CJoruf U IGatw ^^1:11001 Sltbtarg Cornell University Library KF 8935.W65T7 V.2 A treatise on the system of evidence in 3 1924 020 192 369 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020192369 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 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. 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. 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.. 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. 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, 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. 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.. 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. 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 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 .: 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'. 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, . § 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 (.. 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. 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 . 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. 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. 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 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 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. 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. 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