . . . [and where these
are wanting,] from text-books, reported decisions, records, and local customs prevailing in
particular districts. . . . Then, next, as to the time over which our knowledge is to
range. When we talk of a man having a knowledge of the law, do we mean a knowledge
of the law only as it exists in the courts of justice at the present day, or do we mean that
knowledge of the law and the changes it has undergone which he has acquired in the
course of study that gives him the character of a scientific witness V I apprehend we
clearly mean the latter. . . . The question for us is, not what the language of the writ-
ten law is, but what the law is altogether, as shown by exposition, interpretation, and
adjudication. How many errors might result if a foreign Court attempted to collect the
law from the language of some of our statutes which declare instruments in certain cases
to be ' null and void to all intents and purposes,' while an English lawyer would state
that they were good against the grantor and that the Courts have so expounded the
statutes I "
1546
§§1177-1282] KINDS OF COPY; FOEEIGN STATUTE.
§ 1271
1844, Lord BrougJiam, in Sussex Peerage Case, 11 CI. & F. 85, 115: " It is perfectly
clear that the proper mode of proving a foreign law is not by showing to the House the
book of the law ; for the House has not organs to know and to deal with the text of that
law, and therefore requires the assistance of a lawyer who knows how to interpret it."
1846, Erie, J., Cocks v. Purday, 2 C. & K. 270 : " The proper course, to ascertain the
law of a foreign country, is to call a witness expert in it, and ask him on his responsi-
bility what that law is, and not to read any fragments of a code, which would only
mislead."
This solution is so plain that it is singular that judicial opinion waited so
long to expound it. The opposite solution had been sanctioned by English
common-law Courts on a few occasions before and after the year 1800 ; ^ but,
in spite of these rulings, the overwhelming weight of English authority of
that period, representing the original tradition, did not require proof by copy.^
About the year 1845, the decisions quoted above removed for England the
previous uncertainty of precedent.^
But in the meantime, in the United States, the just proportion of the
minority of the English rulings not being perceived, some of them served to
,^ In the following cases a copy was re-
quired : 1776, Sir G. Hay, iu Harford v, Morris, 2
Hagg. Cons. 430 (" not by the opinions of law-
yers, which is the most uncertain way in the
world, but by certificates ") ; 1800, Boehtlinck
V. Schneider, 3 Esp. 58 (on argument that the
unwritten law, though not the written, could be
proved orally, Kenyon, L. C. J., still insisted,
for proof of the Kussian law about stoppage
in transitu, upon "an authenticated document
of the laws "; and the K. B. concurred) ; 1812,
Ellenborough, L. C. J., in Clegg v. Levy, 3
Camp. 166 (but here the witness was probably
incompetent) ; 1815, Gibbs, C. J., in Millar v.
Heinricic, 4 Camp. 155 (Russian admiralty regu-
lations). In the following cases the ruling is
obscure: 1797, Alves v. Hodgson, 7 T. K. 241,
Kenyon, L. C. J. ; 1800, Male v. Roberts, 3 Esp.
164, FMon, L. C. J.; 1801, Inglia v. Usherwood,
1 East 520, K. B.
' The following cases are to that effect,
though some of them do not expressly apply
the doctrine to a statute : 1744, Hardwicke,
L. C, in Gage v. Bulkeley, Ridgw. cas. temp.
Hardw. 276 ; 1774, Mostyn v. Fabrigas, Cowp.
161, 174 (Mansfield, L. C. J.: "The way of
knowing foreign laws is by admitting them to
be proved as facts, and the Court must assist
the jury in ascertaining what the law is. For
instance, if there is a French settlement, the
construction of which depends upon the cu.stom
of Paris, witnesses must be received to explain
what the custom is ; as evideuce is received of
customs iu respect to trade " ; no discrimina-
tion made on the present point) ; 1789, Kenyon,
L. C. J., in Walpole v. Ewer, Ridgw. 276, note,
sf.mble; 1791, Kenyon, L. C. J., in Ganer «.
Lady Lanesborough, Feake 18 (the fact of a
Jewish divorce, according to custom in Leg-
horn, proved orally); 1791, Kenyon, L. C. J.,
in Chanrand v. Angerstein, ib. 44; 1802, Sir
W. Wynne, in Middleton v. Janverin, 2 Hagg.
Cons. 443 (written and unwritten laws) ; 1806,
Ellenborough, L. C. J., in Picton's Trial, 30
-35
How. St. Tr. 509 (written laws) ; 1807, Ellen-
borough, L. C. J., in Richardson v. Anderson, 1
Camp. 66, sembte ; 1807, Buchanan v. Uucker, ib.
63 (mode of service of process iu Tobago ; the
written law not required) ; 1812, Abbott, C. J.,
iu Lacon ». Higgins, 3 Stark. 178, Uowl. & R.
N. P. 44 (where also a text was offered ) ; 1 828,
Trotter v. Trotter, 4 Bligli s. s. 504, House of
Lords; 1834, Trimby o. Vignier, 4 Moore & S.
703 (by consent ; Tindal, C. J., and Ct. of C. P.) ;
1834, Alivon v. Furnival, 1 C. M. & R. 291,
Parke, B., and the Ct. of Exch.
^ England: 1844, Sussex Peerage Case, 11
CI. & F. 85, 114 (expert allowed to state the
law of marriage in Rome, and to refresh his
memory by looking at law-books at the same
time) ; 1845, Baron de Bode's Case, 8 Q. B. 208,.
246 (expert opinion as to the law of inheritance
at a particular time in Alsace, that feudal law
had been there ended by a decree of the French
Assembly of Aug. 4, 1789, allowed without
producing a copy of the decree ; Patteson, J.,
diss.) ; 1845, Nelson v. Bridport, 8 Beav. 527,
539 (expert opinion of Sicilian law " upon
several points," admitted) ; 1846, Cocks v. Pur-
day, 2 C. & K. 269 (whether a parol transfer
sufficed in Bohemian law, allowed) ; 1 852, R. u.
Newman, 3 C. & K. 252, 262, Lord Campbell,
C. J. (proof of foreign Court's jurisdiction made
by parol) ; 1863, Di Sora v. Pbillipps, 10 H. L. C.
624, 633 (expert opinion as to legal effect of
marriage contract in Italian law, admitted
without requiring copies) ; Canada : Ont. : 1850,
Short V. KingsmUl, 7 U. C. Q. B. 354; 1852,
Arnold v. Higgins, 11 id. 446; Man. Rev. St.
1902, c. 57, § 32 (for the purpose of ascertaining
foreign law judicially noticed, the judge may
require " evidence upon oath," " oral or written,
or by certificate or otherwise, as may seem
proper").
For the British statutes providing for the use
of a judicial certificate of the law as obtaining in
a foreign country or in some other part of the
British Dominions, see post, § 1 674.
1547
§ 1271
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
establish the erroneous view in a few early rulings in our Courts. Thus, un-
fortunately, in a majority of our jurisdictions the erroneous doctrine came to
prevail (though later legislation has in some jurisdictions corrected it) that,
wherever a statute was in any way involved, a copy of the statute was the
preferred evidence required.*
163, 166 (foreign law in general; provable
orally) ; 1847, Isabella v. Pecot, 2 La. An. 387,
391 (statute not provable orally) ; Sfe. Pub. St.
1883, c. 82, § 109 (parol evidence of foreign
law which " appears to be existing in a written
statute or code," may be rejected unless accom-
panied by copy) ; 1838, Owen v. Boyle, 15 Me.
149, sembte (statute not provable orally) ; Md. :
1857, Wilson v. Carson, 12 Md. 75, semble (U. S.
State statute provable orally) ; 1867, Baltimore
& O. K. Co. V. Glenn, 28 id. 323 (U. S. State
statute ; not provable orally) ; 1869, Zimmer-
man V. Helser, 32 id. 278 (same ; both erroneously
go upon Gardner v. Lewis, 7 GiU 394) ; Mass.
Pub. St. 1882, c. 169, § 72, Rev. L. 1902, c. 175,
§ 76 (foreign law provable in all cases by parol,
except that the Court may in discretion require
also a copy of a writteu statute) ; 1811, Legg v.
Legg, 8 Mass. 99, semble (foreign law not prov-
able orally) ; 1817, Frith v. Sprague, 14 id. 455,
semble {contra) ; 1825, Raynham v. Canton, 3
Pick. 293, 296 (statute provable orally ; " to re-
quire [an exemplification, etc.] would put the
citizens to an unnecessary burden and ex-
pense " ; but statute-book preferred to oral
testimony); 1829, Haven v. Foster, 9 id. 112,
130 ("if written, it mast be proved by docu-
mentary evidence ") ; 1868, Klme v. Baker, 99
Mass. 254, semble (expert may testify to stat-
ute) ; Bowditch v. Soltyk, ib. 138, semble (same) ;
Mich.: 1858, People v. Lambert, 5 Mich. 349,
360 (foreign statute not provable orally) ; 1863,
Kermott v. Ayer, 1 1 id. 184 (statute not provable
orally; that the law is statutory, not assumed,
at least where the consequence would be the re-
versal of a judgment otherwise good) ; 1880,
Kopke V. People, 43 id. 43, 4 N. W. 551, semble
(statute not provable orally) ; Afinn. Gen. St.
1894, § 5716 (unwritten or common law of any
State or Territory of the U. S., provable "as
facts by parol evidence ") ; § 5718 (like Del.
Rev. St. c. 107, § 8); Miss.: 1852, Stewart
V. Swanzy, 23 Miss. 502 (statute not provable
orally); Mo.: 1857, Charlotte v. Chouteau, 25
Mo. 465, 473 (statute not provable orally) ;
Mont. C. C. P. 1895, § 3190 (like Cal. C. C. P.
§1902); Neir. Comp. St. 1899, § 5970 ("the
unwritten or common law " is provable by parol
evidence); §5994 (same); N. H.: 1851, Wat-
son V. Walker, 23 N. H. 471, 496 (oral testimony
excluded for written law, semble, even where it
does not appear whether the law was written) ;
1854, Emery v. Berry, 28 id. 473, 485 (of a for-
eign State, only by an exemplified copy under
the seal of State or by a sworn copy ; of a
domestic State, also by official printed copv;
but not orally) ; 1868', Hall v. Costello, 48
N. H. 176, 179 (expert testimony to British
enlistment statute, admitted); N. Y. : 1806,
Kenny v. Clarkson, 1 Johns. 394 fstatute not
provable orally) ; 1829, Chanoine v. Fowler, 3
Wend. 177 (same) ; 1830, Hill v. Packard, 5
* The cases on both sides, with the statutes,
are as follows: Ala.: 1840, Innerarity v. Mims,
1 Ala. 666 (oral evidence of statute inadmis-
.sible) ; Ark.: 1850, Barkman v. Hopkins, 11
Ark. 168, semble (oral evidence of statute ad-
missiye); 1856, McNeill o. Arnold, 17 id. 154,
164 (oral testimony to registry-statutes, ex-
cluded) ; 1878, Bowles v. Eddy, 33 id. 645,
649 (same ; usury statutes) ; 1884, Blackwell
V. Glass, 43 id. 209, 211 (oral testimony to
usage as to sufficiency of return, admitted);
CaL: C. C. P. 1872, § 1902 ("The oral testi-
mony of witnesses skilled therein is admissible
as evidence of the unwritten law of a sister
State or foreign country " ; this by implication
preserves the erroneous rule) ; Del. Rev. St.
1893, c. 107, § 8 (" The existence and the tenor
or effect of all foreign laws may be proved as
facts by parole evidence ; bat if it shall appear
that the law in question is contained in a written
statute or code, the Court may, in its discretion,
reject any evidence of such law which is not ac-
companied by a copy of such code or statute ") ;
Fla. Rev. St. 1892, § 1108 (like Del. Rev. St.
c. 107, § 8) ; Ida. Rev. St. 1887, § 5971 (like
Cal. C. C. P. § 1902; inserting "Territory");
III.: 1858, Merritt v. Merritt, 20 111 65, 80 (oral
testimony to unwritten law, admissible) ; 1858,
Hoes V. Van Alstyne, ib. 201 (specific statute
not provable orally) ; 1868, Merritt v. Merritt,
45 id. 80, semble (same) ; 1873, McDeed v.
McDeed, 67 id. 545, 548 (common-law provable
orally); 1874, Milwaukee & S. P. R. Co. v.
Smith, 74 id. 197, 199 (same); Znd. Rev. St.
1897, §§ 489, 490 (like Del. Rev. St. c. 107, § 8,
for "the laws of any foreign country"); 1840,
Comparet v. Jernegan, 5 Blackf. 376 (oral evi-
dence of statute, inadmissible) ; 1854, Heberd v.
Myers, 5 Ind. 94 (like next case) ; 1 860, Line v.
Mack, 14 id. 330 (statute of domestic State, oral
testimony excluded, but for foreign States, the
Court has a discretion); la. Code 1897, §4652
("unwritten or common law" provable by parol
evidence); 1855, Lattourett v. Cook, 1 la. 1, 8
(deposition to statute excluded) ; 1859, Greasons
V. Davis, 9 id. 223 (oral evidence of common law,
admissible) ; 1874, Crafts v. Clark, 38 id. 241
(same) ; 1885, State v. Cross, 68 id. 180, 195,
26 N. W. 62 (statute as to notaries ; expert
testimony excluded) ; Kan. Gen. St. 1897, c. 97,
§ 18 (like la. Code, § 4652) ; 1882, Brenner v.
Luth, 28 Kan. 588 (oral evidence of the law,
admitted ; its nature does not appear) ; Ky.
Stats. 1899, § 1640 (the unwritten law of an-
other of U. S. is provable by " parol evidence of
persons learned in the law"; remainder sub-
stantially like Del. Rev. St. c. 107, § 8) ; 1831,
Talbot V. Peoples, 6 J. J. M. 200 (statute as
to legal rate of interest ; oral evidence ex-
cluded) ; 1847, Tyler i;. Trabue, 8 B. Monr. 306
(whether a note was negotiable ; depositions al-
lowed) ; La. : 1843, Rosine v. Bounabel, 5 Rob.
1548
§§1177-1282] KINDS OF COPT; F0EEIG2T STATUTE.
§ 1272
The provision, in most of the reforming statutes, that the Court may in its
discretion require that testimony from an expert be accompanied by a copy
of the statute in question, is a wise one. It may be noted, finally, that, on
the one hand, oral testimony merely to the words of a statute and to nothing
more has never been claimed to be proper ; ^ while, on the other hand, expert
testimony to the technical construction of the words or phrases of a statute
whose terms are otherwise properly proved is on all hands considered to be
receivable.^
§ 1272. Preferences as between RecoUeotion-'WitnesBes. Where no pref-
erence for a copy applies, and recollection-testimony is allowable, no further
rule of preference can properly be laid down as between different kinds of
recollection-witnesses, — for example, a rule preferring the wiriter of a lost
document to a witness who had read it.^
id. 375, 384, semble (same) ; 1831, Lincoln v.
Battelle, 6 id. 475, 482 (same); 1840, Be Rob-
erts' Will, 8 Paige Ch. 448, semble (same) ;
1880, Hynes v. McDermott, 82 N. Y. 52 (same) ;
N. C. Code 1883, § 1338 (the unwritten or com-
mon law may be proved " by oral evidence ") ;
N. D. Rev. C. 1895, § 5690 (same as Okl. Stats.
§ 4260) ; Oh. Rev. St. 1898, § 5244 (unwritten
law is provable by parol evidence) ; OH. Stats.
1893, § 4260 ("The unwritten or common law
of any other State, Territory, or foreign gov-
ernment, may be proved as facts by parol evi-
dence"); Or. C. C. P. 1892, §727 (like Cal.
C. a P. § 1902); Pa..- 1826, Dougherty v.
Swett, 15 S. & R. 87 (statute not provable
orally; but law will not be assumed to be
statutory); 1840, Phillips v. Gregg, 10 Watts
161, 169 (the difficulty or obtaining information
as to the Spanish or other laws in the early
Louisiana territory was regarded as sufficient
to admit parol evidence); R. I.: 1870, Bar-
rows V. Downs, 9 R. I. 446 (statute provable
orally ; following the arguments of Baron de
Bode's Case and Sussex Peerage Case) ; S. C.
Gen. St. 1882, c. 86, § 2218, Rev. St. 1893,
§ 2353, Code 1902, § 2890 (printed copies of
foreign written law receivable ; unwritten or
common law "may be proved as facts by parol
evidence"); S. D. Stats. 1899, § 6.533 (like
N. D. Rev. C. § 5690); Tex.: 1847, Bryant
!'. Kelton, 1 Tex. 436, semble (statute not proT-
able orally) ; 1854, Martin v. Payne, 11 id. 292,
295 (oral testimony as to rate of interest, ex-
eluded) ; U. S. : 1804, Church v. Hubbart, 2
Cr. 238, semble (statute not provable orally) ;
1810, Livingston v. Ins. Co., 6 id. 274, 280
(foreign trade regulations not shown to be
in writing, provable by parol) ; 1807, Robinson
V. Clifford, 2 Wash. C. C. 1 (statute not prov-
able orally) ; 1808, Seton v. Ins. Co., ib. 175
(same) ; 1808, Jaffray v. Dennis, ib. 253 (same) ;
1816, Consequa v. Willings, 1 Pet. C. C. 229
(same); 1843, Wilcocks v. Phillips' Ex'rs, 1
Wall. Jr. 49, 53 (same; though here the diffi-
culty of getting a copy of a law of China was
allowed to exempt from the rule); 1852, Ennis
V. Smith, 14 How. 426, semble (general rule as
above); 1882, Pierce v. Insdeth, 106 U. S. 551,
1 Sup. 418, semble (same) ; 1901, Herbst v.
1549
Asiatic Prince, 47 C. C. A. 328, 108 Fed. 289
(law of Brazil, as to delivery of goods under the
customs law, proved by a lawyer's testimony) ;
1902, Mexican N. R. Co. v. Slater, 53 C. C. A.
239, 115 Fed. 593, 606 (expert testimpny "as to
the proper construction of a statute of a foreign
country and written in a foreign tongue," the
terms of the statute having been proved by
copy, held admissible) ; 1903, Badische A. &
S. F. I'. Klipstein, 125 Fed. 543 (testimony of
German lawyers, that certain records of in-
corporation in Baden, proved by copy, were
legallv sufficient to incorporate, admitted) ;
Utah "Rev. St. 1898, § 3381 (like Cal. C. C. P.
§ 1902, adding "Territory"); Vt.: 1803, Wood-
bridge V. Austin, 2 Tyl. 364, 366 ("if a written
law, it must be produced ") ; 1827, Danforth v.
State, 1 Vt. 259, 260, 266 (te.stimony that a
deposition-caption was according to the statute
of Massachusetts, received) ; 1855, Smith v.
Potter, 27 id. 304, 307, 309 (statute not prov-
able orally) ; W. Va. Code 1891, c. 13, § 4 (in
noticing the law, " statutory or other," of the
U. S. or any other State or country, the judge
" may consult any printed book purporting to
contain, state, or explain the same, and consider
any testimony, information, or argument that
is offered on the subject ") ; Wis. Stats. 1898,
§§ 4138, 4139 (the common law of the U. S.,
a State or Territory is provable by parol ; re-
mainder substantially like Del. Rev. St. c. 107,
§ 8) ; Wi/o. Rev. St. 1887, § 2592 (like Oh. Rev.
St. § 5244).
° This seems to have been assumed without
decision.
' 1857, Bremer v. Freeman, 10 Moore P. C.
362; 1857, Walker v. Forbes, 31 Ala. 10; 18.S7,
Dyer v. Smith, 12 Conn. 384, 390; 1898, Canale
V. People, 177 lU. 219, 52 N. E. 310; 1902,
Mexican N. R. Co. v. Slater, C. C. A., supra.
Compare the opinion rule {post, § 1953).
1 1816, Liebman v. Pooley, 1 Stark. 167
(writer of original not preferred to another who
had seen it, in giving parol evidence of con-
tents) ; 1869, Huls r. Kimball, 52 111. 390, 395
(maker of mortgage not preferred to mort-
gagee) ; 1816, Las Caygas k. Larionda, 4 Mart.
La. 283, 287 (official certificate of a notary's
office and signature, not preferred to ordinary
§ 1273 DOCUMENTARY ORIGINALS. [Chap. XXXIX
§ 1273. Preference as between Biffereut Kinds of "Written Copies ; Certified
and Sworn Copies. Every copy (except the sort mentioned post, § 1280,
par. (2)), is in strictness an " examined " copy, in the sense that the original
and the copy have been examined or compared together by the witness,
either in his own act of transcription or by taking some one else's transcrip-
tion and comparing it with the original {ante, § 1265). But the term
' examiaed copy " has by tradition come to be associated with a copy made
by a private person not the official custodian of the document. Thus the
terms " examined " or " sworn " are used for copies sworn to upon the stand
as correct, in distinction from " certified " or " attested " or " office " copies,
i. e. copies made in the public office by the official custodian, where the docu-
ment is an official one. This distinction, however, had its origin and main-
tains its importance in a very different field of the law, namely, the Hearsay
rule ; for, under the exception for Official Statements (post, § 1677) the
question arises how far such official (or " certified," " attested," " office ") copies
are receivable ; and whenever their admission, under that exception, is not
justifiable, the copy must be verified by a witness on the stand, i. e. must be
a " sworn " or " examined " copy. Thus, under that exception to the Hearsay
rule, but there only, the distinction between certified and sworn or examined
copies is a solid one.
It is because of this distinction, created and maintained under another
principle of the law of evidence, that there has been a tendency to recognize
some distinction, for the present principle also, between the two kinds of
copies, and to require a certified in preference to a sworn copy, in proving the
contents of official documents. Such a distinction has no support, either in
orthodox tradition or in reasons of policy. So far as the traditional practice
is concerned, the sworn copy was in England for a long time almost the ex-
clusive mode of proving official documents other than judicial records, because
the Hearsay exception allowing the use of certified copies was there recog-
nized (until statutory changes occurred) to only a limited extent (jiost,
§ 1677). In the United States, however, owing to the broader scope given
to this common-law exception, and owing to its liberal expansion by statute
at an early date, the certified copy came into more general, if not almost ex-
clusive use ; so that the youngest generation of practitioners in many juris-
dictions seldom use or even see a sworn copy of an official document. Add
to this that the statutes enlarging the exception to the Hearsay rule and
making all kinds of official documents in almost all jurisdictions provable by
certified copy have sometimes been misapprehended by the Courts ; i. e. a
witness); 1843, Rosine i'. Bonnabel, 5 l?ob La. alone competent to prove existence and contents
163, 166 (same) ; 1883, Jolinson v. Skipworth, of his record, though any person may prove ab-
59 Tex. 473, 475 (last custodian of a lost record, sence of A conveyance in record ; a distinction
not preferred to other witnesses) ; 1896, Brown indefensible); 1843, Whiteford v. Burckmver,
V. Stanton, 69 Vt. 53, 37 Atl. 280 (the town clerk 1 Gill 127, 141 (the addressee of a letter, held a
is not the exclusive witness of the contents of preferred witness to its contents); 1903, Sykes
the town records ; any one who has examined v. Beck, — N. D. — ,96 N. W. 844 (cited ante,
them may testify to the absence of a certain § 1244, note 4) ; 1 903, Fisher u. Betts, — id. — ,
record). Contra: 1895, Hines «. Johnston, 95 96 N. W. 132 (similar). Compare also the cases
Ga. 629, 23 S. E. 470 (deed-register's clerk is cited post, § 1278.
1550
§§ 1177-1282] KINDS OF COPY PKEFEREED. § 1273
provision intended merely to enable such a copy to be used where it could
not be used before has sometimes been ignorantly treated as though nothing
not specified in the statute could be used as a copy, and thus as if the statute
provided an exclusive mode(a?ifo, § 1186; post, § 1655). In some such ways
as these the notion has been sanctioned in a few jurisdictions that a certified
copy should be preferred to a sworn copy. That this notion is wholly un-
founded, the following passages indicate:
Ante 1726, Chief Baron Gilbert, Evidence, 15 : " Objection. But if exemplifications under
the Broad Seal are the highest evidence that the nature of the thing is capable of, then
why are any proofs admitted but them? . . . Answer. [The rule does not mean] that
nothing under the highest assurance possible should have been given in evidence to prove
any matter in question. To strain the rule to that height would be to create an endless
charge and perplexity, for there are almost infinite degrees of probability, one under the
other; ... a contract attested by two witnesses gains more credit than a contract at-
tested by one, and therefore by the same argument one witness would be no good proof
of a contract ; and all these are plainly as good reasonings as to say that the sworn copy
of a record ought not to he admitted because a copy under the Broad Seal is a stronger
evidence."
1885, Peters, C. J., in State v. Lynde, 77 Me. 561, 562, 1 Atl. 687 : " Examined copies
are in England resorted to as the most usual mode of proving records. The mode . . .
seems to have prevailed in many of the States, including Pennsylvania and New York.
It was at an early date adopted in some of the Federal Courts. It is not an unknown
mode of proof in New England. . . . Why not admissible ? The evidence is as satis-
factory certainly as a certified copy. In the latter case we depend upon the honor and
integrity of an official, and in the former upon the oath of a competent witness. In
either case, an error or fraud is easily detectible. Probably the reason why such a mode
of proof has not been much known, if known at all, in our practice, is that it is cheaper
and easier to produce [certified] copies ; and if a witness comes instead, it is more satis-
factory to have [as here] the officer who controls the records bring them into court."
With reference, then, to any rules of preference as between different kinds of
copies, the precedents fall under the following heads :
(1) There is properly no preference for a certified or office copy over a
sworn or examined copy ; ^ though a few jurisdictions recognize such a pref-
erence in some instances.^
1 N. Br. Consol. St. 1877, c. 46, § 7 (record or 1 Atl. 687 (see quotation supra) ; 1895, State v.
document recorded or depcsited "in any public Collins, 68 N. II. 299, 44 Atl. 495 (internal reve-
office in this province "may be proved bv an nue record; certified copy not preferred) ; 1881,
examined copy) ; 1876, Blackman v. Dowling, Manney v. Crowell, 84 N. C. 314 (certified copy
57 Ala. 78, 80 (statutory certified copy not of registered lost contract for title, not preferred
preferred to examined copy) ; HI. Rev. St. 1874, to a sworn copy) ; 1886, Otto v. Trump, 115 Pa.
c. 51, § 18 (records, etc., provable by certified 425, 429, 8 Atl. 786 (certified copy under Federal
copy, " may be proved by copies examined and statute about foreign records, not preferred to
sworn to by credible witnesses ") ; 1887, Union examined copy ) ; 1887, Harvey y. Cummings, 68
R. & T. Co. V. Shaclslet, 119 lU. 232, 240, 10 Tex. 599, 602, 5 S. W. 513 (certified copy of
N. E. 896 (foreign administrator's appointment; judicial record, not preferred to examined copy),
certified copy not preferred to examined copy) ; So, too, for proof of execution of the document ;
1 837, Harris v. Doe, 4 Blackf. 369, 376 (certified 1840, McConnel v. Reed, 3 111. 371 (certified copy
copy of land-petition not preferred to sworn of recorded deed, not preferred),
copy, on the facts) ; 1842, Rawley «. Doe, 6 id. Add all the jurisdictions ante, § 1268, not
142, 145 (similar) ; 1881, Hall ,u. Bishop, 78 Ind. preferring a copy to recollection-testimony;
370, 371 (tax-list ; certified copy not preferred) ; they would probably also not prefer a certified
1820, Bowman v. Bartlett, 3 A. K. Marsh. to a sworn copy.
86, 89 (certified copy of probate of a will, not ^ Cal. C. C. P. 1872, § 1907 (examined or
preferred); 1885, State v. Lynde, 77 Me. 561, sworn copy of foreign judicial record, receivable
1551
§ 1273
DOCUMENTAEY OEIGINALS.
[Chap. XXXIX
(2) There is no preference for a copy judicially established under statutes ^
providing a mode for establishing a record of the contents of a lost or de-
stroyed document.*
(3) There is no preference for the transcriber personally over any other
person competent to verify the copy.^ ,
(4) There is probably, and ought to be, a preference for a copy over an
abstract, i. e. a copy ought to be shown unavailable before an abstract can
be used.®
(5) A few other miscellaneous instances of preference are now and then
recognized.'^
only when also attested by the proved seal of
the Court, or if none, or if not the record of a
Court, hy the legal keeper's proved signature) ;
Conn. Gen. St. 1887, § 1093 (examined copy of
proceedings of any Court, commuuity, corpora-
tion, society, or public board, admissible when
clerk is absent or disabled) ; 1846, Bryant v.
Owen, 1 Ga. 355, 369 (certified copy of probate-
bond, preferred to copy established inslanter) ;
1895, Hiues v. Johnston, 95 id. 629, 23 S. E.
470 (cited ante, § 1272; the astonishing rule is
laid down that while any person who has exam-
ined the records may testify that a particular
conveyance is not there, yet in showing the
existence and contents of a record "this fact
could not be proven by any witness other than
the clerk ; nor by him, except by a certified
copy of such record under his hand and seal ") ;
1877, Donellan v. Hardy, 57 lud. 393, 402 (a
certified transcript of judgment, preferred to an
ofiicial printed report of decision) ; 1880, Jones
V. Levi, 72 id. 586, 590 (a sworn copy of record
ranks next to an attested copy) ; 1836, Davidson
V. Slocomb, 18 Pick. 464, 466 (the records of a
justice of the peace may be proved by sworn
copies, but only where the magistrate's certified
copies are unavailable) ; 1824, State v. Isham, 3
Hawks 185 (record of another Court provable
by exemplified copy, where the Court seal's
indistinctness prevented the copy from being
considered) ; 1832, Thomson v. Gaillard, 3 Rich.
418, 425 (certificate of the clerk of a Legislative
body, preferred, in proving the contents of the
journal, to the testimony of another person) ;
1877, State v. Cardinas, 47 Tex. 250, 290 (cer-
tified copy of Mexican archives, preferred to
other copies, on the facts); 1886, Clayton v.
Khem, 67 id. 52, 2 S. W. 45 (certified copy of a
tax-roll in the comptroller's office, preferred to
other copies in the assessor's hands) ; 1 824,
Eenner v. Bank, 9 Wheat. 581, 597 (notarial
copy of a note, not preferred, where the offeror
is not shown to have one). Compare the North
Dakota cases cited ante, § 1 244, note 4.
' For these statutes, see post, §§ 1660, 1682,
where also are examined certain other questions
arising under them.
* 1878, Jernigau v. Carter, 60 Ga. 131, 133;
1880, Cross v. Jolmson, 65 id. 717,719; 1897,
Haugw. Hilev, 101 id. 372, 29 S. E. 44; 1898,
Forsyth c. Vehmeyer, 176 111. 359, 52 N. E. 55;
1873, Xason v. Jordan, 62 Me. 480, 484 (oral
evidence of a burned record of partition, not
made secondary to v. copy authorized to be
recorded in place of the burnt record) ; 1878,
Drake w. Kinsell, 38 Mich. 232, 235; 1874,
Parry v. Walser, 57 Mo. 169, 172; 1887, Mobley
t>. Watta, 98 N. C. 284, 289, 3 S. E. 677 ; 1893,
Varner v. Johnston, 112 id. 570, 576, 17 S. E.
483 (will probated and records burnt) ; 1893,
Williams v. Kerr, 113 id. 306, 310, 18 S. E. 501
(foreclosure, record) ; 1899, (/Ox v. Beaufort
C. L. Co., 124 id 78, 32 S. E. 381 ; 1883, Johnson
V. Skipworth, 59 Tex. 473, 475. Compare the
cases cited post, § 1347.
" See the citations post, § 1278.
6 1836, Doe v. Wainwright, 1 Nev. & P. 8, 12
(Patteson, J. ; " It is certainly laid down in the
books that a counterpart is the next best evi-
dence, — that a copy is the next. The abstract
of a deed is the next best evidence after the
copy has been accounted for " ; but whether, if
a copy had been shown to exist, it would have
been preferred to the abstract, was expressly
left undecided) ; 1874. Illinois Land & L. Co. v.
Bonner, 75 III. 315, 323 (copy of lost wiU, sent
to the proponent, preferred to an abstract).
For abstracts, as violating the principle of
Completeness, see post, §§ 2105, 2107 ; for stat-
utes allowing the use of abstracts of burnt records,
see the same place, and also the Hearsay excep-
tion, post, § 1705. An abstract should not be
preferred to an extract : 1892, Converse v. Wead,
142 IlL 132, 136, 31 N. E. 314 (under Burnt
Records Act of 1887, abstracts are not preferred
to extracts or minutes in the sense that the
former must first be shown unavailable).
' 1705, Stillingfleet v. Parker, 6 Mod. 248
(a copy of the enrolment of a lease, required to
be enrolled, preferred to a copy in an ancient
book of leases) ; 1849, Schley v. Lyon, 6 Ga.
530, 539 (newspaper publisher's sworn copy of
his files, preferred to copy by another persou) ;
N. Y. C. C. P. 1877, § 931 (examined copy of
foreign corporation's books preferred; details
of verification by witness, specified).
For the question whether the recitals of a
sheriffs deed are admissible instead of a copy of
the judgment recited, see post, § 1664.
For the question whether a printed rolume of
statutes is receivable instead of a certified copy
of the statute, see post, § 1684.
For the question whether letters of adminis-
tration or letters testamentary are preferred to a
copy of the probate record, see ante, § 1238.
'rhe preference as between clerk's docket-
entries or minutes and other evidence of a
judicial record involves, not a rule of evidence.
1552
§§ 1177-1282] KINDS OF COPY PREFEREED. § 1275
§ 1274. Discriminations against a Copy of a Copy; (1) in General. The
plirase " copy of a copy '' has long been used ^ as in itself implying some
sort of disparagement. This has in some quarters given rise to the loose
notion that a copy of a copy (or " mediate copy," as it may better be termed,
in contrast to an immediate copy) is in itself and always an improper mode
of proof of contents.'^ This notion, indeed, finds some countenance in a
passage of an early writer, which, however, probably did not mean any more
than that a mediate copy was inferior to an immediate one :
1726, Chief Baron Gilbert, Evidence, 8 : " A copy of a copy is no evidence ; for the
rule demands the best evidence that the nature of the thing admits, and a copy of a
copy cannot be the best evidence ; for the farther off a thing lies from the first original
truth, so much the vfeaker must the evidence be."
Certainly there is in the nature of a mediate copy nothing that makes it
per se defective. When paper A is copied into paper B and this into paper
C, the last is in theory as accurate a reproduction as B is. There is merely
the possibility that an error may have occurred in the second transcription ;
but this possibility exists for the first also ; there is merely one chance more
to be added to the total number of chances. It must be concluded, then,
that the discrimination, if any, against a mediate copy, is merely in the
nature of a rule of preference, requiring first the use of an immediate copy,
if one is available. This view is emphasized in Mr. Justice Story's classical
utterance :
1835, Story, J., in Winn v. Patterson, 9 Pet. 663, 677 : " We admit that the rule, that a
copy of a copy is not evidence, is correct in itself, when properly understood and limited
to its true sense. The rule properly applies to cases where the copy is taken from a copy,
the original being still in existence and capable of being compared with it, for then it is
a second remove from the original; or where it is a copy of a copy of a record, the record
being still in existence by law deemed as high evidence as the original, for then also it is
a second remove from the record. But it is quite a different question whether it applies
to cases of secondary evidence where the original is lost, or the record of it is not in law
deemed as high evidence as the original; or where the copy of a copy is the highest
proof in existence. On these points we give no opinion; because this is not in our judg.
ment the case of a mere copy of a copy verified as such, but it is the case of a second
copy verified as a true copy of the original [being R.'s copy of a record-copy, the latter
being made by himself and compared with the original]. ... In effect, therefore, he
swears that both are true copies of the original power, [and either would be admissible.]"
1871, Foster, J., in Cameron y. Peck, 37 Conn. 763: " The rule that a copy of a copy
is not evidence properly applies [1] to cases where the original is still in existence and
capable of being compared with it, or [2] where it is the copy of a copy of a record, the
record being still in existence, and being by law as high evidence as the original.''
§ 1275. Same : (2) Specific Rules of Preference as to Copy of Copy.
(a) In ascertaining whether there are any specific rules of preference prop-
but the substantive law as to what constitutes 2 igag, Alderson, B., in Everingham t>. Roun-
the record ; this matter is not within the pur- dell, 2 Moo. & Bob. 138 (" There would be no
view of this treatise, but is dealt with briefly limit to the reception of secondary evidence, if
post, § 2450. that were so. . . . This is but the shadow of a
^ One of its first a{)pearances seems to be in shade ").
1653, Faulconer's Trial, 5 How. St. Tr. 323, 349,
356, cited in the next section.
1553
§ 1275 DOCUMENTARY ORIGINALS. [Chap. XXXIX
erly applicable to the detriment of a mediate copy, we must first distinguish
those situations in which a mediate copy would be excluded or admitted
upon independent principles.
(fti) On the one hand, assuming proof by a copy of a copy to be legitimate,
the very notion imphes that the intermediate document was a correct copy ;
and until the correctness of the intermediate document is shown, there is noth-
ing to verify the second copy as being correct, for it is based on the anony-
mous hearsay of the person who made the first document, purporting to be
but not shown to be really a copy of the original. Without such testimony
by some one to the correctness of the intermediate document as a copy, the
copy of it (on the principle of § 1278, post) is plainly inadmissible.^
(a*) On the other hand, a copy which happens to have been first tran-
scribed from an intermediate copy can be made itself an immediate copy,
by comparing and verifying it directly from the original? Moreover, a medi-
ate copy used as a memorandum, by one knowing the original, to refresh
recollection of the original (ante, § 760) and not offered as a copy, is not
offered as a copy of a copy, and is therefore available, wherever {ante,
§ 1268) recollection-testimony is proper.^
(6) It then remains to ascertain what definite rules of preference apply
against a mediate copy as such, i. e. assuming that it is proved to be what it
purports to be. These legitimate rules of preference are based upon the
general notion that, where the original is still accessible (though not pro-
ducible, under § 1218, ante) for the purpose of obtaining an immediate copy,
there an immediate copy may fairly be required to be obtained and offered.
QP-) In the first place, if the original is an existing public record, and the
immediate copy not, a mediate copy from the latter (it seems well settled)
should be excluded ; since the original is still accessible for obtaining an
immediate copy.*
1 1814, Teed v. Martin, 4 Camp. 90 (to prove inal, both apparently being made and verified
an affidavit of ship-ownership, an official clerk by R., receivable).
who had made an entry from a certificate of ' i843, Dunlap v. Berry, 5 111.326, 331 (copy
registry made by another clerk who alone had of a copy may be used to refresh memory as to
seen the affidavit, not admitted) ; 1884, Dyer y. the original); 1875, Fowler o. Hoffman, 31
Hudson, 65 Cal. 372, 4 Pac. 235 (.stenographer's Mich. 215, supra, note 1.
copy of certified copy read in evidence at former * 1685, Anon., Skin. 174 ("If the original
trial, original document being lost, excluded ; [will] be burnt or lost, etc., a copy of their [i. e.
but here tlie stenographer was not called to Ecclesiastical Court's] registry hath been often
verify it, nor the reader of the certified copy) ; given in evidence ; but a copy of a copy cannot ") ;
1898, Crane Co. v. Tierney, 175 111. 79, 51 1862, Sternberg b. Callanan, 14 la. 251 (copy of
N. B. 715 (copy of a record which was a copy copy of declaration; excluded pn the facts);
of a copy of a document not proved, excluded) ; 1897, Drumm v. Cessnun, 58 Kan. 331, 49 Pac.
1875, Fowler v. Hoffman, 31 Mich. 215 (copy of 78 (copy of judicial records should be of the orig-
a copy, the latter not shown to be correct, in- inals, not of the transcript) ; 1869, Goodrich v.
admissible ; unless the former can be verified Weston, 102 Mass. 362 (Wells, J. : " Whenever
from recollection as correct) ; 1882, People «. a copy of a record or document is itself made
McKinney, 49 id. 334, 13 N. W. 619 (copy by original or primary evidence, the rule is clear
one stenographer of another's notes without and well settled that it must be a copy made
subs;gquent comparison of copy aud original, directly from or compared with the original;
excluded, the notes being lengthy and covering ... so long as another may be obtained from
over 100 pages). the same source, no ground can be laid for re-
^ 1859, Gregory v. McPherson, 13 Cal. 562, sorting to evidence of an inferior or secondary
574 (copy of a copy, compared anew with the character"); 1864, Lund v. Rice, 9 Minn. 230
original, received) ; 1835, Winn ii. Patterson, 9 (record of a copy of recorded deed, iuadmissilde
Pet. 663, 677 (copy of a record-copy of an orig- apart from statute) ; 1831, Lincoln v. Battelle,
1554
§§ U77-1282]
COPY OF A COPY.
§ 1275
(6^) In the next place, if the original and also the immediate copy are
both existing public records, the same rule would seem to apply, for it is
still as feasible to obtain an immediate copy from the original record,
though here there is found some difference of judicial opinion and statutory
rule.^ Where the original is out of the jurisdiction, the requirement may
well be relaxed.®
(e) Such are the legitimate and easily defended rules of preference. There
remains to be noticed certain situations, in which it would seem that no rule
of preference can properly exist, i. e. situations in which the original is no
longer accessible for purposes of immediate copying. Where this is the case,
6 Wend. 47.'), 484 (copy of a certified copy of a
foreign decree, excluded); 1881, Goddard v.
Parker, 10 Or. 102, 106 (certified copy of cer-
tified copy of oflScial map, excluded) ; 1890,
Lasater v. Van Hook, 77 Tex. 650, 655, 14
S. W. 270 (certified copy of deed-record, original
being lost, preferred to examined copy of cer-
tified copy) ; 1843, Carpenter v. Sawyer, 17 Vt.
121, 124 ("a copy of a certified copy of a record
is not evidence ").
° In this class of cases the commonest instance
of statutory change is the allowance of the use of
copies from the re-record, in another county, of
a judicial record or the like: Ariz. Eev. St.
1887 § 1878 (certified copies of records of new
county transcribed from records of original
county, admissible) ; Ark. : 1851, State v. Crow,
11 Ark. 642, 656 (justice's judgment-transcript
filed in Circuit Court ; clerk's copy of this suffi-
cient); Colo. Annot. Stats. 1891, § 457 (certified
copies of records transcribed on formation of
new county, admissible); III.: 1873, Miller o.
Goodwin, 70 111. 659 (transcript of official copy
of original legislative minutes, admitted) ; Ind. :
1876, Nelson i'. Blakey, 54 Ind. 29, 35 (articles
of incorporation filed with county recorder, cer-
tified copy of this record filed with Secretary of
State ; certified copy from the Secretary's office,
excluded as a copy of a copy of a copy not
authorized by the statute) ; la. Code 1897,
§ 4639 (documents in office of U. S. surveyor-
general, though themselves copies, provable by
copy); 1862, Niles v. Spragne, 13 la. 198, 202
(a foreign certificate of marriage must be
proved by direct copy, and not by a copy of the
clerk's record) ; Ky.: 1816, Hedden v. Overton,
4 Bibb 406 (copy of a book of record, itself
containing copies of Virginia patents, admitted,
under a statute admitting copies of '' records
and other papers " of the register's office) ; 1816,
Owings V. Tilery, ib. 450 (Maryland will, pro-
bated there, and recorded by copy in this State ;
copy of record admitted) ; 1817, Rogers v. Bar-
nett, ib. 480 (similar); 1818, Spurr «. Trimble,
I A. K. Marsh. 278, 279 (copy of power of
attorney, certified by Virginia notary as re-
corded by him, then recorded by local clerk of
Court; a copy of this, excluded); La.: 1831,
Lum V. Kelso, 2 La. 64, 67 (copy of record of
judgment made in another court, excluded) ;
1851, Look V. Mays, 6 La. An. 726 (transcript
of lower Court's transcript of Supreme Court's
order of reversal, received); 1857, West Feliciana
R. Co. V. Thornton, 12 id 736 (similar); 1859,
Wood V. Harrell, 14 id. 61, 63 (certified copies
of recorded copies received on the facts) ; Miss.
Annot. Code 1892, § 1807 (records of county or
court or office, transcribed by order of board of
supervisors ; copy or transcribed records to have
same effect as original); Mo. Rev. St. 1899,
§ 10197 (county surveyor's certified copy of
filed certified copy of U. S. field-notes, admissi-
ble) ; 1827, Bettis v. Logan, 2 Mo. 2 (transcript
of transcribed record filed in another court,
admissible); Nev. Gen. St. 1885, §§304, 311
(certified copies of certain transcribed mining
records, admissible).; N. C: 1824, State v.
Welsh, 3 Hawks 404,407,409 (certified copy of
a statute reciting another statute, admissible ;
Henderson, J., diss.); N. C. Code 1883, § 428
(certified copy of judgment recorded with
county recorder, admissible) ; Pa. St. 1798, P. &
L. Dig. Court Rec. 3 (exemplifications of Phila.
County Court records of roads, copied from orig-
inal record, receivable) ; St. 1833, P. & L. ])ig.
Evid. 32 (official copies of copies of official
drafts of donation lands, receivable) ; St. 1889,
P. & L. Dig. Evid. 27 (record of probated will
in another county tlian proved, receivable in
certain cases); Tex. Rev. Civ. Stats. 1895,
§§ 2319, 2320 (certified copies of transcribed
records for new counties, admissible) ; §§ 4585-
4593 b (transcribed records in general ; provi-
sions for using); U. S. Rev. St. 1878, §§ 897,
898 (transcripts of certain judicial records into
new books, admissible) ; Va. : 1814, Whitacre v.
M'llhaney, 4 Munf. 310, 312 (copy of a record
containing copies of decree, etc , excluded).
6 1900, Knoxville Nursery Co. v. Com., 108
Ky. 6, 55 S. W. 691 (certified copy of a foreign
corporation's certificate of incorporation locafiy
filed, admissible ; the foreign certificate is not
here the original, because the local certificate is
itself a new admission of corporate existence) ;
1900, Com. w.Corkery, 175 Mass. 460, 56 N. E.
711 (corporation commissioner's certified copy
of a copy filed with him of foreign articles o'f
incorporation, admitted) ; 1868, Corbett v. Nutt,
18 Gratt. 624, 633, 637 (certified copy of a will
and probate from a court in D. C., where it
had been probated from an authenticated copy
from court of original probate, received, the
second probate being out of the State ; whether
a copy of this second copy could be received,
not decided).
1555
§ 1275 Documentary originals. [Chap. xxxix
a mediate copy may well be used as freely as an immediate copy, because
otherwise the unfair burden (similar to that spoken of ante, § 1268) would
be imposed on the proponent of searching for possible immediate copies and
of proving them unobtainable. Any rule requiring in such a case the immedi-
ate copy to be accounted for must proceed on the radical principle that a
mediate copy is so inferior to an immediate copy that the latter must always
be used if any one pre-existing specimen can by possibility be fouud. It is
one thing to require (as in par. b) that, where new direct copies can be
obtained ad libitum, such a copy shall be procured at a definite office ; but it
is taking a much further step to say that, though no new ones can now be
created, yet search must be made in unspecified places for any that may
have been previously taken and may still exist. To such an extent very
few Courts are willing to go. Pour varieties of this situation may be dis-
tinguished :
(c^) Where the original and the Jirst copy are both lost or destroyed, it is
clear that the mediate copy should be admitted ; and this seems not to have
been disputed.^
(c^) Where the original is lost or destroyed, and the first copy is not pro-
ducible because it is an official record, practically the same situation as the
preceding is presented, since neither original nor first copy is producible. It
is generally conceded that the mediate copy may be used ; and the statutes
which authorize the official copying of torn or illegible records provide usu-
ally for admitting copies of these copies.^
(c^) Where the original is a deed lawfully recorded and therefore need not
be produced {ante, §§ 1224, 1225), \hQ first copy being the official record and
thus also not producible, practically the same situation is again presented,
' 1873, Cornett v. Williams, 20 Wall. 226, ordered and filed, admissible) : Mo. Eer. St.
245 (copy of a certified copy of a judgment, 1899, § 9109 (re-recordins; of records torn, etc. ;
both original and certified copy being destroyed, certified copies admissible) ; N. J. Gen. St. 1896,
admitted). Conveyances, § 181 (mutilated, torn, etc., records
' Add also the statutes cited iii/ra, note 12; may be proved by re-record or certified copv
1653, Faulconer's Trial, 5 How. St. Tr. 323, thereof); N. C. Code 1883, § 3662 (certified
349, 356 (a deposition being lost, but being copies of old records, etc., transcribed, admis-
recorded in Haberdasher's Hall, "the proper sible) ; Oh. Rev. St. 1898, §§ 906, 907, 907 6
court where it ought to remain," an examined (copy of copies of old records re-copied, admis-
copy of the record, and another copy in the sible) ; Pa. St. 1833, P. & L. Dig. Evid. 34 (cer-
House journals, were used, though objected to tified copies of official copies of defaced ancient
as " but a transcript of a transcript, a copy of a official papers in surveyor-general's office, receiv-
copy"); Ariz. Rev. St. 1887, § 2556 (certified able); St. 1844, P. &' L. Dig. Evid. 15 (copies
copies of transcribed defaced records, admissi- by register of probate of entries from certain
ble) ; 111. Rev. St. 1874, c. 124, § U (certified Orphans' Court papers, receivable "in the
copies of copies of lost enrolled laws in office of event of the loss or destruction " of such papers) ;
Secretary of State, admissible) ; Ind. Rev. St. Vt. St. 1894, § 3007 (certified transcript of town
1897, §§ 1255-1294 (copy of copy of lost records records, to be used as originals if the originals
restored, admissible) ; § 1343 (re-recorded muti- are lost or destroyed) ; W. Va. Code 1891,
lated, etc , records of Supreme Court, provable §§ 9-15 (provision made for equal effect to be
by clerk's certified copy under court sciil) ; Ky. given to records reproduced from prior lost or
Stats. 1899, §§ 1632-1634 (transcription of destroyed records) ; St. 1872-3, c. 164 (proceed-
torn, etc., records, equivalent to original) ; Md. ings of commissioners to establish contents of
Pub. G. L. Art. 35, § 51 (land-otiice commis- burnt records, usable when " no higher or better
sioner's certified copy under seal of an extract evidence can be had") ; St. 1895, c. 15 (county
from a deed transmitted by court clerk, admis- clerk's certified copy of re-recorded copy of lost
sible if deed and record are lost or destroyed) ; or destroyed record, admissible) ; Wis. Stats.
Mass. Pub. St. c. 37, §§ 8, 11 (certified copies of 1898, §§"661n-661o (certified copies of re-
certified copies of worn, etc., records, lawfully recorded lost records, admissible).
1556
§§ 1177-1282] COPY OF A COPY. § 1275
except that here it is still possible to copy directly from the original if it
could be discovered by search. But the object of such statutory provision
for recording is generally understood to be to facilitate the use of the record
for the purpose of obtaining copies, — the ordinary case of a recorded deed
being the typical one. Hence, whatever may be the rule as to exempting
from the production of the original deed {ante, § 1225), nevertheless, when-
ever a copy is receivable at all, — i. e. either after or without accounting for
the original — ,it may be a copy from the official record; the objection that
it is a mediate copy not being recognized as having force for-such a case :
1835, Story, J., in Winn v. Patterson, 9 Pet. 663, 677 : " It is certainly a common prac-
tice to produce in the custody of the clerk, under a subpoena duces tecum, the original
records of deeds duly recorded. But in point of law a copy from such record is admis-
sible in evidence upon the ground stated in Lynch v. Clerk,^ that where an original docu-
ment of a public nature would be evidence if produced, an immediate sworn copy thereof
is admissible in evidence; for as all persons have a right to the evidence which docu-
ments of a public nature afford, they might otherwise be required to be exhibited at
different places at the same time.''
1848, Stetson v. Gulliver, 2 Cush. 494, 499 : " When the book of the register would be
evidence, a certified copy is entitled to have the same effect; there being very little
ground to apprehend any mistake from that cause, and upon consideration of the great
public inconvenience which would result from having the books of record removed from
their proper custody and plafie of security."
This is universally conceded where the first copy is contained in an official
register (as with deeds of land usually), and is expressly declared in the
statutes of registration {ante, § 1225). The only arguable case seems to be
that of a copy required to be filed but not recorded in a book.^" It is upon
this principle also, or an extension of it, that a copy from an authorized re-
record in general {e.g. in another county) is receivable ; ^^ and this principle,
combined with that of (c^) above, admits copies of re-records of conveyances
9 3 Salk. 154. F. C. & L. Co. v. Gordon, 6 Or. 175, 177, semhle
" 1694, Smart v. Williams, Comb. 247 (a (copy of recorded document, admissible) ; 1900,
copy of a will recorded at the Prerogative Billiard v. Enders, 196 Pa. 587, 46 Atl. 839
Office, opposed " because it is but a copy of a (certified copy of a record-copy, required to be
copy; but the Court allowed it, for the entry filed, of a deed, admissible). Compare the cases
in the ecclesiastical books is tlie original quoad on foreign corporate articles, cited supra, note 6.
hoc; otherwise to make a title to lands by ^^ lU. Kev. St. c. 30, § 29 (certified copies of
devise " ; on the latter point, see the reason recorded certified copy of deed of lands in dif-
ante, § 1238); 1882, Martin v. Hall, 72 Ala. ferent counties, admissible); 1890, Collins v.
587 (certified copy of record of ofiicial bond, re- Vallean, 79 la. 626, 629, 43 N. W. 284, 44 N. W.
quired to be filed but not to be recorded, ex- 904 (re-record in another countv ; re-record ad-
cluded); 1875, Vance i'. Kohlberg, 50 Cal. 346, niitted) ; Mich. Comp. L. 1897,' §§ 8997, 8999,
349 (certified copy of ofiicially filed copy of arti- 9000, 9004, 9031 (certain rerecorded deeds,
cles of consolidation, receivable) ; Cat. C. C. P. provable by certified copy) ; Mo. Rev. St. 1899,
1872, § 1855 (for public or recorded documents, § 9li86 (deed affecting land in another county or
a copy of the record suflices ; for documents lost in new subdivided county); 1880, Crispen v.
or in opponent's possession, "either a copy or Hannavan, 72 Mo. 548, 556 (re-recorded deed
oral evidence") ; 1873, Toledo W. & W. R. Co. provable under statute by certified copy).
V. Chew, 67 HI. 378, 381 (corporate articles; No attempt is made to collect all such stat-
copy filed by law ; copy of this official record, utes here, because they are too numerous to be
admitted as copy of duplicate original) ; 1879, set forth accurately, and because they almost
Board r. May, 67 Ind. 561, 566 (certified copy always expressly make copies admissible. It
of official record of soldier's discharge, etc., ad- may be noted that the statutes cited under (/;>)
mitted) ; 1848, Stetson v. Gulliver, 2 Cush. 494 supra, providing for transcribed public records in
(see quotation supra); 1869, Goodrich v. Wes- jcnera/, will thus usually cover the present case
ton, 102 Mass. 362 (same) ; 1876, Willamette of deed-records.
1557
§ 1275 DOCUMENTARY ORIGINALS. [Chap. XXXIX
whose original records are destroyed, i. e. without requiring the copy to be
taken from the original conveyance though in existence.-^ The use of an
abstract from such a record, however, involves the principle of Completeness,
and may be better considered under that head {post, §§ 2105, 2107).
(c*) The fourth variety of situation occurs where the original is lost or
destroyed and the first copy is not an of&cial record and is not shown to be
lost or otherwise accounted for. This presents the only situation in which
a supposed strict rule of preference can practically make any difference to
the proponent's disadvantage. In the preceding cases there is virtually a
general agreement that the mediate copy can be used because the immediate
copy cannot be had ; and the question here is really, Must it be shown that
an immediate copy cannot be had ? Is the mediate copy receivable without
such a showing ? The objection to such a rule, as already noted {ante,
§ 1275), is the excessive burden of search and proof placed on the proponent,
— a burden disproportionate to the small risk of error involved in the use
of a mediate copy. As regards the state of the law, it is just here that the
place of really debatable and still unsettled doctrine is found. It has already
been seen (in paragraph a, above) that there is no support for the ex-
treme notion that a copy of a copy is absolutely inadmissible ; it has also
been seen, on the other hand (in paragraph 6, above) that a copy of a copy
is generally conceded not to be receivable so long as the original is acces-
sible for direct copying, and also (in paragraphs c, c^, c^, c', above) that by
general concession a copy of a copy is receivable when neither original nor
first copy are to be had. But none of these concessions answers the present
inquiry, namely. When the original is not accessible for a direct copy, but
the intermediate copy copied from (or some other pre-existing direct copy) is
by possibility available, must the latter be produced or accounted for ? The
orthodox English doctrine seems clearly to have laid down such a rule ; ^*
but, for the reasons above suggested, this unnecessarily strict requirement
has been rejected by a majority of American Courts,^* although in view of
^2 The statutes almost always expressly so " the true point is, Might not the plaintiff have
provide; the following list is not complete, and produced better evidence V) ; 1816, Liehmau
those cited supra {c') will also usually cover v. Pooley, 1 Starlc. 167 (letter; copy of a copy
this case of deed-records : Colo. Annot. Stats. left at home, excluded) ; 1838, Everinghara v.
1891, § 3752 (recorder's certified copy under Ronndell, 2 Moo. & Rob. 138, Alderson, B.
official seal of re-recorded documents whose (writ ; copy of a copy left at home by the wit-
original records are destroyed, admissible) ; ness, excluded) ; 1849, Schley v. Lyon, 6 Ga.
Fla. St. 1901, c. 4950 (certified copies of re- 530, 538 (witness copied from newspaper file,
recorded instruments or copies of deeds whose then copied the copy ; excluded, even though
records have been burnt, admissible) ; 111. Rev. files were unavailable) ; 1899, State v. Cohen,
St. 1874, c. 116, §§ 6-8, II, 22 (certified copies 108 la. 208, 78 N. W. 857 (copy of copy of
of conveyances, etc., or certified copies thereof, policy, excluded, the first copy not being shown
re-recorded to supply the loss of original records, unavailable) ; 1782, Morris v. Vanderen, 1 Dall.
admissible) ; Mo. Rev. St. 1899, § 929 (re- 64, 65 (copy of a. certificate of a survey,
recorded conveyances where records have been excluded).
destroyed by fire, admissible) ; Okl. St. 1895, c. "1871, Cameron », Peck, 37 Conn. 763
42 (provisions for recording, as equivalent to (admitting a copy of a press-copy of a letter) ;
the original, copies of lost records of deeds and 1860, Womack v. White, 30 Ga. 696, 700 (copy
other instruments). of sale-advertisement, admitted ; newspaper
" 1767, Tillard v. Shebbeare, 2 Wils. 366 itself not required) ; 1869, Goodrich is Weston,
(copy of a Bishop's institution-book entry, copy- 102 Mass. 362 (lost letter ; the copy of a letter-
ing a presentation ; the book itself called for ; press copy, the latter not accounted for, was
1558
§§ 1177-1282] COPY OF A COPY. § 1278
the numerous discriminations above noted, it can hardly be said that any
clear and settled doctrine exists except in a few jurisdictions.
2. Rulea as to Qualifications of Witness to Copy.
§ 1277. In general. A copy, merely as a piece of paper, has no standing
as evidence. In order even to be termed " copy," it must have the support
of a witness qualified to say that it represents the contents of the original
document :
Ante 1726, Chief Baron Gilbert, Evidence, 96 : "A copy of the deed must be proved by
a witness that compared it with the original; for there is no proof of the truth of the
copy, or that it hath any relation to the deed, unless there be somebody to prove its com-
parison with the original."
A copy, in short, is merely one mode (ante, § 799) of presenting the testi-
mony of a witness. The witness, therefore, must be qualified ; and thus
the general principles of witnesses' qualifications have here certain special
applications.
§ 1278. ■Witness to Copy must have Personal Kno^vledge of Original. A
general principle for witness' qualifications is that he must speak from per-
sonal observation of the event or thing to be testified to, and tbat therefore
in general a witness is not qualified who bases his testimony, not on his own
personal observation, but on imagination, or inference, or the hearsay of
others {ante, § 657). Upon this principle, then, a person whp proposes to
testify to the contents of a document, either by copy or otherwise, must have
read it. He may not describe its contents merely on the credit of what
another has told him it contains, even though his informant purports to
have read it aloud in his presence.
This rule is not always enforced by Courts ; and no doubt there are cases
in which the trial Court's discretion may properly allow exceptions. But
the general rule is a proper one, and is constantly invoked.^ Upon the same
accepted; "there are no degrees of legal dis- areinclnded: 1672, Peterborough ». Mordaunt,
tinetion in this class of evidence ") ; 1 890, 1 Mod. 94 (the witness to a copy, " being asked
Smith V. Brown, 151 id. 338, 340, 24 N. E. 31 whether he did see the very deed and compare
(two successive assignments of a judgment; the it with that copy, he answered in the negative,"
first being lost, the second was held not prefer- whereunon his testimony was disallowed) ; 1830,
able to a copy of the first; "if there are several R. v. Ilaworth, 4 C. & P 254, 256 (must have
sources of information of the same fact, it is read the original) ; 1896, Edisto Phos. Co. w.
not ordinarily necessary to show that all have Stanford, 112 Ala. 493, 20 So. 613 (the witness
been exhausted before secondary evidence can must have seen the document) ; 1901, Lester v.
be resorted to") ; 1821, Robertson v. Lynch, 18 Blackwell, 128 Ala. 143, 30 So. 663 (testimony
John. 451, 4.52, 457, sernble (copy of a letter- of persons who had heard adeedread, admitted) ;
book copy, receivable) ; 1830, Jackson v. Cole, 1853, Hooper v. Chisra, 13 Ark. 496,501 (one
4 Cow. 587, 595 (copy of a copy of appraisers' who had heard a bill of sale read, bv an unspeci-
certificate received, the original being lost) ; fied person ; insufficient )j, 1878, W eis - v. Tier-
1896, Howard v. Quattlebaum, 46 S. C. 95, 24 nan, 91 111. 27, 30 (a person who had heard or
S. E. 93 (a copy from a certified copy of a will, read that records were destroyed, excluded) ;
the will and the record having been destroyed 1848, Hodges v. Hodges, 2-Cush. 460 (one testi-
by fire, admitted) ; 1813, Duncan v. Blair, 2 fying from statements of the signer, excluded) ;
Overt. 213, 214 (the recorded entry of land 1846, Matthews w. Coalter, 9 Mo. 696, 699, 701
being lost, a copy of a warrant containing a (one who heard a paper read, allowed to testify
copy of the entry and a copy of an abstract of to the reading of contents, on the res gestae
the entries was received). principle) ; 1892, Rice v. Rice, — N. J. Eq. — , 25
^ In the following list the cases on both sides Atl. 321 (copy of a letter dictated, the writer
1559
§ 1278
DOCUMENTARY ORIGINALS.
[Chap. XXXIX
principle, testimony to contents by a foreigner or an illiterate person is ordi-
narily inadmissible.^ It is upon this principle that a copy of a copy, as
already noted {ante, § 1275, par. a), may be excluded where it does not ap-
pear that the intermediate document was really a copy.^
§ 1279. Same: Exception for Copy of Official Records; Cross-Reading
not iTecessary. To the preceding rule there is a classical and settled excep-
tion, covering the case of a copy made of an official record. Here it has never
been doubted that, if the witness "cross-read" with another person (usually
the record -keeper or his clerk) — i. e. held the copy and followed it as the
other read aloud the original, then followed the original while the other rea4
aloud the copy — , his testimony to the copy's correctness would be admis-
sible ; although it is obvious that his testimony is none the less based on
hearsay. The only objection here raised has been that there should at least
be a cross-reading, i. e. that a single co-reading, i. e. one or the other of the
above parts of the process, is insufficient ; but even this objection has been
by long tradition and practice almost unanimously repudiated.^
not seeing the original nor tlie dictator the
copj' ; received, with reservation that for formal
documents, essential to a claim, etc., cross-read-
ing, or the like, might be required) ; 1897,
Schubert Lodge v. Sclmbert Verein, 56 id. 78,
38 Atl. 347 (printed copy of the constitution of
a secret order; the State-lodge secretary re-
ceived it from the Supreme-lodge secretary ; the
former's testimony held sufficient) ; 1874, Nichols
V. Ivingdom Co., 56 N. Y. 618 (letter; even
though the letter is now destroyed, not provable
by one who has not read it); 187.5, Kdwards
t>. Noyes, 65 N. Y. 126, semble (same) ; 1880,
Nelson v. Whitfield, 82 N. C. 46 (a lost will
having been shown to be probated, its contents
were proved by others who had heard read
What purported to be the will or a copv) ; 1894,
Propst V. Mathls, 115 id. 526. 20 S. E. 710 (re-
jecting a witness who testified to the contents
of a lost will read over to him by the clerk;
distinguisliing Nelson v. Whitfielc, supra, be-
cause here the s.ime witness was expected to
suffice for both the contents and the fact of
probate) ; 1827, Piphen-. Lodge, 17 S. & K. 214,
221, 232 (a copy by a clerk of a deposition, not
clearly shown to have been based on the origi-
nal, receivable, per Tod, J., excluded, per
Gibson, C. J., and Rogers, J.) ; 1869, McGinniss.
V. Sawyer, 63 Pa. 266 (lost document ; witness
must have seen and read it) ; 1870, Coxe v.
England, 65 id. 212, 222 (one who saw a few
words of a letter whicli another read aloud, not
competent, because " her knowledge was hear-
say ") ; Tex. Rev. Civ. Stats. 1895, § 1905 (lost
will may be proved by one " who has heard it
read"); 1871, Johnson v. Bolton, 43 Vt. 30.3,
304 (testimony by an illiterate who heard an-
other person read a letter, excluded).
On the same principle it lins been held that
a bystander may not testify to the accuracy of a
report of the examination of an illiterate accused :
1834, K. V. Cliappell, 1 Moo. & R. 395 (Deuman,
L. C. J. : " For if tlie prisoner signs his name,
this implies that he can read, and that he has
read the examination and adopted it. But if
he has not signed it, or has only put his mark,
there are no grounds to infer that he can read
or that he knows the contents, and no person
can swear that the examination has been cor-
rectly read over to him except the person who
read it"). Accord: 1834, li. v. Richards, ib.
396, n., Patteson, J. Contra: 1835, R. v. Hope,
ib. 396, n., Patteson and Vaughau, JJ., for cer-
tain cases.
2 18l?4, Russell v. Brosseau, 65 Cal. 605, 607,
4 Pac. 643 (testimony to contents of notice by
one unable to read or write, excluded) ; 1870,
Cheek i: James, 2 Heisk. 170, 172 (a boy from
5 to 8 years old at the time of execution of a
bond, held not competent to testify to its con-
tents). Contra : 1833, Breen v. Richardson, 6
Colo. 605 (a foreigner, executing articles of
partnership read over to him, allowed to testify
to the contents of the destroyed original) ; 1872,
Morris o. Swaney, 7 Heisk. 591, 597 (contents
of a lost will allowed to be shown by illiterate
persons who had heard it read aloud by others ;
the analogy of examined records invoked, in
which cross- reading is not necessary).
^ That a parti/'s admission may suffice, though
not based on per.'ional knowledge, see ante,
§§ 1053, 1255.
What personal knowledge is required as to
the genuineness of the original from which the
copy was taken is dealt with post, § 2158.
For copies of telegrams, see post, § 2154.
"• 1808, Reidw. Margison, 1 Camp. 469 (Wood,
B. : " Had the witness who was called done all
that the defendant requires, still the other person
engaged in the examination might by possibility
have misread the copy as well as the original ;
and it would come to this, that to prove a copy
of a record there must always be two witnesses,
the man who read and the man who examined.
But this would be a great public inconvenience,
and there is no rule of law to require it ").
Accord: 1795, M'Neil i>. Perchard, 1 Esp. 264
(writ); 1808, Gyles v. Hill, 1 Camp. 471, note
1560
§§ 1177-1282]
COIlRECTISrESS OF COPIES.
§ 1280
§ 1280. Same ; Sundry Distinctions (Press-copies ; "Witness not the Copyist ;
Double Testimony ; Impression or Belief ; Spoliation). (1) Where a process
of copying — by Hotter-press or the like — is in its general operation fairly
accurate, it should be enough that the witness has gone through the process,
even though he has not afterwards verified the copy with the original.^ The
same principle should apply to photographic copies {ante, §§ 793, 79o).
(2) The witness to a copy need not be himself the transcriber or copyist.
If he has at some time compared the original and the alleged copy made by
another, he is qualified to verify the copy. If a period has elapsed between
his sight of the original and his sight of the copy, so that he is virtually
nothing more than a recollection-witness (ante, § 1266) — as where he is
first shown the alleged copy in court and is asked to say whether it is a
copy of the original as he remembers it — , then it is possible that he should
be regarded as an inferior witness to a copy-witness in the strict sense (as
noted ante, § 1268) ; but that he is at least a qualified witness has not been
doubted.^
(3) On the same principle, a paper may be shown a copy by the united
testimony of two persons neither of whom alone could testify to all the ele-
ments. The typical instance is that of paper A shown by one witness to be
a copy of a certain paper B, another witness then showing paper B to be
identical with the absent original in issue.^
(official record) ; 1809, Rolf v. Dart, 2 Taunt.
52 (judgment) ; 1833, Fyson v. Kemp, 6 C. & P.
72 (bill of costs) ; 1839, R. v. Hughes, 1 Cr. & D.
13 (record of conviction) ; 1807, Lynde v. Judd,
3 Day 499; 1852, Pickard v. Bailev, 26 N. H.
152, 169; 1830, Beardsley, Sen., in Hill v. Pack-
ard, 5 Wend. 375, 387 (" Copies of records are
to be proved, as other transcripts, by a witness
who has compared the copy line for line with
the original, or has examined the copy while
another person read the original") ; 1870, Krise
V. Neason, 66 Pa. 253, 260 (whether cross-read-
ing is necessary ; held not here, because the
reader was the agent of both parties); 1872,
Morris v. Swaney, 7 Heisk. 591, 597, ante, § 1278,
note 2. Contra: 1837, Slane Peerage Case, 5
CI. & F. 23, 42 (for public documents) ; 1892,
Rice «. Rice, — N. J. Eq. — , 25 Atl. 321, sem-
b'e, supra, note 1. Not clear: 1848, Crawford
and Lindsay Peerages, 2 H. L. C. 534, 545
(cross-reading of an ancient document in Latin;
both readers and the copyist called, on the facts).
That the personal knowledge of an officer
r/ioinq a certified copy is not required, see post,
■§§ 1635, 1677.
1 1842, Simpson v. Thornton, 2 Moo. & Rob.
433; 1890, Ford v. Cunningham, 87 Cal. 209,
210, 25 Pac. 403; Haw. Civil Laws 1897, § 1407
(" where any writing whatsoever shall have been
copied by means of any machine or press which
produces a facsimile impression or copy of such
writing," the copy suffices, on proof of being so
taken, " without any proof that such impression
or copy was compared with the said original ").
2 1833, R. V. Fursey, 6 C. & P. 81, 84 (for
proving notices, usual way is " to give a [alleged]
copy to the witness and ask if it is a copy of what
he saw") ; 1837, K. v. Murphy, 8 id. 297, 306,
307, 308, semble (testimony that a paper was
similar to one in evidence, admitted); 1875,
Lombard v. Johnson, 76 111. 599, 601 (the copyist
himself need not come, if another qualified
person can verify the copy) ; 1820, Barbour v.
Watts, 2 A. K. Marsh. 290 (one who had first
seen the copy some time after seeing the original ;
not decided); 1837, Dana v. Kemble, 19 Pick.
112, 116 (a paper in the handwriting of the
deceased writer of an original ; this paper testi-
fied to be of the same tenor as the original ; held
snfficient) ; 1851, Harvey v. Chouteau, 14 Mo.
587, 597 (the witness need not have the original
before him, if the correctness of the copy is
otherwise known to him) ; 1894, Nostrum v.
Halliday, 39 Nehr. 828, 833, 58 N. W. 429, semble
(copy of a plat not made by witness nor com-
pared with original, excluded) ; 1832, Smith v.
Axtell, 1 N. J. L. 494, 498 (" It has not been
compared ; the witnesses who state it to be a
copy, speak only from their recollection of the
original" ; admitted, though a copy in the strict
sense was held preferable); 1881, Kollock v.
Parcher, 52 Wis. 393, 400, 9 N. W. 67 (a defec-
tive official-copy may be verified by anotlier
person so as to be acknissible) ; 1895, Althouse
V. Jamestown, 91 id. 46, 64 N. W. 423 (the fact
of serving a particular notice being in existence,
and the testimony of the person who made the
copy offered not being available, the testimony
of one who had read the original and also the
copy was received).
* 1699, Medlicot v. Joyner, 2 Keble 546 (a
deed-copy " made by the witness to carry about
1361
§ 1280 DOCUMENTARY ORIGINALS. [Chap. XXXIX
(4) On the principle of knowledge (ante, § 658), it is not necessary that the
quality of a witness' knowledge or belief should be that of absolute certainty ;
his belief or impression, if fairly certain and definite, will suffice. But it is
of course difficult to draw the line precisely between the sufficient and the
insufficient degrees of positiveness.*
(5) A document's conteirts may be inferred from circumstantial evidence,
— in particular, from spoliation or suppression by the opponent (ante, § 291).
3. Rules depending on the Hearsay Rule and its Exceptions.
§ 1281. Witness must be called, unless by Exception to the Hearsay Rule
for Certified Copies, etc. A paper offered as a copy but not supported by
any person's testimony in Court is a hearsay — i. e. extrajudicial — statement,
obnoxious to the Hearsay rule (post, § 1362). Hence, some person must be
called to the stand to verify the paper as the copy that it purports to be. A
paper offered anonymously as a copy, or offered without calling some witness
to verify it, is inadmissible. This principle, never disputed, is, with occa-
sional lapses, constantly enforced in excluding supposed copies ; ^ though in
earlier times there was undoubtedly more laxity in this respect.^
But there are exceptions to the Hearsay rule, under which copies made by
specific classes of persons may be admitted. (1) Under the exception for
Official Statements (post, § 1677), copies made by officers lawfully authorized
to give copies — i. e. exemplified, certified, attested, or office copies — are re-
ceivable. (2) Upon a similar principle, statutory provision is often made for
the establishment, hy judicial proceedings, of a copy of a lost or destroyed docu-
ment (post, § 1682). (3) There is an early and limited exception, nowadays
not much invoked, allowing the use of recitals in one deed of the contents of
another as evidence of the latter's contents (post, § 1573). (4) There was
also once an exception recognized for ancient copies of ancient lost records
(post, § 1573). (5) There is an exception in favor of private reports oijudi-
to counsel, but never examined with the orig- that he could not swear to acenrany ; held
Inal," admitted, because " this is good evidence sufficient, opponent possessing the original);
as well .IS [i. e. together with] testimony of a 1886, Re Gazett, 35 Minn. 532, 533, 29 N. W.
witness of the contents of the deed burnt"); 347 (that a paper "seemed to be "a copy of a
1817, R. V. Watson, 2 Stark. 116, per Lord pleading, insufficient) ; see also ante, §658.
EUenborough, C. J. (" When you wish to prove * 1807, Fisher v. Samuda, 1 Camp. 190,
that a party has notice of the contents of a 192 (a copy made by the plaintiff himself, in-
newspaper, you show by one witness that he had competent from interest, excluded, Vieeause such
a copy of the paper and by another what the testimony "must be of a nature which the law
contents were") ; 1885, Huff u. Hall, 66 Mich. would receive in other instances ") ; 1819. Wills
456, 457, 23 N. W. 88 (lost letter ; B testifies v. M'Dole, 5 N. J. L. 501 (copy insufficiently
to a letter shown him by A ; A testifies that proved); 1885, Oregon S. S. Co. v. Otis, 100
the letter was one received from the defendant ; N. Y. 446, 453, 3 N. E. 486 (the writing de-
allowed) ; 1827, Bullitt v. Overfield, 2 JIo. 4 livered to the telegraph office being the original,
(copy verified by one witness for an original and destroyed, the transcript delivered to the
identified by another, admitted). That the \vit- sendee was taken as a copy, in the absence of
ness to an examined copy of a public record must any objection to its accuracy ; compare § 2154,
show that the document examined was really post) ; 1844, Kelly v. Craig, 5 Ired. 129, 131
the desired record, is dealt with under Authenti- (paper delivered by a clerk to a sheriff, purport-
cation {post, § 2168). ing to be a copy of the tax-list, excluded).
* 1844, State Bank v. Ensminger, 7 Blackf. ' 1707, Winne v. Lloyd, 2 Vern. 603 (copies
104, 108 (copy made by clerk in such a hurry by a deceased person admitted).
1562
§§ 1177-1282] PROVING THE COPY. § 1282
dal decisions in other jurisdictions {post, § 1703), and, by statute, for copies
certified by the clerks or other custodians of certain private documents such
as corporate records ( post, § 1683).
4. Sundry Principles.
§ 1282. Completeness of Copy; Abstracts. The general principle of
Completeness {post, §§ 2105-2111) requires that, where the terms of a docu-
ment are to be proved, the whole of the contents, whether in the original or
by copy, be presented to the tribunal. It is impracticable to separate from
the general treatment of that principle the specific rules applicable to the
proof of a document's contents, and the various questions are there dealt with ;
in particular, the questions whether the whole of a document must be con-
tained in the copy, and not a mere extract or an abstract, whether a copy
must be stated to have been " tritly " or " correctly " copied, and the like.
vol,. II.— 36 1563
§ 1285
BOOK I, PAET II, TITLE I.
[Chap. XL
Sub-title II : RULES OF TESTIMONLA.L PREFERENCE.
CHAPTER XL.
§ 1285. Nature and Kinds of Testimonial Preference.
Topic I: PROVISIONAL (OR CONDITIONAL) TESTIMONIAL
PREFERENCES.
§ 1286. General Nature and Policy of these Rules.
StJB-TOPio A . PEEFERENCE FOR AN ATTESTING WITNESS.
1287.
1288.
History.
Reason and Policy of the Rule.
(a) "Where the ezecution of any
document,"
§ 1290. Kind of Document covered by the
Rule ; at Common Law, all Documents were
included ; Statutory Modifications.
§1291. Documents Incidentally or "Collat-
erally" in Issue.
(6) " Farports to have been attested,"
§ 1292. Who is an Attesting Witness.
(c) "A party desiring to prove its
execution,"
§ 1293. Rule applies only in proving Execu-
tion, not in using the Document for Other
Purposes.
(d) "Against an opponent entitled in
the state of the issues to dispute
ezecution,"
§ 1294. Execution not disputable (1) because
of Estoppel or other rule of Substantive Law.
§ 1295. Execution not disputable (2) because
of rule of Pleading.
§ 1296. Execution not disputable (3) because
of Judicial Admission.
§ 1297. Execution not disputable (4) because
of Opponent's Claim under the Same Instru-
ment.
§ 1298. Execution disputable, and rule ap-
plicable, where the Opponent merely Produces
the Instrument, without Claiming under it.
(e) "Must, before using other evi-
dence,"
§ 1299. Attester preferred to any Third Per-
son, including the Maker of the Document.
§ 1300. Attester preferred to Opponent's
Extrajudicial Admissions.
§ 1301. Attester preferred to Opponent's Tes-
timony on the Stand,
(/) "Either produce the attester as a
^ritness,"
§ 1302. Attester need not Testify Favorably ;
Witness Denying or not Recollecting.
§ 1303. Same : Discriminations (Refreshing
Recollection ; Implied Attestation Clause ; Im-
peaching one's Own Witness, or one's Own
Attestation ; Illinois Rule admitting only At-
testing Witnesses in Probate).
§ 1304. Number of Attesters required to be
Called.
§ 1305. Same : Rule satisfied when One
Competent Witness testifies by Deposition or
Atfiilavit.
§ 130G. Same : When All Witnesses are una-
vailable in Person, One Attestation only need
be Authenticated.
(g) " Or show his testimony to be
unavailable,"
§ 1308. General Principle of Unavailability.
§ 1309. All the Attesters must be shown
Unavailable.
§ 1310. Statutory Enumerations of Causes of
Unavailability.
§ 1311. Causes of Unavailability : (1) Death ;
(2) Ancient Document.
g 1312. Same : (3) Absence from Jurisdiction.
§ 1313. Same : (4) Absence in Unknown
Parts.
§ 1314. Same : (5) Witness' Name Unknown,
through Loss or Illegibility of Document.
§ 1315. Same : (6) Illness or Infirmity ; (7)
Failure of Memory ; (8) Imprisonment.
§ 1316. Same : (9) Incompetency, through
Interest, Infamy, Insanity, Blindness, etc.
§ 1317. Same : (10) Refusal to Testify, Privi-
leged or Unprivileged.
§ 1318. Same : (11) Document proved by
Registry-Copy.
§ 1319. Same ; Summary.
(h) " And also authenticate his attesta-
tion unless it is not feasible."
§ 1320. If the Witness is Unavailable, must
his Signature be proved, or does it suffice to
prove the Maker's ?
§ 1321. Proof of Signature dispensed with,
where not Obtainable.
1564
§§ 1285-1321] TESTIMONIAL PREFERENCE. § 1286
§ 1285. Nature and Kinds of Testimonial Preference. In the preceding
Chapter has beeu examined that sort of preference which is accorded to the
original of a vrriting ; its production before the tribunal is preferred, if fea-
sible, instead of testimonial or circumstantial evidence about the contents.
The preference now to be examined is a preference for one kind of testimo-
nial evidence (i. e. one kind of witness) over another. The rules of prefer-
ence here are of two sorts, one less stringent than the other. By one sort
of preference, it is required that a particular witness or class of witnesses
be called before any other can be resorted to, so that the latter cannot be
used until the former is produced or is shown to be unavailable. This sort
of preference may be termed provisional (or conditional).^ By the other
sort, the preferred witness or class of witnesses is not only first required,
but if it is available, it is made the exclusive source of proof ; that is, if
the preferred witness is available, his testimony is taken as so trustworthy
that no other testimony to the same point is received, nor is his testimony
allowed to be shown incorrect. This sort of preference may be termed con-
clusive (or absolute)} The various rules of conditional preference are dealt
with in §§ 1286-1339 ; the rules of absolute preference in §§ 1345-1353.
They are few in number, and rest upon considerations peculiar to the case
of each one.
Topie I : Provisional (or Conditional) Testimonial Preferences.
§ 1286. General Nature and Policy of these Rules. The general notion of
preference which insists that a particular witness shall be called before an-
other can be called rests on the supposed excellent position of that particular
witness to obtain knowledge of the matter more accurately than any other
person. His opportunities of knowledge, it must be supposed, have been not
only better than those of others, but so much better that it would be a pal-
pable risking of injustice to proceed in the trial without endeavoring to obtain
him. Moreover, such a rule should be applied only where the class of wit-
nesses thus preferred can be designated with some precision and certainty ;
because the party required to call him must in fairness be able to know be-
forehand, in order to summon them, the person or persons to whom the rule
will be applied by the Court on the trial. Finally, such a rule obviously
assumes nothing as to the precise nature of the witness' testimony. He may,
on appearing, affirm or deny the existence of the fact in question ; he is re-
quired to be used, but without any assumption that he will say the one
thing or the other thing, and merely with the assumption that whatever he
can contribute will be worth hearing. In other words, such a rule is a rule
imposed by the law by way of insuring a supply of trustworthy testimony
which otherwise the partisan interests of either side might fail to furnish.
Now the situations in which these combined considerations apply must
necessarily be few. There are doubtless many classes of witnesses who
For the use of the phrase "best evidence" as applicable to this class of rules, see wnte, § 1174
1565
§ 1286 TESTIMONIAL PREFERENCE. [Chap. XL
might be supposed to have better opportunities of knowledge than others ;
but there are not many in which it can be securely assumed, for the purposes
of a fixed rule, that they have had opportunities so far in excess of others
that they must invariably and positively be utilized. Moreover, the precise
definition of such persons by specific rules is still less often feasible. Finally,
and most important of all, the cases in which the law needs, of its own
motion, and independently of the litigants' efforts, to insist upon their at-
tendance are decidedly few in number. The whole spirit of the Anglo-
American system of trials is to leave the search for evidence in the hands of
the parties themselves. Their interested zeal is regarded as sufficient to in-
sure a full and exhaustive marshalling of all the evidential data on either
side ; and this attitude of the law, whether abstractly wise or not, has so
thrown the parties upon their own efforts that in practice parties do exert
themselves as effectively as could be desired.' In fact, our system of parti-
san responsibility for the purveying of evidence, while it is marked by the
natural defects of partisanship, is at least more successful in the thorough
canvassing of all sources of evidence than any system of judicial responsi-
bility could be in this country, or (perhaps) than in any other country such
a system actually appears to be to-day. Under such conditions, then, the
cases might well be extremely few in which it would be necessary for the
law to step in and to insist, independently of the parties' probable efforts, on
the presence of a specific witness. Such indeed is the fact in oar law; for
these rules are extremely few.
In general, then, there may be assumed to be no place in our system of
evidence for rules of testimonial preference ; a few do exist ; but they exist
as exceptions to a general principle which leaves it to the efforts of the parties
to search for and to procure any witnesses who might be supposed to be
superior in testimonial equipment to others.^ Apart from these few definite
exceptions, there is no general principle that the "best evidence" must be
procured,^ in the sense that a specific witness, presumably better qualified
than other competent witnesses, must be produced or accounted for before
the others can be used :
1834, Slonj, J., in U. S. v. Gibert, 2 Sumner 19, 81 (refusing to require the calling of
one who saw a fire, in preference to one who saw it set) : " It appears to me that the
whole basis of the argument is founded upon a mistake of the meaning of the rule of law
as to the production of the best evidence. The rule is not applied to evidence of the same
nature and degree ; but it is applied to reject secondary and inferior evidence in proof of
a fact which leaves evidence of a higher and superior nature behind in the possession or
power of the party. Thus, if the party offers a copy of a paper in evidence, when he has
the original in his possession, the copy will be rejected, for the original is evidence of a
higher nature. . . . But the rule does not apply to several eye-witnesses testifying to the
1 Compare the infliieuoo of this spirit on sideratioii that the burden of showins; such a wit-
other niles {post, §§ 1847, 2251). ness unavailable should in fairness fall upon one
* It might be thought that, of possible consid- party rather than the other ; and these may be
orations leading to such exceptions, one might noticed as evidently having force in the main-
be the consideration that this preferred witness tenance of certain of the rules,
should be a person not likely to be known to one ' See ante, § 1174, for a further examination
of the parties ; and that another might be the con- of the fallacies of this ' ' best evidence " phrase.
' 15C6
§§ 1285-1321] ATTESTING WITNESS. § 1287
same facts or pavta of the same facts, for the testimony is all in the same degree, and
where there are several witnesses to the same facts, they may be proved by one only. All
need not be produced. If they are not produced, the evidence may be less satisfactory or
less conclusive, but still it is not incompetent."
1875, Campbell, J., in BlHott v. Van Buren, 33 Mich. 49, 52 (repudiating any preference
for a physician's testimony to an injured person's condition) : " The term ' best evidence '
is confined to cases where the law has divided testimony into primary and secondary ; and
there are no degrees of evidence, except where some docuraeut or other instrument exists
the contents of which should be proved, by an original rather than by other testimony
which is open to the danger of inaccuracy. But where living witnesses are placed on the
stand, one is in law on the same footing as another. If he can testify at all, he can testify
in the presence as well as in the absence of those who may be supposed wiser or more re-
liable. There are some questions on which some witnesses cannot testify at all, for want
of knowledge. No one can be allowed to prove what he has never learned, whether it be
ordinary or scientific facts. But one who can testify under any circumstances upon the
facts on which he is examined may do so as well where his superiors are to be found as
where he knows as much as any other."
It remains to examiae the few specific rules which appear in our law as
deviations from this general principloi
Sub-topic A : Preference foe an Attesting Witness.
§ 1287. History. The rule requiring the calling of a person who has
attested a deed by his subscription conies down to us as the survival of a
very early procedure. The connection by tradition is direct, though the
original rule belongs to an epoch wholly alien in its ideas of proof and trial.
Its history has been thus set forth : ^
1898, Professor James Bradley Thayer, Preliminary Treatise on Evidence, 502 : " [The
rule] has a clear and very old origin. Such persons belonged to that very ancient class of
transaction or business witnesses, running far back into the old Germanic law, who were
once the only sort of witnesses that could be compelled to come before a court. Their
allowing themselves to be called in and set down as attesting witnesses was understood
to be an assent in advance to such a compulsory summons. Proof by witnesses could
not be made by those who merely happened casually to know the fact. However exact
and full the knowledge of any person might be, he could not, in the old Germanic pro-
cedure, be called in court as a witness, unless he had been called at the time of the event
as a preappointed witness. It was a part of such a system and in accordance with such
a set of ideas that witnesses formally allowed their names to be written into deeds in large
numbers. When jury trial, or rather proof by jury, as it originally was, came in, the
old proof by witnesses was joined with it when the execution of the deed was denied ;
and the same process that summoned the twelve, summoned also these witnesses. The
phrase of the precept to the sheriff was summons duodecim (etc. etc.) cum aliis. The
presence of these witnesses was at first as necessary as that of the jury. Great delays
and embarrassments attended such a requirement where the number of witnesses might
be so great; the jury was cumbersome enough anyway. Accordingly, in 1318, the pres-
ence of the witnesses was made no longer absolutely necessary; they must still be sum-
moned, but the case might go on without them. After another century and a half the
process against the witness became no longer a necessity. It was not issued unless it
were called for. After still another century, in 1562-3, process against all kinds of wit-
1 Substantially the same account had been given, In 1808, by Chief Justice Kent, in Fo.x v. Reil,
3 John. 477.
1567
§ 1287 PREFEKENCE FOR ATTESTING WITNESS. [Chap. XL
nesses was allowed, requiring them to come in, not with the jury or as a part of the jury,
but to testify before them in open court, and then the old procedure of summoning such
witnesses with the jury seems to have died out ; [but they must still be summoned as
witnesses.] ... As late as the early part of the eighteenth century it was doubtful
whether a deed could be proved at all, if the attesting witnesses came in and denied it.
Half a century later, Lord Mansfield, while reluctantly yielding to what he stigmatized
as a captious objection that you must produce the witness, declared that 'It is a technical
rule that the subscribing witness must be produced; and it cannot be dispensed with
unless it appeared that his attendance could not be produced.' " ^
§ 1288. Reason and Policy of the Rule. This ancient rule thus continued
to be enforced long after the disappearance of the primitive system of trial
and the notions of proof in which it had its origin. By the end of the 1700s
{ante, § 8) rules of evidence began to be argued out and to be maintained or
repudiated according as they seemed to possess or to lack a reason for ex-
istence. What was the reason that sufficed to maintain this rule as a part of
the new and ratiocinative system of evidence that began to be formed by the
end of the 1700s ? Here is found considerable difference of opinion, — a dif-
ference natural enough in view of the fact that no sound reason could in truth
be furnished for the strict and entire perpetuation of the rule. Under such
circumstances, insufficient and inconsistent reasons were likely to be ad-
vanced by those who could not see the way to a radical departure from long
tradition.
(1) A favorite reason was that the parties to the document had agreed to
make the attester their witness to prove execution :
1815, Ellenborough, L. C. J., in R. v. Harringionrth, 4 M. & S. 350: "Inasmuch as
they are the plighted witnesses, the knowledge they have upon the subject is essential, and
if it can he procured must be forthcoming."
1851, Cresswell, J., in Gerapulo v. Wieler, 10 C. B. 690, 696 : "It is not on the ground
that his is the best evidence ; . . . but because he is the witness agreed upon between the
parties."
1853, Pollock, C. B., in Whynmn v. GarlJi, 8 Exch. 803 : " The attesting witness must
be called to prove the execution of a deed for this reason, that by an imperative rule
of law the parties are supposed to have agreed inter se that the deed shall not be given
in evidence without his being called to depose to the circumstances attending its
execution."!
The difficulty about this reason is that no such agreement can be implied,
particularly where attestation is required by law. Moreover, were such the
reason, the rule would not apply between others than the parties to the doc-
ument, — which is not the fact. Furthermore, this assumes that the oppo-
nent charged as obligor or maker is a party to the document, — which, if the
execution is denied, is an assumption of the very point in issue :
^ The function of the attesting docnmentary This feature of Gei-manio procedure was also
witness in the early Germanic system of proof is of great importance, in the history of our parol
set forth in the following works : 1892, Brunner, evidence rule, in relation to the use of the seal ;
Deutsche Rechtsgeschichte, I, 420-426 ; 1877, and it is therefore considered more particularly
Ficker, Beitrage zur Urkundenlehre, I, §§ 61 ff. ; post, § 2426.
1887, Posse, Die Lehre von Privaturkunden, 70 ; ^Accord: 1796, Grose, J., in Barnes v.
1889. Bresslau, Handbuch der Urkundenlehre, Trompowsky, 7 T. R. 265 ; 1826, McMurtry v.
I, 489, 790-814. Frank, 4 T. B. Monr. 39.
1568
§§ 1285-1321] POLICY OF THE EULE. § 1288
1807, Spencer, J., iii Hall v. PMps, 2 John. 451 : " The notion that the persons who
attest an instrument are agreed upon to be the only witnesses to prove it, is not conform-
able to the truth of transactions of this kind, and, to speak with all possible delicacy, is
an absurdity."
1895, Burket, J., in Garratl v. Hanshue, 53 Oh. 482, 42 N. E. 256: " Another reason
given for the rule is because the parties themselves, by selecting the witnesses, have mu-
tually agreed to rest upon their testimony in proof of the execution of the instrument
and of the circumstances which then took place, and because they know those facts which
are probably unknown to others. This supposed mutual agreement is a pure fiction,
and rarely, if ever, exists in fact. If in any case it has a real existence, and can be
shown, it may perhaps be enforced ; but the mere fiction is entitled to no weight and
to no respect."^
(2) Another reason, suggested almost as often, is that the opponent is enti-
tled to the henefit of cross-examining the attesting-witness as to the circum-
stances of execution ; or, put in another way, that the attester may not only
know more than some other person observing the execution, but may be able
to speak as to fraud, duress, or other matters of defence :
1779, Ashhurst, J., in Abbot v. Plumbe, 1 Doug. 216 : " [The opponent] would be deprived
of the benefit of cross examining him concerning the time of the execution of the bond,
which might be material."
1801, Alvanley, L. C. J., in Manners v. Postan, 4 Esp. 241: " The rule was founded on
the principle that there should be an investigation from the subscribing witness of what
took place at the time of the execution of the instrument."
1808, LeBlanc, J., in Call v. Dunning, 4 East 54 : "A fact may be known to the sub-
scribing witness not within the knowledge or recollection of the obligor, and he is
entitled to avail himself of all the knowledge of the subscribing witness relative to the
transaction."
The objections to this reason are numerous. First, it is inconsistent with the
rule itself ; for the rule applies even where fraud, duress, and time are not
in issue, and even where the maker himself is competent as a witness. Again,
the attester is in practice not usually a person who knows anything about
the circumstances preceding the document's execution, or knows more than
any other person who by being present would be a qualified witness. Finally,
if the witness does possess special knowledge about some affirmative issui?,
the opponent is the proper person to call the witness, if he desires him.
This reason for the rule, then, is no more capable of defence than the first.^
(3) Has the rule, then, no justification in policy ? It certainly has none,
in its original broad form. But in most jurisdictions it has by statute been
limited to documents required by law to be attested (post, § 1290) ; and in
this shape it seems to be entirely justifiable. In the first place, the attesta-
tion is in such cases required by law as a special precaution against f orgety ; *
2 Accord : 1834, Parker, J., in Famsworth post, § 1290, objecting to the scope of the rule as
V, Briggs, 6 N. H. 561, 565. applicable to documents not required by law to
' See some of these objections set forth in be attested. The great critic of our evidence
the following opinions: 1834, Parker, J., in system has also had his say against the rule:
Farnsworth v. Briggs, 6 N. H. 561, 565 ; 1895, 1827, Bentham, Kationale of Judicial Evidence,
Burket, J., in Garratt v. Hanshue, 53 Oh. 482, b. VII, c. VI (Bowring's ed., vol. VII, p. 190).
42 N. E. 256. See, further, the reasons of the * See the quotations post, § 1304.
Common Law Procedure Commissioners, quoted
1569
§ 1288 PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
thus the attestation itself must in any case be proved as an element in the
validity of the document, and there seems to be no special hardship in ob-
taining the witness rather than in obtaining evidence of his signature. In
the next place, such documents are, in most jurisdictions, wills of deceased
persons and deeds of illiterate persons ; for such documents, the maker him-
self being either deceased or not acquainted with writings, the attester's tes-
timony is almost inevitably the most desirable and most trustworthy source
of information as to the fact of execution ; moreover, it is in such cases that
the defences of fraud or undue influence are most likely to be made, and here
also the attester's testimony is likely to be of use and ought to be obtained
if possible. Still further, in these and all other cases where attestation is
legally required, the situation is one in which by hypothesis the risk of a
false document is serious, and the determination ought not to be left to the
unsupported denial of the alleged maker (even assuming him competent and
testifying). Finally, between the two parties, the burden of producing the
witness or proving him unavailable ought fairly to be placed upon the
party of whose case it is a part to prove the due execution and attestation.
For these reasons, it seems unwise to dispense with the rule to any further
extent.
The rule at common law may be thus stated :
Rule : (a) Where the execution of any document (b) purports to have been
attested, (c) a party desiring to prove its execution, (d) against an opponent
entitled in the state of the issues to dispute execution, (e) must, before using
other evidence, (f ) either produce the attester as a ivitness, (g) or show his testi-
mony to be unavailable (h) and also authenticate his attestation unless it is not
feasible.
Such is the scope of the rule as it obtained in its orthodox and broadest
form. This broadest form, however, was not adopted or maintained in all
jurisdictions ; and certain modifications, now more or less common, are to be
noticed under the various parts.
(a) " Where the Execution of any Document "
§ 1290. Kind of Document covered by the Rule; at Common Law, all Docu-
ments were included ; Statutory Modifications. At common law the rule
was applied to all kinds of documents whatever, when purporting to bear an
attestation, whether or not the document was sealed, whether or not it was
in the nature of a specialty, and whether or not the attestation was required
by law as an element of the document's validity. ^
But by the beginning of the 1800s the unnecessary hardship and the mere
1 The American rulings are placed in the the attendance of the attesting witness, not upon
next note ; there was in England no question as the testimony he is likely to give"); 1817,
to this proposition: 1810, Wardell v. Fermour, Higgs v. Dixon, 2 Stark. 180 (applied to a war-
2 Camp. 282, 284 (refusing to distinguish be- rant to distrain) ; 1848, Streeter o. Bartlett, 5
tween a lease-assignment and a post-obit bond ; C. B. 562 (applied to the proof in the Common
Ellenborough, L. 0. J., said it did not depend Pleas of a debtor's schedule required by the In-
on "the nature of the deed to be proved; it solvent Debtors' Court to be attested, but not
must depend upon the possibility of procuring by the insolvency-statute).
1570
§§ 1285-1321] KIND OF DOCUMENT. § 1290
technicality of the rule in this broadness of scope began to be recognized. It
may be supposed, too, that the then increasing resort to handwriting-testi-
mony {post, § 1993) made it easier to rely less upon attesting witnesses. In
1853, the objections to it found effective expression in the following passage
in the Eeport of a Parliamentary Commission notable for the authoritative
character of its members :
1853, Common Law Procedure Commission (Jervis, Martin, Walton, Bramwell, Willes,
Cockburn), Second Report, 23 : " We do not purpose to meddle with the preappointed
evidence ot execution required either by the Legislature or by persons creating powers ;
but we thinli it deserving of serious con'^ideration whether this formal proof of the exe-
cution of written documents may not in other cases be dispensed with, where the execu-
tion is either admitted or capable of other proof. The principle on which the necessity
for producing the attesting witness rests is that the witness is supposed to be conversant
with all the circumstances under which the deed was executed. But it is notorious that
in practice the attesting witness in the majority of instances knows nothing of the trans-
action ; the instrument having been prepared, a clerk, a servant, or a neighbor is called
in to attest it. Added to which, as parol testimony is not admitted to contradict or vary
the terms of a written instrument, the occasions are few indeed where the evidence of
the attesting witness goes further than to prove the execution of the writing. On the
other hand, the necessity of calling the attesting witness, where the execution of the
document is not the real matter in dispute and where there are no concomitant circum-
stances to be inquired into, is often attended with difficulty and expense, and sometimes
leads to the defeat of justice. Cases have occurred where, in tracing a title, numerous
witnesses from distant parts have been rendered necessary to prove the formal execution
of deeds, though their execution was not really in dispute and the handwriting to all
might have been proved by a single witness, and doubtless would have been admitted but
for the difficulty which it was thought would by the existing rule be thrown in the way
of the party alleging title. It also sometimes happens in the course of a cause that the
adversary's case renders it necessary to give in evidence a document which it was not
supposed would be required, or a document is produced by a witness on his subpoena
which turns out, contrary to the expectation of the party requiring it, to be attested ; the
attesting witness is not at hand ; yet the signature of the party might be easily proved,
or the witness producing the instrument may have heard him admit the execution ; never-
theless the document cannot be received, and the party requiring it loses his cause.
When the genuineness of the document is not really in dispute, it is clear that the parties
ought not to be limited to any particular witness to prove the execution. When the
genuineness is in dispute, the party producing it will be sure to call the attesting witness,
as the absence of the latter would thi'ow the greatest discredit on the instrument. We
therefore recommend that, except in cases where the evidence of attestation is requisite
to the validity of the instrument, an attesting witness need not be called." ^
Accordingly, in 1854, Ungland restricted the rule thereafter to documents
required by law to be attested, and this statute has been adopted in Canada
also.^
2 Compare the arguments set forth ante, § 526 (the attesting witness need not be called
§ 1288. for shipping documents required by this Act to
= England: 1854, St. 17 & 18 Vict. c. 125, be attested) ; 1886, Me Eice, L. R. 32 Ch. D.
§ 26 ("It shall not be necessary to prove by the 35 (appointment by attested deed, attestation
attesting witness any instrument to the validity not being requisite to validity ; Cotton, L. J. :
of which attestation is not requisite ; and such "In petitions in lunacy and in chancery, it has
instrument may be proved by admission, or been usual since the Act to require proof by the
otherwise, as if there had been no attesting wit- attesting witness ") ; Canada: the following
nesB thereto ") ; 1854, St. 17 & 18 Viot. c. 104, statutes follow the wording of Eng. St. 1854,
1571
§ 1290
PEEFEEEKCE FOR ATTESTING WITNESS. [Chap. XL
In the United States, the common-law doctrine was recognized to have
the same scope as in England ; except that by a few Courts it was confined
to documents under seal. In many jurisdictions, however, a statutory restric-
tion has been enacted similar to that of England.* Under such restrictions.
c. 125 ; Dom. Grim. Code, 1892, § 696 ; B. C.
Rev. St. 1897, 0. 71, § 44 ; N. Br. Consol. St.
1877, c. 46, § 23 ; Newf. Consol. St. 1892, c. 57,
§ 21 ; N. Se. Rev. St. 1900, c. 163, § 32 ; Out.
Rev. St. 1897, c. 73, § 54 ; P. E. I. St. 1889,
c. 9, § 19.
* Where no rulings or statutes are found, the
Court would presumably apply the orthodox rule.
In the following list, the statute in each jurisdic-
tion is placed last, though in time the statute
may have preceded some of the judicial rulings.
In some jurisdictions (e. g. South Carolina) the
statute does not go as far in restriction as the
English statute ; in others {e. g. Florida and Cali-
fornia) the statute has in appearance gone far-
ther: Ala: 1881, Ellerson v. State, 69 Ala. 1, 3
(applies to "every private writing"; here, a
contract for cropping) ; 1896, Martin v. Mayer,
112 id. 620, 20 So. 963 (bill of sale) ; 1897,
Jones V. State, 113 id. 95, 21 So. 229 (mortgage
of personalty) ; 1899, Stamphill v. Bullen, 121
id. 250, 25 So. 928 (proof by joint maker, not
suificient under statute for co-maker's execu-
tion) ; ArJc. : 1843, Brock v. Saxton, 5 Ark.
708 (applicable to all attested documents) ;
Cal. : C. C. P. 1872, § 1940 ("any writing" is
provable either bj' one seeing the execution, or by
evidence of the maker's hand, or by a subscribing
witness ; but this clearly was not intended to
override 0. 0. P. § 1315, quoted post, § 1310) ;
Fla. : Rev. St. 1892, § 1808 (probate may be
granted on the oath of the executor, or if he is
interested, " of any other credible person having
no interest under the will, that he verily be-
lieves the writing exhibited " to be the testator's
last will) ; Ga. : 1878, Davis v. Alston, 61 Ga.
227 (a written contract for the sale of land ;
assimilated to a deed, and tested by "the rule
of law applicable to deeds," i. e. about preferred
witnesses) ; 1895, Giannone v. Fleetwood, 93
id. 491, 21 S. E. 76 (applicable to all attested
documents) ; Saw. : Civil Laws, 1897, § 1425
(like Eng. St. 1854, c. 125) ; Ida. : Rev. St.
1887, § 6993 (like Cal. C. C. P. § 1940) ; Ml. :
Rev. St. 1874, c. 51, § 51 (whenever any instru-
ment "not required by law to be attested by
a subscribing witness" is offered in a civil
cause, "and the same shall appear to have been
so attested, and it shall become necessary to
prove the execution of any such deed or other
writing otherwise than as now provided by law,
it shall not be necessary to prove the execution
of the same by a subscribing witness to the ex-
clusion of other evidence, but the execution of
such instrument may be proved by secondary
evidence without producing or accounting for
the absence of the subscribing witness or wit-
nesses"); Md.: Pub. Gen. L. 1888, Art. 35,
§ 6 (attested document's execution may be proved
as if not attested, except for proof of will) ;
Mass. : 1839, Valentine v. Piper, 22 Pick. 85
(rule applicable to "an instrument under seal
1572
and commonly requiring attesting witnesses ") ;
St. 1897, 0. 386, Rev. L. 1902, v;. 175, § 70
("The signature to an attested instrument or
writing, except a will, may be proved in the
same manner as if it were not attested ") ; Mich. :
Comp. L. 1897, § 10199 (an attested instrument
may be proved without calling the subscribing
witness, "except in cases of written instruments
to the validity of which one or more subscribing
witnesses are required by law") ; N. Y. : 1829,
Henry v. Bishop, 2 Wend. 575 (does not apply
"to instruments not under seal, or at least in
regard to negotiable paper ") ; 1829, Jackson v.
Rice, 3 id. 180, 183 (applicable to instruments
under seal) ; Laws 1883, c. 195, § 1 (the sub-
scribing witness need not be called, except for
instruments to the validity of which a subscrib-
ing witness is necessary) ; N. D. : 1897, Bryn-
jolfson V. Elev. Co., 6 N. D. 450, 71 N. W. 555
(holding the rale applicable to a chattel mort-
gage required to be attested under Rev. Code
1895, § 4738 ; but not clearly declaring how far
R. C. §§ 3579, 3581, 3582, providing for proof
before a recorder of deeds, abrogate the common-
law doctrine) ; St. 1897, c. 59, Rev. Code 1899,
§ 3888a ("In proving any written instrument
or contract to which there is a subscribing wit-
ness, or to which there are two or more sub-
scribing witnesses, it shall not be necessary to
call said witness or any one of two or more of
said subscribing witnesses ; but the in.strument
or contract may be proved, except for purposes
of recording the same, by the same evidence by
which an instrument or contract to which there
is no subscribing witness may be proved ") ;
1901, McManus v. Commow, 10 N. D. 340, 87
N. W. 9 (applying § 3888 a, Kev. Code 1899) ;
Oh. : 1877, Warner it. R. Co., 31 Oh. St. 265,
270 (applied to a contract) ; Or. : 1899, Hannan v.
Greenfield, 36 Or. 97, 58 Pac. 888 (rule applied
to agency-contract) ; C. C. P. 1892, § 761 (com-
mon-law rule maintained) ; R. I. : Gen. L. 1896,
c. 244, § 43 (calling not required for "any in-
strument to the validity of which attestation is
not requisite " ; proof may be made " as if there
had been no attesting witness thereto ") ; S. 0. :
1804, Madden v. Burris, 1 Brev. 387 (St. 1802,
applied to an indorsement on a note) ; 1806,
Gervais v. Baird, 2 Brev. 37 (same applied to
signature by mark) ; 1807, Paisley v. Snipes,
2 Brev. 200 (St. 1802 ; the maker's signature
suffices, even though a mark, if distinguish-
able) ; 1810, Shiver v. Johnson, ib. 397 (maker's
peculiarity of mark, sufficient for St. 1802) ;
1825, Townsend v. Covington, 3 McC. 219 (St.
1802 does hot apply to a written agreement for
sale of land not under seal) ; 1827, Edgar v.
Brown, 4 McO. 91 (bond executed in another
State; St. 1802 applied); 1840, Blackman v.
Stogner, Cheves Eq. 175 (St. 1802 applied in
Chancery suit) ; 1841, Tramraell v. Roberts,
1 MoM. 305 (here the defendant made oath,
§§ 1285-1321] KIND OF DOCUMENT. § 1291
the rule comes into application chiefly for wills and for illiterates' deeds,
and, in England, for powers of appointment. Moreover, even where the
common-law rule obtains in strictness, the principle {post, § 1318), which
dispenses with it for proof by copies of registered instruments, relieves
nowadays in most instances from its harshness.
In order to apprehend the precise scope of the statutory rule, it is there-
fore in most jurisdictions necessary to note what documents are required by
law to be attested as an element of their validity ; but this is a matter of
substantive law, not within the present purview. From such statutes, how-
ever, three special kinds of statutes should be distinguished. (1) A statute
(as in Pennsylvania) which prescribes merely that a document shall be
"proved" by (any) two or more witnesses involves a rule of Quantity (dealt
with post, §§ 2048, 2049), and not a rule of preference ; i. e. any two or more
competent witnesses suffice, and there is therefore no preference for attesting
witnesses above others.^ (2) A statute providing that documents presented
for registration must be " proved " to the registrar by the maker's acknowl-
edgment or the statement of an attesting witness does not in itself concern
the mode of proof before a judicial tribunal, but only the conditions prece-
dent to lawful registration, and does not make attestation a necessary element
of validity so as to affect the application of the present rule.^ (3) The rule
for proof of nuncupative wills by persons present involves both a rule of
Preference and a rule of Quantity ; but is better examined under the latter
head (post, § 2050).
§ 1291. Documents Incidentally or " Collaterally " in Issue. Where the_
and the exemption of St. 1802 did not apply) ; ("written wills with witnesses thereto," if not
1902, Swancey v. Parrish, 62 S. C. 240, 40 S. E. contested, are required to be proved by "at least
554, semble (the Court inclined to hold the rule one of the subscribing witnesses, if living " ; if
not applicable to documents not requiring attes- contested, every will, " written or nuncupative,"
tation ; here, a chattel mortgage); St. 1731, by " all the living witnesses, if to be found, and
Gen. St. 1882, c. 86, §§ 2226, 2227, Eev. St. by such other persons as may be produced to
1893, §§ 2362, 2363, Code 1902, §§ 2898, 2899 support it"); Fa..- 1794, Turner, ji. Strip, 1
(deeds, bonds, etc., attested as proved before Wash. 319, 322 (proof of deed need not be by
a mayor, governor, or notaiy of a domestic or subscribing witness, under St. 1748) ; Wis. :
foreign State, receivable "as if the witnesses to 1846, Cariington v. Eastman, 1 Pinney 650, 656
such deeds were produced and proved the same (rule applied to a receipt).
viva voce " ; with limitation as to claims against ' 1784, Hight v. Wilson, 1 Dall. 94 (it is not
residents of this State, conditioned on "such necessary "that the proof of the will should be
foreign country " according similar treatment); made by those who subscribed as witnesses,"
St. 1802, Gen. St. 1882, c. 86, §§ 2213, 2214, under the Act of 1705 requiring wills to be
Rev. St. 1893, §§ 2348, 2349, Code 1902, §§ 2884, "proved by two or more credible witnesses.
("The absence of a witness to a bond or upon tlieir solemn affirmation, or by other legal
note" shall not be cause for postponement, proof"); 1788, Lewis v. Maris, ib. 278, 288,
"but the signature to such bond or note may semble (same) ; 1868, Carson's Appeal, 59 Pa.
he proved by other testimony," unless the 493, 496 (same ; under St. 1833) ; see also post,
opponent expressly disputes its genuineness) ; § 1304.
Tenn. : 1834, Suggett v. Kitchell, 6 Yerg. 425, A statute, however, providing for both
428 (will of personalty ; subscribing witnesses, "proving'.' and attesting does involve also a
or at least more than one, need not be called) ; rule of- preference for the attesters : 1815, Clarke
1850, Moore ». Steele, 10 Humph. 562, 564, v. Bartlett, 4 Bibb 201 (statute requiring manu-
semble (subscribing witnesses to a will of per- missions to be "attested and proved by two
sonalty not preferred) ; 1850, Jones v. Arter- witnesses "; held, that the two proving it must
burn, 11 id. 97, 101 (where there are in fact be the two attesting it).
subscribing witnesses to a will of personalty, • For the exemption from the rule in the
the rules of preferred witnesses are to be ap- case of proof by copies of a registered deed, see
plied) ; St. 1789, c. 23, § 1, Code 1896, § 3904 post, § 1318.
1573
§ 1291 PREFEEENCE FOE ATTESTING WITNESS. [Chap. XL
document whose execution is to he proved is not a document necessarily in-
volved in the pleadings, but is a minor document coming incidentally into
issue in the course of the details of proof, there is much reason in dispensing
with the rule. In the first place, the document is not of such importance as
to call for the rigorous precaution of the rule ; and secondly, it is not pos-
sible for the proponent to anticipate every minor turn in the course of the
proof, and he may thus without fault be taken by surprise and be unprepared
with the attester and yet otherwise able to make sufficient proof.
This limitation to the rule was never recognized in England ; ^ but in the
United States it has found frequent judicial support :
1813, Brackenridge, J., in Heckert v. Haine, 6 Binn. 16, 20 (here the plaintifE wished
to prove the receipt of money from A, by the defendant's intestate for the use of the
plaintifE, the payor A having taken an attested receipt) ; " The receipt is a matter col-
lateral to his case and not directly in issue. . . . [The witness] could not legally be
supposed to be in his keeping, as a witness called by a party to subscribe a writing is
supposed to be. ... In the case of a third person, even where it is the foundation of a
suit and comes in collaterally, I do not see the reason. ... I would then restrain the rule
to a case where the execution of a wi'iting is directly in issue, unless notice shall have
been given that it was material to have this proof. . . . Coming in collaterally, it would
be taking a party by surprise to render it necessary to produce the subscribing witness."
1845, Gilchrist, J., in Band v. Dodge, 17 N. H. 343, 357 : " When one not a party or
privy to the contract, nor claiming any benefit, or exemption from the fulfilment of its
exigencies or the violation of its terms, has occasion for a collateral purpose to show that
such a contract existed, . . . when the existence of the writing is of no consequence or
significance but as a part of the res gestm which a stranger seeks to prove and to charac-
terize with reference to his own rights, then the reason of the rule entirely fails and the
rule itself has no application."
Accordingly, in many jurisdictions the rule is not applied in such cases.^
^ 1791, Breton v. Cope, Peake 30 (rule ap- laterally material to the case ") ; Ky. : 1816,
plied to a deed cancelled and offered oDly as Brashear v. Burton, 4 Bibb 442 (title to per-
containing an admission) ; 1801, Manners v. sonalty ; bill of sale incidentally in chain of
Postan, 4 Esp. 239 (action for penalties for usury ; title ; rule not enforced) ; Me. : 1830, Drew v.
in proving the usury, an attested warrant of at- Wadleigh, 7 Greenl. 94 (rule not applied to docu-
torney, held subject to the rule). ment used to discredit a witness as contain-
^ Accord: Ala. : 1881, EUerson v. State, 69 ing an inconsistent statement) ; 1841, Avers o.
Ala. 1, 3 (indictment for removing personal Hewitt, 1 Appl. 281, 285 (if it is a document
property subject to lien; witness to contract " wholly iwier aZias, under whom neither party
creating lien required to be called) ; 1892, can claim to deduce any right, title, or interest
Steiner v. Trainum, 98 Ala. 315, 318, 13 So. 365 to himself," the rule does not apply ; as here, to
(trover for a horse ; note given at the sale ; a bill of sale corroborating a witness' testimony
exempted) ; 1892, Lavrette v. Holcombe, ib. to a third person's insolvency) ; 1845, Pullen v.
503, 510 (same; affidavit); Ga.: 1890, Hudson Hutchinson, 12 Shepl 249, 253 (the preceding
V. Puett, 86 Ga. 341, 12 S. E. 640 (claim for case approved ; here the rule was held applicable
rent ; to show reasonable value, a contract of to a bill of sale to the defendant affecting his
lease of same property to another, held not col- claim) ; Mich. : 1880, Hess v. Griggs, 43 Mich,
lateral); 1893, Giannone v. Fleetwood, 93 id. 397, 399, 5 N. W. 427 (plaintiff in replevin, rest-
491, 493, 21 S. E. 76 (execution on property ing on possession under a contract with a tliird
claimed under mortgage ; bill of sale used to re- person by the defendant ; rule applied) ; N. H. :
but evidence of fraud, held not collateral); 1895, 1845, Rand v. Dodge, 17 N. H. 343, 367 (rule
MeVicker v. Conkle, 96 id. 584, 595, 24 S. E. not applied to a contract making G. the agent of
23 (rule not applicable to document offered only an ancestor or to do acts of prescriptive posses-
as standaril for comparison of hands); 1897, sion; see quotation SMpra) ; Pa.: 1818, Heckert
Summerour v. Felker, 102 id. 254, 29 S. E. 448 v. Haine, 6 Binn. 16, 20 (see quotation supra) ;
(action for rent ; note given for the rent, not Tenn. : 1874, Demonibreun v. Walker, 4 Baxt.
collateral) ; Code 1895, § 5244 (production not 199 (to rebut a contention that the will under
necessary if paper is " only incidentally or col- which the plaintiff claimed was procured by un-
1574
§§ 1285-1321]
KIND OF DOCUMENT.
1292
The precise terms of this limitation are not uniformly defined, and are dif-
ficult to define ; the trial judge's determination should be allowed to control.
The term " collateral," often used, is elusive and unsatisfactory ; and it is
sometimes mistakenly employed to designate the principle of certain other
cases (post, § 1293), where the rule is also not applied.
(h) " Purports to have been Attested."
§ 1292. Who is an Attesting Witness. The notion of an attesting or sub-
scribing witness is that of a person who, at the request or with the consent
of the maker, places his name on the document for the purpose of making
thereby an implied^ or expressed statement that the document was then
known by him to have been executed by the purporting maker.^
(1) In the first place, then, a person who, though he saw the execution, and
though his name is on the document, did not write it himself, is not an at-
testing witness, because he did not in fact make the attestation.*
(2) For the same reason, a fictitious person whose name is signed is not an
attesting witness.*
(3) Again, an officer, whose signature is required by law or by rule of
Court to give validity to a document or to enable it to be filed for a specific
purpose, is not an attesting witness,^ because he signs for a different purpose ;
due influence, the plaintifife offered a former will
of a similar tenor ; held, that the role did not
apply, where a paper " comes incidentally in
question," as here); 1874, Henly v. Hemming,
7 id. 524 (rule not applicable to a bill of sale of
goods sued for in replevin) ; FZ. .• 1849, Curtis
V. Belknap, 21 Vt. 433 (the plaintiff was hired
by T. to perform work, but T. abandoned the
contract ; the defendant then hired the plaintiff
to complete the work at the same prices ; held,
the rule did not apply to the writing between T.
and the plaintiff, which ' ' was only incidentally
in question," and of which " the parties to his
contract had neyer constituted the subscrib-
ing witness . . . the exclusive witness of their
contract ").
OmUra: 1826, Roberts v. Tennell, 3 T. B.
Monr. 247, 250 ; 1831, Goodall v. Goodall, 5 J.
J. M. 596, 598 ; 1871, Kalmes v. Gerrish, 7 Nev.
31, 34. mdeoided: 1857, Com. v. Castles,
9 Gray 121 (" collaterally or incidentally " ; left
undecided).
. Distinguish the cases cited post, § 1293.
* A clause expressly using words of attesta-
tion is unnecessary, if the real purpose of signing
was to attest ; 1848, Chaplain v. Briscoe, 11
Sm. & M. 372, 379, 382 (persons signing in the
usual place, but not named as witnesses, required
to be called) ; and cases cited ^os<, § 1611.
* Distinguish the question of substantive law
whether the attestation, as an element in the
vnlidity of a docu/ment reqvured to be attested,
suffices under that substantive law. See for
examples : 1835, Doe v. Burdett, 4 A. & E. 1
(under what circumstances a general attestation
is sufficient) ; 1855, Clay v. Holbert, 14 Tex.
189, 200.
1575
Whether a person signing may under the
"parol evidence" rule show that his intention
was merely to attest and not to be an obligor is a
different question (post, § 2419).
3 1843, Cussons v. Skinner, 11 M. & W. 161,
168 (the attesting witness' name was written by
another person in pencil ; held, not necessary to
call him ; Abinger, L. 0. B. : "It is not the
mere presence of a person at the time of the ex-
ecution of an instrument that makes him an
attesting witness ; for if five hundred persons
were, if they do not sign as attesting witnesses,
you are not bound to call one of them ") ; 1816,
Jackson v. Lewis, 13 John. 504 (signature of a
second witness by the first, treated as if attested
by one only) ; 1814, Allen v. Martin, 1 Law
Eepos. N. C. 373 (the maker had himself written
the witness' name ; rule not applicable).
The primitive notion of an attestation was
quite otherwise, under theGennauic system of
proof, by which a person might write the names
of any number of his absent friends to his deed
and get their consent afterwards ; "a witness
to a deed, according to the popular conception,
was not necessarily one who had seen it exe-
cuted, but one who was willing to give it credit
by his name " ; Thayer, l^reliminary Treatise on
Evidenc«, 98, citing instances ; 1543, Kolfe v.
Hampden, Dyer 53 b ; and see another instance,
since published, in the Selden Society's Select
Civil Pleas, I, No. 76 ; see also the accounts in
the German writers cited ante, § 1287, particu-
larly Bresslau, pp. 536-538, 548, 790-814.
* 1791, Fasset v. Brown, Peake 23 ; 1805,
Burrowes v. Lock, 10 Ves. Jr. 470, 474.
e 1844, Bailey v. Bidwell, 13 M. & W. 73
(an attorney attesting a petition in the Bank-
§ 1292 PREFEEENCE FOR ATTESTING WITNESS. [Chap. XL
and for the same reason an officer authorized to take an acknowledgment
and to give a certificate thereof admissible as evidence under the Hearsay
exception {post, §§ 1676, 1682) would not be an attesting witness.®
(4) A person who, though he sees the execution, does not then sign, is not
an attesting witness ; ' for the object of attestation is to secure the written
record of his knowledge before any doubt can arise as to its correctness.
(5) A person who attests, but is at the time incompetent to act as attesting
witness, under the substantive law prescribing the qualities of a valid attes-
tation, is without the scope of the rule and need not be called.^ Whether
his attestation may be used, by proving the signature, as evidence of execu-
tion, is another question {post, § 1510) ; as also the question whether a sub-
sequently-arising incompetency to testify exempts from production {post,
§ 1316).
In all the preceding instances the rule of calling the witness does not
apply, and other evidence may be used ; although, the attestation being a
nullity, the document may, under substantive law requiring it to be attested,
be after all excluded as invalid.
(c) " A Party desiring to Prove its Ezeoution."
§ 1293. Rule applies only in proving Execution, not in using the Docu-
ment for other Purposes. The object of attestation is to provide a witness
who shall be able to testify to the execution of the document by the person
making it, i. e. to authenticate its genuineness. Hence, so far as the party is
engaged in proving something about the document other than its mere exe-
cution — e. g. its contents, its delivery, or the like — , the attesting witness is
not a preferred witness.^ For this reason, the rule does not apply where a
ruptcy Court, where such attestation was re- the interpreter making a will, and was required
quired for filing ; not necessary to be called). to be called).
* 1892, Lavretta v. Holcombe, 98 Ala. 503, "■ Besides the following cases, the authorities
510, 12 So. 789 (affidavit acknowledged before a to the same effect, for proof of execution in gene-
notary ; held not an attesting witness requiring , ral, cited post, § 2132, would be applicable ;
preference, though he might be to give validity 1837, Hancock v. Byrne, 5 Dana Ky. 513 (iden-
to a document). Contra: 1902, Hayes v. Banks, tifying a note ; on the theory that the writing
132 Ala. 354, 31 So. 464, semble (notary's de- itself is better than a witness, calling the wit-
fective certificate of acknowledgment). ness held not necessary); 1879, Skinner v.
' Cal. 0. C. P. 1872, § 1935 ("A subscrib- Brigham, 126 Mass. 132 (trover for chattels
ing witness is one who sees a writing executed obtained from the plaintiff in exchange for an
or hears it acknowledged, and at the request of invalid deed by third persons purporting to
the party iAer«Mpo?i signs his name") ; amended convey certain laud; witnesses not required,
in 1901 (by substituting for "it acknowledged," because the delivery of a paper, not the signing
the words "a party thereto declare that it was of a deed, was to be proved) ; 1873, Eslow v.
executed by him " ; for the validity of the Mitchell, 26 Mich. 500, 502 (not required in
amendment, see ante, § 488) ; 1829, Henry v. proving contents) ; 1875, Eayuor v. Norton, 31
Bishop, 2 Wend. 575, 577 (one who saw the id. 210, 213 (same) ; 1830, Foster v. Wallace, 2
execution but signed afterwards, not an attest- Mo. 231 (that a co-signer of a bond had executed
ing witness). merely as surety for the other ; production not
8 1848, Doe v. Twigg, 5 U. C. Q. B. 167, 170 required) ; 1813, Heckert v. Haine, 6 Binn. 16,
(" the attestation ... is a mere nullity," and the 17 (to prove a written receipt the witness must
maker's execution is to be proved otherwise) ; be called, but not to prove the fact of payment) ;
1853, Packard v. Dunsmore, 11 Gush. 283, 285 1824, Babb v. Clemson, 10 S. & R. 419, 426
(may be proved "as if there had been no attest- (same, for a bill of sale) ; 1826, Wishart v. Dew-
ing witness "). The following case is peculiar, ney, 15 id. 77, 79 (same, for a receipt) ; 1836,
but seems sound; 1849, Potts v. House, 6 Ga, Harding u. Craigie, BVt. 501, 508 (a note signed
324, 346 (a negio, incompetent as a witness, was by three persons, with S. as witness ; to prove
1576
§§ 1285-1321] EXECUTION NOT DISPUTABLE. § 1295
deed is used to show color of title or extent of claim by one claiming title
through adverse possession (jpost, § 1778) ; for the claimant does not rest
upon the authenticity of the deeds, but upon its contents as embodying the
extent of his claim. Whether the rule should apply to one who desires to
disprove the genuineness of a document is a difficult question ; ^ but it would
seem that, since by hypothesis the party alleging its execution must already
have been excused or exempted from producing the witness, the party deny-
ing should not be put in a less favorable position, and the rule should not
apply.
(d) "Against an Opponent entitled in the State of the Issues to Dispute
Execution."
§ 1294. Execution not Disputable (1) because of Estoppel or other Rule
of Substantive Law. Where the opponent by his prior conduct is es-
topped from denying execution, the execution cannot be put in issue by
him, and the party offering the document need not in any manner evidence
its execution {post, § 2132). Since the production of the attesting witness
is required solely for the purpose of evidencing execution, the rule of pro-
duction therefore does not apply.^ For the same reason, whenever a rule
of substantive law forbids the execution to be denied, the rule does not
apply ; and this seems to include the case of a document whose execu-
tion the opponent was officially hound to secure and can therefore not now
deny.*
§ 1295. Execution not Disputable (2) because of a Rule of Pleading.
So far as any rule of pleading requires that the execution of a document
named in the declaration must be expressly traversed, the failure to plead
in denial must, under such a rule, be equivalent to a confession of the
allegation of execution in the declaration, and thus the execution is not
in issue on the trial, and the present rule does not apply. Accordingly,
at common law, so far as a plea of non est factum, or other form of specific
traverse distinct from the general issue, was required for putting the exe-
cution into issue, and of course so far as the opponent failed to plead the
general issue or any specific traverse, the rule for calling the attesting wit-
tbat S. in fact witnessed only one signature, and witnesses ; plaintiff may then, to deny execu-
that the others were added after attestation, S. tion, call a witness other than the subscribing
need not be called). ' ones ; on the principle that he should be no
' 1854, Jordan v. Faircloth, 13 6a. 544 (not worse off than if defendant had not been ex-
applicable to one calling the maker to deny the empted from calling them),
genuineness of a deed in his name) ; 1856, ■■ 1849, PeiTy v. Lawless, 5 U. C. Q. B. 514
Stamper v. Griffin, 20 id. 312, 320 (claim of ad- (representations as to genuineness of a note,
verse possession under a bond in the name of Z., made before the plaintiff's purchase),
but admitted to have been forged ; claimant must * 1822, Scott v. Waithman, 3 Stark. 168
call witness, "whether the object be to prove (action against a sheriff for taking insufficient
that a writing is genuine or that it is spun- sureties on a replevin bond ; the sheriff's duty
ous," since he "is the person who knows better being to take the bond, the due execution was
than all others that the writing is genuine, if taken as admitted by him) ; Ga. Code 1895,
it is genuine, and spurious, if it is spurious ") ; § 5244 (rule not applicable to " office bonds re-
1859, Wells V. Walker, 29 id. 450, 452 (deed quired by law to be approved or tested by a par-
read by defendant to jury without producing ticnlar functionary ").
1577
§ 1295 PREFERENCE FOR ATTESTING "WITNESS. [Chap. XL
ness did not apply,^ though no liberality was shown in interpreting this
principle.^
In more recent times, and since the improvement of common-law plead-
ing, the place of this principle has generally been taken by statutory enact-
ments expressly providing that the opponent's failure to put in issue a
document whose execution is alleged in the opponent's pleading shall be
taken as an admission of its execution, and the execution cannot be denied.
These statutes provide for the taking of issue sometimes merely in the plead-
ing, sometimes additionally by affidavit; but the principle and the effect
is practically the same in all. These statutes, and the decisions interpret-
ing them, involve a rule of pleading, and are therefore without the present
purview.^
§ 1296. Execution not Disputable (3) because of Judicial Admission. For
the purposes of proof, a judicial admission of the opponent — *. e. an express
agreement for the purposes of the trial — has the same effect as a failure to
plead in denial ; it is a waiver of proof on the subject {post, § 2588). Hence
when a document's execution is judicially admitted, the present rule does not
apply .^ Such judicial admissions, however, must be distinguished from
ordiuary or circumstantial admissions, with which they have nothing in
common except the name. The use of the latter sort in the present con-
nection raises a different question {post, § 1300).
§ 1297. Execution not Disputable (4) because of Opponent's Claim under
the Same Instrument. Where the opponent's claim, as expressly set forth in
the pleadings or as developed in the course of proof, predicates the genuine-
ness of the very document which the proponent now desires to prove, it is
1 1818, Cooke v. Tanswell, 8 Taunt. 450 the rigor of the present rule ; «. g. 1826,
(Gibbs, C.J. : "In oases where Tion est foKtum Roberts o. Tennell, 3 T. B. Monr. 247, 250.
is not pleaded, ... I never yet heard it con- Distinguish the following : 1878, Holden v.
tended that it was necessary to call the subsorib- Jenkins, 125 Mass. 446 (failure to deny a sig-
ing witness "). nature, under a statute requiring a specific
* 1811, Williams v. Sills, 2 Camp. 519 denial, does not relieve from proof of the attest-
(EUenborough, L. C. J.; "The defendant by ing witness' signature for the purpose of availing
refraining from the plea oi non est fadumhas of a longer statutory bar for attested documents;
only admitted so much of the deed as is ex- but " might relieve " from calling the witness to
panded upon the record ; and if the plaintiff prove the maker's signature),
would avail himself of any other part of the ^ 1800, Laing m. Kaine, 2 B. & P. 85 (war-
deed, he must prove it by the attesting witness rant of attorney ; since "it appeared that the
in the common way ") ; 1838, GiUett v. Abbott, defendant did not merely acknowledge the in-
7 A. & E. 783 (a plea admitting the execution of strument, but agreed [for the purpose of legal
a deed of indemnity sued on, the deed's recital proceedings] that the plaintiff should act upon
setting out in part a deed of trust, does not dis- it as if the witness himself had been produced,"
pense with the witness to the deed of trust) ; the calling was not required ) ; 1839, Bringloe v.
1841, Jackson ». Bowley, Car. & M. 97 (on an Goodson, 8 Scott 71, 83, per Tindal, C. J.;
issue of plene administravit, in an action against 1885, Coleman v. State, 79 Ala. 49; 1890, Rieh-
an executor, the witness to a deed to the testa- mond, etc. R. Co. v. Jones, 92 id. 226, 9 So.
tor must be called). 276 ; 1893, Hawkins v. Ross, 100 id. 459, 464,
' They are further noticed under JxidiciaX 14 So. 278; 1881, Jones v. Henry, 84 N. C. 320,
AdmissioTis {post, § 2594). 323; 1834, Grady v. Sharron, 6 Yerg. 320, 321,
The curious result may occur, where such a 324 (admission by counsel exempts from calling
statute exists, and where the limitation about witnesses). Oontra, but clearly wrong : 1844,
documents incidentally in issue (ante, § 1290) Hj'lton o. Hylton, 1 Gratt. 161, 165 (admission,
does not exist, that the essential documents in during trial, of the due execution of a will, not
the case need not be authenticated at all, while sufficient to dispense with the testimony re-
minor documents must be proved according to quired by law).
1578
1285-1321]
EXECUTION NOT DISPUTABLE.
1298
clear that tlie former is in precisely the same situation as if he had by plead-
ing or by judicial admission conceded the document's execution. It is
obviously inconsistent for him to assert its execution as an element of his
present claim or defence, in one part of the proceedings, but in another part
in effect to deny the execution by putting the proponent upon proof of it. So
long as the opponent maintains the former attitude, he must relinquish the
latter one ; so long as the document is genuine for his purposes, it is also (so
far as he is concerned) genuine for the proponent's purposes. The execution
thus not being disputable, the rule requiring the attesting witness to prove it
does not apply.
This has long been judicially conceded ; although the precise terms defin-
ing the situation are not uniformly expressed, and the application of the prin-
ciple to particular states of facts is open to more or less difference of opinion.^
§ 1298. Same : Execution Disputable, and Rule Applicable, -where the
Opponent merely Produces the Instrument, -without Claiming under it.
Towards the end of the 1700s a doctrine was started that, where the docu-
1 England: 1726, Gilbert, Evidence, 98 (a
claim by the opponent under a deed A reciting
a deed B exempts from proof of deed B) ; 1818,
Knight II. Martin, Gow 26 (assignor against
assignee of a lease ; the defendant's possession of
the instrument, claiming under it, dispenses
with the witness) ; 1819, Gorton v. Dyson, 1 B.
& B. 219, 221 (action against executors ; their
claim under the will, held to dispense with
calling the witnesses) ; 1821, Orr v. Morice, 3 id.
139 ; 6 Moore 347 (action for use and occupation
against ^siguees in bankruptcy ; the production
by the defendants of the assignment, together
with their occupation of the premises, held a
"claim of beneficial interest," and the witness
dispensed with) ; 1826, Doeu. Deakin, 3 C. & P.
402 ; 1826, Burnett v. Lynch, 8 D. & R. 368,
B75, 5 B. & C. 589, 600, 604 (action on the
covenants of a lease, by the lessee against the
assignee, who had himself assigned to a third
person ; per Bay ley, J., "if a party has taken
under a deed all the interest which the deed is
calculated to give," he cannot dispute execution) ;
1826, Doe v. Hemming, 9 D. & R. 15 (lease to a
defendant by an ancestor of the plaintiff in
ejectment ; the plaintiff had obtained possession
of the document and refused to produce or show
it until the trial ; no proof of execution required,
because the plaintiffs "intended to derive a
benefit from the possession of the lease, and
their conduct . . . was such as clearly admitted
its validity"); 1831, Bradshaw v. Bennett, 1
Moo. & Bob. 143, 5 C. & P. 48 (action to get
back a deposit on a sale rescinded ; the rule dis-
pensed with as to the agreement of sale, the
defendant being one " taking an interest " under
it) ; 1835, Doe v. Wilkins, 4 A. & E. 86 (eject-
ment, the defendant claimed under a deed which
the plaintiff offered ; extrinsic evidence to show
this claim held proper, and proof of execution
dispensed with) ; 1835, Carr v. Burdiss, 1 0. M.
& K. 782, 784 (trover for goods taken under a
fraudulent assignment; the defendants pleaded
VOL. 11. — 37
1579
the assignment ; the plaintiff not required to
call the witness to prove it, even though he was
impeaching it as fraudulent ; " the object which
the parties have in calling for its production " is
immaterial) ; 1836, Doe v. Wainwright, 1 Nev.
& P. 8, 12 (ejectment, defendant possessing and
claiming under a deed offered by the plaintiff ;
witness dispensable) ; 1839, Bringloe v. Goodson,
8 Scott 71, 83 (will ; calling dispensed " where the
will is recited in a deed imder the seal of the
party and some advantage is taken by him under
it"); 1843, Bell v. Chaytor, 1 G. & E. 162
(action on a contract to employ ; the defendant's
claim that the contract was not broken held to
dispense with the witness). Canada : 1851 , Chis-
holm V. Sheldon, 2 Grant U. C. 178 (conveyance
produced by an opponent claiming an interest
thereunder ; no proof of execution necessary) ;
United States: Cal. C. C. P. 1872, § 1941
(quoted post, § 1300); 1860, Herring v. Rogers,
30 Ga. 615, 617 (production by opponent, and
claim under it, sufficient) ; Ga. Code 1895, § 5248
("The production of the paper by the opposite
party, it'Jie claims any benefit under it, dispenses
with the necessity of proof") ; 1898, Brown v.
Mendonca, 12 Haw. 249, 251 (production by the
opponent, claiming "any interest of a substantial
and abiding nature," even though not concerning
the subject of the suit, suffices) ; 1821, Lewis v.
Ringo, 3 A. K. Marsh. 247 ; 1857, McGregor v.
Wait, 10 Gray 72, 73, 75 (plea of a right of way
in an action of trespass ; rule not applied to
plaintiffs proof of deed under which defendant
claimed) ; 1819, Jackson v. Kingsley, 17 Johns.
158 ; 1829, Duncan v. Gibbs, 1 Yerg. 256, 259
(plaintiff used a deed to defendant to prove D.
incompetent for defendant as warrantor ; held
that defendant could use the deed though not
legally recorded so as to prove execution) ; 1827,
Rhoades v. Selin, 4 Wash. C. 0. 715, 719 (ad-
missible without authentication, if the opponent
producing is " a party to it or claims a beneficial
interest under it ").
§ 1298 PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
ment to be proved was in possession of the opponent, and was produced ly
Mm on notice, the proponent need not prove its execution, and therefore, of
course, need not call the attester.^ This singular doctrine was placed, in the
first ruling, on the ground that the proponent would have been ignorant of
the attester's name, and therefore the attester was in effect unavailable (on
the principle of § 1314, posf). But in later rulings it seems to have been
supported rather on a confused notion of its identity with the principle just
considered (in § 1297), i. e. the opponent's claim under the document. This
latter ground is certainly unsound; for there is an essential difference
between the opponent's mere custody of the document and his making claim
under it ; the former can never in itself be equivalent to a judicial admission
of genuineness. The earlier reason is scarcely more tenable. The proponent's
ignorance of the names might have been remedied by a bill for discovery, or
by a motion for a continuance after learning the names on production ; under
modern statutes, the names could always be learned by demanding inspection
before trial. Moreover, it is difficult to see why, even if the ignorance was
irremediable, the proponent should be excused from all proof of execution ;
he might be excused from calling the attesters, but not from making some
other proof of execution; there is a hiatus here, which indicates that this
earlier reason was not so much the real one as the later one, above noted.
Finally, as a matter of policy, it does not seem fair that an opponent who
happens to possess a document should be obliged to have it taken against
him as genuine merely because of that chance possession. The doctrine, in
short, can only be termed, in the language of Mr. Justice Washington, " a
kind of legal legerdemain."
After some fluctuation of rulings the doctrine of R v. Middlezoy was in
England finally repudiated.^ It had already obtained some footing in this
1 1787, R. V. Middlezoy, 2 T. R. 41 (pauper 548 (Ellenborough, L. C. J., "said that the
settlement ; the other parish proving a hiring in case of R. v. Middlezoy, which was much ques-
M. parish, the latter in rebuttal claimed a prior tioned at the time, had been since overruled " ;
apprenticeship of the pauper in the former, and the production by the opponent "did not super-
gave notice to produce the indenture ; but, on sede the necessity of proving it by one of the
its production by the opponent, offered no evi- subscribing witnesses, if any, as in ordinary
dence of execution ; held, unnecessary. ; Buller, cases " ; counsel argued the difficulty of learning
J.: "In civil actions . . . the deed when pro- the names of the witnesses; but the Court
duceJ [from the opponent's custody] must prima pointed out that this was outweighed by the
facie be taken to be duly executed, because the disadvantage that, " however questionable its
plaintiff, knowing who are the subscribing wit- execution might be, and even though he [the
nesses, cannot come prepared at the trial to opponent] had impounded it because it was
prove the execution of the deed ; therefore, an forged or had been obtained by fraud," yet the
instrument coming out of the hands of the mere possession would in that case suffice to
opposite party must be taken to be proved "; authenticate it ; but a stay was granted to give
and two such unreported rulings of Lord Mans- au opportunity to call the witnesses) ; 1809,
field were cited). Wetherston v. Edgington, 2 Camp. 94 (Heath,
^ 1793, Bowles v. Langworthy, 5 T. R. 366 J. ; " The old rule was the sensible one, that an
(R. V. Middlezoy approved ; trover by assignees instrument coming from the opposite side was
in bankruptcy ; here the defendant had pro- prima facie taken to be duly executed " ; but he
duced at the commissioners' hearing a bill of sale, conceded that the rule had been changed) ; 1810,
claiming under it) ; 1807, Johnson v. Lewellin, Pearce v. Hooper, 3 Taunt. 60 (trespass for
6 Esp. 101 (Ellenborough, L. C. J., thought entering a close in C. ; the defendant called for
that R. 0. Middlezoy " appeared to have been the deed of C, which would show that the close
decided without due consideration," and declined was not the plaintiffs; attesting witnesses un-
to follow it) ; 1807, Gordon v. Secretan, 8 East necessary) ; 1821, Orr v. Morrice, 3 B. & B.
1580
§§1285-1321] OPPONENT'S POSSESSION. §1299
country ; ^ but it has also been discountenanced in as many jurisdictions ; *
though the question has seldom come up for adjudication.
Where the opponent refuses to produce, or otherwise suppresses the docu-
ment, it would seem that his refusal would certainly (on the principle of
§ 291, ante) be some evidence of the document's genuineness, and might
fairly dispense with the rule requiring production of the attester.^
(e) " Before using Other Testimony. "
§ 1299. Attester preferred to any Third Person, including the Maker of the
Document. By the very notion of a rule of preference, the rule for an attes-
ter's testimony prefers it in priority over the testimony of any other person
present and observing the execution of the document.^
But is the rule so rigid that even the testimony to execution of the person
actually purporting to be the maker of the document (not being a party to the
suit) is not to dispense with the calling of the attester ? Such was the
orthodox acceptance:
1815, EUenhorougTi, L. C. J., in R. v. Harringworth, 4 M. & S. 3.50 (pauper-settlement;
the pauper's own testimony, not a party to the suit, to his indenture, excluded) : " The
rule is universal that you must first call the subscribing witness ; and it is not to be
varied in each particular case by trying whether in its application it may not be produc-
tive of some inconvenience."
This extreme result has been maintained in England and in most American
jurisdictions.^ But there seems no good reason for it. It partakes of the
139, C. P. (the fluctuations in the preceding (deed and bond produced on order by defendants,
rulings reviewed ; Pearce v. Hooper regarded as presumed genuine).
taking a middle ground, i. e. possession, plus * 1819, Jackson v. Kingsley, 17 John. 158
the claim of a beneficial estate ; per Dallas, (production of an instrument by one who is a
C. .!., and Richardson, J., Gordon ». Secretan party to it and claims a beneficial estate under it,
lield to represent the law, qualified by Pearce v. necessary to dispense) ; 1859, Hill v. Townscnd,
Hooper; per Burrough, J., R. v. Middlezoy was 24 Tex. 575, 580, semble ; 1827, Rhoades v.
still law ; per Park, J., undecided on that Selin, 4 Wash. C. C. 715, 719.
point) ; 1826, Burnett v. Lynch, 8 D. & R. » 1818, Cooke v. Tanswell, 8 Taunt. 450 (the
368, 375 (lessee against assignee of the lease, opponent refused to produce on notice; "if he
who had assigned to D. ; admitted, "coming as wished to throw on the plaintiff the burthen of
it did out of the hands of the defendant, or of a calling the subscribing witness, he might have
person who claimed under him," per Holroyd, produced the deed") ; 1838, Poole v. Warren,
J. ; "the deed came out of the possession of the 3 Nev. & P. 693 (copy of a notice to_quit ; proof
party," per Bayley, J.); 1841, Collins v. of execution not necessary, following Cooke v.
Bayntun, 1 Q. B. 117 (assumpsit for money had Tanswell). This effect would certainly follow
and received; plea, partnership; an alleged under those statutes in some jurisdictions {ante,
agreement of partnership, proved by the defend- § 1295, post, § 1859) by which an opponent may
ant, but produced by the plaintiS' ; the witness he defaulted for refusal to produce on notice.
held indispensable); Canada: 1844, Joplin v. ^ 1856, Tudor n. Tudor, 17 B. Monr. 383,
Johnson, 2 Kerr N. Br. 541 (mere production 390 (will not provable by draughtsman) ; 1823,
not sufficient). Labarthe v. Gerbeau, 1 Mart. N. s. 486 (attester
' Cal. C. C. P. 1872, § 1941 (quoted post, preferred even to the testimony of the parish
§1300); 1884, Hobby v. Alford, 73 Ga. 791; judge certifying it) ; 1855, Barry w. Ryan, 4 Gray
1828, Stevenson v. Dunlap, 7 T. B. Monr. 134, 623 (excluding proof by another person present) ;
137, semble; 1815, Belts v. Badger, 12 John. Contra: 1895, Garratt v. Hanshue, 53 Oh. 482,
223 (the practice here " has been in conformity 42 N. E. 266 (not preferred to the officer taking
with what Mr. J. Heath calls the old rule," i. e. the acknowledgment of the maker),
of R. V. Middlezoy ; " if the party producing the ^ Eng. : 1794, Johnson v. Mason, 1 Esp. 89
instrument is one of the parties to it," this dis- (maker of the deed under which the plaintiff
penses with proof of execution) ; 1898, Bern- held) ; 1816, R. v. Harringwortli, supra; 1853,
hardt v. Brown, 122 N. C. 687, 29 S. E. 884 Whyman v. Garth, 8 Exch. 803 (maker of a
1581
§ 1299 PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
pedantic and the obstinately technical to insist on the calling of the attester
when the very person whose execution is to be proved is willing to take the
responsibility of charging himself on oath with the act of execution. That
he may possibly be a partisan of the proponent's is no more reason for ex-
cluding him than for excluding any other partisan witness, and is no more
likely to be the case with his testimony than with that of the attester :
1858, Roberts, J., in White v. Holliday, 20 Tex. 679, 682 : « When are they [the wit-
nesses] needed ? Are they needed at all when the parties are both agreed upon the same
thing, about the execution and objects of the contract, and have no issue or dispute in
relation to it ? ,If it be an essential element in their creation and capacity that they must
be produced when the parties are agreed, a party litigant cannot admit his deed by plea
or other writing filed in court ; [yet] that has never been doubted. . . . By what stronger
evidence can it be made to appear that the parties to the deed do agree about its execution
(and thereby dispense with the subscribing witnesses) than for the grantee to assert the
execution in his petition and to procure the grantor to appear in open court on the trial
and as a witness swear to the execution as alleged by the grantee ? . . . [After pointing
out that fraud, lack of consideration, etc., were not in issue and therefore the testimony
of a witness could not be better than that of the disinterested grantor,] . . . This is not
an exception under the rule that the subscribing witnesses must be called or accounted
for, but a case above the rule and superseding it, and in accordance with that which
enjoins that the best evidence must be adduced."
This desirable view has been accepted in a number of jurisdictions.^ It is
occasionally put on the ground of the statutory abolition of parties' disquali-
fications ; but this is erroneous, for at common law the maker, though not
incompetent by interest, was nevertheless excluded. — If the attesting wit-
ness is called, but fails to testify {post, § 1302), the maker's testimony is then
receivable.*
§ 1300. Attester preferred to Opponent's Extrajudicial Admissions. If
the opponent has extrajudicially admitted the execution of the document,
need the rule requiring the attestor's testimony still apply ? The distinction
deed) ; U. S. : Ala. : 1881, Coker v. Ferguson, for the absence of the attesting witnesses") ;
70 Ala. 284, 286, 288 ; 1882, Russell v. Walker, 1902, Hayes v. Banks, 132 Ala. 354, 31 So. 464
73 id. 315, 317 (mortgagor forraortgagee) ; Ga. : (statute applied) ; Ga. Code 1895, § 5244 (at-
1849, Tyler v. Stephens, 7 Ga. 279 (grantor); tester not required if the maker " testifies to its
1889, Baker iJ. Massengale, 83 id. 137, 142, 10 execution"); 1874, Bowling v. Hax, 55 Mo.
S. E. 347 (maker's testimony, as assignor to 447, 448, semble; 1813, Jackson v. Neely, 10
plaintiff); 1895, Fletcher w. Perry, 97 id. 368, John. 374, 376 (deed ; testimony of the maker
23 S. E. 824 ; Ind. : 1844, Sampson v. Grimes, sufficient) ; 1895, Garrett v. Hanshue, 53 Oh.
7 Blackf. 176 ; Ky. : 1808, Reading v. Metcalf, 482, 42 N. E. 256 ; 1858, White «. Holliday,
Hardin 535 (release to interested witness ; re- 20 'Tex. 679 (grantor of a deed, not a party,
leasee's proof of execution not sufficient) ; 1816, called to stand ; witnesses dispensed with) ;
Brashear v. Barton, 4 Bibb 442 ; 1820, M'Clain 1878, Wiggins v. Fleishel, 50 Tex. 57, 63 (pre-
V. Gregg, 2 A. K. Marsh, 454, 456, semble; ceding case approved; but the grantee's testi-
1821, Mclntire v. Funk, Litt. Sel. C. 425, 427 ; mony held not to dispense with subscribing
1823, Rees v. Lawless, 4 Litt. 218; 1826, witnesses); 1879, Texas Land Co. .-.Williams,
MoMurtry v. Frank, 4 T. B. Monr. 34; Mass.: 51 id. 51, 59 (approving the preceding case;
1862, Brigham v. Palmer, 3 All. 450 (mortgagee but making an exception where the deed is lost ;
calling a mortgagor in an action against a thud the distinction rests on a, misunderstanding of
person ; excluded) ; Mo. .- 1847, Glasgow v. the phrase " secondary evidence ").
Ridgeley, 11 Mo. 34, 39. * 1896, Kelly v. Sharp S. Co., 99 Ga. 393,
» Ala. Code 1897, §1797 ("The execution 397, 27 S. E. 741 (maker's testimony received,
of any instrument of writing attested by wit- where witnesses were called but could not prove
nesses may be proved by the testimony of the execution),
maker thereof, without producing or accounting
1582
§§ 1285-1321] OPPONENT'S ADMISSIONS. § 1300
between a judicial or solemn admission and an ordinary or circumstantial
admission {ante, §§ 1048, 1057) is here important; the former is an absolute
waiver of proof on the whole matter, and relieves the proponent from offer-
ing any evidence of execution {ante, § 1296) ; the latter is simply an incon-
sistent utterance, offerable as one piece of evidence, going with the other
evidence to discredit the opponent's present claim. The proponent is there-
fore here not relieved from proving execution ; but the question is whether,
of the various sorts of evidence available to him, he must employ the attes-
ter's testimony in preference to the extrajudicial utterances of his opponent.
These utterances, it may be observed, if receivable, are equally receivable
whether the opponent was (as usually) himself the maker of the document
or not ; in the former case they are more probative ; but they come in, if at
all, not because he was the maker, but because he is the opponent in the suit.
Now, so far as concerns their practical trustworthiness, for the purpose of
dispensing with the attesting witness, it is to be observed, as already noticed
in dealing with the same evidence for proving a document's contents {ante,
§ 1255), that the real objection to them rests only on the possibility of fabri-
cated testimony to oral admissions. The possibility of error in an opponent's
actual admission of the document's execution is very small. If in a writing
produced to the Court, such an admission clearly appears to have been made,
there is no reason why such evidence should not serve at least to dispense
with the evidence of the attesting witness. But where the alleged admis-
sion is an oral utterance, and the opponent denies it, and the testimony of
some witness has to be believed before we can assume that the admission was
really uttered, here it seems less desirable to abandon the ordinary prefer-
ence for the attesting witness and to replace it by evidence open to such
uncertainties. In short, where the supposed admission is contained in a
writing produced to the Court, it should sufi&ce to dispense with the attest-
ing witness ; but not where it is alleged as a mere oral utterance and is
denied by the opponent.
The rulings have been by no means harmonious. No express and final
settlement of the point seems to have been reached in England; but ap-
parently a written admission was sufficient to dispense, and there is some
authority to the same effect for an oral admission.^ In the United States the
^ 1701, Dillon V. Crawly, 12 Mod. 500 (the Plumbe distinguished tecause the defendant was
witness to a deed was subpoenaed but did not ap- there no party to the document) ; 1811, Jones
pear; an indorsement of the party himself on the v. Brewer, 4 Taunt. 46 semble (admissions ex-
deed, acknowledging it, was oflered, but objected eluded); 1841, Wollaston v. Hakewill, 3 Scott
to ; Holt, C. J. : " Can there be better evidence of N. R. 593, 617 (a memorial ■ — or recorded copy
a deed than to own it and recite it under his hand — of a deed, made by one of the parties, appar-
and seal?" ; and all the Court agreed) ; 1779, ently held to dispense); 1845, Lord Gosford v.
Abbot V. Plumbe, 1 Doug. 216 (a bankrupt's Eobb, 8 Ir. L. E. 2i7 (" no admission of a
extrajudicial oral acknowledgment of a bond, ex- party " can dispense ; here, certain conduct of
eluded, in an action of trover by the assignees, a landlord held not to dispense with the proof of
who wished to pi-ove the petitioning creditor's a power of attorney to execute the lease) ; 1845,
debt) ; 1793, Bowles v. Langworthy, 5 T. E. 366 Fishmongers' Mistery v. Eobertson, 1 C. B. 60,
(trover by assignees in bankruptcy against one 74 (undecided) ; same case, 6 id. 896, 903 (a
holding under a sale ; to prove the bill of sale, subsequent memorandum on a contract, admit-
as an act of bankruptcy, the defendant's admis- ting execution, held to dispense) ; 1856, Hough-
sions as to its execution were received ; Abbot v. ton v. Koenig, 18 id. 235, 238, semble (the
1583
§ 1300
PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
distinction between a written and an oral admission has seldom been taken,
and the majority of Courts do not allow extrajudicial admissions to dispense
with the rule.^
Distinguish here, however, (1) the exclusion of oral admissions of title,
forbidden because in effect violating the Statute of Frauds (ante, § 1257) ;
(2) the case of an attesting witness testifying to the maker's oral acknowl-
edgment of execution on the faith of which the attester signs in attestation ; ^
here the rule is satisfied by calling the witness, and the maker's acknowl-
edgment is an adoption of his previously-placed signature and is itself
equivalent to execution in the attester's presence {ante, § 1292).
John. 451 ("All instrument, though attested
by a subsci'ibing witness, may be proved by the
confession of the party who gave it"; here a
note, by the defendant's extrajudicial admis-
sion) ; 1808, Fox v. Reil, 3 id. 477 (a bond by
the defendant ; admissions excluded ; Kent, C. J.,
distinguished the ruling in Hall v. Phelps as ap-
plying only to a note ; " the rules of evidence may
be more safely relaxed in the one case than in the
other ") ; 1819, Shaver v. Ehle, 16 id. 201 (note
orally admitted genuine by the defendant-maker ;
excluded, because the admission did not relate
specifically to the note offered) ; 1824, Rowley
V. Ball, 3 Cow. 303, 311 (similar admissions
held sufficient, because applying to the speeifio
note) ; 1835, Corbin v. Jackson, 14 Wend. 619,
623, 630 (oral admissions of the execution of
an attested power of attorney, held sufficient ;
Tracy, Sen., diss.) ; 1844, HoUenback v. Flem-
ing, 6 Hill 303, 305 ("confession or acknowl-
edgment of the party " will not dispense) ;
N. C: 1881, Jones v. Henry, 84 N. C. 320,
323 ("as a general rule," the admission of an
obligor is not sufficient) ; Oh. : 1827, Zerby v.
Wilson, 3 Oh. 42 (contract affecting realty ; de-
fendant's admissions not dispensatory) ; 1877,
Warner v. R. Co., 31 Oh. St. 265, 270 (grantor's
admissions, held not dispensatory) ; 1895, Gar-
rett V. Hanshue, 53 id. 482, 42 N. E. 256
(same); Or.: C. C. P. 1892, § 761 (like Cal.
C. C. P. § 1942) ; Pa. : 1804, Taylor v. Meekly,
4 Yeates 79 (oral and written admissions re-
ceived, where one witness could not remember
and the others seemed fictitious) ; 1849, Wil-
liams V. Floyd, 11 Pa. St. 499 (promissory note ;
admissions before a justice, sufficient, following
Halli;. Phelps, N. Y.) ; R. I.: 1852, Kinney w.
Flynn, 2 R. I. 319, 323 (admissions excluded);
U. S.: 1802, Smith v. Carolin, 1 Cr. C. C. 99
(admissions excluded) ; 1820, Turner w. Johnson,
2 id. 202 (same) ; 1848, Savage v. D'Wolf, 1
Blatchf. 343 (party's admission of contract not
nnder seal, sufficient, bv N. Y. law) ; Utah
Rev. St. 1898, § 3405 (like Cal. C. 0. P. § 1942,
omitting the clause as to ancient writings) ; Vt. :
1802, Adams v. Brownson, 1 Tyl. 452 (note by
deceased partner of defendant ; deceased part-
ner's admission allowed to dispense with wit-
ness) ; 1839, Hodges v. Eastman, 12 Vt. 358
(admission of note's execution, receivable in ac-
tion on promise to pay in consideration of the
note).
» 1794, Powell V. Blackett, 1 Esp. 97.
acknowledgment by the lessee, in the counter-
part, of the holding on the terms of the lease is
sufficient autlrentication of the lease).
* .Ala. : 1833, Beunet v. Robinson, 3 Stew.
& P. 227, 240 (note ; admissions by the maker,
defendant's intestate, not sufficient ; Hall v.
Phelps, N. Y., repudiated ; a well-reasoned opin-
ion) ; 1882, Russell v. Walker, 73 Ala. 317
(admissions excluded) ; 1885, Coleman v. State,
79 id. 49 (mortgage ; oral admissions of mort-
gagor-defendant, not in justicio, excluded) ;
1890, Richmond, etc. R. Co. v. Jones, 92 id. 226,
9 So. 276 (admissions excluded) ; 1893, Hawkins
V. Ross, 100 id. 459, 464, 14 So. 278 (same) ;
Cal. : 1863, Hilborn v. Alford, 22 Cal. 482, 484
(note; Hall v. Phelps, N. Y., apparently ap-
proved) ; C. C. P. 1872 § 1942 (where " evidence
is given that the party against whom the writ-
ing is offered has at any time admitted its exe-
cution," it is enough if the writing is more than
30 years old or is " produced from the custody
of the adverse party and has been acted upon
by him as genuine " ; this clause unites in hope-
less confusion several distinct principles, and it
is not worth while to attempt to disentangle
them ; the ensuing amendment correctly draws
the section) ; Commissioners' amendment of 1901
(by substituting for the entire sentence the fol-
lowing: " A writing may also be proved by evi-
dence that the party against whom it is offered
has at any time admitted its execution, or by evi-
dence that it is produced from his custody and
has been acted upon by him as genuine " ; for
the validity of this amendment, see ante, § 488) ;
Oonn. : 1794, Low v. Atwater, 2 Root 72 (ad-
missions excluded) ; Oa.: 1851, Ellis v. Smith,
10 Ga. 253 (same); 1871, Mills v. May, 42 id.
623 (same) ; Ida. Rev. St. 1887, § 5995 (like
Cal. C. C. P. § 1942, omitting the clause for an-
cient documents) ; Ky. : 1816, Fearn v. Taylor,
4 Bibb 363, 365 (admissions of predecessor in
title; "perhaps" witnesses must be called;
here there were none) ; 1817, Cartmell v. Wal-
ton, ib. 488 (oral admission by defendant, ex-
cluded) ; 1828, Stevenson v. Dunlap, 7 T. B.
Monr. 134, 137 (admissions of predecessor used
on the facts) ; Mo. : 1828, Smith «. Mounts,
1 Mo. 671 (acknowledgment by maker of deed,
excluded); Mont.: C. C. P. 1895, §3233 (like
Cal. C. C. P. § 1942) ; N. H. : 1848, Cram ».
Ingalls, 18 N. H. 613, 617 (recognition, in a
deed, of an attested mortgage, evidence of its
execution); N. Y,: 1807, Hall v. Phelps, 2
1584
§§1285-1321] OPPOisENT'S ADMISSIONS. §1302
§ 1301. Attester preferred to Opponent's Testimony on the Stand. When
the opponent also becomes witness as well as opponent — i. e. when he is
placed upon the stand or makes discovery on interrogatories — , and thus his
utterances are not only ordinary admissions but also testimony,, the objec-
tions against dispensing from the rule disappear entirely. The principal ob-
jection (noted ante, § 1300), that his extrajudicial oral admissions may be
evidenced by fabricated testimony, is here of no force, for his testimony to
the execution is delivered in the very presence of the tribunal. It is an
excess of pedantry to insist on the production of the attester when the op-
ponent himself (usually also the maker of the document) can be found testi-
fying, on the stand or in a sworn answer, to the desired fact of execution.
Nevertheless, this insistence is found in a number of jurisdictions ; ^ though
others properly here dispense with the rule and do not require the calling of
the attester.^ The latter result has sometimes been reached as a supposed
consequence of the • statutory abolition of parties' incompetency (though
erroneously, for the question could and did come up at common law in
regard to an answer obtained by a bill of discovery) ; the effect thus being,
on this supposition, to admit also (for example) the testimony on his own
behalf of a grantee-plaintiff to his grantor-defendant's execution.^ But this
"result, though fair enough, is not maintainable on the same ground as the
use of an opponent's testimony, and in truth goes beyond any of the fore-
going principles of exemption.
(f) " Must either Produce the Attester as a "Witness."
§ 1302. Attester need not Testify Favorably ; Witness Denying or not
Recollecting. The notion of the rule of preference for the attesting witness
is that of the general desirability, in the furtherance of truth, of obtain-
ing his knowledge on the subject (ante, § 1288). What its tenor may be,
* 1803, Call V. Dunning, 4 East 53, 5 Esp. 16 247, 250 (answer in chancery, insufficient); 1862,
(admission in an answer to a bill of discovery) ; Brighani v. Palmer, 3 All. 450, semble (insuffi-
1836, Ashmore v. Hardy, 7 C. & P. 501, 503 (an- cient notwithstanding the abolition of parties'
swer in chancery, admitting execution of a deed disqualifications) ; 1874, Henly v. Hemming, 7
from W. to defendant) ; 1853,Whyman v. Garth, Baxt. 524, 526 (rule applies even since abolitiou
8 Exch. 803 (the opponent, the maker of the deed, of parties' disqualification),
was not allowed to be called ; Pollock, C. B : " 1876, Doe v. Nevers, 16 N. Br. 614 (Why-
" If in the course of the proceedings in the man v. Garth, held not law for a deed executed
cause the party to the deed admits the execu- since Consol. St. c. 46, § 23, quoted ante, § 1290);
tion, or if by his pleadings he does not require Ala. Code 1897, § 1797 (quoted ante, § 1299);
the execution to be proved, he may be veiy rea- Cal. C. C. P. 1872, § 1942, as amended in 1901
souably said to have waived the [implied] agree- (quoted ante, § 1300) ; Ga. Code 1895, § 5244
inent [to call the subscribing witness] " ; but (quoted ante, § 1299) ; 1885, Kayburn v. Lum-
not otherwise) ; 1884, Askew v. Steiner, 76 Ala. her Co., 57 Mich. 273, 274, 23 N. W. 811 (proof
218, 221 (testimony of plaintiff-grantee under by calling the opponent, allowed without requir-
mortgage, not sufficient to exempt from produc- Ing the attester) ; 1858, White v. HoUaday, 20
tion) ; 1890, Richmond & D. E. Co. v. Jones, Tex. 679, semble (quoted ante, § 1299).
92 id. 218, 226, 9 So. 276 (even questioning the ' 1874, Bowling v. Hax, 55 Mo. 447, 448
party and maker on the stand, insufficient) ; (since parties are made competent, the witness
1895, Winter v. Judkins, 106 id. 259, 17 So. need not be called ; here, a plaintiff suing on a
627 ; 1851, Ellis u. Smith, 10 Ga. 253 ( sworn contract, executed by plaintiff and defendant,
answer, insufficient) ; 1878, Davis v. Alston, 61 was allowed 'to prove it). Contra: 1879, Wiggins
id. 225, 227 (admissions on the stand, insuffi- v. Fleishel, 50 Tex. 57, 63, semble (cited ante,
cient) ; 1826, Koberts v. Tennell, 3 T. B. Monr. § 1299).
1585
§1302 PEEFERENCE FOR ATTESTING WITNESS. [Chap. XL
remains to be seen ; the object of the law is to obtain his knowledge, irre-
spective of the side in whose favor it may bear. Accordingly, it is not neces-
sary, as a part of the rule, that he should testify in favor of execution. The
rule is satisfied by calling him, i. e. by making Ms testimony available for the
trial. If his testimony fails to evidence the execution, the present rule says
nothing about the consequences, — whatever any other rule may say. The
present rule's force is absolutely spent when the witness is produced for ex-
amination. Here also policy agrees with principle ; for the practical working
of the rule, if it required that the witness should not only testify but testify
favorably (i. e. if the party desiring to prove execution must fail if the attes-
ters failed to prove it) would be unfair and disastrous, especially in testa-
mentary causes :
1839, Tucker, P., in Clarke v. Dunnavant, 10 Leigh 13, 33 : " It never could have been
the design of the statute to vacate a will which was duly executed, whenever the wit-
nesses to it have forgotten any material circumstances attending the attestation. They
are indeed always called upon to prove the will, not because the statute requires that they
shall prove a compliance with all the requisites of the law, but because they would be
most likely to prove or disprove them, and because upon principles of common law the
attesting witness to every instrument must be produced if living and within the power of
the Court."
1862, Denio, J., in Tarrant v. Ware, 25 N. Y. 425, 426: " Prior to any adjudication upon
the subject, it might have been argued with some plausibility that the nature and objects
of the provisions declaring a certain number of subscribing witnesses necessary to a valid
will required that the number specified should unite in testifying to an execution and
attestation of the instrument in the manner required by the act; or at least that the
will could not be established if a part or all of them should deny the existence of
the facts requisite to show a proper execution. The witnesses were supposed to be
persons selected by the testator to bear witness that he had actually executed the
paper with a knowledge of its contents and in the form prescribed by law and that
he was of suitable age and capacity and not under restraint ; if the persons thus
selected could not or would not affirm the existence of these facts, the intention of
the law (it might be said) would not be answered ; . . . [and] if the testimony of
the chosen witnesses, when unfavorable to the will, could be disregarded, a will may
be set up and established by testimony not authorized by the statute and which the
Legislature had not considered perfectly safe in ordinary cases. But, on the other
hand, it was soon seen that the attesting witnesses might forget the facts to which
they had once attested, and that it was not impossible that they might be tampered
with by interested parties and thus be induced to deny on oath the facts which they
had been selected to witness and to depose to. This view prevailed with the Courts.
. . . Whether their [the witnesses'] denial of what they had attested proceeds from per-
versity or want of recollection, the testament may in either case be supported."
1895, Lumpkin, J., in Gillis v. Gillis, 96 Ga. 1, 15, 23 S. E. 107 • " [The attesting
witnesses are,] unless accounted for, indispensably necessary witnesses ; but the testi-
mony, even as to the factwn of the execution, is not confined to them. The fact to be
established is the proper execution of the will. If that is proved by competent testi-
mony, it is sufficient, no matter from what quarter the testimony comes, provided the
attesting witnesses are among those who bear testimony, or their absence is explained.
The inquiry, as in other cases, is whether, taking all the testimony together, the fact is
duly established. It is not required that any one or more of the essential facts should
be proved by all, or any number, of the attesting witnesses. The right is simply to
have the attesting witnesses examined, no matter what their testimony may be."
1586
§§ 1285-1321] WITNESS DENYING EXECUTION.
1302
Accordingly, the failure of the attester, /rom lack of memory, to prove execu-
tion, is not in itself any breach of the present rule; and though the pro-
ponent has still to prove the execution in some sufficient way, he is no longer
hampered by any rule about attesting witnesses.'
For the same reason, the attester's positive denial of the facts of execution,
contradicting the statements implied or expressed in his attestation, leaves
the proponent still free to prove by other testimony, if he can, the facts of
due execution ; a permission demanded not only by principle but also by
policy, inasmuch as the proponent would otherwise be defeated of his rights
by a corrupt attester.^
^ Besides the foUowiDg cases, the statutes and
cases in the next note are also authorities to the
same effect : England: 1728,Dormer u.Thurland,
2 P. Wms. 506, 510 (obscure); 1844, Burgoynec.
Showier, 1 Roberts. Eccl. 5, lo (even if they for-
get, the execution is assumed) ; 1848, Leach's
Goods, 12 Jur. 381 ; United States: 1843, Laza-
rus V. Lewis, 5 Ala. 457, 459 ; 1861, Hall v. Hall,
38 id. 131, 133 ; 1895, Barnewall v. Murrell, 108
id. 366, 18 So. 831 ; 1857, Eeinhart v. Miller, 22
Ga. 402, 416 ; 1895, Gillis v. Gillis, 96 id. 1, 14,
23 S. E. 107 ; 1896, Kelly v. Sharp S. Co., 99 id.
393, 398, 27 S. E. 741 ; 1898, Buchanan v. Gro-
cery Co., 105 id. 393, 31 S. E. 105 ; 1902, Web-
ster V. Yorty, 194 111. 408, 62 N. E. 907 ; 1832,
Giiffith V. Huston, 7 J. J. Marsh. 385, 387 ; 1840,
Quimby v. Buzzell, 4 Shepl. 470, 473 ; 1829, Bus-
sell V. Coffin, 8 Pick. 143, 150 ; 1840, Dewey v.
Dewey, 1 Mete. 349, 353 (if recollection were re-
quired, "the validity of a will would depend not
upon the fact whether it was duly executed, but
whether the testator had been fortunate in secur-
ing witnesses of retentive memories ") ; 1879,
Abbott V. Abbott, 41 Mich. 640, 542, 2 N. E.
810 ; 1890, Mays v. Mays, 114 Mo. 536, 540, 21
S. W. 921 (failure to testify to sanity) ; 1896,
Morton v. Heidom, 135 id. 608, 37 S. W. 504 ;
1823, Marshall v. Gougler, 10 S. & E. 164, 167 ;
1832, Miller's Estate, 3 Rawle 312, 318 ("The
law is not so unreasonable as to declare that the
grantee must lose his right wherever they have
lost their memory " ; here, of a will) ; 1855, Welch
•i;. Welch, 9 Rich. 133, 136 (that one subscribing
witness cannot recollect the facts, immaterial,
if otherwise proved ; here, by the other sub-
scribers) ; 1897, Gable v. Eauch^ 50 S. C. 95, 27
S. E. 555 (where two of three witnesses admitted
their signatures, but could not recollect the cir-
cum.stances) ; 1839, Clarke v. Dunnavaut, 10
Leigh 13, 22 (quoted supra).
* Englamd: 1683, Hudson's Case, Skinn. 79
(two of the three swore that he was incapable
and his hand was guided ; bat others proved
the will) ; 1694, Dayrell v. Glascock, ib. 413 ;
Austin V. Willes, BuUer N. P. 264 ("notwith-
standing the three witnesses all swore to its not
being duly executed, the devisee obtained a ver-
dict"); Pike V. Bradbury, ib. 264 ("the first
and second witnesses denying their hands, it
was objected he should go no farther ; for it was
argued that, though, if you call one witness who
proves against you, you may call another, yet if
he prove against you too, you can go no farther ;
1587
but the Chief Justice admitted him to call other
witnesses to prove the will, and he obtained a
verdict ") ; 1729, Bice v. Oatfield, 2 Stra. 1096
(the preceding case, cited in argument, was ap-
parently approved) ; 1762, Lowe v. JoUiife, 1
W. Bl. 365 (besides the attesting witnesses
themselves, "a dozen servants of the testator
all unanimously swore him to be utterly incapa-
ble of making a will," etc.); 1779, Mansfield,
L. C. J., in Abbot v. Plumbe, 1 Doug. 216
("It was formerly doubted whether if the sub-
scribing witness denies the, deed, you can call
other witnesses to prove it," but no longer) ;
1790, Ley o. Ballard, 3 Esp. 173, note (neither
of the attesters had seen the execution ; Kenyon,
Jj. C. J. : "If they disavow having seen it exe-
cuted, other persons who saw it executed, or can
prove the party's handwriting, may be called " ;
so, too, even if they "prove contrary to what
their attestation puiport, namely, that the party
did not execute it") ; 1798, Kenyon, L. C. J.,
in Jordaine v. Lushbrook, 7 T. R."599, 604 (ap-
proves Lowe V. Jollifie) ; 1815, R. v. Harring-
worth, 4 M. & S. 350 (Ellenborough, L. C. J. ,
" His testimony is indeed not conclusive, for . . .
the party may go on to prove him such [untrust-
worthy] and may call other witnesses to prove
the execution")"; 1815, Bootle v. Blundell, 19
Ves. Jr. 494, 501, 507 (Eldon, L. 0. : " If they
had all denied their attestation, but it could be
proved by circumstances that they unjustly de-
nied it, the will might be proved to be a good
will by other circumstances"). United States :
1895, Barnewall v. Murrell, 108 Ala. 366, 18 So.
831 ; 1853, Rogers v. Diamond, 13 Ark. 474,
483 ; Cal. C. C. P. 1872, § 1941 ("If the sub-
scribing witness denies or does not recollect the
execution of the writing, its execution may still
be proved by other evidence ") ; 1858, Rash ■».
Purnel, 2 Harringt. 448, 454 ; 1848, Talley v.
Moore, 5 id. 57 ; 1857r Reinhart v. Miller, 22
Ga. 402, 416 ; 1895, Gillis w.. Gillis, 96 id. 1, 14,
23 S. E. 107 (execution may be otherwise proved,
no matter how the attesting witness testifies ;
see quotation, supra) ; Ida. Rev. St. 1887,
§ 5994 ; la. Code 1897, § 4619 ; 1827, Booker
V. Bowles, 1 Blackf. 90 ; 1854, Barry v. Hoff-
man, 6 Md. 78, 87 ; 1834, Whitaker v. Salis-
bury, 15 Pick. 534, 544; 1878, Martin v.
Perkins, 56 Miss. 204, 209 (their testimony as to
incapacity does not conclude the propounder of a
will) ; Mont. C. C. P. 1895, § 3232 ; Nebr.
Comp. St. 1899, § 5917; 1830, Jackson v.
§ 1303 PREFEEENCE FOR ATTESTING WITNESS. ■ [Chap. XL
§ 1303. Same : Discriminations (Refreshing Recollection ; Implied Attesta-
tion Clause ; Impeaching One's Own 'Witness, or One's Own Attestation ; Illi-
nois Rule admitting only Attesting Witnesses in Probate). (1) May not
the attester, though not actually recollecting the circumstances, adopt his
signature as a record of past recollection, and base his testimony on the
faith of his signature, which he would not have put there had he not wit-
nessed the execution ? That he may, is clear by the principle of Eecol-
lection (^ante, § 737), under which this mode of testifying has already been
considered.
(2) If the witness' testimony on the stand wholly fails through lack of
recollection, may not his signature and attestation, on being proved by
himself or some one elsCj suffice as an implied testimony to the facts of due
execution ? To use the attestation in this way is to use a hearsay (i. e.
extrajudicial) statement, but for this case a well-recognized exception to the
Hearsay rule exists. Moreover, the question arises how far this implied
statement can be regarded as covering all the facts essential to due exe-
cution ; both these questions, involving the existence and scope of a Hear-
say exception, are better considered under that head (post, §§ 1510-1512).
Whether the failure of recollection excuses from calling the witness is a
different question (post, § 1315).
(3) If the attester, when called by the proponent, denies the facts of exe-
cution, in contradiction to his attestation, is it not a violation of the rule
against impeaching one's own witness to allow the proponent to go on to
prove due execution in spite of the attestor's testimony ? It is not, in truth ;
but even if it were a case coming under the rule, it would be excused by the
exception for a necessary or compulsory witness (ante, § 917).
(4) If the supposed attester denies the genuineness of his signature, then, it
this denial be taken as true, he is no attesting witness, and, the document
thus not being attested, it is not necessary to call him as such (on the prin-
ciple of § 1292, ante) ; the proponent may therefore take this as true and go
on to prove execution by other testimony.^ However, if the document is one
Cluistman, 4 Wend. 278, 282 ; 1861, Orser v. Gratt. 439, 461 ; 1877, Lamberts v. Cooper, 29
Orser, 24 N. Y. 51, 52 ; 1862, Tarrant v. Ware, Gratt. 61, 67 (sanity ; witness who contradicts
25 iii. 42.5, note (qnoted, supra) ; 1862, Aubni'n his attestation is to be viewed with suspicion) ;
Seminary v. Calhoun, ib. 422, 425; 1832, 1878, Cheatham t>. Hatcher, 30 id. 56, 64 ; 1881,
Crowell V. Kirk, 3 Dev. 356, 358, per Ruffin, J.; Webb v. Dye, 18 W. Va. 376, 380 ; 1878, Jen-
Or. C. C. P. 1892, § 761 ; 1817, Pearson v. kins' Will, 43 Wis. 610.
Wightman, 1 Mill Const. 336, 340 (" It would In particular, the attester therefore need not
be a terrible consequence if such testimony were testify to a testator's sanity ; 1902, Se Wells, 96
not admissible; for how often and how easily Me. 161, 51 Atl. 868.
might witnesses be tampered with to deny their ^ 1792, Grellier v. Neale, Peake 146 (Ken-
own attestation?") ; 1850, Jones i). Arterburn, yon, L. C. J.: "The subscribing witness not
11 Humph. 97, 99 (attesting witness denying having seen the deed executed, it is the same as
signature ; signature may be proved) ; 1860, if there was no witness at all ; and in that case
Eose V. Allen, 1 Coldw. 23, 27 (even if all deny the handwriting may be proved by another wit-
due execution, the fact may be otherwise ness"); 1805, Burrowes v. Lock, 10 Vea. Jr.
proved) ; 1869, Alexander u. White, 7 id. 126, 470, 474 (" If he denies that [i. e. execution in
128 (same) ; 1891, Simmons o. Leonard, 91 his presence], other evidence is admissible from
Tenn. 183, 190, 18 S. W. 280 (fact of attestation circumstances, as where there were no attesting
denied) ; Tex. C. Cr. P. 1895, § 793; Utah Rev. witnesses") ; 1811, Fitzgerald v. Elsee, 2 Camp.
St. 1898, § 3404 ; 1846, Pollock v. Glassell, 2 635 (indenture of apprenticeship ; the witness
1588
§§ 1285-1321] WITNESS DENYING EXECUTION. § 1304
required by law to be attested as a condition of validity, then it is of no use
to the proponent to take the attestor's denial as true, for, if he does, the
document is invalid for lack of attestation; and he must therefore (and
may, under the principle of § 1302) go on if possible to prove the signature's
genuineness by other testimony.^
(5) That the attester, if he admits his signature, may not testify to the
falsity of his own attesting statements (for example, by denying the identity
of the maker) was a notion at one time much urged, in virtue of the supposed
rule nemo allegans turpitudinem suam audiendus est ; but this doctrine never
received final sanction {ante, § 528).
(6) In Illinois, by an odd statutory rule of early local origin, on an appeal
to a Superior Court from a refusal to grant probate of a will, any other testi-
mony to execution may be produced, but on an appeal from a grant of probate,
only the attesters' testimony will be received.^
§ 1304. Number of Attesters required to be Called. The object of
placing more than one attestation upon a document, whether at the parties'
voluntary instance or by requirement of law, is ordinarily not to demand the
combined testimony of all at the trial, but merely to provide by way of
caution a number of witnesses, so that the contingencies of death, removal of
residence, and the like, may be guarded against and one witness at least may
be expected to be available. If a statute expressly required the document
to be "proved" by a specified number (post, § 2048), the case would clearly
be different. But a main object in statutes requiring attestation as an ele-
ment of validity is to surround the .act of execution with certain safeguards ;
the object of securing evidence for litigation is a secondary one. So far,
therefore, as such an object exists, it can hardly be implied to have in view
anything beyond what is above noted, i. e. a precautionary supply of persons
from whom a testifier is likely to remain available in spite of the accidents
that might have totally destroyed the supply if there had been but one person
provided in advance. No doubt such statutes often negative the above view
by expressly providing not only that a certain number shall attest, but also
that all of the required number shall be called to testify. But, in the absence
had not seen the execution ; handwriting al- attesters was denied, and the requirements of
lowed ; Lawrence, J. : " It is to be treated as if attestation might have been in reality fulfilled),
there were no attesting witness ") ; 1810, Lemon ^ 1840, Walker v. Walker, 3 111. 291 ; 1860,
V. Dean, ib. 63fi note, LeBlanc, J. (note ; same Duncan v. Duncan, 23 id. 365 ; 1867, Andrews
ruling) ; 1812, M'Craw v. Gentry, 3 id. 232 (the v. Black, 43 id. 256 (explaining the principle
witnesses had seen the defendant acknowledge, fully) ; 1875, Crowley v. Crowley, 80 id. 469 ;
but not sign the note; held, that it was as if 1895, Hobavt v. Hobart, 154 id. 610, 615, 39
there were no attesting witness j and thus the N. E. 581 (the rule excluding other testimony
defendant's acknowledgment sufficed). on appeal from grant of probate does not apply
^ 1808, Phipps V. Parker, 1 Camp. 412 (the to other testimony to testator's signature where
witness had not seen the execution ; Ellen- an attesting witness is dead) ; 1898, Thompson
borough, L. C. J. : "If it was not executed v. Owen, 174 id. 229, 51 N. E. 1046 ; 1901,
in his presence, the conclusion of law is that it Illinois Masonic Orphans' Home v. Gracy, 190
[a policy] was never executed as a deed, although id. 95, 60 N. E. 194 ; 1902, Webster v. Yorty,
it may have been signed by these two directors. 194 id. 408, 62 N. E. 907 ; 1902, lie Tobin, 196
. . . Now appearing certainly not to have been id. 484, 63 N. E. 1021 ; 1902, Kohley's Estate,
executed in the presence of the witness, I think 200 id. 189, 65 N. E. 699. The relevant statu-
it must be considered as invalid" ; distinguish- tory clauses are printed in part post, § 1304.
ing Lowe o. Jolliffe, where the truth of the
1589
§ 1304 PEEFEEENCE FOR ATTESTING WITNESS. [Chap. XL
of express statements, such a requirement is not properly to be implied ; and
it was not implied in common-law practice :
1765, Lord Camden in Doe v. Hindson, 1 Day 41, 51:^ " The Legislature set up these
witnesses as a guard, to protect the testator from fraud in that critical minute when he
was about to execute his will. . . . There is a gi-eat difference between the method of
proving a fact in a Court of justice and the attestation of that fact at the time it happens.
. . . The new thing introduced by this statute [of Frauds] is the attestation ; the method
of proving this attestation stands as it did upon the old common-law principles. Thus,
for instance, one witness is sufficient to prove what all three have attested ; and, though
that witness must be a subscriber, yet that is owing to the general commou-law rule that,
where a witness has subscribed an instrument, he must be always produced, because it is
the best evidence. This we see in common experience ; for after the first witness has been
examined, the will is always read. . . . This [above distinction], I am afraid, has not
always been attended to ; but some persons have been apt to reason upon this point as if
the statute had directed the will to be proved by three credible witnesses ; forgetting the
difference between the subscription and the proof oi that subscription."
1834, Tindal, C J., in Wright v. Tatham, 1 A. & E. 3, 23 :. " It may be observed, how-
ever, that the Statute of Frauds did not look primarily to the mode of proving the will
when contested, but to the security of the testator at the time of the execution of the
will ; ^ the statute intending that three witnesses should be in the nature of guards or
securities, to protect him in the execution of his will against force or fraud or undue in-
fluence. The proof of the will by the three witnesses, supposing it should afterwards
come in contest, is only an incidental and secondary benefit, derived from that mode of
attestation. ... It is well settled that in an action at law it is sufficient to call one only
of the subscribing witnesses, if he can speak to the observance of all that is required by
the statute.''
This was the view of the common law. For attested documenis in general,
the rule has always been that but one attester need be called.^
For wills, the rule was clearly the same in England iu the common-law
Courts.* But in Chancery (while the precedents were not harmonious) the
practice seems to have been to call all the required number of attesters, —
at least unless the Chancellor's discretion was exercised to the contrary.*
^ Reprinted s. v. Hinds v. Kersey, Bum's suffices, "unless they show such characters of
Ecclesiastical Law, IV, 118. fraud as would make it necessary to produce the
2 So also. Temp. G. II, Allen «. Hill, Gilbert rest") ; 1763, Buller Nisi Prius, 264 ("The de-
257, 261. visee need produce only one [witness], if that
3 1733, Holdfast v. Bowling, 2 Str. 1254 ; one prove all the requisites," the opponent
1843, Thomas v. Wallace, 5 Ala. 268, 275 ; 1898, being at liberty to call the othera) ; 1816,
Sowell V. Bank, 119 id. 92, 24 So. 585 ; 1888, Eldon, L. C, in Bullen ». Michel, 4 Dow 297,
O'SuUivan v. Overton, 56 Conn. 102, 105,14 331 (at common law "they usually call only one
Atl. 300 ; 1896, Cooper v. O'Brien, 98 Ga. 773, witness [to a will], . . . leaving it to the other
26 S. E. 470 ; 1815, Allen v. Trimble, 4 Bibb side, if they think proper, to call the other wit-
21 ; 1800, Collins u. Elliott, 1 H. & J. 1 : 1829, nesses") ; 1834, Wright v. Tatham, 1 A. & E.
Russell V. Coffin, 8 Pick. 143, 150 ("unless 3, 22 (see quotation mpra). Contra: 1748,
there is some reason to believe or suspect that Townsend v. Ives, 1 Wils. 216 (" It is a rule
the instrument has been forged") ; 1851, Gelott that all the witnesses, if living, must be cxam-
V. Goodspeed, 8 Cush. 411 (" in ordinary cases, ined to prove the will").
where the mere formal execution " is involved) ; ■> 1748, Ogle v. Cook, 1 Ves. Sr. 177 (all re-
1851, White v. Wood, ib. 413 (although the quired, by Hardwicke, L. C. ) ; 1752, Grayson v.
other witness was in court) ; 1860, Melcher v. Atkinson, 2 id. 454, 460 (all to be accounted
Flanders, 40 N. H. 139, 157; 1809, Shepherd for; here two testified, and the third was be-
V. Goss, 1 Overt. 487 ; 1855, Harrell u. Ward, yond seas ; but here the fact of the execution
2 Sneed 610, 612 ; 1849, Jesse v. Parker, 6 Gratt. in his presence was not otherwise proved ; the
67, 61, 64. plaintiff conceded that all must be called if
* Ante, 1726, Gilbert, Evidence, 103 (one available, but claimed that " it was formerly
1590
§§ 1285-1321]
NUMBER TO BE CALLED.
1304
lu the United States,^ several forms of the rule find representation. The
rule in perhaps most jurisdictions is to call but one attester, for probate in
not required to have all the three witnesses
examined ; it was first established by Lord
Talbot in this Court") ; 1760, Bin field v. Lam-
bert, 1 Dick. 337 (Clarke, M. R., said "that
tiie will could not be said to be strictly proved
agreeably to the statute ; but his consuience being
satisfied," lie would not require all, but would
execute the trusts of the will ; here the third
witness could not be found) ; 1780, Bird v. But-
ler, ib. 337, 11. (same facts, though the search not
so thorough ; trusts carried out, but the will not
declared proved) ; 1789, Powel v. Cleaver, 2 Bro.
C. C 499, 504 (in practice, but not by absolute
rule, all are to be called) ; 1793, Fitzherbert v.
Fitzherbert, 4 id. 231; 1800, Carrington v. Payne,
5 Yes. Jr. 404, 411, semble (all required) ; 1815,
Bootle V. Blundell, 19 id. 494, 500, 505, 509
(Eldon, L. C. : "The rule of this Court requir-
ing that to establish a will of real estate all
the three witnesses shall be examined is not by
any means, as it has been represented, a techni-
cal rule " ; for after ordering an issue at law the
testimony there may be reviewed, and before
granting the devisee an issue at law, the wit-
nesses may be examined; the general rule ad-
mitting nece-ssary exceptions, and perhaps not
applying where the will is not wholly, but only
partially in question); 1829, Winchelsea i'. Wau-
chope, 3 Russ. 441, 453, semble (all are not in-
variably required) ; 1831, Tathani v. Wright, 2
Russ. & Myl. 1, 8, 16 (the Court of Chancery
may inform its conscience as it thinks best and
may send an issue back to be tried by calling all
the attesting witnesses ; yet Brougham, L. C, at
p. 30, speaks of " the rule which makes it impera-
tive to call all the witn&sses to a will, " but re-
gards it as applying only to a devisee who
moves to establish a will, and not where an heir
moves to set one aside).
Canada: P. E. L St. 1873, c. 21, § 24 (quoted
post, § 1310).
« Ala.: Codel897, §4276 ("nust be proved
by one or more ") ; 1845, Bowling v. Bowling, 8
Ala. 538 (where probate is contested, all must
be produced ; where not contested, one "might
be sufficient " ; no statute at this time) ; Ariz. :
Rev. St. 1887, §§ 978, 983 (in uncontested pro-
bate, the Court ' ' may admit " on the testimony
of one witness ; if contested, "all the subscrib-
ing witnesses " available must be produced) ;
Ark. : Stats. 1894, § 7416 (wills ; all required
by implication; quoted post, § 1320); 1843,
Campbell v. Garven, 5 Ark. 485, 491, semble
(both necessary); 1876, Janes u. Williams, 31
id. 175, 180 (statute applied ; proof by calling
one witness only, in.suffieient) ; Cal. : G. C. P.
1872, §§ 1308, 1315 (in uncontested wills, by one
subscribing witness only, if he testifies to the
execution "in all particulars as required by
law, and that the testator was of sound mind
at the time of its execution " ; in contested
wills, by all) ; Commissioners' amendment of
1901 (quoted post, § 1310); Colo.: Annot.
Stats. 1891, § 4669 ("It shall be the duty
of each and every witness to any will" to ap-
1591
pear and testify) ; § 4670 (the will is to be
allowed if "it shall satisfactorily appear by
the testimony of two or more of the .subscrib-
ing witnes.ses " that it was duly executed) ;
Cmm. . 1869, Field's Appeal, 36 Conn. 277
(one suffices for a will) ; Del. : 1838, Eash v.
Pumel, 2 Harriugt. 448 (all must be called, on
an issue out of Chancery to establish a will, be-
cause the judgment is final ; otherwise, in trying
a will at common law in ejectment, where the
heir, if defeated, may again bring ejectment) ;
D. a : Conip. St. 1894, c. 70, § 26 (wills of
personalty ; if uncontested, " it shall not be
necessary to examine all the witnesses, unless
they voluntarily attend " ; but proponent must
make oath to mode of obtaining will and to non-
knowledge of any other will) ; Code 1901, §§ 131,
132 (quoted post, § 1310) ; Ma. : Rev. St. 1892,
§ 1805 (at a probate contest, "such witnesses
as the parties may produce shall be examined ") ;
Ca. : Code 1895, § 3281 (one suffices, for pro-
bate in common form ; all are necessary, in
solemn form) ; 1855, Walker v. Hunter, 17 Ga.
364, 390, 407 (not clear) ; 1874, Evans v. Arnold,
52 Ga. 169, 179 (all required) ; Ida. : Rev. St.
1887, § 5311 (wills ; like Cal. 0. C. P. § 1315,
but " all " is misprinted as " and ") ; § 5306 (like
Cal. C. C. P. § 1308) ; III. : Rev. St. 1874, c. 148,
§ 2 (a will is to be signed by two or more credible
witnesses, "two of whom, declaring on oath or
affirmation, before the county court . . . shall
be sufficient proof of the execution ") ; § 3 (" It
shall be the duty of each and every witness to
any will . . . executed in this State, as aforesaid,
to be and appear before the county court on the
regular day for the probate ... , to testify of
and concerning the execution and validity of the
same") ; § 5 (if the county judge is an attester,
he shall make oath in circuit court, and then " if
there are other witnesses to said will, the county
Court shall take their evidence ... as in other
cases " ) ; § 13 (in case of refusal of probate by
a county court, the proponent may support it
in the circuit court " by any evidence competent
to establish a will in chancery") ; 1851, Kigg v.
Wilton, 13 111. 15, 19 (at the trial of a will-issue
out of chancery, the attesting-witness need not
be called, because his probate deposition is usa-
ble ; (see post, § 1305) ; but, semble, at the pro-
bating both must be called) ; 1886, SePage, 118,
id. 576, 578, 8 N. E. 852 (one suffices to "estab-
lish " a will) ; 1897, Harp v. Parr, 168 id. 459, 48
N. E. 113, semble (same); 1898, Slinghotf v.
Bruner, 174 id. 561, 51 N. E. 772 (same);
1902, Kohley's Estate, 200 id. 189, 65 N. E.
699 (the two must be produced) ; Ind. : Rev. St.
1897, § 2805 (a will "shall be proven by one or
more of the attesting witnesses ') ; 1871, Haves
V. West, 37 Ind. 21, 26 (one suffices) ; Kan.: Gen.
St. 1897, c. 110, § 12 ("The Court shall ijause
the witnesses to the will " to come and testify ) ;
Ky. : 1819, Lindsay o. M'Cormacli, 2 A. K.
Marsh. 229 (one suffices ; the later rulings are
the same) ; 1820, Harper v. Wilson, ib. 465 ;
1821, Overall v. Overall, Litt. Sel. C. 501, 503 ;
§ 1304
PEEFERENCE FOR ATTESTING WITNESS. [Chap. XL
common form, and to call all the required number, for probate in solemn
form. But statutes loosely drawn have introduced some confusion. How-
1S22, Turner v. Turner, 1 Litt. 101, 103 ; 1823,
Elinondorffw. Cannkhael, 3 id. 473, 479 ; 1829,
Hull V. Sims, 2 J. J. M. 509, 511 ; 1833, Carrico
V. Neal, 1 Dana 162 {if "direct, positire, and
explicit"); 1840, Swift v. Wiley, 1 B. Monr.
114, 116 ; 1850, Cornelison w. Browning, 10 id.
425, 427 ; Li. : C. Pr. 1894, § 933 (a will is to
be proved " by the number of witnesses required
for that purpose by law ") ; Me. .■ Pub. St. 1883,
c. 64, §§ 5, 7 (when there is no objection, a will
may ba probated on the testimony of " any one
or more " of the witnesses ; where the original
cannot be obtained, execution may be proved by
the subscribing witnesses or by "any other evi-
dence competent"); 3fl.: Pub. Gen. L. 1883,
Art. 93, §§ 331, 334 (all are to be examined,
for wills of realty ; but not for uncontested wills
of personalty) ; St. 1890, c. 416, St. 1892, e. 81-
(quoted post, § 1310) ; Mass. : 1815, Sears v. Dil-
lingham, 12 Mass. 353, 362 (all are required) ;
1820, Brown v. Wool, 17 id. 68, 73 (same);
Miss. St. 1901, c. 242, Rev. L. 1902, o. 136, § 2
(for uncontested wills, probate may be granted
upon the testimony of one witness only, by
affidavit) ; Mich. : Comp. L. 1897, § 9279 (in
uncontested probate " the Court may in its dis-
cretion" act upon "the testimony of one of the
subscribing witnesses only"); 1879, Abbott v.
Abbott, 41 Mich. 540, 543, 2 N. W. 810 ("Our
statute does not in terms require all the sub-
scribing witnesses to be sworn on a "contest, ex-
cept inferentially in the Probate Court. This
req'iirement, if it exists, is only implied ") ;
1879, Fraser v. Jennison, 42 id. 203, 223, 3
N. W. 882 (question not decided) ; Afinn. : Gan.
St. 1894, § 4436 (for uncontested wills the " tes-
timony of one of the subscribing witnesses only "
suffices in the Court's discretion); Miss.: Annot.
Cjde 1892, § 1816 (a will must be proved
" by at least one of the subscribing witnesses ") ;
1843, Evans v. Evans, 10 Sm. & M. 402, 403
(all required) ; 1850, Kirk v. State, 13 id. 406
(for personalty, only one is required to attest ;
hence, only one need h} called) ; 1850, Raglaud
V. Green, 14 id. 194, 199 (lanil ; all must be
called) ; 1853, Crusoe v. Butler, 36 id. 150, 169
(land ; only one need be called ; preceding cases
not cited) ; Mo.: Rev. St. 1899, §§ 4619, 4620
(all are required by implication to be called) ;
1834, Graham v. O'Fallon, 3 Mo. 507, 510 (one
suffices) ; Mont: C. C. P. 1895, §§ 2330, 2343
(like Cal. C. C. P., §§ 1308, 1315); ^ebr.:
Couip. St. 1899, § 2655 (if not contested, the
Court "may in its discretion grant probate thereof
on the testimony of one of the subscribing wit-
nesses only"); Nev. : Gen. St. 1885, §2685 (in
uncontested wills, the Court may admit on the
" testimony of one of the subscribing witnesses
only'') ; § 2687 (if contested, "all of the sub-
scribing witnesses," if availabla, must be
examined) ; St. 1897, c. 106, §§ 17, 19 (repro-
duces the foregoing sections) ; JV. H. : Pub. St.
1891, c. 187, § 6 (a non-contested will may be
probated on the testimony of one witness,
' ' though the others are living and within pro-
cess of the Court ") ; N. J. : 1806, Den i\
Allen, 2 N. J. L. [24] 32 (not clear) ; 1902,
Ward o. Wilcox, 64 N. J. Eq. 303, 51 Atl.
1094 (even for contested wills, one witness may
suffice) ; N. M. : Comp. L. 1897, § 1982 (the
judge shall "examine the attesting witnesses to
the will ") ; N. Y. . C. C. P. 1877, § 2618 (two
witnesses required, i. e. all required by law to
attest ; but the contestant may require the exami-
nation of all); 1822, Jackson v. Legrange, 19
John. 386 (one of the witnesses is enough, "if
he can prove the execution " ; "but if the wit-
ness cannot prove these requisites, the other
witnesses ought to be called"); 1825, Dan v.
Brown, 4 Cow. 483, 489 (one witness held suffi-
cient ; though here one of the other two
names was not known) ; 1825, Jackson v.
Luquere, 5 id. 221, 225 (one witness sufficient) ;
1828, Jackson v. Vickory, 1 "Wend. 406, 412 (one
is sufficient, "if he can prove its perfect execu-
tion," otherwise the others must be called) ;
1859, Hunt V. Johnson, 19 N. Y. 279, 293 (one
suffices, if he can prove the necessaiy facts) ;
1862, Tarrant v. Ware, 25 id. 425, note (all re-
quired) ; 1862, Auburn Seminary w. Calhoun, ib.
422, 425 (same); 1867, Cornell wl "WooUey, 42 id.
( Keyes) 378, 379 (one suffices) ; N. C. : Code
1883, § 2148 (two, i. e. all required to attest,
must be called) ; Oh. : Rev. St. 1898, § 5926
(Court is to cause "the witnesses to such will "
to be examined) ; N. D. : Rev. C. 1895, § 6295
(uncontested will ; the Court " may in its dis-
cretion grant probate ... on the testimony of
one only of the subscribing witnesses) ; § 6296
(contested will ; " all the subscribing witnesses "
are required); Okl. : Stats. 1893, § 1189 (pro-
bate of uncontested will may be granted on
testimony "of one of the subscribing witnesses
only") ; § 1193 (if a will is contested, "all the
subscribing witnesses," if available, must be
produced and examined) ; Or. : C. C. P. 1892,
§ 761 (one is sufficient) ; S. C. ; St. 1839, Gen.
St. 1882, c. 61, §§ 1870, 1871, Rev. St. 1893,
§§ 2003, 2004, Code 1902, §§ 2491, 2492 (for
probate in common fonn, one witness is suffi-
cient; in solemn form, all are required) ; 1798,
Hopkins v. DeGraffenroid, 2 Bay 187, 192 (one
suffices ' ' though if they are all alive it is best
to produce them"); 1803, Hopkins v. Albert-
son, 1 Brev. 240, 2 Bay 484 (one suffices) ; 1818,
Howell I). House, 2 'Mill Const. 80, 82 (one
suffices) ; S. D. : Stats. 1899, § 6899 (uncon-
tested will ; Court may admit to probate on
testimony of one only) ; § 6903 (contested will ;
allmustbe "produced and examined"); Tenn. :
St. 1789, c. 23, § 1, Code 1896, § 3904 (""ft'rit-
ten wills with witnesses thereto, when not con-
tested, shall be proved by at least om; of the
subscribing witnesses, if living ; and every last
will and testament, written or nuncupative, when
contested, shall be proved by all the living wit-
nesses, if to be found, and by such other per;ons
as maybe produced to support it ") ; 1812, Alien
V. Allen, 2 Overt. 172 (under St. 1784 and 1789,
the production of one witness suffices, where the
1592
§§ 1285-1321] NUMBEE TO BE CALLED. § 1305
ever, even where the entire number of those required to attest must be
called, no more need be called, even though still others have in fact attested.'
From the above requirements of the present rule, the following doctrines
must be distinguished : (1) By the substantive law prescribing the elements
of a valid execution, it may be necessary to prove signing, delivery, presence of
the maker, and the like. Now, if the present rule in a given jurisdiction re-
quires but one attester to be called, and if he is unable to testify to all these
elements, the present rule is satisfied, but the elements of the execution are
not yet made out ; so that the proponent may have to call others to prove the
remaining facts of his case.* This, however, is not because of the present
rule, but because otherwise the requirements of his particular case under the
substantive law are not fulfilled. It is to this that the common expression
refers, in the rulings above cited, that " one witness suffices, provided he
can prove the requisites of a valid execution."
(2) Where a statute requires that execution be "proved" by a certain
number of witnesses, that number must be called, and each must presumably
testify to aU the elements of a valid execution. But that is merely a rule
of Quantity {post, § 2048), and has nothing to do with the Preferential
rule. The requirement may be, for example, that two witnesses prove exe-
cution ; but these two may be any competent persons, whether or not they
are the ones who have attested the document, and whether or not the docu-
ment is attested at all. Statutes of this sort obtain in a few jurisdictions
for proof of written wills, and in many jurisdictions for nuncupative wills.®
§ 1305. Same : Rule Satisfied -when One Competent Witness testifies by
Deposition or Affidavit. Supposing the rule in a given jurisdiction to require
only one witness to be called to furnish testimony, what amounts to such
furnishing of testimony ? Is it necessary that he should actually take the
stand at the trial ? It is of course essential that he should be competent to
testify.^ But, assuming him competent, may he not testify by deposition,
other claims a privilege as interested, the will only is required it the other is unavailable, i. e.
being contested); 1838, Crockett ii. Crockett, in effect, both must be called or accounted for);
Meigs 95 (by St. 1789, all the witnesses are re- Wyo. : St. 1891, c. 70, chap. Ill, § 3 (quoted
quired ; semble, not so before) ; 1850, Jones v, post, § 1310).
Arterburn, 11 Humph. 97, 103 (will of personalty ; ' 1898, Lambr. Lippincott, 115 Mich. 611, 73
all must be produced) ; Tex. : Eev. Civ. Stats. N. W. 887, semble (not more than the law re-
1895, § 1900 ("one of the subscribing wit- quires need be called) ; 1857, Shirley w. Fearne,
nesses" suffices) ; Utah: Rev. St. 1898, § 3792 33 Miss. 653, 664 (deed; one only being re-
(like Cal. C. C. P. §§ 1308, 1315) ; Vt. : Eev. quired to attest, one only need prove) ; 1903,
St. 1839, Stats. 1894, § 2362 (for wills uncon- Lorts v. Wash, 175 Mo. 487, 75 S. W. 95. Not
tested, one suffices) ; 1856, Dean w.Dean, 27 Vt. decided: 1903, O'Connell w. Dow, 182 Mass. 541,
746, 749 (if contested, all should be called) ; 66 N. E. 788 (whether all must be called, not
1866, Thornton v. Thornton, 39 id. 122, 151 (all decided ; here the trial Court's ruling that the
must be called ; the Chancery rule followed) ; fifth must be called, being in court, was held not
Va. : 1846, Pollock v. Glassell, 2 Gratt. 439, improper). Compare § 1309, post.
461 (one at law, two in chancery or probate) ; ' See, for an illustration, Burrowes v. Lock,
1877, Lamberts v. Cooper, 29 id. 61, 67, sem- 10 Ves. Jr. 470, 474.
hie (all required) ; Wis. : Stats. 1898, § 3788 ' That they do not require the production
(for uncontested probate, " one of the subsorib- of attesting witnesses, see the citations ante,
ing witnesses only" suffices); 1897, Jones' §1290. The general subject of these statutes
Will, 96 Wis. 427, 70 N. W. 685 (holding (1) is examined post, §§ 2048-2051.
that the statute applies only to uncontested * 1897, Houston v. State, 114 Ala. 15, 21 So.
wills, (2) that by the common law one witness 813 (where the one called had subscribed by
1593
§ 1305 PREFEKENCE FOR ATTESTING WITNESS. [Chap. XL
if the circumstances are such that a deposition would otherwise be admis-
sible ; i. e. supposing the requirements of the Hearsay rule satisfied, which
allow the use of a deposition or of testimony at a former trial on certain con-
ditions {fost, §§ 1373-1384, §§ 1401-1414), is such a mode of testifying
sufficient to satisfy the present rule that the testimony of one attesting wit-
ness must be offered ? There should be no doubt that it is sufficient ; the
only objection can come through the Hearsay rule, and this is by hypoth-
esis satisfied :
1834, Tindal, C. J., in Wright v. Tatliam, 1 A. & E. 3, 22 (not requiring a surviving
■witness to be called, where the testimony at a former trial of another deceased subscribing
witness was ofiered) ; "[If the offer had been merely to prove the handwriting of B., the
deceased subscribing witness, the survivor P. would have been preferable.] Such testi-
mony might fairly be considered as evidence of a higher and better nature than mere pre-
sumption arising from the proof of the witness' handwriting. . . . The effect, however,
of B.'s examination is not merely to raise a presumption ; it is evidence as direct to the
point in issue, and as precise in its nature and quality, as that of P. when called in
person."
Wherever, then, by the general principles of the Hearsay rule, a deposition
or former testimony would be receivable, its use will satisfy the present rule
requiring an attesting witness to furnish testimony.^ In some jurisdictions,
a statute expressly provides for the use of attesting witnesses' prior testimony
or depositions in testamentary cases {'post, §§ 1411, 1413, 1416).^ The prac-
tical bearing of this principle is that otherwise the providing of testimony by
deposition or former testimony would be insufficient, and some other attest-
ing witness would have to be called or accounted for.
An affidavit is ordinarily not receivable, under the Hearsay rule ; but stat-
utes occasionally provide for their employment by attesting witnesses in tes-
tamentary cases {post, § 1710); in such instances, they would presumably
satisfy the present rule.
§ 1306. Same: When all Witnesses unavailable in Person, One Attestation
only need be Authenticated. Under the principles of § 1320 and § 1505, j9os<,
when none of the attesters are available in person, the execution may be
evidenced by authenticating the signature — i. e. the extrajudicial statement
— of the attester; and in many jurisdictions (as noted in § 1S2Q, post) the
execution must be so evidenced. In that mode of proof, then, the same
doctrine of numbers ought to apply, as regards the number of attestations
to be authenticated, i. e. if in the particular jurisdiction the orthodox com-
mon-law rule obtains (under § 1304) that one attester's testimony suffices,
mark only, and could neither read nor write), competent ; in those eases it is conceded that
The same result is implied in those rulings ( post, lie would be incompetent to satisfy the rule by
§ 1316) which allow proof of the witness' sig- testifying at the trial.
nature where he has become incompetent since ^ But a deposition testifying to the execution
attestation. A blind witness' testimony would of a specific document must ordinarily be made
apparently suffice (post, § 1316). with the document iefore the deponent : ante,
Distinguish the question of substantive law § 1185.
whether, under a statute requiring attestation of ' Distinguish the question post, § 1312,
a will by "credible " witnesses, an attestation is whether the deposition of a witness out of the
valid if the attester subsequently becomes in- jurisdiction miist be taken.
1594
§§ 1285-1321] NUMBEK TO BE CALLED. § 1306
then proof of one attestation also suffices ; or, if the rule (under § 1304) re-
quires the testimony of all the attesters to he furnished, then the attestations
of all must he authenticated. The reason is that the attestation is in effect
the extrajudicial statement of the attester to the fact of due execution, ad-
mitted under the Hearsay exception {post, § 1505), and being admissible so
far as concerns the Hearsay rule, it is governed, so far as concerns the pres-
ent rule, by the general principle in regard to the number of attesters
required to be called. In short, if one attester suffices on the stand, one
attester suffices when allowed to speak extrajudicially in the attestation-
clause.
Accordingly, for attested documents in general, the rule (though perhaps
once otherwise ^) has long been generally settled to be that proof of a single
attester's signature suffices,^ just as the calling of a single attester to the
stand suffices. For wills, however, the differences of practice obtaining in
regard to the number to be called to the stand {ante, § 1304) are also notice-
able liere in regard to the number of attesting signatures to be proved, i. e.
in some jurisdictions one suffices, in others all are required, with varying dis-
tinctions.* It will be noted that there is no objection on principle to the
former rule merely from the fact that the attestation of the others is also an
element in the validity of execution (as of a will) ; for the express or implied
statement of the attester is {'post, § 1511) that all the requisites of execution
took place, which includes an assertion that the other attestations were made
as they purport to be.
The question does not frequently occur for decision, because now by stat-
ute, in the instance of most common occurrence — the proof of a will — , an
express rule as to the number of signatures to be proved is usually laid
down.*
1 1694, Smart v. "Williams, Comi). 247 (the * 1814, Jackson u. Burton, 11 John. 64
two witnesses being dead, "if there be full evi- (" There is no fixed rule requiring proof of the
dence to prove one of their hands, and any evi- hand of all the witnesses " ; here one was suf-
dence that endeavors have been used to find one ficient) ; 1822, Jackson ». Legi-ange, 19 id. 386,
to prove the other's hand, it is sufficient "). 389 (if there is no witness who can prove all the
* In the following list, this is the doctrine requisites of execution, semhle, the hands of all
maintained, except where otherwise noted : 1744, or of the rest must be proved) ; 1825, Jackson v.
Omychund v. Barker, 1 Atk. 21, 49, Hardwicke Luquere, 5 Cow. 221, 225 (same, because "the
L. C. ; 1798, Adam v. Kerr, 1 B. & P. 360 ; testator may have acknowledged his signing to
1848, Doe v. Twigg, 5 U. C. Q. B. 167, 170; the witnesses separately"); 1828, Jackson v.
1843, Thomas v. Wallace, 5 Ala. 268, 275 ; 1897, Vickory, 1 "Wend. 406, 412 (approving the pre-
Smith V. Keyser, 115 id. 455, 22 So. 149 ; 1863, ceding) ; 1837, Bethel v. Moore, 2 Dev. & B.
"Webb V. Wilcher, 33 Ga. 565, 568, semble ; 311, 315, semble (all required); 1803, Hopkins
1829, Fitzhugh v. Croghan, 2 J. J. Marsh. 429, v. Albertson, 2 Bay 484, 1 Brev. 240 (all required,
434 ; 1852, Burnett v. Thompson, 13 Ired. 379, since one may be forged, "in which case it would
381 ; 1798, Hopkins v. De Graffenreid, 2 Bay only be witnessed by two witnesses, which is not
187, 191 ; ] 803, Turner v. Moore, 1 Brev. 236 ; an execution " according to law ; Bay, J, , diss. ) ;
1804, Manigault v. Hampton, 1 Brev. 394, sem- 1817, Pearson v. Wightman, 1 Mill Const. 336,
hh (though lapse of time here excused the proof 344 nemble (all required) ; 1821, Sampson v.
of oue of the hands) ; 1823, Young v. Stockdale, White, 1 McC. 74 semble (one sufiices) ; 1850,
2 McC. 531 (handwritiug of both witnesses re- Jones v. Arterburn, 11 Humph. 97, 103 (will of
quired, but that of one was here dispensed with personalty ; handwriting of all, if feasible, must
as not attainable) ; 1827, Sims v. De Graffen- be proved).
reid, 4 id. 253 (signature of both witnesses re- * These statutes, however, deal also with sev-
quirerl) ; 1882, Stebbins v. Duncan, 108 U. S. eral matters involving proof by signature, and
32, 2 Sup. 313. accordingly have been for convenience collected
VOL. u. — 38 1595
§ 1308
PREFEEENCE FOE ATTESTING WITNESS. [Chap. XL
(g) " Or shovr his Testunony to be Unavailable."
§ 1308. General Principle of Unavailability. The notion of a rule of
preference among witnesses (ante, § 1286) is that the preferred witness
must be used if he can he had. Accordingly the rule's force is spent if it
appears that his testimony is not available. Conversely, the attester, if
he is not produced, must be shown unavailable.
This general notion of unavailability has seldom been broadly defined in
judicial opinion. The law upon the subject has usually been enunciated by
rulings specifying particular situations as exempting from .production: but
the following passage is comprehensive :
1842, Woods, J., in Dunbar y. Madden, 13 N. H. 311, 814: "It is believed to be the
well-established general rule of law on this subject, that proof of the handwriting of the
witness may be given in all cases when from physical or legal causes it is not in the power
of the party to produce the witness at the trial." ^
§ 1309. All the Attesters must be shown Unavailable. The rule prefers
an attester as a witness ; the rule's force is therefore not spent until it ap-
pears that no attester can be had ; in other words, if there is more than one
attester, all must be shown unavailable before resort can be had to other testi-
mony. This is ancient and settled doctrine ; ^ though it must be noted that,
where the law requires a certain number to attest, no more than that num-
ber need be accounted for (on the analogy of § 1304, ante), even though more
than the required number have attested.^
in a single pliice {post, § 1320), to which refer-
ence maj' be made.
Whether also the maker's signature must be
jivoved, is a different question, dealt with post,
§§ 1320, 1513.
^ It would perhaps be more accurate to add
that it must be beyond the party's power to
produce the witness ' ' for purposes of examina-
tion," for this more clearly includes the case of
a witness rendered incompetent by interest.
Other broad phrasings are as follows: 1779,
Abbot V. Plumbe, 1 Doug. 216 (Mansfield,
L. C. J. : " unless it appears that his attend-
ance could not be procured" ; BuUer, J. : " un-
less some reason can be shown for his absence ") ;
1813, Logan, J., in Hart v. Coram, 3 Bibb 26
("in a situation which renders his examination
impracticable"); 1806, Taylor, J.; in Baker w.
Blount, 2 Hayw. 404 (" divers exceptions,
founded on necessity ") ; 1831, Clarke v. Court-
ney, 5 Pet. 319, 344 (Story, J. : " dead, or can-
not be found, or is without the jurisdiction,
or otherwise incapable of being produced ") ;
1814, Hill V. Hall, 2 Overt. 241 (absence "must
be accounted for in some satisfactory manner ").
1 1744, Omychund n. Barker, 1 Atk. 21, 49
Hardwicke, L. C. ; 1764, Forbes v. Wale, 1 W.
Bl. 532 (one dead, but the other living); 1790,
Wallis V. Delancey, 7 T. R. 266, note (proof
that the other witness was in foreign parts,
required before going to handwriting) ; 1848,
Doe V. Twigg, 5 V. C. Q. B. 167, 170 ; 1898,
1596
Howard v. Russell, lOt Ga. 230, 30 S. E. 802 ;
1827, Booker v. Bowles, 1 Blackf. 90; 1829,
Chambers ». Handley, 3 .1. J. Marsh. 98 ; 1845,
"Woodman v. Segar, 12 Shepl. 90, 92 ; 1826,
Jackson ». Gager, 5 Cow. 383, 385 ; 1830, Jack-
son V. Christman, 4 Wend. 278, 283 ; 1785,
Davison v. Bloomer, 1 Ball. 123 ; 1835, Congre-
gation ti. Miles, 4 Watts, 146, 149. The stat-
utes quoted post, § 1310, usually mention this
part of the rule.
^ 1887, Snider v. Burks, 84 Ala. 53, 57, 4 So.
225 (will ; where two of the three were dead, and
proof of their handwriting was allowed). The in-
teresting question here is this : Supposing only
one attester to be required to be called as a wit-
ness (ante, § 1304), and supposing him to have
no recollection when called, may his signature
then be proved as sufficient ? This question really
is : Has the rule been satisfied as to one witness ?
If so, the rule's force is spent. Now it would
seem that at least the witness should, if called,
also testify ; i. c it is immaterial (ante, § 1302)
how he testifies, so far as the rule's application
to himself is concerned ; but so far as going on
to other evidence is concerned, the other attest-
ers must be first tried if the fii-st attester is
unavailable ; and the present notion of un-
availability of all as a condition precedent must
be thought to include not merely an excused
non-production, but also a production which
through failure of recollection has resulted in
no testimony at all. Accordingly, if the fii-st
§§ 1285-1321]
EXCUSES FOE NOT CALLING.
§ 1310
§ 1310. statutory Enumerations of Causes of Unavailability. Before con-
sidering the common-law doctrines as to sufficient causes of unavailability, it
may be noted that statutes ^ have frequently dealt expressly with the same
one, though having no present recollection,
adopts his attestation as a record of past recol-
lection, he has in effect testified {ante, §§ 745,
754) ; but if he does not, he is a nullity as a
wituess, and the remaining attesters must be
tried before other evidence can be used. Com-
pare here the principles of §§ 1302, 1.303, ante,
and 1315, post.
^ The statutes deal with the causes noted
in the ensuiug sections, but to avoid repeti-
tion are placed together here. The judicial
rulings noted in the later sections, §§ 1311-
1318, include those made in application of
these statutes to specific causes of non-avail-
ability ; but rulings merely construing the
statute generally are placed here with the stat-
ute ; for statutes providing that the deposition
of a witn -ss out of the State, etc., may be used,
see post, § 1411, under Depositions : Canada :
N. Br. St. 1898, c. 35, § 39, replacing Consol.
St. 1877, u. 52, §§ 33, 34 ("when all the wit-
nesses to any will are dead, or some are dead
aud the others reside out of the province, or the
whole do so reside," proof "by viva voce testi-
mony of the handwriting of the witnesses
and the testator" sufiSces ; but on proof in
solemn form and whenever the judge may deem
necessary, a commission may be ordered to take
the testimony of "the witnesses to the will"
and others ; bat for witnesses in the county,
the judge shall himself attend to take their
evidence, if "such witness is by reason of age,
illness, or other cause unable to travel") ; N.
Se. Rev. St. 1900, e. 158, § 18 ("when the Wit-
nesses live out of the province, or more than
thirty miles distant from the registry, or by
reason of age or illness are unable to appear and
give evidence in court," their depositions are
receivable) ; P. E. I. St. 1873, e. 21, § 24 (" If
the only living witness to any will be out of the
jurisdiction, proof of the fact of the death of the
other witness, and of the handwriting of either
of such witnesses, together with that of the tes-
tator, unless he be a marksman, in which case
jiroof of his signature may be dispensed with,
shall be sufficient evidence," unless proof in
solemn form is required, " in which case a com-
mission may issue and evidence may be taken
under the same in such manner as the surrogate
may direct"); United States: Alabama:
Code 1897, § 4276 ("[a will] must be proved
by one or more of the subscribing witnesses, or
if they be dead, insane, or out of the State, or
have become incompetent since the attestation,"
then by handwriting) ; § 4277 ("If none of the
subscribing witnesses to such will are produced,
their insanity, death, subsequent incompetency,
or absence from the State, must be satisfactorily
shown before proof of the handwriting of the
testator or of any of the subscribing witnesses
can be received ") ; 1895, Bavnewall v. Murrell,
108 Ala. 366, 378, 18 So. 831 ("if any one or
more " is unavailable, the secondary grade may
be resorted to ; misconstruing the statute and
misunderstanding Snider v. Burks, cited supra,
§ 1309) ; Arizona: Eev. St. 1887, § 983 (in con-
tested wills, all must be jiroduced "who are
present in the county and who are of sound
mind " ; if none reside in the county, other tes-
timony may be admitted) ; Arkansas : Stats.
1894, "§§ 7415, 7416 (quoted post, § 1320) ; Cali-
fornia: C. C. P. 1872, § 1308 (in uncontested
wills, " the testimony of one of the subscribing
witnesses " suffices) ; § 1315 (in contested wills,
" all the subscribing witnesses who are present
in the county and who are of sound mind must
be produced and examined ; and the death, ab-
sence, or insanity of any of them must be satis-
factorily shown to the Court ; if none of the
subscribing witnesses reside iu the county at the
time appointed for proving the will, the Court
may admit the testimony of other witnesses to
prove the sanity of the testator and the execu-
tion of the will ; and, as evidence of such execu-
tion," it may admit evidence of handwriting) ;
Commissioners' amendment of 1901, § 1307
(replacing the former § 1308 ; in uncontested
probates, the testimony of one subscribing wit-
ness suffices; if at the hearing "none of the
subscribing witnesses resides in the county, but
the deposition of one of them can be taken else-
where, the Court must direct it to be taken, and
may authorize a photographic copy of the will
to be made and presented to such witness on his
examination, who may be asked the same ques-
tions with respect to it and the handwriting of
himself, the testator, and the other witness, as
would be pertinent and competent if the orig-
inal will were present. If neither the attend-
ance in court nor the deposition of" any of the
subscribing witnesses can be procured, the
Court may admit the testimony of any other
witness as provided in § 1317 ") ; § 1317 (re-
placing the former § 1315 ; in contested probates,
the provisions of the former § 1315 are followed,
down to " proving the will " ; then the following
is inserted: "or if any subscribing wituess is
incompetent, or is unable to recollect the facts
as to the sanity of the testator or the execution
of the will " ; then at the end is inserted : " the
Court may also authorize a deposition and a,
photograph as in C. 0. P., § 1307, supra" ; for
the validity of these amendments, see ante,
§ 488) ; Colorado: Anuot. Stats. 1891, § 4676,
("in all cases where any one or more of the
witnesses to any will shall die or remove to
some distant country, unknown to the parties
concerned, or cannot be found, so that his or
her testimony cannot be procured," other evi-
dence is allowable) ; Colii/mWa (District) : Code
1901, § 131 ( " all the witnesses " to a will "who
are within the District and competent to testify
must be produced and examined, or the absence
of any of them satisfactorily accounted for ") ;
§ 132 (in wills of realty, for the testimony of a
resident witness "unable from sickness, age, or
1597
§ 1310
PEEFEREXCE FOR ATTESTING WITNESS. [Chap. XL
subject, especially for will- witnesses. These statutes are often obscurely
phrased, and seldom enumerate more than two or three causes for excuse.
other cause, to attend court, the register of wills
may with such will attend upon said witness
aud take his testimony. If the testimony of
resident attesting witnesses or witness to such
will shall have been taken, and any other such
witness to said will shall reside out of the Dis-
trict, but within the United States, it shall be
sufficient to prove the signature of such witness
so out of the District. If the sole witne.sses to
such wQl shall be out of said District as afore-
s;iid, or if one or more should be within the
United States and one or more be in some for-
eign country, then it shall be suQicieut to take
the testimony of any one or all within the
United States, as the Court may determine,
and to prove the signatures of those whose testi-
mony is not retjuired to be taken. If all such
witnesses shall be out of the United States, then
it shall be sufficient to take the testimony of
such of them as the Court may require, and to
prove the signature or signatures of the others " ;
the testimony of those out of the District to be
taken by commission, with the will annexed) ;
Georgia: Code 1895, §§ 5244, 5245 ("if from
any cause the witness cannot be produced or
sworn," he need not be ; when witnesses are
"dead, insane, incompetent, or inaccessible, or
being produced, do not recollect the transaction,"
then other evidence is allowable) ; § 3282 (they
must be produced if "in existence and within
the jurisdiction of the Court"); Idaho: Rev.
St. 1837, § 5311 (like Gal. C. C. P., § 1315) ;
Illinois : liev. St. 1874, c. 148, § 6 (where " any
one or more of the witnesses of any will . . . shall
die, be insane, or remove to parts unknown to
the parties concerned, so that his or her testi-
nionj' cannot be procured," handwriting and
other evidence may be resorted to) ; Bidiana :
Rev. St. 1897, § 2805 (if " dead, out of the
State, or have become incompetent from any
cause," then proof by handwriting may be
used) ; § 2806 (all the witnesses must be shown
unavailable by death, etc., before proving sig-
natures) ; Kansas: Gen. St. 1897, c. 110," § 13
(if "any witness" has "gone to parts un-
known," or has become "incompetent " since
execution, the will may be allowed " upon such
proof as would be satisfactory, and in like man-
ner as if such absent or incompetent witness
were dead"); Maryland: Pub. Gen. L. 1888,
Art. 93, §§ 334, 337 (examination, in wills
of realty, is required "if their attendance can
be had" ; for wills executed out of the State
and not required there to be recorded, the death
of the witness exempts from using his deposi-
tion) ; St. 1890, c. 416, St. 1892, c. 81, amend-
ing § 334 ("all the witnesses thereto shall be
examined if their attendance can be had " ; the
depositions may be taken "of any or all of the
witnesses thereto who from any cause cannot
conveniently attend to the office of said register
of wills, wherever he may find such witnesj or
witnesses, whether within the State of Mary-
land or beyond its jurisdiction " ; and further
the Orphans' Court "may in their discretion
1598
accept proof of any will in the manner pre-
scribed in § 337 of this article, when the attend-
ance of the witnesses thereto cannot in the
judgment of the said Court be conveniently
had") ; St. 1892, c. 504, amending § 337 ("If
any witness or witnesses to any will shall die
before probate thereof, or if at the time of the
probate of any nill any witness or witnesses
shall be non-residents or beyond the jurisdiction
of the Orphans' Court, or if for any other reason
their presence cannot be secured, then proof by
any credible witness of the signature of the tes-
tator or of the signature of any such deceased or
absent witness shall have the same effect " as if
the witness had testified in court to execution) ;
Michigan: Comp. L. 1897, § 9280, How. § 5803
("If none of the subscribing witnesses shall re-
side in this State," other testimony may be ad-
mitted or proof of handwriting) ; id. § 9266, How.
§ 5789 ("their subsequent incompetency, from
whatever cause it may arise," shall not prevent
probate of a will otherwise proved) ; 1897, Sul-
livan V. Sullivan, 114 Mich. 189, 72 N. W. 135
(How. § 5803 refers to living witnesses ; in How.
§ 5789, "incompetency, from whatever cause it
may arise," includes sickness, death, etc.) ;
Minnesota: Gen. St. 1894, § 4437 ("If none of
the subscribing witnesses reside in this State,"
the Court may admit other evidence) ; Missis-
sippi: Annot. Code 1892, § 1816 (one at least
must prove, " if alive and resident in the State,
and competent to testify ; but if none of the
subscribing witnesses can be produced," then
other evidence may be used) ; Missouri : Rev.
St. 1899, § 4620 (when the attesting witnesses
are " dead, insane, or their residences un-
known, " then other evidence may be used) ;
Montana: C. C. P. 1895, § 2343 (like Cal. G. C.
P. § 1315) ; Nebraska: Comp. St. 1899, § 2656
(" If none of the subscribing witnesses shall re-
side in this State " at the time, the Court may
in discretion " adjnit the testimony of other wit-
nesses"); §2641 ("subsequent incompetency,
from whatever cause it may arise," shall not
prevent probate, if other proof is made) ; § 5917
(if a subscribing witness is absent from the
county, other evidence is allowable) ; Nevada:
Gen. St. 1885, c. 19, § 18, sec. 2685 (in uncon-
tested wills, "the testimony of one of the sub-
scribing witnesses only " suffices) ; ib. § 20, sec.
2687 (iu contested wills, all who "are present
in the county, and who are of sound mind,"
must be examined; "and the death, absence,
or insanity of any of them shall he satisfactorily
shown to the Court") ; ib. § 21, sec. 2688 ("If
none of the subscribing witne.sses reside in the
county," other testimony is admissible) ; St.
1897, c. 106, §§ 17, 19 (reproduces §§18, 20, of
Gen. St. 1885 ; but § 21, sec. 2688, therein is
now omitted) ; St. 1903, c. 6 (amends § 17 of
St. 1897, c. 106, by adding that whenever the
witness "resides at a distance of more than 25
miles " from the place of trial, his affidavit to
due execution and sanity shall suffice instead of
calling him iu person) ; New Hampshire : Pub.
§§ 1285-1321]
EXCUSES FOR NOT CALLING.
§ 1310
Whatever were the intentions of the legislators, it would be unfortunate to
be obliged to construe the statutory enumeration as exhaustive; and this
the Courts are apparently not inclined to do.^ The statutes, therefore, leave
St. 1891, c. 187, § 12 (if attesting witnesses
" become inuonipetent from any cause," proof
may be made by " other satisfactory evidence " ) ;
New Mexico: t'onip. L. 1897, § 1982 (witnesses
shall be examined "if their attendance is ob-
tainable" ; "if not," evidence of signatures,
etc., is admissible) ; New York: C. C. P. 1877,
§§ 2618, 2619, 2620 (will-witness must be
called, if " within the State and competent and
able to testify '' ; death, lunacy, or other in-
competency, or not being found after due dili-
gence, exempt absolutely ; but of one within
the State and disabled by age, sickness, or in-
firmity from attending, the deposition must be
taken, if he is able ; and for one absent from
the State, a commission must issue if by due
diligence his evidence may be had ; that the
witness "has forgotten the occurrence" also is
an excuse) ; §§ 2539, 2540 (if the witness is ill
or in another county, the witness must be ex-
amined where he is, or before the surrogate of
the other county) ; North GaroUna : Code 1883,
§ 2148 (will-witness must be called " if living,"
but if " any one or more " are dead, or reside
out of the State, or are insane, or otherwise in-
competent to testify, then proof of handwriting
suffices) ; NoHh Dakota : Eev. C. 1895, § 6296,
(witnesses "who are within the State and are
competent and able to testify" must be pro-
duced) ; §6297 ("Before the presence of a wit-
ness . . . can be dispensed, with, it must be
shown by aifidavit or other competent evidence
to the satisfaction of the Court that he is dead
or disqualified, or that he cannot after due dili-
gence be found within this State, or if within
the State that he is so aged, sick, or infirm that
his presence cannot safely he required ") ; Ohio :
Eev. St. 1898, § 5927 (if "any witness is gone
to parts unknown," or if " the witnesses to a
will " have become incompetent, or if "the tes-
timony of any witness cannot for any reason be
obtained within a reasonable time," then the
Court may give probate "upon such proof as
would be satisfactory, and in like manner as
if such absent or incompetent witness were
dead"); Oklahoma: Stats. 1893, § 1193 (all of
the witnesses " who are present in the county,
and are of sound mind," must be produced ;
' ' and the death, absence, or insanity of any of
them must be satisfactorily shown to the Court.
If none of the subscribing witnesses reside in
the coimty, and are not present at the time ap-
pointed for proving the will," other testimony
may be admitted) ; Oregon: C. C. P. 1892,
§ 761 (attesting witness must be called "if he
be living and within the State and can tes-
tify "1 ; Rhode Island: Gen. L. 1896, c. 210
§ 15 (non-contested will may be proved on the
evidence of executors, if neither attesting wit-
ness is a resident of State) ; South Carolina:
Gen. St. 1882, c. 61, §§ 1870, 1871, Code
1902, §§ 2491, 2492 (on probate of a will in
common form, " death or removal from the
State" suffices; in solemn form, it suffices
if he is "dead or insane"); South Dakota:
Stats. 1899, § 6903 (witnesses " who are present
in the county, and are of sound mind must be
produced and examined ; and the death, ab-
sence, or insanity of any of them must be satis-
factorily shown to the Court. If none of the
witnesses reside in the countj', and are not
present at the time appointed," then other tes-
timony is admissible) ; Tennessee: Code 1896,
§ 3904 (wills ; if not contested, proof suffices by
one witness "if living"; if contested, by "all
the living witnesses if to be found"); Texas:
Rev. Civ. Stats. 1895, § 1900 (" If all the wit-
nesses are non-residents of the county, or those
resident of the county are unable to attend
court, " the deposition of one suffices ; if none
are living, then evidence of handwriting is ad-
missible) ; Utah: Kev. St. 1898, § 3792 (like
Cah C. 0. P. § 1315); Vermont: Stats. 1894,
§ 2363 (will-witness ; if none reside in the State
at the time of t]ie testator's death, then other
evidence is receivable) ; Washington : C. &
Stats. 1897, § 6103 ("When one of the wit-
nesses to such will shall be examined, and the
other witnesses are dead, insane, or their resi-
dence unknown, then such proof shall be taken
of the handwriting of the testator, and of the
witnesses dead, insane, or residence unknown,
and of such other circumstances as would be
sufficient to prove such will ") ; § 6104 (" If it
shall appear, to the satisfaction of the Court,
that all the subscribing witnesses are dead, in-
sane, or their residence unknown, the Court
shall take and receive such proof of the hand-
writing of the testator and subscribing wit-
nesses, to the will, and of such other facts and
circumstances as would be sufficient to prove
the will"); Wisconsin: Stats. 1898, § 3788
(" If none of the subscribing witnesses shall re-
side in this State ... or if any one or more of
them shall have gone to parts unknown and the
Court shall be satisfied that such witness, after
due diligence used, cannot be found," then
other testimony is admissible) ; Wyoviing : St.
1891, c. 70, chap. Ill, § 3 (for contested wills,
' ' all the subscribing witnesses who are present
in the county and who are of sound mind must
be produced and examined ; and the death, ab-
sence, or insanity of any of them must be satis-
factorily shown to the Court ; if none of the
subscribing witnesses reside in the county," at
the time of probate, others may be admitted ;
and "as evidence of the execution, it may ad-
mit proof of the handwriting of the testator and
of the subscribing witnesses or any of them ").
" 1849, Holmes v. Holloman, 12 Mo. 536
(heirs claimed privilege as parties ; production
excused ; the statutory exemptions for death,
etc., held not to be taken as " expressio unius
exclusio allerius, but are merely a codification
of what was already the common law, and a
recognition of the principle upon which second-
1599
§ 1310
PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
the broad principle of the common law untouched, and merely confirm or
correct its precedents.
§ 1311. Causes of TTnavailabiUty ; (1) Death; (2) Ancient Document. (1) If
there is to be any excuse at all for not producing the attester, it is clear that
death supplies it; and this is universally accepted, although the earlier
reports show traces of a rigor not recognizing even this exemption.^
(2) Where a document purports to be so old that attesters cannot be sup-
posed to be yet alive, the same ground for exemption exists. An " ancient "
document, in this sense, has long been defined by a fixed rule, i. e. a document
purporting to be thirty years old. This rule applies not only to documents
in general,^ but also to wills.^ Not only is the production of the attester
excused, even though he is alive and available,* but the execution is upon
certain other evidence assumed to have been valid ; in this aspect, the rule
for ancient documents, with the history of its peculiar limitation to thirty
years, is elsewhere examined (post, §§ 2137-2146).
§ 1312. Same: (3) Absence from Jurisdiction. A person not within the
jurisdiction is not compellable by the Court's process to appear, and therefore
is in effect unavailable as a witness :
1842, Woods, J., in Dunbar v. Madden, 13 N. H. 311, 313 : " The reason is that the
process of the Court cannot reach the witness effectively in a foreign government or
ary evidence may he admitted") ; 1850, Jones
V. Arterburn, 11 Humph. 97, 99.
1 1673, Phillips v. Crawly, Freeman 83 (death
sufficient) ; 1740, Henley v. Phillips, 2 Atk. 48
(same) ; 1748, Grayson v. Atkinson, 2 Ves. Sr.
454, 460 (Hardwicke, L. C. : " If the witness
was dead, it might possibly be sufficient ; that is
the act of God") ; 1796, Barnes v. Trompowsky,
7 T. R. 265 (death sufficient) ; 1874, Harris v.
Tisereau, 52 Ga. 153, 163 (Code § 2431 does not
prohibit pi-obate of will on the death of witnesses,
except by Probate Court) ; 1890, Maxwell v.
Hill, 89 Tenn. 584, 15 S. W. 253 (death suffioe.s).
2 England: 1788, R. v. Farringdon, 2 T. R.
466 (certificate of pauper settlement required
to be attested); 1795, Chelsea Water Works v.
Cowper, 1 Esp. 275 (bond); 1798, Marsh v.
CoUnett, 2 id. 665 (Yates, J., ex rel. Kenyon,
L. C. J., ruled "that he would not break in
upon a rule so well established as that deeds of
30 years' standing proved themselves, by requir-
ing the suhscribing witness to be called ") ; 1828,
Doe V. Wolley, 8 B. & C. 22, 24 ("the principle
... is that the witnesses may be presumed to
have died " ; he need not he called, even if in
fact he is living) ; 1845, Lord Gosford v. Robb,
8 Ir. L. R. 217, 219, semble (per Pennefather, C.
J.); 1848, Doe v. Turnbnll, 5 U. C. Q. B. 129,
131 (even if the witne-ss is in fact alive) ; 1864,
Orseru. Vernon, 14 U. C. 0. P. 573, 5S7, semble;
United States: 1888, Allison v. Little, 85 Ala.
512, 516, 5 So. 221 ; Ga. Code 1895, § 5244 ;
1850, Settle v. Allison, 8 Ga. 201, 205 (even if
the witnesses are alive) ; 1876, Gardner v. Gran-
niss, 57 id. 539, 555 (same) ; 1858, Smith v.
Rankin, 20 111. 14, 23 (but not if the witness is
living) ; 1900, Cunningham v. Davis, 175 Mass.
213, 56 N. E. 2 (even if the witness is alive and
in court) ; 1874, Shaw v. Pershing, 57 Mo. 416,
421 (even though the witnesses were alive); 1808,
Jackson v. Blanshan, 3 John. 292, 295, 298,
semb!e (even where the witness is alive) ; 1826,
Jackson v. Thompson, 6 Cow. 178, 180 ; 1830,
Jackson v. Ghristman, 4 Wend. 278, 282 (even
where the witness is alive and available) ; 1840,
Northrop v. Wright, 24 id. 221, 228 (same) ;
1847, Willson «. Betts, 4 Den. 201, 212 ; 1793,
Jones V. Brinkley, 1 Hayw. 20 ; 1811, Garwood
V. Dennis, 4 Binn. 314, 326 ; 1823, McGennis v.
Allison, 10 S. & R. 197, 199 ("perhaps . . .
even if they were in full life") ; 1840, Edmon-
ston V. Hughes, Cheves 81, 84, semble; 1830,
Hinde v. Vatlier, 1 McLean 110, 116 ; 1835,
Winn V. Patterson, 9 Pet. 663, 674 (applicable
to all deeds of thirty years' standing, no matter
how proved).
s 1803, M'Kenire v. Eraser, 9 Ves. Jr. 5,
semble; 1817, Eancliffe v. Parkyns, 6 Dow 149,
202, semble; 1826, Doe t>. Passingham, 2 C.
& P. 440; 1826, Doe «. Deakin, 3 id. 402
(Vaughan, B. : "The rule of 30 years is founded
on the presumption that the witnesses are
dead ") ; 1828, Doe v. Wolley, 8 B. & C. 22 ;
1835, Doe o. Burdett, 4 A. & E. 1, 19 ("oven
were they all alive ") ; 1820, Duncan v. Baird,
2 N. & McC. 400, 408 (in the form of a presump-
tion of death).
* See the citations in the preceding notes.
Distinguish the following ruling: 1815, Man by
V. Curtis, 1 Price 225 (a receipt of 53 years be-
fore, offered as a hearsay statement against in-
terest, excluded on hearsay grounds, because the
writer was not shown deceased ; the authentica-
tion question apparently not decided).
1600
§§ 1285-1321]
EXCUSES FOR NOT CALLING.
§ 1312
country, and consequently it is not within the power of the party, legally speaking, to
produce him."
This general doctrine, though not positively established till the end of the
1700s,^ is now universally accepted ;2 although there is considerable difference
1 1673, Phillips v. Crawly, Freeman 83 (at-
tested deed ; " because they did not prove the
vpitnesses dead, nor that they were gone to sea
— though they alleged it — , it was not permitted
at first to be given in evidence") ; 1740, Henley
V. Phillips, 2 Atk. 48 (req^uiring stricter proof of
death for witnesses living long abroad, i. e. ap-
parently because if really alive their presence
abroad would not satisfy the rule) ; 1779, Cogh-
lan V. Williamson, 1 Doug. 93 (sufficient, where
the witness was shown to have gone to India five
years before); 1786, St. 26 Geo. Ill, c. 57
(where the attesting witness resides in the East
Indies, proof of the handwriting of witness and
party suffices) ; 1792, Holmes v. Pontin, Peake
99 (the witness was in France, and would not
come over ; Kenyon, L. C. J., referring to the
jireceding case : " It was considered as an inno-
vation lit the time ; but was found to be so bene-
ficial that it has since been adhered to") ; 1793,
Cooper V. Marsden, 1 Esp. 1 ("where it ap-
peared that he was abroad," sufficient) ; 1796,
Barnes v. Tiompowsky, 7 T. K. 265 ("If resid-
ing abroad, by sending out a commission to
examine him, or at least, by proving his hand-
writing, which last indeed is a relaxation of the
old rule, and admitted only of late years ") ;
1798, Adam v. Kerr, 1 B. & P. 360 (out of the
jurisdiction, sufficient).
2 England: 1802, Prince v. Blackburn, 2
Eiist 250 (here the general doctrine was for
the first time definitely established ; moreover,
mere absence, not necessarily domicile or per-
manent absence, suffices) ; 1809, Ward v. Wells,
1 Taunt. 461 (mere absence suffices) ; 1815, Hod-
nett V. Forman, 1 Stark. 90 (mere absence, with-
out a request by the party to the witness to
attend, sufficient) ; 1828, Kay v. Brookman, 3 C.
& P. 555 (proof of disappearance, with intention
of leaving the country, sufficient) ; 1840, Glubb
V. Edwards, 2 Moo. & Rob. 300, Maule, J. (here
the point was raised because the Conmion Law
Courts had recently been given power to issue a
foreign commission) ; United States : here the
statutes ante, § 1310, are to be compared ; the
fact of absence was sufficient in the following
cases, except as otherwise noted : Ala. : 1851,
Foote V. Cobb, 18 Ala. 585, 687 ("residing") ;
1881, Allred u. Elliott, 71 id. 224, 226 (resi-
dence in another county, insufficient; "absent
from the State when last heard from," suffi-
cient); 1884, Gnice v. Thornton, 76 id. 466,
473 ("absent from the State") ; 1890, Caldwell
V. Pollak, 91 id. 353, 359, 8 So. 546 ("resid-
ing"); 1897, Smith v. Keyser, 115 id. 455, 22
So. 149 ; Ark. : 1838, Brown v. Hicks, 1 Ark,
233, 242 (absence from home, to return in a few
months, insufficient) ; 1839, Wilson v. Eoyston,
2 id. 315, 327 (deed executed in another State ;
further evidence of witnesses' absence from juris-
diction required); 1860, Tatum v. Mohr, 21 id.
349, 352 ("being out of the jurisdiction " ; but
in fact he resided without) ; Cal. : 1859, Stevens
V. Irwin, 12 Cal. 306 (out of the county, not
sufficient) ; Haw. : 1856, Bullions v. Loring, 1
Haw. 209, 213 (residence out of the kingdom,
held here sufficient) ; III. : 1844, Wiley v. Bean,
6 111. 302, 305 (absence from the State, suffi-
cient) ; 1848, Mariner v. Saunders, 10 id. 113,
121 (residence in another State, sufficient) ;
Ind. : 1819, Jones v. Cooprider, 1 Blackf. 46
(residence in another State, sufficient) ; 1828,
Ungles V. Graves, 2 id. 191 (same) ; 1845, State
V. Bodly, 7 id. 355, 357 (same) ; 1881, Herbert
V. Berrier, 81 Ind. 1, 7 (will-statute ap]died);
la. . 1870, Ballinger v. Davis, 29 la. 512 (ab-
sence from the jurisdiction in unknown place,
sufficient) ; Ky. : 1812, M'Dowell v. Hall, 2 Bibb
610, 612 ; 1813, Hart v. Coram, 3 id. 26 ("in a
situation which renders his examination imprac-
ticable, as being absent in a, foreign country or
beyond the reach of the process of the Court or
the Court's control " ; here not shown on the
facts); 1815, Clarke v. Bartlett, 4 id. 201, 203
(residence in another State, sufficient) ; 1816,
Sentney v. Overton, ib. 445 (removal to an ad-
joining State, sufficient) ; 1817, M'Cord v. John-
son, ib. 531 (in an adjoining State on a transient
visit, insufficient, though perhaps not "actual
domicile " abroad would be necessaiy, and " long
absence " might suffice) ; 1817, Creighton v.
Johnson, Litt. Sel. C. 240 (transient absence in
the adjoining State, insufficient) ; 1820, Bowman
V. Bartlett, 3 A. K. Marsh. 86, 91 (" the absence
from a State, or rather his residing abroad," suf-
fices) ; 1822, Turner v. Turner, 1 Litt. 101, 104
("out of the State" ; sufficient in case of a will,
provided one witness has proved the will) ; 1829,
Kemper v. Pryor, 1 J. J. Marsh. 598 (removal
from the State, and diligent inquiry, sufficient) ;
Za. : 1819, Lynch v. Postlethwaite, 7 Mart. 69,
209 (absence from jurisdiction) ; ] 823, Grouse t'.
Duffield, 12 id. 539, 542 (same) ; 1825, Villere
V. Armstrong, 4 id. N. s. 21 ("left the State") ;
Me. : 1840, Emery v. Twombly, 5 Sliepl. 65 (ab-
sence suffices; even though they lived within 30
miles of the place of trial) ; Mass. : 1809, Dud-
ley V. Sumner, 5 Mass. 439, 444, 462, semble (ab-
sence from jurisdiction) ; 1814, Homer v. Wallis,
11 id. 309, 311 (same) ; 1851, Gelott v. Good-
speed, 8 Cush. 411 (same) ; 1860 Ela v. Edwards,
16 Gray 91, 95 (same) ; Miss. : 1838, Downs v.
Downs, 2 How. 915, 924 (gone from the juris-
diction, sufficient) ; Mo. : 1826, Little v. Cliau-
vin, 1 Mo. 626, 631 (residence out of the State,
sufficient) ; 1838, Maupin v. Trijilett, 5 id. 422
(in another county, not sufficient); 1843, Law-
less V. Guelbreth, 8 id. 139 (residence just over
the State line, sufficient) ; 1857, Clardy v. Rich-
ardson, 24 id. 295, 296 (residence oiit of the
State, sufficient) ; Nebr. : 1894, Jewell v. Cham-
berlain, 41 Nebr. 254, 59 N. W. 784 (absence
from the State suffices under Code § 343) ;
N. H. : 1835, Montgomery v. Dorion, 7 N. H.
1601
§ 1312
PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
of phrasing, even within the same Court's rulings, as to the sufficiency of
mere temporary absence, and not permanent residence, without the juris-
diction.
It is immaterial that the proponent knew of the witness' intended absence
and might have taken his deposition ; ^ though a collusive procurement of
the witness' absence would of course annul the excuse for non -production.*
But at least must not the proponent have sought to obtain (by commission
or otherwise) his deposition while in absence ? Can it be said that the
witness' testimony is unavailable, so long as it does not appear that his
deposition could not with due diligence have been procured ? The answer
to this was at first given in the negative, — that is to say, in the period
when the present excuse was with hesitation beginning to be accepted, this
proviso as to taking the deposition was insisted on.° But the extreme incon-
venience of sending abroad for the deposition was soon recognized as dispro-
portionate to the benefit obtained; and in most jurisdictions to-day^ no such
475, 483 (absence from jurisdiction) ; 1842,
Diinhar v. Madden, 13 id. 311, 313 (same);
N. a. : 1806, Baker v. Blount, 2 Hayw. 404
(the witness had fraudulently evaded process by
removing from the county ; held sufficient) ;
1826, Selby v. Clark, 4 Hawks 265, 273 (tem-
porary absence without change of domicile, held
usually not sufficient, because of the danger of
collusion ; but absence as a member of Congress,
sufficient ; permanent absence is always suffi-
cient); 1814, Allen v. Martin, 1 Law Eepos. 373
(" living beyond the process of the Court," held
sufficient) ; 1832, Crowell v. Kirk, 3 Dev. 355,
356, per Daniel, J. (that he "is abroad," is suf-
ficient) ; 1837, Bethel v. Moore, 2 Dev. & B. 311
(living in another State, sufficient) ; 1848, Ed-
wards V. Sullivan, 8 Ired. 302, 305 (same) ; Oh. .
1824, Clark v. Boyd, 2 Oh. 280 (57) (absence
from jurisdiction) ; 1858, Richards u. Skiff, 8 Oh.
St. 586 (same) ; Fa. : 1807, Englesu. Burlington,
4 Yeates 345 (will ; absence from jurisdiction) ;
1810, Clark v. Sanderson, 3 Binn. 192, 195
(bond ; " it is always to be understood that there
must be no fraud or collusion in getting the wit-
ness out of the way"); 1816, Hautz w. Rough,
I S. & R. 349 (residence without the county, not
sufficient) ; S. 0. : 1902, Swancey v. Parrish, 62
S. C. 240, 40 S. E. 554 (out of the jurisdiction,
sufficient) ; Term. : 1850, Jones v. Arterburn,
II Humph. 97, 99 (the statutory phrase, for con-
tested wills, "if to be found," includes absence
from the State, as exempting from production ;
but if his deposition has in fact been obtained,
it must be read) ; 1855, Harrel v. Ward, 2 Sneed
610, 613 (absence "for a. temporary purpose,
where the return of the witness within a limited
time is reasonably certain," insufficient ; though
not "as an inflexible rule," e. g. where the ab-
sence has been long, no collusion is suspected,
and diligence has been used) ; Tex. : 1854, Fra-
zler V. Moore, 11 Tex. 755 (absence from juris-
diction) ; TJ. S.: 1804, Jones v. Lovell, 1 Or.
C. C. 183 (removal from the jurisdiction, suffi-
cient) ; 1805, Wellford v. Eakin, ib. 264 (resi-
dence without, sufficient) ; 1809, Cooke v.
1602
"Woodrow, 5 Cr. 13 (witness going out of dis-
trict and last heard of in Norfolk ; hand-
writing not allowed, without proof of inability
to find at N.) ; Ft.: 1800, Pearl v. Allen,
1 Tyl. 4 (if residing within process of the Court,
he must be produced) ; Va. : 1 826, Nalle v. Fen-
wick, 4 Rand. 585, 589, semble (absence from the
State, sufficient ; but here it was alleged that
" every legal means had been taken to procure
their attendance"); 1827, Smith v. Jones, 6
Rand. 33, 37 ("removed from the State," suffi-
cient) ; W'is. : 1845, Garrison v. Owens, 1 Pinney
544 (absence from jurisdiction) ; 1863, Silver-
man V. Blake, 17 Wis. 213, semble (same).
3 1859, Jackson v. F. R. W. Co., 14 Cal. 18,
22 (lack of diligence, in not obtaining his testi-
mony before depart\jre, immaterial).
* See Clark v. Sanderson, Harrel v. Ward,
and other cases in note 2, supra.
^ 1748, Grayson v. Atkinson, 2 Ves. Sr. 454,
460 (Hardwicke, L. C. . "It is not necessary
to presume that it is out of your power to get
him if you please ; . . . you may have » com-
mission to examine the witness beyond sea ; for
in this Court you are not under the difficulty as
in a Court of law where it must be viva voce) ;
1793, Fitzherbert v. Fitzherbert, 4 Bro. C. C.
231 (witness in America ; commission required);
1796, Barnes v. Trompowsky (see quotation in
note 1, sup7'a).
' Besides the following cases, compare the
statutes ante, § 1310 ; England: 1751, Webb v.
St. Lawrence, 3 Bro. P. C. 640, 645 (witness in
Holland ; deposition not required) ; 1752, Banks
V. Farquharson, 1 Dick. 167 (same ; witness in
Scotland) ; 1790, WalUs v. Delancey, 7 T. R.
266, note (Kenyon, L. C. J. : "The expense of
sending out a commission would in many cases
be more than the value of the sum in dispute ") ;
1800, Carrington v. Payne, 5 Ves. Jr. 404, 411
(not required ; here, a will) ; United States:
Ala. Code 1897, § 4277 (the judge "may issue
a commission ") ; 1850, Settle v. Allison, 8 Ga.
201, 205 (not required) ; 1819, Jones v. Coop-
rider, 1 Blackf. 46 (not required) ; 1845, State
§§ 1285-1321]
EXCUSES FOE NOT CALLING.
§ 1312
proviso is recognized, and it is not necessary to have endeavored to obtain
the absent witness' deposition.^
The sufficiency of the 'proof of alsence at the time of trial has been the
subject of many rulings, which cannot profitably be treated as precedents ; "
the matter should be left entirely to the discretion of the trial Court.^ Per
one detail, however, there seems to have arisen a uniform rule, namely,
that the attester's residence abroad at the time of execution — or, in another
form, the occurrence abroad of the acts of execution and attestation — is
sufficient proof that the attester is out of the jurisdiction at the time of the
trial.!"
V. Bodly, 7 id. 355, 357 (same, even though the
opponent has had it taken ; but if the propo-
nent uses this deposition, it ia not improper to
reject proof by handwriting of the witness) ;
1870, Ballinger ». Davis, 29 la. 512 (not re-
quired) ; 1897, Allison's Estate, 104 id. 130, 73
N. W. 489 (same ; even though the deposition
is in fact obtainable, and was taken upon
other points, proof of handwriting suffices ; the
fact of non-residence allows the use of the
inferior grade) ; 1816, Sentney v. Overton, 4
Bibb 445, 447 (not required ; " though the
Court has the power to award the commission,
it has no power to coerce its execution ") ; 1820,
Bowman v. Bartlett, 3 A. K. Marsh. 86, 91
(same) ; 1822, Turner v. Turner, 1 Litt. 101,
104 (same) ; 1842, Dunbar v. Madden, 13 N". H.
311, 316 (that the witness' whereabouts is known,
immaterial) ; 1798, Irving v. Irving, 2 Hayw.
27 (not required) ; 1814, Allen v. Martin, 1 Law
Eepos. N. C. 373 (same) ; 1837, Bethell v.
Moore, 2 Dev. & B. 311, 314 (same) ; 1810,
Clark V. Sanderson, 3 Sinn. 192, 196 (same) ;
1792, Oliphant v. Taggart, 1 Bay 255 (hand-
writing of the witness usually sufficient ; but
here, the opponent producing an affidavit of the
witness denying it, a commission abroad was
ordered) ; 1804, Price v. M'Gee, 1 Brev. 373,
376 (not required) ; 1853, Brown v. Wood, 6
Rich. Eq. 155, 165, semble (same) ; 1807, Love
V. Peyton, 1 Overt. 255 (if in another domestic
State, deposition should be taken) ; 1809, Shep-
herd V. Goss, 2 id. 487 (same ; otherwise, if he
has "removed to some foreign nation") ; 1818,
Stumps. Hughes,, 5 Hayw. 93 (preceding cases
overruled ; residence in another domestic State
is sufficient, or absence there till the end of the
trial ; the delay, risk, and inconvenience of
sending for a deposition are unnecessary);
1818, Den v. Mayfield, ib. 121 (same ; here,
absence for 10 years, unheard from) ; 1838,
Crockett v, Crockett, Meigs 95 (neither sum-
mons by subpcena nor attempt to get deposition
is necessary) ; 1804, Jones v. Lowell, 1 Cr. C. C.
183 (not required) ; 1803, Rich v. Trimble, 2
Tyl. 349 (though residing without the State, if
his residence is known and is within reasonable
distance, deposition required) ; 1888, Denny v.
Pinney, 60 Vt. 525, 527, 12 Atl. 108 (the wit-
ness resided in another State, but had stayed for
a few days since action begun at the testatrix'
town in the State; deposition not required).
' Distinguish, however, the question whether
1603
the absent witness' deposition may be taken and
used. This depends on the general principles
applicable to the use of depositions, post §§ 1373,
1402, 1416 ; statutes sometimes expressly pro-
vide for the depositions of attesting witnesses.
So far as the deposition is thus allowable, its use
satisfies the present rule requiring the attester's
"testimony," as noted ante, § 1305.
' See the rulings passim in note 2, supra,
and also the following : 1790, Wallis v. Delancey,
7 T. R. 266, note (evidence that there had been
abroad in 1774, at the place of execution, a person
of the same name, held sufficient to show absence
now) ; 1849, Austin v. Eumsey, 2 C. & K.
736 (inquiry of the witness' parents, sufficient) ;
1842, Nicks v. Rector, 4 Ark. 251, 277 (depart-
ure from the State four years before, and no
news from him, sufficient) ; 1862, Delony v.
Delony, 24 id. 7, 11 (evidence of absence in-
sufficient on the facts) ; 1849, Gordon v.
Miller, 1 Ind. 531 (continued residence abroad
up to 15 months previous, held sufficient) ;
1838, Waldo v. Russell, 5 Mo. 387, 394 ("re-
ported and believed to have died in Texas,"
sufficient) ; 1802, Rhodes v. Rigg, 1 Or. C.
C. 87.
For the replies received while searching, as
evidence of diligence, see post, § 1789, ante,
§ 261. For the admissibility of the witness'
declarations of intent not to return, see post,
§ 1726.
3 1876, Jones v. Roberts, 65 Me. 273, 276.
^o 1864, Landers v. Bolton, 26 Cal. 393, 408
(attestation out of the State by non-residents,
sufficient, in the absence of evidence to show
that the witness ever was within the State) ;
1865, McMinn v. O'Connor, 27 id. 238, 245
(same) ; 1865, McMinn v. Whelan, ib. 300, 310
(same) ; 1817, Gibbs v. Cook, 4 Bibb 535, 536
(parties' residence abroad, etc., on the facts held
to raise presumption of witness' absence) ; 1820,
Bowman v. Bartlett, 3 A. ^ K. Marsh. 86, 91
(residence of the maker abroad, etc., on the facts
held to raise presumption of witness' residence
abroad) ; 1823, Grouse v. Duffield, 12 Mart. La.
539, 542 (execution abroad ; witnesses presumed
abroad); 1832, Barfield v. Hewlett, 4 La. 118,
119 (same) ; 1839, Valentine v. Piper, 22 Pick.
85 (" If the instrument was apparently executed
in a foreign country, we think that fact raised
a sufficient presumption that the subscribing
witnesses were not within the jurisdiction of the
Court ") ; 1857, Clardy v. Richardson, 24 Mo.
§1313
PEEFEEENCE FOE ATTESTING WITNESS. [Chap. XL
§ 1313. Same : (4) Absence in Unknown Parts. If tlie attester's where-
abouts cannot be discovered, he is practically unavailable ; and this (though
historically there was the same hesitation that has been noted for the pre-
ceding exemptions ^) is now universally recognized as an excuse for not pro-
ducing him.2 But it is necessary, first, to exclude the suspicion that the
witness may be secreting himself by collusion with the proponent,^ and,
secondly, to show that the proponent's ignorance of his whereabouts is not
due to lack of effort to discover him ; accordingly, it must be shown that
honest and diligent search for the attester has been made.* The sufficiency
of this search has been dealt with in a number of rulings, not profitable for
use as precedents ; ^ the matter should be left entirely to the determination
of the trial Court.^ That the search should include a sheriffs search with
295, 297 (non-resideiioe at time of execution
raises a presumption of continued non-residence) ;
1858, Sherman v. Transp. Co., 31 Vt. 162, 165,
174 (witness to document executed out of the
State ; no evidence of the witnesses having been
in the State ; held properly dispensed with ;
Valentine v. Piper approved). Gomtra: 1826,
Jackson v. Gager, 5 Cow. 383, 385 (power of
attorney executed in Massachusetts ; witnesses
not presumed out of the jurisdiction).
1 1701, Anon., 12 Mod. 607 ("that he has
made strict enquiry after them and cannot hear
of them," sufficient) ; 1796, Barnes v. Trora-
powsky, 7 T. R. 265 (see quotation in note 4,
infra) ; 1808, Crosby ■». Percy, 1 Taunt. 364,
366 (Manslield, C. J. : "The law has been much
relaxed in this particular within the period of
my practice ; the increased commerce of the
country, and the number of persons who every
year go out of it, first rendered it nece.'isary to
admit secondary evidence in the case of witnesses
being abroad ; the dispensation was next ex-
tended to the case of witnesses who were not to
be found ").
2 1810, Warden v. Fermour, 2 Camp. 282
1875, Hartford L. Ins. Co. v. Gray, 80 111. 28
1815, Powers c. M'Ferran, 1 S. & R. 44, 46
1855, Harrel v. Ward, 2 Sneed 610, 614, semhU
1802, Broadwell v. McCIish, 1 Cr. C. C. 4.
s 1810, EUenborough, L. C. J., in Wardell
II. Fermour, 2 Camp. 283: "I will watch very
narrowly your proof of search. ... If the at-
testing witness knows too much of the transac-
tion, and his examiuation would hazard the
validity of the deed, he may be sent out of the
way, and we may be amused at the trial with an
account of his having absconded."
* Various phrasings of this requirement are
as follows : 1796, Barnes v. Trompowsky, 7 T. R.
265 ("If no intelligence can be obtained respect-
ing the subscribing witness after reasonable
inquiry ha.s been made " ; . . . if he " has
been sought for and could not be found, so
as to furnish a presumption that he Is dead ") ;
1802, Cunliffe v. Sefton, 2 East 183 ("due
diligence. without effect"; "diligent inquiry";
here the place of execution was unknown,
and search at the places of obligor and obligee
was held sufficient) ; 1808, Cro.sby v. Percv,
1 Taunt. 364 (Mansfield, C. J. : " In all cases
it must appear to the Court that there was
a fair, serious, and diligent inquiry, and no eva-
sion, or attempt to keep tlie witness out of the
way " ; here, on inquiry at the last abode, the
party had been told that the witness had ab-
sconded to escape his creditors ; advertising was
not required) ; 1811, Waring v. Bowles, 4 Taunt.
132 (the Court required the party to sliow, not
merely diligent inquiry, but "the particular
search that had been made for the witnessj and
where he had been last seen or known to reside,
and when he was last heard of, and what en-
deavors had been made to find him ") ; 1853,
Crane w. Ayre, 2 All. N. Br. 577 ("all the cir-
cumstances must therefore be looked to in each
case ") ; 1804, Manigault v. Hampton, 1 Brev.
S. C. 394 (reasonable diligence required).
" England : 1810, Parker v. Hoskins, 2 Taunt.
223 ; 1821, Burt v. Walker, 4 B. & Aid. 697
(the witness a clerk to the defendant, and disap-
pearing somewhat suddenly ; search held suffi-
cient on the facts) ; 1822, Pytt v. Griffith, 6
Moore 538 (not sufficient where the witness was
merely ' ' keeping out of the way to avoid an
arrest" for debt, unless at the instance of the
opponent; unsound); 1823, .lames v. Parnell,
Turn. & R. 417 ; 1842, Falmouth w. Roberts, 9
M. & W. 469, 471 ; Canada: 1846, Tylden v.
Bullen, 3 17. C. Q. B. 10 ; 1848, Doe v. Twigg,
5 id. 167, 170 ; United States : 1853, Powell v.
Hendricks, 3 Cal. 427, 430 ; 1839, Thompson
c. Wilson, 13 La. 138, 142; 1820, Whittemore
V. Brooks, 1 Greenl. 57 ; 1879, McMillan v.
Larned, 41 Mich. 521, 522, 2 N. W. 662; 1811,
Mills V. Twist, 8 John. 121 ; 1814, Jackson v.
Burton, 11 id. 64; 1828, Jackson v. Cody, 9
Cow. 140, 149 ; 1832, Jackson f. Chamberlain,
8 Wend. 620, 624 ; 1833, Pelletro.iu v. Jackson,
11 id. 110, 123 ; 1838, Van Dyne v. Thayre, 19
id. 162, 165 ; 1847, Truby v. Byei-s, 6 I'a. St.
347 (mere ignorance of abode, without search,
not enough) ; 1892, Gallagher v. Assoc. Co., 149
id. 25, 24 Atl. 115 (search for one having no
fixed place of abode and going from place to
place to get employment, held sufficient on the
facts).
For the admissibility of the replies received
in the search, as evidence of diligence, see post,
§ 1789, ante, §261.
« 1845, Woodman v. Segar, 12 Shepl. 90, 92
1604
§§ 1285-1321]
EXCUSES FOR NOT CALLING.
§ 1315
subpoena seems unnecessary;^ nor, on the other hand, should a sheriffs
search and return of "not found" be invariably sufficient.^
§ 1314. Same : (5) "Witness' Name Unknown, through Loss or Illegibility
of Document. It is clear that where the very name of the attester cannot be
ascertained, the attester is unavailable for the purpose of furnishing his testi-
mony. This situation occurs where the document is lost ; here the proponent
is exempt from producing the attester ; ^ unless of course the name has other-
wise before trial become known to the proponent ; ^ for in that case his testi-
mony, though not of great value without the document before him, might at
least help to establish the fact that such a document did or did not once
exist.^
Where the name of the attester is illegible, the same reason for exemption
from production exists.*
§ 1315. Same: (6) Illness or Infirmity; (7) Failure of Memory; (8) Im-
prisonment. (6) When the attester is at the time of trial so ill, or so infirm
from age, that it is impracticable, without danger to his life or health, to
compel his attendance in Court, his production should be dispensed with.^
There is little judicial authority on the subject, partly because statutes appli-
cable to will-witnesses have frequently dealt with the point ; in applying the
statutory terms the analogies of the statutes excusing the non-attendance of
deponents {post, § 1406) would be useful. But though attendance at the
("iti some measure") ; 1823, McGennis v. Alli-
son, 10 S. & R. 197, 200 (Duncan, J. ; "What
is reasonable inquiry ? There can be no fixed
and settled rule ; every case must stand on its
own bottom ; and this point must be left with
some latitude of discretion ").
' 1829, Dismukes v. Musgrove, 8 Mart. N. s.
375, 379. Contra : 1838, Crockett v. Crockett,
Meigs 95 (return of subpoena, semble, necessary
where the witness is not specifically shown to be
out of the State).
' 1836, Jerman v. Hudson, 2 Harringt. 134
(subpoena, and return "not found," suificient) ;
1847, Sexton v. McGill, 2 La. An. 190, 195
(same ; insufficient) ; 1833, M'Donald v. JI'Don-
ald, 5 Yerg. 307 ("if to be found," in St. 1789,
c. 23, § 1, as to will-witnesses, is satisfied by a
return of "not found " by the officer having the
subpoena).
i 1796, Keeling v. Ball, Peake Add. Cas. 88
("It did not appear that the plaintiff could by
any possibility know who the subscribing wit-
nesses were," and proof by the extrajudicial ad-
missions of the maker allowed) ; 1853, K. v. St.
Riles, 1 E. & B. 642 (per Erie, J., applying it to
the case where the name is known, but the per-
son cannot be found or identified ; "it is the
case of an attesting witness, unknown ") ; 1854,
Felton V. Pitman, 14 Ga. 530, 535 (deed lost and
witnesses unknown ; exempted) ; 1887, Terry v.
Kodahan, 79 id. 278, 294, 5 S. E. 38 (deed lost
and witnesses dead ; exempted) ; 1892, Turner
V. Gates, 90 id. 731, 744, 16 S. E. 971 (neither
witness nor maker is then preferred) ; 1831,
Hewes V. Wiswell, 8 Greenl. 94, 96 ; 1833, Mel-
len, 0. J., in Knox u. SUIoway, 1 Eairf. 201,
1605
219 (even though the witness be present ; this
seems unsound) ; 1829, Hathaway v. Spooner, 9
Pick. 23, 25 ; 1875, Kayuor v. Norton, 31 Mich.
210, 213 ; 1827, Colby v. Kenniston, 4 N. H.
262, 265 ; 1835, Montgomery v. Doiion, 7 id.
475, i&3, semble; 1832, Kingwoodo. Bethlehem,
13 N. J. L. 221, 226 (indenture of apprentice-
ship ; calling excused, "for the knowledge of
them had been lost with the indenture itself") ;
1819, Jackson v. Kingsley, 17 John. 158, 160,
semble (witnesses' names torn off) ; 1831, Jack-
son V. Vail, 7 Wend. 125, 129 ; 1880, Congdon
v. Morgan, 14 S. C. 687, 593. Contra: 1819,
Gillies V. Smithers, 2 Stark. 528 (Abbott, C. J. :
"The evidence of the attesting witnesses is es-
sential to show that the bonds ever existed ; "
here they were said to have been destroyed).
" 1859, Smith v. Brannan, 13 Cal. 107, 115
(calling required, where by a copy the names of
the witnesses appeared) ; 1819, McMahan v.
McGrady, 5 S. & E. 314 (known attester must
be called ; repudiating the argument that it is
useless to call him since there is nothing to tes-
tify to).
* Gillies V. Smithers, Eng., McMahan v.
McGrady, Pa., supra.
* 1829, Kemper v. Pryor, 1 J. J. Marsh.
598.
^ 1811, Jones v. Brewer, 4 Taunt. 46 (" even
perhaps in some instances of sickness," his pres-
ence is not required, per Mansfield, C. J. ; con-
tra, semble, Heath, J. ; all agreed in refusing to
authorize a deposition to be taken, leaving the
matter to be determined at the trial). Contra:
1796, Gordon v. Payne, 1 Mart. N. C. 72 (the
witness when last heard from had been given up
§ 1315 PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
trial would seem properly excused, there is no reason why at least the at-
tester's deposition should not be taken.^
(7) A failure of memory, so far as it involves a general mental disability,
organic in its nature, and analogous to insanity (post, § 1316), should excuse
entirely from production of the person and of his deposition. But a mere
casual failure of memory as to the facts of execution obviously cannot excuse;
for it caunot be ascertained except after production to testify. When it
appears after such production, other principles come into play ; (a) the wit-
ness may adopt his attesting signature as a record of past recollection, and
upon the faith of it verify the facts of execution as thus known to him to
have occurred {ante, §§ 737, 747) ; (5) if he fails to do this, his signature may
be otherwise proved, and his attestation taken as sufficient evidence of the
facts of execution {post, § 1511) ; (c) in any case, upon his failure to recollect,
the facts of execution may be proved hy other qualified persons {ante, § 1302) ;
whether, in case of such a failure to recollect, the other attesters must first be
called, is another question (ante, § 1309).
(8) "Where the attester is imprisoned under sentence of law, and it is thus
legally impossible to secure his attendance, it should be excusable for the
same reason as in the case of illness ; ^ but his deposition, if he is qualified to
testify, should be taken.
§ 1316. Same: (9) Inoompetency, through Interest, Infamy, Insanity, Blind-
ness, etc. Where the attester has become, since the act of attestation, dis-
qualified to give testimony, it would be useless to produce him, and production
is therefore excused.
(a) This doctrine as applied to a supervening disqualification by interest
has long been recognized, although in some early rulings it has been held not
to apply where the interest had been voluntarily acquired by the attester.^
by his physician ; handwriting not allowed), ada: 1843, Hamilton v. Love, 2 Kerr N. Br.
There could be no doubt on this point to-day. 243, 250, 253 (Parker, J., doubting) ; 1848, -Doe
" 1820, Jackson v. Root, 18 John. 60, 80 v. Twigg, 5 U. 0. Q. B. 167, 170 ; United
(aged and infirm and unable to attend, but States: 1833, Bennet o. Rohinson, 3 Stew. & P.
within the jurisdiction ; deposition required). 227, 240 (interest as administrator, etc., suf-
Compare § 1404, ante. ficient, but not as assignee, this being purely
^ The statutes cited ante, § 1310, sometimes voluntary and for jiersonal benefit) ; 1848, Mc-
specify this cause of excuse. Kinley y. Irvine, 13 Ala. 681, 706 (interest ao-
^ In the following rulings, subsequently quired by voluntary act ; handwriting excluded) ;
acquired interest in general is treated as an 1849, Robertson v. Allen, 16 id. 106, 107 (in-
excuse, except where a special proviso is noted : terest as legatee and heir ; handwriting allowed) ;
Ungland: 1715, Anon, cited in 1 P. Wms. 289, 1850, Gox v. Davis, 17 id. 714, 717 (in general ;
seinble ; 1717, Godfrey ». Norris, 1 Str. 34 (the interest sufficient); 1826, Biiard v. Buard, 5
witness to a bond became administrator (i. J. m. Mart. N. s. 132, 134; 1820, Whittemore v.
of the obligee ; his hand allowed to be proved ; Brooks, 1 Greenl. 57; 1809, Dudley u. Sumner. 5
so also of a witness to a will afterwards becom- Mass. 439, 444, 462, semble; 1813, Si'ars v. Dill-
ing devisee); 1798, Buckley v. Smith, 2 Esp. ingham, 12 id. 358, 362 (will) ; 1841, Amhei-st
697 ; 1802, Cunliffo v. Sefton, 2 East 183; 1829, Bank v. Root, 2 Mete. 522, .132 ; 1858, Jones t>.
Hovill a. Stephenson, 5 Bing. 493 (" We do not Phelps, 5 Mich. 218, 222 (justice of the peace
dispute the authority of any of those decisions," disqualified as the trial judge; no exemption
and even an interest acquired in a partnership from calling him, the (Usability being the result
would not he fatal, but here the interest ac- of the party's act) ; 1856, Tinniu v. Price, 31
quired was purely in the specific contract at- Miss. 423 ; 1849, Holmes v. HoUomau, 12 Mo.
tested, and " the plaintiff cannot complain that 636 (otherwise, "the purposes of a testator
his witness is disqualified, when he himself has might be defeated by events which no precau-
been the cause of the disqualification"); Can- tion on his part could anticipate or prevent");
1600
§§ 1285-1321] EXCUSES FOE NOT CALLING. § 1317
This limitation is proper enough as a punishment, where by collusion with
the proponent of the document the interest has been acquired with the pur-
pose of disqualifying the attester; but otherwise it is harsh and improper,
and the disqualification, however occurring, should suffice to excuse, the
opponent having liberty to compel the attester to testify if there appears to
be a need of it. — Where the disqualification was not acquired subsequently
to attestation, but existed at the time of it, the attestation is void as such,
and the person does not count for any purpose as an attester {ante, § 1292).
(6) Disqualification occurring through infamy, subsequently to attestation,
is equally an excuse for non-production.^
(c) Disqualification through insanity, arising subsequently to attestation, is
also an excuse.^
{(T) Blindness would prevent the attester from identifying the maker's
signature and his own ; but it would not prevent him from testifying by
recollection to the execution of such a document by such a person. Since,
therefore, he is still qualified to testify in part at least, there would seem to
be no reason for excusing his non-production as a rule, although upon a ques-
tion purely as to the identity of a signature it would be useless to call him.*
§ 1317. Same : (10) Refusal to Testify, Privileged or Unprivileged,
(a) Where the attester is jprivileged not to testify, and is thus not com-
pellable, the proponent should be excused from production.^ Whether it is
necessary to call him and learn whether he will claim his privilege in court,
or whether it is sufficient if it appears otherwise that he will if called exer-
cise his privilege, should be left to the determination of the trial Court.^
(6) Where the attester, though not privileged, nevertheless refuses to tes-
1792, Nelius v. Brickell, 1 Hayw. 19, semble; ^ 1729, Jones v. Mason, 2 Str. 833 ("as if
1801, Hampton v. Garlanil, 2 id. 147; 1804, dead ") ; 1815, Sears u. Dillingham, 12 Mass.
Hall V. Byuum, ib. 328 (not received, for a 358, 361 (will).
bond, where the witness had become assignee * 1804, Beniett v. Taylor, 9 Ves. Jr. 381 ;
and had then assigned to the plaintiff; reason, 1813, Cnrrie v. Child, 3 Camp. 283.
the supposed danger of collusion and trickery) ; * The rulings are not harmonious : 1699,
1832, Crowell v. Kirk, 3 Dev. 355, 357; 1840, Wood o. Drury, 1 Ld. Raym. 734 asmUe (ex-
Saunders I'. Ferrill, 1 Ired. 97, 101 (sufficient, cused); 1833, iPedler v. Paige, 1 Moo. & Rob.
whether acquired by law or by his own act ; 258, Parke, B. (not called; but "there is great
except for negotiable instruments) ; 1785, Davi- weight in the reasons urged for calling the wit-
son V. Bloomer, 1 Dall. 123; 1813, Hamilton ness," i.e. that "the circumstances attending
V. Marsden, 6 Binn. 45, 47 (sufficient, even the execution might be proved by him ") ; 1839,
when acquired by his own act voluntarily) ; Cronk v. Frith, 9 C. & P. 197; s. c. as Crank v.
1851, Loomis v. Kellogg, 17 Pa. 60, 63 (one Frith, 1 Moo. & Rob. 262 (Abinger, L. C. B. ;
who by accepting an executorship becomes in- " He might from his recollection give most im-
competent may by his attestation be a "full portant evidence respecting it " ; here the pleas
witness"; when he is objected to as incom- to an action on a bond set up fraud and intoxi-
petent, "they put him in the predicament of a cation at the time of execution) ; 1847, Rees v.
witness dead or out of reach of process ") ; 1852, Williams, 1 De G. & Sm. 314, 320 (not ex-
Kinncy w. Flynn, 2 R. I. 319, «cm6Ze (wife of cused); 1806, Taylor, J., in Baker v. Blount,
the maker of a note) ; 1833, Lever v. Lever, 2 Hayw. 404 (excused).
1 Hill Ch. S. C. 62, 68 (incompetency as execu- i 1849, Holmes w. Holloman, 12 Mo. 535
tor, note signed by mark; witness' handwriting (heirs claimed privilege as parties; production
insufBcient, unless note is shown to have existed excused); 1812, Alleu v. Allen, 2 Overt. 172
before interest accrued) ; 1850, Jones u. Arter- (under St. 1784 and 1789, a claim of privilege
burn, 11 Humph. 97, 99 (the statutory phrase, by an interested witness exempts from produc-
"if to be I'ouncl," for contested wills, "is not to ing him, even where the will is contested).
be construed literally," and covers subsequent * Compare the analogous case of a ■privileged
incompetency, as exempting production). douwnvi'rd, ante, § 1212.
1607
§ 1317 PREFERENCE FOR ATTESTING WITNESS. [Chap. XL
tify, the proponent should be excused, provided it is made to appear that
there is no collusion;* for there is no reason why the iunocent proponent
should be punished for the witness' fault, especially as the latter's refusal
may be designed to aid his own or the opponent's interests.
§ 1318. Same: (11) Document proved ,by Registry-Copy. Where a
document's execution is allowed to be proved by a certified copy from an
official registry, the document's execution having been duly authenticated to
an officer before registration (^post, § 1648),. the attester of the document
need not be called.^ This result may be justified on three grounds : (a) The
object of the registration system is to provide a convenient and speedy
method of authenticating a document duly registered (^post, § 1648), and
among the other advantages thus intended to be secured is the freedom from
the inconvenience of searching for and producing the attesters ; (b) Since the
original document in such a case is not required in such jurisdictions to be
produced ( ante, § 1225), the value of the attester's testimony without the
document and the original signatures before him would be slight ; (c) In
those jurisdictions ( ante, § 1290) where the present rule is now by statute
confined to documents required by law to be attested, the rule cannot apply
to documents — for example, conveyances — required to be authenticated
before a notary or a registrar by an attesting witness, because that require-
ment does not make attestation an element in the validity of the conveyance,
but merely provides a lawful mode of authenticating the instrument for
registration.
But the principle should not apply to a document merely Jiled in a public
office ; the contents may be provable without production (ante, § 1218), but
unless a mode of authentication has been provided by statute as a condition
precedent to the filing or registration {post, § 1680), it would seem improper
to dispense with the attester's testimony.^
^ 1828, Bomford t. Wilrae, 1 Beatty 252 quired because in tlie party's hands as a grantee,
(the witness rel'used to be examined, even after according to § 1225, ante) ; 1870, Samuel v.
attachment for contempt ; held, that handwrit- Borrowscale, 104 Mass. 207, 209 ; 1872, Gragg
ing could be proved only after a hearing in v. Learned, 109 id. 167 (if " not made to either
which the opponent should have an opportunity party to the action, nor presumed to be in the
to show collusion). custody of either" ; according to § 1225, ante) ;
1 1844, Smith v. Millidge, 2 Kerr N. Br. 1842, Moss v. Anderson, 7 Mo. 337, 340 (though
408, 413, semble; 1893, Hawkins !'. Ross, 100 evidence of identity may be required ; and "cases
Ala. 459, 464, 14 So. 278 ; 1898, Foxwoith v. may arise" in which a Court miglit require the
Brown, 120 id. 59, 24 So. 1 ; 1885, Fletcher v. attesting witness) ; 1868, Sharon v. David.son, 4
Home, 75 Ga. 134, 137; 1840, Doe v. John.son, Nev. 416 ; 1810, Carkhuft' v. Anderson, 3 Binn.
3 111. 522, 528 ; 1848, Job v. Tebbetts, 10 id. 4, 7, 10 ; 1821, Dingle v. Bowman, 1 McC.
376, 379 (without any other preliminary proof ; 177 ; 1845, McLeod v. Rogers, 2 Rich. 19, 22 ;
repudiating the contrary obiter dictum in s. 0. 9 S. Car. St. 1731, Gen. St. 1882, § 2226-7, Code
id. 143, 151) ; 1828, Eaton v. Campbell, 7 Pick. 1902, §§ 2898, 2899 (quoted ante, § 1290) ; 1802,
10,12; 1829, Hathaway «. Spooner, 9 id. 23, 25, Edmondson v. Lovell, 1 Cr. C. C. 103; 1892,
semble; 1832, Powers v. Russell, 13 id. 69, 75 Paine v. Trask, 5 U. S. App. 283, 288; 1830,
(" where the production of a deed is dispensed Carver v. Jackson, 4 Pet. 1, 82, semble ; 1827,
with and au office copy is competent evidence, Williams v. Wetherbee, 2 Aik 329, 335 (here
. . . the necessity of calling them is dispensed an original); 1864, Hinchcliif v. Hinman, 18
with," because the witness could not be expected Wis. 130, 135.
to remember without seeing the original) ; 1854, Compare also the statutes cited ante, § 1310.
Com. V. Emery, 2 Gray 80, per Shaw, C. J. * Ccmtra: 1878, Lee t>. Wisner, 38 Mich. 82,
(except where the original's production is re- 87 (bond filed in court).
1608
§§ 1285-1321] EXCUSES FOR NOT CALLING. § 1320
§ 1319. Same: Summary. The foregoing various causes for exempting
from production of the attester may be grouped under four general heads :
(a) Cases where the attester cannot be communicated with at all, either
because he is non-existent, or because his whereabouts or his identity is
uukiiown ; (6) cases where, though he can be communicated with, he cannot
be brought into court ; (c) cases where, though he can be brought into court,
his testimony cannot be obtained ; (d) cases where, though his testimony can
be obtained, other considerations excuse its employment. It does not appear,
however, that anything turns in practice upon the distinctions between these
four classes ; except that in cases under the second head, as already noted, the
attester's deposition may be required in lieu of his testimony on the stand.
(h) " And also Authenticate his Attestation, unless it is not Feasible."
§ 1320. If the Witness is Unavailable, must his Signature be proved, or
does it suffice to prove the Maker's ? The question here is, as usually put :
When the production of the attester is excused because he is unavailable,
must at least his signature be authenticated, or may the maker's signature
alone be proved, without proving that of the attester ? The nature of the
question, however, can be better understood if we recollect, and force into
expression in the question, the true significance of proof of the attester's
signature in such a case. What is it to prove his signature ? It is in effect to
offer in evidence the hearsay statement of the attester. The signing of a
document in attestation by a witness, whether or not an express clause of
attestation accompanies the signature, involves a statement by the attester
that the person purporting to be the maker did then execute the document
(post, § 1511). This extrajudicial statement, expressed or implied, is always,
when the attester is unavailable, admissible by exception to the Hearsay rule
(post, §§ 1505-1514). The question here is, not merely whether it is ad-
missible, but whether it is preferred to any other testimony to the maker's
execution. It is assumed that the attester is personally unavailable (for one
of the causes noticed) ; and that the rule of preference is therefore to that
extent disposed of, so that, if nothing more belonged to the rule, use could now
be made of any competent testimony to prove the maker's execution. Is it,
then, further, a part of the rule of preference that, before thus going to other
testimony, the attester's hearsay statement must he used?
Stated in this way, the precise and singular nature appears of the supposed
requirement of proving the attester's signature. That a preference should be
given to any extrajudicial statement over testimony on the stand under cross-
examination is an extraordinary measure, assuming for such a statement a
value not at all to be attributed ordinarily to such statements. Neverthe-
less, such a preference unquestionably existed as a part of the orthodox com-
mon-law rule in England. The preference seems rarely to have been
supported by any reason ; and the following seems to be the most distinct
effort to that end :
1609
§ 1320 PEEFERENCE FOR ATTESTING WITNESS. [Chap. XL
1834, Tracy, Sen., in Jackson v. Waldron, 13 Wend. 178, 197 : "I acknowledge the
reason of this preference is not at first glance perfectly obvious ; and that it is not has
induced some learned judges, without (I am now satisfied) due reflection, to question the
wisdom of the rule, and by their doubts throw over it a shade of discredit. But ... I
am persuaded that good reasons may be found for maintaining it, over and above the
consideration of its being so long settled and acknowleged. One of them, which strikes
me as very apparent and forcible, is the greater risk a person incurs in forging the sig-
natures of both witnesses and party than of the party alone ; coupled with which con-
sideration is the important one that in the suit on the obligation the person whose name
was forged as the subscribing witness would be a competent witness to prove the forgery
of his signature, while a party might be compelled to sit silently by (as I have myself
witnessed) and see an instrument to which he was an utter stranger proved by evidence
of his handwriting to have been executed by him."
In the United States, the rule was early perceived to have in most instances
no more than a technical and traditional significance, and a number of Courts,
believing that " a technical and artificial rule had prevailed over our right
reason," ^ refused to accept it, and declined to require proof of the attester's
signature in preference to proof of the maker's. Their reasoning was as
follows :
1851, Trumbull, J., in Newsom v. Luster, 13 111. 175: " Why proof of the handwriting
of a subscribing witness should be better evidence of the execution of an instrument than
that of the obligor is not very apparent, and the attempts to give a reason have not in my
judgment been very satisfactory. . . . [Stating the argument of Senator Tracy, quoted
supra, as to forgery,] No one can doubt that proof of the handwriting of both the subscrib-
ing witness and party would be more satisfactory than that of either one. But this is a
begging of the question, which is not whether a person would incur greater risk in forging
the signature of both witness and party than of the party alone. . . . Surely a person
would incur no greater risk in forging his [the witness'] signatui-e than that of the
party. . . . Another reason given for the rule is that the witnesses who subscribe at the
time of the execution are agreed upon by the parties to be the only witnesses to prove it,
which, in the language of the Supreme Court of New York, ... is an absurdity. . . .
Proof of the handwriting of the grantor to a deed furnishes altogether more satisfactory
evidence of its execution than would proof of the handwriting of the subscribing witness.
When the attesting witness cannot be had, the law requires the next best evidence, which
means the next best evidence of those facts to which the attesting witness if present
would be called upon to testify, — that is, not merely that he signed the paper as a witness,
but that the party executed the instrument. It is difficult to account for the signature of
a party to a writing which he did not execute ; but it is easy to imagine how a forged
instrument might be established against him when it is only necessary to procure the
name of a person as a subscribing witness to such an instrument, and then establish it
by proof of the handwriting of the witness."
1895, Atkinson, J., in McVicker v. Conkle, 96 Ga. 584, 592, 24 S. E. 23 : "The real
question, then, upon the execution of a deed being as to the actual signing [by the maker],
the primary inquiry should be as to the fact. . . . [The witnesses' handwriting] miglit be
proven beyond controversy, and still the deed be a forgery ; for, while the persons alleged
to be subscribing witnesses may have signed the paper, that does not, except by inference,
connect the alleged maker with the transaction, nor otherwise establish the execution of
the deed by him. If, however, on the other hand, it be shown that the alleged maker in
fact signed the identical paper offered in evidence, such evidence not only establishes
directly the execution of the instrument, but likewise connects the maker directly with
1 1849, Lumpkin, J., in Watt v. Kilburn, 6 Ga. 356, 358.
1610
§§ 1285-1321] PEOVING THE SIGNATUEE. § 1320
the transaction to which it relates. In the former case, the fact of execution would be
established by inference only ; in the latter, by direct evidence, and who will question
that a rule is purely artificial and arbitrary which makes the former of higher proof than
the latter ? "
In order to ascertain the state of the law in the various jurisdictions, the
following distinctions should be noted: (1) So far as concerns documents
required by law to be attested, i. e. chiefly, wills, the question is ordinarily of
little importance, because the attestation has to be authenticated in any case,
as an element of validity. Furthermore, wherever by statutory restriction
{ante, § 1290) the whole rule preferring the attester is confined to documents
required by law to he attested, the present question disappears from considera-
tion in regard to any other attested document ; for the attester's signature
need not be proved at all. Thus, the old controversy would to-day in such
jurisdictions be of no consequence whatever, were it not for the will-statutes
next to be mentioned.
(2) In many jurisdictions, the statute dealing with proof of wills lays
down an express rule in regard to the proof of signatures where the attester
is unavailable. Now some of these statutes prescribe proof of the signatures
of " either the testator or the witnesses," " of the witnesses and the testator
or any of them," and the like. Thus it may arise that, though (as above
noted) the attester's signature ought to be proved as an element of the va-
lidity of the execution, yet under such a statute even this seems to be im-
properly dispensed with ; and a Court may in this obscure state of things
fall back upon the common-law rule of the jurisdiction.
(3) As regards the common-law rule itself, the decisions collected include
two classes, — those which require the attester's signature to be proved in
preference to the maker's and those which do not require it.'-' Now from this
2 The rule on the present subject in the 5 id. 457, 459, sem5Ze (deed ; same ; hut here one
various jurisdictions may be gathered from the witness was called, though he could not recollect
cases and statutes collected below. delivery) ; 1850, Cox v. Davis, 17 id. 714, 717
For convenience' sake, the statutes dealing (deed; same; the rule "appears to have been
with the question of § 1306, ante (whether all settled here"); 1887, Snider v. Burks, 84 id.
the witnesses' signatures need be proved), and 53, 56, 4 So. 225 (will ; same) ; Ariz. Rev. St.
the question of § 1613, post (whether the maker's 1887, § 983 (the Court " may admit proof of the
or testator's .signature must be proved), have also handwriting of the testator, ami of the subscrib-
been placed here once for all, as a single stat- ing witnesses, or any of them ") ; Ark. Stats,
utory clause usually deals with all three points : 1894, § 7415 ("when one of the witnesses to
England: 1796, Barnes v. Trompowsky, 7 T. R. such will shall be examined, and the other wit-
265 (witness' signature preferred); Canada: nesses are dead, insane, or their residence un-
N. Br. St. 1898, c. 35, § 39 (proof of " the known, then such proof shall be taken of the
handwriting of the witnesses and the testator " handwriting of the testator and of the witnesses
may be made) ; P. JS. I. St. 1873, c. 21, § 24 dead, insane, or absent, and of such other cir-
(quoted ante, § 1310); United States: Ala. cumstances as would be sufficient to prove such
Code 1897, § 4276 (" [wills] must be proved by will on a trial at common law") ; § 7416 ("If
one or more of the subscribing witnesses, or if it shall appear to the satisfaction of the Court
they be dead . . . then hy proof of the hand- that all the subscribing witnesses are dead, in-
writing of the testator and that of at least one sane, or absent, the Court or clerk shall take and
of the witnesses to the will ") ; § 4277 (death, receive such proof of the handwriting of the tes-
etc, must be shown, before proof of " the hand- tator and subscribing witnesses to the will, and
writing of the testator or of any of the subscrib- of such other facts and circumstances as would
ing witnesses" is admissible); 1842, Mardis v. he sufficient to prove such will in a trial at
Shackelford, 4 Ala. 493, 503 (bond ; witness' sig- law") ; 1839, Wilson v. Royston, 2 Ark. 315,
nature not needed) ; 1843, Lazarus v. Lewii, 328 (deed ; witness' signature required) ; 1862,
VOL. II. —39 1611
§ 1320
PEEFEEENCE FOE ATTESTING WITNESS. [Chap. XL
question must be discriminated a question arising under a different principle,
namely, whether the maker's signature must also be proved, i. e. whether the
Delony v. Delony, 24 Id. 7, 11 (not required
where witness signed ty mark only) ; Gal, C. C.
P. 1872, § 1315 (if none are in the county,
the Court "may admit the testimony of other
witnesses," and " as evidence of the execution,
it may admit proof of the handwriting of the
testator and of the subscribing witnesses or any
of them ") ; Commissioners' amendment of 1901
(quoted ante, § 1310) ; 1864, Landers v. Bolton,
26 Cal. 393, 411 (witness' signature not re-
quired ; laid down, after deliberation, as " a
general rule "; but " this rule might not apply to
instruments which the law requires to be attested
by witnesses") ; 1864, McMinn v. O'Connor,
27 id. 238, 245 (same) ; 1864, McMinn u.Whelan,
ib. 300, 310 (same) ; Colo. Anuot. Stats. 1891,
§ 4676 ("in all cases where any one or more
of tlie witnesses " are unavailable, evidence is
allowable "of the handwriting of any such de-
ceased or absent witness as aforesaid, and such
other secondary evidence as is admissible in
courts of justice generally to establish written
contracts generally, in similar cases ") ; D. 0.
Code 1901', §§ 131, 132 (quoted ante, § 1310) ;
Bel. : 1832, Boyeru. Norris, IHarriugt. 22 (bill ;
witness' signature required) ; 1836, Jerman v.
Hudson, 2 id. 134 (same ; assignment of judg-
ment) ; Ga. Code 1895, § 5245 (if the witnesses
are unavailable, proof of the maker's signature
is "primary evidence" ; if that is unavailable,
witnesses' handwriting "or other secondary evi-
dence" may be admitted) ; § 3282 (proof "of
their signatures and that of the testator," neces-
sary for wills) ; 1849, Watt v. Kilburn, 7 Ga.
356, 358 (witness' signature a mark only, and
therefore "a nullity"; maker's signatui'e suf-
ficient); 1895, McVicker v. Conkle, 96 id. 584,
585, 24 S. E. 23 (witness' signature required ;
rule affirmed as settled ; but policy doubted by
Atkinson, J.) ; 1896, Baker v. Adams, 99 id.
135, 25 S. E. 28 (trial held before the statute,
supra ; the witnesses decea.sed ; the maker's tes-
timony admitted by consent); 1898, Standback
■0. Thornton, 106 id. 81, 31 S. E. 805 (witness'
signature not necessary, under the statute) ;
Ida. Rev. St. 1887, § 5311 (like Cal. C. C. P.
§ 1315) ; m. Rev. St. 1874, c. 148, § 6 (where
one or more witnesses are dead, etc., "it shall
he lawful ... to admit proof of the hand-
writing of any such deceased, insane, or absent
witness, as aforesaid, and such other secondary
evidence as is admissible in courts of justice, to
establish written contracts generally in similar
cases '') ; 1851, Newson v. Luster, 13 111. 175
(witness' signature not required, for instruments
not required to be attested ; quoted, supra) ; 1865,
Fash V. Blake, 38 id. 363, 368, semble (deed ;
not required) ; Ind. Rev. St. 1897, § 2805 (if
the witnesses are dead, etc., "then by proof of
the handwriting of the testator or of the sub-
scribing witness thereto ") ; 1838, Bowser v.
Warren, 4 Blaokf. 522, 524 (witness' signature
required); 1848, Yocum v. Barnes, 8 B. Monr.
496, 498 (covenant ; witness' signature not re-
quired) ; La.; 1832, Barfield ti. Hewlett, 4 La.
118, 119, semble (witness' signature not re-
quired) ; 1845, Grand Gulf R. & B. Co. v.
Barnes, 12 Rob. 127, 130 (same) ; Me. : 1845,
Woodman v. Segar, 12 Shepl. 90, 93 (not re-
quired ; but here it was intimated that the proof
of the witness' handwriting was dispensed with
merely because he never had been in the State
and the proof was not accessible) ; Md. Pub.
Gen. L. 1888, Art. 93, § 337 (wills executed out
of the State and not there required to be re-
corded ; proof of testator's handwriting or of the
subscribing witnesses' or "any of them," suf-
ficient) ; St. 1890, c. 416, St. 1892, c. 81 (quoted
ante, § 1310) ; 1864, Keefer v. Zimmerman, 22
Md. 274, semble (not required in certain cases) ;
Mass. : 1814, Homer v. Wallis, 11 Mass. 309, 311
(witness' signature not required, for documents
not required to be attested); 1839, Valentine v.
Piper, 22 Pick. 85 (not required ; the maker's is
"more direct and satisfactory than that of the
handwriting of the witnesses ") ; 1851, Gelott v.
Goodspeed, 8 Cush. 411 (same); 1892, Smith
Charities v. Connolly, 157 Mass. 272, 276, 31
N. E. 1058 (mortgage ; same) ; Mich. Comp. L.
1897, § 9280 (the Court "may admit proof of
the handwriting ^of the testator and of the sub-
scribing witnesses") ; Minn. Gen. St. 1894,
§ 4437 (if the witnesses are not resident, the
Court " may admit proof of the handwriting of
the testator and of the subscribing witnesses ") ;
Miss. Annot. Code 1892, § 1816 (if no witnesses
can be produced, then "it may be established
by proving the liandwriting of the testator, and
of the subscribing witnesses to the will, or of
some of them ") ; 1838, Downs v. Downs, 2 How.
915, 925 (deed ; grantor's signature and ac-
knowledgment sufficient) ; Mo. Rev. St. 1899,
§ 4619 (when one witness is examined, and the
others are " dead, insane, or their residences un-
known, then such proof shall be taken of the
handwriting of the testator and of the witnesses
dead, insane, or residences unknown, and of
such other circumstances as would be sufficient
to prove such will on a trial at common law ") ;
§ 4620 (if all the witnesses are dead, etc., then
shall be taken "such proof of the handwriting
of the testator and subscribing witnesses to the
will, and of such other facts and circumstances
as would be sufficient to prove such will in a
trial at law ") ; neither of these carelessly con-
structed sections can be said to be intelligible ;
both evidently misunderstand the former law ;
and the words " common law " and " law " are
ambiguous precisely where certainty was needed ;
1857, Clardy v. Richardson, 24 Mo. 295, 297,
semble (deed ; witness' signature not required) ;
Mont. C. C. P. 1895, § 2243 (like Cal. C. C. P.
§ 1315) ; iTebr. Comp. St. 1899, § 2656 (if none
of the witnesses are resident, etc., the Court
"may admit proof of the handwriting of the
testator, and of the subscribing witnesses ") ;
Nev. Gen. St. 1885, § 26S8 (it witnesses are not
available, the Court, "as evidence of the execu-
tion, may admit proof of the handwriting of the
testator, and of the subscribing witnesses, or any
1612
§§ 1285-1321]
PEOVING THE SIGNATUEE.
1320
attester's signature alone suffices. This assumes that proof has voluntarily
been made of the attester's signature, and asks whether the maker's addi-
tionally is needed. This involves the inquiry what is implied by the attes-
tation, and whether proof of it suffices (not whether it is necessary), and is
elsewhere considered {post, § 1513), in dealing with the Hearsay exception
for Attesting Witnesses. Thus, though the question is there sometimes, in
form, whether both must be proved, the real inquiry is whether the maker's
of them"); St. 1897, c. 106 (cited ante, § 1310 ;
it omits to re-enact the foregoing provision) ;
N. H. : 1834, Famsworth v. Briggs, 6 N. H.
561, 563 (a note; witness' signature required;
Parker, J., agreeing solely on authority, and
approving the policy of requiring also proof of
the grantor's signature) ; 1848, Cram v. Ingalls,
18 id. 613, 616 (possibly dispensable, where at-
testation is not required by law) ; N. M. Comp.
L.,1897, § 1982 (if the witnesses are not attain-
able, others sha!ll be examined "to prove their
signatures ") ; N. Y. C. C. P. 1877, § 2620 •
(a will " may be established " upon proof of the
testator's and witnesses' handwriting ' ' and also
of such other circumstances as would be suf-
ficient to prove the will upon the trial of an ac-
tion ") ; 1834, Jackson o. Waldron, 13 Wend.
178, 183, 197 (for a sealed instrument, the wit-
ness' signature required ; " although many able
judges have declared their dissatisfaction with
the rule," per Walworth, C. ; but Tracy, Sen.,
approved the rule) ; 1847, Willson i;. Betts,
4 Den. 201, 209 (same, applied to a deed); N. O.
Code 1883, § 2148 (proof of a will "may be
taken of the handwriting, both of the testator
and of the witness or witnesses so dead," etc.,
"and also of such other circumstances as will
satisfy" of its execution) ; 1795, Jones v.
Blount, 1 Hayw. 238 (grantor's signature ob-
jected to because the signature was not essential
and did not import delivery; objection repu-
diated) ; N. D. Eev. Code 1895, § 6299 (the
Court "may admit the testimony of any com-
petent witness respecting the execution of the
will, the capacity of the testator, or other ma-
terial fact, and may also admit proof of the
handwriting of the testator or of a subscribing
witness and such other evidence as is admissible
in courts of justice to establish or disprove
written contracts in similar cases ") ; St. 1897,
o. 59, Rev. Code 1899, § 3888 a (instruments in
general ; " nor shall it be permissible to prove
such instrument or contract in any case by proof
of the handwriting of said subscribing witness
or witnesses as the case may be, but in all cases
such instrument or contract must be proved in
the same manner as one having no subscribing
witness whatever") ; Oh. : 1824, Clark v. Boyd,
2 Oh. 280 (57) ( ' ' under proper circumstances . . .
either may be sufficient ") ; Okl. Stats. 1893,
§ 1193 (if the subscribing witnesses are unavail-
able, the Court " may admit proof of the hand-
writing of the testator and of the subscribing
witness, or any of them") ; Or. C. C. P. 1892,
§ 761 ("the handwriting of one of them, and
that of the party, shall be proved ") ; S. 0. St.
1839, Gen. St. c. 61, §§ 1870, 1871, Rev. St.
1893, §§ 2003, 2004, Code 1902, §§ 2491, 2492
(for probate in common form, handwriting of
the testator and the witnesses '' or any other
secondary evidence admissible and sufficient by
the rules of the common law " ; for solemn form,
handwriting of the witnesses and the testator) ;
1803, Taylor v. Meyers, 2 Bay 506, 1 Brev. 245
(under the statute exempting from calling wit-
nesses to notes and bonds, their handwriting
need not be proved ; the Court's first opinion,
which alone is given in 1 Brev., was to the
contrary) ; 1806, Gervais v. Baird, 2 Brev. 37,
semble (witness' handwriting not needed, under
the same statute) ; 1821, Comneil v. Buckley,
1 McC. 466 (deed ; witness' signature required) ;
1829, Hill V. Hill, 2 Hill 542, note (deed;
proof of maker's signature not sufficient) ; S. D.
Stats. 1899, § 6903 (like Okl. Stats. § 1193) ;
Tex. Rev. Civ. Stats. 1895, § 1900 (if the wit-
nesses are unavailable, probate may be gi'anted
"ou proof by two witnesses of the handwriting
of the subscribing witnesses thereto, and also of
the testator, if he was able to write ") ; U. S. :
1805, Well ford v. Eakin, 1 Cr. C. C. 264 (wit-
ness' signature not required) ; 1810, Whann o.
Hall, 2 id. 4, semble (required) ; 1830, Walton
V. Coulson, 1 McLean 120, 123 (required); 1831,
Clarke v. Courtney, 5 Pet. 319, 344 (same) ;
1882, Stebbins v. Duncan, 108 U. S. 32, 2 Sup.
313 (same) ; Utah Rev. St. 1898, § 3792 (like
Cal. C. C. P. § 1315) ; Vt. Rev. St. 1839, Stats.
1894, §2363 (will-witnesses; if none reside in the
State, the testimony of " other witnesses " may
be received, and the Court "may admit proof
of the handwriting of the testator and of the
subscribing witnesses, in cases where the names
of the witnesses are subscribed to a certificate
stating that the will was executed as required in
this chapter") ; 1858, Sherman v. Transp. Co.,
31 Vt. 162, 165, 175 (handwriting of a grantor,
sufficient, where the attestation is "not required
to the operative effect of the contract ") ; Va. :
1826, Gilliam v. Perkinson, 4 Rand. 325 (con-
tract ; witness' handwriting dispensed with
where he signs by mark only ; semble, in other
cases also) ; 1829, Raines v. Philip, 1 Leigh 483
(maker's handwriting can be resorted to only
when proof of witness' handwriting is unavail-
able ; here, of a bond) ; Wash. C. & Stats. 1897,
§§ 6103, 6104 (quoted ante, § 1310) ; Wis. Stats.
1898, § 3788 (if the attesters are unavailable, the
Court may admit other testimony to prove sanity
" and the execution of the will, and may admit
proof of his handwriting and of the handwriting
of the subscribing witnesses ") ; Wyo. St. 1891,
c. 70, chap. Ill, § 3 (quoted ante, § 1310).
1613
§ 1320 PEEFERENCE FOR ATTESTING WITNESS. [Chap. XL
(not the witness') signature must additionally be proved. Courts requiring
the maker's also, when the attestor's is offered, need not be Courts requiring
the attester's also if only the maker's is offered, though they frequently coin-
cide ; i.e. a Court might conceivably require a party proving the attester's to
add the maker's, because of the insufficiency of the former (under § 1513,
post), while the same Court, under the present principle, might not require
the attester's if the maker's is offered. Accordingly, so far as such decisions
require "both," in the sense that the attester's is needed, even when the
maker's is offered, they belong here ; while so far as they require " both," in
the sense that the maker's is needed, even when the attester's is offered, they
belong there {post, § 1513). Nevertheless, comparison should be made of
the two sets of rulings in examining the law upon either point.
§ 1321. Proof of Signature dispensed ■with, where not Obtainable. Just as
the rule of preference for the attester's testimony on the stand is not enforced
where it appears that his testimony cannot be had {ante, § 1308), so also, in
those jurisdictions where proof of his signature is next preferred, this require-
ment is abandoned where it appears that such proof cannot be had.
(a) The most common instance is that in which testimony to the identity
of the handwriting cannot by honest and diligent search be obtained. The
sufficiency of the search ought to be left to the determination of the trial
Court ; the rulings can seldom be taken as binding precedents ; it seems
generally accepted, however, that the search need not extend out of the
jurisdiction.^
(&) Where the witness has subscribed by mark, it may be thought imprac-
ticable to attempt to identify it in the same way as handwriting ; and it is
on this ground that a few Courts have dispensed with such evidence in the
case of a subscription by mark.^
(c) Where the attesting signature is not to be had for purposes of authen-
tication, either by the loss of the document or the illegibility of the writing,
evidence of the attester's signature is impracticable.^
1 Cal. : 1864, Landers «. Bolton, 26 Cal. 393, dron, 13 id. 178, 200, 223 (same) ; 1844, North-
409 (attestation and residence out of the State, rop v. "Wright, 7 Hill 476, 485 (a will more than
sufficient to show non -availability ; approving 30 years old ; no presumption of inability to
Newsom u. Luster, III., infra) ; 1865, McMinn find handwriting witnesses, and search held in-
V. O'Connor, 27 id. 238, 245 (same) ; 1865, Mc- sufficient) ; 1847, Willson v. Betts, 4 Den. 201,
Minn v. Whelan, ib. 300, 310 (same) ; HI.: 210 (such a presumption doubted ; here search
1851, Newsom y. Luster, 13 111. 175 ("all that held sufficient); iV. C. : 1840, McKinder v.
can be required in any case is that reasonable Littlejohn, 1 Ired. 66, 71 (no "precise rule of
diligence should be used to procure evidence of law " can be made ; and the trial Court's dis-
the handwriting" ; here a search for the witness cretion as to the ability to find evidence should
in the neighboring State, where the deed was control) j Pa. : 1820, Miller v. Carothers, 6 S.
executed, or throughout the former State, was & R. 215, 223 (search held sufficient on the
held unnecessary) ; Ind. : 1838, Bowser v. War- facts) ; S. C. : 1798, Hopkins v. De GreflFeureid,
ren, 4 Blackf. 522, 525 (diligence not shown on 2 Bay 187, 192 (search to prove the hand of an
the facts ; mere fact of delivery in Illinois near old woman "who did not sign her name more
the border, insufficient to exempt from search) ; than once probably in 50 years," held not neces-
Kij. : 1824, Ford v. Hale, 1 T. B. Monr. 23 sary in the present case ; here, the grantor's signa-
(need not go out of the State for testimony) ; lure) ; 1839, Dawson v. Dawson, Rice Eq. 243,
N. Y. : 1833, M'Pherson v. Rathbone, 11 Wend. 254 (proof of witness' handwriting, unavailable
96, 99 (search for evidence held sufficient on the on the facts).
facts) ; 1833, Pelletreau v. Jackson, ib. 110, 123 ' See the cases passim cited in § 1320.
(search held insufficient) ; 1834, Jackson w. Wal- ^ 1795^ Keeling v. Ball, Peake Add. Cas. 88
1614
§§ 1285-1321] PEOVING THE SIGNATUEE. § 1321
{(T) Distinguish the case where the attestation is to be proved as an ele-
ment in the validity of the document; for here (apart from any such express
statutory exemption as is noted in the preceding section) the genuineness of
the attester's signature must somehow be proved, like any other element ; and
if evidence is not offered, the proponent fails, even though it was out of his
power to obtain it*
(the witnesses teing unlaiown, proof by the and a deceased person, was in this case equiv-
niaker's admissions was allowed) ; 1853, K. v. alent to proof of handwriting of the witness).
St. Giles, 1 £. & B. 642 (Erie, J., declaring Compare the general principle as to lost docvr-
squarely that "in no case whatever, where the ments (ante, § 1314).
instrument is lost and the attesting witness is * 1848, Cram v. Ingalls, 18 N. H. 613, 616
dead, can it be necessary to prove his hand- (not excused, semble, where instruments are re-
writing" ; Wightman and Crompton, JJ., quired by law to be attested); and compare
merely holding that proof of the fact of at- § 1513, post,
testation, and of identity of an attesting person
1615
§ 1325 BOOK I, PART II, TITLE I. [Chap. XLI
Topic I (continued) : PROVISIONAL TESTIMONIAL PREFERENCES.
CHAPTER XLI.
Sub-topic B : PREFEERED REPORTS OF PRIOR TESTIMONY.
§ 1325. Introductory.
§ 1326. (a) Magistrate's Report of Accused's
Statement ; General Principle.
§ 1327. Same : Magistrate's Report not re-
quired if lost or not taken.
§ 1328. Same : Written Examination usable
as Memorandum or as Written Confession.
§ 1329. (6) Magistrate's or Coroner's Report
of Witness' Testimony.
§ 1330. (c) Report of Testimony at a Former
Trial.
§ 1331. (d) Deposition taken de tene esse.
§ 1332. (e) Dying Declarations, and other
Extrajudicial Statements.
Sub-topic C: SUNDRY PREFERRED WITNESSES.
§ 1335. Official Certificates.
§1336. Same: Celebrant's Certificate of Mar-
riage as preferred to Other Eye-witnesses.
§ 1337. Same : Official or Certified Copies of
Documents, as preferred to Examined or Sworn
Copies.
§ 1338. Preference of Copy- Witness to Recol-
lection- Witness.
§ 1339. Sundry Preferences for Eye-witnesses
and other Nou-Official Witnesses (Writer of a
Document, to prove Forgery ; Bank President
or Cashier, to prove Counterfeiting ; Surveyor,
to prove Boundary ; etc.).
Sub-topic B: Preferred Eepoets of Prior Testimony.
§ 1325. Introductory. As another exception to the general principle
(ante, § 1286) that no classes of witnesses are preferred in our law, there
is a well-established doctrine preferring a certain kind of witness in proving
the terms of another person's testimony delivered infra-judicially prior to the
trial in which it is offered. In determining the scope of this doctrine it is
necessary to discriminate between five different sorts of prior testimony,
(rt) the examination of an accused person before a committing magistrate,
(6) the examination of a witness before a committing magistrate, a coroner,
or the like, (c) the testimony of a witness at a former trial, (d) the deposi-
tion of a witness taken de hene esse before an of&cial for the purposes of the
present trial, (e) dying declarations, or other statements admissible under
Hearsay exceptions.
§ 1326. (a) Magistrate's Report of Accused's Statement ; General Prin-
ciple. The theory here is that, since the magistrate is required by law to
take down in writing the statement of the .accused, the written report thus
made at the time is preferred to mere oral (or recollection) testimony of the
terms of the statement ; i. e. the official report is preferred not only to the
recollection of any ordinary hearer but even to the recollection of the magis-
trate himself :
1722, Eyre, J., in R. v. Reason, 16 How. St. Tr. 35 : " That which is set down in writ-
iiig, if it be an examination taken in writing of a prisoner before a justice of the peace,
you cannot give evidence of that examination viva voce, unless the examination be lost."
Artie, 1726, Chief Baron Gilbert, Evidence, 59: "What is reduced to writing by an
officer sworn to that purpose, from the very mouth of the witness, is of more credit than
1616
§§ 1325-1339]
REPOETS OF TESTIMONY.
§ 1326
what a stander-by retains in memory of the same oath ; for the images of things decay in
the memory, by the perpetual change of appearances, but what is reduced to writing
continues constantly the same."
1839, Parke, B., in Leach v. Simpson, 5 M. & W. 309, 312: " The written deposition is
the best evidence of what was said, and must first be produced before you can inquire by
other means as to what passed on the occasion."
1850, Wilde, C. J., R. v. Christopher, 2 C. & K. 994, 1000, 4 Cox Cr. 81: " The reason
why a deposition is the primary evidence of what passes before the magistrate is that the
law casts a duty ou the magistrate of taking down what the witnesses say, and the pre-
sumption is that he has done it. Aud therefore that which he so does becomes the best
evidence."
Considering the easy accessibility of the testimony thus preferred, and the
slightness of the burden imposed in preferring it (ante, § 1286), the rule may
be regarded as a sound and satisfactory one.
But it win be noticed that it rests on two assumptions, — first, that the
written report contains the entirety of what was said, and, secondly, that the
report was made in pursuance of an official duty expressly imposed by law.^
^ The following list of statutes includes also
those affecting other kinds of testimony, and
will be from time to time referred to in the en-
suing §§ 1327-1332, 1349: England: 1554, St.
1 & 2 f. & M. c. 13, § 4 (" Justices of the peace
. . . shall before any bailment or mainprise take
the examinatiou of the said prisoner and the in-
formation of them that bring him, . . . and the
same or as much as may be material thereof to
prove the felony, shall be put in writing before
they make the bailment ") ; 1 555, St. 2 & 3 P.
& M. K. 10 ("The said justice or justices, be-
fore he or they shall commit or send such pris-
oner to ward, shall take the like examination
of the prisoner and the information of those who
bring him, and shall put the same in writing
within two days after the said examination ") ;
1826, St. 7 Geo. IV, c. 64, § 2 (the justice shall
take the examination of the prisoner ' ' and the
information upon oath of those who shall know
the facts and circumstances of the case, and
shall put the same, or as much thereof as shall
he material, into writing") ; 1849, St. 11 & 12
Vict. c. 42, § ]7 (the justices shall "take the
statement on oath" of the witnesses, and "shall
put the same into writing," and cause the wit-
nesses to sign these depositions) ; § 18 (the jus-
tice shall read these depositions to the accused
aud ask him whether he wishes to say anything
in answer, " and whatever the prisoner shall
then say in answer thereto shall be taken down
in writing and read over to him and shall be
signed by the said justices"; provided that
nothing herein shall prevent the prosecution
from introducing "any admission or confession
or other statement of the person accused or
charged, made at any time, which by law would
be admissible as evidence against such person ";
for other parts of this statute, see the quotation
ante, § 848) ; Canada: Dom. Crim. Code 1892,
§ 590 (the testimony before a committing magis-
trate "shall be taken down in writing in the
form of a deposition"); § 591 ("whatever
1617
the accused then says in answer thereto [the
magistrate's warning] shall be taken down in
writing ") ; N. Sc. Eev. St. 1900, c. 36, § 5 (the
coroner "shall reduce the statement on oath of
any witness to writing") ; c. 100, § 121 (similar,
for prosecutions for illegal sale of licjuor) ;
United States: Ala. Code 1897, § 5235 (commit-
ting magistrate must reduce testimony to writ-
ing) ; Alaska C. Cr. P. 1900, §§ 311, 315 (like
Or. Annot. C. 1892, §§ 1598, 1602) ; §§ 273, 335,
338, 371 (like ib. §§ 1549, 1623, 1627, 1665) ;
Ariz. P. C. 1887, §§ 1270, 1345, 1356 (commit-
ting magistrate is to reduce deposition to writ-
ing at time of complaint ; but not at time of
commitment, except by way of deposition de
lene) ; St. 1903, No. 25, amending Eev. St.
1901, P. C. § 765 (examination of witne.«ises
before the magistrate " must be reduced to writ-
ing as a deposition " in homicide, and in other
cases on demand of the prosecuting attorney ;
the certified report " shall be prima facie a cor-
rect statement of such testimony ") ; Ark. Stat.
1894, § 1997 (committing magistrate in his min-
utes shall " make a general statement of the sub-
stance of what was proved") ; § 756 (testimony
before coroner of suspected persons "may be
. . . reduced to writing"); § 757 ("the testi-
mony of each witness, if material, shall be re-
duced to writing"); Cal. P. C. 1872, § 702.
(threatened offence ; the magistrate "must take
their depositions in writing " of the informer
and his witnesses) ; § 704 (if the charge is con-
troverted " the evidence must be reduced to
writing and subscribed by the witnesses ") ;
§ 869 (in cases of homicide, before the com-
mitting magistrate, " the testimony of each wit-
ness . . . must be reduced to writing ; and in
other cases, upon the demand of the prosecuting
attorney, or the defendant, or his counsel " ; it
must be "corrected or added to until it con-
forms to what he [the witness] declares is the
truth " ; when taken in shorthand and tran-
scribed and " certified as being a correct state-
§ 1326
EULES OF PREFERENCE.
[Chap. XLI
(1) As to the first requirement, its non-fulfilment would perhaps not affect the
propriety of the present rule of mere preference so much as the propriety
ment of such testimony, "it " shall be prima
facie a correct statement of such testimony and
proceedings ") ; Oolo. Annot. Stats. 1891, § 226
(examination of complainant and accused in bas-
tardy " shall be taken down in writing ") ; § 874
(testimony before coroner ' ' shall be reduced to
writing") ; Conn. Gen. St. 1887, § 2011 (coro-
ner " shall reduce to writing " the testimony be-
fore him) ; § 157 (testimony at fire inquest to
be reduced to writing and subscribed); § 3105
(illegal liquor-selling ; testimony by intoxicated
person ' ' shall be taken down in writing by the
magistrate or clerk," and subsciibed) ; I). C.
Comp. St. 1894, c. 14, § 2 (coroner "shall put
in writing the effect of the evidence . . . , be-
ing material " ; and justices binding over wit-
nesses " shall certify as well the same evidence
as such bond or bonds in writing as he shall
take"); Code 1901, § 194 (for the coroner, "it
shall be his duty ... to reduce the testimony
of the witness to writing ") ; Del. Eev. St. 1893,
e. 33, § 4 (coroner ; testimony of each witness
"if material, shall be reduced to writing" and
.signed ; voluntary examination of suspected per-
son shall "be reduced to writing" and signed
by him if willing) ; c. 97, § 18 (committing
magistrate shall reduce to writing the volun-
tary examination of accused, in cases of felony ;
he shall also reduce the witness' testimony to
writing, "if material," and have it signed);
F/a. Rev. St. 1892, § 3018 (at coroner's inquest,
"the evidence of such witnesses shall be in
writing, subscribed by him or her ") ; Ga. Cr.
C. 1895, § 910 (defendant's statement; "it
shall be the duty of the Court to reduce it to
writing"); § 911 (in felony charge, "the Court
shall cause an abstract of all the evidence to be
made and returned"); § 1265 (coroner "shall
commit to writing the substance of the testi-
mony") ; Saw. Penal Laws 1897, § 979 (testi-
mony at an inquest "shall be reduced to writing
by the Coroner or some other person by his
direction") ; Ida. Rev. St. 1887, § 8382 (testi-
mony at coroner's inquest " must be reduced to
writing"); § 7576 (before committing magis-
trate, testimony " must be reduced to writing, as
a deposition"); § 7383 (testimony on informa-
tion of threatened ofi'ence "must be reduced to
writing"); § 7516 (information before magis-
trate; he "must" take witness' "depositions
in writing " ) ; HI. Rev. St. 1874, c. 38, §§ 320,
348 (complaint to magistrate shall be reduced
to writing) ; c. 32, § 18 (coroner is to have testi-
mony of each witness " written out and signed
by said witness") ; Ind. Rev. St. 1897, § 1004
(justice must reduce to writing the woman's ex-
amination in bastai-dy) ; § 8324 (Court taking
examination of witness brought by prosecuting
attorney to complain "shall cause so much of
said testimony as amounts to a charge of a felony
or misdemeanor to be reduced to writing and
subscribed and sworn to") ; la. Code 1897,
§ 520 (testimony before coroner shall he reduced
to writing) ; § 5227 (committing magistrate
" shall " cause the " substance of the testimony "
to be wi-itten out); § 5239 (when defendant
waives examination, magistrate "shall take the
evidence in writing of the State's witnesses,"
on county attorney's demand) ; Kan. Gen. St.
1897, c. 102, § 51 (committing magistrate shall
reduce testimony to writing "when he shall
think it necessary"); c. 27, § 141 (testimony
before coroner " shall be reduced to winting ") ;
JCy. Stats. 1899, § 530 (coroner shall "commit
to writing the substance of the evidence " ) ;
La. Rev. L. 1897, § 662 (testimony at coroner's
inquest "shall be reduced to writing"); Me.
Pub. St. 1883, c. 139, § 7 (testimony at inquest
"shall be in writing and signed by them") ;
c. 133, § 12 (at preliminary examination, magis-
trate may reduce to writing and have signed
any witness' testimony, "when he thinks it
necessary") ; Mass. Pub. St. 1882, c. 212, § 32,
Rev. L. 1902, c. 217, § 39 (witness' testimony
is to be reduced to writing, and, if the Court
requires, to be signed by witness) ; Mich. Comp.
L. 1897, § 11801 (magistrate examining com-
plainant shall " reduce such examination to writ-
ing " ) ; § 11823 (testimony before justice at an
inquest "shall be reduced to writing " ) ; § 11853
(testimony before committing magistrate " shall
be reduced to writing") ; Minn. Gen. St. 1894,
§ 849 (testimony before coroner " must be reduced
to writing") ; § 7146 (testimony before commit-
ting magistrate " shall be reduced to writing ");
Miss. Annot. Code 1892, § 823 (coroner " shall
put in writing so much of the evidence given to
the jury before him as shall be material ") ; Mo.
Rev. St. 1899, § 2454 ("in cases of homicide,
but in no other," the evidence before a commit-
ting magistrate ' ' shall be reduced to writing ") ;
§ 4621 (testimony of probate in support of will
"shall be reduced to writing") ; Mont. P. C.
1895, §§ 1431, 1680 (like Cal. F. C. §§ 702, 869) ;
§ 2795 (testimony before coroner "must be
reduced to writing"); Nev. Gen. St. 1885,
§§ 2689, 2704 (testimony at probate of will
"shall be reduced to writing") ; § 2262 (testi-
mony before coroner "shall be reduced to
writing " ) ; §§ 4929, 4930 (so also for testi-
mony compelled to be given in certain cases
where privilege is abolished) ; § 3920 (threatened
offences; magistrate shall take "deposition in
writing " of complainant and his witnesses) ;
§ 3922 (when person complained of is brought
bePoie magistrate, he shall reduce to writing the
evidence) ; § 3988 (complaint of offence com-
mitted ; magistrate "may require their deposi-
tions to be reduced to writing ") ; § 4036 (at
examination of defendant before committing
magistrate, testimony by consent of parties
"maybe reduced to writing"); § 4041 (accused's
statement must be reduced to writing ") ; § 4056
(deposition taken by magistrate conditionally
"shall be reduced to writing"); N. H, Pub.
St. 1891, e. 252, § 7 (testimony "may be re-
duced to writing by the magistrate, or under his
direction, when he deems it necessary, and shall
be signed by the witness ") ; §§ 8, 9 (magistrate
" may take the examination in writing of the
1618
§§ 1325-1339] MAGISTEATE'S REPOET OF TESTIMONY.
1326
of the rule of the conclusiveness of the report {post, § 1349). Moreover,
although the statutes do not in all cases expressly require the whole to
accused person '' where the case requires it, "if
the accused after being cautioned consents
thereto " ; the caution warning him that ' ' the
questions and answers will be written and pre-
served and may be evidence upon his trial"),
c. 262, § 12 (testimony before coroner "shall be
drawn up in writing and subscribed ") ; N. J.
Gen. St. 1896, Coroners § 14 (the coroner " shall
put in writing the effect of so much of the evi-
dence given to the jury before him as shall be
material"); N. M. Comp. L. 1897, § 3379
(magistrate committing for felony ; testimony is
to be " reduced to writing " by stenographer for
transmission to grand jury) ; § 1982 (testimony
of will witnesses shall be " reduced to writing");
N. Y. C. Or. P. 1881, § 87 (testimony before"
magistrate must "be reduced to writing" and
subscribed) ; § 778 (testimony before coroner
"must be reduced to writing" by him) ; § 204
(testimony before committing magistrate must
be reduced to writing and subscribed); N. 0. Code
1883, § 1147 (testimony of accused before magis-
trate "shall be reduced to writing"); § 1150
(same for witnesses) ; N. D. Rev. C. 1895, § 7767
(threatened offences ; evidence before magistrate
' ' must on demand of the defendant be reduced
to writing ") ; § 7961 (like Okl. Stats. § 6004) ;
§ 2019 (testimony before coroner " must be re-
dnced to writing") ; Oh. Rev. St. 1898, § 5615
(magistrate is to reduce to writin" testimony of
bastardy complainant) ; § 6055 (same for pro-
ceedings against one embezzling decedent's
property) ; § 1221 (same for witnesses before
coroner) ; St. 1903, Mar. 14, p. 56, § 3, amend-
ing Rev. St. § 1221 (the testimony before the
coroner "shall be reduced to writing ") ; OM.
Stats. 1893, § 4890 (threatened offence ; evidence
must "on demand of the defendant be reduced
to writing") ; § 5005 (before committing magis-
trate, on defendant's demand "all the testimony
in the case must be reduced to writing in the
form of depositions") ; § 1192 (testimony of
subscribing witnesses to will " must be reduced
to writing ") ; § 1207 (so also for witnesses to
lost or destroyed will) ; § 4382 (so also for ex-
amination of insolvent debtor) ; § 1750 (testi-
mony before coroner "shall be reduced to writ-
ing") ; Or. C. Cr. P. 1892, § 1598 (statement of
defendant before committing magistrate " must
be reduced to writing") ; § 1602 (testimony of
witnesses "need not l)e reduced to writing,"
except that depositions are taken at time of
complaint made) ; §§ 1549, 1623 (complaints
must be reduced to writing and witnesses' depo-
sitions taken) ; § 1665 (testimony before coroner
"mu.st be reduced to writing"); Pa. St. 1869,
P. & L. Dig., Fires § 4 (testimony of witnesses
at fire inquest "shall be reduced to writing") ;
R. I. Gen. L. 1896, c. 287, § 17 (coroner "shall
cause the testimony to be reduced to writing "
and subscribed) ; ■^. 0. St. 1839, Gen. St. 1882,
§ 2675, C. Cr. P. 1893, § 591, Crim. Code 1902,
§ 712 (the coroner is to take testimony of wit-
nesses in writing) ; C. Cr. P. 1893, § 23 (the
justice "may take" a witness' examination and
have it subscribed; hnt this is apparently re-
pealed in Cr. Code 1902, § 24) ; S. D. Stats.
1899, § 8301 (like N. D. Rev. C. § 7767);
§ 8419 (like N. D. Rev. C, § 7961) ; § 6904 (at
a will-probate, "the testimony of each witness,
reduced to writing and signed by him, shall be
taken ") ; § 8897 (testimony on search-warrant
proceedings must be reduced to writing) ; § 993
(testimony before coroner "shall be reduced to
writing"); Tmn. Code 1896, §§ 7017, 7021
(accused's statement to be taken in writing by
magistrate, and signed by accused or refusal
noted ; witness' testimony to be taken in writ-
ing by magistrate or under his direction, and
signed by witness) ; Tex. Rev. Civ.. Stats. 1895,
§ 1907 (testimony on will-probate "shall be
committed to writing") ; C. Cr. P. 1895, § 283
(accused's statement before magistrate "shall
be reduced to writing") ; § 288 (the witnesses'
testimony also "shall be reduced to writing") ;
§ 941 (justice of the peace examining witness for
disclosure of crime "shall reduce said statements
to writing ") ; § 1028 (testimony at coroner's in-
quest "shall be reduced to writing") ; § 1049
(so also at fire inquest) ; Utah Rev. St. 1898,
§ 4523 (threatened injury ; magistrate " may
take their depositions in writing " of complain-
ant and his witnesses) ; § 4528 (on the hearing,
" the evidence, on demand of the person com-
plained of, must be reduced to writing");
§ 4670 (preliminary examination ; like Cal. 1'.
C. § 869, omitting "or the defendant or his
counsel"); § 1229 (coroner "may require the
testimony to be written") ; § 3793 (testimony
at will-probate " shall be reduced to writ-
ing") ; Vt. Stats. 1894, § 4715 (justice at
inquest ' ' shall take the substance of the testi-
mony of each witness in writing ") ; Va. Code
1887, § 3968 (committing magistrate may reduce
testimony to writing if he " deems it proper ") ;
§ 3942 (coroner "shall" reduce testimony to
writing) ; W. Va. Code 1891, c. 155, § 4 (testi-
mony before coroner " shall be reduced to writ-
ing" and .subscribed); c. 156, § 14 (testimony
before committing justice shall be, "when the
justice deems it proper or the accused shall desire
it") ; Wash. C. & Stats. 1897, § 6105 ("all the
testimony adduced in support of the will [at
probate] shall he reduced to writing, signed by
the witnesses, and certified by the judge of the
court"; so also § 6117) ; § 6682 (threatened
offence ; magistrate shall reduce testimony to
writing) ; § 6699 (preliminary examination ; tes-
timony "shall be reduced to writing by the
magistrate, or under his direction, when he shall
think it necessary ") ; § 6708 (witness before
magistrate, recognizing for appearance ; magis-
trate "shall immediately take the deposition of
such witness ") ; § 532 (testimony before coroner
"shall be reduced to writing" "in all cases
where murder or manslaughter is supposed to
have been committed"); Wis. Stats. 1898,
§ 4790 (testimony before committing magistrate
"shall be reduced to writing ") ; § 4818 (threat-
ened offence; magistrate shall "reduce such
1619
§ 1326 EULES OF PREFERENCE. ^ [Chap. XLI
be taken down, it is also true that the original English statutes under which
the rule grew up did not require the whole to be taken. (2) As to the sec-
ond requirement, it is clear that there is no general principle in the law of
evidence which makes an official report a preferred testimony to the facts
reported {ante, § 1286). On the contrary, the official duty leading to the
report is merely that which suffices to make the report admissible at all,
under an exception to the Hearsay rule {post, § 1632), instead of calling the
reporter to the stand ; the fact of an official duty barely suffices to secure
admissibility, and cannot be thought in itself and in general to go so far as
to create a preference. While it may be conceded, then, that the preference
for the magistrate's report is in the specific instance a satisfactory rule, this
result is to be regarded as an exceptional and unusual step, taken solely be-
cause of the official duty requiring the report ; and therefore it is at least
necessary that such an official duty should be expressly imposed by law. A
report made merely by custom, or casually, and not under such a statutory
duty, is not to be accorded such a preference. The terms of the statutes in
the various jurisdictions have therefore to be kept in mind.
This rule of preference, then, though not conceived of in England until
the second century following the enactment of the first statute requiring
the magistrate's report in writing,^ has long been there established.^ In the
United States, it seems to be generally accepted (with variances) wherever
a statute makes it the magistrate's duty to report the statement in writing.*
Whether the report is conclusive, i. e. may be shown to be erroneous or
incomplete, is a question dealt with elsewhere {post, § 1349).
§ 1327. Same : Magistrate's Report not required if lost or not taken.
The notion of conditionally preferred testimony {ante, § 1286) is that it
must be used before any other, if it can be. Hence, if the preferred testi-
coraplaint to writing") ; § 4872 (testimony be- tion by justice must be used) ; 1835, People v.
fore coroner "shall be reduced to writing," " in White, 14 Wend. Ill, 123 (statements at ex-
all cases where murder or manslaughter is sup- amination not orally provable, unless the exami-
posed to have been committed ") ; Wyo. Rev. nation was never reduced to writing) ; 1836,
St. 1887, § 1882 (testimony before coroner People v. Moore, 15 id. 419, 421, semb!e (depo-
" shall be reduced to writing "). sition must be produced, if taken); 1853,
2 The doctrine first appears about 1720, in Alfreds. Anthony, 2 Swan 581, 590 (magistrate's
the time of R. u. Reason and Gilbert's treatise, writing prefen'ed) ; 1902, Grimsinger v. State,
quoted supra; before that time the magistrate — Tex. (Jr., — 69 S. W. 583 (confession reduced
came on the stand and testified orally, usually to writing by the clerk of the grand jurors ;
referring to his notes of the examination ; for writing not required to be put in). See also the
example: 1679, Green's Trial, 7 How. St. Tr. ca.ses in the ensuing sections, where the doctrine
159, 192, 194 (the officer taking the examination is assumed to exist ; and also the cases requiring
testifies to the utterances without reading the the written examination to be produced in prov-
examination) ; 1682, Goningsmavk's Trial, 9 id. ing an inconsistent statement to impeach the
1, 23 (same ; though the written examinations accused's testimony {ante, §§ 1262, 1263).
were in Court). It has been sometimes imjiroperly preferred
' See the cases cited in the ensuing sections. where no statutory duty exists : 1879, State v.
* 1792, Benedict v. Nichols, 1 Root 434 Branham, 13 S. 0. 389, 396 (deposition of ac-
(defendant's examination on oath touching pos- cased, taken without statutory authority ; writ-
session of deceased's effects ; being " officially ing must be produced as preferred testimony,
taken," it was " not to be proved by parol testi- " where there was no obstacle "). But see this
mony"); 1896, Leggett v. State, 97 Ga. 426, case explained posi, § 1328.
24 S. E. 165 (magistrate's report of accused's The magistrate, if it is his duty, is presMmed
testimony, preferred to oral evidence) ; 1874, to have made a written report : post, § 1327.
Wright V. State, 50 Miss. 332 (written examina-
1620
§§ 1325-1339] MAGISTRATE'S EEPOET OF TESTIMOI^Y. § 1328
mony is unavailable, either because it is lost or otherwise inaccessible, or
because it never existed, the requirement of its use ceases. The magistrate's
report, then, is not required, and any other testimony to what was said may
be used, if the magistrate's report is lost or otherwise inaccessible,^ or if it
was irregularly taken so as to be inadmissible,'* or if it was never taken in
writing at all.^ But the party wishing to use such other testimony must
show that the preferred testimony is unavailable ; for, if a law imposed a
duty for the magistrate to report in writing, it is properly assumed that the
magistrate performed his duty and that such a report exists.*
§ 1328. Same : Written Examination usable as Memorandum or as Written
Confession. If the magistrate's written report is inadmissible as such, be-
cause not taken regularly under the statute, it may still be employed in other
aspects. (1) It may be referred to by the magistrate as refreshing his present
memory or as a record of his past recollection {ante, § 737, 761):
1722, Pratt, C. J., in Layer's Trial, 16 How. St. Tr. 214 : " Your objection would prevail
if they were going to read a confession as evidence which was neither read to him nor
signed by him. But if there is no examination reduced into writing and signed by the
party, the consequence of that is that tiie witness is at liberty to give an account of what
was said, and he may look to his notes to refresh his memory. . . . You say there is no
precedent for it ; for God's sake, recollect yourself ; it is eveiy day done at the Old Bailey;
if a person confesseth and it be not in writing, they do prove his confession viva voce." ^
(2) It may have been orally acknowledged hy the accused to be correct, after
it was read over to him, and may thus be receivable, not as the magistrate's
report of the accused's statement, but as the statement itself in writing ; an
^ R. V. Reason, quoted ante, § 1326 ; and directory ; and if the Justice should not do his
the citations in the uext section ; and the follow- duty in the obeying it, that shall not be of so
ing cases : 1898, R. v. Troop, 30 N. Sc. 339 much prejudice to the State that the evidence
(witness' contradictory testimony at the prelimi- shall be lost by it"); 1853, State u. Parish,
nary hearing, allowed to be proved by one pres- Busbee L. 239 (oral evidence allowed, where the
ent, the magistrate's report being lost ; good examination was not reduced to writing),
opinion by Henry, J. ; two judges thought that * 1779, Jacobs' Case, 1 Leach Cr. L., 3d ed.,
its loss was immaterial) ; 1901, Marx v. Hart, 347 (as also in Hinxman's Case and Fisher's
166 Mo. 503, 66 S. W. 260 (statements of the Case, cited in a note) ; 1830, R. v. Hollingshead,
opponent, at the time of taking his deposition, 4 C. & P. 242 ; Phillips v. Wimburn, ib. 273 ;
admitted, the deposition being lost). 1837, R. v. Coveney, 6 id. 667 (it is pre-
^ 1791, Lambe's Case, 2 Leach Cr. L. 3d ed. sunied that all was taken) ; 1848, R. v. Martin,
625 (quoted in the next section) ; 1829, R. v. 6 State Tr. N. s. 925, 989 ; 1852, R. v. Mc-
Hayman, M. & M. 403 ; 1838, K. ■». Wilkinson, Govern, Ire., 5 Cox Cr. 606, Torrens, J. (with
9 C. & P. 662 (other evidence of a defendant's hesitation) ; 1899, Overtoom v. R. Co., 181 111.
statement admitted, where a magistrate had 323, 64 N. E. 898 (a coroner, required by law to
merely returned a subsequent memorandum take in writing) ; 1874, Wright v. State, 50
noting that the defendant had said nothing) ; Mias. 332, 335.
1843, .leans r. Wheedon, 2 Moo. & Rob. 486. l Accord: 1819, R. v. Telieote, 2 Stark. 483
* 1722, Layer's Trial, 16 How. St. Tr. 214 (noticing its availability as a memorandum for
(quoted in the next section) ; 1835, People v. the clerk) ; 1826, Dewhurst's Case, 1 Lew. Cr.
White, 14 Wend. Ill, 123; 1794, State u. C. 46 (the accused neither signing nor admitting
Irwin, 1 Hayw. 112 ("There is certainly an the truth of the writing, oral evidence of the
impropriety in saying that evidence may be accused's oral statement was given by the clerk,
received of a confession made before a private using the writing to refresh his memory ; two
man and that the same confession made before a other cases noted, accord) ; 1831, R. v. Bell,
justice shall not [be] because he hath omitted to 5 C. & P. 162 (the clerk reading in the third
perform his duty. This would put it in the person) ; 1833, R. v. Pressley, 6 id. 183; R. v.
power of a justice to make the confession evi- Tarrant, ib. 182 ; 1851, E. v. Watson, 3 C. & K.
deuce or not, at his election, and is a power the 111.
law never meant to give him. The Act is only
1621
§ 1328 RULES OF PREFERENCE. [Chap. XLI
oral acknowledgment and adoption of its terms being the same in effect as a
signing of it. In such a case, if the writing is produced, it is not as the pre-
ferred magistrate's report, but as the confession itself made in writing :
1791, Grose, J., in Lambe's Case, 2 Leach Cr. L. 3d ed. 625, 630 (an examination before
a magistrate reduced to writing, but not signed by magistrate or accused, but orally ac-
knowledged by the latter to be true when read over to him by the clerk) : " The intention
of the Legislature in passing the statute is clear and obvious. Its only object is to enable
Justices of the Peace to take such information and to transmit what passes before the
committing magistrate to the Court of Oyer and Terminer or Gaol Delivery, to enable the
judge and jury before whom the prisoner is tried to see whether the offence is bailable,
and whether the witnesses are consistent or contradictory in the evidence they give. . . .
There is not a single expression in either of the statutes from which it is to be collected
that the examination was directed to be taken merely as evidence against the prisoner.
Nor indeed is the examination in practice ever given in evidence as a matter so required
by the statutes, but containing a detail of circumstances taken under the solemnity of a
public examination for a different purpose, it is more authentic on account of the deliber-
ate manner in which it is taken. . . . The examinations which they directed to be taken
became evidence, where they contained confessions, by operation of law, leaving all other
confessions, good or bad, as they were before those statutes were made. . . . The exami-
nation, or paper- writing, . . . was under the circumstances of the case well received." ^
If, then, this written confession is desired to be proved, the writing must be
produced or accounted for (awfe, § 1230). Nevertheless, it would seem that
the oral statement of the accused and his subsequent adoption of the written
report are in fact two distinct statements, and therefore if it were desired to
prove the first and oral one, it would not be necessary to produce the second
and written one.^
It should be noted, however, that so far as the accused's statement as such
is inadmissible by the rules applicable to confessions before a magistrate
(^anfe, §§ 842-852), then both the official report and the oral acknowledg-
ment of it are alike inadmissible.
§ 1329. (by Magistrate's or Coroner's Report of Witness' Testimony. So
far as the law imposes on a committing magistrate or a coroner the duty of
making a written report of the testimony delivered before him, the principle
just examined (ante, § 1326) makes this official report a preferred testimony,
to be used in preference to any other :
1742, Annesley's Trial, 17 How. St. Tr. 1121 ; a deposition before the coroner was
read; the coroner was asked : " Are these all the minutes that you took ? " Coroner: " If
I may say anything more from my memory, I will do it ; " Counsel : " Then we will go upon
the parol evidence;" Counsel for the opponent: "When an ofiBcer has taken things down
in writing, it is of dangerous consequence to admit parole evidence to he given of the
same things;" Counsel: " We do not insist upon it."
1839, Abinger, L. C. B., in Leach v. Simpson, 7 Dowl. Pr. 513, 515 : " When testimony
* Accord: 1794, E. v. Thomas, 2 Leach Cr. nothing to show that she admitted it to be
L. 3d ed. 727 (after a first reading, the accused true "),
acknowledged its correctness ; upon a later ' Contra: 1879, State v. Branham, 13 S. C.
reading, he denied it ; admitted) ; 1827-8, Fos- 389, 397 (though the magistrate has no duty to
ter's Case and Hirst's Case, 1 Lew. 46 (a con- examine and report in writing, yet if he does,
fession read over, the accused not signing nor and the accused signs, the writing must be
asked to sign ; excluded, because " there was produced).
1622
§§ 1325-1339]
MAGISTRATE'S REPORT.
§ 1329
has been reduced to -writing by a person of competent authority, the writing is in the first
instance, the only proper evidence of that testimony " ; Parke, B. : " That deposition is
the best evidence of what was said."
1875, Brett, J., in R. v. Taylor, 13 Cox Cr. 77: " Being before the magistrates, and the
law saying that the deposition is primary evidence, the deposition should be put in ; but
for that reason only."
This application of the principle, like the preceding one, was not recognized
till the 1700s ;^ but since that time it has been unquestioned in England.^
In the United States also it is accepted, with only an occasional contrary
ruling ; for there is no reason to discriminate between an accused's statement
and a witness' testimony, except so far as the statute may in the latter case
not impose the duty of reporting it in writing.^
The same qualifications here apply that have been noted for the case of
an accused's statement in the preceding sections. The preference being only
conditional upon the availability of the magistrate's report, any qualified
witness is receivable if the official written report is lost or otherwise inac-
cessible,* or if it is inadmissible because irregularly taken,^ or if it was never
People V. Curtis, 50 id. 95 (under P. C. § 869,
the magistrate's report is not preferred) ; Qa. :
1875, Cicero ;). State, 54 Ga. 156, 168(magistrate'3
examination, if taken, preferred to oral report,
and must be accounted for) ; 1882, Williams v.
State, 69 id. 11, 30 (whether the magistrate's
report of testimony is preferred to any other, left
undecided) ; 1900, Haines v. State, 109 id. 526,
35 S. E. 141 (magistrate's report, not preferred);
m. : 1899, Overtoom v. B. Co., 181 111. 323, 64
N. E. 898 (coroner's report of inquest-testimony,
preferred to party's stenographer's report) ; Ind. :
1878, Woods V.' State, 63 Ind. 353, 357 (oral
testimony excluded, where the examination had
been reduced to writing, in accordance with the
law ; unless the writing is unavailable) ; Mich. :
1868, Lightfoot v. People, 16 Mich. 507, 613
(said to be "presumptively the best evidence" ) ;
1889, People v. Hinchman, 75 id. 687, 589, 42
N. W. 1006 (preliminary examination ; report is
the "only admissible evidence," when "present
in Court ") ; N. J. : 1824, State v. Zellers, 7 N. J.
L. 220, 236 (coroner being obliged to take the
testimony in writing, other evidence of it was
rejected) ; S. C. : 1888, State v. Jones, 29 S. C.
201, 227, 7 S. E. 296 (coroner's report of testi-
mony, termed the " best evidence " ; Branham
case, ante, § 1328, approved); Tenn. : 1872,
Wade V. State, 7 Baxt. 80, 81, sembk (any one
may report the testimony, even if the magistrate
has taken it in writing) ; 1872, Titus v. State,
ib. 132, 137 (magistrate's writing is the "best
evidence of what she did say ").
* 1722, R. V. Eeason, 16 How. St. Tr. 31, 35
(magistrate's report required, "unless you show
you are disabled to do it by some accident or
other"; "unless the examination he lost");
1844, Pearce v. Furr, 2 Sm. & M. 64, 68 (lost
report of examination by magistrate ; magistrate
allowed to testify to the witness' testimony it-
self ; but the Court assumed this to be equiva-
lent to the contents of the paper).
» 1881, Roberts v. State, 68 Ala. 515, 525
1 1679, Wakeraan's Trial, 7 How. St. Tr. 691,
661 (Gates' examination before the Council,
proved orally by one of the Councillors) ; 1679,
Knox's Trial, ib. 763, 789 (justice's examination
proved orally by the justice).
2 1789, Warren Hastings' Trial, Lords' Jour-
nal, May 27 (Nuncomar's examination having
been taken down in writing, an oral report of it
was excluded) ; 1839, E. v. Taylor, 8 C. & P.
726 ; 1839, Leach v. Simpson, 5 M. & W. 309,
7 Dowl. Pr. 513 (applied to civil and criminal
cases equally) ; 1877, R. v. Dillon, 14 Cox Cr.
4 (an information in writing before a magistrate,
the charge itself being made orally ; the written
information required),
' To the following, add the cases, cited ante,
§§ 1262, 1263, requiring a deposition to be pro-
duced for contradicting a witness, and the cases
in the next notes infra : Ark. . 1839, Dunn v.
State, 2 Ark. 229, 248 (defendant's affidavit be-
fore coroner, and coroner's testimony on the
stand as to the examination before him, excluded,
the written report of the examination being
available) ; 1855, Atkins v. State, 16 id. 668,
588 (witness' prior inconsistent testimony before ^
magistrate ; deposition must be produced if
available) ; 1876, Talbot v. Wilkins, 31 id. 411,
421 (testimony before bankruptcy-commission-
ers ; written deposition "the only admissible
evidence") ; 1878, Shackelford v. State, 33 id.
539, 542 (deceased witness before examining
magistrate, the law requiring only a reduction
of the substance in general to writing ; oral evi-
dence allowed) ; 1894, Cole v. State, 59 id. 50,
52, 26 S. W. 377 (defendant's inconsistent tes-
timony at inquest ; coroner's report required) ;
Cal. : 1866, People n. Robles, 29 Cal. 421, sem-
He (magistrate's report not required) ; 1872,
Hobbs V. Duff, 43 id. 485, 490, semhle (written
record necessary ; here it showed that there had
been nothing to recoi-d) ; 1872, People v. Devine,
44 id. 452, 458 (contradiction in deposition ;
showing the deposition not required) ; 1875,
1623
§ 1329 EULES OF PEEFERENCE. [Chap. XLI
taken in writing at all ; ^ and it is assumed, until the contrary is shown,
that the magistrate has done his duty by making a written report.^
Whether the report may be shown to be erroneous or incomplete is another
question {post, § 1349).
§ 1330 (c) Report of Testimony at a Former Trial. (1) There has never
been, in the practice of the common law, any person required or even author-
ized by law to take in writing the testimony of the witnesses. Hence, the rule
from the beginning has always been that no preferred witness is recognized,
in proving testimony given at a former trial ; in other words, any one who
heard it may testify from recollection, with or without the aid {ante, §§ 737,
761) of written notes:
1810, Mansfield, C. J., in Doncaster v. Day, 3 Taunt. 262 : " What a witness has sworn
. . . may be given in evidence either from the judge's notes, or from notes that have
been taken by any other person who will swear to their accuracy ; or the former evidence
may be proved by any person who will swear from his memory to its having been
given." ^
(2) The report of a stenographer is no doubt more trustworthy in the ordi-
nary case than mere recollection ; but regard being had to the serious burden
of searching for a preferred source of evidence and of showing it to be un-
available (ante, § 1286), the advantage to be gained by requiring a steno-
graphic report to be used if available does not seem worth the inconvenience ;
and such an innovation is properly discouraged by the Courts :
1891, Mclver, J., in Brice v. Miller, 35 S. C. 537, 549, 15 S. E. 272: " While it may be
true that what a witness writes down himself, or what is contained in some paper written
by another and signed by himself, may be the best evidence of what the witness has said
on a former occasion, it does not follow that where a third person, be he stenographer or
not, takes down in writing what a witness said, this writing is the best evidence, in such
a sense as to exclude any other. Stenographers are no more infallible than any other
human being.s, and while as a rule they may be accurate, intelligent, and honest, they are
not always so ; and therefore it will not do to lay down as a rule that the stenographer's
notes when translated by him are the best evidence of what a witness has said, in such a
sense as to exclude the testimony of an intelligent bystander who has heard and paid par-
ticular attention to the testimony of the witness."^
(reduced to writing, but not signed ; any one § 1001 (provable hy "any one who heard it") ;
who heard, admissible) ; 1880, Brown v. State, 1870, Roth v. Smith, 54 111. 431 ; 1871, Hutch-
71 Ind. 470, 475 (the testimony being taken ings w. Corgan, 59 id. 70 (by a juror, admitted) ;
irregularly in writing, oral report was admitted) ; Oh. Rev. St. 1898, § 5242 a ; 1850, Kendrick v.
1840, People v. White, 24 Weud. 520, 533 (the State, 10 Hnmph. 479, 488.
witness' statement before the coroner may be Whether in malicioits prosecution the former
proved orally to contradict him, where the cor- testimony can be proved only by the witness
oner's writing was inadmissible) ; 1874, Alston himself involves another question (post, § 1416).
V. State, 41 Tex. 40 (irregularly taken ; oral re- « Accord: 1895, Sandei's v. State, 106 Ala. 4,
port admissible). 16 So. 935, sem.ble; 1893, Maxwell v. R. Co.,
«_ 1877, Nelson v. State, 32 Ark. 192, 196 1 Marv. 199, Del. Super., 40 Atl. 945 (report of
(perjury before a coroner ; the testimony not testimony taken before grand juryman ; a jury-
being reduced to writing, oral evidence allowed) ; man may testify to testimony there given yet
1882, Robinson v. State, 68 Ga. 833; 1872, not found in the report); 1894, German N.
Wade V. State, 7 Baxt. 80, 81. Bank v. Leonard, 40 Nebr. 676, 684, 59 N. W.
' 1779, R. V. Fearshire, 1 Leach Or. L., 3d 107 ; 1891, Brice v. Miller, 35 S. C. 537, 549,
ed., 240 ; and cases cited ante, §1327. Oontra: 15 S. E. 272 (quoted supra) ; 1898, Garrett v.
1875, People v. Curtis, 50 Cal. 95, semble. Weinberg, 54 id. 127, 31 S. E. 341 (stenogra-
1 Accord: 1685, Fernley's Trial, 11 How. St. pher's report not preferred to counsel's notes) ;
Tr. 381, 434 ; Ga. Code 1895, § 5186, Cr. C. 1897, Kellogg v. Scheuerman, 18 Wash. 293, 51
1624
§§ 1325-1339] STENOGEAPHER'S EEPORT. § 1331
That the stenographer is an official one does not make the case any stronger
so far as concerns the probable accuracy of the report ; nor does it bring the
case within the principle of the preceding sections, for the stenographer does
not act as an independent officer of the Court, but only under the orders of
the judge or the State's counsel ; in most jurisdictions the official duty of the
stenographer has not even sufficed to admit the reports as an exception to the
Hearsay rule {post, § 1669), and there seems little judicial disposition to
require such reports to be produced as preferred testimony.^ — Whether for-
mer testimony may be proved at all by a judge's notes or by any other hear-
say reports is another question {post, §§ 1666-1669).
§ 1331. {d) Deposition taken de bene esse ; Affidavit. A deposition, in the
narrow sense of the word, i. e. testimony given extrajudicially before a spe-
cially authorized officer for the purpose of subsequent use at a trial, stands
upon a footing entirely different from that of the preceding sorts of testimony.
In a deposition, the testimony is the writing taken down by the officer and
signed by the deponent. The officer's writing is not his report of the wit-
ness' oral deposition ; there is only one testimonial utterance, — the writing.
It is on its face singular that this difference of theory should be so solidly
established between a deposition in the narrow sense and the testimony be-
fore a committing magistrate, because in both cases the writing is commonly
required to be signed by the witness. But the explanation seems to lie in
the history of the two kinds of testimony. In the common-law theory of
trials, the testimony was what the witness said orally before the jury or the
magistrate. In the statute of 1554 (quoted ante, § 1326) the magistrate was
required to reduce it to writing ; but the general theory continued unaltered.
But at that time, and until the 1800s, there were in common-law practice no
depositions de bene (^post, § 1376). The power to order these taken was con-
ceived to be exercisable in Chancery alone, and the statutory conferring of
these powers on the common-law Courts in the 1800s was merely a grant of
such power and practice as had been recognized in Chancery. Now the
Chancery practice was moulded after the practice of the Canon law in the
Ecclesiastical Courts ; and in this practice all testimony was taken in writ-
ing, and in the theory the testimony or deposition was the writing and
nothing else. The result was that the statutory adoption of the Chancery
deposition-practice in the common-law Courts involved naturally the adoption
of its theory of testimony as applied to depositions. Thus, side by side, in
the common-law Courts, was found one theory for ordinary testimony and
another for depositions de bene.
Pac. 344 (stenographer's report of testimony of 467 (it "may be proved by any one who heard
defendant in malicious prosecution, not pre- and recollects it"). Hequired : ISdi, Carrico v.
ferred to defendant's own account of it) ; 1883, K. Oo., 39 W. Va. 86, 90, 19 S. E. 571 (but
Rounds V. State, 57 Wis. 45, 51, 14 N". W. 865 where the witness made an illustration not re-
(stenographic report of testimony of defendant ported, it was shown by other testimony). Com-
and witnesses, not preferred). Compare the pare Pa. St. 1887, P. & L. Dig. Witnesses, § 6
cases of contradictory testimony (ante, § 1263). (notes of former testimony may be used ; but
* Not required : 1886, Brown v. State, 76 Ga. oral proof suffices where the testimony is used
626 ; 1897, Hinshaw v. State, 147 Ind. 334, 47 merely to contradict) ; and the cases cited ante,
N. E. 157 ; 1876, State v. McDonald, 65 Me. § 1263.
1625
§ 1331 EULES OF PREFERElSrCE. [Chap. XLI
It results from this, of course, that the written deposition, being itself the
only testimonial utterance, must be produced, like any other writing, — a rule
unquestioned. Furthermore, if the written deposition is lost, the whole is
lost, for there is no other testimonial utterance ; hence, the terms of the lost
writing are the thing to be proved, not the oral answers to the questions.^
So, too, if the written deposition, being irregularly taken, is inadmissible, the
oral answers cannot be proved.
For an affidavit, as for a deposition, the writing is the sole testimonial utter-
ance ; and the deductions from this theory applies equally to aiSdavits.^
§ 1332. («) Dying Declarations, and other Extrajudicial Statements.
Here it is necessary to notice three discriminations, (a) Where A orally
makes a statement, and afterwards makes in writing a statement on the
same subject, the two are distinct, and the oral one may be proved without
regard to the writing, (b) Where A makes an oral statement, and B writes
down its terms, B's writing is merely B's statement of what A has said;
and unless B is a preferred witness, A's oral statement may be proved by
any hearer without calling for B's writing, (c) Where A and B are nego-
tiating, and the terms of the transaction are reduced to a writing adopted by
both, the oral negotiations become immaterial and the writing, being the
only act recognized in law, may alone be used, on the principle of integra-
tion (^post, § 2425). With these distinctions in mind, it remains to examine
the rules applicable to written testimonial statements admissible under
Hearsay exceptions.
(1) Dying declarations, (a) Where an auditor has made a written state-
ment of the declarant's oral utterances, this written statement is not pre-
ferred testimony, and therefore need not be produced ; ^ for there never was
any principle in the law of evidence preferring one person's written memo-
randum of testimony to another's oral or recollection testimony. Nor is the
case changed because the person thus making a written statement was a
magistrate having power to administer oaths or take testimony on a prelim-
inary hearing ; ^ for such a person has no duty or authority by law to report
dying declarations, and it is solely by virtue of an express duty, as we have
seen, that a magistrate's report of testimony is preferred to other witnesses,
(b) Where a written memorandum thus taken down is read over to the
declarant and signed by him, the writing becomes a second and distinct dec-
laration by him, and therefore on principle his first and oral declaration is
provable by any auditor without producing the second and written one.
Such is the result accepted by a few Courts;^ but the majority, misappre-
hending the nature of the written utterance, and proceeding apparently on
the mistaken analogy of a deposition, require the writing to be produced.^
Of course, if the written one is desired to be proved, it must be produced.
1 1840, Com. V. Stone, Thacher Cr. C. 604, = 1877, State i>. Kirkpatrick, 32 Ark. 117,
608 (a deposition in perpetuam was not recorded 119 (perjury by affidavit ; production required),
in season ; on a charge of perjury in it, the depo- ^ Cases cited post, § 1450.
sition not being receivable, the parol testimony * Cases cited post, § 1450.
was excluded).
1626
§§ 1325-1339] DYING DECLAEATIONS. § 1335
(c) Where the declarant makes one oral statement, and afterwards on a
separate occasion a second statement, the latter being in writing or orally
made hut taken down in writing and signed, there are here clearly two dis-
tinct statements (whatever view may be held as to (b) supra), and there-
fore the first or oral statement may be proved without producing the other
or written statement; this is generally accepted.^ Distinguish from this
question the operation of the principle of Completeness {post, § 2099), which
requires the whole of a single utterance to be proved, and not merely frag-
ments ; this principle has nothing to do with the mode of utterance as
written or oral; it requires that the whole, whether written or oral, be
proved, and it permits one separate utterance to be proved without regard
to another separate utterance, whether either or both are oral or written.
(2) Other statements admitted under Hearsay exceptions. In general, as
already noted, the writing down of one person's hearsay statement by an-
other person without a legal duty to report, cannot make the latter's writing
a preferred testimony.* It need only be added that the statements admis-
sible under exceptions to the Hearsay rule are in many instances originally
and solely written statements, — as, entries in the course of business, certi-
fications of copies, and the like, — so that the writing is required to be pro-
duced as the statement itself, and not merely as one person's report of
another's statement.
Sub-topic C : Sundry Preferred Witnesses.
§ 1335. Official Certificates. In general, our law of evidence regards with
no special favor the certificate of an official as to a thing done or seen by
him. It does not ordinarily even admit such a certificate as evidence under
an exception to the Hearsay rule (post, § 1674). But so far as statutory
provision has cured the objection of the Hearsay rule and made them ad-
missible, it has done nothing more ; no such weight attaches to them that
in general they become a preferred source of testimony. The effect of such
statutes is occasionally misunderstood, and their purpose as curing the
Hearsay defect is exaggerated into a purpose to prefer them as testimony ;
but such rulings must be looked upon as heterodox.^ Barring these hetero-
dox rulings, the general principle is so well established as to need only
occasional decision, that an official certificate is not a preferred source of
testimony as against other witnesses.^ It follows, in the spirit of the same
' Cases cited post, § 1450. of birth: 1829, Broussard v. Mallet, 8 Mart. n. s.
* 1855, Fackler v. Chapman, 20 Mo. 249, 269 ; 1834, Duplessis v. Kennedy, 6 La. 231,
253 (declarations of slaves written down by per- 242 ; 1836, Stein v. Stein, 9 id. 278, 280. Corn-
sons questioning them ; writing not preferred). ira: 1886, Com. v. Stevenson, 142 Mass. 466,
^ 1876, Fornette v. Carmichael, 41 Wis. 200 8 N. E. 341 ; 1888, Hermann v. State, 73 Wis.
(official scaling of logs, preferred testimony) ; 248, 41 N. W. 171 (baptismal certificate or regr
1882, Steele o. Schricker, 55 id. 134, 140, 12 ister, not prefeiTed to the mother's testimony).
N. "W. 396 (same). s 1880, Com. v. Damon, 128 Mass. 423 (like
In Louisiana, where Continental legal tradi- the next case) ; 1899, State v. Vaughan, 152
tions prevail and the exaltation of documentary Mo. 73, 53 S. W. 420 (coroner's report of post-
evidence is noticeable, this doctrine has been ap- mortem autopsy not preferred to an attendant
plied to prefer the register of baptism as proof physician's testimony) ; 1897, Duren v, Kee, 60
VOL. II.— 40 162'r
§ 1335 RULES OF PEEFERENCE. [Chap. XLI
general notion, that such a certificate is not preferred to the testimony on
the stand of the official himself.^
The practical difficulty, however, lies in distinguishing the application of
this settled principle from the principle of the " parol evidence " rule, or rule
of Integration {post, §§ 2427, 2450). By the latter principle, when an act
is done in writing or is required by law to be done in writing, the only
thing that can be material and provable is the writing itself. A parol act
is nothing, has no legal effect, and therefore cannot be proved. The ques-
tion thus often arises whether a particular official writing is merely an offi-
cial report of a distinct act done in parol and legally effective in parol, or
whether the official writing is the sole effective act ; for in the former aspect,
the official report of it is not a preferred testimony, and the parol act may
be proved by any competent witness ; while in the latter aspect the official
writing, being exclusively the act itself, must be produced. The solution of
such a question depends entirely on the substantive law defining the nature
of the act ; it is enough here to point out the nature of the problem.*
§ 1336. Same : Celebrant's Certificate of Marriage as preferred to Other
Eye-witnesses. In spite of long tradition to the contrary, the effort is fre-
quently made to persuade a Court to declare the celebrant's register or certifi-
cate of the performance of a marriage-ceremony to be a preferred testimony
to that of other eye-witnesses of the ceremony. No doubt the evidence of a
certificate is more trustworthy, in that, to be false its falsity would involve
either forgery or a crime equivalent to perjury, while that of a witness on
the stand would involve only perjury. But this relative advantage is not to
be considered (anfe, § 1286) in view of the serious burden of search or proof
of loss involved in preferring its production; while the testimony of the
celebrant is in itself no more valuable than that of any credible eye-witness.
That the register or certificate of marriage is not preferred to testimony of
other eye-witnesses has long been settled :
S. C. 444, 27 S. E. 875 (survey by judicial or- diet his own certificate is a different question
der not preferred). So also a publisher's statu- [ante, § 530).
tory affidavit of publication is not preferred : * The following cases will serve as illustra-
1882, Matthews •». Supervisors, 48 Mich. 587, tious: compare the cases cited posi, §§ 1352, 2427,
12 N. W. 863 ; 1893, Seattle v. Doran, 5 Wash. 2453 : 1859, Stearns v. Doe, 12 Gray 482, 486
482, 484, 32Pac. 105, 1002 (similar ; repudiating (register of ship not preferred to prove owner-
Wilson 0. Seattle, 2 id. 543, 549, 27 Pac. 474). ship ; possession or acts of ownership held com-
But distinguish Iverslie v. Spaulding, 1873, 32 petent) ; 1870, Wayland v. Ware, 104 Mass.
Wis. 394, 396 (affidavit of posting of notice of 46, 51 (record at the War Department of eu-
tax-sale ; being a part of the record of proceed- listed volunteers credited to a town, not pre-
ingg, its production was required). ferred evidence as to D.'s having been included
* 1830, Jackson v. Russell, 4 Wend. 543, in that enlistment ; the fact being one " which
547 (statutory certificate of a Surrogate that no may exist in and be proved by a record, but
will was filed, not preferred to other testimony ; which is not necessarily so to be proved");
"his certificate was made evidence for greater 1895, Com. v. Walker, 163 id. 226, 39 N. E.
convenience, not because it was a higher species 1014 (prison-keeper's record of prisoner's account
of evidence than his oath in open court"); of himself, not preferred) ; 1892, Curtis v. Wil-
1889, People v. Paquin, 74 Mich. 34, 36, 41 cox, 91 Mich. 229, 237, 51 N. W. 992 (clerk's
N. W. 852 (non-payment of liquor-tax ; county note of filing of mortgage, treated as the best
treasurer's record not preferred to oral testi- evidence) ; 1895, Nelson v. Bank, 16 C. C. A.
mony of his deputy) ; 1824, Perry v. Block, 1 425, 69 Fed. 800, 32 U. S. App. 554 (notary's
Mo. 484 (survey-plat not preferred to testimony certificate not required in proving demand, pre-
of surveyor). Whether the official may contra- seutment, and notice).
1628
§§ 1325-1339] OFFICIAL CERTIFICATE. § 1338
1840, Dr. Lushington, in Woods v. Woods, 2 Curt. Ecol. 516, 522 : " A register is not
to be considered the best evidence of a marriage, nor has it ever been so considered in
the books and authorities bearing on the question. The rule respecting best evidence is
that you are not allowed, where there is evidence of a superior character, to give inferior
evidence, unless you account for the non-production of the best evidence ; the effect of
which is to exclude all other evidence till the absence of the best evidence is accounted
for. But I am of opinion that the register is not iu contemplation of law the best
evidence, for these reasons : first, that registration is not necessary for the marriage
itself; secondly, that no error or blunder in the register could affect the validity of the
marriage; and thirdly, that registration is not like an agreement or a deed in writing
and the contents of which cannot be proved by viva voce evidence, but it is a mere record
afterwards of what has been done, . . . not the compact itself." ^
It has also been at times maintained that the particular persons signing the
register as attesting witnesses preferred to other eye-witnesses. This, and
the supposed rule that in actions for criminal conversation and prosecutions
for bigamy the eye-witnesses of the marriage-ceremony must be produced (in
the old phrase, that a " marriage in fact " must be proved), are in essence
rules of Quantity, not of Preference, and are therefore elsewhere examined
{post, §§ 2085-2088).
§ 1337. Same : Official or Certified Copies of Documents, as preferred to
Examined or Sworn Copies. There have also been Occasional attempts to
introduce a rule of preference for an official or certified copy of a public
document as against a sworn or examined copy. In the traditions of the
common law, the former sort was given so little regard, obnoxious as it was to
the Hearsay rule, that only ia a narrow class of cases — since much enlarged
by statute in later times — was it admitted at all {post, § 1677) ; much less
did it receive recognition as a preferred source of testimony. The reasons
for this, and the occasional success of the effort to lay down a rule of prefer-
ence, have already been dealt with in considering the rules for proving the
contents of documents {ante, § 1273).^
§ 1338. Preference of Copy-Witness to RecoUection-'Witness. In proving
the terms of a document not available in court, there is a decided differ-
ence of value between a witness who has written down the terms directly
upon reading the original — i. e. has made a copy — and a witness who trusts
wholly to recollection. Whether in any or in all cases the superior value of
a copy-witness should so outweigh the burden of requiring his production
that a rule of preference should be established {ante, § 1286) is a matter
that has much concerned the Courts. All the questions that concern rules
of preference as between copy-witnesses and recollection-witnesses, and
between different kinds of copy-witnesses, have already been considered else-
where {ante, §§ 1265-1275), in dealing with the modes of proving the con-
tents of documents. It need here only be said that to a limited extent, and
depending on special considerations, in harmony with those here noted {ante,
§ 1286), there is a rule of preference for copy-witnesses over recoUection-
^ The authorities are more conveniently col- certificate or register of baptism or birth, see
lected in one place, with other rules for proof of ante, § 1335.
marriage {post, § 2088). For cases preferring a i The authorities are there collected.
1629
§ 1338 EULES OF PREFERENCE. [Chap. XLI
witnesses. This forms therefore the third established specific rule of con-
ditional preference.
§ 1339. Sundry Preferences for Eye-witnesses and Other Non-Offioial Wit-
nesses (Writer of a Document, to prove Forgery ; Bank President or Cashier,
to prove Counterfeiting ; Surveyor, to prove Boundary ; etc.). It has already
been seen (ante, § 1286) that there is in general no principle of preference
among witnesses ; that such rules of preference are limited to a few definite
cases, of which the attesting-witness to a document's execution, the magis-
trate's official report of testimony, and the copy-witness to a document's
contents are the only established ones, — each of these resting on a peculiar
tradition or policy. Apart from these cases, a few attempts are recorded,
from time to time, to establish a rule of preference in sundry situations
where one class of persons is presumably better equipped testimonially than
another. These attempts for the most part invoke as authority a ruling ^
delivered under the influence of that indefinite "best evidence" notion so
often invoked for various purposes up to the end of the 1700s (ante, §§ 1173,
1174). This ruling in Williams v. East India Co. has long been repudiated
in England ; * but for a time it tended to produce considerable effect upon
the law of evidence in this country. In a few distinct lines of cases its
authority was thought particularly suggestive :
(1) It was thought that for proving the genuineness of a document the
alleged writer was a preferred witness ; ^ but it is generally conceded that
no such rule of preference exists.*
(2) As a specially fitting application of the preceding rule, it was for a long
time (until the era of State bank-currency ended) a much-agitated question
whether in proving the forgery of a document — particularly a hank-note —
the person whose name was forged (for example, the president or the cashier
of the bank) was not a preferred witness, as against (for example) one
who was familiar with the signature. This requirement received scanty
judicial support,^ and was generally negatived.® Yet statutes were in many
^ 1802, Williams v. East India Co., 3 East to prove that ? Why, the man who wrote it, in
193 (injmy by an explosive put on hoard a ship this and in every case, whether the matter he
witliout due notice ; the defendant's officer de- criminal or civil ").
livered it, and the first mate, deceased, received * 1885, Eoyce v. Gazan, 76 Ga. 79 ; 1821,
it ; the. plaintiff was held bound to call the Abat v. Riou, 9 Mart. La. 465, 466 (not decided);
defendant's officer, as the only remaining eye- 1873, Smith v. Valentine, 19 Minn. 452, 454
witness ; and his failure to call him was held (proving a decree signed by a judge ; the judge
ground for a non-suit). not preferred to the clerk of the court) ; 1836,
^ 1826, Koster v. Reed, 6 B. & C. 19 (insur- Osborne v. State, 9 Yerg. 488 (issuing justice
ance on a ship that never arrived ; a rumor not preferred to a constable, to authenticate an
being offered that the ship had foundered but execution); 1848, MoCuUys. Maloom, 9 Humph,
the crew escaped, held that it was not necessary 187, 192 (genuineness of a warrant ; the issuing
to call some of the crew or show diligent search justice not "• preferred witness, though present
for them; repudiating. such an application of in court).
the best-evidence principle ; Williams v. E. I. Co. • 1830, Cayford's Case, 7 Greenl. 57, 60 (presi-
was cited in argument). dent or cashier of a domestic bank must be
' 1796, Grose, J., in Stone's Trial, 25 How. called ; but not of a bank in another State).
St. Tr. 1313 (" Whenever you bring evidence for • 1801, E. o. M'Guire, 1 Leach Cr. L., 4th
the purpose of proving a fact, you must give the ed., 311, note, Chambre, J. ; 1802, R. v. Hughes,
best evidence. The fact intended to be proved ib., Le Blanc, J. (cashier, not preferred) ; 1886,
to the jury is that this came from Mr. Stone, Lefferts v. State, 49 N. J. L. 26, 27, 6 Atl. 621
written by hia order. Who is the best evidence (testimony of the supposed signer of a document,
1630
§§ 1325-1339]
EYE-WITNESSES, ETC.
1339
jurisdictions thought necessary for repudiating it7 To-day, it may be sup-
posed that no Court would sanction such a rule.
(3) It was suggested in a few jurisdictions that the surveyor of a loundary
was to be preferred to any other competent witness ; but this never received
any sanction.*
as to the signature's genuineness, not preferred
to one who knows his handwriting) ; 1831, Hess
V. State, 5 Oh. 5, 7 (teller of a bank, admitted
to testify to forgery of signatures of president
and cashier; "there is not such a distinction
between one whose knowledge is of his own
handwriting and the knowledge of another's on
the same subject as constitutes the former evi-
dence of a superior degree to the latter ") ; 1843,
Foulke's Case, 2 Rob. Va. 836, 841. Compare
also the cases cited wide, §§ 570, 705, some of
which Imply the same result, and arose out of
the same controversy.
' A few of these statutes, however (as in
Florida and Massachusetts), still recognize a
modified preference :- (7a». Crim. Code 1892,
§ 692 (on a trial involving counterfeit coin,
"any other credible witness suffices," and no
mint officer, etc., need be called) ; Ariz. P. C.
1887, § 1657 (forgery, etc., of bill or note of cor-
poration or bank; "persons of skill," compe-
tent to prove forged nature of document) ; Gal.
P. C. 1872, § 1107 (forgery, etc., of bank-bill ;
" persons of skill," admissible to prove counter-
feit nature of bill) ; Colo. Annot. Stats. 1891,
§ 1268 ("persons of skill," admissible to prove
forgery of bill or note of bank or company
on prosecution therefor) ; Fla. Rev. St. 1892,
§ 2910 (in prosecutions for forgery, etc., of bank-
notes, "the testimony of the president and
cashier of such banks may be dispensed with, if
their place of residence is out of the State or
more than 40 miles from the. place of trial ; and
the testimony of any person acquainted with the
signature of such president or cashier, or who
has knowledge of the difference in the appear-
ance of the true and counterfeit bills " is admis-
sible) ; Ida. Rev. St. 1887, § 7868 (forging, etc.,
a bill, etc., of an incorporated company or bank ;
"persons of skill," admissible to prove forgerj') ;
Ind. Rev. St. 1897, § 1892 ("cashier of a bank
purporting to have issued " a, note, bill, draft,
certificate of deposit, or other instrument, is a
sufficient witness to genuineness); la. Code 1897,
§ 4870 (forgery of bank-bill, etc.; "persons of
skill," admissible to prove bill, etc., to be coun-
terfeit) ; Kan. Gen. St. 1897, c. 102, § 226
("persons of skill, or experts" may testify to
genuineness of bill, etc., "or other writing") ;
Mass. Pub. St. 1882, c. 204, § 10, Rev. L. 1902,
c. 209, § 11 (in charges connected with counter-
feit bank-bills, the testimony of president or
cashier is not preferred if residing out of the
State or more than 40 miles from place of trial,
and testimony of other persons competent to dis-
tinguish the forgery is admissilile) ; Mich. St.
1851, Comp. L. 1897, § 11668 (in prosecutions
for forgery, etc., of bank-bills, " the testimony
of the president and cashier of such bank may
be dispensed with, if their place of residence
1631
shall be out of this State or more than 40 miles
from the place of trial, and the testimony of any
person acquainted with the signature of the
president or cashier of such banks, or who has
knowledge of the difference in appearance of the
true and counterfeit appearance of such bills or
notes " may be admitted) ; Minn. Gen. St. 1894,
§ 5763 (substantially like Mich. Comp. L.
§ 11668) ; Mont. P. C. 1895, § 2084 (like Cal.
P. C. § 1107) ; Nev. Gen. St. 1885, § 4646
("persons of skill," admissible to prove forged
nature of bill or note of incorporated company
or bank, on trial for forgery, etc.) ; N. M.
Comp. L. 1897, § 1178 (substantially like Mich.
Comp. L. § 11668) ; N. D. Rev. C. 1895, § 8216
(like Cal. P. C. § 1107); OH. Stats. 1893,
§ 5229 (like Cal. P. C. § 1107) ; Or. Or. C. 1892,
§ 1819 (in prosecutions forforging, etc., bank-bill,
" the testimony of any person acquainted with
the signature" of the officer authorized to sign,
"or who has knowledge of the difference in ap-
pearance of the true and counterfeit bills or notes
thereof," is admissible to prove the bill's coun-
teifeit character) ; Pa. St. 1852, P. & L. Dig.
Witnesses, § 7 (testimony of expert witnesses to
counterfeit paper, or coin, admissible, without
requiring proof "of the handwriting or the
other tests of genuineness " as heretofore) ; li. I.
Gen. L. 1896, c. 280, § 6 (counterfeit bank-bill ;
testimony of purporting signer shall not be
required when he is out of the State or resides
out of it or more than 30 miles distant, but any
competent witness knowing his hand, or familiar
with the difference between false and true bills
and skilled therein, is admissible) ; S. D. Stats.
1899, § 8673 (like Cal. P. C. § 1107); Utah
Rev. St. 1898, § 4857 (like Cal. P. C. § 1107) ;
Wash. C. & Stats. 1897, § 7132 ("Persons of
skill shall be competent witnesses to prove a
forgery"); IVis. Stats. 1898, § 4626 (substan-
tially like Mich. Comp. L. § 11668) ; Wyo.
Rev! St. 1887, § 934 (on trial for forgery, etc.,
of bill or note of incorporated company or bank,
" any person of skill may be witness " to prove
the forgery).
Add also the statutes which admit the affir
davit of a State or Federal treasurer to prove the
forgery of government paper (post, § 1710).
» 1809, Bowling v. Helm, 1 Bibb 88 (the
surveyor running a boundary, not' preferred to
any other witness) ; 1818, Grubbs v. Pickett,
1 A. K. Marsh. 263 (surveyor not preferred to
prove boundary-correspondence); 1860, Richard-
son V. Milburn, 17 Md. 67 (line of a fence-sur-
vey ; the testimony of the surveyor held not
preferable to that of an eye-witness) ; 1863,
Weaver v. Robinett, 17 Mo. 459 (boundary lines
provable by any one knowing them ; field notes,
survey, surveyor, or a witness of the survey, not
preferred) ; 1899, King v. Jordan, 46 W. Va.
§ 1339 EULES OF PREFERENCE. [Chap. XLI
(4) Where lack of consent was an essential element in a crime, — as, the
owner's lack of consent, in larceny, — it was suggested that the only person
who could certainly know the fact was the owner himself, and that he
should be called. This rule, however, which obtained a foothold in a few
jurisdictions, seems not to be in truth a rule of Preference, and is elsewhere
dealtxwith (post, § 2089).
(5) That which was merely a common practice in England came to be in
a few American jurisdictions a fixed rule; namely, that all the eye-witnesses of
a crime, so far as available, must be called by the prosecution, — a rule par-
ticularly invoked in prosecutions for homicide. It is not a rule of Pref-
erence, however, but a rule of Quantity, and is elsewhere dealt with {post,
§§ 2079-2081).
(6) In a few casual instances, attempts have been made, usually unsuc-
cessful, to introduce some specific rule of preference for which no authority
exists.'
From all such suggested rules of preference should be distinguished (as
already noted in § 1335) questions involving the principle of "parol evi-
dence" or Integration {post, §§ 2425, 2429), i. e. whether in a given instance
the act was done in writing. If an act is done in writing, the writing must
be produced in order to prove the terms of the act; but if the act as legally
done and effective was in parol, and the doer merely wrote down a memo-
randum of it, then the parol act may be proved without producing the writ-
ing, because there are no rules of preference which can require it instead of
other testimony. In which of these aspects a given transaction is properly
to be viewed depends entirely on the intent of the parties and the substan-
tive law applicable ; it is enough here to call attention to the nature of the
problem.!*
106, 32 S. E. 1022 (in ejectment, a plat or sur- Vairin v. Ins. Co., 10 Oh. 223, 225 (authority
vey of the lines is not essential evidence). hy vendee to vendor to hold a boat as collateral
That a map need not he official, nor a photo- security ; vendee not a preferred witness to the
graph be proved by the photographer, is noticed facts).
ante, § 794. '■'' The following cases will serve as illustra-
5 1814, Beeler v. Young, 3 Bibb 620 (in tions ; 1841, Pharr v. Bachelor, 3 Ala. 237, 246
proving age, a family Bible entry is not pre- (written appraisal of value, not preferred) ; 1850,
ferred to oral testimony) ; 1875, Elliott v. Van Sparks i). Rawls, 17 id. 211, 212 (invoice of goods;
Buren, 33 Mich. 49, 52 (fact and condition of testimony by maker as to value, received without
bodily injuries ; medical testimony not pre- producing invoice) ; 1890, Pelican Ins. Co. v.
ferred) ; 1825, Buckner i: Armour, 1 Mo. 535 Wilkerson, 53 Ark. 353, 356, 13 S. "W. 1103
(book-entrant not preferred, to prove items of (inventory required by insurance policy to be
goods sold, etc.); 1896, Domschke v. R. Co., kept; upon its loss without fault, other evidence
148 N. Y. 337, 42 N". E. 804 (the testimony of of amount of goods lost is admissible) ; 1899,
an owner, collecting his rents by an agent, as to Rissler v. Ins. Co., 150 Mo. 366, 51 S. W. 755
their amount, excluded in the absence of area- (account-books not preferred as evidence of sales);
son for not producing the agent, "who had per- 1834, People v. Peck, 11 Wend. 604, 611 (regis-
sonal knowledge," the former's testimony being ter of authorized church- voters, authorized by
"not the best evidence of the fact") 5 1840, statute, not preferred to other evidence).
1632
§§ 1345-1354]
BOOK I, PAET II, TITLE I.
§ 1345
Sub-title II (contin'ued) : RULES OF TESTIMONIAL PREFEEENCE.
Topic H: CONCLUSIVE (OR ABSOLUTE) PREFERENCES.
CHAPTER XLn.
§ 1345. Nature of a Conclusive Testimonial
Preference.
§ 1346. Cases involving the Integration
("Parol Evidence") Principle, distinguished
(Corporate Records, judicial Kecords, Contracts,
etc.).
§ 1347. Cases involving the Effect of Judg-
ments, distinguished (Judgments, Certificates of
Married Women's Acknowledgments, Sheriffs'
Returns, Judicially Established Copies, Laud
Oflice Rulings, etc. ).
§ 1348. Genuine Instances of Rules of Con-
clusive Preference ; General Considerations of
Policy and Theory applicable.
§ 1349. Same : (1) Magistrate's Report of
Testimony.
§ 1350. Same : (2) Enrolled Copy of Legisla-
tive Act ; may the Journals override it ?
§ 1351. Same : (3) Certificate of Election.
§1352. Same: (4) Sundry Official Records
and Certificates (Certificates of Jurat, of Ac-
knowledgment of Deed, of Record of Deed, of
Ship Registry, of Protest of Commercial Paper ;
Legislative Recitals in Statutes).
§ 1353. Constitutionality of Statutes making
Testimony Conclusive ; General Principles.
§ 1354. Same : Application of the Principles
(Liability in Tort, Contract, or Crime ; Pre-
sumptions as to Tax-Collectors' Deeds, Railroad
Commissioners' Rates, Immigration Officers' Cer-
tificates, Referees' Reports, Insolvency, Gaming,
etc.).
§ 1345. Nature of a Conclusive Testimonial Preference. The nature of a
conclusive preference as distinguished from a provisional preference (ante,
§ 1285) is in itself simple. In the latter, the preferred witness is to be called
first, so that his knowledge, whatever it amounts to, may be availed of ; but
when this has been done, the field is still open for other witnesses ; these
may support or they may contradict the preferred witness ; his testimony
is in no sense final. In short, the preference for him is provisional only,
and as against other witnesses it lasts only until his testimony is finished.
But in the former class, the preferred witness is not merely called first;
his testimony, when produced, is taken as final. No other witnesses will
be allowed ; the error of his testimony, if any, cannot be shown by other
and contradicting witnesses. In short, his testimony is conclusive.
That such a strict and absolute efi'ect should be conceded to any human
being's testimony is indeed extraordinary, and it may well be asked whether
our law of evidence recognizes any rule of preference of the conclusive
sort. May not the apparent cases of conclusive preference be explainable
as in truth results of other independent principles of substantive law,
sometimes loosely dealt with in terms of " conclusive evidence " ? No
doubt this is the true explanation of most of the instances in which such
a term is employed, and it remains to ascertain whether, after all such
explanations, there exist any instances of conclusive preference in the
shape of genuine rules of evidence. The various instances to which the
term " conclusive evidence " has been more or less plausibly applied may
be grouped into three classes, i. e. two classes of rules clearly non-evidential,
1633
§ 1345 CONCLUSIVE TESTIMONY. [Chap. XLII
and one class clearly evidential (so far as it has any recognition). The
first two must here be briefly considered.
§ 1346. Cases involving the Integration (" Parol Evidence ") Principle, dis-
tinguished (Corporate Records, Judicial Records, Contracts, etc.). There are
innumerable cases in- which a writing is regarded as the sole and exclusive
object of proof because of the "parol evidence" or Integration principle
(270st, §§ 2400, 2478). This principle assumes that, by some provision of
law, or by the parties' intent, the act effective in law is a single written
memorial, and that no parol act is to be regarded as of any effect for the
purpose. Where this is the situation, it is obvious that the terms of
the writing are alone to be proved ; the writing must be produced, or, if it
is unavailable, its terms must be proved. Here it is clear that the writing
is not " evidence," nor " conclusive evidence," of the act ; for it is the act.
That the writing cannot be shown to represent iuaccurately some prior
parol conduct, is not because the writing is conclusive evidence of what that
parol conduct was, but because the parol conduct is immaterial and in-
effective, and therefore (ante, § 2) cannot be proved at all. It is not because
we trust conclusively to the writing's testimony of what the parol conduct
was, but because we do not care what the parol conduct was, and are not
allowed to ascertain.
In consequence of this principle of Integration, then, the question is
constantly presented whether a specific writing has become the sole act
material to the case ; and this is purely a question of the substantive law
applicable to the kind of transaction involved. It is not a question of a rule
of evidence, — as later more particularly noted (post, § 2400). The treatment
of such questions would be here out of place and impracticable. It will be
enough to note some illustrations of the kind of problem presented. For
example, whether a corporate record can be shown to be incorrect depends
on whether by the substantive law a corporate doings to be effective must
be done in writing, — even though the question may be expressed by asking
whether the written record is conclusive.^ So where a surety gives bond
-to answer for an officiars defalcation, to hold that the State auditing books
-are not conclusive is to say that he, the surety, has contracted to be re-
sponsible for the actual amount missing, and not for the amount recorded
in the books as missing.^ So where a statute prohibited a town to main-
tain as a schoolmaster a person not having a certain certificate of quali-
fications, to hold that those qualifications could not be shown by evidence
without producing the certificate is not to hold the certificate conclusive
evidence of them, but to hold that the only fact material under the law
was the possession of a specific writing.^ So, in a prosecution for publish-
ing a seditious article in a newspaper, to hold that the proprietor's filing
1 1851, Gi-eeley v. Quimby, 22 N. H. 335, 338 » 1878, State v. Newton, 33 Ark. 276, 284.
("as the law required that the return of the ' 1819, Com. v. Dedham, 16 Mass. 141.
selectmen laying out the road should he in writ-
ing, no other proof can be substituted for it ") ;
nnd cases cited post, § 2451,
1634
§§ 1345-1354] OTHER RULES, DISTINGUISHED. § 1347
a sample copy at the registry-of&ce as required by statute is "conclusive
of publication " is merely to hold that the filing of such a copy is ian act of
publication for the purposes of the penal law.* Again, in an issue oyer the
boundary of land granted by the Government, a ruling that the official survey
is conclusive is not necessarily a ruling as to its conclusive testimonial
effect, but signifies that the survey is a part of the grantor's description of the
land conveyed, and is therefore part of the deed of grant.^ Other illustrations
are furnished in those cases where certain judicial action will be taken accord-
ing as a specific document does or does not exist, irrespective of any attempt
to ascertain and establish the truth of the assertions in the document. For
example, a person claiming to be a foreign envoy will be treated judicially as
such if the Executive has recognized him as such, irrespective of the truth of
the case ; ^ a foreign commission carried by a ship will be held " conclusive "
of its national character, i.e. no attempt to investigate further will be made ; ^
a judge's certificate as to what passed at a trial will be treated as " conclusive "
in an application for a new trial,^ i. e. so far as concerns the terms for granting
a new trial, one of them is that the trial judge's certificate shall state certain
things. In some jurisdictions the answer of a garnishee as to how far he is
chargeable shall be " conclusive," ® i. e. for the purpose of allowing the use of
garnishee-process, one of the terms of its allowance is that the garnishee's
statements, whether true or not, shall be the basis of action. Finally it may
be noted that a Court record is " conclusive " as to the proceedings of the
Court, not because it is a preferred source of evidence of the things actually
done in parol, but because it is itself the judicial act and the parol matters
are not the judicial acts.^"
§ 1347. Cases involving the Effect of Judgments, distinguished (Judgments,
Certificates qf Married Women's Ackncwledgments, Sherifis' Returns, Judicially
Established Copies, Land CCBce Kulings, etc.). In considering the effect to be
given to a judgment in another Court or cause, and especially a foreign
judgment, when offered to sustain an action brought to enforce it or pleaded
in defence to another action brought for the same claim, it is common to
speak of the judgment in terms of evidence and to describe its effect by the
phrase " conclusive evidence." ^ Is a judgment, then, an instance of a rule
of conclusive preference, making the other Court's certificate that Doe has or
has not a certain cause of action a conclusive testimony to that fact ? By no
means. The theory of the use of judgments is not a matter to be lightly
dogmatized about ; yet it seems clear that the operation of recognizing it in
* 1848, E, V. O'Doherty, 6 State Tr. N. s. « 1718, R. v. Mothersell, 1 Stra. 93; 1874,
831, 874. Exp. Gillebrand, L. E. 10 Ch. App. 52.
1901, Allmeudinger v. MoHie, 189 111. 308, ' 1896, Phillips v. Meagher, 166 Mass. 152,
59 liT. E. 517 (refusing to let a surveyor impeach 44 N. E. 136.
a recorded plat made by statute equivalent to a 1" Post, § 2450.
deed) ; 1814, Einggold i>. Gallowav, 3 H. & J. i E.g. Ellenborough, L. 0. J., in Hall v.
451, 461 ; 1897, Carter v. Hornback, 139 Mo. Obder, 11 East 118 ("evidence of the debt") ;
238, 40 S. W. 893. Brougham, L. C, iu Houlditch v. Donegal!, 2
6 Post, § 2574. CI. & F. 470 ("a foreign judgment isonly prima
' 1822, Santissima Trinidad, 7 "Wheat. 283, facie, not conclusive evidence of a debt").
335.
1635
§ 1347 CONCLUSIVE TESTIMONY. [Chap. XLII
support of a plaintiff or in defence of a defendant is upon analysis not at all
an employment of evidence. It is rather the lending of the Court's executive
aid, on certain terms, to a claimant or a defendant, without investigation of the
merits of fact. The closest analogy is that of an alias execution ; when the legal
effectiveness of a first execution has expired without the party's obtaining
satisfaction of the judgment, he may without a new trial reinvoke the execu-
tive aid of the Court and obtain a second writ of execution, because the
original judgment or order of the Court to make satisfaction has not yet been
fulfilled. In such a case the Court lends its executive aid because of its own
order or judgment already rendered ; there is no question of re-trying the
facts of the claim, but merely of whether and on what terms it will grant
anew its executive aid. Now the act of the Court in giving effect through its
own officers to a judgment in another Court or cause does not in its nature
differ from the issuance of an alias execution ; it differs only in regard to the
terms upon which this effect and aid will be granted. Not upon the mere
existence of another Court's judgment will the second Court lend its own aid ;
but only for certain kinds of judgments from the other Court. If the present
Court believes that there was in the other Court a fair and full investigation
of the facts, including a due summoning of parties bound to obey the
summons, an opportunity for the full hearing of evidence on both sides, and
an honest and intelligent deliberation by the tribunal over the evidence, then
the present Court will lend its enforcing aid as if to its own judgment. The
fairness, fulness, and legality of the other Court's investigation are merely
the main circumstances affecting the present Court's willingness to lend its
judicial aid and to treat the other Court's judgment or order as its own.
That a domestic judgment is ordinarily conclusive and cannot be collaterally
attacked involves in truth merely a general duty and practice of domestic
Courts to aid in enforcing one another's judgments without attempting to
investigate anew the truth of the facts thereby adjudged to exist. That a
foreign judgment by a Court not having jurisdiction, or by a Court imposed
upon by fraud, or by a Court acting itself fraudulently, will not be enforced,
is a proposition which in legal theory is precisely what it purports to be ;
namely, not the declining to take certain testimony as conclusive, but the
failure to give enforcement to an order by another Court which cannot be
enforced by this Court's officers unless this Court chooses to order it. The
important feature is that in either case — whether treating or not treating the
judgment as conclusive — there is no process of judicial investigation, resulting
in taking the judgment as the conclusive testimony to some ulterior and main
issue before the Court, but there is merely a declining or a granting the
Court's aid to carry out an order of another Court. If the judgment is recog-
nized as conclusive, then the plaintiff offering it is given an order to enforce
it, or, when it is pleaded in bar, is denied an order to enforce his claim. If
the judgment is not recognized as conclusive, then an action or a defence
based on it is rejected, and the state of facts as to the original claim is inves-
tigated in a practically distinct proceeding, in which the prior judgment
1636
§§ 1345-1354] OTHER RULES, DISTINGUISHED. § 1347
plays no part except in sometimes affecting the burden of proof. The mode
of dealing with a judgment, therefore, involves two alternatives. On the one
hand, the Court may act upon and enforce the other Court's judgment without
investigating the facts adjudged. On the other hand, it may decline to aid
in enforcing the other Court's order, and may investigate the facts for itself.
In neither alternative is the judgment used as conclusive evidence.^
It follows, then, that so far as any certificates, orders, findings, or other
official determinations are to be assimilated to judicial judgments, they will
be accepted by the Court and acted on as " conclusive," i. e. without allow-
ing a new investigation of the facts. How far certain kinds of official de-
terminations are thus to be assimilated to judicial judgments because of the
judicial nature of the proceedings in the course of which they were rendered,
is a question belonging to the law of Judgments, and not to the law of Evi-
dence. It may, however, be noted here that there are five sorts of such
documents (other than formal judgments of other Courts) as to which this
question of " conclusiveness " has been most commonly raised.
(1) The certificate of the magistrate, notary, justice, or other officer, taking
the privy examination and acknowledgment of a married woman that a deed
signed by her was executed of her own free will and with full knowledge,
was at common law not open to disproof of its correctness, because it was
regarded as in the nature of a judicial determination ; but other views have in
some jurisdictions prevailed, often in virtue of express statutory provision.^
(2) A sheriff's return, besides being admissible as an official statement
(post, § 1664), is also usually treated as conclusive (i. e. not to be shown erro-
neous) to the same extent that the other parts of the same judicial proceeding
are conclusively determined by the judgment, i. e. as against the parties and
their privies ; while as against the sheriff himself it will be affected by the
doctrines of estoppel.*
2 This theory of the nature of the act of S. E. 701; 1862, Truman v. Lore, 14 Oh. St.
enforcing another Court's judgment seems to 144, 151 ; 1903, Western Loan & S. Co. v.
harmonize with that of Mr. F. Piggott in his Waisman, — Wash. — , 73 Pac. 703.
acute and philosophic treatise on Foreign Judg- * The following cases will give a clue to the
ments, p. 20. distinctions and authorities: 1809, Gyfford v.
^ See the different theories expounded in the Woodgate, 2 Camp. 117 (not conclusive as to
following cases : 1828, Elliott v. Peirsol, 1 Pet. the consent of the plaintiff to an alias fi.fa.) ;
328; 1880, Johnson v. Van Velsor, 43 Mich. 1848, State «. Lawson, 8 Ark. 380, 384 (conclu-
208, 219; 1843, McNeely w. Rucker, 6 Blaokf. sive against himself, and in actions between third
391 ; 1870, Woodhead v. Foulds, 7 Bush 222 ; persons, hut not against the plaintiff in action
1898, Heaton u. Bank, 59 Kan. 281, 62 Pac. against the sheriff for wasting goods levied on ) ;
876 (citing oases) ; 1840, Harkins ». Forsyth, 11 1882, Hunt v. Weiner, 39 id. 70, 75 (creditor's
Leigh 294, 301 ; 1861, Dodge v. HoUinshead, bill ; return of nulla lona conclusive); 1827,
6 Minn. 25, 39 ; 1898, Davis v. Howard, 172 Watson v. Watson, 6 Conn. 334 (not conclusive
111. 340, 50 If. E. 258. on execution or mesne process) ; 1842, Niles v.
The following list will give a clue to the chief Hancock, 3 Mete. 568, 569 (return of service of
distinctions and authorities : 1893, Edinburgh copy of citation ; conclusive as to the copy's cor-
A. L. M. Co. V. People, 102 Ala. 241, 14 So. rectness) ; 1849, Browning v. Flanagin, 22 N. J.
656 ; '1885, Petty v. Grisard, 45 Ark. 117; 1856, L. 567, 573 (held conclusive as between debtor
Woods V. Polhemus, 8 Ind. 60, 66 ; 1859, Tatum and creditor and their privies, and also against
*. Goforth, 9 la. 247; 1870, Ford w. Teal, 7 Bush the sheriff himself always, but not in the sheriff's
156 ; 1877, Pribbleu. Hall, 13 id. 61, 65; 1873, favor ; here, not in an action for escape ; cases
Lockhart v. Camfield, 48 Miss. 470, 489 ; 1888, copiously cited); 1897, Campbell Co. v. Marder,
Mays V. Pryce, 95 Mo. 603, 612, 8 S. W. 50 Nebr. 283, 69 N. W. 774 (not conclusive).
731; 1897, Spivey v. Rose, 120 N. C. 163, 26
1637
§ 1347 EULES OF PREFERENCE. [Chap. XLII
(3) The establishment of a copy of a lost deed by judicial proceedings
allowed by statute for that purpose might be regarded as conclusive of
the terms of the deed, provided the result of the proceeding were regarded
as a judgment affecting all persons concerned ; but such does not seem to be
the effect generally conceded.^
(4) The obsolete " trial hy certificate '' (as when the fact of bastardy was
determined by certificate of the bishop offered in a common-law court) was
in reality the acceptance of a judgment of an ecclesiastical or other tribunal
upon a matter committed to its jurisdiction.^
(5) The certificate or ruling of an officer of the Federal land office is, upon
certain matters, in effect the judgment of a competent tribunal, and is there-
fore " conclusive." ''
§ 1348. Genutae Instances of Rules of Conclusive Preference ; General
Considerations of Policy and Theory applicable to them. After thus discrimi-
nating those instances of conclusiveness which in reality involve some appli-
cation of the principle of Integration or the principle of Judgments, it is
practicable to examine the cases in which some genuine rule of conclusive
testimonial preference is put forward for recognition. Certain general con-
siderations must first be noticed.
(1) The practical mark of distinction between instances of the "parol evi-
dence '' (or Integration) principle and genuine instances of conclusive prefer-
ences is this : When the writing in the former instance is lost or otherwise
unavailable in Court, then its terms must be proved by copy or otherwise,
and if it never existed as required by law, then nothing can be proved {post,
§§ 2425, 2453); while in a case of conclusive testimonial preference, if the
preferred testimony is not to be had, then the field is open to any other evi-
dence of the fact. For example, if a judicial record never was made, the
oral proceedings cannot be proved, because the only effective judicial act is
the writing ; ^ and if the record was made but has been lost, then the terms
of the lost writing, not the parol proceedings, must be proved.^ But in the
case of a magistrate's report of testimony taken before him,^ or an election
commission's certificate of the result of the election,* or the ofiicial enrol-
ment of a legislative act,^ the effective and material legal act is still the
testimony uttered, or the vote cast, or the yeas and nays voiced. Though
conclusive credit may be given to the report by the magistrate, or the com-
mission, or the presiding officer, still his document can never be legally any-
thing more than a testifying to the act of another person ; hence, though this
report if available may be treated as conclusive, yet if the report was never
made, then the effective act of testifying or voting may be otherwise proved,
" Cases cited ante, § 1273 ; post, § 1660. ' 1903, De Cambra v. Rogers, 189 U. S. 119,
6 1591, Abbot of Strata Mercella's Case, 9 Co. 23 Sup. 519.
Rep. 31a; 1628, Coke upon Littleton, 74 a; i- Sayles w. Briggs, 4 Mete. 421; pos<, §2450.
1768, Blackstone, Commentaries, III, 333 ; 1793, * Mandeville v. Reynolds, 68 N. Y. 628, 533 ;
Ilderton «. Ilderton, 2 H. Bl. 145, 156 (trial by post, § 2450.
bishop's certificate, held not applicable in a ' Ante, § 1327 ; post, § 1349.
Scotch dower case; the opinion brings out the * Post, § 1351.
jurisdictional nature of the controversy). " Post, § 1350.
1638
§§ 1345-1354] GENERAL PEINCIPLE. § 1348
and if the report was made but is unavailable through loss or destruction,
then also the testifying or voting may be otherwise proved. The preference
applies only when there exists a testimony available for the purposes of pref-
erence ; and the loss of the preferred testimony therefore leaves the testifying
or voting (since it is throughout the effective act for legal purposes) still prov-
able by such evidence as remains available.
(2) Upon what general considerations of policy, if at all, should any rule
of conclusive preference be recognized ? It is obvious that the recognition
of such a rule is an extreme step to take. It amounts almost to an abdica-
tion of the Court's judicial functions {post, § 1353). To forego investigation
into the existence of a fact because a certain officer not having judicial pow-
ers or opportunities of investigation has declared it to exist or not to exist,
and to accept his statement as conclusive and indisputable, is in effect to
refuse to exercise, as regards that specific fact, that function of the investi-
gation and final determination of disputes which is the peculiar attribute of
the Judiciary as distinguished from the Executive and the Legislature. That
the Court may, if it chooses, in dealing with evidence, take such a step
seems clear, — though whether the Legislature may constitutionally oblige
it to do so is another question {fost, § 1353). But obviously it is a step
which will not be taken except when clearly indispensable as the best prac-
tical method of settling disputes and giving stability to the interests of all
concerned. It would seem, a priori, that such a rule does become the most
practical solution in two kinds of situations, and in two only :
(a) A judicial judgment binds only the parties to the specific litigation, and
therefore the same question of fact must be investigated anew, even innu-
merable times, between parties not affected by prior judgments. There
may therefore be an analogous situation in which innumerable parties will
le affected hy a fact common to the rights or duties of all ; and this fact, in the
absence of a judicial proceeding binding on all, may be from time to time
differently determined by different juries and judgments in successive litiga-
tions. In such a case, all the rights of the innumerable parties affected by
this fact might be doomed to a perpetual instability ; for no one concerned
can predict what the issue will be in the possible litigation of innumerable
successive adversaries. It would therefore be highly desirable, if a definite
and trustworthy official certification of the fact had been authentically and
openly made, for the judiciary to announce as a settled rule that this official
certification would invariably be accepted in a judicial investigation as con-
clusive. Thus all the vital advantages of stability would be secured, and the
disadvantages of possible error could be regarded as comparatively trifling.
The typical, perhaps the sole case illustrating these conditions is that of the
officially enrolled copy of a legislative act, used as conclusive evidence of the
terms of the legislative enactment and the proceedings of its adoption {post,
§ 1350).
(h) It may occur that shortly after the doing of a legal act all ordinary
evidence of its doing and its terms is likely to become practically unavailable,
1639
§ 1348 . RULES OF PREFERENCE. [Chap. XLII
eitker because documents are destroyed or lost, or because witnesses are
tampered with or become incompetent or non-compellable to testify. If a
class of cases existed in which this dearth of satisfactory evidence habit-
ually occurred, and if at the same time a trustworthy official statement
of the fact as it was had been made close to the time of the fact and
with the most satisfactory data before the officer, it might well be thought
that on the whole a closer approach to the truth could be reached by accept-
ing the official statement as conclusive, instead of by making the attempt to
weigh the scanty or untrustworthy evidence that might be available for the
purposes of the subsequent judicial investigation. It would be essential for
such a situation that the official statement should be especially trustworthy,
that the ordinary evidence subsequently available should be especially un-
trustworthy or scanty, and that both of these features should habitually be
present in that class of disputes ; but, given these three conditions, the case
would seem to present a fair justification for refusing to investigate in the
ordinary way and for taking the official statement as conclusive testimony to
the fact in issue. The typical, and perhaps the sole case, illustratiag these
conditions, is that of an election officer's certificate as to the number and
tenor of votes cast and the qualifications of the voters {post, § 1351).
It may be added, finally, that wherever a rule of conclusive preference
can be laid down at all, it can apply only to a written official statement, not to
testimony on the stand. The statement must be official, because the sanctions
of the official oath should at least be present, or else the statement is no
more trustworthy than any other person's. The statement must be in lorit-
ing, because otherwise the recollection-testimony, even of an official, is no
better than another's recollection. No one has ever thought of suggesting
a rule of conclusive preference for any testimony other than official written
statements.
§ 1349. Same : (1) Magistrate's Report of Testimony. Where a commit-
ting magistrate is required by law to make a written report of the statement
of the accused person under examination and of the testimony of the wit-
nesses, this report, as already noticed {ante, §§ 1326-1329), must be produced
as a preferred testimony to the words of the statement and the testimony.
But is this report to be given such further and paramount weight that it is
to stand as conclusive and irrefragable by any evidence of its error ? In the
first place, it can hardly be contended that the express legal duty of the
magistrate to make the report invests it with such conclusiveness ; there is
certainly no such general principle applicable to statements made under
official duty. In the next place, the magistrate's report is not governed by
the "parol evidence" theory of judicial records {post, § 2450) ; for testimony
is not a judicial act ; and the theory of judicial records is merely that the
judicial act is originally done and constituted in writing, and the testimonial
utterance of a witness or the accused is distinct from any judicial act done
as a part of the record. Furthermore, neither of the general considerations
of necessity and policy (mentioned in § 1348, ante) can apply to the present
1640
§§1345-1354] MAGISTRATE'S KEPORT, §1349
case to make it desirable to take the magistrate's report as conclusive.
Finally, considering the circumstances under which such reports are drawn
up and the unfair consequences that may often follow from the inability to
expose their errors, policy seems rather to require that they should not be
treated as conclusive :
1844, Reporter's Note, to 2 Moody & Robinson 487 (approved by Alderson, B., in
1 Den. Cr. C. 542, as " admirably discussed ") : " [Questions may arise] as to the extent
to which other evidence is to be excluded ; in the determination of which the necessity
of the case, in some instances, the purposes of the enactment, in others, must be looked
to. Thus, judicial records are not only primary, but from their nature conclusive evidence
of the decisions of Courts of justice. . . . [But as to depositions taken in criminal trials,]
evidence is admissible by way of explanation, or to prove that the party made other
statements besides those reduced into writing ; otherwise the safety of prisoners and the
credit of witnesses would depend on the honesty and accuracy of the clerks who take
the examination. . . . Even if the entire examinations of the witnesses and the com-
mittal of a prisoner take place at the same time, it would seem most inconvenient, as
well as unreasonable, to make the written examination conclusive as to all the preliminary
statements of the witnesses on which it is founded."
The precedents on the subject must be considered separately for the case
of an accused person's statement and that of a witness' testimony ; for the
doctrine has received different treatment in the two cases. In connection
with both, it is to be remembered that the statutes on the subject of the
magistrate's duty (ante, § 1326) often require him to take down no more than
" the substance " of what was said or " so much as may be material " :
{a) The rule seems to have become settled in England during the 1800s
that the magistrate's report is conclusive as to the statement of the accused}
But this rule has been accepted in only a few American jurisdictions.* The
rule, as accepted, applies only to such utterances as the magistrate has pur-
ported to take down ; hence, utterances made at another time than the formal
statement, or at that time but apart from the formal statement, may be
proved by other testimony ; the general notion being that so far as the magis-
trate's report goes, it is not to be contradicted.^ It must be noted, on the
^ 1816, E, 11. Smith, 1 Stark. 242 (evidence times obscure precedents : 1835, R. v. Spilsbury,
denying the administration of the oath to the 7 C. & P. 187 (remarks by the defendant during
defendant when examined, excluded ; Le Blanc, the examination of the witnesses, and not when
J., " could not allow that which had been sent himself examined, admitted) ; 1838, R. v. Morse,
in under the hand of a magistrate to be dis- 8 id. 605 (blanks cannot be filled ; certain
puted ") ; 1833, R. v. Bentley, 6 C. & P. 148 names here omitted in the clerk's written report
(mistake in entering the defendant's statement of the testimony) ; 1846, R. v. Weller, 2 C. &
as a complaint, not allowed to be shown) ; 1833, K. 223 (remark of the defendant made while a
R. V. Lewis, ib. 161 ; 1836, R. v. "Walter, 7 id. witness was testifying, excluded ) ; 1850, R. «.
267; 1839, R. u. Pikesley, 9 id. 124 (that the Christopher, ib. 994 (the magistrate's notes
accused had been sworn). having been given to the clerk to write them
* See the cases in the next note, and also up in deposition-form, the clerk at his ofSce
these : 1874, Wright v. State, 60 Miss. 332 asked some additional questions, and wrote them
(" no parol evidence of what the prisoner may in; then in Court the depositions were later
have said on that occasion can be received " ; read over before the defendant and signed by
unless the writing cannot be had) ; 1898, Powell the witnesses ; held that the answers made to
V. State, — id. — , 23 So. 266 (other testimony the clerk could be asked for orally, as no part
inadmissible, where this is available ; it is "ex- of the depositions) ; 1881, Griffith v. State, 37
elusive ") ; 1901, Cunning «. State, 79 id. 284, Ark. 332 (testimony not allowed for answers not
"" ■ ' ■ " ■ -■ pgi
e- qu
1641
30 So. 658 (Wright v. State approved). recorded, but allowed for magistrate's warning
* Such seems to be the principle of the some- questions not recorded) ; 1790, State v. Wells,
§ 1349
RULES OF PREFERENCE.
[Chap. XLII
one hand, that even such utterances are not admissible if by the principles
of confessions {ante, §§ 842-852) the whole statement is not receivable.*
On the other hand, where the report has been read over to the accused and
he has expressly assented to its correctness by oral acknowledgment or by
signature, the writing is thus adopted as his own and becomes a statement
by him in writing ; he thus can no longer deny that it represents what he
said.* In the absence of such an acknowledgment, the whole doctrine that
the report is conclusive is (as already noted) ill-founded, and should be
repudiated. It may be added that the doctrine itself applies only so long as
the conclusively preferred testimony is available {ante, § 1348) ; and there-
fore if the magistrate's report was never taken or if it was lost, the case is
open for ordinary testimony.®
(6) The doctrine was also applied in England ^ to the magistrate's report
of the testimony of a witness, but was strictly confined to the testimony taken
in a criminal case before the committing magistrate.^ It has been occasion-
ally recognized in this country.^ The limitations already noted for the
report of an accused's statement would generally apply here also, mutatis
mutandis; in particular, other testimony may be used to prove utterances
made on a distinct occasion, or on the same occasion but not as a part of the
formal testimony, or even during the formal testimony but on matters addi-
tional to and not purporting to be covered by the magistrate's report.-'" The
1 N. J. L. 424, 429 (other confessions at other
times receivable ; but not other testimony of the
statements deposed to the magistrate).
* 1833, R. y. Lewis, 6 C. & P. 161 ; and
cases cited ante, § 1328.
» 1840, State v. Eaton, 3 Harringt. 554 (pre-
ferred and conclusive, but only when signed by
the accused or expressly admitted true); State
V. Harnian, ib. 567 (same); 1896, State v.
Steeves, 29 Or. 85, 43 Pac. 947 (the written
record of an oral statement made by an accused,
not under any statute, to a chief of police, and
signed by the former ; ' ' Oral statements, in-
tended to be reduced to writing, when committed
to paper and signed by the person making them,
are supplanted, and must of necessity be ex-
cluded, by the writing ").
Nevertheless, ou principle, the two are dis-
tinct statements (as noted ante, § 1332) ; and if
the attempt is not to contradict the writing, but
to show what the iirst and oral statement really
was, this would seem proper. Compare the cases
ou dying declarations (post, § 1450).
6 Cases cited aTUe, §§ 1327, 1329, and the
notes supra.
' But not originally ; see § 1326, ante, and
the I'ollowiug: 1679, Langhorn's Trial, 7 How.
St. Tr. 417, 467 (the Lords' Journal of an ex-
amination before them was ofifered to show that
Bedlow, the informer, did not there charge the
defendant; L. 0. J. Scroggs : "It is hut a
memorial taken by a clerk, and do you think
that his omission shall be conclusive to us ?").
8 1838, Robinson u. Vaughton, 8 C. & P.
252, 254 (applicable only in felony, " because
by an act of Parliament magistrates are bound
1642
to take down what the witnesses say ") ; 1843,
Jeans v. Wheedon, 2 Moo. & Rob. 486, Cress-
well, J., semhle (not applicable in malicious
prosecution) ; 1860, Filipowski v. Merryweather,
2 F. & F. 285, 287 (where the plaintiff's silent
acquiescence, as an admission of the witness'
statements, was to be shown, the deposition was
not required) ; 1896, R. v. Erdheim, 2 Q. B.
260, 269 (statute providing for the taking down
of a bankrupt's examination, reading over, and '
signing by him ; held, not exclusive of other
reports of the examination ; here, of oral testi-
mouy of the shorthand- writer ; compare Rowland
V. Ashby, infra).
9 1874, Broyles v. State, 47 Ind. 251, 254
(after using report of examination before justice,
oral evidence not allowed). Contra: 1881,
Griffith V. State, 37 Ark. 324, 332, semble (con-
tradicting a deceased witness by prior incon-
sistent statements ; the magistrate's writing did
not show that he had been asked about them
on the examination ; oral evidence of bystanders
that he was asked, allowed ; the preferable mode
being to have the magistrate amend his return) ;
1875, People v. Curtis, 50 Cal. 95 (not conclu-
sive, under P. C. § 869 ; at any rate, when not
signed by the witness) ; 1868, State v. Hull, 26
la. 293, 297 (not conclusive).
l» 1825, Rowland v. Ashby, Ry. & Mo. 231,
Best, C. J. (I'ommissioners in bankruptcy ; ad-
ditions allowed, but the remarks must be shown
by " clear and satisfactory evidence"); 1832,
R. V. Harris, Mood. Cr. C. 338, by all the
Judges (additions allowed) ; 1833, Venafra o.
Johnson, 1 Moo. & Rob. 316, C. P. (held proper
to prove " anything the party had said as a part
§§ 1345-1354] MAGISTEATE'S REPORT. § 1350
whole doctrine of conclusiveness, in the present application, as in the preced-
ing, is unsound.
(c) A magistrate's report of a dying declaration involves somewhat differ-
ent considerations.^^
{d) A magistrate's report of a deposition de hene involves a distinct theory.^'*
§ 1350. Same : (2) Enrolled Copy of Legislative Act ; may the Journals
override it ? After a proposed bill has been reported, amended, read on dif-
ferent occasions, passed by the originating House, sent to the other House
and there dealt with in the same way, the document thus enacted into a
statute consists of one or more sheets of the original paper together with
other writings or printings containing the tenor of the various legislative
dealings with them. This complex, representing the net result of those
dealings, is then copied out as a single document, and is certified by the pre-
siding of&cers of each House, in England also by the Great Seal, and in this
country usually by the Governor or President, and sometimes by a Secretary,
to be the act as passed. This certified copy, or enrolment, was by English
practice deposited in Chancery, but is in American practice usually deposited
with the Secretary of State. When the precise terms of the act are in issue,
or the legislative proceedings affecting its validity, is this enrolled copy
conclusive ?
(1) It seems clear, at the outset, that the enrolment is only somebody's cer-
tificate and copy, because the effective legal act of enactment is the dealing
of the Legislature with the original document, i. e. the viva voce vote. The
Legislature has not dealt by vote with the enrolled document ; the latter there-
fore can be only a certificate and copy of the transactions representing the
enactment.^ The enrolment is thus not a record in the sense of a judicial
record, *. e. the act done in writing {post, § 2450).
(2) Furthermore, it is clear that the legislative journals are not the original
enactment, for the viva voce vote is not given upon them. They are but official
statements of what has been done at a prior time, although the House may
have heard them read and approved them as correct. Thus, the question
whether the enrolled copy shall be conclusive as against the journal is only
a question whether an official report and copy of one degree of solemnity
and trustworthiness is to be preferred against another of a less degree.
of liis inforaiation, beyond what was put in deposition, that any particular statement alleged
writing, either for the pui'pose of explanation to have been made is not contained in it, you
or addition ") ; 1837, R. v. Coveney, 7 C. & P. may add to it. by parol evidence of that state-
667, Alderaon, B., and Patteson, J. ("There is ment").
a difference between adding and contradicting ; ''■ Cases cited post, § 1450.
I apprehend the object was to see that witnesses ^ Examined ante, § 1331.
did not swear a thing before the magistrate and * 1875, Moore, J., in Blessing v. Galveston,
contradict it at the trial") ; 1837, Resolutions 42 Tex. 641, 656 ("the signature of its officers
of Judges, ib. 676, Rule 3 (where a deposition and the approval of the Governor cannot, un-
does not mention a statement as having been questionably, make that law which has not been
made at the examination, either the witness enacted by the Legislature. They only furnish
may be asked to admit it, or, if he denies it, evidence, conclusive or otherwise, as may be
other witnesses may prove it) ; 1839, Leach v. held, of the enactment of the alleged law by the
Simpson, 7 Dowl. Pr. 513, 5 M. & W. 309, 312 Legislature ").
(Parke, B. : "If it appear, on production of the
VOL. n. — 41 1643
§ 1350
RULES OF PREFEEENCE.
[Chap. XLII
(3) On the other hand, it is well settled that the enrolled copy cannot be
shown erroneous or invalid by any other testimony than that of the journals,
— for example, the oral testimony of a member as to the number of votes
or readings, or the terms of an amendment, or a draft bill.^ Furthermore, it
is equally conceded on all hands that the journal cannot be shown erroneous
by similar testimony.^
With this preliminary survey of the limits of the problem,* we are in a
position to consider the question whether the copy enrolled under the hands
of the presiding officers authorized thereto is conclusive in every sense so as
to exclude contradiction by the testimony of the official journal : ^
statute-book); 1870, Central R. Co. v. Hearne,
32 Tex. 546, 562 (certified copy of the enrolled
act is the " best evidence," as against a printed
copy) ; (2) Whether the journal is receivable for
other purposes than to overthrow the enrolment ;
1878, State v. Smalls, 11 S. C. 262, 286 (bribery
by a member of the Senate ; the journal received
to show the matter pending) ; (3) Whether the
original of the journal must be produced-;
ante, § 1219 ; (4) Whether the printed copy
of the journals is admissible : post, § 1684 ; {5)
Whether, if the journal may be consulted, its
omissions are to be fatal or may be cured by pre-
sumption : 1898, Ee Taylor, 60 Kan. 87, 55 Pac.
340 ; 1898, State v. Long, 21 Mont. 26, 52 Pac.
645 (under the constitutional rule requiring the
fact of the signing of a bill to be entered on the
journal, the omission of the journal to show
the fact of signature was held immaterial) ; and
cases cited infra, note 5 ; (6) Whether the en-
rolled copy may be impeached in a collateral pro-
ceeding : 1 870, Brodnax v. Groom, 64 N. C. 244,
247 (whether 30 days' notice of application for
a private act had been given ; the certified copy
not impeachable collaterally ; here, not in an
application to enjoin the collection of a tax
under the statute); (7) Whether a recital or
preamble in a statute is conclusive : post, § 1352 ;
(8) Whether by stipulation, or judicial admis-
sion, an unconstitutional defect in the enrolled
copy can be waived: post, § 2591.
' In the following summary most of the
rulings against conclusiveness proceed upon the
ground that the Constitution expressly requires
certain legislative proceedings to be done or to
appear to be done ; this, as above noted, ought
properly not to affect the result ; nevertheless
such Courts might at the same time hold the
enrolment conclusive as to the tenor of the aet ;
the nature of the fact to be proved has for that
reason been noted below ; but lack of space for-
bids noting the constitutional provisions. In
point of- numbers, the jurisdictions are divided
almost equally pro and con the general prin-
ciple (of these two or three have changed from
their original position) ; two or three adopt a
special variety of view (as in Illinois), three or
four are not clear, and more than a dozen have not
yet made their decision : England : 1606, the
Prince's Case, 8 Co. Rep. 13, semble (enrolment
conclusive) ; 1617, R. v. Arundel, Hob. 109
(whether a certain provision was in a private
act, such acts being filed without enrolment but
« 1898, Cutcher v. Crawford, 105 Ga. 180, 31
S. E. 139 (whether a pi'eliminary local election
had been held ; the statutory preamble not to
be contradicted by a minority report in the jour-
nal nor by an election return); 1890, Speer v.
Athens, 86 Ga. 49, 11 S. E. 802 (that public no-
tice had not been given for a local act ; not ad-
mitted) ; 1884, Passaic Co. v. Stevenson, 46
N. J. L. 173, 184 (under a constitutional pro-
vision requiring public notice of a local bill, and
the preservation of the evidence of notice, the
fact of notice may be proved otherwise than by
the act and the journals ; Dixon, J., diss.) ; 1870,
Brodnax v. Groom, 64 N. C. 244, 248 (fact of
no public notice of a local bill, not provable) ;
1855, Pease w. Peck, 18 How. 595 (whether the
manuscript of a statute as reported by the
commissioners should control the printed law
as sanctioned by the Legislature in repeated
revisions).
3 1896, Fullington v. Williams, 9S Ga. 807, 27
S. E. 183 (as to notice of intention required before
oti'ering a bill) ; 1897, Oohn v. Kingsley, — Ida.
— , 49 Pac. 985 (whether a bill was read the
second time) ; 1858, McCuUoch v. State, 11 Ind.
424, 430 (though where they are silent, lawful
action will be presumed) ; 1900, Taylor v. Beck-
ham, 108 Ky. 278, 56 S. W. 177 ; 1883, Koehler
V. Hill, 60 la. 543, 560, 14 N. W. 738, 15 N. W.
609 (oral testimony by a member of the Senate,
not receivable to contradict the journal, if in
existence) ; 1887, Attorney-General v. Rice, 64
Mich. 385, 389, 31 N. W. 165 (whether a bill's
title expressed its object; parol testimony to
contradict the journal, inadmissible) ; 1889,
Sackrideru. Supervisors, 79 id. 59, 66, 44 N. W.
165 (same) ; 1898, Jie Granger, 56 Nebr. 260, 76
N. \V. 588 (journals not allowed to be contra-
dicted by original draft of bill with indorse-
ments) ; 1903, Wilson v. Markley, — N. C. — ,
,45 S. E. 1023 ; 1832, State v. Moffitt, 5 Oh. 223,
5 Haram. 358 ; 1886, State v. Smith, 44 Oh. St.
348, 364, 7 N". E. 447, 12 N. E. 829. Add also
the cases as to bribery, post, note 11.
* The following questions are also to be dis-
tinguished : (1) Whether the enrolled- copy over-
rides a printed copy: 1883, Pacific R. Co. v. Sei-
fert, 79 Mo. 210, 212 (a printed law imposed a fine
of $20 ; the statute-roll reading " $90," held not
to override this in action for penalty); 1896,
Bruce v. State, 48 Nebr. 570, 67 N. W. 454 (the
enrolled act, properly certified, approved, and
deposited, is conclusive as against the official
1644
§§ 1345-1354] ENROLLED STATUTE vs. JOURNALS.
1350
The arguments in favor of allowing the journals to he consulted for that
purpose are sufficiently stated in the following passage, and in the succeeding
quotations dealing with the answers to them :
1852, Murray, C. J., in Fowler v. Pierce, 2 Cal. 165, "If such matters cannot be in-
quired into, the wholesome restrictions which the Constitution imposes on legislative and
under the Great Seal ; "Now suppose that the
journal were erery way full and perfect, yet it
hath no power to satisfy, destroy, or weaken the
act, which being a high record must be tried
only by itself, teste meipso. Now journals are
no records, but remembrances for forms of pro-
ceeding to the record ; they ai-e not [kept] of
necessity, nor have they always been. They are
like the docket of the prothonotaries or the par-
ticular to the King's patents. . . . The journal
is of good use for the observation of the generally
and raaterialty of proceedings and deliberations
as to the three readings of any bill, the inter-
courses between the two houses, and the like ;
but when the act is passed, the journal is ex-
pired ") ; 1637, Hampden's Trial, 3 How. St. Tr.
82,5, 1153, 1236 (the statute de tallagio non eon-
cedendo, conceded to be a statute, though not
found on the Rolls of Parliament) ; 1649, Bowes
V. Broadhead, Style 155 ("Upon view of the
Parliament Roll, ... It was found that the
Statute was rightly recited, notwithstanding
what had been objected and the journal-book of
Parliament produced to the contrary ; . . . and
the Court said they were to be ruled by the Par-
liament Roll, and not the journal-book " ; and
in another ease the same day the Roll was ordered
produced, "to make it appear whether an ad-
journment of Parliament was well recited," and
the Court "would not credit the journal-
book"); 1650, Jurisdiction of the Court of
Chancery, 1 Ch. Rep., App. 52 (an account of
the making up of a statute-roll and of the mode
of determining a disputed text ; nothing said
of the journals) ; 1653, Streater's Trial, 5
How. St. Tr. 365, 387 ; L. C. J. Roll : " Now
whereas you say, it is but an order of Parlia-
ment, and has not been three times read in the
House ; how can you tell but that it has been
three times read ? . . . But if it were but once
read, we cannot call it into question, but must
conceive it was on just grounds") ; 1725, L. C.
Macclesfield's Trial, 16 id. 767, 1334, 1388 (here
it appears that under the original sj'stem there
was a " parliament-roll " and a "statute-roll,"
but the former, from which the latter was made
up, appears to have been entirely distinct from
the journal) '; ante, 1726, Gilbert, Evidence, 7,
10 (" the memorials of the legislature . . . are
authentic beyond all manner of contradiction ") ;
1764, R. u. Robotham, 3 Burr. 1472 (a clear mis-
take of words in the enrolment appeared, but no
resort was had to the journals) ; 1831, R. v.
Middlesex, 2 B. & Ad. 818, 821 (until a certain
statute, " if two acts of Parliament passed in the
same session were repugnant, it was not possible
to know which of them received the royal assent
first, for there was then no indorsement on the
roll of the day when bills received the royal as-
sent ") ; for the modern method of drafting and
1645
enacting a bill in England, see Ilbert's Legisla-
tive Methods and Forms (1901), 89, 105; Ala-
bama: 1868, Jones v. Hutchinson, 43 Ala. 721,
723 (whether a portion of a bill had been con-
curred in, etc.; journals consulted, "to ascer-
tain whether it has a legal existence " ; citing
only the California and Illinois cases, with P. v,
Purdy, New York, but affirming the doctrine as
"well settled") ; 1872, Moody v. State, 48 id.
116 (whether certain amendments as passed were
omitted ; journals examined) ; 1875, State v.
Buckley, 64 id. 599, 613 (whether yeas and
nays were taken ; journals consulted) ; 1876,
Hai-rison v. Gordj', 57 id. 49 (doctrine ap]ilied to
notice of a bill) ; 1877, Walker v. Griffith, 60
id. 361, 364 (jdurnals may be looked to, for ascer-
taining the constitutional requirements ; but
their silence does not require investigation ;
though in constitutionally specified cases their
silence is conclusive) ; 1884, Sayre v. Pollard,
77 id. 608 (doctrine applied to error in enrol-
ment) ; Moog V. Randolph, ib. 597, 600 (same) ;
1885, Abernathy v. State, 78 id. 411, 414
(same) ; Stein v. Leeper, ib. 517, 521 ; 1886,
Hall V. Steele, 82 id. 562, 565, 2 So. 650 (doc-
trine applied to notice of a bill) ; 1898, Ex parte
Howard H. I. Co., 119 id. 484, 24 So. 616
(terms of an act; journals consulted) ; 1899,
O'Hara v. State, 121 id. 28, 25 So. 622 (whether
a bill was properly signed and voted for ; jour-
nals consulted) ; 1900, Montgomery B. B. W.
V. Gaston, 126 id. 425, 28 So. 497 (whether
a bill was duly passed ; journals consulted ;
another case illustrating the practical disad-
vantages of this rule) ; 1901, Robertson v.
State, 130 id. 164, 30 So. 494 (journals con-
sulted) ; 1902, Jackson v. State, 131 id. 21,
31 So. 380 (same ; terms of an amendment) ;
Arizona: 1876, Graves v. Alsap, 1 Ariz. 274,
282, 310, 318, 25 Pac. 836 (whether a statute
not found among the certified files was in exist-
ence ; journals not examined ; Dunne, C. J.,
diss., because the attempt was merely to show
the contents of the certified statute as a lost
document and not to question its evidential
force) ; 1895, Harwood v. Wentworth, — id.
— , 42 Pac. i025 (journals not to be consulted ;
here the purpose was to show that two sections
were omitted from the bill after passing and be-
fore enrolling) ; Arkansas: 1857, Burr v. Ross,
19 Ark. 250 (whether a bill was voted to pas-
sage ; journals examined) ; 1871, Knox v. Viu-
sant, 27 id. 266, 278 (whether a bill was read
three times ; journals consulted) ; 1873, English
V. Oliver, 28 id. 317, 320 (whether a bill was
read three times, etc. ; journals consulted) :
1877, State v. R. Co., 31 id. 701, 711, 716
(whether an act took effect within a certain time
after adjournment ; journals consulted to learn
the time of adjournment ; whether a bill was
§ 1350
EULES OF PREFERENCE.
[Chap. XLII
executive action become a dead letter, and Courts would be compelled to administer laws
made in violation of private and public rights, without power to interfere. The fact that
ilie law-making power is limited by rules of government, and its acts receive judicial ex-
position from the Courts, carries with it, by implication, the power of inquiring how far
vend three times, etc. ; journals consulted) ;
1877, Worthen v. Badgett, 32 id. 496, 611
(fi hether a hill was read three times, etc. ; jour-
uals consulted) ; 1878, Smithee v. Garth, 33 id.
1 7, 23 (whether the votes had heen entered, etc. ;
jouruals consulted) ; 1879, State v. Crawford, 35
id. 2.37, 243 (whether a bill was properly read ;
journals consulted) ; 1882, Chicot Co. v. Davies,
40 id. 200, 205 (whether a bill was read three
times ; journals consulted ; whether the enrolled
act corresponded to the bill passed ; journals
and original draft consulted) ; 1883, Sniithee v.
Campbell, 41 id. 471, 475 (whether an amend-
ment was enacted ; journals consulted) ; 1884,
"Webster v. Little Rock, 44 id. 536, 547 (whether
a bill had been duly read ; journals consulted ;
rule treated as settled, but disapproved) ; 1886,
Davis V. Gaines, 48 id. 370, 384, 3 S. W. 184
(doctrine not applied to notice of a bill required
by Constitutiou); 1887, Dow v. Beidelman, 49
id. 325, 333, 5 S. W. 297 (doctrine applied to
error in enrolment) ; 1889, Glidewell v. Martin,
51 id. 559, 566, 11 S. W. 882 (doctrine applied
to question of due reading ; but disapproved) ;
Califonda : 1852, Fowler v. Pierce, 2 Cal. 165
(whether an act was approved after adjourn-
ment ; oral evidence received ; quoted supra) ;
1866, Sherman v. Story, 30 id. 253, 256 (whether
a rejected amendment had been incorporated in
the act ; journals not to be consulted, nor the
original bill ; as to Fowler v. Pierce, "possibly
it may be distinguished, . . . but if not, it
must be overruled ") ; 1872, People v. Burt, 43
id. 560, 564 (Sherman v. Story approved); 1880,
"Weill y. Kenfield, 54 id. Ill (whether there was
due reading ; journals consulted ; prior rulings
ignored) ; 1882, Railroad Tax Case, 8 Sawyer
238, 293, per Sawyer, J. (whether a bill was
finally passed ; journals consulted) ; 1886, Oak-
land P. Co. 0. Hilton, 69 Cal. 479, 489, 496, 11
Pac. 3 (constitutional amendment required by
Constitution to be entered on journals when pro-
posed ; journals consulted ; but Sherman v.
Story treated as law) ; 1889, People v. Dunn,
80 id. 211, 22 Pac. 140 (question not decided) ;
1896, Hale j;. McGettigau, 114 id. 112, 45 Pac.
1049 (question reserved); 1901, Yolo Co. v.
Colgan, 132 id. 265, 64 Pac. 403 (whether the
required number of votes had been given ; jour-
nals not consulted ; Sherman v. Story followed) ;
1901, People v. Harlan, 133 id. 16, 65 Pac. 9
(preceding case approved); Colorado: 1881, Ee
Roberts, 5 Colo. 525 (due passage ; journals may
be cousulted) ; 1888, Hughes v. Felton, 11 id.
489, 492, 19 Pac. 444 (doctrine implied) ; 1894,
Kesbit V. People, 19 id. 441, 446, 451, 36 Pac.
221 (whether proposed constitutional amend-
ments were validly passed ; journals consulted) ;
1894, Robertson v. People, 20 id. 279, 283, 38
Pac. 326 (due concurrence of vote of Houses ;
journals consulted) ; Connecticut : 1849, Eld v.
Gorham, 20 Conn. 8, 15 (certified published copy
of revised statutes, deposited with the Secretary
of State and legislatively declared authentic, is
the sole record of the law) ; Dakota : 1889, Terr.
V. O'Connor, 5 Dak. T. 397, 415, 41 N. W. 746
(question reserved) ; Florida : 1884, State v.
Brown, 20 Fla. 407, 419 (whether an amend-
ment had been omitted from the enrolment, and
whether due reading had occurred ; journals
consulted) ; 1888, State v. Deal, 24 id. 293, 294,
4 So. 899 (error in enrolment ; journals con-
sulted) ; 1893, Matins v. State, 31 id. 291, 303,
12 So. 681 (due enactment of revised statutes ;
journals consulted) ; 1895, State v. Hocker, 36
id. 358, 18 So. 767 (that an act was not read
in the Senate, and was not read by sections
in either house; journals consulted); Idalw :
1895, "Wright o. Kelly, — id. — , 43 Pac. 565
(journals not to be examined in a collateral
proceediug ; here, mandamus against county
officers); 1896, Blaine Co. w. Heard, — id. — ,
45 Pac. 890 (journals may be examined to see
whether constitutional requirements were com-
plied with); 1897, Cohn V. Kiugsley, — id. — ,
49 Pac. 485 (journals may be consulted) ; 1897,
State V. Boise, — id. — , 51 Pac. 110 (in pass-
ing upon constitutionality, copy of the journals
must be produced); Illinois: 1846, People v.
Campbell, 8 111. 466, 468 (journals referred to
on the question of a third reading, and a joint
resolution held invalid) ; 1853, Spangler v. Ja-
coby, 14 id. 297 (whether a final vote was had ;
journals consulted, because the Constitution re-
quired the votes on final passage to be entered in
the journal) ; 1855, Turley v. Logan, 17 id. 151
(whether a bill was properly read ; journals con-
sulted) ; 1857, Prescott v. Board, 19 id. 324
(whether a bill had been amended and enacted ;
journals consulted) ; 1861, Board v. People, 25
id. 181 (whether a bill was read three times ;
journals consulted) ; 1863, People v. Hatch, 33
id. 9, 132 (adjournment before executive dis-
approval ; journals consulted) ; 1864, People ii.
Starne, 35 id. 121, 135 (whether a bill was acted
on ; journals consulted ; doctrine rested on the
constitutional requirement as to enactment, and
doubted as a matter of policy) ; 1865, Wabash
R. Co. V. Hughes, 38 id. 174, 185 (whether a
bill was presented to the Governor and returned ;
journals consulted) ; 1867, Illinois C. R. Co. v.
Wren, 43 id. 77 (whether the yeas and nays were
called ; journals may be consulted) ; 1867, Bed-
ard V. Hall, 44 id. 91 (same doctrine implied);
1871, People v. DeWolf, 62 id. 253 (whether a
majority had concurred ; journals consulted) ;
1872, Hensoldt v. Petersburg, 63 id. 157 (doc-
trine implied) ; 1873, Ryan v. Lynch, 68 id. 160,
164 (due reading ; doctrine applied) ; 1873,
Miller v. Goodwin, 70 id. 659 (whether a stat-
ute was properly passed ; journals consulted) ;
1874, Plummer v. State, 74 id. 361, 362 (pro-
priety of act's title ; journals consulted) ; 1875,
Larrison v. R. Co., 77 id. 11 (whether a bill was
properly read, etc. ; journals consulted); 1876,
Binz V. Weber, 81 id. 288 (propriety of title ;
1646
1345-1354] ENEOLLED STATUTE vs. JOURNALS,
1350
those exercising the law-making power have proceeded constitutionally. ... It is said
that parties would in every case dispute the existence of the law, and that such practice
•would lead to confusion and perjury. I have already said that this is a question for the
Court. And why should not the citizen whose life, property, or liberty is made forfeit
journals consulted) ; 1879, People v. Loewen-
thal, 93 id. 191, 205 (duo passage of amendment ;
journals consulted) ; 1876, Ottawa v. Perkins,
94 U. S. 260 (the Illinois rule declared to ad-
mit reference to the journals to overthrow the
enrolled act ; four judges dissenting, hut on tlie
question whether the journals must be offered in
evidence) ; 1881, Post v. Supervisors, 105 id.
667 (same decision) ; 1881, Wenner v. Thorn-
ton, 98 111. 156, 163 (due passage ; journals con-
sulted) ; 1887, Burritt v. Coni'rs, 120 id. 323,
332 (due passage ; journals consulted) ; 1902,
Chicago Telephone Co. o. Northwestern T. Co.,
199 id. 324, 65 N. E. 329 (prior doctrine ap-
plied); Indiana: 1851, Skinner u. Dening, 2
Ind. 558 (whether a two-thirds vote had been
given ; journals consulted ; purporting to follow
Purdy V. People, N. Y.) ; 1856, Coleman a.
Dobbins, 8 id. 156, 159 (whether a bill was read
three times; journals proper to be examined);
1858, McCullock v. State, 11 id. 424, 429, 435
(whether a constitutional majority voted ; jour-
nals examined) ; 1869, Evans v. Browne, 30 id.
514 (whether a constitutional quorum had voted ;
journals not allowed to overthrow the duly cer-
tified act ; preceding rulings repudiated) ; 1876,
Bender v. State, 63 id. 254 (whether an act was
duly presented to the Governor before adjourn-
ment ; enrolment conclusive) ; 1880, Edger v.
Board, 70 id. 331, 338 (rule maintained ; but
journals consulted to interpret); Iowa: 1857,
State V. Clare, 5 la. 608 (certified act on file is '
the " ultimate proof of the law " ; here, as
against a printed copy) ; 1869, State v. Donehey,
8 id. 396 (similar) ; 1861, Duncombe v. Prindle,
12 id. 1, 11 (whether a passage was omitted from
the original bill ; " behind this [the enrolled
act] it is impossible for any Court to go for the
purpose of ascertaining what the law is "); 1883,
Koehler v. Hill, 60 id. 543, 668, 591 (contents
of a constitutional amendment, under a require-
ment that the terms be entered at length upon
the journal ; the journal held to override the
enrolled act; Beck, J., diss.. In a valuable
opinion); Kansas: 1874, Haynes c. Heller, 12
Kan. 381, 383, 393 (question not decided) ;
1875, Division of Howard Co., 15 id. 194, 211
(error in enrolment ; journals may be consulted,
but not engrossed bill); 1876, Commissioners
■c. Higginbotham, 17 id. 62, 78 (whether a bill
was duly passed; journals consulted); 1881,
Constitutional Prohibitory Amendment, 24 id.
700 (proposed constitutional amendment re-
quired to be entered on journals ; journals con-
sulted); 1882, State v. Francis, 26 id. 724, 731
(whether a majority voted ; journals consulted) ;
1882, Vanderberg's Petition, 28 id. 243, 254
(whether a two-thirds majority voted ; journals
consulted) ; 1886, Weyand v. Stover, 35 id. 545,
553, 11 Pac. 366 (whether a due reading, etc.,
occurred ; journals consulted) ; 1889, State w.
Robertson, 41 id. 200', 204, 21 Pac. 382 (dates
of origin and passage, etc. ; journals consulted);
1898, Re Taylor, 60 id. 87, 55 Pac. 340 (where
certain parts of an act were duly passed ; jour-
nals consulted); 1902, State v. Andrews, 64 id.
474, 67 Pac. 870 (conformity of a title ; journals
consulted ; Ellis, .J., for the majority, doubts
the propriety of this rule); Kentucky: 1869,
Com. V. Jackson, 5 Bush 680, 684 (question not
decided) ; 1878, Auditor v. Haycraft, 14 id. 284,
288 (same) ; 1892, Norman v. Kentucky Board,
93 Ky. 537, 546, 563, 20 S. W. 901 (same ; but
Piyor, J., explicitly declared in favor of holding
the enrolment conclusive); Louisiana: 1871,
Louisiana State Lottei-y Co. v. Richoux, 23 La.
An. 743 (whether a bill was properly read, etc. ;
journals not to be consultc<l); Maine: 1889,
Weeks v. Smith, 81 Me. 538, 18 Atl. 325
(whether a bill was approved ; enrolled act con-
clusive) ; Maryland: 1858, Fouke u. Douglass,
13 Sid. 392, 412 (the engrossed and the printed
statute corresponded ; the legislative joui-nals
held not to override this) ; 1870, Mayor v. Har-
wood, 32 id. 471, 477 (the final engrossment as
constitutionally attested, held conclusive as to
the .statute's contents) ; 1874, Berry v. E. Co.,
41 id. 446, 463 (terms of act; journals consulted);
1874, Lengti. Annapolis, 42 id. 203, 220 (substi-
tution of false bill in second House; journals
consulted) ; 1877, Strauss v. Heiss, 48 id. 292,
295 (general doctrine approved ; governor's tes-
timony to time of signing two bills, received) ;
Michigan: 1844, Green v. Graves, 1 Doug. 351,
372 (whether a two-thirds majority had been
given ; journals consulted, but present question
not discussed) ; 1865, People v. Mahaney, 13
Mich. 481, 491 (whether the vote included
members not lawfully seated ; journals may be
consulted in general to detenuine validity of
statutes) ; 1867, People v, Onondaga, 16 id. 254,
257 (error in engrossment of title ; journals con-
sulted) ; 1882, Pack v. Barton, 47 id. 620, 11
N. "W. 367 (whether a bill was introduced in
time ; journals consulted) ; 1884, Attorney-Gen-
eral V. Joy, 55 id. 94, 100, 20 N. W. 806 (w^hether
a two-thirds vote had been given ; journals
consulted) ; 1886, Gallaghan v. Chipman, 59 id.
610, 617, 26 N. W. 806 (whether a bill was in-
troduced in time ; journals consulted) ; 1887,
Attorney-General v. Rice, 64 id. 385, 31 N. W.
203 (whether a bill's title expressed its object ;
journals consulted) ; 1888, Hart v. McElroy, 72
id. 446, 40 N. W. 760 (whether the proper
readings were had ; journals consulted) ; 1889,
Sackridcr v. Supervisors!, 79 id. 59, 66, 44 N.
W. 165 (like A. G. v. Eice) ; 1890, Stow v.
Grand Rapids, ib. 596, 697, 44 N. W. 1047
(whether an error had occurred in engross-
ment ; journals consulted) ; Rode v. Phelps, 80
id. 698, 608, 45 N. W. 493 (whether errors
occurred iii engrossment ; journals consulted) ;
Caldwell ». Ward, 83 id. 13, 46 N. AV.
1024 (whether a bill was introduced in time",
journals consulted) ; 1891, People v. Burch,
84 id. 408, 411, 47 N. W. 765 (whether
1647
§ 1350
RULES OF PREFERENCE.
[Chap. XLII
by the operatiou of a particular law, be allowed to show to the Court, if it is not advised
of the fact, that the same was passed in violation of his constitutional rights, or that it
has been placed among the archives of government by fraud or mistake, and never had a
legal existence ? Is there no way of ascertaining whether the approval of the executive
bill had been properly voted on ; journals con-
sulted) ; Minnesota: 1858, Board v. Heenan, 2
Minn. 330, 338 (whether a bill had been prop-
erly read; journals consulted); 1877, State v.
Hastings, 24 id. 78, 81 (whether a bill was
properlv read ; journals consulted) ; 1884, Burt
V. R. Co., 31 id. 472, 477, 18 N. W. 285, 289
(whether a two-thirds vote had been given ;
jouruals may be offered in evidence) ; 1888,
State V. Peterson, 38 id. 143, 145, 36 N. W. 443
(whether a bill was properly read ; journals con-
sulted) ; 1891, Lincoln v. Hangan, 45 id. 451,
48 N. W. 196 (whether a proper vote was had ;
journals consulted) ; Mississippi: 1856, Green
V. Weller, 32 Miss. 650, 684, 702, 735, 33 id.
735 (whether an act had been voted by the re-
quired number ; journals not to overthrow the
eui'oUed act ; careful opinion ; Smith, C. J., and
Fisher, .1., diss.) ; 1866, Swann u. Buck, 40 id.
23S, 295 (whether a bill was properly read ; en-
rolled act conclusive) ; 1874, Brady v. West, 50
id. 68, 77 (errors in enrolment ; journals con-
sulted ; "qualifying" Green o. Weller); 1886,
Ex parte Wren, 63 id. 512, 528 (whether amend-
ments were omitted ; enrolled act held conclu-
sive in a weighty opinion by Campbell, J.,
quoted supra; Brady v. West repudiated) ;
Missouri: 1821, Douglas u. Bank, 1 Mo. 24
(whether an act was duly passed ; journals con-
sulted, as "better and higher testimony");
1836, Stite ». McBride, 4 id. 303 (whether a
proper majority had voted ; journals consulted
to overthrow the enrolled document) ; 1856,
Pacific R. Co. h. Governor, 23 id. 353, 362 (pro-
priety of proceedings after a veto ; journals not
to control ; opinion careful and detailed) ; 1875,
Bradley v. West, 60 id. 33, 44 (doctrine implied
that journals might be consulted) ; 1879, State
V. Mead, 71 id. 266, 270 (whether a bill was
properly read and signed ; journals consulted
under new Constitution) ; 1893, State v. Field,
119 id. 593, 606, 24 S. W. 752 (whether a bill's
title was contained during passage ; journals
examined) ; Nebraska: 1876, Hull v. Miller, 4
Nebr. 503, 505 (whether an act was properly
voted upon ; journals consulted) ; 1879, Cot-
trell V. State, 9 id. 125, 128, 1 N. W. 1008
(whether a bill was properly signed and voted
on ; journals consulted) ; 1880, State v. Liedtke,
ib. 462, 4 N. W. 68 (cpiestion not decided) ;
1885, Ballon v. Black, 17 id. 389, 393, 23 N. W.
3 (whether a bill was properly entitled and
amended ; journals consulted) ; 1885, State v.
McLelland, 18 id. 236, 25 N". W. 77 (whether
an error occurred in enrolment ; journals con-
sulted) ; 1886, State o. Robinson, 20 id. 96,
29 N. W. 246 (similar) ; 1888, State v. Van
Dnyn, 24 id. 586, 590, 39 N. W. 612 (whether
certain parts of an enrolled act were properly
voted upon ; journals consulted) ; 1893, State v.
Moore, 37 id. 13, 15, 55 N. W. 299 (whether an
error of terms was made in the engrossment ■;
journals consulted) ; 1894, Ames v. K. Co., 64
1648
Fed. 165, 168 (journals may be consulted under
Nebraska law) ; 1898, Be Granger, 56 Nebr.
260, 76 N. W. 588 (tenus of an act ; journals con-
sulted) ; 1898, Webster v. Hajitings, ib. 669, 77
N. W. 127 (journals may be consulted ; Irvine,
C, and Sullivan, J., diss.) ; 1899, State v. Ab-
bott, 59 id. 106, 80 N. W. 499 (whether certain
appropriations were made in an act ; jouiuals
may be referred to, but nothing else, e. g. orig-
inal bill, etc.) ; 1900, Webster v. Hastings, 59
id. 563, 81 N. W. 510 (change of title after
passage ; journals consulted) ; 1900, State v.
Frank, 60 id. 327, 83 N. W. 74 (same rnle re-
iterated ; but held not to allow the silence of a
mutilated journal to overthrow the enrolment ;
the facts and opinion well illustrate the dangers
and uncertainties to which the rule leads ; that
in these days the journals could be kept in the
manner shown in this case is a disgrace to the
State and a warning to others) ; 1901, Simpson
V. Union Stockyards Co., C. C., 110 Fed. 799
(enrolled bill is controlled by the journals ; here
said of a Nebraska act) ; 1901, State v. Frank,
61 Nebr. 679, 85 N. W. 956 (approving the
original decision, supra) ; Nevada: 1875, State
V. Swift, 10 Nev. 176, 179 (whether a bill as en-
rolled was properly passed ; journals not to be
consulted ; full and careful opinion by Beatty,
J. ) ; 1883, State v. Glenn, 18 id. 34, 38, 1 Pac.
186 (preceding case affirmed) ; 1887, State u.
Tufly, 19 id. 391, 12 Pac. 835 (whether a pro-
posed constitutional amendment was entered
upon the journals; journals consulted); 1895,
State V. Nye, 23 id. 99, 101, 42 Pac. 866 (same
as State v. Glenn); 1899, State v. Beck, 25 id.
68, 56 Pac. 1008 (whether a bill was properly
read ; journals not consulted) ; A^eie Hampshire :
1858, Opinion of the Justices, 35 N. H. 579 (the
journals are the authentic records, to he resorted
to for determining whether the two Houses con-
curred in assent to the law) ; 1872, Opinion of
the Justices, 52 id. 622 (same) ; New Jersey:
1866, Pangborn v. Young, 32 N. J. L. 29
(whether amendments made in the Senate were
contained in the bill as approved ; the filed and
authenticated document held conclusive, and
the journals not to he considered as evidence to
the contrary ; quoted supra) ; Nev) York: 1839,
Thomas v. Dakin, 22 Wend. 9, 112 (whether a
law had been passed by a two-thirds vote ; con-
clusiveness of the printed statute or of the cer-
tified original, expressly left undecided) ; 1840,
Warner v. Beera, 23 Wend. 103, 125, 137, 168,
190 (whether a law had been passed by a two-
thirds vote ; Walworth, C, left the question un-
decided whether the printed statute's correctness
could be examined on demurrer to a plea ; Ver-
planck. Sen., was for examining both the certified
original and the journals ; Bradish, Pres. Sen.,
was for taking the certified original as conclu-
sive, under R. S., tit. 4, ch. 7, § 11, making it
"conclusive evidence"; the question was ap-
parently decided by the Court of Errors without
§1 1345-1354] ENEOLLED STATUTE vs. JOURNALS.
§ 1350
was forged, or whether officers have acted contrary to their constitutional obligations ?
It is no sufficient answer that we must rely on the integrity of the executive or other offi-
cers, and that the record of facts is conclusive evidence of the truth of such acts. Our
notions of free institutions revolt at the thought of placing so much power in the hands
passing upon the point) ; 184], Hunt v. Van
Alstyne, 25 id. 605, 611 (same question, left un-
decided) ; 1841, People v. Purdy, 2 Hill 31
(same question ; left undecided ; but Brouson,
J., on the principle that the unconstitutional
exercise of legislative power must be prevented,
thought that at least the certified original could
be examined) ; s. 0. appealed, s, v. Purdy v.
People, 4 id. 384, 390, 419 (Walworth, C,
thought the certificate not conclusive ; the
Court voted against his opinion, without express-
ing itself on the particular point) ; 1845, De Bow
V. People, 1 Den. 9, 14 (same question ; " it
seems that the journals . . . may be con-
sulted"); 1846, Commercial Bank v. Sparrow,
2 id. 97, 101 (the printed statute-book not
conclusive ; the other question not raised) ;
1853, People v. Supervisors, 8 N. Y. 317, 327
(whether the yeas and nays had been entered on
the journal ; semble, the journal not to be con-
sulted, but it was) ; 1865, People v. Devhn, 33
id. 269, 279, 286 (whether abill had been passed
by a three-fitths vote ; semble, that the journals
could not be consulted); 1873, People v. Com'rs,
54 id. 276, 279 (whether a statute had been en-
acted by a two-thirds vote ; " the original act
is conclusive") ; 1883, People v. Petrea, 92 id.
128, 137, 139 (whether a statute was based on a
bill reported by commissioners to revise the
statutes; thejournals may lie resorted to); 1891,
Rum.'iey w. R. Co., 130 id. 88, 92, 28 K E. 763
(certificate of enrolment being defective, the
journals were consulted to sustain the act ; but
whether a complete certificate would be conclu-
sive is left undecided ; tlie Court citing both
People V. Purdy and People v. Devlin, and im-
properly leaving the matter unsettled) ; Laws
1892, c. 682, § 40 (presiding officer's certifi-
cate is to be "conclusive evidence" that a law
was passed by the proper number of votes) ;
North Carolina: 1870, Brodnax v. Groom, 64
N. C. 244, ■Hi, seTnble (enrolled statute, conclu-
sive) ; 1895, Carr v. Coke, 116 id. 223, 233, 22
S. E. 16 (whether a bill was duly read ; enrolled
copy held conclusive, in a careful opinion) ; 1896,
Union Bank v. Commissioners, 119 id. 214, 221,
25 S. E. 966 (whether the yeas and nays were en-
tered on the journals as required by the Consti-
tution ; journals consulted to overthrow the act ;
distinguishing Carr v. Coke) ; 1897, Commis-
sioners V. Snuggs, 121 id. 394, 398, 28 S. E. 539
(same ruling) ; 1899, Board v. Color, 37 C. C. A.
484, 96 Fed. 284 (journal considered, under a
constitutional requirement in North Carolina
that for certain legislation the yeas and nays
must be entered on the journal) ; 1901, Commis-
sioners V. DeEo.sset, 129 N. C. 275, 40 S. E. 43
(Carr v. Coke approved ; journals here consulted
as to the several readings of a bill) ; 1903, Wil-
son V. Markley, — id. — , 45 S. E. 1023 (jour-
nals not to lie consulted ; except for ascertaining
the due passage of certain private acts coming
under the provisions of Const. Art. 2, § 14) ;
1649
North Dakota: 1901, Power v. Kitohing, 10
N. D. 254, 86 N. W. 737 (whether a bill was
amended; journals not consulted); 1901, Pick-
ton V. Fargo, ib. 469, 88 N. W. 90 (journals of
a municipal council may be consulted) ; Ohio :
1854, Miller i;. State, 3 Oh. St. 475, 479 (ques-,
tion raised but not decided) ; 1870, Fordyce u.
Godman, 20 id. 1, 16 (whether a two-thirds vote
had been given ; journals consulted) ; 1886,
State V. Smith, 44 id. 348, 363, 7 N. E. 447, 12
N. E. 829 (whether a bill was duly voted on ;
journals examined) ; 1887, State v. Kiesewetter,
45 id. 254, 256, 12 N. E. 807 (whether a bill was
properly signed ; journals consulted) ; Oregon :
1883, Mumford v. Sewall, 11 Or. 67, 72, 4 Pac.
585 (whether a bill was properly read ; journals
and original bill consulted) ; 1887, State v.
Wright, 14 id. 365, 372, 12 Pac. 708 (error in
an amendment ; journals consulted) ; 1892,
Currie v. Southern P. Co., 21 id. 566, 570, 28
Pac. 884 (whether a bill received a sufficient
vote ; journals consulted ; Beau, J., hesitating ;
Lord, J., reserving his opinion) ; 1892, State v.
Rogers, 22 id. 348, 364, 30 Pac. 74 (same rul-
ing) ;■ 1897, McKennon v. Cotner, 30 id. 588,
49 Pac. 956 (journals may be consulted ; an
amendment appearing on the journal, it was
presumed that it liad been reconsidered and
defeated, and thus the enrolment could be sus-
tained) ; Pennsylvania: 1853, Speer «. P. R.
Co., 22 Pa. 376 (the certificate is "conclusive"
as to enrolment ; main question not considered);
1856, Southwark Bank v. Com., 26 id. 446, 450
(the Legislature rejjealed a section of a pending
bill; thejournals consulted to identify the bill,
and the section, though part of the bill as signed,
treated as void) ; 1877, Kilgore v. Magee, 85 id.
401, 412 (whether a bill was properly entitled,
read, etc. ; enrolment conclusive) ; 1884, Com.
V. Martin, 107 id. 185, 189, 204 (whether an act
was properly entitled ; enrolment conclusive) ;
South Carolina: 1870, State v. Piatt, 2 S. C.
150 (whether the statute required "Court to be
held at Barnwell or at Blackville; the enrolled
act read originally "Barnwell," which was al-
tered to read "Blackville" ; the journals con-
sulted; the chief argument relied on is the
necessity of preventing the violation of consti-
tutional safeguards ; Moses, C. J., diss.) ; 1879,
Bond Debt Cases, 12 id. 200, 226, 233, 289
(whether a two- thirds vote had been given ;
journals consulted) ; State v. Hagood, 13 id. 46,.
54, 61, 70 (whether a bill was properly read ;
journals consulted ; Mclver, J., diss, in part, in
a forcible opinion) ; South Dakota : 1894, Somers
■V. State, 5 S. D. 321, 28 N. "W. 804 (two stat-
utes, approved the same day, having inconsistent
provision ; journal examined to see which was
intended as repealing the other) ; 1901, Warre-
gangu. Brown Co., 14 id. 357, 85 N. W. 602
(journals not to be consulted to impeach the en-
rolled act) ; 1901, State v. Bacon, 14 id. 394, 85
N. W. 605 (same); Tennessee: 1879, State u. Mc-
§ 1350
EULES OF PREFERENCE.
[Chap. XLII
of one man, with no guard upon it bat his own integrity ; and our Constitution has wisely
so distributed the powers of government as to make one a check upon the other, thereby pre-
venting one branch from strengthening itself at the expense of the co-ordinate branches,
and of the public. Such evidence should be of the most satisfactory character ; and
there is less to be apprehended from the subornation of witnesses, subject to the tests
which the law imposes, than from the exercise of so great a power without restraint or
accountability."
The answers to these arguments are represented in the following passages,
dealing in various ways with one or more of the forms of argument against
the conclusiveness of the enrolment :
Connell, 3 Lea 332, 341 ( whether a bill was prop-
erly read ; journals consulted, but the question
not raised) ; 1880, Gaines v. Horrigaii, 4 id. 608,
611 (whether an amendment was properlj' passed ;
journals consulted ; but question reserved in
part) ; Williams v. State, 6 id. 549, 553 (whether
a proper majority voted ; journals may be con-
sulted) ; 1887, Hayes v. Stale (unreported oral
opinion ; cited in next two cases as in accord
with them) ; 1888, Brewer v. Hnntingdon, 86
Term. 733, 9 S. W. 166 (whether a bill was re-
jected ; journals consulted) ; 1888, State v. Al-
good, 87 id. 163, 167, 10 S. W. 310 (whether a bill
had passed after amendment ; journals con-
sulted) ; 1892, Nelson v. Haywood Co., 91 id.
596, 599, 20 S. W. 1 (whether a bill was duly
passed, signsd, etc. ; journals consulted) ; Texas:
1875, Blessing v. Galveston, 42 Tex. 641, 656
(question discussed, but not decided) ; 1880,
Houston & T. R. Co. v. Odiim, 53 id. 343, 351
(whether an act was certified after adjournment ;
journals consulted to determine date of passage);
1886, Hnnt v. State, 22 Cr. App. 396, 400
(whether a bill was properlv signed ; journals con-
sulted) ; 1890, Ex parte Tipton, 28 id. 438, 442
(error in enrolment ; journals not to be consulted,
where no constitutional provision requires a mat-
ter to appear therein) ; 1890, Re Duncan, 139
U. S. 449, seinble (the validity of a Texas statute,
under the rule of Usener v. State, infra, held not
to be a Federal question) ; 1891, Ewing v. Dan-
can, 81 Tex. 230, 233, 16 S. W. 1000 (whether
a two-thirds vote had been given ; journals con-
sulted ; none of the above cases cited) ; 1892,
Williams v. Taylor, 83 id. 667, 19 S. W. 156
(whether a bill had been duly reported ; jour-
nals not consulted ; good opinion by Gaines, J. ;
this case practically affirms Usener v. State,
8 Cr. App. 177, and expressly affirms Mx parte
Tipton, 28 id. 438, and distiuguishes Ewing v.
Duncan, supra, on the ground that the date of
taking etfect was in issue and did not furnish the
data for determining whether a sufficient major-
ity for giving immediate effect had voted) ; United
States: 1857, Thompson's Case, 9 Op. Attorney-
General, 1, 3, per Black (in a forceful opinion
denying to executive officers the right of such
consultation ; "we must take the acts of Con-
gress as we find them, without addition or
diminution ") ; 1867, Gardner v. Barney, 6 Wall.
499 (the date of the President's signature to a
bill not being an essential part of the record,
the legislative journals may be looked to with
other evidence; and whenever "the existence
of a statute " is in question, the Court may look
to " auy source of information " that is helpful);
1891, Field v. Clark, 143 U. S. 649, 670, 12 Snp.
495 (whether a clause was omitted from the
engrossed act; journals not to be consulted;
whether the failure to observe the constitu-
tional rule requiring entry of yeas and nays on
the journal could be thus inquired into, not de-
cided) ; for Federal rulings interpreting the law
of individual States, see sapra, under California,
Illinois, Nebra-ska, and North Carolina; Utah:
1896, Ritchie v. Richards, 14 Utah, 345, 47 Pac.
670 (whether the yeas and nays were taken, the
Constitution requiring the fact to be entered
on the journals on demand of five members ;
held, that the enrolled bill, <iuly signed, ap-
proved, and deposited, was the final record of
the statute, and the journals could not be con-
sulted ; Batch and Miner, JJ., diss. ) ; Verirumt:
1844, Be Welmau, 20 Vt. 653, 656 (time when an
act took efl^ect ; enrolment conclusive ; though
"in some instances " journals may be consulted);
St. 1894, § 31 (the engi-ossed copy kept by Sec-
retary of State ' ' shall be taken to be " the act) ;
Virginia: 1884, Wise «. Bigger, 79 Va. 269, 271,
281 (whether a two-thirds vote was given ; jour-
nals consulted); Washington: 1893, State v.
Jones, 6 Wash. 452, 34 Pac. 201(whether the con-
stitutional requirements had been fulfilled ; jour-
nals not to be consulted ; opinion by Hoyt, J.,
perhaps the best on the subject) ; West Virginia :
1871, Osburni). Staley, 5 W. Va. 85, 89 (whether
the required number of votes was given ; jour-
nals consulted) ; Wisconsin : 1866, Watertown
V. Cady, 20 Wis. 501 (whether a vote was prop-
erly talcen ; question not decided) ; 1878, Bound
«. *R. Co., 45 id. 543, 557 (whether an act
was properly passed ; journals consulted) ; 1885,
Meracle v. Down, 64 id. 323, 327, 25 N. W. 412
(same) ; 1891, McDonald v. State, 80 id. 407,
411, 50 N. W. 185 (whether a bill was passed as
constitutionally required ; journals may be con-
.sulted) ; Wyoming : 1872, Brown v. Nash, 1
Wyo. T. 85, 93 (whether a proper vote was
given ; journals may be consulted) ; Union
Pacific R. Co. V. Carr, ib. 96, 103 (same) ; 1892,
White V. Hinton, 3 Wyo. 753, 756, 30 Pac. 953
(whether a bill was passed and approved after
expiration of the session ; journals not con-
sulted).
1650
§§ 1345-1354] ~ ENEOLLED STATUTE vs. JOURNALS. § 1C50
1841, Nelson, C. J., in Hunt v. Van Alstyne, 25 Wend. 605, 610 : "There are only two
modes of contradicting it [the certified enrolment]: 1. By the journals of the two
Houses, and 2. by parol testimony. The presiding officer had all the benefit of the first ;
the ayes and noes are taken, and the journal made up, under his supervision and control.
His means of ascertaining and determining the fact, when he declares the law to be
passed, exceed those of any other tribunal that might be called upon to inquire into it.
Besides, the hurry and looseness with which the journals are copied, and the little impor-
tance attached to the printed copies, necessarily impairs confidence in their correctness.
They are most uncertain data upon which to found a judicial determination of the rights
of property, much more of gTeat constitutional questions. As to the second mode of con-
tradicting the certificate, the evidence would if possible be still more fallible and unsatis-
factory. Indeed, we can scarcely imagine a case where from its nature the proof would
be so subject to the doubtful and conflicting recollection of witnesses. Nothing short of
absolute necessity could justify a resort to it. It would hardly deserve much weight in
contradicting the journal itself, — much less the certificate of the presiding officer affixed
to the law."
1866, Beasley, C. J., in Panghormr. Young, 32 N. J. L. 29, 34: "[l]It is impossible
for the mind not to incline to the opinion that the framers of the Constitution, in exact-
ing the keeping of these journals, did not design to create records which were to be para-
mount to all other evidence with regard to the enactment and contents of laws. ... If
intended for any purpose whatever in any course of judicial investigation, can any one
conceive that these registers would have been left in the condition in which by the Con-
stitution we find them? In the nature of things they must be constructed out of loose
and hasty memoranda, made in the pressure of business and amid the distractions of a
numerous assembly. There is required not a single guarantee to their accuracy or to
their truth ; no one need vouch for them, and it is not enjoined that they should be either
approved, copied, or recorded. ... [2] These are the sanctions [the signatures of the two
presiding officers and of the Governor] which the Legislature has provided for the
authentication of its own acts, both to the public and to the judicial tribunals ; and the
question is therefore presented whether such authentication must not be deemed conclu-
sive, or in other words, whether the Legislature does not possess the right of declaring
what shall be the supreme evidence of the authenticity of its own statutes. This ques-
tion, in my opinion, must be answered in the affirmative. How can it be otherwise?
The body that passes a law must of necessity promulgate it in some form. ... It is the
power which passes the law which can best determine what the law is which itself has
created. The Legislature in this case has certified to this Court, by the hands of its two
principal officers, that the act now before us is the identical statute which it approved,
and, in my opinion, it is not competent for this Court to institute an inquiry into the
truth of the fact thus solemnly attested. ... [3] I think the rule thus adopted accords
with public policy. Indeed, in my estimation, few things would be more mischievous
than the introduction of the opposite rule. . . . The rule contended for is that the Court
should look at the journals of the Legislature to ascertain whether the copy of the act
attested and filed with the Secretary of State conforms in its contents with the state-
ments of such journals. This proposition means, if it has any legal value whatever,
that, in the event of a material discrepancy between the journal and the enrolled copy,
the former is to be taken as the standard of veracity and the act is to be rejected. This
is the test which is to be applied not only to the statutes now before the Court, but to all
statutes ; not only to laws which have been recently passed, but to laws the most ancient.
To my mind, nothing can be more certain than that the acceptance of this doctrine by
the Court would unsettle the entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . . Can any one deny
that if the laws of the State are to be tested by a comparison with these journals, so im-
perfect, so unauthenticated, the stability of all written law will be shaken to its very
foundations ? . . . We are to remember the danger, under the prevalence of such a doc-
1651
§ 1350 KULES OF PEEFERENCE. [Chap. XLII
trine, to be apprehended from the intentional corruption of evidences of this character.
It is scarcely too much to say that the legal existence of almost every legislative act
would be at the mercy of all persons having access to these journals. ... [4] The prin-
cipal argument in favor of this judicial appeal from the enrolled law to the legislative
journal . . . was that the existence of this power was necessary to keep the Legislature
from overstepping the bounds of the Constitution. The course of reasoning ui-ged was
that if the Court cannot look at the facts and examine the legislative actiou, that depart-
ment of government can at will set at defiance in the enactment of statutes the restraints
of the organic law. This argument, however specious, is not solid. The power thus
claimed for the Judiciary would be entirely inefficacious as a controlling force over any
intentional exorbitance of the law-making branch of the government. If we may be per-
mitted, for the purpose of illustration, to suppose the Legislature to design the enact-
ment of a law in violation of the principles of the Constitution, a judicial authority to
inspect the journals of that body would interpose not the slightest barrier against such
transgression ; for it is obvious that there could not be the least difficulty in withholding
from such journals every fact evincive of such transgression. A journal can be no check
on the actions of those who keep it, when a violation of duty is intentional. . . .
[5] Besides, if the journal is to be consulted, on the ground of the necessity of judicial
intervention, how is it that the inquiry is to stop at that point ? In law, upon ordinary
rules, it is plain that a journal is not a record, and is therefore open to be either ex-
plained or contradicted by parol proof. And yet, is it not evident that the Court could
not, upon the plainest grounds, enter upon such an investigation ? In the case now in
hand, if an oSer should be made to prove by the testimony of every member of the Legis-
lature that the journals are false, and that as a matter of fact the enrolled law did re-
ceive in its present form the sanction of both houses, no person versed in jurisprudence,
it is presumed, would maintain that such evidence would be competent. The Court can-
not try issues of fact ; nor, with any propriety, could the existence of statutes be made
dependent on the result of such investigations. With regard to matters of fact, no judi-
cial unity of opinion could be expected ; and the consequence would necessarily be that
the conclusion of different Courts as to the legal existence of laws from the same proofs
would often be variant, and the same tribunal which to-day declared a statute void might
to-morrow be compelled, under the effect of additional evidence, to pronounce in its favor.
The notion that Courts could listen upon this subject to parol proof is totally inadmis-
sible ; and it therefore unavoidably results that if the journal is to be taken into con-
sideration at all, its effect is uncontrollable ; neither its frauds can be exposed nor its errors
corrected. And if this be so, and the journal is to limit the inquii-y of the judicial power,
how obvious the inadequacy, if not futility, of such inquiry ! . . . [6] In the frame of
our State government the recipients and organs of this threefold power are the Legis-
lature, the Executive, and the Judiciary, and they are coordinate, in all things equal and
independent. Each within its sphere is the trusted agent of the public. \Vith what
propriety, then, is it claimed that the judicial branch can erect itself into the custodian
of the good faith of the legislative department ? It is to be borne in mind that the
point now touched does not relate to the capacity to pronounce a law, which is admitted
to have been enacted, void by reason of its unconstitutionality. That is clearly a func-
tion of Judicature. But the proposition is, whether, when the Legislature has certified
to a mere matter of fact, relating to its own conduct and within its own cognizance, the
Courts of the State are at liberty to inquire into or dispute the veracity of that certifi-
cate. ... In my opinion, the power to certify to the public the laws itself has enacted is
one of the trusts of the Constitution to the Legislature of the State."
1869, Fi-azer, J., in Evans v. Browne, 30 Ind. 514, 524: "It is important, certainly,
that the question whether the enactment of a statute is valid shall be made capable of
ready and correct solution, and that it shall not depend upon doubtful or conflicting
evidence. When all are bound to know the law, they should have the means of knowl-
edge, and not merely reasons for conjecture, uncertainty, and doubt. ... It is argued
1652
§§ 1345-1354] ENROLLED STATUTE vs. JOURNALS. § 1350
that there is an appeal to these [legislative journals], from the official attestation of the
presiding officers and to the archives in the executive department. Would the jour-
nals be as satisfactory to the mind ? Such journals, it is notorious, are and must be
made in haste, iu the confusion of business, and are often inaccurate. Their reading is
frequently omitted, so that these errors "go without correction. They do not show the
nature of the bill as introduced, but merely the amendments which have been proposed
to it. They are not required to contain anything by which it could be even identified
and its passage traced. ... By what reason or analogy can we sustain ourselves in
holding that the journal should override the signatures upon the enrolled act ? Surely
not because it is in the nature of things more likely to speak the whole truth upon the
question in hand. . . . But it is argued that if the authenticated roll is conclusive upon
the Courts, then less than a quorum of each House may by the aid of corrupt presiding
officers impose laws upon the State in defiance of the inhibition of the Constitution. It
must be admitted that the consequence stated would be possible. Public authority and
political power must of necessity be confided to officers, who being human may violate the
trusts reposed in them. This perhaps cannot be avoided absolutely. But it applies also
to all human agencies. It is not fit that the Judiciary should claim for itself a purity
beyond all others ; nor has it been able at all times with truth to say that its high places
have not been disgraced. The f ramers of our government have not constituted it with
faculties to supervise coordinate departments and correct or prevent abuses of their
authority. It cannot authenticate a statute ; that power does not belong to it ; nor can it
keep a legislative journal. It ascertains the statute law by looking at its authentication,
and then its function is merely to expound and administer it. . . . If it may [look be-
yond the enrolled act], then for the same reason it may go beyond the journal, when that
is impeached ; and so the validity of legislation may be made to depend upon the mem-
ory of witnesses, and no man can in fact know the law which he is bound to obey. Such
consequences would be a large price to pay for immunity from the possible abuse of
authority by the high officers who are, as we think, charged with the duty of certifying to
the public the fact that a statute has been enacted by competent Houses. Human gov-
ernments must repose confidence in officers. It may be abused, and there may be no
remedy. — Nor is there any great force in the argument which seems to be regarded as of
weight by some American Courts, that some important provisions of the Constitution
would be a dead letter if inquiry may not be made by the Courts beyond the rolls. This
argument overlooks the fact that legislators are sworn to support the Constitution, or
else it assumes that they will wilfully violate that oath. It is neither modest nor just
for judges thus to impeach the integrity of another department of government, and to
claim that the Judiciary only will be faithful to its obligations."
1896, Zane, C. J., in Ritchie v. Richards, 14 Utah 345, 47 Pac. 670: "Objections
may be urged to either means of proof. Minutes and memoranda may not always be
correctly transcribed upon the journals. And the minutes and memoranda are some-
times made amid circumstances calculated to confuse and distract the attention, and to
divert it from the business in hand. Bills may sometimes be enrolled, and signed by
presiding officers, and approved by the governor, that have never been duly passed.
Either source is subject to possible error. Courts and lawyers will differ as to which is
the surest and best soui'ce of information. However, when statutes are published people
shape their actions and conduct with respect to them ; they incur obligations, acquire
rights, and discharge duties in reliance upon them. If such a law, in any instance, should
turn out to be void, because some requirement of the Constitution had not been observed in
its passage, great injustice would be likely to follow. We must regard the enrolled bill,
duly signed, approved, and deposited in the public archives, as a more accessible and
convenient source of authentication, and, if referred to, less liable to overturn law, and
quite as reliable as the journals of the two Houses. The people ought not to be required
to ransack such journals to ascertain whether laws have been duly passed, and they can-
not be expected to do so. Nor should lawyers, before advising clients, be required to
1653
§ 1350 EULES OF PEEFERENCE. [Chap. XLII
search such journals. Statutoi-y enactments should not depend nor stand upon such a
sandy and uncertain foundation, if a better one can be found. Laws evidenced by the
signatures of the pi-esiding officers, and the approval and signature of the governor, and
the filiny in the public archives, ought not to be overthrown by memoranda on the jour-
nals which the Constitution does not require to be made.''
1893, Irvine, C, in Webster v. Hastings, 56 Xebr. 669, 77 N. W. 127 : " We are in
this case for the first time confronted with its [i. e. the opposite rule's] mischievous re-
sults. If the fact of the due enactment of a statute is to be tried on any available evi-
dence, certain results follow, of such character as to bid us pause and re-examine our
premises. Being an issue of fact, it is to be tried by the triors of fact, — in many cases,
a jury. Being an issue of fact, its determination in one court or in one case will be no
bar to its retrial in other courts, or in the same court in an action where the parties are
different. One jury or one judge may, on conflicting evidence, find that a, statute was
passed, and is therefore the law of the State. Another may find that it was not passed,
and is therefore inoperative. The law will be one thing for one man, and another thing
for another man, depending upon the diligence of his counsel, and the temper, or per-
haps prejudice, of a jnry. A city will be governed by one law when A sues it, and by a
different law when B sues it. An issue of bonds will be valid after their maturity only
when in a suit thereon a jury shall say that the Legislature passed the law authorizing
the issue, and then they will be valid only as to the specific bonds in action. I need not
amplify the illustrations. Such a state of affairs produces a confusion in our statute law
suggesting anarchy." '
The arguments against conclusiveness seem to be reducible to three :
first, the argument of legal theory, i. e. that the enrolment is not a record;
second, that of practical policy, i. e. that there is danger of error and fraud ;
and third, that of constitutional necessity, i. e. the impossibility of securing
in any other way the enforcement of constitutional restrictions on legislative
action. — The first argument, on which stress is seldom laid, is met by the
principle that there may be conclusive preferences for testimony, irrespective
of records {ante, § 1348). — The second argument cannot for a moment
stand (as the above passages make plain) against the considerations that
there is equal or greater danger of error and fraud in the journals, and that
the use of the latter plunges the community into the uncertainty of re-
peated litigation on a question never capable of final settlement ; the first
of the considerations already outlined (ante, § 1348 (2)) applies here in all
its force. — The third argument, that of constitutional necessity, is the one
most frequently pressed, and the one really responsible for almost all of the
decisions against conclusiveness. But it seems, after all, to be but a spec-
tral scruple, created by a false logic :
(1) In the first place, note that it is impossible of consistent application.
If, as it is urged, the Judiciary are bound to enforce the constitutional re-
quirements of these readings, a two-thirds vote, and the like, and if therefore
an act must be declared no law which in fact was not read three times or
^ The opinions by Hoyt, J., in State v. Jones, would alone render superfluous all the other de-
6 Wash. 452, 34 Pac. 201, and Beasley, C. J., in liverances on the subject. It is not quoted here,
Pangborn o. Yoinig, 32 N. J. L. 29, are easily because it does not lend itself to partial quota-
the best on the subject both for comprehensive- tion ; but it ought to be read in its entirety by
ness and keenness of analysis and for clearness every one desiring to make an argument on the
of exposition. The latter opinion is the one best subject,
known ; but the former, though rarely cited,
1654
§§ 1345-1354] ENEOLLED STATUTE vs. JOURNALS. § 1350
voted upon by two thirds, this duty is a duty to determine according to the
actual facts of the readings and the votes. Now the journals may not rep-
resent the actual facts. That duty cannot allow us to stop with the jour-
nals, if it can be shown beyond doubt that the facts were otherwise than
therein represented. The duty to uphold a law which in fact was constitu-
tionally voted upon is quite as strong as the duty to repudiate an act uncon-
stitutionally voted upon. The Court will be going as far wrong in repudiating
an act based on proper votes falsified in the journal as it will be in upholding
an act based on improper votes falsified in the enrolment. This supposed
duty, in short, is to see that the constitutional facts did exist ; and it cannot
stop short with the journals. Yet, singularly enough, it is unanimously con-
ceded that an examination into the facts as provable by the testimony of
members present is not allowable.'' If to support this it be said that such
an inquiry would be too uncertain and impracticable, then it is answered
that this concedes the supposed constitutional duty not to be inexorable, after
all ; for if the duty to get at the facts is a real and inevitable one, it must be
a duty to get at them at any cost ; and if it is merely a duty that is limited
by policy and practical convenience, then the argument changes into the sec-
ond one above, namely, how far it is feasible to push the inquiry with regard
to policy and practical convenience ; and from this point of view there can
be but one answer. (2) In the second place, the fact that the scruple of
constitutional duty is treated thus inconsistently and pushed only up to a
certain point suggests that it perhaps is based on some fallacious assumption
whose defect is exposed only by carrying it to its logical consequences. Such
indeed seems to be tlie case. It rests on the fallacious notion that every con-
stitutional provision is per se capable of being enforced through the Judiciary
and must be safeguarded by the Judiciary because it can be in no other way.
Yet there is certainly a large field of constitutional provision which does not
come before the Judiciary for enforcement, and may remain unenforced with-
out any possibility of judicial remedy. It is not necessary to invoke in illus-
tration such provisions as a clause requiring the Governor to appoint a certain
officer, or the Legislature to pass a law for a certain purpose ; here the Consti-
tution may remain unexecuted by the failure of Governor or Legislature to act,
and yet the Judiciary cannot safeguard and enforce the constitutional duty.^
A clearer illustration may be had by imagining the Constitution to require
the Executive to appoint an officer or to call out the militia whenever to the
best of his belief a certain state of facts exists ; suppose he appoints or calls
out when in truth he has no such belief ; can the Judiciary attempt to enforce
the Constitution by inquiring into his belief ? ^ Or suppose the Constitution
to enjoin on the legislators to pass a law upon a certain subject whenever in
their belief certain conditions exist ; can the Judiciary declare the law void
' Cases cited supra, note 3.
' These cases suggest the disputed question as to the Judiciary's use of the mandamus, and
are therefore open to dispute.
• Post, § 2369.
1655
§ 1350 RULES OF PEEFERENCE. [Chap. XLII
by inquiring and ascertaining that the Legislature, or its majority, did not
have such a belief ? ^^ Or suppose the Constitution commands the Judiciary
to decide a case only after consulting a soothsayer, and in a given case the
Judiciary do not consult one ; what is to be done ? These instances illus-
trate a general situation in which the judicial function of applying and
enforcing the Constitution ceases to operate. That situation exists where
the Constitution enjoins duties which affect the motives and judgment of a
particular independent department of government, — Legislature, Executive,
and Judiciary. Such duties are simply beyond enforcement by any other
department if the one charged fails to perform them. The Constitution may
provide that no legislator shall take a bribe, but an act would not be treated
as void because the majority had been bribed.^^ So far as the Constitution
attempts to lay injunctions in matters leading up to and motivating the.
action of a department, injunctions must be left to the conscience of that
department to obey or disobey. Now the act of the Legislature as a whole
is for this purpose of the same nature as the vote of a single legislator. The
Constitution may expressly enjoin each legislator not to vote until he has
carefully thought over the matter of legislation ; so, too, it may expressly
enjoin the whole Legislature not to act finally until it has three times heard
the proposition read aloud. It is for the Legislature alone, in the latter case
as well as in the former, to take notice of this injunction ; and it is no
more the function of the Judiciary in the one case than in the other to try
to keep the Legislature to its duty :
1877, Per Curiam, in Kilgore v. Magee, 85 Pa. 401, 412 : " So far as the duty and the
consciences of the members of the Legislature are involved, the law [of the Constitution]
is mandatory ; they are bound by their oaths to obey the constitutional mode of proceed-
ing ; ... [it is] a question of regularity in the conduct of those who have the power to
enact a law and to declare it to be such. . . . But when a law has been passed and ap-
proved and certified in due form, it is no part of the judiciary to go behind the law as
duly certified to inquire into the observance of form in its passage."
1886, Campbell, J., in Ex parte Wren, 63 Miss. 512, 533 : " It is the admitted province
of the Courts to judge and declare if an act of the Legislature violates the Constitution.
But this duty of the Courts begins with ihe completed act of the Legislature; it does not
antedate it. . . . From necessity the judicial department must judge of the conformity
of the legislative acts to the. Constitution ; but what are legislative acts must be deter-
mined by what are authenticated as such according to the Constitution. That instrument
contains many provisions as to the passage of bills which are admitted to be addressed to
'•'' 1887, Day Land & C. Co. v. State, 68 Tex. in judgment upon a charge that the Legislature
S26, 4 S. W. 865 (a legislative preamble declar- have been faiHilpss to their oaths, to the Consti-
iiig an emergency to exist, justifying the suspen- tution, and to the public interests? . . . We
sion of the rule requiring three several readings, cannot hesitate a moment on this question ") ;
as permitted by the Constitution, is conclusive; 1891, U. S. v. Des Moines, K. & R. Co., 142
"the Legislature ... is made the sole judge U. S. 510, .544 ("The knowledge and good faitli
whether facts exist to authorize the immediate of a Legislature are not open to question ; . . .
passage of a hill "). the hill [liere] alleges that its [the act's] passage
" 1810, Fletcher !>. Peck, 6 Or. 87, 123, 130, was induced by tlie [defendant] Navigation Co.,
144; 1884, Eakin, J., in Webster!). Little Rock, by false representations and throats of suits;
44 Aik. 536, 548 ("the rule everywhere rocog- but that amounts to nothing"); 1893, U. S. v.
nized ") ; 1849, Jones v. Jones, 12 Pa. 350, 357 ; Old Settlers, 148 id. 427, 466. Comi'are Story,
1859, Lowrie, C. J., in Sunburj' & E. R. Co. v. Commentary on the Constitution, § 1090 (whose
Cooper, 33 Pa. 278, 282 ("May the Judiciary sit arguments apply to the present problem).
1656
§§ 1345-1354] ENROLLED STATUTE vs. JOURNALS. § 1351
legislators exclusively, and for the observance of ■which there is confessedly no remedy
which Courts can apply. . . . [They are] to be enforced by the oath required of members,
and not admitted to the Courts."
The truth is that many have been carried away with the righteous desire
to check at any cost the misdoings of Legislatures. They have set such store
by the Judiciary for this purpose that they have almost made them a second
and higher Legislature. But they aim in the wrong direction. Instead of
trusting a faithful Judiciary to check an evil Legislature, they should turn to
reform the Legislature. That it is no better, in the average, is the fault of
the people, by whom it is sent. The sensible solution is not to patch and
mend casual errors by asking the Judiciary to violate legal principle and
to do impossibilities with the Constitution ; but to represent ourselves with
competent, careful, and honest legislators, the work of whose hands on the
statute-roll may come to reflect credit upon the name of popular government.
§ 1351. Same : (3) Certificate of Election. The mode of dealing with,
election returns is everywhere regulated by statutes more or less voluminous,
and frequently subjected to amendment; and it would be impossible to state
here the condition of the law of evidence in each jurisdiction without a
consideration of all the provisions of the general election law. It will be
enough to note broadly the considerations recognized as affecting the eviden-
tial doctrine of conclusive testimony.
(a) The certificate of the returning officer or commission that a certain
person has been elected is generally held not to be conclusive ; and the Court
will therefore examine, with the aid of other sources (chiefly, the ballots
themselves) into the fact in issue, of which the certificate is the provisionally
preferred testimony, i. e. into the total number and tenor of votes by qualified
electors :
1765, Wilmot, J., in B. v. Vice-Chancellor, 3 Burr. 1647, 1649, 1661 (an order to com-
pel the University proctors to declare who had the majority of votes) : " I think it [their
'declaration '] immaterial; for the question depends not upon that, but upon the real
majority of legal votes. Their declaration cannot alter or affect that. . . . Even if such
their declaration had been contrary to the truth of the fair and legal right, the Court
must have taken up the matter upon the true and real merits."
1835, Rogers, J., in Com. v. County Commissioners, 5 Rawle 75, 79 : "It is a startling
doctrine that in case of a notorious fraud or a palpable violation of the law a constable
could palm an officer on the public by the force of his return, — that, by merely omitting
to state the place where the election was held, he could control the election, when it was
admitted that it was not in fact held at the place appointed by the act. If this be the
law, it is useless to go through the mockery of an election ; the constable may return
whom he pleases, always taking care that his return is correct upon its face. It would be
better to give the appointment to the constable at once, without the useless ceremony of
an election."
1S.>5, Whilon, C. J., in Attorney- Qeneral v. Barstow, 4 Wis. 567, 792: "The question
is whether the canvass or the election establishes the right of a person to an office. It
seems clear that it cannot be the former, because by our Constitution and laws it is
expressly provided that the election by the qualified voters shall determine the question.
. . . But it has been repeatedly contended in the course of this proceeding that, although
the election by the electors determines the right to the office, yet the decision of the
1657
§ 1351 RULES OF PREFERENCE. [Chap. XLII
persons appointed to canvass the votes cast at the election settles finally and completely
the question as to the persons elected, and that therefore no Court can have jurisdiction
to inquire into the matter. It will be seen that this view of the question, wliile it
recognizes tlie principle that the election is the foundation of the right to the office, as-
sumes that the canvassers have authority to decide the matter finally and conclusively.
. . . [As to this, we say that] Courts which have the power to entertain proceedings by
quo K-arranto have authority to determine who has this right, without being compelled to
limit the proof of the right to the acts of those who by law are appointed to canvass the
votes and make statements of them ; " Smith, J. : ^ " It is said the Legislature has erected
the board of State canvassers into a judicial tribunal, — supreme, final, and unquestion-
able. This is indeed strange doctrine. . . . Can this board of canvassers be considered
a judicial tribunal when they have no power to issue a subpoena for nor to compel the
attendance of witnesses, to summon parties before them, to grant a trial by jury ? . . .
I£ the decision of one board can oust the supreme judicial tribunal of the State of juris-
diction and paralyze its functions, so can another. The clerk of a board of supervisors
and two justices of the peace of his own selection become the Court of first and last
resort, in which the most sacred rights of freemen are adjudged and determined without
appeal ; and that, too, without a chance of being heard, without process, without a jury,
without the privilege of appearing before the power which may pronounce upon their
rights." 2
1863, Davies, J., in People v. Pease, 27 N. Y. 45, 5.5 : " What is it that confers title to
the office and the legal right to the reception of its emoluments ? It surely is the fact
that the greatest number of qualified voters have so declared their wishes at an election
held pursuant to law. It is not the canvass or estimate or certificate which determines
the right. These are only evidences of the right ; but the truth may be inquired into
and the very right ascertained."
1865, Welch, J., in Howard v. Shields, 16 Oh. St. 184, 191: "The question to be de-
cided in an election contest is, Which party received the greatest number of legal votes ?
If the Court can, as it necessarily must, go behind the abstract, why should it not also go
belnnd the poll-books and tally-sheets ? ... To hold that, when an election has been in
fact held, and the majority of the legal voters have in fact and according to the prescribed
forms of law cast their ballots for the candidates of their choice, the constitutional rights
of the voters and of their candidates can be defeated by a mere misprision or omission
of the judges or clerks, would be manifestly unjust and contrary to the plain intent and
spirit of our election laws. Such a reSult should be permitted only in cases of necessity
arising from the want of proper means to ascertain with reliable certainty the facts of
the case."
Nevertheless, when the chief source of evidence, the ballots themselves,
cannot be trusted because they have been tampered with, or when by
law they have been destroyed, the condition already pointed out (ante,
§ 1348 (2) ) may exist, namely, the official certificate may become more
trustworthy than any verdict that could be reached upon the scanty or
suspicious evidence available. In such a situation the certificate, or some
subordinate certificate such as the tally-list, may well be taken as conclusive.
But this result has seldom been reached by the Courts except under express
direction of a statute. ^ Most Courts, however, while not treating the certifi-
1 At pp. 781, 786. _ 148 Ind. 208, 47 N. E. 466 (tally-sheets and
* The most forceful exposition of the whole certificates to be conclusive as to unprotested
subject is to be found in the masterly arguments ballots, which are not to be looked at or testified
of Mr. (afterwards C. J. ) Ryan, at pp. 674, 634, about ; the law having provided expressly for
and Ml-. Orton, at p. 703, in the above case. their destruction, R. S. 1894, § 6248).
' See the following : 1897, Weakley v. Wolf,
1658
§§ 1345-1354] CERTIFICATE OF ELECTION. § 1351
cate as conclusive, do lay down, upon the same considerations, a rule for
measuring the relative value of the evidence, i. e. they refuse to decide ac-
cording to the evidence of the ballots if the ballots have been so tampered
with as to be untrustworthy; the chief difference of opinion here occurs
merely on the question whether the ballots will be taken as reliable until
the tampering is shown, or whether they will be taken as unreliable until
the fact of tampering is negatived.*
(&) The certificate includes an assertion that the person named was voted
for by the reqidred number of qualified electors. Conceding that the certificate
is not conclusive testimony to the net fact that the person named was elected,
may it not at least be taken to be conclusive that the votes were cast by
qualified electors ? The argument to this effect has occasionally been rested
on the idea that the election officers were given a quasi-judicial function in
determining to accept the vote of given electors. But the stronger argu-
ment, advanced in the more weighty opinions, is that the case presented
involves the conditions already noted (ante, § 1348(2)) namely, a dearth of
evidence for the proper investigation of the facts at a judicial trial. These
remarks are set forth in the following passages :
1863, Denio, C. J., diss., in People v. Pease, 27 N. Y. 45, 77 : " The real question is who,
according to the arrangements which the Constitution and laws have provided for deter-
mining that question, received the greatest number of votes, and was elected to the office.
If the law has left it as an open question, to be determined like ordinary matters upon
which private rights depend, or, which is much the same thing, if the certificate of the
canvassers is made only prima facie evidence of the state of the poll, as is argued, the
right can only be definitely settled by the verdict of a jury. But the nature of the sub-
ject would lead us to conclude, a priori, that such could not be the system organized by
* The following are illustrations: Ariz.: Lawrence Co. v. Schmaulhansen, 123 id. 321,
1898, Oakes v. Finlay, — Ariz. — , 53 Pac. 332, 14 N. E. 255 ; 1897, Dooley v. Van Hohen-
173 (ballots not controlling where not clearly stein, 170 id. 630, 49 N. E. 193 (neither ballot-
shown to have been preserved unaltered) ; 1887, count in Court nor election judges' return is
Dixon V. Orr, 49 Ark. 238, 241, 4 S. W. 774 conclusive ; but the formei' is to be prefened
(poll-books and tally-sheets are preferred evi- where not under suspicion of taniperinp) ; 1900,
dence ; if unavailable, other evidence by ob- Jeter v. Headley, 186 id. 34, 57 N. E. 784
servers is receivable) ; 1887, Wheat i). Smith, (ballots control, if not tampered witli) ; Kan. :
50 id. 266, 282, 7 S. W. 161 (original and 1877, Hudson «. Solomon, 19 Kans. 177 (Brewer,
duplicate returns being lost, the election officers' J.: "The necessities of the case make it [the
testimony of their contents was received) ; 1890, certificate] prima facie evidence, but, unless
Jones u. Glidewell, 53 id. 161, 176, 13 S. "W. expressly so declared by statute, it is never
723 (contents of stolen returns shown) ; 1891, conclusive") ; Ky. : 1900, Taylor v. Beckham,
Merritt v. Hinton, 55 id. 12, 16, 17 S. W. 270 108 Ky. 278, 56 S. W. 177 (refusing to review
(contents of lost or destroyed returns shown); the action of the Legislature, which was here
Cal .- 1865, People v. Holden, 28 Cal. 123, 131 the election board) ; 1902, Edwards v. Logan,
(the statute providing for ballot-preservation, — id. — , 70 S. W. 852 (ballots control, if pre-
the tally-list of the election-officers may be over- served intact) ; Mass.: 1897, Attorney-General
thrown by the results of an inspection of the v. Drohan, 169 Mass. 534, 48 N. E. 279 ; Nebr. .'
ballots themselves ; ballots presumed not to 1892, Albert v. Twohig, 35 Kebr. 563, 568, 53
have been tampered with); 1884, Ooglan v. N. W. 582 (ballots control the officers' returns,
Beard, 65 id. 58, 63, 2 Pac. 737 (the election if properly preserved) ; y. V. : 1825, People v.
officers' certificate may be overturned by the Van Slyck, 4 Cow. 297, 323 (Woodworth, J. ;
ballots, if they are in the same condition as "The trial is had upon the right of the party
ivlien delivered by the election-judges) ; III. . holding office ; the certificate is not conclusive ;
1872, Knox Co. u. Davis, 63 111. 405, 418 (poll- the Court will decide upon an examination of
books and returns having been rejected for all the facts") ; N.D.: 1899, Howser w. Pepper,
fraud, other evidence of the votes cast was 8 N. D. 484, 79 N. W. 1018 ; Wis. : 1899,
received) ; 1880, Kingery v. Berry, 94 id. 515 State v. Luy, 103 Wis. 524, 79 N. W. 776.
(ballots to control if not tampered with) ; 1887,
VOL. II. — 42 1659
§ 1351 EULES OF PREFEREiSrCE. [Chap. XLU
the Legislature. ... I am of opinion that the policy of the legal provisions which have
been enacted upon this subject is to secure record evidence of the result of the election,
which, save in a few exceptional cases to be pi-esently mentioned, is conclasive upon the
public and upon all individuals, and against the verity of which no allegation can be
admitted. I do not proceed upon one of the grounds relied upon by the plaintiffs' coun-
sel, namely, that the inspectors of elections are made judges of the qualifications of per-
sons claiming to be elected and who may offer to vote. . . . But while I disclaim any
reliance upon the alleged judicial character of the inspectors, I am still of opinion that,
so far as the value of the vote is concerned, the voter is made a competent aud effectual
witness respecting his qualifications to vote. Should he swear falsely, he is liable to in-
dictment and punishment for perjury; and the act directs the preservation of so mucli of
the evidence of his having voted as shall be necessary to establish the fact upon the trial
of an indictment. . . . The Legislature considered that if one claiming to be a voter
came forward, openly and publicly, before the inspectors and the public, who would
be likely to be his neighbors and acquaintances, and offered to vote and no one ques-
tioned his right, or swore positively to his qualifications if challenged, it would be quite
safe to assume that he possessed the requisite qualifications ; for the inspectors and the
whole community would not be likely to conspire in the interest of illegal voting. The
law, therefore, provided that in such a case the vote should be received without other
evidence. As to those whose right should be challenged, the legislative will was that the
voter should be questioned on oath by the inspectors; that if doubts as to his right
should be entertained, these doubts should be stated to him and the law explained,
and that then it should be left to his conscience whether to affirm upon his oath, under
the peril of temporal punishment for perjury, and of such religious and moral responsi-
bility as might affect his mind, or to abstain.from voting. . . . No doubt the determina-
tion of the right is left to depend essentially upon the voter's oath, and that there is a
possibility that a false or mistaken oath may sometimes be taken. But is the hazard of a
perversion of the franchise, under these arrangements, so great as to require us to hold,
against the plain language of the statute, that a right is implied to reexamine the ques-
tion before a j ury, in case the right of the prevailing candidate shall afterwards be called
in question ? I think not."
18G8, Campbell, J., in People v. Cicolt, 16 Mich. 283, 294: "The first inquiry, there-
fore, is whether an election can be defeated as to any candidate by showing him to have
received illegal votes. . . . And where the illegality consists in the casting of votes by
persons unqualified, unless it is shown for whom they voted, it cannot be allowed to
change the result. The question of the power of Courts to inquire into the action of
the authorities in receiving or rejecting votes is, therefore, very closely connected with
the power of inquiring what persons were voted for by those whose qualifications are
denied. . . . The reasons why such an inquiry should be prevented do not necessarily rest
on any assumption that the inspectors act throughout judicially, although under our regis-
tration system that objection has a force which would not otherwise be so obvious.
Neither do they rest in any degree upon the assumption that one rule or another is
most likely to induce perjury, as very hastily intimated in People v. Ferguson, 8 Cow. 102
[quoted joos!]. But a very strong ground for them is found in the fact that our whole
ballot system is based upon the idea that unless inviolable secrecy is preserved concerning
every voter's action, there can be no safety against those personal or political influences
which destroy individual freedom of choice. . . . Under our statutes there is no general
provision which makes the canvass for local officers conclusive in all cases, and, therefore,
the rule is recognized that the election usually depends upon the ballots, and not upon
the returns. These being written and certain, the result of a recount involves no element
of difficulty or ambiguity beyond the risk of mistakes in counting or footing up numbers,
which may in some respects be more likely in examining the ballots of a whole county,
than in telling off those of a town or ward, but which involves no great time or serious
disadvantage. But the introduction of parol evidence concerning single voters in a coa-
1060
§§ 1345-1354] CERTIFICATE OF ELECTION. § 1351
siderable district can rarely reach all cases of illegality effectually, and must so multiply
the issues as to seriously complicate the inquiry. ... No system can be devised which
will prevent all illegal voting. But it cannot be said our legislation is not as likely to
shut it out as any means open to judicial control would be. The registration law forbids
the board from recording any name of which they have well-founded doubts, and it is
practically impossible for any stranger to succeed in defrauding the law, with the pub-
licity given to all the proceedings. Where a person applies for registration ou election
day, the inspectors act upon discretion, and are not compelled to admit a vote unless
satisfied of its legality. The challengers on both sides, as we all know, canvass every
district beforehand, and expect to challenge every one who is not known. While the
inspectors cannot reject a registered voter who takes the proper oath, yet the means of
previous inquiry, and the imminent risk of detection and punishment, have deduced the
dangers of illegal voting within very nai-row limits. ... I am, therefore, of opinion that
the election must be determined solely by the ballots received according to law ; and that
where the election proceedings are not irregular, and the law has been complied with in
correcting the lists and preserving the ballots, the means of determining the result must
be-in the main arithmetical."
The arguments against the conclusiveness of the certificate as to the voter's
qualifications are set forth in the following passages:
1827, Savage, C. J., in People v. Ferguson, 8 Cow. 102 (repudiating the ruling of the
trial judge that a voter's testimony to the tenor of an ambiguous ballot was inadmissible
because " such a principle would be of the most dangerous tendency, as it would lead to
subornation of perjury") ; " The elector wh"o put in the ballot is~ certainly higher evi-
dence as [to] the person designated by it than the opinion of any other. Such elector
is competent, unless he is to be excluded from principles of public policy. ... It is true,
if the voter should swear falsely, you probably cannot convict him of perjury. But are
we to reject every witness who comes to swear under such circumstances that, if he swears
false, he cannot be convicted of perjury? I know of no such rule of evidence."
1863, Selden, J., in People v. Pease, 27 N. Y. 45, 65: " The first ground upon which
this position is attempted to be sustained is, that inspectors of elections are judicial offi-
cers, whose decisions in receiving the ballots are final and conclusive. . . . Inspectors
are required to decide some questions, but they are such as ministerial officers are often
required to decide. A county clerk, before recording a deed, must decide whether it is
legally proved or acknowledged, but his decision is not conclusive; a sheriff must decide
whether the person whom he arrests is the person described in his process, but his deci-
sion is not judicial, and he acts at his peril. . . . The inspectors may be required to
decide important questions, and their decisions, for the purpose for which they are made,
that of determining whether the votes shall be received or rejected, are final; but I do
not think they are conclusive with regard to the legality of the votes when the question
is presented in an action properly instituted to try the right of pei'sons elected to office,
or defeated, by the result of the decisions. They cannot call witnesses — they can receive
no oral testimony excepting the oath of the voter, and no documentary evidence, unless
the challenge is based on an alleged conviction of crime. . . . Their decision leaves the
question open for more deliberate adjudication whether the voter had or had not a right
to vote. Great interests often depend upon these questions. They lie at the foundation
of the government, and it is of the utmost importance that the means of detecting and
exposing fraud and imposition, and correcting error, should be such as to secure the con-
fidence of the people in the ultimate result of elections. . . . The greatest number of
lawful votes alone gives the right to an elective office in this State; and as no adjudica-
tion can be had to determine the lawfulness of votes before they are received, that ques-
tion must be open to examination by Courts afterwards, or there is no power anywhere
in the government to discriminate between those which are lawful and those which are
1661
§ 1351 RULES OE. PREFEEENCE. [Chap. XLII
unlawful. Indeed, if the rule contended for by the plaintiffs be adopted, the distinction
between lawful and unlawful votes ceases to exist when they reach the ballot-box."
1868, Christiancy, J., in People v. Cicott, 16 Mich. 283, 311 : "I cannot go to the extent
of holding that no inquiry is admissible in any case into the qualification of voters, or
the nature of the votes given. Such a rule, I admit, would be easy of application, and
as a general rule might not be productive of a great amount of injustice, while the mul-
titude of distinct questions of fact in reference to the great number of voters whose
qualification may be contested, is liable to lead to some embarrassment, and sometimes
to protracted trials, without a more satisfactory result than would have been attained
under a rule which should exclude all such inquiries. Still I cannot avoid the conclusion
that, in theory and spirit, our Constitution and our statutes recognize as valid those votes
only which are given by electors who possess the constitutional qualifications ; that they
recognize as valid such elections only as are effected by the votes of a majority of such
qualified electors. And though the election boards of inspectors and canvassers, acting
only ministerially, are bound in their decisions by the number of votes deposited in
accordance with the forms of law regulating their action, it is quite evident that illegal
votes may have been admitted by the perjury or other fault of the voters ; and that the
majority to which the inspectors have been constrained to certify and the canvassers to
allow, has been thus wi-ongfuUy and illegally secured. And I have not been able to satisfy
myself that, in such a case, these boards acting thus ministerially, and often compelled to
admit votes which they know to be illegal, were intended to constitute tribunals of last
resort for the determination of the rights of parties claiming an election. If this were
so, and there were no legal redress, I think there would be much reason to apprehend
that elections would degenerate into mere contests of fraud. The person having the
greatest number of the votes of legally qualified electors, it seems to me, has a constitu-
tional right to the office, and if no inquiry can be had into the qualification of any voter,
here is a constitutional right depending upon a mode of trial unknown to the Constitution,
and, as I am strongly inclined to think, opposed to its provisions. I doubt the competency
of the Legislature, should they attempt it, which I think they have not, to make the deci-
sion of inspectors or canvassers final under our Constitution. The extent of the inquiry
into the qualification of voters, and how they have voted, may be limited or qualified by
other provisions of the Constitution. . . . He may, if he sees fit, testify in court to the
vote which he has given. . . . And whenever the person who has voted admits that he
was not constitutionally qualified, or the fact clearly appears, so that it no longer remains
a question for the jury, he can claim no protection from this privilege." '
§ 1352. Sundry Official Certificates (Certificates of Jurat, of Acknowledg-
ment of Deed, of Record of Deed, of Ship Registry, of Protest of Commercial
Paper; Legislative Recitals in Statutes). The Suggestion has been made in
many other instances that an official certificate should be taken as conclusive
testimony to the fact certified ; but this suggestion has been almost in-
variably repudiated by the Courts. Such cases, however, involve the neces-
sity of distinguishing the rules of the substantive law bearing on the issue (as
already noted in § 1346), and it would be impossible here to deal justly with
the various questions. A few instances only may be noted, to illustrate the
nature of the problem.
(1) A recital of fact in a statute, though it may in some conditions be ad-
missible as an official statement {post, § 166::!), is not conclusive testimony.
The Legislature's recitals are commonly intended merely as explanations
' See the authorities cited supra, note 4 ; cated with other rules of law that it is impracti-
the local statutes are so lengthy and so compli- cable to collect the authorities here.
1662
§§ 1345-1354] SUNDEY OFFICIAL CEETIFICATES.
§ 1352
of motives and purposes, and not as determinations of controverted fact.
They could not, without gross injustice, be made evidentially conclusive, and
this is generally conceded.^ As a contract or an estoppel, or otherwise, the
recital may be binding ; ^ but that would not be due to a rule of evidence.
(2) A jurat or certificate of the taking of an oath is ordinarily not con-
clusive testimony and may be shown erroneous.^ But in a given case the
law may prescribe, as a condition precedent to certain legal consequences,
that certain documentary forms of oath be observed ; and then, if those forms
are not observed, it is ,of no effect that the oath or other act was done with-
out those forms ; here all will depend on the significance of the statutory
requirement*
(3) For the same reason, the conclusiveness of a deed's certificate of
acknowled'jment will depend upon the view taken of the policy of the Legis-
lature in requiring certain conditions for the validity of a transfer under the
registration system, and also on the judicial or merely ex parte character
{ante, § 1347) of the proceeding in which the acknowledgment is taken.^
(4) So also the theory of the substantive law {ante., §§ 1225, 1239) must
disclose whether under the system of land-transfer registration the recordei^s
registration of a deed, is conclusive as to its contents,® or as to the execution
1 Cal. C. C. P. 1872, § 1903 (recitals in a
public statute are conclusive only " for the pur-
pose of carrying it into effect " ; in a private
statute, only " between parties who claim under
its provisions ") ; 1849, Birdsong v. Brooks, 7 Ga.
88, 92 (statutory recital not conclusive ; quoted
poH, § 1353) ; 1883, Koehlevu. Hill, 60 la. 543,
664; 14 N. "W. 738, 15 N. W. 609 (preamble of
a statute by one Assembly reciting the terms of
an act of a former one, not conclusive).
2 1902, Fraser v. James, 65 S. C. 78, 43 S. E.
292 (under a constitutional provision permitting
the Legislature to establish new counties upon
certain conditions, the existence of those con-
ditions as recited in the statute establishing a
new county cannot be disputed, apart from
fraud or deceit by the Legislature). Consult
Endlich, Interpretationof Statutes (1888), §375.
3 1700, Thurston v. Slatford, 1 Salk. 284 (a
clerk's record as to an official not taking the oath ;
' ' if there be a mis-entry, it might be supplied
and coiTected by other evidence, for he should
not be concluded by the mistake or negligence
of the officer ") ; 1808, R. v. Emden, 9 East 437
(jurat of an affidavit, not conclusive as to the
place of the swearing) ; 1903, Nicholson v.
Snyder, — Md. — , 55 Atl. 484 (notary's cer-
tificate of oath to an answer in bankruptcy, not
conclusive) ; 1899, Baumer v. French, 8 N. D.
319, 79 N. W. 340 (jurat of an affidavit, not
conclusive).
* 1898, Ryder v. Alton, 175 111. 94, 51 N. E.
821 (assessment commissioner's report sworn to
before a notary ; commissioner not allowed to
deny having sworn) ; 1823, Hale v. Gushing, 2
Greenl. 218, 220 (oath of an assistant assessor ;
if not recorded, provably orally ; the statutory
requirement being directory only) ; 1831, Tripp
V. Garey, 7 id. 266, semble (certificate of a mili-
tia commander as to the clerk's appointment
is by statute the exclusive evidence); 1860,
•Hathaway v. Addison, 48 Me. 440, 443 (oath of
collector and assessor ; same as Hale v. Cu&h-
ing) ; 1876, Farnsworth Co. v. Rand, 65 id. 19,
21 (oath of a collector before a town clerk ; if
never recorded, provable orally) ; 1812, Bassett v.
Marshall, 9 Mass. 312 (a justice of the peace
made no record of an oath to a militia clerk ; the
parol fact was allowed ; " since the magistrate
made no record, . . . the evidence admitted was
the best that could be required ") : 1826, Sher-
man V. Needham, 4 Pick. 66 (certificate of oath,
of appointment of militia clerk prescribed by
statute; "this is not like the case where the
regular evidence has been lost and inferior evi-
dence is admitted ; the Legislature seem to have
prescribed the mode of taking the oath " ; and
so the prescribed certificate alone would suiiice) ;
1827, Com. 0. Sherman, 5 id. 239 (same).
" See the following cases : 1898, Merrill v.
Sypert, 65 Ark. 51, 44 S. W. 462 ; 1867, Hill
V. Bacon, 43 111. 477 ; 1899, Tuschinski v. R.
Co., 176 id. 420, 52 N. E. 920 ; 1902, Parlin &
Orendorff Co. v. Hutson, 198 id. 389, 65 N. E.
93 ; 1899, Ayer v. Ahlborn, 174 Mass. 292, 54
N. E. 555. Compare § 1347, ante, and the
cases there cited for a married woman's acknowl-
edgment. Certificates of this kind may by
statute be judicial acts. Compare Jones on
Mortgages, § 538.
* See the following illustrations : 1856, Har-
vey V. Thorpe, 28 Ala. 250, 263 ; 1885, Gaston
V. Merriam, 33 Minn. 271, 276, 22 N. W. 614 ;
1829, Hastings v. B. H. T. Co., 9 Pick. 80, 83 ;
1836, Ames v. Phelps, 18 id. 314.
1663
§ 1352
EULES OF PEEFERENCE.
[Chap. XLII
of au entry of satisfaction of a mortgage/ or as to the time of entry for regis-
tration,* or as to other facts material to the recorded title.^
(5) So also a notary's certificate of protest, regarded from the point of view
of evidence, is not conclusive. ^^ Yet it is possible for the law of negotiable
paper to make a certificate in a certain form sufficient or indispensable for
fixing liability, — just as it may make the mere mailing of a notice, irrespec-
tive of its receipt, sufficient for the same purpose.
These and numerous other instances illustrate that when an official certi-
ficate, entry, record, or the like is forbidden to be disputed, it is usually not
a genuine instance of conclusive testimony, but rather a consequence of some
rule of substantive l&wP- The only plain instances of a rule of conclusive
testimony, recognized on common-law principles, seem to be those of the
magistrate's report of testimony, the enrolment of a statute, and the return
of an election officer {ante, §§ 1349-1351). It remains now to notice certain
statutory rules that have been attempted.
§ 1353. Constitutionality of Statutes making Testimony Conclusive ; General
Principles. It has been suggested {ante, § 1348) that a Court takes an ex-
treme step, amounting to a temporary and partial renunciation of its vital
functions, when it foregoes its own investigation and accepts some person's
testimony as conclusive of a fact to be judicially determined. That a Court
' See the following illustrations : 1854,
Fleming v. Parry, 24 Pa. 47, 51 (an entry of
satisfaction of mortgage on the registry ; that it
was not intended as a satisfaction of the bond,
allowed to be shown ; the entry not being a
record " to which that maxim applies, the proper
application of which is to judicial records ") ;
1871, Lancaster v. Smith, 67 id. 427, 433 (deed-
recorder's attestation of a discharge of mortgage,
not conclusive ; the act being that of the party
and the recorder being merely the attester of the
party's act).
' See the following illustrations : 1817, R.
V. Keed, 3 Price 495, 506, 511 ; 1834, Tracy v.
Jenks, 15 Pick. 465, 468 (register's certificate of
time of receiving and recording deed, conclusive
as between creditors) ; 1841, Musser,!). Hyde,
2 W. & S. 314 (conclusive as to time, in favor of
a purchaser for value on the faith of the entry) ;
1803, Taylor v. Holcomh, 2 Tyl. Vt. 344 '(town
clerk's endorsement of time of record of deed,
conclusive ; but here allowed to be interpreted
by his usage in recording) ; 1846, Morton u.
Edwin, 19 Vt. 77, 80 (justice's certificate of time
of record of execution, not conclusive) ; 1850,
Chandler v. Spear, 22 id. 388, 401 (clerk's cer-
tificate of time of record of tax-sale bill, not
conclusive) ; 1861, Bartlett v. Boyd, 34 id. 256,
261 (town-clerk's statutory certificate of date of
mortgage-record and filing, not conclusive) ;
1868, Johnson v. Burden, 40 id. 567, 571 (town-
clerk's certificate of date of filing fbr record, not
conclusive) ; 1845, Horsley v. Garth, 2 Gratt.
471 (not conclusive as to date of filing and re-
cording).
9 1827, Hubbard v. Dewey, 2 Ark. 312, 315
(clerk's certificate of fact of record of deed or
execution, not conclusive) ; 1827, Myers v.
Brownell, ib. 407, 409 (clerk's certificate of
filing of deed with directions to delay record-
ing, not conclusive) ; 1843, Carpenter v. Saw-
yer, 17 Vt. 121, 123 (clerk's certificate of source
of record of notices, not conclusive). On the
foregoing points, compare the cases cited ante,
§§ 1225, 1239.
A ship's register is ordinarily not conclusive
as to title ; 1830, Colson v. Bonzer, 6 Greenl.
474 (action for supplies furnished). Compare
the I'ases cited aide, § 1240, post, § 1647.
" 1875, Boit V. McKenzie, 54 Ala. 112 ;
1883, Martin v. Brown, 75 id. -442, 447 ; 1871,
Rogers v. Stevenson, 16 Minn. 68 ; 1843, Wood
V. Trust Co., 7 How. Miss. 609, 630 ; 1895,
Cook 0. Bank, 72 Miss. 982, 18 So. 481 ; 1821,
Stewart v. Allison, 6 S. & R. 324.
11 1877, People v. Hagar, 52 Cal. 171, 187
(certified copy of petition on file ; whether cer-
tificate of correctness of copy can be attacked,
not decided) ; 1854, Peterson v. Taylor, 15 Ga.
483 (certificate by a clerk, as to papers filed ;
not conclusive); 1887, Mussel ii. Tama Co., 73
la. 101, 34 N. W. 762 (township trustees' cer-
tificate of pauper supplies furnished, conclusive
under statute, except for fraud) ; 1903, O'Con-
nell V. Dow, 182 Mass. 541, 66 N. E. 788
(magistrate's certificate of taking of deposition,
not conclusive). Compare the additional in-
stances cited and distinguished, a7ite,-§§ 1346,
1347, post, § 2453.
Whether the officer himself is forbidden to
impeach his own certificate, though it is other-
wise not conclusive, is a different question (ante,
§ 530).
1664
§§ 1345-1354] CONSTITUTIONALITY OF STATUTES. § 1353
may do this, when it believes the result to be a more likely approach to
truth than its own investigations could obtain, cannot be doubted. But in
such a case the Court acts voluntarily, and exercises its choice. Being charged
constitutionally with the exclusive function of determining facts in contro-
versy, it believes this duty to be best carried out by accepting a certain
person's statement as the most satisfactory source of reliance in reaching
that determination. But can such a course be forced upon the Judiciary by
another department of government ? Can the Legislature prescribe a rule of
conclusive evidence?
(1) On the one hand, so far as a so-called rule of conclusive evidence is
not a rule of evidence at all, but a rule of substantive law, it is clear that the
Legislature is not infringing upon the prerogative of the Judiciary. For
example, a rule that an indorser's liability can be fixed by showing a notary's
certificate of protest is not necessarily a rule making the certificate conclusive
evidence of demand and notice, but a rule of the law of negotiable instru-
ments ; because the law might be that no demand or notice at all was
necessary for fixing an indorser's liability ; to require a notary's certificate is
merely to require a formal official instrument irrespective of its truth, i. e.
something half-way between requiring actual notice and requiring no notice
at all. Again, to make a rule that as between successive grantees the
recorder's certificate of the time of filing deeds shall be conclusive, is not to
make a rule of evidence, but merely to provide in the law of land-transfer
that a deed found to be recorded as of a prior date shall take effect against a
deed found to be recorded as of a subsequent date, irrespective of the actual
time of entry and record. In such cases, and countless others, the use of the
term " conclusive evidence " cannot conceal the true nature of the rule as a
rule of substantive law making a certain right or obligation depend upon the
existence of a certain official writing irrespective of its truth.^ Such statutes
do not in any way infringe the prerogative of the Judiciary, because they
make no rule of evidence at all.
It is true that such statutes may in some other aspect be invalid because
of express constitutional limitations of legislative power as to some substantive
right. For example, in either of the above instances, if the statute was enacted
to govern notes and deeds made prior to its passage, it might violate the
constitutional prohibition against laws impairing the obligation of contracts
or taking property without due process of law. Again, a law providing that
an assessor's or collector's deed of land sold for taxes shall be conclusive
evidence that all due proceedings have been taken in the forfeiture may be
obnoxious to the prohibition against taking property without due process ;
for the law in effect provides that the property may be taken although in
fact due proceedings have not been had, — in short, while purporting to make
a rule of evidence, it really makes a rule of property-law by which certain
acts are declared unnecessary which the Constitution has declared necessary.
^ Compare § 1346, ante.
1665
g 1353 EULES OF PEEFERENCE. [Chap. XLII
In such ways, various constitutional provisions may be violated ; but the
Legislative attempt is invalid, not because it deals with a rule of evidence,
but because it deals with a constitutional rule of property.
(2) In order, then, to contrive a real test of the Legislature's power to
make a rule of conclusive evidence in the genuine sense, there must be given
a case in which fact A, said to be conclusively proved by fact B, is and
remains the real and unchangeable fact in issue, to which fact B can never
bear anything more than an evidential relation. Sucli a case, it will be seen,
can hardly occur except when fact A is constitutionally preserved as the
ultimate fact on which the right or obligation depends ; because, were there
no such constitutional sanction, all instances of such laws (except where the
statute clearly showed the contrary legislative intention) would be support-
able as virtually substituting fact B for fact A in the substantive law (as,
where a notary's certificate is substituted for actual notice), and thus the
case resolves itself into a change of a rule of substantive law, and not the
making of a rule of conclusive evidence. Such instances, then, genuinely
presenting a rule opcu only to interpretation as a rule of conclusive evidence,
must be extremely rare. One instance, however, would seem to be a statute
making an election certificate conclusive evidence of a candidate's election.
Now constitutionally the votes actually cast are the effective facts of an
election ; the certificate of an official can never be anything more than evi-
dence in relation to the fact of the votes cast. This and a few other cases
present fairly the question whether the Legislature can constitutionally
oblige the Judiciary to forego its own investigation and accept some per-
son's testimony as determining the fact of election.
To this question the answer can hardly be doubtful. It is one thing for
the Judiciary, while exercising in its own way its constitutional powers, to
choose to accept the aid of an official certificate in reaching its determination ;
but it is quite a different thing for the Judiciary to be forbidden altogether
to exercise its powers in a certain class of cases. The judicial function under
the Constitution is to apply the law ; to apply the law necessarily involves
the determination of the facts ; and to determine the facts necessarily in-
volves the investigation of evidence as a basis for that determination. To
forbid investigation is to forbid the exercise of an indestructible judicial
function. To make a rule of conclusive evidence, compulsory upon the Judi-
ciary, is to attempt an infringement upon their exclusive province.^
§ 1354. Same : Applications of the Principles (Liability in Tort, Contract,
or Crime ; Presumptions as to Taz-Collectors' Deeds, Railroad Commissioners'
Rates, Immigration Officers' Certificates, Referees' Reports, Insolvency, Gaming,
etc.). It remains to distinguish these two principles as they have been
judicially invoked for various legislative provisions.
^ 1849, Nisbet, J., in Birdsong ii. Brooks, which rights depend are true or false is an in-
7 Ga. 88, 92 (holding a statutory recital not quiry for the Courts to make, under legal forms,
conclusive ; " The Legislature has no power to It belongs to the judicial department of the
legislate the truth of facts. Whether facts upon government ").
1668
§§ 1345-1354] CONSTITUTIONALITY OF STATUTES.
§ 1354
(1) A statute which in reality deals with some rule of substantive law
cannot be obnoxious to the present principle, although it may be obnoxious
to some constitutional proviso which protects the rule of substantive law
in question. Thus, a statute which makes more stringent the rule of
responsibility for a tort, by substituting some other test than negligence, is
constitutional.! So also a statute which enlarges the rules of contract by
creating an estoppel is constitutional, — as when the terms of a bill of
lading 2 or of a policy of insurance^ are declared to be "conclusive" in
certain respects. On the other hand, a statute making a tax-collector's
deed of property " conclusive evidence " of the validity of the tax -sale is
ineffective, so far as it virtually sanctions the divestiture of property whose
owner is not in default ; as it is usually said, the essential facts which are
constitutionally required for a "taking by due process of law'' cannot be
abolished by the Legislature, although the unessential details are entirely
within the control of the Legislature to suspend or to abolish, conditionally
or absolutely.* So, too, any other statute dealing with property rights or
1 1899, Baltimore & 0. R. Co. v. Kreager, 61
Oh. 312, 56 N. E. 203 (.statute making a rail-
roaJ company absolutely liable, regardless of
negligence, for loss by " fire originating upon
the laud belonging to such railroad company,
caused by operating such railroad," held valid) ;
1896, St. Louis & S. F. R. Co. v. Mathews, 165
U. S. 1, 22, 17 Sup. 243 (statute making rail-
road companies liable absolutely, without regard
to negligence, for fire communicated by its
engines, held valid ; an instruction declaring
that the setting of the fire was only prima facie
evidence of negligence, held properly refused) ;
1897, Jones v. Brim, 165 U. S. 180, 17 Sup.
282 (statute making one who drives a herd of
cattle over a highway along a hillside liable ipso
facto for damage by rocks rolled down or banks
destroyed, held constitutional). Cordra: 1878,
Little Rock & S. F. R. Go. v. Payne, 33 Ark. 816
(conira to R. Co. v. Mathews, supra, on the
ground that negligence is an essential of liability,
and that the Legislature cannot "divest rights
by prescribing to the Courts what should be
conclu.sive evidence " ; this is an ignoring of the
history of the law of negligence).
2 Contra: 1902, Missouri K. & T. R. Co. v.
Simonson, 64 Kan. 802, 68 Pac. 653 (statute
making a bill of lading " conclusive proof of
the amount, etc. so received by such railway
company," held unconstitutional, on the ground
that such statutes precluding judicial inquiry
are an " invasion of the judicial province and a
denial of due process of law" ; Doster, C. J., and
Smith and Ellis, JJ., di.ss., on the ground that,
though statutes which "bind interested parties
by the adversary action of others " may be in-
valid, the above statute merely applied the doc-
trine of estoppel to the party's own act).
3 1896, Dagga v. Ins. Co., 136 Mo. 382,
38 S. W. 85 (statute forbidding an insurer
against fire " to deny that the property insured
thereby was worth at the time of the issuing of
the policy the full amount insured thereon,"
1667
held valid) ; 1898, Orient Ins. Co. v. Daggs, 172
U. S. 557, 565, 19 Sup. 281 (Missouri, valued-
policy statute, held valid). Legislators fre-
quently seem to believe that something is gained
by labelling such statutes as rules of evidence ;
e.g., Fla. St. 1897, c. 4554 (in actions on fire
insurance policies, "the insurer shall not be
permitted to deny that the property insured"
was of the value insured; this is entitled "an
act prescribing a rule of evidence ").
* 1872, Stoudenmire v. Brown, 48 Ala. 699,
709; 1876, Doe w. Minge, 50 id. 123; 1877,
Walker, J., in Cairo & F. R. Co. o. Parks, 32
Ark. 131, 145; 1864, Dillon, J., in Allen u.'
Armstrong, 16 la. 508, 513 (an element "so in-
dispensable that without its performance no tax
can be raised," cannot be abolished by statute) ;
1870, Cole, C. J., in McCready v. Sexton, 29 id.
356, 388 ( " This power of the Legislature extends
only to those things over which it is supreme ;
as to the essential and jurisdictional facts, so to
speak, which the Legislature cannot annul or
change, it cannot excuse the non-performance of
them, and of course cannot make the doing of any
other thing a substitute for them or conclusive
evidence of their being done. To restate the
proposition succinctly: Whatever the Legis-
lature is at liberty to authorize or not, it may
waive or estop denial ; but not so as to that
which it must require") ; 1887, Re Lnke, 40 La.
An. 142, 3 So. 479 ("The exerci.se of legislative
power has never been sanctioned so as to make
such deeds conclusive as to essential prerequi-
sites") ; 1876, Callanan v. Hurley, 93 U. S. 387,
392 (statute making tax-deed contlusive as to
certain parts of the proceeding, held valid) ;
1863, Smith v. Cleveland, 17 Wis. 556, 566
(statute declaring certain irregularities in tax-
sale proceedings not to invalidate the sale, held
valid; "the Legi.slaturc might have fixed the
time and provided for a sale without notice or
advertisement ; they may surely, by proper
legislation in advance, guard against errors and
§ 1354
RULES OF PEEFERENCE.
[Chap. XLII
personal rights is to be tested by the question whether any legislative
alteration of those rights is constitutionally forbidden, either by the general
rule against ex post facto laws ^ or by some particular provision.^ In its
control over the substantive criminal law, the Legislature seems to be un-
limited except by the provisions against ex post facto laws, against cruel
punishments, and against deprivation of life and liberty without due pro-
cess"; it may therefore, within those limits, create and define such crimes
as it thinks best.^ The unwritten constitutional principle, therefore, which
some judges have recognized, ^ that the Legislature cannot declare to be a
crime that which is in judicial opinion not so, is no more valid for criminal
law than for other departments.
(2) Turning now to statutes which genuinely deal with a rule of evidence,
it seems to be generally conceded, on the grounds already noticed {ante,
§ 1353, par. 2), that a legislative attempt to interfere with judicial powers by
forbidding investigation of facts,^ through declaring certain testimony or other
evidential data to be conclusive, is invalid.^" The genuine instances of this
cure mistakes when notice is required "). Com-
pare the cases cited infra, note 16.
Ante, § 7.
6 1880, People v. Boggs, 56 Gal. 648 (statute
declaring official surveyor's county lines conclu-
sive is constitutional, for the Legislature has
merely sanctioned beforehand such lines as he
runs) ; 1888, Meyer v. Berlaudi, 39 Minn. 438,
40 N. W. 513 (statute giving a building lien,
and making the landowner's failure to forbid by
law conclusive evidence of consent, held invalid
as " a destruction of vested rights without due
process of law") ; 1860, Cooper's Case, 22 N. Y.
67, 90 (statute making the grantee of the di-
ploma of a certain law school entitled to admission
to the bar, held valid, because the Legislature
possessed the power of regulating the terms of
admission) ; 1854, Webb v. Den, 17 How. 576,
578 (statute making a conclusive presumption,
after 20 years' registration of a deed, that it was
properly acknowledged, etc., held valid). The
following case was therefore decided upon the
wrong theory: 1862, Goshen «. Richmond, 4 All.
458 (statute declaring that the validity of a
marriage shall not be questioned on certain
grounds in a collateral proceeding, held valid is
a mere change in the admissibility of evidence).
T 1824, Sandford, C, in Barker v. People,
3 Cow. 686, 705 ("Though no crime is defined
in the Constitntion, and no species of punish-
ment is specially forbidden to the Legislature,
yet there are numerous regulations of the Con-
stitution which must operate as restrictions
upon this general power"); 1856, A. S. John-
sou, J., in Wynehamer v. People, 13 N. Y.
378, 420 ("There may, in respect to offences
attempted to be created by legislation, a question
arise, capable of being considered by Courts of
justice, whether the thing forbidden is an
essential part of either of those secured private
rights [of life, liberty, or property] so essential
that without it the right cannot exist at all").
» 1892, State v. Kingsley, 108 Mo. 135, 18
1668
S. W. 994 (a statute declaring that "every
person who shall obtain hoard or lodging . . .
by means of any trick or deception . . . shall
be held to have obtained the same with the
intent to cheat . . . and shall be guilty of a
misdemeanor," held valid, because "it is
morally wrong to obtain board by means of a
trick . . . and hence it is competent for the
law-making power to declare it a crime").
9 1887, State o. Divine, 98 N. C. 778, 4
S. E. 477 (statute making the president, etc., of a
railroad criminally liable for the killing or in-
jury of stock by the railroad, regardless of the
person's actual share in the causing of the injury,
lield invalid ; the opinion confuses this and the
prima fade question) ; 1882, State v. Kartz, 13
R. I. 528 (statute making it a crime to " keep a
place in which it is reputed that intoxicating
liquors " are kept for illegal sale, held invalid ;
" to introduce into the law the principle that a
person can be punished for what other people say
about him is to render all the constitutional safe-
guards of life, liberty, and property unavailing
for his protection," in particular, the protection
of " due process of law "). In the following case
the point was not decided: 1880, State v.
Thomas, 47 Com. 546 (statute making it an
offence to keep a place ' ' where it is reputed that
intoxicating liquors " are illegally sold, held con-
stitutional ; but the opinion evades the real issue
by holding that the reputation only when " un-
explained and uncontradicted " is to be "con-
clusive evidence"; the argument of Mr. Curtis
for the defendant is ably put).
^^ Besides the foregoing rulings, which in
effect assume this, are the following: 1854,
Pittsfield & F. P. R. Co. v. Harrison, 18 111. 81
("The Legislature may not, indeed, deprive the
party of all means of establishing the facts upon
which his rights depend"): 1899, Vega S. S.
Co. V. Consol. Elev. Co., 75 Minn. 309, 77 N. W.
973 (Gen. St. 1894, § 7675, declaring the certi-
ficate of weight of grain, etc., by the State
§§ 1345-1354] CONSTITUTIOXALITY OF STATUTES.
§ 1354
sort, indeed, are rare; most statutes purporting to do this are really at-
tempts to change the substantive law under the guise of a rule of evidence,
and therefore may or may not be valid, according to the considerations
already noted {supra, par. 1). In the present class, however, would belong
statutes which, while plainly recognizing one fact as still dominant in the
substantive law, and not desiring to change it, should make another fact con-
clusive proof; such a case is almost inconceivable unless the conclusiveness
is attributed to human testimony of the main fact; but it is theoretically
possible, and this explains some of the judicial utterances.^i
Assuming, though, that conclusiveness cannot constitutionally be attributed
by the Legislature to any testimonial evidence as such (ante, § 1353), there
still remain two apparent exceptions, in which conclusiveness can lawfully
be created under some circumstances; one is the finding of an inferior' court,
and the other is the finding of an executive officer within his province of
action, (a) So far as constitutionally the organization of courts and the pro-
hibition of appeals is within the legislative powers of regulation, it is obvious
{ante, § 1347) that a statute which merely regulates the right of appeal from
inferior judicial officers is valid. ^^ (5) Furthermore, so far as the function
of the Executive can constitutionally include the power of decision for itself
upon facts which concern the performance of its duties, the decision of these
facts is no part of the Judiciary's function ; and therefore a legislative sanc-
tion for the conclusiveness of a certain executive officer's decision is no inter-
weiglimaster, "shall be conclusive upon all par-
ties," held unconstitutional, as "an arbitrary
exercise of power, so as to deprive a person
of his day in court to vindicate his rights " ;
the plaintiff was here allowed to prove the
actual amount of grain delivered, in opposition
to the certificate's figures) ; 1876, Howard v.
Moot, 64 K Y. 262, 269 ("It may be conceded,
for all the purposes of this appeal, that a law
that should make evidence conclusive, which
was not so necessarily in and of itself, and thus
preclude the adverse party from showing the
truth, would be void, as indirectly working a
condscation of property or a destruction of
vested rights") ; 1788, Shippen, P., in Pleasants
K. Meng, 1 Dall. 380, 383 ("The nature of evi-
dence necessarily implies an adverse right to
controvert and repel "). See an able and learned
article by Mr. Blewett Lee, 13 Harv. I^aw Rev.
233, 2.52 ("Constitntioual Power of the Courts
over Admission to the Bar ").
The following case, which invoked this prin-
ciple, might have been decided on the theory of
Federal powers {ante, § 6) : 1862, Wantlan v.
White, 19 Ind. 470 (Federal statute that "the
oath of enlistment taken by a recruit shall be
conclusive as to his age," held not to prevent
a minor's guardian, demanding his release, from
shnning the fact).
^^ 1864, Dillon, J., in Allen v. Armstrong,
16 la. 508, 513 (" If the Legislature sliould pass
an act declaring that merely being found in the
possession of property which had been stolen
should be conclusive evidence of guilt, Courts
would be very apt to hold that this was an
assumption and exercise of a power whicli it did
not possess ") ; 1890, Mitchell, J., in Voght v.
State, 124 Ind. 358, 24 N". E. 680. The follow-
ing case would raise the question : 1903, Snyder
V. Bonbright, C. C, 123 Fed. 817 (hy a statute
of 1885, making the owner of a building liiible
for injuries caused through lack of a satisfactory
fire escape, the certificate of an inspector that
the fire escape is satisfactory was conclusive ; the
question of constitutionality was not here raised).
" 1877, Hunter v. Turnpike Co., 56 Ind. 213,
224 (the report of an inspector of u road as to
the fact of completion was made conclusive by
statute ; held valid ; but here a privilege of ap-
peal from the report to the Court existed) ; 1854,
Van Alstyne v. Erwine, 11 N. Y. 331, 341
(statute making the Court's appointment, on
notice, of trustees for the property of an abscond-
ing debtor " conclusive evidence that Ihe
debtor therein named was a concealed, etc.,
debtor," applied) ; 1788, Pleasants v. Meng,
1 Dall. 380, Pa. (statute making a bank-
rupt's certificate of bankruptcy, etc., by the
commissioners "sufBcient evidence"; held here
not to signify "conclusive evidence," i. e. with-
out appeal to examine the proceedings of the
commissioners) ; 1871, Chase, C. J., in U. S. v.
Klein, 13 Wall. 128, 145 (here a statute making
a pardon conclusive evidence of certain facts be-
fore the Court of Claims was held to be incon-
sistent with the light of appeal as otherwise
guaranteed ; Miller and Bradley, JJ., diss.).
1669
§ 1354
RULES OF PEEFEEENCE.
[Chap. XLII
ference with the judicial power. Where the Hue should be drawn may be
sometimes open to argument; but the principle cannot be doiibted. It has
been applied to statutes making final the schedules of rates by railroad com-
missioners,^^ the decisions of immigration officers}^ and of other treasury
officers}^ Here the moral is that if the Legislature is willing to create petty
despots, the community must seek aid through a better Legislature, and not
through a denial of necessary executive functions.
(3) There remains a question which has no concern with the question of
conclusive evidence, but has often been assimilated to it, and has received an
imdeserved importance and- a needless confusion by that association, namely,
the question of the constitutionality of statutes creating rides of presump-
tion or prima facie evidence. A rule of presumption is simply a rule chang-
ing the burden of proof, i. e. declaring that the main fact will be uiferred or
assumed from some other fact until evidence to tlie contrary is introduced
impost, § 2490). There is not the least doubt, on principle, that the Legislature
has entire control over such rules, as it has over all other rules of procedure
in general and evidence in particular {ante, § 7), — subject only to the limita-
tions of evidence expressly enshrined in the Constitution. If the Legislature
can abolish the rules of disqualification of witnesses and grant the rule of
discovery from an opponent, it can shift the burden of producing evidence.
Yet this elementary truth has been repeatedly questioned, and Courts have
1' 1888, State v. Chicago, M. & S. P. R. Co.,
38 Mimi. 281, 37 N. W. 782 (statute making
railroad coininissioners' schedule of rates con-
clusive as to reasonableness, held valid, on the
ground that a common carrier's charges were
within legislative control and hence no judicial
ascertainniL'nt was neoessarj') ; 1889, Chicago
M. & S. P. R. Co. b. Minnesota, 134 U. S. 418,
452, 461, 464, 10 S.ip. 462, 702 (statute making
railroad commissioners' schedule of rates conclu-
sive as to reasonableuHss, held invalid, because
the question of reasonableness "is eminently a
question for judicial investigation, requiring due
process of law for its determination " ; Bradley,
J., and two others, diss., because the question,
being a legislative one, could be delegated for in-
vestigatiou to the commission, " and such a body,
though not a court, is a proper tribunal for the
duties imposed upon it ; . . . due process of law
does not alway.s require a court ; it merely re-
quires such tribunals and pro.-!eedings as are
proper to the subject in hand "). Here again
there is a current notion that the language of
the law of evidence can be used to evade the
issue: Ark. St. 1901, Feb. 27, No. 24 ("An act
to define a rule of evidence in certain case.s: lu
all actions between pilvate parties and railroad
companies brought under the law establishing a
railroad oommi-ision . . . [the commission's
rates prescribed] shall be held, deemed, and ac-
cepted to be reasonable, fair, and just, and in
such respects shall not be controverted therein ").
" 1891, ]Sri.shimura Ekiu v. U. S., 142 U. S.
651, 660, 12 Sup. 336 (a Federal statute making
conclusive the decision of an immigration inspec-
tor that an alien immigrant is within the classes
prohibited from entering, held valid ; Brewer,
J., diss.); 1892, Fong Yue Ting v. U. S., 149
U. S. 698, 713, 732, 742, 754, 761, 13 Sup. 1016
(preceding case approved and applied to a de-
portation statute; "the power of Congress to
expel, like the power to exclude aliens, . . .
may be exendsed entirely through executive
officers " ; the prior cases marking the boundary
between executive and judicial matters are here
collected ; Brewer and Field, JJ., and Fuller,
C. J., diss.); 1895, Lem Moon Sing v. U. S.,
158 id. 538, 15 Sup. 967 (preceding cases ap-
proved) ; 1901, Fok Yung Yo v. U. S., 185 id.
296, 22 Sup. 686 ; 1901, Lee Gon Yung v.
U. S., ib. 306, 22 Sup. 690 ; 1901, Chin Bak
Kan V. U. S., 186 id. 193, 22 Sup. 891 ; 1903,
Kaoru Yamataya a. Fisher, 189 U. S. 86, 23
Sup. 611 (Nishinuira Ekiu's case followed ; but
the statute implies at least " an opportunity to
be heard " before the executive department
"upon the questions involving his right to
bo and to remain in the U. S."). Compare
the distinction taken in Lavin v. Le Fevre, 60
C. C. A. 425, 125 Fed. 693 (1903). One can-
not help regretting that the Supreme Court
sanctioned the Executive usurpation which the
Legislature authorized in the preceding class
of statutes.
1= 1855, Murray v. Hoboken L. & I. Co., 18
How. 272, 284 (statute making a warrant of dis-
tress for debt due from a government collector
to the United States conclusive evidence of the
indebtedness, held valid as covering a matter
not essentially one of determination by tbejudi-
cial power).
167Q
§§ 1345-1354] CONSTITUTIONALITY OF STATUTES.
§ 1354
repeatedly vouchsafed an unmerited attention to the question, chiefly through
a hesitation in appreciating the true nature of a presumption and a tendency
to associate in some indefinite manner the notion of conclusively shutting
out all evidence and that of merely shifting the duty of producing it. For-
tunately, sound principle has almost everywhere prevailed, though at an
unnecessary expense of argument and hesitation.
Statutes giving presumptive or prima facie weight have therefore been
held constitutional in application to tax-collectors' deeds, as raising a presump-
tion of regularity of proceedings,^'' to conduct indicating a banker's knowledge
of insolvency ; •'^ to conduct indicating illegaLgammff ^^ or illegal liquor-
selling'^^ (though here there is one line of singuTOly perverse decisions ^^), to
the findings of an auditor or referee in a trial,^i and to the schedules of rates
of a railroad commission?''^
^^ To the cases cited supra, note 4, which
. almost all concede this, add the following : 1 893,
McDonald v. ConiiilT, 99 Cal. 386, 390, 34 Pac.
71 ; 1894, Clarke v. Mead, 102 id. 516, 519, 36
Pac. 862 ; 1888, Gage v. Caraher, 125 111. 451,
17 N. E. 777 ; 1855, Hand v. Ballon, 12 N". Y.
541 ; 1851, Pillow v. Roberts, 13 How. 472, 476 ;
1893, Marx u. Hauthorn, 148 U. S. 172, 181,
13 Sup. 508 ; 1856, Delaplaine v. Cook, 7 Wis.
44 (well-reasoned opinion by Whiton, C. J.).
1' 1894, Robertson v. People, 20 Colo. 279,
38 Pac. 326 (statute making a bank's failure
■within 30 days of a deposit prima facie evidence
of knowledge of insolvency, held constitutional) ;
1896, Meadowcroft v. People, 163 111. 56, 45
N. E. 303, 991 (insolvent bankers' statute, held
constitutional); 1896, State w. Beach, — Ind.
— , 43 N. E. 949 (statute making failure of a
bank within 30 days after receiving a deposit to
be prima fade evidence of intent to defraud,
held constitutional) ; 1894, State v. Buck, 120
Ml). 479, 25 S. W. 573 (insolvent hankers' stat-
ute, held valid). So also the following : 1903,
Crane v. Waldron, — Mich. — , 94 N. W. 593
(fraudulent conveyances).
" 1888, Morgan v. State, 117 Ind. 569, 17
N. E. 154 (statute declaring the fact of gaming,
etc., to a lessor's knowledge to be sufficient evi-
dence of renting for the purpose of gaming, held
constitutional) ; 1890, Voght v. State, 124 id.
358, 24 N. E. 680 (same statute held eoustitu-
tional, and treated as merely defining a presump-
tion) ; 1896, Com. v. Smith, 166 Mass. 370, 44
K. E. 503.
i» 1856, Com. V. Williams, 6 Gray 1 (statute
declaring delivery of intoxicating liquor prima
facie evidence of a sale, held valid : 'Thomas, J.,
diss.) ; 1856, Com. v. Wallace, 7 id. 222 (same ;
but 'rhomas, J., not diss.) ; 1859, Com. o. Rowc,
14 id. 47 (same) ; 1886, Board v. Merchant, 103
N. Y. 143, 149, 8 N. E. 484 (statute making the
drinking of liquor on pi-emises prima facie evi-
dence of the occupant's sale with intent that the
liquor should be there drunk, held valiil) ; 1893,
People V. Cannon, 139 id. 32, 34 N. E. 759
(statute making the possession of marked bottles
without the owner's consent prima fa/Ae evidence
of unlawful purchase, held yalid).
1671
20 1881, State v. Be-swiok, 13 R. I. 211 (stat-
ute making the "notorious character" of prem-
ises or their frequenters "prima fade evidence
that said liquors are kept on such premises for
the purposes of sale," held invalid, as depriving
of liberty without "the law of the land," be-
cause " it virtually strips the accused of the pro-
tection of the common-law maxim that every
person is presumed innocent until he is proved
guilty " ; yet the same ruling holds that another
clause of tlie statute placing on the accused the
burden of proof of a license is valid ; the opinion
discloses confused notions as to the nature of
presumptions and burden of proof); 1881, State
V. Higgins, ih. 330 (statute making the sale of
liquor in a place "prima facie evidence that the
sale is illegal," held valid, as in effect merely
placing on the defendant the burden of proving
a license; prior case distinguished) ; 1882, State
V. Mellor, ib. 666 (similar case to the preceding,
butajiparently inconsistent) ; 1885, State v. Wil-
son, 15 R. 1. 180, 1 Atl. 415 (a statute mak-
ing reputation merely evidence of the character
of a place as a liquor nuisance, leaving the jury
"free to iind the accused guilty or not," held
constitutional).
" 1877, Holmes v. Hunt, 122 Mass. 505, 516
(statute making the report of an " auditor," or
referee in civil cases, prima facie evidence, helii
valid). Ccmtra: 1860, Plimpton v. Somerset, 33
Vt. 283 (statute making a referee's report prima
fade evidence in common-law cases, held invalid,
because the jury's verdict "becomes but the
mere recording of a verdict nade for them by
others"; Barrett, J., diss.). For the state of the
doctiine in New Hampshire, which was rested
largely oh historical grounds, see the following
cases: 1875, Copp v. Henniker, 55 N. H. 179;
1876, Doyle v. Doyle, 56 id. 567 ; 1876, Perkins
V. Scott, 57 id. 55; 1876, King v. Hopkins, ib.
334, 354, 359 ; in the last case, the opinion of
Foster, C. J., deals with the question of evidence,
and, while ap])arently conceding the legislative
power to make rules oi prima fade evidence, it re-
gards this statute as a virtual substitution of an-
other tribunal for the jury ; but his argument is
labored ; the answer of Gushing, 0. J., is ample.
"" 1894, Chicago B. & Q. R. Co. .,. Jones, 149
§ 1354
EULES OF PREFEEENCE.
[Chap. XLII
It has occasionally been suggested that these legislative rules of presump-
tion, or any legislative rules of evidence, must be tested by the standard of
rationality, and are invalid if they fall short of it.^'^ But this cannot be con-
ceded. If the Legislature can make a rule of evidence at all (ante, § 7), it
cannot be controlled by a judicial standard of rationality, any more than its
economic fallacies can be invalidated by the Judicial conceptions of economic
truth. Apart from the Constitution, the Legislature is not obliged to obey
either the axioms of rational evidence or the axioms of economic science. All
that the Legislature does in such an event is either to render admissible a fact
which was before inadmissible, or to place the burden of producing evidence
on the opposite party. When this has been done, the jury is free to decide;
or, so far as it is not, this is because the party has voluntarily failed to adduce
contrary evidence. There is here nothing conclusive, nothing prohibitive.
So long as the party may exercise his freedom to introduce evidence, and the
jurors may exercise their freedom to weigh it rationally, no amount of irra-
tional legislation can change the result. If the Judiciary had long ago
resented as unconstitutional that ill-advised species of legislative interference
which forbade them to charge juries upon the weight of evidence, they need
never have cared about the evidential effect of enactments of the present
sort.
111. 361, 37 N. E. 2i7 (statute making railroad
commissioners' schedule of rates prima facie
eyidence of their reasonableness, held constitu-
tional) ; 1891, Burlington C. R. & N. R. Co. v.
Dey, 82 la. 312, 48 N. W. 98 (statute making
railroad coramis.sioners' schedule of rates prima
facie evidence of reasonableness, held constitu-
tional) ; and cases cited supra, note 13.
23 1896, Monks, J., in State v. Beach, —
Ind. — , 43 N. E. 949 ("a statute which makes
an act prima fade evidence of a crime, which
has no relation to a criminal act and no tendency
whatever to establish a criminal act," would be
unconstitutional) ; 1856, Selden, J., in Wyne-
hamer i/. People, 13 N". Y. 378, 446 (statute
making delivery ^nma/acic evidence of sale of
liquor, declared invalid, on the ground that ' ' all
those fundamental rules of evidence . . . are
placed by the Constitution beyond the reach of
legislation . . . and are of course in their na-
ture unchangeable " ; this was obiter, the other
judges not noticing the point) ; 1893, Peck-
ham, J., in People v. Cannon, 139 N. Y. 32, 34
K. E. 759 ("The limitations are th.at the fact
upon which the presumption is to rest must have
some fair relation to or natural connection with,
the main fact. The inference of the existence
of the main fact, because of the existence of the
fact actually proved, mu.st be not merely and
purely arbitrary, or wholly unreasonable, unnat-
ural, and extraordinary ").
1672
§§ 1360-1366] BOOK I, PAET II. § 1361
Title II: ANALYTIC EULES (THE HEAESAY EULE).
INTRODUCTORY.
THEORY AND HISTORY OF THE HEARSAY RULE.
CHAPTER XLIII.
§ 1360. Nature of Analytic Rules.
§ 1361. Nature of Hearsay, as an Extrajudi-
cial Testimonial Assertion.
§ 1362. Theory of the Hearsay Rule.
§ 1363. SpuriousTheoriesoftheHearsayRule.
§ 1364. History of the Hearsay Rule.
§ 1365. Cross-examination and Confrontation.
§ 1866. Division of Topics.
§ 1360. Nature of the Analytic Rules. Of the Auxiliary Eules {ante,
§ 1171) aiming at the amelioration of probative value, the second type is
the Analytic Rule, i. e. a rule which accomplishes the desired aim by subject-
ing the offered evidence to a scrutiny or analysis calculated to discover and
expose in detail its possible weaknesses, and thus to enable the tribunal to
estimate it at no more than its actual value. Such a rule differs from a
Preferential rule {ante, §§ 1171, 1286) in that it does not purport to require
one kind of testimony before another can be resorted to. It differs from a
Prophylactic rule {post, § 1813) in that the latter aims to prevent or elimi-
nate beforehand the possible defects of the evidence, while the present type
of rule ainis at exposing those which have not otherwise been thus forestalled
or eliminated. That it differs from the Synthetic or Quantitative rules {post,
§ 2030) is clear enough. Finally, it differs from the Simplificative rules
{post, § 1863) in that it does not a priori strike out and exclude the evidence
as undesirable, but merely insists on accompanying its admission by tests
calculated to expose possible defects.
There is but one rule of the Analytic type, — the Hearsay rule ; though
this rule involves two branches or processes. Cross-examination and Confron-
tation. The details of these two branches can be later examined {post,
§§ 1367-1418). At this point it is desirable first to examine the theory and
the history of the Hearsay rule in general.
§ 1361. Nature of Hearsay, as an Extrajudicial Testimonial Assertion.
When a witness A on the stand testifies, " B told me that event X occurred,"
his testimony may be regarded in two ways : (1) He may be regarded as
asserting the event X upon his own credit, i. e. as a fact to be believed be-
cause he asserts that he knows it. But when it thus appears that his asser-
tion is not based on personal observation of event X, his testimony to that
event is rejected, because he is not qualified by proper sources of knowledge
to speak to it. This involves a general principle of Testimonial Knowledge,
already examined (awie, §§ 657, 665), and does not involve the Hearsay rule
proper.
1673
§ 1361 HEARSAY RULE. [Chap. XLITI
(2) But suppose, in order to obviate that objection, that we regard A as
not making any assertion about event X (of which he has no personal knowl-
edge), but as testifying to the utterance in his h,earing of B's statement as
to event X. To this, A is clearly qualified to testify, so that no objection can
arise on that score. The only question, then, can be whether this assertion
of B, reported by A, is admissible as evidence of the event X, asserted by B to
have occurred. It is clear that what we are now attempting to do is to prove
event X by B's assertion; the utterance of B's assertion being itself proved
by A's testimony to it. In other words, merely the making of B's assertion
is properly proved by A ; but the occurrence of event X is also sought to be
proved, by this assertion of B, which was uttered out of court, but is offered
testimonially for the same purpose as if it were being made presently by B
on the stand. This, the true significance of hearsay testimony, is brought out
in the following passages :
1713, Craig v. Earl of Anglesea, 17 How. St. Tr. 1162: "If declarations of persons
dead were to be admitted, they would in effect have the force of original testimony."
1S27, Mr. Jeremy Bentham, -Rationale of Judicial Evidence, b. VI, c. IV : " It is of the
essence of hearsay evidence to present to the notice of the judge two distinct persons in
the character of witnesses : (1) a supposed percipient and extrajudicially narrating wit-
ness, stating at some antecedent point of time, in the hearing of any person not on that
occasion invested with the authority of a judge, some matter of fact as having had place;
and (2) a deposing, or say judicially narrating witness, who bears testimony not to the
truth of that matter of fact, but to its having actually been asserted on the extrajudicial
occasion in question by the extrajudicially stating or narrating witness."
1860, Chief Justice ..4;)pZeton, Evidence, 174: "In aU cases of hearsay the effective
witness is the individual, whether party or not, whose supposed statements the narrating
witness relates. The individual testifying is merely the conduit or pipe through whose
agency the impressions of some one else are conveyed to the Court. The real proof is
the hearsay statement." ^
It is these extrajudicial testimonial assertions which the Hearsay rule pro-
hibits. The Hearsay rule points out that B's assertion, offered testimonially,
is not made on the stand and presently, but out of court anteriorly, and
challenges it upon that ground. The Hearsay rule tells us that B's assertion
(even assuming B to have been qualified, by knowledge and otherwise, as
witness) cannot be accepted because it has not been made at a time and place
where it could be subjected to certain essential tests or investigations calcu-
lated to demonstrate its real value by exposing such latent sources of error.
The Hearsay rule predicates a contrast between assertions untested and asser-
tions tested ; it insists upon having the latter.
What is the nature of the test thus required by the Hearsay rule ?
§ 1362. Theory of the Hearsay Rule. The fundamental test, shown by
experience to be invaluable, is the test of Gross-examination. The rule, to
be sure, calls for two elements, Cross-Examiuation proper, and Confrontation ;
but the former is the essential and indispensable feature, the latter is only
' So also Sir J. F. Stephen, in his Report Ali and Woodroffe's edition of the Act, 1898,
on the Indian Evidence Act (quoted in Sved Appendix).
1674
§§ 1360-1366 GENEEAL THEOEY. § 1362
subordinate and dispensable {post, § 1395). The theory of the Hearsay rule
is that the many possible deficiencies, suppressions, sources of error and un-
trustworthiness, which lie underneath the bare untested assertion of a witness
may be best brought to light and exposed by the test of Cross-examination.
Of its workings and its value, more is to be seen in detail {post, §§ 1367-
1394). It is here sufficient to note that the Hearsay rule, as accepted in our
jurisprudence, signifies a rule rejecting assertions, offered testimonially, which
have not heen in some way subjected to the test of Gross-examination :
1743, Craig dem. Annesley v. Karl of Anglesea, 17 How. St. Tr. 1160: the legitimacy
of the plaiiitifi as heir was in issue ; the declavatious of Mrs. Piggot, a deceased intimate
friend of his alleged mother, were offered. " This was objected to by defendant's counsel,
who insisted that hearsay was not evidence; . .'. that Mrs. Piggot is dead, and where
persons are dead, the law hath not provided for their testimony, nor will it substitute a
mere declaration in the place of an oath ; . . . that the admitting hearsay evidence in the
present affair would introduce a dangerous precedent, in regard the other side could not
have the benefit of cross-examining; in some cases, it is true, hearsay evidence is admit-
ted fiom the necessity of the thing ; . . . that in civil cases there is not the same necessity,
because a bill in equity may be filed to perpetuate the testimony of ancient witnesses, and
then the evidence may be cross-examined ; but Mrs. Piggot being dead, no declaration
of hers can be evidence, because the defendant has no opportunity to cross-examine her.'
. . . The Court would not admit the hearsay of Mrs. Piggot's declaration to deponent to
be made use of as evidence, on the principal reason that hearsay evidence ought not to be
admitted, because of the adverse party's having no opportunity of cross-examining."
1806, Mr. (later V. C.) Plumer, arguing in Lord Meldlle's Trial, 29 How. St. Tr. 747:
"It is a universal principle of the law of evidence (subject to certain exceptions) that
what one man says, does, or writes, behind the back of another, cannot be received in any
criminal court to affect anybody but himself. . . . Every individual who stands upon his
trial in a British court of justice has a clear right to have the witness brought in the front
of the Court, to be submitted to his cross-examination, that he may have an opportunity
of inteirogating him respecting all the particulars of the fact."
1881, Lord Blackburn in Dysarl Peerage Case, L. R. 6 App. Gas. 503: "In England,
hearsay evidence, that is to say, the evidence of a man who is not produced in court and
who therefore cannot be cross-examined, as a general rule is not admissible at all."
1812, Kent, C. J., in Coleman v. Southmck, 9 John. 50 : " Why not produce S. to
testify what he told the defendant, instead of resorting to a bystander who heard what
he said ? . . . Hearsay testimony is from the very nature of it attended with all such
doubts and diflSculties, and it cannot clear them up. ' A person who relates a hearsay is
not obliged to enter into any pai'ticulars, to answer any questions, to solve any difficulties,
to reconcile any contradictions, to explain any obscurities, to remove any ambiguities ; he
entrenches himself in the simple assertion that he was told so, and leaves the burden en-
tirely on his dead or absent author.' . . . The plaintiff by means of this species of evi-
dence would be taken by surprise and be precluded from the benefit of a cross-examination
of S. as to all those material points which have been suggested as necessary to throw full
light on his information."
18:i7, Duncan, J., in Farmers' Bank v. Whiiehill, 16 S. & R. 89 : " The general objection
to the deposition of John Buck is that it is in the nature of hearsay evidence and that the
defendant had no opportunity of cross-examination."
1851, Drummond, J., in U. S. v. Macomb, 5 McLean 286 : " The ground upon which we
proceed in each case is the presumption of the truth of the declarations, they being sub-
jected to the tests which the law recognizes, — the presence of the accused and the right
of cross-examination. ... Of course it is clear that such testimony [as a mere sworn
statement before a magistrate] could not be admitted in a court of law ; for, first, the wit-
voL. 11. — 43 1675
§ 1362 HEARSAY RULE. [Chap. XLIII
ness was living ; and, secondly, the defendant had no opportunity of cross-examining
him ; and, however the authorities may differ as to the first, they all agree as to the
second point, that being an indispensable prerequisite to the introduction of testimony."
1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. VI, c. I, § 2 : " In every
instance that inferiority in respect of probative force, in consideration of which the term
Makeshift [i. e. Hearsay] was found applicable with equal propriety to them all, will be
seen to have for its cause the absence of one of the principal securities for correctness and
completeness, viz. interrogation ex adverso at the hands of a party whose interest, in the
event of its being incorrect or incomplete, may in proportion to that incorrectness or
incompleteness be made to suffer by it.''
In the foregoing passages. Cross-examination alone is mentioned as the
test required by and involved in the Hearsay rule. In most instances, how-
ever, we find the Oath coupled with Cross-examination in the definition of
the rule. That this coupling is merely accidental may easily be shown ; but
the following passages, naming oath and cross-examination, serve at least to
exhibit the general notion that has commonly been conceded to characterize
the Hearsay rule :
1716, Serjeant Hawkins, Pleas of the Crown, b. II, c. 46, § 44: " How far hearsay shall
be admitted. It seems agreed that what a stranger has been heard to say is in strictness
no manner of evidence either for or against a prisoner, not only because it is not upon
oath, but also because the other side hath no opportunity of a cross-examination."
1773, Mr. Peckham, objecting, in Fabrigas v. Moslyn, 20 How. St. Tr. 135, to testimony
about a statement of a native magistrate (or mustastaph) in Minorca : " Hearsay is no evi-
dence. . . . Now can what he has said in Minorca to this witness be admitted as evidence
here '? The mustastaph is living, why don't they produce him ? If they had brought him
here, we could have his evidence on oath and could cross-examine him to the facts."
1837, Wright v. Tatham, 7 Ad. & E. 313, 5 CI. & F. 689 ; letters were offered from
absent persons, treating the testator as a competent person ; Mr. Cresswell, objecting :
" All the letters were inadmissible, because they presented statements which could not
be verified by oath, and subjected to the test of cross-examination. ... In a particular
case the assertion, without oath, of a respectable man might influence a reasonable mind ;
but the rule established for the safe administration of justice in general is that evidence
unconfirmed by oath and not subject to cross-examination shall not be received " ; Mr.
Starkie, on the same side : " The witness from whom it comes ought to be cross-examined
as to the means he had of forming a judgment and the diligence and good faith with
which they were applied. Here that test is wanting. ... It may well be suggested
[that the writers had other motives]. Suggestions of that kind are to be excluded only
by submitting to those tests of knowledge and sincerity which the law requires. . . . The
admission of evidence not on oath will be foimd in all cases to depend upon its being
subject to tests which guarantee knowledge and sincerity " ; the letters were excluded as
hearsay, on the following grounds : Coliman, J. : " The administering of an oath furnishes
some guarantee for the sincerity of the opinion, and the power of cross-examination gives
an opportunity of testing the foundation and the value of it" ; Bosnnquet, J. : "If the
writers of these letters were produced as witnesses and examined upon oath, their opinion
would be receivable in evidence, because the grounds of their knowledge and the credi-
bility of their testimony might be ascertained by cross-examination " ; Williamii, J. : " It
is opinion presented in such a shape as makes it inadmissible for want of the sanction of an
oath, under which evidence of opinion is always given ; which sanction is required for
this weighty reason, — that opinion, however imposing from the real or supposed respect-
ability of the person expressing it, may, after diligent and patient inquiry and examina-
tion before those to whose judgment all evidence is addressed, be deemed by them to rest
1676
§§ 1360-1366] GENERAL THEORY. § 1362
upon a precarious foundation or upon none at all " ; Alderson, B. : " The general rule is
that facts are to be proved by testimony of persons on oath and subjected to cross-exam-
ination. ... If, therefore, the letters are to be used as proofs of the opinion of the wri-
ters respecting Mr. Marsden's capacity, the objection to their admissibility is that this
opinion is not upon oath, nor is it possible for the opposite party to test by cross-exam-
ination the foundation on which it rests."
1867, O'Brien, J., in Gresham Hotel Co. v. Manning, Tr. R. 1 C. L. 125 : " The state-
ments and declarations of opinion received in evidence in this case were made by parties
not examined upon oath or subject to cross-examination, and would not ... be ex-
empted from the general rule excluding hearsay evidence."
1317, Swift, C. J., in Chapman v. Chapman, 2 Conn. 348: "It is a general principle
in the law of evidence that hearsay from a person not a party to the suit is not admis-
sible ; because such person was not under oath and the opposite party had no opportunity
to cross-examine."
1843, Shaw, C. J., in Warren v. Nichols, 6 Mete. 261 : "The general rule is that one
person cannot be heard to testify as to what another person has declared in relation to a
fact within his knowledge and hearing upon the issue. It is the familiar rule which ex-
cludes hearsay. The reasons are obvious, and they are two : first, because the averment
of fact does not come to the jury sanctioned by the oath of the party on whose knowledge
it is supposed to rest ; and, secondly, because the party upon whose interests it is brought
to bear has no opportunity to cross-examine him on whose supposed knowledge and
veracity the truth of the fact depends."
1868, Breese, C. J., in Marshall v. R. Co., 48 111. 476 : " The general rule is that hear-
say evidence ... is not admissible, for the reason that such statements are not subjected
to the ordinary tests required by law for ascertaining their truth, — the author of the
statements not being exposed to cross-examination in the presence of a court of justice,
and not speaking under the penal sanction of an oath, with no opportunity to investigate
his character and motives, and his deportment not subject to observation."
1872, Kingman, C. J., in State v. Medlicott, 9 Kan. 283, 287 : " These rules [as to hear-
say] have been adopted to guard against the manifest danger to human life that is so
liable to arise from the admission as evidence of declarations not made under the sanction
of an oath and not offering to the party to be affected by them an opportunity of cross-
examination, or to call attention to omitted facts that if stated might modify or com-
pletely overturn the inference drawn from the declarations made. . . . These rules have
been found so essential as safeguards in the investigation of truth that they have become
fundamental in our system of jurisprudence, and some of them have been placed for
greater security in our constitutions. No matter how convincing the testimony may be
to the intelligent mind, unless it can be presented under fixed rules it cannot be received."
1892, Field, C. J., in Com. v. Trefethen, 157 Mass. 185, 31 N. E. 961 : " The argument,
in short, is that such evidence is hearsay. It is argued that such declarations are not
made under the sanction of an oath, and that there is no opportunity to examine and
cross-examine the person making them, so as to test his sincerity and truthfulness or the
accuracy and completeness with which the declarations describe his intention." ^
1 Accord: Eng. : 1811, Wood, B., in Berke- J., in Starkey v. People, 17 111. 20 ; 1862,
ley Peerage Case, 4 Camp. 406 ; 1820, Abbott, "Walker, J., in Barnes v. Simmons, 27 id. 513 ;
C. J., in Doe v. Ridgway, 4 B. & Aid. 54 ; 1832, 188,5, Craig, J., in Digby v. People, 113 id. 128 ;
R. V. Davlin, Jebb Or. C. 127 ; 1867, Lush, J., Ind. : 1869, Ray, J., in Morgan v. State, 31 Ind.
in Smith v. Blakey, h. B. 2 Q. B. 326 ; 1869, 199 ; Ky. : 1800, Muter, C. J., in Cherry v.
Byles, J., in R. v. Jenkins, L. R. 1 C. C. E. 193; Boyd, Litt. Sel. Gas. 8 ; 1855, Simpson, J., in
1876, Jessel, M. R., in Sugden v. St. Leonards, Walston v. Com., 16 B. Mour. 15, 35 ; 1872,
L. R. 1 P. D. 154 ; Ala. : 1830, "White, J., in Hardin, J., in Leiber v. Goto., 9 Bush 13 ;
Drish V. Davenport, 2 Stew. 270; 1875, Man- La.: 1858, "Voorbies, J., in Stale v. Brunetto,
ning, J., in "Walker v. State, 52 Ala. 193 ; Ark. : 13 La. An. 45 ; Me. : 1858, Rice, .L, In Heald
1852, Johnson, C. J., in Cornelius v. State, 12 v. Thing, 45 Me. 392; Md. : 1860, Le Grand,
Ark. 804 ; Conn. : 1860, Sanford, J., in State v. C. J., in Green v. Gaulk, 16 Md. 572 ; 1874,
Dart, 29 Conn. 153, 155; III.. 1855, Skinner, Alvey, J., in Maitland v. Bank, 40 id. 559;
1677
§ 1362 HEARSAY RULE. [Chap. XLIII
In the preceding passages, the testing required by the Hearsay rule is spokeu
of as cross-examination under oath. But it is clear beyond doubt that the
oath, as thus referred to, is merely an incidental feature customarily accom-
panying cross-examination, and that cross-examination is the essential and
real test required by the rule. That this is so is seen by the perfectly well-
established rule that a statement made under oath (for example, in the shape
of a deposition or an affidavit or testimony before a magistrate) is nevertheless
inadmissible if it has not been subjected to cross-examination {post, §§ 1373-
1377, 1708). In other words, a statement made under oath is, merely as
such, equally obnoxious to the Hearsay rule.^ Owing to the practice of
requiring an oath (or its modern substitute, an affirmation) before proceed-
ing to examination and cross-examination, the case does not happen to arise
of testimony which has been tested by cross-examination and yet lacks the
oath, so that the tenor of the rule as above stated cannot be demonstrated by
that situation. But is sufficiently and clearly demonstrated (as above noted)
by the fact that, even though an oath has been taken, the statements are
still excluded if not subjected to cross-examination ; as well as by the further
fact that, whenever an exception to the Hearsay rule (post, § 1422) is found
established, i. e. whenever statements not subjected to cross-examination are
exceptionally received, it is not required that they shall have been made
under oath. It is thus apparent that the essence of the Hearsay rule is a
requirement that testimonial assertions shall be subjected to the test of
cross-examination, and that the judicial expressions (above quoted) coupling
oath and cross-examination, had in mind the oath as merely the ordinary
accompaniment of testimony giveu on the stand, subject to the essential test
of cross-examination.
Mass.: 1851, Fletcher, J., in Lund v. Tyngs- ing v. Com., 110 Pa. 105, 1 Atl. 314; S. C. :
borough, 9 Gush. 40; 1852, Shaw, C. J., in 1819, Cheves, J., in Drayton v. AVells, 1 Nott
Com. V. Starkweather, 10 id. 60 ; 1856, Thomas, & MoC. 248 ; 1844, Kinhardson, J., in State v.
J., in Bartlett v. Emerson, 7 Gray 176 ; Miss. : Campbell, 1 Rich. L. 126 ; 1846, Id., in Walker
1852, Yerger, J., in Lampley v. Scott, 24 Miss. v. Meetze, 2 id. 571 ; 1851, Evans, J., in Robin-
539 ; JVeir. .■ 1886, Reese, J., in Ponca v. Craw- son v. Blakely, 4 id. 588 ; 1880, McGowan, J.,
ford, 18 Nebr. 557, 26 N. W. 365 ; N. H. : in State v. Belcher, 13 S. C. 459, 462 ; Tenn. :
1847, Parker, C. J., in Patten v. Ferguson, 18 1848, Green, J., in Phillips v. State, 9 Humph.
N. H. 529; N. J.: 1826, Ewing, C. J., in 249; Tex.: 1895. Brown, J., in Byere w. State,
WestBeld v. Warren, 8 N. J. L. 250 ; 1889, 87 Tex. 503, 28 S. W. 1056, 29 S. W. 761 ;
Beasley, C. J., in Estell v. State, 51 id. 184, 17 U. S. : 1823, Story, J., in NichoUs v. Webb, 8
Atl. 118 ; N. Y. : 1818, Thompson, C. J., in Wheat. 326, 333 ; 1869, Miller, J., in Allen v.
Wilson V. Boerem, 15 John. 286 ; 1884, Earl, Killinger, 8 Wall. 487 ; 1870, Peck, J., in Med-
J., in Waldele v. R. Co., 95 N. Y. 274 ; N. 0. : way v. U. S., 6 Ct. of CI. 434 ; 1873, Field, J.,
1833, Daniel, J., in State v. May, 4 Dev. 334 ; in Chaffee v. U. S., 18 Wall. 541 ; Vt. : 1881,
1842, Gaston, J., in State v. Patterson, 2 Ired. Veazey, J., in State v. Wood, 53 Vt. 564 ; Va. :
353 ; 1855, Pearson, J., in State v. Shelton, 2 1853, Allen, J., in Brogy's Case, 10 Graft. 729 ;
Jones L. 364; 1872, Rodman, J., in State v. Treatises: 1801, Peake, Evidence, 10; 1802,
Williams, 67 N. C. 14 ; 1887, Davis, J., in State McNally, Evidence, 360 ; 1806, Evans, Notes on
V. Hargrave, 97 id. 458, 1 S. E. 774 ; 1894, Pothier, II, 250 ; 1810, Swift, Evidence, 121 ;
Burwell, J., in Propst. v. Mathis, 115 id. 526, 1843, Greenleaf, Evidence, § 124.
20 S. E. 710 ; Oh. : 1856, Baitley, C. J., in 2 1899, Vann, J., in Lent v. Shear, 160
Simmons v. State, 5 Oh." St. 343; Pa. : 1813, N. Y. 462, 55 N. E. 2 ("Declarations made
Tilghman, C. J., in Longenecker o. Hyde, 6 under oath do not differ in principle from de-
Binn. 1 ; 1815, Id., in Com. o. Stewart, 1 S. & clarations made without that sanction, and both
R. 344; 1823, Id., in Buchanan v. Moore, 10 come within the rule which excludes all hearsay
id. 275 ; 1827, Gibson, 0. J., in Moritz v. evidence ").
Brough, 16 id. 409 ; 1885, Green, J., in Rail-
1678
§§ 1360-1366] GENERAL THEOEY. § 1363
§ 1363. Spurious Theories of the Hearsay Rule. Occasionally there have
been advanced other reasons or definitions of the Hearsay rule, — though
without much emphasis, and usually as supplementary only to the orthodox
theory.
(1) It has been said, for example, that hearsay assertions are to be excluded
because of the risk of incorrect transmission of the statements by the one
reporting them :
1851, Fletcher, 3 ., in Lund v. Tyngsborough, 9 Cush. 40: "The danger that casual
observations would be misunderstood, misremembered, and misreported, increases the
number and force of the objections to the admission of hearsay."
1868, Breese, C. J., in Marshall v. R. Co., 48 111. 476 (after naming the real reason) :
" And the misconstruction to which such evidence is exposed from the ignorance or
inattention of the hearers, or from criminal motives, are powerful additional objections."
To this supposed reason there are two conclusive answers : (a) This theory
would exclude only oral assertions; yet the Hearsay rule excludes with
equal strictness the best-authenticated written assertions of all sorts, — let-
ters, sealed documents, affidavits, and the like, — and, of the numerous
exceptions to the rule, only one or two show any special favor to written
assertions. (&) Other oral statements, not offered as exceptions to the Hear-
say rule, but as admissions (ante, § 1048), or as impeaching evidence (ante,
§ 1017), or as res gestce utterances (post, § 1768), are never excluded because
they are oral, and never admitted because they are written ; and yet they are
equally obnoxious to this supposed policy of excluding that which is liable
to incorrect and garbled transmission.
(2) It has been said, by eminent names, that hearsay evidence possesses
some intrinsic weakness :
1813, Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch 295: " That this species
of testimony supposes some better testimony which might be adduced in the particular
case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to
satisfy the mind of the existence of the fact, and the frauds which might be practised
under its cover, combine to support the rule that hearsay evidence is totally inadmissible.''
1836, Slory, J., in Ellicott v. Pearl, 10 Pet. 436: "[Besides lacking oath and cross-
examination, its fault is] . . . that it is peculiarly liable to be obtained by fraudulent
contrivances, and above all that it is exceedingly infirm, unsatisfactory, and intrinsically
weak in its very nature and character."
The charge of intrinsic weakness, so far as this vague expression is open to
interpretation, seems to mean nothing more than that such statements lack
the trustworthiness that the test of cross-examination might supply. The
further suggestion of a peculiar liability to fraudulent manufacture seems to
mean that oral utterances of the sort can by false witnesses be placed in the
mouth of absent persons ; and no doubt this is so. But, in the first place,
this is not true of written statements offered and authenticated in court, and
yet the Hearsay rule equally excludes these ; and, in the second place, it is
just as true of the other oral and receivable utterances above named, and yet
these are equally admissible with written statements. There seems to be no
soundness in either of the above suggestions.
1679
§ 1363 HEARSAY RULK [Chap. XLIII
(3) The Hearsay rule has sometimes been stated in part by describing
the distinct principle above named {ante, § 1361, par. 1) requiring personal
Icnowledge as one of a witness' qualifications :
1842, Professor Simon Greenleaf, Evidence, § 98 : " It is requisite that whatever facts
the witness may speak to, he should be confined to those lying in his own knowledge,
whether they be things said or done, and should not testify from information given by
others, however worthy of credit they may be."
But here we are not regarding the reported statement of the absent person
as a testimonial assertion ; we are thinking of the witness on the stand as
speaking directly to the ultimate fact, and we are denying the sufficiency
of his knowledge of this fact. This is not a question of the Hearsay rule,
but of the witness' Testimonial Qualifications {ante, §§ 657, 1361).*
(4) We sometimes think of " hearsay " as a merely anonymous utterance or
rumor ; but such anonymity is not the source of the Hearsay rule's exclu-
sion. An anonymous assertion would in any event be excluded, because
the author is not shown to be qualified by knowledge and otherwise. The
Hearsay rule assumes that the declarant is qualified as a witness {'post,
§ 1424) ; but it still excludes the untested assertion, even though made by
a, qualified person.
§ 1364. History of the Rule. Under the name of the Hearsay rule, then,
will here be understood that rule which prohibits the use of a person's asser-
tion, as equivalent to testimony to the fact asserted, unless the assertor is
brought to testify in court on the stand, where he may be probed and cross-
examined as to the grounds of his assertion and of his qualifications to make
it. The history of the Hearsay rule, as a distinct and living idea, begins
only in the 1500s, and it does not gain a complete development and final
precision until the early 1700s. Before tracing its history, however, from
the time of what may be considered its legal birth, it will be necessary to
examine a few salient features of the preceding century, in order to under-
stand the conditions amid which it book its origin.
One distinction, though, must be noticed even before this preliminary
survey, — the distinction between requiring an extrajudicial speaker to be
called to the stand to testify, and requiring one who is already on the stand
to speak from personal knowledge {ante, § 1361, par. 1). The latter require-
ment had long ago been known in the early modes of trial preceding the jury.
In the days when proof by compurgation of oath-helpers lived as a separate
mode alongside of proof by deed-witnesses and other transaction-witnesses,
" the witness was markedly discriminated from the oath-helper ; the mark of
the witness is knowledge, acquaintance with the fact in issue, and moreover,
knowledge resting on his own observation." ^ Such a witness' distinctive func-
tion was to speak de visit, suo et auditu? The principle was not fully carried
^ Judicial opinions illustrating this use of II, 397 ; 1902, Schroder, Lehibuch der dent-
the term will be found ante, § 657. schen Rechtsgeschiohte, 4th ed. 772.
^ 1892, Bruuner, Deutsche Kechtsgeschichte, * 1898, Thayer, PreUminary Treatise on Evi-
dence, 18, 499.
1680
§§ 1360-1366] GENEEAL THEOET. § 1364
out ; for a deed-witness need not have actually seen it executed, and might
merely have promised by attestation to appear and vouch in court.^ But at
any rate this principle, so far as it prevailed, concerned a different mode of trial,
" trial by witnesses," which jury-trial supplanted.* Afterwards, nearly three
centuries later, when jury-trial itself had changed, and witnesses (now in the
modern sense) became once more a chief source of proof, the old idea re-
appeared and was prescribed for them ; the' witness would speak to " what
hath fallen under his senses," ^ and this became in the modern law a funda-
mental principle.^ But at the time now to be considered, when jury-trial
was coming in (say the 1300s), that principle belonged in what was practi-
cally another mode of trial, and did not affect the development.
What we are here concerned with is a different notion, namely, that when
a specific person, not as yet in court, is reported to have made assertions
about a fact, that person must be called to the stand, or his assertion will not
be taken as evidence. That is to say : suppose that A, who does not profess
to know anything about a robbery, is offered to prove that B, who did profess
to know, has asserted the circumstances of the robbery ; here B's assertion is
not to be credited or received as testimony, however much he may know,
unless B is called and deposes on the stand. As to the history of this
simple but fundamental notion, — the Hearsay rule proper, — it is necessary
at the outset to notice briefly certain important conditions which prevailed
at the beginning of the 1500s.
(a) And, first, it is clear that there was, ixp to about that time, no appre-
ciation at all of the necessity of calling a person to the stand as a witness in
order to utilize his knowledge for the jury. On the contrary, the leading
conditions and influences of jury-trial permitted and condoned the practice of
the jury's obtaining information by consulting informed persons not called
into court :
1872, Professor Heinrich Brunner, The Origin of Jury Courts, 427, 452 : " We may not
interpret the verdict ' ex scientia,' in the domain of English law as a verdict based on per-
sonal perception. The jurors of the assize were certainly entitled to give a verdict based
on the communications of trustworthy neighbors. Glanvill makes it requisite, for the
jurors' knowledge, ' that they should have knowledge from their own view and hearing of
the matter or through the words of their fathers and through such words of persons whom
they are bound to trust as worthy.' Thus they exhibit really in their verdict the prevaUi
ing conviction of the community upon the matter in question. For ascertaining this,
ample opportunity is furnished by the ' view ' and by the period of time elapsing between
the view and the swearing in court. If their verdict agreed with the opinion throughout
the community, they had nothing to fear from an attaint. . . . Thus the juror of the
English law who gives a verdict ex scientia (with reference to the view of lands had) is a
' Thayer, ubi supra, 98 ; and cases cited the earlier trait survived, as the history of the
ante, § 1292. A good additional illustration parol-e.vidence rule indicates (post, § 2426).
occurs in Seld. Soc, Select Civ. PI., I, No. 76 ; * Thayer, ubi supra, 17, 500 ; Brunner,
and as late as 1543, in Eolfe v. Hampden, Dyer Entstehung der Schwurgerichte, quoted infra.
53 b, a survival of this is seen in the case of two • 1670, Vaughan, 0. J., in Bushel's Trial,
will- witnesses who " deposed upon the report of 6 How. St. Tr. 999, 1003 ; 1696, Holt, C. J., in
others." This was probably because such wit- Charnock's Trial, 12 id. 1454.
nesses were originally transaction-witnesses, not * -Cases cited ante, § 657.
document-witnesses, and in their latter character
1681
§ 1364 HEAESAT EULE. [Chap. XLIII
' knowledge-witness ' simply, whether his knowledge rests on his own perceptions or on
another's communieation. . . . The English knowledge-witness [juror] is not an eye-
witness, not a testis de scientia in the sense of the later Norman law." '
1895, Sir F. Pollock and Professor F. W. Maitland, History of the English Law, II,
622, 625 : " Some of the verdicts that are given must be founded on hearsay and floating
tradition. Indeed, it is the duty of the jurors, so soon as they have been summoned, to
make inquiries about the facts of which they will have to speak when they come before
the court. They must collect testimony. ... At the least a fortnight had been given to
them in which to ' certify themselves ' of the facts. We know of no rule of law which
prevented them from listening during this interval to the tale of the litigants. . . . Sepa-
ratively or collectively, in court or out of com-t, they have listened to somebody's story
and believed it."
The ordinary witness, as we to-day conceive him, coming into court and
publicly informing the jury, was (it must be remembered) in the 1400s a rare
figure, just beginning to be known.* Of persons thus called, the chief kinds
were the preappointed ones, — deed-witnesses and other transaction-witnesses ;
and even these, with the jury, " all went out and conferred privately as if
composing one body ; the witnesses did not regularly testify in open court." ^
Even where facts were involved which, as we should think, needed other
testimony, the counsel stated them by allegation, and a special witness might
or might not be present to sustain the allegations.^" Well into the 1400s
"it was regarded as the right of the parties to 'inform' the jury after they
were impanelled and before the trial." ^' In 1450 it is said by Chief Justice
Fortescue, " If the jurors come to a man where he lives, in the country, to
have knowledge of the truth of the matter, and he informs them, it is justi-
fiable," ^^ i. e. it is not the offence of maintenance.^^ Note that the only objec-
tion thought of is that of maintenance. In 1499 a juror, in a certain trial
where a thunderstorm had caused a separation without leave, talked with a
friend of one of the parties, and this, from the same point of view, was held
not unlawful.^* Such practices of obtaining information from informed per-
sons not called were a chief reliance for the early jury. In fact, the strict
notions then prevailing as to the offence of maintenance tended to discourage
' Professor Brunner goes on to point out ' Thayer, ubi supra, 97, 102 ; this continued
(p. 453 If.) that since in France the judicial use probably into the 1500s.
of "trial by witnesses" proper came early into i" Thayer, ubi supra, 121, 133.
prominence (in the 13003 and 1400s) through ^^ Thayer, vii supra, 92 ; in Palgrave's
the civil or canonical system, and since the con- " The Merchant and the Friar," there cited, an
trast between these two competing methods led account of a trial for robbery in London in 1303
the former to be called testes de scientia, and the represents the sheriff as saying, when asked by
jurors merely testes de credentia, the jury system the judge whether the jury is ready : " The least
became discredited as an inferior one and ulti- informed of them has taken great pains to go
mately fell into disuse. In other words, the up and down in every hole and corner of West-
lack of any sharp discrimination in England as minster — they and their wives — and to learn
to the sources of the jury's "knowledge" was all they could concerning his past and present
the marked feature which enabled it to survive, life and conversation."
in contrast to the fate of its kindred institution i' Y. B. 28 H. VI, 6, 1 ; cit. Thayer, 128 ;
in Normandy, where circumstances had led to sec also the petition quoted ib. 125.
the emphasizing of its inferior sources of knowl- "■' Again, in 1504 (Y. B. 20 H. VII, 11, 21 ;
edge. Compare also Glasson, Histoire du droit cit. Thayer, 129), Rede, J., says: " If the jury
et des institutions de la France, VI, 544 (1895). come to my house to be informed of the truth,
' J^'ote 20, infra, and I inform them, that is not maintenance."
" Y. B. 14 H. VII, 29, 4 ; cit. Thayer, 132.
1682
§§ 1360-1366] HISTOEY OF THE EULE. § 1364
the coming of witnesses. In the 1400s "it was by no means freely done" ;i^
and when, in 1562-63,^^ compulsory process for ordinary witnesses was first
provided, the measure came rather as a protection for the witness against the
charge of maintenance than for any other reason.^'' In short, as late as
through the 1400s, there was not only no feeling of necessity for having
every informant come to testify publicly in court, but there was still a dis-
couragement of such a general process ; and the jury might and did get a
great deal of its knowledge by express inquiry from specific persons not
called, or by the counsel's report of what had been or would be said by per-
sons not called or not put on the stand.
(6) But in the meantime certain conditions were changing in a significant
respect. Contrasting the end of the 1400s and the beginning of the 1600s,
it appears, as the marked feature, that the proportion between the quantity
of information obtained from ordinary witnesses produced in court and of
information by the jury itself contributed or obtained was in effect reversed.
The former element, in the 1400s, was " but little considered and of small
importance";^* but by the early 1600s the jury's function as judges of fact,
who depended largely on other persons' testimony presented to them in
court, had become a prominent one, perhaps a chief one.^® It is necessary to
appreciate that the ordinary witness (as we conceive him) did not come to be
a common feature of jury trials till the very end of the 14008.^* Thus during
the 1500s the community was for the first time dealing with a situation in
which the jury depended largely, habitually, and increasingly, for their sources
of information, upon testimonies offered to them in court at the trial.
(c) This, then, is the reason why another notion (a marked feature of the
1500s and early 1600s) should come into particular prominence at that epoch
and not before. During that period much is found to be said, in the trials,
about the number of witnesses, their sufficiency in quantity and quality.
Juries were just beginning to depend for their verdict upon what was laid
before them at the trial, and it was thus natural enough that they should
begin to ask themselves, and to be urged by counsel to consider, whether they
had been furnished with sufficient material for a right decision. Much be-
gins to be thought and said, in statutes and otherwise, about having witnesses
" good and lawful," " good and pregnant," " good and sufficient." ^^ There was,
moreover, already in existence at that time, well known to a large proportion
of the legal profession, and only waiting for a chance to be imported and
1' Thayer, ubi supra, 130. 1600s, Coke says (3 Inst. 163) that " most eoni-
1' St. 5 Eliz. e. 9, § 6. monly juries are led by deposition of witnesses."
^■f The liistory of compulsory proces.s is exam- Another indication is seen in the practical disuse
ined post, § 2190. of the attaint by the end of the 1500s (Thayer,
"•' Thayer, ubi supra, 130. ubi supra, 138, 150, 153, 167), due largely to
1' For example, in 1499, Vavasour, J., says : the fact that the jury now depended so much
"Suppose no evidence is given on either side, upon testimony in court,
and the parties do not wish to give any, yet the ^^ Thayer, ubi supra, 102, 121, 122, 126.
jury shall give their verdict for one side or the ^^ In other respects, also, this was a time
other ; and so the evidence is not material to significant of a desire to see to the sufficiency of
help or harm the matter" (Y. B. 14 H. VII, theevidence placed before a jury ; see Thayer,
29, 4, cit. Thayer, 133) ; while in the early ubi supra, 179, 180, 430.
1683
§ 1364 HEARSAY EULE. [Chap. XLIII
adopted, a mass of rules in the civil and canon law about the number of wit-
nesses necessary in given cases, and the circumstances sufficient to complement
and corroborate testimony deficient in numljer. Throughout the State trials
of the 1500s and early 1600s, the accused is found insisting that one witness
to each material fact is not enough."^^ j^ gpi^^ of these repeated appeals to
the numerical system of the civil law, they produced no permanent impres-
sion in the shape of specific rules, except in treason and perjury .^^ But the
general notion thoroughly permeated the times, and barely escaped being
incorporated in the jury system. In a particular respect it left an impression
material to the present inquiry. There had hitherto been no prejudice against
the jury's utilizing information from persons not produced. But now that
their verdict depended so much on what was laid before them at the trial,
and now that the sufficiency of this evidence, in quantity and quality, began
to be canvassed, it came to be asked whether a hearsay thus laid before them
would suffice. It was asked, for example, whether, if there was one witness
testifying in court from personal knowledge and another's hearsay statement
offered, the two together would suffice.^ Again, it was discussed in Queen
Mary's reign (1553), whether, of the two accusers required in treason, one
could testify by reporting a hearsay.^ In Ealeigh's trial (1603), Chief Justice
Popham, refusing to produce Cobham to testify, explained that, " where no
circumstances do concur to make a matter probable, then an accuser may be
heard [in court, and not merely by extrajudicial statement] ; but so many
circumstances agreeing and confirming the accusation in this case, the accuser
is not to be produced " ; ^^ that is, a hearsay statement was sufficient if other-
wise corroborated. So, too, the notion that persisted in the 1600s, that a
hearsay statement, though not alone sufficient, was nevertheless usable in
" A single example must suflSce ; in Lord '" 1553, R. ». Thomas, Dyer 99 6 ("It was
Strafford's Trial (1640), 3 How. St. Tr. 1427, there holden for law, that of two accusers, if one
1445, 1450, he argues: " He is but one witness, be an accuser of his own knowledge, or of his
and in law can prove nothing " ; such ' ' there- own hearing, and he relate it to another, the
fore could not make faith in matter of debt, other may well be an accuser") ; 1556, Dyer,
much less in matter of life and death." 134 a, note (under the treason statute requiring
'^ The treason-statutes, coming in 1547- two accusers, "an accusation under the hands
1554, will be noted later. The history of the of the accusers or testified by others is suiR-
numerical system, aud of its failure to obtain a eient ") ; 1628, Coke, 3d Inst. 25 ( " The strange
feotliold in our law, is examined post, § 2032. conceit in 2 Mar. [Thomas's Case], that one may
^* 1541, Rolfe 0. Hampden, Dyer 53 i (of be an accuser by hearsay, was utterly denied by
three witnesses to a will, " two deposed upon the justices in Lord Lumley's Case [1572],"
the report of others, and the third deposed " reported by the lord Dier under his own hand,
of his own knowledge," and there was no ap- which we have seen, but [is] left out of the
parent objection, "though the jury paid lit- print"); approved by Hale, Pleas of the Crown
tie regard to the testimony aforesaid ") ; 1622, (1680), I, 306, II, 287.
Adams v. Canon, Dyer 53 J, note (disbHraement This notion of quantity, as associated with
ofmoney forP. ; of two witnesses, one "deposed hearsay, is seen also in certain coeval rules on
that he himself knew it to be true, and being the Continent, declaring (for example) one wit-
examiiied why he would swear that, answered, ness upon personal knowledge to be equal to
' because his father had said so ' ; and in this two or three going upon hearsay (Fertile, Storia
case much was said about the deposition of wit- del diritto italiano, 2d ed., 1900, vol. VI, pt. 1,
nesses ; first, that if one witness depose of his p. 388 ; Esmein, Histoire de la procedure crimi-
own knowledge of the very point in question, nelle en France, 1882, pp. 269, 369).
and the other in the circumstances, that shall be ^' As reported in Jardine's Criminal Trials,
sufficient ground for the judge to pass sentence " ; I, 427.
here the "circumstances" means the hearsay
statement, as shown by Pyke v. Crouch, infra).
1684
§§ 1360-1366] HISTORY OF THE RULE. § 1364
confirmation of other testimony,"'^^ was a direct survival of this treatment of
hearsay from the standpoint of numerical sufficiency. During the 1500s
nothing was settled in this direction; the matter was being debated and
doubted. But the important feature is that the doubt about using hearsay
statements — i. e. testimony from persons not called — was merely incidental
to a general canvassing of the numerical and qualitative sufficiency of testi-
mony, which in turn was a novelty arising from the jury-conditions of the
1500s.
It appears, then, that at the entrance to the 1500s (a) there had hitherto
been no conception of a special necessity for calling to the stand persons
to whose assertions credit was to be given ; (&) that by the 15003 the increas-
ing dependence of the jury on the evidence laid before them in court (as
distinguished from their other sources of information) gave a new importance
to such evidential material ; and (c) that there was thus much debate as to
the sufficiency of witnesses in number and kind, and that incidentally doubt
began to be thrown on the propriety of depending on extrajudicial asser-
tions, either alone or as confirming other testimony given in court.
With this preliminary survey, the process may now be traced of making
more precise and comprehensive the general notion against hearsay which
thus sprung into consciousness. It will be convenient to consider, first,
hearsay statements in general, and, next, hearsay statements under oath ; for
the rule as it affected the latter had both an earlier origin and a slower
development.
I. Hearsay statements in general. (1) In the first place, then, there is no
exclusion of hearsay statements. Through the 1500s and down beyond the
middle of the 1600s, hearsay statements are constantly received, even against
opposition.^ They are often objected to by accused persons, and are some-
^^ Infra, note 33. " He adds what Sir Thomas Ailsbury's man said.
^' 1571, Duke of Norfollt's Trial, 1 How. St. ... But why doth he rest upon a hearsay of Sir
Tr. 958, Jardine's Ciim. Trials, I, 157, 158, 159, Thomas Ailsbury's man? Why was not this
179, 201, 206, 210 (various letters and other man examined to make out the proof?"), 391
hearsay statements are used against the accused) ; (argued for defendant : "Of all which there is
1590, Stranham v. Cullington, Ore. Eliz. 228 no proof but a bare relation what Mr. H., Mr. I.,
(prohibition for suing for tithes; "they said and Sir W. B. said; which is all hearsay and
that hearsay shall be allowed for a proof ") ; 1601, makes no evidence, unless they were present to
Webb V. Petts, Noy 44 (" the witnesses said that witness what was said [by me to them] "), 395
for a long time, as they had heard say, the occu- (argued for defendant : " This is but Sir E. P.'s
piers . . . had used to pay annually to the par- report, and so no proof, unless he were produced
son 3s."; held that "a proof by hearsay was to justify it"), again at 399,402, 432, 534, 538
good enough to maintain the surmise within the (in all these instances the hearsay statements
statute 2 Ed. 6 ") ; 1622, Adams v. Canon, Dyer are received) ; 1663, Moders' Trial, 6 id. 273,
53 J, note (a hearsay admissible for one witness ; 276 (bigamy; a witness testified that he once
see quotation supra); 1632, Sherfield's Trial, 3 saw the first husband, not produced, "and the
How. St. Tr. 519, 536 (information in the Star man did acknowledge himself to be so " ; the
Chamber against a vestryman of New Sarum for Court: "Hearsays must condemn no man;
breaking a painted glass window ; to show that what do you know of your own knowledge ? "
the Bishop had warned him not to do it, one of but the statement gets in); 1669, Hawkins'
the Court offered a letter from the Bishop, " but Trial, ib. 921, 935 (collateral charge that defend-
this being out of course, and a thing to which ant picked N.'s pocket; N.'s statements to that
the defendant could make no answer, was not effect were given by the witness, in spite of the
approved of ") ; 1640, Earl of Strafford's Trial, defendant's demand that N. be called; Sir
ib. 1381, 1427 (" they prove very little but what Matthew Hale was judge) ; 1670, Style's Prao-
they took upon hearsays ") ; 1644, Archbishop tical Kegister 173 (citing a case of 1646).
Laud's Trial, 4 id. 315, 383 (argued for defendant:
1685
§ 1364
HEAESAY RULE.
[Chap. XLIII
times said by the judge to be of no value or to be insufficient of themselves,
and are even occasionally excluded. In short, they are regarded as more or
less questionable, and the doubt particularly increases in the 1600s; but, in
spite of all, they are admissiole and admitted. Nor is this result due to any
abuse or irregularity peculiar to trials for treason or other State prosecutions ;
it is equally apparent in the rulings in the few civil cases that are reported.
The practice is unmistakable.
(2) In the meantime, the appreciation of the impropriety of using hearsay
statements by persons not called is growing steadily. By the second decade
after the Eestoration, this notion receives a fairly constant enforcement, both
in civil and in criminal cases.^^ There are occasional lapses ; ^ but it is
clear that by general acceptance the rule of exclusion had now become a
part of the law as well as of the practice. There even is found ^^ a counsel
for the prosecution stopping " for example's sake " its violation by his own
witness. No precise date or ruling stands out as decisive ; but it seems to
be between 1675 and 1690 that the fixing of the doctrine takes place.^^
*' It is worth noting that the not uncommon
belief whiuh attributes most of the reforms in
the rules of evidence in criminal trials to the
Commonwealth of 1649 or the Revolution of
1688 is hardly well founded. In the present
case, for example, the new idea comes in with
the Eestoration regime, 1660-1685 ; and this is
generally true of the other matters of improve-
ment (as noted post, §§ 2032, 2250). The Com-
monwealth went on with very much the same
practices as the royal government which it over-
threw ; witness the argument (infra) of Mr.
Prynne, who was one of the most vigorous oppo-
nents of Charles I. At the Restoration, much
wai-ning seems to have been taken, and it is
then that the decided amelioration is apparent ;
the trials of the Regicides, for instance, were
(contrary to the general impression) almost
models of fairness, considering the prior practice.
What was left to be done was done under Anne,
after 1700, rather than under William. Even
Scroggs, in 1678, did not much violate existing
rules ; and the real abuses and irregularities oc-
curred chiefly in the terrible times of unrest and
mutual suspicion, just before and after the Duke
of York's accession, and at the hands of the un-
scrupulous Jefferies, whose faults were chiefly
his own and abnormal. Compare the similar
opinion of Professor Willis-Bund, State Trials
for Treason, 1882, vol. II, Introd. xx.
»<• Kg. in the C3.ses infra oflSSO, 1681, 1682,
1686.
'1 E. g. in Colledge's Trial, infra.
2' 1673, Pickering v. Barkley, Vin. Abr.
"Evidence," P, b, 1, vol. XII, 175 (to show
the mercantile usage construing a policy, " a cer-
tificate of merchants " was read in court ; but
"the Court desired to have the master of the
Trinity-house and other sufficient merchants to
be brought into court to satisfy the Court viva
voce"); 1676, Rutter v. Hebden, 1 Keb. 764
(objected that a contradictory statement of a
witness could not be proved because not made
on oath ; but allowed) ; 1678, Bishop Burnet on
1686
the Popish Plot, 6 How. St. Tr. 1406, 1422,
1427 (refers to a part of Dugdale's testimony as
"only upon hearsay from Evers, and so was
nothing in the law ") ; 1678, Earl of Pembroke's
Trial, ib. 1309, 1325, 1336 (a deceased person's
statements as to persons injuring him, received ;
one of the statements was offered as a death-bed
declaration; and counsel adds, " there are little
circumstances which are always allowed for evi-
dence in such cases, — where men receive any
wounds, to ask them questions while they are
ill, about it, who hurt them") ; 1678, Ireland's
Trial, 7 id. 79, 105 (the defendant, to prove an
alibi at St. Omer's college in France, ottered to
bring "an authentic writing" " under the seal
of the college and testified by all in the college,
that he was there all the while " ; Atkins, J. :
"Such evidences as you speak of we would not
allow against you ; therefore we would not allow
It for you " ; afterwards, raembera of the college
were produced in person) ; 1679, Samson v.
Yardley, 2 Keb. 223 (appeal of murder ; what a
witness, now dead, swore on the indictment was
excluded; "what the witness dead had said
generally, being but hearsay of a stranger, and
not of a party [iu] interest, they would not ad-
mit, which might be true or false ") ; 1680,
Anderson's Trial, 7 How. St. Tr. 811, 865
(charge of being a priest and saying mass at the
V enetian ambassador's ; a letter of the ambassa-
dor, then out of the kingdom, denying his say-
ing of mass, not admitted for the defendant) ;
1680, Gascoigne's Trial, ib. 959, 1019 (one Bar-
low being offered as a witnes-s, but being appar-
ently afraid to speak, one Ravenscroft offered to
tell what Barlow had told him the night before ;
Pemberton, J. : " You must not come to tell a
story out of another man's mouth " ; yet after
some objection he was allowed to tell the whole
story) ; 1681, Plunket's Trial, 8 id. 447, 458
(other persons' statements of defendant's acts,
admitted without objection), 461 (Witness :
"Mr. L. B. told me that he did hear of the
French — "; Pemberton, L. C. J.:
§§ 1360-1366]
HISTOEY OF THE RULE.
1364
(3) At the same time, and along with this general rule of exclusion, there
is still a doctrine, clearly recognized, that a hearsay statement may be used
as confirmatory or corroboratory of other testimony.^ Here we have the
survival of that notion about sufficiency and quantity, already referred to.
A hearsay statement, by itself, is insufficient as the sole foundation for a
conclusion ; by itself it " can condemn no man," and so, by itself, it is ex-
cluded ; but, when it merely supplements other good evidence already in, it
is receivable. This limited doctrine as to using it in corroboration survived
for a long time in a still more limited shape, i. e. in the rule that a witness's
own prior consistent statements could be used in corroboration of his testi-
mony on the stand ; '^ and the latter was probably accepted as late as the
end of the ITOOs.^^
what you know yourself") ; 1681, Busby's Trial,
ib. 525, 545 (witness offers an affidavit of a
register of births ; Street, B. : - " You ought
to have brought the man along with you to
testify it"; Witness: "The sexton is an
old man about 60 years of age and could not
come"; Street, B. : "That does not signify
anything at all ") ; 1681, Colledge's Ti-ial,
ib. 549, 603 (seditious publication ; the Attorney-
General himself stops a prosecution-witness who
tells what the printer said as to the author), 628
(another counsel for the prosecution does the
same ; "we must not permit this for example's
sake, to tell what others said"), 6B3 (counsel
for prosecution : " You must not teU a tale of a
tale of what you heard one say") ; 1682, Lord
Grey's Trial, 9 id. 127, 136 (hearsay statements
plentifully received without objection) ; 1684,
Hampden's Trial, ib. 1053, 1094 (hearsay state-
ments exclnded ; Jefferies, L. C. J. : " You
know the law ; why should you offer any such
thing?"); 1684, Braddon's Trial, ib. 1127,
1181, 1189 (Mr. J. Withins: "We must not
hear what another said that is no party to
this cause"); 1686, Lord Delamere's 'Trial, 11
id. 509, 548 (hearsay statements put in without
check) ; 1692, Stainer v. Droitwich, 1 Salk. 281
(an exception to the hearsay rule discussed as
such) ; 1693, Thompson v. Trevanion, Holt 286,
Skinner 402 (a hearsay statement, received ap-
parently as an exception) ; 1696, Charnock's
Trial, 12 How. St. Tr. 1377, 1454 (Holt, L. C.
J., allndes to the objection as well founded, and
informs the jury when charging them : "There-
fore 1 did omit repeating [to you] a great part
of what D. said, because as to him it was for the
most part hearsay ") ; 1697, Pyke v. Crouch, 1
Ld. Eaym. 730 (if a testator sends a duplicate
of Ms will to a stranger " and the stranger sends
back a letter" mentioning its receipt, "after
the death of the stranger such letter may be
read as circumstantial evidence" to prove that
such a duplicate wa.q sent).
33 1679, Knox's Trial, 7 How. St. Tr. 763,
790 (the witness's former statement offered ;
L. C. J. Scroggs : " The use you make of this is
no more but only to corroborate what he hath
said, that he told it him while it was fresh and
that it is no new matter of his invention now ") ;
1683, Lord Russell's Trial, 9 id. 577, 613
1687
(L. C. J. Pemberton : " The giving evidence by
hearsay will not be evidence " ; Attorney-
General : " It is not evidence to convict a man
if there were not plain evidence before ; but it
plainly confirms what the other swears ") ; 1692,
Cole's Trial, 12 id. 876 (Mrs. Milward : "My
lord, my husband [now deceased] declared to me
that he and Mr. Cole were in the coach with
Dr. Clenche, and that they two killed Dr.
Clenche " ; Mr. J. Dolben : " That is no evi-
dence at all, what your hxisband told you ; that
won't be good evidence, if you don't know
somewhat of your own knowledge " ; Mrs. Mil-
ward : "My lord, I have a great deal more that
my husband told me to declare " ; Mr. J. Dol-
ben : "That won't do; what if your husband
had told you that I killed Dr. Clenche, what
then ? This will stand for no evidence in law ;
we ought by the law to have no man called in
question but upon very good grounds, and good
evidence upon oath, and that upon the verdict
of twelve good men." Nevertheless, he let her
relate more of what her husband told her about
the plot to kill Dr. Clenche ; in charging the
jury, he referred to it as " no evidence in law . . .
especially when it is single, without any circum-
stance to confirm it ") ; 1725, Braddon, Obser-
vations on the Earl of Essex' Murder, 9 How.
St. Tr. 1229, 1272 (" It is true, no man ought
to suffer barely upon hearsay evidence ; but such
testimony hath been used to corroborate what
else may be sworn ").
3* 1682, Lutterell v. Keynell, 1 Mod. 282 (it
wa^ proved that one of the witnesses for the
plaintiff had often " declared the same things "
as now ; and L. C. B. Bridgman " said, though
a hearsay was not to be allowed as direct evi-
dence, yet it might be made use of to this pur-
pose, viz. to prove that W. M. was constant to
himself, whereby his testimony was corrobo-
rated"); ante 1726, Gilbert, Evidence, 149 (" A
mere hearsay is no evidence ; . . . but though
hearsay be not allowed as direct evidence, yet
it may be in corroboration of a witness' testi-
mony, to show that he affirmed the same thing
before on other occasions ; ... for such evi-
dence is only in support of the witness that gives
in his testimony upon oath").
3» 1767, Buller, Trials at Nisi Prius, 294 ;
and cases cited ante, § 1123.
§ 1364 HEAKSAY RULE. [Chap. XLIII
(4) In the meantime, the general rule excluding hearsay statements comes
over into the 1700s as something established within living memory. It is
clear that its firm fixing (as above observed) did not occur till about 1680 ;
and so in the treatises of the early 1700s the rule is stated with a prefatory
"It seems." ^^ By the middle of the 1700s the rule is no longer to be
struggled against ; ^^ and henceforth the only question can be how far there
are to be specific exceptions to it.
What is further noticeable is that in these utterances of the early 1700s
the reason is clearly put forward why there should be this distinction between
statements made out of court and statements made on the stand ; the reason
is that " the other side hath no opportunity of a cross-examination." This
reason receives peculiar emphasis in the final and comprehensive applica-
tion of the rule to a peculiar class of statements made prior to the trial
in hand, namely, statements made under oath. These come now to be
considered.
II. Hearsay statements under oath. (1) As early as the middle of the
1500s a first step had been attempted towards requiring the personal pro-
duction of those who had already made a statement upon oath. This
requirement was limited to trials for treason ; and the circumstances lead-
ing up to its introduction are described in the following passage :
1696, Bishop Burnet, arguing in the House of Lords, at Fenwick's Trial, 13 How. St.
Tr. 5-37, 752 : " There passed many attainders in that reign [of H. VIII], only upon de-
positions that were read in both houses of parliament. It is true, these were much blamed,
and there was great cause for it. . . . In Edward Vl's trial, the lord Seymour was attainted
in the same manner [sc. without being heard], only with this difference, that the witnesses
were brought to the bar and there examined, whereas formerly they proceeded upon some
depositions that were read to them. At the duke of Somerset's trial [in 1.551], which was
both for high treason and for felony, in which he was acquitted of the treason but found
guilty of the felony, depositions were only read against him, but the witnesses were not
brought face to face, as he pressed they might be.'' Upon which it was that the follow-
ing parliament enacted that the accusers (that is, the witnesses) should be examined face
to face, if they were alive." ''
The statute of 1553, thus referred to as first requiring the witness's pro-
'^ 1716, Hawkins, Pleas of the Crown, II, speak viva voce"); 1716, E.irl of Wintouu's
596, b. II, c. 46, § 44 ("As to the Fifth Point, Trial, 15 How. St. Tr. 804, 856 ; 172.3, Bishop
viz. of parol evidence, and how far hearsay shall Atterbury's Trial, 16 id. 323,-455 ; 1725, L. C.
be admitted. It seems agreed that what a. Macclesfield's Trial, ib. 767, 1137 ; 1743, Craig
stranger has been heard to say is in strictness dem. Annesley v. Anglesea, 17 id. 1160 (a state-
no manner of evidence either for or against a ment of Mrs. P., deceased, as to a material fact
prisoner, not only because it is not upon oath, was offered ; after some debate, the Court ex-
hut also because the other side hath no oppor- eluded it "on the principal reason that hearsay
tunity of a cross-examination ") ; 1736, Bacon, evidence ought not to be admitted, because of
Abridgment, Evidence, (K) ("It seems agreed the adverse party's having no opportunity of
that what another has been heard to say is no cross-examining ") ; 1754, Canning's Trial, 19
evidence, because the party was not on oath ; id. 383, 406 (rule undisputed),
also, because the party who is affected thereby '* This may be seen in the duke's trial, in
had not an opportunity of cross-examining "). 1 How. St. Ti-. 520.
" 1701, Captain Kidd's Ti'ial, 14 How. St. ^' Substantially the same account as Bishop
Tr. 147, 177 (Witness: " Here is a certificate Burnet's is given in Rastal's Statutes (?), I, 102,
[of my reputation] from the parish where I was as quoted in a note to the Duke of Somerset's
born;" L. C. B. Ward: "That will signify Trial, 1 How. St. Tr. 520 ; but no edition of any
nothing ; we cannot read certificates ; they must of Rastal's books seems to contain such a passage.
1688
§§ 1360-1366]
HISTORY OF THE RULE.
§ 1364
duction on the trial, was St. 5 Edw. VI, c. 12, § 22.« This was followed by
a similar provision in 1554, St. 1 & 2 P. & M. c. 10, § ll.*i But this early-
step was premature ; the innovation was too much in advance of the times ;
and it had only a short life. From the very year of the latter enactment,
until the end of the succeeding century, it remained by judicial construction
a dead letter. The means by which this result was reached was another
section (§ 7) in the act of Philip and Mary, providing that trials for treason
should be conducted " according to the common law," i. e. without any re-
quirement of two witnesses or of producing witnesses; so that since the
requirement of § 11 applied only to trials for the treasons defined by that
very statute, the Crown, by bringing prosecutions on other definitions of
treason (common law or statutory), was free from any such requirement.*^
This judicial construction was perhaps strained, and was abandoned after
the Revolution and under William Ill's government. Nevertheless it was
clear law for a century and a half ; and, when Sir Walter Raleigh insisted so
urgently on the production of Lord Cobham, he was truly answered by Chief
Justice Popham that " he had no law for it." *^
Thus this limited attempt to require personal production, instead of ex parte
depositions by absent persons, perished at its very birth. So far as this statu-
tory attempt at the beginnings of a hearsay rule is concerned, it played no
40 "Which said accusers at the time of the
arraignment of the party accused, if they be then
living, shall be brought in person before the
party so accused, and avow and maintain that
which they have to say to prove him guilty,"
unless he confesses.
*^ Upon arraignment for treason, the persons
" or two of them at the lea.st," who shall declare
anything against the accused " shall, if they be
then living and within the realm, be brought
forth in person before the party arraigned if he
require the same, and object and say openly in
his hearing what they or any of them can against
him."
*2 1554, Throckmorton's Trial, 1 How. St.
Tr. 862, 873, 880, 883 (the defendant in vain
invoked the treason-statute) ; 1571, Duke of
Norfolk's Trial, ib. 958, 978, 992 (by the prose-
cuting Serjeant : " the law was so for a time, in
some cases of treason, but since the law hath
been found too hard and dangerous for the
prince, and it hath been repealed ") ; 1586,
Abington's Trial, ib. 1142, 1148 ("You stand
indicted by the common law and the statute of
25 Edw. Ill . . . and in that statute is not
contained any such proof") ; 1603, Raleigh's
Trial, 2 id. 16, 18 ; Jardine's Cr. Tr., I, 418,
420 (Popham, C. J. "Sir Walter Raleigh, for
the statutes you have named, none oC them help
you. The statutes of the 6th and 6th of Edward
VI and of the 1st Edward VI are general ; but
they were found to be inconvenient and are
therefore repealed by the 1st and 2d of Philip
and Mary, which you have mentioned, which
statute goes only to the treasons therein com-
prised, and also appoints the trial of treasons
to be as before it was at the common law ") ;
1649, Lilburne's Trial, 4 How. St. Tr. 1269,
1401 (same rule). Compare the decisions by
which the same result was reached for the re-
quirement of two witnesses (post-, § 2032). There
was another similar statute about the same time,
but it apparently was ineffective for the same
reason : 1558, St. 1 Eliz. c. 1, § 27 (no person
to be convicted of ecclesiastical offences or trea-
son under this act — against heresy and foreign
church authority — unless the two required
witnesses, or such as are living and within the
realm, "shall be brought forth in person face
to face before the party so arraigned, and there
shall testify and declare what they can say
against the party so arraigued, if he require the
same").
*' The learned Mr. Jardine, in his Criminal
Trials, I, 514, has vinditiated this trial against
the unjust criticisms of later times : " This doc-
trine and practice [of 1690 and later], however,
though directly the reverse of those which pre-
ceded them, were not founded upon any legisla-
tive provision or any recorded decision of the
Courts. But at the period of Raleigh's trial,
there was, perhaps, no point of law more com-
pletely settled, than that the statute of the 1 & 2
Philip and Mary, c. 10, had repealed the pro-
visions of the statute of the 5th of Edward VI,
respecting the production of two witnes.ses in
cases of treason. ... If, therefore, the Judges
who presided on Raleigh's trial were to abide by
the solemn and repeated decisions of their prede-
cessors, and the uniform practice of the Courts
of law for centuries, they could do no otherwise,
consistently with their duty, than decide as
they did."
1689
§ 1364 HEARSAY RULE. [Chap. XLIII
further part at all; except perhaps as furnishing a moral support for the
opinion which was already working towards a general hearsay rule.
(2) That at this time, then (say, until the early 1600s), the general absence
of any hearsay rule (as already noted) allowed equally the use of this specific
class, namely, extrajudicial statements taken under oath, is clear enough. It
appears as well in ordinary felony trials ^ as in treason trials.**
(3) It had, of course, always been usual (though, as just seen, not essen-
tial) to have the deponent present at the trial ; but in such cases the general
practice in State trials seems to have been, first to read aloud his sworn state-
ment to the jury, and then to have him confirm it by declaring that it was
" willingly and voluntarily confessed without menace or torture or offer of
torture."*^ This went on till well into the 1600s. The sworn statement
was still the main or the sufficient thing ; but it was thought proper to have
it openly adopted by the witness, so as to show that the prosecution did not
fear a recantation. Thus the emphasis came gradually to be transferred from
the sworn statement, as the sufficient testimony, to the statement on the trial
as the essential thing.
(4) About this time, however, and markedly by the middle of the 1600s
(coincidently with the general movement already considered), the notion tends
to prevail, and gradually becomes definitely fixed, that even an extrajudicial
statement under oath should not be used if the deponent can be personally
had in court. This much has now been gained ; and it is seen in civil and
in criminal trials equally.*' His statement can still be used, though, if he
** 1615, Weston's Trial, 2 How. St. Tr. 911, Compare the cases cited ante, § 818, under Con-
924 ; 1615, Ehves' Trial, ib. 935, 941. fessions. The following case indicates a growing
*° To the instances of this already cited above, inclination to insist on this viva voce confirma-
coustruing the treason statute, may be added the tion where the original examination was techni-
following : 1571, Duke of Norfolk's Trial, 1 cally defective : 1631, Lord Audley's Trial, 3
How. St. Tr. 958, passim; 1586, Mary Queen How. St. Tr. 401, 402 ("certain examinations
of Scots' Trial, ib. 1162, 1183; 1590, Udall's having been taken by the lords without an oath.
Trial, ib. 1271, 1302 ; Mr. Jardine, in his Grim- it was resolved [by all the judges] those could
inal Trials, I, 514, says : " At the time of not be used until they were repeated upon
Raleigh's trial, most of the circumstances ob- oath ").
jected to by Sir John Hawles [under William *' 'The first suggestioi; of this view seems to
III, about 1696] were strictly legal and justifia- occur in the following cases : 1583, Puckley v.
ble ; for instance, at that time, the depositions Bridges, Choice Cases in Ch. 163, quoted 1
of absent persons were read as the usual course Swanst. 171 (witnesses deceased and beyond
of evidence which had prevailed for centuries in seas ; depositions in the Star Chamber, etc..
State prosecutions ; this mode of proof consti- used) ; 1590, Udall's Trial, 1 How. St. Tr. 1271,
tuted the general rule, and the oral examination 1283 (examination on oath of one T. read, T. be-
of witnesses was the exception, which was in ing beyond seas ; but it does not appear that the
practice sometimes allowed, but was as often re- latter circumstance was essential). In Raleigh's
.fused, and never permitted but by the consent of Trial (1603), 2 id. 16, 18, Raleigh is willing to
the counsel for the prosecution. " He also asserts concede that Lord Cobham's deposition could
(Introd., I, 25) that "the ordinary mode of try- have been used, " where the accused is not to tie
ing persons indicted for murder, robbery, or had conveniently "; yet there it was used, though
theft" forbade the use of depositions; but his Cobham was "alive, and in the House." But
only authority for this statement is Sir Thomas thereafter the precedents indicate a general
Smith's description of a trial, which does not acceptance of the notion stated above ; 1612,
sustain him ; and the citations in the note above Tomlinson v. Croke, 2 Eolle's Abr. 687, pi. 3
seem to disprove his belief. (deposition receivable it the deponent is dead,
*8 The following list is only a selection : not if he is living) ; 1613, Fortescue & Coake's
1586, Babington's Trial, 1 How. St. Tr. 1127, Case, Godb. 193 (depositions in chancery not to
1131 ; 1589, Earl of Arundel's Trial, ib. 1250, be read at law "unless affidavit be made that
1252 ; 1600, Earl of Essex' Trial, ib. 1333, 1344; the witnesses who deposed were dead");
1616, Eari of Somerset's Trial, 2 id. 965, 978. 1629, Anon., ib. 326 ("if the party cannot find
1690
§§ 1360-1366] HISTOEY OF THE EULE. § 1364
cannot be had in person, — for example, because of his death (and there is
much vacillation of opinion as to th^ sufficiency of other causes, such as ab-
sence beyond sea) ; and nothing is as yet said as to the further objection that
the deposition was not taken subject to cross-examination. The significant ■
feature of this stage is the thought that the hearsay statement is usable only
in case of necessity, i. e. the deponent ought to be produced if he can be.
But the thought that in any case there must indispensably have been an
opportunity for cross-examination has not been reached.
(5) By the middle of the 1600s, the orthodox tradition in favor of allow-
ing the use of extrajudicial sworn statements had thus become decidedly
weakened and was on the point of giving way. Nevertheless, there was still
a tradition of orthodoxy ; and this tradition was in harmony with the prac-
tice of influential modes of trial other than trial by jury in the common-law
courts.*^ A fixed rule to the contrary was consciously an innovation ; and
this innovation, though now on the point of prevailing, remained still to be
established and to acquire orthodoxy. From the middle of the century we
see the idea still progressing. The state of opinion is illustrated by one of
the prosecutions conducted by the anti-Stuart party just before it obtained
the upper hand and deposed Charles I :
1643, Col. Fiennes' Trial, 4 How. St. Tr. 185, 214 ; the defendant, tried by court-
martial, argued that " no paper-deposition ought to be allowed by the law, in cases of
life and death, but the witnesses ought to be all present and testify viva voce " : that he
had not had notice of the commission " so that he might cross-examine the witnesses " ;
a witness," then his deposition "in an English When this necessity for the witness' absence
court, In a cause betwixt the same parties," may could be foreseen (as when a deposition de bene
be read) ; 1631, Fitzpatrick's Trial, 3 How. St. was asked for before trial), there are some early
Tr. 419, 421 (a defendant in rape demanded that indications that cross-examination would be a
the lady be " produced face to face ; which she required condition : 1606, Matthews v. Port,
was; who by her oath viva voce satisfied the Comb. 63 ("The witnesses may be examined
audience ") ; 1638, Dawby's Case, Clayt. 62 [prior to trial] before a judge, by leave of the
(admitted, when dead) ; 1645, Lord Macguire's Court, as well in criminal causes as in civil.
Trial, 4 How. St. Tr. 653, 672 (most of the wit- where a sufficient reason appears to the Court,
nesses spoke viva voce ; a deposition was used of as going to sea, etc., and then the other side
one who " was in town but he could not stay "); may cross-examine them ") ; 1662, St. 13 & 14
1658, Mordant's Trial, 5 id. 907, 922 (all sworn Car. II, c. 23, § 5 (in certain insurance claims,
except one, an escaped prisoner, whose deposi- seamen being often the witnesses, an oath de bene
tion was used) ; 1666, Lord Morley's Case, Eel. maybe administered, "timely notice being given
55, 6 How. St. Tr. 770 (depositions before a coro- to the adverse party, and set up in the office be-
ner might be read if the deponent were dead, fore such examination, to the end such witness
or unable to travel, or detained by defendant ; or witnesses may be cross-examined ").
bnt not if unable to be found) ; 1673, Blake v. *' Jnte 1635, Hudson, Treatise of the Star
Page, 1 Keb. 36 (speaks of the affidavit of an Chamber, pt. Ill, § 21, in Hargr. Collect. Jurid.
absent person as allowable, but apparently by 200 ("It is a great imputation to our English
consent only); 1678, Bromwich's Case, 1 Lev. courts that witnesses are privately produced,"
180 (like Lord Morley's Case) ; 1678, Earl of in chancery ; pointing out that the ecelesiasti-
Pembroke's Trial, 6 How. St. Tr. 1309, 1338 (a cal Court does otherwise, and reciting a recent
physician offers his prior deposition before the reform of L. C. Egerton that witnesses should
magistrate; the Court: "You must give it be produced before the opponent, " that the other
again viva voce; we must not read your exam- side might examine him also if they please ") ;
ination before the Court ") ; 1685, Oates' Trial, 1637, Bishop of Lincoln's Trial, 3 How. St. Tr.
10 id. 1227, 1285 (deposition of a witness not 769, 772 (Banks, Attorney-General, arguing in
found after search, excluded) ; 1692, Harrison's the Star Chamber, says: "The proceedings in
Trial, 12 id. 833, 851 (deposition taken by the this court, as in all other courts, is by exam-
coroner in the defendant's absence, read because ination of witnesses returned in parchment, not
the defendant had eloigned the deponent), viva voce").
VOL. II. — 44 1691
§ 1364
HEARSAY RULE.
[Chap. XLIII
then Mr. Prynn, for the prosecution, answered, among other things, that in the civil law
and courts-martial trials were as usual " by testimoniis [i. e. depositions] as by testibus
viva voce; that in the Admiralty, a civil law court, as likewise in the Chancery, Star
Chamber, and English courts formed after the civil law, they proceed usually by way of
deposition ; that even at the common law in some cases, depositions taken before the coro-
ner, and examinations upon oath before the chief justice or other justices, are usually
given in evidence even in capital cases ; that the high Court of Parliament hath upon just
occasions allowed of paper depositions in such cases " ; and the depositions were " upon
solemn debate" admitted.
This case, to be sure, was no precedent for a common-law trial, and it
occurred amidst a bitter political controversy ; but it sufficiently illustrates
the unsettled state of opinion and the tendency of the time.*^ Yet no final
settlement came under the Commonwealth, nor under the Eestoration, nor
directly upon the Revolution.^
(6) By 1680-1690 (as already noted) had come the establishment of the
general rule against unsworn hearsay statements. This must have helped to
emphasize the anomaly of leaving extrajudicial sworn statements unaffected
by the same strict rule. By 1696, or nearly a decade after the Revolution,
that anomaly ceased substantially to exist. A few rulings under the Resto-
ration had foreshadowed this result ; ^^ but in that year it was definitely and
decisively achieved in the trials of Paine and of Sir John Fenwick. The
former was a ruling by the King's Bench after full argument, and came in
*' A reflection of the English rule in this
period is seen in the following colonial records :
1660, Mass. Revised Laws and Liberties, Whit-
move's ed., "Witnesses," § 2 (a witness' testi-
mony may be taken before the magistrate, but,
if the witness lives within ten miles and is not
disabled, it shall not be used " except the wit-
ness be also present to be further examined
about it ; provided also that in capitall cases all
witnesses shall be present, wheresoever they
dwell"; repeated in the Revision of 1672);
1692, Proprietor v. Keith, Pa. Colon. Cas. 117,
124 (affidavits were offered to prove the truth of
a libel ; bnt the Court ' ' were very unwilling to
have them read, saying it was no evidence un-
less the persons were present in court " ; yet
they permitted some to be read, since the wit-
nesses could not be present ' ' by reason of the
extremity of the weather" ). See also Browne's
History of Maryland, 84.
°* Mr. Jardine, in his Criminal Trials, Introd.,
I, 25, 29, says : ' ' The ancient mode of proof by
examinations [under oath of absent persons] con-
tinued to be the usual and regular course [in cases
of treason or other state offences] during the
reigns of Elizabeth, James I, and Charles I.
. . . During the Commonwealth the practice
of reading the depositions of absent witnesses
entirely disappeared, and has never been since
revived. ... It is believed that not a single
instance can be produced of the reading of the
deposition of an absent witness on the trial of a
criminal (except in cases expressly provided for
by statute), since the reign of Charles I." It
would seem that the instances in note i7, supra,
show the practice to have been sanctioned until
after the Revolution ; Mordant's Trial, above
cited, certainly shows that it did not cease dur-
ing the Commonwealth. Mr. Jardine seems to
have had a general but incorrect notion that the
older methods ceased with the Commonwealth ;
for example, that torture did not cease, as he
believes it did, has been noticed ante, § 818.
"'• Ante 1668 (no date or name), Rolle's Abr.,
II, 679, pi. 9 (depositions taken by bankruptcy
commissioners, not admitted, "in a suit in
which comes in question whether he was a
bankrupt or not, or to prove anything depend-
ing on it, for the other party could not cross-
examine the party sworn, that is the common
course ") ; 1669, R. v. Buckworth, 2 Keb. 403
(perjury ; testimony of a deceased witness sworn
at the trial where the perjury was committed,
received ; by two judges to one) ; ante 1680,
Hale, Pleas of the Crown, I, 306 ("The in-
formation upon oath taken before a justice of
the peace " is admissible in felony, if the de-
ponent is unable to travel, yet in treason this
is "not allowable, for the statute requires that
they be produced upon arraignment in the pres-
ence of the prisoner, to the end that he may
cross-examine them ") ; 1688, Thatcher v. Wal-
ler, T. Jones 53 (deposition before the coroner
of one beyond sea, admitted ; but held that a
deposition before a justice of the peace should
not be received ; the case of the coroner standing
on the ground of a record) ; 1694, R. v. Taylor,
Skinner 403 (affidavit not admissible) ; and the
citations at the end of note 47, supra.
1692
§§ 1360-1366]
HISTOEY OF THE RULE.
§ 1364
January .^2 The latter, coming in the next November,^ involved a lengthy
debate in Parliament ; and, though the vote finally favored the admission of
the deposition, the victory of reaction was in appearance only ; for the
weighty and earnest speeches in this debate must have burned into the gen-
eral consciousness the vital importance of the rule securing the right of
cross-examination, and made it impossible thereafter to dispute the domina-
tion of that rule as a permanent element in the law.^ From this time on,
the applicability of the Hearsay rule to sworn statements in general, as well
as to unsworn statements, is not questioned.^" From the beginning of the
1700s the .writers upon the law assume it as a settled doctrine ; ^^ and the
reason of the rule in this connection is stated in the same language already
observed in the history of the rule in general, namely that statements used
as testimony must be made where the maker can be subjected to cross-
examination.^'
(7) There were, however, two sorts of sworn statements which, being
already expressly authorized by statute, though not expressly made admis-
"S 1696, R. V. Paine, 5 Mod. 163 (libel ; a depo-
sitioQ of B., examined by the mayor of Bristol
upon oath but uot in P.'s presence, was offered ;
it was objected that " B. being dead, the defend-
ant had lost all opportunity of cross-examining
him," and the use of examinations before coro-
ners and justices rested on the special statutory
authority given them to take such depositions ;
the King's Bench consulted with the Common
Pleas, and "it was the opinion of both Courts
that these depositions should not be given in
evidence, the defendant not being present when
they were taken before the mayor and so had
■ lost the benefit of a cross-examination "'; the
reports of this case in 1 Salk. 281, 1 Ld. Raym.
729, are brief and obscure).
*' It is a little singular that R. v. Paine is
not cited by any of the numerous debaters in
Fenwick's Trial. The date of the former is
given as Hilary Term, 7 Wm. Ill, which must
have been January, 1696, or ten months before
Fenwick's Trial. It is cited in Bishop Atter-
bury's Trial, in 1723, infra.
5* 1696, Fenwick's Trial, 13 How. St. Tr.
637, 591-607, 618-750 (the sworn statement
before a justice of the peace of one Goodman,
said to have absented himself by the accused's
tampering, was offered on a trial in Parliartient ;
a prolonged debate took place, and this deposi-
tion, termed hearsay, was opposed on the precise
ground of " a fundamental rule in our law that
no evidence shall be given against a man, when
he is on trial for his life, but in the presence of
the prisoner, because he may cross-examine him
who gives such evidence," "by which much
false swearing was often detected " ; the deposi-
tion was finally admitted, Nov. 16, by 218 to
145 in the Commons, and the attainder passed
by 189 to 156 in the Commons and by 66 to 60
in the Lords ; but it is clear from the debate
that many of those voting to receive the deposi-
tion did so on the theory that Parliament was
not bound to follow the rules of evidence ob-
taining in the inferior Courts ; the speeches
claiming that those rules would admit it were
half-hearted and evasive ; moreover, the prosecu-
tion only ventured (595) to offer it as " cor-
roborating evidence" ; see supra, note 33).
'" The last remnant of hesitation is found in
Bredon v. Gill, 1697, 2 Salk. 555, 1 Ld. Raym.
219, 5 Mod. 279 (question whether on statutory
appeal from excise-commissioners to appeal-com-
missioners depositions below could be used or
the witnesses should " be brought in again
personally and be examined viva voce " ; ruled
at first that "the law does not make viva voce
evidence necessary, unless before a jury ; in
other cases depositions may be evidence " ; but
afterwards, mutata opinione, the Court required
examination de novo). But the persistence with
which the older notion lingered on is seen in
Bishop Atterbury's Trial, 16 How. St. Tr. 323,
463, 471, 495, 503, 523, 536, 595, 607, 608, 616,
673 ; here an examination before the Council,
hot on oath, of one since dead, was on an im-
peachment voted by a majority of the Lords to
be received ; but the vote was clearly the result
of hot partisanship, and the managers of the
impeachment conceded that their evidence was
not legal ; in this trial the first citation of R. v.
Paine occurs, at p. 536.
■is 1730, Emlyn, Preface to State Trials, 1
How. St. Tr. XXV ("The excellency therefore
of our laws above others J. take to consist chiefly
in that part of them which regards oiiniinal
prosecutions. ... In other countries . . the
witnesses are examined in private and in the
prisoner's absence ; with us they are produced
face to face and deliver their evidence in open
court, the prisoner himself being present and at
liberty to cross-examine them"); ante 1726,
Gilbert, Evidence, 58 ff. ; 1747, Eadei>. Lingood,
1 Atk. 203 (deposition before bankruptcy com-
missioners, excluded).
"'' See the quotations in the preceding six
notes.
1693
§ 1364 HEAESAY RULE. [Chap. XLIII
sible, might be thought to call for special exemption, namely, the sworn ex-
amination of witnesses before justices of the peace in certain cases, and of
witnesses before a coroner. That the rule excluding depositions taken with-
out cross-examination should be applied to those of the former sort was not
settled until the end of the 1700s.^ That it should apply to those of the
latter sort never came to be conceded at all in England,®^ — at least, inde-
pendently of statutory regulation in the 1800s; and long tradition availed to
preserve the use of these, though only as a distinct exception to a general
rule. That general rule, from the beginning of the 1700s, was clearly
understood to exclude alike sworn and unsworn statements made without
opportunity to the opponent for cross-^examination. From that period the
rule could be broadly stated in the words of a judge writing just two centu-
ries later : ^ " Declarations under oath do not differ in principle from declara-
tions made without that sanction, and both come within the rule which
excludes all hearsay evidence."
One noteworthy consequence, having an important indirect influence on
other parts of the law of evidence, was the addition of a new activity to the
accepted functions of the counsel for an accused person. In 1695^^ counsel
had been allowed, in treason only, to make full defence for the accused ; but
until 1836 ^^ no law allowed this in felony. Yet as soon as the rig'ht of
cross-examination was established, it was indispensable that trained counsel
should be permitted to conduct it, if it were to be effective.^^ And so in a
short time this practice (without technical sanction) forced itself on the
judges in criminal trials :
1883, Sir James Stephen, History of the Criminal Law, 1, 424 : " The most remark-
able change introduced into the practice of the courts [from the middle of the eighteenth
century] was the process by which the old rule which deprived prisoners of the assistance
of counsel in trials for felony was gradually relaxed. ... In Barnard's trial [in 1758]
his counsel seem to have cross-examined all the witnesses fully. ... On the other hand,
at the trial of Lord Ferrers two years later, the prisoner was obliged to cross-examine the
witnesses without the aid of counsel. . . . The change [of law by the statute of 1836]
was less important than it may at first sight seem to have been."
Indirectly, this resulted speedily in a new development, to a degree before
unknown, of the art of interrogation and the various rules of evidence natu-
rally most applicable on cross-examinations, — particularly, the impeachment
of witnesses.®* Furthermore, it resulted ultimately in the breakdown of the
5' 1739, R. V. Westbeer, 1 Leach Cr. L., 4th pauper a3 to his settlement ; a divided Court) ;
eJ., 12 (deceased accomplice's information upon 1801, R. v. Ferryfrystone, 2 East 54 (the exelud-
oath, admitted, though it was objected that the inft opinion of the preceding case confiiTOed).
defendant "would lose the benefit which might ">' R. v. Eriswell, supra; and cases cited posi,
otherwise have arisen from cross-examination") ; § 1374.
1762, Foster, Crown Law, 328 (the eminent ^o igjg^ Vann, J., in Lent v. Shear, 160
author regards a deceased deponent's examina- N. Y. 462, 55 N. E. 2.
tion before either coroner or justices as admis- '^ St. 7 & 8 Wm. Ill, c. 3.
sible, not discriminating as to the accused's '* St. 6 & 7 Wm. IV, c. 114.
piesenoe and cross-examination); 1789, R. v. '' By the prosecuting counsel it had of course
Woodcock, 2 Leach Or. L., 4th ed., 500 (justice already been employed, e. g. 1688, Seven Bish-
of the peace's examination of the victim of an ops' Trial, 12 How. St. Tr. 183.
assault, excluded) ; 1790, R. v. Eriswell, 3 T. K. •* As noted aiUe, § 8.
707 (justice of the peace's examination of a
1694
§§ 1360-1366] HISTORY OF THE EULE. § 1365
old fixed tradition that a criminal trial must be finished in one sitting. The
necessary sifting of testimony by cross-examination took double and
treble the time used of yore. Under vast inconvenience, the old tradition
was preserved, until at last it gave way, from very exhaustion, to the new
necessities.^^
What we find, then, in the development of the Hearsay rule is : (1) A
period up to the middle 1500s, during which no objection is seen to the use
by the jury of testimonial statements by persons not in court; (2) then a
period of less than two centuries, during which a sense arises of the impro-
priety of such sources of information, and the notion gradually but defi-
nitely shapes itself, in the course of hard experience, that the reason of this
impropriety is that all statements to be used as testimony should be made
only where the person to be affected by them has an opportunity of probing
their trustworthiness by means of cross-examination; (3) Finally, by the
beginning of the 1700s, a general and settled acceptance of this rule as a
fundamental part of the law.^^ Such, in brief, seems to have been the course
of development of that most characteristic rule of the Anglo-American
law of evidence, — a rule which may be esteemed, next to jury-trial, the
greatest contribution of that eminently practical legal system to the world's
jurisprudence of procedure.
§ 1365. Cross-Ezamination and Confrontation. The essential requirement
of the Hearsay rule, as just examined, is that statements offered testimonially
must be subjected to the test of Cross-examination. But a process commonly
spoken of as Confrontation is also often referred to as an additional and
accompanying test or as the sole test. Now Confrontation is, in its main
aspect, merely another term for the test of Cross-examination. It is the pre-
liminary step to securing the opportunity of cross-examination ; and, so far
as it is essential, this is only because cross-examination is essential. The
right of confrontation is the right to the opportunity of cross-examination.
Confrontation also involves a subordinate and incidental advantage, namely,
the observation by the tribunal of the witness' demeanor on the stand, as a
minor means of judging the value of his testimony. But this minor advan-
tage is not regarded as essential, i. e. it may be dispensed with when it is not
feasible. Cross-examination, however, the essential object of confrontation,
remains indispensable. The details of this distinction are elsewhere to be
examined (post, § 1395) ; it is enough to note here that, so far as confron-
tation is an indispensable element of the Hearsay rule, it is merely
another name for the opportunity of cross-examination.
" "Mr. Erskine made his celebrated speech treason that had not heen finished in a single
in Ivord George Gordon's case, 1781, after mid- day " (Campbell, Lives of the Chancellors, 5th
night, and the verdict was given at 5.15 A. m., ed., VIII. 307). Compare the citations post,
the Court having sat from 8 P. M. the previous § 1864.
day. In 1794, in Hardy's case, the Court sat ^^ It therefore does not date back so far as
from 8 till past midnight " (Sir H. B. Poland, our judges have sometimes fondly predicated, —
A Century of Law Reform, 1901, p. 63); "to Magna Charta, if not beyond it," for
Until the trial of Hardy, in 1794, " there had instance (Anderson v. State, 89 Ala. 12, 7 So.
not yet been an instance of a trial for high 429 ; 1890).
1695
§ 1366 HEAESAY EULE. [Chap. XLIII
§ 1366. Division of Topics. An exposition of the Hearsay rule embraces
four general topics :
I. The Hearsay rule's requirements, and their satisfaction ; i. e. the
detailed rules for application of the tests of Cross-examination and Confronta-
tion;
II. The kinds of assertions admitted as Exceptions to the Hearsay rule ;
III. Utterances, not being testimonial assertions, to which the Hearsay
rule is not Applicable ;
IV. Sundry statements to •which the Hearsay rule is Applicable.
1696
§§ 1367-1393]
BOOK I, PART II, TITLE II.
§ 1367
Sub-title I : THE HEARSAY RULE SATISFIED.
Topic I : BY CROSS-EXAMINATION.
CHAPTER XLIV.
In General.
§ 1367. Cross-examination as a Distinctive
and Vital Feature of onr Law.
§ 1 368. Theory and Art of Cross-examination.
§ 1369. Other Rules concerning Cross-exam-
ination, discriminated.
§ 1370. Cross-Examined Statements not an
Exception to the Hearsay Rule.
§ 1371. Opportunity of Cross-examination, as
equivalent to Actual Cross-examination.
§ 1372. Division of Topics.
1. Kind of Tribunal or Officer, as affect-
ing Opportunity of Cross-examina-
tion.
§ 1373. General Principle ; Sundry Tribunals
(Commissioners of Land-Titles, Pilotage, Bank-
ruptcy, etc. ; Arbitrators).
§ 1374. Same : Testimony at a Coroner's In-
quest.
§ 1375. Testimony before a Committing Mag-
istrate 6r Justice of the Peace.
§ 1376. Depositions ; Effect of Other Prin-
ciples discriminated.
§ 1377. Same : General Principle ; Oppor-
tunity of Cross-examination required.
§1378. Same: Notice and SuiBcient Time;
Attendance cures Defective Notice.
§ 1379. Same: Plural Depositions at the
Same Time and Different Places.
§ 1380. Same : English and Canadian Statutes.
§ 1381. Same : TJ. S. Federal Statutes.
§ 1382. Same : U. S. State Statutes.
§ 1383. Same : Depositions in Perpetuam
Memoriam.
§ 1384. Affidavits ; Testimony of King or
Ambassador.
§ 1385. Ex parte Expert Investigations ; Pre-
liminary Rulings on Voir Dire ; Testimony by
an Opponent.
2. Issues and Parties, as affecting Oppor-
tunity of Cross-examination.
§ 1386. General Principle; Issue and Parties
must have been Substantially the Same.
§ 1387. Issue the Same.
§ 1388. Parties or Privies the Same.
§ 1389. Deposition used by Either Party ; Op-
ponent's Use of a Deposition taken but not read.
3. Conduct of the Cross-examination
itself, as affecting Opportunity of
Cross-examination.
§ 1390. Failure of Cross-examination through
the Witness' Illness or Death.
§ 1391. Failure of Cross-examination through
the Witness' Refusal to Answer or the Fault of
the Party offering him.
§ 1392. Non-Responsive Answers ; General or
" Sweeping " Interrogatories.
§ 1393. Sundry Insufficiencies of Cross-ex-
amination.
§ 1367. Cross-examination as a Distinctive and Vital Feature of our La^^T-.
For two centuries past, the policy of the Anglo-American system of evidence
has been to regard the necessity of testing by cross-examination as a vital
feature of the law. The belief that no safeguard for testing the value of
human statements is comparable to that furnished by cross-examination, and
the conviction that no statement (unless by special exception) should be used
as testimony until it has been probed and sublimated by that test, has found
increasing strength in lengthening experience. Not even the abuses and the
puerilities which are so often found associated with cross-examination have
availed to overbalance its value. It may be that in more than one sense it
takes the place in our system which torture occupied in the mediaeval system
of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine
ever invented for the discovery of truth. However difficult it may be for
the layman or the foreign jurist to appreciate this its wonderful power, there
has probably never been a moment's doubt upon this point in the mind of a
1697
§ 1367 RIGHT OF CROSS-EXAMINATION. [Chap. XLIV
lawyer of experience. " You can do anything," said Wendell Phillips, " with
a bayonet — except sit upon it." A lawyer can do anything with a cross-
examination, — if he is skilful enough not to impale his own cause upon it.
He may, it is true, do more than he ought to do ; he may " make the worse
appear the better reason, to perplex and dash maturest counsels," — may
make the truth appear like falsehood. But this abuse of its power is able to
be remedied by proper control. The fact of this unique and irresistible power
remains, and is the reason for our faith in its merits. If we omit politi-
cal considerations of broader range, cross-examination, not trial by jury, is the
great and permanent contribution of the Anglo-American system of law to
improved methods of trial-procedure.^ Striking illustrations of its power to
expose inaccuracies and falsehoods are plentiful in our records ; ^ and it is
apparent enough, in some of the great failures of justice in Continental trials,
that they could not have occurred under the practice of effective cross-
examination.^ The praise of cross-examination and its efiBcacy as a funda-
mental test of truth have often been the subject of comment and exposition
by our judges and jurists :
Anie 1680, Sir Matthew Hale, L. C. J., in his History of the Common Law, c. 12:
" The excellency [in English law], of this open course of evidence to the jury in presence
of the judge, jury, parties, and council, and even of the adverse witnesses, appears in these
particulars : . . . Sdly, That by this course of personal and open examination, there is
opportunity for all persons concerned, viz. the judge, or any of the jury, or parties, or
their council or attornies, to propound occasional questions, which beats and boults out
the truth much better than when the witness only delivers a formal series of his knowledge
without being interrogated."
1806, Mr. W. D. Evans, Notes to Pothier, II, 198: "Whoever has had an opportunity
of attending courts of judicature and also of seeing the private examinations which are
taken upon many of the occasions above alluded to, must be convinced of the great
danger of suffering any public or private interests to be affected by such examinations.
Wherever the narration of a witness may be the subject of objection on account of his
veracity, the failure which justice must experience from the want of an opportunity of
trying the fact by a minute examination of circamstances open to contradiction, by fixing
the witness to time and place and all other topics not comprised in a general sweeping
account, will be manifest to the most cursory observers. . . . But even when all suspicion
of veracity is supposed to be out of the question, how very unsatisfactory is the ex parte
account of a witness taken under circumstances in which the adverse party had not a fair
^opportunity of cross-examination. . . . The decision of the event by the materiality of
facts disclosed on cross-examination is a matter of perpetual occurrence. . . . The ex-
perience of every lawyer must furnish many instances of a set of cut-and-dried depositions
being unable to stand the test of an open cross-examination."
1811, Bayley, J., in Berkeley Peerage Case, 4 Camp. 405: " Whoever has attended to
^ Mr. Beutham affirms this in the quotation is so casual or so feeble as to be a negligible
■post. Such also was the pronouncement of an quantity.
eminent member of the Tokyo Bar, Mr. Masu- * See ante, §§ 782, 990-996, 1005-1006, 1260,
jima, who had entered the Bar at the Middle post, § 1368, for examples.
Temple, London, and had enjoyed an opportu- ' For example, in some of the trials set out in
nity of comparing the methods there learned the Appendix to Stephen's History of the Crim-
witli those of hia brethren who had been trained inal Law, vol. I.
in France and Germany. In Continental prac- Conversely, in the Dreyfus trial (1899), the
tice, the examination of witnesses is in theory exposure of the prosecution's particular frauds
conducted by or through the judge, by repetitien was due almost entirely to M. Labori's cross-
of questions, and in practice cross-examination examination.
1698
§§ 1367-1393] IMPORTANCE OF THE RIGHT. § 1367
the examination, the cross-examination, and the re-examination of witnesses, and has
observed what a very different shape their story appears to take in each of these stages,
will at once see how extremely dangerous it is to act on the ex parte statement of any
witness and still more of a witness brought forward under the influence of a party in-
terested. In this case A., whose legitimacy is supposed to be in issue, has put to J. S.
every question he thought fit, and has therefore obtained from him probably not the whole
that J. S. knows upon the subject, but all that will benefit A. ; while B., against whom
this deposition is to be read, has had no opportunity of proposing a single question to
J. S., either to put his veracity to the test, or to bring out any other matter within the
knowledge of J. S. which would make in his favor. . . . There maybe various other con-
siderations in point of interest to influence the father, which if exhibited by cross-
examination might in a great degree impeach, if not completely destroy, the effect of the
evidence he has given. So it might turn out on cross-examination that he had made
other contrary declarations, perhaps equally solemn as those as to which he has been
asked, and that his conduct . . . had been such as to throw an entire discredit on his
present asseverations.''
1824, Mr. Thomas Starkie, Evidence I, 96, 129 : " The power given to the party against
whom evidence is offered of cross-examining the witness upon whose authority the evi-
dence depends constitutes a strong test of both the ability and the willingness of the
witness to declare the truth. By this means the opportunity which the witness had of
ascertaining the fact to which he testifies, his ability to acquire the requisite knowledge,
his powers of memory, bis situation with respect to the parties, his motives, are all
severally scrutinized and examined. Under such circumstances it must be very difficult
for a witness to interweave a false account so nicely with the truth as to make it consist
and agree with all the other circumstances of the case. . . . However artful the fabrica-
tion of the falsehood may be, it cannot embrace all the circumstances to which the cross-
examination may be extended; the fraud is therefore open to detection for want of
consistency between that which has been fabricated and that which the witness must
either represent according to the truth, for want of previous preparation, or misrepresent
according to his own immediate invention. . . . The power and liberty to cross-examine
is one of the principal tests which the law has devised for the ascertainment of truth, and
is certainly a most efficacious test."
1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. II, c. IX, and b. Ill,
c. XX: "In the character of a security for the correctness and completeness of testi-
mony, so obvious is the utility and importance of the faculty and practice of interrogation
that the mention of it in this view might well be deemed supei-fluous. ... By interro-
gations thus pointed, such a security for completeness is afforded as can never be afforded
by any general engagement which can be included in the terms of an oath or other formu-
lary. ... By interrogation, and not without, is the improbity of a deponent driven
out of all its holds. . . . The best possible mode of extracting testimony — the mode
which a considerate master of a family would employ when sitting in judgment on the
conduct of a servant or a child — in a word, the mode by oral interrogation and counter-
interrogation, is a production of English growth. Among those who in its native country
are so cordial in their admiration of this mode of trial [by jury], there are not twenty
perhaps who at this moment are aware that, in contradistinction to Roman jurisprudence,
the mode of extracting evidence on this occasion is as peculiar to English procedure as
the constitution of the court. The peculiarity of the practice called in England cross-
examination, the complete absence of it in eveiy system of procedure grounded upon the
Roman (with the single exception of the partial and narrow use made of it in the case of
confrontation), is a fact unnoticed till now in any book, but which will be as conclusively
as concisely ascertained at any time by the impossibility of finding a word to render it
by in any other language. . . . No political institution was ever kept more completely
hidden from general observation. All mouths are open in praise of trial by jury ; and
this is the mode of extraction employed on a trial by jury. It has been observed that
1699
§ 1367 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
somehow or other the ends of justice were more effectually accomplished in that sort of
court of which the tribunal called a jury was one feature, and the use of this mode of
extracting evidence another; but to which of them the effect was principally to be
ascribed is a question that seems never to have presented itself. The feature which con-
sists in the composition of the court seems to have engrossed all the praise of it. ' Trial
by jui-y ! Ever blessed and sacred trial by jury ! Juries for ever ! ' is the cry ; not ' Trial
by oral and cross-examined evidence ! ' It is, however, to this comparatively neglected
feature that that most popular of all judicial institutions would be found to be indebted
for the least questionable and most extensively efficient, if not the most important of its
real merits."*
1806, Livingston, Sen., in Jackson v. Kniffen, 2 John. 35 (rejecting a testator's hearsay
declarations) : " Besides the danger of tampering with a person who may be known to
have made a will, . . - the right of cross-examining is invaluable and not to be broken
in upon. How often is testimony which, when first delivered, appears conclusive and
irrefragable, entirely frittered away by this process, — so much so, that a witness well
sifted not unfrequently proves more against than in favor of the party that produces him.
If one eye-witness be worth more than ten hearsay witnesses, a still higher value must be
set on proofs made iu presence of both parties, compared with ex parte declarations. In
one way, the whole truth comes out ; in the other, no more than it may suit the witness
or his friends to have disclosed. The not being under oath, although a serious objection,
is not with me the greatest, because, admitting everything said to be true, so long as it
is in the absence of one and at the solicitation of the other party, it should go for nothing.
In what way the will was extorted, what menaces were used, why he was afraid of being
murdered, . . . with many other inquiries which a public examination might have sug-
gested, would have afforded the jury a much fairer means of arriving at the truth."
1844, Richardson, J., in State v. Campbell, 1 Rich. L. 126: "The defendant's cross-
examination expresses well the searching process and practical test furnished and
intended by this rule of law. . . . Experience has proved that it is, of all others, the
most effective, the most satisfactory, and the most indispensable test of the evidence nar-
rated on the witness' stand. ... I know of no disagreement, among the expounders of
evidence, upon the importance of cross-examination."
1846, Nisbet, J., in McCloshey v. Le.adhetter, 1 Ga. 551, 555 : "I have been thus par-
ticular in planting the power of cross-examination upon a foundation laid in authority,
because of the sacred character of that right. The power of cross-examination is the
most efficacious test which the law has devised for the discovery of truth. Without it, viva
voce examinations, and more particularly examinations by commission, would be very
unsafe ; the ingenious witness, or still more ingenious examiner-in-chief, might easily
evade the truth and at the same time avoid the pains and penalties of perjury. The
right to be confronted with the witness, and to sift the truth out of the mingled mass of
ignorance, prejudice, passion, and interest, in which it is very often hid, is among the
very .strongest bulwarks of justice."
1881, Ruffin, J., ia-State v. Morris, 84 N. C. 764 : "All trials proceed upon the idea that
some confidence is due to human testimony, and that this confidence grows and becomes
more steadfast in proportion as the witness has been subjected to a close and searching
cross-examination ; and this because it is supposed that such an examination will expose
any fallacy that may exist in the statement of the witness, or any bias that might operate
to make him conceal the truth ; and trials are appreciated in proportion as they furnish
the opportunities for such critical examinations." ^
* The Common Law Practice Commissioners interrogation, cross-examination, publicity, ex-
of 1853 — a body including the eminent names amination in the presence of the tribnnsd."
of Jervis, Cockburn, Martin, Bramwell, Willes ' On the other hand, the special weakness of
— declared " the circumstances which give to chancery proceedings lay ia its obstacles to au
the system of English procedure its peculiar effective cross-examination: 1827, Bentham,
and characteristic merits" to be "viva voce Kationale of Judicial Evidence, b. Ill, c 16
1700
§§ 1367-1393] THEORY AND ART. § 1368
§ 1368. Theory and Art of Cross-examination. That the process of cross-
examination is thus invaluable, the lawyer well knows. But why is it inval-
uable ? Just what does it do, and how ? What is the theory of its
efficiency ? Upon this we commonly reflect but little. Nevertheless, con-
scious of its power, we must also be conscious of the reasons for its power,
if it is to be used intelligently and effectively. Those reasons can best be
seen by contrasting cross-examination, as a stage or mode of presenting evi-
dence, with the two other and alternative modes which co-exist with it.
Cross-examination by an opponent is to be contrasted, on the one hand, with
proof by direct examination of the same witness hy the proponent, and on the
other hand, with proof iy other witnesses called hy the opponent. What
will cross-examination succeed in doing, which either of these modes might
fail to do ?
I. The Theory of Cross-examination. 1. Proof iy direct examination of
the same witness, contrasted. The fundamental feature is that a witness, on
his direct examination, discloses but a part of the necessary facts. That
which remains suppressed or undeveloped may be of two sorts, {a) the
remaining and qualifying circumstances of the subject of testimony, as
known to the witness, and (6) the facts which diminish and impeach the
personal trustworthiness of the witness, {a) The remaining and qualifying
circumstances of the subject of testimony will probably remain suppressed or
undisclosed, not merely because the witness frequently is a partisan, but
also and chiefly because his testimony is commonly given only by way of
answers to specific interrogatories {ante, §§ 768, 785), and the counsel pro-
ducing him will usually ask for nothing but the facts favorable to his party.
If nothing more were done to unveil all the facts known to this witness, his
testimony (for all that we could surmise) might present half-truths only.
Some one must probe for the possible (and usual) remainder. The best per-
son to do this is the one most vitally interested, namely, the opponent.^
Cross-examination, then, *. e. further examination by the opponent, has for
its first utility the extraction of the remaining qualifying circumstances, if
any, known to the witness, but hitherto undisclosed by him.^ (h) The facts
which diminish and impeach the personal trustworthiness or credit of the wit-
ness will also, ia every likelihood, have remained undisclosed on the direct
examination. These it is the further function of the opponent's examination
to extract. Some of them, no doubt, could be as well or sometimes better
proved by other witnesses.^ But many of them can be obtained only from
the witness himself, — particularly those which concern his personal conduct
(Bowring's ed. vol. VI, p. 491) ; 1837, Story, J., ^ It is at this point that the Continental
in Smith v. Burnhara, 2 Sumn. 612, 623 ; 1877, system breaks down, for the cross-interrogation
Langdell, Equity Pleading, § 56 (" It is not sur- is there chiefly by the judge, who has neither
prising therefore that the mode of taking testi- the strong interest nor the full knowledge that
mony in equity fell into disrepute and finally are required.
broke down ") ; 1901, Mr. Augustine Birrell, A * Examples are given, infra, par. II.
Century of Law Reform, p. 189; Mr. W. Blake ' At this point the contrast infra, par. 2,
Odgers, ib. 222 (" Cross-examination^ under such becomes important,
conditions became a farce ") ; and the citations
post, § 1885.
1701
§1368 RIGHT OF CROSS-EXAMINATION. [Chap. XLIV
and his sources of knowledge for the case in hand. To this extent, again,
cross-examination is vital, i. e. it does what must be done and what nothing
else can do.*
2. Proof by other witnesses called ly the opponent, contrasted. But so far as
the rules of law and the circumstances of the case would permit the same
facts, obtainable on cross-examination, to be equally proved by other wit-
nesses cognizant of them, why not use the latter mode ? The advantages
secured by cross-examination are here mainly dramatic ; but they are only
less important (in the long run) than the foregoing, and they may be (in
individual cases) even more emphatic, (a) The first is that the cross-
examination immediately succeeds in time the direct examination. In this
way the modification or the discredit produced by the facts extracted is more
readily perceived by the tribunal. No interval of time elapses, to diminish or
to conceal their force. Proving the same facts by new witnesses, after others
of the proponent have intervened, might lose this benefit, and the counsel's
argument at the close might not be able to replace it. (6) But, chiefly, the
advantage is that the cross-examined witness supplies his own refutation.
If qualifying or discrediting answers are extracted from him, they are the
more readily believed. No other witness' credit intervenes to add a contin-
gency of mistake. If we believed the answers on the direct examination, we
must also believe the answers on cross-examination. Moreover, the dramatic
contrast of the former and the latter may multiply and even exaggerate the
abstract probative effect of the facts extracted. The difference between get-
ting the same fact from other witnesses and from cross-examination is the
difference between slow-burning sulphurous gunpowder and quick-flashing
dynamite ; each does its appointed work, but the one bursts along the weak-
est line only, the other rends in all directions.^ — Cross-examination, then,
will do things that cannot be done by questioning other witnesses.
What are the lessons to be drawn from this, the nature of cross-examina-
tion and its workings, to the technical use of it ? The detailed rules and
hints of experience for the art of successful cross-examination are without
the present purview ; for they involve also many considerations of human
character rather than of rules of law.® But at least the conclusions that
depend upon the evidential theory of cross-examination may be noticed :
II. The Art of Cross-examination. Since the direct examination may
not have disclosed all the remaining and qualifying circumstances of the
* The foregoing two features have been The underlying principle of this was elo-
analyzed and emphasized in the following work : quently stated by Mr. Evarts, in his epigram
1885, Mr. J. C. Keed, Conduct of a Lawsuit, " Truth, if truth, will match all round, with
2d ed., 280 ("There are at bottom but two material facts, with moral qualities," in the
kinds of cross-examination, — the one intended notable passage on the function of cross-ex-
to elicit friendly evidence, ... to make the amination, beginning "Truth comports with
witness give a complete narrative, if what has every fact" (Tiltou v. Beecher, Official Report,
been kept back is favorable to your side, . . . Ill, 674).
and the other, to show the unreliability of the " The quotations from Pigott'scross-examina-
witness " ; in the ensuing pages of the above tion and Judge Daly's anecdote, infra, illustrate
work, this judicious and adjnirable author de- this principle.
velops in detail these two aspects, from the * For a collection of references to writers on
point of view of the tactical art). the art of cross-examination, see ante, § 768.
1702
§§ 1367-1393] THEORY AND ART. § 1368
issue, as known to the witness, and may also have left unrevealed the defi-
ciencies of his knowledge, the suspicions of his motives, and other elements
of discredit {supra, par. 1, a and h), it remains for the cross-examiner to evoke
these. But what is he about to evoke ? What will be the complexion of
these facts when extracted? They may be what the cross-examiner hopes.
And yet they may not be. In the long run, there will be a large propor-
tion of such facts. But for a given witness it is often otherwise. The cross-
examiner may already know what is there waiting for disclosure. But if he
does not, he is faced by a contingency. He may extract the most confirming
circumstances for the proponent's own case, which have somehow been left
unmentioned. He may demonstrate that the credit of the witness is greater,
not less, than was supposed. The great axiom, then, of the art of cross-
examination, as dependent on the theory, is that it is a contingency whether
the facts that will actually he extracted will he favorable or unfavorahle to the
cross-examiner's purposes. It is here that the art (that is, the technical skill)
of cross-examination enters. On this hang all the lesser rules of the art.
Hence it is that it must call to its aid so many other elements than mere
knowledge of law. Experience of human nature, judgment of chances,
knowledge of the case, tact of manner, — all these things, and more, have to
do with the art. Yet the theory of the process underlies and influences at
every point. To cross-examine, or not to cross-examine, — that is the
fundamental question, which springs from the essential nature of the process
and arises anew for every part of every witness' testimony. The greatest
cross-examiners have always stated this as the ultimate problem.
III. Illustrations of the theory and the art. The theory and the art of
cross-examination, as thus outlined, are amply illustrated in the annals of
recorded trials. Of these, a few examples, of manageable compass, must here
suffice. With reference to the foregoing analysis (par. 1, a and h, supra),
the examples may be grouped under four heads : '
1, «. Examples of the utility of a cross-examination, in bringing out
desirable facts of the case, modifying the direct examination or otherwise
adding to the cross-examiner's own case :
1856, Mr. David Paul Brown, in " The Forum," IT, 456 (this celebrated Pennsylvanian
advocate is describing a case of alleged infanticide by poison, administered by its
mother, whose seducer had deserted her) : " It was shown that a day or two before the
death of her infant, the mother had sent for half-an-ounce of arsenic to a grocer's. That
after the death the arsenic was taken to the grocer's, and was weighed, and had lost
twenty-four grains in its weight. This circumstance, together with the opinion of the
chemist, presented a strong case. Neither was sufficient in itself, but together they were
dangerous. Of course, the cross-examination as to the weight was vei-y rigid and severe.
Upon this particular point it ran thus : ' When the arsenic was purchased, how did you
weigh it?' ' I weighed it by shot.' ' How many shot?' 'Six.' ' Of what descrip-
tion? ' ' No. 8.' ' When it was returned, did you weigh it in the same scales ? ' ' Yes.'
' Did you weigh it with the same shot? ' ' I weighed it with shot of the same number —
' Almost all of these, under 1, a and b, infra, Besides the ensuing examples, others will be
serve also to illustrate the contrast noted in par. found quoted elsewhere under other principles
2, a and 6, supra, and no grouping is necessary, {ante, §§ 782, 990-996, 1005-1006, 1260).
1703
§ 1368 EIGHT OF CEOSS-EXAMINATION. [Chap. XLIV
for I had no other number.' ' How much less did it weigh? ' ' Twenty-four grains less.'
It was plain that this testimony bore hard upon the prisoner — but at this stage of the
case the Court adjourned. Immediately my colleague (Mr. Boyd) and myself visited the
stores of aU the grocers, and took from, various uncut bags of No. 8, the requisite num-
ber of shot, subjected them to weight in the most accurate scales, and found that the
same number of these different parcels of shot varied more in weight than the difference
referred to as detected in the arsenic at the time of its return. The shot — the grocers —
the apothecary — the scales — were all brought before the Court. They clearly established
the facts stated, and enabled us fairly to contend that there had been no portion of the
arsenic used, — which argument, aided by the excellent character of the prisoner, proved
entirely successful, and after a painful and prolonged trial, she was acquitted ; so that
her life may be said to have been saved by a shot."
1885, Mr. John C. Reed, Conduct of a Lawsuit, § 400 : " When your evidence is but
slight and that of the other side is very strong, you may be reckless in spurring his wit-
nesses to make a complete statement. Your case is so bad that any change in it may be
for the better. AVe add an entertaining and apt illustration. Some time ago the writer
while waiting in court watched the trial of a case where the plaintiff sought to recover
damages for a breach of warranty. The defendant had sold him a horse with an express
warranty that he was sound and kind and free from all ' outs.' The next day the plain-
tiff noticed that a shoe was loose, and he undertook to drive him to a blacksmith's shop
to have him shod, when the horse exhibited such violent reluctance that he was obliged
to abandon the attempt. Repeated efforts made it evident that he never would be shod
willingly, and therefore he was obliged to sell him. The defendant called two witnesses.
The first, an honest, clean-looking man, testified that he was a blacksmith, that he knew
the horse in question perfectly well, and he had shod him about the time referred to in
the plslintiff's testimony. ' Did you have any difficulty in shoeing him?' asked the de-
fendant's counsel. ' Not the least. He stood perfectly quiet. Never had a horse stand
quieter.' The other, a venerable-looking man, with a clear, blue eye, testified that he
had owned the horse and that he was perfectly kind. ' Did you ever have any trouble
about getting him into a blacksmith's shop? ' ' Well, sir, I don't remember that I ever
had occasion to carry him to a blacksmitli's shop while I owned him.' The plaintiff's
counsel evidently thought that cross-examination would only develop this unpleasant
testimony more strongly, so he let the witnesses go. The jury found for the defendant.
The next morning, as the writer was sitting in court waiting for a verdict, a man behind
him, whom he recognized as the blacksmith, leaned forward and said, ' You heard that
horse case tried yesterday, didn't you? Well, that fellow who tried the case for the
plaintiff did n't know how to cross-examine worth a cent. I told him that the horee
stood perfectly quiet while I shod him ; and so he did. I did n't tell him that I had to
hold him by the nose with a pair of pincers to make him stand. The old man said he
never took him to a blacksmith's shop while he had him. No more he did. He had to
take him out into an open lot and cast him before he could shoe him.' Of course the
plaintiff's counsel should have been more searching in the examination, where he could
not possibly have made his own case worse."
1888, Parnell Commission's Proceedings, 15th day, T^imes' Rep., pt. 3, p. 125; the Irish
Land League was charged with complicity in crime and agrarian outrage ; its leaders did
not deny the fact of outrages, boycotts, and the like, but did deny that the Land League
had any share in them, and claimed that sundry local secret societies and individual mis-
creants were really responsible. James Burke testified ; Direct examination : " I am a
blacksmith. . . . There was a falling off in my customers. Previously to that, I had
received a letter which threatened my life if I shod Bermingham's horses. I gave the
letter to the police. I went before the League at Kinvarra." Q. "What for?" A.
" I went to look for mercy ; 1 was suffering from boycotting. . . . They told me it was
not from there I was boycotted — it was not from the League. Afterwards I subscribed
to the League, and paid Is. Customers returned again and I have had no trouble since."
1704
§§ 1367-1393] THEOEY AND AET. § 1368
Cross-examination : " When they told me that it was not the League that was boycotting
me, I believed them. The shilling I paid was the ordinary subscription." ... Q. " It
was not the League who boycotted you?" A. "No." Q. "Do you know who it
was?" A. "Some blackguards, 1 thiuk." Q. "There were no blackguards in the
League, I hope?" A. "Not that I know of." Q. "All respectable people?" A.
" Yes, I believe so." '
1888, Parnell Commission's Proceedings, 37th and 43d days, Times' Rep., pt. 10, pp.
110, 113, 123, pt. 11, p. 158 ; a police-superintendent came to testify that at the meetings
of the local Land Leagues speeches were habitually made denouncing certain persons, and
that outrages upon them followed shortly, the League thus being charged with direct
incitement of outrage ; this witness had kept a record of the speeches and the ensuing
outrages ; " every meeting that occurs in the division is reported to me ; . . . my record
gives a summary of the language used ; " and on cross-examination by Sir C. Russell, who
asked him to go through the various instances " exhaustively, " the witness was led
through a number of cases of the sort he alleged ; the connection between speech and
outrage being sometimes made out by him ; on a subsequent day, he was cross-examined
by Mr. Davitt as follows, so as to show the slender basis for the witness' assertion of the
criminal influence of the League's speeches ; Q. " Your experiences of the League cover
the counties of Wexford, Carlow, Kilkenny, Tipperary, Waterford — six counties
altogether, I believe?" A. "No, eight counties." Q. "And this experience extends
over a period of eight years?" A. " Not of all the counties ; in some cases over a lesser
period. " Q. " About how many branches of the League are there in each of these coun-
ties ? " A. " I have not the return with me. ... I should say there are branches of the
League in every parish. " Q. " Then you would say there would be at least 50 branches
in each county ? " A. " At least that. " Q. " Three hundred branches altogether in six
counties?" A. "Yes." Q. "These branches meet weekly, I believe?" ... A. "I
should say practically they meet once a fortnight. " Q. " That would represent a very
large number of meetings of each branch every year ; and for the total number of branchis
quite an extraordinary number of meetings — 6,000 during the year ; multiply that by
eight years, we have 48,000 meetings. Now at each of these meetings, I understand, a
chairman presides, and if there is a resolution to be proposed it is spoken to by two speak-
ers. That would be three speeches for each meeting?" A. " I only know the proce-
dure from what I see in the papers." Q. "I believe that is the rule. That would be
144,000 speeches in eight years, delivered in branches of the League in these counties of
which you have experience of the League and its working. About how many outrages,
roughly speaking, did you particularize to Sir C. Russell yesterday as resulting directly
from speeches of the Land League ? " A. " I gave instances of about two dozen. " Q.
" About 24. Dividing 24 into 144,000, that would give a very small number of outrages
for eight years, would it not ? " A. "Yes."'
' So also the examination of David Treeley, pered in the ear of his attorney, saying, ' Call
ib. 28th day, pt. 8, p. 13. Jack Deans ; he was there ; lie saw the whole
' Compare also these : 1843, U. w. O'Connell, thing.' Thereupon in a short while Jack
5 St. Tr. N. s. 1, 252 (cross-exaniination by Mr. Deans was duly called and put upon the witness
Hatchell) ; 1875, Tilton v. Beecher, N. Y., stand in behalf of the defendant. 'Now, Mr.
"Official" Eeport, II, 116 (cross-examination Deans,' said the ex-Governor, after some pro-
of Mr. ]{. E. Holmes, as to the Winsted scandal, liminary questions, ' you say that you know the
by Mr. FuUerton) ; II, 412 (cross-examination defendant and that you were present at the time
of Mr. J. L. Gay, by Mr. Morris). The follow- of the alleged assault by him on the prosecutor,
ing anecdote perhaps equals any instance ever Tell us what you saw of that occurrence.'
chronicled : " A certain ex-Governor had on ' Well, I was coming 'long the road,' said
one occasion a client who was indicted for the witness, ' and I seen 'em gitting up out
maiming, the specific charge being that the of the dirt ; but I did n't see the defendant hit
defendant had bitten ofE the ear of the prosecu- the prosecutor, and I did n't see him kick
tor. The case came on for trial and the out- him, and I did n't see him bite his ear off.'
come of it was not very promising for the 'You were in plain view of the parties and
defendant. While the defence was still being you say you did not see any of these things ? '
adduced, the defendant leaned over and whis- asked the ex-Governor, with an expanding
1705
§ 13C8 RIGHT OF CROSS-EXAMINATION. [Chap. XLIV
1, a'. Examples of the inutility of a cross-examination, in bringing out
undesirable facts of the case, strengthening the direct examination :
1878, Mr. W. V. N. Bay, Bench and Bar of Missouri, 151: " In Parker's reminiscences
of Rufus Choate is related a story of the cross-examination of a sailor who had turned
State's evidence, and was relating the story of a theft of money from the ship while in a
distant port. The witness declared that though he had taken the money, it was the
defendant, the great advocate's client, that had instigated the theft. ' What did he say
to you ? ' asked Choate. ' Why, he told us,' replied the witness, ' that there was a
man in Boston, named Choate, who would get us off even if they caught us with the
money in our boots ! ' This terrible thrust produced an uproar of laughter in the court-
room. Yet it is related that Choate's countenance remained absolutely immovable.'' ^°
1888, Parnell Commission's Proceedings, 72d day. Times' Rep., pt. 20, pp. 145, 247;
the Irish Land League was charged with collecting funds to be used for supporting crime
and outrage and armed rebellion, and Mr. Parnell was under cross-examination as to the
purpose for which he collected money during his tour in America ; he admitted accepting
money from all sources, including those "physical force" adherents, who favored dyna-
mite-violence and the like, but claimed that he received it for the sole purpose of fur-
thering the peaceable and lawful methods of the Land League ; Sir Richard Webster, the
attorney-general, in cross-examining, brought up the following significant incident, but
by pressing it too far gave opportunity for the witness wholly to explain away and nullify
its force ; Q. " Do you remember the celebrated occasion at Troy, when a gentleman
came forward and offered you 'Jiee dollars for bread and twenty dollars for lead ' f " A.
"Yes." Q. " You did not think it necessary to refuse the twenty dollars for lead? " A. " I
was very glad to get the money, but not for lead." Q. " In your presence, tlien, at Troy,
a man offered five dollars for bread and twenty for lead ? " A. " That was the expression
used."" Q. "You understood that to mean that some one in the audience was ready
to subscribe five dollars for charity and twenty dollars for fighting purposes? " A. " Not
a bit of it. I understood that he was ready to subscribe five dollars to our charitable
fund and twenty dollars in support of the Land League movement." Q. " Then did you
think it a fair description of your agitation to call it ' lead ' ? " A. " No, I did not think
it was." Q. " Why do you think the gentleman meant the Land League by 'lead ' ? "
A. " Because if he had not he would not have given the money to me." Q. " Do you rep-
resent that a public offer of twenty dollars for lead in support of your agitation and an
acceptance of the sum on your side would be understood as a repudiation of physical
force opinions ? " A. " At the beginning of ray meetings in America I Jmd declared that
I would not receive one cent for arms or for any unconstitutional or illegal movement. . . .
Having made that declaration at the outset of my tour, and having said subsequently
nothing inconsistent with that declaiation, I consider that no man in his senses would
have offered me twenty dollars believing that the money would be used for the very pur-
poses which I had repudiated." . . . Q. " Now, do you not know that that speech about
lead was repeatedly quoted in Ireland, and that the construction put upon it was that the
subscription was for physical force matters? " A. " By your side it was quoted, I know."
chest. 'Yes,' said the witness. Then the anecdote of the old gentleman's valet, quoted
prosecuting attorney took a hand, and cross- post, § 2094, is also an excellent illustration of
examined. 'Now, Mr. Deans,' said he, 'you the present principle.
have told the Governor all that you did not see i» This anecdote is related in Brown's Life of
of this assault ; please tell me what you did see Choate, 3d ed. 451, but not so pointedly. Com-
of it.' ' Well,' said the witness, squirming in pare the following: 1875, Tilton «. 'Beecher,
his chair and hesitating a long timu before pro- N. Y., " Official " Report, II, 236 (cross-examina-
ceeding, ' it 's so ; I did n't see the defendant tion of Mr. Oliver Johnson, by Mr. FuUerton) ;
bite ojf the prosecutor's ear. But jest as I got II, 706 (cross-examination of Mr. James Free-
abreast of him I seen him spit the ear out of lands, by Mr. FuUerton) ; II, 307 (oross-examina-
his mouth ! ' That was enough for the prosecu- tion of Mr. Samuel Wilkeson, by Mr. Beach),
tion and a great deal more than enough for " Here the cross-examiner might well hava
the ex-Governor" (13 Green Bag 423). The stopped.
1706
§§ 1367-1393] THEORY AND ART. § 1368
Q. "What do you mean by my side?" A. "The Tory party." . . . Q. "Did not
Boyton, the Land League organizer, quote the speech as meaning what I have indi-
cated?" A "I donot know that he did." Q. " Do you not know that it has been proved
already in this case ? " A. "I do not. The only use made of the speech in that sense
was when Mr. O'Hanlon tried to break up our meeting in the Rotunda. He wrote a letter
to a newspaper next day wanting to know what I had done with these twenty dollars."
Q. " And suggesting that the money ought to have gone to the physical force party for
the purchase of lead? " A. "Yes ; he thought that I was misappropriating it. " ^^
1, h. Examples of the utility of a cross-examination, in bringing out, from
the witness himself, facts to lessen his credit.
1888, Parnell Commission's Proceedings, 78th day, Times' Rep., pt. 21, pp. 225, 230,
231 ; the Land League having been charged with terrorizing and intimidation of the peo-
ple at large, a Catholic priest who was president of one of the branches was examined for
the defence as to the methods of the League; Direct examination ; Q. " Was any kind of
pressure or intimidation exercised to your knowledge to make people join the League? "
A. " No ; things were done in a very regular way. A notice was posted up asking the
people to come and join the League. Those who wished to do so then came and paid
their subscriptions. There was no house-to-house-visit, there was no pressure whatever ;
it was perfectly free." . . . Cross-examined by Mr. Murphy. Q. "Nothing particular
was done, I understand you to say, to induce people to join the Land League ? " A.
" Nothing, in my district. " Q. ''Are you quite certain? " A. " Quite certain." . . .
Q. " I will call your attention to some of your own speeches. On the 12th of December,
1880, speaking at Craughwell, you say, 'I tell you that the wretch who has not joined the
League, that that man deserves to go down to the cold, dead damnation of disgrace. ' That
is pretty strong ? " A. "Yes." Q. "Did you use those words? " A. " It is possible."
Q. "Did you use them?" A. "I may have." Q. "Have you any doubt about it?"
A. "I never saw it in print." Q. " Did you use that language ? " A. "Verylikelyl
did. " Q. " Do you regard that as an invitation to join the League voluntarily or invol-
untarily?" A. "Well, it does not involve any intimidation." ... Q. "'To go down
to the cold, dead damnation of disgrace ' ?" A. " Well, it is rather a strong expression,
I admit. " Q. " Did you believe that that was the proper fate for anyone who did not
join the League?" A. " Well, I suppose I used it in order to induce them to join. " Q.
" Did you use the expression in order to frighten the people?" A. " I suppose it was
iti order to induce them to Join the League. ''
1888, Parnell Commission's Proceedings, 55th day. Times' Rep., pt. 14, p. 252; certain
letters, purporting to be Mr. Parnell's, and approving the Phoenix Park assassinations,
had been sold to the London "Times" by one Richard Pigott, an Irish editor and in-
former; these letters had been in fact fabricated by Pigott himself, but until he came
under Sir Charles Russell's cross-examination the case for the letters' genuineness was,
strong ; the word " hesitency " occurred in one of the letters and this with other words
had been written down by Pigott at the opening of his cross-examination ; Q. " Yester-
day you were good enough to write down certain words on a piece of paper, and among
them was the word 'hesitancy.' Is that a word you are accustomed to use?" A. "I
have used it. " Q. " Did you notice that you spelt it as it is not ordinarily spelt? " A.
"Yes, I fancy I made a mistake in the spelling." Q. " What was it?" A. "I think it
was an 'a' instead of an 'e,' or vice versa; I am not sure which. " Q. "You cannot say
what was the mistake, but you have a general consciousness that there was something
wrong?", A. "Yes." Q. "I will tell you what was wrong according to the received
spelling. You spelt it with an 'e' instead of an 'a.' You spelt it thus — 'hesitency.'
That is not the received way of spelling it?" A. "I believe not." Q. "Have you
noticed the fact that the writer of the body of the letter of the 9th of January, 1882 —
'^ It is just to add that on the next day the cross-examiner returned to the subject with success.
VOL. II. — 45 1707
§ 1368 EIGHT OF CR0SS-EXAMINATI02s^. [Chap. XLIV
the alleged forged letter — spells it in the same way? " A. " I heard that remark made
long since, and my explanation of my misspelling is that having that in my mind I got
into the habit of spelling it wrong. " Sir C. Russell. " Did your Lordships catch that last
answer?" The President. "Oh, yes." Q. "You say that your attention was called to
the fact a long time ago that in the alleged forged letter ' hesitancy ' was misspelt, and
you fancy that, your attention having been called to the misspelling, you so got into the
habit of spelling it in that way?" A. " I suppose so ; I heard so much discussion about
it. 1 never met anybody who spelt every word correctly, scarcely. (Laughter).'" Q. "It
had got into your brain? " A. " Yes, somehow or other. " Q. " Who called your atten-
tion to it?" A. "Several people ; it was a matter of general remark." Q. "Do you
think that but for the fact of your attention being drawn to the way in which it had been
spelt you would probably have spelt it rightly? " A. "Yes." Q. "You know that that
[above] letter purports to be dated the 9th of January, 1882; you have already told me
that this letter ( handing [another] letter to witness ) is yours ? " A. " Yes, that is right ;
that is my letter." Q. "But you did not become possessed of this valuable [Parnell]
letter, dated January 9, 1882, until ike summer of 1888 ; and this letter [of yours] is prior to
that. The wrong spelling had not got into your head then?" A. "No. I say that
spelling is not my strong point." Q. " Did you notice that in this letter yon spell ' hesi-
tency' in the same way?" A. "No, I did not." . . . Q. "How do you account for
that? Your brain was not injm-iously affected at that time? " A. " I cannot account for
it. " Q. " At all events you cannot account for it by that disturbance of your brain? "
A "No." IS
1, b'. Examples of the inutility of a cross-examination, in bringing out facts
which strengthen the toitness' credit, or answers which, otherwise give him a
personal victory :
1840, Law and Lawyers, I, 180: " Jeffreys, the afterwards notorious chief Justice and
chancellor, was retained in a trial in the course of which he had to cross-examine a
sturdy countryman clad in the habiliments of the laborer. Finding the evidence of this
witness telling against his client, Jeffreys determined to disconcert him. So he exclaimed
in his own bluff manner : ' You fellow in the leathern doublet, what have you been
paid for swearing ? ' The man looked steadily at him, and replied : ' Truly, sir, if you
have no more for lying than I have for swearing, you might wear a leathern doublet as
well as L'""
1869, Saurin v. Starr, as reported in O'Brien's Life of Lord RusseU, 86 (a Sister of
Mercy, being expelled for transgression of the rules of the convent, and suing for libel,
her counsel was Mx\, afterwards L. C. J., Coleridge): "Coleridge's case was that the
breaches of discipline were trivial, contemptible. He pressed Mrs. Kennedy [the matron]
on the point, asking what had Miss Saurin done. Mrs. Kennedy said, as an example,
that she had eaten strawberries. ' Eaten strawberries ! ' exclaimed Coleridge, ' what harm
was there in that ? ' 'It was forbidden, sir,' said Mrs. Kennedy, — a very proper answer.
' But, Mrs. Kennedy,' retorted Coleridge, ' what trouble was likely to come from eating
strawberries?' 'Well, sir,' replied Mrs. Kennedy, 'you might ask what trouble was
1' The very effective cross-examination of the cross-examining him. Part of the questioning
medical man, reported by Judge Daly, and the and the replies thereto were as follows : ' Have
memorable cross-examination of Majocchi, in you any occupation t ' ' No.' ' Don't you do any
Queen Caroline's trial (quoted ante, § 995), work of any kind ? ' ' No.' ' Just loaf around
belong here also. home?' 'That's about all.' ' What does your
" In this same entertaining volnme, other father do?' ' Nothin' much.' 'Doesn't he do
like anecdotes may be found at the same page, anything to support the family ? ' ' He does
Of the same order is the following : " Kx- odd jobs once in a while when he can get them.'
Governor Shaw, of Iowa, lately chosen to be ' As a matter of fact, is n't your father a worth-
Secretary Gage's successor at the head of the less fellow and a loafer ? ' 'I don't know, sir ;
Treasury Department, tells how he once heard you'd better ask him. He's sittin' over there
a small boy get the better of a lawyer who was on the jury.' " (Brooklyn Eagle, 1903.)
1708
§§ 1367-1393] THEOEY AND AET. § 1370
likely to come from eating apples ; yet we know that trouble did come from it.' The
answer floored Coleridge."
1878, Mr. W. V. N. Bay, Bench and Bar of Missouri, 162 : " The following story is
told by Edwards : On a trial at Auburn, New York, the counsel for the People, after
severely cross-examining a witness, suddenly put on a look of severity, and said : ' Mr.
Witness, has not an effort been made to induce you to tell a different story ? ' 'A differ-
ent story from what I have told ? ' ' That is what I mean.' ' Yes, sir ; several persons
have tried to get me to tell a different story from what I have told ; but they could n't.'
' Now, sir, upon your oath, I wish to know who those persons are.' ' Well, I guess you 've
tried as hard as any of 'em.' "
§ 1369. Other Rules concerning Cross-examination discriminated. We are
here concerned solely with the opponent's right to have cross-examination,
and with the rule which excludes testimonial statements not subjected to
cross-examination. Accordingly the inquiry is whether for a given statement
it has satisfied this rule, or not ; and for this purpose we are to pass in review
the various sorts of testimonial statements as to which such a question can
be raised.
From this inquiry, then, four others must be distinguished, with which
cross-examination in other aspects is concerned. (1) There is sometimes a
special liberality as to the kind of fact that may he asked for on cross-exami-
nation. This involves the principles applicable to the admissibility of differ-
ent sorts of evidence to impeach and discredit a witness. The real problem
there involved concerns the mode of proving certain facts or the kind of
facts admissible. Thus, certain facts are allowed to be proved by cross-
examination only, not by other witnesses ; moreover, even upon cross-exami-
nation certain kinds of facts are not allowed to be brought out. This subject
is elsewhere dealt with (ante, §§ 875-1144, particularly §§ 878, 990-996).
(2) In the order of presenting evidence, certain stages are to be observed ;
the direct examination comes first, then cross-examination, and so on.
Whether a certain fact may be asked about on cross-examination may involve
these rules as to the order of presenting evidence {post, §§ 1866-1900, par-
ticularly § 1885). With these rules we are here not concerned.
(3) Cross-examination is chiefly used to discredit the witness thus exam-
ined, and there is a rule which forbids the discrediting of one's own witness.
Accordingly, the inquiry often arises whether a witness is one's own or the
opponent's, — for example, whether one may cross-examine (i. e. discredit) a
witness called hy the opponent hut not examined, or called only to bring docu-
ments ; in cases of that sort, the rule against impeaching one's own witness
is involved {ante, §§ 909-918). With that rule we are here not concerned.
(4) Cross-examination, as well as direct examination, involves cer-
tain rules as to the manner of interrogation, — whether a question may
be leading, whether it may be repeated, and the like. These principles are
elsewhere dealt with, under Testimonial Karration (ante', §§ 768-788).
§ 1370. Cross-examined Statements not an Exception to the Hearsay Rule.
The Hearsay rule excludes testimonial statements not subjected to cross-
examination (ante, § 1362). When, therefore, a statement has already been
1709
§ 1370 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
subjected to cross-examination and is therefore admitted — as in the case of
a deposition or testimony at a former trial, — it comes in because the rule is
satisfied, not because an exception to the rule is allowed. The statement
may have been made before the present trial, but if it has been already sub-
jected to proper cross-examination, it has satisfied the rule and needs no
exception in its favor. This is worth clear appreciation, because it involves
the whole theory of the rule :
1834, Tindal, C. J., in Wright v. Tatham, 3 A. & E. 3, 22 (declaring that the testimony
of a deceased subscribing witness at a former trial is equivalent to calling him now and
thus obviates the necessity of calling another and living subscribing witness): "[The
examination of B. at the former trial] is evidence as direct to the point in issue, and as
precise in its nature and quality, as that of P. when called to the stand. . . . The evidence
resulting from the written examination of the deceased witness, in the former suit between
the same parties, is of as high a nature, and as direct and immediate, as the viva voce
examination of one of the witnesses remaining alive and actually examined in the cause."
1892, Mitchell, J., in Minneapolis Mill Co. v. R. Co., 51 Minn. 301, 315, 53 N. W. 639 :
" The admission of the testimony of a witness on a former trial is frequently inaccurately
spoken of as an exception to the rule against the admission of hearsay evidence. The
chief objections to hearsay evidence are the want of the sanction of an oath and of any
opportunity to cross-examine ; neither of which applies to testimony given on a former
trial."
§ 1371. Opportunity of Cross-ezamination, as equivalent to Actual Cross-
examination. The doctrine requiring a testing of testimonial statements by
cross-examination has always been understood as requiring, not necessarily
an actual cross-examination, but merely an opportunity to exercise the right
to cross-examine if desired. The reason is that, wherever the opponent has
declined to avail himself of the offered opportunity, it must be supposed to
have been because he believed that the testimony could not or need not be
disputed at all or be shaken by cross-examination. In having the opportunity
and still declining, he has had all the benefit that could be expected from
the cross-examination of that witness. This doctrine is perfectly well
settled :
1813, Ellenhorough, L. C. J., in Cazenove v. Vaughan, 1 M. & S. 6 : " The rule of the
common law is that no evidence shall be admitted but what is or might be under the
examination of both parties. But if the adverse party has had liberty to cross-examine
and has not chosen to exercise it, the case is then the same in effect as if he had cross-
examined. Here then the question is whether the defendant had an opportunity of cross-
examining."
1883, Rapallo, J., in Bradley v. Myrick, 91 N. Y. 296: " The witness . . . was subject
to cross-examination by the defendant's attorney, if he chose to exercise that right, or in
his absence by the Court. ... On every trial the opposing party has the power to cross-
examine. If he does not choose to appear and exercise this power, the consequences
should fall on him and not on his adversary."
1824, Mr. Thomas Starkie, Evidence, 97 : " To satisfy this principle, it is not necessary
that the party on whose authority the statement rests should be present at the time when
his evidence is used, in order that he may then be cross-examined ; it is sufficient if the
party against whom it was offered has cross-examined or has had the opportunity of doing
so, being legally called upon so to do when the statement was made. ... If the party
1710
§§ 1367-1393] OPPORTUNITY TO CROSS-EXAMINE. § 1373
might have had the benefit of a cross-examination in the course of a judicial proceeding,
it is the same thing as if he had actually availed himseU of the opportunity." *
But, though this doctrine is a practically inevitable corollary of the general
principle, it is worth while to note the possible consequences of its looseness,
as warnings against an inconsistent strictness shown in other applications of
the general principle. For, on the one hand, testimony already subjected to
a cross-examination, however thorough, by a former party not in privity with
the present opponent is excluded (post, § 1388); while, by the present doc-
trine, testimony never actually tested at all, in consequence of the careless-
ness, fraud, or incompetence of counsel, or of a privy in interest, is admitted, if
merely the opportunity so to test it had existed. On the whole both err in
attempting to create an inflexible rule. No doubt, usually, a mere opportunity
to cross-examine can be trusted as a suificient safeguard ; and no doubt,
usually, only a privy in interest would apply a sufficient cross-examination.
But room should be allowed for the exceptional instances which will certainly
occur. The trial Court should have a discretion.
§ 1372. Division of Topics. The subject of present inquiry is : What
classes of testimonial statements satisfy the rule requiring an opportunity of
cross-examination ? The various sorts of statements may be grouped as fol-
lows, according to the circumstance in which the rule fails to be satisfied :
1. The kind of tribunal or officer, before whom the statement was made,
as not furnishing a sufficient opportunity ; 2. The nature of the cause, as to
issues and parties, in which the statement was made, as not furnishing a suf-
ficient opportunity ; 3. The course of the examination itself, as furnishing
only an incomplete opportunity.
1. Kind of Tribunal or 0£Scer, as affecting Opportunity of Cross-examination.
§ 1373. General Principles ; Sundry Tribunals (Commissioners of Land-
titles, Pilotage, Bankruptcy, etc. ; Arbitrators). In general the principle is
clearly accepted that testimony taken before a tribunal not employing cross-
examination as a part of its procedure is inadmissible ; and, conversely, the
kind of tribunal is immaterial and the testimony is admissible if in fact cross-
examination was practised under its procedure :
1767, Buller, J., Trials at Nisi Prius, 241 : " From what has been said it is evident that
(as there can be no Cross-examination), a voluntary Affidavit is no Evidence between
^ 1693, Howard v. Tremaine, 1 Salk. 278 sufficient is clearly erroneous. Compare § 1377,
(depositions taken in perpetuam; the opponent post.
to the bill had refused in contempt to answer; The intimation in Twohig v. Learner, 48
depositions admitted); 1900, Small v. Reeves, Nebr. 247, 67 N. "W. 152 (1896) that it must
— Ky. — , 59 S. W. 515 (deposition voluntarily affirmatively appear, in using testimony at a
not cross-examined ; motion to allow cross-ex- former trial, that a cross-examination was had,
amination on the trial, held properly refused in is also erroneous ; for if cross-examination is
discretion); Mass. Pub. St. 1882, c. 169, § 34, an ordinary part of the proceedings before that
Rev. L. 1902, c. 175, § 36 (the Court may kind of tribunal, it must be assumed that an
exclude a deposition if the " adverse party faile"d opportunity for it was given, and an opportunity
without fault to attend the taking thereof "). was sufficient.
The ruling in U. S. v. French, D. C, 117 Compare the rulings post, 8 1378 (notice to
Fed. 976 (1902), that notice to attend is not attend).
17H
§ 1373 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
Strangers. ... So where there cannot be a Cross-examination, as Depositions taken be-
fore Commissioners of Bankrupts, they shall not be read in Evidence."
1825, Graham, B., in Attorney-General v. Davison, McCl. & Y. 167 : " The barrack com-
missioners were not required to summon the party for the purpose of examining the wit-
nesses ; and I have no doubt that they proceeded to examine the witnesses and to make
their report without giving notice to the other side ; and consequently, as the party had
no opportunity of attending or cross-examining the witness, this cannot be legal evi-
dence;" Garrow, B. : "In order to afiect any party by oral or written testimony, an
opportunity should be allowed to him of checking or correcting it by cross-examination."
1806, Thompson', J., in Jackson v. Bailey, 2 Johns. 20 : '' It is said that this rule ought
not to be extended to testimony taken before the Onondaga commissioners [to try land-
titles]. . . . Opportunity was given for cross-examining witnesses ; and it appears that
the title now in question was actually litigated before the commissioners."
1858, Eastman, J., in Oir v. Hadley, 36 N. H. 580 : " Neither is it necessary that the
former testimony should have been given on the trial of a cause in the exact technical
shape of an action. It is sufficient if the point was investigated in a judicial proceeding
of any kind, wherein the party to be affected by such testimony had the right of cross-
examination."
Accordingly, testimony has been received or rejected on this account, i. e.
because an opportunity for cross-examination was or was not a part of the
procedure, when given before bankrujotcy-commissioners,^ pilot-commissioners,^
marine hull-inspectors,^ barrack-commissioners,^ land-commissioners,^ county-
boards,^ registers,' and arbitrators.^
§ 1374. Testimony at Coroner's Inquest. In England, testimony at a
coroner's inquest had been frequently admitted before the Hearsay rule was
established.-' During the 1700s, this continued as a traditional exception.^
The dignity of the office was sometimes put forward as an explaining reason.
But the determining circumstance was after all the tradition, as well as the
early statutory provision authorizing the reporting of the testimony (though
not expressly making it admissible).^ The anomaly was in effect removed
in 1848 by Sir John Jervis' Act,* which provided for a cross-examination and
expressly made admissible in later proceedings the testimony thus obtained.
1 Ante 1668, Anon., Rolle's Abr. II, 679, pi. quotation supra); 1845, Bailey v. Woocls, 17 id.
9; 1747, Bade v. Lingood, 1 Atk. 203; 1787, 372; 1794, White v. Bisbing, 1 Yeates 400;
Fitch w. Hyde, Krby 258; 1810, Cox ». Pearee, 1824, Forney v. Hallagher, 11 S. & R. 203;
7 John. 298. 1850, McAdams v. Stilwell, 13 Pa. 90, 96.
2 1843, Cora. V. Kicketson, 7 John. 298. It was excluded in Jessup ». Cook (1798), 1
2 1896, Louisville Ins. Co. v. Monarch, 99 Halst. 438; but here the witness was not shown
Ky. 578, 36 S. W. 563. unavailable, under § 1402, post. '
* 1825, Att'y-Gen'l v. Davison, McCl. & Y. ^ 1666, Lord Morly's Case, Kelyng 55 ; 1692,
167, quoted supra; 1802, Davis v. Batty, 1 H. Harrison's Trial, 12 How. St. Tr. 852; cited
& J. 264, 282, semble. ante, § 1364.
» 1806, Jackson v. Bailey, 2 John. 20, quoted * 1754, Robins v. Wolseley, 2 Lee Eccl. 135,
supra ; 1797, Montgomery w. Snodgrass, 2 Yeates 421,442 (referring to the common law) ; 1790,
230 (deposition before a board of property, ex- R. v. Eriswell, 3 T. R. 707.
eluded; " the witness had been cross-examined," ' 1554, St. 1 & 2 P. & M. c. 13; 1555, St.
yet the board "are not vested with the powers 2 & 3 P. & M. c. 10; 1826, St. 7 Geo. IV,
essentially necessary to such a tribunal" as a c. 64. It is not certain whether St. 1 Wm. IV,
court) ; 1798, DeHaas v. Galbreath, ib. 315 c. 22 (1830) was to be regarded as applying to
(deposition before the same board, excluded). coroners ; but testimony Before the coroner cou-
6 1899, Dnnck v. Milwaukee Co., 103 Wis. tinned to be admitted: 1840, Sills „. Brown, 9
371, 79 N. W. 412. C. & P. 601, 603.
' 1899, Payne v. Long, 121 Ala. 385, 25 So. * St. U & 12 Vict. c. 42. It would seem
780. that the English Courts would now exclude
5 1858, Orr V. Hadlsy, 36 N. H. 580 (see testimony not thus taken under cross-exami-
1712
§§ 1367-1393] KIND OF TRIBUNAL. § 1375
In the United States, the question has been re-considered upon principle
and apart from the traditional English exception, and the proper conclusion
has been reached that the lack of cross-examination as an element in coro-
ner's procedure makes such testimony inadmissible ;
1842, Branson, J., in People v. Restell, 2 Hill N. Y. 297 : " It is said that depositions
taken by the coroner on holding an inquest are evidence, although the defendant was not
present when they were taken. This doctrine has been gravely questioned, and I am
strongly inclined to the opinion that it cannot be maintained. The great principle that
the accuser and the accused must be brought face to face and that the latter shall have
the opportunity to cross-examine can never be departed from with safety."
1858, Napton, J., in State v. Houser, 26 Mo. 436 : " It is true that there may be a few
cases ia which depositions taken before coroners in England, without any opportunity of
cross-examination, have been used against the accused, where the witness subsequently
died ; but the authority of such cases is questioned, even in that country, by their ablest
wi-iters on common law — Starkie, Roscoe, Russell — , and it is doubtful whether such
testimony would be now received. At all events, such testimony has never been permitted
in this country, and in England its admissibility has been altogether placed upon the pecu-
liar dignity and importance attached to the office of coroner ; and no such reasons exist
here." *
§ 1375. Testimony before Committing Magistrate or Justice of the Peace.
Similar considerations apply to proceedings before a committing magis-
trate or a justice of the peace. If there was under the procedure of that
official an opportunity of cross-examination, the testimony is admissible ;
otherwise not. There never has been any doubt on this point since the
establishment of the general doctrine (ante, § 1364) in E. v. Paine, in 1696,^
except in the special case of justices of the peace acting as committing mag-
istrates under the statutes of Philip and Mary {ante, § 1374). The statutory
provision for such examination, though not expressly making the testimony
admissible, was thought by some during the 1700s ^ to imply a special excep-
tion, as in the case of coroners' examinations. But even this supposed excep-
nation : 1830, U. v. Wall, Russell on Crimes, b. the trial of any person present at hia exami-
IV,c.IV,§3; 1866, R.w.Rigg,4F. &F.] 035. nation"); Del Rev. St. 1893, c. 33, § 4 (deposi-
° Accord: 1881, Sylvester v. State, 71 Ala. tion before a coroner, usable "on the trial of
17, 24 ; 1891, Jackson v. Crilly, 16 Colo. 103, 26 any person present at the examination " ) ; Tex.
Pac. 331 (death of a passenger; testimony of C. Cr. P. 1895, § 814 (quoted post, § 1375);
a deceased witness before the coroner, under 1894, Meyers v. State, 33 Tex. Cr. 204, 216,
cross-examination and in the presence of " the 26 S. W. 196 (before a coroner, the defendant
respective counsel," excluded, because it did not present and privileged to cross-examine ; ad-
appear " in whose behalf, in what capacity, nor mitted).
for what purpose the respective counsel were ^ 5 Mod. 165; quoted supra, aiao ante, § 1364.
present" ; unsound) ; 1885, Pittsburgh C. & St. ^ £. y. ;„ jj. v. Eriswell (1790), 3 T. R. 707,
L. R. Co. V. McGrath, 115 111. 172, 3 N. E. 439 per BuU'er, J. (the examination of a pauper, as
(depositions excluded) ; 1852, State v. Parker, to his place of settlement, before two justices of
7 La. An. 83, semhte; 1883, Insurance Co. v. the peace was offered at the Quarter Sessions;
Schmidt, 40 Oh. St. 112 (testimony excluded) ; the judges of the King's Bench were equally
1881, McLain v. Com., 99 Pa. 97; 1844, State divided, but the opinion of Lord Kenyon snbse-
v: Campbell, 1 Rich. L. 125 (O'Neall, J., diss ) ; quentlv prevailed in R. v. Ferryfrystone, 2 East
1888, State v. Jones, 29 S. C. 225, 227, 7 .54, 1801; Kenyon, L. C. J.: "Examinations
S. E. 296. Contra: 1881, State v. McNeil, 33 upon oath, except in the excepted cases, are of
La. An. 1333. Of course, if the coroner's no avail unless they are made in a cause or pro-
practice does include a right of cross-exami- ceeding depending between the parties to be
nation, e. g. by an accused person present, the affected by them and where each has an oppor-
testimony is admissible : Ark. Stats. 1894, § 758 tunity of cross-examining the witness ").
(testimony before a coroner, admissible " on
1713
§ 1375
EIGHT OF GROSS-EXAMINATION.
[Chap. XLIV
tion was by the 1800s repudiated in England.^ On principle, as has often
been pointed out, the question in all such cases depends simply upon whether
there was an opportunity of cross-examination :
1696, R. Y. Paine, 5 Mod. 163 : " It was the opinion of both Courts [King's Bench and
Common Pleas], that the depositions should not be given in evidence, the defendant not
being present when they were taken before the mayor and so had lost the benefit of a
cross-examination."
1817, Richards, C. B., in R. v. Smith, Holt N. P. 615, " observed that the statute did
not mention the prisoner's presence at all. Undoubtedly, however, the decisions estab-
lished the point that the pi-isoner ought to be present that he might cross-examine. But
here he had the advantage offered him and omitted to use it."
1835, Johnson, J., in State v. Hill, 2 Hill S. C. 609 : " If the accused is present and has
an opportunity of cross-examining the witness, the depositions, according to the rule, are
admissible. . . . We know, too, how necessary a cross-examination is to elicit the whole
truth from even a willing witness ; and to admit such evidence, without the means of ap-
plying the ordinary tests, would put in jeopardy the dearest interests of the community." *
§1376. Depositions; Effect of other Frinciples Disciiminated. (1) A deposi-
tion is not receivable unless taken by an officer or other person authorized by
3 1817, K. V. Smith, Holt N. P. 615,
quoted post ; affirmed in R. & R. 340 by all the
judges; accord, 1817, R. v. Forbes, Holt N. P.
599; 1838, R. v. Arnold, 8 C. & P. 621 ; 1838, R.
V. Errington, 2 Lew. Cr. C. 142, per Patteson, J.
(answering the objection that St. 7 Geo. IV, c.
64, s. 2, did not require tlie accused's presence).
The statutes in England now require an oppor-
tunity of cross-examination: 1848, St. 11 & 12
Vict. c. 42 ; 1867, St. 30 & 31 Vict. c. 35, § 61.
In R. V. Beeston (1854), 6 Cox Cr. 430, Jervis,
C. J., said: " [The statute of 11 & 12 Vict. c. 42]
adds a rule which the judges had previously
engrafted upon the old statutes of P. & M., that
there must be full opportunity of cross-exami-
nation ; " the statute was applied in (1886) R. u.
Griffiths, 16 Cox Cr. 46.
So also in Canada: Ont. Rev. St. 1897, c. 90,
§ 10 (on a trial at the general sessions, a depo-
sition taken before the magistrate at the origi-
nal hearing may be used if the accused was
present " and he, his counsel or solicitor, had
a full opportunity of cross-examining the wit-
ness"); Can, Crim. Code 1892, §687 (quoted
post, § 1380, note 3) ; Que.: 1854, R. v. Peltier,
4 Low. Can. 22.
* Accord: Ariz. St. 1903, No. 25, amending
Rev. St. 1901, P. C. § 765 (preliminary hearing
before a magistrate) ; 1883, Harris v. State, 73
Ala. 497; 1895, McNamara v. State, 60 Ark.
400, 30 S. VV. 762; Cal. (see the statutes and
cases cited post, § 1413) ; Del. Rev. St. 1893,
c. 97, § 1 8 (committing magistrate shall examine
the witnesses in the accused's presence) ; 1882,
Robinson v. State, 68 Ga. 833; 1883, Smith v.
State, 72 id. 115; 1899, Hardin v. State, 107 id,
718, 33 S. E. 700; 1880, State v. Wilson, 24
Kans. 189, 194; 1869, O'Brian v. Com., 6 Bush
563, 570; La. Rev. L. 1897, § 1439 (record by
the recorder of New Orleans, or a justice of the
peace, of testimony at fire inquest, taken on notice
to the occupant, owner, agent, or custodian of
property, admissible) ; 1895, State v. George, 60
Minn. 503, 63 N. W. 100; N. Y, C. Cr. P. 1881,
§ 8 (testimony before committing magistrate
admissible only if there was cross-exammation
or the opportunity) ; 1842, People v. Restell,
2 Hill 300; N. C. Code 1883, § 1157 (exam-
inations taken by a committing magistrate,
usable only if the accused was present and had
an opportunity to hear and cross-examine) ; 1 847,
State V. Valentine, 7 Ired. 225, 226; 1865,
Howser v. Com., 51 Pa. 338 ("notwithstanding
the above-named statute [2 & 3 P. & M. c. 10]
had been extended to Pennsylvania, it was dis-
placed by our Constitution, and no ex parte testi-
mony could be given against a prisoner in a
capital case") ; 1876, Johnson v. State, 1 Tex.
App. 333, 338 (good opinion) ; Tex. C. Cr. P.
1895, § 814 (depositions before an "examining
Court or jury of inquest," admissible if defend-
ant was present and had the privilege of cross-
examination) ; 1851,U. S. w Macomb, 5 McLean
286 (justice of the peace) ; 1845, State v. Hooker,
17 Vt. 658, 669 (magistrate); 1897, Pooler v.
State, 97 Wis. 627, 73 N. W. 336 (depositions
of accomplices excluded, because the defendant
was not present at their examination). In the
United States the only instance in which to-
day any statutory exception seems to have
been made is that of the examination of the
complainant in bastardy ; but it is not clear that
an examination taken in the defendant's ab-
sence and without some sort of notice given
him {post, §§ 1378, 1382) would be admissible
unless expressly so declared by the statute:
Del. Rev. St. 1893, c. 77, § 16 (the mother's
deposition in a bastardy charge may be taken
in the defendant's absence if the constable
returns " that he cannot be found ") ; N. J.
Gen. St. 1896, Bastards, § 16 (examination of
the mother in a bastardy charge may be in the
defendant's absence, unless ne demands the
contrary) ; compare the statutes quoted post,
§ 1417.
1714
§§ 1367-1393] DEPOSITIONS. § 1377
law. It can be conceived that cross-questions put informally and recorded
in writing might be as effective as a formal cross-examination. But cross-
examination in its proper scope signifies a probing and testing under certain
safeguards and opportunities for compelling answers, which can exist only in
a formal proceeding governed by a settled procedure and enforced by vested
authority ; hence, that cross-examination which satisfies the rule must be a
cross-examination, if not before a regular judge or magistrate, at least before
an officer or other expressly authorized person proceeding according to pre-
scribed forms. In what concerns the kind of officer or other person thus
authorized, the question involved is one of the constitution of Courts and
their officers.^ Statutes have provided a variety of ways, more or less formal,
in which depositions may be taken. So far as the admissibility of a deposi-
tion depends upon its being taken by an authorized person, the question is
one of judicial machinery, the organization of Courts, and is beyond the
present purview.
(2) By Chancery practice, common-law practice, and statutes, a preliminary
order to authorize the taking of a deposition is usually obtainable only upon
certain conditions, — the illness or the impending departure of the deponent,
and the like. But statutes have often removed these conditions in certain
classes of cases. This process of securing in advance the evidential ma-
terial for a trial is a part of the preliminary procedure of courts, — just
as is the process of obtaining discovery from an opponent. These questions of
preliminary procedure are without the present purview.^ The admissibility
of a deposition already taken is the limit of the scope of these investigations.
(3) When a deposition is offered, the principle of Confrontation requires
that the witness' personal attendance be shown impracticable before the depo-
sition may be used. The conditions thus required are dealt with under that
principle (post, §§ 1401-1418).
(4) The document offered as a deposition is the testimony of the deponent
in writing. Testimony by deposition can be only in writing, not oral, and
the writing, moreover, must be made and transmitted according to a detailed
mode prescribed by statute or by practice. So far as the manner of interro-
gation is involved, the principle is that of the Mode of Testimonial Narration,
already dealt with (ante, §§ 799-805).3
§1377. Same: General Principle: Opportunity of Cross-examination re-
quired. The principle of the Hearsay rule, as applied to the use of a depo-
sition, is precisely the same as for testimony obtained in other tribunals,
in the instances already reviewed (ante, §§ 1373-1375). The mere speaking
under oath is nothing; the essential condition is that the person against
whom the sworn statement is offered should have had an opportunity to
'■ For the officers having power to compel ' For the conclusiveness of the magistrate's re-
answers, see post, § 2195. port of testimony, see ante, §§ 1326, 1349. For
^ The statutes bearing on the subject may be the use of the magistrate's report without calling
found from the citations collected post, §§ 1380- the magistrate in person, see post, § 1667. For the
1383. For the statutes grsmtmg discovery from authentication of a deposition or magistrate's re-
an opponent, see post, §§ 1856, 1859. port, see post, §§ 1676, 1681, 2164.
1715
§ 1377 EIGHT OF CEOSS-EXAMINATION'. [Chap. XLIV
cross-examine the deponent (ante, § 371). This is universally conceded as a
common-law principle :
1763, Buller, J., Trials at Nisi Prius, 240 : " If the AYitness be examined de bene esse,
aud, before the coming in of the Answer, the Defendant not being in Contempt, the Wit-
ness die, yet his Deposition shall not be read, because the opposite party had not the
Power of Cross-examination, and the nile of the Common Law is strict in this, that no
Evidence shall be admitted but what is or might have been under Examination of both
Parties."
1777, Mansfield, L. C. J., in Goodright v. Moss, Cowper 592 : " [As to] offering a deposi-
tion or an answer in evidence against a person not a party to the original suit. That
cannot be done for this reason, because such person has it not in his power to cross-
examine."
1790, Kenyan, L. C. J., in R. v. Eriswell, 3 T. R. 707: "Examinations upon oath,
except in the excepted cases, are of no avail unless they are made in a cause or proceeding
depending between the parties to be affected by them and where each has an opportunity
of cross-examining the witness. . . . [In this case the deposition] was ei/iarte, obtained at
the instance of those overseers whose parish was to benefit by it, and behind the backs
of the parish against whom it has now been used, without having an opportunity of
knowing what was going on or attending to have the benefit of a cross-examination. I
regard the question as of the last importance and as putting in danger the law of evi-
dence in which every man in the kingdom is deeply concerned."
1811, Lawrence, J., in Berkeley Peerage Case, i Camp. 412: "A deposition is considered
a partial representation of facts, as to all persons who have no opportunity of bringing
out the whole truth by cross-examination."
1863, Per Curiam, in Waierson v. Seat, 10 Fla. 333 (after pointing out that no notice
of a deposition had been given to the opponent, "so as to enable him to cross-interro-
gate " ) : " We can conceive of no circumstances under which the notice may be dispensed
with. The plainest principles of natural justice, as well as our statute, require it. It is
stated by one of the earliest writers i (to euforee the rule on the subject) that even the
Almighty would not proceed to pronounce sentence against our great ancestor without
giving him notice, and therefore first called to him, ' Where art thou, Adam ? '" 2
§ 1378. Same : Notice and Sufficient Time ; Attendance cures Defective
Notice. The opportunity of cross-examination involves two elements, (1)
notice to the opponent that the deposition is to be taken at the time and
place specified, and (2) a sufficient interval of time to prepare for examination
and to reach the place.
(1) Where a deposition is taken for pending litigation, the parties to whom
notice is to be given are definitely ascertainable, and the requirement of it,
apart from statutory exceptions, is indispensable.^ But where a deposition is
taken with a view to use in litigation not yet begun — in perpetuam memo-
riam — , it may not be possible to ascertain the names of all the interested
^ The learned judge's reference here is prob- But the principle existed: 1859, Eehden v.
ably not, as might be imagined, to Genesis III, Wesley, 26 Beav. 434 (Tlomilly, M. R. . " This
9, but to Forfcescae, De Laudibus Legum Aug- is clear, that if yon intend to use the answer of
lise(1470),wherethefamouschief justice alludes one defendant against another defendant, the
to the above passage in Genesis. lattermust have the rightof cross-examination").
' The rule in Chancery was not so strict, ^ See the statutes' and cases post, §§ 1380-
presutnably because {ante, § 1367, note 5) cross- 1382. Apart from statute, the notice may be
examination in Chancery was almost futile: oral: 1847, Milton v. Rowland, 11 Ala. 732, 736
1767, Buller, Nisi Prius, 240; 1827, Story, J., ("the form or manner of notice is of no impor-
in Gass v. Stinson, 3 Sumner 98, 104 (examin- tance, when one in point of fact is proved"),
ing the authorities) ; 1842, St. 15 & 16 Vict. c. 86.
1716
§§1367-1393] DEPOSITIONS j NOTICE. §1379
parties, and the question may thus arise whether a deposition so taken may
be used against a person who never received any notice and could not by
diligence have been notified. This question does not seem to have been ju-
dicially decided; 2 but, so far as a statute has authorized a mode of notice by
advertisement or the like, it would seem that this by implication sanctions
the use of such a deposition, as a necessary deviation from the strict require-
ments of principle.
(2) The requirements as to the interval of time are now everywhere regulated
by statute (posi, §§ 1380-1383), and the rulings in regard to the sufficiency
of time are thus so dependent on the interpretation of the detailed prescrip-
tions of the local statutes that it would be impracticable to examine them
here.^ But whether or not the time allowed was supposably insufficient
or was precisely the time required by statute, the actual attendance of the
party obviates any objection upon the ground of insufficiency, because then
the party has actually had that opportunity of cross-examination {ajite,
§ 1371) for the sole sake of which the notice was required.* On the other
hand, the failure of the opponent to attend, after sufficient notice, leaves it
still true that there has been the necessary opportunity,^ which is sufficient
on the same principle (ante, § 1371).
§ 1379. Same : Plural Depositions at Same Time and Different Places. The
principle requiring an opportunity of cross-examination is clearly violated in
the case of plural depositions appointed by one party for the same time at
different places, so that it becomes impossible for the opponent to attend in
person for cross-examination at both. Here he is deprived of the opportunity
for cross-examination in one at least of the depositions :
1881, Gray, C. J., in Cole v. Hall, 131 Mass. 90: "The manifest design of the Legislar
ture is that the adverse party shall have opportunity to attend in person, or at least by
his attorney duly instructed in the cause, to cross-examine the witnesses. ... If deposi-
tions are taken at different places at or near the same time, it is ■within the power of the
court, when the depositions are offered in evidence, to suppress the depositions of those
witnesses whom the adverse party has thereby been deprived of reasonable opportunity to
* See the statutes and cases cited post, § 1383. Nevan w. Roup, 8 la 207, 210 ; 1859, Mumma v.
3 See some of them cited post, § 1381 ; see McKee, 10 id. 107, 110, semble ; 1811, Talbot v.
also Wade on Notice, §§ 1221-1252; Foster, Bradford, 2 Bibb 316; 1888, Md. Pub. Gen. L.
Federal Practice, 3d ed., §§ 286-290. art. 35, § 28 ; 1868, State v. Bassett, 33 N. J. L.
* 1862, Aicardi v. vStrang, 38 Ala. 326, 328 26,31; 1860, McCormick v. Irwin, 35 Pa. Ill,
(applied to written interrogatories) ; 1849, Cald- 118; 1862, Cameron u. Cameron, 15 Wis. 1, 5.
well V. Mc Vicar, 9 Ark. 418, 422 (" Where the Contra: 1861, Hunt v. Gaslight Co., 1 All. 343,
party appears, by himself or attorney, and makes 348 (on the fallacious ground that " it was im-
his appearance, cross-examines, objects to a ques- possible for them [the opponent] to say with
tioD, to the competency of the witness, or does certainty that the deposition would not be ad-
any substantive act connected with the taking mitted " ; this assumes that the law could not
of the depositions, and it so appears in the depo- be known beforehand, — an assumption which
sitions regularly certified, the party will not at would confuse all legal rules).
the hearing of the cause be allowed to object For the time of objections to competency and
that no legal notice had been given"); 1858, relevancy, see ante, %% 18,486,586.
Jones V. Love, 9 Cal 68, 70 (" Having appeared " Cases cited ante, § 1371 ; and the following :
and cross-examined, it was too late afterwards 1895, Moore v. Triplett, — Va. — , 23 S. E. 69
to make the objection " of short notice) ; 1895, (but in the special class of statutory proceedings
Ryan !>. People, 21 Colo. 119, 40 Pac. 777; 1850, here covered, i. e. sale of infant's lands, etc.,
Greene Co. v. Bledsoe, 12 111. 267, 271 ; 1844, under Code §§ 2435, 2619, actual presence waa
Connersville v. Wadleigh, 7 Blackf. 102, 104; held necessary).
1847, Doe V. Brown, 8 id. 443, 444; 1859,
1717
1 1379 EIGHT OF CEOSS-EXAMINATION. [Chap. XLIV
cross-examine. ... In this, as in many other matters concerning the introduction of
evidence, much must be left to the discretion of the judge presiding at the trial."
1895, Allen, J., in Evans v. Rothschild, 54 Kan. 747, 39 Pac. 701 : " Where testimony
is taken by deposition, it is in one sense a part of the trial of the cause, and the only
chance given to the opposing party to confront the vpitnesses whose depositions are taken
under the notice is to attend before the officer who takes them. The only opportunity to
apply the tests necessary to correct errors or detect falsehood in the statements drawn out
on direct examination is that afforded by cross-examination at the same time. A party
to an action has a right, if he deems it necessary, to be personally present when depositions
are being taken affecting his interests. He is not required to employ a multitude of at-
torneys to pi'otect his interests at different places on the same day, nor does the fact that
he chooses to intrust his interests to the care of an attorney (other than the one who tries
the case for him) at one place, require him or his principal counsel to attend on the same
day at another place."
Under such circuiustaaces, that deposition should be suppressed for which
the opponent lost the opportunity of cross-examination, i. e. he is allowed to
attend either, and the one not attended is excluded.^ If in fact he succeeds
in having representatives at both, then both become admissible, for there has
been for both an actual opportunity of cross-examination.^ But where he
refrains from attending either, he practically waives the opportunity (ante,
§ 1371) as to both, and therefore both are admissible.* The policy of exclud-
ing both, merely because the appointments are incompatible,* cannot be sup-
ported.
§ 1380. Same : English and Canadian Statutes. The requirement of an
opportunity for cross-examination has been almost invariably preserved in
its integrity in the statutory regulation of the subject. The few deviations
have occurred chiefly in provisions respecting notice to absent or unknown
parties, and respecting the discretion that may properly be allowed a trial
Court in making exceptions. This statutory regulation became necessary
for the main purpose of vesting the common-law Courts with that power
which, with singular ineptitude, they conceived themselves to lack or to be
somehow prevented from exercising with due freedom, — the power of authoriz-
ing depositions to be taken before appointed officers.^ The statutes conferring
the power have thus usually also specified the requirements to be observed
1 1861, Hankinson v. Lombard, 25 111.573; means are used to prevent attendance, the Court
1879, Collins v. Richart, 14 Bush 625; 1897, " may reject them ^'). The following ruling is
Cross V. Cross, — Ky. — , 41 S. W. 272 (notice sound : 1893, Wytheville B. & I. Co. v. Teeger,
to take on the same day that the opponent was 90 Va. 277, 282, 18 S. E. 195 (notice on same
taking another in the same suit on a previous day of deposition in another State in another
notice, insufficient); 1867, Fant v. Miller, 17 suit in which proponent of present deposition
Gratt. 187,226; and cases quoted su;»'a. was not a party though his counsel was eu-
2 1878, Latham v. Latham, 30 Gratt. 340. gaged; admitted).
' 1879, Hay's Appeal, 91 Pa. 268; see Blair '■ A deposition could be authorized by the
V. Bank (1850), 11 Humph. 88. cnmbrous methods either of the personal attend-
* la. Code 1897, §4688 ("if notices are given ance of a judge of the Court (1606, Matthews v.
in the samecase by the same party of the taking Port, Comb. 63), or of a postponement of trial
of depositions at different places on the same till the opponent consented (1774, Mansfield,
day, they shall be invalid"); 1815, Waters' L. C. J., in Mostyn v. Fabrigas, Cowp. 161,
Heirs v. Harrison, 4 Bibb 89 ; 1 856, Scammon v. 174); but otherwise the party must sue out a
Scammon, 33 N. H. 60; Me. Pub. St. 1883, commission in chancery (1827, L. C. Eldon, in
c. 107, § 14 (if notice of two depositions at the Macaulay v. Shackell, 1 Bligh N. s. 96, 119,
same time and place is given, or if deceptive 131).
1718
§s 1367-1393]
DEPOSITIONS; NOTICE.
§ 1380
in giving notice to the opponent. In England this statutory reform came
piecemeal. The chief enactments have been five : (1) in 1830-31, St. 1 Wm.
IV, c. 22, giving to all superior Courts the power of authorizing depositions
both abroad and at home;^ (2) in 1867, St. 30 & 31 Vict. c. 35, § 61, extending
the power to criminal proceedings for indictable offences ; (3) under the Judi-
cature Act of 1873, St. 36 & 37 Vict. c. 66, the Eules of Procedure, No. 36 ;
(4) under the Judicature Act of 1875, St. 38 & 39 Vict. c. 77, § 17, the Eules of
the Supreme Court (Order XXXVII), superseding the foregoing Eules and
covering the same ground; and (5) in 1883, the Eules of the Supreme Court
(Order XXXVII), made under authority of the same Act (c. 77, § 17), and
superseding all prior civil regulations.^ Under the statute of 1830-31, the
^ This was narrowly construed aa applying
to civil cases only : 1847, R. v. Upton St.
Leonards, 10 C. B. 834.
^ The relevant English Knles of 1883 are as
follows :
Rules of the Supreme Cocbt, 1883 (under
38 & 39 Viet. c. 77, § 17), Okdek XXXVII :
"I. Evidence Generally: 1. In the absence of
any agreement between the solicitors of all
parties, and subject to these Rules, the witnesses
at the trial of any action or at any assessment
of damages shall be examined viva voce and in
open court, but the Court or a Judge may at
any time for sufficient reason order that any
particular fact or facts may be proved by
affidavit, or that the afBdavit of any witness
may be read at the hearing or trial, on such
conditions as the Court or Judge may think
reasonable, or that any witness whose attend-
ance in court ought for some sufficient cause to
be dispensed with, be examined by interroga-
tories or otherwise before a commissioner or
examiner; provided that where it appears to
the Court or Judge that the other party bona
fide desires the production of a witness for cross-
examination, and that such witness can be pro-
duced, an order shall not be made authorising
the evidence of such witness to be given by
affidavit." (This first appeared in the Rules of
1873.)
Order XXXVIII : " Affidavits! and Deposi-
tions : 1. Upon any motion, petition, or summons
evidence may be given by affidavit ; but the
Court or a Judge may, on the application of
either party, order the attendance for cross-
examination of the person making any such
affidavit.'' (This was contained in substance in
tlie Rules of 1873.)
Order XXXVII, Rule 20: "Any party or
witness having made an affidavit to be used or
which shall be used on any proceeding in the
cause or matter shall be bound, on being served
with such subpoena [from the opposite party],
to attend before such officer or person [ap-
pointed by the Court] for cross-examination."
(This first appears in the Rules of 1883.)
Order XXXVII : " II. Examination of
Witnesses. . . . 5. The Court or a Judge may, in
any cause or matter where it shall appear neces-
sary for the purposes of justice, make an order
for the examination upon oath before the Court
or Judge or any officer of the Court, or any
other person, and at any place, of any witness
or person, and may empower any party to any
such cause or matter to give such deposition in
evidence therein on such terms, if any, as the
Court or a Judge may direct." (This first ap-
peared in the Rules of 1875.) "6. An order
for a commission to examine witnesses shall be
in the Form No. 36 in Appendix K." (The
form provides fully for notice and cross-examina-
tion.) " 6 a. If in any case the Court or a
Judge shall so order, there shall be issued a
request to examine witnesses in lieu of a com-
mission." (This is the mode usually employed
for foreign countries and sometimes for India
and the Colonies ; the form, No. 37, provides
for notice and cross-examination.) "10, 11.
Where any witness or person is ordered to be
examined before any officer of the court, or
before any person appointed for the purpose,
. . . the examination shall take place in the
presence of the parties, their counsel, solicitors,
or agents, and the witnesses shaU be subject to
cross-examination and re-examination." (The
provisions of 6, 6 a, 10, and 11 first appear in
the Rules of 1 883 ; though they may be con-
sidered as an adaptation of the provisions of the
Chancery Practice Act of 1852, St. 15 & 16 Vict,
c. 86.)
Canada: Dom. Rev. St. 1886, c. 135, § 99
(Exchequer and Supreme Courts) ; Crim. Code
1892, § 683 (commissions out of Canada; rules
to conform to those of civil trials, " as nearly
as practicable ") ; § 686 (depositions of sick
persons ; reasonable notice and a full opportunity
of cross-examination is required) ; § 687 (deposi-
tion at a preliminary investigation, if it is proved
that it was " taken in the presence of the
accused, and that he, his counsel, or solicitor,
had a full opportunity of cross-examining the
witness ") ; St. 1900, c. 46 (amends Crim. Code
1892, § 687, by omitting "he" before "his
counsel"); B. C. Rev. St. 1897, c. 52, § 134
(provisions for notice) ; Man. Rev. St. 1902,
c. 40, Rule 464 (depositions admissible on terms) ;
R. 469 (cross-examination of affiants) ; R. 486,
R. 492 (testimony taken on commission), c. 38,
§ 135 (judge may require cross-examination of
affiants, in county Courts) ; N. Br. Consol. St.
1877, c. 37, § 185 (provisions for notice) ; c. 53,
§ 30 (St. John City Court); c. 37, §§ 185, 188,
(Supreme Court); c. 49, § 77 (Supreme Court
in equity) ; New/. Consol. St. 1892, c. 50, Rules
1719
§ 1380
RIGHT OP CROSS-EXAMINATION.
[Chap. XLIV
mode of taking depositions was left to the discretion of the Court ; but it
does not appear that any change of practice actually ensued. Under the final
Rules of 1883, the essential requirement of an opportunity for cross-examina-
tion was safeguarded, while at the same time a certain just amount of flexi-
bility was provided for; so that the English system now represents a
thoroughly practical and successful regulation of the subject. In brief, it
deals with the requirement of an opportunity of cross-examination as follows :
(a) Depositions must be taken subject to cross-examination before the officer
appointed ; (6) within certain limits the Court has a discretion to accept ex
parte sworn statements ; but even in these cases the opponent is entitled to
a subsequent cross-examination of the deponent before decision rendered.
These Rules have been adopted in substance in several of the Canadian
jurisdictions.
The practice of English Courts since the adoption of these rules indicates
a disposition to preserve the principle of cross-examination so far as possible,
and to use the discretionary powers of dispensation as little as possible.*
§ 1381. Same: XT. s. Federal Statutes. In the two types of ordinary de-
position dealt with in the Federal statutes (depositions de bene esse, i. e. on an
order for conditional taking, and dedimus potestatem, i. e. a special commis-
sion), the principle is preserved that there must have been an opportunity of
cross-examination.^ By the original act of 1789 (c. 20, § 30), regulating the
of Court 33, par. 10 (provisions for notice) ;
N. Sc. Rev. St. 1900, c. 1.59, § 41 (municipal
Courts) ; Rules of Court 1900, Ord. 35, K. 3 B,
R. 10 (prorisions for notice) ; N. W. Terr.
Consol. Ord. 1898, c. 21, Rule 263 (like Out.
Rules, § 483); Rules 271, 272 (opportunity of
cross-examination provided) ; Ont. Rev. St. 1897,
c. 60, § 143 (provisions for notice) ; Rules of
Court 1897, § 483 (the Court may autliorize
testimony by affidavit or before an examiner ;
" but where "the other party bona fide desires the
production of a witness for cross-examination,
and such witness can be produced," no af-
fidavit shall he authorized) ; § 485 (depositions:
rules assimilated to the practice for discovery
from parties) ; §§ 501-504 (rules for com-
missions) ; P. E. 1. St. 1887, c. 4, §§ 2-4 (rules
for notice).
Compare the statutes admitting affidavits
(post, § 1710).
* On applications for the issuance of an
order to take a deposition, the question whether
it shall issue is entirely different from that of
the admissibility of a deposition when taken, as
pointed ont post, § 1401. But sometimes a rul-
ing on such an application may involve a ruling
that such a deposition, even if taken, would be
inadmis:.ible; such a ruling was tlie following,
in whicli the requirement of cross-examination
is insisted upon as indispensable: 1882, Crofton
V. Crofton, L. R. 20 Ch. T). 760 (Fry, J., re-
fused to issue a commission to examine a
witness in France, because the mode of ex-
amination there, which would control, left the
putting of questions to the judge's discretion :
" He is a witness who ought to be subjected to
1720
the most drastic cross-examination, and ... I
decline to delegate my discretion to any other
tribunal. If under the commission the witness
would have been subject to cross-examination
in the ordinary way, I should have thought it
desirable to issue it ").
1 U. S. R«v. St. 1878, § 863 (for depositions
de bene esse, " reasonable notice must first be
given in writing " ; and " whenever, by reason
of the absence from the district and want of an
attorney of record or other reason, the giving
of the notice herein required shall be imprac-
ticable, it shall be lawful to take such deposi-
tions as there shall be urgeut necessity for
taking, upon such notice as any judge author-
ized to hold courts in such circuit or district
shall think reasonable and direct") ; § 866 (for
depositions by dedimus potestatem " to prevent a
failure or delay of justice," the provisions of
the above section " shall not apply ").
Rules of the Federal Supreme Court, No. 13
(for new evidence in miiritime cases before the
Supreme Court, no commission shall issue ex-
cept on notice and a copy of interrogatories) ;
Federal Equity Rules, No. 67, as amended 1893
( rules prescribed for notice and cross-examination
in taking testimony by commission) ; No. 68
(testimony by deposition under statute ; " if no
notice is given to the adverse party," he shall
upon motion " he entitled to a cross-examina-
tion of the witness, either under a commission
or by a new deposition under the Acts of Con-
gress, if a Court or a judge thereof shall under
all the circumstances deem it reasonable ") ;
No. 70 (for commissions before issue reached,
notice is required).
§§ 1367-13931
DEPOSITIONS; NOTICE.
§ 1382
former class, the notice and opportunity to cross-examine was not necessary if
the opponent or his attorney was not within one hundred miles of the place ;
but this defect is remedied (E. S. § 863) in the present statute. The statute
authorizing the latter class of depositions (R. S. § 866) has also been con-
strued to require notice and opportunity for cross-examination ; ^ but the terms
of the statute are so complicated with local State usage that it is not possible
to say that all depositions offered in Federal Courts must be tested by that
requirement.**
§ 1382. Same : U. S. Statute. The requirement of notice and opportunity
to cross-examine has been generally preserved in all the various State
statutes. Only a few deviations are found here and there.^
^ For the manner and time of the notice
nnder these statutes, see the following: 1897,
American E. N. Bank v. First N. Bank, 27
C. C. A. 274, 82 Fed. 961 (reasonableness de-
pends on the circumstances of the case) ; 1900,
U. S. Life Ins. Co. v. Ross, 42 C. C. A. 601, 102
Fed. 722 (notice to a corporate agent to accept
service after the revocation of his authority but
before appointment of another, held good) ; 1901,
Foster, Federal Practice, 3d ed., §§ 286-290;
Gould and Tucker, Notes on Revised Statutes,
§§ 863, 866.
^ The situation is as follows: The dedimus
poteslatem section (§ 866) prescribes that " com-
mon usage" shall control the mode. This
" common usage " was for some time construed
to permit the adoption of local statutory and
common-law modes: tJ. S. v. Cameron, 15 Fed.
797 (McCr.iry, J., 1883) ; Warren v. Younger,
18 id. 859 (McCormick, J., 1884). Contra,
Randall v. Venable, 17 id. 162 (Turner, J.,
1884). Then in Ex parte FLsk, 113 U. S? 725,
5 Sup. 724 (1884), the Supreme Court refused
to recognize such a construction for the purpose
of enforcing an order to take under a peculiar
State law, and intimated, though expressly re-
serving the point, that the deposition, had it
been already taken and were it offered in evi-
dence, would be rejected on the same grounds.
Finally, by St. 1892, c. 14, the Federal lower
Courts were authorized to take (and presumably
to admit in evidence) depositions according to
the mode allowable in the State of the trial ;
thus apparently annulling the effect of Ex parte
Fisk, supra. The doubt thus remained whether
the new statute, going beyond the dedimus
potestatem section (§ 866), operates also to relax
the detailed requirements of § 863 concerning
de bene depositions. Compare the statutes cited
post, § 1410, and the rule as to the applicability
of State law in Federal Courts [ante, § 6).
* In the following list a few of the judicial
rulings in regard to the requirement of notice
have been placed after the respective statutes ;
where the requirement is not merely of " reason-
able notice," but of notice in a specific way, the
result depends almost entirely upon the wording
of the local statute ; where not otherwise stated,
the statute requires notice and prescribes details ;
compare here the statutes cited post, § 1413
(former testimony) and § 1710 (affidavits) ; Ala.
Code 1897, §§ 1834-1836 ; §§ .5290, 5293 crim-
inal cases) ; 1895, Wisdom v. Reeves, 110 Ala.
418, 18 So. 13 (no notice necessary in proceed-
ings nnder § 2803) ; Alaska C. C. P. 1900, §§ 646,
650, 652, 657 (like Or. Annot. C. 1892, §§ 817,
821, 823, 828) ; Ariz. P. C. 1887, §§ 2069, 2091
(depositions taken by accused) ; Rev. St. §§ 1834-
1837 (civil cases) ; Ark. Stats. 1894, §§ 2987 ff.
2999; § 2U7 (rule applied to depositions taken
for accused in criminal case) ; § 7414 (no notice
required of attesting witness' deposition for will-
probate, unless contested) ; Cal. P. C. 1872,
§§ 1338, 1339, 1353, as amended in 1880 (de-
fendant's depositions in criminal case) ; § 882,
as amended in 1878 (prosecution's depositions) ;
C. C. P. 1872, §§ 2024, 2031, 2033 (civil cases;
in 1901, § 2033 of the original code was omitted
by Commissioners' amendment, and its sub-
stance was added to §§ 2021, 2030; for the
validity of these amendments, see ante, § 488) ;
Colo. Const. 1876, art. II, § 17, Annot. Stats.
1891, § 4833 ("reasonable notice" required in
criminal cases) ; C. C. P. 1891, §§ 342, 349, 354
(in general) ; § 2300 (before irrigation-commis-
sioners) ; §§ 2650, 2651 (before justices) ; Conn.
Gen. St. 1887, § 1068 (in general); § 1074
(commission to take a deposition of one in
military or naval service) ; D. C. Comp. St.
1894, c. 71, §§ 27-29 (deposition taken by de-
fendant in a criminal case) ; c. 70, § 33 (deposi-
tions of will-witnesses) ; c. 20, § 2 (depositions in
civil causes ; reasonable notice required ; when
it is " impracticable," and there is " urgent neces-
sity," such notice as judge shall think to be
"reasonable and direct"); Code 1901, § 132
(notice of commission to take testimony of at-
testing witnesses to a will need not be given,
unless the probate is opposed) ; §§ 1058, 1060 (in
general) ; Fla. Rev. St. 1892, §§ 1124, 11.34 (in
general); §§ 2913 fE. (deposition for accused
person) ; St. 1899, c. 4727, § 2 (in general) ; Ga.
Code 1895, §§ 5299-5301 (commissions on inter-
rogatories) ; § 5313 (depositions without com-
mission) ; Haw. Civil Laws 1897, §§ 1379-1382
(domestic depositions) ; Ida. Rev. St. 1887,
§§ 6061, 6067, 6069, 7588, 8163, 8182 (in gen-
eral); St. 1899, Feb. 10, §§ 2, 31 (in general);
III. Rev. St. 1874, c. 51, §§ 24-28, c. 148, § 4
(in general); Ind. Rev. St. 1897, §§ 428-430
(in general); St. 1899, c. 74 (probate proceed-
ings) ; la. Code 1897, §§ 4687-4689, 4693-4699
(in general) ; § 5222 (accused's depositions) ;
Kan. Gen. St. 1897, c. 95, §§ 363, 364, c. 102,
1721
§ 1383
RIGHT OF CROSS-EXAMINATTOX.
[Chap. XLIV
§ 1383. Same : Depositions in Perpetuam Memoriam. The principle requir-
ing notice and opportunity of cross-examination applies equally to depositions
taken in view of future litigation, in perpetuam memoriam ; and it is pre-
served in the statutes as well as enforced in the judicial rulings.^ Where a
§ 171 (in general) ; 1893, Peterson v. Albach,
.51 Kan. 150, 32 Pac. 917 (time of notice) ; Ki/.
Stats. 1899, § 4855 (for depositions of attesting
will-witnesses, notice required only to tlie party
contestant); C. Cr. P. 1895, § 153 (defendant's
depositions in criminal cases) ; C. C. P. 1895,
§§ 566-569 (in general); La. Rev. L. 1897,
§§ 615, 621, C. Pr. 1894, §§ 425-430, 438 (in
general); St. 1896, No. 124, Wolff's Rev. L.
278 (criminal cases) ; 1903, State v. Jackson,
HI La. 343. 35 So. 596 (depositions taken for
the prosecution under St. 1896, No. 124, ad-
mitted; the statnte construed); il/e. Pnb. St.
1883, c. 107, §§ .5-9 (in general) ; Md. Pub. G. L.
1888, art. 35, §§ 15, 16, 19, 22, 28 (in general) ;
art. 84, § 9 (depositions in shipping cases) ;
1800, Gittings u. Hall, 1 H. & J. 14, 18 (notice
necessary for depositions under the act of 1 723,
c. 8, for land commissions) ; Mass. Pub. St.
1882, c. 169, §§ 25, 43, Rev. L. 1902, c. 175,
§§ 27, 45 (notice required ; unless notice was
impossible under the circumstances); St. 188-3,
c. 188, St. 1899, c. 123, Rev. L. 1902, c. 17.5,
§ 43 (where the adverse party does not appear
to defend, no notice is required) ; Mich. Comp.
L. 1897, § 10136 (in general) ; 1897, Drosdowski
V. Chosen Friends, 114 Mich. 178, 72 N. W. 169
(reasonable notice; trial Court's discretion ap-
proved) ; Minn. Gen. St. 1894, §§ 5669-5675,
5685, 5688 (in general) ; Miss. Annot. Code
1892, §§ 1750-1764 (in general) ; Mo. Rev. St.
1899, §§ 2883-2891, 2902 (in gener.al) ; 1894,
Glenn v. Hunt, 120 Mo. 333, 3.J6, 25 S. W. 181
(notice not necessary under R. S. 1889, § 4435,
for an opponeut out of the State) ; Mont. C. C. P.
1895, §§ 3354, 3363 (like Cal. C. C. P. §§ 2028,
2034) ; P. C. §§ 2483, 2504, 2506 Oike Cal. P. C.
§§ 1338, 1353, 1355) ; § 1692 (deposition before
a magistrate of a witness not giving recogni-
zance) ; Nebr. Comp. St. 1899, §§ 5952-5954,
7187 (in general) ; Nev. Gen. St. 1885, §§ 3430,
3434, 4438 (in general) ; §§ 3910, 4056 (deposi-
tion of a witness for the people, admissible if it
is taken in the defendant's presence, and tlie
defendant ha.s had " an opportunity to cross-
examine"); N. H. Pub. St. 1891, c. 225, §§4,
5, 14 (in general) ; N. J. Gen. St. 1896, Evi-
dence, § 25 (in general) ; § 30 (notice of eight
days required for a commission out of the State,
unless by consent or by judge's order) ; §§ 38,
66 (for depositions before a judge, commissioner,
etc., out of the State, terms of notice prescribed) ;
§ 63 (same, deposition in foreign State) ; St.
1900, c. 150, §§ 31, 38, 45 (former provisions re-
peated); St. 1902, c. 135 (in a proceeding for
divorce or annulment, where no appearance is
entered, a deposition in another State or Ter-
ritory may be taken and used " ex parte and
without notice"); N. .1/. Comp. L. 1 897, §§ 3037-
3040 (in general) ; N. Y. C. Cr. P. 1881, § 219
(in depositions for the prosecution, two days'
notice must be given) ; § 632 (in depositions for
accused, notice as specified by the judge)
1722
C. C. P. 1877, §§ 896, 899 (notice prescribed) ;
N. C. Code 1883, § 1357 (in general) ; St. 1891,
c. 522 (depositions taken by accused) ; 1896,
State V. Finley, 118 N. C. 1161, 24 S. E. 495
(under c. 522, St. 1891, a co-defendant need not
be notified) ; N. D. Rev. C. 1895, §§ 5677-5679
(civil cases) ; §§ 8378, 8388 (criminal cases) ; Oh.
Rev. St. §§ 5273, 5274 (in general) ; § 7293 (in
criminal cases, the judge's order may prescribe
terms of notice) ; Okl. Stats. 1893, §§ 4242,
4243, 5287, .5351, 5362 ; Or. C. C. P. 1892, §§ 817,
821, 822, 823, 828 (in general) ; Pa. St. 1895,
Pub. Laws, 279, § 1 ; & /. Gen. Laws, 1896,
c. 244, §§ 21, 24, 28; St. 1902, c. 998; 1851,
Hazard ;;. R. Co., 2 R. I. 62 (no notice re-
quired under statute, for an opponent more
than 100 miles distant) ; 5. C. Rev. St. 1893,
§§ 2333, 2342, Civ. C. 1902, g§ 2869, 2S78 (ten
days' notice required for depositions on com-
mission or before a court clerk) ; ib. §§ 2345 and
ib. 2881 ("reasonable notice, not less than ten
days," unless notice is impracticable, required
for certain depositions) ; ib. §§ 891 and ib. 992
(justice Court rule) ; the statutes are applied in
the following cases: 1900, Henderson v. Wil-
liams, 57 S. C. 1, 35 S. E.261 ; 1901, Wallingford
V. Tel. Co., 60 id. 201, 38 S. E. 443 ; S. D. Stats.
1899, §§ 6.520-6521 (civil cases) ; §§ 8812, 8823
(criminal cases) ; Tenn. Code 1896, §§ 5627,
5640-5647 (notice to be as the Court may order,
or according to detailed rules provided) ; § 5632
(if cross-examination is omitted, it may be had
afterwards) ; § 7356 (rules for civil cases made
applicable to defendant's depositions in criminal
cases) ; Tex. Rev. Civ. Stats. 1895, §§ 2274-
2276 (in general) ; C. Cr. P. 1895, §§ 797, 805,
808 (in general); Utah Rev. St. 1898, §§3450,
3456-3461, 5031, 5042 (in general) ; Vt. St.
1894, §§ 1264, 1265, 1924 (reasonable notice is
to be given ; for non-residents having no at-
torney in the State, no notice is necessary) ;
§§ 153, 155 (notice required in election contests) ;
1868, Kimpton v. Glover, 41 Vt. 284 (time of
notice) ; Va. Code 1887, §§ 3362, 3363 (in gen-
eral) ; Wash. C. & Stats. 1897, §§ 6019, 6020,
6024, 6708 (in general) ; W. Va. Code 1891, c.
130, § 35 (in general) ; c. 50, § 106 (depositions
before justices) ; c. 121, § 3 (specific rules for
sen'ice of notice on non-residents) ; c. 77, § 27
(deposition of subscribing witness to will ; notice
necessary only to a partv opposing probate) ;
Wis. Stats. 1898, §§ 4086, 4096, 4102, 4114,
4115 (in general) ; Wyo. Rev. St. 1887, §§ 2621,
2622, St. 1895, c. 96, §'§ 2, 4 (in general).
1 England: Rules of Court 1883, Ord. 37,
r. 5 (quoted ante, § 1380; presumably sufiiccs
for this purpose) ; Canada: Compare the stat-
utes cited ante,% 1380, and post,^ 1388; United
States: Notice is prescribed, except as other-
wise stated; compare also the statutes cited
post, § 1388, as to identity of parties and issues :
Ala. Code 1897, §§ 186.3, 1864, 1870, 1873;
Alaska C. C. P. 1900, § 685 ; Ariz. Rev. St. 1887,
§§ 1367-1393]
DEPOSITIONS; NOTICE.
§ 1384
deposition is offered against one who has not been notified and could not
have been, even by due diligence (as is likely to occur in cases where the
parties to the future litigation are still unknown), it may be thought that
a case of necessity exists, dispensing with the requirement; the statutes
sometimes provide expressly that a deposition may be or shall not be used
against such a party.^ In some jurisdictions, the statute requires that this
kind of deposition shall be publicly recorded, the object being to secure as
wide a notice of it as possible, so that counter-testimony may be availed of
if desired ; an object analogous to that of the requirement of notice for cross-
examination.^ Under such a statute an unrecorded deposition would be
inadmissible.*
§ 1384. Affidavits; Testimony of King or Ambassador. Upon the prin-
§ 1839; Arlc. Stats. 1894, §§ 3017 fC. (notice re-
quired ; if the adverse party is an infant, non-
resident, unknown, or for four months absent
from the State, the Court may appoint a cross-
examiner) ; Cal. C. C. P. 1872, § 2084; Colo.
C C. p. 1891, § 366; Conn. Gen. St. 1887,
§ 1080; D. C. Comp. St. 1894, c. 20, §§ 6, 7, 11
(notice required) ; § 14 (any deposition in pernet-
uani may in Court's discretion be admitted); Del.
Kev. St. 1893, c. 56, § 2 (boundary cases; notice
to owners and tenants required) ; Fla. Rev. St.
1892, § 1138 ; Ga. Code 1895, § 3961 (the Court
is to provide for "the most effectual notice ") ;
Haw. Civil Laws 1897, § 1390; Ida. Rev. St.
1887, §§ 6117-6119; St. 1899, Feb. 10, § 24;
///. Rev. St. 1874, c. 51, §§ 39-44 (notice required,
and details prescribed ; if the ordinary require-
ments seem to the Court insufficient, " the Court
may order such reasonable notice to be given as
it shall deem proper"); Ind. Kev. St. 1897,
§§450-451 (in general) ; §§ 1272, 1280 (testimony
to perpetuate a lost deed, record, etc., before
the recorder, etc. ; no notice apparently re-
quired) ; In. Code 1897, §§ 4718-4720 (notice
required ; if personal notice is impossible, the
Court is to appoint a cross-examiner) ; Kan.
Gen. St. 1897, c. 95, §§ 384, 385 (notice re-
quired ; if personal notice is impossible, a cross-
e.xaminer is to be appointed by the Court) ; Ky.
C. C. P. 1895, § 611 (notice to the "expected
adverse party," required) ; La. C. Pr. 1894,
§ 440; Me. Pub. St. 1883, c. 107, §§ 22, 27 ; Md.
Pub. G. L. 1888, art. 35, § 31 (land-boundaries;
notice is to be posted in " the most public places
in the county" 20 days before, and where all
persons interested are known and any one lives
out of the county, by newspaper advertisement
40 diiys before) ; Mass. Pub. St. 1882, c. 169,
§§ 47, 54, 62; Rev. L. 1902, c. 175, §§ 48-62;
Mich. Comp. L. 1897, § 10140; Minn. Gen.
St. 1894, g^ 5694, 5701; Miss. Annot. Code
1892, §§ 1767-1771 ; il/o. Rev. St. 1899, §§ 4528-
4331, 4551 ; 1866, Patterson v. Pagan, 38 Mo.
70, 80 (notice necessarv); Mont. C. C. P. 1895,
§ 3421 ; Nebr. Comp. "St. 1899, § 5996 (notice
prescribed, as the judge directs; if personal
notice is impo.ssible, the judge is to appoint a
cross-examiner); Nev. Gen. St. 1885, §§ 3439-
3442; iV. H. Pub. St. 1891, c. 226, §§ 3-5;
N. M. Comp. L. 1897, §§ 3050-3055; N. D.
Eev. C. 189.5, § 5709; Oh. Rev. St. 1898,
§§ 5874-6 (in general) ; §§ 1169, 1188, 1193
(county surveyor may take and return testi-
mony to marks, etc., on notice to the adverse
party); Okl. Stats. 1893, §§ 4281, 4282 (notice
required ; the Court to prescribe details, and to
appoint an attorney to cross-interrogate in case
no personal notice can be given) ; Or. C. C. P.
1892, §§ 860, 865 (notice required, and details
prescribed ; the officer himself to cross-examine,
if no opponent appears) ; R. I. Gen. L. 1896,
c. 244, §§ 32, 33 ; S. D. Stats. 1899, § 6549 (the
judge to prescribe terms of notice ; and to ap-
point a cross-examining attorney where the
parties cannot be notified) ; Tenn. Code 1896,
§§ 5671, 5672; Tex. Rev. Civ. Stats. 1895,
§ 2277 ; U. S. Eev. St. 1878, § 867 (quoted post,
§ 1388) ; § 866 (provisions of § 863 as to deposi-
tions de bene do not here apply); 1897, Green
V. Compagnia, 82 Fed. 490, 495 (excluded, if
taken without notice ; here, a corporation in a for-
eign country, witnesses being sailors about to
leave this countrv) ; Utah Rev. St. 1898, §§ 3467-
3469; Vt. St. 1894, §§ 1274, 1275; Va. Code
1887, § 3369 (reasonable notice required to
"the persons who may be so affected ") ; Wash.
C. & Stats. 1897, § 6035; W. Va. Code 1891,
c. 130, § 39 (reasonable notice to be given to
" the persons who may be so affected") ; Wis.
Stats. 1898, §§ 4118, 4125, 4128, 4131; Wyo.
Rev. St. 1887, § 3069 (notice required; the
Court to appoint a cross-examiner, where per-
sonal notice cannot be given).
^ See the statutes in § 1388, post.
3 Mass. Eev. L. 1902, c. 175, §§ 51, 63; 1840,
Thacher, J., in Com. v. Stone, Thacher Cr. C.
604, 607 (" Why does the statute require that a
deposition in perpetuam should be recorded 1
It is to preserve its purity and integrity, as well
as the testimony itself. The record is a publica-
tion and serves to make it known as well as
remembered. If it should contain errors or
falsehoods, the parties in interest will have an
opportunity to guard against them in season,
either by taking the deposition de novo, or by
putting on record the deposition of others to
contradict or explain its contents").
* 1814, Bradstreet v. Baldwin, 11 Mass. 229,
233 ; 1822, Braintree v. Hingham, 1 Pick. 245,
247; 1840, Com. v. Stone, Thacher Cr. C. 604,
607.
VOL. II. —46
1723
§ 1384 EIGHT OF CEOSS-EXAMINATION. [Chap. XLIV
ciples already examined, it is perfectly clear that a mere affidavit — i. e. a
statement sworn to before an officer — is inadmissible :
1767, Buller, J., Trials at Nisi Prius, 241 : " From what has been said, it is evident
that, as there can be no cross-examination, a voluntary affidavit is no evidence between
strangers."
1853, Common-Law Practice Commissioners, Second Report, p. 31 : " All applications to
the Courts for their summary intervention in what may be termed incidental matters are
founded on testimony contained in affidavits. If resisted, the evidence in opposition is
brought before the Court in the same manner. Now it must be admitted that this species
of evidence is of all others the most unsatisfactory. All the circumstances which give to
the system of English procedure its peculiar and characteristic merits — viva voce interro-
gation, cross-examination, publicity, examination in the presence of the tribunal, whereby
an opportunity is afforded of observing the demeanor of the witness — are here wanting ;
and not only this, but the testimony is often not the spontaneous statement of the wit-
ness ; the affidavit is prepared for and sworn to by the deponent, often without the sense of
responsibility which would be felt by a witness when delivering a statement in his own
words. Another very serious objection to affidavit-evidence is that there is no eilectual
mode of ascertaining the means of knowledge or the grounds on which general conclusions
sworn to have been arrived at."
1851, Grier, J., in Walsh v. Rogers, 13 How. 287 (referring to ex parte depositions):
" Testimony thus taken is liable to great abuse. At best it is calculated to elicit only
such a partial statement of the truth as may have the effect of entire falsehood. The
person who prepares the witness and examines him can generally have just so much or
so little of the truth, or such a version of it, as will suit his case."
1870, Thornton, J., in Becker v. Quigg, 54 111. 390, 394 (rejecting an affidavit to prove
loss of a document) : " One serious objection to the admission of ex parte affidavits is that
the opposite party is denied the privilege of cross-examination. This is a most efficacious
test for the discovery of truth, and should never be departed from, except from necessity.
A witness subjected to this test cannot easily impose on the Court or fabricate falsehood."
This principle has been constantly recognized and enforced judicially.' There
are, however, a number of instances {post, §§ 1709-1711), which form special
exceptions to the Hearsay rule. They are briefly these : (1) a common-law
exception for disqualified parties (when that form of incompetency prevailed),
admitting the affidavit of the loss of a document proved by copy ; this has
been perpetuated in some statutes ; (2) a common-law exception in Pennsyl-
vania for an affidavit of a copy of a foreign register, in certain cases ; (3) a
statutory exception, widely in favor, for an affidavit of publication of a news-
paper notice ; (4) statutory exceptions in sundry unrelated cases. The use of
affidavits in interlocutory and ex parte proceedings is not within the present
1 1691, R. V. Taylor. Skinner 403; 18^8, P. Co. v. Lewis, 90 id. 30-t, 57 N. W. 869
Pickering v. Townsend, 118 Ala. 351, 23 So. (afBdavits usable before a certain board, here
703; 1883, Smith v. Feltz. 42 Ark. 355, 357; excluded); 1866, Patterson c. Pagan, 38 Mo. 70,
1899, People v. Plyer, 126 Cal. 379, 58 Pac. 904 82 ; 1 898, Supreme Lodge v. Jaggers, 62 N. J. L.
(affidavit not admissible to prove death of former 96, 40 Atl. 783 ; 1845, Harper v. Burrow, 6 Ired.
witness in order to use his testimony) ; 1889, 33; 1893, Allen v. U. S., 28 Ct. CI. 141, 145.
Shreve v. Cicero, 129 lU. 226, 228, 21 "N. E. 815 Distinguish the following: 1889, Graliam v.
(affidavit of inspection of registry of deeds, McReynolds, 88 Tenn. 240, 247, 12 S. W. 547
excluiled) ; 1871, State v. Feltev, 32 la. 49, 51; (affidavit by plaintiff, offered as ratifvins: .it-
1893, Hudson v. Appleton, 87 id. 605, 607,54 torney's action in prosecuting suit : admitted^
N. W. 462 (even where the affiant has become Distinguish also the use of tlie Oji/Munt's
ill and mentally incompetent) ; 1894, Democrat affidavit as au admission {ante, § 107.')).
1724
§§ 1367-1393] AFFIDAVITS. § 1385
purview, which is confined to adversary proceedings in the nature of common-
law trials.
At common law, in England, the king's testimony as an individual seems
to have been receivable without attendance for cross-examination, thus form-
ing an exception to the Hearsay rule.^ On the same principle it would seem
that the testimony of an ambassador (privileged from attendance under the
principle of § 2372, post) should be receivable ; nevertheless, no exception is
recognized, i. e. the ambassador's testimony must be taken, if at all, in the
form of a deposition subjected to cross-examination, — in criminal cases at
least.^
§ 1 385. Ex parte Expert Investigationa ; Preliminary Rulings on the Voir
Dire ; Testimony by an Opponent. (1) Of late years, the fallacious sugges-
tion has sometimes been made by unreflecting counsel that the rule requiring
an opportunity of cross-examination applies to forbid the use of a diagram
or model or map, or of a chemical analysis or other expert investigation, pre-
pared or made out of court without notice to the other party. The sugges-
tion is erroneous, for the reason that there is afforded in such cases the
required opportunity of cross-examination, namely, when the witness who
has made the model or the analysis takes the stand at the trial to testify to
the results of his work. No more can be demanded. The map or model or
analysis is not in itself testimony {ante, § 793) ; it is nothing until adopted
by a competent witness as a part of his testimony and a mode of communi-
cation. One might as well demand that an opportunity of cross-examination
be had at the time of the occurrence of an affray, or at the time that a
witness is collecting his thoughts or doing any other act in preparation for
testimony. The suggestion in question has been universally and properly
repudiated by the Courts:
1886, Henry, C. J., in Slate v. Leabo, 89 Mo. 247, 253, 1 S. W. 288 (examination of
corpse by experts) : " There is but a slight, if any, analogy between the examination by
an expert or any one else of physical objects with a view of testifying to the result of his
observations, and the deposition of a witness, as regards notice ; the notice in the latter
case is required in order that the opposite side may have an opportunity to cross-examine
the deponent upon the facts testified to by him ; the expert, when he comes to testify, is
subject to that cross-examination."
18D4, Burg v. R. Co., 90 la. 106, 118, 57 N. W. 680 : " It is not the law that in making
such tests, measurements, etc., the opposite party is entitled to notice in order that he
may be present. It is the i-ight of each party, in the preparation for trial, to take all
legal steps in the way of being able to meet the issues of fact by proofs ; and in preparing
for the presentation of his evidence, no notice to the adverse party is required." ^
2 The cases are collected /losf, § 1674. tracks; to admit the opposite contention "is to
' The cases are collected post, § 1407. put an end to all inquiry into the commission of
1 Accord: 1881, Augusta & S. R. Co. v. offences depending upon the introduction of
Dorsey, 68 Ga. 234 (model prepared ex parte, circumstantial evidence ") ; 1887, State u. Whit-
admissible) ; 1894, Burg v. R. Co., 90 la. 106, acre, 98 id. 753, 3 S. E. 488 (diagrams made
118 (quoted supra); 1886, State v. Leabo, 89 ex parte, received); 1903, State v. Nagle, —
Mo. 247, 253, 1 S. "W. 238 (quoted supra) ; R. I. — , 54 Atl. 1063 (expert's e.\periments
1887, State y. Brooks, 92 id. 542, 579, 5 S. VV. with a pistol) ; 1885, Lipes v. State, 15 Lea 125
2.57, 330 (similar); 1881, State v. Morris, 84 (testimony from witnesses who examined the de-
N. C. 756, 760 (notice to a defendant, not neces- feudaut's feet for the express purpose of seeing
sary ; here, a witness wio had examined boot- whether they fitted tracks, admissible) ; 1886,
1725
§ 1385 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
No doubt a part of the notion leading to the making of such an objection
is the distrust which must be felt for testimony coming from one who has
been employed as a partisan and must therefore have been interested to
reach results of a certain tenor. But this element in the objection is in
truth directed, not against the absence of notice and cross-examination, but
against the competency of a hired and partisan expert witness.^ Since to-
day no interest can disqualify, the objection fails in this aspect also.^
(2) In preliminary rulings by a judge on the admissibility of evidence, the
ordinary rules of evidence do not apply. Hence there is no absolute right
to cross-examination.* Nevertheless, it is customary and proper to hear evi-
dence on both sides before the ruling is made. Some Courts, however, are
inclined erroneously to apply the specific right of cross-examination to that
situation.^
(3) The interrogation of an opponent, by way of discovery {post, § 1856),
is in itself in the nature of a cross-examination, and secures all the benefits
of it. But the manner and subject of the interrogatories may be limited by
the rule against impeaching one's own witness {ante, § 916), when the oppo-
nent is examined by deposition or on the stand like other witnesses. By the
same rule, the interrogation of even an ordinary witness may be restricted
(a wfe, §§ 910-915) ; and this question is sometimes loosely and improperly
referred to as involving the general " right to cross-examine," as if that right
were not recognized. So, also, the same improper phrase is sometimes
applied to the rule forbidding to deal with the subject of one's own case
on cross-examination {post, § 1885).^
Mississippi & T. R. Co. v. Ayres, 16 id. 72.5, Jurisprudence, § 1246, in a passage which was
727 (expert examination ex parte of an injured probably the original source of the objection
person, made pendente lite, admissible ; that " the in question.
evidence of an expert is rendered incompetent ^ 1898, Sanborn, J., in Day t'. U.S., — U. S.
because based upon an ex parte examination," App. — ,87 Fed. 125: " The measure of the corn-
repudiated) ; 1894, Byers v. Railroad, 94 Tenn. petency of a witness is not the view or purpose
345, 352, 29 S. W. 128 (test made ex parte as to with which he obtained his information, but the
the time required for stopping a train, admitted ; extent and character of the knowledge he ob-
preceding cases approved) ; 1896, Moore u. State, tained. The question is not why he obtained
96 id. 209, 33 S. W. 1046 (examination of the de- his knowledge, but what amount of knowledge
ceased by two physicians called to him just after he acquired."
the affray ; that this was done without notice For a consideration of the propriety of reform
to defendant, is no objection); 1898, Day v. in the system of expert witnesses, see anie, § 562.
U. S., 30 C. C. A. 572, 87 Fed. 125 (witnesses For the rule of notice to the o/iponent for evi-
who had examined certain horses, though not dence in general, seepos*, § 1845.
for the express purpose of determining tlieir * 1868, Com. v. Morrell, 99 Mass. 542, 543 ;
satisfaction of a contract, admitted); 1902, 1895, Com. u. Hall, 164 id. 152, 41 N. E. 133.
Morau Bros. Co. v. Snoqualmie F. P. Co., 29 " Compare the citations ante, § 487 (quali-
Wash. 292, 69 Pae. 759 (model of a regulator- ficationsof witnesses), § 861 (confessions), § 1258
box for a power-plant); 1901, Mauch v. Hart- (documentary originals), post, § 1451 (dying
ford, 112 Wis. 40, 87 N. W. 816 (X-ray photo- declarations), § 2550 (judge and jury),
graph); 1902, Hayes v. State, 112 id. 304, 87 ^ Distinguish also the question whether there
N. W. 1076 (exhumation and post-mortem is a right of cross-examination on an affidavit
examination). denying common source of title ia ejectment; here
For the use of an ex parte surveyor's return, the affidavit is really only a sworn pleading :
under statute, see pos<, § 1665. 1884, Thatcher v. Olmstead, 110 111. 26 ("an
^ It is this consideration which was had in oath of this character is not evidence ").
mind by Messrs. Wharton & Stille, Medical
1726
§§ 1367-1393] ISSUES AND PARTIES. § 1386
2. Issues and Parties, as affecting Opportunity of Cross-examination.
§ 1386. General Principle: Issue and Parties must have been Substan-
tially the Same. A testimonial statement may still not satisfy the Hearsay
rule even where it has been made before a tribunal or officer at which there
was cross-examination, or the opportunity, for the then opponent ; because
the cross-examination, for which there must have been an opportunity, must
have been au adequate one. Unless the issues were then the same as they
are when the former statement is offered, the cross-examination would not
have been directed to the same material points of investigation, and there-
fore could not have been an adequate test for exposing inaccuracies and
falsehoods. Unless, furthermore, the parties were the same in motive and
interest, there is a similar inadequacy of opportunity, for the present oppo-
nent cannot be fairly required to abide by the possible omissions, negligence,
or collusion, of a different party, whose proper utilization of the opportunity
he has no means of ascertaining :
1726, Chief Baron Gilbert, Evidence, 68: "When you give in evidence any matter
sworn at a former trial, it must be between the same parties, because otherwise you dis-
possess your adversary of the liberty to cross-examine."
1767, BuUer, J., Trials at Nisi Prius, 239 : " A Deposition cannot be given in Evidence
against any Person that was not a Party to the Suit; and the Reason is because he had
not Liberty to cross-examine the Witness, and it is against natural Justice that a Man
should be concluded by Proofs in a Cause to which he was not a Party."
1777, Mansfield, L. C. J., in Goodrighl v. A/oss, Cowper, 592 : "[As to] offering a deposi-
tion or an answer in evidence against a person not a party to the original suit. That cannot
be done, for this reason, because such person has it not in his power to cross-examine."
1845, Gilchrist, J., in Bailey v. Woods, 17 N. 11. 372: " We do not understand that the
admissibility of such evidence depends so much upon the particular character of the
tribunal as upon other matters. If the testimony be given under oath in a judicial pro-
ceeding, in which the adverse litigant was a party and where he had a right to cross-
examine and was legally called upon to do so, the great and ordinary tests of truth being
no longer wanting, the testimony so given is admitted in any subsequent suit between
the parties. It seems to depend rather upon the right to cross-examine than upon the
precise nominal identity of the parties."
1856, Bartley, C. J., in Summons v. State, 5 Oh. St. 343: " The main reason for the
exclusion of hearsay evidence is to be found in the want of the sanction of an oath,
of legal authority requiring the statement, and an opportunity for cross-examination.
Where these important tests of truth are not wanting, and the testimony of the state-
ments of the deceased witness is offered on a subseqlient trial between the same parties,
touching the same subject-matter, and open to all the means of impeachment and objec-
tion to incompetency which might be taken if the deceased person could be present
as a witness, there would not appear to be any sound and satisfactory ground for its
exclusion."
1862, Hinman, C. J., in Lane v. Brainerd, 30 Conn. 579 : " As that was a trial between
different parties, having different rights and with whom the plaintiff had no privity, and
as he had no opportunity to examine or cross-examine the witnesses, it would be contrary
to the first principles of justice to bind or in any way affect his interests by the evidence
given on that occasion." ^
1 For the mode of proving former testimony, For the rule that only the substance or a pari
by stenographers' notes, Judges' reports, etc., see need be proved, see post, §§ 2098, 2103 2115
post, §§ 1666-1669.
1727
§ 1387
RIGHT OF CROSS-EXAMINATION.
[Chap. XLIV
§ 1387. Issue the Same. The issue on the occasion when the former
testimony or deposition was given must have been substantially the same,
for otherwise it cannot be supposed that the former statement was sufficiently
tested by cross-examination upon the point now in issue. Conversely, it is
sufficient if the issue was the same, or substantially so with reference to the
likelihood of adequate cross-examination, because the opponent has thus
already had the full benefit of the security intended by the law.
The general rule in this shape is nowhere disputed. But there is naturally
much variance shown in the strictness of its application in specific cases. ^ It
1 In the following list, those rulings which
rest on complicated facts peculiar to the special
case, or which merely apply the general rule to
facts not stated, are noted without any detailed
statement of the ruling; England: 1817, R. u.
Smith, R. & R. 339 (testimony on charge of as-
sault and rohbery, admitted on a subsequent
charge of murder for same act) ; 1834, Alderson,
B., in Doe v. Foster, 1 A. & E. 791, note (eject-
ment for one piece of land, then for another, but
the issue in both being the same, viz., who was
A. B.'s heir; admissible); 1850, R. v. Ledbet-
ter, 3 C. & IC. 108 (testimony on a charge of
assault, not received on a trial for felonious
wounding, the act being the same; the ruling
is in effect repudiated by later cases) ; 1852,
R. V. Dilmore, 6 Cox Cr. 52 (testimony on a
charge of felonious wounding, admitted oji a
charge of manslaughter for the same act) ;
1854, R. V. Beeston, ib. 425, Dears. Cr. C. 405
(deposition on a charge of felonious wounding
with intent to do bodily harm, admitted on a
trial for murder, the act being the same ; Jervis,
C. J, : " The presiding judge must determine in
each case whether the prisoner has had full
opportunity of cross-examination ; and if the
charges were entirely different, he would not
decide that there had been that opportunity ;
but where it is the same case, and only some
technical difference in the charge, the accused
generally has had full opportunity of cross-ex-
amining ; " Alderson, B. : " The question really
^is whether the deposition was taken under such
circumstances that the accused had full oppor-
tunity of cross-examination"); 1864, R. !'. Lee,
4 F. & F. 63 (testimony on a charge of robbery,
admitted on a charge of murder, the a.ssault
being the same) ; 1874, R. v. Castro ( Tichborne
Case), Charge of Cockburn, C. J., II, 305 (testi-
mony in a civil case admitted at the trial of the
then claimant for perjury at the former trial) ;
1876, Brown v. White, 24 W. Rep. 456, Jessel,
M. R. ; Canada: Man.: 189S, R «. Hamilton,
12 Man. 354 (abortion; deposition taken "on
another charge of the same purport and in
connection with the same unlawful purpose,"
admitted); N. Br.: 1862, Bennett v. Jones, 5
All. 342 (the issue being substantially the same,
for board of the plaintiff's wife, her former
testimony was admitted) ; 1896, Hovey v. Long,
33 N. Br. 462, 467 (testimony at i former trial
between the same parties on the same issues,
admitted); United States : Ala.: 1850, Davis w.
State, 17 Ala. 357 (testimony on a charge of
larceny by stealing a mule, excluded on a charge
1728
of stealing a buggy ; the act of taking being the
same); 1851, Long v. Davis, 18 id. 801, 802
(former issue, plea in abatement in an action
on a note ; present issue, a plea to merits ; ad-
mitted) ; Ailc.: 1895, Woodruff v. State, 61
Ark. 157, 32 S. W. 102; Cal.i 1873, Pico v.
Cuyas, 47 Cal. 174, 179; for the peculiar rule
in this State as to testimony before the commit-
ting magistrate, see post, § 139S; Colo.: 1902,
Wood worth r. Gorsliue, 30 Colo. 186, 69 Pac.
705 (testimony in replevin suit against a sheriff,
held admissible in a subsequent action of trover
for the same goods against the creditor jointly
liable) ; Conn. : 1864, Spear v. Coon, 32 Conn.
292 (deposition used on petition for new trial,
admissible on the new trial ; the two are " parts
of the same proceedings"); 1902, Mechanics'
Bank v. Woodward, .74 id. 689, 51 Atl. 1084
(action for money paid to the defendant's use
on notes forged by his wife ; testimony at the
prior trial of an action, founded on the same
transaction, after which an amended complaint
had been substituted for the present snit, held
admissible); Del.: 1838, Rash v. Pumel, 2
Harringt. 448, 456 (issue out of probate de-
visavit i'e/ non ; deposition taken on an appli-
cation for review of a former issue on the same
will, admitted) ; Ga.: 1849, Crawford «. Word,
7 Ga. 445, 456; 1872, Gavan 7'. Ellsworth, 45
id. 283, 288 (former trial a criminal complaint
for the same nssault as the present civil action ;
admitted); 1881, Atlanta & W. P. R. Co. ii.
Venable, ib. 697, 699 (former action, by a
mother for personal injuries; present action,
by a child for her death from those injuries ;
admitted) ; 1900, Whitaker v. Arnold, ilO id.
857, 36 S. E. 231 ; 1900, Hooper o. R. Co., 112
id. 96, 37 S. E. 165 (testimony in a suit for
personal injury by a minor through his father
as next friend, not admitted in a suit by the
father for loss of service caused by the same
injury); 1901, Radford v. R. Co. 113 id. 627,
39 S. E. 108 ^auswers to interrogatories in a
former suit between the same parties for the
same claim, but dismissed and now renewed,
admitted); ///.; 1854, Doyle v. Wiley, 15 111.
576, 578 (depositions taken before amendment
and filing of new bill, admitted) ; Kan. : 1880,
State u. Wilson, 24 Kans. 189, 194 (testimony
on charge of assault with intent to kill B.,
admitted on trial for murder of B.) ; Ky. : 1820,
Brooks V. Cannon, 2 A. K. Marsh. 525 (succes-
sive bills for the same cause; admitted); 1850,
Heth V. Young, 11 B. Monr. 278, 280; ild.:
1808, Hopkins v. Stump, 2 H. & J. 301, 303
§§ 1367-1393] ISSUES AND PARTIES THE SAME.
§ 1387
is enough to suggest that the situation is one that calls for common sense
and liberality in the application of the rule, and not a narrow and pedantic
illiberality. On the whole, the judicial rulings show a liberal inclination to
receive testimony already adequately tested ; but there is yet room for much
improvement.
A statute sometimes attempts to provide for the admission, under the
present rule, of testimony at a former trial? as well as of ordinary deposi-
(depositions on a former dismissed bill for same
cause and same parties, admitted) ; 1821, Bowie
V. O'Neale, 5 id. 226, 231 ; 1900, Baltimore
Consol. R. Co. V. State, 91 Md. 506, 46 Atl.
1000 (the deponent being present and testifying
at the first trial, the deposition was not used ;
when offered at the second trial, the deponent
being absent, it was excluded, because " his
deposition should be' retaken for use at that
trial, so that the opposing party may have the
opportunity, at the execution of the second
commission, to avail of the witness' antecedent
admissions and contradictions [at the first
trial] " ; this is unpractical and over-refined
reasoning; the opponent in such case can ob-
tain the same benefit by proving the witness'
testimony given at the first trial, or if that
would be forbidden by the rule of § 1032, ante,
he could himself have taken a second deposition
to put the question) ; Mass. : 1828, Melvin v.
Whiting, 7 Pick. 81 (fishery controversy in both
suits, but in the former a claim of free fishery,
in the latter a claim of several fishery; ex-
cluded) ; 1871, Weatherby v. Brown, 106 Mass.
338 (deposition before amendment of declara-
tion, admitted); Minn.: 1899, Watson v. R.
Co., 76 Minn. 858, 79 N. W. 308 (death by
wrongful act ; issues after amendment held sub-
stantially the same); Miss.: 1902, Dukes v.
State, SO Miss. 353, 31 So. 744 (murder; testi-
mony of the deceased at a prior trial for the
robbery which resulted in the death, excluded ;
this ruling is over-strict) ; Mo : 1865, Jaccard
!'. Anderson, 37 Mo. 91, 95 ; Nebr. : 1897, Ord v.
Nash, 50 Nebr. 335, 69 N. W. 964 (testimony at
any one of two or more prior trials, admissible) ;
N. H.: 1863, Leviston v. French, 45 N. H. 21 ;
N. Y.: 1848, Osborn v. Bell, 5- Denio 370, 377
(implied assumpsit for goods tortiously seized
and .sold ; testimony in a former action of trover
by plaintiff's intestate for the same taking, ad-
mit ted); N. C: 1839, M'Morine v. Storey, 4
Dev. & B. 189 (testimony, in D.'s action to
recover slaves transferred to J., not admitted
in an action by D.'s creditor against J.'s ad-
ministrator as executor de son tort) ; 1898, Mabe
V. Mabe, 122 N. C. 552, 29 S. E. 843 (ejectment;
deposition in another State between the same
parties in a suit on a note for the price of the
same land, the matters being " connected," re-
ceived) ; OH.: 1897, Watkins v. U. S., 5 Okl.
729, 50 Pac. 88 (perjury ; testimony in the civil
cause in which the perjury was charged, ex-
cluded) ; Pa. : 1851, Jones v. Wood, 16 Pa. 25,
43 (suits involving different land but the same
boundaries; admitted) ; 1853, Wertz v. May, 21
id. 274, 279 (previous action terminated by a
non-suit; admissible); 1860, Haupt v. Hen-
ninger, 37 id. 138, 140 (depositions taken for
1729
application to a judge in chancery, admissible
in a feigned issue before jury on same point) ;
5. C. ; 1850, Bishop v. Tucker, 4 Rich. L 178,
182 ; 1902, Oliver v. R. Co., 65 S. C. 1, 43 S. E.
307 (deposition at a first trial, admitted at the
second; re-taking not required); Tex.: 1880,
Dunlap V. State, 9 Tex. App. 179, 188 (testi-
mony on charge of assault with intent to mur-
der, admitted on trial for murder) ; 1901,
People's N. Bank v. Mnlkey, 94 Tex. 395,
60 S. W. 753 (depositions taken between the
same parties, except one, in a prior suit on
the same issue begun in a justice's court but
dismissed for lack of jurisdiction, excluded,
because the statute merely allowed their use
" in any suit in which they are taken " ; un-
sound) ; U. S. : 1896, Seeley v. K. C. Star Co.,
71 Fed. 554 (a deposition taken in a suit in a -
State court, not admissible after voluntary with-
drawal of the suit and re institution for the
same cause of action and against the same
party in the Federal court ; going upon R. S.
§ 861, limiting the taking of depositions to
causes " pending in a district or circuit court " ;
the Federal Court here being bound to proceed
under the Federal statute not sound ; compare
§ 1381, ante) ; 1900, Metropolitan St. R. Co. v.
Gumby, 39 C. C. A. 455, 99 Fed. 192 (loss of
services of plaintiff's son ; testimony of deceased
witness for the son in his former action by a
guardian for bis own injury, not admitted for
the plaintiff here, the parties and issues being
different) ; 1900, U. S. Life Ins. Co. v. Ross, 42
id. 601, 102 Fed. 722 (admitting a deposition
lawfully taken in Texas, before removal of the
cause, of a witness residing out of the county,
though not under the Federal statute more than
100 miles distant; in tlie Federal court the wit-
ness' death afterwards made it admissible) ;
Va.: 1903, Reed v. Gold, — Va. — , 45 S. E.
868 (action by a receiver against delinquent
stockholders of the corporation ; testimony of
a now deceased person in the prior chancery
proceedings against the corporation, excluded,
because the issues were not substantially the
same); Wis.: 1864, Charlesworth w. Tinker,
18 Wis. 633, 635 (testimony on a criminal com-
plaint for assault, admitted against plaintiff in
a civil action for same cause) .
* Compare also the statutes cited post,
§§ 1413, 1416, 1417, particularly for testimony
in issues of wills and bastardy : Canada : Dom.
Crim. Code 1892, § 688 (depositions are ad-
missible in a prosecu tion " for any other offence "
by the same person in all respects as they might
be "according to law" on the trial of the
charge for which they were taken) ; N. Br.
Consol. St. 1877, c. 46, § 29 (former testimony,
admissible " between the same parties or those
§ 1387
EIGHT OF CEOSS-EXAMINATION.
[Chap. XLIV
tions, taken in the same or other proceedings,^ and of depositions taken in
claiming under them") ; Newf. Consol. St. 1892,
c. 50, Rules of Court 33, par. 24 (former testi-
mony may be used " in any subsequent proceed-
ings in the same cause or matter ") ; N. Sc.
Rules of Court 1900, Ord. 35, H. 24 (all testi-
mony may be used " in auy subsequent proceed-
ings in the same cause or matter ") ; U^'ITED
States: Ariz. St. 1903, No. 25, amending Kev.
St. 1901, P. C. § 765 (testimony at the prelim-
inary hearing before a magistrate is admissible
" upon any subsequent trial of such defendant
for the offence for which lie is held ") ; Cal.
C. C. P. 1872, § 1870 (8) (testimony in a
" former action between the same parties relat-
ing to the same matter," admissible) ; § 1316
(testimony at a probate is admissible " in any
subsequent contests concerning the validity of
the will or the sufficiency of the proof thereof") ;
Commissioners' amendment of 1901 (re-enacts
C. C. P. § 1316 as 1303, and substitutes a new-
section ; quoted ante, § 1310, under the rule for
attesting witnesses); P. C. 1872, § 686 (''In a
criminal action the defendant is entitled . . .
to be confronted with the witnesses against
him in the presence of the Court, except that,
where the charge has been preliminarily ex-
amined before a committing magistrate and
the testimony taken down by question and
answer in the presence of the defendant, who
has, either in person or by counsel, cross-ex-
amined or had an opportunity to cross-examine
the witness, or where the testimony of a wit-
ness on the part of the people, "who is unable to
give security for his appearance, has been taken
conditionally in like minner in the presence,"
etc. as above, " the deposition of such a witness
may be read" if dead, etc.; see the qualifying
decisions cited post, § 1398 ; they seem to hold
that testimony at a former trial, as distinguished
from an examination before a committing mag-
istrate, is inadmissible) ; Colo. Annot. Stats.
1891, § 2426 (testimony taken "before any
former referee," admissible on hearing before
the referee for a decree of appropriation of
water) ; Conn. Gen. St. 1887, § 1094 (" in actions
by or against the representatives of deceased
persons, in which any trustee or receiver is an
adverse party, the testimony of the deceased,
relevant to the matter in issue, given at his
examination, upon the application of said trustee
or receiver, shall be received in evidence " ) ;
D. C. Code 1901, §. 1065, as amended by U. S.
St. 1902, c. 1 329 (on the death, etc. of a party, his
testimony given at a trial may be used " in any
trial or hearing in relation to the same subject-
matter between the same parties or their legal rep-
resentatives ") ; Ga. Code 1895, § .')186, Cr. C.
§ 1001 (former testimony, admissible if " upon
substantially the same issue and between sub-
stantially the same parties ") ; ///. Rev. St. 1874,
c. 148, § 7 (testimony at a preliminary probate;
see post, § 1413 ; for decisions construing it, see
post, § 1417) ; Ind. Rev. St. 1897, § 1008 (written
examination of complainant in bastardy before
the justice may be used on the trial in Circuit
Court) ; § 283i (recorded testimony at probate
of a will, admissible " upon any controversy
concerning any lands devised by such will ") ;
Ky. Stats. 1899, § 4643 (former testimony ad-
missible, in trial Court's discretion, "in any
subsequent trial of the same [civil] case between
the same parties"); ^fe. Pub. St. 1883, c. 82,
§ 1 14 (former testimony as to execution or
acknowledgment of a deed, admissible in
another civil cause, " involving the same ques-
tion," if the parties are the same, or if one is
the same and the present opponent was agent
for the opponent in the former suit) ; Mont.
C. C. P. 1895, § 3146 (8) (like Cal. C. C. P.
§ 1870 (8) ) ; Nev. Gen. St. 18S5, § 3910 (where
the defendant has had " an opportunity to cross-
examine " a witness before a committing mag-
istrate, and the testimony has been taken in
writing and subscribed in defendant's presence,
it is admissible on the witness' death, etc.);
N. .T. Gen. St. 1896, Evidence, § 12 (on new
trial in action revived after party's death, his
former testimony is admissible); St. 1900, c.
150, § 11 (in a new trial of a civil action, the
official stenographic report of the testimony of
a witness who has since died is admissible) ;
N. Y. C. C. P. 1877, 2553 a (testimony of will-
witnesses at probate, admissible on contest in
Supreme Court; see also id. § 2651); § 830
(testimony of a party or witness, since deceased
or insane or incompetent, "taken or read in
evidence at the former trial or hearing may be
given or read in evidence at the new trial or
hearing"); St. 1899, c. 352 (amending C. 0. P.
§ 830, by inserting after " new trial or hear-
ing," the words " or upon any subsequent trial
or hearing of the same subject-matter in an
action or special proceeding between the same
parties, who were parties to such former trial
or hearing or their legal represeutatives, liy
either party to such new trial or hearing or to
such subsequent action or special proceeding ") ;
Or. C. C. P. 1892, § 706 (8) (like Cal. C. C. P.
§ 1870 (8) ) ; Pa. St. 1887, Pub. L. 158, §3, P. &L.
Dig. Witnesses, § 6 (testimony of deceased, etc.
■witness, taken when defendant was present and
had opportunity to cross-examine, admissible on
a subsequent trial " of the same criminal issue ") ;
Utah Rev. St. 1898,§§ 3475, 5013 (official stenog-
rapher's report may be read " in any subsequent
trial or proceeding had in the same cause ").
' Compare also the statutes cited post,
§§ 1411, 1416, 1417 ; Can. N. Br. Const. St. 1877,
c. 37, § 185 (depositions taken "when the title
to land shall be in question " may be read " in
all future causes between the same parties or
persons holding under them for the same
land"); Alaska C. C. P. 1900, § 658 (like Or.
Annot. C. 1892, § 829) ; Cal. P. C. 1872, § 686
(quoted siipra, notel); C. C. P. 1872, §2034 (de-
position " in any other action between the
same parties upon the same subject," admis-
sible) ; amended in 1901 (by changing the
number to § 2021, and by inserting after
" same parties," the words " or their privies
or successors in interest ") ; Colo. C. C. P.
1891, § 344 (a deposition may be read "in any
stage of the same action or proceeding");
Fla. Rev. St. 1892, § 1146 (a deposition ia
usable, after discontinuance or non-suit, in
another suit " for the same cause between the
1730
§§ 1367-1393] ISSUES AND PARTIES THE SAME.
§ 1387
perpetuam memoriam.^ But it is worth noting that usually the effect of the
same parties or their respective representa-
tives," if it has remained on file) ; Haw.
Civil Laws 1897, § 1388 (deposition is admis-
sible, after nonsuit or discontiuunuce, in another
suit " for the same cause hetweeu the same
parties or their representatives") ; Penal Laws
1897, § 678 {"depositions taken in the prelimi-
nary or other investigation of any charge against
any person may be read as evidence in the
prosecution of the same or any other offence
whatever, upon the like proof " as in the prosecu-
tion in which they were taken) ; Ida. Kev. St.
1887, § 6670 (usable " iu any stage of the same
action or proceeding, or in any other action
between the same parties, upon the same sub-
ject"), St. 1899, Feb. 10, § 22 (deposition duly
filed may be used in another action, after dis-
missal, for the same cause, " between the parties
or their assignees or representatives ") ; ///.
Kev. St. 1874, c. 51, § 48 (all te.stimouy taken
by commissions of surveyors to esta;blish corners
" may be read in evidence in all suits in refer-
ence to said corners hereafter") ; Ind. Kev. St.
1897, § 449 (when another action is "com-
menced for the same cause " after dismissal of
the first, a deposition is usable " in the second
or any other action between the parties, or
their assignees or represents ives, for the same
cause ") ; Kan. Gen. St. 1897, c, 95, § 376 (usable
"in any stage of the same action or proceeding,
or in any other action or proceeding upon the
same matter between the same parties " ) ; jVe.
Pub. St. 1883, c. 107, § 19 (after nonsuit or
discontinuance, depositions are usable in an
action for the same cause between the same
parties or their representatives) ; Mich. Comp.
L. 1897, § 10142 (depositions are usable "on
appeals and re-trials of the same canse of
action"); Minn. Gen. St. 1894, § 5681 (a filed
deposition is usable " when the plaintiff in any
action discontinues it, or it is dismissed for any
cause, and another action is afterward com-
menced for the same cause between the same
parties, or their respective representatives " ) ;
Mont. C. C. P. 1895, § 3363 (like Cal. C. C. P.
§ 20.34) ; Nebr. Comp. St. 1899, § 5957 (a de-
position is usable "in any stage of the same
action or proceeding, or in any other action or
proceeding, upon the same matter between the
same parties"); Net: Gen. St. 1885, § 3432
(usable "in any stage of the same action or
proceeding"); N. Y. C. C. P. 1877, § 881 (de-
position may be used in any subsequent action
" between the same parties or between any parties
claiming under tliem or either of them") ; N. D.
Kev. C. 1895, § 5682 (likeOkl, Stats. §4247); Oh.
Kev. St. 1898, § 5278 (a deposition is usable " in
any stage " of the action, " or in any other action
or proceeding upon the same matter between the
same parties ") ; Okl. Stats. 1893, §4247 (admis-
sible " in any stage of the same action or pro-
ceeding, or in any other action or proceeding
upon the same matter between the same
parties") ; Pa. St. 1814, P. & L. Dig. Evidence,
§ 1 (a deposition is usable iu " any subsequent
cause in which the same matter shall be in dis-
pute between the same parties, their heirs,"
etc.) ; S. D. Stats. 1899, § 6524 (like N. D. Rev.
1731
C. § 5682) ; Vlah Rev. St. 1898, § 3459 (like
Cal. C. C. P. § 2034) ; St. 1899, c. 57 (a deposi-
tion of a witness, taken de bene in a criminal
case, may be used " upon any subsequent trial
of the case in the district court on appeal ") ;
Vt. Stats. 1894, § 1273 (on discontinuance by
reason of death, depositions, not of parties, may
be used in a subsequent suit between the same
parties or their representatives involving the
same subject-matter); Fa. Code 1887, § 3362
(for actions pending in the same court between
the same parties " depending upon tlie same
facts, or involving the same matter of con-
troversy, in whole or in part," a deposition taken
in one may be read in all) ; Wash. C. & Stats.
1897, § 6029 (depositions are usable, after dis-
continuance or dismissal, in another action " for
the same cause between the same parties, or
their respective representatives"); § 6030 (de-
positions are usable on new trial on appeal and
on change of venue) ; Wis. Stats. 1898, § 4093
(a deposition is usable "in any trial, inquiry,
or assessment " in the action, and " in any other
action between the same parties, including their
respective legal representatives, involving the
same controversy," if filed, etc.) ; Wyo. Rev.
St. 1887, § 2626 (like Oh. Kev. St. § 5278).
* Compare also the statutes cited post, § 1412 ;
Can. N. Sc. Rules of Court 1900, Ord. 35, R. 35
(in proceedings in which the Attorney-General
is made a party for the Crown, depositions in
perpetunm are admissible though the Crovm was
not a party to the action in which it was taken) ;
Ont. Kev. St. 1897, c. 324, § 15 (similar) ; Ala.
Code 1897, § 1867 (admissible on trial "between
the persons described iu the affidavit as parties,
actual or expectant, or their successors in in-
terest ") ; Alaska C. C. P. 1900, § 690 (like Or.
Annot. C. 1892, § 863); Ariz. Kev. St. 1887,
§ 1839 (usable " in any suit which may be
hereafter instituted by or between any of the
parties to the statement [affidavit] or those
claiming under them ") ; Arh. Stats. 1 894, § 3022
(admissible on a trial " between the persons
named in the affidavit as expected parties, or
their successors in interest ") ; Cid. C. C. P.
1872, § 2088 (usable " between the parties named
in the jietition as parties expectant, or their
successors in interest, or between any parties
wherein it may be material to establish the facts
which such depositions prove ") ; Colo. C. C. P.
1891, § 370 (usable "if a trial be had between
the parties named in the petition as parties ex-
pectant, or their successors in interest, or be-
tween any parties wherein it may be material to
establish the facts which such depositions prove
or tend to prove") ; Conn. Gen. St. 1887, § 1083
(admissible in the cause for which they v;er&
taken and " in all other causes " with same
subject-matter and with same parties or between
heirs or representatives of petitioner and the
other parties) ; D. C. Comp. St. 1894, c. 20, § 14
(any Court may in its discretion admit "iu
any cause before it any deposition taken in
perpetuam") ; Del. Rev. St. 1893, c. 56, § 2
(boundary cases ; notice to owners and tenants
required ; depositions usable " against the parties
to the petition and their privies in any suit or
§ 1387
EIGHT OF CROSS-EXAMINATION.
[Chap. XLIV
common-law principle would be even broader than the statutes' terms, and
controTersy in which the bounds which they
concern shall come iu question ") ; Fla. Kev. St.
1892, § 11-tl (usable in suits "between the
person at whose request it was taken and the
persQus named in the said written statement, or
any of them, who were notified as aforesaid,
or any persons claiming under either of the said
parties, respectively, concerning the title, claim,
or interest set forth in the statement ; or, if
notice by advertisement hereinbefore provided
for shall have been given, then between the
person at whose request it was taken, or any
person claiming under him, concerning the claim,
title, or interest set forth in the statement, and
any other person " ) ; Ga. Code 1S95, §§ 3961,
3963 (the Court is to provide " for the most
effectual notice " ; but testimony " may be used
against all persons, whether parties to the pro-
ceeding or not"); Haw. Civil Laws 1897,
§ 1393 (admissible in a trial " between the
parties named in tlie petition or their privies or
successors in interest touching the matter of
controversv set forth iu the petition"); Ida.
Kev. St. 1887, § 6121 (like Cal. C. C. P. § 2088) ;
St. 1899, Feb. 10, § 28 (depositions may be used
" in any cause between the parties named in the
affidavit or in any cause between persons claim-
ing under either of said parties ") ; ///. Rev. St.
1874, c. 51, § 46 (admissible " in any case to
■whii'h the same may relate '' ; " and parties
notified ' as unknown owners ' . . . shall be bouud
to the same extent as other parties ") ; Ind.
Eev. St. 1897, § 455 (usable "in any cause be-
tween the parties named in the affidavit [for
taking], or iu any cause between persons claim-
ing under either of said parties ') ; 7a. Code
1897, § 4723 (usable on a trial " between the
parties named in the petition, or their privies
or successors iu interest ") ; Kan. Gen. St. 1897,
c. 95, § 387 (usable "if a trial be had between
the parties named iu the petition, or their privies
or successors in interest ") ; Ky. C. C. P. 1895,
§ 611 (uotice to the " expected adverse party "
required; testimony usable in trial between the
" expected parties or their representatives or
successors ") ; Mass. Pub. St. 169, § 64, Rev. L.
1902, c. 175, § 64 (deposition in perpetuam, taken
"so that it may be used against all persons,"
according to the statutory mode, " may be used
by the person at whose request it was taken, or
by any person who claims under him, against
any person whatever, in any action or process,
wliereiu is brought iu question the title, claim,
or interest set forth in the statement upon
which the commission was founded"); Minn.
Ge:i. St. 1894, §§ 5697, 5704 (usable in an
action " between the jierson at whose request it
wa.-i taken, and the persons named in the writ-
ten statement, or auy of them, or any person
claiming under either of the said parties respec-
tively, concerning the title, claim, or interest,
set forth iu the statement ") ; Miss. Annot.
Code 1892, § 1775 (admissible "in any suit be-
tween tlie parties described in the written state-
ment for procuring such testimony or their
privies iu interest") ; Mo. Rev. St. 1899,"§ 4.540 (ad-
missible "iu any cause or judicial proceeding to
wiiich tliey relate, in favor of any parties thereto.
1732
or any or either of them, or his or their execu-
tors or administrators, heirs or assigns, or their
legal representatives ") ; § 4557 (when taken to
establish land-comers, admissible "in all cases
to which they may relate ") ; Mont. C. C. P.
1895, § 3425 (like Cal. C. C. P. § 2088) ; Meby.
Comp. St. 1899, § 6000 (admissible on a trial
" between the parties named in the petition, or
their privies or successors in interest ") ; A'cr.
Gen. St. 1885, § 3444 (like Cal. C. C. P. § 2088| ;
N. H. Pub. St. 1891, c. 226, § 9 (may be used in
any cause where the matters concerned are iu
question) ; N. M. Comp. L. 1897, § 3064 (ad-
missible "in any cause or judicial proceeding
to which they relate, in favor of any parties
thereto, or any or either of them, or their ex-
ecutors or administrators, heirs or assigns, or
their legal representatives ") ; N. D. Rev. C.
189.5, § 5711 (Uke Cal. C. C. P. § 2088); Oh.
Eev. St. 1898, § 5878 (admis-sible in a trial
" between the parties named in the petition or
their privies or successors in interest ') ; Okl.
Stats. 1893, § 4284 (admissible "if a trial be
had between tlie parties named in the petition,
or their privies or successors in interest ") ; Or.
C. C. P. 1892, § 863 (usable on a trial " between
the persons named in the petition as parties
actual, e-xpectant, or possible, or their repre-
sentatives or successors in interest"; see Hill's
Codes for different provisions in an unenacted
statute of 1870) ; 5. D. Stats. 1899, § 6552 (like
Okl. Stats. § 4284) ; Tenn. Code 1896, §§ 5671,
5672, 5682 (notice to the " opposite party " re-
quired; admissible, "in any suit between the
parties to the petition " or their " privies iu
interest"); Tex. Rev. Civ. Stats. 1895, §2277
(usable " in any suit which may be thereafter
instituted by or between any of the parties to
the statement, or those claiming under them ") ;
U. S. Rev. St. 1878, § 867 (" Any court of the
U. S. may, in its discretion, admit as evidence
iu any cause before it any deposition taken in
perpetuam rei memoriam, which would be so
admissible in a court of the State wherein sucli
cause is pending, according to the laws thereof") ;
Utah Kev. St. 1898, §3471 (like Cal. C. C. P.
§ 2088) ; Wash. C. & Stats. 1897, § 6038 (usable
on a trial " between the person at whose request
the deposition was taken and the person named
in the statement, or anv of them, or their suc-
cessors in interest"); Wis. Stats. 1898, § 4121
(usable in an action "between the person at
whose request it was taken and the persons
named in the said written statement, or any of
them, who were notified as aforesaid, or any
person claiming under either of the said parties
respectively concerning the title, claim, or in-
terest set forth in the statement"); § 4134
(deposition taken by special form of notice as
against all persons " may be used by the person
at whose request it was taken or by any person
claiming under him against any person what-
ever in any action or proceeding whereiu shall
be brought in question the title, claim, or in-
terest set forth in the statement ") ; Wyo. Rev.
St. 1887, § 3071 (admissible on a trial "between
the parties named in the petition, or their privies
or successors in interest ").
§§ 1367-1393] ISSUES AND PAKTIES THE SAME. § 1388
would suffice to admit even where the case is not covered by the phraseology
of the statute; i. e. the statute merely secures admissibility in certain
instances, and is not intended to forbid admission in other instances.
It is to be noted that a deposition or former testimony, not offered as such,
is not subject to this rule requiring identity of issues. Where the other
testimony is offered, not as evidence of the truth of the facts asserted in it,
but merely as an utterance having an indirect bearing, it is not hearsay
(post, § 1789) and the ruling requiring cross-examination and identical issues
does not apply. (1) Thus, testimony in another cause may be proved in a
trial ioT perjury so far as it indicates the materiality in that cause of testimony
now charged to be perjured.^ (2) In an action for malicious prosecution, the
testimony on the original prosecution is not admissible from that point of
view, because it could not have served as " probable cause " before it was de-
livered ; yet it would be admissible in the ordinary way as testimony at a
former trial, provided the witness is deceased or otherwise unavailable, and
this principle, so long as parties were disqualified in their own behalf, would
always admit the defendant's own testimony given at the original trial.^
(.3) Where the deposition or testimony embodies an admission hy the oppo-
nent, it is not subject to the present rule.'
§ 1388. Parties or. Privies the Same. It is commonly said that the
parties to the litigation in which the testimony was first given must have
been the same as in the litigation in which it is now offered. But this limita-
tion suffers in practice many modifications ; and properly so, for it is not a
strict and necessary deduction from the principle. At first sight, indeed,
it seems fair enough to argue even that a person against whom former testi-
mony is now offered should have to be satisfied with such cross-examination
as any other person whatever, in another suit, may have chosen to employ.
It is entirely settled that in some such cases he must be satisfied, namely,. in
cases where the other person was a privy in interest with the present party.
The reason for such cases is that there the interest to sift the testimony
thoroughly was the same for the other person as for the present person. The
principle, then, is that where the interest of the person was calculated to in-
duce equally as thorough a testing by cross-examination, then the present
opponent has had adequate protection for the same end. Thus, the require-
ment of identity of parties is after all only an incident or corollary of the re-
quirement as to identity of issue. It ought, then, to be sufficient to inquire
whether the former testimony was given upon such an issue that the party-
opponent in that case had the same interest and motive in his cross-examina-
tion that the present opponent has ; and the determination of this ought to be
left entirely to the trial judge.
Nevertheless the Courts have not, in name at least, often gone so far as to
accept so broad a principle.
" 1 893, People v. Lem Yon, 97 Cal. 224, 226, • The cases involve other distinctions, and
32 Pac. 11 (because " all that was sought to be are collected post, § 1417.
proven here was the mere fact that certain testi- ' Cases cited ante, § 1075 ; 1855, Williams v.
mony had been given "). Cheney, 3 Gray 215, 217, 220.
1733
§ 1388 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
(1) It is well settled that the former testimony is receivable if the differ-
ence of parties consists merely in a difference of nominal parties only, or in
an addition or subtraction on either side of parties not now concerned with
the testimony.^
(2) It is well settled that the former testimony is receivable if the then
party-opponent, though a different person, had the same property-interest that
the present opponent has. The application of this doctrine is usually thought
to involve a resort to the technicalities of the substantive law determining
privity in interest. It is, of course, often necessary to consider to some ex-
tent the rules of substantive law that may be pertinent to show the interest
of the prior party ; for example, where the prior opponent was the present
opponent's intestate or grantor, one cannot determine that the interests are
sufficiently the same without considering the law of property. But it does
not follow that the rules of property should be resorted to as affording
mechanically a solution of the question in evidence. That question is merely
whether a thorough and adequate cross-examination has been had. It is
conceivable that, by an excessively strict application of the rule, only a prior
cross-examination by the very same party, with the same counsel, might have
been deemed sufficient (ante, § 1371). So pedantic a strictness could not be
maintained ; but such relaxation as is conceded must be made with a sole
view to the substantial fulfilment of the principle in's^olved, and not with a
view to any extrinsic and unrelated rules. Whether the test of the evidence-
principle would or would not in a given instance lead to the same result as
the property-rule is immaterial. There is no necessary dependence of the
former upon the latter. The latter should be kept in its place, and should be
the servant, not the master, of the principle of evidence. In spite of all this,
there is an unfortunate judicial inclination to reverse the true relations of
the rules, and to ignore the living principle of evidence while resorting to the
doctrines of substantive law to obtain a merely mechanical rule for solution.
Two aspects of this tendency may be noticed :
(a) It is sometimes said, for example, that " the same rule applies as in
cases of res judicata and estoppel " ; ^ it is asked whether the present oppo-
^ For example : 1834, "Wright v. Tatliam, amination, and of calling witnesses to discredit
1 A. & E. 3 (T. claimed against W. as heir of or contradict his testimony, on the former trial,
J. M., while "W. claimed under a will of J. M. as he would have had if Mr. W. had been the
T. first filed a bill in Chancery against W. and sole plaintiff in that suit or as he would have
three others, and evidence was taken on an had now if B. had been alive and subpoenaed as
issue framed at law in which W. was plaintiff. a witness").
Then T. brought an ejectment action against * 1866, Morgan v. Nicholl, L. R. 2 C. P.
W., in which John Doe was the nominal plain- 117 (the plaintiff's son, supposing the plaintiff
tiff. It was held, when the testimony of a dead and claiming as heir, had brought an action
deceased witness B. at the former trial was of ejectment for the same property against the
offered in the second action, that (1) the nom- defendant's father, now dead ; testimony at
inal difference in the parties on 'T.'s side, and the former trial was rejected ; Erie, C. J. :
(2) the addition of three new parties on W.'s "The present plaintiff is for this purpose as
side, could not prevent the use of the testimony distinct a person from his sou as a perfect
as between T. and W. ; Tindal, C. J. : " Mr. stranger; he does not in any way claim through
T., the lessor of the plaintiff in this action, had him, and he cannot be injured by anything his
precisely the same power of objecting to the son may have done at a former trial"),
competency of B., the same right of cross-ex-
1734
§§ 1367-1393] ISSUES AND PAETIES THE SAME. § 1388
nent is " bound " by the former proceeding ; ^ and the niceties of property-law
are frequently investigated in order to ascertain whether the prior opponent
held by a title precisely coincident with the present opponent's. Now, this
resort to extraneous rules is, for the reasons abbve suggested, fallacious in
theory and misleading in practice. In Morgan v. Nicholl, * for example, it is
perfectly apparent that the son in the prior suit was a person having pre-
cisely the same interest to litigate as the present father, and therefore that
the son's cross-examination would have been an adequate one ; although the
judgment against the son could not, by the rules of res judicata, bind the
father. Again, in litigation by a tenant for life, involving only the validity
of a will or of a prior grant, it is clear that nothing will turn on the precise
quantity of his estate, and that his cross-examination to the points in dispute
will be adequate to justify the use of the testimony against the remainder-
man in his subsequent litigation involving the same issue ; yet the judgment
against one would not bind the other, because the one does not claim under
the other. Again, there is no privity between the parties to a criminal prose-
cution and a civil action for the same injury ; yet testimony given at the
former ought to be admitted in the latter. It is thus apparent that the
proper application of the principle of evidence cannot be mechanically
restricted by the rules of judgments and land-titles.
(b) Again, proceeding upon the same fallacious notion, it is sometimes said
that there must be " reciprocity " or " mutuality I' i. e. that former testimony,
already cross-examined by B, cannot now be offered by A against B unless
B could now have offered it against A.} But for this there is not a shadow
of justification. The sole question is whether B has had an adequate oppor-
tunity by cross-examination to sift this testimony; this, by hypothesis, he
has had; and so the rule is satisfied. It is quite immaterial whether A
would have been able to object (for example, because he came afterwards
into the suit) to its use against him ; the testimony is not offered against A,
but by A; and the whole object of the present rule is to protect the oppo-
nent against whom the testimony is offered, i. e. B, and B has already been
thus protected. To exclude the testimony against B, who has been protected,
' 1747, Eade v. Lingood, 1 Atk. 203 (bill now plaintiffs, assignees of A. S.'s firm, could
by creditors against T. L. and his daughter not use them, because "there is no recipro-
M. L., charing fraud in pretending that an city") ; 1836, Humphreys!). Pensara, 1 My). &
estate in his daughter M. L.'s name was bought C. 580, 586 (same litigation; same ruling by
with her money, not his ; the examination of L. C. Cottenham, but here the plaintiffs are
the daughter M. L. as a witness in bankruptcy said to be the assignees of only one A. C, one
proceedings against T. L. shortly before was of the partners of A. S. ) ; 1835, Norris v.
rejected, because "M. L. is not dt all bound Mouen, 3 Watts 470 (Huston, J.: "Certain
by the proceedings in a commission of bank- other heirs of J. N. had brought a former
ruptcy against T. L."). ejectment against the present defendant to re-
* IsTote 4, supra. cover their respective shares. . . . The present
" 1836, Atkins v. Humphreys, 1 Moo. & defendant could not use depositions taken in
Eob. 523 (whether a conveyance to A. S. or that cause against the present plaintiffs, for
partner was bona fide as against the defendants they had no opportunity to cross-examine, and
interested in the grantor's estate; in a suit by it must be reciprocal") ; 1821, Boudereau v.
A. S. against these defendants to set aside the Montgomery, 4 Wash. C. C. 186. This doctrine
conveyance, depositions taken by A. S. had goes back a long distance : 1669, Eushworth v.
been used by these defendants ; held, that the Pembroke, Hardr. 472.
1735
§ 1388
EIGHT OF CROSS-EXAMINATION.
[Chap. XLIV
because A, who does not need or want protection, has not been protected, is
as absurd as it would be to forbid A to use against B a witness disqualified
for B by interest, on the ground that A could have objected to B's produc-
tion of the witness on B's behalf, — which no one ever thought of maintain-
ing. The fallacious doctrines of the foregoing limitations have been properly
criticised in the following passage :
1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. "VI, c. XII (Bowring's ed.
vol. VII, p. 171) : " Another curious rule is, that, as a judgment is not evidence against a
stranger, the contrary judgment shall not be evidence for him. If the rule itself is a
curious one, the reason given for it is still more so : ' Nobody can take benefit by a ver-
dict, who had not been prejudiced by it, had it gone contrary ' : a maxim which oue
would suppose to have found its way from the gaming-table to the bench. If a party be
benefited by one throw of the dice, he will, if the rules of fair play are observed, be preju-
diced by another ; but that the consequence should hold when applied to justice, is not
equally clear."
The rulings in the different jurisdictions exhibit varying degrees of liber-
ality ; and naturally the result depends much on the facts of the particular
case.®
^ lu the following list, rulings of no service
as precedents have not been stated in detail ;
statutes dealing additionally with the subject
have been placed iu the notes to the preceding
section : England: 1664, Terwit v. Gresham,
Freeni. Ch. 184, 1 Eq. Cas. Abr. 227, Cas. Ch.
73 (depositions in former cause on same subject,
admitted, though the parties did not claim under
the former parties, but "the tertenants were
then parties ") ; 1669, Rushworth v. Pembroke,
Hanlr. 472 (tenant and lord of manor, in re-
spective suits ; excluded) ; 1686, Coke v. Foun-
tain, 1 Vern. 413 (depositions in action against
father, not read against son not claiming as
heir) ; 1695, Bath h. Bathersea, 5 Mod. 9 (depo-
sitions iu former suit against plaintiff by other
parties, admitted "because the defendant shel-
ters himself under the other's title"); 1702,
Lord Peterborough v. Duchess of Norfolk, 1
Vern. 264, 3 Brown P. C. 539, 545, se7nble (depo-
sitions against a tenant for life, not usable
against a reversioner or remainder-man) ; 1703,
Nevil V. Johnson, 2 Vern. 447 (depositions on
bill of testator's creditors to set aside fraudulent
conveyance, read upon legatees' bill for same
cause against same grantees) ; 1747, Eade a.
liiugood, 1 Atk. 203 (see note 3, supra) ; 1810,
Banbury Peerage Case, in App. to LeMarchant's
Gardner Peerage Case, 410 (issue of legitimacy ;
testimony under bill to perpetuate, filed in 1640,
excluded ; inadmissible " in any cause in which
the parties were not the same parties as the
parties in the cause in Chancery, or did not
claim under some or one of them ") ; 1826, Pratt
V. Barker, 1 Sim. 1, 5 (depositions not read
against parties afterwards joined) ; 1826, Doe
V. Passiugham, 2 C. & P. 440, 445 (tenant for
life and remaiuder-man as privies ; not decided
as to this point) ; 1826, Goodenough v. Alway,
2 Sim. & St. 481 ; 1827, Williams v. Broadhead,
1 Sim. 151 ; 1834, Wi-ight u. Tatham, 1 A. &
1736
E. 3 (see note 1, supra) ; 1834, Doe v. Derby,
ib. 783, 786; 1836, Atkins v. Humphreys, 1
Moo. & Bob. 523 (see note 5, supra) ; 1836,
Humphreys v. Pensam, 1 Myl. & G. 580, 586
(see uote 5, supra) ; 1852, Hulin v. Powell, 3
C. & K. 323 (admitting testimony formerly
given for the defendant R. in a suit for the
same land by the same plaintiff against R.,
whose expenses were paid by the present defend-
ant, also a claimant; Williams, J., "The
admissibility of depositions in cases of this kind
does not depend on mere technical grounds ;
and one question is. Had the lessor of the plain-
tiff an opportunity of cross-examining the wit-
ness ? He certainly had, and I see no fair
reason for supposing that the cross-examination
would have been to a different effect, whether
the lessor of the plaintiff knew or did not know
whether Mr. P. was the real defendant") ; 1866,
Morgan v. NichoU, L. R. 2 C. P. 117 (see note 2,
supra) ; 1881, Llanover v. Homfi-ay, L. E. 19
Ch. D. 229 ; 1894, Printing Tel. & C. Co. v.
Drucker, 2 Q. B. 801 (action for capibd-instal-
ments ; plea, false representations inducing to
become a shareholder ; testimony in a similar
action by the same plaintiff against another
person pleading the same defence, excluded) ;
Canada: 1877, Domville «. Ferguson, 17 N. Br.
40, senMe (successive actions against agent and
principal for wrongful detention of goods ; the
principal's testimony in the first suit, held ad-
missible in the second) ; 1900, Carte v. Dennis,
5 N. W. Terr. 32, 40 (an examination of a de-
fendant, on discovery, is admissible against a
co-defendant if the latter has had an opportunity
of cross-examination ; here a rule of Court ap-
plied in part) ; 1894, Walkerton v. Erdman, 20
Ont. App. 444, 23 Can. Sup. 352 (action for
injuries in a ditch, the defendants being a
municipal corporation and H. ; the deceased
person's deposition was taken, after notice to
§§ 1367-1393] ISSUES AND PARTIES THE SAME.
§ 1389
§ 1389. Deposition used by Either Party ; Opponent's Use of a Deposition
taken but not read. It has sometimes been thought — perhaps under the
the former defendant only, and the action was
abated by death, and renewed by his represent-
ative under the statute ; held, by three judges to
two, that the deposition was admissible against
the former defendant, because the testimony
related to an issue of claim the same in sub-
stance, and because the judgment might be
rendered against the former defendant only ;
good opinion by King, J.); United States;
Ala.: 1847, Holman v. Bank, 12 Ala. 369,
408 ; 1851, Long v. Davis, 18 id. 801, 802
(former party deceased, represented here by ad-
ministrator ; admitted) ; 1850, Clealaud v. Huie,
ib. 347 fsimilar) ; 1883, Goodlett v. Kelly, 74
id. 219 (in the former suit the present parties
were reversed, except that a now defendant K.,
transferee of the others, was not then a party ;
admitted) ; 1886, Turiiley v. Hanna, 82 id. 139,
143, 2 So. 483 ; 1896, "Wells o. Mge. Co., 109
id. 430, 20 So. 136 (defendant administrator
succeeded by administrator d. b. n., and » new
claimant added as defendant after revivor of the
bill ; testimony in the preceding stage admitted
against them); 1897, Smith v. Keyser, 115 id.
455, 22 So. 149 (the plaintiff acted in the one
suit individually, in the other as executrix ;
admitted) ; 1901, Simmons v. State, 129 id. 41,
29 So. 929 (testimony at a trial of another
person for the same offence, excluded) ; Cal. :
1887, Fredericks v. Judah, 73 Cal. 604, 608, 15
Pac. 305 (former party executrix, present party
heir ; admitted) ; 1889, Marshall v, Hancock,
80 id. 82, 85, 22 Pac. 61; 1889, Briggs v.
Briggs, ib. 233, 22 Pac. 334 (present party
claindng under deed of gift of former party ;
admitted) ; 1897, Lyons v. Marcher, 119 id.
382, 51' Pac. 569 (action by L. against F. A.
M. and C. A. M. ; deposition in former suit by
L. against F. A. M., C. A. M., D. L. M., and
A. E. M., offered by L., excluded ; ruling not
sound) ; 1 898, McDonald v. Cutter, 120 id. 44,
52 Pac. 120 ; 1899, Wolters v. Eossi, 126 id.
644, 59 Pac. 143 (actions consolidated by Court
order ; depositions in each mutually admissible) ;
Bel..- 1866, Dawson v. Smith, 3 Houst. 335,
340 ; Ga.: 1878, Haslam v. Campbell, 60 Ga.
650, 664; 1881, Hughes «. Clark, 67 id. 19,
23 ; 1881, Atlanta & W. P. E. Co. v. Venable,
ib. 697, 699 (former party, a mother suing for
personal injuries ; present party, her child suing
for her death from those injuries ; admitted) ;
III.- 1857, Wade v. King, 19 111. 301, 308
(successors in interest ; admitted) ; 1864, Good-
rich V. Hanson, 33 id. 498, 608 (former party,
an agent pleading property in principal, in
replevin ; present party, the principal suing in
trover ; admitted) ; 1871, Hutchings v. Corgan,
57 id. 71 (intestate and administrator are privies) ;
Ind. : 1876, Indianapolis & S. L. E. Co. v.
Stout, 53 Ind. 168 (deceased and representative
are privies) ; la. : 1869, Shaul v. Brown, 28 la.
87, 50 ; 1884, Atkins v. Anderson, 63 id. 739,
743, 19 N. W. 323 (former party the assignor
of present party ; admitted) ; 1897, Krueger v.
Sylvester, 100 id. 647, 69 N. W. 1059 (assault
and battery ; testimony on a jirior criminal
charge, of assault with intent to commit bodily
injury, for the same act, admitted; "the ad-
missibility of' such evidence seems to turn on
the right to cross-examine, rather than on the
precise identity of the parties ") ; 1897, Brown
V. Zachary, 102 id. 433, 71 N. W. 413 (depo-
sition taken before opponent's joinder as party,
excluded) ; 1897, State v. Snuth, ib. 656, 72
N. W. 279 (former charge of murder against
T. ; the testimony of a deceased witness there
offered by the State, now received from this
defendant to prove the circumstances of the
same killing) ; Ky. : 1830, Arderry v. Com., 3
J. J. Marsh. 183 ; 1871, Kerr v. Gibson, 8 Bush
129 (new p.arty joined by amendment ; depo-
sition not admitted as to hito) ; 1895, Oliver v.
E. Co., — Ky. — , 32 S. W. 759 (excluding,
in an action by i wife, joining husband, for
pej'sonal injuries, a deposition taken in a former
action by the husband for loss of service by the
same injuries; Lewis, J. ; "While reason for
the rule mentioned does not exist to the same
extent as if there had been different occurrences
or transactions, we can very well see how dis-
regard of it by the Court might have taken
defendant by sui'prise, and deprived it of the
advantage of developing, on cross-examination,
admissions and confessions of the wife it was
not permitted to show in the other suit ") ;
La. : 1826, Hennen v. Monro, 4 Mart. s. s. 449,
451 (action by a shipper against a vessel owner
for general-average contribution ; in a prior ac-
tion for loss of the goods in q\iestion charging
the defendant as carrier, defendant had succeeded ;
testimony of deceased and absent witnesses at
that trial was now offered ahd admitted) ;
1901, State o. N. 0. Waterworks Co., 107
La. 1, 31 So. 395 (excessive water-rates ; testi-
mony at a former suit, brought by private per-
sons on the same contract proceeded upon by
the State in the case at bar, and involving the
same issues, admitted) ; Md. . 1843, Mitchell
V. Mitchell, 1 Gill 66, 83 (proponent deceased,
and administrator not then made a party ; a
deposition taken then on behalf of that side,
though with notice, insufficient under St. 1828,
c. 165, tlie deposition not being taken by
"either party ") ; Mass. : 1843, Warren v.
Nichols, 6 Mete. 261 (general principle stated) ;
1873, Yale v. Comstock, 112 Mass. 268 (trans-
feree and transferor of land are privies) ; Mieh. :
1902, Waterhouse v. Waterhouse, 130 Mich. 89,
89 N. W. 685 (testimony in a former trial, one
of the then parties in interest being now only
a next friend ; excluded) ; Minn. : 1890, Lougee
V. Bray, 42 Minn. 323, 44 N. W. 194 (H. and
B. coming' in by separate pleas as interveners,
but tendering the same issue, a deposition taken
by H. was admitted for B.) ; Miss. : 1877,
Strickland v. Hudson, 55 Misa. 235, 241 ; Mo. :
1870, Parsons v. Parsons, 45 Mo. 265 (discon-
tinued suit by son against father, revived against
latter's widow; admitted); 1872, Couglilin o.
Hanessler, 50 id. 126 ; 1879, Adams v. Raigncr,
1737
§ 1389
RIGHT OF CEOSS-EXAMINATION.
[Chap. XLIV
influence of the preceding fallacies — that where the party taking a deposi-
tion has not chosen to put it in as evidence, the opponent, against ■whom it
was taken, is not at liberty to do so. So far as the present principle is con-
cerned, there is no support for this prohibition. The chief reliance of the
few Courts that enforce it seems to be an opinion weighted with the great
name of Chief Justice Shaw :
1837, Shaw, C. J , in Dana v. Underwood, 19 Pick. 99, 104 : " Where one party takes a
deposition, it is at his option to use it or not, as he thinks fit; and it has been held that,
where a deposition taken hy one party is returned and filed, and the party taking it does
not think proper to use it, it cannot be read by the other party without consent. One
reason for this, among others, is obvious : the parties are under very different rules in
the mode of putting their questions to a deponent. The taker is restrained from asking
leading questions ; the adverse party may put a leading question. A party may try the
experiment of taking the deposition of a person known to be a willing witdess for the
other side, or, believing that he is favorable to his own side, finds the contrary in the pro-
gress of the examination ; the adverse party, finding him a willing witness on his side,
puts leading questions and gets out answers which lie could not do if he were his own
witness ; now if this deposition, instead of being used at the option of a taker, may be
used by the adverse party without and against his [the taker's] consent, it would be wholly
reversing the rules of examination and going counter to the reasons on which those rules
were established. . . . The strong, and in our judgment the decisive objection, is, the
69 id. 363 (successor in title ; admitted) ; 1879,
Breeden v. Feurt, 70 id. 624 (administrator
reviving intestate's suit ; admitted) ; Nebr. :
1870, Holmes v. Boydston, 1 Nebr. 346, 354
(depositions taken before amendment by adding
former partners as plaintiffs, admitted) ; N. H. :
1858, Orr v. Hadley, 36 N. H. 580 ; iV. V. :
1806, Jackson v. Bailey, 2 John. 20 (general
principle) ; 1818, Jackson v. Lawson, 15 id.
544 ; 1829, Jackson v. Crissey, 3 Wend. 252
(transferee of land, held not privies) ; 1880,
Wood u. Swift, 81 N. Y. 31 (testimony taken
before referee before compulsory joining of new
party opponent, not admitted against him, even
though liberty to re-cross-examine had been al-
lowed ; clearly erroneous) ; iV. 0. : 1884, Brj'an
V. Malloy, 90 N. C. 503, 510 ; 1891, Stewart v.
Eossiter, 108 id. 588, 591, 13 S. E. 234 ;
Oil.. 1884, Bryan v. O'Connor, 41 Oh. St.
368, 372 (depositions not admissible against
parties brought in after the taking) ; 1891,
McClaskey v. Barr, 47 Fed. 155, 165 (depo-
sition of life-tenant, taken to show ownership
of fee, admitted under Ohio statute in partition-
suit to show identity of co-tenants out of posses-
sion) ; Fa. : 1824, Watson v. Gilday, 11 S. &
R. 342 ; 1827, Walker v. Walker, 16 id. 379,
381 (depositions in suit against one only of
present defendants holding by separate title,
not admitted against the other) ; 1828. M'CuUy
V. Barr, 17 id. 415, 451 ; 1839, Cooper w. Smith,
8 Watts 536, 539 (ejectment against successor in
interest ; admissible) ; 1861, Wright v. Cumpsty,
41 Pa. Ill ; 1882, Galbraithw. Zimmerman, 100
id. 374, 376 (former party represented by heirs ;
admitted) ; S. 0. : 1847, Mathews v. Colburn,
1 Strobh. 269 ; 1903, State v. Milam, 65 S. C.
321, 43 S. E. 677 (trial of M., followed by a
1738
second trial of M. & McC, for the same offence ;
testimony of a deceased witness at the first trial,
held admissible, as against M., though not as
against MoC.) ; S. D. : 1896, Smith v. Hawlcy,
8 S. D. 363, 66 N. W. 942 ; 1897, Salmer v.
Lathrop, 10 id. 216, 72 N. W. 570 (deposition
taken by the plaintiff ; the additioji before trial
of two nominal plaintiffs, held not to prevent
its use against the defendant) ; U. S. : 1821,
Boudereau v. Montgomery, 4 Wash. C. C. 186
(five heirs as parties in one action, and all,
about one liundred, in the present action ; ex-
cluded) ; 1832, Boardman v. Reed, 6 Pet. 328,
340 ; 1861, Philadelphia W. & B. E. Co. v.
Howard, 13 How. 307, 335 (one co-plaintiff in
former suit now lacking ; admitted) ; Va. :
1799, Eowe V. Smith, 1 Call 487.
The statute making survivors incompetent to
testify against deceased opponents may have bear-
ing here ; see Speyerer v. Bennett, 79 Pa. 445 ;
for the effect of such disqualification on the use
of the survivor's former testimony, see post,
§ 1409.
How far the use of a judgment between other
parties is allowable (particularly, a conviction of
a principal against an accessory) is not a question
of evidence (as noted arUe, § 1347) ; see the
following cases: 1832, R. v. Turner, 1 Mood.
Cr. C. 347 ("many of the judges appeared to
think " that the conviction of a principal was
not receivable); 1899, Kirby v. U. S., 174
IJ. S. 47, 19 Sup. 574 (a statute making the
judgment of conviction of principal in embezzle-
ment or larceny conclusive evidence of the fact
of embezzlement or larceny of such goods, in
a prosecution against a knowing receiver of
such stolen or embezzled goods, held uncon-
stitutional).
§§ 1367-1393] DEPOSITION USED BY EITHEE PARTY. § 1389
party would be allowed to introduce a deponent as his own witness whom he has had tho
right to cross-examine and the adverse party has not." *
The answers to this argument are not difficult to discover: (1) The vital
assumption of the above opinion is incorrect, namely, that leading questions
would have been forbidden to the taker of the deposition ; for it is well
settled {ante, §§ 773, 774) that, if the deponent had proved to be an unwil-
ling or hostile witness, the taker could have put leading questions. (2) The
objection stated in the opinion, even if it were correctly stated, would apply
equally to one calling a hostile witness to the stand; yet no one supposes
that in such a case the calling party, on discovering the witness' hostility,
could withdraw him and compel the opponent to call him ; so that, on the
theory of the above opinion, a party taking a deposition would be given a
peculiar advantage in suppressing testimony, which he would not have if he
called the same witness to the stand. (3) Finally, the whole notion of cross-
examination refers to one's right to probe the statements of an opponent's
witness, not one's own witness ; thus, if A has taken X's deposition or called
X to the stand, and B has cross-examined, it is not for A to object that he has
not had the benefit of cross-examination ; that benefit was not intended for
him nor needed by him ; it was intended only to protect against an oppo-
nent's witness, who would be otherwise unexamined by A ; and if A has had
the benefit of examining a witness called on his own behalf, he has had all
that he needs, and the right to probe by cross-examination is B's, not A's.
In the following passages the correct doctrine is vindicated :
1822, Tilghman, C. J., in Gordon v. Little, 8 S. & R. 532, 548 : " I do not perceive the
force of this distinction between plaintiff and defendant. When the deposition is taken
it ought to be filed ; it is not the property of the party on whose behalf it was taken ; nor
has he any right to withhold it. But it often happens that the party at whose instance it
was taken finds himself mistaken and tha testimony proves to be unfavorable to him ; in
such case the adverse party lias a right to make use of it [subject only to the condition of
showing the witness personally unavailable]."
1846, Goldthwaite, J., in Stewart v. Hood, 10 Ala. 600, 607 : " The question, then, conies
to this : Can the adverse party, who has cross-examined, use the deposition taken at the
instance of the other party ? We do not well see what reasonable objection there is to
such a course. If the witness was examined in open court, it is very certain we should
never hear the objection of intere.st from the party offering him ; and there certainly is
no good to result from a practice which will permit a party first to ascertain by actual
examination what a witness will swear, and then admit or exclude him at pleasure."
1849, Williams, C. J., in Nash v. State, 2 Greene la. 286, 298 : "Has he [the accused]
been denied the benefit of this right [of confrontation of the witnesses] ? The testimony
was of his own procurement. The witnesses were selected by himself, and he propounded
the questions which were answered by them. At his instance the depositions were re-
^ Accord : 1889, Anderson v. State, 89 Ala. and . . . could not impeach or discredit them");
12, 7 So. 429 (in ci-iminal cases, against the 1854, Norvell v. Oaiy, 13 Tex. 31 (excluded,
accused ; here the deposition had been taken where uo cross-interrogatories had been filed,
but not used by him) ; 1854, Sexton v. Brock, under a statute allowing either party to use
15 Ark. 345, 351 (opponent's deposition not " all depositions where cross-interrogatories have
usable because "he may be taken at a disad- been filed and answered"); 1856, Harris v.
vantage, because he was restrained from putting Leavitt, 16 id. 340, 343 (similar),
leading (piestions on his examination in chief,
VOL. II. — 47 1739
§ 1389
RIGHT OF CROSS-EXAmNATIOlf.
[Chap. XLIV
turned and filed in the court, as a part of the case for hearing and in order to sustain his
defence on the issue joined. The evidence, if relevant and material, was in the possession
of the Court by his own act. . . . AVhen filed, it was in the custody of the Court as evidence
in the case. We cannot see under the circumstances how a moral wrong or injustice in
fact was done to the prisoner."
1895, Torrance, J., in Ansonia v. Cooper, 66 Conn. 184, 33 Atl. 905 : " In most cases,
depositions are taken for the purpose of being used by the party taking them. The cases
where they are not so used are comparatively few in number ; but in such cases, if the
right to use the depositions be denied to tlie adverse party, it may work a great hardship
and injustice. It will seldom be known in advance of the actual trial whether the party
taking the depositions does or does not intend to use them, and, when it is known that he
will not use them, it will usually be too late for the adverse party to avail himself of the
testimony of the deponents in any way, although he may have relied on that testimony
in support of his case. If this right be denied to the adverse party, it will in very many
cases necessitate the taking of two sets of depositions of the same witnesses, involving a
useless expenditure of time and money. We see no good reason why this should be done;
at least, not in cases like the present, where the depositions were filed with the clerk, in
whose custody they must, by statute, remain, unless suppressed by the Court, until final
judgment in the cause." ^
* Such is the result now practically every-
Avliere accepted ; in some, jurisdictions a statute
expressly so provides: Eng. 1825, JlTntyre i'.
Laj'ard, Ry. & Moo. 203 (plaintiff allowed to
use answers to interrogatories on a commission,
given by defendant's witnesses but not put in
by defendant ; but the ruling was apparently
with hesitation) ; 1836, Procter v. Lainson, 7
C. & P. 629 (Abinger, L. C. B. : "Under a
fudge's order, they are examined as much for
oue side as the other") ; Ala. Code 1897,
§§ 1867, 1871 (for depositions inperp. mem.) ;
1846, Stewart v. Hood, 10 Ala. 600, 607 (see
quotation supra) ; 1903, Curtis v. Parker, 136
id. 217, 33 So. 935 ; Alaska 0. C. P. 1900, § 656
(like Or. Annot. C. 1892, § 827) ; Ariz. P. C.
1887, §§ 2075, 2097 (in criminal cases, for dep-
ositions talcen by accused); Rev. St. 1887, § 1849
(in civil cases, when cross-interrogatories have
been iiled and answered) ; § 1359 (testimony
before committing magistrate) ; Cat P. C. 1872,
§§ 1345, 1362 ; C. C. P. 1872, §§ 2028, 2034,
2088 ; Commissioners' amendment of 1901 (the
number of § 2034 changed to § 2021 ; the
§ 2023 repealed in 1901 and its substance en-
acted in § 2021 ; for the validity of these
amendments, see ante, § 488) ; Cok>. C. C. P.
1891, § 343 (asable by either party "against
any party giving or receiving the notice " ;
compare ib. § 344) ; § 370 (depositions in
perpeluam, usable by either party) ; Wiw. Civil
Laws 1897, § 1392 (depositions in perpeluam) ;
Ida. Rev. St. 1887, §§ 6066, 6070, 6121, 8169,
8189 ; m. : 1877, Adams v. Russell, 85 111. 284,
287 ("unless he obtains leave before the trial
and withdraws it ") ; Ind. : 1872, Woodruff v.
Garner, 39 Ind. 246, sembU (the non-taker,
after reading the deposition, allowed to intro-
duce another taken by himself from the same
witness) ; la. Code 1897, § 4723 (for in perpel-
uam memoriam depositions) ; 1 849, Nash «. State,
2 Greene 286, 298 (accused's depositions allowed
to be used by the prosecution ; here prescribed
by statute, hut also independently decided as a
1740
constitutional question); 1854, Crick f. McClin-
tic, 4 id. 290 ; 1859, Pelamourges v. Clark, 9
la. 1, 21 ; 1862, Wheeler v. Smith, 13 id. 564 ;
1876, Bale v. Gibbs, 43 id. 380, 382 ; 1884,
Brown t>. Byam, 65 id. 374, 21 N. W. 684 ;
1885, Citizens' Bank v. Rhutasel, 67 id. 316,
319, 25 N. W. 261 ; Kan. Gen. St. 1897, c. 95,
§ 387 (depositions in perp. mem.) ; 1887, Rucker
V. Reid, 36 Kan. 468, 13 Pae. 741 ; Ky. : 1817,
Rogers v. Barnett, 4 Bibb 480 (objection that
a deposition was taken at the instance of the
appellant, the party not using it, overruled) ;
1850, Young u. Wood, 11 B. Monr. 123, 134
(same ruling); 1861, Musick e. Ray, 3 Meto.
427, 431; 1869, AVell v. Silverstone, 6 Bush
698, 700 ; 1871, Sullivan v. Norris, 8 id. 519,
520 ; 1903, St. Bernard Coal Co. v. Southai-d, —
Ky. — , 76 S. W. 167 ; La. Rev. L. 1897, § 617
(civil cases) ; Me. : 1837, Polleys v. Ins. Co., 14
Me. 141, 147, 153 (by a majority ; a deposition
left on file after the first term may be read by
the opponent) ; Mass. : 1852, Linfield v. O. C.
R. Co., 10 Cush. 562, 570 (the non-taker may
compel the reading of the answers to a deposi-
tion taken hut not used by the opponent ;
unless, the deposition having been taken for
the purpose of meeting the testimony of an
opposing witness who is after all not introduced,
the taker has given prior notice of his con-
ditional purpose) ; Minn. .-1886, Smith «. Capital
Bank, 34 Minn. 436, 26 N. W. 234 (even under
a stipulation "to be introduced ... on behalf
of said " party taking it) ; Mo. Rev. St. 1899,
§ 4640 (depositions in perpeluam) ; 1846, Greene
V. Chickering, 10 Mo. 109, 111 (deposition filed
may be read by the opponent) ; 1862, McClin-
tock V. Curd, 32 id. 411, 417 (nor is notice re-
quired) ; MorU. C. C. P. 1895, §§ 3360, 3362,
3425 (like Cal. C. C. P. §§ 2028, 2034, 2088) ;
P. C. §§ 2490, 2513 (like Cal. P. C. §§ 1345,
1362) ; mbr. : 1883, Converse ». Mever, 13Nehr.
190, 15 N. W. 340 ; 1901, Ulrich v. Mo.Con-
aughey, 63 id. 10, 88 N. W. 150 ; 1901, Hamil-
ton B. S. Co. V. Milliken, 62 id. 116, 86 N. W.
§§ 1367-1393] DEPOSITION USED BY EITHER PARTY. § 1389
But the propriety of allowing the non -taker's -use of the deposition, so far
as the present principle is concerned, must be distinguished from the pro-
priety of allowing its use with reference to wholly distinct rules of evidence.
The contrariety of rulings on the subject is chiefly due to the circumstance
that different results may be reached according as one or another rule of evi-
dence is being invoked. There are, besides the present rule, three others
which may have to be considered, (a) The rule of Confrontation {post,
§ 1395) requires the deponent to be produced in person, if he can be, and
this rule applies as well to the non-taker as to the taker of the deposition ;
so that, before using it, the non-taker must show that the deponent is deceased
or otherwise unavailable.^ (b) The deponent may be disqualified by interest
as a witness for the non-taker ; in that case, it is necessary to inquire whether
the taker, by the mere taking without using, has so made the deponent his
own witness that he is barred from objecting to the deponent's disqualification
for the non-taker ; this involves the whole doctrine of impeaching one's own
witness, and has been already dealt with elsewhere (ante, §§ 909, 913).
(c) The non-taker may offer the deposition, not as the testimony of the de-
ponent (i. e. from the present point of view), but as an assertion adopted by
the taker and made his own by using it on a former occasion, i. e. as an ad-
mission hy the party taking it and then using it ; in this view the limitations
of the present subject — as to parties, issues, cross-examination — disappear
entirely, and the only question is whether the taker's former use of the de-
position has been such that he can fairly be said to have adopted its state-
ments as his own. This is a question of Admissions, dealt with elsewhere
{ante, § 1075).*
913 ; Nev. Gen. St. 1885, §§ 3431, 3432, 3444, on the trial") ; Eev. Civ. Stats. 1895, § 2288
4036 ; N. J. : 1903, Wallace M. & Co. v. Leber, (" When cross-interrogatories have been iiled
— N. J. L. — , 55 Atl. 475 ; N. M. Comp. L. and answered," either party may use the de-
1897, § 3046 ; N. Y. C. C. P. 1877, § 830, as positions) ; compare the earlier Texas citations,
amended by St. 1899, c. 352 (testimony at a supra, note 1; U. S. : 1809, Yeaton v. Fry, 5
former trial maybe read "by either party"); Cr. 335, 343 (defendant objected to plaintiff
§ 911, C. Cr. P. 1881, §§ 631, 657 ; N. C. : 1805, using defendant's deposition because defendant
Collier v. Jeffreys, 2 Hayw. 400 ; 1880, Strud- had not given plaintiff proper notice ; Mar-
wick V. Broadnax, 83 N. C. 401, 404 ; N. £>. shall, 0. J. : " The admission of notice by the
Eev. C. 1895, § 5711 {in perpetuam) ; §§ 8383, plaintiff is certainly sufficient, if notice to him
8397 (criminal cases); 1902, First Nat'l Bank was necessary"); Utah Rev. St. 1898, §§ 3454,
V. Minneapolis & N. E. Co., 11 N. D. 280, 91 3459, 3471, 5037 ; so also for former testimony :
N. W. 436 (statute applied) ; OH. Stats. 1893, §§ 3475, 6013 ; Va. Code 1887, § 3367 ; 1826,
§§ 5357, 5371 (depositions taken for accused ; M'Mahon v. Spangler, 4 Rand. 51, 56, senible;
Or. C. C. P. 1892, §§ 827, 863 ; 1902, Tobin v. Wash. 0. & Stats. 1897, § 6027 ; W. Va. Code
Portland F. M. Co., 41 Or. 269, 68 Pao. 743 ; 1891, c. 130, § 37 ; 1869, Echols v. Staunton,
Pa. : 1822, Gordon v. Little, 8 S. & R. 532, 548 ; 3 W. Va. 574, 578 : JVis. Stats. 1898, § 40 ;
1867, O'Connor v. American I. U. Co., 56 Pa. 1862, Juneau Bank v. McSpedon, 15 Wis. 696
234, 238 ; S. I. Gen. L. 1896, i;. 244, § 27 ; (good opinion by Paine, J.) ; 1873, Hazleton v.
S. D. Stats. 1899, § 6552 (m perpetuam) ; Union Bank, 32 id. 34, 44 ; Wyo. Rev. St.
§§ 8818, 8832 (criminal cases) ; Tenn. : 1872, 1887, § 3071 (depositions in perpetuam).
Brandon v. Mullenix, 11 Heisk. 446, 449 ; 1897, * The authorities are collected in § 1416.
Saunders v. R. Co., 99 Tenn. 130, 41 S. W. * Moreover, snch use of a deposition by the
1031; Tex. C. Cr. P. 1895, §§ 797, 798 (ao- non-taker does not authorize the use of teMmoret/
eused's depositions, taken not on the ground of contained in the deposition but not in itself
non-residence or age or infirmity, cannot be admissible: 1832, Wilson v. Calvert, 5 Sim.
used by him except after giving his consent 194 (deposition taken by the plaintiff but not
" that the entire evidence or statement of the used by him, not admitted for the defendant,
witness may be used against him by the State because it concerned a conversation of the de-
1711
§ 1390 RIGHT OF CROSS-EXAMINATION. [Chap. XLIV
3. Conduct of the Cross-examination itself, as afiecting Opportunity of
Cross-examination.
§ 1390. Failure of Cross-examination through the Witness' Death or Illness.
There may have been an adequate opportunity of cross-examination {ante,
§ 1371), so far as depends upon the nature of the tribunal or the state of the
issues and parties ; yet the required opportunity may nevertheless practically
have failed, through circumstances connected with the conduct of the exam-
ination. These circumstances may be distinguished under five heads : (1) the
witness' death or illness intervening to prevent or curtail cross-examination ;
(2) the witness' refusal to answer on cross-examination or the party's pre-
vention of his answer; (3) the witness' answering the direct examination
" non-responsively," i. e. without deaUng with the subject of the question ;
(4) the framing of the direct examination so as to prevent adequate
cross-examination ; (5) sundry circumstances preventing adequate cross-
examination.
(1) Where the witness' death or lasting illness would not have intervened
to prevent cross-examination but for the voluntary act of the witness himself
or the party offering him — as, by a postponement or other interruption
brought about immediately after the direct examination, it seems clear that
the direct testimony must be struck out.^ Upon the same principle, the
same result should follow where the illness is but temporary and the offering
party might have reproduced the witness for cross-examination before the
end of the trial.^ But, where the death or illness prevents cross-examination
under such circumstances that no responsibility of any sort can be attributed
to either the witness or his party, it seems harsh measure to strike out all
that has been obtained on the direct examination. Nevertheless, principle
requires in strictness nothing less. The true solution would be to avoid any
inflexible rule, and to leave it to the trial judge to admit the direct examina-
tion so far as the loss of cross-examination can be shown to him to be not in
that instance a material loss.* Courts differ in their treatment of this difficult
situation ;* except that, by general concession, a cross-examination begun but
fendant which was usable as an admission and the testimony was excluded) ; 1844, Forrest
against him but not in his favor) ; 1880, Forbes v. Kissam, 7 Hill N. Y. 470.
V. Snyder, 94 111. 374, 378. * 1815, Clements v. Benjamin, 12 John. 299.
For the prohibition against the opponent's ^ ^ As in Scott v. McCann, Md., infra.
using a cross-examinaMon when the direct ex- * Eng. : 1828, Jones v. Fort, 1 M. & M. 196
amination has been excluded, see post, § 1893. (defendant's examination in bankruptcy was of-
For the rule about putting in the wtwle of a fered by plaiutifif ; the cross-examination had
deposition, see post, §§ 2103, 2115. been postponed at the commissioners' request,
^ 1880, Sperry v. Moore's Estate, 42 Mich, and in the meantime the deponent was stricken
361, 4 N. W. 13 (at the former trial, the ex- with apoplexy ; yet the examination was re-
amination of the witness had been stopped just celved, probably as containing admissions, and
before cross-examination, in order that the party not as being strictly a mere witness' deposition) ;
offering might put on another witness ; but the 1837, E. v. Hagan, 1 Jebb Cr. C. 127, Ire. (a
former witness died shortly after and before witness fainted .shortly after his cross-examina-
an opportunity for cross-examination was had ; tion began ; held, by a vote of 7 to 5 judges.
Graves, J. : " There was here no such oppor- that the direct examination should be received,
tunity [to cross-examine], and the want of it the case standing "upon the same principle [as
was caused by the claimant [the party offering], death], fatality or the act of God" ; the leading
and the estate was in no way answerable for it, ' case, v^ith good opinions on both sides) ; 1892,
1742
1367-1393] PEEVENTED BY DEATH, ILLNESS, ETC.
§ 1391
unfinished suffices if its purposes have been substantially accomplished.
Where, however, the failure to obtain cross-examination is in any sense at-
tributable to the cross-examiner's own consent or fault, the lack of cross-
examination is of course no objection,® — according to the general principle
{ante, § 1371) that an opportunity, though waived, suffices.
§ 1391. Failure of Cross-examination through the Witness' Refusal to
Answer or the Fault of the Party offering him. (2) Where the witness, after
his examination in chief on the stand, has refused to submit to cross-exami-
nation, the opportunity of thus probing and testing his statements has sub-
stantially failed, and his direct testimony should be struck out. ^ On the
R. i;. Mitchell, 17 Cox Cr. 503 (dying woman
examined, and after the cross-examination " had
continued for about ten minutes," the magistrate
stopped it on account of her condition ; she
died a few minutes later ; held inadmissible,
unless the cross-examination was being continued
merely as a pretext) ; Can. : 1899, Randall v.
Atkinson, 30 Ont, 242 (deposition of defendant,
who had died pending adjournment and before
cross-examination, without fault on either side
admitted ; exhaustive opinion by Rose, J. ; but
the analogies of chancery practice and of the
statutory affidavit practice are emphasized) ;
U. S. : 1892, Scott v. McCann, 76 Md. 47, 24
Atl. 636 (the deponent-party died during ad-
journment and before cross-examination ; ad-
mitted, partly because of chancery precedents,
partly becanse the surviving opponent had testi-
fied, and partly because the cross-examination
was not " likely to modify his testimony in
chief"; a sensible ruling); 1855, Fuller v.
Rice, i Gray 343 (a witness fell ill at the 19th
cross-interrogatory ; testimony received ; Shaw,
C. J. ; " No general rule can be. laid down in
respect to unfinished testimony. If substantially
complete, ... it ought not to be rejected ") ;
1858, Lewis v. Ins. Co., 10 id. 511 (failure of
memory through illness ; testimony admitted) ;
1879, Heath v. Waters, 40 Mich. 471 (Campbell,
C. J. : "There are cases in which a failure to
respond on cross-examination will justify the
exclusion of at least so much of the direct testi-
mony as it might have qualified ") ; 1894,
People V. Kindra, 102 id. 147, 151, 60 N. W.
458 (witness dismissed by the judge after cross-
examination at length ; admitted, though the
cross-examiner for unspecified reasons had asked
for further cross-examination) ; 1844, Forrest v.
Kissara, 7 Hill 470, overruling Kissani v. Forrest,
25 Wend. 652 (the witness died after direct
examination, pending adjournment by consent ;
though it was otherwise inadmissible, the judges
differed as to the sufficiency of the present
ground); 1871, People v. Cole, 43 N. Y. 513
(the witness fainted at the end of the direct
examination and became too ill to permit of
cross-examination ; Grover, J. : " The common-
law rule . . . should be adhered to, although
in some cases there may be an apparent hard-
ship. No injustice is done to the party seeking
to avail himself of the evidence to require that
before its admission its truth shall be subjected
to such tests as the experience of ages has shown
1743
were necessary to render reliance thereon at all
safe ; and where this has been prevented with-
out any fault of the adverse party, to exclude
the evidence " ; Forrest v. Kissam declared to be
no authority, because the decision was rested
on different grounds by different judges) ; 1875,
Sturm V. Ins. Co., 63 id. 87 (Folger, J. : "It
may be taken as the rule that, where a party is
deprived of the benefit of the cross-examination
of a witness by the act of the opposite party or
by the refusal to testify or other misconduct of
the witness, or by any means other than the
act of God, the act of tlie party himself, or some
cause to which he assented, the testimony given
on the examination-in-chief may not be read ") ;
1876, Hewlett o. Wood, 67 id. 396 (the wit-
ness was ill and after repeated adjournments
no cross-examination could be had ; sevible, that
the fault of the witness or his party, or "any
matter of substance," would exclude a deposition ;
People V. Cole and Sturm v. Ins. Co., not men-
tioned) ; 1868, Pringle v. Pringle, 59 Pa. 290,
semble (inadmissible, if cross-examination is pre-
vented by act of God).
» 1848, R. u. Hyde, 3 Cox Cr. 90 (the wit-
ness, a child, was very ill, and after the sub-
stance of the story had been obtained for the
prosecution in taking the deposition, further
questioning was abandoned ; the counsel for the
defendant declined to cross-examine, "as the
child is evidently not in a fit state to answer,"
but did not ask for a postponement ; the wit-
ness signed the deposition, and died shortly
afterwards ; Plattj B., conceded that " an at-
torney cannot shut out a deposition by abstain-
ing from cross-examination " ; but the argument
tliat the condition of the child had precluded a
satisfactory examination left him in doubt on
the whole case) ; 1888, Pamell Commission's
Proceedings, 7th day. Times' Rep. pt. 2, p. 66 ;
1896, People v. Pope, 108 Mich. 361, 66 N. W.
213, semhle (here the witness fainted ; but the
opponent failed to move to strike out the direct
testimony; held, admissible) ; 1879, Hay's Ap-
peal, 91 Pa. 265, 268 (the plaintiflF witness
became disqualified, by the death of the oppo-
nent, after the direct examination and during
adjournment, the opposing counsel having de-
clined cross-examination before adjournment,
on account of his client's absence ; direct ex-
amination admitted, on the ground of waiver).
^ 1885, Rieger's Succession, 37 La. An. 104
(note 2, infra) ; 1842, Smith v. Griffith, 3 HUl
§ 1391
EIGHT OF CROSS-EXAMINATION.
[Chap. XLIV
circumstances of the case, the refusal or evasion of answers to one or more
questions only need not lead to this result. ^ When such a refusal, how-
ever, occurs in answer to the written interrogatories of a deposition (taken
on the Chancery model), the situation may require more strictness, for the
deponent is not in a position to be coerced by the Court's summary process,
and the opportunity of further probing the witness and of investigating the
motive of the refusal and the materiality of the loss of evidence is not so
abundant :
1838, Shaw, C. J., in Samge v. Blanchard, 20 Pick. 167, 172: "So far as the objection
goes upon the assumption that a deposition must be rejected because some of the questions
of the adverse party are not answered, as a general rule it is untenable. . . . [But] oases
may be supposed where, if a witness is manifestly favorable to the party taking the depo-
sition and declines answering pertinent and material questions to facts apparently within
his knowledge, it would be a good ground for excluding the deposition altogether. It
would show that the witne-is had violated his duty and his oath in not telling the whole
truth, and the deposition would in effect be taken ex parte."
1846, Nisbet, J., in McCloskey v. Leadbetler, 1 Ga. 551, 555: "This rule does not
mean that a party shall be deprived of the benefits of his witness' te-stimony by failure of
the other party to exercise the privilege of cross-examination, or by the dereliction of the
commissioners, or by the contumacy of the witness. But it does mean that a party seek-
ing the privilege of cross-examination shall not be forced to trial without it. It certainly
does mean that inteiTogatories ought not to be read where cross-questions are filed and
N. Y. 333 ; 1879, State v. MeNiiich, 12 S. C.
95 ; 1896, Millikan v. Booth, 4 Okl. 713, 46
Pac. 489 ; so also the cases cited ante, § 1390.
2 Ala. : 1845, Gibson v. Goldthwaite, 7 Ala.
281, 294 (failure to answer a question not ma-
terial ; deposition admitted) ; 1846, Spence d.
Mitchell, 9 id. 744, 749 (failure to answer two
questions directly, held not fatal, on the facts) ;
1867, Harris v. Miller, 30 id. 221, 224 (deposi-
tion suppressed, one answer being " evasive
and incomplete ") ; 1861, Black v. Black, 38 id.
Ill, 112 (answer held not evasive, merely for
referring to former direct answers) ; 1902, Elec-
tric Lighting Co. v. Rust, 131 id. 484, 31 Sa.
486 (deposition suppressed for evasive answers
on material points) ; D. C. ; 1896, Clark v.
Harmer, 9 D. C. App. 1, 5, 7 (the witness was
partly cross-examined, and then upon adjourn-
ment was requested by counsel to return on the
next Court day, but no notice was given of this
to the Court ; the witness not re-appearing at
all, the Court refused to strike out his testi-
mony) ; Ga. : 1849, Williams v. Turner, 7 Ga. 348,
350 (deposition suppressed, for failure to answer
one question ; " it will not do to permit a wit-
ness to judge what questions he shall answer
and what not ") ; 1850, Thomas «. Kinsey, 8 id.
421, 425 (answer held sufficient on the facts) ;
1858, Heard v. McKee, 26 id. 332, 342 (similar) ;
1895, Senior v. State, 97 id. 185, 22 S. E. 404
(the complainant in a rape case refused to point
out which of two persons was the assaulter,
and her testimony was excluded) ; Ky. : 1899,
Flannery v. Com., — Ky. — , 51 S. W. 672
(child's refusal to answer one question, not suf-
ficient to justify exclusion) ; La. ; 1885, Eieger's
Succession, 37 La. An. 104 (witness excused
after direct examination, on the ground of ill-
ness, but repeatedly failing, when apparently
able, to re-appear for cross-examination ; ex-
cluded) ; 1888, Townsend's Succession, 40 id.
67, 73, 3 So. 488 (witness ordered to appear
for further cross-examination, but failing to do
so ; admissible in trial Court's discretion) ; Tfis. :
1882, Trowbridge v. Sickler, 54 Wis. 306, 309,
11 N. W. 681 (oral interrogatories ; evasive
answers held not to justify suppression of the
deposition, on the facts ; the cross-examiner
" can repeat the questions or put others until
the witness is forced to answer the precise point
required, or fairly refuse ; of course, refusal or
evasion might be so gross as to indicate corrup-
tion and authorize a suppression -of the whole
deposition ").
But a refusal to answer on a. privileged subject
cannot justify suppressing the direct examina-
tion ; for the latter is equally liable with cross-
examination to be balked by the privilege, and
it is a mere accident on which side the privileged
topic occurs : 1800, Barber v. Gingell, 3 Esp.
60, 62 (a witness' direct examination is not to
be forbidden, because his cross-examination will
probably include questions which he may be
privileged not to answer). Contra : 1896,
MoElhannon v. State, 99 Ga. 672, 26 S. E. 501
(on the facts of the case, the witness claiming
on cross-examination his privilege on material
points, the testimony was struck out).
Distinguish the controversy whether the ques-
tion can be put (or read, in a depo,sition) even
though the answer claims privilege {post, §2268).
1744
§§ 1367-1393] PREVENTED BY WITNESS' EEFUSAL, ETC. § 1392
unanswered (provided they are such as by law ought to be answered), until the processes
of the Court are exhausted to compel the witness to answer."
Courts treat this situation with varying degrees of strictness. It should be
left to the determination of the trial judge, regard being had chiefly to the
motive of the witness and the materiality of the answer.^
§ 1392. jNon-ReBponsive Answers; General or "Sweeping" Interroga-
tories. (3) When a deposition is taken on written interrogatories filed before-
hand, and the witness in an answer to a direct interrogatory departs from the
subject of the question, the cross-examiner may be virtually deprived of cross-
examination, because by not anticipating this answer he will not have framed
his cross-interrogatories to probe the witness on that subject. This objection
is obviously apphcable to written interrogatories only ; ^ but to that extent it
has a just foundation :
. 1876, Hallett, C. J., in Marr v. Wetzel, 3 Colo. 2, 6 : " In taking evidence upon interroga-
tories attached to the dedimus or commission, the rule which requires that the witness
shall answer the question put, without more, should be somewhat strictly applied. In
such case the party against whom the deposition is to be used has no opportunity to cross-
examine, except that which is afforded by filing cross-interrogatories to be attached to
the commission. In drawing them he must often be governed entirely by the direct in-
terrogatories filed by his adversary ; and if these last give no light as to the subject upon
which the witness is to be examined, he will be unable to cross-examine. Of this the
deposition in the record affords an illustration. In the direct interrogatories there is
nothing calling for the witness' knowledge as to the service of the process on the defend-
ant in the State of Missouri, and yet such evidence was elicited. As to this the defendant
had no opportunity to cross-examine."
Nevertheless, whether there has been a substantial failure of cross-exami-
nation will depend much on the materiality of the answer, the facts of the
case as known to the cross-examiner, and the tenor of the cross-interroga-
tories; so that no fixed rule can be laid down. Apart from the present
' 1846, McCloskey v. Leadbetter, 1 Ga. 551, to answer an irrelevant question, held no ground
555 (deposition to impeach another witness, ex- for suppression) : 1811, Richardson v. Golden,
eluded because a single material question was 3 Wash. C. C. 109 (there was " no answer given
left unanswered ; quoted supra) ; 1880, Schaefer to or notice taken of the general interrogatory " ;
V. R. Co., 66 id. 39, 43 (substantial answering excluded) ; 1816, Nelson v. U. S., Pet. C. C.
of ci'oss-interrogatories, sufficient) ; 1859, Nichol- 235 (letters rogatory ; deposition not suppressed,
son V. Desobry, 14 La. An. 81, 83 (in the trial where the interrogatories were "substantially,
Court's discretion, the failure to answer a ma- though not formally " all answered) ; 1837,
terial interrogatory is ground for exclusion); Gass w. Stinsou, 3 Sumn. 98 (where the Chanceiy
1838, Savage v. Blanchard, 20 Pick. 167 (quoted authorities are elaborately examined by Story, J.) ;
supra) ; 1863, Robinson v. B. & W. R. Co., 7 1898, Bird v. Halsy, 87 Fed. 671, 674 (refusal
All. 393, 395 (deposition suppressed, for a. single to answer a question suffices to exclude; but
evasive answer) ; 1864, Stratford v. Ames, 8 All. here admitted for the opponent's failure to eom-
577 (failure to answer one question does not pel answer or otherwise to make proper objec-
exclude all, "unless his answer is so imper- tion) ; 1894, Hadra v. Bank, 9 Utah 412, 414,
feet or evasive as to induce the Court to believe 35 Pao. 508 (refusal to answer a question affect-
that he wilfully kept back material facts within ing the admissibility of the entire testimony ;
his knowledge ") ; 1867, McMahon v. Davidson, deposition excluded) ; 1882, Trowbridge v.
12 Minn. 357, 367 (answers must appear "fully Sickler, 54 Wis. 306 (cited supra, note 2).
and fairly given, without the suppression of ^ 1876, Marr v. Wetzel, 3 Colo. 2, 6 (see
any fact material to the case") ; 1821, Withers quotation supra); 1872, Greenman v. O'Connor
V. Gillespy, 7 S. & R. 10, 16 (incomplete 25 Mich. 30 (for a non-responsive answer on a
answers; rejected on the facts); 1867, Cross- material point, the testimony was held improperly
grove V. Himmelrich, 54 Pa. 203, 208 (refusal admitted ;" the right of cross-examination would
1745
§ 1392 EIGHT OF CKOSS-EXAMINATIOK [Chap. XLIV
ground, there is no inherent objection to a non-responsive answer ; in par-
ticular, the direct examiner cannot object to it, nor can the cross-examiner
object to it when it is evoked by his own interrogatory.^
(4) A direct interrogatory may be so general or " sweeping " as to enable
the witness, while responsively answering, to range over a variety of topics
whose tenor the cross-examiner cannot by possibility have anticipated. In
this way, for the same reason just noted, he may be substantially deprived
of his right. Such a general interrogatory, to be sure, is often useful and has
been traditionally employed to close a deposition taken by written interroga-
tories.^ Nevertheless, its capability of abuse is well understood ; and the
trial judge should have discretion to strike out the answer to it if a substan-
tial injustice would result :
1897, Fish, J., in McRride v. Macon T. P. Co., 102 Ga. 422, 30 S. E. 999 : " Strictly
speaking, this was not an interrogatory at all, but a mere request or demand for general
information in addition to that sought to be elicited by the preceding speciflo questions
propounded to the witness. We cannot approve of this method of examination, as ap-
plied to a witness whose testimony is taken by interrogatories, notwithstanding it may
be in accord with a practice commonly pursued by counsel in this State. Every inter-
rogatory addressed to a witness should be sufficiently explicit to indicate to the opposite
party the nature of the testimony expected. Obviously, a full and intelligent cross-
examination of the witness is not possible, unless the questions propounded to him on
his direct examination indicate with reasonable certainty the particular points as to
which his testimony is desired. As strict matter of right, therefore, a party suing out
a Set of interrogatories cannot claim that the response of the witness to such a sweep-
ing interrogation (if it may be called such) as that above quoted has been legitimately
drawn forth, and is in consequence admissible in evidence. On the other hand, if the
reply of the witness does not include matter not suggested by the preceding interroga-
tories put to him, the opposite party will not have been prejudiced by an abridgment
of his right to a full opportunity to cross-examine the witness, and accordingly cannot
justly complain in the event the Court declines to rule out the testimony thus elicited.
Under such circumstances, the trial judge may very properly exercise his discretion in
the premises, to the end that complete justice may be done as between the respective
parties to the litigation."*
be thereby defeated entirely, because no cross- should be allowed of matter that is not germane
interrogatories can be expected to enter upon to the subject of some special inquiry, and in
subjects not opened by the direct ones ") ; 1874, a measure the complement of testimony pre-
Hamilton v. People, 29 Mich. 173, 185 (the vionsly given "); 1898, McBride u. Macon T. P.
rule is confined to "settled written iuterroga- Co., 102 Ga. 422, 30 S. E. 999 ("State all the
tories"; "no such difficulty can arise where facts that will inure to the benefit of the plain-
the witness is examined openly and orally"). tiff or the defendant in this case," held not a
* Cases cited ante, § 785. proper interrogatory in a deposition ; quoted
' Federal Equity Rules, No. 71 (the last mpra) ; 1820, Porcival v. Hickey, 18 John.
written interrogatory shall be, in substance : 257, 264, 289 (Spencer, C. J. : "I perceive no
' ' Do you know, or can you set forth, any other abuse likely to follow from allowing the witnesses
matter or thing which may be a benefit or ad- to state every material fact, under that interroga-
vantage to the parties at issue in this case, or tory, not before drawn forth by the special
either of them, or that may be material to the interrogatories") ; 1854, Commercial Bank <;.
subject of this your examination or the matters Union Bank, 11 N. Y. 203, 210 (deposition not
in question in this cause ? If yea, set forth the suppressed, for a general interrogatory with
same fully and at large in your answer"). answers "pertinent to the matters in issue" ;
* The rulings have naturally varied much : the opponent should have applied beforehand to
1848, Yarborough v. Hood, 13 Ala. 176, 180 remedy any surprise "either by a. further ex-
(answer to a general interrogatory, held im- amination of the same witnesses or otherwise") ;
properly excluded) ; 1877, Blunt v. Strong, 60 1827, Rhoades i>. Selin, 4 Wash. 0. C. 722
id. 572, 577 ("To such interrogatory no answer (answer to a general interrogatory, admitted).
1746
§§ 1367-1393]
NON-RESPONSIVE ANSWERS.
§ 1393
So far as the mode of direct interrogation may in any other way deprive the
opponent of the adequate exercise of his right of cross-examination, through
rendering it impossible to anticipate the subject, the trial judge may properly
exclude the direct examination, to the extent of its impropriety.^
§ 1393. Sundry Insufficiencies of Cross-Examination. (1) (a) Where the
cross-examination is hampered by the witness' organic defects of speech, hear-
ing, or the like, the admissibility of the testimony should be left entirely to
the trial judge.^
(J) The party's own presence in the court-room during cross-examination
can hardly be deemed essential ; for his appearance by counsel gains him the
benefit of the right. Nevertheless, some Courts have thought it improper
(partly from the present point of view) to compel the party to retire from the
room during the trial.^
(c) Where the witness testifies in a foreign language, the accused is entitled
to understand it, so as to be able to cross-examine the witness. But if some-
how such an understanding is attained, either by his own or his counsel's
knowledge of the language or by the help of an interpreting third person, the
precise mode of attaining it is immaterial.^
{d) Whether there has been a substantially adequate cross-examination
where a deposition written down in the accused's absence has been afterwards
read over to him by the magistrate in the witness' presence with liberty then
» 1902, Wilkinson c. Wilkinson, 133 Ala.
381, 32 So. 124 (divorce ; on interrogatories
propounded by the chancellor ex mero motu to
the defendant, the plaintiff was held entitled to
notice for purposes of cross-examination) ; 1848,
Staftg K. Pomeroy, 3 La. An. 16 ("any further
enquiries propounded by the jilaintifTs counsel
before the commissioner were ex parte, and to
the disadvantage of the defendants, who had no
opportunity of counteracting them by cross-ex-
amination ") ; 1897, Anderson v. Bank, 6 N. D.
497, 72 N". W. 916, semble (amendment of a
declai-ation after deposition taken ; the defend-
ant not allowed to suppress the deposition
because of no cross-examination on the amended
pleading) ; 1884, First National Bank v. Wire-
baeh's Ex'r, 106 Pa. 44 (deposition admitted,
though new matter came up on the trial, as
to wliich the deponent had not been cross-
examined).
For tlie question whether more than one
counsel on u side may cross-examine, see ante,
§ 783.
For the question whether a witness who has
heen merely subpmnaed or merely asked one
question may be cross-examined, or must be
called as his own witness by the cross-examiner,
see post, §1892.
1 1882, Quinn o. Halbert, 55 Vt. 228 (re-
ceiving testimony where the witness was dumb
and could merely shake his head in assent or
dissent, and the opportunity of cross-examina-
tion was thus very limited).
2 Cases cited post, § 1399 (confrontation),
§ 1841 (sequestration of witnesses), and the
1747
following: 1876, Crowe t. Peters, 63 Mo. 429,
433 (on a suggestion that the defendant was by
gestures and looks intimidating a witness, he
was ordered from the room ; held, erroneous,
because it prevented his aid in the cross-ex-
amination ; but a change ol' position, etc. , might
have been required ; this is unsound, because
it was the party's own fault).
For intimidation by the cross-examiner, see
ante, §§ 781, 786.
' 1888, E. V. Ah Har, 7 Haw. 319 (the con-
stitutional right "is not complied with unless
the accused is in some way made to understand
their evidence," in order to avail himself of the
right of cross-examination ; but ' ' if the accused
has counsel who understands the evidence,
whether directly from the witnesses or through
an interpreter, the constitutional requirement is
complied with, though the accused himself may
not understand it " ; yet the Court may, on
request in such a case, order interpretation to
tlie accused of the testimony as given by each
witness ; a request not made till the close of
the prosecution's case is not seasonable) ; 1899,
Republic v. Yamane, 12 id. 189 (R, v. Ah
Har followed, and held equally applicable to
capital cases) ; 1903, Com. v. Lenousky, 206
Pa. 277, 55 Atl. 977 (testimony of an absent
witness, given originally at a preliminary hear-
ing, in the presence of the accused, a foreigner
who understood the witness' language, held in-
admissible, because he had no counsel to tell
him that he had the right to cross-examine ;
unsound). Compare § 811, ante, § 1810, post
(interpreters).
§ 1393 EIGHT OF CROSS-EXAMINATION. [Chap. XLIV
to cross-examine, is a question that has been several times discussed in Eng-
land. It would seem that, under the circumstances of a given case, such an
opportunity might be adequate.*
* 1817, K. V. Smith, R. & R. 339 (admis- held to be afforded by a reading over of the
sible) ; 1817, R. v. Forbes, Holt 599, Chambre, deposition where there is one prisoner only;
J. (inadmissible) ; 1845, R. v. Hake, 1 Cox Cr. that object is not the less secured because
22ti (the witness' deposition was taken and there are many prisoners ") ; 1852, R. v. Day,
authenticated on the 28th ; on the 29th, the 6 id. 55, Piatt, B. (the mere reading oyer to
defendant and two co-defendants being present the accused a deposition already taken is not
for the first time, and the witness also being enough). Whether the loss of a documeTii vhose
present, the deposition was read over to all the genuineness is disputed should exclude the testi-
defendants ; it was not re-signed by the raagis- mony of an expert who has studied it, by
trates ; Erie, J. : " The reading of it in the reason of the consequent impossibility of cross-
prisoner's presence is equivalent to a taking of it examining him upon its details, is a question
in his presence. . . . The object is to afford involving the principles of handwriting testi-
to the party charged an opportunity for cross- mony (a)Ue, §§ 697, 1185, post, § 2015).
examination. Such an opportunity has been
1748
§§ 1395-1418]
BOOK I, PAET II, TITLE II.
1395
Sub-title I (continued) : THE HEAESAY RULE SATISFIED.
Topic II: BY CONFRONTATION.
CHAPTER XLV.
1. General Principle of Confrontation.
§ 1395. Pui-pose and Theory of Confrontation.
§ 1396. Witness' Presence before Tribunal
may be Dispensed with, if not Obtainable.
§ 1397. Effect of Constitutional Sanction of
Confrontation.
§ 1398. Same : State of the Law in the Vari-
ous Jurisdictions.
§ 1 399. Confrontation, as requiring the Tribu-
nal's or the Defendant's Sight of the "Witness.
2. Circumstances of Necessity making
the Witness' Personal Presence
Unavailable.
§ 1401. Preliminary Distinctions ; (a) De-
position and Testimony ; (6) Civil and Criminal
Cases ; (c) Taking and Using a Deposition.
§ 1402. Genei-al Principle of Necessity or Un-
availability.
§ 1403. Specific Cases of Unavailability : (1)
Death.
§ 1404. Same : (2) Absence from Jurisdic-
tion.
§ 1405. Same : (3) Disappearance ; Inability
to Find ; (4) Opponent's Procurement.
§ 1406. Same : (5) Illness, Infiimity, Age,
preventing Attendance.
§ 1407. Same : (6) Imprisonment ; (7) Offi-
cial Duty or Privilege ; (8) Distance of Travel.
§ 1408. Same : (9) Insanity, or other Mental
Incompetency.
§1409. Same: (10) Interest.
§1410. Same: (11) Infamy.
§ 1411. Same : Statutes affecting Depositions
de bene esse.
§ 1412. Same : Statutes afTecting Depositions
m perpetuam memoriam.
§ 1413. Same : Statutes affecting Former Tes-
timony.
§ 1414. Proof of Unavailability of Witness.
§ 1415. If Witness is Available for Testify-
ing, Deposition is not Usable.
§1416. Same; Rule not Applicable (1) to
Deposition of Party-Opponent, or (2) to Deposi-
tion containing Self-Contradiction ; but appli-
cable (3) to Deposition of Opijonent's Witness,
and (4) to Former Testimony in Malicious
Prosecution.
§1417. Same: Exceptions to the Rule for
(1) Chancery and analogous Proceedings ; (2)
Commissions hy Dedimus Potestatem ; (3) Depo-
sition in Perpetuam Memmiam; (4) Will-Pro-
bates ; (5) Bastardy Complaints.
§ 14] 8. Anomalous Jurisdictions in which No
Necessity suffices to admit.
1. General Principle of Confrontation.
§ 1395. Purpose and Theory of Confrontation. In the period when the
Hearsay rule is being established, and ex parte depositions are still used
against an accused person {ante, § 1364), we find him frequently protesting
that the witnesses should be "brought face to face," or that he should
be " confronted " with the witnesses against him. The final establishment
of the Hearsay rule, in the early 1700s, meant that this protest was sanc-
tioned as a just one, — in other words, that Confrontation was required.
What was, in principle, the meaning and purpose of this Confrontation ? So
far as there is a rule of Confrontation, what is the process that satisfies this
rule?
It is generally agreed that the process of confrontation has two purposes,
a main and essential one, and a secondary and subordinate one. (1) The
main and essential purpose of confrontation is to secure the opportunity of
cross-examination. The opponent demands confrontation, not for the idle
purpose of gazing upon the witness, or of being gazed upon by him, but for
the purpose of cross-examination, which cannot be had except by the direct
and personal putting of questions and obtaining of immediate answers. That
1749
§ 1395 RIGHT OF CONFRONTATIOIT. [Chap. XLV
this is the true and essential significance of confrontation is demonstrated
by the language of counsel and judges from the beginning of the Hearsay-
rule to the present day :
1680, L. C. J. Hale, Pleas of the Crown, I, 306 (commenting on St. 5 & 6 Edw. VI,
c. 12, § 12 (1552) ; "which said accusers [of treason] at the time of the arraignment of
the party accused, if they be then living, shall be brought in person before the party so
accused, and avow and maintain that that they have to say to prove him guilty ") : " Yet
in case of treason, where two witnesses [j. e. accusers] are required, such an examination
[before a justice of the peace] is not allowable, for the statute i-equires that they be pro-
duced upon the arraignment in the presence of the prisoner, to the end that he may
cross-examine them."
1693, Fenwlck's Trial, 13 How. St. Tr. 591, 638, 712 (before the House of Commons) ;
Ssrgt. Lovel (for the prosecution): "We have i\lr. Goodman's examination under
the hand of Mr. Vernon ; we pray it may be read"; Sir B. Shower (for the accused):
" Mr. Speaker, ... I humbly oppose the reading of this examination, as , not agree-
able to the rules of practice and evidence, and that which is wholly new. . . . No
deposition of a person can be read, though beyond sea, unless in cases where the party it
is to be read aguinst was privy to the examination and might have cross-examined him
or examined to his credit, if he thought fit. . . . Our law requires pe]\sons to appear and
give their testimony viva voce; and we see that their testimony appears credible or not
by their very countenances and the manner of their delivery ; and their falsity may
sometimes be discovered by questions that the party may ask them, and by examining
them to particular circumstances which may lay open the falsity of a well-laid scheme,
which otherwise, as he himself had put it together, might have looked well at first ; and
this we are deprived of, if this e-xamination should be admitted to be read. . . . We
oppose it at present for that we were not present nor privy nor could have cross-examined
him " ; Sir T. Poiois, arguing : " How contrary this is to a fundamental rule in our law,
that no evidence shall be given against a man, when he is on trial for his life, but in the
presence of the prisoner, because he may cross-examine him who gives such evidence ;
and that is due to every man in justice."
1720, Duke of Dorset v. Girdler, Finch's Free. Ch. 531 : " The other side ought not to
be deprived of the opportunity of confronting the witnesses and examining them publicly,
which has always been found the most effectual method for discovering of the truth." ^
1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. Ill, c. XIX : " Under the
head of Confrontation may be found whatever advances (scanty indeed they will be seen
to be) have been made in Roman procedure towards the introduction of that universal
and equal system of interrogation above delineated and proposed, — consequently what-
ever part has been covered by the Roman law of the ground covered by the operation
called Cross-examination in English law. The operation has two professed objects :
one is the establishing the identity of the defendant, viz. that the person thus produced
to the deponent is the person of whom he has been speaking ; the other is that an oppor-
tunity may be afforded to the defendant, in addition to whatever testimony may have
been delivered to his disadvantage, to obtain the extraction of such other part (if any) of
the facts within the knowledge of the deponent as may operate in his favour. ... [It is
in Continental law] an imperfect modification of cross-examination, ... a faint shadow
of it."
1856, Barlley, C. J., in Summons v. State, 5 Oh. St. 341 : " Evidence of the statements
of a deceased witness on a former trial . . . would seem to be now confined to cases
where opportunity for cross-examination had been afforded, and therefore to cases where
the accused had been confronted by the deceased witness when the testimony was given
on the former trial."
1 See also Blackstone, Commentaries, III, 373.
1750
§§ 1395-1418] GENERAL THEORY. § 1395
1865, Woodward, C. J., in ITowser v. Com., 51 Pa. 337: " Confronting witnesses does
not mean impeaching their character, bat means cross-examination in the presence of the
accused. When the common law of England was transported to these colonies, it gave a
person charged with a capital crime no compulsory process to obtain witnesses and entitled
him to no examination by himself or his counsel of witnesses brought against hint. . . .
To remedy this state of the law, our constitutions all declared — what statutes had then
provided in England — that the accused should have an impartial trial by jury, should
have process for witnesses and be entitled to counsel to examine them, and to cross-
examine those for the prosecution in the presence of (confronting) the accused."
1876, Boreman, J., in U. S. v. Reynolds, 1 Utah 322 : " On the former trial she was
under oath, and subject to cross-examination by the defendant, and then he was con-
fronted by the witness. The main objects of producing the witness upon the stand had
been attained."
1891, Earl, J., in People v. Fish, 125 N. Y. 150, 26 N. E. 319: " It is quite a valuable
right to a prisoner to be confronted upon his trial with the witnesses against him, so that
he may cross-examine them and the jury see them and thus judge of their credibility.
. . . The evidence of the witness was taken in his presence where he had the oppor-
tunity to cross-examine him, where he did in fact cross-examine him, and thus he had all
the protection that the Bill of Rights and the Constitution were intended to secure him."
Thus the main idea in the process of confrontation is that of the opportunity
of cross-examination ; the former is merely the dramatic feature, the prelimi-
nary measure, appurtenant to the latter.
(2) There is, however, a secondary advantage to be obtained by the personal
appearance of the witness ; the judge and the jury are enabled to obtain the
elusive and incommunicable evidence of a witness' deportment while testifying,
and a certain subjective moral effect is produced upon the witness.^ This
subordinate advantage has been expounded in the following passages :
1836, Putnam., J., in Com. v. Richards, 18 Pick. 437 : " [Even] if you get the whole, it
is very defective; for you cannot have a true representation of the countenance, manner,
and expression of the deceased witness, which either confirmed or denied the truth of the
testimony."
1857, Ryland, J., in State v. McO'Blenis, 24 Mo. 421 : " There are many things, aside
from the literal import of the words uttered by the witness while testifying, on which the
value of his evidence depends. These it is impossible to transfer to paper. Taken in the
aggregate, they constitute a vast moral power in eliciting the truth, all of which is lost
when the examination is had out of court and the mere words of the witness are repro-
duced in the form of a deposition."
1882, Campbell, J., in People v. Sligh, 48 Mich. 56 : " The production of witnesses in
open court is one of the best means of trying their credit; and every one knows how
difiicult it is to judge from written testimony of the demeanor and appearance which
strike those who examined them. Still more difficult must it be to have the testimony
reproduced."
2 In the earlier and more emotional periods, Shaftesbury went on, speaking to Captain .At-
this confrontation was supposed (more often than kins, 'Come, Captain Atkins, confess truly and
it now is) to be able to unstring the nerves of a ingenuously, have you belyed Mr. Atkins or no ? '
false witness ; the following is merely one exam- . . . After this sort my lord Shaftesbury pressed
pie : 1678, Atkins' Examination, 6 How. St. Tr. Captain Atkins very home ; and while he was
1473, 1481 (one Captain Atkins was the chief doing so, and we looking steadfastly upon each
witness against the accused, also named Atkins ; other. Captain Atkins' countenance changed very
the accused tells that at his examination, Lord white ; wbioh I taking notice of, and observing
Shaftesbury said, "'Pray look one another in to the lords, my lord marquis of Winchester
the face,' so we gazed very earnestly, and my lord cried, ' "Where, where ? I don't see it ' ").
1751
§ 1395 EIGHT OF CONFRONTATION. [Chap. XLV
1860, Chief Justice Appleton, Evidence, 220 : " The witness present, the promptness and
unpremeditatedness of his answers or the reverse, their distinctness and particularity or
the want of these essentials, their incorrectness in generals or particulars, their direct-
ness or evasiveness, are soon detected. . . . The appearance and manner, the voice, the
gestures, the readiness and J)romptness of the answers, the evasions, the reluctance, the
silence, the contumacious silence, the contradictions, the explanations, the intelligence
or the want of intelligence of the witness, the passions which move or control — fear, love,-
hate, envy, or revenge — , are all open to observation, noted and weighed by the jury." ^
This secondary advantage, however, does not arise from the confrontation of
the opponent and the witness ; it is not the consequence of those two being
brought face to face. It is the witness' presence before the tribunal that
secures this secondary advantage, — which might equally be obtained
whether the opponent was or was not allowed to cross-examine. In other
words, this secondary advantage is a result accidentally associated with the
process of confrontation, whose original and fundamental object is the
opponent's cross-examination.
§ 1396. Witness' Presence before Tribunal may be Dispensed ■with, if not
Obtainable. The question, then, whether there is a right to be confronted
with opposing witnesses is essentially a question whether there is a right of
cross-examination. If there has been a cross-examination, there has been a
confrontation. The satisfaction of the right of cross-examination (under the
rules examined ante, §§ 1371-1393) disposes of any objection based on the
so-called right of confrontation.
Nevertheless, the secondary advantage, incidentally obtained for the tribu-
nal by the witness' presence before it — the demeanor-evidence — is an ad-
vantage to be insisted upon wherever it can be had. No one has doubted
that it is highly desirable, if only it is available. But it is merely desirable.
Where it cannot be obtained, it need not be required. It is no essential part
of the notion of confrontation ; it stands on no better footing than other evi-
dence to which special value is attached ; and just as the original of a docu-
ment (ante, § 1192) or a preferred witness (ante, § 1308), may be dispensed
with in case of unavailability, so demeanor-evidence may be dispensed with
in a similar necessity. Accordingly, supposing that the indispensable re-
quirement of cross-examination has been satisfied, the only remaining inquiry
is whether the demeanor-evidence, to be obtained by the witness' production
before the tribunal, is available.
This inquiry — the conditions of unavailability of demeanor-evidence, by
reason of death, illness, and the like — remains now to be made. But first
the effect must be considered of the constitutional sanction, in the United
States, of the principle of confrontation ; for this has often erroneously affected
the judicial attitude towards demeanor-evidence.
§ 1397. Effect of Constitutional Sanction of Confrontation. In the United
States, most of the Constitutions have given a permanent sanction to the prin-
ciple of confrontation, by provisions requiring that in criminal cases the
3 So also Blackstone, III, 373.
1752
§§ 1395-U18]
CONSTITUTIONAL SANCTION.
§ 1397
accused shall be " confronted with the witnesses against him " or " brought
face to face " with them.* The question thus arises whether these consti-
1 Ala. : 1875, Art. I, § 7 ("In all criminal
prosecutions the accused has a right ... to be
confronted by the witnesses against him ") ;
Ark.: 1874, Art. II, § 10 ("In all criminal
prosecutions the accused shall enjoy the right
... to be confronted with the witnesses against
him"); Cal.: 1879, Art. I, § 13 ("The Legis-
lature shall have the power to provide for the
taking, in the presence, of the accused and hia
counsel, of depositions of witnesses in criminal
cases, other than cases of homicide, when there
is reason to believe that the witness, from inabil-
ity or other cause, will not attend the trial ") ;
P. C. § 686 ("In a criminal action the defend-
ant is entitled ... to be confronted with the
witnesses against him, in the presence of the
Court" ; except as quoted ante, § 1388) ; Colo. :
1876, Art. II, § 16 (" In criminal prosecutions
the accused shall have the right ... to meet
the witnesses against him face to face ") ; § 17
(" Such deposition [of a witness in criminal
cases] shall not be used, if, in the opinion of the
Court, the personal attendance of the witness
might be procured by the prosecution, or is pro-
cured by the accused"); Conn.: 1875, Art. I,
§ 9 (" In all criminal prosecutions, the accused
shall have the right ... to be confronted by
the witnesses against him ") ; Del.: 1831, Art. I,
§ 7 ( " In all criminal prosecutions, the accused
hath a right ... to meet the witnesses in their
examination face to face ") ; Art. VI, § 16 ( " In
civil causes, when pending, the Superior Court
shall have the power, before judgment, . . .
of directing the examination of witnes.ses that
are aged, very infirm, or going out of the State,
upon interrogatories de bene esse, to be read in
evidence in case of the death or departure of the
witnesses before the trial, or inability by reason
of age, sickness, bodily infirmity, or imprison-
ment, then to attend ; and also the power of
obtaining evidence from places not within the
State ") ; Fla. : 1887, Decl. of K, § 11 ("In all
criminal prosecutions the accused shall have the
right ... to meet the witnesses against him
face to face"); Ga. : 1877, Art. I, § 1, par. 5
(" Every person charged with an offence against
the laws of this State . . . shall be confronted
with the witnesses testifying against him ") ; so
also Cr. Code 1895, § 8 ; iZZ. .- 1870, Art. II, § 9,
("In all criminal prosecutions the accused shall
have the right ; . . to meet the witnesses face
to face"); Ind. : 1851, Art. I, §13 ("In all
criminal prosecutions the accused shall have the
right ... to meet the witnesses face to face ") ;
Kev. St. 1897, §1876 (like Const. § 13) ; la.:
1857, Art. I, § 10 (" In all criminal prosecutions,
and in cases involving the life or liberty of an
individual, the accused shall have a right . . .
to be confronted with the witnesses against
him ") ; Zan. : 1859, Bill of K., § 10 (" In all
prosecutions, the accused shall be allowed . . .
to meet the witness face to face") ; Ky.: 1891,
§ 11 ("In all criminal prosecutions the accused
has the right ... to meet the witnesses face to
face") ; La. : 1879, Art. VIII ("In all criminal
prosecutions the accused shall enjoy the right
. . . to be confronted with the witnesses against
him"); 1898, Art. IX (similar); Me.: 1819,
Art. I, § 6 (" In all criminal prosecutions, the
accused shall have a right ... to be confronted
by the witnesses against him ") ; Md. : 1867,
Decl. of R., Art. XXI ( " In all criminal prosecu-
tions every man hath a right ... to be con-
fronted with the witnesses against him, ... to
examine the witnesses for and against him on
oath ") ; Mass. : 1780, Decl. of R., Art. 12
("Eveiy subject shall have a right to produce
all proofs that may be favorable to him ; to
meet the witnesses against him face to face ") ;
so also Pub. St. 1882, c. 201, § 4 ; Mich. : 1850,
Art. VI, § 28 (" In every criminal prosecution,
the accused sliall have the right ... to be
confronted with the witnesses against him ") ;
Comp. L. 1897, §11796 (to "meet the wit-
nesses who are produced against him face to
face ") ; Minn. : 18S7, Art. I, § 6 (" In all crimi-
nal prosecutions the accused shall enjoy the
right ... to be confronted with the witnesses
against him ") ; Miss. : 1890, Art. Ill, § 26
(" In all criminal prosecutions the accused shall
have a right . . . to be confronted by the wit-
nesses against him ") ; Mo. : 1875, Art. II, § 22
("In criminal prosecutions the accused shall
have the right ... to meet the witnesses against
him face to face ") ; Mont. : 1889, Art. Ill, § 16
(" In all criminal prosecutions the accused shall
have the right . . . to meet the witnesses against
him face to face"); § 17 ("[In criminal pro-
ceedings, if a witness] cannot give security, his
deposition shall be taken in the manner pre-
scribed by law, and in the presence of the accused
and his counsel, or without their presence, if
they shall fail to attend the examination after
reasonable notice of the time and place thereof.
Any deposition authorized by this section may
be received as evidence on the trial, if the wit-
ness shall be dead or absent from the State ") ;
P. C. 1895, § 1355 (like Const. Art. Ill, § 16) ;
Nebr. . 1875, Art. I, § 11 (" In all criminal pros-
ecutions the accused shall have the right . . .
to meet the witnesses against him face to face ") ;
Nev. .• Gen. St. 1885, § 3910 (" In a criminal
action, the defendant is entitled ... to be con-
fronted with the witnesses against him in the
presence of the Court " ; but provision is made
for use of testimony taken on preliminary hear-
ing) ; N. H.: 1793, Part I, art. 15 ("Every
subject shall have a right ... to meet the wit-
nesses again.st him face to face ") ; N. J. : 1844,
Art. I, § 8 ("In all criminal prosecutions the
accused shall have the right ... to be con-
fronted with the witnesses against him");
N. M. : Comp. L. 1897, § 3765 ("In all crimi-
nal prosecutions, the accused . . . shall be
confronted with the witnesses against him ") ;
§ 1047 ("to meet the witnesses face to face") ;
N. C. : 1875, Art. I, § 11 (" In all criminal
prosecutions, every man has the right ... to
confront the accusers and witnesses with other
testimony"); Oh.: 1851, Art. I, §10 ("In any
1753
§ 1397 EIGHT OF CONFRONTATIOK [Chap. XLV
tutional provisions affect the common-law requirement of confrontation,
otherwise than by putting it beyond the possibility of abolition by an ordi-
nary legislative body. The only opening for argument lies in the circum-
stance that these brief provisions are unconditional and absolute in form, i.e.
they do not say that the accused shall be confronted " except when the wit-
ness is deceased, ill, out of the jurisdiction, or otherwise unavailable," but
imperatively prescribe that he " shall be confronted." Upon this feature the
argument has many times been founded that, although the accused has had
the fullest benefit of cross-examining a witness now deceased or otherwise
unavailable, nevertheless, the witness' presence before the tribunal being
constitutionally indispensable, his decease or the like is no excuse for
dispensing with his presence.
That this argument is unfounded cannot be doubted ; and the answer to it
may be put in several forms: (1) There never was at common law any recog-
nized right to an indispensable thing called confrontation as distinguished
from cross-examination. There was a right to cross-examination as indis-
pensable, and that right was involved in and secured by confrontation ; it
was the same right under different names. This much is clear enough from
the history of the Hearsay rule {ante, § 1364), and from the continuous under-
standing and exposition of the idea of confrontation {ante, § 1395). It fol-
lows that, it the accused has had the benefit of cross-examination, he has had
the very privilege secured to him by the Constitution.^
(2) Moreover, this right of cross-examination thus secured was not a right
trial, in any Court, the party accused shall he enjoy the right ... to be confronted with the
allowwl . . to meet the witnesses face to witnesses against him ") ; Utah : 1895, Art. I,
face"); OiZ. Stats. 1893, §4874 ("In a criminal §12 ("In criminal prosecutions the accused
action the defendant is entitled ... to be con- shall have the right ... to be confronted by
flouted with the witnesses against him iu the the witnesses against him ") ; Rev. St. 1898,
presence of the Court ") ; Or. : 1859, Art. I, § 11 § 4513 (like Gal. P. C. § 686) ; Vt. : Oh. I, Art.
(" In all criminal prosecutions, the accused shall 10 ("In all prosecutions for criminal offences,
liave the right ... to meet the witnesses face a person hath a right ... to be confronted
toface") ; Pa. ; 1874, Art. I, §9 ("luallcrinii- with the witnesses"); so also Stats. 1894,
nal prosecutions, the accused hath a right ... § 1861 ; V,i. .- 1869, Art. I, § 10 (" In all capital
to meet the witnesses face to face"); M. I.; or criminal prosecutions, a man hath a right . . .
1812, Art. I, §10 ("In all criminal prosecu- to be confronted with the accusers and wit-
tions, the accused shall enjoy the right ... to nessea ") ; 1902, Art. I, § 8 (same, omitting
be confronted with the witnesses against him ") ; "capital or"); Wash,: Art. I, § 22 ("In
S. C- 1882, Art. I, § 13 ("Every person shall criminal prosecutions, the accused shall have
have a right ... to meet the witnesses against the right ... to meet the witnesses against
him face to face") ; 1893, Art. I, § 18 ("In all him face to face ") ; JF. Va. : Art. Ill, § 14
criminal prosecutions the acciLsed shall enjoy the ("In all such trials [of crimes and misde-
right ... to be confronted with the witnesses nieanors], the accused shall ... be confronted
against him"); S. D. . 1889, Art. VI, §90 with the witnesses against him ") ; fF/s. ,• Art. 1,
(" In all criminal prosecutions, the accused shall §7 ("In all criminal prosecutions the accused
have the right ... to meet the witnesses shall enjoy the right ... to meet the witnesses
against him face to face") ; Stats. 1899, § 8285 face to face") ; PTyo. : 1889, Art. I, § 10 ("In
(a defendant is entitled " to be confronted with all criminal prosecutions the accused shall have
the witnesses against him in the presence of the the right ... to be confronted with the wit-
conrt"); Tenn. : 1870, Art. 1, § 9 ("In all nesses against him ").
criminal prosecutions, the accused hath the ' This first answer plainly disposes of all ob-
right . . . to meet the witnesses face to face") ; jections to the use of cross-examined depositions
so also Code 1896, § 7355; Tex.: 1876, Art. I, and former testimony. But the use of dying
§ 10 (" In all criminal prosecutions, the accused declarations and other exceptional statements
. . . shall be confronted with the witnesses can only be met by the further answers set forth
against him ") ; U. S. : 1787, Amendment VI in (2) and (3).
(" In all criminal prosecutions, the accused shall
1754
§§ 1395-1418] CONSTITUTIONAL SANCTION. § 1397
devoid of exceptions. The right to subject opposing testimony to cross-ex-
amination is the right to have the Hearsay rule enforced ; for the Hearsay
rule is the rule requiring cross-examination (ante, § 1362). Now the Hear-
say rule is not a rule without exceptions ; there never was a time when it
was without exceptions. There were a number of well-established ones at
the time of the earliest constitutions, and others might be expected to be
developed in the future. The rule had always involved the idea of excep-
tions, and the constitution-makers indorsed the general principle merely as
such. They did not care to enumerate exceptions ; they merely named and
described the principle sufficiently to indicate what was intended, — just as
the brief constitutional sanction for trial by jury, though absolute in form,
did not attempt to enumerate the excepted cases to which that form of trial
was appropriate nor to describe the precise procedure involved in it, — just
as the brief prohibition against " abridging the freedom of speech " was not
intended to ignore the exception for defamatory statements, — just as the
brief guarantee of the right to have counsel was not intended to prohibit a
prosecution where no counsel could be found by the accused, — just as the
prohibition against involuntary servitude does not abolish the father's com-
mon-law right to the services of his child. The rule sanctioned by tlie
Constitution is the Hearsay rule as to cross-examination, with all the excep-
tions that may legitimately be found, developed, or created therein.
(3) The net result, then, under the constitutional rule, is that, so far as
testimony is required under the Hearsay rule to be taken infra-judicially, it
shall be taken in a certain way, namely, subject to cross-examination, — not
secretly or ex parte away from the accused. The Constitution does not pre-
scribe what kinds of testimonial statements (dying declarations, or the like)
shall be given infra-judicially — this depends on the law of evidence for the
time being — , but only what mode of procedure shall be followed — i.e. a
cross-examining procedure — in the case 'of such testimony as is required
by the ordinary law of evidence to be given infra-judicially.
These answers are represented in the following passages :
1852, Lumpkin, J., in Campbell v. State, 11 Ga. 374 : " The admission of dying decla-
rations in evidence was never supposed in England to violate the well-established princi-
ples of the common law that the witnesses against the accused should be examined in his
presence. The two rules have co-existed there certainly since the trial of Ely in 1720,
and are considered of equal authority. . . . The right of a party accused of a crime to
meet the witnesses against him face to face is no new principle. It is coeval with the
common law. Its recognition in the Constitution was intended for the twofold purposes
of giving it prominence and permanence."
1852, Yerger, J., in Lambeth v. State, 23 Miss. 322, 357: *'The admission of these
[dying] declarations was established as a rule of evidence by the Courts of the common
law, almost coeval with the foundations of that law itself. The general principle of the
common law, with few exceptions, has always been that 'hearsay evidence ' could not be
admitted. But simultaneous with the adoption of this rule, an exception was made to it
in the case of the ' dying declarations ' of the deceased on the trial of a party charged
with his murder. . . . When the biU of rights was adopted by the framers of our Consti-
tution, they were aware of this rule of evidence of the common law. They found it
VOL. II.— 48 1755
§ 1397 RIGHT OF CONFRONTATION. [Chap. XLV
adopted into and forming a part of the jurisprudence of the country. The object they
had in view, in adopting the clause referred to, was not to introduce a new or abolish an
old rule of evidence. Their intention was not to declare or specify the nature, character,
or degree of evidence which the Courts of the country should admit. Their aim was
simply to re-assert a cherished principle of the common law which had sometimes been
violated in the mother country in political prosecutions; leaving to the Courts to decide,
according to the rules of law, upon the nature and kind of evidence which a witness, when
confronted with the accused, might be permitted to give."
1856, Bartley, C. J., in Summons v. State, 5 Oh. St. 341: "This right . . . has ap-
plication to the personal presence of the witness on the trial and not to the subject matter
or competency of the testimony to be given. ... If the right secured by the bill of rights
applied to the subject matter of the evidence, instead of the witness it would exclude in
criminal oases all narration of statements or declarations by other persons heretofore
received as competent evidence.''
1857, Leonard, J., in State v. McO'Blenis, 24 Mo. 416, 435: "The purpose of the
people was not, we think to introduce any new principle into the law of criminal pro-
cedure, but to secure those that already existed as part of the law of the land from future
change by elevating them into constitutional law. ... It was never supposed in England,
at any time, that this privilege was violated by the admission of a dying declaration, or
of the deposition of a deceased witness under proper circumstances; nor, indeed, by the
reception of any other hearsay evidence established and recognized by law as an exception
to the rule. . . . These exceptions to the general rule were never considered violations of
the rule itself ; they grew out of the necessity of the case, and are founded in practical
wisdom; Ryland, J.: "The provision . . . does not make a new rule of evidence; it
does not declare what may be or may not be proper and lawful evidence on the trial of a
criminal prosecution ; it relates to the position of the witness in lawfully detailing such
facts as may be lawfully submitted to the jury in a criminal prosecution. . . . He must
be in court. So must the accused. He shall not detail his knowledge of the facts in a
dark or secret chamber, in the absence of the accused, to be afterwards read against the
accused before the jury." '
1892, Cassoday, J., in Jackson v. State; 81 Wis. 127, 131, 51 N. W. 89 : " The right of
the accused to meet the witnesses face to face was not granted, but secured, by the con-
stitutional clauses mentioned. It is the right, therefore, as it existed at common law that
was thus secured. That right was subject to certain exceptions."
It is important to appreciate this, the true interpretation of the constitutional
provisions, because the erroneous answer has occasionally been advanced, the
" witness " who is to be brought face to face is merely the person now
reporting another's former testimony or dying declaration, and that thus the
constitutional provision is satisfied by the production of that second person.*
The fallacy here is that the statements of the former witness or dying
declarant are equally testimony, since they are offered as assertions offered
to prove the truth of the fact asserted (ante, § 1361), and the question must
therefore still be faced whether these testimonial statements are covered by
the constitutional provision.^ That they are not so covered is a conclusion
' 1900, state «. Moore, 156 Mo. 204, 56 S. W. declarations are regarded as facts or circnm-
883 ("The discussion in that case [State v. stances connected with the murder. ... It is
McO'Bleuis] . . . constitute a. chapter in our tbe individual who swears to the statements of
judicial history which will forever command the the deceased that is the witness, not the de-
adiniration of the bench and bar of our State "). ceased ").
* 1837, Smith, J., in Woodside v. State, 2 » 1858, Napton, J., in State v. Houser, 26
How. Miss. 665 ("[In dying declarations] the Mo. 437 ("To say that the witne.ss who nuist
murdered individual is not a witness. . . . His meet the accused ' face to face ' is he who re-
1756
§§ 1395-1418] CONSTITUTIONAL SANCTION. § 1398
which can only be reached by the other and safer answers already noticed.
It is well to have the sound theory fully understood and accepted, because,
if the other should temporarily prevail, its overthrow and the exposure of its
fallacies might be thought to involve the overthrow of the exceptions to the
Hearsay rule. The revision and extension of the exceptions is gradually
progressing, and it is well to appreciate fully that there is in this progress
nothing inconsistent with constitutional sanctions. So bold are nowadays
the attempts to wrest the Constitution in aid of crime, and so complaisant
are the Courts in listening to fantastic and unfounded objections to evidence,
that the permissibility of sucb changes should not be left in the slightest
doubt.
§ 1398. Same : State of the Law in the Various Jurisdictions. (1) In
dealing with depositions and former testimony, our Courts have almost
unanimously received them in criminal prosecutions, as not being obnoxious
to the constitutional provision. The leading opinions were rendered chiefly
between 1840 and 1860. Up to 1886, apparently the only contrary precedent
not overruled was an early Virginia case,^ afterwards often cited, which pro-
fessed to decide the question merely on English precedent, and not on con-
stitutional grounds, and proceeded^ on the authority of an earlier English
treatise,^ which in turn went upon the authority of Fenwick's Trial, — a
parliamentary decision precisely to the opposite effect,^ and misunderstood
by the writer of the treatise. This early Virginia ruling, of so little weight
in itself, served however to keep a doubt alive ; and in the last generation a
few ill-considered rulings in other jurisdictions have followed it.* Apart
from these rulings, it is well and properly settled that such evidence — as-
suming always that there has been a due cross-examination — is admissible
for the State in a criminal prosecution, without infringing the Constitution.®
peats what the dying man has said, is a mere State v. Collins, 32 la. 36, 40 (see the contrary
evasion. . . . [He is not] the witness whose later case in the next note) ; Kan. : 1897, State
testimony is to aflfect-the life or liberty or prop- v. Tomblin, 57 Kan. 841, 48 Pac. 144, semble;
erty of the accu.sed. It is the dying man who is Ky.: 1886, Kaelin v. Com., 84 Ky. 354,368,
speaking through him, whose evidence is tn have 1 S. W. 594 (said obiter ; no precedent cited ;
weight and eflScacy sufScient, it may be, to take see contra the case cited in the next note) ;
away the prisoner's life. The living witness is Mont. : 1893, State v. Lee, 13 Mont. 248, 33
but a conduit-pipe, — a mere organ, through Pac. 690 (but see the later case in the next note) ;
whom this evidence is conveyed to the Court OM. : 1897, Watkins v. U. S., 5 Okl. 729, 50
and jury "). Pac. 88 ; Tex. : 1896, Cline v. Stale, 36 Tex.
1 1827, Finn v. Com., 5 Band. 708. Cr. App. 320, 36 S. W. 1099 (apparently at-
^ Peake, Evidence, 60 (1801). tempting, in a singularly unenlightened opinion,
^ See the trial fully qonsidered ante, § 1364. to overrule the long line of Texas precedents
* Ala. : 1889, Anderson v. State, 89 Ala. oited in the next note) ; Fa. ; 1827, Finn v.
12, 7 So. 429 (here the statute expressly required Com., 5 Rand. 708; 1853, Com. v. Brogy, 10
consent of the defendant ; but in this case the Graft. 722, 732 (Finn's Case approved; but
deposition had been taken by the defendant, nothing said of the constitutional question),
and was not put in by him) ; Ark. : 1895, * Besides the following cases, many others
Woodruff!;. State, 61 Ark. 157, 32 S. W. 102, cited in the sections post, after § 1402, use such
Semite (depositions ; but see the earlier cases in evidence in criminal cases without expressly
the next note) ; III. : 1887, Tucker v. People, passing npon the constitutional question : Ala. :
122 111. 583, 593, 13 N. E. 809 (said obiter that 1875, Horton v. State, 18 Ala. 488, 495 ; Ark. :
the use of depositions in a criminal case " would 1860, Pope v. State, 22 Ark. 372 ; 1881, Green
be a direct denial of the right to meet the wit- v. State, 38 id. 304, 321 ; 1894, Vaughan v.
nesses face to face " ; no authority cited ; see the State, 58 id. 353, 370, 24 S. W. 885 • 1895
contrary later case in the next note) ; la. : 1871, McNamara v. State, 60 id.'400, 30 S W 762'
1757
§ 1398
RIGHT OF CONFRONTATION.
[Chap. XLV
(2) The same result has been reached with regard to the constitutionality
of evidence admissible by way of exception to the Hearsay rule. The use of
dying declarations has been often thus passed upon, and without any dissent-
ing rulings." A like consequence must of course also foUow for the other
exceptions to the Hearsay rule, and has been expressly sanctioned for official
Cal. ; 1872, People v. Murphy, 45 Gal. 137 ;
1884, People v. Oiler, 66 id. 101, 4 Pac. 1066 ;
1893, People v. Douglass, 100 id. 1, 5, 34 Pac.
490, semble; 1895, People v. Chin Hane, 108
id. 597, 41 id. 697 ; 1897, People u. Sierp, 116
id. 249, 251, 48 Pac. 88 ; (because the Consti-
tution has no confrontation-clause) ; 1897, Peo-
ple V. Cady, 117 id. 10, 48 Pac. 908 ; for a
peculiar statutory distinctiou in this State, see
the end of this note ; Colo. : 1895, Eyan v.
People, 21 Colo. H9, 40 Pao. 775 (under Const,
art. 2, sects. 16, 17) ; Del. : 1855, State :;.
Oliver, 2 Houst. 589 ; Ga. : 1856, Williams v.
State, 19 Ga. 403 ; Ida. : 1890, Terr. v. Evans,
2 Ida. 627, 632 ; jill. : 1870, Barnett v. People,
54 111. 325, 330 (former testimony) ; 1898, Gil-
lespie V. People, 176 id. 238, 52 N. E. 250 ; la. :
1884, State v. Fitzgerald, 63 la. 272, 19 N. W.
202 ; Ky. : 1855, Walston v. Com., 16 B. Monr.
35 ; La. : 1876, State v. Harvey, 28 La. An.
105 ; 1903, State v. Kline, 109 La. 622, 33 So.
618 ; 1903, State v. Banks, 111 id. 22, 35 So.
370 ; 1903, State v. Wheat, ib. 860, 35 8o.
955 (the rule is not different under the Consti-
tution of 1898) ; Mass. : 1836, Com. v. Kich-
ards, 18 Pick. 437 ; Mich. : 1895, People v. Case,
105 Mich. 92, 62 N. W. 1017 ; Minn. : 1895,
Stite V. George, 60 Minn. 503, 63 JST. W. 100 ;
Mi'is. : 1837, Woodsides v. State, 2 How. 665 ;
1836, Owens v. State, 63 Miss. 450, 452 (former
testimony ; probably overruling Dominges v.
State, 7 Sm. & M. 475); 1899, Lipscomb u.
State, 76 id. 223, 25 So. 158 ; 1902, D.ikes
V. State, 80 id. 353, 31 So. 744, semble ; Mo. .-
1857, State v. McO'Blenis, 24 Mo. 416 (see quo-
tation supra) ; 1858, State v. Houser, 26 id.
433 ; Mont. : 1895, State v. Bvers, 16 Mont.
665, 41 Pac. 708 ; Nev. ; 1877, 'State v. John-
son, 12 Nev. 123; N. Y. : 1876, Howard v.
Moot, 64 N. Y. 262, 263 (St. 1821, c. 19, relat-
ing to the perpetuation of testimony, without
cross-examination, held constitutional) ; 1902,
People V. Elliott, 172 id. 146, 64 N. E. 837 ;
Oh. : 1856, Summons v. State, 5 Oh. St. 341 ;
1857, Bobbins v. State, 8 id. 163 ; Pa. : 1873,
Brown ». Com., 73 Pa. 321, 325 ; 1892, Com. ■;.
Cleary, 148 id. 26, 38, 23 Atl. 1110 ; Tenn. .-
1838, Anthony v. State, Meigs 265 ; 1850, Ken-
drick V. State, 10 Humph. 484 (overruling, in
eliect. State v. Atkins, 1 Overt. 229) ; 1885,
Baxter v. State, 15 Lea 660 ; 1871, Greenwood
V. State, 35 Tex. 537, 591 ; Tex. : 1876, John-
son V. State, 1 Tex. App. 333, 338, 344 ("the
constitutional objection ... is now no longer
an open question ") ; 1876, Black v. State, ib.
368, 383 ; 1879, Sullivan v. State, 6 id. 319,
339 ; 1880, Dunlap i>. State, 9 id. 179, 188 ;
1887, Steagald v. State, 22 id. 464, 490 ; 1888,
Gillireath v. State, 26 id. 315, 318 ; U. S.: 1851,
U. S. u. Macomb, 5 McLean 286 ; 1895, Mattox
V. U. S., 156 U. S. 237, 240, 15 Sup. 337 ; 1897,
Brown, J., Robertson v. Baldwin, 165 id. 275,
17 Sup. 326; Utah: IS76, V. S. „. Reynolds
1 Utah 822 ; fVash. : 1897, State v. Gushing,
17 Wash. 544, 50 Pac. 412 ; IF. Fa. : 1894,
CaiTico V. R. Co., 39 AV. Va. 86, 89, 19 S. E.
571 (left undecided) ; Wis. : 1892, Jackson u.
State, 81 Wis. 127, 130, 51 N. W. 89.
In California there is a limitation of some
sort, supposed to rest upon P. C. § 686 (quoteil
ante, § 1388) and apparently excluding testi-
mony at a former trial, while admitting testimony
given before a committing magistrate, because
the statute in terras authorizes the latter only ■
1881 People v. Chung Ah Chue, 57 Cal. 567 ;
1881, People v. Qurise, 59 id. 343 ; 1893, People
V. Gardner, 98 id. 127, 131, 32 Pac. 880 ; 1893,
People V. Gordon, 99 id. 227, 233, 33 Pac. 901 ;
1898, Peoples. Brennan, 121 id. 495, 53 Pac.
1098 (charges of rape, extortion, etc. ; testimony
at the preliminary examination excluded ; reason
obscure) ; 1901, People v. Bird, 132 id. 261, 64
Pac. 259 (testimony at a former trial is inadmis-
sible for the prosecution, by reason of the omis-
sion to enumerate such a case in P. C. § 686 ;
but the accused may use such testimony).
In U. S. V. Zucker, 163 U. S. 710,' 16 Sup.
641, the Court merely decided that a suit by
the Government for duties payable (the plain-
tiff not having chosen to prosecute criminally
for the evasion of the tax) was not a " criminal
prosecution " under U. S. Const. Am. 6, and
hence the question whether a deposition was
properly taken in France was not affected by
that clause.
6 1858, People o. Glenn, 10 Cal. 36 ; 1852,
Campbell ;;. State, 11 Ga. 374 (see quotation
supra) ; 1893, Govt. v. Herring, 9 Haw. 181,
189 ; 1858, State v. Nash, 7 la. 377 ; 1855,
Walston V. Com., 16 B. Monr. 34 ; 1858,
State V. Brunetto, 13 Li. An. 45 ; 1853, Com.
I!. Carey, 12 Gush. 246 ; 1852, Lambeth v. State,
23 Miss. 322, 357 (see quotation ante, § 1397) ;
1898, People v. Corey, 157 N. Y. 1024, 51 N. E.
1024 ; 1850, State v. Tilghman, 11 Ired. 554 ;
1890, State v. Kindle, 47 Oh. St. 361, 24 N. E.
485 ; 1902, State v. Wing, 66 id. 407, 64 N. E.
514 (for the exceptions in general) ; 1886, State
V. Saunders, 14 Or. 300, 12 Pac. 441 ; 1889,
State V. Murphy, 16 R. I. 533 ; 1900, State v.
Jeswell, 22 id. 136, 46 Atl. 405 ; 1857, Burrell
V. State, 18 Tex. 731 ; 1876, Black v. State, 1
Tex. App. 368, 384 ; 1895, Mattox v. U. S., 156
U. S. 237, 243, 15 Sup. 337 ; 1897, Brown, J.,
in Robertson v. Baldwin, 165 id. 275, 17 Sui>.
326 ; 1896, State v. Baldwin, 15 Wash. 15, 45
Pac 650 ; 1870, Miller v. State, 25 Wis. 386 ;
1877, State ?;. Dickinson, 41 id. 299. 308 ; 1892,
Jackson v. State, 81 id. ISO, 137, 51 N. W. 89.
1758
§§ 1395-1418]
CONSTITUTIONAL SANCTION.
§ 1399
statements^ and for reputation.^ The anomalous recent contrary rulings no-
ticed under the former head and in the preceding paragraph above are inter-
esting instances of that finical wisdom which looks back over a century of
unquestioned professional practice and imagines sophomorical quiddities
which the fathers of the profession, living at the Constitution's birth, never
dreamed of.
(3) The constitutional provision, so far as it may apply in a given case
for lack of cross-examination, may of course be waived by the accused.'
§ 1399. Confrontation, as requiring the Tribunal's or the Defendant's Sight of
the 'Witness. So far, then, as the essential purpose of confrontation is concerned,
it is satisfied if the opponent has had the benefit of full cross-examination.
So far, furthermore, as a secondary and dispensable element is concerned, the
thing required is the presence of the witness before the tribunal so that liis
demeanor while testifying may furnish such evidence of his credibility as can
be gathered therefrom. In" asking whether these two requirements are ful-
filled, the inquiry, for the first element, is determined by the rules already
examined {ante, §§ 1373-1393). For the second element, there is little room
for, dispute in the application of the principle; it is satisfied if the witness,
throughout the material part of his testimony, is before the tribunal where
his demeanor can be adequately observed. It is possible to quibble over the
precise fulfilment of this requisite in a given instance ; ^ but it will ordinarily
' 1887, Tucker v. People, 122 111. 583, 593,
13 N. E. 809 (certificate of marriage ; tlie con-
stitutional provision "has uo reference to record
evidence which may during the progress of a
criminal trial become necessary to establish
some material fact"); 1886, State v. Matlock,
70 la. 229, 30 N. W. 49,') (county marriage
records, not excluded by the Constitution) ;
1888, State v. Smith, 74 id. 580, 583, 38 N. W.
492 (approving State v. Matlock) ; 1894, State
V. Behrraan, 114 N. C. 797, 804, 19 S. E. 220
(the use of oiiicial records does not violate the
constitutional prohibition ; here, a foreign mar-
riage certificate was otherwise objectionable as
nnauthenticated) ; 1869, Reeves v. State, 7
Coldw. 96, 101, 108 (official paper on file ; Mc-
C'lain, J., diss. ; but the majority take the un-
tenable stand that "the paper is the witness,"
and that production of a certified copy, where by
law the original need not be produced, is in eff'ect
a confrontation). Contra: 1868, State w. Reidel,
26 la. 430, 436 (notary's certificate of protest,
not receivable in a criminal case to show no
funds) ; 1887, People v. Foster, 64 Mich. 717,
720, 31 N. W. 596 (official signal -service record
of weather ; entrant required to be produced in
a criminal case, upon the present principle) ;
1903, People v. Goodrode, — id. — , 94 N. W.
14 (clerk's certificate of no record of marriage,
excluded, under the Constitution ; distinguish-
ing People V. Jones, supra).
The following seem to belong here : Ky.
Stats. 1899, § 4643 (official stenographic report
not usable in criminal case except by defend-
ant's consent) ; 1899, Cutler v. Terr., 8 Okl.
101, 56 Pac. 861 (statutory permission for use
1759
of official reporter's stenographic notes does not
allow them to be used in a criminal case except
by calling the reporter).
8 1888, State v. Waldron, 16 R. 1. 192, 14 Atl.
847.
' 1870, State v. Poison, 29 la. 133, 135 ;
1884, States. Fooks, 65 id. 452, 21 N. W. 561;
1898, State v. Olds, 106 id. 110, 76 N. W. 644 ;
1881, State v. McNeil, 33 La. An. 1332, 1335 ;
1896, State v. Mitchell, 119 N. C. 784, 25 S. E.
783 (ex parte examination of bastardy-pi'osecu-
trix ; failure to object is a waiver) ; State v.
Rogers, 119 id. 793, 26 S. E. 142 (same). Com-
pare § 1371, ante.
The testimony of an absent ivitness, received
by consent of the prosecution to avoid a continu-
ance, is therefore not within the prohibition :
1900, Ruiz V. Terr., 10 N. M. 120, 61 Pac. 126
(but here it was put upon the ground that the
witness' agreed testimony turned out to be favor-
able to the defendant).
^ The following are instances of amusing legal
pedantry : 1896, Bennett v. State, 62 Ark. 516,
36 S. "W. 947 (holding erroneous the action of
the trial Court in proceeding with the examina-
tion of witnesses during the accused's absence in
the watercloset) ; 1899, State v. Mannion, 19
Utah 505, 57 Pac. 543 (a witness for the State
claiming to be afraid of the defendant, the Court
placed him back in the room, out of sight and
hearing of the witness ; held improper, on the
absurd ground that the dictionaries define " con-
front" as meaning "to bring face to face," and
that the constitutional provision was thus vio-
lated ; Bartch, C. J., dissenting as to the rea-
soning). Compare the cases cited ante, § 1393.
§ 1400 RIGHT OF CONFEONTATION. [Chap. XLV
be easy to determine whether in substance the desired object of the law has
been obtained.^
2. Circumstances of Necessity making the Witness' Personal Presence
Unavailable.
§ 1401. Preliminary Distinctions ; (a) Deposition and Testimony ; (6) CHvil
and Criminal Cases ; (c) Taking and ITsing a Deposition. Before examining
the circumstances of that necessity which dispenses with the witness' per-
sonal presence for testifying {ante, § 1396), it is desirable to notice certain
distinctions which here play a more or less important part.
(a) There is on principle no distinction between a deposition and former
testimony as to the conditions upon which either may be used at the trial.
So far as the circumstances make it impossible to obtain the witness' per-
sonal presence for testifying, by reason of his death, illness, absence from the
jurisdiction, and the like, tbe impossibility exists in precisely the same de-
gree for a deposition and for former testimony, — supposing, of course, that
in each case there has been cross-examination. There is on principle not
the slightest ground for failing to recognize all the dispensing circumstances
as equally sufficient for both kinds of testimony. Nevertheless, there is in
most jurisdictions more or less inconsistency on this subject; and it can
never be safely assumed that a Court will treat both kinds in the same way.
There are usually independent lines of precedents for the two kinds of testi-
mony. This is due, of course, to the pecuhar inability of the common-law
Courts to authorize depositions {ante, § 1376), in consequence of which the
treatment of depositions has been handled apart by itself as a special legis-
lative problem. The statutes, in granting the power to order depositions,
have usually specified the conditions of necessity allowing their admission,
and this statutory specification has rarely been sufficiently thoughtful of all
the possible kinds of necessity ; the result is an unfortunate patchwork of
statutes and decisions. Presumably the statutory enumeration will not be
treated as intended to exclude other causes unenumerated ; this ought to be
the construction.
As between depositions de bene esse and in perpetuam memoriam, there are
also to be found differences uncalled for on principle. The statutes author-
izing depositions of the latter sort have seldom enumerated the conditions of
use, and the judicial precedents are rare. The precedents and statutes will
therefore here be distinguished according as they apply to former testimony
and to depositions de bene esse and in perpetuam memonam.
(6) There is on principle no distinction, as to the conditions of necessity
* 1680, Earl of Stafford's Trial, 7 How. St. (the prosecutrix, in a rape case, was deaf and
Tr. 1293, 1341 (Stafford : "I beg your loi-dships dumb, and being sliocked at a question put to
that he may look me in the face ' ; the witness her, ran out into an adjoining room ; the inter-
was turned to the Court ; " I desire the letter of preter followed her, obtained an answer, and
the law, which says my accuser shall come face returned with her, in about one minute, and
to face"; L. H. S. Finch: "My lord, you do then reported the answer to the Court; held,
see the witness ; that is enough for face to face ") ; that no substantial right was prejudiced),
1886, Skaggs », State, 108 Ind. 57, 8 N. E. 695
1760
§§ 1395-1418] DEPOSITIONS AND FORMER TESTIMONY. § 1402
for using depositions and former testimony, between civil and criminal' cases.
If absence from the jurisdiction (for example) is a necessity in the one class
of cases, it is equally a necessity in the other. The needs of public justice
are as strenuous as those of private litigation. It is even more necessary
that an offender against the community be duly punished than that a debtor
discharge his private obligation. Our traditional tenderness for accused per-
sons explains to some extent the prevalence of this distinction in some juris-
dictions. But there are also two legal principles that chiefly account for the
distinction where it is found : (1) The constitutional provision requiring the
confrontation of witnesses with the accused is regarded in a few jurisdictions
{ante, § 1398) as preventing any use, by the prosecution in criminal cases, of
depositions and former testimony ; (2) the statutory authorization for taking
depositions has in some jurisdictions culpably failed to give that power on
behalf of the prosecution in criminal cases ; accordingly, if such a deposition
is there offered, it is rejected for the simple reason that there never was au-
thority in any officer to take it ; the deposition is legally non-existent.^
(c) There is a distinction to be observed between the statutory conditions:
upon which an order to take a deposition may be granted and those upon
which it may be used when taken. The statutes empowering Courts to order
the taking of depositions usually specified also the cases in which such an
order could issue, — the witness' ilhiess, or impending departure, or the like.
Now there may be, by the time of the trial, no actual necessity for using a
deposition taken merely in anticipation of a possible necessity ; hence, the con-
ditions of necessity for using the deposition are in law independent of the
conditions of policy on which the order for taking may have issued. The
order for taking concerns a preliminary stage of the trial, the machinery of
preparing evidence ; they are therefore without the present purview. Until
the deposition is offered on the trial, the question of admissibility is not
raised. The statutes prescribing the mode of taking prescribe also usually
the conditions of admissibility ; but they sometimes make no provisions of
the latter sort, and then resort may have to be had to the provisions of the
former sort to ascertain the legislative intention.
§ 1402. General Principle of Necessity or Unavailability. The principle
upon which depositions and former testimony should be resorted to is the
simple principle of necessity, — i. e. the absence of any other means of utilizing
the witness' knowledge. If his testimony given anew in court cannot be had,
it will be lost entirely for the purposes of doing justice if it is not received in
the forni in which it survives and can be had. The only inquiry, then, need
be : Is his testimony in court unavailable ? We may of course distinguish
further between testimony unavailable by any means whatever and testi-
mony unavailable without serious inconvenience. The common-law rulings
certainly stopped at unavailability of the former sort ; conditions of the latter
sort rest wholly on statutory sanction. But the common-law principle
^ The cases depending upon tins reason are placed post, § 1418.
1761
§ 1402 EIGHT OF CONFEONTATION. [Chap. XLV
clearly went in theory as far as the former line, i. e. there are indications of
a principle broad enough to sanction any case in which the present testimony
is in i&ct unavailable hy any means whatever. Such a broad principle was
never fully and consistently enforced in practice ; but it clearly existed in
gremio legis :
Ante 1726, Gilbert, C. B., Evidence, 61 : " In this case the deposition is the best that
can possibly be had, and that answers what the law requires."
1812, Eldon, L. C, in Andrews v. Palmer, 1 Ves. & B. 22 : " The depositions, if pub-
lished, could not be read at law unless it was proved to the satisfaction of the Court that
the witness could not be examined at the trial."
1835, Johnson, J., in State v. Hill, 2 Hill S. C. 609 : " What a deceased witness, or
one who from other causes has become incapacitated to give evidence, has sworn upon a
former trial, is admitted on the principle that it is the best of which the case admits."
1898, Green, J., in Wells v. Ins. Co., 187 Pa. 166, 40 Atl. 802 : " The cause of the sub-
sequently accruing incompetency is not material. It may arise from absence, from
sickness, from interest, from death, or from a newly-created statutory incompetency ;
but the principle controlling them all is that if, at the time the deposition or testimony
was taken, the witness was competent, it may be given in evidence after the incompetency
had arisen. Such is the sense of all the modern decisions, and we think the conclusion
is reasonable and just."
1842, Professor Simon Greenleaf, Evidence, § 168 : " The same principle will lead us
farther to conclude that in all cases where the party has without his own fault or concur-
rence irrecoverably lost the power of producing the witness again, whether from physical
or from legal causes, he may offer the secondary evidence of what he testified in the
former trial. If the lips of the witness are sealed, it can make no difference in principle
whether it be by the finger of death or by the finger of the law."
It remains to examine the precedents dealing with specific instances of un-
availability. Some of these rulings have been rendered under the terms of
express statutes {post, §§ 1411-1413); but it is not always practicable to
distinguish whether a statute affected the ruling. The possible cases may be
grouped under three heads, according as the witness {a) is not available even
for the purpose of serving legal process to attend, or (6) is available for the
purpose of process, but not of actual attendance, or (c) is available for the
purpose of process and attendance, but not of actually testifying.
§ 1403. Specific Cases of TTnavailability ; (1) Death. This has always been
the typical and acknowledged case of unavailability, and is equally conceded
to suffice for depositions and for former testimony.^ The jurisdictions in
which, by anomaly, it is not deemed sufficient are those (^'post, § 1418) in
which, for constitutional or other reasons, no use at all is permitted, in
criminal cases, of either depositions or former testimony.
§ 1404. Same : (2) Absence from Jurisdiction. Where the witness is out
of the jurisdiction, it is impossible to compel his attendance, because the pro-
cess of the trial Court is of no force without the jurisdiction, and the party
desiring his testimony is therefore helpless.^ Three conditions, however,
1 For early illustrations, see the history of i 1705, Lord Holt, 0. J., in Altham v.
the Hearsay rule, ante, § 1364. For others, see Anglesea, Gilb. Eq. Kep. 18.
ante, § 1398. For the use of reputation to evi-
dence the witness' death, see poet, § 1626.
1762
§§ 1395-1418] WITNESS DECEASED OE ABSENT.
§ 1404
have been by some Courts suggested as essential in order that the present
testimony may be regarded as unavailable in the fullest sense :
(a) The absence, it is sometimes said, must be by way of residence, not merely
of temporary sojourn, because otherwise the trial could be postponed until his
return.^ This, however, seems too strict a rule ; by his absence he is at the
time actually unavailable, no matter when he is to return ; and, if the wit-
ness is not of such importance as to require a postponement until his return,
still more if the opponent does not desire or consent to a postponement, there
is no reason for distinguishing between temporary and permanent absence.
(6) It is sometimes said that an effort should have been made to persuade
the witness' voluntary attendance ; ^ and no doubt the trial Court's discretion
might occasionally make such a requirement ; but it is unnecessary to pre-
scribe this as a general rule.
(c) It has also been suggested * that an effort should have been made to
obtain the witness' deposition by commission; but this is futile, for a deposition
is no better than his former testimony.
This ground of admission, then (absence from the jurisdiction of trial), is
generally accepted for testimony at a former trial / ^ a few Courts, following
* See the Alabama cases, infra.
For the person's declarations as evidence of
intent npt to return, see post, § 1725.
* 1877, Rothrock, C. J., in Sliisser o. Bur-
lington, 47 la. 302.
* Shisser v. Burlington, sicpra; 1870, Bemey
V. Mitchell. 34 N. J. L. 341.
" Bng. : 1737, Fry v. Wood, 1 Atk. 445 ;
Can. : 1852, Roe v. Jones, 3 Low. Can. 58 ;
1859, Sutor v. McLean, 18 U. C. Q. B. 490, 492
(re^ident out of the jurisdiction, admitted) ;
1866, Abel v. Light, 6 All. N. Br. 423, 427 ;
Ala. : 1851, Long v. Davis, 18 Ala. 803 ("per-
manent absence") ; 1860, Mims b. Sturtevant
36 id. 64 ; 1888, Lowe v. State, 86 id. 47, 50,
5 So. 435 (absence for an indefinite time, suf-
ficient, even in criminal case); 1888, South v.
State, ib. 617, 620, 6 So. 52 (permanent absence,
sufficient) ; 1888, Perry u. State, 87 id. 30,
33, 6 So. 425 (permanent or indefinite absence,
sufficient) ; 1890, Pruitt o. State, 92 id. 41,
9 So. 406 (absence " for such an indefinite time
that his return is merely contingent or con-
jectural," sufficient) ; 1891, Lucas v. State, 96
id. 51, 11 So. 216 (preceding definition held
not here satisfied on the facts) ; 1893, Lowery v.
State, 98 id. 45, 60, 13 So. 498 ; 1894, Thomp-
son V. State, 106 id. 67. 75, 17 So. 512 (same) ;
1894, Burton v. State, 107 id. 68, 73, 18
So. 240 (indefinite absence, sufficient) ; 1895,
Thompson v. State, 106 id. 67, 17 So. 512;
("left the State permanently; or for such an
indefinite time that his return is contingent
and uncertain") ; 1897, McMunnw. State, 113
id. 86, 21 So. 418 ; 1897, Mitchell v. State, 114
id. 1, 22 So. 71 ; Burton v. State, 11-5 id. 1, 22
So. 585 ; 1898, Dennis v. State, 118 id. 72, 23
So. 1002 ; 1900, Lett v. State, 124 id. 64, 27 So.
256 (non-residence in jurisdiction suffices) ;
1900, Birmingham N. Bank i^. Bradley, — id.
— , 30 So. 546 (former testimony of one who
had "removed from the State and was at the
time without the jurisdiction," admitted) ; 1902,
Jacobi V. State, 133 id. 1, 32 So. 158 (removal
from the State " permanently orfor an indefinite
time," suffices) ; 1902, Jacobi v. Alabama, 187
U. S. 133, 23 Sup. 48 (by the law of Alabama,
the testimony is receivable if the witness is
"beyond the jurisdiction of the Court, whether
he has removed from the State permanently or
for an indefinite time") ; 1903, Southern Oar &
F. Co. V. Jennings, 137 Ala. 247, 34 So. 1002
(witness "staying indefinitely at M. in this
State ; " not sufficient) ; Ark. : 1874, Hurley v.
State, 29 Ark. 23 ; 1883, Dolan v. State, 40 id.
461 ; 1894, Vaughan v. State, 58 id. 353, 370,
24 S. W. 885; 1900, Wilkins v. Slate, 68 id.
441, 60S. W. 30; Col. . 1873, People ti. Devine,
46 Cal. 48 ; 1894, Benson v. Shotwell, 103 id.
163, 168, 37 Pac. 147 ; Ga. : 1869, Adair v.
Adair, 39 Ga. 75, 77 ; 1878, Eagle & P. M. Co.
V. Welch, 61 id. 445 ; 1893, Pittman v. State,
92 id. 480, 17 S. E. 856 ; 1893, Atlanta & C.
A. R. Co. V. Gravitt, 93 id. 369, 371, 20
S. E. 550 (whether a witness is "inaccessible"
under Code § 3782 is for the trial jndge's de-
termination) ; 1900, Owen v. Palmour, 111 id.
885, 36 S. E. 969 ; la. : 1877, Shisser u. Bur-
lington, 47 la. 302 (provided an efi'ort h.ns been
made to secure the witness' voluntary attend-
ance or his depo.sition) ; 1890, Bunk ;;. Gifl[brd,
79 id. 311, 44 N. W. 558 (residence in another
county, sufficient, by statute) ; Kan. : 1902,
Atchison T. & S. F. E. Co. v. Osborn, 64 Kan.
187, 67 Pac. 547 ; Ky. : 1895, Reynolds v.
Powers, 96 Ky. 481, 29 S. W. 299; 1896,
Louisville Water Co. v. Uiiton, — id. — , 36
S. W. 520 ; La. : 1882, State v. Douglass, 34
La. An. 523, 524; 1882, State v. Jordan, ib.
1219 ; 1898, State v. Madison, 50 id. 679, 23
1763
§ 1404
EIGHT OF CONFKONTATION.
[Chap. XLV
an early New York ruling, refuse to recognize it at all ; ® a few others refuse
to recognize it in criminal cases particularlyj For depositions this cause was
at common law established as sufficient,** subject in occasional rulings to
So. 622 (residence out of tlie State, sufficient) ;
1901, State V. Banks, 106 La. 480, 31 So. 53
(permanent absence is necessary) ; 1903, State v.
Kline, 109 id. 603, 33 So. 618 (absence from the
State, with no reasonable probability of a return,
held sufficient) ; 1903, State „. Banks, 111 id.
22, 35 So. 370 (permanently absent from the
State ; testimony at a preliminary hearing ad-
mitted ; the prior ruling, supra, was made in
construing a special statute, No. 123 of 1898,
applying to certain New Orleans criminal
courts) ; Md. .- 1829, Rogers «. Eaborg, 2 G. &
J. 60 ; Mich. : 1878, Howard u. Patrick, 38
Mich. 799 ; 1399, Wheeler v. Jennison, 120 id.
422, 79 N. "W. 643; Minn.: 1892, Minne-
apolis M. Co. V. R. Co., 51 iMinn. 304, 315,
53 N. W. 639 ; (not necessary to try first
for his deposition) ; 1893, King v. McCarthy,
54 id. 190, 195, 55 N. W. 960 ("not likely to
return within the jurisdiction," sufficient) ;
1898, Hill «. Winston, 73 id. 80, 75 N. W. 1030
(residenjein another State, sufficient); Mont.:
1903, Reynolds v. Fitzpatrick, — Mont. — ,72
Pac. 510 (absence not sufficiently shown, on the
facts) ; Nebr. .- 1893, Omaha v. Jensen, 35 Xebr.
63, 52 N. W. 833 ; 1894, Omaha S. R. Co. v.
Elkins, 39 id. 480, 53 N. W. 164 (mere absence
sufficient) ; 1896, Lowe o. Vaughn, 48 id. 651.
67 N. W. 464 ; 1897, Ord. u. Nash, 50 id. 335,
69 N". W. 981; 189^, Wittenberg ». Molyneaux,
59 i.l. 203' 80 N. W. 821, s^mble ; Or.: 1900,
Wheeler v. McFerron, 38 Or. 105, 62 Pac. 1015 ;
Px. : 1818, Magill v. Kiuffrain, 4 S. & R. 317 ;
1821, Forney v. Hallagher, 11 id. 203; 1898,
Giberson u. Mills Co., 187 Pa. 513, 41 Atl.
525 (siiffiiient; nor need efforts be made to
secure his attendance) ; Tec: 1879, Sullivan u.
State, 6 Tex. App. 319, 333 ; 18S7, Steag-ild v.
State, 22 id. 464, 483, 3 S. W. 771 ; 1837,
Coiner v. Slate, 23 id. 378, 334, 5 S. W. 189 ;
18 3S, Gilbreath v. State, 26 id. 315, 318, 9
S. VV. 613 ; U. S. : 1897, Chicago St. P. M. &
O. R. Co. V. Myers, 25 0. G. A. 486, 80 Fed.
331 (if his personal attendance cannot be
secured) ; Vt. : 1902, Mc Gfovern u. Smith, —
Vt. — , 53 Atl. 328 (nor is it necessary to try
to procure his attendance or to search for him).
• 1826, Wilbur v. Selden, 6 Cow. 164 ; 1834,
Crary v. Spragae, 12 Wend. 45 ; 1374, Berney
17. Mitchell, 34 N. J. L. 341 ; 1876, Odlins v.
Com., 12 Bush 273. In Cassady v. Trustees,
105 111. 567 (1883), the testimony was excluded
on the facts of the case.
' 1836, Owens v. State, 63 Miss. 450, 452 ;
1858, State v. Houser, 26 Mo. 439 ; 1843, People
V. Newman, 5 Hill N. Y. 296; 1827, Finn v.
Com., 5 Rand. 708; 1853, Com. v. Brogy, 10
Gratt. 722, 732 (not sufficient in a criminal case,
even for defendant) ; 1881, U. S. v. Angell, 11
Fed. 43. In .Alabama, the rulings in Dnpree v.
State, 33 Ala. 388, and Harris v. State, 73 id.
497, are superseded by the later ones in note
5, supra.
8 JEng. : 1688, Thatcher v. Waller, T. Jones
53 (deposition before coroner of one beyond sea,
admitted ; it was " all one as if he were dead " ;
for earlier English rulings, see ante, § 1364) ;
1705, Altham v. Anglesea, Gilb. Eq. Rep. 18 ;
11 Mod. 212 ; 1729, Patterson v. St. Clair, 1
Barnard. K. B. 268; 1744, Ward v. Sykes,
Ridgw. t. Hardw. 193 ; 1772, Birt v. White,
Dick. 473; 1806, Fonsick v. Agar, 6 E.sp. 92
(deposition of one already on board shiii, ad-
mitted) ; 1808, Falconer v. Hanson, 1 Camp.
172 ; 1841, Robinson v. Markis, 2 Moo. & Rob.
376 (mere inability to tiuil does not suffice to
establish absence) ; 1849, Varicas v. French, 2
C. & K. 1008 (absence in Australia, held suffi-
ciently proved) ; 1856, R. v. Austen, 7 Cox Cr.
55 (mere absence in the witness' own country,
without a showing of inability to secure his pres-
ence liy reijuest, not sufficient) ; 1873, Exprtrte
Hnguet, 12 id. 551 (a French witness refusing
to stay, and returning to France ; admissible,
per Martin, B., and, semhle. Pollock, B. ; semble,
contra, Kelly, C. B. ) ; Can. : 1900, R. v. For-
sythe, 4 N. W. Terr. 398 (the evidence of
absence rauit be such as reasonably to satisfy
the trial judge) ; Ala. : 1839, McCutchen v.
MoCutchen, 9 Port. 650, 654 (that the witness
had "started to move to the State of Arkansas
with his family," though he expected to stop on
the way in another county with relatives, suffi-
cient) ; 1851, Long v. Davis, 18 Ala. 801, 803
(permanent absence, sufficient ; no effort to ob-
tain him necessary) ; Ounn. : 1854, Larkin v.
Avery, 23 Conn. 304, 318 (absence on a journey
other than the one contemplated at the taking
of the deposition, sufficient ; semble, fact of
absence is determinable by trial Court) ; Ida. :
1890, Terr. v. Evans, 2 I'd.i. 627, 632, 23 Pac.
232 (overruled by State v. Potter, — id. — ,
57 Pac. 431, cited post, § 1418) ; Ind. T. :
1899, Missouri K. & T. R. Co. v. Elliott, 2
Ind. T. 407, 51 S. W. 1058 (deposition by
railroad employee, residing out of the juris-
diction, but frequently coming within it dur-
ing their employment, admitted) ; III. : 1897,
Gardner ?i. Meeker, 169 111. 40, 48 N. E. 307
("non-resident" includes one residing in another
county but within the S^ate, and his deposition
on oral interrogatories may be received) ; Mass. :
1350, Kinnev ". Berran, 6 Cush. 394 (mere
inability to find is not sufficient to prove ah-
sence) ; N'. 0. : 1897, Cunningham v. Cunning-
ham, 121 N. C. 413. 28 S. E. 525 (evidence of
absence held sufficient, the trial Court having
discretion)-; Pa. : 1319, Carpenter v. Groff, 5 S.
& R. 165: Vi.: \S'\9. .Tohnson v. Sargent, 42
Vt. 195 : TF. Vn. : 1897. Hoopps v. DeVan^hn,
43 W. Va. 447, 27 S. E. 251 (non-residence
may appear from the deposition itself as well
as from the statutory affidavit at the time nf
application). Contra: 1897, State i,-. Tomhlin,
57 Kan. 841, 48 Pac 144 (and in spite of the
fact that the defendant himself had caused the
1764
§§ 1395-1418] WITNESS ABSENT OE NOT FOUND.
§ 1405
the distinctions above noted ; and by statute it has been almost universally
provided for.^
§ 1405. Same : (3) Disappearance ; Inability to Find ; (4) Opponent's Pro-
curement. (3) If the witness has disappeared from observation, he is in
effect unavailable for the purpose of compelling his attendance. Such a
disappearance is shown by the party's inability to find him after diligent
search. The only objection to recognizing this ground of unavailability is
the possibility of collusion between party and witness ; but supposing the
Court to be satisfied that there has been no collusion and that the search
has been hona fide, this objection loses all its force. For former testimony ^
Clime); 1893, State w. Humason, 5 Wash. 493,
604, 32 Pac. Ill (not sufficient in criminal cases
foi' either party).
Tlie rule has been held to be the same for
the deposition of the party himself, though this
seems erroneous : 1896, Standard L. & A. Ins.
Co. p. Tinney, 73 Miss. 726, 19 So. 662 (party
out of State; admissible). Compare § 1416,
post.
° The statutes are collected in § 1411, post.
The statute's omission should not injure the
established common-law principle. But if the
statute has not even given the power to order
a deposition taken out of the State it would
seem to be inadmissible because legally non-
existent ; 1886, Kaelin v. Com., 84 Ky. 3,54,
367, 1 S. W. 594 (statutory limits held ex-
clusive ; therefore the accused cannot take the
dejiositiou of a person abroad).
1 ETig.: 1623, Anon., Godbolt 326: ("If a
party cannot find a witness, then he is as it
were dead unto him," and his former testimony
may be read, "so as the party make oath that
he did his endeavor to find his witness, but
that he could not see him nor hear of him ") ;
1685, Oates' Trial, 10 How. St. Tr. 1227, 1285
(Gates : " My lord, I will then produce what he
swore at another trial ; " L. C. J. Jeffreys :
"Why, where is he? Is he dead?"; Oates:
' ' My lord, it has cost a great deal of money to
search him out ; but I cannot anywhere meet
with him, and that makes my case so much worse
that I cannot, when I have done all that man
can do to get my witnesses together. I sent in
the depth of winter for him, when I thought my
trial would hare come on before ; but I could
never hear of him;" L. C. J.; "Look you,
though in strictness, unless the party be dead,
we do not use to admit of any such evidence,
yet if yon can prove anything he swore at any
other trial, we will indulge you so far ") ; 1726,
Gilbert, E-'idence, 60 ; Ala. : 1896, Thompson
V. State, 106 Ala. 67, 17 So. 612 ; ^897, Mitch-
ell V. State, 114 id. 1, 22 So. 71 ("after diligent
search is not found within the jurisdiction of the
Court," sufficient ; mere inability to find at the
usual residence or in the county, not sufficient) ;
1902, Jacobi v. State, 133 id. 1, 32 So. 158
(a "fruitless search for him in every county in
which there is any apparent likelihood of his
being found, "may suffice, as amounting to proof
of removal from the jurisdiction ; requirements
of snch a search considered); Ark.: 1878,
Shackelford v. State, 33 Ark. 539 ; 1886, Sneed
V. State, 47 id. 186, 1 S. W. 68 ; 1894, Vaughan
V. State, 58 id. .353, 370, 24 S. W. 885 (" upon
diligent inquiry cannot be found " ; the trial
Court's discretion to control) ; 1895, Mc-
Namara v. State, 60 id. 400, 30 S. W. 762 ;
1896, Harwood v. State, 63 id. 130, 37 S. W.
304; Cmm..- 1902, Mechanics' Bank u. Wood-
ward, 74 Conn. 698, 51 Atl. 1084 (foimer testi-
mony of a witness " who has since gone to parts
unknown," admitted, under Pub. Acts 1896,
p. 503, c. 116) ; 6a.: 1880, Gunn c. Wades,
65 Ga. 637, 541 (after which, Williams v. State,
19 id. 403, is probably of no consequence) ;
1890, Atlanta & S. R. Co. v. Randall, 85 id.
302, 314, 11 S. E. 706 ; la. : 1896, Spaulding
V. R. Co., 98 la. 205, 67 N. W. 227 (information
given to an officer serving a subpoena, as indicat-
ing the sufficiency of search on which to base a
return of not found) ; La. : 1876, State v. Har-
vey, 28 La. An. 105 ; 1884, State v. Cnudier, 36
id. 291 ; 1894, State v. White, 46 id. 1273,
1276, 15 So. 623 ; 1898, State u. Timberlake, 50
id. 308, 23 So. 276 ; Minn. : 1898, Hill v. Win-
ston, 73 Minn. 80, 75 N. W. 1030 (person's
declarations as to residence, and sheriff's return
of not found, received) ; Pa. : 1895, Seitz o.
Seitz, 169 Pa. 510, 32 Atl. 594, scmlle ; Tex.:
1879, Sullivan v. State, 6 Tex. App. 319, 342;
U. S. : 1899, Motes v. U. S., 178 U. S. 458, 20
Sup. 993 (testimony of one who had escaped
through the negligence of the jirosecuting officers,
excluded) ; Utah : 1902, State v. King, 24 Utah
482, 68 Pac. 418 (under Rev. St. 1898, § 4613).
Crnitra: 1837, R. v. Hagan, 8 C. & P. 169;
1834, Crary v. Sprague, 12 Wend. 45 (Nelson, .]. :
"Even diligent inquiry, without being able to
find the witness, is not sufficient, though it is
obvious there can be scarcely a shade of differ-
ence between the two cases, death and absence,
either in principle or hardship"); 1902, State
V. Wing, 66 Oh. 407, 64 N. E. 514 (prior testi-
mony of a witness not found after diligent search,
and believed to be without the State, held not
admissible in a criminal case, unless the absence
was due to the accused's connivance).
For the admissibility of statements made to
the sertrchers, as evidence of inability to find, see
post, § 1789 ; and compare the rulings for lost
documents, ante, § 1196.
1765
§ 1405 RIGHT OF CONFRONTATION. [Chap. XLV
this cause of unavailability lias long been recognized. It ought equally to
sufiB.ce for depositions?
(4) If the witness has been by the opponent procured to absent himself,
this ought of itself to justify the use of his deposition or former testi-
mony,^ — whether the offering party has or has not searched for him,
whether he is within or without the jurisdiction, whether his place of abode
is secret or open ; for any tampering with a witness should once for all estop
the tamperer from making any objection based on the results of his own
chicanery.
§ 1406. Same r (5) Illness, Infirmity, Age, preventing Attendance. Any
physical incapacity preventing attendance in court, except at the risk of seri-
ous pain or danger to the witness, should be a sufiBcient cause of unavaila-
bility; and this has been almost universally recognized by Courts.^ Certain
distinctions, however, have from time to time received special notice, (a)
The duration of the illness need only be in probability such that, with regard
to the importance of the testimony, the trial cannot be postponed.^ (6) As to
the degree of the illness, the traditional phrase, " so ill as not to be able to
travel," sufiBciently indicates the requirements of common sense; and the
" ability " is to be considered with reference to the risk of pain or danger to
the witness. That the illness should be such as to make it impracticable to
take the witness' deposition at his home has been said by one Court to be
the correct limitation ; ^ but this is certainly incorrect, for a deposition
obtained from a person during illness could not be any better than his former
cross-examined testimony or deposition, and would probably be much less
trustworthy.* There is no reason why the application of the general principle
in a given instance should ever come before a Court of Appeal ; to the trial
Court should be left the determination of the existence of the necessity in a
particular case.
There is further no distinction properly to be made between former tesii-
= 1895, Burton v. State, 107 Ala. 68, 18 So. ^ Coittra, for former testimony : 1827, Doe v.
240 ; 1903, People u. Witty, 1.38 Cal. 576, 72 Erans, 3 G. &P. 221, Vaughan, B. ; 1893, Com.
Pac. 177; 1828, Tompkins v. Wiley, 6 Eand. ■». MeKenna, 158 Mass. 207, 210, 33 N. E. 389
242 (duo diligence not shown on the facts); (for criminal cases). ,
1818, Pettibone b. Derringer, 4 Wash. C. C. ^ 1891, Mitchell, J., in Thornton v. Britton,
219. Contra: 1666, Lord Morly's Case, Kelyng 144 Pa. 130, 22 Atl. 1048 : " The determination
55 ("Agreed, that if a witness who was exam- of this question in each case as it arises rests
ined by the coroner be absent, and oath is made largely in the discretion of the Court. On a
that they have nsed all their endeavors to find trial for murder, for instance, tlie judge presid-
hini and cannot find him, that is not suffi- ing would feel it his duty to enforce the attend-
cient to authorize the reading of such examina- ance of a witness having knowledge of the crucial
tion " ; compare this case ante, § 1364, note 47) ; facts, even at some risk to the witness' health
1851, R. V. Scaife, 5 Cox Cr. 243, 17 Q. B. or life ; while in a civil action he might feel
243. free to hold that a much smaller risk to the
^ 1692, Harrison's Trial, 12 How. St. Tr. witness would be sufficient to excuse him from
851 ; 1851, R. v. Scaife, 5 Cox Cr. 243 (procure- personal attendance."
ment by a co-defendant, held not sufficient as to ' 1870, Berney v. Mitchell, 34 N. J. L.
a defendant not procuring) ; 1893, Peddy v. 341.
State, 31 Tex. Cr. 547, 21 S. W. 542 (removal * 1828, Mathews, J., in Miller v. Rnssel, 7
hy contrivance of a private prosecutor does not Mart. N. s. La. 268.
affect the use by the State) ; 1876, IT. S. v. Reyn-
olds, 1 Utah 322, 98 U. S. 158. Cmitra : 1856,
Bergen v. People, 17 111. 427.
1766
§§ 1395-1418]
WITNESS ILL, IN PKISON, ETC.
§1407
mony * thus rendered necessary, and depositions ; ^ although the statutes {post,
§ 1411) have dealt with the latter in almost every jurisdiction.
§ 1407. Same : Attendance prevented by (6) Imprisonment, (7) OfBcial
Duty or Privilege ; (8) Distance of Travel. (6) The witness' imprisonment
for crime, supposing him not to be disqualified for infamy, is no reason for
excusing his non-production ; for his production can presumably be obtained
° The rulings recognizing this ground for
using former testimony are as follows : ETig. ;
1737, Fry v. Wood, 1 Atk. 445 ; 1831, K.' u.
Savage, 5 C. & P. 143 ; the ensuing rulings
are under St. 11 & 12 Vict. c. 42, allowing
testimony before a committing magistrate to be
used when the witness is " so ill as not to be
able to travel " ; most of them are obstinately
narrow ; 1850, R. v. Harris, 4 Cox Cr. 440
(bowel-complaint, not sufficient on the facts) ;
1850, R. V. Harney, ib. 441 (woman's confine-
ment a week before, sufficient) ; 1850, E. v.
TJliner, ib. 441 (cold ; not sufficient) ; 1862, K.
V. Stephenson, 9 id. 156 (woman daily expecting
confinement ; sufficient in trial Court's discre-
tion) ; 1862, R. V. Welton, ib. 296 (illness
must be proved by medical man) ; 1871, R. v.
Bull, 12 id. 31 (bowel complaint two days
before, not sufficient) ; 1874, R. v. Farrell, 12 id.
606 ; L. K. 2 Or. 0. R. 116 (the witness was " very
nervous and 74 years of age"; "it might be
daugerous for her to be examined at all," and
particularly in open court ; but the deposition
was held not admissible) ; 1876, R. u. Thompson,
13 id. 182 (the witness was 87 years of age and
"in such a great state of nervous excitement
that it would be attended with great risk to her
life to bring her into court to give evidence " ;
" it might bring on an attack of ajioplexy ;
there is no actual disease or illness, only a
predisposition to it " ; but the deposition was
excluded) ; 1878, R. v. Heesom, 14 id. 42 (dep-
osition of a woman in daily expectation of
confinement was adinitted); 1878, R. v. Wel-
lings, L. R. 8 Q. B. D. 428 (same ; here it was
pointed out that the degree of illness should be
left to the disci'etion of the trial judge) ; 1887,
R. V. Prnntey, 16 Cox Cr. 344 (unsworn state-
ment of child, under St. 48 & 49 Vict. c. 69,
post, § 1828, not receivable as a deposition in
her absence through illness, under St. 11 & 12
Vict. c. 42) ; La. ; 1828, Miller v. Eussel, 7
Mart. N. s. La. 268 (see citation supra) ; 1882,
State V. Granville, 34 La, An. 1088 ("lying
sick in hospital," sufficient on the facts) ; 1903,
State V. Wheat, 111 La. 860, 35 So. 955 (testi-
mony bel'ore the committing magistrate, of one
since become too ill to be able to attend, ad-
mitted ; the trial Court's determination of the
facts is generally to control ; on h rehearing,
the testimony was held inadmissible because the
witness could attend at the next term and
because the prosecution had misled the defence
bv applying for a continuance) ; Md. ; 1829,
Rogers v. Kaborg, 2 G. & J. 60 ; Mich. .- 1878,
Howard u. Patrick, 38 Mich. 795, 799 ; 1900,
Siefert v. Siefert, 123 id. 664, 82 N. W. 511
(temporary illness, not sufficient) ; N. J. : 1870,
Beruey v. Mitchell, 34 N. J. L. 341 (see citation
supra) ; Pa. : 1827, Pipher v. Lodge, 16 S. & R.
214, 221 (inability to travel, not sufficiently
shown on the facts) ; 1874, Emig v. Diehl, 76 Pa.
373; 1881, McLain v. Com., 99 id. 97 (for
civil cases ; for criminal cases, question reserved) ;
1891, Thornton v. Britton, 144 id. 130, 22 Atl.
1048 {supra, note 2) ; 1893, Perrin v. Wells,
155 id. 299, 300, 26 Atl. 543 (too ill to be
present, sufficient).
6 Eng. : 1666, Lord Morly's Case, Kelyng
55 (liefore coroner) ; 1682, Lutterell v. Reynell,
1 Mod. 282 ; 1709, Althara v. Anglesea, 11 id.
212, per Gould, J. ; 1719, 2 Lilly's Pract. Reg.
703 ("A witness who by reason of sickness,
extreme age, or other cause, cannot come to a
trial, may by order of Court be examined in the
country, before any judge of the Court where the
cause depends, in the presence of the attorney.s
of each side ; and the testimony so taken shall
be allowed to be given in evidence at the
trial"); 1752, Bradley i;. Crackenthorp, Dick.
182 ("the witness being aged and infirm and
unable to travel," it sufficed) ; 1785, Jones v.
Jones, 1 Cox 184 (deposition of one "above
80 years of age and unable to attend in person "
admissible) ; 1868, Palmer v. Aylesbury, 15 Ves.
Jr. 176 ("in such a state of health as not to be
capable of attending ") ; 1813, Corbett v. Corbett,
1 Ves. & B. 335, 342 (order in chanceiy made
for depositions to be read at law if the deponent
proved "unable to attend" the trial by reason
of illness ; Lord Eldon lays down the conditions
on which such an order will be made before-
hand in chancery) ; 1817, Morrison v. Arnold,
19 id. 672 ("sick, incapable of travelling, or
prevented by accident," is sufficient ; said of
depositions id pcrp. mem.) ; Conn.: 1775, Avery
V. Woodruff, 1 Root 76 ("The deposition of a
woman who lived within 20 miles of the court,
that had a child of a month old, dangerously
sick so that the mother could not leave it"
was admitted, as "within the reason of the
statute ") ; 6a. : 1874, Baker v. Lyman, 53 Ga.
339, 341, 350 (excluding a deposition where the
witness was not too ill to be able to testify) ;
JV. II. : 1859, Hayward v. Barron, 38 N. H.
366 ; iV. a : 1903, Willeford v. Bailey, 132
N. C. 402, 43 S. E. 928 (witness "unable to
talk and physically unable to remain in court " ;
deposition received) ; Okl. : 1897, Hanley t>.
Banks, 6 Okl. 79, 51 Pao. 662 ("infirmity"
does not include the case of a wife kept at the
bedside of her sick husband by the necessity of
attending him) ; Vt. : 1869, Johnson «. Sargent,
42 Vt. 195 (old age) ; Fa. : 1898, Taylor v Mal-
lory, 96 Va. 18, 30 S. E. 472.
1767
§ 1407 EIGHT OF CONFRONTATION. [Chap. XLV
by order of Court.^ So far, of course, as this is not the case, there is good
reason for using his former testimony or deposition ; ^ a new" deposition, ob-
tained in prison, could be no better than either of this.^ In some jurisdic-
tions a statute specifically regulates the matter.
(7) An official duty may be sufficient cause for not producing the witness
engaged in that duty; the sufficiency should be left to the trial Court.*
Where the witness, exercising a, privilege as an official {-post, §§ 2206, 2370—
2372) refuses to attend and his attendance is not compellable, the case
falls under the present principle of impossibility of compelling attendance,
and an excuse for non-production clearly exists.^
(8) On grounds of the personal inconvenience of attendance from a distance,
statutes {post, §§ 1411, 1412) have almost everywhere provided, for the case
of depositions, that residence beyond a certain number of miles, or without
the county, shall allow the use of a deposition ; the same cause should be
equally sufficient for using former testimony, though this has rarely been
provided.^ In a few statutes {post, § 1411) this notion of personal incon-
venience has been given such consideration that in cities of a certain size
depositions are in general admissible on the ground that " to require the
personal attendance of witnesses would involve them in great pecuniary loss
and involve a sacrifice of their personal interests without any corresponding
personal advantage." '' This policy is a poor one. In the first place, there is
no reason for exalting the sacrifices of a wholesale merchant or a banker above
those of a farmer ; one deserves no more consideration than the other ; more-
over, the sacrifice in rural districts may be even greater, for it may require
a whole day for a farmer to travel to and from the court, while a city mer-
chant may easily be kept informed by his clerk by telephone of the course
of a trial and need usually not give up more than an hour or two for the
purpose. In the second place, the notion that any citizen's private interests
^ 1896, State i>. Conway, 56 Kan. 682, 44 Pac. 668, Lawrence's Wheaton's International Law,
627 (former testimony admissible, semble, where 393 (upon the Netherlands minister's consenting
by a life-sentence of imprisonment civil death to give his deposition out of court, but not sub-
has ensued, but not here where a year's sentence ject to cross-examination, the district-attorney
• produced no such result and a deposition could at Washington declined to take it, as " it would
have been taken in prison or the prisoner brought not be admitted as evidence ") . For the case of
into court ; opinion obscure). the King, see ante, § 1384.
* 1851, Switzer v. Boulton, 2 Grant U. C. ' Most of the following cases have reference
693 (witness in the penitentiary and refusing to to one of the statutes given post, § 1411: Former
here-examined, knowing that he could not be testimony: 1883, Broach u. Kelly, 71 Ga. 698,
punished for contumacy more severely than by 704 (in adjacent county, Insufficient) ; 1896,
imprisonment ; former testimony received). Spaulding v. R. Co., 98 la. 205, 67 N. W. 227
* 1900, People u. Putnam, 129 Cal. 2o8, 61 (absence from the county, sufficient) ; 1885,
Pac. 961 (couditions determined for granting State v. Allen, 37 La. An. 685 (not in the
order to produce convicts under statute). parish, semble, sufficient); Deposition: 1848,
* 1796, Mushrow a. Graham, 1 Hayw. 361 McLane v. State, 4 Ga. 335 (deposition by
(deposition of a Collector of Imposts received, commission taken for defendant of persons within
as one of those " the duties of whose offices oblige the State, excluded, because the authorizing
them to attend at a particular place for the dis- statute covered civU cases only) ; 1869, Riegel
charge thereof") ; 1828, Noble v. Martins, 7 v. Wilson, 60 Pa. 388, 392, semble (residence
Mart. N. s. 282 (deputy sheriff officially engaged more than 40 miles distant, sufficient),
elsewhere; admitted). ' 1896, Atkinson, J., in Western & A. R.
' Distinguish the following : 1856, Dubois' Co. v. Bussen, 95 Ga. 584, 23 S. E. 207, quoted
Case, Wharton, Digest of International Law, I, post, § 1417.
1768
§§ 1395-1418] WITNESS DETAINED OR INCOMPETENT, § 1409
should override his duty to the community is a false one. The principle
that the whole community, and every member of it, should join in rendering
all possible aid to the establishment of truth and justice is a fundamental
one in civilized society (j)ost, § 219^2). An occasional reminder of these
duties is a wholesome thing ; and the attendance for that purpose upon a
session of a court of justice tends vividly to strengthen the appreciation of this
vital principle. That the citizen should by law be encouraged and abetted
in shirking his fundamental duty to aid in the vindication of the rights
of his fellow-citizens is reprehensible. Such statutes should nowhere be
imitated.
§ 1408. Same : (9) Insanity, or other Mental Incompetency. A witness
who has become insane is no longer qualified ; his testimony in court is
no longer available ; and by universal concession his former testimony ^ or
deposition ^ may therefore be used. So also the loss of any one of the facul-
ties necessary for testimony (ante, § 478) furnishes an equal reason, whether
the loss occurs through disease or through senility. This may be the case
where the lost faculty is that of speech,^ or (under certain circumstances) of
sight,* or of memory ; ^ and it would seem that a total loss of memory through
lapse of time alone should equally suffice, providing the Court is entirely
satisfied of the fact of the loss.^
§ 1409. Same : (10) Disqualification by Interest in the Cause. A dis-
qualification by subsequently-acquired interest makes the witness' present
testimony unavailable, and hence should suffice to allow resort to his
deposition or former testimony. This doctrine was not accepted in
early English common-law practice,^ followed by our Courts in a few in-
^ 1880, Marler v. State, 67 Ala. 62 (Somer- of senility as to have lost his memory of the
ville, J. : "There is no real or practical differ- past") ; 1879, Rothrock v. Gallagher, 91 id. 112
ence between the death of the mind and the ("bereft of memory by senility or sickness");
death of the body") ; 1895, Thompson v. State, 1819, Drayton v. Wells, 1 Nott & McC. 247 ;
106 id. 67, 17 So. 512 ; 1868, Cook v. Stout, 1879, Railroad v. Atkins, 70 Tenn. 250.
47 III. 531 ; 1892, Walkup v. Com., — Ky. — , « The difficulty is that the witness must be
20 S. W. 221 ; 1878, Howard v. Patrick, 38 called in order that this fact may appear, .so
Mioii. 799 ; 1883, Whitaker v. Marsh, 62 N. H. that in practical application there would be no
478 (ill effect overruling a contrary statement in dispensation of his presence ; moreover, he might
State V. Staples, 47 id. 119). in some cases be able to use the deposition or
^ 1790, R. V. Eriswell, 3 T. R. 707 ; 1841, report of testimony as a record of past recoUec-
R. V. Marshall, Car. & M. 147 (even where tion (anfe, §§ 737, 761). Sanctioning ihe nhove
temporary only). cause: 1901, State v. N. 0. "Waterworks Co.,
* 1857, R. «. Cockburn, 7 Cox Cr. 265 (stroke 107 La. 1, 31 So. 395 (former testimony of
of paralysis rendering the witness unable to hear a witness who, " by reason of the lapse of time,
or to speak ; sufficient). 15 years, and his age, was no longer able to re-
* 1705, Kinsman v. Crooke, 2 Ld. Raym. member the facts testified to," held admissible;
1166 (the witness had become blind ; his depo- following Jack v. Woods, Pa., infra) ; 1857,
sition in chancery was used for those parts of Jack v. Woods, 29 Pa. 378, s^Aifi- Repudiating
his testimony which depended on his consults- it; 1868, Cook v. Stout, 47 III. 531, scmble ;
tion of documents) ; 1883, Houston v. Blythe, 1861, Robinson v. Oilman, 43 N. H. 297 ; 1883,
60 Tex. 509, 512 (sufficient, where the witness Velott v. Lewis, 102 Pa. 326, 333 ; 1819, Dray-
hail lost his eyesight and the testimony neces- ton v. Wells, 1 Nott & McC. 248.
sarily involved the examination of docnments). ^ 1702, Holcroft v. Smith, 1 Eq. Cas. Abr.
1861, R. V. Wilson, 8 Cox Cr._453 (illness 224 (Common Pleas); 1718, Baker v. Fairfax,
of the brain affecting memory, sufficient) ; 1895, 1 Str. 101. So also for depositions m^er-^eJMam
Central R. & B. Co. v. Murray, 97 Ga. 326, 22 rmmoriam: 1703, Tilley's Case, 1 Salk. 286
S. E. 972 (loss of memory by old age) ; 1874, (the witness had by inheritance become in-
Emig V. Diehl, 76 Pa. 373 ("such a state terested; "Trevor, C. J., held that they ought
1769
§ 1409
RIGHT OF CONFRONTATION.
[Chap. XLV
stances.^ But it was well established in English chancery practice,^ and
would probably be generally followed in our Courts.* The analogies of the
case of an attesting witness (^ante, § 1316) are in harmony with this result.
§ 1410. Same: (11) Disqualification by Infamy. The same principle rec-
ognizes disqualification by infamy as cause for using a deposition or former
testimony ; ^ but this has been denied by a few Courts,^ apparently upon the
notion that competency at the time of trial is essential. If this were true,
then death itself, as well as insanity and interest, would be insufficient to
allow tlie use of a deposition. There is no support for such a notion ; the
time of the witness' testifying is here the time of the deposition or former
testimony ; his qualifications then to speak the truth are alone concerned.^
§ 1411. Same: Statutes affecting Depositions de bene esse. The condi-
tions of necessity in which a witness' present testimony in court cannot be
had are now in almost every jurisdiction dealt with, in part at least, by stat-
utes.i The causes enumerated in such statutes are seldom more than three
[to be read] ; for that he' was disabled to give
evidence by the act of God, so that It was ia
effect the same thing as if lie were dead. Tracy
and Blencow contra " ; and the K. B. agreed
with the majority).
2 1892, Messimer v. McCray, 113 Mo. 382,
389, 21 S. W. 17 (deponent incompetent since
taking of deposition, excluded) ; 1848, Fagin o.
Cooley, 17 Oh. 44, 50 ; 1808, Irwin v. Reedj4
Yeates 512 ; 1828, Chess v. Chess, 17 S. & ft.
412 (these Pennsylvania cases are no longer
law ; see the cases in note 4, infra) ; 1896,
Moure v. Palmer, 14 Wash. 134, 44 Pac. 142
(party made incompetent by opponent's death).
The following ruling seems erroneous : 1859,
Hayward v. Barron, 38 N. H. 371 (liability to
.self-incrimination, not sufficient).
3 1702, Holcroft v. Smith, 2 Freem. 260, 1
E.i. Cas. Abr. 224; 1715, Gosse v. Tracy, 2
Vern. 699, 1 P. Wms. 287 ; 1743, Haws v.
Hand, 2 Atk. 615 (interest snfficient, though
the interest arose by the witness' own act in
becoming administrator and therefore plaintiff ;
Hardwicke, L. C.) ; 1750, Glynn u. Bank, 2
Ves. Sr. 42 ; 1774, Brown ». Greenly, Dick. 504.
* 1898, Bowie v. Hume, 13 D. C. App. 286,
318 (testimony of one disqualified by survivor-
ship, admitted) ; 1804, Gold v. Eddy, 1 Mass.
1 ; 1843, Sabine v. Strong, 6 Mete. 277 ; 1875,
Evans v. Reed. 78 Pa. 415, 84 id. 254 (party
becoming incompetent as survivor ; former tes-
timony ailmissible) ; 1876, Pratt v. Patterson,
81 id. 114 (same; former testimony); 1880,
Walbridge u. Knipper, 96 id. 50 (same) ; 1879,
Hay's Apiieal, 91 id. 265, 268 (deposition ;
same) ; 1882, Galbraith v. Zimmerman, 100 id.
374 (same ; former testimony) ; 1898, Wells v.
Ins. Co., 187 id. 166, 40 Atl. 802 (physician
becoming subject to privilege by passage of
statute ; deposition admitted).
1 1847, State v. Valentine, 7 Ired. 225, 227.
2 1887, St. Louis I. M. & S. R. Co. «. Harper,
50 Ark. 157, 159, 6 S. W. 720 (subsequent
infamy does not admit ; but here the Court
added a touch of the absurd by ruling that
1770
even the ensuing death by hanging of the con-
victed felon did not admit his deposition) ; 1898,
Redd V. State, 65 id. 475, 47 S. W. 119; 1817,
Le Baron a. Crombie, 14 Mass. 235 ; 1882,
Webster v. Mann, 56 Tex. 119.
3 Compare §§ 483, 583, ante.
^ For certain decisions and other statutes
which concern bastardy and probate of wills, see
post, §§ 1413, 1417 ; for the following statutes
in their bearing on the rules of notice and cross-
examination, see ante, §§ 1380-1382 :
England : In criminal cases : 1867, St. 30 &
31 Vict. c. 35, § 2 (admtssible if the witness is
dead or if " there is no reasonable probability that
such person will ever be able to travel or to give
evidence") ; in civil cases, the following series
of statutes were progressively enacted, the Rules
of 1883 being now in force (these statutes are cited
more fully ante, § 1380) : 1830-1, St. 1 Wm. IV,
c. 22, § 10 (deposition may not be read unless
" the deponent is beyond the jurisdiction of
the court, or dead, or unable from perma-
nent sickness or other permanent infirmity to
attend the trial"); 1873, Rules of Procedure,
under Judicature Act of 1873, c. 66, No. 36
(depositions are allowed where the witness' attend-
ance in court " ought for some sufficient cause
to be dispensed with ") ; 1875, Rules of Supreme
Court, under Judicature Act of 1875, c. 77,
Order XXXVII, Rule 4 (" where it shall appear
necessary (or purposes of justice " depositions
may be authorized and received in evidence) ;
Rule 18 (" Except where by this Order other-
wise provided, or directed by the Court or a
Judge, no deposition shall be given in evidence
at the hearing or trial of any cause or matter
without the consent of the party against whom
the same may be offered, unless the Court or
Judge is satisfied that the deponent is dead or
beyond the j nrisdiction of the Court, or unable
from sickness or other infirmity to attend the
hearing or trial"); 1883, Nadin v. Bassett,
L. R. 25 Ch. D. 21 (personal identity of plain-
tiff ; commission to take plaintiff's testimony in
New Zealand, refused on the facts) ; 1887, Bur-
§§ 1395-1418]
STATUTES FOE DEPOSITIONS.
§1411
or four in number, and never include all those recognized by the Courts at
common law. It would therefore be an error to treat the statutory enumera-
ton V. Railway, 35 W. E. 536, Kay, J. (the
witness, under the above Order, must he " in-
capable of being examined").
Canada: Dom. Rev. St. 1886, c. 135, §§96,
102, 103 (in proceedings in the Supreme or Ex-
chequer Court, any person's deposition may be
ordered when in the Court's opinion it is " owing
to the absence, age, or infirmity, or the distance of
the residence of such person from the place of
trial, at the expense of taking his evidence other-
wise, or for any other reasou, convenient to do
so " ; the depositions may be used without further
proof, " saving all justexceptions"); Grim. Code
1892, § 683 (depositions on commission out of
Canada ; the rules for criminal cases to be " as
nearly as practicable " the same as in civil cases) ;
§ 686 (the deposition of a sick person taken
under ib. § 681 is admissible if the person is
dead or if "there is no reasonable probability
that such person will ever be able to attend at the
tiial to give evidence ") ; § 687 (a deposition at a
prior investigation of the charge is admissible if
the witness "is dead, or so ill as not to be able
to travel, or is absent from Canada"); £. C.
Rev. St. 1897, c. 52, § 134 (county courts ; like
Out. Rev. St. 1897, c. 60, § 143) ; § 137 (like
ib. § 144); u. 56, § 55 (Supreme Court; "on
special grounds," the Court may order that
viva voce testimony be dispensed with) ; t. 62,
§§ 30, 31 (special rules prescribed for divorce) ;
Man. Rev. St. 1902, c. 40, Rule of Court 464
(deposition may be admitted on terras diiected
by the Court) ; Rules 469, 470 (production of
affiant for cross-examination may be required) ;
Rules 485, 499 (depositions taken on commission
of any " aged or infirm person resident within
Manitoba, or of any person who is about to
withdraw therefrom or who is residing without
the limits thereof," may be taken ; they may be
given in evidence ' ' without any other proof of
the absence from this countiy " than the solici-
tor's or agent's affidavit of belief) ; c. 38, § 135
(affidavit of a party or witness without the
judicial district or the province may be received,
in county courts ; but "where it is reasonably
practicable," the judge may require his appear-
ance) ; u. 41, § 59 (Surrogate Court may allow
testimony by deposition, where the witness "is
■without the limits of Manitoba, or where by
reason of his illness or otherwise the Court does
not think fit to enforce the attendance of the
witness in open court ") ; N. Br. Consol. St.
1877, c. 53, § 30 (in the St. John City Court,
depositions may be read, provided it appear
" that such witness is not then within the said
city and county, or that he is sick or infirm,
and unable to attend the trial") ; c. 37, § 186
(Supreme Court ; depositions of witnesses taken
in the Province by reason of illness, etc., are
receivable ; but if they " shall at the time of the
trial be in the Province and able to travel, they
shall be required to give their testimony viva
voce at such trial ") ; § 194 (Supreme Court ;
other depositions and commissions ; the examina-
tion shall not be read unless the deponent " is
VOL. n. — 49
1771
out of the Province, or dead, or unable from
sickness or other infirmity to attend the trial ") ;
c. 49, § 78 (Supreme Court in equity ; deposi-
tions may be read as in c. 37, § 194) ; ]Sewf.
Cons. St. 1892, u. 50, Rules of Court 33, par. 1
(like Ont. Rules, § 483) ; par 17 (except as other-
wise ordered, no deposition shall be received
unless the witness "is dead, or beyond the judi-
cial district in which the court is held, or at
such a distance as in the opinion of the Court or
judge shall justify the admission of the deposi-
tion instead of the attendance of the witness,
or is unable from sickness or other infirmity to
attend ") ; N. W. Terr. Consol. Ord. 1898, c. 21,
Rule 263 (like Ont. Rules, § 483) ; Rule 267
(deposition may be received " on such terms if
any " as the Court directs) ; Rule 280 (except
as otherwise directed, no depo-sition shall be
received iinless "the deponent is dead or be-
yond the jurisdiction of the court or unable
from sickness or other infirmity to attend") ;
N. Sc. Rev. St. 1900, c. 163, § 41 (the deposition
of a judge of the Supreme Court may be used
"if he is, owing to official business, unable to
attend such trial ") ; c. 159, § 41 (in municipal
courts, a deposition may be read when the wit-
ness is "absent from the county, aged, infirm,
or otherwise unable to travel ") ; Rules of Court
1900, Ord. 35, R. 1 ("any witness whose at-
tendance in court ought for some sufficient
reason to be dispensed with " may by order of
Court be examined before a commissioner) ; R.
4 (the Court may empower a party to give a
deposition in evidence "on such tei-ms if any as
the Court or judge directs ") ; R. 17 (except as
otherwise provided in this Order or directed by
a judge, no deposition shall be given in evidence
without consent, unless the deponent "is dead,
or beyond the jurisdiction of the court, or un-
able from sickness or other infirmity to attend
the hearing or trial"); Ont. Rev. St. 1897,
c. 11, § 26 (in controverted elections, the depo-
sitions taken before the examiner may be used);
c. 59, § 29 (in the Surrogate's Court, a deposition
may be taken where the witness "is without the
limits of Ontario, or where by reason of his ill-
ness or otherwise the Court does not think fit to
enforce the attendance of the witness in open
court ") ; c. 60, §§ 141, 142 (the deposition of
a person without the Province may be taken,
but, if he is the party applying or an employee
of his, not unless "a saving of expense will be
caused thereby, or unless it is clearly made to
appear that the person is aged, infirm, or unable
from sickness to appear as a witness ") ; § 143
(a deposition may be taken, if it appears that
" a material and necessary witness residing within
the Province is sick, aged, or infirm, or that he
is about to leave the Province, and that his
attendance at court as a witness cannot by
reason thereof be procured " ; it " may be used
upon the trial, saving all just exceptions ") ;
§ 144 (" a witness who resides in a remote part
of the Province and at a great distance from
the place of trial, if it be clearly made to appear
§ 1411
EIGHT OF CONFRONTATION.
[Chap. XLV
tions as exhaustive ; they can seldom be construed as other than declaratory
of rules already recognized. Nor is there any objection on principle to this
that his attendance cannot be procured, or that
the expense of his attendance would be out of
proportion to the amount involved in the action,
or would be so great that the party desiring his
attendance, should not under the circumstances
be required" to incur it, may be examined by
deposition) ; c. 90, § 10 (on a trial at the
general sessions, a deposition taken before the
magistrate at the original hearing may be used
if the deponent ' ' is dead, or is so ill as not to
be able to attend and give evidence, or is absent
from Ontario," or " after diligent inquiiy cannot
be found to be served with a subpcena ") ; Rules
of Court 1897, § 483 (affidavit not to be author-
ized, if the witness " can be produced " ; quoted
ante, § 1380) ; § 485 (deposition to be ad-
mitted "on such terms as may seem just" to
the judge); P. E. I. St. 1889, § 56 (depositions
shall not be read unless the witness "is beyond
the j^irisdiotion of the court, or dead, or unable
from permanent sickness or infirmity or other
sufficient cause to attend the trial").
United States: Alabama: Code 1897,
§ 18-33 (deposition may he taken (1) if witness
is a woman, or (2) " from age, infirmity, or
sickness, is unable to attend court," or (3)
resides "more than 100 miles from the place of
trial, computing by the route usually traveled,
or resides out of or is absent from the State," or
(4) is "about to leave the State and will prob-
ably not return until after the trial," or (5)
when "the claim or defense, or a material p.^rt
thereof, depends exclusively on the evidence of
the witness," or (6) when the witness is "the
Grovernor, secretary of State, State treasurer.
State auditor, attorney-general, superintendent
of education, commissioner of agriculture, ex-
aminer of public accounts, or the head of any
other department or bureau of the State govern-
ment, chancellor, judge, or clerk of any court of
record, register in chancery, or sheriff ; or presi-
dent, director, or other officer of a bank incorpo-
rated iu this State ; postmaster or other officer
of the United States ; or practicing physician or
lawyer ; or a person constantly employed on any
steamboat or other water-craft, or on any turn-
pike, or raannfaetory, or about the engine or
other machinery of a railroad, or is a super-
intendent, secretary, treasurer, master of road
repairs, or conductor of any railroad ; or is a
telegraph operator ; or a teacher of a public or
private school actually engaged in teaching, or
a minister of the gospel, or pastor of a religious
society in charge of any diocese, parish, church,
district, or circuit"); § 184(5 (deposition not
iisable " if it appear at the trial that the cause
for which it was taken, or some other cause,
does not then exist, unless such witness is dead
or of unsound mind ") ; § 1847 (where the wit-
ness resides iu county and affidavit of necessity
of personal attendance is made, deposition must
be suppressed, "unless the witness, from age,
in firmity , or siokuess, is unable to attend court " ) ;
§ 2681 (in justices' courts, depositions may be
taken also of witnesses residing out of county
1772
and 10 miles distant) ; § 5289 (in criminal cases,
defendant may take the deposition of ' ' any wit-
ness who from age, infirmity, or sickness, is
unable to attend court ; or who i-esides out of
the State, or more than 100 miles from the
place of trial, computing by the route usually
traveled ; or who is absent from the State ; or
where the defense, or a material part thereof,
depends exclusively on the testimony of the wit-
ness") ; § 5291 (so also for prosecution's witness
within the State, on defendant's written consent
filed) ; § 5292 (a deposition is not admissible
"if it appear that the witness is alive and able
to attend court and within its jurisdiction ") ;
§ 5293 (convict's deposition may be taken by
defendant) ; Alaska: C. C. P. 1900, §§ 644,
657, (like Or. Annot. C. 1892, §§ 814, 828,
except that § 644, snbdiv. 3, substitutes "about
to go more than 100 miles beyond the place of
trial ") ; Arizona : P. C. 1887, § 2075 (deposi-
tion of witnesses in Territory taken by accused,
admissible if the witness "is unable to attend,
by reason of his death, insanity, sickness, or in-
firmity, or of his continued absence from the
TeiTitory") ; § 2097 (deposition of a witness
residing out of Territory, taken by accused, ad-
missible if "the witness is unable to attend
from any cause whatever"); Rev. St. 1887,
§ 1850 (iu civil cases, " no deposition of a wit-
ness, except when the witness is a female, shall
be permitted to be read in evidence unless the
party offering the same, his agent, attorney, or
some competent person, shall first make oath
that the witness is without the limits of the
county where the suit is pending, or that such
witness is dead, or that by reason of age, sick-
ness, infirmity, or official duty, such witness is
unable to attend court"); §§ 984, 999 (testi-
mony on contested probate of will, admissible
in subsequent contests over the will if the wit-
ness "is dead or has permanently removed from
this Territory ") ; Arkaiisas : Stats. 1894, § 2978
(deposition is usable (1) " where the witness
does not reside in the county where the action is
pending, or iu an adjoining county, or is absent
from the State, or is in the military serrice of
the United States, or of this State " ; (2) " where
the witness is the Governor, Secretary of State,
auditor or treasurer of this State, a judge or
clerk of a court, a, president, cashier, teller, or
clerk of a bank, a practicing physician, surgeon,
or lawyer, or keeper, officer, or guard of the
penitentiary " ; (3) " where, from age, infirmity,
or imprisonment, the witness is unable to attend
court, or is dead"; (4) "where the witness
resides 30 miles or more " from the place of
trial, " unless the witness is in attendance on
the court ") ; § 2980 (the Conrt may order per-
sonal attendance, on affidavit that his testimony
" is important, and that the just and proper
effect of his testimony cannot, in a reasonable
degree, be obtained without an oral examination
before the jury") ; § 2118 (depo.sitions for the
accused in criminal cases are usable ' ' upon the
death of the witness or his becoming mentally
§§ 1395-1418]
STATUTES FOR DEPOSITIONS.
§ 1411
result. So far as the statute confers a judicial power to order the taking of
a deposition, the power exists only so far as specified by the statute, be-
incapable of teistifying, or physically incapable
of attending the trial or giving his testimony,
or a non-resident of the State, or absent tliere-
froni, so that he could not be summoned " ; but
in last two cases defendant's affidavit "that he
has tried in good faith to procure the attendance
of such witness and been unable to do so" is
necessary) : § 7414 (on a will-probate, the at-
testing-wituess' deposition is admissible if he
resides out of State, or is confined in "another
county or corporation " under legal process, or
is ' ' unable from sickness, age, or other infirmity,
to attend," or resides more than 50 miles dis-
tant) ; § 7425 (testimony on application for
probate, and "any deposition lawfully taken
out of Court," "of witnesses who cannot be
produced at a trial afterward before a jury," is
admissible) ; California: C. C. P. 1872, §§2020,
2021 (deposition of a witness out of the State
may be taken ; that of a witness in the State
may be taken, 1, when he is a party, or an
officer or member of a corporation-party, or a
heneficiaiy of the action ; 2, when he resides
out of the county; 3, when he is "about to
leave the county . . . and will probably con-
tinue absent when the testimony is required " ;
4, when he, "otherwise liable to attend the
trial, is nevertheless too infirm to attend" ;
5, for a motion or like proceedings ; 6, when
the witness "is the only one who can establish
facts or a fact material to the issue ; provided
that the deposition of such witness shall not be
used if his presence can be procured at the time
of the trial") ; § 2032 (if taken under subd. 2,
3, or 4, above, " proof must be made at the
trial that the witness continues absent or in-
firm, oris dead") ; Commissioners' amendment
of 1901 (by substituting for the entirety of
§ 2021 .a provision that depositions taken and
returned may be read except as provided in
§ 2032, and then by prescribing in § 2032 that
"the deposition cannot he read unless proof he
made at the trial that the witness is absent from
the county in which his testimony is to be used,
or resides out of such county and more than 30
miles from the county seat thereof, or that he is
too infirm to attend the trial, or is dead ; but
such jiroof need not be made when the witness
is a party to the action or proceeding, or, when
his deposition was taken, resided out of the
county and more than 30 miles from the county
seat, nor when the testimony is produced on a
motion, or in any other case where the oral
examination of the witness is not required " ;
for the validity of this amendment, see ante,
§ 488) ; § 1997 (production of a witness im-
prisoned in the county may be required) ; P. C.
1872, § 686 (testimony before a committing
magistrate, or a deposition taken conditionally
for the prosecution, admissible if the witness is
"dead, or insane, or cannot with due diligence
be found within the State " ; see the intei-preting
decisions cited ante, § 1398) ; § 1204 (motion
for mitigation or aggravation of sentence ; depo-
sitions allowed, ander certain conditions) ; § 1345
(depositions taken for the accused, usable if the
witness is "unable to attend, by reason of his
death, insanity, sickness, or infirmity, or of his
continued absence from the State"); § 1346
(deposition of a jail-prisoner may be taken, sub-
ject to the foregoing) ; § 1362 (depositions taken
on commission out of the State by the accused
may be read upon a showing "that the witness
is unable to attend from any cause whatever") ;
Colorado: C. C. P. 1891, § 341 (deposition may
be taken where the witness (1) is a party or a
beneficiary, (2) "resides out of the county,"
(3) " is about to leave the county . . . and will
probably continue absent when the testimony
is req_iiired," (4) "though otherwise liable to
attend the trial, is nevertheless too infirm to
attend," (5) "is for any other cause expected
to be unable to attend the trial"); §343 ("If
the deposition be taken by reason of the absence,
or intended absence, from the county of the
witness, or because he is too infirm to attend,
proof by affidavit or oral testimony shall be
made at the trial that the witness continues
absent or infirm, to the best of deponent's
knowledge or belief. The deposition thus taken
may also be read in case of the death of a wit-
ness"); Const. 1876, Art. 11, § 17, Annot.
Stats. 1891, § 4834 (deposition by either party
in a criminal case, admissible, unless "in the
opinion of the Court, the personal attendance of
the witness might be procured by the prosecu-
tion or is procured by the accused ") ; § 4674
(depositions of witnesses to a will, "non-res-
ident" or "resident out of the county" of
application for jjrobate, admissible) ; § 4679
(testimony of witnesses at probate to be ad-
missible on contest in chancery) ; § 2650 (depo-
sition may be taken for trial before justice of
the peace of witness " unable to attend on
account of sickness, age, or other cause ") ;
§ 2651 (same for witness residing out of the
county) ; Columbia (District) : Comp. St. 1894,
c. 70, § 33 (wills; if "any of the witnesses to
the same shall reside out of the district, or be
temporarily absent therefrom at the time, when
the will or codicil shall be so exhibited," their
testimony by deposition maybe taken and used) ;
c. 71, § 19 (testimony taken by commission of a
witness residing out of the District, admissible,
without any conditions specified) ; § 25 (depo-
sition of a witness residing more than 100 miles
from Washington may be taken on commission
by defendant in criminal case) ; c. 20, § 4
(deposition in a civil cause not usable, "unless
it appears to the satisfaction of the Court that
the witness is then dead, or gone out of the
United States, or to a gi'eater distance than 100
miles, ... or that by reason of age, sickness,
bodily infinnity, or imprisonment, he is unable
to travel and appear at court"); Code 1901,
§ 1058 (depositions de bene may be taken of
witnesses more than 100 miles distant, infirm
Or aged, etc. ; but "if at the time of the trial
the witness can be produced to testify in open
court, the deposition shall not be read in evi-
1773
§1411
RIGHT OF CONFEONTATION".
[Chap. XLV
cause the power did not exist at common law (ante, § 1376). But where a
deposition had been lawfully taken — before a common-law judge in person.
dence ; but if tlie attendance of the witness can
not be produced, then the said deposition shall
be admissible in evidence"); § 1060 (deposi-
tions taken on commission shall not be ad-
mitted at the trial "if at the time the witness
be present in the District, and his attendance
can be obtained by the process of the court ") ;
Connecticut : Gen. St. 1887, § 1068 (depositions
may be taken, in civil actions, of persons (1) liv-
ing out of the State, (2) living more than 20
miles from place of trial, (3) "going to sea or
out of the State," (4) " by age or infirmity un-
able to travel to court," (6) confined in jail ; but
nothing is said as to their admission) ; § 1069
(for persons more than 60 years old, depositions
may be taken, and used if deponent is " unable
to attend and testify ") ; Delaware : Rev. St.
1893, c. 77, § 16 (the mother's deposition in a
bastardy case, admissible "if her attendance
oannot be procured") ; Florida: Rev. St. 1892,
§§ 1123, 1132 (deposition may be taken if the
witness "reside out of the county" or "he
bound on a voyage to sea, or be about to go out
of the State to remain until after the trial," or
" be very aged or infirm," or upon affidavit that
party '! believes that a material part of his
claim or defeiioe depends upon the testimony of
such witness " ; no conditions of admissibility
specified) ; § 1142 (deposition may be taken of
an attesting-witness to a will residing out of the
State) ; § 1618 (on adjournment or continuance
before a justice of the peace, depositions of wit-
nesses in attendance may be taken and used on
trial "as if such testimony were given at the
trial ") ; § 1805 (at a probate contest, a deposi-
tion is usable if "the personal attendance of
any witness cannot be obtained, or if it be
manifested inconvenient for any witness to at-
tend") ; § 2912 (accused person may take depo-
sitions of absent persons whose testimony is
material and necessary, if they "reside beyond
the jurisdiction of the court, or are so sick and
infirm that with diligence their attendance can-
not be procured at the same or the next succeed-
ing regular or special term at which the ease
may be tried") ; §2917 (such a deposition is
not to be read " when the attendance of the wit-
ness can be procured," or if the deponent " has
absented himself by the procurement, induce-
ment, or threats of the accused, or of any person
in his behalf"); Georgia: Code 1895," §5297
(deposition may be taken in a civil cause on in-
terrogatories, if the witness (1) resides out of
the county, (2) "from the condition of his
health, from age or otherwise, he cannot attend
the court, or from the nature of his business or
occupation it is not possible to secui-e his per-
sonal attendance without manifest inconven-
ience to the public or to third persons, — such as
postmasters, public carriers, physicians, school-
teachers, etc. " ; (3) is about to remove from the
county, or to leave home on business, for a so-
journ or a tour, which will extend "beyond the
term of the Court " ; (4) " all female witnesses " ;
(5) "the only witness to a material point in the
case " ; but nothing is provided as to the condi-
tions of receiving these depositions) ; § 5313 (in
counties of 20,000 people, any witness' deposi-
tion may be taken ; no conditions provided for
receiving); Hawaii: Civil Laws, 1897, § 1374
(depositions are not to be read " unless it shall
appear to the satisfaction of the Court " that the
deponent is the opposite party, "or is beyond
the jurisdiction of the court, or is resident in
another circuit, or dead, or unable from perma-
nent sickness or other permanent infirmity to
attend ") ; Idaho : St. 1899, Feb. 10, § 6 (depo-
sition may be u.sed "in the trial of all issues, in
any action, in the following cases: first, when
the witness does not reside in the county, or
when he resides in a county adjoining and more
than 30 miles from place of trial, or is absent
from the State ; second, when the deponent is
so aged, infirm, or sick as not to be able to
attend the court or place of trial, or is dead ;
third, when the depositions have been taken by
agreement of parties, or by the order of the
court trying the cause ; fourth, when the depo-
nent is a State or county officer, or a practising
physician, or attorney-at-law, and the trial is to
be had in any county in which the deponent
does not reside " ; for the statutes repealed by
this Act, see Rev. St. 1887, §S 6059-6062, 8166-
8189); niinois: Rev. St. 1874, o. 51, § 25 (in
suits at law, depositions of witnesses resident in
the State may be taken wherever the witness
' ' resides in a different county from that in which
the court is held, is about to depart from the
State, is in custody on legal process, or is unable
to attend such court on account of advanced
age, sickness, or other bodily infirmity ") ; § 26
[dedimus polestatetn commission, allowed in civil
causes for a witness residing in the State more
than 100 miles distant, or not residing in the
State, or engageil in the military or naval ser-
vice of the United States or this State and out
of this State) ; § 34 (every deposition duly taken
and returned " may be read as good and compe-
tent evidence in the cause in which it shall be
taken, as if such witness had been present and
examined by parol in open court, on the hearing
or trial thereof") ; c. 148, § 4 (when an attest-
ing-witness to a will " shall reside without the
limits of this State,'' or the county in which pro-
bate is desired, "or shall be unable to attend
said court," a deposition by commission may be
taken and used); Indiana: Rev. St. 1897,
§§ 432, 441 (deposition is usable when the de-
ponent (1) does not reside in the county, or ad-
joining county, of trial, or is absent from the
State ; (2) is "so aged, infirm, or sick, as not
to be able to attend," or is dead ; (3) when the
deposition is taken by agi'eement or by Court
order; (4) when the deponent is " a State or
county officer, or a judge, or a practicing phy-
sician, or attorney-at-law, " and the trial is in a
county of non-residence) ; §1896 (defendant in a
criminal case may by leave of Court have deposi-
tions taken of witnesses residing out of the State,
but must first enter consent for similar deposi-
1774
§§ 1395-1418]
STATUTES FOE DEPOSITIONS.
§1411
or before a master in chancery — , the conditions on which it could be used
in a common-law court were a simple question of the admissibility of evi-
tions by prosecution on the same matter) ; § 434
(if a witness " is produced in Court," his deposi-
tion is not to be read, unless taken by agreement
or by Court order) ; § 1061 (in divorce causes,
the Court may ' ' for good cause shown " receive
depositions, though the witnesses could attend) ;
Iowa: Code 1897, § 4684 (in a civil action, a
deposition may be taken if the witness resides
in a different county, or "is about to go beyond
the reach of a subpoena," or is "for any other
cause expected to be unable to attend court at
the time of trial") ; § 4709 (unless the record
discloses a cause for taking, the proponent must
show that " the witness is a non-resident of the
county, or such other fact as renders its taking
legal") ; § 3285 (in a will probate, depositions
are allowable of subscribing witnesses residing
out of the State or judicial district) ; § 5224
(depositions taken by the accused "may be read
in evidence " ; no conditions named) ; Knnsas :
Gen. St. 1897, c. 95, §§ 357, 375, e. 102, §§ 171,
169 (depositions usable only "when the witness
does not reside in the county " of trial, or " when
from age, infirmity, or imprisonment the witness
is unable to attend court, or is dead," or upon a
motion, etc.) ; Kentucky: C. 0. P. 1895, § 554
(deposition is usable if the deponent resides 20
miles or more away ; is absent from State ; is its
Governor, secretary, register, auditor, or treas-
urer ; or is judge or court clerk ; or is post-
master, or bank president, cashier, teller, or
clerk ; or is practising physician, surgeon, or
lawyer ; or is keeper, officer, or guard of pene-
tentiary ; or is dead ; or has become of unsound
mind ; or is prevented by infirmity or imprison-
ment from attendance ; or is in the Federal or
State military service) ; § 556 (on affidavit that
the testimony is important and its "just and
proper effect " cannot " in a reasonable degree "
be attained otherwise, the Court may order per-
sonal attendance) ; C. Cr. P. 1895, § 153 (de-
fendant's depositions in criminal cases are nsable
only in case of death, absence from State, or
physical inability to attend for examination) ;
Stats. 1899, §§ 4855, 4863 (attesting-witness to
a will ; deposition may be taken if he resides
out of the Commonwealth, or is confined under
legal process in another county or corporation,
or is unable from sickness, age, or other infirmity
to attend, or resides more than 50 miles away ;
this may be used on the jury trial if the witness
"cannot be produced ") ; Louisiana : Rev. L.
1897, §§ 615, 617 (depositions may be taken by
the clerk of court whenever the party desires ;
no conditions of using specified) ; § 3941 (depo-
sition is allowable for a witness residing out of
the parish of trial) ; § 3942 (deposition of a
member of the religious order of Saint Ursuline
Nuns in New Orleans) ; C. Pr. 1894, § 352
(party residing out of the parish may be ex-
amined on interrogatories without attendance) ;
§§ 138, 425-439 (provision for taking deposi-
tions of non-residents, infirm persons, etc. ;
and "parties in all cases, except criminal and
civil jury cases, may take testimony of wit-
nesses out of court, who reside in the parish
where the cause is pending"); St. 1896, No.
124, Wolff's Rev. L. 278 (in criminal cases the
deposition of a witness taken under detention
is admissible " in case of the death or departure
of said witness from the parish or other inability
to attend court," but not "when the presence of
said witness can be procured by subpoena ") ;
Maine: Pub. St. 1883, c. 107, §§ 4, 17 (deposi-
tion shall not be used if the cause for taking no
longer exists; those causes are (1) "so aged,
infirm, or sick, as to be unable to attend " ; (2)
residence or absence out of the State ; (3) being
bound to sea on a voyage, or about to go with-
out the State or more than 60 njiles away, and
not to return in season ; (4) being a judge and
prevented by official duty from attendance ; (5)
residing in another town ; (6) residing in the
same town, provided he is dead or permanently
removed from the town at the time of trial ;
(7) being confined in prison until after the trial) ;
c. 134, § 19, St. 1885, c. 307 (defendant and
prosecution may take and use certain deposi-
tions as in civil causes ; but the prosecution
may not use its own if the defendant does not
use his) ; c. 64, § 4 (admissible in probate
proceedings when a will-witness lives out of the
State, or more than 30 miles distant, or "by
age or indisposition of body " is unable to at-
tend) ; Maryland: Pub. Gen. L. 1888, Art. 35,
§§ 15, 16 (depositions of witnesses " who cannot
be brought" before Court or of non-resident
witnesses "shall be admitted"; no conditions
specified) ; § 19 (deposition of any witness taken
may be used " in case only " of his death, or of
party's " inability to procure the attendance of
such witness at the time of trial and probable
continuance of such inability " until the next
term) ; § 25 (certain depositions usable, if the
deponent is dead or out of the State or " cannot
be had to attend ") ; Art. 84, § 9 (deposition of
master or " other transient person," in shipping
offences, admissible if not within jurisdiction at
time of trial); Massachusetts: Pub. St. 1882,
c. 169, §§ 24, 34, Rev. L. 1902, c. 175, §§ 26,
36 (the reasons for taking are: residence more
than 30 miles away ; intention to go out of the
Commonwealth and not return in time for the
trial ; "so sick, infirm, or aged, as to make it
probable that he will not be able to attend " ;
the deposition is not to be used " if it appears
that the reason for taking it no longer exists " ;
except the party producing it ' ' shows a sufficient
cause then existing ") ; Michigan : Comp. L.
1897, §§ 10136, 10142 (deposition may be taken
if witness "is about to go or resides out of the
State," or "more than 50 miles from the place
of trial," or "beyond the jurisdiction of the
court," or "when the witness is sick, aged, or
infirm, or where there is reasonable cause for
apprehension that his testimony cannqt be had
at the trial," or where " the purposes of justice
will be aided thereby " ; the deposition may be
read, but nevertheless the Court may order " the
production of the witness, if within the juris-
1775
§1411
EIGHT OF CONFKONTATION.
[Chap. XLV
dence, and were constantly dealt with by the common-law courts, as the
rulings in the foregoing sections indicate ; hence, the principles already
diction " ; and in any case either party may
compel his attendance " if he is within the juris-
diction of the court and alile to attend") ; Miti-
iiesota: Gen. St. 1894, § 5668 (in civil causes,
the deposition, of a witness in the State may be
taken if the witness ' ' lives more than 30 miles
from the place of trial, or is about to go out of
the State and not to return in time for trial, or
is so sick, infirm, or aged as to make it probable
that he will not be able to attend at the trial ") ;
§ 5679 (" no deposition shall be used if it ap-
pears that the reason for taking it no longer
exists," unless the party offering "shows any
sufficient cause then existing for using such
deposition") ; § 5690 (deposition of a witness
out of the State may be read on the trial) ;
§ 5005 (before a justice of the peace, a deposi-
tion is usable if the witness (1) is dead or resides
without the county, (2) "is unable or cannot
easily attend ... on account of sickness, age,
or other bodily infirmity," (3) "has gone out of
the county without the consent or collusion of
the party"); Mississippi: Annot. Code 1892,
§ 1747 (deposition in a civil case may be taken
of a witness in the State, if he (1) is "about to
depart from the State, or by reason of age, sick-
ness, or other cause shall be unable, or likely to
be unable, to attend the court" ; (2) "when
the claim or defense, or a material point thereof,
shall depend upon the testimony of a single
witness " ; (3) when he is a judge of the Supreme
Court, or circuit court, or chancellor, or "any
other officer of the government of the State or
of the United States, who, on account of his
official duties, cannot conveniently attend " ;
(4) "when the testimony of the clerk of any
court of record, or of any sheriB' or justice of the
peace, shall be required beyond the limits of
the county of his residence " ; (5) when a " fe-
male " ; (6) when residing more than 60 miles
distant) ; § 1748 (in a civil cause before a justice
of the peace, allowable also for any witness re-
siding in another county) ; § 1751 (commission
may issue for non-residents) ; § 1756 (deposi-
tions to be admissible ; but the opponent " may
procure the attendance of such witness" and
put him on the stand) ; § 1759 (deposition for
a chancery bill may be taken if the witness
is "sick, aged, infirm, or about to leave the
State"); § 1763 (chancery deposition of "a
party or other interested witness " is not to be
admitted if the opponent file an affidavit ten
days before trial that oral examination is ' ' neces-
sary to the attainment of justice," and if the
witness " be alive at the time of trial and not
unable to attend court on account of disability
from permanent sickness, physical injury, or
from weakness and disability incident to old
age"); § 1764 (in causes testamentary, etc., in
chancery, the party may examine in open court ;
but this is not to change " the rule as to non-
resident witnesses or cases in which depositions
generally are authorized ") ; § 1819 (non-resident
subscribing witness to a will may testify by
deposition) ; § 2245 (in habeas corpiis proceed-
ings, "whenever the personal attendance of a
witness cannot be procured, his affidavit, taken
on reasonable notice to the adverse party, may
be received") ; Missouri: Rev. St. 1899, § 2567
(the accused may take the deposition of a wit-
ness who ' ' resides out of the State, or, residing
within the State, is enceinte, sick or infirm, or
is bound on a voyage or is about to leave this
State, or is confined in prison under sentence
for a felony ") ; § 2568 (such depositions are to
be read ' ' in like cases " as in civil suits) ; § 2569
(the accused may also take conditional examina-
tions by commission as in civil cases) ; § 2877
(civil suits ; any witness' deposition may be
taken conditionally) ; § 2904 (depositions are
usable, ' ' first, if the witness resides or is gone
out of the State ; second, if he be dead ; third,
if by reason of age, sickness, or bodily infirmity,
he be unable to or cannot safely attend court ;
fourth, if he reside in a county other than that
in which the trial is held, or if he be gone to a
greater distance than 40 miles from the place of
trial without the consent, connivance, or collu-
sion of the party requiring his testimony ; fifth,
if he be a judge of a court of record, a practicing
attorney or physician , and engaged in the dis-
charge of his official or professional duty at the
time of the trial ") ; § 4617 (if an attesting wit-
ness to a will ' ' shall reside without the United
States, or out of this State and within the
United States, or within this State and more
than 40 miles " from place of probate, ' ' or if
such witness shall be prevented by sickness
from attending at the time when any will may
be produced for probate," his deposition mav be
taken) ; § 4625 (on the trial of a will's validity,
the oath of a subscribing witness at probate is ad-
missible if he " be deceased or cannot be found ");
Montana: G. C. P. 1895, §§3342, 3361 (likeCal.
C. C. P. §§ 2021, 2032) ; P. C. §§ 2490, 2491
(like Gal. P. C. §§ 1345, 1346); § 2513 (like ib.
§ 1362) ; § 1692 (deposition before a committing
magistrate of a witness not giving an under-
taking, admissible if the witness "be dead or
absent from the State ") ; Nebraska: Comp. St.
1899, § 3277 (the mother's examination on a
bastardy complaint before a magistrate, admis-
sible on the trial) ; § 5946 (a deposition is
usable "only in the following eases''^ first,
when the witness does not reside in the county
or is absent from it; second, "when, from age,
infirmity, or imprisonment, the witness is un-
able to attend the court, or is dead " ; third,
on a motion or where oral examination is not
required) ; § 5960 (deposition not to be read
unless, for a cause specified in ib. § 5946, the " at-
tendance of the witness cannot be procured ") ;
Nevada: Gen. St. 1885, § 3429 (witness in the
State ; like Gal. C. C. P. § 2021, par. 1. 2, 3, 4,
adding in the last : " or resides within the
county but more than 50 miles from the place
of trial ") ; § 3431 (" If the deposition be taken
by reason of the absence or intended absence
from the county of the witness, or because he is
too infirm to attend, proof by afiidavit or oial
1776
§§ 1395-1418]
STATUTES FOE DEPOSITIONS.
§ 1411
established for this purpose at common law remain in force unless expressly
changed by statute. Those principles have nothing to do with the lack of
testimony shall be made at the trial that the
witness continues absent or infirm, to the best
of the deponent's knowledge or belief " ; the
witness' death also admits the deposition) ; § 3433
(witness out of the State ; no conditions prescribed
for using) ; § 3422 (deposition allowable for a
witness imprisoned in jail) ; § 391Q (deposition
of a witness for the People, taken conditionally,
is admissible if it is "satisfactorily shown to
the Court that he is dead or insane, or cannot,
with due diligence, be found in the Territory ") ;
§ 4431 (defendant in a criminal case may take
the deposition of a witness who "is about to
leave the State, or resides out of the State,
or has departed from the State and his or her
place of abode is known, or is so sick oi' infirm
as to afford reasonable grounds for apprehend-
ing that he or she will be unable to attend the
trial") ; § 4450 (such a deposition is usable
" upon it being shown that the witness is un-
able to attend from any cause whatever ") ; New
Hampshire: Pub. St. 1891, c. 225, § 1 (any
deposition may be used in a civil cause unless
the adverse party procures the witness' attend-
ance) ; § 13 (depositions for the accused in
criminal cases may be used in the Court's dis-
cretion when necessary for justice) ; New Jersey:
Gen. St. 1896, Evidence, § 42 (a deposition is
usable if the witness "resides or is out of the
State, or is dead, or by reason of age, sickness,
or bodily infirmity is unable to attend " ; see also
Justices' Courts, § 116) ; § 64 (deposition of a
party is not to be taken in his own behalf, except
by consent or by judicial order) ; § 67 (deposi-
tion of a party residing out of the StHte may be
taken like that of any witness) ; St. 1900, c. 150,
§ 51 (re-enacts St. Evidence. § 42, supra) ; New
Mexico: Comp. L. 1897, § 3036 (civil cases; a
deposition may be taken (1) "when by reason
of age, infirmity, sickness, or official duty, it is
probable that the witness will be unable to
attend the court" ; (2) when he "resides with-
out the Territory or the county in which the
suit is pending" ; (3) when he "has left or is
about to leave" the 'I'erritory or county, "and
will probably not be present at the trial") ;
§ 3048 (it may be read in evidence ; no conditions
named) ; § 220 (at the original probate of a
will, the deposition of a witness may be taken
when he is " not a resident of the county in
which such will is offered for probate, and also
whenever any witness is incapacitated from sick-
ness or age from attending upon such court " ;
the deposition when filed to have the same effect
as if the witness testified in person) ; New York :
C. 0. P. 1877, § 836 (a physician or surgeon
attached to hospital, etc., may testify before a
referee to the condition of a patient in an action
for personal injury, the judge having discretion
to order his examination in court) ; § 882 (a
deposition, except one of an adverse party or
one taken by stipulation, is not to be used
unless the witness is dead, or "unable person-
ally to attend by reason of his insanity, sick-
ness, or other infirmity," or is imprisoned, or is
absent from the State so that attendance "could
not with reasonable diligence be compelled by
subpoena " ; see also § 910) ; C. Or. P. 1881,
§ 8 (depositions are admissible against the
accused, if the witness is dead, insane, or cannot
with due diligence be found in the State) ;
§§ 219, 631 (a deposition taken on either side in
a criminal case may be used if witness is "un-
able to attend, by reason of his death, insanity,
sickness, or infirmity, or of his continued absence
from thei State"); North Carolina: Code 1883,
§ 1358 (depositions are admissible if the witness
(1) is dead or has become insane, (2) is a
resident of a foreign country or another State
and is not present, (3) is confined in prison
beyond the county, (4) is "so old, sick, or in-
firm as to be unable to attend court," (5) is the
Federal president or head of a department, or
Federal judge, district attorney, or clerk, and
the trial occurs during term of his court, (6) is
the State Governor or head of a department or
president of the university or other incoi-porated
college, (7) is a State Supreme Court judge, or
a judge, presiding officer, clerk, or solicitor of
a court of record, and the trial occurs during the
court's term, (8) is a member of Congress or the
General Assembly, and the trial occurs during a
session, (9) if the witness, being summoned, is
out of the State or more than 76 miles distant by
usual mode of travel, without the offeror's pro-
curement or consent) ; St. 1891, c. 522 (deposi-
tions taken by the accused may be read on above
conditions); North Dakota: Kev. C. 1896,
§§ 5671, 6685 (like Okl. Stats. §§ 4236, 4250) ;
§§ 8383, 8384, 8396 (criminal cases ; like Cal.
P. C. §§ 1345, 1346, 1362); Ohio: Rev. St.
§§ 5265, 5281 (a deposition is usable when the
witness (1) "does not reside in or is absent
from" the county; (2) "is dead, or from age,
infirmity, or imprisonment, is unable to attend
court"; it is also usable on motions or "where
the oral examination of the witness is not re-
quired ") ; § 5946 (in probating a lost or destroyed
will, the deposition may be taken of a witness
residing out of the jurisdiction, or infirm and
unable to attend court) ; § 5928 (same, for ordi-
nary probate) ; § 7293 (in criminal cases, the
defendant may have a deposition taken of a
witness who (1) resides out of the State ; (2) is
sick or infirm, (3) is about to leave the State,
or (4) is confined in any prison of the State ;
nothing said as to admissibility) ; Oklahoma :
Stats. 1893, § 4236 (a deposition is usable only
(1) when the witness does not reside in the
county of trial or is absent from it ; (2) when
"from age, infirnuty, or imprisonment, the
witness is unable to attend court, or is dead" ;
(3) when the case is one in which oral testimony
is not required) ; § 4250 (on offering a deposi-
tion, it must appear that for ' ' any cause speci-
fied" in the above section "the attendance of
the witness cannot be procured ") ; § 6287 (on a
hearing for mitigation or aggravation of sen-
tence, depositions may be used if the witness is
"so sick or infirm as to be unable to attend ") ;
1777
§ Ull
EIGHT OF CONFKONTATION.
[Chap. XLV
judicial power to initiate the taking of a deposition. It would be unfortu-
nate if the patchwork legislation of the statutes on this subject should be
thoiight to alter the already well-established principles of the common law.
§ 5349 (in criminal oases the deposition of a
material witness may be taken for defendant if
the witness is ' ' about to leave the Territory, or
is so sick or infirm as to aft'ord reasonable grounds
for apprehending that he will be unable to attend
the trial") ; § 5357 (such a deposition is usable
" upon its appearing that the witness is unable
to attend by reason of his death, insanity, sick-
ness, or infirmity, or of his continued absence
from the Territory "); §§ 5359, 5371 (the deposi-
tion of a material witness for defendant residing
out of the Territory may be read " upon it being
shown that the witness is unable to attend from
any cause whatever ") ; § 5358 (the deposition
of a material witness for defendant may be
taken if the witness is prisoner in a Territorial
prison or in a jail of a county other than that of
trial) ; Oregon : C. C. P. 1892, § 814 (a deposi-
tion in the State may be taken when the
witness (l)is a party, (2) is privileged from attend-
ance under ib. § 795 by reason of distance, (3) is
' ' about to leave the county and go more than
20 miles beyond the place of trial, " (4) " though
otherwise liable to attend the trial, is neverthe-
less too infirm to attend " ; and (5) on a motion
or otherwise where oral examination is not re-
quired) ; § 828 (when taken under (2), (3), or
(4) of ib. § 814, not usable unless proof is made
"that the witness did reside beyond the service
of a subpoena, or that he still continues absent
or infirm, as the case may be") ; Rhode Island:
Gen. L. 1896, c. 244, §§ 20, 27 (apparently no
restrictions whatever as to accounting for wit-
ness' abseace ; but by §36 any Court "may
order the oral examination of witnesses in open
court"); § 38 (viva voce testimony recjuired in
divoi'ce cases, unless in case of physical dis-
ability to attend, residence and presence out of
the State, or a deponent before a master in
chancery) ; South Carolina : Rev. St. 1893,
§§ 2332, 2334, 2335, Code 1902, §§ 2868, 2870,
2871 (a deposition may be taken under commis-
sion, if the witness (1) resides out of the State
or county, (2) or resides more than 100 miles
from court, (3) or is about to remove from the
State before trial expected, (4) or cannot per-
sonally be procured " by reason of indispensable
attendance on some public official duty or pro-
fessional duty as an attorney at such time, ' or
(5) " bj' reason of such sickness or infirmity as
incapacitates such witness or witnesses from
traveling in order to appear and testify " ; nothing
is said as to conditions of admissibility ; except
that by § 2334 personal attendance may be com-
pelled of any deponent residing within the
county or not more than 30 miles from court
house ; and by § 2335 the attendance of an officer
of a lunatic asylum in a civil cause is to be
required only when " justice cannot be done "
without it) ; B. S. § 2341, C. § 2877 (a com-
mission shall issue for "persons unable to leave
home by reason of age, infirmity, sickness, or
bodUy hurt"); E. S. §2342, C. §2878 (any
1778
party's or witness' deposition may be taken in
civil causes before the clerk of court, subject to
either party's right to reciuire personal attend-
ance) ; R. S. § 2345, C. § 2881 (depositions may
be taken de bene before a judge, clerk, notary,
etc., if the witness (1) lives without the county,
( 2) lives more than 100 miles away, (3) is bound
to sea, (4) is about to leave the State or the
county or to go 100 miles away, or (5) is aged
or infirm ; but by § 2347 such depositions are to
be used only if it appears that the deponent is
dead or out of the couuty or State or 100 miles
away, or is by reason of age, sickness, bodily
infirmity, or imprisonment, unable to travel and
appear ; for justices' courts, seeib. § 891); South
Dakota: Stats. 1899, §§ 6514. 6527 (like N. D.
Rev. 0. §§ 5671, 5685) ; §§ 8818, 8832 (criminal
cases ; like Cal. P. C. §§ 1345, 1362) ; Tennessee:
Code 1896, § 5624 (deposition in a civil action
may be taken if the witness (1) "from age,
bodily infirmity, or other cause," is incapable
of attending ; (2) resides out of the State ; (3)
resides out of the county ; (4) is obliged to leave
the State before_issue ; (5) is about to leave
the county and "will probably not return until
after the trial " ; (6) is "the only witness to a
material fact" ; (7) is "an officer of the United
States, an officer of this State or of any county
in this State," clerk of another court of record,
member of the General Assembly in session or a
clerk or officer thereof, a practising physician
or attorney, or a jailer or prison-keeper of another
county ; (8) is a notary public ; (9) when the
suit is brought in forma pauperis) ; § 5625 (a
female witness may testify by deposition, uuless
sufficient cause be shown for compelling her
attendance) ; § 5626 (the deposition of any person
in the county may be taken, hut the opponent
may summon him to attend) ; § 5631 (the
opponent may compel attendance in the above
cases, except where the witness is by law priv-
ileged not to attend) ; § 7356 (rules for civil cases,
applicable to defendant's depositions in criminal
cases) ; §§ 7574-7576 (a convict not being re-
movable for a civil case, his deposition may be
used ; defendant in a criminal case may also use
it) ; Texas: Rev. Civ. Stats. 1895, § 2273 (dep-
ositions may be taken in all civil suits ; "pro-
vided, the failure to secure the deposition of a
male witness residing in the county in which the
suit is pending shall not be regarded as want of
diligence where diligence has been used to secure
his personal attendance by the sei-vice of subpoena
or attachment, under the rules of law, unless by
reason of age, infirmity, or sickness or official
duty, the witness will be unable to attend the
court, or unless he is about to leave or has left
the State or county in which the suit is pend-
ing, and will not probably be present at the
trial ") ; § 2290 (depositions may be read ; no
conditions prescribed) ; § 1900 (at the probate
of a will, ' ' if all the [subscribing] witnesses are
non-residents of the county, or those resident of
§§ 1395-1418]
STATUTES FOE DEPOSITIONS.
§ 1412
§ 1412. Same : Statutes affecting Depositions in Perpetuam Memoriam.
It has been customary, in statutory enactments, to deal separately with
the county are unable to attend court," their
depositions may be used ; where the subscribing
witnesses are dead, the witnesses to handwriting
may testify "by deposition") ; C. Cr. P. 1895,
§ 797 (the accused may take the deposition of
any witness, not to be used except on giving
consent to use by the State ; and also of a
witness who resides out of the State or is aged
or infirm); §812 (such depositions "shall not
be read, unless oath be made that the witness
resides out of the State, or that since his deposi-
tion was taken the witness has died ; or that he
has removed beyond the limits of the State ; or
that he has been prevented from attending the
court through the act or agency of the defend-
ant, or by the act or agency of any person whose
object was to deprive the defendant of the benefit
Of the testimony ; or that by reason of " age or
bodily infirmity such witness cannot attend") ;
§ 813 (the foregoing oath " may be made by the
district or county attorney or any other credible
person" for the State; for the defendant "the
oath shall be made by him in person ") ; United
States: Rev. St. 1878, §861 ("The mode of
proof in trials of actions at common law shall
be by oral testimony and examination of wit-
nesses in open coiirt, except as hereinafter pro-
vided ") ; § 863 (in civil cause in a district or
circuit court a deposition may be taken "when
the witness lives at a greater distance from the
place of trial than 100 miles, or is bound on a
voyage to sea, or is about to go out of the United
States, or out of the district in which the case
is to be tried, and to a greater distance than 100
miles from the place of trial, before the time
of trial, or when he is ancient and infirm") ;
§ 865 ( " Unless it appears to the satisfaction of
the Court that the witness is then dead, or
gone out of the United States, or to a greater
distance than 100 miles from the place where
the court is sitting, or that, by reason of age,
sickness, bodily infirmity, or imprisonment, he
is unable to travel and appear at court, such
deposition shall not be used in the cause ") ;
§ 866 ("In any case where it is necessary, in
order to prevent a failure or delay of justice,
any of the courts of the United States may grant
a dedimus potestatein to take depositions accord-
ing to common usage ; . . . and the provisions
of sections 863, 864, and 865, shall not apply to
any deposition to be taken under the authority
of this section ") ; for the construction of the
foregoing provisions, see particularly ^os<, §1417,
amte, § 1381 ; Utah: Rev. St. 1898, § 3454 (the
deposition of " a witness out of the State " is
usable, without conditions specified) ; § 3455
(witness in the State ; like Cal. 0. C. P. § 2021,
par. 1 to 5, omitting the second clause of par. 1) ;
§ 3457 (like Oal. C. C. P. § 2032) ; § 4513 (crim-
inal cases ; like Cal. P. C. § 686) ; § 3429 (like
Cal. C. C. P. § 1997) ; § 4917 (mitigation or
aggravation of sentence ; like Oal. P. C. § 1204) ;
§§ 5037, 5051 (like Cal. P. 0. §§ 1345, 1362) ;
St. 1899, 0. 57 (a deposition taken de bene in a
criminal case may be used if the witness " is
1779
either dead or out of the State"); Vermont:
Stats. 1894, § 1257 (a deposition may be taken
of a person (1) residihg more than 30 miles dis-
tant, (2) about to leave the State, not to return
before trial, (3) incapable of traveling and appear-
ing, through "age, sickness, or other bodily
infirmity," (4) residing out of the State, (5) con-
fined in jail, (6) being a judge of the Supreme
Court, going out of his residence-county on
official duty, not to return before trial ; no
provision as to the conditions of using such
depositions) ; § 2343 (in probate proceedings, a
deposition may be taken where the person
resides out of the probate district, or is unable
to attend through age or bodily infirmity) ;
Virginia: Code 1887, § 3365 (a deposition is
usable if the witness is "dead, or out of this
State, or one of its judges, or a superintendent
of a lunatic asylum distant more than 30 miles
from the place of trial, or in any public office or
service the duties of which prevent his attending
the court, or be unable to attend it from sickness
or other infirmity, or be more than 100 miles
from the place of trial" ; but in the last in-
stance the Court may require attendance) ; § 2537
(if a will-witness is ' ' unable from sickness, age,
or other infirmity to attend," or in case of his
confinement in another county or corporation in
the State under legal process; his deposition may
be taken) ; § 2546 (testimony on a motion to
probate a will, or depositions taken thereunder,
of witnesses who " cannot be produced at a trial
afterwards before a jury," are admissible) ; § 413
(deposition of certain officers, not compellable to
leave the office to testify in State bond-coupon
suits, admissible); Washington: C. & Stats.
1897, § 6017 (a deposition may be taken when
the witness (1) "resides out of the county and
more than 20 miles from the place of trial,"
(2) "is about to leave the county and go more
than 20 miles from the place of trial, and there
is a probability that he will continue absent
when the testimony is required," (3) "is sick,
infirm, or aged, so as to make it probable that
he will not be able to attend at the trial," (4)
"resides out of the State") ; § 6028 ("If it
appear at the trial that the reason for taking
the deposition no longer exists, the deposition
shall not be read in evidence, unless the party
offering it shows that another of the causes
specified by § 6017 then exists, or that the wit-
ness is dead, or cannot safely attend at the trial
on account of sickness, age, or other bodily
infirmity ") ; § 6101 (the deposition of an attest-
ing witness to a will may be taken when he is
"prevented by sickness from attending at the
time when any will may be produced for probate,
or resides out of the State or more than 30 miles
from the place ") ; § 6708 (a witness for the
prosecution, released on recognizance ; his depo-
sition taken by a magistrate may be read on the
trial "if the witness is not present when re-
gnired to testify in the case ") ; § 6749 (before a
justice of the peace, a deposition cannot be used
unless the witness " 1, is dead, or resides more
§1412
EIGHT OF CONFRONTATION".
[Chap. XLV
depositions in perpetuam memoriam in specifying the conditions of neces-
sity allowing their use.^ There is, however, no need for a separate treat-
than 20 miles from the place of trial ; or, 2, is un-
able, or cannot safely attend before the justice on
account of sickness, age, or other bodily infirmity;
3, that he ha,s gone more than 20 miles from the
place of trial without the consent or collusion of
the party oflFering the deposition ") ; § 6925 (on
a criminal trial, confrontation is necessary, but
wherever witnesses whose depositions have been
lawfully taken by a committing magistrate "are
absent, and cannot be found when required to
testify in such case, so much of such deposition "
as is competent is admissible) ; § 6003 (the
deposition of one confined in jail maybe taken) ;
West Virginia: Code 1891, c. 130, § 36 (a
deposition is usable if the witness be " dead,
or out of this State, or one of its judges, or in
any public ofiSce or service the duties of which
prevent his attending the court, or be unable to
attend It from sickness or other infirmity, or be
out of the county " ; but in the last case attend-
ance may for good cause be required) ; c. 50,
§ 111 (before a justice of peace, it is usable if
the witness is absent from county, sick, or
otherwise unable to attend) ; c. 159, § 1 ("every
deposition " in a criminal ease, taken by the
accused, may be read by him ; it may be taken
of one non-resident or absent from the State, or
aged and infirm so as to be unable to attend) ;
c. 77, § 27 (subscribing witness to a will ; the
deposition may be taken and used if he is out
of the State, confined under legal process in
another county, or unable to attend from sick-
ness, age, or other infirmity) ; Wisconsin : Stats.
1898, § 4086 (" In all criminal or quasi-criminal
cases in courts of record," the defendant may
obtain leave to take the deposition of "any
material witness within the State who is in
imminent danger of death or who is without
the State"); §4089 ("No deposition shall be
used if it shall appear that the reason for taking
it no longer exists, unless the party producing
it shall show other sufficient cause then existing
for its use ") ; § 4095 (the deposition of a party
may be taken for himself for the same causes as
that of any witness) ; § 4101 (the deposition of
a witness within the State may be taken when
the witness (1) lives more than 30 miles distant
or beyond the reach of subpoena, (2) is about to
"go out of the State, not intending to return
in time for the trial or Hearing," (3) "is so
sick, infirm, or aged as to make it probable
that he will not be able to attend," (4) is a
member of the Legislature and his House or
a committee is in session, (5) "when his testi-
mony is material to any motion or other similar
proceeding pending in any court of record, and
he shall have refused voluntarily to make his
affidavit") ; § 4110 (the deposition of any wit-
ness without the State may be taken) ; § 4113
(a deposition by commission for a witness with-
out the State may be taken (1) after issue of
fact joined, (2) after no answer or demurrer
filed in due time, (3) before issue of fact joined,
"when the witness is so sick, infirm, or aged
as to afford reasonable ground to apprehend
1780
that he may die or become unable to give his
testimony, or when he is about to remove so
that his testimony cannot conveniently be taken,
or for any other cause which shall be deemed
sufficient by the Court"; (4) "when required
for use on any trial or hearing or upon any
motion or proceeding before or after judg-
ment"); Wyoming: Kev. St. 1887, §§ 2613,
2629 (like Oh. Eev. St. §§ 5265, 5281) ; § 3293
(like ib. § 7293 ; for depositions before justices
of the peace, see §§ 3457-3460).
^ With the following, compare the statutes
cited ante, § 1383, for notice and cross-exam-
ination as required for such depositions: Ala.
Code 1897, §§ 1867, 1871 (usable "upon proof
of the death or insanity of the witness," or his
non-residence in the State) ; §§ 1872, 1874 (depo-
sitions perpetuated by heirs or distributees to
prove kinship with a decedent, may be taken
" when the witness is over 60 years of age, or is
infirm, or resides out of the State, or is about to
go beyond the United States, or when the claim
of such person depends exclusively on the testi-
mony of such witness or witnesses," and are
apparently usable unconditionally) ; Alaska C.
C. P. 1900, § 690 (like Or. Annot. C. 1892,
§ 863) ; Ariz. Rev. St. 1887, § 1839 (usable "in
like manner as " other depositions) ; Ark. Stats.
1894, § 3022 (usable "where the witness is
dead or insane, or, if alive and of sound mind,
where his attendance for oral examination can-
not be required ") ; Cal. C. C. P. 1872, § 2088
(usable " upon proof of the death, or insanity of
the witnesses, or that they cannot be found, or
are unable by reason of age or other infirmity to
give their testimony ") ; Oolo. C. C. P. 1891,
§ 370 (admissible " upon proof of the death or
insanity of the witness or witnesses, or of his or
their inability to attend the trial by reason of
age, sickness, settled infirmity, or for any other
cause ") ; Del. Rev. St. 1893, c. 56, § 2 (deposi-
tion to perpetuate in boundary cases, admissible
"in case of the death of the witnesses or ina-
bility to procure their attendance ") ; D. 0.
Comp. St. 1894, c. 20, § 8 (usable if the wit-
ness "die before such arbitration or trial, or
cannot be had to attend the same, of which
satisfactory proof shall be made ") ; § 14 (any
U. S. court may in discretion admit any deposi-
tion in perpetuam) ; Fla. Rev. St. 1892, § 1141
(usable on the same conditions as if taken pro
lite) ; Oa. Code 1895, § 3966 (usable " de bene
esse, if, at the time the litigation arises, no
more satisfactory examination of the witness
may be had ") ; § 3961 (they " shall be afterward
used only from the necessity of the case ") ; Saw.
Civil Laws 1897, § 1392 (receivable "where the
witness or witnesses are insane or dead, or their
attendance for oral examination cannot be re-
quired or obtained ") ; Ida. St. 1899, Feb. 10,
§ 28 (usable " upon the proof of death, insanity,
or absence from the State of such witness, or
distant more than 30 mile.<i from the place of
trial, or inability by reason of age or infirmity to
attend"); III. Rev. St. u. 51, § 46 (admissible
1395-1418]
STATUTES FOR DEPOSITIONS.
§ 1413
ment ; whatever causes are sufficient for the one suffice equally for the other
class. The common-law principles applicable to depositions in perpetuam
memoriam never reached a full development (§ 1417, post) ; but it would be
proper, where the statute was silent, to apply the principles dealt with in
the foregoing sections.
§ 1413. Same: Statutes affecting Testimony at a Former Trial. Statutes
dealing with this class of evidence are comparatively few in number.' It is
as if originally taken in the suit) ; Ind. Eev. St.
1897, § 453 (usable upon " the death, insanity, or
absence from the State of such witness, or ina-
bility by reason of age or infirmity to attend ") ;
§§ 1272, 1280 (testimony before a recorder, etc.,
to perpetuate a lost deed, record, etc. , usable ap-
parently unconditionally) ; la. Code 1897, § 4723
(usable " where the witnesses are dead or insane,
or where their attendance for oral examination
cannot be had as required") ; Kan.Gen. St. 1897,
c. 95, § 387 (usable "where the witnesses are
dead or insane, or where attendance for oral ex-
amination cannot be had or required ") ; Ky.
C. C. P. 1895, § 613 (depositions usable on the
conditions provided for de bene depositions) ;
La. C. Pr. 1894, § 440 (usable "should the
witness examined be dead or absent") ; Mass.
Pub. St. 1882, c. 169, §§ 50, 64, Rev. L. 1902,
e. 175, §§ 52, 64 (admissible on the same con-
ditions " as if it had originally been taken " for
the suit) ; Mich. Comp. L. 1897, § 10140 (the
testimony " maj' he used in case it cannot again
be obtained at the time of trial ") ; Minn. Gen.
St. 1894, §§ 5697, 5704 (usable on the same condi-
tions as if originally taken for the action) ;
Miss. Annot Code, 1892, § 1775 (admissible in
case of " death, insanity, subsequent incompe-
tency, or departure to some place unknown ") ;
Mo. Rev. St. 1899, §4540 (admissible, "first,
if the deponent is dead, second, if he be unable
to give testimony, by reason of insanity or im-
becility of mind ; third, if he be rendered in-
competent, by judgment of law ; fourth, if he
be removed, so that his testimony cannot be
obtained"); § 4557 (depositions taken to
establish land-corners, admissible ; no condi-
tions specified) ; Mont. C. C. P. 1895, § 3425
(like Cal. C. C. P. § 2088) ; Nebr. Comp. St. 1899,
§ 6000 ( usable ' ' where the witnesses are dead,
or insane, or where their attendance for oral
examination cannot be obtained or required") ;
Nev. Gen. St. 1885, §3444 (usable "upon proof
of the death or insanity of the witness, or of
his inability to attend the trial by reason of age,
sickness, or settled in firmity ") ; N. M. Comp.
L. 1897, § 3064 (admissible if the deponent is
dead, or "unable to give testimony by reason of
insanity or of imbecility of mind," or "rendered
incompetent by judgment of law," or " removed
out of the Territory so that his testimony can-
not be obtained ") ; A'. B. Rev. C. 1895, § 5711
(like Gal. C. C. P. § 2088) ; Oh. Eev. St. 1898,
§ 5878 (receivable if the witness is dead or
insane or his " attendance for oral examination
cannot be required or obtained ") ; § 1191 (depo-
sition taken by a county surveyor in proof of
old marks, etc., admissible, only if the witness
1781
is dead or without the jurisdiction) ; Okl. Stats.
1893, § 4284 (admissible "where the witnesses
are dead or insane, or where attendance for oral
examination cannot be obtained or required ") ;
Or. C. C. P. 1892, § 863 (admissible on proof
" of the death or insanity of the witness, or that
he is beyond the State and his residence un-
known, or of his inability to attend the trial by
reason of age, sickness, or settled infirmity" ;
but in equity this proof is unnecessary ; see
Hill's Codes for different provisions in an unen-
acted statute of 1870) ; R. I. Gen. L. 1896, c.
244, § 32 (usable in case of death, unsound
mind, absence from the State, or inability to
attend) ; S. D. Stats. 1899, § 6552 (like Okl.
Stats. § 4284) ; Tenn. Code 1896, § 5678 (ad-
missible on the witness' "death, insanity, or
departure to some place unknown ") ; §§ 5624,
5682 (in case of a notary, admissible if he should
" die or remove out of the State ") ; U. S. Rev.
St. 1878, § 867 (quoted ante, § 1387) ; § 866
(provisions as to depositions de bene do not
here apply) ; Utah Rev. St. 1898, § 3471 (like
Cal. C. C. P. § 2088) ; IFash. C. & Stats. 1897,
§ 6038 (usable " upon' proof of the death or in-
sanity of the witness, or his inability to attend
the trial by reason of age, sickness, or settled in-
firmity") ; Wis. Stats. 1898, §§ 4121, 4129, 4134
(usable on "the same conditions " as depositions
taken pending action) ; Wyo. Rev. St. 1887,
§ 3071 (admissible " when the witnesses are dead
or insane or when their attendance for oral ex-
amination cannot be required or obtained").
"■ With the following, compare the statutes
just cited in § 1411, for the word " deposition "
is sometimes used to signify the magistrate's
report of testimony ; compare also the citations
ante, § 1388, for identity of issues and parties ;
for statutes affecting probate and bastardy pro-
ceedings, see the interpreting decisions cited
post, § 1417 : Eng. 1849, St. 11 & 12 Vict. c. 42,
§ 17 (testimony hefore a committing magistrate,
taken in writing, on a charge of an indictable
offence may be used if the deponent "is dead,
or so ill as not to be able to travel ") ; Can.
N. Br. Consol. St. 1877, c. 46, § 30 (former testi-
mony admissible, if the witness ' ' is dead, or out
of the Province, or from sickness or infirmity is
unable to attend"); Ala. Code 1897, §4300
(testimony of subscribing witnesses at a will-
probate is admissible on a contest in chancery) ;
Ariz. St. 1893, Mar. 6, No. 4 (ofiacial report of
testimony of witness at a former criminal trial
of the same cause, admissible for either party, if
the witness "shall die or be beyond the juris-
diction of the Court in which the cause is pend-
ing ") ; St. 1903, No. 25, amending Eev. St.
§ 1413
EIGHT OF CONFEONTATION.
[Chap. XLV
here even clearer than in the case of depositions {ante, § 1411) that the
statutory enumeration of conditions of admissibility is not to be taken as
exclusive.
evidence in the district court [on a trial de novo
on appeal] ") ; § 599 (same provision ; testimony
usable " without being obliged to produce the
witnesses in person ") ; the two foregoing sec-
tions are annotated by the editor as "inopera-
tive," without citing authority; §1042 (testi-
mony in writing before a probate court " may
be read on the appeal ") ; § 943 (depositions of
witnesses at the time of probating a will are
admissible " in case the will is subsequently
attacked, although such witness be dead or
removed permanently from the State ") ; Me.
Pub. St. 1883, c. 82, § 114 (former testimony of
a subscribing witness, in certain actions, admis-
sible on his death) ; Mass. Pub. St. 1882, c. 212,
§ 41, Rev. L. 1902, c. 217, § 49 (a witness'
deposition before a magistrate may be read " if
he is unable to attend at the time of the trial, by
reason of his death, insanity, or any infirmity, or
if he is absent from the State so that he cannot be
compelled to attend by subpojna or attachment");
Miss. Annot. Code 1892, § 253 (testimony of
the deceased mother before a justice on a bas-
tardy complaint, admissible on the trial) ; Mmit.
C. C. P. 1895, § 2344 (like Cal. C. C. P. § 1316) ;
§ 3146, par. 8 (like ib. § 1870, par. 8) ; Nev.
Gen. St. 1885, § 2689 (testimony at the probate
of a will is admissible " in any subsequent con-
tests concerning the validity of the will, or of
the sufficiency of the proof thereof, if the
witness be dead, or has permanently removed
from this Territory ") ; § 4036 (testimony on
examination before a committing magistrate
may be used on the trial " when the witness is
sick, out of the State, dead, or when his per-
sonal attendance cannot be had in court ") ;
§ 3910 (testimony before a committing magis-
trate, reduced to writing and subscribed, is ad-
missible if it is "satisfactorily shown to the
Court that he is dead or insane, or cannot, with
due diligence, be found in the Territory");
N. J. Gen. St. 1896, Bastards, § 19 (the
mother's examination in a bastardy case, ad-
missible, if she is dead, or insane, or has left the
State) ; N. M. Comp. L. 1897, § 1982 (the tes-
timony of a will-witness, reduced to writing,
is admissible in future contests, ' ' if the attend-
ance of the witnesses cannot be procured ") ;
N. r. 0. C. p. 1877, § 830 (" where a party or
witness has died or become insane since the trial
of an action or the hearing upon the merits of a
special proceeding, the testimony of the dece-
dent or insane person, or of any person who is
rendered incompetent by the provisions of the
last section," as quoted ante, § 488, may be read
at a subsequent trial) ; § 2653 a (the testimony
of a will-witness at the probate is admissible at
the contest in the Supreme Court if he is dead,
out of the jurisdiction, or incompetent since
testifying ; see also § 2651) ; St. 1897, c. 104
(on appeal from the surrogate, the testimony
of witnesses who are now "out of the jurisdic-
tion, dead, or have become incompetent," is ad-
missible) ; C. Cr. P. 1881, § 8 (testimony at a
1901, P. C. § 765 (testimony at the preliminary
hearing before a magistrate is admissible if the
witness "is dead, or insane, or when such wit-
ness is shown by the return of the sheriff on a
subpoena duly issued for his appearance to be
out of the jurisdiction of the Court ") ; Cal.
0. C. P. 1872, § 1870, par. 8 (" testimony of a
witness deceased, or out of the jurisdiction, or
unable to testify," is admissible) ; § 1316 (testi-
mony at a will-probate is admissible in subse-
quent contests, ' ' if the witness be dead, or has
permanently removed from the State ") ; Com-
missioners' amendment of 1901 (quoted ante,
§1310, under the rule for attesting witnesses ;
it re-enacts C. C. P. § 1316 as § 1308, and sub-
stitutes a new section) ; P. C. 1872, § 686 (see
the quotation ante, § 1411 ; for the decisions
denying the application of this to former testi-
mony at a regular trial, see ante, § 1398) ; Conn.
St. 1895, May 7, a. 116 (testimony of a witness
who " is beyond the reach of the process of the
courts of this State or cannot be found, " is ad-
missible in civil causes " on a subsequent trial
of said case," by a sworn certified copy of court
stenographer's notes) ; Del. Rev. St. 1893, e. 33,
§ 4 deposition before a coroner, admissible, if the
witness is dead) ; c. 97, § IS (testimony before a
committing magistrate, admissible, if the wit-
ness is dead) ; D. C. Code 1901, § 1065 (if a
party " shall die or become insane or otherwise
incapable of testifying," his testimony at a for-
mer trial is admissible) ; Oa. Code 1895, § 5186,
Cr. C. § 1001 (admissible if the witness is " de-
ceased, or disqualified, or inaccessible for any
cause ") ; Ida. Rev. St. 1887, § 5312 (testimony
at the probate of a will ; like Cal. C. C. P.
§ 1316) ; Ml. Rev. St. 1874, o. 148, § 7 (after
probate of a will in the county court, and on
trial by jury in the circuit court, " the certificate
of the oatli of the witnesses at the time of the
first probate shall be admitted as evidence "; com-
pare the eases cited ante, § 1303, post, § 1417) ;
Jfiid. Rev. St. 1897, § 1004 (the written exami-
nation of the complainant in bastardy, usable
"to sustain or impeach the testimony of such
witness") ; § 1008 (on the death of the com-
plainant in bastardy, her written examination
before the justice " may be read in evidence ") ;
§ 2831 (recorded testimony at the probate of a
will, admissible in a controversy about lands
devised, if the witnesses " are dead, out of the
State, or have become incompetent " since pro-
bate) ; Kan. Gen. St. 1897, c. 110, § 22 (testi-
mony before a probate court, admissible on the
trial of a contest in the district court, if the
witness is out of the jurisdiction, or dead, or has
become incompetent since probate) ; Ky. Stats.
1899, § 4643 (official report is usable in the trial
Court's discretion " where the testimony of such
witness or witnesses cannot be procured ") ; La.
Rev. L. 1897, § 1439 (testimony at a fire in-
quest, admissible, apparently nnconditionally) ;
C. Pr. 1894, § 586 (" All the testimony taken
in writing in the parish court shall be used as
1782
§§ 1395-1418] STATUTES FOR FOEMEE TESTIMONY.
§ 1414
§ 1414. Proof of Unavailability of Witness. The proponent of the former
testimony or the deposition is of course ordinarily the party to prove the
necessity of resorting thereto in consequence of the witness' unavailability in
person. Where former testimony is offered, no difficulty arises in applying
this principle. But where a deposition is offered, it is usually the case that
the proponent, in applying for authority to take the deposition, has already
had occasion to make proof of the same cause as that now alleged by him to
prevent the witness' non-attendance. In such cases — chiefly, illness, absence
from the jurisdiction, and residence beyond a certain distance — must the
proponent show at the trial that the cause upon which the taking was author-
ized still continues as a reason for non-attendance ? On principle, he must,
for the admissibility of the deposition depends on the existence of that cause
and the question is for the iirst time before the trial Court for determination.^
Nevertheless, it is practically desirable and proper, where the cause for tak-
ing was a probably permanent one — for example, residence without the
limits — to presume that it continues, and to leave it to the opponent to
show (if such is the case) that the cause has ceased.^
commitment is admissive against the accused,
in case the witness is dead, insane, or cannot
with due diligence be found in the State) ;
§ 864 (bastardy ; the mother's testimony on
examination before the magistrate is admissible
if she is dead or insane) ; N. C. Code, 1883,
§ 11.57 (examinations taken by a committing
magistrate are admissible if the deponent is
" dead, or so ill as not to be able to travel, or by
procurement or connivance of the defendant
liath removed from the State, or is of unsound
mind ") ; Oh. Rev. St. 1898, § 5242 a (former
testimony is admissible if the witness is dead,
beyond the jurisdiction of the Court, insane,
unable "through any physical or mental in-
firmity" to testify, or "has been summoned
but appears to have been kept away by the ad-
verse party," or " cannot be found after diligent
search ") ; § 5628 (in bastardy proceedings, the
testimony of the deceased mother before the
magistrate is admissible) ; § 5863 (the testi-
mony of a witness at a will-probate is receivable
on the trial if the witness is dead or ont of the
jurisdiction or has become incompetent) ; OH.
Stats. 1893, § 1194 (testimony at a will-probate
is admissible "in any subsequent contests or
trials concerning the validity of the will, or the
sufficiency of the [iroof thereof, if the witness be
dead, or has permanently removed from this
Territory") ; Or. C. C. P. 1892, § 706, par. 8
(like Cal, C. C. P. § 1870, par. 8) ; St. 1889,
Feb. 25, § 5 (official reporter s transcript of tes-
timony, admissible as a witness' deposition "in
the cases mentioned in § 829 of the C. C. P.") ;
Pa. St. 1887, Pub. L. 158, § 3, P. & L. Dig.,
"Witnesses, § 6 (testimony in criminal proceed-
ing is admissible if the witness "die, or be out
of the jurisdiction so that he cannot be effect-
ively served with a subpoena, or if he cannot be
found, or if he become incompetent to testify
for any legally sufficient reason") ; S. D. Stats.
1S99, § 6904 (testimony at a will-probate ; like
1783
Okl. Stats. § 1194) ; Tex. Eev. Civ. Stats. 1895,
§ 1908 (testimony at a will-probate is usable
" on the trial of the same matter in any other
court when taken there by appeal or otherwise ") ;
C. Or. P. 1895, § 814 (depositions befoi'e an ex-
amining court or jury of inquest are admissible
on the same conditions as depositions de bene,
set forth ante, § 1411) ; Utah Rev. St. 1898,
§§ 3475, 5013 (official stenographer's report may
be read when the witness " shall die or be be-
yond the jurisdiction of the court") ; § 4513
(committing magistrate ; like Cal. P. C. § 686) ;
§ 3793 (probate testimony ; like Cal. C. C. P,
§ 1316) ; Wash. C. & Stats. 1897, § 6113 ("In
all trials respecting the validity of a will, if nny
subscribing witness be deceased, or cannot be
found, the oath of such witness, examined at
the time of probate, may be admitted as evi-
dence ") ; Wyo. Eev. St. 1887, § 3062 (on the
contest of a will in the district court, the testi-
mony at the probate of witnesses who "are out
of the jurisdiction of the court, dead, or have
become incompetent since the probate," is ad-
missible) r St. 1891, c. 70, ch. HI, § 4 (in pro-
bate trials, the former testimony of an attesting
witness is receivable if he "be dead, has per-
manently removed from the State, or is other-
wise incompetent ") ; St. 1895, c. 96, § 5 (a
deposition taken in a criminal case may he read,
" should the witness fail to appear at the hear-
ing or trial ").
^ 1839, Weguelin v. Weguelin, 2 Curt. Eccl.
263 (deposition of one in danger of death ; new
affidavit of illness required at trial) ; 1825, Read
w. Bertrand, 4 Wash. C. 0. 559 (similar).
2 1859, Nevan v. Koup, 8 la. 207 (the de-
ponent had stated that he was a non-resident
but intended to be present if alive and well ;
held, admissible, " unless it is shown that the
witness is present in court ") ; 1878, Cook v.
Blair, 50 id. 128 (deposition taken on the ground
of expected absence at the time set for trial, that
§ 1415 RIGHT OF CONFEONTATION. [Chap. XLV
§ 1415. If "Witness is Available for Testifying, Deposition is not TJsable.
No one has ever doubted that the former testimony of a witness cannot be
used if the witness is still available for the purpose of testifying at the pres-
ent trial. But, in the case of a deposition, authorized as it is by statute to
be taken for subsequent use in the trial, a notion has sometimes been formed
that the authorized taking involves an absolute authority to use the deposi-
tion, unconditionally and without showing the witness' unavailability at the
trial. Such a notion is entirely opposite to the orthodox principle of the
common law. A deposition was taken de bene esse, i. e. conditionally. The fun-
damental notion was that it was taken as a provision against the loss of the
evidence at the trial, so that if the witness was after all at the time of the
trial available for testifying, the deposition was not needed and was not
admissible. But for this principle, all the inquiries, above examined, as to
the sufficiency of death, illness, insanity, and the like, would have been
meaningless :
1839, Dr. Lushington, in Wegvelin v. Weguelin, 2 Curt. Eccl. 263 (affidavit of continu-
ing illness required) : " The very meaning of the phrase de bene esse implied that it was
conditional, and that the witness must be re-examined if capable."
1863,' Campbell, J., in Dunn v. Dunn, 11 Mich. 292 (appeal in Chancery from a decree
dismissing a divorce-bill, based on the verdict in an issue framed for a jury) : " The
deposition of E. L. was allowed to be read when she was present in Court. This was
also illegal. It is very well settled that the order usually made [in Chancery for trying an
issue by jury] that the depositions may be [there] read, is only designed to remove legal
ob]'ections which might exist by reason of the trial at law being technically a separate
proceeding, which, until our Courts were entrusted with jurisdiction both at law and in
equity, was in another tribunal. But trials before a jury of issues from Chancery are
governed by rules of courts of law, which do not permit depositions to be read when the
witness is present."
1892, Maxwell, C. J., in Everett v. Tidball, 34 Nebr. 803, 806, 52 N W. 816: " It is
the right of the adverse party to have the witness produced in court, unless for some of
the causes mentioned above he cannot be present. The appearance of the witness, his
manner of testifying, his apparent fairness or interest or bias in the case, are facts for the
consideration of the jury in judging of the credibility of the witness. In addition to
these, in case the witness testifies to a wilful falsehood, he may more readily be prose-
cuted for perjury where the parties reside and the facts are known than at some distant
point, perhaps in another State."
It is clear, therefore, that if the witness is present in the court-room at the
time when his deposition is offered, the deposition is inadmissible, because
there is no necessity for resorting to it.^ So also if the witness is within reach
time having afterwards been postponed ; ad- 1894, Hennessy ». Ins. Co., 8 Wash. 91, 93, 35
mitted, "unless the witness was in court"); Pac. 585. Contra: 1876, Bowie v. Findly, 55
1887, Sax V. Davis, 71 la. 406, 32 N. W. 403 Ga. 604 (after dismissal of the original case, the
(deposition of one temporarily disabled a year cause for the deponent's non-attendance must
before, the trial having been postponed nearly a be shown anew) ; 1894, Atkinson ii. Nash, 56
year ; the proponent required to show the wit- Minn. 472, 58 N. W. 39 (because the taking
ness' inability to attend); 1887, Sells v. Hag- officer was not authorized to certify to the cause),
gard, 21 Nebr. 357, 32 N. W. 66 (non-residence For the time of making objections to a depo-
of deponent presumed to continue to the time sition, see ante, §§ 18, 486.
of trial) ; 1897, Kaufman v. Caughman, 49 S. C. ^ To the express statutory provisions, ante,
159, 27 S. E. 16 ; 1831, Patapsco Co. v. South- § 1411, add the following ; 1877, Mobile L. Ins.
gate, 5 Pet. 616 (absence 100 miles away) ; Co. v. Walker, 58 Ala. 290 ; 1883, Humes i).
1784
i§ 1395-1418] WITNESS AVAILABLE IN COUET.
§ 1415
of the court-process and is not shown to be unavailable by reason of illness
or the like, the deposition is inadmissible.^ Where the witness, at some time
since trial begun and prior to the moment when his deposition is offered, has
been within reach of process, but is not at the precise moment, the deposition's
admissibility would seem to depend on whether the witness' absence is due
in any respect to bad faith on the proponent's part ; but here the rulings are
not harmonious.^ The opponent's waiver of cross-examination by failure to
attend {ante, §§ 1371, 1378) would not be a waiver of the right to require
the witness to be shown unavailable.*
A few Courts, ignoring the above principle, take the extraordinary attitude
of nullifying the conditional nature of a deposition, by admitting it even when
the witness is in the court-room.^
O'Bryan, 74 id. 77 ; 1896, Neilson v. E. Co., 67
Conn. 466, 34 Atl. 820 ; 1863, Dunn v. Dunn, 11
Micli. 292 (see quotation supra) ; 1893, Schmitz
V. E. Co., 119 Mo. 256, 271, 24 S. W. 472 ; 1896,
Benjamin v. R. Co., 133 id. 274, 34 S. W. 590
(but Ilia arrival in court after the deposition is
read does not require it to be struck out) ; 1896,
Barber Co. v. Ullman, 137 id. 643, 38 S. W.
458 ; 1871, Gerbauser v. Ins. Co., 7 NeT. 189 ;
1821, State v. McLeod, 1 Hawks 344 ; 1901,
Salley v. R. Co., 62 S. C. 127, 40 S. E. Ill ;
1901, Texas & P. R. Co. v. Watson, 50 C. C. A.
230, 112 Fed. 402 ; 1801, Doe v. Adams, 1 Tyl.
197.
2 1702, Anon., 2 Salk. 691 (prior examina-
tion, on a rule of Court, of a witness going to
sea ; if he has not gone when the trial comes on,
"he must appear; for the rule was made on
supposal of his absence ") ; 1847, Blagrave v.
Blagrave, 1 De G. & Sm. 252, 259 (the deponent
must be shown unavailable ; distinguishing
London v. Perkins, 1734, 3 Bro. P. C. 602,
where the ground of decision is obscure) ; 1885,
Baldwin v. R. Co., 68 la. 37, 25 N. W. 918 (a
statute making shorthand notes admissible, held
not to take away the necessity of " showing an
excuse for not producing the witness in court") ;
1895, Frankhouser v. Neally, 54 Kan. 744, 39
Pac. 700 ; 1894, Munro v. Callahan, 41 Nebr.
849, 60 N. W. 97 ; 1859, Morgan v. Halverson,
9 Wis. 271.
* 1864, Spear v. Coon, 32 Conn. 292 (ad-
mitted, where a non-resident deponent was
merely "a short time before the trial in the
place " of taker's residence) ; 1849, Hammock
V. McBride, 6 Ga. 178 (excluded, where the
witness " has resided within the county a suffi-
cient time previous to the trial for his personal
attendance to be coerced by process of subpoena,"
provided the taker had notice thereof) ; 1887,
"Waite V. Teeters, 36 Kan. 604, 14 Pac. 146
(deponent residing in another county and there-
fore not compellable to attend ; his temporary
presence in the county on the morning of trial,
without further showing as to the proponent's
ability to secure liim, not sufficient to exclude
the deposition) ; 1893, Eby v. Winters, 51 id.
777, 33 Pac. 471 (non-resident deponent, present
at the trial ; deposition admitted, neither the
proponent nor the Court being shown aware of
his presence until after the deposition was read,
and the deponent being afterwards placed on the
stand) ; 1894, McFarland v. Accid. Ass'n, 124
Mo. 204, 221, 27 S. W. 436 (the witness was
present during plaintifTs testimony in chief,
then went home ; the deposition was offered- in
rebuttal, though properly testimony in chief ;
admitted, no collusion being shown) ; 1896,
Benjamin v. R. Co., 133 Mo. 274, 34 S. W. 590
(mere presence in the jurisdiction, at the time of
trial, of one whose deposition was taken without
it, does not exclude) ; 1892, Everett v. Tidball,
34 Nebr. 803, 805, 52 K. W. 816 (witness tem-
porarily absent, but for some time before the
trial present in the county ; excluded) ; 1843,
Starksboro v. Hinesburgh, 15 Vt. 200 (witness
present at the time first set for trial, but not
available at the adjourned date when his testi-
mony was called for ; admitted) ; 1869, John-
son V. Sai-gent, 42 id. 195 (same).
* 1829, Carrington v. Cornock, 2 Sim. 567.
That a stipulation expressly waiving attend-
ance is constitutional, see post, § 2591.
1894, Western & A. R. Co. v. Bussey, 95
Ga. 584, 23 S. E. 207 (a deposition taken under
Code § 3893, admitted without regard to personal
inability to attend ; the witness here was present
in court) ; 1856, Bradley v. Geiselman, 17 111.
571 ; Frink v. Potter, ib. 408 (but these seem
inconsistent with Cook v. Stout, 47 id. 531,
cited ante, § 1408, note 6 ; the statutory word-
ing in this State is likely to mislead) ; 1898,
Edmonson v. R. Co., — Ky. — , 46 S. W.
679 ; 1899, Louisville v. Muldoon, — id. -- ,
49 S. W. 791 ; 1835, Phenix v. Baldwin, 14
Wend. 62, semble; 1850, Ford v. Ford, 11
Humph. 89, 90 (the opponent's statutory right
to summon deponents out of the county does not
prevent the deposition being received, subject
to cross-examination, when the witness is pres-
ent) ; 1903, Sherrod v. Hughes, — Tenn. — ,
75 S. W. 717 (under Code, § 5626, the deposi-
tion may be read by the taker, even though the
opponent has produced the witness in court ;
settling the prior conflict of rulings in this
State) ; 1861, Thayer v. Gallup, 13 Wis. 639,
541 (left to the trial Court's discretion).
1785
§ 1416 EIGHT OF CONFEONTATION. [Chap. XLV
§ 1416. Same : Rule not applicable (1) to Deposition of Party-Opponent,
or (2) to Deposition containing Self-Contradiction, but applicable (3) to
Deposition of Opponent's Witness ; and (4) to Former Testimony in Malicious
Prosecution. (1) The general principle that the witness must be shown
unavailable for testifying in court does not apply to a party's use of his party-
opponent's deposition (taken, as is usual, under statutes allowing in common-
law courts a process similar to a bill for discovery), — for the simple reason
that every statement of an opponent may be used against him as an admis-
sion without calling him {ante, § 1049); the opponent's sworn statement,
though called a deposition, is no less an admission than any other statement
of his :
1888, Brace, J., in Bogie v. Nolan, 96 Mo. 85, 91, 9 S. W. 14 : The Legislature . . .
did not intend to nan-ow the scope of inquiry ... by abrogating that ancient, well-rec-
ognized, and hitherto unquestioned rule of evidence that the declarations of a party to the
suit maybe given in evidence against him. . . . There can be no difference in the char-
acter of the evidence whether the declarations are made in the deposition of a party
taken in his own case then on trial, his deposition taken in another case to which he was
a party, or taken as a witness in a case in which he was not a party and had no direct
interest. They are admissible in each case for the same reason, not as the deposition of
a witness under the statute, but as the declaration of a party to the suit." ^
But this allowance of the use of a party's deposition as an admission pre-
supposes that it is the party-opponent's ; a party's statements offered in
his own favor are of course not admissions, and hence there is no reason
why a party should be allowed to put in his own deposition instead of taking
the stand.^
(2) So also the use of a deposition to show in it a contrary statement of
the deponent, who has already testified on the stand, is allowable even
though the witness be present and available ; for the deposition is here used
not as substantive testimony (ante, § 1018), but only as containing a state-
ment inconsistent with the same witness' testimony already given.^
(3) But the use of the deposition of an opponent's witness — i. e. a deposi-
tion taken by the opponent but not used by him — , which, as already noted,
is in other respects allowable {ante, § 1889), is not the use of an opponent's
admission. It is offered as the substantive testimony of that witness, whose
testimony has not as yet been heard. There is therefore no reason why one
1 Accord: 1887, Newell v. Desmond, 74 Gal. Va. 497, 504, 12 S. E. 1052, semUe (testimony
46, 15 Pac. 369 (under §§ 2021, 2032, plain- of a now disqualified opponent at a former
tifFs deposition taken by defendant may be read, trial) ; 1894, Denny v. Sayward, 10 Wash. 422,
though plaintiff be present) ; 1897, Adams «. 428, 39 Pac. 119.
Weaver, 117 id. 421, 48 Piic. 972 ; 1880, Moore 2 1896, State v. Oliver, 55 Kan. 711, 41 Pac.
V. Brown, 23 Kan. 269 ; 1865, Kritzer v. Smith, 954 (former testimony) ; 1896, Moore v. Palmer,
21 Mo. 296 ; 1858, Charleston i;. Hunt, 27 id. 14 Wash. 134, 44 Pac. 142 (even though orig-
34 ; 1882, Pomeroy v. Benton, 77 id. 64, 82 ; inally taken by opponent ; but semhle, if the
1885, Priest v. Way, 87 id. 16, 28 {contra); party had died or become incompetent, the dep-
1888, Bogie v. Nolan, 96 id. 85, 9 S. W. 14 osition of course would be admissible). Contra,
(overruling the preceding case ; see quotation but erroneous ; 1890, Johnson v. McDuffee, 83
supra) ; 1903, Profile & F. H. Co. ti. Bickford, Cal. 30, 23 Pac. 214.
— N. H. — , 54 Atl. 699; 1885, Schmick v. ' 1896, People ■;. Hawley, 111 Cal. 73, 43
Noel 64 Tex. 406, 408 ; 1891, Lee v. Hill, 87 Pac. 404.
1786
§§ 1395-1418] EULE NOT APPLICABLE. § 1416
party rather than the other should be allowed to resort to a deposition
without showing the deponent unavailable in person ; and this the non-
taker, as well as the taker, must do before using it:
1822, Tilghman, C. J., in Gordon v. Little, 8 S. & R. 532, 548: "The defendants say
that it was the business of the plaintiff [who took the deposition] to subpoena his own
witness, and therefore they did not do it. But in this they were wrong. The plaintiff
might not like the evidence, and, if he did not, he was under no obligation to summon
the witness. If the defendant thought this testimony favorable to himself, it was hia
business to secure it, by taking out a subpoena for the witness and endeavoring to pro-
care his personal attendance."
1854, Watkins, C. J., in Sexton v. Brock, 15 Ark. 345, 349: "It is argued that this
[filing for security] was also designed to make them common prop,erty, so as to entitle
either party to use them at pleasure. . . . But all depositions in common-law cases are
taken de bene esse, and can only be read as if the witnesses ' were present and examined
in open court,' — as, if it be shown the witness is dead, sick, or infirm, or residing with-
out the county, and the like, so as to excuse his personal attendance ; ,. . . [they are] but
a substitute, and an imperfect one, for the personal attendance of the witness when
that is impossible or inconvenient to be obtained. . . . Depositions are not in the first
instance original evidence, though a substitute for it ; the party taking it upon due no-
tice may be entitled, upon showing the death, infirmity, or absence of the witness from
the county, to read it. There is no reason, from the necessity of the case, why the op-
posite party, if he desired the testimony, could not have procured it by deposition or en-
forced the attendance of the witness. . . . [In this case, the plaintiff was wrongly allowed
to read a deposition, filed by the opponent,] without showing any compliance with the con-
ditions prescribed by statute or any effort to procure the attendance of the witnesses by
subpoena."
Distinguish, however, from the above principle, the use of a deposition or
afiBdavit of an opponent's witness used and adopted by the opponent on a
former occasion. So far as the opponent has thus by adoption made it his
own statement, it may be used as the opponent's admission (on the principle
examined ante, § 1075), and the deponent therefore need not be shown
unavailable.
(4) Where in malicious prosecution the former testimony of a witness on
the original prosecution is offered, the present principle is no less applicable
than in other cases, and the witness must be shown to be deceased or other-
wise unavailable.* The apparent exception, early established, that the now
defendants own former testimony could be used,® serves merely to " prove
* 1876, Fitch v. Murray, "Wood Man. 74, (L. C. J. Holt admitted the testimony of the
89 (admissible, if the witness is absent) ; 1865, now defendant's wife, given at the former trial,
Chapman v. Dodd, 10 Minn. 350, 357 (malicious she being now disqualified ; " for otherwise, one
prosecution; magistrate's report of the testimony that should be robbed, etc., would be tinder an
before him, excluded, the witnesses not being intolerable mischief; for if he prosecuted for
shown unavailable ; good opinion, by McMillan, such robbeiy, etc., and the party should at any
J.); 1830, Burt v. Place, 4 Wend. 591 (cited rate be acquitted, the prosecutor would be liable
infra) ; 1827, Eichards v. Foulke, 3 Oh. 52 (the to an action for malicious prosecution, without
testimony of other witnesses than the defendant, the possibility of making a good defence");
at the former trial, excluded, as being merely 1767, Buller, Trials at Nisi Prius, 19 ; 1810,
" secondary evidence "). Swift, Evidence (Conn.) 131; 1830, Burt v.
The objection of difference of parties and Place, 4 Wend. 591, 596, 601 (the witnesses not
issues [ante, § 1387) might also be raised ; but being deceased, the defendant was not allowed
the difference does not seem to be substantial. to prove the testimony delivered for him at the
" 1705, Johnson v. Browning, 6 Mod. 216 prior trial, as evidence of probable cause ; but
VOL. n. — 60 1787
§ 1416 EIGHT OF CONFRONTATION. [Chap. XLV
the rule " ; for at common law the now defendant would have been disquali-
fied as a witness in the second trial, and thus he would be unavailable as a
witness (on the principle of § 1409, ante). It has, however, sometimes been
thought that the former testimony might be used (without accounting for
the witnesses) not as testimony of the facts recited in it, but as evidence of
the grounds of belief of the then prosecutor, now the defendant (on the prin-
ciple of § 258, ante) .® It is true, in some varieties of the action for malicious
prosecution, that this use would be correct.'^ But ordinarily the theory of it
is not applicable, because testimony delivered after prosecution begun cannot
be said to have served as probable ground for a belief which must have
existed before prosecution begun.^
§ 1417. Same : Exceptions to the Rule for (1) Chancery and analogous Pro-
ceedings, (2) Commissions by Dedimus Potestatem, (3) Depositions in Fer-
petuam Memoriam ; (4) WUl-Probate ; (5) Bastardy Complaints. (1) According
to the traditional chancer^/ practice, all evidence was taken and presented to
the Court of Chancery in the form of written depositions ; there was no re-
quirement of viva voce testimony on the trial. The chancery practice is not
within the present purview. But in a few; jurisdictions such a practice appears
to have been introduced by statute, in certain cases, for common-law trials.^
So far as such a procedure has been expressly sanctioned by statute, it is
clear that the trial may proceed upon written depositions without showing
the deponent unavailable in person. But certainly this effect should not
be judicially attributed to a statute by mere implication. The fragmentary
introduction of such chancery practice into a common-law trial is an un-
fortunate measure. The impropriety of the unfair discrimination and of the
" where the prosecution alleged to have been viction without probable cause, the testimony
malicious was for a crime, and the defendant was before the magistrate, being material, may be
a witness, " he would be allowed to " show what proved; whether without producing the wit-
was his testimony ") ; 1798, Moody v. Pender, nesses, not decided).
2 Hayw. N. C. 29 ("defendant's former testi- « 1844, Newton v. Rowe, 1 C. & K. 616
mony admitted, on the ground of necessity ; (libel in charging the plaintiff with falsely and
otherwise, perhaps, "had any other witness sworn maliciously accusing R. ; plea, truth ; testimony
to the same facts and circumstances"); 1813, before the magistrates, held not material for
Scott V. Wilson, Cooke Tenn. 315 (the testi- the defendant to show the plaintiff's malice) ;
mony of the now defendant, given at the former 1865, McMillan, J., in Chapman v. Dodd, 10
trial, may be admitted, even concerning facts Minn. 350, 358 (" The testimony delivered upon
not "alone confined to his knowledge," on the the hearing could not have influenced the ac-
ground of necessity). Presumably this excep- tion of the prosecution in commencing the pro-
tion would no longer be law, the defendant ceedings, for at that time it had no existence ') ;
being now a qualified witness. 1827, Richards v. Foulke, 3 Oh. 52 (the ques-
* 1903, Kansas & T. Coal Co. v. Galloway, tion to be decided being that of probable cause,
— Ark. — , 74 S. W. 521 (malicious prose- " this the jury were required to decide, not upon
cution by arresting for contempt of an injunc- the evidence given before the justice, but upon
tion ; testimony of E. in the contempt proceed- the facts of the case and the defendant's knowl-
ings allowed to be proved without calling E. ; edge of these facts ") ; 1834, Huidekoper v.
good opinion by Bunn, C. J.) ; 1849, Bacon v. Cotton, 3 Watts 56, 58.
Towne, 4 Gush. 217, 238 (malicious prosecution No doubt, when sometimes it has been said
before magistrate ; testimony before the magls- that the ' ' evidence " in the first trial is also ad-
trate admitted, because " the knowledge that missible in the second one, it was merely meant
he wonld so testify might have been one of the that the facts to be proved would be the same in
grounds on which the defendants made their the latter ; e. g. 1902, Perkins ». Spaulding, 182
complaint"). Mass. 218, 65 N. E. 72.
' 1814, Burley v. Bethnne, 5 Taunt. 580 (in ^ Ante, § 1415, note,
an action against a magistrate for malicious con-
1788
§§1395-1418] EULE NOT APPLICABLE. §1417
underlying policy of the typical statutes of this class has already been noticed
{ante, § 1407).
(2) Under the Federal statutes ^ a deposition taken de bene esse cannot be
used unless the witness is shown to be unavailable in one of the specified
ways.^ Even under the Act of 1892 (ante, § 1381) empowering Federal
Courts to order the taking of depositions " in the mode prescribed by the laws
of the States in which the courts are held," * it is ruled that, even in a State
ill which depositions may be used without showing the witness unavailable,
such a showing must still be made according to the Federal statute.® But
the depositions under the dedimus potestatem clause * stand upon a different
footing. These are taken under a commission, supposed to be grantable
wherever it is necessary to prevent a failure or delay of justice ; and, when
once allowed to be taken, are unconditionally admissible ; so that there is no
need at the trial to account for the witness as unavailable.'' It does not ap-
pear that this anomalous theory is applied in other jurisdictions to dedimus
potestatem depositions.
(3) Depositions in perpetuam memoriam ought to stand on precisely the
same footing as other depositions, i. e. they are taken conditionally, to be used
at the trial only in case the witness is not available.* Yet the contrary view
has occasionally been hinted at judicially ,8 or sanctioned by statute.^"
(4) In some States the statutes providing for a jury trial or chancery hear-
ing, on appeal from the preliminary probate of a will in the probate court,
are so worded that the formal (and usually ex parte) testimony of the sub-
scribing witnesses delivered and reduced to writing at the preliminary probate,
is receivable absolutely at the later trial, i. e. without accounting for the wit-
nesses' absence.^^ But this is anomalous and accidental.
' U. S. Rev. St. 1878, § 865 ; quoted ante, brought viva voce upon the trial, but only to be
§ 1411. used in case of death before the trial, or age or
' 1831, PatapscoOo. w. Southgate, 5Pet. 616 ; impotence [preventing attendance], or absence
and the cases in note 5. out of the realm at the trial"); 1720, Dorset v.
* St. 1892, 0. 14, Mar. 9, 27 Stats. 7 ("in Girdler, Finch Free. Oh. 532 ("these deposi-
addition to the mode of taking the depositions tions cannot be made use of so long as the wit-
of witnesses in causes pending at law or equity nesses are living and may be had to be examined
in the district and circuit courts of the United before a jury"); 1732, Benson v. Olive, 2 Stra.
States, it shall be lawful to take depositions 919 ; 1817, Morrison v. Arnold, 19 Ves. Jr. 672 ;
or testimony of witnesses in the mode prescribed 1856, Booker v. Booker, 20 Ga. 777, 780.
by the laws of the State in which the courts are ' 1766, Apthorp v. Eyres, 1 Quincy 229
held"). (by three judges to two ; but chiefly because it
"> 1895, Mulcahey v. E. Co., 69 Fed. 172; was treated as an affidavit and the issue was not
1899, Texas & P. K. Oo. v. Wilder, 35 C. C. A. to a jury).
105, 92 Fed. 953 (depositions taken in a State i" E. g. in Michigan, cited ante, § 1412.
Court cannot be used on removal in a Federal " The statutes are placed ante, §§ 1411,
Court unless the witness is unavailable under 1413 ; some of the rulings applying them are as
§ 865, in spite of St. March 9, 1892). Compare follows: 1851, Eigg v. Wilton, 13 111. 15, 18 ;
the ruling cited in § 1381, ante. 1897, Harp v. Parr, 168 id. 459, 48 N E. 113
« U. S. Kev. St. 1878, § 866, quoted ante, (the statute applied ; but here one subscribing
§ 1411. witness was called at the contest in chancery) ;
' 1819, Sergeant v. Biddle, 4 Wheat. 511 ; 1899, Entwistle ». Meikle, 180 id. 9. 54 N. E.
1875, Jones v. E. Co., 3 Sawyer 527, Deady, J. 217 ; 1903, Baker «. Baker, 202 id. 595, 67 N. E.
Compare Ehoades v. Selim, 4 Wash. C. C. 724 410 (at the chancery contest, the "certificate of
(1827), under a rule of Court. the oath" of witnesses at the first probate may
"161 8-19, Order in Chancery, No. 73, Bacon, be either in affidavit form or in the form of ques-
L. C. ("No benefit shall be taken of the depo- tions and answers),
sition of such witnesses in case they may be
1789
§ 1417 EIGHT OF CONFRONTATIOK [Chap. XLV
(5) Similarly, the mofclier's testimony before the magistrate in a bastardy
complaint is sometimes by statute made absolutely receivable at the later and
regular trial ; ^^ though most statutes expressly condition this on the mother's
disease or insanity.
§ 1418. Anomalous Jurisdictions in 'wUcb No Necessity suffices to admit.
There may be jurisdictions in which no cause whatever of unavailability will
suffice to admit a deposition or former testimony. The reasons for this have
already been noted, but may here be summarized. (1) So far as the consti-
tutional provision securing the right of confrontation to an accused person is
held, as it erroneously is in some jurisdictions {ante, § 1398), to preclude the
use of depositions or former testimony by the prosecution, it is obvious that
no cause, even the witness' death, will suffice to admit them. (2) So far as
the statute has not empowered the Court to order the taking of depositions
in a given class of cases, a deposition taken in such a case is unlawfully
taken and has therefore no legal existence {ante, § 1401) ; such a deposition
therefore is inadmissible.^
" ISll.Walkeri;. State, 6Blaokf. 1, 4 ; 1874, trial, because not expressly authorized by statute;
Hoff i>. FLsher, 26 Oh. St. 8 ; and cases and the opinion ignores the common-law practice,
statutes cited ante, § 1413. ante, § 1375 ; this is in truth not a deposition at
Compare the rule about accusations in travail all, but testimony at a foniier trial) ; 1886, Kae-
(anle, § 1141). lin v. Cora., 84 Ky. 354, 367, 1 S. W. 594 (de-
^ 1899, State w. Potter, — Ida. — , 57 Pac. position, taken by the accused, of a person
431 (depositions taken on preliminary exam- abroad, not authorized by statute ; excluded),
ination by the State, not to be used at all at the
1790
§§ 1420-1426]
BOOK I, PAET II, TITLE II.
§ 1420
Sub-title II: EXCEPTIONS TO THE HEARSAY RULE.
INTRODUCTORY.
CHAPTER XLVL
§ 1420. Principle of the Exceptions to the
Hearsay Rule.
§ 1421. First Principle : Necessity.
§ 1422. Second Principle : Circumstantial
Guarantee of Trustworthiness.
§ 1423. Incomplete Application of the Two
Principles.
§ 1424. 'Witness-Qualifications, and other
Eules, also to be applied to Statements admitted
under these Exceptions.
§ 1425. Outline of Topics for each Excep-
tion.
§ 1426. Order of the Exceptions.
§ 1420. Principle of the Hzceptions to the Hearsay Rule. The purpose
and reason of the Hearsay rule is the key to the exceptions to it. The theory
of the Hearsay rule {ante, § 1362) is that the many possible sources of in-
accuracy and un trustworthiness which may lie underneath the bare untested
assertion of a witness can best be brought to light and exposed, if they exist,
by the test of cross-examination. But this test or security may in a given
instance be superfluous ; it may be sufficiently clear, in that instance, that
the statement offered is free from the risk of inaccuracy and untrustworthi-
ness, so that the test of cross-examination would be a work of supererogation.
Moreover, the test may be impossible of employment — for example, by
reason of the death of the declarant — , so that, if his testimony is to be used
at all, there is a necessity for taking it in the untested shape. These two
considerations — a Circumstantial Guarantee of Trustworthiness, and a
Necessity for the evidence — may be examined more closely, taking first the
latter.
(1) Where the test of cross-examination is impossible of application, by
reason of the declarant's death or some other cause rendering him now un-
available as a witness on the stand, we are faced with the alternatives of
receiving his statements without that test, or of leaving his knowledge alto-
gether unutilized; and the question arises whether the interests of truth
would suffer more by adopting the latter or the former alternative. What-
ever might be thought of the general policy of choosing the former alterna-
tive without any further requirement, it is clear at any rate that, so far as in
a given instance some substitute for cross-examination is found to have been
present, there is ground for making an exception. The mere necessity alone
of taking the untested statement, instead of none at all, might not suffice ;
but if, to this necessity, there is added a situation in which some degree of
trustworthiness more than the ordinary can be predicated of the statement,
there is reason for admitting it as not merely the best that can be got from
that witness, but better than could ordinarily be expected without the test
of cross-examination. We thus come to consider the second essential
element.
1791
§ 1420 EXCEPTIONS TO THE HEAESAY RULE. [Chap. XLVI
(2) There are many situations in which it can be easily seen that such
a required test would add little as a security, because its purposes had been
already substantially accomplished. If a statement has been made under
such circumstances that even a sceptical caution would look upon it as trust-
worthy (in the ordinary instance), in a high degree of probability, it would
be pedantic to insist on a test whose chief object is already secured. Sup-
posing that such a situation exists, the statement could properly be received,
. especially if no other evidence from that person was now available. The law
of evidence properly assumes that such situations can and do exist, and the
exceptions to the Hearsay rule are concerned with defining them.
A perception of these two principles and their combined value has been
responsible for most of the Hearsay exceptions. Each exception, to be sure,
has come into existence and been maintained independently and amid con-
siderations peculiar to itself alone. There has been no comprehensive carry-
ing-out of a system of principles. Yet the results may be co-ordinated under
those two heads. There has rarely been any judicial summing-up of the
principles ; yet their existence has been fully perceived and often judicially
stated. The following utterances illustrate this recognition :
1876, Jessel, M. R., in Sugden v. St. Leonards, L. R. 1 P. D. 154 : "So inconvenient
was the law upon this subject, so frequently has it shut out the only obtainable evidence,
so frequently would it have caused a most crying and intolerable injustice, that a large
number of exceptions have been made to the general rule. . . . Now I take it the prin-
ciple which underlies all these exceptions is the same. In the first place, the case must
be one in which it is difficult to obtain other evidence ; for no doubt the ground for ad-
mitting the exceptions was that very difficulty. In the next place, the declarant must
be disinterested ; that is, disinterested in the sense that the declaration was not made in
favor. of his interest. And, thirdly, the declaration must be made before dispute or liti-
gation, so that it was made without bias on account of the existence of a dispute or
litigation which the declarant might be supposed to favor. Lastly, and this appears to
me one of the strongest reasons for admitting it, the declarant must have had peculiar
means of knowledge not possessed in ordinary cases.^ Now all these reasons exist in tes-
tifying both as to matters of public and general interest, and as to matters of pedigree,
and some, if not all of thera, exist in the other cases to which I have referred."
1810, Swift, C. J., Evidence, 121 : " The law has therefore very wisely rejected all such
evidence, excepting where it is impossible in the nature of things to obtain any other,
and where this is sufficient to establish the matter in question."
1811, Tilghman, C. J., in Garwood v. Dennis, 4 Binney 328 : " It is objected that,
however impressive the declaration of a man of character may be, yet the law admits the
word of no one in evidence without oath. The general rule certainly is so ; but subject
to relaxation in cases of necessity or extreme inconvenience."
1826, Ewing, C. J., in Westfield v. Warren, 8 N. J. L. 251 ; " The general rule of evi-
dence excludes all hearsay. From necessity and from the impracticability, in some in-
stances, of other proof, exceptions to this rule have been made."
1852, Johnson, C. J., in Cornelius v. State, 12 Ark. 804 (stating that hearsay lacks the
securities of oath and cross-examination) : " Where, however, the particular circum-
stances of the case are such as to afford a presumption that the hearsay evidence is true,
it is then admissible."
"• The learned judge, in this fourth element, edge-qualifications of every witness. This is
is referring merely to the requirement that the therefore not peculiar to the Hearsay exceptions
hearsay witness must possess the oidiuary knowl- (post, § 1424).
,1792
§§ 1420-1426] GENERAL PRINCIPLES. § 1422
1881, Loomis, J., in Southwest School District v. Williams, 48 Conn. 507: "The law does
not dispense with the sanction of an oath and the test of cross-examination as a pre-
requisite for the admission of verbal testimony, unless it discovers in the nature of the
case some other sanction or test deemed equivalent for ascertaining the truth." ^
§ 1421. First Principle : Necessity. The scope of the first principle may
be briefly indicated by terming it the Necessity principle. It implies that
since we shall lose the benefit of the evidence entirely unless we accept it
untested, there is thus a greater or less necessity for receiving it. The
reason why we shall otherwise lose it may be one of two. (1) The person
whose assertion is offered may now be dead, or out of the jurisdiction, or
insane, or otherwise unavailable for the purpose of testing. This is the
commoner and more palpable reason. It is found in the exception for Dying
Declarations and in the five ensuing ones. The principle is not always fully
and consistently carried out in the rules ; but the general notion is clear and
unmistakable, and it is acknowledged in these exceptions with more or less
directness and strictness. (2) The assertion may be such that we cannot
expect, again or at this time, to get evidence of the same value from the
same or other sources. This appears more or less fully in the exception for
Spontaneous Declarations, for Eeputation, and in part elsewhere. Here we
are not threatened (as in the first case) with the entire loss of a person's
evidence, but merely of some valuable source of evidence. The necessity is
not so great ; perhaps hardly a necessity, only an expediency or convenience,
can be predicated. But the principle is the same.
§ 1422. Second Principle : Circumstantial Guarantee of Trustworthiness.
The second principle, which, combined with the first, satisfies us to accept
the evidence untested, is in the nature of a practicable substitute for the
ordinary test of cross-examination. We see that under certain circumstances
the probability of accuracy and trustworthiness of statement is practically
sufficient, if not quite equivalent to that of statements tested in the conven-
tional manner. This circumstantial guarantee of trustworthiness is found
in a variety of circumstances sanctioned by judicial practice ; and it is
usually from one of these salient circumstances that the, exception takes its
name. There is no comprehensive attempt to secure uniformity in the de-
gree of trustworthiness which these circumstances presuppose. It is merely
that common sense and experience have from time to time pointed them out
as practically adequate substitutes for the ordinary test, at least, in view of
the necessity of the situation.
May we, however, generalize any further among the different exceptions
and find any more detailed principles involving the reasons why these circum-
stances suffice as substitutes? Though no judicial generalizations have
been made, there is ample authority in judicial utterances for naming the
following different classes of reasons underlying the exceptions:
2 Mr. Starkle (Evidence, I, 45), in 1824, was the first writer to state plainly the philosophy of
the Exceptions.
1793
§ 1422 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVI
a. Where the circumstances are such that a sincere and accurate state-
ment would naturally he uttered, and no plan of falsification be formed ;
h. Where, even though a desire to falsify might present itself, other con-
siderations, such as the danger of easy detection or the fear of punishment,
would probably counteract its force ;
c. Where the statement was made under such conditions of publicity that
an error, if it had occurred, would probably have been detected and corrected.
As to these, it may be said, first, it is not always that an exception is
founded merely on a single one of these considerations. Often it rests on the
operation, in different degrees, of two of them. For example, the exceptions
for Declarations of Mental Condition, Spontaneous Declarations, and Declara-
tions against Interest rest entirely on Eeason a ; while the exception for Decla-
rations about Family History (Pedigree) rests largely upon Eeason a, though
partly also on Eeason c. The exception for Dying Declarations rests entirely
on Eeason 6 (the fear of divine punishment). The exception for Eegular
Entries rests chiefly on Eeason b, though partly also on Eeasons a and c. The
exception for Official Statements rests chie'fly on Eeasons i and c, though
a also enters. Mixed considerations have thus often prevailed. Secondly,
the exceptions have been established casually in the light of practical good
sense, and with little or no effort (except in modern times) at generalization or
comprehensive planning. The Courts have had in mind merely to sanction
certain situations as a sufficient guarantee of trustworthiness. As elsewhere
in the development of Anglo-American law generally, they have not (until
recently) looked ahead, or behind, or about, to make comparisons and obtain
unity of theory. Nevertheless, in analyzing the notions on which the ex-
ceptions have proceeded, we may distinguish clearly the three separate types
of reason above set forth. This is no more than saying that the exceptions
are and were to that extent rational ; for wherever a reason is given for a
result, it is possible to analyze and classify the results according to the
nature of the reason.^
§ 1423. Incomplete Application of the Two Principles. These two prin-
ciples — Necessity and Trustworthiness — are only imperfectly carried out
in the detailed rules under the exceptions. It would be strange if it were
otherwise, in a legal system formed as ours is, partly on precedent and partly
on principle, at the hands of judges of varying disposition and training.
The two principles are not applied with equal strictness in every exception ;
sometimes one, sometimes the other, has been chiefly in mind. In one or
two instances one of them is practically lacking. Nevertheless they play
a fundamental part. It is impossible without them to understand the excep-
tions. In these principles is contained whatever of reason underlies the
exceptions. What does not present itself as an application of them is the
result of mere precedent, or tradition, or arbitrariness. It is the proper office
of an expounder of the law of evidence to note this element of living prin-
^ The judicial utterances illustrating the above reasons will be found under the several excep-
tions.
1794
§§1420-1426] .GENERAL PEINCIPLES. §1424
ciple, and to distinguish its applications from rulings which are merely
arbitrary. It is through the failure to do this strictly that a general appear-
ance of unreason and unpracticalness has been given to the Hearsay rule
and its exceptions. In the following expositions of the exceptions, the mode
of treatment will consist in clearly separating that which can be directly
placed to the credit of these two leading principles from that which remains
as mere precedent and tradition. It may be affirmed that this residuum is
on the whole decidedly a minor portion.
In making this separation, regard must strictly be had to the judicial utter-
ances. There should be no forcing, no infusion of that which cannot be found
in the authorities. The office of the commentator is to expound rules of law
as he finds them declared and enforced ; and, where he finds a rule without
a principle, to note this with equal fidelity. But this fidelity is wanting
where he neglects to distinguish between rules which rest on principle and
rules which do not. What the judges supply is the rule and its principle if
any. What the commentator is usually left to supply is a systematic analy-
sis and a comprehensive grouping ; and this must not merely be forgiven to
him, — it must be demanded of him.^
§ 1424. Witness-Qualifications, and other Rules, also to be applied to State-
ments admitted under the Exceptions. The Hearsay rule is merely an
additional test or safeguard to be applied to testimonial evidence otherwise
admissible. The' admission of hearsay statements, by way of exception to the
ru]e, therefore presupposes that the assertor possessed the qualifications of a
witness {ante, §§ 483-721) in regard to knowledge and the like. These qualifi-
cations are fundamental as rules of relevancy, and can never be dispensed
with.^ Thus these extrajudicial statements may be inadmissible because of
their failure to fulfil the ordinary rules about qualifications, even though they
meet the requirements of a hearsay exception. For example, in the Pedigree
Exception there are rules about membership in the family which rest solely
on the necessity of knowledge in the person whose statement is offered, —
i. e. a rule of Testimonial Qualifications. However, in applying these principles
to hearsay exceptions, special situations arise, and the rules that depend upon
merely the usual testimonial qualifications for witnesses on the stand come
naturally in practice to be bound up with the rules about hearsay exceptions
as special details of those exceptions. In the following chapters, for clear-
* How little the judges can be expected to CI. & F. 8,5 (1844), three ; Mellor, .T., in L. E.
supply this element is seen in the present in- 2 Q. B. 326 (1867), two; Lord Blackburn, in
stance by the fact that until the Master of the 5 App. Cas. 623 (1880), and Brett, M. R., in
Rolls, Sir George Jessel, uttered his memorable 13 Q. B. D. 818 (1884), five; Marshall, C. J.,
generalization, in 1876 (ante, § 1420), nothing of in 7 Cranch 295 (1813), five; Skinner, J., in 17
the same sort had been given us by a judge. 111. 20 (1855) and McGowan, J., in 13 N. C.
Some dozen distinct exceptions are expounded in N. .s. 462, one in criminal cases,
the following chapters ; but upon eyen such an ^ 1881, Lord Blackburn,, in Dysart Peerage
elementary point as the number of the excep- Case, L. R. 6 App. Cas. 489, 504 : It is im-
tions there has been a total absence of correct possible to say that if a person said something,
judicial appreciation. The following enumera- and could not himself if alive have been per-
tions have been made: Mansfield, C. J., in mitted to give testimonj' to prove it, he can by
4 Camp. 401 (1811), two ; Best, C. J., in 2 Moo. dying render that statement admissible. I think
& E. 25 (1828), two; Lord Campbell, in 11 that is a self-evident proposition."
1795
§ 1424 EXCEPTIONS TO THE HEAESAY RULE. [Chap. XLVI
ness' sake and convenience of reference, these rules involving the application
of ordinary testimonial qualifications will be examined at the same time,
instead of being relegated to the general treatment of those principles. It
must be understood, however, that the principles involved have in their
nature nothing to do with the Hearsay rule.
For similar reasons, testimony received under a hearsay exception being
none the less testimony, the opponent may desire to discredit or to corrobo-
rate the declarant in the ways appropriate to discrediting or corroborating
an ordinary witness {ante, §§ 875-1144). The application of such principles
to hearsay exceptions can most conveniently be dealt with under the different
exceptions.
In the same way, the allowance of an exception to the Hearsay rule does
not of itself dispense with the application of the other Auxiliary Eules of
Policy {ante, § 1171), of which the Hearsay rule is only one. For example,
when a written entry is offered under an exception to the Hearsay rule, the
rule about Producing the Original of a Document {ante, § 1177) comes into
application and must be observed; in offering a dying declaration, the
rule of Completeness {post, § 2095) may come into play; and the rules of
Testimonial Preference {ante, §§ 1286, 1325, 1335, 1345) are often invoked
throughout the exceptions. These, with the rule of Authentication {post,
§§ 2129-2169) and the rule of Integration or Parol Evidence {post, § 2400)
are the auxiliary rules that find most frequent application to testimony
admitted under hearsay exceptions. For purposes of practical convenience,
their application here will be treated under the different exceptions, instead
of under the heads of the respective auxiliary rules.
§ 1425. Outline of Topics of each E:xception. Under each exception,
then, the general order of topics will be as follows:
a. The Necessity principle, and its applications in the Exception in hand ;
6. The principle of a Circumstantial Guarantee of Trustworthiness, and its
applications in the Exception in hand ;
c. The rules based on the independent principles of Testimonial Qualifica-
tions, Primariness, Authentication, and the like, as applied to the class of
statements admitted ; and, finally,
d. Arbitrary limitations and modifications not resting on any principle
whatever.
This order of treatment must occasionally be slightly varied, but it serves
as a general plan to be followed.
§ 1426. Order of the Exceptions. Owing to the mode of development of
the Hearsay rule {ante, § 1364), it is scarcely possible to predicate a definite
order of historical origin for the exceptions to the rule; we merely find that,
after the time that the rule comes to be established (the early 1700s), certain
classes of hearsay statements continued to be received as before. Eecorded
cases under some of these classes are found earlier in some instances than in
others, but this, for the above reason, does not entitle us to say that such
statements, as exceptions to the rule, are older in recognition than the
1796
§§ U20-1426] GENEEAL PRINCIPLES. § 1426
others. It can be said definitely that most of the exceptions were recog-
nized during the 1700s, and that the few remaining ones were not recognized
until the 1800s ; but that is all.
A more profitable order of arrangement is one based upon the differing
nature of the Necessity principle {ante, § 1421) as recognized in the different
exceptions. In several of them, the notion of Necessity is satisfied only
where the particular declarant is shown to be personally unavailable as a
witness, by reason of death or the like. In the others, the resort to the
hearsay statement is allowed without showing the personal unavailability of
the declarant at all. A grouping based on this radical difference seems to
be the only one in any way dictated by the nature of the exceptions ; and
within these two groups the further arrangement may be left to be determined
merely by convenience of orderly exposition.
The arrangement, then, is as follows, the first six forming the first group
above mentioned, and the seventh bridging the gap to the remaining seven,
which fall into the second group :
1. Dying Declarations; 2. Statements against Interest; 3. Declarations
about Family History ; 4. Attestation of a Subscribing Witness ; 5. Eegular
Entries in the Course of Business ; 6. Sundry Statements of Deceased Per-
sons ; 7. Eeputation ; 8. Official Statements ; 9. Learned Treatises ; 10. Sun-
dry Commercial Documents; 11. Affidavits; 12. Statements by a Voter;
13. Declarations of a Mental Condition ; 14. Spontaneous Exclamations.
1797
§ 1430
BOOK I, PAET II, TITLE II.
[Chap. XLVU
Sub-title II (continued) : EXCEPTIONS TO THE HEAESAY EULE.
Topic I: DYING DECEARATIONS.
CHAPTER XLVII.
§ 1430. History ; Statutes.
1. The Necessity Principle.
§ 1431. Scope of the Principle.
§ 1432. Rule Applicable in certain Criminal
Cases only.
§ 1433. Death in Question must be Declar-
ant's.
§ 1434.
§ 1435.
§ 1436.
Circumstances of the Death related.
Further Limitations rejected.
Foregoing Limitations Improper.
2. The Circumstantial Guarantee.
§ 1438. In general : Solemnity of the Situa-
tion.
§ 1439. Consciousness of the Approach of
Death ; Subsequent Confirmation.
§ 1440. Certainty of Death.
§1441. Speediness of Death.
§ 1442. Consciousness of Approaching Death ;
how determined.
§ 1443. Eevengeful Feelings ; Theological
Belief.
3. Testimonial Qualifications, and Other
Independent Rules of Evidence.
§ 1445. Testimonial Qualifications (Infamy,
Insanity, Interest, Recollection, Leading Ques-
tions, Written Declarations, etc.).
§ 1446. Testimonial Impeachment and Re-
habilitation.
§ 1447. Rule against Opinion Evidence.
Rule of Completeness.
Rule of Producing Original of a Docu-
§ 1448.
§ 1449.
ment.
§ 1460.
§ 1451.
§ 14S2.
Rule of Preferring Written Testimony.
Judge and Jury.
Declarations usable by Either Party.
§ 1430. History. This exception, as such, dates back as far as the first
half of the 1700s, — the period when the hearsay rule was coining to be sys-
tematically and strictly enforced (ante, § 1364) and at the same time certain
excepted cases were coming to be recognized and defined. The ruling of
Lord Mansfield in Wright v. Littler, in 1761 (post, § 1431), is generally taken
as the leading early case, though the notion that special trust may be im-
posed in deathbed statements was already long understood.'
The exception has in some jurisdictions been recognized by statutes.^
^ Compare Shakespeare's allusion, about
1595, quoted post, § 1438. The earliest reported
passages in trials seem to be the following : 1603,
Sir Walter Raleigh's Trial, Jardine Crim. Tr., I,
435 (the accused argues, " Besides, a dying man
is ever presumed to speak the truth " ) ; s. 0. 2
How. St. Tr. 18 (Serjt. Philips: "Nemo mori-
turus praesumitur mentiri"); 1678, Earl of
Pembroke's Trial. 6 How. St. Tr. 1309, 1335
(murder ; the deceased's statements after the
assault though apparently not made in conscious-
ness of approaching death, were received, the
coansel premising that "the sayings of a dying
man in snch circumstances are remarkable ") ;
1691, Lord Mohun's Trial, 12 id. 967, 975, 987
(murder); 1722, E. v. Reason, 16 id. 24ff'.; 1760,
Earl Ferrers' Trial, 19 id. 918, 936 (described by
counsel as "the declarations of the deceased,
while a dying man, and after the stroke is
given ") ; 1765, Lord Byron's Trial, ib. 1191,
1197, 1201, 1205 (the dying explanations of
Lord Byron's antagonist, Mr. Chaworth, in the
1798
duel) ; 1791, R. v. Dingier, Leach Cr. C. 300,
Gould, J. ; 1793, R. v. Callaghan, McNally,
Evidence 385 ; Downs, J. ; 1793, R. v. Trant,
ib. 385, Downs, J. ; 1800, R. v. Minton, ib. 386.
» Cal. C.C.P. 1872, § 1870, par. 4 ("in criminal
actions, the act or declaration of a dying person,
made under a sense of impending death, respect-
ing the cause of death," is admissible) ; Ga. Cr.
Code 1895, § 1000 (" made by any person in the
article of death, who is conscious of his condi-
ton, as to the cause of his death and the person
who killed him," admissible in evidence "in a
prosecution for homicide "); Mont. C. C. P. 1895,
§ 3146, par. 4 (like Cal. C. C. P. § 1870) ; Or.
C. C. P. 1892, § 706, par. 4 (like Cal. C. C. P.
§ 1870) ; Tex. C. Cr. P. 1895, § 788 ('■ The dying
declarations of a deceased person may be oSered
in evidence, either for or against a defendant
charged with the homicide of such deceased per-
son, under the restrictions hereafter provided.
To render the declarations of the deceased com-
petent evidence, it must be satisfactorily proved :
§§ 1430-1452] DYING DECLAEATIONS. § 1431
These, however, were seldom intended to alter in substance the details of the
common-law rule.^
1. The Necessity Principle.
§ 1431. Scope of the Principle. The requirements of this principle, as
generally accepted in the beginning, were simple. The notion was that, since
the witness had died, there was a necessity for taking his only available
trustworthy statements, — his dying declarations. The necessity, then, lay
simply in the death of the witness, and that was all that need be shown.
Conceivably, there might still be a necessity if the witness, though supposed
to be dying, had recovered and had since left the jurisdiction, but this case
had never occurred, and the question never arose.
By the 1800s, however, another interpretation of the Necessity principle
had arisen, and this came to prevail. It is artificial and inconsistent with
precedent and with itself, and its rules are now in fact nothing more than
arbitrary. Nevertheless, as they purport to be logical 'deductions from a
supposed principle, they must be treated as rational rules, and not as merely
arbitrary limitations.
1. Pirst, then, the original, orthodox, and only legitimate limitation
was that the witness whose declarations it was desired to use should be un-
available by death. This is amply shown by the cases up to the beginning
of the 1800s,i as well as by the treatises of the same period.^ In particular,
1, that at the tima of making such declaration same, in 1 Camp. 210 ; 1836, Stobart v. Dryden,
he was conscious of approaching death and be- 1 M. & W. 616 (Parke, B. : "Both then [coram
lieved there was no hope of recovery ; 2, that Lord Mansfield] and at the time of the Nisi
such declaration was voluntarily made, and not Prim trial before Mr. Justice Heath, an opinion
through the persuasion of any person ; 3, that prevailed (which is now properly exploded) that
such declaration was not made in answer to in- any declaration m extremis was admissible, on
terrogatories calculated to lead the deceased to the ground that the solemnity of the ooca.sion
make any particular statement ; 4, that he was was equivalent to a declaration on oath ").
of sane mind at the time of making the decla- * 1802, McNally, Evidence, 381, 386 ("In ex-
ration "). ception to the general rule that ' no evidence can
* For statutes altering specific details, see be receivedagainstaprisonerbutinhis presence,'
post, § 1432. it has been repeatedly determined and is un-
' 1761, Wright V. Littler, 3 Burr. 1244 (in questionably law, that on a trial for murder the
an action of ejectment, the genuineness of a will declarations of the deceased, after the mortal
being in issue, evidence was received by Mans- wound is given, conscious of approaching death,
field, L. C. J., that one of the subscribing wit- may be received in evidence against the prisoner,
nesses on his deathbed declared it a forgery, the although such declaration was not made in his
other judges concurring) ; 1769, Camden, L. C, presence. . . . In civil cases the rule of receiving
and Mansfield, L. C. J., in the Douglas Peerage as evidence the dying declaration of a person in
Case, 2 Hargr. Collect, jurid. 387, 389, 397 (re- extremis hath also been adopted, and on the same
ceiving "dying declarations " of Lady Douglas principle as in criminal cases"); 1810, Swift,
as to the paternity of the claimant, apparently Evidence, 125 ("In civil cases the rule of re-
on a general principle; "Would she have died ceiving as evidence the dying declarations of a
with a lie in her moutli and perjury in her right person in extremis has also been adopted, and on
hand ? ") ; 1784, K. v. Drummond, Leach Cr. L. the same principle as in criminal cases "). The
4th ed., 337 (on an indictment for robbery, the distinction had been suggested as early as 1743,
dying confession of another person, recently exe- by counsel in Craig dem. Annesley v. Anglesea,
cuted, that he was the true robber, was rejected 17 How. St. Tr. 1161 (ejectment) ; but the ab-
solely because of the deceased's incompetence as a sence of any settled distinction was in 1744 con-
cqnviot) ; ante 1805, Anon., cited in 6 East 195, ceded by Mr. Chute, arguendo in Omichund v.
per EUenborough, L. C. J., as occurring under Barker, 1 Atk. 38 (" A man, as he is just leaving
Heath, J. (action on a bond ; dying confession of the world, may be supposed to have a greater
forgery by a witness admitted); approved (1805) regard to truth"),
by EUenborough, L. C. J., uM supra, (1808) by the
1799
§ 1431 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVII
there is found no distinction between civil and criminal cases, or between
different kinds of criminal cases.
2. But at this point (as has more than once happened), the misconstrued
words of a treatise-writer, followed by a nisi prius decision or two, started a
heresy which in the next generation obtained full sway, and must now be
taken as orthodox. The language of Serjeant East seems to have been
the unwitting source of the heresy :
1803, Serjeant East, Pleas of the Crown, I, 353 : " Besides the usual evidence of guilt
in general cases of felony, there is one kind of evidence more peculiar to the case of homi-
cide, which is the declaration of the deceased, after the mortal blow, as to the fact itself,
and the party by whom it is committed. Evidence of this sort is admissible in this case
on the fullest necessity ; for it often happens that there is no third person present to be an
eye-witness to the fact ; and the usual witness on occasion of other felonies, namely, the
party injured himself, is gotten rid of." '
This language led to a change of practice in England, and its influence is
clearly to be traced in subsequent American cases. Finally, in 1860, a note
of Chief Justice Redfield, in his edition of Professor Greenleaf's treatise, gave
it the widest credit and led to its general acceptance :
1857, Ogden, J., in Donnelly v. State, 26 H". J. L. 617 : " Such declarations are received
as evidence from necessity, for furnishing the testimony which in certain cases is essential
to prevent the manslayer from escaping punishment. When a death-wound is inflicted in
secret, as was done in this case, no person can be expected to speak to the fact except the
victim of the violence."
1860, Redfield, C. J., in Greenleaf, Evidence, I, § 156, note : " It is not received upon
any other ground than that of necessity, in order to prevent murder going unpunished.
What is said in the books about the situation of the declarant, he being vii-tually under
the most solemn sanction to speak the truth, is far from presenting the true ground of the
admission. . . . And although it is not indispensable that there should be no other evi-
dence of the same facts, the rule is no doubt based upon the presumption that in the ma-
jority of cases there will be no other equally satisfactory proof of the same facts. This
presumption and the consequent probability of the crime going unpunished is unquestion-
ably the chief ground of this exception in the law of evidence." *
This orthodox heresy, with its narrow view of the necessity for such
evidence, has been applied with some attempt at consistency, the result of
which is the following limitations.
§ 1432. Rule Applicable in Certain Criminal Cases only. (1) The proceed-
ing in which the statements are offered may not be a civil case}
' It was natural, In a chapter on Homicide, 95 N. Y. 274 ; 1885, Bailing v. Com., 110 Pa.
to call special attention to these considerations ; 105, 1 Atl. 314.
but Mr. East did not and could not cite any au- "■ 1836, Stobart v. Diyden, 1 M. & W. 615 ;
thority for confining the evidence, to such cases, 1865, Daily v. E. Co., 32 Conn. 357; 1869,
and probably had no intention of making such Wooten v. Wilkins, 39 Ga. 223 ; 1886, East
an absolute statement. Tenu. Valley & G. E. Co. v. Maloy, 77 id, 237,
* The same view of the Necessity principle is 2 S. E. 941 ; 1869, Duling v. .Tohnson, 32 Ind.
illustrated in the following cases : 1835, State v. 155 ; 1896, Thayer v. Lombard, 165 Mass. 174,
Ferguson, 2 Hill S. C. 624 ; 1852, Campbell v. 42 N. E. 563; 1871, Brownell v. R. Co., 47 Mo.
State, 11 Ga. 375 ; 1855, Walston v. Com., 16 245 ; 1806, Jackson v. Kniffen, 2 John. 36 ;
B. Monr. 34 ; 1868, Marshall v. R. Co., 48 111. 1818, Wilson v. Boerem, 15 id. 286 ; 1854, Bar-
476 ; 1869, Morgan ». State, 31 Ind. 198 ; 1872, field v. Britt, 2 Jones L, 43 (overruling McFar-
Schell V. Stephens, 50 Mo. 374 ; 1881, State «. lane v. Shaw, 2 N. C. Law Repos. 105).
Wood, 53 Vt. 564 ; 1884, Waldele v. R. Co., The following cases are therefore practically
1800
§§ 1430-1452]
DYING DECLABATIONS.
§ 1433
(2) It must be a public prosecution for the specific crime of homicide!^
(3) It must be a prosecution, not merely for an act which has resulted in
fact in death, but for an offence involving legally the resulting death as a
necessary element. This limitation is a refinement evolved from the earlier
and simpler form of statement that "death must be the subject of the
charge." When the evidence was offered in a prosecution for attempted
abortion and like offences, where the woman's death resulted, the earlier form
of statement became capable of opposite interpretations. Generally the nar-
rower one has been adopted.^ Through this pedantic refinement much labor
has been wasted, and justice has often been hampered and defeated, for it is
obvious that the evidential need and value of the statement is precisely the
same, whatever the determination reached. We see here that the strictly
evidential question has been entirely lost sight of, and the exclusion or ad-
mission of the statements is made to depend arbitrarily on the terms of a
particular criminal statute. In at least three jurisdictions the aid of the
Legislature has been invoked to stop the further defiance of common sense
by the Courts over such monstrous trivialities.*
§ 1433. Death in question must be Declarant's. Again, not any death may
outlawed : 1806, Jackson v. Vredenburgh, 1
John. 159, 163 (wife's dying declarations as to
her husband's will ; left undecided, as to the
present point) ; 1859, People v. Blakely, 4 Park.
Cr. C. 184 (admitting a declaration that a note
had been signed ; " It is true this is said only
in regard to criminal cases ; but the rules of
evidence in criminal cases are in most respects
the same as in civil cases " ; here the decla-
ration was in any case admissible as against
interest).
See § 1141, ante (Corroboration by Similar
Statements) for the Delaware statute treating a
hastard's mother's declaration in travail as a
dying declaration.
* Excluded in the following cases : 1824, E.
V. Mead, 2 B. & C. 605 (perjury) ; 1830, R. v.
Lloyd, 4 C. & P. 233 (robbeiy) ; 1874, Johnson
V. State, 50 Ala. 459 (rape); 1876, State v.
Barker, 28 Oh. St. 583 ; 1866, Hudson v. State,
3 Coldw. 359 (robbery) ; 1871, Crookhara v.
State, 5 W. Va. 514 (assault with intent to
kill).
In some of the statutes cited ante, § 1430, the
scope is extended to "criminal actions " in gen-
eral, though the subject of the declaration must
be " the cause of death."
> 1822, R. V. Hutchinson, 2 B. & C. 608,
note, Bayley, J. (administration of drugs to a
pregnant woman) ; 1860, E. v. Hind, 8 Cox Cr.
300, Pollock, C. B. (attempt to procure a mis-
carriage) ; 1891, Com. v. Homer, 153 Mass.
344, 26 N. E. 872 ; 1900, State v. Meyer, 64
N. J. L. 382, 45 Atl. 779 (excluded on a charge
of abortion in which the woman's death was not
of the essence of the crime, though it affected
the punishment) ; 1874, People ». Davis, 56
N. Y. 95 ; 1878, State v. Harper, 36 Oh. St. 78 ;
1885, Railing v. Com., 110 Pa. 103, 1 Atl. 314.
Contra: 1881, Montgomery v. State, 80 Ind.
345 (Elliott, C. J. : "We conclude, where death
results from the unlawful attempt to produce an
abortion, that death is the subject of the enquiry
and that dying declarations are competent. If
we adopt any other view, we shall sacrifice prin-
ciple to a mere form of words. . . . We regard
the statute as clearly intending that death shall
be deemed a controlling element of the offence,
and in this respect it differs from the statutes of
New York and Ohio, as construed by the courts
of those states. ... If in reality the offence is
homicide and the subject of enquiry the manner
of the deceased's death, the settled rules of evi-
dence which prevail in such cases should be
enforced ") ; 1903, Seifert v. State, 160 id. 464,
67 N. E. 100 ; 1900, State v. Meyer, 65 id. 237, 47
Atl. 486 (even where abortion is a crime, though
the death did not result from that cause, the
woman's dying declaration is admissible ; ap-
proving Montgomery v. State) ; 1877, State v.
Dickinson, 41 Wis. 308.
The following are distinguishable : 1901,
Worthington v. State, 92 Md. 222, 48 Atl. 355
(causing abortion followed by mother's death ;
dying declaration admitted, because abortion
consists in killing the unborn child) ; 1894,
State V. Pearce, 56 Minn. 226, 233, 57 N. W.
652, 1065 (manslaughter by procuring abortion ;
admitted).
* Mass. St. 1889, c. 100 (dying declarations
of a woman dying from abortion, admissible in
prosecutions for the offence alleging death) ;
1893, Com. V. Thompson, 159 Mass. 56, 59, 33
N. E. 1111 (statute applied) ; N. Y. St. 1875,
c. 352 (similar); Pa. St. 1895, June 26, Pub.
L. 387, § 1 (similar, with peculiar and lengthy
wording ; the prosecution must first show the
declarant's "sound mind," and there must be
corroboration of the declaration).
1801
§ 1433
EXCEPTIONS TO THE HEAESAY RULE. [Chap. XLVII
be the subject of the charge ; the deceased declarant must be the person
whose death is the subject of the charge :
1875, Kingman, C. J., in State v. Bohan, 15 Kan. 418 : " Mr. Uedfield states that this
evidence is not received upon any other ground than that of necessity, in order to prevent
murder going unpunished. ... Its admission can he justified only on the gi'ound of abso-
lute necessity, growing out of the fact that the murderer, by putting the witness, and gen-
erally the sole witness of his crime, beyond the power of the Court by killing him, shall not
thereby escape the consequences of his crime. . . . Necessity, then, being the only gi-ound
on which such testimony can be admitted, it remains to be seen whether that necessity
exists so generally, or to so great an extent, where the death of any one else than the
declarant is the subject of the inquiry, as to justify the adoption of a rule admitting such
testimony"; and in a trial for the murder of T. A., declarations were rejected of W. A.,
shot at the same time with T. A., but surviving him a few houis.^
§ 1434. Circumstances of Death related. Finally, the declaration may not
concern any and all topics. It must concern the facts leading up to or caus-
ing or attending the injurious act which has resulted in the declarant's death ;
for it is only as to such facts that the supposed necessity for the statements
can exist.^ Here again there is prolific opportunity for quibbling.
>• Exchtded: 1893, Mora v. People, 19 Colo.
255, 262, 35 Pac. 179 (declarations by an accom-
plice resisting arrest) ; 1867, State v. Fitzhugh,
2 Or. 227, 232 (declarations of F., killed in the
same affray) ; 1873, Brown v. Com., 73 Pa. 329
(husband and wife murdered in different places
about the same time ; excluding at the trial for
the killing of the former the latter's declara-
tions) ; 1878, Poteete v. State, 9 Bax;t. 270
(third person killed in the same affray) ; 1894,
Radford v. State, 33 Tex. Cr. 520, 526," 27 S. W.
143 (husband and wife killed at the same time ;
on a charge of murder of the husband, the wife's
declarations excluded).
Admitted: 1837, K. v. Baker, 2 Moo. &
Kob. 53 (declarations of one poisoned at the same
time as the pei'son whose death was charged) ;
1871, State o. Wilson, 23 La. An. 559 (declara-
tions of J. S., shot at the same time as W. D.,
for whose murder the accused was on trial) ;
1859, State v. Terrell, 12 Rich. L. 329 (declara-
tions of one poisoned at the same time with him
whose death was the subject of the charge).
1 Ala. : 1849, McLean v. State, 16 Ala. 672,
676 ("whether he had forbade the prisoner
walking the road that morning, immediately
preceding the time that prisoner had shot him,"
admitted) ; 1860, Mosei). State, 35 id. 421; 1861,
Ben V. State, 37 id. 105; 1881, Reynolds v.
State, 68 id. 506 ; Cal. : 1883, People v. Fong Ah
Sing, 54 Cal. 253 ; 1881, People v. Taylor, 59
id. 640, 648 ; 1897, People v. Wong Chuey, 117
id, 624, 49 Pac. 833 ; Fla. : 1901, Clemmons v.
State, 43 Fla. 200, 30 So. 699 (the scope of the
declarations is the "res gestce"); Ga.: 1893,
Wilkerson v. State, 91 Ga. 729, 739, 17 S. E.
990 (killing of a husband by the wife's para-
mour ; the husband's declaration that he had
found them in adultery, admitted); 1898, Perry
V. State, 102 id. 365, 30 S. E. 903 (declarations
as to the relations of deceased and defendant
1802
sometime before, excluded); 1899, Bush v. State,
109 id. 120, 34 S. E. 298 (declarations as to
defendant's threats immediately preceding, ad-
mitted) ; Ind. : 1903, Seifert v. State, 160 Ind.
464, 67 N. E. 100 (death by abortion ; deceased's
declarations as to the defendant's incitement to
the act and furnishing of an instrument, ad-
mitted) ; la. : 1903, State v. McKnight, 119 la.
79, 93 N. W. 63 (declaration as to prior assaults by
the defendant on the deceased ; excluded) ; Kan. :
1899, State v. O'Shfca, 60 Kan. 772, 57 Pac. 970
(sundry statements as to prior relations of de-
ceased and defendant, excluded) ; Ky. : 1872,
Leiberi). Com., 9 BushlS; 1888, Peoples u. Com.,
87 Ky. 500, 9 S. W. 509, 810 ; 1899, Kedmond
K.Com., — id. — ,51 S. W. 565 (that he bad no
pistol, admitted) ; 1899, Baker v. Com., — id.
— , 50 S. W. 50 ("I want all you people to
swear the truth about this," excluded) ; Mo. :
1903, State v. Parker, 172 Mo. 191, 72 S. W.
650 ("I uever made any threats against him in
my life," "I never had a quarrel with him,"
excluded, though the defendant had introduced
evidence of recent threats by the deceased ; this
ruling is absurd, and disfigures the law of evi-
dence in Missouri, — the more emphatically be-
cause a new trial was ordered solely because of
the admission of these parts of the declaration ) ;
N. v.: 1902, People!!. Smith, 172 N. Y. 210,
64 N. E. 814 (declaration as to an occurrence
of three hours before the fatal injury, excluded ;
the ruling is nnsound); iV. C ; 1899, State v,
Jefferson, 125 N. C. 712, 34 S. E. 648 (declara-
tions about a precedent quarrel, etc., with defend-
ant, whom deceased did not recognize at time of
shooting, excluded) ; Or. : 1874, State v. Gar-
rand, 5 Or. 216, 219; S. G.: 1895, State v.
Petsch, 43 S. C. 132, 20 S. E. 993 (circumstan-
ces of pieceding dispute, beginning two weeks
before, semble, admissible) ; Wash. : 1897, State
V. Moody, 18 Wash. 165, 51 Pac. 356 (declai-a-
§§ 1430-1452] DYING DECLARATIONS. § 143G
§ 1435. Further Limitations rejected. The foregoing limitations, it will be
observed, are logically required by the principle as introduced by Serjeant
East {ante, § 1431). But two further and equally necessary results of it
have never been accepted :
(1) If the kiUing was not secret, or if other arid adequate testimony as to
the circumstances of the death is at hand, nevertheless the dying declara-
tion is admissible, even though in strictness it is not needed :
1898, Williams, J., in Com. v. Roddy, 184 Pa. 274, 39 Atl. 211: "[The defendant]
alleges that the Commonwealth was under no necessity to use the dying declarations, and
therefore had no right to use them. This rests on a misapprehension of the rule relat-
ing to their admission. The ' necessity ' to which the text-books and the cases refer is
not the exigency of any particular case, but a public necessity, which civilized society
feels the pressure of, for the protection of human life by the punishment of manslayers.
. . . [The evidence] is competent, not in a particular case, where the defendant could not
otherwise be convicted, but in all cases, no matter how ample the evidence of identifica-
tion through other sources may be." ^
This again shows the historical unsoundness of the spurious principle ; for,
had it originated in the reason given, the first and fundamental rule would
have been to distinguish between cases in which other evidence was or was
not attainable.
(2) Where the fact of the killing is conceded, the dying declaration, under
the spurious principle, is by hypothesis unnecessary ; nevertheless, this re-
sult is not recognized ; the declaration is admitted, even where the killing is
conceded.^
§ 1436. Foregoing Limitations Improper. All of the foregoing limitations,
except the death of the declarant, are unsound; and for the following
reasons :
(1) The orthodox policy of the Hearsay exceptions in general {ante, § 1421)
is to interpret the " necessity " for the evidence as meaning, not the absence
of other evidence from any source, but merely the absence of other evidence
from the same source, i. e. the declarant. (2) The spurious principle, even
so far as carried out, rests on wrong assumptions ; for it is of as much conse-
quence to the cause of justice that robberies and rapes be punished and torts
and breaches of trust be redressed as that murders be detected. The notion
that a crime is more worthy the attention of Courts than a civil wrong is a
traditional relic of the days when civil justice was administered in the royal
courts as a purchased favor, and criminal prosecutions in the king's name
were zealously encouraged because of the fines which they added to the
royal revenues. (3) The sanction of a dying declaration' is equally effica-
cious whether it speaks of a murder or a robbery or a fraudulent will ; and
the necessity being the same, the admissibility should be the same. (4) The
tion as to a prior threat of defendant, excluded) ; 782 ; 1883, Payne y. State, 61 Miss. 163 ; 1857,
Wyo. : 1903, Foley v. State, — Wyo. — , 72 Donnelly v. State, 26 N. J. L. 627.
Pac. 627 (statement as to (juarrels within the * 1886, State u. Saunders, 14 Or. 305, 12
past two weeks, excluded). Pac. 441. Contra: 1895, Saylor i>. Com., 97
1 Accord : 1881, Reynolds v. State, 68 Ala. Ky. 184, 30 S. W. 390.
506 ; 1903, Fuqua v. Com., — Ky. — , 73 S. W.
VOL. 11. — 51 1803
§ 1436 EXCEPTIONS TO THE HEARSAY EULE. [Chap. XLVII
spurious principle is recognized as unworkable in logical strictness, and,
when fairly carried out, comes into conflict with convenience and good
sense. (5) Its limitations are heresies of the present century, which have
not even the sanction of antiquity. They should be wholly abolished by
legislation.^
2. The Circumstantial Guarantee.
§ 1438. In general ; Solemnity of the Situation. All Courts have agreed,
with more or less difference of language, that the approach of death produces
a state of mind in which the utterances of the dying person are to be taken
as freed from all ordinary motives to mis-state. The great dramatist ex-
pressed the common feeling long before it was sanctioned by judicial
opinion.^ In the following passages will be found the now classical sen-
tences of the earlier English judges, as well as later ones pointing out
clearly how the situation supplies a circumstantial guarantee of accuracy
equivalent to that of the tests of oath and cross-examination:
1789, Eyre, C. B., in Woodcock's Case, Leach Cr. L., 4th ed., 500. "The general
principle on which this species of evidence is admitted is that they are declarations made
in extremity, when the party is at the point of death and when every hope of this world
is gone ; when every motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth ; a situation so solemn and so awful is con-
sidered by the law as creating an obligation equal to that which is created by a positive
oath administered in a court of justice."
18.S7, jlWereon, B., in Ashtori's Case, 2 Lew. Cr. C. 147 : " When a party comes to the
conviction that he is about to die, he is in the same practical state as if called on in a
court of justice under the sanction of an oath, and his declarations as to the cause of his
death are considered equal to an oath, but they are nevertheless open to observation. For,
though the sanction is the same, the opportunity of investigating the truth is very differ-
ent, and therefore the accused is entitled to every allowance and benefit that he may have
lost by the absence of the opportunity of more full investigation by the means of cross-
examination."
1858, Voorhies, J., in State v. Brunetto, 13 La. An. 45 : " The reason for the rejection
of hearsay evidence is that the party against whom it militates has not had the benefit
of a cross-examination, and because the declarant did not speak under the sanction of an
oath. An exception to this rule obtains in cases of dying declarations, the sense of im-
pending dissolution being considered as offering the necessary guarantees that the decla-
ration is in accordance with the truth."
1880, Mulkey,J., in Tracy v. People, 97 111. 106 : " There are certain guarantees of the
truth of dying declarations, growing out of the solemnity of the time and circumstances
under which they are made, which in contemplation of law are supposed to compensate
for the fact that they are not sanctioned by an oath and the party against whom they are
used has had no opportunity to cross-examine."
1896, Gray, J., in Peojile v. Craft, 148 N. Y. 631, 43 N. E. 80 (the trial judge told the
•■ Courts have here and there expressed dis- Melun: " Have I not hideous death within
satisfaction with these limitations : 1815, Tay- my view,
lor, 0. J., in McFarlnnd v. Shaw, 2 N. Car. L. Retaining hut a quantity of life,
Rppos. 105; 1S61, Davies, J., in Caujolle v. Which bleeds away, even as a form of wax
Ferric', 23 N. Y. 94 ; 1869, McCay, J. , in Wooten Resolveth from his dgnre 'gainst the fire ?
V. Willcins, 39 Ga. 223; 1873, Barrows, J., in What in the world should make me now deceive,
State V. Wagner, 61 Me. 195. Since I must lose the use of all deceit ?
^ About 1595 ; King John, V, 4 : Why should I then be false, since it is true
That I must die here and live hence by truth ? "
1804
§§ 1430-1452] DYING DECLARATIONS. § 1439
jury that a dying declaration " is given all the sanction -which the law can give to evi-
dence ") : " Dying declarations are of the nature of hearsay, or second-hand, evidence. . . .
It never has been, and it is not to be, supposed that they have all the guaranties which sur-
round evidence given under oath in a court of justice. ... It is, of course, true that such
declarations are considered to be equal to an oath taken in a coui't of justice ; but that is
because of the circumstances surrounding them when made. It is assumed that, being
made in extremity, when the party is at the point of death, and believes that all hope in
this world is gone, they have some guaranty for their truth, in view of the solemnity of
the occasion, or as much as an oath in court would have. But it is clear that their value
as evidence rests upon an assumption ; and hence it is that, while the law recognizes the
necessity of admitting such proof on a par with an oath in a court of justice, it does not
and cannot regard it as of the same value and weight as the evidence of a witness given
in a court of justice, under all the tests and safeguards which are there afforded for
discovering the truth, the object of judicial inquiry; ^ for there the accused has the oppor-
tunity of more fully investigating the truth of the evidence by the means of cross-exami-
nation, and the jury have the opportunity of observing the demeanor of the person -whose
testimony is relied upon. The power of cross-examination is quite as essential, in the
process of eliciting the truth, as the obligation of an oath ; and where the life or the
liberty of the defendant is at stake the absence of the opportunity for ci'oss-examination
is a serious deprivation ; which differentiates in nature and in degree the evidence of a
dying declaration from that which is direct and given upon the witness stand. . . .
Speaking in a strict sense, the sanction of an oath and the sanction of such declarations
are deemed to be the same, when the state of mind of the person is considered ; but,
as it was said by Baron Alderson, in Ashton's Case, ' though the sanction is the same,
the opportunity of investigating the truth is very different, and therefore the accused is
entitled to every allowance and benefit that he may have lost by the absence of the oppor-
tunity of more full investigation by the means of cross-examination.' " '
Such being the nature of the guarantee, certain rules follow from the
principle.
§ 1439. Consciousness of the Approach of Death ; Subsequent Confirma-
tion. As the guarantee consists in the subjective effect of the approach of
death, it is essential that the declarant should appear to have had a con-
sciousness of the approach of death:
1829, Park, J., in R. v. Pike, 3 C. & P. .598 : "We allow the declaration of persons
in articulo mortis to be given in evidence, if it appear that the person making such dec-
laration was then under the deep impression that he was soon to render an account to his
Maker."
1869, Ray, J., in Morgan v. State, 31 Ind. 199: "As this class of evidence forms an
exception to the general rule ; as there can be no cross-examination of the declarant ; as
the accused cannot often meet his accuser face to face ; and as there must of necessity
exist great danger of abuse ; it must clearly appear that the statements offered in e-vidence
have been made under a full realization that the solemn hour of death has come."
This consciousness must of course have been at the time of making the
' On this point, see also a good opinion in L. 329, 0'Neall,.J. ; 1864, Peoples. Sanchez, 24
Lambeth v. State, 23 Miss. 322, 358 (1852). Cal. 17, 24, Sanderson, C. J. ; 1868, Whitley v.
' Compare also : 1844, Forrest v. Kissam, 7 State, 38 Ga. 70, Hanis, J. ; 1871, Hill v. State,
Hill N. Y. 474, Forrest, Sen.; 1852, Campbell 41 Ga. 503, Lochrane, C. J.; 1871, Com. v.
V. State, 11 Ga. 374, Lumpkin, J.; 1855, Eoberts, 108 Mass. 301, Chapman, C. J. ; 1872,
Starkey v. People, 17 111. 20, 21, Skinner, J., State v. Williams, 67 N. C. 14, Rodman, J. ;
Scates, C. J. ; 1858, Godfrey v. State, 31 Ala. 1892, Mattox o. U. S., 146 U. S. 152, 13 Sup.
323, Eice, 0. J. ; 1859, State v. Terrell, 12 Rich. 60, Fuller, C. J.
1805
§ 1439 EXCEPTIONS TO THE HEAESAT RULE. [Chap. XLVII
declaration} It follows, on the one hand, that a subsequent change of this
expectation of death, by the recurrence of a hope of life, does not render
inadmissible a prior declaration made while the consciousness prevailed,^
although a repetition of the declaration during the subsequent inadequate
state of mind would not be admissible ; ^ and, on the other hand, that a dec-
laration made during an inadequate state of mind may become admissible
■ by a subsequent affirmance of it made when the realization of impending
death had supervened.*
§ 1440. Certainty of Death. It follows, from the general principle, that
the belief must be, not merely of the possibility of death, nor even of its
probability, but of its certainty. A less stringent rule might with safety
have been adopted ; ^ but this is the accepted one. The tests have been
variously phrased ; there must be " no hope of recovery " ; "a settled expec-
tation of death " ; " an undoubting belief." Their general effect is the same.
The essential idea is that the belief should be a positive and absolute one,
not limited by doubts or reserves ; so that no room is left for the operation
of worldly motives :
1851, Pigot, C. B., in R. v. Mooney, 5 Cox Cr. 318: " These declarations would not be
evidence unless she was under a clear impression that she was in a dying state."
1860, Willes, J., in R. v. Peel, 2 F. & F. 22 : "There must be a settled, hopeless ex-
pectation of death in the declarant.''
1869, R. V. Jenkins, L. R. 1 Cr. C. R. 192 ; Kelli/, C. B.: " The result of the cases is that
there must be an unqualified belief in the nearness of death, a belief without hope that
the declarant is about to die." Byles, J. : " The authorities show that there must be no
hope whatever."
1888, Beasley, C. J., in Peak v. State, 50 N. J. L. 222, 12 Atl. 701: " [The declarant]
shall have a complete conviction that death is at hand. . . . Death, shortly to ensue,
must be an absolute certainty, so far as the consciousness of the person making the dec-
laration is concerned." ^
* 1835, R. V. Spilsbury, 7 0. & P. 190; 19 How. St. Tr. 1205, 1206, semJfe; 1840, E. tf.
1875, Walker v. State, 52 Ala. 195 ; 1876, May Perkins, 9 C. & P. 395 (before thirteen judges.
V. State, 55 Ala. 41 ; 1857, Donnelly v. State, ^ Examples: Eng.: 1826, B.. v. Craven, 1
26 N. J. L. 618. Lew. Cr. C. 77 ("I am afraid, doctor, I shall
* 1881, R. V. Hubbard, 14 Cox Cr. 565 ; never get better " ; admitted) ; 1831, R. <;.
1894, States. Reed, 53 Kan. 767, 773, 37 Pac. Crockett, 4 C. & P. 544; 1829, R. v. Simp-
174 ; 1893, State v. Shaffer, 23 Or. 555, 560, son, 1 Lew. Cr. C. J.8 (" I fear I am in great
32 Pae. 545. danger" ; admitted); 1837, Ashton and Thorne-
3 1899, State v. Sadler, 51 La. An. 1397, 28 ley's Case, 2 id. 147 ("I think I will not
So. 390 (statement made the day after ad- recover," after a similar statement by the sur-
missible statements; excluded, because con- geon ; admitted) ; 1838, Errington's Case, ib. 149
sciousness of impending death was not shown to ("I think myself in great danger " ; excluded) ;
continue ; an illiberal ruling) ; 1896, Carver v. 1881, R. v. Osnian, 15 Cox Cr. 1, 3 ("a .settled
tr. S., 160 tr. S. 5.53, 16 Sup. 388. hopeless expectation of immediate death");
4 1872, R. u. Steele, 12 Cox Cr. 168, 170; 1888, E. v. Gloster, 16 id. 471, 476; U. S. :
1894, Johnson v. State, 102 Ala. 1, 16 So. 99 1902, Milton v. State, 134 Ala. 42, 32 So. 653 ;
(even though it is not read over to him) ; 1901, 1880, People v. Hodgdon, 55 Cal. 77; 1881,
Wilson V. Com., — Ky. — , 60 S. W. 400 ; People v. Taylor, 59 id. 648 ; 1882, People v.
1902, Smith v. Com., — id. — , 67 S. W. 32 ; Gray, 61 id. 175 ; 1893, Graves v. People, 18
1894, State v. Evans, 124 Mo. 397, 409, 28 Colo. 170, 176, 32 Pac. 63 (inadmissible, if
S. W. 8 ; 1901, State o. Garth, 164 id. 553, 65 there is an e.xpectation of recovery) ; 1870, Dixon
S. W. 275. Contra: 1901, Harper u State, 79 ». State, 13 Fla. 640 ; 1896, Lester v. State, 37
Miss. 575, 31 So. 195 (no authority cited). id. 382, 20 So. 232 (" no hope whatever," " en-
1 In the following cases a strong probability tirely without hope ") ; 1901, Green v. State, 43
only was required : 1765, Lord Byron's Trial, id. 552, 30 So. 798 ; 1902, Collins v. People, 194
1806
§§ 1430-1452] DYING DECLARATIONS. § 1442
§ 1441. Speediness of Death. It follows, also, that the expectation must
be of a speedy death. All men are mortal, and know it. An expectation of
ultimate but distant death is obviously, in experience, not calculated to pro-
duce that sincerity of statement which is desired. Nevertheless, no defini-
tion of time can be fixed ; the determination must vary with each case, after
all the circumstances are considered :
1829, Hulloch, B., in R. v. Van Butchell, 3 C. & P. 631 ; " A man may receive an in-
jury from which he may think that he shall ultimately ' never recover ' ; but still that
would not be sufficient to dispense with an oath."
1869, Byles, J., in R. v. Jenkins, L. R. 1 Cr. C. R. 193 : " In order to make a dying
declaration admissible, there must be an expectation of impending and almost immediate
death." i
But the actual period of survival after making the declaration is imma-
terial. The necessary element is a subjective one, — the declarant's expecta-
tion ; and the subsequent duration of life, whatever it may turn out to be,
has no relation to his state of mind when speaking:
1857, Pollock, C. B., in R. v. Reaney, 7 Cox Cr. 209, 212 : " In truth, the question does
not depend upon the length of interval between the death and the declaration, but on the
state of the man's mind at the time of making the declaration and his belief that he is in
a dying state."
Accordingly, there seems to be no case in which the time of survival was
deemed to exclude the declaration; and various periods have been passed
upon as not too long.^
§ 1442. Consciousness of approaching Death ; ho'w determined. In ascer-
taining this consciousness of approaching death, recourse should naturally be
III. 506, 62 N. E. 902; 1872, State v. Medli- cieut ; but " believed he would soon die," suffi-
cott, 9 Kan. 238 ; 1901, Worthington «. State, cient) ; 1896, Lester v. State, 37 Fla. 382, 20
92 Md. 222, 48 Atl. 355 ; 1781, Com. v. Rob- So. 232 ("imminent and inevitable"); 1893,
erts, 108 Mass. 301 ; 1896, People v. Beverly, U. S. v. Schneider, 21 D. C. 381, 404 ("speed-
108 Mich. 609, 66 N. W. 379 ; 1896, People v. ily ") ; 1895, Saylor v. Com., 97 Ky. 184, 30
Weaver, ib. 649, 66 N. W. 567 (" I make these S. W. 390 (" I shall not get well " ; excluded
statements in full view of my probable death " ; on the facts) ; 1898, State v. Ashworth, 50 La.
admitted); 1901, Harper v. State, 79 Miss. An. 94, 23 So. 270 (" bound to die," "could not
'575, 31 So. 195 ; 1903, People v. Conklin, 175 live much longer" ; received) ; 3893, State v.
N. Y. 333, 67 N. E. 624 ; 1900, State o. Jag- Welsor, 117 Mo. 570, 579, 21 S. W. 443 ("im-
' gers, 58 S. C. 41, 36 S. E. 434; 1848, Smith mediate dissolution") ; 1897, State v. Dalton,
V. State, 9 Humph. 17 ("fully conscious of 20 R. I. 114, 37 Atl. 673 ("impending," not
that fact, not as a thing of surmise and conjee- necessarily " immediate ").
ture or apprehension, but as a fixed and inevi- ^ 1834, R. v. Bonner, 6 C. & P. 386 ; 1869,
table fact ") ; 1853, Brakcfield v. State, 1 Sneed R. v. Bernadotti, 11 Cox Cr. 316 (nearly three
218. Asking for a physician does not necessa- weeks' survival ; admitted) ; 1893, Boulden v.
rily show that there is no hope of recovery : 1844, State, 102 Ala. 78, 84, 15 So. 341 (two months'
E. V. Howell, 1 Denison Cr. C. 1 ; 1894, Mc- survival ; ailmitted) ; 1880, Jones v. State, 71
Queen v. State, 103 Ala. ^2, 15 So. 824 ; 1894, Ind. 74 ; 1902, Burton v. Com., — Ey. — , 70
State V. Evans, 124 Mo. 397, 28 S. W. 8. Con- S. W. 831 (death eleven days later ; admitted) ;
tra, but unsound: 1892, Matberly w. Com., — 1879, State v. Daniel, 31 La. An. 95; 1862,
Ky. — , 19 S. W. 977. Com. v. Cooper, 5 All. 497 ; 1871, Com. v.
1 1881, E. 0. Osman, 15 Cox Cr. 1, 3 ("im- Roberts, 108 Mass. 301 ; 1879, Com. v. Hanov,
mediate death") ; 1888, E. v. Gloster, 16 id. 127 id. 457; 1897, State v. Craine, 120 N. 0.
471, 477 (same) ; 1858, McHngh o. State, 31 601, 27 S. E. 72 (five months before death, ad-
Ala. 323 ("that despair which is naturally pro- mitted) ; 1896, Moore v. State, 96 Tenn. 209, 33
duced by an impression of almost immediate dis- S. W. 1 046 (five davs before death ; admitted) ;
.solution") ; 1898, Titus ti. State, 117 id. 16, 23 1875, Swisher's Case, 26 Gratt. 971.
So. 77 (that he "said he would die," insuffi-
1807
§ 1442 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVII
had to all the attending circumstances. It has been contended that only the
statements of the declarant could be considered for this purpose; or, less
broadly, that the nature of the injury alone could not be sufficient, i. e., in
effect, that the declarant must have shown in some way by conduct or lan-
guage that he knew he was going to die. This, however, is without good
reason. We may avail ourselves of any means of inferring the existence of
such knowledge ; and, if in a given case the nature of the wound is such that
the declarant must have realized his situation, our object is sufficiently
attained. Such is the settled judicial attitude:
1789, Eyre, C. B., in Woodcock's Case, Leach Cr. L., 4th ed., 500 : " IWy judgment is
that inasmuch as she was mortally wounded and was in a condition which rendered
almost immediate death inevitable; as she was thought by every person about her to be
dying, though it was difficult to get from her particular explanations as to what she
thought of herself and her situation ; her declarations made under these circumstances
ought to be considered by a jury as being made under the impression of her approaching
dissolution ; for, resigned as she appeared to be, she must have felt the hand of death and
must have considered herself as a dying woman."
1790, R. v. John, 1 East's Cr. L. c. 5, § 124, p. 358; all the judges agreed that "if a
dying person either declare that he knows his danger, or it is reasonably to be inferred
from the wound or state of illness that he was sensible of his danger, the declarations are
good evidence.''
1850, Dargan, C. J., in Oliver v. Slate, 17 Ala. 594: "The Court must look to all the
circumstances under which they were made ; and if they be sufficient to induce the belief
that the deceased made them under the sense of impending death, the declarations are
admissible." ^
It must be said, however, that in ascertaining generally the existence of a
knowledge of approaching death. Courts are now and then found making
1 Accord : 1873, E. v. Smith, 23 U. C. C. P. 1848, Smith v. State, 9 Humph. 20 ; 1892, Mat-
316 ; 1849, McLean v. State, 16 Ala. 672, 674 ; tox». U. S., 146 U. S. 140, 151, 13 Sup. 50; 1897,
1841, Dunn v. State, 2 Ark. 247 ; 1900, New- Carver v. U. S., 164 id. 694, 17 Sup. 228 (the
berry v. State, 68 id. 355, 58 S. W. 351 ; 1897, administration of extreme unction by a priest.
Wagoner v. Terr., — Ariz. — , 51 Pac. 145; admitted to show that the deceased knew she
1882, People v. Gray, 61 Cal. 175 ; 1894, State was dying) ; 1898, He Ovpen, 86 Fed. 760, 764 ;
V. Cronin, 64 Conn. 293, 302, 29 Atl. 536 1831, Vass' Case, 3 Leigh 863. Contra, semble:
(" Lord, have mercy "); 1896, Lester v. State, 1875, R. v. Morgan, 14 Cox Cr. 337 (Denman, J.,
37 Fla. 382, 20 So. 232; 1852, Campbell v. and Cockburn, C. J., thought that "there was
State, 11 Ga. 377 ; 1878, Dumas v. State, 62 id. no case in which the judge had admitted the
58; 1902, Young w. State, 114 id. 849, 40S. E. statement entirely upon an inference drawn
1000 ; 1893, Govt v. Hering, 9 Haw. 181, 188 ; from the nature of the wound itself and from
1865, Murphy v. People, 37 111. 447, 456, giving the deceased credit for ordinary intelli-
semble ; 1869, Morgan v. State, 31 Ind. 199 ; gence as to its natural results," and offered to
1877, State v. Elliott, 45 la. 488 ; 1888, Peoples reserve the case, but the evidence was with-
V. Com., 87 Ky. 496, 9 S. W. 509, 810 ; 1889, drawn ; here the man's head was all but cut off.
Coin. V. Matthews, 89 id. 292, 12 S. W. 333 ; the windpipe and chief blood-vessels severed ;
1857, State v. Scott, 12 La. An. 274; 1895, being unable to speak, he motioned for paper
State V. Jones, 38 id. 792, 18 So. 515 ; 1871, and wrote on it ; he died in ten minutes after
Com. V. Roberts, 108 Mass. 301 ; 1882, People writing ; query, whether any but two lawyers
V. Simpson, 48 Mich. 477, 12 N. W. 662 ; 1895, could have doubted that the man was aware of
Bell V. State, 72 Miss. 507, 17 So. 232; 1894, his horrible plight ?).
State V. Evans, 124 Mo. 397, 28 S. "W. 8 ; 1893, So, also, if the statement is taken in writing
State V. Russell, 13 Mont. 164, 168, 32 Pac. {post, § 1450), the writing need not contain a
854 ; 1895, Collins v. State, 46 Nebr. 37, 64 statement of the expectation of death : 1847,
N. W. 432; 1857, Donnelly «. State, 26 N. J. L. R. v. Hunt, 2 Cox Cr. 239; 1897, People v.
500, 618; 1855, State w.Shelton, 2 Jones L. 360; Yokura, 118 Cal. 437, 50 Pac. 686, semble;
1893, State ». Fletcher, 24 Or. 295, 297, 33 Pac. 1897, Austin v. Com., — Ky. — , 40 S. W.
575; 1858, ICilpatiick v. Com., 31 Pa. 215; 905.
1808
§§ 1430-1452]
DYING DECLAEATIONS.
§ 1442
rulings at which common sense revolts. Moved either by a disinclination to
allow the slightest flexibility of rule in applying principles to circumstances,
or by a general repugnance to exceptions to the Hearsay rule, they have
recorded decisions which can only be derided by laymen and repudiated by
the profession.^ It is the narrow and over-cautious spirit of such decisions
which tends to stunt the free development and application of living princi-
ples, to hamper the administration of justice, and to undermine public
confidence in legal procedure; and no opportunity ought to be omitted of
censuring the manifestations of this spirit.
No rule can here be laid down. The circumstances of each case will show
whether the requisite consciousness existed ; and it is poor policy to disturb
the ruhng of the trial judge upon the meaning of these circumstances.^
' 1851, E. V. Moouey, 5 Cox Cr. 318 (the evi-
dence was that " the clergyman had warned her
to prepare for death ; she had not told any person
that she knew she was d3'ing ; but she had been
heard recommending her soul to God " ; Pigot,
C. B., held that the proof of her being aware
that she was dying was not sufficient) ; 1852,
R. V. Nicolas, 6 Cox Cr. 121 (testimony: "I
believe he knew he wjis dying. 1 cannot recol-
lect that he .said anything about dying before he
began his statement. As he finished it, he said,
' Oh, God ! I am going fast ; I am too far gone
to say any more'" ; Cresswell, J. : "It being
possible that this man did not discover the ex-
tent of his weakness till he had made the state-
ment, and that it was only after he had made it
he for the first time discovered that he was going
fast, there is not, consequently, that clear ascer-
tainment of his consciousness of his state, before
he made it, to render it admissible "). See also
the following: 1835, K. v. Spilsburv, 7 C. & P.
190 ; 1848, Smith v. State, 9 Humph. 22, 23 ;
1854, R. V. Peltier, 4 Low. Can. 22. For an
example of liberal treatment, see Peoples i'.
Com., 87 Ky. 495, 9 S. W. 509, 810 (1888).
* In the following cases various states of
fact, u.seless as precedents, were passed upon ;
the profession should not have been burdened
by a judicial opinion on them : £ng.: 1865, E.
V. Smith, 10 Cox Cr. 82, 95 ; 1866, R. v. Fores-
ter, ib. 368; 1868, R. v. Mackay, 11 id. 148;
1887, R. V. Smith, 16 id. 170 ; Can. : 1897, R.
V. Woods, 5 Br. C. 585, 589; 1903, B. v.
Louie, 8 id. 1, 7 ; Ala. : 1892, Justice v. State,
99 Ala. 180, 182, 13 So. 658 ; 1895, Cole v.
State, 105 id. 76, 16 So. 762 ; 1895, Clark v.
State, ib. 91, 17 So. 37 ; 1898, Fuller v. State,
117id. 36, 23 So. 688 ; 1899, Dubose v. State,
120 id. 300, 25 So. 185 ; 1900, Gibson v. State,
126 id. 59, 28 So. 673 ; 1903, Smith v. State, 136
id. 3, 34 So. 168 ; 1904, Walker i). State, id.
, 35 So. 1011 ; Ark. : 1893, Evans v. State, 58
Ark. 47, 54, 22 S. W. 1026 ; Cal.: 1899, Peo-
ple V. Fuhrig, 127 Cal. 412, 59 Pac. 693 ; 1901,
People V. Lem Deo, 132 id. 199, 64 Pac. 265 ;
1903, People v. Dobbins, 138 id. 694, 72 Pac.
339 ; Fla. : 1900, Ricliard u. State, 42 Fla. 528,
29 So. 413 ; Ga. : 1898, Parks v. State, 105 Ga.
242, 31 S. E. 580 ; 1900, Wheeler v. State, 112
id. 43, 37 S. E. 126 ; III. : 1894, Simons v. People,
150 111. 66, 73, 36 N. E. 1019 ; 1897, Kirkham
V. People, 170 id. 9, 48 N. E. 465 ; 1901, Hage-
now V. People, 188 id. 545, 59 N. E. 242 ; Ind. :
1900, Green v. State, 154 Ind. 655, 57 N. E.
637 ; la. : 1898, State v. Young, 104 la. 730,
74 N. W. 693 ; 1902, Statf v. Phillips. 118 id.
660, 92 N. W. 876 ; 1903, State v. Dennis, 119
id. 688, 94 N. W. 235 ; Kan. : 1902, State v.
Morrison, 64 Kan. 669, 68 Pac. 48 ; Ky. .■ 1898,
Jones V. Com., — Ky. — , 46 S. W. 217 ; 1901,
Barnes v. Com., 110 id. 348, 61 S. W. 733 ;
1896, State v. Smith, 48 La. An. 533, 19 So.
452 ; 1899, State v. Sadler, 51 id. 1397, 26 So.
390 ; 1904, State v. Brown, 111 La. 696, 35 So.
818 ; Mass. : 1895, Com. v. Brewer, 164 Mass.
577, 42 N. E. 92 ; Mich. : 1899, People v. Lons-
dale, 122 Mich. 388, 81 N. W. 277 ; Miss. :
1895, Bell u. State, 72 Miss. 507, 17 So. -232;
1898, Lipscomb w. State, 75 id. 559, 23 So. 210,
230 ; 1898, Joslin v. State, 75 id 838, 23 So.
515; Mo.: 1893, State v. Umble, 115 Mo. 452,
461, 22 S. W. 378 ; 1893, State v. Johnson, 118
id. 491, 503, 24 S. W. 229 ; 1894, State v. Noc-
ton, 121 id. 637, 549, 26 S. W. 551 ; 1899,
State b. Garrison, 147 id. 548, 49 S. W. 508 ;
Nebr. : 1895, Basye v. State, 44 Nebr. 261, 63
N. W. 811 ; N. C. : 1893, State v. Whitt, 113
N. C. 716, 720, 18 S. E. 715 ; 1896, State v.
Finley, 118 id. 1161, 24 S. E. 495 ; 1896, State
V. Mace, ib. 1244, 24 S. E. 798 ; Or. : 1874,
State V. Garrand, 5 Or. 216, 218 ; Pa. : 1894,
Com. V. Silcox, 161 Pa. 484, 497, 29 Atl. 105 ;
1895, Com. V. Mika, 171 id. 273, 33 Atl. 65 ;
;S. C. ; 1880, State v. Belcher, 13 S. C. 459,
463 ; 1896, State v. Arnold, 47 id. 9, 24 S. E.
926 ; 1900, State v. Taylor, 56 id. 360, 34 S. E.
939 ; Tenn. : 1896, Lemons v. State, 97 Tenn.
660, 37 S. W. 562 ; Tex.: 1894, Meyers v. State,
33 Tex. Cr. 204, 216, 26 S. W. 196; Va. :
1901, O'Boyle v. Com., 100 Va. 785, 40 S. E.
121 ; Wash. .■ 1894, State v. Eddon, 8 Wash.
292, 298, 36 Pac. 139 ; 1901, State v. Power,
24 id. 34, 63 Pac. 1112 ; Wis. : 1901, Hughes v.
State, 109 Wis. 397, 85 TS. W. 333. In the
following courts the determination of the trial
judge is said to control: 1899, Baker v. Com.,
Ky. , 50 S. W. 54 ; 1896, Com. v.
Bishop, 165 Mass. 148, 42 N. E. 560 ; 1895,
Basyo v. State, 44 Nebr. 261, 63 Mo. 811.
1809
§ 1443 EXCEPTIONS TO THE HEAESAY EULE. [Chap. XLVII
§ 1443. Revengeful Feelings ; Theological Belief. It remaias to examine
more closely the nature of the circumstantial guarantee of trustworthiness.
It is separable (as may be seen from the judicial language already quoted)
into three elements. (1) The declarant, being at the point of death, " must
lose the use of all deceit," — in Shakspeare's phrase. There is no longer any
temporal self-serving purpose to be furthered. (2) If a belief exists in a
punishment soon to be inflicted by a Higher Power upon human ill-doing, the
fear of this punishment will outweigh any possible motive for deception, and
will even, counterbalance the inclination to gratify a possible spirit of revenge.
(3) Even without such a belief, there is a natural and instinctive awe at the
approach of an unknown future, — a physical revulsion common to all men,
irresistible, and independent of theological belief. In view of these three
elements, what may be laid down as to the condition of the declarant's mind
at this moment before dissolution 1
First, the declarant may exhibit such strong feelings of hatred or revenge
that the effect of all the above influences appears to be lacking. If he is in
such a frame of mind, the supposed guarantee of trustworthiness fails, and
the declaration should not be admitted :
1880, Mulkey, J., in Ti>Q,cy v. People, 97 HI. 105 : " The fact sought to be shown [pro-
fane language] was important in another point of view. It strikes at the very foundation
of the reasons upon which dying declarations are admitted at all. There are certain
guaranties of the truth of dying declarations, growing out of the solemnity of the time
and circumstances under which they are made. ... It was clearly the right of the accused
to show . . . that the deceased in making the statement was not in that frame of mind
which the law presupposes and requires in such cases, . . . that the deceased . . . was
in a reckless, irreverent state of mind, and entertained feelings of ill-will and hostility
towards the accused."
Secondly, if we suppose the second element to be essential, and not merely
usual, then a theological belief of a particular sort — a belief in a punish-
ment in a future state — must be required. Yet if (as seems better) the
third element — the physical revulsion peculiar to the moment — is to be
regarded as the essential element of the guarantee, then the theological belief
is immaterial. This distinction has not been expressly passed upon by the
Courts. The majority of the few cases hold that the theological belief is
material.^
1 1829, R. V. Pike, 3 C. & P. 598 (Park, J. : hardly to be reconciled with the assumption
" As this child was but four years old, it is quite that he was at the time of sound mind and ira-
impossible that she, however precocious in her pressed with a sense of almost immediate death,
mind, could have had that idea of a future state ... It is hard to realize how any sane man
which' is necessary to make such a declaration who believes in his accountability to God can be
admissible. . . . [Her remark] does not show indulging in profanity when at the same time lie
that she had any idea of a fnture state ; indeed, really believes that in a few short hours at most
I think that from her age we must take it that he will be called upon to appear before Him to
she could not possibly have had any idea of that answer for the deeds done in the body "). Ac-
kind"); 1880, Tracy v. People, 97 111. 105 corrf : 1840, R. «. Perkins, 9 C. & P. 395 (dying
(Mulkey, J.: "The vital inquiry before the declaration of a child of ten received ; here he
Court was as to the real condition of the mind said that he expected " to go to hell if he told a
of the deceased when making the statement un- lie, and to heaven if he told the truth ") ; 1857,
der consideration. . . . The use of profane Ian- Donnelly v. State, 26 N. J. L. 507, 620 ; 1829,
giiage immediately preceding the statement is Phillips, Evidence, 7th £ng. ed., 236 ; 1843, ib,
1810
§§ 1430-1452] DYING DECLAEATIONS. § 1445
But this question must be distinguished from that of the declarant's
capacity to take an oath. If in the jurisdiction a witness is no longer affected
by the common-law rule requiring an oath and the capacity to take an oath,
i. e. the possession of a specific theological belief {post, § 1829), the declarant's
belief is immaterial in determining his oath-capacity. But even where this
common-law rule is abolished, his belief may still become material, with
reference to the admissibility of this specific class declaration. In several cases,
however, the Courts, ignoring this double aspect of the question, have been
satisfied with pointing out the abolition of the common-law rule affecting
capacity to take the oath, and have without further question admitted the
declarations. 2 In a few cases it is said that the declarant's belief goes only to
the weight of his statements ; but the Courts here seem still to have had in
mind only the question of common-law competency to take an oath.^
3. Testimonial Qualifications, and other Independent Rules of Evidence, as
applied to this Exception,
There remain certain rules (ante, § 1424) which have nothing to do with
the Hearsay exception as such, but are merely instances of general principles
otherwise established.
§ 1445. Testimonial Qualifications (infancy, Insanity, Interest, Recollection,
Leading Questions, 'Written Declarations, etc.). In general, for testimonial
qualifications, the rules to be applied are no more and no less than the ordi-
nary ones, already examined (§§ 483-812), for the qualifications of other
witnesses :
1857, Ogden, J., in Donnelly v. State, 26 N. J. L. 620 : " Whatever would disqualify a
witness would make such [dying] declarations incompetent testimony."
1864, Sanderson, C. J., in People v. Sanchez, 24 Cal. 26 : " They stand upon the same
footing as the testimony of a witness sworn in the case, and are governed by the same
rules, except as to . . . leading questions."
1874, Campbell, J., in People v. Olmstead, 30 Mich. 434 : " They [the declarations] are
substitutes for sworn testimony, and must be such narrative statements as a witness might
properly give on the stand if living."
1885, Elliott, C. J., in Boyle y. State, 97 Ind. 322 ; 105 Ind. 470 : " Dying declarations
are admissible in a case where the evidence would be competent if the declarant were on
the witness stand. . . . The question here is . . . whether the declarant's statement was
one that a witness on the stand would have been allowed to make."
(1) Insanity, Infancy, Interest. If the declarant would have been dis-
C. & H.'s Notes, No. 457, p. 611. Contra: ligious sense of accountability] has been abro-
1871, Nesbit v. State, 43 Ga. 249 (Lochrane, gated. It mattered not, therefore, upon the
C. J. : " If a man . . . [dies] without belief in point of the mere competency of the evidence,
God or in tiie divine revelation . . . his declara- even had it appeared that the deceased had no
tions would be admissible"); 1897, Carver v. religious belief ") ; 1877, State v. Elhott, 45 la.
U. S., 164 U. S. 694, 17 Sup. 228, semble (dis- 489 (the declarant "believed in no God or fu-
belief in a future state of rewards and penalties tuie conscious state") ; 1880, State v. Ah Lee,
does not exclude). 8 Or. 218.
« 1872, People v. Sanford, 43 Cal. 34 (Wal- « 1886, Hill v. State, 64 Miss. 440, 1 So.
lace, C. J. : " The common-law rule in that 494 ; 1861, Gcodall v. State, 1 Or. 335.
respect [incompetence of a witness lacking a re-
1811
§ 1445
EXCEPTION'S TO THE HEARSAY BULE. [Chap. XLVII
qualified to take the stand, by reason of infancy,^ insanity,^ or interest,^ his
extrajudicial declarations must also be inadmissible.
(2) Knowledge. The declarant must have had actual observation or oppor-
tunity for observation of the fact which he relates.*
(3) Recollection. The declarant's capacity of recollection, and his actual
recollection, must have been sufficiently imimpaired to be trustworthy. ® The
allowance of leading questions to stimulate recollection is sometimes here said
to be by way of exception to the general rule against leading questions {ante,
§ 769). But in truth there seems to be no exception. The situation is not
that of a presumably partisan witness offered in court, and questions leading
in form will often have to be asked in order to obtain the information from
a dying person unable to express himself except by a brief " yes " or " no."
The mere fact, then, that questions leading in form are asked does not
infringe the principle which forbids the supplying of a false memory
{ante, § 778). There is thus no general rule here against leading questions.®
Nevertheless, where, in a particular case, the interrogators might seem to
be really supplying a false memory, the answers should be excluded.'^
(3) Communication, (a) Any adequate method of communication, whether
by words or by signs or otherwise, will suffice, provided the indication is posi-
tive and definite, and seems to proceed from an intelligence of its meaning :
^ 1784, E. 0. Drummond, Leach Cr. L. 4th
ed. 337 ; 1896, State u. Baldwin, 15 Wash. 15,
45 Pac. 650 ; for the general rules, see ante,
§492.
2 1898, Lipscomb v. State, 75 Misa. 559, 23
So. 210, 330, 25 So. 168 (" not Insane or deliri-
ious, but spoke with discernment, reason, and
intelligence ") ; 1897, State v. Reed, 137 Mo.
125, 38 S. W. 574 (possession of proper mental
faculties need not be shown in advance) ; Tex.
C. Cr. P. 1893, § 788 (quoted ante, § 1430) ;
for the general rules, see ante, § 519.
' 1806, Jackson v. Vredenburgh, 1 John.
159, 163 ; for the general rules, see mvte, § 576.
For oath-capacity, see ante, § 1443.
* 1882, Walker v. State, 39 Ark. 225 ; 1889,
Jones ». State, 52 id. 347, 12 S. W. 704 (dec-
larations rejected because it was impossible for
the declarant to have seen who shot him, and he
had therefore no adequate source of knowledge) ;
1901, Jones v. State, 79 Miss. 309, 30 So. 759
(declaration, by one shot in the back through a
window at night, that J. shot her, because he had
said that he was goiug to do so, held inadmissible
because of lack of personal knowledge ; yet the
declaration as to J.'s threat should have been
admitted, as concerning a part of the transac-
tion) ; 1897, State v. Reed, 137 Mo. 125, 38
S. W. 574 (admissible as to whatever the de-
ceased could testify to if on the stand) ; 1898,
Corn. V. Roddy, 184 Pa. 274, 39 Atl. 211 (dying
identification of murderer ; declarant held quali-
fii-d on the facts). For the general rules, see
ante, § 656. Compare the cases cited post,
§ 1447, some of which can be supported ou the
present [ninciple.
» 1880, Mookabee v. Com., 78 Ky. 379 (the de-
clarant affirmed a paper previously written, and
this was admitted on condition that his memory
as to its contents was then clear) ; 1856, Brown
V. State, 32 Miss. 448 (Smith, C. J. : " There
are strong reasons for believing that the de-
ceased did not fully understand the declarations
as read to him, or that his faculties were so
much impaired by the wounds under which he
suffered that he was incapable of remembering
with distinctness or stating with accuracy the
facts and circumstances of the rencontre which
resulted in his death ") ; 1831, Vass' Case, 3
Leigh 863, semble. For the general rules, see
ante, §725.
6 1835, R. V. Fagent, 7 C. & P. 238 ; 1849,
McLean v. State, 16 Ala. 672, 675 ; 1864, People
V. Sanchez, 24 Gal. 26 ; 1898, State v. Ashworth,
50 La. An. 94, 23 So. 270 (mere asking of
specific questions does not exclude) ; 1901,
Worthington v. State, 92 Md. 222, 48 Atl. 355 ;
1892, Mattox v. U. S., 146 U. S. 152, 13 Sup. 50 ;
1885, People v. Callaghan, 4 Utah 49, 6 Pac.
49. Contra: Tex. C. Cr. P. 1895, § 788 (see
quotation ante, § 1430).
' 1892, E. V. Mitchell, 17 Cox Cr. 503, 507'
(dying declarations made in answer to unre-
corded questions, excluded, partly because the
questions might have been leading); 1399,
People V. Fuhrig, 127 Cal. 412, 59 Pac. 693
(long typewritten statement read over without
stopping, and then assented to, excluded on
the facts). Oontra, semble: 1872, Peo)>le v.
Knapp, 26 Mich. 116 (Campbell, J. : "Where
they are taken under suspicious circumstances,
or drawn out by doubtful means, they are not
excluded, but go to the jury for what they are
worth").
1812
§§ 1430-1452]
DYING DECLAEATIONS.
§1446
1880, Hints, J., in Mockahee v. Com., 78 Ky. 382 : " Dying declarations are not neces-
saiily either written or spoken. Any method of communication between mind and mind
may be adopted that will develop the thought, as the pressure of the hand, a nod of the
head, or a glance of the eye." '
(6) When the declaration is in writing, the question may arise whether
it is his narration at all {ante, § 799). If the declarant has written it, or
has signed or otherwise approved it after reading it, or hearing it read
aloud to him, it may be offered as his declaration.* Otherwise it is not
his declaration, but merely the written statement of the person taking
the declaration ; and it cannot in such a case be put in as being itself the
dying person's declaration;" though it may of course be used to refresh
the writer's recollection, or may be put in as embodying the writer's
recollection (under the principles of §§ 744-764, ante)P- Whether this
writing must be offered, instead of an auditor's testimony by recollection,
is a different question (examined post, § 1450).
§ 1446. Testimonial Impeachment or Rehabilitation. The dying declara-
tion being in effect a testimonial statement made out of court {ante, § 1424),
the declarant is open to impeachment and discrediting in the same way as
other witnesses {ante, § 885), so far as such a process is feasible. Thus,
impeachment by bad testimonial character {ante, § 922) is allowable,^ or by
8 1872, R. V. Steele, 12 Cox Cr. 168 (the
deceased had told Dr. Patchett his story ; then,
when dying, and being asked what happened, he
said, " Tell him, Patchett " ; and P. repeated the
Story in the declarant's presence ; P.'s statement
was admitted ; Lush, J. : " It is equivalent to
saying it himself") ; 1903, R. v. Louie, 10 Br.
C. 1, 3, 9 (nodding the head, held sufficient) ;
1858, McHugh v. State, 31 Ala. 323 (the at-
torney put questions, the attending friends made
answers, and the deceased nodded his head to
them ; excluded, the Court not believing on the
facts " that he either perfectly understood the
language or was able to have detected the erro-
neous inference as to his meaning which his
friends may honestly have drawn") ; 1858,
Godfrey v. State, 31 id. 321 (the declarant merely
nodded his head to questions by friends, his
mind being also weak and lethargic at the time ;
rejected, because it did not appear that he under-
stood their words or could know what they
understood as his meaning) ; 1897, Wagoner v.
Terr., — Ariz, — , 51 Pac. 145 (when asked
why the defendant shot him, the deceased said,
" You know why " ; held admissible, when inter-
preted by the circumstances as applying to his
wife's adultery with the defendant) ; 1853, Com.
V. Casey, 11 Cush. 420 (pointing with a finger,
so as to convey a meaning clearly, held sufficient).
Compare Luby v. Com., 12 Bush 6 (1876). For
the general rules, see ante, §§ 789, 811.
It has been ruled that the expressions must be
in form assertive, i. e. that mere exclamations are
not to be admitted : 1874, People v. Olmstead,
30 Mich. 435. But this is without reason. If
a defijiite assertive efi'ect is conveyed the form
is immaterial.
1813
» 1898, Perry v. State, 102 Ga. 365, 30 S. E.
903 (that it is reduced to writing by another and
signed by the deceased, does not exclude) ;
1900, Freeman v. State, 112 id. 48, 37 S. E. 172
(the deceased's signature is not necessary) ; 1896,
State V. Parham, 48 La. An. 1309, 20 So. 727
(written by a physician, signed by the deceased,
and authenticated by a magistrate, admitted) ;
1885, People v. Callaghan, 4 Utah 49, 6 Pac.
49 (like the next case) ; 1897, State v. Carring-
ton, 15 id. 480, 50 Pac. 526 (not signed, but as-
sented to on hearing it read over ; adtnitted) ; •
1896, State v. Baldwin, 15 Wash. 15, 45 Pac.
650 (the statement as written down need not be
in the deceased's exact language).
1" 1875, State v. Fraunburg, 40 la. 557 (a run-
ning memorandum of the statement written by
a magistrate, and not read over or signed by the
declarant, held not admissible) ; 1903, Foley v.
State, — Wyo. — , 72 Pac. 627 (a memoran-
dum not read over or signed by the deceased,
and therefore usable only to refresh the writer's
recollection, held not technically itself admis-
sible).
" 1903, Fuqua v. Cora., — Ky. — , 73
S. W. 782 (writing not signed by the deceased,
used to aid the writer's memory).
1 1896, Lester v. State, 37 Fla. 382, 20 So:
232 ; 1896, Redd v. State, 99 Ga. 210, 25 S. E.
268 ; 1898, Perry v. State, 102 id. 365, 30 S. E.
903 ; 1897, Carver v. U. S., 164 U. S. 694, 17
Sup. 228.
So also for other impeaching qualities {ante,
§933): 1847, State v. Thawley, 4 Harringt.
562 (admitting general evidence of his intem-
perate habits and of his low state of health at
the time).
§ 1446
EXCEPTIONS TO THE HEAESAY EULE. [Chap. XLVII
conduct showing a revengeful or irreverent state of mind at the time {ante,
§ 950),^ or by conviction of crime {ante, § 980),^ or by prior or subsequent
inconsistent statements {ante, § 1017).* So also he may be corroborated by
evidence of similar consistent statements, so far as this is allowable by the
principles of that subject {ante, § 1122).^
§ 1447. Rule against Opinion Evidence. The Opinion rule has no appli-
cation to dying declarations. The theory of that rule {post, § 1918) is that,
wherever the witness can state specifically the detailed facts observed by
him, the inferences to be drawn from them can equally well be drawn by the
jury, so that the witness' inferences become superfluous. Now, since the
declarant is here deceased, it is no longer possible to obtain from him by
questions any more detailed data than his statement may contain, and hence
his inferences are not in this instance superfluous, but are indispensable.
Nevertheless, Courts seem to accept the Opinion rule as applicable. More-
over, the rule is by some Courts applied here with more than the ordinary
absurdity of results found in the use of that rule ; some of the rulings, in
their pedantic technicality, would be a scandal to any system of evidence
supposed to be based on reason and common sense.^
» 1899, State v. O'Shea, 60 Kan. 772, 57 Pac.
970 (that the deceased " used profanity "just be-
fore his death, admitted) ; 1897, Carver v. U. S.,
164 U. S. 694, 17 Sup. 228 (that the deceased
did not helieve in future rewards and punish-
ments, admitted). Compare § 1443, ante.
3 1896, State v. Baldwin, 15 Wash. 15, 45
Pac. 650. Compare § 1445, note 1, ante.
* The authorities are collected ante, § 1033,
where the special objection to this kind of evi-
dence, that no prior question can be asked of
the declarant, is discussed in detail.
So also impeachment by contradiction (ante,
§ 1000) may be allowable : 1900, State v.
Stuckey, 56 "S. C. 576, 35 S. E. 263 (whether
irrelevant facts in the declaration could be dis-
proved for impeachment, as an exception to
§ 1003, ante; not decided).
' But the usual limitations seem to be not
always strictly observed : 1858, People v. Glenn,
10 N. C. 32, 36 (even in chief, without any im-
peachment) ; 1879, State v. Blackburn, 80 id.
474, 478 (similar statements in support after
impeachment by contradiction, admitted) ; 1897,
State t>. Craine, 120 id. 601, 27 S. E. 72 (an
affidavit made on the same day, admitted).
* It must be noted that so far as the de-
clarant's "opinion" is construable as a mere
guess, not based on personal observation, it is
inadmissible on other principles (ante, §§ 1445,
658), and this may account for some of the fol-
lowing rulings ; others also may be supported
on the rule (ante, § 1434), that the declarations
must relate to the circumstances connected with
the death ; Ala. : 1893, Sullivan v. State, 102
Ala. 135, 142, 15 So. 264 ("he cut me for noth-
ing, " admitted ; "I pray God to forgive him, "
excluded) ; 1901, Gerald v. State, 128 id. 6. 29
So. 614 (" he killed me for nothing," admitted) ;
Ark. : 1897, Berry v. State, 63 Ark. 382, 38 S.W.
1814
1038 (that the whiskey which the defendant
gave him was poisoned, excluded) ; Ga. : 1868,
Whitley v. State, 38 Ga. 70 ; 1897, White v.
State, 100 id. 659, 28 S. E. 423 ("he shot
me down like a dog," received) ; 1897, Kearney
V. State, 101 id. 803, 29 S. E. 127 (that the
wound was accidentally inflicted by the defend-
ant, excluded) ; Ind. : 1874, Binns v. State, 46
Ind. 311 ; 1885, Boyle v. State, 105 id. 469, 472,
5 N. E. 203 (that there was no cause for the kill-
ing, allowable) ; 1898, Lane v. State, 151 id. 511,
51 N. E. 1056 (that the deceased made no attsmpt
to injure the defendant, admitted) ; 1900, Shan-
kenberger v. State, 154 id. 630, 57 N. E. 519
(that she was " poisoned by my mother-in-law,"
admitted) ; la. : 1866, State v. Nettlebush, 20
la. 257 ; 1900, State v. Wright, — id. — , 84
N. W. 541 (that the defendant did not intend to
shoot him, and that the defendant was crazy,
excluded) ; 1902, State v. Sale, 119 id. 1, 92
N. W. 680, 95 N. W. 193 (declaration of de-
ceased that " he was to blame," excluded; this
well shows the absurdity of applying the Opinion
rule here) ; Kan. : 1899, State v. O'Shea, 60
Kan. 772, 57 Pac. 970 (that the deceased and
the defendant were the "best of friends," etc.,
excluded) ; Ky. : 1876, Collins v. Com., 12
Bush 272; 1889, Com. v. Matthews, 89 Ky.
293, 12 S. W. 333; 1898, Jones v. Com., —
id. — , 46 S. W. 217 (that the defendant
had shot him " for nothing," excluded) ; 1903,
Henderson v. Com., — id. — , 72 S. W. 781
("I know that one of the two shot me," ad-
mitted) ; La. : 1898, State v. Ashworth, 50 La.
An. 94, 23 So. 270 ("that he was to blame with
his own death," admitted, the accused ottering
them) ; Miss. : 1883, Payne d. State, 61 Miss.
163 ; 1897, Powers v. State, 74 id. 777, 21 So.
657 (" You have killed me without cause," ad-
mitted) ; 1898, Lipscomb v. State, 75 Miss. 559,
§§ 1430-1452]
DYING DECLAEATIONS.
§ 1449
§ 1448. Rule of Completeness. The application of the doctrine of Com-
pleteness (post, § 2094) is here peculiar. The statement must not convey a
part only of ' the whole affair as it exists in the declarant's recollection ; it
must be complete as far as it goes. But it is immaterial how much of the
whole affair of the death is related, provided the statement includes all that
the declarant wished or intended to include in it. Thus, if an interruption
(by death or by an intruder) cuts short a statement which thus remains
clearly less than that which the dying person wished to make, the fragment-
ary statement is not receivable, because the intended whole is not there, and
the whole might be of a very different effect from that of the fragment ; yet
if the dying person finishes the statement he wishes to make, it is no objec-
tion that he has told only a portion of what he might have been able to tell :
1873, Barrett, J., in State v. Patterson, 45 Vt. 308, 313: "What we understand is . . .
not that the declarant must state every thing that constituted the res gestce of the subject
of his statement, but that his statement of any given fact should be a full expression of
all that he intended to say as conveying his meaning as to such fact." ^
§ 1449. Rule of Producing Original of a Document. The rule that, where
a writing is desired to be proved, the original must be produced or else
23 So. 210 (" (1) I am going to die ; I have been
dead ; the good Lord has sent me back to tell
you that (2) Dr. L. has killed me, has poisoned
me with a capsule he gave me to-night, (3) that
6. J. had insured his life, and had hired Dr. L.
to kill him " ; these words were uttered between
convulsions ; held, by a majority that (1) and
(3) could be separated, and that (2) was admis-
sible, not being opinion evidence, Magruder, J.,
diss. ; the dissenting opinion is a pitiable in-
stance of the barren quibbling to which this
question leads ; and the reprehensible practice
of allowing a minority judge to write the chief
opinion makes it difficult to unearth the points
decided) ; N. Y. : 1875, People v. Shaw, 63
N. Y. 40 ; 1878, Brotherton v. People, 75
id. 159 ; N. C. : 1872, State v. Williams, 67
N. C. 12, 17 ("It was E. W. who shot me,
though I did not see him," excluded) ; 1896,
State V. Mace, 118 id. 1244, 24 S. E. 798
( " They have murdered me," solemnly held not
to be "an expression of opinion with respect to
the degree of the homicide") ; 1902, State v.
Dixon, 131 id. 808, 42 S. E. 944 (that the as-
sailant looked like defendant, allowed); Oh.:
1870, Wroe v. State, 20 Oh. St. 469 ; Or. : 1886,
State V. Saunders, 14 Or. 305, 12 Pac. 441 ("he
shot me down like a dog," admitted) ; 1893,
State V. Foot Yon, 24 id. 61, 75, 32 Pac. 1031,
33 Pac. 537 (positive identification, admitted ;
opinion in general excluded) ; S. 0. : 1900, State
V. Lee, 58 S. C. 335, 36 S. E. 706 ("he shot me
for nothing," admitted); Utah: 1897, State v.
Kessler, 15 Utah 142, 49 Pac. 293 ("he shot
me down like a rabbit," admitted) ; 1897, State
V. Carrington, 15 id. 480, 50 Pac. 526 (a state-
meut as to the intent of a person perfonning an
operation on the womb of a deceased, excluded
on the principle of § 1964, post) ; Wash. : 1894,
State V. Gile, 8 Wash. 12, 22, 35 Pac. 417 (that
he was " butchered," admitted) ; W. Fa. : 1900,
1815
State V. Burnett, 47 W. Va. 731, 35 S. E. 983
(a declaration that "I think C. B. did the shoot-
ing, because he has threatened to do it," ex-
cluded as opinion ; here properly excluded, on
the principle of § 658, ante).
* Accord : 1849, McLean v. State, 16 Ala.
672, 675 ( " the declaration in this case was com-
plete, and it is not shown that he intended or
desired to connect it with any other fact or cir-
cumstance explanatory of it" ; admitted) ; 1846,
Ward V. State, 8 Blackf. 101, 102 (the substance
suffices) ; 1866, State v. Nettlebush, 20 la. 260 ;
1898, State w. Ash worth, 50 La. An. 94, 23 So. 270
(the statement must be complete " to the extent
that the deceased desired to make it " ; but that
it consists of several remarks between which
other conversation took place is immaterial) ;
1901, 1902, State v. Carter, 106 La. 407, 30 So.
895, 107 id. 792, 32 So. 183 ("a dying decla-
ration must go in as a whole, and is not rendered
inadmissible because some of its statements of
themselves, and if standing alone, would be
inadmissible ") ; 1850, Nelms v. State, 13
Sm. & M. 505 (the substance of his statement
suffices) ; 1893, State v. Johnson, 118 Mo. 491,
504, 24 S. W. 229 (obscure statement) ; 1831,
Vass' Case, 3 Leigh 864 ; 1870, Jackson v. Com.,
19 Gratt. 668. Compare the cases cited, post,
§§ 2097, 2099.
If a part only is proved, the opponent may
prove the remainder : 1892, Mattox v. U. S., 146
U. S. 140, 152, 13 Sup. 50 ; compare the cases
aitei post, § 2115.
If the statement was given by answers to
questions put, it is not indispensable that the
questions should be offered also ; 1903, E. v.
Louie, 10 Br. C. 1, 8 ; 1900, Com. v. Biriiolo,
197 Pa. 371, 47 Atl. 355 (a dying statement writ-
ten down by another person may be used, though
it contained the answers only and not the ques-
tions).
;
§ 1449 EXCEPTIONS TO THE HEAESAY EULE. [Chap. XLVII
accounted for {ante, § 1179), applies here as everywhere, and is not disputed.
It must be noted, however, that this rule applies even where the document is
not regarded (under the principle of the following section) as the exclusive
evidence of the declaration. That is, if in such a jurisdiction a bystander's
oral account of the declaration is offered, the writing need not be produced ;
but if it is the substance of the writing which he purports to give, the absence
of the writing must first be accounted for.-*
§ 1450. Rule of Preferring 'Written Testimony. The principles which
determine whether a written report of another person's statement is to be
preferred to oral testimony, and must therefore be produced, have already
been examined in their general applications {ante, §§ 1326, 1333). It is, how-
ever, more convenient to consider here their application to dying declarations.
{a) Where an auditor of a dying declaration makes in written form a note
or report of the oral utterances, this written statement of the auditor is not
preferred evidence, and need not be produced ; for there is not and never was
any principle of evidence preferring a person's written memorandum of testi-
mony to his or another's oral or recollection testimony.^ Nor is the case
different when the person thus making the written report was a magistrate
having power to administer oaths or take testimony on a preliminary exami-
nation ; ^ for such a person has no duty or authority by law to report dying
declarations, and it would be solely by virtue of an express duty that a magis-
trate's report could be preferred to other witnesses {ante, § 1326).
(V) Where a written memorandum or report thus made is read over to the
declarant and signed or assented to by him, the writing thus becomes a second
and distinct declaration by him. The first oral statement is not merged in
the later written one, because, since the transaction is not a contract or other
legal act between two parties thereto, the rule of Integration, or Parol Evi-
dence rule {post, § 2425), has no application. The first and oral declaration
is therefore provable without producing the later written one.^ Nevertheless,
^ Compare the general principle, aiUe, §1231. (written notes of a dying declaration sworn to
^ To the following add the cases in note 3, before a justice, not preferred). Contra: 1722,
infra, as also involving the same ruling: 1885, R. v. Reason and Tranter, 16 How. St. Tr. 33
Anderson v. State. 79 Ala. 5, 8 (declaration (assumed by all the judges as law ; quoted in
reduced to writing, but not read over to deceased note 5, infra). For the rule that the magistrate
or signed ; writing not preferred) ; 1903, Jarvis Tnusl be called to the stand, and not merely his
V. State, — id. — , 34 So. l025 (similar); writing used, sea post, § 1667.
1879, State v. Sullivan, 51 la. 142, 146, 50 » 1879, Com. v. Haney, 127 Mass. 455
N. W. 572 (declaration reduced to writing but not (declarations reduced to writing and signed by
signed ; writing not preferred) ; 1885, State v, deceased ; the writer allowed to testify to oral
Holcomb, 86 Mo. 371, 377 (written down by declarations, using the writing to refresh his
another; writing not preferred); 1881, Allison memory; Ames, J.: "The words used by the
V. Com., 99 Pa. 17, 33 (declaration reduced to deceased were none the less primary evidence for
writing, but not read over to the deceased nor having been taken downi by a bystander in writ-
signed ; writing not preferred). Contra: 1880, ing; they maybe testified to by any one who
Ejiperson v. State, 5 Lea 291, 297 (where there heard and remembers them ; the written state-
is but one declaration, and a bystander reduces nient was a contemporary memorandum of what
it to writing, this is preferred ; but perhaps not, he said ") ; 1892, State u. Whitson, 111 N. C.
in proving "an independent declaration at the 695, 697, 16 S. E. 332 (declaration taken in
same interview "). The question came up, but writing by A, and used by A to refresh memory ;
was avoided, in 1765, in Lord Byron's Trial, 19 writing not the preferred evidence, though signed
How. St. Tr. 1222. and sworn to by deceased) ; 1838, Beets f. State,
* 1838, Beets </. State, Meigs 106, semble Meigs 106, semble (cited in note 2, supra).
1816
§§ 1430-1452]
DYING DECLARATIONS.
§ 1450
tte majority of Courts, accepting the superficia] analogy of the Parol Evidenoe
rule or of Depositions {ante, §§ 799, 802), require the writing to be used,
excluding testimony to the oral statement.* It may be noted that of course
so far as the proponent is offering to prove the terms of the writing.not of the
oral utterance, the writing must be produced {ante, § 1449).
(c) Where the declarant makes one oral statement, and afterwards at
another time a second statement, the latter being in writing or reduced to writ-
ing, there are here two distinct statements, and either one may be offered
without testifying to the other; for the principle of Completeness (ante,
§ 1448) requires only that the whole of a single utterance should be offered
together, and in the present instance the declarant, though referring to the
same occurrence,. is nevertheless making distinct statements, each of which is
independently admissible. It is thus clear (1) that separate oral utterances
are admissible, even though the written one has been proved ; (2) that, even
before or without proving the written one, the separate oral ones are admis-
sible, — though on the latter point the Courts are not always explicit.^
(d) That a magistrate's report of the declaration should be regarded as
conclusive, so as to forbid a showing by other testimony of what was really
* 1835, R. V. Gay, 7 C. & P. 230, Coleridge,
J. (declaration taken down, then signed by the
declarant ; the writing preferred to the writer's
oral testimony) ; 1893, Boulden v. State, 102
Ala. 78, 84, 15 So. 341 (declaration "reduced to
writing " in an unspecified way, preferred, if
available) ; 1858, People v. Glenn, 10 Cal. 32,
37 (declaration reduced to writing and signed,
preferred to oral testimony ; oral declarations at
a different time also allowed, the written one
being first proved) ; 1860, State v. Tweedy, 11
la. 360, 359 (declaration reduced to writing at
the time and signed ; the writing preferred ; but
oral statements at other times admissible) ; 1895,
Saylor v. Com., 97 Ky. 184, 30 S. W. 390 ; 1892,
King V. State, 91 Tenn. 617, 650, 20 S. W. 169 ;
1876, People v. Tracy, 1 Utah 343, 346 (called
"the best evidence"; here signed by the de-
clarant).
" 1722, R. V. Reason and Tranter, 16 How.
St. Ti'. 33 (Pratt, L. C. J. : " You know in the
Court of Chancery, when the party is examined
on his oath, he gives in a first answer, and on
exceptions taken to it he gives in a second, and
so a third ; all these are taken but as one answer
and entire confession of the party. . . . [Isow
in this case of alleged murder] this minister
came to enquire of this [dying] gentleman about
the circumstances of his death ; after that, the
same gentleman is present when the justices of
the peace come ; thereupon the justices of the
peace desire him to take it in writing ; he asks
the same questions as he did before, and they
are taken in writing ; he takes it designing to
make the first examination more authentic to
charge the person that gives the examination.
Now really, when all this is done, the exami-
nation of him before the justice, taken in writing
by the same person that enquired of him before,
and all this done in order to perfect and consum-
mate the examination, whether you will not take
them both together as one entire account given
by the' deceased ?" ; Fortescue, J., thought dif-
ferently : " 1 think we shonld allow what was
said at other times to be given in evidence, be-
cause the first is no examination, because no
justice of the peace then present, so that the
examination stands distinctly by itself," and
this opinion prevailed) ; 1859, Collier v. Stale,
20 Ark. 36, 44 (declarations made on three
different occasions, on the last two being reduced
to writing ; the first statements received, without
prodncing the others) ; 1858, People w. Glenn, 10
Cal. 32, 37 (see note 4, supra) ; 1868, People v.
Vernon, 35 id. 49 ; 1900, Morrison v. State, 42
Fla. 149, 28 So. 97 (any one of separate written
statements, admissible without the others) ;
1898, Dunn v. People, 172 111. 582, 50 N. E.
137 (statements at several times ; reduction to
writing on one occasion does not exclude oral
testimony of the statements "on other occa-
.sions ") ; 1898, Lane v. State, 151 Ind. 511, 51
TS. E. 1056 (other and oral statements not ex-
cluded) ; 1860, State v. Tweedy, 11 la. 350, 359
(see note 4, mpra) ; 1903, Hendrickson v. Com.,
— Ky. — , 73 S. W. 764 (other statements
made "about or subsequent to the drafting" of
the pa]ier -signed by the deceased, admitted) ;
1882, People v. Simpson, 48 Mich. 474, 478, 12
N. W. 662 (oral declarations at different times,
admissible, semble) ; 1880, Epperson v. State, 5
Lea 291, 297, semhle (see note 1, supra) ; 1897,
State V. jCaiTington, 15 Utah 480, 50 Pac. 526
(oral declarations, afterwards reduced to writing
and assented to ; all admissible) ; 1902, Herd v.
State, 43 Tex. Cr. 575, 67 S. W. 495 (other
statements, made at the same time with one
reduced to writing and signed, held admissible ;
Henderson, J., diss.).
1817
§ 1450 EXCEPTIONS TO THE HEARSAY EULE. [Chap. XL VII
said by the declarant, has already been noted as an unsound principle (^ante,
§ 1349). It seems not to have been applied to dying declarations.
§ 1451. Judge and Jury, (a) That the judge is to pass on the preliminary
conditions necessary to the admissibility of evidence is unquestioned (post,
§ 2550). It follows, as of course, that, since a consciousness of impending
death is according to the foregoing principles legally essential to admissibility,
the judge must determine whether that condition exists before the declara-
tion is admitted.^
(&) After a dying declaration, or any other evidence, has been admitted,
the weight to be given to it is a matter exclusively for the jury. They may
believe it or may not believe it ; but, so far as they do or do not, their judg-
ment is not controlled by rules of law. Therefore, though they themselves
do not suppose the declarant to have been conscious of death, they may still
believe the statement ; conversely, though they do suppose him to have been
thus conscious, they may still not believe the statement to be true. In other
words, their canons of ultimate belief are not necessarily the same as the
preliminary legal conditions of admissibility, whose purpose is an entirely
different one (ante, § 29). It is therefore erroneous for the judge, after once
admitting the declaration, to instruct the jury that they must reject the decla-
ration, or exclude it from consideration, if the legal requirement as to con-
sciousness of death does not in their opinion exist. No doubt they may
reject it, on this ground or on any other ;2 but they are not to be expected to
follow a definition of law intended only for the judge. Nevertheless, this
heresy has obtained sanction in a few jurisdictions ;^ it is analogous to that
already discussed in reference to a jury's use of confessions (ante, § 861).
§ 1452. Declarations usable by Either Party. Owing to the present
peculiar limitation of this evidence to public prosecutions for homicide, and
^ A contrary ruling was made by L. C. B. weight of tlie evidence," arc to consider whether
Eyre, in 1790, E. w. Woodcock, Leach Cr. L., declarant was at the point of death and conscious
3d ed., 563 ; but this was subsequently repu- of it) ; 1902, State v. PhiUips, 118 la. 660, 92
diated in England, and the principle as stated N. W. 876 (the jury are to reconsider it under
above does not seem to have been since doubted : all the circumstances); 1898, State v. Sexton,
1816, R. V. Hiicks, 1 Stark. 521 (Ellenborough, 147 Mo. 89, 48 S. W. 452 (the judge passes on
L. C. J., said this was the " unanimous opinion " admissibility, but the jury may be allowed to
of thejudgeshere,ou aconsultation fromlreland; weigh the value); 1872, State v. Williams, 67
"it might as well," Mr. Starkie adds, " be left N. C. 12, 17 (the judge must pass on admis-
to a jury to say whether a witness ought to be sibility).
sworn, or whether he is not incapacitated by * 1876, Jackson v. State, 56 Ga. 235 (instruc-
ignorance or infamy or any other cause from tion to the jury to decide whether the statement
giving evidence upon oath ") ; 1896, Com. v. was made at the point of death, held proper) ;
Bishop, 165 Mass. 148, 42 N. E. 560 ; 1887, 1878, Dumas v. State, 62 id. 58, 62 (same) ;
People V. Smith, 104 N. Y. 491, 504, 10 N. E. 1899, Smith v. State, 110 id. 255, 34 S. E. 204
873 (" It cannot be left to the jury [in the first (instruction that, if jury thought the declarant
instance] to say whether the deceased thought not at point of death nor conscious of it, they
he was dying or not, for that must be decided by must not consider the declaration, held proper) ;
the judge before he permits the declaration to be 1903, Anderson v. State, 117 id. 255, 43 S. E.
given in evidence "). 835 ; 1903, Smith v. State, 118 id. 61, 44 S. E.
So also for the opinion rule : 1901, Jones v. 817 ; 1895, Com. v. Brewer, 164 Mass. 577, 42
State, 79 Miss. 309, 30 So. 759 (whether a decla- N. E. 92 (an instruction "You are not to con-
ration is matter of opinion is for the Court to sider the statement . . . unless you are satisfied
determine before submission to the jury ; State v. ... that he believed that there was no hope of
Williams, N. C, infra, note 2, distinguished). life," held proper) ; 1899, Hopkins v. State, —
2 1899, Bush V. State, 109 Ga. 120, 34 S. E. Tex. Cr. — , 53 S. W. 619 (the trial Court al-
298 (the jury, "in passing upon the value and lowed to "submit the question to the jury").
1818
§§ 1430-1452] DYING DECLAEATIONS. § 1452
the tenor of the declarations usually made by the dying person, it has some-
times been argued that the declarations cannot be used by the accused.
But the argument has no foundation whatever, and has been generally
repudiated.^
1 1848, Moore v. State, 12 Ala. 767 ; 1898,
People V. Southern, 120 Cal. 645, 53 Pac. 214
1886, State v. Saunders, 14 Or. 304, 12 Pac. 441
1892, Mattox v. U. S. , 146 U. S. 151, 13 Sup. 50,
Contra, semble : 1836, E. v. Scaife, 1 Moo. & accused),
Bob. 552, 2 Lew. Cr. C. 150 (a declaration was
after doubt received in favor of the prisoner, but
as influencing the amount of punishment) ; 1872,
People V. McLaughlin, 44 Cal. 435, per Wallace,
C. J. (the declarations cannot be offered by the
VOL. n — 52 1819
§ 1455
BOOK I, PART II, TITLE H.
[Chap. XLVIII
Sub-title II {continued) : EXCEPTIONS TO THE HEAESAY EULE.
Topic II : STATEMENTS OF FACTS AGAINST INTEREST.
CHAPTER XLVIIL
§ 1455. In general ; Statutes.
1. The Necessity Principle.
§ 1456. Death, Absence, Insanity, etc., as
making the Witness Unavailable ; Receipts of
a Third Person.
2. The Circumstantial Guarantee.
§ 1457. General Principle.
§ 1458. Statements predicating a Limited
Interest in Property.
§ 1459. Same : Other Statements (Admis-
sions, etc.) about Land, discriminated.
§ 1460. Statements predicating a Fact against
Pecuniary Interest ; Indorsements of Payment ;
Receipts.
§ 1461. Statements of Sundry Facts against
Interest.
§ 1462. The Fact, not the Statement, to be
against Interest.
§ 1463. Facts may or may not be against
Interest according to Circumstances, or accord-
ing to the Parties in dispute.
§ 1464. No Motive to Misrepresent ; Prepon-
derance of Interest ; Credit and Debit Entries.
§ 1465. Statement admissible for All Facts
Contained in it ; Separate Entries.
§ 1466. Against Interest at the Time of the
Statement; Creditor's Indorsement of Payment.
§ 1467. Statement to be made Ante Litem
Motam.
§ 1468, Disserving Interest to be shown by
Independent Evidence.
§ 1469. Statements may be Oral as well as
Written.
3. Testimonial Qualificatious and Other
Independent Rules of Evidence
and Substantive Lavr.
§ 1471. Testimonial Qualifications.
§ 1472. Authentication.
§ 1473. Tenant's Statements used against
Landlord's Title.
§ 1474. Principal's Statements as against
Surety.
§ 1475. Diiitinction between Statements
against Interests, Admissions, and Confessions.
4. Arbitrary Iiimltations.
§ 1476. History of the Exception ; Statement
of Fact against Penal Interest excluded ; Con-
fessions of Crime by a Tliird Person.
§ 1477. Same : Policy of this Limitation.
§ 1455. In general ; Statutes. This exception may be traced back as early
as any of the others, namely, to the early 1700s. The historical development
can be more particularly noted under certain details of the rule (post, §§ 1464,
1476). The exception presupposes, like most of the others, first, a Necessity
for resorting to hearsay {ante, § 1421), i. e. the death of the declarant, or some
other condition rendering him unavailable for testimony in court; and,
secondly, a Circumstantial Guarantee of Trustworthiness {a^ite, § 1422), —
in this instance, the circumstance that the fact stated, being against the
declarant's interest, is not likely to have been stated untruthfully. There is
also to be considered {ante, § 1424) the bearing of other independent rules of
evidence ; and finally, there are certain arbitrary limitations resting on no
reason at all.
In a few jurisdictions there are statutory enactments purporting to deal
with this exception.^ They are, however, for the most part obstructive or
1 Cal. C. C. P. 1S72, § 1946 <" The entries "1, When the entry was made against the in-
and other writings of a decedent, made at or terest of the person making it") ; § 1853 ("The
near the time of the transaction and in a position declaration, act, or omission of a decedent, bav-
to know the facts stated therein " are admissible ing sufficient knowledge of the subject, against
1820
1455-1477] STATEMENTS AGAINST INTEREST.
§ 1456
confusing rather than helpful, for they either merely restate, in a form too
concise to be useful, the established common-law rule, or they mingle in
inextricable confusion certain fragments of this and other exceptions. Their
specific contributions to the details of the exception may be noted under the
respective details.
There was a time when the present exception was by some supposed not
to exist in this country at all ; ^ but even at that time it had in fact received
recognition in sundry rulings ; and it is to-day everywhere fully accepted,
except perhaps in the courts of Maine.^
1. The Necessity Principle.
§ 1456. Death, Absence, Insanity, etc., as making Witness Unavailable.
The Necessity Principle (ante, § 1421), ks here applied, signifies the impos-
sibility of obtaining other evidence from the same source, the declarant being
unavailable in person on the stand. Whenever the witness is practically
unavailable, his statements should be received. • Death is universally conceded
to be sufficient :
1833, WUliams, J., in Fitch v. Chapman, 10 Conn. 11 : " The cases where such evidence
is admitted seem to proceed generally upon the principle that, by the decease of the per-
son, better evidence cannot be had." ^
The principle of necessity is broad enough to assimilate other causes ; but the
rulings upon causes other than death are few. They are ill-judged, so
far as they do not recognize the general principle of unavailability. Illness ^
and insanity ^ should be equally sufficient to admit the statements ; as well
his pecuniary interest, is also admissible as evi-
dence to that extent against his successor in
interest") ; § 1870, par. 4 ("The act or declara-
tion of a deceased person, done or made against
his interest in respect to his real property " is
admissible) ; Ga. Code 1895, § 5180 ("Declara-
tions of a person in possession of property, in
disparagement of his own title, are admissible in
favor of any one, and against privies ") ; § 5181
( " The declarations and entries of a person, since
deceased, against his interest, and not made with
a view to pending litigation, are admissible in
evidence in any case ") ; Ida. Kev. St. 1887,
§ 5996 (like Cal. C. C. P. § 1946) ; la. Code
1897, § 4622 (like Cal. C. C. P. § 1946) ; Mont.
C. C. P. 1895, §§ 3129, 3146, par. 4, 3237 (like
Cal. C. C. P. §§ 1853, 1870, par. 4, 1946) ; Nebr.
Comp. St. 1899, § 5919 (like Cal. C. C. P.
§ 1946); Or. C. C. P. 1892, §§ 689, 706, par. 4
(like Cal. C. C. P. §§ 1853, 1870, par. 4);
§ 767 (like Cal. C. C. P. § 1946, inserting after
"deceased" "or withont the State," and after
" writings," " of a like character ") ; Utah Rev.
St. 1898, § 3406 (like Cal. C. C. P. § 1946).
^ Smith's Leading Cases, American notes,
1st ed., II, 233 (1844), 8th ed., II, 381. It
was also ignored, not repudiated, in a few early
cases, such as Longeneoker v. Hyde, 6 Binn. 1
(1813).
s 1886, Libby «. Brown, 78 Me. 492, 7 Atl.
114.
1 1815, Manby v. Curtis, 1 Price 229 ; 1839,
Phillips V. Cole, 10 A. & E. 106 ; 1825, Bar-
rows V. White, 4 B. & C. 328 ; 1829, Spargo o.
Brown, 9 id. 936, semble; 1855, Papendick v.
Bridgwater, 5 E. & B. 178 ; 1896, Bei-trand v.
Heaman, 11 Man. 205, 210 ; 1884, Trammell
V. Hudmon, 78 Ala. 223 ; 1864, Mahaska Co. v.
Ingalls, 16 la. 81 ; 1860, Currier v. Gale, 14
Gray 504 ; 1860, Webster v. Paul, 10 Oh. St.
636 ; 1846, Lowry v. Moss, 1 Strobh. 64 ; 1840,
Davis V. Fuller, 12 Vt. 189. In two early Nisi
Prius rulings, long outlawed by time and Is^ter
cases, the statements of living witnesses were
admitted : 1795, Walker w. Broadstock, 1 Esp.
458 ; 1803, Doe v. Rickarby, 5 id. 4.
* Contra, 1813, Harrison v. Blades, 3 Camp.
458 (the declarant had suffered an apoplectic fit
and was by physicians said to be in extremis ;
EUeuborough, L. C. J. : " No case has gone so
far [as to admit such evidence] and I am afraid
to establish a precedent. It is difficult to deter-
mine when a patient is past all hope of cure. It
such a relaxation of the rules of evidence were
permitted, there would be very sudden indispo-
sitions and recoveries ").
3 1864, Mahaska Co. v. Ingalls, 16 la. 81,
semble; 1881, Jones v. Henry, 84 N. C. 324.
1821
§ 1456 EXCEPTIONS TO THE HEAESAY RULE. [Chap. XLVIII
as absence from the jurisdiction} Supervening incompetency through interest
stands on the same ground.^
The written receipt of a third person, acknowledging payment of money, is
undoubtedly a statement of a fact against interest (post, § 1461) ; but it can-
not be received, under the present principle, unless the receiptor is deceased
or otherwise unavailable.^
2. The Circumstantial Guarantee.
§ 1457. In General Principle. The basis of the exception is the principle
of experience that a statement asserting a fact distinctly against one's in-
terest is entirely unlikely to be deliberately false or heedlessly incorrect,
and is thus sufficiently guaranteed, though oath and cross-examination are
wanting :
1861, Blackburn, J., in Smith v. Blakey, L. R. 2 Q. B. 326 : "When the entries are
against the pecuniary interest of the person making them, and never could be made avail-
able for the person himself, there is such a probability of their truth that such statements
have been admitted after the death of the person making them."
1879, Fitzyibbon, C. J., in Lalorsi. Lalor, 4 L. R. Ire. 681 : " The interest against which
the statement appears to be made ... [is required] in order to supply that sanction which,
after the death of the party, is accepted as a substitute for an oath."
1832, Rogers, J., in Gibblehouse v. Stong, 3 Rawle 437: "The principle is founded on
a knowledge of human nature. Self-interest induces men to be cautious in saying any-
thing against themselves, but free to speak in theii own favor. We can safely trust a
man when he speaks against his own interest."
1841, Gibson, C. J., in Addams v. Seitzinger, 1 W. & S. 244 : " [It rests on] the principle
which allows entries or memorandums which were prejudicial to the interest of the writer
to be evidence, . . . thus substituting for the sanction of a judicial oath the more power-
ful sanction of a sacrifice of self-interest."
1879, Cofer, J., in Mercer's AdrrCrv. Mackin, 14 Bush 441: "Experience has taught
us that when one makes a declaration in disparagement of his own rights or interests it
* 1826, Shearman v. Atkins, 4 Pick. 293 ; signed by tenants, to show that the offering
1903, Pound, C, iu South Omaha «. Wrzenslii- party was owner, excluded); 1885, Ferris v.
ski, — Nebr. — , 92 N. W. 1045 (in a concur- Boxell, 34 Minn. 262, 25 N. W. 592 (receipt of
ring opinion ; admitting the letter of a city clerk third person is not evidence ; nor made so by
absent from the jurisdiction) ; Doubting: 1851, a statute exempting it from authentication if
Williams, J., in Gerapulo v. Wieler, 10 C. B. properly recorded) ; 1818, Cutbush -». Gilbert,
690, 696. Contra: 1831, Stephen v. Gwenap, 4 S. & R. 551, 555 (receipts by third persons
1 Moo. & Rob. 120 (flight of a bankrupt under not called, excluded; "his oath is better");
a criminal charge) ; 1864, Mahaska Co. v. In- 1825, Morton v. M'Glaughlin, 13 id. 107.
galls, 16 la. 81, scmble. Contra: 1796, Alston v. Taylor, 1 Hayw. N. C.
» 1841, Pugh u. McRae, 2 .41a. 394 ; 1831, 381, 395 (counsel's receipt for a bond taken to
Dwight ■». Brown, 9 Conu. 93; 1833, Fitch v. sue upon, admitted as given in "the course of
Chapman, 10 id. 11; Contra: 1825, Burton v. business"); 1853, Reed v. Rice, 25 Vt. 171,
Scott, 3 Rand. 409. 186, per Redfield, C. J. (misunderstanding Gil-
* 1844, Joplin v. Johnston, 2 Kerr N. Br. son v. Gilson, 16 id. 464, where the receipt was
641 (mortgagee's receipt for rent) ; 1839, Newell by an agent of the party). Thp following pas-
V. Roberts, 13 Conn. 63, 72 ; 1826, Shearman v. sage probably led to misunderstanding on this
Atkins, 4 Pick. 283, 293 (assumpsit by guardians point : 1842, Greenleaf, Evidence, § 147, note 3 :
against the ward's estate for money spent; re- " In auditing the accounts of guardians, admin-
ceipts for the .sums in question were admitted ; istrators, etc., the course is to admit receipts as
the referee allowing this only for such persons prima fade sufficient vouchers" ; but the an-
as were not "iilive and within the Common- thorities cited do not bear this out.
wealth"); 1896, Silverstein v. O'Brien, 165 Of course, such receipts oi & party-opponent
Mass. 512, 43 N. E. 496 (receipts for rent, would be receivable as admissions : ante, § 1049.
1822
§§ 1455-1477] STATEMENTS AGAINST INTEREST.
§ 1458
is generally true, and because it is so the law has deemed it safe to admit evidence of
such declarations." ^
The specific applications of this broad principle to the different kinds of
facts against interest come now to be considered.
§ 1458. statements predicating a Iiimited Interest in Property. A state-
ment predicating of oneself a limited interest instead of a complete title to
property asserts a fact decidedly against one's interest, and has always been
so regarded. In particular, assertions that one's estate is a leasehold, not a
freehold, or that one's possession is not as owner, but merely as agent or as
trustee for another, are admissible :
1861, Blackburn, J., in R. v. Birmingham, 1 B. & S. 76.3 : " Is such a statement [cutting
down an interest in realty] admissible to the same extent and for the same purposes as
where the effect of the statement is to charge the person with the receipt of money? I
neither find any distinction taken between them in any of the cases, nor can I in principle
see any. The probability that a man would speak truth (which is the reason assigned
for admitting the evidence) is equally great whether the tendency of the declaration is
to establish liability for money or to deprive a man of real estate." ^
Such statements may be used in so far as they tend to prove the matter
against interest, for example, that some other person is the owner of the
higher estate. But they could not be received to prove the matter as to
which they were not against interest, — for example, the ownership of the
limited estate asserted.^
^ So also Blackburn, J., in R. v. Birming-
ham, 1 B. & S. 763 ; Somerville, J. , in Hnmes
V. O'Bryan, 74 Ala. 79.
^ Accord : Eng. : 1796, Walker v. Broad-
stock, 1 Esp. 458 ; 1803, Doe v. Eickarby, 5 id.
4 ; 1808, Doe v. Jones, 1 Camp. 367 (whether
a locus was part of a copyhold of the defendant ;
a writing by the deceased former owner of the
copyhold, then occupying the locus, that he did
not own it but paid rent for it, was admitted
for the plaintiff) 1811, Peaceable v. Watson, 4
Taunt. 16 ; 1836, Carne v. NicoU, 1 Bing. N. 0.
430 ; 1845, Baron de Bode's Case, 8 Q. B. 243 ;
1847, Doe V. Langfield, 16 M. & W. 513 ; 1865,
Smith V. Blakey, L. R. 2 Q. B. 326 ; Can. :
1862, Powell V. Wathen, 5 All. N. Br. 258 (de-
ceased's disclaimer of title, admissible for one
charged a3 executor de son tort of the deceased) ;
U. S. : 1873, Turner v. Tyson, 49 Ga. 165, 169
(admission by the heir, of the genuineness of an
ancestor's divesting deed, received); 1892, Lamar
V. Pearre, 90 id. 377, 17 S. E. 92 (declarations
by a possessor in apparent ownership, that the
land had been purchased with trust funds from
the sale of other land, admitted) ; 1846, Doe v.
Evans, 1 Blackf. 322 (by a possessor, that he
was tenant only, admitted) ; 1867, Robinson v.
Robinson, 22 la. 427, 433 (tni-it declarations,
admitted) ; 1902, Walsh v. Wheelwright, 96 Me.
174, 52 Atl. 649 ("declarations of a deceased
occupant of land, made while occupying, in the
course of his occupation, as to the character of-
his occupation, and against his own pecuniary
interest, are admissible ") ; 1860, Cnrrieri;. Gale,
1823
14 Gray 504 (statements as to land, admitted) ;
1843, Pike v. Hayes, 14 N. H. 20 ; 1845,, Rand
V. Dodge, 17 id. 359 (declarations indicating
possession as agent or tenant merely, not owner,
admitted) ; 1880, Perkins v. Towle, 59 id. 584 ;
1894, Lyon v. Ricker, 141 N. Y. 225, 36 N. 1.
189 (conditions of delivery of a deed ; the de-
ceased grantor's declarations, while in posses-
sion, that he had made and delivered the deed
on certain conditions, admitted) ; 1880, Melvin
V. Bnllard, 82 N. C. 37 ; 1895, Swerdferger v.
Hopkins, 67 Vt. 136, 31 Atl. 153 (as to land
boundaries, admitted) ; 1890, Dooley v. Baynes,
86 Va. 644, 10 S. E. 974 (deceased possessor's
declarations that he had only a life-estate and
could not transfer a fee, admitted) ; 1901, First
National Bank v. Holland, 99 Va. 496, 39 S. E.
126 (husband's declarations of a gift to wife,
made when free from debt, admitted).
2 1897, Hollis V. Sales, 103 Ga. 75, 29 S. E.
482 (declaration by a husband that he made a
deed to his wife because he was in debt to her,
excluded, as not against interest on the ques-
tion whether the deed was for a valuable con-
sideration).
In Crease v. Barrett, 1 C. M. & R. 931
(1835), and Pike v. Hayes, 14 N. H. 20 (1843),
a declaration as to the extent of one's laud was
said to differ from a declaration as to the limits
of ore's interest in it, and to be inadmissible.
But both must stand on the same footing ; the
former should be admitted as indicating that
neighboring estates extended at least up to the
point named. Accord: 1795, Walker y. Broad-
§ 1459 EXCEPTIOis^S TO THE HEARSAY EULE. [Chap. XLVIII
§ 1459. Same : Other Statements (Admissions, etc.), about Land, discrimi-
nated. There has been in some jurisdictions much confusion through a
failure to distinguish certain principles, distinct in themselves, but all find-
ing an application to declarations about land-possession and having only that
superficial feature in common.^ (1) If the issue involves a prescriptive title
and adverse possession, the nature of the possession alleged is important, and
' under the doctrine of Verbal Acts (post, §§ 1778, 1779) the statements and
conduct of the possessor are admissible as giving character to the possession
and indicating whether it is adverse or not. Here the statements are not
taken as assertions, and the Hearsay rule is not applicable. Their chief
limitation is that they must accompany the possession which they are sup-
posed to characterize ; but the declarant's decease is not a condition. (2) Un-
der the principle of Admissions, the statements of a farty-opponent, or his
predecessor in title, acknowledging an inferior or different title, may be used
{ante, § 1082). Here the main requirements are that the admittor must
have had title at the time, and that the admission shall be used only against
himself or his successors ; but the admittor need not be deceased before the
statement can be used. Here, too, no Hearsay exception is involved. (3) In
statements offered under the present exception to the Hearsay rule, the
declarant must be deceased. Moreover, there must have been an interest at
the time to say the contrary, but the statements may be used in any contro-
versy, without regard to the parties concerned. (4) Still dealing with Hearsay
exceptions, there are, further, two American doctrines admitting declarations
as to boundaries (treated post, §§ 1563-1570); by one of these, obtaining
generally, the declarant must not have been an interested party (for example,
an owner), and he need not have been in possession ; but by the other, in
vogue in a few Atlantic jurisdictions, he must have been an owner and must
have been on the land at the time. A more detailed analysis of the discrimi-
nations between these and other superficially related statements about land
is elsewhere made {ante, § lO'&l, post, § 1780), as well as of the distinction of
theory between statements against interest, admissions, and confessions {post,
§ 1475). There is also to be distinguished the doctrine of substantive law
forbidding a tenant to dispute his landlord's title {post, § 1473).
§ 1460. Statements predicating a Fact against Fecnniary Interest ; Indorse-
ments of Payments ; Receipts. Statements of a fact against pecuniary in-
terest furnish the greatest number of illustrations,^ and of difficulties as well.
stock, 1 Esp. 458. A unique application of the 1900, German Ins. Co. v. Bartlett, 188 111. 165,
principle is found in the following: 1855, Al- 58 N. E. 1075 (creditors' suit for property con-
legheny v. Nelson, 25 Pa. 334 ("It was against veyed to wife by deceased husband ; declarations
the interest of N. to expend his time and money by him before the transfer, that he was indebted
in taking ont a title for the land as an island, if to her, admitted) ; 1898, Keesling r. Powell, 149
it was not one. His application therefore was Ind. 372, 49 N. E. 265 (statements by a deputy-
evidence that it was an island "). treasurer that taxes had been paid in, admitted) ;
1 E. g. : 1845, Smith v. Martin, 17 Conn. 1890, Vogely v. Bloom, 43 Minn. 163, 45 N. W.
401 ; 1855, Plimpton v. Chamberlain, 4 Gray 10 (consideration for a note ; entry of a de-
321 ; 1898, Mutual Life Ins. Co. c. Ijogan, 31 ceased payee of another note, as to its discharge
C. C. A. 172, 87 Fed. 637. and the making of a new note, admitted) ;
* The following are miscellaneous instances : 1903, Quinby v. Ayers, — Nebr. — , 95 N. W.
1824
1455-1477] STATEMENTS AGAINST INTEREST.
§ 1461
Perhaps the oldest form was the account kept by a steward or hailiff of sums
collected from tenants.^ Another instance was the entry of receipt of a tithe-
payment in a vicar's books.^ Money-receipts in general have always been
conceded to fall under the rule.* Another typical instance was the indorse-
ment, on a note, a bill, or a bond, of payments received ; ° it would evidence
the payment (under this rule), and the act of payment would serve as an
acknowledgment of existing debt (or new promise) by the debtor, and this in
turn would be sufficient to remove the bar of the statute of limitations.*
Other objections, however (noted post, § 1466), impose special restrictions
on the use of this class of statements.
§ 1461. statements of Sundry Facts against Interest. There are many
facts which in their ultimate effect may be against proprietary or pecuniary
interest, though in their immediate and narrow aspect there may be no such
clear character. These facts, however, may nevertheless be facts so decidedly
against interest that no one would be inclined falsely to concede their exist-
ence. If so, on the general principle (ante, § 1457) they should therefore be
admitted. No more precise test can well be formulated, except in the sug-
gestion that the interest injured or the burden imposed by the fact stated
should be one so palpable and positive that it would naturally have been
present in the declarant's mind.^ It has by one Court been said that the
464 (deceased's statements that he wag insol-
vent, admitted) ; 1874, Livingston v. Armoux,
56 N. Y. 619 (receipt by a sheriff admitted).
^ See the citations post, § 1476.
^ 1810, Perigal v. Nicholson, 1 Wightw. 63.
* See the cases cited ante, § 1456.
'• 1728-29, Searle v. Lord Banington, 2 Stra.
826, 3 Bro. P. C. 593 ; 1900, Cunningham v.
Davis, 175 Mass. 213, 56 N. E. 2 (mortgagee's
indorsement on an original mortgage note, show-
ing discharge, admitted). A credit in an account-
book has been held not to have this effect ;
1836, Hancock v. Cook, 18 Pick. 32 ; 1886,
Libbey v. Brown, 78 Me. 792, 7 Atl. 114. Com-
pare § 1466, post.
_« 1841, Addams v. Seitzinger, 1 W. & S. 244
(Gibson, C. J. ; " It is impossible to conceive of
a motive for fahricating such a memorandum
while the right of action remains unimpaired.
To suppose that a creditor would set about the
commission of what is at least a. moral forgery,
to obviate the anticipated consequences of his
own apprehended supineness, when he might by
bringing immediate suit prevent the occuiTence
of those consequences altogether, is absurd. . . .
It is not to be supposed that a creditor could so
far mistake his interest as to sacrifice a part of
his debt to save the residue when no part of it
was in danger. It is possible that a weak man
might do so ; but it is inconsistent with the ordi-
nary course of human action ").
* The following are sundry rulings applying
the principle : Ung. : 1861, Smith v. Blakey,
L. R. 2 Q. B. 326 (a letter by a clerk, notifying
the employer of the arrival of B. 's draft, "with
three huge cases, at the office, "and going on to
state the terms of the contract with B., was re-
1825
jected ; Blackburn, J. ; " It is no more than an
admission that he has the care of the thi-ee
chests which have arrived at the office, and the
possibility that this statement might make him
liable in case of their being lost is an interest of
too remote a nature to make the statement ad-
missible in evidence ") ; 1877, Sly v. Sly, L. R.
2 P. D. 91 (declaration by one raising a loan
that his estate was a life interest under » will,
admitted to show the existence of the will) ;
1891, Flood V. Russell, 29 L. R. Ire. 96 (decla-
rations by a wife as to the existence of a will of
her husband by which she profited less than by
his intestacy, admitted) ; Can= : 1902, Yuill v.
White, 5 N. W. Terr. 275, 291 (the mere state,
ment of the terms of a contract is not of a fact
against interest) ; U. S. : 1899, Georgia R. & B,
Co. V. Fitzgerald, 108 Ga. 507, 34 S. E. 316
(wife's action for husband's death ; the hus-
band's statement of his careless conduct, ad-
mitted) ; 1901, State v. Alcorn, 7 Ida. 599, 64
Pac. 1014 (declarations as to pregnancy, by one
seeking an abortion, admitted, chiefly on this
ground) ; 1876, Ross v. McQuiston, 45 la. 147.
(a testator's declaration, when sane, that he had
not been in his right mind for twenty years, ad^
mitted) ; 1898, Moehn v. Moehn, 105 id. 710,
75 N". W. 521 (declaration by an indorser of a
note, that it was not paid and that it belonged
to his wife, held not against interest) ; 1898,
Walker v. Brantner, 59 Kan. 117, 52 Pac. 80
(action for the death of the plaintiff's husband,
a railway engineer ; declarations of the husband,
after the injury, that he could have avoided ib
by keeping a lookout, admitted) ; 1889, Hors-
ford V. Rowe, 41 Minn. 247, 42 N. W. 101 8.
(Dickinso7i, J.: "Declarations by a person to
§ 1461 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVIII
liability involved in the fact stated must not be a mere conditional or contin-
gent one.^ But this limitation cannot be supported, and would, if consistently
carried out, practically nullify the exception in this respect. The liability
to pay conditionally is none the less a liability ; moreover every contract is
subject to some conditions imposed by implication of law. The incurring of
a contract liability of any sort is on principle a fact against interest.*
§ 1462. The Fact, not the Statement, to be against Interest. It must be
remembered that it is not merely the statement that must be against interest,
but the fact stated. It is because the fact is against interest that the open
and deliberate mention of it is likely to be true. Hence the question whether
the statement of the fact could create a liability is beside the mark.^
§ 1463. Facts may or may not be against Interest according to Circum-
stances or according to the Parties in dispute. A fact thus stated may or
may not be against interest according to the circumstances. Por example,
a statement that one is iwt a partner in a certain firm states a fact which
favors one's interest if the firm is insolvent (and a deficit is therefore to be
made up), but disfavors one's interest if the firm is solvent (and profits are
thus to be shared) ; while a statement that one is a partner in the firm is for
and against interest in just the reverse situations.^
Again, the same fact may or may not be against interest according to the
parties' situation in the case in which it comes into dispute; it may be
against interest in one aspect, but in favor of interest in another.^
show that he had executed a will, or that he had (executing a note) ; 1889, Hosford o. Eowe, 41
not executed a will, or that he had revoked his Minn. 247, 42 N. W. 1018 (a husband said that
will, ... are not to be regarded, in general, he had destroyed an antenuptial agreement re-
83 declarations against interest, for the acts to serving to himself power to will awaj' from his
which the declarations relate, and the con- wife more than the statute permitted),
sequences of such acts, are wholly within the *■ This has been misunderstood in the foUow-
control of the person whose declaration is in ques- ing case: 1869, Western Maryland R. Co. v.
tion ") ; 1902, Halvorsen v. Moon & K. L. Co., Manro, 32 Md. 280 (Brent, J., rejecting a state-
87 id. 18, 91 N. W. 28 (deceased employee's ment by a collector that he had received money
statement that a fire in a room in his charge had from X. in payment of stock-subscriptions :
been caused by an act of negligence on his " How the declaration offered was against the
part, admitted ; good opinion) ; 1894, Farrell interest of M. [the collector], we have been uu-
». Weitz, 160 Mass. 288, 35 N. E. 783 (admis- able to discover. It did not create a debt or es-
sions of paternity by a deceased person, not re- tablish a liability on his part to pay a sum of
ceivable for the defendant in bastardy) ; 1896, money to any person or body corporate. It did
liucas i;. U. S., 163 U. S. 612, 16 Sup. 1168 not furnish any ground, or pretext even, upon
(a statement that the declarant did not belong which he might have been sued or proceeded
to the Choctaw Nation, excluded ; but the sub- against either in law or equity ").
ject is confused with that of Admissious) ; 1881, ^ 1857, Raines' Adm'r v. Raines' Cred'rs, 30
Tate o. Tate's Ex'r, 75 Va. 532 (a memoran- Ala. 428 ; 1883, Humes v. O'Bryan, 74 id. 79.
dum of the receipt of bonds deposited with the ^ 1883, Chase v. Smith, 5 Vt. 557 (the plain-
writer as bailee without reward, held not suf- tiff sued for services rendered when a minor ;
ficiently against interest). the defendant offered an entry in his books cred-
" 1843, R. V. Worth, 4 Q. B. 134 (the entry iting the plaintiffs services, but to his father,
was : "April 4th 1824, W. Worsell came [as who owed the defendant money, and not to the
farm-hand]; and to have for the half-year 40 s." plaintiff; it was rejected. Here the entry was
Lord Denman, C. J. : " The book here does not against his interest so far as concerned the ren-
show any entry operating against the interest of dering of the services. But that was not dis-
the party. The memorandum could only fix puted. As to whether the contract was with
upon him a liability on proof that the services the plaintiff or his father, it was obviously the
had been performed." defendant's interest to attribute it to the father,
* 1850, White 4\ Chouteau, 10 Barb. 209 against whom he had a set-off; hence on this
(incurring an obligation to reimburse a surety) ; point the entry was not against his interest).
1859, People v. Blakeley, 4 Park. Cr. C. 185
1826
§§ 1455-1477] STATEMENTS AGAINST INTEREST. § 1464
§ 1464. No Motive to Misrepresent; Preponderance of Interest; Credit
and Debit Entries. It has sometimes been said, loosely and in analogy to
other Hearsay exceptions, that there must be no motive to misrepresent ; this
being put as an additional requirement.^ But there is no such additional
requirement. The real object of this mode of statement is to furnish a
test for a not uncommon situation, — the situation in which, along with the
disserving interest, there is also a more or less palpable interest to be served
by the fact. The real question is : Shall we attempt to strike a balance
between the two opposing interests and admit the statement only if on the
whole the disserving interest preponderates in probable influence ? Or shall
we regard the disserving interest as sufficient to admit, and leave the other
merely to affect the credit of the statement ? The former alternative seems
the proper one, and is generally followed.^ It must be noted, however, that
so great a judge as Sir George Jessel has said that the latter alternative is
the proper one, i. e. the counter-interest should affect only the weight of the
evidence.^
A common illustration of this question is the use of a merchant's credit
entry of payment received (thus against his interest) which at the same stroke
has included (thus in favor of his interest) the debit entry of his claim lead-
ing to the payment ; and, conversely, an agent's debit and credit account in
which the receipts creating liability are on the whole equalled or exceeded by
the payments or credits in his favor. When, in the former case, the entry of
payment received, or, in the latter case, of an item creating liability, is sought
to be used, the argument has been made that since, taking both sides of the
account together, the writer is not left with any liability and perhaps appears
to have a claim for a balance, the matter cannot be said to be against his
interest. This argument, accepted at Nisi Prius in Doe v. Vowles,* has since
been repudiated. The answer to it is that the entrant's interest in making
1 1833, Gleadow v. Atkins, 3 Tyrw. 301 ; ' 1876, Taylor v. "Witham, L. E. 3 Ch. D.
1837, Marks v. Lahee, 3 Bing. N. C. 408, 60.5 (.Tessel, M. K. ; "It mast 'be prima facie
Vanghan, J.; 1864, County of Mahaska v. In- against his interest ; that is to say, the natural
galls, 16 la. 81 ; 1831, Gilchrist v. Martin, 1 meaning of the entry standing alone must be
Bailey's Eq. 503. against the interest of the man who made it.
* 1821, Short V. Lee, 2 Jac. & W. 477, 489 Of course, if you can prove aliunde that the
(entries by one of a college of vicars, who was man had a particular reason for making it, and
also proctor or collector, of dues for the college, that it was for his interest, you may destroy the
were objected to ; Sir T. Plumer, M. E. : value of the evidence altogether ; but the ques-
" Though the proctors were members of the body tion of admissibility is not a question of value,
of vicars, that does not affect the ground on The entry may be utterly worthless when you
which such entries are admitted ; there being get it, if you show any reason to believe that he
evidently a balance of interests, and the interest had a motive for making it, and that though
in making the entry the smallest. ... If we apparently against his interest, yet really it was
look to the setoff of the opposite interests, the for it ; but that is a matter for subsequent con-
preponderance being against making false sideration when you estimate the value of the
charges, reduces him to the situation of any testimony"). Accord: 1857, Eaines' Adm'r u.
other proctor or collector"). Accm-d: 1841, Eaines' Cred'rs, 30 Ala. 428.
Clark V. Wilmot, 1 Y. & C. 54 ; 2 Y. & C. 259, * 1833, Doe v. Vowles, 1 Moo. & E. 261 (a
note; 1862, Ganton v. Size, 22 U". C. Q. B. 483 ; receipt for payment for work done was objected
1886, Confederation Life Ass. v. O'Donnell, 13 to because the single entry of the claim and the
Can. Sup. 225, 229 ; 1895, Freeman v. Brewster, release could not be against interest, as " this
93 Ga. 648, 21 S. E. 165. Compare Massey v. left the writer just in the same situation as
Allen, L. E. 13 Ch. D. 562 (1879). before ; " this objection was sustained).
1827
§ U64 EXCEPTIONS TO THE HEARSAY EULE. [Chap. XL VIII
the favoring items does not really affect, as a counter-motive, his interest
against the individual charging-items ; the entries of the latter, taken by
themselves, are to be trusted :
1828, Rotoe v. Brenton, 3 M. & Ry. 266; it was objected by Mr. Brougham, against a
toll-keeper's book, that "where in the same document in which the charge appears, a
discharge also appears, which squares the account, or it may be leaves a balance in his
favor, then taking the whole together — both sides of the account, the charge and the
discharge, — the reason fails, because it no longer is a declaration of a party against his
own interest; it may be a declaration for his own interest " ; the argument was disap-
proved ; Littledale, J. : "A man is not likely to charge himself for the purpose of getting
a discharge"; Tenlerden, L. C. J.: "Almost all the accounts that are produced are
accounts on both sides. That objection would go to the very root of that sort of
evidence." ^
§ 1465. Statement admissible for All Facts Contained in it; Separate En-
tries. Since the principle is that the statement is made under circumstances
fairly guaranteeing the declarant's sincerity and accuracy {ante, § 1457) it is
obvious that the situation guarantees the correctness of whatever he may say
while under that influence. In other words, the statement may be accepted,
not merely as to the specific fact against interest, but also as to every fact con-
tained in the same statement} As for the limits which it thus becomes neces-
sary to set, these must be largely a matter of judgment in each case. For
the phrasing of a rough general test, different language has been used by
different judges :
1851, Pollock, C. B., in Percival v. Nanson, 7 Exch. 1 : "If the entry is admitted as
being against the interest of the party making it, it carries with it the whole statement."
1861, Blackburn, J., in Smith v. Blakey, L. R. 2 Q. B. 326 : " [It is] admissible as evi-
dence not merely of the precise fact which is against interest, but of all matters involved
in or knit up with the statement."
1869, Hayes, J., in R. v. Exeter, L. R. 4 Q. B. 344: " The principle that a declaration
against interest was evidence as to all that formed an essential part of it was long since
settled " ; here the entry " Paid Brook balance of a quarter's rent due on 24 June last,
3 I." was against proprietary interest, and was admitted to show the payment. ^
It may be doubted, however, whether for really difficult cases any additional
light is gained from such phrases as " all matters knit up with or involved
° Accord: 1838, Williams v. Greaves, 8 C. fore look to the rest of the entry, to see what
& P. 592 ; 1843, Coleridge, J., in R. v. Worth, the demand was which he thereby admitted to
4 Q. B. 134 ("Accounts are evidence, though be discharged. By the reference to the ledger,
the writer upon the whole discharges himself" ; the entry there was virtually incorporated with
here admitting an entry of payment after an and made a part of the other entry, ofwhich.it
entry of hiring and agreeing to pay) ; 1876, is explanatory."
Taylor u. Witham, L. R. 3 Ch. D. 605, perjes- ^ Further examples are as follows: 1792,
sel, M. R. The language of Gibbs, C. B., in Stead v. Heaton, 4 T. R. 670 (the receipt was
Bullen V. Michel, 2 Price 413 (1816) is indecisive acknowledged, in a town account-book, of money
as to the general principle. paid by parties disputing a customary payment ;
^ The leading case is Higham v. Ridgway, a preceding entry on the same page, describing
10 East 109 (1808) ; an entry of services ren- the apportionment of the customary dues, was
dered as man-midwife, followed by a note "pd. admitted) ; 1824, Doe v. Cartwright, Ry. & M.
25th Ocf, 1768," was admitted to show the 62; 1840, Davies v. Humphreys, 6 M. & W.
date of the child's birth ; EUenborough, L. C. J. : 153 ; 1861, R. v. Birmingham, 1 B. & S. 763
" It is idle to say that the word paid only shall (to prove the amount of rent, a declaration that
be admitted in evidence without the context, the declarant was a tenant at the rent of £20 per
which explains to what it rel'era ; we must there- year was admitted).
1828
§§ 1455-1477] STATEMENTS AGAINST INTEEEST. § 1466
in the statement," or " all that forms an essential part of it." These tests
give more or less arbitrary results. Going back to the living principle,
a more useful test appears to be this : All parts of the speech or entry-
may be admitted v?hich appear to have been made while the declarant was
in the trustworthy condition of mind which permitted him to state what was
against his interest. This being the fundamental principle, any reference to
collateral records which amounts to a repetition or an incorporation of them
would make them a part of the admissible statement.^
In any case, the line of distinction clearly excludes entries made at a sub-
sequent and separate occasion, when the original entry was complete, even
though the subsequent entry was made in the same place :
1849, Coltman, J., in Doe v. Beoiss, 7 C. B. 504 (the account-roll of a bailiff was
offered ; the entries charging himself were admitted ; the entries discharging himself by
payments were rejected) : " The reeve has no interest in speaking falsely when he is
charging himself ; but it is obviously his interest to falsify the account quoad the dis-
charging part of it. . . . Where the charging part of the account refers to the discharg-
ing part, it may be necessary to read the whole. So where the latter contains anything
explanatory of the former, that may render the whole account admissible. But that is
not the case here " ; Maule, J. : " It may be that a person, in charging himself, makes a
declaration which is not intelligible without looking at the other side of the account;
and in that case recourse must necessarily be had to both sides. . . . But the items of
discharge in the accounts in question which were not referred to in, or necessary to ex-
plain, the items of charge which were admitted and read were properly rejected. The
presumption that these entries are false is at least as strong as the presumption that the
others are true " ; Cresswell, J. . " If the discharging part of the account be necessarily
resorted to for the purpose of explaining the charging part, it may be evidence." *
§ 1466. Against Interest at the Time of the Statement ; Creditor's Indorse-
ment of Payment. The fact stated must of course have been against inter-
est at the time of the statement ; else the influence for correctness would not
operate.^ The chief application of this corollary is to indorsements of pay-
ment on bonds or notes {ante, § 1460). Here it is obviously of the highest
interest to the creditor to have the debt revived after the statutory period of
limitation or the time of presuming payment has elapsed; thus a partial
payment after that time is on the whole in his interest ; and therefore the
indorsement of payment must appear to have been made before the period
ended :
1809, EUenhorough, L. C. J., in Rose v. Bryant, 2 Camp. 322: "I think you must prove
that these indorsements were on the bond at or recently after the times when they bore
date, before you are entitled to read them. Although it may seem at first sight against
^ As was said by Coleridge, J., in Doe v. entry, which was the evidential one desired);
Wittcomb, 15 Jur. 778 (1851) : "It was a short 1840, Knight v. Waterford, 4 Y. & C. 294
mode of re-entering it, exactly the same as if it (a steward made a debit-entry of rent received
had all been written over again." and afterwards on the opposite page a credit-
* Accord ; 1830, Doe v. Tyler, 4 Moo. & P. entry of a sum paid the tenant as poor-rates ;
381 (a steward rendered an account showing a the latter entry was rejected),
balance due his employer; at the foot was a ^ Eng.: 1829, Middleton v. Melton, 10 B. &
further and subsequent entry of the payment of C. 317 ; 1851, Percival v. Nanson, 7 Ex. 1, per
the balance by him ; held, per Tindal, C. J., Parke, B. ; 1879, Lalor v. Lalor, 4 L. E. Ire.
that the foi-mer part could not bring in the last 681, per Fitzgibbon, L. J,
1829
§ 1466
EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVIII
the interest of the obligee to admit part payment, he may thereby in many cases set up
the bond for the residue of the sum secured. ... I am of opinion they cannot be
properly admitted unless they are proved to have been -written at a time when the effect
of them was clearly in contradiction to the writer's interest." ^
But in some jurisdictions the possibility of the abuse, by creditors, of the
present sort of evidence has led to its prohibition by the Legislature. This
prohibition, however, does not imply a repudiation of the principle ; it means
rather that, since the effect of the indorsement, to be against interest at the
time, depends on whether it was made before the statutory period expired,
and since the opportunity for antedating is so likely to be abused without
possibility of exposure, the whole practice is dangerous :
1882, Berry, J., in Young v. Perkins, 29 Minn. 173, 176, 12 N. W. 515: "The holder
of a note, or any person interested in it, can manufacture false evidence of part payment
as w^eil after as before the statute of limitations has in fact run against the note, and in
this way he can make out a case for himself to which the maker or his representatives
must yield, unless he or they can overcome it by opposing evidence. This seems to us to
be giving the holder an advantage to which he is not entitled, either in reason or in sound
policy or by any analogy of the law of evidence."
Such statutes therefore prohibit the use of indorsements in the creditor's
hand.^ The indorsement may, under these statutes, usually be employed if
* Cases cited ante, § 1460, and the following :
1739-40, Turner v. Crisp, 2 Str. 827 ; 1750,
Glymi V. Bank of England, 2 Ves. 43 ; 1821,
Short V. Lee, 2 Jac. & W. 488 ; 1833, Gleadow
V. Atkins, 3 Tyrwli. 301 ; U. S. : 1903, Small v.
Eose, 97 Me. 286, 64 Atl. 726 (deceased paj-ee's
entry of part payment in a cash account, dated
after the statute had begun to run, excluded
under Pub. St. 1883, e. 81, § 100, infra) ; 1819,
Roseboom v. Billington, 17 John. 185 (ex-
cluded, because not shown to have been made
before the time of limitation) ; 1871, Bland v.
Warren, 65 N. C. 373 ; 1841, Addams v.
Seitzinger, 1 W. & S. 244 (quoted anU, § 1460) ;
1855, Allegheny v. Nelson, 25 Pa. 334 ; 1823,
Gibson 0. Peebles, 2 McOord 419. The cases in
Missouri are not in accord ; 1869, Carter v.
Carter, 44 Mo. 195 (admitted ; mode of authen-
ticating the actual time of indorsement, con-
sidered) ; Contra : 1873, Phillips v. Mahan, 52
id. 197 (excluded, not citing Carter i\ Carter,
supra, and misunderstanding Koseboom v. Bill-
ington, N. Y.).
Distinguish the following : 1892, Arbuckle v.
Templeton, 65 Yt. 205, 208, 25 Atl. 1095
(action on a note, by T. and M. ; indorsement
by the plaintiff before statutory bar, of $50
received from T., excluded, because not made
on personal knowledge).
Where the obligee is not deceased, the in-
dorsement can of course not be put in, by reason
of the principle of § 1456, ante; this was the
case in Gupton v. Hawkins (1900), 126 N. C.
81, 35 S. E. 229. But this decision exhibits
the fallacy of ignoring the principle of this
section ; for the Court declares the indorsement
of a deceased obligee admissible when offered by
the obligor as being "a declaration against in -
1830
terest," and yet inadmissible for the obligee
because a "declaration in his favor." Now the
time to be considered is the time of making,
and if it is then a declaration against interest
(as it is when the statute has not run), it is
always admissible. Admissibility does not here
depend on whether the obligor or the obligee
happens afterwards to be the offering party.
The obligee cannot offer it if he is living, for the
reason of § 1456, ante; but if he is deceased his
repiesentative may do so ; and if that had not
been the case, many of the foregoing precedents
on this subject would not be in existence.
» Ung. : 1828, St. 9 Geo. IV, c. 14, § 3
( " No indorsement or memorandum of any pay-
ment written or made [hereafter] . . . upon
any promissory note, bill of exchange, or other
writing, by or on behalf of the party to whom
such payment is made, shall be deemed suf-
ficient proof of such payment, so as to take the
case out of the operation of either of said statutes
[of limitation] ") ; B. C. Eev. St. 1897, c. 123,
§ 14 (similar) ; Ne.wf. Consol. St. 1892, c. 85,
§ 5 (similar) ; N. Sc. Eev. St. 1900, c. 167, § 8
(similar) ; Ont. Eev. St. 1897, c. 146, § 4
(similar) ; Me. Pub. St. 1883, c. 81, § 100 (like
the English statute, with the words " or pur-
ports to be made " inserted after the words
"payment is made"); this statute began as
Eev. St. 1841, c. 146, § 23, and changed the
rule as laid down in 1835, in Coffin v. Bucknnm,
12 Me. 471 ; compare § 1460, ante; Mass. Pub.
St. 1882, c. 197, § 16, Rev. L. 1902, c. 202, § 13
(substantially like the Maine statute) ; this
statute began as St. 1834, c. 182, § 3, and
changed the rule as recognized in 1836, in
Hancock v. Cook, 18 Pick. 32 (where the rule
was not directly involved, and the entry was
1455-1477] STATEMENTS AGAINST INTEREST.
1469
the debtor assented to it ; but in that case it is dealt with directly as an ac-
knowledgment by the debtor himself, and not as the creditor's entry against
interest*
§ 1467. Statement to be made Ante Litem Motam. It is sometimes said
that the statement (as in other hearsay exceptions) must have been made
before litigation began.^ But this is only saying that the declarant's partisan
attitude during litigation must be regarded as counterbalancing the interest
prejudiced by the fact stated {ante, § 1464). This, however, might not be so
in a given instance, and each case should be judged on its merits.
§ 1468. Disserving Interest to be shoivn by Independent Evidence. The
fact that the matter stated was against interest must be shown by independ-
ent evidence,^ — like every fact preliminary to the introduction of testimony.
§ 1469. statement may be Oral as -well as Written. An oral statement of
fact against interest is admissible.^ It was early held in Massachusetts that
the statements must be written, not oral, and furthermore must be in the
form of account entries or formal documents, not mere letters.^ But this
distinction is wholly devoid of support in either principle or precedent, and
no attempt has elsewhere been made to introduce the distinction. Moreover,
oral declarations against proprietary interest are freely admitted in the same
jurisdiction of Massachusetts.^
dated in 1816); Vt. St. 1894, § 1216 (the in-
dorsement mast be in payor's hand ; applicable
to all writings).
The same object has been attained, in one
State, by the judicial construction of a permis-
sive statute: Minn. Gen. St. 1894, § 5752 ("An
indorsement of money received, on any promis-
sory note, which appears to have been made
when it was against the interest of the holder to
make it, is prima facie evidence of the facts
therein contained ") ; 1882, Young v. Perkins,
29 Minn. 173, 12 N. W. 515 (under the above
statute, there must be other evidence than the
mere purport of the indorsement that it was
actually made at the time when it was against
interest ; quoted supra).
Uote that these statutes merely forbid the
use of the indorsement as showing an acknowl-
edgment sufficient to take the debt out of the
statute of limitations. Its use to indicate a
part-payment which relents the preswmption of
payment after a certain lapse of time (post,
§ 2517) seems still to remain.
* There are also statutes, generally in vogue,
which forbid the limitation to be removed ex-'
cept by an express acknowledgment ov new promise
in writing ly the debtor ; the effect is to cut off
the use of the implied acknowledgment found in
a payment by the debtor, and thus indirectly to
result ei]ually in the exclusion of the creditor's
entry i the following is an example ; Conn. Gen.
St. 1887, § 1094 (in actions against deceased
persons, the acknowledgment or new promise
must be in writing made or signed by the party
to be charged) ; 111. Rev. St. 1874, c. 83, § 16
(the new promise or the payment must be
" made in writing "). But in some jurisdictions
the statute which thus requires writing for an
1831
express acknowledgment or promise makes
special provision for the survival of the common-
law rule as to implyiiig an acknowledgment or
promise from a payment; and it is thus that
the creditor's entry still becomes available ; for
example : S. C. C. C. P. 1893, § 131 (the
acknowledgment or new promise must be in
writing; but "payment of any part of prin-
cipal or interest is equivalent to a promise in
writing "). Then, of these statutes, a few make
the additional I'estriction on creditors' entries,
already noticed above, in note 3 ; thus : Mass.
Pub. St. 1882, c. 197, §§ 15, 16; Kev. L. 1902,
c. 202, §§ 12, 13 (the acknowledgment or promise
must be " in some writing signed by the party
chargeable " ; yet this shall not " alter the effect
of a payment of principal or interest " ; but
"no indorsement . . . by the party to whom
such payment has been made . . . shall be
deemed sufficient proof of the payment").
1 Ga. Code, 1895, § 5181 (quoted anU,
§ 1455) ; 1864, Mahaska Co. v. Ingalls, 16
la. 81.
1 1831, Davies v. Morgan, 1 C. & J. 591.
1 1861, R. 17. Birmingham, 1 B. & S. 768.
^ 1824, Framingham Mfg. Co. v. Barnard, 2
Pick. 532 (Parker, C. J. : " The case of verbal
declarations or of letters is totally different [from
book-entries], the first being easily misappre-
hended and misrepresented, and the second be-
ing too easily fabricated, to make them safe
sources of evidence"); 1840, Lawrence v. Kim-
ball, 1 Mete. 527. See, also, Phillips on Evi-
dence, Cow. & H.'s Notes, 260 (1843). The
doubt on this point in the English case of Furs-
don V, Clogg (1842), 10 M. & W. 572, never had
any foundation.
3 1851, Marcy v. Stone, 8 Cush. 9 ; 1852,
§ U71 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVIH
3. Testimonial Qualifications, and Other Independent Rules of Evidence and
Substantive La-w,
§ 1471. Testimonial Qualifications. ' (a) The qualifications of the declarant
{ante, § 1424) with reference to Testimonial Knowledge of the fact stated are
those of the ordinary witness ; the phrases of different judges vary.^ It has
once or twice been loosely said that the declarant must have " peculiar knowl-
edge ; " but so far as this may mean a knowledge better than that ordinarily
required of witnesses, i. e. the usual knowledge by personal observation {ante,
§ 656), it is not law. (b) The statement must also, conformably with the
principles of Testimonial Narration {ante, §§ 766, 789, 811), distinctly import
the fact of which it is offered as an assertion.^
§ 1472. Authentication. The principles of Authentication (post, §§ 2129-
2169) must appear to have been satisfied. In particular, {a) a written entry
must be clearly shown to have been executed by the person alleged to be the
declarant.^ Either the signature or the body of the entry must be in the
declarant's handwriting ; but not necessarily both.^ (6) Documents thirty
years old may be assumed, under the usual conditions {post, § 2137), to be
authentic.^ (c) So, too, the rule about producing originals {ante, § 1179), and
all other rules applicable to proof of writings, may be invoked.
§ 1473. Tenant's Statements used against Landlord's Title. The rule of
substantive law, that a tenant may not dispute by plea or by claim the
superior right of his landlord, has occasionally been erroneously applied in the
Stearns v. Hendersass, 9 id. 502 ; 1860, Currier placed against names) ; 1847, Doe v. Langfield,
a. Gale, 14 Gray 504. 16 M. & W. 514 (the assertion of an estate " by
^ 1812, Ellenborough, L. C. J., in Doe». Rob- life-interest" only was regarded as ambiguous
son, 15 East 34 (" a competency in them to know and inadmissible). In Doe v. Burton, 9 C. & P.
it"); 1821, Plumer, M. R., in Short v. Lee, 254 (1840), an entry of payment from B. for
2Jao. & W. 488 ("persons having a competent building a cottage was held not receivable to
knowledge, or whose duty it was to know ") ; prove that B. built the cottage.
1826, Eldon, L. C, in Barker v. Ray, 2 Russ. ^ 1821, Short v. Lee, 2 Jac. & W. 467
76 ("persons who have a complete knowledge of (Plumer, M. R.. : "In all these cases [of books
the subject") ; 1829, Parke, J., in Middleton v. by bailiffs, etc.], the fii-st point is to prove the
Melton, 10 B. & C. 317 ("a party cognizant of character of the individnal who wrote them ; if
a fact") ; 1833, Gleadow v. Atkins, 3 Tyrw. 302 you fail in this they cannot be evidence. . . .
(Bayley, B., "a person having peculiar means In all the private relations of life you do not
of knowledge" ; Vaughan, B., "having peculiar presume the existence of the particular charac-
knowledge of the fact at the time," " with per- ter, uor does a person's acting in that character
feet cognizance of the fact") ; 1837, Marks o. prove that he possessed it. . . . It would let in
Lahee, 3 Bing. N. C. 420 (Park, J., " means a dangerous latitude if the Court were once to
of knowledge " ; Vaughan, J. ("full knowledge dispense with that which is an essential prellm-
of the transaction ") ; 1851, Parke, B., in Per- inary before any writing, not verified on oath,
cival ». Nanson, 7 Ex. 1 ("peculiar means of can be made evidence, and which must be estab-
knowing a fact"); 1864, Dillon, J., in Mahaska lished aliunde." In general, add: 1808, Doe v.
Co. V. Ingalls, 16 la. 81 ("a matter concerning Lord Thynne, 10 East 209 ; 1815, Manby v.
which the declarant was immediately and per- Curtis, 1 Price 228; 1816, Bullen v. Michel, 2
sonally cognizable [sic .'] "). In Bird k. Hueston, Price 427; 1835, Baron de Rutzen v. Farr, 4
10 Oh. St. 423 (1859), the declarations were re- A. & E. 56 ; 1849, Doe u. Beviss, 7 C. B. 486.
jeoted of one who was H.'s son, attorney, and Compare the cases cited post, § 2144.
business agent, because the statements con- * 1792, Barry v. Babbington, 4 T. R. 514
cerned services i-endered H. as manager of a (Kenyon, L. C. J. : "If the entry be not in the
farm and distillery ; the ruling is far-fetched. handwriting of the steward, undoubtedly it
* 1810, Haddow v. Parry, 3 Taunt. 303 (a must be signed by him ; but hero all these
bill of lading signed " contents unknown " was entries were written by the steward himself ").
rejected as being in effect no declaration of what Accord: 1833, Doe v. Stacey, 6 0. & P. 139 ;
the chests contained) ; 1829, Plaxton v. Dare, 1831, Dwight v. Brown, 9 Conn. 93.
10 B. & C. 19 (payment indicated by crosses ' 1821, Wynne v. Tyrwhitt, 4 B. & Aid. 376.
1832
§§ 1455-U77] STATEMENTS AGAINST INTEKEST. § 1475
domain of Evidence, and has been supposed to forbid, as a rule of evidence,
the use of a tenant's declarations against his proprietary interest, so far as
they tend to cut down the landlord's right.^ It is difiScult to see how such
an application can be invoked. The inexpediency of allowing tenants to
litigate against titles which they have, by implication, agreed to accept as
good, has nothing to do with the desirability of using the evidence of a deceased
tenant, in a litigation to which he is not a party and on a matter as to which
he has knowledge and has made a trustworthy statement.^
§ 1474 Principal's Statements used against Surety. It was once ruled that
the statements of a deceased principal debtor against his interest could not
be used against the surety.^ This came from a confusion of the rule concern-
ing Admissions, which may be used only against parties or privies in interest,
with the present Hearsay exception, which has in fact nothing to do with
such restrictions. But the error has been corrected by the repudiation of the
earlier ruling.^
§ 1475. Bistinction between Statements against Interest, Admissions, and
Confessions. (1) A statement of a fact against interest is receivable on the
ground that such a statement is one which would not be made unless truth
compelled it, and that it is therefore as trustworthy as if made on the stand
under cross-examination (ante, § 1457).
(2) But is not a statement by a party-opponent credited for substantially
the same reason ? Such certainly is the fact, in most instances of the sort
(ante, §§ 1048, 1049). Why, then, is not a party's admission merely one sort
of the statements against interest receivable under the Hearsay exception ?
Such is the notion often found judicially advanced, especially in the earlier
rulings, when the principle of the present exception was not fully established.
But there are two decisive answers which demonstrate its fallacy, (a) In
the first place, under modern law, the party-opponent in a civil case may
be summoned as a witness ; if, then, the Hearsay exception be invoked, the
opponent's extrajudicial statements are inadmissible, unless he is shown to
be deceased or otherwise unavailable, — as every other declarant must be, in
order that his statements against interest may be received (ante, § 1456). But
this is never required as preUminary to using an opponent's admissions
(ante, § 1049) ; hence, it is clear, they enter independently of the present
Hearsay exception, (b) Secondly, an opponent's admission is receivable even
though the fact as stated by him was then not against his interest, *'. e.
even though he was then making a claim in his favor. This principle (ante,
§ 1048) shows clearly that opponents' admissions, though they are usually
of facts then against their interest, need not be ; and thus, again, their use
rests ori a principle distinct from that of the present exception to the
Hearsay rule.
1 1855, Papendick v. Bridgwater, 5 E. & B. ^ 1821, Goss v. Watlington, 4 B. & B. 138.
176. 2 1829, Middleton v. Melton, 10 B. & C. 317 ;
2 1894, Lyon v. Ricker, 141 N. Y. 225, 36 1864, Mahaska Co. v. lugalls, 16 la. 81 ; 1833,
N. E. 189 (Papendick v. Bridgwater commented Hiukley v. Davis, 6 N. H. 210 ; 1811, As-
oii). signees of S. v. Boucher, 2 Wash. C, C. 473.
1833
§ 1475 EXCEPTIONS TO THE HEARSAY EULE. [Chap. XLVIII
(3) The statements of an accused in a criminal case may be either con-
fessions, in the narrow sense, or admissions, in the broader sense ; the
distinction has already been examined {ante, §§ 816, 1650). So far as they
are admissions {i.e. of facts not necessarily against interest, but merely
inconsistent with his present defence), they enter like the admissions of a
civil opponent ; the first distinction above {a) does not apply, because the
accused cannot be called to the stand by the prosecution ; but the second
distinction (&) does apply, for exculpatory statements of facts not at the
time against his interest are nevertheless admissible {ante, § 821). But so
far as his statements are direct confessions of crime, they fulfil both the
main requirements of the present exception ; the declarant is not available
as a witness for the prosecution, and the fact of the crime as confessed
is directly against his interest. Thus, the direct confessions of an accused
person are receivable, not only as included in the general principle of
Admissions {ante, § 1048) but also as covered by the doctrine of the
present exception to the Hearsay rule. This particular aspect of them,
as the chief source of their credit, has been dwelt upon by many judges
and jurists.^ It is worth emphasizing here, because it shows the fallacy
of the supposed exclusion {post, § 1476), under the present exception, of
statements of facts against penal interest.
4. Arbitrary Iiimitations.
§ 1476. History of the Exception; Statement of Fact against Penal In-
terest, excluded ; Confessions of Crime by a Third Person. It is to-day Com-
monly said, and has within two generations been expressly laid down by
many judges, that the interest prejudiced by the facts stated must be either
a pecuniary or a proprietary interest, and not a penal interest. What ground
in authority there is for this limitation may be found by examining the his-
tory of the Exception at large.
The Exception appears to have taken its rise chiefly in two separate rivu-
lets of rulings, starting independently as a matter of practice, but afterwards
united as parts of a general principle. On the one side, it early became cus-
tomary, shortly after the Hearsay rule was established {ante, § 1364) to
^ The following are only , a few of many ter established than that a free and voluntary con-
instances: 1726, Gilbert, Evidence 137 ("As fession is deserving of the highest credit ; for it
persons interested are utterly removed from be- is not to be presumed that one will falsely accuse
ing evidence for want of integrity, so on the himself of a crime especially when he knows that
other side the voluntary confession of the party a conviction of it will incur a forfeiture of his
in interest is reckoned the best evidence ; for if life ") ; 1847, State v. Cowan, 7 Ired. 246 (Ruffin,
a man's swearing for his interest can give no C. J,, "[We may] proceed upon the common
credit, he must certainly give most credit when experience of men's motives of action and of
he swears against it") ; 1791, Lambe's Case, 2 the tests of truth. Now few things happen
Leach, Cr. L., 3d ed., 628 (Grose, J., for the twelve seldomer than that one in the possession of his
judges: " Confessions of guilt . . . are at com- understanding should of his own accord make a
mon law received in evidence as the highest and confession against himself which is not true") ;
most satisfactory proof of guilt, because it is 1875, Levison o. State, 54 Ala. 525 (Briokell,
fairly presumed that no man would make such a C. J.: "The confession is admissible on the
confession against himself if the facts confessed presumption that a person will not make an un-
were not true ") ; 1846, State f. Kirby, 1 Strobh. true statement criminating himself and mili-
156 (Evans, J. : "There is no legal principle bet- tating against his own interest ").
1834
§§ 1455-U77] STATEMENTS AGAINST INTEREST. § 1476
receive in evidence the account-entries of a deceased person's (particularly
a bailiff or steward) charging himself with the receipt of money.^ No
distinct reason appears to have been expressed ; but the practice was well-
estabhshed, and its traces as an independent doctrine are found at a late
period.^ Analogous to this, and yet in origin probably independent, were
the practices, already referred to (ante, § 1460), of receiving entries in a
vicar's tithe-book and indorsements of payments on notes and bonds. On
the other side, a practice obtained, in an independent series of rulings, of re-
ceiving declarations, usually oral, in disparagement of one's proprietary title.*
These lines of precedent proceeded independently till about the beginning
of the 1800s, when a unity of principle came gradually to be perceived and
argued for> This unity lay in the circumstance that all such statements, in
that they concerned matters prejudicial to the declarant's self-interest, were
fairly trustworthy and might therefore (if he were deceased) be treated as
forming an exception to the Hearsay rule. This broad principle made its
way slowly. There was some uncertainty about its scope ; but it was an un-
certainty in the direction of breadth ; for it was sometimes put in the broad
form that statements by a person " having no interest to deceive " would be
admissible. This broad form never came to prevail. But acceptance was
gained, after two decades, for the principle that all declarations of facts
against interest (by deceased persons) were to be received. What is to
be noted, then, is that from 1800 to about 1830 this was fully understood as
the broad scope of the principle. It was thus stated without other qualifi-
cation ; and frequent passages show the development of the principle to
this point.*
* 1737, Manning v. Lechmere, 1 Atk. 453 field, C. J. : " The evidence ought to have heen
(reutiil-roU receipts by bailifTs) ; 1792, Ban-y v. received. . . . The admission, supjiosed to have
Behbington, 4 T. R. 514 (steward's receipts) ; been made by Mrs. W., was against her own
] 792, Stead v. Heaton, 4 T. E. 670 (town ac- interest."
count-books). " In 1808, Lord Ellenborough speaks (High-
2 1811, Holladay !). Littlepage, 2Munf. 320; am v. Kidgway, 10 East 109) of "the broad
1815, Manby u. Curtis, 1 Price 229 ; 1832, principle on which receivers' books have heen
Ward V. Pomfret, 5 Sim. 475. admitted, namely, that the entry made was in
^ 1787, Daviesu. Pierce, 2 T. R. 54 (declara- prejudice of the jiarty making it." In Roe v.
tions of tenancy by lessees) ; 1808, Doe v. Jones, Rawlings, 7 East 290 (1806), the same judge haf
1 Camp. 367 (charging one's self with rent due), said that " there are several instances in the
* The case by which the argument was in- books where the declaration of a person having
spired was Warren v. Greenville, 2 Stra. 1129 no knowledge of a fact and no interest to falsify
(1740) ; to show the fact of a surrender of a life- it, has been admitted as evidence of it alter his
estate, the hooks of a deceased attorney, charg- death." He then goes on to point out that in
ing for eervices in drawing and engrossing the the case in hand there was even an interest that
surrender, and acknowledging payment therefor, would be injured by the fact .stated. Kut he
were admitted ; "it was a circumstance material makes no distinct separation, as a class, of state-
upon the inquiry into the reasonableness of pre- nients against interest. Yet in 1811 (Stanley
suming a surrender; and not [to] be suspected to v. White, 14 East 341) he appears to recognize
be done for this purjiose ; that if E. was living such a class. In 1812 again (Doe v. Robson,
he might undoubtedly be examined to it, and 15 East 34), he phrases it that "the ground
this was now the next best evidence." But upon which this evidence has been received is
the broad argument seems not to have been that there is a total absence of interest! ... to
deliberately recognized until 1808, in Ivat v. pervert the fact." Bayley, .T,, in the same case.
Finch, 1 Taunt. 141 ; here, the plaintiffs ac- however, puts it as " an established principle of
f|uisition of ownership from the deceased W. evidence," that the entries are admissible " be-
being in issue, W.'s declaration that she had cause it is against his own interest." But the
given the jiroperty to him was admitted ; Mans- broadest foim never obtained acceptance. In
VOL. 11. — 53 1835 N
§1476
EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVIII
But in 1844, ia a case in the House of Lords, not strongly argued and not
considered by the judges in the light of the precedents, a backward step was
taken and an arbitrary limit put upon the rule. It was held to exclude the
statement of a fact subjecting the declarant to a criminal liability, and to be
confined to statements of facts against either pecuniary or proprietary interest.^
Thenceforward this rule was accepted in England ; ' although it was plainly a
novelty at the time of its inception ; for in several rulings up to that time
such statements had been received.^ The same attitude has been taken by
many American Courts,^ excluding confessions of a crime, or other statements
1826, in Barker v. Riy, 2 Russ. 76, where the
counsel had argued as if the rule required merely
"total absence of interest" (in Lord Ellen-
boroush's words), Lord Eldon said : " The only
doubt I have entertaiueil was as to the position
that yon are to receive evidence of declarations
where there is no interest. At a certain period
of my professional life, I should have said that
tli;it doctrine was quite new to me. I do not
mean to say more than that I still doubt con-
cerning it." Thenceforward, however, and up
to the fourth decade of the century, the phrase
"against interest" was used without liihitation.
Bayley, B., says, in 1829 (Middleton v. Melton,
10 H. & C. 317): " It is a general principle
of evidence, that declarations or statements of
deceased persons are admissible when they ap-
pear to have been made against their interest."
Littledale, J., in the same case, speaks of
" this general priuciiile, that where a person has
peculiar means of knowing a fact, and makes
a declaration or written entry of that fact,
which is against his interest at that time, it is
evidence of the fact as between third persons
after his death." Parke, J., uses identical
language.
6 1844, Sussex Peerage Case, 11 CI. & F. 109
(declarations of a clergyman that he had per-
formed a marriage which would subject him to
a prosecution were rejected ; Lyndhurst, L. C. :
"A is indicted for murder; B, who is dead,
made while living a declaration that he was pres-
ent at the murder ; that declaration is against
his pwn interest, and would, had he lived,
have subjected him to a prosecution. It is in
principle the very case supposed in the argu-
ment, and "it is not possible to say that such
a declaration would have been receivable in
CV1(16I1CG I
' 1844, Davis ». Lloyd, 1 C. & K. 276, Lord
Denman, C. J. ; 1855, Papendick v. Bridgwater,
5E.&B. 180,Erle,J. ("It is contended that there
is a wide and universal principle that the decla-
ration of a dead person, made against his in-
terest, is admissible. No doubt many judges do
use that language ; but I think that the prin-
ciple must be limited [giving the above limits].
. . . The argument in support of the evidence
has almost gone the length of asserting that the
declaration becomes admissible where any hope or
fear might have prompted a contrary assertion ;
but it was admitted that the rule could not go
so far ; and in the case in the House of Lords
... it wag said that the interest, to make the
1836
declaration admissible, must be either pecuniary
or proprietary ').
' These rulings were not considered in the
Sussex Peerage Case : 1660, Hnlet's Trial, 5 How.
St. 1185, 1192 (charged as being the executioner
of King Charles ; it was disputed — and has
never been clearly known — whether Gregory
Brandon, the common hangman, officiated on
that occasion, the executioner being masked ;
the defenJaiit Halet tried to prove that Brandon
did the deed; Witness: " When my lord Capell,
duke of Hamilton, and the earl of Holland, were
beheaded in Palace- Yard, in Westminster, my
lord Capell asked the common hangman, said he,
' Did you cut off my master's head ? ' ' Yes, '
saith he. ' Where is the instrument that did
it ? ' He then brought the ax. . . . My lord
Capell took the ax, and kissed it, and gave him
five pieces of gold. I heard him say : ' Sirrah,
wert thou not afraid?' Saith the hangman,
'They made me cut it off; and I had thirty
pounds for my pains ' ") ; 1 680, Hale, Pleas of
the Crown, I, 306 (" In relation to the manner
of their testimony, ... if it be a heai-say from
the offender himself confessing the fact, such a
testimony upon hearsay makes a good witness
within the statute [of treason] ") ; 1791, Standen
0. Standen, Peake 32 (a marriage-register entry
recited the publication of banns ; the clergy-
man's confession that he had married without
banns, received ; Kenyon, L. C. J., pointing
out that a false entry was a felony : " He put
himself in a dangerous situation by making
such a confession") ; 1833, Powell v. Harper,
5 C. & P. 590 (libel, charging the plaintiff with
being a receiver of stolen goods ; the declara-
tions of A that he had stolen them, received).
' The following rulings to' this effect are fur-
ther commented on post, § 1477 : Can. .- 1842,
Blair v. Hopkins, 1 Kerr N. Br. 540 (confession
of a third person that he and the plaintiff com-
mitted the felony, excluded ; here the third
person was not accounted for) ; A!a. .- 1846,
Smith V. State, 9 Ala. 995 (declarant not de-
ceased) ; 1887, Snow v. State, 58 id. 375 ; 1884,
West V. State, 76 id. 99; 1892, Welsh v. State,
96 id. 92, 11 So. 450 (confession of L., not ac-
counted for, excluded) ; Cal. : 1892, People v.
Hall, 94 Cal. 595, 30 Pac. 7 (confession of K.,
killed while escaping from arrest for the same
charge, excluded) ; Conn. : 1889, Benton v.
Starr, 58 Conn. 285, '20 Atl. 450 (bastardy;
confessions of paternity by a third person, ex-
cluded ; here his absence was unaccounted for) ;
§§ 1455-1477] STATEMENTS AGAINST INTEEEST. § 1476
of facts against penal interest, made by third persons ; although there is not
wanting authority in favor of admitting such statements.^"
Ga. : 1857, Lyon v. State, 22 Ga. 399 (declarant
not accounted for ; treated in terms of admis-
sions) ; 1880, Daniel v. State, 65 id. 199 (de-
clarant notTiccounted foi) ; 1889, Kelly f. State,
82 id. 441, 9 S. E. 171 (like the Lyon case) ;
1896, Delk v. State, 99 id. 667, 26 S. E. 752 ;
1897, Lowry v. State, 100 id. 574, 28 S. E. 419
(the third per.son lierenot accounted for); 1901,
Robinson ». State, 114 id. 445, 40 S. E. 253
(joint inilietment of R. and H. ; before trial, H.
disappeared ; his declaration confessing the kill-
ing and exonerating R., not received); Ind.:
1878, Jones v. State, 64 Ind. 473, 484 (declarant
not accounted for ; treated on the principle of
admis-sions) ; 1897, Hank v. State,- 148 id. 238,
46 N. E. 127, 47 N. E. 465 (abortion ; a letter
of the deceased asserting that she had herself
attempted to produce it, excluded) ; la. : 1902,
State V. Sale, 119 la. 1, 92 N. W. 680, 95 N. W.
193 (murder; deceased's statement that "he
was to blame," excluded, ignoring the present
point of view); Ky.: 1893, Davis w. Com., 95
Ky. 9, 23 S. W. 685 (confession of P., deceased,
"excluded); La. : 1893, State w.West, 45 La. An.
928, 929, 13 So. 173 (the confession of B.,
killed while resisting arrest for the charge, ex-
cluded) ; 1901, State v. Young, 107 La. 618, 31
So. 993 (confessions of one G., not accounted
for, held inadmissible) ; He. : 1855, Pike i'.
Crehore, 40 Me. 503, 511 (to disprove the re-
ceipt of money sent by mail, the alleged payee
oticred the confession of the letter-carrier in that
town, made while in prison, that he had taken
the money ; excluded, the letter-carrier being
presumably available as a witness) ; Md. : 1880,
Munshower v. State, 55 Md. 11, 18 (not admis-
sible, even to discredit the declarant testifying
for the State) ; Mass. : 1804, Com. v. Chab-
bock, 1 Mass. 144 (declarant not shown to be
deceased) ; 1866, Com. v. Densmore, 12 All. 537
(Bigelow,C. J., excluding declarations of the de-
ceased offered by the defence on a trial for
manslaughter : " We are not aware that the ex-
ception [against interest] has ever been extended
further, so as to render competent declarations
which are not otherwise against the interest of
the party who made them except that they
tend to throw on himself some degree of blame
or criminality in relation to a particular trans-
action and to exonerate others therefrom ") ;
1894, Eavrell v. "Weitz, 160 Mass. 288, 35 N. E.
783 (bastardy ; admission of paternity by an-
other person not accounted for, excluded) ; 1899,
Com. V. Chance, 174 id. 245, 54 N. E. 551 ;
Mich. : 1882, People v. Stevens, 47 Mich. 411,
11 N. W. 220 (one defendant in court admitted
his guilt and offered to withdraw his plea of not
guilty, yet apparently did not go on the stand ; ex-
cluded]!; Miss. . 1890, Helm v. State, 67 Miss.572,
7 So. 487 (declarations of the deceased, on a trial
for murder, inculpating himself, were offered as
declarations against interest, but rejected on pre-
cedent and also on the rather curious ground
that "how any declarant can be said to be
against the interest of a man already passed into
the other world . . . is wholly incomprehensible
by us ") ; Mo. : 1874, State v. Evans, 65 Mo.
460 (declarant not accounted for) ; 1893, State
V. Duncan, 116 id. 288, 311, 22 S. W. 699
(declaration of S., admitting the shooting,
excluded) ; 1893, State ». Hack, 118 id. 92, 98,
23 S. \V. 1089 (confession of a co-defendant, not
accounted for, excluded) ; N. Y. : 1881, Green-
field V. State, 86 N. Y. 76, 86, 88 (declarant in
court and not called) ; N. C. . 1833, State v.
May, 4 Dev. 332 (larceny ; declarant abscondcil);
1846, State v. Duncan, 6 Ired. 239 (declarant
not shown deceased) ; 1873, State v. White, 68
N. C. 168 (like State v. May) ; 1874, State </.
Hayne.s, 71 id. 84 (same) ; 1875, State v. Bishop,
73 id. 44 (same) ; Or. : 1893, State u. Fletcher, 24
Or. 295, 300, 33 Pac. 675 (murder ; confession of
a third person, who had fled, excluded) ; Tenn. :
1836, Wright v. State, 9 Yerg. 344 (declarant
not deceased) ; 1837, Ehea v. State, 10 id. 260
(same) ; 1870, Sible v. State, 3 Hi-isk. 137 (lar-
ceny ; confessions of a co-indictee, incompetent
as ajvitness, not admitted for the defendant) ;
1887, Peck v. State, 86 Tenn. 259, 6 S. W. 389
(confession of a person not accounted for, ex-
cluded) ; Ft. : 1900, State v. Totten, 72 Vt. 73,
47 Atl. 105 (indefinite confession by a third
person, not accounted for, excluded) ; Wyo. :
1896, Reavis v. State, 6 Wyo. 240, 44 Pac. 62
(perjury in testifying that C. did not commit an
assault ; confession of C, unaccounted for, not
admitted for the prosecution ; treated on the
principle of admissions).
i» 1846, Smith v. State, 9 Ala. 995, cited snprn,
(Goldthwaite, J., dissenting: "When the other
facts and circumstances connect the party with
the act, and the confession is made under cir-
cumstances which repel the suspicion of any
motive, I can see no reason why a doubtful
crime may not be thus fixed on the confessing per-
son, though the fact of that confession may tend
to exculpate another, to whom the circumstances
equally point as the guilty person ") ; 1898,
Masons' F. A. A. v. Riley, 65 Ark. 261, 45 S. W.
684 (policy on accidental death ; confession of
S., shortly after the death, that he had killed
the deceased, admitted, perhaps on the res gestce
gi-ounds, post, § 1747) ; 1860, Coleman v. Frazier,
4 Rich. L. 152 (a third person's statement that
he had stolen money was admitted ; 'O'Neall, J. :
"This is not of a matter of business, like those
spoken of in that case, but was a criminal act.
. . . The admission of such testimony arises
from necessity, and the certainty that it is true
from the want of motive to falsify. Both these
are apparent here. . . . Here we have every
guaranty of its truthfulness ^ the grave conse-
quences of infamy, and at the least ten years' im-
prisonment, woulil certainly insure the truth of
the speaker") ; 1894, Martin v. State, 33 Tex.
Cr. 317, 26 S. W. 400 (perjury in falsely testify-
ing to larceny by S. and P. ; confessions of B.
and B. that they committed the larceny,
admitted).
1837
§ 1477 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLVIII
§ 1477. Same: PoUoy of this liimitation. It is plain enough that this
limitation, besides being a fairly modern novelty, is inconsistent with the
broad language originally employed in stating the reason and principle of
the present exception {ante, §§ 1457, 1476) as well as with the settled prin-
ciple upon which Confessions are received {ante, § 1475).^ But, further-
more, it cannot be justified on grounds of policy. No plausible reason of
policy has ever been advanced for such a limitation.^ Furthermore, the
practical consequences of this unreasoning limitation are shocking to the
sense of justice ; for, in its comnionest application, it requires, in a criminal
trial, the rejection of a confession, however well authenticated, of a person
deceased or insane or fled from the jurisdiction (and therefore quite un-
available) who has avowed himself to be the true culprit. The absurdity
and wrong of rejecting indiscriminately all such evidence is patent.
The rulings already in our books cannot be thought to involve a settled
and universal acceptance of this limitation. In the first place, in almost all
of the rulings the declarant was not shown to be deceased of otherwise un-
available as a witness, and therefore the declaration would have been inad-
missible in any view of the present exception {ante, § 1456). Secondly, in
some of the rulings (for example, in North Carolina) the independent doc-
trine {ante, §§ 139-141) was applicable that, in order to prove the accused's
non-commission of the offence by showing commission by another person,
not merely one casual piece of evidence suffices but a prima facie case rest-
ing on several concurring pieces of evidence must be made out. Finally,
most of the early rulings had in view, not the present exception to the Hear-
say rule, but the doctrine of Admissions (ante, §§ 1076, 1079) that the ad-
missions of one who is not a co-conspirator cannot affect others jointly
"• The limitation is apparently supported by the prisoner whose examination it purported to
the doctrine (ante, §§ 1076, 1079) that the con- be was not attaint [he had pleaded guilty, but
fessions of an accoirvplice are not to be used by sentence had not been passed], and might there-
the prosecution against the accused except so fore be put into the box and examined as a wit-
far as they are the admissions of a co-conspira- ness, which would give the prisoner's counsel an
tor ; for A's confession implicating himself and opportunity of cross-examining her on oath " ;
B, the accused, is at least against his own penal the confession was rejected, without indicating
interest, and therefore might seem to fall under the grounds).
the present supposed principle. But (1) the in- ' The following suggestion, to be sure, is
terest of A in obtaining a pardon by confessing found : 1857, McDonald, J., in Lyon v. State,
and betraying his co-criminals is in such cases 22 Ga. 399, 401 : " All one defendant would
usually so important that, according to the doe- have to do would be to admit that his guilty ac-
trine of preponderance of interest (ante, § 1464), complice was innocent and that he himself had
the statement would not even under the present perpetrated the crime, absent himself so as to
exception be admissible ; (2) the question has enable the l)arty on his trial to have the benefit
usually been dealt with according to the doc- of his admission, and after his acquittal appear,
trine of Admissions (Tong's Case, quoted infra, demand his trial, and prove by the evidence of
note 3), and the present aspect has not been the acquitted party that he was in fact the guilty
considered; (3) the accomplice must, according person." That any jndge could believe such a
to the present exception, be shown deceased or scheme to be within the possibilities of success-
otherwise unavailable, and this showing has ful accomplishment seems curious. Besides, if
usually not been attempted in such cases ; the it were, that is no reason for refusing such evi-
foUowing case shows its application : 1832, B. dence in cases where the defendant nxay be en-
V. Turner, 1 Lew. Or. C. 119 (the confession of tirely innocent ; if the evidence in truth is not
one of the other prisoners, on examination be- concocted, as supposed by this fantastic suspi-
fore a magistrate, it was objected to, " secondly, cion, then the judge is perhaps an instrument in
that it was not the best evidence that the cir- that harshest of tortures, — the refusal to allow
cumstanoes of the case admitted of, inasmuch as an innocent man to prove his innocence.
1838
§§ 1455-1477] STATEMENTS AGAINST INTEREST. § 1477
charged.^ It is therefore not too late to retrace our steps, and to discard
this barbarous doctrine, which would refuse to let an innocent accused vin-
dicate himself even by producing to the tribunal a perfectly authenticated
written confession, made on the very gallows, by the true culprit now beyond
the reach of justice. Those who watched with self-righteous indignation the
course of proceedings in Captain Dreyfus' trial should remember that, if that
trial had occurred in our own Courts, the spectacle would have been no less
shameful if we, following our own supposed precedents, had refused to ad-
mit what the French Court never for a moment hesitated to admit, — the
authenticated confession of the escaped Major Esterhazy, avowing himself
the guilty author of the treason there charged.
' 1663, Tong's Case, Kelyng 18 ("Such con- cannot be made use of as evidence against any
fession [before a justice or a privy councillor on others whom on his examination he confessed to
examination] so proved is only evidence against be in the treason ").
the party himself who made the confession, but
1839
1480
BOOK I, PAET ir, TITLE II.
[Chap. XLIX
Sub-title n (continued): EXCEPTIONS TO THE HEARSAY RULE.
Topic HI : DECLARATIONS ABOUT FAMILY HISTORY (PEDIGREE).
CHAPTER XLIX.
§ 1480. In general ; Statutory Provisions.
1. The Necessity Principle.
§ 1481. Death, etc., of Declarant or of
Family.
2. The Circumstantial Guarantee.
§ 1482. General Principle.
§ 1483. Declarations must have heen before
Coutrovei'sy.
§ 1484. ifo Interest or Motive to Deceive.
3. Testimonial Qualifications and other
Independent Rules of Evidence.
§ 1485. (1) Testimonial Qualifications.
§ 1486. (a) Sufficiency of the Declarant's
Means of Knowledge ; General Principle.
§ 1487. Same : Declarations of Non-Kelatives.
§ 1488. Same : Kepntation in the Neighbor-
hood or Community.
§ 1489. Same : Declarations of Relatives ;
Distinctions between Different Rinds of Rela-
tives.
§ 1490. Same : Declarant's Qualifications
must be shown.
§ 1491. Same : Relationship always Mutual ;
Connecting the Declarant with Both Families.
§ 1492. Same : Relationship of lUegitimate
Child.
§ 1493. Same : Testimony to one's Own Age.
§ 1494. Same : Statements of Family History,
to Identify a Person.
§ 1495. (*) Form of the Assertion (Family
Bibles or Trees, Tombstones, Wills, etc.).
§1496. (2) Authentication; Proving Indi-
vidual Authorship.
§ 1497. (3) Production of Original Document ;
Preferred Writings.
2 and 3. Kind of Fact that may be the
Subject of the Statement.
§ 1500. General Principle.
§ 1501. Statements as to Place of Birth,
Death, etc.
§ 1602. Sundry Kinds of Facts.
4. Arbitrary Limitations.
§ 1503. Kind of Issue or Litigation involved.
§ 1480. In general ; Statutory Provisions. This is one of the oldest of the
exceptions. In the 1800s, little difficulty was made about accepting repu-
tation-evidence generally. It could hardly be otherwise when the jury-prac-
tice had just been freed (ante, § 1364) from the traditional notion that the
jury themselves represented the reputation or community-knowledge of the
neighborhood. Soon, however, the use of reputation became limited to what
had doubtless been its commonest instances, — matters of prescriptive pos-
session and of pedigree or genealogy. From the former was then developed
the exception for Eeputation to Land-Boundaries {post, § 1582); from the
latter, the present exception. Here the notion of general reputation as the
distinguishing form of the evidence has long since disappeared. The evidence
may be in the form of individual declarations ; though it may also be in the
form of family reputation. In general, the scope of the present exception
has been much enlarged during the past century in this country. Occasion-
ally a statute has attempted to define its terms.-'
1 Cal. C. C. P. 1872, § 1852 ("The declaration, tation is admissible"); §1870, par. 4 ("the act or
act, or omission of a member of a family who is a declaration, verbal or written, of a deceased per-
decedent, or out of the jurisdiction, is also ad- son in respect to the relationship, birth, mar-
missible as evidence of common reputation, in riage, or death of any person related by blood or
cases where, on (juestious of pedigree, such repu- marriage to such deceased person " is admissi-
1840
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § U81
1. The Necessity Principle.
§ 1481. Death, etc., of Declarant or of Family. The Necessity principle {ante,
§ 1421) is here satisfied by the general difficulty of obtaining any other than
traditionary evidence in matters of family history. The following passages
illustrate the accepted judicial attitude :
1806, L. C. Erskine, in Vowles v. Young, 13 Ves. 140 : " Courts of law are obliged in
cases of this kiud to depart from the ordinary rules of evidence, as it would be impossible
to establish descents according to the strict rules by which contracts are established and
subjects of property regulated, [by] r'equiring the facts from the mouth of the witness
who has the knowledge of them. In cases of pedigree, therefore, recourse is had to a sec-
ondary sort of evidence, — the best the nature of the subject will admit, establishing the
descent from the only sources that can be had."
1811, Lawrence, J., in Berkeley Peerage Case, 4 Camp. 409 : " From the necessity of the
thing, the declarations of members of the family in matters of pedigree are generally ad-
mitted, . . . [the rejection of which] would often be the rejection of all the evidence that
could be offered " ; Maiutfield, C. J. : " In matters of pedigree, it being Impossible to prove
by living witnesses the relationships of past generations, the declarations of deceased
members of the family are admitted."
1836, Story, J., in Ellicott v. Pearl, 10 Pet. 434: "In cases of pedigree, [hearsay] is
admitted upon the ground of necessity, or the great difficulty and sometimes the impossi-
bility of proving remote facts of this sort by living witnesses, . . . there being no lis mota
or other interest to affect the credit of their statement."
1886, Woods, J., in Fulkerson v. Holmes, 117 U. S. 389, 29 Sup. 915 : " This exception
has been recognized on the ground of necessity ; for as, in inquiries respecting relation-
ship or descent, facts must often be proved which occurred many years before the trial
and were known to but few persons, it is obvious that the strict enforcement in such
cases of the rules against hearsay evidence would frequently occasion failure of justice."
1891, Peckham, J., in Eisenlord v. Clum, 126 N. Y. 552, 27 S. E. 1024 : " In many cases
it will readily be seen such evidence may under the circumstances be the only evidence
which can be obtained. . . . Traditional declarations become the best evidence some-
times, when those best acquainted with the fact are dead."
It will be noticed that the language here used offers opportunity for
choice between three distinct and competing rules in the application of the
Necessity principle.
(1) First, there are references to "past generations," " many years before,"
"lapse of time," "after one generation has passed away," and the like.
These imply that the exception comes into play only where the matter is
" ancient," i. e. of a past generation ; and that therefore, on the one hand,
matters of recent occurrence may not be so proved, whether or not there are
hie) ; § 1870, par. 13 ("entries in Camily Bibles same words, following " pedigree," and then add,
or other family hooks or charts ; engravings on "of any member of such family " ) ; for the valid-
rings, family portraits, and the like, as evidence ity of these amendments, see ante, § 488 ; Ga. :
of pedigree," are admissible; see also § 1872, Code 1895, §5177 (" Pedigree, includingdescent,
par. 11, cited post, § 1580, under Reputation ;) relationship, birth, marriage, and death, may be
Commissioners' amendments of 1901 (in C. C. P. proved either by the declarations of deceased per-
§ 1852, after " pedigree," insert, "birth, parent- sons related by blood or marriage, or by general
age, age, marriage, death, or relationship" ; in repute in the family, inscriptions, ' family trees, '
C. C. P. § 1870, after "in respect to the," in- and similar evidence") ; M(mt. C. C. P. 1895,
sert as a substitute, "pedigree, birth, parentage, §§ 3128, 3146, par. 4, 11, 13 (like Cal. C. C. p!
age, marriage, death, or relationship," etc. ; in §§ 1862, 1870); Or. C. C. P. 1892, §§ 688, 706
C. C. P. § 1870, par. 13, insert at the end the par. 4, 11, 13 (like Cal. C. 0. P. §§ 1852, 1870)!
1841
§ 1481 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
living witnesses, and, on the other hand, that matters of a time whose wit-
nesses are likely to have passed away may be so proved, whether or not liv-
ing witnesses are available. But there appears to be in fact no rule of such
a form, in spite of the implication of the above language. The tendency is
against such a narrowness for the rule.^
(2) Secondly, a similar but slightly broader rule may be seen indicated
by the phrases, "no living witnesses can be had," "the great difficulty of
procuring living witnesses," and by the statements that such evidence is
admissible because living witnesses can " often " or " usually " not be had.
The implication is that where any living witness to tJie same matter, particu-
larly a member of the family, can be had, no hearsay statement of any
deceased persons can be received. This form of rule, which has had some
support in decisions,^ is perhaps appropriate enough where the evidence is
offered in the shape of family reputation ; for there is in strictness no neces-
sity for resorting to the hearsay of the family as such, until it appears that
members of the family cannot be had to testify on the stand.
(3) But where the evidence offered is the declaration of an individual
member of the family, the necessity for this person's hearsay lies merely in
the impossibility of procuring the declarant himself to testify on the stand ;
i. e. the death, absence, insanity, or the like, of the declarant alone suffices.
Such is the rule dictated by the analogies of the other Hearsay exceptions
admitting individual statements (for example. Dying Declarations, State-
ments against Interest, Eegular Entries). In the exception for Eeputation
^ 1870, Scharif u. Keener, 64 Pa. 379 (sem- any other kind of case not involving pedigree").
hie,- that the recent date of the occurrences is In the following cases peculiar modifications of
immaterial). this rule were laid down: 1883, Harland v.
^ 1847, White v. Strother, 11 Ala. 724 (ex- Eastman, 107 111. 538 (several members of the
eluded, where other members of the family were family were living and available ; Dickey, J. :
alive) ; 1890, Traveler's Ins. Co. ti. Sheppard, 85 "They are all living and their sworn testimony
Ga. 751, 779, 12 S. E. 18 (insurance claim ; is better than their unsworn statements. It
family reputation as to the fact of death, the follows that the witness cannot properly be al-
time being less than a year before, the members lowed to state his conclusion from such unsworn
of the family still surviving, excluded) ; 1884, statements, unless all of them taken together,
Ross 0. Loomis, 64 la. 432, 20 N. W. 749 with their surroundings, enable him to say such
Ipresent reputation at M.'s place of residence was the accepted state of the case in the family
" among the relatives and family " of M., as to or such was the uncontradicted repute in the
his decease, the wife being alive, excluded); family"); 1818, Crouch v. Eveleth, 15 Mass.
1846, Covert v. Hei-tzog, 4 Pa. St. 146 (hearsay 305 (family hearsay of the existence of children
declarations were rejected as evidence of " a as heirs was rejected because no effort had been
comparatively recent marriage," where "there made to obtain the record of marriage and no
was abundance of such evidence by living wit- showing that it was lost ; this would hardly be
nessss"); 1859, Campbell v. Wilson, 23 Tex. followed).
252 (unidentified entries in a family Bible were If a person's testimony as to his &um age is to
rejected, where the father was dead but the be treated as a report of family heai-say
mother was alive and in the jurisdiction) ; 1896, § 1495), this rule would require that the mem-
Hurlburt's Estate, 68 Vt. 366, 35 Atl. 77 (H. hers of his family be accounted for. Contra:
went to Dakota in 1882 ; reputation in the 1880, Cherry v. State, 68 Ala. 30 (a pereon's
family, consisting of sister, mother, and brother, statement as to his age was treated as based on
the father alone being dead, as to the fact of pedigree hearsay ; but no specific decease was
H.'s death, excluded ; " when all the facts rela- required to be shown). In the same State the
tive to a question of pedigree are within the ruling of Rogers v. De Bardelaben Co., 97 Ala.
knowledge of living witnesses, and none of such 154, 12 So. 81, that a brother and a brother-in-
facts are derived from the declarations of de- law could not testify ojiiAc stand to the plaintifTs
ceased members of the family, there is no neces- age, because third persons whose declarations
sity for resorting to so-called ' family reputation, ' are offered must be deceased, is incomprehensible,
created wholly by the living, any more than in
1842
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § 1482
(post, § 1580) there is some support for the notion that the necessity must
consist in the lack of other evidence of any sort ; but where individual dec-
larations are receivable, no claim can be made for such a broad idea of neces-
sity. Accordingly the only sound rule for the use of individual declarations
is that the declarant himself must be shown to be unavailable.^
It should be noted that since entries in a family Bible, or the like, may
usually be treated as representing either the entrant's individual assertion
or the family's reputation, it should therefore be enough, if the entrant is
identified, to show the entrant alone to be unavailable, and not to show
also the unavailability of other members of the family.
(4) Supposing the evidence offered to be the declaration of an individual,
it is clear that at least tJie declarant must be shown unavailable, hj decease or
otherwise.* Here the analogies of the other exceptions, as well as the nature
of the necessity-principle itself, indicate that not only death, but other cir-
cumstances — such as insanity, absence from the jurisdiction, and the like
• — may create such a necessity. On this point, however, the rulings are
few.5
2. The Circumstantial Guarantee.
§ 1482. General Principle. The circumstantial guarantee for trustworthi-
ness (ante, § 1422) has been found in the probability that the " natural
effusions " (to use Lord Eldon's often-quoted phrase) of those who talk over
family affairs when no special reason for bias or passion exists are fairly
trustworthy, and should be given weight by judges and juries, as they are in
the ordinary affairs of life. .The sentence of Lord Eldon's in Whitelocke v.
Baker has become the classical passage on this subject :
1790, Ashhursi, J., in R. v. Eriswell, 3 T. R. 720 : " It is natural for persons to talk
of their own situations and of their families. The evidence is in its nature of an unsus-
picious kind ; it is generally brought from remote times, when no question was depending
or even thought of, and when no purpose would apparently be answered."
1807, L. C. Eldon, in Whitelocke v. Baker, 13 Ves. 514 : " Declarations in the family,
descriptions in wills, descriptions upon monuments, descriptions in Bibles and registry
s 1860, Crauford v. Blackburn, 17 Md. 54 tate, 124 id. 653, 57 Pac. 579, 1008 ; 1817,
(Bartol, J. : " Thi.s exception to the general rule Chapman o. Chapman, 2 Conn. 349; 1870,
had its origin in the necessity of the case. . . . Greenleaf v. R. Co., 30 la. 303 ; 1828, "Wal-
It is objected tliat . . . the necessity did not dron v. Tuttle, 4 N. H. 378 ; 1854, Mooers v.
exist [for a husband's declarations as to the Bunker, 29 id. 432 ; 1854, Emerson v. White,
marriage], there being a party to the alleged ib. 491 ; 1829, Leggett v. Bnyd, 3 "Wend. 379;
marriage [the wife] living and competent to tes- 1851, Robinson a. Blakely, 4 Rich. 588 (a fa-
tify. . . . This objection arises from a misap- ther's entry in a family register, and a father's
prehension of the rnle. Such declarations are declarations, the father being still alive and in
not held to be admissible or inadmissible accord- the jurisdiction, excluded); 1834, Peterson t.
ing to the necessity of the particular case ; but Aukrom, 25 W. Va. 66, 62.
... by the established rule of law, which, » 1897, May v. Logic, 27 Can. Sup. 443, 445
though said to have its origin in necessity, is (statements of a father, living in England, ex-
universal in its application "). eluded, since his deposition might have been
* £^K.^. ; 1 859, Butler w. Mountgarret, 6 H. L. obtained); 1884, Eoss v. Loomis, 64 la. 432,
C. 648 ; Can. : 1848, Doe v. Servos, 5 U. C. 20 N. W. 749 (statements as to M.'s decease, by
Q. B. 284, 288 ; U. S. : 1897, People v. Mayne, M.'s wife, living in another jurisdiction, ex-
118 Cal. 616, 50 Pac. 654 (a family-Bible entry, eluded); 1869, Campbell v. Wilson, 23 Tex.
made by the mother ; excluded, the mother 252, semble (absence from the jurisdiction suf-
being alive and available) ; 1899, James' Es- fices) ; and the Codes quoted ante, § 1480.
1843
§ 1482 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
books, all are admitted upon the principle that they are the natural effusions of a party
who must know the truth, and who speaks upon an occasion when his mind stands in an
even position, without any temptation to exceed or fall short of the truth." ^
1811, Berkeley Peerage Case, 4 Camp. 406, 409, 420; Lawrence, J. : " Where the relator
had no interest to serve, and there is no ground for supposing that his mind stood other-
wise than even upon the subject, ... we may reasonably suppose that he neither stops
short nor goes beyond the limits of truth in his spontaneous declarations respecting his
relations and the state of his family " ; Wood, B. : " The admission of hearsay evidence
of the declarations of deceased persons in matters of pedigree is an exception to the general
law of evidence ; and it has ever been received with a degree of jealousy, because the
opposite party has had no opportunity of cross-examining the persons by whom the decla-
rations are supposed to have been made. But declarations, to be receivable in evidence,
. . . must have been the natural effusions of the mind of the party making them, and
must have been made on an occasion when his mind stood in an even position, without
any attempt to exceed or fall short of the truth " ; Eldon, L. C. : " If the entry be the
ordinary act of a man in the ordinary course of life, without interest or particular motive,
this, as the spontaneous effusion of his own mind, may be looked at without suspicion and
received without objection. Such is the contemporaneous entry in a family Bible, by a
father, of the birth of a child."
1840, Verplanck, Sen., in People v. Fire Ins. Co., 25 Wend. 220: "In order to adhere
as closely as possible to the policy of shutting out all vague, second-hand, and unauthen-
ticated evidence, such exception is made in favor of proof of declarations and reputation
[of family history] only where the persons whose opinion and declarations are relied upon,
besides being those most likely to be well informed as to the facts, were also, so far as
appears, free from all possible inducement to misrepresent the truth themselves or from
any danger of being misled by others so interested. ... It is then received . . .
because ordinarily they could have no temptation to falsehood or misrepresentation on
such "a subject."
1819, Pearson, J., in Moffilt v. Wilherspoon, 10 Ired. 192 : " [Pedigree] is a matter about
which they [the members of a family] are presumed to be particularly interested to ascer-
tain and declare the truth. Every one from a feeling of nature endeavors to know who
his relations are and will seldom declare those to be his kinsmen who are not."
In applying this principle, what specific rules have been deduced ?
§ 1483. Declarations must have been made before Controversy. First,
declarations made during the course of a controversy are to be regarded as
lacking in the guarantees of trustworthiness. In the traditional phrase, the
declarations, to be receivable, must have been made ante litem moiam :
1811, Heath, J., in Berkeley Peerage Case, 4 Camp. 413 : " When the contest has origi-
nated, people take part on one side or the other ; their minds are in a ferment, and if
they were disposed to speak the truth, facts are seen by them through a false medium.
... It would hold out an invitation to fabricated testimony if declarations could be
received in evidence which have been made when the contest was actually begun "
1831, L. C. Brougham, in Monktonv. Attorney-General, 2 Russ. & M. 160: "If there be
lis mota, or anything which has precisely the same effect upon a person's mind with litis
contestatio, that person's declaration ceases to be admissible in evidence. It is no longer
what Lord Eldon calls a natural effusion of the mind. It is subject to a strong suspicion
that the party was in the act of making evidence for himself. If he be in such circum-
stances that what he says is said, not because it is true, not because he believes it, but
because he feels it to be profitable or that it may hereafter become evidence for him or
for those in whom he takes an interest after his death, it is excluded. . . . "The ques-
"• Approved by Lord Cranworth in Butler v. Mountgarret, 6 H. L. C. 644 (1859).
1844
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTORY. § 1483
tion then always will be, . . . Was the evidence in the particular circumstances manu-
factured, or was it spontaneous and natural ? "
On two occasions, judges have doubted the expediency of this limitation ;^
but it is entirely in analogy to the limitations in other exceptions, and, so
long as the Hearsay rule is enforced in its present form, this limitation has
a legitimate place.^
Principle requires, however, that the dispute, if it is to exclude the state-
ments, should have been more or less over the precise point to which the
statements refer ; else no bias could be supposed to affect it. There is op-
portunity for much latitude in applying this limitation. Judges' opinions
have differed;^ but it should be a matter for the trial Court's discretion
whether under the circumstances of each case bias can be supposed to have
existed :
1840, Verplanck, Sen., in People v. Fire Ins. Co., 25 Wend. 215, 224: "If the rule
that actual litigation or litigious controversy without actual suit always vitiates the hear-
say declaration of those in whose family it existed be narrowed down to controversies
upon the very point afterwards sought to be ascertained, and strictly and legally involving
it, the reason of the rule is lost sight of. The result would be to exclude such family
traditions when the parties had an accurate knowledge of their legal rights or the legal
grounds of their claim, whilst it would admit them in cases where the claim pursued with
equal ardor and interest is erroneously understood by the parties themselves, and where,
for that very reason, they and their friends are more disposed to see the whole question
and its evidence through a false medium, and to suffer their wishes and feelings to dis-
turb or discolor their recollections or relations of facts. The spirit and reason of the rule
in my judgment, therefore, apply to every ancient controversy involving or affected by
the question afterwards in litigation or supposed at the time to be involved in it or
affected by it."
On the other hand, it is not necessary that litigation should actually have
begun at the time of the declaration. The element to be avoided is a bias in
the mind of a declarant ; and this is sufficiently probable if a dispute or con-
troversy is actually in progress, even though it may not have reached the
stage of legal proceedings :
^ 1811, Graham, B., in Berkeley Peerage * Limitation recognized: Eng.: 1816, Free-
Case, 4 Camp. 408 ; 1821, Boudereau o. Mont- man v. Phillipps, 4 M. & S. 397 ; 1881, Dysart
gomery, 4 Wash. C. C. 190 (Washington, J., Peerage Case, L. R. 2 App. Cas. 489, 503 ; U. S. :
admitting dejiositions in a previous cause : " It 1817, Chapman v. Chapman, 2 Conu. 349 ; 1859,
is not without great diffidence that I venture to Collins v. Grantham, 12 Ind. 444 ; 1881, De
dissent from the reasoning of the judges in the Haven v. De Haven, 77 id. 236, 237 ; 1840,
Berkeley Peerage Case. But it seems to be rather People u. Fire Ins. Co., 25 Wend. 210; 1825,
artitioial than solid, when directed against the Morgan v. Purnell, 4 Hawks 97 ; 1900, Nehring
admissibility of the evidence ; although I ac- v. McMurrian, 94 Tex. 45, 67 S. W. 943 ; 1839,
knowledge that the possibility of an undue bias Stein v. Bowman, 13 Pet. 209, 220.
having been produced by the existence of a con- ' The following cases apply the rule : 1816,
trover.sy might with propriety be urged against Freeman v. Phillipps, 4 M. & S. 397 ; 1857, Gee
the credit to be given to the evidence, where the u.Ward, 7 E& B. 511 ; 1860, Shedden v. Patrick,
proofs in the cause are contradictory and to be 2 Sw. & Tr. 170, 188 ("if a controversy exist,
weighed. I am apprehensive that great mischief it must be on the very point in respect of which
and injustice might be the consequence of ex- the declarations are sought to be used" ; here
eluding the only species of evidence which cir- there had been controversy about the legitimacy
cumstances not within the control of the parties of children, but not about a cohabitation or a
interested may have left to them, on the ground deathbed marri.ige, with which the admitted
of a presumed bias created by an existing or even letter dealt) ; 1828, Elliott i-. Peirsol, 1 Pet.
presumed controversy "). 337.
1815
§1483 EXCEPTIONS TO THE HEAESAY KULE. [Chap.XLIX
1831, L. C. Brougham, in Monklon v. Attorney-General, 2 Russ. & M. 160 : " Prove that
. . . the person concocting or making the declaration took part in the controversy. Show
me even that there was a contemplation of legal proceedings, with a view to which the
pedigree was manufactured, and I shall hold that it comes within the rule which rejects
evidence fabricated for a purpose by a man who has an interest of his own to serve."
1859, Willes, J., in Butler v. Mountgairet, 6 H. L. C. 611 : " The lis would surely have
dated at least from the time when the parties had respectively assumed a hostile attitude.
... A suit is not necessary to constitute lis." ^
The fact that no controversy existed, being preliminary to the admission
of the evidence, must be shown by the party offering it.^ But, as this is in
effect proving a negative, slight evidence should suffice.
§ 1484. No Interest or Motive to Deceive. The existence of a controversy
is only one circumstance (though the most common one) likely to produce a
bias fatal to the trustworthiness of the declaration. Judicial opinion seems
to hold, and properly, that other considerations may under certain cir-
cumstances operate to exclude the declarations. In general, they would be
excluded where there is any specific and adequate reason to suppose the ex-
istence of a motive inconsistent with a fair degree of sincerity. In Lord
Eldon's words, they must appear to be the natural effusions of a party stand-
ing in an even position :
1861, CJmnnell, B., in Plant v. Taylor, 7 H. & N. 237: "Perhaps the learned judge
was right in rejecting the evidence on the ground that any declaration made by Thomas
Taylor, the father, . . . would be a declaration by a person whose mind conld not be free
from bias. It was manifestly in many ways directly for his interest to make a declara-
tion tending to disavow his first marriage, or having a tendency to show that it was an
illegal marriage and consequently did not invalidate the second. No case has been cited
in which the declaration of a deceased person obviously for his interest has been received. " '
* Compare the opinions of the other law 1890, Hodges v. Hodges, 106 N. C. 374, 11 S. E.
lords, and the opinion of Greene, B., in the 364.
same case below, in 6 Ir. C. L. 94. It has been held that the existence of a con-
It was once said by Baron Alderson (1834, troversy between certain membei's of the fanvily
Walker v. Beauchamp, 6 C. & P. 561) that it is sufficient to condemn declarations by a mem-
was sufficient if at the time of the declaration ber who was himself ignorant of the controversy
the state of facts existed (for example, the birth and therefore qnite unbiassed : 1811, Berkeley
of a child) as to which the controversy after- Peerage Case, 4 Camp. 417 (Mansfield, 0. J. :
wards arose. This, however, obviously cannot be " I have now only to notice the observation that
sound ; for it is to the controversy, and to noth- to exclude declarations you must show that the
ing else, that the bias is to be attributed. Mr, lis mota was known to the pereon who made
Baron Alderson's opinion has been more than them. There is no such rule. ... If an in-
once repudiated, and has apparently never been quiry were to be instituted in each instance,
confirmed : 1843, Reilly v. Fitzgerald, 6 Ir. Eq. whether the existence of the controversy was or
344 (Sugden, L. C. ; " The point of inquiry re- was not known at the time of the declaration,
specting the admissibility of such evidence is, much time would he wasted and great confusion
not the existence of a state of facts out of which would be produced "). But this is against the
a claim has arisen, but the existence of a contro- reason of the rule, and cannot be supported :
versy or dispute respecting that claim " ; here 1860, Shedden v. Patrick, 2 Sw. & Tr. 170, 187
the question depended on whether a child was (Cresswell, J. : "We must judge of the feelings
born alive or not, but no one supposed till sev- of the party from what he knew at the time ").
eral years afterwards that anything depended ^ Accord: 1828, Doe v. Randall, 2 Moo. &
on the child's birth). Accord: 1856, Pigot, Rob. 25; 1831, Monkton v. Attorney-General,
C. B., in Butler v. Mountgariot, 6 Ir. C. L. 2 Russ. & M. 147 ; 1843, Reilly v. Fitzgerald,
107; 1836, Shad well, V. C, in Slaney w. Wade, 6 Ir. Eq. 345; 1817, Chapman v. Chapman,
1 Sim. 615 ; 1860, Shedden v. Patrick, 2 Sw. 2 Conn. 349 ; 1828, Waldron v. Tuttle, 4
feTr. 170, 187. N- H. 378; 1895, Byers v. Wallace, 87 Tex.
6 1825, Morgan v. Purnell, 4 Hawks 97 ; 503, 29 S. W. 760 (excluding the statements of
1846
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § U85
But this principle must not be pushed too far. Cautions have more than
once been given to avoid excluding evidence merely because there might have
been a bias :
1847, L. C. J. Denman, in Doe v. Davies, 10 Q. B. 325 : "[A declaration in a deed] was
objected to on account of the interest they had in making out things to be as there repre-
sented, and at least this intention of disposing of property was said to be equivalent to a
lis mota. But we think this objection also fails. . . . The parties did what they had a
right to do if members of the family. Almost every declaration of relationship is accom-
panied with some feeling of interest, which will often cast suspicion on the declarations,
but has never been held to render them inadmissible.''
1840, Walworth, C, in People v. Fire Ins. Co., 25 Wend. 215: " The declarations of
deceased relatives are not to be absolutely rejected because there is room for a suspicion
that they may have been made for a sinister purpose, if the party making them has no
interest in their truth." ^
In particular, as to the entry of a birth declared to be legitimate, the mere
circumstance that the entry was made with a view to perpetuating evidence of
legitimacy or of the date of birth should not exclude the entry ; otherwise
very few such entries would be receivable, and the chief and honorable piir-
pose of making them would be defeated :
1801, Mansfield, C. J., in Berkeley Peerage Case, 4 Camp. 418 (for all the Judges, re-
specting an entry in a family Bible) : " The father is proved to have declared that he
made such entry for the express purpose of establishing the legitimacy of his son and
the time of birth, in case the same should be called in question after the father's death.
The opinion of the Judges is that the entry would be receivable in evidence, notwith-
standing the professed view with which it was made. Its particularity would be a strong
circumstance of suspicion ; but still it would be receivable, whatever the credit might be
to which it would be entitled." '
Finally, the offeror of the evidence must perhaps show the absence of mo-
tive to deceive ; * but slight evidence should suffice.
3. Testimonial Qualifications, and Other Independent Rules of Evidence.
§ 1485. (1) Testimonial Qualifications. As in the other exceptions to
the Hearsay rule {ante, § 1424), there are here found certain requirements
resting upon the general principles of Testimonial Qualifications which are
applicable to all testimonial statements and have been already examined for
testimony in general. Chiefly there arise here questions as to the means of
one asserting the death of a nephew whose sole 594, serrible. Lord Mansfield, C. J. ; 1857, Gee
heir he was ; superseding Fowler v. Simpson, 79 v. Ward, 7 E. & B. 511 ; 1840, People v. Fire
id. 611, 614, 15 S. W. 682); 1899, Turner v. Ins. Co., 20 Wend. 211, Cowen, J. Oontra:
Sealock, 21 Tex. Civ. App. 594, 54 S. W. 358 1817, Chapman v. Chapman, 2 Conn. 349 (Swift,
(same; sister's declarations as to brother's death, C. J. : "When they are made for the express
excluded) ; 1899, Lewis v. Bergess, 22 id. 252, purpose of being given in evidence on a question
54 S. W. 609 (same ; mother's declarations of pedigree, they will not be received. If a per-
exclu(led). son were to take up a Bible, and, having the idea
Compare the cases cited post, §§ 1492, 1493, that it was afterwards to be produced in evi-
which are sometimes wrongly placed on this dence, were to write down at once the births and
principle. deaths of his children, such an entry would not
* Accord : 1831, Shields v. Boucher, 2 Russ. be admissible ").
& M. 147, per Biougham, L. C. * 1854, Emerson «. White, 29 N. H. 491 ;
' Accord: VlTl, Goodright v. Moss, 2 Cowp. and cases swgra, semble, §§ 1482, 1483.
1847
§ 1485 EXCEPTIONS TO THE HEAESAY EULE. [Chap. XLIX
Knowledge {ante, § 656) of the declarant, and the form of Commuaication
{ante, § 766) of his knowledge.
§ 1486. (a)- Sufficiency of the Declarant's Means of Knowledge; General
Principle. The ordinary principle applicable to the situation would be {ante,
§§ 654, 656) that the declarant must appear to have had fair knowledge, or
fair opportunities for acquiring knowledge, on the subject testified to. This
principle, as applied to the facts of family history, indicates that the qualified
persons will be found chiefly, if not exclusively, within the family circle ; for
they alone may be expected to have fairly accurate information. It is of
course not to be expected that personal observation shall be demanded, i. e.
that only from those who were present at the birth, wedding, or death, shall
hearsay statements be received ; this would be to misconceive the theory of
the exception. That theory is that the constant (though casual) mention
and discussion of important family affairs, whether of the present or of past
generations, puts it in the power of members of the family circle to be fully
acquainted with the original personal knowledge and the consequent tradition
on the subject, and that those members will therefore know, as well as any
one can be expected to know, the facts of the matter. It is not that they
have, each and all, a knowledge by personal observation, but that they at least
know the fact as accepted by family understanding and tradition, and that
this understanding, based as it was originally on observation, is prima facie
trustworthy. This has always been accepted as the sufficient reason for
predicating sufficient testimonial <iualification :
1807, L. C. Eldon, in Whilelocke v. Baker, 13 Ves. 514: " It was not the opinion of
Lord Mansfield, or of any judge, that tradition, generally, is evidence even of pedigree;
the tradition must be from persons having such a connection with the party to whom it
relates that it is natural and likely from their domestic habits and connections that they
are speaking the truth, and that they could not be mistaken. "
1811, Mansfield, C.J., in Berkeley Peerage Case, 4 Camp. 416: "General rights are
naturally talked of in the neighborhood, and family transactions among the relations of
the parties. Therefore, what is thus dropped in conversation upon such subjects may be
presumed to be true." ^
. ^ Personal knowledge of the facts is therefore unless he professes merely to give family repute
iwt requisite: 1831, Monkton v. Attorney-Gen- upon the subject); 1903, Grand Lodge w. Barter,
eral, 2 Rass. & M. 165 (Brougham, L. 0. : "The — Nebr. — , 96 N. W. 186 (wife's statement
declarations tendered in evidence may either of her deceased husband's age, based solely on
refer to what the party knew of his own per- the statement of the priest at the time of mar-
sonal knowledge, or, as is much more frequently riage, excluded). The following ruling seems
the case, to what he had heard fi-om others to uusonnd: 1873, Deedes v. Giles, 17 Sol. J. 420,
whom he gave credit"). Accord: 1879, Van 7 Alb. L. J. 269 (statements by a deceased
Sickle V. Gibson, 40 Mich. 173 ; 1843, Jewell's grandfather about his own grandfather, who
Lessee v. Jewell, 1 How. 231. Nor need the died before his birth, excluded, because it did
knowledge, such as it is, be exact in its details ; not appear that the former's information was
for example, the declaration, in affirming rela- obtained from members of the family). The
tionship, need not particularize as to the degree, following case is hardly a ruling of exclusion :
where that is not material in the case: 1806, 1841, R. v. Lydeard, St. Lawrence, 11 A. & E.
Vowles V. Young, 13 Ves. 147, L. C. Erakine ; 616 (pauper settlement ; a witness' statement,
1828, Doe v. iSindall, 2 Moo. & R. 25, Bur- "I was born in the parish of L. St. L, as I
rough, J. have heard and believe," held not to be of itself
The following rulings therefore seem sound : snfficient to prove the place of his birth ; Pat-
1899, Rothwell v. Jamison, 147 Mo. 601, 49 teson, J. : " It does not appear when or where
S. W. 503 (a person testifying on the stand to the son was born, except by his own evidence ;
family history must have personal knowledge, he could not know these facts ; and they do not
1848
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTORY. § 1487
The difficulties, then, that arise are concerned with drawing the line
between declarants that may fairly be supposed to be thus qualified and those
that may not. The questions here are of two general sorts : First, Shall a
line be drawn between those who are relatives, i. e. strictly members of the
family circle, and those who are not, i. e. servants, friends, neighbors, and the
like ? Secondly, Shall any line be drawn between different kinds of relatives,
for example, according as they are near or distant, or as they are related by
consanguinity or by affinity 1
Before considering these two great classes of questions, it is desirable to
examine the language of the Courts and observe what general notions, if any,
are expressed, as to the scope of this knowledge-qualification :
1790, L. C. J. Kenynn, in R. v. Eriswell, 3 T. K. 707: " I admit, declarations of the
members of a family, and perhaps of others living in habits of intimacy with them, are
received in evidence as to pedigrees ; but evidence of what a mere stranger has said has
ever been rejected in those cases."
1806, L. C. Erskine, in Vowles v. Young, 13 Ves. 140: "[A pedigree declaration] is
evidence from the interest of that person in knowing the connections of the family.
Therefore the opinion of the neighborhood or what passed among acquaintance will not
do."
1817, Swifl, C. J., in Chapman v. Chapman, 2 Conn. 349 : " The declaration must be
from persons having such a connection with the party to whom it relates that it is
natural and likely, from their domestic habits and connexions, they are speaking the
truth and cannot be mistaken. . . . The opinion of deceased neighbors or acquaintances
of the family are not evidence in a question of pedigree ; for they cannot be supposed to
have that certain knowledge which can be relied on. . . . From this it appears that the
deceased relative whose declarations are given in evidence is to be considered as standing
on the foot of a witness, and the hearsay declarations admitted in lieu of his testimony.
It is therefore essential that the relative whose declarations are given in evidence should
be named, so that the Court may be enabled to know whether his relationship or connex-
ion with the family whose pedigree is in question was such that he may be supposed to
know the truth of the declarations."
1883, Dickey, J., in Harland v. Eastman, 107 111. 538 : "What has been said by de-
ceased members of the family is admissible upon the presumption that they knew from
the general repute in the family the facts of which they speak."
§ 1487. Same : Declarations of Non-Relatives. The required qualification,
then, in general may be supposed to be present whenever (following the
judicial phrases) there are found persons " likely to know the facts," " having
an opportunity to know the facts," or " holding a relation rendering it very
probable that he would learn them truly." If this is so, the line need not
be drawn strictly at relatives. But the language of Lord Erskine (quoted
above), " the interest of the person in knowing the connections of the fam-
ily" does require the line to be drawn there.^
ask his father, who probably knew and was ex- the declarant was not .shown deceased (ante
amined" ; that the testimony was regarded as § 1481) or that the particular declarant was not
absolutely inadmissible does not clearly appear). qualified on the facts of the case: England:
^ Accordiagly, this uncertainty of phrasing 1743, Craig dem. Annesley v. Earl of Anclesea
has led to conflicting rulings ; note, however, 17 How. St. Tr. 1160 (the godmother "of an
that several of the rulings excluding the state- alleged child, intimate friend of the mother •
ments of non-relatives do so on the ground that her hearsay to the child's existence and legiti-
1849
§ 1487
EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
Yet, after all, such a narrow test seems too narrow, at least for this country.
Even in England, where so much of personal advancement and material
prosperity for the individual depends upon his family rank and his rights of
inheritance, it seems too much to say that only those who have this immedi-
ate property-interest in learning the family history can possibly have adequate
information ; for famOy physicians and chaplains, old servants, and intimate
friends may, in cases, be equally and sufficiently informed. In this country
at least, the conditions are such, for the mass of the population, that the
macy, not allowed) ; 1754, Robins v. "Wolseley,
2 Lee Eccl. 135, 421, 442 (deceased vicar's
affidavit of the time of a marriage by him, ad-
mitted ; whether by eommoD law or canon law
does not ap|iear ; compare § 1476, ante) ; 1776,
Duchess of Kingston's Trial, 20 How. St. Tr.
355, 692 (bigamy ; the widow of parson Annis
testified to knowing the defendant ; Q. "Were
j'ou privy to her marriage in your husband's
lifetime?" A. "I was not at the wedding;
but I have heard my husband say he married
them" ; a Lord: '"That is not evidence" ; no
ruling was made or asked for) ; 1811, Berke-
ley Peerage Case, Min. Ev. 655, quoted in
Hubback, Succession, 246 (declaration of a de-
ceased clergyman, chaplain to the Earl, that
the Earl and Countess were married by him,
and that a certain person was their legitimate
son, excluded, by all the judges) ; 1812, Walker
V. Wingfield, 18 Ves. 443, 446 (Eldon, L. C. :
" The question whether a physician or a servant
who has attended the family can be admitted as
one of the family has not, I conceive, been
decided"); 1824, Johnson v. Lawson, 2 Bing.
86 (quoted posi) ; 1843, Casey y. O'Shaughnessy,
7 Jur. 1140 (Eoman Catholic priest, excluded) ;
1879, Polini v. Gray, L. R. 12 Ch. D, 426,
per James, L. J. (intimate friends, excluded) ;
Canada: 1848, Doe o. Auldjo, 5 U. C. Q. B.
175 (declarations of an old body-servant, ex-
cludeil, by two judges to one). In the British
Indian Code, drawn by Sir James Stephen,
declarations by persons having '"special means
of knowledge " are made admissible : Whitley-
Stokes' ed.'ll, 875, § 32. United States: 1867,
Wilson V. Brownlee, 24 Ark. 589 (it was con-
ceded that declarations by others than memljers
of the family were admissible ; but declarations
by persons as to whose knowledge nothing what-
ever was shown were rejected); 1817, Chapman
V. Chapman, 2 Conn. 347 ("declarations of the
deceased members of a family, or those who
have lived in the family and may from their
connexion with it be supposed to know the
state of it," are admissible; but not "of de-
ceased neighbours or ac(iuaintances of the fam-
ily," " for they cannot be supposed to have that
certain knowledge which can be relied on ") ;
1901, Alston V. Alston, 114 la. 29, 86 N. W.
55 (declarations of F. and his wife, friends in
whose family the plaintiff, the illegitimate child
of a mother D., was brought \\\> from a time
shortly after his birth, were admitted to show
plaintiff's paternity); 1811, Jackson v. Cooley,
8 John. 130 (Thoiflpson, J. : the deelax'ations of
" persons who fi'om their situation were likely to
know are competent evidence " ; and a reputation
among acquaintances of the family was admitted ;
Spencer, J., dissented, but apparently on the chief
ground that the acquaintances were not shown
to be deceased) ; 1820, Jackson o. Browner, 18
id. 39 (Spencer, C. J., rejected declarations from
acquaintances of a particular ancestor in Ireland,
because the witnesses "have not derived their
information from such persons as had any con-
nection or particular acquaintance with the fam-
ily from which John M'Neil sprang"); 1902,
Dinan v. Supreme Council, 201 Pa. 363, 50
Atl. 999 (health board's certiHcate, nndertaker's
coffin-plate, and newspaper obituary notice, stat-
ing the deceased's age, and founded on conflict-
ing statements of various members of the family,
excluded) ; 1889, Howard o. Russell, 75 Tex.
171, 176, 12 S. W. 525 (recitals in an ancient
masonic lodge-record, as to the domicile of a
visitor, received, as involving a question of
pedigree) ; 1899, Turner v. Sealock, 21 Tex.
Civ. App. 594, 54 S. W. 358 (declarations as to
H.'s death, by persons who were with him, ad-
mitted) ; 1899, Lewis v. Bergess, 22 id. 252,
54 S. W. 609 (declarations of a friend who went
with H. to the Mexican war, that he served in
the army and died there unmarried, admitted) ;
1839, Stein v. Bowman, 13 Pet. 209, 220 (state-
ments of ' ' many old persons " in Germany, as
to the plaintiff being brother to G. S., deceased,
excluded, partly because the declarants were
living, partly because the statements "do not
appear to have been made by members of the
family or by persons who had such connexions
with the deceased as to have a personal knowl-
edge of the facts stated"); 1876, Connecticut
Mut. Life Ins. Co. v. Schenck, 94 U. S. 98
(an entry of age in the minute-book of a lodge
of Odd Fellows, of which the deceased was a
member, was rejected, as being the statement of
a "stranger ") ; 1896, Flora u. Anderson, 75 Fed.
217, 222 (declaration of one who was a servant in
the household for an unspecified time, as to the
birth of an illegitimate child to a daughter in
the house ; sffmhle, excluded) ; 1884, Peterson w.
Ankrom, 25 W. Va. 56, 61, 63 (affidavit of an
intimate friend ; undecided).
Distinguish the following, which seems to
involve the principle of § 1788, post: 1897,
Posey V. Hanson, 10 D. C. App. 497, 507 (in
rebutting the presumption of death, the fact of
the person being "heard from" may include
the hearsay of persons not members of the
family).
1850
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTORY. § 1488
interest in family rank and inheritance cannot require such a narrowing of
the test.
It is not necessary to maintain that the statements of any friend are always
admissible ; but it is desirable to disavow any limitation which would exclude
the statements of one whose intimacy with the family could leave no doubt
as to his sufficient acquaintance, equally with the family members, of the
facts of the family history :
1848, Robinson, C. J., in Doe v. Auldjo, 5 U. C. Q. B. 175 (holding admissible testi-
mony from a member of the family that an old body-servant, now deceased, had returned
from Africa and told them of the death there of his master, an explorer, the ancestor in
question): "There is therefore no improbability in the servant's relation, which seems
to have been credited at the time and ever since . . . and after fifty years parties are
relieved from the necessity of attempting to account for him. . . . No better evidence
would be required than the account brought back by his faithful servant to his family,
and accredited by them and by the government which employed him."
The only reasoned defence of the narrower rule is found in the following
opinion :
1824, Johnson v. Lawson, 2 Bing. 86; declarations of one who had been a housekeeper
in the family for 24 years were rejected ; Best, C. J. : " Evidence of that kind must be
subject to limitation, otherwise it would be a source of great uncertainty; and the limita-
tion hitherto pursued, namely, the confining such evidence to the declarations of relations
of the family, affords a rule at once certain and intelligible. If the admissibility of such
evidence were not so restrained, we should on every occasion, before the testimony could
be admitted, have to enter upon a long inquiry as to the degree of intimacy or confidence
that subsisted between the party and the deceased declarant."
It may be noted, as to this reasoning, first, that its result is inconsistent
with the general language used in earlier judicial opinions {ante, § 1486), and
is supportable only on the narrow test of Lord Erskine before mentioned ;
secondly, that the special reason given, namely, the inconvenience of an in-
vestigation into sources of knowledge, is anomalous in the law of evidence ;
for no Court is allowed to decline to investigate the sources of a witness'
qualifications so far as may be necessary, while in each case the investigation
need be no more tedious than the judge's discretion permits ; and, finally, that
the proof of intimacy in the household would surely be no more tedious than
proof of family membership is often found to be.
§ 1488. Same : Reputation in the Neighborhood or Community. The use
of declarations of individual friends and intimates is to be distinguished
from the use of reputation in the neighborhood or community. The elements
of trustworthiness that are found in a community-reputation, and are recog-
nized as sufficient to render it evidential in certain classes of cases are ex-
amined under the Eeputation-Exception to the Hearsay rule, and the
application of that principle to facts of family history (such as race-
ancestry, marriage, birth, and death), can there best be dealt with {post,
§ 1G05). In the Courts recognizing the use of neighborhood-reputation for
the present class of 'facts, the recognition has historically been reached often
as a direct extension of the principle of family-reputation.
VOL. 11.-54 1851
§ 1489 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
§ 1489. Same : Declarations of Relatives ; Distinctions between Different
Kinds of Relatives. Is there any reason for excluding any class of relatives
as not having probable adequate information ?
1. First, there has been no attempt to rule out specific consanguines be-
cause of the remoteness of relationship. This might, perhaps, well be done
in a given case ; but the rule has apparently crystallized with this arbitrary
limit.
2. Next, should any distinction be made between a relation hy Hood and a
relation hy marriage, to the disadvantage of the latter ? All that can be
said for such a distinction is that relations by marriage are likely to be less
intimate in the family circle and to have little or no interest depending upon
a chance of inheritance. But the general likelihood of their being correctly
informed is perhaps quite as great as for distant consanguineous relations,
and is sufficient in the ordinary instances. As a matter of precedent, the
statements of one who is a party to a marriage are regarded as acceptable
(i. e. statements regarding the other marital party's family history). His-
torically, this was first settled for the case of a declarant husband :
1806, L. C. Ershine, in Vowles v. Young, 13 Ves. 140 : " The law resorts to heai-say of
relations upon the principle of interest in the person from whom the descent is to be
made out. ... As far as hearsay is evidence of anything within the knowledge of a
man, no man can be supposed ignorant of the reputation of the descent of his wife. . . .
But it must be considered whether that can extend to mere collateral declarations of this
kind [a wife's illegitimacy], where there is no interest in the husband. . . . Consider,
then, whether the knowledge of the husband as to the legitimacy of his wife is not likely
to be more intimate, and his interest stronger, than that of any relation however near in
blood. Fu'st, if she has an estate tail, he is tenant by the curtesy. Has he not an in-
terest in knowing her legitimacy, his expectation depending upon it? So as to her per-
sonal estate, he is entitled to all that comes to her. Is not that a strong interest ? " ^
Then, tardily, it was settled for the case of a declarant wife? Furthermore,
in general, the declaration of any person connected on one side of a marriage
concerning relationship in the family on the other side would probably be
received, unless the probable absence of adequate information should be made
to appear in a given instance :
1828, Best, C. J., in Doe v. Randall, 2 Moo. & P. 25-: " Consanguinity, or affinity by
blood, therefore, is not necessary, and for this obvious reason, that a party by marriage
is more likely to be informed of the state of the family of which he is become a member
than a relation who is only distantly connected by blood, as by frequent coiiversation the
former may hear the particulars and characters of branches of the family long since
dead." '
^ Accord : 1825, Doe v. Harvey, 1 Ry. & Moo. family of a grandson of a maternal uncle of W.,
297 ; 1843, Jewell's Lessee v. Jewell, 1 How. the propositus, as to the non-existence of collat-
231. eral relatives of W. on the paternal side) ; 1894,
2 1857, Shrewsbury Peerage Case, 7 H. L. Pickens' Estate, 1G3 Pa. 14, 28 Atl. 875. Con-
C. 22, 26 ; presumably superseding Davies v. tra : 1895, Turner v. Kinj;, 98 Ky. 253, 32 S. W.
Lowndes, 1843, 7 Scott N. K. 188, and con- 941 ( a family Biiile of the testator's mother's
firming Doe v. Randall, 1828, 2 Moo. & P. 25. father, to show the testator's age, excluded as
' Accord : Codes cited ante, § 1480 ; 1840, not being the reputation of the testator's family ;
People V. Fire Ins. Co., 25 Wend. 209 (ad- this is unsound ; is not a grandchild a. member
mitting declarations by deceased members of the of the grandfather's blood-family ? ).
1852
§§ 1480-15D3] STATEMENTS ABOUT FAMILY HISTORY. § 1491
§ 1490. Same : Declarant's Qualifications must be shown. Upon the gen-
eral principle for testimonial knowledge (ante, § 654), the qualifications of
the deceased declarant — his relationship, or whatever is relied upon as
equipping him with information — must be shown in advance.^ In other
words, the relationship of the declarant to the family whose history he refers
to must be shown by evidence independent of his mere d eclaration ; other-
wise, there would be a begging of the question. The only apparent excep-
tion is found in the case of a declarant speaking of his own personal history,
— for example, of his marriage.^ But obviously a person is qualified to
speak of himself ; it is only where a relationship with others is involved
that the fact must be made to appear independently.
§ 1491. Same: Relationship always Mutual; Connecting the Declarant
with Both FamiUes. It follows, in applying the foregoing principle, that
where an alleged relationship between Doe and Eoe is to be testified to,
a relation of Doe may speak to it, because it concerns the relationships
of Doe's family, while a relation of Eoe may equally speak to it, because
it concerns the relationships of Koe's family ; hence, all that is required of
the declarant is a connection with either one or the other, but not with loth.
This truth, however, has been obscured by what must be regarded as erro-
neous rulings. The question being whether Doe is related to Eoe (for ex-
ample, so as to share in Eoe's inheritance), the argument has been that it
would be idle to require merely that the declarant should be shown to be
related to Doe alone, because then any family could connect itself with any
other by its members' mere assertion of the relationship. But the proper
way to approach the question seems to be a different one, and is as follows :
Any member of Doe's line may declare as to the relationships (i. e. member-
ships) of that family, and any member of Eoe's line may declare as to the
relationships (i. e. memberships) of that family ; and the qualifications of
the declarant, as such member, must of course be shown beforehand, like
the qualifications of any witness {ante, § 1486). Thus, before declarations
of a supposed member of Doe's family can be admitted, the declarant's mem-
bership in Doe's family — for example, that he is Doe's son — must be shown.
But that is the whole effect of this requirement. The further question, if
any, is, whether a declaration of Doe's son that Doe is related to Eoe
1 1810, Banbury Peerage Case, 2 Selw. N. P. Emerson v. White, 29 N. H. 491 ; 1820, Jack-
764, and in App. to LeMarcliant's Gardner Peer- son v. Browner, 18 John. 29 ; 1814, Barnet's
age Case, 410, 412 ; 1848, Doe v. Servos, 5 U. C. Lessee v. Day, 3 Wash. C. C. 243 ; 1869, Eaton
Q. B. 284, 289 ; 1882, Wise v. Wyiin, 69 Miss. !'. Tallmadge, 24 Wis. 222. But the witness on
592 ; 1901, Young v. Shulenberg, 165 N. Y. the stand need not be related to the family of
385, 59 N. E. 135 ; 1880, Thompson v. Woolf, 8 the declarant: 1900, Elder «. State, 124 Ala. 69
Or. 463 ; 1884, Sitler v. Gehr, 105 Pa. 592 ; 27 So. 305.
1886, Fulkerson v. Holmes, 117 U. S. 389, 6 " 1819, Allen v. Hall, 2 Nott & McC. 114
Sup. 780. Of course, also, it must be shown (partition; defendants claiming against a granr
that the witness on the stand, reporting the fam- tee from their aneestoi-'s alleged wife were al-
ily reputation, has sufficient acquaintance with lowed to show their ancestor's declarations that
the family to know what that reputation is ; this, he was not mai'ried). Compare § 268, ante
again, is an ordinary question of the testimonial (conduct as evidence of marriage), and § 2063,
qualifications, i. e. of the witness on the stand, post (testimony to illegitimacy of offspring dur-
aiid is not peculiar to the Hearsay exception : ing marriage).
1883, Harland o. Eastman, 107 111. 539 ; 1854,
1853
§ 1491 EXCEPTIONS TO THE HEAESAY EULE. [Chap. XLIX
(for example, is Eoe's cousin) is a declaration as to Doe's family at all, — ■
i. e. whether it is not, for the case in hand, solely a declaration about Eoe's
family-relationships, as to which Doe's son is by hypothesis not yet shown
to be a qualified declarant. Now the state or condition of relationship must
always in effect, though not ia form, be double or mutual ; ^ i. e. the fact
that Doe is cousin to Eoe is also the fact that Eoe is related as cousin to Doe.
Hence, a statement of Doe's son that Doe is cousin to Eoe, though in one
form an assertion of Eoe's relationships, is also and equally a declaration
that one of the relations of Doe (i. e. one of the members of Doe's family) is
Eoe, — for example, that one of the grandsons of Doe's grandfather is Eoe.
It is therefore a declaration upon which Doe's son is qualified to speak. The
doubt, then, can only be as to whether it should make any difference that in
the case in hand it is Eoe's descendants who are seeking Doe's estate or Doe's
who are seeking Eoe's estate. This surely cannot affect the evidential value
of the declarations ; for that must depend on the circumstances at the time
of making, and no one has ever contended that, apart from the lis mota and
kindred limitations (ante, §§ 1483, 1484), it makes any difference whether
the declarant belongs to a poor or obscure branch of the family or to a rich
and notorious one. Moreover, it is usually at a later date only that it has
become apparent which branch would have a pecuniary interest in connect-
ing itself with the other. The difference, then, is a matter of the form of
statement only, and such assertions as the above must be treated as in sub-
stance declarations as to Doe's family-relationships ; whether it is Doe's or
Eoe's family that now happens to be seeking the inheritance is immaterial.^
Any other rule would produce this singular inconsistency, that if in 1863,
^ L. C. Brougham, in Monkton ». Attorney- to be related to the family as to which decia-
General, cited infra : " It is not more true that rations were made, but also that they must
things which are equal to the same thing are be thus shown to be related to the person who
equal to one another than that persons related died seised. . . . Although there is some con-
by blood to the same individual are more or less flict in the cases, the weight of authority seems
related to each other." to be that while a declarant must be shown by
^Accord: 1831, Monkton v. Attorney-Geu- evidence aMitn<ie to belong to the family, it does
eral, 2 Russ. & M. 147 ( declarations of J. T. not appear to be necessary to show that he
as to the relationship of S. T. and G. T. were belongs to the same branch of it " ; Monkton v.
admitted, J. T.'s kinship with G. T., but not Attorney-General /oUowed) ; 1891, Robb's Estate,
with S. T., being first shown ; Lord Brougham, 37 S. C. 19, 22, 33, 36, 16 S. E. 241 (declara-
L. C. : "I cannot go to the length of holding tions of G., son of M. M., whose sister was
that you must prove him to be connected with J. M., that R. was the son of R. and J. M., ad-
both the branches of the family touching which mitted ; the family to which it was necessary to
his declaration is rendered" ) ; 1901, Mann ». connect the declarant being that of M., not R.)
Cavanaugh, 110 Ky. 776, 62 S. W. 854 (recitals Compare the cases cited post, § 1573 (recitals
of grantors' heirship of J. C. in an ancient deed of heii-ship in ancient deeds), which often give
by J. J. C. and others, held sufficient to prove the same result.
J. C. the ancestor of J. J. C.) ; 1884, Sitler v. Where the declarant is the intestate himself,
Gehr, 105 Pa. 577, 592 ( "The declarants were his declarations may be received as admissions
A. M. G. and John G. ; the plaintiffs ancestor of a predecessor in title (ante, § 1082), and the
was Joseph G. ; the deceased ancestor was Balser present question need not arise; e.g.: 1901,
G., of Berks County. It was not denied that Malone ». Adams, 113 Ga. 791, 39 S. E. 507
the declarants were of the family of Joseph G., ( one claiming as niece and heir, allowed to
and it was attempted to show by their declara- prove her relationship to the decedent by the
tions that the above-named Joseph 6. and decedent's declarations ; distinguishing Greene
Balser G. were related to each [other]. ... v. Almand, 111 id. 735, 36 S. E. 957, which.
The plaintiffs in error contend, not only that the however, seems contra).
declarants must be shown by evidence aliunde
1854
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § 1492
Doe and Roe being toth poor, Doe's son James mentions Eoe in a letter as
his father's cousin, and then dies in 1864, and if in 1884 litigation arises and
James is proved to be the son of Doe, his letter would be received if Doe
had become the wealthy one and Eoe's relatives were claiming a share, but
would be rejected (without other proof) if Eoe had happened in the mean
time to become the wealthy one and Doe's relatives were seeking a share.
Yet this seems to be the logical consequence of the doctrine laid down by
the Federal Supreme Court.*
§ 1492. Same : Relationship of Illegitimate Child. It has been ruled in
England that where the relationship claimed and to be testified to is that of
an ilkgitimate child, the father's relations are not qualified declarants, because
(apparently) the claimant is legally not of the declarant's family.^ But this
seems a mere juggling with legal rules. The question is, Was the declarant
in such a position as to be likely to know something of this alleged fact of
family history ? Whether the illegitimate child is or is not a lawful heir
according to the rules of the substantive law about succession, is quite beside
the point in determining the evidential question of the declarant's probable
information. The principle of the ruling has been disapproved in England,^
and ought not to be followed in this country.* It seems never to have been
doubted that the declarations of the parents themselves, or the repute in the
household where the child lived, as to a child's legitimacy or illegitimacy,
are receivable ; * although it is obvious that upon the false theory of Crispin
' The following cases take the stricter view : v. Eardley, L. E. 2 P. & D. 248 (whether M.
1849, Dunlopa. Servos, 5 U. C. Q. B. 288 (here was the legitimate child of J. and L. ; M.'s dec-
the plaintiff claimed as heir of J. D., and decla- larations admitted, after a prima facie ease of
rations of A. D., the plaintiff's father, that the legitimacy was otherwise made out),
plaintiff was the heir, were offered ; it was held ' It has however been at least twice ap-
that A. D's relationship to J. D. must first be proved: 1844, Northrop v. Hale, 76 Me. 312
shown ) ; 1896, Jennings v. Webb, 8 D. C. App. (approving Crispin v. Doglioui ; but here ad-
43, 56 (Blackburn w. Crawfords,U. S., followed) ; mitting declarations of the mother's sister, be-
1882, Wise v. Wynn, 59 Miss. 588, 592 (C. W.'s canse a bastard is legally of his mother's family);
estate being claimed by children of an alleged 1896, Flora v. Anderson, 75 Fed. 217, 234 (fol-
brother T. W., C. W.'s declarations that he had lowing Crispin v. Doglioni). Compare Barnura
a brother T. W., admitted ; but they would i.. Barnum, in the next note,
have been excluded if the claim here had been * 1777, Goodright v. Moss, Cowp. 594
by C. W.'s children to T. W.'s estate ) ; 1865, (quoted post, § 1497) ; 1791, Goodright v. Saul,
Blackburn v. Crawfords, 3 Wall. 187 (declara- 4 T. R. 356 ("the reputation in the family of
tions by A., sister of B., that B. was married to the son's being a bastard," received without
X., the brother of Y., whose property-succession question) ; 1901, Heaton's Estate, 135 Cal. 385,
was in issue, were rejected, because the declarant 67 Pac. 321 (claim of inheritance as illegitimate
did not belong to the family whose pedigree was child of H. ; declarations of H., in whose family
in issue). In Plant v. Taylor, 1861, 7 H. & N. the claimant lived, held admissible) ; 1903,
226, 237, the reasoning is hopelessly confused. Heaton's Estate, 139 id. 237, 73 Pac. 186 (pre-
"■ 1863, Crispin v. Doglioni, 3 Sw. & Tr. 44 ceding ruling affirmed) ; 1874, Kansas Pac. E.
(declarationsof J. as to the relationship of illegit- Co. v. Miller, 2 Colo. 442, 453, 460; 1862,
imate son which the plaintiff claimed with J.'s Niles v. Spragne, 13 la. 198, 207 ; 1899, Wat-
brother were excluded, by Sir C. Cresswell, be- son v. Eichardson, 110 id. 673, 80 N. W. 407 ;
cause "the plaintiff according to his own ac- 1901, Alstons. Alston, 114 id. 29, 86 N. W. 55
count is filius nuUius by our law "). Accord : (declarations as to paternity of a conceded il-
1837, Doe v. Barton, 2 Moo. & Rob. 28 (declara- legitimate child, admitted) ; 1848, Copes v.
tions of B., an illegitimate son, as to the death Pearce, 7 Gill 247, 264 ; 1875, Barnutn v. Bar-
of an illegitimate brother, excluded). num, 42 Md. 251, 304 (declarations of the
^ 1879, Murray v. Miluer, L. R. 12 Oh. D. mother of R. as to the non-marriage of R. and
849 (admitting declarations in a will as to the C, and the illegitimacy of their child J., admit-
naturalness of a child, semdfe). The following rul- ted); 1894, Jackson o. Jackson, 80 id. 176, 30
ing seems to require too much: 1871, Hitchins Atl. 752 ("declarations of deceased parents are
1855
§ 1492 EXCEPTIONS TO THE HEAESAT RULE. [Chap. XLIX
V. Doglioni, the father's declarations of illegitimacy would he inadmissible.
There is a danger of being too nice in the logical application of the substantive
law of relationship to the present testimonial rule, which rests rather upon
the moral probabilities of trustworthiness in the declarant.
§ 1493. Same: Testimony to one's Own Age. Testimony to one's own age
may be treated in one of two ways. (1) The objection may be made that the
statement on the stand (for example, " I am twenty years of age," or, " I was
horn January 1, 1860 ") is not founded on adequate knowledge. Whether it
is so, although not based on personal observation and direct memory, but on
hearsay sources, is a question of Testimonial Qualifications. From this point
of view, it should nevertheless be regarded as admissible ; and is therefore
accepted by most Courts (ante, § 667). (2) But if it is not, it may still be
admissible, under the present Exception, as in effect an assertion of the family
reputation. Some Courts so treat it, and therefore admit it.^ The only
question can then be whether it is necessary to show that all the members of
the family are unavailable (ante, § 1481).
§ 1494. Same : Statements of Family History to Identify a Person. Where
a mere question of identity of person is involved, i. e. whether J. S., formerly
of Millville, is the same person as J. S. deceased in San Antonio, all the per-
sonal marks of the two become relevant (ante, § 411). From this point of
view the person's history, and in particular his beliefs and utterances, may
have a bearing, and therefore his claims of relationship may be receivable.
They are not offered testimonially, and therefore are not obnoxious to the
Hearsay rule (post, § 1791). It is true that their testimonial use will tend
to be employed by indirection, especially if in the case there is also an issue
as to relationship. Yet, even when offered testimonially, it would seem that
they are receivable without connecting the declarant to a particular family
by other evidence, if they concern merely the declarant's personal doings
admitted as evidence to prove the legitimacy of 51 Minn. 185, 187, 53 N. W. 541 ; 1894, State
their children"); 1862, Haddock v. R. Co., 3 v. Cougot, 121 Mo. 463, 26 S. W. 566 ("that a
All. 293 (deceased mother's statement that her witness may be permitted to state his or her own
daughter was illegitimate, admitted) ; 1890, age, subject to cross-examination as to the
"Woodward v. Blue, 107 N. 0. 407, 410, 12 S. E. sources of Bis or her information, is the settled
453 ("Was not the violent grief of David, the practice" ; but here excluded because it ap-
king, upon the death of the child, some corro- peared to rest solely on perusal of a church rec-
boration that he, and not Uriah, was its ord) ; 1897, State «. Marshall, 137 id. 463, 39
father?"). If the declarant is available, such S. W. 63, semble ; 1891, State u. Best, 108 N.C.
statements are of course inadmissible: 1825, 749, 12 S. E. 907; 1845, Watson v. Brewster,
Stegall 0. Stegall's Adm'r, 2 Brockenb. 256, 1 Pa. St. 383 ; 1884, Sitler v. Gehr, 105 id. 592 ;
262. 1877, Hart v. Stickney, 41 Wis. 630, 638 (" It
Compare the oases cited ante, § 269 (parents' was a matter of repute in the family when the
conduct as evidence of legitimacy). defendant was born, and though he could not
Distinguish the question whether a parent have any personal knowledge of [the date of]
may testify to facts of non-access as evidencing his birth, yet he might testify as to his age as
the illegitimacy of a child born after marriage, he had learned it from his parents and rela-
post, § 2063. tives " ; yet the point was not " absolutely de-
For community-repiUation of illegitimacy, see cided "). Contra : 1847, Doe v. Ford, 3 U. C.
post, § 1605. Q. B. 352 (deceased person's statement as to his
^ 1880, Cherry v. State, 68 Ala. 30 ; 1888, own age, excluded, as not based on " personal
Kreitz v. Behrensmeyer, 125 111. 141, 185, 17 knowledge"; here his testamentary capacity
N. E. 232 ("What was your reputed birthday was involved). Compare the cases cited ante,
in the family ?", allowed, the father being out § 1486.
of the jurisdiction) ; 1892, Houltont7. Manteuifel,
1856
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § 1495
(ante, § 1489). In any event, they are independently receivable so far as
they serve legitimately the purpose of identifying one person with another.^
§ 1495. (b) Form of the Assertion (Family Bibles or Trees, Tombstones,
Wills, etc.). According to the general testimonial principle (ante, §§ 789,
799), the testimonial statement may be in any form. It may be oral or
written ; it may consist in words or in conduct ; ^ it may be made by the
declarant's own writing, or by assenting to or adopting the writing of
another. This is equally true, whether the statement offered be an indi-
vidual's assertion or the family repute :
1777, Lord Mansfield, C. J., in Goodright v. Moss, Cowper 594 : " Suppose from the
hour of one child's birth to the death of its parent it had always been treated as illegiti-
mate, and another introduced and considered as the heir of the family, that would be
good evidence. An entry in a father's family Bible, an inscription on a tombstone, a
pedigree hung up in a family mansion (as the Duke of Buckingham's was), are all good
evidence."
1806, Erskine, L. C, in Vowles v. Young, 13 Ves. 140 : "Inscriptions upon tombstones
are admitted, as it must be supposed the relations of the family would not permit an in-
scription without foundation to remain. So engravings upon rings are admitted upon the
presumption that a person would not wear a ring with an error upon it.''
1811, Mansfield, C. J., in Berkeley Peerage Case, 4 Camp. 416 : " If the father is proved
to have brought up the party as his legitimate son, this is sufficient evidence of legitimacy
till impeached, and indeed it amounts to a daily assertion that the son is legitimate."
1880, Lord Blackburn, in Sturla v. Freccia, L. R. 5 App. Cas. 641 : " Snch statements
by deceased members of the family may be proved not only by showing that they actually
made the statements, but by showing that they acted upon them or assented to them, or
did anything that amounted to showing that they recognized them."
That the document containing the assertion is a formal one — as, a deed or will
— does not make the assertion inadmissible.^ That the assertion is made in
the course of a deposition or trial-testimony, is immaterial, so long as the liti-
gation does not involve a controversy rendering the statement biassed and un-
trustworthy.'* An assertion may have necessary implications which should be
given full effect by natural interpretation ; for example, an assertion by a
woman that she is a widow implies clearly enough that her husband is
deceased.* Even the failure to make an express assertion, where it would
1 1900, Young V. State, 36 Or. 417, 59 Pac. Cal. 385, 67 Pac. 331 (will) ; 1900, Summerhill
812, 60 Pac. 711 (John F.'s property was es- v. Darrow, 94 Tex. 71, 57 S. "W. 942 (will),
cheated ; plaiutitt' claimed it as lieir of Jonas F., For recitals of pedigree in ancient deeds, see
identical with John F. ; declarations of John F. post, § 1573.
as to his family relationships with persons of * Cases cited ante, §§ 1483, 1484. The
plaiTitiefs family, admitted, as identifying cir- opinion of the judges in the Banbury Peerage
cumstanees) ; and cases cited ante, §§ 270, 413, Case, 1809 (extracted in 2 Selwyn's Nisi Priusj
post, § 1791. Compare also some of the cases c. 18, 11th Eng. ed.,p. 765), excluding a certain
cited ^o-si, § 1502. bill in chancery, as a "declaration respecting
Tlie practical difference between the present pedigree," is supportable on the ground that the
rule and that of the principles above cited would fact of legitimacy, asserted in the bill, was ap-
be that the death of the declarant mnst here be parently already in controversy, for the bill was
shown. filed to perpetuate testimony of that fact. For
^ For conduct, as evidence of marriage and the use of depositions, bills, and answers, as
legitimacy, see also ante, §§ 268, 269. parties' admissions, see ante, §§ 1065, 1075.
2 1867, Smith v. Tebbitt, L. R. 1 P. & D. For certi^cafes and regrisiera of marriage, birth,
354 (deed) ; 1879, Murray v. Milner, L. K. 12 or death, see post, § 1642.
Ch. D. 849 (will); 1901, Heaton's Estate, 135 * 1897, Harman v. Steams, 95 Va. 68, 27
1857
§ 1495 EXCEPTIONS TO THE HEARSAY EULE. [Chap. XLIX
naturally have been made if the fact existed, may (on the same principle
as in § 1071, ante) be construed as an assertion that the fact does not exist,^
§ 1496. (2) Authentication ; Proving Individual Authorship. The principles
of Authentication {post, § 2129), as applicable to proof of the execution
or genuineness of a writing, are in general applicable to a writing offered
under the present exception. No special considerations here need atten-
tion, except as regards the necessity of proving the handwriting of entries
in family Bibles or the like. The fundamental idea of Authentication is
to connect the writing with the person alleged to be its author. Now
under the present exception the testimonial statement may be the asser-
tion either of an individual member or of the family. Hence, it is not
necessary, where a family Bible or family tree is offered as embodying the
family repute, to prove the entry to be that of an individual member, for
its adoption by the family makes it a family assertion :
18C0, Bigelow, C. J., in North Brookfield v. Warren, 16 Gray 174 (speaking of a pedigree-
chart) : " They are in their nature public, openly exhibited, and well-known to the family,
and therefore may be presumed to possess that authenticity which is derived from the
tacit and common assent of those interested in the facts which they record."
1876, Alrey, J., in Jones v. Jones, 45 Md. 160 : " Proof of the handwriting or authorship
of the entries is not i-equired when the book is shown to have been the family Bible or
Testament, for then the entries, as evidence, derive their weight not more from the fact
that they were made by any particular person than that, being in that place as a family
registry, they are to be taken as assented to by those in whose custody the book has been
kept." 1
On the other hand, if the signature of a specific member of the family can
be authenticated, proof of this general family-recognition, by a public exposure
of the writing, is not needed :
1831, L. C. Brougham, in Monkton v. Attorney-General, 2 Russ. & M. 163 (admitting a
signed chart) : " It is urged . . . that the principle of all those cases would exclude such
S. E. 601 (recital in a deed by a woman that she tive, the room being a general reception-room to
was a widow, admitted to show the fact of her which all visitors had access) ; 1866, Hubbard
husband's death) ; 1899, James' Estate, 124 Cal. v. Lees, L. R. 1 Exch. 258 (family Bible) ; 1896,
653, 57 Pac. 579 (declarations of intestote, that People v. Ratz, 115 Cal. 132, 46 Pac. 915 (a
he was unmarried, not admissible for heirs deny- family Bible with entries in English ; the fact
ing the alleged wife's claim ; unsound, because that the mother, who authenticated it, could not
the intestate virtually declared that there was in read or write English, held immaterial) ; 1898,
his family no person who was his wife). People v. Slater, 119 id. 620, 51 Pac. 957 (fam-
A statement that a person is the declarant's ily Bible received to show the date of a child's
" sister " or the like is to be construed as asserting birth) ; 1879, Weaver v. Leiman, 52 Md. 719;
legitimate relationship : 1867, Smith u. Tebbitt, 1848, Eastman v. Martin, 19 N. H. 157^,
L. R. 1 P. & D. 354. 1896, Union Ins. Co. v. Pollard, 94 Va. 146, 26
' 1812, Doe«. Griffin, 15 East 293 (that an ab- S. E. 421 (family Bible admissible, no matter
sent family-member had never been heard of in who made the entry). Contra, but erroneous :
the family as married, admitted) ; 1852, Crouch 1897, Supreme Council o. Coiiklin, 60 N. J. L.
V. Hooper, 16 Beav. 182, 186 (omission of entry 565, 38 Atl. 659 (family Bible, used in the fam-
in baptismal register, though other children ily, with entries in different handwriting and in
were entered, admitted) ; 1848, Copes v. Pearce, different inks ; " there is no evidence showing
7 Gill 247, 265 (lack of entry of alleged illegiti- when the dates were placed in the book or by
mate child's name in family Bible ; not given whose authority " ; not received to show the de-
weight on the facts). ceased father's age ; no precedents cited) ; 1897,
i 1846, Perth Peerage Case, 2 H. L. C. 876 State v. Hairston, 121 N. C. 579, 28 S. E. 492
(held sufficient, where the documents had been (handwriting of the mother in a Bible, spoken of
hung up on the wall of a room of a family rela- as material).
1858
§§ U80-1503] STATEMENTS ABOUT FAMILY HISTORY. § 1500
a pedigree as this, -which was not hung np or in any way made public. . . . But why is
it that the publicity is relied upon in those cases ? Why is it that the family Bible, the
public wearing of a ring, the public exposure of an inscription upon a tombstone, and
the public hanging up of the family pedigree in the mansion, are all relied upon in
respect of their publicity? It is because in all those cases the publicity supplies a defect,
there existing but not here existing, — the want of connection between the pedigree, the
tombstone, the ring, or the Bible with particular individuals, members of the family.
. . . The presumption is, it would not be suffered to remain if the whole of the family
did not more or less adopt it and thereby give it authenticity."
Moreover, even where it is offered as an individual's assertion, the indi-
vidual's personal execution of the writing is not always essential ; for he
may have adopted something written by another, — as, by wearing a ring
engraved with a marriage-date, or by ordering a tombstone to be carved, or
by carrying about a certificate of marriage.^
§ 1497. (3) Production of Original Document; Preferred Writings. If
the statement offered is in the form of a writing, the general rule requiring
the production of the writing itself {ante, § 1179), is of course applicable.^
But if the object of the offer is an oral declaration of an individual, or the
general unwritten family repute, the terms of no writing are in question,
and the rule of production is not applicable. Furthermore, it has been
already seen {ante, § 1335) that there is no general principle preferring
written statements above oral statements ; hence, the mere existence of a
written statement, in the form of a Bible-entry or the like, does not render
it necessary to use that writing in preference to independent oral statements
otherwise admissible.
2 and 3. Kind of Fact that may be the Subject of the Statement.
§ 1500. General Principle. In considering what sort of facts it is that
may be the subject of the declarations, it is seen that the limitations must
rest partly on the principles of both the second and the third groups just
considered; that is, (2) the circumstantial guarantee that ordinary family
conversation will be indifferent and sincere is true of certain topics only,
namely, the ordinary incidents of family life ; while (3) the probability that
the various members of the family will have fair information {i. e. will be
testimonially qualified) is also true for certain topics only, namely, the topics
that are most likely to be the subject of repeated conversation and of fairly
definite knowledge.^ The combined effect of these two principles, therefore, is
to limit the topics with which the declarations may be concerned to the events
2 1874, Kansas Pac. R. Co. v. Miller, 2 Colo, (leaf of Bible " blotched " but legible ; produc
442, 453, 461 (extracts from parish register, tion required) ; 1888, Ereitz v. Behrensmeyer,
passport, etc., found among deceased's effects, 125 id. 141, 185, 17 N. E. 232 (production of
and reciting his marriage and the birth and family-record required).
names of his children, admitted as statements ^ "Family transactions, ''says Mansfield, C. J.,
of the deceased) ; 1900, Hall v. Cardell, 111 la. in the Berkeley Peerage Case, 4 Camp. 416,
206, 82 N. W. 603 (leaves of a family Bible, with " are naturally talked of among the relations of
entries said to be copied from another Bible, the parties. Therefore what is thus dropped in
admitted). conversation upon siich subjects may be presumed
1 1873, McDeed v. McDeed, 67 111. 545, 559 to be true."
1859
§ 1500 EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
regarded commonly as of importance in the family life. This certainly includes
the fact and date of birth, marriage, and death, and the fact and degree of
relationship, — as has always been conceded. But there has been more or
less fluctuation and uncertainty about the exact limits to be applied, and
upon certain classes of facts some doubt still unnecessarily exists.
§ 1501. Declarations as to Place of Birth, Death, etc. The place of birth
or death — something more than the fact of birth or death — has by some
Courts been thought to be an inadmissible subject. But there is no appar-
ent reason to conclude that a statement on this topic is, from either of the
above points of view, less trustworthy :
1847, Knight-Bruce, V. C, in Shields v. Boucher, 1 DeG. & Sm. 53 (declai-ing in favor
- of statements concerning the place of birth, place of residence, and the like, so far as
material in a pedigree case) : " I own myself not convinced that the reasons and grounds
(so far as I can collect and understand them) upon which births and times of births, mar-
riages, deaths, legitimacy, illegitimacy, consanguinity generally, and particular degrees
of consanguinity and of aiBnity, are allowed to be proved by hearsay (from proper quar-
ters) in a controversy merely genealogical, are not as applicable to interrogatories . . .
like the present. . . . Who generally is more likely to know whence a man or a family
came than the man or the family? Does the emigrant, living or dying, forget his native
soil ? Is a woman less likely to state her country than her age with accuracy ? . . . N^or
are there, perhaps, any recollections or traditions of the old moj-e readily communicated
or more acceptable to an auditory of descendants than the original seat of the family, its
former residences and possessions, its migrations, its local and other distinctions of the past,
its advancement or its decay. If such topics are not strictly genealogical, they are at least
intimately connected with genealogy . . . and in the most striking manner with the
reason [of the rule]."
Such is the conclusion to-day generally and properly accepted.^ The truth
seems to be that the doubt as to receiving declarations of place was originally
due solely to a misunderstanding of the obscure language of the ruling in E. v.
Erith {post, § 1503); in that case the ruling actually proceeded on the nature
of the issue involved (post, § 1503) — a pauper's settlement — and not on
the kind of fact stated. In England this misunderstanding has now been
recognized ;^ but in the United States it has had considerable influence, and
a few Courts have excluded declarations as to place.^
§ 1502. Sundry Kinds of Facts. There is in truth no definite or formal
limitation as to the kind of fact that may be the subject of the statement.
The general inquiry, as already indicated {ante, § 1500), should be : "Were
the circumstances named in the statement such a marked item in the ordi-
1 1812, Doe V. Griffin, 15 East 293 (eject- Lord Ellentoroiigh and the Court of King's
ment ; family repute that a member had died in Bench might possibly have dealt with the evi-
the West Indies, admitted) ; 1844, Rishton v. dence differently "). See also Lord Brougham,
Nesbitt, 2 Moo. & Rob. 554 ; 1861, Attorney- Ij. C, in Monkton ». Attornev-General, 2 Russ.
General v. Kbhler, 9 H. L. C. 686 ; 1882, Wise & M. 156. Cmitra in Canada : 1885, Currie v.
V. Wynn, 59 Misa. 588, 591 ; 1818, Jackson v. Stairs, 25 N. Br. 4, 10 (entries in a family Bible,
Boneham, 15 John. 227 ; 1884, Hammond v. not admitted to prove the place of birth).
Noble, 57 Vt. 193, 203, semble. » 1821, Brooks v. Clay, 3 A. K. Marsh. 550 ;
2 1847, Knight-Bruce, V. C, in Shields v. 1826, Wilmington v. Burlington, 4 Pick. 175;
Boucher, 1 DeG. & Sm. 40 ("If the place of 1876, Tyler v. Flanders, 57 N. H. 618, 624;
birth in Rex v. Erith had been a genealogical 1827, Independence v. Pompton, 4 Halst. 212;
fact, as it was not, — had been material, namely, 1875, Carter v. Montgomery, 2 Tenn. Ch. 229.
for any genealogical purpose, which it was not,
1860
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTOEY. § 1503
nary family history and so interesting to the family in common that state-
ments about them in the family would be likely to be based on fairly accurate
knowledge and to be sincerely uttered? There is ample authority for a
broad application of this principle, although the rulings are by no means
in harmony. 1
4. Arbitrary Limitations.
§ 1503. Kind of Issue or Litigation involved. On principle, the kind of
issue involved in the litigation ought to have no bearing on the admission of
the present class of declarations. A deceased father's entry in a family
Bible is equally trustworthy or untrustworthy whether the issue subse-
quently arising happens to be framed upon a claim to an inheritance, a plea
of infancy to a promissory note, or an application to appoint a guardian. But
historically these declarations were first customarily (though not exclusively)
used in inheritance cases, where the pedigree or genealogy of a claimant was
directly a part of the issue ; and this traditional use served to give the impres-
sion to many Courts that the rule had crystallized into an arbitrary shape.
This rule, thus interpreted, says that declarations, otherwise satisfactory, can
nevertheless be used in those cases only where the issue involves as mate-
rial a question of pedigree, i. e. genealogy, — chiefly, therefore, in inheritance
cases :
1807, Lord Ellenborough, C. J., in R. v. Erith, 8 East 539 (settlement of a pauper;
the fathei-'s declarations as to his bastard birth and the place of birth were rejected) :
" The only doubt which has been introduced into this case has arisen from improperly
considering it as a question of pedigree. The controversy was not, as in a case of pedi-
gree, from what parents the child has derived its birth ; but in what place an undisputed
birth, derived from known and acknowledged persons, has happened. The point thus
stated turns on a single fact, involving no question but of locality, and therefore not fall-
ing within the principles of or governed by the rules applicable to cases of pedigree."
1891, Earl, J., in Eisenlord v. Cluvi, 126 N. Y. 552, 27 N. E. 1024 : " A case is not neces-
sarily one of that kind [pedigree], because it may involve questions of birth, parentage,
^Admitted: 1844, Eishton v. Keabitt, 2 the theory of identifying circumstances) ; 1848,
Moo. & Rob. 554 (the existence of relatives in a Story v. Saunders, 8 Humph. 667, semble (that
certain town); 1861, Attorney-General w. Koliler, S. had died in the revolutionary army) ; 1894,
9 H. L. C. 686 ("events in the early life of J. G. Byers v. Wallace, 87 Tex. 603, 28 S. "W. 1059
■which identify him with G. K."; such as his (that a person went to Texas, and enlisted in the
trade, enlistment in the army, running away army, and wa.s killed at the Fannin massacre ;
from home, sending home money, etc.) ; 1904, overruling Smith v. Shinn, infrci) ; 1869, Webb
Locklayer v. Locklayer, — Ala. — , 35 So. v. Richardson, 42 Vt. 465, 471 (time of death) ;
1008 (the declarant's negro race) ; 1900, Woolsey 1872, Du Pont v. Davis, 30 Wis. 178 (that A.
V. Williams, 128 Cal. 552, 61 Pac. 670 (enlisting was killed by the explosion of a powder-mill in
in the Federal army in the civil war, and being 1855 or 1856). Excluded: 1903, Wrights. Com.,
there killed) ; 1820, Walkup v. Pratt, 5 HaiT. & — Ky. — , 72 S. W. 340 (family tradition, to
J. 56 (the purchase and sale of a slave ; here, in show ancestral and collateral insanity) ; 1870,
order to identify the alleged ancestor and trace Crane v. Eeeder, 21 Mirh. 83 (the existence of
descent); 1879, Fraser v. Jennison, 42 Mich, heirs; failure of heirs being in issue); 1826,
206, 214, 235, 3 N. W. 882 (that two brothers Jackson v. Etz, 5 Cow. 319 (the circumstances
came from Michigan together, and were the only of the finding and burial of a body); 1897,
two brothers of the family that came) ; 1818, People v. Koerner, 154 N. Y. 355, 48 N. E. 730
Jackson o. Boneham, 15 John. 227 (the death (family reputation as to insanity) ; 1882, Smitli
in war and the place ot death of an ancestor) ; v. Shinn, 68 Tex. 1 (service in war). Compare
1900, Young V. State, 36 Or. 417, 59 Pac. 812, the Codes quoted anU, § 1480, and the cases
60 Pac. 711 (that the declarant had enlisted, cited ante, § 1494. For neighborhood-repute to
gone to Washington, deserted, etc. ; here, on this class of facts, see ^os<, §§ 1605, 1623-1626.
1861
1503
EXCEPTIONS TO THE HEARSAY RULE. [Chap. XLIX
age, or relationship. Where these questions are merely incidental, and the judgment
will simply establish a debt, or a person's liability on a contract, or his proper settlement
as a pauper, and things of that nature, the case is not one of pedigree."
This strict limitation was probably a novelty of Lord Ellenborongh's ; ' though
it came to prevail in England and in some courts of the United States.^
But in the majority of American jurisdictions this limitation is ignored ; the
declarations are now admitted whatever the general nature of the issue, and
whether or not the issue is one of genealogy, pedigree, or descent.^. This is a
just result. Any such arbitrary and unreasoning limitation places the rules
1 1664, Herbert v. Tuckal, T. Eaym. 84 (de-
visor's capacity to make a will ; father's entry
of age in almanac, admitted). In settlement
cases (which were notoriously esoteric in their
practice) Lord EUeuborough appears to have
gone directly against the previous practice : 1744,
E. u. Greenwich, BniT. Settl. Gas. I, 343 ; 1772,
K. V. Nutley, id. II, 701 ; 1782, R. v. Holy
Trinity, Cald. Just. Peace (Settl. Cas.), 141.
2 1841, Figg V. "Wedderburne, 11 L. J. Q. B.
46, semble (contract; plea of infancy); 1884,
Haines v. Guthrie, L. R. 13 Q. B. D. 818 (con-
tract (plea of infancy) ; 1897, People v. Mayne,
118 Gal. 516, 50 Pac. 654, semble (rape on a
child under 14) ; 1873, Union v. Plainfield, 39
Oonn. 564 (pauper settlement) ; 1882, Gora. v.
Felch, 132 Mass. 22 (criminal charge of abor-
tion) ; 1896, State v. Marshall, 137 Mo. 463, 36
S. W. 619 (criminal action for seduction where
the offence could by statute be committed
only upon a person under 18 years of age) ;
1826, West&eld v. Warren, 8 N. J. L. 251
(pauper settlement) ; 1891, Eisenlord v. Glum,
126Ji..Y.,552, 27 N. E. 1024 (quoted supra);
1902, Washington v. Bmk, 171 id. 166, 63
N. E. 831 (action for money in the defendant
savings bank, deposited by the plaiutiS's intes-
tate in the name of certain alleged sons, the
plaintiff claiming that the beneficiaries were
fictitious, and the defendant denying this ; held,
that the issue was as to " the right of succession
to the personal property of a deceased person "
aud therefore one of pedigree) ; 1903, Danley v.
State, — Tex. Gr. — , 71 S. W. 958, semble
(the statement of a brother, not shown to be
deceased, as to the age of a prosecutrix in rape,
excluded) ; 1876, Connecticut Mut. L. Ins. Co. v.
Schenok, 94 U. S. 598 ("The present case [an
action on a life-insurance policy] involves no
question of pedigree ; the proof of age was not
offered for the purpose of proving parentage or
descent, botli of which were impertinent to the
issue between the parties ") ; 1902, Fidelity
Mutual L. Ass'n v. Mettler, 185 id. 308, 22 Sup.
662 (insurance policy ; death of the insured) ;
1856, Londonderry v. Andover, 28 Vt. 428
(pauper settlement).
3 1880, Cheri-y v. State, 68 Ala. 30, senible (sell-
ing liquor to a minor) ; 1867, Wilson v. Brownlee,
24 Ark. 589 (action on a promissory note ; plea
in abatement that one of the joint payees was
dead) ; 1874, Kansas Pac. R. Co. v. Watson,
2 Colo. 442, 453, 461 (action by administrator
for damages for death); 1874, Southern Life
1862
Ins. Go. V. Wilkinson, 53 Ga. 547 (entries in a
family Bible ; the issue being as to the age of
the insured in an action on an insurance policy ;
§ 3772 of the Code was perhaps slightly in-
volved); 1859, Collins v. Grantham, 12 lud.
444 (plea of infancy to a note) ; 1860, Carnes v.
Crandall, 10 la. 379 {scire facias to revive a
judgment ; hearsay as to the fact of the defend-
ant's death was rejected on grounds not affecting
the nature of the issue) ; 1870, Greeuleaf v. R.
Co., 30 id. 302 (declarations of a father as to the
son's age, in an action for death by a brakeman's
carelessness, were held admissible, though ruled
out for other reasons) ; 1879, Eraser v. Jennison,
42 Mich. 206, 235, 3 N. W. 882 (will-contest) ;
1891, Lamoreaux v. Attoi'ney-General, 89 id.
146, 50 N. W. 812 (mandamus to institute quo
warranto proceedings as to the right to exercise
a sheriffs office) ; 1892, Houlton v. Manteuffel,
51 Minn. 185, 187, 53 M". W. 541 (plea of in-
fancy to action on note ; point not raised) ;
1840, Carskadden v. Poorman, 10 Watts 84
(action against a magistrate to recover a pen-
alty for marrying a minor) ; 1845, Watson u.
Brewster, 1 Pa. St. 383 (action on a note, with a
plea of infancy) ; 1846, Ford v. Ford, 7 Humph.
98 (a testator devised to negroes, and his sanity
was impeached ; hearsay was accepted to show
that they were his illegitimate children, and
thus to sustain his capacity) ; 1883, Swink i>.
French, 11 Lea 79 (in an action on a note, a
contract to extend the time was alleged, and in-
fancy was alleged in reply ; hearsay of the date
of birth was admitted) ; 1851, Primm v. Stewart,
7 Tex. 178, 182 (whether W. was dead when a
power of attorney from him was executed ; rule
held not confined "to cases where the question
is one of pedigree) ; 1900, Summerhill v. Dar-
row, 94 id. 71, 57 S. W. 942 (vendor's lien ;
whether the statute of limitations was suspended
by coverture; hermother's will-recitalsadmitted);
1872, Masons v. Fuller, 45 Vt. 30 (bastardy com-
plaint); 1884, Hammond v. Noble, 57 Vt. 193,
203, semble (petition for new trial, because of a
juror's alienage ; family declarations admitted) ;
1872, Du Pont V. Davis, 30 Wis. 178 (the death
of A. was shown, as indicating the non-necessity
of joining him as - party plaintiff in a snit re-
lating to land of which he was assumed to be
joint-tenant) ; 1877, Hart v. Stickney, 41 id.
630, 638 (plea of infancy to a promissory note ;
defendant's testimony to the family repute of his
age, admitted ; yet the point was not " abso-
lutely decided "),
§§ 1480-1503] STATEMENTS ABOUT FAMILY HISTORY. § 1503
of evidence on a par with the rule of chess that a king may move one square
only, or the rule of whist that the card played must follow the suit led, —
rules, that is, which justify their existence because they add complexity, and
therefore interest, to the game. If a trial upon evidence is a game, such
limitations have a place in the law of evidence ; if it is the employment of
rational and practical methods in the discovery of truth, such limitations
should be discarded without scruple :
1860, Bigelow, C. J., in North Brookfield v. Warren, 16 Gray 175 (admitting evi-
dential declarations where the main issue was as to a pauper's settlement) : " Upon
principle we can see no reason for such a limitation. If this evidence is admissible to
prove such facts at all, it is equally so in all cases whenever they become legitimate sub-
jects of judicial inquiry and investigation."
1883
§ 1505
BOOK I, PART II, TITLE n.
[Chap. L
Sub-title II (continued) : EXCEPTIONS TO THE HEARSAY RULE.
Topic IV : ATTESTATIOIT OF A SUBSCRIBING WITNESS.
CHAPTER L.
§ 1505. Theory of the Exception.
1. The Necessity Principle.
§ 1506. Attester must be Deceased, Absent
from Jurisdiction, etc.
2. The Circumstantial Guarantee of
Trustworthiness.
§ 1508. General Principle.
§1509. Who is an Attester; Definition of
Attestation.
3 . Testimonial Principles.
§ 1510. Attester must be Competent at time
of Attestation.
§ 1511. Implied Purport of Attestation; (1)
All Elements of Due Execution implied.
§ 1512. Same : Lack of Attestation-Clause is
Immaterial.
§ 1513. Same: (2) Must the Maimers Signa-
ture or Identity also be otherwise proved 1
§ 1514. Attester may lie Impeached or Sup-
ported like other Witnesses.
§ 1505. Theory of the Exception. It has long been unquestioned that the
attestation of an attesting or subscribing witness to a document may be used,
when the attester is unavailable in person, as evidence of the document's ex-
ecution ; and according to the orthodox form of tlie Preferred Witness rule
{ante, § 1320), the attestation must even be used in preference to other testi-
mony. There was apparently a time, to be sure, when the testimony of the
attester in person was so rigorously required that even his death could not
excuse his absence (ante, §§ 1287, 1311), and in that period it cannot be said
that the present exception to the Hearsay rule (if indeed there existed then
any Hearsay rule) was recognized. But the recognition unquestionably came
by the second half of the 1700s, and this use of an attestation has since then
been unquestioned.
What has not been always clearly understood is that such a use of an
attestation is in truth an exception to the Hearsay rule, i. e. is the testi-
monial use of an extrajudicial assertion as evidence of the truth of the fact
asserted {ante, § 1362). In practice, the dramatic feature of the evidence has
tended to obscure the legal principle ; that is to say, the mode of using it con-
sists merely in proving the genuineness of the attestor's signature to the docu-
ment. That this is after all nothing less than offering the attester's written
statement, expressly or impliedly made at the time of execution, that the
document was seen by hiin to be executed as it purports to be, seems too
clear for argument. It was always assumed in judicial opinion, until the
following perverse utterance from an eminent judge shook the faith of the
profession :
1836, Stohart v. Dryden, 1 M. & W. 615 ; declarations of a deceased attesting witness
M., whose handwriting had been proved, were oifered as amounting to an acknowledg-
ment of forgery, but were rejected ; Counsel: " Proving the signature of the deceased wit-
ness is no move than [proving] a declaration on his part that he saw the party execute the
1861
§§ 1505-1514] ATTESTING WITNESS. § 1505
deed. ... If the plaintiff is permitted to prove declarations of M. to sustain the deed,
the defendant may use them also to impugn it. If the signature does not amount to a
declaration that the witness saw the party sign, it amounts to nothing " ; Lord Abinger,
C. B. : " Is it not an assumption of yours that the signature is a declaration ? It is a
fact " ; . . . Parke, B. (for the Court) : " One of the grounds [of argument] was that as
the plaintiff used the declaration of the subscribing witness, evidenced by his signature,
to prove the execution, the defendant might use any declaration of the same witness to
disprove it. The answer to this argument is that evidence of the handwriting in the
attestation is not used as a declaration by the witness, but to show the fact that he put
his name in that place and manner in which in the ordinary course of business he would
have done if he had actually seen the deed executed. A statement of the attesting wit-
ness by parol, or written on any other document than that offered to be proved, would be
inadmissible. The proof of actual attestation of the witness is therefore not the proof of
a declaration, but of a fact."
As to this, it may be said (1) that all evidential data whatever are merely
" facts " ; the testimonial utterance of a witness on the stand is merely a
"fact," i. e. we are asked to believe that A struck B because of the evidential
" fact " that M, a competent observer, is willing to assert under oath on the
stand that A struck B {ante, § 475). (2) If, however, by " fact " the learned
judge be supposed to have meant an extrajudicial utterance, and to have
looked upon all such statements as circumstantial evidence in distinction
from testimonial evidence, then it must be answered that the distinction
between testimonial and circumstantial evidence admits of no such signifi-
cance {ante, §§ 25, 479). The Hearsay rule, to be sure, draws a distinction
between testimonial utterances made upon the stand and made off the stand
{ante, § 1 362) ; but a human assertion offered as evidence of the truth of
the assertion is testimonial evidence, no matter where it is uttered. (3) If,
finally, by " fact " the learned judge meant that the act of subscribing in at-
testation, when proved in Court for the purpose of establishing the maker's
execution, is a mere act or circumstance and not an implied assertion of the
fact of execution, his notion is clearly not correct. It might as well be
argued that, because a deponent merely signs his name to a deposition, his
act is mere circumstantial evidence and not testimony.
That this singular aberration of Stobart v. Dryden is unfounded is shown
by the constant judicial treatment of the whole subject as indicated in the
following sections (particularly in §§ 1511-1513); but the error is especially
repudiated in the following passages :
1824, Per Curiam, in Clark v. Boyd, 2 Oh. 2S0 (57) : " The proof of the handwriting
of the witness is quasi bringing him into Court. ... It proves as much as the subscrib-
ing witness can prove himself in many cases."
1842, Nelson, C. J., in Losee v. Losee, 2 John. 609 : " Proof of the signature of a
deceased subscribing witness is presumptive evidence of everything appearing upon the
face of the instrument relative to its execution ; as it is presumed the witness would not
have subscribed his name in attestation of that which did not take place. . . The attes-
tation comes in by way of substitute for his oath"; note by Mr. Nicholas Hill (after-
wards judge) : " The act of attesting an instrument is regarded as a written declaration
of the subscribing witness, to which the law, in the event of his death or abseuce, yields
a reluctant credit by way of necessary substitute for his oath."
1885
§ 1505 EXCEPTIONS TO THE HEARSAY EULE. [Chap. L
1867, Thompson, J., in Kirk v. Carr, 54 Pa. 285, 290 : " Memory can no more be kept
alive than the body, and hence the law allows the attesting signature to speak when the
tongue may be silent."
1867, Wright, J., in Boyens' Will, 23 la. 354, 357: "The witnesses to a will become
such from the moment they sign it. They testify from that moment, and hence, though
they should die before the testator or before the probate of the will, it is still good." ^
The attestation, then (when proved to have been made), by establishing the
genuineness of the signature, comes in as an extrajudicial or hearsay asser-
tion of the attester.2 What are the limitations to its use, upon the genera]
principles of the Hearsay exceptions as already expounded ?
1. The Necessity Principle.
§ 1506. Attester niust be Deceased, Absent from Jurisdiction, etc. Upon
the general principle already noted for the preceding Exceptions {ante,
§ 1421), the attester's hearsay statement cannot be used unless the attester
is unavailable for the purpose of giving testimony in person. The various
situations which fulfil this condition — death, absence from the jurisdiction,
insanity, illness, etc. — have already been fully examined in connection with
the rule of Preferred Witnesses {ante, §§ 1309-1319), and therefore need not
be again considered here. The case ot failure of memory of an attester, called
to the stand, is later examined {post, § 1511).
2. The Circumstantial Guarantee of Trustworthiness.
§ 1508. General Principle. Unquestioned as the reception of this hearsay
statement has been, no judicial attempt seems to have been made to define
the reasons for the trustworthiness thus accorded, by exception, to this class
of hearsay statements.^ The question is virtually this {ante, § 1422) : What
guarantee is there that the attester did not sign his name as attester to a
document which he did not see executed by the purporting maker? The
circumstances tending to trustworthiness seem to be four. (1) The occasion
is a formal one, and the statement requires a writing ; and there is commonly
a radical disinclination to take part in a false transaction of such a sort.
(2) The concoction of a false document will either fix an innocent party
with a false obligation or will divest legitimate heirs of their rights, and
there is a natural repugnance to giving assistance in such a wrong. (3) The
1 Accord: 1903,I"arleigh u. Kelley, — Mont, show the statutory requirement fulfilled, and
— , 72 Pac. 756 (good opinion by llolloway, J.) ; the will's execution was otherwise proved).
1830, Boylan w. Meeker, 28 N.J. L. 274, 294; ^ The following suggestions are found : 1819,
1832, Daniel, J., in Crowell v. Kirk, 3 Dev. Kirkpatrick, C. J., in Newbold i'. Lamb, 2 South.
356 ; 1847, Gibson, C. J., in Hays v. Harden, 6 N. J. 449, 451 ("The only reason why the proof
Pa. St. 412 ("the equivalent of the witnesses' of the handwriting of the subscribing witness is
oath) " ; 1848, Rogers, J., in Harden v. Hays, taken as sufficient proof of the execution of a
9 id. 156. deed is founded upon the presumption that
^ Of course, it may be proved without any what an honest man hath attested under his
attempt to use it testimonially, as where the hand is true"); 1823, Gibson, J., in Grouse v.
law requires an attestation as an element in the Miller, 10 S. & R. 158 ("The handwriting of a
validity of the document and the party desires witness, . . . standing in tlie place of the oath,
merely to show that the elements of validity derives its claim to respect from the considera-
exist; 1860, Boylan v. Meeker, 28 N. J. L. 274, tiou that the law presumes every man honest
295 (where the signature was proved merely to till the contrary appears").
1866
§§ 1505-1514] ATTESTING WITNESS. § 1510
making of a false attestation, whether or not it is in criminal law a forgery
or a perjury, is popularly supposed to be such, and the attester would prob-
ably be at least an accomplice in a forgery ; so that the subjective sanction
deterring from a crime would probably operate to prevent a false attestation.
(4)- The attester knows that he is liable at any time to be called upon in
Court to substantiate his attestation ; and not only is his falsity likely there
to be exposed by the opponent's witnesses, but he will there be obhged either
to commit perjury by swearing to the fact of execution or to undergo the
dis'agreeable ordeal of recanting and confessing his falseness. There is thus
a combination of circumstances which easily account for the establishment
of this Exception to the Hearsay rule.
§1509. "Who is an Attester; Definition of Attestation. An attesting or
subscribing witness, then, is a person who, at the request or with the consent
of the maker, places his name on a document for the purpose of making
thereby an express or implied statement that the document was then known
,by him to have been executed by the purporting maker. Only such a signa-
ture can be used as a hearsay statement. Thus, it cannot be used if the
person did not write it himself, or not at the time, or if he did not sign as an
attester but for some other purpose. These and related questions have been
already treated in examining the notion of an attesting witness under the
rule of Preferred Witnesses {ante, § 1292), and their solution would probably
be the same for the present subject. The hind of issue in which the attesta-
tion is offered is immaterial, so long as it is offered to prove the execution
of a document.-' But the only statement admissible as made under circum-
stances of trustworthiness is the written statement in the document, either
expressed or implied by the signature ; so that any oral statement otherwise
made is not receivable j^ except when offered as a self-contradiction to im-
peach the written statement {post, § 1514). The statement need not be
expressly written in full; the placing of the signature implies an assertion of
execution {post, § 1511).
3. Testimonial Principles.
§ 1510. Attester must be Competent at, time of Attestation. The
attestation is offered as the statement of the attester made at the time of
attestation. (1) Hence, if he was at that time not qualified as a witness,^
his statement in the attestation is not admissible. The usual instance of
1 Contra: 1895, Walker v. State, 107 Ala. 5, tions to the Hearsay rule could ever exist; see
18 So. 393 (perjury for falsely swearing that he ante, §§ 1397, 1398).
had not signed a conveyance; evidence of the 2 igge, Boardman v. Woodman, 47 N. H.
handwriting of a deceased attesting witness was 120, 135 (excluding statements by the deceased
not admitted to show that the defendant had witness as to the sanity of the testator • such
signed it ;" upon this question he was entitled statements are not an implied part of the
to be confronted by the witnesses against him, attestation).
and not be prejudiced by evidence that the i Whether in such a case, under the Pre-
paper bore the names, as attesting witnesses, of ferred Witness rule, he may be disregarded as
persons who are not examined on the trial"; not an attester, and need not be called or ac-
this IS unsound; on such a doctrine no excep- counted for, is a different question, treated ante
§ 1292.
VOL. II. — 55 1867
§ 1510 EXCEPTIONS TO THE HEARSAY EULE. [Chap. L
this has been the case of a disqualification by interest.^ (2) If the attester
was then qualified, but has since become disqualified to take the stand, his
attestation is receivable, because it speaks as from a time when he was
qualified.^ Whether in this case the attestation is valid as an element of
execution, under statutes requiring the attester to be a credible witness, is a
matter of substantive law not here involved.*
§ 1511. Implied Purport of Attestation; (1) All Elements of Due Execu-
tion implied. When the attester's signature is identified as genuine, what
does the attester thereby purport to testify to 1 Does he purport to testify
at all ? Assuming that the signature is appended to a clause of attestation
expressly stating the facts of execution, it is clear that the signed attestation
is a testimonial assertion of all the facts thus required to be stated. This has
never been doubted for the case of an attester deceased or otherwise unavail-
able in person. But it has not been always so easy to appreciate in the case
of an attesting witness who on being called to the stand is found to have
forgotten all the circumstances. In such a case, it is not doubted that the
proponent may, if he pleases, prove the facts of execution by other witnesses
(ante, § 1302). But, apart from that, does not the signed attestation serve
as some testimony of the facts, the attester's failure of memory having prac-
tically made his present testimony unavailable ? On this point there can be
no doubt :
1839, Tucker, P., in Clarke v. Dunnavant, 10 Leigh 13, 30, 35 : " [If the witness is dead,
or the like,] his attestation is a sufficient ground for presuming that the instrument has
been executed with all the solemnities and ceremonies required by the law. ... It is
then a question for the jury whether under the circumstances of the case it is probable
that all the formalities of the statute were regularly observed. . . . The question still
recurs whether, as the witnesses have been actually examined and have failed to prove
a compliance with all the requisitions of the statute, that compliance can be inferred
from their attestation. . . . [This is answered in the affirmative, by the precedents,]
nor do I apprehend any evil from this decision. It may perhaps sometimes lead to
the establishment of wills not duly executed, as doubtless may be the case also where
the witnesses are aU dead or absent, and everything is presumed from their attestation.
But far greater mischiefs would arise from a contrary decision, which should make the
rights of every devisee and legatee depend not only upon the honesty but also upon the
slippery memory of witnesses. Under such a decision, no man could be sure of dying
' 1793, Swire v. Bell, 5 T. B. 371 (Interest shown in any case is clear : 1850, Chaffe v.
existing at the time of attestation and since; Cupp, 5 La. An. 684 (Slidell, J., diss., being
handwriting not allowed, the case of a subse- apparently the only person who ever douhted).
quent incompetency being distinguished) ; 1841, Compare § 1104, ante.
Amherst Bank v. Root, 2 Mete. 522, 532 ; 1 813, * Compare the following;: 1865, Sparhawk v.
Hamilton v. Marsden, 6 Binn. 45, 50, per Sparhawk, 10 All. 155 (Bigelow, C. J. : " It is
Yeates, J. ; 1820, MiUer v. Carothers, 6 S. & K. to be borne in mind that the question to be
215, 222 (will) ; 1852. Harding v. Harding, 18 determined in this case is, not whether the wit-
I'a. St. 340, 342 ; 1859, Jones v. Jones, 12 Rich. ness objected to at the trial was competent to
116, 120. This question seldom arise-i under give evidence in the case, but whether he was
the present rule of evidence, because the same competent according to the rules of the common
incompetency usually malies the attestation, and law to act as a subscribing witness. If he was,
therefore the document, void in substantive law. then the will was duly attested ; hut if he was
' The cases are collected ante, § 1316, in not, then the will cannot he admitted to probate,
dealing with the excuses for not calling the because it was not subscribed in the presence of
attesting witness. the testator by three competent witnesses").
That his yood character need not first be
1868
§§ 1505-1514]
ATTESTING WITNESS.
§ 1511
testate, since the forgetfulness of a ■witness would frustrate all his precaution ; and a
question of title by will, which in the spirit of the statute of frauds, the Legislature de-
signed to rest upon written evidence alone, would after all depend upon the integrity and
the memory of those who were called on to attest the instrument. ... It would tend, I
have no doubt, to multiply the attempts, already too common, to set aside wills; since
the chances of success must be very much increased if the frailty of human memory
is to be called in to the aid of the discontented heir."
1849, Gibson, C, J., in Greenough v. Greenough, 11 Pa. St. 489, 498: " What avails it
that the man is living, if his memory is dead ? If it were blotted out by paralysis, or
worn out by decay, his attestation would stand for proof by a witness ; but it must be
immaterial how or by what means it lost its tenacity." ^
That the attestation may thus, in all cases where the witness is unable to
testify in person, be taken as evidence of the fact of execution is not doubted.^
The matter of controversy has usually been merely the effect of such evi-
dence, i. e. whether it should be given the force of a presumption or merely
suffices as evidence to go to the jury {post, §§ 2490, 2520), — a matter not
here involved.
As to the specific facts to be taken as a part of the assertion, — delivery,
presence, request, publication, and the like — , there is perhaps some room for
doubt. Assuming that there is on the document an attestation-clause of
some sort, it is generally said that the attestation is evidence of all the facts
essential to a due execution of the document under the substantive law appli-
cable to that kind of document.^ A few Courts have here and there hesi-
1 Accord: 1846, Hitch v. Wells, lOBeav. 84,
89 (in this case "where one witness is dead,
[and] another is not to be believed [in denying
attestation], and the third is an ignorant man
whose recollection fails him, you must supply it
[publication] by presumption") ; 1895, Gillis v.
Gillis, 96 Ga. 1, 23 S. E. 107 ; 1898, Thompson
V. Owen, 174 111. 229, 233, 51 N. E. 1046; 1873,
Kellum's Will, 52 N. Y. 517, 519 ("a mere
failure of memory on the part of the witnesses
shall not defeat a will, if the attestation clause
and other circumstances are satisfactory to prove
its execution "). So, too, from another point of
view, the failure of memory of an attestor called
to the stand excuses the partij under the Pre-
ferred Witness rule, as if through death or the
like his attendance could not be had (ante,
§ 1315).
2 Whether the attestation suffices under the
Quantity rale, requiring two witnesses not neces-
sarily attesters, is noted post, § 2048.
s England: 1739, Croft v. Pawlet, 2 Stra.
1109 (the attestation clause to a will said
nothTng about the witnesses' signing in the
testator's presence ; and it was objected that
" the hands of the witnesses could only stand as
to the facts they had subscribed to " ; but the
Court left it to the jury to say whether there
was "a compliance with all circumstances
[required] ") ; 1808, Milward v. Temple, 1 Camp.
375 (debt on bond ; the plaintiff put in a paper,
signed by the defendant s attorney, whereby the
signatures of the defendant and the attesting
witness to the bond were admitted; L. C. J.
EUenborongh at first doubted whether the
1869
delivery of the bond by the defendant as his
deed ought not also to have been admitted, or
must not still be proved to entitle th? plaintiff
to a verdict ; but upon con.sideration, " his lord-
ship said, as the atte-iting witness' handwriting
was admitted, this might be taken as a presump-
tive admission of all he professed to attest and
would have been called to prove"); 1834,
Tindal, C. J., in Wright v. Tatham, I A. & E.
3, 22 (" the presumption [is] that he witnessed
. all that the law requires for the due execution
of a will") ; Canada : 1843, Hamilton v. Love,
2 Kerr 243, 250 (on the facts) ; 1874, H.inlou's
Will, 15 N. Br. 136, 140; United States: Ga. :
1900, Underwood v. Thurman, 111 Ga. 325, 36
S. E. 788 (the clause " raises a presumption that
such paper was executed with all the requisite
legal formalities ") ; ///. ; 1895, Hobart v. Hobart,
154 HI. 610, 614, 619, 39 N. E. 581 (proof of
handwriting presumes due attestation ) ; 1898,
Thompson v. Owen, 174 id. 229, 233, 51 N. E.
1046; la.: 1898, Scott v. Hawks, 107 la. 723,
77 N. W. 467 (proof of handwriting is proof of
due execution, even where the testator signs by
mark); 1902, Hull's Will, 117 id. 738, 89 N. W.
979 ; Ky. : 1829, Pate v. Joe, 3 J. J. Marsh. 1 13,
116; 1847, Chisholm v. Ben, 7 B. Mour. 408,
410, semble; Mass.: 1853, Nicker.son v. Buck,
12 Cush. 332, 342 (the signature is to be taken
as "put there for the purpose stated in con-
nection with the signature"); Mink.: 1860,
Lawyer v. Smith, 8 IMich. 411, 414, 423 (iden-
tification of his signature by the witness, sufficient
to go to the jury); Miss.: 1857, Fatheree v.
Lawrence, 33 Miss. 585, 618 ; 1858, Nixon v.
§ 1511
EXCEPTIOIfS TO THE HEAKSAY RULE.
[Chap. L
tated ill regard to its application to individual kinds of facts ; tut tlie principle
as above stated is the orthodox one and is in general acceptance. It has
commonly been extended to imply an assertion of the maker's sanity!^ But
it could not cover facts not ordinarily known to the attester at the time of
execution.^
§ 1512. Same: Lack of Attestation-Clause is Immaterial. It cannot be
material, for this purpose, whether the signature is accompanied by an at-
Porter, 34 id. 697, 706; N. J. : 1819, Newbold
V. Lamb, 2 South. 449, 4.51 (an attestation-clause
not specifying sealing and delivery, lield not
sufficient to show that a scroll-seal was made
before attestation; Southard, J., diss.); 18.'58,
Mundy v. Mundy, 15 N. J. Eq. 290, 293 (" the
attestation-clause . . . is p?'i ma /acj'e evidence of
the facts stated in it") ; 1872, Alpaugh's Will,
23 id. 507 (death or non-recollection ; " the attes-
tation-clause must be talien as true ") ; 1 875,
Allaire y. Allaire, 37 N.J. L. 312, 325 ("proof
of their signature will be evidence that what
they attested in fact did take place ") ; 1876,
Tappeu V. Davidson, 27 N. J. Eq. 459 (similar) ;
1882, Turnure v. Turnure, 35 Id. 437, 440 (publica-
tion also, if recited, is presumed) ; 1 886, McCurdy
V. Neall, 42 id. 333, 7 Atl. 1566; 1887, Ayres
V. Ayres, 43 id. 565, 569, 12 Atl. 621 ; 1888, Elk-
inton V. Brick. 44 id. 154, 167, 15 Atl. 391 ; 1892,
Farley v. Farley, 50 id. 435, 439, 26 Atl 178 ;
N. Y. : 18il, Remsenu. BrinckerhofE, 26 Wend.
325, 338 (attestation-clause is "good presump-
tive evidence . . . and sufficient to prove the
will, if not refuted " ; but see ib. p. 332) ; N. C. :
18.32, Crowell v. Kirk, 3 Dev. 356, semble; Or.:
1902, Skinner v. Lewis, 40 Or. 571, 62 Pac. 523,
67 Pac. 951 ; Pa- •• 1847, Haya v. Harden, 6
Pa. St. 409, 412 (attestation is " prima facie
evidence of execution " ; here, of the testator's
signing) ; 1849, Greenough v. Greenough, 11 id.
489, 498 (attestation presumes " compliance with
the requisitions of the statute " ; here, that the
testator's name was written by his express
direction) ; 1847, Barr v. Graybill, 13 id. 396,
399 (" his memory, in respect of it, was extinct,
and he himself legally dead; . . . his attesta-
tion would have stood for proof by a witness " ;
but in this case there was not such a failure of
memory) ; 1856, Barker v. McFerran, 26 id.
211, 214 (attestation presumes "everything else
necessary to establish the will " ; here, that the
testator's name was written by his express
direction) ; 1858, Vernon v. Kirk, 30 id. 218,
224 (like Greenough v. Greenough; attestation
implies " that everything else necessary to give
the instrument validity existed " ; the Court
may treat this as a presumption to control the
jury) ; 1865, McKee v. White, 50 id. 354, 360
(like Greenough v. Greenough) ; 1867, Kirk o.
Carr, 54 id. 285, 290 (same) ; 1867, Leckey v.
Cunningham, 56 id. 370, 373 (" proof of attesta-
tion proves the will;" here, held to imply a
signing in the witness' presence) ; 1868, Hamsher
V. Kline, 57 id. 397,402, semble; S. C: 1817,
Pearson v. Wightman, 1 Mill Const. 336, 341
(publication may be presumed) ; 1831, M'Elwee
!•. Sutton, 2 Bail. 128, 129 (attestation imports
" the testimony which the law presumes liim to
give " ; " the proof of his handwriting after
his death established the deed as a true and
genuine paper, on presumptions, 1st, that if it
had not been so, he would not have witnessed
it, and 2d, that if he had been alive, he would
have given all the evidence necessary to support
it ") ; 1839, Dawson v. Dawson, Rice Eq. 243,
254 (" Attestation is evidence of what it pro-
fessedly declares " ; here an attestation of sign-
ing and sealing was held not to imply delivery) ;
1840, Edmonstou v. Hughes, Cheves 81, 83 (tlie
grantor's " signature, seal, and delivery are
proved when the handwriting of the witnesses
is proved ") ; 1892, Re Brock, 37 S. C. 348, 353
(attestation presumes all essential facts) ; St.
1839, Gen. St. 1882, § 1871, Code 1902, § 2492
(attestation and testator's signature are prima
facie evidence " that the testator did execute
the will in question in the presence of the wit-
nesses thereto"); Tenn. : 1877, Beadles «.
Alexander, 9 Baxt. 604, 609 (attestation raises
a presumption of the presence of testator) ;
1830, Crane v. Morris, 6 Pet. 598. 616 (Story, J. :
" [There arises] only a presumption of the due
execution of the deed from the mere fact that
the signature of the witness is to the attestation
clause^'); Vt.: R. S. 1839, Stats. 1894, § 2363
(the handwriting of the witnesses is usable
" where the names of the witnesses are subscribed
to a certificate stating that the will was executed
as required in this chapter "); 1901, Claflin's Will,
— Vt. — , 50 Atl. 815 (the attestation clause is
evidence of due execution); Fa.: 1799, Bogle
V. SuUivant, 1 Call 561, semble; 1846, Pollock
V. Glassell, 2 Gratt. 439, 464, semble (attestation
is evidence of a " compliance with all the cir-
cumstances ") ; IF. Va.: 1881, Webb v. Dye,
18 W. Va. 376, 388 (attestation suffices to show
all the requirements of execution) ; 1898, Thomp-
son V. Halstead, 44 id. 390, 29 S. E. 991 ; Wis. :
1903, Gillmor's Will, 117 Wis. 302, 94 N. "W. 32.
* 1900, Stevens v. Leonard, 154 Ind. 67, 56,
N. E. 27 (" The witness must be understood to
attest, not merely the act of signing, but also
the mental capacity of the testator to sign ") ;
18.30, Scribner i). Crane, 2 Paige 147, 149 (attesta-
tion implies sauity) ; 1871, Sellars v. Sellars, 2
Heisk. 430 (same) . Contra : 1 856, Baxter w.
Abbott, 7 Gray 71, 82 ; 1848, Flanders «. Davis,
19 N. H. 139, 148 (attestation does not imply
testimony to a grantor's sanity). Compare the
cases cited ante, § 689 (attesting witness qualified
to speak to sanitv).
" 1838, People v. McHenry, 19 Wend. 482,
484 (where it appeared that the signature of
the debtor was not in his handwriting, the proof
of the subscribing witness' signature was held
not to imply that the person signing for the
debtor had a power of attorney).
1870
§§ 1505-15U] ATTESTING WITNESS. § 1512
testation-clause expressly stating all the facts ; for, in the first place, the sole
object of the signature is to attest the facts of execution; secondly, the
maker and the witness may not know these facts to be essential or may not
suppose it necessary to state them in writing, although the facts have oc-
curred ; and, thirdly, experience teaches that, if heed were given to the con-
trary possibility, more genuine and properly-executed documents would fail
of proof than forged or improperly executed documents would be established
by proof of the mere signature:
1777, Lord Mannfield, C. J., in Graft v. Lord Bertie, Peake, Evidence, 72: "Dadley's
[the deceased attesting-witness] hand is proved as evidence of all he would have said if
living.''
1872, McCay, J., in Deupree v. Deupree, 45 Ga. 415, 443: " As a matter of course, the
presumption is stronger or weaker according to any material facts connected with the
case; and if it was recited, this would strengthen it. But it is a wise rule of law that
such a presumption should exist. How many wills do not come up for probate until
many years after the execution of them I Sometimes the witnesses can only recognize
their own handwriting; sometimes they can only remember the fact that the testator
signed, and perhaps only that they signed. Who was present, and all the other details,
have passed from memory. To say that under such circumstances the will is not to be
probated would be a death-blow to wills. ... I only say that if the jury had been told
there was a presumption of the presence of the testator . . . , it is possible they might
have come to a different conclusion [than they did here in finding against the will]."
Such seems always to have been the rule in England;^ and it obtains,
with scarcely an exception, in all the American jurisdictions in which the
question has arisen.^
* 1694, Dayrell v. Glascock, Skinner 413 of it would only make a difference in the ex-
(that a will-witness will not swear to execution, triusic evidence which would be required to
held, not fatal ; " if proved to be his hand, and prove that the witnesses had seen the testator
that he set It as a witness to the will, it is execute the will and that they signed it with the
sufficient to satisfy the statute ") ; 1736, Hands w. intention of attesting it at his request and in
James, 2 Comyns 531 (the clause did not recite his presence").
the witnesses' signing in testator's presence ; * To the following cases, add a few of those
per Curiam : " In case the witnesses be dead, . . . noted in the preceding section, where the doctrine
the proof must be circumstantial, and here are is apparently adopted to the present extent :
circumstances : 1. Three witnesses have set their 1900, Woodruff u. Hundley, 127 Ala. 640, 29 So.
names, and it must be intended that they did it 98 ; 1898, Tyler's Estate, 121 Cal. 405, 53 Pac.
regularly ; 2. One witness was an attorney of 928 (all the statutory requisites presumed) ;
good character, and may be presumed to under- 1838, Pennel v. Weyant, 2 Harringt. 501, 506
stand what ought to be done, rather than the (attestation implies all necessary formalities ;
contrary. ... It being a matter of fact, was but not ordinarily for a foreign will, where the
proper to he left to them [the jury]"); 1737, requirements of execution may differ from those
Brice v. Smith, ib. 539, Willes 1 (apparently, of the forum) ; 1847, McDermott v. McCormiek,
similar) ; 1844, Burgoyne v. Showier, 1 Rob. 4 id. 543 (signature as witness does rot imply
Eccl. 5 ; 1859, Thomas' Goods, 1 Sw. & Tr. 255 ; all the requisites for a will, but does for other
1860, Trott V. Skidmore. 2 id 12 ; 1890, Harris documents) ; 1872, Deupree v. Deupree, 45 Ga.
V. Knight, L. R. 15 P. D. 170 (by two judges 415, 441 (see quotation supra); 1860, Ela v.
to one; a profitable case for study; Lopes, Edwards, 16 Gray 91, 97 (mere signature may
L. J. : " The inference to be drawn in cases of suffice, if the tribunal is " reasonably satisfied
this kind depends upon a number of circum- of the fact of a proper attestation from other
stances peculiar to the cases in which they sources and the circumstances of the case ") ;
arise"). 1865, Eliot v. Kliot, 10 All. 357 (preceding case
The following is apparently the only con- approved) ; 1843, Chaffee v. Baptist M. C., 10
trary expression : 1855, Roberta v. Phillips, 4 Paige 85, 90, 91 (" the fact of such compliance
E. & B. 450, 457 (Lord Campbell, C.J. : "What may be . . . inferred from circumstances");
effect then arises from the entire absence of a 1903, Mendenhall's "Will, — Or. — , 73 Pac.
testimonium clause? A testimonium clause not 1033; 1865, McKee v. White, 50 Pa. 354, 359
being indispensable, we conceive that the absence (" The name of the deceased witness stands for
1871
§ 1513 EXCEPTIONS TO THE HEARSAY EULE. [Chap. L
§ 1513. Same: (2) Must the Maker's Signature or Identity also be other-
wise proved ? It has often been contended that the signature of the maker
also, as well as that of the attester, must be proved. This contention means
in effect that another witness to the maker's signature must be called ; for
(as has just been noted) the attestation is the attester's testimony to the fact
of execution, i. e. the placing of the signature by the purporting maker. If,
then, it is necessary to call a second witness to the maker's signature, this
must be on the supposition that the testimony of the attestation, taken alone,
does not go far enough in its implied or expressed statements. This is in-
deed the ground upon which in part the above contention has been rested.
It argues, first, that the attestation, while asserting execution by a person of
a certain name, does not sufficiently identify that person with the party in the
case. It argues, furthermore, from the point of view of policy, that a person
might be bribed to make a false attestation to a forged maker's signature, and
then to abscond, leaving it feasible to prove the document against a deceased
person by establishing the attester's genuine signature. These arguments are
presented in the following passages :
1833, Bayley, B., in Whitelocke v. Musgrove, 1 Cr. & M. 520: "I always felt this dif-
ficulty, that that proof alone [of the subscribing witness' handwriting] does not connect
the defendant with the note. . . . What is the effect which, with the greatest degree of
latitude can be given to the attestation of the subscribing witness ? It is that the facts
which he has attested are true. Suppose an attestation of an insti'ument which describes
the person executing it as A. B. of C. in the county of York. Then the utmost effect
you can give to the attestation is to consider it as establishing that A. B. of C. in the
county of York executed the instrument. But you must go a step further and show that
the defendant is A. B. of C. in the county of York, or in some manner establish that he
is the person by whom the note appears to be executed. Now what does the subscribing
witness in this particular case attest ? Why, that this instrument was duly executed by
a person of the name of Francis Musgrove. There may be many persons of that name,
and if you do not show that the defendant is the Francis Musgrove who executed the in-
strument, you fail in making out an essential part of what you are bound to prove. It is
not sufficient for the subscribing witness merely to prove that he saw the instrument
executed. . . . Why ? Because it is an essential part of the issue, which you are bound
to prove, that the instrument was executed by the defendant in the suit. It seems to me,
therefore, on principle, that you must give some evidence of the identity of the defendant
with the party who has signed the instrument."
1828, Porter, J., in D'tsmukes v. Musgrove, 7 Mart. N. s. 58, 63 : "The only case that
can be readily imagined where this rule would produce hardships is that of a stranger,
whose handwriting was little known, coming into the country and exacting obligations
before witnesses who after his departure died. No general rule can be laid down that
will not do injury in some particular cases. But that just spoken of, in our judgment, ia
nothing in comparison with the danger that might result from sanctioning the other doc-
his solemn declaration that it was executed as in the preceding section) ; '1855, Dean v. Dean,
it appears ; ... in all such cases, the proof of 27 Vt. 746, 750 (the signature, with no attesta-
the signature by the witness proves the instru- tioQ-clause, is evidence " of all those facts which
ment ; here held to imply the testator's sig- he was required to attest "; but see the statute
nature, request, etc.); 1839, Clarke u. Duuua- quoted in the preceding section); 1888, D'Hagau's
vant, 10 Leigh 13, 22, 30 ("all the necessary Will, 73 Wis. 78, 82, 40 N. W. 649 (the sig-
requisites [may be implied] . . . although the nature only is sufficient to show due execution),
memorandum of attestation is silent as to But whether a genuine presumption is raised
material ones " ; Brooke, J., diss , except where by the signature alone might be differently de-
the witnesses are unavailable ; see the quotation cided.
1872
§§ 1505-1514] ATTESTING WITNESS. § 1513
trine. The facility of proving any instrument under it is obvious. Whether forged or
not, nothing more is necessary than to procure a non-resident of the State to put his name
to it as a witness ; and thus, a paper false in itself might be established by proving noth-
ing but the truth in a court of justice." *
These arguments may be answered as follows. As to the first, it is at least
an objection which may equally be made when the attester is called to the
stand ; for he may have known A. B. to execute the document, but he may
not know him to be identical with A. B., a deceased party to the cause. Fur-
thermore, sameness of name is always some evidence, and perhaps even raises
a presumption, of identity of person ; ^ so that his attestation-statement that
A. B. executed the document is at least sufficient evidence of the identity of
that and this A. B. As to the second argument, it is also equally, though
not so strongly, available against an attesting witness on the stand ; for it is
equally possible, though perhaps more difficult, to bribe an attester to give
false testimony on the stand to a forged maker's signature. Furthermore, the
supposed requirement merely asks that another witness be brought to testify
to the maker's signature ; yet a proponent who has bribed an attesting-witness
and forged a maker's signature will presumably not lack the scruple and
the means to supply a false witness to meet this additional requirement.
Finally, to fail to impose this requirement, merely relieves the proponent
of an extra burden ; it does not sanction his supposed forgery, and does not
prevent the opponent, any more than before, from exposing the forgery, if it
is one. These answers to the above arguments on behalf of such a require-
ment are in part represented in the following passages :
1808, Marshall, C. J., in Murdoch v. Hunter, 1 Brockenb. 135, 140 : " If the plaintifi, by
proving the death and handwriting of the subscribing witness, was only let in to prove the
execution of the bond by other testimony, it would seem to be sufficient to prove the death
of the subscribing witness and to identify his person by any other proof than that of his
handwriting, — as, for instance, that he was the only person of that name in a situation
to render it probable that he could have attested the bond. [Bat] since it is not only
necessary to prove the death, but to prove the handwriting of the subscribing witness, it
would seem that something further than the mere permission to establish the execution
of the bond by other testimony was gained by this proof. This can only be the inference,
which is drawn by the law, that if the person who attested the bond was present he could
and would prove its execution. ... It would seem, then, . . . that a naked case, stand-
ing singly on this proof, would be in favor of the plaintiff. But this evidence, which is
merely circumstantial, may be met by other circumstantial evidence. W^hatever deducts
from it may and ought to be weighed against it. It is therefore always advisable to sup-
port it by other testimony, if such testimony be in the power of the plaintiff. . . . The
Court is inclined to the opinion that, in a case unsupported and unopposed by any other
circumstance whatever, this proof would be deemed sufficient to establish the execution
of the bond."
1838, Nelson, C. J., in Kimball v. Davis, 19 Wend. 442 : " It seems to me, if proof of
the signature of the witness amounts to anything, it must be carried in the first instance
as far as an acknowledgment goes ; otherwise it affords no evidence of the execution at
'^ Further expositions of the same notion will J., in Plunket v. Bowman, 2 McCord 139, 140
also be foand here and there in the qnotations (1822).
in § 1320, ante ; a good opinion is that of Gantt, * Post, § 2529.
1873
§1513
EXCEPTIONS TO THE HEAKSAY RULE.
[Chap. L
all, because so much is essential to make out what the face of the deed purports, or any
proof of the execution by the grantor."
These arguments, it would seem, should conclude us against imposing such
a requirement as a general rule. The preferable rule is to allow the at-
tester's signature to suffice, in the absence of special circumstances which
might justify the trial Court, in its discretion, in exacting something more.
At the same time, where the alleged maker is deceased (as in the case of
wills), and therefore the counter-proof may likely be less available, it would
be proper enough to insist on the present requirement.
So far as concerns the state of the law in the various jurisdictions, the
requirement has been by some Courts repudiated, by others sustained ; and
the jurisdictions are fairly divided on the question ; except that statutes
almost always sanction the requirement for wills.^ Of those jurisdictions
tion as to which eminent judges have certainly
entertained drSerent opinions. It seems clear
from the ease of Wallis v. Delancey that Lord
Kenyon was of opinion that snch evidence was
necessary ; and it is clear that Lord EUenbor-
ongh had not made up his mind upon the sub-
ject, because in Nelson v. Whittall he did not
take upon himself to say what would be the case
if no evidence of identity had been given. The
opinion of Lord Tenterden was certainly invari-
ably the other way, and Lord Chief Justice Best
acted on the same view of the subject as Lord
Tenterden") ; 1841, Jones v. Jones, 9 M. & W.
75 (King's Bench; the attesting witness testified
to the maker's signature " Hugh Jones," but
could not identify him with defendant, and it
appeared that the name was there a common
one; further evidence of identity held neces-
sary ; Parke, B. : " This point must be con-
sidered as settled by the case of Whitelocke v.
Musgrove"); 1841, Greenshields v. Crawford,
ib. 314 (biU drawn on "Charles Banner Craw-
ford" and accepted "C. B. Crawford"; held
sufficient ; Alderson, B. : " It is quite a different
question whether . . . [proof of an attesting
witness' signature suifices] ; I agree that in
such a case there should he some additional
evidence"); United States: Ala.: 1887, Snider
V. Burks, 84 Ala. 53, 56, 4 So. 225 (Other evi-
dence of testator's signature, not required for
wills); 1897, Smith v. Keyser, 115 id. 455, 22
So. 149 (witness' signature sufficient; here, a
deed) ; Del. : 1837, Layton v. Hastings, 2 Har-
ringt. 147 (witness ignorant of the maker's
identity, but proving his own signature ; proof
also of the maker's handwriting, sufficient) ;
Ga.: 1849, Watt v. Kilburn, 7 Ga. 356, 358
(witness' signature suffices) ; 1850, Settle v.
Allison, 8 id. 201, 206 (same); 1861, Howard
v. Snelling, 32 id. 195, 202 (other evidence of
maker's signature, not required; but here the
maker signed by mark) ; 1 895, McVicker r.
Conkle, 96 id. 584, 586, 24 S. E. 23 (proof of
the maker's signature not necessary ; but the
policy of this doubted by Atkiuson, J. ; the
maker's signature held necessary where it was
to be used merely as a standard for comparison
of hands) ; ///. ; 1851, Newsom v. Luster, 13 111.
175 {" evidence of the handwriting of both party
' The rulings in the various jurisdictions are
as follows ; but the statutes, which in the case of
wills often expressly prescribe a rule, have been
collected in one place, to avoid repetition, ante,
§ 1320 (where they are involved in the rule of
Preferred Attesting Witnesses) ; the cases on
the Presumption from Identity of Name (post,
§ 2529) may also be profitably consulted: Eng-
land : ante 1767, Buller, Nisi Prius 171 ("Proof
that one who called himself B. executed Is not
sufficient if the witness did not know it to be
the defendant " ; said of a witness on the stand) ;
1779, Coghlan v. Williamson, 1 Dougl. 93 (Mans-
field, L. C. J., allowed proof of both signatures,
but it does not appear that he required it) ;
1798, Buller, J., in Adam v. Kerr, 1 B. & P. 360
(" The handwriting of the obligor need not be
proved ; that of the attesting witness, when
proved, is evidence of everything on the face of
the paper ; which imports to be sealed by the
party") ; 1790, Wallis v. Delancey, 7 T. li. 266,
note (bond executed abroad; Lord Kenyon,
C. J., ruled that the handwriting of the obligor
as well as of one witness must be proved) ; 1817,
Parkins !'. Hawkshaw, 2 Stark. 239, Holroyd, J.
(an attesting witness saw execution by a person
introduced as H. ; held, further evidence neces-
sary) ; 1817, Bayiey, J., in Nelson «. Whittall,
1 B. & Aid. 19, 21 ("If the attesting wituess
himself gave evidence, he would prove, not
merely that the instrument was executed, but
the identity of the person so executing it";
and he required the same when the attester's
signature was used) ; 1827,- Page v. Mann, Moo.
& M. 79 (the attesting witness' signature having
been proved, evidence that the defendants were
the parties whose signature he had attested was
held unnecessary; Tenterden, L. C. J., would
not follow Bayiey, J., in Nelson v. Whittall:
" The practice has been otherwise ; . . . if I am
wrong, I may be corrected"); 1828, Kay i>.
Brookman, 3 "C. & P. 555, 556 (a power of at-
torney ; Best, C. J. : " It has been the uniform
practice only to prove the handwriting of the
attesting witness, and I am of opinion that it
is the most convenient course"); 1833, White-
locke V. Musgrove, 1 Cr. & M. 520 (Exchequisr;
see quotation supra ; other evidence of maker's
identity required ; BoUaud, B. : " It is a ques-
1874
§§ 1505-1514]
ATTESTING WITNESS.
§ 1513
sustaining the contention, some require, having respect to the first argument
above noted, that other evidence of the maker's identity be offered ; some
and witness would be requisite " for documents
required by law to be attested) ; 1895, Hobart v.
Hobart, 154 id. 610, 615, 39 N. E. 581 (whether
the testator's signature also must always be
proved, undecided) ; Jnd. : 1828, TJngles v.
Graves, 2 Blackf. 191 (not decided); la.: 1898,
Scott w. Hawk, 105 la. 467, 75 N. W. 368 (not
decided; will); La.: 1828, Disraukes v. Mus-
grove, 7 Mart. n. s. 58, 60 (other evidence of
maker's signature required) ; 1836, Tagiasco v.
Molinari, 9 La. 512, 521 (same ; except where
the maker signs by mark) ; 1837, Madison v.
Zabriskie, 11 id. 247, 251 (same); 1847, Harris
V. Patten, 2 La. An. 217 (approving the preced-
ing cases) ; 1 849, Rachal v. Eachal, 4 id. 500
(not required ; preceding cases not noticed) ;
1850, Chaffe V. Cupp, 5 id. 684 (required;
earlier cases followed with hesitation ; rule not
applied where the obligor signs by mark) ;
1851, Smith v. Gibbon, 6 id. 684 (not dear) ;
1854, Wattles v. Conner, 9 id. 227 (required;
earlier cases followed) ; 1857, McGowan v.
McLaughlin, 12 id. 242 (same); Md.: 1800,
Collins V. Elliott, 1 H. & j. 1 (signatures "of
the testator and of all the witnesses," required
for a will); 1864, Keefer v. Zimmerman, 22
Md. 274 (St. 1825, c. 20, making it lawful not
to call the attesting witness, does not make
proof of the grantor s signature preferable, and
allows proof of the witness' signature as be-
fore) ; Mo. : 1874, Gallagher v. Delargy, 57
Mo. 29, 36 (witness' handwriting, no dispute as
to identity, and direct testimony of execution ;
sufficient) ; N. B. : 1848, Cram v. Ingalls, 18
N. H. 613, 616 (for a mortgage, where wit-
nesses are required by law, the grantor's and
both witnesses' signatures must be proved) ;
N. J. : 1832, Kingwood v. Bethlehem, 13 N. J. L.
221, 226 (indenture of apprenticeship ; other
evidence of the maker's signature required) ;
N. Y.: 1800, Mott V. Doughty, 1 John. Cas.
230 (bond ; the obligor's handwriting need not
be proved ; here the witness was dead) ; 1809,
Sluby V. Champlin, 4 John. 461, 467 (same ;
here the witness was in foreign parts) ; 1822,
Jackson v. Legrange, 19 id. 386, 389 (will;
other evidence of testator's signature required) ;
1825, Jackson v. Luquere, 5 Cow. 221, 225
(same) ; 1828, Jackson v. Vickory, 1 Wend. 406,
412 (same); 1833, M'Pherson v. Rathbone, 11
id. 96, 99 (requirement repudiated for a deed) ;
1834, Jackson v. Waldron, 13 id. 178, 197, per
Tracy, Sen. (preceding case approved); 1838,
Kimball v. Davis, 19 id. 437, 442 (deed ; require-
ment as to maker's identity repudiated ; see
quotation supra); 1840, s. c, appealed, s. v.
Brown v. Kimball, 25 id. 259, 270, 273 (Ver-
planck, Sen., in cases where there was "any-
thing to raise a counter-presumption of fraud
or even of doubt," required additional evidence
of either the signature or of the identity of the
grantor ; but whether he meant by " identity,"
the bearing of the signed name by the grantor,
or the grantor's identity with another person,
was not stated ; Walworth, C, and Edwards,
Sen., thought proof of the witness' signature
187
was sufficient; by 11 to 9 the former opinion
prevailed) ; 1844, Northrop v. Wright, 7 Hill
476, 493 (preceding case questioned); N. C:
1792, Nelius v. Brickell, 1 Hayw. 19 (bond ;
other evidence of the maker's signature re-
quired) ; 1793, Jones v. Brinkley, ib. 20, semble
(bond ; contra.) ; 1798, Irving v. Irving, 2 id. 27
(bond; like the first case); 1818, Stump v.
Hughes, 5 id. 93, semble (witness' handwriting,
and either grantor's handwriting or an admis-
sion of signature, or the handwriting of both
witnesses, required) ; Oh. : 1824, Clark v. Boyd,
2 Oh. 280 (57) ("under proper circumstances
. . . either may be sufficient " ) ; 1 858, Richards
V. Skiff, 8 Oh. St. 586 (other evidence not
required); Pa.: 1810, Clark v. Sanderson, 3
Binn. 192, 196 (bill; other evidence of the
maker's signature, suggested as desirable but
not as settled law) ; 1813, Hamilton v. Marsden,
6 id. 45, 47, 50 (requirement repudiated ; here
for a lease) ; 1815, Powers v. M'Ferran, 1 S. &
R. 44, 46 (requirement repudiated ; here for a
deed); 1847, Hays v. Harden, 6 Pa. St. 409,
412 (" [The witness' signature], when it is all
that can be had, is an equivalent of the wit-
ness' oath ; and, being prima fncie evidence of
execution, it is not indispensable that it be
followed by evidence of the handwriting of the
grantor, obligor, or drawer of a bill or note " ;
here applied to a will) ; 1857, Transue v. Brown,
31 id. 92, semble (same); 1868, Hamsher v.
Kline, 57 id. 397, 402 (signature of the witness,
with evidence of Identity of the maker's name,
sufficient) ; S. C. : 1798, Hopkins v. DeGraffen-
reid, 2 Bay 187, 192 (for a "bond or deed,"
and here for a will, other evidence of maker's
signature required) ; 1803, Turner v. Moore,
1 Brev. 236 (release; witnesses absent; proof
of their handwriting held sufficient, without
proof of the obligor's) ; 1810, Shiver v. John-
son, 2 id. 397 (witness' hand alone, sufficient,
even where the maker signs by mark) ; 1820,
Bussey v. Whitaker, 2 N. & McC. 374 (note
signed by mark ; subscribing witness' signature,
sufficient; 1822, Plunket v. Bowman, 2 McC.
139 (bond ; signature of both witness and maker
required for all documents) ; 1827, Sims v.
DeGraffenreid, 4 id. 253 (deed; both required);
1840, Edmonston v. Hughes, Cheves 81, 83
(other evidence of the grantor's signature not
necessary; "but it is usual to prove his hand-
writing, and where it can be done, it is safest
and best to prove it"); 1841, Trammell v.
Roberts, 1 McM. 305, 307 (both required at
common law; here for a note); 1858, Russell
V. Tunno, 11 Rich. 303, 318 (other evidence of
the maker's handwriting or " something else to
connect him with the instrument," necessary in
addition to the witness' signature ; here applied
to an assignment ; Plunket o. Bowman fol-
lowed) ; 1859, Jones V. Jones, 12 id. 116, 120
(preceding case approved) ; 1878, Lyons v.
Holmes, 11 S. C. 429, 432 (handwriting of the
two witnesses to a maker signing by mark, held
sufficient, without other evidence of the mark,
there being corroborating evidence besides;
§ 1513 EXCEPTIONS TO THE HEARSAY EULE. [Chap. L
require, having in view the second argument, that other evidence of the
maker's signature be offered ; some, again, require that evidence be offered of
either the one or the other ; and there are more sub-varieties of rule. In
England, there was for a long time a varying practice, until finally a require-
ment apparently became fixed that other evidence of the maker's identity
should be offered. In this country, the requirement, when any has been
made, has usually been of other evidence of the maker's signature ; though
a few Courts have properly left the matter to depend on the circumstances of
each case.
Whether the attester's signature must be proved, or the maker's alone suf-
fices, is a different question, involving the rule of Preference for Attesting
Witnesses, and has been examined under that head {ante, § 1320).
§ 1514. Attester may be Impeacbed or Supported like other Witnesses.
Since the attestation is offered as testimonial evidence of the attester speak-
ing at the time of attestation {ante, § 1505), his statement, though he him-
self is not on the stand, may be impeached or supported as any witness'
statements may be:
1860, Wkelpley, J., in Boylan v. Meeker, 28 N. J. L. 274, 294: •• "Whenever the attesta-
tion is offered in evidence as proof of the execution Of the instrument, any evidence which
■would have been competent against the witness, had he been sworn, will be competent to
overthrow the force of his declaration offered in evidence instead of his testimony."
(1) Thus his moral character as a witness may be impeached in the way
{ante, §§ 920, 977) appropriate for an ordinary witness.^ He may also be
impeached by evidence of Mas or interest^ or of self-contradictions or incon-
sistencies,^ or by other appropriate evidence.
Russell V. Tnimo not overruled, but regarded is evidently the general one) ; 1868, Chamber-
as not to be extended; here there was such lain v. Torrance, 14 Grant Ch. U. C. 181, 184
additional evidence as Russell v. Tunuo re- (deed attempted to be proved by thirty years'
quired) ; 1892, Martin v. Bowie, 37 id. 102, 115, age) ; Me. Pub. St. 1883, c. 82, -§ 114 (former
15 S. E-. 736 (deed; witness' proof of his own testimony of deceased subscribing witness, ad-
and the maker's signature, not enough; a sin- missible in certain suits, may be impeached
gular novelty) ; Tenn.: 1850, Jones o. Arterburn, like that of a living witness) ; 1843, Lawless u.
11 Humph. 97, 103 (" the signature of the tes- Guelbreth, 8 Mo. 139, 142; 1903, Farleigh v.
tator, though not absolutely essential, ought to Kelley, — Mont. — ,72 Pac. 756 ("thepetitioner
be superadded"); 1855, Harrel v. Ward, 2 may not have the benefit of the testimony of
Sneed 610, 612, semble (other evidence of the the two witnesses . . . without having such
maker's signature not necessary, unless required witnesses subject to be discredited " ; here, by
to prove identity) ; Tex. : 1878, Gainer v. Cot- bad reputation for honesty and integrity) ; 1842,
ton, 49 Tex. 101, 118 (not clear) ; U. S.: 1808, Losee v. Losee. 2 Hill 609, 611; 1854, Stater.
Murdock v. Hunter, 1 Brockenb. 135, 139 (signa- Thomason, 1 Jones L. 274,sem6fe ; 1848, Harden
ture of the witness, usually enough ; see quota- v. Hays, 9 Pa. St. 158 ; 1820, Gardenhire v. Parks,
tion supra) ; 1823, Spring v. Ins. Co., 8 Wheat. 2 Yerg. 23. This is of course allowable where
268,283 (where both are dead, other evidence the witness is on the stand: 1832, Vandyke v.
of the signature of the party is required) ; 1830, Thompson,! Harringt. 109 (a subscribing wit-
Walton V. Coulson, 1 McLean 120, 124 (not ness who merely testifies to execution may be
required, "in ordinary cases ") ; 1882, Stebbins impeached).
0. Duncan, 108 U. S. 32, 2 Sup. 313 (on objection Compare the cases cited ante, § 68 (character
that " as the testimony to establish its execution of a third person alleged to have forged a will),
was the proof of the handwriting of subscribing " 1 868, Cliamberlain v. "Torrance, 14 Grant
witnesses, it was necessary to prove the identity Ch. U. C. 181, 184 (bias).
of the grantor," the identity was then proved * The authorities will be found ante, § 1033,
by other evidence) . because the question is complicated by the sup-
"■ 1836, Doe v. Harris, 7 C. & P. 330, Cole- posed necessity of inquiring of the witness be-
ridge, J. (here for " the attorney who prepared fore proving the inconsistent statement,
tlie will " ; but the notion in the Court's mind
1876
1505-1514]
ATTESTING WITNESS.
§ 1514
(2) The party offering his attestation may in turn endeavor to rehabilitate
him, by evidence of his good character^ or otherwise, according to the prin-
ciples applicable to the corroboration and rehabilitation of witnesses {ante,
§§ 1100-1144).
* 1801, Doe V. Walker, 4 Esp. 50, Keuyon,
L. C. J. (deceased witnesses to a will; by the
testimony of the survivor of three, the conduct
of all appeared fraudulent ; the good character
of the deceased two was admitted) ; 1829, Provis
V. Keed, 5 Bing. 435, 438 (deceased attorney
who had prepared the will and was attesting
witness; good character received in support,
after imputations cast upon it ; Best, C. J. :
" The two decisions which have been cited, one
of them from no less an authority than Lord
Kenyon, are clearly in point ; I have repeatedly
tendered such evidence myself in similar cases
when at the bar ; I have had it tendered on the
other side and have never objected ; and the
common practice of Westminster Hall has al-
ways been to receive it"; Park, J., reaffirmed
this, and Burrough, J., referred to Doe v. Wood,
unreported) ; 1784, Com. o. Pairfield, Mass.,
Dane's Abr. c. 84, art. 2, § 3, semble ; 1838,
People V. Rector, 19 Wend. 569, 580 (good
character received, after imputations of fraud) ;
1823, Crouse v. Miller, 10 S. & R. 158 (same);
1839, Braddee v. Brownfield, 9 Watts 124 (ad-
missible ; but whether merely because he is
deceased, or not until his character is impeached,
or in what way it must be impeached, does not
appear).
1877
§ 1517
BOOK I, PAKT II, TITLE 11.
[Chap. LI
SuB-TiTLK II (continued) : EXCEPTIONS TO THE HEAESAY EULE.
Topic V : REGULAR ENTRIES.
CHAPTER LI.
§ 1517. In general.
§ 1518. History of the Two Branches of the
Exception.
§ 1519. Statutory Regulation.
A. Regular Entries in Genekal.
1. The Necessity Principle.
§ 1521. Death, Absence, etc., of the Entrant.
2. The Circumstantial Guarantee.
§ 1522. Reasons of the Principle.
§1523. Regular Course of Business; (1)
Business or Occupation.
§1524. Same: English Rule; Duty to a
Third Person.
§1525. Same: (2) Regularity.
§ 1526. Contemporaneous with the Transac-
tion.
§ 1527. No Motive to Misrepresent.
§ 1528. Written or Oral Statement.
3. Testimonial Qualifications, and Other
Independent Rules of Evidence.
§ 1530. Personal Knowledge of Entrant;
Entries by Booklceeper, etc., on report of Sales-
man, Teamster, etc.
§ 1531. Form or Language of the Entry
Impeaching the Entrant's Credit.
§ 1532. Production of Original Book.
§ 1533. Opinion Rule.
B. Parties' Account-Books.
§ 1536. In general.
1. The Necessity Principle.
§ 1537. Nature of the Necessity.
§ 1538. Not admissible where Clerk was
Kept.
§ 1539.
Loaus.
§ 1540.
Not admissible for Cash Payments or
Not admissible for Goods delivered to
Others on Defendant's Credit.
§ 1541. Not admissible for Terms of Special
Contract.
§ 1542. Not admissible in Certain Occupa-
tions.
§ 1543. Not admissible for Large Items, or
for Immoral Transactions.
§ 1544. Rules not Flexible ; Existence of
Other Testimony in Specific Instances does not
exclude Books.
2. The Circumstantial Guaiantee.
§1546. General Principle ; Regularity of En-
try in Course of Biisiness.
§ 1547. Regularity, as affecting Kind of Oc-
cupation or Business.
§ 1 548. Sailie, as affecting Kind of Book ;
Ledger or Daybook.
§ 1549. Same, as affecting Kind of Item or
Entry ; Cash Entry.
§ 1550. Contemporaneousness.
§ 1551. Book must bear Honest Appearance.
§ 1552. Reputation of Correct and Honest
Bookkeeping.
3. Testimonial Qualifications, and Other
Independent Rules of Evidence.
§ 1554. Party's Suppletory Oath; Cross-Ex-
amination of Party ; Use of Books by or against
Surviving Party.
§ 1555. Personal Knowledge of Entrant;
Party and Salesman verifying jointly.
§ 1556. Form and Language of Entry; Ab-
sence of Entry.
§1557. Impeaching the Book; Opponent's
Use of the Book as containing Admissions.
§1558. Production of Original Book ; Ledger
and Daybook.
4. Present Exception as affected by
Parties' Statutory Competency.
§ 1559. Theory of Use of Parties' Books as
Hearsay.
§ 1560. Statutory Competency as Abolishing
Necessity for Parties' Books ; Using the Books
to aid Recollection.
§ 1561. Relation of this Branch to the main
Exception; Books of Deceased Party; Books
of Party's Clerk.
§ 1517. In general. To this Exception there are two branches. Histor-
ically, they are separate, yet traceable to a common origin. Theoretically,
they are by no means identical, yet closely related in principle. The main
branch has a legitimate and living place among the Hearsay Exceptions.
The other branch (for parties' account-books) has no longer on the whole
any justification for a separate existence, and remains only as a fixed tradi-
1878
§§ 1517-1561] EEGULAE ENTRIES. § 1518
tion, surviving, in a form more or less modified by statute, after the reasons
for its establishment have passed away. The former involves a general ex-
ception in favor of regular entries made in the course of business (but in
England only in the course of a specific duty), the entrant being no longer
available as a witness on the stand. The latter sanctions the admission of a
narrower class of regular entries, i. e. made by a party to the suit, whether
available as a witness or not. The history of the two branches of the Excep-
tion must be considered before examining the tenor and limitations of each.
§ 1518. History of the Two Branches of the Exception. ^ (1) (a) First,
there appears in England, at least as early as the 1600s, a custom to receive
the shop-books of " divers men of trades and handicraftsmen " in evidence
of "the particulars and certainty of the wares delivered" ; and this whether
the books were kept by the party himself or by a clerk, and whether the
entrant were living or dead. But there was more or less abuse of this evi-
dence, in " leaving the same books uncrossed and any way discharged " and
still suing for the claim. Moreover, the whole proceeding was also discred-
ited as involving the making of evidence for one's self, for " the rule is that a
man cannot make evidence for himself."^ In 1609, then, a statute,^ after
reciting these considerations, forbade this use of parties' shop-books " in any
action for any money due for wares hereafter to be delivered or for work
hereafter to be done," except (a) within one year after the delivery of the
wares or the doing of the work, (&) where a bill of debt existed, (c) " between
merchant and merchant, merchant and tradesman, or between tradesman and
tradesman," for matters within the trade. The higher Courts, applying the
principle that a man cannot make evidence for himself, ultimately made this
exclusion complete, by refusing to recognize these books at all, after the ex-
piration of the year.^ In the lower courts, it is true (the Small Causes Court
of London and provincial Courts of Eequest, succeeded by the County
Courts), where the jurisdiction was limited to small claims, the use of these
books continued to be a common practice, in many if not in all, — where
indeed the general rules of evidence were perhaps, in the absence of counsel,
more or less relaxed.* But, apart from this local usage, the books of a party
ceased after the 1600s to form the subject of a hearsay exception at common
* The history of the exception was first ex- 1900, vol. VI, pt. I, pp. 421, 423) ; e. g. in 1575,
pounded by Professor Thayer, in bis Cases on " ad fraudem occaaiones tollendas, aromatario-
Evidence, 1st ed., 471, 506, 516. rum libris, ultra tres annos fides in judiciis ne
2 1609, St. 7 Jac. I, c. 12, continued by St. habeatur," etc.; in 1582, "s'abbi da dare intera
3 Car. I, c. 4, § 22; St. 16 Car. I, c. 4; Eev. fede in giudizio insino alia somma di 10 scudi."
St. I, 691. The practice of receiving the books appears
It vfould seem, however, that this English considerably earlier in England, in the ecclesi-
statute was merely falling in with a movement astical Courts at least : 1552, Reformatio Legum
which had for a generation been proceeding, all Ecclesiasticarum, tit. De fide, c. 5.
along the line, in other headquarters of the ' Crouch v. Drury, 1 Keble 27 (1 661 ) ; Smart
mercantile world. The precise features of the v. Williams, Comb. 247 (1694) ; Glynn v. Bank
statute, namely, exclusion of mercantile books of England, 2 Ves. 38 (1750) ; Lefebure v.
from evidence above a certain sum and be- Worden, 2 Ves. 54 (1750); Digby w. Stedman,
fond a certain time, are found in numerous 1 Esp. 328 (1795) ; Sikes v. Marshall, 2 id. 705
talian and French ordinances of the same (1798).
epoch, several of which dated between 1575 and * Thayer, ubi supra, ex relatione an English
1609 (Fertile, Storia del diritto italiano, 2d ed., judge (Thomas Hughes).
1879
§ 1518 EXCEPTIONS TO THE HEAESAY EULE. [Chap. LI
law in England. They came in again only under statutory rules of the late
1800S.6
(6) Next, however, it appears that before the end of the same century of
the above statute (1600) the entries of a deceased clerk (even a clerk of a
party) began to be admitted, on a principle distinctly that of the preceding
Hearsay exceptions (ante, §§ 1421, 1422), — necessity and trustworthiness.
At that time there was hardly a conscious and definite recognition of the
scope of the Hearsay rule {ante, § 1364), but the idea was the fundamental
idea of its exceptions. The admission of these books was treated as anoma-
lous, and it was distinctly understood that their use, though affording some
concession to parties, was an essentially different thing from the use of books
kept by a living party himself. The cases begin with the 1700s;® Price v.
Lord Torrington is the one most frequently taken as the landmark of the rule.
The attitude of the Courts at this time may be gathered from the following
language of Lord Chancellor Hardwicke, in 1750, in Lefebure v. Worden:
" It must be admitted that by the rules of evidence no eiitry in a man's own books by
himself can be evidence for himself to prove his demand. So far [nevertheless] the
Courts of justice have gone (and that was going a good way, and perhaps broke in upon
the original strict rules of evidence), that where there was such evidence by a servant
known in transacting the business, as in a goldsmith's shop by a cashier or bookkeeper,
such entry, supported on the oath of that servant that he used to make entries from time
to time and that he made them truly, has been read. Farther, where that servant, agent,
or bookkeeper has been dead, if there is proof that he was the servant or agent usually
employed in such business, was intrusted to make such entries by his master, [and] that
it was the course of trade, — on proof that he was dead and that it was his handwriting,
such entry has been read (which was Sir Biby Lake's Case). And that was going a great
way ; for there it might be objected that such entry was the same as if made by the
master himself ; yet by reason of the difficulty of making proof in cases of this kind, the
Court has gone so far."
The admission thus far made covered only the books of the clerk of a
party. But already there were instances foreshadowing a wider principle.
In several rulings, books regularly kept by persons then deceased had been
admitted, his death and the regularity of the book being more or less ex-
plicitly recognized as the grounds of admission.'^ Finally, in 1832, in Doe v.
Turford,^ following one or two minor cases, the doctrine was placed on a firm
footing, and the general scope of the exception was recognized. /It was under-
stood to cover all entries made " by a person, since deceased, in the ordinary
course of his business," whether a person wholly unconnected with the
parties, or the clerk of a party, or the party himself ; and it is this general
exception that to-day is universally recognized.
" See the quotations in the next section. Sir Biby Lake's Case, Theory of Evidence, 93
Meantime, it is true, there was some recognition (1761); Glynn v. Bank of England, supra;
iu chancery practice: 1828, L. C. Hart, in Kil- Lefebure v. Worden, supra.
bee w. Sneyd, 2 Moll. Ire. 186, 196 (used by the 'Smart v. Williams, Comb. 247 (1694);
Chancellor " to inform his mind, although per- Woodnoth w.Lord Cobham, Bunbury 180 (1724) ;
haps not absolutely to govern his decision "). Sutton r. Gregory, Peake's Add. Cas. 150 (1797).
« Pitman v. Maddox, 1 Ld. Raym. 722 (1698- ' 3 B. & Ad. 890.
99) ; Price v. Lord Torrington, 2 id. 873 (1703) ;
1880
§§ 1517-1561] KEGULAE ENTRIES. § 1518
(2) (a) The history of the doctrine was widely different in the United States.
The English statute of 1609, or a similar one, for parties' shop-books, was in
force, to a considerable extent, in the Colonies. In the Plymouth Laws, as
well as in the later laws of Massachusetts, Connecticut, and other New Eng-
land States, the use of parties' account-books was limited, but still authorized,
by statutes ; a special action of " book-debt " was in some places authorized.^
In New York and New Jersey the use seems clearly traceable tb Dutch
practice,^" which however did not vary in essentials from the English. In
most of the jurisdictions (though not in all) the party was allowed and re-
quired to verify the accounts by a " suppletory " oath ; but in all jurisdic-
tions, though there were practically no limitations of time (as there were in
England) to the use of the books, there were many restrictions as to the kind
of business, the kind of transaction, and the like, which rested on the same
distrust of a party's own evidence and seriously limited the use of the books.
But a cardinal feature of the attitude of the Courts, peculiar to the United
States, was that the evidence was treated on the same grounds already set
forth {ante, §§ 1421, 1422) as underlying the Hearsay exceptions generally,
— the principles of necessity and of a circumstantial guarantee of trust-
worthiness. The necessity was the fact that so many small traders, in the
then condition of the country, keeping no clerk, and being as parties incom-
petent to take the stand, were totally bereft of any means of proof except
their own extrajudicial statements in these books {post, § 1537). The
guarantee of trustworthiness was that which we now recognize in the regu-
larity of the entries {post, § 1522). What is to be noticed, then, is that the
books were received practically on the footing of a special Hearsay exception.
By keeping in mind that the party was unavailable as a witness for himself,
and that there was thus a necessity for using his past, extrajudicial, i. e.
hearsay statements, — that in short the judicial attitude was the same to this
as to ordinary Hearsay exceptions, it is easy to follow out the rationalized
form which this branch of the exception took, — a form usually, but incor-
rectly, regarded as merely arbitrary.
(&) At that time {i. e. up to the earliest part of the 1800s) no other ex-
ception of the sort appears to have been recognized in the United States, —
that is, there was no using of regular entries except this limited use of a
party's shop-books.'^^ But a knowledge of the doctrine of Price v. Lord Tor-
rington (1703) seems to have been then brought about by the English deci-
' These statutes for the New England Colo- P. Daly, the learned historian of New York, in
nies, will be found quoted or cited in Thayer, his History of the Court of Common Pleas, in
ubi supra, 506, 515. To those citations add, for 1 E. D. Smith xxx; also in 4 id. 397. Possibly
North Carolina, St. 1756, and for South Caro- (on the lines suggested by Mr. Douglas Camp-
Una, St. 1721 {post, § 1519). These early stat- bell, in his Puritan in England, Holland, and
ntes are not here set out, because nothing turns America) the English usage of Elizabeth's time
upon their wording ; for either (as in New Eng- was itself learned from the Dutch merchants,
land) the statutes have fallen into desuetude ^^ The following belongs under the older
and the rulings of the Courts since the Revolu- tradition: 1792, Lewis v. Norton, 1 Wash. Va.
tion have become the source of the law, or (as 76 (entries in the appellee's " store-books, which
in North Carolina) a modern statute has super-
seded the early one.
'■" This is pointed out by Mr. Justice Charles
1881
were proved to be in the handwriting of one of the
appellee's bookkeepers, then dead,' admitted).
§ 1518 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LI
sions of Pritt v. Fairclough ^ and Hagedorn v. Reid,^^ rendered in 1812 and
1813; and shortly after this time two well-considered rulings, following
these authorities, established on a firm footing the large and general prin-
ciple of admitting regular entries by deceased persons, — the cases of Welsh
V. Barrett," in Massachusetts, in 1819, and Nicholls v. Webb,^^ in the Federal
Supreme Court, in 1823. In these two decisions the Exception found a
recognition entirely independent of the use of parties' books ; and it was only
in the course of time, especially through Professor Greenleaf's treatment in
his work on Evidence, that the two branches of the exception became asso-
ciated and their analogy recognized. When this relation came to be ap-
preciated, certain difficulties had to be solved; for example, one of the
questions presented to American Courts was whether the books of a deceased
or an absent party should be treated according to the parties'-books doctrine
or from the point of view of the broad and inclusive exception admitting
regular entries of deceased persons generally. Another and analogous ques-
tion was the place to be assigned to books kept by a deceased clerk of a
party. These questions concerning the delimitation of the two divisions
still trouble the waters of precedent.
By these stages the two parts of the Exception reached their present
development in England and in the United States. It will be seen that in
England there now exists (apart from statute) only the broad principle ad-
mitting regular entries of any sort by deceased persons generally; while
in the United States there have grown up two branches, — one, the same
general principle, the other, an analogous principle covering parties' account-
books only.
§ 1519. statutory Regulation. The main branch of the Exception — reg-
ular entries by persons deceased or the like — has seldom been intentionally
dealt v?ith in statutes. But the branch applicable to parties' books has been
in many jurisdictions the subject of legislation.^ In England this legislation
" 3 Camp. 305. c. 11, Bankers' Books Evidence Act, § 3 (en-
^' 3 Camp. 377. tries in a " banker's book" are to be prima facie
" -IS^Mass-JSO. evidence of "the matters, transactions, and
1° 8 Wheaton 326. There were one or two accounts therein recorded ") ; § 4 (provided the
earlier cases, such as Clarke v. Magruder, 2 H. book " was at the time of making the entry
& J. 77 (Md., 1807), and Sterrett u. Bull, 1 Binn. one of the ordinary books of the bank, and that
237 (Pa., 1808) ; but the former two were those the entry wa.s made in the usual and ordinary
chiefly esteemed by other Courts in establishing course of business, and that the book is in the
the doctrine. custody of the bank ") ; Canada ; Dom. St. 1900,
1 The statutes for hooks of a corporation are c. 46, adding § 701 a to Crim. Code 1892 (in
noted ante, § 1074; England: 1883, Rules of proving the age of a young person, on certain
Court, Ord. XXX, enacted 1894, Rule 7 (" On charges, " any entry or record by an incorporated
the hearing of the summons, the Court or judge society or its officers having had the control or
may order that evidence of any particular fact, care " of the person about the time of his being
to be specified in the order, shall be given . . . brought to Canada, is admissible, if made before
by production of documents or entries in books, the offence committed); B. C. St. 1902, c. 22,
or by copies of documents or entries or other- § 5 (in actions in a county court for a demand
wise as the Court or judge may direct ") ; Ord. not for tort and not exceeding S250, the judge
XXXIII, Rule 7 ("The Court or judge," in " on being satisfied of their general correctness"
directing an account, " may direct that in taking may receive in evidence " the books of the
the account, the books of account in which the plaintiff," or for a payment or setoff or counter-
accounts in question have been kept shall be claim, those of the defendant) ; Man. Rev. St.
taken as prima facie evidence of the truth of the 1902, c. 38, § 135 (in any action " for a debt or
matters therein contained ") ; 1 879, St. 42 Vict, demand, not being for tort, the judge, on being
1882
§§ 1517-1561]
EEGULAE ENTEIES.
§ 1519
has merely restored, in broad and indefinite language, something of the usage
which for two centuries had ceased to be a part of the cpmraon law. In the
satisfied of their general correctness, may receive
in evidence the books of the plaintiff," or, for a
set-off or counter-claim or payment, the books
of the defendant) ; A^. Br. Consol. St. 1877, c. 49,
§ 91 (on a reference, "the books or writings of
either party, or of any person or party repre-
sented by him or under whom he claims, may
also be used in evidence for or against the party
producing them ") ; St. 1895, c. 16 (on an issue
as to the estate of a deceased person, " entries
in the books of accounts of such deceased persons
shall on proof of their being in the handwriting
of the deceased or of a clerk who is deceased "
be admissible and be prima facie proof, if the
Court is satisfied " that they were made in the
ordinary course of business ") ; Newf. Consol. St.
1892, c. 50, Rules of Court 30, par. 3 (parties'
books of account, admissible in certain cases) ;
St. 1897, c. 21 (entries in bankers' books made
admissible, on certain conditions) ; N. Sc. Kules
of Court, 1900, Ord. 32, R. 3 (in directing an
account, the judge may direct that " the books
of account in which the accounts in question
have been kept shall be taken as prima facie
evidence," with liberty to object) ; Ont. Rev. St.
1897,0. 60, § 148 ("in an action for a debt or
demand, not being for tort and being under
$25 " ; the judge may admit the plaintiff's
books, and also, for a set-off or pavment, the
defendant's book.s) ; P. E. I. St. 1889, § 52
( " Proof of the handwriting of any clerk, shop-
man, or servant, or other person, of any entry
in any original book of entry, and made in
the ordinary course of business, stating the
delivery of goods, the payment of money, or the
performance of labor," shall be evidence thereof,
" in the absence from this Province of such
clerk," etc., as if he were dead) ; United
States: Ala. Code 1897, § 1808 ("Tlie original
entries in the books of a physician are evidence
for him in all actions brought for the recovery
of his medical services, that the services were
rendered, unless the defendant in open court
deny on oath the truth of such entries, but the
physician is required to prove the value of such
services " ; a denial by the opponent's representa-
tive may be on belief only) ; § 1809 (" Books of
account kept by a deceased executor, admin-
istrator, guardian, or trustee, or entries or
memoranda made by him in the course of
business or duty, are admissible evidence ; and if
such book or memoranda be lost, a copy thereof,
supported by the oath of the person making it,
is admissible evidence"); Ark. Stats. 1894,
§ 2893 ("The regular and fairly kept books of
original entries of a deceased merchant or reg-
ular trader, or any person keeping running
accounts for goods, wares, merchandise, or other
property sold or labor done, accompanied by the
affidavit of the executor or administrator of
such deceased person, or some creditable person
for him, setting forth that they are the books
or accounts of his testator or intestate, shall be
evidence to charge the defendant for the sum
therein specified, subject to be repelled by other
competent testimony ") ; § 2894 (" To entitle
-56
the party to introduce such evidence, he must
first establish, to the satisfaction of the Court,
that the testator or his inte-state had the rep-
utation of keeping correct books"); § 2895
(statute not to apply to " hawkers or peddlers ") ;
Cal. C. C. P. 1872, § 1946 ("The entries and
other writings of a decedent, made at or near
the time of the transaction and in a position to
know the facts stated therein, may be read as
prima facie evidence of the facts stated therein,
... 2, when it [the entry] was made in a
professional capacity, and in the ordinary course
of professional conduct ; 3, when it was made
in the performance of a duty specially enjoined
by law ; amended by the Commissioners in
1901, by inserting in clause 3, after "law," the
words "contract or employment"; for the
validity of this amendment, see ante, § 488) ;
§ 1947 (" When an entry is repeated in the
regular course of business, one being copied
from another at or near the time of the transac-
tion, all the entries are equally regarded as
originals"; amended by the Commissioners iu
1901, by inserting at the beginning : " Entries
in original books of account or otlier business
records, made in the regular and ordinary course
of business, and at or near the time of the
transaction, may be read as prima facie evidence
of the facts stated therein, though the person
making such entries is not deceased, if it appears
that they were made as provided in this section
and that they were intended to be correct " ;
for the validity of this amendment,- see ante,
§ 488) ; Colo. Annot. Stats. 1891, § 4817 (when
in any civil action " the claim or defense is
founded on a book account, any party or in-
terested person may testify to his account-book
and the items therein contained ; that the same
is a book of original entries, and that the entries
therein were made by himself and are true and
just, or that the same were made by a deceased
person, or by a disinterested person, a non-
resident of the State at the time of the trial,
and were made by such deceased or non-resident
person in the usual course of trade, and of his
duty or employment to the party so testify-
ing"); Del. Rev. St. 1893, c. 107, § 11 (a" book
of original entries, regularly and fairly kept,"
offered with plaintiff's oath or affirmation, is
admissible to charge the defendant " with the
sums therein contained for goods sold and de-
livered, and other matters properly chargeable
in an account," or is admissible, with defendant'."!
oath or affirmation, to establish a set-off ; " cash
items are not properly so chargeable " ; " pro-
vided that the party proving his book of original
entries shall be subject to cross-examination
touching the same and the entries therein and
the transactions to which such entries relate ") ;
Fla. Rev. St. 1892, § 1120 ("In all suits the
shop-books and books of account of either party,
in which the charges and entries shall have been
originally made, snail be admissible in evidence
in favor of such party," the jury to judge of
credibility) ; Ga. Code 1895, § 5182 (" The books
of account of any merchant, shopkeeper, physi-
1883
§ 1519
EXCEPTIOlSrS TO THE HEAESAY RULE.
[Chap. LI
New England States, the original colonial statutes fell into desuetude, and
the practice was perpetuated by judicial rulings. But in some of the South-
ciau, blacksmith, or other person doing a reg-
ular business and keeping daily entries thereof,
may be admitted in evidence as proof of such
accounts, upon the following conditions : 1. That
he kept no clerk, or else the clerk is dead or
otherwise inaccessible, or for any other reason
the clerk is disqualified from testifying ; 2.
Upon proof (the party's oath being sufficient)
that the book tendered is his book of original
entries ; 3. Upon proof ( by his customers) that
he usually kept correct bucks ; 4. Upon in-
spection by the Court, to see if the books are
free from any suspicion of fraud"); Ida. Rev.
St. 1887, § 5996 {like Cal. C. C. P. § 1946);
III. Rev St. 1874, c. 51, § 3 (" Where in any
civil action, suit, or proceeding, the claim or
defense is founded on a book account, any party
or interested person may testify to his account-
book, and the items therein contained ; that the
same is a book of original entries, and that the
entries therein were made by himself, and are
true and just ; or that the same were made by
a deceased person, or by a disinterested person,
a non-resident of the State at the time of the
trial, and were made by such deceased or dis-
interested person in the usual course of trade,
and of his duty or employment to the party so
testifying ; and thereupon the said account-book
and entries shall be admitted as evidence in the
cause ") ; 1872, Presbyterian Church v. Emerson,
66 111. 269, 271 (" This section is a repeal of
the common-law rule as to the admissibility of
an account-book"); 1892, House v. Beak, 141
id. 290, 297, 30 N. E. 1065 ("Section 3, which
was first passed in 1867 (Laws of 1867, § 3,
p. 184), adds to and enlarges, but does not
repeal the common law ; a contrary statement
made in Presbyterian Church v. Emerson, 66
111. 269, was mere dictum, and not necessary to
the decision of the case ") ; la. Code 1897,
§4622 (like Cal. C. C. P. § 1946, with "or"
instead of " and," in the second class of cases) ;
§ 4623 (" Books of account, containing charges
by one party against the other, made in
the ordinary course of business, are receivable
in evidence only under the following circum-
stances . . . First, the books must show a con-
tinuous dealing with persons generally, or
several items of charges at diSerent times
against the other party in the same book or set of
books ; Second, it must be shown, by the party's
oatli or otherwise, that they are his books of
original entries ; 'Third, it must be shown in
like manner that the charges were made at or
near the time of the transaction therein entered,
unless satisfactory reasons appear for not mak-
ing such proof ; l?ourth, the charges must also
be verified by the party or the clerk who made
the entries, to the effect that they believe them
just and true, or a sufficient reason must be
given why the verification is not made") ; Kan.
Gen. St. 1897, c. 95, §378 ("Eutries in books
of account may be admitted in evidence when it
is made to appear by the oath of the person
who made the entries that such entries are
correct, and were made at or near the time of
the transaction to which they relate, or upon
proof of the handwriting of the person who
made the entries in case of his death or absence
from the county") ; Ky. C. C. P. 1895, § 606,
par. 7 (quoted ante, § 488) ; La. Rev. Civ. C. 1888,
§ 2248 (" The books of merchants cannot be
given in evidence in their favor ") ; Mich. Comp.
L. 1897, § 10192 ("In all trials . . . books of
account, containing charges or entries for money
paid, laid out, or furnished, shall be received
and admitted as evidence, and deemed to be
evidence of such charges and entries, and that
such moneys were so paid, laid out, furnished,
or lent, as is in such books charged or entered,
and of the liability of the person charged there-
for, in the same manner and to the same extent
as books of account containing charges for
goods, wares, or merchandise sold and delivered,
are received and admitted as evidence of sale
and delivery of such goods and merchandise,
and of the liability of the person charged
therefor ; provided, this section shall not apply
to cases where persons acting or having acted
as commission merchants or agents for the sale
of produce, grain, or other property, unless
accompanied by a voucher or receipt for the
money so claimed to be laid out, lent, or fur-
nished ") ; Minn. Gen. St. 1894, § 5738 (party's
account-books admissible, when he produces
them " and proves that tiie said books are his
books of account kept for that purpose; that
they contain the original entries of charges for
moneys paid, or goods or other articles de-
livered, or work and labor or other services per-
formed, or materials furnished ; that the charges
therein were made at the time of the transac-
tions therein entered; that they were in the
handwriting of some person authorized to make
charges in said books, and are just and true as
the person making such proof verily believes;
the witness by whom said books are sought to
be proved beiug subject to all the rules of cross-
examination, and said books subject to all just
exceptions as to their credibility ") ; § 5739
(" Where a book has marks which show that
the items have been transferred to a ledger, the
book shall not be testimony unless the ledger is
produced ") ; § 5740 (" Any entries made in a
book by a person authorized to make the same,
he being dead, may be received as evidence, in
a case proper for the admission of such book
as evidence, on proof that the same are in his
handwriting, and in a book kept for such entries,
without further verification " ) ; § 5741 (where a
deposition is used, production of such books to
the officer suffices, and copies of entries may be
attached); Mo. Rev. St. 1899, § 4652 (quoted
ante, § 488) ; Mont. C. C. P. 1895, §8 3237, 3238
(like Cal. C. C. P. §§ 1946, 1947) ; Nebr. Comp.
St. 1899, § 5919 (substantially like Cal. C. C. V.
§ 1946, substituting "or" for "and" in the
second class, and " presumptive " for " prima
facie ") ; § 5920 (like la. Code, § 4623, with " or
set of books " omitted at the end of the first
proviso) ; A'^. M. Comp. L. 1897, § 3031 (in civil
causes, " the books of account of any merchant.
1884
1517-1561]
KEGULAR ENTEIES.
§ 1519
ern States new statutes from time to time re-stated the terms of the rule ;
and in the legislation of many Western States this part of the exception
shopkeeper, physician, blacksmith, or other per-
son doing a regular business and keeping daily
entries thereof, may be admitted as proof of
such accounts upon the following conditions :
First, tliat he kept no clerk, or else the clerk is
dead or inaccessible ; Second, upon proof, the
party's oath being sufiScient, that the book ten-
dered is the book of original entries; Third,
upon proof, by his customers, that he usually
kept correct books ; Fourth, upon inspection by
the Court to see if the books are free from any
suspicion of fraud ") ; 1898, Byerts v. Robinson,
9 N. M. 427, 54 Pac. 932 (the "foregoing statute
supersedes the common law) ; N. C. Code 1883,
§ 591; St. 1756, c. 57 (in claims "for goods,
wares, and merchandise by him sold and de-
livered or for work done and performed;" on
the claimant's oath that the matter is a book
account and " that he hath no means to prove
the delivery of any of the articles which he then
shall propose to prove by himself but by this
book," and that " it doth contain a true account
of all the dealings or the last settlement of
accounts" and that "all the articles therein
contained and by him so proved were bonajide
delivered, and that he hath given the opposing
party all just credits," the book and oath are
admissible for articles delivered within two years
before action begun, but not " for any greater
amount than sixty dollars"); § 592 (similar
provisions for an executor, etc., using deceased's
book, on oath that " there are no witnesses to
his knowledge capable of proving," etc. ; the
matters to be within three years before suit
begun and two years before the death of the
deceased) ; § 593 (a copy of an account may be
used instead of the original, unless the opponent
has given ten days' notice to produce) ; Oh.
Annot. Rev. St. 1898, § 5242, par. 6 (quoted
ante, § 488) ; Okl. Stats. 1893, § 4277 ("Entries
in books of accounts may be admitted in evi-
dence, when it is made to appear by the oath
of the person who made the entries that such
entries are correct, and were made at or near
the time of the transaction to which they relate,
or upon proof of the handwriting of the person
who made the entries, in case of his death or
absence from the county"); Or. C. C. P. 1892,
§ 767 (like Cal. C. C. P. § 1946, inserting, after
" deceased," " or without the State," and after
" writings," " of a like character ") ; § 768 (like
Cal. C. C. P. § 1947) ; Pa. St. 1883, June 22,
P. & L. Dig. "Evidence," 39, 40, § 1 ("book
entries of any bank or banker doing business at
the time " of the evidence required are provable
by copy) ; § 2 (in admitting this copy, "there
must be an affidavit or the testimony of an
officer of the bank stating that the book is one
of the ordinary books of the bank used in the
transaction of its business, that the entry is as
was originally made at the time of its date, and
in the usual course of its business, that there
are no interlineations or erasures, and that the
copy has been compared with the book, and is
a correct copy of the same, and such book shall
be open to the inspection of any interested
party ") ; § 3 (this statute shall not apply to
"any suit to which the bank or bankers is a
party"); St. 1897, May 25, Pub. L. 82, § 1
("Hereaffer in any suit or action brought in
any Court within this commonwealth in which
the accounts kept by any common carrier, rail-
road company, chartered storage or transportar
tion company, or other public corporation doing
business within this commonwealth are involved
in an issue between other parties, and in the
result of which such common carrier, railroad
company, chartered storage or transportation
company, or other public corporation, has no
direct or pecuniary interest, a copy of the books
of account of original entry of such common
carrier, railroad company, chartered storage or
transportation company, or other public corpora-
tion, under the oath or affirmation of an officer
or employee in charge of the books of such com-
mon carrier, railroad company, chartered stor-
age or transportation company, or other public
corporation, filed within ten days of the date
of the trial or hearing of the issue in said suit
or action, shall be and become prima facie evi-
dence") ; S. C. St. 1721, Gen. St. 1882, § 2228,
Code 1902, § 2900 ("Books of original entry
kept by farmers and planters relating to the
transactions of their farms or plantations shall
be receivable in evidence in all trials in which
the business or transactions of their farms or
plantations shall be called in question, as between
the farmer or planter and his employees, in the
same manner as books of merchants and shop-
keepers are"); St. 1827, G. S. § 2229, Code
1902, § 2901 (" The books of accounts of tavern-
keepers, shopkeepers, or retailers of spirituous
liquors shall not be admitted, allowed, or re-
ceived as evidence, in any court having a right
to try the same, of any debt contracted, or
moneys due, for spirituous liquors sold in less
quantity than aquart ") ; Tenn. Code 1896, § 5562
(in actions for goods sold and delivered or for
work and labor, the plaintiif's books of account
are to be admissible to prove sale and delivery
of " articles not exceeding seventy-five dollars
in value, which were delivered within two years
before the action brought, if the plaintiff make
oath (1) that the matter in dispute is a book
account, (2) that he has no means to prove the
delivery of such articles as he shall then pro-
pose to prove by his own oath, but by his book,
(3) that the book contains a true account of all
the dealings or last settlement of account
between them, (4) that all the articles therein
contained and by him so proved were really
delivered, and (5) that he has given the defend-
ant all just credits") ; § 5563 (a deceased
creditor's representative may use the book on
swearing (1) that he believes the account just,
(2) that there are no witnesses who can prove
it, (3) that he " found the book with the account
so stated," and (4) that he " knows of no farther
or other credit to be given ") ; § 5564 (a copy
may be used unless the defendant has given no-
tice, at the time of issue joined, to produce the
hook) ; § 5565 (if both parties are deceased per-
1885
§ 1519
EXCEPTIONS TO THE HEARSAY RULE.
[Chap. LI
was also embodied in statutes. The history of this Western legislation is
obscure ; but it seems to have come about in general by way of imitation or
adaptation of the Southern statutes familiar to many of the early emigrants.
Much of it preceded the abolition of parties' disqualification {ante, § 577), and
was intended to alleviate that rule. The Western legislation, however, was
often broader in language than the Southern statutes, which usually did not
do much more than perpetuate the original colonial practice with its narrow
limitations. Moreover, at the time of the Western enactments, the main
branch (or general exception for deceased persons' entries) was already fully
recognized by the Courts ; so that the language of these statutes often shows
traces of this main exception, and in some respects serves to admit evidence
which would ordinarily have been already available under the judicial ex-
ception. It is therefore sometimes difficult to know whether the statute is
to be .regarded as merely declaratory of the common law in those respects, or
whether it must be taken as a substitute replacing and excluding the com-
mon-law principle. Having regard to the history of the parties'-books ex-
sons' representatives, the deceased opponent's
book may be admitted to disprore charges) ;
Utah Rev. St. 1898, § 3406 (like Cal. C. C. P.
§ 1946) ; Vt. Stats. 1894, §§ 1237, 1239 (quoted
ante, § 488) ; Wis. Stats. 1898, § 4186 (" When-
ever a party in any cause or proceeding shall
produce at the trial his account-books and swear
that the same are his account-books, kept for
that purpose ; that they contain the original
entries of charges for goods or other articles
delivered, or work or labor or other services
performed or materials found, and that such
entries are just, to the best of his knowledge
and belief; that said entries are in his own
handwriting, and that they were made at or
about the time said goods or other articles were
deUvered, said work and labor or other services
were performed, or said materials were found,
the party offering such book or books as evi-
dence, being subject to all the rules of cross-
examination by the adverse party tliat would
be applicable by the rules to any other witness
giving testimony relating to said book or hooka,
if it shall appear upon the examination of said
party that all of the interrogatories in this
section contained are satisfactorily established
in the affirmative, then the said book or books
shall be received"); § 4187 ("Whenever the
original entries mentioned in the preceding
section are in the handwriting of an agent,
servant, or clerk of the party, the oath of such
agent, servant, or clerk may in like manner be
admitted to verify the same, and said books
shall be testimony" as in § 4186; provided
that under neither section shall a book " be
admitted as testimony of any item of money
delivered at one time exceeding five dollars, or
of money paid to third persons, or of charges
for rent ") ; § 4188 (a book with marks showing
a posting in a ledger is inadmi.'isible " unless the
ledger be produced"); § 4189 ("Any entries
made in a book by a person authorized to make
the same, he being dead,, may be received as
evidence in a case proper for the admission of
such books as evidence. Entries in a book or
other permanent form, other than those men-
tioned in §§ 4186 and 4189 b, in the usual course
of business, contemporaneous with the transac-
tions to which they relate and as part of or
connected with such transactions, made by
persons authorized to make the same, may be
received in evidence when shown to have been
so made upon the testimony either of the person
who made the same, or if he be beyond the
reach of a subpoena of the trial Court or insane,
of any person having custody of the entries and
testifying that the same were made by a person
or persons authorized to make them in whose
handwriting they are, and that they are true
and correct to the best of his knowledge and
belief. In case such entries are, in the usual
course of business, also made in other books or
papers as a part of the system of keeping a rec-
ord of such transactions, it shall not be neces-
sary to produce as witnesses all of the persons
subject to subpoena who were engaged in the
making of such entries ; but before such entries
are admitted, the Court shall be satisfied that
they are genuine " and fulfil the above rules) ;
§ 41896 ("Whenever any evidence shall be
required . . . from the books of any bank or
banker doing business at the time," copies of
entries are admissible, with a bank officer's
affidavit or testimony that the book is " one of
the ordinary books of the bank used in the
transaction of its business," that the entry " was
originally made therein at the time of its date
and in the nsual course of the business of the
bank, that there are no interlineations or eras-
ures, that the book is in the custody or control
of the bank ") ; § 3932 (after the decease of
an executor or administrator, his books of
account " as such executor or administrator,
appearing to have been kept in his own hand-
writing," are admissible to prove receipts, dis-
bursements, and services) ; Wiio. Eev. St. 1887,
§ 2590, par. 6 (quoted ante, § 488).
1886
§§ 1517-1561] EEGULAK ENTEIES. § 1521
ception, it seems safer and more correct, as it certainly is more advantageous,
to regard these statutes as intended to enlarge or to replace merely the
parties'-books branch of the exception; so that whatever principle there
was at common law for the main exception (for regular entries by deceased
persons in general) remains unabolished by these statutes. Their clauses,
therefore, which deal with such entries of persons deceased or absent, are
merely declaratory and cumulative, and the remaining limitations or ele-
ments of the main exception at common law, unmentioned in the statute,
remain in force as at common law. The result of these statutes, as affecting
in general the existence of either of the branches of the Exception, is later
dealt with (^post, § 1561).
The statutes in their details may affect any of the topics of the ensuing
sections, particularly in the branch dealing with parties' books. Though
they have been collected here at the outset, the common-law limitations
examined in the following sections must be understood to be subject to the
local control of these statutes.
A. Eegulae Entries in General.
1. The Necessity Principle.
§ 1521. Death, Absence, etc., of the Entrant. On the principle of necessity
{ante, § 1421), this Exception sanctions the use of statements by persons
whose testimony, though not necessarily the sole evidence available on the
subject, is yet the only testimony now available from that person. Hence
the usual rule applies that the person must he unavailable as a witness :
1750, Hardwicke, L. C, in Lefebure v. Warden, 2 Ves. Sr. 54 : " On proof that the de-
clarant was dead, such entry has been read ; ... by reason of the difficulty of nnaking of
proof in cases of this kind, the Court has gone so far."
1819, Parker, C. J., in Welsh v. Barrett, 15 Mass. 380 : " The question was thought to
fall within the general rule which requires the best evidence the nature of the case admits
of. . . . It is analogous to the exceptions to other general rules of evidence,"
1823, Story, J., in Nicholh v. Webb, 8 Wheat. 326 : " It is the best evidence the nature
of the case admits of. If the party is dead, we cannot have his personal examination
upon oath, and the question then arises, whether there shall be a total failure of justice,
or secondary evidence shall be admitted to prove facts where ordinary prudence cannot
guard us against the effects of human mortality.''
As is frequent in these Hearsay exceptions, the principle of unavailability has
not been fully and consistently carried out. Certain specific situations have
from time to time been ruled upon as sufficient or insufficient.
(1) It is of course at least necessary that the witness should be somehow
unavailable. Where the absence of the desired witness is not somehow
accounted for (except when a party, under the other branch of the rule), the
entries cannot be used.^
^ To the following, add the cases infra, notes by a constmctor not accounted for, excluded) ;
2-6 ; 1891, Terry v Birmingham N. Bank, 93 1874, Bartholomew v. Farwell, 41 Conn. 109
Ala. 608, 9 So. 299 (stock-exchange books ex- (requiring the entrant to be produced or shown
eluded); 1896, Tennessee & C. R. Co. u. Dan- to be unavailable ; on this point overrules Butler
forth, 112 id. 80, 20 So. 502 (estimates ot cost v. Iron Co., 1853, 22 Conn. 360, an anomalous
1887
§ 1521
EXCEPTIONS TO THE HEARSAY RULK
[Chap. LI
(2) Of the various facts sufficiently excusing from production, death, as in
other Hearsay exceptions, is the common and universally conceded instance.^
Insanity should be equally sufficient.^ Illness effectively preventing the
attendance of. the witness should suffice.* Absence from the jurisdiction
should admit the statements, and this is generally conceded ; ^ the offeror might
in a particular case be required to show the witness' unwillingness to return
and testify, or perhaps the inability to obtain a deposition ; but this require-
ment is not sanctioned. The other cases of unavailability may no doubt be
presented ; to all of them applies the broad language of Chief Justice Shaw : ®
" The ground is the impossibility of obtaining the testimony, and the cause of
such impossibility seems immaterial." In some of the statutes (quoted ante,
§ 1519), other grounds of unavailability are expressly named ; occasionally the
broad principle is laid down that the statements are usable " if sufficient
reason is given " for the entrant's non-production.'^
The practical impossibility, on grounds of mercantile inconvenience, of pro-
ruling) ; 1862, Barnes v. Simmons, 27 111. 512 ;
1901, State Bank of Pike v. Brown, 165 N. T.
216, 59 N. E. 1 (bank-books excluded, the makers
not being accounted for) ; 1899, Baird v. BeiUy,
35 C. C. A. 78, 63 U. S. App 157, 92 Fed. 884
(hospital record by person not called, excluded).
1'he following case should have been placed on
this ground : 1884, Watrous v. Cunningham, 65
Cal. 410, 4 Pac. 408 (here the books of account
of one L. S., called as a witness, were rejected,
but on the absurd ground that " the entries in
this book did not bind defendants " ; no authority
cited).
If the entrant is present in court, he should
use the entries to assist his recollection {post,
§§ 1530, 15601.
2 Ala. : 1895, Sands v. Hammel, 108 Ala. 624,
18 So. 489; Conn.: 1842, Livingston v. Tyler,
14 Conn. 498 ; 1852, Stiles v. Homer, 21 id. 511 ;
1857, Ashmead v. Colby, 26 id. 310; 1874,
Bartholomew v. FarweU, 41 id 109 ; JUd. : 1807,
Clarke v. Magruder, 2 H. & J. 77 ; Mass.: 1838,
Wa.shington Bank v. Prescott, 20 Pick. 342 ;
N. M.: 1885, Price v. Garland, 3 N. M. 289, 6
Pac. 472 ; N. Y. : 1 843, Sheldon v. Benham, 4
Hill 131 ; 1865, Leland v. Cameron, 31 N. Y.
121 ; 1876, Fisher w. JVIavor, 67 id. 77; Pa.:
1808, Sterrett u. Bull, 1 Binu. 237; 1821, Pat-
ton's Adm'rs v. Ash, 7 S. & R. 125.
' 1886, Bridgewater v. Roxbury, 54 Conn.
217, 6 Atl. 415 (books of a physician, who " had
become mentally incompetent to testify," admit-
ted ; " it is the same as if he were dead) "; 1825,
Union Bank v. Knapp, 3 Pick. 109.
* In Taylor v. R. Co., 80 la. 435, 46 N. W.
64 (1890), where it was a railroad-employee's
duty to make an entry of certain things and the
entrant was kept away by illness, the entries
were rejected ; but the opinion does not indicate
an apprehension of the real points involved.
5 1833, North Bank v. Abbot, 13 Pick. 471;
Shaw, C. J. : " It was satisfactorily proved, not
merely that the witness was out of the jurisdic-
tion of the Court, but that it had become im-
possible to procure his testimouy. We cannot
distinguish this, in principle, from the case of
death or alienation of mind. The ground is the
impossibility of obtaining the testimony, and the
cause of such impossibility seems immaterial."
Accord: 1837, Moore v. Andrews, o Port. 108
(permanent absence) ; 1884, Elliott v. Dyeke, 78
Ala. 157; 1890, McDonald v. Carnes, 90 id.
147, 7 So. 919 (" indefinite absence from the
State" suffices); 1893, St. Louis, I. M. & S. R.
Co. y. Henderson, 57 Ark. 402, 21 S. W. 878
(absence from jurisdiction, sufficient ; but here
no effort had been made to find him, and the
entries were excluded); Cal. C. C. P. 1872, as
amended 1901, § 1947 (regular entries made ad-
missible, " though the person making such en-
tries is not deceased " ; see the quotation ante,
§ 1519) ; 1874, Bartholomew v. Farwell, 41 Conn.
109; 1889, Culver v. Marks, 122 Ind. 565, 23
N. E. 1036 ; 1871, Karr «. Stivers, 34 la. 125 ; 1877,
Poor V. Robinson, 13 Bnsh 290, 294 (" died or
absconded" suffices); 1902, Cameron Lumber
Co. V. SomerviUe, 129 Mich. 552, 89 N. W. 346 ;
1808, Sterrett v. Bull, 1 Binn. 237 ; 1823, Elms
V. Cheirs, 2 McC. 349 ; 1896, Rigbv v. Logan, 45
S. C. 651, 24 S. E. 56 ; 1865, "Fennerstein's
Champagne, 3 Wall. 149, scmfife; 1883, Vinalw.
Green, 21 W. Va. 313 (temporary absence does
not suffice) . Contra : 1 793, Cooper v. Marsden,
1 Esp. 1 ; 1849, Browninjr v. Flanagin, 22 N. J.
L. 567, 572 ; 1826, Wilbur .-. Selden, 6 Cow.
163 ; 1902, McKeen v. Bank, — R. I. — , 54
Atl. 49 (account-books of a third person out of
the State, excluded ; bnt the Court proceeds also
on the ground that the entries must be against
interest ; this radical misconception of the whole
principle of this Exception is scarcely palliated
by the circumstance that it rests on a further
misunderstanding of Mr. Greenleaf's original
language on this point) ; 1894, Little Rock Gran-
ite Co. V. Dallas Co., 13 C. C. A. 620, 66 Fed. 522,
semhle.
' Quoted in note 5, supra.
' Applied in Volker v. Bank, 26 Nebr. 605, 42
N. W. 732,
1888
§§ 1517-1561] EEGULAE EKTRIES. § 1522
ducing all the clerks, salesmen, teamsters, or the like, who have contributed
their knowledge in making up the items of voluminous accounts is by some
Courts recognized as a sufficient ground for non-production ; but this ground
can better be examined in considering the use of entries resting on the com-
bined knowledge of two or more persons {post, § 1530). The policy of these
rulings, so far as it exempts from the production of all but one verifying
person, on the ground of mercantile convenience, is deserving of commpn
adoption. The general principle should recognize practical inconvenience as
an excuse, subject to the judge's discretion to require the entrant's production
for cross-examination where the nature of the dispute renders it desirable.
2. The Circumstantial Guarantee of Trustworthiness.
§ 1522. Reasons of the Principle. The reasons justifying the admission of
this class of statements, untested as they are by cross-examination, have not
been as clearly defined by the judges as in other Hearsay exceptions ; but
they seem fairly clear. They fall within the second general type already
described {ante, § 1422), i. e. the situation is one where, even though a desire
to state falsely may casually have subsisted, more powerful motives to ac-
curacy overpower and supplant it. In the typical case of entries made syste-
matically and habitually for the recording of a course of business dealings,
experience of human nature indicates three distinct though related motives
which operate to secure in the long run a sufficient degree of probable trust-
worthiness and make the statements fairly trustworthy :
(1) The habit and system of making such a record with regularity calls for
accuracy through the interest and purpose of the entrant ; and the influence
of habit may be relied on, by very inertia, to prevent casual inaccuracies and
to counteract the casual temptation to mis-statements. This reason has been
referred to in the following passage :
1835, Tindal, C. J., in Poole v. Dicas, 1 Bing. N. C. 649: "It is easier to state what
is true than what is false ; the process of invention implies trouble, in such a case un-
necessarily incurred."
(2) Since the entries record a regular course of business transactions, an
error or mis-statement is almost certain to be detected and the result dis-
puted by those dealing with the entrant; mis-statements cannot safely be
made, if at all, except by a systematic and comprehensive plan of falsifica-
tion. As a rule, this fact (if no motive of honesty obtained) would deter all
but the most daring and unscrupulous from attempting the task ; the ordi-
nary man may be assumed to decline to undertake it. In the long run it
operates with fair effect to secure accuracy.
(3) If, in addition to this, the entrant makes the record under a duty to an
employer or other superior, there is the additional risk of censure and dis-
grace from the superior, in case of inaccuracies, — a motive on the whole
the most powerful and most palpable of the three. This reason has been
more than once mentioned :
1889
§ 1522 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LI
1835, Tindal, C. J., in Poole v. Dicas, 1 Bing. N. C. 649 : " The clerk had no interest to
make a false entry ; if he had any interest, it was rather to make a true entry ; . . . a false
entry would be likely to bring him into disgrace with his employer. Again, the book in
which the entry was made was open to all the clerks in the office, so that an entry if false
would be exposed to speedy discovery."
1819, Parker, C. J., in Welsh v. Barrett, 15 Mass. 380 : " What a man has said when
not under oath may not in general be given in evidence when he is dead. . . . 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 has undertaken, and. he being dead, there seems
to be no danger in submitting to the consideration of the jury."
1865, Suoayne, J., in Fennerstein's Champagne, 3 Wall. 149: "The rule rests upon the
consideration that the entry, other writing, or parol declaration of the author, was within
his ordinary business. ... In all [the cases] he has full knowledge, no motive to false-
hood, and there is the strongest improbability of untruth. Safer sanctions rarely sur-
round the testimony of a witness examined under oath."
This last motive was most highly thought of in the earlier stages of the
exception's history, and in England it has come to be regarded as in-
dispensable.
From these general motives and reasons, forming the policy on which the
principle rests, are developed certain specific requirements and limitations.
§ 1523. Regular Course of Business ; (1) Business or Occupation. The first
general requirement is that the entry must have been made in the regular
course of business. The judicial phrasings of this requirement vary in terms.^
The entry must have been, therefore, in the way of business. This may
be defined to mean a course of transactions performed in one's habitual rela-
tions with others and as a natural part of one's mode of obtaining a livelihood.
It would probably exclude, for instance, a diary of doings kept merely for
one's personal satisfaction ; but it would not exclude any regular record that
was helpful, though not essential nor usual in the same occupation as followed
by others.^ There is, therefore, no special limitation as to the nature of the
occupation? Since it is thus not essential that the occupation should be a
1 1832, Doe v. Turford, 3 B. & Ad. 890 occupation"); 1875, State v. Phair, 48 Vt. 378
(Parke, J., and Taunton, J. : "in the ordinary (Royce, J., "made by him in the regular course
course of bu.siuess"); 1835, Poole v. Dicas, 1 of business and it was his business to make
Bing. N. C. 649 (Tindal, C. J., "made in the them").
usual course and routine of business"); 1860, ' 1876, Fisher ». Mayor, 67 N. Y. 77 (An-
Rawlins v. Rickarda, 28 Bear. 373 (Romilly, drews, J. : "It is sufiBcient if the entry was the
M. R , admitting a solicitor's books ; " in the natural concomitant of the transaction to which
exercise of his business and duty, . . . and in it relates, and usually accompanies it"),
the regular course of his business"); 1823, ^ The following have been admitted: 1816,
Nicholls V. Webb, 8 Wheat. 326 (Story, J., of a Champneys v. Peck, 1 Stark. 326 (memorandum
notary's book of protests : "... an employment of delivery of copy of a bill by a clerk who usu-
in which he was usually engaged ; • . . memo- ally made such a memorandum upon the copy
randums in the ordinary discharge of tlieir duty kept) ; 1835, R. v. Cope, 7 C. & P. 726 (indorse-
and employment ; . . memorandums, made by ment of service on an order of the aldermen, the
a person in the ordinary course of his business, writer's duty being to serve orders and indorse
of acts which his duty in such business requires them when served) ; 1886, Bridgewater v. Rox-
him to do for others ") ; 1 844, Watts u. Howard, bury, 54 Conn. 217, 6 Atl. 415 (physician's
7 Mete. 481 (Shaw, C. J.: "in the usual and entries of services rendered); 1853, Sasscar v.
ordinary course of their business, in relation to Farmers' Bank, 4 Md. 418 (notary's entries) ;
acts coming within the scope of their authority 1858, Perkins v. Augusta Co., 10 Gray, 324 (cer-
and duty"); 1848, Dow v. Sawyer, 29 Me. 119 tificate of a marine inspector as to a vessel's con-
(" as he had occasion to make them in the course dition) ; 1875, De Armond v. Neasmith, 32 Mich,
of his business"); 1865, Kennedy t). Doyle, 10 233 (weather-record at an insane asylum) ; 1894,
All. 161 ("in the ordinary course of his business Hart v. Walker, 100 Mich. 40f, 410, 59 N. W.
_ 1890
1517-1561]
REGULAR ENTRIES.
§ 1525
mercantile or industrial one, nor even that it should be a secular one, it fol-
lows that a register of marriages or the like, kept by a priest or minister, is
admissible* The admission of a non-official marriage-register, however, is
not recognized in England, partly because of another principle (post, § 1524),
nor in some of the American courts ; and such books are therefore admissible
in those courts so far only as they are made under a legal duty, i. e. on the
principle of Official Statements.^ A ship's log-hook is admissible under the
present exception ; but as it is in some jurisdictions required by statute to be
kept, it is thus also admissible as an Official Statement.*
§ 1524. Same : English Rule ; Duty to a Third Person. The further limi-
tation exists in England and Canada that there should have been a duty to
a third person, in the course of which the report or record was made.^ A
suggestion of this appears in the language of the early American cases ; ^ but,
though it did not with us survive, it was in England later emphasized and
insisted upon. Its requirements are strict. Eirst, there must have been a
duty to do the very thing recorded.^ Secondly, there must have been a duty
to record or otherwise report the very thing.^ Thirdly, the duty must have
been to record or otherwise report it at the time? This limitation is a remi-*
niscence of the early history {arhte, § 1517), and is needlessly strict.
§ 1525. Same : (2) Regularity. The entry offered miSFt of course be a part
of a system of entries, not a casual or isolated one. This is necessarily in-
174 (weather-records kept at an asylum, re-
ceived) ; 1899, Roberts v. Rice, 69 N. H. 472, 45
Atl. 237 (insurance-agent's register of policies) ;
1822, Halliday v. Martinet, 20 John. 172 (no-
tary's record of protests); 1831, Nichols v.
Goldsmith, 7 Wend. 161 (cashier's notice of non-
payment of note) ; 1865, Leland v. Cameron, 31
N. Y. 121 (entry in a lawyer's record-book of
the proceedings in a cause) ; 1874, Livingston v.
Arnoux, 56 id. 518 (receipt by a sheriff for
money paid by a judgment-debtor in redemption
of land sold on execution) ; 1876, Fisher v.
Mayor, 67 id. 77 (attorney's books) ; 1895, Dick-
ens f. Winter, 169 Pa. 126, 32 Atl. 292 (time-book
of teaming done).
Vox¬ary's entries, see further posi, §§ 1525,
1675.
¥ox prices current, see post, § 1704.
For corporation-books, see ante, § 1 074.
For surveyors' notes, see further post, § 1 524,
1566, 1665.
* 1865, Gray, J., in Kennedy w. Doyle, 10 All.
161 ("An entry made in the performance of a
religious duty is certainly of no less value than
one made by a clerk, messenger, or notary, an
attorney or solicitor, or a physician, in the course
of his secular occupation ").
° The cases are collected posf, § 1644.
° The cases are collected post, § 1641.
1 England: 1831, Chambers v. Beruasconl,
1 C. & J. 451 ; on app. I C. M. & R. 347 ; 1843,
B. V. Worth, 4 Q. B. 132 (rejecting a farmer's
book of his farm-laborers' work done, because
not " made in the discharge of some duty for
which he is responsible"; " actually in the dis-
charge of a dut^to another person"); 1887,
Lyell V. Kennedy, 35 W. R. 725; Canada:
1877, O'Connor v. Dunn, 2 Out. App. 247 (de-
ceased surveyor's notes made as a part of his
regular entries, not admitted on the facts) ;
1883, Canada C. R. Co. v. McLaren, 8 id. 564
(engineer's entry in a repairs-book, made in the
course of duty after a fire ; opinions inconclu-
sive).
2 E. g. Story, J., in NichoUs v. Webb, quoted
ante, § 1523.
* 1867, Smith v. Blakey, L. R. 2 Q. B. 332
(Blackburn, J. : " The duty must be to do the
very thing to which the entry relates, and then
to make a report or record of it ") ; 1879, Polini
V. Gray, L. R. 12 Ch. D. 431 ; 1887, Lyell v. Ken-
nedy, supra, per Bowen, L. J. ; 1885, McGregor
II. Keillor, 9 Ont. 677 (deceased surveyor's field
notes, not made in execution of a specific duty,
excluded).
* 1831, Chambers v. Bernasconi, supra (re-
jecting a deputy's return of the place of arrest,
because " it may be the duty of the sheriflfa offi-
cer to make a return to the sheriff that he has
made the arrest, but it is not a necessary part of
that duty that he should state the particular place
of the arrest " ; " the statement of other circum-
stances, however naturally they may be thought
to find a place in the narrative, is no proof of
those circumstances") ; 1867, Smith v. Blakey,
supra; 1879, Poliui v. Gray, L. R. 12 Ch. D.
420, 426, 431 ; 1879, Trotter v. McLean, L. R.
13 id. 579 ; 1879, Massey v. Allen, ib. 558; 1887,
LyeU I'. Kennedy, supra,
» 1867, Smith v. Blakey, supra; 1879, Polini
V. Gray, supra.
1891
§ 1525 EXCEPTIOITS TO THE HEAESAY RULE. [Chap. LI
volved in the reasons {ante, § 1522) on which the rule is founded. Thus, a
single entry in a book, made after it has been closed or put away, or without
using it again, or a memorandum casually made, would not answer this
requirement.! ^pj^jg regularity of the record may be evidenced by inspection
of the book ; and the fulfilment of this requirement is for the Court to pass
upon in each case.^
§ 1526. Contemporaneous with the Transaction. The entry should have
been made at or near the time of the transaction recorded,^ — not merely
because this is necessary in order to assure a fairly accurate recollection of
the matter, but because any trustworthy habit of making regular busi-
ness records will ordinarily involve the making of the record contempora-
neously. The rule fixes no precise time; each case must depend on its
own circumstances.
§ 1527. No Motive to Misrepresent. It is often added that there must
have been no motive to misrepresent.^. This does not mean that the offeror
must show an absence of all such motives ; but merely that if the existence
of a fairly positive counter-motive to misrepresent is made to appear in a
particular instance the entry would be excluded. This limitation is a fair
one, provided it be not interpreted with over-strictness. The exclusion of
the notorious Fleet registers of marriage (post, § 1642) illustrates the kind
of circumstances that call for the application of this requirement.
§ 1528. Written or Oral Statement. That the statement admissible under
the present exception must be a written statement has been generally as-
sumed in this country in the judicial phrasings of the rule.^ In England,
however, it seems to be settled that an oral statement is equally admissible.^
Since in that jurisdiction the third motive of trustworthiness {ante, § 1522)
is regarded as most important, and the statement must be made under a duty
to a third person {ante, § 1524), it may be conceded that an oral statement
1 1816, Dickson K. Lodge, 1 Stark. 226 (bill of of the daily business regularly made") ; 1901,
lading signed by a captain, not received to show Kelley «. Crawford, 1 1 2 Wis. 368, 88 N. W. 296
the shipping of goods for the plaintiff) ; 1865, (Stats. § 4189 applied, to exclude entries not
Barton v. Dundas, 24 U. C. Q. B. 275 (exclud- shown to be in the usual course of business,
ing a notice sent in unusual course) ; 1880, Lilly etc.).
V. Larkin, 66 Ala. 115 (admitting an attorney's For stenographic reports of testimony, see
indorsement to a note among an administrator's post, § 1669.
paper."!, stating the date of the account-settle- * 1848, Dow w. Sawyer, 29 Me. 119.
menfc) ; 1895, Culver v. R. Co., 108 id. 330, 18 ^ 1816, Champneys v. Peck, 1 Stark. 326 ;
So. 827 (written report on a railroad accident 1832, Doe w. Turford, 3 B. & Ad. 890. Compare
by an employee to his employer, the maker not the citations post, § 1550, under the other branch
being accounted for, excluded) ; 1875, Kibbe v. of the exception; 1878, Ray v. Castle, 79 N. C.
Bancroft, 77 lU. 19 (entry made in an account- 580.
book not used for ten years, and laid aside in ^ 1835, Poole v. Dicas, 1 Bing. N. C. 649 ;
the meantime, excluded) ; 1874, Walker v. Cur- 1839, Malone v. L'Estrange, 2 Ir. Eq. 16 ; 1879,
tis, 116 Mass. 101 (memoranda by a surveyor in Polini v. Gray, L. R. 12 Ch. D. 430, per Brett,
the course of his employment on a particular L. J. ; 1854, Lord v. Moore, 3/ Me. 220; 1865,
enterprise, admitted) ; 1901, Sexton v. Perrigo, Kennedy v. Doyle, 10 All. 161 ; 1890, Lassone
126 Mich. 542, 85 N. W. 1096 (under Comp. L. ». R. Co., 66 N. H. 345, 354, 24 Atl. 902.
§ 2635, a deceased notary's certificate of protest ^ But see the passage from Swayne, J., in
is not admissible as a regular entry, when the fact Fennerstein's Champame, ante, § 1522.
of notice is denied by affidavit) ; 1897, Barley w. * 1844, Lord Campbell, in Sussex Peerage
Byrd, 95 Va. 316, 28 S. E. 329 (memorandum by Case, 11 CI. & F. 113 (" a declaration by word of
Bushrod Washington, as agent for James Wil- mouth or by writing made In the course of the
son, receipting for the possession of a deed ; ex.- business"); 1873, R. v. Bnckley, 13 Cox Or.
eluded, because not found in a book of " entries 293 (oral report of a constable).
1892
§§ 1517-1561] REGULAR ENTRIES. § 1530
would be scarcely inferior to a -written one in trustworthiness. In this coun-
try, however, where that limitation does not obtain, the trustworthiness of
an oral statement would seem to be far inferior to that of a written one,
especially as affected by the second reason for the rule {ante, § 1522). Never-
theless, in the actual conduct of business by subordinates in mercantile or
industrial houses (practically the only class of persons by whom oral reports
,are regularly made), the element of duty (as required in England) does in
fact exist ; and where it does exist, the case seems a proper one for the adop-
tion of the broader English rule admitting oral statements. Apart from the
above considerations, there is no reason for distinguishing between oral and
written statements to the disadvantage of the former ; no such distinction is
made in most of the other Exceptions. In those Courts admitting entries
based on joint knowledge {post, § 1530) there is in effect an acceptance of
oral reports.
3. Testimonial Qualifications, and Othei Independent Rules of Evidence.
§ 1530. Personal Eno'wledge of Entrant; Entries by Bookkeeper, etc., on
report of Salesman, Teamster, etc. (1) There can be no doubt that the
general principle of testimonial evidence {ante, § 657) should apply here
as elsewhere, namely, that the person whose statement is received as tes-
timony should speak from personal observation or knowledge. This prin-
ciple has often been invoked in excluding entries made by a person who had
no personal knowledge of the supposed facts recorded.'
(2) But does this principle necessarily exclude all entries made by per-
sons not having personal knowledge of the facts entered? May not this
lack of personal knowledge on the part of the entrant be supplemented by
the personal knowledge of some other person whose knowledge is in fact
represented in the entry ? In other words, if the element of personal knowl-
edge can somehow be adequately supplied by a third person, it is material
that the entrant himself did not have this personal knowledge 1 In order to
work out this problem, it is necessary to. keep in mind the results already
established in connection with the doctrine about memoranda of past recol-
lection {ante, § 751). It was there noticed that a memorandum whose cor-
rectness was established by composite testimony could be used ; for example,
if S has made a written memorandum of a transaction done by him, and has
1 1873, Aver>'s Ex'rs v. Avery, 49 Ala. 195. with W., not admitted on the mere testimony-
Peters, J. ; " Such a book must contain the of a cashier who did not keep it or receive or
registration of some fact ... by one who pay the money) ; 1842, Livingston v. Tyler, 14
would at the time have been a competent wit- Conn. 498 ; 1854, Lord v. Moore, 37 Me. 220 ;
ness to the fact which he registered. Accord: 1873, Chaffee v. U. S., 18 Wall. 542 (entries ex-
1842, Batre v. Simpson, 4 Ala. 312; 1880, Davis eluded of a collector of freight noting arrivals
V. Tarver, 65 id. 102 (entries by a clerk of an of whiskey, but made merely on a perusal of the
alleged lunatic were not admitted to show that B. L. offered by the ship-captains, who them-
the goods received were necessaries and were selves had no personal knowledge that the freight
the consideration of a note) ; 1890, McDonald had even been shipped) ; 1876, Connecticut M.
V. Cames, 90 id. 148, 7 So. 91 9 (" all matters with- L. I. Co. «. Schwenk, 94 U. S. 598 (entry by a
in the knowledge of the person making the en- lodge secretary of the age of a member, in a
tries ") ; 1900, Walling v. Morgan Co., 126 id. minute-book of an Odd Fellows' Lodge, ex-
326, 28 So. 433 (bank-book containing an account eluded).
1893
§ 1530 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
given the writing to B, who has copied it and destroyed the original, then if
S swears the original to have been accurately made, and if B swears the copy
to be correct, the copy produced is thus by their joint testimony rendered an
accurate record of the transaction, although B alone has no personal knowl-
edge of the transaction and although S alone does not know the copy to be
correct. Furthermore, it was seen to be the generally and properly accepted
extension of that doctrine that the same result ensues where S's original
statement to B was an oral report, not a written memorandum, as in the
typical case of a salesman and a bookkeeper ; because in this case S swears
that his report of the transaction to B was an accurate statement of what
he did, and B swears that his entry was a correct record of what B reported
to him ; B's written entry thus being in truth a copy of S's report, as effect-
ually as it would have been a copy of a memorandum. Now this doctrine
suffices only for cases where both S and B are produced, and by their joint
testimony on the stand verify the writing as a memorandum of past recol-
lection (under § 751, ante). If either S or B does not come to the stand, then
the offer contains an element of hearsay assertion, and therefore the writing
can be admissible, if at all, only under the present Exception. Is there any
fatal objection in the way of this ? By no means. There are three possible
situations :
(1) Suppose B, the entrant, to be deceased ; here, if S, the actor in the
transaction, swears to the correctness of his original memorandum or oral
report, the element of personal knowledge is sufficiently supplied ; and
the entry of B is then admissible if it was made in the regular course of
business.
(2) Suppose S, the transactor, to be deceased, but B, the entrant, to swear to
the entry as correctly representing B's memorandum or oral report ; here B's
entry,tif based on a memorandum, would be sufficient, as supplying the ele-
ment of S's personal knowledge, if made in the regular course of business ;
its production being impossible by destruction, and S being unavailable by
decease. If S's statement were an oral report (as often in the case of sales-
men, teamsters, foremen, tallymen, and the like), it would be none the less
made in the regular course of business ; but here, although, as already seen
{ante, § 1528), the Exception does not ordinarily in the United States cover
oral statements, nevertheless the reasons of the Exception {ante, § 1522)
apply to admit it. In the first place, it is made in the course of a duty
to a third person, which in England suffices to admit oral statements ;
secondly, the immediate reduction to writing by B removes in the main
the objections which might otherwise exist to admitting merely oral state-
ments, and brings into play with practically full effect the two reasons
already mentioned {ante, § 1522) as obtaining for written entries. In short,
there is every reason for taking as admissible these oral reports of a deceased
person in the regular course of business and duty, supplying the element of
personal knowledge, and correctly recorded in the entry sworn to by B.
(3) Suppose both B and S, entrant and transactor, to be deceased ; here
1894
§§ 1517-1561] REGULAR ENTRIES. § 1530
there is presented merely the first and the second cases combined ; if we con-
cede admissibility for those two cases, it must be conceded for this also.
One more consideration remains to be noted. The supposition in the
above cases was that B or S or both were deceased. But suppose, instead,
that S, the salesman, teamster, or the like, is otherwise unavailable ; is the
result to be any different ? It need not be. In the language of Chief Jus-
tice Shaw, already quoted {ante, § 1521) : "The ground is the impossibility
of obtaining the testimony, and the cause of such impossibility seems im-
material." Now the ordinary conditions of mercantile and industrial life in
some offices do in fact constantly present just such a case of practical impos-
sibility. Suppose an, offer of books representing transactions during several
months in a large establishment. In the first place, the employees have in
many cases changed and the former ones cannot be found ; in the next place,
it cannot always be ascertained accurately which employee was concerned in
each one of the transactions represented by the hundreds of entries ; in the
third place, even if they could be ascertained, the production of the scores of
employees, to attend court and identify in tedious succession the detailed items
of transactions would interrupt and derange the work of the establishment,
and the evidence would be obtained at a cost practically prohibitory ; and
finally, the memory of such persons, when summoned, would usually aiford
little real aid. If unavailability or impossibility is the general principle that
controls {ante, § 1521), is not this a real case of unavailability ? Having re-
gard to the facts of mercantile and industrial life, it cannot be doubted that
it is. In such a case, it should be sufficient if the books were verified on the
stand by a supervising officer who knew them to be the books of regular
entries kept in that establishment, and the production on the stand of a
regiment of bookkeepers, salesmen, shipping-clerks, teamsters, foremen, or
other subordinate employees, should be dispensed with. No doubt much
should be left to the discretion of the trial Court ; production may be- re-
quired for cross-examination, where the nature of the controversy seems to
require it. But the important thing is to realize that upon principle 'there is
no objection to regarding this situation as rendering in a given case the pro-
duction of all the persons practically as impossible as in the case of death.
The conclusion is, then, that where an entry is made by one person in the
regular course of business, recording an oral or written report, made to him, by
one or more other persons in the regular course of business, of a transaction
lying in the personal knowledge of the latter, there is no objection to receiving
that entry under the present Exception, provided the practical inconvenience of
producing on the stand the numerous persons thus concerned would in the par-
ticular case outweigh the probable utility of doing so. Why should not this
conclusion be accepted by the courts ? Siich entries are dealt with in that way
in the most important undertakings of mercantile and industrial life. They
are the ultimate basis of calculation, investment, and general confidence in
every business enterprise ; nor does the practical impossibility of obtaining
constantly and permanently the verification of every employee affect the
1895
§ 1530 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LI
trust that is given to such books. It would seem that expedients which
the entire commercial world recognizes as safe could be sanctioned, and not
discredited, by Courts of justice. When it is a mere question of whether
provisional confidence can be placed in a certain class of statements, there
cannot profitably and sensibly be one rule for the business world and another
for the court-room. The merchant and the manufacturer must not be turned
away remediless because methods in which the entire community places a
just confidence are a little diflacult to reconcile with technical judicial scruples
on the part of the same persons who as attorneys have already employed and
relied upon the same methods. In short, Courts must here cease to be pedan-
tic and endeavor to be practical
In the following judicial passages are expounded some of the reasons that
have led Courts to sanction the principles here involved :
1853, Lumpldn, J., in Fielder v. Collier, 13 Ga. 499: " Shall the plaintiffs be compelled
to go behind the books thus verified by the clerks who kept them, and resort to each of
the sub-agents who participated in the transaction and sale of this produce? Are not the
entries thus made in the usual course of the business of this extensive trading establish-
ment, and as a part of the proper employment of the witnesses who prove them, not only
the best, but the only reliable evidence which it is practicable to secure ? We have no
hesitation in holding that propriety, justice, and convenience require it to be admitted.
The weighers, wharfingers, and numerous subordinates who handled this cotton kept no
books. They report to the clerks who keep the books of the concern, and their functions
are performed. It is not reasonable to suppose that they can remember the multitude of
transactions thus occurring every day. ... To impose a different rule upon these estab-
lishments, whether at home or abroad, and to require them at all times, within the stat-
utory period of limitations, to be prepared with original aliunde evidence to prove the
terms of sale of all the property consigned to them, each item of expense, etc., would
trammel commerce and amount to a denial of justice."
1895, Thayer, J., in Nelson v. Bank, 16 C. C. A. 425, 69 Fed. 805 (books of camp-
sealers ; the scalers measured the logs and entered the amounts on cards ; each day these
cards were copied into the scale-book ; inspectors periodically verified them by measuring
a portion of the logs sufficient to test the book's accuracy, the scale-book was sent to the
log-owner, and payment made by him on the faith of it to the log-cutters ; the inspectors tes-
tified to the book's correctness ; the opinion quotes from the Court below) : " ' It is said that
the camp-sealers should have been hunted up and their testimony introduced. . . . When
the scalers made the count and measurement, two records thereof were made, — one in the
memory of the scaler, the other in the scale-book. Which is now the best evidence ?
Years have elapsed. The entries on the scale-book remain unchanged; they are now
just what they were when originally made. Can the same be said of the record made
upon the memory of the scalers ? If the scalers had been produced and had testified
that ... as they now remembered it the number and quantity were so and so, but upon
the production of the scale-books they showed a different quantity and measurement,
which should control ? ... It cannot be maintained that there is more reliable evidence
than the scale-book.' For the reasons so well stated by the trial judge, we entertain no
doubt that the scale-books in question were properly received in evidence. They appear to
have been kept under conditions that were calculated to prevent mistakes therein, and to
ensure a high degree of accuracy. They were also identified by witnesses who were
familiar with their contents, and whose special duty it was to see that they were properly
and accurately kept."
1902, Wilkes, J., in Continental National Bank v. First National Bank, 108 Tenn.
374, 68 S. W. 497 (holding a bank's books sufficiently verified by the cashier, without
1896
§§ 1517-1561] REGULAK ENTEIES, § 1530
calling the bookkeeper) : " We think it not necessary that the bookkeeper who made the
entries should be examined as to their correctness. At most he could only testify that
the entries made by him are true entries of transactions reported to him by others. In
other -words, he could only testify that he wrote down what others told him. The Court
knows, as a matter of common information, that there are many persons in the employ
of banks, and each has his different department, and each transaction passes through
the hands of several — it may be, of many — persons. We take a deposit, for instance.
It goes into the hands of the receiving teller, thence into the hands of a journal clerk,
thence to the individual bookkeeper, or such other officials as perform the functions of
these officers. When it reaches the hands of the bookkeeper, who makes the final entry,
which stands as the true statement between the bank and depositor, it has gone
through the hands of a dozen parties, perhaps ; and the last party only records what
comes to him through so many hands, and knows nothing, it may be, of the actual trans-
action. It would seem that the cashier, whose function it is to overlook all transactions
at the counter and over the books, and test each transaction through all its stages,
would be the person most competent to produce the books and vouch for their accuracy."
The rulings upon the subject are, as may be imagined, not harmonious.
(a) There are, first, a number of decisions accepting with practical complete-
ness the conclusion above reached, i. e. in given cases admitting verified
regular entries without requiring the salesman, time-keeper, or other original
observer having personal knowledge, to be produced or accounted for.^
(J) There are rulings admitting verified regular entries after a showing that
the original observer was deceased ; possibly absence from the jurisdiction,
insanity, or the like, would equally have sufficed.^ (c) There are rulings
^ 1892, U. S. V. Cross, 20 D. C. 379 (the sheet, made ap by combined reports of operators
marshal's office kept a record of measurements at various stations, and showing whereabouts of
of convicted persons, the clerk writing down trains; received on verification by the collector,
the measurement as called out by the subor- without accounting for operators ) ; 1895, Nelson
dinate taking it ; the clerk C. alone was called ; v. Bank, 16 C. C. A. 425, 69 Fed. 805 (see
Cox, J.: "It was said that it was hearsay on quotation supra); 1898, Northern P. E. Co. v.
the part of Carroll, because he did not take the Keyes, C. C, 91 Fed. 47 (tables of railroad
measurement. ... In a complicated transac- business prepared under direction of general
tion in which two persons participate, we do officers by 40 or 50 clerks; officers called, but
not think it is essential that each one should clerks not called, though available and willing
have personal knowledge of all the steps in the to testify ; admitted ; good opinion) ; 1902, Con-
transaction. For example, a merchant in his tinental Nat'l Bank v. First Nat'l Bank, 108
store selling goods calls out the price and the Tenn. 374, 68 S. W. 497 (bank account-books
character of his goods, and his clerk writes held to be sufficiently verified by the cashier,
them down ; that is in the regular course of without calling the bookkeeper ; see quotation
business; and it would not be necessary that supra); 1903, United States v. Venable C. Co.,
the clerk should follow the merchant around C. C, 124 Fed. 267 (a constructing engineer's
and have a personal knowledge of all that tables of work and materials, based chiefly on
passed between him and his customer") ; 1853, the regular written reports of numerous snbor-
Fielder v. Collier, 13 Ga. 496, 499 (see quotation dinates, admitted, without calling the latter) ;
supra) ; 1880, Schaefer v. R. Co., 66 id. 39, 43 1897, Dohmen Co. v. Ins. Co., 96 Wis. 38, 71
(witness making records of receipts and ship- N. W. 69 (to show the amount of goods on
ments of cotton by his subordinates in the hand, a set of books properly verified by the
office; admitted, without accounting for the bookkeeper and the manager of the business,
others, on the ground of public convenience; held admissible, though neither has actual
following Fielder «. Collier) ; 1896, Chisholm «. knowledge of the specific transactions; the
Machine Co., 160 111. 101, 43 N. E. 796 (work- opinion specifies in full certain conditions, and
men made out time-slips of work done, foremen is worth careful reading); Wis. Stats. 1898,
examined and checked them, and bookkeepers § 4189 (quoted ante, § 1519).
entered them in time-books, errors being checked ' 1897, Stanley v, Wilkerson, 63 Ark. 556,
and corrected throughout; the bookkeepers tes- 39 S. W. 1043 (salesmen's books were burned
tified to the correctness of the books, and the and the salesmen deceased; journal and ledger
foremen the slips, but not the workmen ; the copies, verified by the bookkeepers, were ad-
books were held admissible) ; 1893, Donovan v. mitted) ; 1902, Meyer v. Brown, 130 Mich. 449,
R. Co., 158 Mass. 450, 452, 33 N. E. 583 (train- 90 N. W. 285 (record of car-weights, testified to
1897
§ 1530
EXCEPTIONS TO THE HEARSAY RULE.
[Chap. LI
excluding such entries because the original observer was in no way accounted
for, or declaring that he must be produced, without deciding what excuse, if
any, for non -production would suffice.* (d) Finally, a few rulings inexorably
exclude such entries even where the original observer is accounted for as
absent from the jurisdiction, or the like, i. e. declining to excuse his non-
production on such grounds, and thus inconsistent with the general principle
(ante, § 1521).5
§ 1531. Form or Language of the Ent3-y; Impeaching the Entrant's Credit.
Apart from the general rule, already dealt with (ante, § 1528), that the state-
ment must be in writing, there is no limitation as to the mode of written
expression. Any mark or sign that is interpretable as having a definite
meaning will suffice.-' The absence of an entry, where an entry would natu-
rally have been made if a transaction had occurred, should ordinarily be
equivalent to an assertion that no such transaction occurred, and therefore
should be admissible in evidence for that purpose ; ^ the same question arises
for other kinds of evidence (post, §§ 1556, 1639).
by the weighmasterr admitted without calling
the weigher, the original card being lost and
the weigher's identity impossible to ascertain) ;
1823, McNeill v. Elam, Peck Tenn. 268 (de-
ceased notary made protests and notices, and
his daughter entered them under his instruc-
tions ; admitted ; whether the daughter was
called does not appear) ; 1896, American Surety
Co. i>. Pauly, 18 C. C. A. 644, 72 Fed. 470 (a
ledger of receipts and payments ' kept by the
booKkeeper of a bank, from checks and deposit-
tags handed him by the teller, and representing
the moneys received and paid out by the teller ;
the teller being dead, the bookkeeper verified
his entries, which were received to show the
amounts received and paid out by the teller).
I * 1869, Leslie v. Hanson, 1 Han. N. Br. 263
' (book made from numbers marked by different
persons on logs sawn, not admitted, in the absence
of satisfactory testimony from all the persons
who liad measured and marked the logs) ; 1899,
Butler V. Estrella B. V. Co., 124 Cal. 239, 56
Pac. 1040 (salesbooks kept by witness from
report of manager not called, excluded) ; 1902,
Whitley Grocery Co. v. Roach. 115 Ga. 918, 42
S. E. 282 (an inventory made by three persons,
one or two examining the articles and one or
two entering the items, but only two of the
three testifying, held not admissible) ; 1902,
Meadows v. Frost, ib. 1002, 42 S. E. 390 (books
kept by one who merely copied slips handed to
her by another person not called, held inadmis-
sible) ; 1898, Pennsylvania Co. v. McCaffrey,
173 111. 169, 50 N. E. 713 (book kept by a desk-
sergeant of police made from reports of accidents
by other policemen based on hearsay, excluded ;
probably correctly, because the polii;:^men them-
selves had not personal knowledge) ; 1857, White
V. Wilkinson, 12 La. An. 360 (bookkeeper and
salesman ; apparently oral reports by the latter) ;
1897, Swan w. Thnrman, 1 1 2 Mich. 416, 70 N. W.
1023 (books testified to by a bookkeeper, who
made the entries upon the salesmen's reports ;
excluded, as not founded upon personal knowl-
1898
edge); 1901, Carlton v. Carey, 83 Minn. 232,
86 N. W. 85 (book made up by A on information
furnished by memoranda from a workman B,
excluded, as not based on personal knowledge ;
but here neither A nor B was called or shown
to be unavailable) ; 1903, Price v. Standard L.
& A. Ins. Co., — id. — , 95 N. W. 1118 (hospital
register, with entries by a superintendent based
on reports of a physician, but verified by the
former only, without calling the latter, excluded) ;
1896, New Jersey Zinc & I. Co. v. L. Z. & I. Co.,
59 N. J. L. 189, 35 Atl. 915 (bookkeeper's
entries of deliveries of which he knew notliing,
excluded).; 1 886, Mayor of New York v. R. Co.,
102 N. Y. 572, 7 N. E. 905 (sub-foreman's oral
reports to foreman) ; 1894, The Norma, 15 C. C.
A. 553, 68 Fed. 509 (foreman and bookkeeper) ;
1894, Tingley v. Land Co., 9 Wash. 34, 42, 36
Pac. 1098 (entries in book made by witness from
memoranda partly by scalers of logs, excluded).
° 1854, Kent v. Garvin, 1 Gray 150 (dray-
man orally reporting to clerk, the former being
in California) ; 1894, Chicago Lumberine Co. v.
Hewitt, 12 C. C. A. 129, 64 Fed. 314 (tallies of
logs reported in writing by F., copied by M. ;
F. had disappeared, through what the Court
considered the negligence of the party offering
the books).
For the same question arising for parties'
books, see post, § 1555; the cases are not usu-
ally discriminated, and indeed involve the same
principle.
1 1833, North Bank v. Abbot, 13 Pick. 471.
Compare the same principle applied to parties'
books, post, § 1556.
* 1886, Bridgewater v. Eoxbury, 54 Conn,
217, 6 Atl. 415 (said obiter); 1896, State v.
McCormick, 57 Kan. 440, 46 Pac. 777 (a book
of depositors, admitted to show that J. was not
a depositor) ; 1901, Bastrop State Bank v. Levy,
106 La. 586, 31 So. 164 (bank's deposit-entries,
held evidence that no other sums tlian there
recorded had been received by it). Contra :
19a3, Vandyke o. R. Co., — Ky. — , 71 S. W.
§§ 1517-1561] REGULAR ENTRIES. 4 1563.-^
The rules for impeaching the credit of the entrant would presumably be
those accepted for parties' books {post, § 1557).
§ 1532. Production of Original Book. The general rule requiring the
production of the original of a writing {ante, § 1179), applies no less to
entries offered under this Exception than to other writings ;^ but the rule is
of course satisfied where the original is accounted for as lost or otherwise
unavailable.^ As between different kinds of account-books, — a ledger, a
journal, and the like — , the question will arise which of them is to be con-
sidered as the original ; and upon this point the rules developed for parties'
books {post, § 1558) would presumably be regarded as here applicable.
§ 1533. Opinion Rule. The Opinion rule {post, § 1917) doubtless applies
in theory to this class of testimonial evidence as to others. But as the
entrant is not before the Court, being deceased or otherwise unavailable,
the rule will usually not properly exclude the entry, since (as already noted
for Dying Declarations, ante, § 1447, there is no opportunity by questions to
obtain from the witness the data of bare facts separated from his infer-,
ence or opinion thereon. To apply the much misused Opinion rule in thia
connection can hardly ever be justified.*
B. Parties' Account-Books.
§ 1536. In General. The history {ante, § 1518) of that branch of the
Exception which admits parties' account-books or shop-books gave to it a
development and a series of precedents distinct from that of the general Ex-
ception. Nevertheless, the principles upon which this branch was developed
in the Courts of the United States show equally a recognition of the two
traditional features of hearsay exceptions in general, namely, the Necessity
principle {ante, 1431), and the Circumstantial Guarantee of Trustworthiness
{ante, § 1422). The application of the principle of necessity lay in this, that
since a party was disqualified as a witness for himself, and since in certain
classes of transactions he was thus totally without evidence obtainable from
others, certain past statements of his must be admitted by very necessity.
Moreover, his own shop-hooks were regarded as being more or less trust-
worthy, for reasons analogous to those already examined {ante, § 1522).
Thus, the principle of necessity and the principle of a circumstantial guar-
antee were both recognized ; and the case stood on the ordinary footing of an
exception to the Hearsay rule, without reference to other specific exceptions.
When parties were made competent, on their own behalf, a main reason —
441 (" usually admitted only as affirmative evi- S. C. 651, 24 S. E. 56 (ledger admitted, the
dence"); 1860, Sanborn v. Ins. Co., 16 Gray original entry being burned); 1873, Burton v.
448, 452, 455 (absence of an entry in a risk-book Driggs, 20 Wall. 135 (original out of the juris-
regularly kept, not received to show that the diction),
contract was not made). Consult the rules and citations ante, §§ 1192-
1 1859, Churchill v. Fulliam, 8 la. 45 ; 1879, 1230.
Peck V. Parchen, 52 id. 46, 54, 2 N. W. 597 ; ^ 1888, Bradford v. S. S. Co., 147 Mass. 57,
1826, Herring v. Levy, 4 Mart. n. s. 386. 16 N. E. 719 (report of an appraiser, made in
^ 1831, Holmes v. Marden, 12 Pick. 171 the regular course of employment, stating the
(original burned) ; 1896, Eigby «. Logan, 45 amount of damage, excluded).
VOL. II. — 57 1899
§ 1536 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
the necessity — disappeared ; but the form of the rule was established before
this change was made ; and its limitations can therefore be understood only
by keeping in mind that the original attitude of the Courts in establishing it
was precisely analogous to their attitude towards other Hearsay exceptions.
It may be noted here that in a few jurisdictions this branch of the Excep-
tion was never judicially recognized,^ apart from modem statutes.
1. The Necessity Principle.
§ 1537. Nature of the Necessity. The foundation of the admission of parties'
shop-books or account-books in the United States was a necessity, resting in
two circumstances ; first, the disqualification of the party to take the stand
as a witness, and, secondly, the conditions of mercantile and industrial life in
the early days, which left the party generally without other evidence than
his own statements in the books. This appears in the language of the judges
in all the jurisdictions and epochs ; and the specific rules of limitation grew
directly out of this living principle :
1808, Tilghman, C. J., in Slarrett v. Bull, 1 Binn. 237 : "In consideration of the mode of
doing business in the infancy of the country, when many people kept their own books, it
has been permitted from the necessity of the case to offer these books in evidence. . . .
No such necessity exists when the fact is that clerks have been employed and the entries
made by them."
1810, Sivift, C. J., Conn., Evidence, 81: " This provision of the statute is grounded on
the necessity of the thing ; for in many instances it would be very difficult to obtain other
or better proof."
1816, Parker, C. J., in Faxon v. Hollis, 13 Mass. 427: " [The exception] is necessary
for the security of tradesmen and small dealers, who are generally unable to support
clerks on whose testimony they might establish their claims."
1888, Hitchcock, J., in Cnim v. Spear, 8 Hamm. 497: " The mischief to be remedied
was the extreme difficulty, and in many cases the utter impossibility of proving the quan-
tity, quality, or delivery of articles passing from one person to another upon credit and
which are ordinarily charged upon book. The merchant does not always keep a clerk by
whom this proof could be made ; the farmer or mechanic rarely if ever. Hence the neces-
sity of the statute."
1882, Devens, J., in Pratt v. White, 132 Mass. 477 : " It has been sanctioned as an excep-
tion to the general rule of law, as it formerly existed, that a party should not be a witness
in his own cause, and from supposed necessity in order to prevent a failure of justice, that
he shall be allowed to produce the record of his daily transactions, to many of which, on
account of their variety and minuteness, it cannot be expected there will be witnesses."
1892, Andrews, J., in Smith v. Rentz, 131 N. Y. 169, 30 N. E. 54: "It was founded
upon a supposed necessity, and was intended for small traders who kept no clerks." i
What, then, were the specific rules of limitation growing out of this prin-
ciple of necessity ?
1 Ala. : 1842, NoUey ii. Holmes, 3 Ala. 642 ; G. & J. 142 ; Mo. . 1855, Hissrick v. McPherson,
1845, Grant v. Cole, 8 id. 521 ; 1 846, TnrnipBeed 20 Mo. 310.
V. Goodwin, 9 id. 378; 1873, Avery's Ex'rs v. ^Accord: 1860, Landis v. Turner, 14 Cal.
Avery,49id. 195; Fla.: 1852, Higgs w. Shehee, 575; 1825, Beach v. Mills, 5 Conn. 496; 1832,
4Fla. 385; Tnd.i 1836, De Camp r. Vandegrift, Terrill v. Beecher, 9 id. 348; 1833, Dunn v.
4 Blackf 272; La. : 1844, Martinstein v. Cred- Whitney, 10 Me. 14; 1852, Cole v. Dial, 8 Tex.
itors, 8 Uob. 8; Md. . 1833, Owings v. Low, 5 349.
1900
§§ 1517-1561] EEGULAK ENTRIES. § 1539
§ 1538. Not admiasible where a Clerk was Kept. The party must have
been his own bookkeeper ; ^ moreover he must have had no clerk helping
him ; ^ for if he had, the clerk could be called if living, or, if deceased, his
book-entry could be used.
This limitation has been enforced even in recent times. But the tendency
has been to lose sight of it, — a result partly due to the legislation on the
subject (ante, § 1519), which in many jurisdictions has expressly provided in
the same statutory passage for the admission of a party's books and also of
books kept by a deceased clerk. Now the entries of a clerk were already ad-
missible at common law, either as memoranda of a past recollection verified
by the clerk on the stand {ante, § 745), or, the clerk being deceased or other-
wise unavailable, as regular entries in the course of business, under the main
Exception just treated {ante, §§ 1521-1529). The result, then, of the statu-
tory enactments, so far as entries by a clerk are effected, is left uncertain.
Either it may be thought that the statute merely sanctioned in part the
common-law exception for regular entries by a deceased person ; or it may
be thought that the statute abolished for parties' books the limitation to
persons having no clerk and acting as their own bookkeepers. The latter
would be the more natural inference, and would involve less doubt and con-
fusion as to the effect of the change.^ Nevertheless, the limitation in some
statutes to clerks deceased or absent is inconsistent with this interpretation.
The truth is that the statutory enactments often leave it impossible to say
what is the precise significance of the change. It hardly matters, for the
books of the clerk, living or dead, are available in any event, in the modes
above noted.
§ 1539. Not admissible for Cash Payments or Loans. On the same prin-
ciple of necessity, it was usually held that entries of cash payments or loans
could not be used ; because notes or receipts would have been or ought to
have been taken, and thus other evidence would be extant :
1852, Potts, J., in Inslee v. PralVs Executor, 23 N. J. L. 463: Potts, J. (rejecting a
series of cash entries) : " We must endeavor to solve the question by a resort to first
principles. . . . The consideration of necessity introduced the rule in reference to the
1 1871, Kerr v. Stivers, 34 la. 125, Contra: Smith, 163 N. Y. 168, 57 N. E. 300 (but a wife
1882, McGoldrick v. Traphageu, 88 N. Y. 334, is not a clerk). Contra, semble : 1831, Martin w.
338 (lack of a " clerk " does not mean lack of a Fyffe, Dudley Ga. 16.
mere bookkeeper, but of " one who had some- In the following cases entries actually made
thing to do with and had knowledge generally by clerks were treated as the party's; 1845,
of the business of his employer with reference to Littleiield v. Rice, 10 Mete. 209 ; 1834, Bhoads
goods sold or work done, so that he could testify v. Gaul, 4 Rawle 407 ; 1841, Cummings u. Ful-
on that subject, . . . and thus is able to prove lam, 13 Vt. 439.
an account"; two judges diss.). Of course if there is a clerk, who made the
^ Cat. : 1860, Landis v. Turner, 14 Cal. 576; entries, he may take the stand and use them as
1886, Watrous v. Cunningham, 71 id. 32, 11 Pac. his own memoranda of recollection ; 1853, Hum-
811; Mich.: 1860, Jackson v. Evans, 8 Mich. phreys v. Spear, 15 111. 275; and cases cited
476, 481 ; ///..• 1841, Boyer v. Sweet, 3 Scam, post, § 1561.
122; 1859, Waggeman o. Peters, 22 id. 42, ' iggg^ House y. Beak, 141 111. 290,297,30
semble; 1869, Ruggles v. Gatton, 50 111, 416; N. E. 1065 ("It was not the intention of the
Me.: 18.33, Dunn 1). Whitney, 10 Me. 14; N.Y.: statute to prohibit the introduction in evidence
1815, Vosburgh v. Thayer, 12 John. 461 ; 1834, of books of account kept by a clerk," if living
Linnell v. Sutherland, II Wend, 568; 1838, in the State and able to testify). Compare
Sickles 0. Mather, 20 id. 74; 1900, Smith v. § 1561, ^jos*.
1901
5 1539 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LI
admission of books of account. ... I hold, first, that there is not and neyer was a neces-
sity for making books of entry evidence of the payment or the lending of money. There
is no such great and overruling amount of inconvenience in requiring that men should
take a receipt for money when they pay it, or a note or memorandum for money when
they lend it, as that the safe, sound principle of legal evidence should be overturned on
account of it. It is the ordinary mode in which all careful, prudent men transact such
business." ^
Nevertheless, a few Courts, while applying the same principle, have regarded
it as leading to the opposite result, i. e. they have thought that there is as
much necessity for admitting cash entries as for admitting others :
1858, Lumpkin, J., in Ganahl v. Shore, 24 Ga. 24 : " In the nature of things no such
J)rinciple can be maintained. . . . The business of banking is confined almost entirely
to money items ; so of the books of factors and commission merchants ; so of brokers.
Large pecuniary advances are made by commission houses to planters, in anticipation of
crops ; the customer sends an order for a thousand dollars ; it is forwarded and charged
to the planter's account ; true, the factor has the written order, but the cash advanced
depends upon the evidence of his books. Whatever doctrine may have obtained formerly
upon this subject, the world is too much in a whirl, there is too much to be done in the
twenty-four hours now, to allow of the particularity and consequent delay in the obtain-
ing of receipts, etc. . . . He that so affirms [the rejection of money items] is haK a century
behind the age in which he lives; and to get up with it, he must forget the things that
are behind, and press forwai'd, for it will never stop or come back to him."
1822, Kirkpatrick, C. J., in Wilson v. Wilson, 1 Halst. 99 : " Upon principle I can see
no reason why a book should be lawful evidence of one item and not of another ; why it
should be evidence of goods sold and delivered, and not of money paid or advanced. Why
should there be witnesses called or receipts taken in the one case more than in the other ?
If necessity be pleaded for the one, may it not for the other also ? For they are both
transactions in the common course of business, equally necessary and, I should think,
equally frequent or nearly so." ^
In many Courts, the use of cash entries is commonly considered, not from
the present point of view, but from that of the principle of regularity in
the course of business ; and cash entries are admitted or excluded accord-
ing as they are thought to fulfil that principle or not {post, § 1549).
§ 1540. Wot admissible for Goods delivered to Others on the Defendant's
Credit. Entries of goods delivered to third persons but charged to the
1 Accord: 1861, Bank u. Plannett, 37 Ala. Hampshire, cash entries of amounts above 40s.
222, 226 (excluded, where the bank's custom or $6.66 are excluded : 1901, Waldron w. Priest,
was "to pay out moneys on the checks of its 96 Me. 36,51 Atl. 235; 1825, Union Bank v
depositors, and not otherwise ") ; 1899, Harrold Knapp, 3 Pick. 109 ; 1833, Burns i\ Fav, 14
V. Smith, 107 Ga. 849, 33 S. E. 640; 1851, Pick. 12 ; 1840, Bassett f. Spofford, 11 N. H.'267;
Brannin /'. Force's Adm'rs, 12 B. Monr. 509; 1860, Rich v. Eldredge, 42 id. 158; so too in
1901, Waldron v. Priest, 96 Me. 36, 51 Atl. 235 Wisconsin, for amounts over 85 : 1903, Brown ».
(lawyer's office docket, with entry of payment) ; Warner, 116 Wis. 358, 93 N. W. 17.
1887, Uberg v. Breen, 50 N. J. L. 145, 12 Atl. » Admitted : 1887, Hancock v. Kelly, 81 Ala.
203 ; 1898, Hauser v. Leviness, 62 id. 518, 41 368, 2 So. 281 (entries of the drawing of a biU
Atl. 725 ; 1892, Smith v. Rentz, 131 N. Y. 169, of exchange and its payment, admitted) ; 1893,
30 N. E. 54; 1794, Ducoigu v. Schreppel, 1 Peck ti. Pierce, 63 Conn. 310. 313, 28 Atl. 524;
Teates 347 ; 1819, Juniata Bank v. Brown, 5 S. 1869, Taliaferro v. Ives, 51 111. 247 (books ad-
6 U. 231. Accord, without giving a reason: mitted to show " how he had paid the notes");
1857, Le Franc v. Hewitt, 7 Cal. 186; 1841, 1902, Stephen ». Metzger, 95 Mo. App. 609. 69
Bover v. Sweet, 3 Scam. 122 ; 1869, Ruggles v. S. W. 625 ; 1893, Glenson v. Kinney, 65 Vt. 560,
Gatton, 50 111. 416; 1862, Maine i>. Harper, 4 563, 27 Atl. 208; 1896, Hay v. Peterson, 6 Wvo.
All. 115. In Massachusetts, Maine, and New 419, 45 Pac. 1073.
1902
§§ 1517-1561] EEGULAE ENTEIES. § 1543
defendant as the guarantor or the principal, and, in general, entries of a
guaranty by the defendant, cannot be used ; for the third person's evidence
is available and there is no necessity for a resort to the books.^
§ 1541. Not admissible for Terms of Special Contract. Where there were
special terms to the contract, the entry cannot be used, because there would
usually be a writing between the parties, containing the terms of the special
contract, and the book-entry would be unnecessary.^
§ 1542. Not admissible in Certain Occupations. The principle of neces-
sity may, by the nature of the occupation, exclude entirely books in certain
occupations. Thus, a schoolmaster's books have been excluded :
1823, Colcock, J., in Pelzer v. Cranston, 2 McC. 128 : " The Court have always kept in
view the necessity of the evidence. Now there ai-e few persons in business who are fur-
nished with as many witnesses as a schoolmaster may command, and there is no necessity
for admitting his books to be produced in evidence."
Yet the books of an attorney have been admitted :
1850, Wells, J., in Codman v. Caldwell, 31 Me. 561: " One objection ... is that from
the nature of the case, there must be better evidence [in existence]. But the book and
oath of a party are often received to prove sales or services known to other persons and
provable by them. . . . The demands of attorneys are sustainable by any mode of proof
applicable to other descriptions of persons." ^
§ 1543. Not admissible for Large Items, or for Immoral Transactions. The
foregoing are the chief limitations generally acknowledged. But sundry dif-
ferent transactions have been from time to time ruled upon as exemplifying
the necessity or non-necessity of using the entries.^ So far as any further
>■ Conn.: 1836, Green u. Pratt, U Conn, 205 ; 146; 1838, Dauser v. Boyle, 16 N. J. L. 395;
Mass.: 1808, Prince v. Smith, 4 Mass. 458; 1896, Wait r. Krewson, 59 id. 71, 35 Atl. 742;
1838, Faunce K. Gray, 21 Pick. 247 ; 1852, Keith 1841, Lonergan v. Whitehead, 10 Watts 249;
V. Kibbe, 10 Gush. 36; 1861, Gorman v. Mont- 1842, Nickle v. Baldwin, 4 W. & S. 290; 1898,
gomery, 1 All. 416; 1873, Somers v. Wright, Hall v. Woolen Co., 187 Pa. 18, 40 Atl. 986,
114 Mass. 174 ; 1875, Field «. Thompson, 119 id. semble (treated as secondary evidence to the con-
151 ; 1887, Kaiser r. Alexander, 144 id. 71, 78, tract's terms) ; 1896, Hazer v. Streich, 92 Wis,
12 N. E. 209; Pa.: 1788, Poultney i: Ross, 1 505, 66 N. W. 720. But this does not forbid
Ball. 238; 1795, Tenbroke y. Johnson, Coxe 288; using the entry to show the delivery of goods,
1819, Juniata Bank w. Brown, 5 S. & R. 231; under a special contract otherwise proved : 1843,
Tenn.: 1872, Black u. Fizer, 66 Tenn. 50; Vt.: Cummlngs i-. Nichols, 13 N. H. 425 ; 1860, Swain
1830, Skinner v. Conant, 2 Vt. 454 ; IVis. : 1903, e. Cheney, 41 id. 236.
Brown v. Warner, 116 Wis. 358, 93 N. W. 17 ' Accord: 1861, Wells v. Hatch, 43 N. H.
(money paid to third persons). Contra: 1899, 248, semble. Contra, semble; 1864, Hale's Ex'rs
Coleman v. Ins. Ass'n, 77 Minn. 31, 79 N. W. v. Ard's Ex'rs, 48 Pa. 22. Books in the foUow-
588 (plaintiff's books of purchases and sales ing occnpations have been ruled on : 1820,
from and to third persons, admitted under Frazier v. Drayton, 2 Nott & McC. 472 (a ferry-
statate to show the amount of stock on hand) ; man ; admitted) ; 1896, Fulton's Estate, 178
1897, Richmond U. P. R. Co. v. K. Co., 95 Va. Pa. 78, 35 Atl. 880 (physician; left undecided).
386,,28 S. E. 573 (to whom credit was furnished; Compare the rulings upon the kind of occupa-
admitted). tion as affected by the principle of regularity,
In general, the transaction must have been post, § 1547. For corporation books, see ante,
with the defendants : 1819, Rogers w. Old, 5 S. §1074.
& R. 408; 1869, Wall tf. Dovey, 60 Pa. 212. ^ Excluded: 1856, Lynch v. Cronan, 6 Gray
Compare the cases cited post, § 1544. 532 (mechanic's lien) ; 1851, Batchelder v. San-
^ 1901, Snow Hardware Co. v. Loveman, 131 born, 22 N. H. 328 (collateral purposes gen-
Ala. 221, 31 So. 19; 1832, Terrill v. Beecher, eralljf) ; 1823, Swing v. Sparks; 2 Halst. 61 (loss
9 Conn. 348; 1870, Hart v. Livingston, 29 la. by injury to property) ; 1811, Wilmer v. Israel)
221 ; 1833, Dunn v. Whitney, 10 Me. 15 ; 1889, 1 Browne Pa. 257 (wharfage dues) ; 1871, God-
Ward's Estate, 73 Mich. 225, 41 N. W. 431 ; ding v. Orcutt, 50 Vt. 56 (sundries).
1900, Collins V. Shaw, 124 id. 474, 83 N. W.
1903
§ 1543 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
generalizations can be made, two may be noticed : (1) Where the item in-
volves so large an amount of goods sold that other evidence of its delivery
must have existed, tlie entry cannot be used ; ^ (2) Where the tr ansac tion is
one not to be encouraged on general grounds of morality or policy, there is no
necessity for helping to the recovery of the charge by admitting the entry.^
But it cannot be said that these applications of the principle are generally
accepted.
§ 1544. Rules not Flexible; Existence of Other Testimony in Specific In-
stance does not exclude Books. The principle of necessity leading to these
limitations naturally suggests the question whether the principle is to be ap-
plied as an open one outside of the above accepted applications, and whether
in those classes it is to be regarded as a fixed rule of thumb or whether the
question of necessity may be raised anew in a given case under its par-
ticular circumstances. The answer to both questions is in the negative ; the
rules are no longer flexible ; in certain classes the entries are once for all ex-
cluded, in others admitted :
1836, Williams, C. J., in Pech v. Ahhe, 11 Conn. 210: " This necessity is not the neces-
sity of the individual case on trial, but of the class of cases to which it belongs. One man
sells a bushel of corn to his neighbor, no other being present ; he charges it on his book ;
and could never recover, unless his book or his oath or both were sufficient evidence.
Necessity, therefore, requires this evidence. Another sells corn to hjs neighbor, sur-
rounded with his family ; of course, the same necessity of his oath or book does not exist.
Still the charge is of the same class with the other, and may be supported in the same
way. . . . The enquiry is not whether the party in that case could not have other testi-
mony, but whether the case itself is of the class or character which will support the
action."
It follows that it is immaterial, in a given case in the admissible classes, that
other witnesses of the transaction are actually available, or that, in a case in
the excluded classes, other witnesses were in fact not available.^ There
are contrary rulings ; ^ but the general judicial attitude seems to be plain.
2 1876, Petit V. Teal, 57 Ga. 145 (rejected for of a guaranty of credit may be received : 1847,
large items, e.g. $50, except where usage au- Ball o. Gates, 12 Mete. 493; 1851, Treraain v.
thorizes, as in bankiug) ; 1882, Carr v. Sellers, Edwards, 7 Gush. 415.
100 Pa. 170 (Mercur, J. : " We will not now des- It has also been ruled that if the \cork was
ignate the maximum sum for which a book may done by a servant of the plaintiff, the entry was
be received in evidence. . . . Much more de- inadmissible; but this wouUl probably not be
pends on the nature and character of the subject followed in other jurisdictions ; 1811, Wright b.
matter of the item, and on the evidence, outside Sliarp, 1 Browne 344 (" It is from necessity that
of the book, which naturally exists to prove the a book of original entries, proved by a plaintiff's
items"); 1872, Winner v. Bauman, 28 Wis. oath, is admitted in evidence at all ; and where
563, 566 (statute applied to exclude large items). the work has been done by a third person, this
' 1897, Frank v. Pennie, 117 Cal. 254, 49 necessity does not exist"); 1840, Lonergiui v.
Pac. 208 (a gambler's " Poker Book" of ac- Whitehead, 10 Watts 249 (entries of delivery of
counts, excluded) ; 1826, Boyd v. Ladson, 4 goods, as performance of prior contract, ex-
McO. 76 (billiard-games; excluded); this case eluded; " the reasons on which the cases cited
probaldy overrules Herlock's Adm'r v. Riser, are ruled do not apply, for there is no necessity
1821, 1 McC. 481 (whiskey sales; admitted). to resort to such proofs, and it is not according
^ 1844, Mathes v. Uobinson, 8 Mete. 271 ; to the usual course of business ; the delivery is
1825, Eastman v. Moulton, 3 N. H. 156 ; 1838, a matter of notoriety, done through the agency
Sickles V. Mather, 20 Wend. 75. of others, and therefore easily proved tliruugh
2 On each occasion the absence of other evi- disinterested witnesses ") ; 1842, Nickle v Hald-
deuce must be sworn to : 1869, Neville d. North- win, 4 W. & S. 290 (same); 1898, ilall v.
cutt, 47 Tenn. 296. lu particular cases, entries Woolen Co., 187 Pa. 18, 40 Atl. 986 (delivery
1901
§§ 1517-1561] EEGULAE ENTRIES. § 1547
Usually, it may be added, this sort of attitude is . to be deprecated ; it re-
sults in deadening and mutilating the living principles of evidence, and
serves no good purpose. But here the general principle itself is a mere
survival, without any living function in the law of evidence ; and there can
be no object in attempting to develop further that which has no reason for
development, and no harm in accepting it, so long as it survives, in its fixed
and traditional limitations.
2. The Circumstantial Guarantee of Trustworthiness.
§ 1546. General Principle; Regularity of Entry in Course of Business. The
general principle which suffices to admit parties' books as fairly trust-
worthy is the same as that recognized for the main Exception for regular
entries. The motives and results by which that principle is supposed to
operate have already been sufficiently considered {ante, § 1522).^ In gen-
eral, it is thought that the regularity of habit, the difficulty of falsification,
and the fair certainty of ultimate detection, give in a sufficient degree a
probability of trustworthiness. The particular element of self-interest and
partisanship that might be supposed to diminish trustworthiness in the
case of a party himself is supposed to be balanced by certain additional re-
quirements here made for this class of books, — for example, the existence
of a reputation for honest bookkeeping, the fair appearance of the books, and
the like.
In applying the general principle of Regularity of Entry, different circum-
stances may come into question, — the kind of occupation, the kind of book,
the kind of item. These circumstances may now be taken in order.
§ 1547. Regularity, as affecting Kind of Occupation or Business. There
can be no definite limitations as to the business or occupation of the entrant.
The Court should decide, for each occupation, whether it involves the regular
keeping of books :
1858, Lumpkin, J., in Ganoid v. Shore, 24 Ga. 17: " We hold that any occupation which
makes it necessary for books to be kept as the record of its transactions, the monuments
of its daily business, — as factories, foundries, forges, gas-works, banks, factorage, no
matter what, — if books are required ex necessitate rei to be kept, these books are to be
let in under the law . . . for the same purpose and to the same extent that a merchant
or .shop-keeper's books are received in evidence ; and that is, to prove those matters which
appertain to the ordinary business of the concern, which require to be charged, and which
in fact constitute its res gestae." ^
Courts have ruled from time to time in the different jurisdictions upon
of large quantities of goods ; bookB rejected ; charges against his adversaries, yet that no one
" Louergan v. Whitehead has been followed is so abandoned as in his cooler moments, with-
ever since it was decided "). out such excitement and in the course of his
^ Compare additionally the following : 1822, daily business, deliberately to contrive and
Kirkpatriek, C. J., in Wilson v. Wilson, 1 Halst. meditate a fraud against his neighbor").
98 ("The credit to which a book of the sort last ^ Accord: 1846, Taylor v. Tucker, 1 Kelly
mentioned is entitled as matter of evidence is 233, per Nisbet, J. ; 1838, Sicliles v. Mather, 20
derived from the presumption that though a Wend. 75 (Cowen, J. : " . . . whether he be a
man in the warmth of controversy or the heat merchant or engaged in any other business ").
of passion, might be disposed to raise up false
1905
§ 1547
EXCEPTIONS TO THE HEARSAY RULE.
[Chap. LI
various occupations.^ In general, a mere casual rendering of services is not
enough ; there must be a regular occupation.^ The principle of Necessity,
it must be noted, may also affect the kind of occupation in which books are
allowed to be used {ante, § 1542). Moreover, statutes have in many instances
(ante, § 1519) expressly defined the kinds of occupation.
§ 1548. Regularity, as affecting the Kind of Book ; Ledger or Daybook.
Any form of book, if regularly kept, is sufficient. A mere individual memo-
randum does not satisfy this principle ; but obviously there may be separate
books for separate classes of transactions, and of these a regularity can be
predicated. It is thus often difficult to distinguish between books which are
properly admissible because, though not comprehensive, they are nevertheless
a complete and regular record of an integral series of transactions, and books
which are inadmissible because they appear to have been kept apart from the
general course of bookkeeping and thus are not likely to be affected by the
considerations {ante, § 1522) that give trustworthiness to the ordinary records
of transactions.!
The fact that the book is kept in ledger-form, with each person's account
separate, or in daybook form, with the items in the actual order of the trans-
actions, is immaterial ; though it may perhaps lessen the credit to be given
to the book.2 But a ledger-book may be open to the independent objection
that it is not the original book, and may on that ground be excluded {post,
* Admitted: 1856, Richardson v. Dorman's,
Ex'x, 28 Ala. 681 (physician; under the Code) ;
Excluded: 1899, Kemick v. Rumery, 69 N. H.
601, 45 Atl. 574 (diary of services performed,
expenses paid, etc., by plaintiff as employee of
defendant s intestate) ; 1790, Speuce v. Sanders,
1 Bav 119 (physician); 1818, Thomas w. Dyott,
1 Nott & McC.'l86 (printer) ; 1901, Bass v. Go-
bert, 113 Ga. 262, 38 S. E. 834 (books of a party
not doing any "regular business"); 1835,
Thayer v. Deen, 2 HiU S. C. 677 (pedlar).
3 1871, Karr c. Stiver.s, 34 la. 127; 1898,
Atkins V. Seeley, 54 Nebr. 688, 74 N. W. 1100
(continuous dealing, etc., not shown); 1839,
Walter v. BcjDman, 8 Watts 544.
1 1901, Thompson v. Ruiz, 134 Cal. 26, 66 Pac.
24 (" private memorandum-book " of money
collections, excluded) ; 1893, Barber's Appeal,
63 Conn. 393, 410, 412, 27 Atl. 973 (ordinary
diary, excluded) ; 1868, Ward v. Leitch, 30 Md.
326, 333 (entries made by one casu.iUy employed
for the purpose and doing it " once a week and
sometimes once a fortnight,'' not admissible;
unsound); 1844, Mathea v. Robinson, 8 Mete.
270 (a time-book of work done by laborers, ad-
mitted) ; 1885, Costello v. CroweU, 139 Mass.
592, 2 N. E. 698 (memorandum-book, excluded) ;
1896, Riley v. Boehm, 167 id. 183, 45 N. E. 84
(small pocket-memorandum-book used for sun-
dry memoranda, held not improperly excluded) ;
1894, Countryman v. Bunker, 101 Mich. 218, 59
N. W. 422 (book not covering all transactions
with the opponent, excluded) ; 1897, Anderson
V. Beeman, 52 Nebr. 387, 72 N. W. 361 (there
must be "a continuous dealing with persons
generally"); 1851, Richardson v.. Emery, 23
N. H. 223 (excluding separate books kept for
different lots of wood sold, thus "not affording
security against interpolations " that a single
book would give); 1896, Fulton's Estate, 178
Pa. 78, 35 Atl. 880 (a separate book from the
regular books, containing charges against one
person only, excluded) ; 1872, Callaway v. Mo-
Millian, 11 Heisk. 557, 560 (entries in a private
memorandum-book, excluded) ; 1886, Barber v.
Bennett, 58 Vt. 483, 4 Atl. 231 (entries of ac-
count upon " a loose strip of paper " found in a
desk, excluded) ; 1893, Gleason i'. Kinney, 65
id. 560, 563, 27 Atl. 208 (entry in a diary, of
money paid, there being a separate book of ac-
counts, admitted; the nature of the item, not of
the book, being material ; this seems erroneous) ;
1896, Re Diggins' Estate, 68 id. 198, 34 Atl. 696
(a small book dealing with a special stock of
goods, admitted) ; 1900, Post ». Kenerson, 72
id. 341, 47 Atl. 1072 (entries held to form a
regular book, on the facts) ; 1896, Hay v. Peter-
son, 6 Wyo. 419, 45 Pac. 1073 (a calendar
containing two entries of payment, excluded,
because not a regular account-book, and because
the entries were not continuous). Compare the
cases cited ante, § 1525.
^ 1806, Coggswell V. Dolliver, 2 Mass. 221
(per SewaU, J. : " though the one method leaves
a greater opening to fraud and falsehood than
the other"); 1860, Swain v. Cheney, 41 N. H.
234; 1861, Wells v. Hatch, 43 id. 248; 1869,
Hoover v. Gehr, 62 Pa. 136; 1850, Toomer ».
Gadsden, 4 Strobh. L. 195. But a general ac-
count drawn np at a later date is Inadmissible :
1808, Prince v. Smith, 4 Mass. 458.
1906
§§ 1517-1561] EEGULAE ENTRIES. § 1549
§ 1558). Finally, the record offered being a collected series of entries, it does
not matter of what material the record is made, nor whether it is a record to
which in ordinary parlance the word " book " would be applied.^
§ 1549. Regularity, as afiecting the Kind of Item or Entry ; Cash Entry.
In the first place, the entry must have been a part of a regular series of entries,
— not, for example, a casual sale of an article not regularly dealt in, nor a
casual entry at the beginning of a blank book or at the end of a book already
finished and laid aside.^ Again, the entry is not usable if it shows that it
embraces in one item a number of separate transactions, or is in any other
way so loosely made that regularity of entry cannot be predicated.^
The question already examined, from the point of view of the principle
of Necessity, namely, whether entries of cash payments are admissible (ante,
§ 1539), is often by some Courts discussed instead from this point of view ;
and here, as before, opinions differ in the application of the principle. The
better opinion is that while as a general rule such entries are not to be
regarded as admissible, yet in particular cases the ordinary course of business
may involve cash entries and they may then be used :
1838, Hitchcock, 3., Cram v. Spear, 8 Hammond 497: "Money lent or paid is not
ordinarily charged upon book. The person lending or paying usually takes a note or
receipt. An individual, it is true, might be engaged in a business that would seem to
justify such charges, and in such case I am not prepared to say that he might not be
examined as a witness."
1859, Stockton, J., in Veiths v. Hagge, 8 la. 187 : " The general rule is clearly estab-
lished by these authorities that a charge for money paid or money lent cannot be proved
by a party's book of accounts, that such transactions are not usually the subject of a
charge in account, and that charges of that nature are not such as are made in the ordi-
nary course of business by one party against another. . . . An individual might be
engaged in business that wrould seem to justify such charges, as where one's ordinary
business may be said to consist in receiving money on deposit and paying it out for
others. . . . This would not, howevei", apply to the case of a party engaged in the mere
business of keeping a retail store, whose customers purchase goods of him on credit,
which are charged to them in a running account. . . . They would not ordinarily expect
to find themselves charged in their accounts with sums of money lent or paid. . . .
Yet if the jury should judge that small money-charges were legitimately made in the
ordinary course of business, we should not be inclined to hold that they might not so
determine." '
' 1846, Taylor w. Tucker, 1 Kelly 231 (slips ». Bohn, 41 Minn. 238, 42 N. W. 1022; 1840,
of paper); 1836, Kendall v. Field, 14 Me. 30 Ba.ssett «. Spofford, U N. H. 267 ; 1825, Sawyer
(shingle). f. Miller, 3 Halst. 139 ; 1794, Dncoign v. Schrep-
1 1825, Beach v. Mills, 5 Conn. 496 (receipt pel, 1 Yeates 347 ; 1882, Carr v. Sellers, 100 Pa.
of rent) ; 1864, Davis v. Sanford, 9 All. 216; 171 ; 1893, Cargill v. Atwood, 18 R. I. 303, 305
1822, Wilson v. Wilson, 1 Halst. 95; 1888, ("lump" charges, excluded); 1818, Lyneh's
Stuckslager w. Noel, 123 Pa. 60, 16 Atl. 94; Adm'rw.Petrie, 1 Nott & McC. 731 ; 1859, . fohn-
1786,Lynch w. M'Hugo, 1 Bay 33; 1835, Thayer son w. Price, 40 Tenn. 549; 1887, Baldridge u.
V. Deen, 2 Hill S. C. 677 ; 1901, Kowan v. Che- Penland, 68 Tex. 441, 4 S. W. 565.
noweth, 49 W. Va. 287,38 S.E. 544 (book made ^Accord: 1902, Harmon u. Decker, 41 Or.
np "several years after the business"). 587, 68 Pac. 11, 1111 (large cash items, held not
2 1842, Winsor v. Dilloway, 4 Mete. 222; provable by the party's books, uuless custom
1849, Henshaw v. Davis, 5 Cush. 146 (three sanctions such entries in a particular business) ;
months' services in one item, excluded) ; 1853, 1893, Cargill v. Atwood, 18 R. I. 303, 304 (ad-
Bustin V. Rogers, 11 id. 346; 1882, Pratt v. missible, provided such transactions formed part
White, 132 Mass. 477 (measure, weight, and of the ordinary course of business),
quantity lacking ; but admitted) ; 1889, Woolsey
1907
§ 1549 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
But the general tendency of Courts is to regard such entries as absolutely
excluded, without any allowance for exceptional cases in special occupa-
tions.* On the same principle, an entry of payment by note given would
seem to be inadmissible.®
§ 1550. Contemporaneousness. Not merely regularity is required ; the
entry must have been fairly contemporaneous with the transaction entered.^
This is another circumstance very properly required as tending to accuracy,
and is similar to the requirement in the general Exception {ante, § 1526) as
to entries by deceased persons. But no unvarying limitation need be fixed ;
the entry must merely hive been made near enough to indicate a likelihood
of accuracy ; and thus each ruling must depend chiefly on the circumstances
of the case :
1834, Sergeant, J., in Jones v. Long, 3 Watts 326 : " The entry need not be made
. exactly at the time of the occurrence ; it suffices if it be within a reasonable time, so
that it may appear to have taken place while the memory of the fact was recent, or the
source from which a knowledge of it was derived, unimpaired. The law fixes no precise
instant when the entry should be made."
1852, Bigelow, J., in Barker v. Haskell, 9 Cush. 221: "The rule does not fix any
precise time within which they must be made. There is no inflexible rule requiring
them to be made on the same day. In this particular, every case must be made to de-
pend upon its own peculiar circumstances, having regard to the situation of the parties,
the kind of business, the mode of conducting it, and the time and manner of making the
entries. Upon questions of this sort much must be left to the judgment and discretion
of the judge who presides at the trial."
§ 1551. Book must bear an Honest Appearance.^ The appearance of the
* Conn.: 1803, Bradley w. Goodyear, 1 Day establish any precise length of time " ; here en-
104; 7a.; 1859, Young v. Jones, 8 la. 222; tries transferred monthly from memoranda at
18.19, Sloan v. Ault, ib. 230; 1859, Snell o. the time of manufacture were admitted) ; 1858,
Eckerson, ib. 284 ; 1892, Security Co. v. Gray- Anderson v. Ames, 6 la. 488 ; 1887, Ramsey v.
beal, 85 id. 543, 546, 52 N. W. 497 (regis- Telephone Co., 49 N. J. L. 325, 8 Atl. 290;
ter of loans) ; 1894, M. S. Bank a. Burson, 90 id. 1818, Curren «. Crawford, 4 S. & E. 3; 1829,
191, 193, 57 N. W. 705; 1894, Shaffer v. Mc- Kessler v. M'Conachy, 1 Rawle 441; 1839,
Cracken, ib. 578, 580, 58 N. W. 910 (payment to V\f alter v. BoUman, 8 "Watts 544; 1865, Years-
attorney) ; N. H. : 1825, Eastman w. Moulton, 3 ley's Appeal, 48 Pa. 535.
N H. 156; 1851, Richardson v. Emery, 23 id. i 1861, Caldwell v. McDermit, 17 Cal. 466
223; N.J.: 1830, Carman v. Dunham, 6 Halst. (excluded, " when suspicious circumstances exist
191 (single entry of cash lent in a regular book upon the face of the entries, and these circum-
of entries containing no other dealings with the stances are not explained by disinterested per-
alleged debtor) ; iV. y..- 1811, Case K. Potter, 8 sons"): 1810, Swift, Evidence, Conn., 81;
John. 212; Pa.: 1898, Fifth Mut. B. Soc. v. 1880, Robinson v. Dibble's Adm'r, 17 Fla. 462;
Holt, 184 Pa. 572, 39 Atl. 293 (entry of cousid- 1899, Harrold v. Smith, 107 Ga. 849, 33 S. E.
oration received) ; Tex. : 1852, Cole v. Deal, 8 640 (unfastened portion of a book, with leaves
Tex. 349; 1872, Kotwitz v. Wright, 37 Id. 83. mutilated or missing, excluded); 1896. Guiher-
Compare the cases cited ante, § 1539. less v. Riplev, 98 la. 290, 67 N. W. 109 ; 1806,
» 1 899, Estes U.Jackson, — Ky. — , 53 S. W. Cogswell w. DoUiver, 2 Mass. 221, per Sewall,
271 (entry that an account was settled bv note, J.; 1844, Mathes ». Robinson, 8 Mete. 270;
excluded). Contra: 1898, Borgess Inv."Co. v. 1882, Pratt v. White, 1,32 Mass. 477; 1878,
Vette, 142 Mo. 560, 44 S. W. 754 (admitting Robinson v. Hoyt, 39 Mich. 405 (entries all on
an entry of a note secured by deed of trust). the last page of a book having many pages
^ 1899, Lane v. M. & T. Hardware Co., 121 blank and manv torn out, held " in.sufficient " for
Ala. 296, 25 So. 809; 1895, St. Louis, I. M. & S. proof) ; 1896, Levine v. Ins. Co., 66 Minn. 138,
E. Co. !•. Murphv, 60 Ark. 333, 30 S. W. 419; 68 N. W. 855; 1825, Eastman v. Moulton, 3
1860, Landis v. Turner, 14 Cal. 575 (admitted, N. H. 156; 1863, Funk v. Ely, 45 Pa. 444, 448
where the transfer from a slate to the book was (" The Court examines it to see if it appears
made irregularly, but generally in from one to prima facie to be what it purports to be. If
three days afterwards) ; 1881, Redlick v. Bauer- there are erasures and interlineations, and false
lee, 98 111. 134, 138 (" the authorities do not or impossible dates, touching points that are
1908
§§ 1517-1561]
KEGULAR ENTRIES.
§ 1554
book of entries must be honest; no suspicion of false dealing must be
apparent. But the trial Court's determination of this ought to be final.^
§ 1552. Reputation of Correct and Honest Bookkeeping. The tradition
requires also that preliminary testimony be offered as to the good reputation
of the party for correct and honest accounting.^ Whether this would always
be required is in some jurisdictions doubtful to-day, apart from express
statute.^
3. Testimonial Qualifications, and Other Independent Rules of Evidence.
§ 1554. Party's Suppletory Oath; Cross-examination of Party; Use of
Books by or against Surviving Party. (1) Since the preliminary facts
rendering evidence admissible must of course always be proved somehow in
advance of its admission, the identity and character of parties' books, as
fulfilling the foregoing conditions, must first be shown. But if the books
were, by hypothesis, kept by the party himself, and without a clerk, it is
obvious that they cannot be satisfactorily shown to be his books without
calling in the aid of his own testimony. By very necessity, therefore, and
for the purpose of identifying the books, the party, though otherwise dis-
qualified (under the older law) as a witness, was allowed ^ to make a so-called
suppletory oath of identification.^ Moreover, this oath, by way of precaution,
material, or if for any reason it clearly appears
not to be a legal book of entries, the Court may
reject it "). But a mere error need not exclude :
1866, Schettler v. Jones, 20 Wis. 412, 415
(entries charged against a person not the oppo-
nent are admissible "if such mistake is fairly
and satisfactorily explained by other competent
evidence").
2 1806, Cogswell V. Colli ver, 2 Mass. 223
(Sedgwick, J. : " The true ground ... is that
the judge or court before whom the case is
tried, should on inspection, determine that the
book was proper for that purpose, and that
such determination renders it competent evi-
dence. ... To suffer our inquiries to go behind
that decision would be throwing things into too
loose a state ") .
^ The precise tenor of this requirement varies ;
some Courts hold that the proof must be by
persons who liave settled with the party, and
that, too, directly upon his books ; Ark. : 1898,
Atkinson v. Burt, 65 Ark. 316, 46 S. W. 986, 53
S. W. 404 (must be showu correctly and con-
temporaneously kept) ; 1895, St. Louis, I. M. &
S. R. Co. V. Murphy, 60 id. 333, 30 S. W. 419 ;
Cal.: 1860, Landis i). Turner, 14 Cal. 576 ; 1886,
Watrous (J. Cunningham, 71 id. 32, 11 Pac. 811;
1894, Webster v. Lumber Co., 101 id. 326, 329,
35 Pac. 871 (absconding of the party's book-
keeper, who had falsified the books to defraud
him, not sufficient to exclude) ; ///. ; 1841,
Boyer v. Sweet, 3 Scam. 122 ; 1869, Huggles v.
Gatton, 50 111. 416 ; 1876, Patrick i>. Jack, 82 id.
82; 1892, House w. Beak, 141 id. 290, 299, 30
N. E. 1065 (held here not essential, where the
opponent liad admitted tlie correctness of the
accoxmt)\-Mich.: 1860, Jackson v. Evans, 8
Mich. 476, 487 (the rule is " to require evidence
of the correctness and fairness of the books
offered, founded on information gained by an
actual inspection of and settlement by them,"
and not merely of " the character of the party
whose books they are"); 1893, Seventh D. A.
P. A. V. Fisher, 95 id. 274, 276, 54 N. W. 759
(may be shown by himself, without calling
others); N. Y.: 1815, Vosburgh v. Thayer, 12
John. 461 ; 1834, Linnell v. Sutherland, 18
Wend. 568 ; 1855, Morrill v. Whitehead, 4 E. D.
Smith 241 ; 1882, McGoldrick v. Traphagen, 88
N. Y. 334, 336 (proof by .several witnesses testi-
fying to settlement by bills, and by another
witness to settlement by the books themselves,
held sufficient, the last witness being the book-
keeper of the party himself; two judges diss.) ;
1900, Smith v. Smith, 163 id. 168, 67 N. E. 300;
Tex.: 1868, Werbiskie v. McManus, 31 Tex.
116,124 (proof required that "his reputation
as an honest man and correct bookkeeper is
untarnished").
" 1888, Montague v. Dougan, 68 Mich. 98,
100, 35 N. W. 840 (proof by other persons, held
not necessary " since the statute allows parties
to testify generally in the case "). This amounts
to no more than a verification of correctness on
oath {post, § 1554).
"■ Except in New York and New Jersey,
where perhaps the Dutch tradition (an«e, § 1518)
accounts for the omission: 1838, Sickles v.
Mather, 20 Wend. 75 ; 1859, Conklin v. Stamler,
8 Abb. Pr. 395.
^ 1824, 3 Bane's Abr., Mass., Hutchinson's
ed., 318; 1860, Landis v. Turner, 14 Cal. 573;
1886, Roche V. Ware, 71 id. 379, 12 Pac. 284;
1869, Neville v. Northcutt, 47 Tenn. 296; 1872,
Marsh v. Case, 30 Wis. 531.
1909
§ 1554 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
was made to involve an assertion that the books were correctly kept, and
from this point of view the oath was not only allowed but required; it could
only be dispensed with where the party was dead, or insane, or out of the
jurisdictiou.^ In many of the statutes (ante, § 1519) that have dealt with
the subject, this suppletory oath is still retained as a requirement.
(2) As a necessary concession to the allowance of the suppletory oath, it
was thought proper in a few jurisdictions by statute to allow a cross-exami-
nation of the party upon the transactions represented in the entries.*
(3) The modern statutory exception to a party's qualification, namely,
the exclusion of a survivor from testifying to a transaction vnth a deceased
opponent (ante, § 578) is commonly not thought to apply to the use of a
party's books of account under the present Exception, for reasons elsewhere
explained (post, §'1559). It follows that the surviving party may offer his
books as against a deceased opponent ; ^ and also that the use of a deceased
party's books by his representative is not such a "testifying" by the repre-
sentative as amounts to a waiver under the statute and permits the surviving
opponent to take the stand against them.^
§ 1555. Personal Knowledge of Entrant ; Party and Salesman verifying
jointly. The use of a party's entries, like that of all the Hearsay exceptions,
must be subject to the ordinary principles of testimonial qualifications (ante,
§ 1424). When the party is the entrant, then, he must have the elementary
qualification, a personal knowledge of the transaction recorded (ante, § 657).
This he would ordinarily have, in the situations for which the exception was
peculiarly adapted and to which he is restricted in the ways just noticed.
But it will often happen, even where the party is his own bookkeeper, that
the goods are delivered or the services rendered by salesmen or workmen in
his employ, and that thus the party, though the recorder, has no personal'
knowledge of the consummation of the transaction. This situation can be
met in the way already examined (ante, § 751), in cases where a witness on
the stand swears to the accuracy of a record but has no knowledge of the
transaction recorded ; i. e., by calling the other person, whose knowledge
thus supplies the missing element and completes the testimony. This is a
proceeding which, though correct on principle, has only with difficulty ob-
' See post, § 1561. purposes." e. g. to prove to whom credit was
* In addition to the statutes, anfe, § 1519, see giveu); 1862, Green v. Gould, 3 id. 465, 467
the following rulings: 1875, New Haven & H. (similar principles) ; 1893, Cargill «. Atwood, 18
Co. W.Goodwin, 42 Coun. 2.31; 1857, Betts c. R.I. 303, 304. Contra: 1899, Nance w. Calleu-
Stevens, 6 Wis. 400 (uo questions are to be der, — Tenn. — ,51 S. W. 1025; 1893, Wy-
asked the party except those authorized by the man v. Wilcox, 66 Vt. 26, 30, 28 Atl. 321
statute). In South Carolina the rulings varied: (plaintifE's entries made after decease of oppo-
1786, Foster v. Sinkler, 1 Bay 40 ; 1790, Spence nent's intestate, excluded).
V. Sanders, ib. 117; Douglass v. Hart, 4 Mc- 6 1370, Kelton w. Hill, 58 Me. 116; 1889,
Cord 257; 1850, Thomson v. Porter, 4 Strobh. Sheehan v. Hennessey, 65 N. H. 101, 18 Atl.
Eq. 65. 652; 1895, Stevens v. Moulton, 68 id. 254, 38
» 1886, Roche c. Ware, 71 Cal. 37S, 12 Pac. Atl. 732 (since the amendment of 1889, there
284, semble ; 1901, Haines v. Christie, 28 Colo. is still no "election" to testify where an ad-
502, 66 Pac. 883 ; 1902, Chapin v. Mitchell, — ministrator offers and identifies the deceased's
ria. — , 32 So. 875; 1894, Dysart v. Furrow, account-books).
90 la. 59, .57 N. W. 644; 1867, Anthony v. As already stated (ante, § 578), there is liere
Stinson, 4 Kan. 220; 1861, Dexter v. Booth, 2 no attempt to collect fully the rulings inter-
All. 559, 561 (but not admissible "for other preting this particular class of statutes.
1910
§§ 1517-1561]
REGULAE ENTEIES.
§ 1556
tained recognition in the case of ordinary memoranda of a past recollection
{ante, § 751). But, long before that recognition, it was perceived and
adopted in the case of parties' entries. Where, then, the party has made the
record but has not personal knowledge of the delivery of the goods or the
rendering of the services charged, he may call the person having knowledge
and use the latter's supplementary testimony.^ If the salesman or teamster
is deceased, or otherwise unavailable, or if the party is, or if both are, or if
the conditions of the business make it impolitic to require the calling of
every person concerned, still this need not prevent the use of the entry-
book. The reasons for this conclusion have already been examined in con-
sidering the same problem for the main Exception for Eegular Entries {ante,
§ 1530); here, as there, the rulings are not harmonious.^
§ 1556. rorm and Language of the Entry; Absence of Entry. The general
principles already examined {ante, §§ 766-812) as to the mode of testimonial
communication, or narration, have here also a certain application. First, the
entry must purport to record the whole of the transaction as alleged ; in other
words, a mere order-hook or an entry of an order, not showing the delivery of
the alleged goods or the rendering of the alleged services, could not be
1 1S57, Harwood v. Mulry, 8 Gray 250 (one
partner delivered the goods, the other made the
charge in the hooks ; Dewey, J. : " It is proper to
introduce as witnesses all those persons who are
thus connected with the transaction and whose
testimony is necessary to estahlish those facts
which would require to be proved by a single
person"). Accord: 1880, Smith v. Law, 47
Conn. 431, 435 (entries made by the plaintiff's
bookkeeper on report by a salesman, the sales-
man also testifying) ; 1892, House v. Beak, 141
111. 290, 299, 30 N. E. 1065 (entries hy H., on
reports of sales, etc., by B., H. and B. testifying) ;
1902, Place v. Baugher, 159 lud. 232, 64 N. E.
852 (books of log-measurement, kept by plain-
tiff, the measurements being made by plaintiff
and M, and both testifying thereto); 1831,
Smith V. Sanford, 12 Pick. 140 (one partner
sold and made a note, the other entered ; both
testified) ; 1900, Smith v. Smith, 163 N. Y. 168,
57 N. E. 300 (husband-party making deliveries,
wife entering from his memoranda, and both
testifying) ; 1823, Ingraliam v. Bockius, 9 S. &
R. 285 (clerk delivered and party entered; both
testified); 1831, Clough v. Little, 3 Rich. L.
353 (same) ; 1850, Thomson i>. Porter, Strohh.
Eq. 65 (same); 1892, Taylor v. Davis, 82 Wis.
455, 459, 52 N. W. 756 (shipping-book of lum-
ber, entered by the bookkeeper from scale-bills
handed to him, the bookkeeper and the scaler
testifying).
2 1844, Mathes v. Robinson, 8 Mete. 269
(time-book kept by plaintiff for labor of himself
and apprentice ; held not necessary to call the
apprentice) ; 1849, Morris v. Briggs, 3 Cnsh.
343 (workmen made memoranda and plaintiff
copied them into the book; workmen not re-
quired to be called) ; 1852, Barker y. Haskell,
9 id. 218 (plaintiffs, partners, made entries of
work done by workmen; plaintiffs both gave
the suppletory oath ; workmen not required to
be called; 1887, Miller v. Shay, 145 Mass. 162,
13 N. E. 468 (plaintiff kept a book of loads of
sand delivered ; teamster and plaintiff testify
to items; said obiter that the teamster's testi-
mony was " necessary") ; 1860, Jackson v. Evans,
8 Mich. 476, 484 (entries of brick delivered,
made by the party on reports from a foreman-
teamster, the foreman-teamster who tallied the
loading, being called, but not all the individual
teamsters who hauled ; held, that on the facts
all the teamsters should be called or accounted
for) ; 1901, Taylor-Woolfenden Co. v. Atkinson,
127 id. 633, 87"N. W. 89 (ledger made up from
sale slips ; admitted on certain conditions) ; 1 903,
Union Central L. Ins. Co. v. Prigge, — Minn.
— , 96 N. W. 917 (plaintiffs' entries baiied on
memoranda furnished by the defendant, ex-
clnded; probably erroneous); 1892, Anchor
Milling Co. v. Walsh, 108 Mo. 284, 18 S. W.
904 (plaintiff's manager kept a shipping-book,
in which most of the entries of deliveries were
made on the knowledge of a shipping-clerk ;
the clerk had left the plaintiff's employment
and was not called ; admitted) ; 1901, Di'ament
V. CoUoty, 66 N. J. L. 295, 49 Atl. 455, 808
(books founded on slips containing reports from
workmen, admitted, together with the slips, ap-
parently without calling the workmen); 1834,
Jones V. Long, 3 Watts 326 (like Morris v.
Briggs, Mass.); 1897, Union Electric Co. v.
Theatre Co., 18 Wash. 213, 51 Pac. 366 (books
of an electric light company, recording the
light furnished a theatre, made up from news-
paper reports of number of performances per
week and from collectors' reports, excluded) ;
1862, Lyncli v. State, 15 Wis. 40, 44 (certain
voluminous accounts, testified to by the book-
keeper and a party, who had personal knowl-
edge of most of the transactions, admitted).
1911
§ 1556
exceptiojSts to the hearsay rtjle.
[Chap. LI
received.^ Next, as to the mode of recording, any material or means will
suJEfice.2 Tjjg entry must, however, be fairly intelligible ; it must distinctly
communicate the fact alleged ; this requirement being satisfied, any kind of
marks, capable of being interpreted, will suffice.^
The absence of a debit-entry, in a book containing both debits and credits,
should be regarded as in effect a statement that no such goods or services had
been received, and should therefore be admissible ; * but some Courts, as also
under the main Exception (ante, § 1531), take the opposite view.^ Where
however, the book is offered by the opponent {post, § 1557), the absence of an
entry of the transaction as claimed may properly be regarded as an admission
that there was no such transaction {ante, § 1072).
§ 1557. Impeaching the Book ; Opponent's TTse of the Book as containing
Admissions. (1) The party's book being virtually his testimonial assertions
{ante, § 1361), the rules for impeaching testimonial evidence {ante, §§ 875-
1087), so far as applicable, may be invoked. Th particular, the party's
general character for veracity {ante, § 920) may be impeached ; ^ and the
untrustworthiness of the book may be evidenced by demonstrating specific
errors {ante, § 1000) in the entries.^
(2) A party's own statements may always be used against him as admissions
{ante, § 1048) ; hence the opponent may always offer the party's books as
containing admissions favoring the opponent's claim of facts.^ In such a
^ 1882, Hancock v. Hintrager, 60 la. 376,
U N. W. 725 ; 1834, Rhoads v. Gaul, 4 Eawle
467 ; 1835, Fairchild v. Dennison, 4 Watts 258 ;
1841, Parker v. Donaldson, 2 W. & S. 19 ; 1882,
Laird v. Campbell, 100 Pa. 165. This rests
perhaps equally on the principle of § 1541, ante.
The price need not be entered : 1835, Jones v.
Orton, 65 Wis. 9, 14, 12 N. W. 172.
^ That the entry need not be on paper or
with ink has been noticed ante, § 1548.
3 1865, Barton v. Dundas, 24 U. C. Q. B. 275 ;
1887, Miller V. Shay, 145 Mass. 162, 13 N. E.
468; 1843, Cummings v. Nichols, 13 N. H. 425;
1872, Marsh v. Case, 30 Wis. 531.
* 1893, Peck v. Pierce, 63 Conn. 310, 314, 28
Atl. 524 (issue as to payment of interest on note ;
deceased's book contained entries of interest-
payments to others, though not all; lack of
entry of payment to P., admissible) ; 1903, Volu-
sia Co. Bank v. Bigelow, — Fla. — , 33 So.
704; 1901, Waldron v. Priest, 96 Me. 36, 51
Atl. 235; 1902, Huebener u. Childs, 180 Mass.
483, 62 N. E. 729 (passbook and ledger admit-
ted, to show no receipt of cash ; " not every
book of entries, if admitted, would lead to any
inference from the omission of a matter; but
we mast assume that this hook on inspection
manifestly purported to contain all C.'s receipts,
and if so it was a declaration by him, only less
definite than if expressed in words, that he had
received no other sums " ; this book was admit-
ted without specific reference to the present
Hearsay exception).
» 1893, Shaffer v. McCracken, 90 la. 578,
580, 58 N. W. 910 (negative not to be proved by
lack of entry in one book only out of several) ;
1874, Lawhoru v. Carter, 11 Bush 10; 1855,
1912
Morse o. Potter, 4 Gray 292 ; 1896, Riley u.
Boehm, 167 Mass. 183, 45 N. E. 84 ; 1852, Alex-
ander V. Smoot, 13 Ired. 462; 1901, Scott u.
Bailey, 73 Vt. 49, 50 Atl. 557.
1 1823, Grouse v. Miller, 10 S. & R. 155, 158
(" his character was open to the same kind of
animadversion that it would have been subject
to if he had been a witness in the cause " ) ;
1863, Funk v. Ely, 45 Pa. 444, 448 (" the plain-
tiff who swears to his original book of entries
puts his general character for truth and veracity,
and the general character of his book for hon-
esty and accuracy, in evidence, and invites attack
upon either or both"). Contra: 1853, Winne
V. Nickerson, 1 Wis. 1, 6 (impeachment of the
party's character "for truth and veracity," held
proper at common law ; but the statute making
them "prima facie " evidence held to forTjid
this ; absurd) ; 1 854, Nickerson v. Morin, 3 id.
243 (foregoing case approved) ; 1872, Winner v.
Bauman, 28 id. 563, 567 (same).
2 1863, Funk v. Ely, 45 Pa. 444, 448 (" It is
competent for the adverse party to show its [the
book's] general character b}' pointing to charges
and entries aflfecting other parties, and by call-
ing witnesses to prove such entries false and
fraudulent. That this investigation may not
run into excessive departure from the issue on
trial, the C;ourt should limit it to the time, or
near the time, covered by the account in suit,
and should suffer no more examination of col-
lateral cases than would bear directly on the
general character of the book").
' 1899, Zang v. Wyant, 25 Colo. 551, 56 Pac.
565 (bank's account-books) ; 1902, Whisler v.
Whisler, 117 la. 712, 89 N. W. 1110 (partition
between heirs and devisees ; ancestor's book-
1517-1561]
EEGULAR ENTEIES.
§ 1558
case, none of the foregoing limitations as to the kind of book or entry stand
in the way ; for the book is not offered under the present exception.*
§ 1558. Production of Original Book ; Ledger and Day-book. The general
rule requiring the production of the original of a writing {ante, § 1179), here
as elsewhere, must be satisfied ; i. e. the entry offered must be an original ;
if the original cannot be had, as determined by the ordinary rules {ante,
§§ 1192-1230), a copy may be used.i
It therefore becomes necessary to distinguish between the different pro-
cesses and the different classes of boolcs employed in bookkeeping, in order
to determine whether the one offered is or is not the first and original book
of regular entries. A ledger, though otherwise not objectionable {ante,
§ 1548), will usually not be the first book entered up; nevertheless, if the
first book be in fact kept in ledger form, it will be none the less admissible.
Furthermore, the record admissible is one consisting of a regular series {ante,
§ 1548) ; hence, the first regular and collected record is the original one, and
it is immaterial that it was made up from casual or scattered memoranda
preceding it. The application of the principle must depend much on the
circumstances of the particular case.^
entries of advancements) ; La. Rev. Civ. C. 1888,
§ 2248 ; 1868, Ward v. Leitch, 30 Md. 326, 333 ;
1902, Glote Savings Bank v. Nat'l Bank, 64
Nehr. 413, 89 N. W. 1030 ; 1903, Gross v. Scheel,
— id. — , 93 N. W.418; 1893, Doolittle v.
Stone, 136. N. Y. 613, 616, 32 N. E. 639.
* Compare some of the cases cited nnder
Admissions, ante, §§ 1060, 1072, 1073, 1074 (cor-
poration or partnership books), 1082 (prede-
cessor in title). Whether the whole of an account
may or must be offered is dealt with under
Completeness {post, §§2104, 2118).
1 1898, First N. Bank v. Chaffin, 118 Ala.
246, 24 So. 80 ; 1879, Peck v. Parchen, .52 la. 46,
2 N. W. 597 (copy attached to a deposition, ex-
cluded) ; 1848, Smiley v. Dewey, 17 Oh. 156;
1831, Furman v. Peay, 2 Bail. 394; 1887, Bal-
dridge v. Penland, 68 Tex. 441, 4 S. W. 565 ;
1845, Downer v. Morrison, 2 Gratt. 250, 256
(books in New York, proved by copy annexed
to a deposition). Undecided: 1 882, Hancock w.
Hintrager, 60 la. 376, 14 N. W. 725. Not clear:
1876, Woodbury v. Woodbury's Estate, 50 Vt.
156. Contra, hut clearly wrong : 1807, Cooper
V. Morrel, 4 Yeates 341 (original in England ;
copy excluded).
The party's /aiVure to produce his book, when
it would be relevant, may justify an inference :
1860, Harrison v. Doyle, 11 Wis. 283, 285, and
cases cited ante, § 291.
2 Admitleil: 1896, Plummerii. Mercantile Co.,
23 Colo. 190, 47 Pac 294 (entries made in pencil
on sheets of paper, then copied into a book) ;
1881, Kedlich 0. Bauerlee, 98 111. 134, 138 (en-
tries trausferred from a slate to the book ; the
book held an original) ; 1816, Faxon r. HoUis,
13 Mass 427 (envies made on a slate and tran-
scribed into a ledger) ; 1831, Smith i-'. Sandford,
12 Pick. 140 (chalking sales on a butcher-cart
and then entering them on the book when the
cart returned) ; 1852, Barker v. Haskell, 9 Cush.
218 (entries on a slate, copied into a day-book) ;
1854, Kent v. Garvin, 1 Gray 148 (entries from
a drayman's book into an account-book) ; 1887,
Miller a.'SHay, 145 Mass. 162, 13 N. E. 468
(transferred to the bodk from marks on a sand-
cart) ; 1860, Jackson u. Evans, 8 Mich. 476, 482
(accountbook of brick delivered, made up from
a tally-book or slate) ; 1896, Levine v. Ins. Co.,
66 Minn. 138, 68 N. W. 855 (books founded on
temporary slips furnished by salesmen); 1853,
Winne v. Nickerson, 1 Wis. 1', 5 (there being
two books of original entries, only one was re-
quired to be produced, on the facts).
Excluded: 1881, Fitzgerald v. M'Carty, 55 la.
702, 8 N. W. 646 (ledger not admitted to show
a single item not entered in the original books ;
but the Court declared it allowable for counsel
to use the ledger in aiding the jury " the more
readily to find the items charged in the account
in the books of original entry "); 1895, Wav v.
Cross, 95 id. 258, 63 N. W. 683 (a ledger not
showing the kind of goods sold, and made up di-
rectly from sale-slips) ; 1854, Bieinig v. Metzler,
23 Pa. 159 (a journal copied from a blotter).
Further illustrations are as follows : 1861,
Caulfield (;. Sanders, 17 Cal. 569, 573; 1874,
Bentley v. Ward, 116 Mass. 337; 1889, Woolsey
V. Bohn, 41 Minn. 239, 42 N. W. 1022 ; 1856,
Pillsbury v. Locke, 33 N. H. 96; 1887^ Rumsey
V. Telephone Co , 49 N. J. L. 325, 8 Atl. 290 ;
1838, Sickles v. Mather, 20 Wend. 76 ; 1882,
McGoldrick i: Traphagpn, 88 N. Y. 3.H, 336;
1823, Ingraham v. Bockms, 9 S. & R. 285 ; 1834,
Patton !'. Hyan, 4 Rawle410; 1836, Forsythe
V. Noi-cross, 5 Watts 432 ; 1869, Hoover v, Gehr,
62 Fa. 136. In Prince v. Swett, 2 Mass. 569,
(1793) and Bonnell v. Mawha, 22 N. J. L. 198
(1874), the anomalous ruling was made that the
ledger or copy-entries also must be produced, if
the entries had been posted into it from another
book.
1913
§ 1559 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LI
4. Present Exception as affected by Parties' Statutory Competency.
§ 1559. Theory of Use of Parties' Books as Hearsay. That there is in
modern times a new adjustment to be made arises from the fact that the
party, being formerly disqualified and unavailable as a witness, and allowed
only by the necessity of the case to use his extrajudicial or hearsay entries
(ante, § 1537), has now everywhere been made competent by statute ; so that
the change of the law has removed the necessity for using such hearsay
statements and has taken away the reason of the Exception. The question
arises how far this result has been recognized by the Courts since the change
of the law, and what its effects are with regard to the mode of using parties'
entries.
In ascertaining this, it is necessary to keep in mind the extent to which,
under the original practice, the entry was treated as hearsay. That it was
so treated has already been noticed (ante, § 1537) and appears throughout
the general tenor of this branch of the Exception. The consequences of this
attitude were strictly followed out. If the party did not appear on the stand
as a witness, if the entries are merely extrajudicial, hearsay statements, it
followed that none of the consequences attached to a party's taking the stand
could be enforced against him. This theory was so firmly implanted that
when the statutes, which made parties competent, left a surviving party in-
competent against a deceased opponent (ante, § 578), the use of parties'
account-books was still not considered as a " testifying," within the statute ;
so that (as generally held) the surviving party's use of his books was not for-
bidden, on the one hand, and, on the other hand, the executor's use of the de-
ceased opponent's books was not a testifying which amounted to a waiver
and qualified the surviving party to take the stand (ante, § 1554). This re-
sult may well be questioned ; but at least it shows the nature of the earlier
theory.
Again, the suppletory or verifying oath of the party (ante, § 1554), by
which he took the stand for the purpose of identifying the books and swear-
ing that they contained true and just accounts, was expressly declared not
to make the party a witness. It was treated as only a preliminary guarantee
required as a matter of caution ; and in effect it merely related back to the
time of the entries and showed them to be proper for admission. His entries
in the book, moreover, taken as made at a past time, were not entries made
as a party ; for he was not a party when he made them ; and they thus could
not be treated as tainted with his interest. Whatever may be thought to-
day of the real effect of such an oath as incorporating the books into the
party's infra-judicial statement and making them infra -judicial testimony, the
Courts at any rate refused to take this view and accepted them as extra-
judicial statements.^
^ 1844, Little!). Wyatt, 14 N. 11. 26 : "It is the witness who testifies to facts and then appeals
book wliich is the evidence, and the party testi- to his book in corroboration of his story ; but
fies in chief only to verify it. The party is not a the book is the source of information."
1914
§§ 1517-1561] EEGULAR EKTEIES. § 1660
The subjection to cross-examination {ante, § 1554) was a real inroad on the
theory that the party was not a witness in his books ; but it was made in a
few States only, and by statute ; and the fundamental theory was maintained
as far as possible, for the liability of the party to cross-examination extended
only to matters connected with the entries.
§ 1560. statutory Competency as Abolishing the Necessity for Parties'
Books; Using the Books to aid Recollection. Such being the consistent
attitude of the Courts — that the books were used as hearsay or extrajudi-
cial statements, and that the party did not take the stand as a witness — ,
how far is this branch of the Exception affected by the statutory abolition
of a party's disqualification to take the stand ? What has occurred is that
the necessity for using his hearsay or extrajudicial statements in his books
has been removed ; he is free to relate as a witness all his knowledge on the
subject of the transaction. Thus, the necessity having ceased, the whole
basis of the Exception falls. There is now no excuse for offering his extra-
judicial entries, not tested by cross-examination, while his infra-judicial testi-
mony, given under oath and subject to cross-examination, is available.
This does not mean that the party cannot use his entries at all. As a re-
corded past recollection {ante, § 745) he may swear to the accuracy of the
book and use it to the fullest extent, incorporating it with his testimony and
handing it to the jury as a part thereof {ante, § 754). The entries are no
longer hearsay ; they are adopted by the witness on the stand, and he is
subjected to full cross-examination on that as on all other parts of his tes-
timony. At the present day, then, the correct view is that the Hearsay
exception in favor of parties' entries has disappeared with the parties' incom-
petency, and that the party uses them, if at all, as records of a past recol-
lection adopted on the stand. A few Courts have recognized this result
explicitly ; others have ruled more or less in harmony with it :
1859, Daly, J., in Conklin v. Stamler, 8 Abb. Pr. 400: " The important change recently
made iu the law of this State, by which a party may testify the same as any other wit-
ness, has obviated the difficulty that was supposed to exist when the rule was made, and
there is now no occasion for resorting to the books, unless it may be to refresh the party's
memory as to the items, or in cases where there is a failure of recollection. In the latter
case the books, if they contained the original entries of the transaction, would still, I
apprehend, be evidence within the rule recognized in Merrill v. I. & O. R. Co.,i — that is,
if the party who made the entries has entirely forgotten the facts which he recorded, but
can swear that he would not have entered them if he had not known them at the time to
be true, and that he believes them to be correct."
1875, Per Curiam, in Nichols v. Haynes, 78 Pa. 176 : " Questions relating to books
of entry as evidence, since the Act of 1869 making parties witnesses, stand upon a differ-
ent footing from that on which they stood before. . . . The party now stands by force of
the act on the same plane of competency as the stranger stood upon, and therefore may
make the same proof as a stranger could."
1898, Harrison, J., in BmhnellY. Simpson, 119 Cal. 658, 51 Pac. 1080: "At the time
when parties to an action were not competent witnesses in their own behalf, their books
of account were admitted in evidence, upon a proper showing of the mode in which they
1 16 Wend. 586 ; cited ante, § 736.
VOL. II. — 58 1915
§ 1560 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LI
had been kept, and were treated as original evidence of the matters for which they were
introduced ; but, since parties have been allowed to testify concerning all the facts for
which the books were formerly offered, their testimony in reference thereto constitutes
primary evidence of these facts, and the books of account become merely secondary or
supplementary evidence. The books are not excluded as incompetent, but will be received,
either in corroboration of the testimony of the parties as entries made at the time, or
upon the principles by which inferior evidence is received where the party is unable to
produce evidence of a higher degree."
In several other Courts the tendency seems to be to put the use of such
books on their natural footing of records of past recollections.^ Yet the, ex-
istence of statutes expressly sanctioning the use of parties' books (although
these statutes in the older States were enacted before parties' incompetency
was abolished) naturally renders it more difficult to reach the conclusion
that the Hearsay exception covered by these statutes is abolished by impli-
cation from other statutes.
The important circumstance, however, is that whether or not the use of the
books under the Hearsay exception is abolished, at any rate their use by the
party as memoranda of recollection in connection with his testimony is now
at his option, and that, when used from that point of view, the books would
be subject to none of the restrictions of the present Exception {ante, §§ 1537—
1552) regarding clerks, cash payments, credit guaranties, special contracts,
kind of occupation, size of item, regularity of entries, reputation of correct
bookkeeping, and the like. A survey of those restrictions seems to leave it
certain that in no single respect is any advantage to be gained by using the
book under the present Exception. Even when the book satisfies all these
limitations, there appears to be no contingency in which the entry could be
used under this branch of the Exception and yet could not also be used by
* The following decisions treat the use of 29 (bank-books of plaintiff admitted, following
parties' entries from the point of view of rec- the preceding case) ; 1897, Walsher v. Wear,
ords of past recollection, usually without com- 141 id! 443, 42 S. W. 928 (books by G., a cou-
plete recognition of the abolition of their use in tractor guaranteed by the defendant, receivable
the old manner: Ala.: 1880j Dismukes !■. Tol- from the defendant ; following Anchor Milling
son, 67 Ala. 386; 1886, Hancock v. Kelly, 81 Co. v. Walsh) ; 1898, Borgess Inv. Co v Vette,
id. 378, 2 So. 281; 1892, Boiling u. Fanniu, 97 142 id. 560, 44 S. W. 754; Nebr.: 1892, St.
id. 619, 621, 12 So. 59; Cal.: 1886, Roche v. Paul, F. & M. I. Co. v. Gotthelf, 35 Nebr. 351,
Ware, 71 Cal. 378, 12 Pac. 284, semhle; 1898, 356, .53 N. W. 137; N. H.: 1860, Swain v.
Bushnell v. Simpson, 119 id. 658, 51 Pac. 1080 Cheney, 41 N. H. 237 ; 1855, Putnam v. Goodall,
(action for salary and expenses as president of a 31 id. 425 ; 1883, Pinkham v. Henton, 62 id.
corporation; plaintiff's books of account ex- 690;iV. J". .- 1887, Rumsey w. Telephone Co., 49
eluded as parties' books) ; but compare White N. J. L. 326, 8 Atl. 290 ; N. M.: 1885, Price v.
V. Whitney, 1889, 82 id. 166, 22 Pac. 1138; Garland, 3 N. M. 505,6 Pac. 472; Pa.: 1888,
Conn.: 1 896, Plumb t'. Curtis, 66 Conn. 154, 33 Stuckslager «. Neel, 123 Pa. 61, 16 Atl. 94;
Atl. 998; ///..■ 1875, Wolcott v. Heath, 78 111. Wis.: 1866, Schettler v. Jones, 20 Wis. 412,
434; Mass.: 1875, Field v. Thompson, 119 416; 1869, Riggs k. Weise, 24 id. 545 (preced-
Mass 151 ; Mich. : 1888, Montague v. Dougan, ing case approved) ; 1872, Winner v. Baunian,
68 Mich. 98, 35 N. W. 840; 1886, Brown v. 28 id. 563, 567 (same); 1887, Curran ». Witler,
Wightman, 62 id. 557, 29 N. W. 98 ; yet com- 68 id. 16, 23, 31 N. W. 705 (same),
pare Lester v. Thompson, 1892, 91 id. 250, 51 But under a statute declaring acconnt-books
N. W. 893; Minn.: 1893, Culver v. Lumber to he " prima facie evidence," it has been held
Co., 53 Minn. 360, 365, 55 N. W. 552 ; 1892, that their improper admission is a material er-
Anchor Milling Co. v. Walsh, 108 Mo. 284, 18 ror, even though they could have been used as
S. W. 904 (plaintiff's shipping-book, sworn to by memoranda to assist the memory : 1872, Winner
the general manager, admitted as justified by v. Bauman, 28 id. 563, 567. Such a statute is
the doctrine of memoranda of recollection) ; anomalous and impolitic,
1892, Robinson u. Smith, 111 id. 205, 20 S. W.
1916
§§ 1517-1561] REGULAK ENTRIES. § 1561
adoption as a record of past recollection. Under the few anomalous rulings
in which a clerk's entries were admitted as the party's^ and in which the
party's entries were held not to need personal knowledge, and under certain
of the statutory enlargements {ante, § 1519), this might not be true. But
apart from these and taking the Exception as it is applied at common law by
orthodox authority, it is always decidedly preferable to offer the entries from
the modern point of view. If the party himself made them, as the common
law required {ante, § 1538), he may now take the stand with them ; if a clerk
made them, as permitted by some of the statutory enlargements {ante, § 1519),
the clerk may take the stand with them. It is perhaps singular that counsel
have so frequently submitted to employ parties' books under the hampering
restrictions of the present Exception. As for the Courts, their slowness in
recognizing the full force of the change above judicially expounded is no
doubt chiefly due to a rooted tendency to regard the books as independent or
" original " evidence, distinct from the party's own testimony on the stand
and thus to apply to them the only rule under which, in that view, they
could be receivable.
§ 1561. Relation of this Branch to the main Exception ; Books of Deceased
Party ; Books of Party's Clerk. The relation of this branch of the Excep-
tion, in favor of parties' entries, to the general Exception {ante, §§ 1521-
1533) in favor of regular entries by persons in general, remains to be con-
sidered. (1) The question arises first in this way : How shall we treat an
offer of regular entries by a deceased party ? On principle, they should be
treated from the latter point of view ; i. e. they should be treated as the
ordinary case of a regular entry by a deceased person. This seems to
have become the practice in Englaud,i where the special Exception for
parties' entries was (except by statute) not recognized {ante, § 1518). But
in the United States there has naturally been some confusion. One ten-
dency is to rank them as parties' entries and to test them by the restric-
tions peculiar to the original practice in that branch of the Exception.*
But several Courts have treated them according to the general exception
in favor of regular entries by deceased persons.^ In this view, absence
from the jurisdiction,* as well as other circumstances {ante, § 1521), may
suffice to admit the entries. No Court, however, seems to have declared
^ 1812, Pritt V. Fairclongh, 3 Camp. 305. Insanity ought equally to suffice : 1850, Holbrook
2 1871, Bland v. Warren, 65 N. C. 373 ; 1817, v. Gay', 6 Cush. 216 (Dewey, J. : " The isame
Ash V. Patton, 3 S. & R. 303 ; 1869, Hoover v. necessity which justifies the introduction of the
Gehr, 62 Pa. 136. In this view, the only diffi- books of the party . . . alike seems to require
culty is the lack of the suppletory oath {ante, and justify the admission of them where the
§ 1554). But in the foregoing cases the decease party has hecome incapacitated to take the oatli
was regarded as a sufficient reason for dispensing by reason of insanity ").
with the oath. Absence from the jurisdiction ^ 1889, Setchel v. Keigwin, 57 Conn. 478, 18
ought equally to suffice ; Contra : 1827, Dougla.ss Atl. 594 ; 1837, Leighton v. Manson, 14 Me. 208 ;
V. Heat, 4 McCord 257 (entries rejected ; dis- 1845, Odell v. Culbert, 9 W. & S. 67, semble ;
tingnishing Foster v. Sinkler, 1786, 1 Bay 38, 1850, Thompson v. Porter, 4 Strobh. Eq. 65,
and Spence w. Saunders, 1790, 1 Bay 119, and
expressly refusing to assimilate the case to that * 1875, New Haven & H. Co. v. Goodwin, 42
of entries by absent clerks and other third par- Conn. 231 ; 1786, Foster v. Sinkler, 1 Bay 40
ties; but in the later Thompson «. Porter, !n/ra, (but see the later Douglass i^. Hunt, supra,
the entries of a deceased partner were admitted), contra),
1917
§ 1561 EXCEPTIONS TO THE HEAESAT RULE. [Chap. LI
with sufficient explicitness that this is the proper treatment;^ though there
caa be no doubt of it, either as a matter of principle (because the party,
when he made the entries, was not thea a party), or as a matter of expediency
for the person wishing to encounter the fewest restrictions for the evidence.
For regular entries, 'then, by deceased or otherwise unavailable parties, the
general exception (ante, § 1521) is the proper one to employ. (2) Under the
common law limitations of this branch of the Exception, books kept by the
party's clerk were not admitted as the party's books (ante, § 1538). There
was thus at common law no confusion, as to a clerk's books, between the two
branches of the Exception ; they could come in only under the main Excep-
tion, if the clerk were deceased (ante, §§ 1521-1533), or to aid the recollection
of the clerk, if living, who must then be called to the stand.^ But many of
the statutes dealing with parties' books (ante, § 1519) contain a clause admit-
ting books kept by a clerk ; sometimes the clerk is specified as the party's,
sometimes as a " disinterested " person. la either case the question is pre-
sented whether the statute is to be construed as applying to the parties'
books Exception and therefore as practically abolishing the exclusion of
clerks' books (ante, § 1538), or whether it is to be construed as attempting to
re-state a portion of the general Exception for deceased persons' entries and
therefore as merely declaratory of the common law on that point. This
question, with the few rulings on the subject, has already been considered
(ante, §§ 1519, 1538). It is perhaps vain to attempt to construe statutes
whose framers themselves seem not to have understood precisely the
bearing of their enactments.
» In some modern decisions, it may be added, 7 N. W. 126 (time-books kept by defendant's
the two branches are hopelessly confounded; officers or employees; persons keeping them
e.?., 1889, Culver v. State, 122 Ind. 562 ; 1883, required to be called); and cases cited ante,
Vinal V. Green, 21 W. Va. 308. § 1521.
6 E.g.: 1880, Ford v. R. Co., 5i la. 723, 730,
1918
§§ 1563-1576]
BOOK I, PAET II, TITLE II.
§ 1563
Sub-title II (continued) : EXCEPTIONS TO THE HEAESAY RULE.
Topic VI: SUNDRY STATEMENTS OF DECEASED PERSONS.
CHAPTER LII.
A. Declarations aboht Pkivate
Boundaries.
§ 1563. History of the Exception.
§ 1564. General Scope of the Exception.
§ 1565. Death of Declarant.
§ 1566. No Interest to Misrepresent ; Owner'.s
Statement, excluded.
§ 1567. Massachusetts Rule : Declaration
must be made ( 1 ) on the Land, and (2) by the
Owner in Possession.
§ 1568. Knowledge of Declarant.
§ 1569. Opinion Rule.
§ 1570. Form of Declaration ; Maps, Surveys,
etc.
§ 1571. Discriminations as to Res Gestae,
Admissions, etc.
B. Ancient Deed-Recitals.
§ 1573. Ancient Deed-Recitals, to prore a
Lost Deed, or Boundary, or Pedigree.
§ 1574. Other Principles Discriminated.
C. Statements by Deceased Persons in
General.
§ 1576. Statutory Exception for all State-
ments of Deceased Persons.
At this point may be considered a few Exceptions, recognized in a limited
number of jurisdictions, admitting certain kinds of statements of individuals
deceased or otherwise unavailable. These Exceptions are related to the
general group of the foregoing ones, in that the admissibility of the statements
depends on the declarant being deceased or otherwise unavailable, and they
are thus distinguished from all the ensuing Exceptions, in which the declarant
need not be shown unavailable ; they are distinguished from the Exception
next following (Reputation), in that they involve individual statements, not
reputation.
A. Declarations about Private Boqndaries.
§ 1563. History of the EKception. The use of individual declarations
about private boundary must be carefully distinguished from the use of
Reputation to prove boundaries, in the ensuing Exception {post, § 1582) ;
historically, the former grew out of the latter, in some jurisdictions ; but they
now exist as separate, each with its peculiar limitations. Reputation,
whether about boundaries or about other things, stands on its own ground as
fulfilling the requirements of a distinct Hearsay Exception. The present
Exception is concerned with ordinary individual statements, which in them-
selves show neither the kind of Necessity nor the kind of Circumstantial
Guarantee later to be considered with reference to Reputation.
The present Exception had historically three sources, these distinct origins
being now lost in one blended form. (1) In some of the Southern States,
the Reputation Exception for land boundaries and customs {post, § 1582), as
stated in early English and American treatises, was misunderstood or delib-
erately expanded, and came to be regarded as justifying the reception of
1919
§ 1563 EXCEPTIONS TO THE HEAESAY EULE. [Chap. LII
individual statements, taken solely on the credit of the individual declarant.'
(2) In Massachusetts, the res gestce doctrine, whether in the general and loose
sense of something done (^"^st, § 1795) or in some special relation to an
adverse possessor's declarations {post, § 1778), was regarded as covering
these statements.^ (3) In New Hampshire, and perhaps elsewhere, the cus-
tom of periodical perambulations of town boundaries (brought over from
England) was recognized as one vehicle of introducing reputation evidence
(post, § 1592), and then statements of individuals, particularly surveyors,
wBre taken as being of equal value with these perambulations.^
§ 1564. General Scope of the Exception. In the following passages from
opinions in the various jurisdictions the general tenor and purpose of the
Exception may be seen :
1813, Tilghman, C. J., in Cau/man v. Cedar Spring, 6 Binn. 62: " Where boundary is
the subject, what has been said by a deceased person is received as evidence. It forms
an exception to the general rule."
1832, Henderson, C. J., in Sasser v. Herring, 3 Dev. L. 342 : " We have in questions of
boundary given to the single declarations of a deceased individual as to a line or corner
the weight of common reputation. . . . Whether this is within the spirit and reason of
the rule it is now too late to inquire.''
1844, Parker, C. J., in Smith v. Powers, 15 N. H. 563 : " It is true that the decisions in
England seem to restrict the evidence of the declarations of deceased persons respecting
boundaries ... to what the deceased said relative to the public opinion respecting tlie
boundary. But the testimony has not been limited in this country. . . . The declarations
of a person deceased, who appeared to have had means of knowledge and no interest in
making the declarations, are competent evidence upon a question of boundaiy, even in a
case of private right." ^
§ 1565. Death of Declarant. The principle of necessity (ante, § 1421)
was found in the usual lack of other sufficient evidence for proving boun-
daries. The perishable nature of the landmarks, and the incompleteness of the
records, rendered it necessary to resort to such statements, oral or written, as
could be had from deceased persons having competent knowledge. Though
the changed conditions of life in the later history of our communities have
greatly diminished this necessity, it sufficed in the beginning to establish the
exception in the law :
^ See the quotations in the next section. Lessee v. M'Cubbin, ib. 368; 1774, Hawkins v.
^ See the citations in § 1567, post. Hanson, ib. 531 ; 1778, Weems' Lessee w. Dis-
5 1829, Lawrence v. Haynes, 5 N. H. 36 ney, 4 id. 156 ; N. C. : 1805, Harris v. Powell,
(Richardson, C. J. " It wonld be very singular 2 Hayw. 349; 1837, Hartzog v. Hubbard, 32
if the circumstance that a line has been peram- Dev. & B. 241 ; 1859, Scoggiu v. Dalryniple,
bulated and marlced as the true line by men who 7 Jones L. 46 ; 1886, IJethea v. Byrd, 95 N. C.
had the means of itnowing whether it was the 310, and intervening cases cited; Pa.: 1815,
true line or not and whose duty and whose Hamilton v. Menor, 2 S. & II. 73; 1898, Mineral
interests bound them to perambulate and mark R. & M.~ Co. v. Auten, 188 Pa. 568, 41 Atl. 327
no line but the true one, must be held to afford (ancient survey) ; S. C. : 1 825, Spear v. Coate,
no evidence of its being the true line. It is in 3 McCord 229 ; 1886, Sexton v. HoUis, 26 S. C.
all cases evidence "). 231, 236, 1 S. E. 893; Tenn : 1812, Beard's
^ Besides the rulings in the following sec- Lessee v. Talbot, 1 Cooke 142; Tex.: 1866,
tiona, naming the specific limitations, the rule Stroud v. Springfield, 28 Tex. 666 ; 1878, Hurt
is recognized in the following cases: Ga. Code v. Evans, 49 id. 316; 1887, Tucker v. Smith, 68
1895, § 5183 (quoted post, § 1587) ; Md. : 1735, id. 478, 3 S. W. 671 ; Va : 1837, Harriman v.
Howell's Lessee v. Tilden, 1 Harr. & McH. 84 ; Brown, 8 Leigh 712; Vt. : 1896, Martyn v. Cur-
1766, Bladeu v. Cockey, ib. 230 ; 1770, Reddmg's tis, 68 Vt. 397, 35 Atl. 3.33.
1920
§§ 1563-1576] STATEMENTS ABOUT* BOUNDAEIES. § 1566
1859, Manly, J., in Scoggin v. Dalrymple, 7 Jones L. 46: " Traditionary evidence has
long been received by the courts of Korth Carolina in questions of private boundaries as
well as public. . . . The necessity for such a departure from the common law principle
grew out of the inartificial manner in which the lands of the State were originally sur-
veyed and marked, making it necessary, in order to fix the position of the respective
parcels, to resort more frequently to ti-aditiou, and to give this kind of evidence greater
efficiency by enlarging its limits."
1864, Pierpont, J., in Wood v. Willard, 37 Vt. 387 : « In many of the States, and
especially in this State, the territory within their limits was first divided into townships,
and these were soon after subdivided into small lots and distributed between the several
proprietors. Almost the only evidence left upon the land, to indicate the location of the
lines either of the townships or of the divisions between the proprietors, was marks upon
the trees standing thereon, and these evidences, from lapse of time, accidental causes,
and the cutting off of the timber, are almost entirely obliterated. . . . If it be said that
the lines must be established by witnesses who have personal knowledge of their original
location, they cannot be proved at all, as in the great majority of cases all such persons
are now dead."
Nevertheless, in fulfilling this condition of necessity, it was never required
that the absence of other satisfactory evidence should in a given case be
shown. That absence being assumed to be a general feature commonly ex-
isting, the only requirement was that the decease of the specific person whose
declarations were offered should be shown ; ^ in other words, there was a
necessity for all the evidence that could be had, and, if this person were
deceased, the only evidence available from him was his hearsay statements.
It would seem, however, that insanity, or absence from the jurisdiction, would
here not suffice (as it does for some of the foregoing Exceptions) ; because
the necessity in general is predicated of titles and boundaries of long standing,
for which the lapse of time has operated to destroy other evidence ; and hence
if the matter is one of the present generation, or if the evidence in question
comes from the present generation (as it would if the declarant were merely
absent), this necessity could hardly be presumed to exist.
§ 1566. Wo Interest to Misrepresent ; Owner's Statement excluded. The
general principle of a circumstantial guarantee of trustworthiness {ante, § 1422)
is seen in the requirement that the declarant shall have had no interest or
no motive to misrepresent ; the words " interest " and " motive " being here
used by the Courts interchangeably. The general notion is that he must
stand in such a position that the Court cannot see any reason to expect
misrepresentation :
1870, Nesmith, J., in Smith v. Forrest, ^Q N. H, 289: "The party or declarant must
have no interest to misrepresent. . . . It will be for the Court and jury to determine
. . . whether they had any motives to misrepresent by a statement too favorable to theii-
own pecuniary interest. . . . The evidence tends to show that the location of the bound
where the father says it was established was in disparagement of the declarant's title ;
therefore it conveys or implies no purpose to misrepresent." *
* This is mentioned in all the cases; see the of the rule is hopelessly confused) ; 1901, 0'Con-
quotations in the preceding section, and the fol- nell v. Cox, 179 Mass. ^.50, 60 N. E. 580 (ex-
lowing cases : 1901, Barrett v. Kellj, 131 Ala. eluded, because the decease of the declarant was
378, 30 So. 824 (declarations of a person not not shown).
shown to be deceased, excluded ; the statement i Accord: 1888, Lawrence u. Tennant, 64
1921
§ 1566 EXCEPTIONS TO THE HEAESAY RULE. [Chap. LII
In particular, a statement by an owTier himself about his own boundaries
would thus be inadmissible :
1827, Richardson, C. J., in Shepherd v. Thompson, 4 N. H. 215 : (excluding declarations
as to the boundary of their own land) : " It must be presumed to have been their interest
to extend the boundaries of the lot, and their declarations in favor of their interest were
clearly not admissible." ^
Nevertheless, a few Courts will admit even an owner's declarations, provided
he appears to have had at the time no motive to misrepresent.^ This feature
of the general rule distinguishes it sharply from the Massachusetts variant
next noticed.
§ 1567. Massachusetts Rule ; Declaration must be made (1) on the Land, and
(2) by the Owner in Possession. The general rule, as first established in the
Southern States and thence widely adopted elsewhere {ante, § 1563) made no
other limitations than the preceding. But two other limitations, one of them
in conflict with the preceding, obtained originally in Massachusetts ; these
were due to the associated notions of res gestae and verbal acts {post, § 1778)
which in that jurisdiction, as already noticed {ante, § 1563), served as the
parent for the present Exception.
(1) The declarant must have been, at the time of the declaration, on
the land and engaged in pointing out the boundaries mentioned. This origi-
nally was purely a Massachusetts variant, of long standing.-' Though it
once obtained a footing in New Hampshire and Vermont, it has there since
been repiidiated.^ But, by a not unnatural misunderstanding of the local
nature of this limitation, it has since unfortunately been adopted thence
K H. 540, 15 Atl. 543 ; 1886, Bethea v. Byrd, 95 owners, admitted on the facts) ; 1883, CorWeys
N. C. 310; 1825, Spear b. Coate. 3 McCord229; v. Eipley, 22 \V. Va. 154 (owner's declaratious
1901, Tracy v. Kggleston, 47 C. C. A. 357, 108 inadmissible, unless at the time he had no in-
Fed. 324 (declarations as to boundary by a de- terest to misrepresent) ; 1897, High v. Pancake,
ceased public surveyor, made on the land while 42 id. 602, 26 S. E. 536.
pointing out a mound, admitted ; Pardee, J., There have also been attemptsto apply the
diss., because the declarant was at the time in- post litem molam restriction of other Hearsay
terested in a controversy as to the boundaries) ; exceptions: 1888, Taylor v. Glenn, 29 S. C. 292,
1864, Wood V. Willard, 37 Vt. 387 ; 1868, Pow- 297 ; 1853, Smith v. Chapman, 10 Gratt. 445,
ers V. Silsby, 41 id. 291 ; 1873, Child t'. Kings- 455.
bury, 46 id. 53; 1837, Harriman v. Brown, 8 l 1832, Van Dusen v. Turner, 12 Pick. 532;
Leigh 713; 1895, Reusens v. Lawson, 91 Va. 1842, Daggett w. Shaw, 5 Mete. 226 ; 1856, Bart-
226, 21 S. E. 347, semble ; 1877, Hill u. Proctor, lett v. Emerson, 7 Gray 175; 1856, Ware v.
10 W. Va. 84. Brookhouse, 7 id. 454; 1857, Flagg v. Mason, 8
2 Accord: 1793, Porter v. Warner, 2 Root id. 556; 1857, Whitney v. Bacon, 9 id. 206;
23; 1832, Sasser v. Herring, 3 Dev. L. 342; 1864, Morrill o. Titcomb, 8 All. 100; 1875,
1885, Halstead v. Mullen, 93 N. C. 252; 1888, Long v. Colton, 116 Mass. 414; 1886, Peck
Taylor v. Glenn, 29 S. C. 292, 297, 7 S. E. v. Clark, 142 id. 440, 8 N. E. 335. But declara-
483 ; 1897, State v. Crocker, 49 id. 242, 27 S. E. tions not referring to boundaries, but merely
49 (lines on a plot inserted by the surveyor at asserting some title, are not hereunder admis-
the direction of a claimant, excluded); 1898, sible : Ware ». Brookhouse, Morrill t). Titcomb.
Scaife v. Laud Co., 33 C. C. A. 47, 90 Fed. 238 ^ N. H. : 1 870, Smith k. Forrest, 49 N. H. 237;
(by au heir of the estate, excluded); 1887, overrulinjr Melvin w. Marshall, 1851. 22 id. 382;
Tucker v. Smith, 68 Tex. 478,3 S. W. 671 ; 1880, Vt. : 1868, Powers v. Silsby, 41 Vt. 291, repu-
Evarts v. Young, 52 Vt. 334. diatingthedicfumin Wpodi). Willard, 1864,37Vt.
' 1895, Robinson v. Bewhurst, 15 C. C. A. 387; but a later case looks backward again:
466, 68 Fed. 336 (but it will be noticed that this 1899, Turner F. L. Co. v. Burns, 71 id. 354, 45
case, as cited post, § 1567, also follows the Mas- Atl. 896, semble (must be made " upon or in the
sachnsetts variant, and has evidently confused vicinity of the boundaries, and pointing them
the two forms); 1899, Turner F. L. Co. v. out").
Burns, 71 Vt. 354, 45 Atl. 896 (declarations of
1922
§§ 1563-1576] STATEMENTS ABOUT BOUNDARIES. § 1568
in Maine,^ New Jersey* Pennsylvania,^ and perhaps in other jurisdictions
also.^
(2) In Massachusetts, further, an anomalous and meaningless restriction
is observed that the declarant must also have been, at the time of the decla-
ration, m j7ossessio«. as owner;'' for example, a mere surveyor's statement will
not be received ; this doctrine, again, being due historically (ante, § 1563) to
the parental relationship, in this jurisdiction, of the res gestm rule. It will
be noted that this limitation is precisely the reverse of that of the usual
rule {ante, § 1566) ; i. e. an owner's declaration is by that rule excluded,
but by the Massachusetts rule is admitted ; and vice versa for a surveyor's
statement. This element of the variant rule has apparently been adopted in
only two other jurisdictions.* It is to be hoped that in due time this and the
preceding anomaly of the Massachusetts rule will cease to vex the legitimate
course of precedent elsewhere, and that other Courts will fulLy appreciate that
the rulings in that jurisdiction and its few followers must be wholly ignored
in applying the present Exception.
§ 1568. Knowledge of Declarant. The declarant, iipon general testimonial
principles {ante, §§ 1424, 653) must appear to have had knowledge of the
boundary spoken of, or to have been in a position to acquire such
knowledge :
1837, Tucker, C. J., in Harriman v. Brown, 8 I^eigh 71-3 : "[Such declarations are ad-
missible] provided such person had peculiar means of knowing the fact ; as, for instance,
' 1888, Koyaly. Chandler, 81 Me. 119, 16 A tl. It is regrettable that this abnormal Massa-
410; 1899, Wilsoni'. Rowe, Mid. 205,44 Atl. 615. chusetts rule should be given such notice by
* 1886, Curtis v. Aaronson, 49 N. J. L. 77, 7 other Courts to the confusion of the simple and
Atl. 886. settled rule of orthodox tradition.
1856, Bender v. Pitzer, 27 Pa. 335 (Knox, ' The full statement of the Massachu-
J. : " Nor was the boundary actually shown to setts rule is as follows : 1842, Hubbard, J., in
the witness when the declaration was made ") ; Daggett v. Shaw, 5 Mete. 226 : " Declarations
followed in Kennedy v. Lubold, 88 id. 255 (1878) ; of ancient persons, made while in possession of
Kramer v. Goodlander, 98 id. 369 (1881 ). land owned by them, pointing out their bound-
5 U. S. : By a misunderstanding of the Texas aries on the land itself, and who are deceased at
rule, which has no such limitation (ante., § 1566), the time of the trial, are admissible in evidence,
this element was required in Hunnicutt v. Pey- where nothing appears to show that tney were
ton, 1880, 102 U. S. 364 ; but it is doubtful since interested in thus pointing out their boundaries."
Clement!). Packer, 1887, 125 U.S. 325, 8 Sup 907, Accord : 1856, Bartlett v. Emerson, 7 Gray 175 ;
whether this requirement would be insisted on 1857, Whitney v. Bacon, 9 id. 206 ; 1882, Boston
where the law of the State did not prescribe it ; Water P. Co. v. Hanlon, 132 Mass. 483 (deceased
in Ayres v. Vfatson, 1890, 137 U. S. 596, U Sup. surveyor's field notes and plottiugs, excluded) ;
201, the doubt was left unsolved; in Kobinson ?•. 1886, Peels v. Clark, 142 id. 440,8 N. E. 335,
Dewhursr, 1895, 15 C. C. A. 466, 68 Fed. 336, it and cases ante, par. 1. Compare the cases
was held, thinking of this doctrine, that the dec- cited post, § 1573, which rest on a different
laration must be made while on the land and doctrine.
poiutiugout, or at least must be not a mere casual > 1891, Royal v. Chandler, 83 Me. 152,21
recital; so also Martin v. Hughes, 1898, 33 Atl. 842; 1899, Wilsons). Rowe, 93 id. 20.5,44
C. C. A. 198, 90 Fed. 632 (for Pennsylvania; Atl. 615 ; 1886, Curtis v. Aaronson, 49 N. J. L.
declarant must be on the land ; here a deceased 77, 7 Atl. 886.
surveyor). In Canada, no certain rule appears in the
Ala. : 1902, Southern Iron Works v. Central cases : 1847, Doe v. Murray, 3 Kerr N. Br. 335
of G. K. Co , 131 Ala. 649, 31 So. 723 (declara^ (declarations of a deceased surveyor while point-
tions as to private boundaries, held inadmissible, ing out boundaries, admitted, " as part of the
excejit when made by persons in possession and res gestm ") ; 186+, Sartell v. Scott, 6 All. N. Br.
pointing out boundaries; following Hunnicutt 166 (declarations of an owner in possession
!'. Peyton, U. S., and adopting the Massachusetts while pointing out the boundary of land he was
rule) ; 1900, Smith i'. Glenn, 129 Cal. 18, 62Pac. selling, excluded) ; 1877, O'Connor v. Dunn, 2
180 (owner's declarations while in possession and Out. App. 247 (deceased surveyor's notes, not
surveying, admitted). admitted).
1923
§ 1568 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LII
the surveyor or chain carrier who were engaged upon the original surrey; or owner of
the tract, or of an adjoining tract calling for the same boundaries ; and so of tenants,
processioners, and others whose duty or interest would lead them to diligent inquiry and
accui'ate information of the fact."
1856, Lee, J., in Clements v. Kyles, 13 Gratt. 478 (rejecting hearsay statements) : " It
is said that the declarant was living on the land at the time, but in what character is not
stated. . . . That his living within the bounds of the survey gave him the opportunity
to see trees marked as corners of some survey, found accidentally or otherwise, would
surely not be sufficient, unless some duty or interest can be ti-aced to him by which he
would have been prompted to make diligent inquiry and to obtain accurate information,
within the meaning of the rule as propounded in Harriman v. Brown." *
§ 1569. Opinion Rule. The Opinion rule {post, § 1956), for the reasons
already indicated under the Exception for Dying Declarations {ante, § 1447),
can hardly be thought to apply to these extrajudicial statements of deceased
persons. Nevertheless, it is occasionally invoked.-'
§ 1570. Form of the Declaration; Maps, Surveys, etc. The declaration
may be either oral or written ; and statements in the form of maps, plans,
surveys, and the like, have been constantly admitted under the present Ex-
ception.i From this is to be distinguished the use of surveys or maps under
the Exception for Eeputation {post, § 1592), and under the Exception for
Official Statements {post, § 1665).
§ 1571. Discriminations as to Res Gestae, Admissions, etc. Erom the use,
under this Exception, of a deceased person's declarations as to boundaries, are
to be discriminated other kinds of declarations about land, coming under
other principles ; these are chieHy (1) declarations by deceased persons offered
as the vehicle of reputation {post, § 1584); (2) declarations by deceased per-
sons of facts against their proprietary interest {ante, § 1458) ; (3) declarations
by a party or privy constituting admissions of title {ante, § 1082) ; (4) decla-
rations made as verbal acts, coloring the nature of possession of land {post,
§§ 1778-1780). The practical differences in the operation of these distinct
principles are elsewhere more fully pointed out {ante, §§ 1459, 1087, post,
§ 1780).
1 Accord: 1860, Morton v. Folger, 15 Cal. 336; 18G4, Wood v. Willard, 37 Vt. 387; 1868,
279; 1870, Smith v. Forrest, 49 N. H. 237; Powers v. Sibley, 41 id. 291; 1873, Hadley ».
1902, Westfelt v. Adams, 131 N. C. 379, 42 Howe. 46 id. 142; 1895, Fry v. Stowers, 92 Va.
S. E. 823 (declarations, as to a corner tree, 13, 32 S. E. 500 (the son of an adjacent owner
not in view at the time of the declaration, ad- and a chain-bearer upon a different survey, ex-
missible, if identification is practicable) ; 1856, eluded) ; 1877, HiU v. Proctor, 10 W. Va. 84.
Bender «. Pitzer, 27 Pa. 335 (" It was no part of "■ 1853, Smith v. Chapman, 10 Gratt. 445,
the offer that A. J. had made the boundary, or 455 (chain-carrier's statement as to " the waters
that he was present when it was made, or that on which the 1'. survey should lie," excluded, as
he had subsequently examined it, or had run the opinion); 1897, High v. Pancake, 42 W. Va.
lines of either survey. ... It was the mere dec- 602, 26 S. E. 536 (" We must have a declaration
laratiou of one who did not appear to have cor- establishing a fact, as a corner tree or particular
rect information on the subject ") ; 1888, Taylor marked line, not simply a statement that the
V. Glenn, 29 S. C. 292, 297 (declarations of a land is within his boundary or the same con-
neighbor, not having special knowledge, ex- veyed in a certain deed, or that a line would
eluded); 1900, Montgomery v. LipscomI), 103 cross a creek at a certain point, without more ").
Tenn. 144, 58 S. W. 306 (declaration of former Compare the cases cited post, § 1956.
owner or surveyor, admissible; obscure) ; 1887, ^ Examples: 1860, Morton v. Folger, 15 Cal.
Tucker v. Smith, 68 Tex. 478, 3 S. W. 671; 279; 1870, Smith v. Forrest, 49 N. II. 239;
1880, Hunnicutt v. Peyton, 102 U. S. 364 ; 1895, 1866, Stroud v. Springfield, 28 Tex. 665 ; 1867,
Robinson v. Dewhurst, 15 C. C. A. 466, 68 Fed. Welder v. Carroll, 29 id. 333.
1924
§§ 1563-1576] ANCIENT DEED-EECITALS. § 1573
B. Ancient Deed-Eecitals.
§ 1573. Ancient Deed-Recitals, to prove Lost Deed, or Boundary, or Pedi-
gree. There is a limited use of deed-recitals, by way of exception to the
Hearsay rule, which has its root in orthodox and ancient tradition, and yet
has never received great encouragement; and finds recognition in only a small
number of precedents. This use of deed-recitals seems to have been recog-
nized for three different purposes.
(1) Where in one deed the contents of another deed are recited, the rule
requiring production of the original (ante, § 1179) must of course first be
satisfied ; but, supposing it to be satisfied by proof that the other deed once
existed and was lost, then the recital, according to an early and unquestioned
ruling, is admissible as evidence of the contents and the execution of the lost
deed.^ This precedent has been justified by eminent American judges in the
following language :
1811, Tilghman, C. J., in Garwood Y. Dennis, 4 Binn. 314, 327 (admitting recitals, in
an ancient deed, of the existence and contents of another deed, afterwards lost, by a
predecessor in title ante litem motam, the reciter being a trustee to make partition) : " The
assertion of such persons must make a strong impression. But it is objected that, how-
ever impressive tlie declaration of a man of character may be, even without his oath, yet
the law admits the word of no one in evidence without oath. The general rule certainly
is so ; but subject to relaxation in cases of necessity or extreme inconvenience. How is
it expected that a deed like the present is to be proved, when the subscribing witnesses
have been dead eight and twenty years and the deed itself is not to be found ? ... Is it
not necessary to resort to secondary evidence without oath ? "
1830, Story, 3., in Carver v. Jackson, 4 Pet. 1, 83: "There are cases in which such
a recital may be used as evidence even against strangers. If, for instance, there be tlie
recital of a lease in a deed of release, and in a suit against a stranger the title under
the release comes in question, there the recital of the lease in such release is not per
se evidence of the existence of the lease; but if the existence and loss of the lease be
established by other evidence, there the recital is admissible as secondary proof in the
absence of more perfect evidence, to establish the contents of the lease; and if the trans-
action be an ancient one and possession has been long held under such release and is
not otherwise to be accounted for, there the recital will of itself materially fortify the
presumption from lapse of time and length of possession of the original existence of the
1 1704, Ford v. Grey, 6 Mod. 44, 1 Salk. 285 by the claimant that he has seen the letter) ;
(" A fine was prodnced, but no deed declaring 1811, Garwood v. Dennis, 4 Binn. 314, 327, 332,
the uses ; but a deed was offered in evidence 340 ( but Tilghman, C. J., alone takes this
which did recite a deed of limitation of the reason ; Brackenridge, J., seems to take another
uses ; and the question was whether that was reason, noted ante, § i 1 33 ; and Yeates, J., dis-
evidence. And the Court said, that the bare sents) ; 1900, DorfE r. Schmunk, 197 Pa. 298, 47
recital of a deed was not evidence, but that if Atl. 113 (after evidence of loss, a recital in a deed
it could be proved that such a deed had been, of 1860 was admitted to prove the lost deed) ;
and [was] lost, it would do if it were recited 1830, Carver v. Jackson, 4 Pet. 1, 83 (admissible
in another "). to show contents, if the original's existence is
^ Accord: 1900, Norriss. Hall, 124 Mich. 170, otherwise shown, and loss proved ; see quotation
82 N. W. 832 (recitals in a deed, a power of supra] ; 1832, Crane v. Morris, 6 id. 598, 610
attorney, and a court order, of 1846, that title (same; lapse of time may be sufficient evidence
passed on S.'s death to survivors, etc, admitted) ; of execution and loss); 1866, Deery v. Cray, 5
N. J. Gen. St. 1896, Conveyances, § 194 (recital Wall. 795, 797, 805 (recital of a will, of seisin,
of a letter of attorney in a deed recorded for ten etc., admitted ; Carver v. Jackson followed),
years, admissible to prove its existence, on oath
1925
§ 1573
EXCEPTIONS TO THE HEAESAY RULE. [Chap. LII
It would seem to be imp]ied in this doctrine that the lost deed must be an
ancient one (post, § 2137), or at least that no other evidence of execution or
contents is available. Moreover, a few cases seem to impose the additional
condition, analogous to that required for authenticating ancient deeds (post,
§ 2141), that the premises claimed should have been in possession of the
claimant, as a necessary corroborative circumstance.^ That such a recital is
not admissible where the original deed recited is not accounted for as lost or
the like, seems unquestioned.*
(2) In Massachusetts, a series of precedents admits a recital in an ancient
deed to show the location of a ioundary or monurfient^ though possibly the
scope of the exception may prove to be somewhat larger. But the basis of
the rule is the probability of the recital's truth by reason of its having been
acted upon in contemporaneous transactions ; and this limitation is strictly
applied.^
(3) A recital, in an ancient deed, of a pedigree of inheritance is by some
Courts treated as admissible to show the state of the relationship.^ Here also
3 I860, McKinnon v. Bliss, 21 N. Y. 206, 21)
(recitals in a will of the plaintiff's predecessor,
excluded ; "assertions of title or claims of owner-
ship made in deeds or wills may in some rare
cases be evidence, . . but only in connection
with other proof of a long-continued and undis-
puted possession in accordance with the right or
title claimed"); 1798, Frost v. Brown, 2 Bay
135, 138 {recital, in a deed by the offeror's an-
cestor VV., of a lost deed from S. to W., offered
in corroboration, to show the latter deed's ex-
istence ; the offeror not being in possession ; the
Court equally divided) ; 1831, Sims v. Meacham;
2 Bail. 101 (recitals in an old deed of a State
grant of a certain date, the public records of that
year being lost, held " insufficient " to raise a
presumption of such grant).
* 1885, Calloway v. Cossart, 45 Ark. 81, 85
(recitals of payment and receipt of patent, ex-
cluded) ; 1823, Hite v. Shrader, 3 Litt. 445, 447 ;
1810, Bonnet v. Devebaugh, 4 Binn. 175, 178,
190 (recitals in warrant dated 1763, of survey on
proprietaries' order, excluded, apparently be-
cause loss of original was not shown) ; 1856,
Watrous v. McGrew, 16 Tex. 50S, 513.
The following case stands on peculiar
grounds: 1837, Jones v. Inge, 5 Port. 327, 335
(grantee of tee-patent from the U. S., the patent
reciting that it was given to the grantee as pur-
chaser from an Indian reservee; evidence of the
Indian's incapacity to reserve and his infancy
when selling was offered ; held, ( 1 ) that recitals
in general are not evidential against strangers ;
(2) that under the Indian treaties, the U. S.
patent-recitals were intended to be admissible
and indisputable as against strangers ; (3) but
that nevertheless the deed from the Indian to
the patentee must be accounted for).
Compare the rules about grantor's admissions
(ante, § 1082), and oral admissions of a deed's con-
tents {ante, § 1256).
» 1840, Sparhawk v. Bullard, 1 Mete. 95, 101
(" Recitals in ancient deeds are always compe-
tent evidence"; here, of a boundary); 1870,
1926
Morris v. Callanan, 105 Mass. 129 (description
of boundary in a deed more than 50 years old,
admitt&l) ; 1879, Orury v. R. Co., 127 id. 571,
581 (plans of 1805 and 1816, showing the position
of a creek, admitted) ; 1882, Randall v. Chase,
133 id. 210 (deed of 1839 admitted, reciting loca-
tion of a way).
5 1882, Boston Water Power Co. v. Hanlon,
132 Mass. 483 (the document must be " of siicli
a character as usually accompany transfers of
title or acts of possession, and purport to form a
part of actual transactions referring to coexist-
ing subjects by which their truth can be tested,
and there is deemed to be a presumption that
they are not fabricated"; here excluding a de-
ceased surveyor's field-notes and plottings, be-
cause not " acted on ") ; 1 896, Whitman v. Shaw,
166 id. 451, 44 N. E. 333 (a plan and field-notes,
made in 1818, by a surveyor under the direction
of the predecessors in title of either plaintiff or
defendant, the latter claiming by adver.se pos-
session, as well as by deed, and the dispute
involving a boundary line, admitted, as repre-
senting " actual transactions ").
' Saw.: 1901, Mist v. Kapiolani Estate, 13
Haw. 523 (deceased grantor's recitals of rela-
tionship, in a deed later than 1 853 ; " after a
relationship and the death had been established
by evidence aliunde, the recitals were properly
admitted"); N. F. ; 1830, Jackson v. Russell,
4 Wend. 543, 548 (recitals in an old deed, used to
show death of persons in interest) ; 1 901, Young
V. Shulenberg. 165 N. Y. 385, 59 N. E. 135 (re-
citals in an ancient deed, admitted to prove
relationship ; but the Court inconsistently pro-
ceeds to apply the limitations of the pedigree
exception, ante, §1480); Pa.: 1782, Morns v.
Vanderen, 1 Dall. 64, 67 (recital " with respect
to a pedigree," but not recital of another deed,
admissible) ; 1795, Paxton v. Price, 1 Yeates 500
(" recitals in a conveyance are evidence of pedi-
gree, the rules in general being much relaxed in
this particular") ; 1844, James v. IjOtzler, 8 W.
& S. 192 (" There is an exception in the case of
§§ 1563-1576] ANCIENT DEED-EECITALS. § 1574
tlie antiquity of the deed depends upon the rules of Authentication {post,
§ 2137). Moreover, in most of the precedents, the analogous requirement is
mentioned {post, § 2141) that possession of the premises under the deed must
also have existed as a corroborative circumstance.
§ 1574. Other Principles Discriminated. From the foregoing use of deed-
recitals as a hearsay exception, the application of certain other principles
must be discriminated.
(1) From the hearsay use of ancient deed-recitals to prove the contents of
anotlier deed must be distinguished {a) the use of deed-recitals as admissions
of the other deed's contents {ante, § 1082). The practical differences in the
rules' limitations are three ; by the former the deed must be ancient, but not
by the latter ; by the former the deed must be lost or destroyed, but probably
not by the latter, though here there is much controversy (ante, § 1257) ; by
the former the recitals are usable for or against any one, as is all evidence
under hearsay exceptions, while by the latter they are usable only against
the party whose predecessor or privy in title made the deed. (6) The use
of recitals of other deeds in the deed of a sheriff, trustee, or other official
(post, § 1664) must also be distinguished; for the latter are admissible
under the Exception for Official Statements, and very different conditions of
admissibility there apply, (c) The use of a party's self-serving statements
as explaining away his admissions (ante, § 1133) may also serve to admit
deed-recitals which would not be admissible under the present Exception.
an ancient deed containing a recital, where the ance, shall contain a recital in respect to
possession has accompanied such deed ; ... in pedigree, consanguinity, marriage, celibacy,
deeds there are often recitals of marriages, adoption, or descent, and shall have been re-
births, or deaths without issue, and other facts corded in the proper register's office for 20
incident to the conveyance," which thus become years," and is otherwise admissible, it shall be
admissible ; here, a recital of one P.'s attainder received as evidence of the facts recited ; so
and forfeiture) ; 1867, Bowser v. Cravener, 56 also a recital in " any will of real estate, or a
Pa. 132, 142 (approving Paxton v. Price) ; 1870, copy thereof, foreign or domestic," if duly pro-
ScharfF v. Keener, 64 id. 376, 378 (recitals of bated) ; 1885, Watts v. Owens, 62 Wis. 512,
pedigree in an ancient deed accompanied by 524, 22 N. W. 720, se»i6/c (admissible). Contra:
pos-session, admitted); Tex.: 1863, Chamblee Eng.: 1826, Fort y. Clarke, 1 Russ. 601 (recitals
V. Tarbox, 27 Tex. 139, 145 (marriage) ; U. S. ; of pedigree in a deed of 1793, excluded ; semhle,
1826, Stokes v. Dawes, 4 Mason 268, Story, J. admissible if possession had been shown in the
(" after 60 years, it is not too much to say that predecessors thus named); 1836, Slaney v. Wade,
a fact of heirship, stated in a deed uuder which 1 Myl. & Cr. 338, 345, 358, per Eldon, L. C.
possession was held without question for 30 (recitals of pedigree in an old deed, excluded) ;
years, may well be admitted"); 1866, Deery w. Ga.: 1900, Dixon u. Monroe, 112 6a. 158, 37
Cray, 5 Wall. 795, 805 (heirship) ; 1886, Tulker- S. E. 180 (recital of heirship, excluded) ; Pa.:
son V. Holmes, 117 U. S. 389, 399, 6 Sup. 780 1838, Murphy v. Loyd, 3 Whart. 538, 549 (re-
(preceding case approved f but the rule is citals by a grantor of his own pedigree in an
treated as if governed by the pedigree excep- ancient deed, excluded); Tex.: 1898, Watkins
tion) ; 1902, Stockley r. Cissna, 56 C.C. A.324, v. Smith, 91 Tex. 589, 45 S. W. 560 (recitals of
119 Fed. 812, 824 (recitals of heirship in a deed heirship in predecessors' deeds, not admissible).
of 1897, not admitted against a stranger ; Car- Compare the rule for hearsay statements of a
ver V. Jackson, supra, approved); VI.: 1841, deceased member o/"a/ami7y (amie, §§ 1480-1,503).
Potter V. Washburn, 13 Vt. 558, 564 (mere re- A Canadian statute seerns to introduce an ex-
cital of heirship in a deed, not receivable, "es- ception of large and indefinite scope: Out. Rev.
pecially where the deed is of recent date"); St. 1897, c. 134, § 2 (in completing contracts for
1842, Bell V. Porter, 14 id. 307, 309 ("However sale of land, " recitals, statements and descrip-
it may be with such a recital uncorroborated," tion of facts, matters and parties, contained in
the sequence of 30 or 40 years' possession by deeds, instruments, acts of Parliament or statu-
subsequent grantees here sufficed for admis- tory declarations 20 years old at the date of
sion) ; Wis.: St. 1901, c. 28 (" Whenever any the contract" are evidence),
deed, mortgage, land contract, or other convey-
1927
§ 1574 EXCEPTIONS TO THE HEARSAY EULE. [Chap. Lll
(d) The use of copies of ancient deeds not verified by a witness on the stand
{ante, § 1281, post, § 2143) must also be distinguished, (e) The use of
recitals of a power of attorney in an ancient deed, as suflicient evidence of
the power's existence, falls under another head (post, § 2144).
(2) From the use under the present Exception of ancient deed-recitals to
prove boundary (as in Massachusetts) must be distinguished (a) the use,
under the foregoing branch of the Exception, of declarations by deceased per-
sons about private boundary, particularly the Massachusetts form of the rule
(ante, §§ 1564, 1567) ; and also (b) the use of reputation to prove boundary,
under the next Exception (post, §§ 1587, 1592), by which ancient deeds,
leases, maps, and the like, become admissible so far as they can be construed
as the vehicle of reputation, (c) Moreover, where adverse possession is relied
upou, the ancestor's making of a deed, reciting the extent of his claim, may
be admissible as a verbal act coloring possession (post, § 1778). (d) Finally,
in proving acts of adverse possession, the question may arise whether the
mere making of a deed or lease is evidence of possession (ante, § 157).
(3) From the use of deed-recitals of pedigree, under the present Exception,
must be distinguished the use of declarations of relationship by a member of
the family, under the Family History Exception (ante, §§ 1480, 1497). The
difference is that under the present Bitception it is not necessary that the
reciter should be related to the persons mentioned. Nevertheless, most of
the recitals admitted under the present Exception would have been admis-
sible under the former ; and it is possible that the present one grew out of
passages in earlier writers stating the former in loose language.
G. Statements by Deceased Persons in General.
§ 1576. Statutory Exception for all Statements of Deceased. There was a
time, in the early 1800s, when it came near to being settled that a general
exception should exist for all statements of deceased persons who had com-
petent knowledge and no apparent interest to deceive ; ^ but this tendency
was of short duration and was decisively negatived.^ Nevertheless, such an
exception, uniting as it does the essential requirements of an exception to
the Hearsay rule (ante, §§ 1420-1424), commends itself as a just addition
to the present sharply defined exceptions, and foreshadows undoubtedly the
enlightened policy of the future :
1876, Mellish, L. J., in Sugden v. St. Leonards, L. R. 1 P. D. 154 : " I have not the
least hesitation in saying that I think it would be a highly desirable improvement in the
law if the rule was that all statements, made by persons who are dead, respecting matters
of which they had a personal knowledge, and made ante litem motam, should be admitted.
There is no doubt that by rejecting such evidence we do reject a most valuable source of
evidence. . . . [But] it appears to me that it would be better to leave it to the Legisla-
ture to make the improvement, which in my opinion ought to be made, in our present
rules with regard to the admissibility of evidence of that description."
^ Cases cited ante, § 1476. 1092 (statements by a deceased attesting wit-
' 1844, Sussex Peerage Case, U CI. &F. 85; ness, excluded).
1901, Morell v. Morell, 157 Ind. 179, 60 N. E.
1928
§§ 1563-1576] DECEASED PERSON'S IN GENERAL. § 1576
1879, Cockburn, L. C. J., in R. v. Bedingfield, 14 Cox Cr. 342: "I regret that ac-
cording to the law of England any statement made by the deceased should not be
admissible."
1886, Hersehell, L. C, in Woodward v. Goulstone, L. R. 11 App. Cas. 469 : "No doubt
there are many countries, and indeed Scotland is one of them, where the law permits
declarations of persons who are dead to be given in evidence in all cases where they were
made under circumstances in which such evidence ought properly to have been admitted
if the person had been living ; and there is much to be said for that law as compared with
our own." *
1860, Applelon, C. J., Evidence, 190 : " It is equally desirable that all testimony should
have all possible and conceivable securities for trustworthiness ; but if- from any cause
the attainment of one or more of those securities becomes physically impracticable, that
will not suflBce for the rejection of such evidence thus obtained, if it have any the slight-
est probative force. . . . The best evidence, the highest securities for testimonial veracity,
are required ; but the best theoretic evidence, the best theoretic securities, may be unat-
tainable. ... If, then, these principles be adopted, it would seem to follow that when
the witness is dead, his declarations in whatsoever form attainable should be received.
. . . The epistles of Paul, the journal of Columbus, the letters of Washington, would not
be adjudged competent to establish any fact which being in issue might be determined
by their production. . . . Were Paul or Columbus or Washington living, the reasoning
by which this testimony would be excluded might be considered unanswerable ; dead,
their evidence thus flelivered, satisfactory to everybody else, to the judge alone seems
without force."
Eecommendations of such an enlargement had been made more than two
generations ago.* But no effect was given them until fairly recent times.
To-day are found statutes in three jurisdictions ; and these experiments have
sufficiently shown that the example is safe to follow.
These statutory exceptions are found in two forms, the one being of a lim-
ited scope only. (1) In Connecticut a statute admits all statements of a
deceased person in an action by or against his representatives or those claim-
ing under him.^ The avowed purpose of this statute was merely to place
the deceased party's case on an equal footing, in respect to sources of proof,
with that of the surviving opponent.® Eegarded as a substitute for the stat-
* " [The French lawyers] laughed, not with- tries and written memoranda of deceased per-
ont reason, at our strictness in excluding all sons would be admissible in favor of the repre-
hearsay evidence " ( Life of L. C. Campbell, I, sentatives of such deceased persons, such entries
364). . and memoranda may be admissible in favor of
* A proposal to this effect had been made in any person claiming title under or from such
England as long ago as 1828, by Lord (then deceased person").
Mr.) Brougham, in his great Speech on the * 1893, Baldwin, J., in Rowland v. R. Co.,
Courts of Common Law, 18 Hans. Pari. Deb. 63 Conn. 415, 417, 28 Atl. 102 ("The act of
2d Ser. 218, 227, who proposed that " any de- 1848, by removing the common-law disqualifi-
ceased person's books or memorandums may be cation of interest, brought two important wit-
received, provided it appear that they were not nesses, the plaintiff and defendant, into the trial
prepared with a view of making evidence for of almost every suit. Two years of practice
his successors but plainly alio intuitu." This under its provisions convinced the Legislature
proposal was probably based on Bentham's sug- that, when the accident of death had withdrawn
festion, in his Rationale of Judicial Evidence, one of these witnesses, tlie testimony of the
. VI, c. n, § 1, b. I, c. XIII, § 5. other gave him as a party an undue advantage.
" Conn. Gen. St. 1887, § 1094 ("In all ac- The act of 1850 [now Gen. St. § 1094] was ra-
tions by or against the representatives of de- tended to restore, so far as might be, the footing
ceased persons, the entries, memoranda, and of equality between him and the representatives
declarations of the deceased, relevant to the of the decedent which had existed at common
matter in issue, may be received in evidence ") ; law ").
§ 1095 (" In all actions ... in which the en-
1929
§ 1576
EXCEPTIONS TO THE HEAESAY EULE.
[Chap. LII
utory rule common in other jurisdictions (ante, § 578), whereby the survivor
is disqualified as a witness, this rule deserves universal imitation. The
policy of disqualifying the survivor has already been noticed {ante, § 578) as
-unenlightened and unpractical, and is so thoroughly to be condemned that
there is no excuse for not employing the present rule as a more effective and
rational expedient to attain the same end. The Connecticut statute has
been in operation more than fifty years, and the trifling number of rulings
required to interpret and apply it ' merely puts in a more discreditable light
the thousands of quibbling decisions that have been rendered necessary by
the arbitrary and complicated wording of the other group of statutes. In
Massachusetts and Oregon, statutes of more limited scope have followed the
Connecticut example.*
(2) In Massachusetts, a statute has gone the full length of the doctrine
above mentioned as advanced in the early 1800s, by adding a general excep-
tion for statements of deceased persons.^ The exception has thus far been
found to work well, and its general extension would confer great benefit upon
litigation.
' 1865, Bissell v. Beckwith, 32 Conn. 509,
517 (the classes of writings named include or-
dinary letters, and are not confined to docu-
ments of purely mercantile or legal purpose) ;
1893, Barber's Appeal, 63 id. 393, 412, 27 Atl.
973 (statute does not admit diaries of a testator
in a probate appeal, this not being an " action " ;
unsound; such a ruling teuds to reintroduce
technicalities of enumeration) ; 1893, Rowland
V. R. Co., 63 id. 415, 417, 28 Atl. 102 (where an
injured plaintiff's deposition has been taken in
action begun before his death, the e.\ception for
these extrajudicial statements fails); 1899,
Brown V. Butler, 71 id. 576, 42 Atl. 654 (statute
applied) ; 1900, St. Regis Lumber Co. !'. Hotch-
kiss, — id. — , 44 Atl. 11 (statute applied).
' Mass. St. 1896, c. 445 ("In the trial of
an action against an executor or against an ad-
ministrator of a deceased person in which the
cause of action is supported by oral testimony
of a promise or statement made by said de-
ceased person, evidence of statements written or
oral made by said deceased person, memoranda
and entries written by liim, and evidence of his
acts and habits of dealing, tending to disprove
or to show the improbability of such statement
or promise having been made, shall be admis-
sible"); 1901, National Granite Bank v.
Whicher, 179 Mass. 390,' 60 N. E. 927 (statute
applied) ; 1902, Huebener v. Childs, 180 id. 483,
62 N. E. 729 (statute applied to evidence ad-
duced on re-examination) ; Or. St. 1893, p. 134
(amends Code § 711, quoted ante, §488, by add-
ing to par. 2 : " provided that when a party to
an action or suit by or against an executor or
administrator appeai-s as a witness in his own
behalf, statements of the decea.sed concerning
the same subject in his own favor may also be
proven") ; 1894, Grubbe v. Grubbe, 26 Or. 368,
38 Pac. 182 (statute applied).
9 Mass St. 1898, c. 535, Rev. L. 1902, c. 175,
§66 ("No declaration of a deceased person shall
be excluded as evidence on the gTound of its being
hearsay, if it appears to the satisfaction of the
judge to have been made in good faith before
the beginning of the suit and upon the personal
knowledge of the declarant") ; 1900, Brooks v.
Holden, 175 Mass. 137, 55 N. E. 802 (statute
does not apply in restriction of any other excep-
tions to the rule); 1901, Stocker u. Foster, 178
id. 591, 60 N. E. 407 (grantor's declaration as
to intent of executing deed, admitted); 1901,
Dixon V. R. Co., 179 id. 242, 60 N. E. 581 (de-
ceased officer's statement admitted) ; 1992,
O'DriscoU v. R. Co., 180 id. 187, 62 N. E. 3
(written report of deceased physician to the de-
fendant, admitted) ; 1902, Green v. Crapo, 181
id. 55, 62 N. E. 956 (deceased's copying of let-
ters in a press, said to " import a declaration
that they are in the course of transmission,"
and semble to be within the statute as such) ;
1902, Boyle i'. Columbian F. Co., 182 id. 93, 64
N. E. 726 (statute applied); 1903, Hayes v.
Pitts-Kimball Co., 183 id. 262, 67 N. E. 249
(statute applied; see citation post, § 2099).
1930
§§ 1580-1626]
BOOK I, PAET U, TITLE II.
1580
Sub-title II (continued) : EXCEPTIONS TO THE HEARSAY EULE.
Topic VII : REPUTATION.
CHAPTER LIII.
§ 1580. In General.
A. IiAND-BoUNDARIES AND LaND-CdSTOMS.
1. The Necessity Principle.
§ 1582. Matter must be Ancient.
2. The Circumstantial Guarantee.
§ 1 583. General Principle ; Reputation as
Trustworthy.
§ 1584. lieputation, but not Individual As-
sertion.
§ 1585. Eeputation not to Specific Acts.
§ 1586. Reputation only to Matters of Gen-
eral Interest.
§1587. Same; Application of the Rule to
Private Boundaries, Title, and Possession.
§ 1588. Reputation as (1 ) Post Litem Motam,
or (2) from Interested Persons, or (3) Favoring
a Right.
3. Testimonial Qualifications, and Other
Independent Rules of Evidence.
§ 1591. Reputation must come from a Com-
petent Source ; Reputation in Another District.
§ 1592. Vehicle of Reputation; Old Deeds,
Leases, Maps, Surveys, etc.
§ 1593. Same: Jury's Verdict as Reputation.
I 1 594. Same : Judicial Order or Decree, or
Arbitrator's Award, as Reputation.
§ 1595. Negative Reputation.
B. Events of General Histokt.
§ 1597. Matter must be Ancient ; Statutory
Regulation.
§ 1598. Matter must be of General Interest.
§1.^99. Discriminations; (1) Judicial Notice;
(2) Scientific Treatises.
C. Mabriage, and other Facts op Family
History.
§1602. Reputation of Marriage; General
Principle.
§1603. Same: What constitutes Reputation ;
Divided Reputation; Negative Reputation.
§ 1604. Same: Sufficiency of Reputation-evi-
dence, discriminated.
§ 1605. Reputation of other Facts of Family
History (Race-Ancestry, Legitimacy, Relation-
ship, Birth, Death, etc.).
D. Moral Character (Party or Witness).
§ 1608. Reputation and Actual Character, dis-
tinguished.
§ 1609. Reputation not a "Fact," but Hear-
say Testimony.
§ 1610. General Theory of Use of Reputation
as Evidence of Character.
§ 1611. Reputation, distinguished from Ru-
mors.
§ 1612. Reputation must be General; Divided
Reputation.
§ 1613. Same : Majority need not have
Spoken.
§ 1614. Same: Never Hearing anything
Against the Person.
§ 1615. Reputation must be from Neighbor-
hood of Residence.
§ 1616. Same: Reputation in Commercial or
other Circles, not the Place of Residence.
§1617. Time of Reputation ; (1) Reputation
before the Time in Issue.
§1618. Same: (2) Reputation after the Time
in Issue.
§ 1619. Other Principles affectingReputation,
discriminated (Character in Issue, Witness'
Knowledge of Reputation, Belief on Oath).
§1620. Kind of Character: (1) Chastity,
(2) House of Ill-fame; (3) Common Offender.
§1621. Same: (4) Sanity; (5) Temperance ;
(6) Expert Qualifications; (7) Negligence;
(8) Animal's Character.
E. Sondry Facts.
§ 1623. Reputation to prove Solvency ; or
Wealth.
§ 1 624. Reputation to prove Partnership.
§ 1625. Eeputation to prove (1) Legal 'Tradi-
tion, (2) Incorporation.
§ 1626. Reputation to prove Sundry Facts,
§ 1580. In General. At the time of the definite emergence of the Hearsay
rule (ante, § 1364) — that is, by the end of the 1600s — , there remained in
existence a practice, more or less loose, of receiving the repute of the com-
munity on various matters. At that time, the jury's traditional right to
resort to common repute as a source of its knowledge was still a real part of
trial-practice. It can be easily understood that the exclusion; when offered
in court as evidence, of a repute which the jury could in any case have con-
voL. II.— 59 1931
§ 1580 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
sidered, had they otherwise known of it, would be unnatural and improbable.^
But with the final shaping of the Hearsay rule's limits, and the conscious
statement of specific exceptions, in the first half of the 1700s, and with the
progress and final settlement, in the same century, of the doctrine that the
jury could consider no information not presented to them as evidence in
court {post, § 1800), the use of common repute came to be limited to specific
excepted cases. The excepted cases thus surviving from the older loose
practice included at that time (1) land-boundaries and land-customary-rights
and verdicts in other litigation, (2) events of general history, (3) personal
character, and (4) marriage, and other facts of family history. Since that
time a few other isolated classes of facts — for example, insolvency — have
in various jurisdictions been treated as properly provable by reputation;
these instances, however, do not represent historically a continuous survival
of earlier practice, but a reasoned application of a general principle.
The precedents for these various groups of facts form for the most part
separate and independent series. Nevertheless, they all rest equally on a
more or less conscious recognition of a common and rationalized principle,
which in a broad way is found to be satisfied alike in all of them and to
justify the maintenance of the exceptions. This principle is the twofold
one already indicated {ante, § 1420) as the basis of all the exceptions to the
Hearsay rule, namely, the principle of Necessity and the principle of a Cir-
cumstantial Guarantee of Trustworthiness, (a) The necessity is here to be
found in the general dearth of other satisfactory evidence of the desired fact,
by reason of which we are thrown back upon reputation as a source of infor-
mation. In the exceptions for land boundaries and customs this necessity is
found to exist where the matter is an ancient one, and thus living witnesses
are not to be had. In the exceptions for character and marriage the neces-
sity lies in the usual difficulty of obtaining other evidence than reputation.
(&) The circumstances creating a fair trustworthiness are found when the
topic is such that the facts are likely to have been generally inquired about
and persons having personal knowledge have disclosed facts which have thus
been discussed in the community ; and thus the community's conclusion, if
any has been formed, is likely to be a trustworthy one. This, under different
conditions, is the common ground of trustworthiness for reputation on land
boundaries and customs, for events of general liistory, and for character and
marriage. There is therefore, on the whole, a certain underlying unity of
principle for all the recognized uses of reputation.
In a few jurisdictions, legislative enactments have attempted to adopt and
restate the first two branches of the exception ; but these statutory attempts
usually fail to distinguish the limitations of the different exceptions, and can
hardly be said to be successful.^
^ " It was natural," says Professor Thayer, tion, shonld be allowed to be offered to them by
"that what the Courts clearly recognized as a the statement of witnesses in court" (Cases on
proper basis for the jury's action, when they Kvidence, 1st ed., 420).
picked up their own information, i. e. reputation ' The statutes are collected post, § 1597.
or traditional declarations in matters of prescrip-
1932
§§ 1580-1626] KEPUTATION ABOUT LAND-EIGHTS. § 1582
A. Land-Boundaeies and Land-Customs.
1. The Necessity Principle.
§ 1582. Matter must be Ancient. In the effort to put a limit to the use
of reputation-evidence, and to phrase the conditions of necessity in which it
could be resorted to in default of better evidence, the element of antiquity
came to be made the fundamental characteristic of this branch of the
Exception. When the phrase about " best evidence " began to be invoked
(ante, § 1173), and its corollary was referred to, that the "best evidence"
might be dispensed with if it could not be had, one of the specific rules
sometimes associated with it was the present one ; that is to say, in ancient
matters of certain sorts the "best evidence" obtainable was reputation-
evidence. An " ancient " matter would ordinarily be a matter upon which
no living witnesses having personal knowledge were attainable ; so the repu-
tation is often predicated as coming merely from deceased persons, or deceased
old persons. The phrasing varies loosely ; but the common idea is the same,
namely, that it is to be the reputation of a past generation, and thus is to
deal with a matter of which there can be no witnesses of the present genera-
tion having a personal knowledge. The following passages illustrate the
general thought:
1811, Mansjield, C. J., in the Berkeley Peerage Case, 4 Camp. 415 : "The declarations
of deceased persons, who are supposed to have had a personal knowledge of the facts, and
to have stood quite disinterested, are received in evidence. In cases of general rights,
which depend upon immemorial usage, living witnesses can only speak of their own
knowledge to what has passed in their own time ; and to supply the deficiency, the law
receives the declarations of persons who are dead."
1855, Lord Campbell, C. J., in R. v. Bedfordshire, 4 E. & B. 535: "The admissibility
of the declarations of deceased persons in such eases is sanctioned, because these rights
and liabilities are generally of ancient and obscure origin, and may be acted on only at
distant intervals of time ; direct proof of their existence therefore ought not to be re-
quired."
1810, Swift, C. J., Evidence, 121 : "The law has therefore wisely rejected all hear-
say evidence, excepting where it is impossible in the nature of things to obtain any other.
. . . This happens in matters of long standing, where the witnesses who were knowing
to them are not in being. Such are . . . the ancient boundaries of land."
1860, Selden, J., in McKinnon v. Bliss, 21 N. Y. 218 : " The fact sought to be proved
being of too ancient a date to be proved by eye-witnesses, and not of a character to be
made a matter of public record, unless it could be proved by tradition there would seem
to be no mode in which it could be established. It is a universal rule, founded in neces-
sity, that the best evidence of which the nature of the case admits is always receivable."
In the United States the question came up most frequently with reference
to boundaries of land, and the special necessity of reputation-evidence in
such cases was often noticed :
1797, Per Curiam, in Montgomery v. Dickey, 2 Yeates 213 : "It must be obvious that
when the country becomes cleared and in a state of improvement, it is oftentimes difiicult
to trace the lines of a survey made in early times. The argument ex necessitate rei will
therefore apply."
1933
§ 1582 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LIII
1837, Tucker, C. J., in Harriman v. Brown, 8 Leigh 707 : " Questions of boundary, after
the lapse of many years, become of necessity questions of hearsay and reputation. For
boundaries are artificial, arbitrary, and often perishable ; and when a generation or two
have passed away, they cannot be established by the testimony of eye-witnesses."
"What, then, may to-day be said to be the results of this requirement, so far as
specific rules can be laid down ? The authorities of modern date are few,
owing perhaps in this country to the changes in the conditions of life and
the methods of administration of land-records in the past half-century, and it
is not easy to predict the exact form in which Courts may choose to apply
the principle. But the following rules may be ventured :
(1) The matter to he proved must be ancient, i. e. of a past generation.
The custom, boundary, etc., must either be a former one, or, if it is still in
existence, its existence in a previous generation must be the subject with
which the reputation is concerned :
1855, Baltzell, C. J., in Daggett v. Willey, 6 Fla. 511 : "Reputation or hearsay, taken
in connection with other evidence, is entitled to respect in cases of boundary when the
lapse of time is so great as to render it difficult, if not impossible, to prove the boundary
by the existence of the primitive landmarks or other evidence than that of hearsay." ^
(2) The reputation offered must also be ancient, i. e. of a past generation.^
(3) If the reputation is shown by means of the reported statements of
individuals (^post, § 1584), the persons whose statements are reported must
be shown to be deceased?
2. The Circumstantial Guarantee of Trustwrorthiness.
§ 1583. General Principle; Reputation as Trustiworthy. The element here
operating to supply a fair degree of trustworthiness is the third already
noticed (ante, § 1422), namely, the consideration that the prolonged and
constant exposure of a condition of things to observation and discussion by a
whole community will in certain cases sift the possible errors and will bring the
resulting belief down to us in a residual form of fair trustworthiness. These
conditions are usually found where the matter is one which in its nature
affects the common interests of a number of persons in the same locality, and
thus necessarily becomes the subject of active, general, and intelligent dis-
cussion ; so that whenever a single and definite consensus lias been reached
in the shape of common reputation, it may be supposed to have considerable
evidential value. This principle underlies the willingness of the Courts to
give credit to such a reputation in all the branches of the present Exception,
and has often been stated specifically for this branch, though sometimes more
or less imperfectly ; the passages quoted from Lord Campbell and Mr. Justice
Loomis express it in a form which leaves nothing to be desired :
^ Accord: 1886, Clark v. Hills, 67 Tex. 152, shown ; antiquity is sufficient "without enquir-
2. S. W. 356. ing as to whether the parties . . . are living or
2 1852, Adams v. Stanyan, 24 N. H. 412 dead ") ; 1872, Shutte v. Thompson, 15 Wall.
1862, Dobsou ». Finley, 8 Jones L. 161.
495, 499 (a call in a grant of B. in 1798, admit- » 1843, R, v. Milton, 1 C. & K. 62.
ted ; death of B. and his surveyor need not be Compare the statutes cited post, § 1597.
1934
§§ 1580-1626] KEPUTATION ABOUT LAND-EIGHTS. § 1584
1837, Wright v. Talham, 7 A. & E. 358 ; on appeal, in 5 CI. & F. 720 : Cottman, J. :
"Where boundary is proved by reputation, what is the guarantee for sincerity ? " Mr.
Starkie, of counsel : " The publicity of the transaction and the general interest in the fact
being rightly ascertained. . . . Coltman, J. : " The principle on which I conceive the ex-
ception [of reputation as to public rights] to rest is this, — that the reputation can hardly
exist without the concurrence of many parties interested to investigate the subject, and
such concurrence is presumptive evidence of the existence of an ancient right, of which in
most cases direct proof can no longer be given." Alderson, B. : "There are, no doubt,
exceptions to this rule, in which hearsay evidence is admissible. One such exception is
to be found in the case of public rights. There the general interest which belongs to the
subject would lead to immediate contradiction from others, unless the statement proved
were true ; and the public nature of the right excludes the probability of individual bias
and makes the sanction of an oath less necessary."
1855, Campbell, L. C. J., in R. v. Bedfordshire, 4 E. & B. 535; "The admissibility of
the declarations of deceased persons in such cases is sanctioned . . . because in local
matters in which the community are interested all persons living in the neighborhood are
likely to be conversant ; because, common rights and liabilities being naturally talked
of in public, what is dropped in conversation respecting them may be j)resumed to be
true ; because conflicting interests would lead to contradiction from others if the state-
ments were false, and thus a trustworthy reputation may arise from the concurrence
of many parties unconnected with each other who are all interested in investigating the
subject."
1881, Loomis, J., in Southwest School District v. Williams, 48 Conn. 507 : " The law does
not dispense with the sanction of an oath and the test of cross-examination as a pre-
requisite for the admission of verbal testimony, unless it discovers in the nature of the
case some other sanction or test deemed equivalent for ascertaining the truth. The mat-
ters included in the class under consideration are such that many persons are deemed
cognizant of them and interested in their truth, so that there is neither the ability nor
the temptation to misrepresent that exists in other cases ; and the matters are presumably
the subject of frequent discussion and criticism, which accomplishes in a manner the pur-
pose of a cross-examination. . . . After passing such an ordeal, it is reasonably safe to
accept the result as an established fact."
This being the well-accepted foundation for receiving a common reputa-
tion as trustworthy, certain limitations are deducible as a necessary con-
sequence.
§ 1584. Reputation, not Individual Assertion. What is offered must be in
effect a reputation, not the mere assertion of an individual. This follows
from the nature of the foregoing principle, and is the thought running through
the language of all the judges. But reputation is made up of and is often
learned through the assertions of individuals, and it is therefore constantly
necessary to distinguish between (a) assertions involving mere individual
credit and (6) assertions involving a community-reputation. The common
form of question put to a reputation-witness was : " What have you heard
old men, now deceased, say as to the reputation on this subject?" The
judges constantly speak of "reputation from deceased persons."^ Thus,
though in form the information may be merely what deceased persons have
1 £?.fr., 1813, Weeks K. Sparke,! M.&S. 689 way, 10 East 120 ("Eeputation is no other
("Evidence is to be admitted from old persons than the hear.say of those who may be supposed
... of what they have heard other persons, of to have been acquainted with the fact, handed
the same neighborhood, who are deceased, say down from one to another") ; see also the quo
respecting the right") ; 1808, liigham w. Kidg- tations ante, § 1582.
19:15
§ 1581: EXCEPTIONS TO THE HEAESAY KULE. [Chap. LIII
been heard to say about a custom, yet in effect it comes or ought to come
from them as a statement of the reputation.^
This aspect of the rule is frequently found stated in the form " the repu-
tation must be general " ; in other words, the hearsay statement " I know the
right or custom to be such-and-such " is not receivable ; but " I understand
the general acceptance of the custom by the community to be such-and-such ''
is admissible. The deceased individual declarant is merely the mouthpiece
of the reputation. Whenever, therefore, individual declarations are ofi'ered,
they must appear to be, in the words O'f Baron Wood, "the result of a
received reputation " :
1822, Wood, B., in Moseley v. Davies, 11 Price 180: "It must be pi-oved that the
declarations establishing the reputation, and the acts done [by the community] in con-
sequence, were the result of a received reputation. . . . The principal use of evidence of
this sort is to show that the act done or declaration made was not a new thought adapted
to serve some particular occasion, but the consequence of a received notion of the exist-
ence of a custom requiring the performance of the act, and accounting for or explaining
it by such declaration. Such evidence should always be general."
1837, Denman, L. C. J., in R. v. Bliss, 7 A. & E. 550 (rejecting testimony that R., now
deceased, had planted a willow in a certain spot to show where the boundary had been of
a way alleged to be public) : " He does not assert that he has heard old people say what
was the public road ; but he plants a tree and asserts that the boundary of the road is at
that point. It is the mere allegation of a fact by an individual. . . . That is, he knew
it to be so from what he had himself observed, and not from reputation." ^
It follows, conversely, that the form in which the reputation is presented is
immaterial ; whatever form it takes — individual writings, maps, leases, or
the like — suffices if in truth it represents common repute ; this application
of the principle is later examined {post, § 1592). .
But this exclusion of individual assertion, whenever it does not serve as
the vehicle of reputation, applies of course only where the evidence is offered
under the present Exception. Under the Exception for Private Boundaries,
already examined {ante, § 1563), such declarations are in many American
jurisdictions unquestionably admissible, merely as individual statements, and
not associated with reputation. That Exception, historically, was mainly de-
rived from the present one ; but each now has its separate existence and
peculiar limitations.
§ 1585. Reputation not as to Specific Acta. Furthermore, where a cus-
tom or right is to be shown, the reputation must be as to the custom or
light itself, and not as to particular occasions of its exercise. It is obvious
that as to such particular occasions or acts of its exercise there can be no
fair opportunity for a reputation to arise. It can arise only as to the exist-
2 As well put by Knox, J., in Bender i'. Drinkwater ». Porter, 2 C. & K. 182 ; 1844, Earl
Pitzer, 27 Pa. 335, " The declaration did not of Carnarvon v. Villebois, 13 M. & W. 332 ;
amount to general reputation; for one man's 1903, Brocklehank ». Thompson, 2 Ch. 344, 352
declaration of the existence of a fact does not (a certain memorandum, excluded) ; Can.: 1885,
prove that the allegation is generally reputed to Vankoughnet v. Denison, 1 1 Ont. App. 699, 707
be well founded." " (reputation, as indicated by a city map, appar-
^ See also the following instances : Eng. : enily not admitted to show the location and ex-
1831, Davies v. Morgan, 1 C. & J. 590; 1835, tent of a public square).
1936
§§ 1580-1626] EEPUTATION ABOUT LAND-EIGHTS. § 1586
ence or validity of the right or custom in general. There may legitimately
be a common reputation as to whether (for example) a general duty existed
for the townspeople of Wilton to pay a fee at a certain tollgate ; but not
whether John Doe paid it on a' particular occasion. It is sometimes said,
misleadingly, that the reputation cannot be received as to a particular fact ; ^
but this expression is inconclusive, because the line of a certain boundary is
a " particular fact." This phrase, so far as used, has meant that, in proof of
local customs, hearsay as to a particular individual act in exercise of the
general custom would not be received. The latter form of phrasing is the
more accurate (as used by Mr. Peake, infra) ; but, subject to explanation,
the loose phrase occasionally found in judicial language need not mislead :
1801, Mr. Peake, Evidence, 13: "A witness may be permitted to state what he has
heard from dead persons respecting the reputation of the right ; but not to state facts of
the exercise of it which the dead persons said they had seen."
1810, Macdonald, C. B., in Harwood v. Sims, Wightw. 112 (admitting evidence of rep-
utation from deceased persons as to a tithe payment): '' I take this to be the distinction
as to evidence of reputation : if they confine it to the fact of payment, it would not be
evidence ; unless the tradition that came with it was a reputation that that had always
been the case."
1800, Muter, C. J., in Cherry y. Boyd, Litt. Sel. Cas. 8: " Such hearsay evidence [of
general customs and the common repute about them] is safe, because if not true, it can
be disproved by other evidence of the same kind. But even in these cases hearsay is re-
stricted from being evidence of particular facts; because in such instances, although the
evidence should be false, yet counter evidence could not be expected." ^
§ 1586. Reputation must relate only to Matters of General Interest. The
question next arises, About what sorts of matters may reputation be received
as trustworthy ? The principle already examined (ante, § 1583) prescribes
the answer, — that the matter must be in its nature one about which a trust-
worthy common reputation could fairly arise, i. e. about which an active, con-
stant, and intelligent discussion by the members of a community would
result in a residuum of fairly trustworthy conclusions. As a rough-and-
ready test, we may thus say that the matter should be one of public, or \
general, or public and general, interest ; and this is the common phrasing ;
though it varies thus loosely. But this is still only a rule of thumb. To
decide difficult cases it is necessary still to 'seek the living principle, and ask
anew whether the matter is of such general interest to the community that
by the thorough sifting of active, constant, and intelligent discussion a fairly
trustworthy reputation is likely to arise. That this is the method actually
followed by the Courts in ruling upon doubtful cases, and that the applica-
tion of the principle is not narrowly to be made merely by defining the set
terms "public" or "general," is sQcn in the following passages:
1 1837, Coleridge, J., referring to the evi- ' Accord: 1805, Nicholls v. Parker, 14 East
denee excluded in B. v. Bliss, quoted anle, § 1584 331 (evidence admitted of what old persons had
(" It is a rule that evidence of,reputation must said concerning the boundaries of the parishes
be confined to general matters and not touch and manors ; though not as to particular facts
particular facts," i. e. the act of planting the or transactions) ; 1793, Outram v. Morewood,
willow). 5 T. E. 122 ; 1836, Ellicott v. Pearl, 10 Pet. 437.
1937
§ 1586 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
1835, R. V. Antrobus, 2 A. & E. 793 (evidence was rejected of reputation as to an ex-
emption of the sheriffs of Chester county from executing criminals) ; Counsel for defend-
ant : " The proper criterion as to the admissibility of reputation is whether the custom
if it existed would be matter of public discourse." Denman, L. C. J. : "Reputation is
admitted where a public interest ia concerned; but I cannot see how the public are in-
terested in the question which sheriff is to perform this duty."
1855, Campbell, L. C. J., in R. v. Bedfordshire, 4 E. & B. 535 (admitting reputation
whether the county or private owners were bound to repair a bridge) : " Let us now upon
these principles examine whether . . . evidence of reputation ought to be admitted. It
does involve matter of private right. . . . But does it not likewise relate to matters of
public and general interest within the received meaning of the words ? . . . [After show-
ing the comrauuity's interest in the question, and using the language quoted ante, § 1583],
the question therefore is almost sure to be discussed in the neighborhood, and a true repu-
tation upon the subject is likely to prevail."
1881, Loomit, J., in Southwest School District v. Williams, 48 Conn. 507 (after stating
the general reason as above, and using the language quoted an(e, §1583): "But if the
fact to be proved is a particular date, [here, of the existence of a school-house,] though
connected incidentally with a public matter, it is easy to see that it could not stand out
as a salient fact for contemporaneous criticism and discussiou so as to furnish any guar-
anty for its correctness."
In the application of this general principle the typical classes of facts re-
garded as provable by reputation were boundaries of public land-divisions
and customs affecting the rights and liabilities of the community in some
governmental subdivision, — roughly speaking, public land boundaries and
customs. But these kinds of facts, as the above quotations indicate, were
merely typical and representative, not definitive. Sundry other facts of vari-
ous sorts were also thus provable. In the following passage is a sufficiently
full and correct enumeration of the settled practice in England :
1895, Seymour, J., in Robinson v. Dewhurst, 15 C. C. A. 466, 68 Fed. 336 : " The excep-
tion raises a question regarding that exception to the general rule excluding hearsay
evidence which permits such evidence to be given, under certain limitations, in cases of
ancient boundaries. The exception, as it originated in the English courts, was confined
to such boundaries as were matters of public concern, and was part of a larger exception
to the rule. On questions respecting the existence of manors; manorial customs; cus-
toms of mining in particular districts ; a parochial modus ; a boundary between counties,
parishes, or manors; the limits of a town; a right of common; a prescriptive liability to
repair bridges; the jurisdiction of certain courts, — matters in which the public is con-
cerned, as having a community of interest, from residing in one neighborhood, or being
entitled to the same privileges, or subject to the same liabilities, — common reputation
and the declarations of deceased persons are received, if made, ante litem motam, by per-
sons in a position to be properly cognizant of the facts." ^
1 In the following additional cases reputa- 1 Esp. 325 (right of nomination to the place of
tion-evidence was admitted : 1899, Evans v. schoolmaster) ; 1867, Hall u. Mayo, 97 Mass.
Merthyr Tydfil, 1 Ch. 241 (whether a piece of 417 (possession or habitancy of a house) ; 1875,
land was subject to commonable rights); 1901, Adams «. Swansea, 116 id. 596 (same); 1882,
Klinkner ». Schmidt, 114 la. 695, 87 N. W. 661 Boston Water Power Co. v. Hanlon, 132 id. 483
(street boundary) ; 1883, State w. Vale Mills, 63 (same). The applicability of an Indian name
N. H. 4 (the former line of the road which the to a given white person in a grant in a treaty
plaintiff was charged with obstructing) ; 1874, was held not provable by hearsay, because the
Cox I). State, 41 Tex. 4 (county lines) ; 1824, fact of identity would not " be likely to ex-
Ralston «. Miller, 3 Rand. 49 (street lines). In cite public interest," in Stockton v. Williams,
the following cases additional reputation-evi- 1 Dougl. Mich. 568 (1845).
deuce was re/ecied; 1795, Withnell u. Gartham, The following ruling is anomalous: 1900,
1938
§§ 1580-1626] REPUTATION ABOUT LAND-RIGHTS. . § 1587
§ 1587. Same : Application of the Rule to Private Boundaries, Title, or
Possession. In the application of the foregoing principle, the subject of
special controversy has been the ownership — in particular, the boundaries
— of private property. May reputation be admitted of the boundary-loca-
tions of private property ? In Englavd the answer has been in the negative :
1811, Kenyan, L. C. J., in Morewood v. Wood, 14 East 329 : " Evidence of reputation
upon general points is receivable because, all mankind being interested, it is natural to
suppose that they may be conversant vfitb the subjects and that they should discourse
together about them, having all the same means of information. But hov\r can this
apply to private titles ? . . . How is it possible for strangers to know anything of what
concerns only these private titles ? " ^
This conclusion was reached by a reasoned consideration of the principle on
■which reputation-evidence rests. But the correctness of the application may
be questioned ; for if such evidence may be offered to show customs and
boundaries of a private manor, boundaries of a parish, and tithe-duties,^ the
principle may well cover any other property-rights in which a number are
interested in general inquiry and discussion, whether the right is in substan-
tive law called a public or a private one. Thus, in Weeks v. Sparke, decided
shortly after Morewood v. Wood, supra, the argument was accepted that
any fixed and (for this purpose) arbitrary distinction between " public " and
" private " rights should be repudiated, and a flexible test be applied in each
case, — this test being whether the matter affected the interests of a large
number of persons :
181-3, Weeks v. Sparke, 1 M. & S. 690 (a right of common being in issue), Bayley, J. :
" I take it that where the term ' public right ' is used, it does not mean ' public ' in the
literal sense, but is synonymous with ' general ' — , that is, what concerns a multitude of
persons; Dampier, 3 . : "[Reputation-evidence] has been extended to other rights which
strictly cannot be called public, such as manors, parishes, and a modus, which comes the
nearest to this case. That, strictly speaking, is a private right, but has been considered
as public, as regards the admissibility of this species of evidence, because it affects a
large number of occupiers within a district."
This reasoning might have led ultimately in England to the admission of
reputation-evidence for private-property matters ; but the case was practically
repudiated by Baron Parke, in 1850,* and subsequent English practice has
checked all further advances. The rule may there be said to be determined
by the distinction (for this purpose more or less arbitrary) between " public "
and " private " property-rights ; * i. e. the " pubhc interest " which is required
to exist is taken as meaning the legal liability or right which is vested in each
Shepherd v. Turner, — Cal. — , 62 Pac. 106 rate rights, each being private, . . . unless the
(reputation not admitted to show a road a public proposition can be supported that, because there
way). are many such rights, the rights have a public
^Accord: 1811, Doe i>. Thomas, 14 East .323. character. We think this position caunot be
^ 1819, Stell V. Prickett, 2 Stark. 466, Ab- maintained. It is impossible to say in such a
bott, C. J. ; and cases infra, n. 3, and post, case where the dividing point is. What is the
§ 1592. number of rights which is to cause their nature
' 1850, Dunraven v. Llewellyn, 13 Q. B. 809 to be changed and to give them a public charac-
(a right of common for individuals, not for the ter ? . . . The number of these private rights
community, was involved : Parke, B. : " Kepu- does not make them to be of a public nature ") ;
tation is not admissible in the case of such sepa- 1 855, B. v. Bedfordshire, 4 E. & B. 535.
1939
§ 1587 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LIU
member of the community as such, — not as meaning merely a motive of any
sort stimulating the mass of the community to a concern in the matter.
In the United States the result has been otherwise. The earliest English
practice had clearly been to admit reputation as to private titles,* and it is
therefore natural to find, on questions of private boundary, that reputation
was regularly admitted without question in the early American cases.^
Then, when the English cases of the early 1800s became known to our judges,
and the question was argued on its merits as a matter of principle, the
decision was reached — entirely in harmony with the conditions of life at
the time — that the rule ought to admit reputation-evidence of the
landmarks of private title :
1837, Tucker, P., in Harriman v. Brown, 8 Leigh 708 : " Because we have not manors,
shall we therefore lose the benefit of the rule which considers boundary as matter of repu-
tation and permits hearsay evidence of its locality ? If a like state of things exists among
us, if the principle will be found to apply in its utmost strictness, shall we reject the evi-
dence because the case is not identical? By no means. . . . [After quoting Lord
Kenyon's language, supra,'] If reputation is admissible to establish the boundaries of a
manor because all the tenants of a manor are interested therein and naturally conversant
about the boundary, and may be presumed to discourse together about it, what shall we
say in the case of our wild lands, which were covered with early adventurers whose chief
concern was to make themselves acquainted with the lines and corners of all around them ?
. . . Every one knows that such subjects were not only the familiar topics of conversation,
but that they were the all-absoi'bing topics. I will venture to conjecture that for one dis-
cussion in private conversation about the boundaries of an English manor, there have
been a hundred animated and interested debates about the situation of a corner tree in
our western counties. I take it therefore that every motive for the admission of hearsay
testiinony as to boundary in case of a manor applies with equal force to its admission in
questions of boundary with us."
1860, Field, C. J., in Morton v. Folger, 15 Cal. 279 : " In this country the admissibility
of this kind of evidence . . . has been uniformly maintained when the tract originally
surveyed was large, and was subsequently subdivided into numerous farms, the boundary
of the original tract serving as a boundary of the several farms. In cases of this kind,
the principle upon which the evidence is received has been regarded as similar to that
which relates to boundaries of a manor or parish."
1860, Selden, J., in McKinnon v. Bliss, 21 N. Y. 218 : " That hearsay or reputation is
admissible as evidence . . . upon questions respecting the boundaries of lands, is a
familiar doctrine. But there are no doubt other cases in which the same kind of evidence
may be received for the purpose of establishing a mere private right, when the fact to be
proved is one of a ^uasi-public nature, that is, one which interests a multitude of people,
or an entire community. . . . The Royal Grant, as it is called, is an extensive tract,
embracing an entire township and parts of several others ; and evei-ything relating to the
original document upon which the title depended would necessarily affect the interests of
every occupant of the tract " ; and common report as to the disposition of the patent
would be admissible.
The result has been that, except in Maine and Massachusetts,® it is now
* Thayer,Cases on Evidence, 1st ed., 421, note. Massachusetts practice). In an early case in
" 1823, Dane's Abr. Ill, 397 (citing some Kentucky, no longer law, it was excluded for the
cases before 1800). unique reason that the matter did not lie in parol
5 1853, Chapman v. Twitchell, 37 Me. 62 ; and could not be proved by parol ; 1800, Cherry
1867, Hall IV Mayo, 97 Mass. 417 ; 187.5, Long v. Boyd, Litt. Sel. Cas. 8.
V. Colton, 116 id. 416 (abandoning the early
1910
1580-16261 EEPUTATION ABOUT LAND-EIGHTS.
§ 1587
everywhere accepted in the United States as a legitimate application of
the general principle, that reputation, so far as it definitely exists, may be
admissible to prove the location of private bouudariesJ But this appli-
cation of the principle is confined to reputation of boundaries. That title
cannot be so evidenced is generally conceded.^ There may however be
cases in which ^possession should be thus provable, where adverse possession
is to be shown.®
It must be noted that, even in those jurisdictions where public boundaries
alone are thus provable, the fact that the private boundary is alleged to be
identical with the public one does not prevent the use of reputation to prove
the latter, the identity being then otherwise shown. ^^
' To the following, add the statutes cited
post, § 1597 : 1873, Shook v. Pate, 50 Ala. 92;
1897, Taylor u. Fombv, 116 id. 621, 22 So. 910 ;
1833, Higley v. Bidwell, 9 Conn. 451 ; 1839,
Wooster «. Butler, 13 id. 315 ; 1845, Kinney v.
Farnsworth, 17 id. 363 ; 1855, Daggett v. Willey,
6 Fla. 511 ; 1881, Holbrook v. Debo, 99 111. 385;
1819, Smith v. Prewit, 2 A. K. Marsh. 158 ; 1822,
Smith V. Nowells, 2 Litt. 160; 1894, Thoen v.
Eoche, 57 Minn. 135, 139, 58 N. W. 686 (allow-
able for U. S. survey lines ; acceptance of U. S.
doctrine undecided) ; 1827, Shepherd v. Thomp-
son, 4 N. H. 215 ; 1886, Curtis v. Aaronson, 49
N. J. L. 78 ; 1795, Standen v. Bains, 1 Hayw.
238 ; 1820, Tate v. Southard, 1 Hawks 47 ; 1825,
Taylor v. Shufford, 4 id. 132 ; 1838, Mendenhall
V. Cassella, 3 Dev. & B. 49, 51 (rejecting it here
as too indefinite) ; 1896, Shaffer v. Gaynor, J 17
N. C. 15, 23 S. E. 154 (but where it relates not
merely to landmarks or lives, but to a location
being within a certain grant, evidence of " muni-
ments of title" must accompany it); 1886,
Sexton V. HoUis, 26 S. C. 231, 236, 1 S. E. 893 ;
1866, Stroud v. Springfield, 28 Tex. 666 ; 1886,
Clark V. Hills, 67 id. 152, 2 S. W. 356, semUe ;
1818, Conn v. Penn, 1 Pet. C. C. 511; 1887.
Clement w. Packer, 125 U. S. 321, 8 Sup. 907.
The reason of Mr. J. Story in EUicot v. Pearl,
10 Pet. 435 (1836), given for a contrary view,
that in regard to private rights the acts of pos-
session and assertion are capable of direct proof,
but in public rights the acts of people not in
privity with each other " cannot be explained to
be in furtherance of a common public right," is
vague, and, so far as intelligible, is without
support.
' 1848, Moore v. Jones, 13 Ala. 303 (that an
occupier was a lessee only) ; 1889, Eoss v. Good-
win, 88 id. 390, 393, 396, 6 So. 682 (title by pre-
scription) ; 1896, Goodson v. Brothers, 111 id.
589, 20 So. 443 (ejectment) ; 1839, South School
District V. Blakeslee, 13 Conn. 227, 235 (repu-
tation of a house as " J. A.'s school-house,"
excluded ; " a man's general character may be
proved by reputation, but not his title to real
estate"); 1836, Green w. Chelsea, 24 Pick. 71,
75, 80; 1863, Howland v. Crocker, 7 All. 1,53
(title by adverse possession-; that apiece of land
was known as "the Barney Crocker lot," not
admitted to show title in him) ; 1886, Sexton v,
HoUis, 26 S. C. 231, 235, 1 S. E. 893 ; 1899,
Hiers „. Risher, 54 id. 405, 32 S. E. 509.
1941
Contra : Cal. C. C. P. 1872, § 1693 (it is to be
presumed " that a person is the owner of prop-
erty, from exercising acts of ownership over it,
or from common reputation of his ownership ").
' Admitted: 1895, Vernon Irrig. Co. o. Los
Angeles, 106- Cal. 237, 39 Pac. 762 (reputation
admitted to show an ancient claim of ownership
and actual control by the city) ; 1830, Jnckson v.
Miller, 6 Wend. 228 (that a lot of land was com-
monly known by the name of an individual, — as
" Smith's Lot," or " The Duke's P''arm," or " The
Queen's Farm," was admitted to show that the
person in question was at the time in occupation,
personally or'by agent, of the property) ; 1847,
Bogardns v. Trinity Church, 4 Sandf. Ch. 633,
732 (same). Excluded : 1852, Benje v. Creagh,
21 Ala. 151, 156; 1888, Woodstock Iron Co. v.
Eoberts, 87 id. 436, 442, 6 So. 349 ; 1898, Carter
V. Clark, 92 Me. 225, 42 Atl. 398.
But reputation may be otherwise admissible,
in an issue of title by adverse possession, under
the principle of § 254, ante, as evidence of the
probable knowledge by the other party of the
existence of the adverse claim, and therefore of
acquiescence.
" 1837, Thomas «. Jenkins, 6 A. & E. 525
(the boundary of a farm being in issue, and its
identity with the hamlet-boundary being testi-
fied to, reputation as to the hamlet-boundary was
admitted; Coleridge, J. : " The objection comes
to this, that evidence shall not be given as to
the boundary of a hamlet in the same mode as
on other occasions because the proof is in the
particular ease only subsidiary. But I never
heard that a fact was not to be proved in tlie
same manner, when subsidiary, as when it is the
very matter in issue ") ; 1893, MuUaney v. Duffy,
145 HI. 559, 564, 33 N. E. 750 (where a private
depends on a public boundary, the latter may
be shown by reputation) ; 1839, Abington j;. N.
Bridgewater, 23 Pick. 174 (admitting declara-
tions as to a boundary line with reference to
proving, not a public right, but the situation of
a house where a pauper lived) ; 1879, Drury v.
Midland R. Co, 127 Mass. 581 (allowing repu-
tation as evidence of the location of a creek
" notorious and public in its nature," which in
one view of the case was a dividing line between
counties, and in another was in issue as a private
boundary). Contra, semhie : 1894, R. ;■. Berger,
1 Q. B. 823, 827 (obstructing a higln\ay ; dis-
pute as to boundary ; old map held admissible
§ 1588 EXCEPTI02TS TO THE HEARSAY EULE. [Chap. LIII
§ 1588. Reputation as (1) Post Litem Motam, or (2) from Interested Per-
sons, or (3) Favoring a Right. Certain additional limitations have been sug-
gested, as affecting the trustworthiness of the reputation ; but only one of
them has received any sanction.
(1) The limitation, already noticed as obtaining in other Hearsay excep-
tions, that the reputation, to be admissible, must have arisen ante litem
motam, is well established ; and its propriety cannot be doubted.-'
(2) It was once argued that one's interest as a member of the community
would involve bias, and heace statements of reputation as to a customary
right in a community, coming from a deceased member of the community,
could not be received. But such a declarant speaks merely of the current
and undisputed reputation, and moreover is usually not personally inter-
ested in any important degree ; and the argument against admission has not
prevailed.^
(3) For the same reason, it is immaterial whether the reputation /ai;ors or
disparages the existence of the custom or boundary ; because, although
members of the community may be interested and biassed in favor of a public
right, nevertheless there is almost invariably an equal opposite interest in
many as individuals in favor of a private claim, excluding the public one ; so
that the reputation, as it finally settles down in a definite form, represents
the result of conflicting claims, and not merely a one-sided opinion.^
2. Testimonial Qualifications, and Other Independent Principles of Evidence.
§ 1591. Reputation must come from a Competent Source ; Reputation in
Another District. The principle that the witness must appear to have been
in a position to obtain adequate knowledge (ante, § 653) finds an application
to the present Exception. The reputation, to be admissible, must obviously
have been formed among a class of persons who were in a position to have
sound sources of information and to contribute intelligently to the forma-
tion of the reputation :
1813, LeBlanc, J., in Weeks v. Sparke, 1 M. & S. 689 : " The only evidence of reputa-
tion which was received was that from persons connected with the district, . . . such
evidence being confined to what old persons who were in a situation to know what these
rights are have been heard to say concerning them." ^
to show that land was a highway, but not to Duke of Devonshire v. Neill, L. R. Ire. 2 Exch.
show the bouudaries ; unsound). 156.
"• Accord: 1805, NichoUs u. Parker, 14 East Compare the more fully developed definition
331, note; 1811, Mansfield, C. J., and Lord of /i's 7no'a under the Family History (Pedigree)
Redesdale, in Berkeley Peerage Case, 4 Camp, exception {ante, § 1483).
416, 421; 1813, R. v. Colton, 3 id. 44, Dam- ^ 1810, Harwood «. Sims, Wightw. 112; 1822,
pier, J. ; 1830, Richards v. Bassett, 10 B. cS> C. Moseley v. Davies, 11 Price 175.
661 ; 1832, Duke of Newcastle v. Broxtowe, 4 ' 1835, Drinkwater b. Porter, 2 C. & K. 182;
B. & Ad. 279; 1852, Adams v. Stanyan, 24 1830, Russell ». Stocking, 8 Conn. 240.
N. H. 412; 1902, Westfelt v. Adams, 131 N. C. ^ In the following case the ruling was too
379, 42 S. B. 823 (reputation after 1886, not ad- strict; the knowledge might have been pre-
mitted in the trial of an action begun in 1891) ; sumed : 1854, Hammond o. Bradstreet, 10 Ex.
1886, Clark v. Hills, 67 Tex. 152, 2 S. W. 356. 396 (a map of county boundaries from au old
Contra, for a verdict as renutation {post, § 1593) : survey by J. and W. K. was rejected).
1816, Freeman v. Phillipps, 4 M. & S. 491 ; 1877,
1942
§§ 1580-1626] REPUTATION ABOUT LAND-EIGHTS. § 1593
In particular, the reputation must be offered from the particular district or
the particular class of persons affected :
1835, Parhe, B., in Crease v. Barrett, 1 C. M. & R. 928 : " In cases of rights or customs
which are not, properly speaking, public but of a general nature and concern n multitude
of persons ... it seems that hearsay evidence is not admissible unless it is derived from
persons conversant with the neighborhood. . . . But where the right is really public — a
claim of highway, for instance — in which all the King's subjects are interested, it seems
difficult to say that there ought to be any such limitation. In a matter in which all are
concerned, reputation from any one appears to be receivable ; but of course it would be
almost worthless unless it came from persons who were shown to have some means of
knowledge, as by living in the neighborhood or frequently using the road in dispute." ^
§ 1592. Vehicle of Reputation ; Old Deeds, Leases, Maps, Surveys, etc. It
is of course immaterial what form the reputation takes. That it may come
in the shape of an individual's assertions, provided they genuinely purport
to represent reputation, has already been noticed {ante, § 1584) ; and many
other forms are to be recognized in the precedents. For example, the official
return of an assembly of the homage (or tenants of a manor), rehearsing
customs, fees, and the like, was always regarded as equivalent to a reputa-
tion among the tenants, and therefore as receivable.^ In the same way, old
maps 2 and old surveys^ so far as they have been used and resorted to by the
community in dealing with the land, may be taken as representing, after this
test of use and criticism, the settled reputation of the community as to the
correctness of the tenor of the map or the survey. So also, muniments of
private title, such as old deeds and leases,* may, in a given case, just as effect-
ually be the vehicle of reputation.^ The use of history-books in this way is
elsewhere considered (post, § 1598).
§ 1593. Same : Jury's Verdict as Reputation. That the verdict of a jury
may amount to a statement of reputation has often been maintained, and the
2 1849, Duke of Beaufort v. Smith, 4 Exch. question whether a deed has by reference incor-
467,469 (to prove a custom, an alleged survey porated a map, — not a question of evidence;
of 1650 by a jury of the manor was excluded ; compare §§ 1777, 1778, post (verbal acts),§§ 2464-
Parlse, B ; " The question is whether a jury of 2466, post (interpretation by usage),
the manor are not presumed to be acquainted * 1832, Henderson, C. J., in Sasseru. Herring,
with its customs, so as to bring the casu within 3 Dev. L. 342 : " We have also received private
the rule laid down in Crease v. Barrett " ; an- deeds and mesne conveyances . . . under the
swering in the negative); 18.52, Daniels. Wilkin, idea that they are common reputation. A forti-
7 Exch. 437; 1860, McKinnon v. Bliss, 21 N. Y. ori should grants from the State be admitted,
218, per Selden, J. for they are something more than the declara-
^ 1786, Goodwin v. Spray, 1 T. E. 473, tion of private individuals." Accord: 1819,
per Ashhurst, J. ; 1793, Beebe v. Parker, 5 White u. Lisle, 4 Madd. 223 ; 1829, Coombs v.
'I'- 1{- 14. Coether, 1 M. & M. 399; 1829, Plaxton v. Dare,
2 1843, R. V. Milton, 1 C. & K. 62 (a map of 10 B. & C. 19 (it was argued for admission that
parish boundaries made from information of " the fact recited in the leases . . . was equiva-
one old man) ; 1898, Taylor v. McGonigle, 120 lent to declarations made by the deceased land-
Cal. 123, 52 Pac. 159 ; 1852, Adams f. Stanvan, lords and the tenants ") ; 1829, Brett v. Beales,
24 N. H. 411 ; 1879, Drury w. Midland E. 'Co., 1 M. & M. 418 (a deed under the seals of the
127 Mass. 581 ; and cases cited passim in the University and Corporation of Cambrido-e) ;
foregoing sections. 1890, Weld v. Brooks, 152 Mass. 297, 305° 25
3 1816, Bullen v. Michel, 4 Dow 297 ; 1870, N. E. 719 (deed of 1860, between parties now
Smith ». Earl Brownlow, L. R. 2 Eq. 252; 1852, deceased, admitted as reputation to evidence
Adams v. Stanyan, 24 N. H. 411. _ "the existence and location of a public way ").
For maps and surveys, see also the exception Compare the use of old deeds as circumstantial
for deceased surveyors {ante, § 1570), and the evidence of possession {ante, § 157).
exception for ojficial surveyors {post, § 1665). = For perambulations as reputation-evidence.
Most rulings about maps involve merely the see ante, § 1 563. .
1943
§ 1593 EXCEPTIONS TO THE HEAESAY RULE. [Chap. LIII
original practice, where the matter was of a public nature, was to admit
verdicts upon this theory:
1801, Lawrence, J., ia Reed v. Jackson, 1 East 357 : " Reputation would have been
evidence as to the right of way in this case; a fortiori, therefore, the finding of twelve
men upon their oaths."
But the practice may be said not to have obtained in the United States, and
has now in effect been discredited in England. The truth is that it has
to-day no possible justification under the present Exception. Its allowance
up to the early part of the 1800s was merely "a relic of the time when a jury's
verdict was a conclusion upon their own knowledge." ^ The jury's verdict
did once represent the reputation of the neighborhood.^ But in the modern
practice neither a jury's verdict nor a judge's decree can well be regarded as
a vehicle of reputation in any true sense. In the first place, if the judge or
the jury were to be brought into court and asked, " What appeared to you to
be the reputation among the witnesses ? ", the answer might in some cases
involve reputation. But even here the difficulty is that neither judge nor
jury do come into court as sworn witnesses to reputation. Next, the state-
ment involved in a verdict or a decree does not necessarily or probably
involve an answer to the above question. The verdict or the decree may
have gone merely upon the preponderance of testimony; or it may have
taken an old deed or other document as of superior and controlling value ;
or there may have been no evidence at all that could amount to a reputation.
No doubt a previous verdict or decree should properly have an evidential
value which the present form of the Hearsay rule does not concede it ; but
it is certainly not to be forced into evidence under the present exception.
That its acceptance was anomalous in modern practice came to be per-
ceived in England in the middle of the century; it was admitted on prece-
dent and half-heartedly, as " a sort of reputation." ^ Finally, when in 1882
such evidence was again received, and by the House of Lords, it was not
under the Eeputation exception, or as hearsay at all under any exception,
but as a "verbal act" {post, § 1778), — i.e. not as testimonial assertion, but
as an act of possession in the course of the exercise of a public right by
the people of the neighborhood.* This seems to dispose of its use under
the present exception.
•■ Thayer, Cases on Evidence, 1st ed., 422; selves likely to know the matter. . . Tet
Preliminary Treatise, 90 ff., 168 ff. ; post, where a matter has been before a jury, the
§ 1800. verdict is generally given in evidence as a sort
^ 1840, Alderson, B., in Pira v. Curell, 6 of reputation, if I may so term it"; Coleridge,
JI. & W. 254 (answering the citation of earlier J.: "It is not precisely evidence of repnta-
cases) : "That was when the jury was sum- tion"); 1840, Pirn v. Curell, 6 M. & W. 266,
moned de vmneto, and their functions were less per Abinger, C. B.
limited than at present." * 1882, Neill v. Duke of Devonshire, L. R.
3 1838, Brisco v. Lomax, 8 A. & E. 211 8 App. Cas. 147 (Selborne, L. C. : "Such evi-
(Littledale, J. : " It is not reputation ; but it is dence, admissible in cases in which evidence
as good evidence as reputation " ; Patterson, J. : of reputation is received, is not itself in any
" Now it is certainly difficult to say that a ver- proper sense evidence of reputation. It really
diet can be received merely as evidence of stands upon a higher and a larger principle,
reputation ; for a jury are summoned from the especially in cases, like the present, of prescrip-
body of the county at large, and are not them- tion ; ... it comes within the category of res
1941
§§ 1580-1626] EEPUTATION ABOUT LAND-RIGHTS. § 1597
§ 1594. Same: Judicial Order or Decree, or Arbitrator's Award, as Repu-
tation. In connection with the earlier doctrine, just examined, that a jury's
verdict might be used as involving reputation, the attempt was sometimes
made to treat a judge's or arbitrator's order or award as also admissible in
the same way. But for the reasons just stated, as well as upon the principle
of lack of Knowledge (ante, § 1591), such a use of orders or decrees has
generally been repudiated.^
§ 1595. Negative Reputation. It would seem, on the analogy of other
instances (ante, §§ 1071, 1497, 1531, 1556, post, 1614), that an assertion
may be made by silence, and that therefore the absence of a reputation (i. e.,
the fact that no one in the region had ever heard of the right, custom, or
boundary being as alleged) should be admissible as a negative reputation.^
B. Events of General Histoe-y.
The general principles of this branch of the exception do not differ materi-
ally from those of the preceding one ; but the line of precedents is a separate
one, and the scope of application is in some respects broader; so that it seems
more profitable to regard it as a distinct branch of the exception.
§ 1597. Matter must be Ancient; Statutory Regulation. The principle of
necessity, allowing the use of this class of evidence, is the same as that
already examined (ante, § 1582), namely, the matter as to which the history
or other treatise is offered must be an ancient one, or one as to which it would
be unlikely that living witnesses could be obtained. In other words, it must
be a matter concerning a former generation.^ Statutory declaration of the
ffPstcB and of declarations accompanying acts. , . . they must, from the nature and character of
The effect of this evidence ... is eKtremely their offices alone, be presumed to have suffi-
strong to establish a state of possession and cient acquaintance with the subject to which
enjoyment of the fisheries"; Lord O'Hagan: their declarations relate"); 1839, Evans v.
" 1 think the proceedings were admissible, not Eees, 10 A. & E. 155 (Denman, L. C. J. : " [The
as evidence of reputation, which I agree they opinion of an arbitrator as to a boundary is]
are not, but of something higher and better formed not upon his own knowledge, as de-
than reputation, ... of the possession in fact elarations used by way of reputation commonly
at the time of the bills being filed of the several are ").
fishery. . . . Evidence of acts and proceedings In the following cases a chancellor's decree
with reference to the river generally — theleases, was thus admitted: 1838, Laybourn v. Crisp,
the covenants and reservations, the actions, 4 M. & W. 326, per Parke, B. ; 1877, Duke of
the judgments, the licenses, and the successful Devonshire v. Neill, L. R. Ire. 2 Exch. 1 53.
assertions of right under the patents — was ■• 1835, Drinkwater k. Porter, 2 C. & K. 1 82 ;
properly admitted"; Lord Blacliburu agreed 1842, Anglesey w. Hatherton, 10 M. & W. 239,
that the Court decree " is perhaps not properly 244, semUe.
evidence of reputation," but is "as strong or ^ 1833, Morris v. Lessees, 7 Pet. 558; 1871,
stronger than reputation ") ; 1869, HoUister v. Whiton v. Insurance Cos., 109 Mass. 31 (Apple-
Young, 42 Vt. 403, 407 (verdict in trespass or ton's American Cyclopedia, offered to prove that
ejectment as indicating a claim of title). a certain island was reputed to be a guano island,
1 1831, Rogers v. Wood, 2 B. & Ad. 256 was rejected because the facts were of recent oc-
(excluding a decree of court by certain judges, currence). The same result is reached in con-
offered as reputation ; " here the persons acting struing Code provisions: 1885, Gallagher ®. R.
as judges had no knowledge of the fact [i.e. Co., 67 Cal. 15, 6 Pac. 869 (McKee, J., constru-
the customary rights of a city] except what ing C. C. P. § 1936: "What are 'facts of
they d€rived in the course of that proceeding) ; general notoriety and interest ' ? We think the
1832, Duke of Newcastle v. Braxtowe, 4 id. 279 term stands [1 J for facts of a public nature,
(orders of sessions made by the justices of the either at home or abroad, not existing in the
peace assembled in sessions were admitted as memory of men, as contradistinguished from [2]
evidence of reputation as to a local custom, facts of a private nature existing witjiin the
because, per Parke, J., " though they were not knowledge of living men, and as to which they
proved to be resiants in the county or hundred, may be examined as witnesses ").
1945
§ 1597 EXCEPTIONS TO THE HEAESAY RULE. [Chap. LIII
rule, however, has sometimes ignored this, partly through a failure to dis-
criminate properly between the present exception, in this and the foregoing
branch, and that which has been created for Learned Treatises in general
{:post, § 1693).2
§ 1598. Matter must be of General Interest. When a treatise on history
is offered as embodying a reputation of the community upon the fact in ques-
tion, the treatise, in the first place, cannot be regarded as more than the
statement of the individual author, unless it is a work so widely known, so
long used, and so highly respected, that it can be said to represent the assent-
ing belief of the community. In the next place, the facts for which such an
opinion or reputation can be taken as trustworthy must (on the principle of
§ 1583, ante)^^ such facts as have been of interest to all members of the com-
munity as such, and therefore have been so likely to receive general and
intelligent discussion and examination by competent persons, that the com-
munity's received opinion on the subject cannot be supposed to have reached
the condition of definite decision until the matter had gone, in public belief,
beyond the stage of controversy and had become settled with fair finality.
This much of a general principle can be said to be beyond dispute. But for
the application of the principle, it seems impossible to say that any more
definite limitations have been accepted as law :
1696, Steyner v. Droitwich, Skinner 623, 1 Salk. 281 : " Camden's Britannia was offered in
Evidence to prove a Reputation Ninety-two years ago that Salt onght to be made only at
tlie three Pits of the Burgesses [of Droitwich] and that all others were excluded. And
it was said that the Sayings of antient Persons who are dead is always allowed, and this
amounts to as much as the saying of an old Man at least, and that Camden was a publick
Person, being Historiographer Royal, etc., and that a, Gravestone had been allowed as
Evidence. Sed non allocatur; for if one part of Camden be allowed, another part ought to
be, and if Camden, then another Historian as well as him, and there would not be any
certainty. . . . And the Court said that an History may be evidence of the general his-
tory of the Realm, but not of a particular Custom; and therefore secundum subjectam
materiam it may be good Evidence or not."
1833, Story, J., in Morris v. Lessees, 7 Pet. 558 : " Historical facts of general and public
notoriety may indeed be proved by reputation, and that reputation may be established by
historical works of known character and accuracy. But evidence of this sort is confined
... to cases whei-e from the nature of the transactions, or the remoteness of the period,
or the public and general i-eception of the facts, a just foundation is laid for general
confidence."
' Cal. C. C. P. 1872, § 1870, par. 11 ("com- whole community are supposeti to take interest
men reputatiou e.xisting previous to the con- and to have knowledge "); §5185 (" traditionary
troversy, respecting facts of a public or general evidencea,stoancientboundariesand landmarks,"
interest more than 30 years old, and in cases of admissible) ; Ida. Rev. St 1887, § 5990 (like Cal.
pedigree or boundary," is admissible); par. 12 C. C. P. § 1936); la. Code 1897, § 4618 (like
(" monuments and inscriptions in public places, as Cal. C. C. P. § 1936); Mont. C. C. P. 1895,
evidence of common reputation," is admissible) ; § 3146 (like Cal. C. C. P. § 1870) ; § 3227 (like
§ 1936 (" Historical works, books of science or Cal. C. C. P. § 1936); Nebr. Comp. St. 1899,
art, and published maps or charts, when made §5916 (like Cal. C. C. P. § 1936, substituting
by persons indifferent between the parties, are " or " for " and " in the last clause, and " pre-
prtmayacie evidence of facts of general notoriety sumptive'' for " prima facie") ; Or. C. C. P.
and interest"); Ga. Code 1895, § 5183 ("decla- 1892, § 706 (like Cal. C. C. P. § 1870) ; § 758
rations of deceased persons as to ancient rights, (like Cal. C. C. P. § 1936) ; Utah Eev. St. 1898,
made before litigation arose," admissible to § 3400 (like Cal. C. C. P. § 1936).
prove " matters of public interest in which the
1946
§§ 1580-1626] EEPUTATION OF EVENTS OF HISTORY. § 1599
1847, Sandford, V. C, in Bogardus v. Trinity Church, i Sandf. Ch. 724: "The state-
ments of historians of established merit . . . are from necessity received as evidence of
facts to which they relate, . . . restricted to facts of a public aud general nature."
1860, Selden, J., in McKinnon v. Bliss, 21 N. Y. 216: " Such evidence is only admis-
sible to prove facts of a general and public nature, and not those which concern individ-
uals and mere local communities. . . . History is admissible only to prove history, that is,
such facts as being of interest to a whole people are usually incorporated in a general
history of the state or nation." i
In some instances the principle has been applied too narrowly, for example,
in excluding county-histories ; ^ for on certain matters there may be a gene-
ral and settled county-reputation which will be quite as trustworthy as a
national reputation upon national matters. There should therefore be no
arbitrary line excluding local histories.
§ 1599. Discriminations ; (1) Judicial Notice ; (2) Scientific Treatises.
(1) The paucity of rulings upon this class of evidence is probably due to the
consideration that when a fact — for example, the date of Washington's birth
or of Lincoln's assassination — is one of such general interest as to render an
accepted historical treatise admissible upon the present principle, the fact is
also of such notoriety that it will be assumed as true by the Court, upon the
principles of Judicial Notice {post, § 2565). In such a case, if the judge is
actually not certain of the precise trutji as to the fact alleged, but it is of a
class capable of being judicially noticed, he may consult an accepted treatise
as the basis of his ruling {post, § 2569) ; and thus the treatise is in fact used
^ Other examples are as follows: England: bois and others' works, consulted as to the exisfc-
1672, St. Katherine's Hospital, 1 Vent. 151 ("It ence of slavery of Indians in America in the
was shewn out of Speed's Chronicles, produced 1700s); 1836, Com. w. Alburger, 1 Whart. 469,
in Court, that at that Time Queen Isabel was 473 (a letter of William Penn confirming a cer-
under great Calamity and Oppression, and what tain grant ; its mention " in Proud and various
was then determined against her was not so much other historical works " treated as sufiicient, the
from the Right of the Thing as the Iniquity of matter being ancient); 1869, Baird v. Kice,
the Times") ; 1682, Bronaker v. Atkyns, Skin- 63 Pa. 489,496 (in determining the ancient plan
ner 14 ("Speed's Chronicle was given in Evi- of London's streets, etc., so as to interpret Penn's
dence to prove the Death of Isabel, Qneen plan of Philadelphia, the following works were
IJowager to E. II; and though Maynard seemed consulted : Maitland's History of London, 1754 ;
to oppose it, and Dobbins said it was done by Bohu's Pictorial Handbook of London, 1854;
Consent; yet the Chief Justice said he knew not Great London Directory, 1855); 1811, Hadfield
what better Proof could he made. And Wallop v. Jameson, 2 Munf. 53, 71, per Tucker, J. (Ed-
said that in the Lords' House it was admitted by wards' History of the West Indies, used to show
them as good evidence in the Lord Bridgewater's the government of Hispaniola).
Case") ; 1684, L. C. J. Jeffreys, in La<ly Ivy's * 1334^ Evans v. Getting, 6 C. & P. 586 (to
Trial, 10 How. St. Tr. 555, 62S (rejecting a his- show the boundary between two counties, Brecon
tory offered to show the date of Charles V's ab- and Glamorgan, NlchoU's History of Brecknock-
dicatiou and Philip and Mary becoming king shire was offered; AUIerson, B. : "This is a
and queen of Spain, over a century before : " In- history of Brecknockshire. The writer of that
stead of records, the upshot is a little lousy his- history probably had the same interest in en-
tory ... Is a printed history, written by larging the boundaries of the county as an other
I know not who, an evidence in a court of inhabitant of it. It is not like a general history
law 'i ") ; 1718, Proceedings respecting the Edii- of Wales. I shall not receive it ; " the fault of
cation, etc., of the Royal Family, 15 How. St. Tr. this decision is that it seems to proceed upon the
1202, 1203, 1206, 1209 (the Judges drew up an principle that local interest excludes reputation,
opinion upon the King's prerogative in the — a principle seen ante, § 1589, to have been re-
matter, and cited precedents on the exercise of pudiated ; the above ruling largely influenced
the prerogative from Rymer's Foedera, Lord the two ensuing); 1860, McKinnon v. Bliss, 21
Clarendon 8 History, Cotton's Record, Kennett's N. Y. 216 (rejecting Benton's History of Her-
History of England, Burnet's History of the kimer Co.) ; 1887, Roe v. Strong, 107 id. 356.
Reformation) ; United States : 1834, Marguerite 14 N. E, 294 (rejecting Thompson's History of
V. Cliouteau, 3 Mo. 540, 555 (DaPratz, Barbe Mar- Long Island).
VOL. II.— 60 1947
§ 1599 EXCEPTIONS TO THE HEAESAY EULE. [Chap. LIII
and trusted without being offered formally in evidence to the jury. An
equivalent result is by indirection attained ; and it can hardly be doubted
that, while in practice little inconvenience is felt, yet in theory there is a
lurking inconsistency.
(2) In a few jurisdictions, by way of a special exception, the use of scien-
tific treatises in evidence has, with certain limitations, been sanctioned ( post,
§ 1690) ; so that an historical treatise not admissible under this exception
might be receivable under that one. Nevertheless, the modern judicial ten-
dency has been to construe the statutes in question as intended merely to
re-state the present exception and not to create a new one.^
C. Maekiage, and other Facts of Family History.
§ 1602. Reputation of Marriage ; General Principle. The use of reputation,
by exception to the Hearsay rule, to evidence marriage, fulfils both of the or-
dinary prerequisites already noted, the necessity principle {ante, § 1421) and
the principle of trustworthiness {ante, § 1422) .
The necessity, however, here lies not, as for land-boundaries {ante, § 1582),
in the antiquity of the matter to be proved and the consequent dearth of liv-
ing testimony, but in the absence of satisfactory testimony, directly to the
act of exchanging marriage consent. At common law the persons said to
have been married, being usually parties or otherwise interested in the
cause, would consequently have been disqualified as witnesses ; and, when
they were only third persons not interested (as in a contest over the inheri-
tance of their property) would usually have been deceased and therefore un-
available. Furthermore, the procurement of the celebrant of their marriage,
as a living witness, would usually not be feasible ; and the use of a written
record, in the shape of a certificate or a register-entry, was to a great extent
not permissible by law, owing chiefly to the defective regulation of such rec-
ords in English and American communities {post, §§ 1642-1645). Finally,
the latter- source of evidence was in the United States likely to be even more
scanty, first, because of the constant migration of families over wide regions,
and, next, because a marriage was here almost universally treated as valid
without a ceremonial celebration, and therefore no record of it would exist
for all such informal marriages. Practically, therefore, the chief available
sources of evidence were two only. One of these was the conduct of the
persons themselves as husband and wife ; this was used as circumstantial
evidence indicating a prior exchange of consent, and has already been exam-
ined {ante, § 268) ; it was commonly spoken of as " habit." The other was
the present kind of evidence, namely, reputation in the community as married
persons.
As to its trustworthiness, for ordinary practical purposes, there could
equally be no doubt. The relation of husband and wife has important con-
sequences, social and legal, for those who deal with persons purporting to be
1 See the rulings cited post, §§ 1693, 1697-1699.
1948
§§1580-1626] EEPUTATIOjST OF MARRIAGE. § 1602
such. The community has decidedly an interest to ascertaia the fact ; and
this interest in ascertaining the truth has been already seen to be the ground
for exceptionally admitting other kinds of hearsay statements {ante, §§ 1482,
1486, 1586) as from persons sufficiently qualified. The adequacy of this
ground in the present instance has been expounded in the following passages :
1867, Lord Cramvorth, in the Breadalbane Case, L. R. 1 H. L. Sc. 199 : " The great
facility which the law of Scotland affords for contracting marriage has given rise to rules
and principles which have been sometimes considered peculiar to that law. By the law
of England, and, I presume, of all other Christian countries, where a man and woman
have long lived together as man and wife, and have been so treated by their friends and
neighbors, there is a prima facie presumption that they really are and have been what
they profess to be. If after their deaths a succession should open to their children, any
one claiming a share in such succession as a child would establish a good prima facie case
by showing that his parents had always passed in society as man and wife, and that the
claimant had always passed as their child. If the validity of the parents' marriage should
be disputed, it might become necessary for the person claiming as their child to establish
its validity, and, inasmuch as in England all marriages are solemnized in public and pub-
licly recorded, it is reasonable to require the claimant to give positive evidence of its
celebration, or else to explain why he is unable to do so. The principle is the same in
Scotland ; but as marriage there is not necessarily celebrated in public or recorded, it is
much more probable than it would be in England that there may have been a marriage,
but that there may be no means of giving direct proof of it. Those who have to decide,
after the death of parents, on the legitimacy of children must much oftener than in Eng-
land have to rely solely on the prima facie evidence afforded by the conduct of the parties
towards one another and of their friends and neighbors towards them. This sort of evi-
dence is spoken of in Scotland as habite and repute. Persons are sometimes said to be
married persons by habite and repute. I agree, however, with the argument of the Appel-
lant (speaking with deference to those who think otherwise), that this is an inaccurate
mode of expression. Marriage can only exist as the result of mutual agreement. The
conduct of the parties and of their friends and neighbors, in other words, habite and
repute, may afford strong, and, in Scotland, attending to the laws of marriage there exist-
ing, unanswerable evidence that at some unascertained time a mutual agreement to marry
was entered into by the parties passing as man and wife. 1 cannot, however, think it
correct to say that habite and repute in any ease make the marriage. Repute can obviously
have no such effect. It is, perhaps, less inaccurate to speak ot habite creating marriage,
if by the word habite we are to understand the daily acts of persons living together which
imply that they consider each other as husband and wife, and it may be taken as imply-
ing an agreement to be what they represent themselves as being. It seems to me, how-
ever, even here to be an improper use of the word to say that it makes marriage. The
distinction is perhaps one rather of words than of substance ; but I prefer to say that
habite and repute afford by the law of Scotland, as indeed of all countries, evidence of mar-
riage, — always strong, and, in Scotland, unless met by counter evidence, generally
conclusive."
1844, Mr. J. Hubback, Succession, 244 : " Reputation of marriage, unlike that of other
matters of pedigree, may proceed from persons who are not members of the family. The
reason of the distinction is to be found in the public interest which is taken in the ques-
tion of the existence of a marriage between two parties ; the propriety of visiting or other-
wise treating them in society as husband and wife, the liability of the man for the debts
of the woman, the power of the latter to act suojure, and their competency to enter into
new matrimonial engagements, being matters which interest not their relations alone, but
every one who by coming into contact with them may have occasion to regulate his con-
duct according as he understands them to be married or not."
1949
§ 1602 EXCEPTIOXS TO THE HEARSAY RULE. [Chap. LIII
1882, Finch, J., in Badger v. Badger, 88 H". Y. 546, 552 : " The reputation attending
this cohabitation in the neighborhood where it existed and was known among those
brought into its presence by relationship, business, or society, was that which ordinarily
attends the dwelling together of husband and wife. It has been well described as the
shadow cast by their daily lives. In the general repute surrounding them, the slow
growth of months and years, the resultant picture of forgotten incidents, passing events,
habitual and daily conduct, presumably honest because disinterested, and safer to be
trusted because prone to suspect, we are enabled to see the character of the cohabitation
and discern its distinctive features. It is for that reason that such general repute is per-
mitted to be proven. It sums up a multitude of trivial details. It compacts into the
brief phrase of a verdict the teaching of many incidents and the conduct of years. It
is the average intelligence drawing a conclusion." ^
Accordingly, it has been universally conceded that reputation in the com-
munity is always admissible to evidence the fact of marriage ; there does not
seem to have been any time when this was disputed.
§ 1603. What constitutes Reputation; Divided Reputation; Negative Rep-
utation. (1) It does not appear that the reputation must be such as exists
in the neighborhood; i.e. the limitation generally laid down (post, § 1615)
for the use of reputation to moral character is not here applied. The fact of
marriage may be of interest to many others than mere neighbors. To them
chiefly it may be of social interest ; but to others it may be of legal interest
and equally important. There seems to be no settled formula of inquiry ; in
general, it may be assumed that the reputation may be one existing among
any persons who know the parties said to be married :
18.32, Evans v. Morgan, 2 Cr. & J. 453, 456 ; assumpsit on a note made by a woman
before coverture ; the only evidence of the marriage " was that of a person who did not
appear to be related to them, or to live near them, or know them intimately; and he
proved only that he knew the defendant J. M. when she, was J. R. and that he had heard
that she had since married M." ; this witness was not cross-examined. Counsel argued
that " it has never been held that such loose evidence as this amounts to evidence of rep-
utation " ; Bayley, B. : " It goes to show the reputation of the neighborhood " ; Lyndhurst,
L. C. B. : " If you do not cross-examine on such point, you must take those expressions
in the ordinary sense; " Vaughan, B. : "I think that there was prima facie evidence of
reputation of a marriage." ^
(2) The reputation must be a consensus of opinion; it must not be a
divided reputation :
1814, Lord Redesdale, in Cunningham v. Cunningham, 2 Dow 482, 511 : " The parties
must be reputed and holden to be married. It must not be an opinion of A in contradic-
tion to an opinion of B, and of C in opposition to D ; it must be founded not on singular,
but on general opinion. That species of repute which consists in A, B, and C, thinking
one way, D, E, F, another way, is no evidence on such a subject. . . . The conduct of
the parties must be such as to make almost every one infer that they were married."
This much, in theory, may be conceded ; it is analogous to the rule laid down
^ Compare the following cases : 1874,Lylew. the banns were published, admitted by Lord
Ellwood, L. R. 19 Kq. 107; 1876, De Thoren i>. Kenyon "as evidence of the general reputa-
Attorney-General, L. R. 1 App. Cas. 686. tion ) ; 1847, Jones v. Hunter, 2 La. An. 254,
^ 1791, Standen v. Standeu, Peake N. P. 33 256, sembte (reputation in a place where the pap
(that the dece.osed clerk of the parish had said ties had only "lately arrived," insufficient).
1950
§§ 1580-1626] EEPUTATION OF MARRIAGE. § 1605
for reputation to moral character {post, § 1612).2 But the difficulty comes
in applying it. If the witnesses all agree that some of the community
thought the persons married while others thought them not married, there
is in truth no reputation, no consensus of opinion, and the individual opinions
would be inadmissible as a reputation. But if, as will usually happen, the
witnesses pro and con assert each that the general opinion in the community,
as observed by them, was respectively affirmative and negative of marriage,
this is not a case of divided reputation; there is or is not a genuine and
universal reputation according as one or the other set of witnesses is be-
lieved ; and the evidence should therefore go to the jury to determine the
witnesses' credibility.^ The attempt to apply any technical restriction of
admissibility based on division of reputation seems therefore to be futile and
unwise.*
(3) The reputation, assuming it to exist in definite form, may equally be
a iiegative one, i. e. a reputation that certain persons living together are not
married.^
§ 1604. Sufficiency of Heputation-Evidence, distinguished. Whether repu-
tation is admissible at all, is the only question with which the Hearsay rule
is concerned. But there are other rules which concern the sufficiency of
admissible evidence, — rules of Quantity; and one of these declares reputa-
tion, or reputation together with habit, is insufficient at common law in
prosecutions for Mgamy and actions for criminal conversation. The testimony
of an eye-witness is indispensable, i. e. the oral testimony of a bystander or
the celebrant or a party to the marriage or the hearsay testimony of a certifi-
cate or register entry. These rules, which form a special class by themselves,
are elsewhere dealt with {post, §§ 2082-2086).
§ 1605. Reputation of Other Facta of Family History (Race-Ancestry, Iiegit-
imacy, Relationship, Birth, Death, etc.). May not neighborhood-reputation be
often sufficiently trustworthy to be received in evidence of certain other facts
of family history likely to be notoriously canvassed and hence to become
known with a sufficient degree of accuracy ? -^ In communities of more
' 1875, Bamnra v. Bamum, 42 Md. 251, 297 the res gestae" ; this is a confusion of thought,
("where reputation in such case is divided, it but at any rate does not declare the reputa-
aniouuts to no evidence at all") ; 1877, Jones «. tion inadmissible). Contra: 1885, Northrop v.
Jones, 48 id. 391, 403 (Barnura v. Barnum af- Knowles, 52 Conn. 522 (title depending on le-
firmed) ; 1899, Williams v. Herrick, 21 K. 1. 401, gitimacy ; after proof by certificate of marriage,
43 Atl. 1036 (must be general and uniform). reputation of the relation as adulterous was ex-
' This seems to have been the view taken in eluded ; perhaps allowable, in proof by reputa-
the following cases : 1 883, Powers v. Charms- tion, to show divided reputation in disproof) ;
bury, 35 La. An. 630, 634; 1894, Jackson v. 1882, Badger v. Badger, 88 N. Y. 546, 554,
Jackson, 80 Md. 176, 30 Atl. 752. semble (reputation of non-marriage of the man
* The rule should rather be that a divided among persons with whom he lived as a bache-
reputation, though admissible, is insufficient for lor, concealing his connection with the woman,
proof : 1 902, Heminway v. Miller, 87 Minn. 123, held inadmissible ; to be admissible " it does not
91 N. W. 428. and cannot go beyond the range of knowledge
' 1874,Lyle!;.EUwood, L. R. 19Eq.98, 106; of the cohabitation "). Undecided: 1859, Hill
1868, Boone v. Purnell, 28 Md. 607, 629; 1842, v. Hill's AdmV; 32 Pa. 511 (dower; reputation
Re Taylor, 9 Paige 611, 616 (reputation of non- that claimant had been "called in her neighbor-
marriage was admitted ; but the Chancellor de- hood " Mrs. W., not Mrs. H., excluded, as here
clared that reputation after certain " stories being only individual declarations ; general
were set afloat was "not legal evidence to re- question reserved).
but the presumption," " as it was not a part of ^ Distinguish the use of declarations by indi-
1951
§ 1605 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
primitive conditions, where social life continues stable amid constant and
fixed surroundings, the neighborhood-reputation is unquestionably of some
value. Such was formerly the almost universal state of things in England,
on the Continent, and in the United States. Such is still the state of things
in rural communities almost everywhere (except in our newly-settled
regions), and notably in the small towns of New England and the South.
That it has ceased to exist in the metropolitan communities does not indicate
that neighborhood-reputation, where it arises, is less trustworthy ; it merely
indicates that amid the isolated individualism and kaleidoscopic changes of the
metropolitan horde no neighborhood-reputation is likely to exist. Moreover,
the frequent migrations of American life have in one respect made reputation-
evidence even more necessary than in stable communities as a source of
knowledge ; for in countless families the only means of knowledge for them
of the career of their migrated members is the reports brought back, at times,
of the fate or fortune reputed to have overtaken them in the distant com-
munity where they took up a new home. In the typical cases coming before
the courts, where, for example, one who was in California with John Doe,
who emigrated from New England in 1850, testifies that Doe was commonly
reputed in Sandy Gulch to have been killed in a brawl and to have been
then and there buried, does not this serve to support belief ? If it is the fear
of imposition that stands in the way, would it not be equally possible to pro-
cure some perjurer to come from California and tell upon the stand a con-
cocted story about the death of Doe as witnessed by him? It is not a
question of absolute proof ; it is a question of the admissibility of a single
piece of evidence, which may or may not prove to be sufficient. It seems
finical to exclude from any consideration whatever, in a legal investigation, a
class of evidence which is not only much relied upon in practical affairs, but
is also sufficiently within the general principle of two exceptions (Reputation
and Family History) to the Hearsay rule. Such evidence was once in Eng-
land considered orthodox enough ;2 and its use has been vindicated, on
grounds of policy and of principle, by many American Courts, as admissible
in certain classes of cases :
1821, Mills, J., in Birney v. Hann, 3 A. K. Marsh. 326 : " From the sayings of the
parents or members of the family, Courts progressed at last to the admission of the gen-
eral recognition or reputation of the heirship by others. It is admitted that it is difficult
to lay down any precise rule on this subject. The kinds of evidence which are calculated
to prove the consanguinity or affinity of one person to another are various, and all may
be proper after a lapse of time. . . . Lapse of time, or distance of place, may furnish
grounds for greater latitude and admit tradition, reputation, and recognition of a neigh-
uirfuo/s (friends and intimates) not being family- 1155, 1170 ("common report" admitted that
relations, under the JTaraily History Exception defendant Wiis a postnatus, i. e. born after the
(nn«e, § 1487). accession of James I of England). The practice
2 It was always admitted to show plaoe of probably continued till the ISOOs: 1792, Grose,
hirth, as fixing nationality : 1696, Vaughan's J., in Morewood ». Wood, 14 East 330, note : •' I
Trial, 13 How. St. Tr. 485,' 509, 512, 515 ; 1704, remember the case of a pedigree tried at Win-
Lindsay's Trial, 14 id. 987, 996; 1717, Francia's Chester, where there was a strong reputation
Trial, 15 id. 897, 962. So also for time of birth: thronghout all the country one way, and a great
1649, Duke of Hamilton's Trial, 4 How. St. Tr. number of persons were examined to it."
1952
§§ 1580-1626] EEPUTATION OF LEGITIMACY, ETC. § 1605
■ borhood, or the use of documents, records, and inscriptions, which may disclose the con-
nexion by blood or marriage to him from whom a right is claimed."
1834, Catron, C. J., in Flowers v. Haralson, 6 Yerg. 496: " Reputation of pedigree is
the result of the public mind, founded upon actual knowledge of the whole community ;
and experience and knowledge in the nature and habits of man teach the unerring cer-
tainty of the public knowledge and conclusion in relation to family history. Individuals
may fail in their investigations of particular facts ; but where marriages, births', and deaths
are the facts to be learned, human curiosity saves us the trouble and expense of proving
the occurrences by witnesses present or by the hearsay of those who were, or of the family
connaxion. No individual investigations or testimony can generally be equal in certainty
to the curious' scrutiny; and if secrecy be attempted, public curiosity sets on foot an
anxious search for the truth. General reputation of such facts is not only competent,
but highly credible."
1889, Laiorence, J., in Ringhouse v. Keener, 49 111. 471 (admitting testimony of friends
that " his death was announced in the newspapers and he was spoken of by his acquaint-
ances as dead ") : " In a population as unstable as ours, and comprising so many persons
whose kindred are in distant lands, the refusal of all evidence of reputation in regard to
death, unless the reputation came from family relatives, would sometimes render the
proof of death impossible, though there might exist no doubt of the fact, and thus defeat
the ends of justice."
1875, Cooper, C, in Carter v. Montgomery, 2 Tenn. Ch. 227: "In England it is now
well settled that hearsay evidence is resorted to in matters of pedigree . . . upon the
ground of the interest of the declarants in knowing the connections of the family. The
rule is consequently restricted to the declarations of deceased persons who were related by
blood or marriage to the person from whom the descent is claimed, and general repute in
the family proved by a surviving member. ... It is obvious that while the English rule
may be most consonant to sound principle, and may answer the ends of justice in a dense
population and settled community, yet it scarcely suffices in a sparsely inhabited country
with a migratory and rapidly changing population. It would be utterly inadequate in
matters relating to a slave population, where the family is not legally recognized, and, for
the same reason, to the settlement of the rights of illegitimates. Where would the negro
have been in suits for freedom, after a few years, on a change of domicile by the master,
with the presumption of slavery against them by reason of color, if the English rule had
been rigidly adhered to ? . . . Under our' decisions so much of the testimony in this case,
based upon hearsay or reputation, as relates to the pedigree of James M. Garrett is admis-
sible, whether it comes from members of the family or third persons, to be weighed ac-
cording to the sources of information, the opportunities of witnesses, and the sm-rounding
circumstances."
This sanction of neighborhood-reputation has not been universal. It is illus-
trated in many rulings ; but there is still in many other Courts an entire
refusal to accept it. There are certain classes of facts for which it is entirely
appropriate ; there are others for which it may not be. The matter is one
in which it should be left to the discretion of the trial Court to admit such
a reputation wherever the meagreness of other evidence, or the difficulty of
obtaining it, renders it desirable to accept that which is offered.
On no one point is there a general agreement in the rulings. They may
be grouped according as they deal with the admissibility of reputation as
evidence of legitimacy or the opposite ; ^ of relationship, to a family or to an
' England: 1743, Craig dem. Annesley o. 1, 77 (same controversy; excluded); 1810, Ban-
Anglesea, 17 How. St. Tr. 1139, 1174, 1439, et bury Peerage Case, in App. to LeMarchant's
passim (admitted) ; 1744, Heath's Trial, 18 id. Gardner Peerage Case, 447, 470, 481 (Lord
1953
1605
EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
individual,* or of hirih,^ or of death or its place or time,® or of race-ancestry
(i. e. whether slave or free, whether white, negro, or Indian),^ or of sundry
facts of family history.*
2>. Moral Character (Party or Witness).
§ 1608. Reputation and Actual Character distinguished. That actual
character is distinct from reputation of it, and the latter is merely evidence
to prove the former, ought to be a truism. But the common use of the word
"character" in the senses both of actual disposition and of reputation has
Redesdale : " General reputation of legitimacy
would have been evidence in favor of the legit-
imacy of Nicholas ; so general reputation that
there existed no issue of Lord Banbury was
evidence against such legitimacy. . . . The rep-
utation at home and abroad, the belief of rela-
tions, friends, and neighbors, was the evidence
which ought to have been resorted to ") ; United
States : 1901, Heaton's Estate, 135 Cal. 385, 67
Pac. 321 (reputation in the commnnitv, ex-
cluded; C. C. P. § 1870, par. 11, quoted ante,
§ 1597, "never was intended to broaden the
common-law rule upon this subject"); 1857,
liichardson v. Roberts, 23 Ga. 220 (reputation
that the plaintiff's cliild was a bastard, etc., as
aUej;ed in an utterance charged as defamatory,
excluded) ; 1881, DeHaven v. DeHaveu, 77 lud.
■ 236, 239 (reputation as to paternity, excluded) ;
1899, Watson v. Richardson, 110 la. 673, 80
N. W. 407 (current reports in the community of
deceased that the claimant was Iiis illegitimate
son, excluded ; except so far as by statute the
putative father's recognition in substantive law
must be "notorious"); 1862, Haddock v. R.
Co., 3 All. 298 (reputation of child's illegiti-
macy, excluded) ; 1898, Erwin v. Bailey, 123
N. C. 628, 31 S. E. 844 (reputation to show
legitimacy, excluded) ; 1846, Ford v. Ford, 7
Humph. 98 (admitted) ; 1875, Carter v. Mont-
gomery, 2 Tenn. Ch. 227 (admitted; see quota-
tion supra) ; 1825, Stegall v. Stegall's Adm'r,
2 Brockenb. 256, 263, Marshall, C. J. (it " can-
not be entirely disregarded," but its weight
" depends on the circumstances of the case '.' ;
said of reputation to legitimacy) ; 1826, Stokes
V. Dawes, 4 Mason 268, 270, Story, J. (admitted
without question) ; 1896, Flora v. Anderson,
75 Fed. 217, 233 (neighbors' reputation as to
illegitimate child, excluded).
Distingnish the use of reputation under a
statute requiring a putative father's recognition
to be " notorious " ; here the reputation is a
part of the issue under the substantive law
and is admissible on that ground {ante, § 70) :
1899, Watson v. Richardson, la., sitpra ; 1901,
Alston V. Alston, 114 la. 29, 86 N. W. 55.
* 1899, Elder v. State, 123 Ala. 35, 26 So.
213 (reputation in the neighborhood to show re-
lationship, excluded) ; 1899, Lamar v. Allen,
108 Ga. 158, 33 S. E. 958 (reputation of neigh-
borhood to show relationship, excluded) ; Me.
Pub. St. 1883, c. 27, § 49 (in actions against
liquor-seller for damage to family, general
reputation is admissible to show plaintiff's rela-
tionship to the intoxicated person) ; 1811, Jack-
son V. Cooley, 8 'John. 130 (cited ante, § 1487) ;
1834, Ewell V. State, 6 Yerg. 364, 372 (admitted).
5 Citations supi-a, note 2.
« 1869, Ringhouse v. Keener, 49 lU. 471
(admissible ; see quotation s'upra) ; 1860, Carnes
V. Crandall, 10 la. 377 (reputation among C.'s
friends and neighbors in California that he had
died there in 1851, excluded ; no authority
cited); 1885, Blaisdell v. Bickum, 139 Mass.
250, 1 N. E. 281 (reputation of death of Q. be-
fore marriage with E. Q , excluded; no author-
ity cited) ; 1902, Welch v. R. Co., 182 id. 84,
64 N. K. 695 (general repute, brought home to
tlje family, held admissible to prove death) ;
1826, Jackson v. Etz, 5 Cow. 319 (time of
death ; admissible) ; 1898, Arents v. R. Co.,
156 N. Y. 1, 50 N. E. 422 (whether M. was the
only surviving child of C. in 1849 ; reputation
of the neighborhood received to show the death
of certain other children); 1834, Flowers v.
Haralson, 6 Yerg. 496 (admissible ; see quota-
tion supra); 1851, Primm v. Stewart, 7 Tex.
178 (reputation that W. had died some years be-
fore, admitted) ; 1831, Scott v. Ratliffe', 5 Pet.
81 , 86, semble (reputation admitted) ; 1 890,
Hurlburt v. Hurlburt, 63 Vt. 667, 22 Atl. 850,
semble (reputation in Dakota as to death of an
emigrant, excluded) ; 1896, Hurlburt's Estate,
68 id. 366, 35 Atl. 77 (reputation among friends
and acquaintances, in the place of residence, as
to death, excluded).
' 1904, Locklayer ». Locklayer, — Ala. — ,
35 So. 1008 (inheritance of an alleged negro) ;
1856, Bryan v. Watson, 20 Ga. 480 (freedom of
a person of color) ; 1864, Nave v. Williams, 22
Ind. 368 (mixed blood ; admissible) ; 1839,
Chancellor v. Milly, 9 Dana 24 (colored slave
ancestry ; admissible) ; 1827, Vaughan v. Phebe,
Mart. & Y. 19 (admissible, to show free or slave
ancestry ; leading opinion, by Crabb, J.) ; 1806,
Hudgins v. Wrights, 1 Hen. & M. 134, 137, 142
(Indian ancestry ; admissible) ; 1808, Pegram v.
Isabell, 2 id. 205 (similar).
» 1851, State v. Seawell, 18 Ala. 616 (repu-
tation to prove a party out of the State, ex-
cluded) ; 1858, GriflSu 1). Wall, 32 id. 149, 160
(reputation to prove a voter's residence, inadmis-
sible) ; 1897, Mitchell v. State, 114 id. 1, 22 So.
71 (the absence of a witness from the jurisdic-
tion, excluded) ; 1898, Albion v. Maple Lake, 71
Minn. 503, 74 N. W. 282 (reputation as to the
residence of a pauper, excluded).
1954
§§ 1580-1626] REPUTATION OF CHAEACTER. § 1609
led to occasional obscurity of language in judicial opinions, and has thus
tended to remove the emphasis from the distinction. When we argue that a
defendant probably did not commit a forgery because his disposition was
honest {ante, § 55), or that a witness probably is speaking falsely because he
is mendacious in disposition {ante, § 922), we are arguing from his actual
moral constitution, which in its turn becomes a fact to be proved ; and when
we then resort to reputation or -individual opinion or particular conduct, we
are resorting to it as evidence from which we may make some inference to
the nature of the actual trait. The distinction has already been referred to
elsewhere {ante, §§ 52, 920) ; but the following passages remind us of its
importance :
1851, Caldwell, J., in Bucklin v. Slate, 20 Oh. 23 : "The term ' character,' when more
strictly applied, refers to the inherent qualities of the person, rather than to any opinion
that may be formed or expressed of him by others ; the term ' reputation' applies to the
opinion which others may have formed and expressed of his character; so that, as has
been remarked in some of the books, when treating on this subject, a man's character
may really be good when his reputation is bad, and, on the other hand, his reputation
may be good when his character is bad. But, as we have before intimated, the terms
when used in connection with this subject are generally used in contradiction to this
distinction, — the term 'general character' being used in legal signification, as it is
frequently used in common parlance, to express the opinion that has generally obtained
of a person's character, the estimate the community generally has formed of it. When
you ask a witness, then, in this sense of the term, what a man's general character is for
truth and veracity, he is called on to answer as to what opinion is generally entertained
and expressed of him by those acquainted with him."
1885, Durfee, C. J., in State v. Wilson, 15 R. I. 180, 1 Atl. 415 : "Doubtless there
is a distinction observed by careful writers between ' character ' and ' reputation ' ;
' character ' (where the distinction is observed) signifying the reality, and ' reputation '
merely what is reported, or understood from report, to be the reality, about a person or
thing."
1895, Jordan, J., in Wright v, Crawfordsville, 142 Ind. 636, 642, 42 ST. E. 227 (admit-
ting specific acts to prove character) : " Counsel seemingly confuse real character — that
which is actually impressed by nature, traits, or habits upon a person — with what is
generally termed reputed character. Reputation may be evidence of character, but it is
not character itself. That which a person really is must be distinguished from that
which he is reputed to be."
1885, Mr. Richard Grant White, Words and their Uses, 9th ed., p. 99: "Character,
Reputation. These words are not synonymes ; but they are too generally used as such.
. . . We know very little of each other's characters ; but reputations are well known to
us (except our own). Character, meaning first a figure or letter engraved, means second-
arily those traits which are peculiar to any person or thing. Reputation is, or should be,
the result of character. Character is the sum of individual qualities; reputation, what
is generally thought of character, so far as it is known. Character is like an inward and
spiritual grace, of which reputation is, or should be, the outward and visible sign. . . .
Sheridan errs in making Sir Peter Teazle say, as he leaves Lady Sneerwell's scandalous
coterie, ' I leave my character behind me.'LJIis reputation he left; but his character was
always in his own keeping.")
§ 1609. Reputation not a "Fact," but Hearsay Testimony. It follows,
since reputation is looked to merely as evidence of the character reputed,
that the reputation is hearsay testimony, for it is the expression of an opinion
1955
§ 1609 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LHI
on the part of the community, used testimonially, but uttered out of Court
and not under cross-examination {ante, §§ 1361, 1362). It is therefore
receivable, if at all, as an exception to the Hearsay rule. It has been said,
in an opinion often quoted,^ that reputation is admissible as a " fact," i. e. as
circumstantial evidence ; but this is the merest error. Eeputation is testi-
monial evidence, i. e. the assertion of a number of persons used as the basis of
an inference to the truth of the fact asserted {ante, § 25) ; and the true nature
of this use cannot be obscured by calling it a " fact " :
1815, Tilghnian, C. J., in Com. v. Stewart, 1 S. & R. 344 (rejecting neighborhood-rep-
utation-evidence as to the character of an alleged disorderly house) : " It is agreed on all
hands that this is not one of those cases in which hearsay evidence can be admitted.
But it is contended that the complaint of the neighborhood is a matter of fact, and
therefore, when the witness proves the complaint, she only proves a fact within her own
knowledge. I am not satisfied with this ingenious distinction, which gets round and
avoids an important rule of evidence ; in the same way all hearsay evidence may be intro-
duced, for it is always a fact that the witness hears the other person speak, and it is a
fact that the words spoken by that person were heard by the witness."
It is true that reputation is not always and necessarily used as hearsay,
i. e. as a testimonial assertion. It may be a part of the very issue, as where
the reputation of a plaintiff is in issue to determine the damages in an action
for defamation, or where the reputation of a house of ill-fame is in issue ; in
these and similar cases {ante, §§ 70-79), the reputation is the fact to be
proved, irrespective of the actual character reputed. Moreover, reputation
may be evidential circumstantially, as where it is offered to show probable
knowledge by a creditor of a debtor's insolvency or to show probable belief
by a defendant in the violent character of the deceased on a trial for homi-
cide ; in these and similar cases {ante, §§ 245-261), the reputation is used
merely as a circumstance from which it may be inferred that some other
person obtained a knowledge or a belief. But when reputation is offered as a
ground for inferring that the character afBrmed by the reputation to exist
does actually exist, then what we -are asked to receive is testimonial evidence,
precisely as it would be (by general concession) if the offer was to prove the
extrajudicial belief and utterance of John Doe to the same character.
Whenever the offer is to prove what Doe, or Doe and Eoe, or Doe and Eoe
and five hundred others, think and say of J. S.'s character, as a mode of prov-
ing J. S.'s actual character, the evidence is hearsay, and must come in, if at
all, under a hearsay exception.
§ 1610. General Theory of XTse of Reputation as Evidence of Character.
There was perhaps a time when reputation alone was not regarded as admis-
^ 1877, Lord, J., in Walker v. Moors, 122 mere declaration of one or many is hearsay.
Mass. 504 (dealing witli a witness to reputation . . . The question is a simple one of fact,
for mercantile credit; " Was his testimony the Is there a general reputation ? "). So also Pol-
statement of a fact, or was it simply what is lock, C. B., in R. v. Rowton, 1865, Leigh & C.
ordinarily designated as hearsay evidence'? 526 (" What yon pick up of a man's reputation
The distinction between reputation and hearsay in the neighborhood in twenty years is not heax-
evidence is sometimes a difficult practical ques- say"),
tion. . . . General reputation is a fact. The
1956
§§ 1580-1626] EEPUTATION OF CHAEACTEE. § 1610
sible to prove character. There certainly was a time when the personal
knowledge and opinion of acquaintances was regarded as a superior source of
evidence.! But at any rate, for more than two centuries, it has been settled
that reputation in the community is a proper source of evidence.
(1) That there is a necessity for this kind of evidence, according to a fun-
damental principle of Hearsay exceptions {ante, § 1421), appears not merely
from the fortuitous circumstance that the personal opinion of intimates is
by the present law of most jurisdictions improperly held to be inadmissible
{post, §§ 1983, 1985) ; but also from the settled rule that particular acts, as
evidence of character, are not to be resorted to at all against a defendant in a
criminal case {ante, § 194) nor against a party in most civil issues {ante,
§§ 199-212), and not against a witness except by cross-examination or by
judgment of conviction for crime {ante, §§ 977-981); and furthermore from
the probable scantiness and indefiniteness of evidence of the latter sort as
compared with the fulness and solidity of material represented in a reputa-
tion based on a person's constant and repeated exhibition of his character in
conduct as daily observed by the community. The last reason has been well
set forth in the following passage :
1828, Gibson, J., in Brindle v. M'lhmine, 10 S. & R. 282, 285 (excluding reputation to
prove intemperance) : " That kind of depravity which renders a man unwforthy of belief,
and which is proved, not by particular instances, but by general reputation, is of a moral
kind, and is evinced by a vai'iety of acts and a long course of general bad conduct, the
particular instances of which (if they were not inadmissible for other reasons) could not
in the nature of things be expected to be treasured up in the recollection of witnesses
and spoken of in detail to enable a jury to draw their own conclusions ; and therefore an
inference of moral destitution drawn from this source by the public at large, which is
nothing else than general reputation, is not secondary but the best evidence of the fact
of which the nature of the case is susceptible. But the causes of physical depravity of
the mental faculties are susceptible of a particular description by those who have wit-
nessed them, and are to be proved by the ordinary evidence of any other fact."
(2) That there is, in the community's reputation, a circumstantial guar-
antee of trustworthiness, fulfilling another fundamental requisite for Hearsay
exceptions {ante, § 1422), is found in the same considerations already men-
tioned as justifying the use of reputation on matters of general interest
{ante, § 1583). Those considerations are that, where the subject matter is
one in which all or many of the members of the community have an oppor-
tunity of acquiring information and have also an interest or motive to
obtain such knowledge, there is likely to be such a constant, active, and
intelligent discussion and comparison that the resulting opinion, if a definite
opinion does result, is likely to be fairly trustworthy. That these considera-
tions apply to a reputation of personal character cannot be doubted. No fact
is more open to general observation, no fact is of more legitimate interest to
the community as an object of knowledge, and consequently no fact is more
the theme of general discussion, criticism, and comparison of views, than
moral character as exhibited in conduct. The community relies upon this
1 Post, § 1981.
1957
§ 1610 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
reputation as evidence in social, commercial, and professional relations, and
the law of evidence relies upon it. Erskine's description of reputation is
celebrated :
1794, Mr. Thomas Erskine, arguing, in Thomas Hardy's Trial, 24 How. St. Tr. 1079 :
"You cannot, when asking to character, ask. What has A. B. C. told you about this
man's character ? No ; but, what is the general opinion concerning him ? Character is
the slow-spreading influence of opinion, arising from the deportment of a man in society.
As a man's deportment, good or bad, necessarily produces one circle without another,
and so extends itsejf till it unites in one general opinion, that general opinion is allowed
to be given in evidence."
No doubt reputation is often misleading ; but so are all sources of evidence.
No doubt actual character is not ascertainable by reputation beyond a few
broad traits grossly marked, clearly exhibited, and easily observed ; but the
law does not attempt to use it beyond this point. No doubt actual character
does not always merit the estimation which reputation puts upon it ; but,
nevertheless, there is a certain inevitableness in the revelation of character
by conduct, and a certain sureness of apprehension even in the rough popular
judgment. Confucius said ^ in a warning to his disciples : " How can a man
conceal his character ! How can a man conceal his character ! " Emerson
expounded it as a cardinal truth of life : ^ " A man passes for what he is worth.
Very idle is all curiosity concerning other people's estimate of us ; and all
fear of remaining unknown is not less so. The world is full of judgment-
days, and into every assembly that a man enters, in every action he attempts,
he is gauged and stamped. ' What has he done ? ' is a divine question which
searches men, and transpierces every false reputation. A fop may sit in any
chair of the world, nor be distinguished for his hour from Homer and Wash-
ington ; but there need never be any doubt concerning the respective ability
of human beings. Human character evermore publishes itself." That was a
keen answer of Murray, Lord Mansfield, when Mr. Cowper remarked, argu-
ing about reputation-evidence : * " I have heard it said, as a common profli-
gate observation of Colonel Charteris, that he would give twenty thousand
pounds to be thought an honest man, — though he would not give twenty
farthings to he one " ; upon which the great judge commented : " His money
could not have been worse laid out ; for he would have lost his good character
in half an hour afterwards."
(3) A third element, to be regarded in all Hearsay exceptions because
required of all testimonial evidence (ante, § 1424), is that principle which
excludes testimony not founded on adequate sources of knowledge. This
requirement, though an independent one, is satisfied whenever the foregoing
one is satisfied ; but its bearing here is particularly seen in the rule limiting
reputation to that community in which the person resides (post, § 1615).
§ 1611. Reputation, distinguished from Rumors. Eeputation, being the
community's opinion, is distinguished from mere rumor iu two respects.
* Analects, book II. ' Essay on Spiritual Laws.
* 1783, Bembridge'a Trial, 22 How. St. Tr. 135.
1958
§§ 1580-1626] EEPUTATION OF CHARACTER. § 1612
On the one hand, reputation implies the definite and final formation of opin-
ion by the community ; while rumor implies merely a report that is not yet
finally credited. On the other hand, a rumor is usually thought of as signi-
fying a particular act or occurrence, while a reputation is predicated upon a
general trait of character ; a man's reputation, for example, may declare him
honest, and yet to-day a rumor may have circulated that this reputed honest
man has defaulted yesterday in his accounts. The distinction in the latter
aspect has already been sufficiently illustrated (in the passages quoted ante,
§ 74). The distinction in the former aspect is the more important one to be
emphasized in the present connection :
1852, Bell, J., in Dame v. Kenney, 25 N. H. 320 : " People usually form their opinions
of the characters of men from what they know of them personally and from what is said
of them by those who have the means of knowledge and whose opinions are entitled to
confidence. . . . [Mere rumors and reports], if numerous and repeated, too often gain
credit, and the general character may, in consequence of that credit, be seriously affected.
The reports themselves prove nothing as to general; character. They may be entirely
discredited and disbelieved where the party assailed is known. The point of inquiry in
relation to general character is not whether a man has been attacked ; but, how does he
stand now, when rumor has spent its force upon him ? " i
§ 1612. Reputation must be General; Divided Reputation. It is commonly
said that the reputation must be " general " ; that is, the community as a
whole must be agreed in their opinion, in order that it may be regarded
as a reputation. If the estimates vary, and public opinion has not reached
the stage of definite harmony, the opinion cannot yet be treated as suffi-
ciently trustworthy. On the other hand, it must be impossible to exact
unanimity ; for there are always dissenters. To define precisely that quality
of public opinion thus commonly described as " general " is therefore a diffi-
cult thing. The requirements of modern Courts are apparently more strict
than in the earlier practice; and there is something to be said for the lib-
erality of the latter :
1780, Masl'alVs Trial, 21 How. St. Tr. 684 : " Do you know anything more of him [the
witness Richard Ingram] ? " "I have been in several companies where he has been men-
tioned, and wherever his name was mentioned, he was generally known by the appellation
of Lying Dick." To another witness : " What character does he bear ? " "There is a
diversity of opinions respecting him ; some give him a good character, and some a very
indifferent one." " Which is the most prevalent of the two V " " I hear that he is a
■most notorious liar." " Is the opinion more general of his being a liar than otherwise ? "
" I have heard them that know him a good deal say so."
1884, Campbell, C. J., in Pickens v. Stale, 61 Miss. 566 : " General reputation consists
in what is generally thought of one by those among whom he resides and with whom he
is chiefly conversant. ' Common opinion ' ; ' that in which there is general concurrence ' ;
' the prevailing opinion in that circle where one's character is best known ' ; ' what is
generally said by those among whom he associates and by whom he is known ' ; ' common
report among those who have the best opportunity of judging of his habits and integrity ' ;
^ Accord: 1879, Haley 'u. State, 63 Ala. 86; prosecution in rebuttal of a defendant's good
185.5, Pleasant t). State, 15 Ark. 624, 653 ("rumor character); 1903, Harrison v. Garrett. 132 id.
and belief," excluded) ; 1877, State v. Laxton, 172, 43 S. E. 594; 1846, Ford v. Pord, 7 Humph.
76 N. C. 216 (excluded; here offered by the 101.
1959
§ 1612
EXCEPTIONS TO THE HEAESAY RULE. [Chap. LIII
'common reputation among his neighbors and acquaintances,' — are so many forms of
expression by which an eflort has been made to define wherein consists general
reputation."
1895, McSherry, J., in Jackson v. Jackson, 82 Md. 17, 33 Atl. 317 : " A reputation, to
be a provable reputation at all, must be a general reputation. It may be either one of
two opposites ; for instance, either good or bad. It cannot be intermediate, — that is,
partly one, and partly the other ; for that would not be general, and there would then be
no general reputation either way. If it is generally good or generally bad, or, as appli-
cable to the case at bar, if a man and woman are generally reputed to be married, or if
the converse is generally asserted, a, general reputation, one way or the other, exists; and
of a general reputation, and noue other, the law allows evidence to be given. But, if it
be not general, then, obviously, it does not exist as a fact, and evidence cannot be received
to show a partial, limited, or qualified repute. The existence of a diversity of opinion is
one of the means by which a witness may know there is a general reputation, but this
means of knowledge, apart from the fact that there is or is not a general reputation, and
as a totally independent circumstance, is not the thing to be proved."
la applying this principle, a great variety of forms of question are to be
found, sanctioned or disapproved, all of them involving efforts, more or less
successful, to carry out more definitely the fundamental and unquestioned
notion that the reputation must be " general." ^ There is on this subject
often an attempt at nicety of phrase which amounts in effect to mere
1 1846, Sorrelle v. Craig, 9 Ala. 5-39 (" what
is generally said of the person by those among
whom he dwells or with whom he is chiefly con-
versant ") ; 1S48, Hadjo v. Gooden, 13 id. 720, 722
(" it is not necessary to know all his neighbors ") ;
188.T, Jackson v. State, 78 id. 473 (reputation
" in the upper portion of the neighborhood," ad-
mitted) ; 1903, Vickers K. People, — Colo. — ,73
Pac. 845 (testimony excluded, where the witness,
a non-resident, had talked with only three per-
sons) ; 1845, Regnier v. Cabot, 7 111.40 (the wit-
ne.ss knew of the opinion of three persons only;
excluded); 1859, Crabtree v. Kile, 21 id. 183
(what is "generally said"); 1861, Crabtree v.
Hagenbaugli, 25 id. 233, 238 (what " a majority
of his neighbors said ") ; 1864, Fahnestock v.
State, 23 Ind. 231, 238 (character founded on
" report of his neighbors," excluded, as not
involving the " general opinion of the neighbor-
hood"); 1879, Meyncke v. State, 68 id. 404
(" the word ' general ' is an essential requisite in
an impeaching question of this kind"); 1891,
Coates u. Sulan, 46 Kan. 341, 26 Pac. 720 (a
question as to the " reputation in this com-
munity," not inadmissible If properly under-
stood by the witness as involving generalness,
though the word "general" was not used);
1869, Vernon w. Tucker, 30 Md. 456, 462 (what
"several" of the neighbors said, excluded);
1856, Webber v. Hanke, 4 Mich. 198 ("what
people acquainted with him say," held improper ;
" what is generally said " is proper) ; 1878,
Lenox v. Fuller, 39 id. 271 (apparently approv-
ing the preceding case) ; 1892, Sanf ord i: Row-
ley, 93 id. 119, 122, 52 N. W. 1119 (numerously
signed indorsement of petition for office, ex-
cluded); 1859, Powers v. Presgroves, 38 Miss.
227, -^41 ("what is generally said"); 1885,
French v. Sale, 63 id. 386, 392, 394 (the testi-
mony is " usually and necessarily indefinite " as
to the number of persons ; the witness must be
able "as a matter of conscience" to i;ive the
" common or general opinion ") ; 1877, Matthew-
son V. Burr, 6 Nebr. 312, 316 (not "what two or
three persons only may think or say," but " the
general estimation in which he is held by his
neighbors and acquaintances"); 1851, Hersom
V. Henderson, 23 N. H. 498, 506 ("Do the
neighbors call him Lying Josh?," excluded);
1843, State o. O'Neale, 3 Ired. 88 (inquiries as
to " what a majority of neighbors said," and " iu
what estimation E. was held," excluded; the
estimation must be general); 1843, State v.
Parks, ib. 296 (the witness " had heard a great
deal said about his character " ; " did not know
whether a majority of those he heard speak of
it spoke well or ill of it " ; " had heard a great
many respectable men speak well of L 's char-
acter, and a great many, equally respectable,
speak ill of it " ; excluded, as not amounting
to a general reputation) ; 1853, French v. Mil-
lard, 2 Oh. St. 44 ("reputation" means "gen-
eral reputation"); 1892, State v. Turner, 36
S. C. 534, 539, 15 S. E. 602 (the reputation
must be "general," the number of persons in-
cluded depending largely on circumstances, in
the trial Court's di.scretion) ; 1851, Wayne, J.,
in Gaines v. Relf, 12 How. 555 (not merely
what some say, but the general saying) ; 1898,
State V. Marks, 16 Utah 204, 51 Pac. 1089
( " the word ' general ' should always be used,"
and directed to the reputation in the community
of residence).
It follows that, on direct examination, the
witness cannot be asked to name individuals who
have spoken: 1872, State v. Perkins, 66 N. C.
127. For allowing this on cross-examination,
see ante, §§ 988, 1111.
1960
§§ 1580-1626] EEPUTATION OF CHARACTER. § 1614
quibbUng, because the witness ordinarily will not appreciate the discrimi-
nations ; such requirements of definition should be avoided as unprofitable.^
§ 1613. Same : Majority need not have Spoken. The reputation, as just
indicated, must involve the general opinion, not a partial or fragmentary one.
Nevertheless that opinion may exist as a general one, entertained by the
community as a whole, although no utterance by that general mass of its
members, or even by a majority of them, has been made. In other words, a
general reputation may by inference be believed to exist, although the utter-
ances actually heard by the witness, and used as the basis of his inference,
may be and usually are those of a representative minority only :
1884, Campbell, C. J., in Pickens v. State, 61 Miss. 567 : " It was not necessary for him
[the witness] to have heard a majority, or any given proportion, of that undefined and
uudefinable circle, designated as the ' neighborhood ' or ' community,' say what they
thought of G. . . . While a witness should be cautious on this subject, and not be en-
couraged to testify that he is acquainted with the general reputation of another unless he
knows the generally prevalent sentiment of those most conversant with him, he is not to
be repressed by telling him he must know what a majority say of him about whom he is
called to testify. . . . He may have heard a sufficient number express themselves to
be willing to say he knows the general concurrence in one view of a number great enough
to be regarded as a fair index to the community. One may know the general reputation
of Sargent S. Prentiss as a matchless orator, although he has heard a small proportion of
those who felt the thriU of his unrivalled eloquence say what they thought of him." ^
§ 1614. Same: Never Hearing anything Against the Person. Upon the
same principle, the absence of utterances unfavorable to a person is a suffi-
cient basis for predicating that the general opinion of him is favorable. A
witness to good reputation may therefore testify by saying that he has never
heard anything said against the person :
1865, R. V. Rowton, Leigh & C. 520, 535, 536 ; Erie, C. J. : " The best character is that
which is the least talked of"; Cockburn,C. J. : "Negative evidence, such as 'I never
heard anything against the character of the man,' is the most cogent evidence of a man's
good character and reputation, because a man's character is not talked about till there is
some fault to be found with it. It is the best evidence of his character that he is not
talked about at all."
1854, Benning, J., in Taylor v. Smith, 16 Ga. 10 : " Certainly the sort of silent respect
and consideration by which one is treated and received by those who know him is some
index of what they think of him as a man of veracity ; and indeed, if he is a person whom
they think very highly of, this is about the only index. The character for truth of such
a person is never discussed, questioned, ' spoken of.' To discuss, question, or even per-
haps to speak of one's reputation for truth, is to admit that two opinions are possible on
that point. Suppose the question were, What was the character of Washington among
2 18.59, Bell, J., in Boon v. Wethered, 23 835 (not necessary that a majority of the neigh-
Tex. 675, 681; 1880, Stone, J., in Sullivan v. hers should have spoken on the subject) ; 1902,
State, 6B Ala. 50 (" The question of general Cunningham v. Underwood, 53 C. C. A. 99,
character or reputation is one of difficult solu- 1 16 Fed. 803, 810. Yet the number of occasions
tion to a majority of witnesses. Counsel should mai/ indicate in a given case that the witness
be allowed to vary the phraseology, or sever the has not sufficient knowledge (ante, § 692) of the
constituent parts or members of the sentence, community's opinion: 1883, Com. t. liogers, 136
so as to place the subject within the compre- Mass. 158 (hearing the character spoken of ou
hension of the witness "). two occasions ; excluded).
1 Accord: 1878, Robinson u. State, 16 Pla.
1961
§ 1614 EXCEPTIONS TO THE HEAESAY EULE. [Chap. LIH
his neighbors for truth? Could the answer be anything but this; ' I never heard it ques-
tioned, discussed, spoken of ; and yet I know it to have been the most exalted ' ? " i
But it is obvious that this form is no su£B.cient indication for a reputation
of had character.^ Moreover, so far as the answer " I never heard his char-
acter discussed " implies that the witness has not had opportunities for learn-
ing what the reputation was, he is not a qualified witness to reputation (on
the principle of § 692, ante)?
§ 1615. Reputation must be in Neighborhood of Residence. That discus-
sion and comparison which contribute to the complete estimate and lead to
the general consensus {ante, § 1610) must in the beginning obtain its data
from the experience of those who have had direct contact with the person in
question ; and it is these data of personal observation which are indispensable
as a foundation of the final reputation. Such experience of observed instances
is to be found only among those with whom the person ordinarily associates,
— that is, among the members of the community in which he resides and
acts :
1887, Brace, J., in Waddingham v. Hulett, 92 Mo. 533, 5 S. W. 27: "[The witness to
reputation] must be able to state what is generally said of the person by those among
whom he dwells, or with whom he is chiefly conversant, — not by those among or with
whom he may have sojourned for a brief period, and who have had neither time nor op-
portunity to test his conduct, acts, or declarations, or to form a correct estimate of either.
A man's character is to be judged by the general tenor and current of his life, and not by
a mere episode in it."
Accordingly, it is commonly said that the place or community of which the
reputation is predicated must be the " neighborhood" where he has "resided."
1 Accord: 1796, Learv's Trial, 26 How. St. N. W. 40+ (an instruction referring to this as
Tr. 337, 338; 1848, Hadjo v. Gooden, 13 Ala. the "very best evidence," held not improper);
720, 722; 1853, Dave v. State, 22 id. 23, 37 1885, French o. Sale, 63 Miss. 386, 393; 1878,
(disapproving an instruction asking for a knowl- State v. Grate, 68 Mo. 26 ; 1893, State v. Bran-
edge of what "the majority of the neighbors" denburg, 118 id. 181, 185, 23 S. W. 1080; 1898,
said or thought; because a majority may not State v. Shafer. 22 Mont. 17, 55 Pac. 526; 1902,
have expressed themselves) ; 1876, Childa v. Matusevitz v. Hughes, 26 id. 212, 66 Pac. 939,
State, 53 id. 28, 29 ; 1888, Hussey v. State, 87 68 Pac. 467 ; 1877, Matthewson v. Burr, 6 Nebr.
id. 129, 6 So. 420 (admitting the question 312, 317'; 1880, State v. Pearce, 15 Nev. 188,
whether he had ever heard of the defendant 190; 1900, State v. Saidell, 70 N. H. 174, 46
having any other "difficulty" than the one in Atl. 1083; 1839, People v. Davis, 21 Wend,
question); 1888, Moulton v. State, 88 id. 121, 315; 1873, State v. Speight, 69 N. C. 72, 75,
6 So. 758; 1902, People v. Adams, 137 Cal. 5S0, semble : 1860, Gandolfo v. State, 11 Oh. St. 114,
70 Pac. 662; 1854, Taylor v. Smith, 16 Ga. 7; 117; 1850, Morss v. Palmer, 15 Pa. 51, 57;
1888, Flemister v. State, 81 id. 768, 771, 7 S. E. 1898, Millikeu v. Long, 188 id. 411, 41 Atl.
642; 1892, Hodgkins v. State, 89 id. 761, 15 540; 1859, Boon ii. Weathered, 23 Tex. 675,
S. E. 695; 1897, Powell v State, 101 id. 9, 29 681 ; 1902, Foerster v. U. S , 54 C. C. A. 210,
S. E. 309 ; 1882, State v. Nelson, 58 la. 208, 12 116 Fed. 860; 1880, Davis u. Franke, 33 Gratt.
N. W. 253; 1895, State v. Case, 96 id. 264, 65 425; 1870, Lemons v. State, 4 W. Va. 755,
N. W. 149; 1900, State v. Keenan, 111 id. 286, 760, Contra: 1877, Walker u. Moors, 122 Mass!
82 N. W. 792 ; 1891, Day v. Ross, 154 Mass. 14, 502 (a confused opinion, but apparently exclud-
27 N. E. 676 (compare the citations infra) ; ing such a form of answer) ; 1867, Lyman u.
1878, Lenox v. Fuller, 39 Mich. 271; 1895, Philadelphia, 56 Pa. 488, 502, semiZc.
Conkey v. Carpenter, 106 id. 1, 63 N. W. 990; " 1884, Pickens v. State, 61 Miss. 563, 567,
1876, State v. Lee, 22 Minn. 407, 409 (admis- semhle; 1885, French v. Sale, 63 id. 386, 393.
sible, if the witness has been " acquainted with ^ In Com. v. Lawler, 12 All. 585 (1866),
the accused for a considerable time, under such the question, " Have you heard his character
circumstances that he would be more or less called in question'!" was excluded merely be-
likely to hear what was said about him"); cause the witness seemed to know nothing of
1886, Bingham v. Bernard, 36 id. 114, 116, 30 the reputation.
1962
§§ 1580-1626]
llEPUTATION OF CHAEACTER.
§1616
The phrasings and definitions of this community and of the time of sojourn
vary considerably ; but nothing should turn upon precise words ; and the
general idea may be with sufficient correctness phrased in various forms.^
§ 1616. Same: Reputation in a Commercial or other Circle, not the Place
of Residence. In a community where the ordinary person's home is under
the same roof as his store or workshop, or where the stores, workshops,
offices, and homes are all collected within a small village or town group, and
one's working associates are equally the neighbors of one's home, there is but
one community for the purpose of forming public opinion, and there is but
a single capacity in which the ordinary person can exhibit his character to
the community. In other words, he can there have but one reputation.
But in the conditions of life to-day, especially in large cities, a man may have
one reputation in the suburb of his residence and another in the commercial
or industrial circles of his place of work ; or he may have one reputation in
his place of technical domicile in New York and another in the region of the
miaes of Michigan or the iron-foundries of Ohio where his investments call
him for supervision for long portions of time. There may be distinct circles
of persons, each circle having no relation to the other, and yet each having a
reputation based on constant and intimate personal observation of the man.
There is no reason why the law should not recognize this. The traditional
phrase about " neighborhood " reputation was appropriate to the conditions
1 1852, Boawell v. Blackman, 12 Ga. 593
(reputation in a county, i. e. a district larger
than the mere neighborhood, admitted); 1863,
Aurora v. Cobb, 21 Ind. 510 ("friends and
neighbors"); 1877, Rawles v. State, 56 id. 441
(limiting it definitely to the neighborhood of
residence ; not accepting it from " the neighbor-
hood where she is best known ") ; 1879, Smock
V. Pierson, 68 id. 405 (" neighborhood where he
resides"; 1887, Hanners v. McClelland, 74 la.
322,37 N. W. 389 (in a town near by, admitted) ;
1895, State v. Brown, 55 Kan. 766, 42 Pac. 363
(a twenty-four hours' stay in a place, held suf-
ficient to found a reputation for unchastity ;
" there is no fixed time within which a reputa-
tion may be gained ; . . . she may have gained
considerable notoriety in twenty-four hours ") ;
1859, Henderson v. Haynea, 2 Mete. Ky. 342,
348 ("those among whom he dwells or with
whom he is conversant ") ; 1895, Combs v. Com.,
97 Ky. 24, 29 S. W. 734 (in a county where he
did not reside, excluded) ; 1889, State v. John-
son, 41 La. An. 574, 7 So. 670 (" general reputa-
tion," held improper, without the addition " in
the neighborhood in which he lived"); 1859,
Powers V. Presgroves, 38 Miss. 227, 241 (the
reputation must be "where he is best known,"
" by those among whom 'he dwells or with whom
he is chiefly conversant," but no definite limits
to that neighborhood can be set) ; 1885, French
V. Sale, 63 id. 386, 392, 394 (the testimony is
"usually and necessarily indefinite" as to the
dimensions of the neighborhood ; the witness
must he able to say " as a matter of conscience
that he knows the common or general opinion
of the community or neighborhood on the sub-
ject") ; 1874, Warlick v. Peterson, 58 Mo. 408,
416 (must be at place of residence) ; 1887,
Waddingham ». Hulett, 92 id. 533, 5 S. W. 27
(reputation at a place where the person visited
3 months, etc., excluded); 1893, State v. Pet-
tit, 119 id. 410, 414, 24 S. W. 1014 (reputa-
tion where the deceased had lived only 8 or 9
months, held receivable in trial Court's dis-
cretion) ; 1899, State u. McLaughlin, 149 id. 19,
50 S. W. 315 (residence for 6 or 8 months,
sufiicient) ; 1900, State v. Cushenberry, 157 id.
168, 56 S. W. 737 (reputation where he resided
only a few weeks, allowed on the facts) ; 1860,
Keiley v. Proctor, 41 N. H. 140, 146 (the ques-
tion " Are you acquainted with F.'s reputation
for truth in the vicinity or neighborhood where
he resides ? " was urged by counsel as the
proper form ; Sargent, J. : " So doubt the form
of the question as insisted on by the defendant
is substantially correct ; . . . but a man's neigh-
borhood extends for these purposes as far as he
is well known, — as far as people are acquainted
with him and his character " ; and the question,
" Are you acquainted with F.'s reputation for
truth'?" was held sufiicient); 1862, Griffin v.
State, 14 Oh. St. 63 (excluding a reputation in
a town 26 miles from the defendant's home, in
a community " not having the means of forming
from personal acquaintance an intelligent judg-
ment on the subject " ); 1859, Boon v. Weathered,
23 Tex. 675, 686 (" in the community where he
lives or is best known ") ; 1 896, State v. Gush-
ing, 14 Wash. 527, 45 Pac. 145 (reputation in
a town a few miles from the witness' home,
admitted).
VOL. II. —61
1963
§ 1616 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LIII
of the time ; but it should not be taken as imposing arbitrary limitations not
appropriate in other times. Alia tempora, alii mores. What the law then
and now desired was a trustworthy reputation ; if that is to be found among
a circle of persons other than the circle of neighbors about a sleeping-place,
it should be received. This modern application of the traditional principle
was foreshadowed in the following exposition of one of the greatest American
judges :
1855, Lumpkin, J., in Keener v. Slate, 18 Ga. 221 (murder in a brothel, by a railway-
conductor) : " We distinctly repudiate the doctrine that a man may not have different
general characters, adapted to different circumstances and localities, — that is, a character
for rail-cars and a character for the brothel, a character for the church and one for the
street, a character when drunk and a character when sober. ... A schoolmaster is in-
dicted for an assault and battery upon one of his pupils; he defends himself under his
acknowledged right to inflict moderate correction; the charge puts in issue the character
of the teacher for violence ; and where, pray, would you go to ascertain that character,
— among his fellow-men, or in the school-room ? There can be but one response to this
question. An officer in the army or navy is tried for cruelty to a soldier or sailor ; what
has his reputation in the community generally to do with the trait of character involved
in the issue? It is in the barracks and on board the man-of-war that we look for what
we wish to learn."
1903, Fish, J., in Atlantic §• B. R. Co.. v. Reynolds, 117 Ga. 47, 43 S. E. 456 : " As the
general reputation of a man is usually formed in the neighborhood where he spends most
of his time, and most frequently comes in social and business contact with his fellow-men,
it is usual to limit the inquiry as to a witness' general character to his general reputation
in the neighborhood where he lives ; that is, where he has his home. We do not think,
however, there is any hard and fast rule which requires this to be done in every possible
case. The very reason for so limiting the inquiry generally may be a good reason for
allowing more latitude in an exceptional case. The reason for so limiting the inquiry gen-
erally, as already indicated, is that the place in which to ascertain a man's true reputation
is the place where people generally have had the best opportunities of forming a correct
estimate of his character. It is obvious that this may not, in every instance, be the neigh-
borhood where a man's home is situated. . . . We apprehend that there may be cases in
which a person has established no general reputation in the immediate neighborhood of
his home, but has established such a reputation elsewhere. This may arise from the fact
that his home is located in one place and his daily business or work is carried on in
another, in which latter place he spends nearly all of his time, and hence is well known
to people generally, while he rarely comes in social or business contact with people, out-
side of his family circle, in the neighborhood of his home."
The judicial rulings on this class of questions show frequently a defiance of
common sense. " The rules of evidence," said Lord EUenborough,^ " must
expand according to the exigencies of society." It is to be hoped that the
due expansion will here be found.^
1 1812, Pritt w. Fairclough, 3 Camp. 305. ham, 64 Cal. 157, 163, 30 Pac. 620 ("gen-
2 The cases on both sides are as follows : eral reputation " among the police-officers of a
1664, Turner's Trial, 6 How. St. Tr. 565, 607 certain town, excluded ; reputation must be
(robbery; defendant's reputation "upon the " amongst his neighbors" or " amongst those who
Exchange " asked for) ; 1860, Mose v. State, 36 have had opportunities of ascertaining his repu-
Ala. 211, 229 (a family of eight or ten whites tatioii as generally estimated ") ; 1901, Giordano
and about fifty blaclss ; the reputation of a slave v.. Brandywine Granite Co., 3 Pennewill Del.
therein, admitted, because in such cases "it is a 423, 52 Atl. 332 (reputation among fellow-work-
gcneral character and often the only character men, allowed to be shown by their expressed
wliieh the slave has") ; 1883, People v. Mark- refusal to work with him because incompetent;
1964
§§ 1580-1626] EEPUTATION OF CHARACTER. § 1618
§ 1617. Time of Reputation; (1) Reputation before the Time in Issue. A
reputation to character must ordinarily be thought of as contemporary with
the character, i. e. as predicating the person, then existing in the community,
to possess a certain trait. There is thus no objection, so far as concerns the
reputation-element, to using a prior reputation, — for example, of Doe, in
1895, for peaceableness as evidential on a charge of murder in 1900 ; for the
reputation in 1895 predicates the trait as then existing, and does not pretend
to predicate anything as to 1900 ; and the real question to be met is a ques-
tion of relevancy, namely, whether the existence of the trait in 1895 is evi-
dence of its existence in 1900. That it is evidential for that purpose is
unquestionable {ante, §§ 60, 191, 927). The judicial views thereon have
already been considered in dealing with Witness' Cliaracter in Impeach-
ment (ante, § 928).
§ 1618. Same: (2) Reputation after the Time in Issue. Where the repu-
tation offered is of a time subsequent to the time of the act in issue, the objec-
tion is of a different sort, ^nd involves directly the trustworthiness of the
reputation-evidence. There is here no difficulty from the point of view of
the relevancy of character ; a man's trait or disposition a month or a year
after a certain date is as evidential of his trait on that date as his nature a
month or a year before that date ; because character is a more or less per-
manent quality and we may make inferences from it either forward or back-
ward {ante, §§ 60, 921). Assuming, then, that we could ascertain the actual
disposition (for example) of Doe one year after the time of a murder charged,
there is no objection to using it as a basis for inferring his disposition a year
before. But can we assume that it is his real disposition or trait, one year
later, which is before us ? Is his reputation, as obtaining one year later, then
a trustworthy index to his actual character? This question may be an-
swered differently for a party and for a witness.
sensible opinion; Lore, C. J., diss ) ; 1903, At- his cruelty to them, held not equivalent to a
lantic & B. 11. Co. v. Keynolds, 117 Ga. 47, 43 reputation) ; 1897, Williams v. U. S., 168 U. S.
S. E. 456 (reputation "up and down the W. 382, 18 Sup. 92 (extortion by a custom-house
A. L. Railroad, where he worked," admitted ; officer ; the defendant's bad reputation " in the
quoted supra) ; 1890, Sage v. State, 127 Ind. Ih, Custom House," excluded, because it prevailed
27, 26 N. E. 667 (reputation in H. at a time only " among the limited number of people em-
when the witness had been seven years confined ployed in a particular public building"; this is
in jail at I., excluded); 1902, Bonaparte v. not an enlightened ruling; the place where a
Thayor, 95 Md. 548, 52 Atl. 496 (reputation for reputation would be best founded is the place of
veracity "among his business associates," ex- daily employment) ; 1900, State i). Hilberg, 22
eluded) ; 1878, State v. Clifton (30 .La. An. 951 Utah 27, 61 Pac. 215 (reputation "in that pre-
(reputation for honesty in the defendant's board- cinct," excluded ; unsound),
ing-house, excluded) ; 1876, Thomas v. People, In the following two cases, trial instructions
67 N. Y. 224 (reputation in prison, admitted ; too long to be quoted, dealing with a reputation
"there was a large community there, and a man among criminals, gamblers, etc., were passed
can have a general character there as well as upon: 1896, Smithy. U. S., 161 U. S. 85, 16 Sup.
elsewhere") ; 1897, Youngs v. K. Co., 154 id. 483 ; Brown v. U. S., 164 id. 221, 17 Sup. 33;
764, 49 N. E, 1106, "7 Hun 612 (reputation the rulings of the majority opinion are possibly
among fellow-employees, not received to show correct in theory ; but in so far as they disap-
the fact of incompetency) ; 1898, Park «. R. Co., proved the well-worded instructions of Mr. J.
155 id. 215, 49 N. E. 674 (same) ; 1903, Lamb !>. Parker, one of our greatest American trial
Littman, 132 N. C. 978, 44 S. E. 646 (reputa- judges, they are lamentable quibbles; compare
tiou of a boss, for incompetence, among mill § 21, avte.
hands, admitted ; but this was a fellow-servant Distinguish the use of a.\i employee's reputation
case); 1877, Snyder v. Com., 85 Pa. 519, 522 io shoyi the employer's knowledge of incompetence
(the complaints of the defendant's children about (ante, § 249).
1965
§ 1618 EXCEPTIONS TO THE HEARSAY EULE. [Chap. LIII
(a.) Where the desired character is that of a party — for example, the de-
fendant in a criminal charge, the prosecutrix in a rape charge, or the plaintiff
in a statutory action for seduction — , it is obvious that after the charge has
become a matter of public discussion, and partisan feeling on either side has
had an opportunity to produce an effect, a false reputation is likely to be
created, — a reputation based perhaps in part upon rumors about the very
■ act charged or upon the interested utterances of either party. The safeguards
of trustworthiness are here lacking :
1863, Battle, J., ia State v. Johnson, Winston 151 : " Upon principle, it ought to be
confined to the time when the charge was first made. A different rule will expose the
defendant to the great danger of having his character ruined or badly damaged by the arts
of a popular or artful prosecutor, stimulated to activity by the hope of thus making his
prosecution successful. Evidence of character is of the nature of hearsay ; and the gen-
eral rule in relation to that kind of testimony is that it shall not be received if the hearsay
be post litem motam. ' '
18S2, Hines, J., in White v. Com , 80 Ky. 486 : " The only reason for stopping the in-
quiry at either point [time of discovery or time of arrest] is that the probabilities of inno-
cence derived from previous good character may not be destroyed or embarrassed by the
fact that the offence under consideration has been committed. . . . After the discovery
that an offence has been committed, a previous good character may be destroyed and a
bad one created by discussion of the circumstances connected with the offence, as well
before as after the formal charge by legal proceeding is had."
Accordingly, it is generally agreed that a reputation at any time after a
charge published, or other controversy begun, is not admissible.^ But, since
the above reasoning is directed against the risk of an unduly hostile reputa-
tion, it would seem that a party might properly be allowed to invoke in his
favor a good reputation post litem motam?
(2) In the case of a witness, the conditions above pointed out do not
usually affect his reputation, because his conduct is not the subject of the
^ 1871, Bronn v. State, 46 Ala. 175, 184 (of in issue) ; 1870, Wroe v. State, 20 Oh. St. 472 (of
defendant, after the time of the alleged crime, defendant, after the time of the offence, ex-
excluded); 1896, White v. State, 111 id. 92, 21 eluded); 1893, State v. Kenyon, 18 K. I. 217,
So. 330 (defendant's character while in jail, 223, 26 Atl. 199 (reputation oi deceased for quar-
•excluded ; tlie time must be at or before the relsomeness, since his death, excluded) ; 1900,
crime charged) ; 1882, White v. Com., 80 Ky. State v. Taylor, 57 S. C. 483, 35 S. E. 729
485 (bad reputation of a defendant, limited to (prosecutrix in rape ; reputation after the date
the time before discovery of the offence charged) ; charged, excluded) ; 1897, State v. King, 9 S. D.
1873, People v. Brewer, 27 Mich. 133, 135 (se- 628, 70 N. W. 1046 (seduction ; reputation after
diiction; the woman's reputation post litem, ex- accusation made, excluded) ; 1895, Lea v. State,
eluded) ; 1861, State v. Forschner, 43 N. H. 89, 94 Tenn. 495, 29 S. W. 900 (of defendant, after
90 (rape; bad reputation of the prosecutrix for charge made, excluded); 1898, Spurr v. U. S.,
chastity, as formed since the time of the alleged 31 C. C. A. 202, 87 Fed. 701 (defendant's repu-
rape, excluded, as" inducing attempts to destroy tation since the time of the act charged, ex-
thech.Ti'actei' of a prosecutrix in order to defeat eluded); 1819, Carter u. Com., 2 Va. Cas. 169
the prosecution") ; 1900, State v. Sprague, 64 (of defendant, after charge made, excluded).
N. .T. L 419,45 Atl. 788 (rape-assault; defend- Contra, but missing the point: 1839, Com. v.
ant's bad reputation for violence after the time Sacket, 22 Pick. 396 (" it may be of little weight,
of arrest, or of commission of the offence — the but still it will have some bearing, as commonly
opinion not clearly distinguishing — , inadmis- the descent from virtue to crime is gradual ").
sible ; the rule not to apply to the reputation of For the exclusion of reputation after publica-
a witness or of a defendant as witness); 1877, tlon of n defamatori/ cAarpc, offered to mitigate
State V. Laxton, 76 N. C. 216, 218 (of defend- damages in an action for defamation, see ante,
ant, after charge made, excluded); 1851, Cin- §74.
cinuati & F. M. Ins. Co. u. May, 20 Oh. 224 (of ^ Contra : 1896, Moore v. State, 96 Tenn.
a pilot, confined to the time before the accident 209, 33 S. W. 1046.
1966
§§ 1580-1626J REPUTATION OF CHARACTER. § 1619
controversy. Moreover, although a witness may sometimes be so related to
the controversy or to the parties as to have suffered in consequence from
partisan feeling, yet the situation hardly requires that as a general rule a
limitation to reputation ante litem motam should be enforced. Accordingly,
the reputation of a witness even up to the time of testifying is generally
regarded as admissible.^ Where the witness is also the party, it would seem
that the rule applicable to parties should apply.*
§ 1619. Other Principles affecting Reputation, discriminated (Character in
Issue, Witness' Knowledge of Reputation, Belief on Oath). (1) That reputa-
tion is distinct from character has already been noted {ante, § 1608). Hence,
where " character " is in issue upon the pleadings, it is important to observe
whether by the nature of the case it is the actual character or the reputation
that is in issue. If the latter, then reputation is provable as a fact in issue ;
if the former, then reputation, though not in issue, is admissible under the
present exception as evidence of the actual character. The classes of cases
involving such questions have already been examined (ante, §§ 70-80,
202-212).
(2) The witness who testifies to reputation must, like other witnesses,
have had opportunities to acquire personal knowledge of the fact to which
he testifies. Hence it is commonly said that he must be a resident of the
neighborhood or otherwise so placed as to be acquainted with the reputation ;
this principle has already been examined {ante, § 692).
(3) A witness to reputation may on cross-examination he tested, like other
witnesses, as to the sources of his knowledge ; whether he may be asked
what persons he has heard speak unfavorably, or be otherwise so tested, rests
on principles already examined (ante, §§ 988, 1111).
(4) Whether a witness testifying that he would not believe another upon
oath may base that belief upon the other's reputation, is dealt with elsewhere,
under the Opinion rule (post, § 1980), in treating of personal opinion to
character.
* 1899, Thrawley v. State, 153 Ind. 375, 55 Amidon ». Hosley, 54id. 25 (holding, conversely,
N. E. 95 (bad reputation of defendant's wife at that a person offering his witness' good charac-
time of trial, admissible, even though affected ter may confine his inquiry to the time before
by the charge against defendant); 1878, J'isher suit begun). Conira: 1864, Keid v. Keid, 17
V. Conway, 21 Kan. 18, 25 (holding that the N. J. Eq. 101 (opinions obtained by an agent
basing of the reputation upon rumors circulated sent to the neighborhood to malce inquiries) ;
by enemies, etc., goes merely to the weight of 1879, Johnson u. Brown, 51 Tex. 65, 76 (reputa-
tbeevidence); 1858,Mask''. State,36 Miss. 77, 89 tion arising from the very will-contest before
(testimony to bad reputation admitted, though the court, excluded). Compare the cases ante,
the witness h.ad never heard it called in ques- § 692, excluding testimony by one sent to ;a
tion till after the present dispute); 1838, State neighborhood to investigate reputation ; in part
V. Howard, 9 N. H. 486 (although a concerted they proceed upon this ground,
attempt to injure the witness' reputation was In general, a reputation may be stated to
alleged to have been made by the opponent) ; have been good up to a certain time, and tlien
1881, Dollner r. Lintz, 84 N. Y. 669 (reputation bad thereafter: 1858, Quinsigamoud Bank i-.
at the time of trial, admissible to show reputation Hobbs, 11 Gray 252, 257.
at the time the deposition was taken) ; 1897, * 1898, State v. Marks, 16 Utah 204, 15 I'ac.
Smith V. Hine, 1.79 Pa. 203, 36 Atl. 222 (that 1089 (not after time of offence, "or at least,"
the reputation is founded on partisan opinions time of arrest ; here applied to a defendant as
goes to weight onlv) ; 1900, Fossett v. State, 41 witness). Contra: 1889, Com. v. Sourigan, 89
Tex. Cr. 400, 55 S.'W.497 ; 1868, Stirling v. Ster- Ky. 313, 12 S. W. 5.50 ; 1 900, State v. Sprague,
ling, 41 Vt. 80, 96 (bastardy ; complainant's repu- N. J., supra, note 1 ; 1900, Renfro v. State, 42
tation since controversy begun, admitted) ; 1882, Tex. Cr. 393, 56 S. W. 1013.
1967
§ 1620 EXCEPTIONS TO THE HEAESAY EULE. [Chap. LIII
§ 1620. Kind of Character ; (1) Chastity ; (2) House of Ill-fame ; (3) Com-
mon Offender. That species of character of which reputation is strictly and
properly a trustworthy evidence is moral character, i. e. traits of permanent
moral constitution, such as peaceableness, honesty, \eracity, and the like, or
their opposites. But obviously the line between those personal qualities
which are properly provable by reputation and those which are not is a diffi-
cult one to draw ; it cannot be definitely fixed by way of deduction from
principle. The considerations of principle (noted a7ite, § 1610) still leave
it arguable in some classes of cases whether reputation is a proper source of
proof within the general scope of the principle.
(1) As to chastity or its opposite, no doubt has ever arisen, except in a
single and peculiar action. In the statutory action or prosecution for seduc-
tion of a woman of "previously chaste character," the question first arises
whether this " character " is actual character or reputation. Assuming the
former view to be taken, then, although actual character is the fact in issue,
there is no reason why reputation should not be admissible, as in all other
issues, to prove the chaste or unchaste character.^ But in some jurisdictions
the Court's adoption of the view that actual character is the fact in issue
has led it erroneously to exclude reputation as evidence of that character.^
It may be added that reputation is of course not admissible to prove a spe-
cific act of fornication,^ or a condition of pregnancy.*
(2) On a charge of keeping a house of ill-fame or a disorderly house, the
same distinction between actual character and reputation serves to solve the
difiiculty. (a) So far as the offence involves in the issue the kind of per-
sons resorting to it, it is possible to maintain that either their reputation or
their actual character is the fact in issue ; if the former, then those persons'
reputation is of course admissible as being in issue ; ® if the latter, then their
reputation is admissible under the present exception as evidence of their per-
sonal moral character, and upon this point, naturally, no doubt has ever
arisen, (h) So far as the habitual use or " character '' of the house itself is
concerned, the same question again arises, whether the fact in issue is the
" fame," i. e. reputation of it, or the actual habit and character of it. If we
accept the former view (and here much depends on the statutory wording),
1 1897, Carroll v. State, 74 Miss. 688, 22 So. material) ; 1863, Kenyon v. State, 26 N. Y. 203,
295 (where chastity is essential, in a charge 208 ("It could not have been intended to sub-
of seduction, reputation is evidence of actual stitute reputation for character in this its pri-
chastity). mary and true sense"; but Balcom, J., diss.).
2 1888, Hussey v. State, 86 Ala. 34, 36, 5 So. Contra, semble : 1893, State v. Lenihan, 88 la.
484; 1871, State v. Shean, 32 la. 88,92 (because 670, 673, .56 N. W. 292 (good repute, admitted
actual chastity is required, reputation^ is ex- in rebuttal); 1892, State ». Lockerby, 50 Minn,
eluded, either of nnchastity or chastity, its use 363, 52 N. W. 958 (admissible "in corrobora-
as hearsay to prove the actual character being tion " of the complaining witness).
ignored ; but then, to disprove the commission For this difference of statutes and their in-
of acts of lewdness charged, the actual charac- terpretation, see more fully ante, § 205.
ter is declared relevant, and reputation is re- * 1822, Treat v. Browning, 4 Conn. 408, 414
ceived to prove it ; a paradoxical ruling) ; 1899, (fornication and the having a bastard child) ;
State V. Reinheimer, 109 id. 624, 80 N. W. 669 1839, Overstreet v. State, 3 How. Miss. 328
(unchaste repute, excluded) ; 1898, State v. Sum- (charge of foruication).
mar, 143 Mo. 220, 45 S. W. 254 (bad repute * 1835, Boies ». McAllister, 12 Me. 308.
excluded, because by statute chastity was im- • The cases are collected ante, §§ 78, 204.
1968
§§ 1580-1626]
EEPUTATION OF CHARACTER.
§ 1621
then reputation is of course admissible as being in issue.® But if we take
the latter view, then, the actual use and character of the house becoming the
issue, the question arises whether reputation is admissible under the present
exception to prove it. The subject of the reputation is not an individual's
moral trait, and therefore is without the ordinary scope of the present excep-
tion. Nevertheless, having regard to the circumstances from which such a
reputation arises, and the difficulty of obtaining other evidence in the ordi-
nary way from unimpeachable witnesses, it seems unquestionable that repu-
tation should be admitted as trustworthy and necessary evidence.''
(3) The offence of being a common thief, or a common gambler, or other
common offender, or of keeping a common nuisance, is one which by some
Courts, sometimes under statute, has been regarded as provable by reputa-
tion ; ^ but perhaps the notion here enters that reputation is a part of the
issue. The mode of proving such an offence by specific acts has already been
noticed (ante, § 203).
Whether the foregoing offences can lawfully be constituted by repute alone
is a constitutional question already dealt with (^ante, § 1354).
§ 1621. Same : (4) Sanity ; (5) Temperance ; (6) Expert Qualifications ;
(7) Negligence; (8) Animal's Character. (4) So far as the principle of
necessity (ante, § 1610) is concerned, there is usually ample available evi-
' The cases are collected ante, § 78.
' Admitted : 1901 , Re Fong Yuk, 8 Br. C. 1 18,
120 (deportation of a prostitute ; reputation of
the honse in which the woman formerly lived,
admissible) ; 1899, Demartiui v. Anderson, 127
Cal. 33, 59 Pac. 207 (lease for a house of prosti-
tution ; reputation of the house, admitted) ;
1885, HogauK. State, 76 Ga. 82; la. Code 1897,
§ 4944 (on a charge of keeping a house of ill-
fame, the prosecution may introduce " general
reputation of such house as so kept " to show its
character); 1896, Egan v. Gordon, 65 Minn.
505, 68 N. W. 103 (in an action to recover
rent); 1895, State v. Hendricks, 15 Mont. 194,
39 Pac. 94 (provided there is corroboration by
facts of such use) ; 1838, State v. McDowell,
Dudley 345, 350 (" In a case in which character
is its very gist, I am willing to make tliat which
everybody says the evidence ") ; Wis. Stats.
1898, § 4581 ,9(iu prosecutions for keeping a house
of ill-fame, etc., " common or general reputa-
tion "is admissible). Excluded: 1876, Wooster
./. State, 55 Ala. 221 ; 1903, Kamsey v. Smith,
— id. ^ , 35 So. 325 (sale of a piano to a plain-
tiff for use in a liouse of prostitution ; reputa-
tion not admitted to show the character of the
house) ; 1846, Caldwell v. State, 17 Conn. 467,
472; 1900, Howard v. People, 27 Colo. 396, 61
Pac. 595 (keeping a house of ill-fame ; petition
of citizens to city council, inadmissible as con-
stituting reputation) ; 1898, ShafFer v. State,
87 Md. 124, 39 Atl. 313 (keeping a disorder-
ly house ; its reputation inadmissible, until St.
1892, c. 522) ; 1885, Handy v. State, 63 Miss.
208; 1864, State v. Foley, 45 N. H. 466; 1863,
Kenyon v. State, 26 N. Y. 203, 209 (" The gen-
eral rule is that hearsay evidence is incompe-
tent to establish any specific fact which is in
its nature susceptible of being proved by the
witnesses who speak from their own knowl-
edge"); 1897, Nelson .;. Terr., 5 Okl. 512, 49
Pac. 920; 1815, Com. v. Stewart, 1 S. & U. 342;
1833, U. S. V. Jourdine, 4 Cr. C. C. 338, over-
ruling U. S. V. Gray, 1826, 2 id. 675 ; 1895, State
V. Plant, 67 Vt. 454, 32 Atl. 237 ; 1894, Barker
V. Com., 90 Va. 820, 20 S. E. 776.
So, also, excluding reputation of the defendant
himself as keeper (compare the cases cited ante,
§ 78, note 3) : 1858, State v. Hand, 7 la. 411 ;
1833, U. S. V. Jourdine, 4 Cr. C. C. 338 ; U. S.
V. Warner, ib. 342.
It may be noted that in these cases it is n6t
always easy to determine whether the Court
proceeds upon the present principle or that of
§ 78, ante.
» 1 901 , Kissel v. Lewis, 1 56 Ind. 233, 59 N. E.
478 (disorderly beer-garden as a nuisance ; rep-
utation admitted, partly as affecting the depre-
ciation of the value of plaintiff's premises) ;
la. Code 1897, § 5003 (" general reputation " of
a place, admissible for prosecution to show the
character of the place on a charge of keeping an
opium resort) ; 1878, World v. State, 50 Md. 49,
54 (reputation admissible under St. 1864, c, 38,
to show a defendant to be a " common thief " ;
and though the reputation must be shown to
exist within the statutory period, reputation be-
fore that time is relevant to show it) ; Or. Cr.
C. § 1924 (opium offences; "general reputation
shall be received in evidence to establish the
character of any building as an opium den ") ;
Vt. St. 1894, §4529 (general reputation admis-
sible to prove a place a liquor-nuisance). Con-
tra: 1834, Com. V. Hopkins, 2 Dana Ky. 419
(common gambler).
1969
§ 1621 EXCEPTIOIsrS TO THE HEARSAY EULE. [Chap. LIII
dence of sanity or insanity other than reputation. So far as the principle
of trustworthiness {ante, § 1610) is concerned, although all the conditions
that obtain for moral character obtain equally for sanity, yet opinions
upon a standard of sanity differ so much that a reputation, without the
opportunity to test its ground by cross-examination, would hardly be trust-
worthy. It is thus generally agreed that reputation is not admissible for
this purpose :
1849, Nisbet, J., in Foster v. Brooks, 6 Ga. 290 : "If reputation of insanity is competent,
then reputation of sanity must be also. By this kind of evidence a fool may be proved a
■wise man, and a philosopher a fool. Public opinion declared Copernicus a fool when he
promulgated the planetary system, and Columbus a fool when he announced the sublime
idea of a New World. Hazardous in the extreme would it be to the rights of parties
under the law, if they were allowed to depend upon the opinion of a neighborhood of the
sanity of individuals. Hearsay evidence is excluded because a witness ought to be sub-
jected to cross-examination, that being a test of truth. It ought to appear what were his
powers of perception, his opportunities of observation, his attentiveness in observing,
the strength of his recollection, and his disposition to speak the truth." ^
The use of a verdict or other inquisition of lunacy rests on a different prin-
ciple {post, § 1671).
(5) A person's character or habit as temperate, or the reverse, in the use
of intoxicating liquor, is sufficiently open to other sources of proof ; and rep-
utation is therefore unnecessary.^
(6) The qualifications of an expert or professional man, whether as a wit-
ness testifying on matters of skill, or as a party charged with lack of skill,
ought to be provable by reputation. So far as personal opinion by witnesses
is excluded {post, § 1984), there remains practically no other mode of proof
than the present, except such tests as can be obtained on the stand by cross-
examination {ante, §§ 938, 992). Moreover, professional (not popular) repu-
tation is usually highly trustworthy. The rulings have generally excluded
reputation ; ^ but the question arises comparatively seldom, partly because
1 Acmrd : 1 882, People v. Pico, 62 Cal. 53 ; members of the family, so as to avoid compli-
1880, State v. Hoyt, 47 Conn. 518, 539 (here for cated issues as to particular conduct),
paternal insanity) ; 1900, Snell v. U. S., 16 D. C. ^ jggs^ Stevens a. R. Co., 100 Cal. 554, 570,
App. 501, 511 ; 1860, Choice v. State, 31 Ga. 35 Pac. 165 (as to intemperance, excluded; the
424,470; 1838, Yeates v. Reed, 4 Blackf. 463, opinion misunderstands the point); 1894, Cos-
466 ; 1885, Walker i). State, 102 Ind. 507, 1 N. E. grove v. Pitman, 103 id. 268, 273, 37 Pac. 232,
856 ; 1876, Ashcraft v. De Armond, 44 la. 233 semble (reputation not sufficient to prove a habit
(rumor in a neighborhood, inadmissible) ; 1868, of intemperance) ; 1823, Brindle i'. M'llvaine, 10
Townsend v. Pepperell, 99 Mass. 40, 46 (settle- S. & R. 285 (" causes of physical depravity of
ment of insane pauper; common speech of the the mental faculties are susceptible of a particu-
neighborhood as to her insanity, excluded) ; lar description by those who have witnessed
1884, Barker v. Pope, 91 N. C. 168; 1894, State them ").
V. Coley, 114 id. 879, 88.5, 19 S. E. 705 ; 1875, ' Excluded: 1870, DePhue v. State, 44 Ala.
Lancaster Co. Nat'l Bank v. Moore, 78 Pa. 407, 39 (witness) ; 1886, Holtzman v. Hoy, 118 111.
415 ; 1881, Yanke v. State, 51 Wis. 469, 8 N. W. 534, 8 N. E. 832 (negligent treatment by a pliy-
276. Contra: 1760, Earl Ferrers' Trial, 19 sician ; professional skill held to be iu issue, but
How. St. Tr. 932, 937 (confinement in a private not provable for defendant by his reputation
asylum, admitted); 1868, Com. v. Andrews, "in the community and amongst the profes-
Mass., Davis' Rep. 134 (murder; insanity of sion"; the opinion is unsatisfactory, because
deceased ancestors, held provable by reputation) ; it ignores the offer of reputation in the pro-
1859, State v. Christmas, 6 Jones L. 471, 475 fession ; no authority cited) ; 1901, Clark v.
(admissible to prove hereditary insanity of other Com., Ill Ky. 443, 63 S. W. 740 (abortion; de-
1970
§§ 1580-1626] EEPUTATIOJSr OF CHARACTER. § 1623
the character of parties in this respect is seldom relevant or in issue (ante,
§ 64), partly because it is usually not profitable by such evidence to dis-
credit skilled witnesses, and partly because of the reluctance of professional
men to bear such testimony.
(7) Character as to negligence or care is provable when it is in issue (ante,
§§ 80, 208); and is also usable evidentially, under certain conditions, to
show the doing or not doing of a specific act (ante, § 65). The character
thus relevant has always been regarded as properly provable by reputation.*
From such a hearsay use of reputation, distinguish its use circumstantially to
show notice, for example, by an employer, of the employee's character (ante,
§§ 246-260).
(8) That an animal's character, as properly as that of a human being, may
be the subject of a trustworthy reputation, for reasons similar to those al-
ready noted (ante, § 1610), would seem a just conclusion.^
H. Sundry Facts.
§ 1623. Reputation to prove Solvency or Wealth. When the fact to be
proved is the condition of a merchant's pecuniary resources as to solvency
— that is, the ability practically to pay at maturity an ordinary debt — ,
considerations analogous to those already noted (ante, §§ 1586 and 1610) as
making reputation a necessary and a trustworthy source of evidence seem
to be here fulfilled. The argument has been well expounded in the follow-
ing passages :
1845, Goldlhwaite, J., in Lawson v. Orear, 7 Ala. 786 : "Insolvency is rather the con-
clusion which the law deduces from other facts, than the fact itself, and therefore it is
quite probable that a witness would not be permitted to state this conclusion independent
of the facts from which it was to be inferred. But in most cases, where the question of
insolvency is collaterally involved [here the question was whether a purchase was made
with notice of insolvency], it is nothing more than the attempt to show that the partic-
ular individual is not in a condition to be trusted as a debtor. In all such cases the
common question which suggests itself to every mind is, Why is he not to be so trusted?
or, AVhat is his condition as to property or credit or the want of either ? . . . From the
very nature of things it is scarcely possible that there can be any certain means of acquir-
ing exact information upon such a subject. ... In all, or in a Very large majority of all
fendant's reputation as to skill as a surgeon, to the vicions propensities of the horse ") ;
excluded; no authorities cited) ; 1897, People u. 1852, Heath v. West, 26 id. 191, 199 (to the
Holmes, 111 Mich. 364, 69 N. W. 501 (reputation value of a horse, excluded) ; 1872, McMillan v.
not admissible to show an expert's competence). Davis, 66 N. C. 539 (Reade, J., admitting repu-
Compare the cases cited an(«, §§64, 67, 199, 208. tatiou of foal-getting qualities, value being in
* See the citations iu the sections above issue : " We suppose that with all stock-raisers
mentioned, where this is assumed. The only there are two principal inquiries in selecting a
excluding decision seems to be Baldwin e. R. sire: What is his pedigree'!, and. Is he a sure
Co., 1855,4 Gray 333 (character as a careless foal-getter 1 Other qualities are judged of by
driver). inspection; these cannot be. How are these
° The rulings differ: 1901, -Tones w. Packet inquiries to be answered? The most usual
Co., — Miss. — , 31 So. 201 (pedigree of a and satisfactory, if not the only way, is by
jack, allowed to be proved by reputation) ; 1865, reputation ").
Whittier o. Franklin, 46 N. H. 23, 27 ("the For the use of a registry of pedigree of an
character of a person for truth, it may well be animal, see post, § 1706. For the admissibility
presumed, cannot be bad without being known of the auimal's character itself, see ante, §§ 68,
to the public ; but it may be otherwise in respect 201 .
1971
§ 1623 EXCEPTIONS TO THE HEARSAY RULE. [Chap. LIII
the trading classes, the information of the seller as to the ability of the purchaser to pay is
derived from reputation and most generally from no other source whatever. To shut out
from the jury the same evidence upon which the entire community acts would present a
singular result.^
1863, Atwater, J., in Nininger v. Knox, 8 Minn. 140, 147: "It would seem that the
fact of insolvency, from its nature, must usually exclude direct proof, as no one save the
person himself could ordinarily safely swear that a man had no property, or insufficient
to meet his liabilities, at a given time. . . . The fact of insolvency is of such a nature that
the opportunities of the public for forming a correct judgment in the matter must be
usually as ample as those existing to form a judgment of character in any other respect,
and indeed more so."
In the greater number of jurisdictions, reputation is accordingly admissible
to show insolvency or solvency.^ Distinguish the circumstantial use of repu-
tation as evidence of knowledge by a purchaser of a debtor's insolvency
{ante, § 253).
It has also been held occasionally that the wealth of a party (usually in
proving damages for breach of promise of marriage) may be evidenced by
reputation ; ^ but this seems unsound.
§ 1624. Reputation to prove Partnership. The use of reputation to prove
the existence of an agreement of partnership does not seem justifiable either
by the necessity of the case or by the trustworthiness of the evidence ; for
not only may the testimony of the alleged partners, their admissions, and the
written agreement if any, be ordinarily obtained, but the possibilities of a
misleading reputation are particularly strong. These considerations have
been more than once clearly set forth judicially :
1835, Waile, J., in Brown v. Crandall, 11 Conn. 92, 95: "[The rule is that] hearsay
evidence is incompetent to establish any specific fact which fact is in its nature suscep-
tible of being proved by witnesses who speak from their own knowledge. ... [If repu-
tation here were admissible,] a person of doubtful credit might cause a report to be
circulated that another was in partnership with him, for the very purpose of maintaining
his credit. His creditors also might aid in circulating the report for the purpose of fur-
nishing evidence to enable them to collect their debts. There is nothing in the nature of
the fact to be proved requiring the admission of such testimony."
1838, Cowen, J., in Halliday v. McDougall, 20 Wend. 81, 90 (after quoting the reason-
^ Citing Weeks v. Sparke, ante, § 1587. 736; 1858, Price v. Mazange, 31 id. 701, 708
* Accord: 1845, Lawson v. Orear, 7 Ala. 786, (fraudulent mortgage) ; 1876, Holten v. Board,
per Goldthwaite, J.; 1861, McNeill o. Arnold, 55 Ind. 199; 1903, Wolfson v. Allen B. Co.,
22 Ark. 482, semhle ; 1871, Hayes v. Wells, 34 120 la. 455, 94 N. W. 910 (financial condition of
Md. 518 ; 1864, Angell v. Rosenbury, 12 Mich, vendees procured by the plaintiff as commission
241, 252; 1863, Nininger v. Knox, 8 Minn, agent for the defendant); 1903, Coleman r.
140, 147 (quoted supra); 1875, Burr v. Wilson, Lewis, 183 Mass. 485, 67 N. E. 603 (but here
22 id. 206, 211 ; 1893, West v. Bank, 54 id. 466, admitted to corroborate testimony to an indors-
469, 56 N. W. 54 ; 1895, Hahu v. Penney, 60 id. er's waiver of presentment).
487, 62 N. W. 1129; 1900, Garrett v. Weinberg, » Accord: 1895, Stratton v. Dole, 45 Nebr
59 S. C. 162, 37 S. E. 51 ; 1846, Hard v. Brown, 472, 63 N. W. 875 ; 1864, Kniffen v. McConnell,
18 Vt. 97 (wliere the solvency of R. was ma- 30 N. Y. 285, 2S9 ; in Stnte v. Cochran, 1828, 2
terial in determining the adequacy of his note Dev. 65, reputation was thus ad mitted on an-
as "suiBcient security" under a contract); other issue. Contra: 1894, Bliss v. Johnson,
1860, Noyesw. Brown, 32 id. 430 ; 1860, Bank of 162 Mass. 323, 38 N. E. 446 (not received to
Middlebury v, Rutland, 33 id. 430. Contra : show lack of means of one claiming to have
1837, Ward u. Herndon, 5 Port. 382, 385 (unde- loaned money); 1902, Birum v. Johnson 87
elded ; here, of a debtor guaranteed by the de- Minn. 362, 92 N. W. 1.
fendant) ; 1843, Branch Bank v. Parker, 5 Ala.
1972
§§ 1580-1626] EEPUTATION OF SOLVENCY, ETC. § 1625
ing in Brown v. Crandall, supra) : " It may be added that, independent of sinister mis-
representations, there is scarcely a question upon which common reputation is more
fallible. A contract of partnership is in nature incapable of being defined by laymen ;
and whether an apparent partnership be really so or a contract of some other character is
often a most embarrassing legal question with the ablest lawyer. General reputation of
the more ordinary contracts, the legal nature and effect of which are understood by men
of business in general, would be a much more proper subject of proof by general report ;
this the law always rejects, and yet I am not aware that there is a necessity for a resort
to such proof in the one case more than the other."
Accordingly, it is to-day almost everywhere agreed that reputation is not
admissible to prove the existence of a partnership.^
But in two other ways reputation may here become admissible. (1) By the
substantive law of partnership liability, one holding himself out as partner
may be charged as such, though no agreement was actually made ; and to
suffer a reputation of partnership to exist may in law amount to a holding
out; thus, the existence of such a reputation may become itself a fact in
issue, irrespective of the truth of the matter reputed :
1889, Earl, J., in Adams v. Morrison, 113 N. Y. 152, 156, 20 N. E. 829 : "When there
is a general reputation that two or more persons are copartners, and they know it, and
permit other persons to act upon it, and to be induced thereby to give credit to the re-
puted firm, these facts may be proved and may be sufficient sometimes to estop the reputed
members of the firm from denying the copartnership in favor of outside parties."
(2) For the purpose of establishing knowledge by a customer of the dissolu-
tion of a partnership, the reputation of its dissolution may be admissible as
circumstantial evidence of such knowledge {ante, § 255).
§ 1625. Reputation to prove (1) Iiegal Tradition, (2) Incorporation. (1) So
far as the custom and consent of the legal profession is of weight in deter-
mining the application of a principle of law, it seems to have been recognized
that common opinion or reputation in the profession may be taken as evi-
dence of this custom or consent.^
(2) By statute in many jurisdictions, reputation has been made evidence
1 1893, Knard v. Hill, 102 Ala. 570, 574, 15 eluded) ; 1898, Farmers' Bank v. Saling, 33 Or.
So. 345 (excluded) ; 1 900, St. Louis & Tenn. R. 394, 54 I'ac. 190 (excluded); 1824, Allen v.
P. Co. V. McPeters, 124 id. 451, 27 So. 518; Rostain, 11 S. & R. 362, 363, 373 ("not evi-
1853, Sinclair v. Wood, 3 Cal. 98, 100 (ex- dence, except in corroboration of a previous tes-
cluded) ; 1835, Brown v. Crandall, 11 Conn. 92, timony ") ; 1845, Hicks v. Cram, 17 Vt. 449, 456
95 (inadmissible; quoted supra); 1871, Bowen (inadmissible).
V. Rutherford, .60 111.41 (excluded); 1809, Bry- ^ 1761, Buckinghamshire v. Drury, 2 Eden
den V. Taylor, 2 H. & J. 396, 400 (reputation Ch. 60, 64 (Lord Hardwicke, L. C. : " The opinion
held "not sufficient") ; 1835, Goddard v. Pratt, of conveyancers in all times, and their constant
16 Pick. 412, 434 (not admitted to show a disso- course, is of great weight " ; here, as to whether
lution) ; 1842, Grafton Bank v. Moore, 13 N. H. an infant is bound by a marriage jointure) ;
99 (excluded) ; 1817, Whitney v. Sterling, 14 1892, Venable v. R. Co., 112 Mo. 103, 125, 20
John. 215 (admitted); 1833, M'Pherson v. S. W. 493 (" common consent and opinion of the
Rathbone, II Wend. 96 (same) ; 1838, Halliday profession," considered to show that dower may
V. McDougall, 20 id. 81, 89; 22 id. 264 (held be barred in eminent domain),
inadmissible, without other evidence ; quoted Distinguish the reference to mere contempo-
supra) ; 1842, Smith v. Griffith, 3 Hill 333, 336 raneous usage as an aid to interpretation : 1821,
(inadmissible); 1889, Adams v. Morrison, 113 Packard w. Richardson, 17 Mass. 122, 144; 1873,
N. Y. 152, 156, 20 N. E. 829 (reputation not Scanlan v. Childs, 33 Wis. 663, 666; and cases
admissible in any case to prove the fact) ; 1850, cited post, § 2464.
Inglebright v. Hammond, 19 Oh. 343 (ex-
1973
§ 1625
EXCEPTIONS TO THE HEARSAY EULE. [Chap. LITI
of the existence of a corporation or of certain kinds of incorporation ; ^ and
this is not inconsistent with the general considerations of policy already
noted {ante, § 1610).
§ 1'626. Reputation to prove Sundry Pacta. Apart from the classes of
cases above enumerated, there seem to be none which fulfil the requisite con-
siderations of policy already noted {ante, §§ 1586 and 1610), as justifying the
resort to reputation ; and in the remaining rulings the use of reputation to
prove sundry specific acts or conditions has usually been repudiated.^
' Ariz. P. C. § 1657 ("general reputation"
admissible to prove incorporation, on charge of
forgery of bill or note of company) ; Arlt. Stats.
1894, §§ 2906, 2907 (banking company's exist-
ence, etc., in criminal cause, provable by "gen-
eral reputation"); Cal. P. C. 1872, § 1107
(forgerj'j etc,, of bank-bill; incorporation prov-
able by generfil reputation) ; Colo. Annot. Stats.
1891, § 1267 (" general reputation," admissible
to p;-ove incorporation of bank or company in
prosecution for forgery of its bill or note) ; Ida.
Kev. St. 1887, § 7868 (forging, etc., a bill, etc., of
incorporate! company or bank; "general repu-
tation," admissible to prove incorporation) ; la.
Code 1897, § 4870 (general reputation, admis-
sible to prove incorporation of bank, etc., on
charge of forging bill, etc.) ; Kan. Gen. St. 1897,
c. 102, § 223 (banking corporation in criminal
cause ; incorporation provable by reputation) ;
Mo. Rev. St. 1899, § 2634 (in criminal causes,
the " existence, constitution, or powers of any
bank company or corporation " are provable by
"general reputation"); 1860, State v. Fitz-
simmons, 30 Mo. 237, 239 (statute allowing in
criminal cases the existence, etc., of a banking
company to be proved by reputation ; applied on
a trial for selling counterfeit notes) ; Mont.
P. C. 1895, § 2084 (like Cal. P. C. §1107) ; §2086
(so also for any criminal case in proving corpo-
rate existence, powers, or constitution) ; Nev.
Gen. St. 1885, § 4645 (on trial for forgery, etc.,
of bill or note of " incorporated company or
bank," general reputation admissible to prove
incorporation) ; N. D. Rev. C. 1895, § 8216 (like
Cal. P. C. § 1107); 1846, Reed v. State, 15 Oh.
217, 224 (existence of a foreign banking corpora-
tion, in prosecutions for counterfeiting) ; Okl.
Stats. 1893, §5229 (like Cal. P. C. § 1107); S. D.
Stats. 1899, § 8673 (like Cal. P. C. § 1107) ; Utah
Rev. St. 1898, § 4857 (like Cal. P. C. § 1107);
§ 4859 (like Mont. P. C. § 2086) ; Wyo. Rev. St.
1887, § 933 (on trial for forgery, etc., of bill or
note of incorporated company or bank, incorpo-
ration is provable by " general reputation").
1 1872, DeKalb Co. v. Smith, 47 Ala. 412
(action for personal barm done by disguised
assailants ; " rumor " admitted to show that the
plaintiff had many enemies, in corroboration of
the plaintiff); 1888, Louisville & N. R. Co. v.
Hall, 87 id. 708, 715, 722, 6 So. 277 (that a per-
son had been killed at a low bridge ; excluded) ;
1889, State e. Evans, 33 W. Va. 417, 424, 10
S. E. 792 (excluded for showing one man's " in-
fluence " over another) ; 1903, Louisville & N. T.
Co. V. Jacobs, 109 Tenn. 727, 72 S. W. 954 (repu-
tation as to ownership of locomotives causing a
nuisance, excluded). Statutes have sometimes
interfered : Oh. Rev. St. 1898, § 4427, par. 6
("The character of the trust or combination
alleged [as illegal] may be established by proof
of its general reputation as such ") ; Tex. P. C.
1895, §§ 983, 988 c (character of illegal trust or
combination, provable by " its general reputation
as such").
END OF VOLUME II.
1974